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Petitioner released on bail after being arrested under sections 341/323/324/307/354/325/379/504/506/34 of the Indian Penal Code: High court of Patna

This is in connection with Pupri PS Case No. 198 of 2020 dated 27.07.2020. The petitioner was arrested under Section 341IPC, “Punishment for wrongful restraint,” section 323, “Punishment for voluntarily causing hurt”, section 324, “Voluntarily causing hurt by dangerous weapons or means”, section 307, “Attempt to murder”, section 354, “Assault or criminal force to woman with intent to outrage her modesty,” section 325, “ Punishment for voluntarily causing grievous hurt”, and sections 379/504/506/34 of the Indian Penal Code. This Judgement was given in the High court Of judicature at Patna by Honorable Mr. Justice Ahsanuddin Amanullah on the 3rd of August 2021 in the case of Md. Tasdik versus the state of Bihar criminal miscellaneous No. 20516 of 2021, Mr. Pushpendra Kumar represented as the advocate for the petitioner and Mr. Atul Chandra represented as the additional public prosecutor for the state of Bihar. The proceedings of the court were held through video conference.   The following are the facts of the case, the petitioner was accused along with seven others were armed with various weapons and committed assault on the informant, the petitioner was accused of trying to inflict a knife blow on the head of the injured but somehow the injured saved himself and the knife caused wounds in his stomach. The counsel for the petitioner held that according to the FIR, the dispute was between the co-accused and the informant, the co-accused had taken four biscuit packets without paying and has threatened the informant saying that his grandfather was the sarpanch (head of the village) and along with others assaulted the informant. But the petitioner had no concern with this dispute and was not related to the co-accused. The only connection is that the petitioner is a co-villager and was aware of the co-accused. However, according to the injury report, it clearly shows a lacerated wound on the right parietal region and nothing else and hence wouldn’t constitute grievous hurt. Therefore such allegations against the petitioner regarding the knife blow were falsely implicated further the counsel submitted that the petitioner has no criminal antecedent. The additional public prosecutor submitted that the petitioner must be held liable because he was a party to the attack on the informant. However, regarding the injuries, the report shows no sign of injury on the stomach, and only a lacerated wound was found on the head caused by a blunt substance. After considering the facts and circumstances of the case the court decided that the petitioner will be released on bail upon furnishing bail bonds of Rs. 25,000/- (twenty-five thousand) with two sureties of the like amount each to the S.D.J.M., in connection with the Pupri PS Case No. 198 of 2020, subject to the conditions laid down in Section 438(2) Cr.P.C., 1973 “(i) that one of the bailors shall be a close relative of the petitioner, (ii) that the petitioner and the bailors shall execute the bond and give an undertaking with regard to the good behavior of the petitioner, (iii) that the petitioner shall cooperate with the Court and police/prosecution.”

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 205121 Arising Out of PS. Case No. 198 Year 2020 Thana PUPRI District Sitamarhi Md. Tasdik aged about 25 years Gender Male son of Md. Modassir resident of Village Gaddha Police Station Pupri District Sitamarhi The State of Bihar ... Petitioner s ... Opposite Party s Appearance : For the Petitioner s For the State CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Mr. Pushpendra Kumar Singh Advocate Mr. Atul Chandra APP The matter has been heard via video conferencing. 2. The case has been taken up out of turn on the basis of motion slip filed by learned counsel for the petitioner on 28.07.2021 which was allowed. 3. Heard Mr. Pushpendra Kumar Singh learned counsel for the petitioner and Mr. Atul Chandra learned Additional Public Prosecutor for the State. 4. The petitioner apprehends arrest in connection with Date : 03 08 2021 Patna High Court CR. MISC. No. 205121 dt.03 08 2021 2 5 Pupri PS Case No. 198 of 2020 dated 27.07.2020 instituted under Sections 341 323 324 307 354 325 379 504 506 34 of the Indian Penal Code. 5. The allegation against the petitioner and seven others is of being armed with various weapons and of assault on the informant side and specifically against the petitioner is that he tried to inflict knife blow on the head of the injured Md. Pyare but he saved himself and finally the knife is said to have caused wound in his stomach. 6. Learned counsel for the petitioner submitted that as per the FIR itself the dispute was between co accused Md. Shaan and the informant and it is stated that Md. Shaan had taken four packets of biscuit without paying and had threatened that his grand father was the Sarpanch and he along with others had assaulted the informant but the petitioner has no concern with such dispute as he is not related to Md. Shaan. It was submitted that only because he is a co villager and known to Md. Shaan he has been made accused. Learned counsel submitted that besides having no criminal antecedent the injury report of Md. Pyare clearly shows that there was only a lacerated wound on right parietal region and no other wound and the same was also caused by hard and blunt substance Patna High Court CR. MISC. No. 205121 dt.03 08 2021 3 5 which completely negates the allegation that he had inflicted knife blow firstly on the head and then causing injury in the stomach. It was submitted that for the same incident Pupri PS Case No. 1920 has been filed by co accused Md. Chand Alam under Sections 341 323 354 504 379 34 of the Indian Penal Code against the informant side. 7. Learned APP submitted that the petitioner was also party to the attack on the informant side. However in view of copy of the injury report of Md. Pyare who is said to have been assaulted by the petitioner by knife he could not controvert that no injury on the stomach has been found and only lacerated wound on the head has been found and that too caused by hard blunt substance. 8. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties the Court finds substance in the contention of learned counsel for the petitioner. It appears that there was fight for some dispute between the informant and co accused Md. Shaan and the petitioner has also been named as being one of the persons who had come in support of Md. Shaan and assaulted the informant party and there being also a counter case and the specific and direct allegation of knife attack on Md. Pyare by the petitioner Patna High Court CR. MISC. No. 205121 dt.03 08 2021 4 5 on the head and thereafter causing injury in the stomach being totally not corroborated by the injury report of the said Md. Pyare the Court is inclined to allow the prayer. 9. Accordingly in the event of arrest or surrender before the Court below within six weeks from today the petitioner be released on bail upon furnishing bail bonds of Rs. 25 000 with two sureties of the like amount each to the satisfaction of the learned S.D.J.M. Pupri Sitamarhi in Pupri PS Case No. 198 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 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. 10. It shall also be open for the prosecution to bring any violation of the foregoing conditions of bail by the petitioner to the notice of the Court concerned which shall take immediate action on the same after giving opportunity of hearing to the Patna High Court CR. MISC. No. 205121 dt.03 08 2021 5 5 11. The petition stands disposed of aforementioned terms. Anjani

The parties cannot be permitted to approbate and reprobate in the same breath: Delhi High Court

A litigant can take different stands at different times but cannot take contradictory stands in the same case. A party cannot be permitted to approbate and reprobate on the same facts and take inconsistent shifting stands consistently. Having questioned the maintainability of the arbitration agreement, earlier, the party challenging it cannot rely on the agreement in a later proceeding. This remarkable judgment was passed by the Delhi High Court in the matter of SAGAR RATNA RESTAURANTS PVT. LTD V D S FOODS & ORS. [CM(M) 71/2021 & CMs 3098/2021, 10016/2021] by Honourable Justice Navin Chawla. This petition was filed to challenge the order passed by the learned District Judge, (Commercial Court-02), South District, whereby they allowed the application of the respondents filed under Section 8 of the Arbitration and Conciliation Act, 1996 and referred the parties to arbitration and subsequently dismissed the suit filed by the petitioner as not maintainable. The petitioner is a registered owner of the trademark “SAGAR”, “RATNA” and “SAGAR RATNA” which have been duly renewed by the petitioner from time to time. The petitioner contends that it entered into a Franchise Agreement and a Supplementary Agreement with the respondents wherein the respondents were appointed as Franchisees and granted a license to use the said trademark. As certain disputes arose; the petitioner claims to have sent a cease-and-desist notice to the respondents to terminate the Franchise Agreement and thereafter filed a petition under Section 9 of the Act and restrained respondents from using the trademark of the petitioner. The petitioner thereafter invoked the Arbitration Agreement and on the failure of the respondents to agree to the appointment of an arbitrator. But the respondents challenged that. So, the tribunal had refused to grant interim protection to the petitioner, accepting the objection of the respondents and observing prima facie doubt on the maintainability of the arbitration, the petitioner filed an application before the learned Arbitrator, praying for leave to withdraw the arbitration claim to institute a civil suit. However, the respondents challenged that too therefore the petitioner submitted that the respondent has succeeded in their plea on lack of arbitrability of the dispute, cannot now challenge the maintainability of the suit as well. The Court noted that a bare perusal of the above sequence of events would show that the respondents have been taking inconsistent stands at different stages, as per their convenience. The HC relied on Suzuki Parasrampuria Suitings Pvt. Ltd. v. Official Liquidator of Mahendra Petrochemicals Ltd. (In Liquidation) & Ors., (2018) 10 SCC 707 and Amar Singh vs. Union of India, (2011) 7 SCC 69 and asserted that inconsistent pleas by the litigants will be not entertained in courts of law. “This Court wants to make it clear that an action at law is not a game of chess. A litigant who comes to court and invokes its writ jurisdiction must come with clean hands. He cannot prevaricate and take inconsistent positions.” Also, HC stated that arbitration is an Alternate Dispute Resolution mechanism that is resorted to by the parties with their consent. So if the respondents have, in the earlier instance, clearly envisaged an intent not to be bound by the Arbitration Agreement so far as the claim of the petitioner to the trademark is concerned. The petitioner has now accepted that opposition and has invoked the ordinary jurisdiction of a Civil Court seeking enforcement of its rights in the trademark. Thus, it is evident that both the parties have become ad idem that the dispute raised by the petitioner is not arbitrable in nature, the parties could not have been referred to arbitration.

IN THE HIGH COURT OF DELHI AT NEW DELHI CM(M) 71 2021 & CMs 3098 2021 10016 2021 Date of Decision: 22.04.2021 SAGAR RATNA RESTAURANTS PVT. LTD. ..... Petitioner Through Mr.Ajay Gulati Adv. D S FOODS & ORS. Through Mr.S.K.Jain Ms.Stuti Jain Mr.Akshu Jain Advs. ..... Respondents HON BLE MR. JUSTICE NAVIN CHAWLA NAVIN CHAWLA J.This hearing has been held by video conferencing. This petition has been filed by the petitioner challenging the order dated 27.02.2020 passed by the learned District Judge Commercial Court 02) South District allowing the application of the respondents herein filed under Section 8 of the Arbitration and Conciliation Act 1996accepting the plea of the respondents that the parties be referred to arbitration and dismissing the suit filed by the petitioner as not maintainable. It is the case of the petitioner that it is the registered owner of the trade mark “SAGAR” “RATNA” and “SAGAR RATNA” which has been duly renewed by the petitioner from time to time. The CM(M) No.71 2021 Page 1 petitioner contends that it entered into a Franchise Agreement dated 06.06.2013 and a Supplementary Agreement dated 08.10.2014 with the respondents wherein the respondents were appointed as Franchisees and granted licence to use said trade mark. As certain disputes arose the petitioner claims to have sent a cease and desist notice dated 31.10.2018 to the respondents to terminate the Franchise Agreement. The petitioner thereafter filed a petition under Section 9 of the Act being ARBP No. 269 2018 wherein vide order 27.12.2018 the respondents were restrained from using the trademark of the The respondents challenged the above order before this Court in form of an appeal being FAO No. 36 2019. The same was dismissed vide order dated 29.01.2019. The petitioner thereafter vide notice dated 27.02.2019 invoked the Arbitration Agreement contained in the Franchise Agreement and on failure of the respondents to agree to the appointment of an arbitrator filed a petition under Section 11 of the Act being ARB.P. 239 2019. The said petition was allowed by this Court vide its order dated 07.05.2019 appointing an arbitrator. The petitioner thereafter filed an application under Section 17 of the Act before the Arbitrator. The learned Arbitrator was pleased to dismiss the said application vide his order dated 13.08.2019. In the said order the learned Arbitrator recorded the objection of the respondents to the maintainability of the arbitration proceedings as CM(M) No.71 2021 Page 2 franchisee agreement does not 8. On the other hand Ld. Counsel for the respondents submits that the terminated for want of legal notice in terms of the Franchisee Agreement because 45 days’ notice has not been served by the claimant. Secondly that as per the ratio laid down by the Hon ble Apex Court in A.Ayyasamy Vs. A. Paramasivam & Ors.10 SCC 386 the disputes in relation to trademarks and patents are not arbitrable. Thirdly that the relief against alleged infringement does not jurisdiction of the arbitrator as it does not arise out of the the arbitration contract between agreement. Ld. Counsel has also relied upon Emaar MGF Land Ltd. Vs. Aftab Singh 2018 SCC online SC 2771 and Steel Authority of India Ltd. Vs. SKS Ispat & Ltd. 2014 SCC online Bom. 4875." the parties containing fall within as under: The petitioner herein filed an appeal under Section 37(2)(b) of the Act challenging the above order of the learned Arbitrator being ARB No.41 2019. In the said appeal the respondents again contended The matter is not arbitrable in as much as the Trademark Act provides a mechanism and machinery for determination of such rights and any such determination would be a judgment in rem having far reaching consequences and for such as such the arbitration cannot be a remedy 10. The learned Additional District Judge 02 vide order dated 14.10.2019 was pleased to dismiss the appeal of the petitioner observing as under: CM(M) No.71 2021 Page 3 18. So far as the question No.1 is concerned it is settled law that no injunction can be granted in case the contract is determinable. It has been consistently held by the Superior Courts that even if the termination is illegal the remedy would be damages. This Court is prima facie of the view that having admitted the factum of termination as stands recorded in the order dated 29.01.2019 passed by the Hon ble High Court in FAO No.36 2019 and atleast having acknowledged that the email dated 20.08.2018 of the appellant which clearly the respondents cannot have continued to use the trademark trade name belonging to the appellant. As per the law of land the remedy at best would be damages even if the respondents succeeds in proving that the termination was unjust or unlawful. termination 19. The question No.2 however alters the orientation of the proceedings. The contention of the appellant side is that the very agreement fundamentally is an agreement granting permission to use the Intellectual Property Rights and the dispute would be a “dispute” within the four corners of the arbitration clause seems to be impressive arguments. One might feel tempted to accept it as the sole determinative factor. The fact however remains that such disputes have been decisively left out of the scope or purview of the arbitration law. No doubt the fact situation strongly leans in favour of the appellant the significant question which emerges in the present proceedings is one of the remedy and not the merit alone. 20. The facts involved quite predicatively leads towards the grant of injunction but the present lis itself is besieged by inherent lack of jurisdiction. The contention of the learned counsel for the appellant that the case laws cited by the respondent side at best can be treated as obiter as none of the case directly involves the determination of the question in relation with IPR and further that since the agreement is fundamentally an agreement involving the Intellectual Property Rights itself the respondent cannot question arbitrability of the dispute cannot be accepted. However anomalous dispiriting or unjust it may appear to the appellant the jurisdiction would CM(M) No.71 2021 Page 4 remain major determinative and factors in too significantly in the present proceedings. 21. The jurisdiction of a Court Tribunal Forum to try a given specie of matter is a rigid concept and cannot be over sighted. It assumes centre stage whenever challenged. The factual upright involved in this case in the opinion of this Court would neither subsume nor trivialize nor even observe the lack of jurisdiction which is clearly precepted by law as has been observed by the Hon ble Supreme Court in A.Ayyasamy v. A. Paramsivam & Ors. 2016 SCC OnLine SC 1110 and Emaar MGF Land Ltd. v. Aftab Singh 2018 SCC OnLine 2771 as also the other case laws cited by the respondent side. Jurisdiction appears to be a vantage point for the respondent in the present matter and any grant of injunction in ignorance thereof would lead to crisis of a different dimension. In so far as the impugned order is concerned even if this Court is of the view that another view could have possibly been taken in regard with the notice of termination or that the Learned Arbitrator could also have reflected upon termination more emphatically the fact remains what would still weigh more heavily is the lack of jurisdiction. This Court would not hesitate in accepting the contention of the Learned counsel for the respondents that the question of jurisdiction could be raised subsequently even if it was not raised at the time of appointment of arbitrator." 11. Faced with the above order which had refused to grant interim protection to the petitioner accepting the objection of the respondents and observing prima facie doubt on the maintainability of the arbitration the petitioner filed an application before the learned Arbitrator praying for leave to withdraw the arbitration claim to CM(M) No.71 2021 Page 5 institute a civil suit. In the application the petitioner pleaded and prayed as under: That it is relevant to mention here that the Ld. ADJ while dismissing the appeal held that on the termination of the franchisee agreement the licensor i.e. the respondents herein do not have any right to use the trademark of the claimant however it was decided that jurisdiction to adjudicate upon the trademark matters as the disputes relating to trademark are non arbitrable. the arbitral xxxxxx It is therefore most respectfully prayed that this Hon ble Tribunal may be pleased to allow the claimant to withdraw its claim in order to raise the same before the appropriate court of law or pass any other order or relief which this Hon ble Tribunal may deem facts and fit and proper circumstances of the present case." 12. The learned Arbitrator by its order dated 11.12.2019 allowed the said application. 13. The petitioner thereafter filed the Suit wherein the present Impugned Order has been passed. 14. The respondents now filed an application contending that the dispute between the parties is arbitrable in nature. The said plea has been accepted by the learned Trial Court and the suit has been 15. The learned counsel for the petitioner submits that the respondents cannot be allowed to approbate and reprobate and must not be allowed to take inconsistent pleas in different proceedings. He CM(M) No.71 2021 Page 6 submits that the respondent having succeeded in their plea on lack of arbitrability of the dispute cannot now challenge the maintainability of the suit as well. 16. On the other hand the learned counsel for the respondents submits that the dispute between the parties is arbitrable in nature. He submits that therefore the Impugned Order has rightly allowed the application under Section 8 of the Act and referred the parties to arbitration. He submits that there was no final adjudication by the learned Arbitrator holding the dispute to be not arbitrable in nature. The petitioner therefore cannot rely upon the observation made by the learned Additional District Judge in appeal and the remedy of the petitioner should have been to challenge the said order. 17. He further submits that in any case this Court should not interfere in an arbitration matter in exercise of powers under Article 227 of the Constitution of India. In this regard he places reliance on the judgment of the Supreme Court in Bhaven Construction vs. Executive Engineer & Anr. 2021 SCC OnLine SC 8. I have considered the submissions made by the learned counsels for the parties. 19. As noted hereinabove there is no dispute on the existence of an Arbitration Agreement between the parties as contained in the Franchise Agreement dated 06.06.2013 executed between the parties. Disputes having arisen between the parties the petitioner invoked the Arbitration Agreement and the parties were referred to arbitration on a petition filed under Section 11 of the Act before the High Court. It was however the respondents who raised objection to the arbitrability CM(M) No.71 2021 Page 7 of the claim of the petitioner both before the learned Arbitrator as also before the learned Additional District Judge in the appeal. The learned Additional District Judge in his order dated 14.10.2019 though on merit found the petitioner to be entitled to an injunction refused to grant relief to the petitioner prima facie accepting the plea of non arbitrability of the dispute raised by the respondents. The petitioner accepted the above order and withdrew its claim before the learned Arbitrator to file the suit. 20. A bare perusal of the above sequence of events would show that the respondents have been taking inconsistent stands at different stages as per their convenience. On the petitioner invoking the Arbitration Agreement the respondents took a plea that the dispute raised is not arbitrable in nature. This submission found favour with the learned Appellate Court while dismissing the appeal of the petitioner filed under Section 37 of the Act. Faced with this situation the petitioner instead of challenging the said order accepted the objection of the respondents and withdrew its claim before the learned Arbitrator to file the suit in question. The petitioner therefore not only suffered an order but also changed its position to its detriment based on the submission made by the respondents. In Kiran Devi v. Bihar State Sunni Wakf Board & Ors. 2021 SCC OnLine SC 280 on inconsistent pleas being taken by a litigant the Supreme Court has held as under: “13. We have heard learned counsel for the parties and find that it is not open to the appellant at this stage to CM(M) No.71 2021 Page 8 dispute the question that the suit filed before the learned Munsif could not have been transferred to the Wakf Tribunal. The plaintiff had jurisdiction of the Civil Court in the year 1996. It is the Wakf Board 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. 14. 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 CM(M) No.71 2021 Page 9 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 the appellant.” In Suzuki Parasrampuria Suitings Pvt. Ltd. v. Official Liquidator of Mahendra Petrochemicals Ltd. & Ors. 10 SCC 707 the Supreme Court deprecated this practice of taking inconsistent pleas by a litigant to merely prolong the litigation in the following words: “12.A litigant can take different stands at different times but cannot take contradictory stands in the same case. A party cannot be permitted to approbate and reprobate on the same facts and take The untenability of an inconsistent shifting stands. inconsistent stand in the same case was considered in Amar Singh vs. Union of India 7 SCC 69 observing as follows: “50. This Court wants to make it clear that an action at law is not a game of chess. A litigant its writ jurisdiction must come with hands. He cannot prevaricate and take inconsistent positions.” CM(M) No.71 2021 Page 10 13.A similar view was taken in Joint Action Committee of Air Line Pilots’ Assn. of India vs. DG of Civil Aviation 5 SCC 435 observing: “12. The doctrine of election is based on the rule estoppel—the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppels in pais which is a rule in equity….. inconsistent pleas by a party makes its conduct far from satisfactory. Further the parties should not blow hot and cold by taking inconsistent stands and prolong proceedings unnecessarily.” 23. This Court in its judgment dated 27.05.2020 passed in CS(OS) 2454 2009 titled Parmod Kumar Jain & Anr. vs. Ram Kali Jain & Ors. has also held as under: 29. The question which arises for consideration is whether the Courts today can permit litigants coming before it to take a stand before the Court different from that they have been taking for long period of time before taxation and other authorities. In my view the Courts if permit the litigants to for the purposes of litigation take a different stand from what they have been taking while complying with various laws would be aiding and abetting such litigants to violate the laws particularly fiscal laws and would be permitting the litigants face from time to time to their advantage and to the detriment of public exchequer and the public at large. The same cannot be permitted. Reference in this regard can be made to Dr.Mukesh Sharma Vs. Dr. Maheshwar Nath Sharma 2017 SCC OnLine Del 7237 M s New Era ImpexPvt. Ltd. Vs. M s Oriole Exports Pvt. Ltd. 234 DLT 615 and M s to change CM(M) No.71 2021 Page 11 Moolchand Khairati Ram Trust Vs. Union of India 2016 SCC OnLine Del 2840." In Telefonaktiebolaget Lm Ericsson Publ) vs. Intex Technologies Ltd. 2015(62) PTC 90 this Court reiterated as under: 144. It is equally well settled that the party cannot be allowed to approbate or reprobate at the same time so as to take one position when the matter is going to his advantage and another when it is operating to his detriment and more so when there is a same matter either at the same level or at the appellate stage. 145. In the case of Dwijendra Narain Roy vs. Joges Chandra De MANU WB 0151 1923: AIR 1924 Cal 600 The Division Bench of the Calcutta High Court has succinctly held: It is an elementary rule that a party litigant cannot be permitted to assume inconsistent positions in Court to play fast and loose to blow hot and cold to approbate and reprobate to the detriment of his opponent. This wholesome doctrine the learned Judge held applies not only to successive stages of the same suit but also to another suit than the one in which the position was taken up provided the second suit grows out of the judgment in the first. Applying the said principles of law to the present case it is apparent that if the defendant is allowed to re agitate it would also lead to allowing the party to approbate and reprobate at the same time which is clearly impermissible. The plea is thus barred by way of principle of approbate or reprobate which is a facet of estoppels as the defendant had accepted the findings of the Division Bench and Single Judge. There are no subsequent events which have changed warranting re adjudication of the CM(M) No.71 2021 Page 12 It is also to be seen that arbitration is an Alternate Dispute Resolution mechanism which is resorted to by the parties with their consent. The parties have to be ad idem for the same. The respondents have in the earlier instance clearly envisaged an intent not to be bound by the Arbitration Agreement so far as the claim of the petitioner to the trademark is concerned. The petitioner has now accepted that opposition and has invoked the ordinary jurisdiction of a Civil Court seeking enforcement of its rights in the trademark. Where both the parties have become ad idem that the dispute raised by the petitioner is not arbitrable in nature the parties could not have been referred to arbitration. In this regard reference may be made to JMC ProjectsLtd. vs. Rites Ltd. 1632 2006) wherein this Court while dismissing an application under Section 8 of the Act observed as under: Since the parties are ad idem that the subject matter of dispute is not capable of being adjudicated by the arbitrators the suit must proceed. The defendant by his stand before the arbitrators has shown its unwillingness to have the dispute settled by arbitration and is not the present application thus 27. As far as the objection of the learned counsel for the respondents on the maintainability of the present petition is concerned in the present case the order in challenge is not one passed by the CM(M) No.71 2021 Page 13 learned Arbitrator but by a Civil Court. Though it is correct that in an order passed by the learned Arbitrator the jurisdiction of the Court is highly circumscribed and limited and can be invoked in only the most rare and exceptional cases in the present case the Impugned Order having been passed by a Civil Court and without taking into account the inconsistent stand taken by the respondents itself in my opinion the present petition warrants an interference by this Court with the Impugned Order. 28. Accordingly the Impugned Order cannot be sustained and is set 29. The application filed by the respondents under Section 8 of the Act shall be treated as dismissed. The suit being CS(Comm) No. 40 2020 is restored back to its original number. 30. The parties shall appear before the learned Trial Court on 11th May 2021 through VC or physically through counsels. 31. The interim order dated 29.01.2021 passed by this Court shall continue to operate till the further continuation vacation modification of the said order is considered by the learned Trial Court in accordance with law and upon hearing the parties. 32. The petition is allowed in the above terms. There shall be no order as to costs. CM(M) No.71 2021 Page 14 APRIL 22 2021 NAVIN CHAWLA J CM(M) No.71 2021 Page 15

Court can quash criminal charges for attempt to murder if parties have reached early settlement under Section 482 CrPC: High Court of Delhi

When an FIR is filed under section 307 for attempt to murder, and later a petition is filed asking the court to exercise its power under Section 482 CrPC to quash that petition because if, the court shall do so if an amicable settlement has reached between both the parties in the early stages of investigation. This was decided in the case of Mohd Umair vs. State of Delhi [CRL.M.C. 674/2021] in the High Court of Delhi by the Hon’ble Judge Subramonium Prasad. The facts of the case are that the respondent is a complainant who filed an FIR against the accused/petitioner of this case under Section 307 for attempt to murder. The accused was arguing with his mother, the complainant slapped him, he felt insulted and in anger he took a knife from a vegetable vendor and stabbed the complainant. The complainant has suffered grievous injuries and after taking the accused/petitioner in custody, he has been released on bail. This petition has been filed on the ground that after the intervention of family and friends, parties have stated to settle their dispute. The court while exercising its jurisdiction under section 482 Cr.P.C referred to a series of case laws where conflicting ratio were held. The circumstances vary in each case and so does the discretion of court to decide whether an FIR should or should not be quashed. With respect to its inherent power of jurisdiction, it referred to the Supreme Court judgement in Gian Singh v. State of Punjab (2012) 10 SCC 303 where it was held “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 (i) to secure the ends of justice, or (ii) to prevent abuse of the process of any court.” However, it also considered the view laid down in another case, where it was categorically stated that criminal proceedings carried under grave offences such as Section 307 IPC cannot be forgone because such provisions are not meant just to protect the individual but the society as a whole. This was the case of State of Rajasthan v. Shambhu Kewat, (2014) 4 SCC 149 where in clear terms, court showed how quashing of FIRs could undermine the very objective of criminal system using the following words “Taking a lenient view on a serious offence like the present, will 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” However, when the court decided in light of the facts of the present case, it observed that the two rival parties say that since they are neighbors that was the reason for restoring friendly ties. The court further stated that those criminal cases having overwhelmingly and predominantly civil character, arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves.

.....Respondents IN THE HIGH COURT OF DELHI AT NEW DELHI CRL.M.C. 674 2021 Date of decision: 12th March 2021 IN THE MATTER OF: MOHD UMAIR @ UMER Through Mr. Jaspal Singh Advocate ..... Petitioner STATEAND ORS & ANR Through Ms. Kusum Dhalla APP for the State along with SI Ram Niwas P.S. Chandni Mahal. Mr. Amit Yadav Advocate for the complainant. 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.50 2020 dated 26.03.2020 registered in Police Station Chandni Mahal Delhi for offence under Section 307 IPC. On a complaint of respondent No.2 FIR No.50 2020 has been registered. In the complaint it is stated that the complainant resides at H.No.536 Gali Hakim Ji Choori Walan Jama Masjid Delhi. It is stated that on 26.03.2020 at about 11:00 AM his neighbour Furkan called him and asked him to deliver some items to his house. It is stated that on the way to the house of Furkan the complainant respondent No.2 met the accused who was arguing with his mother. It is stated that when the petitioner asked the CRL.M.C. 674 2021 accused not to argue with his mother the accused started abusing the complainant and started fighting with him. It is stated that the accused slapped the complainant and when people gathered there the accused threatened the complainant and went towards his house. It is alleged that about 11.30 12.30 the accused stabbed the complainant on the stomach. The records indicate that the complainant was taken to L.N Hospital. In the MLC the doctor has recorded the present case to be one of physical assault near home address at around 12.00 PM on 26.03.2020 stab injury in the abdomen. Charge sheet has been filed against the complainant. The charge sheet states that the complainant has suffered grievous injuries. The accused petitioner has been released on bail on 27.04.2020. This petition has been filed on the ground that after the intervention of the parents and the well wishers the parties have stated to settle their disputes. A settlement deed dated 26.10.2020 has been It is well settled that the High Court has the power to quash FIR complaint on the basis of a compromise arrived at between the parties while exercising its jurisdiction under Section 482 Cr.P.C. The Supreme Court in Gian Singh v. State of Punjab reported as 10 SCC 303 observed 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 CRL.M.C. 674 2021 exercised in accord with the guideline engrafted in such power viz.: i) to secure the ends of justice or ii) to prevent abuse of the process of any court. In what cases power to quash the criminal proceeding or complaint or FIR may be exercised where the offender and the victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However before exercise of such power the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder rape dacoity etc. cannot be fittingly quashed even though the victim or victim s family and the offender have settled the dispute. Such offences are not private in nature and have a serious impact on society. Similarly any compromise between the victim and the offender in relation to the offences under special statutes like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc. cannot provide for any basis for quashing criminal proceedings overwhelmingly and predominatingly civil flavour stand on a different footing for the purposes of quashing particularly the offences arising from commercial financial mercantile civil partnership or such like transactions or the offences arising out of matrimony relating to dowry etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases the High Court may quash the criminal proceedings if in its view because of the compromise between the offender and the victim the possibility of conviction is remote and bleak and continuation of the criminal case would CRL.M.C. 674 2021 put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and the wrongdoer and whether to secure the ends of justice it is appropriate that the criminal case is put to an end and if the answer to the above question(s) is in the affirmative the High Court shall be well within its jurisdiction to quash the criminal proceeding.” The present case is for quashing the criminal proceedings for offences under Section 307 IPC. There was a conflict in various proceedings 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. It has been 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 in State of Rajasthan v. Shambhu Kewat 2014) 4 SCC 149 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 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 CRL.M.C. 674 2021 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 persons 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 offence like the present will leave a wrong impression about the criminal justice system and will encourage further criminal acts which will endanger the peaceful co existence and welfare emphasis supplied) 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: “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 the offence 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 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 to why CRL.M.C. 674 2021 large.” to be treated alike the Constitution of India. Stare decisis 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 identical 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 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 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. 24. The two rival parties have amicably settled the disputes between themselves and buried the hatchet. the parties and quash CRL.M.C. 674 2021 this they say that since Not only 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 emphasis supplied) A larger Bench of Supreme Court in State of M.P. v. Laxmi Narayan 2019) 5 SCC 688 resolved the conflict by observing as under: in Narinder this Court “14. Now so far as the conflict between the decisions Singh6 SCC 466 :3 Cri) 54] and Shambhu Kewat4 SCC 149 : 2014) 4 SCC 781] is concerned in Shambhu Kewat4 SCC 149 :4 SCC781] this Court has the power of the difference between CRL.M.C. 674 2021 above.” the power of a criminal court compounding of offences conferred on a court under Section 320 CrPC and the powers conferred under Section 482 CrPC for quashing of criminal proceedings by the High Court. In the said decision this Court further observed that in compounding the offences circumscribed by the provisions contained in Section 320 CrPC and the court is guided solely and squarely thereby while on the other hand the formation of opinion by the High Court for quashing criminal proceedings or criminal complaint under Section 482 CrPC is guided by the material on record as to whether ends of justice would justify such exercise of power although ultimate consequence may be acquittal or dismissal of indictment. However in the subsequent decision in Narinder Singh6 SCC 466 :3 SCC 54] the very Bench ultimately concluded in para 29 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 CRL.M.C. 674 2021 to be themselves. However this power exercised sparingly and with caution. 29.2. When settlement and on that basis petition for quashing the criminal proceedings is filed the guiding factor in such cases would be to secure: the parties have reached i) ends of justice or ii) to prevent abuse of the process of any While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives. 29.3. Such a power is not to 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 the 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 29.4. On the other hand those criminal cases having overwhelmingly and predominantly civil character particularly those arising out of 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 CRL.M.C. 674 2021 conviction is remote and bleak and continuation of criminal cases would put the accused to 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 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 the body nature of vital delicate parts 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 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 settlement and quash CRL.M.C. 674 2021 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 is arrived at the settlement immediately after the alleged commission of offence and the matter is still under investigation the High Court may be liberal in accepting the 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 circumstances material mentioned above. On the other hand where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument normally the High Court should refrain from exercising its power under Section 482 of the Code as in such cases the trial court would be in a position to decide the case finally on merits and to come to a conclusion as to whether the offence under Section 307 IPC is committed or not. Similarly in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime facie assessment of CRL.M.C. 674 2021 and therefore there is no question of sparing a convict found guilty of such a crime.” 15. Considering the law on the point and the other decisions of this Court on the point referred to hereinabove it is observed and held as under: 15.1. That the power conferred under Section 482 of the Code to quash the criminal proceedings for the non compoundable offences under Section 320 of the Code can be exercised having overwhelmingly and predominantly the civil character particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes and when the parties have resolved the entire dispute amongst themselves 15.2. Such power is not to be exercised in those prosecutions which involved 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 15.3. Similarly such power is not to be exercised for the offences under the special statutes like the the offences Prevention of Corruption Act or 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 15.4. Offences under Section 307 IPC and the Arms Act etc. would fall in the category of heinous and serious offences and therefore are to be treated as crime against the society and not against the individual alone and 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 therefore CRL.M.C. 674 2021 of powers under Section 482 of the Code on the ground that the parties have resolved their entire dispute amongst themselves. However the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence which if proved would lead to framing the charge under Section 307 IPC. For this purpose it would be open to the High Court to go by the nature of injury sustained whether such injury is inflicted on the vital 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 under investigation. Therefore the ultimate conclusion in paras 29.6 and 29.7 of the decision of this Court in Narinder Singh 6 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 CRL.M.C. 674 2021 and why he was absconding how he had managed with the complainant to enter into a compromise etc.” The petitioner is a youngster of 21 years having entire life ahead of him. The parties are living in the same area. There are no criminal antecedents against the petitioner. He has not absconded. The charge sheet has been filed. A perusal of the charge sheet would show that during interrogation the accused has stated that when he was arguing with his mother the complainant slapped him he felt insulted and therefore in anger he took a knife from a vegetable vendor and stabbed the complainant. The accused has already spent about a month in custody. The accused has expressed regret in the Court. The complainant who is present in the court also states that the life of the youngster would get spoiled if proceedings Keeping in mind the fact that the accused is a 21 year old youngster having entire life ahead of him and the fact that the parties have entered into a settlement this Court is inclined to exercise its jurisdiction under Section 482 Cr.P.C to quash the FIR on the ground that the parties have entered into a compromise. The petitioner who is appearing in person along with his counsel is warned not to indulge in such activities and repeat the offence in The youngster must learn to control his anger and keep in mind that he cannot take law in his hands. The petitioner is directed to do one month community service at Gurdwara Bangla Sahib from 16.03.2021 to 16.04.2021. 10. This Court is also inclined to impose cost of Rs.1 00 000 on the petitioner. The amount shall be paid to the following institutions: a) Sum of Rs.25 000 in the ‘DHCBA Lawyers Social Security and Welfare Fund’. b) Sum of Rs.25 000 in the ‘Nirmal Chhaya Foundation’. c) Sum of Rs.25 000 in the ‘Delhi Police Welfare Fund’. d) Sum of Rs.25 000 in 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. After completion of one month a certificate from Gurdwara Bangla Sahib be also filed to show compliance of the order. In case of any absenteeism default on the part of the petitioner the same shall be conveyed immediately by Gurdwara Bangla Sahib 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 11. With the above directions the petition is disposed of along with the orders passed today. pending applications if any. 12. A copy of this order be transmitted to Gurudwara Bangla Sahib. SUBRAMONIUM PRASAD J. MARCH 12 2021 CRL.M.C. 674 2021

Due to lack of reliable evidence on the appellant’s identity, the conviction shall be deemed to be not sustainable in law: High Court Of Patna

The petitioner was held liable in a case and was sentenced to 7 years of imprisonment along with fines and other imposition of punishments. The Petitioner however established the grounds for granting bail on the basis of the conviction being not sustainable under law. Hon’ble High Court of Patna before Justice Mr. Birendra Kumar in the matter Vakil Paswan v. The State of Bihar[Criminal Appeal (SJ) No.3154 of 2019].  The facts of the case were that the learned Trial Judge viewed the litigant to be entirely blameworthy for offenses under Sections 376/511, 354, and 354(B) of the Indian Penal Code by the criticized judgment. The learned Trial Judge granted thorough detainment for a considerable length of time and a fine of rupees 5,000 for an offense under Sections 376/511 of the Indian Penal Code and in default of installment of fine thorough detainment of one year was granted for an offense under Section 354 of the Indian Penal Code and in default of installment of fine, there is heading of one-month thorough detainment. For an offense under Section 354(B) of the Indian Penal Code, thorough detainment of five years was granted other than a fine of rupees 2,000 and in default of installment of fine, the litigant was coordinated to go through additional four months thorough detainment. The sentences have been requested to run simultaneously by the condemned request. Learned direction for the appealing party battles that there is the absence of dependable proof on the personality of the litigant to be engaged with the event. Subsequently, the judgment of conviction isn’t economical in law. a trade-off in such cases ought not to be supported nor the trade-off ought to be made the premise of absolution or decrease of the sentence. Nonetheless, the Court can’t close its eyes to the enthusiasm for proof accessible on the record disregarding the factum of giving and take. The prosecutrix doesn’t say that the other three observers P.W. 1 Laxman Paswan, P.W. 2 Saroj Paswan, or P.W. 3 Ramesh Paswan had gone to her home on her caution. In this way, the declaration of P.Ws. 1, 2, and 3 that they found out about the event from the prosecutrix has no evidentiary worth. The learned Trial Judge has not doled out any relevant justification for distrusting the assertion of the prosecutrix that because of haziness, she was unable to distinguish the denounced. P.W. 3 has conceded that he came to at the spot of event following ten minutes of the event. The previously mentioned proclamation of P.W. 3 adulterates his case to have seen the litigant escaping from the place of the prosecutrix. Accordingly, aside from the factum of giving and take, fairly even in the wake of disregarding compromise, the arraignment proof doesn’t rouse certainty in regards to the association between the offenses affirmed and the inclusion of the appealing party. Consequently, the litigant merits the advantage of uncertainty. As per the prosecutrix, other relatives were there in one more space at the hour of the event, however, they were not inspected as arraignment proof. The Hon’ble High Court of Patna held,” The learned Judge has not considered the aforesaid infirmities in the prosecution case. Hence, the impugned judgment and sentence is fit to be set aside. Accordingly, this appeal is allowed.”

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEALNo.31519 Arising Out of PS. Case No. 31 Year 2014 Thana CHENARI District Rohtas Vakil Paswan Son of Shankar Paswan Resident of Village Karma Police Station Chenari District Rohtas at Sasaram THE STATE OF BIHAR ... Appellant s ... Respondent s For the Appellant s Mr. Vikram Deo Singh Advocate Mr. Shankar Kumar Advocate Mr. Sada Nand Roy Advocate Mr. Syed Ashfaque Ahmad Advocate For the Respondent s CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR Date : 26 03 2021 This appeal is against the judgment of conviction The sole appellant Vakil Paswan faced trial before the learned Additional Sessions Judge V Rohtas at Sasaram in connection with Sessions Trial No. 8714 arising out of Chenari P.S. Case No. 314 registered under Sections 376 511 of the Indian Penal Code. The learned Trial Judge found the appellant guilty for offences under Sections 376 511 354 and 354(B) of the Indian Penal Code by the impugned judgment dated 27.06.2019. The learned Trial Judge awarded rigorous imprisonment for seven years and a fine of rupees five thousand for offence under Sections 376 511 of the Indian Penal Code and in default of payment of fine rigorous imprisonment of one year was ordered. Likewise three years rigorous imprisonment and a fine of rupees one thousand was Patna High Court CR. APPNo.31519 dt.26 03 2021 awarded for offence under Section 354 of the Indian Penal Code and in default of payment of fine there is direction of one month rigorous imprisonment. For offence under Section 354(B) of the Indian Penal Code rigorous imprisonment of five years was awarded besides fine of rupees two thousand and in default of payment of fine the appellant was directed to undergo further four months rigorous imprisonment. The sentences have been ordered to run concurrently by the impugned order dated 29.06.2010. 2. The prosecution case as disclosed in the written report of the prosecutrixis that on 03.03.2014 at about 11:00 p.m. the prosecutrix was sleeping inside her house after closing the doors. The appellant jumped over the boundary wall and entered into the room of the informant along with a gun. The appellant sat on the body of the informant and caught her breast started to disrobe her but the victim made alarm and the neighbours Laxman PaswanSaroj Paswan came then only she could save herself. She stated that husband and brother of the husband were out side the village to earn their livelihood. Hence no male was there in the house. The written report is Ext. 1 3. After completion of investigation the police Patna High Court CR. APPNo.31519 dt.26 03 2021 submitted charge sheet and accordingly the appellant was put on trial. During course of trial the prosecution examined altogether four witnesses. Besides the aforesaid two witnesses P.W.3 is Ramesh Paswan and P.W. 4 the prosecutrix herself 4. Learned counsel for the appellant contends that there is lack of reliable evidence on the identity of the appellant to be involved in the occurrence. Hence the judgment of conviction is not sustainable in law According to learned counsel other witnesses are hearsay witnesses not corroborated by the prosecutrix Hence their testimony has got no evidentiary value 5. On the other hand learned counsel for the State respondent contents that in fact the parties entered into a compromise and due to compromise the complainant changed her statement in the cross examination. The learned Trial Judge has taken note of the Supreme Court judgment that in such a serious case compromise should not be encouraged Hence conviction of the appellant for the offences proved does not require any interference 6. According to the prosecutrix the occurrence took place about one and half years ago. It was night at about Patna High Court CR. APPNo.31519 dt.26 03 2021 11:00 p.m. The prosecutrix was sleeping in her house. The appellant entered into her room and put his hand on her breast and started disrobing her. The appellant threatened to kill her However the prosecutrix raised alarm then the villagers came and the appellant fled away. She further stated that there are three rooms in her house. The family members were in other rooms and the children were sleeping along with her. In the cross examination she deposed that it was a dark night hence she could not identify who had entered into the room. She further deposed that the appellant had also lodged a case against her husband and the parties have entered into a compromise voluntarily in both the cases. Hence the prosecutrix does not want to proceed with this case 7. No doubt a compromise in such cases should not be encouraged nor the compromise should be made basis of acquittal or reduction of sentence. However the Court cannot shut its eyes to the appreciation of evidence available on the record ignoring the factum of compromise. The prosecutrix does not say that other three witnesses P.W. 1 Laxman Paswan P.W. 2 Saroj Paswan or P.W. 3 Ramesh Paswan had come to her house on her alarm. Therefore testimony of P.Ws. 1 2 and 3 that they heard about the Patna High Court CR. APPNo.31519 dt.26 03 2021 occurrence from the prosecutrix has no evidentiary value Likewise P.Ws. 1 and 2 deposed that they had seen the appellant coming out of the house of the prosecutrix. Only on that evidence the conviction of the appellant under Sections 376 511 354 and 354(B) of the Indian Penal Code cannot be sustained unless the prosecutrix asserts that the appellant was identified as perpetrator of the crime. The evaluation of the testimony of the prosecutrix or other witnesses could be made only after perusal of her entire testimony and not only a part The evidence coming in cross examination cannot be overlooked. If the prosecutrix says that she could not identify in the darkness of night as to who had entered into her house the accused would be justified to rely on this statement The learned Trial Judge has noticed the aforesaid evidence of the prosecutrix and recorded that “she deposed that due to darkness she could not identify the accused but she never denied the incident. The prosecution case is further supported by the fact that the accused had tried to put pressure on the prosecutrix to compromise only because he was guilty”. The second part of the finding above is error of record. There is no evidence that the prosecutrix entered into a compromise under pressure rather the evidence Patna High Court CR. APPNo.31519 dt.26 03 2021 shows that she has voluntarily compromised the case and counter case both 9. The learned Trial Judge has not assigned any cogent reason for disbelieving the statement of the prosecutrix that due to darkness she could not identify the accused. P.W. 3 has admitted that he reached at the place of occurrence after ten minutes of the occurrence. The aforesaid statement of P.W 3 falsifies his claim to have seen the appellant fleeing from the house of the prosecutrix. Thus apart from the factum of compromise rather even after ignoring compromise the prosecution evidence does not inspire confidence regarding connection between the offences alleged and the involvement of the appellant. Hence the appellant deserves benefit of doubt. According to the prosecutrix other family members were there in another room at the time of the occurrence but they were not examined as prosecution evidence. 10. Appellant is in custody since 27.06.2019 i.e the date of conviction and it has been informed by the learned counsel for the appellant that appellant was in custody for six months as under trial prisoner as well 11. The learned Judge has not considered the aforesaid infirmities in the prosecution case. Hence the Patna High Court CR. APPNo.31519 dt.26 03 2021 impugned judgment and sentence is fit to be set aside Accordingly this appeal is allowed. 12. Let the appellant be set free at once. Birendra Kumar J

In exercise of jurisdiction under Section 482, enquiry whether the evidence in question is reliable or not is the function of the Trail Judge : Jammu and Kashmir High Court

The powers possessed by the High Court under Section 482 Cr.P.C. are very wide and at the same time the power requires great caution in its exercise. The inherent power should not be exercised to stifle a legitimate prosecution. This was held in the judgment passed by a single judge bench comprising of HON’BLE MR JUSTICE VINOD CHATTERJI KOUL, in the matter Nayeem Akhtar Andrabi V. The Public Prosecutor and another [CRMC no.27/2011], dealt with an issue where the petitioner filed a petition seeking the quashment of the complaint and the proceedings initiated thereon by the Trial Court thereof on the edifice of case set up and grounds taken in petition on hand. A Press Conference was held by petitioner and respondent no.2, at the office of J&K Peoples Democratic Party, which was attended by several other members of the Party, including legislators of the State Legislature as well as members of public and media persons. It is alleged that during aforesaid Press Conference, both petitioner and respondent no.2 have levelled false and defamatory allegations against Mr Omar Abdullah, in presence of journalists and reporters from print and electronic media, and several other persons. The complainant/respondent no.1 has also averred that all such allegations were not only defamatory but were made with an intention to defame Mr Omar Abdullah. The details of defamatory allegations levelled against Mr Omar Abdullah have been enumerated by complainant/respondent no.1 in the complaint. A number of contentious and triable facts and issues have been made in the complaint. Counsel appearing for petitioner that the complaint filed by respondent no.1, has led to serious abuse of process of court as allegations contained therein or evidence placed on record in support thereof, even if taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against petitioner and that whatever petitioner averred, was asserted in good faith which squarely falls under Eighth Exception of Section 499. Petitioner is alleged to have made defamatory allegations qua withdrawal of secret funds by the Chief Minister and in this regard respondent no.1/complainant has extensively relied upon and quoted the news item carried by Daily Newspaper Greater Kashmir in its Issue. According to learned senior counsel, the said news item does not at all mention or disclose that any of the statements referred to as defamatory statements were made by petitioner and it is only a person, making or publishing a defamatory statement, who can be brought under Section 499 RPC and there is no evidence placed on record by respondent no.1 to indicate or establish that petitioner has made any defamatory imputations. After hearing both sides, the Hon’ble High Court of Jammu and Kashmir dismissed the petition and held that the petitioner has failed to make out a case for exercise of inherent powers under Section 561-A Cr. P.C. (Section 482 of the Central Cr.P.C.) to quash the complaint or for that matter the proceedings initiated thereon by the Trial Court. Click here to view judgement Judgement reviewed by – Vaishnavi Raman

HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR CRMC no.27 2011 Reserved on: 08.06.2020 Pronounced on: 15.06.2020 Through: Mr Jahangir Iqbal Ganai Senior Advocate with Ms Humaira Shafi Advocate Through: Mr B. A. Dar Sr. AAG Nayeem Akhtar Andrabi The Public Prosecutor and another CORAM: HON’BLE MR JUSTICE VINOD CHATTERJI KOUL JUDGE 1. A complaint under Section 499 and 500 of the Ranbir Penal Code 1932 AD of erstwhile State of J&Kwas filed by Public Prosecutor Srinagar respondent no.1 herein against petitioner no.1 and respondent no.2 before the court of Principal District and Sessions Judge Srinagar on the grounds detailed therein. The Trial Court while taking into account the allegations made in the complaint and the record concomitant therewith took cognizance of the complaint and issued process vide order dated 29th September 2010 and bailable warrant in the amount of Rs.20 000 each was issued for securing presence of the accused. 2 CRMC no.27 2011 2. Petitioner feeling aggrieved of aforesaid complaint and proceedings initiated thereon by the Trial Court seeks quashment thereof on the edifice of case set up and grounds taken in petition on hand. 3. I have heard Mr Jahangir Iqbal Ganai learned senior counsel appearing on behalf of petitioner and Mr B. A. Dar learned Sr.AAG appearing for respondent no.1. I have gone through the record on the file. 4. As is discernible from the file a complaint has been moved by respondent no.1 before the Trial Court under Section 499 500 RPC IPC. While giving introduction of Mr Omar Abdullah the then Chief Minister of erstwhile State of Jammu and Kashmir it is stated in the complaint that on 25th August 2010 a Press Conference was held by petitioner and respondent no.2 at the office of J&K Peoples Democratic Party No.2 Circuit House Emporium Lane Residency Road Srinagar which was attended by several other members of the Party including legislators of the State Legislature as well as members of public and media persons. It is alleged that during aforesaid Press Conference both petitioner and respondent no.2 have levelled false and defamatory allegations against Mr Omar Abdullah in presence of journalists and reporters from print and electronic media and several other persons. The complainant respondent no.1 has also averred that all such allegations were not only defamatory but were made with an intention to defame Mr Omar Abdullah. The details of defamatory allegations levelled against Mr Omar Abdullah have been enumerated by complainant respondent no.1 in the complaint. A number of 3 CRMC no.27 2011 contentious and triable facts and issues have been made in the 5. While ingeminating averments of the petition it is the submission of learned senior counsel appearing for petitioner that the complaint filed by respondent no.1 has led to serious abuse of process of court as allegations contained therein or evidence placed on record in support thereof even if taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against petitioner and that whatever petitioner averred was asserted in good faith which squarely falls under Eighth Exception of Section 499. Petitioner is alleged to have committed an offence under Section 499 and 500 RPC by making defamatory allegations of kickbacks in the award of Rattle Power Project by the then Chief Minister. Petitioner is also alleged to have made a defamatory allegation regarding exorbitant expenditure incurred on the construction of official residence of the Chief Minister and is also alleged to have made a defamatory allegation against the Chief Minister regarding pilferage of certain priceless antiques from the State Toshakhana. Petitioner is alleged to have made defamatory allegations qua withdrawal of secret funds by the Chief Minister and this regard respondent no.1 complainant has extensively relied upon and quoted the news item carried by Daily Newspaper Greater Kashmir in its Issue dated 26th August 2010. According to learned senior counsel the said news item does not at all mention or disclose that any of the statements referred to as defamatory statements were made by petitioner and it is only a person making or 4 CRMC no.27 2011 publishing a defamatory statement who can be brought under Section 499 RPC and there is no evidence placed on record by respondent no.1 to indicate or establish that petitioner has made any defamatory imputations. In absence of any evidence worth the name available on record respondent no.1 has abused the process of law by instituting the complaint and as a consequence whereof the proceedings pending before the Trial Court are liable to be quashed. He has further contended that criminal proceedings launched on complaint of respondent no.1 are attended with mala fide as the complaint has been filed maliciously for ulterior motives for wreaking vengeance on petitioner. The newspaper constituting foundation of complaint does not at all indicate by any stretch of imagination that petitioner has made any statement to be construed as defamatory by respondent no.1. He lastly states that instant petition may be allowed and complaint and the proceedings initiated thereon quashed. 6. Per contra learned Sr. AAG has stated that complainant has made out a triable case and at this juncture veracity of evidence cannot be gone into. It is his further contention that making of defamatory allegations imputations in a press conference in which legislators print and media persons were present and its subsequent publication shows manifestly an effort to bring down the reputation of Mr Omar Abdullah. He has also insisted that whether the petitioner was having any intention of defaming or not is a matter which has to be gone into at the time of trial. The publication of press conference of petitioner and respondent no.2 in newspaper reflects and portrays defamation and under such 5 CRMC no.27 2011 circumstances petitioner cannot contend that there is no material to bring home the guilt of the accused. It is his further submission that to prove good faith for protection of interest of a person making it it is he who makes or contends good faith has to prove and this is a premature stage to consider the material placed by complainant. He has also stated that accused no.1 Shri Nizam ud din Bhat against whom process has also been issued has not challenged the order nor has he joined petitioner herein. On these grounds he has prayed to dismiss the petition. 7. First and foremost in the present case there is no denial to the fact of publication of news item in a number of newspapers of Jammu and Kashmir containing certain imputations and it is in view of the said publication that complainant respondent no.1 has filed a complaint under Section 499 and 500 RPC before the Trial Court. It is however contention of petitioner that he has not committed any offence as contemplated under Section 499 and 500 RPC IPC. 8. Section 499 RPC provides that whoever by words either spoken or intended to be read or by signs or by visible representations makes or publishes any imputation concerning any person intending to harm or knowing or having reason to believe that such imputation will harm the reputation of such person is said to defame that person. It would be advantageous for facility of reference to reproduce Section 499 infra: “Section 499.—Whoever by words either spoken or intended to be read or by signs or by visible representations makes or publishes any imputation concerning any person intending to harm or knowing or having reason to believe that such imputation will harm the reputation of such person is said except in the cases hereinafter excepted to defame that person. 6 CRMC no.27 2011 Explanation 1.—It may amount to defamation to impute anything to a deceased person if the imputation would harm the reputation of that person if living and is intended to be hurtful to the feelings of his family or other near relatives. Explanation 2.—It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. Explanation 3.—An imputation in the form of an alternative or expressed ironically may amount to defamation. Explanation 4.—No imputation is said to harm a person s reputation unless that imputation directly or indirectly in the estimation of others lowers the moral or intellectual character of that person or lowers the character of that person in respect of his caste or of his calling or lowers the credit of that person or causes it to be believed that the body of that person is in a loathsome state or in a state generally considered as A says— "Z is an honest man he never stole B s watch" intending to cause it to be believed that Z did steal B s watch. This is defamation unless it fall within one of the exceptions. A is asked who stole B s watch. A points to Z intending to cause it to be believed that Z stole B s watch. This is defamation unless it fall within one of the exceptions. A draws a picture of Z running away with B s watch intending it to be believed that Z stole B s watch. This is defamation unless it fall within one of the exceptions. d) A draws a picture of Z running away with B s watch intending it to be believed that Z stole B s watch. This is defamation unless it fall within one of the exceptions. First Exception.—Imputation of truth which public good requires to be made or published.—It is not defamation to impute anything which is true concerning any person if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact. Second Exception.—Public conduct of public servants.—It is not defamation to express in good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions or respecting his character so far as his character appears in that conduct and no further. Third Exception.—Conduct of any person touching any public question.—It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question and respecting his character so far as his character appears in that conduct and no further. Fourth Exception.—Publication of reports of proceedings of courts.—It is not defamation to publish substantially true report of the proceedings of a Court of Justice or of the result of any such proceedings. Explanation.—A Justice of the Peace or other officer holding an enquiry in open Court preliminary to a trial in a Court of Justice is a Court within the meaning of the above section. Fifth Exception.—Merits of case decided in Court or conduct of witnesses and others concerned.—It is not defamation to express in good faith any opinion whatever respecting the merits of any case civil or criminal which has been decided by a Court of Justice or respecting the conduct of any person as a party witness or agent in any such case or respecting the character of such person as far as his character appears in that conduct and no further. 7 CRMC no.27 2011 Sixth Exception.—Merits of public performance.—It is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public or respecting the character of the author so far as his character appears in such performance and no further. Explanation.—A performance may be submitted to the judgment of the public expressly or by acts on the part of the author which imply such submission to the judgment of the public. Seventh Exception.—Censure passed in good faith by person having lawful authority over another.—It is not defamation in a person having over another any authority either conferred by law or arising out of a lawful contract made with that other to pass in good faith any censure on the conduct of that other in matters to which such lawful authority Eighth Exception.—Accusation preferred in good faith to authorised person.—It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject matter of accusation. Ninth Exception.—Imputation made in good faith by person for protection of his or other s interests.—It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it or of any other person or for the public good. Tenth Exception.—Caution intended for good of person to whom conveyed or for public good.—It is not defamation to convey a caution in good faith to one person against another provided that such caution be intended for the good of the person to whom it is conveyed or of some person in whom that person is interested or for the public good.” 9. It is pertinent to mention here that the allegations made against any person if found to be false it can affect his reputation. Reputation is a sort of right to enjoy the good opinion of others and it is a personal right and an enquiry to reputation is a personal injury. Thus defamation is injurious to reputation. Reputation has been defined in dictionary as “to have a good name the credit honor or character which is derived from a favourable public opinion or esteem and character by report”. Personal rights of a human being include the right of reputation. A good reputation is an element of personal security and is protected by the Constitution equally with the right to the enjoyment of life liberty and property. So it has been held to be an essential component vis à vis right to life of a citizen under Article 21 of the Constitution. 8 CRMC no.27 2011 International Covenant on Civil and Political Rights 1966 recognizes the right to have opinions and the right of freedom of expression under Article 19 is subject to the right of reputation of others. Reputation is “not only a salt of life but the purest treasure and the most precious perfume of life”. 2 SCC 398]. 10. In the above milieu it may be mentioned here that the scope of Section 482 Cr.P.C. is well defined and inherent powers could be exercised by the High Court to give effect to an order under the Code to prevent abuse of the process of court and to otherwise secure the ends of justice. This extraordinary power is to be exercised ex debito justitiae. However in exercise of such powers it is not permissible for the High Court to appreciate the evidence as it can only evaluate material documents on record to the extent of its prima facie satisfaction about existence of sufficient ground for proceedings against accused and the court cannot look into materials acceptability of which is essentially a matter for trial. 9 CRMC no.27 2011 11. Law does not prohibit entertaining a petition under Section 482 Cr.P.C. for quashing the charge sheet even before the charges are framed or before the application of discharge is filed or even during its pendency of such application before the court concerned. The High Court cannot reject an application merely on the ground that accused can argue legal and factual issues at the time of framing of the charge. However inherent power of the court should not be exercised to stifle the legitimate prosecution but can be exercised to save the accused to undergo the agony of a criminal trial.12 SCC 437). 12. The judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 Cr.P.C. if answer to all the steps as enumerated herein after is in affirmative has been so said by the Supreme Court in Rajiv Thapar v Madan Lal Kapoor 2013SCC 330: “Based on the factors canvassed in the foregoing paragraphs we would delineate the following steps to determine the veracity of a prayer for quashing raised by an accused by invoking the power vested in the High Court under Section 482 of the Code of Criminal Procedure: i. Step one whether the material relied upon by the accused is sound reasonable and indubitable i.e. the material is of sterling and impeccable quality 10 CRMC no.27 2011 ii. Step two whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false. iii. Step three whether the material relied upon by the accused has not been refuted by the prosecution complainant and or the material is such that it cannot be justifiably refuted by the prosecution complainant iv. Step four whether proceeding with the trial would result in an abuse of process of the court and would not serve the ends of justice " 13. The case in hand if analyzed on the hallmark of above steps as laid down by the Supreme Court does not at all persuade this Court to vouchsafe all that petitioner implores in petition hand. It is well settled law that Section 482 of the Code of Criminal Procedure empowers the High Court to exercise its inherent powers to prevent abuse of the process of Court. In proceedings instituted on complaint exercise of inherent power to quash proceedings is called for only in cases where complaint does not disclose any offence or is frivolous vexatious or oppressive. If allegations set out in complaint do not constitute offence of which cognizance is taken by the Magistrate it is open to the High Court to quash the same in exercise of inherent powers under Section 482. It is not however necessary that there should be a meticulous analysis of the case before the trial to find out whether the case would end in conviction or not. The complaint has to be read as a whole. If it appears on a consideration of the allegations in the light of the statement on oath of the complainant that ingredients of the offence offences are disclosed and there is no material to show that the 11 CRMC no.27 2011 complaint is mala fide frivolous or vexatious in that event there would be no justification for interference by the High Court. Reference in this regard may be made to Mrs. Dhanalakshmi v. R. Prasanna Kumar AIR 1990 SC 494. 14. It may be added here that the issue of mala fides looses its significance if there is a substance in the allegation made in complaint moved with malice. It is a well established proposition of law as has been held by the Supreme Court in Sheo Nandan Paswan v. State of Bihar and others AIR 1987 SC 877 that a criminal prosecution if otherwise justifiable and based upon adequate evidence does not become vitiated on account of mala fides or political vendetta of the first informant or complainant. Again in Parkash Singh Badal v. State of Punjab & Ors. AIR 2007 SC 1274 the Supreme Court has held that ultimate test is whether allegations have any substance and an investigation should not be shut out at the threshold because a political opponent or a person with political difference raises an allegation of commission of offence and therefore the plea of mala fides as raised cannot be maintained. 15. The Supreme Court in State of A.P. v. Goloconda Linga Swamy and another AIR 2004 SC 3967 as also in K. Karunakaran v. State of Kerala 1 SCC 59 has held that it is the material collected during investigation and evidence led in court which decides the fate of accused person. The allegations of mala fides against informant are of no consequence and cannot by themselves be the basis for quashing the 12 CRMC no.27 2011 16. Thus from the above it becomes evident that in case there is some substance in the allegations and material exists to substantiate the complicity of applicant the case is to be examined in its full conspectus and the proceedings should not be quashed only on the ground that the same had been initiated with mala fides to wreak vengeance or to achieve an ulterior goal. 17. The question as to what constitutes defamation came up before the Supreme Court in the case of Mohammed Abdulla Khan v. Prakash K AIR 2017 SC 5608. The Supreme Court has in clear terms said that whether the content of a complaint disclose the facts necessary to establish commission of offence of one or all of the offences mentioned in the complaint and whether there is sufficient evidence to establish guilt of accused person for any one of the offences is a matter that can be examined only after recording evidence at the time of trial and that can never be a subject matter of a proceeding under Section 482 Cr.P.C. While saying so the contours of jurisdiction of the High Court under Section 482 Cr.P.C. is no longer res integra. It is suffice to advert to the judgment of the Supreme Court in State of Haryana vs Ch. Bhajan Lal AIR 1992 SC 604. The Supreme Court held as follows: 102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice though it may not be possible to lay down any precise clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. 13 CRMC no.27 2011 1) Where the allegations made in the first information report or the complaint even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. 2) Where the allegations in the first information report and other materials if any accompanying the FIR do not disclose a cognizable offence justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. 3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non cognizable offence no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. 5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act Where a criminal proceeding is manifestly attended with mala fide and or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.” Emphasis supplied) 18. As to what is the scope of the expression “rarest of rare cases” as indicated in above quoted paragraph 103 I may only refer to the judgment of the Supreme Court in Jeffrey J. Diermeier and another v. State of West Bengal and another 6 SCC 242 in which the law laid down by a Bench of a Three Judges of the Supreme Court in the 14 CRMC no.27 2011 case of Som Mittal v. Govt. of Karnataka 3 SCC 574 has been referred to: “23. The purport of the expression "rarest of rare cases" to which reference was made by Shri Venugopal has been explained recently in Som Mittalv. Govt. of Karnataka3 SCC 574 :1 SCC910 :2 SCC1] . Speaking for a Bench of three Judges the Hon ble the Chief Justice said: 9. When the words rarest of rare cases are used after the words ‘sparingly and with circumspection while describing the scope of Section 482 those words merely emphasise and reiterate what is intended to be conveyed by the words sparingly and with circumspection’. They mean that the power under Section 482 to quash proceedings should not be used mechanically or routinely but with care and caution only when a clear case for quashing is made out and failure to interfere would lead to a miscarriage of justice. The expression rarest of rare cases is not used in the sense in which it is used with reference to punishment for offences under Section 302 IPC but to emphasise that the power under Section 482 CrPC to quash the FIR or criminal proceedings should be used sparingly and with circumspection.” 19. If aforesaid principles are applied to the present case the question that would emerge for consideration is as to whether petitioner has made out a case to bestow him the relief as beseeched for by him in exercise of inherent powers under Section 482 Cr.P.C. The answer thereto would be in ‘negative’. Insofar as the offence of defamation is concerned even though the offence under Section 500 is non cognizable under the First Schedule to the Cr.P.C. yet the matter would not be governed by and fall within the categories of cases catalogued in Bhajan Lal’s case supra). As a corollary thereof I do not think that it is a case where I could hold that the proceeding is manifestly attended with mala fide and or the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on petitioner with a view to spite him due to private and personal grudge. 15 CRMC no.27 2011 20. The inherent powers cannot naturally be invoked with respect to any matter covered by specific provisions of the Code of Criminal Procedure. It is only where the High Court is satisfied either that an order passed under the Code would be rendered ineffective or that the process of any court would be abused or that ends of justice would not be secured that the High Court can and must exercise its inherent powers under Section 482 of the Code. This power can be invoked only in an event when aggrieved party is being unnecessarily harassed. The power under Section 482 Cr.P.C. is not intended to scuttle justice at threshold but to secure justice. 21. Needless to say that when exercising jurisdiction under Section 482 of the Code the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on reasonable appreciation thereof accusation would not be sustained. That is the function of the trial Judge. The scope of exercise of power under Section 482 Cr.P.C. and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure ends of justice were set out in detail in the case of Bhajan Lal to quash the complaint or for that matter the proceedings initiated thereon by the Trial Court. Having said so petition on hand is dismissed. Interim direction if any shall stand vacated. 23. Trial Court record be sent down along with copy of this order. 24. Parties to appear before Trial Court on 20th July 2020. 25. Registry to transmit copy of this order to learned counsel so that they inform their parties to appear before the Trial Court. Judge Ajaz Ahmad PS Whether the order is reportable: Yes

Conditions that can lead to a presumption of abetment of suicide by a married woman under Section 113A of the Evidence Act: Supreme Court

In the matter of Gumansinh @ Lalo @ Raju Bhikhabhai Chauhan Vs. State Of Gujrat  LL 2021 SC 415 the Supreme Court augmented that three circumstances must be met in order for Section 113-A of the Evidence Act to be applicable: The bench stated that if all three elements are met, a presumption can be drawn against the accused, and if he is unable to rebut the presumption with proof, he can be convicted. The prosecution’s case against the accused was that his wife committed suicide at her matrimonial home by ingesting poison because she couldn’t stand the constant emotional and physical abuse she was receiving from him and his relatives. This all transpired in a matter of eight months. The accused was found guilty under Indian Penal Code Sections 498A (Cruelty) and 306 (Abettement to Suicide) by the Trial Court. The conviction was upheld by the High Court of the United Kingdom. The accused argued before the Supreme Court that all of the witnesses are relatives and interested witnesses and that the prosecution examined no independent witness to substantiate the case, making the prosecution case suspect. In this regard, the bench of Justices S. Abdul Nazeer and Krishna Murari remarked that the close relatives’/interested witness’s evidential value is not likely to be dismissed on the basis of being a deceased relative. The Court stated, “Most often the offence of subjecting the married woman to cruelty is committed within the boundaries of the house which in itself diminishes the chances of availability of any independent witness and even if an independent witness is available whether he or she would be willing to be a witness in the case is also a big question because normally no independent or unconnected person would prefer to become a witness for a number of reasons. There is nothing unnatural for a victim of domestic cruelty to share her trauma with her parents, brothers and sisters and other such close relatives. The evidentiary value of the close relatives/interested witness is not liable to be rejected on the ground of being a relative of the deceased. Law does not disqualify the relatives from being produced as a witness though they may be an interested witness.” The bench stated that the Court must value the testimony of an interested witness and must use extreme caution when considering their testimony. Any interested witness must be examined with extreme care and caution. The Court held the opinion that, “The Court is required to address itself whether there are any infirmities in the evidence of such a witness; whether the evidence is reliable, trust-worthy and inspires the confidence of the Court. Another important aspect of being considered while analyzing the evidence of interested witness is whether the genesis of the crime unfolded by such evidence is probable or not. If the evidence of any interested witness/relative on a careful scrutiny by the Court is found to be consistent and trust-worthy, free from infirmities or any embellishment that inspires the confidence of the Court, there is no reason not to place reliance on the same.” The Court used Section 4 of the Evidence Act’s meaning of “shall presume” and held,  “The above definition of the words ‘may presume’ makes it clear that whenever the act provides that the Court may presume a fact, the said fact is to be regarded as proved, unless and until it is disproved.”

IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS. 940 941 OF 2021 ARISING OUT OF SPECIAL LEAVE PETITIONNOS. 2860 2861 OF 2019 GUMANSINH @ LALO @ RAJU BHIKHABHAI CHAUHAN & ANR THE STATE OF GUJARAT VERSUS JUDGMENT KRISHNA MURARI J These appeals arise out of final order and judgment of the Hon’ble High Court of Gujarat at Ahmedabaddated 28.12.2018 corrected vide order dated 08.02.2019 in R Criminal Appeal No 8300 and final order and judgment dated 07.03.2019 in Criminal Misc Application No. 1 of 2019 filed by the appellants challenging the order of conviction against them. LL 2021 SC 415 By the said judgment the High Court has dismissed the appeal filed by the appellant herein challenging the judgment dated 27.07.2000 passed by the Learned Sessions Judge Vadodara in Sessions Case No. 998 convicting the appellant in respect of the offence punishable under Section 306 498A read with Section 114 of the Indian Penal Codeis In brief the prosecution case is that the marriage of Appellant No. 1 was solemnized with Tahera on 27.04.1997 and after the marriage the deceased was residing with both the appellants. The Appellant No.1 was constantly asking the deceased to bring Rs.25 000 from her fatherin order to purchase buffaloes as he was keen on doing milk business. Due to poor financial condition PW 1 was not able to satisfy the demand of Appellant No. 1. Therefore Appellant No.1 frequently started beating the deceased while Appellant No. 2 who was her mother in law used to pick up quarrel with her on the pretext that she neither knew how to cook nor do any house hold work properly. The deceased committed suicide on 14.12.1997 between 17:00 and 17:30 hours by consuming poison at her matrimonial home for the sole reason that she was unable to bear the continuous mental and physical cruelty meted out to her by the appellants in a short span of 8 months LL 2021 SC 415 The PW 1 father of the deceased filed a complaint with Padra Police Station which was registered as ICR No. 397 for the offences punishable under Section 498A and 306 read with Section 114 of the IPC. After completion of the investigation charge sheet was filed in the Court of Learned Judicial Magistrate First Class Padra who committed the case to the Court of Sessions The case was registered as Sessions Case No. 998 and was made over to the Learned Additional Sessions Judge for trial. Charges were framed and against the appellants and they pleaded not guilty and claimed to be tried. In order to substantiate the case the prosecution has examined seven witnesses and all the incriminating evidence was put to the appellants while recording their statement under Section 313 of Code of Criminal Procedure Code wherein they totally denied the case of the prosecution. The Trial Court came to the conclusion that the Appellants subjected the deceased to physical and mental cruelty which lead her to commit suicide and convicted the appellants for offences punishable under Section 498A and 306 of IPC and sentenced them to undergo Rigorous imprisonment for a period of one year and pay fine of Rs. 500 as well as two years Rigorous imprisonment and pay fine of Rs. 500 LL 2021 SC 415 Aggrieved by the same the accused appellants filed an appeal before the High Court and mainly contended that there was no demand of money by Appellant No. 1 as he was only asking for loan to purchase buffaloes in order to start milk business. It was further contended that the deceased was under medical treatment as she was suffering from some mental illness. It was pointed out that only relatives were examined as witnesses though independent witnesses were available and therefore the prosecution case becomes doubtful It was further contended that the appellants were not present in the house when the deceased committed and prayed for the appeal to be allowed and the conviction of the appellants be set aside. However the High Court observed that the evidence produced by the prosecution clearly indicates the deceased was subjected to mental and physical cruelty by the appellants on the account of non fulfillment of demand of Rs.25 000 and therefore the judgment and order of conviction passed by the learned Trial Court was confirmed 10. Being aggrieved by the conviction and sentence under Section 498 A IPC and Section 306 IPC the accused have preferred these appeals. Ms. Akriti Chaubey learned Counsel for the appellants vehemently submitted that the conviction as recorded by the learned Trial Court and confirmed by the High Court is not tenable. It is submitted that the evidence of the material witnesses LL 2021 SC 415 suffer from major contradictions and there was no demand of any money by the appellant No.1 because he was only asking for loan to purchase buffaloes with an intention to start milk business. She further submitted that the deceased was suffering from some mental illness for which she was under medical treatment Her further submission is that only close relatives were examined as witnesses and there was no independent witness Per contra Ms. Deepanwita Priyanaka learned counsel appearing on behalf of the State submitted that there is a concurrent finding of both the Courts below as such no interference is warranted. It is further submitted that all the ingredients necessary for conviction under Section 306 IPC stands proved with the aid of Section 113 A of the Evidence Act 1872 as such the present appeals deserved to be dismissed We have considered the rival submissions and also perused the impugned judgment as also the testimony of the witnesses with the aid of learned counsel for the parties It is undisputed that the suicidal death of the deceased occurred within a short span of eight months of marriage. Section 113 A of the Evidence Act provides for presumption as to abetment of suicide by a married woman within LL 2021 SC 415 seven years of marriage by her husband or any of his relative. The said section reads as under : “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 willful 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.” LL 2021 SC 415 The prosecution case was that the marriage of the deceased who was the daughter of the complainant was solemnized with appellant no. 1 around eight months before the alleged incident and thereafter she was residing in her matrimonial home along with her husband the appellant no.1 and mother in law the appellant no. 2. For about two months they had a peaceful life thereafter the appellant no. 1 started pressing deceased to bring Rs.25 000 from her father to purchase buffaloes as he was interested in starting business of milk. It was further stated that the complainant PW 1 was unable to satisfy the demand on account of his weak financial condition. When the demand of Rs.25 000 could not be met by the complainant the appellant no.1 started beating the deceased and appellant no. 2 the mother in law also used to quarrel with her on the pretext that she was not knowing cooking and was not doing household work properly. On account of physical and mental cruelty meted out to her during a short span of eight months of marriage when it became unbearable she committed suicide on 14.12.1997 between 17:00 and 17:30 hours by consuming poison at her matrimonial home 16. Aforesaid complaint lodged by PW 1 the father of the deceased was registered vide I C.R.No. 341 of 1997 for the offences punishable under Sections 498 A and 306 read with Section 114 of the Indian Penal Code LL 2021 SC 415 17. A perusal of evidence of PW 1 Mustufa Chhotubhai Ghori the father of the deceased would establish that deceased was married to appellant no. 1 eight months prior to the alleged incident. He stated in his testimony that the married life of the two was smooth for initial two months however after two months of the marriage the appellant no. 1 started insisting Tahirato ask for a sum of Rs.25 000 from PW 1 to purchase buffaloes for milk business but he was unable to pay the said amount as he was earning his livelihood by running a tea stall and was also indebted. He also stated that since he could not fulfill the demand because of his weak financial position his deceased daughter was ill treated and beaten frequently by appellant no.1. He further stated that the appellant no. 2 the mother in law of the deceased also started quarreling on the pretext that the deceased could not make chapatti properly nor could she do the household work and her father has not taught her anything. He also stated that the deceased used to share her trauma with her motherwho in turn used to tell her everything. He further stated that the son in law was very suspicious and he did not let Tahirato go alone to any place and used to beat her. He also stated that lastly appellant no. 2 came to his house along with the deceased and demanded Rs.500 from his wifeas her husband was to go to Ajmer. He also stated that in the night at about 1:30A.M. PW 3 his brother came and informed about the death of the deceased. In the cross examination his testimony was unshaken. Though during cross examination it was tried to be elicited from this witness that deceased was suffering from some LL 2021 SC 415 kind of illness prior to marriage and was undergoing some treatment. The witnesses admitted in the cross examination that the deceased was suffering from some pain and his wife used to take her for treatment and was given medicine. Apart from above neither the nature of illness nor the details of the treatment or medication could be elicited from this witness. As a matter of fact there was not even a suggestion by the defence that deceased was suffering from any kind of mental illness or undergoing treatment for the same 18. The evidence of PW 1 stands corroborated by the evidence of PW 4 Dariyaben Mustufa Ghori the mother of the deceased as well as PW 3 Ahmadbhai Chhotubhai Ghori the brother of complainant and PW 5 Hanif Mustufa Ghori brother of the deceased It is pertinent to mention that much emphasis has been laid by learned counsel for the appellants on the cross examination of PW 1 wherein he stated that even before marriage the deceased was undergoing treatment and medication. Learned counsel for the appellants vehemently contended that the deceased was suffering from some mental disease and was undergoing treatment and her mental instability might have resulted in suicide. The argument is not liable to be accepted inasmuch as neither any evidence was produced by the defence in this regard nor anything about the illness or medication was stated by them in their statement under Section 313. The deceased lived in her LL 2021 SC 415 matrimonial home with the appellants for about eight months after marriage and if she was undergoing any prolonged treatment it was not possible for the appellants not to have acquired knowledge of the said facts It was next submitted by the learned counsel for the appellants that all the witnesses are relative and interested witnesses and no independent witness was examined by the prosecution to prove the case thus the prosecution case 21. Most often the offence of subjecting the married woman to cruelty is committed within the boundaries of the house which in itself diminishes the chances of availability of any independent witness and even if an independent witness is available whether he or she would be willing to be a witness in the case is also a big question because normally no independent or unconnected person would prefer to become a witness for a number of reasons. There is nothing unnatural for a victim of domestic cruelty to share her trauma with her parents brothers and sisters and other such close relatives. The evidentiary value of the close relatives interested witness is not liable to be rejected on the ground of being a relative of the deceased. Law does not disqualify the relatives to be produced as a witness though they may be interested witness LL 2021 SC 415 22. However when the Court has to appreciate the evidence of any interested witness it has to be very cautious in weighing their evidence or in other words the evidence of an interested witness requires a scrutiny with utmost care and caution. The Court is required to address itself whether there are any infirmities in the evidence of such a witness whether the evidence is reliable trust worthy and inspires the confidence of the Court. Another important aspect to be considered while analyzing the evidence of interested witness is whether the genesis of the crime unfolded by such evidence is probable or not. If the evidence of any interested witness relative on a careful scrutiny by the Court is found to be consistent and trust worthy free from infirmities or any embellishment that inspires the confidence of the Court there is no reason not to place reliance on the same 23. A three Judge Bench of this Court in the case of Maranadu and Anr. Vs State by Inspector of Police Tamil Nadu1 while considering this issue has observed as under: “Merely because the eyewitnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness the same has to be established Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible We shall also deal with the contention regarding interestedness of the witnesses for furthering prosecution 116 SCC 529 LL 2021 SC 415 “….Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible. 11. In Dalip Singh and Ors. v. The State of Punjabit has been laid down as under: 26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause such as enmity against the accused to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true when feelings run high and there is personal cause for enmity that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts." The above decision has since been followed in Guli Chand and Ors. v. State of RajasthanSCC 698) in which Vadivelu Thevar v. State of Madraswas also relied upon 13. We may also observe that the ground that the witness being a close relative and consequently being a partisan witness should not be relied upon has no substance. This theory was repelled by this Court as early as in Dalip Singh s casein which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses Speaking through Vivian Bose J. it was observed 25.We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses LL 2021 SC 415 requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in `Rameshwar v. State of Rajasthan AIR 1952 SC 54 at p.59). We find however that it unfortunately still persists if not in the judgments of the Courts at any rate in the arguments of counsel 14. Again in Masalti and Ors. v. State of U.P.this Court observed:Lehna v. State of HaryanaSCC 76) and Gangadhar Behera and Ors. v. State of OrissaSCC 381).” In the case at hands PW 1 2 3 and 4 though they are related to the deceased are natural witnesses. There being no bar in examining the family members or any other person as witnesses their evidence is not liable to be discarded on this ground. From a perusal of the evidence of the aforesaid witnesses we find that it is consistent without any material contradiction and inspires confidence. The Courts below have also properly scrutinized their LL 2021 SC 415 evidence prior to taking them into account and there is nothing unusual in believing their testimonies Thus from the evidence of the prosecution witness we have no hesitation to hold that prosecution has proved that the deceased was harassed with a view to coerce her to meet unlawful demand of Rs.25 000 and such a harassment was on account of failure by her to bring the said amount from her fatherof Section 498 A IPC 26. Suicidal death by consuming pesticide stands affirmed by the evidence of PW 2 Dr. Anand who was one of the panel members of doctors who carried out post mortem of the deceased. He stated in his cross examination that : “On 15 12 1997 I was serving as the PMC medical officer at Gandhi. At noon 3 15 hours the dead body of Tahera Gumansinh Chauhan was brought to be and the time was around 3 30 hours. In the panel doctor was Dr. Rolisharan and he is at present at the Rajkot Medical College. While checking the dead body as for the internal injuries on the legs the threads were placed. There was normal injury on the right thigh. There was no other external injury that could prove that the death occurred due to beating. Even thereafter the stomach was opened and the particular that came out had plunging smell. The samples of her intestine liver kidney and blood were obtained and were sent for analysis at the forensic science laboratory Ahmedabad so LL 2021 SC 415 that the actual facts could be known. This analysis report was sent by the forensic department to us. One was sent to police station. But I have not received a copy. Therefore I can give further deposition if the copy of police is shown to me. I am as on today shown the mark 8 9 being the papers of the prosecution and upon seeing I state that in the intestine of the deceased the poisonous pesticide Diazinon Organophosphate was found. This proves that the death of Taheraben had occurred due to consuming of poison. The panel doctor along with me undertook the post mortem of deceased. I am shown the mark 8 7 PM report and we both doctors have prepared the same. The doctor along with me has signed it in my presence. It has my signature. I identify the same. It is given exhibit 17.” His statement was intact in the cross examination and nothing contradictory could be elicited from him 27. Now the question that falls for our consideration is the prosecution having successfully established the charge of cruelty as laid down in Explanation of Section 498 A IPC and also the fact that the deceased committed suicide by consuming pesticide within seven years of marriage whether the accused can also be held guilty for the offence punishable under Section 306 IPC with the aid of Section 113 A of the Evidence Act In the case at hands the prosecution failed to adduce any direct evidence to establish that the accused abetted deceased into committing suicide. The prosecution has placed reliance on Section 113 A of the Evidence Act to establish the charge of abetment against the accused LL 2021 SC 415 Section 107 of IPC describes offence of abetment as under: “Section 107 of IPC 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 thing. Illustration A a public officer is authorized by a warrant from a Court of Justice to apprehend Z. B knowing that fact and also that C is not Z wilfully represents to A that C is Z and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C. 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 Section 306 of IPC provides punishment for the offence of abetment of suicide reads as under: “306. 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 LL 2021 SC 415 This question came up for consideration before a three Judge Bench in the case of Ramesh Kumar Vs. State of Chhattisgarh2. In pragraph 12 of the said judgment it has been observed as under : “This provision was introduced by Criminal Lawwoman has committed suicide such suicide has been committed within a period of seven years from the date of her marriage the husband or his relatives who are charged had subjected her to cruelty. On existence and availability of the abovesaid circumstances the Court may presume that such suicide had been abetted by her husband or by such relatives of her husband. The Parliament has chosen to sound a note of caution. Firstly the presumption is not mandatory it is only permissive as the employment of expression "may presume" suggests Secondly the existence and availability of the above said three circumstances shall not like a formula enable the presumption being drawn before the presumption may be drawn the Court shall have to have regard to all the other circumstances of the case . A consideration of all the other circumstances of the case may strengthen the presumption or may dictate the conscience of the Court to abstain from drawing the presumption. The expression The other circumstances of the case used in Section 113 A suggests the need to reach a cause and effect relationship between the cruelty and the suicide for the purpose of raising a presumption. Last but not the least the presumption is not an irrebuttable one. In spite of a presumption having been 2 9 SCC 618 LL 2021 SC 415 raised the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption. The phrase May presume used in Section 113 A is defined in Section 4 of the Evidence Act which says whenever it is provided by this Act that Court may presume a fact it may either regard such fact as proved unless and until it is disproved or may call for proof of it.” From the above observations it becomes clear that to attract the applicability of Section 113 A of the Evidence Act three conditions are required to be fulfilled : i. The woman has committed suicide ii. Such suicide has been committed within a period of seven years from the date of her marriage iii. The charged accused had subjected her to cruelty From the facts of the case at hands all the three conditions stand fulfilled There is no dispute about the facts that the deceased committed suicide within a period of seven years from the date of her marriage and charged accused had subjected her to cruelty as we have confirmed the findings of the Trial Court as well as High Court that prosecution has been successful in proving the charge of cruelty under Explanationof Section 498 A IPC It is no doubt correct that the existence and availability of the above said three circumstances are not to be invoked like a formula to enable the LL 2021 SC 415 presumption being drawn and the presumption is not an irrebuttable one as held by a three Judge Bench of this Court in the case of Ramesh Kumar Vs. State of 35. At this stage we may also make a reference to Section 4 of the Evidence Act which defines the phrase ‘may presume’ used in Section 113 A which reads as under : “Shall Presume whenever it is directed by this Act that the Court shall presume a fact it shall regard such fact as proved unless and until it is disproved.” The above definition of the words ‘may presume’ makes it clear that whenever the act provides that the Court may presume a fact the said fact is to be regarded as proved unless and until it is disproved 37. Admittedly in the case at hands the evidence clearly establishes the offence of cruelty or harassment caused to the deceased and thus the foundation for the presumption exists. Admittedly the appellants have led no evidence to rebut the presumption Thus in the facts and circumstances of the case it can be safely concluded that the Courts below committed no illegality in holding that the LL 2021 SC 415 accused appellants abetted the suicide of the deceased. The matter can be viewed from another angle. The prosecution was successful in establishing the charge under Section 498 A of cruelty against the appellants from which a reasonable inference can be drawn that the deceased committed suicide by consuming pesticides. The deceased was in the custody of the appellant and died within the four walls of her matrimonial home under suspicious 39. A two Judge Bench of this Court in the case of Ramesh Vithal Patil Vs State of Karnataka & Ors.3 in almost identical facts and circumstances has observed in paragraph 26 of the judgment as under: “Moreover admittedly the deceased committed suicide within a period of seven years from the date of her marriage. Section 113 A of the Evidence Act is therefore clearly attracted to this case. Presumption contemplated therein must spring in action. This provision was introduced by Criminal Law Second Amendment Act 1983 to resolve the difficulty of proof where married women are forced to commit suicide but incriminating evidence is difficult to get as it is usually available within the four walls of the matrimonial home. In this case the prosecution has led evidence to establish cruelty and harassment caused to the deceased which is rightly taken into account by the High Court. Thus the foundation for the presumption exists. The appellant however has led no evidence to rebut the presumption Therefore it can be safely concluded in the facts of this case that the appellant abetted the suicide of the 3 11 SCC 516 LL 2021 SC 415 40. Reference may also to be made to the following observations of this Court in the case of Satish Shetty Vs. State of Karnataka4 : “Once the prosecution succeeds in establishing the component of cruelty leading to conviction under Section 498 A in our view only in a rare case the Court can refuse to invoke the presumption of abetment if other requirements of Section 113 A of the Evidence Act stand satisfied. This proposition is amply supported by the view taken by the three Judge Bench of this Court in the case of K.Prema S.Rao & Anr. Vs. Yadla Srinivasa Rao & Ors.5.” In the case of K. Prema S. Raothis Court while holding that in view of Section 215 Cr.PC ommission to frame charge under Section 306 IPC has not resulted in any failure of justice and thus there was no necessity to remit the matter to the Trail Court for framing the charge under Section 306 IPC and direct a retrial for that charge. It further went on to observe as under: Section 306 “The same facts found in cruel treatment of his wife make out a case against him under IPC of having abetted commission of suicide by the wife. The appellant was charged for an offence of higher degree causing "dowry death" under Section 304B which is punishable with minimum sentence of seven years rigorous imprisonment of and maximum for life. Presumption under Section 113A the Evidence Act could also be raised against him on same facts constituting offence of cruelty under Section 498A 4 12 SCC 759 5 14 SCC 264 LL 2021 SC 415 43. On the contrary in the case at hands the following charge was framed against the accused appellants vide order dated 29.05.2000 by the Trial Court : within a period of seven years of her marriage subjected her to cruelty and harassment for all in connection with demand for dowry and thereby committed an offence of dowry death punishable under section 304Bof the Indian Penal Code and within my cognizance.” 38. It would thus be seen that the charge does not state that the deceased was driven to commit suicide on account of the harassment meted out to the deceased. It also does not mention that the accused had abetted in commission of suicide by the deceased. In that view of the matter we are of the considered view that the cases wherein conversion is held to be permissible are clearly distinguishable.” I Mr. A.C. Modi Vadodara District Additional Sessions Judge hereby frame charges against both of you the accused that The marriage of the accused no. 1 took place with Taheraben and therefore Taheraben and both accused resided together. The accused no. 1 used to undertake milk business the accused no. 1 asked regularly Taheraben to brin an amount of Rs.25 000 from her father for the purchase of milk. But as Taheraben had the idea of financial condition of her father she could not fulfill the demand. Due to this the accused no.1 used to time and again beat up Taheraben. Meanwhile the accused no.2 being the mother in law of Taheraben she used to remark that Taheraben was not doing household work in a proper manner is not cooking food properly and thereby in such a manner the accused no. 1 was wrongly incited by the accused no 2 and thus Taheraben was beaten. In this manner you both the accused within a span of eight months of marriage casued mental and physical harassment LL 2021 SC 415 to Taheraben made her life worse created a situation whereby she wished for death and due to your such behaviour left with no other option in order to end her life on 14 12 1997 from 17:00 hours to 17:30 hours Taheraben consumed pesticide at Medhad village thereby committed suidcide and hence she died In this manner you both the accused have abetted the suicide of Taheraben and thereby have committed the crime under Sections 306 498 A and 114 of the IPC I hereby declare to held judicial proceedings against you as for the same.” Thus it would be seen that not only a specific charge was framed against the accused appellants on one hand the defence failed to adduce any evidence to rebut the presumption under Section 113 A and on the other hand the prosecution was successful in establishing the evidence that the deceased was left with no choice than to commit suicide. A reference may be made to the oral testimony of PW 3 the uncle of the deceased the relevant part of his examination in chief is extracted here under: “After marriage Tahera went to reside at her matrimonial house. At the matrimonial house of Tahera resided her husband Gumansinh father in law mother in law and sister in law named Madhu. The marriage life of Tahera went properly for a period of two or two and half months of marriage. Gumansinh was suspicious by nature. He did not let Tahera go alone anywhere. He would go with Tahera due to his suspicious nature. He did not let her talk with anyone and would do inquiry as to such things. He would ask Tahera to bring Rs.25 000 from her father as he wished to purchase buffaloes and do business of milk. Tahera would state that his father has a tea stall and there was debt on LL 2021 SC 415 him how could he give money! Thus as the amount was not given Gumansinh used to beat Tahera quarrel with her and thereby physically and mentally harass her. The mother in law of Tahera would state that Tahera did not cook well she did not do work properly. The mother in law of Tahera would instigate the husband of Tahera and thus she would create a quarrel between them. I used to go to the house of my brother Mustufa regularly for my business purpose. At that place Tahera told these things time and again these were told to me by brother and sister in law. Tahera had come to meet me for 5 7 times and she also told me these “On Monday Mustufa talked with me that from Medadh that Tahera and her mother in law arrived at his house The mother in law of Tahera asked that they be given buffaloes while purchasing them from Isamil. Or else an amount of Rs.5000 be given. But Tahera’s mother denied doing this. They further stated that the father in law of Tahera was going to Ajmer and thus an amount of Rs.500 be given. This amount of Rs.500 was given to Dariyaben the mother in law of Tahera. He further stated on the phone that the harassment is going on increasing now. Due to which Tahera had asked that uncle be informed that she cannot take it anymore the harassment is going on and thus she should be taken On the second day my mother Sakina my wife Rashida and I i.e. we three persons went to Medhad in three wheeler tempo. We meet the mother in law of Tahera at that place The mother in law of Tahera told me that son of her elder brother was to be operated and he has to go to hospital. We asked her to send Tahera with us and she replied that the father in law of Tahera was to go to Ajmer due to which she should be returned. Thereafter I brought Tahera to my house at Bhoj. Tahera remained at my house for a period of 2 3 days and Tahera told me that even now she is harassed Even now Gumansinh is seeking the amount and he is beating her. Moreover her mother in law is even stating that Tahera is not cooking well and that she does not do work properly. Thus her mother in law would in some other manner start a quarrel with her and make Gumansinh beat LL 2021 SC 415 her. Tahera told me that she will not be able to keep up with it if this goes on and that she will not return. The father in law of Tahera was to go to Ajmer and therefore we told Tahera that these sorrowful days will pass thereby sent her to her matrimonial house. I told her that I will not send her if further harassment would be kept. I explained her this thing and sent her to her matrimonial house She was dropped to her matrimonial house at Medadh by my son and other two persons in the Tempo. Thereafter on that very night at 11:00 to 11:30 hours Fatmaben being the mother in law of Tahera and vikram being the son in law of Fatmaben along with another one man arrived at my house They told me that Tahera consumed poison and therefore has expired. I told these people to inform this to her father Mustufa thereafter I searched for a vehicle and went to inform this thing to my brother Mustufa at Fertilizernagar. I also informed this to my other brother Usman who resided at Tandalja and also informed this to others. I told my brother to inform this to all and went to the house of my brother Musfufa. I informed him that Tahera has expired in her matrimonial house as she consumed poison … The testimony of this witness was unshaken during cross examination and nothing contrary could be elicited from him and thus we find no fault with the Trial Court and the Appellate Court placing reliance on the evidence in drawing the presumption under Section 113 A particularly when there was no material brought on record by the defence to disprove the facts 46. Both the Trial Court as well as the High Court have threadbare considered the evidence and have recorded cogent reasons to come to the conclusion that LL 2021 SC 415 the prosecution has been successful in proving the case against the appellants beyond reasonable doubt 47. Having gone through the relevant facts and the reasonings recorded by the Trial Court and affirmed by the High Court we are not persuaded to take a different view. Thus we find no reason to interfere with the impugned judgment. The appeals are therefore dismissed S. ABDUL NAZEER NEW DELHI 03RD SEPTEMBER 2021 LL 2021 SC 415

Amended provision under Section 143A of the Negotiable Instruments Act,1881 is mandatory in nature: Chhattisgarh High Court

Section 143A of the negotiable instruments act directs the offender to pay an interim compensation of 20% of the total value of the cheque. Such a compensation is mandatory and is not discretionary since the aim and objection behind the act is to provide relief. This was decreed by the court in Hon’ble Shri Justice Narendra Kumar Vyas in Rajesh Soni vs. Mukesh Verma [CRMP No. 562 of 2021] on the 30th of June 2021. The brief facts of the case are, the petitioner gave a cheque amounting Rs. 6,50,000/- on 26.11.2018 in favour of the defendant. When the defendant deposited such a cheque in the bank, the cheque was dishonoured due to insufficient fund. On 17.12.2018, the petitioner sent a legal notice with respect to the cheque bounce but no response was received. A complaint under Section 143A of the Act was filed against the petitioner contending that the charges have already been framed wherein he has denied the charges levelled against him. The judicial magistrate issued an order on 24.12.2019, directing the petitioner to pay 20% interim compensation asper the provisions of Section 143A. Aggrieved by this, the petitioner filed a criminal revision petition. This petition was dismissed by the additional sessions judge. This is challenged by the petitioner in the present case before the Hon’ble High Court. The counsel for the petitioner contended that the order by the judicial magistrate and the additional sessions judge was perverse since the provisions of section 143A use the word ‘may’. Such a use of the word implies that the interim compensation of 20% is discretionary by the findings of the court and is not a blanket rule. After listening to the contentions of both the parties, the court held that Section 143A of the act was amended with the aim to secure the interest of the complainant along with increasing the efficacy and expediency of proceedings under Section 138 of the Act, 1881. To support this, the court relied on Bachahan Devi & another Vs. Nagar Nigam, Gorakhpur & another, (2008) 12 SCC 372, wherein the word ‘may’ was interpreted as, “If it appears to be the settled intention of the legislature to convey the sense of compulsion, as where an obligation is created, the use of the word “may” will not prevent the court from giving it the effect of Compulsion or obligation. Where the statute was passed purely in public interest and that rights of private citizens have been considerably modified and curtailed in the interests of the general development of an area or in the interests or removal of slums and unsanitary areas. Though the power is conferred upon the statutory body by the use of the word “may” that power must be construed as a statutory duty. Conversely, the use of the term ‘shall’ may indicate the use in optional or permissive sense. Although in general sense ‘may’ is enabling or discretional and “shall is obligatory, the connotation is not inelastic and inviolate.” Where to interpret the word “may” as directory would render the very object of the Act as nugatory, the word “may must mean ‘shall’.”

Page AFRHIGH COURT OF CHHATTISGARH BILASPURCRMP No. 5621Order Reserved on : 22.06.2021Order Delivered on : 30 .06 .2021Rajesh Soni S o Shri P.R. Soni Aged About 44 Years R o OppositeHarsh Tower Devpuri Tehsil & District RaipurPetitionerVersus Mukesh Verma S o Late Shri J.P. Verma Aged About 57 Years R oOpposite Suraj Kirana Store Nandi Chowk Tikrapara Tehsil &District RaipurRespondent For Petitioner: Mr. D.K. Gwalare Advocate.Hon ble Shri Justice Narendra Kumar VyasCAV Order1.The petitioner has filed present petition under Section 482 ofCr.P.C. challenging the order dated 24.12.2019 passed byJudicial Magistrate First Class Raipurin ComplaintCase No. 1777 2019 wherein learned trial court has allowedthe application filed by the complainant under Section 143A ofthe Negotiable Instrument Act 1881bywhich the criminal revision filed by the petitioner has beenrejected. 2.The brief facts as projected by the petitioner are thatcomplainant respondent has filed complaint against thepetitioner under Section 138 of the Act 1881 on 09.01.2019before Judicial Magistrate First Class Raipur District Raipur(C.G.) mainly contending that the petitioner had given a Page cheque dated 26.11.2018 amounting to Rs. 6 50 000 to thecomplainant. The complainant has deposited the cheque on28.11.2018 in the account maintained by him in Central Bankof India Branch Chhattisgarh College Raipur. The saidcheque was dishonoured and returned due to insufficient fundon 14.12.2018 therefore the offence under Section 138 of theAct 1881 has been committed by the petitioner. 3.The complainant has sent a legal notice to the petitioner on17.12.2018 as petitioner has not paid the amount of cheque therefore the complainant has filed a Complaint Case No.1777 2019 before Judicial Magistrate First Class Raipur Thelearned Judicial Magistrate First Class taking cognizance onthe complaint issued summon to the petitioner. On04.05.2019 the complainant has filed an application underSection 143A of the Act 1881 contending that the chargeshave already been framed wherein he has denied the chargeslevelled against him. Further contention of the complainant isthat as per the provisions of Section 143A of the Act 1881 ifcharges have been framed against the accused the interimcompensation can be ordered by the Court to the extent of20% of the cheque amount therefore he prayed for grant of20% of the amount as interim compensation.4.The learned Judicial Magistrate First Class vide its order dated24.12.2019 considering the amended provisions of Section143A of the Act 1881 directed the accused to pay 20% of thecheque amount as compensation failing which proceedingunder sub sectionof Section 143A will be initiated againstpetitioner thereafter fixed the case for hearing on 20.01.2020.5.Being aggrieved by the aforesaid order the petitionerpreferred Criminal Revision No. 102 2020 before the SessionsJudge Raipur which was transferred to the Court of 11thAdditional Sessions Judge Raipur District Raipur. Thelearned 11th Additional Sessions Judge vide its order dated06.03.2021 dismissed the revision by recording a finding thatthere is no illegality and irregularity in the impugned order Page passed by the learned Judicial Magistrate First Class Raipurand same is inconformity with the amended provisions ofSection 143A of the Act 1881. Both these orders have beenchallenged by the petitioner in the present petition. 6.Learned counsel for the petitioner would submit that as peramended provision of Section 143A of the Act 1881 grant ofinterim compensation is not mandatory and it is discretionary therefore it is not necessary in every case to grant 20% ofcheque amount as interim compensation. He has drawnattention of this Court towards amended provision of Section143A of the Act 1881 which is extracted below: “143A Power to direct interimcompensation Notwithstanding anythingcontained in the Code of Criminal Procedure 1973the Court trying an offenceunder Section 138 may order the drawer of thecheque to pay interim compensation to thecomplainantin a summary trial or summon case where the drawer pleads not guilty to theaccusation made in the complaint and(b) in any other case upon framingcharges.(2)The interim compensation under sub sectionshall not exceed twenty per cent of theamount of the cheque.(3)The interim compensation shall be padwithin sixty days from the date of the order undersub sectionor within such further period notexceeding thirty days as may be directed by theCourt on sufficient cause being shown by thedrawer of the cheque.(4) If the drawer of the cheque is acquitted theCourt shall direct the complainant to repay to thedrawer the amount of interim compensation withinterest at the bank rate as published by theReserve Bank of India prevalent at the beginningof the relevant financial years within sixty daysfrom the date of the order or within such furtherperiod not exceeding thirty days as may bedirected by the Court on sufficient cause beingshown by the complainant.(5)The interim compensation payable underthis section may be recovered as if it were a find Page under section 421 of the Code of CriminalProcedure 197312 SCC 372 Page the use of the word `shall or may depends onconferment of power. Depending upon thecontext may does not always mean may. May is a must for enabling compliance of provision butthere are cases in which for various reasons assoon as a person who is within the statute isentrusted with the power it becomesduty toexercise11 SCC 341 Page “8.Now so far as the submission on behalf ofthe Appellants that even considering thelanguage used in Section 148 of the N.I. Act asamended the appellate Court "may" order theAppellant to deposit such sum which shall be aminimum of 20% of the fine or compensationawarded by the trial Court and the word used isnot "shall" and therefore the discretion is vestedwith the first appellate court to direct theAppellant Accused to deposit such sum and theappellate court has construed it as mandatory which according to the learned Senior Advocatefor the Appellants would be contrary to theprovisions of Section 148 of the N.I. Act asamended is concerned considering the amendedSection 148 of the N.I. Act as a whole to be readwith the Statement of Objects and Reasons ofthe amending Section 148 of the N.I. Act thoughit is true that in amended Section 148 of the N.I.Act the word used is "may" it is generally to beconstrued as a "rule" or "shall" and not to directto deposit by the appellate court is an exceptionfor which special reasons are to be assigned.Therefore amended Section 148 of the N.I. Actconfers power upon the Appellate Court to passan order pending appeal to direct the Appellant Accused to deposit the sum which shall not beless than 20% of the fine or compensation eitheron an application filed by the original complainantor even on the application filed by the Appellant Accused Under Section 389 of the Code ofCriminal Procedure to suspend the sentence.The aforesaid is required to be construedconsidering the fact that as per the amendedSection 148 of the N.I. Act a minimum of 20% ofthe fine or compensation awarded by the trialcourt is directed to be deposited and that suchamount is to be deposited within a period of 60days from the date of the order or within suchfurther period not exceeding 30 days as may bedirected by the appellate court for sufficientcause shown by the Appellant. Therefore ifamended Section 148 of the N.I. Act ispurposively interpreted in such a manner it wouldserve the Objects and Reasons of not onlyamendment in Section 148 of the N.I. Act butalso Section 138 of the N.I. Act. NegotiableInstruments Act has been amended from time totime so as to provide inter alia speedy disposalof cases relating to the offence of thedishonoured of cheques. So as to see that due todelay tactics by the unscrupulous drawers of the Page 1dishonoured cheques due to easy filing of theappeals and obtaining stay in the proceedings an injustice was caused to the payee of adishonoured cheque who has to spendconsiderable time and resources in the courtproceedings to realise the value of the chequeand having observed that such delay hascompromised the sanctity of the chequetransactions the Parliament has thought it fit toamend Section 148 of the N.I. Act. Therefore such a purposive interpretation would be infurtherance of the Objects and Reasons of theamendment in Section 148 of the N.I. Act andalso Section 138 of the N.I. Act.”15.The Hon ble Supreme Court in G.J. Raja Vs. Tejraj Surana4 has examined the amended Section 143A of the Act 1881and held that it is prospective effect and not retrospectiveeffect. The relevant para of the judgment is reproducedbelow: “19. It must be stated that prior to the insertion ofSection 143 A in the Act there was no provisionon the statute book whereunder even before thepronouncement of the guilt of an accused oreven before his conviction for the offence inquestion he could be made to pay or depositinterim compensation. The imposition andconsequential recovery of fine or compensationeither through the modality of Section 421 of theCode or Section 357 of the code could also ariseonly after the person was found guilty of anoffence. That was the status of law which wassought to be changed by the introduction ofSection 143A in the Act. It now imposes a liabilitythat even before the pronouncement of his guiltor order of conviction the accused may with theaid of State machinery for recovery of the moneyas arrears of land revenue be forced to payinterim compensation. The person would therefore be subjected to a new disability orobligation. The situation is thus completelydifferent from the one which arose forconsideration in ESI Corpn. v. Dwarka NathBhargwa 7 SCC 131. 23.In the ultimate analysis we hold Section143A to be prospective in operation and that theprovisions of said Section 143A can be applied orinvoked only in cases where the offence under4(2019) 19 SCC 469 Page 1Section 138 of the Act was committed after theintroduction of said Section 143A in the statutebook. Consequently the orders passed by theTrial Court as well as the High Court are requiredto be set aside. The money deposited by theAppellant pursuant to the interim directionpassed by this Court shall be returned to theAppellant along with interest accrued thereonwithin two weeks from the date of this order.”16.Therefore the word “may” be treated as “shall” and is notdiscretionary but of directory in nature therefore the learnedJudicial Magistrate First Class has rightly passed the interimcompensation in favour of the complainant.17.In L.G.R. Enterprisesthe Hon ble Madras HighCourt held as under: “8.Therefore whenever the trial Courtexercises its jurisdiction under Section 143A(1) ofthe Act it shall record reasons as to why it directsthe accused personto paythe interim compensation to the complainant. Thereasons may be varied. For instance the accusedperson would have absconded for a longtime andthereby would have protracted the proceedings orthe accused person would have intentionallyevaded service for a long time and only afterrepeated attempts appears before the Court orthe enforceable debt or liability in a case is borneout by overwhelming materials which the accusedperson could not on the face of it deny or wherethe accused person accepts the debt or liabilitypartly or where the accused person does notcross examine the witnesses and keeps ondragging with the proceedings by filing onepetition after another or the accused personabsonds and by virtue of a non bailable warranthe is secured and brought before the Court after along time or he files a recall non bailable warrantpetition after a long time and the Court whileconsidering his petition for recalling the non bailable warrant can invoke Section 143A(1) of theAct. This list is not exhaustive and it is moreillustrative as to the various circumstances underwhich the trial Court will be justified in exercisingits jurisdiction under Section 143A(1) of the Act bydirecting the accused person to pay the interimcompensation of 20% to the complainant. Page 19.The other reason why the order of the trialCourt under Section 143A(1) of the Act shouldcontain reasons is because it will always besubjected to challenge before this Court. ThisCourt while considering the petition will only lookfor the reasons given by the Court below whilepassing the order under Section 143A(1) of theAct. An order that is subjected to appeal orrevision should always be supported by reasons.A discretionary order without reasons is on theface of it illegal and it will be setaside on thatground alone.” 18.The judgment cited by learned counsel for the petitioner alsoindicates that the Judicial Magistrate First Class has to pass areasoned order for determining quantum of compensation which is payable to the victim looking to the facts andcircumstances each case but does not suggest any iota thatgrant of compensation as per Section 143A of the Act 1881 isof discretionary in nature. 19.From perusal of provisions of the Act 1881 considering theaims behind object of the Act 1881 and the law laid down bythe Supreme Court I am of the considered view that theamendment in Section 143A of the Act 1881 is mandatory innature therefore the learned Judicial Magistrate First Classhas rightly passed the order of interim compensation in favourof the respondent and has not committed any irregularity orillegality in passing such order. The learned 11th AdditionalSessions Judge has also not committed any irregularity orillegality in rejecting the revision filed by the petitioner whichwarrants any interference by this Court. 20.In view of the above this petition being devoid of merits isliable to be and is hereby dismissed. No order as to costs. Sd (Narendra Kumar Vyas)JudgeArun

Guidelines issued by Delhi High Court for admission to Medical PG: Delhi High Court

The court is of the opinion that this confusion could have been averted if there were proper checks in place at different levels of counselling. The checks ought to have been installed at the time of registration and prior to allotment in the first round. The present petition and all pending applications are disposed of. This order is passed in the peculiar facts of this case and shall not be treated as a precedent. The Hon’ble High Court at Delhi in Dr Machat Balakrishnan Menon V. Medical Council Committee & Ors. [W.P. (C) 4755/2020], issued guidelines for admission in the Medical PG exam, in the wake of a petition filed by an aggrieved student who sought admission in college despite filling under the wrong quota. The facts relating to this case is: Court rejected the petitioner’s plea but also stated that the situation could have been avoided had there been proper checks in place at different levels of counselling. The Petitioner who is a doctor from Kerala University of Health studies filed a petition to preserve his admission at the Maulana Azad Medical College (MAMC). He holds an EWS certificate and appeared for the NEET exam in January under All India Quota, Central Inst. Quota and the Delhi University (DU) Quota. He was allotted a college in the first round but did not take admission to the college. Again in the second round, he did not get any allotment but in the mop-up round, he was allotted MD in MAMC. He took admission but later admission was cancelled because he wrongfully submitted to DU quota. Despite appealing to authorities he did not receive any action and thus approached the court. The Hon’ble Court ruled that “The Court while being empathetic with the position in which the Petitioner currently finds himself, however, cannot direct confirmation of his admission in MAMC under the Delhi University Quota. Accordingly, the relief sought for, for confirming the Petitioner’s admission in MD (Pathology) in MAMC cannot be granted”. The Court further directed the state of Kerala to allot any unfilled seat to the Petitioner in a post-graduate medical course owing to the predicament of the petitioner and also the fact that the deadline of the counselling of the same was postponed.

7 IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 25th August 2020 W.P.(C) 4755 2020 DR. MACHAT BALAKRISHNAN MENON Petitioner Through: Mr. John Mathew and Mr. Karthik SD Advocates.MEDICAL COUNCIL COMMITTEE & ORS. Respondents Through: Mr. Kirtiman Singh CGSC with Mr. Rohan Anand Mr. Waize Ali Noor for R 1. With Mr. Srinivas DG MCC. Mr. Sanjay Dewan and Ms. Nishima Arora R 2. Mr. T. Singhdev and Mr. Ahijit Chakravarty Adocate for R 4. Mr. G. Prakash Standing Counsel for JUSTICE PRATHIBA M. SINGH Prathiba M. Singh J.CM APPL.17161 20204755 2020 W.P.(C) 4755 2020 & CM APPLs.17160 2020This hearing has been held through video conferencing. The Petitioner is a qualified doctor who finished his M.B.B.S. from Travancore Medical College Kollam which is affiliated to the Kerala University of Health Sciences. He has filed the present writ petition with a prayer to preserve his admission at the Maulana Azad Medical College hereinafter “MAMC”) for MDand holds an EWS certificate from the State of Kerala. He appeared in the National Eligibility Entrance Testexamination conducted by the National Board of Examination on 5th January 2020. The results of the examination were published on 29th January 2020 and the Petitioner obtained rank No.35948. As per procedure the Petitioner had to register himself for counselling for various quotas. The counselling is conducted by the Medical Counseling Committee at the National Institute of Community Health New Delhi in the first round of counselling. He however did not take up the same and awaited the second round of counselling. In the second round of counselling it is the Petitioner’s case that he was not allotted any seat however in the mop up round he was allotted a seat for MDin MAMC. He received an e mail on 25th July 2020 asking him to report to MAMC along with all the necessary documents. He thereafter travelled and reported at MAMC on W.P.(C) 4755 2020 26th July 2020 and took admission. However sometime in the evening after the admission process was completed he was informed by the college staff that he had been wrongfully allotted a seat under the Delhi University Quota and thus his admission could not be confirmed. He thereafter visited the office of the Registrar MAMC but did not get any clarity from him. The Petitioner even met Dr. B. Srinivas ADGME Directorate General of Health Services Ministry of Health and Family Welfare in New Delhi and wrote an e mail on 27th July 2020 to MCC however there was no clarity. Accordingly he preferred the present petition. 7. On 30th July 2020 ld. counsels for Respondent Nos.1 and 4 were present on advance notice. On the said date after taking a prima facie view this Court had directed that the seat allotted to the Petitioner would not be filled in further counselling sessions till the next date of hearing. Thereafter the matter has been heard on 19th August 2020 and today. Replies have been filed by Respondent No.1 and the Petitioner has filed additional documents. Respondent No.3 i.e. the University of Delhi has also filed its counter affidavit. These documents are taken on record. 8. Mr. John Mathew ld. counsel appearing for the Petitioner submits that the Petitioner never intended to apply under the Delhi University Quota without being eligible. He submits that in the initial registration itself when he registered with DU he fairly disclosed the college from where he completed his M.B.B.S. It is his submission that the MCC and the MAMC are aware of the college from where he passed his M.B.B.S. Thus there is no intention to mislead. He submits that the Petitioner was also allotted a seat in State Quota in the mop up round. However because he had been allotted a seat in MAMC he opted not to take admission in the MD W.P.(C) 4755 2020 Psychiatry programme at Dr. Somervell Memorial CSI Medical College Karakonam Thiruvananthapuram under the private self financing category. The last date for him to accept admission in the said college was 28th July 2020. Since he had already been allotted MAMC by then he had travelled to Delhi and the seat at SMC was forgone by him. 9. Ld. counsel submits that the authorities owe a duty to the candidates to verify the information so that confusion is not created in the minds of candidates who are applying for counselling. He submits that MCC also knew that the Petitioner had studied from Travancore Medical College Kollam Kerala. Thus even if the candidate makes a mistake the authorities ought to have some re verification procedure failing which the candidates would be deprived of such valuable seats. Ld. counsel submits that the Petitioner has obtained a seat in MAMC in a bona fide manner and in any event a student from DU with a lesser rank would be able to take his seat. Accordingly he submits that in view of the fact that counselling is completed the Petitioner may not be deprived of his seat in MAMC. 10. Ld. counsel for the Petitioner has also relied upon the judgment in Duddugunta Vishnu Priya v. Directorate General of Health Services & Anr 3636 2020 decided on 3rd July 2020] to argue that the Petitioner should not be made to suffer due to a bona fide human error. 11. On behalf of Respondent No.1 Mr. Kirtiman Singh ld. CGSC duly instructed by Prof. Mr. Srinivas from the MCC has placed on record the various forms which were filled by the candidates. Ld. counsel has also taken the Court through the various stages for filling of the counselling form. He submits that the candidates are well aware that only those W.P.(C) 4755 2020 candidates who complete their M.B.B.S. from DU are eligible for the Delhi University Quota. Thus he submits that the Petitioner was conscious of the fact that his allotment itself was a mistake in view of the mistaken quota in which he had applied. It is further submitted that upon seeing the documents of the Petitioner when MAMC realised that the Petitioner had completed his M.B.B.S. from Kerala he was immediately informed that his admission cannot be confirmed. 12. On the last date considering this predicament of the Petitioner notice was issued to the State of Kerala. Mr. G. Prakash ld. standing counsel has appeared for the State of Kerala and submits that the Petitioner did not make it in the first few rounds of counseling in Kerala and was only allotted a seat in the mop up round. However since the Petitioner has given up his seat the said seat may have reverted to the Medical College itself. Ld. counsel however submits that if there are any seats available the State of Kerala would endeavour to allot a seat to the Petitioner under the private self financing category. 13. Heard ld. Counsel for the parties. A perusal of the various documents filed on record shows that the Petitioner had registered in the counselling form for the All India Quota Delhi University Quota Central Inst. Quota. This was a clear mistake. There was no doubt about the fact that the Petitioner ought to have been conscious of the fact that he would not have been eligible under the Delhi University Quota. 14. As per question No. 57 of the FAQs circulated to all the candidates prior to registration for counselling the eligibility criteria for each of the institutional quotas is set out below. The said FAQ reads as under: “Q.No. 57: What will be the eligibility criteria for 50% W.P.(C) 4755 2020 Institutional seats of Central Universities which is being conducted by DGHS Ans: The eligibility conditions of the 50% Institutional Quota of the Central Universities will be as per the following eligibility criteria given by the respective institutions. For additional information please contact the concerned University. An Institutional candidate is one who has passed the qualifying by THIS University as a regular student not earlier than THREE academic years from the date of admission to the Course he she is seeking admission to. And all other candidates shall he treated as External. For Admission to M.D M.S. M.D.S PG Diploma course 2020 in the faculty of medicine candidates who complete their internship between April 01 2017 and March 31 2020 shall be considered Inernal Candidates. Further it is pointed out that for Stray Vacancy Round only Institutional candidates arc eligible to Only those Candidates who have passed Institute of Medical Sciences. BHU in Dccember 2018 Supplementary Batch by 31.3.2019) and have completed compulsory rotatory internship before 31.3.2020 will be considered for admission to M.D. M.S. IMS BHU under Course 2020 pool provided the candidate has appeared and in NEET PG W.P.(C) 4755 2020 Candidates who are already pursuing M.D. M.S. course in IMS BHU through internalquota OR passed institute of Medical Sciences BHU in earlier academic years i.e. before December 2018 ) are not eligible for admission to PG Course 20 20 under BHU internala) For Delhi University Quota : The candidate must have passed final for MD MS M.B.B.S examination Diploma Course) and BDS examination for MDS Course) from the University of Delhi and must have completed satisfactorily one year rotating internship as on 31.03.2020 and must have submit their internship completion certificate at the time of The eligibility for Central Institutes will be as per admission brochure 2020 21 of Guru Gobind University. For more information please refer to their website www.ipu.ac.in . Affiliated to IP ABVIMS VMMC ES IC) As per the above it is clear that in order to avail of a PG seat in Delhi University Quota the candidate must have passed his her final M.B.B.S. from Delhi University. 15. Insofar as the registration form itself is concerned unfortunately the registration form of the MCC merely asks for the quota in which the candidate is applying and there is no field available for the candidate to W.P.(C) 4755 2020 mention the college and the University from where he she has completed their M.B.B.S. In the absence of such a field there is a responsibility on the candidates as also the authorities to ensure that the candidates who apply for the quota are eligible before allotments are made. This however has not happened in the present case. 16. The Delhi University Quota is available to students who have completed their M.B.B.S. from DU. The Petitioner is clearly not qualified for the Delhi University Quota. The Petitioner at best was entitled to a seat in the All India Quota or in the State Quota for Kerala depending upon his rank. In the All India Quota the Petitioner was not allotted any seat owing to the fact that his rank was beyond 35 000. In the State Quota he was allotted a seat in the mop up round however owing to his seat in MAMC he gave up the State Quota allotment. The conclusion of this conundrum is that the Petitioner has not been able to obtain any seat in any medical college for his post graduate studies. Owing to the fact that the Petitioner does not satisfy the eligibility for being considered in DU quota the relief sought is not tenable. 17. The judgement in Duddugunta Vishnu Priya is clearly distinguishable inasmuch as in the said judgment the Court held that the Petitioner therein had been offered a seat strictly as per her rank. There was a technical glitch due to which the Petitioner therein was not allotted the course of her choice. Under such circumstances the Court held that due to the technical error the Petitioner should not be made to suffer. She was a high ranking student to whom the seat was directed to be allotted as per her rank. However this is not so in the present case. Clearly as per the rank of the Petitioner the Petitioner would not be entitled to a seat in MAMC. W.P.(C) 4755 2020 In addition this Court is of the opinion that this confusion could have been averted if there were proper checks in place at different levels of counselling. The checks ought to have been installed at the time of registration and prior to allotment in the first round. Since there were no checks and partly due to the Petitioner’s fault he has been put in this situation. The Court while being empathetic with the position in which the Petitioner currently finds himself however cannot direct confirmation of his admission in MAMC under the Delhi University Quota. Accordingly the relief sought for for confirming the Petitioner’s admission in MD Pathology) in MAMC cannot be granted. 19. However the additional documents which have been placed on record clearly show that the Petitioner was allotted a seat in SMC under the private self financing quota in MD Psychiatry which is a seat in a clinical course. The State of Kerala is represented before this Court. It is submitted by ld. counsels for parties that the last date of counselling has been extended to 31st August 2020. Owing to the predicament of the Petitioner and the peculiar facts of this case the State of Kerala shall allot any unfilled seat to the Petitioner in a post graduate medical course to enable him to take admission on or before 31st August 2020. 20. For the future in order to avoid a situation as has arisen in the present case the following directions are passed: i) At the time of registration for counselling there shall be a specific field which candidates would be required to fill up with details of the college and the University from where they have completed their M.B.B.S. course. ii) Upon the said field being incorporated the system should be W.P.(C) 4755 2020 designed in such a manner that only those quotas for which the candidates are eligible would be made available to the candidates. For example if the candidate has completed the M.B.B.S. course from Kerala and the name of the college is filed up along with the name of the University the Delhi University quota should not be made available to such a candidate. This would ensure that the complexity created due to the presence of various quotas in counselling is eliminated. This would also ensure that candidates are not put through gruelling circumstances in the course of the counselling which takes place over a period of three to four months every year. iii) After registration prior to allotment of seats the data submitted by candidates shall be cross verified with the data available with MCC so that wrong allotments are not made. 21. Mr. G. Prakash ld. counsel shall communicate this order today itself so that the Petitioner can be allotted any vacant seat within the State of Kerala under the State Quota. 22. With these observations the present petition and all pending applications are disposed of. This order is passed in the peculiar facts of this case and shall not be treated as a precedent. PRATHIBA M. SINGH AUGUST 25 2020 W.P.(C) 4755 2020

Appellate Medical Disability Board shall not consist of doctors from the previous Medical Examination as per Civil Services Examination Rules, 2020: Delhi High Court

The issue is whether the candidate who had cleared the Civil Services Examination under Disability category, have the right to seek for an Appellate Medical Disability Examination not constituting doctors from previous examination, where it is declared that such candidate is less than 40% disabled. This was clarified in the case of Shubham Agarwal v. Union of India, in W.P.(C) 11809/2021, by Hon’ble Ms. Justice Rekha Palli. The Facts of the case are that the petitioner, a physically disabled candidate, cleared the Civil Services Examination, 2020 securing a rank of 755. The grievance of the petitioner is that the Medical Board comprising of doctors at Safdarjung Hospital had declared his disability to be less than 40% in its initial medical examination report dated 05.08.2021, which report was subsequently certified by the doctors of AIIMS on 10.08.2021, petitioner apprehends that he may not be treated fairly if the Appellate Medical Examination was conducted by doctors associated with any of these two hospitals. The counsel for the petitioner had had contended that clause 2.1 of the Regulations relating to the physical examination of candidates (“Regulations”), as contained in Appendix III of the Civil Services Examination Rules, 2020 (“Rules”) shows that the medical examination of the petitioner by the Appellate Board could be easily conducted at any of the other hospitals referred to in the said clause. However, when the notice was served, the respondents did not provide any explanation as to why the said examination cannot be conducted by a body comprising of doctors who are not associated with either AIIMS or Safdarjung Hospital. It was also contended that the petitioner could claim that his Appellate Medical Examination should be conducted by a Medical Board comprised of doctors from a designated hospital other than the ones in which his initial medical examination was conducted on 05.08.2021. The counsel for the petitioner had also relied on para 7(a)(xiii) of the Regulations, containing general guidelines to be followed by Medical Boards. “7. General Guidelines for Medical Boards: – (a) The following intimation is made for the guidance of the Medical Examination: — xiii. Such Candidates going into Appeal may be referred to the Appellate Medical/Specialized Disability Medical Board of a designated Hospital other than the one in which previous Medical Examination was conducted.” It was also observed that there is no reason as to why the petitioner should be compelled to undergo the appellate medical examination at AIIMS and that too when there are various other designated hospitals referred to in para 2.1 of the Regulations forming part of the Rules as contained in Appendix III thereof. After determining the facts and circumstances, the Court had allowed the Petition and directed the respondent to get the petitioner medically examined by an Appellate Medical Board at any of the four hospitals referred to in clause 2.1 of the said Regulations, other than Safdarjung Hospital and AIIMS. The writ petition along with the pending applications are disposed of.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 03.12.2021 W.P.(C) 11809 2021 & CM APPL. 36538 2021SHUBHAM AGARWAL Through: Mr. Tanmay Mehta Mr. H.S. Nanda Petitioner Mr. Hemant Shah & Ms. Shreya Gupta Advocates Respondent Through: Mr. Vikrant N. Goyal Advocate UNION OF INDIA REKHA PALLI JHON BLE MS. JUSTICE REKHA PALLI The petitioner a physically disabled candidate having cleared the Civil Services Examination 2020 by securing a rank of 755 has approached this Court seeking a direction to the respondent to constitute an independent Appellate Medical Disability Board which does not comprise of doctors either from All India Institute of Medical Sciences or Safdarjung Hospital to conduct his medical examination in order to determine the percentage of disability from which he claims to be suffering. The grievance of the petitioner is that once the Medical Board comprising of doctors at Safdarjung Hospital had declared his disability to be less than 40% in its initial medical examination report dated 05.08.2021 which report was subsequently certified by the doctors of AIIMS on 10.08.2021 he apprehends that he may not be treated fairly if his Appellate W.P.(C) 11809 2021 Medical Examination was conducted by doctors associated with any of these two hospitals. On the last date learned counsel for the petitioner had drawn my attention on clause 2.1 of the Regulations relating to the physical examination of candidatesas contained in Appendix III of the Civil Services Examination Rules 2020which are applicable to the present case to contend that the medical examination of the petitioner by the Appellate Board could be easily conducted at any of the other hospitals referred to in the said clause. Upon notice being issued counter affidavit has been filed by the respondent wherein besides reiterating that they have decided to get the petitioner’s Appellate Medical Examination conducted at AIIMS no explanation whatsoever has been given as to why the said examination cannot be conducted by a body comprising of doctors who are not associated with either AIIMS or Safdarjung Hospital. In support of his plea that he is entitled to claim that his Appellate Medical Examination should be conducted by a Medical Board comprised of doctors from a designated hospital other than the ones in which his initial medical examination was conducted on 05.08.2021 learned counsel for the petitioner has relied on para 7(a)(xiii) of the Regulations containing general guidelines to be followed by Medical Boards which reads as under: “7. General Guidelines for Medical Boards: a) The following intimation is made for the guidance of the Medical Examination :— xxx xiii. Such Candidates going into Appeal may be referred to the Appellate Medical Specialized Disability Medical Board of a W.P.(C) 11809 2021 designated Hospital other than the one in which previous Medical Examination was conducted.” In the light of the aforesaid especially since the respondents have not been able to point out anything in the applicable Rules of 2020 which would mandate that the Appellate Medical Examination to determine the disability of a physically disabled candidate must be carried out at AIIMS I am of the view that there is no reason as to why the petitioner should be compelled to undergo the appellate medical examination at AIIMS and that too when there are various other designated hospitals referred to in para 2.1 of the Regulations forming part of the Rules as contained in Appendix III thereof. In this manner the petitioner’s apprehension of not being treated fairly can be easily put to rest. The said clause which gives a list of designated hospitals includes various other hospitals besides Safdurjung Hospital and AIIMS and the same reads as under: “2.1. Designated Hospitals to conduct Medical Test would be conducted in viz. Safdarjung Hospital Dr. Ram Manohar Lohia Hospital Lok Nayak Jai Prakash Narayan Hospital Sucheta Kriplani Hospital Guru Teg Bahadur Hospital Deen Dayal Upadhyay Hospital B.R. Ambedkar Hospital AIIMS New Delhi etc. The decision of the Government regarding the date venue and suitability of the Candidate for appointment to a service shall be final.” The writ petition is therefore allowed by directing the respondent to get the petitioner medically examined by an Appellate Medical Board at any of the four hospitals referred to in clause 2.1 of the said Regulations other than Safdarjung Hospital and AIIMS. In the light of the admitted position that the training of the selected W.P.(C) 11809 2021 candidates is commencing on 05.12.2021 the respondent is directed to ensure that the petitioner’s Appellate Medical Examination for determining the percentage of his physical disability is conducted tomorrow itself i.e. on 04.12.2021. However in case for any unavoidable reason if the Appellate Medical Examination of the petitioner cannot be conducted tomorrow the same will be conducted as expeditiously as possible and in case he is found eligible to be appointed he will be allowed to join the training forthwith. The writ petition along with the pending applications is accordingly disposed of in the aforesaid terms. REKHA PALLI) DECEMBER 03 2021 W.P.(C) 11809 2021

Panchayati divorce or marriage does not subsist in Law: Punjab & Haryana High Court

Panchayati Divorce or Marriage is illegal and would be against the provisions of the Hindu Marriage Act, 1955 which provides for the conditions of marriage and for divorce. Punjab & Haryana High Court gave the judgment in the case of Nishant Singh & others vs. State of Punjab [CRWP No.763 of 2021] by stating the above reasons. The decision was given by the single bench of Hon’ble Justice Alka Sarin. In the above-cited case, a criminal writ petition was filed by the petitioners under Article 226 of the Constitution for issuance of a writ in the nature of mandamus directing the respondents to safeguard the lives of the petitioners by providing police help to the petitioners and further directing the respondents not to interfere with the life and liberty of the petitioners. According to the facts, petitioner no.1 had got married to Mandeep kaur but took panchayati divorce from her. Petitioner no.2 got divorced from her previous husband Harjinder Singh u/s 13 B of the Hindu Marriage Act, 1955. Since, both the petitioners were major; they decided to marry each other. But the Petitioner no.2’s family was against their marriage & relationship. Petitioner contended that they were apprehending danger to their life and property. That’s why; writ petition was filed in the court for police protection. In the High Court, the bench observed that the petitioner’s counsel was relying upon the panchayati divorce of the petitioners which had no recognition in the eyes of law. There was no decree of dissolution of marriage of petitioner no.1 by a Court of competent jurisdiction and his first marriage still subsisted in the eyes of law. Since both the petitioners had got married to each other, it was considered a void marriage because petitioner no.1 didn’t obtain a valid and legal divorce from his first wife. The petitioner’s counsel argued that both of them were uneducated and weren’t aware of the laws subsiding for the procedure of divorce. But the court contended that ignorance of the law is no excuse, not being aware of the law cannot be a valid defence. It was observed that in view of Section 4 of the Hindu Marriage Act,1955, all customs and usages ceased to have an effect, the alleged marriage itself between petitioner No.1 and petitioner No.2 would be illegal and against the provisions of the Hindu Marriage Act, 1955. The High court stated that “Article 21 of the Constitution of India provides that no person shall be deprived of his life and liberty except in accordance with the law. The petitioners have approached this Court for protection of their life and liberty to live as a couple which cannot be considered in the facts and circumstances of the present case. However, as an individual either of the petitioners, if they apprehend any threat to their life or liberty, would be entitled to approach the Police for redressal of their apprehensions regarding threats to their life and liberty”.

on 06 02 110IN THE HIGH COURT OF PUNJAB AND HARYANA ATCHANDIGARHCRWP No.7621DATE OF DECISION: 27.01.2021Nishan Singh and another…..PetitionersversusState of Punjab and others .....RespondentsCORAM: HON BLE MRS. JUSTICEALKA SARINPresent:Mr. Sandeep Arora Advocate for the petitioners..ALKA SARIN J.(Oral):Heard through video conferencing.This is a Criminal Writ Petition under Article 226 of theConstitution of India for issuance of a writ in the nature of mandamusdirecting respondent Nos.2 to 4 to safeguard the lives of the petitioners byproviding police help to the petitioners and further directing the respondentNos.3 to 6 not to interfere with the life and liberty of the petitioners.The facts as set out in the petition are that the petitioners areboth major. The date of birth of petitioner No.1 is 22.01.1992 as per hisAadhar Cardand that of petitioner No.2 is 30.07.1985 asper her Aadhar Cardpassed by theDistrict Judge Kapurthala.Learned counsel for the petitioners would contend that thepetitioners are apprehendingdanger to their life and liberty. On a query putto learned counsel for the petitioners as to the marital status of petitionerNo.1 Nishan Singh it has been stated that Annexure P 6 is an affidavitdated 19.06.2017 of the first wife of Nishan Singh wherein she has statedthat she and Nishan Singh had got a Panchayati divorce. Strangely thelearned counsel is relying upon a Panchayati divorce which has norecognition in the eyes of law. There is no decree of dissolution of marriageof petitioner No.1 by a Court of competent jurisdiction and hisfirstmarriage subsists in the eyes of law.The learned counsel has also not beenable to show as to how this Court can provide protection to the petitionersas a couple when petitioner No.1 has not legally divorcedhis earlierspouse. The petitioner Nos.1 and 2 are alleged to have got marriedwithoutpetitioner No.1 obtaining a legally validdivorce from his first wife.TheHindu Marriage Act was enacted in the year 1955. It isan Act to amend and codify the law relating to marriages among Hindus.TheHindu Marriage Act 1955 is a complete Code and provides for theconditions of marriage as well as the procedure for divorce. After theenactment of theHindu Marriage Act 1955 marriages and divorce qua on 06 02 CRWP No.7621 3 Hindus is governed by the procedure as set out in the Hindu Marriage Act 1955. Section 4 of the said Act reads as under :“4.Overriding effect of Act Save as otherwise expresslyprovided in this Actany other law in force immediately before thecommencement of this Act shall cease to have effect inso far as it is inconsistent with any of the provisionscontained in this Act.”In view of Section 4 of the Hindu Marriage Act 1955 allcustoms and usages ceased to have effect.The contention of the learnedcounsel that petitioner No.1 had sought and gota Panchayati divorce isthusan argument which cannot be accepted. In fact the alleged marriageitself between petitioner No.1 and petitioner No.2would beillegal andagainst the provisions of theHindu Marriage Act 1955 inasmuch asthismarriage has been contracted without the petitioner No.1 being legallydivorced. An argument has been raised by the learned counsel for thepetitioners that the petitioners are uneducated people and hence are notaware of the niceties of the law. However with the petition itself thejudgment and decree passed under Section 13 B of theHindu MarriageAct 1955 in the case of petitioner No.2 has been attached which clearly on 06 02 CRWP No.7621 4 goes to show that the petitioners are aware of the law. Even otherwise notbeing aware of the law cannot be a valid defence.Article 21 of the Constitution of India provides that no personshall be deprived of his life and liberty except in accordance with law. Thepetitioners have approached this Court for protection of their life andliberty to live as a couple which cannot be considered in the facts andcircumstances of the present case. However as an individual either of thepetitioners if they apprehend any threat to their life or liberty would beentitled toapproach the Police for redressal of their apprehensionsregarding threats to their life and liberty.In view thereof the present petition is held to be notmaintainable at the behest of the petitioners who have got married withoutpetitioner No.1 being legally and validly divorced. As stated above thepetitioners as individuals would always be at liberty to approach theconcerned Senior Superintendent of Police for redressal of theirapprehensions regarding threats to their life and liberty. Needless tomention in the event of such a representation being made by either of thepetitioners’ in their individual capacity the concerned officer(s) shallconsider the same in accordance with law.Disposed off accordingly. (ALKA SARIN)JUDGE27.01.2021parkashNOTE: Whether speaking non speaking: Speaking Whether reportable: YES NO

Financial stringency is not a ground to deprive the daily wagers of their right for regularization: The Supreme Court of India

This Court approved the proposed scheme of the State of Gujarat and directed regularization of all those daily wagers who were eligible in accordance with the scheme phase-wise. The right to be regularized in accordance with the scheme continues till all the eligible daily-wagers are absorbed. Similar footsteps were followed by the Supreme Court in the case of Vice Chancellor Anand Agriculture University v. Kanubhai Nanubhai Vaghela and Anr. [Civil Appeal No. 4444 of 2021] which was adjudicated upon by a single judge bench comprising Justice L. Nageswara Rao on 26 July 2021. The facts of the case are as follows. The appellant university engaged daily wagers at different agricultural research centers who are skilled, semi- skilled, unskilled and field labourers. The daily-wage workers have been working as plumbers, carpenters, sweepers, pump operators, helpers, masons etc. An industrial dispute was raised by the daily wagers seeking regularization of their services. The Industrial Tribunal, Rajkot directed the appellant to regularize the services of all the daily-rated labourers who have completed 10 years of service as on 01.01.1993 with pay and allowances along with other benefits of the permanent Class IV employees. The writ petition filed by the appellant against the judgment of the industrial tribunal was partly allowed by the High Court. The judgment of the industrial tribunal was set aside and the appellant was directed to make payment to the workmen at the minimum of the pay scale and to frame a scheme for regularization of such daily-rated labourers. The Letter Patent Appeal filed by the management was dismissed. During the pendency of the appeal filed against the judgment of the High Court by the appellant, a scheme for regularization of daily-rated labourers of Gujarat Agricultural University was framed. This Court observed that it would not be appropriate to disqualify the daily wagers on the ground that they did not fulfil the prescribed eligibility criteria on the date when they were engaged initially as daily wagers. While considering the point related to the absorption of all the daily wagers at one point of time or in a phased manner, this Court observed that regularization can be made phase wise.

Non Reportable IN THE CIVIL APPELLATE JURISDICTION Civil Appeal No. 4443 of 2021 Arising out of SLPNo.12171 of 2019) Vice Chancellor Anand Agriculture University Kanubhai Nanubhai Vaghela and Anr …. RespondentNo. 114221 @ Diary No.3021 of 2019) Civil Appeal No. 4445 of 2021 of 2019) SLPNo.15957 JUDGMENT L. NAGESWARA RAO J The point that arises for consideration in these appeals is whether the daily wagers respondents are entitled for regularization of their services. 1 | P a g e The appellant university engaged daily wagers at different agricultural research centers who are skilled semi skilled unskilled and field labourers. The daily wage workers have been working as plumbers carpenters sweepers pump operators helpers masons etc. An industrial dispute was raised by the daily wagers seeking regularization of their services. The Industrial Tribunal Rajkot directed the appellant to regularize the services of all the daily rated labourers who have completed 10 years of service as on 01.01.1993 with pay and allowances along with other benefits of the permanent Class IV employees. The writ petition filed by the appellant against the judgment of the industrial tribunal was partly allowed by the High Court. The judgment of the industrial tribunal was set aside and the appellant was directed to make payment to the workmen at the minimum of the pay scale and to frame a scheme for regularization of such daily rated labourers. The Letter Patent Appeal filed by the management was dismissed During the pendency of the appeal filed against the judgment of the High Court by the appellant a scheme for regularization of daily rated labourers of Gujarat Agricultural University was framed. 2 | P a g e According to the scheme all daily wagers who have completed 10 years or more of continuous service with a minimum of 240 days in each calendar year as on 31.12.1999 shall be regularized as regular employees with effect from 01.01.2000 and shall be placed in the time scale of pay applicable to the corresponding lowest grade in the university subject to certain terms and conditions. One of the conditions is that the daily rated wagers shall be eligible and must possess the prescribed qualification for the posts at the time of their appointment on daily rated basis. It was proposed in the scheme that the regularization will be against the posts vacancies of the relevant categories. The daily wage employees shall be regularized in a phased manner to the extent of available regular sanctioned posts vacancies on the date of regularization and on the basis of seniority cum suitability including physical fitness Such of those daily wagers who have completed 10 years of continuous service with a minimum of 240 days in each calendar year as on 31.12.1999 but could not be regularized shall be treated as monthly rated employees w.e.f 01.01.2000 in the fixed pay without allowances. 3 | P a g e The appeal filed by the university against the judgment of the High Court was disposed of by a judgment dated 18.01.2001 in Gujarat Agricultural University vs Rathod Labhu Bechar & Ors.1 It was argued on behalf of the appellant therein that it would not be possible for the university to grant permanency to all its employees working as daily rated workers who have completed 10 years of service as on 01.01.1993. Therefore the scheme proposed granting permanent status to all such employees who have completed 10 years or more of continuous service with a minimum of 240 days as on 31.12.1999. It was further contended by the university that daily wagers are not entitled to get the minimum wages of Class IV employees of the State. An argument was advanced in the aforementioned appeal before this Court that all the daily wagers cannot be regularized or minimum pay scale cannot be given in view of the financial constraints. It was brought to the notice of this Court that there were 5100 daily rated labourers. This Court rejected the said submission and observed that financial stringency is not a ground to deprive the daily wagers of their right for regularization in accordance to the scheme 13 SCC 574 4 | P a g e After considering the proposed scheme this Court accepted the submission on behalf of the daily wagers that prescription of certain qualifications to be fulfilled at the time of appointment as a condition for regularization was not justified. This Court observed that it would not be appropriate to disqualify the daily wagers on the ground that they did not fulfill the prescribed eligibility criteria on the date when they were engaged initially as daily wagers. While considering the point related to the absorption of all the daily wagers at one point of time or in a phased manner this Court observed that regularization can be made phase wise It was made clear that posts should be created to absorb maximum number of workers who have completed 10 years as on 31.12.2000. The scheme proposed by the university was approved by this Court subject to certain modifications suggested. The additional regular posts required to be created by the university was directed to be done expeditiously. The first phase of absorption was directed to be completed within a period of 3 months and the scheme to be implemented expeditiously. During the course of hearing we were informed that the State Government passed a resolution on 01.04.2002 5 | P a g e creating 890 posts for absorption of daily wagers in the university. It has also been brought to the notice of this Court that the State Government dissolved the erstwhile Gujarat Agricultural University in 2004 and constituted four new agricultural universities. The petitioner is one of the four agricultural universities. There are 740 daily wagers working in the university The respondents daily wagers in these appeals filed writ petitions in the High Court of Gujarat seeking regularization in accordance with the scheme floated by the State of Gujarat and approved by this Court. The contentions of the petitioners in the writ petitions was that they were working in Class IV posts and they were eligible to be absorbed in accordance with the scheme. Though a number of colleagues of the respondents daily wagers were given the benefit of regularization of their services they were denied 9. Writ petitions filed by the daily wagers were allowed by a common judgment of the High Court of Gujarat on 13.03.2018. The appellant university was directed to treat the respondents as permanent employees from the date they have completed 10 years of service as daily wagers. The 6 | P a g e appeal filed by the appellant was dismissed by the Division Bench of the High Court of Gujarat affirming the direction of the learned single judge to regularize the services of 10. At the time of issuance of notice we were informed by the learned senior counsel appearing for the appellant that the benefits given to the respondents by the judgment of the High Court will not be withdrawn. We make it clear that the regularization of the services of respondents shall not be 11. We have heard Mr. P.S. Patwalia learned senior counsel for the university and Mr. Nachiketa Joshi learned counsel for the respondents. The main contention of the university is that after the judgment of this Court in Secretary State of Karnataka and Ors. vs. Umadevi and Ors.2 the respondents are not entitled for regularization as there are no sanctioned posts available. Another submission made on behalf of the appellant is that the judgment of this Court dated 18.01.2001 in Gujarat Agricultural University supra) does not survive after the judgment of this Court in Uma Devi. It is no doubt true that in Umadevi’s case it has been held that regularization as a one time measure can 24 SCC 1 7 | P a g e only be in respect of those who were irregularly appointed and have worked for 10 years or more in duly sanctioned posts. However in the instant case the respondents are covered by the judgment of this Court in Gujarat Agricultural University inter partes has become final and is binding on the university. Even according to Para 54 of Uma Devi’s case any judgment which is contrary to the principles settled in Umadevi shall be denuded of status as precedent. This observation at Para 54 in Umadevi’s case does not absolve 8 | P a g e the university of its duty to comply with the directions of this Court in Gujarat Agricultural Universityat the first stage. There is no ambiguity in the directions given by this Court in Gujarat Agricultural University that the obligation on the part of the university to implement the scheme by regularizing all the eligible daily wagers continued. 13. By an order dated 17.10.2011 persons similarly situated to the respondents were absorbed by being given the benefit of regularization. The Division Bench of the High Court has taken note of the discriminatory approach of the university in conferring the benefit of regularization to some and not to all those daily wagers who are eligible. There is 9 | P a g e no error in the Judgment of the High Court which warrants interference by this Court. Eligible daily wagers in accordance with the scheme have been eagerly awaiting regularization as per the judgment of this Court in Gujarat Agricultural University’s case (supra). The right of the respondents for regularization has been correctly recognized 14. For the aforementioned reasons the appeals are by the High Court .....................................J [ L. NAGESWARA RAO .....................................J [ ANIRUDDHA BOSE New Delhi July 26 2021. 10 | P a g e

The Court can interfere with the change in policy on being satisfied that it is irrational or perverse in light of the Wednesbury principle: High Court of Delhi

There cannot be any dispute that a policy decision can be reviewed from time to time. The impugned decision of the respondents is to recall its earlier decision to provide re-employment. It is implied in such a decision that retired Teachers / Vice Principals / Principals shall give way to regularly appointed Teachers / Vice Principals / Principals. The scope of judicial review with regard to change in policy is well settled. This was held in VICTORIA GIRLS SR. SEC. SCHOOL, DELHI v. DIRECTOR OF EDUCATION. [W.P.(C) 6712/2020] in the High Court of Delhi by a single bench consisting of JUSTICE V. KAMESWAR RAO. Facts are that the petitioner is a school established in the year 1868 at Delhi for the education of Christian minorities and it was affiliated to CBSE in 1966. The petitioner Nos.2, 3, and 4 are teachers working with the petitioner who have been re-employed after attaining the age the superannuation in terms of Rule 110 of the Delhi School Education Rules, 1973. The respondents have discontinued the provision for re-employment of Teachers / Vice Principals / Principals after superannuation writ has been filed against the same. The counsel for the petitioner submitted that orders issued by the Office of Deputy Director Education whereby the requests for re-employment of the petitioners were approved by the Dy. Director. That the stand of the respondents that the incumbents have no right to continue once policy granting re-employment is revoked is nothing but arbitrary and violative of Article 14. The counsel for the respondent submitted that the present petition is not maintainable. The respondent has taken a policy decision to do away with the reemployment with the retired teachers in government and aided schools vide the impugned order. The court made reference to the judgement of Apex court in TMA Pai Foundation v. State of Karnataka., wherein it was observed that “it is permissible for the State and its educational authorities to prescribe qualifications of a teacher but once the teachers possessing requisite qualification were selected by the minorities for their educational institutions, the State would have no right to veto the selection of teachers”. The court also made reference to Apex court decision in the case of  Purushottam v. Chairman, M.S.E.B. and Anr., wherein it is stated that “It is settled law that appointment should be made strictly in accordance with statutory provisions and a candidate who is entitled for appointment should not be denied the same on any pretext whatsoever as usurpation of the post by somebody else in any circumstance is not possible”.

IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on: May 31 2021 W.P.(C) 6712 2020 CM APPLs. 23321 2020 34429 2020 7444 2021 7445 2021 VICTORIA GIRLS SR. SEC. SCHOOL DELHI ..... Petitioner Through: Mr. Romy Chacko and Ms. Shakthi Chand Jaidwal Advs. DIRECTOR OF EDUCATION Through: Mrs. Avnish Ahlawat SC for GNCTD Respondent Service) with Mr. Nitesh Kumar Singh Adv. for DoE CORAM: HON BLE MR. JUSTICE V. KAMESWAR RAO JUDGMENT V. KAMESWAR RAO J CM. Nos. 7444 2021 & 7445 2021 two applications have been filed by respondents seeking condonation of 20 days delay in filing the counter affidavit to the petition. For the reasons stated in the application delay of 20 days is condoned. Counter affidavit is taken on record. Applications stand disposed of. The present petition has been filed by the petitioners with W.P.(C) 6712 2020 the following prayers: the above mentioned “In view of facts and circumstances it is therefore prayed that this Hon ble Court may be pleased to: W.P.(C) 6712 2020 a) Issue a writ of certiorari or any other writ direction or order quashing the impugned order dated 10.09.2020 issued by Respondent No.1 as ultra vires and unconstitutional. b) Allow the Petitioners No. 2 to 4 to continue in reemployment till they attain the age of 62 years as approved by the Respondent No. 1. c) Pass any other order(s) in view of aforesaid facts and circumstances to meet the end of justice.” In substance the challenge in this writ petition is to the order dated September 10 2020 bearing No PS DE 2020 „impugned order‟ for short) issued by the Office of Director of Education Government of NCT of Delhi respondent No.1. The impugned order reads as under: “OFFICE OF DIRECTOR OF EUDCATION GOVT. OF NCT OF DELHI OLD SECRETARIAT DELHI 110054 No Ps DE 2020 ORDER Dated: 10.09.2020 SUBJECT: DISCONTINUING THE PROVISION OF RE EMPLOYMENT IN R O TEACHERS VICE the system for Re employment of Teachers was notified and later extended to Vice Principals and Principals in view of the large number of vacancies which existed at that time in the Directorate of Education. And Whereas the Department has recently been able to fill a large number of vacant posts through Direct Recruitments. As such the system of Re Employment of Teachers Vice Principals Principals is no longer W.P.(C) 6712 2020 Now therefore the provision of Re Employment of Teachers Vice Principals Principals is discontinued with immediate effect. Accordingly all types of Re employment granted for the session 2020 21 in govt. and govt. aided schools shall cease to be in force with immediate effect and no re employment shall be granted to the Teachers Vice Principals principals in govt. and govt. aided schools henceforth. UDIT PRAKASH RAI DIRECTORxxx xxxx” The petitioner No.1 herein is a senior secondary school established in the year 1868 at Delhi for the education of Christian minorities and it was affiliated to Central Board of Secondary Education in 1966. The petitioner No.1 school was granted minority status on September 03 2008. The petitioner Nos.2 3 and 4 are teachers working with the petitioner No.1 school who have been re employed after attaining the age the superannuation in terms of Rule 110 of the Delhi School Education Rules 1973Except where an existing employee is entitled to have a higher age of retirement every employee of a recognised private school whether aided or not shall hold office until he attains the age of 58 years. Provided that the managing committee may grant extension to a teacher for a period not exceeding two years in the aggregate if in the opinion of the managing committee such teacher is fit tor such extension and has no mortal or W.P.(C) 6712 2020 physical incapacity which would disentitle him to get such Provided further that no such extension shall be granted in the case of a teacher of an aided school except with the previous approval of the Director: 2) Notwithstanding anything contained in sub rule every teacher laboratory assistant Librarian Principal or Vice Principal employed in such school shall continue to hold office until he attains the age of 60 years: xxx ” It is the case of the petitioners and as contended by Mr. Romy Chacko learned counsel for the petitioners that vide the impugned order the respondents have discontinued the provision for re employment of Teachers Vice Principals Principals after superannuation and made applicable the order to those who have already been granted re employment6712 2020 the re employment of the said petitioners was not subject to any terms and conditions that their services would be dispensed with to accommodate direct recruits or eligible candidates. According to Mr. Chacko the petitioner Nos.2 to 4 have joined duties after superannuation in terms of re employment and are working since then. Regarding their present status of re employment Mr. Chacko has drawn my attention to a table as appended below: a) Mrs. J Solomon Retirement b) Mrs. PGTc) Mrs. G Re emp Approved by Resp. No.1 Time still left for Re emp About 11 months 01 years 02 months 01 year 06 months Mr. Chacko has also drawn my attention to orders issued by the Office of Deputy Director Education dated July 30 2019 November 01 2019 and March 20 2020 whereby the requests for re employment of the petitioner Nos.2 to 4 were approved by the Dy. Director. It is submitted by him that the stand of the respondents that the incumbents have no right to continue once policy granting re employment is revoked is nothing but arbitrary and violative of Article 14. He also stated that petitioner Nos.2 4 can be terminated from service only in accordance with the provisions of Delhi School Education Act 1973(„Act‟ for short) and the DSE Rules framed thereunder in the same manner in which services of other regular employees can be terminated. Hence the impugned order to the extent it does away with the service of existing employees who have already been re employed is also arbitrary and violative of Article W.P.(C) 6712 2020 14 of the Constitution. Further it is submitted by him that the management petitioner No.1 having chosen to re employ petitioner Nos.2 to 4 for two years after obtaining approval from competent authority the impugned order issued thereafter interferes with the right to administer vested in the management of petitioner No.1 in terms of Article 30 of the Constitution. Mr. Chacko submitted that Rule 110 of the DSE Rules permits continuance of services of the petitioner Nos.2 to 4 till the age of 62. Therefore their re employment by the management in accordance with the procedure prescribed clothes them with the vested right to continue till the age of 62. He anchored his submission on the Apex Court judgment in Andhra Pradesh Diary Development Corporation Confederation v. Narasimha Reddy and Ors. 2011SCC 286 wherein it was inter alia held by the Court that any subordinate legislation which takes away existing benefits with retrospective effect is violative of Article 14 and 16 of the Constitution. The Court also went to hold what constitutes a vested right. 10. He also submitted that the impugned order to the extent it terminates the services of the petitioners without notice and without granting a chance for the incumbents to be heard is further violative of principles of natural justice. 6 SCC 195). It is submitted by Mr. Chacko that it is a settled law that retrospective effect cannot be given to a subordinate legislation W.P.(C) 6712 2020 unless the statute confers power on the rule making authority to enact any rule with retrospective effect 2 SCC 100). On the impugned order it is his stand that Section 29 of the Act does not confer any such power on the respondent No.1 to grant retrospective effect to the impugned order and to that extent the same is void ab initio. That apart Mr. Chacko submitted that in terms of the decision of the Supreme Court in TMA Pai Foundation v. State of Karnataka 8 SCC 481 it is permissible for the State and its educational authorities to prescribe qualifications of a teacher but once the teachers possessing requisite qualification were selected by the minorities for their educational institutions the State would have no right to veto the selection of teachers It is submitted by him that the employment in the minority educational institution is absolute prerogative of the management and the government cannot induct anyone in such an institution. More so the re employment of the petitioner Nos.2 to 4 granted by the management cannot be interfered with by the Government in the context of filling up several vacant posts by it which is in the realm of public employment not applicable to minority institution. He supported his contention by relying upon Sindhi Education Society and Anr.wherein the Supreme Court while interpreting Rule 64(1)b of the DSE Rules held that roster wise reservation can be enforced against general or majority category of government aided schools but not against minority schools. It was also inter alia held that service in a W.P.(C) 6712 2020 minority institution is not a public employment. Reliance is also placed on Secretary Malankara Syprian Catholic College v. T. Jose and Ors. 1 SCC 386 wherein the Supreme Court inter alia held that minority management is free to choose its staff based on their outlook and philosophy and the career advancement prospects of the existing staff and the members of the community has to yield to the management‟s freedom of choice under Article 30. That apart it is stated vide an Additional Affidavit filed by petitioner No.1 and submitted by Mr. Chacko that the petitioner No.1 sought clearance for filling up 39 vacancies on April 20 2017 and respondent No.1 granted clearance only after two years on May 20 2019. Subsequent thereto eight vacancies have arisen in the petitioner No.1 school and therefore the stand of the respondents that the petitioner No.1 school is not filling up vacancies or that all vacancies are filled up is bellied. According to Mr. Chacko the impugned order provides for ceasing of reemployment granted for 2020 21 with immediate effect and the effect that follows requires fresh recruitment which is a tedious and time consuming procedure. This will also cause huge hardship and inconvenience to students as petitioner Nos.2 to 4 are currently taking classes in the petitioner No.1 school. On the other hand it is the case of the respondent and contended by Ms. Avnish Ahlawat learned Standing Counsel appearing for the Directorate of Education that the present petition is not maintainable. According to her the petitioner No.1 School Management in connivance with the Teachers have W.P.(C) 6712 2020 filed the present writ petition on behalf of the teachers and they have no right to continue as re employed Teachers. The petitioner No.1 school on the one hand has not taken any steps to fill up the posts lying vacant through promotion or otherwise and is illegally supporting the teachers to continue in reemployment denying the chance for the other eligible candidates. It is submitted by Ms. Ahlawat the retirement age of teachers as per the DSE Rules is 60 years. The intent of the scheme for re employment of Teachers Vice Principals Principals initially introduced in government schools and later in aided schools subject to managing committee justifying the need of reemployment was in view of large number of posts lying vacant with no recruitment. However currently in schools under the respondent No.1 substantial number of teachers on all posts have been appointed through DSSSB direct recruitment promotion UPSC selection. It is against this backdrop that the administration respondent No.1 has taken a policy decision to do away with the reemployment with the retired teachers in government and aided schools vide the impugned order. She also stated that here in petitioner No.1 school there are sufficient number of teachers and as such the „system of re employment of Teachers Vice Principals Principals is no longer required‟. It is stated by Ms. Ahlawat that the impugned order was initially challenged before the Central Administrative Tribunal Principal Bench New Delhi in OA No.1436 2020 which OA stands dismissed vide judgment dated W.P.(C) 6712 2020 October 07 2020. An appeal against the same being W.P.(C) 9085 2020 is pending before the Division Bench. However I may note here that on this Mr. Chacko has taken a plea and in fact he filed an application being C.M.No. 34429 2020 wherein by relying upon the judgment of CAT in O.A No. 1328 2020 it was stated that the petitioner Nos.2 4 in the instant case stand on a different footing from the petitioners in W. P.No. 9085 2020. He stated that petitioners in W.P.(C) No. 9085 2020 were government teachers who were working in government schools and that they are not governed by Rule 110 of DSE Rules. 19. Ms. Ahlawat on the aspect of vested accrued right of the petitioner Nos.2 to 4 stated that they did have existing right till the date of withdrawal of policy i.e. September 10 2020 and such right cannot be treated as “vested right” or immune from legislative intervention or interference. In this regard she has relied upon the Apex Court judgment in Shri Bakul Oil Industries v. State of Gujarat 1987 SCC 31 wherein the Court repelled the contention that tax exemption granted by the State Government gives rise to a vested right. Further it was inter alia held that such exemption was a kind of concession and a concession can be withdrawn at any time and “no time limit can be insisted upon before concession is withdrawn”. Further reliance has been placed by Ms. Ahlawat on the Supreme Court judgment in Dr. S.K. Kacker v. AIIMS & Ors. 1996 SCC 734 wherein it was inter alia held that W.P.(C) 6712 2020 Administrative Resolution cannot override statutory Resolution nor can they have any legal efficiency. Policy decision in any case does not give any vested right. On the reliance placed by the petitioners on the Judgement in Andhra Pradesh Diary Development Corporation Confederationshe stated that the same is not applicable as the expression "vested right" has been used in a general sense and none of those decisions really considered whether doctrine of vested right can be applied against legislative enactment or administrative policy. It is also submitted by Ms. Ahlawat by relying upon Shree Sidhabali Steels Ltd. v. State of U.P. 3 SCC 193 that where public interest warrants principles of promissory estoppel cannot be invoked. Government can change policy in public interest and doctrine of promissory estoppel cannot be invoked for enforcement of a promise made contrary to law because none can act against notifications which are in the nature of legislation. Reliance is also placed on the Apex Court judgment in Kothari Industrial Corporation Limited v. Tamil Nadu Electricity Board & Anr. 4 SCC 134 that it is for the State to determine what should be the policy for grant refusal of concessional power at different points of time and not for the Having heard the learned counsel for the parties and perused the record the issue which arises for consideration is whether the order dated September 10 2020 issued by the respondent Directorate is ultra vires and unconstitutional and the W.P.(C) 6712 2020 petitioner Nos.2 to 4 need to be allowed to continue on re employment till they attain the age of 62 years. Vide the impugned order the respondents have decided to discontinue the provision of re employment of Teachers Vice Principals Principals with immediate effect. Further the re employment granted for the session 2020 21 in government and government aided schools shall cease to be in force with immediate effect. The provision for re employment was introduced by the Directorate of Education by issuing notifications dated January 29 2007 and February 28 2007 whereby it was decided to allow re employment of all retiring Teachers of the Directorate up to PGT level till they attain the age of 62 years subject to fitness and vigilance clearance. There is no dispute that this scheme was made applicable to the Teachers in the aided schools as well. The petitioner No.1 is an aided school and the same was made applicable to petitioner No.1 school as well. I may clarify here Rule 110 of the DSE Rules recognises the concept of re employment but that is only when Teachers Vice Principals Principals attain the age of superannuation on or after first day of November of any year they shall be re employed upto 30th day of April of the year immediately following. The above notifications which contemplates re employment till 62 years is a departure from the provision of re employment stipulated in Rule 110 of DSE Rules. It can be said that the notifications have been issued in exercise of executive power by the Lieutenant Governor after a decision of the Cabinet. W.P.(C) 6712 2020 Having said that in the case in hand the petitioner Nos.2 to 4 who are working as Teachers Principal in petitioner No.1 school had retired on July 30 2019October 31 2019 and March 31 2020 respectively. But on their application for re employment the same was granted to them upon approval conveyed by the Directorate till they attain the age of 62 years. The details of their date of retirement and re employment is already reflected in para 6 above. 28. Mr. Chacko had made submissions with regard to the minority status of the petitioner No.1 school and privileges that are enjoyed. The submissions are the following the petitioner No.1 being a minority aided school cannot be roped in the impugned order inasmuch as the respondents nominee has no role in the selection and appointment of an employee in the minority educational institution the State cannot compel the minority institution to accept policy decision which will infringe the fundamental rights in view of the decision of the Supreme Court in TMA Paiit is permissible for the State and its educational authorities to prescribe qualifications of a teacher but once teacher possessing qualifications is selected by the minorities for their educational institution the State would have no right to veto the selection of teachers the re employment of petitioner Nos.2 to 4 granted by the petitioner No.1 cannot be interfered with by the Government in the context of filling up of several vacant posts by it which is in relation of public employment not applicable to W.P.(C) 6712 2020 minority institutions. The aforesaid submissions of Mr. Chacko have no applicability in the facts of this case. This I say so for two reasons in view of the judgment of the Supreme Court in TMA Paithe State can provide the conditions of service of teachers in aided minority schools the selection of petitioner Nos.2 to 4 for employment re employment had already taken place based on the notifications issued by the Directorate upon approval by the Directorate which process has never been objected to by the petitioner No.1 School. It is the conceded case of the petitioners and also submitted by Mr. Chacko that the State is within its right to prescribe the service conditions in aided minority schools. So it follows Rule 110 of the DSE Rules which governs the age of superannuation in recognised private schools shall be applicable the petitioner No.1 School. The notifications for re employment after retirement were equally applicable to the petitioner No.1 School and also implemented. The re employment of petitioner Nos.2 to 4 being in terms of the decision of the Directorate its withdrawal vide the impugned order shall be equally binding. Mr. Chacko is not correct to contend that the impugned decision cannot be implemented against the minority institutions like the petitioner No.1 School as it infringes the fundamental right under Article 30 of the Constitution. If the plea is accepted it would be in violation of the Judgment of the Supreme Court in TMA Paiwhich clearly held that the Regulations framed by the State governing W.P.(C) 6712 2020 service conditions for teaching and other staff shall prevail. This power of the State to frame regulations include the power to stipulate the provision of re employment and withdrawing the same. It is also not the case of the petitioner No.1 that the Directorate had raised any objection with regard to the appointment re employment of petitioner Nos.2 to 4 both on eligibility and suitability. The rights of petitioner No. 1 as an aided minority institution have not been interfered with nor the Directorate has vetoed the appointments re employment of petitioner Nos. 2 to 4. The petitioner No.1 is required to follow the decision to withdraw the provision of re employment though an aided minority institution. It cannot state that it will resort to re employment and shall not make appointments Recruitment Rules. The submissions of Mr. Chacko in that regard are liable to be rejected. In support of his submission Mr. Chacko had relied upon the judgment of the Supreme Court in the case of Sindhi Education Society and Anr.(b) of DSE Rules and the question in Sindhi Education Society was whether Rule 64of DSE Rules violate the rights of aided minority institution. Chapter IV of the Act or Chapter VIII of DSE Rules6712 2020 other than unaided minority schools) never fell for consideration in that case. Mr. Chacko had also relied upon the judgment in the case of Secretary Malankara Syprian Catholic Collegewhich is also distinguishable on similar reasoning. The other pleas of Mr. Chacko are that the impugned order sought to be implemented against the petitioner Nos.2 to 4 who have already been granted re employment that the order states that large number of vacant posts have been filled up through direct recruitment and as such re employment is no longer required but the order does not state whether vacancy in aided minority schools have been filled up the re employment given to petitioner Nos.2 to 4 was without any condition that their services shall be dispensed with on the appointment being made through direct recruitment therefore re employment cannot be curtailed the re employment having been granted till 62 years in favour of the petitioners a vested right has accrued to continue till that age retrospective effect cannot be given to a subordinate legislation unless the statute confers powers on the rule making authority to enact a rule in that manner the petitioner had sought clearance for filling up of 39 vacancies on April 20 2017 and the respondent No.1 granted clearance only after two years on May 20 2019 and subsequent thereto 8 vacancies have arisen and hence the stand of the Directorate that the School is not filling up the vacancies is To consider the above submissions of Mr.Chacko it is necessary to reproduce the relevant features of the impugned W.P.(C) 6712 2020 The department has been able to fill a large number of vacant posts through direct recruitment ii) The provisions of re employment of Teachers Vice Principals Principals is discontinued with immediate effect iii) All types of re employment granted for session 2020 21 in government and government aided schools shall cease to be in force with immediate effect. The decision of the Directorate to provide provision for re employment is outside the DSE Rules. It is a policy decision taken in the larger interest of the students that their studies are not affected for want of regularly appointed Teachers Vice Principals Principals. There cannot be any dispute that a policy decision can be reviewed from time to time. The impugned decision of the respondents is to recall its earlier decision to provide re employment. It is implied in such a decision that retired Teachers Vice Principals Principals shall give way to regularly appointed Teachers Vice Principals Principals. The scope of judicial review with regard to change in policy is well settled. The Court can interfere with the change in policy on being satisfied that it is irrational or perverse keeping in view the Wednesbury principle. 4 SCC 727). The Wednesbury principle postulates the Courts while W.P.(C) 6712 2020 considering whether the authority having so unlimited power has acted unreasonably. The Court is entitled to investigate the action of the authority with a view to see if it has taken into account any matters that ought not to be disregarded. I have already spelt out the reasons for the respondents to withdraw the provision of re employment in government and government aided schools. That is they have filled up the posts of Teachers Vice Principals Principals through direct recruitment and promotion and there is no necessity to continue the retired Teachers on re employment. In effect the respondents have decided to resort to the recruitment rules for making appointment which were not invoked implemented for so many years. It is settled law that appointment should be made strictly in accordance with statutory provisions and a candidate who is entitled for appointment should not be denied the same on any pretext whatsoever as usurpation of the post by somebody else in any circumstance is not possible. 6 SCC 49). There is justifiable reason for the respondents to withdraw its earlier decision to grant re employment to retired teachers. The decision is not unreasonable I see no infirmity in the decision. The plea of Mr. Chacko was that re employment given to petitioner Nos.2 to 4 was unconditional till 62 years and a vested right has accrued to them to continue till that age. The said submission is unmerited for the reason that the respondents have appointed filled up the very posts on which the retirees were are working. In such a situation the continuation of retirees on re W.P.(C) 6712 2020 employment is not possible. Rather it would be against public interest to employ two persons on the same post burdening the exchequer. If the plea is accepted then the selection made through direct recruitment promotion cannot be given effect to till such time the period of re employment of the retired Teachers expires. It is in larger public interest that services of the re employed Teachers need to be dispensed with. This I say so a retired employee does not have any right to be re employed. Even if re employed it is for a fixed period and it is settled law that an appointment for a fixed period can be curtailed for good and valid reasons by following principles of natural justice. 2008SCC 1Corporation Limited and Ors. and connected matters 9 SCC 710 wherein in para 25 has held as under: “25. The principle of procedural expectation would apply to cases where a promise is made and is withdrawn without affording an opportunity to the person affected. The imminent requirement of fairness in administrative action is to give an opportunity to the person who is deprived of a past benefit. In our opinion there is an exception to the said rule. If an announcement is made by the Government of a policy conferring W.P.(C) 6712 2020 to such benefit on a large number of people but subsequently due to overriding public interest the that were announced earlier are withdrawn it is not expedient to provide individual innominate number of persons. In other words in such cases an opportunity to each individual to explain the circumstances of his case need not be given. In Union of India v. Hindustan Development Corpn.3 SCC 499] it was held that in cases involving an interest based on legitimate expectation the Court will not interfere on grounds of procedural fairness and natural justice if the deciding authority has been allotted a full range of choice and the decision is taken fairly and The reliance placed by Mr. Chacko on the Judgment of the Supreme Court in the case of Paradeep Phosphatesis misplaced. It is not applicable in the facts as the issue in that case was with regard to change in the retirement age of regular employees which is governed by service rules and certified standing orders. The Court by holding the same to be service conditions and also by referring to section 9A of the Industrial Disputes Act 1947 held the retirement age cannot be changed without hearing the employees. Whereas in the case at hand the petitioners 2 to 4 are not regular employees the re employment is not governed by Service Rules and Certified Standing Orders and it is not a service condition. The plea of Mr. Chacko that a subordinate legislation unless the statute confers power cannot be enacted with retrospective effect is not appealing as the provision of re W.P.(C) 6712 2020 employment was not introduced by way of amendment to the statute or the rules. It was a policy decision which has been withdrawn through executive order that too prospectively that is from the date the order is issued. The benefits earned during the re employment are not being taken away. The reliance on the Judgment of Tikamdas is misplaced. The same is not applicable in the facts. I am also of the view that even the principle of legitimate expectation shall not be applicable in view of the nature of appointment i.e. re employment for a fixed period and also for the reasons to revoke the policy of re employment as detailed above. During the course of his submissions Mr. Chacko would submit that pursuant to the communication dated April 20 2017 of the petitioner No.1 to the Directorate seeking its approval for filling up 37 vacant posts the same was received on May 20 2019 after a period of two years. Pursuant thereto after the approval of the advertisement and constitution of selection Committee 37 vacancies have been filled up in September 2019. The petitioner Nos.2 to 4 having superannuated between July 2019 to March 2020 i.e. after the approval was granted by the Directorate for filling up 37 vacant posts the petitioner No.1 School could not take necessary steps to fill up the subsequent vacancies due to lockdown arising from COVID 19. So no fresh appointment promotion has been made by the petitioner No.1 school on the posts on which the petitioner Nos. 2 to 4 are working. The petitioner Nos.2 to 4 should be allowed to continue in the larger interest of the students. W.P.(C) 6712 2020 I say nothing on the said submission. It is for the Directorate to consider the said aspect and convey to the school its decision preferably within four weeks from today. The impugned order dated September 10 2020 is intra vires and constitutional. The relief prayed for cannot be granted by this Court. The petition is dismissed with the observation above for compliance by the respondents. No cost. CM APPLs. 23321 2020 & 34429 2020 Dismissed as infructuous. MAY 31 2021 aky ak jg V. KAMESWAR RAO J W.P.(C) 6712 2020

FIR registered against respondents, are found to be baseless, as the petitioners have never come forward to join the inquiry.: High court of Punjab and Haryana

A petition was made in the form of a writ of mandamus under article 226,227 of the constitution of India, directing the official respondents to protect the life and liberty of the petitioners from respondents No.5 to 9. This judgment and final order were given in the high court of Punjab and Haryana at Chandigarh on the 14thof July 2021 by Hon’ble Mr. Justice Arvind Singh Sangwan in the case of Sangeetha Devi and others vs. State of Punjab and others CRWP-2763-2020. The proceedings of the court were held through a video conference. The following are the facts of the case, petitioners No.1,2,3 belong to the same family, where no.2 and no.3 are brothers and no.1 is the wife of petitioner no.2. according to the case, in a firm called M.K. traders the petitioner No.2 was employed as the commission agent for respondents No.5 and 6, who were the owners of the firm. He however left the job in 2019, respondents No.5 and 6 failed to pay the petitioner his due amount, and when he demanded the money, respondents No. 5,6,8 entered the house of petitioner no.2 forcibly beat him up. Further petitioner no.2 was illegally detained at the police station and for which under CRWP-788-2019 was filed for a writ in the nature of habeas corpus for releasing petitioner no.2 however after the investigation the petitioner was found to be involved in the case under section 107,511 Cr.P.C. The deputy commissioner of police, a detective in the city of Amritsar stated that an inquiry was conducted based on the orders which were passed in CRWP-788-2019 regarding the custody of the petitioner No.2 and it was also stated that FIR No. 240 under section 343 IPC was registered against the respondent No. 9 at the police station, at Amritsar city he was placed under suspension by the commissioner of police and they made the necessary inquiry, further it was stated that respondent No.9 has also filed for an affidavit before the court, but the petitioners have failed to join the inquiry despite the notices issued by the inquiry officer, it was stated that the respondent No.9 was arrested in the same FIR. Again, a notice was issued under section 160 Cr.P.C. to the petitioners and petitioner No. 3 was contacted on his phone but the petitioner still neglected and failed to join the inquiry.

on 15 07 In virtual CourtCRWP 2763 2020 1 IN THE HIGH COURT OF PUNJAB AND HARYANA ATCHANDIGARHCRWP 2763 2020 (O&M)Date of decision: 14.07.2021Sangeeta Devi and others... PetitionersVs.State of Punjab and others... RespondentsCORAM:HON BLE MR. JUSTICE ARVIND SINGH SANGWANPresent:None for the petitioners.Mr. Joginder Pal Ratra DAG Punjab.Mr. Chetan Bansal Advocatefor respondents No.5 & 6.Mr. Prateek Sodhi Advocatefor respondent No.9. ARVIND SINGH SANGWAN J. (ORAL)Prayer in this petition is for issuance of a writ of mandamusdirecting the official respondents to protect the lives and liberty of thepetitioners at the hands of respondents No.5 to 9.It is stated in the petition that petitioners No.2 & 3 are real brothersand petitioner No.1 wife of petitioner No.2. It is further stated that petitionerNo.2 was working in a firm namely M.K. Traders as commission agent forrespondents No.5 & 6 who are owners of the said firm and left the job inSeptember 2019. Some money of petitioner No.2 was due to be paid by on 15 07 In virtual CourtCRWP 2763 2020 2 respondents No.5 & 6 and in that regard when he demanded the money respondents No.5 & 6 along with respondent No.8 forcibly entered house ofpetitioner No.2 and gave him beatings. Thereafter petitioner No.2 was taken topolice station on 05.09.2019 and was kept in illegal detention for whichCRWP 788 2019 was filed praying for a writ in the nature of habeas corpus torelease petitioner No.2 in which a Warrant Officer was appointed and it wasfound that petitioner No.2 is involved in a case under Sections 107 511 Cr.P.C.Reply by way of affidavit of Deputy Commissioner of Police Detective Amritsar City is on record in which it is stated that in compliance ofthe orders dated 17.10.2019 and 25.11.2019 passed in aforesaid CRWP 788 2019 an inquiry was conducted regarding custody of petitioner No.2 and it wasstated that FIR No.240 dated 29.12.2019 under Section 342 IPC Police Station‘B’ Division Amritsar City was registered against respondent No.9 SILakhwinder Singh and he was placed under suspension by the Commissioner ofPolice Amritsar and departmental inquiry was entrusted to AssistantCommissioner of Police Special Crime Amritsar City. It is further stated thateven respondent No.9 has filed affidavit before this Court during pendency ofthe aforesaid CRWP 788 2019. It is also stated that the petitioners have notjoined the inquiry despite notices issued by the Inquiry Officer. It is next statedthat respondent No.9 SI Lakhwinder Singh was arrested in the aforesaid FIRand again notice under Section 160 Cr.P.C. was issued to the petitioners on08.01.2020 05.02.2020 and 22.02.2020. Petitioner No.3 was also contacted onhis mobile phone but the petitioners never joined the inquiry and not providedany evidence. It is further stated in the reply that allegations in the present on 15 07 In virtual CourtCRWP 2763 2020 3 petition that the official respondents are extending threat to the petitioners towithdraw the present petition or FIR registered against respondent No.9 arefound to be baseless as the petitioners have never come forward to join theinquiry.In view of the above no further action is called for in the presentpetition and the same is disposed of. [ ARVIND SINGH SANGWAN ]14.07.2021 JUDGEvishnuWhether speaking reasoned: Yes NoWhether Reportable: Yes No

Assistant Provident Fund Commissioner Versus Vijaya Bank And Ors

Corporate veil can be pierced by the authorities under a statute only where the statute itself permits lifting of corporate veil for realization of dues thereunder. The petition impugns the E-Auction Sale Notice dated 20th April, 2016 of the respondent no.1 Vijaya Bank (Bank), in pursuance to the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act, 2002, of the two properties at Noida of the respondent no.3 M/s. G.K. Products Pvt. Ltd. and respondent no.4 M/s. Well Computer Exim Pvt. Ltd. (Companies) who had stood as guarantors for the financial assistance granted by the respondent no.1 Bank to the respondent no.2 Creative Home Fashions Pvt. Ltd. (Company). The respondents no.5 to 9 are stated to be Directors in each of the respondents no.2 to 4 Companies.It is inter alia the claim of the petitioner Assistant Provident Fund Commissioner that the petitioner has a charge over the properties being auctioned on account of Provident Fund (PF) dues owed by the respondent no.2 Company. 5. The respondent no.1 Bank had attempted sale of the aforesaid properties as far back as in the year 2011 and which sale has been held up since then for the reason of the said objection of the petitioner. 6. Earlier, the petitioner passed orders dated 20th January, 2012 prohibiting the respondent no.1 Bank from auctioning the said properties, compelling the respondent no.1 Bank to file W.P.(C) No.1726/2012 in this Court impugning the said orders of the petitioner.The said writ petition remained pending in this Court till 30th July, 2014 when it was allowed, reasoning that the respondents no.3&4 Companies are separate juridical entities than the respondent no.2 Company which is stated to owe PF dues to the petitioner and that the assets of the respondents no.3&4 Companies cannot be proceeded against for recovery of PF dues of the respondent no.2 Company.The contention of the petitioner then also, of the respondents no.2 to 4 Companies being one and the same entity, was rejected and it was held that the three were separate Companies incorporated under the Companies Act, 1956 and that the petitioner had not commenced any proceeding where this issue had been adjudicated. It was further noted that no proceedings even had been initiated by the petitioner against the respondents no.3&4 Companies and the petitioner could not assume that the three were the same. It was further noted that under Section 8F(3) of the Employees‟ Provident Funds and Miscellaneous Provisions Act, 1952 (PF Act) though the petitioner was authorised to recover its dues from third parties which owed the said dues to the entity owing PF to the petitioner but the same had also not been done and it had not been established that the respondents no.3&4 Companies owed any money to the respondent no.2 Company which was stated to be owing PF dues to the petitioner.The petitioner preferred LPA No.23/2016 against the aforesaid judgment allowing the writ petition of the respondent no.1 Bank but which LPA was dismissed vide order dated 13th January, 2016 affirming the reasoning given by the learned Single Judge.Taking a cue from the aforesaid reasoning, the Recovery Officer of the petitioner claims to have issued a notice dated 22nd March, 2016 to the respondent no.1 Bank and to the respondents no.2 to 9 to show cause why the corporate veil should not be lifted and to have vide a very well written and reasoned order dated 17th May, 2016, after considering the reply of the respondent no.1 Bank to the show cause notice (none of the other notices responded) found a) all the three respondents 2 to 4 Companies to be operating and carrying on business from the said properties; b) the respondents no.5 to 9 to be Directors in all the three respondents no.2 to 4 Companies and thus having the same management; c) the motive of respondents no.2 to 4 Companies being to defraud the revenue under social legislation; d) CBI also was investigating all three companies and their Directors; e) both, respondents no.2 & 4 Companies were making PF compliance through one code till caught; f) that thus all the three respondents no.2 to 4 Companies were hand in glove with each other; and accordingly lifted the corporate veil and held the respondents no.5 to 9 directors of the respondent no.2 Company to be the owners of the properties aforesaid at Noida being auctioned by the respondent no.1 Bank and attached the said properties for the recovery of PF dues of Rs.2,96,87,014/- and penal damages / interest to the tune of Rs.3,44,77,868/- owed by the respondent no.2 company.ISSUE BEFORE THE COURT: The petition impugns the E-Auction Sale Notice dated 20th April, 2016 of the respondent no.1 Vijaya Bank (Bank), in pursuance to the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act, 2002, of the two properties at Noida of the respondent no.3 M/s. G.K. Products Pvt. Ltd. and respondent no.4 M/s. Well Computer Exim Pvt. Ltd. (Companies) who had stood as guarantors for the financial assistance granted by the respondent no.1 Bank to the respondent no.2 Creative Home Fashions Pvt. Ltd. (Company). The respondents no.5 to 9 are stated to be Directors in each of the respondents no.2 to 4 Companies. It is inter alia the claim of the petitioner Assistant Provident Fund Commissioner that the petitioner has a charge over the properties being auctioned on account of Provident Fund (PF) dues owed by the respondent no.2 Company. 5. The respondent no.1 Bank had attempted sale of the aforesaid properties as far back as in the year 2011 and which sale has been held up since then for the reason of the said objection of the petitioner. 6. Earlier, the petitioner passed orders dated 20th January, 2012 prohibiting the respondent no.1 Bank from auctioning the said properties, compelling the respondent no.1 Bank to file W.P.(C) No.1726/2012 in this Court impugning the said orders of the petitioner. The said writ petition remained pending in this Court till 30th July, 2014 when it was allowed, reasoning that the respondents no.3&4 Companies are separate juridical entities than the respondent no.2 Company which is stated to owe PF dues to the petitioner and that the assets of the respondents no.3&4 Companies cannot be proceeded against for recovery of PF dues of the respondent no.2 Company. The contention of the petitioner then also, of the respondents no.2 to 4 Companies being one and the same entity, was rejected and it was held that the three were separate Companies incorporated under the Companies Act, 1956 and that the petitioner had not commenced any proceeding where this issue had been adjudicated. It was further noted that no proceedings even had been initiated by the petitioner against the respondents no.3&4 Companies and the petitioner could not assume that the three were the same. It was further noted that under Section 8F(3) of the Employees‟ Provident Funds and Miscellaneous Provisions Act, 1952 (PF Act) though the petitioner was authorised to recover its dues from third parties which owed the said dues to the entity owing PF to the petitioner but the same had also not been done and it had not been established that the respondents no.3&4 Companies owed any money to the respondent no.2 Company which was stated to be owing PF dues to the petitioner. The petitioner preferred LPA No.23/2016 against the aforesaid judgment allowing the writ petition of the respondent no.1 Bank but which LPA was dismissed vide order dated 13th January, 2016 affirming the reasoning given by the learned Single Judge. Taking a cue from the aforesaid reasoning, the Recovery Officer of the petitioner claims to have issued a notice dated 22nd March, 2016 to the respondent no.1 Bank and to the respondents no.2 to 9 to show cause why the corporate veil should not be lifted and to have vide a very well written and reasoned order dated 17th May, 2016, after considering the reply of the respondent no.1 Bank to the show cause notice (none of the other notices responded) found a) all the three respondents 2 to 4 Companies to be operating and carrying on business from the said properties; b) the respondents no.5 to 9 to be Directors in all the three respondents no.2 to 4 Companies and thus having the same management; c) the motive of respondents no.2 to 4 Companies being to defraud the revenue under social legislation; d) CBI also was investigating all three companies and their Directors; e) both, respondents no.2 & 4 Companies were making PF compliance through one code till caught; f) that thus all the three respondents no.2 to 4 Companies were hand in glove with each other; and accordingly lifted the corporate veil and held the respondents no.5 to 9 directors of the respondent no.2 Company to be the owners of the properties aforesaid at Noida being auctioned by the respondent no.1 Bank and attached the said properties for the recovery of PF dues of Rs.2,96,87,014/- and penal damages / interest to the tune of Rs.3,44,77,868/- owed by the respondent no.2 company. What is the power of the petitioner or its Recovery Officer to lift the corporate veil? RATIO OF THE COURT Supreme Court in Rajasthan Prem Krishan Goods Transport Co. Vs. Regional Provident Fund Commissioner, New Delhi (1996) 9 SCC 454 to have upheld the finding recorded by the Regional Provident Fund Commissioner of clubbing all the employees of two business entities and treating two to be one entity and thereby making the provisions of the PF Act applicable, without however going into the question; however neither of the two entities was a „company‟ within the meaning of the Companies Act and the question of corporate veil did not arise;Supreme Court to have in Calcutta Chromotype Ltd. Vs. Collector of Central Excise, Calcutta (1998) 3 SCC 681 held that there is no bar on the authorities to lift the veil of a company to see it was not wearing that mask for not being treated as a related person when, in fact, it was one and the same person; however again, what was for adjudication was the applicability of Section 4(1)(a) of the Central Excise and Salt Act, 1944 dealing with sales „not to a related person‟M/s. Gujarat Sweet Mart Vs. Regional Director, Employees State Insurance MANU/MH/0378/2014 holding that in the matter of realisation of statutory dues the authorities can always lift the corporate veil to find out the real persons who are responsible for payment of said statutory dues and that the PF Act is a beneficial piece of legislation so as to ensure that the employees get their due share on superannuation; accordingly, the realisation of provident fund dues of another company from its holding company was upheld;Though a reading of the aforesaid judgments would indicate that the petitioner / its RO is entitled and empowered to pierce the corporate veil but It be may mention that the judgments of the Supreme Court aforenoted are with respect to the clubbing of employees for the purpose of application of the beneficial legislations, provisions whereof are applicable only upon a certain minimum number of employees being employed therein and in the context of the definition and meaning of “establishment” and “employer” in the said statutes and the said judgments may not be applicable in the context of recovery of PF dues of one company by attachment and sale of properties of another company by lifting/piercing the corporate veil as has been done in the present case.Corporate veil can be pierced by the authorities under a statute only where the statute itself permits lifting of corporate veil for realisation of dues thereunder. A perusal of the PF Act with the Second and Third Schedules of the Income Tax Act, in my opinion, neither provides for corporate veil to be pierced nor empowers the authorities under PF Act to lift corporate veil to recover the dues of one company from another. Lifting of corporate veil entails adjudication of facts and which I do not find the authorities under the PF Act to be empowered to do. Merely because Rules 82 and 83 afford protection to authorities under PF Act as available to judicial officers and vest in the said authorities powers of receiving evidence, administrating oath, enforcing attendance and compelling production of documents, as in a Civil Court, will not convert the said authorities into a Civil Court to adjudicate disputed question of facts of lifting of corporate veil for recovery of dues of one company from another.Even where the statute does not provide for lifting of corporate veil, it can still be lifted under the common law if public interest so demands. However such lifting of corporate veil under the common law cannot be by the authorities under the statute and can be only by the Courts.The Bombay High Court in Oil and Natural Gas Corporation Ltd. Vs. Jindal Drilling and Industries Limited and in Wind World (India) Limited Vs. Enercon GmbH has held that Arbitral Tribunal has no power to lift the corporate veil and only a Court can lift a corporate veil of the company. The reason therefor, in my view is quiet obvious. In the absence of a statute permitting lifting of corporate veil and in which case lifting of veil will be for reasons given in the statute, corporate veil under common law is lifted to prevent fraud and finding in which respect can be returned only by the Court. Though a reading of the aforesaid judgments would indicate that the petitioner / its RO is entitled and empowered to pierce the corporate veil but It be may mention that the judgments of the Supreme Court aforenoted are with respect to the clubbing of employees for the purpose of application of the beneficial legislations, provisions whereof are applicable only upon a certain minimum number of employees being employed therein and in the context of the definition and meaning of “establishment” and “employer” in the said statutes and the said judgments may not be applicable in the context of recovery of PF dues of one company by attachment and sale of properties of another company by lifting/piercing the corporate veil as has been done in the present case. Corporate veil can be pierced by the authorities under a statute only where the statute itself permits lifting of corporate veil for realisation of dues thereunder. A perusal of the PF Act with the Second and Third Schedules of the Income Tax Act, in my opinion, neither provides for corporate veil to be pierced nor empowers the authorities under PF Act to lift corporate veil to recover the dues of one company from another. Lifting of corporate veil entails adjudication of facts and which I do not find the authorities under the PF Act to be empowered to do. Merely because Rules 82 and 83 afford protection to authorities under PF Act as available to judicial officers and vest in the said authorities powers of receiving evidence, administrating oath, enforcing attendance and compelling production of documents, as in a Civil Court, will not convert the said authorities into a Civil Court to adjudicate disputed question of facts of lifting of corporate veil for recovery of dues of one company from another. Even where the statute does not provide for lifting of corporate veil, it can still be lifted under the common law if public interest so demands. However such lifting of corporate veil under the common law cannot be by the authorities under the statute and can be only by the Courts. The Bombay High Court in Oil and Natural Gas Corporation Ltd. Vs. Jindal Drilling and Industries Limited and in Wind World (India) Limited Vs. Enercon GmbH has held that Arbitral Tribunal has no power to lift the corporate veil and only a Court can lift a corporate veil of the company. The reason therefor, in my view is quiet obvious. In the absence of a statute permitting lifting of corporate veil and in which case lifting of veil will be for reasons given in the statute, corporate veil under common law is lifted to prevent fraud and finding in which respect can be returned only by the Court. DECISION HELD BY COURT: The  petitioner if aggrieved from the measures taken by the respondent no.1 Bank under the SARFAESI Act had the remedy available of approaching the Debt Recovery Tribunal (DRT) under Section 17 of the SARFAESI Act and which the petitioner has again failed to do. It is a well settled principle that jurisdiction under Article 226 will not be exercised when an alternative efficacious remedy is available. Reference in the said regard can be made to the recent judgment of the Supreme Court in Joshi Technologies International Inc. Vs. Union of India (2015) 7 SCC 728. 23.Liberty is however given to the petitioner to, if is able to make out a case and if permitted in law, make a claim against the respondent no.1 Bank with respect to the sale proceeds of the aforesaid two properties.To the said extent, none of the observations contained in this order shall come in the way of the petitioner. The petition is accordingly dismissed. No costs.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 26th May 2016 W.P.(C) No.4970 2016 & CM No.20687 2016No.4970 2016 & CM No.20687 2016in pursuance to the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 of the two properties at Noida of the respondent no.3 M s. G.K. Products Pvt. Ltd. and respondent no.4 M s. Well Computer Exim Pvt. Ltd.who had stood as guarantors for the financial assistance granted by the respondent no.1 Bank to the respondent no.2 Creative Home Fashions Pvt. Ltd. Company). The respondents no.5 to 9 are stated to be Directors in each of the respondents no.2 to 4 Companies. W.P.(C) No.4970 2016 4. It is inter alia the claim of the petitioner Assistant Provident Fund Commissioner that the petitioner has a charge over the properties being auctioned on account of Provident Funddues owed by the respondent no.2 Company. The respondent no.1 Bank had attempted sale of the aforesaid properties as far back as in the year 2011 and which sale has been held up since then for the reason of the said objection of the petitioner. Earlier the petitioner passed orders dated 20th January 2012 prohibiting the respondent no.1 Bank from auctioning the said properties compelling the respondent no.1 Bank to file W.P.(C) No.1726 2012 in this Court impugning the said orders of the petitioner. The said writ petition remained pending in this Court till 30th July 2014 when it was allowed reasoning that the respondents no.3&4 Companies are separate juridical entities than the respondent no.2 Company which is stated to owe PF dues to the petitioner and that the assets of the respondents no.3&4 Companies cannot be proceeded against for recovery of PF dues of the respondent no.2 Company. The contention of the petitioner then also of the respondents no.2 to 4 Companies being one and the same entity was rejected and it was held that the three were separate Companies incorporated under the Companies Act 1956 and that the petitioner had not commenced any proceeding where this issue had been adjudicated. It was further noted that no proceedings even had been initiated by the petitioner against the respondents no.3&4 Companies and the petitioner could not assume that the three were the same. It was further noted that under Section 8F(3) of the Employees‟ Provident Funds and Miscellaneous Provisions Act 1952 W.P.(C) No.4970 2016 though the petitioner was authorised to recover its dues from third parties which owed the said dues to the entity owing PF to the petitioner but the same had also not been done and it had not been established that the respondents no.3&4 Companies owed any money to the respondent no.2 Company which was stated to be owing PF dues to the petitioner. The petitioner preferred LPA No.23 2016 against the aforesaid judgment allowing the writ petition of the respondent no.1 Bank but which LPA was dismissed vide order dated 13th January 2016 affirming the reasoning given by the learned Single Judge. Taking a cue from the aforesaid reasoning the Recovery Officer of the petitioner claims to have issued a notice dated 22nd March 2016 to the respondent no.1 Bank and to the respondents no.2 to 9 to show cause why the corporate veil should not be lifted and to have vide a very well written and reasoned order dated 17th May 2016 after considering the reply of the respondent no.1 Bank to the show cause noticefound a) all the three respondents 2 to 4 Companies to be operating and carrying on business from the said properties b) the respondents no.5 to 9 to be Directors in all the three respondents no.2 to 4 Companies and thus having the same management c) the motive of respondents no.2 to 4 Companies being to defraud the revenue under social legislation d) CBI also was investigating all three companies and their Directors e) both respondents no.2 & 4 Companies were making PF compliance through one code till caught f) that thus all the three respondents no.2 to 4 Companies were hand in glove with each other and W.P.(C) No.4970 2016 accordingly lifted the corporate veil and held the respondents no.5 to 9 directors of the respondent no.2 Company to be the owners of the properties aforesaid at Noida being auctioned by the respondent no.1 Bank and attached the said properties for the recovery of PF dues of Rs.2 96 87 014 and penal damages interest to the tune of Rs.3 44 77 868 owed by the respondent no.2 company. I have enquired from the counsel for the petitioner as to what is the power of the petitioner or its Recovery Officer to lift the corporate veil. 10. The counsel for the petitioner save for generally stating that the petitioner exercises judicial functions is unable to cite any provision under which the petitioner may have been authorised by law to undertake an exercise as of lifting of corporate veil. 11. The order dated 17th May 2016 is in a proceeding under Sections 8B to 8G of the PF Act and which provisions also are not found to be so authorising or empowering the petitioner. Section 8B authorises the petitioner to issue to the Recovery Officera certificate specifying the amount of arrears and empowers the RO to on receipt of such certificate proceed to recover the amount “from the establishment or as the case may be the employer by one or more of the modes” prescribed therein namely by attachment and sale of movable or immovable property of the establishment or as the case may be of the employer or by arrest of the employer and his detention in prison or by appointing a receiver for the management of the movable or immovable properties of the establishment or as the case may be of the employer. The remaining provisions 8C to 8G are found to be procedural in nature. However Section 8G makes W.P.(C) No.4970 2016 applicable the provisions of the Second and Third Schedules of the Income tax Act 1961 and the Income tax Rules 1962 to the said proceedings. 12. The counsel for the petitioner has drawn attention to Clauses 82 and 83 of the Second Schedule of the Income Tax Act. Clause 82 provides that a Commissioner and the Tax Recovery Officer in the discharge of their functions under the Schedule shall be deemed to be acting judicially within the meaning of the Judicial Officers Protection Act 1850 and Clause 83 provides that the said officers shall have the powers of a Civil Court while trying a suit for the purpose of receiving evidence administering oaths enforcing the attendance of witnesses and compelling the production of documents. 13. The said provisions in my view would not make the petitioner or its Recovery Officer a Court as the counsel for the petitioner contends. All that the said provisions vest in the petitioner are certain powers of the Civil Court and which would not include the inherent adjudicatory powers as in the Civil Court. I however find: Supreme Court in Rajasthan Prem Krishan Goods Transport Co. Vs. Regional Provident Fund Commissioner New Delhi 1996) 9 SCC 454 to have upheld the finding recorded by the Regional Provident Fund Commissioner of clubbing all the employees of two business entities and treating two to be one entity and thereby making the provisions of the PF Act applicable without however going into the question however W.P.(C) No.4970 2016 neither of the two entities was a „company‟ within the meaning of the Companies Act and the question of corporate veil did not arise Supreme Court to have in Calcutta Chromotype Ltd. Vs. Collector of Central Excise Calcutta 3 SCC 681 held that there is no bar on the authorities to lift the veil of a company to see it was not wearing that mask for not being treated as a related person when in fact it was one and the same person however again what was for adjudication was the applicability of Section 4(1)(a) of the Central Excise and Salt Act 1944 dealing with sales „not to a related person‟ c) M s L. N. Gadodia and Son Pvt. Ltd. Vs. Regional Provident Fund Commissioner MANU DE 9834 2007 where also clubbing of the employees of two companies for applying the provisions of the PF Act was upheld d) G.V. Films Ltd. Vs. S. Priyadarshan MANU TN 2550 2005 where a Single Judge of the High Court of Madras to have held that the Tax Recovery Officer acting under Rules 82 and 83 of the Second Schedule to the Income Tax Act 1961 is entitled to lift the veil of corporate entity and pay regard to the realities though a number of judgments were relied upon but if I may respectfully say so none is with respect to the power of the authorities such as the petitioner herein or its RO and are in the context of the power of the Court to lift the corporate veil W.P.(C) No.4970 2016 M s. Gujarat Sweet Mart Vs. Regional Director Employees State Insurance MANU MH 0378 2014 holding that in the matter of realisation of statutory dues the authorities can always lift the corporate veil to find out the real persons who are responsible for payment of said statutory dues and that the PF Act is a beneficial piece of legislation so as to ensure that the employees get their due share on superannuation accordingly the realisation of provident fund dues of another company from its holding company was upheld f) K. Ramasamy Vs. Commissioner of Income Tax MANU TN 2670 2002 where a Division Bench of the High Court of Madras held that income tax authorities are entitled to pierce the veil of corporate personality and look at the reality of transaction g) Bhaskar Tea & Industries Ltd. Vs. Employees’ Regional Provident Fund Organization MANU WB 0483 2014 also holding that in the matter of realisation of statutory dues the authorities can always lift the corporate veil to find out the real persons who are responsible for payment of such statutory dues. 15. Though a reading of the aforesaid judgments would indicate that the petitioner its RO is entitled and empowered to pierce the corporate veil but I may mention that the judgments of the Supreme Court aforenoted are with respect to the clubbing of employees for the purpose of application of the beneficial legislations provisions whereof are applicable only upon a certain minimum number of employees being employed therein and in the context W.P.(C) No.4970 2016 of the definition and meaning of “establishment” and “employer” in the said statutes and the said judgments may not be applicable in the context of recovery of PF dues of one company by attachment and sale of properties of another company by lifting piercing the corporate veil as has been done in the present case. The judgment supra of this court is also in the same vein. Though the High Courts of Madras Bombay and Calcutta have held so but I do not find any judgment of this Court and entertain doubt whether the authorities under the PF Act can be held to be so empowered. In fact the High Court of Bombay in Universal Pollution Control P. Ltd. Vs. Regional Provident Fund Commissioner 2006 Mh. L.J.831 held that there is no provision in the PF Act that a liability of one company can be fastened on the other company even by lifting the corporate veil. Mention may also be made to Regional Provident Fund Commissioner Vs. ABS Spinning Orissa Ltd. MANU SC 8103 2008 where a holding company was held to be not liable for provident fund dues of its subsidiary. In my view corporate veil can be lifted either where it is permitted by a statute or where it is contractually so agreed or under the common law. 17. The question is not whether the corporate veil can be pierced or not. It definitely can be. There is also no doubt that avoidance of statutory liabilities under a social welfare legislation is a reason enough to lift the corporate veil. The question which however arises for adjudication is whether the corporate veil can be pierced lifted by the authorities under the PF Act. Again in my view corporate veil can be pierced by the authorities under a statute only where the statute itself permits lifting of corporate veil for realisation of dues thereunder. A perusal of the PF Act with the Second W.P.(C) No.4970 2016 and Third Schedules of the Income Tax Act in my opinion neither provides for corporate veil to be pierced nor empowers the authorities under PF Act to lift corporate veil to recover the dues of one company from another. Lifting of corporate veil entails adjudication of facts and which I do not find the authorities under the PF Act to be empowered to do. Merely because Rules 82 and 83 afford protection to authorities under PF Act as available to judicial officers and vest in the said authorities powers of receiving evidence administrating oath enforcing attendance and compelling production of documents as in a Civil Court will not convert the said authorities into a Civil Court to adjudicate disputed question of facts of lifting of corporate veil for recovery of dues of one company from another. I am further of the view that even where the statute does not provide for lifting of corporate veil it can still be lifted under the common law if public interest so demands. However such lifting of corporate veil under the common law cannot be by the authorities under the statute and can be only by the Courts. To me it prima facie appears that the petitioner if desirous of lifting corporate veil will have to approach the Civil Court. The Bombay High Court in Oil and Natural Gas Corporation Ltd. Vs. Jindal Drilling and Industries Limited MANU MH 0735 2015 and in Wind WorldLimited Vs. Enercon GmbH MANU MH 0411 2016 has held that Arbitral Tribunal has no power to lift the corporate veil and only a Court can lift a corporate veil of the company. The reason therefor in my view is quiet obvious. In the absence of a statute permitting lifting of corporate veil and in which case lifting of veil will be for reasons given in the statute corporate W.P.(C) No.4970 2016 veil under common law is lifted to prevent fraud and finding in which respect can be returned only by the Court. 18. However I do not deem it necessary to entertain this petition to finally adjudicate the said legal question or to render a final view on the said aspect being of the view that the present petition is liable to the dismissed for other reasons. 19. Piercing of corporate veil even if permitted to the petitioner its Recovery Officer has to be in public interest. I am of the view that it is not in the larger public interest to stall any further the auction scheduled for today by the respondent no.1 Bank. It cannot be lost sight of that the dues for recovery whereof the respondent no.1 Bank is proceeding to auction the properties aforesaid are also public dues and the said auction has been stalled at the instance of the petitioner for the last nearly five years. The petitioner even now has merely attached the properties and if were to proceed with the sale of the property it may take another five years or so and of which there is no certainty also as of now. On the contrary the respondent no.1 Bank is on the threshold of selling the property and realization of sale proceeds thereof. It is not deemed appropriate to at this stage interfere with such sale. I need in this context refer only to Vikas Singh Vs. Lieutenant Governor 227DLT 333Manisha Sharma Vs. Commissioner of Delhi Police MANU DE 3411 2015 and Delhi Development Authority Vs. Manav Shiksha Samiti MANU DE 0815 2012 holding that this Court in exercise of power under Article 226 of the Constitution of India is empowered to deny a relief even if the petitioner is entitled thereto W.P.(C) No.4970 2016 if otherwise granting of such relief is not found to be just or proper. I fear that if this Court were to interfere with the sale today and or to entertain this petition the property will be wasted further benefiting neither the petitioner nor the respondent no.1 Bank and may be to the benefit of the respondents no.2 to 9. 22. There is another reason for not entertaining the petition. I am of the view that the petitioner if aggrieved from the measures taken by the respondent no.1 Bank under the SARFAESI Act had the remedy available of approaching the Debt Recovery Tribunal under Section 17 of the SARFAESI Act and which the petitioner has again failed to do. It is a well settled principle that jurisdiction under Article 226 will not be exercised when an alternative efficacious remedy is available. Reference in the said regard can be made to the recent judgment of the Supreme Court in Joshi Technologies International Inc. Vs. Union of India7 SCC 728. 23. Liberty is however given to the petitioner to if is able to make out a case and if permitted in law make a claim against the respondent no.1 Bank with respect to the sale proceeds of the aforesaid two properties. To the said extent none of the observations contained in this order shall come in the way of the petitioner. 24. The petition is accordingly dismissed. No costs. MAY 26 2016 RAJIV SAHAI ENDLAW J W.P.(C) No.4970 2016

In arbitration, according to clause 38A of the GCC, LOA shall have precedence over the Special Conditions of Contract: High Court of Delhi

Clause 38A of the General Conditions of Contract (GCC) clearly states that the LOA will have precedence over the Special Conditions of Contract (SCC), which in turn, has precedence over the GCC. If there is an arbitration clause in the LOA, there is no question of resorting to the arbitration clause in the SCC. Where there are different agreements executed between the parties containing different arbitration clauses, the court has to examine the nature of the disputes between the parties to ascertain which arbitration clause would apply and the same was upheld by High Court of Delhi through the learned bench led by Justice C. Hari Shankar in the case of JOHNSON CONTROLS-HITACHI AIR CONDITIONING INDIA LTD vs. MAHAMAYA INFRASTRUCTURE PRIVATE LIMITED [ARB.P. 498/2021] on 02.02.2022. The facts of the case are that the respondent owns the “Taj Gateway Resort” situated at Shimla, licensed to the Taj Group. The respondent desired to install heating, ventilation, and air conditioning in the said property for which it approached the petitioner. The petitioner was awarded the contract for providing the said services. The contract between the parties included GCC and SCC. After the LOA was issued, the parties entered into a contract. Though the contract agreement was placed on record as reply filed by the respondent to the present petition, it was unsigned and undated. The petitioner’s counsel submitted that in any event, prima facie, the contract agreement annexed as the reply of the respondent cannot be admitted by this Court in view of the limited jurisdiction that it exercises in the present proceedings. It was further submitted that even as per the priority sequence envisaged by Clause 38A of the GCC, the “Agreement” would have priority over the LOA and once Clause 1 of the SCC accorded precedence to the SCC over the GCC, the arbitration clause in the SCC would have to prevail over the arbitration clause in the LOA. It was lastly submitted that as the disputes involves issues which would be within the skill area of an Engineer or an Architect, it would be appropriate that the arbitration abide by the arbitration clause in the SCC rather than that of the LOA. According to the facts and circumstances of the case, the Court was of opinion that the present dispute was technical in nature and the arbitrator should be someone with engineering or architectural knowledge but that cannot be a basis to decide which arbitration clause, therefore, the arbitration Clause in the LOA would prevail. The Court observed that, “Clause 38A of the GCC clearly states that the LOA would have precedence over the SCC, which, in turn, would have precedence over the GCC. Once, therefore, there is an arbitration clause in the LOA, there is no question of resorting to the arbitration clause in the SCC. Where there are different agreements executed between the parties containing different arbitration clauses, the court has to examine the nature of the disputes between the parties to ascertain which arbitration clause would apply.”

IN THE HIGH COURT OF DELHI AT NEW DELHI ARB.P. 498 2021 JOHNSON CONTROLS HITACHI AIR CONDITIONING INDIA LTD Through Mr. Praveen Mahajan Adv. ..... Petitioner MAHAMAYA INFRASTRUCTURE PRIVATE LIMITED Respondent Through Mr. Adab Singh Kapoor & Mr. Sameer Chaudhary Advs. HON BLE MR. JUSTICE C. HARI SHANKAR By Video Conference on account of COVID 19) JUDGEMENT02.02.2022 The court is in the present case faced with a piquant situation in which various documents have been executed between the parties containing arbitration clauses each of which points in a direction to different from the others. The way forward in such a situation is shown by the judgment of the Supreme Court in Balasore Alloys Ltd. v. Medima Llc1 para 11 of which reads thus: “11. At this stage it is necessary for us to refer to the decision rendered in Olympus Superstructures Ltd. v. Meena Vijay Khetan2 wherein this Court was confronted with the issue of there being two different arbitration clauses in 19 SCC 136 25 SCC 651 ARB.P. 498 2021 two related agreements between the same parties. This Court while dealing with the same had harmonised both the clauses and had on reconciliation held that the parties should get the disputes resolved under the main agreement. In that context it was held as hereunder:Interior Design agreement “30. If there is a situation where there are disputes and differences in connection with the main agreement and also disputes to “other matters” in regard “connected” with the subject matter of the main agreement then in such a situation in our view we are governed by the general arbitration Clause 39 of the main agreement under which disputes under the main agreement and disputes connected therewith can be referred to the same arbitral tribunal. This Clause 39 no doubt does not refer to any named arbitrators. So far as Clause 5 of concerned it refers to disputes and differences arising from that agreement which can be referred to named arbitrators and the said Clause 5 in our opinion comes into play only in a situation where there are no disputes and differences in relation to the main agreement and the disputes and differences are solely confined to the Interior Design agreement. That in our view is the true intention of the parties and that is the only way by which the general arbitration provision in Clause 39 of the main agreement and the arbitration provision for a named arbitrator contained in Clause 5 of the Interior Design agreement can be harmonised or reconciled. Therefore in a case like the present where the disputes and differences cover the main agreement as well as the Interior Design agreement — — it is the general arbitration Clause 39 in the main agreement that governs because the questions arise also in regard to disputes relating to the overlapping items in the schedule to the main agreement and the Interior Design agreement as detailed earlier. There cannot be conflicting awards in regard to items which overlap in the two agreements. Such a situation was never contemplated by the parties. The intention of the parties when they incorporated Clause 39 in the main the Interior Design agreement and Clause 5 ARB.P. 498 2021 the main contract but agreement was that the former clause was to apply to situations when there were disputes arising under both agreements and the latter was to apply to a situation where there were no disputes or differences arising the disputes and differences were confined only to the Interior Design agreement. A case containing two agreements with arbitration clauses arose before this Court in Agarwal Engg. Co. v. Technoimpex Hungarian Machine Industries Foreign Trade Co3. There were arbitration clauses in two contracts one for sale of two machines to the appellant and the other appointing the appellant as sales representative. On the facts of the case it was held that both the clauses operated separately and this conclusion was based on the specific clause in the sale contract that it was the “sole repository” of the sale transaction of the two machines. Krishna Iyer J. held that if that were so then there was no jurisdiction for travelling beyond the sale contract. The language of the other agreement appointing the appellant as sales representative was prospective and related to a sales agency and “later purchases” other than the purchases of these two machines. There was therefore no overlapping. The case before us and the above case exemplify contrary situations. In one case the disputes are connected and in the other they are distinct and not connected. Thus in the present case Clause 39 of the main agreement applies. Points 1 and 2 are decided accordingly in favour of the respondents.” A brief overview of the dispute is necessary to apply the law laid down in Balasore Alloys1. The respondent owns the “Taj Gateway Resort” situated at Shimla licensed to the Taj Group for running a Hotel for providing hospitality services. The respondent desired to install heating ventilation and air conditioning in the said property for which it approached the petitioner. The petitioner was awarded the contract for 34 SCC 367 ARB.P. 498 2021 providing the said services vide letter of award dated 3rd August 2015. The total value of the contract was ₹ 2 25 32 698 and the value of the equipment required to be installed was ₹ 78 12 008 . Additionally imported items were also required to be supplied under the contract. The contract between the parties includes General Conditions of Contract and Special Conditions of Contract Plan Preliminary Project Execution Schedule Drawing Site Location Drawings for Works.” Contract Works Clause 38A of the GCC reads thus: AMBIGUITIES DISCREPANCIES “38A. In case of ambiguities or discrepancies in the interpretation of the Contract Documents or error omission or contradiction therein or in any of them the CONTRACTOR shall prior to commencing the relative work apply in writing to the Project Manager who shall the Contractor instructions and clarifications which shall be in writing and shall be final and binding upon the Contractor thereon and in such event such instructions etc shall form part of the Contract Documents and shall be read as though the said instructions are and were at all times incorporated therein. In such an event the provisions in the separate contract thereupon issue to ARB.P. 498 2021 documents concerning or governing the same aspect precedence shall be given to the provisions contained in the documents mentioned below in the order in which they are set out below : The Letter of AcceptanceThe Agreement The Bill of Quantities i. ii. iii. The Letter of Negotiations iv. v. vi. vii. Schedule of Fiscal Aspects viii. The Special Conditions of Contract. ix. The General Conditions of Contract. The Tender Drawings. The Specifications. A variation or amendment issued after the execution of the formal contract shall take precedence over the formal contract and all other Contract Documents.” Clearly Clause 38A accords an order of precedence among the documents executed between the parties according to which “the Agreement” would have precedence over the Letter of Acceptance LOA) which in turn would have precedence over the SCC which again would have precedence over the GCC. The fact that the SCC has precedence over the GCC is also reflected in Clause 1 of the SCC which reads thus: “1. GENERAL: The Special Conditions of Contract are an extension of and ARB.P. 498 2021 are to be read in conjunction with the General Conditions of Contract Should there be any contradictory requirements in the two the requirement as per the Special Conditions of Contract shall prevail” The LOA came to be issued by the respondent to the petitioner on 3rd August 2015 which contained inter alia the following Clauses: “All Terms & Conditions as stated in the GCC and SCC of discussions correspondence will remain same in force and Arbitration Any dispute arising howsoever in connection with this contract the parties shall attempt in the first instance to resolve such dispute by friendly consultations. In the event of failure to resolve the disputes by such friendly consultations the same shall be settled by Arbitration by a single Arbitrator to be appointed by Client All disputes are subject to New Delhi jurisdiction only.” 10. The SCC which also forms part of the tender document according to Clause 1.33 of the GCCcontains the following arbitration Clause: “46.0 Settlement of Disputes & Arbitration All disputes and differences of any kind whatever arising out of or in connection with the contract or the carrying out of the works shall be referred to and settled by the Architects after hearing the disputing parties. The Architects shall state their decisions with reasons therefore. Such decisions may be in the form of ARB.P. 498 2021 a final certificate or otherwise. The decisions of the Architects with respect to any or all of the following matters shall be final and without appeal: Any discrepancy the drawings and or The variation or modifications of the design. The dismissal from the works of any persons re The opening up for inspection of any work The quality or quantity of works or the addition The removal and or re execution of any works a) b) or omission or substitution of any work. c) specifications and schedule of quantities. d) executed by the Contractor e) employed thereupon. f) covered up. g) under defects liability period. h) Acceptability of materials equipment and i) Materials workmanship necessary for the proper execution of j) k) Delay and extension of work. I) The amending and making good of any defects Termination of contract by the Owner. Assignment and sub letting. labour tools But if either the Owner the Contractor be dissatisfied with the decision of the Architects on any matter question or dispute of any kind except the matters listed then and in any such ca se either party may within twenty eight days after receiving notice to such decision give a written notice to the other party through the Architects requiring that such matters which are in dispute or difference ARB.P. 498 2021 of which such written notice has been given and no other shall be and is hereby referred to the arbitration and final decision of a single Arbitrator being a fellow of the Indian Institute of Architects or Institution of Engineers to be agreed upon and appointed by both the parties or In the case of disagreement as to the appointment of a single Arbitrator to the arbitration of two Architects or Institution of Engineers India) one to be appointed by each party which Arbitrators shall before taking upon themselves the burden or reference appoint an Umpire who must also be a fellow of one of the above referred institutions. The Arbitrator the Arbitrators or the Umpire shall have the power to open up review and revise any certificate opinion decision requisition or notice pertaining to the matters referred to them and to determine the same by his their award. Upon every or any such references the cost of and incidental to the reference and award respectively shall be at the discretion of the Arbitrator or Arbitrators or Umpire who may determine the amount thereof or direct the same to be taxes as between Attorney and Client or as between party and party and shall direct by who and to whom and in what manner the same shall be borne and paid. The award of the Arbitrator or Arbitrators or the Umpire shall be final and binding on the parties.” 11. After the LOA had been issued according to Mr. Kapoor learned Counsel for the respondent the parties entered into a contract agreement dated 17th December 2015. Though the contract agreement has been placed on record as Annexure R 2 to the reply filed by the respondent to the present petition it is unsigned and undated. 12. Mr. Mahajan learned Counsel for the petitioner disputes the very execution of this document. In any event prima facie the contract agreement annexed as Annexure R 2 to the reply of the respondent cannot be taken stock of by this Court especially in view of the limited jurisdiction that it exercises in the present proceedings ARB.P. 498 2021 circumscribed by Section 11(6A) of the 1996 Act read with the judgment of the Supreme Court in Vidya Drolia v Durga Trading 13. Mr. Kapoor’s contention is that even as per the priority sequence envisaged by Clause 38A of the GCC the “Agreement” would have priority over the LOA. Having so submitted Mr. Kapoor draws my attention to Clause 4 of the “Agreement” dated 17th December 2015 which reads as under: “That subject to what is specifically recorded herein and in the various communications and minutes of meetings culminating into the execution of this Contract Agreement the following documents and the communications exchanged between the parties as are mentioned hereunder form part of and shall accordingly be read and construed as part of this Contract Agreement as amended. Notice Inviting Tender dated 11th March 2015. Tender Form iii) Contract Agreement and General Conditions. iv) Special Conditions. Technical Specifications. vi) Priced Bill of Quantities. vii) Tender Drawings. viii) Contractor s tender bid submitted dated 04th April 2015. ix) Letter 42 SCC 1 ARB.P. 498 2021 Work order dated 3rd August 2015 issued by INFRASTRUCTURE PVT M s. MAHAMAYA LTD.” LOA Ref: LOA 04 220715. 14. Mr. Kapoor relies on Clause 4 to contend that the Agreement was executed after the LOA as the LOA finds reference in sub clause ix) of Clause 4 of the Agreement. 15. Even if this were so and even if the Agreement were to be treated as meriting cognizance Clause 4 of the agreement for reasons which would become presently apparent does not really advance resolution of the issue in controversy in the present case. 16. Mr. Kapoor has invited my attention in conjunction with Clause 4 to Clause 1.33 of the GCC which already stands reproduced hereinabove. He points out quite correctly that the GCC and the SCC are part of the “Tender Documents” within the meaning of Clause 1.33 of the GCC. which reads thus: 17. Mr. Kapoor also places reliance on Clause 11 of the Agreement “11. That all disputes arising out of or in any way connected with this Contract Agreement shall be resolved through the arbitration as mentioned in the Tender Documents and that the same shall be deemed to have arisen in New Delhi and the courts at New Delhi alone shall have the Jurisdiction to determine the same ” 18. Mr Kapoor submits that once Clause 1 of the SCC accorded precedence to the SCC over the GCC the arbitration clause in the ARB.P. 498 2021 SCC would have to prevail over the arbitration clause in the LOA. 19. The grievance of the petitioner against the respondent as set out in the petition is that the respondent defaulted in making payments to the petitioner against the work contracted to it. The claim of the petitioner against the respondent is set out in para 7.20 of the petition as amounting to ₹ 1 10 78 551 along with interest @ 12 per cent per annum from the date of invoice. 20. Balasore Alloys Ltd1 advices that where there are different agreements executed between the parties containing different arbitration clauses the court has to examine the nature of the disputes between the parties to ascertain which arbitration clause would apply. That exercise however when conducted in the present case really does not assist a resolution of the competing arbitration clauses as the contract between the parties includes the LOA the GCC and the SCC. It is obviously one integrated transaction especially as Clause 38A of the GCC references the LOA and the LOA in turn references the GCC and the SCC. 21. Seen thus the Court would be required to accord precedence on the basis of the covenants in the LOA the GCC and the SCC between the arbitration clause which is in the LOA and that which is in the SCC as the two clauses are mutually contradictory and cannot exist side by side. They are also by their very nature incapable of being harmonised as the arbitration clause in LOA envisages arbitration by a single arbitrator to be appointed by the respondent ARB.P. 498 2021 whereas the arbitration clause in the SCC envisages arbitration by a panel of Architects and Engineers. 22. Mr. Kapoor has also emphasised the fact that as the disputes in the present case involves issues which would be within the skill area of an Engineer or an Architect it would be appropriate that the arbitration abide by the arbitration clause in the SCC rather than that of the LOA. 23. Though the court is willing to accord due deference to Mr. Kapoor’s submission that the dispute being technical in nature the arbitrator should be someone with engineering or architectural knowledge that cannot be a basis to decide which arbitration clause i.e. the arbitration clause in the LOA or that in the SCC would 24. Clause 38A of the GCC clearly states that the LOA would have precedence over the SCC which in turn would have precedence over the GCC. Once therefore there is an arbitration clause in the LOA there is no question of resorting to the arbitration clause in the SCC. Clause 1 of the SCC cannot assist the respondent as it merely accords precedence to the SCC over the GCC and makes no reference to the LOA. Among the LOA the SCC and the GCC therefore it is quite clear that by operation of Clause 38A of the GCC the LOA would have pre eminent preference. 25. Apropos Clause 11 of the Agreementthe said clause merely states that the ARB.P. 498 2021 arbitration clause in the “Tender Documents would apply”. 26. The tender documents include both the GCC and the SCC. Clause 38A of the GCC at the cost of repetition accords pre eminence of the LOA over the SCC. As such even if one were to go by Clause 11 of the agreement the arbitration clause in the LOA would have to be accorded preference. 27. The arbitration clause in the LOA envisages arbitration by a single arbitrator to be appointed by the respondent. 28. Mr. Kapoor acknowledges quite fairly that this clause would be incapable of enforcement in view of Section 12of the 1996 Act read with the judgments of the Supreme Court in Perkins Eastman Architects DPC v. HSCC Pvt. Ltd.5 Bharat Broadband Network Limited v. United Telecoms Ltd.6 and TRF Limited v. Energo Engineering Projects Ltd7. which invalidate any clause which confers authority to one of the parties to the contract to appoint the arbitrator. In such a case the decisions are unanimous in requiring the court to appoint the arbitrator. 29. As such as the arbitration Clause in the LOA would in my opinion prevail and as an arbitrator cannot be appointed in accordance with the said clause in view of Section 12of the 1996 Act and the law laid down in Perkins Eastman Architects DPC5 and the other decisions cited supra the court would have to appoint the 5 2019 SCC Online SC 1517 6 35 SCC 755 ARB.P. 498 2021 arbitrator. 30. As such the court refers the disputes to the Delhi International Arbitration Centreto appoint an arbitrator to arbitrate on the disputes between the parties. 31. The DIAC is requested to appoint an arbitrator who has knowledge of architecture or engineering issues. 32. The arbitrator would also be at liberty to seek expert advice in accordance with the provisions in that regard as contained in the 1996 Act. 33. The arbitration would be conducted under the aegis of the DIAC and would abide by its rules and regulations. 34. The arbitrator would be entitled to charge fees in accordance with the Schedule of Fees maintained by the DIAC. 35. The petition stands disposed of in the aforesaid terms with no C. HARI SHANKAR J order as to costs. FEBRUARY 2 2022 dsn 78 SCC 377 ARB.P. 498 2021

“Respondent addressed the query by providing the information regarding the agenda and minutes of the Board Meeting…”: SEBI, Part 2.

In this context, the Hon’ble Supreme Court, in the matter of Central Public Information Officer, Supreme Court of India Vs. Subhash Chandra Agarwal (order dated November 13, 2019 in Civil Appeal No. 10044 of 2010 with Civil Appeal No. 10045 of 2010 and Civil Appeal No. 2683 of 2010), held that: “ 59. Reading of the aforesaid judicial precedents, in our opinion, would indicate that personal records, including name, address, physical, mental and psychological status, marks obtained, grades and answer sheets, are all treated as personal information. Similarly, professional records, including qualification, performance, evaluation reports, ACRs, disciplinary proceedings, etc. are all personal information. Medical records, treatment, choice of medicine, list of hospitals and doctors visited, findings recorded, including that of the family members, information relating to assets, liabilities, income tax returns, details of investments, lending and borrowing, etc. are personal information. Such personal information is entitled to protection from unwarranted invasion of privacy and conditional access is available when stipulation of larger public interest is satisfied. This list is indicative and not exhaustive…“. Further, no larger public interest would be served in disclosing the information as sought by the appellant. In view of the same, it was agreed with response of the respondent that the requested information is exempt from disclosure under section 8(1)(j) of the RTI Act. Without prejudice to the above, it was noted that the respondent has guided the appellant to access the objective of the working group which is available on the SEBI website. Accordingly, did not find any deficiency in the response. The appellant, vide query number 2, sought the criteria on the basis of which people were shortlisted to become part of the group which worked and floated the Consultation Paper on the Review of Regulatory Framework for Investment Advisers on January 2020.

Appeal No. 43721 BEFORE THE APPELLATE AUTHORITY Under the Right to Information Act 2005) SECURITIES AND EXCHANGE BOARD OF INDIA Appeal No. 43721 CPIO SEBI Mumbai The appellant had filed an application dated July 02 2021under the Right to Information Act 2005of the RTI Act as the same relates to personal information the disclosure of which has no relationship to any public activity or interest and may cause unwarranted invasion into the privacy of the officials. However the respondent informed that the objective of the working group is given at point 2.7 page 2 of the report for public comments. The respondent also provided the link for accessing the said report on the SEBI website. The appellant in her appeal submitted that she had asked for the list and not their personal records such as phone numbers id details etc. Appeal No. 43721 I have perused the query and the response provided thereto. On consideration I find that the requested information pertains to personal information relating to details such as names of persons who were part of the group which worked and floated the Consultation Paper on the Review of Regulatory Framework for Investment Advisers on January 2020. I am of the opinion that even disclosing the names may reveal the identity of the persons and may cause unwarranted invasion of their privacy. In this context the Hon’ble Supreme Court in the matter of Central Public Information Officer Supreme Court of India Vs. Subhash Chandra Agarwalheld that: “ 59. Reading of the aforesaid judicial precedents in our opinion would indicate that personal records including name address physical mental and psychological status marks obtained grades and answer sheets are all treated as personal information. Similarly professional records including qualification performance evaluation reports ACRs disciplinary proceedings etc. are all personal information. Medical records treatment choice of medicine list of hospitals and doctors visited findings recorded including that of the family members information relating to assets liabilities income tax returns details of investments lending and borrowing etc. are personal information. Such personal information is entitled to protection from unwarranted invasion of privacy and conditional access is available when stipulation of larger public interest is satisfied. This list is indicative and not exhaustive...". Further no larger public interest would be served in disclosing the information as sought by the appellant. In view of the same I agree with response of the respondent that the requested information is exempt from disclosure under section 8(1)(j) of the RTI Act. 6. Without prejudice to the above I note that the respondent has guided the appellant to access the objective of the working group which is available on the SEBI website. Accordingly I do not find any deficiency in the response. 7. Query number 2 The appellant vide query number 2 sought the criteria on the basis of which people were shortlisted to become part of the group which worked and floated the Consultation Paper on the Review of Regulatory Framework for Investment Advisers on January 2020. The respondent in response to query number 2 informed that the information sought by the appellant is exempt under Section 8(1)(a) of the RTI Act as the same pertains to the internal functioning of SEBI and relates to the systems and procedures followed by SEBI. Further the said information is strategic in nature disclosure of which may hamper the decision making by SEBI in its supervisory and regulatory role. The appellant in her appeal inter alia submitted that the information was sought in order to maintain transparency about criteria for shortlisting. Appeal No. 43721 9. On perusal of the query and the response provided thereto I note that the respondent denied the disclosure of information by invoking Section 8(1)(a) of the RTI Act. In this regard I am of the opinion that the information sought by the appellant may be strategic in nature and may relate to the internal functioning of SEBI. Further I note that the such strategic information if disclosed may hamper SEBI’s supervisory and regulatory role. I therefore find that such information is exempted from disclosure under Section 8(1)(a) of the RTI Act. In view of these observations I find no deficiency in the respondent’s response. 10. Query number 5 the appellant vide query number 5 sought the following information “Share the criteria under which grandfathering provision was provided to existing RIA above 50 years of age.” 11. The respondent in response to the query informed that the information sought by the appellant is available at paraof the minutes of the SEBI Board Meeting dated February 17 2020. The respondent also provided the link for accessing the said minutes. The appellant in her appeal submitted that irrelevant information was provided. 12. On perusal of the query it appears that the query is in the nature of seeking clarification explanation from the respondent. It is understood that the respondent is not supposed to create information or to interpret information or to solve problems raised by the appellant or to furnish replies to situational queries or to furnish clarification under the provisions of RTI Act. Similar observations were made by the Hon’ble CIC in the matter of Prem Prakash Prajapati vs. CPIO Railways RDSOof the RTI Act 2005. However the respondent provided the link for accessing the agenda and minutes of the Board Meeting dated February 17 2020 wherein amendments to SEBI Appeal No. 43721 Regulations 2013 were discussed and approved by SEBI Board. The appellant in her appeal submitted that irrelevant information was provided. I have perused the query and the response provided thereto. On consideration I am inclined to agree with the response of the respondent that the query is vague and not specific. In this context I note that the Hon’ble CIC in Ms. Sarika Jain against National Hydroelectric Power Corporation Limited held that “As regards the first part i.e. copies of all documents in relation to the contracts mentioned in the RTI application the Commission finds that the term "all" used by the Appellant here is very vague and does not pin point the particular document she wants to obtain from the Respondents. The Appellant is therefore advised to be more specific and identify the documents she wants to obtain from the Respondents ..” In view of these observations the respondent did not have an obligation to respond to such vague and non specific query. 16. Notwithstanding the above I note that the respondent has addressed the query by providing the information regarding the agenda and minutes of the Board Meeting dated February 17 2020. Further the respondent also provided the link for accessing the same. 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: August 11 2021 ANAND BAIWAR APPELLATE AUTHORITY UNDER THE RTI ACT SECURITIES AND EXCHANGE BOARD OF INDIA

The admission would have mattered if said defendant had claimed the title by adverse possession: Calcutta High Court

The facts of the case are associated with the petitioner’s property dispute. The learned Advocate for the appellant, who was defendant no.3, submitted that there were two scheduled properties that were recorded as joint property under Revenue Survey Record of Rights (RSROR). Regardless of the deeds of 1928 and 1935, Mohan Mahato was the purchaser of ‘ka’ schedule property, which was the correct position. The scheduled properties were and are joint family properties and the said person Mohan Mahato was one of four sons of Bahadur Mahato. The said person purchased the property from the joint family fund. The record in RSROR was verified yet both the courts misjudged to acknowledge the evidence. The learned advocate also included, since the point of limitation was not urged in the Courts below, therefore cannot be taken here in the second appeal. Two significant questions of law were involved in the appeal, for its admission was suggested by the learned advocate. The suggested questions are reproduced below- “1. Whether the learned Judges in the Courts below substantially erred in law in decreeing the suit by wrongly applying the principle of law that records of right being exhibit 4 series cannot confer title of the property in favor of any person, when such exhibited documents are construing the principle of law that since the property has been purchased from the nucleus fund of the joint family, property has been recorded in the names of all the members of the joint family, which is the specific pleading of the defendant No.3/appellant.”  “2. Whether the learned Judges in the Courts below substantially erred in law in not considering the legal effect of the payment of rent by other than Mohan’s heirs, as appearing in the rent receipts being exhibit 2 series and B series as the same reflects the nature of the property as joint indicating purchase of Ka schedule suit property from the nucleus fund of the joint family and accordingly the judgment is perverse.”  A Supreme Court judgment, Sebastiao Luis Fernandes v. K.V.P. Shastri reported in (2013) 15 SCC 161, paragraphs 33 to 35, was referred by the learned advocate. It includes paragraph 35 that said Court relied on its earlier judgment in Hero Vinoth v. Seshammal reported in (2006) 5 SCC 545, wherefrom paragraph 24 was extracted and reproduced. Relying on clauses (ii) and (iii), the advocate submitted that the said clauses are the corresponding interpretations of notable questions of law which aroused in association out of disputable issues which include contentious issues regarding the joint family purchase of property and corresponding entries in RSROR. Originally, the suit was decreed. During the first appeal, a remand and an amendment were carried out. On 9th March 2000, the Trial Court by judgment again decreed the suit. The title and interest of plaintiffs and defendant no. 5 over ka’ schedule property, was declared. Defendant nos. 1 to 4 were permanently forbidden from meddling with their possession in respect of said schedule property. Partition in preliminary form in respect of 1/4th share in ‘kha’ schedule property was decreed for plaintiffs and defendant. The lower appellate Court upheld the judgment of the Trial Court. Bahadur Mahato was the owner of the ‘kha’ schedule property. The successor of Bahadur Mahato is plaintiffs and defendants. Defendant no. 5 are heirs of Jadu, another of the sons of Bahadur Mahato. Mohan had bought by deeds of 1928 and 1935, ‘ka’ schedule property. Eventually, the property and share of Mohan devolved upon Jadu. Consequently, their claim of 16 annas shares in ‘ka’ schedule property and 1/4th share in ‘kha’ schedule property. In the case of  Sebastiao Luis Fernandes (supra) there was dependence on Hero Vinoth (supra) for interpretation of fundamental questions of law meriting satisfaction of the High Court in admitting second appeals. In the case at hand plaintiffs relied on two deeds, of 1928 and 1935. No dispute regarding the deeds nor their interpretations were found. As stated, Mohan purchased those deeds, and his brother succeeded to his property and shares. Both Courts concurrently declared of the appellant, that the purchases made from the joint family fund, could not be proved. In the case of  Hero Vinoth (supra), Clause (ii) in paragraph 24 is an interpretation of a question of law on, inter alia, a debatable legal issue. The said debatable legal issue, in this case, is a claim of the title based on the record in RSROR, on disputation of joint family property. The Hon’ble High Court at Calcutta said “It is well settled, entry in record of rights gives rise to a rebuttable presumption of title because possession is many parts of title.” It was said by the lower appellate Court that disputes of purchases from the joint family fund were required or proof of the existence of the joint family. Another suggested question is based on the legal effect of payment of rent by other than Mohan’s descendants, to reflect upon the nature of the property as joint, indicating purchase of ‘ka’ schedule property from the core fund of joint family. The trial court dealt with the disagreements saying, inter alia, as follows: “At the time of argument, ld. advocate for the defendant no.3 made submission regarding possession of the suit property by defendant and in support of this he referred to some tax receipts. In this regard, it is settled proposition of law that tax receipts can not confer title to either of the parties. Hence, it is clear that plaintiffs have 1/4th share over the Kha schedule property.”  Thus Hon’ble High Court at Calcutta dismissed the case and held that “The trial Court has analysed the evidence and further evidence adduced on remand. Plaintiffs had the deeds by way of documentary evidence. Furthermore, their claim made, of them and defendant no. 5 having 1/4th share in ‘kha’ schedule property, stood admitted by appellant. Appellant’s assertion of purchase out of joint family fund could not be proved at trial. The lower appellate Court concurred. We are not satisfied that such findings give rise to a substantial question of law, either in relation to the issue decided or the findings being perverse”. Click here to read the judgment Judgment reviewed by Bipasha Kundu     The facts of the case are associated with the petitioner’s property dispute. The learned Advocate for the appellant, who was defendant no.3, submitted that there were two scheduled properties that were recorded as joint property under Revenue Survey Record of Rights (RSROR). Regardless of the deeds of 1928 and 1935, Mohan Mahato was the purchaser of ‘ka’ schedule property, which was the correct position. The scheduled properties were and are joint family properties and the said person Mohan Mahato was one of four sons of Bahadur Mahato. The said person purchased the property from the joint family fund. The record in RSROR was verified yet both the courts misjudged to acknowledge the evidence. The learned advocate also included, since the point of limitation was not urged in the Courts below, therefore cannot be taken here in the second appeal. Two significant questions of law were involved in the appeal, for its admission was suggested by the learned advocate. The suggested questions are reproduced below- “1. Whether the learned Judges in the Courts below substantially erred in law in decreeing the suit by wrongly applying the principle of law that records of right being exhibit 4 series cannot confer title of the property in favor of any person, when such exhibited documents are construing the principle of law that since the property has been purchased from the nucleus fund of the joint family, property has been recorded in the names of all the members of the joint family, which is the specific pleading of the defendant No.3/appellant.”  “2. Whether the learned Judges in the Courts below substantially erred in law in not considering the legal effect of the payment of rent by other than Mohan’s heirs, as appearing in the rent receipts being exhibit 2 series and B series as the same reflects the nature of the property as joint indicating purchase of Ka schedule suit property from the nucleus fund of the joint family and accordingly the judgment is perverse.”  A Supreme Court judgment, Sebastiao Luis Fernandes v. K.V.P. Shastri reported in (2013) 15 SCC 161, paragraphs 33 to 35, was referred by the learned advocate. It includes paragraph 35 that said Court relied on its earlier judgment in Hero Vinoth v. Seshammal reported in (2006) 5 SCC 545, wherefrom paragraph 24 was extracted and reproduced. Relying on clauses (ii) and (iii), the advocate submitted that the said clauses are the corresponding interpretations of notable questions of law which aroused in association out of disputable issues which include contentious issues regarding the joint family purchase of property and corresponding entries in RSROR. Originally, the suit was decreed. During the first appeal, a remand and an amendment were carried out. On 9th March 2000, the Trial Court by judgment again decreed the suit. The title and interest of plaintiffs and defendant no. 5 over ka’ schedule property, was declared. Defendant nos. 1 to 4 were permanently forbidden from meddling with their possession in respect of said schedule property. Partition in preliminary form in respect of 1/4th share in ‘kha’ schedule property was decreed for plaintiffs and defendant. The lower appellate Court upheld the judgment of the Trial Court. Bahadur Mahato was the owner of the ‘kha’ schedule property. The successor of Bahadur Mahato is plaintiffs and defendants. Defendant no. 5 are heirs of Jadu, another of the sons of Bahadur Mahato. Mohan had bought by deeds of 1928 and 1935, ‘ka’ schedule property. Eventually, the property and share of Mohan devolved upon Jadu. Consequently, their claim of 16 annas shares in ‘ka’ schedule property and 1/4th share in ‘kha’ schedule property. In the case of  Sebastiao Luis Fernandes (supra) there was dependence on Hero Vinoth (supra) for interpretation of fundamental questions of law meriting satisfaction of the High Court in admitting second appeals. In the case at hand plaintiffs relied on two deeds, of 1928 and 1935. No dispute regarding the deeds nor their interpretations were found. As stated, Mohan purchased those deeds, and his brother succeeded to his property and shares. Both Courts concurrently declared of the appellant, that the purchases made from the joint family fund, could not be proved. In the case of  Hero Vinoth (supra), Clause (ii) in paragraph 24 is an interpretation of a question of law on, inter alia, a debatable legal issue. The said debatable legal issue, in this case, is a claim of the title based on the record in RSROR, on disputation of joint family property. The Hon’ble High Court at Calcutta said “It is well settled, entry in record of rights gives rise to a rebuttable presumption of title because possession is many parts of title.” It was said by the lower appellate Court that disputes of purchases from the joint family fund were required or proof of the existence of the joint family. Another suggested question is based on the legal effect of payment of rent by other than Mohan’s descendants, to reflect upon the nature of the property as joint, indicating purchase of ‘ka’ schedule property from the core fund of joint family. The trial court dealt with the disagreements saying, inter alia, as follows: “At the time of argument, ld. advocate for the defendant no.3 made submission regarding possession of the suit property by defendant and in support of this he referred to some tax receipts. In this regard, it is settled proposition of law that tax receipts can not confer title to either of the parties. Hence, it is clear that plaintiffs have 1/4th share over the Kha schedule property.”  Thus Hon’ble High Court at Calcutta dismissed the case and held that “The trial Court has analysed the evidence and further evidence adduced on remand. Plaintiffs had the deeds by way of documentary evidence. Furthermore, their claim made, of them and defendant no. 5 having 1/4th share in ‘kha’ schedule property, stood admitted by appellant. Appellant’s assertion of purchase out of joint family fund could not be proved at trial. The lower appellate Court concurred. We are not satisfied that such findings give rise to a substantial question of law, either in relation to the issue decided or the findings being perverse”. Click here to read the judgment Judgment reviewed by Bipasha Kundu

IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE The Hon’ble Justice Arindam Sinha And The Hon’ble Justice Sugato Majumdar S.A.T. 21305 r Dasharath Mahato Vs Shrimati Rabani Mahato & Ors Mr. Rabindranath Mahato Adv Mr. Aritra Shankar Ray Adv 15th and 16th September 2021 16th September 2021 Arindam Sinha J.: Mr. Mahato learned advocate appears on behalf of appellant who was defendant no. 3 in the suit. He submits there were two scheduled properties in suit. One was ‘ka’ schedule property and the other ‘kha’ schedule property. Both were recorded as joint property in Revenue Survey Record of Rights 15 SCC 161 paragraphs 33 to 35. He submits in paragraph 35 said Court relied on its earlier judgment in Hero Vinoth v. Seshammal reported in5 SCC 545 wherefrom paragraph 24 was extracted and reproduced. He relies on clausesandin the extract He submits these clauses are respective interpretation on substantial questions of law arising in relation to contentious issue(s) and perversity. The questions suggested arise out of contentious issue regarding joint family purchase of property and corresponding entries in RSROR. We have perused the judgments. The suit was initially decreed. On first appeal there was remand and amendment carried out. The trial Court by judgment dated 9th March 2000 once again decreed the suit. Right title and interest of plaintiffs and defendant no. 5 over ‘ka’ schedule property was declared and defendant nos. 1 to 4 permanently restrained from interfering with their possession in respect of said schedule property. Plaintiffs and defendant no. 5 also got decree for partition in preliminary form in respect of 1 4th share in ‘kha’ schedule property. The lower appellate Court upheld judgment of the trial Court Bahadur was owner of ‘kha’ schedule property. Plaintiffs and defendants are descendants of Bahadur. Mohan was one of four sons of Bahadur. Plaintiffs say themselves and defendant no. 5 are heirs of Jadu another of the sons of Bahadur. Mohan had purchased by deeds of 1928 and 1935 ‘ka’ schedule property. Ultimately the property and share of Mohan devolved upon Jadu Hence their claim of 16 annas share in ‘ka’ schedule property and 1 4th share in ‘kha’ schedule property In Sebastiao Luis Fernandes there was reliance on Hero Vinoth for interpretation of what are substantial questions of law meriting satisfaction of the High Court in admitting second appeals Misconstruction of a document or wrong application of a principle of law in construing a document gives rise to a question of law Supreme Court said. In the case at hand plaintiffs relied on two deeds of 1928 and 1935. The deeds were of conveyance. On facts there was neither dispute regarding the deeds nor their interpretation. We have already stated about Mohan having purchased by those deeds and his brother Jadu succeeding to his property and share. Both Courts concurrently held that assertion of appellant of the purchases made from joint family fund could not be proved Clausein paragraph 24 of Hero Vinothis interpretation of a question of law on inter alia debatable legal issue. The urged debatable legal issue in this case is claim of title based on record in RSROR on contention of joint family property. It is well settled entry in record of rights gives rise to a rebuttable presumption of title because possession is many parts of title. This presumption was successfully rebutted by plaintiffs as concurrently held by both Courts below on reliance of said deeds of 1928 and 1935. Said Courts also found that the assertion by appellant of ‘ka’ schedule property purchased from joint family fund and thereby the entries in RSROR could not be proved by him. The lower appellate Court said contention that the purchases were made out of joint family fund required at least proof of existence of joint family even if no person was alive to competently depose in respect of the deeds of 1928 and 1935. It said further admission by a plaintiff witness of defendant no.3 having possession in ‘ka’ schedule property could not cloud title of plaintiffs in respect thereof. The admission would have mattered if said defendant had claimed title by adverse possession. The second suggested question is based on legal effect of payment of rent by other than Mohan’s heirs to reflect nature of the property as joint indicating purchase of ‘ka’ schedule property from the nucleus fund of joint family. The trial Court dealt with the contention saying inter alia as follows “At the time of argument ld. advocate for the defendant no.3 made submission regarding possession of the suit property by defendant and in support of this he referred to some tax receipts. In this regard it is settled proposition of law that tax receipts can not confer title to either of the parties. Hence it is clear that plaintiffs have 1 4th share over the Kha schedule property.” It appears the contention based on the rent receipts was not argued in the first appeal. The trial Court has analysed the evidence and further evidence adduced on remand. Plaintiffs had the deeds by way of documentary evidence Furthermore their claim made of them and defendant no. 5 having 1 4 th share in ‘kha’ schedule property stood admitted by appellant. Appellant’s assertion of purchase out of joint family fund could not be proved at trial. The lower appellate Court concurred. We are not satisfied that such findings gives rise to a substantial question of law either in relation to the issue decided or the findings being perverse. S.A.T. 21305 is dismissed.

In-Laws alleged of torture and keeping the informant hungry granted bail on the grounds of having no other criminal antecedents: High Court Of Patna

The petitioners were alleged of torture in the name of dowry demand and had kept the informant hungry for the non-fulfillment of demand of Rs.. 8 Lakhs. The Court granted them bail after considering the facts and circumstances. The Hon’ble High Court of Patna before Justice Mr. Ahsanuddin Amanullah in the matter Sanjay Kumar Singh and Ors. v. The State of Bihar and Ors[Criminal Miscellaneous No. 31105 of 2021]. The facts of the case were that the petitioner was apprehended arrest in connection with the Case, instituted under Sections 341, 323, 498A, 503/34 of the Indian Penal Code, 1860 and 4 of the Dowry Prohibition Act, 1961. It was alleged against the petitioner that they torture and didn’t give her food since she was not able to fulfill the demand of dowry of Rs. 8 Lakhs and further of attempting to kill her by poisoning as well assault. The Learned Counsel for the petitioner said and submitted that they have no role between the relationship of the husband and the wife and in the anticipatory bail filed by the husband of the informant, who is the son of petitioner no. 2 and brother of petitioner no. 3, the Court had ordered for no coercive steps against him and he has taken the opposite party no. 2 with him and she is living in the matrimonial home. It was further submitted that petitioners have no other criminal antecedent. The Additional Public Prosecutor of the State contended that the petitioners are the in-laws and family of the informant and hence are equally liable as the husband of the informant. The Hon’ble High Court Of Patna held,” Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, in view of the petitioners being the in-laws and having no criminal antecedent and the husband of the informant having taken her to the matrimonial home where she is living, the Court is inclined to allow the prayer for pre-arrest bail.” The petition was disposed of on the said terms of bail.

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 311021 Arising Out of PS. Case No. 21 Year 2021 Thana DIGHWARA District Saran Sanjay Kumar Singh aged about 54 years Male Son of Late Chandeshwar Rekha Devi aged about 49 years Female Wife of Sanjay Kumar Singh Both residents of Village Dighwara PS Dighwara District Saran at Puja Devi aged about 30 years Female Wife of Rajesh Kumar Singh Daughter of Sanjay Kumar Singh Resident of Village Rasalpura PS Doriganj District Saran at Chhapra ... Petitioner s The State of Bihar Puja Devi aged about 26 years Wife of Sandeep Kumar Singh Daughter of Ravi Ranjan Singh Residing at Present at Village Ekauna Post + PS Punpun District Patna ... Opposite Party s For the Petitioner s For the State Mr. Anil Kumar Sinha Advocate Mr. Md. Arif APP CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 08 10 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 which was 3. Heard Mr. Anil Kumar Sinha learned counsel for the petitioners and Mr. Md. Arif learned Additional Public Prosecutor hereinafter referred to as the ‘APP’) for the State Patna High Court CR. MISC. No.311021 dt.08 10 2021 4. The petitioners apprehend arrest in connection with Dighwara PS Case No. 221 dated 25.01.2021 instituted under Sections 341 323 498A 503 34 of the Indian Penal Code 1860 and 4 of the Dowry Prohibition Act 1961 5. The petitioner no. 1 is the father in law petitioner no 2 is mother in law and petitioner no. 3 is the married sister in law Nanad) of the informant opposite party no. 2 6. The allegation against them is of torture and not giving her food on account of non fulfillment of demand of dowry of Rs. 8 lakhs and thereafter of assault and ouster from the matrimonial home and further of attempting to kill her by poisoning as well as assault 7. Learned counsel for the petitioners submitted that they have no role between the relationship of the husband and the wife and in the anticipatory bail filed by the husband of the informant who is the son of the petitioner no. 2 and brother of petitioner no. 3 the Court had ordered for no coercive steps against him and he has taken the opposite party no. 2 with him and she is living in the matrimonial home. It was further submitted that petitioners have no other criminal antecedent 8. Learned APP submitted that the petitioners being the in laws of the informant are equally responsible for such torture Patna High Court CR. MISC. No.311021 dt.08 10 2021 9. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties in view of the petitioners being the in laws and having no criminal antecedent and the husband of the informant having taken her to the matrimonial home where she is living the Court is inclined to allow the prayer for pre arrest bail 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 IX Saran at Chapra in Dighwara PS Case No. 21 of 2021 subject to the conditions laid down in Section 438(2) of the Code of Criminal Procedure 1973 and further that one of the bailors shall be a close relative of the petitioners that the petitioners and the bailors shall execute bond and give undertaking with regard to good behaviour of the petitioners and that they shall co operate with the Court and police prosecution. Any violation of the terms and conditions of the bonds or the undertaking or failure to co operate shall lead to cancellation of their bail bonds 11. It shall also be open for the prosecution to bring any violation of the foregoing conditions by the petitioners to the Patna High Court CR. MISC. No.311021 dt.08 10 2021 notice of the Court concerned which shall take immediate action on the same after giving opportunity of hearing to the petitioners 12. The petition stands disposed of in the (Ahsanuddin Amanullah J

Mere discussion or knowledge can’t be accounted for Criminal Conspiracy. : Jharkhand High Court

It is necessary to show a meeting of minds between two or more people in order to conduct or cause to be done an illegal act or an act by illegal means in order to be charged with criminal conspiracy. The offence occurs with the mind even if nothing else is done. It is a crime that is separate and punishable by other offences, this was referred by Justice Anubha Rawat Choudhary of the Jharkhand High Court in the matter of Ram Kumar Mehta s/o Late Dhupan versus State of Jharkhand [ Cr. Rev. No. 161 of 2012 ] This order was passed when the only allegation against the petitioner, according to learned senior counsel for the petitioner, is that the petitioner, as the principal of the school, allowed one call to be received by the victim boy (age 13 years), claiming that the call was from his maternal uncle (mama), after which the victim boy left the school and went to his house, and then proceeded furiously. Apart from that, the learned Senior Counsel contends, there is no other evidence against the current petitioner. It is undeniable that, according to the current case documents, the boy has yet to be found. The learned Senior Counsel also argued that there is a distinction between “suspicion” and “grave suspicion,” and that the petitioner’s motion for release was denied despite the fact that the petitioner was merely charged on suspicion and there is no evidence linking him to the alleged crime. He has cited a Supreme Court decision [Gulam Sarbar Vs. State of Bihar (Now Jharkhand)] on the basic ingredients for the crime of criminal conspiracy, which is reported in (2014) 3 SCC 401 [Gulam Sarbar Vs. State of Bihar (Now Jharkhand)]. While opposing the prayer, learned counsel appearing on behalf of the opposing party as the State has stated that the impugned order is a detailed order stating the documents obtained throughout the investigation. He also contends that the absence of a specific reference to the paragraph number of the case diary is insufficient to establish that the impugned order is a non-speaking order. He also claims that this Court ordered the case diary, which is on file, and that the conclusions of the learned court below reflect the materials acquired during the investigation and recorded in the case diary, as well as the counter affidavit filed in this matter. On hearing both sides court referred to the case of  Mohd. Amin v. CBI that knowledge of the overall object/purpose of the conspiracy is sufficient for this section, and that the accused does not need to know the exact steps of the plot. In Vikram Singh v. State of Punjab, this Court dealt with a case in which the accused bought Fortwin injection and chloroform. Thus, because the purchase of these materials was a prelude to the commission of the crime, the presence of co-accused Sonia, though not mentioned by witnesses at the time of the kidnapping, did not imply that she was not aware of the conspiracy, and the accused’s conviction under Section 120-B IPC was upheld.

Ram Kumar Mehta Son Of Late Dhupan ... vs The State Of Jharkhand on 28 June 2021 Jharkhand High Court Ram Kumar Mehta Son Of Late Dhupan ... vs The State Of Jharkhand on 28 June 2021 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Rev. No. 1612 Ram Kumar Mehta son of Late Dhupan Ram resident of village Madwania P.O. and P.S. Nagaruntari District: Garhwa ... ... Petitioner Versus The State of Jharkhand ... ... Opposite Party CORAM :HON BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Petitioner : Mr. A. K. Kashyap Senior Advocate Mr. Anurag Kashyap Advocate For the State Mr. Bishwambhar Shastri A.P.P Through Video Conferencing 14 28.06.2021 Heard learned Senior counsel for the petitioner Mr. A. K Kashyap Senior Advocate along with Mr. Anurag Kashyap learned counsel appearing on behalf of 2. Heard Mr. Bishwambhar Shastri learned A.P.P. appearing on behalf of the opposite party State 3. The present application is directed against the order dated 09.02.2012 passed by learned Additional Sessions Judge II nd Garhwa in connection with S.T. No. 610 arising out of Dhurki P.S. Case No. 107 corresponding to G.R. Case No. 1507 registered under Sections 364 120 B of Indian Penal Code whereby the petition filed by the petitioner for his discharge has been rejected Arguments on behalf of the petitioner 4. Learned Senior counsel for the petitioner further submits that the only allegation against the petitioner is that the petitioner being the principal of the school had permitted one call to be received by the victim boysaying that the phone call was of his maternal uncle mama) pursuant to which the victim boy had left the school and went to his house and thereafter proceeded further. The learned Senior counsel submits that apart from this there is no further Indian Kanoon Ram Kumar Mehta Son Of Late Dhupan ... vs The State Of Jharkhand on 28 June 2021 material against the present petitioner. It is not in dispute that as per the present records of this case the boy has not yet been recovered 5. The learned Senior counsel submits that initially final form was filed showing lack of evidence against the petitioner and other accused but subsequently the learned court below had taken cognizance of the offence. He also submits that the order taking cognizance was challenged before this Court in Cr.M.P. No. 13709 but subsequently when the matter proceeded before the learned court below the petitioner filed an application for discharge which stood rejected by the impugned order and accordingly the Cr.M.P. No. 13709 was dismissed as infructuous by this Court vide order dated 13.04.2021 6. The learned Senior counsel for the petitioner further submits that upon perusal of the impugned order dated 09.02.2012 it is apparent that the learned court has not applied its mind to the materials on record and the impugned order is a non speaking order in as much as the relevant paragraphs of the case diary have not been specifically referred to in the impugned order. The learned Senior counsel submits that the impugned order being non speaking order the matter is fit to be remanded back to the learned court below for fresh consideration of the materials on record 7. The learned Senior counsel has also submitted that there is a difference between suspicion and grave suspicion and the application for discharge of the petitioner has been rejected although the petitioner has been made accused only on mere suspicion and there is no material against the petitioner as such to connect him with the alleged offence. He has referred to a judgement passed by the Hon ble Supreme Court reported in3 SCC 401(paragraph 11 to 24) on the point of basic ingredients for the offence of criminal Arguments on behalf of the opposite party State 8. The learned counsel appearing on behalf of the opposite party State on the other hand while opposing the prayer has submitted that the impugned order is detailed order indicating the materials collected during investigation. He also submits that merely because the paragraph number of the case diary has not been specifically referred to the same is not sufficient to say that the impugned order is a non speaking order. He has also submitted that the case diary was also called for by this Court which is on record and the findings of the learned court below match with the materials collected during investigation and recorded in the case diary. The learned counsel refers to the counter affidavit filed in the present case 9. The learned counsel for the State also submits that the petitioner is involved in criminal conspiracy which may not have direct evidence against him and it is for the petitioner to face the trial and only at the end of the trial the evidences would indicate as to whether the petitioner has committed any offence or not. He submits that it is premature to say that the petitioner has no role to play in the alleged offence. He also submits that the subsequent conduct of the petitioner as recorded in the case diary is also indicative of the fact that the petitioner is involved in the alleged offence. Findings of this Court Indian Kanoon Ram Kumar Mehta Son Of Late Dhupan ... vs The State Of Jharkhand on 28 June 2021 10. After hearing the learned counsel for the parties this Court finds that it is not in dispute that the prosecution case was initiated on the basis of fard beyan of one Baleshwar Prasad Yadavrecorded on 26.02.2007 stating inter alia that he was working as Shiksha Mitra in Utkramik Madhya Vidyalaya and on 23.02.2007 he had gone to Nagaruntari with his daughter who had to appear in matriculation examination. When he returned in the evening at about 4 p.m. his wife informed him that his son had gone to school and on the mobile of the petitioner Mama of his son called him to Ramana. Thereafter his son came to the house at 11.45 a.m. and informed his mother that the phone call of elder Mama had come at mobile of the petitioner who called him to Ramana thereupon the wife of the informant had given one KG Mahua to sell in the market. It was alleged that the son of the informant namely Dipak did not return in the night and the informant thought that he might have remained in the house of his Mama. Next day when the informant again went for examination of his daughter and returned in the evening he was informed that younger Mama had come and told that Dipak had not gone to the house of Mama and then the informant went to Ramana and inquired from the people. Thereafter the informant asked the petitioner who told him that on 23.02.2007 in between 11 a.m. to 12 hours call had come at his mobile and he gave the mobile to Dipak who had a talk and told that Mama had called him to Ramana. It is also alleged that when the phone number was demanded from the petitioner from which the call was made he replied that the same was deleted. The informant has also stated that in spite of search his son could not be found. The informant alleged that his son was called for the purposes of murder and he was kidnapped. The mobile number of the petitioner was also mentioned in the First Information Report It was alleged in the First Information Report that there was land dispute between Rambadan Yadav and Mithu Yadav for which Panchayati was held in which informant had participated as Panch of Rambadan Yadav upon which Mithu Yadav threatened of dire consequences due to which suspicion was raised against Mithu Yadav 11. During the course of investigation the petitioner was interrogated by police and the police submitted final form being Final Form No. 908 dated 31.12.2008 showing the case true. It was also recorded in final form that no clue could be found regarding the whereabouts of the son of the petitioner and the final form was submitted under Section 364(A) of Indian Penal Code. The final form indicated lack of evidence against both the arrested persons i.e. the petitioner and Sunil Kumar Singh and it also indicated that the investigation was closed 12. In spite of submission of final form showing lack of evidence against the petitioner the learned trial court had found material inter alia against the petitioner and took cognizance of the offence under Section 364 120 B of the Indian Penal Code against the petitioner and others. The order taking cognizance was challenged by the petitioner in Cr.M.P. No. 13709. The said criminal miscellaneous petition remained pending before this Court and the learned court below proceeded Accordingly the petitioner filed application for his discharge which stood rejected by the impugned order in the present case. On account of subsequent development the Cr.M.P . No. 13709 was dismissed as infructuous by this Court vide order dated 13.04.2021 Indian Kanoon Ram Kumar Mehta Son Of Late Dhupan ... vs The State Of Jharkhand on 28 June 2021 13. The main point argued by the learned Senior counsel for the petitioner is that the impugned order does not reflect application of mind by the learned court below and is a non speaking order which does not mention any paragraph of the case diary and accordingly the application for discharge requires fresh consideration. It has also been argued by the learned Senior counsel that the petitioner has been made accused merely on the basis of suspicion and there is no material against the petitioner to connect him with the alleged offence 14. On the other hand it has been submitted by the learned counsel for the State that the impugned order is a detailed order indicating the materials collected during investigation. It has also been submitted that though the paragraph numbers of the case diary have not been specifically mentioned in the impugned order but that by itself does not make an impugned order non speaking. It has also been submitted on behalf of the State that case diary has been called for and upon perusal of the case diary it is apparent that the impugned order is based on materials collected during investigation and the relevant paragraphs have been specifically mentioned in the counter affidavit. It has also been submitted that the present case is a case of criminal conspiracy and there is enough material to draw strong circumstantial evidence against the petitioner which is enough to frame charge. He has also submitted that there may be direct or indirect evidences in the matter of criminal conspiracy and conspiracies are hatched secretly 15. It is not in dispute that the victim boy was 13 years of age on the date of occurrence. Upon perusal of the impugned order dated 09.02.2012 this Court finds that the learned court below has perused the records and the case diary. It has been recorded in the impugned order that the petitioner was the head master of the school in which the victim boy namely Dipak was studying who is the son of the informant. The aforesaid aspect of the matter is not in dispute. It has also been mentioned in the impugned order that the petitioner told Dipak that his Mama was calling him on mobile and consequently Dipak talked through mobile and went to his house. He told his mother that his Mama was calling him at Ramana and her mother gave one KG of Mahua to be sold in the market. The victim went on his bicycle and did not return. It has been recorded by the learned court below that on perusal of the case diary it appeared that the informant had asked the accused as to what was the number from which the phone call had come and the petitioner told that the number had disappeared. It has further been recorded that when the investigating officer of the case on 24.02.2007 asked him about the number he told that the number had disappeared because in his mobile only last ten calls remain for identification. It has also been recorded that when the C.D.R print out of the mobile number of the petitioner was taken it revealed that there were only six calls received from 23.02.2007 to 24.02.2007 and the caller ID of the phone call involved in the present case was available in the mobile of the petitioner but he did not disclose the same to the police or the informant for the reasons best known to him. The learned court below also took into consideration that further evidence collected and recorded in the case diary indicated that after the victim departed for Ramana Bazar the petitioner went to Ramana Bazar by his motorcycle leaving the school on a working day. It has also come during investigation that when the phone of the petitioner was seized the investigating officer had received a call on the mobile of the petitioner which was a call from another phone number mentioned in the impugned order in which the caller told to tell the informant not to go here and there and pay Rs. 2 lakhs and the caller did not disclose his name to the investigating officer even when the investigating officer asked him as to who was Indian Kanoon Ram Kumar Mehta Son Of Late Dhupan ... vs The State Of Jharkhand on 28 June 2021 The learned court below considering the aforesaid facts and circumstances was of the view that the person was contacting the present petitioner who had kidnapped the victim boy. From the C.D.R print out of the mobile number of the petitioner taken out by the Investigating Officer it revealed that one Sunil Kumar Singh had called on the mobile of the petitioner but the petitioner did not tell about him. Though another call was also received by the petitioner from Sunil Kumar Singh and when Sunil Kumar Singh was interrogated by the investigating officer he was found having 16. This Court finds that though specific references to the various paragraphs to the case diary have not been mentioned in the impugned order but the gist mentioned in the impugned order is reflected in the case diary and the counter affidavit gives specific reference to the relevant paragraphs of the case diary. In the aforesaid circumstances this Court is of the view that the impugned order cannot be said to be non speaking merely because the specific paragraphs have not been mentioned in the impugned order refusing to discharge the petitioner. This Court is of the view that the materials collected during investigation and mentioned in the impugned order reveal strong suspicion against the petitioner against whom criminal conspiracy is alleged in the commission of offence. There can be no doubt that it is very difficult to get direct evidence in case of criminal conspiracy and there could be indirect evidences circumstantial evidences to convict an accused This Court is of the considered view that the materials which are reflected in the impugned order are sufficient to frame charge against the petitioner. The involvement of the petitioner is certainly to be proved beyond all reasonable doubts by the prosecution during trial and the materials on record certainly constitute strong suspicion against the petitioner which are sufficient to frame charge against the petitioner 17. In the judgement passed by the Hon ble Supreme Court reported in3 SCC 401the matter was under consideration after trial of the accused. The Hon ble Supreme Court considered the basic ingredients of conspiracy in para 11 and ultimately dismissed the appeal by holding at para 23 that the High Court rightly observed that normally the perpetrator of crime in a case of conspiracy does not take part in the execution rather such conspirator hires some criminal directly or indirectly to execute the evil design planned by him There may be circumstances where the conspirator remains vigilant to conceal his identity and would not disclose the actual motive behind the conspiracy. Paragraphs 11 12 and 23 of the aforesaid judgement are quoted as under : "11. The essential ingredients of criminal conspiracy are i) an agreement between two or more persons ii) agreement must relate to doing or causing to be done either a) an illegal act or b) an act which is not illegal in itself but is done by illegal means Indian Kanoon Ram Kumar Mehta Son Of Late Dhupan ... vs The State Of Jharkhand on 28 June 2021 What is therefore necessary is to show meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means. Mere knowledge or discussion or generation of a crime in the mind of the accused is not sufficient to constitute an offence. The offence takes place with the meeting of minds even if nothing further is done. It is an offence independent of other offences and punishable separately. Thus the prosecution is required to establish the offence by applying the same legal principles which are otherwise applicable for the purpose of proving criminal misconduct on the part of an accused. Criminal conspiracy is generally hatched in secrecy thus direct evidence is difficult to obtain or access. The offence can be proved by adducing circumstantial evidence or by necessary implication. Meeting of minds to form a criminal conspiracy has to be proved by adducing substantive evidence in cases where circumstantial evidence is incomplete or vague. The gist of the offence of conspiracy then lies not in doing the act or effecting the purpose for which the conspiracy is formed nor in attempting to do them between the parties. Agreement is essential.StatePankaj Indian Kanoon

It is the quality of evidence that is of relevance, not the number of witnesses: Supreme Court of India

‘The failure to examine any available independent witness is inconsequential. It is the quality of the evidence and not the number of witnesses that is relevant.’ This unassailable principle was upheld by the Supreme Court of India in the Special leave petition (Crl.) presided over by J. R.F. Nariman and J. Navin Sinha in the case of Asharam Tiwari vs. State of Madhya Pradesh [Crl.A. No. 29/2021]. In this instance, the appellant had been convicted for the murder of two and assaulting three persons along with three co-accused. The genesis of the occurrence lay in the purchasing of land by the deceased from appellant’s father. The appellant along with co accused armed with weapons, barged into their land premises demanding it back and on refusal, committed offence under section 302, 324, 325 and 323 r/w 34 of Indian Penal Code, 1860. The appellant contended that at the time of the occurrence of crime, he possessed a lathi whereas the co accused were armed with country made pistols and therefore had no common intention with the other three accused. Further the credibility of the witnesses was questioned by the appellant as all the witnesses were the family members of the deceased.

The appellant A2 assails his conviction and sentence under Sections 302 34 324 34 325 34 and 323 IPC to life imprisonment and lesser punishments. Four accused persons were put on trial the appellant being one of them for an occurrence that took place on 23.10.2006 at about 4.00 pm. Two persons were deceased and three injured Accused no. 3 and accused no. 4 who are not before us have The genesis of the occurrence lay in certain lands purchased by PW­1 from the father of the appellant. Peeved and assaulted PW­1 his wife PW­4 their 12 years old son Ramashankar who was deceased within twenty four hours during course of treatment and their minor daughter. The Ramdas the brother of PW­1 and shot him dead in presence possessed of a lathi only. Two of the co­accused A3 and A4 were armed with a country­made pistol and an axe assault with lathis is omnibus. It cannot be said with has been implicated at the behest of the village sarpanch His defence of alibi has not been considered properly. All three witnesses being related false implication is evident because none of the independent witnesses have been examined. The defence of the appellant under Section 313 the lands all of them assaulted PW­1 PW­4 their daughter appellant was well aware of the co­accused carrying a 6. We have considered the submissions on behalf of the The appellant was unhappy that his father had sold lands to PW­1 and wanted them back. The four accused PW­4 and her two children came to the rescue of PW­1 Ramashankar on the head with the blunt edge and sharp edge of an axe respectively. The appellant and A1 also the second deceased Ramdas the brother of PW­1. Accused The post­mortem report of the deceased Ramdas i. Contusion 8x6 cm on right arm (inflicted with ii. Contusion 6x5 cm in mid of left arm (inflicted the right brow (inflicted with hard and blunt 4x2 cm injury which was stitched on the right both been found to be reliable and truthful. We see no reason why they would falsely implicate another when the deceased was their own minor son. Similarly PW­2 is the son of the second deceased an eye witness to the killing of his father at home. The failure to examine any available the evidence and not the number of witnesses that is then immediately proceeded to the house of the second The recovery of a bloodstained lathi and bloodstained clothes of the appellant on his confession leaves us satisfied on a cumulative appreciation of the evidence that the accused were actuated by a common intention. The conviction of the appellant therefore calls for that he is 72 years old. Notwithstanding our refusal to interfere with the conviction and sentence if the appellant makes an application for premature release it is for the

Rape case quashed filed by the minor wife- Gujarat HC

In the case of Gajraj Ramabhai Hajani Thro Ramabhai Pithabhai Hajani v. State of Gujarat, (R/CRIMINAL MISC.APPLICATION NO. 12832 of 2020) the high court of Gujarat had quashed the rape case against a boy filed by the minor wife, rather the court had held the parents responsible for the concerned acts, for ruining their childhood by dragging them in such a disreputable controversy, thus the cost imposed shared equally between them. The facts of this case initiate by filing the captioned application, the petitioner – accused, a “minor”, is seeking the invocation of powers of this Court under the provision of section 482 of the Code of Criminal Procedure, 1973 (for short “the Cr.P.C.”) for quashing of the FIR being C.R. No.11202057200329 dated 19.08.2020 registered with Sikka Police Station, District: Jamnagar for the offences punishable under section 376 of the Indian Penal Code, 1860 and sections 4 and 12 of  The Protection of Children from Sexual Offences (POCSO) Act, 2012 (for short “the POCSO Act”). Interestingly, the FIR is lodged at the instance of his  “minor” wife. By the  F.I.R. dated 19.08.2020, the prosecutrix indicates that she got married to the petitioner- accused on 07.02.2015 at the age of 11 years. Her date of birth recorded in the F.I.R. is 06.01.2004. The F.I.R. also states that she was forced to maintain a physical relationship by her husband against her wishes after 2016 when she was taken to her in-law’s house. Thus, a girl of 11 years of age was married to the accused by her parents, who was a minor of 17 years of age and was in a forceful physical relationship on account their parent’s wishes and desires.  On the registration of the F.I.R., the prosecutrix was produced before the 7th Additional Judicial Magistrate, Jamnagar for the recording of her statement under section 164 of the Cr.P.C. This Court has perused her statement, in which she has specifically admitted that she was married to the accused and thereafter she was forced to maintain physical relationship with him after 2017. The investigation also revealed the established fact that the parents had solemnized the marriage of the accused and prosecutrix when they were minor on 07.02.2015. It is also informed by the learned APP that the proceedings under the Prohibition of Child Marriage Act, 2006 have also been initiated. She has further submitted that the present FIR may not be quashed on the ground of settlement. Reliance is placed by her on the judgement reported in the case of State of Madhya Pradesh V/s. Laxmi Narayan, reported in (2019) 5 SCC 688. The court states that “It also appears that the FIR is lodged at the behest of the parents invoking provisions of serious offences. The petitioner, a minor is embroiled in the serious offence of rape by the prosecutrix at the behest of her parents without realizing the consequences. In her tender age the prosecutrix is also made to understand the immorality and dire consequence of offence of rape.  The childhood of both the petitioner and the prosecutrix is obliterated by their parents, on two counts, first by marrying them in tender age, and secondly, by involving them in the offence of rape.  The facts are suggestive that the minors are used as weapons in order to satisfy their prejudices and egos. The prosecution is lodged taking shelter under the minority of the prosecutrix. The quashing of the F.I.R. is sought by citing the minor age and marriage of the petitioner.” The court, in this case, had held that “This Court is of the opinion that the criminal machinery alleging such serious offences under I.P.C and POCSO cannot be allowed to be misused and the parents of such children who resort such tactics cannot be let-off easily without fastening any accountability. Sufficient time has been devoted by the investigating authority in conducting the investigation. The prosecutrix was also produced before the concerned Magistrate. A great deal of time is consumed of this Court including the registry. Hence, in order to avoid such misuse of the penal provisions, I am of the considered opinion that the time is ripe to fasten the liability for sheer wastage of time of State and the Court. Hence, I consider appropriate to impose a cost of Rs.30,000/- . It shall be deposited before the Registry of this Court. The Registry shall further transfer the amount to the Gujarat High Court Legal Service Committee.  Since the parents of both the prosecutrix and the petitioner are responsible for ruining their childhood by dragging them in such a disreputable controversy, the cost shall be shared by them equally.” “In order to see that the relationship between the families does not further deteriorate and the life of both the petitioner and the prosecutrix is maintained smoothly and effortlessly, the impugned FIR and the subsequent proceedings arising therefrom are hereby quashed and set aside in view of the settlement arrived at between the concerned parties. This Court is conscious of the decision of the Apex Court in the case of State of Madhya Pradesh V/s. Laxmi Narayan (supra). The law enunciated by the Apex Court is not applicable to the facts of the present case. Hence, the submissions advanced by the learned APP are rejected. The petition stands allowed. RULE is made absolute accordingly”

on : Fri Oct 23 16:00:08 IST 2020 R CR.MA 12832 2020 JUDGMENTIN THE HIGH COURT OF GUJARAT AT AHMEDABADR CRIMINAL MISC.APPLICATION NO. 128320 FOR APPROVAL AND SIGNATURE: HONOURABLE MR. JUSTICE A.S. SUPEHIASd ================================================================1 Whether Reporters of Local Papers may be allowed to see thejudgment YES2 To be referred to the Reporter or not YES3 Whether their Lordships wish to see the fair copy of thejudgment NO4 Whether this case involves a substantial question of law as tothe interpretation of the Constitution of India or any order madethereunder NO================================================================GAJRAJ RAMABHAI HAJANI THRO RAMABHAI PITHABHAI HAJANI VersusSTATE OF GUJARAT ================================================================Appearance:MR PREMAL S RACHH(3297) for the Applicant(s) No. 1MS SHRUTI PATHAK APP(2) for the Respondent(s) No. 1MR PRATIK Y JASANI(5325) for the Respondent(s) No. 2================================================================CORAM: HONOURABLE MR. JUSTICE A.S. SUPEHIA Date : 20 10 2020 ORAL JUDGMENT(1)RULE. Learned advocates appearing on behalf of respectiveparties waive service of notice of rule on behalf of therespective respondents.for quashing of thePage 1 of 6 on : Fri Oct 23 16:00:08 IST 2020 R CR.MA 12832 2020 JUDGMENTFIR being C.R. No.11202057200329 dated 19.08.2020registered with Sikka Police Station District: Jamnagar for theoffences punishable under section 376 of the Indian PenalCode 1860and sections 4 and 12 of TheProtection of Children from Sexual OffencesAct 2012against her wishes. It appears that as a counter blastto the aforesaid the present F.I.R. is lodged. The prosecutrix who was 11 years of age was married to the petitioner accused of 17 years of age on 07.02 2015. She used to visither in laws occasionally. After four years of marriage it isalleged that the petitioneraccused has forced her to developphysical relationship. As on today both are minors. Theparents of the prosecutrix were well aware of all theconsequences of getting her married at the age of eleven.Uniformly the parents of the petitioner are also responsible.Both the parents have imprisoned the minors in marriage andforced them to develop relationship of husband and wife whichis a gross violation of their human rights. They are forced bythe parents to face the rigors of married life at the tender agedespite their being a prohibition under the law. Thus thegenesis of the impugned FIR lies in the child marriagearraigned by the respective parents. It also appears that theFIR is lodged at the behest of the parents invoking provisionsof serious offences. The petitioner a minor is embroiled in thePage 4 of 6 on : Fri Oct 23 16:00:08 IST 2020 R CR.MA 12832 2020 JUDGMENTserious offence of rape by the prosecutrix at the behest of herparents without realizing the consequences. In her tender agethe prosecutrix is also made to understand the immorality anddire consequence of offence of rape. The childhood of boththe petitioner and the prosecutrix is obliterated by theirparents on two counts first by marrying them in tender age and secondly by involving them in the offence of rape. Thefacts are suggestive that the minors are used as weapons inorder to satisfy their prejudices and egos. The prosecution islodged taking shelter under the minority of the prosecutrix. Thequashing of the F.I.R. is sought by citing the minor age andmarriage of the petitioner.SCC 475) “Law of this land hasalways recognised the rights of parents with theirwards minors and first and foremost consideration of the Courtis "welfare of the children" which overrides the views oropinions of the parents.”Sd .[A. S. SUPEHIA J] NEHA GUPTA BhaveshPage 6 of 6

Complaints against a government officer and information unavailable in records cannot be furnished under RTI: SEBI

Requested information can be exempted from disclosure under section 8(1)(j) of the RTI Act since it comes under personal information and does not relate to any public activity. Disclosure of such information would amount to invasion of privacy of the concerned individual. If any public authority does not have the required information, the authority is not obligated to find, collect or collate such information and give it to the applicant. This was observed in the matter of Mohit Kumar v. CPIO, SEBI, Mumbai, [Appeal No. 4499 of 2021] before Mr. Anand Baiwar. The matter involves an appeal by under the RTI Act, 2005, as the appellant was not pleased with response given by the respondent. The first query involved providing certified photocopies of the register of complaints received, showing complaints against the staff/officers from 1992 till now. The second query was w.r.t complaints against staff/officers/promoters of SEL Manufacturing Co. Ludhiana. In response to the first query, since the information sought came under section 8(1)(j) it was disclosed. The Appellate Authority relied on Manoj Arya v. Cabinet Secretariat ( Order Dated 26th June, 2013) which held that complaints made against government officers are personal and has no relation to public interest. The same was reiterated in Giri R Deshpande v. CIC and Ors (SLP (C) No. 27734 of 2012) and Mohammad Iqbal Soharatali Ansari v. CPIO & GM (BSNL) (order dated 3rd August, 2015). With respect to the second query, it was informed by the Respondent that such information is not available with the SEBI but the Resolution Plan of the company was accessible by the public. The Appellate Authority referred to CBSE & Anr v. Aditya Bandhopadhyay (dated August 9th, 2011), Pattipatti Rama Murthy v. CPIO, SEBI (Dated 8th July, 2013) wherein it was held that if information is unavailable, there is no responsibility of the public authority to provide such information. In light of the same, the Appellate Authority held that, “the requested information is exempt from disclosure under Section 8(1)(j) of the RTI Act. Further, I note that the appellant has not established that the information sought is for larger public purpose. Accordingly, I do not find any deficiency in the response…..the information sought by the appellant was not available with SEBI and therefore, the respondent cannot be obliged to provide such non–available information….. In view of the same, I do not find any merit in the submission of the appellant. Accordingly, the same does not warrant consideration at this stage……..There is no need to interfere with the decision of the respondent. The Appeal is accordingly dismissed”.

Appeal No. 44921 BEFORE THE APPELLATE AUTHORITY Under the Right to Information Act 2005) SECURITIES AND EXCHANGE BOARD OF INDIA Appeal No. 44921 Mohit Kumar CPIO SEBI Mumbai The appellant had filed an application dated September 04 2021 under the Right to Information Act 2005 The appellant vide query number 1(a) of his application dated September 04 2021 sought certified photocopies of complaint received register showing entries related to complaints received from 1992 till now against staff officers of SEBI head office Mumbai. The respondent in response to query number 1(a) observed that the requested information is exempt from disclosure under Section 8(1)(j) of the RTI Act since the same relates to personal information the disclosure of which has no relationship to any public activity or interest and may cause invasion into the privacy of the individual. The appellant in his appeal submitted that common citizens can take copies of complaint received register. I have perused the query and the response provided thereto. I note that the appellant has sought copy of complaint received register dealing with complaints received against staff officers of SEBI Head Office Mumbai. In this context the Coordinate bench of CIC in the matter of Manoj Arya vs. Cabinet Secretariat Appeal No. 44921 Order dated June 26 2013) has held: “ 4. We have carefully gone through the contents of the RTI application and the order of the Appellate Authority. We have also considered the submissions of both the respondent and the third party in the case. The entire information sought by the Appellant revolves around the complaints made against an officer of the government and any possible action the authorities might have taken on those complaints. The Appellate Authority was very right in deciding that this entire class of information was qualified as personal information within the meaning of the provisions of Section 8(j) of the RTI Act. In this connection it is very pertinent to cite the decision of the Supreme Court of India in the SLP(C) No. 277312in which it has held that “the performance of an employee Officer in an organisation is primarily a matter between the employee and the employer and normally those aspects are governed by the service rules which fall under the expression personal information the disclosure of which has no relationship to any public activity or public interest. On the other hand the disclosure of which could cause unwarranted invasion of the privacy of that individual” The Supreme Court further held that such information could be disclosed only if it would serve a larger public interest. The information sought by the Appellant in this case is about some complaints made against a government official and any possible action the authorities might have taken on those complaints. It is thus clearly the kind of information which is envisaged in the above Supreme Court order. Therefore the information is completely exempted from disclosure under the provisions of the RTI Act which both the CPIO and the Appellate Authority have rightly cited in their respective orders.” Further the Hon’ble CIC in the matter of Mohmad Iqbal Soharatali Ansari vs. CPIO & GM(order dated August 03 2015) relied on the ratio of the above cited decision of the Hon’ble Supreme Court and observed that information relating to complaints against public servants and action taken thereon is exempted under Section 8(1)(j) of the RTI Act unless larger public purpose is demonstrated. In view of these observations I am of the opinion that the requested information is exempt from disclosure under Section 8(1)(j) of the RTI Act. Further I note that the appellant has not established that the information sought is for larger public purpose. Accordingly I do not find any deficiency in the response. 6. Query number 1(b) The appellant vide query number 1(b) of his application sought certified photocopies of complaint received register showing entries related to complaints received from 1992 till now against staff officers promoters of SEL Manufacturing company Ludhiana whose Capital has been announced to be reduced the respondent informed that information sought is not available with SEBI with regard to complaints against staff officers promoters of SEL Manufacturing Company. However it was informed that the resolution plan of SEL Manufacturing Company Ltd. was Appeal No. 44921 approved by the Hon’ble NCLT Chandigarh Bench under Section 31 of the Insolvency and Bankruptcy Code 2016. The respondent also informed that the order dated February 10 2021 was available in the public domain. I have perused the query and the response provided by the respondent. I do not find any reason to disbelieve the observation that the requested information is not available with SEBI. In this context I note that the Hon’ble Supreme Court of India in Central Board of Secondary Education & Anr. vs. Aditya Bandopadhyay & Orsheld that “ ….But where the information sought is not a part of the record of a public authority and where such information is not required to be maintained under any law or the rules or regulations of the public authority the Act does not cast an obligation upon the public authority to collect or collate such non available information and then furnish it to an applicant.” Further I note that the Hon’ble CIC in the matter of Sh. Pattipati Rama Murthy vs. CPIO SEBIheld: “… if itdoes not have any such information in its possession the CPIO cannot obviously invent one for the benefit of the Appellant. There is simply no information to be given.” In view of these observations I find that the information sought by the appellant was not available with SEBI and therefore the respondent cannot be obliged to provide such nonavailable information. 9. Notwithstanding the same I note that the respondent has informed regarding the approval of the resolution plan of SEL Manufacturing Company Ltd. and availability of the order dated February 10 2021 on the public domain. I note that the respondent has adequately addressed query number 1(b) by providing the information available with him. Accordingly I do not find any deficiency in the response. 10. On perusal of the appeal I note that the appellant has referred to another RTI Application dated May 18 2021 filed by him wherein the respondent had informed that complaints had been filed against certain promoters of SEL manufacturing Company Ltd. On that basis the appellant has refuted the extant response dated September 27 2021 provided by the respondent. I note that the appellant has specifically sought copy of the “complaint received register showing entries related to complaints”. In view of the same I do not find any merit in the submission of the appellant. Accordingly the same does not warrant consideration at this stage. 11. In view of the above observations I find that there is no need to interfere with the decision of the respondent. The Appeal is accordingly dismissed. Appeal No. 44921 Place: Mumbai Date: November 15 2021 ANAND BAIWAR APPELLATE AUTHORITY UNDER THE RTI ACT SECURITIES AND EXCHANGE BOARD OF INDIA

A bail can be granted if all the evidence is documentary in nature and has also been recovered from the accused: High Court of Delhi

A bail can be granted if there are no allegations that the petitioner has tried to tamper with the evidence or is a flight risk. All the evidence is documentary in nature and even as per the prosecution the material evidence has also been recovered and the custodial interrogation of the petitioner is not required as nothing is to be recovered from him and the same was upheld by High Court of Delhi through the learned bench led by JUSTICE RAJNISH BHATNAGAR in the case of ANKIT NARANG vs. STATE, GOVT. OF NCT OF DELHI [BAIL APPLN. 3710/2021] on 10.03.2022. The facts of the case are that a complaint of one Sunil Kumar Singh, Superintending Engineer was received in the office of ACB, Delhi in which it has been alleged that Sh. Attar Singh Kaushal, and others while working in Delhi Jal Board, GNCT of Delhi fraudulently processed the claim of payment of six work orders issued separately to contractors. During site inspection and scrutiny of files related to tendered works at Shalimar Bagh SPS, gross irregularities like fraudulent release of payment in full/part made without execution of work or execution of work in violation of contract was found. The present bail application has been filed by the petitioner under Section 438 Cr.P.C. seeking anticipatory bail under Section 7 of P.C. Act and u/s 420/120 B of IPC. The petitioner’s counsel submitted that the petitioner has been falsely implicated and the work done by the applicant/petitioner was duly inspected by the concerned official from time to time and the same was duly entered in the measurement book as per the rule and after the successful completion of the work the payment was made by the Delhi Jal Board. It was further submitted that the petitioner has joined the investigation and has provided all the relevant information to the IO and the custodial interrogation of the petitioner is not required. The respondent’s counsel submitted that the petitioner has joined the investigation but he has not cooperated in the investigation. It was further submitted that during the investigation old material register of Shalimar Bagh SPS was seized and on examination of old material register it was found that there was no entry regarding the alleged old replaced sluice valve in the register. The Court held that according to the circumstances, the custodial interrogation of the petitioner is not required as nothing is to be recovered from him. The Court observed that, “a bail can be granted if there are no allegations that the petitioner has tried to tamper with the evidence or is a flight risk. All the evidence is documentary in nature and even as per the prosecution the material register has also been recovered and the custodial interrogation of the petitioner is not required as nothing is to be recovered from him.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 17.02.2022 Date of decision: 07.03.2022 W.P.(C) 6311 2020 & CMs 22412 2020 23078 2020 AMARJEET SINGH DAGAR ..... Petitioner Through Ms.Tamali Wad Adv. UNION OF INDIA AND OTHERS ..... Respondents Through Mr.Sanjeev Uniyal with Mr.Sachin Chandela and Mr.Dhawal Uniyal HON BLE MR. JUSTICE MANMOHAN HON BLE MR. JUSTICE NAVIN CHAWLA NAVIN CHAWLA J. The present petition has been filed seeking setting aside of the order dated 04.09.2020passed by the learned Central Administrative Tribunal Principal Bench New Delhi in OA No. 1230 of 2020 dismissing the petition filed by the petitioner. The petitioner further prays for quashing and setting aside of the Office Order No. 21(19) 2020 Coord unit C.E(W CUMTLQA) EE C II dated 09.04.2020issued by the respondent no. 2 transferring the petitioner from New Delhi to Jaipur. WP(C) No.6311 2020 It is the case of the petitioner that the petitioner in June 1992 joined as a Section Officer in the Horticulture Wing of the respondent no.2. While in service during the year 2016 the hearing impairment of the petitioner became quite severe following which a duly constituted Medical Board examined him at Dr. Ram Manohar Lohia Hospital New Delhi for positing at certain stations. The petitioner gave his willingness to be posted to Guwahati and was accordingly transferred to Guwahati vide WP(C) No.6311 2020 order dated 24.08.2018. The petitioner joined his new posting only on The petitioner states that he opted for his transfer to the North Eastern Region as he had expected that he shall be able to manage his affairs independently without assistance however soon after joining his place of posting in the absence of his wife who was unable to join him at Guwahati due to her permanent job as a teacher in a school in Delhi NCR the petitioner started facing a lot of difficulty in managing his day to day activities which made it quite impossible for him to live alone in Assam. The petitioner therefore made a representation to the Director General Central Public Works Department on 18.03.2019 seeking a transfer back to New Delhi. The same was followed up with subsequent representations dated 16.08.2019 and 19.11.2018. Vide order dated 16.12.2019 the petitioner along with five other Section Officers was promoted to the post of Assistant Director „AD(H)‟]. Despite representations made seeking transfer to New Delhi the petitioner was retained in the Eastern Region and vide order dated 17.12.2019 the petitioner was posted to DDGuwahati HQ: Shillong. Aggrieved by the said transfer the petitioner made representations to the respondents as well as to the Department of Empowerment of Persons with Disabilities under the Ministry of Social Justice and Empowerment Government of IndiaNo.6311 2020 The Chief Commissioner of the DEPWD vide letter dated 09.01.2020 requested the respondents to consider the representation of the petitioner by placing reliance on Clause of the Office Memorandum issued by the Department of Personnel and Training dated 31.03.2014 which provides for preference in transfer and posting to Persons with Disabilities who are employed with the Government of India. The recommendations were considered by the respondents and vide order dated 04.03.2020 the petitioner was directed to be posted in the office of DD under CE at New Delhi with effect from 27.02.2020. 10. However within thirty five days of his transfer vide impugned Office Order the respondent no. 2 transferred the petitioner from the office of DD under CE at New Delhi to the office of DDunder CE Jaipur in Rajasthan. 11. The petitioner aggrieved by this sudden transfer made a representation dated 13.04.2020 to the Special Director General Central Public Works Department requesting for cancellation of his transfer order on the ground that the same is in contravention of the provisions of the Rights of Persons with Disabilities Act 2016 hereinafter referred to as the „RPD Act‟) as well as the DOP&T OM and the Posting Guidelines of the respondent no. 2 dated 11.12.2018 hereinafter referred to as the „Posting Guidelines‟) whereby the normal period of continuous stay of all officials was fixed at three years at any WP(C) No.6311 2020 station. The petitioner however did not receive not any response from the respondent no. 2. 12. As the functioning of the learned CAT had been suspended till 03.05.2020 in light of the nation wide lockdown imposed due to the COVID 19 pandemic the petitioner approached this Court by way of a writ petition being W.P.(C) 30120. This Court vide order dated 28.04.2020 directed „status quo‟ to be maintained with respect to the petitioner‟s posting. The petitioner vide same order had been granted the liberty to approach the learned CAT upon it resuming its functioning. 13. Upon resumption of the functioning of the learned CAT the petitioner filed the Original Application being OA No. 1230 of 2020 which has been dismissed by the learned CAT vide the impugned order however granting liberty to the petitioner to make a representation to the respondents after joining at Jaipur with respect to his transfer. II. PETITIONER’S SUBMISSIONS 14. Ms. Tamali Wad the learned counsel for the petitioner submits that the learned CAT failed to appreciate that the respondents apart from stating that the impugned Office Order has been passed on account of „exigencies in service‟ and in the „public interest‟ have not disclosed the reason for transferring the petitioner from New Delhi within only thirty five days of his posting and that too in the peak of the COVID 19 pandemic. WP(C) No.6311 2020 15. The learned counsel for the petitioner further submits that the impugned order is not sustainable in law as the same is arbitrary discriminatory and in gross violation of the provisions of the RPD Act as well as the DOP&T OM and the Posting Guidelines. She contends that the transfer order is also in violation of the Declaration on the Rights of Disabled Persons 1975 as well as the Human Rights Act 1993 as adopted by the General Assembly of the United Nations Organization. 16. Ms. Wad the learned counsel for the petitioner submits that on account of the COVID 19 pandemic an Office Memorandum dated 11.05.2020 was issued by the respondent no. 1 whereby it was directed that „no rotational transfer of officers officials in different groups to be carried out till 30.04.2021‟ except for on the ground of administrative reasons is promotion retirement resignation death of incumbent closure of units due to less workload creation of new units punishment and vigilance angle compassionate grounds that is medical emergency for the self or the family members or any other ground with specific approval of the Ministry. She submits that in spite of such clear directions the respondents have sought to enforce the impugned Office Order against the petitioner. 17. The learned counsel for the petitioner finally places reliance on certain office orders issued by the respondent no. 2 to contend that the respondent no. 2 has in fact in the recent past retained certain personnel at New Delhi for a period beyond three years as prescribed under the Posting Guidelines. She submits that the same is discriminatory as the WP(C) No.6311 2020 petitioner had been transferred without taking into consideration his disability status and the fact that he had served as an AD(H) in New Delhi only for a period of thirty five days on his transfer. III. RESPONDENT’S SUBMISSIONS 18. Mr. Sanjeev Uniyal the learned counsel for the respondents on the other hand places reliance on the impugned order passed by the learned CAT wherein the transfer order dated 09.04.2020 was upheld. He contends that prior to transfer to Guwahati the petitioner had been allowed to be posted in New Delhi since the time of joining the respondent no. 2 that is 15.06.1992 to 16.02.2019 which is a period of twenty six years. He submits that the transfer of the petitioner from New Delhi to Jaipur vide the impugned Office Order had been done in compliance with directions received from the Competent Authority. 19. The learned counsel for the respondents further submits that merely because other officers have been allowed to remain in New Delhi for more than three years does not give a right to the petitioner to also seek continuation of his posting in Delhi. 20. He submits that the Office Memorandum dated 11.05.2020 relied upon by the petitioner does not direct cancellation of the transfer orders already issued. WP(C) No.6311 2020 petitioner. for the parties. 21. He finally submits that in compliance with the order dated 11.09.2020 passed by this Court a speaking order dated 19.10.2020 has been passed by the Competent Authority of the respondent no. 2 rejecting the representations dated 13.04.2020 and 13.05.2020 of the IV. FINDINGS OF THE COURT 22. We have considered the submissions made by the learned counsels 23. At the outset it must be emphasised that an employee in a transferable job has no vested right to remain posted at one place. The Courts should not readily interfere with the transfer order which is made in the public interest and for administrative reasons unless the transfer order is made in violation of any mandatory statutory rule or on the ground of mala fide. Even if a transfer order is passed in violation of executive instructions or orders the Courts ordinarily should not interfere with the order instead the affected party should approach the higher authorities in the concerned department. If the Courts continue to interfere with day to day transfer orders issued by the Government and or its subordinate Authorities there will be complete chaos in the administration which would not be conducive to the public interest. Interference under Article 226 of the Constitution of India is permitted only where the Court finds either the transfer order is mala fide or that the service rules prohibit such transfer or that the Authorities issuing the order were not competent to pass the same. It must be remembered that WP(C) No.6311 2020 transfer ordinarily is an incidence of service and must be left to the discretion of the Authorities concerned which are in the best position to assess the necessities of the administrative requirements of the situation. The Courts must maintain judicial restraint in such matters. {Refer: Shilpi Bose& Ors. vs. State of Bihar & Ors. 1991 Supp.SCC 659 Mohd. Masood Ahmad vs. State of Uttar Pradesh & Ors. 8 SCC 150 State of Haryana vs. Kashmir Singh & Anr. 13 SCC 306 and Major Amod Kumar vs. Union of India 18 SCC 478)}. In Punjab and Sind Bank & Ors. vs. Durgesh Kuwar 2020 SCC OnLine SC 774 the Supreme Court summarised the principles applicable to transfer orders as under: “17. We must begin our analysis of the rival submissions by adverting to the settled principle that transfer is an exigency of service. An employee cannot have a choice of postings. Administrative circulars and guidelines are indicators of the manner in which the transfer policy has to be implemented. However an administrative circular may not in itself confer a vested right which can be enforceable by a writ of mandamus. Unless an order of transfer is established to be malafide or contrary to a statutory provision or has been issued by an authority not competent to order transfer the Court in exercise of judicial review would not be inclined to interfere. These principles emerge from the judgments which have been relied upon by the appellants in support of their submissions and to which we have already made a reference above. There can be no dispute about the position in law.” WP(C) No.6311 2020 In the present case it is worth noting that the petitioner has been posted in Delhi from 15.06.1992 to 16.02.2019 which is almost twenty six years before his posting from New Delhi to Guwahati. The petitioner in his rejoinder affidavit himself states that the petitioner had given his willingness to be posted to Guwahati and based thereon the petitioner was transferred to Guwahati vide order dated 24.08.2018 wherein he joined only on 18.02.2019. Within one month of his posting he made a representation seeking a transfer back to Delhi on the ground of his disability. The petitioner was promoted to the post of AD(H) and posted at DD Guwahati HQ: Shillong. Pursuant recommendations of the Chief Commissioner of the DEPWD the respondent no. 2 transferred the petitioner to New Delhi vide order dated 04.03.2020. The same was reviewed by the Ministry of Housing and Urban Affairs Government of India whereafter the impugned Office Order was passed. Pursuant to the interim order passed in the earlier writ petition being W.P.(C) 3011 of 2020 and later in this petition the petitioner has remained in New Delhi in spite of the transfer order. Therefore in his entire career barring the period less than one year the petitioner has in fact remained posted in New Delhi for almost 28 years. The petitioner therefore cannot be allowed to claim that his transfer is bad merely because he was not allowed to complete a formal tenure posting of three years at New Delhi after his re transfer from Shillong to New Delhi vide order dated 04.03.2020. His transfer to New Delhi was in itself not a normal posting order and was passed before completion of his tenure at Shillong. WP(C) No.6311 2020 26. The DOP&T OM relied upon by the learned counsel for the petitioner states that the Persons with Disabilities may be exempted from rotational transfer or transfer and be allowed to continue in the same job where they would have achieved the desired performance. However the said DOP&T OM cannot be read as an embargo on the Authorities to transfer the Persons with Disabilities on administrative exigencies. In any event as held by the Supreme Court in Shilpi Bose even if a transfer order is passed in violation of executive instructions or orders the Courts ordinarily should not interfere with the same. Present is one such case where we do not deem it appropriate to interfere with the impugned Officer Order passed by the Authorities taking into account the earlier posting of the petitioner to New Delhi. In any case the representation of the petitioner has also been considered by the Competent Authority pursuant to the order dated 11.09.2020 of this Court and the same was rejected. Insofar as the plea of discrimination is concerned again the same cannot be a ground to interfere with the impugned Office Order. In fact we may note that the petitioner himself having remained in New Delhi for more than twenty six years at the first instance has been a beneficiary of such benevolent acts of the respondents and cannot now be heard to complain against the same. The petitioner has also not impleaded the officers against whom the petition makes allegations of discrimination as parties to the present petition. We therefore do not consider this a fit case to examine the plea of discrimination raised by the petitioner any further. WP(C) No.6311 2020 28. As far as the submission premised on Office Memorandum dated 11.05.2020 in view of the subsequent development in form of interim relief granted to the petitioner and near normalcy due to decline of COVID the said plea has achieved its purpose and cannot support the case of the petitioner any further to be retained at New Delhi. It is also to be noted that the present petition is against the order passed by the learned CAT. It is a settled law that this Court in the exercise of its powers under Article 226 of the Constitution of India does not sit as a Court of Appeal against the orders passed by the learned CAT. The power of judicial review must be exercised restrictively and on limited grounds. 6 SCC 1].In the present case we find no such infirmity in the impugned order passed by the learned CAT that warrants any interference from this court in exercise of its extra ordinary discretionary jurisdiction. V. Relief same is dismissed. In view of the above we find no merit in the present petition the It is however clarified that the present order shall not come in the way of the petitioner making further representation(s) to the respondents on the issue of transfer in terms of the order passed by the Learned CAT which shall be considered by the respondents in accordance with law. WP(C) No.6311 2020 32. There shall be no order as to costs. NAVIN CHAWLA J MANMOHAN J MARCH 07 2022 WP(C) No.6311 2020

OM PRAKASH V/S STATE OF U.P

“One of the categories which attracts more stringent punishment is the rape on a woman who is pregnant” Om Prakash @ Chhotey who was related to the parents of the informant, met then in the Court premises. Jaipal (PW-2) brother of Ram Saran was also there along with the informant and she was talking to him about bail of her husband. After sometime, accused Om Prakash sent PW-2 to find out whether the challan had come or not. Then at about 3.00 p.m. accused overpowered the informant and he started raping her in the veranda of Zila Parishad near the Court. When the informant raised alarm, PW-2 and one Ram Lal came there and they assaulted Om Prakash who was raping her and they apprehended him and the accused was taken to the police station.The informant gave oral information and then Chik number 126 Exhibit A-1 was recorded and the entry was made in the general diary and the case was registered. Internal examination of the body of the informant was done by Dr. Purnima Srivastava (PW-3) and the medical report is Exhibit A-2 and the supplementary report is Exhibit A-3. The medical examination of the accused was done by Dr. P.K. Gangwar (PW-4) and the report is Exhibit A-4.ISSUE BEFORE THE COURT:Whether evidence establishes knowledge of the accused?Whether the judgement given by trial and High court was applicable? RATIO OF THE COURT:The court heard the learned counsels and referred to the judgement of trial and high court that the statement of accused Om Prakash was recorded under Section 313 of the Criminal Procedure Code, 1973. The accused alleged that he was implicated due to the enmity. It was stated by him that he had come from the village along with the brother of the victim and other persons for taking steps. He even made some attempts in the police station in the night. He had taken some money for the purpose. When the challan came, they got down at Bilgram Chungi and then a quarrel took place amongst the accused, PW-2 and father of the victim on the question of refund of the money.  They assaulted him and he was implicated in the criminal case.The court held that the applicability of Section 376(2)(e) is concerned, it is submitted that the doctor has clearly stated that the victim was six months pregnant, and it could be known from the external appearance. The Trial Court had rightly observed that the accused must have known the victim was pregnant and there is full possibility in that regard.  Though the High Court has not dealt with this aspect, it has clearly noted that the accused was in a position to dominate the will of the victim. It is settled law that the victim of sexual assault is not treated as accomplice and as such, her evidence does not require corroboration from any other evidence including the evidence of a doctor. In a given case even if the doctor who examined the victim does not find sign of rape, it is no ground to disbelieve the sole testimony of the prosecutrix. In normal course a victim of sexual assault does not like to disclose such offence even before her family members much less before public or before the police. The Indian women has tendency to conceal such offence because it involves her prestige as well as prestige of her family.Only in few cases, the victim girl or the family members has courage to go before the police station and lodge a case. In the instant case the suggestion given on behalf of the defence that the victim has falsely implicated the accused does not appeal to reasoning. There was no apparent reason for a married woman to falsely implicate the accused after scatting her own prestige and honour.The court observed that crime against women in general and rape in particular is on the increase. It is an irony that while celebrating women’s rights in all spheres, show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. The court noticed that a rapist not only violates the victim’s privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault — it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female.The Court, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepencies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars.The court observed that stringent punishment is the rape on a woman who is pregnant.  In such cases where commission of rape is established for operation of Section 376(2)(e) the prosecution has to further establish that accused knew the victim to be pregnant. In the instant case there was no such evidence led. The Trial Court came to the conclusion that there was “full possibility” of the accused knowing it. There is a gulf of difference between possibility and certainty. While considering the case covered by Section 376(2)(e) what is needed to be seen is whether evidence establishes knowledge of the accused. Mere possibility of knowledge is not sufficient.  When a case relates to one where because of the serious nature of the offence, as statutorily prescribed, more stringent sentence is provided, it must be established and not a possibility is to be inferred.  The language of Section 376(2)(e) is clear. It requires prosecution to establish that the accused knew her to be pregnant.  This is clear from the use of the expression “knowing her to be pregnant”.  This is conceptually different that there is a possibility of his knowledge or that probably he knew it.  DECISION HELD BY COURT:The court held that positive evidence has to be adduced by the prosecution about the knowledge. In the absence of any material brought on record to show that the accused knew the victim to be pregnant Section 376(2)(e) IPC cannot be pressed into service.  To that extent the judgment of the Courts below are unsustainable. The court said minimum sentence prescribed under Section 376(1) IPC is clearly applicable.With the modification of sentence by reduction from 10 years to 7 years, the appeal is dismissed.         

Appeal6206 State of U.P DATE OF JUDGMENT: 11 05 2006 ARIJIT PASAYAT & S.H. KAPADIA JUDGMENT Arising out of SLPNo. 61105 ARIJIT PASAYAT J Leave granted. Appellant calls in question legality of the judgment rendered by a learned Single Judge of the Allahabad High Court Lucknow Bench upholding the appellant’s conviction for offence punishable under Section 376(2)(e) of the Indian Penal Code 1860as recorded by learned VI Additional Sessions Judge Hardoi and the sentence of 10 years imprisonment as awarded We do not propose to mention name of the victim. Section 228 A IPC makes disclosure of identity of victim of certain offences punishable. Printing or publishing name of any matter which may make known the identity of any person against whom an offence under Sections 376 376 A 376 B 376 C or 376 D is alleged or found to have been committed can be punished. True it is the restriction does not relate to printing or publication of judgment by High Court or Supreme Court. But keeping in view the social object of preventing social victimisation or ostracism of the victim of a sexual offence for which Section 228 A has been enacted it would be appropriate that in the judgments be it of this Court. High Court or lower Court the name of the victim should not be indicated we have chosen to describe her as ’victim’ in the judgment. The above position was highlighted in State of Karnataka v. PuttarajaSCC 475 Prosecution version as unfolded during trial is essentially One day prior to the occurrence i.e. 9.3.1985 the police of Sursa arrested Ram Saran husband of the informantand the challan was brought to the concerned Court on the day of the occurrence. Om Prakash @ Chhoteywho was related to the parents of the informant met then in the Court premises. Jaipalbrother of Ram Saran was also there along with the informant and she was talking to him about bail of her husband. After sometime accused Om Prakash sent PW 2 to find out whether the challan had come or not. Then at about 3.00 p.m. accused overpowered the informant and he started raping her in the veranda of Zila Parishad near the Court. When the informant raised alarm PW 2 and one Ram Lal came there and they assaulted Om Prakash who was raping her and they apprehended him and the accused was taken to the police station. The informant gave oral information and then Chik number 126 Exhibit A 1 was recorded and the entry was made in the general diary and the case was registered. Internal examination of the body of the informant was done by Dr. Purnima Srivastavaand the medical report is Exhibit A 2 and the supplementary report is Exhibit A 3. The medical examination of the accused was done by Dr. P.K. Gangwar PW 4) and the report is Exhibit A 4. The underwear of accused was seized in the police station and the seizure memo is Exhibit A 6 and the petticoat of the informant was seized and the seizure memo is Exhibit A 7. The charge of investigation of the case was given to Shri Mahesh Lal Vadhuriawho prepared the site plan of the place of occurrenceeye witness JaipalDr. Smt. Purnima SrivastavaDr. P.K. GangwarShri Uttam KumarShri Mahesh Lal Vadhuriaand head constable Shri Jitendra Singhand PW 2 the brother in law of the victim and the evidence of the doctor PW 3 the Trial Court held that the accusations have been established. Taking note of the evidence of PW 3 it was held that accused must have known and that there is full possibility that victim is pregnant. Accordingly by applying the provisions of Section 376(2)(e) accused was convicted and sentenced to undergo RI for 10 years which is the minimum sentence prescribed. The Trial Court held that there was no reason to reduce the minimum prescribed sentence. In appeal before the High Court it was submitted that the prosecution version is incredible and the trial Court should not have convicted the accused. The High Court by the impugned judgment affirmed the conviction and sentence. It noted that the FIR was lodged immediately without any delay. The evidence of the victim was credible and cogent. That itself was sufficient to record conviction. In addition was the evidence of PW 2 an eye witness. It was therefore held that the prosecution has clearly established that the offence was committed by the accused. With reference to the background facts it was noted that the accused was in a position to dominate will of the prosecutrix. Therefore the conviction as recorded was maintained and the appeal was dismissed In support of the appeal learned counsel for the appellant submitted that the prosecution version is clearly unbelievable. It is not believable that the accused who had gone to help the victim’s husband to be released on bail would commit rape on her that too in broad day light. In any event it was submitted that the requirements of Section 376(2)(e) were not proved Per contra learned counsel for the State submitted that prosecution version has been clearly established by the cogent evidence not only by prosecution but also by PW 2 an eye witness. It is to be noted that the appellant was caught red handed and was taken to police station where immediately FIR So far as the applicability of Section 376(2)(e) is concerned it is submitted that the doctor has clearly stated that the victim was six months pregnant and it could be known from the external appearance. The Trial Court had rightly observed that the accused must have known the victim was pregnant and there is full possibility in that regard. Though the High Court has not dealt with this aspect it has clearly noted that the accused was in a position to dominate the will of the victim It is settled law that the victim of sexual assault is not treated as accomplice and as such her evidence does not require corroboration from any other evidence including the evidence of a doctor. In a given case even if the doctor who examined the victim does not find sign of rape it is no ground to disbelieve the sole testimony of the prosecutrix. In normal course a victim of sexual assault does not like to disclose such offence even before her family members much less before public or before the police. The Indian women has tendency to conceal such offence because it involves her prestige as well as prestige of her family. Only in few cases the victim girl or the family members has courage to go before the police station and lodge a case. In the instant case the suggestion given on behalf of the defence that the victim has falsely implicated the accused does not appeal to reasoning. There was no apparent reason for a married woman to falsely implicate the accused after scatting her own prestige and honour. Of late crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women’s rights in all spheres we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim’s privacy and personal integrity but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim a rapist degrades the very soul of the helpless female. The Court therefore shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepencies in the statement of the prosecutrix which are not of a fatal nature to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations. This position was highlighted in State of Punjab v. Gurmeet SinghSCC 384). A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix. There is no rule of law or practice incorporated in the Indian Evidence Act 1872similar to illustrationto Section 114 which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the Court is entitled to base a conviction on her evidence unless the same is own to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case discloses that the prosecutrix does not have a strong motive to falsely involve the person charged the Court should ordinarily have no hesitation in accepting her evidence. This position was highlighted in State of Maharashtra v. Chandraprakash Kewalchand JainSCC 550). Sub sectionof Section 376 makes some special case of rape punishable with more stringent punishment. Sub sectionSection 376 reads as follows 376(2) Whoever a) being a police officer commits rape\027 i) within the limits of the police station to which he is appointed or ii) in the premises of any station house whether or not situated in the police station to which he is appointed or iii) on a woman in his custody or in me custody of a police officer subordinate to him or b) being a public servant takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him or c) being on the management or on the staff of a jail remand home or other place of custody established by or under any law for the time being in force or of a woman’s or children’s institution lakes advantage of his official position and commits rape on any inmate of such jail remand home place or institution d) being on the management or on the staff of a hospital takes advantage of his official position and commits rape on a woman in that hospital or e) commits rape on a woman knowing her to be pregnant or f) commits rape on a woman when she is under twelve years of age or g) commits gang rape shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine One of the categories which attracts more stringent punishment is the rape on a woman who is pregnant. In such cases where commission of rape is established for operation of Section 376(2)(e) the prosecution has to further establish that accused knew the victim to be pregnant. In the instant case there was no such evidence led. The Trial Court came to the conclusion that there was "full possibility" of the accused knowing it. There is a gulf of difference between possibility and certainty. While considering the case covered by Section 376(2)(e) what is needed to be seen is whether evidence establishes knowledge of the accused. Mere possibility of knowledge is not sufficient. When a case relates to one where because of the serious nature of the offence as statutorily prescribed more stringent sentence is provided it must be established and not a possibility is to be inferred. The language of Section 376(2)(e) is clear. It requires prosecution to establish that the accused knew her to be pregnant. This is clear from the use of the expression "knowing her to be pregnant". This is conceptually different that there is a possibility of his knowledge or that probably he knew it. Positive evidence has to be adduced by the prosecution about the knowledge. In the absence of any material brought on record to show that the accused knew the victim to be pregnant Section 376(2)(e) IPC cannot be pressed into service. To that extent the judgment of the Courts below are unsustainable. However minimum sentence prescribed under Section 376(1) IPC is clearly applicable With the modification of sentence by reduction from 10 years to 7 years the appeal is dismissed.

If the parties fail to agree on the arbitrator within thirty days then such appointment shall be made by the Chief Justice: High Court Of New Delhi

The present petition under Section 11(5) of the Arbitration and Conciliation Act, 1996 seeks appointment of a Sole Arbitrator, which is containing an arbitration agreement in Clause 11, And the same issue was held in the judgement passed by a single bench judge comprising HON’BLE MR. JUSTICE SANJEEV NARULA, in the matter M/S POOJA INFOTECH PVT. LTD. & ORS  V.  M/S PRABHUPREM INFOTECH PVT. LTD. & ORS dealt with an issue mentioned above. Petitioners No. 2 and 3 are directors of Petitioner No. 1 company. Respondent No. 5 is the wife of Petitioner No. 2 and Respondent No. 6 is the brother of Petitioner No. 3. The Petitioners No. 2-3 and Respondents No. 5-6 [Seller]hold the complete shareholding in Petitioner No. 1 company. No relief is sought by the Petitioners against Respondents 5 and 6. Petitioner No. 1 was allotted and leased a plot of land from the Greater Noida Industrial Development Authority, 1,01,114.27 sq. meters bearing Plot No. 19, Sector K.P.-V, Greater The Transaction: ARB.P. 573/2020 Page 3 of 15 Noida (West), Gautam Budh Nagar, Uttar Pradesh. The Buyers and Sellers entered into a Memorandum of Understanding dated 31st July 2014 for transferring Sellers’ shareholding in Petitioner No. 1 company to the Buyers, for a consideration of Rs. 84.43 crores. On 27th December 2015, a Settlement Agreement was entered into between all the Petitioners and Respondents (except Respondent No. 3) wherein it was agreed that the MoU stood terminated and cancelled and the parties would be restored to pre-MoU status [‘Settlement’]. In terms thereof, the Buyers claimed a refund of Rs. 21 crores from the Sellers, and in return offered repossession of the project land. Subsequently, the Petitioners vide notice invoking arbitration dated 18th October 2019, called upon the contesting Respondents to pay compensation to the tune of Rs. 25 crores, or in the alternative, settle disputes in terms of Clause 11 of the Settlement Mr Sanat Kumar, Senior Counsel for the Respondents, led the arguments on behalf of the Buyers and at the outset, strongly objected to the maintainability of the present petition on the ground that the claims raised by the Petitioners are non-arbitrable as well as time-barred, and thus, cannot be referred to arbitration. Meanwhile, Reliance placed by the Petitioners on the MoU for raising any claims against the contesting Respondents is barred because of novation of the contract under Section 62 of the Indian Contract Act, 1872. The present proceedings have only been initiated to stall the claims of the Respondents No. 1-4 as made by them in various criminal complaints. Mr Sanjay Goswami, counsel for the Petitioners, while relying upon the Settlement, controverted the objections of the Respondents, as follows;      c.That apart, the amount of refund claimed by the Buyers was never received by the Petitioners, and accordingly, is not refundable. The existence of the arbitration agreement contained in the Settlement is not in controversy. The contesting Respondents’ objections are two-fold. First, they contend that claims urged by the Sellers are barred by limitation, and hence, should not be referred to arbitration. Later, the court does not find merit in the arguments advanced by the contesting Respondents on these issues. The further court also observed the recent case which was held in, The Supreme Court in BSNL v. Nortel Networks (supra), and also keeping in view the aforenoted principle in matters relating to the objection of limitation, we have to determine whether the instant case falls in that category of exceptional cases or not. Accordingly, Hon’ble Mr Justice J.R. Midha, (Retd.) Former Judge of this Court is appointed as the Sole Arbitrator to adjudicate the disputes between the parties concerning the MoU dated 31st July 2014 and the Settlement Agreement dated 27th December 2015. The parties are directed to appear before the learned Arbitrator, as and when notified. This is subject to the learned Arbitrator making necessary disclosures under Section 12(1) of the Act and not being ineligible under Section 12(5) of the Act. ARB.P. 573/2020. The learned Arbitrator will be entitled to charge his fees in terms of the provisions of the Fourth Schedule appended to the Act. The court perused the facts and argument’s presented, it thought that- “It is clarified that the Court has not examined any of the claims of the parties and all the rights and contentions of the parties on merits are left open. Both the parties shall be free to raise their claims/counterclaims before the learned Arbitrator following the law. 20. Because of the above, the present petition is allowed and stands disposed of”.

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 6th August 2021 Pronounced on: 21st October 2021 ARB. P. 573 2020 M S POOJA INFOTECH PVT. LTD. & ORS. ..... Petitioners Through: Mr. Sanjay Goswami Advocate. M S PRABHUPREM INFOTECH PVT. LTD. & ORS. ..... Respondents Through: Mr. Sanat Kumar Senior Advocate with Mr. Sanjay Sharma Darmora Advocate for Respondent No. 1 4. Mr. Pawan Kumar Mittal Advocate for Respondent No. 5. Mr. Akhil Sachar Advocate for R 6. HON’BLE MR. JUSTICE SANJEEV NARULA VIA VIDEO CONFERENCING] SANJEEV NARULA J. JUDGMENT The present petition under Section 11(5) of the Arbitration and Conciliation Act 1996 seeks appointment of a Sole Arbitrator to adjudicate the disputes that are stated to have arisen under a Settlement Agreement dated 27th December 2015 containing an arbitration agreement in Clause 11 which is reproduced ARB.P. 573 2020 BRIEF FACTS The Parties: “11. That the Indian Arbitration and Conciliation Act of 1996 shall apply to the arbitration or to the arbitration proceedings or to the arbitration award. The Arbitrator shall be appointed mutually by the FIRST PARTIES and the SECOND PARTIES. The seat of the Arbitration shall be at New Delhi and the Arbitration Proceedings shall be conducted in English. For all purposes the Jurisdiction of court shall be at New The relevant facts of the case are as follows: 2.1. Petitioners No. 2 and 3 are directors of Petitioner No. 1 company. Respondent No. 5 is wife of Petitioner No. 2 and Respondent No. 6 is brother of Petitioner No. 3. The Petitioners No. 2 3 and Respondents No. 5 6hold the complete shareholding in Petitioner No. 1 company. No relief is sought by the Petitioners against Respondents 5 and 6. 2.2. The remaining respondents are Respondents No. 1 4 Gautam Budh Nagar Uttar Pradesh for development of IT and IT enabled services. 2.4. The Buyers and Sellers entered into a Memorandum of Understanding dated 31st July 2014 for transferring Sellers’ shareholding in Petitioner No. 1 company to the Buyers for a consideration of Rs. 84.43 croreswherein it was agreed that the MoU stood terminated and cancelled and the parties would be restored to pre MoU status had only received a sum total of Rs. 16.90 crores from the Buyers with respect to the MoU. The Petitioners also ARB.P. 573 2020 contend that sums of Rs. 7.6 crores and blank post dated cheques were taken by the Buyers from the Sellers under false pretences and extortion threats. 2.8. Subsequently the Petitioners vide notice invoking arbitration dated 18th October 2019 called upon the contesting Respondents to pay compensation to the tune of Rs. 25 crores or in alternative settle disputes in terms of the Clause 11 of the Settlement i.e. through arbitration mechanism. They provided a panel of arbitrators comprising of four retired district judges for the contesting Respondents to select from. Upon receiving no response to the same on 3rd March 2020 the Petitioners have filed the present petition seeking appointment of a Sole Arbitrator. CONTENTIONS OF THE PARTIES 3. Mr. Sanat Kumar Senior Counsel for the Respondents led the arguments on behalf of the Buyers and at the outset strongly objected to the maintainability of the present petition on the ground that the claims raised by the Petitioners are non arbitrable as well as time barred and thus cannot be referred to arbitration. His submissions are summarised as follows: 3.1. The petition is grossly barred by time. Since 31st July 2014there has been no acknowledgment of liability by the contesting Respondents. Therefore the notice invoking arbitration issued on 18th October 2019 after almost four years from the Settlement suffers from laches. Petitioners have wrongly based their case on the plea that as the last cheque issued in favour of the Buyers ARB.P. 573 2020 under the Settlement was dated 28th February 2017 and notice of invocation of arbitration was sent on 18th October 2019 their claims would be within the statutory period of limitation. This plea is erroneous and misconceived inasmuch as Petitioner No. 1’s cheque does not extend the period of limitation due to absence of acknowledgment by the contesting Respondents as is required in terms of Section 18 of the Limitation Act 1963 for extension of the period of limitation. Reliance is placed upon Bharat Sanchar Nigam Ltd. v. Nortel Networks India Pvt. Ltd. 1 and the decision of the Delhi High Court in Satander Kumar v. MCD & Ors. 2 to contend that the Courts can at the referral stage interfere in cases where it is manifest that the claims are ex facie barred by time and the Applicant seeks to resurrect a time barred claim. Further the invocation notice was issued by the Petitioners on 28th October 2019 i.e. after a period of almost 4 years from the settlement dated 20th December 2015 which is the last writing acknowledgment between the parties. Thus the alleged claims of the Petitioners are highly barred by time and cannot be referred to arbitration. 3.2. Under Section 18 of Limitation Act the period of limitation can be extended by an acknowledgment of liability by the party against whom such right is claimed. As the alleged right is claimed by the Petitioners against the Respondents No. 1 to 4 the acknowledgment should have been on the part of Respondents No. 1 to 4 and not by the Petitioners themselves. Thus the argument of the Petitioner is totally 15 SCC 738. 2 2010(5) RAJ 369such as the question of limitation are to be left to be adjudicated by the arbitrator under Section 16 of the Act that enshrines the principle of kompetenz kompetenz. In support of this contention he relies upon the judgment of Uttarakhand Purv Sainik ARB.P. 573 2020 Kalyan Nigam Ltd. v. Northern Coal Fields.3 He further relies upon the decisions in Bharat Sanchar Nigam Ltd. Groupe Chimique Tunisien SA v. Southern Petrochemicals Industries Corporation Ltd. 4 Schlumberger Asia Services Ltd. v. Oil and Natural Gas Corporation Ltd. 5 Indian Oil Corporation Ltd. v. SPS Engineering Ltd. 6 Parsvnath Developers Ltd. & Anr. v. Rail Land Development Authority 7 and Royal Orchid Hotels Ltd. v. Rock Reality Pvt. Ltd.8 4.3. Regardless the Petitioners are not bound by the Settlement because: a. Sellers were subjected to extortionist methods coercion to unwillingly sign the Settlement. b. The Settlement was then intentionally not made available to the Petitioners for a prolonged period. In fact the Settlement along with its Annexures was only made available on 1st March 2017 when the Petitioners were summoned in the criminal case filed for dishonour of cheques issued under the Settlement. c. That apart the amount of refund claimed by the Buyers was never received by the Petitioners and accordingly is not refundable. d. Moreover the Petitioners are not bound by the terms of the Settlement on account of failure of the Buyers to honour their obligations under the same as well as the MoU. 3 2 SCC 455. 45 SCC 275. 57 SCC 562. 63 SCC 507. 7 2018 SCC OnLine Del 12399. 8 CMP 288 2018ARB.P. 573 2020 ANALYSIS AND FINDINGS The existence of arbitration agreement contained in the Settlement is not in controversy. The contesting Respondents’ objections are two fold. First they contend that claims urged by the Sellers are barred by limitation and hence should not be referred to arbitration. Second it is argued that the claims sought to be referred to arbitration arise under the MoU and not under the Settlement. Since the MoU does not contain any arbitration clause the petition is not maintainable. Whether court should refuse to refer the disputes to arbitration on account of non arbitrability of disputes In the opinion of the court the objection of the contesting Respondents with respect to arbitrability of claims is an aspect that has to be agitated before the Arbitral Tribunal. Further whether the disputes arise out of the MoU dated 31st July 2014 or out of the Settlement Agreement dated 27th December 2015 is a question which requires a factual determination and cannot be examined in the present proceedings. Prima facie the contesting Respondents may be correct in contending that in light of execution of the Settlement the MoU stood cancelled and ceased to exist and therefore no claim can arise from a cancelled agreement. However whether the claims arise from the MoU or the Settlement is an aspect that has to be evaluated on the basis of the claim that the Sellers will eventually raise. At this stage the Court only has to examine ARB.P. 573 2020 if a dispute has arisen from the agreement which contains an Arbitration Clause. The stand of the parties clearly brings out disputes relating to the Settlement. It is an admitted position that payments have been partially made under the Settlement by way of cheques. It can also not be denied that the contesting Respondents have not received entire payment under the MoU as they have admittedly initiated criminal proceedings under Negotiable Instrument Act 1881 on account of dishonour of cheques. Yet curiously the contesting Respondents insist that they are not interested in arbitration and are satisfied with the proceedings that they have initiated. Sellers contend that the Settlement was executed under coercion and thus the payments thereunder are not due. Sellers also allege that certain terms of Settlement have been breached from which they have suffered damages including loss of profit) and on this issue they seek reference of disputes to arbitration. Thus the factual dispute whether the settlement was executed under duress or coercion whether payments under the Settlement were due or not whether claims against the contesting Respondents are barred under Section 62 of the Indian Contract Act 1872 are all aspects that would require parties to lead evidence followed by a detailed scrutiny on part of the arbitrator on each issue. Thus the court does not find merit in the arguments advanced by the contesting Respondents on these issues. Whether court should refuse to refer the disputes to arbitration on account of being barred by limitation ARB.P. 573 2020 The next objection is premised on delay. Unarguably limitation is a mixed question of fact and law. The Supreme Court in the case of ITW Signod India Ltd. v. Collector of Central Excise 9 has held that the question of limitation involves the question of jurisdiction. In M s Indian Farmers Fertilizers Cooperative Ltd. v. Bhadra Products 10 the Supreme Court held that the issue of limitation being a jurisdictional issue should be left to be decided by the Arbitral Tribunal under Section 16 of the Act. This is based on the principle of “kompetenz kompetenz” which favours minimum judicial intervention at the pre reference stage. 10. Further recently the Supreme Court in BSNL v. Nortel Networks supra) observed that only in very limited category of cases where there is not even a vestige of doubt that the claim is ex facie time barred or that the dispute is non arbitrable should a Court decline to make reference to an Arbitrator. However at the same time the Supreme Court also added a cautionary note that if there is even the slightest doubt the rule is to refer the disputes to arbitration otherwise it would encroach upon what is essentially a matter to be determined by the Tribunal. The conclusion noted in the aforenoted judgment which spells out the opinion of the Court is extracted “40. Conclusion Accordingly we hold that: 9 3 SCC 48. 102 SCC 534. The period of limitation for filing an application under Section 11 would be governed by Article 137 of the First Schedule of the Limitation Act 1963. The period of limitation will begin to run from the date when there is failure to appoint the arbitrator It has been suggested that the Parliament may consider amending ARB.P. 573 2020 Section 11 of the 1996 Act to provide a period of limitation for filing an application under this provision which is in consonance with the object of expeditious disposal of arbitration proceedings In rare and exceptional cases where the claims are ex facie time barred and it is manifest that there is no subsisting dispute the Court may refuse to make the reference.” 11. Clarity on the second aspect is found in the preceding paragraph of the judgment which states as follows: “39.The period of limitation for issuing notice of arbitration would not get extended by mere exchange of letters or mere settlement discussions where a final bill is rejected by making deductions or otherwise. Sections 5 to 20 of the Limitation Act do not exclude the time taken on account of settlement discussions. Section 9 of the Limitation Act makes it clear that: “where once the time has begun to run no subsequent disability or inability to institute a suit or make an application stops it.” There must be a clear notice invoking arbitration setting out the “particular dispute” including claims amounts) which must be received by the other party within a period of 3 years from the rejection of a final bill failing which the time bar would prevail. In the present case the notice invoking arbitration was issued 5 ½ years after rejection of the claims on 04.08.2014. Consequently the notice invoking arbitration is ex facie time barred and the disputes between the parties cannot be referred to arbitration in the facts of this case.” 12. Keeping in view the aforenoted principle in matters relating to objection of limitation we have to determine whether the instant case falls in that category of exceptional cases or not. 13. The Settlement was executed on 27th December 2015. The notice of invocation under Section 21 of the Act was issued on 18th October 2019. The contesting Respondents have laid considerable stress that the invocation is beyond the period contemplated under Article 137 of the Limitation Act 1963. The Sellers have however provided an explanation for the same. They ARB.P. 573 2020 have argued that they were compelled to sign the Settlement under duress and extortion from the Buyers who also had the aid of the police. The blank security cheques issued by the Sellers to the Buyers under the Settlement were obtained under false pretexts and compelling circumstances. These cheques were subject to fulfilment of obligations by the Buyers as set out in the Settlement and there was no immediate liability on the part of the Sellers to make the payment to the Buyers by such cheques. The Petitioners have also asserted that they repeatedly asked the Buyers for copies of the Settlement and details of payment which they failed to provide. Later in October December 2016 when accounts were audited and reconciled it was noticed that the Buyers had received a payment of Rs. 7.6 crores against post dated cheques which were obtained under the guise of Settlement. Later in March 2017 in a hearing of the criminal complaint under Section 138 of the Negotiable Instrument Act in respect of one of the cheques issued under the Settlement the Petitioners for the first time received a copy of the Settlement and thereafter arbitration was invoked in terms thereof. It is also noted by this Court that the parties herein have ongoing criminal litigations against each other. Respondent No. 1 has filed a criminal complaint against the Petitioner as well as Respondents No. 5 6 with the Uttar Pradesh police. The Petitioners had also filed a complaint before the Economic Offences Wing Delhi Police against the Buyers though the said complaints are now stated to have been closed. Thus there is no doubt that as to the question of arising of disputes between them the parties herein are undoubtedly at loggerheads. In the notice invoking arbitration dated 18th October 2019 the explanation given by the Petitioners is that they did not ARB.P. 573 2020 have any occasion to invoke arbitration prior to such date since they received a copy of the Settlement Agreement only in the cheque bouncing proceedings initiated by the contesting Respondents. From the said date when they gained knowledge the invocation is within time. Whether this stand of the Petitioners is true or not is a question of fact which would require the parties to lead evidence. Thus the question of limitation is indeed a question of both fact and law. Therefore the genuineness of the parties’ stand is a matter of trial and the Court finds the question of limitation in the instant case to be disputed one. Therefore the Court does not find the instant case to be falling in the exceptional category of cases set out in the BSNL judgementwhere on a prima facie basis the Court can conclude that the petition is ex facie barred by limitation. The Court cannot delve into this issue in the present proceedings under Section 11of the Act. 15. Thus in the opinion of the Court the petition deserves to be allowed. 16. Accordingly Hon’ble Mr. Justice J.R. Midha Former Judge of this Courtis appointed as the Sole Arbitrator to adjudicate the disputes between the parties in relation to the MoU dated 31st July 2014 and the Settlement Agreement dated 27th December 2015. 17. The parties are directed to appear before the learned Arbitrator as and when notified. This is subject to the learned Arbitrator making necessary disclosures under Section 12(1) of the Act and not being ineligible under Section 12(5) of the Act. ARB.P. 573 2020 18. The learned Arbitrator will be entitled to charge his fees in terms of the provisions of the Fourth Schedule appended to the Act. It is clarified that the Court has not examined any of the claims of the parties and all the rights and contentions of the parties on merits are left open. Both the parties shall be free to raise their claims counter claims before the learned Arbitrator in accordance with law. In view of the above the present petition is allowed and stands disposed of. OCTOBER 21 2021 SANJEEV NARULA J ARB.P. 573 2020

Presumption under S139 of NI Act unsustainable if there is a failure to show the debt transaction in income tax return – Telangana High Court

The evidence placed on record by the complainant is not sufficient to prove the case against the accused beyond all reasonable doubt. Hence, the trial Court was perfectly justified in acquitting the accused. This was said in the case of R.Narender vs Yakamma Keloth Or Kalyan [CRIMINAL APPEAL No.2852 of 2018] by Justice G Sri Devi in the High Court of Telangana The facts of the case date back to 12.09.2018, when the Special Magistrate acquitted the respondent for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881. Aggrieved by the judgment of the Trial Court, the appellant preferred the present Criminal appeal under Section 378 (4) of  Cr.P.C. The appellant contended that since it is proved that the cheques have been signed and issued by the accused to the complainant, the trial Court shall raise a presumption to the effect that the said cheques have been issued towards discharge of legally enforceable debt. Secondly, it is contended that it is for the accused to rebut the said presumption and it is to be seen whether the accused could be successful in discharging the said burden. There is no plausible explanation from the accused why the cheques were signed and given by her to the complainant and therefore the accused failed to rebut the presumption without any iota of evidence The respondent contended that the trial Court has rightly acquitted the accused on the ground that she had creditably rebutted the presumption and established her defense that the impugned cheques were issued for the purpose of security only, which can be evident from the terms and conditions stipulated in Ex.P6. Secondly, it is contended that the accused had aptly rebutted the presumption through her reply notice dated 01.02.2016, wherein it is clearly substantiated factum that she had neither instructed nor assured the complainant to present the said cheques. Thirdly, despite being an income tax payee, the appellant had failed to file any income tax returns to show that he had incurred the said expenditure The Court referred to the case of Sanjay Mishra Vs. Ms. Kanishka Kappor @ Nikki and Another [CRIMINAL APPLICATION NO.4694 OF 2008] wherein it was said that, “If in a given case the amount advanced by the complainant to the accused is a large amount and is not repayable within few months, the failure to disclose the account in Income Tax return of the complainant may be sufficient to rebut the presumption under Section  139 of the Act.” Hence, in the present case the absence of any corroborative evidence regarding the debt transaction in the Income Tax return, the version of the complainant cannot be accepted at its face value as rightly pointed out by the Trial Court. 

THE HONOURABLE JUSTICE G. SRI DEVI CRIMINAL APPEAL No.28518 The complainant preferred the present Criminal appeal under Section 378 Cr.P.C. questioning the judgment dated 12.09.2018 passed in C.C.No.87 of 2017 on the file of the Special Magistrate Cyberabad at Hayathnagar wherein the 1st respondent accused was acquitted for an offence punishable under Section 138 of the Negotiable Instruments Act 1881the cheques are issued towards the discharge of debts owed by the accused to the complainant and the said debt is also a legally enforceable one. In Anil Sachar and 111 SCC 441 GSD J another v. Shree Nath Spinners Private Limited and others2 the Apex Court mentioned certain circumstances wherein the accused could not be able to rebut the presumption under Section 139 of the N.I. Act. He also submits that the above two decisions are squarely applicable to the facts of the present case. Therefore the presumption under Section 139 of the N.I. Act is attached to Ex.P1. He further submits that it is for the accused to rebut the said presumption and it is to be seen whether the accused could be successful in discharging the said burden. He further submits that Exs.P1 and P2 were issued to discharge the liability of the accused under Ex.P6. As the accused also admitted her signature on Ex.P6 and she is working as a Government Doctor she cannot plead ignorance of the contents of Ex.P6. Strangely the accused as D.W.1 said that she signed on Ex.P6 without reading the contents. Therefore the version of P.W.1 is highly believable. He also submits that the finding of the trial Court is that the accused has issued stop payment instructions to her banker. But as per the principles of law laid down in M s. Laxmi Dyechem v. State of Gujarat3 the Apex Court held that “the prosecution for the offence under Section 138 of the N.I. Act is permissible even if the cheque is returned for any reason like Refer to drawer Account closed Signature differs Stop payment instructions” as such the said finding is not correct. He also submits that the finding of the trial Court that the cheques were 2 AIR 2011 SC 2751 313 SCC 375 GSD J invalid on the ground that they were issued for a sum more than what is specified on them is not tenable since the said cheques were not returned by the banker on the said ground and they were returned on the ground that payment has been stopped by the drawer. He further submits that the finding of the trial Court that there is no mention about the cheque numbers in Ex.P6 is incorrect as in Ex.P6 there is a mention about handing over of two cheques by the accused to the complainant and also the amount for which the cheques were given. There is no plausible explanation from the accused why the cheques were signed and given by her to the complainant and therefore the accused failed to rebut the presumption without any iota of evidence much less preponderance of probabilities. Moreover the offence under Section 138 of the N.I. Act being a technical one the complainant established his case with cogent oral and documentary evidence and the accused failed to discharge her burden why the cheques were in the hands of the complainant. In support of his contentions he relied on the judgments of the Apex Court in Kishan Rao v. Shankar Gouda4 T.P.Muruganthrough L.Rs. v. Bojan5 and Rohitbhai Jivanlal Patel v. State of Gujrat6. Learned Counsel for the 1st respondent accused would submit that the learned trial Court has rightly acquitted the accused on the ground that she had creditably rebutted the presumption and 43 SCC455 53 SCc585 6Online SCC 389 GSD J established her defense that the impugned cheques were issued for the purpose of security only which can be evident from the terms and conditions stipulated in Ex.P6. He further submits that the trial Court has rightly observed that no document has been filed to show that the appellant had incurred an expenditure of Rs.3 00 00 000 towards identifying and procuring the site for the Petrol Pump and despite being an income tax payee the appellant had failed to file any income tax returns to show that he had incurred the said expenditure. He also submits that the trial Court rightly observed that there is no mention with regard to the cheque numbers and dates in Ex.P6 and that the appellant had filled up the same and deliberately presented the cheques despite knowing very well that the cheques contained the caption of “Not over Rs.10 00 000 “. He further submits that the accused had aptly rebutted the presumption through her reply notice dated 01.02.2016 wherein it is clearly substantiated factum that she had neither instructed nor assured the complainant to present the said cheques. The accused had discharged the burden cast on her by leading cogent oral and documentary evidence. He also submits that the complainant could not prove either through documentary or oral evidence that the accused had committed the offence under Section 138 of the N.I. Act and on the other hand she had adduced appropriate oral and documentary evidence to prove that she is innocent of the offence and prayed to dismiss the Criminal Appeal. In support of his 7 GSD J following judgments: contentions learned Counsel for the 1st respondent relied upon the 1. K.Subramani v. K.Damodara Naidu7 2. Indus Airways Private Ltd. And others v. Magnum Aviation Private Limited and another8 3. G.Ashok Kumar Goud v. P.Anjili Bai and another9 Considering rival contentions and perusing the material available on record the point that arises for determination is “Whether the cheques under Exs.P1 and P2 were issued towards discharge of legally enforceable debt or not The case of the appellant complainant is that the 1st respondent accused sought the assistance of the complainant for establishing a petrol bunk of Bharath Petroleum Corporation Limited promising to hand over the same for the management by the complainant. Believing the words of the accused complainant identified a suitable land in Ibrahimpatnam and invested huge amount of Rs.3.00 Crores for necessary works for opening of the retail outlets. The accused also executed a notarized declaration cum undertaking stating that she handed over the entire business to the complainant and she would relinquish her entire rights over the retail outlets and that she has received an amount of Rs.20.00 lakhs as full and final settlement dated 15.04.2013. Believing the words of the accused the complainant paid an amount 71 SCC 99 8Law Suit252 92 ALD126GSD J of Rs.20.00 lakhs as per terms and conditions mentioned in the said document. Due to non issue of chequesby the accused the complainant is not in a position to operate the said petroleum bunk and issued a legal notice to the accused on 27.09.2016 asking her to come forward by issuing necessary cheques for petroleum loads. Thereafter on intervention of elders the matter was Pursuant to the compromise and as per the terms and conditions of Ex.P6 the accused had issued the cheques towards discharge of legally enforceable debt. In the cross examination P.W.1 had admitted that he has not filed any document to show that he has incurred Rs.3.00 Crores for identifying the land for petroleum bunk and also admitted that he has not filed any bank statement to show that he has such huge amount in his bank account. Since P.W.1 failed to file any document the learned trial Court has rightly observed that the appellant has failed to establish that he is sound in finance and he has bank deposit of Rs.3.00 Crores and spent it for the purpose of installation of petrol bunk by identifying the land. Further though PW.1 admits that he was an income tax assessee but he has not shown the amount spent for installation of Petroleum bunk Rs.3.00 Crores in his tax returns during that period. Therefore a doubt arises whether the complainant was financially capable of spending such huge amount. In the absence of any corroborative evidence the version of the complainant cannot be GSD J accepted at its face value. Further in view of the admission made by PW1 that he is an income tax assessee the question would be whether non showing of the amount in his income tax return is sufficient to rebut a presumption that the cheque was not issued in discharge of a debt or liability. Identical issue came up for consideration before the Bombay High Court in Sanjay Mishra Vs. Ms. Kanishka Kappor @ Nikki and Another10 wherein the Court held as under: “7. It is true that merely because amount advanced is not shown in Income Tax Return in every case one cannot jump to the conclusion that the presumption under Section 139 of the Act stands rebutted. There may be cases where a small amount less than a sum of Rs.20 000 is advanced in cash by way of loan which may be repayable within few days or within few months. A complainant may not show the said amount in the Income Tax Return as it is repayable within few days or few months in the same financial year. In such a case the failure to show the amount in the Income tax Return may not by itself amount to rebuttal of presumption under Section 139 of the said Act. If in a given case the amount advanced by the complainant to the accused is a large amount and is not repayable within few months the failure to disclose the account in Income Tax return or Books of Accounts of the complainant may be sufficient to rebut the presumption under Section 139 of the Act.” Even in the instant case the amount spent by the complainant was not shown in his income tax returns. As such the trial Court had rightly held that it creates a doubt regarding the financial 10 2009 Crl.L.J. 3777 GSD J position of the appellant and if he really spent that much amount there must be record for him for withdrawal of amount from his bank account and spending the same. Further it would be appropriate to refer to the contents of Ex.P6 settlement agreement which reads as under: “This settlement agreement is made and executed on this the 15th days of October 2016 at Hyderabad by Smt. K.Yakamma Kalyani W o Balaji R o 8 1 750 R.T.C.Colony Nalgonda District : First party. R.Narender S o. R.Prasad Naik R o. Plot No.119 Narsimha Rao Nagar Saradha Nagar Vanasthalipuram R.R.District: Second party. Whereas the dispute were arisen between the first and second party in running petrol bunk by name M s. Adidas Guru Petros at Sheriguda Ibrahimpatnam R.R.District and the same is settled before the elders of both the parties and as per settlement the first party herein had agreed to pay an amount of Rs.70 00 000 as total settlement amount for which the second party had agreed to receive the same. The second party had agreed to handover the said Petrol Bunk to the first party today itself and the second party had agreed he shall not interfere in the schedule premises of the said petrol bunk from today onwards and agreed not interfere in the affairs of the business and day to day affairs. The first party had paid an amount of Rs.50 000 as advance out of total amount. The first party had agreed to pay the balance amount of Rs.69 50 000 on or before 01.11.2016 for which the first party had handed over the chequesdrawn on S.B.H. to the second party for an amount of Rs.69 50 000 as security for the amount. Both the parties here to put their hands on to this indenture with free GSD J will and consent without any coercion in the presence of following witnesses on this day month and year as aforementioned.” The contents of Ex.P6 settlement deed referred to above would clearly show that two cheques mentioned in the agreement does not specifically disclose one for Rs.34 50 000 and another for Rs.35 00 000 and that there is no mention with regard to the cheque numbers date and the amount in Ex.P6. Therefore the trial Court has rightly held that it creates a doubt whether the said cheques which were filed in the Court are the same cheques that were mentioned in Ex.P6 or otherwise. Further the contents of Ex.P6 also disclosed that cheques were issued only for security purpose. After verifying Ex.P1 and P2 cheques the trial Court found that they were valid each up to Rs.10.00 lakhs and the signatures of the accused on Exs.P1 and P2 are different from other writings in the cheques. It appears that blank cheques were given to the complainant for security purpose. Further since the limit mentioned in Exs.P1 and P2 for Rs.10.00 lakhs only the amount mentioned in Exs.P1 and P2 exceeding to Rs.10.00 lakhs the trial Court has rightly held that the said cheques were invalid cheques. Further the record also discloses that the accused had filed a private complaint against the father of the appellant complainant by name R.Prasad Naik alleging that he threatened the accused herein to execute an undertaking in favour of his son and while discussing with regard to the said issue he has also threatened her GSD J with dire consequences. The said private complaint was referred to the police under Section 156 of Cr.P.C. and basing on such reference the Police Ibrahimpatnam registered a case in F.I.R. No.4016 dated 17.10.2016 and after completion investigation police filed charge sheet. On 27.10.2016 itself the accused herein issued a notice to the complainant stating that the complainant had violated the terms and conditions of the settlement agreement by removing all the important files pertaining to the petrol bunk and also raised an illegal demand of excess amount and hence the accused had no option except to stop the payment of the said two cheques bearing Nos. 627842 and 627844 which were issued only for security purpose. From the above it is clear that after receiving the notice dated 27.10.2016 the complainant had filled up the cheques and presented the same on 01.11.2016. Therefore the trial Court has rightly held that the accused was successful to rebut the presumption available to her under Section 139 of Negotiable Instruments Act and concluded that the evidence placed on record by the complainant is not sufficient to prove the case against the accused beyond all reasonable doubt and accordingly acquitted her. For the aforesaid reasons I am of the opinion that the trial Court was perfectly justified in acquitting the 1st respondent accused and the citations relied upon by the learned Counsel for the complainant are not applicable to the facts of the present case. 13 GSD J Hence I see no reason to interfere with the findings of the trial Court. Accordingly the Criminal Appeal is dismissed confirming the judgment dated 12.09.2018 passed in C.C.No.817 on the file of the Special Magistrate Cyberabad at Hayathnagar. As a sequel thereto Miscellaneous Petitions if any pending JUSTICE G. SRI DEVI shall stand closed. 28.04.2021 gkv Gsn

The fees of the learned Arbitrator shall be according to Fourth Schedule of the Arbitration and Conciliation Act, 1996: High Court of Delhi

Justice (Retd.) V.K. Shali was appointed by the Honorable Delhi High Court as the sole arbitrator as held by Hon’ble Mr. Justice Suresh Kumar Kait in the case of Jindal India Limited vs. The Oriental Insurance Company Limited [ARB.P. 781/2021]. The facts of the present case are such that the petitioner claiming to be a producer of galvanized steel sheets, corrugated sheets, and coils, and exports its products to numerous countries across the globe and also supplies galvanized and black pipe segments to the oil and gas industry. Has taken an Insurance policy from the respondent Oriental Insurance Company Limited which is a state-owned non-life insurance company in India. On 27.09.21 an accidental fire broke out in the petitioners’ plant at jangalpur which caused significant damage to its aluminum foil rolling mill. In the present matter, the petitioner claimed to have suffered damages and have claimed to be covered under “Material Damage and Business Interruption” of the policy. The petitioner has made a claim of INR 19,31,69,106 whilst the surveyor namely Bhatawadekar Insurance Surveyor and Loss Assessors Private Limited appointed by the respondent assessed the damages to be at INR 13,31,13,073. After which the respondent issued INR 3,84,80,892 to the settlement of the 8I/LOP claim which is arising under the policy between the parties. The present petitioner asked for a copy of the report from the respondent, however, the petitioner alleges that the respondent’s reply did not contain the reasons for the assessment and after this, the clarification asked by the petitioner remained unanswered. In the present dispute, the Honorable Court concluded that the dispute is to be referred to an arbitrator under General Condition No.12, as contained in the insurance policy No. 311700/11/2017/711. In the present issue the petitioner has already nominated their arbitrator however the respondent has failed to respond within the stipulated time period of 30 days. The respondent has submitted to resolve the disputes inter se parties and in light of this the sole arbitrator is to be appointed by the Delhi High Court. Therefore, in the aforesaid issue, Justice (Retd.) V.K. Shali has been appointed to adjudicate the dispute between the present parties. The fees of the arbitrator are to be decided according to the Fourth Schedule of the Arbitration and Conciliation Act, 1996.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 17.09.2021 ARB.P. 781 2021 JINDAL INDIA LIMITED Through: Mr. Ishaan Chhaya Advocate ......Petitioner THE ORIENTAL INSURANCE COMPANY LIMITED Through: Ms. Sakshi Gupta Advocate HON BLE MR. JUSTICE SURESH KUMAR KAIT JUDGMENT The present petition has been preferred on behalf of petitioner seeking appointment of sole Arbitrator under the provisions of Section 11(6) of the Arbitration and Conciliation Act 1996. Petitioner claims to be producer of galvanized steel sheets corrugated sheets and coils and exports its products to numerous countries across the globe and also supplies galvanized and black pipe segments to the oil and gas industry. According to petitioner respondent is a state owned non life insurance company in India. According to petitioner on 27.09.2021 an accidental fire broke out at ARB.P. 781 2021 petitioner s plant at Jangalpur which caused significant damage to its aluminum foil rolling mill. Soon thereafter the petitioner claims to have informed the respondent about the accident its ensuing loss and the insurance claim arising under the “Material Damage and Business Interruption” of the policy. The respondent appointed the Bhatawadekar Insurance Surveyor and Loss Assessors Private Limited for assessing the loss and the surveyor submitted Final Survey Report on 31.08.2018 wherein he had assessed the loss at INR 13 31 13 073 against a claim of of INR 19 31 69 106 made by the petitioner. It is asserted on behalf of petitioner that on 31.12.2019 respondent issued INR 3 84 80 892 towards settlement of the 8I LOP claim arising under the Policy which also contained a pre printed statement that petitioner was voluntarily accepting the amount. The petitioner was insisted upon by the respondent to sign the discharge voucher without any protest. Vide letter dated 01.01.2020 petitioner sought a copy of the Surveyor’s report from respondent which was replied vide letter dated 02.01.2020 by the respondent but according to petitioner the said communication did not incorporate the reasons for assessment and thereafter all the communications made on behalf of petitioner seeking ARB.P. 781 2021 clarification thereon have remained unanswered. Therefore a notice dated 13.03.2021 was issued by the petitioner to the respondent invoking Learned counsel for petitioner submits that in pursuance to General Condition No.12 insurance policy No. 311700 11 2017 711 dated 13.01.2017 by the petitioner to the respondent the Arbitrator has to be appointed to adjudicate the disputes between the During the course of hearing learned counsel for petitioner submits that vide aforesaid Notice dated 13.03.2021 petitioner has already nominated its Arbitrator but respondent has failed to respond thereto within stipulated time of 30 days therefore the preset petition be allowed. During pendency of this petition learned counsel for respondent had sought time to obtain instructions. Today it is submitted by learned counsel that to resolve the disputes inter se parties sole Arbitrator be appointed by In view of the aforesaid Justice V.K. Shali is appointed sole Arbitrator to adjudicate the disputes between this Court. the parties. ARB.P. 781 2021 10. The fees of the learned Arbitrator shall be according to Fourth Schedule of the Arbitration and Conciliation Act 1996. 11. The learned Arbitrator shall ensure compliance of Section 12 of Arbitration and Conciliation Act 1996 before commencing the arbitration. 12. A copy of this order be sent to the learned Arbitrator for information SEPTEMBER 17 2021 SURESH KUMAR KAIT) JUDGE ARB.P. 781 2021

Passing of an interim order, does not confer any right of perpetuity: Odisha High Court

The interim order of the Civil Court to maintain status quo in respect of the possession over the property does not confer any right on the Petitioners to have their possession over the property declared as lawful for all purposes. The interim order, if any, passed by the competent court of law does not confer any right of perpetuity on the parties. It is only meant to serve as an interim arrangement. A single bench comprising of Justice B.P. Routray adjudicating the matter of Shikha Bhowmick v. The State of Odisha and Ors. (WRIT PETITION(CIVIL) No. 1885 of 2014 ) dealt with an issue of whether passing of an interim order passed by the Civil Court to maintain status quo conferred rights of possession to the Plaintiffs?  In the present case the orders of Collector, Puri and the Revenue Divisional Commissioner, Central Division, Cuttack passed under the provisions of Odisha Government Land Settlement Act and Rules have been assailed by the Petitioners. Babu Ashutosh Mallick was granted Khasmahal lease for a period of 30 year effective from 2nd December 1919 to 1st December 1949. On expiry, it was renewed twice for the period from 2nd December, 1949 to 1st December, 1979 and from 2nd December, 1979 to 1st December, 2009. Both the extensions were made in favour if the Legal representatives. A building “Ashu Bhavan” was constructed on the lease land by Babu Ashutosh Mallick and such building was further given on sub-lease with monthly tenancy for a period of fifteen years in favour of one Makhanlal Halder. The said Makhanlal Halder continued the hotel business in ‘Ashu Bhawan’ in the name and style of ‘Puri Hotel. Before expiry of 15 years Makhanlal Halder sub-leased the property to Jatindranath Bhowmick to run the hotel business in the name and style of ‘Sagarika Hotel’. After expiry of 15 years of Sub-lease on 26th August, 1967, the L. Rs of Ashutosh Mallick executed another Sub-lease on monthly tenancy in favour of Jatindranath Bhowmick for a period of twelve years eleven months effective from 2nd January, 1967 to 1st December, 1979. During this period, Bhowmick was permitted to make additional construction work on the land including the extension work of Ashu Bhawan to use for commercial purpose. In the meantime, Jatindranath Bhowmick died and a fresh Sub-lease was granted by the L. Rs of Ashutosh Mallick in favour of two daughter-in-laws of Jaitndranath Bhowmick (the present petitioners) for 10 years with effect from 2nd December, 1979 to 1st December, 1989 on payment of monthly rent. Before expiry of the said period of sub-lease, the L. Rs of Ashutosh Mallick served a notice on 30th May, 1989 on the Petitioners to handover vacant possession of the property immediately after 1st December, 1989. Since the Petitioners did not hand over the possession of the property, the L. Rs of Ashutosh Mallick filed a suit for title against the Petitioners praying a decree of eviction along with damages. To which the Defendents (presently Petitoners ) filed for temporary injunction restraining the plaintiffs from interfering with their peaceful possession and the court directed the Defendant to  pay monthly rent regularly. After several litigations in the present writ petition, it was contended by the Petitioners that once the matter was decided by the Tahasildar with the approval of the Collector and the registered lease deed was executed in favour of the Petitioners, no further scope remains for the Collector to cancel the permanent settlement and to resume the land, particularly ignoring the temporary status-quo order of the civil court. The Opposite parties contended that the Petitioners unauthorisedly occupied the lease hold property after 1st December, 1989 as they do not have any right to continue with possession of the property after expiry of the agreed sub lease period. The subsequent lease deed executed in their favour by the L.Rs of one branch during pendency of the eviction suit does not authorize their lawful possession. The court held that relied upon The general principle governing rights of the co-owners in a common property is that, one co-sharer has no right to alienate the entire property to confer exclusive right on the alienee without consent of other co-owners and such transfer is invalid for want of competency. However, Section 44 of the Transfer of the Property Act authorizes a co-owner to transfer his share subject to conditions.

IN THE HIGH COURT OF ORISSA AT CUTTACK WRIT PETITIONNo.1885 OF 2014 An application under Articles 226 & 227 of the Constitution of India.) Shikha Bhowmick and another Petitioners Versus State of Odisha and others Advocate(s) appeared in this case by Video Conferencing mode: ….… Opposite Parties For Petitioners For Opposite Parties Mr.Ramakanta Mohanty Sr.Advocate Additional Government Advocate Mr.Mahitosh Sinha Advocate For O.P.No.5 CORAM: THE CHIEF JUSTICE JUSTICE B.P. ROUTRAY JUDGMENT 17th June 2021 B.P. Routray J. 1. The orders of the Collector Puri and the Revenue Divisional Commissioner Central Division Cuttack vide Annexures 4 & 5 respectively passed under the provisions of Odisha Government Land Settlement Act and Rules have been assailed by the Petitioners. 2. Babu Ashutosh Mallick who is the common ancestor of Opposite Party Nos.5 to 27 was granted Khasmahal lease of the land appertaining to Plot No.500 measuring Ac.0280 dec.No.18814 Plot No.147 area Ac.298 dec) of Mouza Nolia Sahi under Balukhanda Khasmahal Unit No.12 Hal Khata No.33 Holding No.716 Circle No.X under Puri Municipality. The lease was for a period of thirty years effective from 2nd December 1919 to 1st December 1949. On expiry it was renewed twice for the period from 2nd December 1949 to 1st December 1979 and from 2nd December 1979 to 1st December 2009. Babu Ashutosh Mallick had four sons namely Jyoti Prasad Mallick Amiya Prasad Mallick Radha Gobindo Prasad Mallick and Shiva Prasad Mallick. Both the extensions were made in favour of the Legal Representativesof Babu Ashutosh Mallick. 3. A building namely ‘Ashu Bhawan’ was constructed over the leasehold land by the original lessee Babu Ashutosh Mallick. On 27th August 1952 the land along with ‘Ashu Bhawan’ was given on sub lease with monthly tenancy for a period of fifteen years in favour of one Makhanlal Halder. The said Makhanlal Halder continued the hotel business in ‘Ashu Bhawan’ in the name and style of ‘Puri Hotel’. Before expiry of fifteen years Makhanlal Halder by subsequent Sub lease inducted one Jatindranath Bhowmick to run the hotel business in the name and style of ‘Sagarika Hotel’. Upon expiry of fifteen years period of Sub lease on 26th August 1967 the L.Rs of Ashutosh Mallick executed another Sub lease on monthly in favour of Jatindranath Bhowmick for a period of twelve years eleven months effective from 2nd January 1967 to 1st December 1979. During this period Bhowmick was permitted to make additional construction work on the land including the extension work of Ashu Bhawan to use for commercial purpose. In the meantime Jatindranath Bhowmick died and a fresh Sub lease was granted by the L.Rs of Ashutosh Mallick in favour W.P.(C) No.18814 of two daughter in laws of Jaitndranath Bhowmick viz. Smt.Sikha Bhowmick and Smt. Ruby Bhowmick the present Petitioners for a period of ten years with effect from 2nd December 1979 to 1st December 1989 on payment of monthly rent. Before expiry of the said period of sub lease the L.Rs of Ashutosh Mallick served a notice on 30th May 1989 on the Petitioners to handover vacant possession of the property immediately after 1st December 1989. The said notice is reproduced below: “BY SPEED POST WITH A D FOR AND ON BEAHLF OF SRI DHRUBA PRASAD MALLICK SHRI ALOK KUMAR MALLICK AND OTHERS LESSORS IN RESPECT OF PROPERTY FROM EARLIER AS ASHU BHAWAN SITUATED IN THE SEA BEACH AT PURI Smt.Sikha Bhowmik w o.Sri D.K.Bhowmik Smt.Ruby Bhowmik w o.Sri Anup Kumar Bhowmik At Hotel Sagarika Dear Madam The Lessors have transmitted the document as executed between you and then on 13.7.1981 in respect of lease of the property as owned by the lessors and situated in the sea beach at Puri and known then as Ashu Bhawan. By virtue of the said agreement you have had been carrying on hotel business in the said property or existing of land and building on payment of monthly rent. As instructed by my clients I am to invite your kind attention to Clause I of and as well Clause VII of the said agreement. For convenience they are extracted hereunder: The lease of the premises mentioned in the schedule herein below shall be for a period of ten years commencing on and from the 2nd day of December 1979 and shall expire on the 1st day of December 1989 W.P.(C) No.18814 The Lessees shall keep in deposit with the lessors a sum of Rs.10 800 only being six month rent as security deposit which shall be adjusted against the rents payable for the said demised premises for the last six months of the lease.” Purpose of this letter is to invite your kind attention to the date of expiry of the lease agreement which in first expires on 1st December 1989. My clients have decided not to let out the said property any more. In fact they are now in need of such a building in order to be able to use it for their own residence in old age and for health care. It would be really kind of you if you please make it convenient to give vacant possession of the said property on or immediately after the date of expiry of the lease as agreed to in the aforesaid agreement which as you may kindly recall expires on 1st December 1989. It is further brought to your kind notice that no rent need be paid for the last six months since the rent would be adjusted by virtue of clauseof the said agreement. My clients will really be happy if you kindly acknowledge the receipt of this letter and please do the needful in pursuance of the said agreement and now reminded herein. My clients are hopeful that the arrangement would be effected peacefully and in the most gentleman like manner. May I also thank you in anticipation of your kind co operation in the matter. Place: as follows: Yours faithfully No.18814 one hand and the undersigned on the other hand we became lessees in respect of your house and premises known as “ASHU BHABAN” with the land appurtenant thereto at Puri for a period of 10 years commencing on and from 2nd day of December 1979 and expiring on the 1st day of December 1989 at a rental of Rs.1 600 per month for the first five years and Rs.1 800 per month for the remaining five years payable according to the English Calendar month. Under the said lease we the Lessees are also liable further to pay to the State Government the rent of the land payable by you at the rate of Rs.357 annually and also the Municipal Taxes payable for the demised premises amounting to Rs.1 028 30 per year. That the Lease aforesaid expires on the 1st day of December 1989 and we the Lessee being desirous of continuing our possession of the said premises as tenant after the said date of expiry of the Lease for a further period of twelve months at the said rate of rent hereby give you notice under Section 11 of the Orissa House House Rent Control Act 1967 and we hope you will be good enough to extend the term of tenancy for a further period of twelve months commencing from the expiry of 1st December 1989 in other words commencing on and from the 2nd day of December 1989. Please also take note of the fact that the rent payable in respect of the said premises under said Deed of Lease dated the 13th July 1981 has been paid up until the date of the said Lease i.e. up to and including 1st day of December. The rent of the said premises will be remitted to you month by month or if you so choose the same may be sent in a lump for the whole period of twelve months at a time. In case of your refusal to accept rent from us we shall be constrained to deposit the said with the office of the Controller under the Orissa House Rent Control Act 1967 which please note. Thanking you Yours faithfully ” 5. As the Petitioners did not hand over vacant possession of the property the L.Rs of Babu Ashutosh Mallick filed Title Suit No.9 of 1990 in the court of the learned Sub ordinate Judge Puri against the Petitioners praying for a decree for eviction along with damages. The present Petitioners who are defendants in T.S.No.9 of 1990 filed Misc.Case No.2291 praying for temporary injunction restraining W.P.(C) No.18814 the plaintiffs from interfering with their peaceful possession. Learned Sub Judge Puri by order dated 31st March 1992 directed to maintain status quo in respect of the suit property subject to deposit of agreed monthly rent regularly in Court by the present Petitioners. 6. The Odisha Government Land Settlement Act 1962underwent amendment by Odisha Act No.1 of 1991 and Sub section 4 to Section 3 was inserted with effect from 2nd September 1993. It reads as follows: “(4) Notwithstanding anything to the contrary contained in the preceding subsections or in any law or any custom practice or usage having the force of law a) any Khasmahalland or Nazul land except where such land is used as homestead in any urban area which has been leased out prior to the appointed date shall whether the lease where it had already expired has been renewed or not prior to such date be deemed to have been leased out under this Act to the person holding such land whether as a lessee or as a sub lessee either under the lessee or under a sub lessee: Provided that a) i) from sub lessee under him or any such lessee who is entitled to receive any rent any such sub lessee who is entitled to receive any ii) rent from a subsequent sub lessee under him. under any instrument executed for such lease or sub lease as the case may be shall be paid a compensation by the sub lessee or subsequent sub lessee as the case may be equivalent to ten times the said rent in the manner as may be prescribed. b) The compensation so payable shall if not paid by the concerned sub lessee or subsequent sub lessee as the case may be within the prescribed period be recoverable from him by the Tahasildar having jurisdiction over the area as arrears of land revenue and be paid to the concerned lessee or sub lessee as the case may be in the manner as may be prescribed: W.P.(C) No.18814 c) any Gramakantha Parambok land or Abadi land except where such where such land is used as homestead in any urban area which is in occupation by any person for not less than five years as on the appointed date shall be settled with the said person in such manner by such officer and subject to such terms and conditions as may be prescribed: Provided that any such land which is situated in an urban area shall be settled on lease hold basis and in case of other lands settlement shall be on raiyati basis: c) any Khasmahal land Nazul land Gramakantha Parambok land or Abadi land which is used and in occupation by any person as homestead in any urban area for not less than five years as on the appointed date shall subject to the payment of compensation in the case of Khasmahal and Nazul land as mentioned in the proviso to Clausebe settled in the case of Khasmahal or Nazul land with the person lawfully holding such land on and from the date the compensation is paid: and in the case of Gramakantha Parambok and Abadi land with the person in occupation of such land on and from the appointed date on permanent basis with heritable and transferable rights. Explanation For the purposes of this sub section the expression ‘appointed date’ shall mean the date of publication of the Orissa Government Land Settlement Act 1990 in the official 7. Correspondingly Rule 5 B was inserted in Orissa Government Land Settlement Rules 1983 with effect from 7th December 1993 which reads as follows: “5 B. Notwithstanding anything contained in Rules 3 5 5 A 8 11 12 13 settlement of Khasmahal and Nazul land Gramakantha Parambok and Abadi land leased out prior to the 9th day of January 1991 shall be made in the manner prescribed in Schedule V.” 8. Clasue 3 of Schedule V reads as under: “3. Nazul Khasmahal lands used as homestead in urban areaTahasildar on being satisfied after enquiry that W.P.(C) No.18814 any Nazul Khasmahal land is used and in occupation by any person as homestead for a period of not less than five years as on the appointed day shall settle the said land in favour of the person holding such land on execution of lease deed in Form IV. In case of a sub lessee and subsequent sub lessee such settlement shall take effect on production of the stamped receipt in Form 1 from the date of payment of such compensation to the personimmediately under whom they held the land: Provided that on each such settlement approval of the Collector shall be obtained. The amount of compensation shall be equal to ten times of the annual rent as provided in the lease deed.” 9. During pendency of the Eviction Suit the L.Rs of late Shiva Prasad Mallick executed Lease Deed No.3670 dated 29th October 1993 creating sub lease in favour of the Petitioners for a period of ten years with effect from 1st December 2009. 10. Here the real dispute erupts. 11. In 1995 the Petitioners applied for permanent settlement of the property in their favour under Section 3(4)(a) of the O.G.L.S.Act in BPL Case No.995 to the Tahasildar Puri. The Tahasildar allowed the prayer of the Petitioners on 30th April 1997 with approval of the Collector Puri and settled the property in the name of the Petitioners. 12. The other L.Rs of Babu Ashutosh Mallick filed O.J.C. No.8691 of 2000 before this Court challenging the aforesaid lease made in favour of the Petitioners. By order dated 18th March 2008 the said writ application was disposed of as withdrawn to approach the R.D.C.(CD) Cuttack in appeal. Then Khasmahal Appeal No.1 of 2008 was filed before the R.D.C. by the present Opposite Party No.5 and the R.D.C. by order dated 28th November 2008 remitted the matter back to the W.P.(C) No.18814 Collector Puri for re examination with direction to resume the land first if necessary and take steps to lease out the same to the eligible person as per the law. The said order of the R.D.C. was challenged by the present Petitioners in W.P.(C) No.1961 of 2012 before this Court and this Court while declining to interfere with the order of R.D.C. disposed of the same with an observation that the Collector Puri is directed to decide matter and consider all other contentions to be raised by either parties in accordance with law. Thereafter the Petitioners moved before the Hon’ble Supreme Court in SLP(C) No.175912. The Supreme Court by order dated 13th July 2012 disposed of the S.L.P. with following directions: “After having heard learned counsel for the petitioners and after perusal of the record we are not inclined to interfere against the impugned order passed by the Division Bench of the High Court as by the same matter has only been remanded to Collector Puri to decide the issue in accordance with law. However Division Bench has also directed that the land should be resumed first before considering the question of grant of fresh lease. Once the matter has been remanded for inquiry and if land is also resumed then it would put the petitioners to an irreparable loss and injury. Admittedly the petitioners are in possession of the said disputed land since 21.6.2000 by virtue of the Deed of Lease duly executed by the Government of Orissa in favour of the petitioners and it is a registered document. Thus looking to the facts and features of the case we deem it fit and proper to direct the Collector to dispose of the matter as expeditiously as possible and preferably within a period of 30 days from the date of communication of this order and only till the disposal of the matter by the Collector the possession of the petitioners shall not be disturbed if they still continue to be in possession. It is also expected that none of the parties would seek undue adjournment of the matter. Special leave petition is accordingly disposed of. Registry is directed to remit the copy of the order to Collector Puriforthwith.” W.P.(C) No.18814 13. The Collector Puri by order dated 13th December 2013 disposed of the matter by directing as follows: “.. XX …. XX …. XX .. a) Permanent Settlement in BPL Case No.94 95 is hereby cancelled. The land is resumed to Government. b) Tahasildar Puri is directed to correct ROR of the case land to Govt.khata and intimate DSR Puri for cancellation of lease deed. Petitioners are directed to vacate the building and its premises within one month i.e. by 15th January 2014. d) Tahasildar Puri is directed take over possession of the land and building by 16.1.2014. e) No compensation is awarded to either of the parties. Prayer of both parties is rejected. Possession of the land and building by petitioners is hereby vacated by 15th January 2014. g) ADM Sub Collector are directed to ensure the compliance of the above order by Tahasildar. Fresh lease to be considered by the Competent Authority in accordance with law. XX …. XX …. XX ….” 14. The Petitioners preferred Khasmahal Lease Appeal No.1 of 2014 against the order of the Collector Puri dated 13th December 2013. The R.D.C. by order dated 3rd January 2014 dismissed the appeal filed by the Petitioners. These two orders of the Collector and R.D.C. are the subject matter of challenge before this Court in the present writ petition. 15. It is contended by the Petitioners that once the matter was decided by the Tahasildar with the approval of the Collector and the registered lease deed was executed in favour of the Petitioners no further scope W.P.(C) No.18814 remains for the Collector to cancel the permanent settlement and to resume the land particularly ignoring the temporary status quo order of the civil court. It is also contended that on 3rd January 2014 after a lengthy hearing from both sides the R.D.C. reserved the order in the matter of stay but to their utter surprise receipt of certified copy of the order dated 3rd January 2014 reveals dismissal of the appeal. Further as per the Petitioners the R.D.C. erroneously construed the appeal as a revision and disposed of the same by a cryptic order. 16. On the contrary Opposite Party No.5 contends that the Petitioners unauthorisedly occupied the lease hold property after 1st December 1989 as they do not have any right to continue with possession of the property after expiry of the agreed sub lease period. The subsequent lease deed executed in their favour by the L.Rs of one branch during pendency of the eviction suit does not authorize their lawful possession. Thus the order passed by the Tahasildar in BPL Case No.94 of 1995 was illegal and as such cancelled by the Collector. 17. Admittedly the property has not been partitioned till date. The general principle governing rights of the co owners in a common property is that one co sharer has no right to alienate the entire property to confer exclusive right on the alienee without consent of other co owners and such transfer is invalid for want of competency. However Section 44 of the Transfer of the Property Act authorizes a co owner to transfer his share subject to conditions. 18. Undisputedly the sub lease agreement in favour of the Petitioners expired on 1st December 1989 and much prior to that a notice was W.P.(C) No.18814 served on the Petitioners to hand over vacant possession of the property. Since the Petitioners did not vacate the premises T.S.No.90 was filed by Opposite Party No.5 and other L.Rs for eviction of the Petitioners from the land and premises. Thus without any valid authority the continued possession of the property by the Petitioners after 1st December 1989 was unauthorized and they had to be treated as trespassers from 2nd December 1989 onwards. When the status of the Petitioners remains as such from 2nd December 1989 onwards in respect of the property and the suit for their eviction is pending adjudication the interim order of the Civil Court to maintain status quo in respect of the possession over the property does not confer any right on the Petitioners to have their possession over the property declared as lawful for all purposes. The interim order if any passed by the competent court of law does not confer any right of perpetuity on the parties. It is only meant to serve as an interim arrangement. Therefore the contention of the Petitioners that they are in possession of the property by virtue of the interim order of the civil court or that they were in possession for the preceding five years on the day of coming into force of the newly inserted Sub section 4 to Section 3 of the O.G.L.S Act cannot be interpreted in their favour as rendering their possession on the appointed day as lawful. As such no benefit can be extended in favour of the Petitioners on that score. 19. Moreover Section 4 of Section 3 of the O.G.L.S. Act uses the words ‘…. the person holding such land whether as a lessee or as a sub lessee either under the lessee or under a sub lessee’ which means the holder of the land must be a lessee or a Sub lessee or a subsequent W.P.(C) No.18814 Sub lessee. Here in the instant case strictly speaking the Petitioners were not the lessee or Sub lessee in view of expiration of the Sub lease agreement period on 1st December 1989. It is true that possession of the Petitioners over the property prior to 2nd December 1989 was not to the exclusion of the Opposite Parties. The possession of the Opposite Parties over the property as lessors of the Sub lease continued after the expiry of the Sub lease period on 1st December 1989. Rather the possession of Petitioners ended on the expiry of the Sub lease period coupled with their being served a notice for eviction. Therefore there is no legal error in the order of the Collector directing resumption of the land. 20. Clause 3 of Schedule V of the O.G.L.S. Rules requires that the land must be in use and in occupation as a homestead for a period of not less than five years on the appointed day. As per admitted contention of both the parties the land and building were used as a hotel for commercial purpose and not as homestead. Therefore here too the Petitioners cannot take any benefit from the amended provisions. 21. The contention of the Petitioners that the appellate authority passed the final order on the day of hearing of the stay application also does not hold good on merit in the absence of materials placed on record. The order dated 3rd January 2014 is the final order. Though the said order of the R.D.C. under Annexure 5 appears to be a cryptic one in the absence of any grounds on merit in favour of the Petitioners and in view of long pendency of the writ petition before this Court we W.P.(C) No.18814 do not think it appropriate to remand the matter to the appellate authority at this stage after a period of more than six years. 22. For the aforementioned reasons and particularly in the absence of any right in the Petitioners to continue to be in possession of the land and property after 1st December 1989 we find no merit in the writ petition and the same is hereby dismissed. No order as to costs. 23. Any observation made in this judgment shall not affect the merits of T.S.No.90. 24. As the restrictions due to resurgence of COVID 19 situation are continuing learned counsel for the parties may utilize a printout of the order available in the High Court’s website at par with certified copy subject to attestation by the concerned advocate in the manner prescribed vide Court’s Notice No.4587 dated 25th March 2020 as modified by Court’s Notice No.4798 dated 15th April 2021. B.P.Routray) Judge Chief Justice 17th June 2021 C.R.Biswal Secretary W.P.(C) No.18814

Groping a child’s breasts would not amount to “Sexual Assault” under POCSO Act: Bombay High Court

Only skin-to-skin contact with the child’s breasts will be considered as an offence under POCSO, Act, otherwise, it will only be considered as molestation under IPC and not as “Sexual Assault”. In the judgment of Satish vs. State of Maharashtra [Criminal Appeal no.161 of 2020], the HC bench consisting of Hon’ble Justice Pushpa V Ganediwala gave the judgment by stating the above-cited reasons. In the instant case, December 14, 2016, the accused, took the young girl to his house on the pretext of giving her guava, pressed her breast, and attempted to remove her Salwar, an FIR was registered immediately. The prosecution examined five witnesses, the mother, survivor, a neighbor who heard the child scream for before her mother, and two police officers and hence, was held guilty for sexually assaulting a 12-year-old girl, for which now he has been sentenced to 1 year of imprisonment u/s 354 of IPC [outraging a woman’s modesty]. “Sexual Assault” u/s 8 of the POCSO, Act attracts a minimum sentence of 3 years, whereas outraging the woman’s modesty u/s 354 of IPC only attracts imprisonment for one year. In the present case, HC Bench alleged that stricter proof and serious allegations are needed for giving the punishment u/s 8 of the POCSO, Act as compared to Section 354 of IPC. The bench stated that “The act of pressing of the breast of the child aged 12 years, in the absence of any specific detail as to whether the top was removed or whether he inserted his hand inside top and pressed her breast, would not fall in the definition of ‘sexual assault’.” In the definition of “Sexual Assault”, interpretation of “Physical contact” was given the most importance, which is assumed as direct physical contact i.e. skin -to- skin contact with sexual intent without penetration. In the present case, it was observed that the accused didn’t remove her top but only groped her breasts from the outside. Hence, there was no direct physical contact between the accused and the victim. Hence, the HC held him guilty for u/s 354, 363 (Kidnapping), and 342 (Wrongful Restraint) of IPC. But not held guilty u/s 342, 354 of the IPC and u/s 8 of POCSO Act.

on 22 01 2021 on 24 01 apeal161.20.odt 1IN THE HIGH COURT OF JUDICATURE AT BOMBAYNAGPUR BENCHCRIMINAL APPEAL NO. 161 OF 2020Satish s o Bandu Ragde aged about 39 years occupation Private Work r o Gond Mohalla DeepakNagar Behind SurendragarhDurga Mandir Nagpur.... APPELLANTVersusThe State of Maharashtrathrough Police Station Officer Gittikhadan Nagpur.… RESPONDENTShri Sk. Sabahat Ullah Advocate for the appellant.Shri M.J. Khan APP for the respondent.….. CORAM : PUSHPA V. GANEDIWALA J. JANUARY 19 2021.ORAL JUDGMENT : Heard Shri Sk. Sabahat Ullah learned counsel forthe petitioner and Shri Khan learned APP for the respondent.2.This is an appeal against the judgment and order dated05.02.2020 in Special Child Protection Case No. 217 passedby the Extra Joint Additional Sessions Judge Nagpur by which the on 22 01 2021 on 24 01 apeal161.20.odt 2appellant is convicted for the offence punishable under Sections354 363 and 342 of the Indian Penal Codeand Section 8 of the Protection of Children from SexualOffences Act 2012 inCrime No. 4016 registered at Police Station Gittikhadan Nagpur District Nagpur.3.For the offence punishable under Section 8 of thePOCSO Act read with Section 354 of the IPC the appellant issentenced to suffer R.I. for three years and to pay fine of Rs. 500 in default of fine to suffer R.I. for one month. For the offence punishable under Section 363 of the IPC the appellant is sentenced to suffer R.I. for two years and to pay fineof Rs. 500 in default of fine to suffer R.I. for one month. For the offence punishable under Section 342 of the IPC the appellant is sentenced to suffer R.I. for six months and to payfine of Rs. 500 in default of fine to suffer R.I. for one month. All the substantive jail sentences were directed to runconcurrently. The appellant is given set off for the period ofsentence he has already undergone.4.The prosecution story in brief is as under : on 22 01 2021 on 24 01 apeal161.20.odt 3i)On 14.12.2016 the informant(PW 1) lodged a report at police station Gittikhadan Nagpur stating therein that the appellant took her daughter(prosecutrix) aged about 12 years on the pretext of giving herguava in his house and pressed her breast and attempted to removeher salwar. At that point of time the informant reached the spotand rescued her daughter. Immediately she lodged FirstInformation Report. On the basis of the said FIR crime came to beregistered against the appellant accused vide Crime No. 405 of2016for the offence punishable under Sections 354 363and 342 of the IPC and under Section 8 of the POCSO Act.5.The police started investigation. After investigation charge sheet came to be filed in the Special Court Nagpur againstthe appellant.6.The Special Court framed chargeagainst theappellant accused under Sections 361 354 342 and 309 of theIPC and under Section 8 of the POCSO Act. The said charge wasread over and explained to the appellant accused to which hedenied. His plea was recorded.7.In order to establish the guilt against the appellant on 22 01 2021 on 24 01 apeal161.20.odt 4accused the prosecution examined in all five witnesses and alsobrought on record the relevant documents.PW 1 is the informant mother of the prosecutrix. PW 2 is the prosecutrix.PW 3 is the prosecution witnesswent to bring guava.As she did not come back for a long time she started searchingfor her. Her neighbour told her that the appellant who wasstaying in the vicinity of their house took her daughter to hishouse and showed her the house of the appellant. PW1 wentthere calling “Laxmi Laxmi”. She saw the appellant comingdown from the first floor. She asked the appellant about thewhereabouts of her daughter. He denied the presence of theprosecutrix in his house. PW 1 searched for her daughter onthe ground floor and then she went up to first floor. The roomwas bolted from outside. She opened it and found her on 22 01 2021 on 24 01 apeal161.20.odt 6daughter. Her daughter was crying. She took out her daughterfrom that room and her daughter narrated the incident that onthe pretext of giving guava to her the appellant brought her tohis house and pressed her breast and when he tried to removeher knicker she shouted. Thereafter he went out after boltingthe room from outside. Immediately PW 1 along with herdaughter proceeded for Police Station and lodged report. 13.PW 2 Prosecutrix testified that on the day ofincident when she was going to bring guava the appellantcaught her hand and told her that he will provide guava to herand he took her to his house. He tried to remove her Salwarand pressed her breast. Then she shouted. The appellantpressed her mouth by his hand. The appellant went down byclosing the door of the room from outside. Thereafter hermother opened the door and entered the room and brought heroutside. Then they went to Police Station for lodging report.14.PW 3 the neighbour is examined on the point thatshe had heard the shouts of a girl and she informed PW 1 on 22 01 2021 on 24 01 apeal161.20.odt 7about it. 15.A perusal of the testimony of PW 1 and PW 2 on thepoint of incident would reveal that both the witnesses areconsistent on the point that the appellant pressed the breast ofthe prosecutrix. With regard to removing of knicker though inher chief PW 1 stated that the appellant accused was trying toremove knicker of her daughter however in cross examinationshe has corrected her statement and deposed that she told thepolice that the appellant tried to remove Salwar of herdaughter. The prosecutrix deposed about removing of hersalwar. So there is no confusion with regard to whether theaccused tried to remove salwar or knicker. 16.Now the question for consideration of this court is whether the ‘pressing of breast’ and ‘attempt to remove salwar’would fall within the definition of ‘sexual assault’ as definedunder Section 7 and punishable under Section 8 of the POCSOAct. For better appreciation of evidence it would be necessary tolook into the definition of ‘sexual assault’ which is reproduced on 22 01 2021 on 24 01 apeal161.20.odt 8below:7. Sexual assault Whoever with sexual intenttouches the vagina penis anus or breast of thechild or makes the child touch the vagina penis anus or breast of such person or any other person or does any other Act with sexual intent whichinvolves physical contact without penetration issaid to commit sexual assault.As per this definition the offence involves the followingnecessary ingredients :(i)Act must have been committed with sexual intent.(ii)Act must involve touching the vagina penis anus or breast of the child.ormaking the child touch the vagina penis anus orbreast of such person or any other person.ordoing any other act with sexual intent whichinvolves physical contact without penetration.17.The appellant accused is convicted for the offence of‘sexual assault’. As per the definition of ‘sexual assault’ a ‘physicalcontact with sexual intent without penetration’ is an essentialingredient of the offence. The definition starts with the words on 22 01 2021 on 24 01 apeal161.20.odt 9“Whoever with sexual intent touches the vagina penis anus orbreast of the child or makes the child touch the vagina penis anusor breast of such person or any other person or does any other actwith sexual intent…...’ The words ‘any other act’ encompasseswithin itself the nature of the acts which are similar to the actswhich have been specifically mentioned in the definition on thepremise of the principle of ‘ejusdem generis.’ The act should be ofthe same nature or closure to that.18.Evidently it is not the case of the prosecution thatthe appellant removed her top and pressed her breast. Thepunishment provided for offence of ‘sexual assault’ is imprisonmentof either description for a term which shall not be less than threeyears but which may extend to five years and shall also be liable tofine. Considering the stringent nature of punishment providedfor the offence in the opinion of this Court stricter proof andserious allegations are required. The act of pressing of breastof the child aged 12 years in the absence of any specific detailas to whether the top was removed or whether he inserted hishand inside top and pressed her breast would not fall in thedefinition of ‘sexual assault’. It would certainly fall within the on 22 01 2021 on 24 01 apeal161.20.odt 10definition of the offence under Section 354 of the Indian PenalCode. For ready reference Section 354 of the Indian PenalCode is reproduced below :“354. Assault or criminal force to woman with intentto outrage her modesty. Whoever assaults or usescriminal force to any woman with the intention tooutrage her modesty shall be punished withimprisonment of either description for a term whichshall not be less than one year but which may extendto five years and shall also be liable to fine.”19.So the act of pressing breast can be a criminalforce to a woman girl with the intention to outrage hermodesty. The minimum punishment provided for this offenceis one year which may extend to five years and shall also beliable to fine.20.It is the basic principle of criminal jurisprudencethat the punishment for an offence shall be proportionate tothe seriousness of the crime. on 22 01 2021 on 24 01 apeal161.20.odt 1121.Section 7 of the POCSO Act defines sexual assaultand the minimum sentence provided is three years and Section354 of the Indian Penal Code which is related to outraging themodesty of a woman prescribes minimum sentence of oneyear. In the instant case having regard to the nature of thealleged act by the appellant and having regard to thecircumstances in the opinion of this Court the alleged act fitinto the definition of the offence as defined in Section 354 ofthe Indian Penal Code.22.The learned counsel for the appellant stronglyargued with regard to testimony of PW 1 she being a hearsaywitness. No doubt PW 1 does not claim to have seen theincident however her testimony would be relevant andadmissible in evidence under Section 6 of the Evidence Act.The principle of res gestea would be applicable being part ofthe same transaction. Evidently she went to the house of theaccused searching for her daughter she saw the accusedcoming down from the first floor she inquired with theappellant accused about her daughter he refused her on 22 01 2021 on 24 01 apeal161.20.odt 12presence she searched for her daughter on the ground floor she went upwards she found the door of the room bolted fromthe outside she opened the door she found her daughtercrying she brought her daughter out of room her daughternarrated the incident to her. All these events form the parts ofthe same transaction. 23.The learned counsel for the appellant also arguedwith regard to the mental capacity of the girl which wasobserved by the learned trial Court while recording hertestimony. It is true that as per demeanor of the witness shemight not have that mental intelligence however the learnedcounsel could not point out from the record that she was not acompetent witness and her answers to the questions were notrational. Secondly immediately after the incident she narratedthe incident to her mother and on that basis the FirstInformation Report came to be lodged and on material point offacts the testimonies of both mother and daughter areconsistent. on 22 01 2021 on 24 01 apeal161.20.odt 1324.PW 3 is the witness who informed PW 1 about thefact that she heard the noise of her daughter from the house ofthe appellant. The learned counsel pointed out some omissionsin her testimony with regard to shouting of the girl “Maa Maa”.These are not the material omissions to disbelieve theprosecution story. Fact remains that she informed PW 1 thatshe heard shouts from the house of the appellant and PW 1went there and she found her daughter. Other witnesses areformal in nature.25.The learned APP read out Section 7 of the POCSOAct which defines sexual assault and submitted that the actwhich has been proved by the prosecution “pressing of breast”comes within the definition of sexual assault under Section 7 ofthe POCSO Act.26.It is not possible to accept this submission for theaforesaid reasons. Admittedly it is not the case of theprosecution that the appellant removed her top and pressedher breast. As such there is no direct physical contact i.e. skin on 22 01 2021 on 24 01 apeal161.20.odt 14to skin with sexual intent without penetration.27.In view of the above discussion this Court holds thatthe appellant is acquitted under Section 8 of the POCSO Actand convicted under minor offence u s 354 of IPC andsentenced him to undergo R.I. for one year and to pay fine ofRs.500 in default of fine to suffer R.I. for one month. Thesentence for the offence punishable under Section 342 of theIndian Penal Code i.e. six months and fine of Rs.500 indefault to suffer R.I. for one month is maintained. Theaccused is on bail. His bail bond stands forfeited. Issue Non bailable warrant against the appellant accused. All thesubstantive jail sentences shall run concurrently and theappellant accused is entitled for set off under Section 428 ofthe Code of Criminal Procedure.28.Criminal Appeal stands disposed of accordingly.JUDGE GS.

Nizam & Anr. V/s. State of Rajasthan

“Last seen theory” is an important link in the chain of circumstances that would point towards the guilt of the accused with some certainty. The facts of the case is that deceased-Manoj was the helper on the truck No.MP-07-2627 and had gone to Pune and thereafter to Barar alongwith his first driver Raj Kumar   (PW-2) and second driver Ram Parkash (PW-1) and from Barar they loaded the truck with pipes for destination to Ghaziabad on 23.01.2001.  Accused-appellants Nizam and Shafique who were the driver and cleaner respectively on the truck No. DL-1GA-5943 also loaded their truck with pipes from the same company on the same day at Barar and started for Ghaziabad along with truck No.MP-07-2627. During this period drivers and cleaners of both the trucks developed acquaintance with each other.  While on the way to Ghaziabad, driver Raj Kumar (PW-2) of truck No.MP-07-2627 got into quarrel with some local persons and consequently Barar police detained him along with his truck. Faced with such situation, Raj Kumar (PW-2) instructed his second driver Ram Parkash (PW-1) to hand over the amount of Rs.20,000/to Manoj with instructions to give the money to the truck owner.  Accordingly, Manoj left for Gwalior with accused persons by the truck No.DL-1GA-5943 on 23.01.2001.Dead body of deceased-Manoj was found on 26.01.2001 under suspicious circumstances in a field near village Maniya. On 26.01.2001 at about 3.00 O’clock, one Koke Singh (PW-13) went to collect the fodder and found a dead body lying in the field and the same was informed to Shahjad Khan (PW-4).  Based on the written information by Shahjad Khan (PW-Case was registered in FIR No.16/2001 under Sections 302 and 201 IPC on 26.01.2001 at Thana-Maniya, District Dholpur. Gullu Khan (PW-16)-Investigating Officer seized the dead body and prepared a Panchnama.  One bilty  (Ex. P17) of Uttar Pradesh, Haryana Roadlines (Pune) and one receipt (Ex. P18) of Madhya Pradesh Government, Shivpuri Naka pertaining to truck No. DL-1GA-5943 were recovered from the pocket of trouser of deceased-Manoj and in the said bilty     (Ex.P-17), name of the driver was mentioned as Nizam and truck No.DL-1GA-5943 and some phone numbers.  Based on the 2clues obtaining in the bilty, accused Nizam and Shafique were arrested on 27.01.2001 and the truck No.DL-1GA-5943 was recovered. After due investigation, chargesheet was filed against the appellants-accused under Sections 302 and 201 IPC. PROCEDURAL HISTORY Additional Sessions Judge, Fast Track Court No.2, Dholpur held that the appellants-accused committed murder of deceased-Manoj to grab Rs.20,000/- and the prosecution has established the circumstances proving the accused-appellants guilty under Sections 302 and 201 IPC and sentenced each of them to undergo life imprisonment with a fine of Rs.2,000/- with default clause and two years rigorous imprisonment with a fine of Rs.500/- with default clause respectively.Aggrieved by the verdict of conviction, appellants-accused preferred appeal before the High Court of Rajasthan, which vide impugned judgment dismissed the appeal thereby confirming the conviction of the accused-appellants and also respective sentence of imprisonment and fine amount imposed on each of them. Being aggrieved, the appellants have preferred this appeal.This appeal assails the correctness of the judgment dated 01.07.2005 passed by the High Court of Judicature at Rajasthan Jaipur Bench in Criminal Appeal No.1248 of 2002, whereby the High Court confirmed the conviction of the accused-appellants under Sections 302 and 201 IPC and sentence of life imprisonment imposed on each of them with a fine of Rs.2,000/- with default clause and also two years rigorous imprisonment with a fine of Rs.500/- with default clause respectively. DECISION HELD BY COURT: Whether in the facts and circumstances of this case, whether the courts below were right in invoking the “last seen theory.” RATIO OF THE COURT: The court after taking in consideration Sunil Clifford Daniel vs. State of Punjab, (2012) 11 SCC 205, Sampath Kumar vs. Inspector of Police, Krishnagiri (2012) 4 SCC 124, Bodhraj @ Bodha And Ors. vs. State of Jammu & Kashmir, (2002) 8 SCC 45 and Mohd. Arif @ Ashfaq vs. State (NCT of Delhi), (2011) 13 SCC 621 observed that case of the prosecution is entirely based on the circumstantial evidence. In a case based on circumstantial evidence, settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature.  Moreover, all the circumstances should be complete, forming a chain and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused totally inconsistent with his evidenceBased on the evidence of PWs 1 and 2, courts below expressed the view that motive for murder of Manoj was the lust for the money which Manoj was carrying. Courts below based the conviction of the appellants on the circumstances “last seen theory” as stated by PWs 1 and 2 along with recovery of bilty and receipt by PW-6 on which the name of the accused person (Nizam) was printed.The appellants are alleged to have committed murder of Manoj for the amount which Manoj was carrying.  But neither the amount of Rs.20,000/- nor any part of it was recovered from the appellants.  If the prosecution is able to prove its case on motive, it will be a corroborative piece of evidence lending assurance to the prosecution case. But even if the prosecution has not been able to prove the motive, that will not be a ground to throw away the prosecution case. Absence of proof of motive only demands careful scrutiny and deeper analysis of evidence adduced by the prosecution. Apart from non-recovery of the amount from the appellants, serious doubts arise as to the motive propounded by the prosecution.  By perusal of the evidence of Sudama Vithal Darekar (PW-17) it is clear that driver Raj Kumar came to the police station complaining that by five to seven people of other vehicle have robbed him and the money. However, after investigation it was discovered that Raj Kumar gave false information and a case under Section 182 IPC was registered against him. Raj Kumar was produced before the Court and court imposed fine of Rs.1,000/- on him.  This fact was also verified from PW-16-investigating officer during his cross-examination.The court held that In case of circumstantial evidence, court has to examine the entire evidence in its entirety and ensure that the only inference that can be drawn from the evidence is the guilt of the accused.  In the case at hand, neither the weapon of murder nor the money allegedly looted by the appellants or any other material was recovered from the possession of the appellants.  There are many apparent lapses in the investigation and missing links:–(i) Non-recovery of stolen money; (ii) The weapon from which abrasions were caused; (iii) False case lodged by PW-2 alleging that he was being robbed by some other miscreants;   (iv) Non-identification of the dead body and (v) Non-explanation as to how the deceased reached Maniya village and injuries on his internal organ (penis). Thus the court find many loopholes in the case of the prosecution.  For establishing the guilt on the basis of the circumstantial evidence, the circumstances must be firmly established and the chain of circumstances must be completed from the facts.  The chain of circumstantial evidence cannot be said to be concluded in any manner sought to be urged by the prosecution.Normally, this Court will not interfere in exercise of its powers under Article 136 of the Constitution of India with the concurrent findings recorded by the courts below. But where material aspects have not been taken into consideration and where the findings of the Court are unsupportable from the evidence on record resulting in miscarriage of justice, this Court will certainly interfere. The court observed that Where time gap is long it would be unsafe to base the conviction on the “last seen theory”; it is safer to look for corroboration from other circumstances and evidence adduced by the prosecution. From the facts and evidence, we find no other corroborative piece of evidence corroborating the last seen theory. Finally the court held that In view of the time gap between Manoj left in the truck and the recovery of the body and also the place and circumstances in which the body was recovered, possibility of others intervening cannot be ruled out. In the absence of definite evidence that appellants and deceased were last seen together and when the time gap is long, it would be dangerous to come to the conclusion that the appellants are responsible for the murder of Manoj and are guilty of committing murder of Manoj.The “last seen theory” seems to have substantially weighed with the courts below and the High Court brushed aside many loopholes in the prosecution case.  None of the circumstances relied upon by the prosecution and accepted by the courts below can be said to be pointing only to the guilt of the appellants and no other inference. If more than one inferences can be drawn, then the accused must have the benefit of doubt.  In the facts and circumstances of the case, we are satisfied the conviction of the appellants cannot be sustained and the appeal ought to be allowed.The court observed that There are many apparent lapses in the investigation and missing links:–(i) Non-recovery of stolen money; (ii) The weapon from which abrasions were caused; (iii) False case lodged by PW-2 alleging that he was being robbed by some other miscreants; (iv) Non-identification of the dead body and (v) Non-explanation as to how the deceased reached Maniya village and injuries on his internal organ (penis). Thus we find many loopholes in the case of the prosecution. DECISION HELD BY COURT: In this case the judgement was given by JUSTICE R.BANUMATHI that the conviction of the appellants under Sections 302 and 201 IPC is set aside and the appeal is allowed. The appellants are in jail and they are ordered to be set at liberty forthwith if not required in any other case.  

Appeal186 of 2001 Special Leave Petition2436 of 2000 DR.SURAJMANI STELLA KUJUR Vs DURGA CHARAN HANSDAH & ANR DATE OF JUDGMENT: 14 02 2001 K.T.Thomas R.P.Sethi SETHI J Leave granted. Who is a "Hindu" for the purposes of the applicability of the Hindu Marriage Act 1955 hereinafter referred to as "the Act") is a question of law to be determined in this appeal. Section 2 of the Act specifies the persons to whom the Act is applicable Clauses (b) andof Sub sectionof Section 2 make the Act applicable to a person who is a Hindu by religion in any of its forms or developments including a Virashaiva a Lingayat or a follower of the Brahmo Prarthana or Arya Samaj and to persons who is a Buddhist Jaina or Sikh by religion. It is also applicable to any other person domiciled in the territories of India who is not a Muslim Christian Parsi or Jew by religion. The applicability of the Act is therefore comprehensive and applicable to all persons domiciled in the territory of India who are not Muslims Christians Parsis or Jews by religion. The term "Hindu" has not been defined either under the Act or Indian Succession Act or any other enactment of the Legislature. As far back as in 1903 the Privy Council in Bhagwan Koer v. J.C. Bose & Ors. Calcutta Series 11] observed: "We shall not attempt here to lay down a general definition of what is meant by the term ’Hindu’. to make it accurate and at the same time sufficiently comprehensive as well as distinctive is extremely difficult. The Hindu religion is marvellously catholic and elastic. Its theology is marked by eclecticism and tolerance and almost unlimited freedom of private worship. Its social code is much more stringent but amongst its different castes and sections exhibits wide diversity of practice. No trait is more marked of Hindu society in general than its horror of using the meat of the cow. Yet the Chamaras who profess Hinduism but who eat beef and the flesh of dead animals are however low in the scale included within its pale. It is easier to say who are not Hindus not practically and separation of Hindus from non Hindus is not a matter of so much difficulty. The people know the differences well and can easily tell who are Hindus and who are not The Act is therefore applicable to: "(1) All Hindus including a Virashaiva a Lingayat a Brahmo Prarthana Samajist and an Arya Samajist Budhists Jains Sikhs In this appeal the parties are admittedly tribals the appellant being a Oraon and the respondent a Santhal. In the absence of a notification or order under Article 342 of the Constitution they are deemed to be Hindus. Even if a notification is issued under the Constitution the Act can be applied to Scheduled Tribes as well by a further notification in terms of Sub sectionof Section 2 of the Act. It is not disputed before us that in the Constitution Scheduled Tribes) Order 1950 as amended by Scheduled Castes and Scheduled Tribes OrderActs 63 of 1956 108 of 1976 187 and 15 of 1990 both the tribes to which the parties belong are specified in Part XII. It is conceded even by the appellant that "the parties to the petition are two Tribals who otherwise profess Hinduism but their marriage being out of the purview of Hindu Marriage Act 1955 in light of Section 2(2) of the Act are thus governed only by their Santal Customs and usage". The appellant has however relied upon an alleged custom in the Tribe which mandates monogamy as a rule. It is submitted that as the respondent has solemnised a second marriage during the subsistence of the first marriage with the appellant the second marriage being void the respondent is liable to be prosecuted for the offence punishable under Section 494 of the Indian Penal Code. No custom can create an offence as it essentially deals with the civil rights of the parties and no person can be convicted of any offence except for violation of law in force at the time of commission of the act charged. Custom may be proved for the determination of the civil rights of the parties including their status the establishment of which may be used for the purposes of proving the ingredients of an offence which under Section 3(37) of the General Clauses Act would mean an act or omission punishable by any law by way of fine or imprisonment Article 20 of the Constitution guaranteeing protection in respect of conviction of offence provides that no person shall be convicted of any offence except for violation of law in force at the time of commission of the act charged as an offence. Law under Article 13 clause of the Constitution means the law made by the Legislature including intravires statutory orders and orders made in exercise of powers conferred by the statutory rules. The expression custom and usage" has been defined under Section 3(a) of the Act as: "the expression ’custom’ and ’usage’ and rule which having been continuously and uniformly observed for a long time has obtained the force of law among Hindus in any local area tribe community group or family Provided that the rule is certain and not unreasonable or opposed to public policy and Provided further that in the case of a rule applicable only to a family it has not been discontinued by the For custom to have the colour of a rule or law it is necessary for the party claiming it to plead and thereafter prove that such custom is ancient certain and reasonable Custom being in derogation of the general rule is required to be construed strictly. The party relying upon a custom is obliged to establish it by clear and unambiguous evidence. In Ramalakshmi Ammal v. Sivanatha Perumal Sethuraya held: "It is of the essence of special usage modifying the ordinary law of succession that they should be ancient and invariable and it is further essential that they should be established to be so by clear and unambiguous evidence. It is only by means of such evidence that the courts can be assured of their existence and that they possess the conditions of antiquity and certainty on which alone their legal title to This Court in Mirza Raja Pushpavati Vijayaram Gajapathi Raj & ors. v. Sri Pushavathi Visweswar Gajapathiraj Rajkumar of Vizianagram & Ors. again reiterated the same position of law regarding the establishment of a custom upon which a party intends to rely. The importance of the custom in relation to the applicability of the Act has been acknowledged by the Legislature by incorporating Section 29 saving the validity of a marriage solemnised prior to the commencement of the Act which may otherwise be invalid after passing of the Act Nothing in the Act can affect any right recognised by custom or conferred by any said enactment to obtain the dissolution of a Hindu Marriage whether solemnised before or after the commencement of the Act even without the proof of the conditions precedent for declaring the marriage invalid as incorporated in Sections 10 to 13 of the Act. In this case the appellant filed a complaint in the Court of Chief Metropolitan Magistrate New Delhi stating therein that her marriage was solemnised with the respondent in Delhi according to Hindu rites and customs". Alleging that the respondent has solemnised another marriage with the Accused No.2 the complainant pleaded: "That the accused No.1 has not obtained any divorce thro’ the Court of Law upto this date and hence the action of the accused No.1 is illegal and contravene the provision of law as laid down under Section Nowhere in the complaint the appellant has referred to any alleged custom having the force of law which prohibits the solemnisation of second marriage by the respondent and the consequences thereof. It may be emphasised that mere pleading of a custom stressing for monogamy by itself was not sufficient unless it was further pleaded that second marriage was void by reason of its taking place during the life of such husband or wife. In order to prove the second marriage being void the appellant was under an obligation to show the existence of a custom which made such marriage null ineffectual having no force of law or binding effect incapable of being enforced in law or non est. The fact of second marriage being void is a sine qua non for the applicability of Section 494 IPC. It is settled position of law that for fastening the criminal liability the prosecution or the complainant is obliged to prove the existence of all the ingredients constituting the crime which is normally and usually defined by a statute. The appellant herself appears to be not clear in her stand inasmuch as in her statement in the court recorded on 24th October 1992 she has stated that "I am a Hindu by religion". The complaint was dismissed by the trial court holding "there is no mention of any such custom in the complaint nor there is evidence of such custom. In the absence of pleadings and evidence reference to Book alone is not sufficient". the High Court vide the judgment impugned in this appeal held that in the absence of notification in terms of sub sectionof Section 2 of the Act no case for prosecution for the offence of bigamy was made out against the respondent because the alleged second marriage cannot be termed to be void either under the Act or any alleged custom having the force of law. In view of the fact that parties admittedly belong to the Scheduled Tribes within the meaning of clause of Article 366 of the Constitution as notified by the ConstitutionOrder 1950 as amended by Scheduled Castes and Scheduled Tribes Order Amendment) Acts 656 1076 187 and 190 passed in terms of Article 342 and in the absence of specific pleadings evidence and proof of the alleged custom making the second marriage void no offence under Section 494 of the Indian Penal Code can possibly be made out against the respondent. The Trial Magistrate and the High Court have rightly dismissed the complaint of the appellant Learned Counsel appearing for the appellant however submitted that even if the second marriage was not void for the purposes of attracting the applicability of Section 494 and holding the respondent guilty of bigamy the appellant is entitled to maintenance succession and other benefits on account of her being the legally wedded wife of the respondent. We cannot adjudicate upon such a proclaimed right of the appellant. The appellant is at liberty to get her right established by way of civil proceedings in a competent court of jurisdiction. If any such proceedings are initiated the same would be decided on their merits in accordance with the principles of pleadings and proof not being influenced by any of the observations made by the trial magistrate or the High Court. There is no merit in this appeal which is accordingly dismissed

No government order, notification or circular can be a substitute of the statutory rules framed with the authority of law: Tripura High Court

The established legal position is that the existing laws framed by legal authorities cannot be replaced by public order, notice or a circular. It would be tragic to follow any other path, as the protection and equality of officers under the constitutional regime would be deprived. The previously acknowledged operation jurisprudence would be denied. The judgement was passed by the High Court of Tripura in the case of Tripura Gramin Bank v. Abhishek Majumder [WA No. 28 of 2021] by Division Bench consisting of Hon’ble Justice MR. S. Talapatra & Justice Mr S. G. Chattopadhyay. The facts of the case are that the petitioners were not considered, even though they had claimed to have fulfilled the eligibility for consideration for promotion to the post of Officer Middle Management. Further, the petitioner has appealed in this court for seeking common judgment of the clubbed petition. Learned counsel for the petitioner has submitted that the petitioners were eligible for promotion to the post of Officer Middle Management but the petitioners were not considered, even though they had claimed to have fulfilled the eligibility for consideration for promotion to the post of Officer Middle Management. While referring to the apex court in the case of Dr Rajinder Singh Vs. State of Punjab & Ors wherein it was noted that “no government order, notification or circular can be a substitute of the statutory rules framed with the authority of law. Following any other course would be disastrous since it would deprive the security of tenure and right of equality conferred upon the civil servants under the constitutional scheme. It would be negating the so far accepted service jurisprudence.” Learned counsel for respondents in the writ petitions by filing their reply have explained their position by stating that a specialized officer cannot be promoted in a general category vacancy. However, the Board of the Bank may decide on a merger of the specialized category cadre with the general category cadre at the appropriate scale and that may be part of manpower planning of RRB, to be prepared in consultation with the sponsor bank.

HIGH COURT OF TRIPURA WA No. 221 1. Tripura Gramin Bank A Government Undertaking) Abhoynagar P.O. Abhoynagar Sub Division Agartala Dist. West Tripura Pin 799005 represented by its Chairman having his office at Tripura Gramin Bank Head Office Abhoynagar P.O. Abhoynagar Sub Division Agartala Dist. West Tripura Pin 799005 2. The Chairman Tripura Gramin Bank A Government Undertaking) Head Office Abhoynagar P.O. Abhoynagar Sub Division Agartala Dist West Tripura Pin 799005 Sri Abhishek Majumder son of Sri Arun Majumder resident of Narayan Kutir Sukanta Palli Town Bardowali P.S. West Agartala P.O. & Sub Division Agartala Dist. West Agartala Pin 799001 WA No. 321 1. Tripura Gramin Bank A Government Undertaking) Abhoynagar P.O. Abhoynagar Sub Division Agartala Dist. West Tripura Pin 799005 represented by its Chairman having his office at Tripura Gramin Bank Appellant(s) Head Office Abhoynagar P.O. Abhoynagar Sub Division Agartala Dist. West Tripura Pin 799005 2. The Chairman Tripura Gramin Bank A Government Undertaking) Head Office Abhoynagar P.O. Abhoynagar Sub Division Agartala Dist West Tripura Pin 799005 Sri Pritam Saha son of Sri Narayan Chandra Saha resident of Geet Bharati Para P.O. & P.S. R.K. Pur Sub Division Udaipura Dist. West Tripura Pin 799120 For AppellantFor Respondent(s) Whether fit for reporting NO Mr. A Roy Barman Advocate. Mr. S Lodh Advocate. HON’BLE THE JUSTICE MR. S. TALAPATRA HON’BLE THE JUSTICE MR. S. G. CHATTOPADHYAY Judgment & OrderHeard Mr. A Roy Barman learned counsel appearing for the appellants Tripura Gramin Bank a Government Undertaking and its officer as well as Mr. S. Lodh learned counsel appearing for the respondents. 2. Both these appeals being WA 28 of 2021 and WA 30 of 2021 are combined for disposal by a common judgment inasmuch as in these appeals a common judgment dated 07.10.2020 delivered in WP(C)220and WP(C) 220is under challenge. The brief facts relevant for appreciating the challenge in these appeals may be introduced at the outset. 4. Both the respondents after their long service were appointed as the Officer Middle Management Group A. There is no dispute at the bar that the respondents were appointed in the specialized cadre when they were directly recruited. On perusal of Rule 4 of the Recruitment Rules in respect of the appointment to the post of Officer Middle Management it appears that 75% of the vacancy in the said cadre is to be filled by promotion and the remaining 25% is to be filled up by direction recruitment. The respondents were considered in the direct recruitment quota which is to the extent of 25%. From a reading of the recruitment rules it further appears that out of 25% vacancies 10% is earmarked for the specialist cadre namely the candidates from Information Technology Agriculture Treasury Law Marketing Chartered Accountant etc. 5. There is no dispute that the respondents were eligible to be considered for promotion to Officer Middle Management Group A as they had fulfilled the criteria provided by recruitment rule 13(3) which reads as “13(3). A one time relaxation of one year service during the entire service period will be given to such candidates who have passed Junior Associate of the Indian Institute of Bankers of Indian Institute of Banking and Finance for promotion both under the normal channel and fast track channel to the Group ‘A’ posts specified in columnagainst serial numbers 1 2 and 3 of the First Schedule and one more year in case of such candidates who have passed Certified Associate of the Indian Institute of Banking and Mr. Roy Barman learned counsel has submitted that 6. the petitioners were eligible for promotion to the post of Officer Middle Management but the petitioners were not considered even though they had claimed to have fulfilled the eligibility for consideration for promotion to the post of Officer Middle Managementin the writ petitions by filing their reply have explained their position by stating that a specialized officer cannot be promoted in a general category vacancy. However the Board of the Bank may take a decision of merger of the specialized category cadre with the general category cadre at appropriate scale and that may be part of manpower planning of RRBto be prepared in consultation with the sponsor bank. 9. The said position as taken by the bank respondents the appellants herein has been rejected by the learned Single Judge while passing the said common judgment dated 07.10.2020 by observing inter alia that the recruitment rules for promotion to the Officer Middle Managementdoes not make any distinction between an Officer Middle Management recruitment against general category or against specialized cadre. No such distinction can be introduced through the executive instruction. In other words when the rules prescribe eligibility for promotion no additional condition can be imposed by way of executive instructions. It is well settled that where the recruitment rules are silent on any aspect it is always open to the employer to fill the gap through the executive instructions. However it is equally well settled that an executive instruction cannot run counter to the statutory recruitment rules. In other words if the field is occupied by the statutory rules executive instructions cannot govern the field. 10. Learned Single Judge has referred to a decision of the Apex Court in Dr. Rajinder Singh Vs. State of Punjab & Ors. reported in5 SCC 482 where the apex court has unambiguously worded their enunciations as follows: “7. The settled position of law is that no government order notification or circular can be a substitute of the statutory rules framed with the authority of law. Following any other course would be disastrous inasmuch as it would deprive the security of tenure and right of equality conferred upon the civil servants under the constitutional scheme. It would be negating the so far accepted service jurisprudence. We are of the firm view that the High Court was not justified in observing that even without the amendment of the Rules Class II of the service can be treated as Class I only by way of notification. Following such a course in effect amounts to amending the rules by a government order and ignoring the mandate of Article 309 of the Constitution.” In the same line another judgment of the Apex 11. Court in K K Parmar and Ors. Vs. H. C of Gujarat thr. Registrar & Ors. reported in 2006 AIR SCW 2856 has been 12. Having observed thus denial of the promotion to the respondents has been interfered with and the communications dated 04.12.2019 and 30.12.2019 were set aside and it has been declared that the respondents herein were eligible for being considered for promotion in the fast track channel to the post of Officer Middle Managementfor which their tests were conducted. The respondents the appellants herein have been directed to proceed to declare the result of the examination and they will be at liberty to grant promotion to the selected candidates. 13. The said finding has fallen for our scrutiny. 14. Mr. A Roy Barman learned counsel has contended that even the writ petitions were bad for non joinder of parties inasmuch as the decision of the Board as communicated to the respondents by communication dated 04.12.2019 and 30.12.2019 were taken in consultation with the sponsor bank or NABARD. As these entities are not made party in the proceedings this court may not adjudicate the right of the respondents. 15. We are unable to accept the contention inasmuch as the recruitment rules are in place and the bank respondents are bound by these recruitment rules while filling up the post of Officer Middle Management (Scale III). When they have deviated from the course as prescribed by the recruitment rules as quoted above and when they have acted in contravention thereof the sponsor bank or NABARD are not necessary parties inasmuch as their role is only advisory in nature. 16. Having observed thus we do not find any merit in these appeals and accordingly the same stand dismissed. However there shall be no order as to costs. 17. The respondents shall carry out the order of the learned single judge in the manner as directed therein. They are directed to complete the exercise within a period of six weeks JUDGE JUDGE from this day.

Convicted person cannot seek writ of mandamus for consideration of his / her case for appointment: Chhattisgarh High Court

Once the petitioner has been convicted for criminal offences and he has been awarded jail sentence and fine sentence also, a writ of mandamus cannot be issued to the authorities to consider his case for appointment on the post of Constable (GD) has been upheld by the High Court of Chhattisgarh through a single bench led by HON’BLE SHRI JUSTICE SANJAY S. AGARWAL in the case of Subhash Chandra v. State of Chhattisgarh (Writ Petition No.616 of 2022). Brief facts of the case are that petitioner participated in recruitment process initiated for the post of Constable (GD & driver) and he has been selected after passing all tests including medical test, but respondent, Superintendent of Police, Rajnandgaon, has declined to issue order of appointment in favour of the petitioner on the ground that criminal case is pending against him. It is admitted position on record that the petitioner has been convicted for offences under Sections 279 & 304A of the Indian Panel Code and appeal against that order is pending consideration before the jurisdictional appellate Court. The petitioner stated that his substantive jail sentence has been suspended and therefore, he is entitled to be appointed on the post of Constable (GD). The respondents placed reliance on State of West Bengal and others v. SK. Nazrul Islam and Commissioner of Police, New Delhi and another v. Mehar Singh contended that since the petitioner has been convicted for offences and jail sentence has been imposed for one year for offence under Section 304A of the IPC and six months for offence under Section 279 of the IPC and fine has also been imposed and appeal is pending consideration before the appellate Court, therefore, no mandamus can be issued for issuance of appointment order. The Court decided in favour of respondents and dismissed the petition. Judgement reviewed by- Akshat Jaithlia

1AFRHIGH COURT OF CHHATTISGARH BILASPURWrit PetitionNo.6122Subhash Chandra S o Shri Dilbar Aged about 26 years R ovillage Bandha P.S. & Tehsil Takhatpur District Bilaspur(CG) ­­­­ Petitioner Versus 1.State of Chhattisgarh Through the Principal Secretary Home Department Mahanadi Bhawan Naya Raipur Tah. & Dist.Raipur2.Director General of Police Police Head Quarter Sector19 New Raipur Atal Nagar Dist­Raipur3.The Assistant Director General of Police Police HeadQuarter Sector 19 New Raipur Atal nagar DistrictRaipur4.The Superintendent of Police Rajnandgaon DistrictRajnandgaon­­­­ RespondentsFor Petitioner : Mr.Ravindra Sharma Advocate For Respondents: Mr.Amrito Das Addl.A.G.Hon ble Shri Justice Sanjay K. AgrawalOrder on Board(Through Video Conferencing)2 2 20221.Heard Mr.Ravindra Sharma learned counsel for thepetitioner and Mr.Amrito Das learned Additional AdvocateGeneral for the respondents State on the question ofadmission. 2.The petitioner participated in recruitment processinitiated for the post of Constableandaccording to him he has been selected after passing alltests including medical test but respondentNo.4 Superintendent of Police Rajnandgaon has declined toissue order of appointment in favour of the petitioner on 2the ground that criminal case is pending against him. 3.It is admitted position on record that the petitioner hasbeen convicted for offences under Sections 279 & 304A ofthe Indian Panel CodeandSection 3 181 of the Motor Vehicles Act 1988by the Judicial Magistrate FirstClass Takhatpur on 08.10.2021 and appeal against thatorder is pending consideration before the jurisdictionalappellate Court and he has made a representation forissuance of appointment order in his favour. 4.Mr.Ravindra Sharma learned counsel appearing for thepetitioner would submit that though the petitioner hasbeen convicted for the aforesaid offences yet hissubstantive jail sentence has been suspended andtherefore he is entitled to be appointed on the post ofConstable8 SCC 471 3offence under Section 279 of the IPC and fine of ₹ 500 ­has also been imposed under Section 3 181 of the Act of1988 and appeal is pending consideration before theappellate Court. Therefore no mandamus can be issued forissuance of appointment order for consideration of thepetitioner s case for appointment on the post of Constable(GD) and as such the writ petition deserves to bedismissed. 6.Admittedly and undisputedly the petitioner has beenselected on the post of Constablebut he has beenconvicted for the aforesaid offences and jail sentence aswell as fine sentence has been imposed upon him and hisappeal is pending consideration before the appellate Courtagainst the order of conviction and against jail sentenceawarded to him in the meanwhile he has filed this writpetition seeking direction to respondent No.4 to considerhis case for appointment on the post of Constableashe has already been selected for the said post.7.The question that once the petitioner has been convictedfor criminal offences and he has been awarded jailsentence and fine sentence also whether a writ ofmandamus can be issued to the authorities to consider hiscase for appointment on the post of Constable10 SCC 184 4acquitted in the criminal case of the charges. It wasobserved as under:­“5. We have heard learned counsel for the partiesand we fail to appreciate how when a criminal caseunder Sections 148 323 380 448 427 506 IPC against the respondent was pending in the Court ofthe Additional Chief Judicial Magistrate Uluberia Howrah any mandamus could have beenissued by the High Court to the authorities toappoint the respondent as a Constable. Surely theauthorities entrusted with the responsibility ofappointing constables were under duty to verifythe antecedents of a candidate to find out whetherhe is suitable for the post of constable and solong as the candidate has not been acquitted inthe criminal case of the charges under Sections148 323 380 448 427 506 IPC he cannot possibly beheld to be suitable for appointment to the post ofConstable.”9.Similarly the Supreme Court in the matter of Commissionerof Police New Delhi and another v. Mehar Singh3 hasobserved as under:­“35. The police force is a disciplined force. Itshoulders the great responsibility of maintaininglaw and order and public order in the society.People repose great faith and confidence in it. Itmust be worthy of that confidence. A candidatewishing to join the police force must be a personof utmost rectitude. He must have impeccablecharacter and integrity. A person having criminalantecedents will not fit in this category. Even ifhe is acquitted or discharged in the criminalcase that acquittal or discharge order will haveto be examined to see whether he has beencompletely exonerated in the case because even apossibility of his taking to the life of crimesposes a threat to the discipline of the policeforce. The Standing Order therefore hasentrusted the task of taking decisions in thesematters to the Screening Committee. The decisionof the Screening Committee must be taken as finalunless it is mala fide. In recent times the imageof the police force is tarnished. Instances ofpolice personnel behaving in a wayward manner bymisusing power are in public domain and are amatter of concern. The reputation of the policeforce has taken a beating. In such a situation we37 SCC 685 5would not like to dilute the importance andefficacy of a mechanism like the ScreeningCommittee created by the Delhi Police to ensurethat persons who are likely to erode itscredibility do not enter the police force. At thesame time the Screening Committee must be aliveto the importance of trust reposed in it and musttreat all candidates with even hand.”10.Recently the Supreme Court in the matter ofRajasthan Rajya Vidyut Prasaran Nigam Limited and anotherv. Anil Kanwariya4 has held that an employee cannot claimthe appointment and or continue to be in service as amatter of right. It was observed as under:­“14. The issue question may be considered fromanother angle from the employer’s point of view.The question is not about whether an employee wasinvolved in a dispute of trivial nature andwhether he has been subsequently acquitted or not.The question is about the credibility and ortrustworthiness of such an employee who at theinitial stage of the employment i.e. whilesubmitting the declaration verification and orapplying for a post made false declaration and ornot disclosing and or suppressing material fact ofhaving involved in a criminal case. If the correctfacts would have been disclosed the employermight not have appointed him. Then the question isof TRUST. Therefore in such a situation wherethe employer feels that an employee who at theinitial stage itself has made a false statementand or not disclosed the material facts and orsuppressed the material facts and therefore hecannot be continued in service because such anemployee cannot be relied upon even in future theemployer cannot be forced to continue such anemployee. The choice option whether to continue ornot to continue such an employee always must begiven to the employer. At the cost of repetition it is observed and as observed hereinabove incatena of decision such an employee cannot claimthe appointment and or continue to be in serviceas a matter of right.”11.Reverting to the facts of the present case in lightof principle of law laid down by the Supreme Court in the410 SCC 136 6above­stated judgments it is quite vivid that since thepetitioner stands convicted as on date for offencesincluding the offence under Section 304A of the IPC andjail sentence has been awarded to him and that jailsentence has been suspended by the criminal Court in thatcircumstance as held by the Supreme Court in SK. NazrulIslamno mandamus can be issued to consider thepetitioner s case as Constableincluding theconsideration of the petitioner s representation. However reliance placed by the learned counsel for the petitioneron the decision of Avtar Singhwould not apply inthe instant case as the petitioner is seeking mandamus todirect respondent No.4 to consider his case forappointment on the post of Constableeven after hisconviction is subsisting. 12.Accordingly the writ petition deserves to be and ishereby dismissed in limine leaving the parties to beartheir own cost(s). Sd Judge B 7HIGH COURT OF CHHATTISGARH AT BILASPURWrit PetitionNo.6122 PetitionerSubhash Chandra Versus RespondentsState of Chhattisgarh andothersO fDr ijekns k dh fjV dhekax ugh dj ldrkA

Damages are entirely insufficient as panacea for the holder of a valid patent: High Court of Delhi

It is also a well-settled position in law that damages are entirely insufficient as a panacea for the holder of a valid patent, which is infringed by another. Intellectual property has its own sanctity. The prejudice caused even by a single day’s infringement of intellectual property is, in principle, incalculable. It is fundamentally incongruous, therefore, to suggest that, even while the applications for injunction, preferred by the plaintiff in the suits under Order XXXIX of the CPC, are being heard by this Court and are, in fact, at the stage of rejoinder, the defendants should be allowed to launch the allegedly infringing CTPR products.’. This was held in FMC CORPORATION V. BEST CROP SCIENCE LLP & ANR.[I.A.5801/2021 in CS(COMM) 69/2021] in the High Court of Delhi by a single bench consisting of JUSTICE C. HARI SHANKAR. Facts are the plaintiff alleges infringement by the defendants of Indian patents held by the plaintiff. Of these one is a product patent and one is a process patent. The plaints allege that the defendants are intending to launch CTPR, which is specifically covered and disclosed, and held by the plaintiff. The action of the defendant will infringe the plaintiff’s rights and they thus have prayed for a permanent injunction against the defendants. The counsel for the defendants contended plaintiffs patents IN 307 and IN 332 are ab initio invalid patents and as IN 978 has expired, thus the defendants are now entitled to launch their CTPR product in the market. The court made reference to the judgment of the court in the case of Astra Zeneca AB v. Intas Pharmaceuticals Ltd., wherein it was held that “What persuades me to decline injunction, in addition to what I have stated above, is also the fact that in this case damages if proved at trial, appear to be compensable. The defendants have averred that the plaintiffs have, possibly, licensed their rights under the suit patents to two entities i.e. Sun and Abbott. The packaging of the products of the drug sold through these entities is indicative of this aspect. The plaintiffs, however, for reasons best known to them have not placed on record the agreements arrived at with these entities in support of their plea. Therefore, it has to be inferred that the said entities are licensees.”. The court also made reference to the judgment of Delhi high court in  Merck Sharp and Dohme Corpn. v. Glenmark Pharmaceuticals, wherein it was observed that “The Court must be mindful – especially in a case where a strong case of infringement is established, as here – there is an interest in enforcing the Act. It may be argued that despite this no injunction should be granted since all damages from loss of sales can be compensated monetarily ultimately if the patentee prevails. This argument though appealing is to be rejected because a closer look at the market forces reveal that the damage can in some cases be irreparable. This in turn leads to the third principle, which is where an infringer is allowed to operate in the interim during the trial, it may result in a reduction in price by that infringer since it has no research and development expenses to recoup – most revenue becomes profit.”

6 & 7IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 17th May 2021 Decided on: 19th May 2021 I.A. 5801 2021 in CS(COMM) 69 2021 FMC CORPORATION BEST CROP SCIENCE LLP & ANR. Plaintiff Through: Mr. Sethi Advocate with Mr. Sanjay Kumar Ms.Arpita Sawhney Mr. Arun Kumar Jana Mr. Harshit Dixit and Ms. Priyansh Sharma Advs. ..... Defendants Through: Mr. Gopal Subramanium Senior Advocate with Dr. Shilpa Arora Mr.Sidharth Chopra Ms. Sneha Jain Dr.Amitavo Mitra Dr. Victor Vaibhav Tadon Ms. Shruti Jain Ms. Hima Lawrence and Mr. Jayavardhan Singh Advs. I.A.5816 2021 in CS(COMM) 611 2019 FMC CORPORATION & ANR. Plaintiffs Through: Mr. Sandeep Sethi Sr.Adv. with Mr. Sanjay Kumar Ms. Arpita Sawhney Mr. Arun Kumar Jana Mr.Harshit Dixit and Mr. Priyansh Sharma Advs. I.A.5801 2021 in CS(COMM) 69 2021 I.A.5816 2021 in CS(COMM) 611 2019 NATCO PHARMA LIMITED ..... Defendant Through: Mr. J. Sai Deepak with Mr.G Nataraj Mr.Avinash K Sharma and Mr.R. Abhishek Advs. HON BLE MR. JUSTICE C. HARI SHANKAR JUDGMENT This order disposes of IA 5801 2021 in CS 69 2021 and IA 5816 2021 in CS611 2019. Both these suits instituted by M s FMC Corporation allege infringement by the defendants of Indian patents IN 201307 and IN 213332held by the plaintiff. Of these IN 307 is a product patent and IN 332 is a process patent. The plaints allege that the defendants are intending to launch Chlorantraniliprole “CTPR”) which is specifically covered and disclosed in IN 307 and IN 332 held by the plaintiff. The proposed action of commercially manufacturing and launching CTPR would therefore according to the plaint infringe IN 307 and IN 332. The plaint therefore prays for a permanent injunction against the defendants from dealing in any product which could infringe IN 307 or using any of the processes claimed under IN 332. The defendants’ case in opposition to the case set up by the plaintiff is that CTPR stands covered by IN 204978 which is a genus Markush patent held by the plaintiff. The plaintiff I.A.5801 2021 in CS(COMM) 69 2021 I.A.5816 2021 in CS(COMM) 611 2019 has in response contended that even if CTPR is covered by IN 978 it is not disclosed therein. As against this the defendants contend relying on the judgment of the Supreme Court in Novartis AG v. that coverage in the genus patent is sufficient and that the Supreme Court has specifically disapproved dichotomizing coverage and disclosure. Detailed arguments have already been advanced before me over the course of several hearings by both parties on this nuanced issue regarding the distinction between coverage and disclosure in the genus Markush patent and whether coverage sans disclosure would be sufficient to invalidate the subsequent specie patent(s) i.e. in the present case the suit patents IN 307 and IN 332. The defendants question the very validity of the suit patents IN 307 and IN 332 contending that once CTPR stood covered by IN 978 no separate patents could be issued specifically claiming CTPR. They contend that a person ordinarily skilled in the art could easily derive CTPR from the moeities disclosed in IN 978 without having to resort to any inventive step in that regard. In view thereof the very validity of IN 307 and IN 332 according to the defendants is highly questionable and by seeking to base their claim on the said patents the plaintiff is attempting to “evergreen” the Markush patent IN 978 even beyond its IN 978 expired on 20th March 2021 and the suit patents IN 307 and IN 332 are due to expire in August 2022. 16 SCC 1 I.A.5801 2021 in CS(COMM) 69 2021 I.A.5816 2021 in CS(COMM) 611 2019 The basic premise on which these applications are based is that as IN 307 and IN 332 are ab initio invalid patents and as IN 978 has expired the defendants are now entitled to launch their CTPR product in the market. At the time of issuance of notice in CS(Comm) 611 2019 on November 2019 the statement of Mr. Sai Deepak learned counsel for the defendant was thus recorded: “2. Mr. J. Sai. Deepak learned counsel for the defendant states upon instructions that the defendant has applied for regulatory approval for manufacturing and marketing the product which the plaintiff alleges infringes the suit patent in September 2019. He states that approval usually takes 6 to 18 months to be processed. Consequently it is further stated that there is no likelihood of commercial launch of the product prior to March 2020. Recording the aforesaid statement it is unnecessary to pass an ad interim order at this stage. Mr. J. Sai Deepak also states for the record that the defendant has applied to the Intellectual Property Board for revocation of the suit patent IN 201307.” Effectively therefore the defendant seeks to resile from its statement as recorded on 14th November 2019 citing changed circumstances as the justification thereof. Similar relief is sought in IA 5816 2021 in CS611 2019. I have heard at length learned senior counsel Mr. Gopal Subramanium for the applicant in I.A. 5801 2021 and Mr. J. Sai Deepak learned counsel for the applicant in I.A.5816 2021. I.A.5801 2021 in CS(COMM) 69 2021 I.A.5816 2021 in CS(COMM) 611 2019 10. Mr. Subramanium initially invited my attention to paras 25 and 26 of CS69 2021 which read thus: “25. In fact during the prosecution of the application corresponding to the suit patent IN 201307 in the US a Declaration was filed at the United States Patent and Trademarks Office disclosed in the suit patent with the closest specifically disclosed compounds in IN’978. A copy of the said declaration is annexed with the list of documents filed with the present plaint. 26. The said Declaration mentions tests conducted with the compounds of the selection inventionand a comparison with the closest compounds disclosed in IN’978. In the tests all the new compounds of the suit patent IN’307) showed unexpected and unpredictable superior insecticidal activity compared with the closest compounds disclosed in IN 978. CTPR is not specifically disclosed in IN’978. A person skilled in the art would not arrive at CTPR from Formula 1 of IN’978 without human intervention and ingenuity on account of extensive thorough and undue experimentation or hindsight knowledge. Nonetheless CTPR is in the class of anthranilamides within the scope of the numerous compounds included in the Markush Formula disclosed and claimed in the IN’978 patent.” 11. Mr. Subramanium emphasises the concluding sentence in para 26 of the plaint in CS69 2021 which admits that CTPR “is in the class of anthranilamides within the scope of the numerous compounds included in the Markush formula disclosed and claimed in the IN’978 patent”. Once this has been admitted by the plaintiff and IN 978 has expired Mr. Subramanium would seek to contend that there can be no justification to further restrain his client from manufacturing and selling its CTPR product. Over the course of past year and a half Mr. Subramanium submits that his client has acquired I.A.5801 2021 in CS(COMM) 69 2021 I.A.5816 2021 in CS(COMM) 611 2019 all statutory clearances for the manufacture and launch of its CTPR product. 12. CTPR points out Mr. Subramanium is an agricultural insecticide which is specifically used during the kharif season which is due to come to an end in July 2021. If therefore the defendant is not permitted to manufacture or sell its CTPR product it would lose its entire business for this year and would be denied the right to exploit the IN 978 patent even after it has expired. 13. Mr. Subramanium also emphasises the aspect of public interest by stating that the product of his client is priced 25% lower than the product of the plaintiff. In these circumstances submits Mr. Subramanium the interests of justice would justify permitting the defendant to manufacture and sell its CTPR product against which the defendant is prepared to maintain the accounts and is also willing to secure the damages of ₹ 2 crores mentioned in the plaint by way of an adequate security such as a bank guarantee. He submits that the principles of balance of convenience and irreparable loss viewed in the backdrop of the fact that farmers would have access to the CTPR product at much lower rates would in Mr. Subramanium’s submission additionally justify the prayers in this application. 15. Appearing on behalf of the applicant in I.A.5816 2021 in CS Comm) 611 2019 Mr. J. Sai Deepak initially drew attention to para 6 of the plaint in CS 611 2019 in which the plaintiff has I.A.5801 2021 in CS(COMM) 69 2021 I.A.5816 2021 in CS(COMM) 611 2019 admitted that “the suit patents have been licensed and or sub licensed by the Plaintiffs to Syngenta Ltd. Syngenta Crop Protection AG E.I. Du Pont de Nemours and Company and the Scotts Company LLC”. As such submits Mr. Sai Deepak the plaintiff has already licensed the suit patents for exploitation by others. What essentially the plaintiff is interested in therefore according to Mr. Sai Deepak is money in the form of the license fee which the plaintiff would earn. In such circumstances submits Mr. Sai Deepak the considerations of public interest and balance of convenience would justify allowing the defendants to release their product in the market for which purpose Mr. Sai Deepak places reliance on paras 35.5 35.6 36 and 36.2 of a recent judgment dated 2nd November 2020 of this Court in Astra Zeneca AB v. Intas Pharmaceuticals Ltd.2 which are reproduced “35.5 What persuades me to decline injunction in addition to what I have stated above is also the fact that in this case damages if proved at trial appear to be compensable. The defendants have averred that the plaintiffs have possibly licensed their rights under the suit patents to two entities i.e. Sun and Abbott. The packaging of the products of the drug sold through these entities is indicative of this aspect. The plaintiffs however for reasons best known to them have not placed on record the agreements arrived at with these entities in support of their plea. Therefore it has to be inferred that the said entities are licensees. 35.6 Besides this the plaintiffs also aver that they are importing their drug into the country. Therefore the plaintiffs seek to monetize their invention. Thus at the end of the trial if they were to succeed they could be granted damages if proved under the law. Thus as long as a mechanism can be 2 2020PTC 326 I.A.5801 2021 in CS(COMM) 69 2021 I.A.5816 2021 in CS(COMM) 611 2019 put in place for securing the recovery of damages by the plaintiffs it would at this stage balance the interest of the parties. 69 2021 I.A.5816 2021 in CS(COMM) 611 2019 genus patent IN 978 and releasing their CTPR products in the market. 17. Arguing for the plaintiff non applicant Mr. Sandeep Sethi learned Senior Counsel submits that were the present applications to be allowed IA 2084 2021 in CS69 2021 and IA 15352 2019 in CS 611 2019 preferred by the plaintiff under Order XXXIX Rules 1 and 2 of the CPC would be rendered infructuous. Apropos the equities of the case Mr. Sethi submits that the defendants never filed any pre or post grant opposition to the suit patents or sought to challenge the suit patents by any other means known to law except a belated revocation petition before the IPAB. He submits that damages can never constitute adequate recompense for infringement or violation of validly held patents especially pharmaceutical patents and relies for this purpose on the following passages from Merck Sharp and Dohme Corpn. v. Glenmark Pharmaceuticals3 “82. Addressing these principles in the circumstances of the present case the Court notes six equitable principles that come into play in this case and must be considered. First and this principle is now well established in Indian jurisprudence the Court must look at the public interest in granting an injunction as access to drugs especially one for a condition as prevalent as diabetes is an important facet of the patent regime. Here the price difference between the commercial products sold by Glenmark and MSD is not so startling as to compel the court to infer that allowing Glenmark to sell the drug at depressed prices would result in increased access. Permitting Glenmark to operate would not necessarily result in lowering of market prices. Importantly whilst lower prices may result from competition amongst two competitors no allegation has been made that MSD today sells its drugs at a relatively high price that hinders access to the drug. MSD has reduced its price by 1 5 from the United States which shows 3 63 PTC 257 I.A.5801 2021 in CS(COMM) 69 2021 I.A.5816 2021 in CS(COMM) 611 2019 some receptivity to the Indian market Glenmark has not disputed this submission. 85. This leads us to the second principle which is whether the Court can overlook the public interest in maintaining the integrity of the patent system itself so that a legitimate monopoly is not distorted. As this Court noted in Bayer Corporation v. Cipla Union of India 162 DLT 371 “[i]f after a patentee rewarded for his toil in the form of protection against infringement were to be informed that someone not holding a patent would be reaping the fruits of his efforts and investment such a result would be destructive of the objectives underlying the Patents Act.”. The Court must be mindful especially in a case where a strong case of infringement is established as here there is an interest in enforcing the Act. It may be argued that despite this no injunction should be granted since all damages from loss of sales can be compensated monetarily ultimately if the patentee prevails. This argument though appealing is to be rejected because a closer look at the market forces reveal that the damage can in some cases be irreparable. This in turn leads to the third principle which is where an infringer is allowed to operate in the interim during the trial it may result in a reduction in price by that infringer since it has no research and development expenses to recoup most revenue becomes profit. The patentee however can only do so at its peril. Importantly prices may not recover after the patentee ultimately prevails even if it is able to survive the financial setback during the interim which may take some time. The victory for the patentee therefore should not be pyrrhic but real. This irreparable market effect in cases of a sole supplier of a product has also triggered the decisions in Smith Kline Beecham v. Generics 25(1) IPD 25005 and Smithkline Beecham PlcGlaxosmithkline UK Ltd. v. Apotex EWCA Civ L37 where in granting an interim injunction it was held that damages would not be an adequate remedy for the plaintiff since it was the sole supplier of the product. New entrants to the market would be likely to cause its prices to go into a downward spiral and Smith Kline s I.A.5801 2021 in CS(COMM) 69 2021 I.A.5816 2021 in CS(COMM) 611 2019 prices may not recover even if it wins eventually. Equally granting the injunction would not prejudice Glenmark to an equal extent since if the suit is dismissed it may return to a market that is largely variable.” As such submits Mr. Sethi these applications merit outright In a short rejoinder Mr. Sai Deepak points out that Merck Sharp & Dohme Corpn.3 was noticed by the Coordinate Bench of this Court in AstraZeneca2. He further draws my attention to paras 35.1 and 35.3 of the decision in AstraZeneca2 19. Having heard learned Senior Counsel Mr. Subramanium and learned Counsel Mr. Sai Deepak at length I am unable to convince myself that any case for grant of the prayers in these applications 20. To my mind the entire issue is something of a no brainer. The extensive reliance by learned Counsel on the fact that IN 978 has expired on 20th March 2021 is neither here nor there. The plaintiff does not allege infringement by the defendants of IN 978. The plaintiff alleges infringement of IN 307 and IN 332. It is not in dispute that IN 307 and IN 332 are still alive and would expire only in August 2022. 21. Equally reliance by Mr. Subramanium on acknowledgement in para 26 of the plaint in CS(COMM) 69 2021 that CTPR is in the class of anthranilamides within the scope of the I.A.5801 2021 in CS(COMM) 69 2021 I.A.5816 2021 in CS(COMM) 611 2019 numerous compounds included in the Markush Formula disclosed and claimed in IN 978 cannot advance the case of the defendants in these applications. This acknowledgement does not in any manner discountenance the case of the plaintiff. Even as per Mr. Sai Deepak the plaintiff has specifically pleaded that CTPR is not disclosed in IN 978. According to the plaintiff even if CTPR were to be regarded as covered by IN 978 in the absence of disclosure mere coverage would not invalidate the specific suit patents issued for CTPR i.e. IN 307 and IN 332. Whether mere coverage of CTPR in IN 978 assuming such coverage exists would in the absence of disclosure of CTPR in IN 978 be sufficient to invalidate the suit patents IN 307 and IN 332 is a matter for consideration and decision in the applications filed by the plaintiff under Order XXXIX of the CPC which are presently at the stage of rejoinder. This Court cannot obviously in these applications prejudge that issue and indeed Mr. Subramanium very fairly stated that the defendants were not requiring the Court to do so. It is not and indeed it cannot be disputed that were these applications to be allowed nothing substantial would survive for consideration in IA 2084 2021 and IA 15352 2019 filed in these suits under Order XXXIX of the CPC. Once allegedly infringing products are in the market there can obviously be no stay against the infringement and even if any stay were to be granted the exercise would be fundamentally chimerical in nature. It is also a well settled position in law that damages are entirely insufficient as panacea for the holder of a valid patent which is infringed by another. Intellectual property has its own sanctity. The prejudice caused even by a single I.A.5801 2021 in CS(COMM) 69 2021 I.A.5816 2021 in CS(COMM) 611 2019 day’s infringement of intellectual property is in principle incalculable. It is fundamentally incongruous therefore to suggest that even while the applications for injunction preferred by the plaintiff in the suits under Order XXXIX of the CPC are being heard by this Court and are in fact at the stage of rejoinder the defendants should be allowed to launch the allegedly infringing CTPR products. 23. The decision in AstraZeneca2 can hardly help the defendants. Paras 35.5 35.6 36 and 36.2 of the said decision are only in the nature of residual findings after a detailed examination of the merits of the case in the preceding paragraphs. This Court has not in the said decision permitted release of allegedly infringing pharmaceutical products in the market even while the prima facie merits of the application under Order XXXIX of the CPC was under consideration before it as is the prayer in the present case. I also find substance in the reliance by Mr. Sethi on paras 82 and 85 of the judgment of the Division Bench of Corporation3 this Court in Merck Sharp & Dohme which emphasized the fact that in cases of alleged infringement of pharmaceutical patents damages are poor solace. I posed a specific query to Mr. Sai Deepak as to how if this Court were to find that there was prima facie infringement of the plaintiff’s suit patent by the defendants and that therefore a prima facie case for grant of the relief in IA 2084 2021 and IA 15352 2019 filed by the plaintiff under Order XXXIX of the CPC existed any meaningful order could be passed if the defendants were to be allowed to release the allegedly infringing CTPR products in the I.A.5801 2021 in CS(COMM) 69 2021 I.A.5816 2021 in CS(COMM) 611 2019 market in the interregnum. Despite attempting to answer the query with the considerable legal acumen at his command I am constrained to observe that no satisfactory response was forthcoming. Rather Mr. Sai Deepak with characteristic candour acknowledged that it was not his case that damages were adequate recompense for a plaintiff who had suffered infringement of its intellectual property. Once this position is admitted there can be no reasonable justification for permitting the defendants even while the arguments in the plaintiff’s applications under Order XXXIX of the CPC are at the stage of rejoinder to allow the defendants to release the allegedly infringing CTPR products in the market thereby effectively rendering the applications under Order XXXIX of the CPC infructuous. In view thereof I am of the opinion that no case for grant of the prayer for permitting the defendants to release their allegedly infringing CTPR products in the market can be said to exist at this 26. Learned Senior Counsel Mr. Subramanium and learned counsel Mr. Sai Deepak pray towards the conclusion of the proceedings that even if this Court were not inclined to allow the prayers in these applications the IA 2084 2021 and IA 15352 2019 be set down for conclusion of arguments in rejoinder on a date convenient to the Court and as expeditiously as possible. The record reveals that arguments in rejoinder have been advanced by the plaintiff in these applications on 21st January 2021 3rd February 2021 15th February 2021 and 22nd February 2021. The issue involved in the case is serious far reaching I.A.5801 2021 in CS(COMM) 69 2021 I.A.5816 2021 in CS(COMM) 611 2019 and justifies an expeditious disposal especially as it involves pharmaceutical patents. Accordingly list on 25th May 2021 from 2:15 to 4:30 pm and on 28th May 2021 from 2:15 to 3:15 pm for conclusion of the rejoinder submissions of the plaintiff. Submissions in surrejoinder if any and subject to the discretion of the Court would be entertained from 3:15 pm to 4:30 pm on 28th May 2021. It is made clear that these times would be adhered to by the clock with no further time to either side whatsoever. Once submissions are concluded both parties would be at liberty to file their respective written submissions after exchanging copies with each other within the time that would at that stage be stipulated in that regard. 27. With the aforesaid observations these applications stand disposed of. C. HARI SHANKAR J MAY 19 2021 I.A.5801 2021 in CS(COMM) 69 2021 I.A.5816 2021 in CS(COMM) 611 2019

In the case of workmen who are governed by the Central Civil Services (Pension) Rules, the applicability of the Gratuity Act has to be considered: High Court of Delhi

The Hon’ble High Court of Delhi, while referring to the judgments in the case of Union of India v. Ramesh Chand [W.P.(C.) 6115/2021 and Union of India v. Manik Lal Banerjee, (2006) 9 SCC 643, through a learned bench of Justice Prathiba M. Singh, upheld that in the case of workmen who are governed by the CCS Rules, the applicability of the Gratuity Act would have to be considered by the Authorities concerned, in the case of Management Of CPWD Vs Sh Bhori Lal & Ors. [W.P.(C) 13330/2021 & Cm Appl. 41999/2021]. The writ challenged the impugned order passed by the Appellate Authority under the Payment of Gratuity Act, 1972 (hereinafter “Gratuity Act”) dated 23rd February, 2021 in Gratuity Appeal No. 36(08)/2021 P.A.DYV. The said appeal was dismissed on the ground of delay as being beyond limitation in terms of Section 7(7) of the Gratuity Act. The original impugned order by the Controlling Authority, bearing No. ALC II 36(25)/2016 dated 25th August, 2020, awarded a sum of Rs.2,38,430/- along with simple interest at 10% to the Workman, from the exact date of retirement of the Workman till the date the amount of gratuity actually paid. The submissions of Ms. Sarika Singh, learned Counsel appearing for the Petitioner were three-fold: (i) that the delay ought to have been condoned and the matter ought to be heard on merits; (ii) that the Gratuity Act would not apply and the Central Civil Services (Pension) Rules, 1972 (hereinafter “CCS Rules”), would be applicable to the Workman; and (iii) that there is no evidence of the Workman having worked with the Petitioner for a period of eight years and eight months. Thus, she submitted that the award of the said amount by the Controlling Authority was untenable. The Hon’ble Court, after hearing the parties and a perusal of the record, stated that “This Court has in Union of India v. Ramesh Chand [W.P.(C.) 6115/2021, decided on 6 th July, 2021], taking into consideration the decision in Union of India v. Manik Lal Banerjee, (2006) 9 SCC 643, held that in the case of workmen who are governed by the CCS Rules, the applicability of the Gratuity Act would have to be considered by the Authorities concerned. These are legal issues which go to the root of the matter. The legal issues raised by the Petitioners deserve to be adjudicated upon by the Appellate Authority. The delay of approximately four months in filing the appeal before the Appellate Authority is accordingly condoned. Notice is not being issued to the Workman in this matter as that would lead to further costs to the Workman. Accordingly, the delay is condoned with payment of Rs.10,000/- as costs to the Workman by the Petitioner, on the first date of hearing before the Appellate Authority. Subject to such payment being made to the Workman in time, the appeal shall be adjudicated upon by the Appellate Authority on merits keeping in mind the grounds raised by the Petitioner and the facts discussed herein above, as also the judgment cited above. The Appellate Authority to dispose of the matter within a period of three months from the first date of hearing, after dealing by the all ground raised by the Petitioner. Let the Petitioner and Workman appear before the Appellate Authority on 6th January, 2022.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 25th November 2021 W.P.(C) 13330 2021 & CM APPL. 41999 2021 MANAGEMENT OF CPWD Through: Ms. Sarika Singh Advocate. ..... Petitioner Through: None. SH BHORI LAL & ORS. JUSTICE PRATHIBA M. SINGH Prathiba M. Singh J.1. This hearing has been done in physical Court. Hybrid mode is Respondents permitted in cases where permission is being sought from the Court. The present writ challenges the impugned order passed by the Appellate Authority under the Payment of Gratuity Act 1972 dated 23rd February 2021 in Gratuity Appeal No. 36(08) 2021 P.A.DYV. The said appeal was dismissed on the ground of delay as being beyond limitation in terms of Section 7(7) of the Gratuity Act. The original impugned order by the Controlling Authority bearing No. ALC II 36(25) 2016 dated 25th August 2020 awarded a sum of Rs.2 38 430 along with simple interest at 10% to the Workman from the exact date of retirement of the Workman till the date the amount of gratuity The submissions of Ms. Sarika Singh ld. Counsel appearing for the actually paid. Petitioner are three fold: i) that the delay ought to have been condoned and the matter ought to be heard on merits ii) that the Gratuity Act would not apply and the Central Civil W.P.(C) 13330 2021 Digitally Signed By:DEVANSHUJOSHISigning Date:26.11.2021 15:47:19 ServicesRules 1972would be applicable to the Workman and that there is no evidence of the Workman having worked with the Petitioner for a period of eight years and eight months. Thus she submits the award of the said amount by the Controlling Authority is untenable. This Court has in Union of India v. Ramesh Chand 6115 2021 decided on 6th July 2021] taking into consideration the decision in Union of India v. Manik Lal Banerjee 9 SCC 643 held that in the case of workmen who are governed by the CCS Rules the applicability of the Gratuity Act would have to be considered by the Authorities concerned. The observations in the said judgment are set out below: The issue relating to non applicability of the provisions of the Payment of Gratuity Act 1972 and the applicability of CCS Rules to the Respondents has not been considered either by the Controlling Authority or the Appellate Authority. The Appellate Authority has simply rejected the appeal as being barred by limitation. A perusal of the Appeal filed shows that there is a specific ground that the Respondent is governed by the CCS Rules. The relevant provision of the Payment of Gratuity Act 1972 is extracted below: “Section 2. Definitions. In this Act unless the context otherwise requires e) "employee" means any person employed on wages in any establishment factory mine oilfield plantation port railway company or shop to do any skilled semi skilled or unskilled manual supervisory technical or clerical work whether the terms of such employment are W.P.(C) 13330 2021 Digitally Signed By:DEVANSHUJOSHISigning Date:26.11.2021 15:47:19 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.” The Supreme Court in Union of India v. Manik Lal Banerjee 9 SCC 643 in a case concerning an employee of applicability of Section 2(e) of the Payment of Gratuity Act 1972 and held as under: the Railways considered inter alia “10. The 1972 Act was enacted to provide for a employees in relation to railway companies. 11. Section 2(e) of the 1972 Act defines “employee” to mean for payment of gratuity unskilled “any person employed on wages in any establishment factory mine oilfield plantation port railway company or shop to do any skilled manual semi skilled 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”. The definition thus excludes an employee holding a civil post under the Central Government and governed by another Act or Rules providing for gratuity. Thus the Supreme Court held that a Railway employee would be governed by the specific Rules applicable to employees of Railways and not by the Payment of Gratuity Act 1972 in view of the express exclusion in Sec. 2(e) of the Act. W.P.(C) 13330 2021 Digitally Signed By:DEVANSHUJOSHISigning Date:26.11.2021 15:47:19 “11. Considering the fact that the jurisdiction of the Controlling Authority itself is being disputed by the Union of India this Court is of the opinion that the said issue deserves to first be considered by the Appellate Authority as it goes to the root of the matter itself. If the Controlling Authority did not have jurisdiction under the Payment of Gratuity Act 1972 the order would be liable to be challenged by the Union of India and the period of limitation prescribed under the Act may not apply. In these circumstances the issue of jurisdiction having been raised this Court is of the opinion that the said issue ought to be adjudicated by the Appellate Authority under the Payment of Gratuity Act 1972 and the Appeal ought not to be rejected simply on the ground of being barred by limitation. In view of the above discussion the following directions are issued: The matters are remanded back Appellate Authority under the Payment of Gratuity Act 1972. The delay in filing the appeal by the Union of India before the Appellate Authority shall stand condoned and shall not come in the way of the issue as to applicability of the Act from being adjudicated. The appeals shall be heard on the issue of jurisdiction raised by the Union of India considering the legal position as held in Union of India v. Manik Lal Banerjeeof the payment of Gratuity Act 1972 excludes the employees of the Central Government and State Government receiving pension and gratuity under the Pension Rules but not an employee of the Municipal corporation of Delhi.” These are legal issues which go to the root of the matter. The legal W.P.(C) 13330 2021 Digitally Signed By:DEVANSHUJOSHISigning Date:26.11.2021 15:47:19 issues raised by the Petitioners deserve to be adjudicated upon by the Appellate Authority. The delay of approximately four months in filing the appeal before the Appellate Authority is accordingly condoned. Notice is not being issued to the Workman in this matter as that would lead to further costs to the Workman. Accordingly the delay is condoned with payment of Rs.10 000 as costs to the Workman by the Petitioner on the first date of hearing before the Appellate Authority. Subject to such payment being made to the Workman in time the appeal shall be adjudicated upon by the Appellate Authority on merits keeping in mind the grounds raised by the Petitioner and the facts discussed herein above as also the judgment cited above. The Appellate Authority to dispose of the matter within a period of three months from the first date of hearing after dealing by the all ground raised by the Petitioner. Let the Petitioner and Workman appear before the Appellate Authority on 6th January 2022. Copy of this order be communicated to the Appellate Authority under the Payment of Gratuity Act 1972 & Dy. Chief Labour Commissioner Central) Government of India Ministry of Labour & Employment 4th Floor Jeevandeep Building Parliament Street New Delhi 110001. 10. Copy of this order be communicated to the Workman by the Registry 11. With these observations the petition with all pending applications is as also by the Petitioner. disposed of. PRATHIBA M. SINGH NOVEMBER 25 2021 MR MS W.P.(C) 13330 2021 Digitally Signed By:DEVANSHUJOSHISigning Date:26.11.2021 15:47:19

If anyone is declared as an absconder/proclaimed offender in terms of Section 82 of CrPC, he is not entitled to the relief of anticipatory bail: Supreme Court

If anyone is declared as an absconder/proclaimed offender in terms of Section 82 of CrPC, he is not entitled to the relief of anticipatory bail as upheld by the Hon’ble Supreme Court through the learned bench led by Justice M. R. Shah in the case of Prem Shankar Prasad v. The State of Bihar & Anr. (CRIMINAL APPEAL NO.1209 OF 2021) The brief facts of the case are that the appellant filed an FIR against respondent No.2 for the offences punishable under sections 406, 407, 468, 506 of the Indian Penal Code, 1860. A warrant of arrest came to be issued by learned Chief Judicial Magistrate, Saran, Chapra. It appears that thereafter respondent No.2 – accused is absconding and concealing himself to avoid service of warrant of arrest. Learned Chief Judicial Magistrate issued a proclamation against respondent No.2 under section 82 Cr.P.C. Only thereafter, the accused filed anticipatory bail application before learned Trial Court. By a detailed order, the learned Trial Court dismissed the said anticipatory bail application and rejected the prayer for anticipatory bail on merits as well as on the ground that as the accused is absconding and even the proceedings under section 82/83 Cr.P.C have been issued, the accused is not entitled to the anticipatory bail. Thereafter the accused approached the High Court by way of present application and, ignoring the aforesaid relevant aspect, by the impugned judgment and order the High Court has allowed the said anticipatory bail by observing that in the event of his arrest/surrender within six weeks in the Court below, he may be released on bail subject to the conditions as laid down under section 438 (2) of Cr.P.C. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court granting anticipatory bail to respondent No.2 – accused, the original informant/complainant – appellant has preferred the present appeal. The Hon’ble Supreme Court held, “The High court has committed an error in granting anticipatory bail to respondent No.2 – accused ignoring the proceedings under Section 82­83 of Cr.P.C. At this stage, it is required to be noted that respondent No.2 ­ accused has been charge sheeted for the offences punishable under sections 406 and 420, etc. and a charge­sheet has been filed in the court of learned Magistrate Court. In view of the reasons stated above, the impugned judgment and order dated 14.08.2019 passed by the High Court granting anticipatory bail to respondent No.2 – accused is un­sustainable and is accordingly quashed and set aside.”

and order dated 14.08.2019 passed by the High Court of Digitally signed by RNatarajanDate: 2021.10.2116:32:23 ISTReason:Signature Not Verified 2. That first information report came to be filed by the appellant herein against respondent No.2 with Chapra Town Police Station Saran in case No.453 of 2018 for the offences punishable under sections 406 407 468 506 of the Indian Penal Code 1860. A warrant of arrest came to be issued by learned Chief Judicial Magistrate Saran Chapra on 19.12.2018. It appears that thereafter respondent No.2 of warrant of arrest. Thereafter learned Chief Judicial Magistrate issued a proclamation against respondent No.2 under section 82 Cr.PC. Only thereafter and issuance of proclamation under section 82 Cr.PC respondent No.2 accused filed anticipatory bail application before learned Trial Court dismissed the said anticipatory bail application and the ground that as the accused is absconding and even the the accused approached the High Court by way of present not be allowed the privilege of anticipatory bail ignoring the the High Court has allowed the said anticipatory bail by observing that in the event of his arrest surrender within six weeks in the Court below he may be released on bail on amount each to the satisfaction of the learned Chief Judicial Magistrate Saran Chapra and subject to the conditions as laid­ 4. Shri Rituraj Biswas learned Advocate appearing on behalf of circumstances of the case the High Court has committed a avoiding the arrest and even did not co­operate with investigating agency and even after the arrest warrants were issued the proceedings under sections 82­83 of Cr.PC were 4.2 It is submitted that though the factum of initiation of offences under sections 406 420 of IPC which were in detail considered by the learned Trial Court while rejecting the bail to respondent No.2 solely observing that the nature of that merely because it was a business transaction without further considering the nature of allegations the High Court 4.5 Relying upon the decision of this court in case of State of 4.6 It is further submitted that even subsequently a charge­sheet has been filed against the accused respondent No.2 for the High Court granting anticipatory bail to respondent No.2 5. Shri Devashish Bharuka learned Advocate appearing on behalf of the State has supported the appellant and has submitted accused a charge­sheet has been filed against the accused 6. Shri Abhishek learned Advocate appearing on behalf of respondent No.2 has vehemently submitted that in the facts and circumstances of the case the High Court has not that at the most the case may fall under section 138 of 6.2 It is submitted that as such respondent No.2 accused was 6.3 It is further submitted by the learned counsel appearing on charge­sheet has been filed in the court but the learned counsel appearing on behalf of the State and the learned has been filed against respondent no.2 accused for the accused. It has come on record that the arrest warrant was Judicial Magistrate dated 10.01.2019. Only thereafter learned Additional Sessions Judge Saran by a reasoned order The relevant observations made by the learned Additional Sessions Judge Saran while rejecting the anticipatory bail “Perused the record. The prosecution case as alleged in the typed application of the informant Prem Shankar Prasad is that the informant is a retailer shopkeeper of medicines in the name of Maa Medical Store Gandhi Chauk Chapra and the the name of Rajnish Pharma Mauna Pakari. The petitioner and the informant were on good terms so the informant gave Rs. 36 00 000 ­ to the 36 00 000 ­ then the petitioner gave a cheque of Rs. 10 00 000 ­ bearing cheque no. 137763 dated brothers of the petitioner misbehaved with the informant. The brothers of the petitioner also threatened not to contact the police or the consequences will be worst: On this informant that in para 4 there is a re­statement of the informant in which he has supported the prosecution case. In para 8 9 10 and 11 witness Amit Kumar Sinha Awadhesh Kumar Dhannu Kumar and Uday Shankar Prasad has been have supported the prosecution case. In para 16 prosecution case. In found true under sections 420 406 of IPC and 138 of NI Act. In para 23 sell the medicines of his company in course whereof he has borrowed a sum of Rs. 7 10 000 ­ from him. When he asked to return back the money he has issued a cheque of the aforesaid amount which was dishonor by his bank due to insufficient fund. In para 39 another witness Pramod Kumar Thakur has been examined who has borrowed a sum of Rs. 10 00 000 ­ on the pretext of purchasing a piece of land. When he demanded his money back. Rajnish Srivastava dishonored by the bank. The investigation in the 36 00 000 ­ to this petitioner in order to supply the amount was ever refunded. Admittedly the undertaking as there is nothing on record to substantiate the aforesaid averments but the fact said amount has issued a cheque of Rs.10 00 000 ­ bearing cheque no. 137763 dated the bank but the same was dishonored with record I further find that the petitioner is in the habit of borrowing money from different persons and then used to make default in payment that it was brought to the notice of the High Court that respondent No.2 accused is absconding and even the allegations of cheating etc. which came to be considered by learned Additional Sessions Judge has not at all been considered by the High Court. Even the High Court has just 7.3 In the case of State of Madhya Pradesh vs. Pradeep Sharma declared as an absconder proclaimed offender in terms of “14. In order to answer the above question it is apprehending arrest.—(1) Where any High Court or the Court of Session for a and that court may after taking into consideration inter alia the following the fact as to whether he has previously the possibility of the applicant to flee iv) where the accusation has been made either reject the application forthwith or issue an interim order for the grant of Provided that where the High Court or as the case may be the Court of Session has section or has rejected the application for an officer in charge of a police station to The above provision makes it clear that the power exercisable under Section 438 of the Code is that the person may be falsely implicated or where there are reasonable grounds for holding that a person accused of an offence is not likely to “16. Section 438 is a procedural provision of an individual who is entitled to plead innocence since he is not on the date of application for exercise of power under Section 438 of the Code convicted for the believe’ that he may be arrested in a non­ bailable offence. Use of the expression the applicant may be arrested must be founded on reasonable grounds. Mere ‘fear’ is not ‘belief’ for which reason it is not some sort of vague apprehension that someone is going to make an accusation against him in pursuance of which he may the applicant is based that he may be arrested in non­bailable offence must be is made to the High Court or the Court of Session it is for the court concerned to cannot be invoked after arrest of the accused. A blanket order should not be generally passed. It flows from the very language of the section which requires the applicant to show that he has reason to only if there is something tangible to go by applicant s apprehension that he may be arrested is genuine. Normally a direction should not issue to the effect that the arrested for whichever offence whatsoever’ it would serve as a blanket to cover or protect any and every kind of allegedly unlawful activity. An order under Section 438 is a device to secure the individual s liberty it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations likely or in the background of the legal position set to be a case where any order in terms of 8 SCC 730] this Court (of which both of us were an absconder or proclaimed offender in terms of is clear that the present appellant was not available for interrogation and investigation and was declared as ‘absconder’. Normally when the accused is ‘absconding’ and or concealing himself in order to avoid execution of warrant and declared as a the Code he is not entitled to the relief of declared as an absconder proclaimed offender in Thus the High court has committed an error in granting anticipatory bail to respondent No.2 accused ignoring the the anticipatory bail to respondent No.2 accused that the nature of accusation is arising out of a business transaction more particularly sections 406 420 467 468 etc. What is required to be considered is the nature of allegation and the of a business transaction. At this stage it is required to be for the offences punishable under sections 406 and 420 etc and a charge­sheet has been filed in the court of learned In view of the above and for the reasons stated above the High Court granting anticipatory bail to respondent No.2 accused to pray for regular bail which may be considered in

Basic element of desertion is animus deserendi : High Court of Tripura

The parties are living apart over a considerable period of time. But this is not the only test of irretrievable break down of marriage. Divorce is found on fault theory. Basic element of desertion is animus deserendi which has not been proved in this case. This was held in Sri Bijit Kumar Banik v. SSmti. Kaberi Banik (Debbarma) [Mat. Appl. No. 12 of 2015] in the High Court of Tripura by division bench consisting of JUSTICE S.TALAPATRA and JUSTICE S.G.CHATTOPADHYAY. Facts are that the appellant filed petition under Section 13 of the Hindu Marriage Act seeking divorce on basis of desertion and cruelty. On appreciation of evidence, the Family Court rejected the petition of the appellant for divorce, which has been challenged by the appellant in the present appeal. The counsel for the appellant contended that adequate proof of cruelty and desertion against the respondent exists, the rejection of his petition was erroneous. Respondent was cruel and had even prosecuted them under Section 498A IPC and had permanently abandoned her husband along with the two children. The court made reference to the Supreme Court judgement in U.SREE V. U.SRINIVAS, wherein the following observations were made, “Presently, we shall advert to the finding recorded by the learned Family Judge and the High Court relating to desertion by the wife. As the factual matrix would reveal, both the Courts have proceeded on the base that the wife had not endeavored to reunite herself with the husband and there had long lapse of time since they had lived together as husband and wife. On the aforesaid foundation, the conclusion has been drawn that there is an animus deserendi on the part of the wife. To test the tenability of the said conclusion, we have perused the petition for divorce from which it is evident that there is no pleading with regard to desertion.”

HIGH COURT OF TRIPURA Mat. Appl. No. 115 B E F O R E HON’BLE MR. JUSTICE S.TALAPATRA HON’BLE MR. JUSTICE S.G.CHATTOPADHYAY Sri Bijit Kumar Banik S O Late Brajalal Banik Resident of Palace Compound P.S East Agartala District West Tripura Appellant(s) Versus Smti. Kaberi BanikW O Sri Bijit Kumar Banik D O Late Rohini Debbarma Now residing at Harish Thakur Lane near Bijoy Kumar Girls H.S. School B.K. Road Krishnanagar P.S. West Agartala District West Tripura Respondent(s) For Appellant(s) Mr. S.Deb Sr.Adv. Mr. Ranjit Dasgupta Adv. For Respondent(s) Date of hearing Date of pronouncement : 01.04.2021 Ms. P. Dhar Adv. Mr. Jhon Debbarma Adv. Mr. H. Debbarma Adv. 12.02.2021 Whether fit for reporting Yes No JUDGMENT Per S.G.Chattopadhyay J] The present appeal is filed by the appellant husband being aggrieved by and dissatisfied with the judgment dated 09.09.2015 delivered by the Family Court Agartala in divorce. Case No. T.S. 104 of 2009 rejecting his petition for The factual background is as follows: Appellant Bijit Kr.Banik and respondent Kaberi Banik entered into matrimonial alliance as per hindu rites and rituals at Agartala on 22.07.1994. After marriage respondent wife came to her matrimonial home. But her conduct to the appellant and his family members was very indignant and rude. She did not like to share a common mess with them. To avoid trouble the appellant rented a house near her parental home and the spouses started living together in the rented house. She became more abusive in the rented house and spoiled the domestic peace. Appellant tried to bring about changes in her by persuasion. But his efforts did not work. She once physically assaulted her appellant husband by fist and blows. However the wife conceived in the rented house and a son was born to them. After the death of his father the appellant returned to his ancestral house at palace compound Agartala along with his wife and son where the second son was born to them on 15.10.2003. When she was living with her appellant husband after the death of her father in law she raised quarrel with her husband and lodged a complaint at the East Agartala woman police station on 08.02.2004 against her appellant husband on various allegations of cruelty. As a result of her complaint police arrested her appellant husband. Thereafter on 18.03.2004 she appeared at the police station and informed the officer in charge of East Agartala Woman Police Station that pursuant to an altercation with her husband on 07.02.2004 she returned to her parents and lodged a case against her husband at the spur of moment for which her husband suffered detention in police custody. She withdrew her case and resumed conjugal life with the appellant. On 30.10.2005 elder brother of the respondent visited the house of the appellant. His wife then left her matrimonial home with her elder brother along with her children. The appellant met her several times at her matrimonial home to bring her back. But she did not return. The appellant husband then filed a petition at East Agartala police station on 16.12.2005 seeking police help to rescue his wife and children from her parental home. 3 years thereafter the appellant sent a letter to his wife by post registered with AD on 01.12.2008 seeking her consent for filing a petition for divorce on mutual consent. Having received no response from his wife he filed petition in the Family Court at Agartala under Section 13 of the Hindu Marriage Act seeking divorce. The respondent wife filed written objection denying the allegations of her husband. She admitted that her elder son was born in the rented house. She also stated that after the death of her father in law she returned to her in law’s house where the second son was born to them. According to the respondent she never wanted separation from the family members of her husband. According to her when her in laws’ house at Palace Compound was demolished for reconstruction she shifted to a rented house along with all members of the family of her husband. It was stated by the respondent that she never misbehaved with her husband. Rather she was always willing to live a happy conjugal life with her husband along with their children. The respondent therefore urged the court for dismissal of the divorce petition filed by her husband. On the basis of the pleadings of the parties the following issue was framed by the Family Court: “Whether the petitioner was subjected to cruelty by his wife and whether he was entitled to get the decree of divorce from his wife.” After the issue was framed the parties were called to adduce their evidence. The plaintiff adduced the oral evidence of himself and his neighbour Kaushik Dey. His defendant wife on the other hand examined 03 witnesses including herself. She was examined as DW 1 her relative Smt. Maya Debbarma was examined as DW 2 and her sister Rakhi Debbarma was examined as DW 3. On appreciation of evidence the Family Court by judgment and order dated 18.02.2013 in T.S 104 of 2009 declined to grant divorce in favour of the appellant husband and dismissed the suit observing as follows: “20) Considering the submission I find that this court is to consider the prayer for divorce as per Hindu marriage Act 1955 on the ground as provided in Sec.13 of the Act and there is no such ground for granting divorce on the fact that the marriage between the parties irretrievably broken down and as such I find no merit in the submission made by the Ld. Counsel of the petitioner in this 21) Besides considering the rest submission of the Ld. Counsel of the petitioner that there is no denial of the statement made on affidavit by the petitioner and her witnesses during their cross examination I find that this court directed both the parties to produce their witnesses before for cross examination during the trial in view of Sec.16 of the Family Courts Act 1984 and in no circumstances the examination in chief of the court the petitioner and her witnesses submitted in this court was accepted by this court subject to cross examination and as such I find no to consider 22) In the result I find that the petitioner is not entitled to any decree of divorce as prayed for against the respondent and accordingly all this issues No. ’I’ ‘II’ and ‘III’ are decided in the negative and against the petitioner.” Aggrieved by and dissatisfied with the said judgment of the Family Court the appellant husband challenged the judgment in this court in Matt.App.10 of 2013. It was observed by this court in the said appeal that no effective opportunity was granted to the other side for cross examination of the PWs during trial of the case. Therefore vide order dated 18.02.2015 in Matt. App. 113 this court remanded back the case to the Family Court for fresh consideration in terms of the directions issued by this court. Relevant extract of the judgment of this court is as under: “7. On scrutiny of the records as well as on appreciating the submissions made by the learned counsel for the parties this Court finds that no effective opportunity was granted for cross examination of PW 1 and PW 3. It further appears from their cross examination that the Court has only noted after completion of the examination in chief that “It is not a fact that I deposed false”. It appears that the cross examination was not carried out for exposing the truth rather having written that “It is not a fact that I witnesses was declared closed. the examination of 8. We are shocked to observe the way the family court has recorded the cross examination. At this juncture Ms Dhar learned counsel has submitted that the defendant has been seriously prejudiced for denial of the opportunity to cross examine. Therefore it is apparent that without such opportunities granted to the defendant the impugned judgment and decree has been passed. There are several judgments as stated where this High Court has rendered in unequivocal terms that the right to cross examine is a fundamental facet of the fair trial and component of natural justice. We are constrained to observe further that the way the cross examination has been done and recorded by the court of the Judge Family Court is wholly unacceptable in terms of the doctrine of natural justice. Apart that the way the documentary evidence has been introduced in the records has not been introduced following the proper procedure as the respondent defendant in the suit did not have any opportunity of raising any objection against admissibility or relevance of the documentary evidence. These are material irregularities in the proceeding those have incapacitated the court to arrive at the correct finding on the fact. It is trite that fair procedure is a fundamental facet of the rule of law. Even though the Judge Family court has the statutory right to devise its own procedure but he cannot devise procedure which is not in consonance with the principles of natural justice. 9. Hence this Court has no hesitation to hold that the impugned judgment is liable to be set aside and accordingly the judgment and decree dated 18.02.2013 are set aside for the limited purpose of remanding the matter back for re commencing the inquiry after affording opportunity of cross examination to the respondent defendant in the suit and to allow the respondent the defendant No. 1 in the suit to raise any objection in regard to documentary evidence. Hence this matter is remitted for fresh consideration in the manner as directed above. 10. In the result this appeal stands partly allowed to the extent as indicated above. Draw the decree accordingly. Send down the LCRs forthwith with a copy of this order. 11. Before parting with the records the Judge Family Court Agartala West Tripura is directed to complete the entire proceedings within six months from the date of receipt of the case records along with a copy of this order. ” Pursuant to the direction of this court in the aforementioned appeal the Family Court framed the following “i) Whether the husband petitioner was subjected to cruelty by the wife respondent and if so to what extent. ii) Has the petitioner been deserted by the prayed for.” iii) Is the petitioner entitled to decree as Each of the parties was given opportunity to cross examine the witnesses of the other side. Accordingly PW 1 that is the appellant husband and his neighbour Kaushik Deywere cross examined at length on behalf of the defendant. Similarly DW 1 i.e. the defendant wife her relative Smt. Maya Debbarma DW 2 and her sister Smt. Rakhi Debbarma DW 3 were also cross examined at length on behalf of the appellant On appreciation of evidence the Family Court vide fresh judgment dated 09.09.2015 in T.S DR.N.G.DASTANE Versus MRS. S.DASTANE reported in 2 SCC 326 ii) V.BHAGAT Versus D.BHAGATreported in1 SCC 337 iii) SAVITRI PANDEY Versus PREM CHANDRA PANDEY reported in2 SCC 73 iv) NAVEEN KOHLI Versus NEELU KOHLI reported in4 SCC 558 v) SAMAR GHOSH Versus. JAYA GHOSH reported in4 SCC 511 vi) GURBUX SINGH Versus HARMINDER KAUR reported in14 SCC 301 vii) U.SREE Versus U.SRINIVAS reported in2 SCC 114 Ms. P.Dhar learned Advocate appearing for the respondent wife on the other hand argued that the respondent wife by adducing consistent and coherent evidence proved that she was treated with cruelty by her appellant husband. According to Ms. Dhar learned Advocate the husband compelled his respondent wife to leave her matrimonial home who is now trying to take the advantage of his own wrong. It is submitted by Ms. Dhar learned Advocate that even though her complaint was genuine day after filing the complaint against her husband at the police station the wife had withdrawn her complaint at the instance of her husband and in laws to save their relationship. If she really intended to terminate the relationship she would not have withdrawn the complaint against her husband. It is submitted by learned counsel that the respondent wife has 02 children and she is still willing to live with her husband. Relying on the decision of the Apex Court in the case of Savitri Pandey learned counsel submits that neither cruelty nor desertion has been proved against the respondent wife. Moreover the theory of irretrievable break down of marriage does not apply to this case because given facts and circumstances of the case do not establish that their marriage has become dead. Learned counsel therefore urges the court for dismissal of the appeal. We may recall that the appellant in support of his case has examined himself as PW 1 and his neighbour Koushik Dey as PW 2. Bijit Kumar Banik the appellant PW 1 stated at the trial that inspite of having his ancestral house at palace compound he had to stay in a rented house for about 8 years from 1994 to 2002 at the insistence of his wife where their first son was born. After the birth of their son they returned to the ancestral house of the appellant and stayed there for about 1 year where their second son was born. Again his wife demanded for moving to a rented house. The appellant could not accede to her proposal because he did not want to leave his old mother alone in the ancestral house. Finally in the month of October 2005 his wife left his company bag and baggage along with their sons. He sought police help to bring her back but his efforts did not work. Since then his wife is living along with the sons away from him. According to the appellant as an agent of ‘Rose Valley’ his wife earns ₹10 000 per month. The appellant PW 1 was cross examined at length on behalf of his respondent wife. In his cross examination he stated that after separation he did not write any letter to his wife to get her back home. Several suggestions were put to him on behalf of his wife during the cross examination. It was suggested to him that his wife was treated with cruelty at her matrimonial home. The appellant denied the suggestion. Among the other suggestions it was also suggested to him that he made false statement before the court that his wife deserted him. It was also denied by the PW. As stated above the appellant also examined his neighbour Koushik Dey as PW 2 who stated that the appellant and his wife lived a peaceful conjugal life in the rented house for many years. Thereafter the appellant came back to his ancestral house along with his wife and son. Then the wife of the appellant left her matrimonial home at a night at about 12 O’clock. The PW was not aware about the actual reason of their matrimonial dispute. In his cross examination he denied that he gave false statement before the court. The respondent on the other hand examined herself as DW 1. She stated that after marriage she stayed with her husband in a rented house for about 8 years. After the death of her father in law she was taken by her appellant husband to his ancestral house at palace compound where their second son was born. The respondent wife stated that problems started after the birth of their second son. Her husband started quarrelling with her on trivial issues. Every time after her return from her parental home her husband used to encounter her with queries like why she delayed in returning home etc. She felt humiliated for such conduct of her husband. In her statement she referred to an incidence of such humiliation which is as under: “.....After birth of my 2nd son in one occasion there was a program at Astabal market in front of our house. My maternal sister in law also came to our house to attend that program where some artists had come from outside Tripura. My husband was absent at that time in the house. One of my sister who is my distant relative used to stay in my marital home as a tenant. On that day I took permission from the program and mother in law and attended accordingly I along with my maternal sister in law and the sister went to attend the program. At about 9.30 pm I along with my maternal sister in law came back to our house where I found my husband sleeping in the house. My maternal sister in law left the house. After that my husband had started enquiry why I went to attend the program without his permission and in this respect started altercation and finally assaulted me physically causing trauma on my face. I had to bear the pain and on the next day I left my marital home and lodged an FIR to Women’s PS. I also went to GB Hospital for my treatment. Later on I filed a petition to Women’s PS not to proceed with that case...” In her cross examination she reiterated her statements made out in her examination in chief and denied the suggestion of her husband that she gave false statement before the court. She asserted in cross examination that she never deserted her husband because she was always willing to live conjugal life with her husband. Smt. Maya Debbarmaa distant relative of the respondent wife stated that she was a tenant in the ancestral house of the appellant from the year 2001 to 2004. She supported the statement made by the DW 1 and stated as “In one occasion I along with the wife of the petitioner and one of her sister in law went to attend a program in the Astabal market. At about 10 11 pm. before my arrival the op came to her marital home to feed her baby. After arrival to my house I used to her hot altercation quarrel between the petitioner and his wife. On the next day morning I was called by the petitioner and his mother to his house and accordingly I went to their house and found both of them in altercation. The husband petitioner suddenly slap to his wife on her face to which I raised strong objection. Thereafter I came back to my house but the altercation was going on.” In her cross examination she reasserted incidence of physical torture of the appellant on his wife and denied his suggestion that she gave false statement before the DW 3 Smt. Rakhi Debbarma who is the sister of respondent wife also supported the incidence of physical assault on her sister by her appellant husband. She stated that at about 12.45 O’clock in one night her sister wanted to speak to her over telephone. Soon after she picked up the receiver she heard her sister crying from the other end. Her appellant brother in law then came between them. The PW asked her appellant brother in law to give the phone to her sister. Reluctant appellant then gave the phone to her sister who told the PW over telephone that she was physically assaulted by her appellant husband and she requested the PW to take her back from her matrimonial home. Immediately the PW along with her husband and one of her neighbours rushed to the house of her sister and noticed bleeding injury on the face of her sister. She brought her sister to her home. But the appellant did not allow his son to go with them. On the following day the PW had taken her sister to hospital. After treatment she was sent to her matrimonial home. But ultimately thereafter she had to leave her in law’s house because of appellant’s cruel treatment. In her cross examination it was suggested to her on behalf of the appellant that entire statement of her was a falsehood. She denied the suggestion. Though the appellant did not specifically assign any ground of divorce in his petition dated 13.05.2009 from his averments in the petition it can be gathered that his petition is founded on the grounds of cruelty and desertion. The relevant averments made by the appellant in paragraph 11 and 12 are as “11. …The defendant had without any rhyme or reason withdrawn her from cohabitation and had not shown any intention for resumption any conjugal right nor did she show any respect for the performance of martial obligation. The marriage had for all purposes failed and has become a deadwood. The defendant received the said letter on 26.12.2008. Despite that the defendant has neither come back nor replied to that. That the defendant wife left her husband and matrimonial home out of her own wish and without consent of the plaintiff and has not so far made any attempt to come back to the plaintiff’s house. The marriage is not only to have any symbolical value but also meaning of marital good relationship between the parties of the marriage. the statement made 12. From paragraphs it would be clear that the plaintiff has been subjected to intentional cruelty by the defendant soon after the marriage and such cruelties are sufficient ground to get a decree of dissolution of marriage between the plaintiff and the defendant.” Apart from these two grounds learned counsel appearing for the appellant also emphasised on the ground of irretrievable break down of marriage. It has been submitted by him that during the last 15 years there was no meeting between the spouses which lead to the presumption that their marriage has broken down irretrievably and denial of divorce will cause misery to both of them. As discussed Mr.Sankar Deb learned counsel of the appellant husband has relied on few decisions of the Apex Court to support his contentions. Reliance has been placed by him on the decision of the Apex Court in the case of Dr.N.G.Dastanein which the factual context is entirely different. In that case the Apex Court first examined whether the conduct of the respondent wife amounted to cruelty. The court held that constant threat of the wife of the appellant that she would put an end to her own life or that she would set the house on fire her threat that she would make her husband lose his job and have the matters published in newspapers and her persistent abuse and insults hurled at her husband and his parents imperilled the appellant’s sense of personal safety mental happiness job satisfaction and reputation which amounted to cruelty within the meaning of the law. The next question which was examined by the court was whether the husband had at any time condoned the cruelty of his wife. With regard to the question of condonation the Apex Court held that condonation means forgivingness of the matrimonial offence and the restoration of offending spouse to the same position as he or she occupied before the offence was committed. In the said case the court held that though the respondent wife was guilty of cruelty but her appellant husband condoned it and her subsequent conduct was not such as to amount to a revival of the original state of cruelty or cause of action. Accordingly appeal of the husband was dismissed. The facts of the two cases being entirely distinguishable the appellant cannot derive any benefit from the said decision. In the case of V.Bhagat(supra) which has also been relied upon by the learned counsel of the appellant the appellant husband sued his wife for divorce on the ground that his wife was guilty of adultery. The divorce petition was transferred from the district court to the high court to expedite its disposal. Even thereafter petition was pending over a period of 8 years at the trial stage. The appellant husband came to the apex court seeking direction for speedy hearing of the divorce petition on day to day basis. Accordingly direction was issued by the apex court for day to day hearing and disposal of the matter within a reasonable time. The matter could not be disposed of even after 28 months. The appellant husband again approached the apex court. The court found that a good part of the lives of both the parties has been consumed in this litigation and yet the end is not in sight. In these circumstances the apex court had withdrawn the case to its file and decided the matter. Though the grounds of adultery against the wife was not proved the apex court granted divorce in the case observing as “20 She is fully aware that the marriage is long dead and over. It is her case that the petitioner is genetically insane. Despite all that she says that she wants to live with the petitioner. The obvious conclusion is that she has resolved to live in agony only to make life a miserable hell for the petitioner as well. This type of callous attitude in the context of the facts of this case leaves no manner of doubt in our mind that the respondent is bent upon treating the petitioner with mental cruelty. It is abundantly clear that the marriage between the parties has broken down irretrievably and there is no chance of their coming together or living together again. Having regard to the peculiar features of this case we are of the opinion that the marriage between the parties should be dissolved under Section 13(1)(i a) of Hindu Marriage Act and we do accordingly. Having regard to the peculiar facts and circumstances of this case and its progress over the last eight years detailed hereinbefore we are of the opinion that it is a fit case for cutting across the procedural objections to give a quietus to the matter. 21. Before parting with this case we think it necessary to append a clarification. Merely because there are allegations and counter allegations a decree of divorce cannot follow. Nor is mere delay in disposal of the divorce proceedings by itself a ground. There must be really some extraordinary features to warrant grant of divorce on the basis of pleadingswithout a full trial. Irretrievable breakdown of the marriage is not a ground by itself. But while scrutinising the evidence on record to determine whether the ground(s) alleged is are made out and in determining the relief to be granted the said circumstance can certainly be borne in mind. The unusual step as the one taken by us herein can be resorted to only to clear up an insoluble mess when the court finds it in the interest of both the parties. 22. The petition for divorce H.M. Case No. 1 of 1986 pending in the Delhi High Court is withdrawn to the file of this Court and is allowed. The marriage between the parties is dissolved. In the circumstances the allegations levelled by the petitioner against the wife are held not proved . The honour and character of the respondent wife stands vindicated.” The facts of two cases are completely distinguishable. The apex court had withdrawn the case to the file of the apex court under unusual circumstances and decided the matter. The case in hand is not covered by the said decision of the apex court. In the case of Savitri Pandey case of the appellant wife seeking divorce against her husband on the ground of cruelty and desertion was allowed by the family court. In the said suit the wife also claimed return of her ornaments given at the time of marriage. While granting divorce the family court also directed her husband to return a sum of Rs.12 000 as the price of the scooter which was given to him at the time of the marriage and payment of a monthly sum of Rs.500 as permanent alimony. No direction was issued for return of jewellery to the wife. Husband appalled in the high court against the decree of divorce. Wife also filed appeal against the said judgment on the ground that no order was issued for return of her jewellery. The appeals were disposed of by the high court by holding that the appellant wife herself was a defaulting party and neither the allegations of cruelty nor the ground of desertion were proved. Decree of divorce granted by the family court was set aside. In this backdrop of circumstances the matter came to the Supreme Court. In the said case allegations of the wife were that their marriage was solemnized on 06.05.1987 and 21.06.1987 and their marriage was never consummated. During marriage parents of the wife gave cash and valuables. Despite that the husband was demanding more cash and started torturing her on false pretext. Aggrieved with his attitude she filed the divorce petition. The husband denied all allegations and pleaded that his wife was taking advantage of her own wrongs. The apex court found that neither desertion nor cruelty was proved against the husband. It was held by the apex court that the wife could not lead any evidence to show that she was forced to leave the company of her husband or that she was thrown away from the matrimonial home or that she was forced to live separately and that the husband had intended animus deserendi. It was observed by the apex court that approach of court should be to preserve the matrimonial home and as such there should be reluctance to dissolve the marriage on the asking of one of the parties. In the said case court found that the appellant wife herself was trying to take advantage of her own wrong and in the circumstances of the case their marriage cannot be held to have become dead for invoking the jurisdiction of the court under article 142 of the Constitution for dissolving the marriage. Accordingly the Apex Court dismissed the appeal of the wife against the judgment of the High Court. With regard to the irretrievable breakdown theory of marriage as pleaded by the learned counsel of the appellant the Apex Court in the said judgment vide paragraph 17 has held as follows: “17.The Marriage between the parties cannot be dissolved only on the averments made by one of the parties that as the marriage between them has broken down no useful purpose would be served to keep it alive. The legislature in its wisdom despite observation of this Court has not thought it proper to provide for dissolution of the marriage on such averments. There may be cases where on facts it is found that as the marriage has become dead on account of contributory acts of commission and omission of the parties no useful purpose would be served by keeping such marriage alive. The sanctity of marriage cannot be left at the whims of one of the annoying spouses. This Court in V. Bhagat v. Mrs. D.Bhagatheld that irretrievable breakdown of the marriage is not a ground by itself to dissolve it.” In the case of Naveen Kohli(supra) husband Naveen Kohli sought for divorce against his wife Neelu Kohli which was dismissed by the family court. Appeal of the wife was allowed by the High Court and divorce granted by the family court was dismissed. Appellant husband then came to the Supreme Court. In the said case the husband alleged in his divorce petition that his wife was a bad tempered woman and she was of rude behaviour and after marriage she started quarrelling and misbehaving with her husband and parents. As a result the husband and his parents left their ancestral house and started living in a rented house. In the said case it was also alleged by the husband that he found his wife indulging in an indecent manner in a party and she was also found in a compromising position with another man. The wife also showed extreme cruelty against her husband by lodging series of criminal cases under various sections of IPC against her husband. It was proved by the husband that she lodged at least 10 criminal cases against him. Moreover she also opposed the bail application moved by her husband and in one case in which final report was filed for lack of evidence she raised a protest petition. The Apex Court observed that conduct of the wife clearly demonstrates her deep and intense feeling of revenge against her husband and the Apex Court held as under: evaluation of the entire evidence it is clear that the respondent has resolved to live in agony only to make life a miserable hell for the appellant as well. This type of adamant and callous attitude in the context of the facts of this case leaves no manner of doubt in our mind that the respondent is bent upon treating the appellant with mental cruelty. It abundantly clear that the marriage between the parties had broken down irretrievably and there is no chance of their coming together or living together again.” In this factual context the Apex Court granted divorce in favour of the husband Naveen Kohli by observing as the appellant against the respondent against “86.In view of the fact that the parties have been living separately for more than 10 years and a very large number of aforementioned criminal and civil proceedings have been initiated by appellant and some proceedings have been initiated by respondent the matrimonial bond between the parties is beyond repair. A marriage between the parties is only in name. The marriage has been wrecked beyond the hope of salvage public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto. To keep the sham is obviously conducive to immorality and potentially more prejudicial to the public interest than a dissolution of the marriage bond.” In the case of Samar Ghosh(supra) the appellant husband Samar Ghosh and his wife Jaya Ghosh were both IAS officers. The factual context reveals that they were in marital tie for as long as 22 years. After solemnization of their marriage on 13.12.1984 they started living separately from 27.08.1990. The wife was a divorcee who had a daughter from her first marriage. The daughter lived with her because custody of the daughter was given to her while she obtained a decree of divorce against her first husband who was also an IAS officer. According to the appellant husband right from the beginning of their marriage his wife imposed rationing in emotions in the area of love affection future planning and normal human According to the appellant she also declared that she would not have any child from her marriage with the appellant and it was her firm decision. As a result of her stubborn attitude serious problems developed between the couple right from beginning of their marriage which kept growing. The wife was contemplating divorce and her daughter also told the appellant that her mother had decided to divorce him. Ultimately from 27.08.1990 she started living separately. In this factual backdrop the appellant husband filed a suit for grant of divorce in which the wife pleaded that her husband was guided by his relatives who were family affairs. Ultimately Addl. District Judge Alipur granted divorce on the ground of cruelty. In the appeal filed by the wife High Court reversed the judgment on the ground that the husband could not prove cruelty. The Apex Court on consideration of the cumulative facts and circumstances of the case granted divorce in favour of the appellant husband observing as under: “102. When we consideration aforementioned factors along important circumstance with an parties are admittedly living separately for more than sixteen and half years the irresistible conclusion would be that matrimonial bond has been ruptured beyond repair because of the mental cruelty caused by the respondent.”. In the case of Gurbux Singhthe appellant husband wanted dissolution of the marriage with his wife by a decree of divorce for which he filed a petition in the court of Addl. District Judge. He founded his petition on the ground of cruelty. His petition was rejected. In appeal High Court also rejected his petition. Then he approached the Supreme Court. The appellant alleged that his wife was indignant and rude to his parents and she was of the view that parents of the appellants were nuisance in her life and she pressed upon the appellant to have a separate abode away from his parents. Ultimately she left her matrimonial home along with her 03 years’ old son. The respondent wife on the other hand defended her case by saying that her husband was a habitual drunk and he threatened her to kill with poison. She also asserted that her husband committed physical assault on her by pulling her hair and giving merciless beatings in presence of his parents. The Apex Court agreeing with the concurrent findings of the trial court and High Court declined to allow divorce infavour of the appellant husband observing as under: cruelty. Mere “16. The married life should be assessed as a whole and a few isolated instances over certain period will not amount to cruelty. The ill conduct must be precedent for a fairly lengthy period where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse one party finds it extremely difficult to live with the other party no longer may amount to mental cruelty. Making certain statements on the spur of the moment and expressing certain displeasure about the behaviour of elders may not be irritations quarrels normal wear and tear of married life which happens in day to day life in all families would not be adequate for grant of divorce on the ground of cruelty. Sustained affecting physical and mental health of the other spouse may lead to mental cruelty. Both the appellant and respondent being highly qualified persons the respondent working as a Librarian in a Government Institute an isolated friction on some occasion like festival of Lohri even in the presence of others cannot be a valid ground for dissolving the marriage.” in ITI College the appellant In the case of U.Sree vs. U.Srinivas the family court dismissed the application of the wife for restitution of conjugal rights and granted decree of divorce in favour of the husband in a separate petition filed by him on the ground of cruelty committed by the wife against her husband. The aggrieved wife preferred appeal in the High Court against the decree of divorce as well as against the order by which her petition for restitution of conjugal rights was rejected. Both the appeals were dismissed by the High Court. The appellant wife then approached the Apex Court. Their marriage was solemnized on 19.11.1994. In 1995 a son was born to them. The first birth day of the son was celebrated at the parental house of the wife. After the celebration the wife stayed back with her parents for some time. She returned to her husband on 04.10.1995 and lived with the husband at his place till 03.01.1996. On 03.01.1996 her father in law by force had taken her back to her parental home. He left her daughter in law at her parental home and came back to his home. Ultimately the husband also abandoned her company. She made several efforts to get back to her husband. But her efforts did not work. Then she filed a petition for restitution of her conjugal rights. Husband’s stand was that his wife did not like anything of him. She always found fault with his lifestyle daily routine his likes and dislikes and she picked up quarrel with him on trivial issues. She also used to hurl abuses at him and his father when they were practising music together. She spread rumours among the relatives and friends pertaining to her husband’s fidelity character and habits. The husband therefore filed petition for divorce against his wife on the ground of cruelty. The wife pleaded that she was proud of the accomplishments of her husband and all allegations brought against her were untrue. She stated that after her husband had gained reputation and popularity in music and his financial status was rising he started neglecting his duties as the husband. His parents were trying second marriage of their son so that they could get enormous dowry. In this factual backdrop the Apex Court affirmed the decree for dissolution of marriage by dismissing the appeals preferred by the appellant wife on the ground of mental cruelty observing as under: “28. Tested on the touchstone of the aforesaid principles we have no trace of doubt that the finding returned by the Family Judge which has been given the stamp of approval by the High Court relating to mental cruelty cannot be said to be in ignorance of material evidence or exclusion of pertaining materials or based on perverse reasoning. In our view conclusion on that score clearly rests on proper appreciation of facts and hence we concur with the same. the aforesaid 29. Presently we shall advert to the finding recorded by the learned Family Judge and the High Court relating to desertion by the wife. As the factual matrix would reveal both the Courts have proceeded on the base that the wife had not endeavored to reunite herself with the husband and there had long lapse of time since they had lived together as husband and wife. On conclusion has been drawn that there is an animus deserendi on the part of the wife. To test the tenability of the said conclusion we have perused the petition for divorce from which it is evident that there is no pleading with regard to desertion. It needs no special emphasis to state that a specific case for desertion has is also interesting to note that the petition was not the ground of filed seeking divorce on to be pleaded. It foundation Ms. P.Dhar learned counsel appearing for the respondent wife has also relied on the following observation of the Apex Court in the case of Savitri Pandey(supra): desertion but singularly on cruelty. In the absence of a prayer in that regard we are constrained to hold that the conclusion arrived at as regards desertion by the learned Family Judge which has been concurred with by the High Court is absolutely erroneous and accordingly we overturn the same. foregoing analysis 30. From established that the husband has proved his case of mental cruelty which was foundation for seeking divorce. Therefore despite dislodging the finding of desertion we conclude and hold the respondent husband has rightly been granted a decree of “13. In any proceedings under the Act whether defended or not the court would decline to grant relief to the petitioner if it is found that the petitioner was taking advantage of his or her own wrong or disability for the purposes of the reliefs contemplated under Section 23(1) of the Act. No party can be permitted to carve out the ground for destroying the family which is the basic unit of the society. The foundation of the family rests on the institution of a legal and valid marriage. Approach of the court should be to preserve the matrimonial home and be reluctant to dissolve the marriage on the asking of one of the parties.” 33] According to Ms. Dhar learned counsel in the given case there are adequate materials available against the husband with regard to cruelty. It is pointed out by Ms. Dhar learned counsel that there is corroborative and consistent evidence that the husband physically assaulted the wife by slapping her in presence of children. She could have filed a case seeking divorce against her husband because such grievous and un excusable act of offence satisfies the test of cruelty. But the wife always tried for adjustment and condoned all his cruel conduct. Even day after the filing of the case under Section 498 IPC she rushed to the police station and had withdrawn her complaint. The wife had thus consistently shown her intention to stay with her husband amidst differences. But her husband who himself was at fault brought the divorce suit against the wife. It is submitted by learned counsel that in the case of Savitri Pandeythe Apex Court declined to grant divorce in favour of the appellant who tried to take advantage of her own wrong. Learned counsel of the appellant submits that in the present case also the appellant husband is trying to take advantage of his own wrong which should not be entertained by this court. We have already pointed out that in his divorce petition the appellant has merely mentioned Section 13 of the Hindu Marriage Act and in the body of the petition he has highlighted certain instances which indicate that he wants divorce on the ground of cruelty and desertion. The evidence of the parties have been discussed in detail. We have re evaluated and examined such evidence in the light of the judgments of the Apex Court relied upon by learned counsel of the parties. In all the cases relied upon by the learned counsel of the appellant the factual contexts are completely different. In the case of Gurbux Sinh(supra) the Apex Court has succinctly held that mere trivial irritations quarrel normal wear and tear of married life which happen in day to day life in all families would not be adequate for grant of divorce on the ground of cruelty. In Savitri Pandey(supra) the Apex Court has emphasised on the move of protecting the institution of marriage which is the basic unit of society. Also in the case of Naveen Kohli(supra) the Apex Court has held that except in the cases when the marriage is found totally dead it would be appropriate for the courts and all concerned to maintain the marriage status as far as as long as possible and whenever possible. In the case of Samar Ghosh(supra) the Apex Court after analysis and scrutiny of its past judgments on the issue laid down certain decisions on the basis of which the allegations of mental cruelty can be decided. We are of the considered view that none of these tests is satisfied in the given case. It is true that the parties are living apart over a considerable period of time. But this is not the only test of irretrievable break down of marriage. Divorce is found on fault theory. Husband applied for divorce on the ground of cruelty and desertion. He has not been able to prove either of these grounds. We have already discussed that the basic element of desertion is animus deserendi which has not been proved in this case. With regard to cruelty it is seen that the respondent wife has pointed out to serious instances of cruelty against her husband which have also been supported by consistent and coherent evidence of her witnesses. The husband on the other hand has not been able to substantiate his allegations of cruelty against his wife. In the light of the above discussions we are of the view that there is no merit in the appeal. Consequently the appeal fails and the same is dismissed with no order as to costs. Prepare the decree. Send down the LC records. JUDGE Saikat Sarma PA

The petitioner shall clear all arrears of whatever he is required to pay from his salary and emoluments and the deadline should be strictly adhered to. : High court of Patna

The petitioner was taken into custody under section 498 -A of the Indian Penal Code, “Husband or relative of husband of a woman subjecting her to cruelty. —Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be pun­ished with imprisonment for a term which may extend to three years and shall also be liable to fine.” This petition is in connection with Complaint Case No. 292-C of 2019 dated 03.05.2019. In the high court of Judicature at Patna, this judgement was given by honourable Mr Justice Ahsanuddin Amanullah on the 2nd of September 2021 in the case of Dr Navin Kumar @ Navin Kumar Singh versus the State of Bihar, [Criminal Miscellaneous No.33968 of 2020] Mr Ajay Kumar Thakur represented as the advocate for the petitioner, and Mr Jharkhandi Upadhay represented the state of Bihar as the additional Public Prosecutor, and Mr Pankaj Kumar as the Advocate for the opposite party no.2  the proceedings of the court were held via video conference. The following are the facts of the case the petitioner is the husband of the informant (opposite party no. 2), there was a matrimonial dispute and the couple had two children after the marriage and the court took steps to settle the dispute. Even with the best effort a settlement between the couple did not take place. There have been various stages regarding this dispute and finally, the parties are taking a final stand in this present petition. The informant along with her children told the court that due to her past experience she is not safe in the matrimonial home and her mental health in this home will be worse. Further, the informant held that even though the court directed the petitioner to pay some money to the informant from his salary he defaulted for many months. The petitioner intervened and made an undertaking stating that he would make an up-to-date payment of the entire outstanding dues within two weeks. The counsel for the informant (opposite party no.2) did not oppose the anticipatory bail for the petitioner but held that conditions must be put that the petitioner pays the required amount to the informant. Further, the counsel clarified that the petitioner is required to pay 35% of his salary and total emoluments, which has been stated in the petition. The counsel representing the petitioner held that the petitioner has made a strategy as to pay the dues by the 20th of September 2021 and by the 10th of October the full amount will be given to his wife either by direct transfer or debited from his salary and by depositing the money in the account of the informant. According to the order from the court, the amount has not been specified and only 35% of the petitioner’s total salary emoluments and therefore the amount may differ with respect to the salary, however, it will be strictly complied with. The court held that “the Court is inclined to grant pre-arrest bail to the petitioner. The petitioner is released on bail upon furnishing bail bonds of Rs. 25,000 with two sureties to the Judicial Magistrate, in Complaint Case No. 292-C of 2019, under Section 438(2) of the Cr.P.C. that the petitioner, by 20th September 2021, shall clear all arrears of whatever he is required to pay in terms of the order of the Court below till August 2021, and thereafter by 10th of the successive month such payment shall be made by the petitioner to the opposite party no. 2; if not directly transmitted after cutting it from the salary and emoluments paid to the petitioner, then it should be done by the petitioner himself, but the deadline should be strictly adhered to. The petition stands disposed of in the aforementioned terms.” Click here to read the judgment

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No.339620 Arising Out of PS. Case No. 292 Year 2019 Thana BHOJPUR COMPLAINT CASE District Bhojpur Dr. Navin Kumar @ Navin Kumar Singh aged about 40 years son of late Ravindra Singh resident of village Jalpura P.O. Sripalpur P.S. Koilwar District Bhojpur ... Petitioner s The State of Bihar Priyanka Devi W o Navin Kumar Singh resident of village Jalpura P.S. Koilwar District Bhojpur at present daughter of Arun Kumar Singh resident of Shivpur Anand Nagar Ara P.S. Ara Town District Bhojpur ... Opposite Party s For the Petitioner s For the State For the OP No. 2 Mr. Ajay Kumar Thakur Advocate with Ms. Vaishnavi Singh Advocate Mr. Jharkhandi Upadhay APP Mr. Pankaj Kumar Sinha Advocate CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 02 09 2021 The matter has been heard via video conferencing. 2. Heard Mr. Ajay Kumar Thakur learned counsel along with Ms. Vaishnavi Singh learned counsel for the petitioner Mr. Jharkhandi Upadhyay learned Additional Public Prosecutorfor the State and Mr. Pankaj Kumar Sinha learned counsel for the opposite party no. 2. 3. The petitioner apprehends arrest in connection with Complaint Case No. 292 C of 2019 dated 03.05.2019 instituted under Sections 498 A of the Indian Penal Code. Patna High Court CR. MISC. No.339620 dt.02 09 2021 4. The petitioner is the husband of opposite party no 2 who is the complainant also. As the matter related to matrimonial dispute and there are two children born out of the wedlock the Court had made efforts for amicable settlement of the dispute. However despite the best efforts of learned counsel for the parties a mutually acceptable settlement did not emerge The Court also had the opportunity of hearing at length the petitioner and the opposite party no. 2 on two occasions 5. On the last date the matter was adjourned to enable the parties to take a final stand in the present case. 6. The informant because of her past experience has taken a stand that she and her children would not be safe in the matrimonial home and moreover she would not be mentally at ease and her life would be hell and thus she could not return to the matrimonial home. She has further submitted that despite there being a direction to pay certain amount from his salary to the opposite party no. 2 he has defaulted for many months. The petitioner on this point had submitted that due to some reason the amount which was to be directly cut from his salary and paid to the opposite party no. 2 was not done for some months but he undertook to make up to date payment of the entire outstanding dues within two weeks from today. Patna High Court CR. MISC. No.339620 dt.02 09 2021 7. In the aforesaid background the matter was adjourned so that the opposite party could think over the matter and take a definite stand. Today learned counsel for the opposite party no. 2 submitted that he would not oppose the prayer for anticipatory bail of the petitioner but conditions be put that he pays the amount which he is required to pay within time every 8. On a response from learned counsel for the petitioner a clear cut and categorical stand was taken that up to date arrears shall be cleared by 20th of this month and thereafter by the 10th of every successive month the amount shall be paid to the opposite party no. 2 by the petitioner either through direct transfer debit from his salary or by depositing it in the account of the opposite party no. 2. 9. Learned counsel for the opposite party no. 2 submitted that the Court may also clarify the situation inasmuch as the amount which is required to be paid by the petitioner every month to the opposite party no. 2 which is 35% of his salary and total emoluments is more than what has been stated in the petition. 10. Learned counsel for the petitioner submitted that as per the order no amount has been specified and only 35% of Patna High Court CR. MISC. No.339620 dt.02 09 2021 the total salary and emoluments of the petitioner are required to be paid to the opposite party no. 2 and thus the amount may differ but the order requiring payment of 35% of the salary and emoluments shall be strictly complied with 11. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties the Court is inclined to grant pre arrest bail to the petitioner 12. 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 concerned learned Judicial Magistrate 1st Class Bhojpur at Ara in Complaint Case No 292 C of 2019 subject to the conditions laid down in Section 438(2) of the Code of Criminal Procedure 1973 and furtherthat the petitioner and the bailors shall execute bond and give undertaking with regard to good behaviour of the petitioner that the petitioner shall cooperate with the Court and the police prosecution andthat the petitioner by 20th September 2021 shall clear all arrears of whatever he is required to pay in terms of the order of the Court below till Patna High Court CR. MISC. No.339620 dt.02 09 2021 August 2021 and thereafter by 10th of the successive month such payment shall be made by the petitioner to the opposite party no. 2 if not directly transmitted after cutting it from the salary and emoluments paid to the petitioner then it should be done by the petitioner himself but the deadline should be strictly adhered to. Any violation of the terms and conditions of the bonds or the undertaking or default in making payment as stipulated would lead to cancellation of the bail bonds of the 13. It shall also be open for the prosecution and the opposite party no. 2 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 petitioner 14. The petition stands disposed of in the (Ahsanuddin Amanullah J J. Alam

No restraining order for bank guarantee unless fraud is established: High Court of Delhi

When a party seeks for injunction from the court with respect to encashment of a bank guarantee, it must be able to present a prima facie case of fraud without which injunction can’t be granted. This was decided in the case of BSP – SHC vs.  Dedicated Freight Corridor Corporation Of India Limited And Anr. [O.M.P. (I) (COMM.) 53/2021] in the High Court of Delhi by Hon’ble Mr. Justice Vibhu Bakhru, The facts and circumstances mentioned are that the respondent is a Government of India Enterprise and it had issued a Notice Inviting Tender for construction of 2 Nos. Two Lane ROBs. The petitioner submitted its tender for the aforesaid works and was declared successful. The respondent issued a Letter of Acceptance after which the agreement dated 04.07.2016 was executed between the parties. In terms of the NIT, the petitioner submitted a performance bank guarantee in the sum of ₹2,08,86,500/- being 5% of the contract value. The petitioner states that in addition to the above, it also furnished a security deposit being 5% of the contract value. 4. The petitioner claims that it commenced the construction works and also provided bank guarantee in lieu of the security deposit. there has been delay in execution of the works . The petitioner claims that delay in execution of works is entirely for reasons attributable to respondent. The petitioner contends that invocation of the bank guarantees would cause irretrievable injustice and irreparable loss to the petitioner. The court said that it is well settled that the bank guarantees cannot be interdicted on account of contractual disputes between the parties. The grounds on which a bank guarantee can be interdicted are restricted. The Courts would interfere and injunct invocation/encashment of bank guarantees only in exceptional cases of egregious fraud and irretrievable injustice. The court refereed to Dwarikesh Sugar Industries Ltd. V. Prem Heavy Engineering Works (P) Ltd. And Anr.:[AIR 1997 SC 2477], where the Supreme Court held as under: Numerous decisions of this Court rendered over a span of nearly two decades have laid down and reiterated the principles which the courts must apply while considering the question whether to grant an injunction which has the effect of restraining the encashment of a bank guarantee. The law relating to invocation of such bank guarantees is by now well settled. When in the course of commercial dealings an unconditional bank guarantee is given or accepted, the beneficiary is entitled to realize such a bank O.M.P.(I)(COMM.) 53/2021 Page 9 of 12 guarantee in terms thereof irrespective of any pending disputes.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Judgment: 09 February 2021 O.M.P.(I)(COMM.) 53 2021 M S BSP SHCPetitioner Through: Mr Vishnu Mehra Advocate. DEDICATED FREIGHT CORRIDOR CORPORATION OF INDIA LIMITED AND ANR. Respondents HON BLE MR. JUSTICE VIBHU BAKHRU Hearing held through video conferencing] VIBHU BAKHRU J.The petitioner has filed the present petition under Section 9 of the Arbitration and Conciliation Act 1996inter alia praying as under: “i. In view of the above facts and circumstances mentioned hereinabove it is most respectfully prayed that the Hon ble Court may graciously be pleased to allow the present petition and restraint by way of injunction the Respondent No. 1 from invoking and encashing the following Bank Guarantees: O.M.P.(I)(COMM.) 53 2021 0767ILG004020 dated 14.08.2020 amounting to Rs. 1 59 88 000 issued by Respondent No. 2. ii) Bank Guarantee No. 0767ILG004220 dated 24.08.2020 amounting to Rs. 2 56 39 000 deposited in lieu of release of Security Deposit. iii) Bank Guarantee No. 0767ILG001519 dated 12.09.2019 amounting to Rs. 66 00 000 and Bank Guarantee No. 0767ILG001719 dated 27.09.2019 amounting to Rs. 48 87 569 deposited for the release of mobilization advance. Till the Till the Arbitral Award is passed andTill the enforcement of the award in accordance with Section 36 the Arbitration & Conciliation Act 1996 as amended ii. Hon ble Court may graciously be pleased restraint by way of injunction the Respondent No. 2 Bank from remitting the Following Bank guarantees to the Respondent No. 1: i)Performance bank Guarantee No. 0767ILG004020 dated 14.08.2020 amounting to Rs. 1 59 88 000 issued by Respondent No.2. ii) Bank Guarantee No. 0767ILG004220 dated 24.08.2020 amounting to Rs. 2 56 39 000 deposited in lieu of release of Security Deposit. iii) Bank Guarantee No. 0767ILG001519 dated 12.09.2019 amounting to Rs. 66 00 000 and Bank Guarantee No. 0767ILG001719 dated 27.09.2019 O.M.P.(I)(COMM.) 53 2021 amounting to Rs. 48 87 569 deposited for the release of mobilization advance. Till the Till the Arbitral Award is passed andTill the enforcement of the award in accordance with Section 36 the Arbitration & Conciliation Act 1996 as amended ” The respondent is a Government of India Enterprise and it had issued a Notice Inviting Tenderon 02.02.2016 for construction of 2 Nos. Two Lane ROBsin lieu of Level Crossing No. 104 and 108 at Km. 555 4 5 at Sirohi Road Yard & Km. 565 0 1 at Banas Yard of Madar Palanpur Section of Ajmer Division of North Western Railways. The said two Road Over Bridges are hereafter referred to as „ROB 104‟ and „ROB 108‟. The petitioner submitted its tender for the aforesaid works and was declared successful. The respondent issued a Letter of Acceptance LOA) dated 26.05.2016. The agreed contract value was fixed at ₹41 77 29 781.72 . Subsequently the agreement dated 04.07.2016 was executed between the parties. In terms of the NIT the petitioner submitted a performance bank guarantee in the sum of ₹2 08 86 500 being 5% of the contract value. The petitioner states that in addition to the above it also furnished a security deposit being 5% of the contract value. The petitioner claims that it commenced the construction works and also provided bank guarantee Bank Guarantee No. O.M.P.(I)(COMM.) 53 2021 each. 1002816BG000177) in lieu of the security deposit. The petitioner claims that it sought advance for mobilisation of its resources and a sum of ₹2 29 75 138 was released to the petitioner on its furnishing two bank guarantees in the sum of ₹1 14 87 569 The petitioner claims that it being conscious of its contractual obligations has kept the bank guarantees alive. The earlier performance bank guarantee issued by the State Bank of India was replaced by a bank guarantee furnished by Punjab National Bank Bank Guarantee No. 0767ILG004020 dated 14.08.2020). The said bank guarantee was valid till todayperformance bank guarantee No. 0767ILG004020 for a sum of ₹1 59 88 000 issued by Punjab National Bank respondent no. 2) bank guarantee No. 0767ILG004220 dated 24.08.2020 in the sum of ₹2 56 39 000 furnished in lieu of the security deposit bank guarantee no. 0767ILG001519 dated 12.09.2019 for a sum of ₹66 00 000 against mobilisation advance andbank guarantee no. 0767ILG001719 dated 27.09.2019 in the sum of ₹48 87 569 against release of mobilisation advance. Admittedly there has been delay in execution of the works O.M.P.(I)(COMM.) 53 2021 relating to ROB 104 and ROB 108. The petitioner claims that delay in execution of the works is entirely for the reasons attributable to respondent no.1. The petitioner claims that initially there was a delay in providing General Arrangement Drawings which according to the petitioner were finally furnished on 21.09.2016. The petitioner further claims that there were also delays on account of various hurdles such as shifting of overhead electricity lines shifting of level crossing arrangement for traffic diversion etc. In addition to the above the petitioner claims that there has been a significant delay as the respondent no.1 has not yet acquired the necessary land for construction of the ROB 104 and ROB 108. The petitioner also claims that there have been various modifications that were insisted upon by the respondent no.1 and that too delayed execution of the work as well. 8. Mr Mehra learned counsel appearing for the petitioner earnestly contends that respondent no.1 is solely responsible for the delay in execution of the works and respondent no. 1 has failed to acquire the land for the project which is a fundamental requirement for carrying on the works. He further submits that since there was no deficiency in performance of the contract on the part of the petitioner respondent no.1 had also extended the time for completion of the contact without levy of any liquidated damages. It is seen that by a letter dated 09.01.2020 the contract awarded O.M.P.(I)(COMM.) 53 2021 to the petitioner was extended till 31.03.2020 without levy of any penalty53 2021 a 48 hours notice in terms of Clause 62 of the Standard General Conditions of Contract putting the petitioner to notice that if it fails to make good progress the contract would be rescinded and the work would be completed without the petitioner‟s participation. It also put the petitioner to notice that its security deposit would be forfeited and the performance guarantee would be invoked. 14. The petitioner responded to the said notice by its letter dated 05.02.2021 inter alia asserting that it would complete the work of ROB 104 in the month of March 2021 and any precipitate steps by respondent no.1 would adversely impact the completion date. It also alleged that respondent no.1 had failed to hand over the entire land for completion of ROB 108. According to the petitioner sufficient number of labourers were working at the site. And the petitioner called upon respondent no.1 to recall its notice. 15. By a letter dated 06.02.2021 respondent no.1 terminated the contract with the petitioner alleging that the petitioner had failed to mobilise sufficient resources machinery for completing the works relating to ROB 104 and ROB 108. Respondent no.1 further alleged that the petitioner had not addressed the safety concerns as the Girders placed by it were in an unsafe condition since a considerable period of time and the RE wall earthwork had been not placed resulting in unsafe and an inconvenient condition. It is apparent from the above that disputes have arisen between the parties in connection with the contract. The petitioner contends O.M.P.(I)(COMM.) 53 2021 that invocation of the bank guarantees would cause irretrievable injustice and irreparable loss to the petitioner. It is not disputed by the learned counsel for the petitioner that the bank guarantees furnished by it are unconditional. The law relating to interdicting invocation and encashment of unconditional bank guarantees is well settled. In Dwarikesh Sugar Industries Ltd. V. Prem Heavy Engineering WorksLtd. And Anr.: AIR 1997 SC 2477 the Supreme Court held as under: “21. Numerous decisions of this Court rendered over a span of nearly two decades have laid down and reiterated the principles which the courts must apply while considering the question whether to grant an injunction which has the effect of restraining the encashment of a bank guarantee. We do not think it necessary to burden this judgment by referring to all of them. Some of the more recent pronouncements on this point where the earlier decisions have been considered and reiterated are Svenska Chrome1 SCC 502] Larsen & Toubro Ltd. v. Maharashtra SEB6 SCC 68] Hindustan Steel Workers Construction Ltd. v. G.S. Atwal & Co. Engineers) Ltd.6 SCC 76] and U.P. State Sugar Corpn. v. Sumac International Ltd.1 SCC 568] The general principle which has been laid down by this Court has been summarised in the case of U.P. State Sugar Corpn.1 SCC 568] as follows: Handelsbanken v. Indian “The law relating to invocation of such bank guarantees is by now well settled. When in the course of commercial dealings an unconditional bank guarantee beneficiary is entitled to realize such a bank is given or accepted O.M.P.(I)(COMM.) 53 2021 guarantee in terms thereof irrespective of any pending disputes. The bank giving such a guarantee is bound to honour it as per its terms irrespective of any dispute raised by its customer. The very purpose of giving such a bank guarantee would otherwise be defeated. The courts should therefore be slow in granting an injunction to restrain the realization of such a bank guarantee. The courts have carved out only two exceptions. A fraud in connection with such a bank guarantee would vitiate the very foundation of such a bank guarantee. Hence if there is such a fraud of which the beneficiary seeks to take the advantage he can be restrained from doing so. The second exception relates to cases where allowing the encashment of an unconditional bank guarantee would result in irretrievable harm or injustice to one of the parties concerned. Since in most cases payment of money under such a bank guarantee would adversely affect the bank and its customer at whose instance the guarantee is given the harm or injustice contemplated under this head must be of such an exceptional and irretrievable nature as would override the terms of the guarantee and the adverse effect of injunction on commercial dealings in the country.” such an Dealing with the question of fraud it has been held that fraud has to be an established fraud. The following observations of Sir John Donaldson M.R. in Bolivinter Oil SA v. Chase Manhattan Bank1 All ER 351 CA] are apposite: “… The wholly exceptional case where an injunction may be granted is where it is proved that the bank knows that any demand for payment already made or which may thereafter be made will clearly be fraudulent. But the evidence must be clear both as to the fact of fraud and as to the O.M.P.(I)(COMM.) 53 2021 bank s knowledge. It would certainly not normally be sufficient that this rests on the uncorroborated statement of the customer for irreparable damage can be done to a bank s credit in the relatively brief time which must elapse between the granting of such an injunction and an application by the bank to have it discharged.” It is also well settled that the bank guarantees cannot be interdicted on account of contractual disputes between the parties. In Hindustan Construction Co. Ltd. and Ors. v. State of Bihar and Ors.:8 SCC 436 the Supreme Court had observed that “a bank guarantee is the common mode of securing payment of money in commercial dealings as the beneficiary under the guarantee is entitled to realise the whole of the amount under that guarantee in terms thereof irrespective of any pending dispute between the person on whose behalf the guarantee was given and the beneficiary”. 19. The grounds on which a bank guarantee can be interdicted are Courts would invocation encashment of bank guarantees only in exceptional cases of egregious fraud and irretrievable injustice. In the present case a plain reading of the present petition does not establish a case of fraud on the part of respondent no.1. There is no averment that a fraud has been committed by respondent no.1. The only averment that seeks to setup a case of fraud reads as under: “It is additionally submitted that the threatened action is clearly fraudulent as the Respondent No. 1 is seeking to attach premium to its own lapses of not making available O.M.P.(I)(COMM.) 53 2021 the full land in respect of ROB no. 108 and providing the balance land for ROB 104 only in May 2019 and ignoring disruption of work due to Corona Virus Driven Nation wide Lockdown from 24.03.2020 till about June 2020 and resulting into migration of the Labour to their native places.” In U.P. Cooperative Federation Limited v. Singh Consultants and Engineers Ltd.: 1988 SCC 174 the Supreme Court had held as under: “The nature of the fraud that the Courts talk about is fraud of an “egregious nature as to vitiate the entire underlying transaction”. It is fraud of the beneficiary not the fraud of somebody else.” 22. Plainly the averments made by the petitioner do not disclose any case of fraud which would warrant interdicting the bank 23. Mr Mehra further submitted that the petitioner was resting its case on the ground that invoking the bank guarantee would result in irretrievable injustice and irreparable loss to the petitioner. In of Svenska Handelsbanken v. M s. Indian Charge Chrome and Ors.: 1 SCC 502 the Supreme Court had observed as under: “…there should be prima facie case of fraud and special equities in the form of preventing irretrievable injustice between the parties. Mere irretrievable injustice without O.M.P.(I)(COMM.) 53 2021 prima facie case of established fraud is of no consequence in restraining the encashment of bank guarantee.” 25. Thus the contention that the bank guarantees issued by the petitioner ought to be injuncted on the ground of irretrievable injustice as advanced by Mr Mehra is unmerited. Although the petitioner at one place has alleged that the threatened action of respondent no.1 is fraudulent. However there is no allegation that the contract entered into between the parties is vitiated by fraud. The petitioner‟s case is mainly founded on alleged breach of contract on the part of respondent no.1. 26. Merely asserting that an act of terminating the contract or invoking the bank guarantee is fraudulent without establishing a case of egregious fraud would be wholly insufficient to secure an order interdicting invocation encashment of a bank guarantee. In the facts of this case this Court is unable to accept that any of the grounds for interdicting the bank guarantee have been established. Accordingly the relief as sought for by the petitioner cannot be granted. In view of the above the petition is dismissed. Pending applications are also disposed of. FEBRUARY 09 2021 VIBHU BAKHRU J O.M.P.(I)(COMM.) 53 2021

Re-assessment of imported goods to be done through same officer who assessed initially: Supreme Court

If a particular imported good has been assessed once by an officer and cleared but requires a re-assessment then the same officer shall undertake it. A bench comprising of Hon’ble CJI, Bopanna J. and Ramasubramaniam J. delivered the judgment in the case M/S Canon India Private Limited v Commissioner of Customs [C. Appeal No.1827 OF 2018] surrounding exemption of duty of imported goods. The camera consignment arrived at Delhi for clearance where the importer requested the Deputy Commissioner of Customs for the first check on 21.3.2012. The Customs Authorities checked the goods on 24.3.2012. They compared the goods with the description given in the literature and took a decision to clear the goods on 24.3.2012, as being exempt from duty in terms of the Notification No.15/2012 which was issued on 17.3.2012. However, in 2014, a show-cause notice was under Section 28 (4) of the Customs Act, 1962 alleging that the Customs Authorities had been induced to clear the cameras by willful misstatement and suppression of facts about the cameras. In particular; that the cameras were capable of recording more than a single video sequence of fewer than 30 minutes. The impending question before the Court was whether the Directorate of Revenue Intelligence (DRI) had authority in law to issue a show-cause notice under Section 28(4) of the Act for recovery of duties allegedly not levied or paid when the goods have been cleared for import by a Deputy Commissioner of Customs who decided that the goods are exempted. The Court to probe deeper into the meaning of “proper officer” referred the case of Commissioner of Customs vs. Sayed Ali and Another [5 (2011) 3 SCC 537], wherein the jurisdictional area of proper officers were ascertained. The Court observed that “20. [..] it is manifest that only such a Customs Officer who has been assigned the specific functions of assessment and reassessment of duty in the jurisdictional area where the import concerned has been affected, by either the Board or the Commissioner of Customs, in terms of Section 2(34) of the Act is competent to issue a notice under section 28 of the Act.”

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.1827 OF 2018 M S CANON INDIA PRIVATE LIMITED …. APPELLANT(S COMMISSIONER OF CUSTOMS …. RESPONDENT(S CIVIL APPEAL NO. 1875 OF 2018 CIVIL APPEAL NO.1832 OF 2018 CIVIL APPEAL NO.3213 OF 2018 J U D G M E N T S.A. BOBDE CJI This batch of statutory appeals dated 19th December 2017 Vide the impugned order an exemption of basic customs duty accorded to the Digital Still Image Video Cameras imported by the Nikon India Pvt. Ltd Canon India Pvt. Ltd. Sony India Pvt. Ltd. and Samsung India Electronics Pvt. Ltd in terms of exemption Notification No. 20 2005 dated 01.03.2005came to be denied and the consequential confiscation of goods demand of interest and imposition of penalty as provided for under various sections of the Customs Act 1962 was upheld by the CESTAT Since the appeals involve common questions these are being decided together and for sake of convenience we shall be referring to the events which took place in the case The main issue is whether after clearance of the cameras on the basis that they were exempted from levy of basic Customs duty under Notification No.15 2012 the proceedings initiated by the Directorate of Revenue Intelligence for recovery of duty not paid under Section 28(4) of the Customs Act 1962 are valid in law Exemption Notification Exemption to Digital Still Image Video Cameras was issued on 1.3.2005 vide Notification No.25 2005 of the Customs Act 1962 1 alleging that the Customs Authorities had been induced to clear the cameras by wilful mis statement and suppression of facts about the cameras. In particular that the cameras were capable of recording more than a single video sequence of less than 30 minutes. In other words after one sequence of less than 30 minutes was recorded the camera had sufficient memoryto record more It is significant to note that while the decision to clear the goods for import because they were exempted from customs duties under Notification No.15 2012 was taken by Deputy Commissioner Appraisal Group Delhi Air Cargo 1 Section 28Where any duty has not beenor erroneously refunded or interest payable has not been paid part paid or erroneously refunded by reason of collusion or any wilful mis statement or suppression of facts by the importer or the exporter or the agent or employee of the importer or exporter the proper officer shall within five years from the relevant date serve notice on the person chargeable with duty or interest which has not beenor which has been so short levied or short paid or to whom the refund has erroneously been made requiring him to show cause why he should not pay the amount specified in the the show cause notice was issued by the Additional Director General Directorate of Revenue Intelligence. The question that arises is whether the Directorate of Revenue Intelligence had authority in law to issue a show cause notice under Section 28(4) of the Act for recovery of duties allegedly not levied or paid when the goods have been cleared for import by a Deputy Commissioner of Customs who decided that the goods are exempted. It is necessary that the answer must flow from the power conferred by the statute i.e. under Section 28(4) of the Act This Section empowers the recovery of duty not paid part paid or erroneously refunded by reason of collusion or any wilful mis statement or suppression of facts and confers the power of recovery on “the proper officer”. The obvious intention is to confer the power to recover such duties not on any proper officer but only on “the proper officer”. This Court in Consolidated Coffee Ltd. and Another vs Coffee Board Bangalore2 has held: “14. ...Secondly and more importantly the user of the definite article ‘the’ before the word ‘agreement’ is in our view very significant Parliament has not said ‘an agreement’ or ‘any 23 SCC 358 agreement’ for or in relation to such export and in the context the expression ‘the agreement’ would refer to that agreement which is implicit in the sale occasioning the export.” In Shri Ishar Alloy Steels Ltd. vs. Jayaswals Neco Ltd.3 has held: ’The’ is the word used before nouns with a specifying or particularising effect as opposed to the indefinite or generalizing force of ‘a’ or ‘an’. It determines what particular thing is meant that is what particular thing we are to assume to be meant. ‘The’ is always mentioned to denote a particular thing or a person.” There are only two articles ‘ait could have used the word ‘any’. Parliament has employed the article “the” not accidently but with the intention to designate the proper officer who had assessed the goods at the time of 33 SCC 609 clearance. It must be clarified that the proper officer need not be the very officer who cleared the goods but may be his successor in office or any other officer authorised to exercise the powers within the same office. In this case anyone authorised from the Appraisal Group. Assessment is a term which includes determination of the dutiability of any goods and the amount of duty payable with reference to inter alia exemption or concession of customs duty vide Section 2(c) of the Customs Act 19624. The nature of the power to recover the duty not paid or short paid after the goods have been assessed and cleared for import is broadly a power to review the earlier decision of assessment. Such a power is not inherent in any authority. Indeed it has been conferred by Section 28 and other related provisions. The power has been so conferred specifically on “the proper officer” which must necessarily mean the proper officer who in the first 4 Section 2. Definitions In this Act unless the context otherwise requires 2) “assessment” means determination of the dutiability of any goods and the amount of duty tax cess or any other sum so payable if any under this Act or under the Customs Tariff Act 1975(hereinafter referred to as the Customs Tariff Act) or under any other law for the time being in force with reference to a) … b) … c) exemption or concession of duty tax cess or any other sum consequent upon any notification issued therefor under this Act or under the Customs Tariff Act or under any other law for the time being in force instance assessed and cleared the goods i.e. the Deputy Commissioner Appraisal Group. Indeed this must be so because no fiscal statute has been shown to us where the power to re open assessment or recover duties which have escaped assessment has been conferred on an officer other than the officer of the rank of the officer who initially took the decision to assess the goods 13. Where the statute confers the same power to perform an act on different officers as in this case the two officers especially when they belong to different departments cannot exercise their powers in the same case. Where one officer has exercised his powers of assessment the power to order re assessment must also be exercised by the same officer or his successor and not by another officer of another department though he is designated to be an officer of the same rank. In our view this would result into an anarchical and unruly operation of a statute which is not contemplated by any canon of construction of statute It is well known that when a statute directs that the things be done in a certain way it must be done in that way alone. As in this case when the statute directs that “the proper officer” can determine duty not levied not paid it does not mean any proper officer but that proper officer alone. We find it completely impermissible to allow an officer who has not passed the original order of assessment to re open the assessment on the grounds that the duty was not paid not levied by the original officer who had decided to clear the goods and who was competent and authorised to make the assessment. The nature of the power conferred by Section 28to recover duties which have escaped assessment is in the nature of an administrative review of an act. The section must therefore be construed as conferring the power of such review on the same officer or his successor or any other officer who has been assigned the function of assessment In other words an officer who did the assessment could only undertake re assessmentis by the same authority and not by any superior authority such as Appellate or Revisional Authority. It is therefore clear to us that the Additional Director General of DRI was not “the” proper officer to exercise the power under Section 28(4 and the initiation of the recovery proceedings in the present case is without any jurisdiction and liable to be At this stage we must also examine whether the Additional Director General of the DRI who issued the recovery notice under Section 28(4) was even a proper officer. The Additional Director General can be considered to be a proper officer only if it is shown that he was a Customs officer under the Customs Act. In addition that he was entrusted with the functions of the proper officer under Section 6 of the Customs Act. The Additional Director General of the DRI can be considered to be a Customs officer only if he is shown to have been appointed as Customs officer under the Customs Act Shri Sanjay Jain learned Additional Solicitor General relied on a Notification No.17 2002 Customs dated 7.3.2002 to show all Additional Directors General of the DRI have been appointed as Commissioners of Customs. At the relevant time the Central Government was the appropriate authority to issue such a notification. This notification shows that all Additional Directors General mentioned in Columnare appointed as Commissioners of Customs The next step is to see whether an Additional Director General of the DRI who has been appointed as an officer of Customs under the notification dated 7.3.2002 has been entrusted with the functions under Section 28 as a proper officer under the Customs Act. In support of the contention that he has been so entrusted with the functions of a proper officer under Section 28 of the Customs Act Shri Sanjay Jain learned Additional Solicitor General relied on a Notification No.40 2012 dated 2.5.2012 issued by the Central Board of Excise and Customs. The notification confers various functions referred to in Columnof the notification under the Customs Act on officers referred to in Columnof section 2 of the Customs Act 1962the Central Board of Excise and Customs hereby assigns the officers and above the rank of officers mentioned in Columnof the Table below the functions as the proper officers in relation to the various sections of the Customs Act 1962 given in the corresponding entry in Column 3) of the said Table: Designation of 1. Commissioner of 2. Additional Commissioner or Commissioner or Commissioner of Customs and under Section of the Customs Act 1962 i) Section 33 i) Sub sectionSection 149 vi) Section 28 It appears that a Deputy Commissioner or Assistant Commissioner of Customs has been entrusted with the functions under Section 28 vide Sl. No.3 above. By reason of the fact that the functions are assigned to officers referred to in Columnand those officers above the rank of officers mentioned in Column the Commissioner of Customs would be included as an officer entitled to perform the function under Section 28 of the Act conferred on a Deputy Commissioner or Assistant Commissioner but the notification appears to be ill founded. The notification is purported to have been issued in exercise of powers under sub Section of Section 2 of the Customs Act. This section does not confer any powers on any authority to entrust any functions to officers. The sub Section is part of the definitions clause of the Act it merely defines a proper officer it reads as follows: “2. Definitions In this Act unless the context otherwise requires 34) ‘proper officer’ in relation to any functions to be performed under this Act means the officer of customs who is assigned those functions by the Board or the of the Customs Act. The notification is obviously invalid having been issued by an authority which had no power to do so in purported exercise of powers under a section which does not confer any such power In the above context it would be useful to refer to the decision of this Court in the case of Commissioner of Customs vs. Sayed Ali and Another5 wherein the proper officer in respect of the jurisdictional area was considered The consideration made is as hereunder: “16. It was submitted that in the instant case the import manifest and the bill of entry were filed before the Additional Collector of Customs Imports) Mumbai the bill of entry was duly assessed and the benefit of the exemption was extended subject to execution of a bond by the importer which was duly executed undertaking the obligation of export. The learned counsel argued that the function of the preventive staff is confined to goods which are not manifested as in respect of manifested goods where the bills of entry are to be filed the entire function of assessment clearance etc. is carried out by the appraising officers functioning under the Commissioner of CustomsWhen any duty has not been levied or has been short levied or erroneously refunded or when any interest payable has not been paid part paid or erroneously refunded the proper officer may a) in the case of any import made by any individual for his personal use or by Government or by any educational research 53 SCC 537 or charitable institution or hospital within one year b) in any other case within six months from the relevant date serve notice on the person chargeable with the duty or interest which has not been levied or charged or which has been so short levied or part paid or to whom the refund has erroneously been made requiring him to show cause why he should not pay the amount specified in the notice Provided that where any duty has not been levied or has been short levied or the interest has not been charged or has been part paid or the duty or interest has been erroneously refunded by reason of collusion or any wilful mis statement or suppression of facts by the importer or the exporter or the agent or employee of the importer or exporter the provisions of this sub section shall have effect as if for the words ‘one year’ and ‘six months’ the words ‘five years’ were substituted.” 18. It is plain from the provision that the ‘proper officer’ being subjectively satisfied on the basis of the material that may be with him that customs duty has not been levied or short levied or erroneously refunded on an import made by any individual for his personal use or by the Government or by any educational research or charitable institution or hospital within one year and in all other cases within six months from the relevant date may cause service of notice on the person chargeable requiring him to show cause why he should not pay the amount specified in the notice. It is evident that the notice under the said provision has to be issued by the ‘proper officer’ 19. Section 2(34) of the Act defines a ‘proper officer’ thus ‘2. Definitions. ‘proper officer’ in relation to any functions to be performed under this Act means the officer of customs who is assigned those functions by the Board or the Commissioner of Customs ’ It is clear from a mere look at the provision that only such officers of customs who have been assigned specific functions would be ‘proper officers’ in terms of Section 2(34) the Act Specific entrustment of function by either the Board or the Commissioner of Customs is therefore the governing test to determine whether an ‘officer of customs’ is the ‘proper 20. From a conjoint reading of Sections 2(34 and 28 of the Act it is manifest that only such a Customs Officer who has been assigned the specific functions of assessment and re assessment of duty in the jurisdictional area where the import concerned has been affected by either the Board or the Commissioner of Customs in terms of Section 2(34) of the Act is competent to issue notice undersection 28 of the Act. Any other reading of Section 28 would render the provisions of Section 2(34) of the Act otiose inasmuch as the test contemplated under Section 2(34) of the Act is that of specific conferment of such functions.” 23. We therefore hold that the entire proceeding in the present case initiated by the Additional Director General of the DRI by issuing show cause notices in all the matters before us are invalid without any authority of law and liable to be set aside and the ensuing demands are also set It is strictly not necessary to decide the question on limitation but we intend to do so since parties have elaborately relied on disclosures made before the Customs officer on that issue. The show cause notice was issued on 19.8.2014. Under Section 28(4) such a show cause notice must be issued within five years from the relevant date which means the date on which the goods were assessed and cleared in case the duty was not paid or short paid or erroneously refunded by reason of collusion or any wilful mis statement or suppression of facts. It is therefore necessary for us to examine whether there is suppression The case was presented for scrutiny of the Customs officers on 20.3.2012 along with the Bill of Entry and literature consisting of specifications of the cameras The Bill of Entry made a statement that these are Digital Still Image Video Camera packed for retail sale COOLPIX S4300 S2600 etc.). This was supported by literature which clearly stated that “… the single maximum recording time for a single movie is 29 minutes even when there is sufficient free space on the memory card for longer recording”. This meant that even if the camera could record more than 29 minutes when it had sufficient free spacethe maximum time for which it could record a single sequence was 29 minutes. In other words the camera could record more than one single sequence but not 30 minutes and more in a single sequence. It is obvious that the Deputy Commissioner took the view that the camera complied with the requirement of exemption i.e. it could only record up to less than 30 minutes in a single sequence. At this juncture it is not relevant to see whether the Deputy Commissioner was right or not in taking this decision to clear the goods as exempted goods. What is important is to see whether the importers made any wilful mis statement or suppression of facts and induced the delivery of goods. It is pertinent to note that the importer had asked for a first check and had shown the cameras and the cameras were offered on 20.3.2012 along with Bill of Entry and literature detailing specifications of models. The camera could have been operated to see the length of time of the single sequence and whether recording of the single sequence exhausts the total memory of the camera including extended memory) and whether the cameras were eligible for exemption. It is difficult in such circumstances to infer that there was any wilful mis statement of facts. In these circumstances it must therefore follow that the extended period of limitation of five years was not available to any authority to re open under Section 28(4 In this view of the matter we consider it unnecessary to answer the issue whether the cameras that were cleared on the basis that they were exempted from customs duty under Exemption Notification No.15 2012 were in fact eligible for the exemption or not. The goods must be taken to have been validly cleared by the Customs officer. 30. We might note that cameras with similar specifications have been treated as exempted under the Explanatory Note to the Combined Nomenclature of the European communities. It is important to add that the same cameras have been considered to be eligible for exemption before 17.03.2012 and after 30.04.2015 under the exemption Notifications issued under the Customs Act read with Chapter 84 & 85of Customs Tariff Act 1975 In the result these appeals are allowed. The common order dated 19.12.2017 passed by the CESTAT New Delhi in Customs Appeal Nos. 50098 50099 50100 and 50280 2017 is set aside. Consequently the impugned demand notices issued against all the three appellants herein are also set aside Parties to bear their own costs. [S. A. BOBDE [A. S. BOPANNA [V. RAMASUBRAMANIAN MARCH 9 2021

Seigniorage fees that have been deducted from another bill owed to the lessee cannot be demanded again: Telangana High Court

If the lessor has already deducted seigniore fees from another bill owed to the lessee, he cannot demand for the fees to be paid again. The order passed by a Telangana High Court bench of Justice A. Abhishek Reddy on 3rd June 2021 in B. Chandulal Naik v. State of Telangana [Writ Petition No: 22233 of 2020] dealt with this issue. Chandulal Naik, the petitioner had been granted a ten year lease for the excavation of metal and stone from a four hectare area in Nagireddypalli Village by the deputy director of mines and geology, Hyderabad. The petitioner had established a metal crusher unit at the quarry and had been given a contract for the widening of two-lane roads of a particular section of the National Highway in Telangana, the contract included the supply of numerous construction materials for the road widening. On 11th January 2019, the additional director of mines and geology who is the 3rd respondent, inspected the quarry without any intimation and furthermore issued three notices for failing to submit documentary evidence of excavation, failing to obtain permits for the dispatch of materials and for failing to maintain proper records of dispatch and production of materials, furthermore he also asked the petitioner to pay the seigniorage fee for the leasing of the quarry. The director of mines and geology, who is the 2nd respondent, passed an order prohibiting the petitioner and from quarry activities without giving any notice and based solely on the third respondent’s inspection report. As a result of this, the petitioner filed a revision before the principal secretary of the Mines and Industries Department, who is the first respondent in this case. The petitioner contended that the seigniorage fee was already being reduced from the bills since he was supplying materials for the state government’s work, however ignoring this explanation, the third respondent directed the petitioner to remit the normal seigniorage fee in addition to a penalty at 5 times and 10 times for quantity excavated and material dispatched respectively. The first respondent, however, brought down the penalty charges from 5 times to 1 time for excavation and from 10 times to 2 times for the materials dispatched. The court found that once the normal seigniorage fee has been deducted from the contractor’s bills by the concerned department, imposing the same seigniorage fee again would be unwarranted, arbitrary and in fact illegal. However the bench also stated that it is undeniably the responsibility of the lessee alone to ensure that no unauthorised quarrying or transportation of materials take place from the leased area and hence the court had to reason to revoke the penalties imposed for the same.

B.Chandulal Naik vs State Of Telangana on 2 June 2021 Telangana High Court B.Chandulal Naik vs State Of Telangana on 2 June 2021 Bench: A.Abhishek Reddy THE HON BLE SRI JUSTICE A.ABHISHEK REDDY WRIT PETITION No. 22233 OF 2020 In this writ petition the petitioner challenges the prohibitory orders dated 17.01.2019 passed by the Director of Mines and Geology the respondent No.2 consequential demand notice dated 11.03.2019 issued by the Assistant Director of Mines and Geology Tandur Vikarabad District respondent No. 3 and the revisional orders dated 15.04.2019 passed by the Principal Secretary Mines and Industries Department respondent No. 1 The petitioner was granted quarry lease for excavation of stone & metal over an extent of Ac.4.00 hectares in survey No. 62 of Nagireddypalli Village Bomraspet Mandal Mahabubnagar District for a period of ten years by the Deputy Director of Mines and Geology Hyderabad vide proceedings dated 31.12.2015. That apart the petitioner has also established a metal crusher unit in Sy. No. 272 situated at Chowdarpally Village Bomraspet Mandal in the name and style of M s. Sri Sai Mining and Contractors. M s. SRR SRKwhich was executing the contract work of widening of two lane road from kilometers 59.500 to kilometers 132.033 of Manneguda Ravulapally Section of NH 163in the state of Telangana on EPC mode had entered into an agreement with M s. Sri Sai Mining and Contractors for supply of road metal such as dust GSB WMM for widening of road. M s. SRR SRKthrough their letter dated 4.1.2019 informed the respondent No. 3 that M s. Sri Sai Mining and Contractors a crusher unithas supplied GSB wet mix and aggregate material to their site for widening of two lane road with paved shoulders from kilometers 59.500 to kilometers 132.033 of Manneguda Ravulapally Section of NH 163 and also furnished the monthly wise particulars of total quantity used by them and supplied by the petitioner. It has further informed that the royalties for the said qauantities has been directly deducted by the Superintendent EngineerNational Highways Circle and will be credited to the State exchequer. In total the Executive EngineerNH Division No. 1 Hyderabad credited an amount of Rs.4 17 46 164 towards seigniorage charges to the exchequer While so on 11.01.2019 the respondent No. 3 inspected the quarry of the petitioner without any intimation and issued notice dated 11.01.2019 directing the petitioner to submit his explanation within a period of seven days thereof forfailing to submit documentary evidence during inspection for having excavated the raw material which is a violation of Rule 26(2) of TSMMC Rules 1966 failing to obtain permits for dispatch of mineral from the Assistant Director of Mines Geology which is a violation of Rule 34 of TSMMC Rules 1966 andfailing to maintain proper and accurate records of production and dispatch of minerals. The petitioner has submitted his explanation to the respondent No. 3 on 24.01.2019 stating that the seigniorage fee was already deducted by the contractor from the bills since he supplied mineral for execution of Government works. Even before passing of the orders on the said explanation the respondent No. 2 solely basing on the inspection report of respondent No. 3 and without issuing any notice to the petitioner Indian Kanoon B.Chandulal Naik vs State Of Telangana on 2 June 2021 had passed prohibitory orders dated 17.01.2019 prohibiting the petitioner from the quarry operations until further orders. Aggrieved thereby the petitioner filed a revision before the respondent No. 1 on 13.02.2019. During the interregnum period the respondent No. 3 without passing any orders on the explanation submitted by the petitioner on 24.01.2019 had issued another show cause notice on 31.01.2019 to which the petitioner had again submitted an explanation on 18.02.2019. Without considering the said explanation the respondent No.3 had issued the demand notice dated 11.03.2019 directing the petitioner to remit an amount of Rs.1 76 46 900 towards normal seigniorage fee in addition to penalty at 5 times & 10 times in respect of the quantity of excavated and dispatched mineral within the leased area and outside the leased area respectively mainly on the ground that the petitioner had not submitted any documentary evidence with regard to excess quantity of raw material dispatched from the quarry lease. When the petitioner was about to file an appeal against the demand notice dated 11.03.2019 the respondent No. 1 has disposed of the revision filed by the petitioner on 13.02.2019 vide order dated 15.04.2019 modifying the penalty to that of collection of normal seigniorage fee along with one time penalty for the quantity for which prior permission was not taken and to collect normal seigniorage fee along with two times penalty for the quantity excavated dispatched outside the leased area. Questioning the orders passed by respondent Nos. 1 to 3 referred to above the present writ petition is filed The respondent No. 3 has filed a counter affidavit denying the material allegations made in the writ petition. It is stated that during the inspection caused by respondent No.3 the petitioner was found to be carrying on quarry operations both within and outside the leased area and the same amounts to violation of rules made under TSMMC Rules 1966. It is further stated that the explanation of the petitioner for the quantities excavated outside the leased area by the local wadderas and villagers is untenable as the lessee himself shall take the responsibility for any unauthorized quarrying of stone and metal in the vicinity of the leased area and more particularly from the leased area itself. As the explanation submitted by the petitioner was found to be untenable the impugned demand notice was issued by respondent No.3 in terms of Rule 26read with Rule 34(2) of TSMMC Rules 1966. As the petitioner failed to give proper explanation and furnish the required documentary evidence for the breaches pointed out in the notice appropriate action was initiated against the petitioner. It is averred that only after affording personal opportunity of hearing to the petitioner the respondent No. 1 has disposed of the revision reducing the penaltyfrom five times to one time in respect of the quantities excavated within the leased area andfrom ten times to two times in addition to the normal seigniorage fee. Hence the writ petition is liable to be dismissed Heard the learned counsel for the petitioner and the learned Government Pleader for Mines Geology for the respondents. Perused the entire material on record As seen from the record the petitioner was granted lease for stone and metal excavation for a period of ten years vide proceedings dated 31.12.2015. While the petitioner was in the process of supplying GSB wet mix and aggregate material to M s. SSR SRKthe notice dated 11.01.2019 came to be issued by the respondent No. 3 directing the petitioner to submit his explanation for the lapses and irregularities pointed out therein with regard to excavation of mineral in violation of provisions of Rule 26(2) of TSMMC Rules 1966 and the actual transit and dispatch of minerals followed by Indian Kanoon B.Chandulal Naik vs State Of Telangana on 2 June 2021 prohibitory orders dated 17.01.2019 passed by the respondent No 2. Although the petitioner filed his explanation on 24.01.2019 a final demand notice dated 31.01.2019 was issued by the respondent No. 3 demanding the petitioner to pay the determined penalty. Again the petitioner submitted another explanation on 18.02.2019 apart from filing a revision before the respondent No 1 on 13.02.2019. However the respondent No. 3 has issued another demand notice on 11.03.2019 directing the petitioner to remit an amount of Rs.1 76 46 900 being the normal seigniorage fee in addition to penalty at 5 times & 10 times in respect of the quantity of excavated and dispatched mineral within the leased area and outside the leased area respectively. In the meanwhile the respondent No. 1 disposed of the revision on 15.04.2019 with a direction to collect normal seigniorage fee along with one time penalty for the quantities excavated within the leased area and two times penalty along with normal seigniorage fee for the quantities excavated outside the leased area. In the orders dated 15.04.2019 except stating that the petitioner has not taken any prior permission the other contentions that have been raised by the petitioner have not been dealt with by the respondent No. 1 Admittedly the petitioner has brought to the notice of the authorities that he has entered into an agreement with M s. SSR SRKfor supplying GSB wet mix and aggregate material. Petitioner in his reply representation dated 23.01.2019 submitted to the respondent No. 2 clearly stated that the contractor had deducted the seigniorage fees and remitted to the exchequer. The said version of the petitioner is further supported by the letter dated 09.02.2019 addressed by the Executive EngineerN.H. Division Hyderabad to the respondent No. 3 wherein it is stated that the metal extracted and transported by Sri Sai Miningis utilized by the contractor M s. SSR SRKand in respect of the same an amount of Rs.40 17 973 has been deducted from the bills towards seigniorage charges and the same will be sent to the respondent No. 3 in the form of demand draft. The said fact has not been disputed or denied by the respondents in their counter The impugned order as well as the demand notices are sought to be supported by the respondents on two grounds:that the petitioner has failed to obtain the provision of seigniorage fee exempted transit forms which was a prior permission needed to be obtained from the respondent No. 3 before dispatching the quarry metal stone to the contractor andthat the petitioner has carried on the quarrying operations outside the leased area to a quantity of 4972 cbm which was detected by the inspecting authority. While disposing of the revision vide orders dated 15.04.2019 except stating that the petitioner has not obtained prior permission the respondent No. 1 has not adverted to the fact that that the normal seigniorage fee has already been deducted from the contractor and credited to the exchequer. When the normal seigniorage fee has already been deducted from the contractor and remitted to the concerned department by the officials of Roads & Buildings in respect of supply of road metal by the petitioner to the contractor M s. SSR SRKfor laying of road it is not understandable as to how the petitioner can be levied the normal seigniorage fee once again. It is not even the case of the respondents that there is a dispute with regard to the quantum of minerals stones that has been supplied by the petitioner to the contractor. The petitioner has brought the attention of this Court to the order passed by the respondent No. 1 dated 19.01.2019. By the said order the revision filed by M s. N. Ramachandra Reddy and another dated 30.07.2018 under similar set of facts and circumstances was allowed by the respondent No. 1. On perusal of the Indian Kanoon B.Chandulal Naik vs State Of Telangana on 2 June 2021 facts therein this Court does not find any difference between the revision filed by the present petitioner and the revision filed by said M. Ramachandra Reddy and another dated 30.07.2018 which was allowed by the respondent No. 1 on 19.01.2019 That insofar as the allegation that there is a procedural lapse is concerned this Court for the reasons stated above is of the opinion that the prohibitory orders dated 17.01.2019 issued by the respondent No. 2 are too harsh in nature and therefore the same are liable to be set aside. Insofar as the order dated 15.04.2019 passed by the revisional authority i.e. respondent No. 1 in reducing the penalty from five times to one time in addition to the normal seigniorage fee for the quantity for which prior permission was not taken and reducing the penalty from ten times to two times for the quantity excavated outside the leased area is concerned the imposition of normal seigniorage fee on the quantity which was supplied to the contractor once again is not warranted for the reason that the officials of Roads & Buildings have already deducted the same from the contractor and remitted to the exchequer. Once the said normal seigniorage fee has already been deducted by the Roads and Buildings department from the bills of the contractor and remitted to the concerned department such imposition of normal seigniorage fee once again is illegal unwarranted and arbitrary and therefore the same is set aside. Insofar as imposition of one time penalty in respect of the quantity for which prior permission was not taken is concerned this Court is of the opinion that the petitioner knowing fully well that he has to obtain necessary dispatch permits before dispatching the metal ought to have obtained permission i.e. provision of seigniorage fee exempted transit forms prior to the dispatch of material to the contractor. Therefore this Court is not inclined to interfere with the order of respondent No. 1 dated 15.04.2019 to the extent it imposes one time penalty on the petitioner and the same is confirmed. With regard the imposition of normal seigniorage fee plus two times penalty in respect of the quantity excavated outside the leased area is concerned considering the explanation submitted by the petitioner that the area pit pointed out by the authorities during the inspection is by virtue of handiwork of local vadderas and villagers the authorities have rightly recorded the finding that the lessee himself has to take responsibility for any unauthorized quarrying of stone & metal in the vicinity of the leased area. Therefore this Court is not inclined to interfere with the imposition of two times penalty in respect of the quantity excavated outside the leased area and the same is also confirmed Accordingly the writ petition is partly allowed. The prohibitory order dated 17.01.2019 passed by the respondent No. 2 is set aside. The order dated 15.04.2019 passed by respondent No. 1 insofar it directs the petitioner to pay the normal seigniorage fee on the quantity of mineral within the leased area is also set aside. The petitioner shall pay the penalties i.e. one time penalty for the quantity excavated and transportedwithin the leased area for which prior permission was not obtained and normal seigniorage fee plus two times penalty for the quantity excavated and transportedoutside the leased area as imposed by respondent No. 1 within a period of four weeks from the date of receipt of a copy of this order. In case the petitioner fails to pay the penalties within the stipulated time the respondents are free to take necessary steps to recover the Miscellaneous petitions pending if any shall stand closed Indian Kanoon ________________________ A.ABHISHEK REDDY J Date: 2nd June 2021 Tsr B.Chandulal Naik vs State Of Telangana on 2 June 2021 Indian Kanoon

If a criminal proceeding is based on mala fides, or the proceeding is maliciously instituted with an ulterior motive: High Court of Sikkim

If the allegations made in the FIR/complaint and the evidence collected in support of the same do not disclose the commission of any offence and do not build any case against the accused and the same issue was held in the judgement passed by a single bench HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE. In the matter – Mr Rinchen Tamang And Another V/s State of Sikkim. [Crl. M.C. No. 07 of 2021] This petition under section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.) has been filed by 12 petitioners seeking the annulment of First Information Report (FIR) No. 237/2018 dated 09.12.2018 registered under section 341, 147, 149, 324, 326 of the Indian Penal Code, 1860 (IPC) against the petitioner nos. 2, 4, 5 and other unknown accused persons on a complaint by petitioner nos. 8 to 12 (jointly referred to for convenience as the complainants). Ms Rachhitta Rai, learned counsel for the petitioners relied upon the judgment of the Supreme Court in Narinder Singh vs. the State of Punjab1; State of Madhya Pradesh vs. Laxmi Narayan2 and Satish Sharma vs. State (NCT of Delhi)3 and submitted that in view of the compromise entered between the complainants and the accused persons the FIR and the pending criminal proceedings may be quashed in exercise of this court’s inherent power under section 482 Cr.P.C. It was submitted that the accused persons are young people who have just started out with their lives. They are either employed in the Government, private enterprise or are doing their own business to make a living. None of them is habitual offenders and this is the first incident in which they have been alleged to have committed any offence. The accused person deeply regret the incident and if this court would allow the bona fide compromise to bury their differences with the complainants they would never involve themselves in any activity which would bring disrepute. The court perused the facts and arguments presented in the case the quashing of the criminal proceedings may advance peace, harmony, and fellowship amongst them. In the totality of the facts and circumstances of the case, keeping in mind that handing out punishment is not the sole form of delivering justice and societal method of applying laws evenly is always subject to lawful exceptions, this court is of the considered view that discretion would be a better exercise in allowing the compromise to bury the difference between them. Click here to read the judgment Judgment reviewed by Sakshi Mishra   Click here to read the judgment Judgment reviewed by Sakshi Mishra  

Crl. M.C. No. 021 Rinchen Tamang & Ors. Vs. State of Sikkim THE HIGH COURT OF SIKKIM: GANGTOK Criminal Jurisdiction) SINGLE BENCH: HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN JUDGE Crl. M.C. No. 021 S o Shri Man Bahadur Biswakarma R o Tadong East Sikkim. 1. Mr. Rinchen Tamang S o Shri M. B. Tamang R o Majitar Rangpo East Sikkim. 2. Mr. Naseeb Tamang S o Shri M.S. Tamang R o Nimtar 32 No. East Sikkim. 3. Mr. Sandeep Biswakarma 4. Mr. Sandesh Rai S o J. B. Rai R o Lall Bazar Gangtok East Sikkim. S o Shri Dawa Tamang R o Lingding East Sikkim. 5. Mr. Sushil Tamang 6. Mr. Ram Tamang S o Shri Tempa Tamang R o Lall Bazaar Gangtok East Sikkim. S o Shri Man Bahadur Rai R o Lumsey East Sikkim. 7. Mr. Bhupen Rai 8. Mr. Karma Tashi Bhutia 9. Mr. Sonam Dorjee Bhutia S o Shri Thamtu Bhutia R o Upper Syari Gangtok East Sikkim. S o Late Tshering Pintso Bhutia R o Lingding East Sikkim. 10. Mr. Sangay Yusur Bhutia S o Late Tshering Topgay Bhutia R o Dicheling East Sikkim. 2 Crl. M.C. No. 021 Rinchen Tamang & Ors. Vs. State of Sikkim 11. Mr. Karma Mingyur Bhutia S o Late Tshering Topgay Bhutia R o Dicheling East Sikkim. 12. Mr. Jigmee Tseten Bhutia S o Shri Tashi Chopel Bhutia R o Dicheling East Sikkim. ….. Petitioners State of Sikkim .... Respondent Application under section 482 of the Code of Criminal Procedure 1973. Ms. Rachhitta Rai Advocate for the Petitioners. Mr. Yadev Sharma Additional Public Prosecutor and Mr. Sujan Sunwar Assistant Public Prosecutor for the State Date of hearing : 17.02.2022 & 21.02.2022 Date of Order : 23.02.2022 O R D E R Bhaskar Raj Pradhan J. This petition under section 482 of the Code of Criminal Procedure 1973 has been filed by 12 petitioners seeking the annulment of First Information Report No. 237 2018 dated 09.12.2018 registered under section 341 147 149 324 326 of the Indian Penal Code 1860 against the petitioner nos. 2 4 5 and other unknown accused persons on a complaint by petitioner nos. 8 to 126 SCC 466 25 SCC 688 315 SCC 344 5 Crl. M.C. No. 021 Rinchen Tamang & Ors. Vs. State of Sikkim 4. Mr. Yadev Sharma learned Additional Public Prosecutor submits that looking at the totality of the alleged offences in the manner in which it was committed the State has no objection if the complainant and the accused person resolved their dispute amicably. In Gian Singh vs. State of Punjab4 the Supreme Court summarized the position with regard to the power of the High Court in quashing the criminal proceedings in exercise of inherent jurisdiction thus: “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 FIR may be exercised where the offender and the victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However before exercise of such power the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder rape dacoity etc. cannot be fittingly quashed even though the victim or victim s family and the offender have settled the dispute. Such offences are not private in nature and have a society. Similarly any compromise between the victim and the offender in relation to the offences under special statutes like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc. cannot provide for any basis for involving such quashing criminal proceedings offences. But overwhelmingly and predominatingly civil flavour 410 SCC 303 6 Crl. M.C. No. 021 Rinchen Tamang & Ors. Vs. State of Sikkim stand on a different footing for the purposes of quashing particularly the offences arising from commercial financial mercantile civil partnership or such like transactions or the offences arising out of matrimony relating to dowry etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases the High Court may quash the criminal proceedings if in its view because of the compromise between the offender and the victim the possibility of conviction is remote and bleak and continuation of the criminal case would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and the wrongdoer and whether to secure the ends of justice it is appropriate that the criminal case is put to an end and if the answer to the above question(s) is in the affirmative the High Court shall be well the criminal to quash “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: i) ends of justice or ii) to prevent abuse of the process of any While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives. In Narinder Singhthe Supreme Court laid down the following principles: 7 Crl. M.C. No. 021 Rinchen Tamang & Ors. Vs. State of Sikkim 29.3. Such a power is not to 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 the 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 hand those criminal cases having overwhelmingly and predominantly civil those arising out of character particularly matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves. or arising 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 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 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 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 offence based on the plea compounding 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 8 Crl. M.C. No. 021 Rinchen Tamang & Ors. Vs. State of Sikkim in harmony between them which may improve their future relationship. infancy stage 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 is because of the proceedings investigation. It 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 the High Court can show benevolence in exercising its powers favourably but 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 exercising its power under Section 482 of the Code as in such cases the trial court would be in a position to decide the case finally on merits and to come to a conclusion as to whether the offence under Section 307 IPC is committed or not. Similarly in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and therefore there is no question of sparing a convict found guilty of such a crime.” the High Court should refrain In Yogendra Yadav vs. State of Jharkhand5 the Supreme Court held: “4. Now the question before this Court is whether this Court can compound the offences under Sections 326 and 307 IPC which are non compoundable Needless to say that offences which are non compoundable cannot be compounded by the court. Courts draw the power of compounding offences from Section 320 of the Code. The said provision has to be strictly Singh v. State of Punjab9 SCC 653 9 Crl. M.C. No. 021 Rinchen Tamang & Ors. Vs. State of Sikkim Punjab 10 SCC 303 : 4 SCC 1188 :1 SCC160 :2 SCC988] ). However in a given case the High Court can quash a criminal proceeding in exercise of its power under Section 482 of the Code having regard to the fact that the parties have amicably settled their disputes and the victim has no objection even though the offences are non compoundable. In which cases the High Court can exercise discretion to quash the proceedings will depend on facts and circumstances of each case. Offences which involve moral turpitude grave offences like rape murder etc. cannot be effaced by quashing the proceedings because that will have harmful effect on the society. Such offences cannot be said to be restricted to two individuals or two groups. If such offences are quashed it may send wrong signal to the society. However when the High Court is convinced that the offences are entirely personal in nature and therefore do not affect public peace or tranquillity and where it feels that quashing of such proceedings on account of compromise would bring about peace and would secure ends of justice it should not hesitate to quash them. In such cases lame prosecution. the prosecution becomes a Pursuing such a lame prosecution would be waste of time and energy. That will also unsettle the compromise and obstruct restoration of peace. 5. In Gian Singh10 SCC 303 : 4 SCC 1188 :1 SCC160 :2 SCC988] this Court has observed that: “58. Where the High Court quashes a criminal proceeding having regard to the fact that the dispute between the offender and the victim has been settled although the offences are not compoundable it does so as in its opinion continuation of criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored securing the ends of justice being the ultimate guiding factor.” Needless to say that the above observations are applicable to this Court also. 6. The learned counsel for the parties have requested this Court that the impugned order Yogendra Yadav v. State of Jharkhand Criminal MP No. 1915 of 2011 order dated 4 7 2012 be set aside as the High Court has not noticed the correct position in law in regard to quashing of criminal proceedings when there is a compromise. 8. In Laxmi Narayan the Supreme Court considered all its previous judgments on the point and held as under: Crl. M.C. No. 021 Rinchen Tamang & Ors. Vs. State of Sikkim Affidavit has been filed in this Court by complainant Anil Mandal who is Respondent 2 herein. In the affidavit he has stated that a compromise petition has been filed in the lower court. It is further stated that he and the appellants are neighbours that there is harmonious relationship between the two sides and that they are living peacefully. He has further stated that he does not want to contest the present appeal and he has no grievance against the appellants. The learned counsel for the parties have confirmed that the disputes between the parties are settled that parties are abiding by the compromise deed and living peacefully. They have urged that in the circumstances pending proceedings be quashed. The State of Jharkhand has further filed an affidavit opposing the compromise. The affidavit does not persuade us to reject the prayer made by the appellant and the second respondent for quashing of the proceedings.” “15.1. That the power conferred under Section 482 of the Code to quash the criminal proceedings for the non compoundable offences under Section 320 of the Code can be exercised having overwhelmingly and predominantly the civil those arising out of character particularly matrimonial relationship or family disputes and when the parties have resolved the entire dispute amongst themselves or arising 15.2. Such power is not to be exercised in those prosecutions which involved 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 15.3. Similarly such power is not to be exercised for the offences under the special statutes 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 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 11 Crl. M.C. No. 021 Rinchen Tamang & Ors. Vs. State of Sikkim therefore as crime against the society and not against the 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 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 framed and or during the trial. Such exercise is not permissible Therefore the ultimate conclusion in paras 29.6 and 29.7 of the decision of this Court in Narinder Singh6 SCC 466 : 3 SCC 54] 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 respect of non compoundable offences which are private in nature and do not have a serious impact on society on the ground that 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 complainant to enter into a compromise etc.” is filed charge is still under the matter In Ramgopal vs. State of Madhya Pradesh6 the Supreme Court dealt with a case in which the accused had been convicted for various offences under section 294 323 and 6 2021 SCC OnLine SC 834 12 Crl. M.C. No. 021 Rinchen Tamang & Ors. Vs. State of Sikkim 326 read with section 34 IPC. The appellant No.1 therein was alleged to have struck the complainant with a pharsa which resultantly cut off the little finger of his left hand. During the pendency of the appeal a compromise had been entered between the parties. The Supreme Court held: include such offences “11. True it is that offences which are „non compoundable‟ cannot be compounded by a criminal court in purported exercise of its powers under Section 320 Cr.P.C. Any such attempt by the court to alteration addition and would amount modification of Section 320 Cr.P.C which is the exclusive domain of Legislature. There is no patent or latent ambiguity in the language of Section 320 Cr.P.C. which may justify its wider interpretation the docket of out as non compoundable. consciously kept Nevertheless the limited jurisdiction to compound an offence within the framework of Section 320 Cr.P.C. is not an embargo against invoking inherent powers by the High Court vested in it under Section 482 Cr.P.C. The High Court keeping in view the peculiar facts and circumstances of a case and for justifiable reasons can press Section 482 Cr.P.C. in aid to prevent abuse of the process of any Court and or to secure the ends of justice. offences which 12. The High Court therefore having regard to the nature of the offence and the fact that parties have amicably settled their dispute and the victim has willingly consented to the nullification of criminal proceedings can quash such proceedings in exercise of its inherent powers under Section 482 Cr.P.C. even if the offences are non compoundable. indubitably evaluate the The High Court can consequential effects of the offence beyond the body of an individual and thereafter adopt a pragmatic approach to ensure that the felony even if goes unpunished does not tinker with or paralyze the very object of the administration of criminal justice 13. It appears to us that criminal proceedings involving non heinous offences or where offences are pre dominantly of a private nature can be annulled irrespective of the fact that trial has already been concluded or appeal stands dismissed against conviction. Handing out punishment is not the sole form of delivering justice. Societal method of 13 Crl. M.C. No. 021 Rinchen Tamang & Ors. Vs. State of Sikkim applying laws evenly is always subject to lawful exceptions. It goes without saying that the cases where compromise is struck post conviction the High Court ought to exercise such discretion with rectitude keeping the circumstances in view surrounding the incident the fashion in which the compromise has been arrived at and with due regard to the nature and seriousness of the offence besides the conduct of the accused before and after the incidence. The touchstone for exercising the extra ordinary power under Section 482 Cr.P.C. would be to secure the ends of justice. There can be no hard and fast line constricting the power of the High Court to do substantial justice. A restrictive construction of inherent powers under Section 482 Cr.P.C. may lead to rigid or specious justice which in the given facts and circumstances of a case may rather lead to grave injustice. On the other hand in cases where heinous offences have been proved against perpetrators no such benefit ought to be extended as cautiously observed by this Court in Narinder Singh v. State of Punjab3 and Laxmi NarayanJudge

If a licensee discovers in the course of audit or otherwise that a consumer has been short billed, the licensee is certainly entitled to raise a demand.: Supreme Court

So long as the consumer does not dispute the correctness of the claim made by the licensee that there was short assessment, it is not open to the consumer to claim that there was any deficiency as held by the Hon’ble Court through the bench lead by Justice V. Ramasubramanian, in the case of M/S Prem Cottex v. Uttar Haryana Bijli Vitran Nigam Ltd. & Ors. (CIVIL APPEAL NO.7235 OF 2009). The brief facts of the case are the Appellant is carrying on the business of manufacturing cotton yarn in Panipat, Haryana. He is having an L.S. connection, which got extended from 404.517 KW to 765 KW with C.D 449 KVA to 850 KVA, on 3.08.2006. After 3 years of the grant of extension, the appellant was served with a memo dated 11.09.2009, claiming that though the multiply factor is 10, it was wrongly recorded in the bills for the period from 3.08.2006 to 8/09 as 5 and that as a consequence there was short billing to the tune of Rs.1,35,06,585/. Aggrieved by the said notice, the appellant filed a consumer complaint before the National Commission, contending inter alia that the demand made by the respondents is the outcome of a glaring mistake and gross negligence on their part and that under Section 56 of the Electricity Act, 2003, no amount due from a customer is recoverable after a period of two years from the date on which it became first due. By an Order dated 1.10.2009, the National Commission dismissed the complaint on the ground that it is a case of “escaped assessment” and not a case of “deficiency in service”. Aggrieved by the said Order, the appellant is before the Hon’ble Court. The Hon’ble Court on 13.11.2009 granted an interim stay on the order and following on 19.08.2014, modified the stay by directing the appellant to pay to the first respondent herein, 50% of the demand amount within six weeks with a condition that in case the appellant succeeded, the said amount shall be refunded with interest @ 9% p.a. After a careful reading and examination of Section 56 of the Electricity Act, 2003 and the cases of Assistant Engineer (D1), Ajmer Vidyut Vitran Nigam limited and Anr. vs. Rahamatullah Khan and Mahabir Kishore & Ors. vs. State of Madhya Pradesh, the Hon’ble Court held, “So long as the consumer does not dispute the correctness of the claim made by the licensee that there was short assessment, it is not open to the consumer to claim that there was any deficiency. This is why, the National Commission, in the impugned order correctly points out that it is a case of “escaped assessment” and not “deficiency in service”. We are of the view that the National Commission was justified in rejecting the complaint and we find no reason to interfere with the Order of the National Commission. Accordingly, the appeal is dismissed. However, since the appellant has already paid 50% of the demand amount pursuant to an interim order passed by this Court on 19.08.2014, we give eight weeks’ time to the appellant to make payment of the balance amount.”

Challenging an Order of the National Consumer Disputes Redressal Commission dismissing service on the part of the licenseethe 2. We have heard Sh. K.C. Mittal learned counsel for the appellant and Mr. Arun Bhardwaj learned Additional Advocate General for the yarn in Panipat Haryana. The appellant is having a L.S. connection 3.08.2006 to 8 09 as 5 and that as a consequence there was short billing to the tune of Rs.1 35 06 585 ­. The notice called upon the appellant to pay the amount as demanded failing which certain 22.09.2009 and then filed a consumer complaint before the National Commission contending inter alia that the demand made by the their part and that under Section 56 of the Electricity Act 2003 no amount due from a customer is recoverable after a 7. While ordering notice in the above appeal on 13.11.2009 this Court granted interim stay of the impugned order. However on an appellant to pay to the first respondent herein 50% of the demand amount within six weeks with a condition that in case the appellant succeeded the said amount shall be refunded with interest @ 9% p.a Accordingly the appellant has paid a sum of Rs.54 03 293 ­ on 24.09.2014. The appellant claims to have already paid a sum of Rs.13 50 000 ­ on 9.10.2009 itself and this amount together with the Act and the exposition of law made by this Court in the decision in Assistant Engineer Ajmer Vidyut Vitran Nigam limited and Before we proceed to consider the statutory provision and the 4 SCC 650 the part of the respondents and that on the basis of the bill already raised they have charged their customers and that it may not be possible for them to go back to their customers with an additional 10. Section 56 of the Electricity Act 2003 reads as under:­ “56. Disconnection of supply in default of payment. ­ 1) Where any person neglects to pay any charge for to him the licensee or the generating company may after giving not less than fifteen clear days’ notice in writing to such person and without prejudice to his rights to recover such charge or other sum by suit cut off the supply of been supplied transmitted distributed or wheeled and may discontinue the supply until such charge or other sum reconnecting the supply are paid but no longer if such person deposits under protest ­ the electricity charges due from him for each month whichever is less pending disposal of any dispute between for the time being in force no sum due from any consumer such sum has been shown continuously as recoverable as In Rahamatullah Khan three issues arose for the consideration of this Court. They were what is the meaning to be 12. On the first two issues this Court held that though the liability that therefore electricity charges would become “first due” only Khan that “the period of limitation of two years would preclude the licensee from raising an additional or supplementary demand after the expiry of the period of limitation in the case of a of this Court in Mahabir Kishore & Ors. vs. State of Madhya 13. Despite holding that electricity charges would become first due 4 SCC 1 the period of limitation prescribed therein in the case of a mistake or bonafide error this Court came to the conclusion that what is barred under Section 56(2) is only the but is barred from taking recourse to disconnection of supply under 14. But a careful reading of Section 56(2) would show that the bar contained therein is not merely with respect to disconnection of supply but also with respect to recovery. If Sub­section of Section 56 is 15. Therefore the bar actually operates on two distinct rights of the licensee namely the right to recover andthe right to disconnect actually an exception to the law of limitation. Under the law of precise what is extinguished by the law of limitation is the remedy through a court of law and not a remedy available if any de hors through a court of law. However section 56(2) bars not merely the This is why we think that the second part of Section 56(2) is an 16. Be that as it may once it is held that the term “first due” would mean the date on which a bill is issued then the question of recourse to disconnection of supply would not arise. But Rahamatullah Khan says in the penultimate paragraph that “the It appears from the narration of facts in paragraph 2 of period from July­2009 to September­2011. Then a bill was raised on 25.05.2015 for the aforesaid period. Therefore the consumer successfully challenged the demand before the District Consumer a revision filed by the consumer set aside the order of the State 18. Eventually this Court disposed of the appeals preventing the licensee from taking recourse to disconnection of supply but giving of the additional demand. Therefore the decision in Rahamatullah 19. Even otherwise there are two things in this case which we cannot overlook. The first is that the question whether the raising of an additional demand by itself would tantamount to any deficiency in service clothing the consumer fora with a power to deal with the 20. The fora constituted under the Consumer Protection Act 1986 is defective goods or in relation to deficiency in services. The word “2(1)(g) “deficiency” means any fault imperfection of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a 21. The raising of an additional demand in the form of “short assessment notice” on the ground that in the bills raised during a particular period of time the multiply factor was wrongly mentioned there was any deficiency. This is why the National Commission in the impugned order correctly points out that it is a case of “escaped In fact even before going into the question of Section 56(2) the clear that the respondents cannot be held guilty of any deficiency in service and hence dismissal of the complaint by the National 23. Coming to the second aspect namely the impact of Sub­sectionis the negligence of any person to pay any charge for electricity. Sub­section starts with the words “where any person neglects to pay any charge for electricity or any some other than a 24. Sub­section uses the words “no sum due from any consumer under this Section”. Therefore the bar under Sub­section is Sub­section which deals specifically with the negligence on the than a charge for electricity. What is covered by section 56 under to short billing in the first instance and the rectification of the same their mistake may not fall within the mischief namely “no sum due 26. The matter can be examined from another angle as well. Sub­ section of Section 56 as discussed above deals with the disconnection of electric supply if any person “neglects to pay any charge for electricity”. The question of neglect to pay would arise only after a demand is raised by the licensee. If the demand is not raised there is no occasion for a consumer to neglect to pay any charge for respect to what is contained in any other law regarding the right to not raised any bill there can be no negligence on the part of the consumer to pay the bill and consequently the period of limitation prescribed under Sub­section will not start running. So long as limitation has not started running the bar for recovery and disconnection will not come into effect. Hence the decision in 27. Therefore we are of the view that the National Commission was dismissed. However since the appellant has already paid 50% of the

A person who did not deposit the amount given in the coordinate bench’s order is not entitled to more indulgence from this court: High Court of Uttarakhand

A person who has not made any progress in complying with an order passed by the coordinate bench of a High Court, cannot expect much more indulgence or relief from the Court in the same case. This was held in the judgement passed by a single member bench of the High Court of Uttarakhand consisting of Justice Manoj Kumar Tiwari in the case of Bhupal Ram v District Magistrate, Bageshwar & others [Writ Petition (M/S) No. 1378 of 2021] on the 20th of July 2021. The petitioner, Bhupal Ram took a loan of Rs. 4,00,000 from the bank in the year 2013 for commercial purposes. When the petitioner expressed his inability to meet some of the payments, the bank began proceedings for recovery of the outstanding loan amount. A recovery notice was issued against the petitioner on 29th June 2021 and the present petition has been filed asking the court to quash this recovery notice. Additionally the petitioner has also sought for the issue of a writ directing the respondent to allow him to deposit the due loan amount in instalments. He submitted that he was ready and willing to repay the entire outstanding amount to the bank, however needed some more time to arrange for the funds to do the same. The counsel appearing for the bank pointed out that the recovery citation impugned in the writ petition did not indicate the correct amount as it was issued pursuant to the recovery certificate that had been issued by the bank in 2016. As per the order passed on 9th November 2016 by the coordinate bench of this Court in WPMS No. 2997 of 2016, the petitioner was instructed to deposit an amount of Rs. 40,000 on or before 25th November 2016 with the bank and the remaining amount in twenty four equal monthly instalments. It was also added in this order that in the event of default of any of the instalments, the bank would be at liberty to initiate fresh proceedings against the petitioner. The counsel appearing for the bank submitted that despite the lenient order passed by the coordinate bench of the High Court, the petitioner has not even deposited the initial amount indicated in the order. Thus bank’s counsel concluded that the petitioner was not entitled to any relief at this point.

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL ON THE 20TH DAY OF JULY 2021 HON’BLE SHRI JUSTICE MANOJ KUMAR TIWARI Writ PetitionNo. 13721 Bhupal Ram By Mr. Ganesh Kandpal Advocate) District Magistrate Collector Bageshwar others By Mr. Rakesh Kunwar learned Additional C.S.C. for the State of Uttarakhand and Mr. M.S. Rawat Advocate for the Bank) By means of this writ petition petitioner has sought following reliefs: Issue a writ order or direction in the nature of certiorari and call for the record of the case and quash the impugned Annexure No. 1 to the writ petition) issued by respondent no. 2. ii) Issue a writ order or direction in the respondent to permit the petitioner to in the deposit the due installment. of mandamus directing loan amount Mr. Ganesh Kandpal learned counsel for the petitioner submits that petitioner is ready and willing to repay the entire outstanding loan amount to the Bank. However he needs some time for the purpose. 2 Mr. M.S. Rawat learned counsel appearing for the Bank submits that petitioner took a loan of ₹4.00 lakh in the year 2013 for commercial purpose. He further submits that due to persistent default by the petitioner Bank was constrained to proceed for recovery of the outstanding loan amount. He further submits that recovery citation impugned in the writ petition does not indicate the correct amount as the said recovery citation was issued pursuant to the recovery certificate issued by the Bank in the year Annexure No. 2 to the writ petition is an order dated 09.11.2016 passed by coordinate Bench of this Court in WPMS No. 2997 of 2016. Operative portion of the said judgment is reproduced below: “In view of the above writ petition stands disposed with the direction that if the petitioner deposits an amount of Rs.40 000 i.e. on or before 25.11.2016 with the bank the remaining amount shall be recovered from the petitioner in twenty four equal monthly installments the petitioner shall liable to pay the installment on or before 25th of every month spread over for a period of twenty four months. further directed installment shall also carry the cumulative interest. It is however made clear that in the event of default of any single payment of installment the bank shall be at liberty to initiate fresh process of recovery against the Mr. M.S. Rawat learned counsel appearing for the Bank submits that despite the indulgence given by coordinate Bench of this Court vide order dated 09.11.2016 petitioner has not complied with the order inasmuch as he had not deposited the amount as indicated in the order of this Court. Petitioner deposited only a small amount and 3 thereafter he never turned up to deposit the remaining amount. Thus according to him petitioner is not entitled to any relief at this stage. This Court submission made by learned counsel for the Bank. Since petitioner has not deposited the amount in terms of the order passed by coordinate Bench of this Court therefore he does not deserve any sympathy or indulgence of this Court. Admittedly petitioner loan therefore he is bound to repay the principal amount as well as the amount of accrued interest. Thus any interference with the recovery proceedings initiated against the petitioner by the bank would be dismissed. Accordingly writ petition fails and is hereby MANOJ KUMAR TIWARI J.)

Procedure infirmity: Letters Patent Appeal can be preferred: Patna High Court

Letter patent appeal (LPA) is an appeal by a petitioner against a decision of a single judge to another bench of the same court. Sometimes the decision of a single judge would also go wrong due to wrong facts as well as by law. This before going to Supreme Court, the petitioner has the option to move to another bench who’s having more than one judge and can apply for a letter patent appeal (LPA). A division bench comprising of the Chief Justice Sanjay Karol and Justice S. KUMAR adjudicating in the matter of Reeta Devi vs. The State of Bihar (Letters Patent Appeal no.238 of 2021 arising out of  Civil Writ Jurisdiction 7631 of 2020) dealt with an issue of whether the Letters Patent Appeal is maintainable or not? In the present case, a Letters Patent Appeal has been preferred against the judgment dated 22nd of February, 2021 titled Shiv Kumari Yadav Vs. The State of Bihar & Ors.  Background leading to the filling of an instant case is that for the Block Panchayat Samiti, Ramgarhwa, elections Ms. Rita Devi was elected as a pramukh, but she was removed in the year 2018 by a No-confidence Motion. After the  Smt. Shiv Kumari Yadav was appointed as the Pramukh, against whom also, a requisition for removal by way of a No-Confidence Motion was moved on 21st of August, 2020 by 15 members out of total 24 elected members, however, due to non-convening of a special meeting by the Pramukh and the Up-Pramukh, requisitionists fixed date of convening the special meeting on 5th of September, 2020, wherein, the Pramukh i.e. Smt. Shiv Kumari Yadav stood removed, which action was challenged by filing a writ petition as Shiv Kumari Yadav Vs. The State of Bihar & Ors. Before the declaration of judgement, according to the resolution dated 5th of September, 2020, Smt. Rita Devi, the present appellant, stood elected as the Pramukh. In the judgement  the judge allowed the writ petition and set aside the proceedings of 5th September 2020 and the notice of requisition dated 21st August 2020 but Smt. Shiv Kumari Yadav stood removed on the ground of procedural infirmity in convening the meeting by the requisitionists. The present strongly criticize the judgement. The court With the consent of the parties, pass the following order on the mutually agreeable terms: (a) The question of law as to whether the provisions of Section 46(4) can be invoked/applied with respect to proceedings under Section 44 of the Act, is left open;  (b) The rival contention of the parties that the stand taken by the writ-petitioner of being unwell, prompting her to seek deferment of the meeting and also non-receipt of the notice, are left open, for the judgment otherwise, on facts, needs to be set aside. Order accordingly.  (c) Parties agree that the resolution dated 21st of August, 2020 be put to vote in a special meeting which can be convened within next forty eight (48) hours; (d) A meeting for such purpose shall be held on 12th of June, 2021 at 1:30 P.M. at the headquarters of the Block Panchayat Samiti, Ramgarhwa; (e) The Block Development Officer-cum-Executive Officer, Block Panchayat Samiti, Ramgarhwa shall communicate the order to all the elected representatives of the said Panchayat Samiti; Patna High Court  (f) In fact, learned counsel appearing for the respective parties (in the Letters Patent Appeal/ Writ Petition) undertake to communicate the order to their clients during the course of the day; (g) Needless to add, the meeting is to be presided over by a person in terms of Section 44(3)(i).  (h) If the Up Pramukh fails or refuses to preside over the special meeting, it shall be open for 1/3rd of the directly elected members present in the meeting to choose a person for presiding over the meeting and carry out the proceedings of putting the motion to vote; (i) Needless to add, the voting shall take place only by way of a secret ballot and the meeting shall not be adjourned in any circumstances. (j) If the resolution expressing No Confidence against the writ-petitioner namely Smt. Shiv Kumari Yadav is carried through by way of a majority vote, the resultant consequence of outcome of the meeting shall follow, including restoration of Ms. Rita Devi as Pramukh; (k) All Authorities, including the Election Commissioner shall facilitate the entire process, ensuring democratic will and process prevail.

IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No. 2321 Civil Writ Jurisdiction Case No. 76320 Patna High Court LPA No.2321 dt.09 06 2021 Appearance : For the Appellant s Mr. P.K. Shahi Sr. Advocate Mr. S.S. Sinha Advocate Mr. Ajay Kumar Singh Advocate For the State Mr. P.N. Shahi AAG 6 For State Election Commission: Mr. Amit Shrivastava Advocate Mr. Mritunjay Kumar A.C. to AAG 6 Mr. Girish Pandey Advocate Mr. Sanjeev Nikesh Advocate For Private Respondent s: Mr. Mr. S.B.K. Manglam Advocate For the Respondents : Mr. Awnish Kumar Advocate Patna High Court LPA No.2321 dt.09 06 2021 Date : 09 06 2021 ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR ORAL JUDGMENT Per: HONOURABLE THE CHIEF JUSTICE) The proceedings of the Court are being conducted by Hon’ble the Chief Justice Hon’ble Judges through Video Conferencing from their residential offices residences. Also the Advocates and the Staffs joined through Video Conferencing The present Letters Patent Appeal has been preferred against the judgment dated 22nd of February 2021 passed by a learned Single Judge of this Court in C.W.J.C. No. 76320 titled as Shiv Kumari Yadav Vs. The State of Bihar & Ors. allowing the writ petition in terms of prayers thereof. 2. The background leading to the filing of the instant appeal being that for the Block Panchayat Samiti Ramgarhwa elections were held and one Ms. Rita Devi was elected as a Pramukh against whom a No Confidence Motion was moved leading to her removal in the year 2018 whereafter Smt. Shiv Kumari Yadav was appointed as the Pramukh against whom also a requisition for removal by way of a No Confidence Patna High Court LPA No.2321 dt.09 06 2021 Motion was moved on 21st of August 2020 by 15 members out of total 24 elected members however due to non convening of special meeting by the Pramukh and the Up Pramukh requisitionists fixed a date of convening the special meeting on 5th of September 2020 wherein the Pramukh i.e. Smt. Shiv Kumari Yadav stood removed which action was challenged by filing a writ petition being C.W.J.C. No. 7631 of 2020 titled as Shiv Kumari Yadav Vs. The State of Bihar & Ors. 3. Noticeably before the judgment came to be delivered by the learned Single Judge pursuant to the resolution dated 5th of September 2020 Smt. Rita Devi the present appellant stood elected as the Pramukh. 4. The learned Single Judge allowed the writ petition and set aside the proceedings dated 5th of September 2020 as also the notice of requisition dated 21st of August 2020 whereby petitioner namely Smt. Shiv Kumari Yadav stood removed on the ground of procedural infirmity in convening the meeting by the requisitionists. 5. Resultantly the present appeal assailing judgment passed by the learned Single Judge. Patna High Court LPA No.2321 dt.09 06 2021 6. After the matter was heard for some time with the consent of the parties we pass the following order on the mutually agreeable terms: a) The question of law as to whether the provisions of Section 46(4) can be invoked applied with respect to proceedings under Section 44 of the Act is left open b) The rival contention of the parties that the stand taken by the writ petitioner of being unwell prompting her to seek deferment of the meeting and also non receipt of the notice are left open for the judgment otherwise on facts needs to be set aside. Order accordingly. c) Parties agree that the resolution dated 21st of August 2020 be put to vote in a special meeting which can be convened within next forty eighthours d) A meeting for such purpose shall be held on 12th of June 2021 at 1:30 P.M. at the headquarters of the Block Panchayat Samiti Ramgarhwa e) The Block Development Officer cum Executive Officer Block Panchayat Samiti Ramgarhwa shall communicate the order to all the elected representatives of the said Panchayat Samiti Patna High Court LPA No.2321 dt.09 06 2021 f) In fact learned counsel appearing for the respective partiesundertake to communicate the order to their clients during the course of the day g) Needless to add the meeting is to be presided over by a person in terms of Section 44(3)(i). h) If the Up Pramukh fails or refuses to preside over the special meeting it shall be open for 1 3rd of the directly elected members present in the meeting to choose a person for presiding over the meeting and carry out the proceedings of putting the motion to vote i) Needless to add the voting shall take place only by way of a secret ballot and the meeting shall not be adjourned in any circumstances. j) If the resolution expressing No Confidence against the writ petitioner namely Smt. Shiv Kumari Yadav is carried through by way of a majority vote the resultant consequence of outcome of the meeting shall follow including restoration of Ms. Rita Devi as Pramukh k) All Authorities the Election Commissioner shall facilitate the entire process ensuring democratic will and process prevail. Patna High Court LPA No.2321 dt.09 06 2021 l) The impugned judgment dated 22nd of February 2021 passed in C.W.J.C. No. 76320 titled as Shiv Kumari Yadav Vs. The State of Bihar & Ors. stands modified to the extent indicated above. aforesaid terms. disposed of. 7. The Letters Patent Appeal stands disposed of in the 8. Interlocutory Application(s) if any shall stand (S. Kumar J) CAV DATE Uploading Date Transmission Date

An elected official cannot be permitted to be removed unceremoniously without following the procedure prescribed by law: Tripura High Court

The elected official is accountable to its electorate because he is being elected by a large number of voters. His removal has serious repercussions as he is removed from the post and declared disqualified to contest the elections for a further stipulated period, but it also takes away the right of the people of his constituency to be represented by him. Undoubtedly, the right to hold such a post is statutory and no person can claim any absolute or vested right to the post, but he cannot be removed without strictly adhering to the provisions provided by the legislature for his removal. The judgement was passed by the High Court of Tripura in the case of Shri Debasish Mazumder & Ors v. The State of Tripura & Ors [W.P.(C) No. 319 of 2020] by Single Bench consisting of Hon’ble Justice Mr Akil Kureshi & Justice S.G.Chattopadhyay. Petitioners are the elected members of Bokafa Panchayat Samiti in South Tripura District, have challenged the order passed by the District Magistrate and Collector of South Tripura District in purported exercise of powers under sub-section(3) of Section 76 of the Tripura Panchayats Act, 1993 declaring that the petitioners earned disqualification under clause(b) of sub-section(1) of Section 76 of the Act for voting in the Panchayat Samiti meeting contrary to the direction of the party. Learned counsel for the petitioners has raised the following contentions: i) There is no proof that no party whip containing the direction of the party whip was served on the petitioners at any point of time before the meeting. ii) Admittedly, Vice-President of Bokafa Panchayat Samiti presided over the said meeting who categorically stated in the counter affidavit submitted by him that no party whip was served on any of the elected members before the said meeting and no party whip was even read over to the elected members of the Panchayat Samiti in the meeting before the no-confidence motion was put to vote. Therefore, disqualification of the petitioners on the ground of violation of party whip is baseless and illegal. Learned Counsel appearing for the respondent has opposed the petition contending that “it is a clear case of defection for violation of party whip by the petitioners for which they incurred disqualification under Section 76 of the Tripura Panchayats Act, 1993.” It is contended by the learned counsel that the minutes of the meeting has confirmed that the party whip was read over to the petitioners. The party whip indicates that the elected members including the petitioners were asked to vote against the no-confidence motion which was brought for the removal of the elected Chairman of the said Panchayat Samiti. But they voted in favour of the no-confidence motion contrary to the direction of the party and thereby earned disqualification under Section 76(1)(b) of the Tripura Panchayats Act.

HIGH COURT OF TRIPURA W.P.(C) No. 3120 1. Shri Debasish Mazumder S O Sri Milan Chandra Mazumder resident of Shantir Bazar P.O. and P.S. Shantir Bazar District South Tripura. 2. Indrajit Das S O Late Braja Lal Das Resident of R.K. Ganj P.O. and P.S. Shantir Bazar District South Tripura. 3. Smt. Anita Reang Sri Ratan Reang resident of D C Nagar P.O. and P.S. Shantir Bazar District South Tripura. 4. Rajesh Reang S O Sri Surya Kumar Reang resident of East Bokafa Betaba Para) P.O. Bokafa P.O. and P.S. Shantir Bazar District South 5. Smti. Sujata Das wife of Sri Mithun Natta Resident of Betaga P.O. and P.S. Betaga District South Tripura. ..Petitioner(s). 1. The State of Tripura represented by the Secretary to the Panchayat Department Government of Tripura Secretariat Building New Capital Complex Agartala West Tripura. 2. District Magistrate and Collector South Tripura District Belonia. 3. District Panchayat Officer South Tripura District Belonia. 4. Block Development officer Bokafa R D Block Bokafa South Tripura. 5. Smti. Anita MogPanchayat Officer Bokafa RD Block Notice to be served through the Block Development Officer Bokafa RD Block Bokafa South Tripura. 6. Sri Anish Debnath Assistant Director of Panchayats Office of the South Tripura Zilla Parishad Belonia South 7. Sri Avijit Mitra son of Sri Jagadish Mitra resident of Lowgang P.O. and P.S. Shantir Bazar District South Tripura. 8. Bharatiya Janata Party President Tripura State Committee Krishnagar Agartala West Tripura. 9. Smti. Satyabati Reang wife of Sri Harendra Reang resident of Gardhang P.O. Kanchan Nagar P.S. Shantir Bazar District South Tripura. 10. Smti. Bulti Paul Chowdhury wife of Sri Biplab Paul Chowdhury resident of Shanti Coloney P.O. and P.S. Shantir Bazar District South 11. Sri Sridam Das son of late Monoranjan Das resident of Kanchan Nagar ... ...Respondent(s). P.O. and P.S. Shantir Bazar District South Tripura. For the Petitioner(s) For the Respondent(s) Date of hearing Date of delivery of Judgment and Order Whether fit for reporting Mr. N.Das Adv. Mr. D. Bhattacharjee Govt. Advocate. 08.02.2021 22.03.2021 Yes. B E F O R E HON’BLE THE CHIEF JUSTICE MR.AKIL KURESHI HON’BLE MR. JUSTICE S.G.CHATTOPADHYAY JUDGMENT S.G.Chattopadhyay J] Petitioners who are the elected members of Bokafa Panchayat samiti in South Tripura District have challenged the order dated 27.03.2020 passed by the District Magistrate and Collector of South Tripura District[Respondent No.2] in purported exercise of powers under sub section(3) of Section 76 of the Tripura Panchayats Act 1993 declaring that the petitioners earned disqualification under clause(b) of sub section(1) of Section 76 of the Act for voting in the Panchayat Samiti meeting held on 11.02.2020 contrary to the direction of the party. The said petitioners were elected as members of Bokafa Panchayat Samiti in South Tripura from Bharatiya Janata Partyin the Panchayat Samiti election held in 2019. The said Panchayat Samity consisted of 9 elected members. Other than the petitioners respondent No.7 and proforma respondent no 9 10 & 11 were the other elected members of the Panchayat Samiti. After their election as members of Bokafa Panchayat Samiti from the same political party they elected Respondent No. 11 Sridam Das as Chairman and Respondent No.7 Sri Avijit Mitra as Vice Chairman of the said Panchayat Samiti. Performance of the Chairman not being satisfactory majority of the elected members including the petitioners and Respondent No.7 issued a notice dated 20.01.2020to the District Panchayat Officer South Tripuraseeking removal of the Chairman of the said Panchayat Samiti. In response the District Panchayat Officer Respondent No.3] vide his letter dated 28.01.2020 requested the said members to submit their proposal in Form 4 in terms of sub rule(2) of Rule 23 of the Tripura Panchayats Rules 1994. Accordingly they submitted the proposal in Form 4 in terms of the advice of the District Panchayat Officer. The District Panchayat Officer then convened a meeting for removal of the Chairman on 11.02.2020 at 11 A.M in the Panchayat Samiti hall at Bokafa and issued notice dated 01.02.2020[Annexure 4] to all elected members of the said Panchayat Samiti to attend the meeting. The members were also informed that Anita Mog Panchayat Officer Respondent No.5] will preside over the meeting and Sri Anish Debnath Assistant Director of Panchayat will act as an observer in the said meeting. The meeting was held on the appointed date and in the said meeting all the 5 petitioners cast their votes in favour of the no confidence motion by raising their hands. Accordingly the no confidence motion against the Chairman of the Panchayat Samiti was passed by the majority vote of 5 petitioners in the said Panchayat Samiti consisting of 9 elected members and the District Panchayat Officer Respondent No.3] vide order dated 24.02.2020removed Sri Sridam Das Respondent No.11 from the office of the Chairman of the said Panchayat Samiti. Thereafter the District Magistrate and Collector vide memorandum dated 13.03.2020 Annexure 6] asked the petitioners to show cause as to why they shall not be disqualified from membership of the said Panchayat Samiti in terms of clause of sub section of Section 76 of the Tripura Panchayats Act 1993 for voting against party whip in the said meeting of Bokafa Panchayat Samiti held on 11.02.2020. The petitioners submitted their reply vide impugned order dated 27.03.2020 Annexure 11] declared that the petitioners earned disqualification under Section 76(1)(b) of the Panchayats Act 1933 for voting contrary to the direction of the party. Hence the petitioners have filed this petition for quashing the impugned order of Respondent No.2. In their counter affidavit State respondent No.1 to 4 stated that the State BJP president authorized the District President of BJP Shri Sankar Roy to issue the party whip to the elected members of Bokafa Panchayat Samiti to attend the meeting convened on 11.2.2020 and vote against the no confidence motion. But the petitioners voted for the no confidence motion and thereby violated the party whip. It was also contended by the respondents that the written party whip was served on the petitioners during the meeting and the said petitioners acknowledged the receipt of the party whip by putting their signatures. The proceedings of the said meeting was also videographed and the minutes of the meeting was signed by Smt. Anita Mog who conducted the meeting as Panchayat Officer Respondent No.6 Sri Anish Debnath Assistant Director of Panchayat who was appointed as observer of the proceedings of the meeting and Respondent No.7 Sri Avijit Mitra Vice Chairman of Bokafa Panchayat Samiti who presided over the meeting. Anish DebnathAssistant Director of Panchayat also submitted a report dated 17.02.2020 to the District Panchayat Officer and acting on the minutes of the proceedings and the report of Respondent No.6 the District Magistrate and Collector after issuing show cause notice to the petitioners and considering their replies declared that they earned disqualification under Section 76of the Panchayats Act 1993. Respondent No.4 5 and 6 filed no counter affidavit in the case. Counter affidavit was also filed by Respondent No.7 and it was stated by Respondent No.7 Avijit Mitra that he presided over the meeting held on 17.02.2020 in Bokafa Panchayat Samiti and according to him no party whip was served or read over in the said meeting before the no confidence motion was put to vote. He also stated that on the minutes of the meeting his signature was procured without making him aware of the contents of the document. No other respondent had filed any counter affidavit. We have heard Mr. N.Das learned advocate appearing for the petitioners and Mr. D. Bhattacharjee learned GA appearing for the State respondents. following contentions: Counsel appearing for the petitioners has raised the i) There is no proof that no party whip containing the direction of the party whip was served on the petitioners at any point of time prior to the meeting held on 17.02.2020. ii) Admittedly Sri Avijit Mitra Vice President of Bokafa Panchayat Samiti presided over the said meeting who categorically stated in the counter affidavit submitted by him that no party whip was served on any of the elected members prior to the said meeting and no party whip was even read over to the elected members of the Panchayat Samiti in the meeting before the no confidence motion was put to vote. Therefore disqualification of the petitioners on the ground of violation of party whip is baseless and illegal. iii) The petitioners appeared at the said meeting on 17.02.2020 pursuant to the notice dated 01.02.2020 Annexure 4] issued by the District Panchayat Officer Respondent No.3] and cast their votes in favour of the no confidence motion and as such they committed no wrong. Counsel appearing for the Government Advocate has opposed the petition contending that it is a clear case of defection for violation of party whip by the petitioners for which they incurred disqualification under Section 76 of the Tripura Panchayats Act 1993. It is contended by learned GA that the minutes of the meetinghas confirmed that the party whip was read over to the petitioners. The party whip indicates that the elected members including the petitioners were asked to vote against the no confidence motion which was brought for removal of the elected Chairman Respondent 11] of the said Panchayat Samiti. But they voted in favour of the no confidence motion contrary to the direction of the party and thereby earned disqualification under Section 76(1)(b) of the Tripura Panchayats Act. According to learned counsel the impugned order was rightly issued by Respondent No.2 declaring that the petitioners were disqualified from membership of the said Panchayat Samiti. We may recall that the District Magistrate and Collector South Tripura by the impugned order dated 27.03.2020 declared that the petitioners earned disqualification as members of the said Panchayat Samiti for voting contrary to the direction of the political party in the no confidence motion in the meeting held on 11.02.2020 at Bokafa Panchayat Samiti hall for removal of the chairman of Bokafa Panchayat Samiti. To examine the correctness of the impugned order it would be appropriate to refer to the statutory provisions pertaining to removal of the elected chairman of a Panchayat Samiti. Section 82 of the Tripura Panchayats Act 1993 pertaining to removal of Chairman Vice Chairman of Panchayat Samiti provides as under: A Chairman or a Vice Chairman of Panchayat “82. Samiti may at any time be removed from office by a resolution of the Panchayat Samiti carried by the majority of the existing elected members of the Panchayat Samiti at a meeting specially convened for the purpose in the prescribed manner. Notice of such meeting shall be given to the prescribed authority by not less than one fifth of the total members: Provided that in such meeting while any resolution for the removal of the Chairman from his office is under consideration the Chairman or while any resolution for the removal of the Vice Chairman from his office is under consideration the Vice Chairman shall not though he is present preside and the provisions of sub section of Section shall apply in relation to every such meeting as they apply in relation to a meeting from which the Chairman or as the case may be the Vice Chairman is absent.” The details of the procedure for removal of Chairman and Vice Chairman and members of Panchayat Samiti have been prescribed under Rule 23 of the Tripura Panchayats Rules 1994 which reads as under: “23(1)The District Panchayat officer shall be the prescribed Authority for removal of a member of a Panchayat Samiti under sub section(1) of Section 81 of the Act. He shall exercise this function only on the basis of receipt of communication in this regard from the concerned Panchayat Samiti. The Additional District Magistrate & Collector of the concerned District shall be appellate authority under sub Section(2) of Section 81 of the Act. 2)On receipt of a notice in Form 4 signed by at least one fifth of the total members of a Panchayat Samiti District Panchayat Officer shall convene a meeting for removal of a Chairman or Vice Chairman under Section 82 of the Act. Such notice shall be delivered in person to the District Panchayat officer by one of the member signing the notice or sent by registered post. 3)In case of removal of both Chairman and Vice Chairman in the same meeting the meeting shall be presided over as President by a member who shall be elected by the members present. Provided that the District Panchayat Officers shall appoint an observer for such meeting who shall submit a report in writing to the District Panchayat officer immediately after completion of the meeting. 4)At the beginning of the meeting Presiding Officer shall read out to the members of the Panchayat Samiti present in the meeting the notice in form 4 given under Section 82 of the Act. He shall then allow the motion for removal to be read and discussed. Such discussions shall terminate before expiry of one hour from commencement of the meeting or such further time as may be extended by the Presiding Officer. Upon concluding of the debate or upon expiry of the said period the motion shall be put to vote. Vote shall be by show of hands: Provided that in case of absence of quorum the meeting shall be adjourned and the adjourned meeting shall be convened in the same manner. 5) The Presiding Officer shall declare the result of voting. The motion for removal shall be deemed to have been carried only when it has been passed by the majority of the existing members of Panchayat Samiti. 6) The Presiding Officer shall forthwith forward the minutes of the meeting to the District Panchayat Officer. The District Panchayat Officer will issue the removal order and intimate the same to the Executive Officer of the Panchayat Samiti Chief Executive Officer of the Zilla Parishad and Secretary to the Panchayt Samiti. 7) In case of removal of both Chairman and Vice Chairman the charges will be taken over from the Chairman and Vice Chairman by the members so appointed under Rule 3 of the Tripura Panchayats Election of Office Bearers) Rules 1994 until the new Chairman or as the case may be the Vice Chairman is elected and assumes office. 8) If the Chairman or as the case may be the Vice Chairman fails or refuses to hand over the charges the transfer of charges shall be effected through police Admittedly there were 9 elected members all from BJP including the Chairman and Vice Chairman of the said Panchayat Samiti. The aforesaid rules provide that the District Panchayat Officer shall be the prescribed authority for removal of elected member of the Panchayat Samiti and he shall exercise such function on the basis of receipt of a communication from the concerned Panchayat Samiti. Sub rule(2) of said Rule 23 provides that meeting for removal of Chairman or vice chairman shall be convened under Section 82 of the Panchayats Act on receipt of a notice in form 4 signed by at least one fifth of the elected members. It has also been provided under the proviso to sub rule(3) of the said Rule 23 that the District Panchayat officer shall appoint an observer for such meeting who shall submit a report to the District Panchayat officer immediately after the meeting. Under sub rulethe Presiding Officer shall declare the result of voting and the motion for removal shall be deemed to have been carried only when it has been passed by the majority of the existing members of the Panchayat Samiti. the given context the five petitioners along with respondent no.7 all of whom were elected members of the 9 member Panchayat Samiti gave notice to the District Panchayat Officer in prescribed form no 4[Annexure 3 of the writ petition] in terms of sub rule(2) of Rule 23 of the Tripura PanchayatRules 1994. On receipt of the said notice form a majority of the elected members the District Panchayat Officer issued notice dated 01.02.2020 in terms of sub rule(2) of Rule 23 of the said Rules convening a special meeting of the Bokafa Panchayat Samiti for removal of the Chairman of the said Panchayat Samiti pursuant to the no confidence motion brought by majority of the members of the said Panchayat Samiti. It was mentioned in the said notice that the meeting would be held in the Bokafa Panchayat Samiti hall on 11.02.2020 at 11 a.m and Smt. Anita Mog Panchayat Officerwould be the Presiding Officer to conduct the meeting and Sri Anish Debnath respondent No.6 would be the observer of the said meeting. The notice of the meeting was served on each of the elected members. Thereafter the meeting was held on the appointed date and at the appointed time and place. All the elected members were present in the meeting. After the no confidence motion against the Chairman was passed by the votes of majority of the members present and voting the minutes of the meetingwas drawn up and signed by the duly appointed Presiding Officer the Observer Respondent No.6] and the President of the meeting which forms the quorum for the meeting and at the beginning of the meeting the notice in Form 4 is read out and also issued the political party whip to all members. The motion then has been placed for debate by the members present in the meeting and has been asked to conclude the discussion by 12.00 P.M. Then all members present in the meeting were informed that the motion would now be put to vote and apprised them that votes should have to be casted by raising of hands as specified under Rule 23 of the Tripura Panchayats Rules 1994. Out of 9 nos members present in the meeting 05 members raised their hands showing their support in favour of the motion and accordingly put their signature in the attendance.” Smt. Anita Mog Presiding Officer of the said meeting Respondent No.5] by her letter dated 14.02.2020 communicated the said minutes of the meeting to the District Panchayat Officer in terms of sub rule(6) of Rule 23 of the said Rules. Anish Debnath Respondent No.6] who was appointed observer in terms of the proviso to sub rule(3) of Rule 23 of the said Rules also submitted his report dated 17.02.2020 to the District Panchayat Officer Respondent No.3]. On the basis of said report dated 14.02.2020 of the Presiding Officer and report dated 17.02.2020 of the observer the District Panchayat Officervide memorandum dated 24.02.2020 Annexure 5 of the writ petition] issued the removal order of the Chairman of the said Panchayat Samiti in terms of sub rule(6) of Rule 23 of the said Rules. Said removal order reads as under: “Annexure 5 Government of Tripura Office of the District Magistrate & Collector South Tripura District Belonia No.F.29(23) DPO S PGE 2019 1169 Dated 24 02 2020 Whereas the O o the South Tripura Zilla Parishad Belonia received a letter along with FORM 4” on 29th January 2020 wherein 6(six) existing elected members out of nine) of Bokafa Panchayat Samiti signed with intention for removal of present Chairman(Sri Sridam Das) of Bokafa Pacnchayat Samiti. issued by Whereas as per Rule 23(2) of the Tripura Panchayats Rules 1994 and in pursuance of Section 82 of The Tripura Panchayats Act 1993 a notice the undersigned vide No.F.29(21 5) DPO S PGE 2019 1097 Dt.01 02 2020 to conduct a special meeting on the issue of No Confidence Motion held on 11th February 2020 at 11.00 AM at Bokafa Panchayat Samiti Hall where Sri Avijit Mitra Vice Chairman of Bokafa Panchayat Samiti presided over and Smt.Anita Mog Panchayat Officer of Bokafa RD Block had discharged duties as Presiding Officer and Sri Anish Debnath Assistant Director of Panchayats(on CDC) STZP was present as an Whereas according to the report submitted by the Presiding Officer(Smt. Anita Mog) vide No. F. 9(6) BDO BKF PANCH 2019 20 640 Date: 14 02 2020 and also report of the Observer vide No.F.29 DPO S Misc 2018 1164 Date: 17 02 2020 it is commonly brought to notice of the undersigned that out of nineElected Members of Bokafa Panchayat Samiti all of them including Chairman Vice Chairman remained present that clearly formed quorum. The reports also reveal that at the beginning of the meeting the Presiding Officer read out Form 4 along with Whip of Political party(BJP) which they belong to. After making a debate discussion on the issue for removal of Chairman of Bokafa Panchayat Samiti the matter put to vote among the members who remained present in the hal. From the record it is known that out of nine(09) members five(05)members namely 1)Indrajit Das 2)Rajesh Reang 3)Debashish Majumder 4)Anita Reang 5)Sujata Das(Natta) casted their votes in favour of No Confidence Motion by raising their hands while the president couldn’t take part for casting vote as per sub section(5) of Section(87) of the Tripura Panchayats Act 1993. Besides since I have gone through the result declared by the Presiding Officer of the meeting under Section 23(5) of Part B of Chapter II of the Tripura Panchayats Rules 1994 it is come to notice that the No Confidence Motion has been passed by the majority of existing members of Bokafa Panchayat Samiti. Now therefore per Rule23(6) Rules(Administration) 1994 I the District Panchayat Officer of South Tripura District to remove Sri Sridam Das from the post of Chairman of Bokafa Panchayat Samiti. The removed Chairmanis hereby requested to hand over the all charges of Bokafa Panchayat Samiti to Sri Avijit Mitra Vice Chairman of Bokafa Panchayat Samiti in Form 1(enclosed) within ten days. the Tripura Enclo: As stated. By order District Panchayat Officer South Tripura District Belonia To Sri Sridam Das Bokafa Panchayat Samiti South Tripura District for compliance Copy to 1.The CEO(DM & Collector) STZP South Tripura District for kind information. 2.The Director of Panchayats Agartala West Tripura for kind information. 3. The EO(BDO) Bokafa RD Block South Tripura for information. He is also requested to arrange to serve this order to concerned and to take necessary action accordingly. 4.The Secretary Bokafa Panchayat Samiti South Tripura District for information & n.a. 5.All directly elected members Bokafa Panchayat Samiti for information. 6.The Vice Chairman of Bokafa Panchayat Samiti for information and compliance. South Tripura District Belonia” District Panchayat Officer Thereafter the District Magistrate and Collectorvide memorandum dated 13.03.2020[Annexure 6 of the writ petition] issued show cause notice to the petitioners on the basis of report received from the Presiding Officer of the said meeting asking them to show cause as to why they would not be declared disqualified as members of the said Panchayat Samiti for voting contrary to the direction of their political party. The said memorandum dated 13.03.2020 of the District Magistrate and Collector reads as under: “Annexure 6 Government of Tripura Office of the District Magistrate & Collector South Tripura District Belonia No.F.29(23) DPO S PGE 2019 1210 Dated 13 03 2020 Whereas it has been brought to my notice by presiding officer of the meeting of Bokafa Panchayat Samiti which was held on 11th February 2020 at 11.00 A.M that some members have earned disqualification under Section 76 of the Tripura Panchayats Act 1993 and referred the issue of deciding the question of their disqualification for decision under sub section(2) or as the case may be or both of Section 76 of the Act. Whereas it has been informed that you have earned disqualification under Section 76 of the Tripura Panchayats Act 1993 for voting contrary to the direction of yur political party. Whereas it has been observed that no letter of prior permission or condonation has been submitted by you to the undersigned within thirty day from the date of voting i.e. upto 12 03 2020). Now therefore you are hereby asked to show cause as to why you shall not be disqualified from being a member of Bokafa Panchayat Samiti as per clauseof sub section(1) of Section 76 of Tripura Panchayats Act 1993. Your reply in this regard shall reach the office of the undersigned by 17 03 2020 else it shall be presumed that you have nothing to say in this matter and ex parte decision shall be taken. District Magistrate & Collector South Tripura District Belonia” 16] All the five writ petitioners submitted same written reply dated 13.03.2020 to the show cause notice denying the allegations and asserting that they were never asked to abstain from voting for removal of the Chairman of the said Panchayat Samiti. Since the replies are same it would be appropriate to reproduce one of those replies for reference which is as “Annexure 7 The District Magistrate & Collector South Tripura District Belonia South Tripura Subject: Reply of your kind memorandum No.F.29(23) DPO S PGE 2019 1210 Dated 13 03 2020 Respected Sir With profound respect and magnificent generosity I would like to convey to your kind self the following facts which is factual related to your kind memo number explicit above for favour of your kind perusal and further course of action. 1) That sir 2)That sir 3)That sir At the very out set I beg acknowledge as received of your letter number stated above and furnishing herewith the reasonable reply in seriatim in according with the stanga wise. It is fact on 11th February 2020 one meeting was hold at 11 AM. In the Bokafa Panchayat Samiti Hall & Smt. Anita Mog Panchayat Officer of Bokafa RD Block has discharged duties as presiding officer and Sri Anish Debnath Asstt. Director of Panchayatof Panchayat 1994. Subsequently on the other hand one office order has been communicated to me vide office order No. No.F.29(23) DPO S PGE 2019 1169 Dated 24 02 2020 Issued by the District Panchayat Officer South Tripura District Belonia. Where in it is clearly mentioned that the No confidence motion has been passed by the majority of existing members of Bokafa Panchayat Samity as per rule 23(6) of the Tripura Panchayat Rules(Administration)1994. Beside the District Panchayat Officer South Tripura District Belonia requested to the removed chairman of Bokafa Panchayat Samity to Sri Avijit Mitra Vice Chairman of Bokafa Panchayat Samity in form 1 which was enclosed) within ten days. In this perspective I am highly eagerness to know under what circumstances the presiding Officer and observer took the Votes I C. with the removal of the existing Chairman of Bokafa Panchayat Samity and District panchayat Officer Issued Office Order to handing over the all charges of Bokafa Panchayat Samity in form No.I It I am disqualify from the post of panchayat samity member Bokafa Panchayat Samity along with caste of my Vote. In Compliance of the office order issued by the District Panchayat Officer the Vice Chairman of Bokafa Panchayat Samity wrote a letter addressing to the District Panchayat Officer for handing over of the all charges of Bokafa Panchayat Samity on regards to effective functioning of the establishment of Bokafa Panchayat Samity on 03 10 2020. However In response to your kind memo number cited above I am furnishing here with the self representation which is factual for favour of your king perusal and magnanimous consideration. Copy to: 1) The District Panchayat Officer South Tripura District Belonia for favour of kind Member Bokafa Panchayat Samity Yours sincerely On receipt of the reply received from the petitioners the District Magistrate and Collector vide his impugned order dated 27.03.2020[Annexure 11 of the writ petition] declared that the petitioners earned disqualification under Section 76(1)(b) of the Tripura Panchayats Act 1993 on the ground that they voted for removal of the Chairman of the said Panchayat Samiti contrary to the direction whip issued by their political party without obtaining prior written permission of their party and their conduct was not condoned by their party within 30 days from the date of such voting. The impugned order reads as follows: “Annexure 11 Government of Tripura Office of the District Magistrate & Collector South Tripura District Belonia No.F.29(23) DPO S PGE 2019 Dated 27th March 2020 Smt. Anita Mog Panchayat Officer of Bokafa RD Block South Tripura vide her letter No.F.9(6) BDO BKF PANCH 2019 2020 641 dated 14 02 2020 has referred the matter of disqualification of 6(six)members of Bokafa Panchayat Samiti viz. Sri Avijit Mitra. Smt. Anita Reng. Sri Rajesh Reang Sri Indrajit Das Smt. Sujata Das(Natta) & Sri Dbashish Majumder to the undersigned. It was observed that as per provision contained in Section 82 of the Tripura Panchayats Act. 1993 6(six)elected members of Bokafa Panchayat Samity have delivered Notice to the Secretary Dakshin Tripura Zilla Parishad(District Panchayat Officer)South Tripura . Belonia in FORM 4 for convening Special Meeting of Bokafa Panchayat Samiti Hall for removal of existing Chairman of Bokafa Panchayat Samiti Bokafa South Tripura. Thereafter a meeting of Bokafa Panchayat Samity under Bokafa RD Block. South Tripura was convened on 11th Februray 2020 at Bokafa Panchayat Samiti Hall at 11.00 AM for removal of existing Chairman of Bokafa Panchayat Samiti Bokafa South After the meeting Smt. Anita Mog Panchayat Officer of Bokafa RD Block South Tripura has submitted report to the DM & Colletor South Tripura in FORM 12 A under Rule 27(sub rule 1&2) of the Tripura Panchayats(Election of Office Bearers)rules 1994 that 6(Six) elected Members of Bokafa Panchayat Samiti viz. Sri Avijit Mitra Smt. Anita Reang Sri Rajesh Reang Sri Indrajit Das Smt.Sujata Das(Natta) & Sri Debashish Majumder have earned disqualification under Section76(1)(b) of the Tripura Panchayats Act 1993 for voting contrary to the direction of Political Party to which they belonged. A show cause memo was issued dated 13 03 2020 to all the members of Panchayat Samiti as to why they shall not be disqualified from being a member of Bokafa Panchayat Samiti as per clause of sub section(1) of Section 76 of Tripura Panchayats Act 1993. It was observed from the reply furnished by the members of the Panchayat Samiti that they could neither submit any prior written permission of the political party to which they belonged for voting contrary to the directions issued by the political party nor they could furnish any document regarding condonation of such voting or abstenation by the political party within thirty days from the such voting or abstenation. Sri Commissioner Kalai District Panchayat Officer South Tripura who was directed to enquire into the matter vide Memorandum No.F.29(23) DPO S PGE 2019 1218 dated 16 03 2020 in his report vide No. F.29(23) DPO S PGE 2019 1239 dated 25 03 2020 has mentioned that they have earned disqualification under Section 76 of the Tripura Panchayats Act 1993 for abstaining in voting or voting contrary to the direction issued by the political party to which they belonged. Also that the points raised by these 6(Six) members of Bokafa Panchayat Samiti are unreasonable and However it was observed from the minutes of the proceeding that only 5(five) members voted against the direction of the political party. Sri Avijit Mitra who presided over the meeting did no cast vote. In the sub section(5) of Section 87 of The Tripura Panchayats Act 1993 it is mentioned that “ All questions coming before a Panchayat Samiti shall be decided by a majority of vote: Provided that in case of equality of votes of person presiding shall have a casting Provided further that in case of a requisitioned meeting of the removal of Chairman or Vice Chairman under Section 82 the person presiding over the meeting shall have no casting vote” Thus it is clear that Sri Avijit Mitra who presided over the meeting had not cast his vote and he was not required to as per the abovementioned provision. Therefore the disqualification under Section 76(1)(b) of the Tripura Panchayats Act. 1993 will not be applicable to Sri Avijit Mitra. However the disqualification under Section 76(1)(b) of the Tripura Panchayats Act 1993 would be applicable to those 5(five) members who voted against the directions contrary to the political party to which they belonged and that has not been condoned by the political party within the stipulated time. Therefore in exercise of the power conferred upon me under Section 76(3) of the Tripura Panchayats Act 1993 I Sri D.Bardhan IAS District Magistrate & Collector South Tripura being empowered to take decision on the subject of disqualification of elected member after careful consideration of the above facts and circumstances presented before the undersigned hereby declare that that 5(five) elected Members of Bokafa Panchayat Samiti viz. Smt.Anita Reang Sri Rajesh Reang Sri Indrajit Das Smt.Sujata Das & Sri Debashish Majumder have earned disqualification under Section 76(1)(b) of the Tripura Panchayats Act 1993 for voting contrary to the direction of the Political Party to which they belonged and the disqualification shall take immediate effect. District Magistrate & Collector South Tripura Belonia 1. Avijit Mitra Vice Chairperson Bokafa Panchayat Samiti. 2. Smt. Anita Reang 3. Sri Rajesh Reang 4. Sri Indrajit Das 5. Smt. Sujata Das(Natta) 6. Sri Debashish Majumder Copy also to: 1. The Director of Panchayats Government of Tripura for kind information 2. TheDPO South Tripura District for information and necessary action 3. The Executive Officer Bokafa Panchayat SamitiMain contention of the petitioners is that the proceedings for removal of the Chairman of the said Panchayat Samiti was conducted strictly in terms of the statutory provisions and no party whip was communicated to the petitioners to abstain from voting in favour of the no confidence motion and as a result their disqualification from the membership of the said Panchayat Samiti is illegal and untenable in the eye of law. The state respondents on the other hand contended that the party whip was served upon all the elected members including the petitioners who also acknowledged the receipt of the whip. According to the official respondents the whip was also read over to the elected members including the petitioners prior to the meeting held on 11.02.2020 where the no confidence motion was moved. Strikingly Respondent No.7 Avijit Mitra Vice Chairman of the said Panchayat Samiti who presided over the said meeting categorically stated in paragraph 10 of his counter affidavit filed on 03.02.2021 that no party whip was issued or read over in the said meeting. The relevant extract of his counter affidavit is as follows: “10.That the averments made in para 16 and 17 of the writ petition are true. As per PanchayatRules 1994 I being the Vice Chairperson of the Samity presided over the said meeting dated 11 02 2020. But Presence of Respondent No.5 as presiding officer of the said meeting dated 11 2 2020 was beyond the said rules as well as her report dated 17 02 2020 wherein Respondent No.5 without giving undertaking anything to me obtained my signature about after one week in the minutes typed in English that also not read over to me Annexure 9 and as such I do not deny and dispute to the averments in this paragraph. the Majority Member of It is mentionable here that the minutes of the meeting was carried out by a resolution of the Meeting as per Tripura Panchayat(Administration) Rules 1994 and as such report of the respondent No.5 annexure 9 is contrary to the aforesaid rules 1994 as well as The Tripura Panchayat Act 1993 and The Tripura Panchayats(Election of Office Bearers)Rules 1994. The annexure 9 report of the Respondent No.5 6 and myself is not prepared in the meeting on 11 02 2020. But it is prepared on 17 02 2020 in the office of the Respondent No.3 and obtained my Signature Stating that the Bengali written resolution of the meeting dated 11 02 2020 is translated to English and obtained my signature without reading over to me but no Political Party whip issued or read over in the meeting that now I could realize from the Annexure 9 on receipt of the copy of the writ petition. When Respondent No.5 obtained signature there was no signature of Respondent No.5 &6 but obtained in their Office stating that it is prepared and my signature is necessary as I presided the meeting dated 11 2 2020 but nothing read over to me and that also contrary to the Panchayat and Rules. That the averments made in para 18 of the writ petition I say that as I presided over the meeting dated 11 2 2020 I did not refer any issue of Disqualification of any member but as regard referring any issue of Disqualification of petitioners are matter of Law and Facts and as such I Neither Denied nor disputed in this regard.” Debashish Mazumder one of the petitioners in his rejoinder dated 03.02.2021 also stated that no party whip was served on any of the petitioners in any manner. Counsel of the petitioners submitted that the burden of proof of service of the party whip lies on the respondents and the order does not survive. respondents having failed to prove the service their disqualification It is already observed that there is no proof of service of the party whip on the petitioners. Even Respondent No.7 Vice chairman of the said Panchayat Samiti who presided over the meeting categorically stated in his counter affidavit that no party whip was ever served or read over to the members of the Panchayat Samiti. The state respondents did not submit any rejoinder to dispute the contention of Respondent No.7. Even no other respondents who were present in the said meeting submitted any counter affidavit denying the said contention of the In these circumstances the contention of the petitioners that no party whip was served on them stands established. It is true that neither the Act nor the Rules made thereunder provide for a particular method of service of intimation of the whip containing the direction of the party. Section 76 of the Act uses the expression “contrary to the direction issued by the political party”. Thus the stress is on a member voting contrary to the any direction issued by the political party to which he belongs. In the case of Ranjit Sinha and Ors. vs. State of Tripura and Ors. this Court held that in order to establish the breach of party whip communication of the particular direction whip would be necessary. In the said case disqualification order of the petitioners was set aside on the ground that there was no evidence of the communication of the party whip to the members and the High Court held as under: “25.Even though there is no specific provision in this regard undoubtedly within the scheme of the statute and the Rules made thereunder the petitioners were entitled to be properly communicated the party whip prior to the commencement of the election process since their failure in complying with such whip would render them disqualified from the membership of the panchayat .” Plea of the respondents that the party whip was read over to the members prior to the meeting is categorically denied by the petitioners as well as Respondent No.7 who presided over the said meeting. For argument’s sake even if it is conceived that the party whip was read over to the members prior to the meeting such reading of the party whip cannot be substituted for proper communication of the whip. It was held by this court in the case of Ranjit Sinha(supra) that reading out of party whip cannot be substituted for proper communication of the whip on the elected members of the party to which they belong. If the requirement of proper and valid communication of whip is to be substituted by reading out the whip by the authorized officer which does not form part of his statutory duties it will open wide possibilities of disputes of authenticity correctness and reliability of The same analogy applies to this case. In absence of proof of proper service of the party whip on the petitioners they cannot be held disqualified for violation of such whip. The Apex Court has also held that removal of an elected member from a democratic institution is a very serious matter which cannot be done without strict adherence to the prescribed procedure. In Tarlochan Dev Sharma vs. State of Punjab and Ors. reported in AIR 2001 SC 2524 the Apex Court has succinctly held that in a democracy governed by the rule of law removal of an elected candidate from his office before the expiry of the statutory term for which he has been elected is a serious matter. Once elected to an office in a democratic institution the incumbent is entitled to hold the office for the whole term unless his election is set aside by a prescribed procedure known to law. Observation of the Apex Court in paragraph 7 of the said judgment is as “7. In a democracy governed by rule of law once elected to an office in a democratic institution the incumbent is entitled to hold the office for the term for which he has been elected unless his election is set aside by a prescribed procedure known to law. That a returned candidate must hold and enjoy the office and discharge the duties related therewith during the term specified by the relevant enactment is a valuable statutory right not only of the returned candidate but also of the constituency or the electoral college which he represents. Removal from such an office is a serious matter. It curtails the statutory term of the holder of the office. A stigma is cast on the holder of the office in view of certain allegations having been held proved rendering him unworthy of holding the office which he While highlighting on the necessity of strict adherence to the legal requirements and principles of natural justice for removal of a duly elected member of the Panchayat and the effect of such removal on the electorate similar observation was made by the Apex Court in Laxmibai vs. Collector Nanded & Ors. reported in AIR 2020 SC 3393 wherein the Apex Court also made a reference to Tarlochan Dev Sharma(supra) and held as “16. In Tarlochan Dev Sharma v. State of Punjab & Ors.5 this Court has held that holding and enjoying an office discharging related duties is a valuable statutory right of not only the returned candidate but also his constituency or electoral college. Therefore the procedure prescribed must be strictly adhered to and unless a clear case is made out there cannot be any justification for his removal. 17. In Ravi Yashwant Bhoir v. District Collector Raigad & Ors.[(2012) 4 SCC 407 : this Court held that an elected official cannot be permitted to be removed unceremoniously without following the procedure prescribed by law. Where the statutory provision has very serious repercussions it implicitly makes it imperative and obligatory on the part of the authority to have strict adherence to the statutory provisions. It was held as under: “35. The elected official is accountable to its electorate because he is being elected by a large number of voters. His removal has serious repercussions as he is removed from the post and declared disqualified to contest the elections for a further stipulated period but it also takes away the right of the people of his constituency to be represented by him. Undoubtedly the right to hold such a post is statutory and no person can claim any absolute or vested right to the post but he cannot be removed without strictly adhering to the provisions provided by the legislature for his removal 1 SCC 691 : AIR 1982 SC 983] Mohan Lal Tripathi v. District Magistrate Rae Bareily4 SCC 80 AIR 1993 SC 2042] and Ram Beti v. District Panchayat Raj Adhikari1 SCC 680 : AIR 1998 SC 1222] ). 36. In view of the above the law on the issue stands crystallised to the effect that an elected member can be removed in exceptional circumstances giving strict adherence to the statutory provisions and holding the enquiry meeting the requirement of principles of natural justice and giving an incumbent an opportunity to defend himself for the reason that removal of an elected person casts stigma upon him and takes away his valuable statutory right. Not only the elected office bearer but his constituency electoral college is also deprived of representation by the person of their choice.” Keeping in view the said observations of the Apex Court and the discussions made above the impugned order dated 27.03.2020 by the District Magistrate and Collector South Tripura disqualifying the petitioners from the membership of Bokafa Panchayat Samiti for alleged violation of party whip is set aside. The writ petition is allowed and disposed of accordingly. S.G.CHATTOPADHYAY) J CJ Saikat Sarma P.A

Determination of seniority to be governed by Seniority Rules enforced at the Time of Appointment of the Personnel: Supreme Court of India

For determination of seniority which is a different concept and determination of seniority is governed by seniority rules enforced at the time of appointment of the personnel under 1972 Rules. This honorable judgement was passed by Supreme Court of India in the case of Jagmohan Singh Dhillon Etc. v. Satwant Singh & Ors[CIVIL APPEAL NOS.4616-4618/2010] by The Hon’ble Ashok Bhushan. The appeal was filled by appellant as The High Court vide the impugned judgment had allowed the LPA filed by the State of Punjab and set aside the judgment of learned Single Judge and dismissed the writ petitions. The appellants are ex-servicemen, who after being released from the Army were appointed to Punjab Civil Service. Rules were framed namely Demobilized Indian Armed Forces Personnel Rules, 1972, under which Rules Twenty percent of the vacancies in the Punjab Civil Service were to be filled in by direct recruitment from amongst Released Indian Armed Forces Personnel, who joined military service or were commissioned on or after the first day of November, 1962. The vacancies existed under Rules, 1972 for direct recruitment were from 1979 to 1981. Another set of Rules were framed namely Punjab Recruitment of Ex-servicemen Rules, 1982 which were gazetted on 12.02.1982. Fifteen percent of the vacancies to be filled by direct appointment were reserved for being filled in the recruitment by ex-servicemen. The examination was held in the year 1985 and the appellants were appointed vide order dated 18.03.1986 to Punjab Civil Service. The seniority list was issued in the year 1994 in which seniority of the appellant was fixed at S.No.25 without granting him any benefit of earlier services in the Army. The appellant submitted representation against wrong fixation of his seniority. The learned council referred the case of State of Punjab and other versus Dr. Balbir Bharadwaj, LPA No.168 of 2004, decided on 29.01.2007 has rightly been distinguished by the Division Bench in the impugned judgment. The court opinioned that, “The Division Bench has rightly taken the view that saving clause under Rule 9(3) does not extend any benefit to the appellant since there is nothing to show that any right of weightage for army services for seniority has already accrued before he joined services. Saving clause in Rule 9(3) cannot be availed by the appellant. We fully endorse the above view of the Division Bench taken in the impugned order.”

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS.4616 4618 2010 JAGMOHAN SINGH DHILLON ETC.ETC ...APPELLANT(S) SATWANT SINGH & ORS ...RESPONDENT(S JUDGMENT ASHOK BHUSHAN J These appeals have been filed against the Division Bench Judgment of High Court of Punjab and Haryana dated 28.07.2009 in LPA No.2107 with LPA No.1707. The High Court vide the impugned judgment has allowed the LPA filed by the State of Punjab and set aside the judgment of learned Single Judge and dismissed the writ petitions filed by the appellants Brief facts of the case necessary to be noted for deciding these appeals are The appellants are ex servicemen who after being released from the Army were appointed to Punjab Civil Service (Executive Branch) Rules 1972 under which Rules Twenty percent of the vacancies in the Punjab Civil Service i.e. Punjab Civil ServiceRules 1976 Learned counsel for the respondent Nos.1 to 4 submits that respondent Nos.1 to 4 have already retired from the service We have considered the submissions of learned counsel for the parties and have perused the record. The only question which needs to be considered and answered in this appeal is as to whether the appellant for determination of his seniority was entitled for the benefit of Rule 72 Rules. Rule 72 Rules provided as follows: 4.(1) The period of military service rendered after attaining the minimum age prescribed for appointment to the Punjab Civil Service Executive Branch) by the candidates appointed against reserved vacancies under rule 2 shall count towards fixation of pay and seniority in the said Service subject to the condition that a) The date of appointment in the PCS in respect of such candidates as are appointed against the reserved vacancies under rule 2 shall be assumption that they joined the service under the State Government at the first opportunity they had after joining the military service or training prior to the b) The inter se seniority of the military personnel determined by the Punjab Public Service Commission shall not be disturbed c) a military personnel appointed as a result of an earlier selection shall be senior to a appointed as a result of irrespective of the period of military service to his credit d) all candidates appointed against the reserved vacancies under rule 2 shall rank below the candidates appointed by direct recruitment in the year to which the former candidates are allotted.” 10. The 1972 Rules were superseded by another Rules framed under Proviso to Article 309 read with Article 234 and 318 of the Constitution of India namely PunjabRules 1982. Rule 82 Rules is to the following effect: 4. Reservation of Vacancies.(1) Subject to the provision of rule 3 fifteen percent of the vacancies to be filled in by direct appointment in all the State Civil Services and Posts connected with the affairs of the State of Punjab shall be reserved for being filled in by recruitment of Ex servicemen Provided that where an Ex serviceman is not available for recruitment against a reserved vacancy such a vacancy shall be reserved to be filled in by recruitment of the wife or one dependent child of an Ex serviceman who has neither been recruitment against reserved vacancy nor is eligible to be recruited against such vacancy under these rules Provided further that the total number of reserved vacancies including those reserved for the candidates belonging to the Scheduled Castes Scheduled Tribes and Backward Classes shall not exceed fifty percent of the posts to be filled in a particular year.” 2) Where a reserved vacancy remains unfilled for non availability of a person eligible for recruitment under these rules such vacancy may be filled in temporarily from any other source in accordance with the rules regulating the recruitment and the conditions of service of persons appointed to such posts as if the vacancy was not reserved Provided that the reserved vacancy so filled in shall be carried forward for the subsequent occasions arising during at least two years in each of which such occasion arises for recruitment where after the vacancy in question shall be treated as un reserved.” 11. As noted above Rule 72 Rules provided that period of military service rendered by a candidate appointed against reserved vacancy shall count towards fixation of pay and seniority which provision was no longer continued in Rule 82 Rules However the provision for reservation of vacancies was maintained to the extent of fifteen percent of the vacancies. Rule 182 Rules has provision of Repeal which is as follows: “10. Repeal The following rules are hereby repealed 1.The Punjab Government National Emergency Concession) Rules 1965 2.The Demobilized Armed Forces Personnel Reservation of Vacancies in the Punjab State Non Technical Services) Rules 3.The Demobilized Indian Armed Forces Personnel (Executive Branch) Rules 1972 and 4.The Released Indian Armed Forces Personnel Rules 1977.” 12. From the facts brought on the record it is clear that the advertisement against which the appellant was appointed was issued on 01.05.1982 i.e. after the enforcement of 1982 Rules. The appellant was appointed in pursuance of the advertisement by appointment order dated 18.03.1986. Although 1972 Rules have been repealed but in the 1982 Rules as per Rule 9(3) nothing in 1982 rules was to be construed as depriving any person of any right which had accrued under the rules in force immediately before the commencement of the Rules 1982. Before enforcement of 1982 Rules admittedly 1972 Rules were enforced 13. The much reliance has been placed by the learned counsel for the appellant on earlier judgment of learned Single Judge in W.P.No.3236 of 1995 Ishwar Singh and others versus State of Punjab. In the above case one of the questions was as to whether for the vacancies which were advertised under 1982 Rules the reservation for the Armed Forces Personnel shall be twenty percent or fifteen percent and whether the benefit of ex servicemen as contained in 1982 Rules shall be applicable with respect to vacancies which arose prior to enforcement of 1982 Rules. In paragraph 50 of the judgment following was observed: “50. Both the aforesaid decisions fully support the petitioners for the contention that the reservation quota in the vacancies which occurred before 12.02.1982 would be 20 percent for the Ex Servicemen and from 12.02.1982 it would be 15 percent. The carry forward rule under the 1972 rules as well as the 1982 rules till before amendment of 1984 was far a period of four years and it was amended by the 1984 amendment which came into effect from 30th April 1984. Therefore when the advertisements was made on 01.05.1982 for recruitment the left over vacancies from 1979 upto 1982 had to be taken into consideration and similarly the vacancies which occurred thereafter would also be taken not of for providing the relevant quota of 10 percent or 15 percent as the case may be. As noted above on the basis of the posts would be made available to the category of Ex. Servicemen. The vacancies which occurred on or after 30th April 1984 would be carried forward on the basis of the 1984 amended rules Whereas earlier unfilled vacancies would be carried forwarding under the 1972 and 1982 un amended rules...” 14. The above judgment has attained finality. The learned Single Judge took the view that since the vacancies were vacancies from 1979 upto 1982 the twenty percent reservation as provided under 1972 Rules shall govern. The judgment of Ishwar Singh thus only had laid down with regard to percentage of reservation of the vacancies which was held to be twenty percent in view of the vacancies occurring prior to the enforcement of 1982 Rules 15. The above proposition cannot be extended to the determination of the seniority. The question of determination of seniority comes only after a person enters into service and becomes a member of service Under 1972 Rules it cannot be held that the fact that vacancies were in existent prior to enforcement of 1982 Rules and appointment of a person subsequent to enforcement of 1982 Rules he shall be entitled to the benefit of Rule 4 i.e. to add his military services for the purposes of his seniority especially when the benefit which was available for the purposes of seniority under Rule 4 of 1972 Rules is no longer continued under 1982 Rules as noted above. 16. We have noticed that 1982 Rules specifically repealed the 1972 Rules thus the Rule 72 Rules which provided for benefit of seniority of Army service was no longer entitled to be counted for seniority for personnel who was appointed after enforcement of 1982 Rules. The judgment of Ishwar Singh of Punjab and Haryana High Court which only determined the percentage of reserved vacancies which were to be reserved for Army personnel could not be held to be relevant regarding determination of seniority in the facts of the present case. 17. We may notice the judgment of this Court in R.K Barwal and others versus State of Himachal Pradesh and others 16 SCC 803. This Court had occasion to consider in the above case Demobilized Armed Forces Personnel Rules 1972 where Rule 5 provided for counting of approved military service for purpose of determining seniority on joining civilian post. The Court held that persons joining Armed Forces during emergency period vis à vis persons joining Armed Forces during ‘peacetime’ there is a reasonable classification and benefit which was available for adding seniority to persons joining Armed Forces during emergency cannot be extended to persons joining Armed Forces during peacetime 18. This Court held that normal rule of fixing of seniority is with reference to the date of entry into the service and there has to be very weighty reason for departure from this rule. Following observations were made in paragraph 27: “27... After all if the benefit of armed force services rendered is extended to each and every ex serviceman for the purpose of seniority it may result in far reaching implications. Examples in this behalf are given by the private respondents as noted above. This Court cannot shy away from the normal rule of fixing the seniority as enunciated in the cases of Direct Recruitment Class II Engineering Officer’s Association as well as Aghore Nath Dey i.e. the seniority of an officer in service is determined with reference to the date of his entry in the service which is consistent with the requirement of Articles 14 and 16 of the Constitution. There have to be very weighty reasons for departure from this rule. Otherwise it may disturb the equilibrium by making many direct recruits junior to such ex servicemen even when such direct recruits joined the services in civil posts much earlier than the ex servicemen. Thus an exceptional category carved out for giving such a benefit only to those who were commissioned in Armed Forces during war time cannot be extended to each and every ex serviceman merely because he has served in Armed Forces.” 19. Under 1982 Rules there is no indication that the benefit which was available to Armed Forces Personnel under Rule 72 Rules are continued or any right has been accrued on the appellant under 1972 Rules which he is entitled to avail regarding seniority. 20. Learned Single Judge in its judgment dated 31.07.2007 has heavily relied on Ishwar Singh’s case holding that with regard to reservation of vacancies i.e. 1972 Rules have been made applicable the 1972 Rules also need to be applied for determination of seniority. The percentage of vacancies which are reserved for Armed Forces Personnel were held to be calculated as per 1972 Rules since the vacancies have occurred prior to 1982 Rules. The above judgment of learned Single Judge in Ishwar Singh cannot be relied for determination of seniority which is entirely a different concept and determination of seniority is governed by seniority rules enforced at the time of appointment of the personnel. The view of learned Single Judge that the appellant shall be deemed to be appointed under 1972 Rules cannot be approved. 21. The Division Bench has rightly taken the view that saving clause under Rule 9(3) does not extend any benefit to the appellant since there is nothing to show that any right of weightage for army services for seniority has already accrued before he joined services. Saving clause in Rule 9(3) cannot be availed by the appellant. We fully endorse the above view of the Division Bench taken in the impugned order. 22. Another judgment relied by the appellant is the judgment of Punjab and Haryana High Court in State of Punjab and other versus Dr. Balbir Bharadwaj LPA No.1604 decided on 29.01.2007 has rightly been distinguished by the Division Bench in the impugned 23. We thus hold that the appellant was not entitled to claim benefit of military service for purpose of seniority for appointment to Punjab Civil Service(Executive Branch) since the benefit of Rule 4(1) of 1972 Rules was not continued in 1982 Rules His seniority was to be governed by statutory rules applicable after the enforcement of 1982 Rules. 24. We do not find any error in the judgment of the Division Bench of the High Court. The appeals are ASHOK BHUSHAN S. ABDUL NAZEER HEMANT GUPTA New Delhi March 26 2021

Failure to obtain prior referral order doesn’t amount to rejection of medical reimbursement claims: Tripura High Court

Government cannot refuse to reimburse the expenditure of medical treatment to an individual on the basis that he/she failed to obtain a prior referral order from the Medical Board at the onset of the treatment. In an order passed by the Hon’ble Chief Justice Akhil Kureshi of the Tripura High Court in the matter of Kali Sankar Baidya vs The State Of Tripura [W.P(C) No. 289/2020], it was observed that medical reimbursement cannot be refused on the above-mentioned grounds. The petitioner was a head clerk in a district judiciary. In 2019, he noticed lesions on the left side of his nose and went for a check-up at the ENT specialist. Despite of taking treatment from the doctor, the lesions only aggravated and his condition became worse. In light of his deteriorating condition, on 30th November, the petitioner decided to go to Vellore in order to seek better medical advice and treatment and on the same date applied for a referral order for taking treatment outside the state. For the same, he had to depart to Vellore on 5th December 2019. He received a reply on 6th December 2019 to his letter regarding the referral order but by the time, he had already left the state.  In their reply, the Medical Board stated that there exists no provision that enables them to refer a patient outside the state without referring him to a medical officer and thus compensation was denied since the petitioner could no longer be produced for a referral order. The Court held that “Under such circumstances, it was not expected for the petitioner to have waited for the Medical Board to call him for personal appearance for grant of referral order which would delay his treatment. As things turned out, having gone to Vellore for investigations, the petitioner ended up undergoing entire treatment even without Page 4 of 9 returning home for which purpose his leave was sanctioned by the employer” The petitioner argued that firstly, the treatment that he was seeking was no available in the state. Secondly, given the urgency of his situation, it was not possible for him to wait for a reply to his letter and once the cancer was diagnosed he only returned home after getting treated for the same. Thus, the objection of the government regarding the urgency of treatment stood overruled as the petitioner also took the efforts to inform them well in advance regarding his travel to Vellore. The Court opined, “He, therefore, had every reason to rush for best medical advice and treatment for such life-threatening and dreaded disease. At such stage to expect him to apply, await and appear before the Medical Board and obtain a referral order before proceeding for the treatment is an unreasonable expectation”.  The Court was of the opinion that the government was acting too rigidly in dismissing the request for reimbursement and that the petitioner was right in taking the calculated risk and departing for Vellore.  Thus, the Court ordered the respondent to process the medical reimbursement bills of the petitioner and within a period of eight weeks from the day of the order being passed. A similar stand was taken by the court in the case of Sri Samar Bhusan Chakraborty Vrs. The State of Tripura & others [W.P(c) No.830/2019]. Click here to read the judgement

HIGH COURT OF TRIPURA W.P(C) No. 289 2020 Sri Kali Sankar Baidya S o. Late Birendra Baidya R o Vill Sishu Uddyan Para P.O & P.S: Belonia District South Tripura. … Petitioner(s). The State of Tripura represented by its Principal Secretary Department of Finance Government of Tripura P.O Kunjaban P.S New Capital Complex District West Tripura. The Legal Remembrancer & Secretary Department of Law and Parliamentary Affairs Government of Tripura P.O Kunjaban P.S New Capital Complex District West Tripura. District: South Tripura. Tripura P.O Kunjaban P.S New Capital Complex District West Tripura. The Standing Medical Board AGMC & GBP Hospital Represented by it’s Chairman Agartala P.O Kunjaban P.S New Capital Complex District West The District and Sessions Judge South Tripura District P.O & P.S: Belonia The Principal Secretary Health and Family Welfare Department Govt. of … Respondent(s). For Petitioner(s) For Respondent(s) : Mr. D. Sharma Addl. Govt. Advocate. Mr. Arijit Bhowmik Advocate. HON’BLE THE CHIEF JUSTICE MR. AKIL KURESHI O R D E R Petitioner has prayed for medical reimbursement of a sum of Rs.3 73 031 spent by him on his own treatment which the Government has refused to grant on the ground that the petitioner did not obtain prior referral order from the Medical Board before taking treatment from outside the State. The petitioner is a Head Clerk engaged in a district judiciary. In the year 2019 the petitioner started noticing lesions over the left side of the nose which became progressively aggressive. The petitioner consulted the local ENT specialist and skin specialist. However his condition deteriorated despite treatment. He wished to consult the doctor at a hospital at Vellore for which he also applied to the authority on 30th November 2019 seeking a referral order for taking treatment outside the State. Looking to the fast developments the petitioner had already in the meantime booked his passage for travel to a far distance. Unfortunately till his date of departure on 5th December 2019 there was no response from the respondents to his request for reference under letter dated 30th November 2019. It was only on 06.12.2019 the Medical Board conveyed to the petitioner that as per the prevailing norms there is no provision for referring the patients outside the State without appearing before the Medical Officer. Since in the meantime time the petitioner had already started his journey on 5th December 2019 the petitioner could not present himself for a referral order. It was at Vellore that the doctors detected that the petitioner was suffering from nasal passage cancer. This news must have come as a rude shock to the petitioner and his family members. The petitioner therefore stayed back at Vellor extended his leave and under took the full treatment for his nasal cancer total expenditure of which came to Rs.3 72 031 . He claims that as per the Government rules the same is to be reimbursed. Since the Government refused to do so he filed this petition. The reply of the Government is short and opposes the prayer of the petitioner on two grounds. Firstly that there was no referral order allowing the petitioner to take the treatment from outside the State and secondly there were no extra ordinary urgent grounds for the petitioner to have travelled outside the State for his treatment without presenting himself before the Medical Board. Both the objections of the Government need to be overruled. Firstly as noted the petitioner was struggling with aggressive infection on his nose which did not get cured despite his treatment at the hands of ENT specialist and skin specialist. The petitioner therefore desired to have further investigations and opinion from the experts. He therefore approached the authorities for permission to travel outside State. His request dated 29th November 2019 met with no immediate response. He could not wait any longer. He started his travel on 5th December 2019. It was only thereafter that the Medical Board conveyed to him that unless and until he is present a referral order cannot be issued in his favour. On 7th December 2019 the hospital at Vellore detected that the petitioner was suffering from cancer. Under such circumstances it was not expected for the petitioner to have waited for the Medical Board to call him for personal appearance for grant of referral order which would delay his treatment. As things turned out having gone to Vellore for investigations the petitioner ended up the undergoing entire treatment even without returning home for which purpose his leave was sanctioned by the employer. Under such circumstances to expect the petitioner to wait for the referral order is unreasonable. It is not even the case of the respondents that the specialized treatment needed for such cancer is readily available within the State. In other words going by the stand of the respondents if the petitioner had presented himself before the Medical Board and waited for long enough for the Medical Board to respond to his request for grant of referral order the same would have been granted. Only on that ground to deny the benefit of reimbursement of medical expenditure would be interpreting the policy of the Government too rigidly. Further the ground that there was no urgency in the petitioner departing for treatment also must be rejected. After having waited for long enough for the treatment prescribed by the local doctors to have effect and the treatment having failed to have desired effect the petitioner had to have a proper diagnosis and line of treatment. It is not as if the petitioner departed immediately without informing the employer or even the Medical Board. The petitioner did approach the Medical Board but could not give too long a time for Medical Board to respond. The petitioner had to take a calculated risk of departing without prior referral In a judgment dated 05.12.2019 in W.P(c) No.830 2019 in case of Sri Samar Bhusan Chakraborty Vrs. The State of Tripura & others this Court in similar circumstances had made following observations: ”It can thus be seen that initial symptoms of the disease were that the petitioner suffered rapid weight loss coupled with drastic depletion of level of Hemoglobin in his blood. The petitioner lost close to 20 kgs of weight in a short span. With these complaints when the petitioner approached the GBP Hospital the medical opinion was that the petitioner was suffering iron deficiency anemia. The petitioner thereafter noticed that he was passing blood in the stool upon which he once again approached the GBP Hospital on 11.11.2014 when he was advised colonoscopy which was performed on 19.11.2014. The colonoscopy revealed that the petitioner had possible colon cancer. Under the advice of friends and well wishers therefore he immediately rushed to the TATA Memorial Hospital at Mumbai for availing best treatment of cancer. He was operated on 09.12.2014 and 12 cycles of chemotherapy were administered between 28.01.2015 to 21.07.2015. The respondents do not dispute the medical expenditure. They only argue that because prior referral order from the Medical Board was not obtained such bills cannot be passed. In my opinion in facts of the present case such objection is totally invalid. As noted initially the petitioner suffered from weight loss and low hemoglobin in his blood. The fact that he was suffering from cancer was not detected at that stage. When he went back to the doctors with a complaint of passing blood in his stool colonoscopy was advised which when performed revealed that he was suffering from colon cancer. Considerable time thus was already lost between the petitioner reporting early symptoms of a possible serious ailment and actual detection of the fact that he was suffering from cancer. He therefore had every reason to rush for best medical advice and treatment for such threatening and dreaded disease. At such stage to expect him to apply await and appear before the Medical Board and obtain a referral order before proceeding for the treatment is an unreasonable expectation. The respondents do not even dispute that had he appeared before the Medical Board such reference would have been made. They only argue that the petitioner did not obtain a prior order of reference. The fact that on each subsequent occasion when the petitioner had the opportunity he applied to the Medical Board and referral orders were duly passed itself is an evidence of the justification of the petitioner obtaining medical treatment from outside State hospital. The Supreme Court in case of Surjit Singh vs. State of Punjab and others reported in2 SCC 336 had circumstances made following observations: “11. It is otherwise important to bear in mind that self preservation of one s life is the necessary concomitant of the right to enshrined in Article 21 of the constitution of India fundamental in nature sacred precious and inviolable. The importance and validity of the duty and right to self preservation has a species in the right of self defence in criminal law. Centuries ago thinkers of this Great Land conceived of such right and recognised Attention can usefully be drawn to verses 17 18 20 and 22 in Chapter 16 of the Garuda Puranain the words of the Divine: canpurushaartho na vidyate Tasmaaddeham dhanam rakshetpunyakar maani saadhayet Without the body how can one obtain the objects of human life Therefore protecting the body which is the wealth one should perform the deeds of merit. 18 yatnamaatishthejje vanbhaadraani pashyati One should protect his body which is responsible for everything. He who protects himself by all efforts will see many auspicious occasions in life. punastyaagamapi kushthaadiroginah The wise always undertake the protective for the body. Even the persons suffering from leprosy and other diseases do not wish to get rid of the body. 22 Aatmaiva yadi naatmaanama hitebhyo hitakarastasmaa daatmaanam taarayishyati If one does not prevent what is unpleasent to himself who else will do it Therefore one should do what is good to himself. 12. The appellant therefore had the right to take steps in self preservation. He did not have to stand in queue before the Medical Board the manning and assembling of which barefacedly makes its meetings difficult to happen. The appellant also did not have to stand in queue in the government hospital of AIIMS and could go elsewhere to an alternative hospital as per policy. When the State itself has brought Escorts on the recognised list it is futile for it to contend that the appellant could in no event have gone to Escorts and his claim cannot on that basis be allowed on suppositions. We think to the contrary. In the facts and circumstances had the appellant remained in India he could have gone to Escorts like many others did to save his life. But instead he has done that in London incurring considerable expense. The doctors causing his operation there are presumed to have done so as one essential and timely. On that hypothesis it is fair and just that the respondents pay to the appellant the rates admissible as per Escorts. The claim of the appellant having been found valid the question posed at the outset answered in the affirmative. Of course the sum of Rs.40 000 already paid to the appellant would have to be adjusted in computation. Since the appellant did not have his claim dealt with in the High Court in the manner it has been projected now in this Court we do not grant him any interest for the intervening period even though prayed for. Let the difference be paid to the appellant within two months positively. The appeal is accordingly allowed. There need be no order as to costs.” Similar view is expressed by this Court on number of occasions granting relief to the Government servants. Reference in this respect can be made to the following decisions: Judgment dated 18.08.2016 in case of Sri Kallol Roy vrs. The State of Tripura & others in WP(C) No.277 of 2016 judgment dated 04.05.2018 in case of Sri Uttam Pal vrs. The State of Tripura & others in WP(C) No.1479 of 2017 and judgment dated 27.03.2019 in case of Sri Subal Das vrs. The State of Tripura & others in WP(C) No.8918. In the result the impugned order dated 07.12.2018 is set aside. The respondents are directed to pay the petitioner’s medical bills in question as permissible. Such payment shall carry simple interest @ 7.5% from the date of completion of 3(three) months of presentation of bills till actual payment. Entire payment be made within a period of 2(two) months from today. Petition is disposed of accordingly.” Under the circumstances the respondents are directed to process the medical reimbursement bills of the petitioner and release the same to the extent as per the Government policy the same are payable. The entire exercise shall be completed within a period of eight weeks from today. any also stands disposed of. Petition is disposed of accordingly. Pending application(s) if CJ.

The deceased not being in a normal frame of mind persuades the Court to allow pre-arrest bail to the petitioner held for dowry death.: High court of Patna

The petitioner was taken into custody under Section 304-B IPC, “ Dowry death, where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or har­assment by her husband or any relative of her husband”, section 34 IPC, “Acts done by several persons in furtherance of common intention”. This present petition is in connection with Bodhgaya PS Case No. 229 of 2020 dated 06.07.2020. In the high court of Judicature at Patna, this judgment was given by honorable Mr. Justice Ahsanuddin Amanullah on the 17th of August 2021 in the case of Avinash Kumar @ Avinash Singh versus the state of Bihar criminal miscellaneous No. 37184 of 2020, Mr. Surendra Kumar Singh Represented as the advocate for the petitioner and Mr. Binod Kumar Upadhyay represented the state of Bihar as the additional Public Prosecutor, Ms. Smriti Prasad represented as the  Advocate for the informant, the proceedings of the court were held via video conference. The following are the facts of the case, the petitioner is accused of killing his wife the informant’s sister because of non-fulfillment of dowry demand. The counsel representing the petitioner held that the marriage took place in 2014, there has been no complaint about the demand for dowry before any authority ever since. In 2017 the petitioner purchased land in the name of his wife and mother which proves the misconception behind the case, there was no need for the petitioner to buy the plot in the name of his wife without taking money from the family of his wife. Further, the counsel held that the couple has a 5-year-old daughter which is another reason as to why the demand for dowry would have not taken place because parents focus on upbringing minor children with proper care and the presence of the mother is very vital so why would the husband commit such a crime? The deceased also worked as a teacher and made a living for herself. The deceased was going through depression as her certificate of B.Ed. from Rajasthan was found to be fake. And she was caught paying money to some agency for the fake certificate to continue her employment as a teacher. The counsel held that the petitioner has always supported his in-laws, he was taking care of the sister of the deceased a widow, and the informant’s son. The counsel held that after investigation the deceased was found hanging from the ceiling fan and the post-mortem report shows no other injury on any part of her body, there is no such evidence to prove that she was forced to commit suicide and the report proves that she died by committing suicide which has also been supported by the witnesses. The additional public prosecutor held that it is not controverted that the post-mortem report does not disclose any bodily injury and only a ligature marks around the neck. The counsel representing the informant also held that the petitioner is innocent and did not murder his wife and this case has been lodged on a misconception.

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 371820 Arising Out of PS. Case No. 229 Year 2020 Thana BODHGAYA District Gaya Avinash Kumar @ Avinash Singh @ Abhinash Singh age 34 years Male Son of Late Ajay Kumar Singh Resident of Village Bhagwanpur Suryamandal PS Bodh Gaya District Gaya The State of Bihar ... Petitioner s ... Opposite Party s For the Petitioner s For the State For the Informant Mr. Surendra Kumar Singh Advocate with Ms. Priyadarshini Sinha Advocate Mr. Binod Kumar No. 2 APP Ms. Smriti Prasad Advocate CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 17 08 2021 The matter has been heard via video conferencing 2. Heard Mr. Surendra Kumar Singh learned counsel for the petitioner Mr. Binod Kumar No. 2 learned Additional Public Prosecutor for the State and Ms. Smriti Prasad learned counsel for the informant 3. The petitioner apprehends arrest in connection with Bodhgaya PS Case No. 2220 dated 06.07.2020 instituted under Sections 304 B 34 of the Indian Penal Code 4. The allegation against the petitioner is of killing the sister of the informant who was the wife of the petitioner due to non fulfillment of demand of dowry Patna High Court CR. MISC. No.371820 dt.17 08 2021 5. Learned counsel for the petitioner submitted that the case has been instituted under misconception. It was submitted that the marriage took place in the year 2014 and though there is allegation of demand of dowry but no complaint was made before any authority prior to this case about such demand and further that the same will also be falsified from the fact that in the year 2017 the petitioner had bought a land jointly in the name of his wife and mother and there is no allegation in the FIR which is of the year 2020 that there was any demand of money for buying the said plot. It was submitted that had there been any demand of dowry then there was no occasion for the petitioner to buy the plot in the name of his wife without taking money from the family of his wife. Learned counsel submitted that the couple has a five years old daughter and all the more reason that such incident could not occur knowing fully well that for proper care and upbringing of the minor child presence of the mother is of utmost importance. Learned counsel submitted that the deceased was in fact bringing money to the family by working as teacher. It was submitted that there was some frustration and depression in the deceased as she had got a certificate of B.Ed. from some University in the State of Rajasthan of the year 2018 but when the petitioner had got it verified from the University it was found that Patna High Court CR. MISC. No.371820 dt.17 08 2021 the same was fake. It was submitted that because she had got the same after giving money to an agent she was insisting that she be allowed to obtain employment on the basis of such certificate taking the stand that everybody was doing so and nobody was getting caught. Learned counsel submitted that the petitioner in fact was very supportive of the family of the deceased as he was taking care of the widow sister of the deceased and the son of the informant himself. Summing up his arguments learned counsel submitted that the informant has later realized his mistake and has filed compromise petition before the court below that due to confusion the case had been lodged 6. Learned counsel submitted that it has come during investigation that body of the deceased was found hanging from the ceiling fan which obviously indicates that she had committed suicide as in the postmortem report no other injury on any part of the body has been found which is impossible since if she had been forcibly hanged from the fan there would have been signs of resistance which have not been found. Further it was submitted that the five years old daughter of the petitioner has also stated during investigation that the petitioner whose house it at Bodh Gaya had gone to his place of work at Gaya when the incident Patna High Court CR. MISC. No.371820 dt.17 08 2021 7. Learned counsel further submitted that the postmortem report reveals that death was due to hanging which has also been supported by the witnesses during investigation and no other injury on the body has been found. It was submitted that the word used in the postmortem is that death is due to strangulation but cause of strangulation is actually hanging as only a faint dark brown ligature mark is found above the thyroid running upwards and had there been forceful strangulation then there would have been some external injury as it not possible that the deceased would have allowed anyone to forcibly strangulate her without offering resistance 8. Learned APP from the case diary submitted that the postmortem report does not disclose any bodily injury on the deceased except for ligature mark around the neck 9. Learned counsel for the informant submitted that he has filed a compromise as he was confident that his sister was not murdered and the petitioner is innocent. She also took a stand that such compromise was not under any duress and was voluntary after coming to know of the truth 10. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties the Court finds that the postmortem report simply disclosing death Patna High Court CR. MISC. No.371820 dt.17 08 2021 due to hanging without any other injury on the body as also the fact that there is a five years old daughter and there being no complain in the past and the deceased also working as a teacher bringing money to the family and most importantly the informant himself filing a compromise stating that due to confusion and anger the case was filed and there being material to indicate that a fake degree showing the deceased to have passed B.Ed. may also suggest of the deceased not being in a normal frame of mind persuades the Court to allow the prayer for pre arrest bail 11. Accordingly in the event of arrest or surrender before the Court below within six weeks from today the petitioner be released on bail upon furnishing bail bonds of Rs. 25 000 twenty five thousand) with two sureties of the like amount each to the satisfaction of the learned Chief Judicial Magistrate Gaya in Bodhgaya PS Case No. 2220 subject to the conditions laid down in Section 438(2) of the Code of Criminal Procedure 1973 and further that one of the bailors shall be a close relative of the petitioner andthat the petitioner shall co operate with the Court and police prosecution. Failure to co operate shall lead to cancellation of his bail bonds 12. It shall also be open for the prosecution to bring any violation of the foregoing conditions of bail by the petitioner to Patna High Court CR. MISC. No.371820 dt.17 08 2021 the notice of the Court concerned which shall take immediate action on the same after giving opportunity of hearing to the 13. The petition stands disposed of in the (Ahsanuddin Amanullah J

While admitting a petition U/S.433 of Companies Act, 1956, it is not necessary to establish that the entire claim is undisputed: Supreme Court of India

Whether the defense of a Company is in good faith or as to whether it is of a substance and as to whether it is likely to succeed in point of law and as to whether the company adduces prima facie proof of the facts on which defense depends, would depend upon the facts of each case. This was held in SHITAL FIBERS LTD. V. INDIAN ACRYLICS LIMITED[CIVIL APPEAL NO. 1105 OF 2021] in the Supreme Court of India by division bench consisting of JUSTICE R.F. NARIMAN, JUSTICE B.R. GAVAI, and  JUSTICE HRISHIKESH ROY. The facts are that the appellant had entered into an agreement with the respondent. For which payment was not made by the appellant. On the basis, the respondent filed a Company Petition seeking winding up, which learned Company Judge had admitted. The appellant had appeared in the High Court, which was dismissed. This appeal has been filed with regard to interest at the rate of 24% per annum claimed by the respondent. The counsel for the petitioner contended that the claim of the respondent could not stand even if it was made under Order XXXVII of CPC. That requirements U/S.433(e) and (f) of the Companies Act, 1956 stood on a higher pedestal, and as such, the learned Company Judge has erred in admitting the petition and the claim of the respondent for interest does not stand. The counsel for the respondent submitted that demand notice under Section 434 read with S.433 (e) of the said Act was duly served upon the appellant, no specific defense was taken. That no interference would be warranted in the concurrent findings of fact. The court made reference to the Apex court judgment in Madhusudan Gordhandas & Co. vs. Madhu Woollen Industries Pvt. Ltd., “Where the debt is undisputed the court will not act upon a defence that the company has the ability to pay the debt but the company chooses not to pay that particular debt, see Re. A Company. [94 SJ 369] Where however there is no doubt that the company owes the creditor a debt entitling him to a winding up order but the exact amount of the debt is disputed the court will make a winding up order without requiring the creditor to quantify the debt precisely See Re Tweeds Garages Ltd. [1962 Ch 406] The principles on which the court acts are first that the defence of the company is in good faith and one of substance, secondly, the defence is likely to succeed in point of law and thirdly the company adduces prima facie proof of the facts on which the defence depends.” The court also referred to the judgement of Vijay Industries vs M/S. Natl Technologies, wherein the Apex Court had made the following observations, “ In the present case, on the date of filing of the application, dues in respect of at least a part of the debt which was more than the amount specified in Section 433 [sic Section 434(1)(a)] of the Companies Act was not denied. It is not a requirement of the law that the entire debt must be definite and certain”

order passed by the Division Bench of the Punjab Haryana High Court in Company Appeal No. 58 of 2015 dated 29.4.2016 arising out of the order passed by the learned Company Judge of the said Court in Company The facts in brief giving rise to the present in village Harkrishanpura District Sangrur. There was a and the respondent ­ M s Indian Acrylics Limited under which the respondent was to supply acrylic yarn to the supply of raw material commenced from 20.4.2007. The respondent supplied material worth Rs.81 98 014.45. There such a sum of Rs. 6 22 073 ­ was credited by the respondent in the account of the appellant on account of material returned and also a credit note of Rs.5 00 000 ­ respondent appellant had made a payment of Rs.61 83 218 ­. However there was an outstanding balance of Rs.8 92 723 ­ as on 28.7.2008. Since despite repeated requests balance amount was not paid the despite notice being duly served on the appellant the respondent filed the aforesaid Company Petition seeking admitted debts. The learned Company Judge vide order while doing so the learned Company Judge observed that since the appellant was an on­going concern an Being aggrieved thereby the appellant preferred Court while issuing notice stayed the publication of the admission notice subject to the appellant paying the amount in question by 31.12.2015. Accordingly the Though the Division Bench of the High Court and as such there was no question of directing the respondent to repay the amount since the appellant had with regard to interest at the rate of 24% per annum is However the Division Bench clarified that the dismissal of the appeal was without prejudice to the respondent’s behalf of the appellant submits that the defence of the specific case of the appellant that on account of the who was entitled to receive the damages from the respondent. He submitted that in view of the specific defence which could not be said to be a moonshine defence Company Petition. He submitted that the claim of the proceedings under Order XXXVII of the Code of Civil Procedure 1908. He submitted that requirements under Section 433(e) and of the Companies Act 1956 same reason the Division Bench has also erred in not Shri Nehra further submitted that since there balance delayed payment the direction issued by the in Mediquip Systems Ltd. vs. Proxima Medical System Gmbh1 Vijay Industries vs. NATL Technologies Ltd.2 and IBA Health Private Limited vs. Info­ behalf of the respondent submits that since the appellant do so it was required to issue statutory demand notice 17 SCC 42 23 SCC 527 310 SCC 553 the appellant and also replied to. Apart from making a a matter of record no specific defence was taken. He stand taken by it before the learned Company Court as notice. He therefore submits that the learned Company rightly held that the defence of the appellant was not a This Court in the case of Gordhandas & Co. vs. Madhu Woollen Industries Pvt “20. Two rules are well settled. First if the debt is bona fide disputed and the defence is a substantial one the court has dismissed a petition for winding up where the creditor claimed a sum for goods sold to the company and the 43 SCC 632 company contended that no price had been agreed upon and the sum demanded by the creditor was unreasonable. LR 19 Eq a creditor who claimed payment of an agreed sum for work done for the company when the company contended not allowed. 35 Beav 21. Where the debt is undisputed the particular debt see Re. A Company.as on 8.5.2008 after of Rs.26 22 073.00 as mentioned In reply to the said notice the appellant has it is a matter of records and it clearly shows about the business it is a matter of record. However there is nothing due to your client from my client rather on the contrary is true as mentioned in and does not depict the correct client himself had been coming to my client and settled the amount and agreed to return Rs. 25 Lacs Para no.7 of your notice is wrong and incorrect. Detailed reply has already been given in previous in paragraph 6 it is stated that the respondent had himself the Company Petition it would reveal that the main contention of the appellant was that it was a running raw material by the respondent. However with effect from 26.6.2007 it was noticed that raw material supplied was defective and the goods which were sold in the market complaints. It was stated that the goods which were supplied by the respondent vide invoices dated 26.6.2007 the appellant company using the said raw material were returned by the dealers and importers Company had returned the defective raw material to the respondent Company which remained unused. It was credited an amount of Rs.6 22 073 ­ in the account of the appellant. It is further stated that after various meetings appellant on account of supply of defective material by issuing a credit note of Rs.5 lakh. It was further stated that as per the account of the appellant an amount of Rs.53 648 ­ was receivable from the respondent after Company written by it to the petitioner Company regarding statutory notice issued by the petitioner Company the stand Rs.25 00 000 ­ supplied by the petitioner Company to the respondent company was lying Rs.25 00 000 ­ credit note of only Rs.5 00 000 ­ was given. against a claim of Rs.8 92 723 ­ Rs.11 07 297 ­ is due from the petitioner company to the respondent company on account of yarn supplied. Demand of the aforesaid amount was raised. In is altogether different. No doubt issue regarding defective material was raised however it was stated that the entire material supplied by the petitioner company was used as a result of which the product was defective which was not marketable and on that account the respondent company suffered losses. products were sold in the market which were returned back. No communication has been referred to which was addressed by the respondent company to the petitioner company pointing out note of Rs.5 00 000 ­ in May 2008 the petitioner company agreed to Rs.8 55 370.65 Rs.8 66 788.29 Rs.9 07 891.19 Rs.8 84 726.17 Rs.35 14 776.3 Rs. 6 22 073.00 Rs.14 46 351.3 Rs.15 00 000.00 Rs.28 92 703.3 Balance payable Rs.14 46 352.0 evident that now the stand is that the respondent­ company is to recover a sum of Rs.53 648 ­ from the petitioner company whereas to the tune of Rs.11 07 297 ­. It is reply to the petition the story that settlement between the parties had an after thought just to defeat the when reply to the statutory notice do not find that the defence raised by the respondent company is reasonable as the debt cannot be been paid despite statutory notice and even pendency of the present deserves to be admitted. Ordered with regard to the products of the respondent being defective in quality was by way of an after­thought of such contention. It was further found that whereas in reply to the notice the appellant had claimed that it was entitled to recover an amount of Rs.11 07 297 ­ in the calculations given in written statement the amount is This finding of fact is affirmed by the Division inference. Indeed the grant of credit would also indicate that the respondent fairly acknowledged the defects when there were any and with the contractual specifications It is necessary therefore to examine the other surrounding facts and circumstances to judge the rival dispute about the quality and the same was acknowledged by the respondent it was reflected in its were any other defects and in any event if the appellant’s case was that the goods were defective it would have recorded the same in some manner or the other. The appellant however contends that The appellant’s case has varied between its reply to the statutory The respondent served a statutory notice dated 25.08.2008 The appellant’s reply dated 10.09.2008 to the statutory notice much less an agreement by the respondent to pay the appellant for the alleged defective goods. This belies the There is yet another fact which clearly disentitles the appellant to goods. The appellant admittedly retained the goods and in fact used the goods namely synthetic yarn such as blankets. Having done so the appellant cannot refuse to pay for the same. If the goods were defective the appellant ought to have rejected the same. Having the respondent it is now not even the appellant nowhere raised the contention that its customer who purchased the final product raised grievance Moreover the appellant has not furnished any details regarding its transactions with its customers involving the sale of is nothing to indicate that the appellant suffered any damages on account thereof or that the no bona fide dispute raised by the in respect of It is thus amply clear that both the learned Company Judge as well as the Division Bench upon regard to the quality of the material supplied by the the respondent and it was reflected in its conduct by the grant of credit. It observed that the respondent had fairly reasonable to presume that if there were any other defects it would have recorded the same in some manner or the other. The Division Bench further found that it was difficult to accept the case of the appellant that the It further found that in the reply to the statutory notice appellant that the goods manufactured utilizing the defective raw material supplied by the respondent being facts it was also found that the appellant had taken contradictory stand in order to defeat the claim of the respondent. It was also concurrently found that the appellant had failed to adduce prima facie proof of facts Insofar as the contention of the appellant that Insofar as the reliance placed by the learned learned single judge that a debt is prima facie due and such on facts the said judgment would not be applicable to In the case of Vijay Industries relied by the appellant the learned single judge after finding that a petition. However in appeal the Division Bench set aside the order of the learned single judge. This Court while “41. In the present case on the date of at least a part of the debt which was more than the amount specified in requirement of the law that the entire debt must be definite and certain. The Division Bench of the High Court proceeded on the basis that the entire the company petition that the petitioner had come to know that obligations and as therefore become commercially insolvent the petitioner has not taken necessary care to prima facie establish the same. The only piece of evidence available on the side of the petitioner is that the respondent is indebted to the petitioner a sum a moment that the respondent paid the said amount to the respondent neglected to pay the particularly when of payment of interest on the no such written agreement in between the parties for such facts of the matter formulated the valid ground for admission of the contain at the foot a clause for payment of interest on delayed payments. Such a clause even judgment of the Rajasthan High cannot constitute an agreement between the parties for payment of interest. The legal position thus ground that it is unable to pay its the company is ascertained and requisite ‘neglect to pay’ as envisaged under clause of sub­ when the company bona fide the defence taken up by it is of “Having regard to the facts and circumstances of the instant case we are of the considered view that the claim of the petitioner towards interest on delayed payments since not covered by any specific se is a contentious issue and the dispute as regards the payment of therefore legitimately be concluded pay. The petitioner who pleaded the trade practice payments made shall be adjusted towards interest first and balance if any shall be adjusted towards principal later of any such trade practice appropriating the amounts towards towards principal next becomes inappropriate in which event the claim of the petitioner that the respondent is liable to pay Rs 65 15 947 basing upon such calculations cannot be accurate The total amount claimed by the matter becomes doubtful and not definite. It is still got to be ascertained if the claim of the respondent were to be considered that there has been no agreement for payment of interest on delayed cannot be presumed prima facie reason firstly because the Division not proved by cogent evidence secondly only after the company petition is admitted and thirdly issuance of After observing the aforesaid this Court further clearly held that it is not necessary while admitting the fail to understand as to how the said judgment of this facts of the present case. As a matter of fact in the said issued a direction to grant the interest as claimed by the referred to the said issue. The Division Bench therefore case of IBA HealthPrivate Limited would the said case it will be relevant to refer to the following and “29. On a detailed analysis of the well as the compromise deed and the in the company petition which is substantial in nature. The Company Court while exercising its powers under Act 1956 would not be in a position to of settlement and the compromise deed which calls for detailed investigation of facts and examination of evidence and calls for interpretation of the various terms and conditions of the deed of settlement and the compromise entered This Court held that the company court while exercising its powers under sections 433 and 434 of the who was at fault in not complying with the terms and conditions of the deed of settlement and the compromise deed. It was found that in the said case a detailed investigation of facts and examination of evidence and settlement and the compromise entered into between the parties was necessary in adjudicating the claim which the said Act. In the said case it was also noticed that the claim was in respect of contingent debt and that the disputes between the parties had been compromised in that the defence of the appellant could not be said to be We are therefore of the considered view that there is no merit in the appeal. The same is accordingly dismissed. There shall be no order as to costs. Pending applications if any shall stand disposed of

The removal of a cause from a court of inferior to one of superior jurisdiction, for the purpose of obtaining a review and retrial.”: High Court of Sikkim  

The procedural right of the second appeal is conferred by this section on either of the parties to a civil suit who has been adversely affected by the decree passed by a civil court and the same issue was held in the judgement passed by a single bench judge HON’BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE. In the matter, Ashok Kumar Subba versus  Bimal Kumar Jain & Another  [RSA No.03 of 2018 ] dealt with an issue mentioned above. Learned Counsel Mr Sajal Sharma opening his arguments for the Appellant submitted that the Appellant on being impleaded as a party to the Title Suit, as Defendant No.2, on his prayer, in his Written Statement and Counter-Claim averred that he was the absolute owner of the land which he had purchased and constructed a five and a half storeyed building which houses the suit property as well. That, Defendant No.1-the Respondent No.2 (herein) had no independent income as established by the document, Annexure D2-1, her Affidavit, disclosing that she was a housewife and was thus not in a position to either purchase land or construct a building thereon. That, Respondent No.2 failed to file any response to the Appellant‟s Counter-Claim and to deny his averments, she merely filed an Evidence-on-Affidavit in an attempt to establish that she was the owner of the land and building in which the suit property was housed. Learned Counsel Mr S.S. Hamal, for Respondent No.1, per contra, contended that both the Courts below had come to a concurrent finding which brooks no interference in consideration of the failure of the Appellant to fortify his claims of ownership of the land and the building on it. It is his contention that the dispute between the Respondent No.2 and Respondent No.1 had, in fact, already been settled when the Appellant sought to be impleaded as a party to the Title Suit at that juncture, claiming ownership of the suit property, sans documents of registration. That, it is an admitted fact that the entire building was registered in the name of Respondent No.2 as also the land on which it stood, thereby indicating her ownership. She had sold the suit premises to Respondent No.1. That, although subsequently, a claim of the building being Benami property was raised by the Appellant, he failed to prove this aspect in terms of Section 2 of the Prohibition of Benami Property Transactions Act, 1988, hence his case requires no consideration. The court perused the facts and arguments presented The Appellant has not drawn the attention of the Learned Courts below or this Court to any document relied on by him to reveal a paper trail of his income and the subsequent transactions. In the absence of any documentary evidence, the mere statement of the Appellant that he was the purchaser of the property cannot be treated as gospel truth neither can the property be said to be Benami in view of the nonfulfilment of the afore-extracted provisions of law. Click here to read the judgment

THE HIGH COURT OF SIKKIM : GANGTOK Civil Appellate Jurisdiction) DATED : 7th March 2022 SINGLE BENCH: THE HON’BLE MRS. JUSTICE MEENAKSHI MADAN RAI JUDGE RSA No.018 versus Ashok Kumar Subba Bimal Kumar Jain & Another Appeal under Section 100 of the Code of Civil Procedure 1908 Mr. Sajal Sharma Advocate for the Appellant. Mr. S.S. Hamal Advocate for the Respondent No.1. Mr. Vivek Anand Basnett Advocate for the Respondent No.2. JUDGMENT Meenakshi Madan Rai J. In this Regular Second Appeal the following substantial questions of law were formulated for determination „A. Whether a Court can pass a Decree declaring a party to be the absolute owner of the suit premises and give him right title and interest over the same by virtue of a registered document which is an Agreement for Sale B. Whether the non filing of a Written Statement by the Defendant No.1 to the Counter Claim filed by the Defendant No.2 would constitute admission by the Defendant No.1 C. Whether the prayer for declaration of title of the suit property in favour of the Plaintiff is barred by Limitation when the Plaintiff admits that a Sale Deed was executed and presented for registration more than five years before the date of filing of the original Suit ‟ At the outset when the matter was taken up for hearing by this Court Learned Counsel for all the parties in mutual agreement submitted that the only substantial question that was required for determination herein was “Question No.B” supra. In light of the said submissions the discussions and decision of this Court shall hereafter be confined to the substantial question of law framed in “B” reflected supra. RSA No.018 2 Ashok Kumar Subba vs. Bimal Kumar Jain & Anr. 3.(i) Learned Counsel Mr. Sajal Sharma opening his arguments for the Appellant submitted that the Appellant on being impleaded as a party to the Title Suit as Defendant No.2 on his prayer in his Written Statement and Counter Claim averred that he was the absolute owner of the land which he had purchased and constructed a five and a half storeyed building which houses the suit property as well. That the Defendant No.1 the Respondent No.2 had no independent income as established by the document Annexure D2 1 her Affidavit disclosing that she was a housewife and was thus not in a position to either purchase land or construct a building thereon. That the Respondent No.2 failed to file any response to the Appellant‟s Counter Claim and to deny his averments she merely filed an Evidence on Affidavit in an attempt to establish that she was the owner of the land and building in which the suit property was housed. That her lack of response to the Counter Claim by way of written averments tantamounts to admission of the stand of the Appellant. Consequently her Evidence on Affidavit in which she asserts that she is the absolute and rightful owner of the suit property is beyond the ambit of consideration by this Court. That apart Learned Counsel sought to convince this Court that the Appellant for his part was a businessman with income accruing from his lottery business and other business sources. The lottery business admittedly was registered in the joint names of the Appellant and the Respondent No.2. Counsel for the Appellant admitted that there is no paper trail of the income of the Appellant from any source or investments made by him to establish his financial ability to purchase the land and building claimed by him as benami property however that in the absence of written averments by Respondent No.2 RSA No.018 3 Ashok Kumar Subba vs. Bimal Kumar Jain & Anr. contradicting his stand reliefs as sought by him in the Counter Claim ought to be granted to him. Learned Counsel Mr. S.S. Hamal for the Respondent No.1 per contra contended that both the Courts below had come to a concurrent finding which brooks no consideration of the failure of the Appellant to fortify his claims of ownership of the land and the building on it. It is his contention that the dispute between the Respondent No.2 and the Respondent No.1 had in fact already been settled when the Appellant sought to be impleaded as a party to the Title Suit at that juncture claiming ownership of the suit property sans documents of registration. That it is an admitted fact that the entire building was registered in the name of the Respondent No.2 as also the land on which it stood thereby indicating her ownership. She had sold the suit premises to Respondent No.1. That although subsequently a claim of the building being benami property was raised by the Appellant he failed to prove this aspect in terms of Section 2 of the Prohibition of Benami Property Transactions Act 1988 hence his case requires no consideration. iii) Learned Counsel for the Respondent No.2 while reiterating the submissions made by Learned Counsel for the Respondent No.1 contended that the claim of benami transaction raised by the Appellant is not buttressed by law. That during the cross examination of the Appellant he had admitted that the Respondent No.2 took cash credit facility of above Rupees One Crore and that she alone had repaid the Loan taken for purchase of the land and construction of the building. In the face of such admission nothing further remains for determination as the Appellant‟s source of income has not been divulged. That to the RSA No.018 4 Ashok Kumar Subba vs. Bimal Kumar Jain & Anr. contrary Exhibit D1 1 reveals the registration of a Firm “Golma Trading Agency” in the name of the Respondent No.2 and establishes the fact of her independent income. Exhibit D1 3 is the Trade License in her name and Exhibit D1 4 reveals that she was running a hotel in the said building besides income accrued to her from the lottery business in which she was a 50% stakeholder which has been admitted by the Appellant. Relying on the ratio of the Delhi High Court in Brij Prakash Gupta vs. Ashwini Kumar1 Learned Counsel contended that where Evidence on Affidavit is filed without pleadings by one party the objecting party has to put forth its objections in writing this was not complied with by the Appellant. That although in the Counter Claim the Appellant avers that he purchased the entire building however strangely he sought for only a declaration that he is the absolute owner of the scheduled property which is a flat covering an area of 21 feet x 21 feet. That as no documents have been filed to establish the income of the Appellant nor any documents exhibited to indicate his purchase of the suit property or his ownership of it the Appeal deserves a dismissal. The submissions of Learned Counsel for the parties were heard at length and considered. Pleadings evidence as also all documents relied on by the parties and the impugned Judgment has been perused. 5.(i) The factual background of the dispute is that the Respondent No.1 in this Appeal filed a Title Suit for Declaration Injunction and Consequential Reliefs valued at Rs.10 000 only being Title Suit No.4113 against the Respondent No.2 herein as the Defendant No.1 as also the 1AICdated 06.02.2020] RSA No.018 5 Ashok Kumar Subba vs. Bimal Kumar Jain & Anr. United Bank of India Gangtok Branch as the Defendant No.2 the Authorized Officer of the United Bank of India Gangtok Branch as the Defendant No.3 and the District Magistrate East as the Defendant No.4. Before the Learned Trial Court R 1 contended that R 2 had constructed a five storeyed RCC building on a plot of land measuring 0.05 acres in Gangtok. The suit premises measuring 21 feet x 21 feet situate in the building was sold to him by R 2 for a consideration value of Rs.19 80 000 only. An Agreement for Sale Exhibit 1 dated 27.03.2008 was drawn up between the R 1 and R 2 and duly registered before the Office of the Sub Registrar Gangtok East Sikkim however the Sale Deed document remained unregistered due to the File being misplaced in the said Office. From 2008 onwards R 1 remained in continuous peaceful possession and enjoyment of the suit premises. On 14.03.2013 he learned that a Notice was served on R 2 by the Office of the Defendant No.4 under Section 13(2) of the SARFAESI Act 2002. Pursuant thereto Defendant No.3 served a Notice on R 2 informing her that the Defendant No.4 had advised them to take physical possession of the building which she with her tentants was to vacate by 20.03.2013. R 1 claimed that as he had purchased the suit premises bona fide hence the Notice issued under the SARFAESI Act 2002 to R 2 was not applicable to him. His prayers in the Plaint inter alia sought a declaration that the Agreement of Sale dated 27.03.2008 is a valid and legal Agreement binding on the R 2 and the Appellant impleaded as Defendant No.2 in the Title Suit vide an amended Plaint. RSA No.018 6 Ashok Kumar Subba vs. Bimal Kumar Jain & Anr. iii) The R 2 filed her Written Statement denying and disputing the claims made by R 1. Her stand was that Exhibit 1 was only an Agreement for Sale and the property in question had not been sold outright. The entire amount of Rs.19 80 000 Rupees nineteen lakhs and eighty thousand) only had not been paid by R 1 to her. She also made a Counter Claim wherein she contended that R 1 was a non Sikkimese and not permitted to purchase the suit property rendering Exhibit 1 a void document. That consequently he was instead required to pay monthly rent at the rate of Rs.30 000 only and enter into a fresh Tenancy Agreement. She inter alia prayed that Exhibit 1 be declared null and void. iv) The Appellant impleaded as Defendant No.2 in the Title Suit claimed to have purchased the land and constructed the building on it with income from his lottery business and was its owner. He denied the ownership of R 2 over the land and building and the suit property contending that she had no wherewithal to purchase the properties. According to him Exhibit 1 was void as R 1 a non Sikkimese was prohibited from purchasing tribal land the community to which the Appellant belonged. That in the absence of a registered Sale Deed R 1 was in illegal occupation of the suit premises. He also claimed to be the karta of his family thus R 2 could not have alienated the property without his consent. He thereby sought a Decree declaring him as the absolute owner of the Scheduled property and recovery of possession thereof with a Decree for eviction against R 1 from the Scheduled property. On the basis of the pleadings of the parties the following Issues were settled `for determination by the Learned Trial Court RSA No.018 7 Ashok Kumar Subba vs. Bimal Kumar Jain & Anr. „1) Whether the Defendant No.1 is the absolute owner of suit property being the purchaser of the same with her own monetary source 2) Whether the document for sale‟ dated 27.03.2008 between the plaintiff and defendant no.1 is null and void and against the law of the land 3) Whether the suit property was purchased by defendant no.2 from his earnings in the Benami of his wife def. no.1 onus on defendant no.2) 4) Whether the defendant no.2 has locus standi to file the counter claim against the plaintiff with respect to the suit premises Issue No.3 was taken up first for convenience and the Learned Trial Court observed that the Appellant was unable to prove that the suit property was purchased by him from his earnings benami for the R 2. In Issue No.4 the Learned Trial Court observed that apart from the fact that the Appellant is the husband of R 2 there were no documents to indicate that he had purchased the land and constructed the five and a half storeyed RCC building thereon this Issue was decided accordingly. In Issue No.1 the Learned Trial Court opined that the Appellant simply stating that he had purchased the property in the name of the R 2 would not suffice to establish his ownership as registered documents existed in the name of the R 2. For Issue No.2 while discussing Revenue Order No.1 of 1917 the Learned Trial Court observed that the Order provides that sale shall not be made of “Bhutia Lepcha” land to any other community but did not include „Tribal‟ in it. That there was no illegality in Exhibit 1 conferring ownership on the R 1 neither was he barred from purchasing and holding the suit property hence the Issue stood decided against the Appellant. The Counter Claim of the Appellant stood dismissed and R 1 was allowed the reliefs claimed. The Appellant herein was also the Appellant before the Learned First Appellate Court which agreed with the findings of the Learned Trial Court in all the Issues and concluded that there was RSA No.018 8 Ashok Kumar Subba vs. Bimal Kumar Jain & Anr. no infirmity impropriety and illegality in the Judgment and Decree rendered by the Learned Trial Court hence the instant Appeal. 7.(i) Taking up the substantial question of law “B” formulated for determination herein in the first instance Order VIII Rule 6A of the CPC provides for filing of Counter Claim by the Defendant which the Appellant has done in the Title Suit. However once this right has been exercised it is the duty of the Defendant to produce documents upon which relief is claimed or relied upon by him as is evident from the provisions of law extracted hereinbelow. Order VIII Rule 1A(1) of the CPC reads as under “1A. Duty of defendant to produce documents upon which relief is claimed or relied upon by him.—(1) Where the defendant bases his defence upon a document or relies upon any document in his possession or power in support of his defence or claim for set off or counter claim he shall enter such document in a list and shall produce it in Court when the written statement is presented by him and shall at the same time deliver the document and a copy thereof to be filed with the written statement. 2) 3) 4) ” Admittedly the Appellant has filed no supporting documents of ownership although he has relied on documents Exhibit D2 1 to Exhibit D2 106 these are largely correspondence pertaining to the lottery business and accounts thereof which in no way indicate either his ownership over the disputed property or his individual income or the specifics of the income from which the land and building was purchased by him. The Appellant on the basis of a document which was not exhibited would have this Court assume that R 2 had no ostensible means of an independent income while in the same breath in his evidence admitting that the lottery business was registered in their joint names and income accrued to the business. This would lead to the RSA No.018 9 Ashok Kumar Subba vs. Bimal Kumar Jain & Anr. inevitable assumption as urged by Learned Counsel for the R 2 that she had an equal share in the proceeds of the business. While addressing the argument of Learned Counsel for the Appellant that by non filing of Written Statement by R 2 to the Counter Claim of the Appellant she has admitted the Appellant‟s averments this Court is aware of the legal position that a Written Statement must deal specifically with each allegation of fact in the Plaint. When a Defendant denies any such fact he cannot do so evasively but must respond to the allegation specifically. Should the denial of fact not be specific but evasive the fact shall be taken to be admitted. The same rule applies in the case of an assertion made in a Counter Claim and a denial in the Written Statement to the Counter Claim as apparent from the provisions of Order VIII Rule 3 and Order VIII Rule 6G of the CPC. However I hasten to add that it is also established law that the Plaintiff or the Defendant filing a Counter Claim) has to establish their own case by a preponderance of probability and cannot rely on the weaknesses of the case of the opposite party his case must stand on its own strength. The Appellant has failed on this count. iii) It is an admitted fact that R 2 chose not to file a Written Statement to the Counter Claim of the Appellant and thus did not comply with the mandate of law. It is also an admitted fact that the Appellant in support of his Written Statement and Counter filed Exhibit D2 1 to Exhibit D2 106. No reference whatsoever was made to these documents during the course of arguments before this Court. In any event the Exhibits reveal that they are of no assistance to the Appellant even to establish a prima facie case. Annexure D2 1 being a document which the Appellant chose not to exhibit cannot be relied on or considered by this RSA No.018 10 Ashok Kumar Subba vs. Bimal Kumar Jain & Anr. Court. The Appellant has filed no document to fortify his claim of purchase and ownership of the building and the land on which it stood. On this point the Hon‟ble Supreme Court in Union of India and Others vs. Vasavi Cooperative Housing Society Limited and Others2 held inter alia as follows “19. The legal position therefore is clear that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it irrespective of the question whether the defendants have proved their case or not. We are of the view that even if the title set up by the defendants is found againstin the absence of establishment of the plaintiff s own title the plaintiff must be non suited.” iv) Emphasis supplied) It would now be relevant to consider the consequence of non filing of defence either by way of Written Statement to a Plaint or Written Statement to a Counter Affidavit. In Modula India vs. Kamakshya Singh Deo3 the Hon‟ble Supreme Court was considering the nature and scope of the rights available to a Defendant whose “defence has been struck out” in the particular context of the West Bengal Tenancy Act 1956. The consequences of non filing of a Written Statement under the CPC was also considered. It was held inter alia as under “19. To us it appears that the basic principle that where a plaintiff comes to the court he must prove his case should not be whittled down even in a case where no defendant appears. It will at once be clear that to say that the court can only do this by looking at the plaintiff s evidence and pleadings supplemented by such questions as the court may consider necessary and to completely eliminate any type of assistance from the defendant in this task will place the court under a great handicap in discovering the truth or otherwise of the plaintiff s statements. For after all the court on its own motion can do very little to ascertain the truth or otherwise of the plaintiff s averments and it is only the opposite party that will be more familiar with the detailed facts of a particular case and that can assist the Court in pointing out defects weaknesses errors and inconsistencies of the plaintiff s case. 20. We therefore think that the defendant should be allowed his right of cross examination and arguments. But we are equally clear that this right should be subject to certain important safeguards. The first of these is that the defendant cannot be allowed to lead his own evidence. ” 2 AIR 2014 SC 937 3 AIR 1989 SC 162 RSA No.018 11 Ashok Kumar Subba vs. Bimal Kumar Jain & Anr. It was concluded inter alia as follows a) b) plaintiff s case. to cross examine the plaintiff s witnesses and to address argument on the basis of the “24. the defendant subject to the exercise of an appropriate discretion by the court on the facts of a particular case would generally be entitled: We would like to make it clear that the defendant would not be entitled to lead any evidence of his own nor can his cross examination be permitted to travel beyond the very limited objective of pointing out the falsity or weaknesses of the plaintiff s case. In no circumstances should the cross examination be permitted to travel beyond the legitimate scope and to convert itself virtually into a presentation of the defendant s case either directly or in the form of suggestions put to the plaintiff s witnesses. 25. For reasons mentioned above we allow the appeal and restore the suit before the trial Judge for being proceeded with in the light of the above conclusions. We direct that the costs of this appeal will form part of the costs in the suit and will abide by the result thereof.” Emphasis supplied) Although R 2 failed to file her response to the Counter Claim of the Appellant however her defence was not struck down there is no order for proceeding ex parte against her. The ratio above gives R 2 an indefeasible right to cross examine the Appellant which was rightly exercised by her. However in light of the limited scope provided to R 2 by the Judgment supra by virtue of which R 2 would not be entitled to lead any evidence of her own and is also required to limit her cross examination to the extent of pointing out the falsity or weaknesses of the Appellant‟s case we may now traverse the cross examination of the Appellant while he deposed as Defendant No.2 in the Title Suit. He has admitted in his cross examination conducted by Learned Counsel for the R 2 that “ It is not a fact that there are no documents to show that I had purchased the suit property and constructed the building thereon. …..” Pausing here for a moment it is pertinent to reiterate that despite such a positive assertion in his cross examination he was unable to garner his claim with documentary evidence. He further stated as follows „ It is true that nowhere in exbt D2 201 have I mentioned about the reason for my having purchased and registered the suit property in the name of defendant no.1. RSA No.018 12 Ashok Kumar Subba vs. Bimal Kumar Jain & Anr. It is true that a lottery business run by me in the name and style of “Bindya Agency” the def. no.1 also had partnership of 50%. It is true that in exbt D2 201 I have not mentioned as to from whom the suit land was purchased. It is true that in the year 2005 when the loan was availed from the Union Bank of India the same was availed in the name of Def. no.1. I was a guarantor for the said loan. It is true that the loan was availed for the purpose of converting the RCC structure standing in the suit land into a hotel. It is true that the final settlement amount with the bank to avoid the property from being auctioned was not paid by me. It is true that the loan amount amounting to almost 1.10 crores approximately was cleared by the def. no.1. Witness volunteers to say that def. no.1 had cleared the same by selling his property for which he had not given any consent. ‟ Emphasis supplied) While admitting that R 2 paid off the entire loan towards which she sold his property the Appellant led no evidence to indicate which property of his R 2 had sold off to make good the payment of the loan. He further stated as under “ It is true that a hotel by the name of „Golmaheem‟ was registered in the name of def. no.1 as the sole proprietor and the same was being run by her which was subsequently leased out. It is not a fact that I had not purchased suit land and constructed a five and half storied building solely out of my own earnings. It is not a fact that the def. no.1 had an independent source of income and the suit land was purchased and subsequently the 5 and a half storied building was constructed by her. ” Emphasis supplied) Despite these categorical claims by the Appellant during cross examination it is reiterated that he had no document to buttress his claims of ownership hence even if the evidence of R 2 is to be blindsided by this Court in view of the ratio of the Hon‟ble Supreme Court above the Appellant has failed to establish even a prima facie case. The cross examination conducted by R 2 has therefore demolished the stand of the Appellant in totality. We may now relevantly refer to the provisions of the Benami Transactions Amendment Act 2016 in view of the assertion made by the Appellant in his Evidence on Affidavit that the purchase of the land was made benami by him and the building constructed by him which also included the property sold to the R 1. In this context Section 2(9)(A)(a) and Section 2(9)(A)(b) of the Act reads as follows RSA No.018 13 Ashok Kumar Subba vs. Bimal Kumar Jain & Anr. “2. 9) “benami transaction” means — A) a transaction or an arrangement— a) where a property is transferred to or is held by a person and the consideration for such property has been provided or paid by another person and the property is held for the immediate or future benefit direct or indirect of the person who has provided the consideration except when the property is held by— Section 2(9)(A)(b)(iii) of the Act provides as follows any person being an individual in the name of his spouse or in the name of any child of such individual and the consideration for such property has been provided or paid out of the known sources of the individual The Appellant has not drawn the attention of the Learned Courts below or this Court to any document relied on by him to reveal a paper trail of his income and the subsequent transactions. In the absence of any documentary evidence the mere statement of the Appellant that he was the purchaser of the property cannot be treated as gospel truth neither can the property be said to be benami in view of the nonfulfilment of the afore extracted provisions of law. What emanates from the entire discussions above is that the non filing of a Written Statement by the R 2 to the Counter Claim filed by the Appellantmay be said to constitute an admission but she is permitted to demolish the case of the Appellant by way of cross examination by pointing out the weaknesses or falsity of the Appellant‟s case and to that extent to defend her case as held in Modula India supra and which R 2 has done to her advantage herein. The substantial question of law is determined accordingly. RSA No.018 14 Ashok Kumar Subba vs. Bimal Kumar Jain & Anr. In conclusion the concurrent findings of the Learned Trial Court and the Learned First Appellate Court brook no Appeal dismissed and disposed of. Pending applications if any also stand disposed of. No order as to costs. Copy each of this Judgment be sent forthwith to the Learned First Appellate Court and the Learned Trial Court for Judge 07.03.2022 ml Approved for reporting : Yes

Court of First Instance legally obligated to specify whether the sentences would run Consecutively or Concurrently: Supreme Court

On deciding the term sentence, the Supreme court held that it is legally obligatory upon the Court of the first instance while awarding multiple punishments of imprisonment, to specify in clear terms as to whether the sentences would run concurrently or consecutively. This judgment was passed in the case of Sunil Kumar @ Sudhir Kumar & Anr. vs. The state of Uttar Pradesh [Crl.A.No.526/2021] by a Double Bench consisting of Hon’ble Justice Dinesh Maheshwari and Hon’ble Justice Aniruddha Bose. In the present case, the question of law was restricted to the question of sentence and the appellants were convicted under sections 363, 366 and 376(1) of the Indian Penal Code. They had already undergone 13 years and 2 months of imprisonment. Section 366 and 363 of IPC was filed against the accused based on the complaint of the Complainant’s daughter who had gone to school and not returned. In the course of the investigation, the victim girl was recovered and, ultimately, the charge sheet was filed against the appellants for offences under Sections 363, 366 and 376 IPC. The sessions trial court convicted them under the above-mentioned offences. The trial court sentences the appellants for rigorous imprisonment for a term of 5 years with a fine of Rs. 2,000/- and in default, further imprisonment for 6 months for the offence under Section 363 IPC; rigorous imprisonment for a term of 7 years with a fine of Rs. 3,000/- and in default, further imprisonment for 1 year for the offence under Section 366 IPC; and rigorous imprisonment for a term of 10 years with a fine of Rs. 5,000/- and in default, further imprisonment for 1½ years for the offence under Section 376(1) IPC. The trial court failed to specify if the punishments would consecutively or concurrently and if consecutively, the Trial Court did not specify the order in which one punishment of imprisonment was to commence after expiration of the other. while the Trial Court sentenced the appellants for offences under Sections 363, 366 and 376(1) in that order, the High Court provided for the modification of default stipulations in converse order i.e., for offences under Sections 376(1), 366 and 363 IPC respectively. The counsel for the appellants and respondents heavily argued with the precedents under section 31 of the code of criminal procedure which dealt with the sentences in cases of conviction of several offences at one trial. The Supreme court heard both sides of the case at great length before rendering its observation. The supreme court observed that section 31(1) CrPC completely vests discretion with the court to order the sentences for 2 or more offences at one trial to run concurrently having regard to the nature of offences and the surrounding factors. Even consecutive running of punishment has been laid down. Further, the court of the first instance has a legal obligation to specify whether the sentences would run consecutively or concurrently in case of multiple sentences. In the cases where the court specifies or decided on the consecutive running of the sentence, it is obligated to state the sequence in which they are to be executed. The Supreme Court observed that both the trial court and high court failed to address these questions of law. The Supreme court held that on the omission of the courts to specify the running of sentences, the multiple sentences would operate consecutively as per section 31(1) CrPC read with the decisions of Muthuramalingam and O.M. Cherian by the Apex Court. It is imperative to notes that on the omission to state that the sentences would run consecutively it would not lead to the concurrent running of sentences. The Supreme Court held that the principle of “single transaction” cannot be invoked due to the omission of the court since the facts and offences under which the appellants /accused are charged differ from case to case. The Supreme court held that in view of the facts of the case and section 31(2) CrPC, the maximum period of imprisonment to be served by appellants shall be 14 years and not beyond.

IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 526 OF 2021 Arising from SLPNo.35418 SUNIL KUMAR @ SUDHIR KUMAR & ANR. ….. APPELLANT(S VERSUS THE STATE OF UTTAR PRADESH …. RESPONDENT(S In view of the order dated 13.04.2018 passed by this Court while granting permission to file Special Leave Petition and issuing notice the scope of this appeal is restricted to the question of sentence and the appellants herein after their conviction of offences under Sections 363 366 and 376(1) of the Indian Penal Code 1860 have already undergone 13 years and 2 months of imprisonment. In the given circumstances we have heard learned counsel for the parties finally at this stage itself Even the short question involved in this matter carries the peculiarities of its own as noticed infra As regards relevant background aspects suffice it to notice that on 03.02.2008 Case Crime No. 408 for offences under Sections 363 and 366 Indian Penal Code 1860came to be registered at Police Station T.P. Nagar Meerut on the basis of a written complaint that the complainant’s 13 year old daughter who had gone to school on 15.01.2008 had not returned and after a lot of efforts the complainant came to know that the accused appellant No. 2 Faimuddin @ Feru Sonu had enticed his daughter. In the course of investigation the victim girl was recovered and ultimately the charge sheet was filed against the appellants for offences under Sections 363 366 and 376 IPC. They were tried in Sessions Trial No. 5708 wherein the Court of Additional District and Sessions Judge Fast Track Court No. 5 Meerut in its judgement and order dated 12.09.2008 convicted them of offences under Sections 363 366 and 376(1) IPC After having recorded conviction as aforesaid the Trial Court sentenced the appellants to several punishments in the following manner rigorous imprisonment for a term of 5 years with fine of Rs. 2 000 and in default further imprisonment for 6 months for the offence under Section 363 IPC rigorous imprisonment for a term of 7 years with fine of Rs 3 000 and in default further imprisonment for 1 year for the offence under Section 366 IPC and rigorous imprisonment for a term of 10 years with fine of Rs. 5 000 and in default further imprisonment for 1½ years for the offence under Section 376(1) IPC. However the Trial Court did not specify as to whether the punishments of imprisonment would run concurrently or consecutively and if they were intended to run consecutively the Trial Court did not specify the order in which one punishment of imprisonment was to commence after expiration of the As against the judgment and order of the Trial Court only the appellant No. 1 Sunil Kumar @ Sudhir Kumar preferred an appeal before the High Court of Judicature at Allahabad being Criminal Appeal No 73908. However learned counsel for the appellant before the High Court confined his arguments only on the point of sentence and did not press on the point of conviction. Thus the conviction recorded by the Trial Court attained finality for the appellant No. 2 having not filed the appeal and for the appellant No. 1 even after filing the appeal having not challenged the same. Accordingly the High Court examined only the question of sentence qua the appellant No. 1 and in its impugned judgement and order dated 21.02.2018 while holding that the default stipulations were rather disproportionate proceeded to modify the order of sentencing only to the extent that in the event of default in payment of fine the accused appellant shall undergo additional imprisonment for the terms of 5 months 3 months and 1 month for the offences under Sections 376(1) 366 and 363 IPC respectively However the High Court even after taking note of the fact that the accused appellant had already undergone 10 years of imprisonment did not consider that the Trial Court had neither provided for concurrent running of sentences nor provided the order of running of sentences if they were to run consecutively. Interestingly while the Trial Court sentenced the appellants for offences under Sections 363 366 and 376(1) in that order the High Court provided for modification of default stipulations in converse order i.e. for offences under Sections 376(1) 366 and 363 IPC respectively For the reason that the decisions aforesaid were silent on the point of concurrent or consecutive running of sentences the Jail Superintendent District Jail Meerut while issuing certificates of confinement on 14.03.2018 stated that the accused appellants had undergone 10 years and 1 month of imprisonment but there being no mention in the sentencing order about concurrent running of sentences they were serving 22 years of imprisonment. Faced with such a predicament the accused appellants have approached this Court While confining his arguments to the question of sentence learned counsel for the appellants Mr. Amit Pai has industriously put forward the submissions with reference to Section 31 of the Code of Criminal Procedure 1973and a good number of the decisions of this Court. The learned counsel has contended while relying on the decisions in Nagaraja Rao v. Central Bureau of Investigation:4 SCC 302 and Gagan Kumar v. State of Punjab:5 SCC 154 that it is obligatory for the Court awarding punishments to specify whether they shall be running concurrently or consecutively and the omission on the part of the Trial Court and the High Court to state the requisite specifications cannot be allowed to operate detrimental to the interests of the accused appellants. The learned counsel has contended that though as per the mandate of Section 31 CrPC unless specified to run concurrently the sentences do run consecutively but for that purpose the Court is required to direct the order in which they would run and no such direction having been given by the Trial Court or by the High Court it cannot be said that the Courts were consciously providing for consecutive running of sentences. Further with reference to the decision in O.M. Cherian alias Thankachan v. State of Kerala & Ors.:2 SCC 501 the learned counsel would urge that it is not the normal rule that multiple sentences are to run consecutively The learned counsel Mr. Pai has also attempted to adopt another line of argument that concurrent or consecutive running of sentences is also to be governed by ‘single transaction’ principle as discernible from a combined reading of Sections 31(1) and 220(1) CrPC. In this regard apart from the aforesaid decisions in Nagaraja Rao and Gagan Kumar the learned counsel has also relied upon the decisions in Mohan Baitha Ors. v. State of Bihar & Anr.: 4 SCC 350 Mohd. Akhtar Hussain alias Ibrahim Ahmed Bhatti v. Assistant Collector of Customs Ahmedabad & Anr.: 4 SCC 183 and Manoj alias Panju v. State of Haryana: 2 SCC 153 and has submitted that looking to the nature of accusation there was no reason for the Courts to direct consecutive running of sentences in the present Further the learned counsel for the appellants has referred to the decisions in State of Punjab v. Gurmit Singh & Ors.:2 SCC 384 and State of Madhya Pradesh v. Anoop Singh:7 SCC 773 to submit that those too were the cases involving offences under Sections 363 366 and 376 with victim being a minor and therein this Court has awarded the sentences running concurrently. The learned counsel has also argued that though the appellant No. 2 did not prefer appeal against the judgment and order of the Trial Court this Court permitted him to file SLP by the order dated 13.04.2018 and therefore benefit of reduction of default sentence as ordered by the High Court deserves to be extended to the appellant No. 2 too. The learned counsel Mr. Pai even while frankly pointing out the observations of the Constitution Bench in Muthuramalingam & Ors. v State:8 SCC 313to the effect that sub sectionforbids a direction for consecutive running of sentences awardable by the Court of Sessions has made a fervent appeal that the appellants have already undergone over 13 years of imprisonment and if ordained to serve for a total term of 22 years by consecutive running of sentences it would be highly disproportionate to the actual punishment they need to suffer in this case On the other hand the learned AAG Mr. Vinod Diwakar has firmly as also fairly put forward the views on behalf of the respondent State in opposition to the contentions aforesaid The learned AAG Mr. Diwakar would submit that Section 31 CrPC vests a discretion in the Trial Court to direct whether or not the sentences would run concurrently when the accused is convicted at one trial of two or more offences but in the present case after noticing the gravity and nature of offences i.e. kidnapping and rape of a 13 year old girl the Trial Court has exercised its discretion and did not mention that the sentences would be running concurrently and therefore ipso facto they are to run The learned AAG has also submitted that the principles related with commission of offences in a single transaction do not lead to the proposition that different sentences in relation to multiple offences shall invariably be running concurrently and has referred to the enunciations in O.M. Cherian to submit that except life imprisonments the other term sentences awarded by the Court for several offences do run consecutively unless directed The learned AAG for the State would submit that concurrent running of sentences as provided in any particular case relates to the facts and circumstances pertaining to that case and the appellants cannot claim any parity for concurrent running of sentences with reference to any other decided case even if relating to the offences of similar nature. The learned AAG would argue that in the present case looking to the nature and gravity of offences the Trial Court has exercised its discretion in not directing concurrent running of sentences which only means that the sentences are to run consecutively and that an omission on the part of the Trial Court in not specifying the order of running cannot mean that the sentences are to run concurrently We have given thoughtful consideration to the rival submissions and have examined the record of the case with reference to the law The contentions urged in this matter essentially revolve around the provisions contained in Section 31(1) CrPC. The contours of these provisions have been succinctly delineated and explained by this Court in the case of O.M. Cherianin the following terms: Under Section 31 CrPC it is left to the full discretion of the court to order the sentences to run concurrently in case of conviction for two or more offences. It is difficult to lay down any straitjacket approach in the matter of exercise of such discretion by the courts. By and large trial courts and appellate courts have invoked and exercised their discretion to issue directions for concurrent running of sentences favouring the benefit to be given to the accused. Whether a direction for concurrent running of sentences ought to be issued in a given case would depend upon the nature of the offence or offences committed and the facts and circumstances of the case. The discretion has to be exercised along the judicial lines and not mechanically Accordingly we answer the reference by holding that Section 31 CrPC leaves full discretion with the court to order sentences for two or more offences at one trial to run concurrently having regard to the nature of offences and attendant aggravating or mitigating circumstances. We do not find any reason to hold that normal rule is to order the sentence to be consecutive and exception is to make the sentences concurrent. Of course if the court does not order the sentence to be concurrent one sentence may run after the other in such order as the court may direct. We also do not find any conflict in the earlier judgment in Mohd. Akhtar Hussain and Section 31 CrPC.” In Muthuramalingam the basic question before the Constitution Bench was as to whether consecutive life sentences could be awarded to a convict on being found guilty of a series of murders for which he had been tried in a single trial. In the course of determination of this question the Constitution Bench dealt with several dimensions of sentencing particularly those relating to multiple sentences and observed inter alia that “23 So interpreted Section 31(1) CrPC must mean that sentences awarded by the court for several offences committed by the prisoner shall run consecutivelyexcept where such sentences include imprisonment for life which can and must run concurrently….” 10.2. Thus it is beyond a shadow of doubt that Section 31(1) CrPC vests complete discretion with the Court to order the sentences for two or more offences at one trial to run concurrently having regard to the nature of offences and the surrounding factors. Even though it cannot be said that consecutive running is the normal rule but it is also not laid down that multiple sentences must run concurrently. There cannot be any straitjacket approach in the matter of exercise of such discretion by the Court but this discretion has to be judiciously exercised with reference to the nature of the offence s committed and the facts and circumstances of the case. However if the sentencesare not provided to run concurrently one would run after the other in such order as the Court may direct For what has been provided in Section 31(1) CrPC read with the expositions of this Court it follows that the Court of first instance is under legal obligation while awarding multiple sentences to specify in clear terms as to whether they would run concurrently or consecutively. In the case of Nagaraja Rao this Court expounded on this legal obligation upon the Court of first instance in the following terms: “11. The expressions “concurrently” and “consecutively” mentioned in the Code are of immense significance while awarding punishment to the accused once he is found guilty of any offence punishable under IPC or and of an offence punishable under any other Special Act arising out of one trial or more. It is for the reason that award of former enure to the benefit of the accused whereas award of latter is detrimental to the accused’s interest. It is therefore legally obligatory upon the court of first instance while awarding sentence to specify in clear terms in the order of conviction as to whether sentences awarded to the accused would run “concurrently” or they would run “consecutively”.” As noticed if the Court of first instance does not specify the concurrent running of sentences the inference primarily is that the Court intended such sentences to run consecutively though as aforesaid the Court of first instance ought not to leave this matter for deduction at the later stage. Moreover if the Court of first instance is intending consecutive running of sentences there is yet another obligation on it to state the orderin which they are to be executed. The disturbing part of the matter herein is that not only the Trial Court omitted to state the requisite specifications even the High Court missed out such flaws in the order of the Trial Court. Even when we find the aforementioned shortcomings in the orders passed by the Trial Court as also by the High Court the question is as to whether the sentences awarded to the appellants could be considered as running concurrently As noticed the omission to state whether the sentences awarded to the accused would run concurrently or would run consecutively essentially operates against the accused because unless stated so by the Court multiple sentences run consecutively as per the plain language of Section 31(1) CrPC read with the expositions in Muthuramalingam and O.M. Cherian this Court observed that the expression ‘same transaction’ from its very nature is incapable of an exact definition and it is not possible to enunciate any comprehensive formula of universal application for the purpose of determining whether two or more acts constitute the same transaction. The question involved in that case did not relate to sentence but to the inquiry and trial of different offences pertaining to Sections 304 B 498 A 120 B and 406 IPC and territorial jurisdiction of the Magistrate in Bihar when the alleged incident constituting one of the offences i.e. under Section 304 B IPC had taken place in the State of Uttar Pradesh. Of course in the case of Mohd. Akhtar Hussainthis Court indicated that if a transaction constitutes two offences under two enactments generally it is wrong to have consecutive sentences but this Court hastened to observe that such a rule shall have no application if the transaction relating to the offences is not the same or the facts concerning the two offences are quite different. Significantly in that case consecutive running of sentences awarded to accused appellant in two different cases pertaining to the GoldAct 1968 and the Customs Act 1962 was upheld by this Court with the finding that the two offences for which the appellant was prosecuted were ‘quite distinct and different’. The only modification ordered by this Court was concerning the term of imprisonment for the latter conviction while disapproving its enhancement from 4 years to 7 years by the High Court after noticing that he was already sentenced to imprisonment for a term of 7 years in the first offence. The trial and conviction in the case of Manoj alias Panjuhad been for offence under Section 307 IPC as also under Sections 25 and 27 of the Arms Act In the case of Nagaraja Raothe trial and conviction had been of offences under Section 381 IPC and Section 52 of the Post Office Act 1898. In the case of Gagan Kumar offences were under Sections 279 and 304 A IPC. These decisions essentially proceeding on their own facts do not make out a case for interference in favour of the The punishments awarded by this Court in the cases of Gurmit Singh and Anoop Singh relate to the individual facts and circumstances and cannot be adopted as the precedents for the purpose of particular quantum of sentences and their concurrent running Significantly in both the said cases the conviction was recorded by this Court after setting aside the impugned orders of acquittal. The orders passed by this Court for striking a just balance in the matter of sentencing after reversing the acquittal cannot be applied to the present case where conviction recorded by the Court of first instance was not even challenged and has attained finality For what has been discussed hereinabove we are not inclined to accept the principal part of the submissions of learned counsel for the Appellants. However the other part of his submissions that requiring the appellants to serve a total term of 22 years in prison would be highly disproportionate to the actual punishment they need to suffer in this case cannot be brushed aside as altogether unworthy of consideration. 17. We have taken note of the observations of the Constitution Bench in Muthuramalingam which were made in the context of a previous decision of this Court where the eventuality of consecutive running of life sentences was obviated with reference to the proviso to sub sectionof Section 31. The Constitution Bench though endorsed the view that consecutive life sentences cannot be awarded but observed that the proviso to sub sectionof Section 31 CrPC cannot be relied upon to support this conclusion and also observed that sub sectionof Section 31 CrPC has no application to a case tried by the Court of Sessions nor sub sectionforbids a direction for consecutive running of sentences awardable by the Court of Sessions. 17.1. Even when sub section of Section 31 CrPC is not directly applicable some of the relevant features of the present case are that the offences in question were committed in the year 2008 i.e before amendment of IPC by the Amending Act 113 the appellants have continuously served about 13 years and 2 months of imprisonment and nothing adverse in regard to their conduct while serving the sentences has been placed on record. In the given set of circumstances we have pondered over the question as to what ought to be the order for a just balance on the requirements of punishment on one hand and reasonable release period for the appellants on the other while keeping in view the overall scheme of awarding of punishments and execution thereof including the ancillary aspects referable to Sections 433 and 433A CrPC as also Section 55 IPC whereunder serving of a term of 14 years even in the sentence of imprisonment for life is the bottom lineIPC. The appeal is partly allowed as aforesaid 21. While closing on the matter we deem it appropriate to reiterate what was expounded in the case of Nagaraja Rao that it is legally obligatory upon the Court of first instance while awarding multiple punishments of imprisonment to specify in clear terms as to whether the sentences would run concurrently or consecutively. It needs hardly an emphasis that any omission to carry out this obligation by the Court of first instance causes unnecessary and avoidable prejudice to the parties be it the accused or be it the prosecution. NEW DELHI MAY 25 2021

Ambala Bus Syndicate Pvt. Ltd. V/s Chandigarh Administration & Ors.

The overriding effect provided in Section 98 of the MV Act, 1988 Act operates only in case of an inconsistency on a legal position [Case Brief] Ambala Bus Syndicate Pvt. Ltd. V/S Chandigarh Administration & Ors. Case name: Ambala Bus Syndicate Pvt. Ltd. Versus Chandigarh Administration & Ors. Case number/Citation: Civil Appeal No(S). 10002/2018 (Arising From Slp(C) No(S).19092/2011) Court: Supreme Court, Civil Appellate Jurisdiction Bench: J. Joseph Kurien J. Sanjay Kishan Kaul Decided on: September 26, 2018. Relevant Act/Sections: Section 88, 98 of Motor Vehicles Act, 1988     The appellant was aggrieved by the judgment dated 21.04.2011 passed by the Division Bench of the High Court of Punjab and Haryana at Chandigarh in Letters Patent Appeal No.1098 of 2010, whereby the Division Bench overturned the view taken by the learned Single Judge of the High Court and held that the appellant cannot operate its stage carriages beyond the territory of Punjab in view of the 1998 Scheme, as amended in 2001.The relevant consideration in the impugned order read: “The 1998 Scheme and the modified Scheme of 2001 does not permit non-air conditioned buses of the private operators (persons/agencies) to operate in the U.T., Chandigarh. Section 66 of the 1988 Act prohibits an owner of the motor vehicle to permit use of his vehicle as a transport vehicle in any public place whether or not carrying any passengers or goods without permit granted or counter-signed by the competent authority. This Section necessitates a permit for a vehicle to be used as a transport vehicle. Section 88 of the 1988 Act provides counter-signatures of a permit granted in any one State to be valid in any other State. Since the 1998 Scheme of the U.T. Chandigarh excludes the operation of private operators altogether, which Scheme has been framed under Section 99 read with Section 100 of the 1988 Act falling in Chapter VI of the 1988 Act, the same shall have an overriding effect. If that be so, the respondent-Company, a private operator, has no right to claim counter-signatures from the Authority of U.T. Chandigarh on the permit issued to it by the Authority of the State of Punjab under the Reciprocal Agreement dated 4.6.2008 also. In the light of the above conclusions reached by us, the respondent-Company cannot claim counter-signatures on an inter-State permit from the Authority of U.T., Chandigarh to operate a non-air conditioned bus in the territory of U.T. Chandigarh.” ISSUE BEFORE THE COURT: Whether the appellant can claim counter-signatures on an inter-State permit from the Authority of U.T., Chandigarh to operate a non-air conditioned bus in Chandigarh? RATIO OF THE COURT: The court held that the division bench had missed the crucial relevance and effect of the reciprocal Agreement of 2008, which came into effect on 04.06.2008, which specifically provides for counter signature of non-A.C. buses.The court held that the Scheme is unilateral, whereas the reciprocal agreements are bilateral. Despite the availability of Scheme, the Union Territory of Chandigarh and the State of Punjab have consciously entered into a reciprocal agreement permitting the non-A.C. buses, for which the State of Punjab had issued permits prior to 1966 and it continued to be renewed by the State of Punjab to operate in the Union Territory of Chandigarh.The court also observed that such mileage had been taken into consideration for the mileage entitlement of the Union Territory of Chandigarh, in the reciprocal agreement which has come into effect on 04.06.2008. Therefore, unless the reciprocal agreement is superseded by a fresh agreement or unless there is a new scheme framed by the Union Territory of Chandigarh specifying the provisions to the contrary, the buses operated by the appellant, which had permits issued prior to 1.11.1966 and so long as they are renewed by the State of Punjab, the Union Territory of Chandigarh cannot refuse counter signature for the reason that the permits already issued in 1966 had outlived its life after five years of the reorganization. The overriding effect provided in Section 98 of the said Act operates only in case of an inconsistency on a legal position. There was no such situation in the present case. DECISION HELD BY COURT: The decision of division bench was set aside and that of Single judge was restored.The appeal was accordingly, disposed of. The consequences to follow and needful shall be done within four weeks.

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO(S). 10002 2018 ARISING FROM SLP(C) No(s).19092 2011 AMBALA BUS SYNDICATE PVT. LTD. APPELLANT(S VERSUS CHANDIGARH ADMINISTRATION & ORS. RESPONDENT(S KURIAN J JUDGMENT Heard learned counsel for the parties 3. The appellant is aggrieved by the judgment dated 21.04.2011 passed by the Division Bench of the High Court of Punjab and Haryana at Chandigarh in Letters Patent Appeal No.1098 of 2010 whereby the Division Bench overturned the view taken by the learned Single Judge of the High Court and held that the appellant cannot operate its stage carriages beyond the territory of Punjab in view of the 1998 Scheme as amended in 2001. The relevant consideration in the impugned order reads: “The 1998 Scheme and the modified Scheme of 2001 does not permit non air conditioned buses of the private operators persons agencies) to operate in the U.T. Chandigarh. Section 66 of the 1988 Act prohibits an owner of the motor vehicle to permit use of his vehicle as a transport vehicle in any public place whether or not carrying any passengers or goods without permit granted or counter signed by the necessitates a permit for a vehicle to be used as a transport vehicle. Section 88 of the 1988 Act provides counter signatures of a permit granted in any one State to be valid in any other State. Since the 1998 Scheme of the U.T. Chandigarh excludes the operation of private operators altogether which Scheme has been framed under Section 99 read with Section 100 of the 1988 Act falling in Chapter VI of the 1988 Act the same shall have an over riding effect. If that be so the respondent Company a private operator has no right to claim counter signatures from the Authority of U.T. Chandigarh on the permit issued to it by the Authority of the State of Punjab under the Reciprocal Agreement dated 4.6.2008 also In the light of the above conclusions reached by us the respondent Company cannot claim counter signatures on an inter State permit from the Authority of U.T. Chandigarh to operate a non air conditioned bus in the territory of U.T. Chandigarh.” Unfortunately the Division Bench has missed the crucial relevance and effect of the reciprocal Agreement of 2008 which came into effect on 04.06.2008 which specifically provides for counter signature of non A.C. buses. The relevant paragraph is set out below: “The routes mentioned in Annexures A B C D shall always mean the shortest direct route connecting the two terminals lying in the two states through the places mentioned therein. Any discrepancy discovered later in the name or length of route shown in the said annexure shall promptly be corrected through correspondence between the reciprocating States UT and shall not be treated as any modification of the agreement. The Air conditioned and Non air conditioned buses owned and operated by STU’s of both the State UT shall only be allowed subject to the counter signatures. Integral Air Conditioned Buses of the private operator shall be allowed on the routes covered in annexure D countersignatures provided that permits for such Buses shall not be extended beyond Chandigarh except in Punjab area. Non air conditioned buses of the private operators having permits issued before 01.11.1966 may be allowed after verification of the original permits and countersignatures provided that such permits shall be countersigned only if they fall in the scope and terms of Section 74 of the Punjab Reorganization Act 1966 and provisions of Motor Vehicles Act 1988.” There is no dispute that despite the Scheme of 1998 as amended in 2001 the appellant operated their stage carriage up to 2008. According to the learned counsel appearing for Respondent Nos.1 and 3 reciprocal Agreement of 2008 specifically contains the provision to deny the counter signature of the bus operated by the appellant in the Union Territory Despite the persuasive arguments advanced by the learned counsel for Respondent Nos.1 and 3 we find it difficult to appreciate the contention. Learned counsel has specifically referred to Chapter VI of the Motor Vehicles Act 1988 and has invited our attention to Section 98 of the said Act to canvass the point that the Scheme under Chapter VI of the said Act has overriding effect over the reciprocal Agreements contemplated under Section 88 coming under Chapter V of the said Act. Section 98 of the said Act reads as follows: “98. Chapter to override Chapter V and other laws. The provisions of this Chapter and the rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in Chapter V or in any other law for the time being in force or in any instrument having effect by virtue of any such law.” Section 88 and under Chapter V read as “88 Every proposal to enter into an agreement between the States to fix the number of permits which is proposed to be granted or countersigned in respect of each route or area shall be published by each of the State Governments concerned in the Official Gazette and in any one or more of the newspapers in regional language circulating in the area or route proposed to be covered by the agreement together with a notice of the date before which representations in connection therewith may be submitted and the date not being less than thirty days from the date of publication in the Official Gazette on which and the authority by which and the time and place at which the proposal and any representation received in connection therewith will be 6) Every agreement arrived at between the States shall insofar as it relates to the grant of countersignature of permits be published by each of the State Governments concerned in the Official Gazette and in any one or more of the newspapers in the regional language circulating in the area or route covered by the agreement and the State Transport Authority of the State and the Regional Transport Authority concerned shall give effect to it.” There cannot be any dispute that the Scheme is unilateral whereas the reciprocal agreements are bilateral. Despite the availability of Scheme the Union Territory of Chandigarh and the State of Punjab have consciously entered into a reciprocal agreement permitting the non A.C. buses for which the State of Punjab had issued permits prior to 1966 and it continued to be renewed by the State of Punjab to operate in the Union Territory of Chandigarh. It has also come in the affidavit of the State of Punjab that such mileage has been taken into consideration for the mileage entitlement of the Union Territory of Chandigarh in the reciprocal agreement which has come into effect on 04.06.2008. Therefore unless the reciprocal agreement is superseded by a fresh agreement or unless there is a new scheme framed by the Union Territory of Chandigarh specifying the provisions to the contrary the buses operated by the appellant which had permits issued prior to 1.11.1966 and so long as they are renewed by the State of Punjab the Union Territory of Chandigarh cannot refuse counter signature for the reason that the permits already issued in 1966 had outlived its life after five years of the reorganization. The overriding effect provided in Section 98 of the said Act operates only in case of an inconsistency on a legal position. There is no such situation in the present case. On the contrary the reciprocal agreement is on mutually beneficial terms. Therefore we set aside the impugned order passed by the Division Bench and restore that of the learned Single Judge of the High Court 10. The appeal is accordingly disposed of. The consequences will follow and needful shall be done within four weeks from today 11. Pending applications if any shall stand 12. There shall be no orders as to costs NEW DELHI SEPTEMBER 26 2018

Orders pronounced by a Judge in open court should be immediately made available to the parties: High Court of Delhi

There cannot be any quarrel with the proposition that orders pronounced by a Judge in open court should be immediately made available to the parties so that the party aggrieved with the said order may invoke legal remedies against the said order as held by the Hon’ble High Court of Delhi through a learned bench of Hon’ble Mr. Justice Amit Bansal in the case of Ram Charan Aggarwal Vs Prem Lata & Anr [CM(M) 640/2021 & CM No.33116/2021 (stay)]. The brief facts of the case are that on 22nd September, 2021, notice was issued in the present petition on the submission of the petitioner that despite the fact that the website of the District Court shows that the present leave to defend application has been dismissed; the judgment was not made available. The operation of the impugned judgment was stayed only on account of its non-availability. The present petition under Article 227 of the Constitution of India has impugned the order dated 16th September, 2021 passed by the Rent Controller, Tis Hazari Courts, Delhi in RC ARC 479653/2016 on the ground that the printout from the website of the Court shows that the leave to defend application filed by the petitioner in respect of the eviction petition filed under Section 14(1)(e) of the Delhi Rent Control Act, 1958 has been dismissed, however, the judgment had not been made available. Learned senior counsel, Mr. Darpan Wadhwa, appearing on behalf of the petitioner has relied upon the order the Supreme Court in the case of Oriental Insurance Co. Ltd. vs. Zaixhu XIE & Ors to contend that the judgment pronounced in open court should be made available on the same date or immediately thereafter. Learned senior counsel appearing on behalf of the respondents, Mr. Ashish Dholakia, contended that the said judgment was pronounced in open court on 16th September, 2021 and merely because the same was uploaded few days later would not be a ground for the petitioner to file the present petition on the ground that the judgment was not in existence, as has been stated in the present petition. After hearing both the parties, the Hon’ble High Court of Delhi opined that “However, the judgment was uploaded on 15th May, 2020 after 9½ months. There cannot be any quarrel with the proposition that orders pronounced by a Judge in open court should be immediately made available to the parties so that the party aggrieved with the said order may invoke legal remedies against the said order. In the present case, admittedly the judgment was pronounced in open court on 16th September, 2021 and leave to defend application filed on behalf of the petitioner was dismissed. The certified copy of the said judgment was made available on 22nd September, 2021. Though there may have been some delay in making the judgment available, the magnitude of the delay was not such so as to be covered within the ambit of the directions of the Supreme Court in Oriental Insurance Co. Ltd.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 5th October 2021 CM(M) 640 2021 & CM No.33116 2021RAM CHARAN AGGARWALTHROUGH LR Through Mr. Darpan Wadhwa Petitioner Advocate with Mr. Amandeep Singh PREM LATA & ANR. Through Mr. Ashish Dholakia Respondents Advocate with Mr. Akash Panwar and Mr. Ankit Banati Advocates HON BLE MR. JUSTICE AMIT BANSAL VIA VIDEO CONFERENCING] The present petition under Article 227 of the Constitution of India has impugned the order dated 16th September 2021 passed by the Rent Controller Tis Hazari Courts Delhi in RC ARC 479653 2016 on the ground that the printout from the website of the Court shows that the leave to defend application filed by the petitioner in respect of the eviction petition filed under Section 14(1)(e) of the Delhi Rent Control Act 1958 has been dismissed however the judgment had not been made available. On 22nd September 2021 notice was issued in the present petition on the submission of the petitioner that despite the fact that the website of the CM(M) 640 2021 Digitally SignedBy:MAMTA ARYASigning Date:07.10.202113:11:06Signature Not Verified District Court shows that the present leave to defend application has been dismissed the judgment was not made available. The operation of the impugned judgment was stayed only on account of its non availability. Today learned senior counsel appearing on behalf of the respondents submits that the impugned judgment of the Rent Controller has been obtained by him on 22nd September 2021 itself the date on which notice was issued in the present petition. It is contended that the said judgment was pronounced in open court on 16th September 2021 and merely because the same was uploaded few days later would not be a ground for the petitioner to file the present petition on the ground that the judgment was not in existence as has been stated in the present petition. There is nothing extraordinary about the judgment being uploaded few days after it was pronounced in open court. This is all the more relevant in the present case where the statute itself gives six months time period before the recovery of possession could be made by the landlord from the tenant. Therefore petitioner should have waited for a few days for the certified copy of the judgment to be made available before rushing to this Court. Learned senior counsel appearing on behalf of the petitioner has relied upon the order dated 11th December 2020 of the Supreme Court in Civil Appeal No.4022 2020 titled Oriental Insurance Co. Ltd. vs. Zaixhu XIE & Ors. to contend that the judgment pronounced in open court should be made available on the same date or immediately thereafter. It is submitted that as was done by the Supreme Court in the aforesaid case the impugned order may be set aside and the matter may be remanded back for In the above said case before the Supreme Court the operative CM(M) 640 2021 Digitally SignedBy:MAMTA ARYASigning Date:07.10.202113:11:06Signature Not Verified portion of the judgment of the High Court was announced in open court on 31st July 2019. However the judgment was uploaded on 15th May 2020 after 9½ months. There cannot be any quarrel with the proposition that orders pronounced by a Judge in open court should be immediately made available to the parties so that the party aggrieved with the said order may invoke legal remedies against the said order. In the present case admittedly the judgment was pronounced in open court on 16th September 2021 and leave to defend application filed on behalf of the petitioner was dismissed. The certified copy of the said judgment was made available on 22nd September 2021. Though there may have been some delay in making the judgment available the magnitude of the delay was not such so as to be covered within the ambit of the directions of the Supreme Court in Oriental Insurance Co. Ltd.Further in the present case no prejudice has been caused to the petitioner by a delay of few days in making the judgment available. In this regard refence may be made to Section 14(7) of the DRC Act which is set out herein below: “Section 14. Protection of tenant against eviction 7) Where an order for the recovery of possession of any premises is made on the ground specified in clause of the proviso to sub sectionthe landlord shall not be entitled to obtain possession thereof before the expiration of a period of six months from the date of the order.” CM(M) 640 2021 Digitally SignedBy:MAMTA ARYASigning Date:07.10.202113:11:06Signature Not Verified Taking into account that Section 14(7) of the DRC Act itself provides for a period of six months before the said eviction order could be enforced against the petitioner tenant even if there was few days delay in uploading the said order or certified copy being made available no prejudice was caused to the petitioner. The petitioner should have waited for a reasonable period of time for the judgment to be made available and challenged the same on merits. Instead the present petition has been filed casting aspersions on the conduct of the Rent Controller. The present petition is an abuse of the process of law and is dismissed with costs of Rs. 25 000 . OCTOBER 05 2021 AMIT BANSAL J. CM(M) 640 2021 Digitally SignedBy:MAMTA ARYASigning Date:07.10.202113:11:06Signature Not Verified

“Response to the query would be an answer either affirmative or negative, depending on the available records…”: Appellate Authority, SEBI, Part 2.

5. Have you seen the Sl. No. 19(1197217) dt. 10.7.2019 of the letter as mentioned in the Ref above? 6. Today is 626 days, have you sent any information to the Hon’ble Finance Minister in respect of your compliance of the most urgent letter? 7. What is the time limit of “Most urgent” matter in the constitution of India? 8. Have you taken all the landed properties of the Aapna Pariwar Agro Farming Development India Ltd.? 9. What is being done with the said properties? Have you seen the Resolution of the Full body Directors dt. 14.5.2014 where it is mentioned Swaminath Singha was a Director in paper only? 10. Should I request your Honour to withdraw the bars as placed on my Accounts? 11. Do you follow the Lydford Law? Would you allow a citizen of India to live in the light of Article 21 of the Constitution of India?” The respondent, in response to the query numbers 1 to 11, observed that the same are in the nature of seeking clarification/opinion and accordingly, cannot be construed as seeking “information”, as defined under section 2(f) of the RTI Act. After perusing through the query numbers 1, 4, 5, 6, 7, 8, 9, 10 and 11. On consideration it was agreed that the observation of the respondent that the queries are in the nature of eliciting a clarification or opinion of the respondent. It was 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.

Appeal No. 42921 BEFORE THE APPELLATE AUTHORITY Under the Right to Information Act 2005) SECURITIES AND EXCHANGE BOARD OF INDIA Appeal No. 42921 Swaminath Singha CPIO SEBI Mumbai The appellant had filed an application dated April 02 2021under the Right to Information Act 2005against the said response dated May 07 2021. I have carefully considered the application the response and the appeal and find that the matter can be decided based on the material available on record. 2. Ground of appeal On perusal of the appeal it appears that the appellant is aggrieved by the response provided by the respondent. The queries and the response provided thereto are discussed in the following paragraphs in light of the submissions made by the appellant. Before analysing the queries and the responses I note that the appellant being director of Apna Pariwar Agro Farming Developers India Ltd. was one of the noticees in the proceedings wherein the order dated May 3 2018 was passed and directions for refund of money were issued. 4. Query number 1 The appellant in his application referred to letter No. F.No.13 02 …. PM dated September 24 2019 from Smt. Tamana Sinha Deputy Director as per direction of Smt. Nirmala Sitharaman Hon’ble Sinance Minister. The appellant also sought the following information: “1. Are you the Hon’ble Executive Director of SEBI 2. Have you received the letter as ventilated in the reference above If yes please mention the date and time of receiving 3. How many letters have you received from me through speed post Regd post emails Please mention the date and time of receiving. 4. Have you responded to any of the letters emails etc. Please mentioned the same accordingly. 5. Have you seen the Sl. No. 19(1197217) dt. 10.7.2019 of the letter as mentioned in the Ref above 6. Today is 626 days have you sent any information to the Hon’ble Finance Minister in respect of your compliance of the most urgent letter Appeal No. 42921 7. What is the time limit of “Most urgent” matter in the constitution of India 8. Have you taken all the landed properties of the Aapna Pariwar Agro Farming Development India Ltd. 9. What is being done with the said properties Have you seen the Resolution of the Full body Directors dt. 14.5.2014 where it is mentioned Swaminath Singha was a Director in paper only 10. Should I request your Honour to withdraw the bars as placed on my Accounts 11. Do you follow the Lydford Law Would you allow a citizen of India to live in the light of Article 21 of the Constitution of India ” The respondent in response to the query numbers 1 to 11 observed that the same are in the nature of seeking clarification opinion and accordingly cannot be construed as seeking “information” as defined under section 2(f) of the RTI Act. 6. Query numbers 1 4 5 6 7 8 9 10 and 11 I perused the query numbers 1 4 5 6 7 8 9 10 and 11. On consideration I agree with the observation of the respondent that the queries are in the nature of eliciting a clarification or opinion of 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 2 f) of 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 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 said observations I do not find any deficiency in the response. 7. Query number 2 I have perused the query and the response provided thereto. It is observed that the appellant sought whether the letter referred therein was received by SEBI. I do not agree with the respondent that the said query does not fall under the purview of information as defined under the RTI Act since response to the query would be an answer either affirmative or negative depending on the available records. Therefore the respondent shall reconsider the request and provide an appropriate answer. 8. Query number 3 I note that the appellant vide query number 3 inter alia sought details of letters sent by him through Speed Port Registered Post emails. I am of the view that if the appellant has sent the letters he should have copy of the same along with details of the date sent. It is also understood that the date of delivery of the letter sent by speed post registered post can also be tracked. I note that the information Appeal No. 42921 which is already in the possession of the citizen cannot be said to be “held” by the public authority. In this context reference is made to the matter of Shri S.P. Goyal vs. Shri Pragati Kumar & Ors.wherein the Hon’ble CIC held that “Further the obligation of a respondent extends only to providing information which it “holds” or controls in terms of Section 2(f) of the RTI Act. If it can be established through evidence that a party applicant himself possesses an information which he has sought from a public authority such information can be denied to him. This appellant has already been provided the judgement dated 30.3.2007 of the Income Tax Appellate Authority. The information therefore is already in appellant’s possession and cannot therefore be said to be “held” much less “exclusively held” by the public authority in terms of Section 2(j) of the RTI Act.” In view of these observations I am of the view that the respondent is not obliged to provide the information sought by the appellant. In view of these observations I remit the application dated April 02 2021 to the respondent for reconsidering query number 2 and to provide appropriate response within 15 working days from the date of receipt of this order. The Appeal is accordingly disposed of. Place: Mumbai Date: July 07 2021 AMARJEET SINGH APPELLATE AUTHORITY UNDER THE RTI ACT SECURITIES AND EXCHANGE BOARD OF INDIA

Order passed by Civil Court is amenable to scrutiny by the High Court: Bombay High Court

An order passed by the Civil Court is amenable to scrutiny by the High Court only in exercise of jurisdiction under Article 227 of the Constitution of India, held, A. S. CHANDURKAR AND SMT.PUSHPA V. GANEDIWALA, JJ; while adjudicating the matter in Ramdayal S/o Gulabchand Khandelwal v. Mahendra S/o Badrinarayan Khandelwal; [WRIT PETITION NO.3710/2005]. The predecessors of the appellants had filed a suit against the predecessor of the respondents who was described as a licensee for his eviction along with a further prayer for restoration of possession of the suit property which consisted of a tiled room along with kitchen. During the pendency of the said suit the parties entered into a compromise by which it was undertaken by the defendant that in Diwali-1987 he would vacate the suit premises. On failure to vacate the same the plaintiffs were entitled to execute the said decree and recover possession. The compromise decree was accordingly passed in terms of the compromise. Since the defendant did not vacate the suit premises as per the compromise-deed the plaintiffs filed execution proceedings. In the said execution proceedings the judgment debtor raised an objection to the maintainability of the execution proceedings, reasons for which are not required to be gone into. In short, it was the case of the judgment debtor that the decree passed on compromise was not executable and hence the execution proceedings were liable to be dismissed. The Executing Court upheld that objection and dismissed the execution proceedings by holding the same to be not maintainable in view of the fact that the decree was not executable. The decree holders challenged that order before the Appellate Court but that appeal was dismissed as not maintainable. The decree holders then filed a Writ Petition under Articles 226 and 227 of the Constitution of India challenging the order passed by the Executing Court.

on 30 06 2021 on 22 03 LPA 63 101JudgmentIN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH NAGPUR.LETTERS PATENT APPEAL N0. 63 2010 IN WRIT PETITION NO.3710 2005 Chaman Chowk At Post Khategaon District DevasMorshi in execution proceedings on 03.10.1988 holding the decree inquestion to be inexecutable. C.A.Z. No.19 has been filed by therespondents seeking dismissal of the letters patent appeal on the groundthat the same is not maintainable.2.For considering the objection raised by the respondents to themaintainability of the letters patent appeal it would be necessary to referto certain relevant facts. The predecessors of the appellants had filedRegular Civil Suit No.1367 against the predecessor of the respondentswho was described as a licensee for his eviction alongwith a furtherprayer for restoration of possession of the suit property which consistedof a tiled room alongwith kitchen. During the pendency of the said suitthe parties entered into a compromise by which it was undertaken by thedefendant that in Diwali 1987 he would vacate the suit premises. Onfailure to vacate the same the plaintiffs were entitled to execute the saiddecree and recover possession. The compromise decree was accordingly on 30 06 2021 on 22 03 LPA 63 104Judgmentpassed in terms of the compromise. Since the defendant did not vacatethe suit premises as per the compromise deed the plaintiffs filedexecution proceedings being Regular Darkhast No.188. In the saidexecution proceedings the judgment debtor raised an objection to themaintainability of the execution proceedings reasons for which are notrequired to be gone into. In short it was the case of the judgment debtorthat the decree passed on compromise was not executable and hence theexecution proceedings were liable to be dismissed. On 03.10.1988 thelearned Judge of the Executing Court upheld that objection and dismissedthe execution proceedings by holding the same to be not maintainable inview of the fact that the decree was not executable. The decree holderschallenged that order before the Appellate Court but that appeal wasdismissed as not maintainable.3.The decree holders then filed Writ Petition No.37105under Articles 226 and 227 of the Constitution of India challenging theorder passed by the Executing Court. Prayerin the said writ petitionreads as under: “1.Quash order dated 20.2.1995 passed by theDistrict Judge Amravati in Regular Civil AppealNo.318 88 arising out of order dated 3.10.1988 passedby the Civil Judge Junior Division Morshi in RegularExecution Case 10 1988.” on 30 06 2021 on 22 03 LPA 63 105JudgmentThe learned Single Judge by his judgment dated 19.12.2008upheld the order passed by the Executing Court and consequentlydismissed the said writ petition. The aforesaid judgment of the learnedSingle Judge has been challenged in this letters patent appeal. Theappeal was admitted on 28.01.2010. It is thereafter that the respondentsfiled C.A.Z. No.19 seeking dismissal of the letters patent appeal onthe ground that it was not maintainable.4.Shri J.T. Gilda learned Senior Advocate for the respondentssubmitted that what was impugned in the writ petition was an orderpassed by the Civil Court in execution proceedings. The jurisdictionexercised by the learned Single Judge while entertaining and thereafterdismissing the writ petition was under Article 227 of the Constitution ofIndia especially in view of the fact that the order impugned in that writpetition was one passed by the Civil Court. It was his submission that asexception to the order passed by the Civil Court was taken in the writpetition the jurisdiction exercised while entertaining the same was underArticle 227 of the Constitution of India and hence the intra Court appealchallenging that adjudication was not maintainable. Placing reliance onthe decision in Jogendrasinhji Vijaysinghji Versus State of Gujarat &Others9 SCC 1] it was his submission that as it was held that nowrit could be issued against the order passed by the Civil Court the on 30 06 2021 on 22 03 LPA 63 106Judgmentletters patent appeal was not maintainable. Further reference was madeto the order dated 10.06.2015 passed by the Division Bench of this Courtin C.A.Z. No.215Mh.L.J. 916] and especially the answersgiven to the questions that were formulated while answering thereference. It was his contention that since there was a jurisdictional errorcommitted by the learned Judge of the Executing Court in refusing toentertain the execution proceedings the petitioners had invokedcertiorari jurisdiction before the learned Single Judge and in terms of thejudgment of the Full Bench the letters patent appeal was maintainable.He then submitted that while the jurisdictional aspect had been discussedin detail by the Full Bench in M s Advani Oerlikon Ltd.this aspectdid not fall for consideration before the Hon’ble Supreme Court inJogendrasinhjiMorshi in Execution Case No.188.In other words an order passed by the Civil Court was challenged in theaforesaid writ petition that was filed under Articles 226 and 227 of theConstitution of India. The question therefore that has to be consideredwhile deciding the objection raised by the respondents to themaintainability of the letters patent appeal is whether a letters patentappeal challenging the order passed by the learned Single Judge in a writpetition filed under Articles 226 and 227 of the Constitution of India inwhich an order passed by the Civil Court was impugned is maintainable on 30 06 2021 on 22 03 LPA 63 109Judgment7.In Surya Dev Rai Versus Ram Chander RaiMh.L.J.633it was held by a Bench of two Hon’ble Judges of the Hon’bleSupreme Court that an order passed by the Civil Court was amenable towrit jurisdiction under Article 226 of the Constitution of India. On areference made as regards the correctness of that view in Radhey Shyam& Another Versus Chhabi Nath & OthersMh.L.J. 296alarger Bench of the Hon’ble Supreme Court answered the same byholding that judicial orders of the Civil Court were not amenable to writjurisdiction under Article 226 of the Constitution of India and that thejurisdiction under Article 227 of the Constitution of India which wasdistinct from the jurisdiction under Article 226 of the Constitution ofIndia could alone be exercised. The view as taken in Surya Dev Rai(supra) was overruled. Thereafter in Jogendrasinhjithe questionof maintainability of letters patent appeal was again considered and afterreferring to the judgment of the larger Bench in Radhey Shyamitwas held in paragraph 18 as under: “18.The aforesaid authoritative pronouncementmakes it clear as day that an order passed by a civil courtcan only be assailed under Article 227 of the Constitutionof India and the parameters of challenge have beenclearly laid down by this Court in series of decisionswhich have been referred to by a three Judge Bench inRadhey Shyam which is a binding precedent. Needless toemphasise that once it is exclusively assailable under on 30 06 2021 on 22 03 LPA 63 1010JudgmentArticle 227 of the Constitution of India no intra courtappeal is maintainable.”Thereafter in paragraph 30 it was observed as under: “30.From the aforesaid pronouncements it isgraphically clear that maintainability of a letters patentappeal would depend upon the pleadings in the writpetition the nature and character of the order passed bythe learned Single Judge the type of directions issuedregard being had to the jurisdictional perspectives in theconstitutional context. Barring the civil court from whichorder as held by the three Judge Bench in Radhey Shyamthat a writ petition can lie only under Article 227 of theConstitution orders from tribunals cannot always beregarded for all purposes to be under Article 227 of theConstitution. ... ”It was thus held in paragraph 45.2 that an order passed by the Civil Courtwas only amenable to be scrutinized by the High Court in exercise ofjurisdiction under Article 227 of the Constitution of India which wasdifferent from Article 226 of the Constitution of India and as held inRadhey Shyamno writ could be issued against the order passedby the Civil Court and therefore no letters patent appeal would bemaintainable. Thereafter in Ram Kishan Fauji Versus State of Haryana &others5 SCC 533] it was reiterated by a Bench of three Hon’bleJudges in paragraph 42.3 as under: on 30 06 2021 on 22 03 LPA 63 1011Judgment“42.3.A writ petition which assails the order of acivil court in the High Court has to be understood in allcircumstances to be a challenge under Article 227 of theConstitution and determination by the High Court underthe said Article and hence no intra court appeal isentertainable.”It is thus clear that in view of aforesaid pronouncements in RadheyShyam Jogendrasinhji and Ram Kishan Faujian order passed bythe Civil Court could be scrutinized by the High Court in exercise ofjurisdiction only under Article 227 of the Constitution of India and as nowrit of certiorari could be issued for quashing the order passed by theCivil Court a letters patent appeal challenging such adjudication by thelearned Single Judge would not be maintainable.8.Shri H.D. Dangre learned counsel for the appellant howeversought to contend that as the appellants had raised a jurisdictionalchallenge in the writ petition that was filed under Articles 226 and 227 ofthe Constitution of India and had specifically contended that theExecuting Court had failed to exercise jurisdiction vested in it by invokingArticles 226 and 227 of the Constitution of India the letters patentappeal was maintainable. Heavy reliance was placed on the decision ofthe Full Bench of this Court in M s Advani Oerlikon Ltd.had been dissented by inRadhey Shyamand referred to a Larger Bench. In that context itwas observed as under: “7. .The referring judgment adopts the viewthat the aforesaid observations in Surya Dev Rai are notconsistent with the law which has been consistently followedin earlier decisions. The reference to the larger Bench of thecorrectness of the decision in Surya Dev Rai was because theissues arose out of a properly constituted suit in a civil courtfor the grant of an injunction. The position that the writ ofcertiorari is available to correct errors of jurisdiction on thepart of an inferior Court or tribunal is not affected. That thewrit of certiorari under Article 226 is available to correcterrors of jurisdiction of inferior Court or Tribunals is settledin view of a consistent line of authority reading together HariVishnu Kamath Custodian of Evacuee Property Basappa andSyed Yakoob. The decision of nine judges in Mirajkar in factspecifically cited the judgment in Basappa.”on 30 06 2021 on 22 03 LPA 63 1014JudgmentIt thus becomes clear that the Full Bench has referred to the adjudicationby a Civil Court on one hand and that by an inferior Court or Tribunal onthe other. It was held that the position that a writ of certiorari wasavailable to correct the errors of jurisdiction on the part of an inferiorCourt or Tribunal was not affected. These observations are clearly withregard to errors of jurisdiction of inferior Courts Tribunals asdistinguished from orders of a Civil Court. The ultimate answers given bythe Full Bench are in the context of errors of jurisdiction committed bythe subordinate Court or Tribunal in contradiction with errors by the CivilCourt. The learned counsel for the appellants is not right in contendingthat these observations were applicable even to adjudication by the CivilCourt as that is not the ratio of the judgment of the Full Bench.9.We may note that in paragraph 63 of the judgment of theConstitution Bench in Naresh Shridhar Mirajkar Versus State ofMaharashtrait was held that “certiorari does not lie toquash the judgments of inferior Courts of civil jurisdiction”. Another FullBench judgment of this Court in Motilal Khamdeo Rokde & OthersVersus Balkrushna Baliram Lokhandethrough L.Rs.Chandan s o Balkrishna Lokhande & OthersMh.L.J. 110] has inthe light of the aforesaid law held as under: on 30 06 2021 on 22 03 LPA 63 1015Judgment“8. .. Though the Civil Courts aresubordinate to the High Court the expression “inferiorCourt” is not referable to “Judicial Court”. It is thus clearto us that the judicial orders of the Civil Court are notamenable to a writ of certiorari under Article 226 of theConstitution of India. There are no precedents in Indiafor the High Courts to issue writs to subordinate Courts.The jurisdiction to issue a writ of certiorari under Article226 is distinct from one under Article 227 of theConstitution of India. We therefore hold that a writpetition under Article 226 of the Constitution of Indiachallenging the orders passed by the Judicial Civil Courts subordinate to the High Court and seeking a writ ofcertiorari is not maintainable. ..”In the light of the aforesaid position of law which is nowsettled it is clear that what was impugned in the writ petition filed by thepetitioners was an order passed by the Civil Court in executionproceedings for executing a decree passed by the Civil Court. Though thewrit petition was titled as one under Articles 226 and 227 of theConstitution of India in the light of the law laid down in Radhey Shyam& anotheras followed in Jogendrasinhjiwhich wasreiterated in Ram Kishan Faujiand thereafter applied in Motilal(supra) the letters patent appeal is not maintainable as the jurisdictionexercised by the learned Single Judge was only under Article 227 of theConstitution of India. on 30 06 2021 on 22 03 LPA 63 1016Judgment10.Coming to the submission of the learned counsel for theappellants that the letters patent appeal having been admitted it ought tobe heard on merits instead of deciding the question as regards itsmaintainability it must be noted that the objection to maintainability ofthe letters patent appeal has been raised in view of the law laid down bythe Hon’ble Supreme Court in Jogendrasinhji12 SCC 675]. In the present case theobjection to the maintainability of the letters patent appeal is a on 30 06 2021 on 22 03 LPA 63 1017Judgmentjurisdictional aspect that goes to the root of the matter and we thereforedo not find any reason for not considering the objection raised to themaintainability of the letters patent appeal at this stage despite the factthat the letters patent appeal was admitted in the year 2010.11.As noted above the larger Bench of the Hon’ble SupremeCourt in Jogendrasinhjihas held in clear terms that an orderpassed by the Civil Court is amenable to scrutiny by the High Court onlyin exercise of jurisdiction under Article 227 of the Constitution of India. Inother words no letters patent appeal would be maintainable against ajudgment in a writ petition raising challenge to the order passed by theCivil Court as the jurisdiction exercised by the Single Judge in suchproceedings is only under Article 227 of the Constitution of India. As aresult of the law laid down in Jogendrasinhjiit will have to beheld that the letters patent appeal itself is not tenable. This is for thereason that what was done by the Hon’ble Supreme Court in the saiddecision was stating the correct position of law as regards the nature ofjurisdiction exercisable in writ jurisdiction while entertaining challenge toan order passed by the civil Court.In this regard we may refer to the following observations inparagraph 59 of the decision in Lily Thomas & Others Versus Union ofIndia & Others6 SCC 224]: on 30 06 2021 on 22 03 LPA 63 1018Judgment“59. … It is a settled principle thatthe interpretation of a provision of law relatesback to the date of the law itself andcannot be prospective from the date of thejudgment because concededly the Court does not legislatebut only gives an interpretation to an existinglaw. ...”The observations in paragraph 42 of the decision in AssistantCommissioner Income Tax Rajkot Versus Saurashtra Kutch StockExchange Ltd.Scale 582] are also relevant and the same readthus: “42.In our judgment it is also well settledthat a judicial decision acts retrospectively.According to Blackstonian theory it is not thefunction of the Court to pronounce a ‘new rule’ but tomaintain and expound the ‘old one’. In other words Judges do not make law they only discover or find thecorrect law. The law has always been the same. If asubsequent decision alters the earlier one itdoes not make new law. It only discovers thecorrect principle of law which has to be appliedretrospectively. To put it differently even where anearlier decision of the Court operated for quite some time the decision rendered later on would have retrospectiveeffect clarifying the legal position which was earlier notcorrectly understood.” on 30 06 2021 on 22 03 LPA 63 1019JudgmentIt thus becomes clear that in the light of the decision in Jogendrasinhji(supra) the letters patent appeal is not maintainable. Mere fact that itwas admitted cannot be a reason to preclude the Court for examining thejurisdictional aspect of its tenability especially when the objection raisedis that in law the letters patent appeal itself was not maintainable.12.Accordingly the preliminary objection raised to themaintainability of the letters patent appeal is upheld. The civilapplication is allowed. The letters patent appeal is dismissed as notmaintainable. Needless to state that the appellants are free to seekredressal of their grievances that were raised in the letters patent appealby initiating appropriate proceedings. All questions on merits are keptexpressly open. The parties shall bear their own costs. (SMT.PUSHPA V. GANEDIWALA J.)(A.S. CHANDURKAR J.)APTE

An unregistered lease deed cannot create a lease for a fixed period, it remains a month-to-month tenancy: High Court of Delhi

A lease deed that has not been registered cannot create a lease for a fixed period and unless the lease deed is duly registered the tenancy only remains a month-to-month tenancy. Once the Landlord-Tenant relationship is established and the tenancy has expired and the matter is not covered under the Delhi Rent Control Act, 1995 the decree of possession is the natural consequence. These were stated by the High Court of Delhi, consisting Justice Pratibha M. Singh in the case of Simrit Singh vs. Ms Aparna Burjwal [CM APPL. 4254/2019] on 04.01.2022. The facts of the case are that a suit for possession was filed by the Plaintiff in respect of the property in New Delhi (hereinafter “suit property”) as also for recovery of rent, security, maintenance charges as well mesne profits. The Plaintiff entered into an agreement titled “leave and license agreement” which was in sum and substance a lease agreement. The case of the Plaintiff is that the lease agreement, though entered into for a period of 9 years was unregistered. Hence, the tenancy has to be construed as a month-to-month tenancy. The initial monthly rent for the suit property to be paid by the Defendant was Rs.60,000, however, for the month of March, 2016 the monthly rent paid was Rs.80,132 till 19th March 2016. The lease was terminated on 7th January 2016 but the Defendant refused to give possession of the property back to the Plaintiff. The Counsel for the petitioner submitted that the relationship between the Landlord and Tenant was admitted by the Defendant in his written statement. It was also admitted that the lease was unregistered, therefore, the decree the suit for possession ought to have been granted by the Trial Court on the basis of admission by Defendant. It was further contended that the impugned order by Court failed to take into consideration the fact that being an unregistered lease, it could not be construed for 9 years. The Trial Court went on the premise that the lease is still continuing and there has been no irregularity in the payment of rent. Thus, there is no valid termination and the application under Order XII Rule 6 CPC was been dismissed. The Counsel for the defendant submitted that the Defendant is of 55 years of age and she was running a business from the suit property. However, due to the illegal and early termination of the lease by the Plaintiff, she was unable to use the said premises. He further submitted that, in any event, she was not using the suit premises is willing to give possession of the suit property to the Plaintiff, however, she should be permitted to remove all the movable assets in the premises. On the other hand, the Defendant contended that she should be allowed to recover the huge losses of Rs. 85 lakhs that she suffered due to the early termination of the lease by the Plaintiff. The High Court of Delhi held that an unregistered lease deed cannot create a lease for a fixed period and unless the lease deed is duly registered the tenancy only remains a month-to-month tenancy. Once the Landlord Tenant relationship is established and the tenancy has expired and the matter is not covered under the Delhi Rent Control Act, 1995 the decree of possession is the natural consequence. The Court, therefore, observed that the peaceful possession of the suit property shall be handed over to the plaintiff and defendant shall remove all the movable goods including computers, tables and any other furniture fittings which have been placed up by her in the suit premises within one week from the date of this order. Insofar as the monetary claims of use and occupation charges and damages are concerned, the same would be adjudicated by the Trial Court in the suit. With these observations, the present petition was disposed of.

9 & 10 IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 4th January 2022 C.R.P. 23 2019 & CM APPL. 4254 2019 SIMRIT SINGH Through: Mr. Anupam Srivastava and Mr. Anil Petitioner Kumar Chandel Advocates. M S GLOBAL COORDINATES Through: Mr. Habibur Rahman & Mr. Danish Respondent AdvocatesSIMRIT SINGH CONT.CAS(C) 71 2019 Through: Mr. Anupam Srivastava and Mr. Anil Petitioner Kumar Chandel Advocates. MS APARNA BURJWAL Through: Mr. Habibur Rahman & Mr. Danish Respondent JUSTICE PRATHIBA M. SINGH Prathiba M. Singh J.This hearing has been done through video conferencing. C.R.P. 23 2019 & CM APPL. 4254 2019 The present petition challenges the impugned order dated 29th November 2018 in CS. No. 7541 2016 titled Simrit Singh v M s Global Coordinates passed by the ld. ADJ 04 South East Saket Court New Delhi hereinafter “Trial Court”) by which the application under Order XII Rule 6 CPC filed by the Plaintiff Petitioner has been C.R.P. 23 2019 & CONT.CAS(C) 71 2019 rejected by the Trial Court. The petition arises out of a suit for possession filed by the Plaintiff in respect of the second floor of the property bearing No. D 19 Okhla Industrial Area Phase I New Delhi as also for recovery of rent security maintenance charges as well mesne profits. The Plaintiff entered into an agreement dated 1st September 2013 titled “leave and license agreement” which was in sum and substance a lease agreement. The case of the Plaintiff is that the lease agreement though entered into for a period of 9 years was unregistered. Hence the tenancy has to be construed as a month to month tenancy. The initial monthly rent for the suit property to be paid by the Respondent Defendant was Rs.60 000 however for the month of March 2016 the monthly rent paid was Rs.80 132 till 19th March 2016. The lease was terminated vide letter dated 7th January 2016 but the Defendant refused to give possession of the property back to the Plaintiff. Accordingly the Plaintiff sought the following reliefs from the Trial Court: “a) Pass a decree of possession in favour of the Plaintiff and against the Defendant in respect of suit property i.e. Second Floor of the property bearing No. D 19 Okhla Industrial Area Phase I New Delhi ad measuring total area 3500 square feet approximately alongwith the fittings and fixtures b) Pass a decree in favour of Plaintiff and against in a sum of Rs.2 24 202 71 2019 for unpaid rent Four Thousand Two Hundred & Two only) for the arrears of maintenance and security charges and termination of the tenancy c) Pass a decree in favour of Plaintiff and against the Defendant for mesne profits @ Rs.1 50 000 per month in respect of suit property from 10th of April 2016 till the date of actual handing over of the possession of suit property d) Award cost of the present suit in favour of the Plaintiff and against the Defendant” 4. Mr. Srivastava ld. Counsel for the Plaintiff submits that the relationship between the Landlord and Tenant was admitted by the Defendant in his written statement. It was also admitted that the lease was unregistered therefore according to the Plaintiff the decree the suit for possession ought to have been granted by the Trial Court on the basis of admission by the Defendant. Ld. Counsel for Plaintiff further submits that the impugned order failed to take into consideration the fact that being an unregistered lease it could not be construed for 9 years. The Trial Court has gone on the premise that the lease is still continuing and there has been no irregularity in the payment of rent. Thus there is no valid termination and the application under Order XII Rule 6 CPC has been dismissed. He has taken the Court through pleadings as also the judgments in Jeevan Diesel and Electricals Ltd. v Jasbir Singh Chadha RFA No. 179 2011 to argue that an unregistered lease deed cannot create a lease for a fixed period and unless the lease deed is duly registered the tenancy only remains a month to month tenancy. Reliance is also placed on Surinder J C.R.P. 23 2019 & CONT.CAS(C) 71 2019 Sud v R.R. Bhandari RSA No. 106 2006 to argue that once the Landlord Tenant relationship is established and the tenancy has expired and the matter is not covered under the Delhi Rent Control Act 1995 the decree of possession is the natural consequence. 7. Mr. Habibur Rahman ld. Counsel appearing for the Defendant submits that the Defendant is of 55 years of age and she was running a business from the suit property. However due to the illegal and early termination of the lease by the Plaintiff she was unable to use the said premises and a large amount of her movable assets are lying in the premises in question. He further submits that in any event she is not using the suit premises currently and she is willing to give possession of the suit property to the Plaintiff however she should be permitted to remove all the movable assets in the premises. The case of the Plaintiff is that the use and occupation charges in terms of the order dated 3rd February 2018 vide which the Trial Court had directed the Defendant to deposit the use and occupation charges @ Rs. 80 132 with effect from the date of application filed by the Plaintiff under Order 39 Rule 10 till the pendency of the proceedings or the handing over of the physical possession of the suit property whichever is earlier is yet to be paid by the Defendant vide. On the other hand the Defendant contends that she should be allowed to recover the huge losses of Rs. 85 lakhs that she has suffered due to the early termination of the lease by the Plaintiff. After hearing the parties and perusing the record this Court is of the opinion that the monetary claims of both parties would have to be adjudicated by the trial court in the suit and counter claim. Insofar as the handing over of the possession is concerned in view of the stand taken C.R.P. 23 2019 & CONT.CAS(C) 71 2019 today that the Defendant Tenant is willing to hand over possession of the suit property the following directions are issued: a. The Defendant shall remove all the movable goods including computers tables and any other furniture fittings which has been placed up by her in the suit premises within one week from the date of this order. b. The vacant and peaceful possession of the suit property shall be handed over on 14th January 2022 to the Plaintiff or Plaintiff’s representative in the presence of the Local Commissioner in the suit premises itself at 11:30 a.m. Insofar as the monetary claims of use and occupation charges and damages which are being sought by the Defendant Respondent are concerned the same shall be adjudicated by the Trial Court in the d. The Defendant is free to deal with the movable furniture fittings and other computer etc. which may be lying in the suit property in the manner she deems fit. However a detailed statement of account shall be filed before the Trial Court in respect of the monies recovered from disposing the said assets. e. The Defendant shall ensure that all the electricity and water charges are cleared and paid by the Defendant till the date of the handing over of the possession of the Plaintiff. 10. Considering the fact that there is a dispute as to the expenses allegedly incurred by the Defendant in the setting up of the establishment and upkeep of the suit property it is directed that Mr. Anil Kumar Verma Advocate Mobile No. 9958014454) shall be the Local Commissioner to oversee the C.R.P. 23 2019 & CONT.CAS(C) 71 2019 removal of the fixed furniture fittings etc. from the suit property. The Local Commissioner shall ensure that there is no damage caused to the suit property during the removal of furniture computers fittings belonging to the Defendant. If prior to the said removal the Defendant wishes to obtain a Report of any architect to quantify the expenses which she claims to have incurred in the renovation upkeep of the suit property she is permitted to do so in accordance with law. 11. Accordingly the fee of the Local Commissioner is fixed at Rs. 1 00 000 . The fee shall be shared by both the parties equally. The Local Commissioner shall visit the premises on 7th January 2022 in the morning at 11:30 a.m. and any other time thereafter. The representatives of the Petitioner and the Defendant shall be present. The Local Commissioner is free to take video recording and photographs of the suit property and file the same before the Trial Court. 12. Let the copies of the Local Commissioner’s report be supplied to both the parties. It is clarified that only after the Local Commissioner has inspected the suit property and taken videography and photographs of the said premises the Defendant may remove the furniture fittings etc. from the premises without causing any damage to the suit property. 13. With these observations the present petition along with all pending applications is disposed of. CONT.CAS(C) 71 2019 In view of the order passed in C.R.P. 23 2019 the contempt petition is not pressed by the Petitioner. Moreover Mr. Anupam Srivastava ld. Counsel for the Petitioner submits that he has already filed an execution petition and would pursue the same in accordance with law. C.R.P. 23 2019 & CONT.CAS(C) 71 2019 dismissed as withdrawn. JANUARY 4 2022 15. Accordingly the Petition along with all pending applications is PRATHIBA M. SINGH J. C.R.P. 23 2019 & CONT.CAS(C) 71 2019

Courts are slow to interfere with any stated stipulation with regard to age made by the state policy: High Court of Meghalaya

Prescription of age limit and relaxation is made in furtherance of the policy of the State, and the same constitutes a policy decision made, which is to be consistent with the requirements of the post, Courts are slow to interfere with any stated stipulation with regard to age as held by the High Court of Meghalaya by the learned bench lead by Justice H. S. Thangkhiew in the case of Smti Hanna Ch. Marak Vs. State of Meghalaya (WP(C) No. 361 of 2016) The brief facts of the case are that the instant writ application was filed by the writ petitioner seeking relaxation and condonation of her age for appearing in any future selection process to the post of Auxiliary Nurse Midwife (ANM), and in addition has also prayed for regularization and also that she not be ousted from service during the pendency of the writ petition. Ms. D. Mawthoh, learned counsel for the petitioner submitted that the petitioner was initially appointed on 16.03.2010 as an Auxiliary Nurse Midwife (ANM) on a contract basis for a period of 11 months and continued in the said post after extensions were given from time to time till date. On 19.07.2016, an advertisement had been issued for recruitment to a large number of Auxiliary Nurse Midwife (ANM) posts, with the qualifications prescribed therein of S.S.L.C. passed, with 18 months Training Course of Nursing and an age limit 18 to 27 years relaxable by 5 years for Scheduled caste and Tribe candidates. Learned counsel further submits that at that point of time, the petitioner had applied for the said post but her application was not accepted, on the ground that she was over-aged and that though a representation was made before the State respondents, the same was rejected. Being faced with this situation, learned counsel submits, the writ petitioner is before this Court by way of the instant writ petition seeking relaxation of age for any fresh selection. Mr. K.P. Bhattacharjee, learned GA for the State respondents submitted that by the Notification dated 02.05.2018, an amendment was made to the Meghalaya Nursing Service Rules, especially Rule 9 which provides that, in the case of candidates belonging to Scheduled Tribes and Scheduled Castes, the upper age limit shall now be relaxable by 10 years. As per the records of the earlier selection process, it appears that the writ petitioner has not appeared in any selection process till date but is continuing to serve as an ANM. He submitted that the present writ petitioner therefore would not be qualified to apply for any future selection in view of the prescribed age limit. After hearing the learned counsel for the respective parties at length, the Hon’ble Court held, “The concerned respondents are directed in the event an application is made by the petitioner for the fresh selection process as per the advertisement, the same shall be accepted and she be allowed to take part in the selection process. It is however, made clear and understood that this being an exceptional case, it shall not serve as a precedent in the case of any other candidate seeking age relaxation. With the foregoing directions, this writ petition is allowed to the extent as indicated above and is accordingly disposed of.”

Serial No. 06 Regular List HIGH COURT OF MEGHALAYA AT SHILLONG WP(C) No. 3616 Date of Decision: 08.10.2021 Smti Hanna Ch. Marak State of Meghalaya Vs. Hon’ble Mr. Justice H. S. Thangkhiew Judge Ms. D. Mawthoh Adv. vice Mr. A.H. Hazarika Adv. Mr. K.P. Bhattacharjee GA For the Petitioner(s) For the Respondent(s) i) Whether approved for reporting in Law journals etc.: ii) Whether approved for publication in press: This instant writ application has been filed by the writ petitioner seeking relaxation and condonation of her age for appearing in any future selection process to the post of Auxiliary Nurse Midwife ANM) and in addition has also prayed for regularization and also that she not be ousted from service during the pendency of the writ petition. Ms. D. Mawthoh learned counsel for the petitioner submits that the petitioner was initially appointed on 16.03.2010 as an Auxiliary Nurse Midwife on contract basis for a period of 11(eleven) months and has since continued in the said post after extensions were given from time to time till date. Learned counsel submits that on 19.07.2016 an advertisement had been issued for recruitment to a large number of Auxiliary Nurse Midwife posts with the qualifications prescribed therein of S.S.L.C. passed with 18(eighteen) months Training Course of Nursing and an age limit 18 to 27 years relaxable by 5(five) years for Scheduled caste and Tribe candidates. Learned counsel further submits that at that point of time the petitioner had applied for the said post but her application was not accepted on the ground that she was over aged and that though a representation was made before the State respondents the same was rejected. Being faced with this situation learned counsel submits the writ petitioner is before this Court by way of the instant writ petition seeking relaxation of age for any fresh selection. Mr. K.P. Bhattacharjee learned GA for the State respondents on instructions received which have been produced before this Court today submits that by the Notification dated 02.05.2018 an amendment was made to the Meghalaya Nursing Service Rules especially Rule 9 which provides that in the case of candidates belonging to Scheduled Tribes and Scheduled Castes the upper age limit shall now be relaxable by 10(ten) years meaning thereby that candidates who have not yet attained the age of 37(thirty seven) years would be eligible to apply for any selection. He submits that the present writ petitioner therefore would not be qualified to apply for any future selection in view of the prescribed age limit. The learned GA has also produced the most recent communication whereby an advertisement has been issued on 06.10.2021 by the respondents for recruitment to 132 posts of Auxiliary Nurse Midwifefor which she possesses the requisite qualifications. Prescription of age limit and relaxation is made in furtherance of the policy of the State and the same constitutes a policy decision made which is to be consistent with the requirements of the post and in this regard Courts are slow to interfere with any stated stipulation with regard to age. However in view of the peculiar facts and circumstances surrounding this case this Court is of the view that the case of the petitioner deserves some consideration for the reasons hereinafter given. First the fact that the writ petitioner has been in service for more than a decade is undisputed and secondly so also the fact that by virtue of being over aged on the last occasion she could not submit her candidature for regular selection. Coupled with this is the added fact that since the last selection the age has been relaxed by 10(ten) years as is evidenced by the amendment dated 02.05.2018. It would therefore not be out of place to observe that had the Notification relaxing the age by 10(ten) years been in operation in 2016 the writ petitioner could have taken part in the selection process of that year itself. Now coming to the fresh advertisement that has just been issued prescribing an age limit of 37 years it is seen that the writ petitioner has also once again been rendered ineligible to apply as she has since attained 40 years of age. The petitioner therefore through no fault of her own but by force of circumstances has thus been prevented from taking part in any selection process. In the backdrop of these facts and the situation of the writ petitioner it thus would be just and proper as an exceptional case for a mandamus to be issued directing the respondents to permit her to take part in the selection process that has been announced vide advertisement dated 06.10.2021. Accordingly the concerned respondents are directed in the event an application is made by the petitioner for the fresh selection process as per the advertisement the same shall be accepted and she be allowed to take part in the selection process. It is however made clear and understood that this being an exceptional case it shall not serve as a precedent in the case of any other candidate seeking age With the foregoing directions this writ petition is allowed to the extent as indicated above and is accordingly disposed of. The records and other documents as produced by the learned GA including the covering letter of the advertisement itself are made part of the The instant writ petition being WP(C) No. 3616 was tagged together along with WP(C) No. 3516 and WP(C) No. 362 of 2016 for hearing. However in view of the order passed today the other writ petitions i.e. WP(C) No. 3516 and WP(C) No. 362 shall stand de linked to be taken up separately. Registry to take steps and to note accordingly. JUDGE “V. Lyndem PS”

Relevant evidence admissible irrespective of source – Delhi High Court

In the case of Mr. Arvind Kejriwal & Anr. v. State NCT OF Delhi, (CRL.M.C. 1867/2020), Delhi HC has set aside an order of the trial court, in which the court did not give permission to Delhi cm Kejriwal and Minister Manish Sisodia to have access to some extremely crucial documents without following the procedure under CrPC in the chief secretary assault case. The matter was heard by a single judge bench of Justice Suresh Kumar Kait. An application under 207 of CrPC was filed regarding supply of certain documents including a copy of the statement of the witness (VK Jain). The trail court set the application aside and said that as claimed by the prosecution about the copy of the statement of the witness cannot be provided and it was not recorded under 161 CrPC on the alleged date in the application.  A revision application was filed before the trial court but even that was disposed “it was a record of oral examination by the IO and was noted in the case diary, it could not constitute a statement under Section 161”.  It could be used by the court however, as an aid during the trial. Senior Adv. N. Hariharan, who appeared on behalf of the petitioner, submitted that the impugned order stated that VK Jain was examined and the statement is being withheld to help the case of the prosecution. It was submitted that“…they are trying to conceal/withheld the crucial part of evidence which is against the principle of ‘Criminal Jurisprudence’ and in violation of the basic principle of natural justice, free and fair trial. A plain reading of Section 207 CrPC makes it amply clear that under this provision the accused is entitled to have right to take the complete copy of the chargesheet and other documents in regarding of the case from the prosecution”. Furthermore, it was also contended that a joint reading of section 173(5), first proviso of 207 and 173(6), leaves no scope of doubt about the fact that it is the duty of the police officer to forward all the statements mentioned under section 173(5) to the magistrate. The discretion of withholding the evidence with the magistrate. Senior Adv. Sidharth Luthra, who appeared on behalf of the respondent no.2/complainant, submitted that on 21st February, VK Jain was called for examination but no statement was recorded. Further he contended that it was a typographical error and the fact that was referred by the petitioner was for 22nd sept. He further argued that “under Section 173(5) and (6) and Section 207, what is to be supplied to an accused are the specified documents and no more. It is what the Prosecution proposes to rely upon what can be supplied and the accused cannot seek supply of a document which they have produced and which the Prosecution does not choose to rely upon”. “It was also submitted by Luthra that records of the Case Diary could not be sought due to the bar imposed by Section 172(3). Multiple cases such as State of NCT of Delhi v. Ravi Kant Sharma (2007) and Sunita Devi v. State of Bihar & Anr. (2005) relied upon to buttress this submission. It was further argued that it was not obligatory on part of the police officer to record any statement made to him and he may do so if he feels it necessary.” Luthra concluded his arguments by citing the 41st Law Commission Report, where they justified the wide discretion which was granted to the police officer to record only those statements, which may aid the prosecution. The court observed that VK Jain was called on 21st February, and was examined by 21.02.2018 and was examined by the IO which was later on recorded in the case diary. It was recorded in the case diary that the witness was examined in depth and a report was prepared thereafter. Justice Kait then refers to Section 161 of the Code and the case of Ashutosh Verma v. CBI (2014) to observe that even at the stage of scrutiny of documents unde Section 207, the Court shall supply all the documents to the accused, even if the same is not relied upon by the Prosecution. “Further observed that the accused can ask for the documents that withheld his defence and would be prevented from properly defending himself, until all the evidence collected during the course of investigation is given to the accused. Also observed that if there is a situation that arises wherein an accused seeks documents which support his case and do not support the case of prosecution and IO ignores these documents and forward only those documents which favours the prosecution, in such a scenario, it would be the duty of IO to make such documents available to the accused”. The court was in consonance with Hariharan’s arguments which state that it is the duty of the police officer to forward to all the statements to the magistrate. “It cannot be disputed that the duty of the investigating agency is to do free and fair investigation by bringing to the notice of the Court all the evidences collected during the investigation without pick and choose the one which does not support them.” The judgement concluded with an observation on the issue of source of document and states that if the evidence is relevant, it is admissible irrespective of how it is obtained. Finding merits in the present plea, the Court set aside the impugned order of the Trial Court. Court held that “Consequently, the Trial Court is directed to consider the statement dated 21.02.2018 of VK Jain, which is part of ‘Case Diary’ and placed on record by the accused, at the time of passing the order on Charge.” Click here to read the judgment Senior Adv. Sidharth Luthra, who appeared on behalf of the respondent no.2/complainant, submitted that on 21st February, VK Jain was called for examination but no statement was recorded. Further he contended that it was a typographical error and the fact that was referred by the petitioner was for 22nd sept. He further argued that “under Section 173(5) and (6) and Section 207, what is to be supplied to an accused are the specified documents and no more. It is what the Prosecution proposes to rely upon what can be supplied and the accused cannot seek supply of a document which they have produced and which the Prosecution does not choose to rely upon”. “It was also submitted by Luthra that records of the Case Diary could not be sought due to the bar imposed by Section 172(3). Multiple cases such as State of NCT of Delhi v. Ravi Kant Sharma (2007) and Sunita Devi v. State of Bihar & Anr. (2005) relied upon to buttress this submission. It was further argued that it was not obligatory on part of the police officer to record any statement made to him and he may do so if he feels it necessary.” Luthra concluded his arguments by citing the 41st Law Commission Report, where they justified the wide discretion which was granted to the police officer to record only those statements, which may aid the prosecution. The court observed that VK Jain was called on 21st February, and was examined by 21.02.2018 and was examined by the IO which was later on recorded in the case diary. It was recorded in the case diary that the witness was examined in depth and a report was prepared thereafter. Justice Kait then refers to Section 161 of the Code and the case of Ashutosh Verma v. CBI (2014) to observe that even at the stage of scrutiny of documents unde Section 207, the Court shall supply all the documents to the accused, even if the same is not relied upon by the Prosecution. “Further observed that the accused can ask for the documents that withheld his defence and would be prevented from properly defending himself, until all the evidence collected during the course of investigation is given to the accused. Also observed that if there is a situation that arises wherein an accused seeks documents which support his case and do not support the case of prosecution and IO ignores these documents and forward only those documents which favours the prosecution, in such a scenario, it would be the duty of IO to make such documents available to the accused”. The court was in consonance with Hariharan’s arguments which state that it is the duty of the police officer to forward to all the statements to the magistrate. “It cannot be disputed that the duty of the investigating agency is to do free and fair investigation by bringing to the notice of the Court all the evidences collected during the investigation without pick and choose the one which does not support them.” The judgement concluded with an observation on the issue of source of document and states that if the evidence is relevant, it is admissible irrespective of how it is obtained. Finding merits in the present plea, the Court set aside the impugned order of the Trial Court.

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: Pronounced on: 21.10.2020 CRL.M.C. 1867 2020 MR. ARVIND KEJRIWAL & ANR. Petitioners STATE NCT OF DELHI Through Mr. N. Hariharan Sr. Adv. with Mr.Mohd. Irsad and Mr. Badar Mahmood Advs. for petitioner No.1 Mr. Dayankrishnan Sr. Adv. with Mr. Mohd. Irsad and Mr. Badar Mahmood Advs. for petitioner No.2 Respondent Through Mr. Rahul Mehra St. Counselwith Mr. Amit Chadha APP for the State with SFIO Karan Singh Rana 1OMr.Siddharth Luthra Sr. Adv. with Ms. Stuti Gujral Mr. Krishna Datta Multani M. Akshay Sehgal Mr.Yuvraj Paul and Ms. Ipsita Agarwal Advs. for R 2 Complainant HON BLE MR. JUSTICE SURESH KUMAR KAIT JUDGMENT Present petition has been filed under sections 482 483 Cr.P.C. read with Article 227 of the Constitution of India seeking quashing of the Crl.M.C. 1867 2020 impugned order dated 24.07.2019 passed by learned ASJ Rouse Avenue Court Complex New Delhi in CR.REV. No.7 2019 titled as Manish Sisodia & Anr. vs. State & Anr. whereby the said Court did not allow to supply some crucial documents as prayed required in the application under Section 207 Cr.P.C. filed on the behalf of the accused in this case without following the procedure as prescribed under Cr.P.C. The chargesheet in FIR No 54 2018 under section 186 323 353 332 342 149 504 506 II 120 B 109 114 34 IPC filed on 13.08.2020 before learned ACMM Patiala House Court against the petitioners and named as accused. The Petitioner No.1 herein filed an application under section 207 Criminal Procedure Code for supply of certain deficient documents inter alia including the copy of the statement of one witness Sh.V.K. Jain recorded on 21.02.2018 and audio video recording of the examination of the petitioners. Barring the supply of legible copy of the documents mentioned in the application learned ACMM declined the supply of the statement dated 21.02.2020 of the V.K Jain and held that as per prosecution no statement under section 161 Cr.P.C. was recorded of Mr.V.K. Jain on 21.02.2020 and therefore same cannot be supplied. Being aggrieved preferred the Revision Petition No. 7 2019 before Crl.M.C. 1867 2020 the Ld. ASJ Rouse Avenue New Delhi. However on 24.07.2019 the same was disposed of by stating that “since it is a record of oral examination of Sh. V. K. Jain by the IO and is noted in the case diary this report does not take the place of statement under Section 161 Cr.PC and is therefore not to be given to the accused. However the same may be used during the trial as an aid to the trial by the learned Trial Court and also as per provisions of subsection 3 of Section 172 Cr.PC. So far as the second prayer of the revisionists that they be provided audio video recording of their interrogation is concerned the submission of learned counsel for Additional CP EOW is that there is no provision under which the revisionists can demand their statements recorded by the Investigating Officer. He submits that the relevant date is when the charge sheet is filed and not when the statement is recorded. He submitted that on the date of filing of charge sheet the revisionists were accused and not witnesses. He submitted that nothing has been discovered pursuant to their statements. There is no information relating to the fact thereby discovered which may be proved. He submits that the revisionists already know what statement they had made to the Investigating Officer and they cannot confront any prosecution witness with their statements. The learned counsel for the Crl.M.C. 1867 2020 revisionists could not show any provision of law entitling the revisionists with their statements recorded during interrogation. Therefore the prayer of the revisionists for supplying them a copy of audio video recording of their statements during interrogation is declined. The revisionists however may call for these recordings during trial subject to the learned Trial Court considering its production necessary or desirable for the purposes of trial. ” 4. Mr.Hariharan learned Senior Advocate appearing on behalf of the petitioner has submitted that although in the impugned order the learned ASJ noted in para 28 “that this court had called for the case diary. A perusal the same shows that Sh. V. K. Jain had joined investigation at PS Civil Lines on 21.02.2018 and he was examined in depth and a report was prepared contents of which are the same as the contents of the document referred by the revisionists as statement of Sh. V. K. Jain.” Learned senior advocate argued that the prosecution has withheld the statement of witness Mr. V K Jain recorded on 21.02.2018 because it did not suit the prosecution case and helped in falsely implicating the petitioners. This concealment was exposed by Ld. ASJ in its order when he perused the case diary of the case. Thus the grievance of the petitioners is that copy of statement ought to have been supplied to the petitioners but same was not supplied. Crl.M.C. 1867 2020 Further submitted that the chargesheet has three statements of Mr V K Statement under section 161 & 164 Cr.P.C. Statement under section 161 Cr.P.C. Learned senior counsel pointed out that in the statement of V K Jain dated 09.05.2018 which is part of the chargesheet says “In continuation with the statement dated 21.02.2018” which prosecution covers that the typographical error. This all because they are conceal withheld the crucial part of evidence which is against the principle of ―Criminal Jurisprudence‖ and in violation of the basic principle of natural justice free and fair trial. A plain reading of this section 207 Cr.P.C makes it amply clear that under this provision the accused is entitled or have right to take the complete copy of chargesheet and other documents in regarding of the case from the prosecution. Section 207 Cr.P.C. reads as under: “207. Supply to the accused of copy of police report and other documents. In any case where the proceeding has been instituted on a police report the Magistrate shall without delay furnish to the accused free of cost a copy of each of the following: Crl.M.C. 1867 2020 i) the police report ii) the first information report recorded under section 154 iii) the statements recorded under sub section of section 161 of all persons whom the prosecution proposes to examine as its witnesses excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer under subsectionof section 173 iv) the confessions and statements if any recorded under section 164 v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under that the sub section of section 173: Provided Magistrate may after perusing any such part of a statement as is referred to in clauseand considering the reasons given by the police officer for the request direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper shall be furnished to the accused: Provided further that if the Magistrate is satisfied that any document referred to in clause is voluminous he shall instead of furnishing the accused with a copy thereof direct that he will only be allowed to inspect it either personally or through pleader in Court.” A bare reading of provisions contained in Section 207 of Cr.P.C. shows that it is the obligation of the Magistrate to see that all the documents which are necessary for the accused for proper conduct of his defense are furnished to him well before the trial. This includes relied upon and not Crl.M.C. 1867 2020 relied but prosecution cannot pick and choose. Further submitted it is settled law that an impartial and fair opportunity in a trial is the legal right of an accused and justice can only be ensured if the rules of procedure are diligently adhered to. No court shall allow breach of these principles. In this regard relied upon the observations made in Shakuntala vs. State of Delhi: ILR I Delhi 1005. It is submitted that fair and just investigation is a hallmark of any investigation. It is not the duty of the investigating officer to strengthen the case of prosecution by withholding the evidence collected by him. If an Investigating Officer withholds the evidence collected by him the accused has a right to rely upon that evidence and tell the Court to take that evidence into account while framing the charges. The Court while framing charges may not take into account the defence of the accused for the document in custody of the accused which were not produced by the accused before the Investigating Officer or which did not form part of the investigation but the court is duty bound to consider the evidence collected by the Investigating Officer during the investigation of the case. It is argued that a conjoint reading of Section 173(5) 173(6) and first proviso attached to Section 207 of Cr.P.C. leaves no scope of doubt that it is Crl.M.C. 1867 2020 the bounden duty of the police officer to forward to the Magistrate all the statements mentioned in sub sectionof Section 173 of Cr.P.C. without any exception so as to enable the Magistrate to discharge his duty under Section 207 of Cr.P.C. by furnishing copies of such statements to the accused. In case the police officer considers that the disclosure of any part of such statements would not be expedient in the public interest nor essential in the interest of justice he is supposed to append a note in his forwarding memorandum to the Magistrate to that effect along with his reasons for withholding such statements or parts thereof from the accused. Wherever any such reservation is made by the police officer it still lies within the discretion of the Magistrate whether to allow such request or not and it is only in the event where Magistrate agrees with the reasons given by the police officer for not supplying any statement or part thereof to an accused he may order accordingly while agreeing with the objection raised by the police official. 10. To strengthen his arguments Mr.Hariharan has relied upon the case of Manjeet Singh Khera vs. State of Maharashtra: 9 SCC 276 whereby the Hon‘ble Supreme Court noting its earlier decision in V.K. Sasikala vs. State: 9 SCC 771 did not answer specifically as to Crl.M.C. 1867 2020 whether the prosecution should supply those documents which are not forwarded with the charge sheet when the accused person demands them as the said issue did not arise and held as under: two categories: one which supports 8. The Court also noticed that seizure of large number of documents in the course of investigation of a criminal case is a common feature. After completion of the process of investigation and before submission of the report to the court under Section 173 Cr. PC a fair amount of application of mind on the part of the investigating agency is inbuilt in the process. These documents would prosecution case and other which supports the accused. At this stage duty is cast on the investigating officer to evaluate the two sets of documents and materials collected and if required to exonerate the accused at that stage itself. However many times it so happens that the investigating officer ignores the part of seized documents which favour the accused and forwards to the court only those documents which prosecution. If such a situation is pointed out by the accused and those documents which were supporting the accused and have not been forwarded and are not on the record of the court whether the prosecution would have to supply those documents when the accused person demands them The Court did not answer this question specifically stating that the said question did not arise in the said case. In that case the documents were forwarded to the court under Section 173(5) Cr. PC but were not relied upon by the prosecution and the accused wanted copies inspection of those documents. This Court held that it was incumbent upon the trial court to supply the copies of these documents to the accused as that entitlement was a facet of just fair and transparent investigation trial and constituted an inalienable attribute of the process of a fair trial which Article 21 of the Crl.M.C. 1867 2020 Constitution guarantees to every accused." 11. On the objection raised by the counsel for respondent no.2 complainant) that order dated 22.04.2019 passed by learned ACMM has not been challenged however learned counsel for the petitioners relied upon the case of Kunhayammed & Ors. vs. State of Kerala & Ors.: 6 SCC 359 whereby held as under: “Incidentally we may notice two other decisions of this Court which though not directly in point the law laid down wherein would be of some assistance to us. In Shankar Ramchandra Abhyankar Vs. Krishnaji Dattatraya Bapat AIR 1970 SC 1 this Court vide para 7 three pre conditions attracting applicability of doctrine of merger. They are : i) the jurisdiction exercised should be appellate or revisional jurisdiction jurisdiction should have been exercised after issue of notice and iii) after a full hearing in presence of both the parties. Then the appellate or revisional order would replace the judgment of the lower court and constitute the only final judgment. In Sushil Kumar Sen Vs. State of Bihar AIR 1975 SC 1185 the doctrine of merger usually applicable to orders passed in exercise of appellate or revisional jurisdiction was held to be applicable also to orders passed in exercise of review jurisdiction. This Court held that the effect of allowing an application for review of a decree is to vacate a decree passed. The decree subsequently passed on review whether it modifies reverses or confirms the decree originally passed is a new decree superseding the original one. The distinction is clear. Entertaining an application for review does not vacate the decree sought to be reviewed. It is only when the application for review has been allowed that the Crl.M.C. 1867 2020 decree under review is vacated. Thereafter the matter is heard afresh and the decree passed therein whatever be the nature of the new decree would be a decree superseding the earlier one. The principle or logic flowing from the above said decisions can usefully be utilised for resolving the issue at hand. Mere pendency of an application seeking leave to appeal does not put in jeopardy the finality of the decree or order sought to be subjected to exercise of appellate jurisdiction by the Supreme Court. It is only if the application is allowed and leave to appeal granted then the finality of the decree or order under challenge is jeopardised as the pendency of appeal reopens the issues decided and this court is then scrutinising the correctness of the decision in exercise of its appellate jurisdiction.” 12. On the other hand respondent no.1 State has filed status report whereby stated that on 21.02.2018 Sh.V.K. Jain was called at Police Station and he joined investigation. He was examined on that day by the Investigating Officer and the same has been recorded in the Case Dairy and the said statement has also been reproduced at page 31 of the petition by the petitioner but no statement under section 161 Cr.P.C. was recorded. The statement under section 161 Cr.P.C. of V.K. Jain was got recorded on 22.02.2018 and 09.05.2018. It is correct that in the statement dated 09.05.2018 of V.K. Jain it is mentioned that “it is in continuation to my earlier statement dated 21.02.2018 recorded under section 161 Cr.P.C. and 164 Cr.P.C.” In the remand order of co accused persons namely Sh.Prakash Crl.M.C. 1867 2020 Jarwal and Sh.Amanatullah Khan learned MM Ms.Shefali Bernala Tandon Tis Hazari Courts has recorded the date of statement of V.K. Jain as 21.02.2018. In reply to the above facts it is stated that the above date of 21.02.2018 is a typographical error as it is matter of record that both statement under section 161 Cr.P.C. and 164 Cr.P.C. of witness V.K. Jain were got recorded on 22.02.2018 only. Moreover the fact of recording of the same datein the order of learned MM dated 23.02.2018 is the submission made by the Defense Counsel and not by the prosecution. Further stated that as per the impugned order of learned Session Court dated 24.07.2019 detailed examination of case diary was done by the learned ASJ in Crl.Rev. 7 19. The entire case diary was got called by learned ASJ and relevant pages have been duly counter signed by the learned Judge. 13. Mr.Siddharth Luthra learned senior counsel appearing on behalf of respondent no.2 complainant and submitted that the issues arising in the present Petition interalia i. Firstly whether any Statement under Section 161 CrPC of Sh.V.K. Jain was recorded on 21.02.2018 and if not can the Notes of the I.O. in the case diary be directed to be supplied to the Accused ii. Secondly whether under Section 173(5) &and Section 207 CrPC Crl.M.C. 1867 2020 Accused anything other than what is prescribed can be supplied to the It is the stand of the investigating agency that on 21.02.2018 PW V.K. Jain was called for examination but no statement under section 161 Cr.P.C. was recorded. On 22.02.2018 however his statements were recorded both under sections 161 Cr.P.C. and 164 Cr.P.C. On 23.02.2018 during the remand proceedings of co accused persons a purported statement under section 161 Cr.P.C. of Shri V. K. Jain recorded on 21.02.2018 was placed on record by the accused themselves. This document was not produced by or claimed to be a statement under Section 161 Cr.P.C. by the investigating agency prosecution. 17. Learned senior advocate submitted that there is a typographical error in V. K. Jain‘s statement under section 161 Cr.P.C. dated 09.05.2018 which mentions that statements under Section 161 and 164 Cr.P.C. were recorded on 21.02.2018 However both these statements were in fact recorded on 22.02.2018. Under Section 173(5) &and Section 207 Cr.P.C. what is to be supplied to an accused are the specified documents and no more. It is what the Prosecution proposes to rely upon what can be supplied and the accused cannot seek supply of a document which they have produced and Crl.M.C. 1867 2020 which the Prosecution does not choose to rely upon. This is an alternate submission to the earlier submission that the purported Statement of 21.02.2018 is not a statement under Section 161 Cr.P.C. Therefore the mere mention of a Statement of 21.02.2018 in the Statement under Section 161 Cr.P.C. of 09.05.2018 is of no significance and that finding is consistently made by both the Ld. Magistrate and the Ld. Sessions Court and there is no occasion for the Petitioners to question the findings of the two courts which are neither perverse nor illegal nor liable to be set aside. 18. Learned counsel raised the issue whether Sh. Manish Sisodia having not even sought the documents under Section 207 Cr.P.C. could maintain a revision petition or the present petition under section 482 Cr.P.C. to seek supply of the purported statement dated 21.02.2018 It is submitted that though the application under section 207 Cr.P.C. does not reflect which Accused had moved before the Trial Court however the Ld. Magistrate records that Sh. B.S. Joon Advocate was representing Sh. Arvind Kejriwal Sh. Jarwal and Sh. Amanatullah Khan. That being the position the first Petitioner before this Court and before the Revisional Court had no grievance whatsoever and could not have maintained a challenge to the Order dated 22.04.2019. Furthermore in order to overcome Crl.M.C. 1867 2020 this hurdle pursuant to Order dated 21.05.2019 Sh. Arvind Kejriwal was added as a Petitioner. However the Criminal Revision Petition on behalf of Sh. Manish Sisodia as well as this Petitioner is unsustainable as framed. 20. Further raised objection whether the petition is belated and the explanation given in Paras 6 8 is false to the knowledge of the Petitioners 21. Mr.Luthra submitted that in Paras 6 7 & 8 of the Petition the Petitioners have sought to justify the delay in challenging the revisional order which is 14 months old having been passed on 24.07.2019 on the ground that there was no occasion for them to seek supply of documents till the Order dated 24.08.2020 was passed by the Coordinate Bench of this Hon‘ble Court. In this regard it is submitted that when the Order was passed on 22.11.2018 the next date in the Trial Court was on 07.12.2018 when an adjournment was required to be sought. It is only on 07.12.2018 the Application under Section 207 Cr.P.C. was filed as reflected in Para 1 at Page 49 of the Application. 22. Further submitted this Court on 14.03.2019 in Writ Petition No. 3559 2018 made it clear that proceedings under Section 207 Cr.P.C. will continue pursuant to which the Application under Section 207 Cr.P.C. was decided by the Trial Court on 22.04.2019 and by the Sessions Court on Crl.M.C. 1867 2020 24.07.2019. Despite this Petitioners chose not to challenge the Revisional Order passed on 24.07.2019 for 14 months. Further on 24.08.2020 the Petitioners while agreeing to the matter for being listed for consideration on charge only sought time to prepare arguments and did not mention any alleged requirement to comply under Section 207 Cr.P.C. which demonstrates that despite the order dated 14.03.2019 and the Revisional Order dated 24.07.2019 the Petitioners have been delaying the matter by choosing not to seek supply of documents which they claimed to be entitled to including the challenge in the present petition. 23. To strengthen his arguments he has relied upon a case of Rajesh Chetwal vs. State: Crl. M.C. 1656 2011 passed by this Court on 24.08.2011 which is relevant whereby observed as under: “10.So far as the question of application of provisions of the Limitation Act is concerned I agree with the contention of the petitioner that the same is not applicable and to this extent the judgment of the Single Judge in Enforcement Directorate Vs. Ajay Bakliwal supra) & Inder Mohan & Othrs Vs The State Bata vs. Amana Behra: 1989 SCC Online Ori 325 b) Neerja Bhargava vs. State of NCT of Delhi & Anr.: 2015 SCC c) Dr. G. Ramachandrappa vs. Padma Ramachandrappa: 2010 Cri Online Del 12505 LJ 2666 25. Learned senior advocate has also raised an issue that whether the records of the Case Diary can be sought despite the bar under Section 172(3) Cr.P.C. It is submitted that bar under Section 172(3) Cr.P.C. has been retained to Section 172 even after the amendment to Cr.P.C. vide Act 5 of 2009 effective from 31.12.2019. In the course of an investigation the I.O. may question many persons and would record all the proceedings so carried out in the Case Diary which is the mandate of Section 172 Cr.P.C. In this regard he has cited the case of State of NCT of Delhi vs. Ravi Kant Sharma:2 SCC 764 whereby held as under: “In a given case the investigating officer may record circumstances ascertained during investigation in the case diary in terms of Section 172 Cr.P.C. It is only when the investigating officer decides to record the statement of witnesses under Section 161 Cr.P.C. that he becomes obliged to make a true record of the statement which Crl.M.C. 1867 2020 obviously will not include the interpretation of the investigating officer of the statements or the gists of 27. He further relied upon the case of Sunita Devi vs. State of Bihar & Anr.:1 SCC 608 wherein it was observed by the Hon‘ble Supreme Court that: “The supervision notes can in no count be called. They are not a part of the papers which are supplied to the accused. Moreover the informant is not entitled to the copy of the supervision notes. The supervision notes are recorded by the supervising officer. The documents in terms of Sections 207 and 208 are supplied to make the accused aware of the materials which are sought to be utilized against him. The object is to enable the accused to defend hiself properly. The idea behind the supply of copies is to put him on notice of what he had to meet at the trial. The effect of non supply of copies has been considered by this Court in Noor Khan v. State of Rajasthan AIRSC 286 and Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble and Anr.. 2003] 7 SCC 749. It was held that non supply is not necessarily prejudicial to the accused. The Court has to give a definite finding about the prejudice or otherwise. The supervision notes cannot be utilized by prosecution as a piece of material or evidence against the accused. At the same time the accused cannot make any reference to them for any purpose. If any reference is made before any court to the supervision notes as has noted above they are not to be taken note of by the concerned court. As many instances have come to light when the parties as in the present case make reference to the supervision notes the inevitable conclusion is that they have unauthorized access to the official records. We therefore direct the Chief Secretary of each State and Crl.M.C. 1867 2020 Union Territory and the concerned Director General of Police to ensure that the supervision notes are not made available to any person and to ensure that confidentiality of the supervision notes is protected. If it comes to light that any official is involved in enabling any person to get the same appropriate action should be taken against such official. Due care and caution should be taken to see that while supplying police papers supervision notes are not 28. Mr.Luthra submitted that rationale in Sunita Deviwas further followed in Sidharth & Ors. vs. State of Bihar: 12 SCC 545. Reliance may also be placed on Naresh Kumar Yadav vs. Ravindra Kumar Ors.:1 SCC 632 wherein it was interalia held that: “13. The documents in terms of Sections 207 and 208 are supplied to make the accused aware of the materials which are sought to be utilized against him. The object is to enable the accused to defend himself properly. The idea behind the supply of copies is to put him on notice of what he has to meet at the trial. The effect of non supply of copies has been considered by this Court in Noor Khan v. State of Rajasthan and Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble and Anr.SCC 749). It was held that non supply is not necessarily prejudicial to the accused. The Court has to give a definite finding about the prejudice or otherwise. Even the supervision notes cannot be utilized by the prosecution as a piece of material or evidence against the accused. If any reference is made before any court to the supervision notes as has noted above they are not to be taken note of by the concerned court. As many instances have come to light when the parties as in the present case make reference to the supervision notes the inevitable conclusion is that they have unauthorized Crl.M.C. 1867 2020 access to the official records.” 29. Further argued that the judgments and Naresh Kumar Yadav have been overruled by a 5 judge Constitutional Bench of the Hon‘ble Supreme Court in Para 92.12 of Sushila Aggarwal vs. State: 5 SCC 1 on a different issue i.e. limiting the grant of anticipatory bail to a particular period of time. Such issue is not in question in the present case. In this view of the matter the gist of what is recorded cannot be sought to be supplied by the Petitioner being barred under Section 172(3) Cr.P.C. Moreover the High Court Rules framed by this Court in Chapter XII Rule 1 & Rule 3 recorded as under: 1] When accused is entitled to see Police diaries or statement of a witness recorded by Police—The Police diaries called for under Section 172 of the Code of Criminal Procedure should not be shown to accused persons or to their agents or pleaders except under the circumstances stated in the second clause of Section 172 of the Code that is when they are used by a Police Officer who made them to refresh his memory or if the Court uses them for the purpose of contradicting such Police Officer. Sessions Judges and District Magistrates should issue such orders as are necessary to guard against the Police diaries being inspected by person not entitled to see them. The right of an accused person to be furnished with a copy of a statement of a person whom the prosecution proposes to examine as its witness whether this statement has been recorded in a police diary or otherwise is dealt with in Sections 162 and 173 Crl.M.C. 1867 2020 of the Code. Note—These restrictions do not apply to a person duly authorized to conduct the prosecution in any case. 3] Use of Police diary by Court As to be manner in which Police diaries may be used by Courts the in mind: The following remarks should be borne Provision of Section 172 that any Criminal Court may send for the Police diaries not as evidence in the case but to aid it in an inquiry or trial empowers the Court to use the diary not only for the purpose of enabling the Police officer who complied it to refresh his memory or for the purpose of contradicting him but for the purpose of tracing the investigation through its various stages the intervals which may have elapsed in it and the steps by which a confession may have been elicited or other important evidence may have been obtained. The Court may use the special diary not as evidence of any date fact or statement referred to in it but as containing indications of sources and lines of inquiry and as suggesting the names of persons whose evidence may be material for the purpose of doing justice between the State and the accused. Should the Court consider that any date fact or statement referred to in the Police diary is or may be material it cannot accept the diary as evidence in any sense of such date fact or statement and must before allowing any date fact or statement referred to in the diary to influence its mind establish such date fact or statement by evidence. Criminal Courts should avail themselves of the assistance of Police diaries for the purpose of discovering sources and lines of inquiry and the names of persons who may be in a position to give material evidence and should call for diaries for this purpose.” It is further submitted that it is not obligatory on part of the police Crl.M.C. 1867 2020 officer to record any statement made to him and he may do so if he feels it necessary. In this regard reference may be drawn to the decisions in Zahira Habibullah H. Sheikh and Anr. vs. State of Gujarat & Ors.:4 SCC 158 wherein it was held: “71. … Sub section of Section 161 of the Code provides that the competent police officer may examine orally any person supposed to be acquainted with the facts and circumstances of the case. Requirement is the examination by the police officer concerned. Sub section 3) is relevant and it requires the police officer to reduce to writing any statement made to him in the course of an examination under this section and if he does so he shall make a separate and true record of the statement of each such person whose statement he records. Statement made by a witness to the police officer during investigation may be reduced to writing. It is not obligatory on the part of the police officer to record any statement made to him. He may do so if he feels it necessary. What is enjoined by the section is a truthful disclosure by the person who is examined. …” 31. Reference may also be made in this regard to the 41st Report of the Law Commission of India wherein the Commission took the following view with respect to Section 161 Cr.P.C.: ““…14.9. It is of course true that the discretion allowed to a police officer to record or not to record any statement made to him during investigation is expressed in absolute terms. Such wide discretion naturally attracts suspicion. We can therefore readily understand why the previous Reports suggested some limitation which would Crl.M.C. 1867 2020 help to guide the exercise of this discretion. When however we come to consider the concrete situation with which the law here seeks to deal we find that there is for practical purposes no point in imposing a restriction on the judgment of the investigating officer. The reason is this. A police officer investigating a crime has to question and then to examine orally a large number of persons many of whom may have no useful information to give and much of the information is later found to be pointless. It would be too great a burden on him if he should be required by law to reduce into writing every statement made to him nor would it serve any purpose apart from distracting attention from the main task. It was for this reason we think that the Law Commission suggested in the earlier Report that the statement of only those persons whom the prosecution proposed to produce at the trial need be recorded. Even this requirement seems to us to be unworkable. The investigator does not always know what the result of his investigation is going to be nor does he necessarily know who will be produced at the trial. The proposed guide line is not therefore a helpful guide and we would hesitate to suggest it as such. Our view is that there is no need to place any fetter on the discretion of the stage of the police officer at investigation. therefore that because of …Any apprehension negligence or dishonesty a police officer my misuse his discretion in this connection does not appear well founded in practice however plausible it may appear on theoretical considerations. We feel it is better to leave it to the investigating officer to record only what in his judgment is worth recording and leave the rest to supervision. The permissive and discretionary provisions now contained in section 161and Crl.M.C. 1867 2020 “may reduce into writing” in sub sectionshould not be fettered down in any way. …” 32. While concluding his arguments Mr.Siddharth Luthra submitted that the Ld. Magistrate has rightly exercised his discretionary powers in his jurisdiction therefore this is not a fit case for exercise of extraordinary powers under section 482 Cr.P.C. and accordingly the petition deserves to I have heard learned counsel for the parties at length and perused the be dismissed. material available on record. 34. As discussed above learned counsel for the parties relied upon the judgments rendered by this Court and the Hon‘ble Supreme Court. The main issue to be considered by this Court is that whether statement of witness V.K. Jain recorded on 21.02.2018 but not signed by IO of the case is to be considered as a statement recorded under section 161 Cr.P.C. If yes further question arises whether relied upon judgments by the respondents are applicable in the facts and circumstances of the present case. 35. The petitioners have placed copy of statement of V.K. Jain which is reproduced as under: “Case FIR No.54 18 Dated 20 02 18 U s 186 332 353 120 B 342 504 506(II) 323 34 IPC PS Civil Lines Delhi Crl.M.C. 1867 2020 Examination of Sh. Vinod Kumar Jain S o Late Sh. Kalu Ram Jain R o H. No.57 Mera Bai Institute of Technology Campus Maharani Bagh Delhi age 60 years Mobile No.XXXXXXXXXX Any police officer making an investigation under this Chapter or any police officer not below such rank as the State Government may by general or special order prescribe in this behalf acting on the requisition of such officer may examine orally any person supposed to be acquainted with the facts and circumstances of the case. 2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. Crl.M.C. 1867 2020 3) The police officer may reduce into writing any statement made to him in the course of an examination under this section and if he does so he shall make a separate and true record of the statement of each such person whose statement he records.” 41. This Court in Ashutosh Verma vs. CBI: 2014 SCC OnLine Del 6931 has observed that even at the stage of scrutiny of documents under section 207 Cr.P.C. the Court shall supply all the documents to the accused even if the same were not relied upon by the prosecution. Further observed that the accused can ask for the documents that withheld his defence and would be prevented from properly defending himself until all the evidence collected during the course of investigation is given to the accused. Also observed that if there is a situation that arises wherein an accused seeks documents which support his case and do not support the case of prosecution and IO ignores these documents and forward only those documents which favours the prosecution in such a scenario it would be the duty of IO to make such documents available to the accused. In Shakuntla this Court held that the Courts while framing charges may not take into account the defence of the accused or the documents in custody of the accused which were not produced by the accused before the Investigating Officer or which did not form part of the Crl.M.C. 1867 2020 investigation but the Court is duty bound to consider the evidence collected by the Investigating Officer during the investigation of the case. However in the case in hand some documents were withheld by IO and not placed on record with chargesheet which is against the scheme provided under section 173(5) & 173(6) Cr.P.C. the said sections are reproduced as under: 173(5) When such report is in respect of a case to which section 170 applies the police officer shall forward to the Magistrate alongwith the report a. all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation b. the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses. 173(6) If the police officer is of opinion that any part of any such statement is not relevant to the subject matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such 43. Accordingly a conjoint reading of section 173(5) 173(6) and first proviso attached to section 207 of Cr.P.C. leaves no scope of doubt that it is bounden duty of the police officer to forward all the statements to the Crl.M.C. 1867 2020 accused. Magistrate mentioned in sub section(b) of Section 173 Cr.P.C. without any exception so as to enable the Magistrate to discharge his duty under section 207 of Cr.P.C. by furnishing copies of such documents to the It cannot be disputed that the duty of the investigating agency is to do free and fair investigation by bringing to the notice of the Court all the evidences collected during the investigation without pick and choose the one which does not support them. The accused has been provided with definite right under the provisions of Cr.P.C. and the constitutional mandate to face the charge against him by a fair investigation and trial. It is pertinent to mention here that in para 58 of the impugned order learned Sessions Court has differentiated the judgment of the State of NCT of Delhi vs. Ravikant Sharma & Ors.:2 SCC 764 and discussed in detail and opined that the said judgment is not applicable in the present case. However amendment in section 172 Cr.P.C. in the year 2009 made the judgment mentioned above inapplicable to the case in hand as the ‗Case Diary’ is a composite case diary including the statements recorded under section 161 Cr.P.C. 46. Whereas the prosecution has completely denied that no statement was Crl.M.C. 1867 2020 recorded on 21.02.2018 and only the oral statement is made by V.K. Jain. However admittedly in ‗Case Diary’ it is mentioned that he is giving statement in continuation of statement given on 21.02.2018. Thus stand of prosecution cannot be accepted which is contrary to their own record. It is pertinent to mention here that in the impugned order dated 24.07.2019 learned Revisional Court has recorded that since it is a record of oral examination of V.K. Jain by IO and is noted in the case diary this statement cannot be given being not recorded under section 161 Cr.P.C. however the same may be used during trial. 48. The aforementioned opinion in my view is perverse because of the reason that the statement dated 21.02.2018 is not oral but written one and said statement has been mentioned in various other documents and orders as discussed above thus it acquires the status of section 161 Cr.P.C. Moreover if statement dated 21.02.2018 is not taken into consideration at the time of passing the order on charge which is part of police record at subsequent stage however during trial it cannot be relied upon and benefit of the same will not be available to the accused person. 49. Regarding limitation although delay is duly explained in the petition however there is no applicability of Limitation Act on Section 482 Cr.P.C. Crl.M.C. 1867 2020 being the inherent powers of this Court. The said section is starting itself with a non obstante clause therefore this Court has power to exercise inherent powers where there is miscarriage of justice and abuse of process of law. Non applicability of Limitation Act and non providing of limitation period in Cr.P.C. with regard to Section 482 Cr.P.C. the intention of the legislature was not to restrict this Court to use these powers in appropriate cases. Thus raising the issue of limitation period about Section 482 Cr.P.C. is itself contrary to the intention of legislature and the very section itself. In this regard judgments relied upon by the respondent no.2are not applicable as facts and circumstances of those cases are different from the case in hand. 50. As far as the issue of source of document is concerned the Hon‘ble Supreme Court and various High Courts including the case of Pushpadevi M. Jatia vs. M.L. Wadhavan & Ors.: 3 SCC 367 relied upon by respondent no.2 held that the source of the evidence is not material as long as it is admissible under the law the same may be considered. If evidence is relevant it is admissible irrespective of how it is obtained. 51. Regarding the issue that order dated 22.04.2019 of learned ACMM Crl.M.C. 1867 2020 has not been challenged by the petitioners but only challenge the Revisional order however in my opinion this issue is no more res integra which has been decided in KunhayammedJUDGE Crl.M.C. 1867 2020

The powers of Revision Court are limited to the appreciation of the judgment or order of the court below: High Court of Delhi

Summoning of an accused is a serious matter and while issuing summons the Magistrate has to carefully scrutinize the evidence brought on record and find out the truthfulness of the allegations to determine whether the alleged offence is prima facie committed by the accused. The powers of Revisional Court are limited to the appreciation of the judgment/ order of the court below to the question whether there is any gross illegality, error apparent on record or error of law and the same was upheld by High Court of Delhi through the learned bench led by JUSTICE CHANDRA DHARI SINGH in the case of ANJANI GUPTA vs. THE STATE (NCT OF DELHI) & ANR [CRL.M.C. 2120/2018] on 08.03.2022. The facts of the case are that the marriage between the Petitioner and the son of the Respondent was solemnized according to Hindu rites and rituals. The relationship between the Petitioner and her in-laws was cordial in the beginning, however, it started to deteriorate with time. It was alleged by the Petitioner that her husband used to continuously torture, harass and humiliate her for dowry and other issues since the very beginning of marriage and was maltreated by him and his family members. Eventually, as the relationship between the Petitioner and her in-laws strained, both the parties filed cases against each other. In the instant Petition, the Petitioner has impugned the Order by way of which the learned Sessions Judge observed that a prima facie ground had been made out to allege that the Petitioner committed theft of the letters in possession of the Respondent as well as the Order wherein summons were issued to the Petitioner under Section 380 of the IPC. The counsel for the petitioner submitted that the Respondent is in a habit of filing false and frivolous complaints and cases against the Petitioner with the intention to torment and harass her. It was further contended that allegations made by the Respondent of theft under Section 380 of the IPC have no ground and are false as taking of certain letters belonging to the Respondent from her own matrimonial home cannot amount to theft. The Court held that prima facie an offence of theft was not made out against the Petitioner as the very ingredients of the offence under Section 380 of the IPC were not met. The Court observed that, “the summoning of an accused is a serious matter and the while issuing summons the Magistrate has to carefully scrutinize the evidence brought on record and find out the truthfulness of the allegations to determine whether the alleged offence is prima facie committed by the accused. The powers of Revisional Court are limited to the appreciation of the judgment/ order of the court below to the question whether there is any gross illegality, error apparent on record or error of law.” Click here to read the Judgment

IN THE HIGH COURT OF DELHI AT NEW DELHI 6th January 2022 8th March 2022 Reserved on : Pronounced on: CRL.M.C. 2120 2018 CRL.M.A. 7553 2018 & CRL.M.A. ANJANI GUPTA Petitioner Through: Mr. Arvind Varma Sr. Advocate with Mr. Abhishek Chhabra THE STATE& ANR Respondent Through: Mr. Raghuvinder Varma APP for State with SI Laukesh Kumar P.S. Preet Vihar. Mr. Puneet Goel Advocate for R HON’BLE MR. JUSTICE CHANDRA DHARI SINGH JUDGMENT CHANDRA DHARI SINGH J. The instant petition under Section 482 of the Code of Criminal Code 1973has been filed by the Petitioner against the impugned order dated 17th March 2018 passed by the learned Special JudgeCBI East District Karkardooma Courts New Delhi in Revision Petition No. 30 2018 arising out of Summoning Order dated 20th June 2015 passed in CC. NO. 901 13 titled as „Om Prakash Gupta vs. CRL.M.C. 2120 2018 Anjani Gupta‟ registered at Police Station Preet Vihar for offence punishable under Section 380 of the Indian Penal Code 1860Marriage between the Petitioner and the son of the Respondent No. 2 Alok Gupta was solemnized on 30th January 1990 according to Hindu rites and rituals and Respondent No. 2 is the father in law of the Petitioner. members. ii) The relationship between the Petitioner and her in laws was cordial in the beginning however it started to deteriorate with time. It has been alleged by the Petitioner that her husband used to continuously torture harass and humiliate her for dowry and other issues since the very beginning of marriage and was maltreated by him and his family iii) The Petitioner alleges that her husband was having an illicit relationship with his office receptionist which was supported by his family members but objected to by the Petitioner. It was alleged that she was subjected to continuous torture cruelty and inhumane treatment and was thrown out from her matrimonial house on 16th September 2011. iv) Eventually as the relationship between the Petitioner and her in laws strained both the parties filed cases against each other. One of the cases which has given rise to the instant petition is the case filed by the Petitioner under the Protection of Women from Domestic Violence Act 2005 registered as No. V 275 12. The said matter was heard by the learned Metropolitan Magistrate Mahila Court CRL.M.C. 2120 2018 East District Karkardooma Courts New Delhi and after consideration of arguments the learned Metropolitan Magistrate passed the Order dated 1st November 2013 wherein it was observed that the husband of the Petitioner is 50 percent owner of the co owned house bearing no. A 41 Swasthiya Vihar Delhi 110092 the Petitioner was residing on the first floor of the said matrimonial home till the day she was dispossessed from the house that is on 16th September 2011 and that there was a prima facie case that the husband of the Petitioner was having an illicit affair. The learned Metropolitan Magistrate held that in view of the above facts the Petitioner herein was entitled to the right of residence in the first floor of the abovementioned property. It was further directed by the learned Metropolitan Magistrate the Petitioner was restrained from interfering in the affairs of the Respondents at the ground floor and similarly the said Respondents were also restrained from interfering in the physical possession or enjoyment at the first floor of the property of the Petitioner. Respondent No. 2 filed a Revision Petition against the aforesaid Order however the same was dismissed by the learned Sessions Court vide Order dated 5th December 2013. v) On 4th July 2015 the Petitioner came to know that a notice of summons was issued by learned Additional Chief Metropolitan Magistrate East District Karkardooma Courts New Delhi against her vide Order dated 20th June 2015 in a complaint case filed by Respondent No. 2 titled „Om Prakash Gupta vs. Anjani Gupta‟ CC No. 901 12 PS Preet Vihar Delhi under Section 380 of the IPC for allegedly removing certain letters from the deemed possession of the Respondent No. 2 while he was not present at his house at the aforementioned address. CRL.M.C. 2120 2018 Aggrieved by the said Order the Petitioner filed a Criminal Petition which was disposed by a coordinate bench of this Court vide Order dated 12th January 2018 with liberty to file a Revision Petition against the Order of summoning. The Petitioner then preferred a Revision Petition against the Order dated 20th June 2015 which was also dismissed by the learned Sessions Court on 17th March 2018. vii) In the instant Petition the Petitioner has impugned the Order dated 17th March 2018 by way of which the learned Sessions Judge observed that a prima facie ground had been made out to allege that the Petitioner committed theft of the letters in possession of the Respondent No. 2 as well as the Order dated 20th June 2015 wherein summons were issued to the Petitioner under Section 380 of the IPC. 3. Mr. Arvind Varma learned senior counsel assisted by Mr. Abhishek Chhabra appears on behalf of the Petitioner and submits that while passing both the Orders the learned Additional Chief Metropolitan Magistrate and learned Sessions Court failed to appreciate that the Respondent No. 2 did not come before the Courts with clean hands. It is submitted that the Respondent No. 2 had been in a habit of filing false and frivolous complaints and cases against the Petitioner with the intention to torment and harass her. It is submitted by learned senior counsel that the Petitioner sought the relief of Right to Residence in her matrimonial home from which she was thrown out after 21 years of living there and the said right was granted by the learned Metropolitan Magistrate vide Order dated 1st November 2013 after elaborate appreciation of facts before it. The said CRL.M.C. 2120 2018 Order was passed with the directions to the Station House Officer of the concerned Police Station to render assistance in compliance of the Order. The Petitioner on several occasions tried to enter the premises for which a due right was granted to her the Respondent No. 2 and his family members restrained her from entering and deliberately locked the premises and went away. It is further submitted a key maker was called to peacefully open the door of the premises but the Petitioner could not enter the premises. Thereafter FIR bearing No. 430 13 was lodged under Section 406 498A 34 IPC at the Police Station DGB Road against the Respondent No. 2 and his family members. An investigation was carried into the matter for recovery of stridhan and other articles of the Petitioner that were lying at the said premises and at the part of the house where the Respondent No. 2 was residing. However even the Police officers were restricted to enter into the room where valuables of the Petitioner were lying and eventually the Respondent No. 2 and his wifelocked the room and left the premises. The Petitioner tried to enter her residence on other occasions but was unable to enter and then she sought the assistance of the local police to enter the premises. Learned senior counsel for the Petitioner submitted that the allegations made by the Respondent No. 2 of theft under Section 380 of the IPC have no ground and are false. Courts below have wrongly opined that allegedly taking of certain letters belonging to the Respondent No. 2 from her own matrimonial home amounted to theft. It is submitted that the Courts failed to appreciate that the appeal filed by the Respondent No. 2 against the Order granting Right of CRL.M.C. 2120 2018 Residence was dismissed in favour of the Petitioner and the Order of learned Metropolitan Magistrate was upheld by the learned Additional Sessions Judge Special Judge East Karkardooma Courts New Delhi yet when the Petitioner tried to enter her matrimonial home in pursuance of the right granted to her by the learned Metropolitan Magistrate in the first floor of the premises in question she was not allowed to take possession of the portion of the property. The Revision Petition was dismissed solely on the basis of the testimony of two witnesses neighbours which concealed the fact that the Police assistance was sought for execution of the Order granting Right of Residence. Learned senior counsel for the Petitioner relied upon the judgment of Hon‟ble Supreme Court in Pepsi Food & Ors vs. Special Judicial Magistrate & Ors AIR 1998 SC 128 and submitted that the summoning of an accused is a serious matter and the while issuing summons the Magistrate has to carefully scrutinize the evidence brought on record and find out the truthfulness of the allegations to determine whether the alleged offence is prima facie committed by the accused. It is further submitted on behalf of the Petitioner that the Respondent No. 2 was never the owner or even the tenant of the premises in question and the same was in the name of the son and wife of Respondent No. 2. Therefore it cannot be said that the Respondent No. 2 was in possession of the subject property when he was not present at the premises. Further since the Petitioner was residing at the premises for 21 years and was subsequently granted the Right of Residence it could not have been presumed that all letters put in the mailbox of the premises CRL.M.C. 2120 2018 belonged to the Respondent No. 2 or were in his exclusive possession. It is submitted that even at the stage of pre summoning evidence the Respondent No. 2 was not able to establish that the post mails belonged to him and further he was not able to give a description of the said 11. Learned senior counsel appearing on behalf of the Petitioner submitted that in the alleged CCTV footage relied upon by the Respondent No. 2 the Petitioner was seen approaching the house under the Police protection which was made permissible by the Order dated 1st November 2013 and under such assistance and presence of the Police officials neither parties could have removed the belongings of each other. It is submitted that by merely picking up certain letters lying at the premises the offence of theft under Section 380 of the IPC could not have been made out. Given that the Petitioner too had been living there for more than 20 years there is a high probability that any letter being received at the premises could have belonged to her. The Respondent No.2 failed to establish that the contents of any of these letters were such that their absence caused any loss or harm to him. It is submitted by learned senior counsel for the Petitioner that in light of the above arguments the impugned Order dated 17th March 2018 arising out of the summoning Order dated 20th June 2015 is bad in law erroneous unreasonable and suffering from patent illegality and is liable to be set aside. 13. Per Contra Mr. Puneet Goel learned counsel appearing on behalf of Respondent No. 2 vehemently opposed the present Petition and submitted that the learned Sessions Court has rightly upheld the Order of CRL.M.C. 2120 2018 summoning dated 20th June 2015 and there is no error in either of the Orders passed. 14. Learned counsel appearing on behalf of the Respondent No. 2 submitted that the Order passed by the learned Metropolitan Magistrate dated 1st November 2013 granting the Right of Residence was limited to the first floor of the premises in question and its further use and occupancy the right however did not subsist in breaking the locks of the house and enter forcefully. The Petitioner had brought about a key maker to the premises and broke into the house which was in no manner whatsoever permitted by the Order of the learned Metropolitan Magistrate. It is submitted that on 23rd November 2013 the Petitioner broke into the premises of the Respondent No. 2 while he and his wife were out of the Delhi. The neighbours of the Respondent No. 2 called the Police officials upon which the Petitioner put her locks on the front gate of the house. Further on 24th November 2013 the Petitioner again visited the house of the Respondent No. 2 broke open the lock of the second door and again the Police was called. Before leaving the premises the Petitioner removed postal letters from the post box of the Respondent No. 2 which contained valuable documents that were lying in the gallery of the house. The same was also recorded in the CCTV installed in the house and the footage was also produced before the learned Additional Chief Metropolitan Magistrate. Hence the Petitioner was liable of offences under Section 379 380 447 448 454 453 of the CRL.M.C. 2120 2018 16. Learned Additional Chief Metropolitan Magistrate observed that after perusal of the CCTV footage it was found that the Petitioner took in her hands postal letters lying on the ground floor and took few letters with her. The letters being on the ground floor the part of the house belonging to the Respondent No. 2 and in the post box of the Respondent No. 2 were in his deemed possession and removal of the same without his consent and knowledge amounted to theft. Moreover the dishonest intention of the Petitioner was reflective in the fact that she did not take the assistance of the police or any other legal authority for removing the letters in question. It is submitted by learned counsel appearing on behalf of Respondent No. 2 that there is no error in the Order dated 17th March 2018 arising out of Summoning Order dated 20th June 2015 and the instant petition is liable to be dismissed for being devoid of any merit. FINDINGS AND ANALYSIS 18. Heard learned counsel for the parties and perused the record. I have perused the impugned Order dated 17th March 2018 as well as Order dated 20th June 2015 whereby summons were issued against the It is settled position of law that while issuing summons to the accused the concerned Court has to be prima facie satisfied of the charges alleged against the accused. Hon‟ble Supreme Court in Pepsi Foods Ltd. v. Special Judicial Magistratehas observed as under: “Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to CRL.M.C. 2120 2018 that be sufficient support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the “11. We are in this case concerned only with the question as to whether on a reading of the complaint a prima facie case has been made out or not to issue process by the Magistrate. The law as regards issuance of process in criminal cases is well settled. At the complaint stage the Magistrate is merely concerned with the allegations made out in the complaint and has only to prima facie satisfy whether there are sufficient grounds to proceed against the accused and it is not the province of the Magistrate to enquire into a detailed discussion on the merits or demerits of the case. The scope of enquiry under Section 202 is extremely limited in the sense that the Magistrate at this stage is expected to examine prima facie the truth or falsehood of the 20. Further the matter of Fiona Shrikhande v. State of Maharashtra AIR 2014 SC 957 it was observed as laid down under: CRL.M.C. 2120 2018 allegations made in the complaint. Magistrate is not expected to embark upon a detailed discussion of the merits or demerits of the case but only consider the inherent probabilities apparent on the statement made in the complaint.” It can therefore be reasonably inferred that while issuing summons a prima facie appreciation of evidence coupled with application of judicial mind needs to be carried out for a summoning order to be just and legal. In the present matter the Revisional Court as well as the learned Additional Chief Metropolitan Magistrate were to examine whether the very basic tenets and ingredients of provision of theft under the IPC were being met by the Petitioner or not while prima facie making out a case against her. 22. To establish the prima facie offence under Section 380 the relevant provisions of the IPC may be looked into. The same are mentioned hereunder: “378. Theft—Whoever intending to take dishonestly any movable property out of the possession of any person without that person s consent moves that property in order to such taking is said to commit theft. Explanation 1. —A thing so long as it is attached to the earth not being movable property is not the subject of theft but it becomes capable of being the subject of theft as soon as it is severed from the earth. Explanation 2. —A moving effected by the same act which effects the severance may be a theft. Explanation 3. —A person is said to cause a thing to move by removing an obstacle which prevented it CRL.M.C. 2120 2018 from moving or by separating it from any other thing as well as by actually moving it. Explanation 4. —A person who by any means causes an animal to move is said to move that animal and to move everything which in consequence of the motion so caused is moved by that animal. Explanation 5. —The consent mentioned in the definition may be express or implied and may be given either by the person in possession or by any person having for that purpose authority either express or implied 380. Theft in dwelling house etc.—Whoever commits theft in any building tent or vessel which building tent or vessel is used as a human dwelling or used for the custody of property shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine.” A bare perusal of the provision for the offence of theft suggests that the person committing the offence shall firstly remove any movable property from the possession of a person secondly do so without his consent and thirdly remove such property with dishonest intention. In the instant case the Petitioner was alleged to have removed certain letters from the premises in question. To prima facie establish the offence of theft against her the abovementioned essentials need to be met. 23. The keywords used in the provision are “intending to take dishonestly” which provides that there must be an intention which is dishonest to remove the property from the possession of a person. Dishonestly has been defined under the IPC as under: CRL.M.C. 2120 2018 “24. Dishonestly —Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person is said to do that thing “dishonestly”. It is clear that the intention must be to cause wrongful gain to one and wrongful loss to another and in terms of theft while removing the movable property out of the possession of a person the person committing theft must have such kind of intention. In the present case it is a fact that the Petitioner had been living in the premises in question since the day she got married into the family and it was her matrimonial home. There is a high probability that any letters coming into the home could have been addressed to her. Since the post box is located at the entrance of the house and not usually on each floor there is a likelihood of the Petitioner‟s letters and mail being delivered in the very post box that was located on the ground floor of the house. Moreover the post also seldom contains generic material such as newspapers magazines testimonials etc. that are common to the household. Therefore even if the Petitioner picked up the letters lying on the floor of the part of the house in possession of the Respondent No. 2 the dishonest intention of causing wrongful gain to herself or any other person and wrongful loss to the Respondent No. 2 or anyone else was not established at the preliminary stage. There is barely any wrongful loss or gain that could not have been caused merely by picking up certain letters lying on the floor of the house. 24. The ingredient of dishonest intention is hence not found in the actions of the Petitioner. Consequently a prima facie offence could not CRL.M.C. 2120 2018 have been made out against the Petitioner under Section 380 of the IPC and thereby the Order dated 20th June 2015 passed and summons issued to the Petitioner were improper and erroneous to that effect. 25. Further even the Revisional Court had limited powers while exercising its jurisdiction as has been discussed in the matter of Hindustan Petroleum Corporation Ltd. vs Dilbahar Singh 9 SCC 78 by the Hon‟ble Supreme Court which observed as under: “43. The consideration or examination of evidence by the High Court in revisional jurisdiction under these Acts is confined to find out facts recorded by the Court Authority below is according to the law and does not suffer from any error of law. … to satisfy itself to the regularity correctness legality or propriety of the impugned decision or the order the High Court shall not exercise its power as an appellate power to re appreciate or re assess the evidence for coming to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a court of first appeal. Where the High Court is required to be satisfied that the decision is according to law it may examine whether the Order impugned illegality or irregularity.” from procedural it suffers 26. The above mentioned observation of the Hon‟ble Supreme Court read with Section 397 of the Cr.P.C. elucidates that the powers of Revisional Court are limited to the appreciation of the judgment order of the court below to the question whether there is any gross illegality error apparent on record or error of law. The Revisional Court ought to have CRL.M.C. 2120 2018 appreciated that the Court below did not consider that prima facie an offence of theft was not made out against the Petitioner as the very ingredients of the offence under Section 380 of the IPC were not met. There was an apparent error of law while passing the Order of summons and the Revisional Court wrongly upheld the Order dated 20th June 2015 vide its Order dated 17th March 2018. 27. The instant dispute has arisen out of matrimonial discord between two people which has also led to filing of more than 50 criminal and civil cases between not only the husband and the wife but also their family members. It is found that for the sole purpose of harassing the other party such cases are filed by persons with no just cause or reason and substantial ground for allegations. The FIR by the Respondent No. 2 accusing Petitioner of charges of theft seems to be one more such attempt to harass her for making a case out of no substantial instance. Such kind of practices cannot be condoned and are in gross misuse of process of 28. Keeping in view the arguments advanced facts presented contents of the impugned Order and observations of the Courts below this Court does not find any cogent reason to allow the operation of the impugned Order dated 17th March 2018 passed by learned Special JudgeCBI East District Karkardooma Courts New Delhi in Revision Petition No. 30 2018. 29. Consequently the summoning Order dated 20th June 2015 passed by Additional Chief Metropolitan Magistrate East District Karkardooma CRL.M.C. 2120 2018 Courts Delhi and Order dated 17th March 2018 passed by Special Judge PC Act) CBI East District Karkardooma Courts Delhi upholding the summoning Order are set aside. Accordingly the petition is allowed and disposed of. 30. Pending applications if any also stand disposed of. 31. The judgment be uploaded on the website forthwith. CHANDRA DHARI SINGH) March 8 2022 CRL.M.C. 2120 2018

The trauma hinders the growth of the child and also leads to various psychological problems.: Delhi High Court

It has been observed by the Supreme Court that paramount consideration is to be given to the wellbeing of a child whose mental psyche is vulnerable. It is well known that trauma suffered by a young girl child of 16 years of age is long lasting and it take years for a child to come out of that trauma as held by the High Court of Delhi through the learned bench led by Hon’ble Mr. Justice Subramonium Prasad in the case of Anil Kumar v. State (BAIL APPLN. 3971/2021). The brief facts leading to the present case are that an FIR was registered on the complaint of the prosecutrix, who is 16 years of age. It is stated that the prosecutrix resides with her parents and she used to take Mathematics classes from the petitioner since 10th Standard. It is stated that on the first day of her offline class, the petitioner asked her to stay back to understand the concept taught on the previous day. He gave his notebook and went to take classes for 10th Standard. It is stated that when 10th Standard students left, the petitioner came to her to clear her doubts. He asked the prosecutrix about her 10th Standard marks and asked for a party. It is stated that when the prosecutrix packed her bag and was leaving, the petitioner stopped her and said that she was very cute and touched her cheek, closed the door and kissed her on her right cheek and then on the left. The prosecutrix was scared since she was alone, so she did not scream. She left but she was feeling extremely uncomfortable because of the manner in which the petitioner had hugged her three to four times as well as the manner in which he was talking to her. It is stated that she called her parents on her way home. Material on record reveals that after she went home, a PCR call was made and it was recorded vide DD Entry No. 49A. The Police reached the residence of the prosecutrix and met the prosecutrix along with her parents wherein her mother told the Police that the prosecutrix had been molested by the petitioner herein. It is stated that an NGO was called and the victim was counselled. Medical examination was conducted. A written complaint was handed over to the Police and the instant was registered at Police Station Prashant Vihar for offences under Section 354, 354A IPC read with Section 8 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) was lodged. The petitioner was arrested on the same day i.e., 30.08.2021. The petitioner filed an application for grant of bail which was dismissed vide order dated 04.10.2021 passed by the learned Additional Sessions Judge stating that a reading of the facts shows that an offence under Section 10 of the POCSO Act is made out which is a more serious offence than the offence under Section 8 of the POCSO Act. The petitioner has approached this Court by filing the instant bail application. After the perusal of the facts and arguments by the respective parties, the Hon’ble Court held, “Granting bail to the petitioner at this stage i.e., even before the charges are framed, will lead to defeating the very purpose and the object of the POCSO Act. This Court is, therefore, not inclined to grant bail to the petitioner at this stage.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision 16th November 2021 IN THE MATTER OF: BAIL APPLN. 3971 2021 SUBRAMONIUM PRASAD J. ANIL KUMAR Petitioner Through Mr. Mohit Mathur Senior Advocate with Mr. Vijay S Bishnoi Mr.Harsh Gautam Advocates Through Mr. Sanjeev Sabharwal APP for the State with SI Babita Police Station Prashant Vihar Respondent HON BLE MR. JUSTICE SUBRAMONIUM PRASAD The petitioner seeks bail in FIR No. 558 2021 dated 30.08.2021 registered at Police Station Prashant Vihar for offences under Section 354 354A IPC read with Section 8 of the Protection of Children from Sexual Offences Act 2012was lodged. The petitioner was arrested on the same day i.e. 30.08.2021. Charge sheet stands filed. The petitioner filed an application for grant of bail which was dismissed vide order dated 04.10.2021 passed by the learned Additional Sessions Judge stating that a reading of the facts shows that an offence under Section 10 of the POCSO Act is made out which is a more serious offence than the offence under Section 8 of the POCSO Act. The petitioner has approached this Court by filing the instant bail application. 3. Mr. Mohit Mathur learned Senior Advocate contends that a reading of the FIR shows that no offence under Section 8 of the POCSO Act against the petitioner is made out. He states that Section 7 of the POCSO Act defines sexual assault and the allegations in the FIR are not sufficient to bring the case within the ambit of Section 7 of the POCSO Act and therefore the petitioner cannot be punished under Section 8 of the POCSO Act. He states that assuming that there is sufficient material to proceed against the petitioner for an offence under Section 8 of the POCSO Act for which the maximum punishment is only 5 years. He contends that the petitioner is in custody from 30.08.2021 and charge sheet stands filed and therefore there is no chance of the petitioner tampering with the evidence. BAIL APPLN. 3971 2021 4. Mr. Mohit Mathur learned Senior Advocate strenuously contends that after the incident the prosecutrix first went to a rival coaching centre i.e. Ajay Dang s Coaching Institute at 12:53 PM. He states that had the prosecutrix been mentally traumatised she would not have gone to the rival coaching centre and would have instead headed straight to her home. He further states that the prosecutrix did not shout and that such a conduct indicates that the prosecutrix was not subjected to any trauma. He states that the petitioner is only a teacher in the institute and is not the owner of the institute. Learned Senior Counsel would rely on the judgement of the Supreme Court in Gurcharan Singh & Ors. v. State1978SCC 118 to state that the petitioner should be granted bail. Per contra Mr. Sanjeev Sabharwal learned APP contends that with the observations made by the learned Sessions Judge that an offence under Section 10 of the POCSO Act is made out in the present case does not require interference. He relies on Section 9(l) and 9(p) of the POCSO Act to contend that the prosecutrix is a victim of aggravated sexual assault for which the punishment is prescribed under Section 10 of the POCSO Act and provides for a minimum imprisonment for a period of 5 years. He states that the prosecutrix was alone in the institution from 12:30 PM to 1:12PM and this is substantiated by the fact that in the CCTV footage no person has been seen entering leaving the place. He further states that in view of the seriousness of the offence and in view of the fact that the petitioner is a tutor there is a possibility of the petitioner exerting pressure on the prosecutrix. BAIL APPLN. 3971 2021 Heard Mr. Mohit Mathur learned Senior Advocate appearing for the petitioner and Mr. Sanjeev Sabharwal learned APP for the State and perused the material on record. The POCSO Act has been enacted to protect children from offences of sexual assault sexual harassment and pornography. This Act was introduced because child victims were not getting adequate protection because the provisions in the IPC were not sufficient to safeguard the interests of the child victims. It was found that an Act should be brought out which operates in a manner that the best interest and well being of the child are regarded as being of paramount importance at every stage to ensure healthy physical emotional intellectual and societal development of the The Supreme Court has elaborated on the reason for bringing out the POCSO Act in Eera through Dr. Manjula Krippendorf v. State of NCT of Delhi & Anr 2017SCC 133. The relevant portion of the said judgment child. reads as under: the children “20. The purpose of referring to the Statement of the Preamble of Objects and Reasons and the POCSO Act is to appreciate that the very purpose of bringing a legislation of the present nature is to the sexual assault harassment and exploitation and to secure the best interest of the child. On an avid and diligent discernment of the Preamble it is manifest that it recognises the necessity of the right to privacy and confidentiality of a child to be protected and respected by every person by all means and through all stages of a judicial process involving the child. Best interest and well being are regarded as being of paramount importance at every stage to ensure the healthy BAIL APPLN. 3971 2021 emotional physical development of the child. There is also a stipulation that sexual exploitation and sexual abuse are heinous offences and need to be effectively addressed. The Statement of Objects and Reasons provides regard being had to the constitutional mandate to direct its policy towards securing that the tender age of children is not abused and their childhood is protected against exploitation and they are given facilities to develop in a healthy manner and in conditions of freedom and dignity. There is also a mention which is quite significant that interest of the child both as a victim as well as a witness needs to be protected. The stress is on providing child friendly procedure. Dignity of the child has been laid immense emphasis in the scheme of legislation. Protection and interest occupy the seminal place in the text of the POCSO Act.” The fact that the petitioner went to a rival tutor s office immediately after the offence cannot be taken as relevant criterion here and it cannot be said that she has been asked to file the instant complaint. It can be said that the prosecutrix was so disturbed by the action of the petitioner that she went to the rival tutor to secure admission there. She has similarly given a call to her parents and went home and a complaint was given to the Police. 10. The prosecutrix is only a 16 year old child. It has been observed by the Supreme Court that paramount consideration is to be given to the well being of a child whose mental psyche is vulnerable. It is well known that trauma suffered by a young girl child of 16 years of age is long lasting and it take years for a child to come out of that trauma. The trauma hinders the growth of the child and also leads to various psychological problems. The petitioner is a tutor who can influence the witnesses. If charged for offence BAIL APPLN. 3971 2021 under Section 9 of the POCSO Act the petitioner can be sentenced for a minimum incarceration of 5 years. 11. Granting bail to the petitioner at this stage i.e. even before the charges are framed will lead to defeating the very purpose and the object of the POCSO Act. This Court is therefore not inclined to grant bail to the 12. The bail application is rejected. Pending application(s) if any stand 13. Be it noted that this Court has not made any observations on the petitioner at this stage. disposed of. merits of the case. NOVEMBER 16 2021 SUBRAMONIUM PRASAD J BAIL APPLN. 3971 2021

Arbitrators like Courts, are legally bound to resolve the disputes in accordance with public policy of the law: Bombay High Court

There is no inherent lack of jurisdiction of the Arbitral Tribunal in considering a claim for specific performance of the MOU. The Arbitral Tribunal has jurisdiction to entertain, try and adjudicate upon such claims arising out of not in action in rem. In the case of Arbitration Agreement, claims could only be adjudicated upon by Arbitral Tribunal and not barred expressly or by necessary implication. Thus, no question of inherent lack of jurisdiction in the Arbitral Tribunal to decide those claims will arise. This remarkable judgment was passed by the Bombay High Court in the matter of TIRUPATI SHOPPING CENTRE PREMISES V SHABAYESHA CONSTRUCTION COMPANY PRIVATE LIMITED [WRIT PETITION (STAMP) NO. 9105 OF 2021] by Honourable Justice R. D. Dhanuka and Honourable Justice V. G. Bisht. By this Writ Petition filed under Articles 226, the petitioner has challenged the order dated 19 January 2021 which was passed by the learned Arbitrator wherein the Application filed by the petitioner under Section 16 of the Arbitration and Conciliation Act, 1996 was dismissed. The respondent had executed agreements for sale with the unit purchasers in the year 1995 and agreed to form a society within the timeline prescribed under Rule 8 of the Maharashtra Ownership Flats. The respondent had also covenanted that it would execute a conveyance of the property within four months of the registration of the society. The petitioner submitted that the respondent did not disclose any further construction that was proposed to be carried out on the said property at the time of entering into the agreements for sale with various unit purchasers, though, under Clause 6 of the agreement for sale, the respondent had expressly covenanted that the residential FSI from the property would be available only to the society after its registration. Since the respondent failed to execute a Deed of Conveyance in favour of the petitioner society in spite of receiving full consideration from the flat purchasers even after expiry of eight years after the execution of the MOU.  The petitioner filed an application before the Competent Authority under Section 11 of the Maharashtra Ownership Flats Act, 1963 for a unilateral Deemed Conveyance. The dispute was then referred to Arbitration under the Arbitration clause forming part of the Agreement entered into between the parties.  The HC observed that “the Arbitral Tribunal has jurisdiction to decide all the claims which can be decided by a Civil Court unless the same is specifically barred either expressly or by necessary implication. The Arbitral Tribunal has rightly held that parties are neither stopped nor there is a bar under the provisions of law to establish its right, title, or interest, independent of such Deemed Conveyance Certificate. Such certificate will have no bar in the matter where the right, title, and interest of any party is adjudicated before a forum which is conferred with such jurisdiction to adjudicate and deal with after perusing the oral and documentary evidence and decide the dispute between the parties. Such adjudication is clearly independent of the Act performed under Section 11 of the MOFA.” Also, the proceedings under Section 11 of the MOFA are filed in view of the default committed by the promoter to execute a Deed of Conveyance in favour of the society by complying with its application under the provisions of the MOFA by executing a Deed of Conveyance. The Competent Authority is thus empowered to pass an order of Deemed Conveyance ex-parte. Thus, the Court stated, “Such order passed by the Competent Authority does not create a title in respect of such property conclusively in favour of the society. Such an order of Deemed Conveyance is subject to the final adjudication of title in the appropriate Civil proceedings either before the Civil Court or by Arbitral Tribunal in case of their being an Arbitration Agreement between the parties. There is no such provision under MOFA that the order passed by the Competent Authority under Section 11 of the MOFA is final in all respect including on the issue of title in the property and bars the Civil Court or the Arbitral Tribunal from deciding the issue of title independently.”

on 22 04 2021 on 23 04 bdpwpl 9105.21.docIN THE HIGH COURT OF JUDICATURE AT BOMBAYCIVIL APPELLATE JURISDICTIONWRIT PETITIONNO. 9105 OF 2021Tirupati Shopping Centre PremisesCo op. Society Limited a society registered under the provisions of theMaharashtra Co operative Societies Act 1960having its registered Office at C.T.S. Nos. 308and 309 S. V. Road SantacruzMumbai 400 054. … PetitionerVersusShabayesha Construction Company Private Limiteda Company incorporated under the provisions of theCompanies Act 1956 and deemed to be incorporatedunder the Companies Act 2013 having its RegisteredOffice at A. N. House 1st Floor 31st Road TPS III BandraMumbai 400 050. … Respondent Dr. Veerendra Tulzapurkar Senior Advocate a w Mr. Sanjay Kadamand Mr. Rohan Kadam i by M s. Kadam & Company Advocates forthe Petitioner.Mr. Sanjay Jain a w Mr. Nishant Sasidharan Mr. Darshan Mehta Ms.Shrushtri Dalal and Ms. Apeksha Sharma Advocates for theRespondent. CORAM : R. D. DHANUKA & V. G. BISHT JJ.RESERVED DATE : 12th APRIL 2021PRONOUNCED DATE : 22nd APRIL 2021JUDGMENT: .By this Writ Petition filed under Articles 226 and 227 of theConstitution of India the petitioner has impugned the order dated 19th on 22 04 2021 on 23 04 bdp2wpl 9105.21.docJanuary 2021 passed by the learned Arbitrator dismissing theApplication filed by the petitioner under Section 16 of the Arbitrationand Conciliation Act 1996and holdingthat the Arbitral Tribunal has jurisdiction to entertain claims laid downby the respondent.Some of the relevant facts for the purpose of deciding this WritPetition are as under : 2.Mr. Sanjay Jain learned counsel for the respondent at thethreshold raised a preliminary objection that this writ petition filedunder Articles 226 and 227 of the Constitution of India impugning theorder passed by the Arbitral Tribunal rejecting the application filed bythe respondent in such arbitral proceedings raising a plea of jurisdictionraised by such respondent is not maintainable. The remedy if any ofthe petitionerwould be to challenge the saidorder passed by the Arbitral Tribunal along with final award if thepetitioner is aggrieved by the final order under Section 34 of theArbitration Act. Learned counsel invited our attention to variousparagraphs of the judgment of the Hon’ble Supreme Court in case ofDeep Industries Limited v s. Oil and Natural Gas Corporation andLimited and Anr. 15 SCC 706.3.Dr. Veerendra Tulzapurkar learned senior counsel for thepetitioner on the other hand would contend that the writ petition filedby his client under Articles 226 and 227 of the Constitution of India ismaintainable in view of the principles of law laid down by the Hon’bleSupreme Court in case of Deep Industries Limitedand othersubsequent judgments. In view of these rival submissions made by thelearned counsel for the parties we shall decide the issue of on 22 04 2021 on 23 04 bdp3wpl 9105.21.docmaintainability of this writ petition impugning the order passed by theArbitral Tribunal rejecting the application filed by the petitioner underSection 16 of the Arbitration Act and holding that the Arbitral Tribunalhas jurisdiction to adjudicate upon the claims made by the respondent(original claimant).4.It was the case of the petitioner society that the respondent hadexecuted agreements for sale with the unit purchasers in the year 1995and agreed to form a society within the timeline prescribed under Rule8 of the Maharashtra Ownership FlatsRules 1964in the year 2016 the petitioner filedan application bearing no. 516 before the Competent Authorityunder Section 11 of the Maharashtra Ownership Flats Act 1963for a unilateral Deemed Conveyance. The said on 22 04 2021 on 23 04 bdp4wpl 9105.21.docapplication was resisted by the respondent. The said application wasdismissed by the Competent Authority on 22nd February 2017 onaccount of the fact that there was no occupation certificate issued inrespect of the building. Liberty was however granted to the petitionerto file another application.6.On 3rd March 2018 the petitioner filed an application bearingno. 318 for a unilateral Deemed Conveyance against therespondent before the Competent Authority under Section 11 of theMOFA. On 10th August 2018 the Competent Authority passed anorder allowing the said application filed by the petitioner. In the saidorder the Competent Authority held that the respondent builder hadmade a claim in respect of two basements open parking unsoldpremises and balance FSI TDR in the said building. However as pervarious Courts citations developer does not get any rights besides onthe unsold flats and balance FSI TDR after prescribed period of fourmonths after registration of society. Therefore claim made by thebuilder in respect of common spaces and TDR was false. The builderhas rights in respect of unsold premises shops only in the said building.The objections raised by the builder in this regard are not legal. TheCompetent Authority directed the concerned Sub Registrar or any otherappropriate Registration Officer under the Registration Act 1908 toregister ex parte Deemed Conveyance Deed conveying right title andinterest of the developer in property described in Deemed ConveyanceCertificate in the name of the society after adjudication by Collector ofStamp.7.It was ordered by the Competent Authority that the said DeemedConveyance application filed by the society in respect of Survey No. on 22 04 2021 on 23 04 bdp5wpl 9105.21.doc41 CTS No.308 309 S. V. Road SantacruzMumbai 400 054was allowed by granting ex parte Deemed Conveyance. Pursuant tothe said order dated 10th August 2018 the Competent Authority andDeputy District Registrar Co operative Society III Mumbai issued acertificate under Section 11(4) of the MOFA and certified that this casewas proper for ex parte execution of Conveyance Deed of the right title and interest of the promoters of the land of area 1718.2 sq. mtrs. ofdescription TPS No. 4 Santacruz CTS H 309 Division H Ward CitySurvey Officer Bandra limit Tal. Andheri Mumbai Suburban Districtin the name of the petitioner society. The respondent did not challengethe said order passed by the Competent Authority dated 10th August 2018 or the said Deemed Conveyance Certificate issued under Section11(4) of the MOFA.8.The dispute arose between the parties which was referred toArbitration under the Arbitration clause forming part of the Agreemententered into between the parties. On 21st August 2020 the petitionerfiled a statement of claim before the Arbitral Tribunal against thepetitioner inter alia praying for various reliefs. The petitioner filed anapplication in the month of September 2020 in the said Statement ofClaim before the Arbitral Tribunal under Section 16 of the ArbitrationAct inter alia praying for dismissal of the said claim for want ofjurisdiction. The said application under Section 16 was opposed by therespondent. The Arbitral Tribunal passed the impugned order dated19th January 2021 rejecting the said application filed by the petitionerand holding that the Arbitral Tribunal has jurisdiction to entertain andadjudicate upon the claims made by the respondent.9.Dr. Tulzapurkar learned Senior Counsel for the petitioner on 22 04 2021 on 23 04 bdp6wpl 9105.21.docinvited out attention to various provisions of the Agreement enteredinto between the parties the correspondence exchanged between theparties averments made in the statement of claim and in the pleadingsfiled by the parties in the application filed by his client under Section16 of the Arbitration Act before the Arbitral Tribunal. It is submittedby the learned senior counsel that the petitioner had filed an applicationunder Section 11 of the MOFA before the Competent Authority seekingan order for Deemed Conveyance in view of the respondent havingfailed to comply with its duties and obligations to execute a Deed ofConveyance in favour of the petitioner society within the timeprescribed. The Competent Authority has already passed a quasi judicial order granting Deemed Conveyance in favour of the petitioner.The Competent Authority has also issued a Deemed ConveyanceCertificate in favour of the petitioner society. The said order passed bythe Competent Authority under Section 11 was a quasi judicial orderwhich has attained finality. The respondent could not have claimed inthe arbitral proceedings effectively seeking a reversal of the said quasi judicial order granting Deemed Conveyance by reserving the FSI TDRin respect of the plot which was subject matter of the said order ofDeemed Conveyance in favour of the petitioner.10.It is submitted that the Arbitral Tribunal can never examine thevalidity or nullity of a quasi judicial order passed under a statute. Suchclaim for specific performance if any can only be maintained beforethe Courts and not before the Arbitral Forum. The CompetentAuthority has already decided the title in respect of the said property infavour of the petitioner. The said order passed by the said quasi judicial authority would operate in rem and thus no such arbitralproceedings as filed by the respondent in respect of such title certificate on 22 04 2021 on 23 04 bdp7wpl 9105.21.docwhich operated in rem were at all maintainable before the ArbitralTribunal. The Arbitral Tribunal has assumed jurisdiction on a perversefinding that the MOFA does not confer any adjudicatory function of theCompetent Authority. Since the Arbitral Tribunal has committed afundamental and patent error in the impugned order this writ petitionfiled by the petitioner under Article 226 read with Article 227 of theConstitution of India is thus maintainable. It is submitted that it was acase of lack of inherent jurisdiction of the Arbitral Tribunal in decidinga right in rem. This Court has thus ample power in such case toexercise powers under Article 226 or 227 of the Constitution of India.11.It is submitted that the Arbitral Tribunal itself had no jurisdictionto entertain any such claim which would nullify the effect of the saidquasi judicial order which has already attained finality. Learned seniorcounsel placed reliance on the judgment of Supreme Court in case ofBooz Allen and Hamilton Inc. v s. SBI Home Finance Limited andOrs. 5 SCC 532 in support of this submission. He invited ourattention to paragraphs 15 to 24 of the judgment of the Hon’bleSupreme Court in case of Deep Industries Limitedand wouldsubmit that since it was clear case of inherent lack of jurisdiction of theArbitral Tribunal to entertain the claims made by the respondent whichif awarded would nullify the effect of an order of Deemed Conveyanceof the property passed in favour of the petitioner this petition filedunder Articles 226 and 227 of the Constitution of India is maintainable.12.It is submitted by the learned senior counsel that the Hon’bleSupreme Court in the said judgment in case of Deep IndustriesLimitedhas distinguished its earlier judgment in case of SBPand Company v s. Patel Engineering Ltd. and Anr. 8 SCC on 22 04 2021 on 23 04 bdp8wpl 9105.21.doc618. He submits that the judgment of Hon’ble Supreme Court in caseof Deep Industries Limitedthus would apply to the facts of thiscase. Learned senior counsel also relied upon the judgment of Hon’bleSupreme Court in case of Vidya Drolia and Ors. v s. Durga TradingCorporation 2 SCC 1 in support of the aforesaid submission.13.Mr. Sanjay Jain learned counsel for the respondent on the otherhand invited our attention to various provisions of the MOU enteredinto between the petitioner and the respondent and various avermentsmade in the statement of claim filed by his client before the ArbitralTribunal. It is submitted by the learned counsel that the respondent hasnot challenged the impugned order passed by the Competent Authorityunder Section 11 of the MOFA before the Arbitral Tribunal. Therespondent has prayed for declaration that the agreement dated 6th June 2008 entered into between the parties is valid subsisting and bindingon the petitioner herein and has prayed for a specific performance ofthe said agreement. He invited out attention to the prayer clauses in thesaid statement of claim and would submit that his client has alsoprayed for a monetary reliefs in the sum of Rs.75 00 000 in prayerclausein the sum of Rs.529 99 25 925 in prayer clausewhichwas in alternate and without prejudice to prayer clausestoandalso has claimed an amount of Rs.584 36 19 879 in prayer clausein support of argument that theArbitral Tribunal has power to decide the subsidiary rights of a party.18.Learned counsel for the respondent invited our attention toparagraphs 4 5 16 to 22 45 and 46 of the judgment of the Hon’bleSupreme Court in case of Deep Industries Limitedand wouldsubmit that the Hon’ble Supreme Court has not considered in the saidjudgment that a writ petition was maintainable under Articles 226 and227 of the Constitution of India against an order passed by the ArbitralTribunal rejecting an application under Section 16 of the ArbitrationAct. He submits that in the said judgment the Hon’ble Supreme Courthas considered the facts where application under Section 16 filed bythe respondent in the arbitral proceedings was dismissed by the ArbitralTribunal. The claimant had also filed an application under Section 17of the Arbitration Act before the learned Arbitrator. The learnedArbitrator had stayed the operation of the order passed under Section17 of the Arbitration Act. on 22 04 2021 on 23 04 bdp11wpl 9105.21.doc19.The claimant had also applied for amendment to the statement ofclaim as well as the said application under Section 17 to challenge theorder dated 15th February 2018. The learned Arbitrator had allowedthe said application for amendment by order dated 10th March 2018.The said order dated 9th May 2018 disposing of the application filed bythe claimant under Section 17 was disposed of by the learned Arbitratorin which he had granted stay of the operation of the order dated 15thFebruary 2018 on the condition that two years ban black listing wouldonly operate if the claimant ultimately losses any final arbitrationproceedings was impugned before the City Civil Court Ahmedabad.The City Civil Court disposed of the said appeal against the orderpassed by the learned Arbitrator under Section 17 of the ArbitrationAct upholding the order passed by the learned Arbitrator anddismissed the said appeal.20.That order passed by the City Civil Court Ahmedabad in theappeal under Section 37 was challenged before the Gujarat High Courtby invoking Article 227 of the Constitution of India. The Gujarat HighCourt without deciding the jurisdictional issue allowed the said writpetition and set aside the order passed by the City Civil Court Ahmedabad.21.It is submitted by the learned counsel for the respondent that aseven Judge bench of the Hon’ble Supreme Court in case of SBP andCompanyhas held that a party aggrieved by an order ofArbitral Tribunal under Section 16 of the Arbitration Act unless has aright of appeal under Section 37 of the Act has to wait until the awardis passed by the Arbitral Tribunal. The object of minimizing judicialintervention while the matter is arbitrated upon will be defeated if the on 22 04 2021 on 23 04 bdp12wpl 9105.21.docHigh Court could be approached under Article 227 or under Article 226of the Constitution of India against every order made by the ArbitralTribunal. It is submitted that the facts before the Hon’ble SupremeCourt in the said judgment in case of Deep Industries Limitedand would submit that the Hon’bleSupreme Court in the said latest judgment has already held that theArbitral Tribunal has been given jurisdiction to decide on the subjectmatter of arbitrability. They are required to identify specific publicpolicy in order to determine the subject matter arbitrability. Merely because a matter verges on a prohibited territory should not by in itselfstop the Arbitrator from deciding the matter. He should be careful inconsidering the question of non arbitrability.23.It is submitted that it was not the case of the petitioner that theprayer for specific performance in the statement of claim filed by therespondent cannot be granted by the Arbitral Tribunal. The ArbitralTribunal has recorded finding that the reliefs claimed by the respondentare an action in personam and not right in rem. The reliefs seekingspecific performance of the provisions of MOU are arbitrable. Suchfindings rendered by the Arbitral Tribunal being not perverse cannot beinterfered by this Court. The petitioner has remedy available underSection 34 of the Arbitration Act by impugning the impugned orderpassed by the Arbitral Tribunal under Section 16 of the Arbitration Actalong with final award if the petitioner is aggrieved by such finalaward by filing a petition under Section 34 of the Arbitration Act. on 22 04 2021 on 23 04 bdp13wpl 9105.21.doc24.The petitioner has been delaying the arbitral proceedings filed bythe respondent on one or the other ground. The petitioner has nowfiled a statement of defence and has also filed a counter claim beforethe Arbitral Tribunal for damages under the said MOU withoutprejudice to the contentions raised in the application filed underSection 16 of the Arbitration Act. The pleadings are now alreadycompleted in the arbitral proceedings before the Arbitral Tribunal. TheTrial is likely to start any moment.25.Dr. Tulzapurkar learned senior counsel for the petitioner in hisrejoinder argument clarified that it was not the case of the petitionerthat all the cases of specific performance are actions in rem. Since theCompetent Authority has already declared the petitioner as the ownerand a title is conferred upon the petitioner by the said order passedunder Section 11 of the MOFA the proceedings filed by the respondentbefore the Arbitral Tribunal are an action in rem and thus issue ofjurisdiction raised by the petitioner was rightly raised and ought tohave been decided in favour of the petitioner. The respondent haschallenged the said order of Deemed Conveyance directly or indirectlyin the statement of claim.26.Mr. Sanjay Jain learned counsel for the respondent placedreliance on the order passed by the Supreme Court on 5th March 2021in Civil Appeal No. 1098 10921 in Case of NavayugaEngineering Company v s. Bangalore Metro Rail CorporationLimited and the order dated 18th September 2020 in Special Leave toAppealNo. 84820 in case of Punjab State PowerCorporation Limited v s. Emta Coal Limited and Anr. and wouldsubmit that the case of the petitioner would not fall under the patent on 22 04 2021 on 23 04 bdp14wpl 9105.21.doclack of inherent jurisdiction of the Arbitral Tribunal. He submits thatthe Hon’ble Supreme Court in the said two orders have clearly heldthat the Court under Article 227 of the Constitution of India in a writpetition arising out an order passed by the Arbitral Tribunal canexercise powers only if the order passed is so perverse that the onlypossible conclusion is that there is a patent lack in inherent jurisdictionwhich requires no argument whatsoever. Perversity in the order mustbe such that must stare one in the face. The writ jurisdiction can beexercised only in case of exceptional rarity or cases which are stated tobe patently lacking in inherent jurisdiction and not otherwise.27.It is submitted that the petitioner has not made out any such casewithin such exception made by the Hon’ble Supreme Court even incase of Deep Industries Limitedin case of NavayugaEngineering Companyand in case of Punjab State PowerCorporation Limitedhas held that the Arbitral Tribunals are private forum chosenvoluntarily to adjudicate their dispute in place of Courts and Tribunalswhich are public fora constituted under the Laws of the Country.However Civil or Commercial dispute whether contractual or non contractual which can be decided by a Court are in principle capableof being adjudicated and resolved by Arbitral Tribunal unless thejurisdiction of the Arbitral Tribunals is excluded either expressly or bynecessary implication. Adjudication of certain categories ofproceedings are reserved by the legislature exclusively for publicforum as a matter of public policy. Certain other categories of cases either not expressly reserved for adjudication by public forummay by necessary implication have been executed fromthe purview of private forum.34.The Hon’ble Supreme Court in the said judgment also held that aright in rem is a right exercisable against the world at large ascontrasted from a right in personam which is an interest protectedsolely against specific individuals. Action in personam referred toactions determining the rights and interest of the parties themselves inthe subject matter of the case whereas actions in rem referred toactions determining the title to property and the rights of the parties not merely among themselves but also against persons of any timeclaiming an interest in that property. In paragraph 38 of the saidjudgment the Hon’ble Supreme Court clarified that disputes relating tosubordinate rights in personam arising from rights in rem always havebeen considered to be arbitrable.35.In the MOU entered into between the parties the respondentclaims various rights of development on the said property after on 22 04 2021 on 23 04 bdp18wpl 9105.21.doccompletion of the construction of the building for the petitioner. Allthese rights claimed by the respondent in the statement of claim aresubordinate rights in personam arising from rights claimed by thepetitioner in the said property. These principles laid down in thejudgment of the Hon’ble Supreme Court in case of Booz Allen andHamilton Inc.squarely apply to the facts of this case. Theclaims made by the respondent in the statement of claim are relating tosubordinate rights in personam under the said MOU and thus arearbitrable. No case is made out by the petitioner in this case to showthat the reliefs sought by the respondent in the statement of claim couldbe exclusively tried only by a Civil Court and not by the ArbitralTribunal and are barred from being tried by the Arbitral Tribunal byany express or necessary implication.36.Supreme Court in case of Vidya Drolia and Ors.has heldthat as per the mandate of sub Section 5 of Section 16 of theArbitration Act when objection to the jurisdiction under sub Sections 2and 3 are rejected the Arbitral Tribunal can continue with theproceedings and make the arbitration award. A party aggrieved is atliberty to file application for setting aside such arbitral award underSection 34 of the Arbitration Act after completion of proceedings. It isheld that the Arbitration and Conciliation Act 1996 does not in specificterms exclude any category of dispute Civil or Commercial fromArbitrability.37.It is held that under Section 16 of the Arbitration Act theArbitral Tribunal is empowered to rule on its own jurisdiction including ruling on any objections with respect to the existing orvalidity of the Arbitration Agreement. It is held that the arbitrators on 22 04 2021 on 23 04 bdp19wpl 9105.21.doclike Courts are legally bound to resolve the disputes in accordancewith public policy of the law.38.Hon’ble Supreme Court in case of Deep Industries Limited(supra) has dealt with an appeal arising out of the order passed by theHigh Court in a Writ Petition under Article 227 of the Constitution ofIndia. The appellant before the Hon’ble Supreme Court had filed aclaim petition before the learned Arbitrator challenging the terminationof the contract show cause notice and also claiming damages. Duringthe pendency of the said arbitral proceedings the appellant wasblacklisted by the ONGC for a period of two years. The appellant hadfiled an application under Section 17 before the learned Arbitrator. Theappellant had also filed an application to amend the arbitration claim.The said application for amendment was allowed by the learnedArbitrator.39.The respondent in the meanwhile filed an application underSection 16 before the learned Arbitrator on the ground that thearbitration notice was confined only to termination of the agreementand blacklisting outside the arbitrator’s ken. The said applicationunder Section 16 was dismissed by the learned Arbitrator holding thatthe notice was not merely confined to termination of contract but wasalso in respect of two years ban blacklisting that was sought to beimposed at that time. The learned Arbitrator by a separate orderdisposed of the application filed by the appellant under Section 17thereby staying the operation of the order dated 15th February 2018thereby black listing the appellant by the ONGC. An appeal was filedbefore the City Civil Court Ahmedabad under Section 37 of theArbitration Act. The City Civil Court passed an order in the said on 22 04 2021 on 23 04 bdp20wpl 9105.21.docappeal under Section 37 in the Arbitration Act dismissing the saidappeal.40.The aggrieved party filed an application under Article 227 of theConstitution of India before the High Court of Gujarat impugning theorder passed by the City Civil Court Ahmedabad. The High Court ofGujarat referred to the two preliminary contentions raised on behalf ofthe petitioner that the petition under Article 227 of the Constitution ofIndia should be dismissed at a threshold as it did not raise anyjurisdictional issue. The High Court however without answering thesaid question then went on to state that the ban order had in fact beenpassed under a General Contract Manual mainly and not under theprovisions of the agreement and as a result of which serious disputesarose as to the jurisdiction of the arbitrator to deal with the same.41.The Gujarat High Court also held that on reading of a notice forarbitration that the notice did not raise the issue of the ban for twoyears and was confined only to illegal termination. The Gujarat HighCourt held that no stay could be possibly granted under Section 17 ofthe ban order as an injunction cannot be granted in the cases where theparty can be compensated later in damages. The Gujarat High Courtaccordingly allowed the said writ petition and was pleased to set asidethe order passed by the City Civil Court Ahmedabad.42.The said order passed by the Gujarat High Court was challengedbefore the Hon’ble Supreme Court in the said judgment in case ofDeep Industries Limitedholding that under Section 34 theaggrieved party has an avenue for ventilating its grievances against theaward including any in between orders that might have been passed bythe Arbitral Tribunal acting under Section 16 of the Act. The partyaggrieved by any order of the Arbitral Tribunal unless has a right ofappeal under Section 37 of the Act has to wait until the award ispassed by the Arbitral Tribunal. This appears to be scheme of the Act.The Hon’ble Supreme Court in the said judgment in case of SBP andCompanyalso held that the object of minimising judicialintervention while the matter is in process of being arbitrated upon will certainly be defeated if the High Court could be approached underArticle 227 or under Article 226 of the Constitution of India againstevery order made by the Arbitral Tribunal. Therefore it is necessary toindicate that once the arbitration has commenced in the Arbitral on 22 04 2021 on 23 04 bdp22wpl 9105.21.docTribunal parties have to wait until the award is pronounced unless ofcourse a right of appeal is available to them under Section 37 of theAct even at a particular stage.44.In paragraph 20 of the said judgment the Hon’ble SupremeCourt however held that the statement of law in the said judgment incase of SBP and Companydoes not directly apply on the factsof the case in hand before the Hon’ble Supreme Court in the saidjudgment. The Hon’ble Supreme Court also distinguished the judgmentof Punjab Agro Industries Corporation Limited v s. Kewal SinghDhillon 10 SCC 128 on the ground that in the case in hand incase of Deep Industries Limitedthe jurisdiction had beenexercised by the High Court only after the first appeal provided underSection 37 of the Arbitration Act was dismissed.45.In paragraph 22 of the said judgment the Hon’ble SupremeCourt held that the drill of Section 16 of the Arbitration Act is thatwhere a Section 16 application is dismissed no appeal is provided andthe challenge under Section 16 application being dismissed must awaitthe passing of a final award at which stage it may be raised underSection 34. It is held that for that reason alone the judgment of theGujarat High Court under appeal needs to be set aside. It is held thateven otherwise entering into the general thicket of the disputesbetween the parties does not behove a Court exercising jurisdictionunder Article 227 where only jurisdictional errors can be corrected. Itis held that the Arbitral Tribunal was well within its jurisdiction inreferring to the contract and the ban order and than applying the lawand finally issuing the stay order. The High Court judgment thus couldnot be sustained and came to be set aside. on 22 04 2021 on 23 04 bdp23wpl 9105.21.doc46.In paragraph 23 of the said judgment the Hon’ble SupremeCourt held that what becomes clear is that had the High Court itselfdisposed of the first appeal in that case no petition under Article 227could possibly lie and all that could perhaps have been done was to filean LPA before a Division Bench of the same High Court. The Hon’bleSupreme Court allowed the said Civil Appeal by setting aside the orderpassed by the High Court exercising writ jurisdiction under Article 227of the Constitution of India. In our view the said judgment of theHon’ble Supreme Court is clearly distinguishable in the facts of thiscase. In this case petitioner has challenged the order passed by theArbitral Tribunal rejecting an application under Section 16 of the Act.47.Be that as it may in paragraph 22 of the said judgment theHon’ble Supreme Court has held that the drill of Section 16 of the Actis that where a Section 16 application is dismissed no appeal isprovided and the challenge to the Section 16 application beingdismissed must await the passing of the final award at which stage itmay be raised under Section 34. In our view the said judgment of theHon’ble Supreme Court holding that the party whose applicationunder Section 16 of the Arbitration Act is rejected must await thepassing of a final award at which stage it may be raised under Section34 would assist the case of the respondent and not the petitioner.48.The Hon’ble Supreme Court in the order dated 5th March 2021in case of Navayuga Engineering Companyhad considered thefacts where arbitral award was already made in favour of the appellantallowing some of the claims. The Arbitration petitions filed underSection 34 of the opponent was pending before the City Civil andSession’s Judge Bengaluru. The execution of the said award was on 22 04 2021 on 23 04 bdp24wpl 9105.21.docstayed on certain conditions. Both the parties filed writ petition againstthe said order staying execution of award on certain conditions. Thewrit petition filed by the appellant was dismissed whereas the writpetition filed by the respondent was allowed in which the deposit of50% of the amount was ordered. The said order was impugned beforethe Hon’ble Supreme Court in that matter.49.The Hon’ble Supreme Court in paragraph 4 of the said orderobserved that despite the Supreme Court repeatedly referring to Section5 of the Arbitration Act in particular and the Arbitration Act in generaland despite the Supreme Court having laid down in case of DeepIndustries Limitedthat the High Court under Articles 226 and227 should be extremely circumspect in interference with orders passedunder Arbitration Act such interfering being only in cases ofexceptional rarity or cases which are stated to be patently lacking ininherent jurisdiction the Supreme Court found that High Courts areinterfering with deposit orders that have been made. That was not acase of exceptional rarity or any patent lack in inherent jurisdiction.The Hon’ble Supreme Court accordingly set aside the order passed bythe High Court exercising writ jurisdiction in such a situation.50.The Hon’ble Supreme Court in an order dated 18th September 2020 in case of Punjab State Power Corporation Limitedthe Hon’ble on 22 04 2021 on 23 04 bdp25wpl 9105.21.docSupreme Court held that a foray to the Writ Court from a Section 16application being dismissed by the arbitrator can only be if the orderpassed was so perverse that the only possible conclusion is that there isa patent lack of inherent jurisdiction requires no arguments whatsoeverit must be the perversity of the order that must stare one in the face.The Hon’ble Supreme Court observed that unfortunately parties areusing this expression in the judgment in case of Deep IndustriesLimitedto go to the Writ Court under Article 227 in matterwhich did not suffer from a patent lack of inherent jurisdiction. This isone of them.51.It is held by the Hon’ble Supreme Court that instead ofdismissing the writ petition on the ground stated the High Court couldhave done well to have referred to the judgment in case of DeepIndustries Limitedand to dismiss the petition under Article 227on the ground that there was no such perversity in the order which needto be a patent lack of inherent jurisdiction. High Court ought to havediscouraged similar litigation by imposing heavy cost. The High Courtdid not choose to do either of these two things. The Hon’ble SupremeCourt dismissed the said Spl. Leave Petition with costs of Rs.50 000 to be paid to the Supreme Court Legal Service Committee.52.In this back drop we shall decide whether the petitioner hasmade out a case of patent lack of inherent jurisdiction which requiresno arguments whatsoever and demonstrates the perversity in the orderwhich stare on in the face and whether this case would fall in cases ofexceptional rarity or not. The Arbitral Tribunal in this case hasrecorded a finding that the dispute between the parties arising out ofMOU dated 6th June 2008 is an action in personam alone and not an on 22 04 2021 on 23 04 bdp26wpl 9105.21.docaction in rem. The Arbitral Tribunal has also considered large numberof judgments of this Court in paragraph 15 of the impugned orderholding that mere issuance of certificate does not bar the aggrievedparty to adopt such legal appropriate proceedings to establish its claimunder the contract.53.This Court in case of Zainul Abedin Yusufali Massawala andOrs. v s. Competent Authority and in case of Shree ChitanmaniBuilders v s. State of Maharashtra in case of Tushar JivramChauhan v s. State of Maharashtra 4 Mh.L.J. and in case ofMazda Construction Company v s. Sultanabad Darshan CHS Ltd. 2012 SCC OnLine Bom 1266 has held that jurisdiction of the CivilCourt is not barred despite a document of Deemed Conveyance isplaced on record and relied upon before the Civil Court dealing withthe right title and interest of the petitioner in the larger property byindependently applying its mind and on a total appraisal of the oral anddocumentary evidence before it.54.In our view the Arbitral Tribunal has rightly held that parties areneither stopped nor there is bar under the provisions of law to establishits right title or interest independent of such Deemed ConveyanceCertificate. Such certificate will have no bar in the matter where theright title and interest of any party is adjudicated before a forum whichis conferred with such jurisdiction to adjudicate and deal with afterperusing the oral and documentary evidence and decide the disputebetween the parties. Such adjudication is clearly independent of theAct performed under Section 11 of the MOFA. The aforesaidjudgments relied upon by the Arbitral Tribunal on this issue applies tothe facts of this case. on 22 04 2021 on 23 04 bdp27wpl 9105.21.doc55.In our view the proceedings under Section 11 of the MOFA arefiled in view of the default committed by the promoter to execute aDeed of Conveyance in favour of the society by complying with itsapplication under the provisions of the MOFA by executing a Deed ofConveyance. The Competent Authority is thus empowered to pass anorder of Deemed Conveyance ex parte. Such order passed by theCompetent Authority does not create title in respect of such propertyconclusively in favour of the society. Such an order of DeemedConveyance is subject to the final adjudication of title in theappropriate Civil proceedings either before the Civil Court or byArbitral Tribunal in case of their being an Arbitration Agreementbetween the parties. There is no such provision under MOFA that theorder passed by the Competent Authority under Section 11 of theMOFA is final in all respect including on the issue of title in theproperty and bars the Civil Court or the Arbitral Tribunal from decidingthe issue of title independently.56.In our view there was thus no question of any inherent lack ofjurisdiction of the Arbitral Tribunal in considering a claim for specificperformance of the MOU and various monetary claims including claimfor damages which was for enforcement of subordinate rights in thenature of an action in personam. The Arbitral Tribunal has jurisdictionthus to entertain try and adjudicate upon such claims arising out of notin action in rem. In our view such claims as made by the respondentcould be adjudicated upon only by the Arbitral Tribunal in view ofthere being an Arbitration Agreement and not barred expressly or bynecessary implication. There was thus no question of inherent lack ofjurisdiction in the Arbitral Tribunal to decide those claims. on 22 04 2021 on 23 04 bdp28wpl 9105.21.doc57.The petitioner has also not made out a case under an exceptioncarved out by the Hon’ble Supreme Court in case of NavayugaEngineering Companyfor interfering with the orders passedunder the Arbitration Act by a Writ Court under Articles 226 and 227i.e. interference being only in cases of exceptional rarity. In our view this was a clear case of exclusive jurisdiction of the Arbitral Tribunal todecide such claims as made by the respondent and thus the impugnedorder passed by the Arbitral Tribunal cannot be impugned in a writpetition under Articles 226 and 227 of the Constitution of India.58.The Hon’ble Supreme Court in the said order in case of PunjabState Power Corporation Limitedhas noticed the misuse of thesaid expression ‘patent lack of inherent jurisdiction’ expressed by theHon’ble Supreme Court in case of Deep Industries Limitedbythe parties invoking writ jurisdiction under Article 227 in the matterswhere there is no lack of inherent jurisdiction and has stronglyobserved that though there was no patent lack of inherent jurisdiction the High Court who ought to have dismissed the writ petition on suchground the High Court dismissed the writ petition directly againstorder under Section 16 without following the drill of Section 16 of theArbitration Act. The Hon’ble Supreme Court has set aside thejudgment of the Punjab and Harayana High Court with cost quantifiedat Rs.50 000 . In our view the writ petition filed by the petitionerunder Articles 226 and 227 of the Constitution of India in the facts ofthis case is a gross abuse of process of law and has been filed with aview to delay the outcome of the arbitral proceedings which have to bedisposed of expeditiously. The writ petition thus deserves to bedismissed with exemplary cost. on 22 04 2021 on 23 04 bdp29wpl 9105.21.doc59.We accordingly pass the following order :(R.D. DHANUKA J.)

Verifying information or objections raised by the borrowers is the duty of Credit Agency: Kerala High Court

Updating CIBIL score is a borrower’s statutory right and therefore, credit rating agencies are legally bound to consider objections against the rating given to a debtor. The Kerala High Court presided J. N. Nagaresh laid down this ratio in the case of Sujith Prasad Vs. Reserve Bank of India & Ors., [W.P. (C) No. 22108 of 2020]. The brief facts of the case are that a lawyer filed a writ petition in the court aggrieved with the adverse CIBIL reports given by the ICICI Bank Ltd. The Petitioner contended that the CIBIL reports were not updated that the loan amounts taken by him were cleared off. The Credit information company, Trans Union CIBIL Ltd., submitted that information given by banks. Since it acts only as a mere repository of information, it is not bound to ascertain the correctness of the information given to it by the banks. The Court in this case noted that Credit agencies are formed and regulated under the Credit Information Companies (Regulation) Act, 2005. Under the Act, Section 21(3) mandates that credit information company must update the information by making appropriate addition or deletion on a request made by the borrower. Further, observing that the credit ratings have civil consequences, that impacts the financial credibility of a borrower, hence the company must consider objection. Hence, the Court was of the opinion that, “In view of the fact that credit score given by the credit information companies like the 3rd respondent can have serious adverse civil consequences on individuals, the 3rd respondent is bound to ascertain the true state of affairs with its member-Banks/financial institutions, whenever any anomaly is pointed out by individuals. Updation of credit information is a statutory right of a borrower or client of a Credit Institution, in view of Section 21(3) of the Act, 2005.” The Court in this case stated that it was the duty of the Credit agency to verify information or objections raised by the borrowers and hence was of the opinion that “A credit score is a numerical expression based on an analysis of the credit history of an individual. A credit score in effect represents the creditworthiness of an individual. Credit scores are used by Credit Institutions like banks and other financial entities to evaluate the potential risk passed by lending money to consumers and to mitigate loans due to bad debt. By the very nature of credit score, it has positive or negative impact on the financial credibility of an individual.” The respondent i.e. ICICI Bank was directed to update the CIBIL score and update the agency within a period of two weeks.

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR.JUSTICE N.NAGARESH WEDNESDAY THE 06TH DAY OF JANUARY 2021 16TH POUSHA 1942 WP(C).No.22108 OF 2020(K SUJITH PRASAD AGED 53 YEARS S O SIVARAMA PILLAI SARAS FLAT NO.208 KSHB CHINNAKADA P.O. KOLLAM TALUK KOLLAM DISTRICT 691 001 THE RESERVE BANK OF INDIA BRANCH OFFICE P.B NO 6507 NANDAVANAM PALAYAM THIRUVANANTHAPURAM KERALA 695 033 THE BRANCH MANAGER ICICI BANK LTD VAIDYA COMMERCIAL ARCADE RESIDENCY ROAD CHINNAKADA P.O. KOLLAM 691 001 THE DIRECTOR TRANS UNION CIBIL LIMITED ONE INDIA BULLS CENTER TOWER 2A 19TH FLOOR SENAPATI BAPAT MARG ELPHINSTONE ROADS MUMBAI 400 013 R3 BY ADV. SRI.C.AJITH KUMAR SRI. MILLU DANDAPANI FOR R1HAVING BEEN FINALLY HEARD ON 06.01.2021 THE COURT ON THE SAME DAY DELIVERED THE WP(C) No.22108 2020 2 JUDGMENT ~ ~ ~ ~ ~ ~ ~ Dated this the 6th day of January 2021 The petitioner who is a practising Lawyer seeks to direct the 2nd respondent Branch Manager ICICI Bank Limited to recall the petitioner s entries in the CIBIL report of the petitioner and to direct the 2nd respondent to delete the The petitioner states that he had availed a personal loan of ₹3 lakhs from the 2nd respondent. The loan was sanctioned on 16.12.2006. The petitioner repaid the entire loan. The 2nd respondent however issued a notice on 12.08.2016 demanding the petitioner to pay ₹42 895 . The petitioner remitted the said amount as demanded by the 2nd WP(C) No.22108 2020 3 respondent on 30.08.2016 The 2nd respondent sanctioned to the petitioner an amount of ₹37 337 on 16.07.2007. The petitioner repaid the said amount also. Yet the 2nd respondent demanded an additional amount of ₹11 000 as per Ext.P3. The petitioner remitted the said amount also as evidenced by Ext.P4 The petitioner wanted to avail a vehicle loan from another bank. The Manager was satisfied with the eligibility of the petitioner for availing loan. The Manager however did not sanction the loan pointing out that there are some adverse entries in the CIBIL report in respect of the petitioner The petitioner would state that the repayment of the loans availed by the petitioner from the 2nd respondent may not have been made with the desired promptitude. However the petitioner had remitted all the amounts demanded by the 2nd respondent which were alleged to be due in the loan accounts of the petitioner. However in spite of remittance of all the dues the 2nd respondent made adverse reports on the basis of which the 3rd respondent entered adverse entries in WP(C) No.22108 2020 4 their records. The action of the 2nd respondent in not communicating true state of affairs in respect of the petitioner s loan accounts has caused untold hardship to the petitioner. The 2nd respondent is therefore liable to be directed to delete adverse entries in the CIBIL report of the petitioner contended the learned counsel for the petitioner The 2nd respondent Bank did not enter appearance The 3rd respondent Company however filed a statement The 3rd respondent stated that it is a Credit Information Company certified by the Reserve Bank of India. When information data is submitted by a member Bank or financial institution the 3rd respondent enters the same in their records The 3rd respondent is only a repository of information. The 3rd respondent is not bound to ascertain the correctness or otherwise of the information submitted to them by financial 7. On receipt of notice of the writ petition the 3rd respondent sent Exts.R3(a) and R3(b) mails to the 2nd respondent requiring to confirm whether the information WP(C) No.22108 2020 5 provided by them in respect of the petitioner is correct or requires any correction. The 2nd respondent so far has not responded to the mails sent by the 3rd respondent. Unless the 2nd respondent reports any change in records maintained by them the 3rd respondent will not be in a position to make any I have heard the learned counsel for the petitioner and learned Standing Counsel appearing for the 1st respondent and the learned Standing Counsel appearing for the 3rd respondent It is the credit report of the 3rd respondent by which the petitioner is aggrieved. Financial Institutions try to mitigate the risk of lending to borrowers by making a credit analysis on individuals and institutions applying for new credit facilities or loan. The analysis is normally based on a review of Capacity Capital Conditions Character and Collaterals called “the Five Cs” of credit. Financial Institutions in India rely on credit scores given by Credit Information Companies formed under the Credit Information CompaniesAct 2005 WP(C) No.22108 2020 6 10. The 3rd respondent is a Credit Information Company functioning in accordance with the provisions of the Credit Information Companies Act 2005. The 3rd respondent gives credit scores in respect of the customers of Credit Institutions. A credit score is a numerical expression based on an analysis of the credit history of an individual. A credit score in effect represents the creditworthiness of an individual. Credit scores are used by Credit Institutions like banks and other financial entities to evaluate the potential risk passed by lending money to consumers and to mitigate loans due to bad debt. By the very nature of credit score it has positive or negative impact on the financial credibility of an It is taking into account the said fact that the Parliament has enacted Credit Information Companies Regulation) Act 2005 12. Section 21(3) of the Act 2005 reads as follows: “21. Alteration of credit information files and credit reports—(1) Any person who applies for grant or sanction of credit facility from any credit institution WP(C) No.22108 2020 7 may request to such institution to furnish him a copy of the credit information obtained by such institution from the credit information company. 2) Every credit institution shall on receipt of request under sub sectionfurnish to the person referred to in that sub section a copy of the credit information subject to payment of such charges as may be specified by regulations by the Reserve Bank in this regard. 3) If a credit information company or specified user or credit institution in possession or control of the credit information has not updated the information maintained by it a borrower or client may request all or any of them to update the information whether by making an appropriate correction or addition or otherwise and on such request the credit information company or the specified user or the credit institution as the case may be shall take appropriate steps to update the credit information within thirty days after being requested to do so: Provided that the credit information company and the specified user shall make the correction deletion or addition in the credit information only after such correction deletion or addition has been certified as correct by the concerned credit institution: Provided further that no such correction deletion or addition shall be made in the credit information if any dispute relating to such correction deletion or addition is pending before any arbitrator or tribunal or court and in cases where such dispute is pending the entries in the books of the concerned credit institution shall be taken into account for the purpose of credit information.” In view of the first proviso to Section 21(3) a Credit Information Company can make a correction deletion or WP(C) No.22108 2020 8 addition of the credit information after such correction deletion or addition has been certified as credit by the concerned credit institution. The 2nd proviso would indicate that the right over a credit information is solely that of the concerned bank or financial institution In view of the fact that credit score given by the credit information companies like the 3rd respondent can have serious adverse civil consequences on individuals the 3rd respondent is bound to ascertain the true state of affairs with its member Banks financial institutions whenever any anomaly is pointed out by individuals. Updation of credit information is a statutory right of a borrower or client of a Credit Institution in view of Section 21(3) of the Act 2005 14. The statement filed by the 3rd respondent would show that as soon as the 3rd respondent received information about the grievance of the petitioner the 3rd respondent promptly addressed the 2nd respondent to confirm on the complete account details of the accounts of the petitioner The 3rd respondent required the 2nd respondent Bank that in WP(C) No.22108 2020 9 case of any incorrect information the correct information shall be provided to the 3rd respondent. However the 2nd respondent has not responded to Exts.R3(a) and R3(b communications made by the 3rd respondent 15. Since the failure of the 2nd respondent to act on Exts.R3(a) and R3(b) has grave consequences on the financial credibility and creditworthiness of the petitioner and since updation of credit information is a statutory right conferred on the petitioner under Section 21(3) of the Credit Information Companies Act 2005 this Court finds that relief should be granted to the petitioner in this writ In such circumstances the 2nd respondent directed to respond to Ext.R3(a) mail dated 01.11.2020 and Ext.R3(b) mail dated 08.12.2020 of the 3rd respondent seeking confirmation on the complete account details in respect of the petitioner within a period of two weeks. The 3rd respondent on receipt of such information should make changes in the credit report in respect of the petitioner if found warranted on WP(C) No.22108 2020 10 the basis of information provided by the 2nd respondent without further delay Writ petition is disposed of as above N. NAGARESH JUDGE WP(C) No.22108 2020 11 PETITIONER S EXHIBITS THE TRUE COPY OF THE DEMAND NOTICE ISSUED BY THE 2ND RESPONDENT DATED 12.8.2016 VIDE REF NO PL 1608 0604932 THE TRUE COPY OF THE REMITTANCE SLIP DATED 30.8.2016 FOR AN AMOUNT OF RS.42 895 THE TRUE COPY OF THE DEMAND NOTICE ISSUED BY THE 2ND RESPONDENT DATED 11.8.2016 VIDES REF.NO.PL 1608 THE TRUE COPY OF THE REMITTANCE SLIP DATED 30.8.2016 FOR AN AMOUNT OF RS.11 000 TRUE COPY OF THE PASS BOOK ISSUED BY THE ORIENTAL BACK OF COMMERCE TO THE PETITIONER VIDES ACCOUNT NO RESPONDENTS EXHIBITS TRUE COPY OT THE E MAIL DATED 02 11 2020 SENT BY 3RD RESPONDENT TO THE OFFICIALS CONCERNED OF THE 2ND TRUE COPY OF THE E MAIL DATED 08 12 2020 SENT BY 3RD RESPONDENT TO THE OFFICIALS CONCERNED OF THE 2ND

Callous attitude of wife amounts to cruelty and cannot be regarded as trivial matters: Bombay High Court

The principal question which requires consideration is whether from the evidence on record, can it be inferred that the spouse has committed an act of cruelty and whether the marriage is required to be dissolved on the aforesaid ground. This remarkable judgment was passed by the Bombay High Court in the matter of SUNESH SUDHAKAR RELEV SEEMA SUNESH RELE [FAMILY COURT APPEAL NO. 106 OF 2012] by Honourable Justice R. D. Dhanuka and Justice V. G. Bisht. The husband has filed this Family Court Appeal against the Judgment and Order passed by the Family Court whereby a Petition seeking divorce on the ground of cruelty under Section 27(d) of the Special Marriage Act, 1954 had been dismissed. After marriage, the wife informed him that she did not marry willingly instead was forced by her father and that she now wants to divorce. Later the wife started cruel and rude behaviour with the husband and his parents and abuse the elderly parents for petty issues and threaten to beat them on several occasions. The husband continued to tolerate this behavior but after two months of marriage, she left the matrimonial home only to return after ten days with an intention of divorce and refused any physical relations and ridiculed his physical appearance. Later, she took all her ornaments and left and even sent a legal notice and claimed pregnancy even though she was not pregnant and had no signs of any pregnancy when she left the matrimonial home. Thus, he instituted a Petition for divorce on the ground of cruelty, the wife denied these allegations and instead contended that they were demanding dowry and after it was not paid, they are trying to sully her character and also alleged that due to harassment and mental torture by the appellant she suffered a miscarriage. After recording the evidence, the learned Judge came to the conclusion that the appellant has failed to prove that the wife treated him with cruelty and accordingly dismissed the Petition of divorce. Later in front of the HC, it was claimed that the wife demanded a sum of Rs.10 lakhs for giving divorce, and since the court failed to appreciate the evidence the judgment should be set aside, The HC observed that “Instances firmly established on record were neither controverted nor assailed nor even remotely touched in the cross-examination. Simply, the version of husband in consonance and confluence with pleadings have gone unchallenged in the cross-examination without being tested with any sincerity and vigorously by the wife.” The Court also stated that “Relation between them was not marred by ordinary wear and tear of matrimonial life. Wife’s bursting out at regular intervals as to tying of nuptial knot against her wish, having an affair with other boy and her leading adulterous and a life of sexual debauchery, by all means, can be termed as marital misconduct constituting mental cruelty to the husband, to say the least.” The Court acknowledged that “perpetual nagging was certainly and completely intolerable” and lead to a situation wherein the husband’s life became miserable because of rude and cruel behavior of the wife as it endangered his mental peace because of infliction of abusive words. The Bench stated that “The circumstances could not be considered as conducive to congenial married life. The callous attitude of respondent-wife on this behalf certainly amounts to cruelty. The incident so noted cannot be by any stretch of imagination be regarded as trivial matters in the day-to-day married life and rather were very serious.” The Court in regards to abortion and miscarriage stated that the finding of the trial Judge was that the pregnancy was either aborted or terminated with the knowledge or consent of the husband but the husband was not informed about the pregnancy let alone the vent of miscarriage or abortion. The Court regarded that the Trial Judge failed to appreciate the intact testimony of the husband and stated that, “It is a case of virtual no cross-examination of various instances as deposed to by appellant-husband in his substantive evidence. In a sense, the learned trial Judge recorded perverse findings which are not consistent with the evidence on record. Therefore, the findings so arrived at by learned trial Judge is not sustainable.”

on 07 04 2021 on 14 04 18 FCA 106 2012.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYCIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 106 OF 2012 Sunesh Sudhakar ReleAge: 44 years Occu: Nil R o. 3 Sarla Sadan Haldankar Bridge Mumbai 400007. … Appellant District: Thane Pin Code : 401 303. … Respondent of the Special Marriage Act 1954has been dismissed. 2The appellant husband entered into the matrimonial alliancewith respondent wife on 10th July 2008 by registering the marriagewith the Registrar of Marriages Old Custom House ShahidBhagatsingh Marg Fort Mumbai No.1. Parties have no issue fromthe wedlock.3It is the case of the appellant that from the day of theirmarriage the respondent was not very happy and was not talkingwith him and his family nicely. On the next day of the marriageitself the respondent informed the appellant and his parents thather father had forced her into this marriage and had not allowed toget married to the person she wanted to and she had no intentionto continue with this marriage and would do everything to break Rekha Patil 2 23 on 07 04 2021 on 14 04 18 FCA 106 2012.odtup this marriage as she wanted a divorce. 4The appellant husband further alleged that after theirmarriage the respondent started cruel and rude behaviour withhim and his parents who are senior citizens. She used to abuse hisparents for petty issues and also used to give bad words to themand threatened to beat them on several occasions. 5Appellant husband then contends that the respondentinformed him of having an affair with some other boy who wasvery well known to her father but her father was against the saidrelationship he did not inform the same to the appellant and hisparents and concealed this material information and forced her tomarry him against her wish. This speaks volumes of mental crueltythat the appellant and his parents had been a victim of. She alsoexpressed her intention of being not interested in the said marriageand also said that she would continue to keep sexual relations withthe other men even after her marriage with him with the soleintention of humiliating and spoiling him and his family name inthe society. Rekha Patil 3 23 on 07 04 2021 on 14 04 18 FCA 106 2012.odt6According to appellant husband he was tolerating such cruelbehaviour of the respondent just to save his marital life but aftertwo months of the marriage in the month of September 2008 therespondent picked up a quarrel and started abusing him for noreason. Even she left the matrimonial home only to return after tendays with an intention of divorce. 7The appellant husband further alleged that the respondentused to avoid the physical relations and would tell that she wasgetting sexual satisfaction from other men and did not need to keepany sexual relations with him as he is of short height not havinggood physique and not having real hair and wears a wig. 8Ultimately the respondent left the matrimonial house on 23rdApril 2009 and took all her ornaments along with her. Afterleaving the matrimonial home the respondent even sent a legalnotice and claimed of having been pregnant although she was notpregnant and had no signs of any pregnancy when she left thematrimonial home. Rekha Patil 4 23 on 07 04 2021 on 14 04 18 FCA 106 2012.odt9The appellant husband lastly states that the respondent hadmade his life very miserable and it is very difficult to live togetherand to enjoy marital life. It is against this backdrop the appellantinstituted the Petition for divorce on the ground of cruelty. 10The aforesaid Petition was resisted by the respondent wife byfiling her written statement at Exh. 13. The allegations made inthe Petition were denied by the respondent. It is the case ofrespondent that she never asked divorce from the petitioner andrather it was appellant who repeatedly asked for divorce as hewanted to remarry again with other girl for sake of fun andenjoyment. She denied that she ill treated her in laws and everassaulted them. It is her case that she had never any affairs withanother person before her marriage and as the appellant and hisfather asked from her father dowry by way of moneys and flat andas the same was refused they have thrown mud on her cleancharacter. She also alleged that due to harassment and mentaltorture by the appellant she suffered a miscarriage. 11According to respondent wife she was always ready and stillRekha Patil 5 23 on 07 04 2021 on 14 04 18 FCA 106 2012.odtready to stay with the appellant and lead a peaceful married lifeand there being no merit in the Petition the same is liable to bedismissed with costs. 12The learned trial Judge framed issues at Exh. 15. Afterrecording the evidence the learned Judge came to the conclusionthat the appellant has failed to prove that the respondent treatedhim with cruelty as contemplated under Section 27(d) of the Act.The learned Judge accordingly dismissed the Petition of divorce. 13Mr. Sanglikar learned counsel appearing for the appellant husband submitted that the learned Judge of the Family Court hasgravely erred in dismissing the Petition. He submitted that thelearned Judge failed to appreciate Section 27(d) of the Act andrather after going through the said provisions he ought to havearrived at a conclusion that the appellant was entitled for decreefor divorce. 14Stretching the submissions further the learned counselcontended that the learned Judge of the Family Court ought toRekha Patil 6 23 on 07 04 2021 on 14 04 18 FCA 106 2012.odthave held that the respondent was very cruel in her behaviourtowards the appellant and his parents as she continuouslyharassed abused and assaulted the parents of the appellant. 15Similarly the respondent wife was never interested incontinuation of the marriage with the appellant husband and wasmore interested in snatching and or exploiting moneys from theappellant and this fact is evidently clear from her illegal demand ofRs.10 lakhs for giving consent for decree for divorce. Learnedcounsel also invited our attention to the notice which contains notonly abusive words but also demand of Rs.10 lakhs. Since therewas total failure on the part of the learned Judge of the FamilyCourt in appreciating the evidence and material on record theimpugned judgment and order deserves to be set aside by allowingthe Petition of appellant husband argued learned counsel.Learned counsel also placed reliance in Suman Kapur Vs. SudhirKapur1 in support of his submissions. 16None appeared for the respondent wife though served when1AIR 2009 SC 589Rekha Patil 7 23 on 07 04 2021 on 14 04 18 FCA 106 2012.odtthe matter was called out. 17We have gone through the evidence and the necessarydocuments forming part of the compilation and the record andproceeding during the course of argument.18The word “cruelty” has not been defined in the Act. Crueltycan be of two kinds one is physical cruelty and the other is mentalor by conduct. Casual and trivial matters arising between thespouses do not amount to cruelty. The principle question whichrequires for consideration in the instant case is as to whether fromthe evidence on record can it be inferred that the respondent wifehas committed an act of cruelty towards the appellant husband andwhether the marriage is required to be dissolved on the aforesaidground.19The appellant husband in support of his case examinedhimself and his father Sudhakar Surendranath Rele. On the otherhand the respondent wife examined herself and her father JairamRekha Patil 8 23 on 07 04 2021 on 14 04 18 FCA 106 2012.odtSavleram Mozad.20The appellant husband has filed his affidavit which is at page64 in the compilation. In his affidavit he deposed that on the nextday of the marriage itself the respondent wife informed him andhis parents that her father had forced her into the marriage andhad not allowed her to get married the person she wanted to andshe had no intention to continue with the marriage and that shewould do everything to break up this marriage and she wanted adivorce. He further states that even on their honeymoon she wasabusing him daily and reminding him that her father had forcedher into this marriage. Even after returning back from theirhoneymoon the respondent wife abused him and his parent daily.His parents being senior citizens were subjected to daily abuses onpetty issues and she used to give bad words to them and threatenedto beat them on several occasions. 21His evidence then shows that even the respondent wifeinformed him of having an affair with some other boy who wasRekha Patil 9 23 on 07 04 2021 on 14 04 18 FCA 106 2012.odtvery well known to her father but as her father was against the saidrelationship he did not inform the same to him and his parents.Respondent wife’s office timings were from 9 30 a.m. to 6 00 p.m.but she always used to come home only after 9.00 p.m. daily.When confronted the respondent wife would tell that she is doingall this purposely as she was not at all interested in the saidmarriage. Even she told that she would continue to keep sexualrelationship with other men even after her marriage with the soleintention of humiliating and spoiling his and his family’s name inthe society. She would return from the office after 9 00 p.m. andwould tell him how much she had enjoyed having sex with othermen that day and that she would continue to keep sexualrelationship with other men even after her marriage. She also usedto avoid physical relations with him by saying that he is short inheight does not have good physique have no real hair and wears awig. Because of all these harassment his parents shifted to theirnative place at Pune in November 2008. 22It is his further evidence that the respondent wife alwaysused to abuse him and used to call him dirty words like “ gjkeh ”.Rekha Patil 10 23 on 07 04 2021 on 14 04 18 FCA 106 2012.odtEven she used to call his father as “FksjMk” and corrupt person andeven attempted to assault him. Ultimately she left the matrimonialhome on 23rd April 2009 along with various gold ornaments andalso gave a writing to that effectThat on the very next day of the marriage the respondent wife informed him and his parents Rekha Patil 11 23 on 07 04 2021 on 14 04 18 FCA 106 2012.odtthat her father had forced her into the marriage and she had no intention to continue with the marriage and that she would do everything to break up the marriage as she wanted a divorce ii) That the appellant husband and his parents were always subjected to abuses iii)That she would call him “gjkeh”(knavish) and his father as corrupt and “FksjMk”iv)That she revealed of having an affair with a boy a fact which was known to her father v)That she would continue to keep sexual relations with other men even after her marriage with the sole intention of humiliating him and spoiling him and his family’s name in the society.vi)That after returning home from the office after 9 00 p.m. she would tell appellant husband how much she had enjoyed having sex with other men that day andvii)That she used to avoid to have physical relations and tell him that he is short in height not having good physique and real hair and wears a wig.25It is apposite to note here that all the above instances haveRekha Patil 12 23 on 07 04 2021 on 14 04 18 FCA 106 2012.odtbeen simply denied in the fashion of the denial in the form ofwritten statement and has been replicated by respondent wife inher examination in chief. 26All the aforesaid instances are firmly established on record inas much as quite surprisingly these instances are neithercontroverted or assailed nor even remotely touched in the cross examination. Simply the version of appellant husband inconsonance and confluence with pleadings have gone unchallengedin the cross examination without being tested with any sincerityand vigorousity by the respondent wife. 27We also note from the above instances with deep anguish thatrelation between them was not marred by ordinary wear and tearof matrimonial life. Respondent wife’s bursting out at regularintervals as to tying of nuptial knot against her wish having anaffair with other boy and her leading adulterous and a life of sexualdebauchery by all means can be termed as marital misconductconstituting mental cruelty to the husband to say the least. Rekha Patil 13 23 on 07 04 2021 on 14 04 18 FCA 106 2012.odt28From the evidence of appellant husband it is apparent thatrespondent wife after leaving the matrimonial home used to sendhim SMSs in a very filthy language. The typed copy of the list ofSMSs is annexed at Exh. ‘J’ and reads thus:Date Time Message04.06.20093.08Harami nich tu baap honargydV] uhp cki vkgsl rq vkf.k rq>[kkunku 27.06.20094.27Harami tu baap honaroverand over again over a period of time. This perpetual nagging wascertainly and completely intolerable. There appears to be elementof truth when appellant husband deposed that his life becamemiserable because of rude and cruel behaviour of respondent wifeas it constantly endangered of his mental peace because ofinfliction of abusive words upon him. 30The circumstances could not be considered as conducive tocongenial married life. Callous attitude of respondent wife in thisbehalf certainly amounts to cruelty. The incident so noted can notbe by any stretch of imagination be regarded as trivial matters inthe day to day married life and rather were very serious. 31It is then seen from the evidence of appellant husband thatthe respondent wife finally on her own left the matrimonial homealong with her parents and brother on 23 04 2009. She also tookher ornaments along with her as per the list and handed over thehouse keys as she was leaving his house permanently with theintention to never return. She also gave in writing the above notedRekha Patil 15 23 on 07 04 2021 on 14 04 18 FCA 106 2012.odtfacts. The said writing is at Exh. ‘C’. 32From a bare reading of Exh. ‘C’ it would appear that therespondent wife on her own volition left the matrimonial house on23 04 2009 along with the ornaments as per the details anddescription given therein. This evidence of appellant husband isalso supported by appellant’s father who also testified before theCourt. Appellant’s father namely Sudhakar Surendranath Rele hasclearly stated in his evidence that when the respondent left thehouse she took all her jewellery. He was very much present andtried to convince her but she did not listen. Even she executed awritingwhen she collected all her ornaments. Thisevidence is nowhere assailed in the cross examination by therespondent wife. 33As against above the respondent wife stated in her evidencethat on 04 04 2009 she demanded gold jewellery from theappellant and his parents as she wanted to attend her cousin’smarriage. However they refused to give her ornaments abusedand threatened her to throw out of their house. With the result toRekha Patil 16 23 on 07 04 2021 on 14 04 18 FCA 106 2012.odtsave her life she was compelled to leave the in laws house.34 The evidence of respondent wife is sharply at odds vis a visthe writing at Exh. ‘C’ executed by her. On the contrary Exh. ‘C’shows that she had no complaints about the ornaments. The saidwriting even does not suggest remotely that she was compelled toleave the house after handing over the keys of the house to theappellant. 35 Since this Exh. ‘C’ was shown to the respondent wife in thecross examination it was marked at Exh. 60. It appears from hercross examination that she and her father were forced to put theirrespective signatures on Exh. 60. However she and her fatheradmitted in their respective cross examination that they did not fileany complaint before the police against the appellant husband andhis father about her and her father’s signatures being taken underduress.36In the case of Suman Kapur Vs. Sudhir KapurtheRekha Patil 17 23 on 07 04 2021 on 14 04 18 FCA 106 2012.odtwife was a career oriented lady wanting to pursue her professionalcareer to achieve success and thus was found constantly andcontinuously avoiding staying with husband and preventing him tohave matrimonial relations. Further letters written by her showingthat she was keen to live independent life and wanted that husbandshould not bring her marital status preventing her from pursuingher career had lost interest in marriage and did not believe inIndian Culture. She was further found to have called parents ofhusband as “Ghosts” and had gone to extent of making seriousallegations that husband had married to an American woman. Inview of that findings the Hon’ble Apex Court termed conduct ofwife amounts to mental cruelty.37As far as the case in hand is concerned we have not onlyenumerated various instances vis a vis respondent wife but havealso found her conduct and intention quite questionable. 38The respondent wife has also examined her father in supportof her case. Her father Jairam Savleram Mozad states in hisRekha Patil 18 23 on 07 04 2021 on 14 04 18 FCA 106 2012.odtexamination in chief that because of the harassment given byhusband and the parent in laws and fearing that somethinguntoward may happen to her life her daughter left hermatrimonial house on 23 04 2009. 39There is no satisfactory corroboration to the version of fatherfrom the mouth of his daughter. Very surprisingly the suggestiongiven to the appellant husband in the cross examination wouldshow that the respondent wife was dragged and driven out of theconjugal home which is out rightly denied by him. The suggestionso given is neither borne out of the pleading nor gets support fromthe testimonies of either respondent wife or from her father.Conflicting stands have been taken by the respondent wife and herfather. 40The evidence of appellant husband then shows that when therespondent wife left the conjugal home she was not pregnant andhad no signs of pregnancy. But she alleged and claimed thepregnancy in her notice dated 10 06 2009 sent by her through herRekha Patil 19 23 on 07 04 2021 on 14 04 18 FCA 106 2012.odtlawyer. On the other hand it is the evidence of respondent wifethat due to mental torture and frequent threatenings given by theappellant husband her child was not born and there was amiscarriage. Owing to their strange behaviour she lost her child.This was an irreparable loss to her and therefore according to her the appellant husband should pay her a sum of Rs.10 lakhs towardsthe deterioration of her health. 41We do not find any material on record to substantiate theversion of respondent wife that because of some extraneousreasons like her disturbed mental condition catalysed by thealleged behaviour of husband and parent in laws she sufferedmiscarriage. Surprisingly the learned trial Judge at para 26 of theimpugned judgment observed that the child was aborted. 42There is sea of difference between abortion and amiscarriage. The evidence led by respondent wife is that ofmiscarriage and not abortion. In either case again there is noevidence on record to show that the fact of miscarriage wasRekha Patil 20 23 on 07 04 2021 on 14 04 18 FCA 106 2012.odtimmediately informed to appellant husband. If it was abortion asper the observation of the learned trial Judge then certainlyrespondent wife denied the appellant husband the joy of feeling offatherhood and his parents were also deprived of grand parenthoodof a new arrival. It is also not the finding of the learned trialJudge that the pregnancy was either aborted or terminated withthe knowledge or consent of appellant husband. If on the otherhand it was a case of natural abortion or miscarriage then in thateventuality also neither appellant husband was kept in loop leaveapart the absence of material substantiating the claim ofmiscarriage suffered by respondent wife.43One more disturbing aspect emerging from the record is thatrespondent wife was reluctant to stay with appellant husband andsomehow wanted to achieve monetary gain. Her evidence showsthat because of alleged miscarriage her health was deteriorated andtherefore she claimed Rs.10 lakhs from appellant husband. This isquite inconsistent with her own notice dated 16 10 2009addressed to the counsel of appellant husband. In the saidRekha Patil 21 23 on 07 04 2021 on 14 04 18 FCA 106 2012.odtreply notice she categorically stated that she did not want to givedivorce to appellant husband and if appellant husband wanted adivorce from her then he should shell out an amount of Rs.10lakhs towards the compensation for giving consent for decree fordivorce. This questionable conduct of respondent wife wentunnoticed from the sight of learned trial Judge. 44Even otherwise the crucial admission and contradictionappearing in the evidence of respondent wife and her father aspointed out by us herein above were also not taken in properperspective by learned trial Judge. Above all the learned trialJudge also lost sight of the fact that the testimony of appellant husband remained intact in the cross examination. It is a case ofvirtual no cross examination of various instances as deposed to byappellant husband in his substantive evidence. In a sense thelearned trial Judge recorded perverse findings which are notconsistent with the evidence on record. Therefore the findings soarrived at by learned trial Judge is not sustainable. Rekha Patil 22 23 on 07 04 2021 on 14 04 18 FCA 106 2012.odt45Considering the evidence on record in our view theappellant husband has successfully made out a case for getting adecree for divorce on the ground of cruelty. 46In view of above we pass the following order:ORDER Family Court Appeal No. 1012 stands allowed.i) The impugned judgment and decree dated 2nd April 2012passed by the learned Judge of the Family Court is quashed and set aside.ii)Petition No. A 210 stands decreed with costs.iii) Marriage between appellant husband and respondent wife solemnized on 10th July 2008 stands dissolved by a decree of divorce under Section 27(1)(d) of the Special Marriage Act 1954.iv)Decree be drawn accordingly. (V. G. BISHT J.)( R. D. DHANUKA J.)Rekha Patil 23 23

Arbitration proceeding to be disposed by the dist. Judge on its own merits and cannot be interfered by the parties: High Court of Bombay at Goa

A challenge petition is preferred by the petitioner against the order passed by the Dist.  judge granting the stay to the execution of award. It was submitted by the Petitioner that as per the terms of Sec 36(3) the Principal Dist. Judge had powers to stay the execution of awards provided, such stay is awarded with reasonable reasons in writing. A single-judge bench comprising of Justice M.S. Sonak adjudicating the matter of M/S SCHIFFERAND MENEZES INDIA PRIVATE LIMITED v. M. R. CHENDILNATHAN SOLE PROPRIETOR OF M/S RAJA AGENCY (WRIT PETITION NO.769 OF 2019) dealt with the issue of whether to allow the present writ petition or not.  It was also submitted that the proviso to section 36(3) also provides that while considering an application for grant of stay of an arbitration award for payment of money, the Court must have due regard to the provisions for grant of stay of a money decree under the provisions of Civil Procedure Code. It is also stated that there are no reasons in the impugned order that the stay has been granted subject only to a deposit of 25 percent of the awarded amount. Therefore, it is submitted that the impugned order warrants interference. The Respondents stated that the order may not be interfered with at this stage, particularly because by now the arbitration application under section 34 can itself be disposed of finally. According to the Petitioners, the District Judge has merely quoted the provisions of sections 34 and 36 and thereafter disposed of the application for stay by observing the following: – “The applicant herein is called upon to deposit 25% of the amount awarded by the arbitrator within a period of 30 days failing which the applicant shall not be permitted to contest the objections filed under Section 34 of the Arbitration and Conciliation Act, 1996. I, therefore, pass the following order: Application for Stay is allowed. Execution of Award dated 26.10.2008 in Arbitration Case No.11.2008 is hereby stayed. “Therefore, no reasons for staying in the impugned order. As per the Respondents, the interest of justice will be better met if directions are issued to the Principal District Judge to dispose of Arbitration Petition expeditiously. It is also submitted that this is a better option to follow as otherwise, the matter will have to be remanded to the District Court to reconsider the application for stay and much time will be spent in deciding this application for stay itself. There is bound to be overlapping of arguments. The time spent on deciding the application for stay can as well be spent on disposing of the Arbitration Petition.

8 WP 7619.doc IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.769 OF 2019 M S Jordan Dental Care Products Pvt Ltd now known as M S SCHIFFERAND MENEZES INDIA PRIVATE LIMITED a company incorporated under the Indian Companies Act 1956 And having its registered office at C.M.M Building Rue De Orem Through its Authorised Signatory Shri Ganpat Kapdi son of Ratnakar Kapdi Aged 42 years Indian National Resident of 179 1 Behind St. Ann s Blooming Buds Schools Sirsaim Bardez Goa M. R. CHENDILNATHAN SOLE PROPRIETOR OF M S RAJA AGENCY Plot No.253 Main Road Nehru Nagar Industrial Complex Old Mahabalipuram Road Kottivakkam Chennai Now having office at Vijay Raja Apex Plot No. 22 2nd Street Kamaraj Nagar Chemencherray Chennai 600 119 Mr. S. M. Singbal Advocate for the Petitioner Ms. Mehandi Desai Advocate holding for Mr. Hrudaynath Shirodkar Advocate for the Respondent 12th August 2021 8 WP 7619.doc Coram: M.S. SONAK J Date: 12th August 2021 1. Heard Mr. Singbal for the Petitioner and Ms. Mehandi Desai holding for Mr. Hrudaynath Shirodkar for the Respondent Rule. The rule is made returnable forthwith at the request and with the consent of learned Counsel for the parties The challenge in this petition is to the order dated 28.06.2019 made by the Principal District Judge granting a stay to the execution of award dated 26.10.2008 pending the disposal of Arbitration Petition 4. Mr. Singbal the learned Counsel for the Petitioner submits that though in terms of section 36(3) the Principal District Judge had the powers to stay the execution of the award such powers have to be exercised for reasons to be recorded in writing. He submits that the proviso to section 36(3) also provides that while considering an application for grant of stay of an arbitration award for payment of money the Court must have due regard to the provisions for grant of stay of a money decree under the provisions of Civil Procedure Code. Mr Singbal submits that there are no reasons in the impugned order dated 28.06.2019 and the stay has been granted subject only to a deposit of 25 percent of the awarded amount. He therefore submits that the impugned order warrants interference 12th August 2021 8 WP 7619.doc 5. Ms. Mehendi Dessai defends the impugned order based on the reasons contended therein. She submits that the impugned order was made on 28.06.2019 and therefore may not be interfered with at this stage particularly because by now the arbitration application under section 34 can itself be disposed of finally 6. On perusal of the impugned order there is some justification in the grievance made by Mr. Singbal. The Principal District Judge has merely quoted the provisions of sections 34 and 36 and thereafter disposed of the application for stay by observing the following: “10. The applicant herein is called upon to deposit 25% of the amount awarded by the arbitrator within a period of 30 days failing which the applicant shall not be permitted to contest the objections filed under Section 34 of the Arbitration and Conciliation Act 1996 I therefore pass the following order Application for Stay is allowed Execution of Award dated 26.10.2008 in Arbitration Case No.11.2008 is hereby stayed There are no reasons recorded. Therefore a case has been made out to set aside the impugned order dated 28.06.2019 and remand the matter as proposed by Mr. Singbal. However as submitted by Ms. Dessai at this stage the interest of justice will be better met if directions are issued to the Principal District Judge to dispose of Arbitration Petition No.6 2018 expeditiously. In the peculiar facts of the present case this is a better 12th August 2021 8 WP 7619.doc option to follow as otherwise the matter will have to be remanded to the District Court to reconsider the application for stay and much time will be spent in deciding this application for stay itself. There is bound to be overlapping of arguments. The time spent on deciding the application for stay can as well be spent on disposing of the Arbitration Petition Therefore in the peculiar facts of the present case and even though there is merit in the submission of Mr. Singbal the impugned order is not interfered with. Instead the learned Principal District Judge is directed to dispose of Arbitration and Conciliation Petition No.6 2018 on its own merits and in accord with law as expeditiously as possible and in any case within four months from today. The learned Counsel for the parties assure this Court that they will cooperate with the learned Principal District Judge in disposing of the Arbitration and Conciliation Petition No.6 2018. In particular Ms. Dessai submits that the Respondent herein will not seek any unnecessary adjournment and will cooperate in the disposal of the application under section 34(2) of the Arbitration and Conciliation Act 1996 In case the learned Principal District Judge dismisses the Respondent s application under section 34 of the said Act then the Principal District Judge to consider requiring the Respondent herein to deposit the balance of the awarded amount within a specified period 12th August 2021 8 WP 7619.doc 10. It is made clear that this Court has not examined the rival contentions of the parties on merits and therefore all contentions of all parties on merits are left open to be decided by the learned Principal 11. The parties are to now appear before the learned Principal District Judge taking up Arbitration and Conciliation Petition No.6 2018 on 23.08.2021 and file an authenticated copy of this order 12. The rule in this petition is disposed of in the aforesaid terms. All concerned to act on an authenticated copy of this order M.S. SONAK J. 12th August 2021

Without any enquiry or arriving at a finding, disbelieving the explanation of one party, the High Court is not justified in rejecting the application for condonation of delay : Supreme Court

While dealing with the issue of condonation of delay in respect of matters pending at the appellate stage, the advocates usually inform the litigants who are to be in contact as upheld by the Supreme Court through the learned bench lead by Justice J.K Maheshwari in the case of Dr. Yashwantrao Bhaskarrao Deshmukh v. Raghunath Kisan Saindane [CIVIL APPEAL NO. 6315 OF 2021] (ARISING OUT OF SPECIAL LEAVE PETITION (C) NO. 27874 OF 2018) Brief facts of the case are that a suit for specific performance of the contract was filed by the respondent against the appellant based on an agreement to sell dated 18.2.1998 with respect to agricultural land. The said suit was partly decreed ex­parte by judgment dated 9.12.2002 in Special Civil Suit No. 2 of 2001 by Civil Judge (Sr. Division), Amalen directing recovery of a sum of Rs. 61,000/­ along with interest @ 6% p.a. from the appellant (defendant therein). The respondent preferred the first appeal before the High Court. However, the said appeal stood transferred from the High Court to the District Court. The Ad­hoc District Judge I, Amalner granted the decree of specific performance in favor of the respondent (plaintiff therein). Aggrieved by the judgment, the appellant filed a second appeal before the High Court of judicature of Bombay, Bench at Aurangabad on 18.9.2017, inter alia, contending that the judgment passed by the 1st Appellate Court came to his knowledge only on 14.9.2017 while explaining the delay of 650 days in filing the appeal. By the impugned judgment passed by the High Court the application seeking condonation was rejected, observing that the plea of non-service of notice due to change of address was not acceptable. It was also observed that the appellant had himself been negligent and had not contacted his counsel, dismissing the second appeal, as time-barred. Learned counsel for the appellant has strenuously urged that the suit was filed for the specific performance of a contract. The trial court decreed the suit partly, for a refund of the earnest amount. The decree of specific performance is a discretionary relief, as specified under Section 16 of the Specific Relief Act. However, without giving an opportunity of hearing to contest the claim, the lower appellate court allowed the appeal of the respondent and passed an ex­parte judgment and decree of specific performance. In support of the contentions, reliance has been placed on a judgment of this Court in the cases of Perumon Bhagvathyu Devaswom Perinadu Village vs. Bhargavi Amma (dead) by LRS and Others, N. Mohan vs. R. Madhu and Rohin Thapa vs. Rohit Dora. Learned counsel representing the respondent contends that a suit for specific performance of the contract was filed long back and the respondent is contesting the matter for the last 20 years. In the said suit in the trial court, the appellant remained ex­parte, the appeal filed before the High Court by the appellant was barred by a limitation of 650 days, which has not been explained showing bona fides. In such a case, interference by this Court is not warranted. Having heard learned counsel for the respective parties at length, the Hon’ble Court noted that in such a situation without any inquiry and without arriving at a finding disbelieving the explanation of the appellant, the High Court was not justified in rejecting the application for condonation of delay. The Supreme Court held, “We request the High Court to take up the second appeal for admission as expeditiously as possible, preferably within one month, and if the second appeal is admitted, to decide and finally dispose of the same within a period of six months from the date of communication of this judgment and order.”

This appeal arises out of the judgment passed on Appeal No. 31286 of 2017 dismissing the application seeking condonation of delay and the appeal as barred by The facts leading to file this appeal are that a suit for specific performance of the contract was filed by the respondent against the appellant based on an agreement to sell dated 18.2.1998 with respect to an agricultural land bearing Gat No. 21 1 admeasuring 1.54 hectares situated at Suit No. 2 of 2001 by Civil Judge Amalner The appellant was duly served and appeared in the said pecuniary jurisdiction of the District Court the said appeal Thereafter a fresh notice was issued to the appellant which change of his address. The Ad­hoc District Judge­I Amalner 2012 vide judgment dated 8.09.2015 and granted decree of appellant filed second appeal before the High Court of judicature of Bombay Bench at Aurangabad on 18.9.2017 inter alia contending that the judgment passed by the Ist Appellate Court came to his knowledge only on 14.9.2017 application seeking condonation was rejected observing that not acceptable. It was also observed that the appellant had himself been negligent and had not contacted his counsel engaged in the lower appellate court. The High Court however observed that the respondent who had been litigating since last 17 years ought not be deprived of the valuable right as accrued to him. With these observations the sum of Rs. 51 000 ­ was remaining. In addition Rs. 10 000 ­ suit partly for refund of earnest amount. The decree of specific performance is a discretionary relief as specified giving an opportunity of hearing to contest the claim the passed an ex­parte judgment and decree of specific performance. Counsel argued that the dismissal of the second appeal on the ground of limitation is wholly on a judgment of this Court in the case of Perumon Bhagvathyu Devaswom Perinadu Village vs. Bhargavi that when appeal is pending in the appellate court where periodical dates are not being given the parties cannot be Considering the facts of the case in which the notice of the appeal sent by publication is not allegedly served and the documents of change of address have been filed by the appellant as well as the respondent which are on record in 10. Reliance is further placed on the decision of this Court in Court subject to direction of deposit of the amount of the agreement and further deposit of the amount of the stamp and registration fee directed to condone the delay and also set­aside the sale deed executed by the Court. Therefore an 11. Per contra learned counsel representing the respondent last 20 years. In the said suit in trial court the appellant and the appellant was represented through an advocate Later due to enhancement of pecuniary jurisdiction the said appeal stood transferred to the court of Ad­hoc District Judge­I Amalner where from notice of the appeal was served before the Ist Appellate Court however the suit seeking specific performance was decreed. The appellant remained ex­parte and on filing the execution the sale deed has also been explained showing bona fides. In such a case 12. Having heard learned counsel for the parties and on perusal of the facts of the case suit seeking specific performance was based on an agreement to sell dated 18.2.1998. As per the said agreement to sell appellant had of Rs. 51000 ­ per bigha. As per the entries on the agreement to sell certain amount was paid. Later on certain Court considering the same refused to grant a decree of specific performance but directed for refund of Rs. 61 000 ­ with interest. The said decree was reversed by the lower Appellate Court directing specific performance. In both the 13. The appellant filed an appeal before the High Court the matter cannot be negligent and it would be unfair to deprive the respondent litigating for the last 17 years of the In this case the appellant has also produced the documents including voters list aadhar card showing his change of address from Amalner to Nashik. On the other hand the respondent has produced the voters’ list of existing. However in such a situation without any enquiry 15. As per the judgment of Perumon Bhagvathy Devaswom supra) the Court while dealing with the issue of condonation has clearly observed that advocates usually inform the litigants who are to be in contact. Sometimes they assure aspect and taking a lenient view we are of the considered opinion that the High Court erred in dismissing the second appeal solely on the ground of limitation. Therefore the request the High Court to take up the second appeal for month and if the second appeal is admitted to decide and hereinabove would not be treated as an expression on the 18. Appeal is thus disposed of in the aforesaid terms. No

A Registration Certificate under Section 4 of the Orissa Act cannot Possibly be the Equivalent of a Valid labor License issued by the labor Department: Supreme Court of India

The characterizing the action of accepting the tender as mala fide was itself open to question but there was no mala fide had been made in facts and circumstances, except spell of the word mala fide. This auspicious judgement was passed by the Supreme Court of India in the case of M/S Utkal Suppliers vs. M/s Maa Kanak Durga Enterprise & ors. [CIVIL APPEAL NOS. 1517-1518 OF 2021] by The Hon’ble Mr. Justice Rohinton Fali Nariman. This appeal was filled by appellant out of a Tender Call Notice the Office of the Superintendent, SCB Medical College and Hospital, Cuttack. By this TCN, sealed tenders in a two-bid were invited from eligible registered diet preparation and catering firms/suppliers etc. having a valid labor license and a food license with a minimum of three years of relevant experience in the field of preparation and distribution of therapeutic and non-therapeutic diet to government or private health institutions having a minimum of 200 beds 1for the year 2019-2020. Four bids were received by the Tender Committee were held to be disqualified inter alia for the reason that they had not submitted a valid labor license, i.e., a contract labor license from the competent authority, as per the TCN requirement. This writ petition was dismissed as being premature, the Tender Committee opened the financial bids and founded the Appellant to be the lowest bidder, quoting an average cost of Rs.82/- per patient per day. Respondent no.1 filed a writ petition, praying that the Tender Committee proceedings be set aside and that Respondent no.1 be awarded the tender. The learned council referred the case of Tata Cellular v. Union of India, (1994) 6 SCC, Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd., (2016) 16 SCC 818, Galaxy Transport Agencies v. New J.K. Roadways, 2020 and Silppi Constructions Contractors v. Union of India, 2019 SCC OnLine SC 1133, The court opinioned that, “the argument of Respondent no.1 with reference to Section 1(4) of Contract Labor Act is wholly misplaced. The requirement of this Act that its applicability be extended only to establishments in which there are 20 or more workmen can be done away with by the appropriate government under the proviso, making it clear that this is not an inflexible requirement. In any case, the acceptance of such argument would amount to second-guessing the authority’s interpretation of its own TCN which, as has been stated hereinabove, cannot be so second-guessed unless it is arbitrary, perverse or mala fide.”

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 1517 1518 OF 2021 ARISING OUT OF SLPNO.4222 4223 OF 2021 M S UTKAL SUPPLIERS M S MAA KANAK DURGA ENTERPRISES & ORS JUDGMENT R.F. Nariman J These appeals arise out of a Tender Call Notice dated 30.12.2019 issued by Respondent No.4 viz. the Office of the Superintendent SCB Medical College and Hospital Cuttack. By this TCN sealed tenders in a two bid system are invited from eligible registered diet preparation and catering firms suppliers etc. having a valid labour licence and a food licence with a minimum of three years of relevant experience in the field of preparation and distribution of therapeutic and non therapeutic diet to government or private health institutions having a minimum of 200 beds for the year 2019 2020. In the “Terms of Reference” attached to the TCN clauses VI.3.3 and VI.3.9 are important and are set out hereunder “VI.3 Eligibility criteria xxx xxx xxx 3. The bidder should have a minimum of 3 years’ experience in diet preparation and its supply services in Govt. or Private Health Institutions only having minimum 200 no. of beds xxx xxx xxx 9. The bidder should have valid labour licenceof Labour Department.” Further under clause VI.13 the right to reject any bid is set out as “VI.13 Right to Accept or Reject the Bid The Hospital Administration reserves the right to accept or reject any bid and the bidding process and reject all such bids at any time prior to award of contract without showing any reason thereby.” Equally under clause VI.16 the administration of the SCB Medical College and Hospital reserves under its sole discretion to disqualify any bid document if any of the documents enumerated in the said clause have not been submitted by the bidder. Clause VI.16(f) reads as follows: The Administration of the SCB Medical College Hospital seeking this bid reserves under its sole discretion to disqualify any bid document if the following documents have not submitted by the bidder xxx xxx xxx f) Labour License from competent authority” Under clause VI.20 sub clausestates: “VI.20 General Information to Bidder xxx xxx xxx 6. The agency would recruit required number of staff for cooking and serving so that diet can be supplied to the indoor patients in time. List of personnel with their Aadhar card copy should be submitted to the office positively.” Pursuant to the aforesaid four bids were received by the Tender Committee from the Appellant Respondent no.1 Respondent no.5 and Respondent no.6. Vide the Technical Committee meeting dated 17.02.2020 Respondent no.1 and Respondent no.6 were held to be disqualified inter alia for the reason that they had not submitted a valid labour licence i.e. a contract labour licence from the competent authority as per the TCN requirement. The Appellant and Respondent no.5 were shortlisted for opening of financial bids. At this stage Respondent no.1 filed a writ petition on 19.02.2020 apprehending that it may be disqualified. This writ petition was dismissed as being premature on 20.02.2020. On 24.02.2020 the Tender Committee opened the financial bids of the Appellant and Respondent no.5 and found the Appellant to be the lowest bidder quoting an average cost of Rs.82 per patient per day. Meanwhile Respondent no.1 filed a writ petition dated 13.03.2020 praying that the Tender Committee proceedings be set aside and that Respondent no.1 be awarded the tender. By a work order dated 27.11.2020 the Appellant was awarded the tender at the approved rate. Pursuant thereto an agreement dated 27.11.2020 was entered into between the Appellant and Respondent no.4 for a period of one year. The High Court by the impugned judgment dated 23.03.2021 referred to the facts and thereafter held: “9. As mentioned above Clause 9 of the eligibility criteria is candid and clear requiring valid license of Labour Department. The said stipulation never mandates the license to be issued under the Contract Labour Act 1970. In the wake of the purpose which is to supply diet therapeutic and non therapeutic to the patients to the hospital we fail to concede to the submissions of requirement of labour license under the Contract Labour Regulation and Abolition) Act 1970. Rather the submission of the Petitioner that the same is required under the Odisha Shops and Commercial Establishments Act appears more acceptable. Therefore the contention of the Opposite Parties requiring the labour license under the Contract Labour Regulation and Abolition) Act 1970 does not seem justified in view of the stipulation made in the TCN. When the submission of labour licenseby the Petitioner under the Odisha Shops and Commercial Establishments Act is not disputed in our considered opinion the same satisfies the requirement sought for at Clause 9 10. Coming to the other shortfall as contended by the Opposite Parties regarding lack of three years’ experience in terms of Clause 3 of the eligibility criteria the admitted case of the parties are that the Petitioner has submitted the certificate issued by All India Institute of Medical Science Bhubaneswar relating to experience of providing patient dietary service in AIIMS since 8th August 2015 till 26th October 2018. This has been negatived by the Opposite Party No.3 by saying that the period of service of the Petitioner in AIIMS Bhubaneswar was not in chronological order and the certificate furnished by the Petitioner was having gap period of extension order from 6th August 2017 to 31st July 2018. Such analysis of Opposite Parties in our considered view is flimsy on the face of Annexure 9 which is the experience certificate issued in favour of the Petitioner by the AIIMS Bhubaneswar. Moreover the period of experience from 8th August 2015 to 26th October 2018 when exceeds three years period the same appears to be satisfying the requirement of Clause 3 without any xxx xxx xxx “13. It is admitted by the Opposite Parties that in the meantime during pendency of the writ petition Opposite Party No.5 has been issued with the work order on 27th November 2020 and he commenced with the supply of work with effect from 1st December 2020. This undoubtedly a development made during pendency of the writ petition and as such is governed by the principle of lis pendens and of course such development happened in the meantime is subject to final result of the writ petition 14. In view of the discussions made above as the bid of the Petitioner is found rejected illegally and contrary to the conditions of the TCN and the Petitioner specifically states that he was the lowest in the financial bid which the Opposite Parties has not replied cleverly the action of Opposite Parties in rejecting the bid of the Petitioner and selecting Opposite Party No.5 for the purpose to grant him the contract the same can safely be opined as mala fide action of the Opposite Parties. Accordingly the grant of contract in order dated 27th November 2020 under Annexure F 3 is quashed 15. In the result while quashing Annexure F 3 Opposite Party Nos.1 to 3 are directed to issue work order in favour of the Petitioner in the event his financial bid is found lower than Opposite Party No.5 to commence the supply work with effect from 1st March 2021. Needless to say that Opposite Party No.5 may continue his supply till 28th February 2021.” Shri Siddhartha Dave learned Senior Advocate appearing on behalf of the Appellant has argued that the High Court could not have second guessed the authority’s reading of its own tender and held that a registration certificate granted under the Orissa Shops and Commercial Establishments Act 1956could replace a labour licence under the Contract Labour Act 1970 “Contract Labour Act”] as required by the authority. He also argued that the minimum three years’ experience as per the requirement contained in clause VI.3.3 was missing as the experience certificate furnished by Respondent no.1 had a gap period from 06.08.2017 to 31.07.2018 which could not be made up and which was wrongly sought to be made up by the High Court. He also argued that it was perverse to hold that the action of the authority in granting the contract in favour of the Appellant was mala fide and further went on to argue that after quashing the work order in favour of the Appellant the High Court exceeded its jurisdiction in directing the authority to grant the work order to Respondent no.1. Shri Aditya Kumar Chaudhary learned counsel appearing on behalf of Respondent no.1 countered each of the aforesaid submissions He pointed out that under Section 1(4) of the Contract Labour Act the Act would apply only to an establishment in which 20 or more workmen are employed. As the TCN did not require that establishments firms etc that applied have 20 or more workmen it is obvious that it is not this Act that was the subject matter of clause VI.3.9 but it was the Orissa Act the registration certificate under which was produced to the satisfaction of the High Court by Respondent no.1. He also countered the argument that three years’ experience was not made out in the case of Respondent no.1 and referred to certain certificates issued by the All India Institute of Medical Sciences Bhubaneswar which made it clear that it had such experience. He argued that in the present case the High Court had not exceeded the parameters of judicial review as it found mala fides attributable to the authority and also argued that the contract was to be awarded to Respondent no.1 only if it was found that its financial bid was lower than that of the Appellant. 10. Having heard learned counsel appearing on behalf of the Appellant and Respondent no.1 what is clear is that the authority concerned read its own TCN to refer to the licence to be submitted by bidders as the labour licence under the Contract Labour Act. This is also clear from a reading of the tender document as a whole and in particular clauses VI.20.6 VI.20.20 and VI.20.21 which read as follows: “VI.20 General Information to Bidder xxx xxx xxx 6. The agency would recruit required number of staff for cooking and serving so that the diet can be supplied to indoor patients in time. List of personnel with their Aadhar card copy should be submitted to the office positively xxx xxx xxx 20. The behaviour of the staff of the agency towards the patients attendants should be conducive and disciplinary action would be taken by the Hospital Administration against the staff of the said agency violating the behavioural norm in consultation with the concerned agency 21. The agency would be responsible to make alternative arrangements in cases of situations such as staff strike local strikeetc. ensuring that the patients get diet in the appropriate time.” Sub clauses and in particular make it clear that the staff employed would be employed by the agency as contract labour the agency being responsible to make alternative arrangements in cases where their staff goes on strike. 11. This Court has repeatedly held that judicial review in these matters is equivalent to judicial restraint in these matters. What is reviewed is not the decision itself but the manner in which it was made. The writ court does not have the expertise to correct such decisions by substituting its own decision for the decision of the authority. This has clearly been held in the celebrated case of Tata Cellular v. Union of India 6 SCC 651 paragraph 94 of which states as follows: “94. The principles deducible from the above are 1) The modern trend points to judicial restraint in The court does not sit as a court of appeal but merely reviews the manner in which the decision 3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision without the necessary expertise which itself may be fallible 4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not such decisions are made qualitatively by 5) The Government must have freedom of contract In other words a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi administrative sphere. However the decision must not only be tested by the application of Wednesbury principle of reasonablenessbut must be free from arbitrariness not affected by bias or actuated by 6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure xxx xxx xxx” 12. Equally this Court in Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd. 16 SCC 818has laid down: “14. We must reiterate the words of caution that this Court has stated right from the time when Ramana Dayaram Shetty v. International Airport Authority of India3 SCC 489] was decided almost 40 years ago namely that the words used in the tender documents cannot be ignored or treated as redundant or superfluous — they must be given meaning and their necessary significance. In this context the use of the word “metro” in Clause 4.2(a) of Section III of the bid documents and its connotation in ordinary parlance cannot be overlooked 15. We may add that the owner or the employer of a project having authored the tender documents is the best person to understand and appreciate its requirements and interpret its documents. The constitutional courts must defer to this understanding and appreciation of the tender documents unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional courts but that by itself is not a reason for interfering with the interpretation This view of the law has been subsequently followed repeatedly see Montecarlo Ltd. v. NTPC Ltd. 15 SCC 272Caretel Infotech Ltd. v. Hindustan Petroleum Corpn. Ltd. 14 SCC 81and State of Madhya Pradesh v U.P. State Bridge Corporation Ltd. 2020 SCC OnLine SC 1001 “15. In the judgment in Bharat Coking Coal Ltd. v. AMR Dev Prabha 2020 SCC OnLine SC 335 under the heading “Deference to authority’s interpretation” this Court stated “51. Lastly we deem it necessary to deal with another fundamental problem. It is obvious that Respondent No. 1 seeks to only enforce terms of the NIT. Inherent in such exercise is interpretation of contractual terms. However it must be noted that judicial interpretation of contracts in the sphere of commerce stands on a distinct footing than while 52. In the present facts it is clear that BCCL and India have laid recourse to Clauses of the NIT whether it be to justify condonation of delay of Respondent No. 6 in submitting performance bank guarantees or their decision to resume auction on grounds of technical failure. BCCL having authored these documents is better placed to appreciate their requirements and interpret them. 16 SCC 818 53. The High Court ought to have deferred to this understanding unless it was patently perverse or mala fide. Given how BCCL s interpretation of these clauses was plausible and not absurd solely differences in opinion of contractual interpretation ought not to have been grounds for the High Court to come to a finding that the appellant committed emphasis in original 16. Further in the recent judgment in Silppi Constructions Contractors v. Union of India 2019 SCC OnLine SC 1133 this Court held as follows contract “20. The essence of the law laid down in the judgments referred to above is the exercise of restraint and caution the need for overwhelming public interest to justify judicial intervention in matters of the state instrumentalities the courts should give way to the opinion of the experts unless the decision is totally arbitrary or unreasonable the court does not sit like a court of appeal over the appropriate authority the court must realise that the authority floating the tender is the best judge of its requirements and therefore the court s interference should be involving minimal. The authority which floats the contract or tender and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted The courts will only interfere to prevent arbitrariness irrationality bias mala fides or perversity. With this approach in mind we shall deal with the present case.” emphasis in original 17. In accordance with these judgments and noting that the interpretation of the tendering authority in this case cannot be said to be a perverse one the Division Bench ought not to have interfered with it by giving its own interpretation and not giving proper credence to the word “both” appearing in Condition No. 31 of the N.I.T. For this reason the Division Bench’s conclusion that JK Roadways was wrongly declared to be ineligible is set aside.” 14. The High Court has not adverted to any of these decisions and in second guessing the authority’s requirement of a licence under the Contract Labour Act has clearly overstepped the bounds of judicial review in such matters. In any case a registration certificate under Section 4 of the Orissa Act cannot possibly be the equivalent of a valid labour licence issued by the labour department. Section 4 of the Orissa Act reads as follows “4. Registration of establishment.(1) Within the period specified in sub section the employer of every establishment shall send to the Inspector of the area concerned a statement in the prescribed form together with such fees as may be prescribed containing the name of the employer arid the manager if any the postal address of the establishment the name if any of the establishment the category of the establishment that is whether it be a shop commercial establishment hotel restaurant cafe boarding or eating house theatre or other place of public amusement of entertainment and such other particulars as may be prescribed 2) No adolescent shall be allowed to work in any employment for more than six hours in a day 3) In the event of any doubt or difference of opinion between an employer and the Inspector as to the category to which an establishment should belong the Inspector shall refer the matter to the Chief Inspector who shall after such enquiry as may be prescribed decide the category of such establishment and his decision shall be final for the purpose of this Act. 4) Within thirty days from the date mentioned in Columnthe statement together with fees shall be sent to the Inspector under sub sectionexisting on the date on which this Act comes into force Date from which the period of 30 days to The date on which this Act comes into force The date on which the A reading of this Section would show that the registration of an establishment under the Orissa Act is to categorise the establishment as a shop commercial establishment hotel etc. and not for the purpose of issuing a labour licence which in the context of the present TCN can only be a labour licence under the Contract Labour Act. 15. The argument of Respondent no.1 with reference to Section 1(4) of Contract Labour Act is wholly misplaced. Section 1(4) of the said Act reads as follows: “1. Short title extent commencement and application.— xxx xxx xxx 4) It applies— a) to every establishment in which twenty or more workmen are employed or were employed on any day of the preceding twelve months as contract b) to every contractor who employs or who employed on any day of the preceding twelve months twenty or more workmen Provided that the appropriate Government may after giving not less than two months’ notice of its intention so to do by notification in the Official Gazette apply the provisions of this Act to any establishment or contractor employing such number of workmen less than twenty as may be specified in The requirement of this Act that its applicability be extended only to establishments in which there are 20 or more workmen can be done away with by the appropriate government under the proviso making it clear that this is not an inflexible requirement. In any case the acceptance of such argument would amount to second guessing the authority’s interpretation of its own TCN which as has been stated hereinabove cannot be so second guessed unless it is arbitrary perverse or mala fide 16. The High Court’s characterising the action of accepting the Appellant’s tender as mala fide is itself open to question. The plea of mala fide made in the writ petition reads as follows: “22. That in the meantime the petitioner ascertained that the tender inviting authorities have connived with the Opp Party No. 4 to 6 and it is also ascertained that Opp. Party No. 4 to 6 belong to one establishment and are supplying the same contract to the SCB so accordingly with a malafide intention both have connived and a pre planned attempt has been made to oust the petitioner on a flimsy ground. The entire exercise has been done by Opp. Party No. 3 to award the contract to Opp. Party No. 5 as they are still continuing the aforesaid work and the entire endeavour of the Opp Party No. 3 is to create some litigation so that the opposite parties can continue during pendency of the writ application.” This plea was answered by the authority in its counter affidavit filed before the High Court as follows: “15. That in reply to the averments made in paragraphs 22 to 25 of the writ petition it is humbly and respectfully submitted that the bidding process has been concluded in a transparent manner adhering to the required guidelines It is further stated that the petitioner failed to comply with two basic requirements under eligibility criteria stipulated in the tender conditions i.e.submission of valid Labour licence ii) submission of proper certificate of continuous three years’ experience Government Reputed Private Health Institution having minimum 200 bed strength. As a result the Tender Committee disqualified the bid of the petitioner It is further submitted that after thorough examination of the documents M s. Utkal Supplierscame out to be the L 1 bidder in the tender process and the same was sent to the higher authorities for detailed examination of technical and financial bids. SLPC being the competent authority as per F.D. Notification No.22393 Fdt.08.06.2012 after due preparation and supply in diet examination of records has recommended to place the work order with the L 1 bidder. Accordingly the work order has been issued in favour of the L 1 biddervide this office letter No. 23347 dated 27.11.2020 and the selected firm has taken up diet services work in the hospital w.e.f A reference to the aforesaid pleadings would also go to show that except for an incantation of the expression mala fide no mala fide has in fact been made out on the facts of this case. 17. The High Court’s judgment is consequently set aside and the appeals are allowed. The Appellant is to be put back within one week from the date of this judgment to complete performance under the agreement entered into between the Appellant and the authority on [ROHINTON FALI NARIMAN [B.R. GAVAI New Delhi April 09 2021

In the absence of the use of a deadly weapon, the conviction for offence punishable u/s 397 IPC cannot be sustained: High Court of Delhi

Theft is considered ‘robbery’ if in committing the theft, or in carrying away or attempting to carry away property obtained by theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. These were stated by the High Court of Delhi through the learned bench led by Justice Mukta Gupta in the case of Asif vs. State (NCT OF Delhi) [CRL.A. 290/2021] on 28.01.2022. The facts of the case are that a complaint was lodged stating he along with Mohd. Ibrahim and Abdul Hamid were going to their house from their workplace. When they reached at Satyam Cinema and Mohd. Ibrahim was 40-50 paces in front of them and one Asif, who worked with him earlier met them opposite of Satyam Cinema. Asif asked for ₹50. When the complainant refused to give the money, Asif took out the mobile phone of the complainant. His friend Abdul Hamid tried to stop him when Asif took out a blade. Asif could not identify the complainant as his face was covered with muffler. However, the complainant duly identified him. In the meantime, one associate of Asif, hit him and both of them ran away. They chased the appellant and his associate but they disappeared. He went to the house of Asif but Asif was not present there. In the meantime, his friend Mohd. Ibrahim had already made a call to the police. Thus, three of them i.e. Sonu, Abdul Hamid and Mohd. Ibrahim went to the Police Station and lodged the FIR. By this appeal, the appellant challenges the judgment convicting him for the offence punishable u/s 397 IPC. The petitioner’s counsel submitted that there are contradictions in the testimonies of witnesses. Admittedly, Mohd. Ibrahim (PW-1) was not an eye-witness as he himself admitted in his testimony that he was walking ahead. He further stated that the alleged weapon of offence i.e. the blade has not been recovered and in the absence thereof, it cannot be said that it was a deadly weapon. No injury has been caused to the victim. Even as per the prosecution, the weapon was used after the alleged snatching, hence the appellant cannot be convicted for the offence punishable under Section 397 IPC. The respondent’s counsel submitted that the version of the complainant (PW-2) is duly corroborated with other witnesses. He stated that even if PW-1 stated that he was walking a few steps ahead, the same does not mean that he did not witness the incident. It was further contended that since the blade causes serious incised wound injury, it falls within the category of deadly weapon. As per the nominal roll, the appellant is involved in four other cases of similar nature. Hence, there is no error in the impugned judgment of conviction and order on sentence. Considering the facts and circumstances, the Court observed that in the absence of the use of a deadly weapon being proved by the prosecution, the conviction of the appellant for offence punishable u/s 397 IPC cannot be sustained and is required to be modified to an offence punishable under Section 392 IPC and accordingly the appeal was disposed of. It was further provided that “theft is ‘robbery’ if, in order to committing of the theft or in committing the theft, or in carrying away or attempting to carry away property obtained by theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint”.

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on : 10th December 2021 Pronounced on :28th January 2022 CRL.A. 290 2021 ASIF Represented by: Mr. Kunal Malhotra Advocate with Appellant Mr. Ravinder Gaur Advocate DHCLSC. STATERespondent Represented by: Mr. Amit Gupta APP for the State through video conferencing with SI G.R. Meena PS Ranjit Nagar. HON BLE MS. JUSTICE MUKTA GUPTA MUKTA GUPTA J. By this appeal the appellant challenges the judgment dated 5th July 2019 convicting the appellant for offence punishable under Section 397 IPC and the order on sentence dated 17th July 2019 directing him to undergo sentence of seven years imprisonment. Learned counsel for the appellant assailing the conviction contends that the learned Trial Court failed to notice glaring contradictions in the testimonies of PW 1 PW 2 and PW 4 who gave altogether different versions in respect of the manner of commission of alleged robbery and the investigation carried out by the police qua the three witnesses. Admittedly Mohd. Ibrahim is not an eye witness as he himself admitted in his testimony that he was walking ahead of PW 2 and PW 4. He further stated that his statement was never recorded by the police during the investigation CRL.A. 290 2021 either at the spot or thereafter. Testimony of PW 2 does not inspire confidence and his version is not corroborated by PW 1 PW 4 and PW 8. As per rukka PW 2 alleged that both the SIM cards were taken out by the accused from his mobile phone and returned back to him however in his testimony before the Court he is silent about the removal and handing over of the SIM cards. Further PW 2 stated that he never visited the place of occurrence after the incident and all the written work was done at the Police Station. PW 8 stated that he went to the spot with PW 2 and prepared the site plan. PW 4 altogether contradicted the version of PW 2 as he deposed that the appellant took out the blade and took Sonu with him whereas PW 2 stated that the appellant took out the blade kicked him and PW 4 tried to stop him when co accused helped the appellant the appellant hit PW 2 and ran away. The alleged weapon of offence i.e. the blade has not been recovered and in the absence thereof it cannot be said that it was a deadly weapon. No injury has been caused to the victim. Even as per the prosecution the weapon was used after the alleged snatching hence the appellant cannot be convicted for the offence punishable under Section 397 IPC. Reliance in this regard is placed on the decisions of this Court in Samiuddin @ Chotu vs. State of NCT of Delhi Crl. Appeal No.461 2016 decided on 9th November 2010 Bishan vs. State 1984DRJ 78 Rakesh Kumar vs. The State of NCT of Delhi 2005JCC 334 and Sunil @ Munna vs. The State2010JCC 388. Countering the contentions of the learned counsel for the appellant Mr. Amit Gupta learned APP for the State submitted that the version of the complainant Sonuis duly corroborated by PW 1 and PW 4. Even if PW 1 stated that he was walking a few steps ahead the same does not mean CRL.A. 290 2021 that he did not witness the incident when the complainant was waylaid by the appellant and his associate who snatched the mobile phone and fled away from the scene. Call to the PCR was made by PW 1 from the spot and hence his presence at the spot thereby witnessing the incident stands proved. Version of the complainant is also corroborated by PW 4. A mere detail testimony of one of the witnesses would not go to show that the complainant’s version is not corroborated. Once the deadly weapon is shown which in the present case was a blade offence under Section 397 IPC is made out. Ingredients of the offence punishable under Section 397 IPC are satisfied once the weapon of offence is used and infliction of injury or that the weapon of offence should be recovered is not essential to prove the offence under Section 397 IPC. Since the blade causes serious incised wound injury it falls within the category of deadly weapon. As per the nominal roll the appellant is involved in four other cases of similar nature. Hence there is no error in the impugned judgment of conviction and order on sentence the appeal be dismissed. FIR No.21 2015 was registered at Police Station Ranjit Nagar for offence punishable under Sections 392 397 34 IPC on the statement of the complainant Sonu who stated that on 9th January 2015 at about 10:30 p.m. opposite Satyam Cinema Ranjit Nagar Delhi the appellant and co accused Moideen @ Tinku committed robbery of his mobile phone made Karbon from his possession by showing him a deadly weapon that is the blade. In his deposition before the Court the complainant stated that on 9th January 2015 he along with Mohd. Ibrahim and Abdul Hamid PW 4) were going to their house from their workplace that is Main Bazar Patel Nagar Delhi. When they reached at Satyam Cinema and Mohd. CRL.A. 290 2021 Ibrahim was 40 50 paces in front of them one Asif who worked with him earlier met them opposite Satyam Cinema. Asif asked for ₹50 . When the complainant refused to give the money Asif took out the mobile phone of the complainant make Karbon from his pocket of the pant. His friend Abdul Hamid tried to stop him when Asif took out a blade. Asif could not identify the complainant as his face was covered with muffler. However the complainant duly identified him. In the meantime one associate of Asif who was present in the Court hit him and both of them ran away. They chased the appellant and his associate but they disappeared. He went to the house of Asif but Asif was not present there. In the meantime his friend Mohd. Ibrahim had already made a call to the police. Thus three of them that is Sonu Abdul Hamid and Mohd. Ibrahim went to the Police Station and lodged the FIR. Statement of Sonu on which the FIR was registered immediately after the incident had named Asif as the boy who had first stopped him and demanded ₹50 . Mohd. Ibrahim also stated that all three of them were going to their home from the work place and he was walking fast. He was 40 50 paces ahead of Abdul Hamid and Sonu who was stopped by one person near Satyam Cinema. He was called by Abdul Hamid by saying that ‘Sonu ka mobile kisi ne chhin liya hai tum ghar ja kar abbu ko bula lao’ and he went home and called the father of Abdul Hamid who is his uncle and also made a call at 100 number. This witness in his cross examination has clarified that when he turned back after hearing the voice of Abdul Hamid the snatcher was running after snatching. Though Mohd. Ibrahim in his examination in chief and cross examination does not identify the appellant as the accused who had snatched CRL.A. 290 2021 but corroborated the version of the complainant and Abdul Hamid to the extent that at around 10:30 p.m. after he closed the shop at Friday weekly market and they were going home the incident took place and Mohd. Ibrahim made the PCR call. Abdul Haimd who appeared as PW 4 stated that though he did not remember the date and month in the year 2015 on the date of incident he along with Sonu and Mohd. Ibrahim was going from the duty and when they reached Satyam Cinema at around 11:00 p.m. accused Asif met them and snatched the mobile phone of Sonu. When they asked him to return the mobile phone Asif took out the blade. Mohd. Ibrahim went to the house called Sonu s father at the spot and also made a call to the police. Thus this witness did not depose the fact that first Asif asked for ₹50 from Sonu and when he refused he took out the mobile phone. On being cross examined by the learned APP for the State he accepted that Asif was demanding ₹50 from Sonu and when he refused to give him ₹50 then Asif took out mobile phone make Karbon from his pocket of pant. In the cross examination he also accepted that Asif removed the two SIMs and handed over the same to Sonu and refused to return the mobile phone and that Asif gave kick blow to Sonu and thereafter fled from the spot. In his cross examination he clarified that the blade taken out by the accused was a small blade and not a shaving blade but it was of different type. Thus even if Mohd. Ibrahim does not claim to have witnessed the incident as he was 40 50 paces ahead and had only heard Abdul Hamid calling that Sonu’s mobile has been snatched however the version of Sonu is duly corroborated by Abdul Hamid in respect of the incident who has clearly stated about snatching of the mobile phone and when asked to return the mobile phone then appellant took out a CRL.A. 290 2021 blade. It is trite law that even if the weapon of offence is shown after snatching had taken place for running away along with snatched article offence under Section 397 IPC is attracted. Section 390 Cr.P.C. provides that in a robbery there is either theft or extortion. It is further provided that theft is robbery if in order to committing of the theft or in committing the theft or in carrying away or attempting to carry away property obtained by theft the offender for that end voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or of instant wrongful restraint. Thus if the offender uses the deadly weapon at the time of committing robbery or dacoity which would include even the fear of instant death or instant hurt or wrongful restrain or an attempt to cause death or hurt or wrongful restraint even while carrying away or attempting to carry away the property obtained by theft the act of the offender will fall within the four corners of Section 397 IPC. Thus the contention of learned counsel for the appellant that Section 397 IPC is not made out as the blade was allegedly shown after the mobile phone was robbed deserves to be rejected. The decisions relied upon by the learned counsel for the appellant did not consider the necessary ingredients of an offence of robbery which in turn is a necessary ingredient of an offence punishable under Section 397 IPC. In respect of the second contention of the appellant that since the blade has not been recovered it cannot be held that the same was a deadly weapon it is well settled that whether the weapon of offence is deadly or not is a question of fact which would depend on the nature of weapon used in the offence. A pistol revolver sword axe or even a knife are deadly CRL.A. 290 2021 weapons. However in the case of knife the length of the knife its sharpness and the pointed edge has to be seen to ascertain whether the knife is a deadly weapon or not. In the present case the evidence of the prosecution is that the appellant took out a blade and kicked the complainant. In cross examination it is further stated that the blade was not a shaving blade hence the kind of blade used is not proved even by the ocular evidence of the witnesses. Though it is not essential that the weapon of offence should be recovered to prove the nature of the weapon used and that a deadly weapon was used at the time of commission of the offence however the prosecution is required to prove the nature of the weapon of offence used specially in the case of knife or blade. Since from the evidence of the prosecution witnesses the size and sharpness of the blade is not proved hence the prosecution has failed to prove that the appellant used a deadly weapon. In the decision reported as MANU DE 3330 2009 Sanjay and Ors. vs. The State of NCT Delhi this Court held as under: 12. The Investigating Officer has not prepared any sketch of the surgical blade alleged to have been recovered from the possession of the appellant Sanjay. The seizure memo of the blade does not show what its size or shape was. Though the police officials have described the instrument recovered from the possession of the appellant as a surgical blade none of the witness has given any description of the blade which has been referred by them as a surgical blade. The trial court has also not made any observation as regards the size shape or design of the blade produced during trial. Unless size and shape etc. of the blade recovered from the appellant is given or a sketch is prepared from which these particulars may be ascertained or a photograph of the weapon is produced it is not possible for this Court to ascertain whether the blade recovered from the CRL.A. 290 2021 possession of the appellant was actually a surgical blade or not and whether it was a deadly weapon or not. There is no evidence or opinion on record to show that the blade recovered from the appellant was such as would ordinarily result in death by its use. What would make a blade deadly is its size design and shape etc. and a weapon cannot be said to be a deadly weapon merely because the witnesses described it as a surgical blade. This is more so when neither any sketch or photograph is produced nor any particulars of the instrument are given during evidence and the trial court also does not make a note as regards the size shape and design etc. of the blade produced before it." In the absence of the use of a deadly weapon being proved by the prosecution the conviction of the appellant for offence punishable under Section 397 IPC cannot be sustained and is required to be modified to an offence punishable under Section 392 IPC. A perusal of the nominal roll of the appellant would reveal that the appellant has undergone approximately 3 years and 9 months of sentence including remissions and the appellant is involved in four other FIRs including three FIRs relating to similar offences. 13. Consequently the conviction of the appellant is altered to for an offence punishable under Section 392 IPC and the sentence of the appellant is modified to rigorous imprisonment for a period of five years. 14. Appeal is disposed of. Judgement be uploaded on the website of the Court and be conveyed to the Superintendent Jail for updation of the record and intimation to the JUDGE JANUARY 28 2022 vk MUKTA GUPTA) CRL.A. 290 2021

The Iron and Steel Co. Ltd Vs. M/S. Tiwari Road Lines

In the matter of settlement of dispute by arbitration, the agreement executed by the parties has to be given great importance and an agreed procedure for appointing the arbitrators has been placed on high pedestal and has to be given preference to any other mode for securing appointment of an arbitrator The appellant The Indian Iron and Steel Co. Ltd., having its registered office at Kolkata, invited tenders on 17.2.2003 for transportation of pig iron and steel material from Burnpur /Kolkata stockyard to different customer locations in various parts of the country.The tender submitted by the respondent M/s. Tiwari Road Lines was accepted and a letter was issued on 14.5.2003 awarding the contract to the respondent to transport the material with effect from 17.5.2003 for a period of two years. The tender was submitted by the respondent at the Head Office of the company at Kolkata and the agreement was also signed between the parties at Kolkata. In terms of the agreement the respondent furnished a bank guarantee for Rs.5,00,000/-. According to the appellant there was failure on the part of the respondent to comply with the terms of the agreement and accordingly the appellant invoked the bank guarantee on 16.9.2003. PROCEDURAL HISTORY:Feeling aggrieved by the encashment of the bank guarantee, the respondent filed an application before the Chief Judge, City Civil Courts, Hyderabad, who was the designated authority under Section 11 of the Arbitration and Conciliation Act, 1996 under the scheme framed by the Andhra Pradesh High Court, for appointment of an arbitrator to decide the dispute between the parties. The appellant contested the application on two grounds, viz., that the City Civil Court at Hyderabad had no territorial jurisdiction to entertain the application and, secondly, under the terms of the agreement between the parties the dispute had to be resolved in accordance with the Rules of Arbitration of the Indian Council of Arbitration and the application filed under Section 11 of the Act was not maintainable.The Chief Judge, City Civil Courts, Hyderabad allowed the application by order dated 31.3.2004 and appointed a retired judicial officer as arbitrator to decide the dispute. The said order was challenged by the appellant by filing a civil revision petition before the Andhra Pradesh High Court. The revision petition was allowed and the matter was remanded to the City Civil Court, Hyderabad to consider the question of jurisdiction. The City Civil Court again allowed the application filed by the respondent by order dated 27.12.2004 and appointed a retired judicial officer as arbitrator to decide the dispute between the parties.This order was challenged by the appellant by filing a writ petition in the High Court on the ground, inter alia, that the application under Section 11 of the Act was not maintainable. The High Court negated the contention raised by the appellant and dismissed the writ petition.It is these orders in question in present appeal. ISSUE BEFORE THE COURT:Whether the city civil court at Hyderabad had territorial jurisdiction?Whether the dispute between the parties should be decided in accordance with the Rules of Arbitration of the Indian Council of Arbitration or not?Whether such an application moved by the respondent was maintainable? RATIO OF THE COURT:The court observes that i, General Conditions of Contract a perusal of clause 13.1 shows that under the terms of the agreement all disputes or differences whatsoever arising between the parties have to be decided by arbitration in accordance with the Rules or Arbitration of the Indian Council of Arbitration and the award made in pursuance thereof shall be binding on the parties.The Court considered the scope of sub-section (4) of Section 20 of the Arbitration Act, 1940 and held as under: – “Sub-section (4) of Section 20 says that the reference shall be to the arbitrator appointed by the parties. Such agreed appointment may be contained in the agreement itself or may be expressed separately. Where the agreement itself specifies and names the arbitrator, it is obligatory upon the court, in case it is satisfied that the dispute ought to be referred to the arbitrator, to refer the dispute to the arbitrator specified in the agreement.The court observed that the legislative scheme of Section 11 is very clear. If the parties have agreed on a procedure for appointing the arbitrator or arbitrators as contemplated by sub-section (2) thereof, then the dispute between the parties has to be decided in accordance with the said procedure and recourse to the Chief Justice or his designate cannot be taken straightaway.A party can approach the Chief Justice or his designate only if the parties have not agreed on a procedure for appointing the arbitrator as contemplated by sub-section (2) of Section 11 of the Act or the various contingencies provided for in sub-section (6) have arisen. Since the parties here had agreed on a procedure for appointing an arbitrator for settling the dispute by arbitration as contemplated by sub-section (2) and there is no allegation that any one of the contingencies enumerated in clause (a) or (b) or (c) of sub-section (6) had arisen, the application moved by the respondent herein to the City Civil Court, Hyderabad, was clearly not maintainable and the said court had no jurisdiction to entertain such an application and pass any order. The order dated 27-12-2004, therefore, is not sustainable.The court observed that it is not open to the Court to ignore such an arbitration clause of the agreement and to appoint another person as an arbitrator. Only in cases where the arbitrator specified and named in the agreement refuses or fails to act or where the agreement does not specify the arbitrator and the parties cannot also agree upon an arbitrator, does the court get the jurisdiction to appoint an arbitrator.. It is for this reason that in clause (a) of sub-section (8) of Section 11 of the Act it is specifically provided that the Chief Justice or the person or institution designated by him, in appointing an arbitrator, shall have due regard to any qualifications required of the arbitrator by the agreement of the parties.The court also considered the case Government of A.P. vs. K. Mastan Rao 1995 Supp. (4) SCC 528, the agreement between the parties provided for settlement of dispute by three persons holding the post of Chief Engineer of the project, Deputy Secretary to Government, Finance Department, and the Director of Accounts of the project. On the petition made by the contractor, the subordinate judge removed the panel of three arbitrators and appointed a retired Chief Engineer as the sole arbitrator to adjudicate the dispute.In Rite Approach Group Ltd. v. Rosoboronexport [(2006) 1 SCC 206] it was held that in view of the specific provision specifying the jurisdiction of the Court to decide the matter, this Court cannot assume the jurisdiction. Whenever there is a specific clause conferring jurisdiction on particular Court to decide the matter then it automatically ousts the jurisdiction of the other Court. In this agreement, the jurisdiction has been conferred on the Chamber of Commerce and Trade of the Russian Federation as the authority before whom the dispute shall be resolved.This being the settled position of law we are clearly of the opinion that the respondent should have initiated proceedings for settlement of disputes by arbitration in accordance with the Rules of Arbitration of the Indian Council of Arbitration as provided in clause 13.1 of the agreement and the application moved by it to the City Civil Court, Hyderabad, for appointment of an arbitrator was not maintainable.Consequently, the order passed by the City Civil Court, Hyderabad dated 27.12.2004 is wholly illegal and without jurisdiction and is liable to be set aside. DECISION HELD BY COURT:In this case the judgement was given by JUSTICE G.P MATHUR that the appeal is allowed with costs throughout. The judgment and order dated 9.9.2005 of the High Court of Andhra Pradesh and the judgment and order dated 27.12.2004 of the City Civil Court, Hyderabad appointing an arbitrator are set aside. It will be open to the parties to get the dispute decided by arbitration in accordance with the Rules of Arbitration of the Indian Council of Arbitration.

Appeal23807 The Iron and Steel Co. Ltd M s. Tiwari Road Lines DATE OF JUDGMENT: 08 05 2007 G.P. Mathur & Lokeshwar Singh Panta JUDGMENT G.P. Mathur J CIVIL APPEAL NO. 2386 OF 2007 Special Leave PetitionNo.261005 Leave granted 2. This appeal by special leave has been filed against the judgment and order dated 9.9.2005 of a Division Bench of Andhra Pradesh High Court by which the writ petition filed by the appellant herein The Indian Iron and Steel Co. Ltd. was dismissed. The writ petition was filed assailing the order dated 27.12.2004 of Chief Judge City Civil Courts Hyderabadby which the petition filed by the respondent M s. Tiwari Road Lines was allowed and a retired judicial officer was appointed as sole arbitrator to decide the dispute between the parties 3. The appellant The Indian Iron and Steel Co. Ltd. having its registered office at Kolkata invited tenders on 17.2.2003 for transportation of pig iron and steel material from Burnpur Kolkata stockyard to different customer locations in various parts of the country. The tender submitted by the respondent M s. Tiwari Road Lines was accepted and a letter was issued on 14.5.2003 awarding the contract to the respondent to transport the material with effect from 17.5.2003 for a period of two years. The tender was submitted by the respondent at the Head Office of the company at Kolkata and the agreement was also signed between the parties at Kolkata. In terms of the agreement the respondent furnished a bank guarantee for Rs.5 00 000 . According to the appellant there was failure on the part of the respondent to comply with the terms of the agreement and accordingly the appellant invoked the bank guarantee on 16.9.2003. Feeling aggrieved by the encashment of the bank guarantee the respondent filed an application before the Chief Judge City Civil Courts Hyderabad who was the designated authority under Section 11 of the Arbitration and Conciliation Act 1996under the scheme framed by the Andhra Pradesh High Court for appointment of an arbitrator to decide the dispute between the parties. The appellant contested the application on two grounds viz. that the City Civil Court at Hyderabad had no territorial jurisdiction to entertain the application and secondly under the terms of the agreement between the parties the dispute had to be resolved in accordance with the Rules of Arbitration of the Indian Council of Arbitration and the application filed under Section 11 of the Act was not maintainable. The Chief Judge City Civil Courts Hyderabad allowed the application by order dated 31.3.2004 and appointed a retired judicial officer as arbitrator to decide the dispute. The said order was challenged by the appellant by filing a civil revision petition before the Andhra Pradesh High Court. The revision petition was allowed and the matter was remanded to the City Civil Court Hyderabad to consider the question of jurisdiction. The City Civil Court again allowed the application filed by the respondent by order dated 27.12.2004 and appointed a retired judicial officer as arbitrator to decide the dispute between the parties. This order was challenged by the appellant by filing a writ petition in the High Court on the ground inter alia that the application under Section 11 of the Act was not maintainable as the agreement between the parties contained a clause that any dispute between the parties shall be decided in accordance with the Rules of Arbitration of the Indian Council of Arbitration and the respondent had not taken recourse to the said Rules. The other plea taken in the writ petition was that the City Civil Court Hyderabad had no territorial jurisdiction to entertain the application under Section 11 of the Act. The High Court negatived the contention raised by the appellant and dismissed the writ petition and it is these orders which are subject matter of challenge in the 4. We have heard learned counsel for the parties and have perused 5. After the tender of the respondent M s. Tiwari Road Lines had been accepted an agreement was executed between the parties which contained General Conditions of Contract for transportation of iron steel materials and pig iron from Burnpur and Kolkata to various destinations in India. Clause 13 of the General Conditions of Contract reads as under: 13. ARBITRATION 13.1 All disputes or differences whatsoever arising between the parties out of or relating to the construction meaning and operation or effect of this contract or the breach thereof shall be settled by arbitration in accordance with the Rules of Arbitration of the Indian Council of Arbitration and the award made in pursuance thereof shall be binding on the parties 13.2 In all above cases the work under the contract shall if reasonably possible continue during the arbitration proceedings and no payment due or payable to the contractor as advised by the company will be withheld by the companion account of such proceedings A perusal of clause 13.1 will show that under the terms of the agreement all disputes or differences whatsoever arising between the parties have to be decided by arbitration in accordance with the Rules or Arbitration of the Indian Council of Arbitration and the award made in pursuance thereof shall be binding on the parties 6. It is not disputed that the respondent did not make any effort to have the dispute settled by arbitration in accordance with the Rules of Arbitration of the Indian Council of Arbitration. On the contrary it straightaway moved an application under Section 11 of the Arbitration and Conciliation Act 1996 before the City Civil Court Hyderabad which was the designated court in accordance with the scheme framed by the High Court of Andhra Pradesh. The principal question which requires consideration is whether such an application moved by the respondent was maintainable. Sub sectionstoof Section 11 of the Act read as under: 11 Appointment of arbitratorsA person of any nationality may be an arbitrator unless otherwise agreed by the parties 2) Subject to sub sectionthe parties are free to agree on a procedure for appointing the arbitrator or 3) Failing any agreement referred to in sub section 2) in an arbitration with three arbitrators each party shall appoint one arbitrator and the two appointed arbitrators shall appoint the third arbitrator who shall act as the presiding arbitrator 4) If the appointment procedure in sub sectiona) a party fails to appoint an arbitrator within thirty days from the receipt of a request to do so from the other party or b) the two appointed arbitrators fail to agree on the third arbitrator within thirty days from the date of their appointment the appointment shall be made upon request of a party by the Chief Justice or any person or institution designated by him 5) Failing any agreement referred to in sub section 2) in an arbitration with a sole arbitrator if the parties fail to agree on the arbitrator within thirty days from receipt of a request by one party from the other party to so agree the appointment shall be made upon request of a party by the Chief Justice or any person or institution designated by him 6) Where under an appointment procedure agreed upon by the parties a) a party fails to act as required under that procedure or b) the parties or the two appointed arbitrators fail to reach an agreement expected of them under that procedure or c) a person including an institution fails to perform any function entrusted to him or it under that a party may request the Chief Justice or any person or institution designated by him to take the necessary measure unless the agreement on the appointment procedure provides other means for securing the 7) A decision on a matter entrusted by sub sectionor sub sectionor sub sectionto the Chief Justice or the person or institution designated by him is final Sub sectionof Section 11 of the Act provides that subject to sub sectionthe parties are free to agree on a procedure for appointing the arbitrator. The opening part of sub sectionsandof Section 11 of the Act use the expression "failing any agreement referred to in sub sectionandwill come into play only when there is no agreement between the parties as is referred to in sub sectionof Section 11 of the Act viz. that the parties have not agreed on a procedure for appointing the arbitrator or arbitrators. If the parties have agreed on a procedure for appointing arbitrator or arbitrators sub sectionsandof Section 11 of the Act can have no application. Similarly under sub sectionof Section 11 request to the Chief Justice or to an institution designated by him to take the necessary measures can be made if the conditions enumerated in clausesororof this sub section are satisfied. Therefore recourse to sub sectioncan be had only where the parties have agreed on a procedure for appointment of an arbitrator buta party fails to act as required under that procedure orthe parties or the two appointed arbitrators fail to reach an agreement expected of them under that procedure ora person including an institution fails to perform any function entrusted to him or it under that procedure. Therefore a combined reading of the various sub sections of Section 11 of the Act would show that the request to the Chief Justice for appointment of an arbitrator can be made under sub sectionsandof Section 11 where parties have not agreed on a procedure for appointing the arbitrator as contemplated by sub section 2) of Section 11. A request to the Chief Justice for appointment of an arbitrator can also be made under sub sectionwhere parties have agreed on a procedure for appointment of an arbitrator as contemplated in sub sectionbut certain consequential measures which are required to be taken as enumerated in clausesoror c) of sub sectionare not taken or performed. 7. In the present case the agreement executed between the parties contains an arbitration clause and clause 13.1 clearly provides that all disputes and differences whatsoever arising between the parties out of or relating to the construction meaning and operation or effect of the contract or the breach thereof shall be settled by arbitration in accordance with the Rules of Arbitration of the Indian Council of Arbitration and the award made in pursuance thereof shall be binding on the parties. This clause is in accordance with sub sectionof Section 11 of the Act. There being an agreed procedure for resolution of disputes by arbitration in accordance with the Rules of Arbitration of the Indian Council of Arbitration sub sections(4) andof Section 11 can have no application. The stage for invoking sub sectionof Section 11 had also not arrived. In these circumstances the application moved by the respondent before the City Civil Court Hyderabad which was a designated authority in accordance with the scheme framed by the Chief Justice of the Andhra Pradesh High Court was not maintainable at all and the City Civil Court had no jurisdiction or authority to appoint an arbitrator. Thus the order dated 31.03.2004 passed by the Chief Judge City Civil Courts Hyderabad appointing a retired juridical officer as arbitrator is clearly without jurisdiction and has to be set aside 8. The legislative scheme of Section 11 is very clear. If the parties have agreed on a procedure for appointing the arbitrator or arbitrators as contemplated by sub sectionthereof then the dispute between the parties has to be decided in accordance with the said procedure and recourse to the Chief Justice or his designate cannot be taken straightaway. A party can approach the Chief Justice or his designate only if the parties have not agreed on a procedure for appointing the arbitrator as contemplated by sub sectionof Section 11 of the Act or the various contingencies provided for in sub sectionhave arisen. Since the parties here had agreed on a procedure for appointing an arbitrator for settling the dispute by arbitration as contemplated by sub sectionand there is no allegation that anyone of the contingencies enumerated in clausesororof sub sectionhad arisen the application moved by the respondent herein to the City Civil Court Hyderabad was clearly not maintainable and the said court had no jurisdiction to entertain such an application and pass any order. The order dated 27.12.2004 therefore is not sustainable. 9. In the matter of settlement of dispute by arbitration the agreement executed by the parties has to be given great importance and an agreed procedure for appointing the arbitrators has been placed on high pedestal and has to be given preference to any other mode for securing appointment of an arbitrator. It is for this reason that in clauseof sub sectionof Section 11 of the Act it is specifically provided that the Chief Justice or the person or institution designated by him in appointing an arbitrator shall have due regard to any qualifications required of the arbitrator by the agreement of the 10. The judicial pronouncements also show that normally the clause in the agreement providing for settling the dispute by arbitration by arbitrators having certain qualifications or in certain agreed manner should be adhered to and should not be departed with unless there are strong grounds for doing so. In S. Rajan vs. State of Kerala3 SCC 608 the Court was called upon to interpret sub sectionof Section 20 of the Arbitration Act 1940 which reads as 20. Application to file in Court arbitration agreement. 1) Where any persons have entered into an arbitration agreement before the institution of any suit with respect to the subject matter of the agreement or any part of it and where a difference has arisen to which the agreement applies they or any of them instead of proceeding under Chapter II may apply to a Court having jurisdiction in the matter to which the agreement relates that the agreement be filed in Court 2) The application shall be in writing and shall be numbered and registered as a suit between one or more of the parties interested or claiming to be interested as plaintiff or plaintiffs and the remainder as defendant or defendants if the application has been presented by all the parties or if otherwise between the applicant as plaintiff and the other parties as defendants 3) On such application being made the Court shall direct notice thereof to be given to all parties to the agreement other than the applicants requiring them to show cause within the time specified in the notice why the agreement should not be filed 4) Where no sufficient cause is shown the Court shall order the agreement to be filed and shall make an order of reference to the arbitrator appointed by the parties whether in the agreement or otherwise or where the parties cannot agree upon an arbitrator to an arbitrator appointed by the court 5) Thereafter the arbitration shall proceed in accordance with and shall be governed by the other provisions of this Act so far as they can be made applicable The Court considered the scope of sub sectionof Section 20 of the Arbitration Act 1940 and held as under: Sub sectionof Section 20 says that the reference shall be to the arbitrator appointed by the parties. Such agreed appointment may be contained in the agreement itself or may be expressed separately. Where the agreement itself specifies and names the arbitrator it is obligatory upon the court in case it is satisfied that the dispute ought to be referred to the arbitrator to refer the dispute to the arbitrator specified in the agreement. It is not open to the Court to ignore such an arbitration clause of the agreement and to appoint another person as an arbitrator. Only in cases where the arbitrator specified and named in the agreement refuses or fails to act or where the agreement does not specify the arbitrator and the parties cannot also agree upon an arbitrator does the court get the jurisdiction to appoint an arbitrator. Since in the present case the agreement specified and named the arbitrator there was no occasion or warrant for the court to call upon the parties to submit panels of arbitrators. The court was bound to refer the dispute only to the arbitrator named and specified in the agreement In Government of A.P. vs. K. Mastan Rao 1995 Supp.SCC 528 the agreement between the parties provided for settlement of dispute by three persons holding the post of Chief Engineer of the project Deputy Secretary to Government Finance Department and the Director of Accounts of the project. On the petition made by the contractor the subordinate judge removed the panel of three arbitrators and appointed a retired Chief Engineer as the sole arbitrator to adjudicate the dispute. This Court after taking into consideration the terms of the agreement set aside the order passed by the subordinate judge and directed that the arbitration matter should be entrusted to the incumbents of the three posts mentioned in the agreement. In Rite Approach Group Ltd. vs. Rosoboronexport1 SCC 206 it was held as under in para 20 of the Report: 20. In view of the specific provision specifying the jurisdiction of the Court to decide the matter this Court cannot assume the jurisdiction. Whenever there is a specific clause conferring jurisdiction on particular Court to decide the matter then it automatically ousts the jurisdiction of the other Court. In this agreement the jurisdiction has been conferred on the Chamber of Commerce and Trade of the Russian Federation as the authority before whom the dispute shall be resolved. In view of the specific arbitration clause conferring power on the Chamber of Commerce and Trade of the Russian Federation it is that authority which alone will arbitrate the matter and the finding of that arbitral tribunal shall be final and obligatory for both the parties 11. This being the settled position of law we are clearly of the opinion that the respondent should have initiated proceedings for settlement of disputes by arbitration in accordance with the Rules of Arbitration of the Indian Council of Arbitration as provided in clause 13.1 of the agreement and the application moved by it to the City Civil Court Hyderabad for appointment of an arbitrator was not maintainable. Consequently the order passed by the City Civil Court Hyderabad dated 27.12.2004 is wholly illegal and without jurisdiction and is liable to be set aside 12. Learned counsel for the appellant has also submitted that City Civil Court Hyderabad had no jurisdiction to entertain the application moved by the respondent as no part of cause of action had accrued there. In this connection he has referred to clauseof sub section 12) of Section 11 and clauseof sub sectionof Section 2 of the Act which will govern the question of jurisdiction as to Chief Justice of which High Court has to be approached for moving an application under Section 11 of the Act. Learned counsel has submitted that the tenders were floated at Kolkata the respondent submitted the tender at Kolkata the agreement was executed at Kolkata and therefore the court at Hyderabad had no jurisdiction to entertain the application. Learned counsel has also submitted that the view taken by the High Court that as the bank guarantee was furnished at Hyderabad and was encashed at Hyderabad the court at Hyderabad has jurisdiction is erroneous in law inasmuch as the agreement did not contain any clause regarding the place from where the bank guarantee had to be furnished. Learned counsel has submitted that there was only a requirement for furnishing the bank guarantee and that it could be furnished from anywhere in India and since in the present case the bank guarantee was furnished by the respondent from a bank at Hyderabad it was encashed there and therefore the said fact was wholly irrelevant for deciding the plea of jurisdiction. He has also relied upon a decision of this Court in South East Asia Shipping Co. Ltd. vs. Nav Bharat Enterprises Pvt. Ltd.3 SCC 443 in support of his contention that the submission of the bank guarantee from Hyderabad or the encashment thereof does not constitute even a part of cause of action to confer jurisdiction on the court at Hyderabad. Though we find substance in the contention raised by the learned counsel for the appellant but in view of our finding recorded on the main point we do not consider it necessary to express any final opinion on the second contention. 13. For the reasons discussed above the appeal is allowed with costs throughout. The judgment and order dated 9.9.2005 of the High Court of Andhra Pradesh and the judgment and order dated 27.12.2004 of the City Civil Court Hyderabad appointing an arbitrator are set aside. It will be open to the parties to get the dispute decided by arbitration in accordance with the Rules of Arbitration of the Indian Council of Arbitration

Extension of benefit of regularization incorrectly to any employee would not entitle the other employees to the same benefit: High Court of J&K and Ladakh

Extension of benefit of regularization incorrectly to any employee would not entitle the petitioner-appellant to the same benefit until and unless the petitioner-appellant is able to make out a case for regularization in terms of J&K Daily Rated Workers Employees (Regularization) Rules, 1994(SRO 64 of 1994) as held by the Hon’ble High Court of J&K through a learned bench of The Chief Justice and Justice Vinod Chatterji Koul in the case of Bashir Ahmad Dar Vs State of JK & Ors [LPAOW No. 123/2018]. The brief facts of the case were that the petitioner was allegedly appointed as a daily-wager in the Agriculture Department sometime in the year 1986. On completion of seven years of continuous service, he claimed regularization in terms of SRO 64 of 1994. Since his case was not considered for regularization, he preferred SWP No. 624/1995, but the said writ petition was disposed of with the direction to the respondent to consider the case of the petitioner. In pursuance to the above direction, the case of the petitioner was rejected vide order dated and petitioner challenged the above rejection order by filing SWP No. 297/2002 which came to be disposed of with the direction to the respondent to reconsider the case of the petitioner. Since as per the above direction, the case of the petitioner-appellant was not considered afresh, the petitioner initiated proceedings for contempt by filing a contempt and the contempt proceedings were closed on 12th March 2009 giving liberty to the petitioner to challenge the aforesaid consideration order. The respondent department reconsidered the matter and refused to regularize the services of the petitioner-appellant on the ground that he is not eligible for regularization under the aforesaid SRO 64 of 1994. The submission of learned counsel for the petitioner-appellant is that the learned Single Judge manifestly erred in law in dismissing the writ petition when similar other petitions were allowed, the petitioner was entitled to the same benefit as was extended to other employees and, as such, the court erred in relegating the petitioner to file civil suit as the matter involves disputed questions of law. After a perusal of the facts on the record, the Hon’ble High Court was of the view that “all findings of fact and the learned Single Judge is right in observing that the writ court cannot go into those fact-finding mission so as to verify their veracity or the genuineness by making a roving enquiry. The argument that few other employees have been extended the benefit of regularization is completely misconceived inasmuch as they may be similarly situated, but their regularization appears to have been ordered on being satisfied that they have completed seven years of continuous service which fact is lacking in the present case. The department upon verification of the aforesaid fact alone ordered for their regularization pursuant to the direction of the court. Moreover, extension of benefit of regularization incorrectly to any employee would not entitle the petitioner-appellant to the same benefit until and unless the petitioner-appellant is able to make out a case for regularization in terms of SRO 64 of 1994.”

IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH AT SRINAGAR LPAOW No. 123 2018 Reserved on 30.09.2021 Decided on 28.10.2021 Bashir Ahmad Dar Through: Mr Syed Manzoor Adv. State of JK & Ors. Through: Ms. Asifa Padroo AAG CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MR JUSTICE VINOD CHATTERJI KOUL JUDGE JUDGMENT PANKAJ MITHAL CJ Ors. Under challenge in this Letters Patent Appeal is the judgment and order dated 22nd November 2018 passed by the learned Single Judge dismissing SWP No. 657 2018 Bashir Ahmad Dar vs. State of JK & The petitioner appellant in the aforesaid writ petition claimed regularization of his services in terms of SRO 694 and to accord him the same treatment as was given to one Ali Mohammad Bhat vide order dated 10th August 2012. At the same time he prayed for the quashing of the order dated 12th February 2018 by which his claim for regularization as aforesaid was rejected. The writ court in dismissing the petition held that in exercise of writ jurisdiction the court cannot enter into any fact finding mission so as to ascertain the disputed questions regarding continuous discharge of duties by the petitioner appellant for a continuous period of seven years which is one of the conditions for regularization in terms of SRO 64 of 1994. LPAOW No. 123 2018 The facts as revealed are that the petitioner appellant was allegedly appointed as a daily wager in the Agriculture Sericulture Development Department sometime in the year 1986. On completion of seven years of continuous service he claimed regularization in terms of SRO 64 of 1994. Since his case was not considered for regularization he preferred SWP No. 624 1995 but the said writ petition was disposed of on 12th February 1996 with the direction to the respondent department to consider the case of the petitioner appellant for regularization. In pursuance to the above direction the case of the petitioner appellant for regularization was considered by the department and it was rejected vide order dated 24th August 1998. The petitioner appellant challenged the above rejection order by filing SWP No. 297 2002 which came to be disposed of vide order dated 7th April 2008 with the direction to the respondent department to reconsider the case of the petitioner appellant for regularization afresh. Since as per the above direction the case of the petitioner appellant was not considered afresh the petitioner appellant initiated proceedings for contempt by filing a contempt petition No. 311 2008 wherein the respondents had produced the consideration order dated 25th October 2008 rejecting the claim of the petitioner appellant. Accordingly the contempt proceedings were closed on 12th March 2009 giving liberty to the petitioner to challenge the aforesaid consideration order. The petitioner appellant accordingly filed SWP No. 1883 2009 challenging the order dated 25th October 2008 whereby his claim had been rejected. The aforesaid petition was disposed of vide order dated 4th April 2016 with the direction to the respondents to extend the benefit of the judgment and order dated 17th March 2016 passed in SWP No. 519 2016 to the petitioner appellant also provided he is similarly circumstanced with the petitioner of the said writ petition. Since again no consideration was accorded as directed petitioner appellant initiated fresh contempt proceedings No. 491 2016 wherein LPAOW No. 123 2018 the consideration order dated 8th October 2016 was produced rejecting the claim of the petitioner appellant. 10. Aggrieved by the aforesaid order dated 8th October 2016 the petitioner appellant filed SWP No. 1711 2016 which upon consideration was disposed of on 10th August 2018 with the direction to the respondents to consider the case of the petitioner appellant afresh after examining the entire records as to whether the petitioner appellant has completed seven years of continuous service or not. In pursuance of the above directions of this Court the respondent department reconsidered the matter and vide order dated 12th February 2018 refused to regularize the services of the petitioner appellant on the ground that he is not eligible for regularization under the aforesaid SRO 694. 12. The submission of learned counsel for the petitioner appellant is that the learned Single Judge manifestly erred in law in dismissing the writ petition when similar other petitions were allowed the petitioner appellant was entitled to the same benefit as was extended to other employees and as such the court erred in relegating the petitioner appellant to file civil suit as the matter involves disputed questions of law. 13. A perusal of the order dated 12th February 2018 which was impugned in the writ petition reveals that the Director of Sericulture Development Department J&K has considered the entire facts and circumstances of the case pertaining to the petitioner appellant and by a detailed and comprehensive order has refused to regularize the services of the petitioner. The averments made in the said order also reveals that the Director Sericulture Development Department had even constituted a committee to find out the correctness of the facts and the said committee had even examined the ex officers of the department so as to ascertain the truth. It was upon undertaking of the above exercise of in depth enquiry it was concluded that the engagement of the petitioner appellant is in contravention of the records available there is no evidence on recording of any certificate alleged to have been issued to LPAOW No. 123 2018 the petitioner appellant and that the documents relied upon by the petitioner appellant appears to be manipulated. The order further records that on the basis of the records available with the department the status of the petitioner appellant is that of a casual labourer who is not entitled to benefit of any regularization under SRO 694. 14. The aforesaid SRO obliges regularization of only daily rated workers work charged employees provided inter alia he has completed seven years of continuous service as a daily rated worker work charged employees. The petitioner appellant has failed to substantiate that he has seven years of continuous service at his back and as such does not fulfill the minimum eligibility criteria. 15. The aforesaid findings returned by the Director are all findings of fact and the learned Single Judge is right in observing that the writ court cannot go into those fact finding mission so as to verify their veracity or the genuineness by making a roving enquiry. The argument that few other employees have been extended the benefit of regularization is completely misconceived inasmuch as they may be similarly situated but their regularization appears to have been ordered on being satisfied that they have completed seven years of continuous service which fact is lacking in the present case. The department upon verification of the aforesaid fact alone ordered for their regularization pursuant to the direction of the court. Moreover extension of benefit of regularization incorrectly to any employee would not entitle the petitioner appellant to the same benefit until and unless the petitioner appellant is able to make out a case for regularization in terms of SRO 694. 16. The aforesaid SRO 64 of 1994 promulgates J&K Daily Rated Workers Work Charged Employees Rules 1994 which have been framed in exercise of powers under Section 124 of the then Constitution of Jammu and Kashmir. The said rules vide Rule 4 provides for the eligibility for regularization. It categorically lays down that a daily rated worker work charged employee shall be eligible for regularization on fulfilment of certain conditions one of which happens to be that the person must have completed seven years continuous LPAOW No. 123 2018 period of work as daily rated worker work charged employee. Rule 4 of the aforesaid Rules is reproduced herein below: “4. Eligibility for regularization. A Daily Rated Workers Work Charged Employee shall be eligible for regularization on fulfilment of the following conditions namely: a) that he is a permanent resident of the State b) that on the date of his initial appointment his age was within the minimum and maximum age limit as prescribed for appointment in Government Service c) that he possesses the prescribed academic and or technical qualification for the post against which he is required to be regularized: Provided that in case of eligible Daily Rated Workers to be regularized against Class relaxation of qualification and or age shall be considered on merits by the concerned Administrative Department IV posts d) that he is not retiree from any State or Central Government service or any Local Body Public Sector Undertaking or Autonomous Body in or outside the State e) that his work and conduct has remained satisfactory during the period he worked as Daily Rated Worker or Work charge Employee and no disciplinary proceedings are pending against him and f) that he has completed seven years continuous period of working as Daily Rated Worker or Work charged Employee or partly as Daily Rated Worker and partly as Work charged Employee.” In view of the aforesaid provisions for the purposes of regularization for our purposes two conditions are essential i.e. a person seeking regularization must be a daily rated worker work charged employee and that he has completed seven years of continuous period of work as daily rated worker or work charged employee. 18. The definition clause of the aforesaid rules defines daily rated worker work charged employee as well as the continuous working. It has been held repeatedly by this Court that SRO 694 does not apply to casual labour workers or seasonal labour workers inasmuch as there is a difference between the daily rated worker work charged employee and casual workers as defined under the Rules. It has also been held in several decisions that break in service upto two days in a period of 90 calendar days would not affect the continuous working LPAOW No. 123 2018 but the break of long terms for weeks and months would disrupt the continuous service. The petitioner appellant in the entire writ petition filed before the courthas not uttered a single word alleging that he has uninterrupted continuous seven years of continuous service to his credit as a daily rated worker work charged employee. He has not even brought on record any material document to substantiate his claim to the above effect. Thus in the absence of any pleadings or the material to establish that the petitioner appellant was eligible for regularization we are of the opinion that the writ court has not committed any error in dismissing the writ petition. 19. On the request of the counsel for the petitioner appellant we have also directed the learned counsel for the respondents to produce the service record of the petitioner appellant to establish if there were breaks in his service. 20. we have perused the record. It contains the monthly attendance sheet of the petitioner appellant as Casual Seasonal Labourer from 1986 onwards prepared under the signatures of Deputy Director Sericulture Development Department Budgam. In the said chart petitioner appellant has been shown as having working for the month of January 1987 and thereafter in the month of March onwards but with a complete break in the month of February 1987. In the year 1988 he has not worked for the full month of August. Again in the year 1991 he has not worked in the month of March April May June and December. In 1983 he has not worked in the month of January to August November and December so on and so forth. 21. A glance at the above chart clearly reveals that there are enough breaks in service of the petitioner appellant in almost all the years and he has not worked for months together. In this view of the matter the findings that the petitioner appellant has not put in seven years of continuous service is not against the record or incorrect. It may not be out of context to mention here that in these matters of regularization of services based upon factual aspects it is not always LPAOW No. 123 2018 possible for the writ court to verify the factual aspects on the basis of the record produced or the documents on record. Moreover when repeatedly a consideration has been accorded in the matter of regularization by the authorities and every time the claim has been rejected on the factual aspects the court cannot permit the person to keep invoking the extraordinary jurisdiction of the court pleading for justice and in such circumstances it is always better that the recourse to the appropriate forum be allowed to be taken so that the parties may lead evidence on the disputed aspects of the facts and get the matter adjudicated upon. The repeated filing of successive writ petitions virtually for the same cause of action in seeking regularization after rejection of their claim by the authorities time and again is more or less the abuse of the process of law and in these circumstances the writ court may be justified in refusing to exercise discretionary powers. 23. Thus in the overall facts and circumstances of the case we do not find it to be a fit case for interfering with the decision of the learned Single Judge. 24. The appeal lacks merit and is accordingly dismissed. 25. Record is returned to Ms. Asifa Padroo learned AAG in the open court. JUDGE CHIEF JUSTICE SRINAGAR 28.10.2021 Altaf Whether the order is reportable LPAOW No. 123 2018

The accused can be granted bail only if evidence which has come on record overwhelmingly point towards non-involvement of accused in the case: High Court of Jammu and Kashmir and Ladakh

Merely because sentence provided under Section 304-B RPC is seven years and extended up to life imprisonment, it cannot be said that the offence under this section do not have that seriousness which is attracted in case of murder and other heinous offences; these are the sensitive cases which deal with institution of marriage and should be dealt with utmost care and caution and it is not like that there is any bar in granting of bail in such like cases as upheld by the High Court of Jammu and Kashmir and Ladakh through the learned bench led by Justice Vinod Chatterji Koul in the case of Manmeet Singh v. Union Territory of Jammu and Kashmir (Bail App no.98/2020). The brief facts of the case are that  on 28.06.2018, police station Sadder, Srinagar, received an information through reliable source that Pooja W/o Manmeet Singh, Srinagar, has ended her life by hanging herself at her residence. During inquest proceedings, postmortem of deceased was got conducted through a team of Medical Experts and various samples drawn during postmortem were forwarded to Director, FSL, Srinagar and HOD, Department of Pathology, GMC, Srinagar, for report/ expert opinion. During investigation, it is also stated by respondent, it came to surface that deceased was married petitioner and had a son out of the said wedlock and that family of deceased was not financially sound and the in-laws, which included husband, mother-in-law, father-in-law, and wife of brother-in-law used to mentally harass deceased for not being able to fulfil dowry demands, which seems to be circumstances under which death of deceased took place. Accordingly, FIR under Section 304-B, 498-A RPC was registered in police station Sadder, Srinagar and investigation was taken up. The statements of witnesses were recorded and offences were established against petitioner/applicant and others. The accused presons were arrested and charge sheet was produced before the court. Learned counsel appearing for applicant has stated that allegations made and levelled against petitioner/applicant are false, frivolous and without any basis. The Hon’ble High Court held, “Since in the present case, the trial is in progress and if any finding or view is made by this Court while taking into account the statements of the witnesses or for that matter any finding on their credibility and evidential value at the stage of granting or refusing bail, it would seriously prejudice the prosecution case. The allegations against accused are serious and same cannot be determined that the allegations levelled against accused are either false or true and there is every chance that if applicant is enlarged on bail, he may influence the witnesses as he is facing trial for commission of offence, which is punishable with death or imprisonment for life. For the foregoing reasons, this is not a fit case for grant of bail. Bail application/petition along with connected CM(s) is, accordingly, dismissed.”

HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Bail App no.98 2020 Manmeet Singh Union Territory of Jammu and Kashmir Reserved on: 16.08.2021 Pronounced on: 24.09.2021 Through: Mr. Mushtaq Ahmad Dar Advocate . Petitioner(s) Through: Mr. Asif Maqbool Dy. AG CORAM: HON’BLE MR JUSTICE VINOD CHATTERJI KOUL JUDGE 1. Petitioner in this petition application moved under Section 439 of the Code of Criminal Procedure 1973 read with Section 482 Cr.P.C. and 435 Cr.P.C. seeks quashment of the Order dated 18.09.2020 passed by 4th Additional Sessions Judge Srinagarin an application for grant of bail. He also prays for grant of bail. 2. As is gatherable from perusal of lengthy application comprising of 78 pages applications for grant of bail had been earlier made by applicant before the court below but he failed. 3. Response status report has been filed by respondent. 4. I have heard learned counsel for parties and considered the matter. I have gone through the record. 5. Learned counsel appearing for applicant has stated that allegations made and levelled against petitioner applicant are false frivolous and without any basis. He has submitted all what is mentioned in the instant application and has cited judgements reproduced application which need not be reiterated again so as to save the precious time and avoid unnecessary lengthiness. Bail App no.98 2020 2 6. The prosecution story as stated by respondent in Response Status Report is that on 28.06.2018 at about 15:40 hours police station Sadder Srinagar received an information through reliable source that one Pooja W o Manmeet Singh R o Mehjoor Nagar Srinagar has ended her life by hanging herself at her residence. On receipt of the information a report No.23 was entered in the Daily Dairy of police station Sadder Srinagar and inquest proceedings were initiated in the matter. During inquest proceedings postmortem of deceased was got conducted through a team of Medical Experts on 29.09.2018 and various samples drawn during postmortem were forwarded to Director FSL Srinagar and HOD Department of Pathology GMC Srinagar for report expert opinion. During investigation it is also stated by respondent it came to surface that deceased was married petitioner and had a son out of the said wedlock and that family of deceased was not financially sound and the in laws which included husband mother in law father in law and wife of brother in law used to mentally harass deceased for not being able to fulfil dowry demands which seems to be circumstances under which death of deceased took place. Accordingly FIR no.104 2018 under Section 304 B 498 A RPC was registered in police station Sadder Srinagar and investigation was taken up. The statements of witnesses were recorded and offences were established against petitioner applicant and others. The accused presons were arrested and charge sheet was produced before the court on 04.09.2018. 7. The order impugned on its perusal reveals that it has been passed by the Trial Court after making comprehensive discussion. The Trial Court has rightly said that merely because sentence provided under Section 304 B RPC is seven years and extended up to life imprisonment it cannot be said that the offence under this section do not have that seriousness which is attracted in case of murder and other heinous offences these are the sensitive cases which deal with institution of marriage and should be dealt with utmost care and caution and it is not like that there is any bar in granting of bail in such like cases but the accused can be granted bail only if evidence which has come on record overwhelmingly point towards non involvement of accused in the case. The Trial Court has also said that after going through the evidence Bail App no.98 2020 3 particularly statements of parents and sisters it was felt that applicant is not entitled to bail. 8. Perusal of the instant application reveals that statements of witnesses have been unnecessarily reproduced. Learned counsel for applicant has also unnecessarily reproduced various judgements making the present application verbose. 9. The statements of witnesses reproduced and discussed in the instant application do not serve any purpose and do not render any help to the case of applicant as this Court while considering and deciding the bail application cannot discuss the veracity or substance of the statements of the witnesses. The judgements reproduced by learned counsel for applicant in the instant application can very well be considered at the final stage of the trial and not when an application for grant of bail is considered. 10. While considering the application for bail it is necessary to take into consideration first whether the accused would take up the trial without hampering it and secondly whether he would subject himself to the verdict of the Court. The Court must also consider other factors such as the serious nature of the crime and the gravity of the circumstances under which such an offence is alleged to have been committed position and status of the accused with reference of the victim and witnesses of repeating the offences of jeopardizing his own life and other relevant grounds. 11. One of the main considerations in granting bail would be as to whether on the basis of evidence and the documents on which prosecution relies it can be said that there are grounds to believe that the accused is involved in offence punishable with death or imprisonment for life and if there are reasonable grounds on which the accused are likely to be charged of murder then the question of grant of bail would not arise. In the present case applicant is facing trial for commission of offence punishable under Section 304 B RPC. From perusal of the record on the file as also application no definite view can be made that there are reasonable grounds to believe that applicant is not guilty of alleged offences and no doubt applicant is facing trial for last five years but it is also a fact that he is facing trial for commission of offence of murder. 12. The considerations which normally weigh with the court in granting bail have been explained by the Supreme Court in State vs. Capt. Jagjit Bail App no.98 2020 4 Singh AIR 1962 SC 253 and Gurcharan Singh vs. State (1978) 1 SCC 118 which are: the nature and seriousness of the offence the character of 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. The Supreme Court again in Prasad Shrikant Purohit vs. State of Maharashtra 11 SCC 458 has “21) 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. 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. 22) Before concluding we must note that though an accused has a right to make successive applications for grant of bail the court entertaining such subsequent bail applications has a duty to consider the reasons and grounds on which the earlier bail applications were rejected. In such cases the court also has a duty to record the fresh grounds which persuade it to take a view different from the one taken in the earlier 23) 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.” 13. In the above case the Supreme Court has held that the Court granting bail should exercise its discretion in a judicious manner and not as a matter of course and a detailed examination of evidence and elaborate documentation of the merits of the case has not to be undertaken inasmuch as grant or refusal of bail lies within the discretion of the court. Bail App no.98 2020 5 It is well settled law that the court should refrain from appreciating the evidence while considering the bail application. 14. When the application in hand is taken for consideration it contains the statements of witnesses which according to counsel for applicant have been reproduced so that this Court would appreciate the same while considering the application for bail. It is made clear here that the nature and gravity of the offence and its impact on the democratic fabric of the society is to be considered and there should not be observations and findings on the credibility and the evidential value of the witnesses at the stage of considering application for grant of bail. In the event any observation and finding are made about the statements of witnesses reproduced by applicant in the application in hand same would virtually amount to discussing the whole case which is subject matter of final stage of the trial. 15. Since in the present case the trial is in progress and if any finding or view is made by this Court while taking into account the statements of the witnesses or for that matter any finding on their credibility and evidential value at the stage of granting or refusing bail it would seriously prejudice the prosecution case. The allegations against accused are serious and same cannot be determined that the allegations levelled against accused are either false or true and there is every chance that if applicant is enlarged on bail he may influence the witnesses as he is facing trial for commission of offence which is punishable with death or imprisonment for life. Reference in this regard is made to Kalyan Chandra Sarkar vs. Rajesh Ranjan @ Pappu Yadav and anr. 7 SCC 528 State of U.P. through CBI vs. Amarmani Tripathi 8 SCC 21 Prahlad Singh Bhati vs. NCT Delhi and anr 4 SCC 280 Ram Govind Upadhyay vs. Sudarshan Singh and ors. 3 SCC 598 State of Maharashtra vs. Ritesh 4 SCC 224 Panchanan Mishra vs. Digambar Mishra and ors. 3 SCC 143 Vijay Kumar vs. Narendrea and ors 9 SCC 364 Anwari Begum vs. Sher Mohammad and anr. 7 SCC 326 Prasanta Kumar Sarkar vs. Ashish Chatterjee and ors. 14 SCC 496 and Ravindersingh vs. State of Gujarat12 SCC 446. 16. In the above backdrop the judgements relied upon by learned counsel for applicant do not help to the case of applicant as being Bail App no.98 2020 6 distinguishable in facts and circumstances of the present case. Resultantly order impugned does not warrant any interference. 17. For the foregoing reasons this is not a fit case for grant of bail. Bail application petition along with connected CM(s) is accordingly dismissed. 18. Needless to say that the expression of any opinion by this Court in the present case will not be treated as an expression on merits of the case. Vinod Chatterji Koul) Judge ‘Qazi Amjad Secy’ Whether approved for reporting Yes No Bail App no.98 2020

Liberal approach in the matter of bail under the NDPS Act is uncalled for: High Court of Delhi

The purpose of enacting the NDPS Act was to curb the menace, and this purpose must be borne in mind while considering the grant of bail pertaining to the NDPS Act. For granting the bail the Court must be satisfied that that the accused is not guilty of the offences with which he is charged and further that he is not likely to commit any offence while on bail. Liberal approach in the matter of bail under the Act is uncalled for and the same was upheld by High Court of Delhi through the learned bench led by Justice Subramonium Prasad in the case of PRIYARANJAN SHARMA vs. STATE OF NCT OF DELHI [BAIL APPLN. 3424/2021] on 08.02.2022. The facts of the case are that information was received that a large quantity of Charas from Malana and that the substance would be handed over to Ranjan at the Bus Stop at Vande MataramMarg, New Delhi. The said information was recorded in writing and was produced before Inspector. In turn, a raid was conducted. In the possession of the co-accused, a black bag was recovered wherein two bundles of a sticky and smelly black substance was found wrapped in plastic. It is stated that after testing, it was confirmed that the substance was Charas. After collecting sufficient material and based on the inquiries, the petitioner and co-accused were formally arrested and a report under Section 57 of the NDPS Act was made. The present petition is filed seeking regular bail for offences under the NDPS Act. The petitioner’s counsel contended that there was no recovery of the contraband from the petitioner. It was further contended that there was non-compliance of Section 42 and Section 50 of the NDPS Act and the search and seizure was not conducted in front of the Gazetted Officer. The respondent’s counsel stated that the information was received from co-accused that accused would be bringing contraband from Himachal Pradesh, therefore, a raiding party was constituted after taking authorisation of the higher officials and in compliance of Section 42 of the NDPS Act. It was further contended that a bail should not be granted as the substance was confirmed as Charas by the Forensic Science Laboratory and the investigation is going on but accused is absconding. According to facts and circumstances, the Court dismissed the petition as the petitioner was not able to satisfy that he is not guilty of offence and the fact that he was a member of the cartel gives a strong apprehension that he is likely to commit such an offence in the future as well. The Court observed that “the purpose of enacting the NDPS Act was to curb this menace, and this purpose must be borne in mind while considering the grant of bail pertaining to the NDPS Act. For granting the bail the Court must be satisfied that the accused is not guilty of the offences with which he is charged and further that he is not likely to commit any offence while on bail. Clause (b) (1) of Section 37 are in addition to the limitations provided under the Code of Criminal Procedure or any other law for the time being in force regulating the grant of bail. Liberal approach in the matter of bail under the Act is uncalled for.” Click here to read the Judgment

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 08th FEBRUARY 2022 IN THE MATTER OF: BAIL APPLN. 3424 2021 PRIYARANJAN SHARMA STATE OF NCT OF DELHI ..... Petitioner Through Mr. Amit Chaturvedi Mr. Sumit Kumar Shukla Ms. Radha R Tarkar Advocates ..... Respondent Through Mr. Amit Chadha APP for the State with SI Arvind Kumar and SI S.B. Saran PS Crime Branch. HON BLE MR. JUSTICE SUBRAMONIUM PRASAD SUBRAMONIUM PRASAD J. The present petition is filed under Section 439 Cr.P.C. seeking regular bail in FIR No.311 2019 dated 16.10.2019 registered at Police Station Crime Branch Shakarpur for offences under Section 20 29 of the NDPS Act. The facts in brief leading to the present FIR are as follows: Information was received at 8:30 AM on 16.10.2019 from a special informer to SI Arvind Kumar that one Chhering Charang R o Jari Himachal Pradesh was sending a large quantity of Charas from Malana and that the substance would be handed over to one Ranjan at the Bus Stop at Vande MataramMarg New Delhi. The said information was recorded in writing and was produced before Inspector Shiv Darshan along with the secret informer. BAIL APPLN. 3424 2021 After reaching the spot the police team took their position near In turn this was communicated telephonically to ACP Arvind Kumar who gave permission to conduct raid and apprehend persons involved. The said information was recorded by SI Arvind Kumar vide DD No.5 at 9:00 AM and a raiding team headed by SI Arvind Kumar consisting of H C Ramdas H C Lal Bahadur Constable Kapil Nagar was formed and left for the site at 9:30 AM in a private car bearing registration No.UP 16 AK 0244 and driven by Constable Devender. On the way the team stopped at ITO and requested 5 6 people to join the raiding team but could not get any civilian for proceeding with the raid. the bus stop and SI Arvind Kumar was in the car alongwith Constable Devender. At 10:40 AM one boy with a black coloured bag in his hand was seen near the bus stand near the roundabout of Shankar Road and was identified as Suraj by the secret informer and within a few minutes a Skoda car bearing registration No. HR 26 EA 4171 was seen approaching from Dhaula Kuan towards the Bus Stand and stopped there. The occupant of the car signalled the man with the black bag i.e. Suraj to sit inside the car. After a few moments the SI and the team gheraoed the car. SI Arvind Kumar introduced himself and told them the information regarding possession and sale of Charas by them. It is stated that the accused were identified as Suraj S o Chhering @Charang R o H.No.127 Ward No.7 Sishamati Kullu Himachal Pradesh and the ptitioenr herein BAIL APPLN. 3424 2021 It is stated that the searches were conducted in the presence of Priyaranjan Sharma S o Madan Mohan Sharma R o Extn. Road No.1 Rajbanshi Nagar Patna Bihar. It is stated that the SI Arvind Kumar intimated them that he had to search them to see if they possessed illegal contraband and informed them their right to deny search by the SI Arvind Kumar and be searched in the presence of a Magistrate or Gazetted Officer. A formal notice under Section 50 of the NDPS Act was served on the petitioner and co accused Suraj intimating to them their legal rights. It is stated that the petitioner and co accused refused to be frisked before a Gazetted Officer. It is stated that the SI attempted to gather passersby to join the search proceedings but could not convince the bystanders. SI Arvind Kumar. Both the petitioner herein and co accused Suraj were searched and checked. In the possession of the co accused Suraj a black bag having three compartments was recovered wherein two bundles of a sticky and smelly black substance was found wrapped in plastic and covered by Khaki cloth. The substance was taken out of the wrapping from the bag and a small sample was weighed and tested. It is stated that after testing it was confirmed that the substance was Charas. The substance was marked and 25 25 gms. from each bundle were separated for sending it to a chemical laboratory FSL for testing and the rest of the substance was seized by preparing seizure memos. It is stated that the petitioner herein was checked thereafter and BAIL APPLN. 3424 2021 no substance was found in his possession and a separate recovery memo was prepared in respect of the petitioner. The petitioner and co accused Suraj were taken in custody. The Skoda car bearing No. HR 26 EA 4171 was taken into custody vide a separate seizure memo. It is stated that the recovered items were seized and remanded to police custody. The case was then handed over to the present I.O. namely ASI Mahesh Kumar. The I.O. along with SI Arvind Kumar on the same day revisited the scene of crime at around 4:30 PM made inquiries from SI Arvind Kumar and prepared a site map whereafter the statement of HC Lal Bahadur under Section 161 Cr.P.C. After collecting sufficient material and based on the inquiries the petitioner and co accused were formally arrested and a report under Section 57 of the NDPS Act was made. During investigation the belongings and mobile phones of the accused were recovered from their possession. It is stated that co accused Suraj gave a disclosure statement that his father was engaged in the supply and sale of Charas and due to which he doesn t reside at one single place and keeps moving. He further disclosed that his father sources the Charas from village Malana in Himachal Pradesh and sends it into cities like Delhi Gurgaon. He disclosed that sometimes he would send his relatives with a supply of the contraband and sometimes he would himself transport the contraband. He disclosed that his father sent him this time with two packets each five kilograms to deliver in Delhi one packet to the petitioner herein and the BAIL APPLN. 3424 2021 other packet to another person whose contact number was given to him by his father. At the time of investigation the CDR and CAP records of the mobile phones of the accused were obtained. The mobile number used by the petitioner was found to be registered in his own name and the mobile phone used by co accused Suraj was registered in the name of Babloo R o Bambola Mandi Himachal Pradesh. The CDRs denoted that on 15 16.10.2019 co accused Suraj and petitioner herein were in touch with co accused Chhering @Charang who has not been arrested till date and proceedings under Section 82 Cr.P.C. got initiated against The FSL Rohini vide RC 800 2021 dated 18.10.2019 committed its report to the Crime Branch confirming after chemical analyses that the substances seized at the scene of crime was Charas. The Skoda car bearing No. HR 26 EA 4171 from where the petitioner apprehended was owned and registered in the name of Chitranjan Sharma brother of the petitioner herein and was released on superdari by the Trial Court in his favour on an Chargesheet dated 01.04.2020 was filed before the Trial Court on 09.04.2020. It is stated therein that no recovery of Charas was made qua the present petitioner. The petitioner s bail application was rejected by the learned Sessions Court vide order dated 26.07.2021 stating that the petitioner was present in BAIL APPLN. 3424 2021 the car from where the contraband of a commercial quantity was seized and that the case was at an initial stage where charges were yet to be framed and the Trial to commence. It was stated that Section 37 of the NDPS created an embargo because of which the petitioner could not be enlarged on bail and on the mere reason that the CDRs of the raiding team were not aligned with the prosecution s case was not a reason to disbelieve the prosecution. Heard Mr. Amit Chaturvedi learned counsel for the petitioner and Mr. Amit Chadha learned APP for the State and perused the material on 5. Mr. Amit Chaturvedi learned counsel for the petitioner contends that there is no recovery of the contraband from the petitioner. He states that the petitioner is alleged to be arrested at Vande Mataram Marg which is a busy main road and there is no independent witness which casts a serious doubt on the veracity of the story of the prosecution. He further states that according to the case of the prosecution the petitioner was waiting near a bus stand but the said road does not have any bus stand. It is further contended that there is non compliance of Section 42 and Section 50 of the NDPS Act and the search and seizure was not conducted in front of the Gazetted Officer. It is the story of the prosecution that the search was conducted in front of ACP Arvind Kumar who had granted permission to the team lead by SI Arvind Kumar to conduct a raid cannot be believed. He states that the chargesheet fails to show how the officer who authorised the raid suddenly appeared at the spot when he was not accompanying the team. It is submitted that except the fact that the petitioner and the co accused had given a telephone call to co accused Chhering @Charang a day prior to the incident nothing has been found on the analysis of the CDR of the BAIL APPLN. 3424 2021 petitioner. An argument was raised by the co accused Suraj in BAIL APPLN. 1847 2021 which was withdrawn on 18.01.2022 that the call detail records of the I.O. would show that he was not at the spot when the raid was Per contra Mr. Amit Chadha learned APP states that information was received that co accused would be bringing contraband from Himachal Pradesh a raiding party was constituted after taking authorisation of the higher officials and in compliance of Section 42 of the NDPS Act and the raiding party left for the spot. He states that at 10:40 AM co accused Suraj was seen coming with a black colour bag who was identified by the The Skoda car bearing No. HR 26 EA 4171 was seen approaching from Dhaula Kuan to the bus stand and co accused Suraj was there. Suraj sat in the car and at that point of time the car was surrounded. The petitioner and the co accused were searched and checked. The black colour bag being carried by Suraj contained 10 kilograms of Charas which is a commercial quantity under the NDPS Act. It is further submitted that the CDR of the accused persons would they were communication with each other on the day of the incident and a day prior to the incident as well as the fact that the petitioner and the co accused contacted Chhering @Charang who is the kingpin of the drug cartel. It is contended that the substance has been confirmed as Charas by the Forensic Science Laboratory. Mr. Amit Chadha learned APP contends that the investigation is going on as one of the accused Chhering @Charang who is the kingpin is absconding. A perusal of the records indicates that a secret informer gave information on 16.10.2019 that a person named Chhering @Charang was BAIL APPLN. 3424 2021 indulging in supply of Charas after collecting the same from Malana Himachal Pradesh and supplied the drugs through his son and co accused Suraj. The information was given by the secret informer that on 16.10.2019 Suraj would come to supply Charas to one Ranjan at the Bus Stop at Vande Mataram Marg at 10:40 AM. Compliance under Section 42 of the NDPS Act was done and a trap was laid. The fact that independent witnesses have not been involved cannot discredit the case of the prosecution which has been held by several judgments that non joining of independent witnesses cannot discredit the entire case of the prosecutionSCC 563 and Jarnail Singh v. State of Punjab 2011SCC 521). The petitioner and the co accused Suraj were informed about their rights under Section 50 of the NDPS Act. It is stated in the Status Report that in the meantime ACP Arvind Kumar who authorised the raid came to the spot and introduced himself. During the search 10 kilograms of Charas were recovered from the bag which was in possession of Suraj. Suraj was present with the petitioner when both were apprehended by the Police. The fact that no contraband was recovered from the body of the petitioner is of no consequence especially when Suraj was waiting with the contraband. The petitioner arrived in a car bearing No. HR 26 EA 4171 which belonged to his brother. He got down from the car and while walking towards the car both were arrested and the 10 kilograms for the contraband was recovered from the car. 9. Material on record also indicates that the petitioner was using a mobile phone No. 9999777134 and he was in touch with Chhering Charang on 15 16.10.2019. The contention of the co accused Suraj in BAIL APPLN. 3424 2021 BAIL APPLN.1847 2021 that the CDR of the investigating officer reveals that he was at different spots when the raid was conducted and therefore the story of the prosecution indicating the manner in which the raid was conducted cannot be accepted for the reason that the area where the petitioner was arrested is surrounded by the ridge and there are various towers within the distance of 750 metres where the petitioner was arrested. Therefore the possibility of various towers catching signal of the mobile phone cannot be ruled out. 10. The question as to whether there was a bus stop or not where the petitioner was arrested is a matter of trial. Nothing has been produced by the petitioner to demonstrate that there was no bus stop at the time when the petitioner was arrested. 11. Grant or refusal of bail in a case involving commercial quantity of contraband substances under the NDPS Act is governed by Section 37 of the NDPS Act. The same is reproduced as under: 37. Offences to be cognizable and non bailable. Notwithstanding anything contained in the Code of Criminal Procedure 1973a) every offence punishable under this Act shall be cognizable no person accused of an offence punishable for shall be released on bail or on his own bond unless— BAIL APPLN. 3424 2021 the Public Prosecutor has been given an opportunity to oppose the application for such release and 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 offence and that he is not likely to commit any offence while on bail. of sub section are in addition to the limitations under the Code of Criminal Procedure 1973or any other law for the time being in force on granting of bail.]" The parameters for grant of bail to an accused have been laid down in a number of judgements of the Supreme Court. In State of M.P. v. Kojad 2001) 7 SCC 673 embarked to elucidate as to why bail conditions under the NDPS are stringent to the extent of being severe & uncompromising it held as follows: “5.….The purpose for which the Act was enacted and the menace of drug trafficking which it intends to curtail is evident from its scheme. A perusal of Section 37 of the Act leaves no doubt in the mind of the Court that a person accused of an offence punishable for a term of imprisonment of 5 years or more shall generally be not released on bail. Negation of Bail is the rule and its grant an exception under sub clause ii) of clause of Section 37(1). For granting the bail the Court must on the basis of the record produced before it be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offences with which he is charged and further that he is not likely to commit any offence BAIL APPLN. 3424 2021 13. The Supreme Court in Collector of Customs v. Ahmadalieva Nodira 2004) 3 SCC 549 has observed as under: while on bail. It has further to be noticed that the conditions for granting the bail specified in clause b) of sub section(1) of Section 37 are in addition to the limitations provided under the Code of Criminal Procedure or any other law for the time being in force regulating the grant of bail. Liberal approach in the matter of bail under the Act is uncalled for.” 6. As observed by this Court in Union of India v. Thamisharasi 4 SCC 190 : 1995 SCC 665 : JT4 SC 253] clauseof sub sectionof Section 37 imposes limitations on granting of bail in addition to those provided under the Code. The two limitations are: an opportunity to the Public Prosecutor to oppose the bail application and satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. 7. The limitations on granting of bail come in only when the question of granting bail arises on merits. Apart from the grant of opportunity to the Public Prosecutor the other twin conditions which really have relevance so far as the present accused respondent is concerned are: the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based on reasonable grounds. The expression “reasonable grounds” means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the BAIL APPLN. 3424 2021 alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence....." In Union of India v. Rattan Mallik 2 SCC 624 the Supreme Court has observed as under: 12. It is plain from a bare reading of the non obstante clause in Section 37 of the NDPS Act and sub section thereof that the power to grant bail to a person accused of having committed offence under the NDPS Act is not only subject to the limitations imposed under Section 439 of the Code of Criminal Procedure 1973 it is also subject to the restrictions placed by clause of subsection of Section 37 of the NDPS Act. Apart from giving an opportunity to the Public Prosecutor to oppose the application for such release the other twin conditions viz. i) the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence andthat he is not likely to commit any offence while on bail have to be satisfied. It is manifest that the conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based on “reasonable grounds”. 13. The expression “reasonable grounds” has not been defined in the said Act but means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence he is charged with. The reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence7 SCC 798 :3 SCC505] ). Thus recording of satisfaction on both the aspects noted above is sine qua non for granting of bail under the NDPS Act. 14. We may however hasten that while to add considering an application for bail with reference to BAIL APPLN. 3424 2021 In State of Kerala & Ors. v. Rajesh & Ors. 12 SCC 122 the Supreme Court has observed as under: Section 37 of the NDPS Act the court is not called upon to record a finding of “not guilty”. At this stage it is neither necessary nor desirable to weigh the evidence meticulously to arrive at a positive finding as to whether or not the accused has committed offence under the NDPS Act. What is to be seen is whether there is reasonable ground for believing that the accused is not guilty of the offence(s) he is charged with and further that he is not likely to commit an offence under the said Act while on bail. The satisfaction of the court about the existence of the said twin conditions is for a limited purpose and is confined to the question of releasing the accused on bail." 19. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 CrPC but is also subject to the limitation placed by Section 37 which commences with non obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application and the second is that the court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied the ban for granting bail operates. 20. The expression “reasonable grounds” means something more than prima contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as facie grounds. BAIL APPLN. 3424 2021 are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the CrPC or any other law for the time being in force regulating the grant of bail its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for." 16. The facts of the case indicate that co accused Suraj was carrying 10 kilograms of Charas. The petitioner arrived in his white colour Skoda car which belonged to his brother the driver of the car gave a signal to Suraj and Suraj moved towards the car. The petitioner was driving the car he came out of the car and went near Suraj. Both of them spoke to each other and when they were moving towards the car they were apprehended along with the bag which Suraj was carrying that contained 10 kilograms of Charas. All these factors coupled with the fact the petitioner and Suraj were in touch with Chhering @ Charang who is absconding indicate that the petitioner is a part of the well organised drug cartel dealing with supply of Charas. In Gurdev Singh v. State of Punjab 6 SCC 558 the Supreme Court had discussed the deleterious impact of narcotic drugs on society and how the menace of drug addiction did not only have the ability of destroying the life of just one individual but how it could destroy the lives of generations to come. The consequences of dealing of drugs and drug abuse can be experienced across the board from causing economic issues to societal disintegration. The purpose of enacting the NDPS Act was to curb this menace and this purpose must be borne in mind while considering the BAIL APPLN. 3424 2021 grant of bail pertaining to the NDPS Act. 18. The petitioner has not been able to satisfy that there are reasonable grounds to believe that he is not guilty of such an offence. The fact that he is a member of the cartel gives a strong apprehension that he is likely to commit such an offence in the future as well. 19. The petition is dismissed with the above observations along with pending applications. FEBRUARY 08 2022 hsk SUBRAMONIUM PRASAD J BAIL APPLN. 3424 2021

Incarceration of the accused will lead to miscarriage of justice if the facts of case are strange and the evidence is insufficient: High Court of Himachal Pradesh

When the facts of the case which is of utmost importance are extremely contradictory and keep changing in every statement, it is unfair for the accused to be imprisoned without any conducive evidence. Such a use of law would lead to miscarriage of justice and thus bail must be granted. This was decreed by The Hon’ble Mr. Justice Anoop Chitkara in the case of Amit Chaudhary Vs. State of Himachal Pradesh [Cr.MP(M) No. 1039 of 2021] which was decided on the 09th of July 2021 in the High Court of Himachal Pradesh at Shimla. The brief facts of the case are, on 28.12.2020, two minor girls named ‘S’ (14 years) and ‘Y’ (16 years) escaped from the child care institute and took a bus and went to Bilaspur. On the bus, they met the present bail petitioner. It was claimed that the three of them spent the night together and ‘S’ was raped by him. They came back to Himachal Pradesh on 1.1.2021. An FIR was filed on the day the girls went missing. On 2.1.2021, the I.O. took the victims for their medical examination at IGMC, Shimla, where the doctors conducted their medico-legal examination. The DNA profile obtained from the underwear of ‘S’, three DNA profiles were identified, and one such DNA profile matched with the DNA profile obtained from the blood sample on FTA card of Amit Kumar. The present bail application is filed for release of the accused on regular bail. The counsel for the petitioner submitted that the victim had appeared as a witness in a case and had admitted she was above the age of 18 years. In addition to this, the Counsel states that, with conceding, given the fact that the victim had voluntarily accompanied the petitioner in a hotel, and she did not utter a single word of forceful action, but just stated that in the hotel, the petitioner had established sexual relations with her, it points towards consent. He also submits that the incarceration before the proof of guilt would cause grave injustice to the petitioner and family. The counsel for the state however states that the girl was a minor and a victim of Gang rape and if the court is awarding the petitioner with bail, extremely stringent and restrictive conditions must be imposed. The court heard the submissions of both the parties and observed that, she had admitted to be above the age of 18 in a cross examination by the defence in another trial where she testified as the witness. It was also mentioned that the mother of the victim had admitted the age of her daughter to be 20 on 12.1.2021. A perusal of the bail petition reveals that the petitioner did not file the copy of statements of the victims, recorded under Sections 161 and 164 CrPC. Without reading the statements of both the victims ‘S’ and ‘Y,’ it was not proper to assume that the petitioner had coitus with the victim ‘S’ and not with the victim ‘Y,’ against whom there are no allegations of false implications in the past. In a statement recorded on 4.1.2021, it was observed that the victim had mentioned that she did not want to continue with the case.

Hig h C o urt of H.P on 12 07 CIS 1 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.MP(M) No. 10321 Reserved on: July 7 2021 Date of Decision: July 9 2021 Amit Chaudhary ...Petitioner. Versus State of H.P. ...Respondent. Coram: The Hon’ble Mr. Justice Anoop Chitkara Judge. Whether approved for reporting 1NO For the petitioner: Mr. Peeyush Verma Advocate. For the respondent: Mr. Nand Lal Thakur Additional Advocate General Mr. Ram Lal Thakur Assistant Advocate General and Mr. Rajat Chauhan Law Officer for the State. THROUGH VIDEO CONFERENCE FIR No. Dated Police Station Sections 259 2020 28.12.2020 WestShimla 363. 354 376 of IPC 4 6 & 8 of POCSO Act. Anoop Chitkara Judge The petitioner incarcerating upon his arrest for alluring and raping a minor girl has come up before this Court seeking regular bail on the grounds of false implication and further that the victim had earlier levelled similar allegations on two occasions and in one such case in her statement recorded on oath during the trial she resiled from allegations and in her cross examination also stated that she was more than 18 years of age and that in her statement under S. 164 CrPC both the victims stated that they do not want to proceed with the case any further. 1 Whether reporters of Local Papers may be allowed to see the judgment Hig h C o urt of H.P on 12 07 CIS 2 2. Earlier the petitioner had filed the following bail petitions:Cr.MP(M) No.821 in this Court decided on 4th February 2021.Cr.MP(M) No. 3821 in this Court decided on May 11 2021. 3. The bail petition is silent about criminal history however Mr. Peeyush Verma Ld. Counsel for the bail petitioner states on instructions that the petitioner has no criminal past relating to the offences prescribing sentence of seven years and more. Ld. Counsel further submits that in the earlier bail petition CrMPM No. 821 in its Para 7 the petitioner had specifically stated that he had no criminal history. The status report also does not mention any criminal past of the accused. 4. Briefly the allegations against the petitioner are that: a) On 28.12.2020 on noticing the missing two minor girls ‘S’ aged 14 years and ‘Y’ aged 16 years from Child Care Institute Mashobra at Tutikandi the Officer in chargeimmediately informed the police of Police Station WestShimla. b) The victims took a lift in a car from the Child Care Institute and the car driver dropped them at the old Bus Stand Shimla. Then they took a phone of someone and called one Lovely a friend of ‘Y ’ and asked him to take them from Shimla. Lovely refused to do so but he sent them Rs.500 on the Google pay account of the person to which they called. The person who has Google pay account on the said mobile gave Rs.500 to them. c) After that both the victims reached the old bus stand Shimla and inquired about the bus to Una from a Lady named Kamla. Since it was night time no bus was available to Una and the victims spent the night of 28.12.2020 in the house of Kamla. On the morning of 29.12.2020 Kamla gave Rs.300 to the victims and the victims left her home at around 9 10 a.m. Later they took a bus to Bilaspur. d) While the victims were traveling on the bus Ankush started talking with ‘Y’ and later gave her his mobile number and asked her to meet him in Bilaspur. After that both the minor victims took another bus from Brahampukhar to Bilaspur and while traveling on the said bus another boy named Amitmet them. They went to Laxmi Narayan Temple in Bilaspur. Later in the day Amit arranged for a hotel room for the Hig h C o urt of H.P on 12 07 CIS 3 girls and himself. All of them spent the night in the same room where Amit raped ‘S’ aged 14 years. e) On 30.12.2020 they checked out from the hotel and ‘Y’ called Ankush from the mobile of Amit and he came to Bilaspur. After that they all went for a stroll on the bank of the river where Ankush molested ‘Y.’ Later in the day Amit left and Ankush arranged for a room in the same hotel for the night of 30.12.2020. After that he left the hotel telling the victims that he would get some food but did not return. ‘Y’ tried to call him through someone’s phone but he did not pick up. f) On 31.12.2020 Y again called him in the morning when Ankush said that he would not come back. Both the victims asked for Rs.500 from hotel staff to pay for the room s rent. Then both of them took a bus from Bilaspur to Chandigarh. On reaching Chandigarh S called one Vicky and asked him to come to Chandigarh to which he asked the victims to go to Ambala. On reaching Ambala the victims informed Vicky who came there to pick them up with another boy named Tonny. They picked them up on two different motorcycles. Vicky picked up S and Tonny Y. They took them to the room and raped them. g) On 1.1.2021 Vicky and Tonny left the girls in a bus stand for Chandigarh. On reaching Chandigarh ‘S’ called Vicky but he did not pick up the call. Then both the girls left for Baddi to the friend Kanchan. They called Kanchan but she did not pick up and then the victim returned to Chandigarh. ‘S’ called Vicky from Chandigarh and told him that they do not have any money. Then Vicky sent ‘S’ Rs.500 on the Google Pay account of the person she was calling. After that on the night of 1.1.2021 both the victims took a bus from Chandigarh to Dharampur and then reached at about 1.30 a.m. at the native village of ‘Y’ at District Solan H.P. h) On 2.1.2021 the I.O. took the victims for their medical examination at IGMC Shimla where the doctors conducted their medico legal examination. After medical examination the doctors collected swabs from their privates and handed them over to the investigator who sent the same to the Laboratory for analysis. Hig h C o urt of H.P on 12 07 CIS 4 i) Based on these allegations the Police registered the FIR mentioned above. j) Per the report of the FSL Junga the DNA profile obtained from the underwear of ‘S’ three DNA profiles were identified and one such DNA profile matched with the DNA profile obtained from the blood sample on FTA card of Amit Kumar 5 SCC 1 Para 92 the Constitutional Bench held that unusually subject to the evidence produced the Courts can impose restrictive conditions. REASONING: 8. Petitioner has annexed the copy of FIR No.319 dated 15 11 2019 registered in the file of Woman Police Station Nahan District Sirmour HP on the allegations made by the victim ‘S’ against Sahil Khan. The petitioner has also annexed a copy of the statement of PW 10 the mother of victim ‘S ’ as well as the copy of the statement of the victim ‘S ’ who testified as PW 11 in the trial No. 2 ST 20 in the Court of Special Judge Sirmour at Nahan going on against accused Sahil Khan. A perusal of these statements reveals that both mother and the victim had turned hostile. The victim even mentioned her age to be over 18 years as Hig h C o urt of H.P on 12 07 CIS 5 of 15 11 2019 the date of the incident.Apart from the above the petitioner has also annexed a copy of FIR No. 520 dated 6 7 2020 registered in the Police Station Nahan District Sirmaur HP on the allegations made by the mother of the victim ‘S’. 9. The proposition of law that whether the statements of a victim recorded in another trial can be read in evidence in another trial without allowing her to explain the circumstances under which these were made Or whether resort to S. 145 of the Indian Evidence Act 1872 is necessary before the Courts can look into the previous statements made in another case The trial commenced from the FIR No. 319 registered in the Women Police Station Nahan District Sirmaur HP the victim testified in the said trial No. 2 ST 20 State of HP v. Sahil Khan. The petitioner has annexed the copy of her statement. Thus given the COVID 19 pandemic coupled with the fact that the petitioner is in jail for more than six months this Court without settling down any law on the propositions mentioned above and without this order being treated as a precedent is looking at the statements to form a prima facie opinion only for the purpose of bail. 10. The victim “S” testified the above mentioned trial and stated that accused Sahil in the said case has not committed any sexual assault upon her. After that she was declared hostile and leading questions were put to her by learned Public Prosecutor. She stated it to be incorrect that in the year 2019 her age was 13 years and stated on her own that her parents might have wrongly recorded her age. In the cross examination by defence she stated that in November 2019 she was above 18 years of age. 11. The mother of the victim also appeared in the said trial as PW 10. She also did not support the case of the prosecution and was declared hostile. In her cross examination by the defence she stated that the victim was born at home in the year 2000. She further stated that she could not recollect the date but it was Guru Parav of Guru Nanakji in the year 2000. She also stated that she was never interested in studies and did not go to school for 4 5 years. Even after re admission she was not regular in her studies. Her mother further stated that the child victim “S” had fled away from home many times and even she fled from Balika Ashram. She further stated that on the date of statement i.e. 12.1.2021 the victim had attained the age of 20 years and in November 2019 she was more than 18 years of age. Hig h C o urt of H.P on 12 07 CIS 6 12. A perusal of the bail petition reveals that the petitioner did not file the copy of statements of the victims recorded under Sections 161 and 164 CrPC. Without reading the statements of both the victims ‘S’ and ‘Y ’ it was not proper to assume that the petitioner had coitus with the victim ‘S’ and not with the victim ‘Y ’ against whom there are no allegations of false implications in the past. Given this the Court had asked the State to produce the copies of the statements of both the victims recorded under S. 164 CrPC. The Court had also told the State to produce the DNA report. 13. Now the State has produced the copies of the victim s statement recorded under section 164 CrPC. These have not been supplied to the petitioner or his Counsel. 14. The law is no more Res Integra that under section 207 CrPC the accused is entitled to the copy of the statement under section 164 CrPC only after the concerned Court takes cognizance of the offence. Still there is no restriction or bar on an investigating agency to bring the statements recorded under section 164 CrPC to the notice of the concerned Court by handing over its copies or placing them on record along with the status report however despite this the accused cannot ask for it. In Miss "A" v. State of Uttar Pradesh a three judge bench of Hon ble Supreme Court holds 8 SCC 913] was completely incorrect. As logical extension of the directions passed by this Court no person is entitled to a copy of statement recorded under Section 164 of the Code till the appropriate orders are passed by the court after the charge sheet is filed. The right to receive a copy Hig h C o urt of H.P on 12 07 CIS 7 of such statement will arise only after cognizance is taken and at the stage contemplated by Sections 207 and 208 of the Code and not before. 15. The victim ‘S’ had made her statement under Section 164 CrPC on Jan 4 2021. After that in another FIR No. 319 registered in the Women Police Station Nahan District Sirmaur HP under sections 376 of IPC and Ss 4 & 8 of POCSO the victim was ‘S’ who is also the victim in the FIR of this bail petition. 16. Learned Judicial Magistrate 1st Class Shimla had recorded the statement of victim “S” on 4.1.2021. After putting primarily questions learned Magistrate was satisfied that she could be given oath as she understood its sanctity. After that she was administered oath and although she stated on oath her age to be 14 years but she also stated that when she and other victim “Y” had stayed with the petitioner in the hotel room then he had established relations with her. She concluded her statement by saying that she was sorry and they were at fault and they do not want the case to continue. 17. On analysis of the above statement reveals two ends. Firstly that although on 4.1.2021 victim “S” had revealed her age to be 14 years but as stated above on 12.1.2021 while appearing as a witness in the aforesaid Sessions trial she and her mother had stated her age to be above 18 years in 2019 and 20 years on 12.1.2021. Even while giving her particulars as PW 11 victim “S” had told her age as 20 years. Similarly her mother who had testified as PW 10 on 12.1.2021 stated on oath in the aforesaid trial that the victim had attained the age of 20 years as on 12.1.2021. 18. Since there is no allegation by victim “Y” that petitioner Amit Chaudhary had committed any sexual act with her and he had established coitus only with victim “S” as such there is no point referring in detail about her statement under Section 164 Cr.PC. 19. In the entirety of very strange facts of this case the possibility that the sexual act of the petitioner with victim “S” would not fall as statutory rape and it might result into miscarriage of justice if he is allowed to incarcerate on such kind of evidence. 20. An additional factor for bail is the very young age of the accused. The limited question before this Court is to grant or bail or not. These observations nowhere suggest the innocence or approval of the petitioner’s conduct. Without commenting on the case s merits given the investigation stage the period of incarceration already Hig h C o urt of H.P on 12 07 CIS 8 undergone and the circumstances peculiar to this case the petitioner makes a case for release on bail. 21. Given the above reasoning the Court is granting bail to the petitioner subject to strict terms and conditions which shall be over and above and irrespective of the contents of the form of bail bonds in chapter XXXIII of CrPC 1973. 22. In Manish Lal Shrivastava v State of Himachal Pradesh CrMPM No. 17320 after analysing judicial precedents this Court observed that any Court granting bail with sureties should give a choice to the accused to either furnish surety bonds or give a fixed deposit with a further option to switch over to another. 23. The petitioner shall be released on bail in the FIR mentioned above subject to his furnishing a personal bond of Rs. Ten thousandand shall furnish one surety for Rs. Twenty five thousandto the satisfaction of the Judicial Magistrate having the jurisdiction over the Police Station conducting the investigation and in case of non availability any Ilaqa Magistrate. Before accepting the sureties the concerned Magistrate must satisfy that in case the accused fails to appear in Court then such sureties are capable to produce the accused before the Court keeping in mind the Jurisprudence behind the sureties which is to secure the presence of the accused. 24. In the alternative the petitioner may furnish a personal bond of Rs. Ten thousandand within ten working days of his release from prison handover to the concerned Court a fixed deposit(s) for Rs. Ten thousand onlymade in favour of Chief Judicial Magistrate of the concerned district. a) Such Fixed deposits may be made from any of the banks where the stake of the State is more than 50% or any of the stable private banks e.g. HDFC Bank ICICI Bank Kotak Mahindra Bank etc. with the clause of automatic renewal of principal and liberty of the interest reverting to the linked account. b) Such a fixed deposit need not necessarily be made from the account of the petitioner and need not be a single fixed deposit. c) If such a fixed deposit is made in physical form i.e. on paper then the original receipt shall be handed over to the concerned Court. d) If made online then its printout attested by any Advocate and if possible countersigned by the accused shall be filed and the depositor shall Hig h C o urt of H.P on 12 07 CIS 9 get the online liquidation disabled. e) The petitioner or his Advocate shall inform at the earliest to the concerned branch of the bank that it has been tendered as surety. Such information be sent either by e mail or by post courier about the fixed deposit whether made on paper or in any other mode along with its number as well as FIR number. f) After that the petitioner shall hand over such proof along with endorsement to the concerned Court. g) It shall be total discretion of the petitioner to choose between surety bonds and fixed deposits. It shall also be open for the petitioner to apply for substitution of fixed deposit with surety bonds and vice versa. h) Subject to the proceedings under S. 446 CrPC if any the entire amount of fixed deposit along with interest credited if any shall be endorsed returned to the depositor(s). Such Court shall have a lien over the deposits up to the expiry of the period mentioned under S. 437 A CrPC 1973 or until discharged by substitution as the case may be. 25. The furnishing of the personal bonds shall be deemed acceptance of the following and all other stipulations terms and conditions of this bail order: a) The petitioner to execute a bond for attendance to the concerned Court(s). Once the trial begins the petitioner shall not in any manner try to delay the proceedings and undertakes to appear before the concerned Court and to attend the trial on each date unless exempted. In case of an appeal on this very bond the petitioner also promises to appear before the higher Court in terms of Section 437 A CrPC. b) The attesting officer shall on the reverse page of personal bonds mention the permanent address of the petitioner along with the phone number(s) WhatsApp numbere mailand details of personal bank account(s)and in case of any change the petitioner shall immediately and not later than 30 days from such modification intimate about the change of residential address and change of phone numbers WhatsApp number e mail accounts to the Police Station of this FIR to the concerned Court. c) The petitioner shall not influence browbeat pressurize make any Hig h C o urt of H.P on 12 07 CIS 10 inducement threat or promise directly or indirectly to the witnesses the Police officials or any other person acquainted with the facts of the case to dissuade them from disclosing such facts to the Police or the Court or to tamper with the evidence. d) The petitioner shall join the investigation as and when called by the Investigating Officer or any Superior Officer and shall cooperate with the investigation at all further stages as may be required. In the event of failure to do so it will be open for the prosecution to seek cancellation of the bail. Whenever the investigation occurs within the police premises the petitioner shall not be called before 8 AM and shall be let off before 5 PM and shall not be subjected to third degree indecent language inhuman treatment etc. e) In addition to standard modes of processing service of summons the concerned Court may serve or inform the accused about the issuance of summons bailable and non bailable warrants the accused through E Mailand any instant messaging service such as WhatsApp etc.No. 3 2020 I.A. No. 48461 2020 July 10 2020]: i. At the first instance the Court shall issue the summons. ii. In case the petitioner fails to appear before the Court on the specified date in that eventuality the concerned Court may issue bailable warrants. iii. Finally if the petitioner still fails to put in an appearance in that eventuality the concerned Court may issue Non Bailable Warrants to procure the petitioner s presence and may send the petitioner to the Judicial custody for a period for which the concerned Court may deem fit and proper to achieve the purpose. 26. Given the gravity of accusations and the heinous nature of the offence the petitioner shall surrender all weapons firearms ammunition if any along with the arms license to the concerned authority within 30 days from today and inform the Investigator about the compliance. However subject to the Indian Arms Act 1959 the petitioner shall be entitled to renew and take it back in case of acquittal in this case. Hig h C o urt of H.P on 12 07 CIS 11 27. The petitioner shall neither stare stalk make any gestures remarks call contact message the victim either physically or through phone call or any other social media nor roam around the victim s home. 28. The petitioner should stay far away from the place of occurrence while on bail. Thus the petitioner shall not enter within a radius of one kilometre from her house. This Court is imposing this condition to rule out any attempt by the accused to incapacitate influence or to cause any discomfort to the victim. Reference be made to Vikram Singh v Central Bureau of Investigation 2018 All SCR458) and Aparna Bhatt v. State of Madhya Pradesh 2021 SCC Online SC 230. 29. During the trial s pendency if the petitioner repeats or commits any offence where the sentence prescribed is more than seven years or violates any condition as stipulated in this order it shall always be permissible to the respondent to apply for cancellation of this bail. It shall further be open for any investigating agency to bring it to the notice of the Court seized of the subsequent application that the accused was earlier cautioned not to indulge in criminal activities. Otherwise the bail bonds shall continue to remain in force throughout the trial and after that in terms of Section 437 A of the CrPC. 30. Any Advocate for the petitioner and the Officer in whose presence the petitioner puts signatures on personal bonds shall explain all conditions of this bail order in vernacular and if not feasible in Hindi. 31. In case the petitioner finds the bail condition(s) as violating fundamental human or other rights or causing difficulty due to any situation then for modification of such term(s) the petitioner may file a reasoned application before this Court and after taking cognizance even to the Court taking cognizance or the trial Court as the case may be and such Court shall also be competent to modify or delete any condition. 32. This order does not in any manner limit or restrict the rights of the Police or the investigating agency from further investigation per law. 33. Any observation made hereinabove is neither an expression of opinion on the merits of the case nor shall the trial Court advert to these comments. 34. In return for the protection from incarceration the Court believes that the accused shall also reciprocate through desirable behavior. Hig h C o urt of H.P on 12 07 CIS 12 35. The SHO of the concerned Police Station or the Investigating Officer shall arrange to send a copy of this order preferably a soft copy to the victim at the earliest and not later than two days. In case the victim notices any objectionable behavior or violation of any terms or conditions of this order the victim may inform the SHO of the concerned Police Station or the Trial Court or even to this Court. 36. There would be no need for a certified copy of this order for furnishing bonds. Any Advocate for the petitioner can download this order along with the case status from the official web page of this Court and attest it to be a true copy. In case the attesting officer or the Court wants to verify the authenticity such an officer can also verify its authenticity and may download and use the downloaded copy for attesting bonds. In the facts and circumstances peculiar to this case the petition is allowed in the terms mentioned above. Copy Dasti. Anoop Chitkara Judge. July 9 2021 (ks).

A person cannot be said to hold a “civil post” under the State merely because the State exercises a certain amount of control over the post: High Court of Delhi

Merely because Manipur University is financed by or there is an element of control with the Central Government, it cannot be said that the employees of Manipur University hold a ‘civil post’ under the Union and are entitled to protection under Article 311 of the Constitution. Protection of Article 311 can only be claimed by the members of a civil service of the Union or of all- India service or of a civil service of a State or by persons who hold a civil post under the Union or a State. This was held in PROF. ADYA PRASAD PANDEY v. UNION OF INDIA & ANR. [LPA No. 157/2021] in the High Court of Delhi by division bench consisting of JUSTICE RAJIV SAHAI ENDLAW and MR. JUSTICE AMIT BANSAL. The facts are that the appellant was appointed as Vice-Chancellor of Manipur University for a period of 5 years. There were allegations against the appellant of gross financial and administrative irregularities in the management of the affairs of the university. A committee was constituted to Inquire the same comprising of former Acting Chief Justice of the High Court of Meghalaya, as Chairperson. The appellant assailed the before the Manipur High Court which was dismissed. He has filed an appeal against the same. The counsel for the appellant submitted that being the Vice-Chancellor, the appointment of the appellant was for a period of five years or till he attains the age of 70 and that he enjoyed the protection of Article 311 of the Constitution of India and curtailment of his term can only be in accordance with the law. The counsel for the respondents submitted that the Vice-Chancellor of Manipur University, appointed for a specific term, cannot be said to be a government servant holding a civil position and is, therefore, not entitled to protection under Article 311 of the Constitution of India. The court made reference to the judgment of Apex court in the case of  S.L. Agarwal (Dr.) v. G.M., Hindustan Steel Ltd, wherein it was held that “ Admittedly, the employees of any authority which is a legal entity separate from the State, cannot claim to be holders of civil posts under the State in order to attract the protection of Article 311. There is also no master and servant relationship between the State and an employee of PGIMER, which is a separate legal entity in itself. It is a settled position that a person cannot be said to have the status of holding a “civil post” under the State merely because his salary is paid from the State fund or that the State exercises a certain amount of control over the post”. The court also made reference to the apex court judgment in JS.L. Agarwal (Dr.) v. G.M., Hindustan Steel Ltd., wherein it was held that, “Hindustan Steel Limited is not a department of the government and its employees are not holding posts under the State. It has its independent existence under the Companies Act and therefore, its employees are not holders of ‘a civil post under the Union’ as stated in the Article 311”.

IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment Reserved on : 26th April 2021 Judgment Delivered on : 13th May 2021 LPA No.157 2021 C.M.s Nos.15280 2021& 15282 2021 for permission to file additional documents) PROF. ADYA PRASAD PANDEY Appellant Through: Mr. Abhaya K. Behera Senior Advocate with M. Puneet Singh Bindra Mr. Prakash Gautam & Ms. Simran Jeet Advocates. UNION OF INDIA & ANR. Through: Mr. Rajesh Gogna CGSC. Respondents HON BLE MR. JUSTICE RAJIV SAHAI ENDLAW HON BLE MR. JUSTICE AMIT BANSAL AMIT BANSAL J. The present intra Court appeal under Clause 10 of the Letters Patent Act has been filed impugning the judgment dated 9th April 2021 passed in W.P. No. 4031 2020 whereby the Ld. Single Judge of this Court has dismissed the writ petition filed by the petitioner appellant herein inter alia seeking quashing of the order dated 21st February 2020 passed by the respondent no. 1 of dismissal of the appellant from the post of Vice Chancellor Manipur University quashing of advertisement dated 16th March 2020 published for fresh appointment of Vice Chancellor of the LPA No. 157 2021 Manipur University direction to restore the appellant to the post of Vice Chancellor of Manipur University. Brief facts giving rise to this appeal are as follows i) The appellant was appointed as Vice Chancellor of Manipur University on 25th October 2016 for a period of 5 years. ii) On 20th January 2018 the appellant claimed that he received an extortion letter demanding Rs. 5 crores upon receipt of which an FIR dated 1st March 2018 was registered with the Manipur Police. iii) Consequent to an intensive agitation against the appellant led by groups like Manipur University Staff Association Manipur University Students’ Union & Manipur University Teachers’ Association a two member Fact Finding committee was constituted by way of a Notification dated 12th July 2018 by the respondent no. 2 to enquire into allegations against appellant of gross financial and administrative irregularities in the management of the affairs of the university. iv) A Memorandum of Agreement was signed between the agitating groups and the Joint Secretary MHRD Government of India on 16th August 2018 on seven points inter alia including that the appellant would remain on leave for the period of the inquiry and the Registrar of the University shall be the Nodal Officer of the Inquiry Committee. Subsequently the respondent no. 2 on 17th August 2018 constituted an Inquiry Committee comprising of former Acting Chief Justice of the High Court of Meghalaya as Chairperson and Professor M.K. Choudhary former Vice Chancellor Tezpur University as Member. LPA No. 157 2021 v) ‘Terms of Reference of Inquiry’ contained 18 allegations enumerated below: “1. That the present Vice Chancellor of Manipur University with the exception in the annals of Vice Chancellor has a bizarre habit of remaining away from the university for long periods. Most of his visits outside the state are largely unofficial tours. To the utmost shock he never informs his office the date of his arrival for those regular unofficial tours. This amounts disgrace to the office he holds. 2. That he intentionally violates the University Act MU Act 2005 section 22 which makes mandatory for a "Court Meeting" to assess current financial years performance and which further prepares annual objectives for the succeeding year. In the absence of any such meeting the university has failed to assess as well as to set objectives for the succeeding annual period. It is highly important to highlight here that the failure to conduct the "Court 13 Meeting" the Vice Chancellor of Manipur University has forfeited the noble idea of check and balance behind the very conduct of the meeting and gives him large avenue the programs and huge sanctioned amounts to meet his selfish and ulterior motives. 3. That the present Vice Chancellor of Manipur University has utterly failed to perform his duties as no convocation is held since the last Convocation of the Universitywhich was held on 29th April 2014. When the matter was put forward by us he refused to entertain the same. 4. That the mandatory conditions to conduct Executive Council meetingand Finance Committee meetingaccording to the University Rules has been deliberately overlooked. This prevents the office of the Vice Chancellor of Manipur University from scrutiny and gives the office the chance to abuse and excessively misuse its power and for manipulating LPA No. 157 2021 5. That a large amount of unaccounted money is being donated to several politically motivated organisation with the ulterior motive whereby misusing his office with the purpose and reason known best to him. 6. That in contravention to the Rules and Regulation of the Manipur University a huge amount of Rs. 5 crore is transferred to a Lucknow based firm for installation of several smart classes. It is informed to us by the officials of the university on condition of remaining anonymity that the firm based in Lucknow is closely related with the present Vice Chancellor of Manipur University. Therefore it can reasonably concluded that the office of the Vice· Chancellor of Manipur University has been misappropriated for notorious and illegal monetary 7. That in contravention to the Rules and Regulation of the Manipur University the present Vice Chancellor of Manipur University made a deal with another Lucknow based firm for supply of examination answer sheets at the rate of Rs. 24 per sheet which was previously supplied by a local firm at the rate of Rs. 5 per sheet. This succinctly shows that the office of the Vice Chancellor of Manipur University has been awfully abused for personal ulterior motive i.e. to gain huge monetary profit and thereby allowing to expend disproportionately from the exchequer amount. 8. That the Vice Chancellor of Manipur University has failed to implement and start the much awaited courses of LL.M MA Fine Arts and M.Ed. scheduled to get started in 2017 academic 9. That the Vice Chancellor of Manipur University indulges in corruption as huge amounts are collected in the recruitment for several posts recruited by way of contract basis. These posts are filled in contravention to University Rules as they are conducted without notification. LPA No. 157 2021 10. That the Vice Chancellor of Manipur University has transgress the very sanctity of the institution when the chamber the Vice Chancellor when several unknown women contractors businessmen and officials of the university have been partying in the said chamber in the night reportedly with indulgence of immoral conducts which demeaning of the office of Vice Chancellor. 11. That the Vice Chancellor of Manipur University has deliberately filled the statutory posts like that of the Registrar the Controller of Examinations Librarian and Curator under in charge model to possess the ultimate monopolistic power to control the University without any checks. 12. That the Vice Chancellor of Manipur University has utterly failed in his capacity as an responsible administrator as thousands of student have to face the brunt during the issuance of original certificates by taking 30 45 days while the same process was completed within a. period of 2 3 days before his tenure ship. 13. That the mismanagement and ill conduct of the Vice Chancellor of Manipur University has led to the destruction of academic calendar of the university as the competent authority in connivance with the Vice Chancellor has failed to conduct semester examination in time and declaration of results of the same in time. 14. That the Vice Chancellor of Manipur University has failed to ensure the completion of the "The one year courses in Centre for Myanmar Studies and Human Rights" within the stipulated time as the completion of the said courses takes two years time against the previous precedent where it took only one year. 15. That the Vice Chancellor of Manipur University allowed the students being harassed and threatened psychologically as they are frisked with utter disrespect by his security guards while entering his chamber. LPA No. 157 2021 16. Arbitrary and illegal donation of Rs.2 lacs from Manipur University funds to student group ABVP. 17. Willful failure to make permanent appointments to key posts such as Registrar COE Librarian and Museum Curator which aids him kin taking arbitrary decisions concerning these 18. Taking frequent leave without informing the University about his return date and spending around Rs. 8 crore in travelling expenses so far during his tenure.” vi) The appellant assailed the MOA dated 16th August 2018 and the Notification dated 17th August 2018 before the Manipur High Court vide W.P.(C) No.825 2018 and also prayed for ad interim stay which was declined. Subsequently two more writ petitions were filed by way of PILs which were tagged with W.P.(C) No.825 2018. Appellant preferred S.L.P. No.24707 2018 against non grant of stay by the Manipur High Court but no relief was granted. The Manipur High Court vide a common judgment dated 22nd May 2019 dismissed the petition filed by the appellant and disposed of the PILs. vii) On 6th September 2018 the Inquiry Committee commenced the inquiry proceedings treating the ‘Terms of Reference’ as the charge sheet against the appellant which as per the appellant was never served upon him at any stage. The appellant was placed under suspension vide order dated 17th September 2018 by the respondent no. 2 until completion of the inquiry proceedings. The appellant did not participate in the inquiry proceedings. LPA No. 157 2021 viii) The Inquiry Committee on 27th May 2019 submitted a Report dated 3rd March 2019 to the respondent no. 1 holding the appellant guilty of most of the 18 charges as per the ‘Terms of ix) Respondent no.2 issued a show cause notice dated 24th September 2019 to the appellant requiring him to show cause ‘as to why he should not be removed from the post of Vice Chancellor of Manipur University for his misconduct dereliction of duty abuse of power and lack of commitment’. A copy of the Inquiry Report dated 3rd March 2019 was also supplied to the appellant. x) The appellant submitted his reply dated 11th October 2019 to the show cause notice inter alia objecting to constitution of the Inquiry Committee and procedures of inquiry violation of principles of natural justice preparation and issuance of charge sheet by incompetent authority and non supply of the same to the appellant non supply of statement of witnesses and no evidence or material to substantiate the charges. The appellant further made allegations with respect to impartiality of the Chairperson of the Inquiry Committee on the ground that he was a close relative of the complainants. xi) On 21st February 2020 the respondents passed an order dismissing the appellant from the post of Vice Chancellor. Subsequently an advertisement dated 16th March 2020 was issued inviting applications for fresh appointment to the said post. The appellant aggrieved by the order dated 21st February 2020 and the advertisement dated 16th March 2020 filed the petition LPA No. 157 2021 before this Court by way of W.P.(C) No.4031 2020 from which the present appeal arises which was dismissed by the Ld. Single Judge vide the impugned judgment dated 9th April 2021. The main plank of the appellant’s submissions before the Ld. Single Judge was violation of principles of natural justice in the conduct of the inquiry proceedings inter alia contending that: no notice or intimation was ever issued by the Disciplinary Authority informing him of the allegations against him or of the constitution of the Inquiry Committee. the inquiry proceedings against him were conducted ex parte. the Inquiry Committee was formed without charges being drawn up and that ‘Terms of Reference’ have no validity in the the Inquiry Committee travelled beyond the allegations and gave findings on allegations that were not subject matter of the the Visitor has mechanically reiterated the findings of the Inquiry Committee and imposed the extreme penalty of eyes of law. charges against him. The above submissions did not find favour with the Ld. Single Judge and the writ petition was dismissed by the Ld. Single Judge with the following observations findings: The appellant could not have challenged the proceedings of the Inquiry Committee and its Report alleging violation of principles of natural justice after having abstained from the inquiry proceedings consciously Inquiry Committee made LPA No. 157 2021 several efforts to serve the notices of the proceedings to the appellant and also published the same in daily newspapers. That the appellant was conscious of the constitution of the Inquiry Committee and the ongoing proceedings as he challenged the same before the Manipur High Court by way of W.P.(C) No.825 2018. He also sent a letter dated 22nd September 2018 to the Committee expressing his inability to appear before the Inquiry Committee. ii) The argument that ‘Terms of Reference’ were not supplied to the appellant and he had no knowledge of allegations leveled against him could not be sustained as the notice published in the newspapers provided details and links of the website wherefrom the same could be accessed. He could have appeared in the inquiry proceedings and sought a copy thereof. Further the appellant never challenged the non supply of ‘Terms of Reference’ or the non drawing up of charge sheet in the conventional sense before the Manipur High Court in his writ petition challenging constitution of the Inquiry Committee. iii) The argument that ‘Terms of Reference’ cannot be the basis of inquiry in the absence of a conventional charge sheet deserved to be rejected based upon a bare perusal of the ‘Terms of Reference’ which unequivocally and unambiguously convey the allegations leveled against the appellant in order to enable him to defend himself. LPA No. 157 2021 iv) The records indicate that the Inquiry Officer has not travelled beyond the ‘Terms of Reference’ and has rendered findings only on the 18 charges leveled against the appellant. v) The Inquiry Committee examined every charge leveled against the appellant and analyzed them based on oral and documentary evidence before coming to the conclusion that most of the charges stood ‘proved’. vi) The respondents have carefully analyzed the Inquiry Report as well as the reply received from the appellant and have passed a detailed order holding the appellant guilty of various charges and accordingly passed the dismissal order. The main argument of the appellant in these proceedings was also that the appellant was not given an opportunity to present his case in the inquiry proceedings and that caused grave prejudice to him. It was further contended that even if the appellant chose not to appear before the Inquiry Committee the Inquiry Committee had to consider the various materials on record and evidence against the respondents before coming to its conclusion. While rejecting this submission the Ld. Single Judge has given elaborate reasons to arrive at the finding that full opportunity was given to the appellant to present himself before the Inquiry Committee but he chose not to do so. In this regard reference may be made to the letter dated 22nd September 2018 written by the appellant to the Inquiry Committee which clearly shows that the appellant was fully aware of the proceedings before the Inquiry Committee and despite that preferred not to appear in the said inquiry proceedings. In fact the appellant had categorically stated before the Manipur High Court that he was giving up the challenge to the constitution LPA No. 157 2021 of the Inquiry Committee on the ground of objection to impartiality of the Chairperson and that he was ready to face the inquiry. However even then the appellant did not appear before the Inquiry Committee. As noted by the Ld. Single Judge the Inquiry Committee not only published notices in the local newspapers with regard to holding of the inquiry proceedings but also sent a special messenger to the official residence of the appellant so as to inform him about the inquiry proceedings but the appellant was not present at the relevant time and his staff refused to accept the notices. This gives further credence to the charge that the appellant preferred to spend most of his time away from Manipur while being the Vice Chancellor of the Manipur University. Despite being given several opportunities to appear in the inquiry proceedings and give his version the appellant failed to do so. Therefore the submission of the appellant that there was violation of principles of natural justice is completely devoid of merits. In light of the above the contention of the appellant that he was not supplied the ‘Terms of Reference’ documents list of witnesses and affidavits filed by the witnesses is also misconceived. The appellant should have appeared and participated in the inquiry proceedings and sought all the aforesaid documents. Once the appellant had chosen not to appear he cannot make any grievance out of non supply of the aforesaid documents or violation of principles of natural justice. We fully agree with the elaborate findings given by the Ld. Single Judge. 7. It was next contended on behalf of the appellant that Professor Dorendrajit Singh who was prominent in the agitation to remove the appellant as Vice Chancellor illegally continued to act as the Registrar in LPA No. 157 2021 charge as well as the Nodal Officer of the Inquiry Committee appointed to enquire against the appellant. He was the one in his capacity as Nodal Officer who drew up the ‘Terms of Reference’ for the inquiry. The said contention is without any merits. Even if it is assumed that Professor Dorendrajit Singh illegally continued to act as the Nodal Officer no prejudice could have been caused to the appellant as he was not the one conducting the inquiry. As rightly observed by the Learned Single Judge the appellant if aggrieved by the appointment and continuance of Professor Dorendrajit Singh as Nodal Officer for the inquiry could have challenged the same but chose not to do so. It is an admitted position that the appellant did challenge the appointment of the Inquiry Committee and its constitution before the Manipur High Court. Nor did he question challenge the ‘Terms of Reference’ at the relevant time. In fact his case was that he was never supplied the ‘Terms of Reference’ in respect of which we have already observed that he should have participated in the inquiry proceedings and obtained a copy of the same. Therefore it is not open to the appellant to raise this issue at this stage. It was further contended on behalf of the appellant that the show cause notice dated 24th September 2019 issued pursuant to the Inquiry Report clearly shows that the respondents had already made up their mind. In this regard the appellant relied upon paragraph 4 of the show cause notice to state that the issuance of the show cause notice was an empty formality and the respondents had already decided as to the guilt of the appellant. In our view there is nothing in the show cause notice which suggests that the respondents had already made up their mind with regard to the guilt of the appellant. The show cause notice only summarized the LPA No. 157 2021 findings of the Inquiry Report so as to give an opportunity to the appellant to file his response thereto. The appellant duly replied to the show cause notice and the various findings against him in the Inquiry Report which was placed before the Respondents. Therefore the contention that the show cause notice was faulty on account of the respondents having made up their mind against the appellant is concerned is completely without merits. Next contention of the appellant was that the respondents had mechanically accepted the report of the Inquiry Committee and adopted the same in passing the dismissal order and failed to consider the various objections raised by the appellant with regard to the Inquiry Report. In our view this contention of the appellant is completely misconceived. Once the appellant has chosen not to appear in the inquiry proceedings and submit all material in support of his case he has missed the opportunity to put forth his case. The appellant ought to have appeared in the inquiry proceedings and raised various defences in his favour and lead evidence. Having missed that opportunity it was too late in the day for the appellant to re agitate the various defences objections which ought to have been taken in the inquiry proceedings. Undoubtedly the appellant filed his detailed objections against the Inquiry Report however to contend that the same was not considered by the respondents while passing the dismissal order is not borne out by the record. A bare perusal of the dismissal order passed by the respondents clearly shows that the respondents had gone through the entire record of the inquiry proceedings and various objections raised by the appellant in arriving at its conclusion. A disciplinary authority is not a judicial authority which is expected to give detailed reasons in respect of each of its findings. Therefore one has to take a holistic view of the order passed by the LPA No. 157 2021 disciplinary authority to come to the conclusion that whether the disciplinary authority has applied its mind while passing the order. In our mind it is clear from a reading of the dismissal order that the respondents had duly applied their mind to the defences raised by the appellant and the record and findings of the inquiry proceedings. 10. The appellant has placed reliance on the judgment of the Supreme Court in Yoginath D. Bagde v. State of Maharashtra & Anr.7 SCC 739 in support of the proposition that a disciplinary authority had to give reasons in support of its conclusion. The aforesaid judgment is in the context where the Disciplinary Authority disagreed with the findings of the Inquiry Committee and the judgment has laid down the proposition that the Disciplinary Authority has to give detailed reasoning for such disagreement. This is not the situation in the present case as in the present case the Disciplinary Authority agreed with the findings of the inquiry proceedings. Further in the present case as noted above the Disciplinary Authority has given full opportunity to the appellant to present his case and has duly considered the same and passed a well reasoned speaking order. 11. The other issue raised on behalf of the appellant was that the appellant being the Vice Chancellor his appointment was for a period of five years or till he attains the age of 70 and that he enjoyed the protection of Article 311 of the Constitution of India and curtailment of his term can only be in accordance with law. The inquiry conducted in his case was in complete violation of law and principles of natural justice. On the other hand the counsel for the respondents submitted that the Vice Chancellor of Manipur University appointed for a specific term cannot be said to be a government servant holding civil position and is therefore not entitled for LPA No. 157 2021 protection under Article 311 of the Constitution of India. In support of his contention the counsel for the respondents relied upon the judgment in the case of Union Public Service Commission v. Girish Jayanti Lal Vaghela & Ors.2 SCC 482. 12. We have considered the submissions of the parties. The question as to the posts that enjoy protection under Article 311 of the Constitution has been considered by the Supreme Court on many occasions. Reference may be made to the decision of the Constitution Bench in S.L. Agarwalv. G.M. Hindustan Steel Ltd. 1 SCC 177. In the said case appellant therein was appointed as Assistant Surgeon by the Board of Directors of Hindustan Steel Ltd. a public sector undertaking on contract basis and his services were terminated in accordance with the terms of the contract. He filed a writ petition in the High Court contending that his services were wrongly terminated which was violative of Article 311 of the Constitution. The Respondent contended that Article 311 was not applicable to him as he was employed by a Corporation and he neither belonged to civil service of the Union nor held a civil post under the Union. Negativing the contention of the appellant the Constitution Bench held that Hindustan Steel Limited is not a department of the government and its employees are not holding posts under the State. It has its independent existence under the Companies Act and therefore its employees are not holders of a civil post under the Union as stated in the Article 311. Similar view has been taken by the Supreme Court in Ajit Kumar Nag v. General Manager Indian Oil Corpn. Ltd. Haldia & Ors.7 SCC 764 Satinder Singh Arora v. State Bank of Patiala 1992 SuppSCC 224 State Bank of India v. S. Vijaya Kumar LPA No. 157 2021 3 SCC 448. 1990) 4 SCC 481 Pyare Lal Sharma v. Managing Director & Ors.13. In Dr. Gurjeewan Garewal v. Dr. Sumitra Dash & Ors. 5 SCC 263 the issue involved before the Supreme Court was whether the respondent therein working with Post Graduate Institute of Medical Education and Research Chandigarh could be said to be holding a ‘civil post’ with the State so as to be afforded protection under Article 311. The Supreme Court relying upon the judgements in State of Assam v. Kanak Chandra Dutta AIR 1967 SC 884 and S.L. Agarwalv. G.M. Hindustan Steel Ltd. supra held as under: “14. Reverting back to the case in hand Section 4 of the Post Institute of Medical Education and Research Chandigarh Act 1966 says that PGIMER is a “body corporate which is having a perpetual succession and a common seal with power”. This clearly provides that PGIMER is a separate entity in itself. Admittedly the employees of any authority which is a legal entity separate from the State cannot claim to be holders of civil posts under the State in order to attract the protection of Article 311. There is also no master and servant relationship between the State and an employee of PGIMER which is a separate legal entity in itself. It is a settled position that a person cannot be said to have the status of holding a “civil post” under the State merely because his salary is paid from the State fund or that the State exercises a certain amount of control over the post. The PGIMER Act might have provided for some control over the institution but this doesn t mean that the same is a State for the purpose of Article 311. Therefore the employees of PGIMER cannot avail the protection of Article 311 since the same can be claimed only by the members of a civil service of the Union or of all India service or of a civil service of a State or by persons who hold a civil post under the Union or a State. PGIMER cannot be treated as a “State” for the purpose of Article 311 and the employees therein LPA No. 157 2021 are not holding any “civil post”. In result the 1st respondent is not holding a “civil post” and she cannot claim the guard of Article 311.” 14. The aforesaid reasoning is fully applicable to the present case. Like PGIMER Manipur University is a legal entity separate from the Union. Merely because Manipur University is financed by or there is an element of control with the Central Government it cannot be said that the employees of Manipur University hold a ‘civil post’ under the Union and are entitled to protection under Article 311 of the Constitution. Protection of Article 311 can only be claimed by the members of a civil service of the Union or of all India service or of a civil service of a State or by persons who hold a civil post under the Union or a State. Even though the Central Government may have a role in appointment of the Vice Chancellor of the Manipur University he will not be entitled to protection under Article 311 as he does not hold a ‘civil post’ under the Union. Therefore the elaborate inquiry as envisaged under Article 311 before terminating the services of a government servant is not applicable in the case of the appellant. Having said that we are of the view that the Respondents carried out an elaborate fact finding inquiry to establish the guilt of the appellant and gave full opportunity to the appellant to participate in the same. However the appellant instead of participating in the inquiry proceedings preferred to challenge the inquiry proceedings initially before the Manipur High Court and subsequently before this Court. 15. Therefore no infirmity can be found with the judgment of the Ld. Single Judge. After elaborately discussing the various contentions raised on behalf of the appellant the Ld. Single Judge has rightly come to the LPA No. 157 2021 conclusion that while exercising jurisdiction under Article 226 of the Constitution of India the findings of the inquiry proceedings and or Disciplinary Authority cannot be interfered unless the same are found to be perverse or in complete violation of principles of natural justice and that principles of natural justice were followed in full in the present case. Accordingly there is no merit in the present appeal and the same is dismissed. C.M. No.15865 2021 16. This application has been filed by the appellant seeking to place on record additional documents that were not part of the record before the Ld. Single Judge. It is stated that the documents sought to be filed with the application though not before the writ court will have a material bearing in the outcome of the case. The counsel for the appellant applicant has stated that though the application was filed before 26th April 2021 when arguments in this appeal were heard and orders were reserved the said application could not be listed on the said date. The application was listed for hearing on 6th May 2021 when both counsels were heard and it was recorded that the order on the application will be delivered with the judgement on the main appeal. 17. The counsel for the respondents has contended that the documents sought to be placed on record vide this application are not relevant for the adjudication of the present appeal and cannot be taken into consideration at this stage when the judgement has been reserved in the matter. LPA No. 157 2021 MAY 13 2021 18. Although in the normal course for the adjudication of the present appeal this Court cannot travel beyond the record before the Ld. Single Judge we have still considered the documents sought to be filed with the said application. In our view the said documents do not materially affect the outcome of the present appeal. 19. Accordingly the application is disposed of. AMIT BANSAL J. RAJIV SAHAI ENDLAW J. LPA No. 157 2021

Merely because complaint u/s138 NIA is filed–is no ground to quash the separate FIR u/s420/406 IPC. Offences u/s138 NIA and u/s 420/406 IPC not mutually exclusive. Both can go on side-be-side. No double jeopardy: Punjab and Haryana High Court

It appeared that Article 20 of the Constitution of India prohibits the conviction of a person twice for the ‘same offence’ and not for separate and distinct offences. Similarly, Section 300 of Crpc. prohibits prosecution and conviction of a person again; only after such person is tried and convicted or acquitted of the said offence once. None of the above is the situation in the present case. So the protection against double jeopardy is not even remotely attracted in the present case. In view of the above, this Court does not find any ground to quash the FIR against the present petitioner held by Hon’ble Justice Rajbir Sehrawat in Sazid Khan versus State of Haryana and another [CRM-M-31873-2018].  The facts leading to this case relate to the M/s Goel Sales Corporation had filed a complaint under Section 138 read with Section 142 of the Negotiable Instruments Act on 10.01.2018. It was pleaded in the complaint that one Hasan Ahmed, the State Head, of M/s Astro Suppliers, had assured the complainant to get the work of the Distributorship from Bombay Dyeing for District Gurugram. After that the Hasan Ahmed met the complainant personally and the complainant had applied for Distributorship along with various documents which were given to Hasan Ahmed. For the above-said assurance, Hasan Ahmed had taken the money. However, in the meantime, Hasan Ahmed had also ensured to the complainant that the work orders from the present petitioner firm. In the course of business, the complainant had supplied the ordered item to the accused in the complaint case, which happened to be the company as well as its proprietor, the present petitioner. Since the complainant had supplied goods to the accused company and its proprietor, therefore, as per the ledger account an amount of Rs.54,17,017/- was outstanding towards the accused up to 31.11.2017. For discharging of their liability, the petitioner, proprietor of the accused firm had issued a cheque bearing No.050758 dated 29.11.2017 for an amount of Rs.20,00,000/-. That cheque was returned unpaid by the banker of the accused with the endorsement ‘Funds Insufficient’. For that non-payment of the cheque, the complainant filed the complaint against the accused under Section 138 of the Negotiable Instruments Act. Thereafter, the complainant firm also lodged an FIR No.24 dated 23.01.2018 registered under Sections 120-B, 406,420 of IPC. The allegations are that the complainant had transferred Rs.50 lakhs in the account of the firm M/s Astro Suppliers through RTGS. The complainant was not provided Distributorship, as assured to him. Therefore, cheating has been done on him. It was further alleged that after the money was paid; the complainant contacted the above said Hasan Ahmed for getting the Distributorship. However, when the complainant contacted the above said Hasan Ahmed for demanding his money back the latter said that he did not have any money to return, and if any money was demanded back he would kill the complainant. During the investigation, it came that when cornered by the complainant for not ensuring the Distributorship to the complainant, the said Hasan Ahmed allured the complainant to procure more business for him from various firms and therefore, asked the complainant to supply goods for several firms. Money was not paid even for these goods supplied for various firms. Hence case was registered. It deserves mention here that in the FIR case, the present petitioner is not named by the complainant in the FIR as the accused. However, during the investigation, he is found involved in the case as a part of conspiracy under Section 120-B of IPC. While arguing the case, learned counsel for the petitioner has submitted that once the criminal complaint is filed under Section 138 of the Negotiable Instruments Act before registration of the police case then the FIR under Section 420/406 of IPC cannot be lodged for the same cause of action. It is further contended that offences under Section 138 of the Negotiable Instruments Act and the offences under Section 420, 406 IPC are mutually exclusive. Still, further, it is contended that continuing the FIR case amounts to double jeopardy.

on 02 08 CRM M 31873 20181Sr. No.126IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARHCRM M 31873 2018Date of decision:27.07.2018Sazid Khan......PetititonerversusState of Haryana and another.......RespondentsCoram:HON BLE MR. JUSTICE RAJBIR SEHRAWATPresent:Mr. Samrendra Kumar Advocate for the petitioner.Rajbir Sehrawat J(Oral)The present petition has been filed for quashing of FIR No.24dated 23.01.2018 registered under Sections 120 B 406 420 of IPC at PoliceStation Gurgaon City District Gurugram and all subsequent proceedingsarising therefrom.The brief facts of this case are that M s Goel Sales Corporationhad filed a complaint under Section 138 read with Section 142 of theNegotiable Instruments Act on 10.01.2018. It was pleaded in the complaintthat one Hasan Ahmed the State Head of M s Astro Suppliers had assuredthe complainant to get the work of the Distributorship from Bombay Dyeingfor District Gurugram. Thereafter the said Hasan Ahmed met thecomplainant personally and the complainant had applied for Distributorshipalong with various documents which were given to Hasan Ahmed. For theabove said assurance Hasan Ahmed had taken money. However in themean time Hasan Ahmed had also ensured to the complainant the work orders from the present petitioner firm. In the course of business the on 02 08 CRM M 31873 20182complainant had supplied the ordered item to the accused in the complaintcase which happened to be company as well as its proprietor the presentpetitioner. Since the complainant had supplied goods to the accusedcompany and its proprietor therefore as per the ledger account an amountof Rs.54 17 017 was outstanding towards the accused upto 31.11.2017.For discharging of their liability the petitioner proprietor of the accusedfirm had issued cheque bearing No.050758 dated 29.11.2017 for an amountof Rs.20 00 000 . That cheque was returned unpaid by the banker of theaccused with the endorsement Funds Insufficient . For that non payment ofthe cheque the complainant filed the complaint against the accused thepresent petitioner under Section 138 of the Negotiable Instruments Act. Inthat complaint the present petitioner has been summoned as an accused.However thereafter the complainant firm also lodged an FIRNo.24 dated 23.01.2018 registered under Sections 120 B 406 420 of IPC atPolice Station Gurgaon City District Gurugram. In this FIR the allegationsare that the complainant had transferred Rs.50 lakhs in the account of thefirm M s Astro Suppliers through RTGS. The complainant was notprovided Distributorship as assured to him. Therefore cheating has beendone to him. It was further alleged that after the money was paid thecomplainant contacted the above said Hasan Ahmed for getting theDistributorship. However when complainant contacted the above saidHasan Ahmed for demanding his money back the latter said that he did nothave any money to return and if any money was demanded back he wouldkill the complainant. On these allegations the said FIR was registered. After investigation the challan was filed by the Police againstthe accused including the present petitioner. During the investigation it on 02 08 CRM M 31873 20183came that when cornered by complainant for not ensuring theDistributorship to the complainant the said Hasan Ahmed allured thecomplainant to procure more business for him from various firms andtherefore asked the complainant to supply goods for several firms. Moneywas not paid even for these goods supplied for various firms. Hence casewas registered. Out of those firms the proprietor of M s Om Sons SunilGupta was arrested. Thereafter their servant was also arrested for helpingthe owner of that firm escape from arrest. The accused Hasan Ahmed wasalso arrested. When arrested the accused Hasan Ahmed disclosed that outof the goods supplied by the complainant the goods amounting toRs.51 30 575 have gone to Vijay Tiwari proprietor of M s ShandilyaEnterprises. Likewise the goods worth Rs.20 17 848 have gone to SunilGupta and goods for Rs.8 88 660 have gone to M s Sanu Drishti ExportPvt. Ltd. and goods worth Rs.54 17 017 have gone to Sajid Khan beingproprietor of M s Oriental Hometex. That is how the name of the presentpetitioner cropped up in the criminal case involved in the FIR as part of theconspiracy to take out the goods in the name of the business from thecomplainant. It deserves mention here that in the FIR case the presentpetitioner is not named by the complainant in the FIR as the accused.However during investigation he is found involved in the case as a part ofconspiracy under Section 120 B of IPC. While arguing the case learned counsel for the petitioner hassubmitted that once the criminal complaint is filed under Section 138 of theNegotiable Instruments Act before registration of the police case then theFIR under Section 420 406 of IPC can not be lodged for the same cause ofaction. In support of his argument he has relied upon the judgment of the on 02 08 CRM M 31873 20184Supreme Court rendered in 2000(1) RCR(Cr.) 707 G.Sagar Suri andanother vs. State of UP. and others and also the judgment of this Courtrendered in CRM M 32912 2007 titled as Ashok Puri vs. State of Punjaband another decided on 19.12.2011 which is solely based on the abovesaid judgment of the Supreme Court. Learned counsel for the petitioner hassubmitted that the proceedings under Sections 420 406 IPC as initiated onthe basis of FIR in question are bound to be quashed. It is further contendedthat offences under Section 138 of the Negotiable Instruments Act and theoffences under Section 420 406 IPC are mutually exclusive. Still further itis contended that continuing the FIR case amounts to double jeopardy. However this Court does not find any force in the argumentsof learned counsel for the petitioner. There is no concept of same cause ofaction or for that matter of cause of action in the criminal jurisprudence.What is punishable in criminal law is the conduct of an accused or theconsequences arising from such conduct as reflected in a fact or set of facts.If such two distinct facts or set of facts or the consequences thereofconstitute more than one offences then the accused is liable to be prosecutedand punished for all such offences whether the offences are punishableunder the general penal law as contained in IPC only or the same arepunishable under general criminal and special criminal law separately. It issettled law that mere fact that a conduct is punishable under special law isnot the ground to hold that such conduct can not be punished under generalcriminal law. In the present case the set of facts involved are of twodifferent stages. In the complaint case the factum of issuance of cheque ona business transactions and the dishonour thereof is involved. For that thecriminal complaint has been filed under Section 138 of the Negotiable on 02 08 CRM M 31873 20185Instruments act. No fault could be found in that. Even the petitioner hasnot questioned the validity of the complaint filed by the complainant underSection 138 of the Negotiable Instruments Act in the present proceedings.So far as the FIR is concerned it relates to several transactions set of factsincluding supply of some of the goods by the complaint on therepresentation of the accused Hasan Ahmed which were ultimately receivedby the present petitioner. The present petitioner does not claim to have anyconnection with the complainant of business or otherwise therefore thegoods were supplied only through representation by Hasan Ahmed.Admittedly the petitioner has received the goods but has not made thepayment. After investigation it has been found by the Police as mentionedin the Final Form Report(under Section 173 Cr.P.C.) that instead ofreturning the money taken by Hasan Ahmed for getting the Distributorshipto the complainant he started alluring the complainant further to supplycertain goods to certain entities through the said Hasan Ahmed. One ofthose entities happened to be the firm of the present petitioner. Afterinvestigation the Police has found an angle of conspiracy in this matterwhich involves the present petitioner as well. As is so discernible from theFIR even the name of the present petitioner does not find mentioned in it.Therefore it can not be said by any stretch of imagination that theproceedings in the FIR against the petitioner has been started by thecomplainant as misuse of the process of the court and therefore should bequashed on that ground. Once the Police has found material to present thechallan against the petitioner showing his involvement in the conspiracy then per se the FIR can not be quashed on this ground. The argument of learned counsel for the petitioner that the on 02 08 CRM M 31873 20186offences under Section 138 of Negotiable Instruments Act and Section420 406 IPC are mutually exclusive and therefore once the complaint underSection 138 of Negotiable Instruments Act has been filed and summonshave been issued by the Trial Court in the complaint case finding primafacie the existence of legally enforceable liability thereafter the FIR underSection 406 420 IPC which presumes criminal intent is not maintainablein law also does not find favour from this Court. It is well settled law thatin criminal jurisprudence an act of an accused becomes punishable from thestage of attempt although in some cases it becomes punishable even fromthe stage of preparation. However by any means attempt to commit anoffence conspiracy to commit an offence and the commission ofsubstantive offence in one stage and chain of acts and then as aconsequence of those acts but at different stage and different act resultinginto a different offence under a different law can always be carried forwardseparately. So far as the complaint under Section 138 NegotiableInstruments Act is concerned the set of facts which constitute this offencestart only from the stage when liability is created in discharge of thatliability the cheque is issued and completed when the cheque is dishonored.This offence neither explicably requires mense rea nor explicitly excludes it.However there can definitely be situations where liability incurred by theaccused of offence under Section 138 of the Negotiable Instruments Actresults from fraud misrepresentation or through a conspiracy committed atprior stage of sequence or facts. In that situation by no means it can besaid that an accused can not be prosecuted for the fraud committed by him conspiracy in which it is involved or the misrepresentation from which hehas benefitted. Therefore simply because a complaint is filed under on 02 08 CRM M 31873 20187Section 138 of the Negotiable Instruments Act does not mean that underany circumstances a person can not be prosecuted under Sections 420 406IPC. Even in case where the legally enforceable liability is incurred by aperson under a commercial agreement which was procured by such personby coercion undue influence fraud or misrepresentation the liability canstill be enforced by the person upon whom fraud was played as prescribedunder Section 19 and 19 A of the Indian Contract Act. Such agreement isvoidable only at the option of the person who has been cheated and not voidaltogether or voidable at the option of the person who has cheated. Sodespite being based on fraud such liability remains legal and valid againstthe person who had played the fraud. In that situation a person woulddefinitely be liable for the offence under Sections 420 and 406 IPC as wellas under Section 138 of the Negotiable Instruments Act. Another aspect which clarifies this situation is that in a trialonly under Section 138 of the Negotiable Instruments Act Court can notconvict a person for fraud or misappropriation although the liability may bearising from entrustment of the amount itself as well. The limited scope oftrial and punishment for Section 138 of the Negotiable Instruments Act isthe punishment for dishonor of the cheque. If the argument of learnedcounsel for the petitioner is accepted then the offence under Section 406 or120 B IPC or for that matter Section 420 IPC are liable to go unpunished despite the same having been committed in the open glare of law. Although the learned counsel for the petitioner has relied uponthe judgment of the Hon ble Supreme Court in the case of G.Sagar Suri(supra) however that judgment has not laid down as a matter of precedent that once a complaint is filed under Section 138 A of the Negotiable on 02 08 CRM M 31873 20188Instruments Act then no FIR under any circumstances be filed or carriedon against the accused for an offence under Sections 406 420 IPC or underSection 120 B IPC. This judgment is distinguishable on the facts of thepresent case. A bare perusal of the judgment shows that this judgment wasrendered by the Hon ble Supreme Court in the facts and circumstances ofthat case. Entire family of the accused was sought to be involved in thecrime. In that case the accused had even retired from the company as aDirector the Police had not filed challan against the accused and there waseven difference of names of the persons mentioned in the FIR. Otherwise the judgment gives an indication that Section 420 and 406 IPC could havebeen added in the complaint filed under Section 138 of the NegotiableInstruments Act. Therefore the Hon ble Supreme Court observed that once for the same grievance the petitioner in that case has lodged complaintunder Section 138 of the Negotiable Instruments Act then in the name ofseparate prosecution he has no reason or occasion to harass the entirefamily. In the present case it is clear from the record that the case underSections 420 and 406 IPC was initiated against the firm M s AstroSuppliers and its authorised agent Hasan Ahmed. The present petitioner isfound involved in the case by police as participant in the conspiracy sincethe present petitioner received certain goods supplied by the complainantthrough Hasan Ahmed. This aspect has been duly supported by the FinalReport filed by the Police under Section 173 Cr.P.C.In any case it is not a stage where the present petitioner isbeing held finally guilty either in the FIR case or in the complaint case. Ifthe petitioner is not involved in any conspiracy he will have every occasionto get his name cleared at several stages by showing to the Court that he is on 02 08 CRM M 31873 20189not involved in any conspiracy. If he succeeds in showing to the Court thatit was a distinct and pure business transaction between the complainant andthe present petitioner then of course it would be only the complaint casewhich shall be effective. But till then the material collected by the Policejustifies the involvement of the present petitioner in conspiracy ofcommitting offence under Sections 420 406 IPC as well. This Court doesnot find any factual basis either to terminate the proceedings midway at thisstage. The next argument of the learned counsel that the FIR case ishit by protection against Double Jeopardy is also without any substance.Article 20 of the Consitution of India prohibits conviction of person twicefor the same offence and not for separate and distinct offences. Similarly Section 300 of Cr.P.C. prohibits prosecution and conviction of a personagain only after such person is tried and convicted or acquitted of the saidoffence once. None of the above is the situation in the present case. So theprotection against double jeopardy is not even remotely attracted in thepresent case. In view of the above this Court does not find any ground toquash the FIR against the present petitioner. Dismissed. 27th July 2018[RAJBIR SEHRAWAT]Shivani Kaushik JUDGEWhether speaking reasonedYes NoWhether ReportableYes No

L.D. JAIKWAL Vs. STATE OF U.P.

No Judge can take a decision which does not displease one side or the other The appellant was a senior advocate. He was required To appear before the Special Judge to make his submission on the question of sentence to be imposed upon his client who was convicted for an offence under s.5(2) of the Prevention of Corruption Act, 1947. As he appeared in a shirt and trouser outfit and not in Court attire, the Judge asked him to appear in the prescribed formal attire for being heard in his professional capacity.The appellant took umbrage and left the Court. Some other advocate appeared in the matter and the accused having being found guilty of the charge of corruption the Judge imposed a sentence of four years R.I. The appellant made a written application to the Judge couched in scurrilous language making the imputation that the Judge was a ’corrupt Judge’ and added that he was ’contaminating the seat of justice’; and forwarded copies of the application, without occasion or need to the Administrative Judge, Chief Secretary and other authorities.The High Court initiated contempt proceedings, found the appellant guilty of having committed criminal contempt under s. 2(c)(1) of the Contempt of Courts Act, 1971 and after affording full opportunity of hearing, imposed a sentence of simple imprisonment for one week and a fine of Rs. 500. Hence the present appeal. The appellant was a senior advocate. He was required To appear before the Special Judge to make his submission on the question of sentence to be imposed upon his client who was convicted for an offence under s.5(2) of the Prevention of Corruption Act, 1947. As he appeared in a shirt and trouser outfit and not in Court attire, the Judge asked him to appear in the prescribed formal attire for being heard in his professional capacity. The appellant took umbrage and left the Court. Some other advocate appeared in the matter and the accused having being found guilty of the charge of corruption the Judge imposed a sentence of four years R.I. The appellant made a written application to the Judge couched in scurrilous language making the imputation that the Judge was a ’corrupt Judge’ and added that he was ’contaminating the seat of justice’; and forwarded copies of the application, without occasion or need to the Administrative Judge, Chief Secretary and other authorities. The High Court initiated contempt proceedings, found the appellant guilty of having committed criminal contempt under s. 2(c)(1) of the Contempt of Courts Act, 1971 and after affording full opportunity of hearing, imposed a sentence of simple imprisonment for one week and a fine of Rs. 500. Hence the present appeal. ISSUE BEFORE THE COURT: Written apology tendered to Judge ’as directed by the Supreme Court under contempt of court proceeding sufficient to set aside conviction by High Court? RATIO OF THE COURTConsiderations regarding maintenance of the independence of the judiciary and the morale of the Judges demand that the appellant should not escape with impunity on the mere tendering of an apology which in any case does not wipe out the mischief. If such a apology were to be accepted, as a rule, and not as an exception, it would virtually be tantamount to issuing a license to scandalize courts and commit contempt of court with impunity. The High Court was justified in imposing a substantive sentence and the said sentence cannot be said to be excessive or out of proportion.No Judge can take a decision which does not displease one side or the other. By the very nature of his work he has to decide matters against one or other of the parties. If the fact that he renders a decision which is resented to by a litigant or his lawyer were to expose him to such a risk, it will sound the death knell of the institution. A line has therefore to be drawn some where, some day, by some one. That is why the Court is impelled to act (rather than merely sermonize) much as the Court dislikes imposing punishment whilst exercising the contempt jurisdiction, which no doubt has to be exercised very sparingly and ’with circumspection.An attitude of unmerited leniency cannot be adopted at the cost of principle and at the expense of the Judge who has been scandalized. To pursue a populist line of showing indulgence is not very difficult in fact it is more difficult to resist the temptation to do so rather than to adhere to the mail studded path of duty. Institutional perspective demands that considerations of populism are not allowed to obstruct the path of duty.In the instant case, the appellant sought to justify his conduct before the High Court on the ground of the treatment alleged to have been meted out to him by the Special Judge. No remorse was felt. No sorrow was expressed. No apology was offered: He expressed his sorrow only before this Court, saying that he had lost his mental balance, and was granted an opportunity to tender an apology. He appeared before the Special Judge and tendered a written apology indicating that he was doing so: “as directed by the Hon’ble Supreme Court.” This circumstance shows it was a ’paper’ apology, and that the expression of sorrow came from his pen, not from his heart. It is one thing to “say” sorry-it is another to “feel” sorry. This Court cannot subscribe to the ’slap-say sorry-and forget’ school of thought in administration of contempt jurisdiction. Considerations regarding maintenance of the independence of the judiciary and the morale of the Judges demand that the appellant should not escape with impunity on the mere tendering of an apology which in any case does not wipe out the mischief. If such a apology were to be accepted, as a rule, and not as an exception, it would virtually be tantamount to issuing a license to scandalize courts and commit contempt of court with impunity. The High Court was justified in imposing a substantive sentence and the said sentence cannot be said to be excessive or out of proportion. No Judge can take a decision which does not displease one side or the other. By the very nature of his work he has to decide matters against one or other of the parties. If the fact that he renders a decision which is resented to by a litigant or his lawyer were to expose him to such a risk, it will sound the death knell of the institution. A line has therefore to be drawn some where, some day, by some one. That is why the Court is impelled to act (rather than merely sermonize) much as the Court dislikes imposing punishment whilst exercising the contempt jurisdiction, which no doubt has to be exercised very sparingly and ’with circumspection. An attitude of unmerited leniency cannot be adopted at the cost of principle and at the expense of the Judge who has been scandalized. To pursue a populist line of showing indulgence is not very difficult in fact it is more difficult to resist the temptation to do so rather than to adhere to the mail studded path of duty. Institutional perspective demands that considerations of populism are not allowed to obstruct the path of duty. In the instant case, the appellant sought to justify his conduct before the High Court on the ground of the treatment alleged to have been meted out to him by the Special Judge. No remorse was felt. No sorrow was expressed. No apology was offered: He expressed his sorrow only before this Court, saying that he had lost his mental balance, and was granted an opportunity to tender an apology. He appeared before the Special Judge and tendered a written apology indicating that he was doing so: “as directed by the Hon’ble Supreme Court.” This circumstance shows it was a ’paper’ apology, and that the expression of sorrow came from his pen, not from his heart. It is one thing to “say” sorry-it is another to “feel” sorry. This Court cannot subscribe to the ’slap-say sorry-and forget’ school of thought in administration of contempt jurisdiction. DECISION HELD BY COURT: Appeal was accordingly dismissed.

Vs STATE OF U.P DATE OF JUDGMENT17 05 1984 THAKKAR M.P.833 1984 SCC 405 1984 SCALE (1 Advocate making written application couched in scurrilous language Imputation Judge ’a corrupt Judge’ ’and contaminating the seat of justice’ High Court convicting and sentencing advocate for contempt of Court appeal to Supreme Court Written apology tendered to Judge ’as directed by the Supreme Court’ Whether sufficient to set aside conviction by The appellant was a senior. advocate. He was required to appear before the Special Judge to make his submission on the question of sentence to be imposed upon his client who was convicted for an offence under s.5(2) of the Prevention of Corruption Act 1947. As he appeared in a shirt and trouser outfit and not in Court attire the Judge asked him to appear in the prescribed formal attire for being heard in his professional capacity. The appellant took umbrage and left the Court. Some other advocate appeared in the matter and the accused having being found guilty of the charge of corruption the Judge imposed a sentence of four years R.I The appellant made a written application to the Judge couched in scurrilous language making the imputation that the Judge was a ’corrupt Judge’ and added that he was ’contaminating the seat of justice’ and forwarded copies of the application without occasion or need to the Administrative Judge Chief Secretary and other authorities The High Court initiated contempt proceedings found the appellant guilty of having committed criminal contempt under s. 2(c)(1) of the Contempt of Courts Act 1971 and after affording full opportunity of hearing imposed a sentence of simple imprisonment for one week and a fine of Dismissing the Appeal HELD: 1. Considerations regarding maintenance of the independence of the judiciary and the morale of the Judges demand that the appellant should not escape with impunity on the mere tendering of an apology which in any case. does not wipe out the mischief. If such a apology were to be accepted as a rule and not as an exception it would virtually be tantamount to issuing a ’licence’ to scandalize courts and commit contempt of court with impunity. The High Court was justified in imposing a substantive sentence and the said sentence cannot be said to be excessive or out of proportion.[838E 837E 838F No Judge can take a decision which does not displease one side or the other. By the very nature of his work he has to decide matters against one or other of the parties. If the fact that he renders a decision which is resented to by a litigant or his lawyer were to expose him to such a risk it will sound the death knell of the institution. The day must be dreaded when a Judge cannot work with independence by reason of the fear that a disgruntled member of the Bar can publicly humiliate him and heap disagree on him with impunity if any of his orders or the decision rendered by him displeases any of the Advocates appearing in the matter A line has therefore to be drawn some where some day by some one. That is why the Court is impelled to actmuch as the Court dislikes imposing punishment whilst exercising the contempt jurisdiction which no doubt has to be exercised very sparingly and ’with circumspection.of the Prevention of Corruption Act by the Court The learned Advocate appeared in a shirt and trouser outfit in disregard of the rule requiring him to appear only in Court attire when appearing in his professional capacity The learned Judge asked him to appear in the prescribed formal attire for being heard in his professional capacity. The learned Advocate apparently took umbrage and left the Court. Some other Advocate appeared on behalf of accused who had been found guilty of a charge of corruption. The learned Judge imposed a sentence of 4 years’ R.I. which may have been considered to be on the high side. The matter in that case could have been carried to the High Court by way of an appeal both on the question of conviction as also on the question of sentence. But so far as the Court of the Special Judge was concerned as the judgment had been pronounced and nothing more remained to be done by that Court the matter should have rested there. The appellant a senior Advocate of long standinghowever made a written application to the learned Special Judge couched in scurrilous. language making the imputation that the Judge was a "corrupt Judge" and adding that he was contaminating the seat of justice". A threat was also held out that a complaint was being lodged to higher authorities that he was corrupt and did not deserve to be retained in service. The offending portion may better be quoted "I am making a complaint against you to the highest authorities in the country that you are corrupt and do not deserve to be retained in service The earlier people like you are bundled out the better for us all As for quantum of sentence I will never bow down before you. You may award the maximum sentence. Any way you should feel ashamed of yourself that you are contaminating the seat of justice There is no known provision for making such an application after a matter is disposed of by a Judge. Nor was any legal purpose to be served by making such an Obviously application was made to terrorize and harass the Judge for imposing a sentence which perhaps be considered to be on the high side whether or not it was really so was for the higher Court to decide As pointed out earlier it was however not permissible to adopt a course of intimidation in order to frighten the Judge. His malicious purpose in making the application is established by another tell tale circumstance by forwarding copy of this application without any occasion or need for it to several authorities and dignitaries 1. Administrative Judge Allahabad for favour of requisitioning case file S.T. No. 2 from Dehradun and scanning through the fasts 2. Chief Secretary Uttar Pradesh Government Lucknow 3. Director Vigilance Commission U.P. Lucknow 4. Prime Minister Secretariat Delhi 5. State Counsel Shri Pooran Singh Court of Shri V.K. Agarwal Dehradun 6. Shri D. Vira I.C.S. Chairman Indian Police Commission Delhi 7. President Bar Association Dehradun 8. The Hon’ble Chief Justice of Bharat The High Court of Allahabad initiated contempt proceedings found the appellant guilty of having committed criminal contempt under Section 2(c)(1) of the Contempt of Courts Act 1971 after affording him full opportunity of hearing and imposed a sentence of S.I for 1 week and a fine of Rs. 500 much as the Court dislikes imposing punishment whilst exercising the contempt jurisdiction which no doubt has to be exercised very sparingly and with circumspection. We do not think that we can adopt an attitude of unmerited leniency at the cost of principle and at the expense of the Judge who has been scandalized. We are fully aware that it is not very difficult to show magnanimity when some one else is the victim rather than when oneself is the victim. To pursue a populist line of showing indulgence is not very difficult in fact it is more difficult to resist the temptation to do so rather than to adhere to the nail studded path of duty. Institutional perspective demands that considerations of populism are not allowed to obstruct the path of duty. We therefore cannot take a lenient or indulgent view of this matter. the day must be dreaded when a Judge cannot work with independence by reason of the fear that a disgruntled member of the Bar can publicly humiliate him and heap disgrace on him with impunity if any of his orders or the decision rendered by him displeases any of the Advocates appearing in the matter We firmly believe that considerations regarding maintenance of the independence of the judiciary and the morale of the Judges demand that we do not allow the appellant to escape with impunity on the mere tendering of an apology which in any case does not wipe out the mischief We are of the opinion that the High Court was therefore justified in imposing a substantive sentence. And the sentence imposed cannot be said to be excessive or out of Appeal is accordingly dismissed N.V.K. Appeal dismissed

The purpose of a Land Revenue Code is to prevent the exploitation of a tribal in the hands of a non-tribal: Bombay High Court

Section 36A of the Maharashtra Land Revenue Code aims to protect the interest of tribals from being exploited at the hands of a non-tribal. A Collector authorized to grant permit cannot misuse this provision on grounds that are not substantial. A division bench comprising of Justice SJ Kathawalla and Prithviraj Chavan while adjudicating the matter in Kishan Songya Bangara v. The State of Maharashtra & Ors; [WRIT PETITION (ST) NO. 98188 OF 2020] dealt with the issue of exploitation of tribals during dire crisis of poverty. The petitioner stated that he and his other family members are tribals and owners of a certain piece of land. Since they were in dire need of money, they were looking for a purchaser who interested in purchasing the piece of land they owned.  There is an embargo on the sale of land belonging to tribals, i.e., if a tribal wants to sell his land to a non-tribal, he is required to obtain permission from the Collector and/or State Government. The petitioner made an application to the respondent, who was the concerned collector to obtain the necessary sanction. The respondent kept the application of the petitioner on hold, despite several requests to grant the petitioner sanction. A purchaser was eventually found who was ready to buy the petitioner’s piece of land. However, the required permit was not granted to the petitioner, in response to which the petitioner filed a case. The petitioner claimed that his family is very large and three sisters of the Petitioner are of marriageable age and in view of the weak financial condition of the Petitioner, he is not in a condition to perform their marriage. There are also school going children to whom the Petitioner wants to give better education but due to his weak financial condition, the Petitioner and his family members are not in a position to do so. Similarly, there are senior citizens in his family who require medical attention, but again because of his weak financial condition, the Petitioner and his family members are not in a position to provide the same to them. All these facts were brought to the notice of the Respondents, which the Respondents have not taken into consideration.

on 10 05 2021 on 22 03 1 21 WP 98188 2020 Final.docIN THE HIGH COURT OF JUDICATURE AT BOMBAYCIVIL APPELLATE JURISDICTIONWRIT PETITIONNO. 98188 OF 2020Kisan Songya Bangara )Age : 30 years Occupation : Agriculturist )Residing at Valsind Taluka Bhiwandi )District Thane.)…PetitionerVersus1. The State of Maharashtra )Through Secretary Revenue and ForestDepartment )Mantralaya Mumbai 400 032)2. The Collector Thane)3. The Deputy Collector Collector Ofce Thane)4.The Divisional Commissioner )Konkan Division Konkan Bhavan CBD Belapur )Navi Mumbai 400 614)5. Mumbai Metropolitan Regional Development )Authority having its ofce at Bandra Kurla Complex )BandraMumbai 400 051)6. Shri Vijendra Shamlal Sharma )PA Kanchan P Dhuri on 10 05 2021 on 22 03 2 21 WP 98188 2020 Final.docAge : Adult Occupation : Business )Residing at New Davashish Building Eastern Express)Highway Thane. )…Respondents…......Mr. N.V. Walawalkar Senior Advocate alongwith Mr. Surel Shah and Mr. AmeySawant for the Petitioner.Mr. Suresh Sabrad alongwith Ms. Neha Parte for Respondent No.6.Mr. S.B. Kalel AGP for the State.…......CORAM : S.J. KATHAWALLA ANDPRITHVIRAJ K. CHAVAN JJ. DATED : APRIL 20 2021.JUDGMENT ::1.By the above Writ Petition the Petitioner interalia seeks the followingrelief :“(b)That by an appropriate writ order or direction this Hon’bleCourt be pleased to quash and set aside the letter dated 28.10.2020issued by the Respondent No.2 Collector Thane thereby refusing togrant prior approval u s. 36A of the Maharashtra Land Revenue Code 1966 as well as the letter dated 5.10.2020 issued by the Respondent No.1herein to the Respondent No.2 thereby intimating that prior approvalu s. 36A of the Maharashtra Land Revenue Code 1966 cannot begranted to the Petitioner and further be pleased to direct the RespondentNos.1 and 2 to grant its prior approval u s. 36A of the Maharashtra LandRevenue Code 1966 for disposing of his land bearing Survey No.46 2 admeasuring 12.1 Ares and Survey No.46 3 admeasuring 61.7 Ares both situate at Mouje Valshind Taluka Bhiwandi District Thane.”PA Kanchan P Dhuri on 10 05 2021 on 22 03 3 21 WP 98188 2020 Final.doc2.By consent of the Parties the above Petition is taken up for fnal hearingat the stage of admission.3.The brief facts in the matter are set out hereunder :3.1.According to the Petitioner he and his other family members are tribalsand owners of land bearing Survey No.46 2 admeasuring 12.1 Ares and SurveyNo.46 3 admeasuring 61.7 Ares both situate at Mouje Valshind Taluka Bhiwandi District Thanefrom the Collectorand or the State Government. 3.5.On 14th July 2014 the Petitioner made an Application to the RespondentNo.2 Collector Thane for obtaining the necessary sanction.3.6.After the said Application dated 14th July 2014 was made by thePetitioner the Respondent No.2 Collector forwarded the same to the concernedTahsildar to carry out an enquiry and submit a report. The Tahsildar ThanePA Kanchan P Dhuri on 10 05 2021 on 22 03 4 21 WP 98188 2020 Final.docforwarded his Report to the Respondent No.2 Collector on 29th December 2014.The Deputy Collector Thane also forwarded his Report dated 1st January 2015 to theRespondent No.2 Collector.3.7.According to the Petitioner inspite of receipt of the Reports asaforestated the Respondent No.2 did not proceed further and kept the Application ofthe Petitioner pending. On several occasions the Petitioner and the representative ofRespondent No.6 had visited the Ofce of the Respondent No.2 Collector. However no steps whatsoever were taken by the Respondent No.2 Collector to expedite thedecision on the Application of the Petitioner and instead all along only evasive replieswere given by the Ofce of the Respondent No.2 Collector.3.8.In the above circumstance on 17th January 2019 Respondent No.6 proposed purchaser made an Application to the Respondent No.2 Collector pointing out that the land bearing Survey Nos.46 2 and 46 3 as regards whichpermission for sale was sought by the Petitioner are shown under reservation byRespondent No.5 Mumbai Metropolitan Regional Development Authority(‘MMRDA’). The Respondent No.6 informed the Respondent No.2 Collector thatsince the said Land is under reservation the Respondent No.6 is ready and willing topurchase the same on ‘as is where is’ basis and that in future the Respondent No.6 proposed purchaser would make use of the said Land as may be permitted by theRespondent No.5.PA Kanchan P Dhuri on 10 05 2021 on 22 03 5 21 WP 98188 2020 Final.doc3.9.Respondent No.2 Collector thereafter forwarded his Report toRespondent No.4 Divisional Commissioner Konkan Division Navi Mumbai on 12thFebruary 2019. In the said recommendation Respondent No.2 Collectorspecifcally mentioned that the Respondent No.6 vide his Application dated 17thJanuary 2019 had shown his readiness and willingness to purchase the said Land andput the same to such non agricultural use which would be permitted by RespondentNo.5.3.10.Thereafter Respondent No.4 Divisional Commissioner KonkanDivision issued a letter to the Respondent No.2 Collector stating therein that fromhis recommendation it was not clear for which particular non agricultural purpose thesaid Land would be put to use and whether such user would be permissible.3.11.Pursuant thereto Respondent No.3 Deputy Collector Thane issued aletter to the Petitioner and informed him that it was not clear as to for which non agricultural purpose the said Land would be used and whether such user would bepermissible.3.12.According to the Petitioner pursuant to the receipt of the Letter dated16th May 2019 Respondent No.6 personally met Respondent No.3 Deputy Collector Thane on 3rd June 2019 and informed him that since the said Land is shown underreservation Respondent No.6 is ready and willing to purchase the said Land on ‘as iswhere is’ basis and would also make use of the said Land as may be permitted byPA Kanchan P Dhuri on 10 05 2021 on 22 03 6 21 WP 98188 2020 Final.docRespondent No.5. Respondent No.6 also informed Respondent No.3 that on 17thJanuary 2019 itself the Respondent No.6 had made an Application and placed onrecord his readiness and willingness to purchase the said Land on ‘as is where is’ basisand to make use of the said Land as may be permitted by Respondent No.5.3.13.According to the Petitioner sometime in the frst week of October 2020 the Respondent No.6 was informed from the Ofce of the Respondent No.1 that sincethe said Land was under reservation for playground and that there was no access road hence permission under Section 36A could not be granted.3.14.Thereafter the Petitioner received a Letter dated 28th October 2020from Respondent No.2 Collector which is impugned herein whereunder thePetitioner was informed that the said Land is shown under reservation for playgroundvide Reservation No.PG 7 that there is no mention as to the purpose for which thesaid Land would be used there is no access road available to the said Land and assuch permission under Section 36A of the said Code cannot be granted.3.15.The above Letter dated 28th October 2020 was addressed to thePetitioner by the Respondent No.2 Collector based on the Letter issued byRespondent No.1 State of Maharashtra to Respondent No.2 Collector informingthe Respondent No.2 Collector that prior permission could not be granted for thevery same reasons mentioned in the above Letter dated 28th October 2020.3.16.The Petitioner has therefore fled the above Writ Petition praying for thePA Kanchan P Dhuri on 10 05 2021 on 22 03 7 21 WP 98188 2020 Final.docrelief set out in paragraph 1 above.4.In the Writ Petition the Petitioner has after setting out the above facts submitted as follows :4.1.That the reason behind not granting prior approval under Section 36A isin view of Rule 4 of the Maharashtra Land RevenueRules 1975ofSection 36 no occupancy of a tribal shall after the commencement of theMaharashtra Land Revenue Code and Tenancy LawsAct 1974 be transferred in favour of any non tribal by way of salegift exchange mortgage lease or otherwise except on the application of such non tribal and except with the previoussanctionAct 1974 it isPA Kanchan P Dhuri on 10 05 2021 on 22 03 14 21 WP 98188 2020 Final.docnoticed that any occupancy has been transferred in contravention of sub sectionthe Collector shall notwithstanding anything contained in anylaw for the time being in force either suo motu or on an application madeby any person interested in such occupancy or on a resolution of theGram Sabha in Scheduled Areas within thirty years from the 6th July 2004 hold an inquiry in the prescribed manner and decide the matter.(5)Where the Collector decides that any transfer ofoccupancy has been made in contravention of sub sectionhe shalldeclare the transfer to be invalid and thereupon the occupancy togetherwith the standing crops thereon if any shall vest in the StateGovernment free of all encumbrances and shall be disposed of in suchmanner as the State Government may from time to time direct.(6)Where an occupancy vested in the State Governmentunder sub sectionis to be disposed of the Collector shall give noticein writing to the tribal transferor requiring him to state within 90 daysfrom the date of receipt of such notice whether or not he is willing topurchase the land. If such tribal transferor agrees to purchase theoccupancy then the occupancy may be granted to him if he pays theprescribed purchase price and undertakes to cultivate the land personally so however that the total land held by such tribal transferor whether asowner or tenant does not as far as possible exceed an economic holding.Explanation For the purpose of this Section the expression“economic holding” means 6.48 hectaresof jirayat land or 3.24hectaresof seasonally irrigated land or paddy or rice land or1.62 hectaresof perennially irrigated land and where the landheld by any person consists of two or more kinds of land the economicholding shall be determined on the basis of one hectare of perenniallyirrigated land being equal to 2 hectares of seasonally irrigated land orpaddy or rice land or 4 hectares of jirayat land.”PA Kanchan P Dhuri on 10 05 2021 on 22 03 15 21 WP 98188 2020 Final.doc11.Rule 4 of the Maharashtra Land RevenueRules 1975. Sub clauseof clauseof Rule 4 reads thus :“4.Sanction of Collector under Section 36A for transfer sections is one of the majoritems of our national goalsin connection withsuch non agricultural purpose implies that the proposed user is genuine and does notplay any fraud in this regard. The non agricultural user proposed could be any so longas it is permissible in law having regard to the prevailing planning laws operating inthe locality and the proposal of the transferee for such user must be real and not asubterfuge which is all that the Collector and the State Government is required toensure. As of now i.e. so long as the reservation stands the said Land can only beused for a playground the purchaser may develop it as a playground or allow the sameto be acquired by the State for such playground. If and when the acquisition isdropped the said Land may be used for any permissible non agricultural purpose. TheRespondent No. 6 Purchaser herein has therefore not only given an undertaking thathe will purchase the said Land on ‘as is where is’ basis but in view of the said Landbeing under reservation as of now has also given an undertaking that he would makeuse of the said Land and carry out such non agricultural use as would be permitted byRespondent No. 5 MMRDA i.e. the Planning Authority. These undertakings givenPA Kanchan P Dhuri on 10 05 2021 on 22 03 20 21 WP 98188 2020 Final.docby the Respondent No. 6 Purchaser ensure that the purpose sought to be achievedby the Legislature through Section 36A read with Rule 4 of the said Rules is notdefeated in any manner whatsoever and the undertakings may infact form part of thepermission sought by the Petitioner. In fact not granting approval sanction to thePetitioner to sell the said Land will not only compel the Petitioner and his familymembers to live in penury for all times to come but will destroy his family since dueto fnancial problems his sisters will remain unmarried his children will not be able toreceive education as desired by them and the senior members of his family will bedeprived of the required medical attention treatment. The impugned Lettersconveying rejection of the Application of the Petitioner to sell the said Land on theaforestated grounds which lacks legal basis renders the Petitioner and his familymembers completely helpless and unable to strive towards their economic welfare andupliftment as also towards a bright and better future.20.One more fact which is pointed out by the Petitioner and which isdisturbing is that in similar cases the State Government has granted permissions tosell tribal lands to non tribals despite such lands being reserved for public purpose.Such orders clearly establish discrimination on the part of the State Government without any rational basis whilst granting rejecting sanction approval underSection 36A of the Code. Some of such Orders are annexed at Pages 103 and 107 ofthe Afdavit in Rejoinder fled by the Petitioner in the above Writ Petition. ThePA Kanchan P Dhuri on 10 05 2021 on 22 03 21 21 WP 98188 2020 Final.docRespondents have neither fled any response to the said Afdavit in Rejoinder norhave they applied for time to fle their response to the same.21.For the aforestated reasons we hold that we see no reason for theCollector or the State Government to have refused permission under Section 36A inthis case either from the point of view of the transferor tribal or from the point of viewof the duties of the transferee non tribal. The above Writ Petition is allowed in termsof prayer clausewill use the said Land only for non agricultural purpose is accepted. The permission to sell the said Land in favour ofRespondent No. 6 shall be granted in view of the said undertakings and the same shallbe included in the permission sanction letter. The Writ Petition is accordinglydisposed of.( PRITHVIRAJ K. CHAVAN J. )( S.J. KATHAWALLA J. ) PA Kanchan P Dhuri

Bail granted to the petitioner by court: Karnataka High Court

Criminal petition filed under section 438 of Cr.P.C (Direction for grant of bail to person apprehending arrest) to enlarge the petitioner on bail for the offence punishable under section 307( Attempt to murder), 323 (Punishment for voluntarily causing hurt), 324 ( Volunteering causing hurt by dangerous or means), 506( Punishment for criminal intimidation) read with 34 of ( Act done by several persons in furtherance of common intention) by the petitioner. And the petition was allowed by the High court of Karnataka through the learned bench led by the Honorable MR. Justice H P Sandesh in the case of MR. Nagaraj vs state of Karnataka (criminal petition no. 451/2022) on 25th January 2022. Facts of the case are that when the complainant’s husband was returning, at that time, the petitioner along with other accused persons, inflicted injury on the head of her husband and inflicted injury with steel rod on the hands and legs and when he screamed at the spot, this petitioner again pulled him and assaulted with steel rod and all of them joined together and assaulted him. Arguments presented by the learned counsel appearing on behalf of the petitioner that petitioner has been falsely implicated in the case and also the injuries are simple in nature and only with an intention to keep the petitioner behind the bar, Section 307 of IPC is invoked and no such ingredients are made out. Arguments presented by the learned High court government pleader appearing on behalf of the respondent state that the victim had sustained injuries and he was taken to NIMHANS Hospital and fresh injuries and contusions were found, but no fracture on the head. After hearing both the counsels and looking into the contents of the case presented before the hon’ble court by the petitioner that the allegation which are made that the victim was assaulted with machete on the head, but only contusions were found on the head and scalp and there is no fracture. Having taken note of the gravity of the offence and the nature of injuries, which are simple in nature in which bail can grant to the petitioner. Then petition was allowed by the court on certain grounds such as: The petitioner shall surrender himself before the Investigating Officer within ten days from the date of receipt of a certified copy of this order and shall execute a personal bond for a sum of Rs.2,00,000/- with two sureties for the like-sum to the satisfaction of the concerned Investing Office Officer; The petitioner shall not indulge in hampering the investigation or tampering the prosecution witnesses; The petitioner shall co-operate with the investigating Officer to complete the investigation and he shall appear before the Investigating Officer, as and when called for; The petitioner shall not leave the jurisdiction of the Investigating Officer without prior permission till the charge-sheet is filed or for a period of three months, whichever is earlier; The petitioner shall mark his attendance once in a month i.e., on 30th of every month between 10.00 a.m. and 5.00 p.m., before the investigating Officer for a period of three months or till the charge-sheet is filed, whichever is earlier. Click here to read the judgement Judgement Reviewed by Sugam Anand Mishra

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JANUARY 2022 THE HON BLE MR. JUSTICE H.P. SANDESH CRIMINAL PETITION NO.451 2022 ...PETITIONER BY SRI NAUSHAD PASHA ADVOCATE) BETWEEN: MR. NAGARAJ S O SHANKARAPPA AGED 25 YEARS R AT AMBEDKAR NAGAR RAMAMURTHY NAGAR BENGALURU 560016. STATE OF KARNATAKA BY K.R.PURAM POLICE STATION BENGALURU 560036. REPRESENTED BY S.P.P HIGH COURT OF KARNATAKA HIGH COURT BUILDING BANGALORE 560001. ...RESPONDENT BY SRI VINAYAKA V.S. HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 438 OF CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN THE EVENT OF HIS ARREST IN CR.NO.417 2021 REGISTERED BY K.R.PURAM POLICE STATION BENGALURU FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 307 323 324 506 READ WITH 34 OF IPC PENDING ON THE FILE OF X ADDL.C.M.M. MAYO HALL THIS CRIMINAL PETITION COMING ON FOR ORDERS THROUGH VIDEO CONFERENCE THIS DAY THE COURT MADE THE O R D E R This petition is filed under Section 438 of Cr.P.C. praying this Court to enlarge the petitioner on bail in the event of his arrest in respect of Crime No.417 2021 registered by the K.R.Puram Police Station Bengaluru for the offence punishable under Sections 307 323 324 506 read with 34 of IPC. 2. Heard the learned counsel for the petitioner and the learned High Court Government Pleader appearing for the respondent State. 3. The factual matrix of the case is that when the complainant’s husband was returning at that time the petitioner along with other accused persons inflicted injury on the head of her husband and inflicted injury with steel rod on the hands and legs and when he screamed at the spot this petitioner again pulled him and assaulted with steel rod and all of them joined together and assaulted him. The learned counsel for the petitioner would submit that this petitioner has been falsely implicated in the case and also the injuries are simple in nature and only with an intention to keep the petitioner behind the bar Section 307 of IPC is invoked and no such ingredients are made out. Per contra the learned High Court Government Pleader appearing for the respondent State would submit that the victim had sustained injuries and he was taken to NIMHANS Hospital and fresh injuries and contusions were found but no fracture on the head. Having heard the learned counsel for the petitioner and the learned High Court Government Pleader appearing for the respondent State and looking into the contents of the complaint the allegation is made that the victim was subjected to assault with machete on the head but only contusions were found on the head and scalp and there is no fracture. Having taken note of the gravity of the offence and the nature of injuries which are simple in nature it is a fit case to exercise the discretion under Section 438 of Cr.P.C. In view of the discussions made above I pass the The petition is allowed. Consequently the petitioner shall be released on bail in the event of his arrest in connection with Crime No.417 2021 registered by the K.R.Puram Police Station Bengaluru for the offence punishable under Sections 307 323 324 506 read with 34 of IPC subject to the following conditions: The petitioner shall surrender himself before the Investigating Officer within ten days from the date of receipt of a certified copy of this order and shall execute a personal bond for a sum of Rs.2 00 000 with two sureties for the like sum to the satisfaction of the concerned Investigating The petitioner shall not indulge in hampering the investigation or tampering the prosecution iii) The petitioner shall co operate with Investigating Officer investigation and he shall appear before the Investigating Officer as and when called for. iv) The petitioner shall not leave the jurisdiction of Investigating Officer without prior permission till the charge sheet is filed or for a period of three months whichever is earlier. v) The petitioner shall mark his attendance once in a month i.e. on 30th of every month between 10.00 a.m. and 5.00 p.m. before the Investigating Officer for a period of three months or till the charge sheet filed whichever is earlier. Sd

The right to wages is an integral part of the right to livelihood and is entitled to protection under Art.21: Orissa High Court

The legislative scheme of the Mahatma Gandhi National Rural Employment Guarantee Act places the “Right to Livelihood” at a higher pedestal than a mere legal right by ensuring that a minimum of 100 days of employment to one person in the family is given so that the members of the family can take care of their bare minimum requirement for existence. The judgment was passed by The High Court of Orissa in the case of Purna Chandra Sahoo V. State of Odisha and Others [W.P.(C) No. 17859 of 2013] by a Single Bench consisting of Hon’ble Shri Justice B.R.Sarangi. The petitioner seeks, through this writ petition, instructions for the opposers in the context of the exercise of excavation work of the pool as per the “Mo Pokhari” regime of the government of Odisha, to pay the employers’ cards, under the National Rural Employment Guarantee Scheme (NREGS). Learned Counsel for the petitioner contended that due to negligence on the part of the opposite parties, the petitioner has been deprived of his legitimate claim of Rs.50,000 as per the work order issued under the scheme of “Mo Pokhari” for engagement of job contract cardholders to excavate the pond. It is further contended that due to the inactiveness of the opposite parties, circumstances were created to frustrate the objectives behind the enactment of the National Rural Employment Guarantee Act, 2005, which provides guaranteed employment to rural poor to earn their livelihood, thereby, he seeks interference of this Court for giving direction to pay the dues to the job cardholders as per the work order. Learned Counsel for the respondent, contended that the project in question has not been executed at the Block level but the Gram Panchayat Level and that the said project was not completed within the time stipulated in the work order and no paraphernalia like preparation of estimate by the concerned Junior Engineer and its administrative approval by the competent authority, demand for work by the job seekers in form allotment of work to the job seekers, Thereby, in absence of maintenance of muster roll, showing engagement of job seekers, the claim made by the petitioner cannot sustain and thus he seeks for dismissal of the writ petition. While making the judgment the court referred to the judgment of the Supreme Court Maneka Gandhi v. Union of India, where it was held that “the fundamental rights represent the basic values cherished by the people of their country since Vedic times and they are calculated to protect the dignity of the individual and create conditions in which every human being can develop his personality to the fullest extent.”

ORISSA HIGH COURT: CUTTACK W.P.(C) No. 178513 In the matter of an application under Articles 226 and 227 of the Constitution of India. Purna Chandra Sahoo State of Odisha and Others Opp. Parties Versus For Petitioner M s. Satyaranjan Mohapatra K.K. Jena and S.P. Swain Advocates For Opp. Parties : Mr. J. Katikia Addl. Government Advocate.P R E S E N T: THE HONOURABLE DR. JUSTICE B.R.SARANGI DR. B.R. SARANGI J. The petitioner by means of this writ petition seeks direction to the opposite parties to release payment to the job card holders under the National Rural Employment Guarantee Scheme on completion of the excavation work of a pond as per the “Mo Pokhari” scheme of the Government of Odisha within a stipulated period. The factual matrix of the case in hand is that the project “Mo Pokhari” is governed under the Mahatma Gandhi National Rural Employment Guarantee Act 2005 was enacted by the parliament. To achieve the avowed objectives different schemes have been prepared by the Government to provide rural employment to the poor. “Mo Pokhari” is one of such schemes evolved by the Government with an intention to provide jobs to the rural poor. Under the above scheme the petitioner was issued with an work order vide Annexure 1 on 04.04.2010 by the opposite party no.5 the Sarapanch Kahakalapada Gram Panchayat to start the work within a period of three days of its issuance i.e. from 04.04.2010 and to be completed by 14.06.2010. When the claim of payment was made the opposite party no.3 Project Director DRDA Jajpur conducted an enquiry by the Additional Project Director Additional Project Directorand the NRGS Coordinator. During the course of enquiry it was found that the work order for excavation of the pond of the petitioner under the scheme “Mo Pokhari” was issued by opposite party no.5 on 04.04.2010. The technical and financial sanction were approved in online mode on 15.05.2010 and the VLW had requested the BDO to issue 5 nos. of muster roll on 15.05.2010 without any request for work by the job seekers in the prescribed form C1. It was also revealed that an amount of Rs.27 000 was deducted from the cash book vide cheque no. 370391 dated 25.07.2010 though the work was not measured by the concerned Junior Engineer and check measured by the Asst. Engineer of the Block. Therefore the total amount was misappropriated by the concerned VLW Sarapanch and the GRS of Mahakalpada Gram Panchayat. In pursuance of such enquiry report the erring officials were issued notice to deposit the amount vide Block Office letter no.1180 dated 04.04.2013 followed by the reminder dated 08.05.2013. If due procedure prescribed under MGNREGA was not followed and no muster roll was maintained by the authorities for the purpose of approval vis à vis sanction the denial of release of amount is absolutely misconceived one. As it appears there was mismanagement on the part of the authority and therefore the petitioner has been deprived of getting his legitimate dues as has been claimed for execution of the work under the scheme “Mo Pokhari”. Admittedly an amount of Rs.27 000 was released but the same has not reached to the real job seekers rather it has been misappropriate by VLW GRS and Sarapanch. As such an amount of Rs.13 500 has been received from the VLW and steps have been taken for recovery of the balance amount from the concerned Sarapanch. There is no dispute that the work order was issued in favour of the petitioner pursuant to Annexure 1 and in response thereto the petitioner engaged labourers to get the work executed within the time stipulated and as a matter of fact technical and financial sanctions had been approved so far as the project is concerned on online basis on 15.05.2010. In regard to maintenance of procedure it is the VLW or the Sarapanch who has to do the same but inaction or negligence on the part of the said authority cannot disentitle the petitioner to get the benefit as claimed for the work executed pursuant to work order issued in Annexure 1. This is a serious matter where the very purpose of the MGNREGA has been frustrated due to laxity of the authority concerned as a result of which the poor job seekers have been deprived of their legitimate claim for the work done by them. The payments are made to the job seekers to earn their livelihood in rural areas. If the same is not paid within the time stipulated the objective of the MGNREGA will be frustrated. Therefore by taking some plea or other the benefit accrued has not been extended to the petitioner for the laches on the part of the authorities who are in channel of disbursement of wages as a result thereof the poor rural job seekers have been put to difficulties and untold miseries. As the avowed objective of the rural job seekers to get an employment for their livelihood has been frustrated it violates Article 21 of the Constitution of India which provides right to live life with dignity. If the rural job seekers have rendered their job they should be paid in time otherwise they will be deprived of their right to livelihood. The preamble “assures dignity of the individual”. The „right to life‟ including the right to „life with human dignity‟ would mean the existence of such a right up to the end of a natural life. In Samatha v. State of A.P. AIR 1997 SC 3297 the apex Court held that all those rights and aspect of life which would go to make a man‟s life complete and worth living would form part of right to life. In Maneka Gandhi v. Union of India 1978 SC 597 :1 SCC 248 the apex Court observed that the fundamental rights represents the basic values cherished by the people of their country since Vedic times and they are calculated to protect the dignity of the individual and create conditions in which every human being can develop his personality to the fullest extent. In Olga Tellis v. Bombay Municipal Corpn. AIR 1986 SC 180: 3 SCC 545 the apex Court observed “Right to Livelihood” has been held to be an integral part of Right to Life under Article. 21. In Narendra Kumar v. State of Haryana AIR 1995 SC 519 :4 SCC 460 the apex Court held that right to livelihood is an integral facet of the right to life. The apex Court in Dalmia CementLtd. v. UOI 1996) 10 SCC 104 even went to the extent observing that the right of agriculturists to cultivation has been held to be a part of their fundamental right to livelihood. In O. Konavalov v. Commander Coast Guard Region 2006) 4 SCC 620 the apex Court already held that the right of seamen to wages is an integral part of the right to livelihood and is entitled to protection under Art.21. In Centre of Environment and Food Security V. UOI 5 SCC 676 the apex Court held that the legislative scheme of the Mahatma Gandhi National Rural Employment Guarantee Act places the “Right to Livelihood” at a higher pedestal than a mere legal right by ensuring that a minimum of 100 days of employment to one person in the family is given so that the members of the family are able to take care of their bare minimum requirement for existence. In view of the settled position of law as discussed above non release of payment to job card holders rural job seekers affects their livelihood and right to live with dignity therefore violates Article 21 of the Constitution of India. In the present case admittedly an enquiry was conducted by the vigilance authority and on the basis of such enquiry report some of the officials have been put into task because of mismanagement of the funds and that itself cannot deprive the petitioner of getting his legitimate claim. For the foregoing legal and factual discussions this Court is of the considered view that the payment for the work which was executed pursuant to the work order dated 04.04.2010 in Annexure 1 should be paid to the petitioner by following due procedure in accordance with law as expeditiously as possible preferably within a period of two months from the date of communication of this order. Ordered accordingly. In the result the writ petition is allowed. No order to DR.B.R.SARANGI Orissa High Court Cuttack The 19th January 2021 Ajaya GDS

Ground to grand mandamus to the examination authorities cannot be determined by past considerations: High court of Delhi

Merely because as a matter of policy, if the respondents had granted relaxation in the past on account of change in examination pattern/syllabus, the same cannot be the basis to grant mandamus to the respondents to come out with a policy granting relaxation to the participants who had availed the last attempt or have crossed the upper age, as a matter of right This was held in the case of Rahul Kumar and Ors v Union of India, [W.P.(C) 2988/2021] by Hon’ble Justice Amit Bansal in the High Court of Delhi. The petitioners herein took part in Civil Services Examinations (CSE) various times from 2013 to 2015. They contended that the UPSC altered the pattern of the examination just a few weeks before the date of the examination in the aforesaid years. As a result, the preparation put in for the said examination by the petitioners for several months before had gone waste. In 2013, barely 80 days before the preliminary examinations were scheduled to be held, the syllabus of the mains examination was changed.  Instead of two optional subjects earlier, there was one optional subject of 500 marks and there were four compulsory papers of General Studies of 250 marks each, which included one newly, introduced paper of Ethics and one paper of Essay which was for 250 marks. The weightage of the interview was brought down to 275 marks. It is the case of the petitioners that they never got time to prepare for these changes. Similarly, changes were made in respect of the 2014 CSE which put them at a disadvantage. Again in 2015, UPSC changed the whole pattern of the preliminary examinations, barely three months before the preliminary examination was scheduled. Accordingly, the petitioners approached the Tribunal seeking a direction that they should be allowed a compensatory attempt to appear in UPSC examination at least one more time in 2021 or 2022 as a one-time relief. The O.A. was contested by the respondents stating that the petitioners have already exhausted all the attempts to take the CSE and have not been successful. It was further stated that the examinations were held long ago and selections were completed a long time back and, therefore, the petitioners cannot claim any relief at this stage The Court opinioned that the petitioners have failed to give a satisfactory explanation on the issue of delay and laches. The cause of action, if any, arose in their favour in the years 2013-2015, whereas they approached the Tribunal only in 2020. Making of representations to Members of Parliament and PMO would not justify the delay and laches on the part of the petitioners in pursuing their legal remedies. The petition was dismissed.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 05th March 2021 W.P.(C) 2988 2021 RAHUL KUMAR AND ORS Through: Mr.Rahul Kumar Advocate Petitioners UNION OF INDIAN AND ANR Through: Mr.Naresh Kaushik for UPSC. Respondents Mr. Rajesh Gogna CGSC with Mr.Srivats Kaushal Advocate for HON BLE MR. JUSTICE RAJIV SAHAI ENDLAW HON BLE MR. JUSTICE AMIT BANSAL VIA VIDEO CONFERENCING] AMIT BANSAL J.C.M. No.9045 2021Allowed subject to all just exceptions and as per extant Rules. The application stands disposed of. W.P.(C) 2988 2021 & C.M. No.9044 2021The present writ petition impugns the order dated 2nd March 2020 by the Central Administrative Tribunal Principal Bench in O.A. W.P.(C) 2988 2021 said O.A. No.607 2020. Vide the said order the Tribunal was pleased to dismiss the It is the case of the petitioners herein that they took part in Civil Services Examinations various times from 2013 to 2015. They contended that the UPSC altered the pattern of the examination just few weeks before the date of the examination in the aforesaid years. As a result the preparation put in for the said examination by the petitioners for several months before had gone waste. In 2013 barely 80 days before the preliminary examinations were scheduled to be held the syllabus of the mains examination was changed. Instead of two optional subjects earlier there was one optional subject of 500 marks and there were four compulsory papers of General Studies of 250 marks each which included one newly introduced paper of Ethics and one paper of Essay which was for 250 marks. Weightage of interview was brought down to 275 marks. It is the case of the petitioners that they never got time to prepare for these changes. Similarly changes were made in respect of the 2014 CSE which put them at a disadvantage. Again in 2015 UPSC changed the whole pattern of the preliminary examinations barely three months before the preliminary examination was scheduled. Accordingly the petitioners approached the Tribunal seeking a direction that they should be allowed a compensatory attempt to appear in UPSC examination at least one more time in 2021 or 2022 as a onetime relief. The O.A. was contested by the respondents stating that the petitioners have already exhausted all the attempts to take the CSE and have not been successful. It was further stated that the examinations were held long ago W.P.(C) 2988 2021 and selections were completed long time back and therefore the petitioners cannot claim any relief at this stage. The Tribunal dismissed the said O.A. on the grounds that the petitioners have approached the Tribunal belatedly and giving relief at this stage would lead to several complications. Lakhs of candidates who were not successful in the examinations held in those years would get an opportunity to appear again. 7. We have heard the counsel for the petitioners as well as the counsel for the respondents who appeared on advance notice. The counsel for the petitioners has contended that last minute change in the syllabus of the examination gravely affected the preparation of the petitioners for the examination. Therefore the petitioners should be granted one more opportunity to appear in the CSE. He argued that the petitioners never slept over their rights and that they wrote several letters to PMO and to Members of Parliament and they believed that their demand for compensatory attempt would be granted. It was further contended that in respect of 2011 CSE when last minute changes to the syllabus were made the Government agreed to allow a compensatory attempt to be given to the candidates in the year 2015. Lastly it was contended that the last minute changes to syllabus made by the respondents was arbitrary and therefore violative of the rights of the petitioners under Article 14 of the Constitution. It was submitted on behalf of the counsel for UPSC that Rules for conduct of CSE are enacted by respondent No. 1 and respondent No. 2 UPSC only conducts the examinations. It was further submitted that there W.P.(C) 2988 2021 were no fundamental changes in the examination pattern and further that the O.A. filed was highly belated. It was further stated that the petitioners having attempted the examinations are now estopped from questioning the fairness of the same. 10. The contention of the petitioners that the last minute change in the syllabus affected their preparation for the examinations and prejudiced their attempt to qualify is without any basis. A perusal of the writ petition demonstrates that the candidates had sufficient time after changes were made. For the year 2013 changes were made in scheme of the mains examination 80 days before the preliminary examinations were scheduled. For the year 2014 there was no change in the syllabus but only weightage of CSAT was reduced from 200 to 185. Similarly in 2015 the change was made 3 months before the preliminary exams. In an examination such as the Civil Services Examinations the focus is to test the knowledge of the candidate. Knowledge is acquired on a regular and ongoing basis and cannot be based just on cracking the exams by cramming up the syllabus few months before the examinations. Besides whatever changes were made in the syllabus affected all the candidates who took the examination. Therefore the petitioners cannot claim that the said changes in syllabus affected only the petitioners. In any case no candidate has a right to continuation of the same syllabus scheme of examinations It is also a settled principle of law that after having participated in the selection process or taken an examination without any protest or demur the unsuccessful candidates are estopped from challenging the fairness of W.P.(C) 2988 2021 selection process or the examination. In this regard reference may be made to decisions of the Hon’ble Supreme Court in Madan Lal Vs. State of Jammu and Kashmir 1995 SCC 486 and Dhananjay Malik & Others Vs. State of Uttaranchal and Others4 SCC 171. In the recent judgment of the Hon’ble Supreme Court in Rachna and Others Vs. Union of India and Another 2021 SCC OnLine SC 140 a similar prayer was made to allow the candidates for the UPSC examination one additional attempt as they could not prepare for the UPSC examination in October 2020 on account of the pandemic. It was contended by the petitioners therein that additional attempts were granted by the respondents in the past on account of change in examination pattern syllabus which affected the preparation of the candidates for the examinations. The Hon’ble Supreme Court in the judgment aforesaid observed that merely because as a matter of policy if the respondents had granted relaxation in the past on account of change in examination pattern syllabus the same cannot be the basis to grant mandamus to the respondents to come out with a policy granting relaxation to the participants who had availed last attempt or have crossed the upper age as a matter of right. 14. The petitioners have also failed to give a satisfactory explanation on the issue of delay and laches. The cause of action if any arose in their favour in the years 2013 2015 whereas they approached the Tribunal only in 2020. Making of representations to Members of Parliament and PMO would not justify the delay and laches on the part of the petitioners in pursuing their legal remedies. W.P.(C) 2988 2021 15. We see no reason to interfere with the order passed by the Tribunal. Dismissed. AMIT BANSAL J. RAJIV SAHAI ENDLAW J. MARCH 05 2021 A W.P.(C) 2988 2021

Needful to be done within the Stipulated Time frame: High court of Shimla

To ensure timely compliance ordered if needful is not done within the said period, respondent would be entitled to 9% interest and it has no specific findings qua applicability. This honorable judgement was passed by High Court of Shimla in the case of Himachal Pradesh State Electricity Board through its Secretary and another v. Sh. Govind Ram Sharma [LPA No. 140 of 2009] by The Hon’ble Mr. Justice Sureshwar Thakur and The Hon’ble Mr. Justice Sandeep Sharma. The Appeal was filed to impugned judgment passed in the case titled as Kali Ram Sharma Vs. The HPSEB, whereby writ petition had been filed by the respondent came to be disposed of. The ground as had been raised on behalf of the appellants is that since case at hand was not covered with the judgment rendered by the Apex Court in Civil Appeal No. 3250 of 2006, titled as Commissioner and Secretary to Govt. of Haryana and others Versus Ram Sarup Ganda and others, decided on 2.8.2006. This Court find no merit in the aforesaid submission for the reasons that there is no positive direction, if any, issued by the Court with regard to extension of benefits in terms of judgment rendered by Apex Court, rather judgment clearly reveals that counsel representing respondent after having heard submission made by learned counsel for the appellants agreed for release of consequential benefits and as such Court just to ensure timely compliance ordered that if needful is not done within the said period, respondent would be entitled to 9% interest.  It also emerged from the judgment that no specific findings qua applicability of the aforesaid judgment passed by the Apex Court in the case of appellants ever came to be rendered on record and as such there appears to be no merit in the present appeal and accordingly deserves outright rejection. The court was of the view that, ‘Though in the grounds of appeal, it has been stated by learned counsel representing appellants that at the time of passing of judgment dated 14.5.2009 counsel representing appellants had no instructions from the department to give concession but even aforesaid plea deserves rejection being devoid of merit for the reasons that bare perusal of the judgment nowhere suggest that learned counsel representing appellants gave concession, if any, rather he on the basis of prayer made by the petitioner that his case is squarely covered by the judgment, supra, assured this Court that needful shall be done within the stipulated time.’

Hig h C o urt of H.P on 20 03 HCHP IN THE HIGH COURT OF HIMACHAL PRADESHSHIMLA LPA No. 1409Date of Decision: 19.3.2021 Himachal Pradesh State Electricity Board through itsSecretary and another. …..Appellants. VersusSh. Govind Ram Sharma ....Respondent.Coram:The Hon’ble Mr. Justice Sureshwar Thakur Judge.The Hon’ble Mr. Justice Sandeep Sharma Judge.Whether approved for reporting For the Appellants:Mr. Vinay Kuthiala Senior Advocatewith Mr. Diwan Negi Advocate For the Respondent: Mr. Ashwani K. Gupta Advocate. _______Per Sandeep Sharma No. 51308titled as Kali RamSharma Vs. The HPSEB through its Secretary and another whereby writpetition having been filed by the respondent came to be disposed of inthe following terms: “Learned counsel for the parties state that the matter issquarely covered by a decision rendered by the Apex Courtin Civil Appeal No. 32506 titled as Commissioner andSecretary to Govt. of Haryana and others versus Ram SarupGanda and others decided on 2.8.2006S.C.T.476].As such as prayed for by the learned counsel for the partiespetitioner is entitled for the time bound promotional scale Hig h C o urt of H.P on 20 03 HCHP after completion of 9 and 16 years of service with allincidental benefits in the grade of Junior Engineer. As statedby Mr. Shashi Shirshoo learned counsel for the respondents action for pay fixation and consequential benefits shall betaken within a period of three months from today. It isclarified that if the needful is not done within the said periodpetitioner shall be entitled to interest @9% thereafter.Petition is disposed of.”2.Precise ground as has been raised in the instant appeal onbehalf of the appellants is that since case at hand was not covered withthe judgment rendered by the Apex Court in Civil Appeal No. 3250 of2006 titled as Commissioner and Secretary to Govt. of Haryana andothers Versus Ram Sarup Ganda and others decided on 2.8.2006 therewas no occasion if any for the learned Single Judge to issue direction tothe appellants to accord benefit in favour of the respondent in terms ofaforesaid judgment passed by Hon’ble Apex Court.3.However having heard learned counsel for the parties andperused the material available on record vis a vis reasoning assigned inthe impugned order this Court finds no merit in the aforesaid submissionfor the reasons that there is no positive direction if any issued by theCourt with regard to extension of benefits in terms of judgment renderedby Apex Court rather judgment clearly reveals that counsel representingrespondent after having heard submission made by learned counsel forthe appellants agreed for release of consequential benefits and as suchCourt just to ensure timely compliance ordered that if needful is not donewithin the said period respondent would be entitled to 9% interest.4. It also emerge from the judgment passed by learned SingleJudge that no specific findings qua applicability of the aforesaid judgmentpassed by the Apex Court in the case of appellants ever came to be…2… Hig h C o urt of H.P on 20 03 HCHP rendered on record and as such there appears to be no merit in thepresent appeal and accordingly deserves outright rejection. Though inthe grounds of appeal it has been stated by learned counselrepresenting appellants that at the time of passing of judgment dated14.5.2009 counsel representing appellants had no instructions from thedepartment to give concession but even aforesaid plea deservesrejection being devoid of merit for the reasons that bare perusal of thejudgment nowhere suggest that learned counsel representing appellantsgave concession if any rather he on the basis of prayer made by thepetitioner that his case is squarely covered by the judgment supra assured this Court that needful shall be done within the stipulated time. 5.Consequently in view of the above there is no merit in theappeal and the same is dismissed being devoid of any merit. Pendingapplication(s) if any also stands disposed of accordingly. No costs. Judge Judge19 th March 2021 …3…

Scope of interference in an Arbitral Award is limited: High Court of New Delhi

It is trite law that the scope of interference in an Arbitral Award is limited and this interpretation cannot by any stretch be held to be patently illegal or in violation of the fundamental policy of Indian law. This honorable judgement was passed by High Court of New Delhi in the case of M/S National Highways Authority of India v. M/S Afcons Infrastructure Ltd. [O.M.P. (COMM) 96/2016] by Hon’ble Mr Justice Vibhu Bakhru. The petitioner had filed the present petition under Section 34 of the Arbitration and Conciliation Act, 1996 impugning the Arbitral Award dated 30.08.2012 passed by the Arbitral Tribunal.The parties had entered into the agreement for execution of the Project at a contract price of ₹164,37,67,899. Disputes arose due to a disagreement on the rate of Item No. 3.02, Wet Mix Macadam (WMM) mentioned in the Bill of Quantity (BOQ). Afcons claimed a rate of ₹831/- per cum which was based on the Ministry of Road Transport and Highways norms. However, it did not accept the rate of ₹831/- per cum as submitted by Afcons and fixed a price of ₹591/-per cum. The disputes were escalated and the parties were referred to Arbitration. Afcons filed its Statement, claiming a new rate of ₹831 per cum along with price adjustment for the execution of BOQ Item no. 3.02 – WMM. Afcons claimed a sum of ₹8,18,89,761/-. The award was in favour of Afcons. According to respondents the award was fundamentally flawed, the Tribunal erred in not considering Clause 42.2 of COPA, which provided for an additional amount to be paid on a lumpsum basis on account of any extension in the period of the Contract. Second, he submitted that the increase had been instructed by the Engineer after due consultation with Afcons. The learned council referred the case of JSC Centrodostroy v. National Highways Authority of India and National O.M.P.(COMM) 96/2016 Page 15 of 16 Highways Authority of India v. Hindustan Construction Co. Ltd. The court opinioned that, “It is trite law that the scope of interference in an Arbitral Award is limited and this interpretation cannot by any stretch be held to be patently illegal or in violation of the fundamental policy of Indian law, finds no reason to interfere with the impugned award inasmuch as, it holds that Afcons would be entitled to a new rate for BOQ executed after the initial period of thirty months. The next contention to be examined is whether Afcons is precluded from claiming any change in the rates, in view of the Minutes of the Meeting”. The Court dismissed the petiton stating that, “the court finds no ground to interfere with the impugned award. When meeting took place, at that time, there was no revision in the quantity of WMM to be executed. It is also apparent that the representatives of Afcons had agreed for a change of specification and had agreed to construct the items at the rates provided in the contract. The said agreement was in the context of change difficult to accept that the same amounted to Afcons agreeing to give up its right under Clause 52 of COPA.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on: 23.03.2021 O.M.P.96 2016 M S NATIONAL HIGHWAYS AUTHORITY OF INDIA ..... Petitioner M S AFCONS INFRASTRUCTURE LTD Advocates who appeared in this case: ..... Respondent For the Petitioner For the Respondent Mr Shambhu Sharan and Mr Yaman Kumar Advocates. Mr Sandeep Sethi Senior Advocate with Mr Manu Seshadri Mr Abhijit Lal Mr Aveak Ganguly Advocates. HON’BLE MR JUSTICE VIBHU BAKHRU VIBHU BAKHRU J The petitionerhas filed the present petition under Section 34 of the Arbitration and Conciliation Act 1996 hereinafter the ‘A&C Act’) inter alia impugning the Arbitral Award dated 30.08.2012 passed by the Arbitral Tribunal comprising of Mr. SK JainMr. Amar Singh Chauhan and Mr. P Sridharan. O.M.P.(COMM) 96 2016 The impugned award was rendered in respect of disputes that had arisen between the parties in relation to a contract dated 22.05.2001 hereinafter ‘the agreement’) entered into between the parties for execution of the project involving “Widening to 4 lanes and Rehabilitation of Existing 2 lane Carriageway of Poonamalle Kanchipuram RoadPackage 1 from km 13.80 to km 70.20.” hereinafter ‘the Project”) The respondent submitted its bid on 22.02.2001 which was accepted by NHAI vide Letter of Acceptance dated 09.04.2001 and subsequently an agreement dated 22.05.2001 was executed between the parties. The parties had entered into the agreement for execution of the Project at a contract price of ₹164 37 67 899 . The Project was to be executed within a period of thirty months from 02.07.2001 with a completion date of 31.12.2003. Disputes arose between NHAI and Afcons due to a disagreement on the rate of Item No. 3.02 Wet Mix Macadammentioned in the Bill of Quantity96 2016 of ₹545 per cum for BOQ Item No. 3.02 WMM stood reduced to ₹529.16 per cum and the total amount accepted for executing 1 91 212 cum of the said works amounted to ₹10 11 81 742. This constituted 6.15% of the Contract value after applying the necessary rebate. Admittedly the quantity of the said BOQ item No. 3.02 WMM exceeded the estimated quantity beyond the limits as envisaged under Clause 52.2 of the Conditions of Particular Application The Engineer accepted that there was a change in the quantity that had triggered Clause 52.2 of COPA. However it did not accept the rate of ₹831 per cum as submitted by Afcons and fixed a price of ₹591 per cum. The same was not acceptable to NHAI. The disputes were escalated and the parties were referred to Arbitration. In terms of Clause 67.1 of COPA the disputes between NHAI and Afcons were required to be referred to the Engineer. If the decision of the Engineer was not accepted the disputes were required to be settled by arbitration. In terms of Clause 67.1 of COPA Afcons sent a letter dated 22.04.2008 and referred the disputes to the Engineer. The Engineer rendered his decision on 15.07.2008 accepting the rate of ₹591 per cum O.M.P.(COMM) 96 2016 for the construction of WMM. Afcons did not accept the said decision and notified its intention to refer the disputes to arbitration. Thereafter it nominated an Arbitrator. NHAI also nominated an Arbitrator and both the nominated Arbitrators appointed a Presiding Arbitrator. 10. Afcons filed its Statement of Claims claiming a new rate of ₹831 per cum along with price adjustment for the execution of BOQ Item no. 3.02 WMM. It further claimed that the said rate would be applicable for the entire quantity of WMM executed. Afcons claimed a sum of ₹8 18 89 761 as due on account of execution of the said item. It further claimed interest at the rate of 18% per annum from the date of cause of action till the date of payment of the aforesaid amount. 11. The Arbitral Tribunal considered the rival contentions. It held that in view of the increase in quantities of WMM the BOQ rate contained in the Contract for Item No. 3.02 had been rendered inappropriate and Afcons was entitled to a new rate for the said item. Thereafter the Tribunal proceeded to examine the factors to be considered for determining a new rate and thereafter determined the same. Contract. 12. However the Tribunal had restricted the new rates to the quantities of WMM executed beyond the stipulated period of the 13. The Tribunal found that Afcons had executed 2 10 007.17 cum of WMM during the extended period of the Contract96 2016 to a rate of ₹972 per cum for the said item of WMM work. Thus Afcons was entitled to ₹20 41 26969 for the said works. After accounting for the price adjustment and the amount already paid by NHAI the Arbitral Tribunal awarded a sum of ₹6 99 98 873 in favour of Afcons. The Tribunal also awarded further interest at the rate of 1 30th of 1% per calendar day compounded annually on the aforesaid amount from 07.03.2008 till the date of payment. 14. Mr Shambhu Sharan learned counsel appearing for NHAI had assailed the impugned award on essentially two fronts. 15. First he submitted that the impugned award was fundamentally flawed as the Arbitral Tribunal had accepted a higher rate in respect of the WMM work executed during the extended period of the Contract. However there was no provision in the Contract which contemplated applying new rates during the extended period of the Contract. He submitted that the disputes before the Arbitral Tribunal were in regard to new rates to be determined on account of increase in the quantity of WMM to be executed by Afcons. According to Afcons a new rate was required to be determined in terms of Clause 50.2 of COPA for the entire quantity of WMM executed by it. NHAI contested the said claim as according to NHAI only the quantities that were executed in excess of 125% of the original BOQ quantity would be required to be paid at the new rate. He submitted that neither party had claimed that the new rates would be applicable only for work executed during the extended O.M.P.(COMM) 96 2016 period. He submitted that the delay in completion of the Contract weighed with the Arbitral Tribunal. However the Tribunal erred in not considering Clause 42.2 of COPA which provided for an additional amount to be paid on a lumpsum basis on account of any extension in the period of the Contract. He submitted that the Arbitral Tribunal had erred in taking the same into account while considering Afcons claim in terms of Clause 50.2 of COPA. 16. Second he submitted that the increase had been instructed by the Engineer after due consultation with Afcons. He submitted that Afcons in a meeting held on 13.09.2001 agreed to execute the additional works on the same specifications and at the same rate as provided under the Contract and therefore was precluded from claiming any further amounts. 17. Mr Sandeep Sethi learned Senior Counsel appearing for Afcons countered the aforesaid submissions. He referred to the impugned award and submitted that the increased quantities of WMM covered under the existing Variation Orders were erroneous. He submitted that the Arbitral Tribunal had only considered the quantity of WMM executed that were not covered under the accepted Variation Orders. Next he submitted that while Afcons had claimed that it was entitled to a new rate over the entire quantity of WMM executed by it and the Arbitral Tribunal had accepted its claim yet the Arbitral Tribunal had restricted the same to works executed during the extended period. He submitted that the Arbitral Tribunal had not extended the benefit of the new rate to the works executed during the original Contract period as it O.M.P.(COMM) 96 2016 proceeded on the basis that Afcons had agreed to a pre determined rate for executing the works during the said period and therefore ought to be bound by it. He submitted that although Afcons could have questioned the manner in which the Arbitral Tribunal had restricted its claim nonetheless it had chosen not to do so. However that could not be a ground for NHAI to assail the impugned award as restricting the award in favour of Afcons was not prejudicial to NHAI. 18. Next he submitted that Afcons had not agreed to execute the additional quantity at existing rates and the Minutes of the Meeting dated 13.09.2001 did not record any such Agreement. He stated that the said minutes merely mentioned execution of certain works on the same specifications and NHAI’s contention in this regard is mis conceived. Reasons and Conclusion 19. At the outset it is necessary to note that there is no dispute as to the quantity of WMM work executed by Afcons. The Arbitral Tribunal had noted that Afcons had executed 2 65 229 cum of WMM which included WMM executed under various Variation Order Nos. 5 6 & 7. In all 54 856 cum had been executed under Variation Order Nos. 5 6 & 7. The rates in respect of the said quantities had been fixed and were also subject matter of disputes before another Arbitral Tribunal. Therefore the said quantity was required to be excluded from the total quantity of WMM work executed by Afcons. The Tribunal found that after excluding the said quantity Afcons had executed a total quantity of 2 46 068 cum of WMM which had exceeded the estimated Contract O.M.P.(COMM) 96 2016 quantity by 54 856 cum. The increased quantity was more than 25% of the estimated quantity of WMM under the BOQ. There is also no dispute that the contract value of the additional quantity of WMMexceeded 5% of the contract value. Thus undisputedly Clause 52.2 of COPA was attracted. 20. At this stage it will be relevant to refer to Clause 52.2 of the General Conditions of Contractas well as Sub clause 52.2 of COPA which is the heart of the controversy between the parties. The said Clause is quoted below: “Clause 52.2 of the GCC Power of Engineer to Fix Provided that if the nature or amount of any varied work relative to the nature or amount of the whole of the Works or to any part thereof is such that in the opinion of the Engineer the rate or price contained in the Contract for any time of the Works is by reason of such varied work rendered inappropriate or inapplicable then after due consultation by the Engineer with the Employer and the Contractor a suitable rate or price shall be agreed upon between the Engineer and the Contractor. In the event of disagreement the Engineer shall fix such other rate or price as is in his opinion appropriate and shall notify the Contractor accordingly with a copy to the Employer. Until such time as rates or prices are agreed or fixed the Engineer shall determine provisional rates or prices to enable an account payments to be included in certificates issued in accordance with Clause 60. Provided also that no varied work instructed to be done by the Engineer pursuant to Clause 51 shall be valued under Sub Clause 52.1 or under this Sub Clause unless within 14 days of the date of such instruction and other O.M.P.(COMM) 96 2016 the case of omitted work before commencement of the varied work notice shall have been given either: a) by the Contractor to the Engineer of his intention to claim extra payment or a varied rate or price or b) by the Engineer to the Contractor of his intention to vary a rate or price.” Clause 52.2 of COPA Power of Engineer to Fix Rates Provided further that no change in the rate or price for any item contained in the Contract shall be considered unless such item accounts for an amount more than 5 percent of the Contract Price and the actual quantity of work executed under the item exceeds of falls short of the quantity set out in Bill of Quantities by more than 25 In view of the above it is not disputed that Clause 52.2 of COPA is applicable in the given facts. This is because the quantity of WMM BOQ Item No. 3.02) had exceeded the estimated Contract quantity by more than 25% as against the estimated quantity of 1 91 212 cum. Concededly 2 46 068 cum was executed by Afcons. Admittedly this is more than 25% of the estimated quantity. The BOQ Item No. 3.02 also accounts for more than 5% of the Contract value. In term of Clause 52.2 of COPA Afcons was entitled to revision in the rate. In the aforesaid backdrop the disputes between the parties were essentially related to the question as to whether Afcons was entitled to a new rate for WMM and whether the same was to be applied for the entire quantity that is 2 46 068 cum or only the quantity that O.M.P.(COMM) 96 2016 was in excess of 125% of the estimated quantity 96 2016 “ ..Item 3.02is stated in the BOQ with a quantity of 191 212 cum and corresponding value of Rs. 104 210 540 which is 6.34% of the Original Contract value96 2016 3.02 as per the Engineer rate analysis of Rs. 591 cum stated in Variation Order 16. However pending the agreement with the Contractor and the Employer on the rate of item 3.02 the Engineer will apply in the IPC the BOQ rate to enable the payment according to Sub Clause 60.2 till an agreement is reached…”” In view of the aforesaid letter there is no real dispute that Clause 52.2 of COPA was applicable and a new rate was required to be determined. The dispute was escalated since the parties could not concur on the rate as determined by the Engineer. It is also relevant to note that NHAI had contended before the Arbitral Tribunal that due to an increase in the quantity the rate of WMM is required to be reduced. 28. The Arbitral Tribunal had after examining the rival contentions concluded that Afcons was entitled to a new rate which was based on all aspects and circumstances. In arriving at the said conclusion the Arbitral Tribunal noted various aspects which were relevant for determining whether the rate had become inappropriate or inapplicable. The Tribunal also noted that in Variation Order No. 7 a new rate of ₹950 per cum had been worked out. The said rate had been determined after considering the increase in the rate of plant & machinery fuel indices of petrol oil and lubricants. 29. Afcons had contended that once it is found that the rate has become inappropriate or inapplicable on account of a variation in the quantity of the BOQ item then the new rate so determined would be applicable for the item and the same would be applicable for the entire O.M.P.(COMM) 96 2016 quantity of the item executed. Although the Tribunal found the said contention to be persuasive it did not accept the same in entirety. The Arbitral Tribunal held that Afcons was bound to execute the BOQ items at the rates quoted during the period of the Contract even if the same had become unworkable. But at the same time Afcons could not be compelled to execute WMM at the same rates after the initial period of the Contract had expired as the rates had become inappropriate and inapplicable. In National Highways Authority of India v. Hindustan Construction Co. Ltd.: OMP 73 2016 decided on 28.11.2016 this Court had considered a challenge to an arbitral award where the Arbitral Tribunal had observed as under: “(7) Therefore considering the above analysis Arbitral Tribunal is of the firm view that the revised rate would substitute the existing rate would substitute the existing rate in BOQ and would apply to the revised quantum of the work included in the contract i.e. BOQ item as whole.” 31. This Court had found no ground to interfere with the aforesaid view. A similar view was also expressed by the Division Bench of this Court in JSC Centrodostroy v. National Highways Authority of India: 2014) 1 HCC297. 32. The learned counsel appearing for NHAI also did not dispute that the said question has been a subject matter of disputes before various Arbitral Tribunals and the said view has not been interfered with. O.M.P.(COMM) 96 2016 Undisputedly the subject controversy stands covered by the aforesaid decisions. 33. The Engineer had issued Variation Order No. 16 and the rates therein were not accepted and the disputes had been escalated. The letter dated 18.02.2008 sent by the Engineer also records the controversy in this regard. The Arbitral Tribunal has also noted the decision of this Court in National Highways Authority of India v. Som Datt Builders NCC NEC527 2007 wherein this Court had held that “if the variation exceeds the tolerance limit sat in the Contract renegotiation of the rates would be called for”. This would obviously mean the rate for a particular item and not the quantities executed beyond the specified limits. In view of the above there is merit in Mr Sethi’s contention that NHAI cannot be aggrieved by the impugned award inasmuch as the Arbitral Tribunal has further restricted the applicability of the new rates only to WMM works executed beyond the initial period of thirty months. In any view of the matter a plain reading of the impugned award does indicate that the Tribunal had rejected NHAI’s contention that the new rates were only applicable to quantities executed in excess of 125% of the original estimated quantities as the said interpretation was not supported by the plain language of Clause 52.2 of COPA. There is no ground to interfere with this view. This Court in JSC Centrodostroy v. National Highways Authority of Indiaas well as in National O.M.P.(COMM) 96 2016 Highways Authority of India v. Hindustan Construction Co. Ltd. supra) has found no flaw with the interpretation that once a rate has been found to be inappropriate or inapplicable on account of variation in the quantity beyond the stipulated limit then the new rate would be applicable to the entire item of the work executed. It is trite law that the scope of interference in an Arbitral Award is limited and this interpretation cannot by any stretch be held to be patently illegal or in violation of the fundamental policy of Indian law. In this view this Court finds no reason to interfere with the impugned award inasmuch as it holds that Afcons would be entitled to a new rate for BOQ Item No. 3.02 executed after the initial period of thirty months. 37. The next contention to be examined is whether Afcons is precluded from claiming any change in the rates in view of the Minutes of the Meeting dated 13.09.2001. The attention of this Court was drawn to Paragraph 2 of the said minutes which indicate that certain issues were discussed and decisions were taken. Clauseof Paragraph 2 of the said minutes records that “the contractors representatives agreed for change in specification and construct the items at the rates provided in the contract”. It is important to note that the said meeting took place on 13.09.2001. At that time there was no revision in the quantity of WMM to be executed. It is also apparent that the representatives of Afcons had agreed for a change of specification and had agreed to construct the items at the rates provided in the contract. The said agreement was in the context of change of specifications and it is O.M.P.(COMM) 96 2016 difficult to accept that the same amounted to Afcons agreeing to give up its right under Clause 52 of COPA. In view of the above this Court finds no ground to interfere with the impugned award. The petition is accordingly dismissed. MARCH 23 2021 VIBHU BAKHRU J O.M.P.(COMM) 96 2016

A convict is not entitled to remission while undergoing sentence in default of payment of fine: High Court of Delhi.

Due to covid-19, the Delhi Government had granted emergency parole where it was evident that release was in the nature of remission as the sentence was being undergone by the convict and not a mere suspension of sentence as in the case of parole. the convict also had to undergo a sentence in default of payment of fine, which cannot be undergone while on emergency parole as the rule clearly prescribes- “that a convict is not entitled to remission while undergoing sentence in default of payment of fine”. A single judge bench comprising Hon’ble Justice Mukta Gupta in the matter of Virendra Vs. State (GNCT) of Delhi (W.P.(CRL.) 798/2021), dealt with an issue where the petitioner seeks a writ of mandamus. In the present case, the petitioner had approached the court seeking a writ of mandamus directing the respondent to release the petitioner in view of the completion of his substantive sentence as well as the sentence in default of payment of fine, who was convicted for offences punishable under Section 363 IPC and Section 4 of Protection of Children from Sexual Offences Act, 2012 (in short, ‘POCSO Act’). The petitioner was sentenced to undergo rigorous imprisonment for 7 years and a fine of ₹50,000/-. The petitioner was in custody when due to Covid-19 the Delhi government had issued a notification to release the prisoners on emergency parole and thereby the petitioner was released on emergency parole for a period of 8 weeks on 22nd august 2020, which continued from time to time. Later through an order on 8th January 2021, the Govt. of NCT directed all the released convicts to surrender to custody as the emergency parole was not to be extended any further. The petitioner submitted that the notice of emergency release contained that the period of parole will be counted as the period undergone and in such case, the petitioner’s substantive sentence completed on 27th December 2020 and since then the petitioner was on emergency parole thereafter also, according to the petitioner, he was undergoing sentence in default of payment of fine and thereby the petitioner surrendered himself on 21st February 2021 and was ought to be released on 27th February 2021. The jail superintendent of Tihar jail failed to release the petitioner on 28th February 2021 and to this, the petitioner had got the present petition drafted, which was the superintendent of Tihar jail kept pending before listing it before the court. A reply affidavit had been filed by the Director-General (Prisons) Tihar, as also the nominal roll of the petitioner, and stated that when the petition was filed by the petitioner the superintendent had no intention to keep it pending, rather the superintendent looked into the petition and found that there was no application made in this regard to the Prison Department and before forwarding the petition to this Court, desired to look into the matter at his own level so that if there was any error, the same could be rectified and in this regard, also took legal opinion. The court observed that although there was no mala fide intention on the part of the superintendent, but there was an error to keep the petition pending. Further, the court observed that the only issue here was- “whether the period spent by the petitioner on emergency parole outside can be counted not only towards the substantive sentence undergone but also towards the sentence undergone in default of payment of fine.” The counsel for the respondent relying on section 432(5) of Crpc, contended that the petition should not be granted remission was at that time undergoing sentence in default of payment of fine and hence during the period the emergency parole, the petitioner had undergone the substantive sentence and not the sentence of default of payment of fine. After going through the government notification and hearing both the counsels, the court held that –“it is evident that release was in the nature of remission as the sentence was being undergone and not a mere suspension of sentence as in the case of parole. The rules clearly prescribe that a convict is not entitled to remission while undergoing sentence in default of payment of fine.”

IN THE HIGH COURT OF DELHI AT NEW DELHI VIRENDER Reserved on: April 12 2021 Decided on: 6th July 2021 W.P.(CRL.) 798 2021 Represented by: Ms.Manika Tripathy Pandey Petitioner Represented by: Mr.Ranbir Singh Kundu Additional Respondent STATEOF DELHI Standing Counsel for State and Mr.Piyush Singhal Advocate with Mr.Sandeep Goel Director General Prisons) Tiharvide the judgment dated 24th October 2019 and sentenced to undergo rigorous imprisonment for 7 years and a fine of ₹50 000 in default whereof to undergo simple imprisonment for 2 months for offence punishable under Section 4 of the POCSO Act and rigorous W.P.(CRL.) 798 2021 imprisonment for a period of 1 year for offence punishable under Section 363 IPC vide order dated 25th October 2019. The petitioner was in custody when due to Covid 19 the Delhi Government issued a notification dated 23rd March 2020 constituting a High Powered Committee which decided to release prisoners on emergency parole and pursuant thereof the petitioner was released on emergency parole for a period of eight weeks on 22nd August 2020 which was continued from time to time. Vide the order of the Home Department Govt. of NCT dated 8th January 2021 all convicts released on emergency parole were directed to surrender to custody as the emergency parole was not extended further. Thus the petitioner surrendered on 21st February 2021. As per the petitioner since the notification of the Govt. of NCT releasing the prisoners on emergency parole noted that the period of parole will be counted as period undergone petitioner’s substantive sentence completed on 27th December 2020 and since the petitioner was on emergency parole thereafter also according to the petitioner he was undergoing sentence in default of payment of fine and when the petitioner surrendered on 21st February 2021 he had undergone substantial sentence in default of fine and he ought to have been released on 27th February 2021 having undergone simple imprisonment for a period of 2 months in default of payment of fine as well. Since the Superintendent Tihar Jail failed to release the petitioner on 28th February 2021 the petitioner preferred the present petition which was got drafted on 10th March 2021. However the Superintendent Jail took his own time and kept the petition pending which was finally listed before this Court on 9th April 2021 when this Court issued notice to the Director General Prisons) and also sought his presence through video conferencing. W.P.(CRL.) 798 2021 4. Grievance of the petitioner in the present petition is two fold. Firstly that his petition challenging the inaction of the Superintendent Jail was not got listed and deliberately kept back by the Superintendent jail so as to frustrate the filing of the petition and Secondly since the petitioner had undergone substantial sentence in default of payment of fine as well while on emergency parole the petitioner ought to have been released on 28th February 2021 immediately after his surrender. The petitioner also has a grievance that though every jail petition as per the Rules is required to be accompanied by the nominal roll the present petition was not even accompanied by the nominal roll. A reply affidavit has been filed by the Director General Tihar as also the nominal roll of the petitioner. At the outset the Director General states that when the petition was filed by the petitioner claiming that he was entitled to be released the Superintendent Jail looked into the petition and found that there was no application made in this regard to the Prison Department and before forwarding the petition to this Court desired to look into the matter at his own level so that if there was any error the same could be rectified and in this regard also took legal opinion. After the legal opinion was received that the in default sentence cannot be said to have been undergone the present petition was forwarded to this Court. From the affidavit filed it is evident that though there was no mala fide in not forwarding the petition to this Court immediately however there was certainly an error on the part of the Superintendent Jail who could not have kept the petition pending with him and ought to have filed the same as expeditiously as possible so that the petitioner s grievance could be redressed. As regards the nominal roll is concerned the Jail Superintendents W.P.(CRL.) 798 2021 are directed to be careful and will ensure that all petitions sent to this Court are duly accompanied by the copy of the nominal roll of petitioner applicant. Thus the only issue which needs consideration in the present petition is whether the period spent by the petitioner on emergency parole outside can be counted not only towards the substantive sentence undergone but also towards the sentence undergone in default of payment of fine. Learned counsel for the petitioner relies upon the decision in Santosh Manohar Deshmukh Vs. State of Maharashtra and Anr. Crl. Writ Petition Stamp No. 1690 of 2020 decided on 15th September 2020 wherein the Bombay High Court held that the imprisonment required to be undergone in default of payment of fine is a penalty incurred for non payment of fine and cannot be said to be a sentence imposed under MCOCA. Considering the fact that the petitioner therein was unable to pay fine and his family was pushed to abject poverty during his incarceration forcing his mother to do manual labour the Court held that the petitioner has already undergone 14 years of substantive sentence and also almost 4 years 8 months’ imprisonment in default of payment of fine and thus in the interest of justice deemed it appropriate to issue directions to the respondents therein to consider releasing of the petitioner therein on Covid parole on filing of a formal application initially for a period of 45 days in terms of the decision of the High Powered Committee. Learned counsel for the respondent however relying upon the Proviso to Sub Section 5 of Section 432 CrPC contends that no remission can be granted in case the prisoner is undergoing sentence in default of payment of fine and hence the emergency parole granted to the petitioner W.P.(CRL.) 798 2021 being akin to a remission the petitioner could have utilized the said period only to undergo the substantive sentence and not against the sentence in default of payment of fine. Reliance is also placed on Chapter XVIII of the Delhi Prison Rules 2018 which came into force on 1st January 2019 dealing with the Remissions and also on Explanations to Rules 730 756 1176 and 1185 of the Delhi Prison Rules 2018. It is stated that since the petitioner was not entitled to any remission while undergoing the sentence in default of payment of fine the period on emergency parole cannot be counted as undergoing the in default sentence. 10. Before proceeding further it would be appropriate to note the notification of the Home Department Govt. of NCT of Delhi dated 27th March 2020 in F.No.18 191 2015 HG 1428 1438 pursuant whereto the petitioner was released on emergency parole as under: ‘Whereas Hon‟ble Supreme Court of India vide its order dated 16.03.2020 in SMWP(C) No. 1 2020 has observed that there is an imminent need to take steps on an urgent basis to prevent the contagion of COVID 19 in our prisons: 2. And Whereas Government. of National Capital Territory of Delhi has initiated various measures including the notification of Delhi Epidemic Disease COVID 1 9 Regulations 2020 under the Epidemic Disease Act 1897 for prevention and containment of Corona Virus pandemic 3. Now therefore the Government of National Capital Territory of Delhi keeping in mind the emergent situation of threat of COVID 19 epidemic in Delhi Prisons and in exercise of powers conferred under Rule 1212 A of the Delhi Prisons Rules 1018. has decided to grant upto eight weeks emergency parole which shall be counted towards the sentence of the prisoners. W.P.(CRL.) 798 2021 4. The Government. has further decided to constitute a committee to screen and recommend the cases of gram of emergency parole to the convicts. The committee consist of: 1. DG(prisons) 2. Spl Secretary3. DIG(prisons) 4. ADM5. Suptd Prison HQ their on going furlough parole would be The following categories of convicts would be considered for grant of emergency parole by the above committee : 1) All convicts who are presently outside the prison either on furlough or an parole: Such convicts who are out of prison on furlough parole would be granted eight weeks of emergency parole. The remaining portion treated as suspended lapsed on grant of emergency parole. The prisoners would now be required to report back to their respective jail on expiry of the emergency parole . Intimation to all such convicts in this regard would be ensured by the prison authorities. 2) All convicts who have availed parole furlough in the past : Such convicts who have availed parole furlough in the past and have overall satisfactory conduct would be granted eight weeks of emergency parole on furnishing of personal bond. 3) All convicts not falling under S No 1 or 2 above but otherwise Such cases will also be considered by the Committee for appropriate orders. B. Terms & conditions 1. All the convicts released on emergency parole will surrender themselves on expiry of the parole period as granted or on recall or any other condition as deemed fit. 2. All pending applications for grant of regular parole would be deemed to have been withdrawn in view of grant of emergency parole to the eligible convicts. 3. DG(Prisons) will cause to maintain a proper record of convicts released on emergency parole. C. Delegation of Power : W.P.(CRL.) 798 2021 1. The powers to consider the cases for grant of emergency parole except those falling under Rule 1211 of the Delhi prison rules 2018 on the recommendation of the committee constituted under para 4 is delegated to DG(prison) till 30.04.2020 D. Cases falling under Rule 1211 of ]Delhi Prisons Rule 1. The cases of grant of emergency parole to the eligible convicts falling under Rule 1211 will be submitted to the Home Department either individually or as a class for appropriate Note : For the purposes of this order it is hereby clarified that a „satisfactory conduct‟ would mean that the convict has not indulged in any major misconduct during his incarceration in the last three years or during parole furlough in the past. Minor incidents of misconduct if any on the part of the convict may be ignored. However in exceptional cases where the Superintendent feels that despite a major conduct on the part of the convict improvement and earlier he has shown good signs of reformation in his behavior and his going out on emergency parole will not be detrimental to the interest of the society he may recommend the name of such convict for grant of „Emergency Parole to the DGSCC 55 Ashfaq vs. State of Rajasthan brought out the distinction between ‘parole’ and ‘furlough’ as under: W.P.(CRL.) 798 2021 “10. In the first instance it would be necessary to understand the meaning and purpose of grant of parole. It would be better understood when considered in contrast with furlough. These terms have been legally defined and judicially explained by the Courts from time to time. 11. There is a subtle distinction between parole and furlough. A parole can be defined as conditional release of prisoners i.e. an early release of a prisoner conditional on good behaviour and regular reporting to the authorities for a set period of time. It can also be defined as a form of conditional pardon by which the convict is released before the expiration of his term. Thus the parole is granted for good behaviour on the condition that parolee regularly reports to a supervising officer for a specified period. Such a release of the prisoner on parole can also be temporarily on some basic grounds. In that eventuality it is to be treated as mere suspension of the sentence for time being keeping the quantum of sentence intact. Release on parole is designed to afford some relief to the prisoners in certain specified exigencies. Such paroles are normally granted in certain situations some of which may be as follows: a member of the prisoner s family has died or is i) seriously ill or the prisoner himself is seriously ill or ii) the marriage of the prisoner himself his son daughter grandson grand daughter brother sister sister s son or daughter is to be celebrated or iii) the temporary release of the prisoner is necessary for ploughing sowing or harvesting or carrying on any other agricultural operation of his land or his father s undivided land actually in possession of the prisoner or iv) it is desirable to do so for any other sufficient cause v) parole can be granted only after a portion of sentence is already served vi) if conditions of parole are not abided by the parolee he may be returned to serve his sentence in prison such conditions may be such as those of committing a new offence and W.P.(CRL.) 798 2021 parole may also be granted on the basis of aspects related to health of convict himself. 12. Many State Governments have formulated guidelines on parole in order to bring out objectivity in the decision making and to decide as to whether parole needs to be granted in a particular case or not. Such a decision in those cases is taken in accordance with the guidelines framed. Guidelines of some of the States stipulate two kinds of paroles namely custody parole and regular parole. „Custody parole‟ is generally granted in emergent circumstances like: death of a family member i) ii) marriage of a family member iii) serious illness of a family member or iv) any other emergent circumstances. 13. As far as „regular parole‟ is concerned it may be given in the following cases: i) ii) critical conditions in the family on account of accident or serious illness of a family member death of a family member v) iii) marriage of any member of the family of the convict iv) delivery of a child by the wife of the convict if there is no other family member to take care of the spouse at home serious damage to life or property of the family of the convict including damage caused by natural calamities to maintain family and social ties vi) vii) to pursue the filing of a special leave petition before this Court against a judgment delivered by the High Court convicting or upholding the conviction as the case may be. 14. Furlough on the other hand is a brief release from the prison. It is conditional and is given in case of long term imprisonment. The period of sentence spent on furlough by the prisoners need not be undergone by him as is done in the case of parole. Furlough is granted as a good conduct remission. 15. A convict literally speaking must remain in jail for the period of sentence or for rest of his life in case he is a life convict. It is in this context that his release from jail for a short period has to be considered as an opportunity afforded to him W.P.(CRL.) 798 2021 not only to solve his personal and family problems but also to maintain his links with society. Convicts too must breathe fresh air for at least some time provided they maintain good conduct consistently during incarceration and show a tendency to reform themselves and become good citizens. Thus redemption and rehabilitation of such prisoners for good of societies must receive due weightage while they are undergoing sentence of imprisonment. 16. This Court through various pronouncements has laid down the differences between parole and furlough few of which are as under: i) Both parole and furlough are conditional release. in case of short ii) Parole can be granted imprisonment whereas in furlough it is granted in case of long term imprisonment. iii) Duration of parole extends to one month whereas in the case of furlough it extends to fourteen days maximum. iv) Parole is granted by Divisional Commissioner and furlough is granted by the Deputy Inspector General of v) For parole specific reason is required whereas furlough is meant for breaking the monotony of imprisonment. vi) The term of imprisonment is not included in the computation of the term of parole whereas it is vice versa in furlough. vii) Parole can be granted number of times whereas there is limitation in the case of furlough. viii) Since furlough is not granted for any particular reason it can be denied in the interest of the society.” 13. Section 432 sub section 5 Cr.P.C. reads as under: “432 The appropriate Government may by general rules or special orders give directions as to the suspension of sentences and the conditions on which petitions should be presented and dealt with: Provided that in the case of any sentencepassed on a male person above the age of eighteen W.P.(CRL.) 798 2021 years no such petition by the person sentenced or by any other person on his behalf shall be entertained unless the person sentenced is in jail and a) where such petition the person sentenced it is presented through the officer in charge of the jail or b) where such petition is made by any other person it contains a declaration that the person sentenced is in is made by 14. Relevant Rules of Delhi Prison Rules 2018 read as under: Rule 730. "The period of imprisonment to be undergone shall be reckoned from the date on which the sentence is passed except in cases which fall under sections 31 426 and 427 of the Code of Criminal Procedure 1973 where the directions of the Court shall be followed. Explanation: In the case of a prisoner sentenced to imprisonment in default of fine the period of imprisonment shall be reckoned from the day on which he was rearrested for failing to pay the fine imposed.” Rule 756. Sentences awarded in default of payment of fine shall be calculated as follows: i) Sentences imposed in default of payment of fines cannot run concurrently. x x x x x x ix) A prisoner will not be given benefit of section 428 Cr.P.C. for the sentence in lieu of fine. The sentence of fine shall not run concurrently with other sentences of CHAPTER XVIII Rule 1169. Without prejudice to the provisions of Article 72 of the Constitution of India and the Section 432 of the Code remission can be earned under the provisions of the Delhi Prisons Act 2000 on the prisoner fulfilling the conditions required hereinafter. However Remission is a privilege to a prisoner cannot be claimed as a right. Rule 1170. Remission is a concession which can be granted W.P.(CRL.) 798 2021 by the Authorities as provided in these rules. The appropriate Government reserves the right to debar withdraw any prisoner or category of prisoners from the concession of remission. The remissions may be withdrawn or forfeited if the prisoner commits specified Jail offences or conditions prescribed in the relevant order of remitting the sentence. Rule 1171. Remission should be granted on the basis of an inmate‟s overall good behavior during the stay in the in custody Jail willingness cooperation and help to the prison administration in prison management and general response to various institutional activities. take work while Note: If any statute or the court in its order of sentence has denied the remission to the prisoner and thereby not specified the kind of remission to be denied then all kinds of remission will be denied. Rule 1172. In the context of this chapter: II. to prison „Prisoner‟ means a convict and or includes a person committed in default of furnishing security for maintaining peace or good behavior and also includes persons convicted by a Military Court. „Sentence‟ means a sentence as finally fixed on appeal or revision or otherwise and includes an aggregate of more sentences than one and an order of imprisonment in default of furnishing security for maintaining peace or good behavior. Kinds of Remission Rule 1173. Remission will be of the following types: A) Ordinary Remission B) Annual Good Conduct Remission C) Special Remission D) Remission by Government Ordinary Remission x x x x x x Rule 1176. Non Eligibility: The following types of prisoners W.P.(CRL.) 798 2021 will not be eligible for ordinary remission: I. II. Prisoners sentenced in default of payment of fine x x x x x x 15. Thus from the notification issued by the Government granting emergency parole it is evident that release was in the nature of remission as the sentence was being undergone and not mere suspension of sentence as in the case of parole. The rules clearly prescribe that a convict is not entitled to remission while undergoing sentence in default of payment of fine. Thus the contention of learned counsel for the petitioner that the petitioner had undergone substantial sentence in default of payment of fine while on emergency parole cannot be accepted. 16. Petition is dismissed. 17. Order be uploaded on the website of this Court. JUDGE MUKTA GUPTA) JULY 06 2021 W.P.(CRL.) 798 2021

In the case of murder, bail application rejected: High court of Karnataka

The criminal petition is filed under section 439 of CR.P.C ( special powers of high court or court of session regarding bail) seeking for enlargement on bail for the offence punishable under section 302( punishment for murder), 201( Causing disappearance of evidence of offence or giving false information to screen offender) read with Section 34 of IPC ( Acts done by several persons in furtherance of common intention) and Section 181 of Indian Motor Vehicle Act ( Driving vehicles in contravention of section 3 or section 4) by the petitioner. And the petition was rejected by High court of Karnataka through the learned bench led by the honorable Mr. Justice H P Sandesh in the case of Sri Manoj.G.Gowda vs state of Karnataka ( criminal petition no. 9018/2021) on 20th January 2022. Brief facts of the case are that the petitioner along with other accused persons due to prior enmity inflicted the injury on the victim with knife which was carried in the car and this incident was witnessed by CW2 and 3 and thereafter they took the body of the victim and destroyed the body of the victim throwing to the Yagachi river. Based on the complaint, the police have registered the case, investigated and filed the charge-sheet for the offences. Arguments presented by the learned counsel appearing on behalf of the petitioner that the petitioner is aged about 19 years working as ambulance driver in the hospital and he is in custody from the last 10 months and prosecution case is mainly based on the confession statement made by the accused persons before the Investigating Officer. The learned counsel brought to notice of this Court that accused no.4 has been enlarged on bail and there is a specific allegation against accused no.4 and there are contradictions in the statements of CW2 and 3 who are the alleged eye-witnesses and the investigation has been completed and there is no need of custodial trial and he may be enlarge on bail. Arguments presented by the learned High court government pleader appearing on behalf of the state that the specific allegations are made against the petitioner as well as accused no.1 and 2 that this petitioner along with accused no.1 and 2 inflicted the injury with knife and as a result, the victim succumbed to the injuries. The counsel submits that while granting bail to accused no.4, this Court made an observation that he was only accompanied with accused Nos.1 to 3 in a car and there is no overt act allegations made against accused no.4. But there is a prima facie direct evidence against accused nos.1 to 3 and hence, prayed to dismiss the petition. After the keen observation of the statements of the witnesses in the case court came to the conclusion that all of them inflicted injuries with their knives on the body of the victim which ultimately resulted victim’s death, therefore, it is not justified to grant the bail to the petitioner in the present petition on any ground. Click here to read the judgement

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF JANUARY 2022 THE HON BLE MR. JUSTICE H.P. SANDESH CRIMINAL PETITION NO.9018 2021 BETWEEN: SRI MANOJ G GOWDA S O T.T. GIDDE GOWDA AGED ABOUT 19 YEARS R O THIMMANAHALLI VILLAGE KASABA HOBLI HASSAN TALUK HASSAN DISTRICT 573 118 STATE OF KARNATAKA BY PENSION MOHALLA POLICE STATION HASSAN 573 201 REP BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BENGALURU 560 001 … PETITIONER BY SRI SHARAN K ADVOCATE) … RESPONDENT BY SRI K.K. KRISHNA KUMAR HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF CR.P.C. PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CRIME NO.63 2021 REGISTERED BY THE PENSION MOHALLA POLICE STATION HASSAN FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 302 201 READ WITH SECTION 34 OF IPC AND SECTION 181 OF INDIAN MOTOR VEHICLE ACT AND ETC. THIS CRIMINAL PETITION COMING ON FOR ORDERS THROUGH VIDEO CONFERENCE THIS DAY THE COURT MADE THE FOLLOWING: O R D E R This petition is filed under Section 439 of Cr.P.C. praying to enlarge the petitioner on bail in Crime No.63 2021 registered by the Pension Mohalla Police Station Hassan for the offences punishable under Sections 302 201 read with Section 34 of IPC and Section 181 of Indian Motor Vehicle Act. 2. Heard the learned counsel for the petitioner and the learned High Court Government Pleader appearing for the State. 3. The factual matrix of the case is that this petitioner along with other accused persons due to prior enmity inflicted the injury on the victim with knife which was carried in the car and this incident was witnessed by CW2 and 3 and thereafter they took the body of the victim and destroyed the same throwing to the Yagachi river. Based on the complaint the police have registered the case investigated and filed the charge sheet for the aforesaid offences. The learned counsel for the petitioner would submit that the petitioner is aged about 19 years working as Ambulance driver in the hospital and he is in custody from the last 10 months and prosecution case is mainly based on the confession statement made by the accused persons before the Investigating Officer. The learned counsel brought to notice of this Court that accused No.4 has been enlarged on bail in Crl.No.6597 2021 as there is a specific allegation against accused No.4 and there are contradictions in the statements of CW2 and 3 who are the alleged eye witnesses and the investigation has been completed and there is no need of custodial trial and he may be enlarge on bail. Per contra the learned High Court Government Pleader appearing for the State would submit that the specific allegations are made against this petitioner as well as accused Nos.1 and 2 that this petitioner along with accused No.1 and 2 inflicted the injury with knife and as a result the victim succumbed to the injuries. The counsel submits that while granting bail to accused No.4 this Court made an observation that he was only accompanied with accused Nos.1 to 3 in a car and there is no overt act allegations made against accused No.4. But there is a prima facie direct evidence against accused Nos.1 to 3 and hence prayed to dismiss the petition. Having heard the respective counsel and also on perusal of the documents on record it is the specific case of the prosecution that accused Nos.1 to 3 inflicted the injury with knife and no doubt the learned counsel for the petitioner brought to notice of this Court that there are contra statements of the eye witnesses and also brought to the notice of the Court at the end of the statements of CW2 and 3 that they have stated that accused Nos.1 to 4 have committed the murder but on perusal of the entire statement of CW2 and 3 the specific allegations are made against accused Nos.1 to 3 only that they have inflicted the victim with knife which was carried in the car and only on perusal of the statements of CW2 and 3 further improvement found that accused No.4 also inflicted the injury and hence this Court has to take note of the specific overt act allegations made against the accused Nos.1 to 3 who have committed the murder and thereafter the body was thrown in the river. When such being the factual aspects of the case the order passed by this Court in Crl.P.No.6597 2021 will not comes to the aid of this petitioner and the specific overt act allegations are made against this petitioner and accused Nos.1 and 2 is very same that all of them have inflicted the injury with knife and cause of death is also on account of injury sustained by the victim. Hence it is not a fit case to exercise the discretion in favour of the petitioner. In view of the discussions made above I pass the The bail petition is rejected. Sd

Conviction or sentence under a revoked law is not sustainable: High Court of Jharkhand

Once a law that has been declared unconstitutional by the Supreme Court of India, no one can be convicted or sentenced under it and furthermore any prior conviction may be set aside through a revision petition. This was held by a single member bench of the High Court of Jharkhand consisting of Justice Anubha Rawat Choudhary in the case of August Kumar Mehta v The State of Jharkhand [Cr. Rev No. 1081 of 2013] on 23rd June 2021. The petitioner, Mr August Kumar Mehta was convicted on 1st October 2013 by an Additional Sessions Judge at Daltonganj under Section 497 of the Indian Penal Code for allegedly engaging in adultery with his neighbour’s wife. He was also sentenced to two years of rigorous imprisonment for the same. The present revision petition was admitted on 6th December 2013 and the petitioner as released on bail. On 27th September 2018, the Supreme Court, in the case of Joseph Shine v Union of India [(2019) 3 SCC] declared Section 497 of the IPC to be unconstitutional. The petitioner contended that since Section 497 was declared as ultra-vires to the constitution, the conviction should not be sustained. The case of Rupesh v Shri Charandas [2018 SCC OnLine Bombay 6292] was cited was cited where the Bombay High Court set aside a conviction under Section 497 of the IPC using the case of  Joseph Shine as a precedent despite adultery being a crime when the accused person had committed it.  The petitioner also added that he had been convicted on just hearsay evidence and assumptions and the prosecution’s case had not been proved beyond all doubt.

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Rev. No. 10813 August Kumar Mehta son of Lalan Mehta resident of Village Lohra P.O. & P.S. Lesliganj District Palamau … … Versus The State of Jharkhand CORAM: HON BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY … … Opp. Party For the Petitioner For the State Opp. Party Mr. Amit Kumar Das Advocate Mrs. Vandana Bharti A.P.P. Through Video Conferencing 1. Heard Mr. Amit Kumar Das the learned counsel appearing for the petitioner. 2. Heard Mrs. Vandana Bharti the learned A.P.P. appearing on behalf of the State Opposite Party. The present criminal revision petition is directed against the Judgement dated 01.10.2013 passed by the Additional Sessions Judge VII Palamau at Daltonganj in Criminal Appeal No. 90 2008 whereby the learned appellate court affirmed the Judgment of conviction and the order of sentence of the petitioner under Section 497 of the Indian Penal Code passed by the learned trial court and dismissed the criminal appeal. The learned trial court vide Judgment of conviction and the order of sentence dated 17.07.2008 passed by the learned Judicial Magistrate 1st Class Daltonganj Palamau in G.R. Case No. 301 Trial No. 1608had convicted the petitioner for the offence under Section 497 of the Indian Penal Code and had sentenced him to undergo Rigorous Imprisonment for two years under Section 497 of the Indian Penal Code. Arguments on behalf of the petitioner Learned counsel appearing for the petitioner at the outset submitted that the petitioner has been convicted under Section 497 of the Indian Penal Code which has been declared unconstitutional by the Hon’ble Supreme Court in the case of Joseph Shine versus Union of India decided on 27.09.2018 reported in3 SCC 39 and therefore once the Section itself has been declared ultra vires to the Constitution no conviction under Section 497 of the Indian Penal Code can be sustained. Learned counsel for the petitioner also referred to the judgement passed by the Hon’ble Bombay High Court in the case of Rupesh versus Shri Charandas reported in 2018 SCC OnLine Bombay 6292 wherein the Judgment of the Hon’ble Supreme Court passed in the case of Joseph Shine has been followed and the conviction and sentence under Section 497 of the Indian Penal Code has been set aside under revisional jurisdiction. 7. He further submitted that for securing the ends of justice the conviction and sentence of the petitioner under Section 497 of Indian Penal Code is fit to be set aside. The learned counsel for the petitioner further submitted that otherwise also the petitioner has a good case on merit as evidences on record show that the petitioner has been convicted on the basis of hearsay evidence and on presumption and accordingly the prosecution has not been able to prove the case beyond all reasonable doubt. Arguments on behalf of the Opposite Party State Learned counsel appearing on behalf of the State on the other hand opposed the prayer and submitted that both the learned courts below have recorded concurrent findings of facts and accordingly no interference is called for in the present case under revisional jurisdiction. However it is not in dispute that Section 497 of the Indian Penal Code has been declared unconstitutional by the Hon’ble Supreme Court in the case of Joseph Shine versus Union of India. Findings of this Court 10. After hearing the learned counsel for the parties and going through the impugned judgments and the lower court records of the case this Court finds that the prosecution case is based on the written report dated 06.01.2001 lodged by the Informant namely Arun Kumar Mehta alleging inter alia that the Informant’s wife namely Nirmala Devi was absent in his house since 25.12.2000 at about 06:00 P.M. and he was informed by his sister’s sonthat on the same day the Informant’s wife has fled away from the house towards south with the petitioner and when he saw her and asked her as to where she is going then they scolded him and told him not to disclose to anyone and after showing an arm the petitioner threatened to kill him. It was further alleged that there was illicit relationship between Nirmala Devi and the petitioner. 11. On the basis of the written report the case was registered as Lesliganj P.S. Case No. 01 2001 dated 06.01.2001 under Sections 497 380 of the Indian Penal Code against the petitioner and Nirmala Devi. 12. After completion of investigation the Investigating Officer submitted charge sheet under the same sections against the petitioner and Nirmala Devi. Accordingly the learned I C C.J.M. Palamau at Daltonganj took cognizance of the offence under the same sections against them on 24.04.2001. 13. On 21.09.2001 the charges under Sections 497 380 of the Indian Penal Code were framed against the petitioner and Nirmala Devi which were read over and explained to them in Hindi to which they pleaded not guilty and claimed to be tried. In course of trial the prosecution examined altogether 08 witnesses to prove its case. P.W. 1 is Girja Devi P.W. 2 is Anirudh Mehta P.W. 3 is Nathuni Mahto P.W. 4 is Anup Mahto P.W. 5 is Rupwant Kumar P.W. 6 is Ram Kumar Mehta P.W. 7 is Basisth Kumar Mehta and P.W. 8 is Arun Kumar Mehta who is the Informant himself. The prosecution exhibited the written report of the Informant as Exhibit 1. 15. On 07.04.2008 and 26.04.2008 the statements of the petitioner and Nirmala Devi were recorded under Section 313 of Cr.P.C. wherein the petitioner denied the incriminating evidences put to him and claimed to be innocent. The petitioner did not adduce any oral evidence in his defence but exhibited certified copy of order dated 06.05.2003 passed by the District Judge Palamau in Matrimonial Case No. 5 2001 as Exhibit A. 16. The trial court considered the oral and documentary evidences adduced on behalf of the prosecution and the documentary evidence adduced on behalf of the petitioner as well as the arguments advanced on behalf of the parties and convicted the petitioner for the offence under Section 497 of the Indian Penal Code and sentenced him to undergo Rigorous Imprisonment for two years. However the learned trial court acquitted Nirmala Devi from the charges under Sections 497 and 380 of the Indian Penal Code and also acquitted the petitioner from the charge under Section 380 of the Indian Penal Code. 17. This Court further finds that the learned appellate court also considered the evidences adduced on behalf of the parties and the arguments advanced on their behalf and affirmed the conviction and sentence of the petitioner under Section 497 of the Indian Penal Code passed by the learned trial court. 18. After going through the judgment passed by the Hon’ble Supreme Court in the case of Joseph Shine decided on 27.09.2018 this Court finds that the Hon’ble Supreme Court has struck down Section 497 of the Indian Penal Code as unconstitutional being violative of Articles 14 15 and 21 of the Constitution of India Section 198(2) Cr.P.C. which contains the procedure for prosecution under Chapter XX IPC was also held to be unconstitutional only to the extent that it is applicable to the offence of adultery under section 497 IPC AND decision passed in the case of Sowmithri Vishnu versus Union of India V. Revathi versus Union of Indiaand W. Kalyani versus State 1 SCC 358] were overruled. 19. As per Article 141 of the Constitution of India the law declared by the Hon’ble Supreme Court is binding on all the courts within the territory of India and the law laid down by the Hon’ble Supreme Court applies to all pending proceedings. Upon perusal of the aforesaid decision of the Hon’ble Supreme Court there is no indication that the same would apply prospectively and there is nothing like any prospective operation of law laid down by the Hon’ble Supreme Court. In this regard reference may be made to the case of Maj. Genl. A.S. Gauraya and Another versus S.N. Thakur reported in2 SCC 709. 20. This Court finds that the present revision petition was admitted on 06.12.2013 and the petitioner was directed to be released on bail. During the pendency of the revision petition the section in which the petitioner was ultimately convicted i.e Section 497 IPC has been declared to be unconstitutional in the case of Joseph Shine versus Union of India decided on 27.09.2018 reported in3 SCC 39. The said judgement is a binding precedent under Article 141 of the Constitution of In view of the aforesaid Judgment passed by the Hon’ble Supreme Court the conviction and sentence of the petitioner under Section 497 of the Indian Penal Code passed by the learned trial court and affirmed by the learned appellate court is legally not sustainable and accordingly both the impugned judgments call for interference under revisional jurisdiction to prevent miscarriage of justice to the petitioner. 22. Accordingly the impugned Judgment dated 01.10.2013 passed by the learned Additional Sessions Judge VII Palamau at Daltonganj in Criminal Appeal No. 90 2008 as well as the conviction and sentence of the petitioner under Section 497 of the Indian Penal Code passed by the learned Judicial Magistrate 1st Class Daltonganj Palamau vide Judgment of conviction and the order of sentence dated 17.07.2008 in G.R. Case No. 33 of 2001 Trial No. 165 of 2008 is hereby set aside. Consequently the petitioner is discharged from the liability of 23. Accordingly this criminal revision petition is hereby his bail bond. 24. The office is directed to send back the Lower Court Records to the court concerned. 25. Let a copy of this Judgment be communicated to the court concerned through ‘FAX email’.

“Subordinate courts cannot assume jurisdiction and issue show cause notice as to why contempt proceedings be not initiated”: Delhi High Court

The issue whether a subordinate court can assume jurisdiction in excess of its authority and serve show cause notice as to why proceedings of criminal contempt should not be initiated against them was before consideration of the bench of Delhi High Court consisting of Justice Amit Bansal in the matters between ICICI Banks vs. Rashmi Sharma CM(M)-36/2022 decided on 12.1.2022. The facts of the case are that the defendant used a vehicle loan from the plaintiff ICICI Bank. When he defaulted on payments, the bank sent him a notice calling back the loan facility. The bank filed a compensation lawsuit against the defendant, after which he was served by the commercial court. The bank then took steps to fulfill the notification of service to the defendant. In addition, the bank sent a photograph of the summons issued by the commercial court to the accused via WhatsApp. In the next hearing, the commercial court decided to give a justified show cause notice to the bank as to why the criminal proceedings were not carried out or launched against them.This situation caused the bank to approach the Supreme Court for the annulment of this decision. The petitioners contended that there is no contradiction to the decision of the Commercial Court dated 16 August 2021, since the plaintiff has taken steps to serve the defendant both through ordinary service and expedited mail.A transaction fee has been duly incurred for the preparation of notifications for ordinary service by the transaction server and delivery of notifications by express mail to the plaintiff for delivery by express mail.Photograph of the subpoena was duly sent to the defendant via WhatsApp as per the judgment of 16 August 2021, although no steps were taken by the Claimant to serve via email. Photocopy of the summons was sent via WhatsApp only to ensure that the defendants are present at the Commercial Court at the next hearing date.Based on the Supreme Court’s decision during the period of the Supreme Court’s isolation, the service has been used by various electronic means, including WhatsApp.Even if the photograph of the summons was sent to the defendant via WhatsApp, no incidents of contempt less than criminal contempt were committed. No one appeared on behalf of the respondents despite advance service, whereas, considering facts and circumstances of the case, there is no requirement for issue of notice to the respondents. The Delhi High Court noted that by sending the summoned photograph to the defendant via WhatsApp, the court did not mean to circumvent the judicial system or to run a parallel system. The court also noted that the bank had paid a processing fee and had taken steps to issue an ordinary summons to the defendant by ordinary process and expedited mail to ensure that the defendant was brought before the commercial court.The court decided that there was no reason for the commercial court to make a figurative reason statement.Likewise, there was nothing malicious and the Court could not say that this was an attempt to circumvent the judicial system.Along with these observations, the lower court decision was annulled to the extent of issuing a show cause notification issued to the bank.

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

Public interest means interest of State and Citizens- Karnataka HC

Public interest plays an important role in every field. Profession, academics, and career are all complementary and supplementary to each other and constant competition of opportunity plays around to help an individual to secure and understand his/her worth. The same had been held in the case of Sri. Siddaraju v. State of Karnataka & Ors.,( WRIT PETITION NO. 11455 OF 2020 (S-TR). The court was of the view that “Before parting with this writ petition, this  Court deems it necessary to remind the State Government and the top Executives that appointments and transfers are required to be made in “public interest”. The facts of the case initiates when the petitioner who is a cadre of Chief Engineer was appointed as Director of Karnataka Power Transmission Corporation Limited, by an appointment dated 06.12.2019. The petitioner is aggrieved by the order passed by the respondent-State Government on 07.10.2020 by which respondent No.4 was named Director of KPTCL and the petitioner was appointed as Director of KPTCL. As Managing Director of Karnataka Limited’s Power Company (‘PCKL’ for short), by virtue of another order given on the same day. It is claimed that before the challenged order dated 07.10.2020 was passed, the fourth respondent was the Managing Director of ‘PCKL’. The learned counsel on behalf of the petitioner submitted that the appointment of the petitioner as Director of KPTCL on 06.12.2019 was certainly under the pleasure of the Government because the order of 06.12.2019 explicitly indicates that the appointment of the petitioner was ‘until further orders’; however, it is submitted that appointments made under the pleasure of the Government do not indicate an arbitrary license to function. On the other hand, the invocation by the Government of the doctrine of pleasure must be for fair and compelling reasons and cannot be at the hands of the State Government’s sweet will, whims and fancy, but it can be used only for legitimate reasons and the power referred to in the doctrine of pleasure can be used fairly and exclusively for the public good. In the case of the fourth respondent, the learned Senior Counsel argued that these were the terms used by the Hon’ble Division Bench when he challenged the order of this Court’s Coordinate Bench. When referring to Hon’ble’s decision in question it was submitted to the Division Bench that when the doctrine of enjoyment was invoked by the State Government, it was appropriate to state legitimate reasons either in the proposal or in the approval granted by the Honorable Chief Minister. It is argued that the proposal did not contain any legitimate reasons for putting an end to the services of the petitioner as Director, KPTCL, in the form of notes put forward before the Hon’ble Chief Minister, and neither did the Hon’ble Chief Minister provide reasons for approving the proposal. On the basis of the evidence, it was submitted that the fourth respondent was due to reach the age of superannuation on 31.01.2021, while on 30.04.2021 the applicant was due to reach the age of superannuation. It is argued that it is difficult to understand what led the respondent-State Government, on the verge of his retirement, to nominate the fourth respondent as Director, KPTCL. In addition, it was alleged that the fourth respondent had no experience in the field of transmission. Since November 2019, the petitioner had earlier served as Chief Engineer, Transmission Zone, Bagalkot, and as Director (Transmission). The respondent counsel on the other hand had submitted that if this writ were to succeed the petitionerPetition, and if the Court were to set aside the challenged petition, it will be of no benefit to the order dated 07.10.2020, since the petitioner took over as Managing Director, the petitioner has MEI Limited’s Director on 16.10.2020. Thus the Court had held that “Therefore, this Court is of the opinion that in the interest of the KPTCL, the State and the citizens, it would not be proper in directing the State Government to reconsider the appointment of the respondent No.4 as Director, KPTCL.”

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 01ST DAY OF DECEMBER 2020 THE HON BLE MR.JUSTICE R. DEVDAS WRIT PETITION NO.11455 OF 2020SRI SIDDARAJU S O KARIPUTTAIAH AGED ABOUT 59 YEARS WORKING AS DIRECTOR KPTCL CORPORATE OFFICE CAUVERY BHAVAN K R CIRCLE BENGALURU 560001 BENGALURU CITY BY PROF RAVIVARMA KUMAR SENIOR COUNSEL FOR SMT H R RENUKA ADVOCATE) 1 . STATE OF KARNATAKA BY ITS PRINCIPAL SECRETARY TO GOVT DEPARTMENT OF ENERGY VIDHANA SOUDHA DR AMBEDKAR VEEDHI BENGALURU 560001 BENGALURU CITY 2 . KARNATAKA POWER TRANSMISSION CORPORATION LIMITED CORPORATE OFFICE CAUVERY BHAVAN K G ROAD BENGALURU 560009 2 3 . BESCOM CORPORATE OFFICE K R CIRCLE BENGALURU 560001 REP BY ITS MANAGING DIRECTOR 4 . B K UDAYKUMAR AGED ABOUT 59 YEARS WORKING AS MANAGING DIRECTOR 5TH FLOOR KPDCL BUILDING KAVERI BHAVAN BENGALURU 560001 BY SRI R SUBRAMANYA AAG A W SMT M C NAGASHREE AGA FOR R1 SMT SHASHI KIRAN SHETTY SENIOR COUNSEL FOR SMT LATHA S SHETTY ADVOCATE FOR C R4 SRI SREERANGA ADVOCATE FOR R2 & R3 ) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 7.10.2020 ISSUED BY THE R 1 VIDE ANNEXURE B AS ARBITRARY AND VIOLATIVE OF ARTICLE14 OF THE CONSTITUTION OF INDIA BLATANT AND INCONSISTENT WITH THE DECLARATION OF LAW BY THIS COURT IN UDAY KUMAR VS STATE OF KARNATAKA PASSED IN WP. NO.33296 2019 AND WRIT APPEAL NO.3843 2019 AND ETC. THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED ON 23.11.2020 AND COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY THE COURT MADE THE FOLLOWING: The petitioner who is in the cadre of Chief Engineer was appointed as Director of Karnataka Power Transmission Corporation Limited by order of appointment dated 06.12.2019. The petitioner is aggrieved by the order dated 07.10.2020 passed by the respondent State Government whereby respondent No.4 was appointed as Director of KPTCL and the petitioner was appointed as Managing Director of Power Company of Karnataka Limited by virtue of another order passed on the same day. It is submitted that the fourth respondent was the Managing Director of ‘PCKL’ till the impugned order dated 07.10.2020 was passed. 2. Prof. Ravivarma Kumar learned Senior Counsel appearing for the petitioner submitted that no doubt the appointment of the petitioner on 06.12.2019 as Director KPTCL was under the pleasure of the Government as the order dated 06.12.2019 clearly mentions that the appointment of the petitioner was “until further orders” nevertheless it is submitted that appointments made under the pleasure of Government does not mean licence to act arbitrarily. On the other hand invocation of doctrine of pleasure by the Government must be for good and compelling reasons and it cannot be at the sweet will whims and fancy of the State Government but it can only be for valid reasons and the power referable to the doctrine of pleasure can be used reasonably and only for public good. The learned Senior Counsel submitted that these were the words used by the Hon’ble Division Bench in the case of the fourth respondent when he challenged the order of a co ordinate Bench of this Court in W.P.No.33296 2019 before the Division Bench 3. The learned Senior Counsel submits that in W.A.No.3843 2019 clause of Article 74 of the Articles of Association of BESCOM which conferred on the State Government power to nominate and appoint Directors to the office of the Board of Directors or Managing Director or fulltime Directors of the Company fell for consideration at the hands of the Hon’ble Division Bench. It is submitted that in the present case with respect to KPTCL similar provision of law in the form of Clauseof Article 30 of the Memorandum of Association and Articles of Association of KPTCL has been invoked by the respondent State Government. 4. While referring to the said decision of Hon’ble Division Bench it was submitted that when the doctrine of pleasure was invoked by the State Government valid reasons either in the proposal or in the approval granted by the Hon’ble Chief Minister was necessary. It is submitted that the proposal in the form of notings put up before the Hon’ble Chief Minister did not contain any valid reasons for putting an end to the services of the petitioner as Director KPTCL and neither did the Hon’ble Chief Minister furnish reasons while approving the proposal. On facts it was submitted that the fourth respondent is due to attain the age of superannuation on 31.01.2021 while the petitioner would attain the age of superannuation on 30.04.2021. It is submitted that is difficult to understand what prompted the respondent State Government to appoint the fourth respondent as Director KPTCL at the verge of his retirement. Moreover it was submitted that the fourth respondent did not possess any experience in the field of transmission. The petitioner had earlier worked as Chief Engineer Transmission Zone Bagalkot and as Directorsince November 2019. 5. During the course of the argument it was pointed out by the learned Counsels for the respondents that though the petitioner was appointed as Director of PCKL by order dated 07.10.2020 he did not report for duty. Subsequently the State Government issued one more notification dated 16.10.2020 appointing the petitioner as Managing Director Mysore Electrical Industries Limited 5 SCC 142 submitted that once the basis of a proceeding is gone by virtue of an order passed by this Court an intermediate action taken in the meantime would fall to the ground. While drawing the attention of this Court to paragraph 27 of Badrinath’s case it was submitted that the principle of ‘consequential orders’ which is applicable to judicial and quasi judicial proceedings is equally applicable to administrative orders. Similarly it was pointed out from paragraphs 32 and 33 of Ananta Saha’s case that in case a foundation is removed the superstructure falls. In the opinion of this Court the subsequent in the respondent State Government appointing the petitioner as Director of PCKL by order dated 07.10.2020 and thereafter one more notification dated 16.10.2020 issued by the State Government appointing the petitioner as Managing Director MEI Ltd. consequent to which the petitioner taking charge as Managing Director of MEI Ltd. on 16.10.2020 without demure assumes significance. Normally when transfer orders are challenged before a court of law or tribunal and during the pendency of such proceedings if another order of transfer is passed and the transferee assumes charge by virtue of the subsequent order of transfer without protest and without raising a challenge to the subsequent orders the pending proceedings are disposed of as having become infructuous. The obvious reason behind the disposal of the proceedings as having become infructuous is that no useful purpose would be served in proceeding to consider the validity of the previous order of transfer unless the subsequent order of transfer is also questioned by amending the memorandum of petition raising grounds of challenge and seeking a specific prayer to set aside the subsequent order of transfer is made a decision on the previous order of transfer would be rendered useless. It is not a matter of right that by quashing the previous order of transfer that all subsequent orders would axiomatically fall to the ground. In the case of Badrinath the Hon’ble Supreme Court was considering the action of the State Government initiating subsequent proceedings against a delinquent IAS Officer ignoring the earlier decision of the Governor who while exercising the powers of the State Government during President’s Rule had dropped the disciplinary proceedings against the delinquent officer. Merely because the matter had gone to the UPSC before the Governor dealt with the issue and thereafter a letter was received from the UPSC based on which a subsequent order of censure was passed by the State Government ignoring the decision of the Governor who had exercised the powers of the Government and had dropped the It was therefore held consequential communication made by the UPSC had no validity in the eye of law once the Governor had dropped the disciplinary proceedings. Such is not the case on hand. 10. Similarly in the case of Ananta Saha supra) the CMD ECL had passed an order initiating disciplinary proceedings consequent to the High Court in the earlier writ proceedings granting liberty to hold de nova enquiry quashing the earlier proceedings. It was held that it was not permissible for the appellants to proceed on the basis of the charge sheet issued earlier. Therefore while holding that the order of the CMD was not sufficient to initiate fresh disciplinary proceedings the Hon’ble Supreme Court held that if initial action is not in consonance with law subsequent proceedings would not sanctify the same. In such fact situation the legal maxim sublato fundamento cadit opus was said to be applicable meaning thereby in case a foundation is removed the superstructure falls. This decision too is not applicable to the factual matrix of this case. There is no challenge raised by the petitioner to his subsequent appointment as Managing Director MEI Ltd. Therefore even if this Court were to quash the impugned order it would not be sufficient to put the petition back in place as Director KPTCL. The two orders are independent orders issued by the State Government invoking the doctrine of pleasure. 11. Moreover the admitted facts in the instant case is that the respondent No.4 who has taken charge as Director of KPTCL by virtue of the impugned order dated 07.10.2020 is due to attain the age of superannuation on 31.01.2021 while the petitioner attains the age of superannuation on 30.04.2021. Therefore this Court is of the opinion that in the interest of the KPTCL the State and the citizens it would not be proper in directing the State Government to reconsider the appointment of the respondent No.4 as Director KPTCL. 12. Before parting with this writ petition this Court deems it necessary to remind the State Government and the top Executives that appointments and transfers are required to be made in “public interest”. Public interest means the interest of the State and the citizens. If the same is followed in letter and spirit the powers that be would not have to face inconvenient questions and such actions would considerably reduce unwanted litigations. It is sad that though this Court and the Hon’ble Apex Court have time and again reminded the powers that be of their constitutional obligation to act in accordance with law both in letter and spirit orders of appointment and transfers are made with utter disregard to the reminders and have become source of genuinely avoidable litigations. It would be apt to quote the 14 prophetic words of Dr.B.R.Ambedkar “However good a Constitution may be if those who are implementing it are not good it will prove to be bad. However bad a Constitution may be if those implementing it are good it will prove to be good.” 13. For the reasons stated above the writ petition stands dismissed. No order as to costs. Sd

Rape-accused acquitted after 20 years of wrongful conviction: Allahabad High Court

Accused wrongfully convicted for Rape, criminal intimidation, and charges under Scheduled Castes and Scheduled Tribes Act, 1989 was acquitted after being in jail for 20 years. The Allahabad High Court set aside the conviction of the said accused in the case of Vishnu vs. State of Uttar Pradesh [Criminal Appeal no. 204 of 2021] presided over by the bench of Hon’ble Justice Kaushal Jayendra Thaker and Justice Gautam Chaudhary. In the above-cited case, on 16-9-2000, the accused had tried to rape the prosecutrix for which he was convicted for the charges of Rape and criminal intimidation and other offences under Scheduled Castes and Scheduled Tribes Act, 1989. The Appellant (accused) was in jail for 20 years. He had made an appeal for challenging his conviction by the session’s court which was finally being heard in the High Court on 28th January 2021. Files were re-opened and it was found that in the medical examination of the prosecutrix, no injury was seen inside or outside her private parts. No proof showed that Rape was committed. The FIR was lodged by the woman’s family after 3 days of the incident which somehow gave an impression that they must have strategized the whole incident. Also, the testimony of the prosecutrix was found not to be that of a sterling witness and the medical evidence on evaluation belied any case against the accused/ appellant. It was found that after 14 years of incarceration, the State of UP did not send the matter to the Magistrate for a re-evaluation of the cases for remission as per the mandate of Sections 432 and 433 of Cr.P.C. and as held by Apex Court in a catena of decisions even if appeals are pending in the High Court. The High Court contended that the case was not grave and it could have been considered for remission/ commutation. Hence, Allahabad High Court took the decision of acquitting the rape accused after being sentenced for 20 years and stated that “Most unfortunate, aspect of this litigation is that the appeal was preferred through the jail. The matter remained as a defective matter for a period of 16 years and, therefore, we normally do not mention defective appeal number but we have mentioned the same.”

1 Court No. 49 Case : CRIMINAL APPEAL No. 2021read with Section 3(2)(v) of Scheduled Casts and Scheduled TribesAct 1989 Police Station Mehroni District Lalitpur whereby the accused appellant was convicted under Section 376 IPC and sentenced to imprisonment for a period of ten years with fine of Rs.2 000 and in case of default of payment of fine to undergo further rigorous imprisonment for six months he was further convicted under Section 3(2 read with Section 3(1)(xii) of Scheduled Casts and Scheduled Tribes Prevention of Atrocities) Act 1989 and sentenced to imprisonment for life with fine of Rs.2 000 and in case of default of payment of fine to undergo further rigorous imprisonment for six months and he was further convicted under Section 506 IPC and sentenced to undergo rigorous imprisonment under Section 506 IPC. All the sentences were to run concurrently as per direction of the Trial Court. The brief facts as per prosecution case are that on 16.9.2000 at about 2:00 p.m. the prosecutrix was going from her house in village Silawan P.S. Mehroni to Haarwhen she reached near mango tree named black mango tree situted on the road leading to Zaraia accused Vishnu son of Rameshwar Tiwari who had hidden behind the bushes caught hold of her with bad intention and behind the bushes he committed rape with her by pressing her mouth and went away extending threat that if any report is lodged at the police station or this fact is divulged to anyone he will kill her. She went back to the house and disclosed the whole incident to her family members who did not go to the police station due to threat and went to Lalitpur and on 19.9.2000 she along with her father in law Gulkhai and husband Bragbhan hiding themselves went to the police station for reporting the said incident C.O. Narahat Akhilesh Narain Singh tookup the investigation visited the spot prepared site plan recorded statements of the prosecutrix and witnesses and after completing investigation submitted charge sheet against the accused C.O. Narahat Akhilesh Narain Singh tookup the investigation visited the spot prepared site plan recorded statements of the prosecutrix and witnesses and after completing investigation submitted charge sheet against the accused The prosecution so as to bring home the charges examined six witnesses who are as under: 3 Gulkhaiand 3(2)(v) of S.C. S.T Act 1989 is concerned the learned Sessions Judge convicted the accused due to the fact that the victim was a person belonging to Scheduled Caste Community though there were no allegations as regard the offence being committed due to the caste of the prosecutrix and there were no allegations of commission of offence which would attract the provision of Section 3(2)(v) read with Section 3(1)(xii) of SC ST Act Learned counsel for appellant has relied on the following decisions of the Apex Court rendered in the case of Sadashiv Ramrao Hadbe Vs Alld(Cri) so as to contend and submit that in fact no case is made out so as to convict the accused under Section 376 IPC leave apart the offence under Sections 506 IPC and Section 3(1)(xii) and read with Section 3(2)(v) of S.C. S.T. Act 1989 and the prosecutrix has roped in the accused with ulterior motive i.e. land dispute between her family members and the accused. It is submitted by learned counsel for the State that prosecutrix belongs to Scheduled Caste community and the judgment of learned Trial Judge cannot be found fault with just because there is silence on the part of the prosecutrix. It is submitted that the incident occurred because of the caste of the prosecutrix. It is further submitted that any incident on person belonging to a particular caste would be an offence. It is further submitted by learned counsel for the State that the accused ravished the prosecutrix as she was belonging to lower strata of life. Learned counsel for the appellant has relied on the judgment of Sadashiv Ramrao Hadbe Vs. State of Maharashtraand has submitted that she presses for clean acquittal of the accused and not for a fixed term incarceration though the appellant has been in jail for more than 20 years. In support of her submission she presses into service the judgment in the case of Manne Siddaiah @ Siddiramulu (xii) and Section 3(2)of the Act read with Section 376 of the Code. The conviction as well as the sentence of the appellant herein is set aside.” Learned counsel for appellant presses into service the judgment in the case of Sadashiv Ramrao Hadbe Vs. State of MaharashtraAct 1989 and has contended that the incidence reported is prior to 2016 amendment more particularly relates to the year 2000 where no offence of S.C. S.T. Act 1989 has been committed on the lady on the basis of her caste belonging to a particular caste. The learned Trial Judge has misread the provisions of law just because the prosecutrix is belonging to scheduled caste community the offence would not be made out 15. We are unable to convince ourselves with the submission made by learned AGA for State that she has been a victim of atrocity as well rape and therefore the accused should not be leniently dealt with. 16. We have been taken through the evidence and the deposition mainly of prosecution witnesses and judgment of Trial Court. We have read the same and are discussing the same. of the Scheduled Castes and Scheduled Tribes Act 1989 read as follows : “(xii) being in a position to dominate the will of a woman belonging to a Scheduled Caste or a Scheduled Tribe and uses that position to exploit her sexually to which she would not have otherwise agreed ” Provision of Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes Act 1989 read as follows : v) commits any offence under the Indian Penal Codepunishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member shall be punishable with imprisonment for life and with fine Provision of Section 376 I.P.C. read as follows : “376. Punishment for rape.— 1) Whoever except in the cases provided for by sub sectioncommits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age in which cases he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Provided that the court may for adequate and special reasons to be mentioned in the judgment impose a sentence of imprisonment Whoever — a) being a police officer commits rape— i) within the limits of the police station to which he is ap pointed or ii) in the premises of any station house whether or not situated in the police station to which he is appointed or iii) on a woman in his custody or in the custody of a police officer subordinate to him or b) being a public servant takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him or c) being on the management or on the staff of a jail remand home or other place of custody established by or under any law for the time being in force or of a woman’s or children’s insti tution takes advantage of his official position and commits rape on any inmate of such jail remand home place or institution d) being on the management or on the staff of a hospital takes advantage of his official position and commits rape on a woman in that hospital or e) commits rape on a woman knowing her to be pregnant or f) commits rape on a woman when she is under twelve years of age or g) commits gang rape shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the Court may for adequate and special reasons to be mentioned in the judgment impose a sentence of imprisonment of either description for a term of less than ten years. Explanation 1.—Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention each of the persons shall be deemed to have committed gang rape within the meaning of this sub section. Explanation 2.—“Women’s or children’s institution” means an institution whether called an orphanage or a home Rafiq Versus State of U.P. AIR 1981 SC page 559 Nawab Khan Versus State 1990 Cri.L.J. Page 1179 and the judgment in Bharvada Bhogin Bhai Hirji Bhai Versus State of Gujarat AIR 1983 SC page of Evidence 29. We venture to discuss the evidence of the prosecutrix on which total reliance is placed and whether it inspires confidence or not so as to sustain the conviction of accused. There were concrete positive signs from the oral testimony of the prosecutrix as regards the commission of forcible sexual intercourse. In case of Ganesan Versus State Represented by its Inspector of Police Criminal Appeal No. 6820No.49720) decided on 14.10.2020 wherein the principles of accepting the evidence of the minor prosecutrix or the prosecutrix are enshrined the words may be that her testimony must be trustworthy and reliable then a conviction based on sole testimony of the victim can be based. In our case when we rely on the said decision it is borne out that the testimony of the prosecutrix cannot be said to be that of a sterling witness and the medical evidence on evaluation belies the fact that any case is made out against the accused. The evidence of Dr. Smt. Sarojini Joshi Medical Officer PW 4 C.H.C. Mehroni who medically examined the prosecutrix on 19.9.2000 at 8:45 p.m. found no external or internal injury on the person of the victim On preabclomen examination uterus size was 20 weeks and ballonement of uterus who was present. On internal examination vagina of the victim was permitting insertion of two fingers. Internal uterine ballonement was present. The victim complained of pain during internal examination but no fresh injury was seen inside or outside the private part. Her vaginal smear was taken on the slide sealed and sent for pathological investigation for examination. The doctor opined both in occular as well as her written report that the prosecutrix was having five months pregnancy and no definite opinion about rape could be given In the x ray examination both wrist A.P. all eight carpal bones were found present. Lower epiphyses of both writst joints were not fused on which he complained some villagers about the accused who denied about the incident therefore they decided to go to the police station on the next day but the police refused to lodge the report on the ground that no one was present in the police station therefore they went on third day of the incident to lodge the FIR. After this again he contradicts his story in his own statement recorded on cross examination on the next date stating that the incident was told by his daughter in law to his wife who told him about the same. There is further contradiction in the statements of this witness. In examination in chief he states that the parties called for Panchayat but there is nothing on record that who were the persons called for Panchayat. If the pregnant lady carries fifth month pregnancy is thrashed forcefully on the ground then there would have been some injury on her person but such injuries on her person are totally For maintaining the conviction under Section 376 Cr.P.C. medical evidence has to be in conformity with the oral testimony. We may rely on the judgment rendered in the case of Bhaiyamiyan @ Jardar Khan and another Versus State of Madhya Pradesh 2011 SCW3104. The chain of incident goes to show that the prosecutrix was not raped as would be clear of Scheduled Casts and Scheduled Tribes Prevention of Atrocities) Act 1989 is concerned the FIR and the evidence though suggests that any one or any act was done by the accused on the basis that the prosecutrix was a member of Scheduled Castes and Scheduled Tribes then the accused can be convicted for commission of offence under the said provision. The learned Trial Judge has materially erred as he has not discuss what is the evidence that the act was committed because of the caste of the prosecutrix. The sister in law of the prosecutrix had filed such cases her husband and father in law had also filed complaints. We are unable to accept the submission of learned AGA that the accused knowing fully well that the prosecutrix belongd to lower strata of life and therefore had caused her such mental agony which would attract the provision of Section 3(2)(v) of the Atrocities Act. The reasoning of the learned Judge are against the record and are perverse as the learned Judge without any evidence on record on his own has felt that the heinous crime was committed because the accused had captured the will of the prosecutrix and because the police officer had investigated the matter as a attrocities case which would not be undertaken within the purview of Section 3(2)(v) of Atrocities Act and has recorded conviction under Section 3(2)(v) of Act which cannot be sustained. We are supported in our view by the judgment of Gujarat High Court in Criminal Appeal No.706 in the case of Pudav Bhai Anjana Patel Versus State of Gujarat decided on 8.9.2015 by Justice M.R. Shah and Justice Kaushal Jayendra Thakera sentence of death for any other punishment provided by the Indian Penal Code b) a sentence of imprisonment for life for imprisonment for a term not exceeding fourteen years or for fine c) a sentence of rigorous imprisonment for simple imprisonment for any term to which that person might have been sentenced or for fine a sentence of simple imprisonment for fine.” “Section 434. Concurrent power of Central Government in case of death sentences. The powers conferred by sections 432 and 433 upon the State Government may in the case of sentences of death also be exercised by the Central Government.” Section 433 and 434 of the Cr.P.C. enjoins a duty upon the State Government as well as Central Government to commute the sentences as mentioned in the said section. We are pained to mention that even after 14 years of incarceration the State did not think of exercising its power for commutation of sentence of life imprisonment of the present accused and it appears that power of Governor provided under Article 161 of the Constitution of India are also not exercised though there are restriction to such power to commute sentence. The object of Sections 432 read with Section 433 of the Cr.P.C. is to remit the sentence awarded to the accused if it appears that the offence committed by him is not so grave. In our case we do not see that why the accused is not entitled to remission. His case should have been considered but has not been considered Remission commutation of sentence under Sections 433 and 434 of the Cr.P.C. is in the realm of power vested in the Government. The factual scenario in the present case would show that had the Government thought of taking up the case of the accused as per jail manual it would have been found that the case of the appellant was not so grave that it could not have been considered for remission commutation. 48. Most unfortunate aspect of this litigation is that the appeal was preferred through jail. The matter remained as a defective matter for a period of 16 years and therefore we normally do not mention defective appeal number but we have mentioned the same. This defective conviction appeal was taken up as listing application was filed by the learned counsel appointed by Legal Services Authority on 6.12.2012 with a special mention that accused is in jail since 20 years. Seeing this sorry State of Affairs we request the Registrar (Listing [ 17 through the Registrar General to place the matter before Hon ble the Chief Justice that periodical listing of matters be taken up in the High Court so that those who are in jail for more than 10 or 14 years where the appeals are pending may at least get their appeal heard which are mainly jail Section 433 and 434 of the Cr.P.C. enjoins a duty upon the State Government as well as Central Government to commute the sentences as mentioned in the said section. We are pained to mention that even after 14 years of incarceration the State did not think of exercising its power for commutation of sentence of life imprisonment of the present accused and it appears that power of Governor provided under Article 161 of the Constitution of India are also not exercised though there are restriction to such power to commute sentence. The object of Sections 432 read with Section 433 of the Cr.P.C. is to remit the sentence awarded to the accused if it appears that the offence committed by him is not so grave. In our case we do not see that why the accused is not entitled to remission. His case should have been considered but has not been considered Remission commutation of sentence under Sections 433 and 434 of the Cr.P.C. is in the realm of power vested in the Government. The factual scenario in the present case would show that had the Government thought of taking up the case of the accused as per jail manual it would have been found that the case of the appellant was not so grave that it could not have been considered for remission commutation. Seeing this sorry State of Affairs we request the Registrar (Listing through the Registrar General to place the matter before Hon ble the Chief Justice that periodical listing of matters be taken up in the High Court so that those who are in jail for more than 10 or 14 years where the appeals are pending may at least get their appeal heard which are mainly jail 52. A copy of this judgment be sent to the Law Secretary State of U.P who shall impress upon the District Magistrates of all the districts in the State of U.P. to reevaluate the cases for remission after 14 years of incarceration as per mandate of Sections 432 and 433 of Cr.P.C. even if 18 appeals are pending in the High Court.

Irregularity and illegality cannot be perpetuated on the ground that illegal benefits have been extended to others: High Court of Delhi

Article 14 does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. Article 14 is positive concept and cannot be enforced in a negative manner. Irregularity and illegality cannot be perpetuated on the ground that illegal benefits have been extended to others and the same was upheld by High Court of Delhi through the learned bench led by Justice Manmohan in the case of SURENDER SINGH CHAUHAN vs. UNION OF INDIA & ORS. [W.P.(C) 2557/2022] on 10.02.2022. The facts of the case are that the Petitioner stated that initially he joined Border Road Organisation and in 2019 he was promoted to the post of UDC. Pursuant to the advertisement published in the Employment News, the Petitioner, being an eligible candidate applied for the post of Senior Secretariat Assistant on deputation basis with the Anthropological Survey of India. The application of the Petitioner for deputation was forwarded by the Commanding Officer to the appropriate authority along with all connecting papers including recommendation, etc. However, the Respondents rejected the request of the Petitioner to forward his application. The Petitioner’s application was rejected certain other similarly situated personnel have been issued No Objection Certificates by the Respondents. Through the present writ petition, the petitioner has challenged the letter whereby respondent rejected the request of the petitioner to forward his application for deputation. The petitioner’s counsel stated that the impugned order is highly discriminatory, arbitrary and illegal, and the petitioner has been singled out, which led to the filing of the present writ petition. The respondent’s counsel stated that the plea based on Article 14 is completely vague and without any merit as in the present petition it has not been asserted that any of the officers to whom permission to proceed on deputation has been granted is otherwise ineligible for the same. Consequently, the ground of discrimination is not attracted to the facts of the present case. In the view of facts and circumstances, the consistent view of this Court was that Article 14 of the Constitution of India is a positive concept and does not promote negative equality. The Court observed that “Article 14 does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. Article 14 is positive concept and cannot be enforced in a negative manner. Irregularity and illegality cannot be perpetuated on the ground that illegal benefits have been extended to others.”

IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(C) 2557 2022 & CM APPLs.7325 26 2022 SURENDER SINGH CHAUHAN ..... Petitioner Through: Mr. Rohit Bhagat Advocate. Through: Mr. Dilbag Singh Adv. for UOI. ..... Respondents Date of Decision: 10th February 2022 UNION OF INDIA & ORS. HON BLE MR. JUSTICE MANMOHAN HON BLE MR. JUSTICE NAVIN CHAWLA JUDGMENT MANMOHAN J The petition has been heard by way of video conferencing. Present writ petition has been filed challenging the letter dated nd February 2022 whereby Respondent No.2 rejected the request of the petitioner to forward his application for deputation to the office of Respondent No.3. Petitioner further seeks quashing of the impugned Policy decision letter dated 10th January 2018. Petitioner also seeks directions to Respondent No.2 to forward the application of the petitioner to the office of Respondent No.3 and upon his final selection to the post of “Senior Secretariat Assistant” issue final “Vigilance Clearance Certificate” and “No Objection Certificate” in favour of the Petitioner to enable him to join the WP(C) 2557 2022 office of Respondent No.3. Learned counsel for the Petitioner states that initially the petitioner had joined Border Road Organisationas LDC in 2008 and in 2019 he was promoted to the post of UDC. He states that pursuant to the advertisement published in the Employment News dated 18 24th December 2021 the Petitioner being an eligible candidate applied for the post of Senior Secretariat Assistant on deputation basis with the Anthropological Survey of India. He further states that the Petitioner vide letter dated January 2022 requested the Parent department i.e. BRO through proper channel to forward his application for deputation along with appropriate Learned counsel for the Petitioner states that the application of the Petitioner for deputation was forwarded by the Commanding Officer to the appropriate authority along with all connecting papers recommendation etc. However he states that the Respondents rejected the request of the Petitioner to forward his application vide the impugned nd February 2022. He states that the application of the order dated 2 Petitioner has been rejected relying on the provisions of the Policy decision letter dated 10th January 2018 which does not have the sanction from Ministry of Defence. Learned counsel for the Petitioner also emphasises that certain other similarly situated personnel have been issued No Objection Certificates by st February 2022 the Respondents. He also relies upon the order dated 1 passed by Gauhati High Court in W.P.(C) 454 2022 wherein the High Court had directed the BRO to forward the Petitioner’s application therein to Anthropological Survey of India2557 2022 5. Learned counsel for the Petitioner states that the Petitioner has very limited scope for promotion in his present organisation since the number of promotional posts is very limited and the Petitioner would have a higher chance of securing promotion to the next higher rank of Administrative Officer in the new organization. Learned counsel for the Petitioner states that the impugned order is highly discriminatory arbitrary and illegal and the Petitioner has been singled out which led to the filing of the present writ petition. This Court in Kamlesh Kumar Jha vs. Directorate General Border Roads and Ors. in W.P.(C) 1306 2022 decided on 3rd February 2022 has held that an employee of BRO has no fundamental right to claim deputation to any other organisation or department. He has only a right of fair consideration in accordance with the policy and needs of the organisation. In the present case apart from making a bald assertion that similarly placed officers have been allowed by the respondent BRO to proceed on deputation while the Petitioner’s application has been rejected the Petitioner has not provided the details of those officers as to how his case for being allowed to proceed on deputation is superior to them. This court is not expected to indulge in a fishing and roving inquiry to determine the comparative merit and demerit of the cases of these officers especially in their absence. The plea based on Article 14 is completely vague and without any merit. In the present petition it has not been asserted that any of the officers to whom permission to proceed on deputation has been granted is otherwise ineligible for the same. Consequently the ground of discrimination is not attracted to the facts of the present case. WP(C) 2557 2022 10. The order passed by Gauhati High Court relied upon by learned counsel for the Petitioner is only an interim order. It has no precedentary value and is not binding on this Court. In Kamlesh Kumar Jha vs. Directorate General Border Roads and Ors. in W.P.(C) 1306 2022 decided on 3rd February 2022 this Court has further held that “....with all due respect this Court is not in agreement with the view taken by Gauhati High Court. In fact the consistent view of this Court has been that Article 14 of the Constitution of India is a positive concept and does not promote negative equality. 12. The Supreme Court in Union of India v. M.K. Sarkar 2 SCC 59 has held that “Article 14 is positive concept and cannot be enforced in a negative manner. Irregularity and illegality cannot be perpetuated on the ground that illegal benefits have been extended to others.” The Supreme Court in Basawaraj and Another vs. Special Land Acquisition Officer 2013) 14 SCC 81 has also held “Article 14 does not envisage negative equality but has only a positive aspect. Thus if some other similarly situated persons have been granted some relief benefit inadvertently or by mistake such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case it cannot be perpetuated.” Even a Division Bench of this Court relied in Shyam Singh & Ors. vs. Union of India & Orshas held that “... It is well settled that Article 14 is a positive concept and no direction can be issued on the plea of discrimination wherein the earlier decision itself was improper and wrong. In view of the above findings we find no merit in the present writ petition and other connected writ petitions and they are dismissed.” WP(C) 2557 2022 13. This Court also finds that the Petitioner’s application for deputation has not been approved in accordance with the policy decision of the Respondent’s letter dated 10th January 2018. It is settled law that Government is bound to follow the rules and standards they themselves had set. Consequently the impugned decision calls for no interference. 14. Assuming without admitting that the policy decision dated 10 January 2018 is void then complete discretion to approve or reject the request for deputation would vest with the superior officers of the Respondents. In the present case there is nothing to show that the decision of the Respondents is perverse or vitiated by malice. 15. Moreover the Petitioner is an employee of BRO. If promotional avenues in BRO are limited then the Petitioner should not have joined the If the Petitioner’s argument of limited promotional prospect is taken to be a good ground for deputation then all UDC’s and LDC’s in BRO would have to be allowed to proceed on deputation leaving the BRO the primary employer without any adequate staff! 17. Keeping in view the aforesaid conclusions the present writ petition and applications being bereft of merit are dismissed. MANMOHAN J NAVIN CHAWLA J FEBRUARY 10 2022 WP(C) 2557 2022

The provision of bail as laid down in Section 167 of the Cr.P.C. has been held to be a mandatory provision and is termed as the “default bail”: Gauhati High Court

The right to be released on bail under Section 167 (2) Proviso (a) was indefeasible right and subsequent filing of the charge sheet did not distinguish the right accrued by an accused to be released on bail. Such an opinion was held by The Hon’ble High Court of Gauhati before The Hon’ble Mr. Justice Sanjay Kumar Medhi in the matter of Hanufa Nasrin Vs. The State Of Assam And Anr [Case No. : Crl.Pet./668/2021].  The facts of the case were associated with an application filed under Section 482 of the Cr.P.C. and challenged a series of orders from various dates passed by the learned Court of Sessions Judge, Barpeta. In one of that impugned orders, the petitioner was framed with charges and was again remanded to judicial custody. The petitioner’s bail plea was rejected too. Similarly, the various pleas for bail were rejected. The petitioner was arrested in connection to the case under Section 302 of the IPC. A default bail was granted to him but he was not in a position to arrange the surety and other formalities. The petitioner sought bail after getting arrested. On 28.05.2021 the said bail was considered and it was found that the final form was yet to be submitted and also the mandatory period was over, the petitioner was allowed to go on bail of Rs.10,000/-. However, the said prayer was rejected by the learned CJM, Barpeta. It was stated that the main cause of the present proceeding was to find the legality and validity of the orders. A case reference of AIR Online 2020 SC 607: S. Kasi Vs. State was submitted wherein the Hon’ble Supreme Court stated that denial of bail by submitting that due to restrictions imposed during the lockdown, charge sheet could not be submitted within the prescribed period was clearly erroneous and not in accordance with the law. The Hon’ble Court examining all the submissions held that “ In view of the above, the present application is allowed and the impugned orders dated 30.09.2021, 26.10.2021 and 11.11.2021 are set aside.  Since, it is seen that the petitioner had fulfilled the conditions imposed by the learned CJM, Barpeta while granting default bail vide the order dated 28.05.2021, the petitioner be released forthwith by the learned Court by reconfirming the fulfillment of the conditions. It is needless to state that the petitioner shall continue to render full cooperation in the trial and / or not indulge any activities detrimental to the same.”

Page No.# 1 4 THE GAUHATI HIGH COURT HIGH COURT OF ASSAM NAGALAND MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet. 668 2021 HANUFA NASRIN D O HANIF ALI CHOUDHURY R O HOWLY TOWN WARD NO. 3 P.S. HOWLY DIST. BARPETA ASSAM PIN 781316 THE STATE OF ASSAM AND ANR REP. BY THE PP ASSAM S O ABDUL MALEK R O CHAPRA P.S. BARPETA ASSAM PIN 78130 Advocate for the Petitioner : MR. S C BISWAS Advocate for the Respondent : PP ASSAM B E F O R E Hon’ble MR. JUSTICE SANJAY KUMAR MEDHI Date of hearing & judgment : 23.11.2021 Judgment & OrderPage No.# 2 4 Heard Shri S.C. Biswas learned counsel along with Shri F.A. Hassan learned counsel for the petitioner. The respondent No. 1 State is represented by Shri R.J. Baruah learned Additional Public Prosecutor Assam. Though the informant has been arrayed as the respondent No. 2. In view of the settled law holding the field this Court is of the view that no notice is required to be issued to the respondent No. 2. In fact the time which would be consumed for such notice to be served immense prejudice would be suffered by the 2. The instant application has been field under Section 482 of the Cr.P.C. challenging a series of orders namely orders dated 30.09.2021 26.10.2021 and 11.11.2021 passed by the learned Court of Sessions Judge Barpeta in Sessions Case No. 129 2021. By the impugned order dated 26.10.2021 while framing charges against the petitioner he was again remanded to the judicial custody till 11.10.2021 on the same date the petition filed for releasing the petitioner on bail has been rejected. By the second order dated 26.10.2021 the prayer for bail has been rejected with the observation that the offence was grave and the evidentially material in the record and the quantum of punishment likely to be inflicted upon the accused if she is convicted do not justify the grant of bail. By the order dated 11.11.2021 the petition filed on behalf of the petitioner for allowing to submit the bail bond pursuant to the order of the learned CJM granting bail has been rejected on the ground that trial has already commenced and bail petition filed before that Court was rejected. 3. It is the case of the petitioner that in connection with Barpeta P.S. Case No. 413 2021 under Section 302 of the IPC the petitioner who was arrested had filed an application seeking bail. The said bail was considered on 28.05.2021 and coming to a conclusion that the Final Form was yet to be submitted and the mandatory period was over the petitioner was allowed to go on bail of Rs.10 000 with one surety of like amount It is the case of the petitioner that though default bail was granted to him he was not in a position to arrange the surety and other formalities and the same could be done only on 30.09.2021. However the learned CJM Barpeta had rejected the prayer by the aforesaid Page No.# 3 4 the present proceeding. 4. It is the legality and validity of the orders which is the subject matter of challenge in 5. Considering the settled law in subject this Court is of the opinion that the present petition is required to be disposed of at the motion stage itself as issuing notice would not serve any purpose and would rather be to the prejudice of the petitioner. 6. The law in this field is well settled by a number of Judgments by the Hon’ble Supreme Court as well as various High Courts. The provision of bail as laid down in Section 167 of the Cr.P.C. has been held to be a mandatory provision and has been termed as the “default bail” It has been settled that if the investigation is not over and the charge sheet is not able to be filed within the prescribed period depending on the nature of the offence the accused would be entitled to the privilege of default bail. In this connection the following case laws may be referred to: Maharashtra i. AIR 2001 Supreme Court 1910 : Uday Mohanlal Acharya Vs. State of ii. AIR Online 2020 SC 607: S. Kasi Vs. State 7. In the case of Uday Mohanlal Acharaythe Hon’ble Supreme Court has held that the right to be released on bail under Section 167Provisois indefeasible right and subsequent filing of charge sheet does not distinguish the right accrued by an accused to be released on bail. 8. In the case of S. Kasithe Hon’ble Supreme Court has reiterated the aforesaid position of law. In fact the Hon’ble Court has held that denial of bail on the ground that charge sheet could not be submitted within the prescribed period due to restrictions imposed during lockdown is clearly erroneous and not an accordance with law. 9. In the instant case it is seen that indeed the petitioner was granted default bail by the learned CJM Barpeta vide the order dated 28.05.2021. However due to the fact that the petitioner could not arrange the surety and other formalities he was not released from custody. However once the formality is fulfilled including the bail bond the learned Court was Page No.# 4 4 clearly in error holding that since the charge sheet has been filed in the meantime the provisions of default bail would not be applicable. The said finding is not on the erroneous but against the settled law laid down by the Hon’ble Supreme Court while interpreting the provisions of the Section 167of the Cr.P.C. as indicated above. 10. In view of the above the present application is allowed and the impugned orders dated 30.09.2021 26.10.2021 and 11.11.2021 are set aside. 11. Since it is seen that the petitioner had fulfilled the conditions imposed by the learned CJM Barpeta while granting default bail vide the order dated 28.05.2021 the petitioner be released forthwith by the learned Court by reconfirming the fulfillment of the conditions. It is needless to state that the petitioner shall continue to render full cooperation in the trial and or not indulge any activities detrimental to the same. JUDGE

In Case of minors, the guardian should be served with the order, notice or letter. : Andhra Pradesh High Court

Any notice or letter issued or any order passed may be served by delivering or tendering a copy of such notice, letter or order, as the case may be, to the person for whom it is intended or to any adult member of his family or by sending it by registered post acknowledgement due addressed to that person at his usual or last know place of residence or business. This was referred by Justice D.Ramesh of the Andhra Pradesh High Court in the matter of Punyamanthula Satyanarayana versus Union of India [WRIT PETITION NO.2521 OF 2019] This order was passed for the petition filed under Article 226 of the Indian Constitution, and it seeks the following remedies for all of the petitioners, who are small farmers who rely on their lands for a living. Some of the petitioners had previously lost their holdings in the acquisition of the Yeleru Canal and Polavaram Project and were surviving on the remaining land. Consequently, the 3rd respondent undertook a project known as the “Paradip-Hyderabad Pipeline Project” to lay a pipeline from Paradip in the state of Orissa to Hyderabad in the state of Telangana for the purpose of transportation of petroleum products. As a result, the 3rd respondent appointed the 2nd respondent as the appropriate authority under the Petroleum and Minerals Pipelines [Acquisition of Right of User in Land] Act, 1962 [for short “the P&MP Act”], to hear objections from the impacted landowners. Following that, on 27.04.2017, a notification was made in compliance with the aforementioned Act, and the 2nd respondent issued notices dated 02.06.2017 to only some of the petitioners, requesting objections. Some of the petitioners responded in writing to the notices, while the remaining proprietors met with the 2nd respondent in person to express their concerns. The petitioners claim that notices were only sent to the part of them and that some of the landowners were not notified at all. Despite the petitioners’ written concerns, the 2nd respondent ignored them and issued orders on November 30, 2017, stating that the compensation will be given to the land users. Though the 2nd respondent claims to have issued notices to landowners dated October 28, 2017, to appear before the Revenue Divisional Officer Peddapuram on November 10, 2017, the notices were not received by the land users, and as a result, the 2nd respondent made a decision without following natural justice principles. Respondent No. 2 has filed a counter, claiming that the Paradip-Hyderabad Pipeline is of national importance, that the laying of the pipeline in the East Godavari District is 90% complete, and that the entire project has been halted due to the interim order issued in the Writ Petition on February 27, 2019. It is also claimed that the Government of India, in the public interest, undertook the transportation of petroleum products from Paradip in the state of Odisha to Hyderabad in the state of Telangana via the Paradip-Hyderabad Pipeline Project, declaring its intention to acquire the right of use in the lands.

Punyamanthula Satyanarayana ... vs Union Of India on 7 January 2021 Andhra Pradesh High Court Amravati Punyamanthula Satyanarayana ... vs Union Of India on 7 January 2021 Bench: D Ramesh THE HONOURABLE SRI JUSTICE D.RAMESH WRIT PETITION NO.2521 OF 2019 This petition is filed under Article 226 of the Constitution of India seeking the following relief to issue a writ order or direction more particularly one in the nature of Mandamus declaring the P&MP Action of respondents not to interfere with the petitioners land admeasuring Ac.1 00 in Survey no.593 2 Ac.0 95 cents in Survey No.568 1 Ac.2 81 cents in Survey No.687 Ac.0 63 cents in Survey No.706 5 and 706 4 Ac.1 00 cents in Survey No.657 2 Ac.0 99 cents in Survey No.16 2 Ac.1 45 cents in Survey No.570 1 and 568 2 Ac.1 20 cents in Survey No.616 3 and 616 4 Ac.1 00 cents in Survey No.616 5 Ac.3 30 cents in Survey No.575 and 577 2 Ac.1 05 cents in Survey No.614 2 Ac.1 00 cents in Survey No.687 Ac.1 56 cents in Survey No.583 2 and 579 Ac.2 84 cents in Survey No.583 2 and 579 Ac.1 50 cents in Survey No.565 2A1 and 566 1A Ac.2 12 cents in Survey No.567 1 and 567 2 Ac.2 05 cents in Survey No.568 3B 568 4B 569 2B Ac.1 00 cents in Survey No.592 2 Ac.1 20 cents in Survey No.660 Ac.1 00 cents Survey No.575 and 577 2 Ac.1 00 cents in Survey No.659 1 Ac.1 00 in Survey No.688 Ac.1 00 in Survey No.629 2 and Ac.1 90 cents in Survey No.567 situated in Dharmavaram village Prathipadu Mandal East Godavari District without following due process of law and provisions of Petroleum and Mineral Pipelines) Acquisition of Rights of Users in Land) Act 1962 and the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act 2013 as illegal highhanded unconstitutional deliberate unwarranted unsustainable arbitrary against law as well as principles of natural justice and consequently direct the respondents to issue notices to the petitioners as contemplated under the Petroleum and Minerals PipelinesAct 1962 for hearing objections and to follow the provisions of the P&MP Act 2. Heard Sri K B Ramanna Dora learned counsel appearing for the petitioners Sri N.Harinath Assistant Solicitor General of India for respondent No.1 Sri G.Rama Gopal Standing Counsel appearing for respondents 2 and 3 and learned Government Pleader for Revenue appearing for respondents 4 and 5 3. As per the averments of the Writ Petition all the petitioners are small farmers and cultivating their lands for their livelihood. Earlier some of the petitioners lost their lands in acquisition of Yeleru Canal and Polavaram Project and sustaining their livelihood with the remaining land. While so the 3rd respondent for the purpose of laying pipeline for transportation of the petroleum products undertook a project named "Paradip Hyderabad Pipeline Project" laying pipeline from Indian Kanoon Punyamanthula Satyanarayana ... vs Union Of India on 7 January 2021 Paradip in the State of Orissa via State of Andhra Pradesh to Hyderabad in the State of Telagana Accordingly the 3rd respondent appointed 2nd respondent as the competent authority under the Petroleum and Minerals PipelinesAct 1962for the purpose of hearing objections from the affecting land owners. Subsequently a notification was issued on 27.04.2017 in accordance with the said Act and 2nd respondent issued notices dated 02.06.2017 only to some of the petitioners calling for objections. In response to the said notices some of the petitioners gave reply in writing and remaining owners met the 2nd respondent in person and conveyed their objections 4. The contention of the petitioners is that notices were issued only to some of them and still some of the land owners did not receive any notice. Though the petitioners raised objections in writing the 2nd respondent did not even consider those objections and issued orders dated 30.11.2017 conveying that the compensation will be paid to the land users. Though the 2nd respondent claims that they issued notices dated 28.10.2017 to the land owners to appear before the Revenue Divisional Officer Peddapuram on 10.11.2017 said notices were not received by the land users as such the 2nd respondent taken decision without following the principles of natural justice 5. The petitioners submits that in pursuant to the notification issued during the year 2017 notice was issued to only petitioner No.21 herein however all the petitioners submitted representation to the District Collector apart from specific objections in writing submitted by the petitioner No.21 in the month of October 2017. Further contention of the petitioners is that the Government recently acquired the land on the parallel line to be proposed pipe line for the purpose of digging Polvaram canal and if the said pipe line laid on the Bund adjacent to the said canal there would be no loss to any of the petitioners and also convenient for the respondents for which they made specific representation to go for alternative way for proposing pipe line through the Dharmavaram Village The respondents without taking any action with reference to the earlier notification nearly after lapse of two years now visited the fields of the petitioners and informed them that a notification was published in the Gazette of India on 03.03.2018 under section 3(2) of the P&MP Act 6. The main contention of the petitioners is that the petitioners left with small extent of land as they have already lost their lands during acquisition of Polavaram Project and Yeluru Project and the proposed pipe line is for the commercial purpose the respondents without following the procedure contemplated either in the Land acquisition Act 2013 or in the P&MP Act 1962 trying to encroach the petitioners lands. Hence the Writ Petition 7. At the time of admission this Court granted interim stay on 27.02.2019 8. It is apt to refer the following Sections and Rules of the P&MP Act for better appreciation of the case on hand SECTION 3: Publication of notification for acquisition. 1) Whenever it appears to the Central Government that it is necessary in the public interest that for the transport of petroleumfrom one locality to Indian Kanoon Punyamanthula Satyanarayana ... vs Union Of India on 7 January 2021 another locality pipelines may be laid by that Government or by any State Government or a corporation and that for the purpose of laying such pipelines it is necessary to acquire the right of user in any land under which such pipelines may be laid it may by notification in the Official Gazette declare its intention to acquire the right of user therein 2) Every notification under sub sectionshall give a brief description of the land 3) The competent authority shall cause the substance of the notification to be published at such places and in such manner as may be prescribed SECTION 5. Hearing of Objections. 1) Any person interested in the land may within twenty one days from the date of the notification under sub sectionof section 3 object to the laying of the pipelines under the land 2) Every objection under sub sectionshall be made to the competent authority in writing and shall set out the grounds thereof and the competent authority shall give the objector an opportunity of being heard either in person of by a legal practitioner and may after hearing all such objections and after making such further inquiry if any as that authority thinks necessary by order either allow or disallow the objections 3) Any order made by the competent authority under sub sectionshall be final SECTION 10: COMPENSATION. Where in the exercise of the powers conferred by section 4 section 7 or section 8 by any person any damage loss or injury is sustained by any person interested in the land under which the pipeline is proposed to be or is being or has been laid the Central Government the State Government or the corporation as the case may be shall be liable to pay compensation to such person for such damage loss or injury the amount of which shall be determined by the competent authority in the first instance 2) If the amount of compensation determined by the competent authority under sub sectionis not acceptable to either of the parties the amount of compensation shall on application by either of the parties to the District Judge within the limits of whose jurisdiction the land or any part thereof is situated be determined by that District Judge 6) The decision of the District Judge under sub sectionor sub sectionshall be final RULE 8: MODE OF SERVICE OF NOTICE 1) Any notice or letter issued or any order passed may be served by delivering or tendering a copy of such notice letter or order as the case may be to the person for whom it is intended or to any adult member of his family or by sending it by registered post acknowledgement due addressed to that Indian Kanoon person at his usual or last know place of residence or business Punyamanthula Satyanarayana ... vs Union Of India on 7 January 2021 2) Where the serving officer delivers or tenders the copy of the notice letter under sub rulehe shall require the signature of the person to whom the copy is to be delivered or tendered to an acknowledgment of service endorsed on the original.Where the person or the adult member if the family of such family refuses to sign the acknowledgment of where the serving officer after using all the due and reasonable diligence cannot find such person and there is no adult member of the family of such person the serving officer shall affix a copy of the notice letter or order on the outer door or some other conspicuous part of the ordinary residence or usual place of business of such person and then shall return the original to the competent authority who issued the notice letter or order as the case may be with a report endorsed thereon or annexed thereto stating that he has so affixed a copy the circumstances under which he did so and the name and address if the person if any by whom the usual or last known place of residence or business as the case may be was identified and in whose presence the copy was affixed 4) Where the person to be served with the notice letter or order is a minor or a person of unsound mind the notice letter or order shall be served in the aforesaid manner on the guardian of such minor or person of unsound as the case may be 9. Counter is filed on behalf of respondent No.2 contending that the subject matter pertaining to the Paradip Hyderabad Pipeline is having national importance laying of said pipeline in East Godavari District is completed up to 90% and in view of the interim order dated 27.02.2019 passed in the Writ Petition the entire work was stalled. It is further submitted that the Government of India in the interest of Public undertook transportation of petroleum products from Paradip in the State of Odisha via State of Andhra Pradesh to Hyderabad in the state of Telangana through pipe line project named "Paradip Hyderabad Pipeline Project" pursuant to the same a notification was issued in S.O.No.1071 "E" dated 18.04.2017 published in the Gazette of India under section 3(1) of the P&MP Act 1962 declaring its intention to acquire the right of use in the lands 10. The 2nd respondent being competent authority initiated the process of determining the compensation payable for the petitioners land for acquiring right of use and as per the procedure prescribed under section 3(1) of the P&MP Act 1962 issued notices calling for the objections upon which fifteen affected farmers filed their objections and petitioner No.21 herein is among one of them. Subsequently as per section 5(2) of the P&MP Act 1962 all the objections were heard on 10.11.2017 at RDO Office Peddapuram East Godavari District with due intimation to the objectors but the petitioner No.21 not turned up for hearing and the objection was disposed of on merits and orders were passed on 30.11.2017. Thereafter notification dated 11.04.2018 under section 6(1) of the P&MP Act 1962 was issued to the petitioners declaring their lands as being acquired for the right of use for the purpose of laying the pipeline. But the petitioners have refused to accept the notices issued under section 6(1) of the P&MP Act. Accordingly Panchanama was conducted in the lands of the petitioners in the presence of Village Revenue Officer concerned and an extent of Ac.20 89 centshas been proposed for acquisition under ROU in Dharamavaram Village of Prathipadu Mandal in East Godavari District. Thus the total affected farmers for the Scheduled land is 77 and out of them 33 farmers given consent for an extent of Ac.8 69 cents Indian Kanoon Punyamanthula Satyanarayana ... vs Union Of India on 7 January 2021 11. Finally it is submitted that 2nd respondent being competent authority after considering the objections submitted by the petitioner No.21 considered and passed order dated 30.11.2017 and said order is made under section 5(2) of the P&MP Act 1962 and attained finality under section 5(3) accordingly as per section 6(1) of the P&MP Act notification was issued on 11.04.2018 and published in the gazette of India. As per section 6(2) of the P&MP Act the Right of User in the land will absolutely in the Central Government free from all encumbrances. Subsequently award was passed determining the compensation payable to land owners on 20.02.2019. Thus all the proceedings under the provisions of the P&MP Act 1962 were concluded by following the due process of law and the petitioner filed the present Writ Petition on 26.02.2019 long after a year therefore prays to dismiss the Writ Petition 12. Further submitted that on earlier occasion the affected farmers in Dharamvaram Village approached this Court on the same issue vide W.P.No.26219 wherein this court passed order dated 01.03.2019 and prays to dispose this writ petition in terms of the said Writ Petition 13. Learned counsel appearing for the petitioners has vehemently contended that the authorities have violated all the provisions of the Act they have not considered the objections submitted by the petitioners more specifically of the petitioner No.21. In fact as per Rule 8 of the act any notice or letter issued or any order passed may be served by delivery of tendering a copy of such notice letter or order to the persons to whom it is intended and the serving officer shall require to get the signature of the person to whom the copy is so delivered 14. In view of the above rule the authorities have to show that the notice was served on the petitioners except an acknowledgement of the petitioner No.1 the other petitioners were not served. Hence there is violation of principles of natural justice and against the Rules prescribed under the Act more particularly Rule 8 of the Act 15. Apart from that they have also requested the authorities for change of alignment if the lands are acquired adjacent to the Canal it will reduce the costs of the Project as well as more beneficial to the respondents also. Without considering the objections raised by the petitioners the 2nd respondent authority has issued orders mechanically under section 6(1) of the Act on 30.11.2017 hence requested to set aside the entire notification and consequently direct the respondents to issue notices to the petitioners as contemplated under the P&MP Act 1962 16. Refuting to the contentions the standing counsel appearing on behalf of the 2nd respondent has mainly contended that the Writ petition itself is not maintainable because they have passed an award on 20.02.2019 but the Writ Petition is filed after the final award is passed i.e. on 26.02.2019 As per Section 10of the Act 1962 once the award is passed if any dispute with regard to the amount of compensation determined by the competent authority under section 10of the Act the parties has to approach the District Judge within the limits of whose jurisdiction the land or any part there on is situated. In the instant case after passing the final order award without questioning the final order the present Writ Petition is filed. Hence the same is liable to be Indian Kanoon Punyamanthula Satyanarayana ... vs Union Of India on 7 January 2021 17. The petitioners have filed the present Writ Petition with malafide intention to stall the entire project whereas they contend in one way that the notices were not served on them but in the affidavit they themselves have stated that they have submitted a representation to the District Collector to go for an alternative way for proposing pipe line through Dharmavaram Village. The said representation is made on 16.12.2017 after lapse of two years present Writ Petition is filed without questioning the orders under section 6(1) of the Act on 30.11.2017 or the final award they are not at all interested to purse the objections only to stall the proceedings after passing the final award they have filed the present Writ Petition with misconceived facts 18. To support the above contentions the learned counsel relied on the judgement P.CHINNANNA AND OTHERS VS. STATE OF A.P AND OTHERS1. Wherein the Honourable Apex Court held that In fact in relation to acquisition proceeding involving acquisition of land for public purposes the Court concerned must be averse to entertain Writ Petitions involving the challenge to such acquisition where there is avoidable delay or latches since such acquisition if set aside would not only involve enormous loss of public money but also cause undue delay in carrying out projects meant for general public good. When a fresh ground of attack to acquisition proceedings even if it involves purely a question of law its entertainment cannot be governed by a principle different from that which governs entertainment of writ petitions before the High Court of proceedings arising there from before this Court under Article 136 of the Constitution 19. In view of the ratio laid down by the Honourable Apex Court therein in my considered opinion when the acquisition is made from the general public at large the Court should restrain in entertaining the Writ Petition that too after completing the procedure contemplated under the P&MP Act 1962 and after passing final award whereas the petitioners have not approached this Court immediately after passing the orders under section 5 of the P&MP Act or after notification under section 6(1) of the Act.5 SCC 486 20. As seen from the record after lapse of two years they came to this Court that too without assailing any of the proceedings which itself clearly establishes that the intention of the petitioners is not for violation of the provisions of the Act only to stall the project 21. In view of the observation made by the Honourable Supreme Court in the above decision it is clear in relation to acquisition proceeding involving acquisition of land for public purposes the Court concerned must be averse to entertain Writ Petitions involving the challenge to such acquisition where there is avoidable delay or latches since such acquisition if set aside would not only involve enormous loss of public money but also cause undue delay in carrying out projects meant for general public good 22. In view of the above discussion the Writ Petition is devoid of merits accordingly the interim stay granted on 27.02.2019 is vacated. If the petitioners have any grievance against the award passed under section 10(1) of the P & MP Act 1962 they are at liberty to file application under section 10(2) of the P& MP Act 1962 before the concerned District Judge within whose jurisdiction the subject lands are situated on filing such application the District Judge shall consider the application and pass appropriate orders on merits Indian Kanoon Accordingly the Writ Petition is disposed of. There shall be no order costs Punyamanthula Satyanarayana ... vs Union Of India on 7 January 2021 JUSTICE D. RAMESH Date: 07.01.2020 Pnr THE HONOURABLE SRI JUSTICE D.RAMESH WRIT PETITION NO.2521 OF 2019 Date: 07 01 2021 Pnr Indian Kanoon

Unsuccessful litigants after having suffered a judgment cannot be allowed to raise the plea with regard to Section 12A of the Commercial Courts Act: Delhi High Court

If the petitioner/defendant tenant had bona fide intentions, the said request should have been made at the earliest before the Commercial Court and unsuccessful litigants after having suffered a judgment cannot be allowed to raise the plea with regard to Section 12A of the Commercial Courts Act as upheld by the High Court of Delhi through the learned bench led by Justice Amit Bansal in the case of Gurjinder Singh V. S. Gurbir Singh (CM(M) 966/2021). Brief facts of the case are that the suit premises were let out to the petitioner/defendant tenant for commercial purposes vide unregistered rent agreement dated 22nd January, 2018 for a period of five years at the monthly rent of Rs. 15,000/-, excluding electricity and water charges. The petitioner/defendant tenant paid the rent till January, 2019 and thereafter, stopped paying rent w.e.f. 1st February, 2019. As the petitioner/defendant tenant failed to clear the arrears, the tenancy was terminated by serving a one-months’ notice dated 24th October, 2019. Despite receipt of the said legal notice, the petitioner/defendant tenant failed to clear the arrears. Accordingly, the suit was filed by respondent/plaintiff landlord for possession, recovery of arrears of rent, mesne profits and for permanent injunction against the petitioner/defendant tenant. The said suit in question was filed as an ordinary suit and was converted into a commercial suit on 10th January, 2020. The petitioner/defendant tenant entered appearance before the Commercial Court on 4th February, 2020. In January 2021, an application under Order XIII-A of the CPC was also filed by respondent/plaintiff landlord for passing summary judgment against the petitioner/defendant tenant in respect of relief of possession. The said application has been allowed and the Commercial Court has passed a summary judgment for eviction on 1st April, 2021. Hence, the present petition. The Hon’ble Court held, “The only answer forthcoming from the counsel for the petitioner/defendant tenant was that it was on account of COVID-19 pandemic. It is clear from the above that the present has been filed belatedly, only after when the petitioner came across the ground with regard to the maintainability of suits on non-compliance with Section 12A of the Commercial Courts Act. Even till date no application with regard to Section 12A of Commercial Courts Act has been filed by the petitioner/defendant tenant before the Commercial Court. No grounds for interference with the impugned judgment are made out under Article 227 of the Constitution of India. Dismissed.”

CM(M) 966 2021 respondent plaintiff landlord under Order XIII A of the Code of Civil COMM.) No.574 2019 whereby filed by Judge Commercial Court 02 West District Tis Hazari Courts Delhi in CS impugns the order judgment dated 1st April 2021 passed by the District The present petition under Article 227 of the Constitution of India 38987 2021CM(M) 966 2021 CM No. 38986 2021 and CM No. The application is disposed of. Allowed subject to all just exceptions. CM No. 38988 2021AMIT BANSAL J.VIA VIDEO CONFERENCING] HON BLE MR. JUSTICE AMIT BANSAL S. GURBIR SINGH Through: None. Respondent Nayyar and Mr. Tushar Anand Through: Mr. Sachin Tandon Mr. Aseem Petitioner GURJINDER SINGH CM(M) 966 2021 Date of decision: 29th October 2021 IN THE HIGH COURT OF DELHI AT NEW DELHI Signed By:ARUNAKANWARSigning Date:31.10.202117:32:28Signature Not Verified CM(M) 966 2021 relief of possession. The said application has been allowed and the summary judgment against the petitioner defendant tenant in respect of of the CPC was also filed by respondent plaintiff landlord for passing on 4th February 2020. In January 2021 an application under Order XIII A petitioner defendant tenant entered appearance before the Commercial Court into a commercial suit on 10th January 2020. The tenant. The said suit in question was filed as an ordinary suit and was mesne profits and for permanent injunction against the petitioner defendant respondent plaintiff landlord for possession recovery of arrears of rent to clear the arrears. Accordingly the suit was filed by 2019. Despite receipt of the said legal notice the petitioner defendant tenant tenancy was terminated by serving a one month’s notice dated 24th October 2019. As the petitioner defendant tenant failed to clear the arrears the till January 2019 and thereafter stopped paying rent w.e.f. 1st February electricity and water charges. The petitioner defendant tenant paid the rent 2018 for a period of five years at the monthly rent of Rs. 15 000 excluding commercial purposes vide unregistered rent agreement dated 22nd January The suit premises were let out to the petitioner defendant tenant for impugned order. respondent plaintiff landlord within one month from the date of the said peaceful and vacant possession of said premises 110018 and the petitioner defendant tenant was directed to hand over premises no. K 86 Ground Floor Sham Nagar Khyala Road New Delhi has been passed against the petitioner defendant tenant in respect of Procedure 1908has been allowed a summary judgment for eviction Signed By:ARUNAKANWARSigning Date:31.10.202117:32:28Signature Not Verified CM(M) 966 2021 agreement. It is also stated that his client is also having tenancy in property and his client has repeatedly asked him to sign rent defendant wherein it is stated that his client is tenant of the plaintiff has also filed the legal notice sent by the counsel for the thereby admitted relationship of landlord and tenant. Further the facts. That the defendant is tenant since 17.07.2017. The defendant plaintiff has not come with clean hands and has concealed true valued as the plaintiff has not paid the proper court fee and the stated in the written statement are that the suit is not properly present application they are noticed. Brief facts of the case as although was not taken on record however for the purpose of “13. The defendant had filed the written statement twice impugned judgment is set out hereinbelow: Commercial Court while passing the impugned order. Paragraph 13 of the the defence set up by the petitioner defendant tenant was considered by the judgment that even though the written statement was not taken on record taken on record it is clear from the reading of paragraph 13 of the impugned As regards the ground in respect of the written statement not being Courts Act’) was instituted in the case before filing of the suit. Commercial Courts Act 2015 no order judgment primarily on the grounds that the written statement of the The counsel for the petitioner defendant tenant assails the impugned 2021. Hence the present petition. Commercial Court has passed a summary judgment for eviction on 1st April Signed By:ARUNAKANWARSigning Date:31.10.202117:32:28Signature Not Verified CM(M) 966 2021 application under Order VII Rule 11 of the CPC filed on behalf of the the written statement filed by the petitioner defendant tenant or in the that no such ground was ever taken by the petitioner defendant tenant in The counsel for the petitioner defendant tenant fairly concedes the petitioner defendant tenant. Commercial Courts Act was ever taken before the Commercial Court by whether the ground with regard to non compliance of Section 12A of the It was put to the counsel for the petitioner defendant tenant the CPC and passed the impugned summary judgment for eviction. filed on behalf of the respondent plaintiff landlord under Order XIII A of been served. Accordingly the Commercial Court allowed the application tenant has been sent by registered post the tenant is assumed to have came to the conclusion that once the notice at the correct address of the Durga Enterprises & Ors. 8 SCC 529 the Commercial Court Wazir Jaivir Chand AIR 1989 SC 630 and Indo Automobiles Vs. Jai Relying upon the judgments of the Supreme Court in Madan & Co. Vs. landlord on the petitioner defendant tenant for terminating the tenancy. basis and the notice had been duly served by the respondent plaintiff noted in the impugned order that the tenancy was on a month to month appearing on behalf of the petitioner defendant tenant. It has also been said fact has also been admitted before this Court by the counsel relationship of landlord and tenant has been admitted by the parties. The It has also been noted in the impugned judgment that the plaintiff and defendant is undisputed.” duly notarized on 23.01.2018. Thus the relationship between the the property by virtue of rent agreement dated 22.01.2018 which is Signed By:ARUNAKANWARSigning Date:31.10.202117:32:28Signature Not Verified CM(M) 966 2021 impugned judgment was passed. The only answer forthcoming from the the reasons for filing the present petition almost seven months after the It has been put to the counsel for the petitioner defendant tenant should have been made at the earliest before the Commercial Court. petitioner defendant tenant had bona fide intentions the said request plea with regard to Section 12A of the Commercial Courts Act. If the litigants after having suffered a judgment cannot be allowed to raise the already passed against the petitioner defendant tenant. Unsuccessful petition filed before this Court after the summary judgment has been Commercial Courts Act has been taken for the first time in the present It is obvious that the ground with regard to Section 12A of the pressed before the Commercial Court. been considered by the Commercial Court since this issue was never relief’ in terms of Section 12A of the Commercial Courts Act has not with his suit. However whether the same qualifies as an ‘urgent interim filed an application under Order XXXIX Rules 1 and 2 of the CPC along It may be noted here that the respondent plaintiff landlord had Commercial Courts Act. maintainability of the commercial suit in light of Section 12A of the been moved by the petitioner defendant tenant with regard to the by the counsel for the petitioner defendant tenant that no application has noted in any of the orders of the Commercial Court. It was also agreed perusal of the record shows that no reference to such a request has been request was made to the Commercial Court in relation to the same. A petitioner defendant tenant. It is further submitted that only an oral Signed By:ARUNAKANWARSigning Date:31.10.202117:32:28Signature Not Verified CM(M) 966 2021 Sakshi R. OCTOBER 29 2021 AMIT BANSAL J made out under Article 227 of the Constitution of India. 14. No grounds for interference with the impugned judgment are petitioner defendant tenant before the Commercial Court. Section 12A of Commercial Courts Act has been filed by the Commercial Courts Act. Even till date no application with regard to maintainability of suits on non compliance with Section 12A of the only after when the petitioner came across the ground with regard to the It is clear from the above that the present has been filed belatedly COVID 19 pandemic. counsel for the petitioner defendant tenant was that it was on account of Signed By:ARUNAKANWARSigning Date:31.10.202117:32:28Signature Not Verified

Quippo Construction Equipment Limited V/s Janardan Nirman Pvt. Limited

Thus, even stipulation in Section 10 that number of Arbitrators “shall not be an even number” was found to be a derogable provision and since no objections were raised to the composition of the Arbitral Tribunal, as provided in Section 16, the concerned respondents were deemed to have waived their right to object. Case name: Quippo Construction Equipment Limited V/S Janardan Nirman Pvt. Limited Case number: Civil Appeal NO.2378 OF 2020 Court: Supreme Court of India Bench: Hon’ble Justice Uday Umesh Lalit, Hon’ble Justice Vineet Saran Decided on: 29/4/ 2020 Relevant Statutes: Arbitration and Conciliation Act and Construction Industry Arbitration Association (CIAA) Rules and Regulations. BRIEF FACTS AND PROCEDURAL HISTORY The respondent company who is engaged in the business of infrastructure development activities approached the claimant company who is also dealing in the business of providing equipments for infrastructure activities to provide on rent two Piing Rig HR-180 and (1) 300 CPM compressor (equipments) for carrying out the work as per the respondent’s instructions.After deliberations and negotiations, an agreement dated 1.8.2010 was entered into between the parties in respect of the abovesaid construction equipments for its work site C/o Janardhan Nirman Pvt. Ltd. L & TECC site, NTPC BARH site, BARH, Distt. Patna, Bihar. Being satisfied with the equipment services provided by the claimant company, the respondent further approached the claimant company for taking on rent another one (1) Pilling Rig-MAIT HR 180 (equipment) for its same abovesaid work site, along with double set of crew/operator for each equipment for carrying out the works as per the respondent’s instructions.After deliberations and negotiations, an agreement 2.10.2010 was entered into between the parties herein in respect of the above said equipments. Thereafter, the respondent further entered into agreements dated 19.3.2011 and 14.4.2011 for taking on rent one (1) Pilling Rig HR 180 vide each of the said agreements for carrying out the work as per the respondent’s instructions for its work site at C/o Janardhan Nirman Pvt. Ltd., SAIL, DSP, Durgapur, West Bengal and C/o Janardhan Nirman Pvt. Ltd., NH-34, Farakka Dafkhola Road Project, Near Kaliachak, Distt. Malda, West Bengal, respectively.In pursuance agreements, construction equipments were provided by the appellant to the respondent at the respective sites as per instructions of the respondent. According to the terms and conditions of the agreements the respondent was to make payment within seven days from the date of submission of monthly bills failing which the respondent would be liable to pay interest for delayed period.Since the payments were not forthcoming, the appellant by its letter dated 21.01.2012 asked the respondent to pay the outstanding dues. In its response dated 01.02.2012 the respondent accepted that every Rig hired by it was as per the agreement. Since the payments were not forthcoming, by communication dated 02.03.2012 the appellant gave notice invoking arbitration. Relying on clauses 24 and 24.1, it was stated that Shri L.C. Jain, President Consumer Forum (Retd.) was appointed as the Sole Arbitrator who would be conducting proceedings at New Delhi to adjudicate upon the dispute between the parties.In its reply dated 15.03.2012 the respondent denied existence of any agreement between the parties. It, however, did not take any steps to participate in the arbitration.The respondent filed Title Suit No.189 of 2012 in the Court of Civil Judge, Junior Division, Second Court at Sealdah, praying that the agreements be declared null and void and for permanent injunction restraining the appellant from relying on the arbitration clauses contained in the agreements. At the interim stage, a restraint order was passed by the Trial Court as a result of which the proceedings before the Arbitrator were stayed.An application under Sections 5 and 8 of the Arbitration and Conciliation Act, 1996 (for short “the Act”) was filed by the appellant submitting that the dispute between the parties be referred to arbitration.The respondent filed Miscellaneous Appeal No.57 of 2014 in the Court of Additional District Judge, Second Court, Sealdah, challenging said order dated 26.05.2014. Pending appeal, interim relief was prayed for by the respondent and repeated adjournments on that count were sought by the respondent before the Arbitrator.The Arbitrator granted accommodation to the respondent on some occasions but as no interim order was passed by the appellate court, the proceedings before the Arbitrator continued. By ex-parte award dated 24.03.2015, the Arbitrator accepted the claim preferred by the appellant. The award was a common award covering claims in respect of all the four agreements.The respondent being aggrieved filed a petition under Section 34 of the Act before the High Court at Calcutta being AP No.1141 of 2015, which was dismissed by the High court on 17.07.2015 after observing that it was not clear from the cause title how the petition could have been filed in the High Court.Thereafter a petition under Section 34 of the Act was filed by the respondent being Miscellaneous Case No.298 of 2015 in the Court of District Judge, Alipore. The respondent reiterated its case about nonexistence of any agreement. It also stated, inter alia, that the venue of arbitration in terms of the agreement dated 14.04.2011 was at Kolkata. On 20.02.2016 the Appellate Court dismissed Miscellaneous Appeal No.57 of 2014 as not being maintainable.On 06.01.2007, OMP No. 449 of 2015 was rejected by the High Court of Delhi, inter alia, on the ground that no prime facie case was made out by the appellant. It was, however observed that the dismissal would not have any bearing on the decision that may be rendered in the pending petition under Section 34 of the Act before the Court at Alipore.Being aggrieved by the order dated 20.02.2016, the respondent filed Revision Petitions being CO Nos.1320 and 1322 of 2016 in the High Court at Calcutta, which by its order dated 28.03.2017 dismissed said Revision Petitions as not being maintainable but reserved rights of the respondent to agitate all the issues within the ambit of Section 34 of the Act, in the proceedings pending before the Court at Alipore. Special Leave Petition (Civil) Nos.25279-25280 of 2017 arising therefrom were dismissed by this Court on 06.10.2017.The respondent initially challenged the Order dated 13.08.2018 by filing Revision Petition (C.O. No.3400 of 2018) which was dismissed as not being maintainable by the High Court at Calcutta on the ground that a remedy of filing a petition under Section 37 of the Act was available.Accordingly, an appeal was filed in the Supreme Court. An application under Sections 5 and 8 of the Arbitration and Conciliation Act, 1996 (for short “the Act”) was filed by the appellant submitting that the dispute between the parties be referred to arbitration. ISSUES BEFORE THE COURT Whether the respondent could be said to have waived the right to raise any of the objections? RATIO OF THE COURT The court observed that though there were four agreements with arbitration seat at Kolkata and New Delhi, a common award was passed by the Arbitrator at New Delhi in respect of all four agreements.The Court referred the case of Narayan Prasad Lohia vs. Nikunj Kumar Lohia and others (2002) 3 SCC 572, and observed that while dealing with a case where instead of an odd number of Arbitrators, as is contemplated under Section 10 of the Act, the parties had agreed to arbitration of two Arbitrators and where objection in that behalf was not taken before the Arbitrators, a three Judge Bench of this Court considered the amplitude and applicability of Section 4 of the Act.The Court observed that the arbitration in question is a domestic and an institutional arbitration where CIAA was empowered to and did nominate the Arbitrator. It is not as if there were completely different mechanisms for appointment of Arbitrator in each of the agreements. The only distinction is that according to one of the agreements the venue was to be at Kolkata. The specification of “place of arbitration” may have special significance in an International Commercial Arbitration, where the “place of arbitration” may determine which curial law would apply. However, in the present case, the applicable substantive as well as curial law would be the same.The Court observed that it was possible for the respondent to raise submissions that arbitration pertaining to each of the agreements be considered and dealt with separately. It was also possible for him to contend that in respect of the agreement where the venue was agreed to be at Kolkata, the arbitration proceedings be conducted accordingly.The Court observed that considering the facts that the respondent failed to participate in the proceedings before the Arbitrator and did not raise any submission that the Arbitrator did not have jurisdiction or that he was exceeding the scope of his authority, the respondent must be deemed to have waived all such objections.The court observed that the specification of “place of arbitration” may have special significance in an International Commercial Arbitration, where the “place of arbitration” may determine which curial law would apply. However, in the present case, the applicable substantive as well as curial law would be the same.The Court observed that in the circumstances, the respondent is now precluded from raising any submission or objection as to the venue of arbitration, the conclusion drawn by the Court at Alipore while dismissing Miscellaneous Case No.298 of 2015 was quite correct and did not call for any interference. DECISION OF THE COURT The court held that the High Court was in error in setting aside said Order. In any case, the fact that the cause title showed that the present appellant was otherwise amenable to the jurisdiction of the Alipore Court, could not be the decisive or determining criteria.The Court allowed the appeal and set aside the Judgment and Order under appeal and restored the Order dated 13.08.2018 passed by the Court at Alipore in Miscellaneous Case No. 298 of 2015. No costs.

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.2378 OF 2020 Arising Out of Special Leave PetitionNo.110119 QUIPPO CONSTRUCTION EQUIPMENT LIMITED …Appellant JANARDAN NIRMAN PVT. LIMITED JUDGMENT Uday Umesh Lalit J Leave granted No.100918. In this appeal the Original Claimant challenges the final judgment and order dated 14.02.2019 passed by the High Court at Calcutta in CAN The basic facts culled out from the award dated 24.03.2015 passed by the Arbitrator in the present case are: “That the respondent company who is engaged in the business of infrastructure development activities approached the claimant company who is also dealing in the business of providing equipments for infrastructure activities to provide on rent two Piing Rig HR 180 and 300 CPM compressor equipments) for carrying out the work as per the respondent’s instructions. After deliberations and negotiations an agreement dated 1.8.2010 was entered into between the parties in respect of the abovesaid construction equipments for its work site C o Janardhan Nirman Pvt. Ltd. L & TECC site NTPC BARH site BARH Distt. Patna Bihar. Being satisfied with the equipment services provided by the claimant company the respondent further approached the claimant company for taking on rent another one 1) Pilling Rig MAIT HR 180 for its same abovesaid work site along with double set of crew operator for each equipment for carrying out the works as per the respondent’s instructions. After deliberations and negotiations an agreement 2.10.2010 was entered into between the parties herein in respect of the abovesaid equipments. Thereafter the respondent further entered into agreements dated 19.3.2011 and 14.4.2011 for taking on rent one between the parties the parties hereby agreed to refer such dispute to Arbitration under Construction Industry Arbitration Association Rules and Regulations save and except that on behalf of both the parties to the Agreement. The owners shall be entitled to select the sole Arbitrator out of the panel of CIAA The proceedings shall be governed by the Arbitration and Conciliation Act 1996 with any statutory modification thereto or re enactment thereof. The venue for holding such arbitration proceedings would be New Delhi.” “24. Governing Law Jurisdiction & Arbitration All and any dispute arising out of or in connection with this contract including any question regarding its existence validity or termination shall be referred to and finally resolved by arbitration in Kolkata in accordance with the arbitration Rules of the Construction Industry Arbitration Council for the time being in force at the commencement of the arbitration which rules are deemed to be incorporated by reference in this Clause The owner shall be entitled to select the sole Arbitrator out of the panel of CIAC. This agreement is governed by the laws of India and the parties hereto agree that only that courts and tribunals at Kolkata shall have the exclusive jurisdiction the dispute arise out of the terms of the Agreement or its interpretation The language of the arbitration shall be in English language. The provision shall survive the termination expiry of this agreement.” 5. In pursuance of the aforementioned agreements construction equipments were provided by the appellant to the respondent at the respective sites as per instructions of the respondent. According to the terms and conditions of the agreements the respondent was to make payment within seven days from the date of submission of monthly bills failing which the respondent would be liable to pay interest for delayed period. Since the payments were not forthcoming the appellant by its letter dated 21.01.2012 asked the respondent to pay the outstanding dues In its response dated 01.02.2012 the respondent accepted that every Rig hired by it was as per the agreement. Since the payments were not forthcoming by communication dated 02.03.2012 the appellant gave notice invoking arbitration. Relying on clauses 24 and 24.1 as stated above it was stated that Shri L.C. Jain President Consumer Forumwith interest @ 18%p.a. to the A copy of this communication was marked to Construction Industry Arbitration Councilwas filed by the appellant submitting that the dispute between the parties be referred to arbitration While accepting the application moved on behalf of the appellant the Trial Court in its Order dated 26.5.2014 observed: “The defendant has already stated that there are agreements between the parties containing arbitration clause. They referred the matter to arbitration in terms of the said arbitration clause to resolve payment related dispute. In support of their contention the defendant produced a series of original agreements signed by both parties. I fail to understand why the plaintiff signed in a series of documents which they claim to be non existing. As stated earlier the plaintiff failed to give any explanation regarding falsity and forgery committed by the defendant in executing the said agreements. On perusal of the agreements it transpires that all the agreements contain payment and usage terms in detail The agreements also contain arbitration clause i.e. with regard to any claim and any dispute regarding implementation execution and interpretation or breach of the agreements between the parties Therefore the dispute between the parties regarding payments is within the scope of arbitration clause. The defendants are justified in referring the matter to arbitration. Rather the plaintiff filed this suit even after having knowledge of arbitration proceeding All the disputes between the parties being the matters covered by arbitration clause are to be adjudicated by the arbitrator. Therefore this court has no jurisdiction to hear and try this suit.” The application preferred by the appellant was thus allowed and the plaint was directed to be returned. The respondent filed Miscellaneous Appeal No.514 in the Court of Additional District Judge Second Court Sealdah challenging said order dated 26.05.2014. Pending appeal interim relief was prayed for by the respondent and repeated adjournments on that count were sought by the respondent before the Arbitrator. The Arbitrator granted accommodation to the respondent on some occasions but as no interim order was passed by the appellate court the proceedings before the Arbitrator continued. By ex parte award dated 24.03.2015 the Arbitrator accepted the claim preferred by the appellant. The award was a common award covering claims in respect of all the four agreements. The award observed: “The claimant company approached the Construction Industry Arbitration Councilthe institutional body set up for this purpose for appointment of an arbitrator as per provisions of the agreement entered between the claimant company and respondents to resolve the dispute that arose in between the claimant company and the respondents. To resolve the dispute in between the parties the CIAC assigned this matter to me as sole arbitrator. Notice of reference sent by the claimant company is dated 02.03.2012 and thereafter the arbitrator was appointed and file was put up before the sole arbitrator who fixed the date for appearance of parties … … … The respondent was provided ample opportunities and time to settle the account but the respondent failed to settle the account and ultimately the claimant issued notice dated 02.03.2012 invoking the arbitration clause of the abovesaid agreements in order to settle the dispute with the respondent in accordance to the provisions of CIAC manual and requested to CIAC for referring the matter to arbitration and accordingly the matter has been referred to arbitration. CIAC issued notice dated 30.05.2012 to the respondents and asked for appearance and filing of reply written statement on 04.07.2012 … … … On receipt of the notice by the respondent the respondent wrote to CIAC that an appeal has been filed before the Ld. Additional District Judge at Sealdah Kolkata against the order of the Ld. Civil Judge and the matter may be adjourned and accordingly the matter was adjourned and intimation was sent to the respondents. The respondent was also informed that without obtaining a stay order from the court of Ld. Additional District Judge at Sealdah Kolkata the proceedings will not be adjourned but the respondents have not filed any stay order with CIAC in the arbitration proceedings in this matter. For not putting appearance or by not filing the reply written statement the respondent was proceeded ex parte and intimation of the same was sent to respondent by CIAC. In fact CIAC sent copy of all proceedings orders) of each date to the respondent but the respondent every time on receipt of intimation from CIAC continued to send the request for adjournment of the proceedings before the Sole Arbitrator through CIAC and has never filed any copy of the stay order if any passed by the Ld. Additional District Judge at Sealdah Kolkata nor filed any reply written statement or objections for consideration of the Sole … … … The respondent has taken the plea before the Ld. Civil Judge that the agreements as mentioned above have not been entered by him and all the documents are forged and fabricated and the Ld. Civil Judge in his order in the Civil Suit No.1812 has considered these pleas of the respondent and after due consideration of these pleas directed the respondent to join the arbitration proceedings. … … Thus the claimant is entitled to receive from the respondent an amount of : Rs.78 78 533 i.e. claim Interest @ 11% per annum on the amount of Rs.78 78 533 as pendente lite interest from 2.3.2012 i.e. from date of reference invoking arbitration till the date of award i.e. 24.03.2015 Interest @ 11% per annum from the date of award i.e. from 25.03.2015 till The claimant has deposited with CIAC the cost of arbitration i.e. arbitration fee and allied charges pertaining to the portion of respondent amounting to Rs.1 47 072 Rupees One Lac Forty Seven Thousand Seventy Two only) and the claimant is entitled to receive the same from the Claimant has been directed to deposit stamp paper worth Rs.12 000 with CIAC for pronouncing the award and the claimant accordingly filed the stamp paper worth Rs.12 000 with CIAC and the award has been pronounced. The award has been filed with Soon after the award OMP No. 449 of 2015 was filed by the appellant in the High Court of Delhi seeking relief under Section 9 of the Act post the passing of the award. 9. The respondent being aggrieved filed a petition under Section 34 of the Act before the High Court at Calcutta being AP No.1141 of 2015 which was dismissed by the High court on 17.07.2015 after observing that it was not clear from the cause title how the petition could have been filed in the High Court. Thereafter a petition under Section 34 of the Act was filed by the respondent being Miscellaneous Case No.298 of 2015 in the Court of District Judge Alipore. The respondent reiterated its case about non existence of any agreement. It also stated inter alia that the venue of arbitration in terms of the agreement dated 14.04.2011 was at Kolkata On 20.02.2016 the Appellate Court dismissed Miscellaneous Appeal No.514 as not being maintainable. On 06.01.2007 OMP No. 4415 was rejected by the High Court of Delhi inter alia on the ground that no prime facie case was made out by the appellant. It was however observed that the dismissal would not have any bearing on the decision that may be rendered in the pending petition under Section 34 of the Act before the Court at Alipore Being aggrieved by the order dated 20.02.2016 the respondent filed Revision Petitions being CO Nos.1320 and 13216 in the High Court at Calcutta which by its order dated 28.03.2017 dismissed said Revision Petitions as not being maintainable but reserved rights of the respondent to agitate all the issues within the ambit of Section 34 of the Act in the proceedings pending before the Court at Alipore. Special Leave Petition Nos.25279 25280 of 2017 arising therefrom were dismissed by this Court on 06.10.2017. The petition filed by the respondent under Section 34 of the Act viz. Miscellaneous Case No.2915 was thereafter dismissed by the Court at Alipore on 13.08.2018 with following observations: “After perusal of the case record I find that there was an arbitration clause in the agreement and the Arbitrator was appointed at New Delhi and the Ld Arbitrator has passed the award in favour of the opposite parties. The question of jurisdiction of Section 34 has been raised. There are several case laws as cited by the Ld. Lawyer for the opposite parties. From the said case laws it is found that the jurisdiction of Section 34 is where the arbitration award was passed or in the place where the seat of arbitration was agreed by the parties. In the recent case laws reported in 2017 SCC Online SC 4421 I find that the jurisdiction is exclusively in that place where the arbitration was done. Ld. Lawyer for the petitioner referred the agreement in between the parties stating that there is a Clause of arbitration at Kolkata but in reply the Ld. Lawyer for the opposite parties stated that there are several agreements and the place of arbitration is mentioned in other agreements is at Delhi and accordingly the arbitration has made at New Delhi and this Court has no jurisdiction to entertain of this Misc. Case U s 34 of the Act and only Courts at Delhi have the jurisdiction to entertain the Accordingly after careful scrutiny of the case record as well as the observation of the Hon’ble Apex Court I find that the arbitration award was passed at New Delhi and accordingly the Court of New Delhi has the jurisdiction to entertain the application u s 34 of the Arbitration and Conciliation Act. This Court has no jurisdiction. So the present case is bad for want of The respondent initially challenged the Order dated 13.08.2018 by filing Revision Petitionwhich was dismissed as not being maintainable by the High Court at Calcutta on the ground that a remedy of filing a petition under Section 37 of the Act was available. The respondent thereafter filed appropriate petition being CAN No.1009 Indus Mobile Distribution Pvt. Ltd. vs. Datavind Innovations Pvt. Ltd.: 7 SCC 678 2018 which was allowed by the High Court at Calcutta vide judgement dated 14.02.2019 with the following observations: “Accordingly since it is evident from the cause title itself that the respondent herein was otherwise amenable to the jurisdiction of the Alipore court the order impugned dated August 13 2018 is set aside and Misc. Case No.2915is restored to the board of the Additional District Judge 16th Court at Alipore.” Said Judgment of the High Court is presently under challenge 16. In the circumstances it is clear that: Though each of the four agreements provided for arbitration the award rendered by the Arbitrator was a common award In one of the agreements the venue was stated to be Kolkata and yet the proceedings were conducted at Delhi However at no stage the aforesaid objections were raised by the respondent before the Arbitrator and the respondent let the arbitral proceedings conclude and culminate in an ex parte award. Therefore the question that arises is whether the respondent could be said to have waived the right to raise any of the aforesaid objections. 17. We heard Mr. Ritin Rai learned Senior Advocate for the appellant and Mr. Kuriakose Varghese learned Advocate for the respondent. Mr. Ritin Rai learned Senior Advocate submitted that all the while the respondent was denying the existence of the agreements between the parties that after seeing the agreements in original the Civil Court had accepted the application preferred by the appellant under Sections 5 and 8 of the Act that the decision rendered by the Civil Court attained finality with the dismissal of Special Leave Petition by this Court that the respondent chose not to participate in the arbitration proceedings and that it was only at the stage of preferring petition under Section 34 of the Act that a submission was raised about the venue of arbitration. It was submitted that having chosen not to raise any objection on the issue of jurisdiction or competence of the Arbitrator to go ahead with the matter pertaining to issue covered by arbitration the respondent must be taken to have waived any such objection. It was submitted that in any case the Arbitrator was appointed through Construction Industry Arbitration Associationwhich was also the modality under the agreement dated 14.04.2011. In response it was submitted by Mr. Varghese learned Advocate that every arbitration agreement had to be considered independently and if an agreement specified the venue to be at Kolkata the party autonomy in that behalf ought to be respected. Reliance was placed on the decision of this Court in Duro Felguera S.A. vs. Gangavaram Port Limited2 where there were six arbitral agreements and each one of them was subject matter of independent reference to arbitration. Before we deal with the nature of controversy we may extract relevant provisions namely Sections 4 16 and 20 of the Act.: “4. Waiver of right to object. A party who knows a) Any provision of this Part from which the parties may derogate or b) Any requirement under the arbitration Has not been complied with and yet proceeds with the arbitration without stating his objection to such non compliance without undue delay or if a time limit is provided for stating that objection within that period of time shall be deemed to have waived his right to so object … … … 16. Competence of arbitral tribunal to rule on its jurisdiction. 1) The arbitral tribunal may rule on its own jurisdiction including ruling on any objections with respect to the existence or validity of the arbitration agreement and for that purpose An arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract 29 SCC 729 b) A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause 2) A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence however a party shall not be precluded from raising such a plea merely because that he has appointed or participated in the appointment of an arbitrator 3) A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings 4) The arbitral tribunal may in either of the cases referred to in sub sectionor sub sectionadmit a later plea if it considers the delay justified 5) The arbitral tribunal shall decide on a plea referred to in sub sectionor sub sectionand where the arbitral tribunal takes a decision rejecting the plea continue with the arbitral proceedings and make an arbitral award 6) A party aggrieved by such an arbitral award may make an application for setting aside such an arbitral award in accordance with section 34 … … … 20. Place of arbitration. The parties are free to agree on the place of arbitration 2) Failing any agreement referred to in sub section 1) the place of arbitration shall be determined by the arbitral tribunal having regard to the circumstances of the case including the convenience of the parties 3) Notwithstanding sub section or sub section 2) the arbitral tribunal may unless otherwise agreed by the parties meet at any place it considers appropriate for consultation among its members for hearing witnesses experts or the parties or for inspection of documents goods or other property.” 20. While dealing with a case where instead of an odd number of Arbitrators as is contemplated under Section 10 of the Act the parties had agreed to arbitration of two Arbitrators and where objection in that behalf was not taken before the Arbitrators a three Judge Bench of this Court in Narayan Prasad Lohia vs. Nikunj Kumar Lohia and others3 considered the amplitude and applicability of Section 4 of the Act. The relevant paragraphs of the decision are: “5. On 22 12 1997 the 1st respondent filed an application in the Calcutta High Court for setting aside the award dated 6 10 1996. On 17 1 1998 the 2nd respondent filed an application for setting aside this award. One of the grounds in both these applications was that the arbitration was by two arbitrators whereas under the Arbitration and Conciliation Act 1996 there cannot be an even number of arbitrators. It was contended that an arbitration by two arbitrators was against the statutory provision of the said Act and therefore void and invalid. It was contended that consequently the award was unenforceable and not binding on the parties. These contentions found favour with a Single Judge of the Calcutta High Court who set aside the award on 17 11 1998. On 18 5 2000 the appeal was also dismissed. Hence this appeal to this Court … … … 8. Mr Venugopal submits that Section 10 of the said Act is a mandatory provision which cannot be derogated. He points out that even though the parties are free to determine the number of arbitrators such number cannot be an even number. He submits that any agreement which permits the parties to appoint an even number of arbitrators would be contrary to this 33 SCC 572 mandatory provision of the said Act. He submits that such an agreement would be invalid and void as the Arbitral Tribunal would not have been validly constituted. He submits that composition of the Arbitral Tribunal itself being invalid the proceedings and the award even if one be passed would be invalid and unenforceable 9. Mr Venugopal submits that Section 4 of the said Act would only apply provided a) a party knew that he could derogate from any provision of this part or b) a party knew that any requirement under the arbitration agreement had not been complied with and the party still proceeded with the arbitration. He submits that this case does not fall under categorywould not apply because waiver can only be in respect of a matter from which a party could derogate. He submits that in respect of provisions which are non derogable there can be no waiver. He submits that Section 10 is a provision from which a party cannot derogate. He submits that matters from which a party cannot derogate are those provided in Sections 4 8 9 10 11(4) and12 13(4) 16(2) and22(4) 27 31 32 33 34(2) and35 36 37 38(1) and 43(3 He submits that as against this matters from which a party can derogate are those provided under Sections 11(2) 19(1) and20(1) and22(1) 24 25 26 … … … 14. We have heard the parties at length. We have considered the submissions. Undoubtedly Section 10 provides that the number of arbitrators shall not be an even number. The question still remains whether Section 10 is a non derogable provision. In our view the answer to this question would depend on the question as to whether under the said Act a party has a right to object to the composition of the Arbitral Tribunal if such composition is not in accordance with the said Act and if so at what stage. It must be remembered that arbitration is a creature of an agreement. There can be no arbitration unless there is an arbitration agreement in writing between the … … … 16. It has been held by a Constitution Bench of this Court in the case of Konkan Rly. Corpn. Ltd. v. Rani Construction Ltd.4 that Section 16 enables the Arbitral Tribunal to rule on its own jurisdiction. It has been held that under Section 16 the Arbitral Tribunal can rule on any objection with respect to existence or validity of the arbitration agreement. It is held that the Arbitral Tribunal’s authority under Section 16 is not confined to the width of its jurisdiction but goes also to the root of its jurisdiction. Not only this decision is binding on this Court but we are in respectful agreement with the same. Thus it is no longer open to contend that under Section 16 a party cannot challenge the composition of the Arbitral Tribunal before the Arbitral Tribunal itself. Such a challenge must be taken under Section 16(2) not later than the submission of the statement of defence. Section 16(2 makes it clear that such a challenge can be taken even though the party may have participated in the appointment of the arbitrator and or may have himself appointed the arbitrator. Needless to state a party would be free if it so chooses not to raise such a challenge. Thus a conjoint reading of Sections 10 and 16 shows that an objection to the composition of the Arbitral Tribunal is a matter which is derogable. It is derogable because a party is free not to object within the time prescribed in Section 16(2). If a party chooses not to so object there will be a deemed waiver under Section 4. Thus we are unable to accept the submission that Section 10 is a non derogable provision. In our view Section 10 has to be read along with Section 16 and is therefore a derogable … … … 20. Respondents 1 and 2 not having raised any objection to the composition of the Arbitral Tribunal as provided in Section 16 they must be deemed to have waived their right to object.” 42 SCC 388 Thus even stipulation in Section 10 that number of Arbitrators “shall not be an even number” was found to be a derogable provision and since no objections were raised to the composition of the Arbitral Tribunal as provided in Section 16 the concerned respondents were deemed to have waived their right to object In Duro Felguera2 the submission that for convenience of either side the original contract was split into five different contracts and as such there ought to be a composite reference to arbitration covering all the contracts was not accepted by this Court. It was found by this Court: “42. … … The case in hand stands entirely on different footing. As discussed earlier all five different packages as well as the Corporate Guarantee have separate arbitration clauses and they do not depend on the terms and conditions of the Original Package No. 4 TR nor on the MoU which is intended to have clarity in execution of the work.” Incidentally it was a case of International Commercial Arbitration and in each of those agreements the seat of Arbitration was at Hyderabad Moreover the matter had arisen from an arbitration petition preferred under Section 11(6) of the Act In the present case the arbitration in question is a domestic and an institutional arbitration where CIAA was empowered to and did nominate the Arbitrator. It is not as if there were completely different mechanisms for appointment of Arbitrator in each of the agreements. The only distinction is that according to one of the agreements the venue was to be at Kolkata. The specification of “place of arbitration” may have special significance in an International Commercial Arbitration where the “place of arbitration” may determine which curial law would apply. However in the present case the applicable substantive as well as curial law would be the same. It was possible for the respondent to raise submissions that arbitration pertaining to each of the agreements be considered and dealt with separately. It was also possible for him to contend that in respect of the agreement where the venue was agreed to be at Kolkata the arbitration proceedings be conducted accordingly. Considering the facts that the respondent failed to participate in the proceedings before the Arbitrator and did not raise any submission that the Arbitrator did not have jurisdiction or that he was exceeding the scope of his authority the respondent must be deemed to have waived all such objections. In the circumstances the respondent is now precluded from raising any submission or objection as to the venue of arbitration the conclusion drawn by the Court at Alipore while dismissing Miscellaneous Case No.298 of 2015 was quite correct and did not call for any interference. The High Court in our view was in error in setting aside said Order. In any case the fact that the cause title showed that the present appellant was otherwise amenable to the jurisdiction of the Alipore Court could not be the decisive or determining criteria 25. We therefore allow this appeal set aside the Judgment and Order under appeal and restore the Order dated 13.08.2018 passed by the Court at Alipore in Miscellaneous Case No. 2915. No costs Uday Umesh Lalit (Vineet Saran New Delhi April 29 2020

Section of 482 Cr.P.C. could be invoked where allegations made and evidence collected in support do not disclose commission of an offence: High Court of Delhi

The exercise of the inherent powers under Section 482 Cr.P.C., to prevent abuse of the process of Court or otherwise to secure the ends of justice could be invoked to bring an end to the criminal prosecution in cases where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. These were stated by High Court of Delhi, consisting Justice Manoj Kumar Ohri in the case of T. Harish Kumar vs. State of NCT Delhi [CRL.M.C. 3467/2019] on 12.01.2022. The facts of the case are that petitioner, alongwith his wife was the joint owner of flat property. The petitioner and his wife had rented out the flat to Leela Ambience Delhi Convention Hotel acting through its Authorized Signatory Ms. Parul Jain, for a period of 36 months initially. The flat was rented out for Residential purpose, i.e. for accommodation of lady staff members of the Hotel exclusively, and for no other purpose. Subsequent to execution of the aforesaid Rent Deed, the Hotel had provided a list of 8 persons to the petitioner who were their employees and were to occupy the flat. Alongwith the list, duly filled tenant verification forms of those persons were also handed over and police verification was done. Thereafter, a complaint was filed on behalf of the residents occupying other floors of the property that the occupants of the flat used to come late in the night and were a source of disturbance and security concerns. On becoming aware of the concerns, the petitioner immediately sent a notice to the Hotel seeking to terminate the tenancy and asking that peaceful possession of the flat be handed over back to him and his wife. In pursuance of the aforesaid notice, the vacant possession of the flat was handed over by the Hotel to the petitioner. In between however, on 16.07.2018, the present FIR came to be registered on the complaint of Head Constable Kapil Kumar alleging that during spot inspection, two ladies namely Bhadri Maya Gurang and Rinchen Lhamo were found to be tenants of the flat, in respect of whom no police verification had been carried out. The Counsel for the petitioner submitted that the flat was rented out to the Hotel for the purpose of accommodation of its lady staff. He further submits that in pursuance of the rent agreement, a list of 8 persons, along with their tenant verification forms was forwarded by the Hotel to the petitioner. The documents were duly submitted to the concerned Police Station for verification. He also submitted that as per the information disclosed by the occupants of the flat, only the 8 persons named in the letter were residing in the flat. On becoming aware of the issues faced by the other residents of the property/building, the petitioner immediately terminated the tenancy and sought vacant possession of the flat which was delivered on 10.08.2018. He further submitted that the petitioner had also given copies of the Rent Deed, the tenant verification forms as well as the notice dated 09.07.2018 to the concerned SHO. Lastly, it was submitted that neither were the aforesaid two ladies tenants of the petitioner, nor did Constable Sanjeev Kumar and/or Head Constable Kapil Kumar meet him on 16.07.2018 at 7:30 p.m. as alleged. The Counsel for the respondent, on the other hand, opposed the petition. He submitted that the petitioner had rented out the flat without getting requisite police verification done, and thus, had violated the order No.7308-7407/R-ACP/Vivek Vihar Delhi dated 11.12.2017.

IN THE HIGH COURT OF DELHI AT NEW DELHI IN THE MATTER OF: T. HARISH KUMAR STATE NCT OF DELHI CRL.M.C. 3467 2019 Date of Decision: 12.01.2022 Petitioner Through: Mr. Kailash Vasudev Sr. Advocate with Mr. Navneet Dugar Advocate Through: Mr. Hirein Sharma APP for State with SI Harshvardhan PS Vivek Vihar ..... Respondent HON BLE MR. JUSTICE MANOJ KUMAR OHRI VIA VIDEO CONFERENCING) MANOJ KUMAR OHRI J.By way of the present petition filed under Section 482 Cr.P.C. the petitioner has sought quashing of FIR No.349 2018 registered under Section 188 IPC at Police Station Vivek Vihar Delhi arising out of Complaint Case No.1256 2019 and consequential proceedings including the charge sheet and the order dated 20.03.2019 passed by the learned CMM Shahdara District Karkardooma Courts Delhi vide which cognizance of the offence was taken. Brief facts as mentioned in the petition are: The petitioner alongwith his wife is the joint owner of flat property bearing No. A 40 Vivek Vihar Phase II 2nd Floor Delhi 110095 hereinafter referred to as „the flat‟). ii) Vide registered Rent Deed dated 03.05.2018 the petitioner and his wife had rented out the flat to Leela Ambience Delhi Convention Hotel hereinafter referred to as „the Hotel‟) acting through its Authorized Signature Not Verified Digitally Signed By:SANGEETA ANAND Signing Date:15.01.2022 Page 1 of 6 Signatory Ms. Parul Jain for a period of 36 months initially. The flat was rented out for Residential purpose i.e. for accommodation of lady staff members of the Hotel exclusively and for no other purpose. Subsequent to execution of the aforesaid Rent Deed the Hotel vide letter dated 25.06.2018 had provided a list of 8 persons to the petitioner who were their employees and were to occupy the flat. Alongwith the list duly filled tenant verification forms of those persons were also handed over. On execution of the Rent Deed the petitioner forwarded the aforesaid forms to the concerned Police Station which were duly received therein on 29.06.2018 and 02.07.2018. iv) On 05.07.2018 a complaint came to be filed on behalf of the residents occupying other floors of the property bearing No. A 40 Vivek Vihar Phase II Delhi 110095 to the effect that the occupants of the flat used to come late in the night and were a source of disturbance and security concerns to the complainants as main entrance doors of the property would sometimes be left open in late night. On becoming aware of the concerns shown by the other occupants of the property building the petitioner immediately sent a notice to the Hotel on 09.07.2018 seeking to terminate the tenancy and asking that peaceful possession of the flat be handed over back to him and his wife. In pursuance of the aforesaid notice the vacant possession of the flat was handed over by the Hotel to the petitioner on 10.08.2018. In between however on 16.07.2018 the present FIR came to be registered on the complaint of Head Constable Kapil Kumar alleging that during spot inspection two ladies namely Bhadri Maya Gurang and Rinchen Lhamo were found to be tenants of the flat in respect of whom no police verification had been carried out in terms of the order No.7308 7407 R ACP Vivek Vihar Delhi dated 11.12.2017. Signature Not Verified Digitally Signed By:SANGEETA ANAND Signing Date:15.01.2022 Page 2 of 6 3. Mr. Kailash Vasudev learned Senior Counsel appearing for the petitioner while referring to the contents of the Rent Deed submits that the flat was rented out to the Hotel for the purpose of accommodation of its lady staff. He further submits that in pursuance of the rent agreement a list of 8 persons alongwith their tenant verification forms was forwarded by the Hotel to the petitioner which documents were duly submitted to the concerned Police Station for verification on 29.06.2018 and 02.07.2018. He also submits that as per the information disclosed by the occupants of the flat only the 8 persons named in the letter dated 25.06.2018 of the Hotel were residing in the flat. Learned Senior Counsel has submitted that on becoming aware of the issues faced by the other residents of the property building the petitioner vide notice dated 09.07.2018 immediately terminated the tenancy and sought vacant possession of the flat which was delivered on 10.08.2018. He further submitted that on 16.07.2018 the petitioner had also given copies of the Rent Deed the tenant verification forms as well as the notice dated 09.07.2018 to the concerned SHO. Lastly it is submitted that neither were the aforesaid two ladies tenants of the petitioner nor did Constable Sanjeev Kumar and or Head Constable Kapil Kumar meet him on 16.07.2018 at 7:30 p.m. as alleged. Learned APP for the State on the other hand has opposed the petition. He submitted that the petitioner had rented out the flat without getting requisite police verification done and thus had violated the order No.7308 7407 R ACP Vivek Vihar Delhi dated 11.12.2017. I have heard learned counsels for the parties and have also gone through the Trial Court Record which was requisitioned on the previous A plain reading of the FIR in question would show that the same was registered in furtherance of Head Constable Kapil Kumar‟s visit to the flat Page 3 of 6 Signature Not Verified Digitally Signed By:SANGEETA ANAND Signing Date:15.01.2022 on 16.07.2018 at about 7:30 p.m. It was stated in the FIR that the Head Constable alongwith Constable Sanjeev Kumar had met the petitioner who stated that two ladies namely Bhadri Maya Gurang and Rinchen Lhamo were his tenants in respect of whom necessary police verification had not been carried out. It was also mentioned that the petitioner himself resided at property bearing No. 89 Kiran Vihar 3rd Floor Delhi 110092 and that he was aware of the order dated 11.12.2017 but could not get the verification done out of greed thereby violating the said order. On the basis of the aforesaid the FIR was registered on 16.07.2018 and the charge sheet came to be forwarded two days later i.e. on 18.07.2018 without carrying out any further investigation. Insofar as the submission of the learned Senior Counsel is concerned that in terms of the Rent Deed it was the responsibility of the Hotel to provide to the petitioner a list of the occupants alongwith their duly filled tenant verification forms it is noted that vide letter dated 25.06.2018 a list of 8 persons occupants alongwith their tenant verification forms was sent by the Hotel to the petitioner. It is an admitted case that the aforesaid 8 tenant verification forms were duly sent by the petitioner for verification to the concerned police station on 29.06.2018 and 02.07.2018. Further in the FIR and the statement of Constable Sanjeev Kumar recorded under Section 161 Cr.P.C. there is not a whisper as to whether any verification was conducted with respect to those 8 tenant verification forms. The FIR is also silent as to on what basis the complainant Head Constable Kapil Kumar came to the conclusion that the two ladies namely Bhadri Maya Gurang and Rinchen Lhamo were tenants at the flat whose tenant verification was not done in terms of the order dated 11.12.2017. Admittedly the complainant had visited the flat on 16.07.2018 for the first time but he neither collected any material to show that the Signature Not Verified Digitally Signed By:SANGEETA ANAND Signing Date:15.01.2022 Page 4 of 6 aforesaid two ladies were tenants of the petitioner nor recorded statements of any other occupant to the effect. On the contrary the complainant stated in the FIR that on account of his greed for rent the petitioner had not gotten the police verification done with respect to the aforesaid two ladies. 10. A reading of the Rent Deed would show that the monthly rent in respect of the flat was fixed and it was upto the Hotel to place its lady staff members in the flat as occupants. In fact the petitioner was not even a resident of the property building of which the flat is a part. 11. Further there is no document relating to the aforesaid two ladies on the record in the form of any ID card residential proof to show that they were tenants at the flat. Neither the statements of the aforesaid two ladies nor the statement of any other occupant of the building or the security guard was recorded. Mere presence of the aforesaid ladies in the flat even if proved by no stretch of imagination can form the basis to establish that they were tenants. Suffice it to say the charge sheet in the present case came to be filed hurriedly within two days of the registration of the FIR without proper investigation. 12. Based on the foregoing this Court is of the view that there is no material on record to support the allegation that the two ladies namely Bhadri Maya Gurang and Rinchen Lhamo were tenants at the flat whose police verification was not done in terms of the aforementioned order. 13. The Supreme Court in State of Haryana and Others v. Bhajan Lal and Others reported as 1992 Supp SCC 335 while summarizing the principles of law governing the exercise of the inherent powers under Section 482 Cr.P.C. to prevent abuse of the process of Court or otherwise to secure the ends of justice has held that such power could be invoked to bring an end the criminal prosecution in cases where “the uncontroverted allegations made in the FIR or complaint and the evidence Signature Not Verified Digitally Signed By:SANGEETA ANAND Signing Date:15.01.2022 Page 5 of 6 collected in support of the same do not disclose the commission of any offence and make out a case against the accused”. 14. Keeping in view the facts and circumstances of the case and the exposition of law outlined hereinabove this Court is of the considered opinion that the ingredients of the offence alleged are not made out against the petitioner. Consequently the petition is allowed and the FIR and all other consequential proceedings are quashed. 15. With the above directions the petition is disposed of. 16. A copy of this order be communicated to the concerned Trial Court. JANUARY 12 2022 MANOJ KUMAR OHRI) JUDGE Signature Not Verified Digitally Signed By:SANGEETA ANAND Signing Date:15.01.2022 Page 6 of 6

Duration of the closure not decisive in determining whether it is Bonafide: Bombay High Court

The court must keep in view all the relevant circumstances at the time of closure in order to determine whether the closure is bonafide or if it was done to terminate the services of workmen. The duration of the closure and restart date of the undertaking doesn’t determine the bonafide nature. The judgment was passed by the Bombay High Court in the case of Meltron Engineering Industries vs. Pune Labour Union & Anr. [WP/6940/2003] by Single Bench consisting of Hon’ble Shri Justice S.C. Gupte. The writ petition was filed by the petitioner to challenge the award passed by the Labour Court at Pune under Section 12(5) of the Industrial disputes act, 1947. The facts of the case are that the respondent’s labour union demanded reinstatement and continuity of services and full back wages to the ten workmen represented under it. The petitioner opposed the same since after the close down and with negotiations with the union, closure compensation was paid to all of them. The labour court did not accept the argument that the workmen no longer fell under section 2(s) of the Act. The same was held because the petitioner failed to support the same with documents and witnesses. The labour court held that the workmen had the right to reemployment under section 25H of the Act as the undertaking of the petitioners had reopened. Since the petitioner failed to produce any document in support of a bonafide closed down of its undertaking, the labour court held the same was only valid up to the date of restarting of the factory by the petitioners. The Hon’ble High Court of Bombay interpreted section 25H of the Act to be one that provides a preference for re-trenched workmen who offer themselves for re-employment over other persons. It stated that the Labour Court confused the retrenchment of workmen with closure. As per the facts only these 10 workmen were not called after the undertaking reopened after the Close down. The statement of the secretary of the respondent’s union depicts the same. It was held by the Hon’ble Bombay High Court that there stands no case of treating the cessation of employment of workmen due to closure as retrenchment and enjoy the benefit under section 25H of the Act. Furthermore, the Labour Court had also misdirected itself to understand the closure as not a bonafide one. The Labour Court invoked section 25H of the Act and referred to the closure as retrenchment. It was not the case of the respondent’s union as to whether the closure was bonafide. It was held by the High Court that the workmen absolved their right to re-employment after the closure when they had accepted the closure compensation from the petitioner and the closure had been duly affected. The Court relied on the case of General Labour Union (Red Flag), Bombay vs. B.V. Chavan [1985 AIR SC page 297] to reiterate that the test that should be conducted is “whether the closure was a device of pretence to terminate the services of workmen or whether it was bonafide and for reasons beyond the control of the employer at the time of closure.”

on 04 05 2021 on 22 03 sg wp6940 03.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6940 OF 2003 Meltron Engineering Industries...Petitioner vsPune Labour Union & Anr....Respondents..…Mr. Jay Vora i b. Mr. Piyush Shah for the Petitioner. CORAM : S.C. GUPTE J. DATED: 3 MAY 2021(JUDGEMENT) :.This petition challenges an award passed by the LabourCourt at Pune in a reference made to it under Section 12(5) of theIndustrial Disputes Act 1947demand for reinstatement with continuity of service andfull back wages to ten workmen represented by it. The Petitioner whowas the first party to the reference opposed it. Its case before thereference court was that the unit was closed down and in accordancewith negotiations with the representative union closure compensationwas paid to all workmen. The reference court did not accept the case ofthe first party that all ten employees having entered into an agreementthrough their representative unionwith thefirst party for accepting such payment vide receipts dated 9 August 1997 Pg on 04 05 2021 on 22 03 sg wp6940 03.docwhich were on record gave up their right to reinstatement or re employment and that they were no longer workmen within the meaningof Section 2(s) of the Act having given up their lien over employment.The court noted that in the first place the first party had not producedany agreement entered into by these ten employees through MaharashtraLabour Union with the first party the first party had also not led any oralevidence to prove this fact. Though the first party produced purportedreceiptsthe employees’ denial of suchpayment was supported by certified true copies of cheques which hadbeen brought on record by the Manager of Oriental Bank Ltd. The courtheld that the first party accordingly had not proved that the workmenhad been paid ex gratia amounts for overriding their rights ofreinstatement or re employment. The court further observed that evenassuming that the employees had accepted ex gratia payments as perthe alleged receipts such acceptance could not deny the benefit of law tothese workmen. The court observed that the parties could not enter intoany agreement contrary to the provisions of law. The court observedthat the employees had the right of re employment under Section 25 Hof the Act when the unit was restarted by the first party. On the questionas to whether the first party had restarted its unit and whether by not re employing these workmen it had violated the provisions of Section 25 H of the Act the court held that in the first place the first party had notshown that it had bonafide closed down its business or undertaking. Thecourt observed that even if there were to be a legally admissible closure it was valid upto the date of restarting of the factory by the first party.The court observed that the first party had started its factory includingmanufacturing activity on 1 November 1997. The court noted that after Pg on 04 05 2021 on 22 03 sg wp6940 03.docrestarting of the factory the first party was duty bound to give notice tothese employees to provide an opportunity for re employment.Inasmuch as it had deprived the employees of such opportunity byrecruiting other workmen for manufacturing activities the aggrievedemployees deserved to be granted benefits under Section 25 H of theAct. The court found that the first party had not complied with theprovisions of Section 25 H and accordingly the ten employees represented by the second party were entitled to reinstatement withcontinuity of service and full back wages from the date of restarting ofthe factory by the first party.3.If one has regard to the statement of claim filed by thesecond party union in coming to its conclusion as above the LabourCourt has clearly misdirected itself and the proceedings. Section 25 Htalks of re employment of retrenched workmen. It provides for aneventuality where workmen are retrenched and the employer proposes totake into his employment persons other than the retrenched workmen.The section requires the employer to give an opportunity to theretrenched workmen in such manner as may be prescribed to offerthemselves for re employment. It provides that such retrenchedworkmen who offer themselves for re employment would havepreference over other persons. The Labour Court appears to haveconfused here retrenchment of workmen with closure. The case here ofthe second party union was that from 8 August 1997 the first party hadclosed its factory and the workers were terminated after payment oftheir dues. It was submitted that with effect from 1 November 1997 thework was again restarted but these ten workmen were not called. The Pg on 04 05 2021 on 22 03 sg wp6940 03.docsecretary of the second party union who deposed on behalf of theseworkmen accepted in his examination in chief that on 6 August 1997 the first party closed its business with effect from 9 August 1997 andpaid legal dues of all workmen. He deposed that so far as the tenworkmen were concerned though receipts produced by the first partyshowed that amounts were paid by cheques no such cheques were givento them. Since the union’s case was that the unit had closed and legaldues were paid to workmen save and except the ten workmen on whosebehalf the reference was made the most that it could have asked forthese ten workmen was closure compensation payable in accordancewith law to these workmen. There was no case for treating the cessationof the employments of these ten workmen as a result of the closure asretrenchment so as to entitle the concerned workmen to the benefit ofSection 25 H of the Act.4.In fact if one has regard to the narration in the impugnedaward of how the dispute was referred to the Labour Court the claim ofthe second party workmen in the demand notice clearly implied that thework in the factory was stopped with effect from 8 August 1997 and thelegal dues were given to them. It was the workmen’s case that thefactory was restarted on 1 November 1997 but the old employees werenot called. Even the statement of claim of the second party unionaverred that the factory was closed and the workmen were paid full andfinal settlement amount. Even in the present petition the secretary of theoriginal representative union which arrived at the settlement with thefirst party employer has filed an affidavit affirming declaration ofclosure of the factory through a closure notice and payment of all legal Pg on 04 05 2021 on 22 03 sg wp6940 03.docdues to the workmen arising out of that closure. There is thus no caseof non payment of compensation to the workmen on whose behalf thepresent dispute has been raised.5.The Labour Court has accordingly misdirected itself. Itwrongly invoked Section 25 H of the Act treating the cessation of theemployment of the concerned workman upon closure of the unit asretrenchment. As for the closure itself the Labour Court noted that sincethe Petitioner had restarted manufacturing activity at the factory theclosure was not bonafide. As noted above it is not the union’s case thatthe closure was not bonafide but that the unit having restarted itself theworkmen were entitled to re employment. Though the unit wasrestarted as noted above there was no entitlement on the part of theworkmen represented by the union to re employment after the closurewas duly effected and closure compensation was duly accepted by theworkmen of the first party.6.The conclusion of the Labour Court that the closure was notbonafide appears to be based solely on the fact that within a few monthsof such closure the unit was restarted. The duration of closure thoughrelevant for determining the intention and bonafides of the employer atthe time of closure is not decisive. As the Supreme Court observed inthe case of General Labour UnionBombay vs. B.V. Chavan1 the true test is to consider “whether the closure was a device or pretenceto terminate services of workmen or whether it was bonafide and forreasons beyond the control of the employer at the time of closure.” Thecourt must in such case keep in view all relevant circumstances at the11985 AIR SC page 297 Pg on 04 05 2021 on 22 03 sg wp6940 03.doctime of closure. That does not appear to be the case here. The LabourCourt has in the impugned award at best only cursorily referred to theaspect of bonafides of the closure on a one line observation that “whenthe first party on 1.11.97 or thereafter at any time started its factorymanufacturing activity then this clearly proves that the closure was notbonafide.” This was followed by another startling observation by thecourt that “after restarting of the factory by the first party thetermination of these 10 employees converted into retrenchment.” TheLabour Court in other words treated the closure in its own words as“valid upto the date of restarting of the factory of the first party”. This isclearly fallacious and has no basis in law.7.The impugned order accordingly cannot be sustained. Ruleis accordingly made absolute and the petition is allowed by quashing andsetting aside the impugned award and answering the reference in thenegative.( S.C. GUPTE J. ) Pg

No error in the impugned judgment of conviction for offence punishable under Section 25 Arms Act on grounds of improper procedure: Delhi High Court

Possession for arms without permit is illegal, but this illegality requires to proven by following the appropriate procedures and the mandated code of conduct. This was held in the judgment passed by a single bench judge HON’BLE MS. JUSTICE MUKTA GUPTA, in the matter of AMIR alias SALEEM & ORS V. STATE dealt with an issue where the petitioner filed seek setting aside of the judgment dated 6th November, 2019 whereby the learned Additional Sessions Judge dismissed the appeal filed by the petitioners challenging the judgment of the learned CMM dated 31st January, 2019 convicting the petitioners for offence punishable under Section 25 Arms Act and the order on sentence dated 5th February, 2019 directing them to undergo sentence of simple imprisonment for a period of three years and a fine of ₹1000/ each. Petitioner contends that the material witness of the prosecution Inspector Sunil Kumar to whom the information was passed and on whose directions the raiding team was constituted was not examined before the Court. The sanction granted by the DCP concerned is without application of mind for the reason pistol allegedly recovered from the petitioner was not placed before the sanctioning authority. State has taken this Court to the impugned judgment of conviction and order on sentence and contends that there is no error therein and no case for reduction of the sentence is also made out. The sanction was granted by the competent authority after going through all the material documents and the exhibits are not required to be sent to the sanctioning authority for grant of sanction. Case of the prosecution based on the statement of the witnesses is that on 23rd March, 2017 upon receipt of secret information. Contention of counsel for the petitioner that public witnesses were not associated and hence the Police witnesses should not be believed deserves to be rejected. As held by the Supreme Court in the decision reported as (2009) 7 SCC 178 Karamjit Singh Vs. State of Punjab, testimony of the witnesses cannot be discarded merely because they are Police officials. In support of the contention regarding harshness of the sentence awarded, learned counsel for the petitioner No.1 has relied upon the decision of the Supreme Court in Samir Ahmed, Rafiq Ahmed Ansari Vs. State of Gujarat.

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 9th July 2021 Decided on: 3rd August 2021 CRL.REV.P. 1205 2019 & CRL.M.(BAIL) 600 2021AMIR alias SALEEM & ORS. Petitioner Represented by: Mr.Akshay Bhandari Advocate for the petitioner No.1. Mr.Wajih Shafiq Advocate with Ms.Ramsha Shan Advocate for the petitioner Nos. 2 and 3. Respondent Represented by: Mr.Amit Gupta APP for the State with SI Amit P.S. Crime and HON BLE MS. JUSTICE MUKTA GUPTA By this petition the petitioners Amir @ Saleem Sonu @ Zakir and Shahjad @ Abid seek setting aside of the judgment dated 6th November 2019 whereby the learned Additional Sessions Judge dismissed the appeal filed by the petitioners challenging the judgment of the learned CMM dated 31st January 2019 convicting the petitioners for offence punishable under Section 25 Arms Act and the order on sentence dated 5th February 2019 directing them to undergo sentence of simple imprisonment for a period of three years and a fine of ₹1000 each. Learned counsel for the petitioner contends that the material witness of the prosecution Inspector Sunil Kumar to whom the information was CRL.REV.P. 1205 2019 passed and on whose directions the raiding team was constituted was not examined before the Court. The sanction granted by the DCP concerned is without application of mind for the reason pistol allegedly recovered from the petitioner was not placed before the sanctioning authority. No public witness was joined at the time of apprehension of the petitioners. No efforts were made by the investigating agency to trace the source of arms and ammunition allegedly recovered from the petitioners. There are glaring discrepancies in the deposition of the prosecution witnesses. It is further contended that no case was made out before the learned CMM for awarding the maximum sentence imprisonment for a period of three years. Learned APP for the State has taken this Court to the impugned judgment of conviction and order on sentence and contends that there is no error therein and no case for reduction of the sentence is also made out. The sanction was granted by the competent authority after going through all the material documents and the exhibits are not required to be sent to the sanctioning authority for grant of sanction. Case of the prosecution based on the statement of the witnesses is that on 23rd March 2017 upon receipt of secret information arrival of one Saleem @ Amit along with his associate who is an accomplice of gangster Nasir loged in jail was received as per which Saleem @ Amir along with associates was to come from East Azad Nagar along with illegal arms. Information in this regard was given to Insp. Sunil Kumar the senior officer and a raiding team was constituted comprising of SI Neeraj ASI Vikal ASI Rakesh Kumar ASI Surender Pal etc. which team along with secret informer reached East Azad Nagar in three separate vehicles. Passerbys were requested to join the investigation however none cooperated. On CRL.REV.P. 1205 2019 reaching H.No. A 53 one Masood Hasan R o Top floor of the same building was present. He was also requested to join the raiding team however he also refused citing his ill health and age. In the meantime three persons got down from the stairs of the building and one of them was identified as Saleem @ Amir by the informer. They tried to flee away from the spot but were apprehended by the raiding team. The three persons coming down disclosed their names as Saleem @ Amir Sonu @ Zakir and Shahjad @ Abid. On the personal search of Saleem @ Amir one pistol loaded with two live cartridges Sonu @ Zakir with one pistol and three live cartridges and Shahjad @ Abid with one pistol and two live cartridges were recovered. The sketches of pistols and cartridges recovered were prepared and they were seized vide the seizure memo. Rukka was sent from the spot on which FIR No. 42 2017 under Section 25 Arms Act was registered at PS Crime Disclosure statements of the accused were recorded and the case property was deposited in the malkhana from where it was sent to FSL. As per the FSL report the recovered articles were arms and ammunitions as defined under the Arms Act and witnesses who appeared in the witness box supported the case of the prosecution and nothing material could be elicited in their cross examination. Contention of learned counsel for the petitioner that public witnesses were not associated and hence the Police witnesses should not be believed deserves to be rejected. As noted above efforts were made to join the public witnesses including one who was resident of the same building at the fourth floor however they refused to join the raiding party. Further nothing CRL.REV.P. 1205 2019 material has been elicited in the cross examination to come to the conclusion that the Police witnesses were inimical to the petitioner or had the motive to falsely implicate them. As held by the Supreme Court in the decision reported as7 SCC 178 Karamjit Singh Vs. State of Punjab testimony of the witnesses cannot be discarded merely because they are Police As regards the issue of sanction is concerned the only ground of challenge is that the recovered pistols and cartridges were not produced before the sanctioning authority. Once the case property is deposited in the malkhana the only place where it is required to be sent is the FSL and after receipt from the FSL it is required to be deposited in the malkhana to be produced in the Court and the prosecution is bound to prove the chain of custody of the articles so as to rule out tampering therein. The case property cannot be taken out for being examined by the competent authority for grant of sanction who has relied upon the entire material collected during the course of investigation including the statements of the witnesses and the FSL report received. The order granting sanction dated 4th August 2017 specifically mentions the FSL report dated 25th May 2017 of the Senior Scientific Assistant Ballistic FSL Govt. of NCT Delhi. In support of the contention regarding harshness of the sentence awarded learned counsel for the petitioner No.1 has relied upon the decision of the Supreme Court in CRL.A. 992 993 2016 Samir Ahmed RafiqAhmed Ansari Vs. State of Gujarat wherein in the Supreme Court held as under: “7. Section 25(1AA) of the Arms Act deals with manufacture sale transfer etc. of the prohibited arms. In this case the prosecution has not adduced any evidence to show that the appellant accused had indulged in manufacturing of arms or CRL.REV.P. 1205 2019 prohibited ammunition in contravention of section 7. Since the prosecution has not adduced any evidence to substantiate the allegation of manufacture in our view the conviction of the appellant accused under Section 25(1AA) cannot be sustained. 8. The question falling for consideration is that what is the offence for which the appellant is to be convicted for the possession of the country made pistol loaded with live cartridges and for possession of two other live cartridges. Section 3 deals with licence for acquisition and possession of firearms and ammunition. As per Section 3(1) no person shall acquire have in his possession or carry any firearm or ammunition unless he holds a licence issued in accordance with the provisions of the Arms Act and the Rules made thereunder. Contravention of Section 3 is punishable under Section 25(1B) a) with imprisonment for a term which shall not be less than one year but which may extend to three years and also be liable to fine. Both the Courts recorded concurrent findings that the appellant was found in possession of country made pistol loaded with live cartridges and in possession of two other live cartridges which act is clearly in violation of Section 3 of the Act. It is not the case of the appellant that he has a licence for possession of country made pistol. The possession of the country made pistol without licence is punishable under Section 25(1B)(a) of the Arms Act. The appellant is said to have undergone the sentence of imprisonment for 1 ½ yearsof the Arms Act is modified to Section 25(1B)(a) and the sentence of imprisonment is modified to the period already undergone. The appellant is on bail. His bail bonds shall stand 10. Undoubtedly even in the present case except the disclosure statement there is no material before the Court to come to the conclusion that the petitioners were possessing the arms and ammunition as punishable under Section 25(1AA). By virtue of Section 25(1AA) any person who has in his CRL.REV.P. 1205 2019 possession for sale transfer conversion repair test or proof any prohibited arms or ammunition in contravention of Section 7 shall be punishable for imprisonment which shall not be less than 7 years but which may extend to imprisonment for life. The petitioners have not been convicted for violation of Section 7 of the Arms Act but for Section 3(1) of the Arms Act which provides for imprisonment not less than 1 year and which may extend to 3 years. 11. A perusal of the nominal roll of the three petitioners would reveal that except Shahjad the two other accused have other multiple involvements including in serious offences. Further the manner in which the three accused were coming down together armed with the pistols along with live cartridges it is evident that the purpose of possession was for some unlawful activity. In view of the discussion aforesaid this Court finds no error in the impugned judgment of conviction as also no ground to modify the order on sentence. Petition and application are accordingly dismissed. MUKTA GUPTA) AUGUST 03 2021 CRL.REV.P. 1205 2019

Trademarks that are identical or nearly assembles each other cannot be enforced against each other: High Court of Delhi

Section 28 of the Trade Marks Act, 1999, states that a validly registered trademark gives to the registered proprietor the exclusive right to use that trademark, except that where two persons are registered proprietors of trademarks that are identical or nearly resemble each other. The question as to their exclusive right to use any of those trademarks was examined by High Court of Delhi, containing Justice Asha Menon in the matter of Humdard National Foundation (India) & Anr. vs. Sadar Laboratories Pvt. Limited [CS (COMM) 551/2020] on 6.01.2022. The facts of the case are that plaintiff No.1 is Hamdard National Foundation (India), and the plaintiff No.2 is Hamdard Dawakhana. The Plaintiffs are engaged in the business of manufacturing and selling inter alia, Unani and Ayurvedic medicines, oils, syrups, and non-alcoholic beverages for over 100 years. The defendant company is Sadar Laboratories Pvt. Ltd. that exists since the year 1949, is also engaged in the business of manufacturing Unani medicines, syrups and botanical products. The present case has been filed on the ground that the defendant was not only infringing the well-known trademark of the plaintiffs in ‘Hamdard’ and ‘Rooh Afza’ but was also passing off its products as those of the plaintiffs by using the name ‘Dil Afza’. The plaintiffs have also set out in detail, the years since when the trademark ‘Rooh Afza’ in relation to these products had been registered, the first one being on 3rd August, 1942. The registration continues to be valid even now. The product/sharbat of the plaintiffs sold under the trademark ‘Rooh Afza’ in bottles, has a unique colour combination, layout, get-up and arrangement of features, particularly, a unique and distinct floral arrangement. It is alleged that in the month of March, 2020, the plaintiffs came to know that the defendant had issued an advertisement launching its syrup/sharbat, bearing the mark ‘Dil Afza’ in deceptively similar ringlet bottles as that of the ‘Rooh Afza’ bottle. The defendant had with mala fide intention, also adopted a deceptively similar mark, unique get-up, and design for its product. An application for registration of the mark ‘Sharbat Dil Afza’ in the name of the defendant seems to have been filed on 10th June, 2018 on the basis of ‘proposed to be used’. Another application was filed on 4th July, 2018, claiming ‘user’ since 1949. The plaintiffs claim that it was due to oversight that this application could not be opposed by the plaintiffs and therefore, the defendant has been granted registrations in respect of the mark ‘Sharbat Dil Afza’. The Counsel for the plaintiffs submitted that the defendant had been using its trademark for medicines i.e., in Class-32, whereas, in 2018, it had sought registration in Class-5 claiming to have been in use of the said trademark for medicines since 1949. However, the drugs licence had been obtained only in 1976, whereas the plaintiffs have been producing and marketing their product/sharbat under the name ‘Rooh Afza’ since 1907 and had obtained the first registration of its trademark in 1942. It was further contended that the trademark ‘Roof Afza’ is a well-known mark, thus fits the definition of a ‘well-known trademark’ under Section 2(1)(zg) of the Trade Marks Act, 1999. The Counsel for the defendant contended that since both the marks were registered, the suit for infringement did not lie in view of the provisions of Section 29 of the Trade Marks Act, 1999. Learned counsel for the defendant further submitted that ‘Dil Afza’ had been in use since 1949 in Class-5. ‘Rooh Afza’ was also being used in Class-5 since 1949 till 2020 and clearly no confusion had arisen. Therefore, the adoption of ‘Dil Afza’ for syrups and sharbats by the defendant was not mala fide and was not intended for creating confusion. It was submitted that the defendant had its own reputation built over a long period of time and as such, there was no requirement for the defendant to adopt a deceptive trademark to benefit from the reputation of the plaintiffs. It was submitted that both parties were members of the Unani Drug Manufacturers Association and were known to each other and therefore, the plaintiffs were well aware of the defendant’s reputation. It was also his submission that the plaintiffs had not obtained separate registrations for ‘Rooh’ and ‘Afza’ and the registration was for the label in entirety i.e., ‘Rooh Afza’. Similarly, the defendant had got the registration for the entire label/trademark of ‘Dil Afza’ and also could not have got the words ‘Dil’ or ‘Afza’ individually registered. Such registrations would have been refused under Section 9(a) & (c) and Section 11 of the Trade Marks Act, 1999. There could be no confusion between the product of the defendant, namely, ‘Dil Afza’ and the product of the plaintiffs, namely, ‘Rooh Afza’ also on account of the get-up, layout and labelling of the two products.

IN THE HIGH COURT OF DELHI AT NEW DELHI Pronounced on: 6th January 2022 CS551 2020 HAMDARD NATIONAL FOUNDATION& ANR. Plaintiffs Through: Mr. S.P. Singh and Mr. Sunil Mishra Advocates SADAR LABORATORIES PVT. LIMITED Defendant Through: Mr. N.K. Kantawala and Mr.Prakhar Sharma Advocates HON BLE MS. JUSTICE ASHA MENON O R D E R I.A.12032 2020This order will dispose of the application under Order XXXIX Rules 1 and 2 CPC filed by the plaintiffs along with the suit seeking permanent injunction restraining the defendant from infringing their registered trademarks and seeking protection against disparagement dilution and tarnishment of trademarks damage to reputation and tarnishment of brand equity and damages. The plaintiff No.1 is Hamdard National Foundation a charitable institution registered under the Societies Registration Act 1860 and the plaintiff No.2 is Hamdard Dawakhana also trading as Hamdard CS551 2020 Laboratories which is a business held in trust earlier trading as Hamdard Dawakhana551 2020 bottles has a unique colour combination layout get up and arrangement of features particularly a unique and distinct floral arrangement. It is alleged that in the month of March 2020 the plaintiffs came to know that the defendant had issued an advertisement launching its syrup sharbat bearing the mark ‘Dil Afza’ in deceptively similar ringlet bottles as that of the ‘Rooh Afza’ bottle. The defendant had with mala fide intention also adopted a deceptively similar mark unique get up and design for its product. An application for registration of the mark ‘Sharbat Dil Afza’ in the name of the defendant seems to have been filed on 10th June 2018 on the basis of ‘proposed to be used’. Another application was filed on 4th July 2018 claiming ‘user’ since 1949. The plaintiffs claim that it was due to oversight that this application could not be opposed by the plaintiffs and therefore the defendant has been granted registrations in respect of the mark ‘Sharbat Dil Afza’. 7. Mr. S.P. Singh learned counsel for the plaintiffs submitted that in the circumstances set out hereinabove clearly the defendant was liable to be injuncted. It was submitted that the defendant had been using its trademark for medicines i.e. in Class 32 whereas in 2018 it had sought registration in Class 5 claiming to have been in use of the said trademark for medicines since 1949. However the drugs licence had been obtained only in 1976 whereas the plaintiffs have been producing and marketing their product sharbat under the name ‘Rooh Afza’ since 1907 and had obtained the first registration of its trademark in 1942. It is further submitted that in the matter of Unani Dawakhana v. Hamdard Dawakhana 1930 SCC OnLine Lah 300 the Lahore High Court had found CS551 2020 that the trademark ‘Roof Afza’ was a well known mark thus fitting the definition of a ‘well known trademark’ under Section 2(1)(zg) of the Trade Marks Act 1999. Learned counsel has relied on several judgments orders viz. Hamdard Dawakhanav. Hans Raj 1973 SCC OnLine Del 162 Hamdard Dawakhanav. Prem General StoresHamdard Dawakhana v. Aggarwal Ayurvedic Sansthan and Ors.Hamdard National Foundation v. Hussain Dalal Order dt. 13th August 2014 in CS(OS) 1225 2013] Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd. 5 SCC 73 Midas Hygiene IndustriesLtd. v. Sudhir Bhatia 3 SCC 90 Pankaj Goel v. Dabur India Ltd. 2008 SCC OnLine Del 1744 Novartis AG v. Crest Pharma Ltd. 2009 SCC OnLine Del 4390 Suresh Kumar Jain v. Union of India 2012 SCC OnLine Del 12 Raj Kumar Prasad v. Abbott HealthcareLtd. 2014 SCC OnLine Del 7708 Mex SwitchgearsLtd. v. Max Switchgears Ltd. 8 HCC 347 Allied Blenders & Distillers Ltd. v. Shree Nath Heritage LiquorLtd. 2014) 7 HCC 483 and Insecticides Limited v. Parijat IndustriesPvt. Ltd. 2018 SCC OnLine Del 9748 to submit that the plaintiffs have established a case for interim protection. 8. Mr. N.K. Kantawala learned counsel for the defendant has opposed the grant of any interim relief on various grounds. It was firstly contended that since both the marks were registered the suit for infringement did not lie in view of the provisions of Section 29 of the Trade Marks Act 1999. Further it has been submitted that the word ‘Afza’ has become common to CS551 2020 the trade of sharbat and there are many players in the sharbat market who are using ‘Afza’. It was submitted by the learned counsel that it is for this reason that the plaint also refers to ‘Hamdard’ along with ‘Rooh Afza’ as it was ‘Hamdard’ which was the reputed and well known mark and not ‘Rooh Afza’ alone. The learned counsel has also submitted that Unani Dawakhana related to a case where identical trademarks were used and the infringement had been by an entity which had no registration in its favour. Moreover that decision was rendered under the old Act and whereas the new Act provided for certain pre requisites to be met before a mark was to be considered as a ‘well known trademark’. Learned counsel for the defendant further submitted that ‘Dil Afza’ had been in use since 1949 in Class 5. ‘Rooh Afza’ was also being used in Class 5. Since 1949 till 2020 clearly no confusion had arisen. Therefore the adoption of ‘Dil Afza’ for syrups and sharbats by the defendant was not mala fide and was not intended for creating confusion. It was submitted that the defendant had its own reputation built over a long period of time and as such there was no requirement for the defendant to adopt a deceptive trademark to benefit from the reputation of the plaintiffs. It was that both parties were members of the Unani Drug Manufacturers Association and were known to each other and therefore the plaintiffs were well aware of the defendant’s reputation. It was also the contention of the learned counsel for the defendant that the word ‘Afza’ had a distinct dictionary meaning namely “increasing adding”. The extract of the Urdu English dictionary has also been placed on the record by the learned counsel. It was also his submission that the CS551 2020 plaintiffs had not obtained separate registrations for ‘Rooh’ and ‘Afza’ and the registration was for the label in entirety i.e. ‘Rooh Afza’. Similarly the defendant had got the registration for the entire label trademark of ‘Dil Afza’ and also could not have got the words ‘Dil’ or ‘Afza’ individually registered. Such registrations would have been refused under Section 9(a) and Section 11 of the Trade Marks Act 1999. The learned counsel further submitted that there could be no confusion between the product of the defendant namely ‘Dil Afza’ and the product of the plaintiffs namely ‘Rooh Afza’ also on account of the get up layout and labelling of the two It was submitted by learned counsel for the defendant that since ‘Afza’ was a word that was not distinctive and there was a great difference between the words ‘Dil’ and ‘Rooh’ one meaning ‘heart’ and the other ‘spirit’ no class of consumers would be misled into believing that the product of the defendant was somehow connected to that of the plaintiffs and moreover the ones desirous of buying ‘Rooh Afza’ would buy ‘Rooh Afza’ and those satisfied with the product of the defendant namely ‘Dil Afza’ would purchase that product. Thus even with the commonality of the word ‘Afza’ there was no scope for any confusion. It was further submitted that the plaintiffs’ label contained flowers whereas the defendant’s label had fruits the fonts were different the label of the defendant’s product also contained the house mark ‘Sadar’ and its monogram at the top center clearly indicating the source of the product to be that of the defendant and having nothing to do with ‘Hamdard’ which was the house mark of the plaintiffs the colour of the cap was different as CS551 2020 the plaintiffs’ product has a yellow cap while the cap of the defendant’s product is brown the bottles are also different as reproduced in para 15 of the written statement as regards the shape of the bottle the learned counsel submitted that it was a common shape available in the market and has referred to pages 26 27 of the written statement where the bottles of several products have been reproduced and therefore even the get up would not mislead the prospective buyers. It was also contended on behalf of the defendant that there has been much delay in filing of the present suit inasmuch as in October 2019 in a fair organized by the plaintiffs the defendant’s product ‘Dil Afza’ had been displayed. Yet again in December 2019 in another fair held by the Ayurvedic and Unani Tibbia College the product of the defendant ‘Dil Afza’ had been displayed. Furthermore at the time of registration in 2018 the mark having been duly advertised was not objected to by the plaintiffs. The learned counsel has also relied on several judgments viz. Cadila Laboratories Ltd. v. Dabur India Limited 1997 SCC OnLine Del 360 Titan Industries Ltd. v. Kanishk Jewellery 2002 SCC OnLine Mad 869 Schering Corporation v. Alkem Laboratories Ltd. 2009 SCC OnLine Del 3886 P.P. Jewellers Pvt. Ltd. v. P.P. Buildwell Pvt. Ltd. 2009 SCC OnLine Del 3037 Vardhman Buildtech Pvt. Ltd. v. Vardhman Properties Ltd. 2016 SCC OnLine Del 4738 and Jaideep Mohan v. Hub International Industries 2018 SCC OnLine Del 8199 to contend that the plaintiffs could claim only in respect of the whole word of which it has obtained registration and that there could be no distinctiveness assigned to common words used in the field. Moreover the plaintiffs had failed to CS551 2020 show that the word ‘Afza’ had obtained a secondary meaning to relate to their products exclusively. 14. Finally it was submitted that the suit was liable to be stayed under Section 124 of the Trade Marks Act 1999. Reliance has been placed on Siel Edible Oils Limited v. Khemka Sales Ltd. 2009 SCC OnLine Del 3983. It was further submitted that the relief in the interim application being fundamentally the same as that in main suit no interim injunction could be granted. 15. Learned counsel for the plaintiffs in rejoinder has reiterated that the plaintiffs’ trademark ‘Rooh Afza’ has obtained a secondary meaning having built its reputation over a hundred years. It was further submitted that obtaining a drug licence was not sufficient to prove use and no document had been produced by the defendant despite opportunity to show that the word ‘Dil Afza’ had been in use since 1949. It was argued that it was by deceptions that the trademark got registered as no proof of use had been submitted to the Registrar. For that reason the registration was itself invalid and the defendant could not claim any benefit under Section 28 of the Act. The invoice too that has been filed relating to ‘Sharbat Dil Afza’ is dated 12th March 2020. Reliance has also been placed on Midas Hygiene Industriesto submit that differences in packaging and names of the products were found irrelevant as likelihood of confusion was sufficient. Thus the prayers for injunction were reiterated. I have heard the submissions of learned counsel and have considered the cited judgments as also the written submissions. Admittedly the mark CS551 2020 of the plaintiffs ‘Rooh Afza’ and the mark of the defendant ‘Dil Afza’ are both registered. Under Section 28 of the Trade Marks Act 1999 a validly registered trademark gives to the registered proprietor the exclusive right to use that trademark except that where two persons are registered proprietors of trademarks that are identical or nearly resemble each other their exclusive right to use any of those trademarks cannot be enforced against each other. 17. Of course the arguments have been that the mark of the defendant could not have been validly registered on the ground that the mark of the defendant is similar to the trademark of the plaintiffs which was registered in the year 1942 and that too in reference to the same goods namely ‘sharbat’ and there exists a likelihood of confusion on the part of the public Section 11 of the Trade Mark Act 1999]. It has also been mentioned in para 19 of the present application that the plaintiffs have filed an application for rectification on the ground that complete details have not been disclosed to the Registrar of Trademarks by the defendant. Now under Section 124 of the Trade Marks Act 1999 when rectification proceedings are pending the suit has to be stayed pending final disposal of such proceedings. However learned counsel for the plaintiffs has placed reliance on the decision of a Division Bench of this court in Raj Kumar Prasad to contend that even in such circumstances interim injunction can be granted. The same is evident even from sub Section 5 of Section 124 of the Trade Marks Act 1999. 18. Thus the question of whether the registration of the defendant’s trademark is valid will be appropriately considered in the rectification CS551 2020 proceedings. However the question whether this Court could issue any directions under Section 124(5) of the Trade Marks Act 1999 would remain. While discussing so the question whether the use of the defendant’s trademark for similar products would result in confusion would also have to be considered. 19. Though it is true that the interim application does not specifically seek an injunction against passing off considering that the injunction is claimed against the defendant from using its trademark to create confusion even if stricto sensu passing off has not been pleaded in the application under consideration this aspect may be considered. It is also rightly pointed out by the learned counsel for the defendant that relief qua passing off has been sought in the suit and that the court cannot grant an interim relief that would amount to decreeing of the suit. Nevertheless since the question raised is not just the use of an infringing trademark but also confusion arising in the minds of the purchasers as to the source of the product the question whether any interlocutory order must be passed will necessarily encompass an evaluation of all of these facts. 20. At the outset the contention of the learned counsel for the defendant that the trademark of the plaintiffs namely ‘Rooh Afza’ is not a well known mark cannot be accepted in view of the observations of the Lahore High Court in Unani Dawakhanawhich are as follows: “Sir Moti Sagar for the respondent contended that the word “Ruh Afza” should be held to be an unknown word to the exclusive use of which a trader could establish a claim. He cited among other cases the “Glenfield Starch ” “Eureka Shirts” and “Excelsior Soft Soap” cases to which CS551 2020 laudatory reference has already been made above. The word Ruh Afza in my opinion cannot properly be described as an unknown word and therefore the “Glenfield Starch case” is not directly in point. The word is a Persian word which would be understood by educated Urdu speaking people but would probably convey no very definite meaning to the uneducated public and on the analogy of the “Eureka Shirts” and “Excelsior Soap” cases a claim to its exclusive use might in my opinion be established. The word cannot term such as be regarded as a merely “perfection ” as was held to be in In re Joseph Crosfield & SonsL.R. 1 Ch. D.n 130.] . It is not so intrinsically descriptive of Sharbat as “Nourishing” was held to be of “Stout.” The word therefore is in itself not such that the acquisition of the secondary meaning is necessarily precluded and the principle adopted in the “Camel Hair Belting” case would apply. Whether or no the word has actually acquired a secondary meaning is clearly a question of fact and the finding of the learned District Judge in appeal on that point supported as it is by evidence cannot be interfered with on second appeal. He has clearly found that the expression “Ruh Afza” as applied to Sharbat has secondary meaning and denotes a acquired a particular Sharbat prepared by the plaintiff Hamdard 21. To that extent even on a prima facie view the plaintiffs’ claim of having built a vast reputation and goodwill in respect of their trademark ‘Rooh Afza’ cannot be rejected. 22. But there are fundamental differences between that case and the case at hand. In that case the defendant had sought to use ‘Rooh Afza’ for his CS551 2020 own product whereas in the present case the defendant’s sharbat is called ‘Dil Afza’. Thus there is no identical mark that has been used. The similarity is sought on the ground that ‘Dil’ and ‘Rooh’ entail deep emotions and that the word ‘Afza’ is common to both. As has been repeatedly held by the courts the standard to be adopted while determining confusion arising in the mind is of a consumer of imperfect memory or recollection and of ordinary sensibilities. It would be taking an extreme position even if the consumers were connoisseurs to believe that the use of the word ‘Rooh’ and ‘Dil’ would cause confusion because they connote deep emotion. Buying a bottle of sharbat may involve emotions but not deep to the extent hoped for by the learned counsel for the plaintiffs. In any case those who appreciate this deep emotion would be the first to be able to distinguish between ‘Rooh’ and ‘Dil’. However we are concerned with the common consumer to whom in ordinary use of the words ‘Dil’ and ‘Rooh’ do not denote the same thing. There cannot be a confusion being created on account of the meaning of the two words. This plea raised on behalf of the plaintiffs deserves rejection and is rejected. 23. Turning to the word ‘Afza’ it would be useful to refer to the observations of a Co ordinate Bench of this Court in Cadila Laboratories Ltd.also referred to by a Division Bench of this court in Schering Corporationwhich are reproduced as under: “9. According to the decisions laid down by the various Courts the importance of the prefix of the word should be taken due weightage and important in case where the suffix is common. Where the suffix of the word is common regard must be had to the earlier portion of the word which CS551 2020 in and fact actual mark distinguishes one from the other. Where the suffix is common the earlier portion of the word is the natural distinction As has been settled while ascertaining two rival marks as to whether they are deceptively similar or not it is not permissible to disect the words of the two marks. It is also held that the meticulous comparison of words letter by letter and syllable by syllable is not necessary and phonetic or visual similarity of the marks must be considered …..” 24. A similar view was taken by a Division Bench of this court in Vardhman Buildtech Pvt. Ltd. of the Trade Marks Act 1999 which permitted a proprietor of a trademark to claim to be entitled to the exclusive use of any part thereof separately but it noted that in that case the respondents had made no such application. The position is just the same in the present case. The plaintiffs do not state that they had applied for and obtained registration for the exclusive use of the word ‘Afza’. Thus it is clear that the exclusivity that the plaintiffs can claim is to the complete name ‘Rooh Afza’ and not to either of the two words that constitute the trademark. 25. Learned counsel for the defendant has no doubt stressed that ‘Afza’ could not be subject to exclusive use as there have been several sharbats using the name ‘Afza’ which means “increasing adding” as per the Gem Pocket Twenty First Century Dictionary Urdu to English compiled by M. Raza ul Haq Badakhshani Khawaja Ejaz Rasool and M. Saqlain Bhatti and published by Kutub Khana Hamidia Delhi. Since ‘Afza’ is not descriptive of the sharbat but may signify in keeping with CS551 2020 the exposition of the learned counsel for the plaintiffs an increase in deep enjoyment either of the ‘Rooh’ or the ‘Dil’ in order to claim exclusivity to the word ‘Afza’ the plaintiffs would have to also show that they had built a reputation leading to the acquisition of a secondary meaning whereby ‘Afza’ would denote only ‘Rooh Afza’ being the product of the plaintiffs. Thus while ‘Rooh Afza’ that is the complete word may have acquired a secondary meaning indicative of sharbat produced by the plaintiffs ‘Afza’ by itself does not appear to be of that category. 26. Next it is to be seen whether the simultaneous use of ‘Dil Afza’ would prejudice the plaintiffs’ business. Again admittedly in Class 5 relating to Unani Ayurvedic medicines the defendant has been using ‘Dil Afza’. Even if it is considered to have been in the market only since 1976 even then for such a long time in the field of a more sensitive market of medicine apparently there has been peaceful co existence with no confusion arising in the minds of the consumers. Even if the sharbat has been produced only since 2020 no case has been made out to restrain the defendant from marketing its sharbat under the name ‘Dil Afza’. 27. The application is accordingly dismissed however with a direction to the defendant to maintain a true account of sales of ‘Dil Afza’ syrup sharbat during the pendency of this suit and to submit to the court a quarterly report and account thereof till the disposal of the suit. In the light of Section 124(1)(b)(i) of the Trade Marks Act 1999 the suit is stayed pending the final disposal of the rectification application filed by the plaintiffs. On the conclusion of those proceedings either side may CS551 2020 move an application for listing of the suit before the court. 29. The order be uploaded on the website forthwith. ASHA MENON) JANUARY 06 2022 CS551 2020

Arrest made in Presumption u/s 32 of The Bihar Prohibition and Excise Act, 2016 can only be challenged at the trial stage: Patna High Court

Section 32 of The Bihar Prohibition and Excise Act, 2016 deals with presumption concerning the commission of offense and presumption is that the owner or the occupier of the equipment, machinery, animal, vessel, cart, vehicle, conveyance, or any premises are used in the commission of an offense is also involved unless proved otherwise. A single-judge bench comprising of Justice Ahsanuddin Amanullah adjudication the matter in Birendar Choudhari vs. The State of Bihar (CRIMINAL MISCELLANEOUS No. 10240 of 2021) dealt with the issue of whether to grant bail to a person apprehending arrest  u/s 438 CrPC in the present case or not. The Petitioner who is a resident of the district Palamu in the State of Jharkhand was alleged of transporting 1410 liters of country-made liquor in a bolero jeep which was owned by him and was confiscated and seized in the town of Aurangabad in the State of Bihar and now the Petitioner apprehends arrest u/s 30 (a) of the Bihar Prohibition and Excise Act, 2016. It was submitted by the Petitioner that the articles which were transported on his commercial vehicle were not known to him and in this whole transaction the driver was in charge, and the petitioner was only getting the earning of the use of his vehicle. He also stated that he had no knowledge that he had consented to any illegal business or material being transported in his vehicle. The counsel of the Petitioner contended the Petitioner had no criminal antecedent and stated that the arrest made was not made in accordance with the law as there was no independent witness to prove such allegation the liquor was seized from the said vehicle since the only witness to this incident are two constables who were members of the raiding party. The Respondent in the present application submitted that the application is not maintainable due to the bar prescribed u/s 76(2) of The Bihar Prohibition and Excise Act, 2016 as an offense is committed under the said Act. He also stated that Section 32 deals with the presumption concerning the commission of the offense and the presumption is that the owner of the vehicle is also involved unless proved otherwise. The burden of proof lies on the accused to prove his innocence. It was also submitted by the Respondent that there is a commission of offense prima facie and the bar u/s76(2) of the said act will apply to the arrest of any person on an accusation of having committed an offense under the Act. The court after hearing both the parties concluded that the contentions and submission made by the Respondent had substance and stated that “The language of Section 76(2) of the Act is very clear that an application under Section 438 of the Code of Criminal Procedure, 1973 shall not apply to any case involving the arrest of any person on an accusation of having committed an offense under the Act. Thus, there being an accusation, in terms of Section 32 of the Act, when it is admitted that the vehicle from which seizure has been made, belonged to the petitioner, clearly the bar of maintainability would apply” and hence the court disposed of the application as non-maintainable. Therefore the innocence can only be established by the accused in the stage of the trial.

CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 02 06 2021 IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 102421 Arising Out of PS Case No. 337 Year 2020 Thana AURANGABAD TOWN District Birendar Choudhari aged about 35 years Male Son of Radheshyam Choudhari Resident of Village Ornar PS Chainpur District Palamu The State of Bihar ... Petitioner s ... Opposite Party s For the Petitioner s For the State Mr. Ramakant Sharma Sr. Advocate with Mr. Rakesh Kumar Sharma Advocate Mr. Vinod Shankar Modi APP The matter has been heard via video conferencing 2. The matter has been heard out of turn on the basis of motion slip filed by learned counsel for the petitioner yesterday which was allowed 3. Heard Mr. Ramakant Sharma learned senior counsel along with Mr. Rakesh Kumar Sharma learned counsel for the petitioner and Mr. Vinod Shankar Modi learned Additional Public ProsecutorPS Case No. 337 of 2020 dated 21.09.2020 instituted under Section 30(a) of the Bihar Prohibition and Excise Act 2016of the Act as an offence is made out. It was submitted that Section 32 of the Act deals with presumption with regard to commission of offence and Patna High Court CR. MISC. No.102421 dt.02 06 2021 the presumption is that the owner of the vehicle is also involved unless proved otherwise. It was thus submitted that for proving it otherwise the stage is trial but for the present as prima facie an offence is made out under the Act the bar of Section 76(2) of the Act shall apply to the arrest of any person on an accusation of having committed an offence under the Act 8. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties the Court finds substance in the contention of learned APP. The language of Section 76(2) of the Act is very clear that an application under Section 438 of the Code of Criminal Procedure 1973 shall not apply to any case involving the arrest of any person on an accusation of having committed an offence under the Act. Thus there being an accusation in terms of Section 32 of the Act when it is admitted that the vehicle from which seizure has been made belonged to the petitioner clearly the bar of maintainability would off as not maintainable. 9. For reasons aforesaid the application stands disposed 10. However in view of submissions of learned counsel for the petitioner it is observed that if the petitioner appears before the Court below and prays for bail the same shall be considered Patna High Court CR. MISC. No.102421 dt.02 06 2021 on its own merits in accordance with law without being prejudiced by the present order (Ahsanuddin Amanullah J

Power of Court under Article 226 is Applied where Heading Authority Breached the Principles of Natural Justice: High Court of New Delhi

The Court is duty-bound to exercise its powers under Article 226 where ever it finds that a statutory authority has exercised its jurisdiction either irregularly or acted in a matter in which it had no jurisdiction or committed a breach of the principles of natural justice. This honorable judgement was passed by High Court of New Delhi in the case of Synfonia Tradelinks Pvt Ltd v. Income Tax Officer Ward-22(4) by The Hon’ble Mr. Justice Rajiv Shakdher and The Hon’ble Mr. Justice Talwant Singh. This writ petition was filed against notice, issued under Section 148 of the Income Tax Act, 1961. The income tax return was filed by the assessed along with the balance sheet as on 31.03.2011. On 31.03.2018, which was the last date on which the limitation was to expire, a notice under Section 148 of the Act was issued by respondent no.1, wherein respondent no.1 inter alia stated that he had reason to believe that income chargeable to tax qua had escaped assessment within the meaning of Section 147 of the Act. Accordingly, the assessed was directed to file a return in the prescribed form for the said AY as respondent no.1 proposed to assess/re-assess the income/loss for the concerned AY. As indicated above, the limitation for issuance of notice expired, concededly, on 31.03.2018. Besides this, the said communication went on to state, that without prejudice to its contention that the notice under Section 148 of the Act was time-barred, it had enclosed a copy of the income tax return qua AY 2011- 2012. Since respondent no.1 did not furnish a copy of the proceedings in which he had documented his reasons for initiating proceedings under Section 147 of the Act, the assessed escalated the matter, by writing to the Assistant Commissioner of Income Tax [in short ‘ACIT’] vide communication dated 09.06.2018. Respondent no.1 in no uncertain terms, had indicated in the order recording reasons that the information which triggered the initiation of proceedings qua the assessee under Section 147 of the Act was received upon a search being carried out at the residence. The court quash the impugned notice dated 31.03.2018 stating that, “that the order recording reasons neither discusses the contents of the report received from the investigation wing or the statements made by Mr. Pradeep Kumar Jindal and his associates. The order recording reasons, merely, indicates that the formation of belief is based on these sources. Furthermore, although, there is a reference to Shri Laxman Singh Satyapal and Ms. Meera Mishra in paragraph 3.14 of the counter-affidavit, as persons, whose statements were also recorded during the search, which formed the basis of initiation of proceedings under Section 147 of the Act, there is no reference to them in the order recording reasons.”

J 1 IN THE HIGH COURT OF DELHI AT NEW DELHI Judgement reserved on 15.03.2021 Judgement pronounced on 26.03.2021 W.P.(C) 12544 2018 SYNFONIA TRADELINKS PVT LTD .....Petitioner INCOME TAX OFFICER WARD 22(4) .....Respondent Through: Mr. Udaibir Singh Kochar and Ms. Kunjala Bhardwaj Advs. Through: Ms. Vibhooti Malhotra and Mr. Shailendra Singh Adv. HON BLE MR. JUSTICE RAJIV SHAKDHER HON BLE MR. JUSTICE TALWANT SINGH RAJIV SHAKDHER J.: TABLE OF CONTENTS Preface ............................................................................................................... 2 Background facts ............................................................................................... 2 Submissions made on behalf of the assessee ...................................................... 5 Submissions advanced on behalf of the Revenue ............................................... 7 Analysis and Reasons ...................................................................................... 10 Conclusion ....................................................................................................... 20 W.P.12544 2018 Preface: This writ petition is directed against notice dated 31.03.2018 issued under Section 148 of the Income Tax Act 1961 and the sanction accorded by respondent no. 2 i.e. the Principal Commissioner of Income Tax Delhi VIII on 29.03.2018 for issuance of notice under Section 148 of the Act. The assessee being aggrieved has moved this court via the instant writ petition. Background facts: To adjudicate upon the writ petition the following broad facts are required to be noticed: 2.1. The assessee before us is a private limited company going by the name Synfonia Tradelinks Pvt. Ltd. The assessee was incorporated on 28.05.1993 the Companies Act 1956 albeit under the name Synfonia Pharmaceuticals Pvt. Ltd. On 31.03.2015 the assessee changed its name to Synfonia Tradelinks Pvt. Ltd. 2.2. The income tax return for the assessment year2010 2011 along with the balance sheet as on 31.03.2010 was filed by the assessee on 23.09.2010. Insofar as the succeeding year was concerned which is also the AY in issue i.e. AY 2011 2012 the income tax return was filed on 29.08.2012 by the assessee along with the balance sheet as on 31.03.2011. Returns for the aforementioned AY(s) were filed via electronic mode. 2.4. On 31.03.2018 which was the last date on which the limitation was to expire a notice under Section 148 of the Act was issued by respondent no.1 wherein respondent no.1 inter alia stated that he had reason to believe that income chargeable to tax qua AY 2011 2012 had escaped assessment within the meaning of Section 147 of the Act. Accordingly the assessee was directed to W.P.12544 2018 file a return in the prescribed form for the said AY as respondent no.1 proposed to assess re assess the income loss for the concerned AY. 2.5. The record shows that the assessee had perhaps written to respondent no.1 on 03.04.2018 to close the reassessment proceedings as the notice under Section 148 qua AY 2011 2012 was time barred having been served upon him after the expiry of the prescribed limitation. As indicated above the limitation for issuance of notice expired concededly on 31.03.2018. This aspect finds mention in the assessee’s communication dated 23.04.2018 addressed to respondent no.1. Besides this the said communication went on to state that without prejudice to its contention that the notice under Section 148 of the Act was time barred it had enclosed a copy of the income tax return qua AY 2011 In addition to the aforesaid the assessee also called upon respondent no.1 to furnish a copy of the reasons based on which he believed that the assessee’s income for AY 2011 2012 had escaped assessment. The communication concluded with a request to respondent no.1 to furnish a copy of the approval granted by respondent no.2 for initiating proceedings under Section 147 of the 2.7. Since respondent no.1 did not furnish a copy of the proceedings in which he had documented his reasons for initiating proceedings under Section 147 of the Act the assessee escalated the matter by writing to the Assistant Commissioner of Income Tax vide communication dated 09.06.2018. In this communication while flagging the issue that the assessee has not been furnished reasons for initiating proceedings under Section 147 of the Act reference was also made to the fact that the assessee’s case had also been picked up for initiating proceedings under Section 147 in AY 2009 2010 and AY 2010 2011 when additions amounting to Rs. 3 06 00 000 and Rs. 2 30 62 500 respectively had been made. Furthermore the assessee pointed W.P.12544 2018 out that its share capital which included reserves and surplus as on 31.03.2010 amounted to Rs. 3 87 78 048 a figure which had remained consistent since the financial year2005 2006. 2.8. Even while this request was pending the assessee was served with a notice dated 02.08.2018 under Section 143(2) of the Act vis à vis AY 2011 2012 as also a notice of even date i.e. 02.08.2018 for the said AY under Section 142(1) of the Act. 2.9. Finally on 14.09.2018 the petitioner was furnished the reasons for issuance of notice under Section 148 of the Act. In response to the same the assessee filed its objections. Respondent no.1 vide order dated 08.10.2018 rejected the objections preferred by the assessee. This order was handed over to the chartered accountant of the assessee on 12.10.2018. It is in these circumstances that the assessee was propelled to move this court by way of the instant writ petition. The court while issuing notice dated 26.11.2018 which was accepted by the counsel for the revenue made the following observations: “Issue Notice. Mr. Deepak Anand Jr. Standing Counsel accepts notice. This Court is of the opinion that the petitioner applicant s grievance is with respect to non application of mind by the concerned officerto issue the impugned notice under Sections 147 148 is prima facie warranted and justified. In these circumstances the respondents are hereby restrained from passing a final order in the re assessment proceedings during the pendency of the present writ petition. The Revenue is directed to produce the original file for consideration on the next date of hearing. List on 11th February 2019. Since then respondent no.2 has filed a counter affidavit on behalf of the W.P.12544 2018 revenue. Submissions made on behalf of the assessee: Arguments in the matter on behalf of the assessee have been advanced by Mr. Udaibir Singh Kochar while on behalf of the revenue submissions have been made by Mr. Shailendra Singh. Briefly Mr. Kochar made the following submissions: i. That respondent no. 2 who is the sanctioning authority under Section 151 of the Act has not applied his mind to the reasons supposedly recorded by respondent no.1. Respondent no.2 has simply rubber stamped the reasons by simply writing “approved”. ii. Furthermore the assessee has also gone on to aver that the approval for issuance of notice under Section 148 of the Act and commencement of proceedings under Section 147 of the Act were sought by ACIT and not by respondent no.1. It is averred by the assessee that since the notice was issued after the expiry of four years from the end of the relevant assessment year under the provisions of Section 151 of the Act the ACIT had no role to play in the process of grant of sanction. iii. There was a total non application of mind by both respondent no.1 and respondent no.2 inasmuch as they did not correlate the information received from the Additional Director of Income TaxUnit 2(1) and that which was available in the income tax return and the balance sheet filed by the assessee. It was submitted that not only the information concerning the authorized capital issued and subscribed paid up capital and share premium account was wrongly recorded but also an error as gross as that which pertained to its year of commencement of business had crept in the order recording reasons. It was submitted that respondent no.1 proceeded on the basis that FY 2010 W.P.12544 2018 2011 was the assessee’s first year of business whereas the assessee s incorporation took place as far back as 28.05.1993. a) In support of the aforesaid plea the reference was made to the following facts and figures: Figures referred to in the order containing reasons recorded by respondent no. 1 Authorised Capital Rs. 1 25 00 000 Issued and Subscribed Paid up Capital Rs. 16 00 000 Share Premium Account Rs. 14 83 40 250 Correct figures as per return Authorised Capital Rs. 25 00 000 Issued and Subscribed Paid up Capital Rs. 24 15 200 Share Premium Account Rs. 3 66 16 800 iv. Although respondent no.1 in the notice issued under Section 148 of the Act has referred to the report of the ADIT there is no discussion qua the said report in the order recording reasons. Therefore it is difficult to discern from the order recording reasons as to what was the basis of the formation of belief by respondent no.1 that the assessee s income chargeable to tax had escaped assessment. v. Respondent no.1 erred in rejecting the objections raised by the assessee by relying upon a purported statement of one Mr. Pradeep Kumar Jindal who had allegedly provided accommodation entries to the assessee without furnishing a copy of the statement made by the said person. vi. Respondent no. 2 via the counter affidavit has attempted to justify the issuance of notice under Section 148 of the Act by adverting to matters which are not found in the order recording reasons for initiating proceedings under Section 147 of the Act. The revenue cannot supply reasons by way of counter affidavit which were not available at the time of issuance of a notice under Section 148 of the Act. W.P.12544 2018 vii. We may note at this juncture that the grounds set forth hereafter are the grounds incorporated in the writ petition which were not articulated during the submissions made in the Court before us: a) The assessee has averred that while the reasons which were furnished to the assessee were recorded by ITO Ward 22(4) the reasons purportedly given for obtaining approval of respondent no.2 were recorded by ITO Ward 22(2). b) Besides this the assessee has also averred that although according to the revenue the sanction was accorded by respondent no.2 before the issuance of the notice dated 31.03.2018 under Section 148 of the Act the order granting sanction was served upon it only on 01.11.2018 and that too after repeated requests. According to the assessee the inordinate delay in the dispatch of the sanction order was suggestive of the fact that the sanction was not granted before the issuance of a notice under Section 148 of the Act. In support of this submission reliance was placed on the judgement of the Supreme Court rendered in State of Andhra Pradesh v. M. Ramakishtaiah & Co.93 STC 406(SC). Submissions advanced on behalf of the Revenue: On the other hand Mr. Shailendra Singh submitted that respondent no.1 had reasons to believe that the taxable income of the assessee for the concerned AY 2011 2012 had escaped assessment. 7.1. Mr. Singh contended that notwithstanding the obvious errors in the order recording reasons passed by respondent no.1 concerning assessee s authorized capital issued and subscribed paid up capital the share premium account and the year of its incorporation no fault could be found in the initiation of reassessment proceedings under Section 147 of the Act since all that respondent W.P.12544 2018 no.1 was required to demonstrate that the formation of the belief that the taxable income had escaped assessment was not based on reasons which were either arbitrary or irrational. To demonstrate that the formation of the belief as discernible from the order recording reasons was neither arbitrary nor irrational a reference was made to the following portion of the said order : “Further on perusal of return of income filed by the assessee for A.Y 2010 11 and A.Y 201l 12 it has been observed that the assessee has shown unsecured loans of Rs. 38 071 and Rs. 25 57 206 respectively. Thus there is substantial increase in the unsecured loans during A.Y. 2011 12. A careful scrutiny of information received from the investigation wing and reportreceived from Investigation Wing. New Delhi subsequent analysis of report of investigation wing data of transactions and verification of ITR lead to an irresistible conclusion that the assessee company has taken accommodation entry at least up to the amount of Rs.26 93 500 Considering the above referred credible information and enquiries and analysis subsequent to the information. I have reason to believe that an amount at least of Rs.26 93 500 & Commission @ 2.5% amounting to Rs 67 338 has escaped assessment in case the of M s SYNFONIA TRADELINKS PVT. LTD for the A. Y 2011 12 within the meaning of Section 14 7 148 of Income tax Act 1961.” 7.2. The submission advanced was the assessee had accommodation entries from one Mr. Pradeep Kumar Jindal in lieu of cash via dummy companies entities which was reflected in the balance sheets of the assessees as unsecured loans. It was contended that this fact was discovered upon search being conducted at the premises of Mr. Pradeep Kumar Jindal on 18.11.2015. 7.3. Mr. Singh attempted to explain away the assertion made in the order recording reasons “Thus the assessee company has taken bogus share capital share premium account from the above said entry providers amounting to Rs.26 93 500 ” by submitting that the reference to share capital share premium account was an inadvertent error. 7.4. According to Mr. Singh the accommodation entries were reflected in the return of the assessee which is accompanied by its balance sheets in the form of unsecured loans. It was thus the contention of Mr. Singh that at the stage of initiation of reassessment proceedings all that one is required to enquire is W.P.12544 2018 whether or not prima facie material was available which could form the basis for reassessment. Mr. Singh emphasized the fact that at this stage the court was not required to examine the sufficiency or correctness of the material which formed the edifice for the formation of the belief that the assessee’s taxable income had escaped assessment. In support of this plea reliance was placed by Mr. Singh on the judgment of the Supreme Court rendered in Raymond Wooden Mills Limited v. Income Tax Officer Central Circle XI Range Bombay and Ors. 14 SCC 218 7.5. Mr. Singh drew our attention as noted above to that part of the order recording reasons which bore the heading “analysis of information” to emphasize the fact that reassessment proceedings had been initiated as respondent no.1 suspected the genuineness of the loans received during the subject AY. In sum Mr. Singh argued that there was cogent material available for respondent no.1 to form a belief that the assessee s taxable income had escaped assessment. This information according to Mr. Singh which was received from the office of the ADIT and the report generated thereafter and its analysis formed the basis of respondent no.1’s belief that the assessee’s income chargeable to tax had escaped assessment. 7.7. Mr. Singh went on to state that respondent no.2 had given his approval to initiation of proceedings against the assessee only after satisfying himself that a case was made out for initiation of proceedings under the provisions of Section 147 of the Act. 8. We may record here that a perusal of the counter affidavit filed by respondent no.2 would show that the revenue has denied the allegation levelled against it that a breach of principles of natural justice had occurred by adverting to the fact that it had furnished the relied upon documents12544 2018 Jindal and his associates i.e. Shri Laxman Singh Satyapal and Ms. Meera Mishra) to the authorized representative of the assessee at the proceedings held before the respondent no.1 on 12.10.2018. Analysis and Reasons: 9. We have heard the learned counsel for the parties and perused the record. Before we proceed further it would be helpful if we were to set forth certain well established principles enunciated by the courts over the years vis à vis initiation of proceedings under Section 147 of the Act. The reasons which lead to the formation of opinion or belief that the assessee’s income chargeable to tax has escaped assessment should be inextricably connected. In other words the reasons for the formation of opinion should have a rational connection with the formation of the belief that there has been an escapement of income chargeable to taxii) The expression "reason to believe" is stronger than the word "satisfied". The belief should be based on material that is relevant and cogent.(a) The assessing officer should have reasons to believe that the taxable income has escaped assessment. The process of reassessment cannot be triggered based on a mere suspicion. The expression "reason to believe" which is found in Section 147 of the Act does not have the same connotation as reason to suspect". The order recording reasons should fill this chasm. The material brought to the knowledge of the assessing officer should have nexus with the formation of belief that the taxable income of the assessee escaped assessment the link being the reasons recorded in that behalf by the assessing W.P.12544 2018 The AO is mandatorily obliged to record reasons before issuing notice to the assessee under Section 148(1) of the Act. This is evident from the bare perusal of sub sectionof Section 148 of the Act. iv) No notice can be issued under Section 148 of the Act by the A.O. after the expiry of four years from the end of the relevant AY unless the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner arrives at a satisfaction based on the reasons recorded by the A.O. that it is a fit case for issuance of a notice under Section 148 of the Act. See: Section151(1) of the Act]. v) The limitation for issuance of notice under Section 148 as prescribed under Section 149 of the Act commences from the date of its issuance while the time limit for passing the order of assessment reassessment computation and re computation as prescribed under Section 153 of the Act commences from the date of service3 SCC 96]. vi) A jurisdictional error would occur which can be corrected by a writ court if reasons to believe are based on grounds that are either arbitrary and or irrational. 3 SCC 9.1. Thus if one were to apply the aforestated principles it would be clear as daylight that the order recording reasons discloses complete non application of mind. The reason we say so is discernible from the following: 9.2. Respondent no.1 in paragraphs 2 and 3 of the order recording reasons has unequivocally stated that under the heading “Details of information received regarding escapement of income and analysis” that material impounded during the search conducted at the premises of Mr. Pradeep Kumar Jindal had inter alia revealed that he had made investments in the form of share capital share W.P.12544 2018 premium loans and advance in lieu of cash via front non listed companies controlled by dummy directors to the tune of nearly Rs.100 crores which included the assessee. It is in this context that in the order recording reasons the following table is set out: AmountSynfonia Pharmaceuticals Pvt. 17 00 000 Synfonia Pharmaceuticals Pvt. 5 00 000 Synfonia Pharmaceuticals Pvt. 1 00 000 Ltd. Name changed Tradelinks Pvt. Ltd. to Synfonia Synfonia Pharmaceuticals Pvt. Synfonia Pharmaceuticals Pvt. of Entry Dume Footwears Pvt. Ltd. Dume Footwears Pvt. Ltd. Dume Footwears Pvt. Ltd. Resources Ltd. Pawansut Holdings 43 500 3 50 000 26 93 500 The table extracted above as noted in the earlier part of the judgment is followed by the following assertion which is made in the order recording “Thus the assessee company has taken bogus share capital share premium from the said entries providers amounting to Rs.26 93 500 .” 9.3. Furthermore respondent no.1 in no uncertain terms has indicated in the order recording reasons that the information which triggered the initiation of proceedings qua the assessee under Section 147 of the Act was received upon a search being carried out at the residence of Mr. Pradeep Kumar Jindal. While a general statement had been made that Mr. Pradeep Kumar Jindal had provided accommodation entries in the form of share capital share premium loans and advances in lieu of cash qua a large number of beneficiaries through his front companies insofar as the assessee was concerned it was emphasized that the W.P.12544 2018 accommodation entry was reflected in its books in the form of bogus “share capital and share premium”. 9.4. Respondent no.1 in paragraph 4 of the order recording reasons in no uncertain terms alludes to the fact that the information was received from the investigation wing. The emphasis was laid on the fact that the entry providers were three companies i.e. Dume Footwears Pvt. Ltd. Focus Industrial Resources Ltd. and Pawansut Holdings Ltd. A perusal of the order recording reasons shows that the purported investments made via these entities were quantified at Rs.26 93 500 . This information which was the underlining material based on which proceedings under Section 147 of the Act were triggered was correlated with the return of income filed by the assessee for the concerned AY i.e. AY 2011 2012. In correlating the information concededly respondent no.1 made errors with regard to the basic information provided by the assessee in its balance sheet for the year ending on 31.03.2011 concerning authorized share capital issued and subscribed paid up share capital share premium and even as regards the year in which the assessee had been incorporated. The facts and figures have already been recorded in paragraphs 2 to 2.9 above. Therefore the correlation between the underlying material and the information which was available in the balance sheet of the assessee was clearly not made. 9.5. Mr. Singh in a desperate attempt to salvage the situation drew our attention to the unsecured loans shown in the income tax returns of the assessee for AYs 2010 2011 and 2011 2012 amounting to Rs.38 071 and Rs.25 57 206 respectively. Apart from anything else simple math would show that the cumulative total of these figures is Rs.25 95 277 and not Rs.26 93 500 which according to respondent no. 1 is the unexplained credit in the books of accounts of the assessee and hence required to be added under Section 68 of the Act. Therefore for Mr. Singh to say that these are inadvertent W.P.12544 2018 errors and hence should be ignored in our opinion is an argument that is completely misconceived. As indicated above if the information receivedwas that the accommodation entries in lieu of cash were taken in the form of share capital and share premium they could certainly not be linked to unsecured loans received in AYs 2010 2011 and 2011 2012. It is pertinent to note that in the objections filed by the assessee an attempt has been made to explain the purported accommodation entries by stating therein that the advances had been given to the 5 companies adverted to in the order recording reasons which were received back on the dates given in the said order. The assessee also went on to state in its objections that the opening balanceand closing balance of the share premium account and the share capital account Rs. 24 15 200 ) remained unchanged. In other words the emphasis was that there was no increase in the share capital or the share premium account as alleged or at all. In the order passed by the assessing officer dated 08.10.2018 whereby the objections of the assessee were rejected none of this has been dealt with. Therefore in our view while the assessing officer may suspect that the taxable income of the assessee escaped assessment he could not have formed a belief qua the same based on the material which is presently on 9.7. Therefore in our opinion the formation of belief by respondent no.1 that income of the assessee chargeable to tax had escaped assessment was unreasonable and irrational as it could not be related to the underlining information something which is discernible from a bare reading of the order recording reasons. 9.8. This apart what is even more disconcerting is the fact that respondent no.2 who accorded sanction for triggering the process under Section 147 of the W.P.12544 2018 Act simply rubber stamped the reasons furnished by respondent no.1 for issuance of notice under Section 148 of the Act. 9.9. The provisions of Section 151(1) of the Act required respondent no.2 to satisfy himself as to whether it was a fit case in which sanction should be accorded for issuance of notice under Section 148 of the Act and thus triggering the process of reassessment under Section 147. The sanction order passed by respondent no.2 simply contains the endorsement ‘approved’. In our view the sanction order passed by respondent no.2 presents metaphorically speaking ‘the inscrutable face of sphinx’ 2 QB 17500 Also see: State of H.P. v. Sardara Singh 9 SCC 392). In our view the satisfaction arrived at by the concerned officer should be discernible from the sanction order passed under Section 151 of the Act. In this context the observations made by the Supreme Court in Chhugamal Rajpal vs. S.P. Chaliha 1 SCC 453 being apposite are extracted hereafter : “… Further the report submitted by him under Section 151(2) does not mention any reason for coming to the conclusion that it is a fit case for the issue of a notice under Section 148. We are also of the opinion that the Commissioner has mechanically accorded permission. He did not himself record that he was satisfied that this was a fit case for the issue of a notice under Section 148. To Question 8 in the report which reads “whether the Commissioner is satisfied that it is a fit case for the issue of notice under Section 148” he just noted the word “yes” and affixed his signatures thereunder. We are of the opinion that if only he had read the report carefully he could never have come to the conclusion on the material before him that this is a fit case to issue notice under Section 148. The important safeguards provided in Sections 147 and 151 were lightly treated by the Income Tax Officer as well as by the Commissioner. Both of them appear to have taken the duty imposed on them under those provisions as of little importance. They have substituted the form for the substance. “ Emphasis is ours] 10.1. Also see the observations made in the judgment of the Division Bench of this Court in The Central India Electric Supply Co. Ltd. vs. Income Tax W.P.12544 2018 Officer Company Circle X New Delhi & Anr. SCC OnLine Del 472 333 ITR 237. “19. In respect of the first plea if the judgments in Chuggamal Rajpal s caseChanchal Kumar Chatterjee s case and Govinda Choudhury & Sons s case supra) are examined the absence of reasons by the assessing officer does not exist. This is so as along with the proforma reasons set out by the assessing officer were in fact given. However in the instant case the manner in which the proforma was stamped amounting to approval by the Board leaves much to be desired. It is a case where literally a mere stamp is affixed. It is signed by a Under Secretary underneath a stamped Yes against the column which queried as to whether the approval of the Board had been taken. Rubber stamping of underlying material is hardly a process which can get the imprimatur of this Court as it suggests that the decision has been taken in a mechanical manner. Even if the reasoning set out by the ITO was to be agreed upon the least which is expected is that an appropriate endorsement is made in this behalf setting out brief reasons. Reasons are the link between the material placed on record and the conclusion reached by an authority in respect of an issue since they help in discerning the manner in which conclusion is reached by the concerned authority. Our opinion is fortified by the decision of the Apex Court in Union of India v. M.L. Capoor and Ors. MANU SC 0405 1973 : AIR 1974 SC 87 wherein it was observed as under: 27. ... We find considerable force in the submission made on behalf of the Respondents that the "rubber stamp" reason given mechanically for the supersession of each officer does not amount to "reasons for the proposed supersession". The most that could be said for the stock reason is that it is a general description of the process adopted in arriving at a conclusion. ... ... ... 28. ... If that had been done facts on service records of officers considered by the Selection Committee would have been correlated to the conclusions reached. Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi judicial. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way can opinions or decisions recorded be shown to be manifestly just and reasonable. emphasis supplied) This is completely absent in the present case. Thus we find force in the contention of learned Counsel for the Appellant that there has not been proper application of mind by the Board and if a proper application had taken place there would have been no reason to re open the closed chapter in view of what we are setting out hereinafter.” W.P.12544 2018 Emphasis is ours] 10.2. We may also note that apart from respondent no.2 the order according sanction also bears an endorsement of the ACIT. For the sake of convenience the said endorsement is set forth hereafter: “On perusal of information received from the investigation wing & reasons recorded by AO I am satisfied that Rs. 27 60 838 has escaped taxation. Approval for reopening may be granted.” 10.3. There is no explanation by the revenue as to why approval of ACIT was taken in the instant case. Even if we were to assume for the moment that the approval of the ACIT was rightly taken a bare perusal of the endorsement would show that there is no application of mind as to whether the information received by the AO had any nexus with the formation of honest belief that the assessee s taxable income had escaped. What is glaring is that the ACIT notes that income to the tune of Rs.27 60 838 had escaped taxation whereas in the order recording reasons income has been quantified as Rs.26 93 500 . As noted above based on the arguments of Mr. Singh that the escaped income should be related to unsecured loans there is in play a third figure which is Rs.25 95 277 . 10.4. The reliance placed by Mr. Singh on paragraphs 40 to 43 of the judgment of a division bench of this court in Experion Developers Pvt. Ltd. and Ors. vs. Assistant Commissioner of Income Tax and Ors.422 ITR 355(Delhi) in support of his submissions that the order granting sanction for initiation of proceedings under Section 147 was valid is misconceived as a careful perusal of paragraph 42 of the said judgment would show that the learned judges were of the view that there was no requirement to provide elaborate reasoning while granting approval if the principal commissioner was satisfied with the reasons recorded by the AO. In that case while according sanction the principal commissioner had at least paid lip service to the provision by noting “I am satisfied that it is a fit case for notice under Section 148”. In the instant case respondent no.2 i.e. the principal commissioner has not even made such an W.P.12544 2018 endorsement. This apart the endorsement of the ACIT should have indicated to respondent no.2 if nothing else that there was something amiss when the escaped income is quantified as Rs. 25 95 277 whereas in the order recording reasons penned by respondent no.1 the escaped income was quantified as Rs.26 93 500 . 10.5. As noted above in the instant case because of the failure on the part of respondent no.1 to correlate the information received with the ostensible formation of belief by him respondent no.2 attempted to connect via her counter affidavit that the escaped income with the "suspicious" unsecured loan entries reflected in the assessee s returns for AY 2010 2011 and 2011 2012. As correctly argued by Mr. Kochar the counter affidavit and the submissions made across the bar cannot be used to sustain the impugned actions. The order recording reasons and the order granting sanction should speak for themselves. See observations made Commissioner Of Police Bombay vs Gordhandas Bhanji AIR 1952 SC 16 and Mohinder Singh Gill and Ors. vs. The Chief Election Commissioner New Delhi and Ors.1 SCC 405) 10.6. Insofar as the ground taken in the writ petition is concerned that the notice issued under Section 148 was barred by limitation we are of the view that this submission advanced on behalf of the assessee is not sustainable. As noticed above the limitation provided under Section 149 of the Act for issuance of notice commences from the date when the notice is issued and not when the notice served. The record presently before us shows that the notice was issued on 31.03.2018. Therefore this submission made on behalf of the petitioner is 10.7. The other argument advanced on behalf of the assessee that the notice under Section 148 was issued by an AO Ward No.22(4) while the order recording reasons was issued by another officer is not borne out from the W.P.12544 2018 record. 10.8. This brings us to another ground raised in the writ petition which is that there was a huge time lag between the issuance of the impugned notice under Section 148 of the Act and the date when the order recoding reasons was furnished to the authorized representatives of the petitioner. While the assessee is in our view right in contending that if the time lag is huge it does point in the direction that the order was ante dated a final view on this aspect could have only been taken if the original record was examined by us. Since the revenue has denied the allegation levelled against it and Mr. Kochar did not press this issue during the hearing we can t reach a definitive view on this aspect of the matter based on the record available before us Therefore this submission made on behalf of the assessee cannot be accepted. 11. Given the aforesaid we are also of the view that since respondent no.1 was unable to link the information received with the formation of belief a jurisdictional error did occur which this Court is empowered to correct by exercising its powers under Article 226 of the Constitution of India 2 SCR 241). 11.1. Although Mr. Singh did argue that the assessee should be relegated to statutory remedies in our view a case is made out for interference at this stage itself. According to us relegating a party to an alternative remedy is a self imposed limitation which however does not denude the court of its powers under Article 226. The Court is duty bound to exercise its powers under Article 226 where ever it finds that a statutory authority has exercised its jurisdiction either irregularly or acted in a matter in which it had no jurisdiction or committed a breach of the principles of natural justice. 11.2. Before we conclude we must also indicate that the order recording reasons neither discusses the contents of the report received from the investigation wing or the statements made by Mr. Pradeep Kumar Jindal and his W.P.12544 2018 associates. The order recording reasons merely indicates that the formation of belief is based on these sources. Furthermore although there is a reference to Shri Laxman Singh Satyapal and Ms. Meera Mishra in paragraph 3.14 of the counter affidavit as persons whose statements were also recorded during the search which formed the basis of initiation of proceedings under Section 147 of the Act there is no reference to them in the order recording reasons. 11.3. Besides this the revenue has taken the position that not only the report of the investigation wing but also the statements of Mr. Pradeep Kumar Jindal and his aforementioned associates were furnished to the authorized representative of the assessee in the proceedings held before respondent no.1 on 12.10.2018does not refer to this fact. Therefore apart from anything else a case could have been made out also of breach of principles of natural justice. For the reasons best known Mr. Kochar did not press this issue. We need not elaborate any further on this aspect of the matter as our decision does not turn on whether or not there has been a breach of principles of natural justice. Conclusion: 12. Thus for the foregoing reasons we are inclined to quash the impugned notice dated 31.03.2018 issued under Section 148 of the Act as well as the order granting sanction issued by respondent no.2. It is ordered accordingly. Parties will bear their own cost. W.P.12544 2018 13. The case papers shall stand consigned to record. RAJIV SHAKDHER J. TALWANT SINGH J. MARCH 26 2021 Click here to check the corrigendum if any W.P.12544 2018

The High Court has the power to transfer investigation to the CBI even without the consent of the State Government as is laid down by series of judgments of Supreme Court. However, such power should be exercised in rare and exceptional cases : High Court of Tripura

In the normal circumstances of minor breach of peace, the administration may be well within its right to broker peace between warring groups to achieve more lasting peaceful solution in the locality. However, when an offence as serious as one punishable under Section 307 of IPC is disclosed, the same cannot be a matter of compromise as held by the High Court of Tripura through the learned bench lead by Chief Justice Akil Kureshi in the case of Mrs. Buddhapati Chakma v. The State of Tripura (WP(Crl.) No.6/2021) The brief facts of the case are that, the petitioner’s husband and his brother were allotted lands under Forest Rights Act, 2006 under two separate allotment orders. On 19th October 2020, the members of one Vivekananda Memorial Club of Kanchanpur started constructing pandals for Durga Puja on the lands allotted to Pindulal Chakma and his brother (since deceased) without their consent. On 21st October 2020, wife of deceased Premlal Chakma along with a community leader approached the Kanchanpur Police Station seeking protection against the land. They were diverted to the SDM. However, no action was taken on the same. At about 10:00 O’clock in the morning of 22nd October 2020 the members of Chakma tribe of the village organized a peaceful protest at Laljuri bridge, Kanchanpur. At around 11.30 a.m a mob of about 150-200 members and supporters of Vivekanda Memorial Club who were non-tribals attacked the protestors with dao, lathi, iron rod, spade etc. and caused grievous injuries to Pindulal Chakma and one Bikanta Chakma. At Dharmanagar District Hospital, condition of Pindulal Chakma deteriorated and therefore was referred to ILS Hospital, Agartala, where he succumbed to his injuries on 4th November 2020. An FIR was lodged before Kanchanpur Police Station regarding this incident, in which it was alleged that the mob of about 150-200 persons belonging to Vivekananda Memorial Club had attacked the peaceful protestors and caused serious injuries to Bikanta Chakma and Pindulal Chakma and the victims are in serious condition. The Hon’ble High Court held, “Considering the issues involved and the factual and legal complexities of the investigation, we do not think that this case presents such rare or exceptional circumstances where the CBI should be involved. However, looking to the slow progress in the investigation and the past incidents noted in the earlier portion of this judgment, the investigation must be taken away from the purview of the local police authorities and be handed over to a Special Investigation Team(SIT) that shall be constituted by this Court. Offences punishable under Section 3(2)(v) and (v-a) of SC ST Act shall be added to the investigation. The State-administration shall proceed to determine the compensation payable to the family of the victim. With the aforesaid directions, the petition is disposed of.”

Page HIGH COURT OF TRIPURA WP(Crl.) No.6 2021 Mrs. Buddhapati Chakma W o Late Pindulal Chakma Village Burshingpara P.O : Laljuri Kanchanpur Police Station North Tripura district Tripura Pin 799270. .. Petitioner(s). Vs. The State of Tripura represented by the Chief Secretary Government of Tripura New Secretariat Building P.S. NCC P.O Secretariat Agartala West Tripura Pin 799010. .. Respondent(s). B_E_ F_O_R_E_ HON’BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON’BLE JUSTICE MR. S G CHATTOPADHYAY For Petitioner(s) For Respondent(s) Mr. Ratan Datta Public Prosecutor. : Mr. Nitesh Kumar Singh Advocate. Mr. S S Dey Advocate General Date of hearing Date of judgment 22nd June 2021. 11th October 2021. Whether fit for reporting : No. Akil Kureshi CJ). JUDGMENT This petition is filed by the wife of one Pindulal Chakma who died on 4th November 2020 due to the injuries caused by a violent mob with deadly weapons in an incident which took place on 22nd October 2020. The deceased belonged to a Scheduled Tribe(ST). An FIR for the incident in question was Page filed before the Kanchanpur Police Station by one Ratneshwar Chakma believing that the investigation is not proceeding properly. Since the police failed to make arrests of the accused persons or to include the provisions of Scheduled Caste and the Scheduled Tribes Act 1989the wife of the deceased has filed this petition which includes following prayers : i) For transferring the investigation to the Central Bureau of Investigation(CBI). perpetrators. ii) To invoke the penal provisions of SC ST Act against the iii) To declare Burshingpara village under Kanchanpur Police Station as an identified area in terms of Section 2(c) of the Scheduled Castes and Scheduled Tribes Rules 1995 To deploy sufficient force in the area to protect the resident members of Scheduled Tribe. v) To provide compensation of Rs.8 25 000 to the petitioner and the dependents of the deceased in terms of the Rules of 1995 and to Page provide other support such as family pension and Government job to one member. the petitioner. vi) To order inquiry against Officer in Charge of Kanchanpur Police Station and Sub Divisional Magistrate(SDM) of Kanchanpur for wilful neglect of duties which led to murder of the husband of 2] Facts leading to this petition can be summarised as under : i) According to the petitioner her husband and his brother were allotted lands under Forest Rights Act 2006 under two separate allotment orders both dated 3rd May 2009. The non tribal residents of the area wanted to grab these lands. Complaints of illegal land grabbing of the tribals by non tribals were also made to the Minister of Tribal Welfare and Forest in November 2018 who had asked the SDM to look into the matter and do the needful. This however did not lead to any resolution. ii) On 19th October 2020 the members of one Vivekananda Memorial Club of Kanchanpur started constructing pandals for Durga Puja on the lands allotted to Pindulal Chakma and his brother without their consent. The family members of the land allottees objected to this activity. On 21st October 2020 wife of deceased Premlal Chakma along with a community leader also approached the Kanchanpur Page Police Station seeking protection against land grabbing by the members of Vivekananda Memorial Club. They were diverted to the SDM upon which a memorandum was presented to SDM on 21st October 2020. However no action was taken on the same. iii) Due to inaction of the SDM at about 10:00 O’clock in the morning of 22nd October 2020 the members of Chakma tribe of the village organized a peaceful protest at Laljuri bridge Kanchanpur. At around 11.30 a.m a mob of about 150 200 members and supporters of Vivekanda Memorial Club who were non tribals attacked the protestors with dao lathi iron rod spade etc. and caused grievous injuries to Pindulal Chakma and one Bikanta Chakma. iv) These attackers did not allow the injured persons to be admitted at nearby Laljuri Hospital and therefore they had to be taken to Machmara Primary Health Centre situated nearly 10 kilometres away from where Pindulal Chakma was referred to Dharmanagar District Hospital. At Dharmanagar District Hospital condition of Pindulal Chakma deteriorated and therefore was referred to ILS Hospital Agartala where he succumbed to his injuries on 4th November 2020. v) An FIR was lodged before Kanchanpur Police Station regarding this incident on 22nd October 2020 in which it was alleged that the mob of about 150 200 persons belonging to Vivekananda Memorial Club had attacked the Page peaceful protestors with weapons such as lathi dao iron rod and caused serious injuries to Bikanta Chakma and Pindulal Chakma and the victims are in serious condition. 3] The petitioner has pointed out that instead of carrying out investigation into the commission of serious offences under Indian Penal Code(IPC) and SC ST Act the administration forced the tribal protestors to sign an agreement that they would not object to the Vivekananda Memorial Club organising Durga Puja and after Durga Puja the administration will demarcate the lands allotted to the tribals by the Government. This document carries the signatures of the Deputy Collector Officer in Charge of Kanchanpur Police Station Sub Divisional Police Officer Block Development Officer etc. as witnesses. Significantly neither Pindulal Chakma nor the wife of his deceased brother are signatories to this so called agreement. 4] The petitioner contends that though the offences punishable under SC ST Act are writ large on the face of the record these provisions have not been invoked. The attackers did not allow the injured victims to be admitted at the nearby health centre and therefore they had to be taken to a hospital nearly 10 kilometres away. The petitioner further points out that the police authorities failed to take any action pursuant to the complaint of Pindulal Page Chakma made on 21st October 2020. In light of these developments the members of the tribal community of the region had also made a representation to the Chief Minister of the State on 6th November 2020. However no action has been taken by the Government so far. 5] The contention of the petitioner and her counsel is that the investigation carried out by the police authorities so far is just eyewash. Even otherwise the members of the Vivekananda Memorial Club are so powerful that the police authorities are unlikely to take any serious action. The members of the Club are roaming freely creating atmosphere of fear and therefore it is necessary to declare the village as an identified area prone to atrocity in terms of Rule 2(c) of the Rules of 1995. The petitioner points out that no compensation in terms of the provisions under the SC ST Act and the Rules made thereunder has also been prayed. It is in this background that the above noted prayers have been made. 6] On the other hand State has filed a reply in which it is stated that upon receipt of the complaint the same was registered as an FIR for commission of offences punishable under Sections 341 326 327 read with Section 34 IPC. The investigating officer has recorded the statements of the witnesses and arrested one Rakesh Chandra Nath. Houses of Kalyan Nath Gokul Nath and Gourab Nath were raided but they were not found. Page Subsequently Gokul Nath was arrested on 5th November 2020. Upon the death of the injured Pindulal Chakma Section 302 IPC was also added. An application was filed before the SDJM Kanchanpur on 13th November 2020 for permission to add the provisions of SC ST Act. The learned Judge however refused to grant such permission by passing an order on 18th November 2020. Two of the accused are still absconding and therefore not yet arrested. Steps are taken for publication of their photographs in local newspapers and TV channels appealing to the public to provide information about their whereabouts. 7] It is stated that the question of providing compensation to the family of the deceased Pindulal Chakma is under consideration before the State Government. The District Magistrate and Collector has recommended for grant of compensation from Chief Minister Discretionary Fund in his report dated 5th March 2021. The District Magistrate and Collector has also written a letter on 9th March 2021 to the Secretary Revenue Department to treat the incident as one of the atrocity on Scheduled Tribes and to provide financial assistance from the Chief Minister Discretionary Fund. On 1st April 2021 Deputy Secretary Revenue also wrote a letter to the Deputy Secretary Home for providing such financial assistance. It is stated that the process for providing financial assistance is under active consideration. Page 8] It is denied that the injured victims were not allowed to be treated at Laljuri Hospital but the deponent has stated that “it is true that the injured was shifted to Machmara Public Health Centre for treatment considering the boiling circumstances of the area and the fact that the incident took place at Laljuri”. 9] The allegation of coercion in executing the so called agreement dated 22nd October 2020 is denied. It is stated that the same was done with the consent of all parties and stakeholders ignoring the fact that neither Pindulal Chakma nor the wife of his deceased brother who are land allottees are signatories to this document. 10] It is stated that ingredients of SC ST Act were not disclosed in the FIR. However subsequently the investigating officer had submitted a petition before the learned Magistrate who refused to grant permission for addition of these provisions. 11] Having heard learned counsel for the parties and having perused the documents on record what emerges is that a serious complaint of members of the tribal community being attacked by a mob with deadly weapons causing serious injuries was reported to the Police Station on 22nd October 2020. The background of the attack as alleged by the petitioner was that the members Page of the non tribal community were trying to disturb the possession of the lands allotted to the tribals by the Government. Attempts were made to construct Pandals on their lands forcibly without their consent. When the members of the tribal community had gathered for a peaceful protest a mob of nearly 150 200 non tribals attacked them causing serious injuries to at least two of the protestors. One of the injured Pindulal Chakma succumbed to the injuries on 4th November 2020. The other injured person also had received serious 12] Though the respondents in the affidavit which has been filed by the Deputy Secretary Home have denied that the injured were not allowed to be treated at nearby Laljuri Hospital as noted have clearly admitted that they were taken to Machmara Public Health Centre for treatment considering tense situation the area. Thus even administration admits that it was not safe for the injured to be treated in the local Public Health Centre and on account of which the injured had to be shifted to a hospital situated at a considerable distance. 13] When two persons had received serious injuries caused with deadly weapons allegedly by a mob of nearly 150 200 persons it is rather strange that the FIR did not include Section 307 IPC. In the retrospect the fact of one Page 1 of the injured succumbing would establish seriousness of the injuries. The attempt on part of the administration to bring about a so called agreement on 22nd October 2020 itself is also rather unusual. In the normal circumstances of minor breach of peace the administration may be well within its right to broker peace between warring groups to achieve more lasting peaceful solution in the locality. However when an offence as serious as one punishable under Section 307 of IPC is disclosed the same cannot be a matter of compromise. The fact that such compromise was hurriedly stitched on the date of the incident itself and which does not carry the signatures of Pindulal Chakma or his family members and the wife of his deceased brother whose patta lands were at the centre of controversy also shows the hollowness of the agreement. As noted the agreement contained the signatures of Government officials and police officers who were expected to enforce law and ensure peace and tranquillity in the region. Instead of carrying out prompt investigation into the allegations of commission of serious offences if they are found trying to bring about a forced agreement the same is bound to send wrong signals and further embolden the perpetrators. 14] The fact that after months of commission of the offence two of the accused cited by the witnesses are still not apprehended is also a matter of serious concern. We also fined that the State administration has not shown Page 1 sufficient seriousness in invoking the provisions under SC ST Act in the investigation. Firstly it was not necessary for the investigating officer to approach the Magistrate for adding the said provisions. If he was of the opinion that after filing of the FIR during the investigation such offences are disclosed he had the power to add the provisions and carryout the investigation if he was competent to do so or to handover the investigation before the competent police officer. At best he owed a duty to the Magistrate to convey addition of the new provisions in the investigation. Having applied before the Magistrate for such purpose the State administration did not carry the order of the Magistrate refusing to grant such permission any further. We have perused the order of the Magistrate dated 18th November 2020 in which for refusing the permission all that has been stated is as under : “ ….. This Court perused the application of the police as regards addition of charges and heard the submissions of Ld counsels. This court finds merits in the submissions of Ld defence counsel and concurs with the arguments. Therefore the prayer of police for adding additional charges under SC ST act is declined. ” 15] The order of the learned Magistrate is devoid of any reasons. Mere recording that he had perused the application of the police officer but he finds merits in the submissions of the defence counsel and concurs with the arguments for rejecting the application of the police is no reason. What were Page 1 the arguments of the counsel of the defence with which the learned Judge concurred and why is not recorded. Such an order should have been challenged by the State administration. In exercise of extraordinary writ jurisdiction we would quash the order in order to grant the relief to the petitioner for addition of the said provisions though formally before us this order is not challenged. This mere technicality would not detain us from granting effective relief to the petitioner in this respect. 16] The State administration has also handled the question of payment of compensation to the wife and dependents of the deceased Pindulal Chakma rather callously. Despite recommendations by the Officials the final decision is not taken for months on end. The right to receive such compensation would flow from the provisions of the SC SC Act and the Rules made thereunder as well as in terms of the scheme framed by the State administration for providing financial assistance from the Chief Minister Discretionary Fund. Financial assistance from such fund will be largely ex gratia in nature nevertheless once the State administration frames a scheme for the purpose of deciding the entitlement of the victims the parameters of the scheme must be applied uniformly and equally to all without discrimination. In this context there would arise a corresponding right in a victim to be treated equally and for being provided financial assistance if under similar circumstances the Page 1 scheme envisages and the Government has granted in the past. Question for declaring the area as identified area is also pending since long without final outcome. Such sensitive and urgent issues cannot brook long delays. 17] Having said all that we do not find this is a case where the investigation should be handed over to the CBI. Undoubtedly the High Court as a Constitutional Court and a Writ Court has the power to transfer such investigation to the CBI even without the consent of the State Government as is laid down by series of judgments of Supreme Court. However such power should be exercised in rare and exceptional cases. Considering the issues involved and the factual and legal complexities of the investigation we do not think that this case presents such rare or exceptional circumstances where the CBI should be involved. However looking to the slow progress in the investigation and the past incidents noted in the earlier portion of this judgment the investigation must be taken away from the purview of the local police authorities and be handed over to a Special Investigation Team(SIT) that shall be constituted by this Court. 18] Under the circumstances the petition is disposed of with following directions : i) Offences punishable under Section 3(2)(v) andof SC ST Act shall be added to the investigation. Page 1 ii) Further investigation shall be carried out by a Special Investigation Team(SIT) which would be headed by the Superintendent of the District assisted by the Dy.S.P who shall work under the guidance and supervision of the S.P. iii) Request for transferring the investigation to CBI is refused. iv) The State administration shall proceed to determine the compensation payable the family of the victim at appropriate stage in terms of the provisions contained in the SC ST Act and the Rules made thereunder in view of the addition of the offences punishable under the SC ST Act. In the meantime an ad hoc amount of Rs.5 00 000 shall be paid over to the petitioner widow of the deceased Pindulal Chakma which payment shall be adjusted towards the compensation that may be found payable under the provisions of the SC ST Act and the Rules made thereunder or under the scheme framed by the State Government for financial assistance from the Chief Minister Discretionary Fund as the case may be. This amount shall be paid within 1(one) month from today. v) The Home Department shall take a final decision without any further delay and in any case within 1(one) month from today with respect to the proposal for declaring the village in question as a disturbed area in terms of Section 2(c) of the SC ST Act. vi) Further prayers of the petitioner for grant of family pension or Government job to the member of the family of the deceased Page 1 must rest on the outcome of the investigation particularly with respect to commission of offence under SC ST Act and the Government schemes in this regard which are not brought on record by either side. We therefore refrain from giving any such directions and leave it open to the petitioner to agitate these prayers in future if the circumstances so justify. vii) The original papers pertaining to the case which are placed before us may be returned to the respondents. Pending application(s) if any also stands disposed of. ( AKIL KURESHI CJ )

Compensation of Rs. 50,000 granted for illegal detention of the Petitioners: Bombay High Court

A compensation for Rs 50,000 each was granted to the two petitioners that were illegally detained in the jail. The two Petitioners are ex-military persons and were illegally detained by the Police authorities and the executive magistrate for six days. The Bombay High Court presided over by J. T.V. Nalawade & J. M.G. Sewlikar laid this ratio in the case of Arun Tagad & Anr. Vs. State of Maharashtra & Ors., [Criminal Writ Petition No. 574 of 2013]. In January 2013 35-year-old women, had lodged an FIR against the Petitioners that during a quarrel they had assaulted her. The reason for the quarrel was because her family did not allow them to use bullocks and carts for fetching water. The Petitioners were later arrested on the basis of the relevant section of the India Penal Code i.e. Section 323, 324, 504 & 506 of the Code. However, they were released on furnishing a personal bond and surety. Later, as per the report they were arrested again outside the court campus by the same police and were taken before the Executive Magistrate. The Executive Magistrate ordered them to furnish interim bond with two sureties of Rs. 25,000 each. The Petitioners pleaded to accept cash security instead of surety bond as it would take some time. The Executive Magistrate rejected their plea and only after 6 days they could get bail. The Petitioner submitted that the acts of the Police authority and Executive Magistrate are mala-fide and the arrest was illegal which also violated their fundamental rights under the Constitution. The Respondent submitted that the acts were taken as a preventive measure against the Petitioners. The Division bench of the Bombay High Court was of the opinion that, “The order of the Executive Magistrate asking the present Petitioners to execute interim bonds of aforesaid nature is illegal. The bond was involving onerous condition, two sureties having solvency certificates of Rs.25,000 each for each opponent. These circumstances show that there were mala fides and the intention of the police was to see that the Petitioners are arrested and they are kept behind bars for a few days. The record and circumstances show that the Executive Magistrate acted as per such desire of police and he did not apply his mind. The Executive Magistrate ought to have gone through the aforesaid provisions which show that he had no such jurisdiction.”

on 10 12 2020 on 06 01 1Criminal Writ Petition 5713.odtTHE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD.CRIMINAL WRIT PETITION NO. 574 OF 20131.Arun S o Narayan Tagad Age 33 years Occu: Agril R o: Kumshi Tq. & Dist. Beed.2.Shailendra s o Pralhad Tagad Age 34 years Occu: Service R o: As above.... PETITIONERSV E R S U S1.The State of Maharashtra Through Secretary Home Department Mantralaya Mumbai 32.2.The Superintendent of Police Beed Dist. Beed.3.The Collector Collector Office Beed.4.Gramin Police Station Beed Tq. and Dist. Beed.5.The Tahsildar Tahsil Office Beed.... RESPONDENTS…Mr. N. R. Thorat Advocate for Petitioners.Mr. S. J. Salgare APP for Respondents.…CORAM :T. V. NALAWADE &M. G. SEWLIKAR JJ.DATE :01st December 2020. on 10 12 2020 on 06 01 2Criminal Writ Petition 5713.odtJUDGMENT: .Rule. Rule made returnable forthwith. By consent heardboth the sides for final disposal. 2The petition is filed for giving direction to Respondents topay compensation of Rs.5 00 000 to each of Petitioners on theground that the Petitioners were illegally arrested and detained incustody at the instance of police. 3The submissions made and record show that on 28thJanuary 2013 FIR was given to Beed Rural Police Station againstthe Petitioners by one lady and the crime for the offences punishableunder Sections 323 324 504 and 506 read with 34 of the IndianPenal Code was registered. On 30th January 2013 both thePetitioners were arrested by police of Rural Police Station Beed andthe Petitioners were produced before the Judicial Magistrate FirstClass Beed on the same day. The Judicial Magistrate First Classgranted bail to both the Petitioners and they were released when theyfurnished personal bond and surety bond. It is the contention ofPetitioners that when they came out of the campus of Court samepolice arrested them immediately and they were taken before the on 10 12 2020 on 06 01 3Criminal Writ Petition 5713.odtExecutive Magistrate Beed. 4On 30th January 2013 both the Petitioners were producedbefore the Executive Magistrate Beed and the Executive Magistratemade order against the Petitioners and directed them to give interimbond with two solvent sureties of Rs.25 000 each. On 30th January 2013 the Petitioners moved an application before the ExecutiveMagistrate and requested the Magistrate to permit them to give cashsecurity in place of surety bond and they submitted that they hadapplied for getting solvency certificate but such certificate generally isnot issued immediately. The Executive Magistrate did not allow thisapplication and adjourned the matter to next date. 5It is the contention of Petitioners that there weremalafides in the action taken by police and the Executive Magistratehad also did not pass necessary orders and due to that they wereillegally detained in jail from 30th January 2013 for about six days. Itis the contention of Petitioners that they are not habitual offenders. Itis their contention that Petitioner No.2 was surveying in the military atthe relevant time and Petitioner No.1 was a respected person andresident of same locality and so detention was not necessarily in thechapter case. It is contended that he arrest and detention were illegal on 10 12 2020 on 06 01 4Criminal Writ Petition 5713.odtand there is violation of the fundamental rights of the Petitioners. Thefollowing specific relies are claimed in the present matter:“B)It may kindly be hold and declared that the policehave no power or authority to arrest the petitionersU sec. 107 of Cr.P.C. after getting bail.C)It may kindly be declared and hold that order dated30.1.2013 passed by Executive Magistrate is illegaland violates the fundamental rights of thepetitioners.D)It may kindly be declared and hold that therespondent No.4 illegally detained the petitioners.E)It may kindly be declared and hold that therespondents violated the fundamental rights of thepetitioners therefore the petitioners are entitled toget compensation from the state.F)It may kindly be declared and hold that therespondents no. 4 and 5 violates the fundamentalrights of the petitioners therefore state is liable topay compensation.G)It may kindly be declared and hold that Petitionersare entitled compensation of Rs.5 00 000 eachfrom the state.” on 10 12 2020 on 06 01 5Criminal Writ Petition 5713.odt6The submissions made and copy of FIR dated 28thJanuary 2013 show that incident had allegedly taken place on 22ndJanuary 2013 at about 08:30 pm. A lady aged about 35 years hadgiven FIR against the present two Petitioners and one MahendraTagad who is a brother of Petitioner No.2. She had made allegationsthat these three accused had picked up quarrel with her family on theground that her family had not allowed them to use the bullocks andbullock cart for fetching water. The lady had alleged that duringquarrel Petitioner Shailendra and other Accused Mahendra hadassaulted her with fist blows and kick blows and Petitioner No.1 Arunhad assaulted her with stick. It is her contention in the FIR that shesustained bleeding injury in the incident and she was somehow savedby her family members and neighbours. It is her contention that herhusband was not at home at the relevant time. The contents of FIRshow that both the Petitioners were known to her as they hail from hervillage. 7The contents of FIR and the submissions made in thepresent proceeding do not show that there was previous enmity of thePetitioners with the informant. The FIR was also not givenimmediately. From the contents of FIR and the circumstances it isnot possible to infer that even family of the informant had a feeling on 10 12 2020 on 06 01 6Criminal Writ Petition 5713.odtthat there was possibility of commission of similar offence by thePetitioners and other accused. The crime was registered for theoffences punishable under Sections 324 323 504 506 read with 34of the Indian Penal Code and this crime is bailable. It is not disputedthat the Petitioners were arrested on 30th January 2013 and on thesame day Judicial Magistrate First Class released them on bail. 8In the reply filed by Respondent police head constable who was investigating the aforesaid crime it is contended that theDeputy Superintendent of Police Beed Division had directed thispolice station to take preventive measures against the Petitioners. Itis contended that the direction was given on wireless. Photocopy ofwireless message is also produced. It is the contention of police headconstable Bansi Jaibhaye that when the Petitioners were released onbail by Judicial Magistrate First Class he asked the Petitioners toappear before the Executive Magistrate on the same day and he didnot arrest them. It is contended that on that day report was submittedto Executive Magistrate and the Executive Magistrate directed thePetitioners to give bond of Rs.25 000 with two solvent sureties. It iscontended that as the Petitioners failed to comply this order thematter was adjourned to 5th February 2013 by the ExecutiveMagistrate. on 10 12 2020 on 06 01 7Criminal Writ Petition 5713.odt9The aforesaid circumstances show that even whenbailable offence was registered both the Petitioners were arrestedand they were produced before the Magistrate when they could havebeen released on bail in the police station. The message given by theSub Divisional Police Officer shows that he had directed to takepreventive measure and due to that the police head constable gavereport to Executive Magistrate and it can be said that the report wasgiven after release of Petitioners on bail by the Judicial MagistrateFirst Class. The submissions made and the record show that thepolice station requested the Executive Magistrate to start chapterproceeding under Section 107 of the Code of Criminal Procedure andobtain interim bond from them under Section 116(3) of the Code ofCriminal Procedure. 10On the report given by the police for starting chapterproceeding the Executive Magistrate made order of following naturein Marathi:“The opponents were produced by police headconstable Jaibhaye. The opponents were directedto give personal bond and bond of two sureties ofRs.25 000 by each of them. If the opponents failto furnish bond they are to be taken to jail and they on 10 12 2020 on 06 01 8Criminal Writ Petition 5713.odtare to be kept in jail till next date. The next date isfixed as 5th February 2013.”11There is a copy of application which was given byPetitioners on 30th January 2013 and it can be said that thisapplication was moved after passing of aforesaid order by ExecutiveMagistrate. This application shows that the Petitioners offered to givecash security of aforesaid amount and it was also submitted that twosureties like Umakant Tagad resident of Kumshi District Beed andHarishchandra Raosaheb Nikam were present to execute the bond assurety. It was also written in the application that for getting solvencycertificate in respect of these sureties applications were alreadymoved but it may take some time. On this application the ExecutiveMagistrate made order that the amount was to be accepted on 1stFebruary 2013. There is a copy of another application given for thePetitioners by their Advocate and it is dated 31st January 2013. Thisapplication shows that it was again requested to Executive Magistrateto give time for getting solvency certificate and atleast 2 3 days timewas required for that. On this application the Executive Magistratemade order which is as follows:“Time granted. Release on today.” on 10 12 2020 on 06 01 9Criminal Writ Petition 5713.odtHowever it is the contention of the Petitioners that they weredetained in custody for about six days i.e. till 5th February 2013. 12As the Petitioners have contended that both the arrestand the detention was illegal this Court is discussing the provisions ofthe Criminal Procedure Code. It is already observed that the offencefor which crime was registered is bailable and so they could havebeen released on bail in the police station itself. The provision ofSection 107 of the Code of Criminal Procedure falls in Chapter VIII.The purpose of Chapter VIII is given in the heading of the Chapterand it shows that the provisions are made for security for keeping thepeace and for good behaviuor. The scheme of this Chapter showsthat in different circumstances chapter cases can be started underdifferent sections like Section 107 to 110. The power given underSection 106 of the Code of Criminal Procedure is of different natureand that need not be discussed in the present matter. In the presentmatter there was a proposal to start chapter proceeding underSection 107 of the Code of Criminal Procedure and so this provisionneeds to be considered. The provision runs as under:“107.Security for keeping the peace in othercases.When an Executive Magistrate receivesinformation that any person is likely to commit a on 10 12 2020 on 06 01 10Criminal Writ Petition 5713.odtbreach of the peace or disturb the public tranquillityor to do any wrongful act that may probablyoccasion a breach of the peace or disturb thepublic tranquillity and is of opinion that there issufficient ground for proceeding he may in themanner hereinafter provided require such personto show cause why he should not be ordered toexecute a bond with or without sureties for keepingthe peace for such period not exceeding one year as the Magistrate thinks fit.”13The provision of Section 107(1) of the Code of CriminalProcedure shows that there are conditions for starting the proceedingunder this section and the conditions are as under:(i)That there was information against the opponent thathe was likely to commit breach of peace or he waslikely to disturb the public tranquillity or the opponentwas likely to do any wrongful act which may occasionbreach of peace or disturbance of public tranquillityof the Code of Criminal Procedure of aforesaid nature.The record produced and the reply of the police head constable doesnot show that before passing such order any order of show cause asrequired under Section 111 of the Code of Criminal Procedure wasmade. Section 111 of the Code of Criminal Procedure runs as under: on 10 12 2020 on 06 01 12Criminal Writ Petition 5713.odt“111. Order to be made. When a Magistrate actingunder section 107 section 108 section 109 orsection 110 deems it necessary to require anyperson to show cause under such section he shallmake an order in writing setting forth thesubstance of the information received the amountof the bond to be executed the term for which it isto be in force and the number character and classof suretiesrequired.”15It is contended by the police head constable in the replythat he had only directed the Petitioners to appear before theExecutive Magistrate when they were released on bail by the JudicialMagistrate First Class. This contention appears to be incorrect andfalse. The aforesaid order of interim bond made by ExecutiveMagistrate shows that the Petitioners were brought before theExecutive Magistrate by police head constable Jaibhaye. Thiscircumstance supports the contention of the Petitioners thatimmediately after their release on bail by the Judicial Magistrate FirstClass they were taken in custody by police and they were producedbefore the Executive Magistrate. Though there is such clearprobability there is no record to show their formal arrest under anyprovision of law after they were released by the Judicial MagistrateFirst Class in aforesaid crime. on 10 12 2020 on 06 01 13Criminal Writ Petition 5713.odt16Even if the contention of police head constable Jaibhayeis accepted as it is that he had directed the Petitioners to appearbefore the Executive Magistrate he could not have done it in view ofthe provisions of Chapter VIII. Only after passing of some order underSection 107 read with Section 111 of the Code of Criminal Procedure the opponents can be directed to appear before the ExecutiveMagistrate if they are not arrested under any provision of law. 17The provision of Section 113 of the Code of CriminalProcedure shows that the Executive Magistrate can issue summonsor warrant for appearance of opponents to answer the show causenotice which is required to be issued under Section 111 of the Codeof Criminal Procedure. The provision of Section 113 of the Code ofCriminal Procedure needs to be read with the provision of Section 116of the Code of Criminal Procedure. Relevant portion of Section 116 ofthe Code of Criminal Procedure is as under:“116.Inquiry as to truth of information.Whenan order under section 111 has been read orexplained under section 112 to a person present inCourt or when any person appears or is broughtbefore a Magistrate in compliance with or inexecution of a summons or warrant issued under on 10 12 2020 on 06 01 14Criminal Writ Petition 5713.odtsection 113 the Magistrate shall proceed to inquireinto the truth of the information upon which actionhas been taken and to take such further evidenceas may appear necessary.(2)…(3)After the commencement and beforethe completion of the inquiry under sub sectionthe Magistrate if he considers that immediatemeasures are necessary for the prevention of abreach of the peace or disturbance of the publictranquillity or the commission of any offence or forthe public safety may for reasons to be recordedin writing direct the person in respect of whom theorder under section 111 has been made to executea bond with or without sureties for keeping thepeace or maintaining good behaviour until theconclusion of the inquiry and may detain him incustody until such bond is executed or in default ofexecution until the inquiry is concluded:Provided thatno person against whom proceedings arenot being taken under section 108 section 109 orsection 110 shall be directed to execute a bond formaintaining good behaviourthe conditions of such bond whether asto the amount thereof or as to the provision ofsureties or the number thereof or the pecuniaryextent of their liability shall not be more onerousthan those specified in the order under section111.” on 10 12 2020 on 06 01 15Criminal Writ Petition 5713.odt18The provision of Section 113 and relevant portion ofprovision of Section 116 of the Code of Criminal Procedure quotedabove shows that when chapter proceeding is started under Section107 of the Code of Criminal Procedure the Executive Magistrate isnot expected to issue warrant. He can issue only summons or noticeand send show cause notice under Section 111 of the Code ofCriminal Procedure to opponents. The grounds given in Section 107of the Code of Criminal Procedure are not that serious and they donot show that there is urgency and they need to be arrested first.Ordinarily for proposing chapter case under Section 108 109 and 110of the Code of Criminal Procedure police use provision of Section151 of the Code of Criminal Procedure and they make arrest and thenthey produce the accused alongwith proposal of chapter case beforethe Executive Magistrate. The provision of Section 151 of the Code ofCriminal Procedure enables police to arrest the opponent as thepolice form opinion that there is a possibility of commission ofcognizable offence by the opponent. There is no such possibilitywhen chapter case is to be started under Section 107 of the Code ofCriminal Procedure. Thus arrest before issuing show cause noticeunder Section 111 of the Code of Criminal Procedure when chapter on 10 12 2020 on 06 01 16Criminal Writ Petition 5713.odtproceeding is to be filed under Section 107 of the Code of CriminalProcedure is not permissible and it is illegal. Similarly in view of theprovision of Section 116(3) of the Code of Criminal Procedure interimbond cannot be obtained from the opponent when chapter proceedingis started against him under Section 107 of the Code of CriminalProcedure. 19The aforesaid discussion shows that the order ofExecutive Magistrate asking the present Petitioners to execute interimbond of aforesaid nature is illegal. The bond was involving onerouscondition two sureties having solvency certificate of Rs.25 000 eachfor each opponent. These circumstances show that there weremalafides and intention of the police was to see that the Petitionersare arrested and they are kept behind bars for few days. The recordand circumstances show that the Executive Magistrate acted as persuch desire of police and he did not apply his mind. The ExecutiveMagistrate ought to have gone through the aforesaid provisions whichshow that he had no such jurisdiction.20In Criminal Writ Petition No.9519 decidedat this Bench on 5th November 2019 this Court has considered the on 10 12 2020 on 06 01 17Criminal Writ Petition 5713.odtlaw developed on illegal arrest and illegal detention. This Court haslaid down on the basis of observations made by the Apex Court thatin such cases the victim is entitled to get compensation. Theobservations are at para 13 and they are as under:“13)In the landmark case of D.K. Basu Vs. Stateof W.B. reported as AIR 1997 SC 610 theSupreme Court has laid down the law in respect ofthe illegal detention and reliefs which can begranted in such cases. In other case of Smt.Nilabati Behera alias Lalita Behera Vs. State ofOrissa and others reported as AIR 1993 SC 1960 the Apex Court has laid down that such actions ofpolice are in blatant violation of human rights. TheApex Court has referred the provisions ofInternational Covenant on Civil and Political Rights 1966 to which India is a party. The Apex Court haslaid down that Articles 21 and 226 of Constitution ofIndia make it not only possible but necessary forthe Court to grant compensation in such cases.Even mistake cannot be excused in such cases.This Court is not expected to decided as to whetherthere was the malice. So this Court holds thatcompensation needs to be given to the petitioners.”21Similar observations are there in Criminal Writ PetitionNo.11018 at paras 9 and 10 and they are as under: on 10 12 2020 on 06 01 18Criminal Writ Petition 5713.odt“9)Learned counsel for the petitioner placedreliance on the observations made by the ApexCourt in following three cases.(1) Rudul Sah v. State of Bihar(2) Arvinder Singh Bagga v. State of U.P.[AIR 1995 SC 117] andS.Nambi Narayanan v. Siby Mathews[2018 AIR SC 5112].10)In all the three cases the Apex Court hadconsidered the provision of Article 21 of theConstitution of India and had held that in suchcases person who is illegally detained is entitled toget compensation from the State. In the casereported as Ram Dass Ram v. State of Bihar the Supreme Court held that suchdetention would be unjustified. It can be said thatthe authority ought to have acted confidently andthere was nothing in the operative order whichcould have confused the authority. In such casesthe State needs to be made to pay compensationfirst and then the State can be allowed to recoverthe amount from the officer who has committederror or who was found negligent in taking urgentsteps for release of the prisoner.”22In the present matter only because there is a copy oforder dated 31st January 2013 showing that on that day Executive on 10 12 2020 on 06 01 19Criminal Writ Petition 5713.odtMagistrate had given direction to release the opponents and time wasgive to them as prayed this Court holds that the compensation cannotbe on higher side. There is a clear possibility that to the ExecutiveMagistrate there was no proper training. The powers available whichare in Chapter VIII of the Code of Criminal Procedure are investedeither in police officer of higher rank or some revenue officer and asthey have no training when superior police officer issue someinstructions like done in the present matter and orders of the aforesaidnature are passed. In any case it needs to be made known toExecutive Magistrate that he has passed illegal order and he had nojurisdiction to pass such order. Only because he was expected todischarge the duty given under Chapter VIII of the Code of CriminalProcedure he may not be directed to pay compensation. However the State needs to obtain the explanation and fix some kind ofresponsibility in such cases. It is serious mistake committed by theExecutive Magistrate. In the result the following order is passed:O R D E RI.The petition is allowed. II.The Respondents shall pay Rs.50 000 to each Petitioner ascompensation for illegal detention. on 10 12 2020 on 06 01 20Criminal Writ Petition 5713.odtIII.Initially the State Government has to pay thisamount and it is to be done within 45 days fromtoday failing to which the amount will carry interestat the rate of 8% per annum. IV.It is open to the State to fasten responsibility onconcerned police officer and the then ExecutiveMagistrate and recover amount. V.Rule is made absolute in those terms. ndm