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A man with the means to maintain himself cannot deny maintenance to wife and children: High Court of Jammu and Kashmir

Any man who has the means to financially maintain himself cannot deny maintenance to his wife and children upon deserting his wife. This was held by the single member bench of the High Court of Jammu and Kashmir consisting of Justice Vinod Chatterji Koul in the case of Irshad Ahmad Sofi v Afshana Shah [CRM no. 34/2019 IA, no. 01/2019] pronounced on 25th August 2021. The petitioner, Irshad Ahmad Sofi filed the present petition requesting the Court to set aside the order of the Trial Court which granted a monthly maintainance of Rs. 4,000 in addition to the maintenance granted to the child by the sub-court of Sub-Judge, 13th Finance. The petitioner contended that both the Trial Court and the Appellate Court ignored the fact that no maintenance had been prayed for the child and further that the child was not even a party before the Trial Court. The petitioner contended that the amount prescribed by the previous courts was excessive and that it would be unreasonable to direct him to pay such a large amount despite only earning a meagre salary. The court stated that when a man has lived with a woman for a long period of time, even if they have not undergone the legal necessities of a valid marriage, he will be made liable to pay for the woman’s maintenance if he deserts her. It was observed that no man should be allowed to enjoy the benefits of having a wife, without the responsibility towards her and their children. The case of Mohammad Ahmed Khan v Shah Bano Begum & others [1985 (2) SCC 556] was cited by the Court, where the Supreme Court of India declared that the provision of Section 125 of the 1973 Code of Criminal Procedure was completely secular in nature and therefore would apply to all men irrespective of their personal laws.

Irshad Ahmad Sofi Afshana Shah CORAM: HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR CRMC no.34 2019 IA no.01 2019 Reserved on: 09.08.2021 Pronounced on: 25.08.2021 Through: Mr Abu Owais Pandit Advocate Through: Mr T.H.Khawja Advocate HON’BLE MR JUSTICE VINOD CHATTERJI KOUL JUDGE 1. Setting aside of the Order dated 19th September 2018 passed by Forest Magistrate Srinagar passed in a petition under J&K Protection of Women from Domestic Violence Act 2010 as also Order dated 18th January 2019 passed by Additional District Judge Srinagarin Cross Appeals on the grounds made mention of therein. 2. I have heard learned counsel for parties and considered the matter. 3. Learned counsel for petitioner states that impugned order of the Trial Court qua granting interim monthly maintenance of Rs.4 000 in addition to maintenance granted to child by the court of Sub Judge 13th Finance is bad. It is contended that Trial Court has lost sight of proviso to Subsection 2) of Section 12 read with Subsectionof Section 26 where it is duty of the person that he has to inform the court trying application under Domestic Violence Act about any maintenance given to the said person. According 2 CRMC no.34 2019 to him informing the court as regards maintenance already granted to aggrieved person is not just a mere formality but carries a purpose that maintenance granted by one court has to be considered and is to be deducted by other court. 4. Learned counsel for petitioner also avers that both Trial Court as well as Appellate Court have not taken into consideration the fact that no maintenance was prayed for the child nor was minor party before the Trial Court. As has been said by counsel for petitioner both Trial Court as well as Appellate Court have made observations contrary to the law more particularly Subsectionof Section 26 of Domestic Violence Act. 5. It is discernible from the record that on an application preferred by respondent the court of Sub Judge Special Mobile Magistrate Srinagar vide Order dated 13th September 2019 held respondent herein entitled to monthly interim maintenance of Rs.3500 . 6. Another application under Domestic Violence Act had also been preferred by respondent before Trial Court in which order dated 19th September 2018 was passed declining payment of maintenance to respondent herein. However petitioner was directed to pay an amount of Rs.4000 per month to the minor. Against aforesaid order Cross Appeals were preferred. The Appellate Court found that amount of maintenance fixed by Trial Court vis à vis minor was not too excessive. The Appellate Court disallowed appeal of respondent to the extent where respondents 2 to 6were deleted from the array of respondents has been disallowed and Trial Court order to this extent has been maintained. However. The Appeal to the extent where the Trial Court dismissed respondent’s claim for maintenance has been allowed 3 CRMC no.34 2019 and order to this extent has been set aside and Trial Court has been directed to hear the parties afresh in the matter or the Trial Court to ask parties to lead evidence to prove their respective claims. Appeal filed by petitioner to the extent where quantum of monetary relief of Rs.4000 granted in favour of minor child has been rejected and the Trial Court order to this extent has been maintained. Petitioners is aggrieved of both the orders of the Trial Court as well as Appellate Court. 7. Appellate Court while deciding the appeal of both petitioner as well as respondent has given an elaborate comprehensive and lucid judgement. The Trial Court has discussed all the aspects of the matters as were required to be looked into and squared off. The Trial Court has expansively discussed provisions of Domestic Violence Act and has said that aggrieved personis at liberty to pursue any of the legal remedies which are available to her and even if she has filed a petition under Section 488 Cr. P.C. she is not barred from pursuing the remedy under the provisions of Domestic Violence Act inasmuch as Section 26 of the Act provides that in addition to any petition filed under the provisions of Domestic Violence Act an aggrieved person can seek her legal remedy before any other court of competent jurisdiction. The Appellate Court has rightly said that husband or father cannot make excuses in making payment of maintenance to his wife and children. Petitioner cannot make hard to believe contentions in paying maintenance to his wife and child. 8. It may be mentioned here that if a person notwithstanding having sufficient means neglects or refuses to maintain his wife his minor child he can be directed by a Magistrate of a first class to make monthly allowance for 4 CRMC no.34 2019 maintenance of his wife or child at such monthly rate as such Magistrate thinks fit and to pay the same to such person as the Magistrate may from time to time direct. Section 488 of the Code of Criminal Procedure which is pari materia to Section 125 of the Code of Criminal Procedureis one of the most invoked and discussed provisions of the Code. It provides that any person who has sufficient means to maintain himself cannot deny maintenance to his wife and children. The object is to prevent vagrancy and destitution. It provides a speedy remedy for supply of food clothing and shelter to deserted wife. The term ‘wife’ in Section 125 of the Code of Criminal Procedure includes a woman who has been divorced by a husband or who has obtained a divorce from her husband and has not remarried. The woman not having the legal status of a wife is thus brought within the inclusive definition of the term ‘wife’ consistent with the objective. Thus in those cases where a man who lived with a woman for a long time and even though they may not have undergone legal necessities of a valid marriage should be made liable to pay the woman maintenance if he deserts her. The man should not be allowed to benefit from the legal loopholes by enjoying the advantages of a de facto marriage without undertaking the duties and obligations. Any other interpretation would lead the woman to vagrancy and destitution which the provision of maintenance in Section 125 is meant to prevent. 9. It is apropos to supplement in the above milieu that the Committee on Reforms of Criminal Justice System headed by Dr. Justice V. S. Malimath in its report of 2003 opined that evidence regarding a man and woman living together for a reasonably long period should be sufficient to draw the 5 CRMC no.34 2019 presumption that the marriage was performed according to the customary rites of parties. Thus it recommended that the word ‘wife’ in Section 125 Cr.P.C. should be amended to include a woman who was living with the man like his wife for a reasonably long period. The Constitution Bench of the Supreme Court in Mohammad Ahmed Khan v. Shah Bano Begum and others 1985SCC 556 considering the provision of Section 125 of the 1973 Code opined that the said provision is truly secular in character and is different from the personal law of the parties. The Supreme Court further held that such provisions were essentially of a prophylactic character and cut across the barriers of religion and that the liability imposed by Section 125 to maintain close relatives who are indigent is founded upon the individual’s obligation to the society to prevent vagrancy and destitution. 10. In the present case grounds taken in petition on hand do not offer any ground muchless cogent or material one to set aside impugned order. Petitioner cannot deny paying maintenance to his wife and or child. He is otherwise obliged to make payment of maintenance to them. Petition on hand unequivocally reflects and portrays disinclination on the part of petitioner to pay maintenance that has been directed by courts below to be paid by him. Resultantly petition on hand is liable to be dismissed. 11. For all that has been said above the instant petition is dismissed with connected CM(s). Interim direction if any shall stand vacated. Vinod Chatterji Koul) Judge Whether the order is reportable: Yes No. Ajaz Ahmad PS

No court should tune out activities prejudicial to the security of the State or public order, being swayed by passion of mercy.: High Court of Jammu and Kashmir and Ladakh

The basis of detention is satisfaction of the executive of a reasonable probability of likelihood of detenu acting in a manner similar to his past acts and preventing him by detention from doing the same as held by the High Court of Jammu and Kashmir and Ladakh through the learned bench led by Hon’ble Mr Justice Tashi Rabstan in the case of Muntazir Ahmad Bhat Vs. Union Territory of JK & Anr. (WP (Crl) No. 105/2021) The brief facts of the case are that District Magistrate Pulwama has placed one Muntazir Ahmad Bhat under preventive detention with a view to prevent him from acting in any manner prejudicial to the security of the State and has been lodged in Central Jail Kot Balwal Jammu. It is this order, the father of the detenu is aggrieved of and seeks quashment of the same on the grounds taken in the petition in hand. Case set up by the petitioner is that the detenu was arrested and detained under Section 8 of the J&K Public Safety Act, 1978 on a false and flimsy grounds without any justification in terms of the impugned detention order. It is also contended that the grounds of detention are vague and mere assertions of the detaining authority and no prudent man can make an effective representation against these allegations. Further it is contended that the detenu has not been provided the material/documents relied upon by the detaining authority so as to make an effective representation before the detaining authority. Counter affidavit has been filed by respondent No. 2 vehemently resisting the petition. After the perusal of the facts and arguments, the Hon’ble Court held, “Observing that the object of preventive detention is not to punish a man for having done something but to intercept and to prevent him from doing so, the Supreme Court in the case of Naresh Kumra Goyal v. Union of India and others, 2005 (8) SCC 276, has held that an order of detention is not a curative or reformative or punitive action, but a preventive action, avowed object of which being to prevent antisocial and subversive elements from imperiling welfare of the country or security of the nation or from disturbing public tranquility or from indulging in antinational activities or smuggling activities or from engaging in illicit traffic in narcotic drugs and psychotropic substances, etc. Preventive detention is devised to afford protection to society. The authorities on the subject have consistently taken the view that preventive detention is devised to afford protection to society. The object is not to punish a man for having done something but to intercept before he does it, and to prevent him from doing so. In the backdrop of foregoing discussion, the petition is shorn of any merit and is, accordingly, dismissed.”

IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH AT SRINAGAR WPNo. 105 2021 Reserved on 09.11.2021 Pronounced on 12.11.2021 Muntazir Ahmad Bhat Through: Mr. G. N. Shaheen Adv. Union Territory of JK & Anr. Through: Mr. Mir Suhail AAG CORAM: HON’BLE MR JUSTICE TASHI RABSTAN JUDGE JUDGMENT District Magistrate Pulwama by order No. 27 DMP PSA 21 dated 12.07.2021 has placed one Muntazir Ahmad Bhat S o Abdul Gani Bhat R o Qasbayar Tehsil Rajpora District Pulwamaunder preventive detention with a view to prevent him from acting in any manner prejudicial to the security of the State and has been lodged in Central Jail Kot Balwal Jammu. It is this order the father of the detenu is aggrieved of and seeks quashment of the same on the grounds taken in the petition in hand. Case set up by the petitioner is that the detenu was arrested and detained under Section 8 of the J&K Public Safety Act 1978 on a false and flimsy grounds without any justification in terms of the impugned detention order. It is also contended that the grounds of detention are vague and mere assertions of the detaining authority and no prudent man can make an effective representation against these allegations. Further it is contended that the detenu has not been provided the material documents relied upon by the detaining authority so as to make an effective representation before the detaining authority. Counter affidavit has been filed by respondent No. 2 vehemently resisting the petition. WPNo.105 2021 Heard learned counsel for the parties and perused the xerox copy of the detention record produced by the learned counsel for the respondents. Prior to adverting to case in hand it would be apt to say that right of personal liberty is most precious right guaranteed under the Constitution. It has been held to be transcendental inalienable and available to a person independent of the Constitution. A person is not to be deprived of his personal liberty except in accordance with procedures established under law and the procedure as laid down in Maneka Gandhi v. Union of India is to be just and fair. The personal liberty may be curtailed where a person faces a criminal charge or is convicted of an offence and sentenced to imprisonment. Where a person is facing trial on a criminal charge and is temporarily deprived of his personal liberty owing to criminal charge framed against him he has an opportunity to defend himself and to be acquitted of the charge in case prosecution fails to bring home his guilt. Where such person is convicted of offence he still has satisfaction of having been given adequate opportunity to contest the charge and also adduce evidence in his defence. However framers of the Constitution have by incorporating Article 22(5) in the Constitution left room for detention of a person without a formal charge and trial and without such person held guilty of an offence and sentenced to imprisonment by a competent court. Its aim and object are to save society from activities that are likely to deprive a large number of people of their right to life and personal liberty. In such a case it would be dangerous for the people at large to wait and watch as by the time ordinary law is set into motion the person having dangerous designs would execute his plans exposing general public to risk and causing colossal damage to life and property. It is for that reason necessary to take preventive measures and prevent a person bent upon to perpetrate mischief from translating his ideas into action. Article 22(5) Constitution of India therefore leaves scope for enactment of preventive detention law. The essential concept of preventive detention is that detention of a person is not to punish him for something he has done but to prevent WPNo.105 2021 him from doing it. The basis of detention is satisfaction of the executive of a reasonable probability of likelihood of detenu acting in a manner similar to his past acts and preventing him by detention from doing the same. The Supreme Court in Haradhan Saha v. State of W.B.3 SCC 198 points out that a criminal conviction on the other hand is for an act already done which can only be possible by a trial and legal evidence. There is no parallel between prosecution in a Court of law and a detention order under the Act. One is a punitive action and the other is a preventive act. In one case a person is punished to prove his guilt and the standard is proof beyond reasonable doubt whereas in preventive detention a man is prevented from doing something which it is necessary for reasons mentioned in the Act to prevent. Acts or activities of individual or a group of individuals prejudicial to the security of the State or public order have magnitude of across the board disfigurement of societies. No court should tune out such activities being swayed by passion of mercy. It is an obligation of the Court to constantly remind itself the right of society is never maltreated or marginalised by doings an individual or set of individuals propagate and carry out. Article 22(5) of the Constitution of India and Section 13 of the J&K Public Safety Act 1978 guarantee safeguard to detenu to be informed as soon as may be of grounds on which order of detention is made which led to subjective satisfaction of detaining authority and also to be afforded earliest opportunity of making representation against order of detention. Detenu is to be furnished with sufficient particulars enabling him to make a representation which on being considered may obtain relief to him. Glance of grounds of detention reveals that the detenu met with various terrorists of banned organisation called as Jaish e Mohammad under whose influence the detenu developed radical ideology. The said organization has motivated the detenu to work for their unlawful organization and extended all possible logistic support to the terrorists enabling them to carry out the terrorist attack in the area successfully. WPNo.105 2021 The detenu is a close accomplice of active terrorist namely Yasir Ahmad Parray S o Ghulam Mohammad Parray R o Qasbayar Rajpora. The detenu along with the said Yasir Ahmad Parray have purchased a Maruti car in the year 2019 and on the instructions of one terrorist a foreign original namely Junaid Bhat R o Pakistan loaded the said Maruti car with IED and exploded it on the road near Arihal Village of District Pulwama by targeting patrolling vehicle of 44 RR and also indulged in indiscriminate firing upon the said army patrolling party with the motive and intention to kill them resulting into martyrdom of 1 army person and injuries to various army personnel. Accordingly FIR No. 125 2019 under Sections 302 307 RPC 7 27 Arms Act and 4 2015 Expl. Sub. Act was registered. Further FIR No. 54 2019 under Sections 121 IPC 18 20 & 39 UA(P) Act was registered in Police Station Rajpora Pulwama. However in both the FIRs the detenu was released on bail by the competent court but after releasing the detenu he continued to carry out subversive activities in the area. The said fact is corroborated that on 11th May 2020 on detenue’s instance 1 HE 36 hand grenade was recovered from the compound of detenue’s house situated at Qasbayar. In this regard FIR No. 29 2020 under Sections 7 25 of Arms Act and 23 UA(P) Act was registered. Again the detenu has been released by the court. Thereafter the detenu was apprehended just to prevent him from acting in any manner prejudicial to the security of the State. Further there is a likelihood of his recycling into subversive activities. As such it will make difficult for the security forces to maintain the public order and safeguard the security of the State and to return the normalcy in the valley. 10. The record so produced by the State reveals that in terms of Order dated 12th July 2021 a notice was issued under Section 13 of the J&K Public Safety Act whereby the detenu was informed to make a representation to the detaining authority as also to the Government against his detention order if the detenu so desires. In compliance to District Magistrates detention order the warrant was executed by Executing Officer namely SI Sonaullah No. 03 T EXK No. 832114 of DPL Pulwama who has executed and took custody of the detenu on 15th July WPNo.105 2021 2021 by executing the PSA Warrants at Central Jail Kot Balwal Jail Jammu whereby the detenu was handed over total 41 leaves on 15.07.2021 against a proper receipt in which the detention order notice of detention ground of detention dossier of detention copies of FIR Statement of witnesses and all other relevant material relied in the grounds of detention totalling 41 leaves have been supplied. Further the execution report reveals that the detenu can make a representation to the Government as well as to the detaining authority. It is also revealed that the detention warrant and grounds of detention has been read over and explained to the detenu in Urdu Kashmiri language which the detenu understood fully and signatures of detenu was also obtained which has been marked as Mark A in the Execution Report. Thus the contention of the petitioner for not supplying the material is not 11. Germane to mention here that if one looks at the acts the J&K Public Safety Act 1978 is designed for is to prevent they are all these acts that are prejudicial to security of the State or maintenance of public order. The acts indulged in by persons who act in concert with other persons and quite often such activity has national level ramifications. These acts are preceded by a good amount of planning and organisation by the set of people fascinated in tumultuousness. They are not like ordinary law and order crimes. If however in any given case a single act is found to be not sufficient to sustain the order of detention that may well be quashed but it cannot be stated as a principle that one single act cannot constitute the basis for detention. On the contrary it does. In other words it is not necessary that there should be multiplicity of grounds for making or sustaining an order of detention. The said views and principles have been reiterated by the Supreme Court in Gautam Jain v. Union of India another AIR 2017 SC 230. In the above milieu it would be apt to refer to the observations made by the Constitution Bench of the Supreme Court in the case of The State of Bombay v. Atma Ram Shridhar Vaidya AIR 1951 SC 157. The WPNo.105 2021 paragraph 5 of the judgement lays law on the point which is profitable to be reproduced infra: “5. It has to be borne in mind that the legislation in question is not an emergency legislation. The powers of preventive detention under this Act of 1950 are in addition to those contained in the Criminal Procedure Code where preventive detention is followed by an inquiry or trial. By its very nature preventive detention is aimed at preventing the commission of an offence or preventing the detained person from achieving a certain end. The authority making the order therefore cannot always be in possession of full detailed information when it passes the order and the information in its possession may fall far short of legal proof of any specific offence although it may be indicative of a strong probability of the impending commission of a prejudicial act. Section a of the Preventive Detention Act therefore requires that the Central Government or the State Government must be satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial tothe defence of India the relations of India with foreign powers or the security of India orthe security of the State or the maintenance of public order or the maintenance of supplies and services essential to the community ......... it is necessary So to do make an order directing that such person be detained. According to the wording of section 3 therefore before the Government can pass an order of preventive detention it must be satisfied with respect to the individual person that his activities are directed against one or other of the three objects mentioned in the section and that the detaining authority was satisfied that it was necessary to prevent him from acting in such a manner. The wording of the section thus clearly shows that it is the satisfaction of the Central Government or the State Government on the point which alone is necessary to be established. It is significant that while the objects intended to be defeated are mentioned the different methods acts or omissions by which that can be done are not mentioned as it is not humanly possible to give such an exhaustive list. The satisfaction of the Government however must be based on some grounds. There can be no satisfaction if there are no grounds for the same. There may be a divergence of opinion as to whether certain grounds are sufficient to bring about the satisfaction required by the section. One person may think one way another the other way. If therefore the grounds on which it is stated that the Central Government or the State Government was satisfied are such as a rational human being can consider connected in some manner with the objects which were to be prevented from being attained the question of satisfaction except on the ground of mala fides WPNo.105 2021 cannot be challenged in a court. Whether in a particular case the grounds are sufficient or not according to the opinion of any person or body other than the Central Government or the State Government is ruled out by the wording of the section. It is not for the court to sit in the place of the Central Government or the State Government and try to deter mine if it would have come to the same conclusion as the Central or the State Government. As has been generally observed this is a matter for the subjective decision of the Government and that cannot be substituted by an objective test in a court of law. Such detention orders are passed on information and materials which may not be strictly admissible as evidence under the Evidence Act in a court but which the law taking into consideration the needs and exigencies of administration has allowed to be considered sufficient for the subjective decision of the Government.” In the light of the aforesaid position of law settled by the Six Judge Constitution Bench way back in the year 1951 the scope of looking into the manner in which the subjective satisfaction is arrived at by the detaining authority is limited. This Court while examining the material which is made basis of subjective satisfaction of the detaining authority would not act as a court of appeal and find fault with the satisfaction on the ground that on the basis of the material before detaining authority another view was possible. 14. The court do not even go into the questions whether the facts mentioned in the grounds of detention are correct or false. The reason for the rule is that to decide this evidence may have to be taken by the courts and that it is not the policy of the law of preventive detention. This matter lies within the competence of the advisory board. 15. Those who are responsible for national security or for maintenance of public order must be the sole judges of what the national security public order or security of the State requires. Preventive detention is devised to afford protection to society. The object is not to punish a man for having done something but to intercept before he does it and to prevent him from doing. Justification for such detention is suspicion or reasonable probability and not criminal conviction which can only be warranted by legal evidence. Thus any preventive measures even if WPNo.105 2021 they involve some restraint or hardship upon individuals as said by the Supreme Court in Ashok Kumar v. Delhi Administration and others AIR 1982 SC 1143 do not partake in any way of the nature of punishment. There is no reason why the Executive cannot take recourse to its power of preventive detention in those cases where the Court is genuinely satisfied that no prosecution could possibly succeed against detenu because he is a dangerous person who has overawed witnesses or against whom no one is prepared to depose. 16. Besides what has been discussed above extremism radicalism terrorism have become the most worrying features of the contemporary life. Though violent behaviour is not new the contemporary extremism radicalism terrorism in its full incarnation have obtained a different character and poses extraordinary threats to civilized world. The basic edifices of a modern State like democracy State security public order rule of law sovereignty and integrity basic human rights etcetera are under attack of such extreme radical and terror acts. Though phenomenon of extremism radicalism fanatism or terrorism is complex a terrorist or such like an act is easily identifiable when it does occur. The core meaning of the term is clear even if its exact frontiers are not. 17. The threat that we are facing is now on an unprecedented global scale. Terrorism has become a global threat with global effects. It has become a challenge to the whole community of civilized nations. Terrorist activities in one country may take on a transnational character carrying out attacks across one border receiving funding from private parties or a government across another and procuring arms from multiple sources. Terrorism in a single country can readily become a threat to regional peace and security owing to its spill over ramifications. It is therefore difficult in the present context to draw sharp distinctions between domestic and international terrorism. Many happenings in recent past caused international community to focus on the issue of terrorism with renewed intensity. Anti fanatism anti extremism antiterrorism activities in the global level are mainly carried out through bilateral and multilateral cooperation among nations. It has in such WPNo.105 2021 circumstances become our collective obligation to save and protect the State and its subjects from uncertainty melancholy and turmoil. 18. Personal liberty is one of the most cherished freedoms perhaps more important than the other freedoms guaranteed under the Constitution. It was for this reason that the Founding Fathers enacted the safeguards in Article 22 in the Constitution so as to limit the power of the State to detain a person without trial which may otherwise pass the test of Article 21 by humanising the harsh authority over individual liberty. In a democracy governed by the rule of law the drastic power to detain a person without trial for security of the State and or maintenance of public order must be strictly construed. However where individual liberty comes into conflict with an interest of the security of the State or maintenance of public order then the liberty of the individual must give way to the larger interest of the nation. These observations have been made by the Supreme Court in The Secretary to Government Publicand another v. Nabila and another 2015 12) SCC 127. 19. The satisfaction of detaining authority that detenu is already in custody and he is likely to be released on bail and on being released he is likely to indulge in the same prejudicial activities is the subjective satisfaction of the detaining authority. The Supreme Court in the case of Senthamilselvi v. State of T.N. and another 2006SCC 676 has held that satisfaction of detaining authority coming to conclusion that there is likelihood of detenu being released on bail is “subjective satisfaction” based on materials and normally subjective satisfaction is not to be interfered with. 20. Observing that the object of preventive detention is not to punish a man for having done something but to intercept and to prevent him from doing so the Supreme Court in the case of Naresh Kumra Goyal v. Union of India and others 2005SCC 276 and ingeminated in the judgement dated 18th July 2019 rendered by the Supreme Court in Criminal Appeal No.10619 arising out of SLPno.5459 of 2019 titled Union of India and another v. Dimple Happy Dhakad has WPNo.105 2021 held that an order of detention is not a curative or reformative or punitive action but a preventive action avowed object of which being to prevent antisocial and subversive elements from imperilling welfare of the country or security of the nation or from disturbing public tranquillity or from indulging in antinational activities or smuggling activities or from engaging in illicit traffic in narcotic drugs and psychotropic substances etc. Preventive detention is devised to afford protection to society. The authorities on the subject have consistently taken the view that preventive detention is devised to afford protection to society. The object is not to punish a man for having done something but to intercept before he does it and to prevent him from doing so. 21. The judgment of the Supreme Court relied upon by the learned counsel for the petitioner in the case reported as AIR 2021 SC 3656 Banka Sneha Sheela vs. State of Telengana & Ors is not applicable in the present case. In the backdrop of foregoing discussion the petition is shorn of any merit and is accordingly dismissed. 23. Xerox copy of the detention record be returned to learned counsel for respondents. SRINAGAR 12.11.2021 Altaf JUDGE Whether the order is reportable WPNo.105 2021

Section 37 of NDPS Act not a bar to grant bail for “small quantity” of contraband recovered from a person: The High Court of Delhi

The bar of Section 37 of NDPS Act is not applicable in cases where the quantity of contraband recovered from a person falls under the category of “small quantity” and such an offense is henceforth bailable but should not influence the prosecution case during the trial. A single judge bench of the Delhi High Court comprising Justice Suresh Kumar Kait in the case of Haresh Rawal v. Narcotics Control Bureau [BAIL APPLN. 1177/2021] on 3rd June 2021 adjudged this matter. Petitioner was aggrieved by orders dated 29.02.2021 and 23.03.2021 passed by the learned trial court, vide which his applications seeking bail had been dismissed. Vide present petition, petitioner sought bail in the present case. The facts of the cases stated that a secret information was received by the NCB regarding a person of a certain description who might be carrying narcotics drugs for the purpose of delivery to a client. A raiding team was sent to the spot who tried to collect independent witness by contacting two/three persons from the public but none agreed by stating their genuine problems. It was observed by the raiding team that a person of similar description as notified in the secret information, wearing yellow sweat shirt was seen handing over a small packet to his client wearing black jacket. At this point of time both of them were apprehended by the NCB Team and they were apprised about their identity, secret information and purpose of visit. During prelimnary enquiries both the accused disclosed their identities. The person wearing yellow sweat shirt accepted that he was carrying charas in his bag which he sold to his clients and that he carried total 47 packets and Rs. 12000/- in his bag which was also investigated by the NCB. Similarly, the petitioner (wearing black jacket) also voluntary disclosed that he came to the spot to purchase charas and he had handed over Rs. 9500/- to the co-accused for one packet of the same. Petitioner was arrested on 19.12.2020 and after 03 days police custody, he was sent in judicial custody on 22.12.2020 and since then he is behind bars. The arguments submitted by the counsel on behalf of the petitioner were that since the alleged recovery was of just one packet containing 10 gm. and hence is covered under “small quantity” and is therefore bailable. He further contended that neither was the petitioner informed of his right to be searched before a gazetted officer or magistrate without serving notice under Section 50 of NDPS Act before the recovery nor is the disclosure statement of petitioner under Section 67 reliable as it was recoded under threat and coercion by NCB officers. Lastly, he established the fact that the packet which the petitioner possessed was not individually checked for being charas and furthermore, the absence of any witness to corroborate the prosecution story stands in favour of the petitioner. On the other hand, it was submitted by the respondent’s counsel that petitioner along with the co accused was involved in sale-purchase of contraband and was apprehended at the spot during the exchange. He also contended that the public persons present at the spot gave genuine reasons not to become witness to the proceedings. Moreover, the mobile data of chats recovered from petitioner reveals that he has been involved in the illegal trafficking of contraband for money for the last few years.

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 28.05.2021 Pronounced on: 03.06.2021 BAIL APPLN. 1177 2021 HARESH RAWAL Through: Mr. Dharmender Rana & ...... Petitioner Ms.Vaishnavi K. Advocates NARCOTICS CONTROL BUREAU ...... Respondent Through: Mr. Subhash Bansal Senior Standing Counsel for NCB with Mr. Shashwat Bansal Advocate HON BLE MR. JUSTICE SURESH KUMAR KAIT The present Petition has been filed seeking bail in the case arising out of C.C. No. VIII 59 DZ 2020 registered at NCB R.K. Puram under Section 8 20(b) 29 of Narcotic Drugs and Psychotropic Substances Act 1985 henceforth referred to as the “NDPS Act”) which is pending trial. Petitioner is aggrieved by orders dated 29.02.2021 and 23.03.2021 passed by the learned trial court vide which his applications seeking bail Bail Appln. 1177 2021 have been dismissed. Vide present petition petitioner is seeking bail in the present case. The brief facts of the present case as noted in the impugned complaint are that on 18.12.2020 a secret information was received that one Nepali National of small built wearing yellow colour clothes will come near Gate No. 1 Metro Station East of Kailash New Delhi between 1800 1900 hours and he might be carrying narcotics drugs for the purpose of delivery of the same to his client. Upon receipt of said information a raiding team was constituted and after collecting seal of Narcotics Control Bureau DZU 3 testing kit IO Kit and other necessary articles used for search and seizure proceedings reached the spot at about 1800 hours. The raiding team tried to join independent witness by contacting two three persons from the public but none agreed by stating their genuine problems. The surveillance mounted near Gate No.l of the metro Station observed that one person wearing yellow colour sweat shirt whose description was matching with the secret information carrying black colour bag on his shoulder came out and met another person wearing black colour jacket. The person who was wearing yellow colour shirt handed over a small packet to the person wearing black colour jacket who in turn gave some amount in cash to him. At this point of Bail Appln. 1177 2021 time both of them were apprehended by the NCB Team and they were apprised about their identity secret information and purpose of visit. During preliminary enquiries the person wearing yellow sweat shirt disclosed his name as Madan Lama r o Nepal and staying at Sant Nagar East of Kailash and second person wearing black colour jacket introduced himself as Haresh Rawal r o Punjabi Bagh New Delhi. Madan Lama accepted that he was carrying charas in his bag which he used to sell to his clients. He opened his bag in which 46 small zip lock polyethene packets and Rs. 12 000 were found. Besides one packet was also found in the possession of Haresh Rawal. Thus total 47 packets were recovered. Haresh Rawalaccepted that he came to the spot to purchase charas from Madan Lama and he had handed over Rs. 9500 to him for the same. small stones. Out of 47 packets recovered 22 packets were containing small disk circular shape substance 09 packets were containing substance in small sticks shape and rest 16 packets were containing substance in the shape of The substance of 22 packets was tested individually and found positive for charas. Since substance of 22 packets was found similar in Bail Appln. 1177 2021 colour texture and shape as well as the fact that same was found positive for charas therefore substance of all 22 packets was collected in a polythene and weighed and it was found to be 215 grams. The said polythene was tied with string and converted in cloth pulanda Mark A. The substance of 9 packets was tested individually and found positive for charas. Since substance of 9 packets was found similar in colour texture and shape as well as the fact that same was found positive for charas therefore substance of all 9 packets was collected in a polythene and found to be 95 grams. The said polythene was tied with string and converted in cloth pulanda Mark B. The substance of 16 packets was tested individually and found positive for charas. Since substance of 16 packets was found similar in colour texture and shape as well as the fact that same was found positive for Charas therefore substance of all 16 packets was collected in a polythene and found to be 165 grams. The said polythene was tied with string and converted in cloth pulanda Mark C. 10. Thereby in total 475 grams charas was recovered from the 47 zip lock polythene packets. Thereafter the black colour bag concealing material the currency notes of Rs.9500 found in the hand of accused Bail Appln. 1177 2021 Madan Lama and Rs. 12 000 found in his bag were all marked sealed and other procedural formalities were completed. 11. During further investigation seizure memos in respect of two mobile phones No. 9871967226 and 9311295909 recovered from accused Madan Lama scooty bearing No. DL6SAP8OS0 and two mobile phones Nos. 8178012030 & 9582741767 recovered from Haresh Rawal were prepared. 12. Thereafter notice under Section 67 of NDPS Act was issued to Madan Lama and Haresh Rawal. During investigation of the case accused Madan Lama tendered his voluntary statement under Section 67 of NDPS Act wherein he admitted his involvement in drug trafficking and sale purchase of the narcotics drugs. He also disclosed that he came to the spot along with recovered contraband and he sold one packet containing charas to the co accused Haresh Rawat for Rs.9500 and they were apprehended by the NCB officers at the spot. During search and seizure proceedings 475 grams charas and Rs. 21 500 were recovered. Besides he also disclosed about other persons namely Kalpna and Saroj Bhujel who were actively involved with him in illegal trafficking of contraband and provided their mobile numbers. Bail Appln. 1177 2021 13. Similarly present petitioner in his voluntary statement under Section 67 of NDPS Act disclosed that he came to spot to purchase contraband from Madan Lama. He had purchased one packet from Madan Lama and given Rs. 9500 to him as the sale consideration of the contraband. He further disclosed that during search and seizure proceedings 475 grams heroin and Rs. 21 500 were recovered. 14. Petitioner was arrested on 19.12.2020 and after 03 days police custody he was sent in judicial custody on 22.12.2020 and since then he is behind bars. 15. Learned counsel for the petitioner submitted that the alleged recovery from the possession of petitioner is one packet containing 10 gm. of contraband and therefore it is covered under ‘small quantity’ of NDPS Act and so there is no embargo under Section 37 of NDPS Act to release petitioner on bail. 16. Further submitted by learned counsel for petitioner that the alleged recovery has been made without informing petitioner of his right to be searched before Gazetted Officer or Magistrate and without serving notice under Section 50 of NDPS Act. Further urged that the disclosure statement of petitioner under Section 67 of NDPS Act was recorded under threat and Bail Appln. 1177 2021 coercion by NCB officials to which he had retracted on the first available opportunity and so it has not sanctity. 17. Learned counsel also submitted that the alleged recovery of 01 packet from petitioner was not separately weighed or sampled and was rather mixed with 46 packets recovered from the bag of co accused prior to drawl of samples for chemical analysis. Therefore it cannot be ascertained that the packet allegedly recovered from the possession of the petitioner contained narcotic substance i.e. charas and further since samples were drawn after more than 50 days of the alleged recovery it is in violation of procedure laid under NCB Standing Order 1 88 and Government of India Ministry of Finance Standing Order 1989 19 and Section 52A of NDPS Act. It was next submitted by learned petitioner’s counsel that there are no public witnesses to corroborate the prosecution story and that the chats produced by the NCB are messages exchanged between friends. There is no conclusive evidence of weight and chemical analysis of the contraband recovered and also that ‘small quantity’ of charas allegedly recovered cannot be meant for further sale. 19. Lastly it was submitted by learned counsel for petitioner that learned trial court in order dated 23.03.2021 while dismissing petitioner’s second Bail Appln. 1177 2021 bail application has observed that transaction was still in process and therefore it cannot be inferred that the case against the petitioner is only for one packet however the said observation cannot sustain in view of the fact that as per story put fourth by NCB the transaction was complete and apart from Rs.9 500 which he had allegedly handed over to the co accused Rs.910 were also recovered in his personal search. Thus this petition deserves to be allowed and petitioner be released on bail. 20. On the other hand learned Standing Counsel for NCB opposed the present petition and submitted that petitioner along with co accused Madan Lama was involved in the sale purchase of contraband and he was apprehended at the spot while exchanging charas for money and in total 475 gm. of charas was recovered from accused persons. The petitioner in his statement recorded under Section 67 of NDPS Act on 19.12.2020 revealed his intention to purchase 07 packets from co accused and had paid Rs.9 500 to him for the same. 21. Learned Standing Counsel next submitted that the public persons present at the spot gave genuine reasons not to become witness to the proceedings. Moreover the mobile data of chats recovered from petitioner reveals that he has been involved in the illegal trafficking of contraband for Bail Appln. 1177 2021 money for the last few years. 22. Learned Standing Counsel also submitted that the trial court has rightly dismissed petitioner’s bail application twice and since petitioner has admittedly committed grave offence he has no case on merits and this petition deserves to be dismissed. 23. The contentions raised by both the sides were heard at length and the material placed on record has been carefully perused. In the present case 46 small zip lock polythene packets containing contraband were recovered from the bag of co accused Madan Lama and 01 packet was recovered in possession of present petitioner. In total 475 gm. contraband heroin was recovered in this case. 25. Petitioner has claimed that prior to search and seizure proceedings he was not served with Notice under Section 50 of the NDPS Act. On the other hand stand of NCB is that personal search of accused was not carried out as 01 packet containing contraband recovered from petitioner was in his hands while exchanging it for money and the remaining 46 packets were recovered from the bag of co accused and therefore notice under Section 50 of the Act was not required to be given. This has so been observed by the court below while dismissing petitioner’s bail application. Further the evidentiary value Bail Appln. 1177 2021 of petitioner’s statement recorded under Section 67 of the Act cannot be pre judged at this stage. Moreover question regarding call detail and chats will be also tested during trial. 26. Consequently without going into the meris of the prosecution case at this stage what is required to be seen is whether on the face of material placed on record a case for grant or refusal of bail is made out. In the present case it is not disputed that one packet recovered in the hands of petitioner contained 10 gm. of contraband which falls within the category of ‘small quantity’. Thus the prima facie role attributed to the petitioner in the present case appears to be that he had purchased one packet containing 10 gm. charas which essentially is ‘small quantity’. 28. A Division Bench of this Court in Minni Khadim Ali Khun Vs. State NCT of Delhi 2012 SCC OnLine Del 2657 has dealt with the aspect of grant of bail in case of recovery of ‘small quantity’ of contraband and held that where the recovered contraband is ‘small quantity’ the offence is bailable. 29. The substance recovered in this case is not of commercial quantity. Thus the bar of Section 37 of NDPS Act is not applicable. Moreover petitioner is in judicial custody since 19.12.2020. Charge sheet in this case Bail Appln. 1177 2021 has been filed but Charge is yet to be framed and trial will take substantial time. Accordingly this Court is of the considered opinion that petitioner deserves to be released on bail. 30. Consequently without commenting on the merits of the case the petitioner is directed to be released on bail forthwith upon his furnishing personal bond in the sum of Rs.25 000 with one surety in the like amount to the satisfaction of the Trial Court Duty Magistrate while making it clear that any observation made herein shall not influence the prosecution case during trial. 31. The petitioner shall not directly or indirectly influence any witness and shall appear before the trial court as and when directed. 32. A copy of this order be transmitted to the Trial Court and Jail Superintendent concerned for information and compliance. JUDGE JUNE 03 2021 Bail Appln. 1177 2021

Power to issue notification under Section 48(1) of The Land Acquisition Act includes power to rescind: Supreme Court of India

The essence of an order which is quasi­judicial in nature is that it is preceded by an opportunity of hearing to the party affected thereby. Therefore, we reject the argument that a Notification under Section 48(1) is a quasi­judicial order. As a consequence, we reject the argument that the Government cannot fall back upon Section 21 of the General Clauses Act to rescind an order under Section 48(1). Such an observation was made by the Hon’ble Supreme Court before Hon’ble Justice Hemant Gupta & Hon’ble Justice V. Ramasubramanian in the matter of U.P. AVAS EVAM VIKAS PARISHAD THROUGH  HOUSING COMMISSIONER & ANR. vs NOOR MOHAMMAD & ORS. [Civil Appeal No.8083 of 2011]. The facts of the case were that a Notification dated 25.07.1964   was issued by the   State Government under Section 36  of the   United   Provinces   Town Improvement Act, 1919  for the acquisition of land of a total extent of acre 1.85 in Village Mirzapur, Tehsil­Sadar, District Gorakhpur for the public purpose of providing housing/residential accommodation. From the year 1983, the landowners made attempts to get the lands released from acquisition, but fortune fluctuated in a see­saw battle. Eventually, by a Notification dated 7.04.2003 issued in exercise of the powers conferred by Section 49(1) of the U.P. Avas Evam Vikas Parishad Adhiniyam, 1965 read with Section 48(1) and 49(1) of the Land Acquisition Act, 1894, the land was exempt from acquisition. But within a couple of years, the Government issued another notification dated 15.09.2005 canceling the notification dated 07.04.2003 on the ground that the landowners had played fraud by making false representations while seeking the release of the land. Aggrieved the original landowners preferred two writ petitions before Division Bench of the High Court who allowed both the writs and held that once the acquired land is released from acquisition, by way of Notification, the Government can reclaim the land only by initiating a fresh process of acquisition. Aggrieved by the said order, the Housing and Development Authority has come up with the present appeals. The Hon’ble Supreme Court observed that while a Notification for acquisition issued under Section 4(1) of the Land   Acquisition   Act seeks to take away an individual’s right to property, a Notification under Section 48(1) is actually the reverse or opposite. It confers a benefit upon an individual and hence it is not supposed to be preceded by any enquiry. The essence of an order which is quasi­judicial in nature is that it is preceded by an opportunity of hearing to the party affected thereby. A notification under Section 48(1) does not warrant any notice or opportunity of hearing, to the original landowners. If at all any person will be aggrieved by the notification under Section 48(1), it will be the beneficiary of the acquisition, which in this case is the Parishad and not the landowners. Therefore, we can understand if the Parishad makes out a grievance that their rights were taken away by the notification under Section 48(1) especially after the land vested in them. Therefore, the argument that the notification under section 48(1) is quasi-judicial in nature can be ruled out. Additionally, the Hon’ble Supreme Court observed that the first Notification dated 7.04.2003 was secured by the respondents by false representations and by playing fraud. When the respondents wanted to ward off the acquisition, they claimed that there were cemeteries of their forefathers, but after the first notification was issued, they started selling the land to third parties, who cannot and do not share the same religious sentiments with the respondents. The enquiry conducted by the Housing Commissioner has revealed that the land mafia has taken over the land. It is trite to point out that an order secured by fraud and misrepresentation will not confer any vested right and that, therefore, the landowners cannot pitch their claim either on the basis of vesting or on the basis of Article 300A.  Finally, the Hon’ble Supreme Court rejected all the contentions of the original landowners and allowed the present appeal. Click Here To Read The Judgment. Judgment Reviewed by: Rohan Kumar Thakur The facts of the case were that a Notification dated 25.07.1964   was issued by the   State Government under Section 36  of the   United   Provinces   Town Improvement Act, 1919  for the acquisition of land of a total extent of acre 1.85 in Village Mirzapur, Tehsil­Sadar, District Gorakhpur for the public purpose of providing housing/residential accommodation. From the year 1983, the landowners made attempts to get the lands released from acquisition, but fortune fluctuated in a see­saw battle. Eventually, by a Notification dated 7.04.2003 issued in exercise of the powers conferred by Section 49(1) of the U.P. Avas Evam Vikas Parishad Adhiniyam, 1965 read with Section 48(1) and 49(1) of the Land Acquisition Act, 1894, the land was exempt from acquisition. But within a couple of years, the Government issued another notification dated 15.09.2005 canceling the notification dated 07.04.2003 on the ground that the landowners had played fraud by making false representations while seeking the release of the land. Aggrieved the original landowners preferred two writ petitions before Division Bench of the High Court who allowed both the writs and held that once the acquired land is released from acquisition, by way of Notification, the Government can reclaim the land only by initiating a fresh process of acquisition. Aggrieved by the said order, the Housing and Development Authority has come up with the present appeals. The Hon’ble Supreme Court observed that while a Notification for acquisition issued under Section 4(1) of the Land   Acquisition   Act seeks to take away an individual’s right to property, a Notification under Section 48(1) is actually the reverse or opposite. It confers a benefit upon an individual and hence it is not supposed to be preceded by any enquiry. The essence of an order which is quasi­judicial in nature is that it is preceded by an opportunity of hearing to the party affected thereby. A notification under Section 48(1) does not warrant any notice or opportunity of hearing, to the original landowners. If at all any person will be aggrieved by the notification under Section 48(1), it will be the beneficiary of the acquisition, which in this case is the Parishad and not the landowners. Therefore, we can understand if the Parishad makes out a grievance that their rights were taken away by the notification under Section 48(1) especially after the land vested in them. Therefore, the argument that the notification under section 48(1) is quasi-judicial in nature can be ruled out. Additionally, the Hon’ble Supreme Court observed that the first Notification dated 7.04.2003 was secured by the respondents by false representations and by playing fraud. When the respondents wanted to ward off the acquisition, they claimed that there were cemeteries of their forefathers, but after the first notification was issued, they started selling the land to third parties, who cannot and do not share the same religious sentiments with the respondents. The enquiry conducted by the Housing Commissioner has revealed that the land mafia has taken over the land. It is trite to point out that an order secured by fraud and misrepresentation will not confer any vested right and that, therefore, the landowners cannot pitch their claim either on the basis of vesting or on the basis of Article 300A.  Finally, the Hon’ble Supreme Court rejected all the contentions of the original landowners and allowed the present appeal. Click Here To Read The Judgment. Judgment Reviewed by: Rohan Kumar Thakur The Hon’ble Supreme Court observed that while a Notification for acquisition issued under Section 4(1) of the Land   Acquisition   Act seeks to take away an individual’s right to property, a Notification under Section 48(1) is actually the reverse or opposite. It confers a benefit upon an individual and hence it is not supposed to be preceded by any enquiry. The essence of an order which is quasi­judicial in nature is that it is preceded by an opportunity of hearing to the party affected thereby. A notification under Section 48(1) does not warrant any notice or opportunity of hearing, to the original landowners. If at all any person will be aggrieved by the notification under Section 48(1), it will be the beneficiary of the acquisition, which in this case is the Parishad and not the landowners. Therefore, we can understand if the Parishad makes out a grievance that their rights were taken away by the notification under Section 48(1) especially after the land vested in them. Therefore, the argument that the notification under section 48(1) is quasi-judicial in nature can be ruled out. Additionally, the Hon’ble Supreme Court observed that the first Notification dated 7.04.2003 was secured by the respondents by false representations and by playing fraud. When the respondents wanted to ward off the acquisition, they claimed that there were cemeteries of their forefathers, but after the first notification was issued, they started selling the land to third parties, who cannot and do not share the same religious sentiments with the respondents. The enquiry conducted by the Housing Commissioner has revealed that the land mafia has taken over the land. It is trite to point out that an order secured by fraud and misrepresentation will not confer any vested right and that, therefore, the landowners cannot pitch their claim either on the basis of vesting or on the basis of Article 300A.  Finally, the Hon’ble Supreme Court rejected all the contentions of the original landowners and allowed the present appeal. Click Here To Read The Judgment. Judgment Reviewed by: Rohan Kumar Thakur Additionally, the Hon’ble Supreme Court observed that the first Notification dated 7.04.2003 was secured by the respondents by false representations and by playing fraud. When the respondents wanted to ward off the acquisition, they claimed that there were cemeteries of their forefathers, but after the first notification was issued, they started selling the land to third parties, who cannot and do not share the same religious sentiments with the respondents. The enquiry conducted by the Housing Commissioner has revealed that the land mafia has taken over the land. It is trite to point out that an order secured by fraud and misrepresentation will not confer any vested right and that, therefore, the landowners cannot pitch their claim either on the basis of vesting or on the basis of Article 300A.  Finally, the Hon’ble Supreme Court rejected all the contentions of the original landowners and allowed the present appeal. Click Here To Read The Judgment. Judgment Reviewed by: Rohan Kumar Thakur Finally, the Hon’ble Supreme Court rejected all the contentions of the original landowners and allowed the present appeal.

Judicature at Allahabad setting aside a Notification cancelling a Act 1894 for the release of the land of the respondents herein from 2. We have heard Shri Vishwajit Singh learned counsel appearing for A Notification dated 25.07.1964 was issued by the State Government under Section 36 of the United Provinces Town acquisition of land of a total extent of acre 1.85 in Village Mirzapur Tehsil­Sadar District Gorakhpur for the public purpose of providing 17.06.1967 under Section 42 of the U.P. Act which is equivalent to Section 6 of the Land Acquisition Act 1894. It appears that the piece bearing plot No.292 2 measuring an extent to 0.028 acres was From the year 1983 the land owners made attempts to get the lands released from acquisition but fortune fluctuated in a see­saw the powers conferred by Section 49(1) of the U.P. Avas Evam Vikas Acquisition Act 1894 the land was exempt from acquisition. But within a couple of years the Government issued another notification dated Challenging the said Notification dated 15.09.2005 the original allowed by Division Bench of the High Court by an Order dated 31.08.2010 holding that once the acquired land is released from acquisition by way of Notification the Government can reclaim the land necessary to bring on record the background in which the original Notification dated 07.04.2003 under Section 48(1) of the Land notification dated 15.09.2005 cancelling the previous one. This Notification dated 15.09.2005 and hence it is reproduced as follows “ Land in Village Mirzapur Betiahtata Gorakhpur was acquired under the provisions of U.P. Town Improvement Act 1919 for the Evam Vikas Parishad for planned development of the area. The State Government issued Notification u s 17 of the Land Acquisition Act 1894 vide no. 93Ka 37­19(1)(16)­66 dated 0.51 Acre) Khasra no. 254Khasra no. 255 1 rakba 0.18 Acre) Khasra no. 255 2Khasra no 291 1 Khasra no. 291 2 w o Late Rojan Shri Noor Mohd. Shri Shafi Mohd. Shri Ramjan New Avas Vikas Colony) Post Office Sadar Dist. Gorakhpur was received by the Government on 23.1.84 by which the applicants brought to the notice of the government that the aforesaid plots house and that they would live there by making houses on the land. After due consideration on the applications received from applicants the government issued G.O. no. 472 37­2­85­3 HB(108) 83 dated 30.01.85 thereby exempting the aforesaid khasras from acquisition with the condition that the landowners issued by the Government whereby cancelling the earlier G.O dated 30.1.85 in which it was specifically mentioned that the layout map of the Yojana may be modified while excluding the orders of the Hon ble High Court after giving serious thoughts to before the Hon ble High Court in which the Hon ble High Court by the applicants from time to time. In their representations the after due consideration Notification no.1049 9­Aa­2­2003­3 HB 257Khasra no. 254Khasra no. 255 1Khasra no. 255 2Acre) Khasra no. 292 1 Khasra no. 292 2 After passing of the Notification it came to the notice of the In view of the complaints inquiry was got conducted from the sought. The Housing Commissioner submitted his inquiry report 0.30 acre) khasra no. 255khasra no. 257 rakba 0.51 acre)} was sold out on 23.4.2003 through b) 5220 sq.ft. land from Khasra no. 255 was sold through 2370 sq.ft. land from Khasra no. 254 was sold through d) 9000 sq.ft. land from Khasra no. 254 and 255 was sold n 16.9.2004 to Smt. Vartika Singh w o Shri Krishna Singh From the above it is evident that the facts placed by the was released from acquisition vide Notification dated 7.4.2003 were misleading and false. The applicants are in the process of selling the land after dividing it in small plots and they neither using the land for earning their livelihood by way of doing vegetation nor for any other purpose. Therefore after due 2003­3 HB 83 dated 7 April 1983 issued in respect of Notification dated 15.09.2005 was that once a Notification is issued under Section 48(1) of the Land Acquisition Act 1894 the land gets released from acquisition and that therefore the only way the State Government could retrieve the land is to initiate the process of acquisition afresh. This reasoning is based upon two premises namely i) that while there is a provision under Section 48(1) of the Land 10. But insofar as the first contention is concerned Section 21 of the “21. Power to issue to include power to add to amend vary or rescind notifications orders rules or bye­laws.­ notifications orders rules or bye­laws is conferred then that subject to the like sanction and conditionsto add to amend vary or rescind any notifications orders rules or bye­ 11. Therefore the power to issue Notification would include a power to rescind the Notification. This position was not contested by the respondents when their attempts to have the land released from acquisition proved unsuccessful on earlier occasions. As a matter of fact on the application presented by the respondents on 28.02.1983 the Government issued a letter dated 30.01.1985 requesting the to the condition that the land owners will not sell the land. This condition was stipulated in view of the fact that the request of the respondent was based on religious sentiments due to the alleged about any cemeteries when the land owners filed objections to the acquisition. In the light of such objections the Government issued proceedings dated 27.06.1985 withdrawing the earlier proposal dated 12. Therefore the land owners filed a writ petition in Civil Government and to the Parishad not to dispossess them. This Writ land owners to file a representation to the Government within one month and directing the State Government to consider the said 13. Pursuant to the said order the land owners made a representation 14. Challenging the Order of rejection dated 21.12.1991 the land said writ petition was dismissed as withdrawn on 9.04.1999 Thereafter a fresh representation was made on 29.05.1999. It was reiterated in the said representation that there are cemeteries and programmes were being conducted in the acquired land. It is on the basis of the said representation that the Notification dated 7.04.2003 15. Therefore it is clear that the land owners were actually playing Notification under Section 48(1) was invited by the land owners by making false representations. The land owners have actually played fraud upon the Government and secured the Notification dated 16. The learned counsel for the respondents­land owners contended that Section 21 of the General Clauses Act does not confer an overarching power on the Government to rescind a notification to property though not a fundamental right is held to be a Constitutional right and a human right and that therefore according to the counsel for the respondents the same cannot be taken away by 17. In support of the aforesaid contention Mr. Anand Varma learned counsel for the respondents relies upon the decision of this Court in Industrial Infrastructure Development Corporation M.P “21. The general power under Section 21 of the General Clauses Act to rescind a notification or order has to be 18. The learned counsel for the respondents also relied upon the 4 SCC 494 decision in H.C. Suman vs. Rehabilitation Ministry Employees Co­ 19. But the decision in Industrial Infrastructure Development the Income Tax Act 1961 which was admittedly a quasi judicial order that “the functions exercisable by CIT under section 12­A are neither legislative nor executive but essentially quasi­judicial in Act does not fall in the category of orders mentioned in Section 21 which would be in the nature of 4 SCC 485 48. Completion of acquisition not compulsory but 3) The provision of Part III of this Act shall apply so far as may be to acquisition. It is an administrative act. Therefore the reliance on the decision in Industrial Infrastructure Development Corporation 21. For the very same reason the decision in H.C.Suman is also of no Lt. Governor which was sought to be withdrawn by the subsequent vested right which was given effect through a notification. Therefore recourse to the general power of rescindment available under the Land Acquisition Act seeks to take away an individual’s right to property a Notification under Section 48(1) is actually the reverse or opposite. It confers benefit upon an individual and hence it is not is quasi­judicial in nature is that it is preceded by an opportunity of under Section 48(1) it will be the beneficiary of the acquisition which in this case is the Parishad and not the land owners. Therefore we can 23. Therefore we reject the argument that a Notification under Section we have to state that the first Notification was secured by the respondents by false representations and by playing fraud. When the issued they started selling the land to third parties who cannot and do already extracted the second Notification dated 15.09.2005 which contains the list of sales made by the land owners. The enquiry conducted by the Housing Commissioner has revealed that the land mafia has taken over the land. It is trite to point out that an order and that therefore the land owners cannot pitch their claim either on Interestingly Sh. Anand Varma learned counsel for the and Ors. vs. State of Maharashtra and Ors.3 in support of his contention that even if the impugned notification is taken to be administrative in nature the same should be preceded by an Associates is actually a double­edged weapon insofar as the Acquisition Act an opportunity had to be given necessarily to the beneficiary. In fact two principles could be culled out from Mutha 14 SCC 304 Associates. They are: that the publication of the Notification under have been preceded by an opportunity of hearing to the beneficiary namely U.P. Avas Evam Vikas Parishad. Therefore the withdrawal of such an illegal notification which was secured by fraud cannot be 27. Therefore in fine all the contentions of the respondents­ land

Delhi High Court upholds the arbitral award in the ITMA Arbitration Matter as the award for extra items was without any evidence or basis

The court upholds the merits of an arbitral award wherein the award for extra items was without any evidence or basis, and decided not to interfere in the same. The case concerning was of ITMA Hotel India Pvt. Ltd. v. M/S AMMTYS Interior (India) Projects Pvt. Ltd [O.M.P. (COMM) 485/2020 and IA Nos. 8660/2020 & 8662/2020] filed under the purview of section 34 of the Arbitration and Conciliation Act, 1996. The above proceeding took place on September 6th 2021, which was presided by a single judge bench of Justice Vibhu Bakhru. The facts of the above cases are as follows. ITMA is a company engaged in providing accommodation services. The respondent, being a company incorporated under the Companies Act, 1956 and, involves the business of construction, interior and decorator’s work. Petitioners through its consultant M/s Apeejay Surrendra Group  invited the respondents for execution of the work described as interior works of banquet, pre-function, banquet entrance lobby at the first floor of the hotel- ‘The Park, Kochi’. The respondent responded to the invitation to tender and thereafter, negotiations were held between the parties at the office of the Consultant. The same culminated in ITMA issuing Work Order no. 137 for executing the “interior works in the banquet hall, pre-function, banquet entrance lobby and male and female washrooms on the first floor of the Park Kochi”. The works were to be completed within a period of four months from the date of receipt of the said Work Order. During the course of execution of the works under Work Order, ITMA issued another work order to the respondent for execution of interior works in the restaurant including all lobbies as well as male and female washrooms located at the twenty-seventh and twenty-eight floor of the hotel. Disputes arose between the parties regarding non-payment of the Running Account Bills (RA Bills) by ITMA under both the Work Orders. In view of the disputes, the respondent invoked the Arbitration Clause of the Agreement. Further, in the arbitration proceedings, the award was given in the favour respondents. Therefore, Petitioner  filed the matter under the Hon’ble Delhi High Court. It was contended by the Petitioners side that the Arbitration Clause under the Work Orders was confined to referring the disputes that arose in respect of the Work Orders and therefore, did not cover any claim for additional works. It was also stated that the said award should be said aside as being contrary to the agreement between petitioners and respondents. Respondents on the other hand, asserted to upheld the award.

IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on: 06.09.2021 O.M.P.485 2020 and IA Nos. 8660 2020 & ITMA HOTELS INDIA PVT LTD. Petitioner M s. AMMTYS INTERIORPROJECTS PVT LTD. ..... Respondents Advocates who appeared in this case: For the Petitioner For the Respondents Mr Liz Mathew with Ms Sonali Jain Advocates. Mr Vivekanand with Mr Abhishek Semwal Advocates. HON’BLE MR JUSTICE VIBHU BAKHRU VIBHU BAKHRU J ITMA Hotels India Pvt. Ltd a company incorporated under the Companies Act 1956 has filed the present petition under Section 34 of the Arbitration and Conciliation Act 1996 hereinafter the ‘A&C Act’) impugning an arbitral award dated 14.02.2020rendered by the Arbitral Tribunal comprising of a Sole Arbitrator. O.M.P.485 2020 The impugned award has been rendered in the context of disputes that have arisen between the parties in relation to two separate Work Orders dated 27.04.2012 and 11.08.2012. Briefly stated the relevant facts that are necessary to address the controversy are as under: ITMA is a company engaged in providing accommodation services. The respondent is a company incorporated under the Companies Act 1956 and is engaged in the busines of construction interior and decorator’s work. ITMA through its consultant M s Apeejay Surrendra Group hereinafter the ‘Consultant’) invited the respondent for execution of the work described as interior works of banquet pre function banquet entrance lobby at the first floor of the hotel ‘The Park Kochi’. The respondent responded to the invitation to tender and thereafter negotiations were held between the parties at the office of the Consultant. The same culminated in ITMA issuing Work Order no. 137 for executing the “interior works in the banquet hall pre function banquet entrance lobby and male and female washrooms on the first floor of the Park Kochi” to the respondent for a value of ₹1 15 00 000 The works were to be completed within a period of four months from the date of receipt of the said Work Order that is on or before O.M.P.485 2020 During the course of execution of the works under Work Order no. 137 on 11.08.2012 ITMA issued another work order being Work Order no. 189 to the respondent for execution of interior works in the restaurant including all lobbies as well as male and female washrooms located at the twenty seventh and twenty eight floor of the hotel for a value of ₹83 74 635 . Disputes arose between the parties regarding non payment of the Running Account Billsby ITMA under both the Work Orders. In view of the disputes the respondent invoked the Arbitration Clause in the aforesaid Work Orders by a letter dated 07.04.2015 and accordingly a Sole Arbitrator was appointed by this Court. The parties referred the disputes to the Arbitral Tribunal and the arbitral proceedings culminated in the impugned award. 10. The claims made by the respondent in its Statement of Claims filed before the Arbitral Tribunal are summarised as under: Claimed amount Claim No. 1 ₹26 68 750 Work done but not paid against the Work Order earnest money security items executed under Work Order No.137 within periphery of banquet areas but not Claim No. 2 ₹17 07 000 O.M.P.485 2020 Claim No. 3 ₹8 50 340 Claim No. 4 Claim No. 5 ₹8 50 340 ₹1 72 500 Claim No. 6 ₹28 64 123.75 Claim No. 7 ₹4 39 668.45 Claim No. 8 ₹4 50 000 paid as per bill dated 05.01.2013 C 44A items executed under Work Order No.137 but not paid within banquet halls as per bill dated 13.11.2013 C 58 and C 58A WCT deducted under Work Order No.137 and 189 but TDS not issued Loss of profit on balance unexecuted value of Work Order No. 137 Work done but not paid against the Work Order earnest money security Loss of profit on balance unexecuted value of Work Order No. 189 Loss of hire charges of materials suffered due to retention and detention thereof from September 2013 to April 2014 @ ₹25 000 per month and non return thereof November 2013 till date of payment @12% p.a. Claim No. 9 ₹90 81 369.8 O.M.P.485 2020 Claim No. 10 ₹5 00 000 ₹53 26 158 along with interest 12% from ITMA also raised the following counter claims: Counter Claim No. 1 Refund of ₹53 26 158 which is the excess collected over and above the work actually executed by AMMTYS along with interest @12% from towards abandonment of work Counter Claim No. 2 Claim of damages for ₹ 81 38 143 Counter Claim No. 3 Claim for damages ₹96 05 698 Counter Claim No. 4 Claim towards loss of ₹2 00 00 000 revenue and loss of business opportunities Counter Claim No. 5 Compound Interest on sum due for the period as determined As determined Counter Claim No. 6 Legal costs incurred As determined towards arbitration By the impugned award the Arbitral Tribunal partly accepted the claims preferred by the respondent and awarded an aggregate amount of ₹1 10 47 353.70 along with interest at the rate of 12% per O.M.P.485 2020 annum in the event the awarded amount is not paid within a period of two months from the date of award in its favour. Reasons and Conclusion 13. Mr Mathew learned counsel appearing for ITMA assailed the impugned award on the ground as set out in Section 34(2)(a)(iv) of the A&C Act. According to him Claim nos. 2 and 3 awarded by the Arbitral Tribunal fell outside the scope of the Arbitration Agreement and were not arbitrable. He contended that the Arbitration Clause under the Work Orders was confined to referring the disputes that arose in respect of the Work Orders and therefore did not cover any claim for additional works. According to him such work did not fall within the scope of works as covered under the two Work Orders in question. He submitted that thus there was no agreement between the parties to refer the said disputes to arbitration. Next he submitted that in the event it is accepted that the additional works in respect of which the aforesaid claimswere made by the respondent related to the Work Orders the impugned award would be liable to be set aside as being contrary to the express terms of the contract between the parties. He contended that the Work Orders were for a lump sum amount and in terms of Clause 10 of the Work Orders no further amount was payable over and above the amount as mentioned in the respective Work Orders. He also drew the attention of this Court to Clause 18 of the Work Orders and submitted that in the event the extra items were considered as a ‘deviation’ within O.M.P.485 2020 the meaning of Clause 18 of the Work Order the same would require the express consent of ITMA. Since no such consent was granted the extra work done could not be considered as a ‘deviation’ in terms of Clause 18 of the Work Orders and therefore the impugned award is liable to be set aside. Mr Mathew earnestly contended that either the impugned award in respect of Claim nos. 2 and 3 is liable to be set aside as without jurisdiction as the said claims are not arbitrable or is liable to be set aside on the ground that it is patently illegal being contrary to the express terms of the contract between the parties. 16. Before proceeding to address the aforesaid contentions it is relevant to refer to the two claims in question Claim nos. 2 and 3. 17. The respondent had claimed a sum of ₹17.07 lacs under Claim no. 2 in terms of its invoice dated 05.01.2013 which was in respect of items executed within the periphery of the banquet areas. The respondent’s Claim no. 3 was for a sum of ₹39 04 100 in terms of its invoice dated 13.11.2013 for extra items executed within the banquet hall. 18. The respondent claimed that these invoices were for extra items under the Work Order no. 137. However it was entitled to extra payment as the said items were not included within the scope of work as initially contemplated. The respondent relied upon the Bill of Quantitiesin support of its claim that the extra items in question O.M.P.485 2020 were not a part of the BoQ and therefore were required to be paid in addition to the value as agreed between the parties. 19. Mr Mathew contended that the value of Work Order no. 137 was fixed at ₹1 15 00 000 without making any reference to the BoQ. He submitted that the Arbitral Tribunal had grossly erred in referring to the BoQ in respect of Work Order no. 137. 20. Work Order no. 137 defined the scope of work to be as per Annexure “A” to the Work Order. Annexure “A” of the said Work Order described the work to be executed as under: ANNEXURE A ITEM DESCRITPION QTY RATE Unit AMOUNT Lum sum No. 1 Complete Interior work execution of Banquet pre function Banquet lobby Male washrooms passage towards kerala restaurant but excluding stone work. Work should strictly be carried out as per drawings and detaisl from base work to final finishing as per drawing except list of items to be supplied by THE PARK. Work to be complete in all respects and to be approved by Project manager. Total O.M.P.485 2020 21. Note No. 1 to Annexure “A” also specified that “all items as in drawings are included even the items which are hidden and unseen Sustainable Support Structures for every application) but are necessary to achieve the final finished product” would be included in the description. Undoubtedly all items included in the drawings were to be considered as included within the scope of work and a lump sum consideration was fixed for the same. The Arbitral Tribunal found that the extra items invoiced by the respondent were ‘deviations’. In other words these were not included within the scope of work as initially contemplated. The Arbitral Tribunal examined the evidence and material on record and found that the scope of the work as contemplated initially was further detailed in the BoQ that was exchanged between the parties. Undisputedly the BoQ indicated the quantities to be executed under Work Order no. 137. The contention that the BoQ ought to be ignored was not accepted by the Arbitral Tribunal. ITMA’s contention that irrespective of the quantities to be executed and notwithstanding that the items were not initially contemplated by the parties the respondent was required to execute the same as a part of the lump sum rate was not accepted by the Arbitral Tribunal. It is seen that Claim no. 2 was in respect of fixing wall paneling with marine ply gypsum board false ceiling bison board cladding on aluminum on wall beams and external bison board cladding on wall beams. The learned counsel for ITMA has neither pointed out any drawings as initially sent to the respondent that would cover the said O.M.P.485 2020 items nor has ITMA contended that the same was included within the initial BoQ as exchanged between the parties. 23. Similarly Claim no. 3 relates to items such as removing of existing MDF paneling on ceiling surface wooden cladding on light after leveling the M.S. Structure extra orders item for installation of door frame and shutters resulting from the increase in size and shutter thickness for accommodate installation etc. The Arbitral Tribunal found that the items covered under Claim no. 3 were also over and above the BoQ items as exchanged at the material time. It is important to note that there is no dispute that the works for which the invoices were raised were in fact executed by the respondent. The respondent had also produced specific instructions which required the respondent to proceed and execute the works and submit its rates. Clearly there would be no requirement for the Consultant to call upon the respondent to submit any rates if the item of works were agreed to be included within the scope of work agreed between the parties. 25. The finding of the Arbitral Tribunal that the extra items in respect of which the respondent had raised Claim nos. 2 and 3 were not included in the work to be initially executed as it did not form a part of the BoQ exchanged at the material time is a finding of fact based on evaluation of the material on record. The learned counsel for ITMA has also not contested the said finding. He had confined his submissions to the BoQ being alien to the Work Order and therefore had urged that the Arbitral Tribunal had erred in relying upon the same. This Court is O.M.P.485 2020 unable to accept that the Arbitral Tribunal’s decision relying on the BoQ exchanged between the parties is perverse and warrants any interference. Clearly the consideration for the work is premised on the item and quantum of work to be executed. The BoQ exchanged between the parties would clearly reflect the same. The Arbitral Tribunal’s decision that the extra items went beyond the agreed scope of work as the same were not included in the BoQ warrants no interference by this Court. The said view cannot be stated to be patently illegal and one that vitiates the impugned award. 26. The Arbitral Tribunal also held that there was no dispute that the specific items of work for which payment was claimed by the respondentwere in fact executed. ITMA having accepted the said works was liable to pay for the same. The contention that the impugned order is liable to be set aside as the subject claims Claim nos. 2 and 3) raised by the respondent are not arbitrable is unmerited. The Arbitration Clause under Work Order No.137 reads as “21. ARBITRATION In the case of “arbitration clause” in terms of the Contract in an event both the parties are not able to arrive at a mutually acceptable arbitrator i.e. in case of disagreement as to the appointment of a single arbitrator then the Arbitration will be of two arbitrators of considerable experience) one to be appointed by each party which arbitrators shall before taking upon themselves the burden of reference appoint an umpire. The Arbitrators or the Umpire shall have Power to open up review and revise any certificate opinion decision O.M.P.485 2020 requisition or notice save in regard to the excepted matters in dispute which shall be submitted to him or them and of which notice shall have been given as aforesaid. The Award of the Arbitrators or the Umpire shall be final and binding on the Parties. This shall be deemed to be a submission to Arbitration within the meaning of the Indian Arbitration and Conciliation Act 1996 Terms and condition mentioned above are applicable in totality thereby terms and conditions mentioned in your quotation stand NULL & VOID.” A plain reading of the Arbitration Clause indicates that the Arbitral Tribunal had the necessary jurisdiction to decide the disputes that were referred to arbitration. The Arbitral Tribunal also had the power to review and revise any opinion or decision in all matters save and except the excepted matters. The jurisdiction of the Arbitral Tribunal was not confined to deciding the claims that were in relation to the scope of work as initially envisaged by the parties. The works that were done under the umbrella of the Work Order in question include extra items which were directed to be executed as a part of the “interior works of Banquet pre function banquette entrance lobby and male female wash rooms on the first floor at “The Park Kochi”. 28. The contention that the impugned award is contrary to the express terms of the contract inasmuch as the Arbitral Tribunal has awarded value for extra items executed by the respondent that were in addition to the work as initially agreed is also unpersuasive. ITMA had relied upon Clause 10 of the Work Order which reads as under: “10. VARIATIONS IN QUANTITIES: O.M.P.485 2020 This is a lump sum order for executing the works as per annexure A any variations in the rates due to changes in quantities is considered as included in ordered rate. Nothing would hidden seen unseen items.” 29. The Arbitral Tribunal had found that the said Clause is not applicable as the extra items in respect of which the subject claims were made were not merely variations in the quantities but additional items that were not covered within the scope of works as initially contemplated. In terms of the Work Order the respondent was obliged to perform the work as per the drawings furnished to it. Obviously the same has a clear nexus with the BoQ. However the Arbitral Tribunal accepted that there was a variation in the scope of work inasmuch as the additional items and or items of changed specifications were required to be executed. These items cannot sensu stricto be considered as changes in the quantities but were in the nature of a ‘deviation’. The view of the Arbitral Tribunal is certainly a plausible view and it is difficult to accept that the same is perverse or patently erroneous. The controversy is clearly within the realm of interpretation of the terms of the Work Order and was well within the jurisdiction of the Arbitral Tribunal. In the alternative it was contended on behalf of ITMA that no payments for deviation could be made in terms of Clause 18 of the Work order unless the same had ITMA’s prior approval. It was further contended that ITMA had not accorded its prior approval to execution O.M.P.485 2020 of the extra items for which Claim nos. 2 and 3 were raised by the respondent. 31. Clause 18 of the Work Order reads as under: “18. Deviation Any unauthorized deviation from the job by you will attract penalty through deduction from your bills. Any deviation or changes by the consultant in the assigned job should have our prior approval falling which no extra payment will be allowed at any cost.” 32. The Tribunal had examined the aforesaid contention and had found that the execution of the extra items did in fact have ITMA’s approval. 33. The Arbitral Tribunal had also noted that there was material that established that the Consultant was also acting on behalf of ITMA. The Work Order was signed by the Consultant on behalf of ITMA. The respondent was directed to do the work of extra items and also submit its quotes which it did. ITMA was also aware that the works as directed had been executed. It had raised no protest that extra items did not have its approval. The Arbitral Tribunal also noted that all the instructions with regard to the Work Orders had been issued by the Consultant. Therefore the Arbitral Tribunal liberally interpreted the words “prior approval” as used in Clause 18 of the Work Order. It is important to note that the Work Order did not require that prior approval of ITMA for any deviation should be in writing. It merely required the deviation to have the prior approval of ITMA. O.M.P.485 2020 Concededly all instructions with regard to execution of the works were issued by the Consultant. The record also indicates that some of the emails regarding execution of the works were marked to ITMA. ITMA did not at any stage object to the execution of the extra items. It is also clear that there is no dispute with respect to execution of the extra items as claimed by respondent. In the given circumstances the decision of the Arbitral Tribunal that the approval of ITMA for extra items could be inferred cannot be stated to be perverse or patently erroneous. 35. The contention that the impugned award is unreasoned and falls foul of the provisions of Section 31 of the A&C Act is without any merit. A plain reading of the impugned award indicates that the reasons are articulated and the Arbitral Tribunal has provided sufficient reasons for the conclusions drawn by it. Merely because the contentions of the parties were extensively noted does not in any manner indicate that the findings rendered by the Arbitral Tribunal are unreasoned. It was also contended on behalf of ITMA that the award for extra items was without any evidence or basis. This contention is also without merit as the respondent had submitted rates for extra items and the same are mentioned in the communicationssent by the respondent. The respondent had thereafter raised an invoice on the said basis. The invoiced amount has been awarded to the respondent. There was no dispute that the value of the invoice conformed to the rates quoted by the respondent. It is also material to indicate that the rates for extra items were not disputed by ITMA at the material time. O.M.P.485 2020 In view of the above this Court finds no reason to interfere with the impugned award. The petition is unmerited and is accordingly dismissed. All pending applications are also disposed of. VIBHU BAKHRU J SEPTEMBER 6 2021 RK O.M.P.485 2020

The order of deportation of a foreign national is beyond the powers of the Magistrate – Telangana High Court.

The Code of Criminal Procedure does not provide the magistrate with powers to order deportations of a foreign citizen and is limited to only acquittal and convictions of individuals involved in any offences under the ambit of the Indian Penal Code. The Hon’ble Sri Justice K. Lakshman, decreed “Learned Magistrate has to confine his findings with regard to either acquittal or conviction of accused therein under Section 248 of the Cr.P.C., Learned Magistrate is not having power to order deportation of any foreign citizen for any violation” in Bailly Gui Landry V. The State of Telangana [criminal petition Nos.4396 AND 4400 OF 2021]. The Brief facts of the case are, the petitioner who is a citizen of Ivory Coast was holding an Indian Visa which was valid till 07.02.2020 for employment. He was involved in two cases for scamming individuals of their money under the pretext of employment opportunities. The earned I Additional Junior Civil Judge-cum-IX Additional Metropolitan Magistrate, Cyberabad at Kukatpally, had acquitted the petitioner herein in both the above said Calendar Cases. He also directed the jail authorities to release the accused and deport him to his country. Aggrieved by this, the petitioner filed the criminal petition for quashing such an order of deportation. The deportation of foreign nationals is covered under the Foreigners act, 1946. The learned judge observed that the magistrate had not provided any reason for the deportation of the petitioner which is prescribed under the Foreigners act. It was also observed that such an order was illegal and beyond the scope of powers awarded to the magistrate under Section 248 of the CrPC. It was also brought to the attention of the court by the public prosecutor that the petitioner was residing in India illegally since his visa had expired. It was also observed that the Deputy commissioner of police acquired an order by the Foreigners Regional Registration Officer which restricted the movement of the petitioner to the premises of CCS Hyderabad, suspecting that he would indulge in undesirable activities which could be a threat to the national security otherwise. It was also noted that due to the ongoing Pandemic, the petitioner could not be deported to his home country and arrangements for such a deportation would take place as soon as possible. Section 3 and section 14 of the Foreigners act, provide the grounds for deportation of foreign nationals and the procedure prescribed for such a deportation.

THE HONOURABLE SRI JUSTICE K.LAKSHMAN CRIMINAL PETITION NOs.4396 AND 4400 OF 2021 Dated 22.06.2021 CRIMINAL PETITION NOs.4396 AND 4400 OF 2021 Bailly Gui Landry …Petitioner accused The State of Telangana rep. by Its Public Prosecutor High Court of Telangana Through Cyber Crime Cyberabad. …Respondent Counsel for the Petitioner: P.Shashi kiran Counsel for the Respondent: Public Prosecutor State of Telangana Gist : Head Note : Cases Referred : Nil 2 HON’BLE SRI JUSTICE K. LAKSHMAN CRIMINAL PETITION Nos.4396 AND 4400 OF 2021 COMMON ORDER: Mr.Baily Gui Landry petitioner has filed these two Criminal Petitions under Section 482 of the Code of Criminal Procedure 1973 to quash the order of in the judgments both dated 06.05.2021 C.C.No.36 of 2020 and C.C.No.27 of 2020 passed by the I Additional Junior Civil Judge cum IX Additional Metropolitan Magistrate Cyberabad at Kukatpally and also release him from custody of Cyber Crime Cyberabad immediately. 2. Since the petitioner is common the issue involved is common and the contentions raised by the parties are also common both the Criminal petitions are heard together and decided by this common order. 3. Heard Sri P.Shashi Kiran learned counsel for the petitioner and learned Public Prosecutor for State and perused the record. 4. In both the Criminal Petitions the order of deportation of the petitioner in the judgments in C.C.No.220 and 36 of 2020 both dated 06.05.2020 is under challenge. 5. Sri P.Shashi Kiran learned counsel for the petitioner would submit that the Magistrate while dealing with the Calendar Case and vide pronouncing judgment under Section 248 of Cr.P.C. is not having power to order deportation of any or foreign citizen for any kind of violation. 3 6. According to him there is procedure prescribed under the Foreigners Act 1946for deportation of a foreign citizen for violation of the provisions of the said Act but learned Magistrate is not having power to order deportation of any foreign citizen for violation of the provisions of the Act. 7. A perusal of the judgments in both the C.C.Nos.27 of 2020 and 320 would reveal that the petitioner belongs to Ivory Coast. He is having passport of the said country bearing passport No.17AP188083 valid till 30.10.2022. He was holding Indian visa which was valid till 07.02.2020. He came to India on employment visa. He has involved in two cases i.e. Cr.No.198 of 2019 and Cr.No.137 of 2020 for the offences under Sections 417 419 and 420 IPC and Section 66 © andof I.T.Act 2000. The allegations in both the said crimes are almost same. He has induced the defacto complainants herein saying that he will provide a job he has taken money and cheated them. 8. After completion of investigation the Investigating Officer has filed charge sheets in both the above said crimes and the same were taken on file as C.C.No.27 of 2020 and 36 of 2020. After conducting trial learned I Additional Junior Civil Judge cum IX Additional Metropolitan Magistrate Cyberabad at Kukatpally has acquitted the petitioner herein in both the above said Calendar Cases vide judgments both dated 06.05.2021. While acquitting the petitioner learned Magistrate directed the jail authorities to release the accused forthwith if he is not 4 required in any other cases he may be deported immediately to his native country if there are no other cases were pending against him in India. 9. The petitioner aggrieved by the order of his deportation in the said judgments both dated 06.05.2021 preferred these two Criminal Petitions for quashing the same. 10. In view of the said contention of the petitioner it is relevant to refer relevant provisions of the Cr.P.C. Chapter XIX of the Cr.P.C. deals with trial of warrant cases by Magistrates. Section 248 of the Cr.P.C. deals with the acquittal or conviction. Therefore as per the said proviso the trial Court has to either acquit or convict the accused by giving reasons after conducting full fledged trial. In the present case learned Magistrate after conducting full fledged trial acquitted the petitioner herein in the Calendar Cases vide judgments both dated 06.05.2021. But in the said judgments learned Magistrate has ordered for deporting the petitioner immediately to his native country. 11. A perusal of both the judgments would reveal that learned Magistrate did not give any reasons for ordering deportation of the petitioner. There is no reason mentioned by the learned Magistrate in the judgments both dated 06.05.2021 that the petitioner herein a foreign citizen staying in India in contravention of the Act. As discussed above learned Magistrate is not having power to order deportation of any foreign citizen even in case of violation of the provisions of the Act or otherwise. 5 Learned Magistrate has to confine his findings with regard to either acquittal or conviction of accused therein under Section 248 of the Cr.P.C. Learned Magistrate is not having power to order deportation of any foreign citizen for any violation. Therefore in view of the above said discussion judgments both dated 06.05.2021 in C.C.No.27 of 2020 and C.C.No.30 of 2020 ordering deportation of the petitioner accused an Ivory Coast National is illegal and contrary to the provisions of Cr.P.C. It is also relevant to note that the Code of Criminal Procedure does not permit learned Magistrate to pass deportation order while dealing with the above Calendar Cases. Therefore to the extent of deportation order of the petitioner passed in C.C.No.27 of 2020 and C.C.No.320 both dated 06.05.2021 is quashed. 12. It is relevant to note that learned Public Prosecutor has placed written instructions submitted by the Sub Inspector of Police Station Commissionerate dated 15.06.2021 along with certain documents. In the said written instructions it is specifically mentioned that after obtaining a copy of the judgment the Deputy Commissioner police Crimes Cyberabad Commissionerate addressed a letter to the Foreigners Regional Registration Officer Bureau of Immigration Government of GOI) Shamshabad Hyderabad on 17.05.2021 with a request to issue deportation and also movement restriction orders against the petitioner herein a 6 foreign national. Pursuant to the said request the FRRO vide his order dated 18.05.2021 directed the petitioner herein a foreign national not to move out of the premises of CCS Hyderabad as there is likelihood of he may go underground or indulge in undesirable activities which are detrimental to national security. It is also further mentioned that Cyber Crimes Police have booked tickets for journey of the petitioner herein for 02.06.2021 by Qatar Airways. But Qatar Airways office sent a mail to the Cyber Crimes Police stating that the customers traveling from India are not allowed to enter LOS. Due to the said reasons the petitioner has not been deported yet. It is also further mentioned in the said written instructions dated 15.06.2021 that after getting permission from the concerned authorities the petitioner will be deported to his country. It is also further mentioned that the visa of the petitioner expired on 07.02.2020 itself and he is staying in this country illegally. The Sub Inspector of Police Cyber Crimes Police Station Cyberabad Commissionerate has also filed copies of the visa passport letter addressed by the Deputy Commissioner CCS Cyberabad the order of the FRRO dated 18.05.2021 issued by the FRRO notice received from Qatar Airways and tickets along with his written instructions in proof of his submissions mentioned in the written instructions dated 15.06.2021. In view of the same it is relevant to mention the procedure laid down under the Act. Section 3 of the Act deals with the power to make orders. As per 7 Section 3(2)© of the Act a foreigner shall not remain in India or in any prescribed area therein and as per Section 3(2)(e) of the Act a foreigner shall comply with such conditions as may prescribed or specified as under: i) requiring him to reside in a particular place ii) imposing any restrictions on his movements iii) requiring him to furnish such proof of his identity and to report such particulars to such authority in such manner and at such time and place as may be prescribed or specified iv) requiring him to allow his photograph and finger impressions to be taken and to furnish specimens of his handwriting and signature to such authority and at such time and place as may be prescribed or specified v) requiring him to submit himself to such medical examination by such authority and at such time and place as may be prescribed or specified vi) prohibiting him from association with persons of a prescribed or specified description vii) prohibiting him from engaging in activities of a prescribed or specified description viii) prohibiting him from using or possessing prescribed or specified articles ix) otherwise regulating his conduct in any such particular as may be prescribed or specified 13. Section 14 of the Act deals with penalty for contravention of provisions of the Act which is also relevant to decide the lis involved in the present Criminal Petitions extracted below: 14. Penalty for contravention of provisions of the Act etc.— a) remains in any area in India for a period exceeding the period for which the visa was issued to him 8 b) does any act in violation of the conditions of the valid visa issued to him for his entry and stay in India or any part thereunder c) contravenes the provisions of this Act or of any order made thereunder or any direction given in pursuance of this Act or such order for which no specific punishment is provided under this Act into a bond shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine and if he has in pursuance of clauseof sub sectionof section 3 his bond shall be forfeited and any person bound thereby shall pay the penalty thereof or show cause to the satisfaction of the convicting Court why such penalty should not be paid by him. Explanation.—For the purposes of this section the expression visa" shall have the same meaning as assigned to it under the PassportRules 1950 made under the Passport entry into India) Act 1920by Sub Rule of Rule 3 of the Registration of Foreigners Rules 1992 and in exercise of powers conferred by Section 3(2)© of the Act. impose restriction under para 11(2) of the Foreigners Order 1948 on the petitioner herein an Ivory Coast national who has involved in Cr.No.198 of 2019 and Cr.No.137 of 2020 of P.S.Cyber Crimes Cyberabad not to move out of the premises of CCS Hyderabad as there is likelihood that he may go underground or indulge in undesirable 9 activities and detrimental to national security. Non compliance of the said order shall render him liable for prosecution under section 14 of the Act. The FRRO has passed the said order dated 18.05.2021 on the request made by the Joint Commissioner of Police Crimes Cyberabad Commissionerate dated 17.05.2021. The said order dated 18.05.2021 is in force. 15. As stated above the Cyber Crime Police have also booked tickets to the petitioner to send him to his native place Ivory Coast through Qatar Airways on 22.06.2021 but due to the present COVID 19 pandemic situation on the request of the Qatar Airways the deportation of the petitioner herein could not happen. In the written instructions it is specifically mentioned that after getting permission from the concerned authorities the petitioner will be deported to his country. Thus there is no dispute that the visa granted to the petitioner was expired on 07.02.2020 itself. A perusal of a copy of visa filed by the Sub Inspector of Police Cyber Crimes Police Station would reveal the said fact. It is also not in dispute that the petitioner is having Ivory Coast passport bearing No.17AP18083 valid 30.10.2022. Thus deportation of a foreign national for any violation is specifically mentioned in the Act and Regulations mentioned therein. The Police have already invoked said procedure and an order dated 18.05.2021 was passed by the FRRO. The efforts are being made to send the petitioner to his native place. 10 16. In view of the above said discussion the prayer sought by the petitioner to release him from the custody of Cyber Crimes Police Cyberabad immediately is rejected. If at all the petitioner is having any grievance he has to challenge the order dated 18.05.2021 through which the FRRO has directed him not to move out of premises of CCS Hyderabad on the ground of national security. However the Cyber Crimes Police Cyberabad Commissionerate and the FRRO and civil authorities Hyderabad shall make an endeavour to deport the petitioner to his native place as early as possible after getting permission from the concerned authority. are disposed of. 17. With the above said directions these Criminal Petitions As a sequel miscellaneous petitions if any pending in these Criminal Petitions shall stand closed. K. LAKSHMAN J Note: L.R. copy to be marked.

The remedy of Appeal may not be inefficacious: Bombay High Court

The Counsel for the Petitioner claimed that, an appeal in this case, would not be an appropriate and efficacious remedy because Securities Appellate Tribunal had previously decided that the matter should be reverted back to the SEBI. However, the same was rejected by the High Court on considering the constitution of the SAT, which includes the Presiding Officer (Supreme Court Judge or Chief Justice of High Court) and Judicial Members (High Court Judge). This was observed in the case of Schneider Electric President Systems v. SEBI & Ors., [ Writ Petition (L) No. 4055 of 2021] before Hon’ble Justices, A.A Sayed and Madhav Jamdar. The Petitioner had prayed to the court to issue a writ of certiorari to quash the order decided on January 19th 2021 and asked for a stay of proceedings is the disposal of the petition is pending to avoid informing the shareholders and the designated stock exchange to list securities on a national exchange or deregister the company. The order of SAT was challenges by SEBI before the Supreme Court but was dismissed. After the matter was reverted back to the SEBI it gave its order on 19th January 2021, which can be further contested through an appeal before the SAT. Taking into account the Petitioner’s contentions and the composition of the SAT, the High Court was of the opinion that, “we do not think there is any basis in the apprehension expressed by the learned Senior Counsel that the remedy of the Appeal may not be efficacious. However, only to satisfy and allay the concerns of the Petitioner, we only say that in the event the Appeal is filed by the Petitioner, the same would be decided by the Securities Appellate Tribunal without being influenced by its earlier order dated 26-11-2019 and its observations made therein shall be treated as prima facie. We also note that as per section 15Z of SEBI Act, an Appeal lies to the Supreme Court from the order of the Securities Appellate Tribunal.”

on 17 02 2021 on 17 02 1 410 wpl 4055 2021.docIN THE HIGH COURT OF JUDICATURE AT BOMBAYO.O.C.J.WRIT PETITIONNO.4055 OF 2021…Schneider Electric President Systems Ltd....Petitionerv s.Securities and Exchange Board of India & Ors....Respondents…Mr.Janak Dwarkadas Senior Counsel a w Mr.Kunal Dwarkadas Ms.SonaliMathur Ms.Trisha Sarkar Mr.Niket Jain and Ms.Ambareen Maujawar i bAZB & Partners for the Petitioner.Mr.Mustafa S. Doctor Senior Counsel a w Mr.Anubhav Ghosh andMr.Ravishekhar Pandey i b The Law Point for the Respondent No.1.Mr.Sumit Agrawal a w Ms.Nidhi Chheda i b Regstreet Law Advisors forRespondents Nos.2 to 32.… CORAM : A.A. SAYED & MADHAV JAMDAR JJ. DATED : 15 FEBRUARY 2021P.C.:The Petition has been filed seeking the following reliefs:(a)That this Hon’ble Court be pleased to issue a writ of certiorari ora writ in the nature of certiorari or any other writ order or directionquashing and setting aside the impugned order dated January 19 2021.Uday.P.Kambli1 4 on 17 02 2021 on 17 02 2 410 wpl 4055 2021.doc(b)That pending the hearing and final disposal of the Petition thisHon’ble Court be pleased to stay the effect and operation of theimpugned order dated January 19 2021 including from requiring thePetitioner to inform the shareholders as also the designated stockexchanged regarding the option to list on a nationwide exchange ordelist the company.2.It is not disputed that the Petitioner has a remedy to challenge theimpugned order of the Securities Exchange Board before the SecuritiesAppellate Tribunal under section 15T of the Securities and Exchange Boardof India Act 1992.3.It is however submitted by the learned Senior Counsel for thePetitioner that that remedy would not be an efficacious remedy since theSecurities Appellate Tribunal has already formed an opinion vide orderdated 26 11 2019 in the earlier round of litigation whereunder the SecuritiesAppellate Tribunal has remitted the matter back to the Securities ExchangeBoard. It is pointed out that the said order dated 26 11 2019 of theSecurities Appellate Tribunal was challenged by the Securities ExchangeBoard before the Supreme Court and while dismissing the Civil Appeal theSupreme Court by order dated 15 10 2020 directed the SecuritiesUday.P.Kambli2 4 on 17 02 2021 on 17 02 3 410 wpl 4055 2021.docExchange Board to decide the matter without being influenced by anyobservations made by the Securities Appellate Tribunal. After remand Securities Exchange Board has now decided the matter by the impugnedorder dated 19 01 2021 which order can be challenged by filing Appeal tothe Securities Appellate Tribunal as indicated in paragraph 2 above. Thedirections of the Supreme Court in the order dated 15 10 2020 in our view should equally apply to the Securities Appellate Tribunal.4.Considering the composition of the Securities Appellate Tribunal(see section 15M of the SEBI Act) which comprises of three members twoof whom are former Judgeswe do not think there is any basisin the apprehension expressed by the learned Senior Counsel that theremedy of the Appeal may not be efficacious. However only to satisfy andallay the concerns of the Petitioner we only say that in the event theAppeal is filed by the Petitioner the same would be decided by theSecurities Appellate Tribunal without being influenced by its earlier orderdated 26 11 2019 and its observations made therein shall be treated asprima facie. We also note that as per section 15Z of SEBI Act an AppealUday.P.Kambli3 4 on 17 02 2021 on 17 02 4 410 wpl 4055 2021.doclies to the Supreme Court from the order of the Securities AppellateTribunal.5.In light of the above the Writ Petition is disposed of with libertyto the Petitioner to approach the Securities Appellate Tribunal.6.Having regard to the facts and circumstances of the case wedirect that no coercive steps be taken by the SEBI against the Petitioner fora period of three weeks from today.(A.A.SAYED J.)Uday.P.Kambli4 4

Abide to the procedural laws! : Supreme Court

The procedural law has been established to provide the methods in which a procedure must be followed and every person is expected to comply with those procedures. It is a well settled salutary principle that if a statutory provision provides for a thing to be done in a particular manner, then it has to be done in that manner and no other manner. This assertion was made by the honorable Supreme Court presided by J. S.A. Bobde, J. A.S. Bopanna and J. V. Ramasubramanian in the case of OPTO Circuit India Ltd. vs Axis Bank & othrs. [CRIMINAL APPEAL NO.102  OF 2021]. When   the   Special   Leave   Petition   was   listed   for admission, the appellant while assailing the order passed by the High Court, inter alia contended that the freezing of the bank accounts maintained by them has prejudiced them, inasmuch as, the amount in the account which belongs to the appellant is made unavailable to them due to which statutory payments to be made to the Competent Authorities under various enactments is withheld and the payment of salary which is due to the employees is also prevented. In that background, this Court though had not found any reason to interfere with the initiation of the proceedings under the Prevention of Money­Laundering   Act, 2002   had, however, limited the scope of consideration in this appeal on the issue of defreezing the bank account so as to enable the appellant to make the statutory payments.  In that view, notice had been issued to the respondent through the order in the following manner “issue notice restricted to the purpose of enabling necessary payment returnable within two weeks”. The respondent on being served, having appeared filed the counter affidavit. The honorable court contended, “Therefore, if the salutary principle is kept in perspective, in the instant case, though the Authorised Officer is vested with sufficient power; such power is circumscribed by a procedure laid down under the statute. As such the power is to be exercised in that manner alone; failing which it would fall foul of the requirement of complying due process under law. We have found fault with the Authorised Officer and declared the action bad only in so far as not following the legal requirement before and after freezing the account. This shall not be construed as an opinion expressed on the merit of the allegation or any other aspect relating to the matter and the action initiated against the appellant and its Directors which is a matter to be taken note in appropriate proceedings if at all any issue is raised by the aggrieved party.” The court further held, “Apart from the above consideration, what has also engaged the attention of this Court is with regard to the plea put forth on behalf of the appellant regarding the need to defreeze the account to enable the appellant to pay the statutory dues.

… The appellant is before this Court assailing the order dated 13.08.2020 passed by the High Court of Karnataka in WP No.8031 of 2020. Through the said When the Special Leave Petition was listed for admission the learned senior counsel for the appellant alia contended that the freezing of the bank accounts appellant inasmuch as the amount in the account Competent Authorities under various enactments is employees is also prevented. In that background this Money­Laundering Act 2002 had on the issue of defreezing the bank account so as to that view notice had been issued to the respondent through the order dated 11.09.2020 in the following manner ­ “issue notice restricted to the purpose of enabling necessary payment returnable within two has filed the counter affidavit on behalf of respondent In that background we have heard Mr. Mukul Rohatgi learned Senior Advocate for the appellant and The instant appeal arises out of the proceedings is a fall out of the same. It is in that background the In the said process the Deputy Director Directorate of Enforcement through the communication dated 15.05.2020 addressed to the Anti Money­Laundering instructed them that the accounts maintained by the appellant company be ‘debit freezed stop operations’ until further orders with immediate effect. It is in that an appropriate writ to quash the communication dated 15.05.2020 issued for debit freezing the account No.914020014786978 maintained with the respondent No.1 account No.200006044354 maintained with the respondent No.2 and the account No. 39305709999 maintained with the respondent No.3. The appellant in has taken into consideration the object with which the PMLA was enacted and the validity of the Act being of parallel proceedings under Section 3 and 4 of PMLA action taken for predicate offence the High Court was power under the Act was available. As already noticed limited to the aspect of freezing defreezing the account appellant to make the statutory payments even if the cannot be lost sight is also the fact as to whether the power available to the competent authority has been The Directorate of Enforcement in their counter affidavit has taken contradictory stand inasmuch as while explaining the need to freeze the account has stated that the ‘stop operation’ was requested to stop the further layering diversion of has not been done under Section 17(1) of the PMLA However in contrast it has been further averred with over other laws. Irrespective of the stand taken the power exercised by the Competent Authority should be such property or record is also provided. Section 1. Search and seizure­ Enter and search any building place vessel vehicle or aircraft where he has reason to suspect that such records or proceeds of b) Break open the lock of any door box locker safe almirah or other receptacle for exercising the powers conferred by clause place marks of identification on or make or cause to be made e) make a note or an inventory of examine on oath any person who is found to be in possession or control of any record or property in respect of all matters relevant for the purposes of record or property the officer authorised shall not be transferred or otherwise dealt order shall be served on the person Provided that if at any time before its confiscation under sub­section or sub­ section of section 60 it becomes practical to seize a frozen property the search and seizure or upon issuance of a so recorded along with material in his possession referred to in that sub­section to the Adjudicating Authority in a sealed envelope in the manner as may be prescribed and such Adjudicating Authority 3) Where an authority upon information obtained during survey under section 16 is satisfied that any evidence shall be or is may for reasons to be recorded in writing such evidence is located and seize that to in sub­section shall be required for the authority seizing any record or property under sub­section or freezing shall within a period of thirty days from such seizure or freezing as the case may be file an application requesting for retention freezing served under sub­sectionbefore A perusal of the above provision would indicate has committed acts relating to money laundering and that the Officer Authorised under sub­section may forward a copy of the reasons recorded along with from such seizure or freezing as the case may be file an freezing of the account will also require the same note of Section 2(v) and of PMLA which defines “Sec. 2(v) ­ “property” ­ means any property or assets of every description or immovable tangible or intangible and includes deeds and evidencing title to or interest in such “Sec. 2(w) “records” include the records maintained in the form of books or stored in a computer or such other seeks to achieve the object of preventing money laundering and bring to book the offenders it also safeguards the rights of the persons who would be procedure. Hence a procedure including timeline is purpose to which the officer is vested with such power In the instant case the procedure contemplated under not been followed by the Officer Authorised. Except to AML Officer to seek freezing no other procedure contemplated in law is followed. In fact the impugned communication does not even refer to the belief of the Authorised Officer even if the same was recorded the case and seeks for relevant documents but in the be ‘debit freezed stop operations’. It certainly is not the requirement that the communication addressed to the Bank itself should contain all the details. But what is provided under Section 17(1) of PMLA before the of Section 17(2) of PMLA after the freezing is made is of money laundering and placing it before the Adjudicating Authority or for filing application after due compliance of the legal requirement and therefore 12. Mr. S.V. Raju learned Additional Solicitor General made a subtle attempt to contend that the power of seizure is available under Section 102 of the Code of Criminal Procedure which has been exercised and as more than one reason. Firstly as noted it has been the contention of Respondent No.4 that PMLA is a stand­ the power available therein is to be exercised and the procedure contemplated therein is to be complied Section 102 CrPC is to the Police Officer during the different from the scheme under PMLA. Further even sub­section to Section 102 CrPC requires that the Police Officer shall forthwith report the seizure to the That apart the impugned communication dated 15.05.2020 does not refer to the power being exercised reference to the contents of the order communication and the same cannot be justified Election Commissioner New Delhi & Ors. 1 statutory functionary makes an order based on certain grounds its validity must be judged by the reasons so mentioned and cannot be supplemented Otherwise an order bad in the beginning may by the "Public orders publicly made in exercise of a the order of what he meant or of what was in his those to whom they are addressed and must be construed objectively with reference to the language In fact in the instant case such contention of having exercised power under Section 102 CrPC has not been put forth even in the counter affidavit either in this attempted ingenuity of the learned Additional Solicitor General. Such contention therefore cannot be accepted Court much emphasis has been laid on the power available under PMLA and the same being exercised though without specifically referring to the power The respondent No.4 in the counter affidavit has stated that the action initiated against the appellant is based on the complaint dated 02.11.2019 made by the State Bank of India alleging that the appellant its Chairman and the Promoter Directors have conspired and cheated them to tune of Rs. 354.32 crores by diversion of funds abroad. In that regard the CBI has registered the case in FIR No. RC 18(A) 2019 dated 468 and 471 IPC and under Section 13(2) read with section 13(1)(d) of Prevention of Corruption Act 1988 Section 2(1)(x) and of PMLA the case in ECIR­ BGZO 01 2020 was recorded by the Directorate on proceeds of crime. On that aspect we have already herein was only with regard to freezing of the bank account and as to whether while doing so the due statute provides for a thing to be done in a particular in no other manner. Among others in a matter relating to the presentation of an Election Petition as per the out as to what would be a valid presentation of an Therefore if the salutary principle is kept in perspective in the instant case though the Authorised Officer is power is to be exercised in that manner alone failing due process under law. We have found fault with the other aspect relating to the matter and the action plea put forth on behalf of the appellant regarding the relied on the certificate issued by the Chartered Accountant which indicates the amount payable towards ITDS PF ESI Professional Tax Gratuity and LIC employees’ deductions in all amounting to Rs.79 93 124 ­. Since we due compliance of law it is necessary to direct the favour of the Competent Authority towards the ITDS PF ESI Professional Tax Gratuity and LIC employees’ deductions subject to availability of the funds in the account concerned. Needless to mention that if any action is to be taken by the respondent No.4 within a to compliance of the required procedure afresh as In terms of the above the communication dated defreeze the accounts bearing Nos 914020014786978 200006044354 and 39305709999 statutory dues stated supra. Liberty is reserved to Respondent No.4 thereafter to initiate action afresh in Page 2

Mens Rea can be determined only at time of trial and not during issuing of the summons: High Court of Jharkhand

At the stage of issuing summons, a strict standard of proof cannot be applied and the court is required to see that there are satisfactory grounds for proceeding. Aspects like Mens Rea are relevant only during the trial and should not be considered during issuing of the summons. This was held in the judgement passed by a single member bench of the High Court of Jharkhand consisting of Justice Sanjay Kumar Dwivedi in the case of Suresh Sahu v State of Jharkhand [Cr.M.P. No. 1348 of 2021] pronounced on 11th August 2021. The main petitioner, Suresh Sahu along with his parents Shiva Sahu and Sonamati Devi, filed this petition before the High Court of Jharkhand with the prayer to quash the entire criminal proceeding against them which was filed under Sections 307, 341, 323 and 498(A) of the Indian Penal Code for the attempt to murder, wrongful restraint, voluntarily causing hurt and harassment of a woman to an extent she could be driven to suicide. The petitioner was married to the complainant as per Hindu rites and rituals and lived with her at his parent’s house for six months with many problems. It is alleged that after the time period, the petitioners began to verbally abuse and insult the complainant about the weak economic background of her family and their inability to pay a decent dowry. Additionally the petitioners are accused of attempting to strangulate the complainant, physically attack the complainant leading to her hospitalisation and eventually kicking the complainant out of their home. The petitioner’s counsel contended before the court that the petitioner’s had no intention to cause any harm to the complainant and that despite them not committing any of the alleged offence cognizance was taken against them. The counsel furthered his argument by citing the case of Priyanka Srivastava & another v State of Uttar Pradesh & others [(2015) 6 SCC 287] and concluding that the entire criminal proceedings filed against the petitioners should be quashed. The court however noted that there were more than sufficient materials on the record which prima facie substantiated the complainant’s statements so the petitioner’s request to quash the proceedings would not be granted.

1 Cr.M.P. No. 13421 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 13421 Suresh Sahu aged about 31 years son of Shiva Sahu Shiva Sahu aged about 58 years son of Budhu Sahu Sonamati Devi aged about 53 years W o Shiva Sahu All are resident of village Hundra Toli P.O. & P.S. Gumla District … Petitioners Versus The State of Jharkhand Ranthi Devi W o Suresh Sahu D o Jagatpal Ohdar resident of village Pantha Basia P.O. & P.S. Basia District Gumla … Opposite Parties CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI For the Petitioners For the Opposite Party State Mr. Arun Kumar Advocate Mr. Vineet Kumar Vashistha A.P.P Heard Mr. Arun Kumar learned counsel for the petitioners and Mr. Vineet Kumar Vashistha learned A.P.P. for the opposite party State This criminal miscellaneous petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID 19 pandemic. None of the parties have complained about any technical snag of audio video and with their consent this matter has been heard on merit. The petitioners have filed this petition for quashing of entire criminal proceeding including the order taking cognizance dated 03.04.2021 passed by the learned Chief Judicial Magistrate Gumla in G.R. No.307 of 2021 Gumla P.S. Case No.3520) by which the learned court below has taken cognizance for the offence under Sections 341 323 307 498(A) of the Indian Penal Code and process has been issued against the petitioners The prosecution case has been lodged on the basis of the complaint petition filed by the informant opposite party no.2 before the learned court 2 Cr.M.P. No. 13421 below stating therein that she was married with petitioner no.1 on 15.04.2019 as per Hindu rites and rituals. After marriage opposite party no.2 live in her matrimonial house for six months thereafter she was tortured by the petitioners by saying that she belongs from pauper family and she is a Bajhinlady. In the month of April the petitioners assaulted opposite party no.2 and ousted her from the house as such a Panchayati was held in the village but the matter was not settled Thereafter opposite party no.2 made a complaint to the Superintendent of Police Gumla who referred the matter to the Mahila Police Station where both the parties were called and settled the dispute and thereafter the petitioners had taken opposite party no.2 to the house but after one week they again started torturing upon the victim and on 13.08.2020 after some altercation mother in law started strangulation upon the victim and petitioner nos. 1 and 2 assaulted upon her. However on hulla people of nearby came and save her and took her hospital for her treatment. The aforesaid complaint petition was referred to the concern police station by the learned court below for registering the F.I.R. under the provision of Section 156(3) Cr.P.C. and investigation over the matter accordingly the F.I.R. has been registered against the petitioners for the offence under Sections 341 323 307 498(A) of the Indian Penal Code and after investigation cognizance has been taken vide order dated 03.04.2021 Mr. Arun Kumar learned counsel for the petitioners submits that the petitioners have not committed such offence as alleged against them and in spite of that cognizance has been taken against the petitioners. He further submits that the case under Section 498(A) of the Indian Penal Code is not made out against the petitioners and Sections 307 of the Indian Penal Code 3 Cr.M.P. No. 13421 is also not attracted as injury report is not serious in nature. He also submits that the case of the petitioners is fully covered in light of the judgment rendered by the Hon ble Supreme Court in the case of Priyanka Srivastava and another v. State of Uttar Pradesh and others reported in6 SCC 287 On perusal of the complaint petition on the basis of which the F.I.R has been lodged it transpires that there are sufficient materials on the record and there are allegations against the petitioners. The injury report dated 13.08.2020 is also on the record. In the cognizance order the trial court has applied its mind and the cognizance was taken after perusing the charge sheet case records and case diary. The mens rea can only be decided at the time of trial and not at the stage of issuing summons. When prosecution relies upon the materials strict standard of proof is not to be applied at the stage of issuance of summons nor to examine the probable defence which the accused may take. All that the Court is required to do is to satisfy itself as to whether there are sufficient grounds for proceeding Before summoning the accused the facts stated will have to be accepted as they appear on the very face of it. For issuance of process against the accused it has to be seen only whether there is sufficient ground for proceeding against the accused and the Court is not required to weigh the evidentiary value of materials on record. The Court is not to examine the merits and demerits of case and not to determine the adequacy of evidence for holding the accused guilty at the time of taking cognizance. These are the subject matters of the trial. This aspect of the matter has been considered by the Hon ble Supreme Court in the case of State of Gujarat v. Afroz Mohammed Hasanfatta reported in 2019JLJR163 4 Cr.M.P. No. 13421 Paragraphs 35 37 43 47 and 48 of the said judgment are quoted herein “35. Whether the statement of Prafulbhai Patel is in the nature of hearsay and whether it is supported by ‘contemporaneous exposition’ and whether it would fall under ‘res gestae’ and whether it is admissible or not is to be seen only at the time of trial. We are not inclined to go into the merits of the contention of either party as the same is to be raised and answered only at the time of trial. Observing that before summoning the accused the facts stated will have to be accepted as they appear on the very face of it in Bhaskar Lal Sharma it was held as under: “11. …..The appreciation even in a summary manner of the averments made in a complaint petition or FIR would not be permissible at the stage of quashing and the facts stated will have to be accepted as they appear on the very face of it. This is the core test that has to be applied before summoning the accused. Once the aforesaid stage is overcome the facts alleged have to be proved by the complainant prosecution on the basis of legal evidence in order to establish the penal liability of the person charged with the offence.” 37. For issuance of process against the accused it has to be seen only whether there is sufficient ground for proceeding against the accused. At the stage of issuance of process the Court is not required to weigh the evidentiary value of the materials on record. The Court must apply its mind to the allegations in the charge sheet and the evidence produced and satisfy itself that there is sufficient ground to proceed against the accused. The Court is not to examine the merits and demerits of the case and not to determine the adequacy of the evidence for holding the accused guilty. The Court is also not required to embark upon the possible defences Likewise ‘possible defences’ need not be taken into consideration at the time of issuing process unless there is an ex facie defence such as a legal bar or if in law the accused is 43. The learned counsel for the State submitted that there is a clear evidence of flow back of Rs.16 00 00 000 to the account of respondent as commission from the company controlled by Madanlal Jain which has not been explained Insofar as the receipt of over Rs.16 00 00 000 “as commission” by the respondent accused for his role in the scam the learned Single Judge discarded the same on the erroneous ground that “there is no mens rea or culpable knowledge on the part of the accused”. Whether the accused respondent had mens rea or not is not to be established at the stage of issuance of summons. In Bholu Ram v. State of Punjab and Another 9 SCC 140 this Court held that mens rea can only be decided at the time of trial and not at the stage of issuing summons. 5 Cr.M.P. No. 13421 47. The learned Single Judge in the impugned order extensively extracted statement of the witnesses viz. Jafar Mohammed brother of respondent Samir Jiker Gohil Manager of Nile Industries and other witnesses of Angadias Firms concluded that none of the statements allege anything incriminating against the respondent. The learned Single Judge further observed that “ neither the angadiyas nor the cheque discounters who admittedly were recipients of huge cash payments for further transfer to other companies alleged any dealing or transaction with the petitioner much less any incriminating transaction”. There was huge flow of money into the account of the respondent and Nile Trading Corporation and also to his brother Jafar Mohammed. During trial it is for the prosecution to show how these money transactions are linked to establish that the respondent was collecting money from remitters and transmitting the same to Prafulbhai Patel through Angadias. At the stage of issue of process the court is not required to go into the merits of the evidence collected and examine whether they are incriminating the accused or not. 48. The learned Single Judge extracted the statement of Angadias in extenso and observed that the representatives of S. Babulal Angadia and P. Umeshchandra whose names are appearing in the statements of Prafulbhai Patel also did not reveal any such transaction with the respondent herein Likewise the learned Single Judge also referred to the banking transactions and observed that the bank statements of the respondent and his brother do not show commission of any offence lodged against the respondent even on prima facie basis. As discussed earlier at the stage of issuance of process sufficiency of evidence or otherwise is not to be seen. Meticulous consideration of the statement of witnesses and other materials produced is unfolded. The above materials produced by the prosecution ought not to have been brushed aside by the learned Single Judge to quash the order of issuance of summons to the respondent accused. As to whether these evidence are sufficient to sustain the conviction of the respondent accused or whether he has a plausible defence or explanation is the matter to be considered at the stage of trial. The learned Single Judge ought not to have weighed the merits of the case at the initial stage of issuance of summons to the accused.” In view of the aforesaid facts no relief can be extended to the petitioners. Accordingly this criminal miscellaneous petition stands Ajay (Sanjay Kumar Dwivedi J

Conditions of service of government servants are governed by the rules issued by the government: Patna High Court

In the absence of rules regarding the right of a government servant, the order given to her/him which govern the service conditions will define such rights. The High Court of Patna bench consisting of J. Chakradhari Sharam Singh, in the matter of Nagendra Bhagat S/o Late Ram Rattan Bhagat v. The State of Bihar and Ors. [Civil Writ Jurisdiction Case No. 2549 of 2016], reiterated Rule 103 of the Bihar Service Code, 1952. The petitioner had submitted an application pursuant to which he was appointed by Chief Engineer (Irrigation), Dehri Camp, Patna to be in a Class-IV post in Irrigation Department. The petitioner made an application seeking promotion to Class-III post after which an Executive Engineer ordered the petitioner to do khatayani work which was always done by a Class-III employee. The petitioner stated that since he was made to discharge work which was ordinarily performed by a Class-III employee, he was entitled to the salary admissible for Class-III post. He again claimed such a salary when he was asked to perform the duty of Revenue Collection which he duly discharged. With this plea, the petitioner claimed that he is entitled for pay admissible to a Class-III employee under the State Government on the principles of equal pay for equal work. It was stated in the counter affidavit that if some employees were literate and could issue ‘receipts’ then the department could utilize their work performed by the persons holding Class-III posts. It was a stop gap arrangement in the interest of work and for that there was no provision for payment of extra emolument to the employees. It was in that background a decision was taken that such employees who were literate and were able to issue receipts could be engaged in the work of collection of tax/revenue. It was further mentioned that such employees who were not literate and who could not be adjusted as Peon, their services would be terminated after giving them notice. The counsel for the petitioner, relying on Sabha Shankar Dubey v. Divisional Forest Officer [AIR 2019 SC 220], argued that the petitioner could not be denied the salary admissible to a Class-III employee since admittedly the work which he had performed for the period in question were to be performed by a Class-III employee and invoked principles of equal pay for equal work.

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.25416 Nagendra Bhagat S o Late Ram Rattan Bhagat Resident of Village Aakopur P.S. Rampur Chauram District Arwal ... Petitioner s The State Of Bihar and Ors Principal Secretary Water Resources Department Government of Bihar Sichai Bhawan Patna. The Chief Engineer Water Resources Department Aurangabad Zone Aurangabad. Suoerintending Engineer Water Resources Department Aurangabad. Executive Engineer Water Resources Department Daudnagar Aurangabad. ... Respondent s For the Petitioner s For the Respondent s CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN CAV JUDGMENT Mr.Pramod Kumar Singh Ms. Archna Meenakshee G.P. 6 Date : 13 11 2020 It is a fundamental principle of service jurisprudence that the conditions of service of Government servants are governed by the rules or orders issued by the appropriate Government. In the absence of rules the right of a government servant is to be determined on the basis of orders which govern their service conditions. The Bihar Service Code 1952 hereinafter referred to as ‘the Code’) define inter alia the conditions under which salaries and other allowances are earned by service under the State 2. Keeping in mind the said legal principle and the Patna High Court CWJC No.25416 dt.13 11.20 provisions under the Code the Court is required to examine legitimacy of the petitioner’s claim of salary of a Class III employee while substantively holding a Class IV post under the 3. I have heard Mr. Pramod Kumar Singh learned counsel for the petitioner and Ms. Archna Meenakshee learned Government Pleader No.6 representing the State of Bihar 4. It would be apt to take note of the facts first as pleaded in the writ application and in the counter affidavits filed on behalf of the respondents 5. It is the petitioner’s case that pursuant to notices inviting applications for appointment against Class IV posts in Irrigation Department Government of Bihar he had submitted his application and he was finally appointed by an order issued on 04.12.1981 by Chief Engineer Dehri Camp Patna. In 1990 he made an application seeking his promotion to Class III post. He again submitted his representation for promotion in 1991. Subsequently the Executive Engineer Water Resource Department Daudnagar came out with an office order asking the petitioner to do khatayani work. It is the petitioner’s case that khatayani work is performed by a Class II employee and not by a Class IV employee. It is petitioner’s further case Patna High Court CWJC No.25416 dt.13 11.20 that since he was made to discharge such functions which are ordinarily performed by a Class III employee he was entitled to salary admissible for a Class III post. It is his further case that subsequently by letter dated 11.03.2010 issued by the Chief Engineer Water Resource Department Aurangabad Zone Aurangabad he was asked to perform the duty of Revenue Collection which duty also he duly discharged. He again represented before the authorities claiming salary admissible to the said Class III post agasinst which he was discharging his duties. Subsequent thereto in 2013 when an incumbent to the post of Revenue Inspector was due to retire the petitioner was asked to assume his charge by an office order dated 08.08.2012 issued by the Executive Engineer wherein the Court noticing the provisions under Rule 103 of the Code held the petitioner of that case entitled to 20% additional pay of the substantive pay of the post which the petitioner of that case was holding. Another Division Bench decision of this Court in case of Chairman State Power Holding Company Ltd. vs. Ganesh Lal reported in 2017(4 PLJR 282 has been referred to by Mr. Singh 9. As I have noted at the very outset the terms and conditions of service of a Government servant is dependent upon the rules governing their service conditions. This is not in dispute that the Code defines the conditions under which salaries and other allowances are earned by service under the State Government. Rule 103 of the Code lays down the determination of pay of the Government servant in case he is asked to hold substantively as a temporary measure or to officiate in two or more independent posts at one time. Rule 103 of the Code in my opinion is at the centre of the issue for the determination of the present case and is therefore being Patna High Court CWJC No.25416 dt.13 11.20 reproduced herein below: “103. The pay of a Government servant appointed by the State Government to hold substantively as a temporary measure or to officiate in two or more independent posts at one time shall be regulated as follows: a) the highest pay to which he would be entitled if his appointment to one of the posts stood alone may be drawn on account of his tenure of that post b) for each other post he may draw such reasonable pay in no case exceeding half the pay overseas pay) of the post as the State Government may fix and c) If a compensatory allowance is attached to one or more of the posts he may draw such compensatory allowance as the State Government may fix provided that such allowance shall not exceed the of compensatory allowance attached to all the posts.” Note 1. The expression “independent posts” used in this rule means posts which are Patna High Court CWJC No.25416 dt.13 11.20 independent of one another i.e posts the incumbent of one of which is not expected to do the duties of 10. Interpretation of Rule 103 of the Code had fallen for consideration by a Division Bench of this Court in case of Md. Masood Yusuf Vs State of Bihar and others reported in 2012(4) PLJR 996. Taking into account the note below Rule 103 of the Code the Division Bench on considering the said provision held in paragraph 19 as under: “19. In order of claim benefit under Rule 103 of the Bihar Service Code an employee has to establish that he was holding two or more “independent posts”. The expression “independent posts” has been clarified in note 1 as quoted above. The State of Bihar vide Memo No. 1479F dated 30.12.1968 had issued a clarification on the grant of additional pay under Rule 103 of the Bihar Service Code. While clarifying the position it has been specifically mentioned in the above mentioned letter that the additional post duties of which are combined should not be on Patna High Court CWJC No.25416 dt.13 11.20 the same establishment or office and should not fall in the line of normal promotion. Citing example it says that the post of under Secretary Deputy Secretary Deputy Directors Deputy Commissioner Accountants Assistants and Clerks in the same office or establishment are not independent of each other for the purpose of the rule However in the present case there is no whisper in either of the writ applications filed by Md. Masood Yusuf and Md. Mojibur Rahman that the post of District Malaria Officer which they claimed to have held in officiating capacity was independent or the duties of the Assistant Malaria Officer which they were holding substantively. For this reasons also we find that the petitioners cannot claim benefit of Rule 103 of the Bihar Service code to claim the pay admissible to the post of District Malaria Officer.” 11. The said Division Bench judgment in case of Md. Masood Yusuf in my opinion applies with full force in the present case. The condition of service of principles of any service are Patna High Court CWJC No.25416 dt.13 11.20 governed by statutory rules and orders lawfully made in the absence of rules to cover the area which has not been specifically covered by the Rules as has been clearly held in case of Syed T.A. Naqshdandi and others vs. State of Jammu and Kashmir reported in 2003) 9 SCC 592has no application in the present set of facts. In Sabha Shankar Dubey the appellants were daily rated workers employed in Group B posts. They had filed a writ petition before the High Court of Allahabad seeking regularization of their services minimum of the pay scale available to their counter part and directing them as being in continued service Their claim seeking direction for regularization and minimum pay scale was rejected by the learned single Judge of this Court holding that such direction could not be issued in exercise of power under Article 226 of the Constitution of India. Appeals preferred before Division Bench of Allahabad High Court were also dismissed. When the order of the High Court was assailed before the Supreme Court the Supreme Court Patna High Court CWJC No.25416 dt.13 11.20 relaying on its earlier decision in case of State of U.P and others Vs. Putti Lal reported in 9 SCC 337 held that they were entitled to minimum of pay scales as long as they continued in his service. The decision in case of Sabha Shankar Dubey has also no application in the present case which is governed by rules viz Bihar 13. In the present case the right of the petitioner to claim salary of higher post is to be examined in the background of service rules governing his service conditions. It is well settled principle that judgments on service law are to be understood in the context of relevant service Rules5 SCC 545the relief which the petitioner is seeking cannot be granted. The said Division Bench decision is Patna High Court CWJC No.25416 dt.13 11.20 subsequent in time to the decision of coordinate Bench of this Court in case of Birendra Rao (supra 15. I therefore do not find any merit in this application which is accordingly dismissed (Chakradhari Sharan Singh J

Alleged of abetment to suicide, torture, and assault the petitioner was denied pre-arrest bail by the court: High Court of Patna

Petitioner alleged torture and assault to the deceased led to him committing suicide. The Court in the light of all facts and circumstances denied the bail to the petitioner as she was the sole in charge of the house and had 2 other children as well who were her own children which means that the allegations were believable. The Hon’ble High Court of Patna before Justice Mr. Ahsanuddin Amanullah in the matter Gunjan Devi v. The State of Bihar[Criminal Miscellaneous No.25919 of 2021].  The facts of the case were that the petitioner was apprehended arrest in connection with Case, instituted under Sections 306/34 of the Indian Penal Code. It was alleged that the petitioner was the stepmother of the deceased and she along with the deceased father used to torture and assault the informant and his deceased brother which led to him committing suicide. The Learned Counsel for the Petitioner contended that the petitioner is a young lady and had married the informant’s father 18 years back and had no role in the suicide of the deceased. It was submitted that the informant, deceased, and another brother had not accepted the petitioner. Learned senior counsel submitted that in fact, it was the deceased and his two brothers, including the informant, who used to torture her for which she has filed Informatory Petition a few years back. In the informatory petition, it was mentioned that they may kill her as well. It was submitted that there is no allegation of any abetment of suicide against the petitioner. The Additional Public Prosecutor summed up and submitted that it was very obvious that the father has married the lady because of his own choice despite the huge age difference between both of them. It was also obvious that the second wife after the birth of her own children doesn’t treat the children of the first wife with the same care and love thus the allegations are deemed to be real and obvious as well as believable. It was further submitted that in the informatory petition itself it has been stated that the husband of the petitioner used to work outside and it was the petitioner who was responsible for maintaining the house. It was submitted that this further makes it clear that she was in charge of the house. It was contended that the deceased had no other reason for taking his own life apart from being treated badly by the petitioner especially keeping in mind that the father used to stay outside the home and the petitioner was the sole in charge of the house and children. The Hon’ble High Court of Patna held,” Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, the Court finds that the allegations made cannot be said to be false, unfounded or unbelievable. Rather, in the present scenario and the facts and circumstances which have been placed before the Court, the allegations appear to be natural and cannot be brushed aside, especially at this stage.” The court hence denied the pre-arrest bail and the petition was dismissed

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No.259121 Arising out of PS. Case No. 533 Year 2020 Thana BARHARA District Bhojpur Gunjan DeviWife of Ashok Kumar Singh R oVillage Farhada P.S. BarharaDist. Bhojpur The State of Bihar ... Petitioner s ... Opposite Party s For the Petitioner s Mr. Surendra Kumar Singh Senior Advocate with Mr. Praveen Prakash Advocate Mr. Jharkhandi Upadhyay APP For the State CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH Date : 10 08 2021 The matter has been heard via video conferencing 2. The case has been taken up out of turn on the basis of motion slip filed by learned counsel for the petitioner on 28.07.2021 which was allowed 3. Heard Mr. Surendra Kumar Singh learned senior counsel along with Mr. Praveen Prakash learned counsel for the petitioner and Mr. Jharkhandi Upadhyay learned Additional Public Prosecutorfor the State 4. The petitioner apprehends arrest in connection with BarharaPS Case No. 5320 dated 08.12.2020 instituted under Sections 306 34 of the Indian Penal Code 5. The allegation against the petitioner is that she being the step mother of the deceased along with father of the deceased Patna High Court CR. MISC. No.259121 dt.10 08 2021 used to torture and assault the informant and his deceased brother which led to the deceased committing suicide 6. Learned senior counsel for the petitioner submitted that she is a young lady and was married eighteen years ago to the widower father of the informant and has no role in the suicide of the deceased. It was submitted that the informant deceased and another brother had not accepted the petitioner. Learned senior counsel submitted that in fact it was the deceased and his two brothers including the informant who used to torture her for which she has filed Informatory Petition No. 3832 of 2016 on 25.11.2016 against the informant expressing that he may kill her He submitted that the petitioner besides being a lady has two minor children and has no role in the deceased committing suicide It was submitted that there is no allegation of any abetment of suicide against petitioner. 7. Learned APP submitted that it is obvious that there was huge age difference between the father of the deceased and the petitioner which indicates that the father of the informant deceased had married due to self choice despite such a huge gap and further that it is obvious that the step mother specially after the birth of her own children does not treat the children from the first wife with the same care and love and thus the allegation is very natural and believable. It was further submitted that in the informatory petition itself it has been stated that the husband of the petitioner Patna High Court CR. MISC. No.259121 dt.10 08 2021 used to work outside and it was the petitioner who was responsible for maintaining the house. It was submitted that this further makes it clears that she was in charge of the house and obviously because of maltreatment the deceased had taken the extreme step It was submitted that there is no reason for the deceased to take his life if the petitioner was treating them well especially in view of the father not living in the house and working outside. 8. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties the Court finds that the allegations made cannot be said to be false unfounded or unbelievable. Rather in the present scenario and the facts and circumstances which have been placed before the Court the allegations appear to be natural and cannot be brushed aside especially at this stage 9. For reasons aforesaid the Court is not inclined to grant pre arrest bail to the petitioner 10. Accordingly the petition stands dismissed (Ahsanuddin Amanullah J

The Court should not interfere with the invocation or encashment of a bank guarantee so long as the invocation was in terms of the bank guarantee : Delhi High Court

Encashment of bank guarantee of a party cannot be interfered by the Court unless and until there is a discrepancy in the terms of invocation of the bank guarantee This was held in the judgment passed by a two-bench judge comprising Hon’ble JUSTICES Mr VIPIN SANGHI and MR. JUSTICE JASMEET SINGH, in the matter SPML INFRA LTD V. HITACHI INDIA (P) LTD. AND ANR, dealt with an issue where the petitioner filed an appeal challenging the order dated 23rd July, 2021 passed by Learned District Judge, Commercial Court. The Trial Court has passed an ex parte ad-interim status quo order as regards the encashment of Respondent’s No. 2 Bank Guarantees for Rs.16,20,000/-in an application filed by Respondent No. 1 under Section 9 of the Arbitration and Conciliation Act, 1996. Counsel for the appellant states that the Bank Guarantee was invoked as the Respondent no.1 had not extended the said Bank Guarantee up to 31st March, 2022. Counsel for the respondents state that the Bank Guarantee in question has been extended till 31st March, 2022. Let the original extended Bank Guarantee be furnished to the learned counsel for the appellant within a week. Counsel for respondent, states that he would like to press for an injunction order before the trial court restraining the appellant from encashing the Bank Guarantee in question during its validity period. In support of his contention, he draws this Court’s attention to learned Single Judge’s order dated 22nd July, 2021, passed in a similar matter between the same parties. Prima facie this Court is of the opinion that Bank Guarantees are not furnished for being photo framed and kept in a drawing room. The learned Single Judge in the order dated 22nd July, 2021, has advisedly used the expression that ‘the order has been passed in view of the consensus arrived at between the parties’. There is no judicial finding that a Bank Guarantee cannot be encashed during its validity.

FAO129 2021 IN THE HIGH COURT OF DELHI AT NEW DELHI SPML INFRA LTD Appellant Through: Mr. Sayan Ray & Mr. Parag Chaturvedi Advocates. HITACHI INDIALTD. AND ANR Respondents Through: Mr. Prasouk Jain with Ms. Rabiya Thakur Advocates. Mr. Ateev Mathur Advocate for Respondent No.2Date of Decision: 27th August 2021 HON BLE MR. JUSTICE MANMOHAN HON BLE MR. JUSTICE NAVIN CHAWLA JUDGMENT MANMOHAN J:The hearing has been done by way of video conferencing. CM APPL.28298 2021 Exemption allowed subject to all just exceptions. Accordingly application stands disposed of. FAO129 2021 & CM APPL. 28297 2021 Present appeal has been filed challenging the order dat ed 23 r d Ju ly 2021 passed by Learned District Judge Commercial Court 02 South East District Saket District Courts in OMP(I) No. 192 2021 whereby the Trial Court has passed an ex parte ad in terim st atus FAO129 2021 Digitally Signed By:JASWANTSINGH RAWATSigning Date:28.08.202122:49:41Signature Not Verified quo order as regards the encashment of Respondent’s No. 2 Bank Guarantees for Rs.16 20 000 in an application filed by Respon dent No. 1 under Section 9 of the Arbitration and Conciliation Act 1996. Learned counsel for the appellant states that the Bank Guarantee was invoked as the Respondent no.1 had not extended the said Ban k Guarantee up to 31st March 2022. of Respondent no.2. Issue notice. Mr. Prasouk Jain Advocate accepts notice on behalf of Respondent no.1 and Mr. Ateev Mathur Advocate accepts notice on beh alf Learned counsel for the respondents state that the Bank Guarantee in question has been extended till 31st March 2022. Let the original extended Bank Guarantee be furnished to the learned counsel for the appellant wit hin a week. In view of the aforesaid statement this Court was inclined to dispose of not only the appeal but also the Section 9 petition filed by the respon dent no.1. However Mr. Jain learned counsel for respondent no.1 states t hat h e would like to press for an injunction order before the trial court restraining the appellant from encashing the Ban k Guarantee in qu estion du ring it s validity period. In support of his contention he draws this Court’s attention to learned Single Judge’s order dated 22nd July 2021 passed in a sim ilar matter between the same parties. Prima facie this Court is of the opinion that Bank Guarantees are n ot furnished for being photo framed and kept in a drawing room . Th e learned Single Judge in the order dated 22nd July 2021 has advisedly used the expression that ‘the order has been passed in view of the consensus arrived at between the parties’. There is no judicial finding that a Ban k Gu arantee FAO129 2021 Digitally Signed By:JASWANTSINGH RAWATSigning Date:28.08.202122:49:41Signature Not Verified cannot be encashed during its validity. In our view the Court cannot injunct encashment of a bank guarantee during its validity if a cause of action arises in future. Bank guarantee h as a meaning and legal sanctity attached to it. The Supreme Court in U.P. Cooperative Federation Ltd. vs. Singh Consultants and Engineers Ltd. 1 SCC 174 has held that bank guarantees m ust be h onoured free form interference by Courts otherwise trust in commerce internal an d international would be irreparably damaged. Recently in Andhra Pradesh Pollution Control Board vs. CCL Products Limited 2019 SCC OnLine SC 985 the Supreme Court has held as under: “23. The settled legal position which has emerged from the precedents of this Court is that absent a case of fraud irretrievable injustice and special equities the Court should not interfere iwth the invocation or encashment of a bank guarantee so long as the invocation was in terms of the bank guarantee.” However learned counsel for the respondent no.1 insists on arguing the matter and showing some documents. Respondent no.1 is given an opportunity to file whatever documents he wishes to rely upon within a List on 13th September 2021. 10. The order be uploaded on the website forthwith. Copy of the order be also forwarded to the learned counsel through e mail. MANMOHAN J week. NAVIN CHAWLA J AUGUST 27 2021 AS FAO129 2021 Digitally Signed By:JASWANTSINGH RAWATSigning Date:28.08.202122:49:41Signature Not Verified

The initial burden of the accused’s guilt should be discharged by the prosecution for Section 106 of IEA: High Court of Patna

Section 106 of the Indian Evidence Act cannot be attracted unless the initial burden of establishing the guilt of the accused is prima facie discharged by the prosecution and the same was upheld by High Court of Delhi through the learned bench led by JUSTICE SUNIL KUMAR PANWAR in the case of Birendra Yadav vs. State Of Bihar [CRIMINAL APPEAL (DB) No.87 of 2014] on 10.03.2022. The facts of the case that the appellant Birendra Yadav is resident of village Jhouwari in Purnea District of Bihar. Maharani Devi (since deceased) was daughter of Sunaiyna Devi. As the appellant and Maharani Devi (since deceased) were having their respective houses just opposite to each other, love relations between them developed and ultimately, Maharani Devi married appellant Birendra Yadav. According to the prosecution case, out of this wedlock, Maharani Devi gave birth to a female child named Madhu Kumari (since deceased), who at the relevant time was aged about three years. It is case of the prosecution that appellant Birendra Yadav used to beat his wife Maharani Devi. After such incident, meeting of the Panchayat was called. Because of this incident, appellant accused Birendra Yadav became angry. Ultimately, appellant Birendra Yadav had committed murder of his wife Maharani Devi and his daughter Madhu Kumari by throttling. After committal of the case, charge for the offence punishable under Section 302 of the Indian Penal Code came to be framed and explained to appellant accused. He pleaded not guilty and claimed to be tried. The counsel for appellant argued that there is no evidence to connect the appellant to the crime in question and evidence of Sunaiyna Devi is totally unreliable and untrustworthy. Relying on the provisions of Section 106 of the Indian Evidence Act, the learned Prosecutor argued that appellant accused is presumed to have committed murder of his wife and the daughter. He has not explained how they died in his house and therefore the appeal deserves to be dismissed. The Court held that provisions of Section 106 of the Indian Evidence Act has no application to the facts of the instant case because initial burden of proving the facts that appellant had committed murders of his wife and daughter is not discharged by the prosecution. Therefore, in absence of any prima facie evidence against the appellant, Section 106 of the Indian Evidence Act has no application in the instant case and the appellant was acquitted of the offence punishable under Section 302 of the Indian Penal Code. The Court observed that, “section 106 of the Indian Evidence Act cannot be attracted unless the initial burden of establishing the guilt of the accused is prima facie discharged by the prosecution.”

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEALNo.814 Arising Out of PS. Case No. 130 Year 2011 Thana BANMANKHI District Purnia Birendra Yadav S O Natho Yadav Resident Of Village Jhouwari P.S Banmankhi District Purnea The State Of Bihar ... Appellant ... Respondent Mr. Praveen Kumar Agrawal Advocate Mr. S.N. Prasad A.P.P For the Appellant For the State CORAM: HONOURABLE MR. JUSTICE A. M. BADAR and HONOURABLE MR. JUSTICE SUNIL KUMAR PANWAR Per: HONOURABLE MR. JUSTICE A. M. BADAR Date : 10 03 2022 By this appeal the appellant convicted accused is challenging the Judgment and Order dated 29.11.2013 and 30.11.2013 respectively passed in Sessions Trial No.3212 by the Adhoc Additional Sessions Judge V Purnea thereby convicting him of the offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for life apart from directing him to pay fine of Rs.10000 and in default to undergo simple imprisonment for 2. Facts leading to the prosecution of the appellant convicted accused can be summarized thus Patna High Court CR. APPNo.814 dt.10 03 2022 a). Appellant Birendra Yadav is resident of village Jhouwari within jurisdiction of Police Station Banmankhi in Purnea District of Bihar. P.W.11 Sunaiyna Devi is also the resident of the same village and her house was located just in front of house of appellant Birendra Yadav. Maharani Devi since deceased) was daughter of P.W.11 Sunaiyna Devi. As the appellant and Maharani Deviwere having their respective houses just opposite to each other love relations between them developed and ultimately in the year 2006 Maharani Devi married appellant Birendra Yadav b). According to the prosecution case out of this wedlock Maharani Devi gave birth to a female child named Madhu Kumariwho at the relevant time was aged about three years. It is case of the prosecution that appellant Birendra Yadav used to beat his wife Maharani Devi After such incident in the year 2009 meeting of the Panchayat was called. Because of this incident appellant convicted accused Birendra Yadav became angry. Ultimately at about 03.00 P.M. of 31.08.2011 appellant Birendra Yadav had committed murder of his wife Maharani Devi and his daughter Madhu Kumari by throttling. c). According to the prosecution many villagers Patna High Court CR. APPNo.814 dt.10 03 2022 from village Jhouwari rushed to the house of P.W.11 Sunaiyna Devi and informed her about the murders of her daughter Maharani Devi and her granddaughter Madhu Kumari. P.W.11 Sunaiyna Devi then rushed to the house of appellant Birendra Yadav and saw dead bodies of Maharani Devi and Madhu Kumari kept at the front yard of the house of appellant Birendra Yadav. She noticed injuries on necks of the dead bodies. She therefore lodged the F.I.R. on 31.08.2011 itself which has resulted in registration of the subject crime for the offence punishable under Section 302 of the Indian Penal Code d). During the course of investigation the Investigator has recorded the statements of the witnesses Inquest notes were taken after inspecting dead bodies. Those were then sent for post mortem examination to the Sadar Hospital Purnea where autopsy came to be conducted by P.W.10 Dr. Umesh Kumar. On completion of investigation the appellant came to be charge sheeted e). After committal of the case charge for the offence punishable under Section 302 of the Indian Penal Code came to be framed and explained to appellant convicted accused. He pleaded not guilty and claimed to be tried. His defence was that of total denial and in support the defence has Patna High Court CR. APPNo.814 dt.10 03 2022 examined in all four witnesses f). After hearing the parties the learned trial court concluded that appellant Birendra Yadav committed murder of his wife Maharani Devi and his daughter Madhu Kumari Accordingly the appellant came to be convicted and sentenced as indicated in the opening paragraphs of this Judgment 3. We heard the learned counsel appearing for the appellant. He argued that there is no evidence to connect the appellant to the crime in question and evidence of P.W.11 Sunaiyna Devi is totally unreliable and untrustworthy. As against this relying on the provisions of Section 106 of the Indian Evidence Act the learned Prosecutor argued that appellant convicted accused is presumed to have committed murder of his wife and the daughter. He has not explained how they died in his house and therefore the appeal deserves to be 4. We have considered the submissions so advanced and also perused the records and proceedings 5. At the outset let us examine whether Maharani Devi and Madhu Kumari died homicidal death on 31.08.2011 P.W.11 Sunaiyna Devi the first informant has categorically stated that her daughter Maharani Devi and granddaughter Patna High Court CR. APPNo.814 dt.10 03 2022 Madhu Kumari died in the incident. This fact is not disputed by the defence. On the contrary it is defence of the appellant that the deaths are suicidal deaths 6. Evidence of P.W.13 Rajesh Kumar Singh the Investigating Officer shows that he had dispatched dead bodies of Maharani Devi and Madhu Kumari for autopsy to the Sadar Hospital Purnea. P.W.10 Dr. Umesh Kumar had conducted the post mortem examination on those dead bodies. It is in evidence of P.W.10 Dr. Umesh Kumar that during the course of post mortem examination he noticed ligature marks around necks of dead bodies of Maharani Devi and Madhu Kumari. Similarly he noticed fracture of hyoid bones thyroid cartridge and tracial rings of the dead bodies under autopsy. This Medical Officer has also noticed laceration around the ligature marks on necks of dead bodies. With this finding P.W.10 Dr. Umesh Kumar concluded that Maharani Devi and Madhu Kumari died because of asphyxia caused due to strangulation. Now the question for determination will be whether deaths of Maharani Devi and Madhu Kumari occurring on 31.08.2011 are proved to be homicidal death caused by appellant Birendra Yadav. Let us scan the evidence on record for finding the answer to this Patna High Court CR. APPNo.814 dt.10 03 2022 7. In order to prove the fact that the appellant convicted accused had committed murders of his wife and daughter the prosecution has examined in all 13 witnesses a). P.W.1 Ganesh Yadav co villager b). P.W.2 Raj Kishore Yadav co villager c). P.W.3 Praveen Kumar Choudhary resident of neighbouring village who turned hostile d). P.W.4 Lal Bahadur Yadav a co villager who turned hostile to the prosecution e). P.W.5 Rajendra Prasad Yadav a co villager who turned hostile to the prosecution f). P.W.6 Sanjay Paswan a co villager who turned hostile to the prosecution g). P.W.7 Tilak Chand Yadav a co villager who turned hostile to the prosecution h). P.W.8 Anil Kumar Yadav a co villager who turned hostile to the prosecution i). P.W.9 Prawesh Kumar Yadav a co villager who turned hostile to the prosecution j). P.W.10 Dr. Umesh Kumar Medical Officer Sadar Hospital Purnea k). P.W.11 Sunaiyna Devi the first informant l). P.W.12 Rajo Paswan a co villager m). P.W.13 Rajesh Kumar Singh Station House Officer Banmankhi Police Station who recorded the F.I.R. and conducted the Patna High Court CR. APPNo.814 dt.10 03 2022 In rebuttal the defence has examined the following A). D.W.1 Md. Alauddin a co villager B). D.W.2 Yogendra Yadav a co villager C) . D.W. 3 Anil Kumar Yadav a co villager D). D.W.4 Salauddin Ansari a co villager 8. At the out set it needs to mention here that P.W.3 Praveen Kumar Choudhary P.W.4 Lal Bahadur Yadav P.W.5 Rajendra Prasad Yadav P.W.6 Sanjay Paswan P.W.7 Tilak Chand Yadav P.W.8 Anil Kumar Yadav and P.W.9 Prawesh Kumar Yadav have turned hositle to the prosecution and there is nothing in their evidence to incriminate the appellant in the subject crime. Their evidence is not of any use to the prosecution. They have spoken about the love marriage of the appellant with deceased Maharani Devi. So far as P.W.1 Ganesh Yadav and P.W.2 Raj Kishore Yadav are concerned these co villagers have stated that after love marriage of Maharani Devi with appellant Birendra Yadav there used to be occasional quarrel amongst the couples on account of financial crunch. P.W.1 Ganesh Yadav has deposed that Maharani Devi died suicidal death as her mother P.W.11 Sunaiyna Devi told her Patna High Court CR. APPNo.814 dt.10 03 2022 that after third cesarean she will not be in a position to give birth to a child. P.W.2 Raj Kishore Yadav has also deposed that the deaths are suicidal in nature and that the appellant had not committed murder of Maharani Devi and Madhu Kumari. He has also stated that because of this incident P.W.11 Sunaiyna Devi was cursing the appellant that he should die and he will not get bail. Thus evidence of these two witnesses is also of no use to the prosecution and rather it is casting a shadow of doubt on the prosecution case. P.W.12 Rajo Paswan has feigned ignorance about the incident 9. So far as evidence of the Investigating Officer P.W.13 Rajesh Kumar Singh is concerned he stated that he recorded the First Information Report lodged by P.W.11 Sunaiyna Devi and then registered Crime No.130 of 2011 against the appellant. He deposed about the line of investigation conducted by him. However cross examination of this witness is relevant. He has stated that he noticed dead bodies of Maharani Devi and Madhu Kumari lying at the spot. The Investigating Officer further stated that dead bodies were in a house made of mud which was not having any door or window It implies that the house was accessible to all and sundry. Thus the Investigating Officer has also not clarified as to whether he Patna High Court CR. APPNo.814 dt.10 03 2022 noticed the noose if any used for strangulating the victims for commission of murder. In fact the prosecution has not clarified as to how and in what circumstances the offence took place. It is not brought on record by the prosecution by furnishing cogent evidence as to how and at what spot the dead bodies were hanging to the noose in the light of the evidence of P.W.10 Dr Umesh Kumar to the effect that there were ligature marks around the necks of the dead bodies 10. What remains now so far as the side of the prosecution is concerned is evidence of first informant P.W.11 Sunaiyna Devi mother of the deceased Maharani Devi. This witness has lodged the F.I.R. which according to P.W.13 Rajesh Kumar Singh the Investigating Officer was recorded correctly by him. Perusal of the F.I.R. lodged by this witness makes it clear that she is not an eye witness to the incident. She reported to the police vide her F.I.R. which was lodged with promptitude that at about 03.00 P.M. many people in the village came to her and told her about murder of Maharani Devi and Madhu Kumari. However this first informant had materially improved her version about the incident in her statement before the court She has deposed that she herself had seen appellant Birendra Yadav throttling Maharani Devi and Madhu Kumari. She stated Patna High Court CR. APPNo.814 dt.10 03 2022 that as there was meeting of Panchayat because of beating to Maharani Devi appellant Birendra Yadav committed these murders. P.W.11 Sunaiyna Devi is not the witness of the truth She had materially improved her version in order to show that she is an eye witness to the murder of her daughter and the granddaughter. As per her version murders were committed by constricting necks of Maharani Devi and Madhu Kumari However medical evidence is totally contrary to the version of this first informant. Evidence of P.W.10 Dr. Umesh Kumar shows that the dead bodies were having ligature marks around the neck and laceration was caused because of ligature marks on necks of the dead bodies. Thus evidence of P.W.11 Sunaiyna Devi who is an interested witness cannot be accepted and relied upon. She has modulated her version to suit the case of the 11. It is well settled that the prosecution has to stand on its own legs and it cannot rely on weaknesses if any in the defence. Provisions of Section 106 of the Indian Evidence Act has no application to the facts of the instant case because initial burden of proving the facts that appellant had committed murders of his wife and daughter is not discharged by the prosecution. Section 106 of the Indian Evidence Act cannot be Patna High Court CR. APPNo.814 dt.10 03 2022 attracted unless the initial burden of establishing the guilt of the accused is prima facie discharged by the prosecution. If we see evidence of the prosecution then it is clear that there is no evidence to prove that the appellant was seen at any time before or at the time of the incident or after the incident at the spot of the occurrence. The incident took place at about 03.00 P.M. at the house of the appellant and the deceased which was not having any door or window. It was a day time. Evidence of P.W.11 Sunaiyna Devi and more particularly her F.I.R. shows that it was a populous locality. However evidence regarding presence of the appellant on the scene of the occurrence is totally missing and therefore in absence of any prima facie evidence against the appellant Section 106 of the Indian Evidence Act has no application in the instant case 12. As evidence of the prosecution is not sufficient to convict the appellant of the offence punishable under Section 302 of the Indian Penal Code there is no need to look into the defence evidence. However we have perused the version of the defence witnesses. D.W.1 Md. Alauddin is an agriculturist having a field adjacent to the field of appellant Birendra Yadav He testified that he was in his own field at about 03.00 P.M. of the day of the incident. The appellant at that time was cutting Patna High Court CR. APPNo.814 dt.10 03 2022 the grass in his field. Then message came regarding death of wife and daughter of appellant Birendra Yadav. Therefore he as well as Raj Kishore Yadav accompanied appellant Birendra Yadav to his house and noticed dead bodies of Maharani Devi and Madhu Kumari. There is no material in his cross examination to doubt his version 13. D.W.2 Yogendra Yadav is neighbour. He had rushed to the spot of the incident after hearing the shouts of P.W.11 Sunaiyna Devi. As per his version dead bodies of Maharani Devi and Madhu Kumari were hanging to the noose Appellant Birendra Yadav was not present in the house. He himself opened the noose and rested the dead bodies on the ground. Thereafter as per his version then Birendra Yadav came and started weeping. His evidence is not shattered in the cross examination by the prosecution. 14. D.W.3 Anil Kumar Yadav and D.W.4 Salauddin Ansari had noticed dead bodies lying on the ground at the house of the appellant. Rest of their evidence is regarding what they heard from others 15. This is all on the record. From these evidence on record it cannot be said that the prosecution has proved the fact that the appellant had committed murders of his wife Patna High Court CR. APPNo.814 dt.10 03 2022 Maharani Devi as well as his daughter Madhu Kumari by throttling them. Evidence of the prosecution is lacunic so also 16. In the result we are unable to uphold the impugned Judgment and Order. Therefore the following I). The appeal is allowed II). The impugned Judgment and Order dated 29.11.2013 and 30.11.2013 respectively passed by the Adhoc Additional Sessions Judge V Purnea in Sessions Trial No.3212 is quashed and set aside III). The appellant is acquitted of the offence punishable under Section 302 of the Indian Penal Code. He be set at liberty forthwith if not required in any other case. The fine amount if any paid by him be refunded to him ( Sunil Kumar Panwar J

Article 19 (1) (a) of the Indian Constitution establishes the correlative right to be funny. – Madras High Court

For an act to constitute a crime, there are four stages, i) intention, ii) preparation, iii) attempt and iv) accomplishment. While penal laws intervene only at the third and fourth stages normally, even preparation is made an offence in certain cases. Section 399 of IPC is one such provision. Section 122 IPC is another. Any penal provision must be strictly construed. Application of the provisions which penalize even preparation must meet a higher threshold. These were looked into by the bench of Honourable Mr. Justice G.R. Swaminathan in the case of Mathivanan v. The Inspector of Police & ors (Crl OP(MD)No.18337 of 2021). The crux of the case is the petitioner herein is an important office-bearer of a political party CPI (ML). the petitioner went on a sightseeing pleasure trip with his daughter and son-in-law to Sirumalai hills. He posted photographs taken on the occasion in his Facebook page with caption “Trip to Sirumalai for shooting practice” as a maiden attempt at humour. Vadipatty Police thought the petitioner was preparing to wage war against the State. They registered a case in Crime No.415 of 2021 against the petitioner for the offences under Sections 120B, 122, 505(1)(b) and 507 of IPC and arrested the petitioner and produced him before the jurisdictional magistrate for remanding him to custody. The Judicial Magistrate, Vadipatty, had refused remand, bearing in mind the principles laid down in State v. Nakeeran Gopal (2019 SCC Online Mad 42) and passed a detailed rejection order. This criminal original petition has been filed to quash the FIR itself. The learned counsel for the petitioner reiterated all the contentions set out in the memorandum of grounds and submitted that the very registration of the impugned FIR is an abuse of legal process. Per contra, the learned Additional Public Prosecutor appearing for the respondents submitted that no case for quashing has been made out. The learned bench of Honourable Mr. Justice G.R. Swaminathan observed and stated that “None of the ingredients set out in Section 122, 505(1) (b) and Section 507 are present in this case. Section 120 B of IPC cannot be invoked for two reasons. Firstly, the petitioner is the sole accused. To constitute the offence of conspiracy, there must be a meeting of two or more minds. One cannot conspire with oneself. Secondly, conspiracy is hatched to commit an offence mentioned in the Section. When the ingredients of the primary offences have been shown to be non-existent, the prosecution cannot hang on to Section 120B IPC alone. 13.The very registration of the impugned FIR is absurd and an abuse of legal process. It stands quashed. The criminal original petition is allowed. Connected miscellaneous petition is closed.”

1 Crl OP(MD)No.183321BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED: 17.12.2021CORAMTHE HONOURABLE MR.JUSTICE G.R.SWAMINATHANCrl OP(MD)No.183321andCrl MP(MD)No.100621Mathivanan ... Petitionervs.1.The Inspector of Police Vadipatty Police Station Madurai District. in Article 51 A. Article 51 A states that it shall be the duty of every citizen of India “(a)to abide by the Constitution and respect its ideals and institutions the National Flag and the National Anthem (a) of the Constitution of Indiais now an over ground organization which contests elections also. Paper warriors are also entitled to fantasise that they are swadeshi Che Guevaras. 4.On 16.09.2021 the petitioner herein went on a sightseeing pleasure trip with his daughter and son in law to Sirumalai hills. He put out the photographs taken on the occasion in his Facebook page. He gave the caption “Jg ghf fp gapw rpf fhf 4 12 https: www.mhc.tn.gov.in judis 5 Crl OP(MD)No.183321rpWkiy gazk !”and 507 of IPC. They did not stop at that. They arrested the petitioner and produced him before the jurisdictional magistrate for remanding him to custody. Mercifully Mr.M.C.Arun the Judicial Magistrate Vadipatty had the good sense to refuse remand. Bearing in mind the principles laid down in State v. Nakeeran Gopalhe passed a detailed rejection order. I wish other magistrates in the State of Tamil Nadu act likewise. Remand can never be made for the asking. The police and the prosecution will seek remand in every case. It is for the magistrate to satisfy herself that the arrestee deserves to be remanded. Requests for remand must be 5 12 https: www.mhc.tn.gov.in judis 6 Crl OP(MD)No.183321decided on the touchstone of Section 41 of Cr.Pc and Article 21 of the Constitution. Thanks to the judicious conduct so well exhibited by Shri.M.C.Arunthe petitioner escaped incarceration by a whisker. 6.This criminal original petition has been filed to quash the FIR itself. The learned counsel for the petitioner reiterated all the contentions set out in the memorandum of grounds and submitted that the very registration of the impugned FIR is an abuse of legal process. Per contra the learned Additional Public Prosecutor appearing for the respondents submitted that no case for quashing has been made out. 7.I carefully considered the rival contentions and went through the materials on record. For an act to constitute a crime there are four stages i)intention ii)preparation iii)attempt and iv)accomplishment. While penal laws intervene only at the third and fourth stages normally even preparation is made an offence in certain cases. Section 399 of IPC is one such provision. Section 122 IPC is another. Any penal provision has to be strictly construed. Application of the provisions which penalize even 6 12 https: www.mhc.tn.gov.in judis 7 Crl OP(MD)No.183321preparation must meet a higher threshold. 8.Section 122 of IPC is as follows : “122.Collecting arms etc. with intention of waging war against the Government of India. Whoever collects men arms or ammunition or otherwise prepares to wage war with the intention of either waging or being prepared to wage war against theshall be punished withor imprisonment of either description for a term not exceeding ten years of IPC is as follows : “Whoever makes publishes or circulates any statement rumour or report with intent to cause or which is likely to cause fear or alarm to the public or to any section of the public whereby any person may be induced to commit an offence against the State or against the public tranquility 8 12 https: www.mhc.tn.gov.in judis 9 Crl OP(MD)No.183321(c)....shall be punished with imprisonment which may extend toor with fine or with both.” This provision also can be invoked only if the offending act induces or is likely to induce any person to commit an offence against the State or against the public tranquility. In this case the photographs with the aforesaid caption was posted only in the petitioner s Facebook page. Any normal and reasonable person coming across the Facebook post would have laughed it off. 11.Section 507 of IPC is as follows :“507.Criminal intimidation by an anonymous communication.—Whoever commits the offence of criminal intimidation by an anonymous communication or having taken precaution to conceal the name or abode of the person from whom the threat comes shall be punished with imprisonment of either description for a term which may extend to two years in addition to the punishment provided for the offence by the last preceding section.”Invocation of this provision makes me laugh. Section 507 IPC can 9 12 https: www.mhc.tn.gov.in judis 10 Crl OP(MD)No.183321be invoked only if the person sending the communication had concealed his identity. The communication must be anonymous. In this case the petitioner had posted the photographs along with the caption in his Facebook page. He has not concealed his identity. There is nothing anonymous about the act in question. 12.None of the ingredients set out in Section 122 505(1)(b) and Section 507 are present in this case. Section 120 B of IPC cannot be invoked for two reasons. Firstly the petitioner is the sole accused. To constitute the offence of conspiracy there must be a meeting of two or more minds. One cannot conspire with oneself. Secondly conspiracy is hatched to commit an offence mentioned in the Section. When the ingredients of the primary offences have been shown to be non existent the prosecution cannot hang on to Section 120B IPC alone. 13.The very registration of the impugned FIR is absurd and an abuse of legal process. It stands quashed. The criminal original petition is allowed. Connected miscellaneous petition is closed. 10 12 https: www.mhc.tn.gov.in judis 11 Crl OP(MD)No.183321 17.12.2021Index : Yes NoInternet : Yes NoskmNote: In view of the present lock down owing to COVID 19 pandemic a web copy of the order may be utilized for official purposes but ensuring that the copy of the order that is presented is the correct copy shall be the responsibility of the advocate litigant concerned.To:1.The Inspector of Police Vadipatty Police Station Madurai District. (Crime No.4121)2.The Inspector of Police Cyber Crime Police Station Madurai City.3.The Judicial Magistrate Vadipatty.11 12 https: www.mhc.tn.gov.in judis 12 Crl OP(MD)No.183321G.R.SWAMINATHAN J.skmCrl OP(MD)No.183321andCrl MP(MD)No.10062117.12.202112 12

Judgement cannot be quashed merely based on irregularity of procedure: Delhi High Court

In a recent judgement dealing with the matter of robbery, the High Court of Delhi held that irregularity in a procedure cannot be a basis for challenging a judgement if it is not established that such an irregularity resulted in failure of justice. The single judge bench consisting of J. Vibhu Bakhru, in the matter of Gulam Jilani @ Kallu and Others v. Govt. of NCT of Delhi [CRL. A. 619/2017 and CRL.M.A. 6306/2020] shed light upon reasonable doubt, TIP and Section 267 of the Code of Criminal Procedural, 1973. The appellants in this matter were previously convicted by the Trial Court for committing an offence punishable under Section 392/34 of the Indian Penal Code, 1860. They were sentenced to rigorous imprisonment for a period of 7 years along with Rs.3,000/- fine each ,the default of which would attract an additional 3 months of simple imprisonment. The appellants were originally charged under Section 392/411/34 of the IPC. The Trial Court acquitted them under all charges except Section 392, IPC, as the court held that the prosecution had not established that the good recovered from the appellants were those that were stolen. Further, it was observed that the complainant, who claimed to be the eyewitness, had various inconsistencies in his statements. In the view of the patchy evidence relating to the goods recovered from the accused, the Trial Court had acquitted the appellants under Section 411 of the IPC, stating that “the prosecution had failed to establish beyond any reasonable doubt that the articles recovered from the possession of the accused were the same articles that were robbed. The court reasoned that the articles recovered were in small quantity; there were no identification marks on the recovered articles and the same were readily available in the market. The said reasoning cannot be faulted”. The present appeal was filed in order to impugn the decision of the Trial Court. While the appellants did not contest about whether the robbery itself had been committed or not, they argued that the prosecution had failed to prove the involvement of the appellants in the commission of the said offence, as their testimonies were inconsistent. Further, the appellants, relying on State (GNCT of Delhi) v. Sandeep [CRL L.P. 620/2019], argued that these testimonies are also unreliable as the accused were shown to the witnesses in the police station, prior to the TIP proceedings. The counsel for the appellants, relying on Harshad S. Mehta v. Central Bureau of Investigation [(1992) 24 DRJ 392], also argued that the police could not use the procedure under Section 267 of the Cr.P.C. for ensuring the attendance of the accused in one case in order to arrest him in another case. The HC, though agreeing with this argument, found that since no such contention was advanced before the Trial Court, it was clearly an afterthought. Adding to this, the court also held that “even if the contention that the procedure under Section 267 of the Cr.PC ought not to have been invoked to produce the appellants before the learned MM for the purposes of their arrest in the present case, is accepted, the appellants have failed to establish that they were unfairly prejudiced by the same. In terms of Section 465 of the Cr.PC, the impugned judgment convicting the appellants cannot be called into question on account of any irregularity in procedure unless it is established that the same resulted in the failure of justice”.

IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on: 09.11.2020 CRL. A. 619 2017 and CRL.M.A. 6306 2020 GULAM JILANI @ KALLU GOVT. OF NCT OF DELHI Appellant Respondent Advocates who appeared in this case: For the Appellant For the Respondent Mr Kanhaiya Singhal Mr Prasanna and Mr Ajay Kumar Advocates. Mr Amit Gupta APP for State. AND CRL.A. 620 2017 & CRL.M.A. 34451 2019 CRL.M.A. 9008 2020 CRL.M.A. 9009 2020 && CRL.M.A. 9010 2020 SANDEEP Appellant GOVT. OF NCT OF DELHI Advocates who appeared in this case: For the Appellant For the Respondent Respondent Mr Adit S. Pujari AdvocateMr Chaitanya Sundriyal and Ms Tusharika Mattoo Advocates. Mr Amit Gupta APP for State. CRL. A. 621 2017 and CRL.M.(BAIL)1794 2019 PRADEEP GOVT. OF NCT OF DELHI Appellant Respondent CRL. A. Nos. 619 620 621& 9017 Advocates who appeared in this case: For the Appellant For the Respondent Mr Kanhaiya Singhal Mr Prasanna and Mr Ajay Kumar Advocates. Mr Amit Gupta APP for State. CRL. A. 900 2017 and CRL.M.(BAIL) 249 2019 KHOKAN @ GUDDU STATEAdvocates who appeared in this case: For the Appellant Appellant Respondent For the Respondent Mr Anwesh Madhukar and Ms Prachi Nirwan Advocates. Mr Amit Gupta APP for State. HON’BLE MR JUSTICE VIBHU BAKHRU VIBHU BAKHRU J The appellants have filed these appeals impugning a judgment dated 24.05.2017 passed by the learned ASJ 04 Rohini Courts whereby they were convicted for committing an offence punishable under Sections 392 34 of the Indian Penal Code 1860 was also charged with committing an offence punishable under Section 397 of the IPC. The Trial Court acquitted the appellants of all charges other than the charge of committing an offence punishable under Section 392 of the IPC as the court did not believe that the prosecution had established that the goods recovered from the appellants were those that were stolen. Further the complainantresiled from his earlier statement that he had seen the accused Sandeep with the pistol. Before the court he testified that he had seen the said weapon in the hands of the accused Khokhan @ Gudduwhere they met the complainant and recorded his statementof his workers namely Krishan Ishwar @ Mintoo and Rajesh Kumar @ Bangali were sleeping on the duchhati in the office room. In addition two security guards named Arvind and Devnath were on duty outside the office. They were armed with lathis. He alleged that at about 02:00 am one person was seen bringing the two security guards inside the premises on a gunpoint. He brought the guards near them at the duchhati. He stated that the shutter of their office was open and both the security guards were inquiring from the said person as to why they were removing the goods. At that time they noticed that the said person was aged about 20 to 25 years. He was of a medium built and height and was wearing a black jacket. He pointed the pistol towards them and demanded that all of them to continue lie down where they were and threatened that he would shoot them if they did not do so. The complainant further stated that the three miscreants who were loading goods in the tempo in front of the office were also aged CRL. A. Nos. 619 620 621& 9017 between 20 and 25 years. He stated that while they were doing so another tempo which was driven by one Bansi arrived there for transporting goods to Rohtak. He stated that one of the miscreants took the keys of the said tempo and also brought Bansi to them. Thereafter the said miscreants took away three of their mobile phones with nos. 9312281758 9213565850 and 9215800964 as well as the mobile phone of the tempo driver Bansiwere apprehended by the Special Staff South District on the basis of a secret information. Inspector Naresh Kumartestified that on 17.02.2007 he had a secret information on the basis of which they had taken their positions at the given spot. He stated that at about 08:00 pm three of the accused namely Sandeep Khokhan @ Guddu and Gulam Jilani came to the spot on foot and had stood near the corner of the road CRL. A. Nos. 619 620 621& 9017 towards the forest. Five minutes later one Tata tempo 407 came to the spot from the direction of MB Road and had halted there. Two persons alighted from the said tempo including the accused Pradeep. Thereafter all the five persons proceeded towards the forest area. On being pointed out by the secret informer the four accused were apprehended. However their accomplice managed to escape. The accused were arrested in FIR No. 135 2007 under Sections 399 402 of the IPC registered with PS Okhla Industrial Area. He further stated that during the course of investigation relating to the said FIR the accused disclosed their involvement in a number of cases including the present case. On the basis of the disclosure statements certain recoveries were made. In all two sewing machines of the make Kajal twenty eight packets of Boroplus cream and three Power Link UPS were recovered. The Boroplus packets were allegedly recovered at the instance of the accused Pradeep one sewing machine and one Power Link Home UPS were recovered at the instance of the accused Gulam Jhilani one sewing machine was recovered at the instance of the accused Sandeep and one Power Link Home UPS was recovered at the instance of the accused Khokhan @ Guddu. On 19.02.2007 at about 07:20 pm information was received over telephone from the Special Staff that the accused had been arrested in FIR No. 135 07 registered with PS Okhla Industrial Area. Their disclosure statements had been recorded and recoveries had been made pursuant thereto. The said information was entered as DD CRL. A. Nos. 619 620 621& 9017 No. 62B. On receipt of the said DD the IO went to the office of the Special Staff South District New Delhi and collected a photocopy of the FIR bearing No. 135 07 under Sections 399 402 34 of the IPC and Sections 25 54 59 of the Arms Act 1959 registered with PS Okhla New Delhi on 17.02.2007. Along with the same he also collected copies of the arrest memos of the accused the photocopies of the disclosure statements pointing out memos of the accused person and seizure memos of the recovered articles and tempo bearing number DL 1LE 0041. The statement of one of the officials of the Special Staff was recorded under Section 161 of the Cr.PC. The production warrants were sought from the concerned court. The accused were then produced in court on 24.02.2007 and they were formally arrested. Their separate disclosure statements were recorded. On the same day the IO also filed an application for conducting the TIP of the accused but they refused to participate in the TIP proceedings. Thereafter the IO sought for police custody of the accused for a single day which was granted. The IO took the accused to the place of occurrence on 27.02.2007. He recorded the pointing out memo and also recorded the supplementary statements under Section 161 of the Cr.PC. The complainant and Ishwaridentified the accused as the persons who had committed the crime on 27.02.2007. In order to prove its case the prosecution examined twenty one witnesses. The defence did not examine any witnesses. The evidence of the witnesses that were at the spotat the material time are relevant and briefly noted 10. Krishan was examined as PW 6. He stated that in the intervening night of 16.01.2007 and 17.01.2007 he was present at the office of Om Transport Agency along with Rajesh Mintu and Sonu. All four were at the ground floor. Two security guards were also present. At about 2 2:15 a.m. two persons came upstairs along with the guards and one of those persons had a revolver in one hand and a sword in the other. The other person also had a sword in his hand. The two persons pointed the revolver and told him and the other persons to remain quiet. One driver named Bansi came with his tempo. The other persons brought Bansi upstairs and snatched the keys of the tempo. They also deflated the tyres of that tempo. Heidentified the four accused in court. He testified that the accused Pradeep had a revolver and sword and the accused Gulam had a sword in his hand. He stated that accused persons took some cartons of Boroplus aluminium karahi inverters and other cartons which he could not recall. The accused also took their mobile phones. In his cross examination he affirmed that he was not working at the said transport office and he would sleep there at night since the agency belonged to his unclewhere the fact of the sword was not recorded in the same. He stated that Bansi had come after about 15 CRL. A. Nos. 619 620 621& 9017 minutes after the accused persons had started loading the goods. He affirmed that Bansi was brought down from his tempo on knifepoint. He could not recall if he had stated this in his statement to the IO. He stated that Sonu informed the police on a mobile that he had borrowed from the neighbour and that person was present when the police was informed. He affirmed that he had seen the accused persons in court after the incident and not before that. 11. Arvind the security guard deposed as PW 7. He stated that in the intervening night of 16.01.2007 17.01 2007 he was on duty along with Devnath. At about 2 2:30 a.m. four persons came to the gate of the godown. One person had a revolver and pointed the same at him and Devnath and thereafter told them to take the four persons inside the godown. Inside the godown three workers were sleeping and they were awoken by the assailants. The assailants took their phones. One of the assailants took out a knife and threatened them that if they raised an alarm they would kill them. He stated that he could not identify the assailants as their faces were muffled. At this stage the learned PP cross examined PW 7 as he was resiling from his earlier statement. PW 7 affirmed that the person holding the revolver was wearing a black coloured jacket. At the time of the incident Sonu Krishna Ishwar and Rajesh were sleeping on the second floor of the godown. He affirmed that Bansi a tempo driver came there and his mobile was also taken away by the assailants. He affirmed that he had told the police that he could identify the assailants but could not do so anymore due to lapse of time. CRL. A. Nos. 619 620 621& 9017 12. Bansi Lal deposed as PW 9. He that on 16.01.2007 17.01.2007 he had come to Mangolpuri at Om Transport for loading parchune in his tempo at about 2 2:30 a.m. Two persons asked him to come down from his tempo. One of them had a knife and one had a revolver. They took him to the roof of the agency where there is one room. There a blanket was put on him and they snatched his mobile. The chowkidar was also present there. In his cross examination by the PP he affirmed that the persons who asked him to get down from the tempo were about 20 to 25 years of age. One of their associates was inside the agency when they took him inside. He was wearing a black jacket. He could not identify the accused present in court on the day of his deposition. In his cross examination he stated that he had not seen the accused persons present in court prior to the date of his deposition. 13. Sonudeposed as PW 10. He stated that in the intervening night of 16.01.2007 17.01.2007 he along with three of his workers namely Krishan Rajesh and Ishwar were sleeping on the duchatti of the transport agency. Two security guards were on duty outside the office. At about 2 2:10 am he heard one of the guards saying “why you are loading goods”. He woke up and saw that one person was bringing both the security guards on the duchatti towards him on gunpoint had furnished bills GR which were seized by ASI Kewal Singh and the seizure memo was prepared. However the said documents do not clearly established the identity of the goods in question. It is also relevant to CRL. A. Nos. 619 620 621& 9017 note that none of the said documents pertain to Om Transport Agency. Ex.PW5 2 is the consignor‟s copy of a document generated by Krishna Brothers Transport Company and it mentions the number of packages as 23 and the contents as “cosmetic Boroplus”. The weight is mentioned as 230 Kgs. Ex.PW5 1 is a cash credit memo issued by M s B.C. & Sons for 8160 pieces of “BORO PLUS AN.CREAM 19 GM” and 1680 pieces of “BORO PLUS AN. CREAM 40 GM”. Ex.PW5 3 is a document generated by Krishna Transport Company Titu) indicating the name of the consignee as self. The said document refers to three Bgs of “EL Wire”. Ex.PW5 5 is a retail invoice cash memo bill of Powercell Electronics in respect of three separate articles including 24 pieces of “Home UPS 600 VA”. Ex.PW5 6 is a document generated by Krishna Transport Companyin respect of “Fourty Two Katta Alu Kadhai”. The name of the sender is referred to as “Keshav Kumar C o Duli Chand Om Prakash” and the name of the consignee is referred to as “Garg Bartan Bhandar”. The said document also mentions that it is a driver‟s copy. Ex.PW5 7 is a document generated by Lion Transport Co. mentioning the description of the goods as “S.Machine”. Ex.PW5 8 is a document captioned as a “repairing bill” issued by M s Dhawan Electronics in respect of 10 machines also does not inspire any confidence. This is for the reason that the number of persons disclosed to be involved in commission of the crime does not conform to the number of persons alleged to have committed the robbery. Further the goods allegedly robbed and those as disclosed in the disclosure statement are also not the same. In the disclosure statements of the accused goods such as speakers DVD Players are also mentioned and it is not anybody‟s case that the said goods were robbed on the date of the incident. 22. The accused Sandeep was also charged with committing an offence punishable under Section 397 of the IPC. However since none of the witnesses had identified the accused Sandeep wielding a pistol country made katta the Trial Court found that there was no evidence to convict him for committing an offence punishable under CRL. A. Nos. 619 620 621& 9017 Section 397 of the IPC. Accordingly the court acquitted him of the said charge. This Court finds no fault in the said decision as well. 23. To be noted the State has not preferred any appeal against the accused being acquitted of an offence under Section 411 of the IPC and the accused Sandeep being acquitted of an offence punishable under Section 397 of the IPC. Thus in substance the Trial Court‟s finding that the prosecution had not proved the recovery of stolen articles beyond reasonable doubt and that the accused Sandeep had used a deadly weapon in committing the robbery has been accepted by the State. the IPC. 24. The only question that remains to be addressed is whether there is sufficient evidence to establish that the appellants were involved in committing the offence of robbery punishable under Section 392 of 25. Mr Pujari learned counsel appearing for the accused Sandeep the appellant in CRL.A. 620 of 2017) submitted identification of the accused person in court could not be relied upon because it was not corroborated by any independent evidence. He stated that none of the witnesses had described the accused or provided any evidence as to their identity prior to their identification in court and therefore their deposition in court identifying the accused was insufficient to convict them. Next he submitted that the Trial Court had erred in drawing an adverse inference on the count that the accused had not participated in the TIP. He submitted that the accused CRL. A. Nos. 619 620 621& 9017 had given a justifiable reason for not doing so as they had been shown to the witnesses in the police station as well as in the Rohini Court Complex. He submitted that this was evident from the fact that the IO had moved an application for their TIP on the same day when they were produced in court. He submitted that this would clearly indicate that the witnesses who were to identify the accused were present in the court at the time when they were produced and had seen them. He stated that although the faces of the accused for the TIP may have been muffled but they were brought to the lock up and from there to the court room and during this period their faces were not muffled. Thus the witnesses had the opportunity to see their faces. He relied on the decision of a Coordinate Bench of this Court in State v. Sandeep: CRL. L.P. 620 2019 wherein this Court had observed that if an accused person has a justifiable reason to refuse TIP no adverse inference can be drawn. He further stated that the accused were also shown to PW 10 and PW 13 subsequent to the TIP proceedings and therefore their testimony identifying the accused in court could not be relied upon. 26. Next he submitted that the entire procedure adopted by the investigation agency of filing an application under Section 267 of the Cr.PC for production of the accused and for the purposes of interrogating them formally arresting them and conducting their TIP was contrary to the provisions of law. He submitted that powers under Section 267 of the Cr.PC could be used only when the accused person was required to answer before a court to a charge or for any CRL. A. Nos. 619 620 621& 9017 proceedings against him or to examine such person as a witness. He relied upon the decision of a Coordinate Bench of this Court in Harshad S. Mehta v. Central Bureau of Investigation: 24 DRJ 392 in support of his contention that the police could not use the procedure under Section 267 of the Cr.PC for ensuring the attendance of an accused in one case in order to arrest him in another case. 27. Mr Madhukar learned counsel appeared for Khokhan @ Guddu the appellant in CRL.A. 900 2017) contended that the present case was a blind case and the prosecution had no leads to apprehend the persons involved in committing the said offence. He stated that in the said circumstances the appellants had been falsely implicated and articles alleged to have been recovered from them were planted. He read the testimonies of various witnesses and contended that their testimonies could not be relied upon to establish that the appellants were involved in committing the alleged offence. 28. Mr Singhal learned counsel appearing for Gulam Jilani @ Kallu and Pradeep reiterated the contentions advanced by Mr Pujari and Mr Madhukar. He further submitted that even if the conviction of the appellants were upheld the sentence awarded to them was severe and the Trial Court had overlooked the mitigating circumstances. He submitted that the appellants were of a very young age they had no other criminal antecedents as they had been acquitted in all other cases and had minor children and families to support. CRL. A. Nos. 619 620 621& 9017 29. Mr Pujari‟s contention that the procedure adopted by the investigating agency of filing an application under Section 267 of the Cr.PC for production of an accused before the learned MM their formal arrest and the request for conducting the TIP was contrary to the provisions of law and therefore the appellants are liable to be acquitted is unpersuasive. It is contended that the provisions of Section 267 of the Cr.PC cannot be invoked for producing the accused before the court for the purposes of arresting them in another case. 30. First of all no such contention was advanced before the Trial Court and the same is clearly an afterthought. Secondly even if the contention that the procedure under Section 267 of the Cr.PC ought not to have been invoked to produce the appellants before the learned MM for the purposes of their arrest in the present case is accepted the appellants have failed to establish that they were unfairly prejudiced by the same. In terms of Section 465 of the Cr.PC the impugned judgment convicting the appellants cannot be called into question on account of any irregularity in procedure unless it is established that the same resulted in the failure of justice. In the present case the procedure of producing the appellants before the learned MM for the purposes of this FIR and arresting them when they were produced has not resulted in failure of justice in any manner. 31. The Trial Court had proceeded on the basis that an adverse inference is required to be drawn against the accused on account of their refusal to participate in the TIP. It is contended on behalf of the appellants that their refusal to participate in the TIP were justified as CRL. A. Nos. 619 620 621& 9017 they had been shown to the witnesses at the police station and in the court. However there is no evidence on record that the appellants were shown to the witnesses in the police station or in the court prior to the TIP proceedings. The TIP proceedings were conducted on 24.02.2007 and the appellants were specifically warned that their refusal to join the TIP proceedings may lead to drawing of an adverse inference against them. The appellants have not led any evidence in their defence to establish that they have been shown to the witnesses prior to the TIP proceedings. More importantly they have also not elicited any evidence to the aforesaid effect from any of the witnesses who had identified them. None of the said witnesses had been specifically asked whether they had seen the accused prior to the TIP proceedings. 32. The prosecution had examined seven witnesses PW 6 PW 7 PW 9 PW 11 PW 12 PW 13 and PW 10 for the purposes of identifying the appellants as the offenders who were involved in committing the robbery on the date of the incident 33. PW 6 had identified the accused Pradeep and the accused Gulam Jilani as two of the accused who were involved in committing the robbery. He had stated that the accused Pradeep was carrying a sword in hand and a revolver in the other and the accused Gulam had a sword in the hand. His testimony was not accepted by the Trial Court as it was even doubted whether he was present at the spot. PW 6 was not employed with the Transport Agency in question and had no concern with it. He was a nephew of the owner. There is no reason for CRL. A. Nos. 619 620 621& 9017 him to be present at the spot at the given time. Furthermore his testimony is materially inconsistent with the testimony of the other witnesses. None of the other witnesses have testified that the accused Pradeep and accused Gulam Jilani were wielding swords. He had also testified that at the material time he was working for another transporter named Laxmi Pandit and his place of work was about one kilometer from the office of Om Transport Agency. In his statement recorded on the date of the incidenthe had not alleged that the accused were wielding swords. He testified that he had seen the accused in court for the first time after the date of the incident. He was examined on 16.12.2011 which was almost five years after the date of the incident. Thus the Trial Court rightly ignored his testimony for the purposes of identification of the accused. 34. PW 7 had categorically stated in his examination in chief that he “cannot identify the assailants as they were muffled faces”. He was cross examined by the learned APP. In his cross examination he conceded that he had told the police that he could identify the assailants if shown to him. However he volunteered that he could not identify the assailants due to lapse of time. Clearly his testimony can be of little assistance to the prosecution insofar as the identification of the accused are concerned. 35. PW 9 testified that he had come to Mangolpuri at Om Transport Agency for loading some goods on his tempo. He stated that the two accused had asked him to alight from his tempo one of them was carrying a knife and the other was carrying a revolver. They had CRL. A. Nos. 619 620 621& 9017 put a blanket on his head and he categorically stated that he could not identify those persons. He was cross examined by the learned APP. However he was firm in his stand that he could not identify the accused. He denied the suggestion that he was not doing to so due to fear. In his cross examination by the learned counsel for the accused he categorically stated that he had not seen the accused present in the court on the day of the incident. 36. PW 11 also did not support the prosecution‟s case entirely. He did not identify the accused Sandeep Pradeep or Gulam Jilani. He stated that their faces were covered with a cloth. However he did identify the accused Khokhan to be one of the persons who was involved. He alleged that Khokhan had shown him a country made pistol. However it is not the prosecution‟s case that the accused Khokhan was wielding any firearm. He was cross examined and in his cross examination he denied the suggestion that the accused Pradeep Sandeep and Gulam had accompanied the accused Khokhan. He also denied the suggestion that their description was matching the description of the robbers who had accompanied the accused Khokhan on the said date. He further denied the suggestions that he had not deliberately identified them because he was threatened or because of lapse of time or that he had been won over by all the accused persons other than the accused Khokhan. 37. PW 12identified all the accused in Court. He also testified that the accused Khokhan was carrying a country made pistol and had threatened them with it. However he could not CRL. A. Nos. 619 620 621& 9017 state which of the accused was carrying a knife. However it is also important to state that he testified that one or two persons had covered their faces. He also stated that he could not identify the pistol if it was shown to him. 38. PW 13 identified all the accused. He identified the accused Khokhan as the person who was carrying the weaponbut he denied that he could identify the other accused who were associates of the accused Khokhan and Gulam. In his cross examination he was confronted with the statement recorded on 27.02.2007 and he identified the accused Pradeep and Sandeep. He stated that he had not done so earlier because of lapse of memory. 39. PW 10 identified all the accused. However he did not support the prosecution‟s case that the accused Pradeep was carrying a pistol. He stated that the accused Khokhan was carrying the pistol. It is seen from the above that four witnesses had identified the accused Khokhan to be one of the perpetrators of the offence. The accused Gulam Jilani has been specifically identified by PW 10 as well as by PW 13. The accused Sandeep and Pradeep were identified by PW 10. PW 13 had also identified them albeit in his cross examination by the learned APP. Even if PW 13‟s testimony insofar as the identification of the accused Sandeep and Pradeep is ignored the testimony of PW 10 is unambiguous and he had clearly identified the said accused. Considering the above coupled with the fact that the appellants had CRL. A. Nos. 619 620 621& 9017 declined joining the TIP this Court finds no fault in the decision of the Trial Court in accepting that the prosecution had established that the appellants had been identified as the persons involved in committing the crime. In view of the above this Court finds no reason to interfere with the impugned judgment convicting the appellants of committing an offence punishable under Section 392 of the IPC. However this Court is unable to concur with the view that the appellants deserved no leniency. None of the appellants had been convicted of any offence prior to the impugned judgment. This Court has also been informed that they have been acquitted in all other cases. The appellants were very young at the material time. All of the appellants have minor children and their families to support. 42. Considering the above this Court considers it apposite to reduce the sentence awarded to the appellants to four years of rigorous imprisonment along with the fine of ₹3 000 each and in the event of failure of payment of fine to undergo simple imprisonment for a further period of three months. It is so directed. 43. The appeals are disposed of in the aforesaid terms. All pending applications are also disposed of. NOVEMBER 09 2020 VIBHU BAKHRU J CRL. A. Nos. 619 620 621& 9017

No iota of evidence of divorce, hence petitioner liable to pay interim maintenance under Section 488 CrPC: Jammu & Kashmir High Court

So there is no perversity in the finding returned by the learned Magistrate and upheld by the learned court of revision that the petitioner has not been able to prove the plea of Talak taken in his objections. This was said in the case of Abdul Majeed Dar V Hafiza Begum And Anr [CRMC No.364/2018] by Mr. Justice Rajnesh Oswal in the High Court of Jammu and Kashmir  The facts of the case are that a petition has been filed by the petitioner for quashing the order dated 29th April, 2017 passed by Trial Court as well as the order dated 7th August, 2018 passed by the learned Principal Sessions Judge, whereby the petitioner has been directed to pay maintenance to the allegedly divorcee lady. The only ground which the petitioner has raised in the present petition is that he had already divorced his wife vide, Talaq Nama‟ dated 2nd August, 2011 which was sent to her through registered post The petitioner contended that he had proved the divorce by examining the scribe of the divorce deed and also the postman who delivered the registered letter to the respondent herein. Per contra, the respondent contended that the petitioner had miserably failed to prove the divorce before the learned trial court and the said finding based on evidence has not been interfered by the court of revision and now the petitioner cannot dispute the said finding through the medium of present petition. The learned Magistrate has recorded that “the petitioner has not been able to prove as to on which date the divorce was pronounced upon the respondent as the petitioner did not record his statement and simultaneously the trial court has observed that witness has simply stated that respondent was divorced by her husband but has not stated in which month and which year she was divorced. The learned trial court has also observed that the delivery of the envelope is also doubtful as the postman has not seen any such record in which he has obtained signatures of the respondent”. While referring the judgment in Shameem Ara Versus State of U.P [AIR 2002 S.C. 355] the learned Magistrate in his order has disbelieved the plea of divorce taken by the petitioner in his pleadings. The learned court of revision has also upheld the said finding. Needless to mention here that if the plea of Talak is taken then the same is required to be proved like any other fact.

t HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR ABDUL MAJEED DAR Reserved on 17.03.2021 Prouounced on 26.03.2021 CRMC No.364 2018 Through : Mr. Parvaiz Nazir Advocate HAFIZA BEGUM AND ANR. RespondentThrough : Mr. Shabir Ahmad Advocate Coram: HON’BLE MR. JUSTICE RAJNESH OSWAL JUDGE 1. The present petition has been filed by the petitioner for quashing the order dated 29th April 2017 passed by Sub Judge JMIC Pattan as well as the order dated 7th August 2018 passed by the learned Principal Sessions Judge Baramulla whereby the petitioner has been directed to pay maintenance to the allegedly divorcee lady. However 2. The only ground which the petitioner has raised in the present petition is that he had already divorced his wife vide „Talaq Nama‟ dated 2nd August 2011 which was sent to her through registered post. 3. From the perusal of the record it transpires that the respondent(wife) had filed a petition for grant of interim maintenance under Section 488 Cr.P.C against the petitioner herein who contested the said petition before the trial court on the ground that he had already divorced her on 2nd August 2011 and as such the petitioner herein was not under any obligation to maintain divorced lady. The respondents herein in support of their case had examined the witnesses namely Abdul Rashid Wani Ghulam Hassan and Ghulam Hassan Dar whereas the petitioner herein had examined Ghulam P a g e | 2 Hassan Hajam Abdul Hamid Dar Ghulam Hassan Mohammad Yousuf and Ghulam Mohi ud din(Postman). The trial court after considering the evidence led by both the parties and after hearing the arguments from both the sides granted maintenance of Rs.2000 =per month to each of the respondents. The petitioner herein assailed the said order before the Court of learned Principal Sessions Judge Baramulla by virtue of revision in which the sole ground was that the petitioner was not under any obligation to maintain his divorced wife so the order passed by the trial court vis à vis grant of maintenance to the non applicants in the revision petition be set aside. However the learned Revisional Court vide order dated 7th August 2018 dismissed the said petition. herein. 4. Learned counsel for the petitioner herein has vehemently argued that he had proved the divorce by examining the scribe of the divorce deed and also the postman who delivered the registered letter to the respondent 5. Per contra Mr. Shabir Ahmad vehemently argued that the petitioner had miserably failed to prove the divorce before the learned trial court and the said finding based on evidence has not been interfered by the court of revision and now the petitioner cannot dispute the said finding through the medium of present petition. 6. Heard and considered. 7. The perusal of the order passed by the learned trial court reveals that the learned Magistrate has held that the petitioner has miserably failed to prove the requisites of Talaq and also that Talaknama was sent to the respondent no.1. 8. Needless to mention here that if the plea of Talak is taken then the same is P a g e | 3 required to be proved like any other fact. The learned Magistrate has recorded that the petitioner has not been able to prove as to on which date the divorce was pronounced upon the respondent(wife) as the petitioner did not record his statement and simultaneously the trial court has observed that witness Ghulam Hassan Hajam has simply stated that Mst. Hafeeza was divorced by her husband but has not stated in which month and which year she was divorced. The learned trial court has also observed that the delivery of the envelope is also doubtful as the postman has not seen any such record in which he has obtained signatures of the respondent. The learned Magistrate simultaneously has observed that none of the witnesses produced by the petitioner herein has stated whether any one tried to reconcile the parties before the divorce or who was present from the side of the respondentand the petitioner. 9. While referring the judgment reported in AIR 2002 S.C. 355 titled Shameem Ara Versus State of U.P. the learned Magistrate in his order has disbelieved the plea of divorce taken by the petitioner in his pleadings. The learned court of revision has also upheld the said finding. Needless to mention here that the law laid down in Shameem Ara has been affirmed by the Supreme Court in Sharaya Bano Versus Union of India reported in 2017 SCC 1. Under Section 561 A Cr.P.C the Court can exercise powers only for the purpose of securing ends of justice or to prevent the abuse of law. 10. So far as the instant case is concerned this Court does not find any substance in the contentions raised by the petitioner herein that he has successfully proved the divorce particularly in view of the fact that the P a g e | 4 petitioner has not bothered to appear as his own witness before the trial court. More so there is not even an iota of evidence that any reconciliation efforts were made by two arbiters one chosen by the wife from her family and the other by the husband from his family. So there is no perversity in the finding returned by the learned Magistrate and upheld by the learned court of revision that the petitioner has not been able to prove the plea of Talak taken in his objections. Furthermore the petitioner has not led any evidence as to who sent the divorce to the respondentto prove the plea of Talak. Otherwise also a meager amount of Rs.2000 as has been awarded to the respondent no.1 herein that in the present era of inflation can in no way be termed as either exorbitant or excessive. 11. In view of what has been discussed above this Court does not find any reason whatsoever to interfere with the orders impugned as such instant petition is found to be without any merit same is dismissed accordingly. JUDGE RAJNESH OSWAL) 26 03 2021 Shameem H. Whether the order is reportable: Yes No

The terms of the memorandum of agreement will form part of the decree if it is in accordance with law and order: High Court of Kerala.

If the terms of the memorandum of agreement is perfectly in order and in accordance of law then that memorandum will form part of the decree and parties have to fulfil the terms and conditions prescribed in it. This honorable judgement was passed by High Court of Kerala in the case of Geetha, Regi Babu and Reshi Babu v. Shaji Babu and Vishvanathan [RSA.No.73 OF 2021] by The Hon’ble Mr. Justice N. Anil Kumar. The appellants were the legal heirs of the first defendant in O.S.No.321/2010 on the file of the Munsiff Court, Alappuzha. The suit was filed seeking partition of the scheduled properties with mesne profits. The Trial Court passed a preliminary decree and judgment on 27.01.2011. Consequent to the preliminary decree, seeking to pass a final decree was filed before the Trial Court. The final decree was passed on 06.02.2017. Challenging the final judgment and decree, was filed before the first Appellate Court. The first Appellate Court dismissed the appeal confirming the final judgment and decree of the Trial Court. Hence this second appeal was filled. During the pendency of this appeal, the parties were referred for mediation. The parties mediated and settled the matter out of Court by way of memorandum of agreement under Section 89 of the Code of Civil Procedure read with Rules 24 and 25 of the Civil Procedure (Alternative Dispute Resolution) Rules, 2008. As per the memorandum of agreement, the allotment of properties as per the final decree passed by the Trial Court and confirmed by the first Appellate Court is agreed to be altered and modified on the terms and conditions set forth in the memorandum of agreement.  The court was of the opinion that, “the ongoing through the memorandum of agreement, it is disclosed that the dispute between the parties has been settled out of Court. The memorandum of agreement is perfectly in order and is in accordance with law. Hence, the memorandum of agreement is recorded and the terms of the agreement will form part of RSA.No.73 OF 2021 the decree.”

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR.JUSTICE N.ANIL KUMAR FRIDAY THE 26TH DAY OF MARCH 2021 5TH CHAITHRA 1943 RSA.No.73 OF 2021 AGAINST THE JUDGMENT AND DECREE IN AS 63 2019 OF DISTRICT COURT ALAPPUZHA AGAINST THE JUDGMENT AND DECREE IN OS 321 2010 OF PRINCIPAL MUNSIFF ALAPPUZHA GEETHA W O. LATE RESHIBABU KAMBIYIL HOUSE AGED 56 YEARS W O. LATE RESHIBABU KAMBIYIL HOUSE KUTHIRAPANTHI WARD ALAPPUZHA WEST VILLAGE ALAPPUZHA PIN 688 002 REGI BABU S O. RESHI BABU AGED 36 YEARS KAMBIYILHOUSE KUTHIRAPANTHI WARD ALAPPUZHA WEST VILLAGE ALAPPUZHA PIN 688 002 REJI BABU S O. RESHI BABU AGED 29 YEARS KAMBIYIL HOUSE KUTHIRAPANTHI WARD ALAPPUZHA WEST VILLAGE ALAPPUZHA PIN 688 002 BY ADV. SRI.SIBI THOMAS JACOB SHAJI BABU S O. LATE KARTHIKEYAN AGED 60 YEARS PONATHUHOUSE MUNAMPAM KUZHIPPALLY VILLAGE ERNAKULAMPIN 683 515 RSA.No.73 OF 2021 AGED 63 YEARS DAIVAPURACKAL HOUSE BEACH WARD ALAPPUZHA WEST VILLAGE ALAPPUZHA PIN 688 007 R1 BY ADV. SRI.SURAJ.S R1 BY ADV. SRI.G.HARIKUMAR THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 26.03.2021 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING RSA.No.73 OF 2021 N. ANIL KUMAR J R.S.A.No.721 Dated this the 26th day of March 2021 The appellants are the legal heirs of the first defendant in O.S.No.321 2010 on the file of the Munsiff Court Alappuzha. The above suit was filed seeking partition of the scheduled properties with mesne profits The Trial Court passed a preliminary decree and judgment on 27.01.2011. Consequent to the preliminary decree I.A.No.1206 2012 seeking to pass a final decree was filed before the Trial Court. The final decree was passed on 06.02.2017. Challenging the final judgment and decree A.S.No.63 2019 was filed before the first Appellate Court. The first Appellate Court dismissed the appeal confirming the final judgment and decree of the Trial Court. Hence this second appeal RSA.No.73 OF 2021 2. During the pendency of this appeal the parties were referred for mediation. The parties mediated and settled the matter out of Court by way of memorandum of agreement under Section 89 of the Code of Civil Procedure read with Rules 24 and 25 of the Civil Procedure Rules 2008 As per the memorandum of agreement dated 18.03.2021 the allotment of properties as per the final decree passed by the Trial Court and confirmed by the first Appellate Court is agreed to be altered and modified on the terms and conditions set forth in the memorandum of agreement. 3. On going through the memorandum of agreement it is disclosed that the dispute between the parties has been settled out of Court. The memorandum of agreement is perfectly in order and is in accordance with law. Hence the memorandum of agreement is recorded and the terms of the agreement will form part of RSA.No.73 OF 2021 Resultantly this RSA is disposed of in accordance with the memorandum of agreement between the parties The terms of the memorandum of agreement will form part of the decree. In terms of the memorandum of agreement the parties are directed to deposit in Court the amount required for the non judicial stamp paper for engrossing the decree in proportion to the value of their shares. The copy of the final decree shall be sent to the Sub Registrar within whose jurisdiction the immovable property is situated kkj N. ANIL KUMAR JUDGE

Interest in fishery lease can be acquired through succession: Allahabad High Court

Upon the death of the lessee, a fishery lease can be transferred to his legal heirs without seeking any prior permission and if any other law that contradicts such a nature is enacted, it will not place a restriction on this absolute nature of fishery lease. Hon’ble Justice Manoj Misra and Hon’ble Justice Ranjan Agarwal adjudged, “As succession takes place by operation of law on the death of the estate holder and death though is certain but the time of it cannot be controlled, particularly, when it occurs naturally, the successor in the event of death simply steps into the shoes of the estate holder immediately on his death, by operation of law and, therefore, no question of seeking prior permission to acquire interest arises” in Sheetal Vs. State of U.P and 5 Ors. [SPECIAL APPEAL DEFECTIVE No. – 240 of 2021] The brief facts of the case are, the husband of respondent no.6 obtained a fishery lease for a period of 10 years in 2013. Later in the year 2015, respondent No.6 was elected as the member of the gram panchayat. In 2018, the husband of respondent No.6 died. Respondent no.6 applied for substitution as a lessee in place of her husband for the fishery lease. In 2019, the sub divisional magistrate allowed such an application and the respondent No.6 was made the lessee. Questioning such an order, a writ was filed by the appellant on the grounds that the respondent no. 6 cannot be substituted as a lessee without following due process as under Section 28 C of the U.P. Panchayat Raj Act, 1947 which was dismissed. Aggrieved by this, the appellant filed an appeal before the high court. The learned judges after listening to both the counsels and reading the section 28C came to a conclusion that section 28C will not place any restriction on acquisition of interest in a fishery lease by succession. An analysis of section 28C revealed that such a clause was introduced to prevent misuse of power and unethical gains. Clause (a) of subsection (1) also said that any restrictions mentioned in that section would not be applicable to interests which were acquired by a member before he assumed office in the gram panchayat. It was also observed that the section used the word ‘knowingly’ which was interpreted by the court in Horn Vs. State Ind, 445 N.E.2d 976-978  as “act is done “knowingly” or “purposely” if it is willed, is the product of a conscious design, intent or plan that it be done, and is done with awareness of probable consequences.” Since succession takes place post the death of a person, there is no possible to predict the occurrence of this uncertain event.

AFR Court No. 40 Case : SPECIAL APPEAL DEFECTIVE No. 2421 Appellant : Sheetal Respondent : State Of U.P. And 5 Others Counsel for Appellant : Jamil Ahamad Azmi Mohd. Isa Khan Counsel for Respondent : C.S.C. Rameshwar Prasad Shukla Hon ble Manoj Misra J Hon ble Rohit Ranjan Agarwal J Delivered by Hon ble Manoj Misra J This intra court appeal arises from a judgment and order dated 02.07.2019 of a Single Judge in Writ C No.14609 of 2019 dismissing the writ petition of the appellant As per the report the limitation for filing the appeal was upto 02.08.2019 but the same has been presented in February 2021 with a delay condonation application Considering the explanation offered and the fact that in between there had been large scale restriction in movement due to COVID 19 pandemic we deem it appropriate to condone the delay in filing this appeal. Consequently the delay condonation application is allowed. The delay in filing the appeal is condoned Office shall assign a regular number to the appeal 4. We have heard the learned counsel for the appellant learned Standing Counsel for the respondents 1 to 4 and Sri Rameshwar Prasad Shukla for the respondent no.5 In brief the facts giving rise to this appeal are as follows: The husband of the sixth respondent in the year 2013 obtained a fishery lease for a period of 10 years with effect from 14.08.2013. On 18.12.2015 the sixth respondent was declared elected as a member of the Gram Panchayat concerned. On 25.04.2018 the husband of the sixth respondent died. As an interest in a fishery lease is inheritable the sixth respondent applied for substitution as a lessee in place of her late husband. When no action was taken on her application she filed Writ C No.425918 which was disposed off with a direction upon the Sub Divisional Magistrate Azamgarh to decide the application of the sixth respondent. Pursuant thereto by order dated 28.02.2019 the Sub Divisional Magistrate Sigari Azamgarh upon finding that the period of lease remains allowed the application and substituted the sixth respondent in place of her deceased husband. Questioning the order dated 28.02.2019 the appellant filed Writ C No.146019 by claiming that without the permission of the Collector as is necessary under Section 28 C of the U.P. Panchayat Raj Act 1947the sixth respondent who is member of Gram Panchayat concerned could not acquire interest in a village tank by way of lease etc. Negativing the above claim the learned Single Judge dismissed the writ petition of the appellant by declaring that Section 28 C of the Act would not apply to a case where the right devolves upon a person by operation of law such as in a case of succession. Aggrieved with the order of the learned Single Judge this appeal has been filed As the fate of the appeal would depend on the import of Section 28 C of the Act the same is extracted below: 28 C— “Members and officers not to acquire interest in contract etc. with Bhumi Prabandhak Samiti No member or office bearer of Gram or Bhumi Prabandhak Samiti shall otherwise than with the permission in writing of the Collector knowingly acquire or attempt to acquire or stipulate for or agree to receive or continue to have himself or through a partner or otherwise any share or interest in any licence lease sale exchange contract or employment with by or on behalf of the Samiti concerned Provided that a person shall not be deemed to acquire or attempt to acquire or continue to have or stipulate for or agree to receive any share or interest in any contract or employment by reason only of his a) having acquired any interest before he became a member or office bearer b) having a share in a joint stock company which makes the contract c) having a share or interest in the occasional sale through the Samiti concerned of an article in which he regularly trades upto a value not exceeding Rs. 50 in any one year 2) No court or other authority shall enforce at the instance of any person a claim based upon a transaction in contravention of the provisions of sub The contention of the learned counsel for the appellant is that the restriction placed by the provisions of Section 28 C would also cover a case of acquiring interest through succession and therefore without the permission of the Collector the sixth respondent could not have been substituted in place of her late husband as a lease holder of the fishery lease 9. We have given our thoughtful consideration to the contentions of the learned counsel for the appellant and have perused the provisions of Section 28 C of the Act carefully. It is well settled that Section 28 C has been inserted with an object to protect the property of Gram Panchayat so that persons who are in a position to influence settlement of interest in Gram Panchayat property do not utilise their position to gain unethical advantage for themselves. However what is important is that clauseof the proviso to sub sectionof Section 28 C saves those interests that were acquired by a person before he became a member or office bearer. When a person inherits the estate it is by operation of law the person steps into the shoes of his or her predecessor by devolution of interest which takes place immediately on the death of the predecessor though such devolution may be recognised later. Recognition of such devolution may be by way of mutation or substitution in the records but such mutation or substitution by itself does not create any right though it may amount to a recognition of the right. Thus where the right devolves upon a person by operation of law on occurrence of an event over which a person does not have control no occasion arises to seek for permission before such devolution. The legislature therefore to serve the legislative object of controlling acquisition of interest in Gram Panchayat property in its wisdom qualified the phrase “acquire or attempt to acquire any share or interest in any license lease sale exchange contract or employment with by or on behalf of the Samiti concerned” with the word “knowingly”. In P. Rama Natha Aiyar’s Treatise “Advanced Law Lexicon” it is provided that the primary meaning of the word “knowingly” is with “knowledge”. The treatise thereafter proceeds to notice various facets of the term “knowingly” as interpreted by courts in different contexts. One of them being the decision in Horn Vs. State Ind 445 N.E.2d 976 978 wherein it was held that “act is done “knowingly” or “purposely” if it is willed is the product of a conscious design intent or plan that it be done and is done with awareness of probable consequences. As succession takes place by operation of law on the death of the estate holder and death though is certain but the time of it cannot be controlled particularly when it occurs naturally the successor in the event of death simply steps into the shoes of the estate holder immediately on his death by operation of law and therefore no question of seeking prior permission to acquire interest arises. Accordingly by keeping in mind the legislative intent for inserting Section 28 C as also the import of clauseof the proviso to its sub sectionwe respectively agree with the view of the learned Single Judge that the provisions of Section 28 C of the U.P. Panchayat Raj Act 1947 will not place any restriction on acquisition of interest in a fishery lease by succession The appeal has no merit and is accordingly dismissed Order Date : 25.06.2021

No legal proposition that evidence of police officers, unless supported by independent witnesses, is untrustworthy of acceptance: Delhi High Court

There is no legal proposition that if the evidence provided by the police officers is not supported by independent witnesses, it is untrustworthy of acceptance. The Delhi High Court presided over by J. Vibhu Bakhru laid down this ratio in the case of Mohd. Musa vs. State [CRL.A. 271/2017]. In this case, the appellant was convicted for committing an offence punishable under Section 413 of the Indian Penal Code, 1860 by Additional Session Judge, Karkardooma Courts. The appellant was accused guilty in nearly fourteen cases of possessing and selling stolen goods and vehicles when he was caught with a stolen bike at a vehicle checking point. He contended that the accusations were falsely implicated and the police planted stolen vehicles at his resident for recovery, to get off with the burden of solving numerous cases. There was no witness with the police to support their contentions and accusations on thirteen more cases after the appellant pleaded not-guilty before the court. The Delhi High Court contended, “The fact that no independent witness had been joined in the recovery proceedings also does not indicate that the case set up by the prosecution is false.” The court further held, “The contention that the appellant cannot be considered as a habitual offender as he has not been convicted is also erroneous. The appellant is involved in a number of cases as is apparent from the SCRB Report. The same indicates that the appellant is involved in as many as thirty cases and most of the same are under Sections 379/411 of the IPC. Before the concerned ACMM, the appellant had pleaded guilty in the said cases. His statements were made voluntarily and without any force or coercion, to the effect that he was guilty of committing the offences under Sections 379/411/34 of IPC.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on: 08.01.2021 CRL.A. 271 2017 MOHD. MUSA .....Appellant .....Respondent Advocates who appeared in this case: For the Appellant For the Respondent Mr Roshan Lal Saini Advocate. Mr Ravi Nayak APP for State. HON’BLE MR JUSTICE VIBHU BAKHRU VIBHU BAKHRU J The appellant has filed the present appeal impugning a judgment dated 21.01.2017 whereby the Ld. ASJ Karkardooma Courts has convicted the appellant for committing an offence punishable under Section 413 of the Indian Penal Code 1860 hereinafter „IPC‟). By an order dated 28.01.2017 which is also impugned in this appeal the appellant was sentenced to undergo rigorous imprisonment for period of seven years along with a fine of ₹40 000 and in default of payment of fine to undergo simple imprisonment for a further period of one year. CRL A. 271 2017 Briefly stated the facts of the case are that on 05.04.2006 one Riyaz Mohammed lodged an E FIR no. 10208 16 under Section 379 of the IPC regarding theft of his motorcycle bearing no. DL 8SA Z 7225). On 14.04.2016 Special Staff North East apprehended the appellant with stolen vehicles and lodged DD no. 70B regarding the recovery of chassis bearing no. 18145 from the premises of the appellant. Thereafter the appellant was arrested and sent to judicial custody. He was arrested in the present case from the concerned court where he was produced on a production warrant on the allegation that he had been habitually dealing in stolen property and there were a number of cases lodged against him. Further at his instance a number of parts of stolen vehicles were also recovered from his premises including the chassis and number plate of the aforesaid motorcycle. Pursuant to the aforesaid FIR the accused was charged with commission of the offences punishable under Sections 379 411 413 of the IPC. He pleaded not guilty and the matter was set down for trial. During the course of the trial the prosecution examined eight It is the prosecution‟s case that the appellant was apprehended on 12.04.2016 at about 5:00 pm by police officials who were deployed at 66 Foota Road new MCD Court C Block Yamuna Vihar as he was found riding a stolen motorcycleagainst the accused recorded DD No. 12Aand statements of police officials in whose presence the recovery was effected and prepared site plans of place of recovery and the place where accused was arrested and ASI Rakesh Kumar regarding the apprehension of the accused as well as the recoveries made at his instance vide seizure memos Ex.PW4 El to Ex. PW4 E5. His also testified that the appellant was the arrested in kalandara proceedings on the alleged recovery of stolen articles. SI Dhanattar Singh was examined as PW 1. He stated that on 12.04.2016 he was on duty as a Duty Officer at PS Bhajan Pura and at about 10:10 pm SI Shahid Ali recorded DD No. 12A in his presence about his arrival and recovery of items from the possession of the accused. He identified writing of PW 4 from a copy of the aforesaid DD. He also proved the E FIR lodged by the complainant with PS Bhajan Pura. In his cross examination he affirmed that the recovery items were not seen by him. CRL A. 271 2017 Ct. Prem Chand was examined as PW 2. He stated that on 14.04.2016 he was on duty as a Duty Constable at PS Bhajan Pura and at about 7:30 pm he had received information from SI Shahid PW 4) telephonically about the recovery of chassis number plate of the vehicle etc. from the possession of the appellant pertaining to three cases of their police station. He stated that he had recorded DD No. 70Bon the basis of information given by PW 4 and the same was assigned by him to MHC(R) for further action. In his cross examination he denied the suggestion that the aforesaid DD is antedated and ante timed. He also stated that he had no personal knowledge about the recovery of two wheelers at the instance or from the possession of the accused. He denied the suggestion that the aforesaid DD was fabricated by him in connivance with PW 4 to work out the pending criminal cases of different police stations. 10. Riyaz Mohmad the complainant was examined as PW 3. He stated that he is the registered owner of the motorcycle black cherry Passion Crow motorcycle bearing registration No. DL 8SAZ 7225. He stated that he had purchased the aforesaid motorcycle second hand from a dealer and the said motorcycle was transferred in his name about two months back. He stated that on 03.042016 at about 9 pm he had parked the aforesaid motorcycle near one marriage home in the area of Noor e Illahi and at about 10:00 pm he found his motorcycle missing from the said area. Thereafter he had called on Number 100 to report theft of his motorcycle. He stated that the PCR officials came and directed him to contact PS Bhajan Pura. After 1 2 days he again CRL A. 271 2017 visited PS Bhajan Pura as he was not carrying the Registration Certificateof his motorcycle earlier. Thereafter on 05.04.2016 he lodged an E FIR. He stated that during the course of investigation the police had visited the place of theft at his instance and he handed over the RC and copy of his driving license (Ex PW3 B) to the police. He stated that in the month of April 2016 the police officials had told him about the recovery of the chassis of his motorcycle and he identified the same with the help of a serial number. He also identified the chassis of his motorcycle lying in the custody of MHC(M) in the court complex. In his cross examination he stated that neither recovery of the chassis of his motorcycle was done in his presence nor he is aware about the date of such recovery. He further stated that he is not aware from whose possession the chassis was recovered. He stated that one police official of PS Bhajan Pura had told him that the chassis of his motorcycle had been recovered. He identified the said chassis through its serial number with the help of copy of RC. He stated that he did not have the original RC of the motorcycle as the same was lying in the storage compartment when it was stolen. He denied the suggestion that the motorcycle did not belong to him or the same had been planted by the police to work out their pending cases. 12. ASI Rakesh Kumar deposed as PW 5. He stated that on 12.04.2016 he was posted in Special Staff North East District. He stated on that day at about 5 pm SI Shahid HC Vinay Kumar and Ct. Bhullan Tyagi and him were busy in vehicle checking at 66 Feeta CRL A. 271 2017 Road near MCD Office Yamuna Vihar. Thereafter at about 5:30 pm the accusedwas stopped and checked at the vehicle checking spot. He stated that the accused could not produce documents of his motorcycle or his DL to SI Shahid Khan and recorded DD no 12A and placed the same on file which does not bear signatures of SHOP E Police Station. He stated that the same had been taken out of the net and thereafter he passed on information CRL A. 271 2017 through net to E SHO for the present case. He stated that he searched for the aforesaid motorcycle however no clue came forward till 11.04.2016. He stated that on 14.04.2016 copy of DD No. 70Bregarding the chassis and number plate of the stolen motorcycles recovered from the accused was delivered to him by MHC(R). He stated that through the aforesaid DD it came to his notice that chassis and number plate of stolen motorcycle of present case were recovered from the accused. He stated that he placed the aforesaid DD on file and thereafter visited Special Staff North East District and collected copy of kalandara copy of DD No. 12A disclosure statement of the accused site plansfive seizure memosand placed the same on file. He stated that he had also interrogated Special Staff officials namely SI Shahid Ct Bhullan HC Vinay ASI Rakesh under Section 161 of the Cr.PC. Thereafter he stated that on 29.04.2016 the accused appeared before the concerned court and he had formally arrested him vide Arrest Memo prepared by PW 4 is a matter of record. CRL A. 271 2017 He stated that he was arrested by the IO before the concerned court however the disclosure statement was recorded by the IO himself and his signatures were obtained on it without explaining the contents of the same. He stated that he has been falsely implicated in this case and the witnesses have deposed against him as they are interested witnesses. He stated that on 11.04.2016 at about 3 pm he was going to Jama Masjid from his house on his scooty bearing no DL 2SN 1571 with an aluminum nob in his bag and three police officials who were dressed in civil uniform came in front of his house and told him that some inquiry is to be conducted from him at the police station. Thereafter they took him to the police station on his scooty with him sitting in the middle. He further stated that he was detained in the police station from 11.04.2016 12.04.2016. He stated that his brother had visited the police station to inquire about his detention and the IO had demanded bribe of ₹3 00 000 from him. Further he stated that when he refused to give the same the police officials falsely implicated him in a number of cases. 17. The accused further examined himself as DW1. He stated that on 11.04.2016 he was going to Jama Masjid from his house on his scooty bearing no. DL 2SN 1571 with an aluminum nob in his bag. Thereafter three police officials dressed in civil uniform came in front of his house asked his name and informed him that some inquiry had to be conducted. Thereafter he was taken to Yamuna Vihar Special Staff Office with his scooty wherein they enquired about his previous cases and thereafter PW 4 took him to the ACP‟s Office. He stated CRL A. 271 2017 that the ACP had inquired about his mobile number but he had left the same at his home. He stated that he made a call to his nephew from the mobile phone of the ACP. He stated that the ACP had asked him to call 2 3 persons along with his food. Thereafter the ACP inquired as to how much he could arrange to pay SI Shahid in the presence of his brother Khalil and nephew Tayab. He stated that again said SI Shahid had inquired about his financial capacity to pay money in the presence of the ACP. He stated that his brother and nephew refused to pay anything as he was not indulged in any unlawful activity. Thereafter he stated that he was arrested on his failure to pay the amount to SI Shahid and he was produced before the concerned court on 12.04.2016. 18. On cross examination the accused stated that he was going to deliver aluminum nob to one Fayad Bhai at his shop in Gali Gadiya Jama Masjid however he did not know the address of Fayad Bhai but knew his mobile number. He affirmed that he had not brought any document to prove that he was engaged in the business of manufacturing aluminum nob. He stated that at the time of incident he was facing about fourteen cases before different courts and all the cases were pertaining to Sections 379 or 411 of the IPC. He stated that he had not been convicted in any of the cases but one case pertaining to PS Dariya Ganj was compromised. He stated that he had compounded three cases pertaining to PS Dariya Ganj and he had settled three four cases by the way of plea bargaining. He stated that SI Shahid had inquired about his financial capacity and made a CRL A. 271 2017 demand for money but it was made while he was taken away in a corner. He stated that neither he informed the concerned ACP regarding the bribe demanded by PW 4 nor he made any complaint to higher authority against the false implication by PW 4 in the present case as he was not given time to do so. He stated that he had been implicated in fifteen cases after being lifted from his house. He stated that neither he nor his family members have filed any civil or criminal case or complaint against PW 4 or police officials of the concerned PS or ACP regarding the aforesaid. He stated that he was earning ₹18 000 20 000 per month and SI Shahid had demanded ₹3 00 000 from him. He affirmed that he did not make any complaint against any demand. He stated that he had disclosed to the concerned MM that he had been falsely implicated in the present case but no application or written document was filed before the concerned court regarding the same. He denied the suggestion that he was habitually dealing in stolen articles as well as theft and a number of false cases had been lodged against him on account of his involvement in the present case. He denied the suggestion that he had concocted a false story of being lifted from his house or that he had levelled false allegations against the police officials for lodging the said case against him. denied the suggestion that he had deposed falsely. Discussions and Conclusion 19. Mr. Saini learned counsel appearing for the appellant assailed the appellant‟s conviction on multiple grounds. First he submitted that there is a delay in registration of the FIR. The FIR of the said case was CRL A. 271 2017 lodged on 05.04.2016 however the motorcycle bearing no. DL 8SAZ 7225 belonging the complainant was allegedly stolen on 03.04.2016. 20. Second he submitted that the appellant was falsely implicated in the case. He contended that this is apparent from the following:although two wheelers were allegedly recovered no keys were recovered that no independent witnesses were joined in the alleged recovery proceedings and the police officials from PS Jafrabad were not informed although the recovery was effected from a place which was a short distance from the said Police Station. 21. Third he contended that the appellant was apprehended from his residence on 11.04.2016 at about 3.00 p.m. by three police officials and the said recoveries were planted upon the appellant by the police officials. He contended that no recovery was effected from the residence of the appellant and the said motorcycles and spare parts were lying at the office of Special Staff North East Yamuna Vihar. 22. Fourth he contended that the prosecution had failed to establish that the vehicle allegedly stolen belonged to the complainant as the original Registration Certificate was not produced. Fifth he contended that the prosecution had failed to establish the premises from where the recoveries were effected belonged to the appellant. And lastly he contended that the appellant was not convicted and sentenced in any earlier case and therefore it could not be concluded that the appellant CRL A. 271 2017 was a habitual offender. Therefore his conviction for an offence punishable under Section 413 of the IPC is not sustainable. 23. None of the contentions advanced on behalf of the appellant are persuasive. The delay in filing the FIR has been adequately explained by the complainant stated that the concerned ACP had inquired from him as to the amount he could pay to SI CRL A. 271 2017 Shahid. He stated that this inquiry was made in presence of his brother Khalil and his nephew Tayyab. He had then changed his stand and said that SI Shahid had inquired about his capacity to pay the money in presence of the concerned ACP. In his cross examination he stated that SI Shahid Ali had inquired about his financial capacity to pay the amount demanded after he was taken to a corner of the room and at that time the concerned ACP was not watching. He also stated that he did not inform the ACP about the demand raised by SI Shahid nor made any complaint in this regard. In view of the above the appellant‟s stand that any bribe was demanded from him cannot be accepted. 27. The contention that the prosecution had failed to establish that the motorcycle in question was stolen as the original Registration Certificate was not produced is also unmerited. A copy of the said RC had been produced and PW3 had also volunteered that the original RC was in the storage compartment of the motorcycle and therefore only a copy of the RC could be produced. It is also important to note that the chassis number of the vehicle in question had been duly recorded in the FIR which was lodged much prior to the appellant being apprehended. In the circumstances this Court finds no ground to doubt that the motorcycle which was reported to be stolen by the complainant belonged to him. He had also testified to the aforesaid effect. 28. The contention that the prosecution had failed to establish that the address from where the CRL A. 271 2017 recoveries were allegedly effected belonged to the appellant and therefore the appellant was liable to be acquitted is also unmerited. There is no dispute that the appellant was a resident of the given premises. The appellant had in his statement recorded under Section 313 of the Cr.PC also clearly stated that he was a resident of H. No. 1009 Gali No. 33 Jafrabad. The bail bond furnished by the appellant also records the same as his residential address. In view of this admitted position it is not open for the appellant to now suggest that he was not a resident of the said premises. 29. The contention that the appellant cannot be considered as a habitual offender as he has not been convicted is also erroneous. The appellant is involved in a number of cases as is apparent from the SCRB Report (Ex.PW8 4). The same indicates that the appellant is involved in as many as thirty cases and most of the same are under Sections 379 411 of the IPC. During the course of the proceedings the learned APP had also produced orders relating to FIR no. 946 06 and FIR no. 61 07. The said orders indicate that the matters were compounded. Before the concerned ACMM the appellant had pleaded guilty in the said cases. His statement made voluntarily and without any force or coercion to the effect that he was guilty of committing the offences under Sections 379 411 34 of the IPC was recorded. In view of the above the conclusion of the Trial Court that the appellant is guilty of committing an offence punishable under Section 413 of the IPC cannot be faulted. CRL A. 271 2017 31. This Court has evaluated the evidence obtaining in this case and concurs with the view of the Trial Court that the appellant is guilty of an offence punishable under Section 413 of the IPC. 32. The appeal is unmerited and is accordingly dismissed. VIBHU BAKHRU J JANUARY 08 2021 CRL A. 271 2017

Neither Merchant nor Trader as words has been defined in the act, thus their ordinary meaning in commercial world should be referred. : Calcutta High Court

Neither the word ‘merchant’ nor the word ‘trader’ has been defined in the Act of 2015. The ordinary meaning of such words as understood in the commercial world have to be applied more so since the provisions of the Act of 2015 deals with the commercial dispute said Justice Debangsu Basak of the Calcutta High Court in the matter South City Projects (Kolkata) Ltd vs Ideal Real Estates Pvt. Ltd [ CS 255 of 2019] This order was given for the facts where the plaintiff has filed this action against the defendant in order to recover money lent and advanced. On May 30, 2017, the plaintiff lent and advanced Rs. 5 crores to the defendant. The defendant agreed to pay interest at the rate of 15% per year. As of March 31, 2018, the defendant issued a balance confirmation acknowledging the principal amount lent and advanced as well as the interest payable thereon. The defendant’s balance confirmation established the principal amount that the plaintiff had lent and advanced to the defendant, as well as the agreed rate of interest, which was 15% per annum. For the transaction, the defendant issued a tax deducted at the source certificate. According to the plaintiff, because the defendant was unable to repay the amount advanced despite repeated demands from the plaintiff, the parties agreed that the defendant would pay interest at a rate of 15% per annum with quarterly rests beginning October 1, 2018. According to the plaintiff, it raised and submitted invoices to the defendant for the interest component at the agreed-upon rate of 15% per annum, with quarterly rest with the defendant. The defendant has denied that it agreed to pay interest at a rate of 15% per year with quarterly rests beginning October 1, 2018. The defendant acknowledged receipt of the sum of Rs. 5 crores as financial accommodation on the agreement and understanding that the plaintiff would be entitled to interest at the rate of 15% per annum on such loan in the affidavit filed by the defendant affirmed on December 15, 2020. The defendant has also claimed that such interest violated the provisions of the Bengal Money Lenders Act of 1940. The defendant’s balance confirmation, dated March 31, 2018, acknowledged a sum of Rs. 5,62,87,671 to be due and payable by the defendant to the plaintiff. Such balance confirmation includes an interest component at a rate of 15% per year. According to the balance confirmation signed by the defendant, the defendant agreed to pay interest at the rate of 15% per year. The defendant had paid a total of Rs. 3 crores from April 1, 2018, until the filing of the suit, as well as Rs. 30 lakhs after the filing of the suit. As a result, after deducting Rs. 3.3 crores from the total amount of Rs. 5,62,87,671, the defendant owes the plaintiff Rs. 2,32,87,671. The defendant’s most recent payment was made on January 10, 2019. On the merits, the defendant has not revealed any defence to the claim for Rs. 2,32,87,671 plus interest at the rate of 15% per annum. As a result, it would be appropriate to enter a decree in favour of the plaintiff for Rs. 2,32,87,671 plus interest at the rate of 15% per annum from January 11, 2019, until realisation. “The plaintiff’s balance claim for interest and principal is left open to be decided at the trial of the suit. As the compared  wording in the Insolvency and Bankruptcy Code, 2016, and the Act of 2015.” In this regard, he cited 2019 volume 4 Supreme Court Cases 17 (Swiss Ribbons Private Limited v. Union of India).  Referring to 1977 volume 2 Supreme Court cases 424 Mannalal Khetan & Ors. v. Kedar Nath Khetan & Ors. learned senior advocate has also “submitted that the loan transaction is beyond the plaintiff’s Memorandum of Association and thus ultra vires the plaintiff’s objects clause.”

South City ProjectsLtd vs Ideal Real Estates Pvt. Ltd on 7 April 2021 Calcutta High Court South City ProjectsLtd vs Ideal Real Estates Pvt. Ltd on 7 April 2021 1 IA NO. GA 20 OLD NO. GA 2693 OF 2019 In CS 2519 IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction COMMERCIAL DIVISION SOUTH CITY PROJECTSLtd V IDEAL REAL ESTATES Pvt. Ltd For the Plaintiffs : Mr. Abhrajit Mitra Sr. Adv Mr. Satadeep Bhattacharjya Adv Miss. S. Das Adv Miss. T. Joarder. Adv For the Respondents : Mr. Samrat Sen Sr. Adv Mr. Shaunak Mitral Adv Mr. Paritosh Sinha Adv Mr. Saubhik Chowdhury Adv Mr. Dripto Majumdar Adv Mr. Ayusmita Sinha Adv Hearing concluded on : March 15 2021 Judgment on : April 07 2021 DEBANGSU BASAK J. : 1. In a suit for recovery of money lent and advanced the plaintiff has applied for judgement on 2. Learned senior advocate appearing for the plaintiff has submitted that the plaintiff had lent and advanced a sum of Rs. 5 crores to the defendant. The defendant has admitted receipt of the sum of Rs. 5 crores from the plaintiff. The defendant has admitted that the agreed rate of interest payable is Indian Kanoon South City ProjectsLtd vs Ideal Real Estates Pvt. Ltd on 7 April 2021 15% per annum. The defendant has stated that it repaid the sum of Rs. 3 crores inclusive of interest up to the date of filing of the suit. The defendant has also stated that it repaid a sum of Rs. 30 lakhs on December 21 2020 post filing of the suit 3. Learned senior advocate appearing for the plaintiff has submitted that although the defendant did not raise the issue of Bengal Money Lenders Act 1940 in the affidavit the plaintiff in order to avoid any controversy paid the licence fee along with penalty in terms of section 10 read with section 13of the Act of 1940 on February 18 2020. According to him even without payment of the license fee the Court could have proceeded to pass a summary decree. In support of such contention he has relied upon 2002Calcutta Law Journal 169and 2000Calcutta Law Journal 185of the Commercial Courts Act 2015. He has contended that the defendant in the supplementary affidavit dated January 18 2021 has stated that the plaintiff sought to have exhausted the remedy of pre institution mediation under section 12A of the Act of 2015 before instituting the suit. He has submitted that leave under Section 12A of the Act of 2015 was obtained at the time of presentation of the plaint. He has submitted that the defendant is not disputing the fact that the loan in question is by one company to another company both carrying on commercial activities and is a commercial loan. The plaintiff has deposited penalty under Section 13(2) of the Act of 1940 at the behest of the defendant. According to him the defendant thereafter cannot contend that the disputes are not commercial disputes within the meaning of the Act of 2015 5. Learned senior advocate appearing for the plaintiff has submitted that in any event Section 2(1)(c)(xvii) of the Act of 2015 covers the present dispute since the money lent and advanced is a type of service rendered by the plaintiff to the defendant. He has relied upon the Finance Act 1994 particularly on Section 65(12)(a)(ix) and Section 65(105)(zm) thereof. He has submitted that by the subsequent amendment to the Act of 1994 such type of service has been placed in the negative non taxable list of services under section 66Bread with section 66Dof the Competition Act 2002 Section 2(1)(z) of the Trademark Act 1999 and Section 2(1)(o) of the C o n s u m e r P r o t e c t i o n A c t 1 9 8 6 h a s c o n s i d e r e d s e r v i c e o f l e n d i n g m o n e y e v e n b y a non banker financer to be a service. He has contended that Section 2(1)(c)(vii) of the Act of 2015 also covers agreement for sale of goods without any restriction on the type of goods sold and delivered. According to him there can be no justification for excluding some type of services from the scope of the expression provision of services and yet include all types of goods sold and delivered. It would amount to digressing into legislative function if the Court defines what type of service would be covered by the expression provision of services even though the statute has Indian Kanoon South City ProjectsLtd vs Ideal Real Estates Pvt. Ltd on 7 April 2021 7. Learned senior advocate appearing for the defendant has contended that no decree can be passed in the suit as framed by reason of the subject matter of the suit not qualifying as a commercial dispute as defined in Section 2(c) of the Act of 2015. He has cited the provisions of the Act of 1940 and the bar envisaged thereunder to contend that the present suit is barred by law. According to him the plaintiff has failed to demonstrate compliance with the restrictive conditions stipulated in Section 186 of the Companies Act 2013 regarding grant of loan thereby rendering the 8. Learned senior advocate appearing for the defendant has submitted that all suits of commercial nature cannot be brought within the ambit of a commercial dispute under the Act of 2015. In support of such contentions he has relied upon 2017 SCC Online Del 8088and 2021 SCC online Cal 35of the Act of 2015 makes it clear that the definition is exhaustive and not inclusive. Moreover the 22nd category in section 2(1)(c) of the Act of 2015 has stated that other commercial disputes will be notified by the central government According to him this amplifies and emphasizes the fact that the legislature had intended to set out an exhaustive enumeration of limited cases of commercial disputes. In support of such contention he has relied upon 2007Supreme Court Cases 685Ltd. v Cooperative Bank Employees Union 9. Learned senior advocate appearing for the defendant has submitted that the legislature has consciously identified and earmarked only 21 categories and subcategories of commercial disputes The Court should not enhance the scope of the commercial dispute as has been defined under the Act of 2015 by reading into it for adding to the definition. The Court should lean against a construction which has the effect of reducing the statute to futility. In support of such contention he has relied upon All India Reporter 1961 Supreme Court 1107learned senior advocate appearing for the defendant has contended that the rationale for limiting the scope of commercial disputes is also judicially recognised. He has contended that the Court should apply the purposive construction as recognised in All India Reporter 1955 Supreme Court 661and the order dated February 13 2020 passed in GA No. 22319 CS no. 1119and others v Usha Agarwal) to contend that the plaintiff cannot rely upon section 2(c)of the Act of 2015 as the plaintiff is not a merchant or a banker or a financer or a trader whose ordinary transaction is to grant loans. He has relied upon 2020 Volume 8 Supreme Court Cases 401and 2014 Volume 3 Supreme Court Cases 92to contend that a company engaged in real estate cannot have money lending as ordinary transactions Indian Kanoon South City ProjectsLtd vs Ideal Real Estates Pvt. Ltd on 7 April 2021 12. Learned senior advocate appearing for the defendant has relied upon 1990 Supplement Supreme Court Cases 785Co. Ltd. v. Custodian of vested forests Palghat & Anr.) 1993 volume 3 Supreme Court Cases 6322001 Volume 8 Supreme Court Cases 2571985 volume 1 Supreme Court Cases 51to contend that it is hazardous to interpret a word in accordance with the definition in another statute more so when the subject matter is not dealing with the cognate subject 13. Relying upon 1994 Volume 1 Supreme Court Cases 243learned senior advocate appearing for the defendant has contended that the expression service in other statute should not be imported to understand or define service within the meaning of the Act of 2015 14. Learned senior advocate appearing for the defendant has submitted that the object and purpose of the Consumer Protection Act 1986 and the Goods and Services Tax Act are different to those of the Act of 2015. Services under the Consumer Protection Act 1986 includes any services which may not be commercial in nature. The definition of services under the Goods and Services Tax Act is wide and all encompassing. He has relied upon 1999 volume 1 WLR 408and 2009 SCC online Bom to 2254and contended that the purpose of the enactment of the Goods and Services Tax Act was to include within its scope and ambit collection of taxes by way of indirect taxes from as many sources as possible so as to get rid of the then prevalent patchwork of diverse indirect taxes. According to him the purpose and object behind the enactment of Chapter V of the Finance Act 1994 and the Consumer Protection Act 1986 are completely different from the object and purpose of the Act of 2015 15. Learned senior advocate appearing for the defendant has relied upon 2009 volume 12 Supreme Court Cases 2091994 volume 1 Supreme Court Cases 243All India Reporter 1958 Supreme Court 353All India Reporter 1963 Supreme Court 1207all India Reporter 1960 Supreme Court 610for his contentions with regard to the definition of various words used in the statute 16. Learned senior advocate appearing for the defendant has contrasted the use of words in the Insolvency and Bankruptcy Code 2016 and the Act of 2015. He has relied upon 2019 volume 4 Supreme Court Cases 17in this regard 17. In support of the contention that the suit is barred under the provisions of the Bengal Money lenders Act 1940 learned senior advocate appearing for the defendant has relied upon 2016 SCC Online Cal 55111994 volume 1 Calcutta High Court Notes 492000 volume 2 Calcutta Law Journal 185Ltd vs Ideal Real Estates Pvt. Ltd on 7 April 2021 18. Referring to 1977 volume 2 Supreme Court cases 424learned senior advocate appearing for the defendant has submitted that the loan transaction is beyond the Memorandum of Association of the plaintiff and is therefore ultra vires the objects clause of the plaintiff 19. The plaintiff has filed the instant suit against the defendant for recovery of money lent and advanced. The plaintiff had lent and advanced sum of Rs. 5 crores to the defendant on May 30 2017 The defendant had agreed to pay interest at the rate of 15% per annum. The defendant had issued a balance confirmation as at March 31 2018 acknowledging the principal amount lent and advanced as also the interest payable thereon. The balance confirmation executed by the defendant has established with the principal amount that the plaintiff had lent and advanced to the defendant as also the agreed rate of interest therein being 15% per annum. The defendant had issued a tax deducted at source certificate for the transaction. According to the plaintiff since the defendant was not in a position to repay the amount advanced despite repeated demands by the plaintiff to do so the parties had agreed that the defendant will pay interest at the rate of 15% per annum with quarterly rest on and from October 1 2018. According to the plaintiff it had raised and submitted with the defendant invoices for the interest component at the agreed rate of 15% per annum with quarterly rest with the defendant. The defendant had accepted the same without any demur. The defendant had paid a sum of Rs. 3 crores for the period from November 20 2018 till January 10 2019. According to the plaintiff it had adjusted the sum of Rs. 3 crores as received from the defendant for the period from November 20 2018 the January 10 2019 first towards interest and then towards principal 20. The defendant has denied that it had agreed to pay interest at the rate of 15% per annum with quarterly rest from October 1 2018. In the affidavit filed by the defendant affirmed on December 15 2020 the defendant had acknowledged receipt of the sum of Rs. 5 crores as financial accommodation on the agreement and understanding that the plaintiff would be entitled to receive interest at the rate of 15% per annum on such loan. The defendant has also raised the issue of such interest been contrary to the provisions of the Bengal Money Lenders Act 1940 21. The balance confirmation that the defendant has executed as at March 31 2018 it acknowledged a sum of Rs. 5 62 87 671 to be due and payable by the defendant to the plaintiff. Such balance confirmation has a component of interest which is at the rate of 15% per annum. The balance confirmation executed by the defendant has established that the defendant agreed to pay interest at the rate of 15% per annum. The defendant had paid a sum of Rs. 3 crores subsequent to April 1 2018 till the filing of the suit and a sum of Rs. 30 lakhs subsequent to the filing of the suit. Therefore after deducting a sum of Rs. 3.3 crores from the sum of Rs. 5 62 87 671 a sum of Rs. 2 32 87 671 remains due and payable by the defendant to the plaintiff. The last payment that the defendant had made was on January 10 2019. On merits the defendant has not disclosed any defence to the claim of Rs 2 32 87 671 along with interest at the rate of 15% per annum. Therefore it would be appropriate to pass a decree in favour of the plaintiff for a sum of Rs. 2 32 87 671 along with interest at the rate of 15% per annum on and from January 11 2019 until realisation. The balance claim of the plaintiff on Indian Kanoon South City ProjectsLtd vs Ideal Real Estates Pvt. Ltd on 7 April 2021 account of interest as also principal are left open to be decided at the trial of the suit 22. The defence of the defendant has followed the classical adage of trying to be strong on law when the facts are dismal. This has been accentuated by the fact that while the affidavit in opposition in which the defendant had unconditionally acknowledged the transaction has 11 pages the notes on argument that has been filed is in excess of 32 pages. The defendant has relied upon 28 authorities in the notes of argument 23. The plaintiff has obtained registration under the Bengal Money Lenders Act 1940. The objection of the defendant that no decree or an order can be passed in favour of the plaintiff in absence of registration under the Act of 1940 therefore has no substance. So far as interest is concerned the Act of 1940 has allowed interest at the rate of 20% per annum for an unsecured loan under section 30A(i). In any event the Court has allowed interest at the rate of 15% per annum which is lower than the maximum interest allowed under the Act of 1940. The authorities cited at the bar on the Act of 1940 therefore need not be discussed at length 24. So far as the Act of 2015 is concerned the plaintiff is a legal entity incorporated under the provisions of the Companies Act 1956 and is engaged in the business of real estate development The defendant is also such entity and engaged in similar nature of business as that of the plaintiff The plaintiff has disclosed its memorandum of association which in its objects clause permits the plaintiff to lend and advance money. The transaction that the plaintiff has entered into therefore cannot be said to be ultra vires the objects clause of the memorandum of the plaintiff 25. In the facts of the present case the disputes in the suit can be held to fall within Section 2(1)(c)(i) of the Act of 2015. A real estate developer will have developed flats as stock in trade. While such developer is selling the flats in its stock it is a trader or a merchant of such flats. A real estate developer has lent and advanced money to another real estate developer in its ordinary course of business. Both do not suffer from any legal impediment preventing either of them to enter into the transaction. Whether the dispute involved in the suit is a commercial dispute or not within the meaning of the Act of 2015 depends upon the facts and circumstances of each case. In Swadha Builders Private Limitedin the facts of that case the Court had transferred the suit under Section 15 of the Act of 2015 to the Commercial Division. Following the ratio of Ambalal Sarabhai supra) of giving a restrictive construction to the words used in Sectin 2of the Act of 2015 it cannot be said that the suit does not involve a commercial dispute 26. Neither the word merchant nor the word trader has been defined in the Act of 2015. The ordinary meaning of such words as understood in the commercial world have to be applied more so since the provisions of the Act of 2015 deals with commercial dispute. The authorities that the parties have cited on this subject therefore need not be discussed at length. Since the Court has held that the disputes between the parties are commercial disputes within the meaning of section 2(1)(c)(i) of the Act of 2015 the question whether the definition of service as envisaged under the Consumer Protection Act 1986 for the Goods and Services Tax Act as introduced by the Finance Act 1994 need not be discussed. The authorities cited at the bar by the parties on such score also need not be discussed as being irrelevant in the facts and circumstances of the present case Indian Kanoon South City ProjectsLtd vs Ideal Real Estates Pvt. Ltd on 7 April 2021 27. IA No. GA 20 in CS 2519 is disposed of accordingly DEBANGSU BASAK J Indian Kanoon

Failure to produce necessary documents will lead to cancellation of registration for supply of goods: High Court of Madhya Pradesh

As per Section 129 of GST Act, there is no mandate for detaining goods merely because driver took an alternate route to reach the destination, if the goods are covered by valid E-way Bill. If all the requisite documents i.e., e-way bill and invoices are available, it cannot be said that no physical transportation of goods had been taken place. However, bringing all the requisite documents on record is a necessary condition. This auspicious judgment was recently passed by the High Court of Madhya Pradesh in the matter of M/S OM TRADING COMPANY V DEPUTY COMMISSIONER OF STATE TAX & ORS. [WRIT APPEAL NO.1823/2019] by Honourable Justice S.A.Dharmadhikari and Justice Anand Pathak. This Writ Appeal was preferred under Section 2 (1) of the Madhya Pradesh Uchch Nyayalaya Adhiniyam, 2005 and a challenge has been made to the order passed by the learned Single Judge whereby Writ Petition challenging the order passed by the learned appellate authority was dismissed. The brief facts leading to filing of the writ petition were that the appellant was a dealer registered under the Central Goods and Services Tax Act, 2017 and was engaged in selling and purchasing Clarified Butter (Ghee), Butter and other milk products under the name of M/s Om Trading Company Gwalior. On 05.10.2018, a show cause notice was issued by the Deputy Commissioner of State Tax Gwalior, in which it was stated that the business is carried only on papers and the e-way bills are downloaded but the concerned vehicles are not transporting any goods in actuality. The cause of action arose when a report to the Joint Commissioner, Gwalior transpired that the appellant had carried out business transactions with one M/s Macro International, Agra, and had purchased 8100 kgs and 1000 tin of clarified butter. Later a show cause notice was issued since bills were without supply of goods and in violation of law. The notice was issued under Rule 21 (b) of the Central Goods and Services Tax Rules 2017 and appellant failed to prove his e-way transaction details so his registration was cancelled. Thus, he preferred an appeal under Section 107, and Appellate Authority affirmed the order passed by the Commissioner of State Tax. Later he filed a writ petition whereby the orders passed by the Commissioner of State Tax as well as Appellate Authority have been affirmed. Being aggrieved, the present Writ Appeal has been filed. The HC stated that “Ongoing through the order passed by the appellate authority it appears that the detailed inquiry was conducted before passing the impugned order, in which certain discrepancies were found with regard to the business of the appellant. It was found that the appellant had failed to prove away bill transaction details, therefore, the registration was canceled. A proper opportunity of hearing was afforded to the appellant. No cogent documentary evidence is available on record to justify the stand taken by the appellant. The learned Single Judge has rightly come to the conclusion and dismissed the writ petition.” Court also observed that “The judgments relied on by the learned counsel for the appellant are of no assistance to the appellant inasmuch as the facts of those cases and the present case are altogether different. In the present case, in the detailed inquiry, it was found that no material was physically transferred from Agra to Gwalior.” Thus, the court held that “no fault can be found in the finding recorded by the learned Single Judge as well as learned appellate authority” and hence dismissed the writ appeal.

W.A.No.1823 2019 HIGH COURT OF MADHYA PRADESH BENCH AT GWALIOR Writ Appeal No.1823 2019 M s Om Trading Company Deputy Commissioner of State Tax and others Hon. Shri Justice S.A.Dharmadhikari Hon. Shri Justice Anand Pathak Shri Kamal Kumar Jain learned counsel for the appellant Shri R.P.Singh Kaurav learned Government Advocate for the JUDGMENT of the Madhya Pradesh Uchch Nyayalaya Adhiniyam 2005 challenge has been made to the order dt.27.08.2019 passed by the learned Single Judge in W.P.No.9885 2019 whereby Writ Petition challenging the order dt.18.04.2019 passed by the learned appellate authority has been dismissed. Brief facts leading to filing of the writ petition were that the appellant is a dealer registered under the Central Goods and Services Tax Act 2017and is engaged in carrying on the business of selling and purchasing of Clarified ButterButter and W.A.No.1823 2019 other milk products under the name of M s Om Trading Company Gwalior. On 05.10.2018 a show cause notice was issued to the appellant by the Deputy Commissioner of State Tax Gwalior in which it was stated that the appellant is carrying on the business only on papers and the e way bills are downloaded but the concerned vehicles are not transporting any goods in actual. The cause of action action arose when the report bearing No.229 Deputy Commissioner s office dt.29.08.2018 was addressed by the Dy. Commissioner Range A Agra to the Joint Commissioner Gwalior whereby it transpired that the appellant had carried out business transactions with one M s Macro International Kacharighat Agra and has purchased 8100 kgs. of clarified butter through bill No.53 on 31.07.2018 amounting to Rs.23 49 000 and again purchased 1000 Tin of clarified butter through bill No.54 amounting to Rs.40 50 000 . In view of aforesaid a show cause notice dt.05.10.2018 was issued as it was found that the bills were without supply of goods in violation of stipulations contained in the Act of 2017. The notice was purportedly issued under Rule 21of the Central Goods and Services Tax Rules 2017which mandates that the registration granted to the person is liable to be cancelled if the person issued invoice or W.A.No.1823 2019 bill without supply of goods or services in violation of the provisions of the Act or the rules made thereunder. Since the appellant failed to prove his e way transaction details his registration has been cancelled by order dt.09.01.2019. Being aggrieved the appellant preferred an appeal under Section 107 of the Act of 2017. The Appellate Authority taking into consideration the entire facts on record affirmed the order passed by the Dy.Commissioner of State Tax. Being aggrieved the appellant had filed writ petition before this Court bearing W.P.No.9885 2019 which came to finally decided on whereby the orders passed by Dy.Commissioner of State Tax as well as Appellate Authority has been affirmed. Being aggrieved the present Writ Appeal has been filed Shri Kamal Kumar Jain learned counsel appearing for the appellant submitted that the impugned order passed by the learned Single Judge is perverse and contrary to law and therefore the same deserves to be set aside. It is further contended that the order dt.09.01.2019 passed by the appellate authority is completely silent as to the provisions under which the impugned order has been passed and no good reason has been assigned for cancellation of GSTN of the appellant. The appellant further contended that the consignment was being W.A.No.1823 2019 transported by the transporter namely M.R. Road Lines through which the material was physically transported to Gwalior through Vehicle No. UP83T0223 and HR63A3341 and the route taken was from Agra to Kheragarh to Rajakheda then Dholpur to Morena and then Gwalior and in between there was no toll plaza located. Even though all the requisite documents i.e. e way bill and invoices were available therefore it can not be said that no physical transportation of goods had taken place from Agra to Gwalior. The appellant further contended that the said collection of tax and penalty by the respondents is through coercion and threat inspite of the fact that cancellation is covered by all the documents. It is alleged that it is an inter State sale and the respondents can not deny the same and demand and collect the tax in the manner in which they have done which is arbitrary and without jurisdiction. In such circumstances the impugned order deserves to be set aside Learned counsel for the appellant in support of his contention has placed reliance on the judgment of High Court of Kerala in the case of Kannangayathu Metals Vs. Asst State Tax Officer and others reported in38 GSTJ 482 Ker) to contend that as per Section 129 of GST Act there is no mandate for detaining goods merely because driver took an alternate route to reach the destination if the goods are covered W.A.No.1823 2019 by valid E way Bill. The writ petition was allowed. He further placed reliance on another judgment of High Court of Kerala in the case of Relcon FoundationsLtd. Vs. Asstt. State Tax Officer and others reported in38 GSTJ 482in which it is held that detention of the vehicle under Section 129 of GST Act is not justified Per contra the counter affidavit has been filed by the respondents. Shri R.P.Singh Kaurav learned Government Advocate appearing for the respondents State contended that the appellant had failed to bring on record any material before the authorities to show that the bills e way bills which were issued and are in question in the present litigation pursuance to which any material physically transferred from Agra to Gwalior or not and therefore there is no infirmity in the order dt.27.08.2019 passed by the writ court. He further contended that even assuming for the sake of argument that the alleged contentions of the appellant are true in that case there are number of toll plaza between Morena to Gwalior and if the goods had been physically transferred the appellant ought to have possessed the toll plaza receipts. It is also settled practice that the transporters used to choose shortest route available to transport the goods in order to save time and money. In the present case the route used to transport the goods is not only W.A.No.1823 2019 longer route but also takes more time to reach the destination It is very surprising and strange that instead of using four lane high way some alternative route which is longer has been used by the appellant. Cancellation of registration of GSTN was effected after affording due opportunity of hearing to the Learned Single Judge came to the conclusion that a detailed enquiry was conducted by the Commercial Department Range Agra and that the fact regarding issuance of invoices e way bills without any transportation of physical goods came into picture therefore verification in this regard was also done wherein it was actually found that the goods were not physically transported and that before initiating the proceeding against the appellant proper opportunity of hearing show cause notice was issued and only thereafter the order cancelling the GST registration was passed. The appellant had failed to produce the said documents to prove that the goods in question was physically transferred from Agra to Gwalior. As such finding no error in the judgment rendered by the appellate authority writ petition was dismissed Heard learned counsel for the parties For the purpose of convenience Rule 21 of the Rules of 2017 is reproduced hereinunder : W.A.No.1823 2019 “21. Registration to be cancelled in certain cases. The registration granted to a person is liable to be cancelled if the said person a) does not conduct any business from the declared place of business or b) issues invoice or bill without supply of goods or services or both in violation of the provisions of the Act or the rules made thereunder or c) violates the provisions of section 171 of the Act or the rules made thereunder d) violates the provision of rule 10A e) avails input tax credit in violation of the provisions of section 16 of the Act or the rules made thereunder or f) furnishes the details of outward supplies in FORM GSTR 1 under section 37 for one or more tax periods which is in excess of the outward supplies declared by him in his valid return under section 39 for the said tax periods g) violates the provision of rule 86B.” “22. Cancellation of registration. Where the proper officer has reasons to believe that the registration of a person is liable to be cancelled under section 29 he shall issue a notice to such person in FORM GST REG 17 requiring him to show cause within a period of seven working days from the date of the service of such notice as to why his registration shall not be cancelled 2) The reply to the show cause notice issued under sub ruleshall be furnished in FORM REG 18 within the period specified in the said 3) Where a person who has submitted an application for cancellation of his registration is no longer liable to be registered or his registration is liable to be cancelled the proper officer shall issue an order in FORM GST REG 19 within a period of thirty days from the date Rule 22 of the Rules of 2017 is also reproduced hereinunder : W.A.No.1823 2019 of application submitted under rule 20 or as the case may be the date of the reply to the show cause issued under sub ruleor under sub rule 2A) of rule 21A cancel the registration with effect from a date to be determined by him and notify the taxable person directing him to pay arrears of any tax interest or penalty including the amount liable to be paid under sub section 5) of section 29 3A) Where a certificate of registration has not been made available to the applicant on the common portal within a period of fifteen days from the date of the furnishing of information and particulars referred to in clauseof sub ruleand no notice has been issued under sub rulewithin the said period the registration shall be deemed to have been granted and the said certificate of registration duly signed or verified through electronic verification code shall be made available to the registered person on the common portal 4) Where the reply furnished under sub ruleof rule 21A is found to be satisfactory the proper officer shall drop the proceedings and pass an order in FORM GST REG 20 Provided that where the person instead of replying to the notice served under sub ruleor clause of sub section of section 29 furnishes all the pending returns and makes full payment of the tax dues along with applicable interest and late fee the proper officer shall drop the proceedings and pass an order in FORM GST REG 20 5) The provisions of sub ruleshall mutatis mutandis apply to the legal heirs of a deceased proprietor as if the application had been submitted by the proprietor himself.” The appellate authority taking into consideration the entire facts on record had affirmed the order passed by the W.A.No.1823 2019 Dy.Commissioner of State Tax holding that “...ik k x k fd lacaf kr vf kdkjh }kjk iath u fujLr fd s tkus ds iwoZ vihykFkhZ dks dkj.k crkvks lwpuki= fnukad 05&10&2018 dks tkjh fd k x k FkkA rRi pkr fnukad 09&01&2019 dks vihykFkhZ dk iath u fujLr fd k x k gSA iath u fujLrhdj.k dk eq[ vk kkj fMIVh dfe uj ¼fo vuq kk ½ okf.kfT d dj jsat ] vkxjk dki= fnukad 29&08&2018 gS] ftlesa fMIVh dfe uj ¼fo vuq kk ½ okf.kfT d dj jsat vkxjk }kjk vihykFkhZ esllZ vkse VªsfMax dEiuh ds laca k esa g izfrosfnr fd k x k gS fd muds }kjk esllZ ekdksZ baVjus kuy vkxjk ls eky ns kh kh Øe k i s 2349000@& oa #i s 4050000@& fcy Øekad 53 fnukad 31&07&2018 oa fcy Øekad 54 fnukad 31&07&2018 ls Ø djuk n kkZ k gSA vkxjk ds foØsrk O olkbZ esllZ ekdksZ baVjus kuy vkxjk ds kjk foHkkxh iksVZy ij eq[ O olk LFky ds vfrfjDr rhu vU LFkkuksa ij Hkh xksnke kksf"kr fd s x s gSa ftuesa ls dsoy d LFkku ij gh QeZ dh O olkf d xfrfof k kW gksuk ikbZ xbZ rFkk foØsrk O olkbZ esllZ ekdksZ baVjus kuy] vkxjk dh tkap ds le mDr ekg ls lacaf kr dksbZ fu fer izi= ugh ik s x sA blds vykok esllZ vkxjk&Xokfy j ikFkost izk0fy0 tkto VksyIyktk] lSa k] vkxjk ls fMIVh dfe uj] okf.kfT d dj jsat] vkxjk }kjk lwpuk izkIr dh xbZ ftlds vuqlkj mDr okgu ftuds fd okgu Øekad Øe k% UP 83 T 0223 oa okgu Øekad HR 63 A 3341 gSa] fu kkZfjr frfFk dks VksyIyktk ls ikl ugh gq gSaA blls Li"V gS fd Øsrk foØsrk nksuksa O olkb ksa kjk dsoy izi=ksa dk vknku&iznku fd k tk jgk gSA okLro esa eky dk dksbZ ifjogu ugha fd k tk jgk gSA vihykFkhZ }kjk eky ls lacaf kr tks dkxtkr izLrqr fd s gSa muls eky dk okLrfod vknku&iznku fd k tkuk izekf.kr ugh gksrk gSA lgk d vk qDr jkT dj] Xokfy j o`r rhu ds funsZ k ij jkT dj fujh{kd] Xokfy j o`r rhu }kjk izLrqr izfrosnu fnukad 05&12&2018 oa iapukek esa nf kZr irs ij vihykFkhZ dk O olk lapkfyr gksuk izrhr gksrk gS fdUrq muds }kjk mDr laO ogkj ds laca k esa dksbZ izfrosnu ugh fn k x k gSA l{ke vf kdkjh }kjk vihykFkhZ ds W.A.No.1823 2019 izdj.k esa fMIVh dfe uj] okf.kfT d dj jsat] vkxjk ds izfrosnu ds vk kkj ij iath u fujLr fd k x k gSA ftlesa muds }kjk foØsrk O olkbZ esllZ ekdksZ baVjus kuy vkxjk ds O olk LFky dh tkap dh xbZ rFkk ik k x k fd foØsrk }kjk eky dk okLrfod foØ ugh fd k x k gSA okLrfod :i ls eky dk vknku&iznku u djrs gq dsoy izi=ksa dk vknku&iznku fd k x k gS rFkk VksyIyktk vkxjk&Xokfy j ikFkost izk0fy0 tkto lSa k] vkxjk ds fjdkMZ esa Hkh mDr okguksa dk fu kkZfjr frfFk dks ogkW ls fudyuk ugha ik k x k gSA” 10. On going through the order passed by the appellate authority it appears that the detailed enquiry was conducted before passing the impugned order in which certain discrepancies were found with regard to the business of the appellant. It was found that the appellant had failed to prove e way bill transaction details therefore the registration was cancelled. A proper opportunity of hearing was afforded to the appellant. No cogent documentary evidence is available on record to justify the stand taken by the appellant. The learned Single Judge has rightly come to the conclusion and dismissed the writ petition The judgments relied on by the learned counsel for the appellant are of no assistance to the appellant inasmuch as the facts of those cases and the present case are altogether different. In the present case in the detailed enquiry it was found that no material physically transferred from Agra to W.A.No.1823 2019 In view whereof no fault can be found in the finding recorded by the learned Single Judge as well as learned appellate authority. Accordingly the writ appeal fails and is hereby dismissed. Judge

Permissible for the parties to be represented by their partners or siblings in mutual divorce proceedings: Karnataka High Court

The Hon’ble Supreme Court has also made it flexible in the context of representation of the parties by their close relatives, partners or siblings or any other person in whom they have complete trust to be appointed as a Power of Attorney holder. The Court can always satisfy itself about the genuineness of the intention of the parties who approach the Court either by themselves or through a Power of Attorney holder by way of video conferencing so that any doubts about the genuineness of the petition being filed before the Court is removed by held in the divorce proceedings of Aditya Jagannath and ors. Vs NIL, M.F.A.No.4453/2020 (FC).  In the present case, the appeal has been filed as the second appellant i.e, the wife in the divorce proceedings has not been permitted to be represented by her father as her power of attorney, so as to prosecute the petition filed by the parties under Section 13B(1) of the Hindu Marriage Act, 1955, through which the parties are seeking dissolution of their marriage by a decree of divorce by mutual consent. This Court relying on Amardeep Singh vs. Harveen Kaur [(2017) 8 SCC 746] which was held that  “Needless to say that in conducting such proceedings the court can also use the medium of videoconferencing and also permit genuine representation of the parties through close relations such as parents or siblings where the parties are unable to appear in person for any just and valid reason as may satisfy the court, to advance the interest of justice.” On account of the parties residing in different parts of the country or across the globe and owing to constraints of job or other constraints, such as illness etc., it may not be possible for both parties to sign and verify the pleadings and jointly present the petition for dissolution of their marriage by mutual consent before the Court of Law. Therefore, the provisions of the various enactments must be harmoniously read and interpreted, so as to make it conducive for availing or taking recourse through the appointment of a Power of Attorney holder, to represent a party in a proceeding. The Family Court may insist on satisfying itself that indeed the parties have an intention that they should seek a decree of divorce by mutual consent and in order to fully satisfy itself, the Court may, apart from examining the Power of Attorney holder representing any party, also through video conferencing, (which is now widely being used on account of the Covid-19 pandemic), examine the parties including the party who is represented through the Power of Attorney holder But one cannot ignore the fact that the Court must satisfy itself about the genuineness of the petition filed by the parties seeking dissolution of their marriage by a decree of divorce by mutual consent irrespective of whether it is filed through a Power of Attorney. Thus, the Court held that Court must satisfy itself about the genuineness of the petition filed by the parties seeking dissolution of their marriage by a decree of POA through video-conference. Therefore, the court held that we are of the view that the Family Court was not right in rejecting the application filed under Order III Rule 2 read with Section 151 of CPC and thereby, granting liberty to the parties to file a fresh petition under Section 13B(1) of the Act.

1 IN THE HIGH COURT OF KARNATAKA BENGALURU DATED THIS THE 10TH DAY OF NOVEMBER 2020 THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA THE HON’BLE MR. JUSTICE N.S.SANJAY GOWDA M.F.A.No.4453 2020MR. ADITYA JAGANNATH AGED ABOUT 31 YEARS S O. MR. R. JAGANNATH RESIDING AT 149 HOLLYWOOD TOWN SADAHALLI GATE NEW AIRPORT ROAD DEVANAHALLI BENGALURU 562 157. MRS. JAHNAVI DHANANJAYA AGED ABOUT 30 YEARS D O. MR B.V.DHANANJAYA W O. MR. ADITYA JAGANNATH RESIDENCE NO.12 5TH BLOCK 6TH CROSS 2ND MAIN KUMARA PARK WEST BENGALURU 560 020 PRESENTLY RESIDING AT 5735 COTE DES NEIGES APT 34 MONTREAL H3S 1Y7 CANADA. BY SRI M.S.SHYAMSUNDAR ADVOCATE) 1 . NIL ... APPELLANTS ... RESPONDENT 2 THIS MFA IS FILED UNDER SECTION 19(1) OF FAMILY COURTS ACT 1984 R W ORDER XLIII RULE 1 OF THE CODE OF CIVIL PROCEDURE AGAINST THE ORDER DATED 15 09 2020 PASSED ON I.A.NO.3 IN M.C.NO.1274 2020 ON THE FILE OF THE PRL. JUDGE FAMILY COURT BENGALURU REJECTING THE I.A. FILED UNDER ORDER 3 RULE 2 R W SECTION 151 OF CPC. THIS APPEAL COMING ON FOR ORDERS THIS DAY NAGARATHNA J. DELIVERED THE FOLLOWING: JUDGMENT This appeal was listed for admission yesterday and on hearing the learned counsel for appellants there being no respondent in this appeal it has been listed today for The appellants are husband and wife who are aggrieved by the order of the IV Addl. Principal Judge Family Court Bengaluru passed in M.C.No.1274 2020 by which their application filed under Order III Rule 2 read with Section 151 of the Code of Civil Procedure 1908has been rejected and as a result the second appellant before the Family Court i.e. wife has not been permitted to be represented by her father as her power of attorney so as to prosecute 3 the petition filed by the parties under Section 13B(1) of the Hindu Marriage Act 1955 through which the parties are seeking dissolution of their marriage by a decree of divorce by mutual consent. 3. We have heard learned counsel for appellants Sri.M.S.ShyamSundar and we have also heard the appellants who have appeared through video conference. At this stage itself it may be mentioned that while the first appellant husband who has appeared is in Bengaluru the second appellant wife is presently residing at Toranto Canada. Briefly stated the facts are that the appellants herein were married on 9th February 2017 at V.K.Convention Hall Yelahanka Satellite Town Bengaluru as per Hindu rites and customs. Their marriage was also registered before the Registrar of Marriages Gandhinagar Bengaluru. On account of lack of adjustment incompatibility etc. they were unable to cohabit together as husband and wife and therefore they decided to 4 separate. Since June 2017 they have been living separately despite all efforts made by the elders family members well wishers and others interested in their well being. According to the appellants owing to their incompatibility their marriage has broken down Therefore discussions the parties decided to dissolve their marriage by mutual consent. Therefore they filed a petition under Section 13B(1) of the Act seeking dissolution of their marriage by a decree of divorce by mutual consent in M.C.No.1274 2020 a copy of which is produced as Annexure “J” to this memorandum of appeal. The said petition was signed by the appellant husband and the father of the respondent wife on the strength of the Power of Attorney that had been executed by the second appellant in favour of her father dated 12 02 2020 at Montreal Canada and the same has been witnessed by two persons and has been notarized. A copy of the deed of Power of Attorney is produced as Annexure. In the said Power of Attorney the second appellant wife has stated that since she is residing at Montreal Canada 5 and was unable to be present in Bengaluru for the purpose of presenting the petition under Section 13B(1) along with the first appellant therefore she appointed her father as her Power of Attorney agent to file the said petition on her behalf to represent her in the Family Court to prepare sign file all pleadings to prosecute the petition for divorce by mutual consent and to give consent on her behalf for dissolution of marriage by a decree of divorce by mutual consent by engaging the services of an advocate to give evidence on her behalf to represent her in the Mediation and to obtain copies of documents and generally to do all other acts for conduct of the petition for a decree of divorce by mutual consent. She has also stated that all acts deeds and things lawfully done by her Power of Attorney shall be construed as acts deeds and things done by her and she would ratify and confirm the same. On the strength of the Power of Attorney dated 12 02 2020 the first appellant and the Power of Attorney holder of the second appellant signed the petition under Section 13B(1) of the Act and presented the same before the Family Court at Bengaluru in M.C.No.1274 2020. 6 Thereafter the first appellant and Power of Attorney holder of the second appellant appeared and an application under Order III Rule 2 read with Section 151 of CPC was filed by way of abundant caution. On the said application the Family Court heard the matter and ultimately rejected the said application by granting liberty to the parties to file a fresh petition under Section 13B(1) of the Act by impugned order dated 15 09 2020. Being aggrieved the parties have preferred this appeal. At this stage itself it may also be mentioned that this appeal is filed by the first appellant who is the husband and the second appellant who is the wife through her father who is the Power of Attorney of his Appellants’ counsel contended that the Family Court was not right in rejecting the application filed under Order III Rule 2 of CPC and thereby directing the parties to file fresh petition under Section 13B(1) of the Act. As a result the petition filed by the appellants under Section 13B(1) of the Act has also been rejected on the premise 7 that the said petition was not signed and verified by the second appellant who is presently residing in Toranto Canada and that presentation of the said petition by the Power of Attorney holder her father along with the first appellant was not permissible in law. He submitted that such a reasoning is not acceptable having regard to the fact that owing to liberalization and globalization there is movement of parties from one part of the world to another it would be difficult for the parties to sign the pleadings verify and appear in person in such cases particularly in the present times when owing to Corona Virus Covid 19 pandemic traveling is not permitted nor feasible and Court proceedings or business are being conducted through video conference. He contended that there is no bar under the CPC or under the Family Courts Act 1984 nor under the provisions of the Act which would disentitle the Power of Attorney holder of a party from signing and verifying the pleadings or to present a petition for dissolution of marriage by a decree of divorce by mutual consent or to prosecute such a petition. The Family Court ought not to have rejected the application 8 filed by the appellants which was by way of abundant caution as in the very first instance on the strength of the Power of Attorney executed by the second appellant in favour of her father appointed him as her Power of Attorney holder and the petition was presented by the parties represented by the Power of Attorney holder. He further submitted that in the instant case the parties have discussed the matter at length and have arrived at a decision to dissolve their marriage by mutual consent and the said decision has been arrived at by them on their own free volition there being no undue influence or coercion from any quarter. Therefore there is no impediment in the instant case for the father of the second appellant to act as her Power of Attorney holder signed and verified the pleadings and presented the petition along with the first appellant and also to represent the second appellant in the proceedings before the Family Court. In this regard he relied upon a decision of this Court in the case of Komal S. Padukone vs. Principal Judge Family Court particularly Paragraph No.13 and also drew our attention 9 to Paragraph No.14 where the facts are identical to the present case. Even though in the said case it related to the Power of Attorney acting on behalf of the respondent the same would not make any difference to the present case. He also relied upon another decision of the Bombay High Court in the case of Harshada Bharat Deshmukh vs. Bharat Appasaheb Deshmukhand the judgment of the Division Bench of the Madras High Court in the case of Sudha Ramalingam vs. Registrar General High Court of Judicature at Madras266186] wherein under the provisions of the Act permission was granted for the Power of Attorney holder to institute proceedings and also to conduct the same. 12. Learned counsel for the appellant also placed reliance on a judgment of the Andhra Pradesh High Court in the case of Dasam Vijay Rama Rao vs. M.Sai Sri ALD 2015 4 757] wherein permission was granted for a party to be represented by a Power of Attorney after referring to the Evidence Act 1872 Family Courts Act 1984 Hindu Marriage Act 1955 and Powers of Attorney Act 1882. Hence he submitted that the impugned order may be set aside and the matter may be remanded to the Family Court for disposal of the petition in accordance with 11 13. The detailed narration of the facts and contentions would not call for any reiteration except to highlight the fact that the appellants herein namely the first appellant husband and the second appellant wife through her Power of Attorney holder who is none other than her father filed a petition jointly under Section 13B(1) of the Act. On the strength of the Power of Attorney dated 12 02 2020 executed by the second appellant in favour of her father he signed and verified the pleadings along with the first appellant. This is because the second appellant herein now residing in Toranto Canada could not travel to appear for the purpose of filing the petition as she was then at Montreal Canada. By way of abundant caution an application was filed under Order III Rule 2 read with Section 151 of CPC seeking permission of the Court by the Power of Attorney holder father of the second appellant to represent her in the proceeding. The Family Court has rejected the said application. 14. Prior to considering the judgments relied upon by the learned counsel for the appellants it would be 12 useful to refer to Order III Rule 1 of CPC Section 10 of the Family Courts Act 1984 Section 18 of the Evidence Act 1872 and Section 2 of the Powers of Attorney Act 1882. They read as under: The Code of Civil Procedure 1908 Order III Rule 1) 1. Appearances etc. may be in person by recognized agent or by pleader.—Any appearance application or act in or to any Court required or authorized by law to be made or done by a party in such Court may except where otherwise expressly provided by any law for the time being in force be made or done by the party in person or by his recognized agent or by a pleader appearing applying or acting as the case may be on his behalf: Provided that any such appearance shall if the Court so directs be made by the party in recognized agents of parties by whom such appearances applications and acts may be made or done are— 13 persons holding powers of attorney authorising them to make and do such appearances applications and acts on behalf of such parties b) persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the Court within which limits the appearance application or act is made or done in matters connected with such trade or business only where no other agent is expressly authorized to make and do such appearances applications and acts. The Family Courts Act 198410. Procedure generally. Subject to the other provisions of this Act and the rules the provisions of the Code of Civil Procedure 1908 and of any other law for the time being in force shall apply to the suits and proceedings other than the proceedings under Chapter IX of the Code of Criminal Procedure 1973before a Family Court and for the purposes of the said provisions of the Code a Family Court shall be 14 deemed to be a civil court and shall have all the powers of such court. 2) Subject to the other provisions of this Act and the rules the provisions of the Code of Criminal Procedure 1973 or the rules made thereunder shall apply to the proceedings under Chapter IX of that Code before a Family Court. 3) Nothing in sub section or sub section shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject matter of the suit or proceedings or at the truth of the facts alleged by the one party and denied by the other. The Indian Evidence Act 1872 Section 18) proceeding or his agent.—Statements made by a party to the proceeding or by an agent to any such party whom the court regards under the circumstances of the case as expressly or impliedly authorised by him to make them are 15 By suitor in representative character : Statements made by parties to suits suing or sued in a representative character are not admissions unless they were made while the party making them held that character. Statements made by— 1) By party in subject matter: Persons who have any proprietary or pecuniary interest in the subject matter of the proceeding and who make the statement in their character of persons so interested or 2) By person from whom derived : Persons from whom the parties to the suit have derived their interest in the subject matter of the suit are admissions if they are made during the continuance of the interest of the persons making the statements. The Powers of Attorney Act 1882 Section 2) power of attorney.—The donee of a power of attorney may if he thinks fit execute or do any instrument or thing in and with his own name and signature and his own seal where sealing is required by the authority of the donor of the 16 power and every instrument and thing so executed and done shall be as effectual in law as if it had been executed or done by the donee of the power in the name and with the signature and seal of the donor thereof. This section applies to powers of attorney created by instruments executed either before or after this Act comes into force. In fact as already submitted by learned counsel for appellant taking recourse to the appointment of a Power of Attorney for the purpose of representing one of the parties to a dispute is an enabling provision and such a provision is of great assistance to the parties who are not in a position to personally prosecute a case or defend it by signing and verifying the pleadings appearing in the Courts for giving evidence and for doing all such other acts as are necessary for the prosecution of a case or for defending a case as the case may be. In recent times we find that the parties who seek for dissolution of their marriage by a decree of divorce by mutual consent do so after long negotiation and discussion some times they being located at different 17 parts of the globe through skype telephonically or use of other forms of technology such as whatsapp calls video conferencing etc. On account of the parties residing in different parts of the country or across the globe and owing to constraints of job or other constraints such as illness etc. it may not be possible for both parties to sign and verify the pleadings and jointly present the petition for dissolution of their marriage by mutual consent before the Court of Law. This is so in the instant case. In such circumstances one of the parties to the petition may avail of the facility of appointing a Power of Attorney agent in whom the party has full trust and confidence to represent her or him in a proceeding to be filed as in the instant case before the Family Court or any other Court seeking matrimonial or any other relief. Therefore the provisions of the various enactments must be harmoniously read and interpreted so as to make it conducive for availing or taking recourse through appointment of a Power of Attorney holder to represent a party in a proceeding. This is particularly as in the instant case where parties are seeking dissolution of their marriage by a decree of divorce 18 by mutual consent. Moreover in such cases a party can carefully think over the matter and appoint a person in whom the party would have full trust and confidence to be as her or his Power of Attorney holder. It is on the strength of such a document of Power of Attorney that the Power of Attorney holder would represent a party to jointly file a petition for dissolution of their marriage through mutual consent on behalf of the executor or Power of Attorney. The Family Court may insist on satisfying itself that indeed the parties have an intention that they should seek a decree of divorce by mutual consent and in order to fully satisfy itself the Court may apart from examining the Power of Attorney holder representing any party also through video conferencing examine the parties including the party who is represented through the Power of Attorney holder. That merely because one of the parties would file the petition seeking dissolution of marriage by mutual consent jointly with the other party through a Power of Attorney one cannot ignore the fact that the Court must satisfy itself about the genuineness of 19 the petition filed by the parties seeking dissolution of their marriage by a decree of divorce by mutual consent irrespective of whether it is filed through a Power of Attorney. In fact the filing of such a petition is an exception to what has been stated in Section 23 of the Act. Even so the Court ought not to be pedantic but must apply a flexible procedure which is in accordance with law and not a procedure but not one which is incongruent in law. In fact recently the Hon’ble Supreme Court in the case of Amardeep Singh vs. Harveen Kaur8 SCC 746] while considering Section 13B(2) of the Act which stipulates a cooling off period of six months which is also a period of locus poenitentiae after filing a petition of divorce under Section 13B(1) of the Act so as to give an opportunity to the parties to rethink over the decision and thereafter to confirm their decision six months later has made the said provision less rigid and more pro litigants by bearing in mind the changed circumstances and peculiarities of the case. Nevertheless in the said case it has been observed that the period of six months should be 20 waived owing to the circumstances of the particular case the exigencies of the situation and bearing in mind the interest of the parties so that justice would be subserved in the matter. In this regard the Hon’ble Supreme Court has observed that the period mentioned in Section 13B(2) could be construed to be as directory and not mandatory and it would be open to the Court to exercise its discretion in the facts and circumstances of each case where there are no possibilities of parties to reconcile cohabit and there are no chances of alternative rehabilitation. In Paragraph No.21 of the said judgment the Hon’ble Supreme Court has also observed as under: “Needless to say that in conducting such proceedings the court can also use the medium of videoconferencing and also permit genuine representation of the parties through close relations such as parents or siblings where the parties are unable to appear in person for any just and valid reason as may satisfy the court to advance the interest of justice.” 18. A reading of the above would clearly indicate that the Hon’ble Supreme Court has also made it flexible in 21 the context of representation of the parties by their close relatives partners or siblings or any other person in whom they have complete trust to be appointed as a Power of Attorney holder. In fact as already noted the Court can always satisfy itself about the genuineness of the intention of the parties who approach the Court either by themselves or through a Power of Attorney holder by way of video conferencing so that any doubts about the genuineness of the petition being filed before the Court is 19. On a perusal of the aforesaid observations of the Hon’ble Supreme Court it is clearly permissible for the parties to be represented by their partners or siblings in a proceeding filed under Section 13B(1) of the Act or any other similar provision in any other enactment which provides for dissolution of marriage by a decree of divorce by mutual consent. In the circumstances we find that in the instant case Family Court ought to have permitted the father of appellant No.2 for signing and verifying the 22 pleadings as her Power of Attorney holder and to represent her in the proceedings. Moreover for the sake of satisfying and genuineness of the petition the Family Court could always resort to video conferencing through the medium of which both the parties could appear apart from the Power of Attorney holder of the second appellant appearing for her so as to completely satisfy itself about the genuineness of the petition filed by the parties just as in this appeal the appellants have both appeared through video conferencing first appellant from Bengaluru and the second appellant from Toranto Canada. In this regard we can also briefly advert to the decisions relied upon by the learned counsel for appellants. 21. This Court speaking through His Lordship Raveendran J. in the case of Komal S. Padukone vs. Principal Judge Family Court at Bangalore Cityraised the following questions for consideration: “6.1. The following questions arise consideration : Whether a party cannot seek exemption from personal appearance and 23 permission to engage counsel unless he she appears in person before the Family Court. b) Whether a respondent who is unable to appear personally or who does not appear personally has no to contest a proceeding before Family Court. Whether the Family Court having granted permission to the petitioner before it to engage a Legal Practitioner deny such permission to the respondent in the same proceedings.” Ultimately after referring to provisions of the CPC and the Family Courts Act namely Sections 9 to 17 thereof observed at Paragraph Nos.10 to 14 as under: “(10) There is nothing in Act or Rules which prohibits a petition being filed by an Authorised Agent or requires a petition should be presented by the petitioner in person. Therefore there is no bar to a petition being presented to the Court by an Agent with an application seeking permission to be represented by a legal practitioner. 11) A party may choose to appear through and be represented by an Authorised Agent other than a Legal Practitioner in which event permission under Section 13 is not necessary. A Family Court having regard to the facts and circumstances may of course make a specific order for the personal appearance of a party. Only if such an order is made the party has to make an application for exemption personal appearance if he she is not in a position to appear in the matter. Even if the Family Court refuses permission to the parties to be represented by a legal practitioners the parties may be represented by Authorised Agents other than a Legal Practitioners. But if one side has been permitted to be represented by a Legal Practitioner the Family Court should not refuse permission to the other side to be represented by a Legal Practitioner. To 25 do so would be in violation of principles of natural justice. 12) The ideal situation under the general scheme of the Family Courts Act would be where proceedings are initiated by a husband or wife by presenting a petition in person notice is issued to the other side other side appears in person neither party is represented by any lawyer unless permitted by the Court the Family Court at endeavours to bring about a settlement either by itself or with the assistance of Welfare Experts counsellors When such endeavour fails the respondent is given an opportunity to file objections and then evidence is recorded and decision is rendered and the entire process is takes only about 3 to 6 months. But an ideal situation is different from normal practical situation. For example in a place like Bangalore each Family Court has a huge pendency. Every day a large number of cases are listed and called for preliminary hearing for conciliation hearing on matters evidence and final arguments. Very few of them can be taken up for evidence or hearing. It is practically impossible to take up for evidence all cases listed. The cases drag 26 on for several years for one reason or the other. Each case undergoes thirty to forty hearing dates in some many more. Many of or working somewhere. Many of women litigants require the assistance of others even to come to Court. In such circumstances to require all parties to be personally present on every date of hearing would add to the misery and hardship of litigants. The Family Court should therefore adopt a practical and humane approach and arrange its work suitably having regard to the workload in such a manner that the parties before it are not put to unnecessary 13) A combined reading of the Act and the Rules with relevant provisions of CPC make the following evident : A petition to the Family Court may be presented by a petitioner either in person or through an Authorised Agent. The petition may be presented even by an Advocate as an Authorised Agent. But if the petitioner wants ‘representation’ by a legal practitioner he she should seek and obtain the permission of the Family Court. A respondent who is served with notice of the proceedings may either appear in person or 27 enter appearance through an Authorised Agent including a Legal Practitioner). But if the respondent wants to be represented by a Legal Practitioner in the proceedings he she should seek and obtain the permission of the Family Court.In regard to proceedings before the Family Court ‘entering appearance’ response to a notice summons through an Practitioner) represented in the proceedings by a legal practitioner. While representation through Legal Practitioner without permission is barred entering appearance in a case in response to a notice summons through a Legal Practitioner is not barred if a Legal Practitioner having entered appearance wants to represent party in the proceedings permission of the Family representation. When one party has been permitted to be represented by a Legal Practitioner such permission cannot under any circumstances be denied to the other party. vi) The Authorised Agent can prosecute or defend the proceedings and represent the party unless and until the Family Court makes a specific order to the parties to 28 appear in person either on a specified date or on further hearing dates depending on the facts of the case and stage of the case. Once an order for personal appearance has been specifically made a party will have to seek exemption from appearance if he she is not able to appear in the matter. Where a Family Court has a large backlog of cases and there is no possibility of taking up all cases listed on a day it may restrict the requirement of personal appearance of parties to specified stages like conciliation and evidence. Where it is possible to do so consistent with the nature and circumstances of the case the Family Court either directly or Counsellors in the first instance assist and persuade the parties in arriving at a settlement in respect of the subject matter of the 14) In this case the wife is staying in United States. She left India before the notice was served. She has stated that it will be difficult for her to come over to India before July 1999. She therefore sought permission to engage a appearance till July 1999. There is nothing unreasonable about either of the requests. As a result of rejection of her applications she 29 has been placed ex parte. If the order is allowed to stand it would cause irreparable injury to her.” Ultimately this Court set aside the order of the Family Court in the said case. In Harshada Bharat Deshmukh vs. Bharat Appasaheb Deshmukh the Bombay High Court considered Section 10 of the Family Courts Act Order III Rule 1 of CPC Order VI Rules 14 and 15 of CPC and various judgments on the aspect of representation of a party through a Power of Attorney and in the context of Section 13B of the Act observed that there is nothing under the said provision which would bar a Power of Attorney holder to represent a party and observed as under: “(10) Section 13B of the Hindu Marriage Act do not contain any provision abrogating the power of power of attorney holder under the Code of Civil Procedure and therefore the procedure governing the proceedings filed under Section 13B of the Hindu Marriage Act would be governed by Order III as well as Order VI of 30 the Code of Civil Procedure. The Judge Family Court has not given any consideration to the provisions governing the procedure in relation to the proceedings of mutual divorce filed under Section 13B of the Hindu Marriage Act. It is imperative on the part of the Family Court to entertain the application for divorce by filing mutual consent presented to it on the ground that the parties have been residing separately for more than a year and they have not been able to live together and they have mutually agreed to dissolve the marriage. The procedure for dissolving the marriage is set out in sub sectionof Section 13B which mandates the Court on being satisfied that a marriage has been solemnized and that the averments in the petition for mutual consent filed by the parties is true to pass a decree of divorce dissolving the marriage after affording an opportunity to the parties and after making such enquiry as it thinks fit. The Court has to thus ascertain the expenses of a marriage and irrevocable break down of the marriage with no possibility of any 23. A Division Bench of the Madras High Court in case of Sudha Ramalingam vs. Registrar General 31 High Court of Judicature at Madras 266 has opined that a party residing abroad could be represented through a Power of Attorney and there is no legal impediment to grant permission to a party for being represented by a Power of Attorney. But the party should make personal appearance before Court as and when stipulated or directed by Family Court and it could be by utilization of video conferencing technology 24. Similarly in Dasam Vijay Rama Rao vs. M.Sai Sri on a detailed discussion of the various provisions of the Family Courts Act Order III Rule 1 of CPC Section 13B(1) of the Act the Andhra Pradesh High Court permitted the representative of a party through a Power of Attorney holder and ultimately in Paragraph No.21 observed as under: “(21) Increasingly Family Courts have been noticing that one of the parties is stationed abroad. It may not be always possible for such parties to undertake trip to India for variety of good reasons. On intended day of examination of a particular party 32 proceedings may not go on or even get completed possibly sometimes due to pre occupation with any other more pressing work the Court. But however technology particularly in the Information sector has improved by leaps and bounds. Courts in India are also making efforts to put to use the technologies available. Skype is one such facility which is easily available. Therefore the Family Courts are justified in seeking the assistance of any practicing lawyer to provide the necessary skype facility in any particular case. For that purpose the parties can be permitted to be represented by a practitioner who can bring a mobile device. By using the skype technology parties who are staying abroad can not only be identified by the Family Court but also enquired about the free will and consent of such party. This will enable the litigation costs to be reduced greatly and will also save precious time of the Court. Further the other party available in the Court can also help the Court in not only identifying the other party but would be able Accordingly I direct the Family Court to entertain the I.A. as it is maintainable and permit the GPA of the 2nd petitioner in O.P. to 33 represent and depose on behalf of the 2nd petitioner in the O.P. and the Family Court shall also direct such GPA or any legal practitioner chosen by him to make available the skype facility for the Court to interact with the 2nd petitioner who is staying at Melbourne Australia and record the consent of 2nd petitioner and proceed with the matter thereafter as expeditiously as is possible.” 25. Therefore in view of the aforesaid discussion we are of the view that the Family Court was not right in rejecting the application filed under Order III Rule 2 read with Section 151 of CPC and thereby granting liberty to the parties to file a fresh petition under Section 13B(1) of the Act. Hence the said order is set aside. 26. Permission is granted to the second appellant to be represented through her Power of Attorney holder who is none other than her father on the strength of the Special Power of Attorney executed by her on 12 02 2020. 27. Further in order to satisfy itself the Family Court is at liberty to direct the parties especially the second appellant to appear through video conference or 34 skype before the Court and if such a direction is issued the second appellant shall comply with the said direction. 28. The Family Court to dispose of the petition filed by the parties in accordance with law. Since the parties are represented by their common counsel they are directed to appear before the Family Court on 26 11 2020. 29. The appeal is allowed and disposed in the aforesaid terms. Sd JUDGE Sd JUDGE

The safety of a woman is valid grounds for the transfer of a criminal case: High Court of Uttarakhand

It is a widely accepted legal maxim that justice must not only be done, but also be seen to be done. In any case where hearing of a criminal case at a particular court would compromise of the safety or security of a woman, it would be unacceptable and in violation of the above maxim. This was covered in a judgement passed by the single member bench of the High Court of Uttarakhand consisting of Jusitce Alok Kumar Varma in the case of Shilpi Lawrence Elenjikal v the State of Uttarakhand and another [Transfer Application no: 2 of 2021] on the 28th of May 2021. A transfer application was filed by the applicant Ms Shilpi Lawrence Elenjikal seeking for the transfer of State vs. Parikshit Arvind Joshi [Criminal Case No.1185 of 2019] which is pending before the court of the Additional Chief Judicial Magistrate, Kotdwar, District Pauri Garhwal to Chief Judicial Magistrate, Udham Singh Nagar. The applicant contended that she apprehends a threat to her life and fears prejudice in the conducting of her case in the court of Additional Chief Judicial Magistrate, Kotdwar, District Pauri Garhwal and hence pleaded for the case to be transferred under Section 407 of the Code of Criminal Procedure, 1973. The applicant also brought to the notice of the court that the honourable Supreme Court on 29th November 2019 had directed the respondent no:2 refrain from attempting any contact with the applicant and had on 23rd November 2020 called for the transfer of Sessions Trial no: 21 of 2019 from court of the Additional Sessions Judge, Haridwar to the court of the Additional Sessions Judge, Udham Singh Nagar.

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL THE HON’BLE SRI JUSTICE ALOK KUMAR VERMA TRANSFER APPLICATION NO.21 28TH MAY 2021 Between: Ms. Shilpi Lawrence Elenjikal and State of Uttarakhand and another …Respondents …Applicant Hon’ble Alok Kumar Verma J. This transfer application is filed under Section 407 of the Code of Criminal Procedure 1973 seeking transfer of Criminal Case No.1185 of 2019 “State vs. Parikshit Arvind Joshi” under Sections 354 D (ii) 506 and 509 of I.P.C. pending before the court of the Additional Chief Judicial Magistrate Kotdwar District Pauri Garhwal to the court of the Chief Judicial Magistrate Udham Singh Nagar or to the court of the Chief Judicial Magistrate Nainital. Notice is personally served on Parikshit Arvind Joshi the respondent No.2 but he is not present. Heard Ms. Shilpi Lawrence Elenjikal applicant in person and Mr. P.S. Uniyal the learned Brief Holder for the State the respondent no.1 through video Ms. Shilpi Lawrence Elenjikal the applicant in person submitted that she apprehends threat to her life and will be prejudiced in conducting her case in the court of Additional Chief Judicial Magistrate Kotdwar District Pauri Garhwal. She submitted that the Hon’ble Supreme Court in Special Leave Petition No.6146 of 2019 vide order dated 29.11.2019 had specifically directed the respondent No.2 to desist from attempting to maintain any form of contact with the applicant and the Hon’ble Supreme Court by order dated 23.09.2020 transferred the Sessions Trial No.21 of 2019 from the court of the Additional Sessions Judge Haridwar to the court of the Additional Sessions Judge Udham Singh Nagar. In these circumstances the applicant in person requested to transfer the Criminal Case No.11819 “State vs. Parikshit Arvind Joshi” from the court of the Additional Chief Judicial Magistrate Kotdwar District Pauri Garhwal to the court of the Chief Judicial Magistrate Udham Singh Nagar. Mr. P.S. Uniyal the learned Brief Holder for the State submitted that the State has no objection. In the matter of transfer the general principle that justice must not only be done but must also be seen to be done should be taken into consideration. The applicant shows that her apprehension is reasonable and it is not merely imaginary. In Sesamma Phillip vs. P. Phillip 1 SCC 405 the Hon’b’le Supreme Court transferred a criminal case on the ground of safety of the woman petitioner. The Hon’ble Supreme Court transferred the Sessions Trial No.21 of 2019 from the court of the Additional Sessions Judge Haridwar to the court of the Additional Sessions Judge Udham Singh Nagar. Therefore in view of the above facts and circumstances of the case the transfer application No.2 of 2021 is allowed. Criminal Case No.1185 of 2019 “State vs. Parikshit Arvind Joshi” which is pending before the court of the Additional Chief Judicial Magistrate Kotdwar District Pauri Garhwal is transferred to the court of the Chief Judicial Magistrate Udham Singh Nagar. The record of the case shall be forthwith transferred to the transferee court which shall take up the matter and shall dispose of the same according to law as expeditiously as possible. 10. A certified copy of this order be sent to the court of the Additional Chief Judicial Magistrate Kotdwar District Pauri Garhwal and to the court of the Chief Judicial Magistrate Udham Singh Nagar for necessary compliance. ALOK KUMAR VERMA J. Dt: 28th May 2021 JKJ Pant

If the e-portal for bidding is a common platform and the respondent exhibits no reason to deliberately exclude the petitioner then there is no malafide alleged against them : Delhi High Court

Technology has caused a huge change in the ways things are processed. Though it is majorly positive, glitches and other unfortunate events do occur, causing irreparable harm. This was held in the judgment passed by a two- judge bench HON’BLE MR. JUSTICE VIPIN SANGHI HON’BLE MR. JUSTICE JASMEET SINGH, in the matter of BVG INDIA LTD V. NORTH DELHI MUNICIPAL CORPORATION & ANR. [W.P.(C.) No. 9148/2021 and C.M. No. 28488/2021], dealt with an issue where the petitioner filed a petition seeking a direction to the respondent North Delhi Municipal Corporation to allow the petitioner to submit its financial bid, and after the same is submitted, for its consideration along with other financial bids received by the respondent in respect of the tender. The petitioner is an established player in the field of providing FMS and has been offering its services to various Government bodies. The respondent Nr.DMC floated the aforesaid tender. The bids were required to be submitted electronically on the web portal. Since the petitioner was interested in participating in the tender in question, the petitioner successfully uploaded its Technical Bid on 16.08.2021. However, when the petitioner attempted to upload its Financial Bid, the petitioner experienced a technical glitch on the portal. The petitioner then contacted the respondents and the respondent asked the petitioner to continue to upload its Financial Bid and not to worry about the apparent error. However, subsequent to that, the petitioner was not able to upload its Financial Bid, as each time the petitioner tried to submit its Financial Bid, a pop-up message emerged which stated “Bid uploaded by Department is altered”. The petitioner claims that, once again, the IT support officers of the respondents were contacted, but despite repeated attempts even at their end, the petitioner’s Financial Bid could not be uploaded by the closing time Counsel for the petitioner stated that the petitioner cannot be made to suffer for no fault of its. It was a glitch in the respondent’s web portal, which led to the petitioner’s inability in uploading the Financial Bid After hearing both the parties The Hon’ble Delhi High Court dismissed the petition and held though this Court does not have the expertise to determine as to whether there was a glitch or not, the contention of the respondents and the surrounding circumstance will have to be accepted based on preponderance of probability. Click here to view judgement

IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(C.) No. 9148 2021 and C.M. No. 28488 2021 BVG INDIA LTD. ..... Petitioner Date of Decision: 03.09.2021 Through: Mr. Neeraj Kishan Kaul Senior Advocate with Mr. Sandeep S. Ladda NORTH DELHI MUNICIPAL CORPORATION ANR. Through: Ms. Mini Pushkarna Advocate. HON BLE MR. JUSTICE VIPIN SANGHI HON BLE MR. JUSTICE JASMEET SINGH VIPIN SANGHI J.The petitioner has preferred the present writ petition to seek a direction to the respondent North Delhi Municipal Corporationto allow the petitioner to submit its financial bid and after the same is submitted for its consideration along with other financial bids received by respect of tender Reference No. D PM Elect.) TC 2021 22 floated by the respondent for providing Facility Management Servicesto Dr. Shyama Prasad Mukherjee Civic Centre at J.L.N. Marg for a period of three years i.e. 2021 24. The case of the petitioner is that the petitioner is an established player in the field of providing FMS and has been offering its services to various Government bodies. The respondent Nr.DMC floated the aforesaid tender W.P.(C.) No. 9148 2021 on 22.07.2021. The bids were required to be submitted electronically on the web portal www.tenderwizard.com NORTHDMCETENDER. The last date for submission of the bids initially notified was 09.08.2021 up to 15:30 hours. However on 06.08.2021 the tender closing date was extended to 16.08.2021 up to 15:30 hours. The case of the petitioner is that since the petitioner was interested in participating in the tender in question the petitioner successfully uploaded its Technical Bid on 16.08.2021. However when the petitioner attempted to upload its Financial Bid the petitioner experienced a technical glitch on the respondent i.e. The petitioner was required to firstly upload a Summary Sheet as part of the Financial Bid. The said Summary Sheet though uploaded showed wrong figures and the summary sheet was not found to be matching with the BOQ Line Items. In this regard the petitioner even sent an e mail to the respondent at 15:18 hours on 16.08.2021. The petitioner then contacted the respondents and the respondent asked the petitioner to continue to upload its Financial Bid and not to worry about the apparent error. However subsequent to that the petitioner was not able to upload its Financial Bid as each time the petitioner tried to submit its Financial Bid a pop up message emerged which stated “Bid uploaded by Department is altered”. The petitioner claims that once again the IT support officers of the respondents were contacted but despite repeated attempts even at their end the petitioner’s Financial Bid could not be uploaded by the closing time which was 15:30 hours on 16.08.2021. Consequently at 15:42 hours the petitioner sent an e W.P.(C.) No. 9148 2021 mail to the respondent calling upon the respondent to grant one day’s extension to the petitioner to submit its Financial Bid. Since the respondents did not reply to the said e mail and also to a further reminder sent by the petitioner the petitioner has preferred the present writ petition. The submission of Mr. Neeraj Kishan Kaul learned senior counsel for the petitioner is that the petitioner cannot be made to suffer for no fault of its. It was a glitch in the respondent’s web portal which led to the petitioner’s inability in uploading the Financial Bid. He submits that when the summary sheet was uploaded the same showed an error as it was not matching with the BOQ Line Items. The respondents acknowledged this mistake when contacted and asked the petitioner to continue to submit upload the Financial Bid. Mr. Kaul submits that there is no reason why the petitioner would not upload its Financial Bid in time since the petitioner is a serious player in the field and was interested in offering its bid for the tender in question. He further submits that on a hyper technical ground the respondent could not deny the petitioner the right to participate in the tendering process. He submits that it would be in the larger public interest to have greater competition as the tender involves expenditure of public monies. 5. Mr. Kaul submits that only on 25.08.2021 when the petitioner to file the present petition the respondents issued a communication rejecting the petitioner’s request for extension of time for submission of the Financial Bid. The said communication inter alia stated that since the petitioner claimed that it could not submit its bid due to some W.P.(C.) No. 9148 2021 technical glitch in the tendering portal the matter was referred by the respondent to its IT Department. The communication further stated that the petitioner’s request for extension of last date for submission of bids cannot be acceded to as it was confirmed by the respondent’s IT Department that the e tender portal www.tenderwizard.com NORTHDMCETENDER was working fine on 16.08.2021 i.e. on the last date of submission of the bids. 6. Mr. Kaul submits that since the respondents are claiming that there was no glitch at their end in relation to the working of the aforesaid web portal the matter could be referred to an expert from a credible institution like the IIT Delhi who could examine the respondent’s portal and the petitioner’s computer systems and report to the Court whether or not there was indeed a glitch in the web portal of the respondent. He submits that there is a precedent in this regard when this Court referred the matter to an expert to examine a similar issue in respect of a tender electronically submitted by the bidder. In this regard he has relied upon L&T Hydrocarbon Engineering Limited Vs. Oil & Natural Gas Corporation Limited & Another 249 DLT 382 No. 9148 2021 a few documents in this regard. She submits that on the petitioner raising a grievance that the petitioner could not upload its Financial Bid due to an technical glitch the respondent took up the matter with Tenderwizard which is an organization of the Government itself. The response received from Tenderwizard reads as follows: to an “Respected Sir Greeting from Tenderwizard !!! With ref. to the trailing mail and reg. issue of tender not submitted by M s. BVG India Ltd. against Tender No. D PM(Elec) CC TC 2021 22 1 dated 22.07.2021 on North DMC‟s e tender portal: www.tenderwizard.com NORTHDMCETENDER due error on the portal. Keeping in view of the above please be informed that our support person received the call from M s. BVG around 3:20PM at the very last few minutes. The last date & time of tender submission was 16.08.2021 up to 3:30PM. Calling person from M s. BVG informed that they‟re unable to submit the tender due to the issue while uploading excel bid and error message displayed as “bid uploaded by the department is altered.” We suggested bidder not to make any change to the downloaded file and while troubleshooting the same closing time passed and bidder couldn’t complete the submission because of issue with excel bid file at their end. Considering the above it could easily be concluded that North e tender issue with there was system application being utilized at bidder’s end. Further troubleshooting couldn’t be fruitful as bidder approached our support desk at the very last moment which bidder shall always take care of. This is for your kind information and perusal. Thanking and assuring you of our best services at all the time. W.P.(C.) No. 9148 2021 Thanks Sahib Kumar 8800991868 abhishek.kumar@mcd.nic.in” 17 1:13PM emphasis supplied) 8. Ms. Pushkarna has also pointed out that on 16.08.2021 other bidders uploaded several documents on the same web portal. In this regard the Audit Trail Details placed on record by the respondent shows that documents were uploaded on the website in question at 15:13:04 15:13:08and 15:10:19. Thus the web portal was working properly as it was able to receive other documents uploaded by the other bidders. Having heard learned counsels and considered the matter we are not inclined to grant the request made by Mr. Kaul for calling for a technical report in the facts of the present case. 10. Firstly in our decision dated 22.07.2021 in W.P.(C.) No. 6873 2021 titled Kundan International Private Limited vs. Govt. of NCT of Delhi we have held that if a bidder delays the uploading of its electronic bid to the last minute it must take the consequences of its failure in uploading the same. We have held as follows: “We do not find any merit in this petition. It was the responsibility of the petitioner to ensure that its bid is uploaded by 5 pm on 20.07.2021. Petitioner should have known that there could be technical glitches and should have kept accommodation therefor. Moreover it is only the petitioner‟s ipse dixit that he made an endeavour to upload its bid at 4:58 pm when the system hanged. In these proceedings we are not inclined to get into the disputed questions. We W.P.(C.) No. 9148 2021 therefore leave it open to the petitioner to raise its grievances if any in appropriate civil proceedings. Petition is dismissed.” 11. On this short ground the petition is liable to be dismissed. In any event on account of the insistence of Mr. Kaul that an inquiry into the possibility of the respondent’s Web Portal malfunctioning at the relevant time would show that the petitioner was not at fault when we heard the matter on 02.09.2021 we had put it to Mr. Kaul whether it would be possible to state with certainty as to which is the document that the petitioner sought to upload as its Financial Bid on 16.08.2021 which was not accepted on the web portal of the respondent with the remarks “Bid uploaded by Department is altered”. He desired to take instructions on the said aspect of the matter and the matter was adjourned for today. 12. Today when the hearing resumed Mr. Kaul has fairly stated that since the Financial Bid was not successfully uploaded on 16.08.2021 there is no way that the petitioner can satisfy with certainty as to what document was sought to be uploaded as the petitioner’s Financial Bid. He however submits that the petitioner is ready & willing to produce its Financial Bid for examination which the petitioner had attempted to upload on 16.08.2021. Since it cannot be said with certainty that the financial bid that the petitioner now wishes to provide for technical examination was the one that it was attempting to upload on 16.08.2021 before closing time in respect of which it got the response “Bid uploaded by Department is altered” we are not inclined to direct technical examination by an expert as W.P.(C.) No. 9148 2021 the possibility of the petitioner now producing a different document excel sheet from the one endeavoured to be uploaded cannot be ruled out. 13. We may also note that the decision relied upon by the petitioner in L&T Hydrocarbon Engineering Limited does not help the case of the petitioner. Firstly the technical expert was appointed by the Court with the consent of the parties. In paragraph 13 the Court had inter alia observed: “After carefully considering the submissions made by learned counsels for both sides we had opined that the aforesaid issue could be resolved if experts from an independent agency are appointed as Local Commissioners to examine the systems of both the parties at the cost of the petitioner. The said suggestion was accepted by both sides.”14. Secondly this was a case where the bidder claimed that its bid had already been uploaded on the website of the respondent ONGC within the stipulated deadline and the only issue was whether this contention of the petitioner was correct or incorrect. This is evident from paragraph 10 of the said judgment which reads as follows: “10. Mr. Salve learned Senior Advocate had argued that the entire issue hinges on whether the petitioner s Bid was uploaded on the website of the respondent No. 1 ONGC on 05.2.2018 within the stipulated deadline i.e. on or before 14:00 hrs. No. 9148 2021 Domestic Marketing of the petitioner company had clicked the “Submit Button” at 13:59 hrs. and the system of the respondent No. 1 ONGC did not reject the said Bid instead the response received was “document was successfully signed digitally”. As the webpage of the respondent No. 1 ONGC had retained the status “Saved” it made the petitioner s officer press the “Submit Button” a second time which also took place before the cut off time i.e. before 14:00 hrs. However after the system time on the e procurement webpage of the ONGC had struck 14:00 hrs. its system replaced the “Submit Button” with “Refresh Button”.”15. Consequently a direction was issued to the Local Commissioner Expert was to submit their report indicating: “13. … … … inter alia the exact time when the last file was uploaded by the petitioner on the system of the respondent No. 1 ONGC on 05.02.2018 and the number of occasions when the “Submit Button” was clicked by the petitioner and if so clicked specify the timings. Team I was directed to visit the premises of the petitioner at Mumbai and Team II was to visit the premises of the respondent No. 1 ONGC at Delhi. With the aforesaid directions the matter was adjourned to 26.2.2018 to await the reports of the two Teams.”. 16. However in the present case as noticed hereinabove the petitioner has admittedly not uploaded its Financial Bid for the reason that when the petitioner attempted to upload the same the uploading failed for the reason “Bid uploaded by Department is altered”. The petitioner is seeking to find fault with the web portal of the respondent for this purpose. The respondents have categorically denied the same as aforesaid. They have also demonstrated that other bidders were able to upload their bids at around the same time when the petitioner claims to have attempted to upload its bid W.P.(C.) No. 9148 2021 and failed. 17. Though not relied upon at the stage of hearing of the petition the petitioner has placed on record the decision in M s. Scania Commercial Vehicles India Private Limited Vs. Government of Karnataka & Others 2016 SCC OnLine KAR 6744. The submission of the petitioner in that case like in the present case was that there was a possibility of a technical glitch in the web portal of the respondent tender inviting authority. This submission was premised on a technical report produced by the petitioner. However this submission was rejected by the Court in the following words: “16. Having analyzed the contentions on that aspect though the petitioner has sought to rely on a technical report to suggest there is possibility of a technical glitch the said report cannot readily be relied on by this Court. The said report has been obtained by the petitioner themselves and not based on the order of this Court. That apart the report is based on the material made available to the technical expert by the petitioner and not based on the physical study of the e portal and the other material available with respondent No. 4 to thereafter arrive at a conclusion. On the other hand it is seen that e portal of the respondent No. 4 is a common platform provided for all government organizations as an initiative of e governance and there was no reason to deliberately exclude the petitioner by respondent No. 3 nor is malafide alleged against them. In the said process on the material noticed above it is seen that apart from the petitioner the respondents No. 5 and 6 have also uploaded at the same time and were successful. That apart respondent No. 4 has also brought on record the bids relating to the other tender procurements being uploaded on 25.08.2016 on the same e portal without log details irrespective of the other details the fact remains that at impediment. Further the Server W.P.(C.) No. 9148 2021 17:12:03:188 itself it is indicated as „Signature Verification failed‟ though not displayed on the screen which will indicate that the only probability is that the signature not being mapped was the error. Thereafter the petitioner has taken the clarification and on obtaining the certification of the digital signature has been successful in uploading. Hence though this Court does not have the expertise to determine as to whether there was a glitch or not the contention of the respondents and the surrounding circumstance will have to be accepted based on preponderance of probability.”(emphasis supplied) 18. However in the facts of that case the Court directed the bid of the petitioner which was uploaded as a “draft” to be considered since the uploading was completed till after passage of 01 minute 55:876 seconds from the closing time even though the same was started 22 minutes before the close of the time for uploading. We may notice that the relief granted to the petitioner in that case on equitable considerations does not accord with our view in Kundan International Private Limited is of no avail to the petitioner. 19. We therefore do not find any merit in this petition and dismiss the same leaving the parties to bear their respective costs. VIPIN SANGHI J. JASMEET SINGH J. SEPTEMBER 03 2021 B.S. Rohella W.P.(C.) No. 9148 2021

Prayer for suspension of sentence pending appeal should be considered liberally unless there is any statutory restriction: The High Court of Manipur

Where an appeal is preferred against conviction and the sentence imposed under Section 376 IPC in the High Court, the High Court has ample power and discretion to suspend the sentence. That discretion has to be exercised judiciously depending upon the facts and circumstances of each case. The aforementioned has been established by the Manipur high Court in the case of Shri Konsam Poirei v. The State of Manipur [MC (Cril.Appeal) No.10 of 2019] which was decided by a single judge bench comprising Justice M.V. Muralidaran on 21st June 2021. The facts of the case are as follows. The application had been filed by the petitioner for the suspension of the sentenced awarded to him by the Additional Session’s Judge for offences punishable under Sections 417 and 376 IPC. The prosecutrix lodged a written report on 20.9.2009 stating that she eloped with the petitioner-appellant on 17.09.2009 to be his wife, as the petitioner-appellant posed himself to be a divorce having no wife and children. Later on, it was learnt that the petitioner-appellant had legally wedded wife and children, and the petitioner-appellant had coaxed her to have sexual intercourse and thereby committed rape. On the basis of the above written report, the Officer-in-charge of SJM police station, registered an FIR bearing No. 185(9)2009 under Sections 376/417 IPC against the petitioner-appellant. The learned counsel for the petitioner-appellant has submitted that the trial Court has grossly erred in convicting and sentencing the petitioner-appellant for the offences punishable under Sections 417 and 376 of IPC. He contended that the trial court committed serious lapse in the investigation and that everything was done with the consent of the prosecutrix. 

IN THE HIGH COURT OF MANIPUR AT IMPHAL MC(Cril.Appeal) No.119 Ref:Criminal appeal No.119 Shri Konsam Poirei @ Inaoton Singh aged about 42 years s o K. Lukhoi Singh of Charangpat Maning Leikai P.O. P.S. & District Thoubal Manipur 795138. Versus . Applicant …. Respondent The State of Manipur. HON’BLE MR. JUSTICE M.V. MURALIDARAN For the Applicant s For the Respondent s Mr.Kh. Tarunkumar Advt. Mr.Y. Ashang PP. Date of hearing Date of Judgment & Order JUDGMENT & ORDER This application for suspension of sentence has been preferred by the petitioner appellant for suspending the sentence awarded to him by the Additional Sessions Judge for Crime against Women Manipur vide its order dated MC( cri.appeal) No. 119. Page 1 13.5.2019 passed in Sessions TrialCase no. 117 whereby the trial Court has convicted the petitioner appellant for the offences punishable under Sections 417 and 376 IPC as under: a) 6months simple Imprisonment for the offence u s 417 IPC. b) 10 years rigorous imprisonment for the offence u s 376 IPC and to pay fine of Rs. 10 000 in default to undergo 6 months simple As per the prosecution story the prosecutrix had lodged a written report on 20.9.2009 stating that she eloped with the petitioner appellant on 17.09.2009 to be his wife as the petitioner appellant posed himself to be a divorce having no wife and children. Later on it was learnt that the petitioner appellant had legally wedded wife and children and the petitioner appellant had coaxed her to have sexual intercourse and thereby committed rape. On the basis of the above written report the Officer in charge of SJM police station registered an FIR bearing No. 185(9)2009 under Sections 376 417 IPC against the petitioner appellant. After investigation the police filed charge sheet against the petitioner appellant under Sections 417 and 376 IPC. After committal the trial Court framed charges against the petitioner appellant for the offences punishable under Sections 417 and 376 IPC. After recording the prosecution evidence as well as the defence evidence the trial Court has convicted the petitioner appellant vide judgment dated MC( cri.appeal) No. 119. Page 2 06.5.2019 and sentenced the petitioner appellant to undergo the imprisonment as aforesaid vide order dated 13.05.2019. Challenging the conviction and sentence the petitioner appellant filed the criminal appeal and pending appeal the petitioner appellant sought suspension of sentence. The learned counsel for the petitioner appellant has submitted that the trial Court has grossly erred in convicting and sentencing the petitioner appellant for the offences punishable under Sections 417 and 376 of IPC. He would submit that the trial Court did not appreciate serious lapse committed by the investigating officer and that the investigating officer did not seize any clothes worn by the prosecutrix at the time of the alleged act of rape which was alleged to have been committed by the petitioner appellant. In fact the investigating officer has not visited the place where the act of rape sexual intercourse was alleged to have been committed by the petitioner appellant against her will. The learned counsel further submitted that in her statement under Section 161 Cr.P.C. as well as Section 164 Cr.P.C. and even in her deposition before the trial Court the prosecutrix stated that as she did not like the behaviour and nature of the petitioner appellant she stopped going to office of the petitioner appellant but on 17.09.2009 when Ms. Roji came to her residence and told her that the petitioner appellant wants to meet her at her residence without raising any objection she accompanied Ms.Roji to her residence to meet the petitioner MC( cri.appeal) No. 119. Page 3 appellant. According to the learned counsel the aforesaid statement clearly shows that she voluntarily went to meet the petitioner appellant and thereafter from the residence of Ms.Roji at Sagolnand Sayang Pukhri Mapal she without any objection accompanied the petitioner accused on his motorcycle to Tera. Further from Tera she along with the petitioner appellant went to the office Sub Registrar Imphal West for registration of their marriage and without any objection in front of the Marriage Officer the prosecutrix voluntarily put her signature in the marriage register to become the wife of the petitioner accused. Thus from the factual position it is clear that the prosecutrix is a consenting party and everything was done with her full knowledge and consent. The learned counsel for the petitioner appellant then submitted that the petitioner appellant was very much ready to marry the prosecutrix and the said fact was clearly seen from his statement that both the petitioner and the prosecutrix went to the office of the Registrar of Marriage for registration of their marriage. The learned counsel further submitted that the prosecutrix after elopement with the petitioner accused on 17.09.2009 accompanied him without any protest from Tera up to Thoubal on his motorcycle. While they were staying at Thoubal Houkha they were arrested by the police who came down from Singjamei police Station. Thus it is clear that if the prosecutrix does not like the petitioner appellant she could have raised her voice while travelling from Tera to Thoubal MC( cri.appeal) No. 119. Page 4 but she did not do so. In fact the prosecutrix went along with the petitioner appellant with her own consent to become his wife and only after arrest by the police she changed her mind being influenced the opinion of her family members and lodged the complaint and the trial Court failed to consider the aforesaid factual position in the impugned judgment. The learned counsel next submitted that if the petitioner accused had the intention to marry the prosecutrix no question of rape arises and since its inception the prosecution story has started with a false and fabricated complaint against the petitioner appellant and therefore the petitioner appellant is entitled to be released on bail during pendency of the appeal to secure the ends of justice. Per contra the learned Additional Public Prosecutor submitted that the trial Court after taking into consideration all the mitigating and aggravating circumstances convicted the petitioner appellant under Sections 417 and 376 IPC and sentenced him to undergo six months imprisonment under Section 417 IPC and ten years rigorous imprisonment under Section 376 IPC. He would submit that the trial Court was satisfied that the prosecution proved beyond reasonable doubt that the petitioner accused had raped the prosecutrix by cheating on 17.09.2009 by posing himself as divorcee having no wife and children. Since the conviction and sentence are based on oral and documentary evidence no question of suspending the sentence would arise and prayed for dismissal of the petition. MC( cri.appeal) No. 119. Page 5 This Court considered the submissions made by the learned counsel appearing on either side and also perused the materials available on record. The trial Court convicted the petitioner appellant for the offences punishable under Sections 417 and 376 IPC and sentenced him to undergo six months simple imprisonment for the offence under Section 417 IPC and ten years rigorous imprisonment for the offence under Section 376 IPC. The case of the prosecution is that the prosecutrix eloped with the petitioner appellant to be his wife as the petitioner appellant posed himself as a divorcee having no wife and children and later on she learnt that the he had legally wedded wife and children. Further case of the prosecution is that when both were staying at the house of his relatives at Tera the petitioner appellant had sexual intercourse with the prosecutrix without her consent. On the other hand it is the case of the petitioner appellant that the prosecutrix very well knew that the petitioner appellant is a married man having children however she only compelled the petitioner appellant for elopement and accordingly the prosecutrix eloped with the petitioner appellant on 17.09.2019 and at about 4.00 PM they proceeded to Sub Registrar Office Imphal West for registration of their marriage along with one advocate and konsam Sarat. At that time when the marriage Officer asked the prosecutrix whether the petitioner appellant had wife and children she replied that she knew that the petitioner MC( cri.appeal) No. 119. Page 6 appellant had wife and children and she was willing to marry him. Thereafter both of them signed in the marriage register book but the registration was not completed due to lack of some documents. Admittedly the said version of going to the Sub Registrar Office for registration of the marriage and signing in the register have not been dispute by the prosecution. Therefore the version of the prosecutrix that she did not know about the marital status of the petitioner who had legally wedded wife and children is highly doubtful. It appears that along with appeal papers the petitioner appellant filed a copy of the affidavit sworn by the prosecutrix before the Oath Commissioner Imphal West wherein she has stated that in order to fulfil their mutual wish she eloped with her lover Shri Konsam Poireiton Mangang on 17.9.2009 and to become his wife with her full consent and free will without inducement by any other persons and they married on same day i.e. 17.09.2009 as Keina Katpa marriage ceremony was performed at the residence of K.Sharatkumar Singh Sagolband Khamnam Leirak Imphal West. The petitioner appellant also produced the copy of the register of marriage bearing Serial No. 106 of 2009 wherein both the petitioner and the prosecutrix names have been mentioned as husband and wife however the signature of the Registrar is found MC( cri.appeal) No. 119. Page 7 Since the elopement was on 17.09.2009 and the marriage is said to have been registered on the same day it is highly doubtful whether the petitioner appellant committed rape on the prosecutrix as alleged in the written complaint lodged by her while they are staying at the relative’s house of the petitioner appellant. Since the elopement was on her own volition and further on knowing that the petitioner appellant was a married man the version of the prosecutrix that the petitioner appellant posed himself as a divorcee having no legally wedded wife and children is highly questionable. Anyhow all these are merits of the appeal and the same cannot be gone into at the interim stage of considering the plea of suspension Now the point that arises for consideration is whether the petitioner appellant is entitled to grant of suspension of sentence as prayed for pending of sentence. In the instant case the petitioner appellant challenged the judgment of the trial Court on various grounds as could be seen from the grounds of appeal. According to the petitioner appellant the trial Court failed to analyse the evidence of the petitioner appellant that the prosecutrix gave her consent to have sexual intercourse with the petitioner appellant under the impression that he does not have wife and children and in fact she had knowledge that the petitioner appellant had his wife but was separated and married to some other person before they fell in MC( cri.appeal) No. 119. Page 8 love. Admittedly on a reading of the impugned judgment the said aspect has also not been dealt with by the trial Court in proper perspective. Prima facie nothing has been shown to the Court to substantiate the plea of the prosecution that by making a false promise the petitioner appellant had sexual intercourse with the At this juncture the learned counsel for the petitioner appellant contended that the appeal would not be taken up for hearing in the near future and that the petitioner appellant has to look after his children and nobody is available It is settled that when a convicted person is sentenced to a fixed period of sentence and the appellant Court finds that due to practical reasons that appeal cannot be disposed of expeditiously it can pass appropriate orders for suspension to look after them. of sentence. In Bhagwan Rama Shinde Gosai and others v. State of Gujarat 1999) 4 SCC 421 the honorable Supreme Court held: “3. When a convicted person is sentenced to a fixed period of sentence and when he files an appeal under any statutory right suspension of sentence can be considered by the appellate court liberally unless there are exceptional circumstances. Of course if there is any statutory restriction against suspension of sentence it is a different matter. Similarly when the sentence is life imprisonment the consideration for suspension of sentence could be of a different approach. But if for any MC( cri.appeal) No. 119. Page 9 reason the sentence of a limited duration cannot be suspended every endeavour should be made to dispose of the appeal on merits more so when a motion for expeditious hearing of the appeal is made in such cases. Otherwise the very valuable right of appeal would be an exercise in futility by efflux of time. When the appellate court finds that due to practical reasons such appeals cannot be disposed of expeditiously the appellate court must bestow special concern in the matter of suspending the sentence so as to make the appeal right meaningful and effective. Of course appellate courts can impose similar conditions when bail is granted. 4. In This case as the High Court was not inclined to hear the appeal expeditiously we are of the view that the sentence passed on the appellants can be suspended on some stringent conditions. We therefore suspend the sentence and direct the appellants to be released on bail on each of them executing a bond to the satisfaction of the additional Sessions judge Nadiad .” It is also settled that the sentence can be suspended in a case where there are reasonable grounds for believing that the accused is not guilty of the offence for which he is convicted and he is not likely to commit any offence during the period of suspension of sentence. In the instant case as stated supra the petitioner appellant challenged the judgment of the trial Court on divers grounds as could be seen from the grounds of appeal and prima facie the petitioner appellant has got an arguable case on merits as the specific case of the petitioner appellant that the prosecutrix accompanied him without raising any alarm on a motorcycle is not rebutted. The MC( cri.appeal) No. 119. Page 10 fact that the accused and the prosecutrix were together located at a place by the police based on a missing complaint given by the parents of the prosecutrix also shows that there is more to it than meets the eye. The Hon’ble Supreme Court in the case of Bhagwan Rama Shinde Gosai held that the prayer for suspension of sentence pending appeal should be considered liberally unless there is any statutory restriction. The law does not in any way affect the powers of the Court to grant parole and a sentence awarded under the relevant law can be suspended by the appellate Court. Where an appeal is preferred against conviction and the sentence imposed under Section 376 IPC in the High Court the High Court has ample power and discretion to suspend the sentence. That discretion has to be exercised judiciously depending upon the facts and circumstances of each case. That apart while considering the suspension if sentence each case has to be considered on the basis of the nature of the offence the manner in which the occurrence had taken place whether bail granted earlier had been misused. There was no straitjacket formula which could be applied in exercising discretion and the facts and circumstances of each case would govern the exercise of judicious discretion while considering and application filed by a convict under Section 389 Cr.P.C. Prima facie in the case on hand the petitioner appellant has made out an arguable case on merits. MC( cri.appeal) No. 119. Page 11 It is apposite to mention that the appeal is of the year 2019 and due to practical reasons the appeal cannot be taken up in the near future and disposed of expeditiously. Taking into consideration the above facts and circumstances of the case this Court feels that the challenge of the petitioner appellant to his conviction for the offences punishable under Sections 417 and 376 IPC is based on strong grounds. In the light of the decision of the Hon’ble Supreme Court in the case of Bhagwan Rama Shinde Gosaiand the fact that the present appeal would take substantial time to come up for final hearing without expressing any opinion on the merits of the appeal this Court is Inclined to suspend the sentence imposed on the appellant subject to stringent conditions. Accordingly this petition for suspension of sentence is allowed and it is ordered that the substantive sentence passed by the trial Court vide judgement date 13.05.2019 in Sessions Trial Case No. 15 of 2017 against the petitioner appellant shall remain suspended till the final disposal of the Criminal Appeal No.119 provided the petitioner appellant executes a personal bond in the sum of Rs.1 00 000 with two sureties of Rs.50 000 Rupees Fifty thousand) each to the satisfaction of the trial Court and on an undertaking that he shall appear before the Court as and when ordered to do so till the disposal of the aforesaid appeal on the conditions indicated below: MC( cri.appeal) No. 119. Page 12 That the petitioner appellant will appear before the trial Court on the first working day of every month commencing from July 2021 till the appeal is decided. 2) That the petitioner appellant shall not change the place of residence. Similarly the sureties also shall not change the place of 3) That the amount of fine awarded by the trial Court if not paid shall be paid by the petitioner appellant in the trial Court within one month from the date of receipt of a copy of this order. 4) The trial Court shall keep the record of attendance of the petitioner appellant in a separate file. Such file be registered as Criminal Miscellaneous Case related to original case in which the petitioner appellant was tried and convicted. A copy of this order shall also be placed in that file for ready reference. The said Criminal Miscellaneous Case shall not be taken into account for statistical purpose relating to pendency and disposal of cases in the trial Court. 5) In case the petitioner appellant does not appear before the trial Court the learned trial Judge shall report the matter to the High Court for cancellation of bail. MC( cri.appeal) No. 119. Page 13 The petitioner shall not indulge in any criminal activities during the period of suspension of sentence. 7) It is made clear that this Court has not delved into the merits of the appeal and the opinion expressed by this Court is prima facie and shall not prejudice the final hearing of the appeal in any manner. JUDGE John kom MC( cri.appeal) No. 119. Page 14

SLP Against HC Order Rejecting Review Petition Cannot be Heard When the Main Judgement Is Not Challenged: SC

In the case of T.K. David v. Kuruppampady Service Co-operative Bank Ltd. & Ors., ( Special Leave Petition no. (C)NO.10482 Of 2020), the Supreme Court in the judgment dated 5-10-2020,  had laid down that Special Leave Petition, when filed against a High Court order, which rejected the review order, cannot be entertained when the main judgment is not challenged. The brief facts of the case is that the petitioner was an employee of Kuruppampady Service Co-operative Bank. He was suspended and a disciplinary inquiry was conducted by the Bank. The Bank vide order dated 20.03.2003 dismissed the petitioner consequent to the domestic enquiry. Consequently following these occurrences, the Cooperative Arbitration Court by order dated 18.08.2010 gave award by which punishment of dismissal was altered as decrease to a lower rank. In view of the order (dated 18.08.2010) both the petitioner just as the Bank filed Appeal No. 78 of 2010 and No. 81 of 2010 respectively. The Cooperative Tribunal concerning its judgment (dated 16.08.2011) discarded both the advances by which the punishment of compulsory retirement (on 20.03.2003) was forced with terminal advantages or benefits subject to liability, assuming any, appropriately surveyed or duly assessed. Against the request for the Cooperative Tribunal, a writ petition was filed by the petitioner before the learned Judge of the Kerala High Court, in which writ petition was dismissed by judgment (dated 31.07.2013) against which judgment Writ Appeal No. 1313 of 2013 was filed by the petitioner before the Division Bench. The Division Bench of the High Court vide the judgment (dated 11.03.2015) dismissed the writ appeal filed by the petitioner. Then again he filed a Special Leave Petition, consecutively a review petition and a curative petition was also filed, which was also dismissed. Following the above proceeding, the petitioner had filed a Review Petition High Court through a judgment dated 06.02.2020. Aggrieved with the judgment dated 06.02.2020, this special leave petition has been filed. The judges in this case consisted of Justice Ashok Bhushan, R. Subhash Reddy, M.R. Shah. “This Court had earlier considered the question as to whether the special leave petition challenging the order rejecting review petition is maintainable when the main judgment of the High Court is not under challenge. We may refer to judgment of this Court in Municipal Corporation of Delhi Vs. Yashwant Singh Negi, (2013) 2 SCR 550. In the above case, a special leave petition was preferred against an order rejecting the review petition. A preliminary objection was raised that special leave petition is not maintainable since the main judgment is not challenged. In paragraph 1 of the judgment, facts have been noticed, which are to the following effect:- “1. This special leave petition has been preferred against the order dated 11.09.2009 passed by the High Court of Delhi in Review Petition No. 79 of 2009 in LPA No. 1233 of 2006. Mr. Nidhesh Gupta, learned senior counsel appearing for the Respondent raised a preliminary objection that the special leave petition is not maintainable since the main judgment rendered by the High Court on 5.11.2008 in LPA No. 1233 of 2006 was not challenged.” “The rationale for not entertaining a special leave petition challenging the order of High Court rejecting the review petition when main order in the writ petition is not challenged can be easily comprehended. Against the main judgment the SLP having been dismissed earlier the same having become final between the parties cannot be allowed to be affected at the instance of petitioner. When the main judgment of the High Court cannot be effected in any manner, no relief can be granted by this Court in the special leave petition filed against order rejecting review application to review the main judgment of the High Court. This Court does not entertain a special leave petition in which no relief can be granted. It is due to this reason that this Court in Bussa Overseas and Properties Private Limited and Anr. (supra) has held that principle of not entertaining special leave petition against an order rejecting the review petition when main judgment is not under challenge has become a precedential principle. We reiterate the above precedential principle in this case again.”

IN THE CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITIONJUDGMENT ASHOK BHUSHAN J This special leave to appeal has been filed against the Division Bench judgment of the Kerala High Court dated 06.02.2020 rejecting the Review Petition No. 8018 filed by the petitioner in Writ Appeal No. 3914. Brief facts necessary to consider this special leave petition need to be noted. The petitioner was an employee of Kuruppampady Service Co operative Bank. Petitioner was suspended and disciplinary inquiry was conducted by the Bank The Bank vide order dated 20.03.2003 dismissed the petitioner consequent to domestic enquiry. There has been series of litigation between the petitioner and the Bank and thereafter Cooperative Arbitration Court by order dated 18.08.2010 gave award by which punishment of dismissal was modified as reduction to a lower rank. Against the order dated 18.08.2010 both the petitioner as well as the Bank filed Appeal No 78 of 2010 and No. 81 of 2010 respectively. The Cooperative Tribunal vide its judgment dated 16.08.2011 disposed of both the appeals by which the punishment of compulsory retirement on 20.03.2003 was imposed with terminal benefits subject to liability if any duly assessed. Against the order of the Cooperative Tribunal a writ petition was filed by the petitioner before the learned Single Judge of the Kerala High Court which writ petition was dismissed by judgment dated 31.07.2013 against which judgment Writ Appeal No. 13113 was filed by petitioner before the Division Bench. The Division Bench of the High Court vide its judgment dated 11.03.2015 dismissed the writ appeal filed by the petitioner Aggrieved by the Division Bench judgment dated 11.03.2015 the petitioner filed a Special Leave Petition No. 24231 of 2015 before this Court which was dismissed by order dated 21.08.2015 which is as follows: We do not see any merit in this special leave petition which is hereby dismissed.” After dismissal of special leave petition a Review Petition No. 1521 of 2016 was filed in this Court which too was dismissed on 02.03.2016. The petitioner also filed a Curative Petition No. 2416 which also was dismissed on 12.05.2016. After the aforesaid proceedings in this Court the petitioner filed a Review Petition R.P. No. 8018 in Writ Appeal No.399 of 2014 which review petition has been dismissed by the High Court vide its judgment dated 06.02.2020. Aggrieved with the judgment dated 06.02.2020 this special leave petition has been filed. Learned counsel for the petitioner challenging the order on the review submits that earlier dismissal of the special leave petition on 21.08.2015 shall not operate as res judicata. He further submits that the petitioner was dismissed on petty charges due to political vendetta. He further contends that Cooperative Arbitration Court which has imposed punishment of reduction in rank was wrongly substituted by compulsory retirement by the Cooperative Tribunal. Learned counsel for the petitioner has also referred to judgment of this Court in Kunhayammed and Ors. Vs. State of Kerala and Anr. 6 SCC 359 We have heard learned counsel for the petitioner and have perused the records. The earlier Special Leave PetitionNo. 24231 of 2015 was filed by the petitioner challenging the Division Bench judgment dated 11.03.2015 by which his Writ Appeal was dismissed. The Review Petition No 805 of 2018 giving rise to this special leave petition has been filed to review the judgment dated 11.03.2015 of the Division Bench. A review petition as well as curative petition was filed by the petitioner after dismissal of his earlier special leave petition. The judgment of this Court in Kunhayammed and Ors. Vs. State of Kerala and Anr supra) laid down that where the special leave petition is dismissed there being no merger the aggrieved party is not deprived of any statutory right of review if it was available and he can pursue it. In paragraph 34 this Court made following observations: “34. ................But where the special leave petition is dismissed — there being no merger the aggrieved party is not deprived of any statutory right of review if it was available and he can pursue it. It may be that the review court may interfere or it may not interfere depending upon the law and principles applicable to The Division Bench of the High Court by the impugned judgment dated 06.02.2020 has not dismissed the review petition as not maintainable. The High Court proceeded to meticulously examine the question and after consideration came to the conclusion that there is no mistake or omission amounting to error apparent on the face of the record. In paragraphs 8 and 9 of the judgment High Court held: “8. This Court in paragraph Nos.11 and 12 of the judgment passed in writ appeal elaborately considered the conversion of punishment to compulsory retirement with sufficient reasonings and justified the Co operative Tribunal for setting aside the punishment of reduction to lower rank and imposing compulsory retirement. The aforesaid findings are made consciously after making due deliberations on the materials on record and the findings of the single Bench of this Court. The findings of this Court are supported by the decisions of the Apex Court in Hussain Sasansaheb Kaladgi v. State of Maharashtra and J.K.Synthetics Ltd. v. K.P.Agarwal and Another(2) SCC 433]. 9. So there is no omission to consider the legality or correctness of the punishment or power of the Co operative Tribunal to impose such a punishment of compulsory retirement. There is no mistake or omission amounting to error apparent on the face of the record as contended by the revision petitioner In view of the legal proposition laid down by the Supreme Court in the decisions referred above this Court is not inclined to rehear or reconsider the above findings as the review is not an appeal in disguise. Hence the review petition fails and is dismissed The review petition filed by the petitioner thus was rejected on merits. 10. The first question which need to be considered is as to whether the present special leave petition challenging the above review order dated 06.02.2020 is maintainable when the Division Bench judgment dated 11.03.2015 has neither been challenged nor can be challenged in this special leave petition. The consequence of the rejection of the review petition is that the High Court has refused to review the judgment of the Division Bench dated 11.03.2015 passed in Writ Appeal No. 399 of 2014. As noted above the Division Bench judgement dated 11.03.2015 was questioned by petitioner by special leave petition in this Court which was dismissed on 21.08.2015. When the Special Leave Petition No 24231 of 2015 challenging the earlier judgment has already been dismissed such dismissal has become final between the parties. In this special leave petition the petitioner cannot challenge the earlier order dated 11.03.2015 against which he unsuccessfully has earlier filed the special leave petition. When the order dated 11.03.2015 is unassailable by the petitioner in this special leave petition no relief can be granted to petitioner which may have effect in any manner diluting modifying or reversing the earlier judgment dated 11.03.2015. 11. This Court had earlier considered the question as to whether the special leave petition challenging the order rejecting review petition is maintainable when the main judgment of the High Court is not under challenge. We may refer to judgment of this Court in Municipal Corporation of Delhi Vs. Yashwant Singh Negi 2 SCR 550. In the above case a special leave petition was preferred against an order rejecting the review petition. A preliminary objection was raised that special leave petition is not maintainable since the main judgment is not challenged. In paragraph 1 of the judgment facts have been noticed which are to the following “1. This special leave petition has been preferred against the order dated 11.09.2009 passed by the High Court of Delhi in Review Petition No. 709 in LPA No. 1233 of 2006. Mr. Nidhesh Gupta learned senior counsel appearing for the Respondent raised a preliminary objection that the special leave petition is not maintainable since the main judgment rendered by the High Court on 5.11.2008 in LPA No. 1233 of 2006 was not challenged.” 12. This Court after considering the earlier judgment of this Court held that special leave petition is not maintainable. In paragraphs 3 and 4 following was laid down: “3. We find ourselves unable to agree with the views expressed by this Court in Eastern Coalfields Limited1 SCC 520 wherein this Court has taken the view that once the review petition is dismissed the doctrine of merger will have no application whatsoever. This Court in DSR Steel Limited v. State of Rajasthan6 SCC 782 also examined the various situations which might arise in relation to the orders passed in review petitions. Reference to paragraphs 25 25.1 25.2 and 25.3 is made which are extracted below for “25. Different situations may arise in relation to review petitions filed before a court 25.1. One of the situations could be where the review application is allowed the decree or order passed by the court or tribunal is vacated and the Limitedand applying the 3rd situation referred to therein in paragraph 25.3 we are inclined to dismiss this special leave petition. We find force in the contention made by the learned senior counsel appearing for the respondent that this SLP is not maintainable since the main order was not challenged but only the order passed in the review petition alone was challenged in this SLP. Hence the SLP is therefore not maintainable and the same is dismissed 13. We may also notice another elaborate judgment of this Court in Bussa Overseas and Properties Private Limited and Anr. Vs. Union of India and Anr. Ltd. v. Union of Indiawhereby the High Court while dealing with an application of review has declined to condone the delay of 129 days in preferring the application for review and also opined that the application for review was totally devoid of merit The expression of the said view led to dismissal of the application for 14. In the above case this Court noticed several earlier judgments and accepting the preliminary objection held that the special leave petition is not maintainable. Following was held in paragraphs 29 to “29. Needless to state that when the prayer for review is dismissed there can be no merger. If the order passed in review recalls the main order and a different order is passed definitely the main order does not exist. In that event there is no need to challenge the main order for it is the order in review that affects the aggrieved 30. The decisions pertaining to maintainability of special leave petition or for that matter appeal have to be seemly understood. Though in the Nale v. Shiolalsing Gannusing Rajput 1994) 2 SCC 753] the two Judge Bench referred to Order 47 Rule 7 of the Code of Civil Procedure that bars an appeal against the order of the court rejecting the review it is not to be understood that the Court has curtailed the plenary jurisdiction under Article 136 of the Constitution by taking recourse to the provisions in the Code of Civil Procedure. It has to be understood that the Court has evolved and formulated a principle that if the basic judgment is not assailed and the challenge is only to the order passed in review this Court is obliged not to entertain such special leave petition The said principle has gained the authoritative status and has been treated as a precedential principle for more than two decades and we are disposed to think that there is hardly any necessity not to be guided by the 31. In this context we may profitably reproduce a passage from State of A.P. v. A.P. Jaiswal1 SCC 748 wherein a three Judge Bench has observed thus:5 SCR 174] is not correct Consequently the appeal being not maintainable stands dismissed. There shall be no order as to costs.” 15. The rationale for not entertaining a special leave petition challenging the order of High Court rejecting the review petition when main order in the writ petition is not challenged can be easily comprehended. Against the main judgment the SLP having been dismissed earlier the same having become final between the parties cannot be allowed to be affected at the instance of petitioner. When the main judgment of the High Court cannot be effected in any manner no relief can be granted by this Court in the special leave petition filed against order rejecting review application to review the main judgment of the High Court. This Court does not entertain a special leave petition in which no relief can be granted. It is due to this reason that this Court in Bussa Overseas and Properties Private Limited and Anr supra) has held that principle of not entertaining special leave petition against an order rejecting the review petition when main judgment is not under challenge has become a precedential principle. We reiterate the above precedential principle in this 16. The special leave petition against the Division Bench judgment dated 11.03.2015 having been dismissed by this Court earlier on 21.08.2015 and the review petition filed by the petitioner to review the judgment having been dismissed by the impugned judgment we see no reason to entertain this special leave petition. The special leave petition is accordingly dismissed. ( ASHOK BHUSHAN R. SUBHASH REDDY M.R. SHAH New Delhi October 05 2020

Neither should be sacrificed nor inflated, as to prolong or trample a just and fair adjudication.: Supreme Court

A pragmatic and common-sense approach would invariably check any discord between the desire for expeditious disposal and adequacy of opportunity to establish one’s case as upheld by the Hon’ble Supreme Court through the learned bench led by Justice Sanjiv Khanna in the case of M/S. Narinder Singh and Sons v. Union of India (CIVIL APPEAL NO. 6734 OF 2021). The brief facts of the case are that M/s. Narinder Singh and Sons, vide letter dated 27th January 1993 was awarded tender by the respondent namely, Divisional Superintendent Engineer-II, Northern Railway, Punjab, for additional washing line to accommodate 26 coaches at Jammu Tawi Railway Station. Disputes arose when the respondent terminated the contract vide letter dated 03rd April 1996 due to stated non-performance and repeated lapses by the appellant. The appellant invoked the arbitration clause as per the contract agreement and in response, the General Manager, Northern Railways satisfied with the existence of the disputes, appointed an arbitrator. The appellant approached the District Court for termination of the mandate of the appointed arbitrator and substitution with an independent Arbitrator. The District Judge, Gurdaspur appointed Mr. Justice A.L. Bahri (Retd.) as the sole arbitrator. The respondent filed a Civil Revision Petition before the High Court against the order of the District Judge, Gurdaspur, which set aside the order of the appointment on the ground that the appointment of the arbitrator could only be done by the Chief Justice or any other Judge nominated by him. Finally, in the proceedings before the Chief Justice of the Punjab and Haryana High Court at Chandigarh, Mr. Justice A.L. Bahri (Retd.) was again appointed as the arbitrator. The learned arbitrator, thereupon, pronounced an ex parte award against the respondent on 27th November 2010. Resultantly, the respondent had filed objections under Section 34 of the Arbitration and Conciliation Act, 1996 before the Additional District Judge, Gurdaspur, which were dismissed. However, the respondent succeeded in its appeal before the Punjab and Haryana High Court at Chandigarh, which, vide impugned judgment dated 24th October 2017, accepted and set aside the award primarily on the ground that the arbitrator had violated principles of natural justice and had proceeded with great haste and hurry. On the question whether the Court could remand the disputes to the Arbitrator, the impugned judgment holds that the court remand was impermissible, but the parties were at liberty to approach the arbitrator for fresh adjudication or avail any other remedy permitted by law, while stating that the period spent in the arbitration proceedings and the resultant litigation should be excluded in terms of Section 43(4) of the Act. During the course of hearing before the Hon’ble Court, Mr. Ashish Verma, learned counsel for the appellant, and Mr. Sanjay Jain, learned Additional Solicitor General appearing for the respondent, have agreed that the Court may appoint an arbitrator for adjudication of the disputes, which prayer we accept. After the perusal of the facts and arguments by the respective parties, the Hon’ble Court held, “In the context of the present case, we agree with the High Court that there was unnecessary haste and hurry by the arbitrator, especially when the respondent had filed the affidavit by way of evidence on 21st October 2010. We hereby appoint Mr. Justice S.N. Aggarwal, a retired Judge of the Punjab and Haryana High Court, as the arbitrator to adjudicate and decide the said disputes. We hope and trust that the parties would cooperate with the learned arbitrator now appointed to ensure expeditious disposal. We also clarify that the question of award of interest, preference and pendente lite, is left open to be decided by the arbitrator, without being bound by the findings of the High Court in the impugned order.”

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6734 OF 2021 M S. NARINDER SINGH AND SONS UNION OF INDIA THROUGH DIVISIONAL SUPERINTENDENT ENGINEER II NORTHERN RAILWAY FEROZEPUR DIVISION FEROZEPUR JUDGMENT SANJIV KHANNA J Despite rounds of litigation the disputes that arose in 1996 will unfortunately continue even post this judgment M s. Narinder Singh and Sons the appellant before us vide letter dated 27th January 1993 was awarded tender by the respondent namely Divisional Superintendent Engineer II Northern Railway Ferozepur Division Ferozepur Punjab for additional washing line to accommodate 26 coaches at Jammu Tawi Railway Station Disputes arose when the respondent terminated the contract vide letter dated 03rd April 1996 due to stated non performance and Civil Appeal No. 67321 Digitally signed byJAGDISH KUMARDate: 2021.11.1817:05:47 ISTReason:Signature Not Verified repeated lapses by the appellant. The appellant on the other hand alleged breaches on the part of the respondent who it is stated had modified the original work and changed scope of the work several times. The appellant invoked the arbitration clause as per the contract agreement and in response the General Manager Northern Railways satisfied with the existence of the disputes appointed an arbitrator. The appellant approached the District Court for termination of the mandate of the appointed arbitrator and substitution with an independent Arbitrator. The District Judge Gurdaspur vide order dated 23rd December 2006 appointed Mr Justice A.L. Bahrias the sole arbitrator. The respondent filed a Civil Revision Petition before the High Court against the order of the District Judge Gurdaspur which set aside the order of the appointment on the ground that the appointment of the arbitrator could only be done by the Chief Justice or any other Judge nominated by him. Finally in the proceedings before the Chief Justice of the Punjab and Haryana High Court at Chandigarh by an order passed on 15th February 2010 Mr Justice A.L. Bahriwas again appointed as the arbitrator Civil Appeal No. 67321 The learned arbitrator thereupon pronounced an ex parte award against the respondent on 27th November 2010. Resultantly the respondent had filed objections under Section 34 of the Arbitration and Conciliation Act 1996 before the Additional District Judge Gurdaspur which were dismissed vide order dated 22nd March 2012. However the respondent succeeded in its appeal filed under Section 37 of the Act before the Punjab and Haryana High Court at Chandigarh which vide impugned judgment dated 24th October 2017 accepted FAO No 5227 of 2012 and set aside the award primarily on the ground that the arbitrator had violated principles of natural justice and had proceeded with great haste and hurry. It was also held that pre reference and pendente lite interest could not have been awarded in terms of clause 16(2) of the General Conditions of the Contract. On the question whether the Court could remand the disputes to the Arbitrator the impugned judgment holds that the court remand was impermissible but the parties were at liberty to approach the arbitrator for fresh adjudication or avail any other remedy permitted by law while stating that the period spent in the arbitration proceedings and the resultant litigation should be excluded in terms of Section 43(4) of the Act Civil Appeal No. 67321 Having heard counsel for the parties we find that the respondent was “unable to present his case” a valid ground and justification for setting aside an award under clauseto sub sectionto Section 34 of the Act. The award was also “in conflict with the public policy of India” under clauseto Section 34(2)(b) read with the applicable Explanation 1 to Section 34(2) of the Act. The appellant had filed the Statement of Claim on 3 rd May 2010 On 31st May 2010 the respondent sought adjournment for filing Statement of Defence which was granted by the arbitrator. On 10th July 2010 written statement along with the copies of documents were filed. The appellant thereupon filed rejoinder and affidavit of Paramdeep Singh in evidence on 5th August 2010. On the same day itself evidence of the appellant was closed while declining the request of the respondent to postpone cross examination. Order dated 5th August 2010 also records that the respondent had not filed its affidavit and had requested for a date. Latter request it is apparent was accepted by the arbitrator as the respondent was directed to file the affidavit and produce the witness for cross examination on the next date of hearing. On 28th September 2010 the respondent prayed for further time to file affidavits by way of evidence which request for adjournment was opposed. This order records that the respondent Civil Appeal No. 67321 had not paid the arbitration fee and expenses in spite of the earlier orders. The learned arbitrator adjourned the matter to 21st October 2010 subject to the payment of costs by the respondent to the appellant of Rs. 10 550 i.e. cost of proceedings for one day. On 21st October 2010 the respondent filed affidavit of Mr. Abhay Kumar Senior Divisional Engineer II Northern Railway Ferozepur as well as an application for recall of costs. This application for waiver of costs was opposed and rejected. Since the cost was not paid the affidavit by way of evidence it was directed would not be taken on record. This order of 21st October 2010 also records that while the respondent had not paid the arbitration fee and expenses the appellant had already paid Rs. 50 000 towards arbitration fee and expenses. The arbitrator adjourned the matter to 9th November 2010 for final arguments and an ex parte award dated 27th November 2010 was passed awarding an amount of Rs. 20 25 255 along with interest @ 12% per annum from 03 rd April 1996 till payment was made. For this purpose the arbitrator had relied upon Section 31(7) of the Act Section 19 of the Act states that while the arbitral tribunal is not bound by the Code of Civil Procedure 1908 or the Indian Evidence Act 1872 in the absence of any agreement between the parties as to the procedure to be followed the arbitral tribunal may Civil Appeal No. 67321 conduct the proceedings in the manner it considers appropriate Section 18 mandates that both parties shall be treated with equality and each party shall be given a full opportunity to present his case. Reference can also be made to Sections 24 and 25 and newly enacted Section 29A of the Act which though not applicable to this case emphasise on quick and prompt adjudications. Idioms carping ‘delay’ and ‘hurry’ in adjudication highlight the importance of both speedy disposal and reasonable opportunity as both are essential for an even handed and correct decision. Neither should be sacrificed nor inflated as to prolong or trample a just and fair adjudication. A pragmatic and common sense approach would invariably check any discord between the desire for expeditious disposal and adequacy of opportunity to establish one’s case. In the context of the present case we agree with the High Court that there was unnecessary haste and hurry by the arbitrator especially when the respondent had filed the affidavit by way of evidence on 21st October 2010. Earlier the respondent had filed written statement shortly after the appellant had filed the claim statement. The respondent was also deprived of reasonable and fair opportunity to cross examine Paramdeep Singhto Section 34(2)(a) as well as clauseto Section 34(2)(b) of the Act. During the course of hearing before us Mr. Ashish Verma learned counsel for the appellant and Mr. Sanjay Jain learned Additional Solicitor General appearing for the respondent have agreed that this Court may appoint an arbitrator for adjudication of the disputes which prayer we accept 9. We hereby appoint Mr. Justice S.N. Aggarwal a retired Judge of the Punjab and Haryana High Court #1458 Sector 40 B Chandigarh as the arbitrator to adjudicate and decide the said disputes. He would be paid arbitration fee and expenses in terms of the schedule to the Act Civil Appeal No. 67321 The appellant and the respondent would equally bear the said fee and expenses. The respondent would pay 50% of the arbitration fee and expenses to the learned arbitrator within one month from the date of the first hearing. The appellant would pay its share of 50% fee on the date when the final arguments commence. We have made the aforesaid direction in view of the conduct of the respondent in not paying their share of fee and expenses to the earlier arbitrator. We hope and trust that the parties would cooperate with the learned arbitrator now appointed to ensure expeditious disposal. The arbitration proceedings shall continue from the stage permitting the respondent to cross examine Paramdeep Singh and if not available the parties shall reconstruct the same by filing self certified copies of pleadings and documents as filed by them in the arbitration proceedings. 10. We also clarify that the question of award of interest pre reference and pendente lite is left open to be decided by the arbitrator without being bound by the findings of the High Court in the impugned order. Civil Appeal No. 67321 11. The civil appeal is disposed of in the aforesaid terms with no order as to costs NEW DELHI NOVEMBER 18 2021 Civil Appeal No. 67321 Page

Standard of physical fitness for the Armed Forces and the Police Forces is more stringent than for the civilian employment: High Court of Delhi

It is the doctors of the Forces who are well aware of the demands of duties and the physical standards required to discharge duty in armed or police forces and same was upheld by HIGH COURT of DELHI through the learned bench led by HON’BLE MR. JUSTICE MANMOHAN in the case of AMARJEET SINGH vs. UNION OF INDIA & ORS. (W.P.(C) 7000/2021) on 25.02.2022. Brief facts of the case are that the petitioner applied for the post of AA SSR in the Indian Navy in December, 2019. He cleared the Phase-I (Written Test) and Phase-II (Physical and Efficiency Test) examinations and was thereafter directed to report to the Recruiting Office, INS Chilika for the conduct of his Primary Medical Examination at the PME stage, the petitioner was declared medically unfit for appointment on the grounds of ‘glucosuria‟, ‘Hypo pigmented Patch Upper back’, ‘Droping Shoulder and ‘B/L Impacted Ear Wax’. The petitioner preferred an appeal and got second medical test and got unfit on account of ‘Right Drooping Shoulder/Wining of Scapula Right’ and ‘Hyper Hydrosis’. Learned counsel for petitioner stats that thereafter got himself examined at the V.M.M.C New Delhi, which by reports dated 02.03.2021 and 06.03.2021, opined that the petitioner was not suffering from ‘Hyper Hydrosis’ and Drooping Shoulder’. The petitioner thereafter sent a legal notice dated 10.03.2021 to the respondents, however, the respondents, by their reply dated 29.04.2021 refused to entertain/review the above said medical examination reports. The petitioner thereafter filed the present petition. Surg Commander Kaushik Roy has explained that during the AMB, the petitioner was first examined by a Graded Specialist Orthopaedist for Drooping Shoulder and petitioner appeared to have Wining of Right Scapula which is reasons for the drooping of shoulders. He submits that both the above ailments are grounds for disqualification of a candidate in terms of ‘Part-II Service Personnel NO(Spl) 01/2008 Medical Standards – Officers and Sailors’. The Court held that the standard of physical fitness for the Armed Forces and the Police Forces is more stringent than for the civilian employment. It was held that it is the doctors of the Forces who are well aware of the demands of duties and the physical standards required to discharge the same as during the AMB the petitioner was examined by graded professionals, Court finds no merit in the present petition and the same is dismissed.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 25.02.2022 W.P.(C) 7000 2021 & CM 22095 2021 AMARJEET SINGH Through: Ms.Ria Gandhi Adv ..... Petitioner Mr.Ajit Kakkar Adv. UNION OF INDIA & ORS. ..... Respondents Through: Mr.Farman Ali with Mr.Athar Raza Farooquei Advs. for UOI. Mr.Naresh Kaushik Adv for R 3 HON BLE MR. JUSTICE MANMOHAN HON BLE MR. JUSTICE NAVIN CHAWLA NAVIN CHAWLA J.The present petition has been filed by the petitioner challenging the medical unfitness certificates dated 26.01.2021 and 16.02.2021. The petitioner further prays for a direction to the respondents to conduct re medical examination of the petitioner or in the alternative grant appointment to the petitioner to the post of „Artificer Apprentice Sub marine Specialization‟ in the Indian Navy. WP(C) No.7000 2021 It is the case of the petitioner that the petitioner applied for the post of AA SSR in the Indian Navy in December 2019 pursuant to the advertisement published by the Indian Navy. The petitioner cleared the Phase I and Phase II Physical and Efficiency Test) examinations and was thereafter directed to report to the Recruiting Office INS Chilika for the conduct of his Primary Medical ExaminationUpper back’ ‘Drooping Shoulderconducted at INHS Kalyani again declared the petitioner medically unfit on account of Right Drooping Shoulder Wining of Scapula Right and Hyper The petitioner thereafter got himself examined at the V.M.M.C Safdarjung Hospital New Delhi which by reports dated 02.03.2021 and 06.03.2021 opined that the petitioner was not suffering from Hyper Hydrosis and that there was no evidence of petitioner suffering from „Drooping Shoulder’. The petitioner thereafter sent a legal notice dated 10.03.2021 to the respondents however the respondents by their reply dated 29.04.2021 refused to entertain review the above said medical examination reports. The petitioner thereafter filed the present WP(C) No.7000 2021 The learned counsel for the petitioner submits that in view of the certificate issued by the V.M.M.C & Safdarjung Hospital New Delhi the petitioner is entitled to seek re medical examination from an independent board of doctors to rule out any mistake being committed by the medical board of doctors of the respondents. This Court by its order dated 17.08.2021 had directed the respondents to place on record the impugned medical certificates. The said order has been complied with by the respondents. 10. Today during the course of hearing Surg Commander Kaushik Roy was also present to explain the results of the medical 11. Surg Commander Kaushik Roy has explained that during the AMB the petitioner was first examined by a Graded Specialist Orthopaedist for „Drooping Shoulder’. He reported that the petitioner appeared to have „Wining of Right Scapula’ and referred the petitioner for opinion from a Neurologist for verifying the same. The Neurologist on examination confirmed that the petitioner was suffering from „Wining of Right Scapula’ and was therefore unfit for appointment. He submits that the „Wining of Scapula’ is one of the reasons for the drooping of shoulders. 12. As far as the ailment of „Hyper Hydrosis’ is concerned he the petitioner was examined by a specialist WP(C) No.7000 2021 Dermatologist who agreed with the opinion of the PME and reported that the petitioner suffered from „Hyper Hydrosis’. 13. He submits that both the above ailments are grounds for disqualification of a candidate in terms of ‘Part II Service Personnel NO(Spl) 01 2008 Medical Standards Officers and Sailors’ hereinafter referred to as „the Medical Standards‟) and especially Clause 4(d) and Clause 10(c) thereof. He submits that both these ailments would cause impairment and hindrance in the discharge of service by the candidate and therefore the candidate suffering from the same cannot be appointed. 14. We have considered the submissions made by the learned counsel for the petitioner and the learned Surg Commander Kaushik Roy. 15. From the documents it is apparent that at the AMB stage for the ailment of „Drooping Shoulder’ the petitioner was examined by a Specialist Orthopedist as also the Neurologist. For „Hyper Hydrosis’ the petitioner was examined by a Specialist Dermatologist. There is no inconsistency in the finding of the PME Board and the AMB on these two ailments. They are also mentioned as the ground for disqualification in the Medical Standards referred hereinabove. 16. As far as the reliance on the report from the V.M.M.C & Safdarjung Hospital is concerned this Court in its judgment dated WP(C) No.7000 2021 21.12.2020 in Km. Priyanka vs. Union of India & Ors. W.P.(C) 10783 of 2020 has held that the standard of physical fitness for the Armed Forces and the Police Forces is more stringent than for the civilian employment. It was held that it is the doctors of the Forces who are well aware of the demands of duties and the physical standards required to discharge the same. It was further held as under: “8. We have on several occasions observed that the standard of physical fitness for the Armed Forces and the Police Forces is more stringent than for civilian employment. We have in Priti Yadav Vs. Union of India 2020 SCC OnLine Del 951 Jonu Tiwari Vs. Union of India 2020 SCC OnLine Del 855 Nishant Kumar Vs. Union of India 2020 SCC OnLine Del 808 and Sharvan Kumar Rai Vs. Union of India 2020 SCC OnLine Del 924 held that once no mala fides are attributed and the doctors of the Forces who are well aware of the demands of duties of the Forces in the terrain in which the recruited personnel are required to work have formed an opinion that a candidate is not medically fit for recruitment opinion of private or other government doctors to the contrary cannot be accepted recruited personnel are required to work for the Forces and not for the private doctors or the and which medical professionals are unaware of the demands of the duties in the Forces.” inasmuch as 17. In view of the above we find no merit in the present petition and the same is dismissed. There shall be no order as to cost. FEBRUARY 25 2022 Sd AB NAVIN CHAWLA J MANMOHAN J WP(C) No.7000 2021

Speed should not be the only criteria for deciding rashness and negligence on the part of the driver: High Court of Tripura

Mere driving of a vehicle at a high speed or slow speed does not lead to an inference that negligent or rash driving had caused the accident resulting in injuries to the complainant. In fact, speed is no criteria to establish the fact of rash and negligent driving of a vehicle. This auspicious judgment was passed by The High Court in Tripura in the case of Sri Biswajit Ghosh vs The State of Tripura [Crl. Rev. P No.21/2019] by Honourable Justice S. G. Chattopadhyay The facts of the case are a face-to-face collision took place between two motorbikes according to the informant, the motorbike drove by Amar Deb collided with the motorbike driven by Biswanit Ghosh which was coming from the opposite direction. As a result of such a collision between the motorbikes, drivers of both the motorbikes got seriously injured. It was alleged by the informant that the accident occurred as a result of the careless driving of the said motorbikes. The Learned Counsel for the petitioner submits that the case was registered against both the drivers of the motorbikes involved in the accident. Since one of the accused has died, a charge sheet has been filed against the other accused. if the evidence is to believe, the accused cannot be held guilty because, they have given no evidence in support of rash and negligent driving and the materials available on record do not justify the convict and sentence of the accused of rash and negligent driving. Learned counsel on the other hand contends that prosecution evidence with regard to the charge of rash and negligent driving against the accused is so consistent that the concurrent findings of the courts below do not call for any interference in revision. Learned counsel, therefore, urges for dismissal of the instant petition. The court relied on the Apex Court in the case of State of Karnataka Vs Satish, it was held that “Merely because the truck was being driven at a “high speed” does not bespeak of either “negligence” or “rashness” by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by “high speed”. “High speed” is a relative term. It was for the prosecution to bring on record material to establish as to what is meant by “high speed” in the facts and circumstances of the case.”

Page HIGH COURT OF TRIPURA Crl. Rev. P No.21 2019 Sri Biswajit Ghosh Son of Late Ramanandra Ghosh Resident of Lambucharra P.S. Kamalpur District Dhalai Tripura. The State of Tripura Represented by Public Prosecutor High Court of Tripura Agartala. Versus … Petitioner(s). … Respondent(s). THE HON’BLE MR. JUSTICE S. G. CHATTOPADHYAY : Mr. Samar Das Advocate. For Petitioner(s) For Respondent(s) : Mr. S. Ghosh Addl. Public Prosecutor. Date of hearing Date of Judgment & Order : 7TH April 2021. Whether fit for reporting : NO. : 10th February 2021. JUDGMENT AND ORDER 1] Petitioner has filed this criminal revision petition challenging the judgment dated 20.12.2018 delivered in Criminal Appeal No.3 of 2018 by the Additional Sessions Judge Dhalai Judicial District Kamalpur affirming the conviction and sentence of the petitioner awarded by the Judicial Magistrate First Class Kamalpur by judgment and order dated 09.01.2018 in PRC 30 2016 whereby the trial Court imposed sentence on the petitioner as under: Crl. Rev. P No.21 2019. Page 279 IPC 338 IPC 304A IPC R.I for 2 two) months R.I for 2 two) months Rs.1000 Rs.1000 S.I for 10(ten) days. DEFAULT SENTENCE Rs.2000 S.I for 15days. 184 M.V. Act Rs.1000 S.I for 10(ten) days. It was ordered that the sentences would run concurrently. Judgment of the trial Court was affirmed in appeal by the impugned judgment. Aggrieved petitioner has challenged the judgment of the appellate Court by means of filing this criminal revision petition. Genesis of the prosecution case is rooted in the FIR which was lodged by Sri Rakhal Ch. Das at around 6.55 pm on 04.01.2016 at Kamalpur police station alleging inter alia that at about 3.25 pm on the day a face to face collision took place between two motor bikes on Kamalpur Ambasa road near the office of Kalachari Gram Panchayat. According to the informant the motor bike carrying registration No.TR 04 7499 driven by Amar Deb on its way from Manik Bhander to Kamalpur collided with the motor bike carrying registration No.TR 04A 6726 driven by Biswanit Ghosh which was coming from the opposite direction. As a result of such collision between the motor bikes drivers of both the motor bikes got seriously injured. They were immediately taken to Kamalpur district hospital by the local people. It was alleged by the informant that the accident occurred as a result of careless driving of the said motor bikes. Crl. Rev. P No.21 2019. Page Based on his FIR Kamalpur PS Case No.2015 KMP001 dated 04.01.2016 under Sections 279 and 338 IPC and Section 184 Motor Vehicles Act 1988 was registered against the drivers of the said motor bikes and the investigation of the case was taken up by police. On 5.1.2016 injured driver Amal Ch. Deb succumbed to his injuries in AGMC and G.B.P Hospital at Agartala. With the approval of the Court vide order dated 08.01.2016 of the Sub Divisional Judicial Magistrate Kamalpur the Investigating Officer added Section 304A IPC to the case for the purpose of investigation. During investigation the I.O visited the crime scene and he had drawn up a sketch map of the crime scene indicating the material locations therein. Thereafter the material witnesses acquainted with the facts of the case were examined by him and their statements were recorded under Section 161 Cr. P.C. Injury reports of the victims and post mortem examination report of the deceased driver were collected and on the basis of such investigation Charge Sheet No. 22 of 2016 dated 5.4.2016 was submitted against accused Biswahit Ghosh for having committed offence punishable under Sections 279 338 304 Part II IPC and Sections183 184 and 190 of the Motor Vehicles Act 1988. The Sub Divisional Judicial Magistrate Kamalpur having received the charge sheet made over the case to the Court of Judicial of the First Class at Kamalpur vide his order dated 19.04.2016. Crl. Rev. P No.21 2019. Page The trial Court viewed that the basic ingredients of Section 304 Part II IPC were not satisfied in the case and therefore vide his order dated 04.05.2016 the learned Judicial Magistrate First Class took cognizance of offence punishable under Sections 279 338 and 304A IPC and Sections 183 184 and 190(2) of the Motor Vehicles Act 1988. At the commencement of trial the substance of accusation in terms of Section 251 Cr.P.C was stated to the accused petitioner which is reproduced hereunder: “That on 04.01.2016 at about 1525 hours on Kamalpur Ambassa public way at Kalachari under Kamalpur P.S you being the rider of motor bike bearing registration No. TR 04 A 6726 drove the motor bike in a manner so rash and negligent manner as to endanger human life or to be likely to cause hurt or injury to any person and you thereby caused grievous hurt to Amar Chandra Deb and hurt to Sri Madhusudhan Chakraborty and consequently on 05.01.16 Amar Chandra Deb succumbed to his injuries caused by you not amounting to culpable homicide and you thereby committed offences punishable under section 279 338 337 304A of the Indian Penal Code 1860 and within my cognizance. Secondly on the same date and time and at the same place you are the rider of the motor bike bearing registration No. GR 04 A 6726 drove the same at a speed or in a manner which is dangerous to the public having regard to all the circumstances of the case including the nature condition and use of the place where the vehicle was being driven and the amount of traffic which actually was at the time or which might reasonably be expected to be in the place and you thereby committed the offence of driving dangerously punishable under section 184 of the Motor vehicles Act 1988 and within my cognizance. Thirdly on the same date and time and at the same place you being the rider of the motor Crl. Rev. P No.21 2019. Page bike bearing registration No. TR 04 A 6726 drove the same in contravention of the speed limits referred to in section 112 of the Motor Vehicles Act 1988 and you thereby committed an offence punishable under section 183 of M.V. Act 1988 and within my cognizance. Fourthly on the same date and time and at the same place you being the rider of the motor bike bearing registration No. TR 04 A 6726 drove the same in violation of the standard prescribed in relation to road safety control of noise and air pollution and you thereby committed an offence punishable under section 190(2) of M. V. Act 1988 and within my cognizance.” Accused pleaded not guilty and claimed a trial. During trial as many as 17 prosecution witnesses including the informant and Investigating Officer were examined and 17 documents were introduced on behalf of the prosecution in order to prove the case against the accused. Thereafter the incriminating materials appearing in the prosecution evidence were explained to the accused during his examination under Section 313 Cr. P.C held on 09.11.2017. Accused pleaded innocence and claimed that the charges were foisted on him. He declined to adduce any witness on his Heard Mr. Samar Roy learned advocate appearing for the petitioner as well as Mr. S. Ghosh learned Addl. Public Prosecutor representing the State respondent. Crl. Rev. P No.21 2019. defence. Page 10] It would be appropriate to have a glance at the evidence recorded during trial before adverting to the arguments advanced by learned counsel of the parties. 11] As noted two motor bikes were involved in the accident and FIR was lodged against both of the drivers of those vehicles. One of the driver namely Amar Ch. Deb died of his injuries in hospital day after the occurrence. Other accused namely Biswajit Ghosh is facing the trial. Among the witness examined by the prosecution PW 1 Sri Rakhal Chandra Das came to the spot following a robust sound from his nearby office after the collision took place. He rushed to the place of occurrence and saw the two motor bikes lying on the road. Among the two accused drivers condition of Amar Deb was serious. The PW stated that he came to know the name of the injured drivers from the local people. Immediately he along with others had taken injured Amar Ch. Deb to hospital in an auto rickshaw. When police visited the place of occurrence he wrote the FIR and submitted it to police. On his identification FIR was marked as Exbt.1. In his cross examination he categorically stated that he had no idea as to how the accident took place and who among the two accused drivers was at fault because he did not see the accident taking place. Crl. Rev. P No.21 2019. Page 12] Similarly PW 2 Sri Dilip Chanda did not also see the accident taking place. He was feeding his cow on road in front of his house when he heard the sound of collision between two motor bikes. Immediately he rushed to the place of occurrence and saw the bikes lying on road and one of the injured drivers was also lying on road. Immediately the injured was taken to hospital. The PW was declared hostile at the instance of prosecution and he was cross examined by the prosecution lawyer. Nothing could be extracted from him during such cross examination by the prosecution. In his cross examination by the accused he categorically stated that he did not see the accident and therefore he could not say as to who was responsible for the accident. 13] PW 3 Sri Babul Das also stated that he did not have any idea about the accident. He did not give any incriminating evidence against any of the accused. 14] PW 4 Sri Madhusudhan Chakraborty is an eye witness who was a pillion rider on the motor bike of deceased accused Amar Deb. The PW stated that he was returning to Kamalpur from Manik Bhander on the motor bike of deceased accused Amar Deb. When they reached Kalachari accused Biswajit Ghosh who was riding motor bike carrying registration No.TR 04 A 6726 dashed against their motor bike from the opposite direction. According to the PW the accident occurred because accused Biswajit Ghosh was driving his motor bike in excessive speed. As a result of the accident the PW slipped from the motor bike and sustained fatal Crl. Rev. P No.21 2019. Amar Ch. Deb succumbed to his injuries on the following day. Page injuries. Amar Ch. Deb on whose bike he was a pillion rider also received serious injury. Both of the accused drivers were taken to hospital and ultimately both of them were referred to GBP hospital where accused 15] During his cross examination many suggestions were given to the witness on behalf of the accused. He denied all those suggestions. The PW denied that accused Biswajit Ghosh did not drive his vehicle in high speed. He also denied the suggestion that he gave false statement before the Court during trial. 16] PW.5 Sri Uttam Namasudra stated that at the material time he was a helper in Kalachari Panchayet Office. From there he saw accused Biswahit Ghosh driving his vehicle at high speed. He explained to the Court that by high speed he meant that the motor bike was being driven in a zig zag manner. According to the witness the motor bikes had a face to face collision as a result of which deceased Amar Ch. Deb received serious injury who was taken to hospital. In his cross examination he stated that his office was situated within a distance of 50 60 cubits away from the place of occurrence. The PW denied that he did not give true statement before the Court. He also denied that accused Biswajit Ghosh was not responsible for the accident. 17] PW 6 Smt. Papi Deb wife of the deceased met her injured husband Amar Ch. Deb in hospital immediately after the occurrence. She Crl. Rev. P No.21 2019. Page stated that she also met Madhusudhan Chakraborty pillion rider and Sri Sudam Hrshidas in the hospital. From them she came to know that as a result of careless driving of the motor bike by accused Biswajit Ghosh the accident took place. In her cross examination PW stated that Madhusudhan Chakraborty was a colleague of her husband who was returning Kamalpur on the motor bike of her husband at the material time. She denied that the accident did not occur as a result of rash driving of Biswajit Ghosh. 18] PW 7 Sri Arjun Ch. Deb is the younger brother of deceased Amar Ch. Deb. This PW did not also see the accident. When he went to see his injured brother at Kamalpur hospital he met Madhusudhan Chakraborty who told him that accused Biswajit Ghosh was responsible for the accident because he drove his motor bike in a very high speed and dashed against the motor bike of his elder brother. 19] Similar evidence was given by PW 8 Sri Litan Deb. He is not an eye witness to the occurrence. He came to know from the local people that the accident occurred due to rash driving of the motor bike by accused Biswajit Ghosh. Later he had gone to hospital to meet his son in law Madhusudhan Chakraborty who was travelling on the bike of deceased accused Amar Ch. Deb. 20] PW 9 Sri Bikash Chandra Das simply stated that he saw a crowed at the place of occurrence and came to know that a collision took Crl. Rev. P No.21 2019. Page 1 place between two motor bikes. He was declared hostile at the instance of prosecution. Nothing could be extracted from him in favour of the prosecution through cross examination of the witness by the prosecution lawyer. 21] Similarly PW 10 Sri Pallab Das was also declared hostile to the prosecution and the PW was also cross examined by the prosecution lawyer. He did not give any incriminating evidence against the accused during his cross examination by the prosecution lawyer. 22] PW 11 Sri Sudam Hrishidas stated that he saw deceased Amar Ch. Deb driving his motor bike in a very low speed along the left side of the road. Madhusudhan Chakraborty(PW 4) was on his bike. Suddenly the bike of accused Biswajit Ghosh came from the opposite direction in a high Speed and dashed against the motor bike of deceased Amar Ch. Deb. The collision between two motor bikes generated a robust sound. Both of the accused drivers received fatal injuries from the accident and both of them were taken to hospital. In his cross examination the PW denied the suggestion of the accused that the petitioner did not drive his vehicle in high speed at the time of occurrence. 23] PW 12 Dr. Sudip Kumar Acharjee was the medical officer at District Hospital Kamalpur who attended the injured drivers and injured Madhusudhan Chakraborty at the hospital immediately after the Crl. Rev. P No.21 2019. Page 1 occurrence and found injuries arising out of road traffic accident in the body of all those persons. The patients were referred to AGMC and GBP Hospital Agartala. 24] PW 13 Sri Chakrapani Das was a motor vehicles inspector who stated that on 4.3.2016 i.e. two months after the occurrence he examined the offending motor bikes at Kamalpur P.S. Complex. During such examination he found damages on the front portion of both the vehicles. According to him there was no mechanical disorder in either of the vehicles at the time of occurrence. 25] Pw 14 S.I Sri Swapan Barman investigated the case. He stated that during his investigation he examined the material witnesses of this case. He also seized the offending motor bikes and got those bikes examined by the Inspector of Motor Vehicles collected the injury reports of those who received injury in the accident including post mortem report of deceased Amar Ch. Deb and submitted charge sheet against accused Biswahit Ghosh for causing the death of deceased Amar Ch. Deb by negligent driving. 26] PW 15 Bijoy Kumar Deb the cousin brother of Amar Chandra Deb stated that he put a signature on the seizure list by which police seized the documents of the vehicle of his deceased brother. 27] PW 16 Sri Tapan Das visited the place of occurrence after the occurrence. He saw the offending motor bikes lying on road and made Crl. Rev. P No.21 2019. Page 1 arrangement for shifting the injured to hospital. The PW could not say who was responsible for the accident. 28] PW 17 Dr. Pradipta Narayan Chakraborty held the post mortem examination of deceased Amar Ch. Deb at AGMC and GBP Hospital at Agartala on 05.01.2016. According to the PW Amar Ch. Deb died due to head injury resulting from the impact of hard and blunt force. The PW stated that all the injuries were ante mortem in nature and fresh in duration. 29] It would appear from the evidence discussed above that other than PW 4 Madhusudhan Chakraborty PW 5 Sri Uttam Namasudra and PW 11 Sri Sudam Hrishidas there is no eye witness to the occurrence. Among these three witnesses PW 4 Madhusudhan Chakraborty was tyravelling on the bike of deceased Amar Ch. Deb at the time of occurrence. He stated that accused Biswajit Ghosh was responsible for the accident because he drove his vehicle in excessive speed. Uttam Namasudra stated that he was in Kalachari Panchayet office at the time of occurrence at a distance of 60 cubits from the place of occurrence and from there he had seen the accident. According to him the accident occurred as a result of rash driving of accused Biswajit Ghosh. PW 11 who is stated to be another eye witness deposed that at the material time he was returning Kamalpur from Manik Bhander on his bye cycle. At Kalachari he saw accused Biswajit Ghosh riding his motor bike at high speed. According to him deceased Amar Ch. Deb was driving Crl. Rev. P No.21 2019. Page 1 his motor bike in a low speed. It was stated by the PW that as a result of rash driving of accused Biswajit Ghosh a collision between the two motor bikes took place causing injuries to both the drivers and pillion rider Madhusudhan Chakraborty(PW 4) who was travelling on the bike of deceased accused Amar Ch. Deb. 30] Mr. Samar Das learned counsel appearing for the petitioner submits that on the basis of information lodged by Rakhal Ch. Dasthe case was registered against both the drivers of the motor bikes involved in the accident. Since one of the accused has died charge sheet has been filed against the other accused namely Biswajit Ghosh. Accordingly to learned counsel for argument’s sake even if the evidence of PW 4 PW 5 and PW 11 are believed accused cannot be held guilty because they have given no evidence in support of rash and negligent driving. Counsel submits that materials available on record do not justify convict and sentence of the accused for rash and negligent driving. 31] Mr. S. Ghosh learned Additional Public Prosecutor on the other hand contends that prosecution evidence with regard to the charge of rash and negligent driving against the accused is so consistent that the concurrent findings of the courts below do not call for any interference in revision. Learned counsel therefore urges for dismissal of the instant petition. Crl. Rev. P No.21 2019. Page 1 32] It would appear from the evidence of PW 4 PW 5 and PW 11 who allegedly witnessed the accident that each of these witnesses stated that the accident occurred because accused Biswahit Ghosh was driving his motor bike at a high speed. In the case of Mrs. Shakila Khader and Ors Vrs. Nausheer Cama and Others: reported in4 SCC 122 the Apex Court observed that speed is not the only criteria for deciding rashness and negligence on the part of the driver. Similar observation was made by the Apex Court in case of State of Karnataka Vrs. Satish reported in8 SCC 493 which is as under: “4. Merely because the truck was being driven at a "high speed" does not bespeak of either "negligence" or rashness" by itself. None of the witnesses examined by the prosecution could give any indication even approximately as to what they meant by "high speed". High speed" is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "high speed" in the facts and circumstances of the case. In a criminal trial the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record no presumption of rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur". There is evidence to show that immediately before the truck turned turtle there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the Inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case.” 33] This High Court also expounded in the case of Suman Saha Vrs. State of Tripura reported in 1 TLR 191 that only high speed cannot be the conclusive evidence of rash and negligent driving. Crl. Rev. P No.21 2019. Page 1 34] In the present case the Investigating Officer did not make any investigation to ascertain about the width of the road its position density of the traffic at the material place and the exact location of the offending vehicle and those of the witnesses and the deceased at the time of accident to present a complete picture before the Court to know actually how the accident took place and who was responsible. In absence of such evidence it would be unsafe to hold the petitioner guilty merely on the evidence that the offending vehicle was at a high speed and a person lost his life in the accident. 35] In view of what is discussed above this Court is of the view that prosecution has failed to establish the charges of rash and negligent driving against the petitioner by adducing sufficient convincing and reliable evidence. Resultantly the revision petition stands allowed and accused is acquitted of the charges brought against him. His bail bond stands discharged. The criminal revision petition is disposed of. Pending application(s) if any shall also stand disposed of. Send down the LCR. Dipankar Crl. Rev. P No.21 2019.

Petitioner released on bail upon furnishing bail bonds after being arrested under sections 147,149, 323,325,307,504, 506,379IPC: High court of Patna

The petitioner was arrested under section 147 Indian Penal Code, “Punishment for rioting”, section 149, “ Every member of unlawful assembly guilty of offense commit­ted in the prosecution of a common object”, Section 323, “voluntarily causing hurt”, section 325, “Punishment for voluntarily causing grievous hurt”, section 307, “Attempt to murder”, section 504, “Intentional insult with intent to provoke breach of the peace”, section 506 “Punishment for criminal intimidation” and 379IPC “Punishment for theft.” This was in connection with Mahanar PS Case No. 217 of 2018 dated 26.08.2018. The petitioner along with others was accused of injuring the hand of the informant with an iron rod. This judgment was given in the high court of Judicature at Patna on the 20th of July 201 by Honorable Mr. Justice Ahsanuddin Amanullah in the case of Pulish Rai v/s the state of Bihar criminal miscellaneous No.35485 of 2020, Mr. Mukesh Singh represented as the advocate for the petitioner and Ms. Pushpa Sinha represented the state of Bihar as the additional public prosecutor, the proceedings of the court were held through video conference.   According to the counsel for the petitioner, after investigation it was submitted that the allegation for assault on the hand of the informant was found to be a fracture but the informant here are the aggressors for this incident the counsel submitted that the allegation against the petitioner that he repeatedly gave blows on the hand with an iron rod was completely false and it was not done with the intention to cause any grievous hurt, this accident took play because of a scuffle and in the heat of the moment both the parties sustained injuries. The counsel submitted that the petitioner had no criminal antecedent, the counsel held that the parties are agnates and there has been a land dispute, the petitioner also sustained a grievous injury while as the informant has only one injury of a fracture which are simple in nature. The additional public prosecutor held that the witnesses have supported the prosecution case and it was not controverted that the place of the incident took place in the house of the petitioner. The high court decided that the petitioner will be released on bail upon furnishing bail bonds of Rs. 25,000 with two sureties of the like amount each to the satisfaction of the learned chief justice magistrate 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 the police/prosecution.”

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No.354820 Arising Out of PS. Case No. 217 Year 2018 Thana MAHNAR District Vaishali Pulish Rai age 46 yearsson of late Saryug Rai resident of village Allipur Hutta P.S. Mahanar Distt. Vaishali ... Petitioner s The State of Bihar For the Petitioner s For the State Mr. Mukesh Kumar Singh Advocate Ms. Pushpa Sinha APP CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ... Opposite Party s Date : 20 07 2021 The matter has been heard via video conferencing 2. Heard Mr. Mukesh Kumar Singh learned counsel for the petitioner and Ms. Pushpa Sinha learned Additional Public Prosecutorfor the 3. The petitioner apprehends arrest in connection with Mahanar PS Case No. 2118 dated 26.08.2018 instituted under Sections 147 149 323 325 307 504 506 and 379 of the Indian Penal Code. 4. The petitioner along with others is accused of assault on the informant side and specifically against the petitioner of inflicting iron rod blow on the hand of the Patna High Court CR. MISC. No.354820 dt.20 07 2021 5. Learned counsel for the petitioner submitted that though as per the allegation the assault was on the hand and a fracture has also been found in the X ray but the informant side were the aggressors as has come during investigation. Learned counsel submitted that it is not alleged that the petitioner gave repeated blows which shows that there was no intention to cause any serious harm and because of there being scuffle in the heat of the moment injuries have been sustained by both the sides Learned counsel submitted that the petitioner’s side had also lodged a counter case for the same incident. It was submitted that the petitioner has no criminal antecedent. Learned counsel submitted that he may be given some time to take instructions as to whether the matter has been settled compromised between the parties. It was submitted that from the FIR itself it is clear that it was the informant’s side which had come to confront the petitioner’s side as to why they had lodged a complaint with the Superintendent of Police against them. Learned counsel submitted that the present case is counter blast to Mahnar PS Case No. 2218 in which the fardbeyan of the petitioner was recorded in the Sadar Hospital Hajipur on 26.08.2018 at 10.00 AM and thereafter this case has been lodged on 26.08.2018 by the informant. Learned counsel submitted that Patna High Court CR. MISC. No.354820 dt.20 07 2021 the present case has been instituted on the basis of a written complaint and the incident alleged is of a day prior i.e. 25.08.2018 and for the delay there is no explanation. Learned counsel submitted that the parties are agnates and there is land dispute and on the petitioner’s side injury is grievous whereas on the informant’s side except for one injury i.e. fracture of the hand other injuries are simple in nature and most importantly the petitioner himself being injured if at all had committed some overt act it was to protect himself which would be clear from Mahnar PS Case No. 223 of 2018. Learned counsel submitted that the petitioner has no criminal antecedent 6. At this juncture when the Court asked learned counsel for the petitioner as to what were his instructions as he had taken time to know whether the matter has been settled compromised between the parties he submitted that despite the best effort of the petitioner as a Title Suit is pending between the parties the informant’s side is not ready for any 7. Learned APP from the case diary submitted that witnesses have supported the prosecution case. However it was not controverted that the place of occurrence is at the house of the petitioner. It was also not controverted that except for Patna High Court CR. MISC. No.354820 dt.20 07 2021 fracture on the hand of the informant all other injuries are simple in nature as also the fact that independent witnesses have stated that even the informant had attacked the petitioner by iron rod and he had sustained injuries. 8. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties in the event of arrest or surrender before the Court below within six weeks from today the petitioner be released on bail upon furnishing bail bonds of Rs. 25 000 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 andthat the petitioner shall cooperate with the Court and the police prosecution. Any violation of the terms and conditions of the bonds or undertaking or failure to cooperate shall lead to cancellation of his bail bonds. 9. It shall also be open for the prosecution to bring any violation of the foregoing conditions of bail by the Patna High Court CR. MISC. No.354820 dt.20 07 2021 petitioner to the notice of the Court concerned which shall take immediate action on the same after giving opportunity of hearing to the petitioner 10. The petition stands disposed off in the (Ahsanuddin Amanullah J J. Alam

Balance & Security Confirmation Letters Sufficient Acknowledgment Of Debt For Extending Limitation : NCLAT

Balance and security confirmation letters’ would amount to sufficient acknowledgment of debt to extend limitation under Section 18 of the Limitation Act, for initiating insolvency proceedings. The order passed by the NCLAT New Delhi (principle bench), in its decision in   Lakshmi Narayan Sharma v. Punjab National Bank, (Company Appeal (AT) (CH) (Insolvency)No.01 of 2021)   by Hon’ble Shri  Justice Venugopal M The facts of the case was such that the Corporate Debtor alongside Maha Hotels Projects Pvt. Ltd. was granted a public-private organization venture to create and work a four-star inn on formwork move premise with the National Institute of Tourism and Hospitality Management. To work with the task, the Corporate Debtor has endorsed a consortium loan by Punjab National Bank/Respondent alongside Punjab and Sindh Bank according to a consortium loan arrangement and assent letters. Because of a few deferrals and complexities in the fruition of the undertaking, the Corporate Debtor defaulted to its greatest advantage installments. Against such default, Respondent favored an application under Section 7 of the Insolvency and Bankruptcy Code before the Adjudicating Authority. The Adjudicating Authority request dated 18 January 2021 conceded the Section 7 Application recorded by Respondent holding that the monetary leaser had set up the obligation and default through different archives documented, and accordingly proclaimed the ban. The Impugned Order came to be tested before the NCLAT by a Promoter of the Corporate Debtor as an oppressed individual. The counsel on behalf of the Appellant looked to challenge the accuracy of the Impugned Order on the ground of limitation. The Appellant battled that the Section 7 Application was liked past the endorsed limitation period and the Adjudicating Authority submitted a grave blunder in conceding something very similar. According to the Appellant, the date of default for all offices given by Respondent according to the Section 7 Application was 30 March 2016, though the Section 7 Application was documented uniquely on 18 July 2019 which is past the three-year period of limitation. The NCLAT clarified the law as under Section 18 of the Limitation Act to express, that the arrangement doesn’t urge that an ‘acknowledgment’ must be in a particular structure or to be express. The acknowledgment for each situation must be analyzed settling upon the chaperon conditions to close a confirmation that the author owes an obligation. Further, to be treated as an acknowledgment, the author should be aware of his risk and the responsibility should be made in regard of such obligation. The NCLAT saw that in the moment case, the underwriters of the Corporate Debtor had executed ‘equilibrium and security affirmation letters’ dated 20 February 2018 in regard of the records of the Corporate Debtor, in this manner recognizing the ‘obligation’ in unequivocal terms. The NCLAT noticed that under the ‘equilibrium and security affirmation letters’, the underwriters had explicitly affirmed the accuracy of the charge balance. The NCLAT was of the view that there was truth be told an acknowledgment of obligation as perceived under Section 18 of the Limitation Act, naming it as a powerful, unavoidable and unpreventable end considering the ‘equilibrium and security affirmation letters’. The period of limitation in this way stood reached out by prudence of the acknowledgment. The NCLAT inferred that the Section 7 Application liked by Respondent in July 2019 was viable in law and well inside the period of limitation. The NCLAT expressed that Respondent had demonstrated the presence of obligation as well as demonstrated the default through reports recorded alongside its application and there was no mistake submitted by the Adjudicating Authority in conceding said application. The appeal was in like manner dismissed.

NATIONAL COMPANY LAW APPELLATE TRIBUNAL CHENNAI APPELLATE JURISDICTION) Company Appeal(CH)Arising out of the Order dated 18.01.2021 in CP(IB) No.599 7 HDB 2019 passed by the Hon’ble National Company Law Tribunal Hyderabad Bench Hyderabad) In the matter of: Lakshmi Narayan Sharma Promoter of Corporate Debtor R o Flat No.6113 Sector B 8 Vasant Kunj New Delhi 110070. 1. Punjab National Bank Respondent No.1 Large Corporate Branch Represented by its Deputy General Manager 8 2 672 Sifi Chambers Road No.1 Banjara Hills Hyderabad 500034. 2. Mr.T.S.N.Raja Interim Resolution Professional of Corporate Debtor No.16Shop cum Flat Huda Complex Kothapet Hyderabad 500035. Respondent No.2 Present : For Appellant : Mr. Rajashekar Rao Sr. Advocate For Mr. Suraj Prakash Mrinal Lotoria Advocates For Respondent No.1 : Shri T.Ravichandran Advocate For Respondent No.2 : Shri T.S.N.Raja PCA JUDGMENT The Appellant has preferred the present Appeal as an ‘Aggrieved Person’ against the ‘Impugned Order’ dated 18.01.2021 passed by the ‘Adjudicating Company Appeal(AT)(Ins) No.021 Authority’in The ‘Adjudicating Authority’ National Company Law Tribunal Hyderabad Bench Hyderabad while passing the ‘Impugned Order’ dated 18.02.2021 in C.P.(IB).No.599 7 HDB 2019at Paragraph 10 had among other things observed that the ‘Financial Creditor’ had established the ‘debt and default’ through various documents filed along with the Applications and ultimately admitted the ‘Application’ by declaring the ‘Moratorium’ and issued necessary directions thereto. Appellant’s Contentions: According to the Learned Counsel for the Appellant the Appellant is the ‘Promoter Suspended Director’ of ‘Corporate Debtor’ controlling the majority of shareholding 100% of the paid up capital of Saptarishi Hotels Private Limited ‘Corporate Debtor’) through its holding Company Maha Hotels Projects Private The Learned Counsel for the ‘Appellant’ submits that the ‘Corporate Debtor’ M s.Saptarishi Hotels Private Limited is a ‘Special Purpose Vehicle’ incorporated to undertake a Public Private Partnershipproject to develop and operate a Four Star Hotel on ‘Build Operate Transfer’Basis under Andhra Pradesh Infrastructure Development Enabling Act 2001 with National Institute of Tourism and Hospitality Management‘an undertaking of Telangana “Tourism Development Corporation Limited”(CH)No.021 developer was to develop the project on its own cost and operate on revenue sharing with National Institute of Tourism and Hospitality Management and transfer back the project to National Institute of Tourism and Hospitality Management at the end of 33 years. The Learned Counsel for the Appellant points out that the ‘Corporate Debtor’ was sanctioned ‘Consortium Loan’ by the 1st Respondent Punjab National Bank and Punjab Sind Bank as per ‘Consortium Loan Agreement’ and ‘Sanction Letters’. It is represented on behalf of the Appellant that the 1st Respondent Punjab National Bank had sanctioned credit facilities amounting to INR 90 Crores and Punjab Sind Bank had sanctioned facilities totalling INR 80 Crores on 11.08.2011 as per ‘Consortium Agreement’ dated 11.08.2011. Further the date of ‘CoD’ was extended upto 01.02.2016 by the ‘Consortium’ on 26.12.2014 and that the 1st Respondent Punjab National Bank on 04.04.2015 issued a ‘Sanction Letter’ for additional facilities to the tune of INR 18.67 Crores for which disbursal was to commence by 30.03.2015. Also that the development of construction of the project was delayed due to delay in clearance by the Local Authorities and that the interest payment was defaulted by the ‘Corporate Debtor’. The Learned Counsel for the Appellant comes out with a plea that the 1st Respondent Bank projected the application under Section 7 of the I & B Code which was served on the ‘Corporate Debtor’ by the Learned Counsel for the 1st Respondent Bank on 18.07.2019. Besides this it is the version of the Appellant that the application under Section 7 of the I & B Code 2016 was filed before the ‘Tribunal’ on 18.07.2019 or any subsequent date. Company Appeal(AT)(Ins) No.021 8. The Learned Counsel for the Appellant takes a stand that since the ‘Date of Default’ for all the facilities by the 1st Respondent Punjab National Bank as per Part IV of the Application under Section 7 of the Code was on 30.03.2016 and that the limitation lapsed on 29.03.2019. In any case the date of ‘Non Performing Asset’ was on 30.06.2016. The limitation period resting upon ‘NPA’ expired on 29.06.2019. As such it is the submission of the Learned Counsel for the Appellant that the Application filed by the 1st Respondent Punjab National Bankis barred by ‘Limitation’ as the same was filed on 18.07.2019 or any date thereafter. The Learned Counsel for the Appellant emphatically contends that if the ‘Date of Default’ is considered as the date from which the limitation starts running then the Petition under Section 7 of the I & B Code is barred by 111 days or more and if date of ‘NPA’ is considered to be date from which the limitation starts running then the Petition is barred by 19 days or more. 10. The Learned Counsel for the Appellant submits that the ‘Adjudicating Authority’ has no jurisdiction to admit the ‘Corporate Debtor’ for ‘Corporate Insolvency Resolution Process’ in spite of the fact the same being barred by ‘Limitation’. 11. The Learned Counsel for the Appellant points out that the impugned order was passed in violation of the principles of ‘Natural Justice’ since no finding was rendered on the issue of Section 7 Application being barred by ‘Limitation’. 12. The Learned Counsel for the Appellant projects an argument that ‘CIRP’ is a proceeding for ‘Resolution of Insolvency’ and not for repayment of ‘Debt’ Company Appeal(AT)(Ins) No.021 and therefore an ‘Acknowledgement of Debt’ will not help the cause of the ‘Applicant’. 13. The Learned Counsel for the Appellant submits that the ‘impugned order’ is a ‘nullity’ in the eye of Law because of the fact that the ‘Adjudicating Authority’ had not decided the ‘issue of limitation’. Appellant’s Decisions: 14. The Learned Counsel for the Appellant cites the Hon’ble Supreme Court decision in BabulalVardharji Gurjar v Veer Gurjar Aluminium Industries Pvt. Ltd. & anr reported in SCC Online SC 647 wherein under the caption ‘whether Section 18 Limitation Act could be applied to the present case’ at Paragraphs 91 to 93 it is observed as under: “91. While the aforesaid principles remain crystal clear with the consistent decisions of this Court the only area of dispute around which the contentions of learned Counsel for the parties have revolved in the present case is about applicability of Section 18 of the Limitation Act and effect of the observations occurring in paragraph 21 of the decision in Jignesh Shah(CH)No.021 the aforesaid paragraph 21 of Jignesh Shah to mean that the ratio of B.K. Educational Services has in any manner been altered by this Court. As noticed in B.K. Educational Services it has clearly been held that the limitation period for application under Section 7 of the Code is three years as provided by Article 137 of the Limitation Act which commences from the date of default and is extendable only by application of Section 5 of Limitation Act if any case for condonation of delay is made out. The findings in paragraph 12 in Jignesh Shah makes it clear that the Court indeed applied the principles so stated in B.K. Educational Services and held that the winding up petition filed beyond three years from the date of default was barred by time. 93. Even in the later decisions this Court has consistently applied the declaration of law in B.K. Educational Servicesthis Court rejected the contention suggesting continuing cause of action for the purpose of application under Section 7 of the Code while holding that the limitation started ticking from the date of issuance of recovery certificate dated 24.12.2001. Again the case of Gaurav Hargovindbhai Dave where the date of default was stated in the application under Section 7 of the Code to be the date of NPA i.e. 21.07.2011 this Court held that the limitation began to run from the date of NPA and hence the application filed under Section 7 of the Code on 03.10.2017 was barred by 1st Respondent’s Submissions: 15. The Learned Counsel for the 1st Respondent Bank contends that the Appellant had not filed two vital documents viz. the ‘Balance and Security Confirmation Letter’ dated 20.02.2018 executed by the ‘Corporate Debtor’. Further on behalf of the 1st Respondent Bank attention of this ‘Tribunal’ drawn ‘Balance Security Confirmation Letter’ dated 20.02.2018 Company Appeal(AT)(Ins) No.021 Rs.78 74 73 945 and the ‘Balance and Security Confirmation Letter’ dated 20.02.2018 for Rs.4 15 03 499.06 both of them duly signed by 16. The Learned Counsel for the 1st Respondent Bank brings to the notice of this ‘Tribunal’ that on 15.10.2018 a sum of Rs.15 262.75 was paid by the ‘Corporate Debtor’ to the Credit of the ‘Loan Account’ and the above facts will clearly establish that there was an ‘Acknowledgement of Debt’ as contemplated under Section 18 and 19 of the Limitation Act 1963. 17. The Learned Counsel for the 1st Respondent Bank cites the Judgment of this Tribunal in Yogeshkumar Jashwantlal Thakkar v Indian Overseas Bank & anr.No.2320 reported in 2020 SCC Online NCLAT 636 wherein at Paragraphs 23 25 30 33 34 36 and 38 it is observed and held as under: “23. It is to be pertinently pointed that that in the decision of Hon’ble Supreme Court ‘Sampuran Singh’ v. Naranjan Singh’ AIR 1999 SC 1047 at special page 1050 it is observed that Section 18 of sub sectionstarts with the words ‘where before the expiration of the prescribed period for a suit or application in respect of any property or right and acknowledgement of liability in respect of such property or right has been made’. 25. In the decision of Hon’ble Supreme Court in ‘Babulal Vardharji Gurjar’ v. ‘Veer Gurjar Aluminium Industries Pvt. Ltd.’at paragraph 33.1 it is observed as under: “33.1 Therefore on the admitted fact situation of the present case where only the date of default as ’08.07.2011’ has been stated for the purpose of maintaining the application u s 7 of the Code and not even a foundation is laid in the application for suggestions any acknowledgement or any other date of default in our view the Company Appeal(AT)(Ins) No.021 submissions sought to be developed on behalf of the respondent no.2 at the latest stage cannot be permitted. It remains trite that the question of limitation is essentially a mixed question of law and facts and when a party seeks application of any particular provisions for extension or enlargement of the period of limitation the relevant facts are required to be pleaded and requisite evidence is required to be adduced. Indisputably in the present case the respondent No.2 never came out with any pleading other than stating the date of default as ’08.07.2011’ in the application. That being the position no case for extension of period of limitation is available to be examined. In other words even if section 18 of the Limitation Act and principle thereof were applicable the same would not apply to the application under consideration in the present case looking to the very averment regarding default therein and for want of any other averment in regard to acknowledgement. In this view of the matter reliance on the decision in Mahaveer Cold Storage Pvt. Ltd. does not advance the cause of the Respondent No.2. 30. An acknowledgement of debt interrupts the running of prescription. An acknowledgement only extends the period of limitation as per decision ‘P. Sreedevi’ v. ‘P. Appu’ AIR 1991 Ker 76. It is to be remembered that a mere denial will not take sheen off the document and the claim of creditor remains alive within the meaning of Section 18 of the Limitation Act. Besides this an acknowledgement is to be an ‘acknowledgement of debt’ and must involve anadmission of subsisting relationship of debtor and creditor: and an intention to continue it and till it is lawfully determined must also be evident as per decision ‘Venkata’ v. Company Appeal(AT)(Ins) No.021 ‘Parthasarathy’ 16 Mad 220. An acknowledgement does not create a new right. 33. It is to be relevantly pointed out that a judgment of the Court has to be read in the context of queries which arose for consideration in the case in which the judgment was delivered. Further an ‘obiter dictum’ as distinguished from a ‘ratio decidendi’ is an observation by the court on a legal question suggested in a case before it not arising in such manner as to require a determination. An ‘obiter’ may not have a binding precedent as the observation was not necessary for the decision pronounced. Even though an ‘obiter’ may not have a bind effect as a ‘precedent’ but it cannot be denied it is of immense considerable weight. 34. It is not out of place for this Tribunal to make a significant mention that in the decision ‘Quinn’ v. ‘Leathem’ A.C. 495 at 596 the dicta of Lord Halsbury is .. every judgment must be read as applicable to the particular facts proved or assumed to be proved since the generality of the expressions which may be found there are not intended to be expositions of the whole law but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides’. 36. The present case centres around mixed question of ‘Facts’ and ‘Law. The 1st Respondent Bank as per the format as mentioned at para 20 of this judgment had given the date of ‘Default’ ’NPA’ as 01.01.2016 and that the Section 7 of the application of ‘I&B’ Code was filed before the Adjudicating Authority 01.04.2019 by the 1st Respondent Bank. Prima facie the Appeal needs to be allowed if this is the single ground. However in the interest case the 1st Company Appeal(AT)(Ins) No.021 Respondent Bank had obtained balance confirmations certificate the last one being 31.03.2017 as mentioned elaborately in Para 21 of this judgment. Although this Appellate Tribunal had largely held in ‘Rajendra Kumar Tekriwal’ v. ‘Bank of Baroda’ in Company Appeal(Ins) No.2220 and in Jagdish Prasad Sarada v. Allahabad Bank in Company Appeal No.183 of 2020 both being three Members Bench) had taken a stand that the Limitation Act 1963 will be applicable to all NPA cases provided they meet the criteria of Article 137 of the Schedule to the Limitation Act 1963 the extension of the period can be made by way of Application under Section 5 of the Limitation Act 1963 for condonation of delay however the peculiar attendant facts and circumstances of the present case which float on the surface are quite different where the 1st Respondent Bank had obtained Confirmations Acknowledgements in writing in accordance with Section 18 of the Limitation Act periodically. As a matter of fact Section 18 of the Limitation Act 1963 is applicable both for ‘Suit’ and ‘Application’ involving ‘Acknowledgment of Liability’ creating a fresh period of limitation which shall be computed from the date when the ‘Acknowledgement’ 37. For better and fuller appreciation of the present subject matter in issue it is useful for this Tribunal to make a pertinent reference to Section 18 of the Limitation Act 1963 which runs as under: “18 Effect of acknowledgment in writing: 1) Where before the expiration of the prescribed period for a suit or application in respect of any property or right an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against Company Appeal(AT)(Ins) No.021 whom such property or right is claimed or by any person through whom he derives his title or liability a fresh period of limitation shall be computed from the time when the acknowledgment was so signed. 2) Where the writing containing the acknowledgement is undated oral evidence may be given of the time when it was signed but subject to the provisions of the Indian Evidence Act 1872(72) oral evidence of its contents shall not be received. Explanation. For the purpose of this section a) an acknowledgement may be sufficient though it omits to specify the exact nature of the property or right or avers that the time for payment delivery performance or enjoyment has not yet come or is accompanied by a refusal to pay delivery perform or permit to enjoy or is coupled with a claim to set off or is addressed to a person other than a person entitled to the property or right b) the word “signed” means signed either personally or by an agent duly authorised in this behalf and c) an application for the execution of a decree or order shall not be deemed to be an application in respect of any property or right.” 38. At this stage this Tribunal had perused the various confirmation letters as stated supra which are legally valid and binding documents between the inter se parties and the same cannot be repudiated on one pretext or other. Therefore this Tribunal comes to an inevitable inescapable and irresistible conclusion that the date of default i.e. Company Appeal(AT)(Ins) No.021 01.01.2016 gets extended by the debit confirmation letters secured by the 1st Respondent Bank from the Corporate Debtortowards the outstanding debt in ‘Loan Account’. Indeed the application under Section 7 of the I & B Code 2016 was filed by the 1st Respondent Bank on 01.04.2019 before Authority’ within the period of Limitation. Furthermore in view of the fact that ingredients of Section 18 of the Limitation Act 1963 are quite applicable both for ‘Suit’ and ‘Application’ and the debit confirmation letters in the instant case were duly acknowledged in accordance with Law laid down on the subject the instant Appeal deserves to be dismissed and accordingly the same is dismissed since there being no legal infirmities found in the Impugned order passed by Adjudicating Authority in admitting CP No. declaring moratorium Resultantly all connected Interlocutory Applications are closed. There shall be no order as to costs.” 18. The Learned Counsel for the 1st Respondent Bank submits that the order of the Three Members Hon’ble Bench made in Bishal Jaiswal v Asset Reconstruction CompanyLtd. and AnotherINS 3820 on the file of National Company Law Appellate Tribunal New Delhi relates to the reference for reconsideration of the Judgment of the ‘Appellate Tribunal’ rendered in the case of V. Padmakumar vs. Stressed Assets Stabilisation Fund and in the said Judgment the issue that arose with the ‘Tribunal’ was whether an ‘Acknowledgement of Debt’ in the ‘Balance Sheet’ can be treated as a valid acknowledgement for an extension of limitation period. Company Appeal(AT)(Ins) No.021 Discussions: In the Application filed by the 1st Respondent Punjab National Bank ‘Financial Creditor’) Rules 2016] to initiate CIRP in respect of M s. Saptarishi Hotels Private Limited the Bank under Part IV ‘Particulars of the Financial Debt’ had mentioned the TOTAL AMOUNT OF DEBT AMOUNT CLAIMED TO BE IN DEFAULT AND THE DATE ON WHICH THE DEFAULT OCCURD ATTACH THE WORKINGS FOR COMPUTATION OF AMOUNT AND DAYS OF DEFAULT TABULAR FORM) 17 06 2011 Rs.90.00 crs and 30 03 2015 Rs.18.67 crs. Rs.78 74 73 945 as on 31.03.2016 against Term Loan 1 and Rs.4 15 03 499.06 as on 31.03.2016 against Term Loan II total Rs.82 89 77 444 . Presently total memorandum dues as at 30.06.2019 is Rs.144 02 51 063.009 It comes to be known that the 1st Respondent Applicant ‘Financial Creditor’ together with ‘Punjab and Sind Bank’ had sanctioned to the ‘Borrower’ a ‘Financial Assistance’ of an aggregate amount of Rs.170 Crores on 11.08.2011. In the aggregate sum of Rs.170 Crores the share of the ‘Financial Creditor’ is Rs.80 Crores in respect of the ‘Term Loan’ and Rs.10 Crores against the ‘Bank Guarantee Ltd.’ 21. As a matter of fact the Corporate Debtor M s.Saptarishi Hotels Private Limited had agreed to avail letters of an aggregate sum of Rs.15 Crores by means of sub limits within the overall limits of the ‘Term Loan’ of Rs.80 Crores and an aggregate sum of Rs.10 Crores in respect of ‘Additional Bank Guarantee’ based on the terms and conditions specified in the concerned ‘Sanction Letters’. 22. According to the 1st Respondent Bank the Applicant Bank ‘Financial Creditor’ and the Punjab and Sind Bank had sanctioned additional limits of Rs.35 Crores and issued ‘Sanction Letter’ in this regard. Indeed the Loans sanctioned Company Appeal(AT)(Ins) No.021 by the 1st Respondent Bank ‘Financial Creditor’ along with the ‘Punjab and Sind Bank’ aggregating in all a loan amount of Rs.205 Crores runs as under: Amount of Term Loan agreed to be availed by the Borrowerhad failed in its repayment of the balance amount inspite of repeated reminders given by the Bank ‘Financial Creditor’ in respect of the loan facilities availed by it. It is brought to the fore that the 1st Respondent Bank ‘Financial Creditor’ had issued a notice to the ‘Corporate Debtor’ on 02.06.2016 as per Section 13(2) of the SARFAESI Act and that the ‘Corporate Debtor’ had not paid the debt sum despite the lapse of 60 days’ time given to it. 26. As on 30.06.2019 the outstanding amount due to be paid to the 1st Respondent ‘Financial Creditor’ Bank was Rs.144.03 Crores. The ‘Corporate Company Appeal(AT)(Ins) No.021 Debtor’ and the ‘Guarantors’ had executed ‘Balance and Security Confirmation Letters’ dated 20.02.2018 in respect of the accounts of Saptarishi Hotels Pvt. Ltd. thereby acknowledging the ‘debt’ in unequivocal terms. Admittedly a payment of Rs.15 262.75 was made by the ‘Corporate Debtor’ to the credit of the loan 27. On behalf of the ‘Appellant’ the contention raised before this ‘Tribunal’ is that the Application filed by the 1st Respondent Punjab National Bank ‘Financial Creditor’) is barred by limitation because of the fact that the application was filed on 18.07.2019 or any date thereafter. Furthermore it is projected that the ‘Date of Default’ for all the facilities given by the Punjab National Bank in terms of Part IV of the Applicationis 30.03.2016 and that the limitation came to an end on 29.03.2019. Moreover the date of ‘Non Performing Asset’ is 30.06.2013. As such the Application filed by the 1st Respondent Punjab National Bank seeking initiation of ‘CIRP’ was admitted by the ‘Adjudicating Authority’ beyond the specified limitation period of 3 years. 28. The stand of the ‘Appellant’ is repelled by the 1st Respondent Bank that the total amount of debt granted on 17.06.2011 was Rs.90 Crores and on 30.03.2015 was Rs.18.67 Crores and that the amount claimed to be in default was Rs.78 74 73 945 as on 31.03.2016 against ‘Term Loan 1’ and Rs.4 15 03 499.06 as on 31.03.2016 against the ‘Term Loan 2’ totalling in all a sum of Rs.82 89 77 444 and the total memorandum dues as on 30.06.2019 was Rs.144 02 51 063.09. Further the guarantor(s) on 20.02.2018 had executed ‘Balance and Security Confirmation Letters’ for Rs.78 74 73 945 in respect of the account of Saptarishi Hotels Pvt. Ltd.in respect of the ‘Term Loan Facility’ which clearly point out there was an Company Appeal(AT)(Ins) No.021 ‘Acknowledgement of Debt’ in terms of Section 18 and 19 of the Limitation Act 29. That apart it is pertinently pointed out by this ‘Tribunal’ that the Hon’ble Supreme Court in the Judgment in Civil Appeal No.323 of 2021 with Civil Appeal No.32220 Civil Appeal No.21 Civil Appeal No. of 2021 SLP No.1168 of 2021) dated 15.04.2021 in the matter of ‘Asset Reconstruction Company India Ltd. v Bihsal Jaiswal and Anr.’ had setaside the Full Bench Judgment of the NCLAT dated 12.03.2020 in V. Padmakumar v Stressed Assets Stabilisation Fund CaseNo.57 of 2020) and the Full Bench Judgment of the NCLAT dated 22.10.2020 made in Bishal Jaiswal v Asset Reconstruction CompanyLtd. and Anr. Company AppealNo.3820and allowed the Appeal by remanding the matter to the NCLAT to be decided in accordance with law laid down in the Judgment. Insolvency and Bankruptcy Code 2016: 30. Section 3(6)(a) of the I & B Code 2016 defines “claim” meaning ‘a right to payment whether or not such right is reduced to judgment fixed disputed undisputed legal equitable secured or unsecured’. Section 3(8) of the Code defines “Corporate Debtor” meaning ‘a Corporate person who owes a debt to any person’. Section 3(10) defines “Creditor” meaning ‘any person to whom a debt is owed and includes a financial creditor an operational creditor a secured creditor an unsecured creditor and a decree holder. 31. Section 3(11) of the I & B Code defines “debt” meaning ‘a liability or obligation in respect of a claim which is due from any person and includes a financial debt and operational debt. Section 3(12) of the code defines “default” meaning ‘non payment of debt when whole or any part or instalment of the amount of debt has become due and payable and is not paid by the debtor or the corporate debtor as the case may be.’ Company Appeal(AT)(Ins) No.021 Limitation Act 1963: 32. To be noted that Section 18 of the Limitation Act 1963 does not enjoin that an ‘acknowledgement’ has to be in any particular form or to be express. It must be borne in mind that an ‘acknowledgement’ is to be examined resting upon the attendant circumstances by an admission that the writer owes a ‘Debt’. No wonder an ‘Unconditional Acknowledgement’ implies a promise to pay because that is the natural inference if there is no other contrary material. Further the writing signed by an individual as an ‘Acknowledgement’ the person acknowledging must be conscious of his liability and the commitment ought to be made in respect of that liability. 34. Be that as if may on a careful consideration of respective contentions projected on either side this ‘Tribunal’ considering the prime fact that the Guarantor(s) in respect of the Accounts of the ‘Corporate Debtor’ M s.Saptarishi Hotels Private Limited had executed the ‘Balance and Security Confirmation Letters’ dated 20.02.2018 for the due amount of Rs.78 74 73 945 and keeping in mind yet another fact that a sum of Rs.15 262.75 was paid by the ‘Corporate Debtor’ on 15.10.2018 and as on 30.06.2019 the due amount was Rs.144 02 51 063.09 comes to an irresistible inevitable and inescapable conclusion that in respect of the loan account of the ‘Corporate Debtor’ there was an ‘Acknowledgement of Debt’ as per Section 18 and 19 of the Limitation Act 1963. In fact the Application filed by the 1st Respondent ‘Financial Creditor’ in July 2019 is perfectly maintainable in Law of course well within the period of Limitation. As such the Contra Plea taken on behalf of the ‘Appellant’ that the Application filed by the 1st Respondent ‘Financial Creditor’ Punjab National Bank) is barred by Company Appeal(AT)(Ins) No.021 limitation is legally untenable and is rejected. In the present case the 1st Respondent Bankhas proved the existence of ‘Debt and Default’filed along with the Application under Section 7 of the Code against the ‘Corporate Debtor’ and that the conclusion arrived at in admitting the ‘Application’ by the ‘Adjudicating Authority’ is free from legal infirmities as opined by this ‘Tribunal’. Resultantly the ‘Appeal’ fails. In fine the Instant Company Appeal No.01 of 2021 is dismissed but without costs. I.A.021is closed. Justice Venugopal M] MemberV.P. Singh] MemberCompany Appeal(AT)(Ins) No.021

Merely delay in recording the statement of the witness/abductee cannot result into the quashing of the FIR: High Court of J&K and Ladakh

The petitioner can take the advantage of the delay in recording the statement of the girl during the course of trial in the event of filing of challan provided the prosecution is unable to explain the delay in recording the said statement, but nonetheless, merely delay in recording the statement of the witness/abductee cannot result into the quashing of the FIR as held by the Hon’ble High Court of J&K and Ladakh through a learned bench of Justice Rajnesh Oswal in the case of Mohsin Rizvi Vs Union Territory of J&K and another. [CRM(M) No. 675/2019 (O&M)] The brief facts of the case are that the petitioner was 19 years of age and had friendly relations with one girl named withheld. The friendly relations of the petitioner were not to the liking of the mother of the girl because the petitioner and the said girl belonged to different religions. However, at no point of time there was any physical relationship with the petitioner and the said girl. In order to stop the petitioner with the meeting of the said girl and to pressurize the petitioner, the mother of the girl filed a complaint with Police Post City, Rajouri and succeeded to lodge the FIR impugned dated 19.12.2017 under sections 363 and 109 RPC against the petitioner. It was further submitted that during this intervening period of two years, the said girl was married to one Mr. Ajay Yadav and is living presently in Delhi and she was reportedly having a girl child from her matrimonial wedlock from the said marriage as well. It is further stated that in order to avoid her prosecution, as the false and frivolous FIR was lodged by the mother of the girl, the mother of the girl got the statement of her daughter recorded in support of her allegations after two years of lodging of the FIR and this mere fact alone, demonstrates the falsity of the impugned FIR. Mr. Sunil Sethi, learned senior counsel for the petitioner has vehemently argued that the statement of the victim was recorded after two years and offence under sections 363 and 376 were added and the mere fact that the statement of the victim was recorded after two years demonstrates that a false and frivolous FIR had been lodged by the mother of the victim. On the other hand, Mr. Bhanu Jasrotia, learned GA has vehemently argued that the investigation was carried out and pursuant to the investigation, offences under sections 366 and 376 RPC were also added and mere fact that there was delay in recording the statement of the victim cannot result into the quashment of the FIR. The Hon’ble High Court, after hearing both the sides, stated that “The petitioner can take the advantage of the delay in recording the statement of the girl during the course of trial in the event of filing of challan provided the prosecution is unable to explain the delay in recording the said statement, but nonetheless, merely delay in recording the statement of the witness/abductee cannot result into the quashing of the FIR. The other contention of Mr. Sethi that the said FIR was lodged with ulterior motive to desist the petitioner from continuing his friendly relationship with her daughter, is a disputed question of fact that cannot be adjudicated upon by this Court while considering a petiton for quashing the FIR. The petitioner can raise this plea during the course of trial in the event the charge-sheet is filed against the petitioner.”

HIGH COURT SOF JAMMU AND KASHMIR AND LADAKH AT JAMMU Reserved on 25.10.2021 Pronounced on 29.10.2021 CRM(M) No. 675 2019Mohsin Rizvi Through : Mr. Sunil Sethi Sr. Advocate with Mr. Mohsin Bhat Advocate Union Territory of J&K and another Through : Mr. Bhanu Jasrotia GA Mr. A. P. Malik Advocate CORAM: HON’BLE MR. JUSTICE RAJNESH OSWAL JUDGE The present petition has been filed by the petitioner for quashing FIR bearing No. 550 2017 dated 19.12.2017 for commission of offences under sections 363 and 109 RPC registered with Police Station Rajouri. It is stated that the petitioner is presently 19 years of age and had friendly relations with one girl named withheld. The friendly relations of the petitioner were not to the liking of the mother of the girl because the petitioner and the said girl belonged to different religions. However at no point of time there was any physical relationship with the petitioner and the said girl. In order to stop the petitioner with the meeting of the said girl and to pressurize the petitioner the mother of the girl filed a complaint with Police Post 2 CRM(M) No. 675 2019 City Rajouri and succeeded to lodge the FIR impugned dated 19.12.2017 under sections 363 and 109 RPC against the petitioner. It is further submitted that during this intervening period of two years the said girl was married to one Mr. Ajay Yadav and is living presently in Delhi and she is reportedly having a girl child from her matrimonial wedlock from the said marriage as well. It is further stated that in order to avoid her prosecution as the false and frivolous FIR was lodged by the mother of the girl the mother of the girl got the statement of her daughter recorded in support of her allegations after two years of lodging of the FIR and this mere fact alone demonstrates the falsity of the impugned FIR. The petitioner has impugned the FIR on the following grounds: That the FIR impugned is apparently false and frivolous as Had it been a case of sexual encounter of the said girl with the petitioner she could have got herself medically examined after the occurrence or her medical examination could have been done by the Police however no such examination was done and now the girl is married and the medical evidence has become irrelevant with the passage of time. ii) That there is no plausible explanation of the delay of two years in getting the statement of the girl recorded when the girl during this period was all along available in Rajouri and there was no pressure upon the girl not to give her statement. iii) That the petitioner is a juvenile on the day when the said allegation was made against him in the impugned FIR and the statement has been made by the girl only to save her mother 5. Response stands filed by the respondents in which it is stated that on CRM(M) No. 675 2019 from facing prosecution as the FIR lodged by her mother was iv) That the FIR impugned is liable to be quashed as none of the ingredients of sections 363 and 109 RPC are present against false. the petitioner. 19.12.2017 complainant lodged a written complaint at Police Post City Rajouri stating therein that she had been residing at W. No. 9 near Bus Stand Rajouri and her daughter aged 17 years is a student of 12th Class. On 18.12.2017 at 4.00 PM alleged persons namely Mohsin Quershi petitioner herein with the conspiracy of others kidnapped her daughter and took her to unknown place. On this report cognizable offence was entered vide DD No. 09 dated 19.12.2017 at Police Post City Rajouri and accordingly a case FIR No. 550 2017 for commission of offences under sections 363 and 109 RPC was registered at Police Station Rajouri. During the course of investigation the statement of the victim was recorded under section 164 A Cr.P.C. before the Chief Judicial Magistrate Rajouri on 07.11.2019 and offences under sections 366 and 376 were proved against the accused person namely Mohsin Rizvi petitioner herein and offences under sections 363 and 109 RPC were not proved and deleted. Mr. Sunil Sethi learned senior counsel for the petitioner has vehemently argued that the statement of the victim was recorded after two years and offence under sections 363 and 376 were added 4 CRM(M) No. 675 2019 and the mere fact that the statement of the victim was recorded after two years demonstrates that a false and frivolous FIR had been lodged by the mother of the victim. On the other hand Mr. Bhanu Jasrotia learned GA has vehemently argued that the investigation was carried out and pursuant to the investigation offences under sections 366 and 376 RPC were also added and mere fact that there was delay in recording the statement of the victim cannot result into the quashment of the FIR. Heard learned counsel for the parties and perused the record. From the record it is evident that on 19.12.2017 at 1340 hours complainant Neelam Devi lodged a report at Police Post City Rajouri and in which it was stated that his daughter was 17 years of age and on 18.12.2017 at 4 PM the accused along with others had kidnapped and taken her daughter to unknown place and despite search she could not be located. On this the FIR impugned was registered and it is also evident that the statement of the abductee was recorded after nearly two years of the alleged occurrence and during the course of investigation offence under section 376 RPC has been added and offences under sections 366 and 376 RPC have been proved as per the investigation. The only contention raised by Mr. Sethi is that there has been a delay of two years in recording the statement of the victim girl and it clearly shows that the false and frivolous FIR was lodged by the mother of the complainant in order to force the petitioner not to continue the friendly relationship with her daughter. A perusal of the FIR reveals the commission of cognizable offence and during the 5 CRM(M) No. 675 2019 course of investigation offences under sections 366 and 376 have been added and the contention that the FIR is required to be quashed because after two years statement of the girl was recorded is misconceived. The petitioner can take the advantage of the delay in recording the statement of the girl during the course of trial in the event of filing of challan provided the prosecution is unable to explain the delay in recording the said statement but nonetheless merely delay in recording the statement of the witness abductee cannot result into the quashing of the FIR. The other contention of Mr. Sethi that the said FIR was lodged with ulterior motive to desist the petitioner from continuing his friendly relationship with her daughter is a disputed question of fact that cannot be adjudicated upon by this Court while considering a petiton for quashing the FIR. The petitioner can raise this plea during the course of trial in the event the charge sheet is filed against the petitioner. In view of all what has been discussed above there is no merit in this petiton as such the same is dismissed. Judge JAMMU: Whether the order is speaking: Whether the order is reportable:

Mere fact that the petitioner did not physically hand over the possession of the premises, does not entitle the petitioner for any protection: Delhi High Court

It is a factual analysis that if a person, when ordered to vacate a possession, as a result does not vacate the same, there arises no point in demanding relief from the court. In the recent matter of Sushil Dutt v. Estate Officer/ AOC & Anr. [CM (M) 446/2021], before the Hon’ble Delhi High Court the above was held. The said matter was heard on September 7th 2021 before a single judge bench presided by Justice Sanjeev Sachdeva. The facts of the above case are as follows. Petitioner was appointed as an LDC in 1998 under the indigent circumstances on compassionate ground by the Air Officer In-Charge Personal (AOP), who holds the rank of an Air Marshal. A case under the Prevention of Corruption Act was registered and the petitioner was convicted and sentenced to undergo five years rigorous imprisonment. However, the petitioner denied allegations of corruption instituted against him. Further, he was convicted and was dismissed through the operation of Rule 14 read with Rule 19(i) of the Central Civil Services (Classification, Control and Appeal) Rules 1965. In the light of the above, the petitioners were requested to vacate their quarter which was given to the petitioner in the virtue of their post in the Air Force. After the conviction, Proceedings were also instituted under Public Premises Act. On getting the order from the lower coirt, the petitioners filed the case in the Delhi High Court.

IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on: 07th September 2021 CM(M) 446 2021 SUSHIL DUTT Petitioner ESTATE OFFICER AOC & ANR. Respondents Advocates who appeared in this case: For the Petitioner : Mr. Yudhvir Singh Chauhan Advocate For the Respondents: Mr. Ripudaman Bhardwaj Standing Counsel CORAM: HON’BLE MR JUSTICE SANJEEV SACHDEVA SANJEEV SACHDEVA J. impugns order dated 07.07.2021 whereby appellate authority under the Public Premises Eviction of Unauthorized Occupants) Act 1971 declined to grant an interim stay to the petitioner from vacating the staff accommodation. Petitioner was appointed as an LDC in 1998 under the indigent circumstances on compassionate ground by the Air Officer In Charge Personalwho holds the rank of an Air Marshal. A case under the Prevention of Corruption Act was registered CM446 2021 allegation. against the petitioner on 30.06.2016. Petitioner was convicted and to undergo five years rigorous imprisonment. The allegations against the petitioner were that he had made cash deposits of over Rs. 16 crores in his bank account. Petitioner has denied the Consequent to the conviction of the petitioner in the said case by order dated 15.02.2020 petitioner was dismissed from service under Rule 14 read with Rule 19(i) of the Central Civil Services Classification Control and Appeal) Rules 1965. Though petitioner has impugned the said dismissal order before the Central Administrative Tribunal however it is an admitted position that there is no stay of the said dismissal order and petitioner continues to remain dismissed from service. During his employment the petitioner was allotted a quarter bearing No. D 2 Vashist Vihar Rock View Area 3 Wing Air Force Station Palam Delhi Cantt. Post his dismissal he was permitted to continue to occupy the said quarter for a period of one month i.e. from 18.02.2020 till 17.02.2020. Petitioner was also struck of the strength of the Air Force on 18.02.2020. CM446 2021 Since petitioner failed to vacate the quarter after expiry of the period of one month proceedings under the Public Premises Act were initiated. Said proceedings culminated in an order of eviction proceedings passed on 03.11.2020. By order dated 12.03.2021 the Appellate Authority i.e. the District Judge remitted the matter to the Estate Officer to pass a fresh order after giving an opportunity of hearing to the petitioner. 10. Consequently another order dated 23.06.2021 was passed by the Estate Officer once again directing the petitioner to vacate the premises within a period of 15 days. 11. Petitioner filed the subject appeal impugning order dated 23.06.2021. In the said appeal the Appellate Authority by order impugned herein dated 07.07.2021 declined to grant any interim stay. 12. Petitioner has filed this petition impugning the order declining the grant of stay. 13. Before this Court petitioner has not been able to show any right or entitlement of the petitioner to retain the premises. It is an admitted position that petitioner stands dismissed from service in exercise of powers under Rule 14 read with Rule 19(i) of the Central Civil ServicesRules 1965 and there is no stay of the said order of dismissal. CM446 2021 14. Since petitioner does not remain in the service and has been struck off from the strength of the Air Force petitioner is not entitled to continue in possession of the accommodation which was allotted to him being in service. 15. Mere fact that an appeal is pending against an order of dismissal does not entitle petitioner to continue in occupation of the quarter meant for service personnel and allotted to the petitioner and consequently to an interim protection. I find no infirmity in the order dated 07.07.2021 whereby the appellate authority has declined to grant stay to the petitioner from eviction from the subject quarter. 17. A dispute has been raised by the counsel for the petitioner that petitioner has not handed over possession of the subject quarter but the quarter was forcibly taken over by the respondent. 18. An affidavit has been filed by the respondent pursuant to order dated 26.07.2021 wherein though it is recorded that petitioner did not hand over the keys however in the presence of the members of the Board of Officers the lock was broken and inventory of service item was checked and no personal belongings of the petitioner was found inside the quarter. CM446 2021 It is not disputed by learned counsel for the petitioner that petitioner has removed all his belongings from the said quarter. His case is that he had not physically not handed over possession. 20. Since the accommodation is within the boundary of the Air Force Station I do not find any infirmity in the action taken by the in appointing a Board of Officers chaired by a Commissioned Officer of the rank of Wing Commander. 21. Mere fact that the petitioner did not physically hand over the possession of the premises does not entitle the petitioner for any protection. Proceedings of the Board have been placed on record along with photographs which clearly show that the entire premises had been vacated and no article of the petitioner was found. It may further be noticed that before the Appellate Authority on 07.07.2021 as recorded in the impugned order petitioner had stated that since he was served on 03.07.2021 15 days time be granted to vacate the premises. Accordingly the Appellate Authority directed Petitioner to vacate the premises on 18.07.2021. 23. Petitioner thereafter admittedly vacated the premises but did not hand over the keys. A notice was pasted on the premises on 20.07.2021 and the Premises were taken over under the supervision of the Board of Offices on 22.07.2021. 24. The malafide conduct of the petitioner further requires a CM446 2021 mention as petitioner who was not entitled to continue in occupation sought time to vacate which was granted till 18.07.2021 and he vacated the premises on 18.07.2021 but purposely did not hand over the keys to the respondent. 25. As held herein above petitioner after his termination did not have any right or entitlement to continue in occupation of the government accommodation which was allotted to him being in service. In view of the above I do not find any infirmity in the impugned order or any merit in the petition. The petition is accordingly dismissed. SEPTEMBER 7 2021 SANJEEV SACHDEVA J CM446 2021

Common object required for offence punishable under Section 302/149 IPC: Supreme Court of India

It is always open for the appellate court to reverse findings on appreciation of evidence on record and there must be a common objective for the commission of an offense punishable under   Section   302/149 Indian Penal Code. This remarkable judgment was passed by the Hon’ble Supreme court of India in the matter of Rajendra @ Rajappa & Ors v. the State of Karnataka [CRIMINAL APPEAL NO.    1438     OF 2011]. The complainant  (PW­1)   Sheshamma,  the wife of the deceased.     That on   02.02.2003   the complainant and her husband went to coolie work in the morning and when they were returning along with firewood bundle and PW­2 was following them, at about 11:30 a.m. when the complainant and her husband came near the Government Hostel, all the accused A­1 to A­6 armed with an ax, stick, pickaxe, and stone, attacked the deceased and thereby inflicted fatal wounds on his person by assaulting him with weapons which they were carrying.  It is further alleged that the complainant rescued her husband, went behind the hostel, the accused followed them and A­1 assaulted the deceased with an ax on the left cheek, 3 Crl.A.No.1438 of 2011 A­2 assaulted with bedaga, A­3   assaulted with a stick, A­4 assaulted with the club, A­5 assaulted with an ax.  A­1 is the father of the complainant; A­2   and   A­4   are uncles of the complainant; A­3 and A­5 are sons of A­1’s sister and A­6 is one of the sisters of A­1.  It is alleged in the complaint that all the accused have attacked the deceased and started abusing him saying that, in spite of telling them not to pass from the front of their houses and to show their faces, they have come towards the side of the accused.  Further, it is stated in the complaint that when she and her husband tried to escape and ran away from the backside of the hostel, all the accused followed them and attacked them.   Further, it is stated that as her husband sustained grievous injuries he died on the spot, and said the incident was witnessed by her mother Sayamma and her sister Rathnamma, Mahesh, and their villagers Haji, Hussain has also seen.  In her complaint, she prayed to take action against the accused. The police, after investigation of the case and after completion thereof, filed a charge sheet against the accused under various sections, as stated already. The court viewed that “In view of the foregoing, we are of the view that the judgments relied on by the learned counsel for the appellants would not render any assistance in support of her case that the High Court has committed error in reversing the acquittal recorded by the Crl.A.No.1438 of 2011 trial court.”

STATERespondent IN THE HIGH COURT OF DELHI AT NEW DELHI CRL.M.C. 981 2021 Date of decision: 26th March 2021 Through Mr. B.P. Singh and Mr. Pratyaksh ..... Petitioner Roy Advocates IN THE MATTER OF: PAWAN GAUR Through Ms. Meenakshi Chauhan APP 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.47 2020 dated 19.02.2020 registered in Police Station Pahar Ganj New Delhi for offence under Sections 376 and 354 IPC on the ground that the parties have amicably settled the matter and the prosecutrix is not interested in prosecuting the petitioner. On a complaint of respondent No.2 FIR No.47 2020 was registered on 19.02.2020 in Police Station Pahar Ganj New Delhi stating that she is staying with her mother at the address given in the FIR. It is stated that in the year 2009 the prosecutrix was working as a Probationary Officer in Bank of Baroda House Branch India Gate where the petitioner was working as a Manager. It is alleged that the petitioner told her that he had Crl.M.C.981 2021 links in the U.S.A. and he can get a job for her there and also help her settle there. In March 2009 the petitioner lured the complainant calling her at his office at Pahar Ganj and forcefully tried to have physical relations with her but she did not reveal the same to anyone in the hope that he would get her settled in U.S.A. It is stated that the petitioner has established physical relationship with the prosecutrix. It is further stated that the petitioner told the mother of the prosecutrix that he has opened his company and in case the prosecutrix and her mother invest money in his company he would give 2% monthly interest and also get a job for the prosecutrix. It is stated that the mother of the prosecutrix gave a loan of Rs.24 00 000 to the petitioner in 2014. It is stated that after repeated requests the petitioner gave interest of Rs.7 50 000 from 2016 to 2017 after which he stopped giving money. It is stated that on 23.02.2019 the petitioner called the prosecutrix and told her to sit in the car while he calculates the amount which was due and payable by him. It is stated that when the prosecutrix sat in the car he started misbehaving and starting touching her private parts. It is stated that the prosecutrix went away from the car and filed a complaint in Police Station Pahar Ganj on 25.02.2019. It is stated that the petitioner pleaded with the prosecutrix not to go ahead with the complaint and he would return the money. It is stated that two post dated cheques of Rs.2 00 000 and Rs.24 00 000 were given by the petitioner. It is stated that after getting the cheques no action was taken against the petitioner. It is stated that both the cheques got dishonoured. The complainant approached the Police Station and has given the complaint in question. This petition has been filed on the ground that a Memorandum of Understanding has been entered into between the parties and the issues Crl.M.C.981 2021 have been amicably settled. Other than stating that the parties have entered into an amicable settlement no other ground has been raised in the petition on the merits of the case for quashing the complaints. The Supreme Court in Gian Singh v. State of Punjab reported as 2012) 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 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 involving such offences. But the criminal cases having overwhelmingly and predominatingly civil flavour stand on a different footing for the purposes of quashing particularly the Crl.M.C.981 2021 offences arising from commercial financial mercantile civil partnership or such like transactions or the offences arising out of matrimony relating to dowry etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases the High Court may quash the criminal proceedings if in its view because of the compromise between the offender and the victim the possibility of conviction is remote and bleak and continuation of the criminal case would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and the wrongdoer and whether to secure the ends of justice it is appropriate that the criminal case is put to an end and if the answer to the above question(s) is in the affirmative the High Court shall be well within its jurisdiction to quash the criminal proceeding.” emphasis added) After relying on Gian Singhthe Supreme Court in Narinder Singh & Ors. v. State of Punjab & Anr. reported as6 SCC 466 has observed as under: 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 Crl.M.C.981 2021 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 court. 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 offender. those criminal cases having 29.4. On overwhelmingly and predominantly civil character particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among 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." the other hand emphasis added) In State of M.P. v. Laxmi Narayan & Ors. reported as5 SCC 688 the Supreme Court has observed as under : 15. Considering the law on the point and the other decisions of this Court on the point referred to hereinabove it is observed Crl.M.C.981 2021 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 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 " emphasis added) The petitioner has been alleged of committing of an offence of rape. The grounds stated in the petition under Section 482 Cr.P.C. are oriented towards the fact that the parties have entered into a compromise and that no useful purpose will be served to continue with the prosecution. No ground has been raised on the merits of the case. In view of the judgments of the Supreme Court which is binding on all Courts under Article 141 of the Constitution of India this Court is not inclined to quash the FIR in which offence under Section 376 IPC has been levelled against the petitioner for the reasons that an offence under Section 376 IPC is one against the society and High Courts ought not to use the inherent powers under Section 482 Crl.M.C.981 2021 Cr.P.C. in quashing FIRs under Section 376 IPC even if the prosecutrix has entered into a compromise with the accused. In view of the above the petition is dismissed. SUBRAMONIUM PRASAD J. MARCH 26 2021 Crl.M.C.981 2021

Evident that commercial disputes are required to be dealt with as per the provisions of the Commercial Courts Act, 2015: The High Court of Sikkim

The procedure prescribed in the Commercial Courts Act, 2015(the act) is different from how a Money Suit is dealt with under the Code of Civil Procedure, 1908 (CPC). Section 16 of the Act relates to the amendment to the CPC. The CPC stands amended in the manner as specified in the schedule. In the case of M/s Thomas Enterprises v. N. L. Thomas [RFA/04/2018] in the Hon’ble High Court of Sikkim led through the division bench by Justice Bhaskar Raj Pradhan & Justice Meenakshi M. Rai. The facts of the case are that a Request for Application was filed on 05.10.2018 against the judgement and decree dated 30.07.2018 passed by the District Judge, South Sikkim. It was dealt with a single judge and examined that a prima facie view that the matter pertained to a commercial dispute and ought to be tried as per the Commercial Courts Act, 2015 (Commercial Act). In terms of Circular No.06/HCS/Judl. dated 27.04.2021 of this court the matter was directed to be placed before the Hon’ble Chief Justice for appropriate directions. Further, the Hon’ble Chief Justice of this court revoked the circular and thereto the matter came up for hearing before this Division Bench. The counsels from both sides expressed their view that since the dispute between the parties had not been tried as a commercial dispute there has arisen a legal conundrum and the only way out is to set aside the impugned judgment and decree and transfer the Money Suit to the Commercial Court. Section 2 (1) (c) of the act defines commercial dispute. The learned counsel for the parties agrees that the dispute in the present matter is a commercial dispute. The Money Suit filed by the respondent sought a decree against the appellants for a sum of Rs.1,29,00,728/- along with interest @ 12% per annum on and from 01.04.2014 till realization. Considering the nature of the dispute it is apparent that it is a commercial dispute. Section 6 of the Act provides for the jurisdiction of the Commercial Courts. It has jurisdiction to try all suits and applications relating to a commercial dispute of a specified value arising out of the entire territory of the State over which it has been vested territorial jurisdiction. Section 12 provides how specified value ought to be determined in a suit, appeal or application. An earnest glance of the Act makes it evident that commercial disputes are required to be dealt with as per the provisions of the Act. The procedure prescribed is different from how a Money Suit is dealt with under the Code of Civil Procedure, 1908 (CPC). Section 13 of the Act provides for appeals from decrees of the Commercial Court and Commercial Division. The High Court of Sikkim concluded, “The failure of the learned District Judge to examine and transfer the Money Suit to the Commercial Court has resulted in defeating the very object of the enactment of the Act to provide for speedy disposal of high-value commercial disputes.” The court concludes “We are thus of the considered view that the impugned judgment and decree dated 30.07.2018 passed by the learned District Judge in the Money Suit must be set aside and the Money Suit transferred to the files of the Commercial Court. The Money Suit shall then be tried by the Commercial Court as per the provisions of the Act. It is accordingly ordered. Pending application is also disposed.”

THE HIGH COURT OF SIKKIM: GANGTOK Civil Appellate Jurisdiction) DIVISION BENCH: HON’BLE MRS. JUSTICE MEENAKSHI MADAN RAI JUDGE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN JUDGE R.F.A. No. 018 1. M s Thomas Enterprises Kalyani Apartments Sevoke Road Siliguri 734401 West Bengal. 2. N.L. Thomas M s Thomas Enterprises Kalyani Apartments Sevoke Road Siliguri 734401 West Bengal. ….. Appellants M s Yuksom Breweries Limited Melli South Sikkim Pin No. 737128. ….. Respondent Appeal under Order XLI Rule 1 and 2 of the Code of Civil Procedure 1908. Mr. Anmole Prasad Senior Advocate with Mr. Sagar Chettri Advocate for the Appellants. Mr. Jorgay Namka Advocate for the respondent. Date of hearing : 29.10.2021 Date of pronouncement: 01.11.2021 Bhaskar Raj Pradhan J. ORDER RFA No 04 of 2018 was filed on 05.10.2018 against the judgment and decree dated 30.07.2018passed by the learned District Judge South Sikkim at Namchi in Money Suit No.3 of 2016 Money Suit). It was dealt with by the learned Single Judge of this court from 25.10.2018 till 22.10.2021. On examination the learned Single Judge came to a prima facie view that the matter pertained to a commercial dispute and ought to be tried as per the Commercial Courts Act 2015 (c) defines commercial dispute. The learned counsel for the parties agrees that the dispute in the present matter is a commercial dispute. The Money Suit filed by the respondent sought a decree against the appellants for a sum of Rs.1 29 00 728 along with interest @ 12% per annum on and from 01.04.2014 till realization. It was the respondent’s case that the appellant no.1 had been assigned its marketing distribution work as its sole agent for the North Bengal region. The respondent relied upon memorandum of understanding and an agreement of agency between them as well as a promissory note executed by the appellant no.2. Considering the nature of the dispute it is apparent that it is a commercial dispute. Vide Notification No.27 HCS Judl. dated 20.08.2016 the Hon’ble Chief Justice in exercise of powers vested on him under Section 5(1) of the Act constituted the Commercial Appellate Division in this court to deal with appeals arising from the Commercial Courts Commercial Division as provided under Section 13 of the No.58 Home 2016 dated 06.10.2016 in exercise of the powers Act. R.F.A. No. 018 M s Thomas Enterprises & Anr. vs. M s Yuksom Breweries Ltd. conferred by Section 3 of the Act designated the District & Sessions Court of all the four districts as “Commercial Courts” and the Judges of the District & Sessions Courts as the Judges of the Commercial Courts for the purpose of adjudicating commercial disputes within their respective jurisdiction with immediate effect. Section 6 of the Act provides for jurisdiction of the Commercial Courts. It has jurisdiction to try all suits and applications relating to a commercial dispute of a specified value arising out of the entire territory of the State over which it has been vested territorial jurisdiction. Section 2 (i) defines specified value. Specified value in relation to a commercial dispute shall mean the value of the subject matter in respect of a suit as determined in accordance with Section 12 which shall not be less than three lakh rupees or such higher value as may be notified by the Central Government. Section 12 provides how specified value ought to be determined in a suit appeal or application. Section 12 A of the Act mandates a pre institution mediation and settlement. A suit which does not contemplate any urgent interim relief under the Act shall not be instituted unless the plaintiff exhausts the remedy of pre institution mediation in accordance with such manner and procedure as may be R.F.A. No. 018 M s Thomas Enterprises & Anr. vs. M s Yuksom Breweries Ltd. prescribed by rules made by the Central Government. The Central Government may by notification authorise authorities constituted under the Legal Services Authorities Act 1987for the purposes of pre institution mediation. The Authority authorized by the Central Government is required to complete the process of mediation within a period of three months from the date of application made by the plaintiff. This period could be extended for a further period of two months with the consent of the parties. A settlement arrived at is required to be reduced into writing and signed by the parties and the mediator. The settlement shall have the same status as if it is an arbitral award on agreed terms under sub section of Section 30 of the Arbitration and Conciliation Act 1996 dated 3rd July 2018 is a notification issued in exercise of the powers conferred under Section 12 A of the Act authorising the State Authority and the District Authority constituted under the LSA Act for the purposes of pre institution mediation and settlement under Chapter III A of the Act. Section 15(2) of the Act provides that all suits and applications including applications under the Arbitration Act relating to a commercial dispute of a specified value pending in any Civil Court in any District or area in respect of which a R.F.A. No. 018 M s Thomas Enterprises & Anr. vs. M s Yuksom Breweries Ltd. Commercial Court has been constituted shall be transferred to such Commercial Court. The Money Suit was filed before the learned District Judge in August 2016. At that time although the Act had been enforced the Commercial Courts had yet not been constituted. However after the constitution of the Commercial Courts in terms of Section 15(2) of the Act on 06.10.2016 the Money Suit was required to be transferred to the Commercial Court. This was apparently and admittedly not done. Resultantly the Money Suit was not dealt in the manner required under the Act. 10. An earnest glance of the Act makes it evident that commercial disputes are required to be dealt with as per the provisions of the Act. The procedure prescribed is different than how a Money Suit is dealt with under the Code of Civil Procedure 1908 mandates that the Commercial Court shall follow the provisions of the CPC as amended by the Act in the trial of a suit in respect of the commercial dispute. Section 16(3) provides that where any provision of any rule of the jurisdictional High Court or any amendment to the CPC by the State Government is R.F.A. No. 018 M s Thomas Enterprises & Anr. vs. M s Yuksom Breweries Ltd. in conflict with the provisions of the CPC as amended by the Act the provisions of the CPC as amended by the Act shall prevail. 11. Section 13 of the Act provides for appeals from decrees of Commercial Court and Commercial Division. The present Regular First Appeal has not been preferred under Section 13 of the Act but under Order XLI Rule 1 and 2 of CPC. Resultantly it was placed and considered by the learned Single Judge of this court although in terms of Section 5 of the Act and Notification No.27 HCS Judl. dated 20.08.2016 it ought to have been heard by a Division Bench. In terms of Section 15(2) of the Act after the constitution of the Commercial Courts in Sikkim the court of the learned District Judge which tried the Money Suit would have lost jurisdiction to try it as it related to a commercial dispute and ought to have been transferred to the jurisdictional Commercial Court which had been constituted. The failure of the learned District Judge to examine and transfer the Money Suit to the Commercial Court has resulted in defeating the very object of the enactment of the Act to provide for speedy disposal of high value commercial disputes. 13. We are thus of the considered view that the impugned judgment and decree dated 30.07.2018 passed by the learned District Judge in the Money Suit must be set aside and the R.F.A. No. 018 M s Thomas Enterprises & Anr. vs. M s Yuksom Breweries Ltd. Money Suit transferred to the files of the Commercial Court. The Money Suit shall then be tried by the Commercial Court as per the provisions of the Act. It is accordingly ordered. Pending application is also disposed. Bhaskar Raj Pradhan) Judge 01.11.2021 Judge 01.11.2021 Approved for reporting: yes. to Internet: yes.

In cases of compassionate appointment, the authorities must be sensitive and thoughtful: Bombay High Court

In cases of compassionate appointment, not only the authorities but also the tribunal is required to be more careful, sensitive and live to the human considerations and adopt a cautious approach before denying benefit under the compassionate appointment, provisions. A division bench of Justice Sunil P Deshmukh and Justice G S Kulkarni, while adjudicating the matter in Shri Nikhil Maruti Gosarde v. The District Collector, [WP 1071 of 2019]; dealt with the issue of the grounds for compassionate appointment. In the year 1985, petitioner’s father entered State Government service, as a Clerk in the Office of District Collector at Sangli. As stated before the tribunal, his entire service tenure was unblemished. By an order dated 11 June 2013, issued in favour of late Maruti, he was granted an ad-hoc promotion to the post of Election Naib Tahsildar (a Group B post) and was so posted at Mangalweda, District Solapur. On 7 December 2016, Maruti expired in harness, in an accident. A certificate was also issued by the Tehsil office, Mangalweda on 2 January, 2017, certifying that ‘late Maruti-Election Naib Tahsildar, expired while on duty’. Late Maruti left behind him, his legal heirs wife(widow), son (petitioner) and daughter (married daughter). As a consequence of the sudden death of the sole breadwinner, late Maruti’s family was left in a financial crisis, affecting their very livelihood. In an attempt to tide over such crisis, the petitioner being the only family member who could take up an employment, submitted an application with the respondents for compassionate appointment on the post of “a Clerk” in the office of respondent no.2. Such application was made on 23 December, 2016. Another dated 28 December, 2016, was submitted by him in the office of respondent no. 3-Divisional Commissioner (Revenue Camp) at Pune. Such application for compassionate appointment was made by the petitioner without delay and/or immediately after the death of his late father Maruti. Respondent no. 3, however, by a communication dated 20 January, 2017, rejected the petitioner’s application for compassionate appointment, recording that as his late father was promoted as ‘Election Naib Tahsildar’, which was on a Group ‘B’ post, as held by him at the time of his death, the petitioner was not eligible for compassionate appointment. The reason being, such appointment cannot be made when the employees who belong to Group ‘A’ and ‘B’ die in harness. Thus, the writ petition was filed by the aggrieved in the instant case.

on 15 06 2021 on 22 03 wp 1071 19.docIN THE HIGH COURT OF JUDICATURE AT BOMBAYCIVIL APPELLATE JURISDICTIONWRIT PETITION NO.1071 OF 2019Shri. Nikhil Maruti Gosarade)Age 31 years Occ. Nil )R o. ‘Shri Datta Kripa Banglow’ )Near Maheshwari Garden Mangal)Karyalaya New M.S.E.B. Dhamani)Road Vishrambag Sangli.)..PetitionerVersus1. The District Collector Sangli )Rajwada Chowk Sangli.)2. The District Collector Solapur)Solapur Tal. Mangalweda )Dist. Solapur)3. Division Commissioner)(Revenue) Sadhu Vaswani Council)Hall Pune Camp Pune Vidhan Bhavan)(Marathi) M.G. Road Pune.)..Respondents…..Mr.Abhijit Kulkarni i b Mr. Sachin Hande for Petitioner.Mr.Karan Thorat AGP for State.…..CORAM : SUNIL P. DESHMUKH &G. S. KULKARNI JJ.Reserved on : 5th MAY 2021 Pronounced on : 15th JUNE 2021.JUDGMENT:whereby thepetitioner’s Original Application No. 718 was rejected by thetribunal confirming an order dated 13 November 2017 passed byrespondent no.3 Divisional Commissionerrejecting thepetitioner’s application for compassionate appointment on a post fallingunder Class III.3.We note the relevant facts : In the year 1985 petitioner’s father Maruti GanpatGosaradeentered State Government service asa Clerk in the Office of District Collector at Sangli. As stated before thetribunal his entire service tenure was unblemished. By an order dated11 June 2013 issued in favour of late Maruti he was granted an ad hocpromotion to the post of Election Naib Tahsildarandwas so posted at Mangalweda District Solapur. On 7 December 2016 Maruti expired in harness in an accident. A certificate was alsoissued by the Tehsil office Mangalweda on 2 January 2017 certifying2 28 on 15 06 2021 on 22 03 wp 1071 19.docthat ‘late Maruti Election Naib Tahsildar expired while on duty’. 4.Late Maruti left behind him his legal heirs Smt.ShobhaMaruti Gosarade wife(widow) Mr.Nikhil Maruti Gosarade son(petitioner) and Sou. Nivedita Sachin Rajmane at Pune.Such application for compassionate appointment was made by thepetitioner without delay and or immediately after the death of his latefather Maruti. Respondent no. 3 however by a communication dated20 January 2017 rejected the petitioner’s application forcompassionate appointment recording that as his late father waspromoted as ‘Election Naib Tahsildar’ which was on a Group ‘B’ post asheld by him at the time of his death the petitioner was not eligible forcompassionate appointment. The reason being such appointment3 28 on 15 06 2021 on 22 03 wp 1071 19.doccannot be made when the employees who belong to Group ‘A’ and ‘B’ diein harness.5.The petitioner being aggrieved by such decision ofrespondent no. 3 approached the tribunal in Original Application no.5717. The tribunal by an order dated 18 September 2017disposed of the said proceedings whereby it quashed respondent no.3’sorder dated 20 January 2017 rejecting the petitioner’s application forcompassionate appointment and issued directions to the respondents todecide the case of the petitioner in the light of the decision of DivisionBench of the tribunal in the case of Shri Abhijeet Vishwas Mulik vs. TheDistrict Collector dated 18 February 2015 delivered in OriginalApplication No. 10912. The petitioner thereafter made furtherrepresentations dated 6 October 2017 14 October 2017 and 16October 2017 also enclosing therewith a copy of the tribunal’s order.6.By a fresh order dated 13 November 2017 passed byrespondent no.3 again petitioner’s application for compassionateappointment came to be rejected primarily on the same ground namely that the petitioner’s father at the time of his death was holding the postof Election Naib Tahsildar which was a Group ‘B’ post hence thepetitioner was not eligible for appointment on compassionate ground. 4 28 on 15 06 2021 on 22 03 wp 1071 19.doc7.Petitioner was of the firm opinion that it was notpermissible for respondent no. 3 to reject the petitioner’s application onthe same ground on which his application for compassionateappointment was earlier rejected on 20 January 2017. The petitionerhence filed a Contempt Petition before the tribunal however the samewas permitted to be withdrawn to enable him to file a substantiveoriginal application before the tribunal so as to challenge the freshdecision of respondent no.3 dated 13 November 2017. The petitioner accordingly filed the original application in question interalia prayingfor setting aside of the said order dated 13 November 2017 passed byrespondent no. 3 rejecting the petitioner’s application for compassionateappointment. He made a further prayer that a direction be issued to therespondents to grant appointment to the petitioner on a Class III post ofClerk Talati on compassionate ground.8.Case before the tribunal: The petitioner contended that the reason for rejection of hisapplication for compassionate appointment namely that the petitioner’sfather was working on a Group ‘B’ post was not only wholly erroneousand illegal but was also contrary to the record. He contended that hisfather late Maruti substantively belonged to a non gazetted post in5 28 on 15 06 2021 on 22 03 wp 1071 19.docGroup ‘C’ as he was promoted as Election Naib Tahsildar purely on ad hoc basis which was ex facie clear from the promotion order dated 11June 2013 issued to him. He contended that as the promotion grantedto his late father was not a regular promotion but a mere ad hocpromotion there was no vested right in the petitioner’s father toregularly hold the said promotional post in the absence of a regularpromotion order. The petitioner contended that also the ad hocpromotion order dated 11 June 2013 issued to his late father did notrefer to any pay scale in which the salary could be drawn. Hecontended that the specific conditions as set out in the said promotionorder for the ad hoc promotion to be regularised never materialized.According to the petitioner the cumulative effect of all such factors necessarily is to the effect that the petitioner’s father at the time of hisdeath was holding a post and or was an employee in the Group ‘C’cadre. The petitioner hence contended that he was entitled to claim acompassionate appointment in the Group ‘C’ post. In the alternative the petitioner also contended that the post of Naib Tahsildar was not agazetted post as also seen from the promotion order. The petitioneralso contended that as observed by the tribunal the petitioner’s casewas fully covered by the decision of the tribunal in Shri AbhijeetVishwas Mulik case which has been completely overlooked and or givena go by by respondent no.3 although there was a specific direction to6 28 on 15 06 2021 on 22 03 wp 1071 19.docthat effect in the earlier order passed by the tribunal on the petitioner’soriginal application. Although there were other grounds of challenge we need not detail them having already set out the principal grounds as asserted by the petitioner. 9.Respondent no.3 contested the original application by filinga reply affidavit of Dagadu Sukhdev Khumbar working as Tahsildar(Revenue) in the office of Divisional Commissioner Pune Division Pune. As to how a Tahsildar could file an affidavit when the decisionwas taken by respondent no.3 is another question as at least from therecord we do not find anything which precluded respondent no.3 to filean affidavit to justify his decision. Be that as it may by the affidavit itwas interalia contended that the petitioner’s father belonged to Group‘B’ post of Naib Tahsildar as the general promotion order dated 11June 2013 for certain names(which included thepetitioner’s father at Serial No.7) specifically set out that suchcandidates were promoted on regular basis. It was contended that asper Government Resolution dated 13 November 1998 the post of NaibTahsildar was declared as Group ‘B’ post. While dealing with thepetitioner’s contention that it was only an ad hoc promotion grantedvide promotion order dated 11 June 2013 issued in favour ofpetitioner’s late father the respondent’s case was that the petitioner’s7 28 on 15 06 2021 on 22 03 wp 1071 19.doclate father was granted temporary ad hoc promotion for 11 months asper the routine procedure and for the reason that petitioner’s fatherwas not reverted back to the Group ‘C’ post after 11 months it ought tobe presumed that he was holding a Group B post. It was furthercontended that the petitioner’s father also availed all benefits of aGroup ‘B’ officer w.e.f. 1 January 2010namely that a contribution of Rs.480 per month was deductedtowards the group insurance benefit which was also availed by hisfamily. On the petitioner’s case that relief be granted to him relying onAbhijeet Vishwas Mulik’s case(supra) as directed by the tribunal in itsprevious order the reply was nothing short of accepting such plea of thepetitioner. The peculiar reply was that although Abhijeet’s case wassimilar to the petitioner’s case however in the said case the tribunal’sorder was challenged before this Court in Writ PetitionNo. 1820 of2018 and the directions of the High Court to comply with tribunal’sorder were accepted.Tribunal’s Order : 10.Considering the rival contentions the tribunal rejected thepetitioner’s original application. The fulcrum of the tribunal’s reasoningbeing that the petitioner’s late father was a Group ‘B’ officer for the8 28 on 15 06 2021 on 22 03 wp 1071 19.docreasons interalia as set out in paragraphs 18 to 20 which read thus:“18.Perusal of the record produced by the Respondent No.3 shows asunder:(a)The deceased was considered during the meeting of the DPCon 10.09.2012. The Minutes of the Meeting identified 26vacant posts and proposed names of Awal Karkun andMandal Adhikari to the rank of Naib Tahasildar.(b)According to the same the deceased was promoted onregular post and his name figures at Serial No.31.(c)He has been promoted and was drawing the salary in the newpay scale of Rs.9300 34800 with grade pay of Rs.4300 fromthe date of his promotion till his expiry. His last basic salarywas Rs.13989 + 4500 . His total period in this particularpay scale was for more than four years on a continuous basiswithout any break till be expired. He has also been given theGroup Insurance available to Group ‘B’ category.19.Available record confirms that the deceased was workingas Naib Tahasildar in the pay scale of Rs.9300 34800 with Rs.400 as grade pay. He received the Group Insurance amount ofRs.4 80 000 .20.For the reasons above stated it is clear that the deceasedGovernment servant was Group ‘B’ officer. The G.R. dated 22nd August 2005 states that the legal heirs of Group ‘C’ and Group ‘D’ are entitled forcompassionate appointment. The prayer made by the applicant toconsider him for the compassionate appointment is therefore rejected.The Original Application is dismissed with no order as to costs.”SUBMISSIONS11.Mr.Kulkarni learned counsel for the petitioner in assailingthe impugned order would submit that the very foundation of thetribunal’s reasoning to hold that the petitioner’s late father was a GroupB employee is wholly contrary to the record hence perverse. It issubmitted that it was ex facie clear from the promotion order dated 11June 2013 as issued to the petitioner’s late father that the promotion9 28 on 15 06 2021 on 22 03 wp 1071 19.docgranted to him to the post of Election Naib Tehsildar was an ad hocpromotion as clause 4(1) of the promotion order recorded that thepromotion was merely of a temporary nature for 11 months or till theexpiry of the period of supernumerary post of the candidates sponsoredby the Maharashtra Public Service Commission or till the retirement ofthe concerned employee whichever occurs earlier. It is submitted thatthe ad hoc nature of the promotion was also clear from Clause 4(4) ofthe promotion order which recorded that the said promotion is beinggranted subject to the final approval of the Maharashtra Public ServiceCommission to the regular select list. According to Mr.Kulkarni suchclauses in the promotion order could not have been ignored by thetribunal to hold that the petitioner’s late father was regularly promotedto record a finding that he was holding a post in Group ‘B’ at the time ofhis death. It is next submitted that the ad hoc nature of the promotionorder could also be clearly seen from the fact that it did not specify anypay scale. He submits that mere receipt of the salary in the pay scale ofthe said promotional post could not have resulted into an automaticconferring of a regular promotion in the Group ‘B’ post. It is submittedthat there was no order or any other material on record which wouldshow that the effect of the ad hoc promotional order dated 11 June2013 issued to the petitioner’s late father stood obliterated and orsubstituted by a regular promotion order. It is next submitted that the10 28 on 15 06 2021 on 22 03 wp 1071 19.docrespondents reliance on the general promotion orderto contend that as the petitioner’s late father was placed at serialno.7 under the heading “regular promotion” he was regularlypromoted was also misconceived and contrary to the very document inasmuch as in clause 4(1) and 4(4) of the said order itself providedthat the promotion was purely on temporary basis for a period of 11months or till the expiry of the period of supernumerary post of thecandidates sponsored by the Maharashtra Public Service Commission ortill the retirement of the concerned employee whichever occurs earlier.It is submitted that identical conditions were incorporated in theindividual ad hoc promotion order dated 11 June 2013 issued to thepetitioner’s late father. Mr.Kulkarni would submit that in the absence ofany regular promotion order issued to him the petitioner’s fatheralthough was granted an ad hoc promotion to the Group B post hecontinued to belong to the Group ‘C’ and not in Group ‘B’ post. Hewould hence submit that the petitioner was entitled to apply for acompassionate appointment in the Group ‘C’ post. As regards thejudgment of the Division Bench of the tribunal in Shri.Abhijeet VishwasMulikthe tribunal has correctlyobserved that a regular promotional exercise which was undertaken bythe respondents to promote the petitioner’s late father on the Group ‘B’post of Naib Tahasildar. It is submitted that even the pay scale whichwas drawn by the petitioner’s late father was of the promotional post as also the group insurance facility came to be availed by him and thebenefits of the same were granted to the petitioner’s family. It is next12 28 on 15 06 2021 on 22 03 wp 1071 19.docsubmitted that the petitioner’s case cannot be compared with AbhijeetVishwas Mulik’scase as in the said case only because this Courthad confirmed the orders passed by the tribunal holding that thedeceased was granted ad hoc promotion as Naib Tahasildar the benefitwas granted to the applicant therein. Mr.Thorat however would notdispute that there is no material to indicate that the ad hoc promotionorder dated 11 June 2013 issued to the petitioner’s father was neithersubstituted nor was confirmed by issuance of a regular promotionalorder. He would also not dispute that clauses 4(1) and 4(4) of the saidpromotion order clearly provided that the promotion was purely on ad hoc basis. He would also not dispute that even the general promotionorder dated 11 June 2013 had also incorporated clauses at the bottomof the list without making exception to any names referred to in the list to record that the promotions were purely ad hoc basis. He would alsonot dispute that the wordings of clause 4(1) and 4(4) of the saidgeneral order indicating adhoc promotion were identical to the oneincorporated in the individual promotion order issued in favour of thepetitioner’s late father.Reasons and Conclusion13.Having heard learned counsel for the parties and havingperused the record we may at the outset observe that the petitioner’s13 28 on 15 06 2021 on 22 03 wp 1071 19.docfather Maruti Gosarade died in harness on 7 December 2016 andimmediately after his passing away the petitioner made an applicationon 22 December 2016 for appointment on compassionate ground. Suchapplication suffered its first rejection at the hands of respondent No.3on 20 January 2017 on the ground that the petitioner’s late fatherbeing a government servant in the Group ‘B’ categorythe petitioner would not be eligible to apply for compassionateappointment as an appointment on compassionate ground ispermissible only of an eligible family member of a Group ‘C’ and ‘D’employee who dies in harness. Such reason as set out in the saidPune Division reads thus: “As per information given by you by the letter under reference Maruti Ganpati Gosrade expired on the date 07 12 2006 in accident while working at Election Nayab Tahasildar Mangalvedha Dist.Solapur. It is requested to give appointment on compassionate groundto Shri. Nikhil Maruti Gosrade by the letter under reference. However as per the Government Resolution No. 1004 M.No.51 2004 Eight dated 22 08 2005 the appointment on compassionate ground isadmissible only to the eligible family members of Group C and D employees only who have expired during service. As Late MarutiGanpati Gosrade was working as Election Nayab Tahasildar and as theNayab Tahasildar cadre belongs to Group B you request can not begranted. 14 28(Signature Illigible)(Sudhakar Telang)Deputy Commissionerwith a further direction that a fresh decisionbe taken by respondent No.3 in the light of the tribunal’s decision in thecase Shri. Abhijeet V. Mulik versus the Collector of Kolhapur. Thetribunal’s order in the present facts has a significant relevance requiringit to be noted. It reads thus: “Heard Mr.M.B.Kadam the learned Advocate for the Applicantand Ms.N.G.Gohad the learned Presenting Officer for theRespondents.This OA brought by the heirs and LRs of the deceased NaibTahasildar can be disposed of here and now.The Applicant is the son of the said deceased. The saiddeceased died on 7th December 2016. The reason why the request forenlisting his name came to be rejected was vide Exh.’F’and the ground was that he was a Group ‘B’ Officer(Non gazetted) while the said entitlement is only to the heirs and LRsof Group ‘C’ and Group ‘D’ employees. After some debate at the Barwhere my attention was invited to a Judgment rendered by thisTribunal presided over by me in OA 1008 2016and in order to facilitate the said Respondent to proceed inthe matter in accordance herewith Exh.’F’ dated 20.1.2017stands quashed and set aside. Compliance within eight weeksfrom today and the Applicant be informed of its outcome within one15 28 on 15 06 2021 on 22 03 wp 1071 19.docweek thereafter. The OA is allowed in these terms with no order as tocosts.”15.Perusal of the above order of the tribunal clearly indicatesthat the tribunal noted that the only ground on which the request of thepetitioner was turned down by respondent no.3 was on account of thefact that the petitioner’s late father was a Group ‘B’ officer on the basisof the promotion order issued to him on 11 June 2013 which was in factan order granting ad hoc promotion. The petitioner had categoricallycontended that promotion of his late father was an ad hoc promotion.He also contended that the tribunal had considered a similar case indeciding the application filed by Abhijeet Vishwas Mulikhence his case was squarely covered by such decision. It is in thesecircumstances the tribunal disposed of the original application with adirection to the respondent to consider such facts and that a decision betaken considering Abhijeet Vishwas Mulik’s caseand take a decisionand accordingly quashed the order impugned therein dated 20 January2017by the16 28 on 15 06 2021 on 22 03 wp 1071 19.docimpugned order dated 13 November 2017 issued by respondent no. 3 Divisional Commissioner Pune Division Pune surprisingly on identicalreasons as contained in the first rejection which in fact were set asideby the tribunal by its order passed on the petitioner’s first originalapplication. The said order reads thus:Letter bearing No. Rev. Estt. 3 WS 31 2017 dated20.01.2017 of this Office.2) Decision dated 18.09.2017 given in the Original Application No.574 2017 filed before the Hon ble Maharashtra AdministrativeTribunal.3) Applications dated 06.10.2017 14.10.2017 and 16.10.2017 madeby Shri Nikhil Maruti Gosrade residing at New M.S.C.B. DhamaniRoad Dutt Kripa Bungalow Near Maheshwari Garden MangalKrayalaya Sangli.ORDER:On the date 18.09.2017 the Hon ble Tribunal has givenfollowing decision in the Original Application No. 574 2017 filedbefore the Maharashtra Administrative Tribunal by Shri. Nikhil MarutiGosrade against the reply given by this office under the letter dated20 01 2017 referred to at Sr. No. 1 in the preface.The Original Application No. 1008 2016 has been allowed.The Hon ble Tribunal has directed that the decision in the matter of theApplicant should be taken as per the instructions dated 18.07.2017given in the matter viz. Shri. Abhijeet V. Mulik versus the Collector ofKolhapur mentioned therein and has cancelled the letter dated20.1.2017 of this Office referred to at Sr. No. 1 in the Preface. In pursuance of the said decision on the dates 06.10.2017 14.102017 and 16.10.2017 Shri. Nikhil Maruti Gosrade has madeapplications to this Office and has requested therein to take an actionto give an appointment on compassionate basis as per the decision17 28Office of the Divisional Commissioner Pune Division Vidhan Bhavan Pune.No. Rev. Estt. 3 S.R. 18 Pune Date: 13.11.2017 on 15 06 2021 on 22 03 wp 1071 19.docgiven by the Hon ble Maharashtra Administrative Tribunal.While granting promotion to Late M.G. Gosrade in N.T. Cadreunder this Office Order dated 11.06.2013 it has been mentionedtherein that the said promotion shall be for the period of 11 months ortill expiry of the period of most of the posts of the candidatessponsored by the Maharashtra Public Service Commission or tillretirement of the persons concerned whichever is earlier. M. G.Gosrade expired on the date 07.12.2016 and prior to that he wasworking on the post of Nayab Tahasildar.As per the Government Resolution Revenue and ForestDepartment No. RCT 1095 M. No. 230 E 7 dated 13 11 1998 it hasbeen notified for giving the status as Gazetted Officer Group B to allthe posts in Nayab Tahasildar Cadre. Therefore prior to death Late.Gosrade was the Gazetted Officer Group B in the Nayab TahasildarCadre.By the Government Resolution Finance Department dated2 8 2010 Changes have been made from the date 1 1 2010 in therate of monthly Contribution of the State Government EmployeesGroup Insurance Scheme and the benefits to be received therefrom. Asper the said Government Resolution it has been fixed to recover thecontribution of amount of Rs. 480 from the monthly salary of theConcerned officer from the date 0101 2010 for Group ‘B’. Accordingly if the contributor in this Scheme dies while being in GovernmentService the insurance amount to be paid to the family members hasbeen fixed as Rs. 4 80 000 and accordingly the insurance amount ofRs. 4 80 000 has been paid to the heirs of Late Gosrade on the date29 12 2016. Thus he has been given the benefit to be received forthe post of Nayab Tahasildar Gazetted Officer Group ‘B’.In the decision given on the date 18 9 2017 by the Hon’bleTribunal in the matter of Original Application No. 574 2017 it hasbeen mentioned that the decision in the matter of Shri. Nikhil Gosradeshould be taken in pursuance of the instructions given in OriginalApplication No. 1008 2016and 4(4) of the promotionalorder issued to the petitioner’s father. The official translation of clauses4(1) and 4(4) reads thus: “04.Terms and Conditions in respect of promotion.1)This promotion list is merely of temporary nature. Thepromotion of the employees in the Ad hoc promotion list shall be for11 months or till the expiry of the period of supernumerary post of thecandidates sponsored by the Maharashtra Public Service Commissionor till the retirement of the concerned employee whichever occursearlier.… .. .. 4)The said promotion is being given subject to the final approvalof the Maharashtra Public Service Commission to the regular selectlist.”The above clauses identically appeared in the general promotionorder dated 11 June 2013.19.It is thus difficult to fathom as to how such specific clausesappearing in the said promotional order issued in favour of thepetitioner’s late father as also contained in the general promotionorder issued on 11 June 2013 could be discarded by the tribunal. Toread the general promotion order dated 11 June 2013 conferringregular promotion to the petitioner’s late father also cannot be acceptedfor two reasons firstly for the reason that it contained Clauses 4.1 and4.4 which were applicable to all categories of candidates whose names20 28 on 15 06 2021 on 22 03 wp 1071 19.docwere specified in the said order which showed that the promotionsmade by such order were purely ad hoc. Secondly although suchgeneral promotion order was issued however a specific promotionorder of the even date was issued in favour of the petitioner’s latefather incorporating Clauses 4.1 and 4.4which unequivocallyindicated that the promotion as granted to the petitioner’s late fatherwas ad hoc and not a regular promotion. Most significantly it was thisorder of ad hoc promotion which was acted upon for all materialpurposes as clear from the record. Thus merely categorizing petitioner’slate father under the heading ‘regular promotion’ in the secondpromotion order was not sufficient to hold that he was regularlypromoted. The general promotion order was required to be read in itsentirety alongwith its clauses which indicated that the entirepromotions as made therein by the said order were ad hoc. We also findthat there is no material whatsoever on record as also fairly concededby the learned AGP that the ad hoc promotional orderwas never substituted by issuance of a regular promotionalorder. It is also not in dispute that the name of petitioner’s late fatherqua such promotion was never notified in any final list of regularlypromoted candidates which would show that in reality he was neversubstantively promoted to the Group ‘B’ post and was kept as an ad hocpromotee. Merely providing a pay scale of a higher post without a21 28 on 15 06 2021 on 22 03 wp 1071 19.docregular promotion would not bring about a situation that the legalcharacter of an ad hoc promotion order would get transformed into a‘regular promotional order’. In other words in the present case unlessthere was to be a conscious act or a decision in law to regularlypromote by issuance of a regular promotion order in favour ofpetitioner’s late father by no stretch of imagination and or by applyingany standard it could have been held that the ad hoc promotion stoodconverted into a regular promotion. In regard to the emoluments thelaw would require that if an employee is posted on a particular posteven temporarily or ad hoc he would be entitled to draw the pay scaleand benefits of such post till he continues to hold such post on theprinciple of equal pay for equal work. The petitioner’s late father beingpaid the salary or the pay scale of Naib Tahasildar could not have beenany indicia of his regular promotion to the post of Naib Tahasildar inthe absence of a regular promotional order issued in his favour. Thetribunal has completely ignored these basic facets by inappropriatelyconstruing the ad hoc promotional order as issued to petitioner’s latefather to be a regular promotion.20.In our clear opinion the tribunal’s interpretation of the ad hoc promotional order dated 11 June 2013 results in attributing adifferent meaning from what was actually provided by Clauses 4(1) and22 28 on 15 06 2021 on 22 03 wp 1071 19.doc4(4) of the said promotional order amounting to a patent perversity.This is thus a case wherein respondent no.3 for reasons best known tohim completely misconstrued and misinterpreted the promotion orderdated 11 June 2013 by reading it to be a regular promotion beinggranted to the petitioner’s late father. The tribunal could not havemechanically and or without applying its mind to the plain and clearmeaning of the said clauses of the promotional order dated 11 June2013 confirmed such decision of respondent no. 3. The judicial burdenand responsibility on the tribunal was certainly rigorous andinsurmountable when the petitioner knocked its door complaining ofbrazen arbitrariness of respondent no.3.21.There is yet another significant aspect of the matter namelythat in the earlier order passed by the tribunal on the first originalapplication filed by the petitioner there was a clear direction to therespondents to consider the petitioner’s case as per the decision inAbhijeet Vishwas Mulik case. The tribunal had also set aside the veryreasoning as contained in the order communication dated 20 January2017in rejecting the petitioner’s application for compassionateappointment. In this regard we may observe that the reasoning as setout in the penultimate paragraph of respondent no.3’s order dated 13November 2017 in no manner amounted to compliance of the said23 28 on 15 06 2021 on 22 03 wp 1071 19.docdirections of the tribunal on the petitioner’s first original application.This for the reason that respondent no.3 on the same reasoning ascontained in the earlier order dated 20 January 2017 on completelyirrelevant considerations as also without application of mind and intotal disregard to the tribunal order for the second time rejected thepetitioner’s application. In our opinion the tribunal was also too casual in not interfering with the absolute mechanical and careless approach ofrespondent no.3 in issuing an order dated 13 November 2017. Theimpugned order passed by the tribunal could not have sustained suchillegality of respondent no.3. We thus feel that the petitioner was notwell advised to withdraw the contempt petition as in our clear opinion the order dated 13 November 2017 passed by the respondent no.3certainly did not comply with the tribunal’s direction and its clear andabsolute mandate namely that the petitioner’s application be decided inthe light of the observations of the Division Bench in Abhijeet VishwasMulik case which was confirmed by the Division Bench of this Court.From a reading of the penultimate paragraph of respondent no.3’sdecision dated 13 November 2017 a glaring perversity and disrespectby respondent no.3 to the tribunal’s order is apparent which ought tohave been severely deprecated by the tribunal. The reasons as set out byrespondent no.3 in the impugned rejection of the petitioner’sapplication are certainly of a nature which would shock the conscience24 28 on 15 06 2021 on 22 03 wp 1071 19.docof the Court when respondent no.3 in the penultimate paragraphalthough acknowledges that the tribunal had directed that thepetitioner’s application be decided as per the directions in Abhijit V.Mulik casehowever at the same time he brushes aside thesame saying that it is being challenged before the High Court. Inrespondent no.3 saying so in our opinion there are two aspects whichcannot be overlooked and or are required to be judicially noticed.Firstly what is apparent is the patent disregard shown by respondentno.3 to the orders passed by the tribunal and secondly a supposedlyclever manner and or a sharp practice adopted by respondent no. 3 towriggle out of the order of the tribunal on patently irrelevant orsenseless reasoning. Such approach was least expected from a highofficial who stood at the level of Divisional Commissioner that too inhandling a delicate issue namely of compassionate appointment. Suchobjectionable conduct on the part of the Divisional Commissioneramounted to playing with the livelihood of the petitioner’s family. Suchaspect has been completely overlooked by the tribunal in passing theimpugned order. We in fact wonder whether we should reopen thecontempt proceedings against respondent no. 3 when we have noticedthat the conduct of respondent no. 3 prima facie amounted to becontumacious. We however leave the issue at this. 25 28 on 15 06 2021 on 22 03 wp 1071 19.doc22.Now coming to the tribunal’s order in our opinion thetribunal ought to have followed the decision of the tribunal in the caseof Abhijeet Vishwas Mulikwhich was a case exactly similar tothe present case. This more particularly when the Division Bench of thisCourt in its judgment in Abhijeet Vishwas Mulikreferring to adecision of Aurangabad Bench of this Court in Dinesh s o ShamraoSonawane Versus The State of Maharashtra in Writ Petition No.5440 of2009 dated 5 February 2010 had held that an ad hoc and temporarypromotion does not entitle the promotee to claim status as Group ‘B’employee. This Court held that the original applicant’s late father inthe said case who had substantively held a Group ‘C’ post waspromoted purely on temporary basis for three months to a Group ‘B’post of Naib Tahasildar which was seen from the promotional order asappropriately recognized by the tribunal. It was observed that the verywording of the ad hoc promotional order itself was clear that it entailedautomatic termination after a certain period and it was subject to theapproval of the Maharashtra Public Service Commission. This Courthad also held that the tribunal was right in holding that the father ofthe original applicant thereinwasnot a Group ‘B’ employee in terms of the Government Resolution dated28 March 2001 and hence there was no bar to the consideration of thecase of the said respondent for appointment on compassionate basis.26 28 on 15 06 2021 on 22 03 wp 1071 19.docAs observed above in our opinion the petitioner was identically placedas in the case of Abhijeet Vishwas Mulik(SUNIL P. DESHMUKH)28 28

A.Venkatesan V/S State Information Commissioner & Ors.

“One of the first principles of law with regard to the effect of an enabling act is that a legislature enables something to be done, it gives power at the same time by necessary implication to do everything which is indispensable for the purpose of carrying out the purpose in view.” New India Assurance Co., Ltd., had received notice in a proceeding before the Motor Accidents Claims Tribunal claiming compensation for the victim in an accident involving the vehicle bearing Registration No. TN-07-A5 6214 said to have been insured with it.The services of the Petitioner was engaged as ‘investigator’ by the Sixth Respondent to collect copies of the documents relating that accident and the vehicle involved from the concerned persons including the police authorities.The erstwhile practice followed had been that such investigators engaged by the insurers would collect copies of the required documents from the concerned persons and police authorities and submit their investigation report for enabling the insurers to effectively conduct the proceedings before the Motor Accident Claims TribunalISSUE BEFORE THE COURT:Whether the provisions of the Right to Information Act, 2005, could be invoked for obtaining documents from police authorities in connection with defending a claim for compensation before the Motor Accidents Claims Tribunal constituted under the Motor Vehicles Act, 1988?Whether an ‘investigator’ appointed by an insurer is empowered to correspond with public authorities and/or prosecute litigation relating to furnishing of documents in connection with an accident involving a vehicle said to be insured with that insurer?What is the legal remedy available to an insurer when documents required from police authorities in connection with an accident involving a vehicle said to be insured with it have not been furnished? RATIO OF THE COURT:The court held that it must also be recapitulated here that the liability of an insurer to meet a claim for compensation made by a third party arising out of an accident caused by use of a motor vehicle insured with it emanates from the Motor Vehicles Act, 1988, which law has also created the exclusive forum of Motor Accidents Claims Tribunal to adjudicate the same. In that statute, Chapter XI containing Sections 145 to 164 relates to ‘Insurance of Motor Vehicles against Third Party Risks’ and Chapter XII containing Sections 165 to 176 relates to ‘Claims Tribunal’. It could be inferred from Sections 158(6) and 160 of that enactment read with Rule 150 of the Central Motor Vehicles Rules, 1989, that there is an entitlement, as of right, conferred on the insurer to be furnished with particulars required of the vehicle said to have been insured with it and of the accident in which it is reported to be involved, by the concerned police authorities, and that would necessarily also mean supplying copies of relevant documents in proof thereof.The Hon’ble Supreme Court of India in General Insurance Council v. State of Andhra Pradesh [(2007) 12 SCC 354] and the Division Bench of this Court in United India Insurance Co., Ltd. v. R. Venkatesan (2003-1-L.W. 31) have reiterated that the statutory obligations on the police authorities in terms of the said provisions is mandatory and has to be forthwith complied on occurrence of accident involving the motor vehicle without brooking any delay.This Court in Cholamandalam MS General Insurance Co., Ltd. v. Inspector of Police, Cuddalore (Order dated 12.09.2017 in Crl.O.P. No. 18110 of 2016) has declared that that the hosting of the required documents in the CCTNS portal of the Police Department in the internet is the online version of carrying out that statutory obligation by the police authorities in the State of Tamil Nadu and it is precisely for that reason, the requirement of furnishing manual copies of those documents to the Motor Accidents Claims Tribunals and insurers has been done away, upon having meticulously verified that access to that facility has been made available to them, and that aspect has also been expressly recorded in that decision. In other words, it follows that there is definitely a functional system in place as on date in the digitalized mode for the police authorities to discharge their obligations to the insurers in terms of Sections 158(6) and 160 of the Motor Vehicles Act, 1988. The court stated that when a particular statute provides for access to information by prescribing a procedure in that regard, the provisions of the Right to Information Act, 2005, shall not be invoked for the same purpose and that the overriding effect in Section 31 of the Right to Information Act, 2005, cannot have any application in the absence of inherent inconsistency between that enactment and the other law. Another facet of the matter, which has relevance to the dispute involved in this case, as pointed out in that decision, is that Section 8(1)(j) of the Right to Information Act, 2005, excludes disclosure of personal information which (i) has no relationship to any public interest or activity; or (ii) would cause unwarranted invasion of the privacy of the individual. It is beyond cavil that the documents required by the insurer from the police authorities regarding the accident and the vehicle involved undoubtedly pertain to personal information either of the victim or the vehicle owner which would fall under that exception.It may also be remembered here that a Nine Judge Bench of the Hon’ble Supreme Court of India in K.S. Puttaswamy v. Union of India [(2017) 10 SCC 1] has in no unmistakable terms recognized that the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution. Viewed from that perspective, it must be held that when the right has been created for the insurer to obtain the required documents from the police authorities in a certain way under the Motor Vehicles Act, 1988, such right must be exercised only in that way and that other modes (including invocation of the provisions of the Right to Information Act, 2005) for seeking that relief, stand necessarily forbidden.Then the court held on the locus standi of an investigator, like the Petitioner in this case, to correspond with police authorities and prosecute litigation relating to the documents required by the insurer. It is axiomatic that the relationship between an insurer and an investigator appointed by that insurer to collect documents and make enquiries regarding the accident involving the vehicle said to have been insured with that insurer, is simply that of principal and agent.It is an elementary principle of law that an agent, in his own personal capacity, cannot enforce the rights of his principal as against third persons and at best, he can act or represent on behalf of his principal for that purpose depending upon the extent of his authority in that regard, but that would not, by any stretch of imagination, entitle the agent to act independent of his disclosed principal. It cannot be forgotten here that the insurer collects funds from the public as vehicle owners in the form of insurance premia for meeting the claims for compensation arising out of motor accidents in pursuance of the requirement imposed by law. As a corollary, the role of the insurer in defending third party claims arising out of motor accidents is that of a trustee of public funds and as such, it is one of the essential duties required to be performed by the hierarchy of officials in the organizational structure of the insurer, which responsibility ought not to be abdicated by ingenious methods of outsourcing those functions to freelancers appointed as investigators under the ruse of lack of manpower. It is, no doubt, true that in the absence of any prohibition, the hiring of services of individuals on contract basis for carrying out specific tasks of a business entity due to exigencies would be permissible for supplementing the performance of work, but that arrangement cannot lead to absurd consequences of supplanting the essential functions of the insurer itself.It is probably in that factual backdrop, the right of access to the CCTNS portal has been thoughtfully restricted only to stakeholders (which undoubtedly includes the insurer) on payment of prescribed fee, and it cannot be carped that there is no provision for other intermeddlers, who are in no way connected with it, for using that facility, as it is likely to otherwise cause invasion of the privacy of the victims and the vehicle owners by misuse of their personal information. That being so, it is really inconceivable as to how the Petitioner in this case could independently assert rights against the police authorities to produce documents required by the Sixth Respondent and further prosecute this Writ Petition in his personal capacity for such object.The court observed that when an application for that purpose is made by an insurer in a pending Claim Petition for compensation, it is incumbent upon that Motor Accidents Claims Tribunal to expeditiously consider the same and pass appropriate orders thereon in accordance with law. If found necessary, the Motor Accidents Claims Tribunal may by recording reasons in writing also extend time to the insurer to file counter or defer the conduct of trial till the required document is actually produced, on case to case basis, having due regard to its material nature and relevancy, bearing in mind the salutary intention that the ends of justice has to be secured for comprehensive and meaningful adjudication of the matter ultimately. The orders passed by the Motor Accidents Claims Tribunal on such application made by an insurer, would certainly be amenable to the superintending jurisdiction of this Court under Article 227 of the Constitution.When such efficacious mechanism exists in the statutory provisions, it is hard to believe that the insurer is helpless when the required documents are not uploaded in time in the CCTNS portal of the Police Department in the internet, as sought to be portrayed by the Petitioner in this case. DECISION HELD BY COURT: At last the court stated that where the concerned police officer, without justifiable cause, fails to promptly comply with an order passed by the Motor Accidents Claims Tribunal to produce the document required by an insurer in terms of Sections 158(6) and 160 of the Motor Vehicles Act, 1988, or does not respond to the direction issued by the Nodal Officer for uploading such document in the CCTNS portal of the Police Department, he shall be liable for disciplinary action as per rules.Hence, the Director General of Police, Tamil Nadu, is directed to issue a circular in this regard along with a copy of this order to all the concerned Police Officers in the State of Tamil Nadu requiring strict compliance of their statutory obligations mentioned supra, and also send copies of the same to the insurance companies which have been registered with the CCTNS portal of the Police Department for availing the online facility for downloading required documents.The Registry of this Court, after obtaining necessary orders from the Hon’ble Chief Justice, shall also communicate copy of this order to all the Presiding Officers of the Motor Accidents Claims Tribunals in Tamil Nadu and Puducherry for apprising the legal position enunciated in this order. In the upshot, the Writ Petition is dismissed. No costs.

W.P. No. 102319IN THE HIGH COURT OF JUDICATURE AT MADRASRESERVED ON: 30.08.2019PRONOUNCED ON: 01.06.2020CORAMTHE HONOURABLE MR. JUSTICE P.D. AUDIKESAVALUW.P. No. 102319A. Venkatesan ... Petitioner vs 1. The State Information Commissioner Tamil Nadu Information Commission No. 2 Sir Thiyagarayar Road Eldams Road Junction Theynampet Chennai 600 018.2. The Superintendent of Police 1st Appellate Authority Tiruppur District.3. The Public Information Officer Additional Superintendent of Police Police Head Office Tiruppur District.4. The Deputy Superintendent of Police Udumalpet Sub Division Tiruppur District.5. The Inspector of Police Thali Police Station Tiruppur District.6. The Branch Manager New India Assurance Company Ltd. Amman Complex Erode 11. ... Respondents1 22 n W.P. No. 102319PRAYER: Writ Petition filed under Article 226 of the Constitution of India 1950 praying to issue a Writ of Certiorarified Mandamus calling for the records relating to the impugned order passed by the Second Respondent vide his office Proceedings No. Na. Ka. No. 02 AP Tha.A.U.Sa Me.Mu.A.thi 18 dated 15.03.2019 by enclosing letter of the Third Respodent vide his office Proceedings No. C. No. 02 RTI SDO Udt 2019 dated 11.03.2019 who in turn enclosing the letter of the Fifth Respondent vide his office proceedings No. C. No. 18 RTI UDT PS 19 dated 10.03.2019 rejecting the appeal filed by the Petitioner dated 19.02.2019 and confirming the impugned order passed by the Third Respondent vide his office Proceedings No. Na. Ka. No. 71 19 Tha.A.U.Sa Po.Tha.A.Thi.Ma 19 dated 13.02.2019 and quash the same and consequently direct the Second to Fifth Respondents to furnish the documents as per the application of the Petitioner dated 28.01.2019 to the Petitioner within the time fixed by this Court. For Petitioner: Mr. I.C. VasudevanFor Respondents: Mr. Niranjan RajagopalanMr. R. Venkatesh Government AdvocateMr. K.Thirunavukkarasu3 22 n W.P. No. 102319regime from 01.03.2017 onwards in the State of Tamil Nadu as approved by this Court in Cholamandalam MS General Insurance Co. Ltd. vs Inspector of Police Cuddalorefollowing the directions issued by the Hon’ble Supreme Court of India in Jai Prakash vs National Insurance Co. Ltd. No. 11801 118005) the practice of furnishing manual copies of the documents by the Police Authorities has been dispensed with as the stake holders can download copies of those documents from the Crime and Criminal Tracking Network Systemportal of the Police Department in the internet. According to the Petitioner most of the documents required by the Sixth Respondent had not been hosted in the CCTNS portal of the Police Department in the internet which necessitated the Petitioner to make application dated 28.01.2019 to the police authorities who are the Second to Fifth Respondents in this Writ Petition under the provisions of the Right to Information Act 2005 for furnishing manual copies of the required documents but that request has been declined. Claiming to be aggrieved thereby the Petitioner has filed this Writ Petition challenging those orders of refusal and has sought for consequential direction to the police authorities to furnish copies of those documents. 4 22 n W.P. No. 1023193.The Fifth Respondent has filed counter affidavit dated 26.07.2019 stating that all documents sought relating to the accident and vehicle in question have been uploaded on 05.12.2018 in the CCTNS portal of the Police Department in the internet which could be downloaded by the Sixth Respondent on payment of prescribed fees.4.During the course of hearing it is highlighted by the Learned Counsel for the Petitioner that though the police authorities now claim to have made available the required documents in their website in the internet in the present case the undeniable reality is that in respect of most of the accidents documents are leisurely uploaded on piece meal basis in the respective police stations as a result of which the insurers are not able to provide timely instructions to their Advocates to prepare Counters so as to effectively conduct the cases before the Motor Accident Claims Tribunals where it is found difficult to seek extension of time to file the same beyond the stipulated period. It is further explained that on account of reduction of staff strength to curtail operational costs coupled with time constraints there has been severe dearth of manpower for the insurers to even download the required documents and in that piquant situation the engagement of investigators like the Petitioner for the purpose of collecting manual copies of the required documents from the 5 22 n W.P. No. 102319concerned police stations continues to be inevitable and no exception could be taken to the same especially when such practice is still prevalent in the neighbouring States of Kerala and Karnataka. In this scenario it is implored that when there is no facilitating option for the investigators like the Petitioner to download the required documents from the CCTNS portal of the Police Department in the internet their availing of the machinery endowed under the beneficent provisions of the Right to Information Act 2005 for that purpose cannot be denied much less faulted by the police authorities.5.On careful consideration of the aforesaid rival contentions of the parties which has bearing on the rights and obligations of investigators insurers and police officers it would be appropriate to determine the following substantial questions of law of contemporary importance:and 160 of that enactment read with Rule 150 of the Central Motor Vehicles Rules 1989 that there is an entitlement as of right conferred on the insurer to be furnished with particulars required of the vehicle said to have been insured with it and of the accident in which it is reported to be involved by the concerned police authorities and that would necessarily also mean supplying copies of relevant documents in proof thereof. The Hon’ble Supreme Court of India in General Insurance Council vs State of Andhra Pradesh12 SCC 7 22 n W.P. No. 102319354] and the Division Bench of this Court in United India Insurance Co. Ltd. vs R.Venkatesanhave reiterated that the statutory obligations on the police authorities in terms of the said provisions is mandatory and has to be forthwith complied on occurrence of accident involving the motor vehicle without brooking any delay. This Court in Cholamandalam MS General Insurance Co. Ltd. vs Inspector of Police Cuddalorehas declared that that the hosting of the required documents in the CCTNS portal of the Police Department in the internet is the online version of carrying out that statutory obligation by the police authorities in the State of Tamil Nadu and it is precisely for that reason the requirement of furnishing manual copies of those documents to the Motor Accidents Claims Tribunals and insurers has been done away upon having meticulously verified that access to that facility has been made available to them and that aspect has also been expressly recorded in that decision. In other words it follows that there is definitely a functional system in place as on date in the digitalized mode for the police authorities to discharge their obligations to the insurers in terms of Sections 158(6) and 160 of the Motor Vehicles Act 1988.8 22 n W.P. No. 1023197.Having arrived at that conclusion the query arises as to whether despite the availability of the aforesaid mechanism is it not also permissible in law to obtain the required documents from the police authorities by invoking the provisions of the Right to Information Act 2005. It would suffice for this purpose to refer to the binding ruling of the Hon’ble Supreme Court of India in Chief Information Commissioner vs High Court of Gujaratof the Right to Information Act 2005 excludes disclosure of personal information whichhas no relationship to any public interest or activity orwould cause unwarranted invasion of the privacy of the individual. It is beyond cavil that the documents required by the insurer from the police authorities regarding the accident and the vehicle involved undoubtedly pertain to personal information either of the victim or the vehicle owner which would fall under that exception. 9 22 n W.P. No. 102319It may also be remembered here that a Nine Judge Bench of the Hon’ble Supreme Court of India in K.S.Puttaswamy vs Union of India10 SCC 1] has in no unmistakable terms recognized that the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution. Viewed from that perspective it must be held that when the right has been created for the insurer to obtain the required documents from the police authorities in a certain way under the Motor Vehicles Act 1988 such right must be exercised only in that way and that other modesfor seeking that relief stand necessarily forbidden. 8.The focus next turns to the locus standi of an investigator like the Petitioner in this case to correspond with police authorities and prosecute litigation relating to the documents required by the insurer. It is axiomatic that the relationship between an insurer and an investigator appointed by that insurer to collect documents and make enquiries regarding the accident involving the vehicle said to have been insured with that insurer is simply that of principal and agent. It is an elementary principle of law that an agent in his own personal capacity cannot enforce the rights of his principal as against third 10 22 n W.P. No. 102319persons and at best he can act or represent on behalf of his principal for that purpose depending upon the extent of his authority in that regard but that would not by any stretch of imagination entitle the agent to act independent of his disclosed principal. It cannot be forgotten here that the insurer collects funds from the public as vehicle owners in the form of insurance premia for meeting the claims for compensation arising out of motor accidents in pursuance of the requirement imposed by law. As a corollary the role of the insurer in defending third party claims arising out of motor accidents is that of a trustee of public funds and as such it is one of the essential duties required to be performed by the hierarchy of officials in the organizational structure of the insurer which responsibility ought not to be abdicated by ingenious methods of outsourcing those functions to freelancers appointed as investigators under the ruse of lack of manpower. It is no doubt true that in the absence of any prohibition the hiring of services of individuals on contract basis for carrying out specific tasks of a business entity due to exigencies would be permissible for supplementing the performance of work but that arrangement cannot lead to absurd consequences of supplanting the essential functions of the insurer itself. It is probably in that factual backdrop the right of access to the CCTNS portal has been thoughtfully restricted only to stakeholderson payment of prescribed fee and it cannot be carped that 11 22 n W.P. No. 102319there is no provision for other intermeddlers who are in no way connected with it for using that facility as it is likely to otherwise cause invasion of the privacy of the victims and the vehicle owners by misuse of their personal information. That being so it is really inconceivable as to how the Petitioner in this case could independently assert rights against the police authorities to produce documents required by the Sixth Respondent and further prosecute this Writ Petition in his personal capacity for such object. 9.Be that as it may for the sake of rendering substantive justice the legal remedy available to an insurer when documents required from police authorities in connection with an accident involving a vehicle said to be insured with it have not been furnished may be examined. The complaint that documents are not uploaded on time and there been inordinate delay in hosting them in the CCTNS portal of the Police Department in the internet has earlier been brought to the notice of this Court and in that regard it has been ordered by this Court in Cholamandam MS General Insurance Company Limited vs Director General of Police Tamil Naduas follows: “16. …. it is hereby directed that the State Crime Records Bureau Chennaiand all Police Stations shall carry out the 12 22 n W.P. No. 102319implementation of the Detailed Accident Reporton Digital Platform without any let or hindrance. It is hereby directed that the SCRB and all Police Stations shall strictly upload the name and mobile number of the victim or claimant representing the victim as soon as possible to enable the victims claimants to access the records. The SCRB Chennai and all Police Stations shall implement the DAR Regime in good order and condition by uploading all required documents relating to motor accidents claims for the benefit of all stakeholders in an expeditious manner without delay and ensure that the uploaded documents are verified for authenticity and are legible for use for the larger benefit of all the intended beneficiaries. It is hereby made clear that all Nodal Officers identified by the Office of the Director General of Police Chennai shall duly redress the grievances raised by all stakeholders within a reasonable timeline to carry out the purpose of the DAR regime.”In addition to and not in derogation of the aforesaid directions issued by this Court to the police authorities to set right that shortcoming it must be pointed out that an aggrieved insurer is also entitled to make an application to the Motor Accidents Claims Tribunal where the claim petition for compensation is 13 22 n W.P. No. 102319pending seeking direction to the concerned police authorities to furnish the required documents in consonance with the mandate of Sections 158(6) and 160 of the Motor Vehicles Act 1988 so as to enable that insurer to effectively contest the claim petition. Such power to the Motor Accidents Claims Tribunal flows from Section 169 of the Motor Vehicles Act 1988 read with Rule 1 of Order XVI of the Code of Civil Procedure 1908. Even otherwise as ruled by the Hon’ble Supreme Court of India in Chief Executive Officer & Vice Chairman Gujarat Maritime Board vs Haji Daud Haji Harun Abu11 SCC 23] it is well settled that where a substantive power is conferred upon a court or tribunal all incidental and ancillary powers necessary for an effective exercise of the substantive power have to be inferred following the dictum laid down in Khyerbari Tea Company Limited vs State of Assam 2 SCC 409] the Hon’ble Supreme Court of India has restated that proposition of law as follows: “18. It is well settled that when a power is given to an authority to do something it includes such incidental or implied powers which would ensure the proper doing of that thing. In other words when any power is expressly granted by the statute there is impliedly included in the grant even without special mention every power and every control the denial of which would render the grant itself ineffective. Thus where an Act confers jurisdiction it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary to its execution.19. The reason for the ruleis quite apparent. Many matters of minor details are omitted from legislation. As Crawford observes in his Statutory Constructionthis Court held that the income tax appellate tribunal has implied powers to grant stay although no such power has been expressly granted to it by the Income Tax Act.”As such when an application for that purpose is made by an insurer in a pending Claim Petition for compensation it is incumbent upon that Motor Accidents Claims Tribunal to expeditiously consider the same and pass appropriate orders thereon in accordance with law. If found necessary the Motor Accidents Claims Tribunal may by recording reasons in writing also extend time to the insurer to file counter or defer the conduct of trial till the required document is actually produced on case to case basis having due regard to its material nature and relevancy bearing in mind the salutary intention that the ends of justice has to be secured for comprehensive and 16 22 n W.P. No. 102319meaningful adjudication of the matter ultimately. The orders passed by the Motor Accidents Claims Tribunal on such application made by an insurer would certainly be amenable to the superintending jurisdiction of this Court under Article 227 of the Constitution. When such efficacious mechanism exists in the statutory provisions it is hard to believe that the insurer is helpless when the required documents are not uploaded in time in the CCTNS portal of the Police Department in the internet as sought to be portrayed by the Petitioner in this case. 10.In the light of the foregoing discussion the questions raised are answered as under:(i)The provisions of the Right to Information Act 2005 cannot be invoked for obtaining documents from police authorities in connection with defending a claim for compensation before the Motor Accidents Claims Tribunal constituted under the Motor Vehicles Act 1988.(ii)An investigator appointed by an insurer cannot in his own personal capacity correspond with public authorities much less prosecute litigation relating to furnishing of documents in connection with an accident involving a vehicle said to be insured with that insurer.17 22 n W.P. No. 102319(iii)When documents required by an insurer in terms of Sections 158(6) and 160 of the Motor Vehicles Act 1988 are not uploaded on time in the CCTNS portal of the Police Department in the internet in the State of Tamil Nadu the aggrieved insurer is entitled to make an application under Section 169 of the Motor Vehicles Act 1988 read with Rule 1 of Order XVI of the Code of Civil Procedure 1908 to the Motor Accidents Claims Tribunal where the claim petition for compensation is pending seeking direction to the concerned police authorities to furnish the required documents apart from seeking redressal of such grievance from the concerned Nodal Officer identified by the Office of the Director General of Police Tamil Nadu as directed by this Court in Cholamandam MS General Insurance Company Limited vs Director General of Police Tamil Naduand 160 of the Motor Vehicles Act 1988 or does not respond to the direction issued by the Nodal Officer for uploading such 18 22 n W.P. No. 102319document in the CCTNS portal of the Police Department he shall be liable for disciplinary action as per rules. Hence the Director General of Police Tamil Nadu is directed to issue a circular in this regard along with a copy of this order to all the concerned Police Officers in the State of Tamil Nadu requiring strict compliance of their statutory obligations mentioned supra and also send copies of the same to the insurance companies which have been registered with the CCTNS portal of the Police Department for availing the online facility for downloading required documents. The Registry of this Court after obtaining necessary orders from the Hon’ble Chief Justice shall also communicate copy of this order to all the Presiding Officers of the Motor Accidents Claims Tribunals in Tamil Nadu and Puducherry for apprising the legal position enunciated in this order.12.In the upshot the Writ Petition is dismissed with the aforesaid observations. No costs.01.06.2020vjtIndex: YesNote: Issue order copy by 04.06.202019 22 n W.P. No. 102319To1. The State Information Commissioner Tamil Nadu Information Commission No. 2 Sir Thiyagarayar Road Eldams Road Junction Theynampet Chennai 600 018.2. The Superintendent of Police 1st Appellate Authority Tiruppur District.3. The Public Information Officer Additional Superintendent of Police Police Head Office Tiruppur District.4. The Deputy Superintendent of Police Udumalpet Sub Division Tiruppur District.5. The Inspector of Police Thali Police Station Tiruppur District.6. The Branch Manager New India Assurance Company Ltd. Amman Complex Erode 11.Copy to1. The Director General of Police Tamil Nadu Kamarajar Salai Mylapore Chennai.2. The RegistrarMadras High Court Chennai.20 22 n W.P. No. 102319 21 22 n W.P. No. 102319P.D. AUDIKESAVALU J.vjtW.P. No. 102319Reserved on: 30.08.2019Pronounced on: 01.06.202022 22

Voters must have adequate notice of the dis-qualifications of an election candidate: Bombay High Court

In order to consider the votes cast in favour of a successful candidate, it must be proved that voters had adequate notice and were aware of the disqualifications of the candidate contesting elections and in spite of such knowledge, they went ahead and casted their vote for that particular candidate. A single-judge bench comprising of Justice C.V. Bhadang, while adjudicating the matter in Mr Ashok Rajam Raul v. Mr Mandar Pramod Vichare; [CIVIL WRIT PETITION NO.4838 OF 2019], dealt with the issue of awareness of voters about the credibility of candidates contesting elections. The general elections of the Municipal Corporation were held in which the petitioner and the respondent Nos.1 to 4 were the contesting candidates. In the said election, the petitioner polled highest number of votes being. The petitioner having secured the highest number of votes was declared elected. The first respondent filed election petition before the learned Civil Judge, challenging the election of the petitioner on the ground that the petitioner was disqualified to contest the said election and on account of a material irregularity in the election proceedings and the corrupt practice. In short, according to the first respondent, the petitioner filed his nomination form furnishing false, misleading and incomplete information. While elaborating the said ground, it was contended that the petitioner had disclosed in the nomination form that there is only one criminal case pending against him, while there were two other criminal cases in which the petitioner was facing trial. According to the first respondent, the following two criminal cases were not disclosed by the petitioner while filling the nomination form. The counsel appearing for the petitioner stated that by furnishing such false, incomplete and misleading information, the petitioner has misled and mis-represented to the voters of the constituency about his clean image “resulting in supremacy over other candidates”. According to the first respondent, on account of such misleading information, the voters were induced by the petitioner, to cast votes in favour of the petitioner, although the petitioner was facing offences of cheating, criminal breach of trust and other offences, involving moral turpitude. It is contended that this has materially affected the result of the election.

on 18 05 2021 on 22 03 1 wp 4838 19 IN THE HIGH COURT OF JUDICATURE AT BOMBAYCIVIL APPELLATE JURISDICTIONCIVIL WRIT PETITION NO.4838 OF 2019Mr. Ashok Rajaram RaulAge 67 years Address 5B 11 Pereira Nagar Co Op.Hsg. Society Khopat Thane(W)... PetitionerVs. 1. Mr. Mandar Pramod VichareAge 41 years Address Flat No.601 Samarth Ganga Niwas GovindBachaji Road Charai Thanebeing Election Petition No.02 2017 before thelearned Civil Judge Senior Division at Thane challenging theelection of the petitioner on the ground that the petitioner wasdisqualified to contest the said election and on account of a materialirregularity in the election proceedings and the corrupt practice. Inshort according to the first respondent the petitionerfiled his nomination formfurnishing false misleading and incomplete information. WhileMamta Kale page on 18 05 2021 on 22 03 1 wp 4838 19elaborating the said ground it was contended that the petitionerhad disclosed in the nomination form that there is only one criminalcase pending against him while there were two other criminal casesin which the petitioner was facing trial. According to the firstrespondent the following two criminal cases were not disclosed bythe petitioner while filling the nomination form.(i)Regular Criminal Case No.294 2015 whereinRespondent No.1 is Accused No.2 and which is pending before theHon’ble 1st Chief Judicial Magistrate Thane at Thane for offencespunishable u s. 406 409 34 of I.P.C.(ii)Case No.4414 SS 2005 pending before the Hon.43rd Metropolitan Magistrate Court Mumbai wherein theRespondent No.1 is arrayed as Accused No.1.5.It was contended that by furnishing such false incomplete and misleading information the petitioner has misleadand mis represented to the voters of the constituency about his cleanimage “resulting in supremacy over other candidates”. According tothe first respondent on account of such misleading information thevoters were induced by the petitioner to cast votes in favour of thepetitioner although the petitioner was facing offences of cheating Mamta Kale page on 18 05 2021 on 22 03 1 wp 4838 19criminal breach of trust and other offences involving moralturpitude. It is contended that this has materially affected the resultof the election.6.On behalf of the first respondent reliance was placedon a notification dated 1 September 2006 issued by the StateElection Commission according to which a candidate contesting anelection is obliged to make full and complete disclosure with regardto the matters in para 5 of the preamble of the said notification. Itwas contended that in the event of a candidate furnishingincomplete incorrect or false information or failing to furnish fulland correct information with regard to the five matters it would bea sufficient ground for setting aside his election as he would bedisqualified under the relevant provisions of law. The disclosurewhich is required to be made by the candidate on the five aspects isas underabove.7.It was contended that had the petitioner not made anyfalse representation and or misleading statements and declarations the first respondent would have had a level playing field in theelection.8.There was another ground about the cheque issued bythe petitioner as a Chairman of Jagmata Charitable Trust Colbartowards the property taxes pertaining to Jagmata Shankar Mandirbeing returned as dishonoured. It was therefore contended that NoDues certificate issued by the Corporation was not valid.9.For the present purpose we are not concerned with thesaid ground as the Trial Court has principally allowed the electionpetition on the ground of alleged non disclosure of the two criminalcases in the nomination form although the Trial Court has held thatthis does not amount to a corrupt practice. The Trial Court hasMamta Kale page on 18 05 2021 on 22 03 1 wp 4838 19relied upon the decision of the Supreme Court in the case ofKrishnamoorthy Vs. Sivakumar 1 in order to find that the petitionerwas disqualified on account of the improper disclosure in thenomination form. The Trial Court had further gone ahead and hasdeclared the first respondent to be elected as a Corporator(inasmuch as the first respondent had secured the next highestvotes) in place of the petitioner.10.It may be mentioned that the petitioner had filed anapplicationunder Order VII Rule 11(a) of the Code of CivilProcedurefor rejection of the petition on theground that it does not disclose any cause of action. The learnedTrial Court by an order dated 5 December 2017 dismissed the saidapplication thus refusing to reject the election petition. Thepetitioner challenged the same before this Court in C.R.ANo.100 2018. This Court by a judgment and order dated 22 March2018 dismissed the revision application thereby confirming theorder passed by the Trial Court.11.The petitioner resisted the election petition. It wascontended that the allegations regarding corrupt practice and or1(2015) 3 SCC 467 Mamta Kale page on 18 05 2021 on 22 03 1 wp 4838 19undue influence were vague and baseless and in fact defamatory innature. It was denied that the petitioner had intentionally concealedthe pendency of any criminal case. It is submitted that except thecase which was disclosed there were no other criminal casespending against the petitioner “which were required to be disclosedin the nomination form”. It was contended that in RCCNo.294 2015 charge was yet to be framed and therefore it was notobligatory on the part of the petitioner to disclose the same in thenomination form as the cognizance was not yet taken. In so far asRCC No.4414 SS 2005 is concerned it was pointed out that thesame is dismissed long back in the year 2009. It was thus deniedthat there was any false incomplete or misleading informationfurnished in the nomination form. The allegations about there beingdefault in the payment of taxes in respect of Jagmata CharitableTrust Colbar were also denied.12.On the basis of the rival pleadings the learned TrialCourt framed the following issues.Sr.No.Issues1Does the petitioner prove that respondent No.1has made false incomplete and misleadingstatement in declaration furnished by him Mamta Kale page on 18 05 2021 on 22 03 1 wp 4838 192Does said alleged statements in declaration havematerially affected result of election 3Is respondent No.1 liable for disqualification onaccount of said alleged statements made indeclaration 4Is the petition tenable on grounds mentioned init 5Is the petitioner entitled for relief sought for 6Costs on whom to be saddled 7What order and decree 13.At the trial the first respondent examined himself(P.W.1) alongwith Ms. Snehlata Kolteand produceddocuments including certified copy of the roznama in RCCNo.1690 2019 alongwith others.14.The petitioner examined himselfnon disclosureof the offencein the affidavit filed alongwith the nominationform ii) such non disclosure being in breach of any law ornotification which is applicable and which is binding and iii) thatsuch non disclosure has materially affected the result of the election.18.It is submitted that none of these aspects have beenpleaded or proved by the first respondent. It is pointed out that thelearned Trial Court in paragraph 25 of the judgment has held thatthere is no evidence to establish the ground of corrupt practice asagainst the petitioner. It is submitted that in such circumstances theground based on Section 100(1)(b) of the Representation of theMamta Kale page 1 on 18 05 2021 on 22 03 1 wp 4838 19Peoples Act 1951no longer survives. It is submittedthat in so far as non disclosure of offence criminal cases isconcerned the Trial Court has failed to notice as to under which lawthe petitioner was mandated to make such disclosure. The learnedcounsel was at pains to point out that strict rules of pleading applyto election petition. It is pointed out that the first respondent apartfrom failing to plead necessary details had also failed to producethe notification dated 1 September 2006. It is submitted that thusthe fundamental requirement of clauseof Section 100(1)(b)was not satisfied. It is submitted that the learned Trial Court inparagraph 49 of the judgment has also observed that the firstrespondent has not pleaded that the non disclosure of the offencehas materially affected the election of the petitioner and inspite ofthat the learned Trial Court has erroneously proceeded to hold thatthe non disclosure of the offence has materially affected theelection. It is pointed out that the reliance placed on the decision inthe case of Krishnamoorthy is misplaced in as much as it was a caseof corrupt practice which is not held to be proved on facts in thepresent case. It is submitted that the Trial Court was also in error inplacing reliance on the decision in the case Kisan Shankar KathoreVs. Arun Dattatray Sawant1. It is submitted that the election1(2014) 14 SCC 162Mamta Kale page 1 on 18 05 2021 on 22 03 1 wp 4838 19petition was essentially under Section 16 r w. Section 403 of the Actof 1949 and therefore the first respondent ought to have pleadedand proved the fact of non disclosure of the offence havingmaterially affected the result of the election. It is thus submittedthat the Trial Court was in error in setting aside the election of thepetitioner. 19.The learned counsel has also taken exception to the firstrespondent being declared as elected in the place of the petitioner.It is submitted that no such course was open having regard to theprovisions of the said Act of 1949. 20.Mr. Kulkarni the learned counsel for the respondentNo.1 has supported the impugned judgment. It is submitted that theState Election Commission has issued an order on 5 October 2015under Article 243 ZA of the Constitution of India read with Section14 of the said Act prescribing the nomination form and the affidavitin support thereof. It is submitted that the said order is a piece ofsubordinate legislation which need not be pleaded. It is submittedthat the Court can take judicial notice of the same under Section 57of the Evidence Act. It is submitted that under Section 16 read withSection 403(3) of the Act the Trial Court has all the powers andMamta Kale page 1 on 18 05 2021 on 22 03 1 wp 4838 19jurisdiction to take cognizance of the said order and to decide theelection petition accordingly.21.In so far as the ground about non production ofnotification dated 1 September 2006 is concerned it is submittedthat this was not the ground raised before the Trial Court nor it hasbeen raised in the present petition. Quite to the contrary in theWritten Statement the petitioner has conceded about the existenceof the notification dated 1 September 2006 being part and parcel ofthe general election ‘guidelines and regulations’. It is submitted thatthe petitioner in the Written Statement has raised a defence that hewas required to disclose only those cases where the charge is framedand not the cases where merely the cognizance is taken. It issubmitted that thus the contention about the non production of thenotification dated 1 September 2006 is misconceived. 22.The learned counsel placing reliance on the decision ofthe Supreme Court in the case of Krishnamoorthy has submittedthat once it is established that the successful candidate was involvedin certain criminal cases and there is no disclosure of those cases the same would amount to corrupt practice. It is submitted that thepetitioner has admitted in the cross examination that he did notMamta Kale page 1 on 18 05 2021 on 22 03 1 wp 4838 19disclose Criminal Case No.294 2015 because no charge was framedagainst him in that case. It is submitted that thus the only questionbefore the Trial Court was whether the non disclosure of the saidcase will result into invalidation of the election. It is submitted thatthe first respondent has clearly pleaded that non disclosure of thecriminal cases involving offences inviting sentence of two years ormore has deprived the voters from exercising their franchise freelyand the election is vitiated by undue influence and corrupt practice.The learned counsel has pointed out that in paragraph 8 of theelection petition it has been specifically pleaded that such non disclosure has materially affected the result of the election. 23.The learned counsel placing reliance on the decision ofthe Supreme Court in Krishnamoorthy and Kisan Shankar Kathorehas submitted that such non disclosure will result into the electionbeing materially affected. It is submitted that there is no perversityin the findings recorded by the Trial Court and even assuming thatthe Trial Court has misread paragraph 83 and 86 of the judgment inKrishnamoorthy this Court can clarify the same while refusing tointerfere with the ultimate finding which does not suffer from anyperversity. In support of such proposition the learned counsel hasplaced reliance on the decision of the Constitution Bench of theMamta Kale page 1 on 18 05 2021 on 22 03 1 wp 4838 19Supreme Court in the case of Syed Yakoob Vs. K. S. Radhakrishnan& Others 1. It is submitted that an error of law which is apparent onthe face of the record can be corrected by the Writ Court but not anerror of fact. 24.The learned counsel has submitted that the election ofthe petitioner having been found to be invalidated the Trial Courtwas justified in declaring the first respondent as elected as he wasthe candidate having secured the second highest number of votes.25.The learned counsel was at pains to point out that theoffences for which the petitioner is facing prosecution are underSection 406 and 409 read with Section 34 of the IPC which invitessentence of more than two years. It is submitted that this Courtwhile deciding the revision application challenging the order passedby the Trial Court under Order VII Rule 11 of CPC has held thatcognizance was taken by the Court and that finding having attainedfinality cannot be revisited. Reliance is placed on the decision of theSupreme Court in the case of R.R. Chari Vs. State of Uttar Pradesh 21AIR 1964 SC 4772AIR 1951 SC 207Mamta Kale page 1 on 18 05 2021 on 22 03 1 wp 4838 19and State of Karnataka and Anr. Vs. Pastor P. Raju1 in order to submitthat taking cognizance does not involve any formal action andcognizance is taken once the Magistrate has applied his mind to thefacts about commission of the offence. It is submitted that theimpugned judgment does not suffer from any infirmity and thepetition be dismissed.26.I have carefully considered the rival circumstances andthe submissions made. Following points arise in this petition fordetermination.(i)Whether the election of the petitioner is liable to be setaside on the ground of non disclosure of the pending criminalcase s by the petitioner in the nomination form affidavit amounting to undue influence and or corrupt practice vitiating theelection of the Act 6 SCC 728 Mamta Kale page 1 on 18 05 2021 on 22 03 1 wp 4838 1927.Point No.Thane in which thepetitioner was accused No.2. The nomination formwithaffidavit was filed by the petitioner on 3 February 2017 when thesaid case was pending. It is also a matter of record that theMamta Kale page 1 on 18 05 2021 on 22 03 1 wp 4838 19petitioner only disclosed one criminal case as Case No.250in the nomination form. The petitionermentioned that the said case was pending before the Thane courtunder section 143 and 145 in which the court had taken cognizanceon 27 January 2017. We are principally concerned with the nondisclosure of RCC No.294 2015and theeffect thereof. 30.Clause 7 of the nomination form is relevant for thepurpose. It contains two parts. Part 7(a)which is relevant is invernacular.31.It can thus be seen that it pertains to disclosure ofoffence s which would attract sentence of two years or more andwhether a chargesheet is filed or not in respect thereof. Part 7(b)pertains to conviction with which we are presently not concerned.Admittedly the pendency of RCC No.294 2015 in which thepetitioner was facing prosecution for the offences under section 406and 409 r w section 34 of IPC has not been disclosed in thenomination form and the affidavit. The petitioner has not disputedthe pendency of RCC No.294 2015 in which he is accused No.2. Inthe written statement he claimed that he received theMamta Kale page 1 on 18 05 2021 on 22 03 1 wp 4838 19summons notice in the said case after filing of the nomination form.It is next contended that even otherwise it was not necessary for thepetitioner to disclose the said case as the court had not takencognizance or framed charge in it. In para 12 of the writtenstatement the petitioner however did not dispute that “everycandidate contesting an election is obliged to make true and correctdisclosure of all his details before the public at large so as to enablethe voters to make a meticulous decision as to in whose favour thevote is to be cast”.32.It would now be necessary to refer to the evidence ofthe petitioner. The petitioner has admitted that it is mandatory tomention the criminal background in the nomination form as per theelection rules and the “Supreme Court decisions”. He claimed thathe did not mention the said case in the nomination form as therewas no charge framed in the said case. He admitted the documentsat Exh.123 124 126 127 and 128 which would clearly go to showthat the petitioner had appeared in the said case. Exh.128 forinstance is a copy of the exemption application filed on behalf of thepetitioner much prior to the filing of the nomination from. It canthus be seen that the factum of the pendency of the said case undersection 406 409 of IPC in which the petitioner was accused No.2Mamta Kale page 2 on 18 05 2021 on 22 03 1 wp 4838 19and the petitioner being aware of the said case prior to the filing ofthe nomination form is well established on record. The offences arepunishable with a sentence in excess of two years. The record alsodiscloses that the court had taken cognizance in the matter assummons was issued and the petitioner had put in appearance. It isnow well settled that the court takes cognizance when the courtapplies its mind to the prosecution case and the material producedand proceeds against the accused. Framing of charge in warrant atriable caseis a further stage where the accused is not discharged undersection 329 of the Code of Criminal Procedureand under section 240 of the code the courtis of the opinion that there is ground for presuming that theaccused has committed the offence. 33.It is true that the ground on which the election isassailed have to be properly pleaded. I have carefully gone throughthe election petition and I find that the ground based on nondisclosure of the criminal antecedent has been adequately pleadedin the petition. It is true that the burden to establish the ground swould lye on the candidate assailing the election. However it cannot be equated with the burden similar to one on the prosecution inMamta Kale page 2 on 18 05 2021 on 22 03 1 wp 4838 19a criminal case. In the present case as noticed earlier the petitionerdid not dispute that every candidate was under obligation todisclose the criminal antecedent. He also did not dispute thependency of the RCC No.294 2015. The contention that he was notaware of the said case prior to filing of the nomination form cannotbe accepted in view of the documents referred to above which wereconfronted to the petitioner in the cross examination and have beenadmitted. It also appears that a summons notice was issued to thepetitioner which would indicate that the CJM had applied mind andthe cognizance was taken. The offences indeed invite sentence inexcess of two years. Thus the contention based on the want ofadequate pleadings and the failure to produce the notification dated1 September 2006 in my view cannot be accepted more so when theground about non production was not raised before the trial courtnor it is raised in the petition. The ground appears to have beenpressed in service for the first time during the submissions at the bar.That apart as per section 14(1) of the Act the superintendence direction control and conduct of the election to the corporationsvests in the State Election commission. The Commission in exerciseof the said powers has prescribed the form of nomination andaffidavit by orders from time to time which have been revised byorder dated 5 October 2015. The nomination form in this case is asMamta Kale page 2 on 18 05 2021 on 22 03 1 wp 4838 19prescribed by the Commission of which judicial notice can be taken.For this reason also the ground based on the non production of theNotification dated 1 September 2006 cannot be accepted.34.The trial court has relied on the decision of theSupreme Court in Krishnamoorthy and Kisan Kathore. The learnedcounsel for the petitioner has submitted that the said decisions willbe inapplicable as they arose out of an election dispute under theRepresentation of the Peoples Act. It is submitted that in the case ofKisan Kathore there were statutory provisions which were found tobe not complied and in the election petition it was pleaded that thesame has materially affected the result of the election. It iscontended that the requirements of Section 100(1)of the saidAct were complied in that case. It is pointed out that the learnedTrial Court in para 49 of the judgment has found that the petitionerhad not pleaded that the election is materially affected by thealleged non disclosure.35.In so far as the case of Krishnamoorthy is concerned it issubmitted that it was a case where the election was challenged onthe ground of corrupt practice under section 100(1)(b) of the Act of1951. It is pointed out that the Trial Court in this case has refused toMamta Kale page 2 on 18 05 2021 on 22 03 1 wp 4838 19uphold the ground of corrupt practice and in any event the case ofKrishnamoorthy did not apply in this case. 36.Before dealing with the submissions as raised it isnecessary to make a reference to the decision of the Supreme Courtin Union of India Vs. Association of Democratic Reforms1. Thequestion involved in that case was whether the voters have a rightto know relevant particulars of the candidate. The Supreme Courtreferring to its earlier decisions found that right to vote is a part offundamental right to freedom of speech and expression underArticle 19(1)of the Constitution of India as a voter’s speech orexpression in case of election would include casting of votes. For thispurpose information about the candidate to be selected is a must. Ithas been held that the right to know the antecedents includingcriminal past of the candidate contesting election for Member ofParliamentand Member of Legislative Assemblyismuch more fundamental and basic for the survival of democracy.The Supreme Court in para 48 of the Judgment directed the ElectionCommission to call for information on affidavit by issuing necessaryorder in exercise of powers under Article 324 of the Constitution ofIndia on the five aspect as referred to above. It is true that the said1(2002) 5 SCC 294Mamta Kale page 2 on 18 05 2021 on 22 03 1 wp 4838 19case pertained to the election of the MPs and the MLAs. In para 49 the Supreme Court has noted that the Election Commission has fromtime to time issued instructions orders to meet the situation wherethe field is unoccupied by legislation.37.It appears that after the said decision the Act of 1951came to be amended in the year 2002 by introduction of Section33A. It is true that there is no similar provision which could befound in the Mumbai Municipal Corporation Act 1988of the Acthas issued the orders including the order dated 5 October 2015prescribing the form incorporating the requirement of disclosure ofthe criminal antecedents. Thus it cannot be accepted that there is nostatutory basis or requirement for disclosure made out in this case.38.In the case of Kisan Kathore the election of theappellant was set aside by the High Court on account of nondisclosure on certain aspects as noted in the judgment. The SupremeCourt while upholding the same has noted the decision inAssociation for Democratic Reforms to hold that the main reason forMamta Kale page 2 on 18 05 2021 on 22 03 1 wp 4838 19issuing the directions by the Supreme Court and the guidelines bythe Commission pursuant thereto is that the citizens have a right toknow about the candidate including his her criminal antecedents.39.In Krishnamoorthy the election was challenged on theground of non disclosure of full particulars of criminal cases at thetime of filling of nomination form as in the present case. TheSupreme Court found that it creates impediment in free exercise ofelectoral right and the election is liable to be declared as null andvoid. The court summed up the law in para 86 as under 86.In view of the above we would like to sum upour conclusions :of the 1951 Act.(e)The question whether it materially affects theelection or not will not arise in a case of this nature.(Emphasis supplied)40.It is true that both the case of Kisan Kathore andKrishnamoorthy arose out of the Act of 1951. However in myhumble opinion the ratio would be applicable with equal force in asmuch as the local authorities such as corporations are alsodemocratic institutions of local self governance. It would beatrocious to assume that the requirement of such disclosure will notapply only because the decision in Kisan Kathore andKrishnamoorthy are rendered in the context of elections under theAct of 1951. It will lead to a situation where a voter exercising hisfranchise at the election of a MP and MLA will have a right to knowthe criminal antecedents of the candidate but will not have any suchMamta Kale page 2 on 18 05 2021 on 22 03 1 wp 4838 19right at the election of a councilor. It is necessary to note that I havealready dealt with ground of non production of thenotification order dated 1 September 2006 and the absence ofstatutory requirement none of which can be accepted. Thus in myconsidered view the principles and the spirit of the aforesaiddecisions would equally apply to the present case. 41.It is necessary to note that there is a specific avermentin para 8 of the petition that the non disclosure of the criminal caseshas materially affected the result of the election. 42.Thus the point No.1 is answered accordingly. Theelection of the petitioner is liable to be set aside on account ofnondisclosure of the Criminal Case No.294 2015 which amounts toundue influence which is an irregularity affecting the result of theelection.43.Point No.Amravati & Ors.4. He submits that the firstrespondent could not have been declared elected by ‘throwing away’the votes cast in favour of the petitioner. He therefore submitted thatthe learned Judge was in error in declaring the first respondentelected.12003(4) ALL MR 5482AIR 1969 SC 6043AIR 1993 SC 9541998Bom.C.R. 578Mamta Kale page 2 on 18 05 2021 on 22 03 1 wp 4838 1946.Section 18 and subsection 5 of section 403 of the Act of1949 which are relevant for the purpose read thus.18.(1)If at any general elections or an electionheld to fill a casual vacancy no councilor is elected oran insufficient number of councilors are elected or theelection of any or all of the councilors is set asideunder this Act and there is no other candidate orcandidates who can be deemed to be elected in his ortheir place theshall appointanother day for holding a fresh election and a freshelection shall be held accordingly.(2)A councilor elected under this section shall bedeemed to have been elected to fill a casual vacancyunder Section 15.403 (2) (4) If an application is made under Section 16that any particular candidateshall bedeemed to have been elected then the returnedcandidate or any other party may give evidence toprove that the election of the person in whose favoursuch declaration is sought would have been void if hehad been declared elected and an application hadbeen presented calling in question his election.If the Judge is of opinion Mamta Kale page 3 on 18 05 2021 on 22 03 1 wp 4838 19(i) that in fact any candidate in whose favourthe declaration is sought has received a majority ofthe valid votes or(ii) that but for the votes obtained by thereturned candidate by corrupt practices suchcandidate would have obtained a majority of the validvotes(7) 47.A conjoint reading of the aforesaid provisions wouldshow that in appropriate case the Court is clothed with jurisdictionto declare the other candidate as elected. There cannot be anymanner of dispute that such power can be exercised only inaccordance with the statutory provisions. To that extent the learnedSenior Counsel for the petitioner is right that such power cannot beexercised for equitable reasons for instance saving of electionexpenses or for any other similar reason. He pointed out that thereliance placed by the learned Trial Court on the decision in GeetaGore is misplaced as that case arose under the provisions of the Actof 1888 where there is specific enabling provision to declare theimmediate rival who has secured the next highest number of votesMamta Kale page 3 on 18 05 2021 on 22 03 1 wp 4838 19as elected. He submitted that the learned Trial Court was in error inproperly appreciating the ratio in the case of DnyneshwarBarabudhe and D.K.Sharma. 48.On the contrary it is submitted by Mr Kulkarni thelearned counsel for the first respondent that the proposition thatunless the voters are informed about the disqualification of thecandidate at the time of election when there are more that twocandidates in the fray is not an absolute proposition for declaringthe candidate receiving second highest votes as elected.49.In the case of Konappa Nadgouda the Supreme Courthas held thus If the number of candidates validly nominated is equalto the number of seats to be filled no poll isnecessary. Whereby an erroneous order of theReturning Officer poll is held which but for thatorder was not necessary the Court would be justifiedin declaring those contesting candidates elected who but for the order would have been declared elected.Where there are more than two candidates in the fieldfor a single seat and one alone is disqualified onproof of disqualification all the votes cast in his favourwill be discarded and the candidate securing the nextMamta Kale page 3 on 18 05 2021 on 22 03 1 wp 4838 19highest number of votes will be declared elected. Insuch a case question of notice to the voters mayassume significance for the voters may not if awareof the disqualification have voted for the disqualifiedcandidate. 50.In the case of D.K. Sharma the respondent RamsharanYadav was declared elected to the Bihar Legislaticve Assembly inFebruary 1990 in which the appellant D.K.Sharma was theimmediate rival having secured second highest votes. The appellantchallenged the election of Ramsharan Yadav on the ground that hisnomination was illegally accepted by the returning officer. It wasclaimed that in the previous assembly election in June 1977 theelection of the first respondent Ramsharan Yadav was set aside onthe ground of commission by him of corrupt practice and he hadincurred disqualification for a period of six years which was toexpire on 30 October 1990. It was thus claimed that the acceptanceof the nomination paper in the election in February 1990was illegal. It so happened thatduring pendency of the said election petition the President of Indiain exercise of powers under subsection 3 of section 8A of the Act of1951 issued a notification disqualifying the respondent Ram SharanYadav for a period of six years. Thus the relief in the electionMamta Kale page 3 on 18 05 2021 on 22 03 1 wp 4838 19petition was confined to the appellant being declared as electedhaving secured second highest votes. Admittedly there wereeighteen other candidates at the said election.51.In such circumstances taking a cue from the decision inKonappa Nadgouda the appellant led evidence to show that thevoters were given sufficient notice and they were aware of thedisqualification. It was therefore contended that the votes cast infavour of Ram Sharan Yadav have to regarded as votes ‘thrownaway’. The High Court on facts found that the evidence was notsufficient to hold that the voters who had cast their votes in favourof Ram Sharan Yadav had done so after having noticed thedisqualification. The Supreme Court concurred with the finding offact so recorded and dismissed the appeal.52.It can thus be seen that the legal position is well settled.In order to treat the votes cast in favour of the successful candidate(whose election is set aside for having incurred a disqualificationand or improper acceptance of the nomination paper) it ought to beproved that the voters had adequate notice and were aware of thedisqualification and inspite of such knowledge voted for thecandidate. This requirement of notice to the voters arises only whereMamta Kale page 3 on 18 05 2021 on 22 03 1 wp 4838 19there are more contestants than two. Thus such a requirement of thenotice would not arise where there are only two candidates in thefray. This is because in such a case if the Trial Court finds that thenomination of the successful elected candidate was wronglyaccepted there would only be one candidate left in the fray notrequiring any election. 53.It is not possible to accept the contention on behalf ofthe first respondent that the aforesaid proposition as laid down inthe case of Konappa Nadgouda which has been followed in the caseof D.K.Sharma and relied upon by this court in the case ofDnyaneshwar Barabudhe is not an absolute proposition. It is clearthat it is the well settled principle to which no exception is shown tobe carved out in the decision in Konappa Nadgouda except wherethere are only two candidates in the fray. No decision has beenbrought to my notice that the said proposition is not an absoluteproposition or that it admits of any exception and if so in whatcircumstances.54.Coming to the present case it was a multicorneredcontest involving more than two candidates. The First respondenthas neither pleaded nor there is any evidence to show that theMamta Kale page 3 on 18 05 2021 on 22 03 1 wp 4838 19voters were put to notice about the disqualification or otherwise ofthe petitioner. Thus although the election of the petitioner is setaside the votes polled in his favour cannot be treated as votes‘thrown away’ there by entitling the first respondent to be declaredas elected in the place of the petitioner.55.I find that the reading of the decision of this court inDnyaneshwar Barabudhe by the learned Trial Court is entirelywrong. In that case the concerned ward of Amaravati MunicipalCorporation was reserved for candidate belonging to OtherBackward Classwas declared elected.56.This court found that the reason for which the secondrespondent was declared elected namely to save the expenses forreelection was not a valid ground. This court placing reliance on thedecision of the Supreme Court in Konappa Nadgouda also foundthat the second respondenthad not led anyevidence whatsoever to show that the voters were given noticeabout the disqualification of the third respondent. In that view ofthe matter the judgment declaring the second respondent as electedwas set aside.57.The trial court while distinguishing the said judgmenthas observed that the declaration of election was not granted as theseat was reserved for a OBC candidate and the second highestcandidate was a non OBC candidate which is factually incorrect.Mamta Kale page 3 on 18 05 2021 on 22 03 1 wp 4838 1958.The reliance by the learned Trial Court on the decisionin Geeta Gore is equally misplaced. That was a case of an election ofa councilor of the Brihan Mumbai Corporation under the Act of1888 The concerned ward was reserved for a candidate belonging toOBC women category. During the pendency of the election petitionthe Caste Scrutiny Committee had invalidated the caste claim of thepetitioner Geeta Gore which was upheld by this court. Thus the onlyquestion in the election petition was about the relief of declarationof the respondent No.4as elected in theplace of Geeta Gore. This court placing reliance on section 33(2) ofthe Act of 1888 found that the language of the said section isexplicitly clear and unequivocal under which if the Chief Judge ofthe Small Causes Court finds that the elected councilor isdisqualified and his election is declared null and void the ChiefJudge shall direct the candidate securing the next highest votes tobe deemed to have been elected.59.The learned Senior Counsel for the petitioner is rightthat there is no similar provision which could be found in the Act of1949. Thus the relief of declaration granted cannot be sustained onthe basis the judgment in the case of Geeta Gore which isMamta Kale page 3 on 18 05 2021 on 22 03 1 wp 4838 19inapplicable in this case. In my considered view the saiddeclaration could not have been granted in the absence of a findingas to satisfaction of the requirements of section 403(5) of the Act of1949. The point No.2 is answered accordingly.60.The impugned order needs to be partly modified. In theresult the petition is partly allowed. The part of the judgmentdeclaring the first respondent elected as a Councilor from WardNo.12 D is hereby set aside. The part of the judgment setting asidethe election of the petitioner from the said ward is herebyconfirmed. Rule is partly made absolute in the aforesaid terms withno order as to costs.61.At this stage the learned counsel for the Petitionerseeks extension of the interim relief which is operating from 15 April2019.62.Mr. Kulkarni the learned counsel for the firstrespondent has strongly opposed the same. He points out that thereis now a concurrent finding by which the election of the petitionerhas been set aside and considering the balance tenure left it wouldnot be appropriate to continue the interim relief.Mamta Kale page 3 on 18 05 2021 on 22 03 1 wp 4838 1963.Mr. Apte the learned Senior counsel for the respondentNo.6 has left it to the discretion of the Court.64.Having regard to the fact that the interim relief isoperating from 15 April 2019 the same is extended for a period ofsix weeks from today. C.V. BHADANG J.Mamta Kale page 4

Modern concepts of penology discard the retributive aspect of punishment and highlight the deterrent factor, which is evident from the evolution of ‘jails’/‘prisons’ into “Correctional Homes”: Calcutta High Court

The psyche and mental maturity of the victim at the relevant point of time ought also to be looked into to ascertain as to whether the alleged act of sexual intercourse between the accused and the victim, was participatory from both ends. Such an opinion was held by the Hon’ble High Court of Calcutta before the Hon’ble Justice Sabyasachi Bhattacharyya in the matter of Sushanka Ghosh Vs. The State of West Bengal [C.R.A. No.209 of 2017]. It appears that the appeal had been preferred against the conviction of the appellant under Sections 417 and 376 of the Indian Penal Code (IPC) and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). It was contended by the learned advocate representing the appellant that the prosecution did not produce any document in evidence to show that the victim was a minor at the relevant date. Learned advocate contends that the trial court relied on an Admit Card, which was never revealed at all. Moreover, the counsel for the appellant referred to a case reported in the Hon’ble Supreme Court which was Mahadeo S/o KerbaMaske Vs. State of Maharashtra and another [ (2013) 4 SCC 637], wherein the Hon’ble Supreme Court categorically held that under Rule 12 of the Juvenile Justice (Care and Protection Children) Rules, 2007, that clearly provides the mode of proving the age. The victim admitted that the accused offered to marry her and cohabited with the victim one or two times. The learned counsel next contends that as admitted by the victim there was an affair going on between the accused, who was aged about 20 years, and the victim, who was allegedly 17 years 5 months old at the relevant point of time. Furthermore, it was contended on behalf of the appellant that the prosecution witness, who accompanied the victim to the hospital for her medical examination on November 10, 2015, had not stated anything in her evidence regarding the collection of any vaginal swab. Whereby, the medical report and the witnesses’ visit with the victim to the hospital oppose each other. Learned counsel representing the State contends that the Trial Judge, in the impugned judgment, indicated that the Admit Card of the victim was exhibited in the Court, which revealed the date of birth of the victim was May 30, 1998. The State representative submits that there is sufficient corroborative evidence on record to prove the prosecution case. However, the Hon’ble Court mentions that unless proved in accordance with the law, no document, including the alleged Admit Card, could even be looked into by the Trial Judge, since there was no probative value of such document, even if handed over during trial to the court below.  The Hon’ble Court was of opinion that a simple refusal to marry, subsequently after the alleged incident cannot be a handle to implicate the appellant on the charges clamped against him. Therefore, keeping all the facts, evidence in check,  the Hon’ble High Court of Calcutta before the Hon’ble Justice Sabyasachi Bhattacharyya ruled out  “… the judgment and orders of conviction and sentence dated February 7, 2017, and February 8, 2017, passed by the Additional District and Sessions Judge, Second Court at Krishnanagar, District-Nadia in Sessions Trial No.IX(III)/2016. The appellant is hereby acquitted of all the charges and shall immediately be released, if in custody. The appellant is further discharged from any condition or bond if furnished by the appellant in connection with any order of bail obtained by the appellant at any point of time”.

In the High Court at Calcutta Criminal Appellate Jurisdiction Appellate Side The Hon’ble Justice Sabyasachi Bhattacharyya C.R.A. No.2017 Sushanka Ghosh The State of West Bengal Mr. Arindam Jana Mr. Sumanta Das Mr. Bidyut Kumar Ray Ms. Rita Dutta For the appellant For the State Hearing concluded on Judgment on Sabyasachi Bhattacharyya J: This appeal has been preferred against the conviction of the appellant under Sections 417 and 376 of the Indian Penal Code and Section 4 of the Protection of Children from Sexual Offences Act 2012 POCSO Act). Learned counsel for the appellant submits that the prosecution did not produce any document in evidence to show that the victim was a minor at the relevant date. Learned counsel contends that the trial Court relied on an Admit Card which was never exhibited at all. By placing reliance on Mahadeo S o KerbaMaske Vs. State of Maharashtra and another reported at 4 SCC 637 learned counsel submits that the Supreme Court categorically held that the yardsticks for ascertaining the age of a juvenile can also be followed by courts for the purpose of ascertaining the age of a victim. It was held in the said judgment that the statutory provision contained in the Juvenile Justice Rules 2007 under Rule 12 clearly provides the mode of proving the age. In order of priority the documents are :the Matriculation orequivalent certificate if available the Birth Certificate from the School first attended and the Birth Certificate given by Corporation or a Municipality or a Panchayat. The said documents in the above order should be given precedence. In the event none of such alternative methods is available only then medical information can be sought for to determine the age. Learned counsel further cites Jarnail Singh Vs. State of Haryana reported at7 SCC 263 in support of the same proposition that the ascertainment of age both of a child in conflict with law and who is a victim of crime should be on the yardsticks based on the Rules in particular Rule 12 thereof. Learned counsel for the appellant contends that the said judgment read in conjunction with Section 94 of the Juvenile JusticeAct 2000clearly mandate the court to follow the said yardsticks in ascertaining the age of the victim which was not done in the present case. 6. Learned counsel further argues that there is patent discrepancy inherent in the deposition of the prosecution witnesses. PW1 the alleged victim stated her age to be 17 years and 10 months on the date of her deposition of April 12 2016. The alleged incident occurred between October 31 2015 and November 9 2015. Hence the victim even admittedly was 17 years 5 months old at the relevant juncture and was studying in Class XII. The victim alleged in her evidence that the incident took place about six months back when the accused refused to marry her.She further admitted that the accused offered to marry her and cohabited with the victim one or two times after which she allegedly narrated the incident to her mother. However PW2 the mother of the victim stated in her statement under Section 164 of the Code of Criminal Procedure that she had learnt of the incident about a month prior to the date of giving such statement that is November 12 2015. From the FIR the alleged date of occurrence has been mentioned as between October 31 2015 and November 9 2015 and the information received by thepolice station was on November 10 2015. 9. Hence it is submitted that there is inherent discrepancy between the versions of PW1 and PW2 as far as the date of knowledge of PW2 regarding the incident is concerned. 10. Learned counsel for the appellant further places reliance on Ravinder Singh Gorkhi Vs. State of U.P. reported at5 SCC 584 tocontend that the yardsticks of the JJ Act were also applicable in case of complaints along with Section 35 of the Evidence Act 1872. It is contended that certain conditions are to be fulfilled before a document is held to be admissible under Section 35 of the Evidence Act. It is submitted that the criteria as stipulated in Section 35 have not been fulfilled at all in the present case thereby leaving altogether no scope of applicability of the POCSO Act let alone Section 29 of the said Act to cast the burden of proving his innocence on the accused. 11. Learned counsel next contends that admittedly there was an affair going on between the accused who was aged about 20 years and the victim who was allegedly 17 years 5 months old at the relevant point of time as corroborated both by PW1 and PW2. 12. By placing reliance on the evidence of PW15 the doctor it is pointed out that the doctor specifically stated that vaginal swab was taken and handed over to escort party and that no injury mark was noted in the private part or other parts of the victim’s body nor was any foreign body found in her private part. However it appears from Exhibit 7 the report that no vaginal swab could be collected due to delay. Such statements are contradictory to each other and demolish the prosecution case on the counts of Section 376 of the IPC as well as Section 4 of the POCSO Act. In the event such swab was collected the same should have been produced before the Court which was not done in the present case. 13. Learned counsel goes on to argue by placing reliance on the judgment rendered by a Division Bench of the Sikkim High Court reported at 2018 SCC OnLineSikk 215 that the test under Section 35 of the Evidence Act was also relied on in the said case while discussing the probative value of public documents in evidence. It is further argued on behalf of the appellant that PW13 who accompanied the victim to the hospital for her medical examination on November 10 2015 did not state anything in her evidence regarding having collected any vaginal swab. 15. Thus it is evident that the evidence of the doctor the medical report and the evidence of PW13 the escort of the victim of the hospital militate against each other. In view of the above circumstances it is contended that sufficient doubt is cast on the prosecution case which hits at the root of its 17. Learned counsel for the appellant submits that in the cross examination of DW1 the father of the victim a clear suggestion was put to the DW1 that a hot altercation had taken place between the daughter and the accused regarding “Denapaona” of marriage. It was admitted by DW1 that after the hot altercation the victim and her mother lodged written complaint before the police station as per instruction of villagers. 18. Thus it is clear that the belated lodging of complaint was merely an afterthought as a back lash of the admitted altercation which had taken place between the victim and the accused regarding the conditions of marriage which also vitiates the prosecution case. 19. Learned counsel appearing for the State contends that the Trial Judge in the impugned judgment clearly indicated that the Admit Card of the victim was shown to the Court which reflected that the date of birth of the victim was May 30 1998. Hence a presumption under Section 29 can easily be attached to the accused shifting the burden on the accused to prove his innocence. The statement of the victim under Section 164 CrPC also shows that the victim was 17 years 10 months on the date of such statement that is April 12 2016 and was a minor at the time of the alleged incident. By placing reliance on the evidence adduced by PW10 and PW12 the doctors learned counsel for the States argues both indicate that the victim was aged about 17 years at the time when she was taken to the hospital for medical examinations. 20. As such there cannot be any doubt that the Trial Judge was justified in applying the provisions of the POCSO Act to the victim who was a ‘child’ within the definition of said Act. 21. Learned counsel for the State submits that there is sufficient corroborative evidence on record to prove the prosecution case. 22. Upon hearing learned counsel for both sides as well as on going through the materials on record the yardsticks of the JJ Act and the Rules which are according to the Supreme Court as per the judgments cited by the appellant applicable even for ascertainment of the age of victims were not satisfied in the instant case. Not only any document regarding the age of the victim was produced in evidence in accordance with law no ossification test was conducted to ascertain the age of the victim. The finding of the learned Trial Judge that the date of birth of the victim was May 30 1998 is not borne out by any of the materials on record. Although it is mentioned by the learned trial Judge that the victim had an Admit Card to show her date of birth no such document has been marked as exhibit in the present case. Moreover the yardsticks of Section35 of the Evidence Act were not compliedat all in the present case. Unless proved in accordance with law no document including the purported Admit Card could even be looked into by the Trial Judge since there was no probative value of such document even if handed over during trial to the court below. The findings of the doctors regarding the age of the victim were cursory mentions in all probability on the basis of the victim’s own submission and not based on any valid medical examination to ascertain the age. 23. Hence since the age of the victim was in any event above 17 years at the relevant juncture it is doubtful as to whether the provisions of the POCSO Act could at all be attracted in the present case since there was no formal proof on record to indicate that the victim was a minor at the relevant juncture. The age of 17 and above based on assumptions and bereft of supporting documents gives rise to sufficient doubt as to whether the victim had already attained majority at the relevant juncture thereby obviating the applicability of the POCSO Act itself and not only Sections 29 and 30 thereof. 24. As far as the allegations under Section 376 of the IPC and Section 4 of the POCSO Act are concerned both Section 375 IPC which defines ‘rape’ and Section 3 of the POCSO Act which defines “penetrative sexual assault” make it a prerequisite for the accused to have “penetrated” the vagina or any other part of the body of the victim. 25. However the expression “penetrates” as used in both Section 375(a) of the IPC and Section 3(a) of the POCSO Act has to be construed as a unilateral act on the part of the accused. The psyche and mental maturity of the victim at the relevant point of time ought also to be looked into to ascertain as to whether the alleged act of sexual intercourse between the accused and the victim if true was participatory from both ends or a unilateral assertive act of the accused sufficient to be an offence of the accused alone under the aforementioned provisions of law. 26. The mere contours of the anatomy of the sexual organs of a male and a female cannot be sufficient to presume that any sexual union between two sufficiently mature persons was a unilateral act of the accused and not participatory. In the present case the victim was aged more than 17 yearsof the IPC and Section 39of the POCSO Act would lead to the absurd presumption that even if the sexual union between two persons of sufficient maturity was participatory in nature only the male should be held guilty of such offence. 29. Modern concepts of penology discard the retributive aspect of punishment and highlight the deterrent factor which is evident from the evolution of ‘jails’ ‘prisons’ into “Correctional Homes”. Thus mere refusal to marry that too at a stage subsequent to the alleged incident cannot be a handle to incriminate the appellant on the charges clamped against him particularly keeping in view the antecedents of the accused and admitted previous physical and romantic relationship between the alleged victim and the accused. This would frustrate the purpose of the POCSO Act as well as the jurisprudence behind the IPC and lead to unscrupulous abuse of the said statutes at the drop of a hat. 30. Undoubtedly the said proposition has to be taken with a pinch of salt as is the cut off mark of 18 years to come within the purview of “child” as defined in the POCSO Act. To ascertain whether the act was unilateral or participatory is essential along with the level of maturity and psyche of the victim as well as the accused before convicting the accused under such serious allegations of rape and penetrative sexual assault which might ruin an otherwise bright career at the bud. It is evident from the depositions of the mother of the victim as well as the victim herself as corroborated by the father of the victim that the complaint was a mere backlash due to the altercation regarding the conditions of marriage and could not be construed to have convincingly prove commission of offences under Section 376 of the IPC or Section 4 of the POCSO Act. As far as Section 417 of the CrPC is concerned the same provides for punishment for ‘cheating’ which term has been defined in Section 415 of the IPC. However it is well settled that the prosecution has to establish any intention of cheating on the part of the accused at the juncture when the alleged offence was committed. Subsequent refusal to marry cannot be come within the purview of cheating on the premise that the accused resiled from his previous intention to marry subsequently.There is no evidence on record at all to show that the accused hadunilaterally perpetrated the offences alleged with the deliberate intention to deceive the alleged victim at the relevant point of time when the alleged offence took place. Hence the conviction of the accused under Section 417 of the IPC also fails. In such view of the matter CRA No.209 of 2017 is allowed thereby setting aside the judgment and orders of conviction and sentence dated February 7 2017 and February 8 2017 passed by the Additional District and Sessions Judge Second Court atKrishnanagar District Nadia in Sessions Trial No.IX(III) 2016. The appellant is hereby acquitted of all the charges and shall immediately be released if in custody. The appellant is further discharged from any condition or bond if furnished by the appellant in connection with any order of bail obtained by the appellant at any point of time. 34. The parties as well as all concerned shall act on the server copy of this order without insisting upon prior production of a certified copy Sabyasachi Bhattacharyya J. )

Liberal consideration in applications for condonation of delay does not include insufficient cause, negligence and unreasonable delay: Bombay High Court

Judicial discretion cannot be so liberally exercised as to condone the delay where no cause is made out or the cause ascribed is unworthy of acceptance since paramount consideration while determining an application for condonation of delay remains the advancement of the cause of substantive justice and not allowing the procedure to merely score a march over substantive justice, yet, the sufficiency of cause and explanation for delay warrant consideration. This remarkable judgment was passed by the Bombay High Court in the matter of GOVIND S/O GANGADHAR JAGALPURE V LAXMIBAI W/O BABURAO PAWAR AND ORS. [WRIT PETITION NO. 8337 OF 2018] by Honourable Justice N.J. Jamadar. The challenge in this petition is to the judgment and order dated passed by learned District Judge, Udgir, in Misc. Civil Appeal No. 7 of 2015, whereby he dismissed the appeal and upheld the common order of Civil Judge to dismiss the application for condonation of delay. The background facts leading to this petition are, the father of the petitioner, Late Gangadhar Jagalpure, had instituted a suit against respondents seeking a declaration that the registered sale deed executed in favour of respondent No.1 was void and not binding. It was averred that respondents had fraudulently got the sale deed executed by him by taking undue advantage of his physical condition and the trust and confidence which he had reposed in them. It is to be noted that Gangadhar died in 2002 leaving behind the petitioner, co-applicant Panurang, and respondents No. 5 to 7 as his legal representatives. Since the applicant was unaware about the suit land being in possession of Respondent, he filed a Civil Application for setting aside the order of abatement which was resisted by them since they contended that the application cannot be entertained as there was no prayer for condonation of delay. Hence, the aggrieved applicant invoked the writ jurisdiction of this Court. It was noted that late Gangadhar died on 11th May 2002 but the application for setting aside the abatement was preferred in 2008 whereas the application for condonation of delay in taking out the said application for setting aside the abatement was preferred in 2014. In this regard, the Court observed that late Gangadhar and his legal representatives were estranged and, thus, the applicants were not aware of the institution of the said suit thus the “The legal position is fairly crystallized to the effect that the expression ‘sufficient cause’ within the meaning of section 5 of the Limitation Act 1963 or under Order XXII of the Code or any other like provision ought to receive a liberal consideration so as to advance the cause of substantial justice. Where no negligence or inaction or want of bonafide can be imputed to a party, normally the discretion ought to be exercised in favour of the party seeking condonation of delay. At the same time, Court should be alive to the fact that by allowing the proceeding to abate, a valuable right has accrued to the other party which ought not to be defeated by condoning the delay in a routine fashion.” On the basis of the facts and circumstances of the case, the court asserted that “the claim of the applicants that they were unaware of the institution of the suit itself pales insignificance. Since Pandurang had instituted the suit for partition against late Gangadhar, but the petitioner also had instituted a suit for partition, which was eventually dismissed. In the circumstances, the Courts below cannot be said to have committed an error in arriving at a finding that the cause sought to be ascribed by the applicants was not sufficient.” The court relied on Supreme Court cases; Balwant Singh (dead) Vs. Jagdish Singh and others, 2010(8) SCC 685 and cautioned against construing the provisions of the Order XXII of the Code and Section 5 of the Limitation Act in such a manner as to render them redundant and inoperative. Hence, it was stated that “paramount consideration while determining an application for condonation of delay is necessary for the advancement of substantive justice yet, the sufficiency of cause and explanation for delay warrant consideration.”

on 06 04 2021 on 15 04 1 W.P. No. 8337 2018 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 8337 OF 2018Govind S o Gangadhar Jagalpure age 65 years occupation agriculture R o Gudsoor Taluka Udgir Dist. Latur at present Vikas Nagar Degloor road Udgir Taluka Udgir District Latur. ...Petitioner VERSUS1.Laxmibai W o Baburao Pawar @ Upase age 55 years occupation household 2.Baburao S o Ramchandra Pawar @ Upaseage 65 years occupation agriculture3.Dhanraj S o Ramdas Upase age 18 years occupation agriculture4.Balappa S o Rajkumar Upase age 19 years occupation agriculture 5.Tulshidas S o Gangadhar Jagalpure age 50 years occupation agricultureNos. 1 to 5 R o Gudsoor Taluka Udgir Dist. Latur6.Wanmala W o Udhav Damkondwar age 52 years occupation household R o N.D.2 CIDCO proper Nanded Taluka & District Nanded.7.Shobha W o Vilas Lohgaonkar age 49 years occupation household R o Sonpeth Taluka Sonpeth District Parbhani. on 06 04 2021 on 15 04 2 W.P. No. 8337 2018 8.Tungbhadra W o Venkat Kachawar age 47 years occupation household R o at post Patoda Taluka Naigaon District Nanded. 9.Bharat W o Madhukar Devshetwar age 42 years occupation household R o Janwal Taluka Chakur District Latur. ...RespondentsMr. S.V. Suryawanshi Adv. for petitioner. Mr. A.R. Joshi Advocate for respondents No. 1 to 4 C ORAM : N.J. JAMADAR J. Closed for Judgment on : 17th March 2021 Pronounced on : 6th April 2021JUDGMENT :Rule. Rule made returnable forthwith and with theconsent of the Counsels for the parties heard finally.2.The challenge in this petition is to the judgment andorder dated 21st November 2017 passed by the learned DistrictJudge 1 Udgir in Misc. Civil Appeal No. 15 whereby thelearned District Judge was persuaded to dismiss the appeal anduphold the common order passed by the learned Civil JudeUdgir in Misc. Civil Application No. 08 thereby dismissing theapplication for condonation of delay in taking out the application forsetting aside the abatement of Reg. Civil Suit No. 2600 and on 06 04 2021 on 15 04 3 W.P. No. 8337 2018 also dismissing the application for setting aside the abatement.3.Shorn of unnecessary details the background factsleading to this petition can be stated as under:a)Late Gangadhar Jagalpure was the father of petitionerGovind and co applicant Pandurang and respondents No.5 to 7. LateGangadhar had instituted a suit being Regular Civil Suit No. 262 of2000 against respondents No.1 to 4 seeking a declaration that theregistered sale deed vide No. 3944 dated 8th July 1999 executed infavour of respondent No.1 Laxmibai in respect of the ancestralagricultural land bearing survey No. 21 1 admeasuring 5H. 51Rwas void and not binding upon him. It was inter alia averred that respondent No.1 Laxmibai and respondent No.2Baburao had fraudulently got the sale deed executed by lateGangadhar by taking undue advantage of his physical condition andthe trust and confidence which the late Gangadhar had reposed inthem. Gangadhar died on 11th May 2002 leaving behind thepetitioner co applicant Panurang and respondents No. 5 to 7 as hislegal representatives. b)During the life time of Gangadhar the relations betweenlate Gangadhar and the applicants on the one hand and the on 06 04 2021 on 15 04 4 W.P. No. 8337 2018 applicants and respondents No. 5 to 7 on the other hand were notcordial. Deceased Gangadhar was suffering from a serious disease.Thus the applicants were unaware of the institution of the said suit.c)On 3rd January 2008 when the petitioner visited the suitland respondent No.1 Laxmibai obstructed the petitioner fromentering into the suit land as she claimed to have acquired exclusiveownership over the suit land consequent to the dismissal of Reg.Civil Suit No. 262 2000 as having been abated. Thereupon theapplicants obtained the necessary information about the said suitand filed Misc. Civil Application No. 08 for setting aside theorder of abatement dated 3rd April 2006.d)Respondents No. 1 to 4 resisted the application forsetting aside the abatement. It was inter alia contended that theapplication cannot be entertained as there was no prayer forcondonation of delay. Thereupon on 7th October 2014 the applicantstook out a separate applicationseeking condonation ofdelay in taking out the application for setting aside abatement andbringing the legal representatives of deceased plaintiff on record.e)The learned Civil Judge after appraisal of the rivalpleadings and material in support of and in opposition to the prayerfor condonation of delay and setting aside abatement was on 06 04 2021 on 15 04 5 W.P. No. 8337 2018 persuaded to reject both the applications for condonation of delayand for setting aside the abatement by order dated 21st January2015 opining that the applicant had failed to make out a sufficientcause for condonation of almost 12 years delay. The reasonassigned by the applicants that they were unaware of institution ofReg. Civil Suit No. 2600 filed by deceased Gangadhar wasfound to be unworthy of acceptance.f)Being aggrieved the petitioner herein preferred Misc.Civil Appeal No. 15 before the District Court. By theimpugned judgment and order dated 21st of November 2017 thelearned District Judge was persuaded to dismiss the appealconcurring with the view of the trial Court that theapplicants appellants had failed to make out a sufficient cause forcondonation of delay in taking out the application for setting asideabatement and also for setting aside the abatement. Hence thepetitioner applicant No.1 has invoked the writ jurisdiction of thisCourt.4.I have heard Mr. S.V. Suryawanshi the learned Counselfor the petitioner and Mr. A.R. Joshi the learned Counsel forrespondents No.1 to 4 at some length. With the assistance of thelearned Counsels I have perused the material on record. on 06 04 2021 on 15 04 6 W.P. No. 8337 2018 5.Mr. Suryawanshi the learned Counsel for the petitioner strenuously urged that the learned District Judge as well as thelearned Civil Judge have adopted a very pedantic approach. In theprocess the trial Court as well as the Appellate Court lost sight ofthe time tested principle that an application for condonation of delay especially in taking out the application for setting aside abatement ought to receive liberal consideration and discretion has to beexercised so as to advance the cause of substantive justice. As theapplicants had assigned justifiable reason of being unaware of theinstitution of the suit by their late father the Courts below accordingto Mr. Suryawansbhi committed manifest error in declining toexercise the discretion to condone delay and set aside theabatement and thereby deprived the petitioner applicant of thevaluable rights in the suit property. Therefore it is necessary toexercise extra ordinary jurisdiction to correct the errors into whichthe Courts below have fallen urged Mr. Suryawanshi. 6.Per contra Mr. Joshi the learned Counsel forrespondents No.1 to 4 stoutly submitted that the applicants wereguilty of suppression of facts. The material on record indicates thatthe claim of the applicants that they were unaware of the institutionof the suit by their late father was demonstrably false. The assertion on 06 04 2021 on 15 04 7 W.P. No. 8337 2018 of the applicants that they became aware of the institution anddisposal of the suit by late Gangadhar only when respondent No.1allegedly obstructed applicant No.1 Govind from entering into thesuit land is belied by the pleadings and proceedings in Reg. Civil SuitNo. 1697 instituted by co applicant Pandurang and to whichthe applicant petitioner Govind was a party defendant. The suit landi.e. survey No. 21 1 was the subject matter of the said suit as welland respondent No.1 herein was impleaded as a party defendant tothe said suit in her capacity of transferee of the suit land from lateGangadhar under the sale deed dated 8th July 1999 and the plaintcame to be amended to seek a declaration that the said sale deedwas not binding on the share of plaintiff Pandurang. Thus the trialCourt and the Appellate Court were wholly justified in dismissing theapplication for condonation of delay and for setting aside theabatement submitted Mr. Joshi.7.To begin with it may be advantageous to note few un controverted facts. The relationship between late Gangadhar thepetitioner co applicant Pandurang and respondents No. 5 to 7 is notin dispute. It is incontestable that co applicant Pandurang hadinstituted Reg. Civil Suit No. 163 1997 against late Gangadhar petitioner Govind and respondents No. 5 to 7 for partition and on 06 04 2021 on 15 04 8 W.P. No. 8337 2018 separate possession of the joint family properties includingagricultural land bearing survey No. 21 1 the suit land herein. Inthe said suit petitioner Govind had filed a written statement wherein the fact that the petitioner had also instituted a suit forpartition of the joint family property was admitted.8.Respondent No.5 Tulshidas defendant No.3 therein hadfiled an application for addition of the parties as portions of the suitproperties therein were alienated during the pendency of the saidsuit. Respondent No.1 Laxmibai was also sought to be impleaded asparty defendant. Likewise co applicant Pandurang had filed anapplication for impleading respondent No.1 Laxmibai as a partydefendant with the assertion that late Gangadhar defendant No.1therein had executed a sham sale deed in favour of respondent No.1on 8th July 1999. Both these applications were allowed and thetransferees including respondent No.1 Laxmibai were impleaded asparty defendants. Moreover by way of amendment co applicantPandurang sought a declaration that the said sale deed did not bindthe share of the plaintiff in the suit land. Indisputably lateGangadhar also instituted suit being Reg. Civil Suit No. 2600against respondents No.1 to 4 with the averments that the sale deedin respect of suit land was fraudulently got executed from him and it on 06 04 2021 on 15 04 9 W.P. No. 8337 2018 was void and not binding upon him. 9.In the backdrop of aforesaid facts it is necessary to notethat there is not much controversy over the fact that late Gangadhardied on 11th May 2002. The application for setting aside theabatement was preferred by the petitioner and co applicantpandurang on 16th January 2008. Indisputably the application forcondonation of delay in taking out the said application for settingaside the abatementwas preferred on 7th October 2014. 10.From a meaningful reading of the application to set asidethe abatement it becomes evident that it proceeds on a singularpremise that deceased Gangadhar was suffering from a virulentdisease and late Gangadhar and his legal representatives wereestranged and thus the applicants were not aware of the institutionof the said suit. The trial Court and the Appellate Court were of theview that the said reason ascribed by the applicant did not meritacceptance as a sufficient cause for condonation of delay.11.The learned Counsel for the petitioner would urge thatthe aforesaid approach of the Courts below is not in consonance withlaw. It was submitted that the Courts ought to have taken a liberalview of the matter so that the cause of substantive justice is on 06 04 2021 on 15 04 10 W.P. No. 8337 2018 advanced. In order to lend support to this submission Mr.Suryawanshi placed a very strong reliance on the judgment of aDivision Bench of this Court in the case of Keshao s o Kawadu Maraland another Vs. State of Maharashtra and others 2005(1)Mh.L.J.1059 wherein emphasizing the nature of theprovisions under Order XXII of the Code of Civil Procedure 1908 which are essentially procedural and thus required to be construedas handmaid of justice the Division Bench observed as under:“8. We are of the view that the order passedby the learned Single Judge is unsustainable inlaw. The delay in taking out the application has tobe computed from the date of knowledge of thedeath of a party. It is the case of the appellantsthat they had no knowledge and as soon as theyacquired knowledge they took out application forbringing legal heirs on record. This aspect asregards knowledge is not seriously disputed bythe respondent. Secondly it is now well settledthat the provisions of Order 22 Rule 1 CivilProcedure Code are not penal in nature. It is arule of procedure and substantial rights of theparties cannot be defeated by pedantic approachby observing strict adherence to the proceduralaspect of law. In the aforesaid circumstances weare of the view that the learned Single Judge wasin error in refusing to use discretion vested in him on 06 04 2021 on 15 04 11 W.P. No. 8337 2018 for condoning delay in taking out application forbringing legal heirs on record. Even if proceedingabates the Court has ample powers to set asidethe abatement and condone the delay to bringlegal heirs on record.”12.A strong reliance was also placed on the judgment of theSupreme Court in Perumon Bhagvathy Devaswom Perinadu VillageVs. Bhargavi Ammaby L.Rs. and others 2009(2) Mh.L.J. 1 wherein the Supreme Court after an elaborate discussion on theapproach to be adopted in considering applications for condonationof delay especially in the context of the delay in bringing on recordthe legal representatives of a deceased party summarized theprinciples as under: “ 8. The principles applicable in consideringapplications for setting aside abatement may thusbe summarized as follows :The words "sufficient cause for not making theapplication within the period of limitation" shouldbe understood and applied in a reasonable pragmatic practical and liberal manner depending upon the facts and circumstances ofthe case and the type of case. The words‘sufficient cause in section 5 of Limitation Actshould receive a liberal construction so as toadvance substantial justice when the delay is not on 06 04 2021 on 15 04 12 W.P. No. 8337 2018 on account of any dilatory tactics want of bonafides deliberate inaction or negligence on thepart of the appellant.In considering the reasons for condonation ofdelay the courts are more liberal with referenceto applications for setting aside abatement thanother cases. While the court will have to keep inview that a valuable right accrues to the legalrepresentatives of the deceased respondent whenthe appeal abates it will not punish an appellantwith foreclosure of the appeal for unintendedlapses. The courts tend to set aside abatementand decide the matter on merits rather thanterminate the appeal on the ground of abatement.(iii) The decisive factor in condonation of delay isnot the length of delay but sufficiency of asatisfactory explanation.The extent or degree of leniency to be shownby a court depends on the nature of applicationand facts and circumstances of the case. Forexample courts view delays in makingapplications in a pending appeal more lenientlythan delays in the institution of an appeal. Thecourts view applications relating to lawyer slapses more leniently than applications relating tolitigant s lapses. The classic example is thedifference in approach of courts to applications forcondonation of delay in filing an appeal andapplications for condonation of delay in refiling on 06 04 2021 on 15 04 13 W.P. No. 8337 2018 the appeal after rectification of defects.Want of ‘diligence or ‘inaction can beattributed to an appellant only when somethingrequired to be done by him is not done. Whennothing is required to be done courts do notexpect the appellant to be diligent. Where anappeal is admitted by the High Court and is notexpected to be listed for final hearing for a fewyears an appellant is not expected to visit thecourt or his lawyer every few weeks to ascertainthe position nor keep checking whether thecontesting respondent is alive. He merely awaitsthe call or information from his counsel about thelisting of the appeal. ”13.Placing reliance on the aforesaid enunciation of law Mr.Suryawanshi the learned Counsel for the petitioner urged with adegree of vehemence that the Courts below did not adhere to any ofthe aforesaid principles and were unduly influenced by the fact thatthere was delay of about six years in taking out the application forsetting aside the abatement and initially it was not accompanied byan application for condonation of delay. The fact that a formalapplication for condonation of delaycame to be filed in theyear 2014 could not have been accorded undue weight urged Mr.Suryawanshi. on 06 04 2021 on 15 04 14 W.P. No. 8337 2018 14.The legal position is fairly crystallized to the effect thatthe expression ‘sufficient cause’ within the meaning of section 5 ofthe Limitation Act 1963 or under Order XXII of the Code or any otherlike provision ought to receive a liberal consideration so as toadvance the cause of substantial justice when no negligence orinaction or want of bonafide is attributable to a party. In the verynature of things whether the explanation furnished in a given case would constitute a ‘sufficient cause’ depends on the facts of thecase. Though no straight jacket formula can be devised yet theCourts ought not to proceed with a presumption against sufficiencyof the cause and consider the explanation through the prism offinding fault. Where no negligence or inaction or want of bonafidecan be imputed to a party normally the discretion ought to beexercised in favour of the party seeking condonation of delay. At thesame time Court should be alive to the fact that by allowingproceeding to abate a valuable right has accrued to the other partywhich ought not to be defeated by condoning the delay in a routinefashion. Thus the courts have to strike a balance between thecompetitive interests of advancing cause of substantive justice bycondoning the delay and that of not depriving a party of an accruedright where a clear case of negligence and inaction is made out. on 06 04 2021 on 15 04 15 W.P. No. 8337 2018 15.In the case at hand on a careful analysis of the material the singular reason ascribed by the applicants that they wereunaware of the institution of the suit by late Gangadhar and thatthey became aware of the proprietory title which respondent No.1Laxmibai professed to exercise over the suit land in the year 2008only does not appear to be worthy of acceptance. Indubitably co applicant pandurang had instituted Reg. Civil Suit No. 163 1997much prior in point of time to the suit instituted by late Gangadharand had sought general partition of the joint family propertiesincluding survey No. 21 1Supreme Court Cases 685 on 06 04 2021 on 15 04 17 W.P. No. 8337 2018 wherein after adverting to a number of precedents including thejudgment in the case of Perumon Bhagwathy Devaswom the Supreme Court cautioned against construing the provisions ofthe Order XXII of the Code and Section 5 of the Limitation Act insuch a manner as to render them redundant and inoperative.18.The observations of the Supreme Court in paragraphs 32to 35 and 38 are instructive. They read as under:“ 32. It must be kept in mind that whenever alaw is enacted by the legislature it is intended tobe enforced in its proper perspective. It is anequally settled principle of law that the provisionsof a statute including every word have to begiven full effect keeping the legislative intent inmind in order to ensure that the projected objectis achieved. In other words no provisions can betreated to have been enacted purposelessly. 33.Furthermore it is also a well settledcanon of interpretative jurisprudence that theCourt should not give such an interpretation tothe provisions which would render the provisionineffective or odious. Once the legislature hasenacted the provisions of Order 22 with particularreference to Rule 9 and the provisions of theLimitation Act are applied to the entertainment ofsuch an application all these provisions have tobe given their true and correct meaning and must on 06 04 2021 on 15 04 18 W.P. No. 8337 2018 be applied wherever called for. If we accept thecontention of the Learned Counsel appearing forthe applicant that the Court should take a veryliberal approach and interpret these provisions(Order 22 Rule 9 CPC and Section 5 of theLimitation Act) in such a manner and so liberally irrespective of the period of delay it wouldamount to practically rendering all theseprovisions redundant and inoperative. Suchapproach or interpretation would hardly bepermissible in law.34.Liberal construction of the expression‘sufficient cause is intended to advancesubstantial justice which itself presupposes nonegligence or inaction on the part of theapplicant to whom want of bona fide isimputable. There can be instances where theCourt should condone the delay equally therewould be cases where the Court must exercise itsdiscretion against the applicant for want of any ofthese ingredients or where it does not reflect“sufficient cause” as understood in law.(Advanced Law Lexicon P. Ramanatha Aiyar 2ndEdition 1997).35.The expression “sufficient cause” impliesthe presence of legal and adequate reasons. Theword “sufficient” means adequate enough asmuch as may be necessary to answer the purposeintended. It embraces no more than that which on 06 04 2021 on 15 04 19 W.P. No. 8337 2018 provides a plentitude which when done sufficesto accomplish the purpose intended in the light ofexisting circumstances and when viewed from thereasonable standard of practical and cautiousmen. The sufficient cause should be such as itwould persuade the Court in exercise of itsjudicial discretion to treat the delay as anexcusable one. These provisions give the Courtsenough power and discretion to apply a law in ameaningful manner while assuring that thepurpose of enacting such a law does not standfrustrated.36. ….37. ….38. Above are the principles which shouldcontrol the exercise of judicial discretion vested inthe Court under these provisions. The explaineddelay should be clearly understood incontradistinction to inordinate unexplained delay.Delay is just one of the ingredients which has tobe considered by the Court. In addition to this theCourt must also take into account the conduct ofthe parties bona fide reasons for condonation ofdelay and whether such delay could easily beavoided by the applicant acting with normal careand caution. The statutory provisions mandatethat applications for condonation of delay andapplications belatedly filed beyond the prescribedperiod of limitation for bringing the legal on 06 04 2021 on 15 04 20 W.P. No. 8337 2018 representatives on record should be rejectedunless sufficient cause is shown for condonationof delay. The larger benches as well as equi benches of this Court have consistently followedthese principles and have either allowed ordeclined to condone the delay in filing suchapplications. Thus it is the requirement of lawthat these applications cannot be allowed as amatter of right and even in a routine manner. Anapplicant must essentially satisfy the abovestated ingredients then alone the Court would beinclined to condone the delay in the filing of suchapplications.” 19.From the aforesaid exposition of the law it becomesabundantly clear that though the paramount consideration whiledetermining an application for condonation of delay remains theadvancement of cause of substantive justice and not allowing theprocedure to score a march over substantive justice yet thesufficiency of cause and explanation for delay warrant consideration.Judicial discretion cannot be so liberally exercised as to condone thedelay where no cause is made out or the cause ascribed isdemonstrably unworthy of acceptance. The delay cannot becondoned for mere asking irrespective of the cause shown andinordinateness thereof. on 06 04 2021 on 15 04 21 W.P. No. 8337 2018 20.On the aforesaid touchstone re adverting to facts of thecase I am of the considered view that the Courts below werejustified in refusing to exercise the discretion. From the ownshowing of the applicants the cause assigned for the delay did notappear reasonable and betrayed inaction and negligence borderingon taking a ground which was incorrect to their knowledge.21.The upshot of aforesaid consideration is that nointerference is warranted in the impugned judgment and order.Resultantly the petition deserves to be dismissed. Hence thefollowing order. O R D E RThe petition stands dismissed. No costs.Rule discharged. JUDGEMadkar

The same objection cannot be raised twice, heard twice and adjudicated again.: Delhi High Court

Even if the same is not treated as res-judicata, the judgment of the ld. Single Judge can be read in evidence before the Labour Court, and can be considered even at the preliminary stage as a judgment which is of relevance as held by the Hon’ble High Court of Delhi through the learned bench led by Justice Pratibha M. Singh in the case of Pratap Singh and Ors. v. Jaspal Kaur Public School and Anr. (W.P.(C) 9182/2019 & CM APPLs. 525/2020, 526/2020). The present petitions have been filed challenging the impugned orders dated 3rd May 2019, passed by the Presiding Officer, Labour Court, New Delhi, vide which, the applications filed by the Management for rejecting the claim of the Workmen have been allowed, and the claims of the workmen have been dismissed as not maintainable. Ld. counsel for the Petitioners submits that the Petitioners have been non-suited on the ground of res-judicata. He submits that the Labour Court could not have considered the said plea of res-judicata at the initial stage. Ld. Counsel relies upon the judgment of the Supreme Court in Srihari Hanumandas Totala v. Hemant Vithal Kamat and Ors., to argue that res-judicata ought to be a plea which should have been considered after all the pleadings are complete and issues are framed in the matter before the Labour Court. Ld. Counsel appearing for the Respondent-School has, on the other hand, taken the Court through the previous round of proceedings before the Education Tribunal and the resultant orders passed in the writ petition titled Rampal Singh v. The Director of Education and Anr., to argue that the question of retrenchment under Section 25F of the Industrial Disputes Act, 1947 1947, has already been adjudicated by this Court. He submitted that the same ground which is sought to be alleged in these writ petitions, has already been raised, considered and decided. According to him, the Petitioners are attempting to obtain a second chance in respect of the same very objections to argue that the retrenchment is illegal, and the Labour Court has rightly held that the claims of the Workman are not maintainable. After the perusal of the facts and arguments, the Hon’ble Court held, “In any event, the liberty to withdraw, which was granted to the Appellants, was to be exercised in accordance with law. The order passed by the ld. Single Judge is clear and categorical to the effect that there was complete compliance of Section 25F of the Act. The ld. Single Judge has given clear findings to the effect that compensation has been paid and the amounts of the compensation have also been mentioned. They were given proper notice and all the requirements were complied with. In fact, the pleadings of the Petitioners have also been extracted to show the fact that compliance of 25F of the Act has been done, and the same was even not denied by the Petitioners herein. Under these circumstances, in view of the order of the ld. Single Judge of this Court dated 19th May 2017, the retrenchment having been held to be in compliance with Section 25F of the Act, the present petitions challenging the impugned order would not be maintainable. The impugned order is correct and does not warrant any interference.”

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

If investigation not completed within 90 days, the custody of an accused under Unlawful Activities Act can be extended up to 180 days: High Court of J&K and Ladakh

Section 43D(2) of Unlawful Activities (Prevention) Act read into Section 167 of the Cr.P.C in its application to cases for offences relating to ULA(P)Act, lays down that if it is not possible to complete the investigation within 90 days, the custody of an accused alleged to have committed offences under ULA(P) Act can be extended up to 180 days as upheld by the Hon’ble High Court of J&K through a learned bench of Justice Sanjay Dhar in the case of Mujahid Ashraf Khan & Ors Vs Ut Of J&K & Another [CrlA(D) No.13/2021 CrlM No.1096/2021]. In the case, Appellants filed the instant appeal under Section 21 of the National Investigation Act, 2008, challenging judgment and order passed by Special Court for Trial of offences under Unlawful Activities (Prevention) Act, Baramulla whereby application of appellants for grant of bail, for offences under Section 13, 18 and 38 ULA(P), was dismissed. Appellants challenged the impugned order on the grounds that there was no material on record before the learned Special Court to hold that an offence under Section 18 of the ULA(P) Act is made out against the appellants. It was further contended that at the time when the learned Special Court granted extension in period of investigation and detention of appellants/accused beyond 90 days, the appellants/accused had already spent more than 90 days in custody and, as such, they were entitled to grant of default bail. It was also urged that the application for extension of period of investigation has been made by the investigating officer and not by the Public Prosecutor and that there were no reasons, much-less cogent reasons, for granting the extension. Thus, according to the appellants, the grant of extension in period of investigation beyond 90 days in the instant case is without jurisdiction and, as such, the same entitles the appellants to grant of default bail. The Hon’ble High Court considered the question as to whether appellants were entitled to grant of default bail on the ground that charge sheet was not filed by the investigation agency within the prescribed period of 90 days and stated that “In order to test the merits of the argument raised by learned Senior counsel appearing for the appellants, it would be apt to refer to the provisions contained in Section 43D(2) of ULAP Act …………The afore-quoted proviso to sub-section (2), which is to be read into Section 167 of the Cr.P.C in its application to cases for offences relating to ULA(P)Act, lays down that if it is not possible to complete the investigation within 90 days, the custody of an accused alleged to have committed offences under ULA(P) Act can be extended up to 180 days subject to the following conditions: (1) there has to be a report of the Public Prosecutor indicating the progress of investigation; (2) Specific reasons for detention of accused beyond the period of 90 days have to be spelled out”

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Reserved on: 23.11.2021 Pronounced on:25.11.2021 CrlA(D) No.13 2021 CrlM No.1096 2021 MUJAHID ASHRAF KHAN & ORS. ...APPELLANT(S) Through: Mr. Z. A. Qureshi Sr. Advocate With Mr. M. Asif Advocate. UT OF J&K & ANOTHER …RESPONDENT(S) Through: Mr. Sajjad Ashraf GA. HON’BLE MR. JUSTICE ALI MOHAMMAD MAGREY JUDGE HON’BLE MR. JUSTICE SANJAY DHAR JUDGE Appellants have filed the instant appeal under Section 21 of the National Investigation Act 2008 challenging judgment and order dated 19.07.2020 passed by Special Court for Trial of offences under Unlawful ActivitiesAct Baramullawhereby application of appellants for grant of bail in FIR No.21 2021 for offences under Section 13 18 and 38 ULA(P) of P S Sogam has been dismissed. Before coming to the grounds of challenge it would be apt to give a brief background of the facts leading to the filing of this appeal. 2 CrlA(D) No.13 2021 CrlM No.1096 2021 On 06.05.2021 while last rites of one Mohammad Ashraf Khan alias Sehrai were being performed at Village Tekipora Tulkhan within the jurisdiction of Police Station Sogam some unknown persons raised anti national slogans against the sovereignty and integrity of the nation and they also prepared video of the said incident. Police upon receipt of this information registered FIR No.21 2021for offence under Section 13 ULA(P) Act and set the investigation into motion. During investigation of the case involvement of the appellants in commission of offences under Section 13 18 and 38 of ULA(P) Act was disclosed and they were taken into custody on 16.05.2021. During the investigation of the case the appellants moved the Special Court for grant of bail. The application came to be dismissed by the Special Court vide the impugned order dated 19.07.2021. While dismissing the bail application of the appellants the Special Court observed that the bar to grant of bail contained in Section 43 D of ULA(P) Act is attracted to the facts of the case and that investigation of the case is not complete. It is this order which is under challenge before us in the instant appeal. Appellants have challenged the impugned order on the grounds that there was no material on record before the learned Special Court to hold that an offence under Section 18 of the ULA(P) Act is made out against the appellants. It is further contended that at the time when the learned Special Court granted extension in period of investigation and detention of appellants accused beyond 90 days the appellants accused 3 CrlA(D) No.13 2021 CrlM No.1096 2021 had already spent more than 90 days in custody and as such they were entitled to grant of default bail. It is further contended that once the period of 90 days had already expired it was not open to the learned Special Court to even entertain application for extension of period of investigation and detention of accused. It is also urged that extension of period of investigation granted in terms of order dated 14.08.2021 passed by learned Special Court is not in accordance with law inasmuch as the application for extension of period of investigation has been made by the investigating officer and not by the Public Prosecutor and that there were no reasons much less cogent reasons for granting the extension. Thus according to the appellants the grant of extension in period of investigation beyond 90 days in the instant case is without jurisdiction and as such the same entitles the appellants to grant of default bail. record of the case. 5) We have heard learned counsel for the parties and perused the During the pendency of the instant appeal the investigation of the case has been completed and the charge sheet has been filed before the Special Court. Learned Senior counsel appearing for the appellants has submitted that he would like to confine this appeal to the question of grant of bail on the ground of default in filing the charge sheet within 90 days and so far as merits of the bail application are concerned the same would be urged before the learned Special Court if required. 4 CrlA(D) No.13 2021 CrlM No.1096 2021 In view of the aforesaid submission of the learned Senior counsel we are only called upon to consider the question as to whether appellants were entitled to grant of default bail on the ground that charge sheet was not filed by the investigation agency within the prescribed period of 90 days. The appellants accused have been arrested on 16.05.2021. The period of 90 days prescribed for completion of investigation as per provisions contained in Section 167 of Cr. P. C with its modified application to offences under ULA(P)Act expired on 14.08.2021. On the said date the period of detention of appellants accused was extended by the Special Court by 29 days and thereafter from time to time it was extended upto 10.11.2021. The record reveals that charge sheet before the Special Court has been presented on 01.11.2021 which means that the same has been presented within the extended period of It has been vehemently urged by the learned Senior counsel appearing for the appellants that order dated 14.08.2021 of the Special Court whereby the period of investigation was extended beyond 90 days is without jurisdiction and as such the appellants are entitled to grant of default bail. The submission of learned senior counsel is that application for extension of period of investigation has been made by the Investigating Officer and not by the Public Prosecutor as contemplated by the provisions of Section 43 D of ULA(P)Act. It is 5 CrlA(D) No.13 2021 CrlM No.1096 2021 further urged that there were no cogent reasons for the learned Special Judge to grant extension is period of investigation. In order to test the merits of the argument raised by learned Senior counsel appearing for the appellants it would be apt to refer to the provisions contained in Section 43D(2) of ULAP Act: Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that in sub section 2) — the references to “fifteen days” “ninety days” and “sixty days” wherever they occur shall be construed as references to “thirty days” “ninety days” and “ninety days” respectively and b) after the proviso the following provisos shall be inserted namely:— “Provided further that if it is not possible to complete the investigation within the said period of ninety days the Court may if it is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days extend the said period up to one hundred and eighty days: Provided also that if the police officer making the investigation under this Act requests for the purposes of investigation for police custody from judicial custody of any person in judicial custody he shall file an affidavit stating the reasons for doing so and shall also explain the delay if any for requesting such police custody.” 11) The afore quoted proviso to sub sectionwhich is to be read into Section 167 of the Cr.P.C in its application to cases for offences relating to ULA(P)Act lays down that if it is not possible to complete the investigation within 90 days the custody of an accused alleged to 6 CrlA(D) No.13 2021 CrlM No.1096 2021 have committed offences under ULA(P) Act can be extended up to 180 days subject to the following conditions: there has to be a report of the Public Prosecutor indicating the progress of Specific reasons for detention of accused beyond the period of 90 days have to be investigation spelled out. Learned Senior counsel appearing for the appellants had laid much emphasis on the ground that the application for extension in period of custody has to come from Public Prosecutor and not from the Investigating Officer and as such the Special Judge was not within his jurisdiction to pass order dated 14.08.2021. 13) There can be no quarrel with the proposition that a Public Prosecutor in the scheme of the provisions contained in Section 43D of the ULA(P)Act is an important functionary. It is the Public Prosecutor who has to examine the Case Diary and other material whereafter the said authority has to frame its independent opinion as to whether there is any requirement for extension of custody of the accused. The Supreme Court in the case of State of Maharashtra v. Surendra Pundlik Gadling and others 5 SCC 178 has emphasized this aspect of the matter in clear terms. Paras 36 and 37 of judgment gives an idea as to what sort of role a Public Prosecutor has 7 CrlA(D) No.13 2021 CrlM No.1096 2021 to perform while making his report in terms of Section 43D of UAPA Act. The same are reproduced hereunder: “36.No doubt in para 23 of Hitendra Vishnu Thakur case this Court laid emphasis on the importance of the scrutiny by a public prosecutor so as to not leave the detenu in the hands of the IO alone being the police authority. The public prosecutor thus has the option to agree or disagree with the reasons given by the IO for seeking extension of time but in the facts of the present case the second document in the form of an application shows scrutiny of the first document and thereafter details grounds and expanded reasons for the requirement of further time to complete the 37. Undoubtedly the request of an IO for extension of time is not a substitute for the report of the public prosecutor but since we find that there has been as per the comparison of the two documents an application of mind by the public prosecutor as well as an endorsement by him the infirmities in the form should not entitle the respondents to the benefit of a default bail when in substance there has been an application of mind. The detailed grounds certainly fall within the category of “compelling reasons” as enunciated in Sanjay Kedia In the light of aforesaid ratio laid down by Supreme Court and the legal position discussed hereinbefore we need to consider facts of the instant case. It is true that in the instant case application for extension of period of investigation and custody of the accused beyond 90 days has been made by the Investigating Officer before the Special Court. A certified true copy of the said application has been placed on record by the appellants. The appellants have also placed on record a certified true copy of the report of the Public Prosecutor submitted before the Special Court. The report and the application are both dated 14.08.2021. 8 CrlA(D) No.13 2021 CrlM No.1096 2021 15) The requirement of laws as is clear from a bare perusal of the language of sub sectionof Section 43 D of ULA(P) Act is that the Court has to record a satisfaction on the basis of report of the Public Prosecutor indicating the progress of investigation and the reasons for detention of accused beyond the period of 90 days. In the instant case as per appellants own documents there was a report of Public Prosecutor before the Special Court at the time of passing of order dated 14.08.2021. It is not a case where the Special Court has granted extension in period of detention of appellants accused merely on the basis of application made by the Investigating Officer but it is a case where learned Special Court has drawn its satisfaction from the report of the Public Prosecutor which was before it. This becomes clear from the reading of the order dated 14.08.2021 passed by the learned Special Court. The said order bears reference to not only the application of the Investigating Officer but also to the report of the APP. Thus the argument of learned Senior counsel that the order dated 14.08.2021 has been passed merely on the basis of the application of the Investigating Officer is belied by the material on record. It has been next contended by learned Senior counsel appearing for the appellants that the investigation of the case was complete as back as on 15.07.2021 and as such the learned Special Judge while granting extension in period of investigation of the case was not possessed with sufficient reasons to do so. 9 CrlA(D) No.13 2021 CrlM No.1096 2021 17) A perusal of the application for extension of period of investigation filed by the Investigating Officer does reveal that on its part the investigating agency had completed the investigation on 15.07.2021 and had submitted the case for obtaining sanction from the Government but it is also recorded in the application that the file was received back from the higher authorities in terms of communication dated 15.07.2021 with directions to rectify certain observations. This means that the higher authorities were not satisfied with the investigation conducted and certain more aspects of the matter were required to be investigated. The application for extension of investigation as well as the report of the Public Prosecutor indicate that there were certain more aspects of the matter which were required to be investigated. It would be apt to reproduce the relevant excerpts of report of the Public Prosecutor to throw light on this aspect of the matter. ➢ “Since the accused persons have been arrested by making stern efforts by Police SFs and if released on bail at this stage there is every apprehension that they will adopt again work for strengthening the activities of outfit in the area due to which the security & dignity of the State as well as peace loving citizens will be at ➢ That technical opinion is awaited in the case so as to enable the investigating agency to investigate the case further and ascertain and trace the accomplices of the accused. It is further submitted that financial intelligence unithas been approached with the request to provide transaction details of accounts Numbers used by the accused and the report thereof is still awaited. After the report is received the same can be put the analysis to ascertain the rule of accused in providing 10 CrlA(D) No.13 2021 CrlM No.1096 2021 financial aid and sport to various proscribed organizations. The transaction made by accused Mujahid Ashraf through NEFT SBI global line services and NEFT western unit financial services is being ascertained to unravel the conspiracy hatched by the accused. ➢ That sanction for launching prosecution is required to be obtained from the competent authority and investigating agency has to be forwarded designated authority for the purpose and the same is awaited so that charge sheet can be filed in the Hon’ble court.” It is in the light of afore quoted report of the Public Prosecutor that learned Special Judge has noted in his order dated 14.08.2021 that further time is required for culmination of investigation as the retrieved data of seized mobile phones from FSL and transaction details of account numbers of accused persons from Financial Intelligence Unit FIU IND) has not been received so far. Besides this it is also noted in the aforesaid order that the report relating to transactions made with account number of Mujahid Ashraf Khan through NEFT SBI Global Line Services and NEFT Western Unit Financial Services is also awaited. So it is a case where the learned Special Judge has meticulously applied his mind to the report of the Public Prosecutor and thereafter recorded a satisfaction that extension in period of investigation and custody of the appellants accused is absolutely necessary. The order dated 14.08.2021 passed by learned Special Judge is lucid and well reasoned. 19) Even otherwise the appellants have not challenged the validity and legality of the order dated 14.08.2021 passed by the learned Special 11 CrlA(D) No.13 2021 CrlM No.1096 2021 Court whereby their custody has been extended beyond the period of 90 days. Therefore it does not lie in their mouth at this stage to contend that their custody beyond 90 days is not in accordance with law. In fact it appears that the appellants have not even urged the ground of default bail before the Special Court while seeking bail in their favour. 20) Having held that order dated 14.08.2021 whereby period of detention of the appellants has been extended beyond 90 days is in accordance with law the very basis for claiming default bail is knocked 21) For the foregoing reasons we do not find any merit in this appeal. The same is accordingly dismissed. However having regard to the fact that investigation of the case is complete and the charge sheet has already been laid before the learned Special Court we leave it open to the appellants to approach the Special Court for grant of bail on merits in view of the changed circumstances. Sanjay Dhar) Judge Judge Ali Mohammad Magrey) Whether the order is speaking: Yes No Whether the order is reportable: Yes No 25.11.2021 “Bhat Altaf PS”

Reasons are the life blood of every administrative decision and every administrative decision has to be informed by good reason: High Court of Delhi

The reasons for administrative decisions cannot be mala fide, arbitrary, extraneous, illegal, and whimsical as it would violate the Wednesbury principle of Reasonableness and fall foul of Article 14 of the Constitution of India. The question as to importance of providing good reasons for administrative decisions was examined by High Court of Delhi, consisting Justice Vipin Sanghi in the matter of Inituform Pipeline Rehabilitation Private Limited vs. New Delhi Municipal Council [W.P.(C) 6752/2021] on 07.01.2022. The facts of the case are that the petitioner was a provider of trenchless technology-Cured in Placed Pipeline, (“CIPP”). The petitioner was working with organisations like Delhi Jal Board, Delhi Metro Rail Corporation, Uttar Pradesh Jal Nigam and Hyderabad Metropolitan Water Supply and Sewerage Board. On 20.08.2020, the Sewage Maintenance Division, Civil Engineering department of the respondent NDMC issued the NIT inviting bids from “Specialised Agencies” in the field of rehabilitation of old sewer lines by structural lining method. Three bidders, including the petitioner, participated in the tender process, and as per the minutes of Technical Evaluation Sub-Committee held on 08.09.2020, post-technical evaluation, only 2 bidders, namely, the petitioner and Gypsum Structural India Pvt. Ltd. were found eligible and qualified for the next level, i.e. financial bid comparison. The bid of the third bidder, namely, Onsite India Pvt. Ltd. (Onsite), was disqualified by the respondent as, on scrutiny of the EMD documents uploaded by Onsite, it was found that the entire EMD was deposited by Onsite in the shape of Bank Guarantee, which was in breach/noncompliance of technical qualifications. On the recommendation of the Technical Evaluation Sub-Committee of the respondent, financial bids were opened on 10.09.2020 and the petitioner emerged as the lowest bidder. The petitioner, after being declared as the successful bidder, was waiting for the issuance of the work order to commence rehabilitation work. However, on 04.01.2021 the Sewage Maintenance Division (Civil Engineering Department) of the respondent issued a fresh notice inviting tenders, calling for fresh bids in relation to the same project with identical scope of work, and terms and conditions. The Counsel for petitioner contended that the reasons recorded in the minutes of the meeting of 21.05.2021– prompting the Council to cancel the tender, are mala fide, arbitrary and whimsical. It is argued that the tender document clearly required specialised agencies to bid, and it was a specialised work. The Finance Department, as well as the NDMC deliberated the bid of the petitioner and found that the Petitioner’s financial bid to be eligible for the award of the contract, especially since the Respondent has been awarding contracts to entities/ institutions for similar works where the variation is within the permissible limit of 5% of justified rates. It has further been argued by the petitioner that the entire decision making process stands vitiated as one of its members i.e. Mr. Kadian openly had a bias in favour of the disqualified bidder, and against the qualified bidders. It is submitted that Shri Kadian had his way as he succeeded in ensuring cancellation of the tender on completely frivolous grounds. The Counsel for respondent contended that the Council duly applied its collective mind, deliberated the issue and, thereafter, a conscious decision was taken to reject the bids received under the tender in question, and recall the tender. It was contended that the decision to accept or reject the bids, by the tender inviting authority is within the exclusive domain of that authority, and ought not to be interfered by the Court until the same is arbitrary, whimsical or mala fide also the respondent is not bound to accept the lowest bid. It was submitted by respondent that the Council consisted of 13 members, all of whom have collectively taken the decision to cancel the tender and to re-tender the works. Mr. Kadian was only one of the 13 persons and hence, had a miniscule role in the decision making, if at all.

14 IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(C) 6752 2021 and C.M. No. 21272 2021 Judgment reserved on: 29.11.2021 Judgment delivered on: 07.01.2022 INSITUFORM PIPELINE REHABILITATION PRIVATE Through: Mr. Sandeep Grover & Mr. Tarang Petitioner Agarwal Advs. NEW DELHI MUNICIPAL COUNCIL Through: Mr. Anil Grover Standing Counsel Respondent with Mr. Yoginder Handoo ASC and Mr. Ashwin Kataria Adv. HON BLE MR. JUSTICE VIPIN SANGHI HON BLE MR. JUSTICE JASMEET SINGH JUDGMENT OF THE COURT The present petition has been filed by the petitioner seeking substantially the following reliefs: “a. issue a writ of mandamus and or certiorari and or any other appropriate writ order direction in the nature thereof quashing the decision of Respondent taken on 04.06.2021 to cancel the tender pertaining to the Project and all acts actions taken by the Respondent in furtherance thereto and also restrain the Respondent from re tendering inviting fresh bids and or take any further steps actions in relation to the Project in question against the Petitioner: b. issue a writ of mandamus and or any other appropriate the nature Respondent to award the work contract in relation to the Project to the Petitioner in pursuance to the evaluation of Petitioner s bid on 10.09.2020.....” thereof directing W.P.(C) 6752 2021 The petitioner is aggrieved by cancellation of tender pertaining to Rehabilitation of Existing 1100 1200 MM DIA Sewer Line along Ashoka Road from Nirwachan Sadan to C Hexagon which according to the petitioner has been arbitrarily whimsically and mala fidely cancelled. Briefly stating the facts giving rise to the filing of the present petition are as under: The petitioner is a provider of trenchless technology Cured in Placed Pipeline 6752 2021 08.09.2020 post technical evaluation only 2 bidders namely the petitioner and Gypsum Structural India Pvt. Ltd. were found eligible and qualified for the next level i.e. financial bid comparison. The bid of the third bidder namely Onsite India Pvt. Ltd. was disqualified by the respondent as on scrutiny of the EMD documents uploaded by Onsite it was found that the entire EMD was deposited by Onsite in the shape of Bank Guarantee which was in breach non compliance of technical qualifications. On the recommendation of the Technical Evaluation Sub Committee of the respondent financial bids were opened on 10.09.2020 and the petitioner emerged as the lowest bidder of the respondent issued a fresh notice inviting tenders calling for fresh bids in relation to the same project with identical scope of work and terms and conditions. In these circumstances the petitioner being materially aggrieved by the conduct of the respondent filed WP(C) 509 2021 on 13.01.2021 seeking the following reliefs: a. issuance of writ of mandamus and or certiorari and or any other appropriate writ order direction in the nature thereof quashing the impugned notice dated 04.01.2021 issued by the Respondent in relation to the Project and all acts actions taken by the Respondent in furtherance thereto b. issuance of writ of mandamus and or any other appropriate writ order direction in the nature thereof directing the Respondent to award the work contract in relation to the W.P.(C) 6752 2021 Project to the Petitioner in pursuance to the evaluation of Petitioner’s bid on 10.09.2020 c. call for complete records pertaining to the impugned notice dated 04.01.2021 and erstwhile NIT dated 20.08.2020 in relation to the Project including all correspondences communications file notings internal communications etc in relation thereto and......” 9. When the matter came up before this Court on 13.01.2021 this Court restrained the respondent from proceeding with NIT dated 04.01.2021 till the next date of hearing. This Court also directed the respondent to produce original records to show as to what were the reasons for cancelling the NIT dated 22.08.2020 in which the petitioner was an L 1 bidder. 10. From the original records produced by the respondent before this Court it transpired that the respondent Council had held a meeting on 26.12.2020 for considering the award of the tender in favour of the petitioner and the decision taken by the respondent was under: “After due deliberations it was decided by the Council to re tender the case. It is further resolved by the Council that the Department may the anticipation of confirmation of the Minutes.” further necessary action 11. On 22.01.2021 a detailed order was passed by this Court directing the respondent to file a comprehensive affidavit in the matter bringing on record the express reasons for cancellations of the tendering process initiated on 22.08.2020. 12. On 15.02.2021 this Court after detailed hearing found the decision of the Council to re tender the work to be arbitrary. Hence this Court quashed the rejection of petitioner’s bid by the respondent and the W.P.(C) 6752 2021 fresh NIT dated 04.01.2021 and directed the respondent to take a further decision in the matter in accordance with law. 13. The relevant extract of the order dated 15.02.2021 is reproduced as hereunder: 13. It is one thing to say that the employer respondent may not give reasons for rejection of the lowest highest bid as the case may be it is however another thing to say that the respondent was not even obliged to have any reason for coming to such a decision. Every decision of the State has to be implied with reasons. The same cannot be arbitrary whimsical or capricious. It is well settled in law that the validity of any administrative decision must be judged on the basis of reasons existing on record and the authority cannot provide new additional reasons when the Court calls for them as they must necessarily exist on the record when the decision is made. In this regard reference may be made to the decision of the Supreme Court in Mohinder Singh Gill v. Chief Election Commissioner 1 SCC 405). 14. In the present case admittedly the resolution passed by the Council is completely unreasoned. If the recommendation on the file itself had been to reject the petitioner s bid the absence of reasons in the resolution passed by the Council may not have been necessary since the reasons recorded on the file itself could be attributed to the Council and that could explain the non recording of further reasons in the Council s resolutions however in a case where the recommendation on the file was for acceptance of the petitioner s bid and contrary to the said recommendation the Council decides not to accept the bid and re tender the work instead the Council was certainly expected to record its reasons for its said 15. In the light of the aforesaid the decision of the Council to retender the work in its meeting held on 26.12.2020 appears to be arbitrary and cannot be sustained. The same is accordingly set aside. W.P.(C) 6752 2021 16. The rejection of the petitioner s bid on that premise and the retendering of the work vide fresh tender notice dated 04.01.2021 is consequently liable to be quashed and the same are hereby quashed. We however leave it open to the accordance with law. take further decision the matter 17. The petition stands disposed of in the above terms. 14. Since as per the respondent’s own showing the work contained in the tender was an emergency work and of grave importance the petitioner post the decision of 15.02.2021 in WP(C) 509 2021 issued several letters to the respondent requesting the respondent to communicate their decision in line with the directions passed by the 15. On 04.06.2021 almost after 10 months since the bids were invited the respondent cancelled the tender for the project citing the Court. following reasons: “1. The rates of L 1 agency were about 2.34% above the justified rate which is not acceptable by the Council. 2. Rehabilitation of water sewer lines are not specialized but a routine work and hence only 2 bids were found and non competitive in 1st call.” It is in this background the decision of the respondent to re tender the work has been challenged in the present writ petition. 17. When the matter came up on 20.07.2021 while issuing notice we restrained the respondent from awarding the contract for the work in question to any party till the next date. The interim order was continued on 08.09.2021 as well as on 05.10.2021. 18. The respondent has filed a detailed affidavit wherein the respondent W.P.(C) 6752 2021 has reiterated the reasons why the respondent Council had decided in its meeting held on 21.05.2021 to cancel the tender in question. The agenda items and the Council’s decision as seen from the record is reproduced below: 07T M of sewer line in NDMC area. existing 1100 1200 mm dia sewer at Ashoka Road from Nirvachan Sadan to C Hexagon During the last council meeting held on 26.12.2020 rejection could not be recorded. It was deliberated in the Council and again confirmed in the meeting today that the earlier tender has to be rejected and recalled due following reasons: 1. The rates of L 1 agency were about justified rates is not acceptable by 2.34% above 2. Rehabilitation of water sewer lines are not specialised but routine work and hence only 2 bids were found and none competitive in the first the Council resolved that this tender be rejected and recalled immediately. It is further resolved by the Council that NDMC may initiate further necessary action on the decisions taken as above in anticipation of the confirmation of the minutes. The above minutes of the council meeting dated 21.05.2021 will be placed before the next meeting of the Council for confirmation If approved we may return the file to Chif. Engrplease. DEBASHISH SEN GUPTA HEAD ASSISTANT) 02.06.2021 5:33 PM” It has further been argued by the respondent that the Council duly applied its collective mind deliberated the issue and thereafter a W.P.(C) 6752 2021 conscious decision was taken to reject the bids received under the tender in question and recall the tender. It is further argued that the decision to accept or reject the bids by the tender inviting authority is within the exclusive domain of that authority and ought not to be interfered by the Court until the same is arbitrary whimsical or mala fide. Reliance has been placed on Afcons Infrastructure Ltd. vs. Nagpur Metro Rail Corporation Ltd. & Anr. 2016) 16 SCC 818. 21. Clauses 13 and 15 of the tender notice dated 20.08.2021 have also been relied upon which read as under: “13. The competent authority on behalf of the NDMC does not bind itself to accept the lowest or any other bid and reserves to itself the authority to reject any or all the bids received without the assignment of any reason. All bids in which any of the prescribed condition is not fulfilled or any condition including that of conditional rebate is put forth by the bidders shall be summarily rejected. 15. The competent authority on behalf of NDMC reserves to himself the right of accepting the whole or any part of the bid and the bidders shall be bound to perform the same at the rate quoted.” 22. The Respondent Council thus argues that it is not bound to accept the lowest bid and grant the contract. 23. The petitioner has filed a rejoinder and has argued that both the reasons recorded in the minutes of the meeting of 21.05.2021 prompting the Council to cancel the tender are mala fide arbitrary and whimsical. It is argued that the tender document clearly required specialised agencies to bid and it was a specialised work. The Finance Department as well as the NDMC deliberated the bid of the W.P.(C) 6752 2021 petitioner and found that the Petitioner’s financial bid was just above 2.35% of the estimated cost of Rs.16 61 35 617 with quoted value of 17 00 43 000 and 2.34 % above justified cost of Rs. 16 61 52 231 making it eligible for the award of the contract especially since the Respondent has been awarding contracts to entities institutions for similar works where the variation is within the permissible limit of 5% of justified rates. It has further been argued by the petitioner that Mr. Virender Singh Kadian who is a member of the Council had written a letter dated 07.12.2020 pleading the case of the disqualified bidder Onsite and calling upon the Respondent to withdraw the technical objections qua Onsite and open the price bid of Onsite or re invite the tender in question. Shri Virender Kadian also participated in the Council meeting held on 21.05.2021 which has tainted the decision of the Council and hence the entire decision making process stands vitiated as one of its members openly had a bias in favour of the disqualified bidder and against the qualified bidders. It is submitted that Shri Kadian had his way as he succeeded in ensuring cancellation of the tender on completely frivolous grounds. In response learned Counsel for the respondent has submitted that the Council has 13 members all of whom have collectively taken the decision to cancel the tender and to re tender the works. Mr. Kadian was only one of the 13 persons and hence had a miniscule role in the decision making if at all. 26. We have heard Mr. Sandeep Grover for the petitioner and Mr. Anil W.P.(C) 6752 2021 Grover for the respondent. The judgment of Afcons Infrastructure Ltd. vs. Nagpur Metro Rail Corporation Ltd. & Anr.16 SCC 818 is clear unequivocal and unambiguous. The decision of tender floating authority is not to be lightly interfered with by the Courts unless the same is arbitrary whimsical or malafide. The relevant extract of the Afcons judgment is reproduced as under: “11. Recently in Central Coalfields Ltd. v. SLL SML [Central Coalfields Ltd. v. SLL SML Joint Venture Consortium) 8 SCC 622 :4 SCC Civ) 106 :8 Scale 99] it was held by this Court relying on a host of decisions that the decision making process of the employer or owner of the project in accepting or rejecting the bid of a tenderer should not be interfered with. Interference is permissible only if the decision making process is mala fide or is intended to favour someone. Similarly the decision should not be interfered with unless the decision is so arbitrary or irrational that the Court could say that the decision is one which no responsible authority acting reasonably and in accordance with law could have reached. In other words the decision making process or the decision should be perverse and not merely faulty or incorrect or erroneous. No such extreme case was made out by GYT TPL JV in the High Court or before us.” 27. With this background we proceed to examine whether the reasons recorded by the Council on 21.05.2021 which were communicated to the petitioner on 04.06.2021 for cancellation and re tender suffer from arbitrariness mala fides and need interference. The Reason No.1 is reproduced as under: “Reason 1: The Rates of L 1 agency were about 2.34% above the justified rate which is not acceptable by the Council”. 28. We directed production of the original file which was produced before W.P.(C) 6752 2021 AE(P) to us and we have gone through the same. The notings dated 15.09.2020 16.09.2020 25.09.2020 read as under: “ 19 Justification submitted by EE(SM) has been checked and is submitted for further scrutiny in detail by main planning Division. Submitted please. L1 offer of M s Insituform Pipeline Rehabilitation Private Limited may please be accepted which is about 2.32% above the justified cost. Rate of Item No.1 in Delhi Jal Board Justification 0.01 % above the estimated cost has been checked and submitted& EE to accept the work to the lowest agency the lowest agency i.e. M s Insituform Pipeline rehabilitation Pvt. Ltd. who have quoted their rates @ 2.35% above of the EC of W.P.(C) 6752 2021 Rs. 16 61 35 617 with quoted value of Rs 17 00 43 000 . The percentage of tendered of cost over the justified cost of tender i.e. 2.34% above. Accordingly the case is recommended for consideration and acceptance to the lowest agency i.e. M s Insituform Pipcline rehabilitation Pvt. Ltd. who have quoted their rates 2.35% above of the EC of Rs. 16 61 35 617. 30. The Executive Engineer of the NDMC also recommended the bid of the petitioner for acceptance and the operative portion of his file noting reads as under: the above is again recommended “In view of consideration and acceptance of tender of L 1 agency i.e. M s Insituform Pipeline Rehabilitation Pvt. Ltd. who have quoted their rates @ 2.35% above of the estimated cost of Rs. 16 61 35 617 . It is certified that the rates offered by L 1 bidder are reasonable and justified and recommended to acceptance award.” 31. The entire drift of the concerned departments namely the Finance Department and the Executive Engineer of the Respondent NDMC was towards accepting the bid of the Petitioner since the quoted rates though above the estimated cost were well within the 5% variation limit. Neither the minutes of the meeting nor the record produced before us indicates the reasons on which the Council sought to reject the recommendations of the concerned departments. 32. We are not suggesting that the Council is bound in all cases to accept the recommendation on the file made by the concerned authorities. However if the Council was so minded and if it was of the view that W.P.(C) 6752 2021 the rates quoted by the Petitioner were not acceptable for any reason it was necessary for the Council to record its reasons as to why the recommendation of the Finance Department and the Executive Engineer concerned was being differed from. The Council could not have simply stated that the rates quoted by the Petitioner which were 2.34% above the estimated rates were not acceptable when rate variation upto 5% is otherwise acceptable. The reason which seems apparent to us is the influence of Mr. Virender Singh Kadian the member of the Council. On 07.12.2020 Mr. Virender Singh Kadian member of the Council wrote a letter addressed to the Chairman NDMC as well as to Chief Vigilance Officer NDMC which reads as “Ref No. VSK 644 12 20 NDMC Dated 07 Dec 2020 Shri Dharmendra New Delhi Municipal Council 3rd Floor Palika Kendra New Delhi 110001 Subject: Regarding the tender of Rehabilitation of Existing 1100 1200mm dia Sewer line along Ashoka Road from Nirwachan Sadan to C Hexagon 1. I have received representation from Onsite India Private Limited regarding his grievance that the Company has applied for tender of Rehabilitation of Existing 1100 1200 mm dia Sewer line along Ashoka Road from Nirwachan Sadan to C Hexagon which was rejected wrongfully on hyper technical grounds that EMD not submitted in the desired form and therefore price bid was not opened by the Department although the Company has submitted the complete EMD in the shape of Bank guarantee and the same was submitted to the Department in original before submitting W.P.(C) 6752 2021 the online tender. No objection by Department was raised at the time of submission of EMD as per rule generally the Company has to be intimated to remove the technical discrepancy if any. Once the EMD accepted the Department would have opened the price bid for healthy competition in the interest of NDMC. 2. The NDMC has been deprived of better and fair competition by not intimating the technical defect at the time of receipt of EMD due to which most competitive Company has been left out. The matter may be enquired and the dealing Executive Engineer Sewer) of the NDMC may be held responsible for loss to the Department which can only be acknowledged after opening of price bid. The Onsite India Private Limited is most experienced sewer rehabilitation company using CIPP Technology and has completed most difficult projects in the country. The request of the Company to permit removal of technical objection and to open the price bid or to re invite the tender for better and fair competition may be done in the interest of NDMC. Copy to Chief Vigilence Officer New Delhi Municipal Council 3rd Floor Palika Kendra New Delhi 110001 VIRENDER SINGH KADIAN MLA Govt of NCT of Delhi( Delhi Cantt) Member of New Delhi Municipal Council” as follows : In December 2020 the representation of Mr. Kadian was considered on the file and rejected. The relevant extract from the file noting reads “6. The TEC scrutinized the entire bid without prejudice to any agency in a fair & transparent manner strictly as per the NIT stipulation. On the recommendation of TEC bid of technically eligible bidders were opened and M s Insituform Pipelines Rehabilitation Pvt. Ltd. emerged the L 1. Thereafter the case was cleared from Main Planning Division and Finance Department. The case for acceptance of lowest offer will be placed before the Council in its next meeting. W.P.(C) 6752 2021 7. As the bids for the above said work were scrutinized by the Technical Evaluation Sub Committee as per the NIT condition the request of M s Onsite India Pvt. Ltd. to removal of technical objection and to open the price bid or to re invite the tender cannot be opened.” 34. The Superintending Engineer of the Respondent NDMC Shri Ajay Gupta at Note 45 on the file noted as under: “Note # 45 The note of Sh. Anil Grover ASC may please be seenThe High Court Orders are also attached at CP 2 to 18 ) The final Judgement of Hon’ble High Court at CP 18 may please be seen. The same may please be forwarded to Dir Law) for suggesting next course l action please. Here it is not out of place to mention that Council had rejected the tender earlier and in my opinion we should stick to the Council Decision and if need be a special Council Meeting may be called for giving detailed deliberations for Rejecting the same and to Recall the Tender. Considering the VERY POOR CONDITION of the existing sewer line at Ashoka Road it is again requested that the decision may please be taken at the earliest possible to avoid any possible collapse of line. 22 02 2021 2:16 PM AJAY GUPTA SUPERINTENDING ENGINEER)” underlining supplied) 35. A bare perusal of the said note clearly shows that Council meeting was called not for re consideration of the issue whether the contract should be awarded to the Petitioner being the L 1 bidder but for giving reasons for the already taken decision of rejecting the bid of the Petitioner. The Respondent NDMC thus did not act in W.P.(C) 6752 2021 accordance with direction of this Court contained in its order dated 15.02.2021 passed in WPNo.5021. It is also evident that Mr. Virender Kadian one of the members of the Council had a pre conceived mindset of rejecting the Petitioner’s bid on account of his declared interest in the disqualified bidder Onsite. He had openly written a letter supporting Onsite and if Onsite could not be declared technically qualified to seek recall of the tender. In this background in all fairness he should have refrained from participating in the Council meeting held on 26.12.2020. In the counter affidavit the Respondent has in response to paras 10 & k) of the writ petition totally denied the same which again smacks of mala fides and bias. Parasandof the counter affidavit read as under: “That the contents of Para 1 0&are wrong and denied as false and baseless. It is denied that on request of the disqualified bidder i.e. M s Onsite India Private Limited a Member of the Legislative Assembly of Delhi called upon the Respondent to re invite the tender inter alia on the ground that the bid submitted by M s Onsite India Private Limited was not considered. The said allegation on the respondent is mala fide and contrary to the record. It is a matter of record that disqualified bidder M s Onsite India Private Limited was held to be not eligible and it was observed that is entire EMD of Rs.33 22 712 have been submitted in the shape of Bank Guarantee in contravention of the Clause 9 of Form 6 of NIT. Thus the allegation levelled by the petitioner against the respondent are misconceived and irrelevant for the purposes of adjudication of the present writ petition.” In fact the deponent of the affidavit appears to have perjured by stating a patent falsehood. This itself is demonstrative of the W.P.(C) 6752 2021 malafidies and bias entertained by the Respondent Council against the Petitioner. It is clear from the above that the decision to cancel the tender and to re tender was taken at the behest of a Council member viz. Shri Virender Singh Kadian despite the Finance Department and the Executive Engineer being in favour of awarding the tender to the Petitioner. The decision of the Respondent Council dated 21.05.2021 was motivated by concerns which were non transparent and have not been explained by sound reason. The reasons for rejection of the Petitioner’s bid and cancellation of the tender process are mala fide arbitrary extraneous illegal whimsical and violate Wednesbury principle of Reasonableness and cannot be sustained. Validity of any administrative decision is to be judged on the basis of reasons existing on record. The Public authority cannot be permitted to supplant reasons at a later stage especially if those reasons never existed 38. We are supported in our view by Royal Power Turnkey Implements P) Ltd. v. Maharashtra Industrial Development Corpn. 2014 SCC OnLine Bom 2884 wherein the court set aside the arbitrary and irrational decision of the Respondent Corporation to re tender the before. “12. In the light of this factual position much substance is found in contention of the petitioner that the decision to cancel the tender process is motivated by political as well as extraneous considerations. The petitioner has placed on record a letter dated 9 12 2013which is issued on the letter head of a political party Shiv Sena whereby the office bearer of the said political party has asked respondent MIDC to cancel the tender processes initiated vide Tender W.P.(C) 6752 2021 Notice No. 17 201314. The copy of this letter is also seen to the Honourable Minister for have been endorsed Industries as well as the local member of the Parliament. 13. True it is that the right to refuse the lowest or other tender is always available with respondents but the principles laid down by Article 14 of the Constitution are required to be kept in mind while accepting or refusing any tender. Right to choose cannot be considered to be an arbitrary power and if same is exercised for any collateral purposes then such exercise of power will have to be struck down. In the case at hand respondents have decided to cancel the earlier tender process which has travelled upto its destination due to opening of the financial bid in a most arbitrary manner. The reason for arriving at this decision is stated to be creation of huge mess by the unsuccessful bidders as well as for maintaining transparency. What was non transparent in the earlier tender process is an aspect which the respondent MIDC is unable to explain. Creation of mess by unsuccessful bidders and intervention of political party appears to be the factors which weighed the decision making process of the respondent MIDC. Such decision in our opinion is influenced by political and extraneous considerations only for the purpose of denying the petitioner company of its legitimate claim in respect of the tendered work. 15. In its rejoinder affidavit which went uncontroverted the petitioner has averred that undue pressure was brought on the respondent Corporation by a political party for taking decision of retendering the work for favouring contractors who were earlier found to be unqualified… 17. True it is the petitioner has no right to enter into contract but the principles of equality embodied in Article 14 of the Constitution mandates that the respondent Corporation cannot arbitrarily cancel the tender process for choosing any person it likes for entering into relationship with it and for excluding the petitioner by adopting irrelevant considerations. Therefore irrational decision of arbitrary and Corporation in retendering the work needs to be set aside as the same is unable to meet the test of reasonableness and non W.P.(C) 6752 2021 It is also clear from the above that the Respondent for the first time at a belated stage and after a significant period had passed from when the bids were received offered completely new reasons that are not found anywhere in the Respondent s records. It is clear that the new reasons offered are an afterthought given only to deny the Petitioner the contract and allow the disqualified bidder to participate in the bid again. In Mohinder Singh Gill v. Chief Election Commr. 1 SCC 405 the Supreme Court held: “8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise an order bad in the beginning may by the time it comes to court on account of a challenge get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji: “Public orders publicly made in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant or of what was in his mind or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order 40. Although Clauses 13 & 15 of the NIT empower to the Respondent Council to reject the tender without assigning any reasons in our opinion the reliance on the said clauses is misplaced and erroneous. W.P.(C) 6752 2021 The right not to assign reasons may be exercised only till so long as the action is not put to a legal challenge. The said right cannot be exercised to deny reasons to a competent Court. Moreover the right not to assign reasons does not carry with it the right not to have reasons. Reasons are the life blood of every administrative decision and every administrative decision has to be informed by good reason. It cannot be whimsical or capricious. Otherwise the administrative decision would fall foul of Article 14 of the Constitution of India. The right to refuse the lowest bid or any other tender is available to the Respondents. However the same has to be tested on the touchstone of reasonableness. The Respondent is not vested with the right to cancel the tender arbitrarily in order to choose a person it In Tata Cellular v. Union of India 6 SCC 651 the Hon’ble Supreme Court of India as follows: “70. It cannot be denied that the principles of judicial review would apply the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favouritism. However it must be clearly stated that there are inherent limitations in exercise of that power of judicial review. Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. The right to refuse the lowest or any other tender is always available to the Government. But the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. There can be no question of infringement of Article 14 if the Government tries to get the best person or the best quotation. The right to choose cannot be considered to be an arbitrary power. Of course if the said power is exercised for any collateral purpose the exercise of that power will be struck down”. W.P.(C) 6752 2021 In Corporate Infotech Private Limited v. South Delhi Municipal Corporation 2021 SCC OnLine Del 3519 the Court held that there may be no vested right available to the bidder for claim of contract but it has the right to find out the reasons for cancellation and assail those reasons if they are arbitrary whimsical or malafide. The Court “14. It is well settled in law that a Request for Proposal is only an invitation to offer. In response to the Request for Proposal the bidder submits its proposal bid which constitutes an offer under the Indian Contract Act 1872. That offer may or may not be accepted and unless accepted a binding contract does not come into being. The entity inviting offers is not bound to accept any offer including the highest or the lowest offer as the case may be. This position is not only well established in law but invariably is also expressly so stated in the Request for Proposal NIT. Even in the present case as noticed herein above the said position was clearly set out in more than one ways in the RFP by the respondents. 15. Having said this we cannot lose sight of the fact that the RFP was invited not by any private entity but by the SDMC which is a public authority and its actions are therefore liable to tested on the touchstone of Article 14 of the Constitution of India. The respondents can therefore be called upon to show that they have acted bona fide and for good reason in the matter of withdrawal of the RFP after having invited bids and after opening them. Whenever a challenge is laid to such an action the Courts do call for an explanation and the reasons which prompted the taking of such a decision. After all RFP s are not issued and bids are not invited in a casual manner and even though there may be no vested right in any bidder to claim that the RFP should culminate in the award of a contract much less to itself the bidders do have the legitimate right to at least find out as to what are the reasons for the cancellation and assail those W.P.(C) 6752 2021 reasons if they are arbitrary whimsical or mala fide. The scope of interference in such situations is therefore confined to call for the reasons which prompted the action taken by the public authority in cancelling the RFP NIT and to examine whether those reasons are germane and provide sufficient justification for the decision taken. It is only when the reasons are nonexistent or arbitrary whimsical or mala fide that the Court may interfere and not otherwise.” emphasis supplied) 43. We may now look at the second reasons provided by the Council for rejection of the Petitioner’s bid and cancellation of the tender. Even the second reason given for cancellation of tender and re tendering the works does not inspire our confidence. The second reason for cancelation is reproduced as under: “Rehabilitation of water sewer lines are not specialised but routine work and hence only 2 bids were found and none competitive in the first call.” 44. The Tender Notice dated 20.08.2020 reads as under: “Executive Engineer invites online Item rate bids on behalf of NDMC from Specialized Agencies in the field of Rehabilitation of old Sewer lines by any structural lining method and registered under GST for the work of T M of Sewer Line in NDMC area during 2020 21. Sub Head: Rehabilitation of existing 1100 1200 mm Dia Sewer Line along Ashoka Road from Nirwachan Sadan to C Hexagon Estimated Cost of Rs.16 61 35 617 with a time of completion of 06 Months at the cost of bidsof Rs. Nil. A sum of Rs.33 22 712 as earnest money shall be deposited in the office of any Ex. Engineer NDMC before the opening of bid in the form of pay order demand draft banker cheque Deposit at Call Receipt FDR of a scheduled bank in favour of Secretary NDMC payable at local branch of W.P.(C) 6752 2021 Delhi New Delhi. It should be ensured that the FDR is pledged in favour of the Secretary NDMC.” 45. The heading of Clause 1.2.2 reads as under: “Criteria of eligibility for Specialized Agencies Technical Eligibility Criteria: Three similar works each of value not less than 6.64 Crore or two similar work each of value not less than 9.96 Crore or one similar work of value not less than 13.29 Crore in last 7 years ending previous day of last date of submission of tenders shall also be considered. The value of executed works shall be brought to current costing level by enhancing the actual value of work at simple rate of 7% per annum calculated from the date of completion to the last date of submission of bid.” 46. A bare perusal of the aforesaid two clauses leads to only one conclusion that the Tender Notice was targeting specialised agencies to bid for the tender and the specialised agencies had to be specialists in the field of “rehabilitation of old sewer lines by structural lining method and registered under GST for executing the work in relation to the Project.” The very fact that in the tender only 3 agencies were considered qualified further lends credence to the fact that it was a work of specialised nature. The experience criteria laid down was in respect of “Three similar works” and not just any civil work. This also shows that the work under the tender was considered as a specialised work. The rules of interpretation clearly state that where the document is clear unequivocal and speaks for itself no external aids are required to interpret it. In the present case the Tender Document at two places uses the word specialised agencies and W.P.(C) 6752 2021 clearly leads to only one conclusion that the work was of a specialised nature. For now claiming that the work was not of specialised nature the Respondents have not given any reasons. The doctrine of Contra Proferentum binds the Respondent Council. 47. We may refer to our judgment in W.P.(C) 5603 2021 Maan Pharmaceuticals Ltd vs Employees State Insurance Corporation delivered on 17.08.2021 wherein we had observed: “28. We do not think that there is any ambiguity in the tender condition which is to be left to the interpretation of the tender floating authority. Nevertheless even there was any ambiguity the principles of contra proferentum are clear and have been explained in the following Supreme Court cases: Then in United India Insurance Co. Ltd. v. Orient TreasuresLtd.3 it was observed … 39. It is a settled rule of interpretation that when the words of a statute are clear plain or unambiguous i.e. they are reasonably susceptible to only one meaning the courts are bound to give effect to that meaning irrespective of consequences. In other words when a language is plain and unambiguous and admits of only one meaning no question of construction of a statute arises for the Act speaks for itself. Equally well settled rule of interpretation is that whenever the NOTE is appended to the main section it is explanatory in nature to the main section and explains the true meaning of the main section and has to be read in the context of main section 6752 2021 applicable and secondly even if there exists any ambiguity then it shall be construed against the drafter of the said contract or tender in the case before u 30. Therefore it leads to only one conclusion that the respondents cannot read ambiguity into the tender condition. In absence of any ambiguity the plain and express meaning of the condition has to be complied with.” 48. For the reasons stated above we are of the view that the reasons for cancellation of subject tender and for re tendering given by the respondent NDMC are illegal arbitrary biased malafide whimsical founded upon extraneous considerations and violative of Wednesbury Principle of Reasonableness and do not pass judicial scrutiny. In this view of the above we quash the decision of the Respondent taken on 04.06.2021 to cancel the tender. 50. We direct the respondent Council to take a fresh decision in the matter keeping in view our aforesaid findings and observations. The respondent Council should take into consideration all relevant and germane aspects including the following : i) Whether the price quoted by the petitioner L 1 bidder which is 2.34% above the estimated cost of work falls within the 5% acceptable limit and if so whether there is any genuine justification for still not accepting the petitioner’s financial bid. If the Council finds that there are any genuine reasons for not accepting the petitioner’s lowest bid those reasons should be clearly recorded and should be borne out from the W.P.(C) 6752 2021 ii) Whether the re tendering of the work at this stagewould itself be financially detrimental to the interest of the Council on account of inflation in rates and costs over the last about 18 months and if so the responsibility of the concerned individuals for inflation and costs should be fixed. 51. The decision that the Council may take should be communicated to the petitioner within a week of the same being taken. Looking to the past conduct of the Council we direct that in case the decision taken is against the petitioner the respondent shall not take any precipitative action at least for a period of ten days from the date of actual communication of the decision to the petitioner. The writ petition stands disposed of in the aforesaid terms. VIPIN SANGHI J JANUARY 07 2022 dm JASMEET SINGH J W.P.(C) 6752 2021

Bail to be granted if no evidence against the accused is available: Delhi High Court

When the available evidence does not support the conviction of accused or if the contents are too general and do not point towards the accused, then such a person must be released on bail provided he/she would not indulge in any activity contrary to justice. This was held by Hon’ble Justice Rajnish Bhatnagar in the case of Vasim Ali vs. State of NCT Delhi [BAIL APPLN. 1563/2021 and CRL.M.(BAIL) 528/2021 (for interim bail)] on the 12th of August 2021, before the Hon’ble High Court of Delhi at New Delhi. The brief facts of the case are, on 01.02.2021, PCR calls were received vide DD Nos. 26A and 27A and information regarding murder was received. It is further alleged that the deceased was taken to CRIBS Hospital, Shaheen Bagh, where mother of the deceased, namely, Farida Begum and her sister Saba Khan were present. Husband of the deceased, namely, Amir Ali and father-in-law of the deceased, namely, Abid Ali were also present at the hospital. It is alleged that, at the scene of crime, i.e., at Flat No. C-278/2, 1st Floor, front side, Shaheen Bagh, New Delhi, brother-in-law – petitioner herein, along with his friend Shanur Rehman were found present. Room of the deceased was inspected by crime team and photographs of the crime scene were also taken. It is further alleged that one suicide note allegedly written by deceased was also recovered from the rack of the headboard of bed. In the said suicide note, deceased had leveled allegations against her husband and in-laws. Thereafter, the suicide note was seized at the spot and dead body of the deceased was sent to AIIMS Hospital for preservation. It is further alleged that the concerned SDM was also informed about the incident and family members of the deceased were produced before Ld. SDM. As per the direction of SDM, the Executive Magistrate of Defence Colony, recorded the statements of the family members of the deceased. Farida Begum (Mother), Saba Khan (sister) and Afrin Begum (sister) levelled allegations of harassment, torture and dowry demands against the husband and in-laws of the deceased. Accordingly, FIR No. 28/2021 under Section 498A/304B/34 IPC was registered at Police Station Shaheen Bagh, New Delhi. In the FIR, it is stated by Ms. Farida Begum, mother of the deceased, that marriage of her daughter (deceased herein) was solemnized with Amir Ahsan Ali in the year 2019. At the time of Nikah, they demanded to change some food items in menu as per their choice and demanded AC and Car. They also demanded money and told her that since they are living in a rented house, they want money to purchase a house. She has further alleged that they tortured her daughter mentally and physically, like not giving food to her daughter and did not allow her to go to her mother’s home. They also used to quarrel over petty matters, and during pregnancy she was forced to do household works. It is further alleged that on 13.01.2021, her daughter was beaten by her husband with electric wire. It was alleged that her daughter gave birth to a baby girl so she was again tortured mentally and physically. It is further alleged that on 31.01.2021, deceased informed her mother on phone that her in-laws are not providing her food and locked her in a room. It is further alleged that on 01.02.2020, in the morning, accused Amir Ali called her elder daughter Saba on phone and informed that deceased is not getting pulse, and she along with her daughter reached at CRIBS Hospital where Amir Ali was found sitting alone and her daughter was found dead. The counsel for the petitioner submitted that, petitioner is an innocent young man and has been falsely implicated in this case. It is further submitted by him that petitioner is the brother-in-law of the deceased and there are no specific allegations against the petitioner in the FIR. It is further submitted that even in the alleged suicide note, which according to the prosecution was left behind by the deceased, there are no specific allegations against the present petitioner. It is further submitted that there are chances of the petitioner getting terminated from his job in case he remains behind the bar in a case in which there is not even an iota of evidence against him. It is further submitted that at the time of alleged incident, petitioner was attending his office meeting through video conferencing with a colleague and that the petitioner was nowhere present near the scene of crime. It is further submitted that charge sheet has already been filed. The counsel for the respondent submitted that, family members of the deceased have made statement before the SDM under Section 161 Cr.P.C. and they have levelled allegations regarding torture of the deceased and demand of dowry against the petitioner. It is further submitted that petitioner used to taunt the deceased about her family condition and also demanded car and AC. It is further submitted by learned APP for the State that on 13.01.2021, deceased wanted to visit her family, but the accused did not allow her to go and meet her parents.

IN THE HIGH COURT OF DELHI AT NEW DELHI VIA VIDEO CONFERENCING Pronounced on BAIL APPLN. 1563 2021 and CRL.M.(BAIL) 528 2021Saba Khanand Afrin Begumlevelled allegations of harassment torture and dowry demands against the husband and in laws Accordingly FIR No. 28 2021 under Section 498A 304B 34 IPC was registered at Police Station Shaheen Bagh New BAIL APPLN. 1563 2021 was solemnized with Amir Ahsan Ali in the year 2019. At the time of Nikah they demanded to change some food items in menu as per their choice and demanded AC and Car They also demanded money and told her that since they are living in a rented house they want money to purchase a house. She has further alleged that they tortured her daughter mentally and physically like not giving food to her daughter and did not allow her to go to her mother’s home. They also used to quarrel over petty matters and during pregnancy she was forced to do household works It is further alleged that on 13.01.2021 her daughter was beaten by her husband with electric wire It was alleged that her daughter gave birth to a baby girl so she was again tortured mentally and physically. It is further alleged that on 31.01.2021 deceased informed her mother on phone that her in laws are not providing her food and locked her in a room. It is further alleged that on 01.02.2020 in the morning accused Amir Ali called her elder daughter Saba on phone and informed that deceased is not getting pulse and she along with her daughter reached at CRIBS Hospital where Amir Ali was found sitting alone and her daughter was found dead I have heard learned counsel for the petitioner and learned APP for the State. I have also perused the records BAIL APPLN. 1563 2021 concerned at the time of release which shall be kept in working condition at all times. The petitioner shall not switch off or change the same without prior intimation to the IO concerned during the period of bail. The petitioner shall not tamper with the evidence. The petitioner shall not communicate with or come into contact with any of the prosecution witnesses or the family of the deceased. The petitioner shall not leave the NCT of Delhi without the prior permission of the concerned Trial disposed of accordingly The bail application along with the pending application stands 12. Nothing stated hereinabove shall tantamount to the expression of any opinion on the merits of the case 13. A copy of this order be communicated electronically to the concerned AUGUST 12 2021 RAJNISH BHATNAGAR J BAIL APPLN. 1563 2021 Page

Impetuous handling of evidences can cause grave miscarriage of justice: Supreme Court

The approach of the Court in dealing with evidences must be of such nature that it does not result in grave miscarriage of justice. The High Court ought to be careful and vigilant while dealing with the offences under the Prevention of Corruption Act as they are the offences against the society. This assertion was made by the Honorable Supreme Court of India by a three judge bench of J. Ashok Bhushan, J. Subhash Reddy and J. M.R. Shah in the case of State of Gujarat vs. Bhalchandra Laxmishankar Dave [CRIMINAL APPEAL NO.99 OF 2021]. In the instant case, High Court of Gujarat in a Criminal Appeal acquitted the respondent herein original accused for the offences under Section 7 r/w Sections 13(1) & 13(2) of the Prevention of Corruption Act by quashing and setting aside the judgment and order of conviction passed by the Learned Special Judge, Bharuch, Gujarat has preferred the present appeal. The respondent herein original accused who was an Assistant Director in ITI, Gandhi Nagar was charged for the offences. The Special Judge held the accused guilty and convicted the accused for the aforesaid offences and imposed the sentence of 5 years imprisonment and with fine. Feeling aggrieved with the judgment of conviction and sentence passed by the Learned Special Judge, the accused preferred appeal before the High Court.  By the impugned judgment and order, the High Court without any detailed re-appreciation of the entire evidence on record, acquitted the accused. Feeling aggrieved and dissatisfied with the impugned judgment and order of acquittal passed by the High Court, the State of Gujarat has preferred the present appeal.

Feeling aggrieved and dissatisfied with the impugned has acquitted the respondent herein original accused for the offences under Section 7 read with Sections 13(1) & 13(2) of the quashing and setting aside the judgment and order of conviction passed by the Learned Special Judge Bharuch the State of Gujarat Gandhi Nagar was charged for the offences punishable under 3.1 The Learned Special Judge Bharuch after full­fledged trial judgment and order convicted the accused under Section 7 read offences and imposed the sentence of 5 years imprisonment and Special A.C.B. Case No.14 2000 ­ the accused preferred appeal Feeling aggrieved and dissatisfied with the impugned 5. We have heard Ms. Deepanwita Priyanka Learned Advocate Senior Advocate and Shri Haresh Raichura Learned Advocate of the respective parties. However for the reasons stated herein below we propose to remand the matter to the High Court any 6. We have gone through the detailed judgment and order of by the High Court to ascertain whether the High Court has against the judgment and order of conviction. We find that the acquittal passed by the High Court we find that as such there is acquitting the respondent accused. The High Court has only made general observations on the depositions of the witnesses examined. However there is no re­appreciation of the entire Learned trial Court. Being First Appellate Court the High Court An Appellate Court while dealing with an appeal against guilty by a competent court of law. Secondly the accused having reinforced reaffirmed and strengthened by the trial Court Therefore while dealing with the cases of acquittal by the trial own conclusion. Ordinarily the High Court would give due and come to its own conclusion that acquittal is perverse and manifestly erroneous”. However so far as the appeal against the being a First Appellate Court. Keeping in mind that once the on totally erroneous view of law by ignoring the settled legal justice. Therefore we are of the firm opinion that the impugned judgment and order passed by the High Court acquitting the Learned trial Court while convicting the accused and without re­ appreciating the entire evidence on record in detail cannot be the High Court to consider and deal with the appeal afresh in accordance with law and on its own merits keeping in mind the observations made hereinabove. The High Court ought to have appreciated that it was dealing with the offences under the ought to have gone in detail. We do not approve the manner in appeal is allowed. The impugned judgment and order dated Court acquitting the accused for the offences under the Act for At the cost of repetition we observe that we have not expressed anything on merits in favour of either prosecution or even the

Particular provisions have been imposed for whom all can apply for compensation in the Motor Accident Claims Tribunal in case they get involved with a road accident: High Court Of New Delhi

The present appeal was done by the Insurance Company MAC.APP.217/2021 and 548/2018 2 impugning the award dated 13.10.2017 read with the order dated 05.02.2018, under Section 166 and 140 of the Motor Vehicles Act and the same issue was held in the judgement passed by a Single bench judge HON’BLE MR. JUSTICE SANJEEV SACHDEVA, in the matter VIJAY ALIAS CHHOTIYA LAL V. KRISHAN KUMAR AND ORS AC.APP. 548/2018 & CM APPL. 32038/2021 M/S  THE UNITED INDIA INSURANCE CO LTD V. VIJAY @ CHHOTIYA LAL & ORS. dealt with an issue mentioned above. In this case, there was a request from the parties, where the matter was referred to the Permanent Lok Adalat to explore the possibility of a settlement.  The Learned counsel appearing for the Insurance Company, Deputy Manager submitted that the disputes have been settled in Pre Lok Adalat and an enhancement has been agreed to. It was contended that over and above the awarded amount by the impugned award the insurance company has agreed to pay a consolidated sum of Rs.15,10,000/- to the claimant in full and final settlement of the entire claim amount. They also prayed that instead of awaiting the formal recording of settlement before the Lok Adalat which is scheduled on 11.12.2021, since the claimant was in urgent need of money, the appeals be disposed of in terms of the settlement between the parties. So given the above, with the consent of the parties, the appeals are disposed of and the awarded amount awarded by the impugned award dated 13.10.2017 read with the order dated 05.02.2018. Later the claimant has filed an application seeking a pre-release of the amount on the ground that he had to sell his house for repayment of the amount borrowed, It was stated that he has now entered into an Agreement to Purchase a plot in Faridabad and paid a sum of Rs. 1,00,000/- as advance and the balance sum of Rs. 10,00,000/-, Meanwhile the earlier awarded amount be directed to be pre-released in his favour was stated. Accordingly, it was directed that the insurance company shall deposit the said enhanced amount of Rs. 15,10,000/- with the Tribunal within four weeks. Thereafter later the claimant could l file before the Tribunal, a certified copy of the registered deed of title. And also the leftover amount shall be disbursed to the claimant in the staggered form to enable him to raise construction on the subject property. The court perused the facts and argument’s presented, it thought that- “In so far as the amount deposited in terms of the original award is concerned, the same shall continue to be disbursed following order dated 04.06.2021. The appeals, as well as the application, are disposed of in the above terms”.

8 & 12 IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on: 10.11.2021 MAC.APP. 217 2021 VIJAY ALIAS CHHOTIYA LAL Appellant MAC.APP. 548 2018 & CM APPL. 32038 2021 KRISHAN KUMAR AND ORS Respondents M S THE UNITED INDIA INSURANCE CO LTD.. Appellant Respondents VIJAY @ CHHOTIYA LAL & ORS Advocates who appeared in this case: For the Petitioner: For the Respondent: Mr. Pankaj Gupta Advocate for appellant in MAC.APP.217 2021 and respondent No.1 Mr. Sankar N.Sinha Advocate along with Ms. Aparajita Mukherjee Deputy Manager appellant in MAC.APP.548 2018. CORAM: HON’BLE MR. JUSTICE SANJEEV SACHDEVA SANJEEV SACHDEVA J.The hearing was conducted through video conferencing. 2. MAC.APP.548 2018 is an appeal by the Insurance Company MAC.APP.217 2021 and 548 2018 1 impugning the award dated 13.10.2017 read with order dated 05.02.2018 whereby the claim petition under Section 166 and 140 of the Motor Vehicles Act was allowed and compensation awarded to Mr. Vijay @ Chhotiya Lal who was the injured in the accident. 3. MAC.APP.217 2021 has been filed by Vijay @ Chhotiya Lal seeking enhancement of the awarded amount. On the request of the parties matters were referred to the Permanent Lok Adalat for the purposes of exploring the possibility of a settlement. Learned counsel appearing for the claimant as well as Mr. S.N.Sinha Advocate appearing for the Insurance Company under instructions from Ms. Aparajita Mukherjee Deputy Manager submits that the disputes have been settled in Pre Lok Adalat and an enhancement has been agreed to. It is contended that over and above the awarded amount by the impugned award the insurance company has agreed to pay a consolidated sum of Rs.15 10 000 to the claimant in full and final settlement of the entire claim amount. They pray that instead of awaiting the formal recording of settlement before the Lok Adalat which is scheduled on 11.12.2021 since the claimant is in urgent need of money the appeals be disposed of in terms of the settlement between the parties. MAC.APP.217 2021 and 548 2018 2 In view of the above with the consent of the parties the appeals are disposed of and the awarded amount awarded by the impugned award dated 13.10.2017 read with order dated 05.02.2018 is enhanced by a consolidated amount of Rs.15 10 000 which is inclusive of The award dated 13.10.2017 read with order dated 05.02.2018 directed release of the amounts partly on monthly basis. The claimant has filed an application seeking pre release of the amount on the ground that he had to sell his house for the purposes of repayment of the amount borrowed from friends and family for meeting the medical expenses and had shifted into a rented accommodation. It is stated that he has now entered into an Agreement to Purchase a plot in Faridabad and paid a sum of Rs. 1 00 000 as advance and the balance sum of Rs. 10 00 000 is to be paid and thereafter construction has to be raised on the said plot. It is prayed that the earlier awarded amount be directed to be pre released in his In view of the fact that the insurance company has agreed to an enhancement of a consolidated sum of Rs.15 10 000 I am of the view that the purpose of the claimant would be served in case instead of release of the earlier awarded amount the enhanced amount is disbursed to the claimant. MAC.APP.217 2021 and 548 2018 3 11. Accordingly it is directed that the insurance company shall deposit the said enhanced amount of Rs. 15 10 000 with the Tribunal within a period of four weeks. On deposit of the said amount the Tribunal shall disburse the sale consideration amount directly to the seller of the property after verifying the title of the seller. Thereafter the claimant shall file before the Tribunal a certified copy of the registered deed of title. 12. The remaining enhanced amount shall be disbursed to the claimant in staggered form to enable him to raise construction on the subject property. In so far as the amount deposited in terms of the original award is concerned the same shall continue to be disbursed in accordance with order dated 04.06.2021. 14. The appeals as well as the application are disposed of in the above terms. 15. Copy of the Order be uploaded on the High Court website and be also forwarded to learned counsels through email. NOVEMBER 10 2021 rk SANJEEV SACHDEVA J. MAC.APP.217 2021 and 548 2018 4

Petitioner accused of the offences under NDPS Act enlarged on bail by the Court: Karnataka High Court

The criminal petition is filed under section 438 of Cr.P.C (direction for grant of bail to person apprehending arrest) for the enlargement on bail for the offence punishable under section 8(c)( produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance), 17(a) (where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to one year or with fine which may extend to ten thousand rupees, or with both), 21(b)( where the contravention involves quantity, lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees)and 22(b)(allows the bail application of a person accused of illegal possession of a psychotropic substance) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘the NDPS Act’ for short) by the petitioner. The petition is allowed by the High court of Karnataka through the learned bench led by the Honourable Mr. Justice H.P. Sandesh in the case of Shriram Bharat vs State of Mandya east police ( criminal appeal no 295/2022) on 20th January 2022. Learned council, Sri Shrikant Kumar appeared from the side of petitioner and Learned high court government pleader, sri H S Shankar appeared from the side of the respondent. Brief facts of the case are that on 19th November 2021, a information has been received regarding the petitioner/accused and he was subjected to search and when he found that found 47 grams of hero from the pocket of this petitioner and 15 grams of opium with cover and one mobile and a cash of Rs.2,750/-. Hence, a case has been registered against petitioner and he has been in custody from 19th November 2021. Arguments presented by learned counsel appearing on behalf of the petitioner that the heroin which was seized from the possession of this petitioner is only an intermittent quantity and this petitioner is in custody from 19th November 2021 and his presence is not required for custodial interrogation and there are no criminal antecedents against the petitioner. The learned counsel also would submit that the investigation has already been completed and charge-sheet has been filed. Hence, he may be enlarged on bail. Arguments presented by the learned High court government pleader appearing on behalf of respondent that the small quantity is 5 grams and seized heroin is 47 grams that is intermittent quantity. Apart from that, opium also seized and even though no criminal antecedents against him and during the course of investigation collected the material and filed the charge-sheet. After hearing both the counsels and considering the submission made before the Honorable court and considering the records presented before honorable court, the petition is allowed by the court that the petitioner shall be realised on bail on certain grounds such as: The petitioner/accused shall execute personal bond for a sum of Rs.2,00,000/- with two sureties for the like-sum to the satisfaction of the jurisdictional Court; The petitioner/accused shall not indulge in tampering the prosecution witnesses; The petitioner/accused No.2 shall appear before the jurisdictional Court on all the future hearing dates, unless exempted by the Court for any genuine cause; The petitioner/accused No.2 shall not leave the jurisdiction of the Trial Court without prior permission of the Court, till the case registered against him is disposed of; However, it is made it clear that if the petitioner indulges in similar offences in future, the State is having liberty to approach the Court for cancellation of bail. 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.295 2022 BETWEEN: SHRIRAM @ BHARATH S O JAI ROOPARAM @ ACHARI AGED ABOUT 27 YEARS R AT MAGADI ROAD H P PETROL BUNK BENGALURU 560 091 BY SRI KARTHIK KUMAR K ADVOCATE) … PETITIONER STATE BY MANDYA EAST POLICE REP. BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDINGS BENGALURU 560 001 BY SRI H.S.SHANKAR HCGP) … RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CR.NO.156 2021 REGISTERED BY MANDYA EAST POLICE STATION MANDYA FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 8(c) 17(a) 21(b) 22(b) OF NDPS ACT. THIS CRIMINAL PETITION COMING ON FOR ORDERS ‘THROUGH VIDEO CONFERENCE’ THIS DAY THE COURT MADE THE FOLLOWING: O R D E R This petition is filed under Section 439 of Cr.P.C. seeking regular bail of the petitioner accused No.2 in Crime No.156 2021 of Mandya East Police Station Mandya for the offences punishable under Sections 8(c) 17(a) 21(b) & 22(b) of the Narcotic Drugs and Psychotropic Substances Act 1985 17(a) 21(b) & 22(b) of the NDPS Act subject to the following conditions: The petitioner accused No.2 shall execute personal bond for a sum of Rs.2 00 000 Rupees Two Lakhs only) with two sureties for like sum the satisfaction of jurisdictional Court. ii) The petitioner accused No.2 shall not indulge in tampering the prosecution witnesses. iii) The petitioner accused No.2 shall appear before the jurisdictional Court on all the future hearing dates unless exempted by the Court for any genuine cause. iv) The petitioner accused No.2 shall not leave the jurisdiction of the Trial Court without prior permission of the Court till the case registered against him is disposed of. v) However it is made it clear that if the petitioner indulges in similar offences in future the State is having liberty to approach the Court for cancellation of bail. Sd

If all the pre-requisites are satisfied, then recognition must be granted: Supreme Court of India

When all the pre-requisites given under a particular act to get permission/recognition are satisfied, then the concerned authority cannot deny the granting of such permission/recognition. This was held by the Hon’ble Justice R. F, Nariman and Hon’ble Justice B. R. Gavai in the case of Devendra Pathak Sarvodaya College of Education Vs. National Council for Teacher Education and Ors. [WRIT PETITION (C) NO.518 OF 2021] on the 11th of August before the Hon’ble Supreme Court at New Delhi. The brief facts of the case are, the petitioner college was established as unaided training college to impart Bachelor in Teacher Education (B.Ed.) and Diploma in Elementary Education (D.El.Ed.) courses in the year 2011. The petitioner college submitted an application to respondent No.1 – National Council for Teacher Education (hereinafter referred to as ‘NCTE’) for grant of recognition under Section 14(1) of the National Council for Teacher Education Act, 1993 (hereinafter referred to as ‘the said Act’) for conducting B.Ed. course with an annual intake of 100 students. Vide order dated 25.2.2014, NCTE granted recognition for B.Ed. course under one-year programme for Academic Year 2014­2015 with an annual intake of 100 students. Respondent No. 2 – Magadh University, Bodh Gaya, Bihar, vide letter dated 2.8.2014 granted affiliation to the petitioner college to conduct admission with 100 seats of one year B.Ed. course from Academic Year 2014­2015 till continuation of accreditation of NCTE. In the 280th meeting of NCTE, held on 29.2.2020 and 1.3.2020, a visiting team was constituted under the provisions of Section 15 of the said Act so as to inspect the infrastructure and instructional facilities for additional intake in B.Ed. and D.El.Ed. courses. However, on account of Covid­19 pandemic, inspection could not take place as scheduled. Subsequently, inspection in the petitioner­college came to be conducted on 8.3.2021 and a letter of intent was issued in favour of the petitioner­college by NCTE for additional intake in B.Ed. and D.El.Ed. courses as to the proposal submitted by the petitioner­ college on 10.6.20216. In the 290th meeting held on 3.3.2021, NCTE found that the petitioner­college has adequate facility required for conducting teachers’ courses. Petitioner­college was therefore asked to intimate its willingness on an affidavit about the number of units sought for the purpose of granting of the formal recognition. Petitioner­college replied thereto stating that the petitioner­college has the necessary infrastructure for additional intake of two units for B.Ed. course and two units for D.El.Ed. course. Recognition was granted to the petitioner­ college for additional intake of two units in B.Ed. course and two units in D.El.Ed. course in the 291st meeting of NCTE, held on 12.4.2021. However, by the said resolution, the recognition has been granted for Academic Year 2022­2023 and not for Academic Year 2021­2022. In this background, the petitioner­college has approached this Court seeking a direction to the respondents to grant recognition for Academic Year 2021­2022.

The facts in all these bunch of petitions are almost We will refer to the facts in the lead matter i.e. Writ The petitioner college was established as unaided The petitioner college submitted an application to respondent No.1 National Council for Teacher Education 1993for conducting Respondent No. 2 Magadh University Bodh Gaya Bihar vide letter dated 2.8.2014 granted affiliation to the year B.Ed. course from Academic Year 2014­2015 till By the National Council for Teacher Education Recognition Norms and Procedure) Regulations 2014 hereinafter referred to as ‘2014 Regulations’) notified on one­year B.Ed. course from Academic Session 2015­2016 B.Ed. course which requires additional facilities. Vide order granted recognition for D.El.Ed. course vide order dated 2.5.2016 with an annual intake of 50 seats for two years On 3.6.2016 after receiving NOC the petitioner­college In the 280th meeting of NCTE held on 29.2.2020 and and instructional facilities for additional intake in B.Ed. and D.El.Ed. courses. However on account of Covid­19 pandemic inspection could not take place as scheduled. Subsequently inspection in the petitioner­college came to be conducted on 8.3.2021 and a letter of intent was issued in favour of the petitioner­college by NCTE for additional intake in B.Ed. and NCTE found that the petitioner­college has adequate facility required for conducting teachers’ courses. Petitioner­college D.El.Ed. course. Recognition was granted to the petitioner­ on 12.4.2021. However by the said resolution the recognition has been granted for Academic Year 2022­2023 and not for In this background the petitioner­college has from Academic Session 2016­2017. Though the petitioner’s application was pending since 2015 the Eastern Regional meeting held on 20.4.2021 decided to grant recognition to the petitioner­college from Academic Session 2022­2023. The petitioner has therefore approached this Court seeking similar relief for a direction to grant recognition from the Academic In the present case also the petitioner in pursuance to an application for running B.Ed. and D.El.Ed. courses. The Department of School Education and Literacy Department Primary Education Secretariat) State of Jharkhand has also granted ‘No Objection Certificate’ for running D.El.Ed course on 26.2.2016. The application of the petitioner was not been received from the Directorate of Primary Education and the NCTE. The Division Bench of the Jharkhand High Court vide order dated 2.4.2019 allowed LPA no.1418 and directed ERC and NCTE to revive the application of the ERC of NCTE and the petitioner with regard to certain compliances. Finally ERC in its 293rd meeting held on 9.6.2021 decided to grant recognition to the petitioner for applied petitioner on 14.2.2018 to run one unit i.e. 50 students in its 291st meeting held on 12.4.2021 ERC decided to issue one course from Academic Session 2022­2023. Petitioner also The petitioner had applied on 20.10.2008 for conducting B.Ed. course with intake of 100 students held on 7th­9th July 2021 decided to grant recognition to the petitioner­institution for conducting B.Ed 2022­2023. In this background the petitioners approached In the present case also the petitioner­college in course from Academic Session 2016­2017. Vide order dated rejected by the WRC in its 262nd meeting. The petitioner preferred statutory appeal which was allowed and WRC was directed to reconsider the issue. After series of correspondences and some litigation WRC in its 337 th meeting decided to grant recognition to the petitioner for conducting B.Ed. course from the Academic Session 2022­2023. The with an annual intake of 100 students. The said application its 292nd meeting held on 20.4.2021 decided to grant recognition to the petitioner­institution for conducting B.Ed course of two years duration with an annual intake of 100 students from the Academic Session 2022­ 2023. As such petitioner has approached this Court seeking In the present case also the petitioner in response to the petitioner had approached the Delhi High Court by filing ERC in its 291st meeting held on 12.4.2021 granted 2022­2023. The petitioner therefore approached this Court In the present case also the petitioner in response to recognition for conducting B.Ed. course from the Academic for a period of six years and finally ERC in its 292 nd meeting held on 20.4.2021 granted recognition to the petitioner for In the present case also the petitioner in response to for a period of six years and finally ERC in its 292 nd meeting held on 20.4.2021 granted recognition to the petitioner for conducting D.El.Ed. course of two­year duration with an Writ Petition No.2383 of 2018. The said petition was allowed on 14.3.2018 thereby directing the respondents to reconsider the petitioner’s application. NRC in its 295th meeting issued show cause notice to the petitioner to which reply was submitted by the petitioner on 29.3.2019. The petitioner again approached the Delhi High Court by way of dated 6.11.2019. NRC in its 335thmeeting decided to grant recognition to the petitioner­institution for conducting to be issued to the petitioner. There were exchange of result. As such the petitioner filed a writ petition being Writ Petition No.1522 of 2021 before the Delhi High Court The said petition came to be disposed of by order dated NRC in its 336th meeting by order dated 28.6.2021 it granted the Academic Session 2022­2023 with annual intake of 50 We have heard Shri Amitesh Kumar Shri Shreeyash Uday Lalit and Shri Mayank Manish learned counsel for the petitioners Ms. Manisha T. Karia learned counsel for NCTE State of Rajasthan and Shri Kunal Chatterji learned counsel recognition to the petitioners­colleges institutions for the Academic Year 2022­2023 for no reason the recognition is not requirements of the NCTE and there is no reason as to why the NCTE submitted that taking into consideration the time frame as is prescribed by this Court in the case of Maa Vaishno Devi Mahila Mahavidyalaya v. State of Uttar Pradesh and others1 the recognition has been granted only 12 SCC 617 proposal of the petitioners for grant of recognition for have been pending for considerable periods. In some cases necessary requirements have granted recognition for dated 19th April 2021 passed by the NCTE in the lead matter AND WHEREAS on scrutiny of the application submitted by the institution the documents attached therewith the affidavit that the applicant fulfils the requirements under the provisions of NCTE Act Rules and Standards for the said teacher education programme such as instructional facilities infrastructural facilities financial resources identical or similar reasons have been given while granting recognition. It could thus be seen that recognition has been applications submitted by the institutions the documents attached therewith the affidavits submitted and the reports that the Committee was satisfied that the applicant(s) fulfills relevant Regulations after considering the certificates issued from the affiliating bodies. The order also records its education programme such as instructional facilities infrastructural facilities financial resources etc. for running that there can be no rational for NCTE or its Regional Committee to deny the recognition from the Academic Year 2021­2022 and insist on recognition for Academic Session 2022­2023. It is not in dispute that the counselling for admission is yet to commence. Insofar as the time­line prescribed in the judgment of this Court in the case of Maa Vaishno Devi Mahila Mahavidyalaya is concerned this Court itself in catena of orders placed on record has needs to be followed in the present matter particularly when the delay is not attributable to the petitioners but on the The cut­off date fixed by this Court in Maa be entitled to the recognition granted by Committees from the Academic Session 2021­ iii) The Respondent NCTE and its Regional Committees are directed to issue formal iv) The State and other Authorities would consider grant of affiliation and or other requisite permissions within a period of 15 days from The petitioners would be entitled to admit the the sanction granted by NCTE for the Academic The name of the petitioner­colleges institutions shall be included in the counselling programme The writ petitions are allowed and disposed of in the above terms. Consequently all pending applications shall

Proceedings in the nature of habeas corpus may not be used to examine the question of the custody of a child:-High court of Allahabad

Petitioner seek a direction to the respondent to recall of witness power to be invoked to meet the ends of justice for strong and valid reasons with cautions and circumspection, and the same issue was held in the judgement passed by a single bench judge Hon’ble Dr Yogendra Kumar Srivastava, J. In the matter, Sushil Kumar Tiwari And 4 Others V/s:- the State Of U.P. And 5 Others[ HABEAS CORPUS WRIT PETITION No. – 632 of 2021] dealt with an issue mentioned above. Pleadings in the petition are to the effect that the marriage of petitioner no. 1 was solemnized with respondent no. 4 on 09.06.2010 and the petitioner no. 2 was born on 23.08.2015 and that petitioner no. 1 and respondent no. 4 are living separately for the past several years. It is averred that petitioner no. 1 has filed a divorce petition and respondent no. 4 has also instituted certain legal proceedings against petitioner no. 1. The question of maintainability of a habeas corpus petition under Article 226 of the Constitution of India for custody of a minor was examined in Tejaswini Gaud and others vs. Shekhar Jagdish Prasad Tewari and others12, and it was held that the petition would be maintainable where detention by parents or others is found to be illegal and without any authority of law and the extraordinary remedy of a prerogative writ of habeas corpus can be availed in exceptional cases where ordinary remedy provided by the law is either unavailable or ineffective. The court perused the facts and arguments presented in the case at hand In a child custody matter, a writ of habeas corpus would be entertainable where it is established that the detention of the minor child by the parent or others is illegal and without the authority of law. In a writ court, where rights are determined on the basis of affidavits, in a case where the court is of a view that a detailed enquiry would be required, it may decline to exercise the extraordinary jurisdiction and direct the parties to approach the appropriate forum.

Court No. 85 Case : HABEAS CORPUS WRIT PETITION No. 632 of Petitioner : Sushil Kumar Tiwari And 4 Others Respondent : State Of U.P. And 5 Others Counsel for Petitioner : Maqsood Ahmad Beg Naiyar Counsel for Respondent : G.A Hon ble Dr. Yogendra Kumar Srivastava J Heard Sri Maqsood Ahmad Beg learned counsel for the petitioners and Sri Vinod Kant learned Additional Advocate General assisted by Sri Arvind Kumar learned Additional Government Advocate appearing for the State respondents The petitioner no. 1 asserting himself to be the father of the petitioner no. 2 corpus has filed the present habeas corpus petition alleging that the corpus is under illegal custody of his mother respondent no. 4. Pleadings in the petition are to the effect that the marriage of petitioner no. 1 was solemnized with respondent no. 4 on 09.06.2010 and the petitioner no. 2 was born on 23.08.2015 and that the petitioner no. 1 and the respondent no 4 are living separately for the past several years. It is averred that the petitioner no. 1 has filed a divorce petition and the respondent no. 4 has also instituted certain legal proceedings against the petitioner no. 1. An application stated to have been filed before the local police authorities some time in the year 2020 has been appended along with the petition wherein it is stated that the petitioner corpushad been taken away by his mother respondent no. 4 about three years earlier. Based on the aforestated facts the present petition seeking a writ of habeas corpus has been filed Sri Vinod Kant learned Additional Advocate General appearing along with Sri Arvind Kumar learned Additional Government Advocate for the State respondents submits that instructions have been received to the effect that criminal proceedings pursuant to a complaint case instituted by the respondent no. 4 are pending which fact has not clearly been placed on record. It is further submitted that as per the admitted facts the petitioner no.2 corpus being in the custody of his biological mother since the time when he was an infant of about two years of age the same cannot be held to amount to illegal detention and accordingly the present petition seeking a writ of habeas corpus would not be entertainable. Reliance has been placed upon recent decisions of this Court in Rachhit Pandey Minor) And Another vs. State of U.P. and 3 others1 Master Manan @ Arush vs. State of U.P. and 8 others2 Krishnakant Pandey And 2 Others vs. State of U.P. And 3 Others3 Master Tarun @ Akchhat Kumar And Another vs. State of U.P. And 3 Others4 Priyanshuand another Vs. State of U.P. and others6 and Reshu Nitya and others Vs. State of U.P. and others7 In order to appreciate the rival contentions the ambit and scope of exercise of powers for grant of a writ of habeas corpus in such matters would be required to be adverted to. The writ of habeas corpus is a prerogative writ and an extraordinary remedy. It is writ of right and not a writ of course and may be granted only on reasonable ground or probable cause being shown as held in Mohammad Ikram Hussain vs 1 2021ADJ 320 2 2021ADJ 317 3 2021 2 AWC 1053 ALL 4 2021ADJ 23 5 2021ADJ 438 6 2021 SCC OnLine All 593 7 Habeas Corpus Writ Petition No. 20 decided on 22.10.2021 State of U.P. and others8 and Kanu Sanyal vs. District The object and scope of a writ of habeas corpus in the context of a claim relating to custody of a minor child fell for consideration in Sayed Saleemuddin vs. Dr. Rukhsana and others10 and it was held that in a habeas corpus petition seeking transfer of custody of a child from one parent to the other the principal consideration for the court would be to ascertain whether the custody of the child can be said to be unlawful or illegal and whether the welfare of the child requires that the present custody should be changed. It was stated thus: 11. ...it is clear that in an application seeking a writ of Habeas Corpus for custody of minor children the principal consideration for the Court is to ascertain whether the custody of the children can be said to be unlawful or illegal and whether the welfare of the children requires that present custody should be changed and the children should be left in care and custody of somebody else. The principle is well settled that in a matter of custody of a child the welfare of the child is of paramount consideration of the Court… Taking a similar view in the case of Nithya Anand Raghvan v Stateand another11 it was held that the principal duty of the court in such matters is to ascertain whether the custody of the child is unlawful and illegal and whether the welfare of the child requires that his present custody should be changed and the child be handed over to the care and custody of any other person. The relevant observations made in the judgement are as follows: “44. The present appeal emanates from a petition seeking a writ of habeas corpus for the production and custody of a minor child. This Court in Kanu Sanyal v. District Magistrate Darjeeling 2 SCC 674 has held that habeas corpus was essentially a procedural writ dealing with machinery of justice. The object underlying the writ was to secure the release of a person who is illegally deprived of his liberty. The writ of habeas corpus is a command addressed to the person who is alleged to have another in unlawful custody requiring him to produce the body of such person before the court On production of the person before the court the circumstances in 8 AIR 1964 SC 1625 92 SCC 674 105 SCC 247 118 SCC 454 which the custody of the person concerned has been detained can be inquired into by the court and upon due inquiry into the alleged unlawful restraint pass appropriate direction as may be deemed just and proper. The High Court in such proceedings conducts an inquiry for immediate determination of the right of the person’s freedom and his release when the detention is found to be unlawful. 45. In a petition for issuance of a writ of habeas corpus in relation to the custody of a minor child this Court in Sayed Saleemuddin v Rukhsana 5 SCC 247 has held that the principal duty of the court is to ascertain whether the custody of child is unlawful or illegal and whether the welfare of the child requires that his present custody should be changed and the child be handed over to the care and custody of any other person. While doing so the paramount consideration must be about the welfare of the child. In Elizabeth Dinshaw v. Arvand M. Dinshaw 1 SCC 42 it is held that in such cases the matter must be decided not by reference to the legal rights of the parties but on the sole and predominant criterion of what would best serve the interests and welfare of the minor. The role of the High Court in examining the cases of custody of a minor is on the touchstone of principle of parens patriae jurisdiction as the minor is within the jurisdiction of the Court2004 SCC OnLine Del 699 relied upon by the appellant]. It is not necessary to multiply the authorities on this proposition. 46. The High Court while dealing with the petition for issuance of a writ of habeas corpus concerning a minor child in a given case may direct return of the child or decline to change the custody of the child keeping in mind all the attending facts and circumstances including the settled legal position referred to above. Once again we may hasten to add that the decision of the court in each case must depend on the totality of the facts and circumstances of the case brought before it whilst considering the welfare of the child which is of paramount consideration. The order of the foreign court must yield to the welfare of the child. Further the remedy of writ of habeas corpus cannot be used for mere enforcement of the directions given by the foreign court against a person within its jurisdiction and convert that jurisdiction into that of an executing court. Indubitably the writ petitioner can take recourse to such other remedy as may be permissible in law for enforcement of the order passed by the foreign court or to resort to any other proceedings as may be permissible in law before the Indian Court for the custody of the child if so advised 47. In a habeas corpus petition as aforesaid the High Court must examine at the threshold whether the minor is in lawful or unlawful custody of another person may be ordered to be taken away from her mother for being given to any other person including the husbandin exercise of writ jurisdiction. Instead the other parent can be asked to resort to a substantive prescribed remedy for getting custody of the child.” The question of maintainability of a habeas corpus petition under Article 226 of the Constitution of India for custody of a minor was examined in Tejaswini Gaud and others vs. Shekhar Jagdish Prasad Tewari and others12 and it was held that the petition would be maintainable where detention by parents or others is found to be illegal and without any authority of law and the extraordinary remedy of a prerogative writ of habeas corpus can be availed in exceptional cases where ordinary remedy provided by the law is either unavailable or ineffective. The observations made in the judgment in this regard are as follows: 14. Writ of habeas corpus is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from an illegal or improper detention. The writ also extends its influence to restore the custody of a minor to his guardian when wrongfully deprived of it. The detention of a minor by a person who is not entitled to his legal custody is treated as equivalent to illegal detention for the purpose of granting writ directing custody of the minor child. For restoration of the custody of a minor from a person who according to the personal law is not his legal or natural guardian in appropriate cases the writ court has jurisdiction x x x 19. Habeas corpus proceedings is not to justify or examine the legality of the custody. Habeas corpus proceedings is a medium through which the custody of the child is addressed to the discretion of the court. Habeas corpus is a prerogative writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case ordinary remedy provided by the law is either not available or is ineffective otherwise a writ will not be issued. In child custody matters the power of the High Court in granting the writ is qualified only in cases where the detention of a minor by a person who is not entitled to his legal custody. In view of the pronouncement on the issue in question by the Supreme Court and the High Courts in our view in child custody matters the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law. 20. In child custody matters the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be. In cases arising out of the proceedings under the Guardians and Wards Act the jurisdiction of the court is determined by whether the minor ordinarily resides within the area on which the court exercises such jurisdiction. There are significant differences between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ court which is of summary in nature. What is important is the welfare of the child. In the writ 127 SCC 42 court rights are determined only on the basis of affidavits. Where the court is of the view that a detailed enquiry is required the court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the civil court. It is only in exceptional cases the rights of the parties to the custody of the minor will be determined in exercise of extraordinary jurisdiction on a petition for habeas The exercise of the extraordinary jurisdiction for issuance of a writ of habeas corpus would therefore be seen to be dependent on the jurisdictional fact where the applicant establishes a prima facie case that the detention is unlawful. It is only where the aforementioned jurisdictional fact is established that the applicant would become entitled to the writ as of right In an application seeking a writ of habeas corpus for custody of minor child as is the case herein the principal consideration for the court would be to ascertain whether the custody of the child can be said to be unlawful and illegal and whether his welfare requires that the present custody should be changed and the child should be handed over in the care and custody of somebody else other than in whose custody he presently is. Proceedings in the nature of habeas corpus may not be used to examine the question of the custody of a child. The prerogative writ of habeas corpus is in the nature of extraordinary remedy and the writ is issued where in the circumstances of a particular case the ordinary remedy provided under law is either not available or is ineffective. The power of the High Court in granting a writ in child custody matters may be invoked only in cases where the detention of a minor is by a person who is not entitled to his her legal custody The role of the High Court in examining cases of custody of a minor in a petition for a writ of habeas corpus would have to be on the touchstone of the principle of parens patriae jurisdiction and the paramount consideration would be the welfare of the child. In such cases the matter would have to be decided not solely by reference to the legal rights of the parties but on the predominant criterion of what would best serve the interest and welfare of the minor In a given case while dealing with a petition for issuance of a writ of habeas corpus concerning a minor child directions may be issued for return of the child or the Court may decline to change the custody of the child keeping in view all the attending facts and circumstances and taking into view the totality of the facts and circumstances of the case brought before the Court the welfare of the child being the paramount In the facts of the present case it is undisputed that the petitioner no. 2 presently of age about six years is stated to be under the exclusive care and custody of his mother respondent no.4 since the time when he was an infant of about two years of age. It is also admitted position that the petitioner no. 1 and the respondent no. 4 are living separately for quite some time and also certain other legal cases are pending between the The subject matter relating to custody of children during the pendency of the proceedings under the Hindu Marriage Act 195513 is governed in terms of the provisions contained under Section 26 thereof. The aforesaid section applies to "any proceeding" under the HMA and it gives power to the court to make provisions in regard to:custody maintenance and iii) education of minor children. For this purpose the court may make such provisions in the decree as it may deem just and proper and it may also pass interim orders during the pendency of the proceedings and all such orders even after passing of the held as follows: The provisions under Section 26 of the HMA were considered in Gaurav Nagpal v Sumedha Nagpal14 and it was Section 26 of the Hindu Marriage Act 1955 provides for custody of children and declares that in any proceeding under the said Act the Court could make from time to time such interim orders as it might deem just and proper with respect to custody maintenance and education of minor children consistently with their wishes wherever possible." In a petition for a writ of habeas corpus concerning a minor child the Court in a given case may direct to change the custody of the child or decline the same keeping in view the attending facts and circumstances. For the said purpose it would be required to examine whether the custody of the minor with the private respondent who is named in the petition is lawful or unlawful. In the present case the private respondent is none other than the biological mother of the minor child. This being the fact it may be presumed that the custody of the child with his mother is not unlawful. It would only be in an exceptional situation that the custody of a minor may be directed to be taken away from the mother for being given to any other person including father of the child in exercise of writ jurisdiction. This would be so also for the reason that the other parent in the present case the father can take resort to the substantive statutory remedy in respect of his claim regarding custody of the child In a child custody matter a writ of habeas corpus would be entertainable where it is established that the detention of the minor child by the parent or others is illegal and without authority of law. In a writ court where rights are determined on the basis of affidavits in a case where the court is of a view that 141 SCC 42 a detailed enquiry would be required it may decline to exercise the extraordinary jurisdiction and direct the parties to approach the appropriate forum. The remedy ordinarily in such matters would lie under the Hindu Minority and Guardianship Act 195615 or the Guardians and Wards Act 189016 as the case may 20. Counsel for the petitioners has not disputed the aforesaid legal and factual position and the only grievance which is sought to be raised is with regard to a claim for visitation rights on behalf of the father. The contention which has been sought to be raised by the counsel for the petitioner with regard to the father s claim for custody and or visitation rights are matters which are to be agitated in appropriate proceedings 22. Having regard to the aforesaid this Court is not inclined to exercise its extraordinary jurisdiction to entertain the present petition seeking a writ of habeas corpus The petition stands dismissed accordingly. Order Date : 6.12.2021 15 HMGA 16 GWA

An acquittal in a criminal trial has no bearing or relevance on disciplinary proceedings: Supreme Court of India.

As per the cardinal principle of law an acquittal in a criminal trial has no bearing or relevance on the disciplinary proceedings as the standard of proof in both the cases are different and the proceedings operate in different fields and with different objectives. This was observed by Hon’ble M. R. Shah, J in the matter of Maharashtra State Road Transport Corporation vs. Dilip Uttam Jayabhay- [Civil Appeal No. 7403 of 2021]. Brief facts of the case are, the respondent was a driver and plied passenger buses. Once while driving, the bus met with an accident with a jeep coming from the opposite direction. It appears that instead of taking the bus to the left side, the driver took the bus to the extreme right which was the wrong side and as a result, the jeep and the bus collided. The accident resulted in death of four passengers and six were seriously injured. The impact of the collision was so high that the jeep was pushed back by about 25 feet and it was completely damaged. The bumper of the bus was also crushed. The driver of the jeep also sustained injuries. In view of this, the respondent was subjected to disciplinary enquiry. On conclusion of enquiry, he was dismissed from service and was prosecuted for offence under Section 279 of IPC. However, he came to be acquitted. The respondent challenged the order of dismissal before the Labour Court. The Labour Court upheld the order of dismissal. In a revision application the Industrial Tribunal considered acquittal of the respondent in criminal proceedings and observing that the drivers of both the vehicles were negligent (contributory negligence), the Industrial Tribunal exercised powers under item No.1(g) of Schedule­ IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (“MRTU” and “PULP Act, 1971” for short), and held that the order of dismissal is disproportionate to the misconduct proved. The Industrial Tribunal directed reinstatement without back wages but with continuity of Service. Feeling dissatisfied with this order, the appellant preferred writ petition before the High Court. The High Court not only dismissed the petition, but also directed appellant to pay back wages and also directed that the respondent will be entitled to retiral benefits on the basis of continuity of service with effect from date of his dismissal and till his superannuation. Feeling dissatisfied with this, the MSRTC has preferred the present appeal. Learned counsel appearing on behalf of the appellant– MSRTC has vehemently submitted that that both, the High Court as well as the Industrial Court have not considered and/or appreciated the difference between the disciplinary enquiry and the criminal proceedings and they have failed to appreciate that the acquittal has no bearing or relevance on the disciplinary proceedings as the standard of proof in both the cases are different and the proceedings operate in different fields and have different objectives. It is submitted that in the facts and circumstances of the case, the case would not fall under item No.1(g) of Schedule­ IV of the MRTU and PULP Act, 1971 since there is no victimization and the action of the MSRTC cannot be said to be not in good faith and the MSRTC has neither falsely implicated the complainant– respondent nor has it dismissed the respondent for patently false reasons and therefore respondent failed toprove the alleged unfair labour practice as per the MRTU and PULP Act, 1971. Learned counsel appearing on behalf of the respondent, has supported the order passed by the Industrial Court and confirmed by the High Court. It is submitted that in the facts and circumstances of the case when the Industrial Court found the order of dismissal disproportionate to the misconduct proved, the same can be said to be an unfair labour practice as per item No. 1(g) of Schedule­ IV of the MRTU & PULP Act, 1971. Thus, the Industrial Court rightly interfered with the order of dismissal and the same is rightly confirmed by the High Court. It is submitted that the criminal court found that the jeep driver was negligent and considering the fact the criminal court acquitted the respondent– driver, the judgment and order passed by the Industrial Court, ordering  reinstatement without back wages but with continuity of service does not warrant any interference. Supreme court after perusing the facts and arguments presented, held that – “The short question posed for consideration is whether the punishment of dismissal can be said to be unfair labour practice on the ground that it was disproportionate to the misconduct proved. As per the cardinal principle of law an acquittal in a criminal trial has no bearing or relevance on the disciplinary proceedings as the standard of proof in both the cases are different and the proceedings operate in different fields and with different objectives. Therefore, the Industrial Court has erred in giving much stress on the acquittal of the respondent by the criminal court. In the departmental proceedings every aspect has been considered. Hence, the Industrial Court committed a grave error and has exceeded in its jurisdiction while interfering with the order of   dismissal passed by the disciplinary authority, which was not interfered by the Labour Court. Even the directions issued by the High Court directing the appellant to pay wages to the respondent – workman could not have been passed by the High Court since the petition was not filed by the workman –respondent.” Click here to view Judgement

Feeling aggrieved and dissatisfied with the impugned petition preferred by the appellant Maharashtra State Road Transport Corporation No.13 of wages but with the continuity of service original writ bus collided. The accident resulted in death of four the jeep was completely crushed. The impact of the collision was so high that the jeep was pushed back by The driver of the jeep also sustained injuries. The respondent was subjected to disciplinary enquiry. On conclusion of enquiry he was dismissed from service. He order of dismissal before the Labour Court. The Labour Court upheld the order of dismissal. In a revision application the Industrial Tribunal considering the acquittal of the respondent in criminal proceedings and observing that the drivers of both the vehicles were Act 1971” for short) and held that the order of dismissal is disproportionate to the misconduct proved. Before the for the back wages. The Industrial Tribunal directed his reinstatement without back wages but with continuity of Feeling aggrieved and dissatisfied with the order dated 31.07.2003 passed by the Industrial Tribunal ordering reinstatement without back wages but with continuity of service the appellant preferred writ petition before the respondent back wages with effect from 01.11.2003 to 31.05.2018 i.e. which is the date of his superannuation Feeling aggrieved and dissatisfied with the impugned the writ petition and confirming the order passed by the Ms. Mayuri Raghuvanshi learned counsel appearing on that in the facts and circumstances of the case the It is submitted that both the High Court as well as the Industrial Court have not at all considered and or and the High Court have failed to appreciate that the acquittal has no bearing or relevance on the disciplinary have different objectives. Reliance is placed on the Vs. State of U.P. & Ors. 9 SCC 94 and Union of India & Ors. Vs. Sitaram Mishra & Anr. 20 SCC the rescue of the respondent as the acquittal in the criminal case is on the failure of the prosecution to examine investigating officer panch for spot panchnama that on the other hand in the departmental proceedings persons died due to the negligence on the part of the times earlier it cannot be said that the punishment of would not fall under item No.1(g) of Schedule­IV of the It is further submitted that even the Industrial Court specifically observed in the order that the misconduct is not of a minor or technical character. It is further submitted that the Industrial Court also observed that there is no victimization and the action of the MSRTC also observed that the MSRTC has neither falsely implicated the complainant respondent nor has it dismissed the respondent for patently false reasons and therefore respondent failed to prove the alleged unfair with the order of punishment dismissal imposed by the that he was gainfully employed after his dismissal the respondent back wages with effect from 1st November 2003 to 31st May 2018 could not have been passed in a petition filed by the appellant MSRTC. It is submitted Making the above submissions it is prayed to allow the the respondent has supported the judgment and order case when the Industrial Court found the order of dismissal disproportionate to the misconduct proved the item No. 1(g) of Schedule­IV of the MRTU & PULP Act side of the road and the respondent tried to avoid the the judgment and order passed by the Industrial Court ordering reinstatement without back wages but with interfere with the judgment and order passed by the Industrial Court ordering reinstatement without back At the outset it is required to be noted that in the departmental proceedings the misconduct alleged against the respondent driver of driving the vehicle rashly and negligently due to which the accident occurred in which four persons died has been proved. Thereafter the disciplinary authority passed an order of dismissal dismissing the respondent workman from service. The by giving cogent reasons and after re­appreciating the passed by the criminal court. However the Industrial by the disciplinary authority on the misconduct proved that punishment of dismissal is disproportionate to the 10.1 Therefore the short question which is posed for the consideration of this Court is whether in the facts and the same was disproportionate to the misconduct proved and therefore the Industrial Court was justified in interfering with the order of dismissal and ordering was driving the vehicle it met with an accident with the 25 feet. From the aforesaid facts it can be said that the great speed and rashly due to which the accident had under Sections 279 and 304(a) of IPC Criminal Court observed that the prosecution failed to prove that the was also negligent it can be said to be a case of contributory negligence. That does not mean that the 10.3 Much stress has been given by the Industrial Court on the agree with the submissions made on behalf of the respondent workman that as he was acquitted by the court it appears that the criminal court acquitted the respondent based on the hostility of the witnesses the evidence led by the interested witnesses lacuna in panchnama of the incident etc. Therefore criminal court held that the prosecution has failed to prove the case accident and due to which four persons died has been Industrial Court has erred in giving much stress on the acquittal of the respondent by the criminal court. Even otherwise it is required to be noted that the Industrial disciplinary authority holding charge and misconduct proved in the departmental enquiry and has interfered 10.5 Now so far as the order passed by the Industrial Court ordering reinstatement with continuity of service by invoking clause No.1(g) of Schedule­IV of the MRTU PULP Act 1971 is concerned as per clause No. 1(g) only in having any regard to the nature of the particular so as to amount to a shockingly disproportionate punishment. Clause No.1 of Schedule­IV of the MRTU a) by way of victimisation b) not in good faith but in the colourable exercise in utter disregard of the principles of natural justice in the conduct of domestic enquiry or for misconduct of a minor or technical character without having any regard to the record of service of the employee so as to amount to a shockingly disproportionate PULP Act 1971 to the present case it cannot be said that the dismissal of the respondent was for misconduct of a has been held to be guilty for a particular charge and Court. As per case of the appellant MSRTC the during three years’ service tenure he was punished four times. Therefore it cannot be said that the order of circumstances of the case the Industrial Court wrongly Even otherwise in the facts of the case when in the departmental enquiry it has been specifically found that died when the punishment of dismissal is imposed it cannot be said to be shockingly disproportionate has been considered. At the cost of repetition it is observed findings recorded by the enquiry officer in the departmental proceedings. Therefore in the facts and grave error and has exceeded in its jurisdiction while interfering with the order of dismissal passed by the disciplinary authority which was not interfered by the It is also required to be noted that before the Industrial Court the respondent workman driver admitted that passed by the High Court in a writ petition filed by the respondent. Therefore even otherwise the directions issued quashed and set aside and the judgment and Award order of dismissal passed by the disciplinary authority dismissing the respondent workman from service is hereby upheld. The present appeal is allowed to the

Evidence to be corroborated beyond doubt to establish offence – Bombay High Court

Mere production of the extract of the recorded version or even such verification of voice of the accused only is not sufficiently held by Hon’ble Justice Smt.Vibha Kankanwadi in the case of Devidas Vs State of Maharashtra [Criminal Appeal No 918 of 2015]. The original complainant Deepak Laxman Wadnere is the brother of one Mangala Hari Sonar, who was employed as a security guard with District Prison at Jalgaon. She has undergone a heart operation and the medical bills needed to be sanctioned for reimbursement. The accused was assigned to give the sanction and he demanded fifty thousand but later settled on twenty-five thousand. The complainant decided to lodge a complaint as he was not ready to give a bribe. The Anti- Corruption Bureau conducted a raid and the money given as bribe was recovered. The appeal has been filed by the original accused challenging his conviction wherein he has been sentenced to undergo simple imprisonment for two years and to pay a fine of Rs.25,000/-, in default, to suffer simple imprisonment for one year for the offence punishable under Section 7 of the Prevention of Corruption Act, 1988. He has been further sentenced to undergo simple imprisonment for two years and to pay fine of Rs.25,000/-, in default, to suffer simple imprisonment for one year for committing an offence under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. The issues for consideration before the Court was that whether the prosecution has proved demand and acceptance of the bribe by the accused from the complainant and whether interference is required in the decision of convicting the present appellant. Court placed reliance on the decision in Gulam Mahmood A. Malek vs. State of Gujarat, [1980 (Supp) SCC 684]; wherein it has been held that- “The complainant himself is in the nature of an accomplice and his story is prima-facie suspect for which corroboration in material particulars is necessary.” Further, in Ajit Savant Majagavi vs. State of Karnataka [AIR 1997 SC 3255], it was observed that – “Therefore, despite no legal bar to judge using his eyes, the judge should hesitate to base his findings with regard to the identity of handwriting solely on the comparison made by himself.” It was observed that “Here, the learned Special Judge ought to have been slow, rather refrained himself from playing the CD on his laptop in his chamber, when by that time, it had already come on record that the Investigating Officer had not collected the voice sample of the complainant as well as panch No.1.” Court further held that – “Here, in this case, though the CD’s were produced, voice sample of the accused was also taken and the certificate of the expert was also taken, yet, as aforesaid it cannot be said as complete evidence in the form of electronic record, as voice sample of complainant and panch No.1 was not taken and was not got compared/verified from the expert. Further, the said conversation was not played in the Courtroom at the relevant time during the proceedings. Each time when the conversation has been reproduced, it is stated that it has been got verified from the recorded conversation, then even before the trial Court it ought to have been produced and proved by admissible mode.” Court further observed that “The accused is the Class-III employee and he is not the sanctioning authority/verification authority of the medical bills. His job was to scrutinize the bills and place those bills before the Civil Surgeon for according sanction only. Therefore, there is no substance in the say of the complainant that he unwillingly gave consent to give a bribe as he believed that the bills of his sister would not be sanctioned. Under such circumstance, merely because the tainted amount was found with the accused, it cannot be said that offence has been proved against the accused beyond a reasonable doubt.” Finally, the accused stands acquitted of the offence punishable under Sections 7, 13(1) (d) read with Section 13(2) of the PC Act. His bail bonds stand cancelled. Click here to read the judgement

on 06 10 2020 on 07 10 Apeal 918 2015.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.918 OF 2015Devidas s o Harichandra BhaskarJalgaon. Tq. and Dist. Jalgaon.… AppellantVersusThe State of Maharashtra Through Police Inspector Anti Corruption Bureau JalgaonDist. Jalgaon.… Respondent ….Mr. M. A. Tandale Advocate for appellant.Mr. S. W. Munde APP for respondent State. ….CORAM : SMT. VIBHA KANKANWADI J.RESERVED ON : 11th September 2020PRONOUNCED ON : 6th October 2020JUDGMENT :.Present appeal has been filed by the original accused challenging hisconviction in SpecialCase No.112 by learned Additional SessionsJudge Jalgaon on 26 11 2015 wherein he has been held guilty of committingoffence under Sections 7 13(1)(d) read with Section 13(2) of the Prevention ofCorruption Act 1988on 06 10 2020 on 07 10 Apeal 918 2015.odt2.Appellant was serving as Assistant Superintendent at Civil Hospital Jalgaon and it is not in dispute that he is a public servant. The originalcomplainant Deepak Laxman Wadnere is the brother of one Mangala Hari Sonar who was employed as security guard with District Prison at Jalgaonon 06 10 2020 on 07 10 Apeal 918 2015.odtcomplainant requested him to get the work done regarding sanction of the bills.Initially he was told to come again but thereafter the accused started avoiding bysaying that he should come again and again. When the complainant visited thehospital on 17 07 2012 and met accused upon inquiry by the complainant accused told that the complainant will have to give amount of Rs.50 000 forpresenting the said bills to the District Civil Surgeon and gettingcertificate sanction from him. Complainant then told accused that since alreadyhuge amount has been spent by them for treatment of her sister it will not bepossible for him to give the amount demanded. Accused then told thecomplainant that he will have to give amount of Rs.25 000 for getting the saidsanction. Complainant told accused that he would inform the said fact to hissister and taking affirmation from her he would give the amount. Complainantgot assured that the amount of Rs.25 000 demanded by accused is nothing butbribe. He decided to lodge complaint as he was not ready to give bribe.Accordingly he went to Anti Corruption Bureau Jalgaon and lodged complaint on17 07 2012.3.After the complaint was lodged two panchas were arranged and intheir presence verification panchnama was carried out. At the time of verificationthe complainant had given phone call in presence of ACB officer Mr. Garud andthe two panchas. The recording of the conversation has been done. After the on 06 10 2020 on 07 10 Apeal 918 2015.odtverification was done it was decided to carry out raid. ACB officer explained theentire procedure as to how the raid would be carried out gave instructions tocomplainant and both the panchas. It was also explained to them as to how theanthracene powder applied on the amount currency notes brought by thecomplainant would act and demonstration was shown. Pre trap panchnama wascarried out.4.After the complainant went along with panch No.1 to the cabin of theaccused there was conversation. It is the prosecution story that the accusedaccepted the amount which was an illegal gratification for presenting the medicalbills submitted by the sister of the complainant for reimbursement for sanction.After the raid was completed panchnama was carried out. The accused wasfound with the tainted money. ACB officer Mr. Garud lodged complaint againstthe accused on behalf of State and carried out further investigation.5.During the course of the investigation the statement of witnesses wererecorded accused came to be arrested sanction to prosecute him was obtainedand after the completion of investigation charge sheet was filed.6.After the accused appeared before the learned Special Judge chargewas framed at Exhibit 2 against him. The contents of the charge were read over on 06 10 2020 on 07 10 Apeal 918 2015.odtand explained to him in vernacular. He pleaded not guilty and thereafter the trialhas been conducted. In all five witnesses have been examined by the prosecutionto bring home the guilt of the accused. After considering the evidence on recordand hearing both sides the accused came to be convicted. He has been sentencedto undergo simple imprisonment for two years and to pay fine of Rs.25 000 indefault to suffer simple imprisonment for one year for the offence punishableunder Section 7 of the PC Act. He has been further sentenced to undergo simpleimprisonment for two years and to pay fine of Rs.25 000 in default to suffersimple imprisonment for one year for committing offence under Section 13(1)(d)read with Section 13(2) of the PC Act. Both the sentences have been directed torun concurrently. This order of conviction is under challenge in this appeal.7.Heard learned Advocate Mr. M. A. Tandale for appellant and learnedAPP Mr. S. W. Munde for respondent prosecution. Perused the paperbook andevidence.8.It has been vehemently submitted on behalf of the appellant thatthere is no dispute that the accused is a public servant however it is required tobe seen as to whether the evidence that has been adduced by the prosecution wassufficient to prove the guilt of the accused beyond reasonable doubt. Thecomplainant has stated that the medical bills of his sister were sent through her on 06 10 2020 on 07 10 Apeal 918 2015.odtoffice for verification and to get them sanctioned for reimbursement. The accusedhad demanded amount of Rs.50 000 as bribe however it was settled toRs.25 000 . Whether this demand and acceptance is proved or not is required tobe seen. Further whether the prosecution could have adduced evidence ofindependent witness and whether the sanction that has been accorded by P.W.3 Dr. Bhaskar Pawar is legal are the points on which the appellant intends to insist.P.W.3 Dr. Bhaskar Pawar has deposed that he was holding additional charge ofthe post of Deputy Director Health Services Nashik from 01 07 2012 to05 12 2012. Thereafter he is working in that capacity since 06 12 2012 after hispromotion to the said post. He has accorded sanction on 30 10 2012. He therebyintends to say that on the day when the sanction was accorded he was holdingthe post of Deputy Director Health Services Nashik by way of Additional Charge.In his cross examination he has stated that his original post was Civil Surgeon Nashik on 30 10 2012. The person holding the post of Civil Surgeon was notcompetent to accord sanction for prosecuting a Class III employee. Prosecutionhas not brought on record the document showing that P.W.3 Dr. Bhaskar Pawarwas holding charge of Deputy Director of Health Services on 30 10 2012. Inabsence of that document it cannot be stated that the sanction which he hasaccorded i.e. Exhibit 34 is legal. It has been further submitted on behalf of theappellant that the evidence would show that there were in all three attempts tomake the trap successful. Same panchas have been used on all the three on 06 10 2020 on 07 10 Apeal 918 2015.odtoccasions. This fact itself throws doubt over the prosecution story and there isroom to believe that just to make that raid successful everybody has acted.Prosecution has not examined any independent witness when it has come in theevidence of P.W.2 panch No.1 that other staff members were sitting in the cabinof the accused at the relevant time. No explanation has been given by theInvestigating Officer as to why he has not recorded statements of thoseindependent witnesses or the staff members. In the examination in chief of P.W.2 he has stated that it was the de facto complainant who had asked the accused asto whether he should give the amount to him at that time itself. That means there was no demand by the accused. In fact the said amount was thrusted withthe accused which does not amount to acceptance. Mere possession of taintedcurrency notes or recovery of the same from the accused is not sufficient to convictthe accused when he has given proper and probable explanation. The testimonyof the complainant ought not to have been believed when he himself is like anaccomplice. Taking into consideration these aspects the learned Special Judgeought not to have come to the conclusion that the offence has not been provedbeyond reasonable doubt. As the learned trial Judge has committed error the saidconviction deserves to be set aside.9.Learned Advocate for the appellant has relied on some authorities.Those are categorized here on the basis of ratio involved. They are as follows: on 06 10 2020 on 07 10 Apeal 918 2015.odt(1)On the point of proof of Demand and Acceptance : i)P. Satyanarayana Murthy Vs. The Dist. Inspector of Police and Anr.P. Satyanarayana Murthy Vs. Dist. Inspector of Police and Anr.Mukhtiar Singhthrough His Legal Representative Vs. State of Punjab8 SCC 136] “Proof of demand and acceptance of bribe amount is mandatory.Mere recovery of tainted money is not sufficient to conclude infavour of prosecution. There should be corroboration to theevidence about demand and acceptance.”(2)On repeated attempts of raid : i)State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede1837]“When attempts of raid are repeated then serious doubts areraised on the prosecution.”(3)On the point of Sanction : i)Mansukhlal Vithaldas Chauhan Vs. State of Gujarat(8) on 06 10 2020 on 07 10 Apeal 918 2015.odtiii) State of Karnataka Vs. Ameerjan11 SCC 273]iv)C.B.I. Vs. Ashok Kumar Aggarwal3318“Sanctioning authority should apply mind while according sanction toprosecute. It can be done only after proper and complete scrutiny ofdocuments of investigation. Such authority cannot be delegated to anyother authority. If there are doubts about sanction order then accusedshould be acquitted.”10.Per contra learned APP submitted that the demand and acceptance ofthe amount which was absolutely not due from the complainant to the accused has been proved and the said amount is nothing but illegal gratification. P.W.1 hascategorically stated that the money was demanded for placing those bills beforethe Civil Surgeon and getting those bills sanctioned for reimbursement. In fact notheory of thrusting was put forward by the appellant and no suggestion to thateffect has been put to P.W.1 in his cross taken on behalf of the accused. Earlier twotimes the trap could not get succeeded because the accused was not present in theoffice. Therefore the trap could only be successful on third occasion cannot betaken as adverse circumstance. It has rather come on record in the testimony ofthe complainant as well as panch No.1 that as the accused was not present in theoffice there was no attempt to give that amount of bribery on that day. Whenever on 06 10 2020 on 07 10 Apeal 918 2015.odtthey met at that time the demand and acceptance has taken place. Therefore failure on earlier two occasions cannot be taken as an adverse circumstance. Theamount has been accepted in the cabin of the accused when there was nobodypresent there. Accused has not given satisfactory explanation about the taintedmoney found in his possession. Whatever lame explanation is tried to be given itis required to be discarded as it does not amount to proper explanation. All thepanchanama’s have been proved properly which includes the pre trap and post trap panchanama. Further if the amount would have been thrusted then thehands of the accused would not have glittered in Ultraviolet Lamp focus. Thepanchas are the independent witnesses as they are the government servants andwhen they have supported the prosecution they are definitely reliable. Thesanction has been properly accorded. Additional charge of Deputy Director wasgiven to the accused till 05 12 2012. There was no necessity to produce the saiddocuments on record as in the sanction order when the present witness hassigned then definitely it was with an authority and therefore with the saidauthority he got the power to appoint as well as remove an employee of Class IIIfrom his department. There was proper application of mind by him beforeaccording sanction. Accused had demanded the said amount for placing the billsfor getting reimbursement sanction before the Civil Surgeon. It amounts to illegalgratification and therefore he has been rightly convicted as the offence has beenproved beyond reasonable doubt. on 06 10 2020 on 07 10 Apeal 918 2015.odt11.Taking into consideration the above submissions following pointsarise for determination findings and reasons for the same are as follows. POINTS1Whether the prosecution has proved demand and acceptance of the bribe by the accused from the complainant 2Whether interference is required in the decision of convicting the present appellant REASONS12.At the outset while deciding any case involving the offence underAnti Corruption Laws the fact is required to be borne in mind that thecomplainant’s evidence will have to be scrutinized meticulously. Giving bribe isalso an offence but then in order to arrest a person who has demanded and thenwould be accepting the bribe it has to be given then the testimony of such personrequires to be carefully tested. In Pannalal Damodar Rathi vs. State ofMaharashtra AIR 1979 SC 1191 it has been held that : “There could be no doubt that the evidence of the complainantshould be corroborated in material particulars After introductionof Section 165 A of the Indian Penal Code making the person whooffers bribe guilty of abetment of bribery the complainant cannotbe placed on any better footing than that of an accomplice and on 06 10 2020 on 07 10 Apeal 918 2015.odtcorroboration in material particulars connecting the accused withthe crime has to be insisted upon”. 12.1Further in M.O. Shamsudhin vs. State of Kerala 3 SCC 351 wherein it has been held that : “the word ‘accomplice’ is not defined under the Indian EvidenceAct. It is used in its ordinary sense which means and signifies aguilty partner or associate in a crime. Reading section 133 andillustrationto section 114 of the Evidence Act together thecourts in India have held that while it is not illegal to act upon theuncorroborated testimony of accomplice the rule of prudence souniversally followed has to amount to rule of law that it is unsafeto act in the evidence of accomplice unless it is corroborated inmaterial aspects so as to implicate the accused”. In this case the Hon’ble Supreme Court has thoroughly discussed as tohow the evidence of bribe giver is required to be appreciated.12.2Further reliance can be placed on the decision in Bhiva Doulu Patilvs. State of Maharashtra AIR 1963 SC 599 wherein it has been held that : “the combined effect of section 133 and 114 illustrationmaybe stated as follows : according to the former which is a rule oflaw an accomplice is competent to give evidence and according tothe latter which is a rule of practice is almost always unsafe to on 06 10 2020 on 07 10 Apeal 918 2015.odtconvict upon his testimony alone. Therefore though theconviction of an accused on the testimony of an accomplice cannotbe said to be illegal yet the courts will as a matter of practice noraccept the evidence of such a witness without corroboration inmaterial particulars”.12.3Further reliance can be placed on the decision in Gulam Mahmood A.Malek vs. State of Gujarat 1980SCC 684 wherein it has been held that : “the complainant himself is in the nature of an accomplice and hisstory is prima facie suspect for which corroboration in materialparticulars is necessary”.13.P. W. 1 Deepak Wadnere is the complainant. In his examination in chief he has reiterated his complaint and thereafter went on to narrate thehappenings events at the time of pre trap as well as post trap panchanama.However the first thing that has not been corroborated is that he was therepresentative of his sister. The prosecution has not examined Mangala Hari Sonar sister of P.W. 1 Deepak for whose work the alleged bribe was demanded.Independently P.W. 1 Deepak had no work with the accused but then he says thatas his sister is heart patient and even had problem with hearing capacity he wastaking the follow up of the bill proposals of his sister. The corroboration ought tohave been brought on record by the prosecution that Mangala was incapacitated on 06 10 2020 on 07 10 Apeal 918 2015.odtto take the follow up. Without any authority by the sister P.W. 1 Deepak could nothave been authorized to demand sanction of the medical bills for reimbursement.We can understand that helping the sister who has difficulty would be the moralduty of the brother but when it comes to the legal aspects involved there shouldhave been atleast oral confirmation about the entrustment of the work of followup by Mangala to the complainant. When that basic aspect is missing thenagreeing to give bribeunder constrained circumstances loses its legal sanctity.14.According to the complainant the bills which were submitted by hissister were to the tune of Rs.5 04 051 and 10% of the same i.e. Rs.50 000 wasasked as bribe. Thereafter he says that the said amount was settled forRs.25 000 . Here also it is not his case nor it is extracted from him in theexamination in chief that he had informed the said fact to his sister to whom theamount was to be reimbursed and then she had also agreed to give that muchamount as bribe through brother. Here the important question is that not only theaccused is a public servant but Mangala is also a public servant. She is serving aslady constable in Sub Jail Jalgaon. One public servant cannot give bribe toanother public servant. It is also an offence as demand of bribe by the publicservant is also an offence. On this point also examination of Mangala by theprosecution was very much important. In his cross examination P.W. 1 Deepak on 06 10 2020 on 07 10 Apeal 918 2015.odthas stated that his sister never went to Civil Hospital in connection with medicalbills. She never accompanied him to Civil Hospital in connection with said bills.In this connection therefore the question arises whether she would have beenready to give bribe even if it would have been demanded.15.According to the complainant he went to the office of accused 5 6times in connection with the bills submitted by his sister. In his cross examination he has stated that he had not made complaint with Civil Surgeon alleging that themedical bills of his sister were not being sanctioned as the person occupying thetable of accused had told him that medical bills of his sister were not received byhis office. He had not made complaint against Civil Surgeon in connection withsanctioning of medical bills of sister. On the contrary he admits that at the time ofhis all 5 6 visits he was told that the medical bills of his sister were not receivedby the office of Civil Surgeon. Therefore if those medical bills had not received where was the question of sanctioning or processing those bills for sanction.16.As regards the events those had taken place just before the raid hehas stated that there was rush in the cabin of accused and therefore the accusedhad asked them to wait for some time. After some time he and panch No.1 werecalled by the accused and therefore they went near the accused. Accused toldhim that he will give certificate and then he says that he had demanded themoney from him. He took out the bribe amount kept in the left pocket of his shirt on 06 10 2020 on 07 10 Apeal 918 2015.odtby his right hand and gave it to the accused. Accused counted the amount andthen kept it in the right pocket of his trouser. If we see the testimony of P.W. 1 tothis effect then it is to be noted that he has told that when they were entering thecabin of the accused at that time 4 5 persons were discussing with the accusedand later on they went outside the cabin. Thereafter de facto complainant askedaccused whether he should give the bribe amount. Thereafter de factocomplainant took out the bribe amount from his pocket by his right hand andasked the accused to count those notes. Accused then counted the notes. Thediscrepancy in the testimony of these two witnesses is that as per the complainantaccused had demanded the amount first and then he handed over whereas thepanch No.1 said that the complainant himself had asked the accused whether heshould give the bribe amount. That means he is negativating the demand by theaccused. Both of them have stated that they were instructed by the InvestigatingOfficer that unless the amount is demanded by the accused that should not begiven. If this is so then as per the testimony of panch No.1 the complainant hasnot acted as per the instructions. Under this circumstance the demand at the timeof raid cannot be said to have been proved beyond reasonable doubt. Another factthat is required to be noted is that as per the prosecution story as well as thetestimony of P.W. Nos.1 and 2 voice recorder has been used to record thevoice conversation. It appears that the same has not been played in Court whenthe evidence of both these witnesses was recorded. The record does not show it in on 06 10 2020 on 07 10 Apeal 918 2015.odtthat way. The aspects involved in the tape recorded evidence electronic evidencewould be dealt with separately. But at this stage suffice it to say that thetestimony of the complainant as well as panch No.1 could have been wellcorroborated if the said voice recording would have been played at the time oftrial.17.The prosecution has come with the case and it has been tried to beproved through P.W. 1 P.W. 2 and the investigating officer that there wasverification of the demand and panchanama to that effect has been prepared which is at Exhibit 21. Panch No.1 has been posed as nephew of the complainantat that time. If we see the evidence of complainant as well as accused as regardsthe contents of Exhibit 21 then it can be seen that one Gaikwad had intervenedand on his say the amount was reduced to Rs.25 000 . It has not been broughton record by the prosecution that as to who is that Gaikwad and what role he hasplayed. Complainant has not told in his complaint or in his examination in chiefthat he had disclosed about demand that was earlier made by the accused to theextent of Rs.50 000 and then he had asked Gaikwad to help him. Therefore thequestion arises as to how this person can intervene. The prosecution has notplaced all the facts on record. It is stated that even at the time of event underpanchanama Exhibit 21 the voice recorder was used however the prosecutionhas not played it at the time of trial. Another point that had been harped upon by on 06 10 2020 on 07 10 Apeal 918 2015.odtthe appellant is the sanction accorded by P.W. 3 to prosecute accused. P.W. 3 hasstated that he was holding additional charge of post of Deputy Director when heissued sanction Exhibit 34. His original post on that day was Civil Surgeon Nashik and in clear terms he has stated that the person holding post of CivilSurgeon is not competent authority to appoint and remove Class III employee. Hesays that he had accorded sanction on the basis of delegated power by theGovernment. He has not produced any document showing delegation of suchpowers along with sanction order Exhibit 34 nor those documents were producedat the time of his deposition. When his original post was not competent to accordsanction and only on the basis of delegated powers if he is according thesanction then it was mandatory for him to attach that document which gives himauthority to accord the sanction along with the sanction order itself. Theprosecution has not taken pains to get that document on record at the time oftrial. Under such circumstance taking into consideration the fact that theauthentic source to delegate the power has not been brought on record thesanction order Exhibit 34 will have to be held as illegal and improper. On thiscount also the accused ought to have been acquitted. The learned Special Judgehas not considered this aspect that production of that document is necessary inorder to authenticate or legalize the sanction order. In other words withoutproduction of the document of delegation of power to P.W. 3 Dr. Bhaskar thesanction accorded by him Exhibit 34 becomes illegal. The ratio in the bunch of on 06 10 2020 on 07 10 Apeal 918 2015.odtauthorities in para 9above on the point of sanction are applicable here.18.P.W.4 Garud is the Investigating Officer cum informant. He hasgiven the details of the events by and large as per his First Information Report. Heis corroborating the testimony of complainant and panch No.1 yet for theaforesaid reason that corroboration cannot prove the offence against accusedbeyond reasonable doubt. In fact he has not stated as to why he has not evenrecorded the statement of Mangala. Another fact that is required to be noted isthat he has taken voice sample of accused only. Panchanama to that effect hasbeen produced at Exhibit 49 and it appears that the script of the earlierconversation was given to read to the accused. The said recording has been donein the music studio of All India Radio Station Jalgaon. In clear words P.W. 4 hasadmitted that he has not taken the voice sample of complainant. The logic behindtaking voice sample of accused only has not been explained by him. Another factis that the said audio series were sent to Forensic Science Laboratory Kalina Mumbai and the certificate has been given at Exhibit 53 about its examinationstating that the specimen voice matches with the voice in two CD’s i.e. Exhibit 1and Exhibit 2. This certificate has been exhibited in view of Section 293 of theCode of Criminal Procedure and thereafter P.W. 5 Nupur Kirkise has been crossexamined by the accused. She has stated that as per the guidelines issued by theCentral Forensic Science Laboratory Chandigarh it is necessary to record the voice on 06 10 2020 on 07 10 Apeal 918 2015.odtsample in presence of two panchas and the recording of voice samples of thosepanchas is also necessary along with its voice samples. She was unable toremember whether the voice samples of panchas were sent to her laboratory ornot. If we see the conversations which are stated to be recorded through voicerecorder then it should have contained the voice of complainant panch No.1 andthe accused. But here voice sample of only accused is taken. This cannot be thecompliance of the legal requirements. Further her cross examination would showthat the original recording was not sent to her but a copied CD was sent. Not onlyher evidence is believed by the learned Special Judge but he himself has alsoplayed those recordings most probably in his chamber and it is stated that it wasplayed on the laptop provided to him by the Indian Judiciary. He then certifies inthe judgment that the script starting from demand of the bribe amount verification panchanama Exhibit 21 is perfectly written as per the saidconversation and thereafter he went on to discuss the contents of the saidconversation. The basic fact is that unless it is proved by adopting all legalrequirements that the voice is that of accused then only it can be said that thedemand is proved and later on the acceptance to be proved. The learned SpecialJudge was not expected to play the said CD’s on his laptop and come to theconclusion which was not in presence of the parties. This can be equated to thepractice that is adopted by some of the judicial officers to compare the signatureson disputed documents with the signatures on the admitted documents themselves on 06 10 2020 on 07 10 Apeal 918 2015.odtby resorting to the provisions of Section 73 of the Indian Evidence Act. It will notbe out of place to mention here the ratio laid down in State of Maharashtra Vs.Sukhdeo Singh and anotherwherein it has been held that : “Court should be slow to compare disputed document withadmitted document for comparison although Section 73empowers the Court to compare disputed writings with thespecimen admitted writings shown to be genuine prudencedemands that Court should be extremely slow in venturing anopinion on the basis of mere comparison more so when thequality of evidence in respect of specimen admitted writings isnot of high standard”Further in Ajit Savant Majagavi Vs. State of Karnatakait was observed that : “Therefore despite no legal bar to judge using his eyes thejudge should hesitate to base his findings with regard to identityof handwriting solely on comparison made by himself”19.Here the learned Special Judge ought to have been slow ratherrefrained himself from playing the CD on his laptop in his chamber when by thattime it had already come on record that the Investigating Officer had notcollected the voice sample of the complainant as well as panch No.1. on 06 10 2020 on 07 10 Apeal 918 2015.odt20.Here in this case though the CD’s were produced voice sample ofthe accused was also taken and the certificate of the expert was also taken yet asaforesaid it cannot be said as complete evidence in the form of electronic record as voice sample of complainant and panch No.1 was not taken and was not gotcompared verified from the expert. Further the said conversation was not playedin Court room at the relevant time during the proceedings. Mere production of theextract of the recorded version or even such verification of voice of the accusedonly is not sufficient. Each time when the conversation has been reproduced it isstated that it has been got verified from the recorded conversation then evenbefore the trial Court it ought to have been produced and proved by admissiblemode. Hon’ble Supreme Court in Ziyauddin Burhanuddin Bukhari vs. BrijmohanRamdas Mehta AIR 1975 SC 1788 clearly laid down that : “The tape recorded speeches were “documents” as defined bySection 3 of the Evidence Act which stood on no differentfooting than photographs”. Further in R.M. Malkani vs. State ofMaharashtra AIR 1973 SC 157 it has been held that “taperecorded conversation is held admissible if it is relevant if thevoice is identified and the accuracy of the tape recordedconversation is proved by eliminating the possibility of erasingthe tape recorded conversation”. 21.In Ram Singh vs. Col. Ram Singh AIR 1986 SC 3 following on 06 10 2020 on 07 10 Apeal 918 2015.odtguidelines have been laid down by the Hon’ble Supreme Court for admissibility oftape recorded conversation : “1) The voice of the speaker must be duly identified by themaker of the record or by others who recognize his voice.Where the maker has denied the voice it will require very strictproof to determine whether or not it was really the voice of thespeaker. 2) The accuracy of the tape recorded statement has tobe proved by the maker of the record by satisfactory evidencedirectly or circumstantial. 3) Every possibility of tamperingwith or erasure of a part of the tape recorded statement must beruled out otherwise it may render the said statement out ofcontext and therefore inadmissible. 4) The statement must berelevant according to the rules of Evidence Act. 5) The recordedcassette must be carefully sealed and kept in safe or officialcustody. 6) The voice of the speaker should be clearly audibleand not lost or distorted by other sounds or disturbance.”22.One more important fact is that accused is the Class III employee andhe is not the sanctioning authority verification authority of the medical bills. Hisjob was to scrutinize the bills and place those bills before the Civil Surgeon foraccording sanction. It is not the case of the complainant that the said amount wasdemanded by the accused for giving it to Civil Surgeon rather he says that he hasno complaint against the Civil Surgeon. Therefore there is no substance in thesay of the complainant that he unwillingly gave consent to give bribe as he on 06 10 2020 on 07 10 Apeal 918 2015.odtbelieved that the bills of his sister would not be sanctioned. Under suchcircumstance merely because the tainted amount was found with the accused itcannot be said that offence has been proved against the accused beyondreasonable doubt. The evidence also shows that the raid was tried on threeoccasions. Even if we consider that as the accused himself was not present in theoffice that cannot be strictly termed as failed attempt yet the circumstancecreates doubt over the prosecution story.23.Taking into consideration in totality the reasons aforesaid this Courtcomes to the conclusion that the offence is not proved against the accused beyondreasonable doubt. The conclusion drawn by the learned Special Judge is wrongand conviction awarded to the accused therefore deserves to be set aside. Theappeal deserves to be allowed. Hence the following order : ORDERI)Appeal stands allowed.II)The conviction awarded to the appellant in Specialof the PC Act on 26 11 2015 by learned SpecialJudge Additional Sessions Judge Jalgaon is hereby set aside.III)The accused stands acquitted of the offence punishable under on 06 10 2020 on 07 10 Apeal 918 2015.odtSections 7 13(1)(d) read with Section 13(2) of the PC Act. His bail bondsstand cancelled.IV)Fine amount deposited if any be refunded to the appellantafter statutory period.V)No change in the order of disposed of Muddemal.SCM

Refusing to severe the matrimonial ties would cause further mental cruelty to the other spouse: Delhi High Court

The mental pain, agony, and suffering caused by the false accusations, other spouse cannot be asked to put up with the conduct of the spouse and to continue to live, was held in case of  Kirti Nagpal vs Rohit Girdhar, MAT.APP.(F.C.) 92/2020 &CM APPLs. 14842-14843/2020 by the bench comprising of Justice Sanjeev Narul and Justice Manmohan.  In the present case, the marriage between the parties was solemnized on 24th June, 2012 at Delhi as per the Hindu rites and ceremonies. The marriage was also registered in Delhi on 31st August, 2012. The Respondent(Husband) initially preferred a petition seeking a decree of nullity of marriage under Section 12(1)(a) and (c) of the HMA, on two grounds, that the marriage could not be consummated due to Appellant’s (Wife) impotency and that his consent was obtained by concealing several material facts related to the psychological disposition of the Appellant, knowing which, he would not have consented for the marriage. The Learned Trial Court held that the Appellant had treated the Respondent with cruelty within the meaning of the section 13(1)(ia) of HMA and thus decided in favour of the Respondent. Besides, the Court also observed that the relationship between the parties had deteriorated to such an extent that it became impossible for them to live together without mental agony, torture or distress. Aggrieved with the above order, the Appellant has approached this court praying for the stay and setting aside of the impugned judgment alleging that the Learned Trial Court’s conclusion is not based on correct appreciation of the facts, the evidence, as well as the law. This Court, answered the question, whether a false allegation of impotency amounts to cruelty within the meaning of Section 13(1)(ia) of the HMA. The Supreme Court has elaborately discussed the concept of mental cruelty in Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511. Indeed, mental cruelty is a state of mind and what might be cruelty in one case may not be so in another case, as observed by the Trial Court. The Court in the present case observed: “ The cruelty in the instant case is of enduring and profound nature. Thus, notwithstanding the fact that there is no allegation of cruelty in the original petition, the Trial Court was justified to conclude that it was of grave nature that caused lasting disruption in the relationship between the parties. We also note that the Appellant’s conduct of making unfounded allegations has continued right up to the appellate stage, as has been pointed out by Mr. Jauhar in his submissions. These false accusations which could not be proved are bound to cause deep hurt and anguish to the Respondent, who can reasonably apprehend that it would be perilous for him to live with the appellant. It is also abundantly clear that due to the mental pain, agony and suffering caused by the false accusations, the Respondent cannot be asked to put up with the conduct of the Appellant and to continue to live with her. Therefore, we do not find any infirmity in the impugned judgment on this ground as well”

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 02.11.2020 Pronounced on: 20.11.2020 MAT.APP.(F.C.) 92 2020 &CM APPLs. 14842 14843 2020 KIRTI NAGPAL Through: Mr. Manish Sharma Mr. Ninad Dogra and Ms. Jigyasa Sharma Advocates ROHIT GIRDHAR Through: Mr. Prabhjit Jauhar Advocate HON BLE MR. JUSTICE MANMOHAN HON BLE MR. JUSTICE SANJEEV NARULA JUDGMENT SANJEEV NARULA J. 1. By way of the present appeal the Appellant wife has impugned the judgment dated 22nd February 2020 passed by the learned Principal Judge Family Courts South East District Saket Courts New Delhi whereby the Court while rejecting the relief sought under Section 12(1)(a) andhas allowed the petition of the respondent by granting divorce under Section 13(1)(ia) of the Hindu Marriage Act 1955andof the HMA on two grounds that the marriage could not be consummated due to Appellant’s impotency and that his consent was obtained by concealing several material facts related to the psychological disposition of the Appellant knowing which he would not have consented for the marriage. 4. In the Written Statement filed before the Trial Court the Appellant inter alia pleaded that:the Respondent was suffering from impotencywhich was the true cause of non consummation of marriage ii) the parents of the Respondent had a quarrelsome nature the first wife of the Respondent was also tortured by the parents of the Respondent iv) Respondent’s dowry misappropriation of dowry articles and the Respondent thrashed the Appellant badly in front of his parents on 30th June 2012. 5. Placing reliance on Appellant’s written statement the Respondent amended his petition and additionally sought relief of divorce on the ground that the allegations made in the written statement were false and had caused him mental cruelty. On the basis of amended pleadings vide order dated 1st August 2016 the Trial Court framed the following issues: 1) “Whether the marriage has not been consummated owing to the impotence of the respondent OPP 2) Whether the consent of the petitioner for marriage was obtained by force or fraud OPP 3) Whether the respondent after solemnization of marriage has treated the petitioner with cruelty OPP 4) Whether petitioner is entitled to decree of nullity against the 5) Whether the petitioner is entitled to a decree of divorce respondent OPP 6) Relief.” 6. To substantiate the case the Respondent examined himself and one Dr. Prof. Anant Kumar as expert witness who was Chairman Urology Renal Transplant and Robotics of Max Hospital Saket New Delhi. On the other hand the Appellant produced six witnesses in support of her case. After the conclusion of trial and on the basis of the evidence produced the Trial Court concluded that the Respondent had failed to prove that the marriage had not been consummated owing to the impotency of the Appellant. Accordingly Issue No. 1 enumerated above was decided against the Respondent. Next the Learned Trial Court held that no material facts were concealed by the Appellant when the Respondent consented to the marriage and therefore it could not be said that his consent had been obtained by fraud or force. Accordingly the Issue No. 2 was also decided against the Respondent. Resultantly the Court held that the Respondent was not entitled to decree of nullity against the Appellant and Issue No. 4 was decided against the Respondent. However as regards Issue No. 3 the Court held that the Appellant had made false allegations in her written statement quathe impotency of the Respondent andher harassment for dowry and ill treatment at the hands of the Respondent and his family. These unsubstantiated and unproved allegations were held to be the cause of mental suffering of the Respondent. The Learned Trial Court held that the Appellant had treated the Respondent with cruelty within the meaning of the section 13(1)(ia) of HMA and Issue No. 3 was thus decided in favour of the Respondent. Besides the Court also observed that the relationship between the parties had deteriorated to such an extent that it became impossible for them to live together without mental agony torture or distress. The court observed that the marriage is beyond repair and was a dead marriage as it is not possible for the parties to live together. Thus Issue No. 5 was decided in favour of the Respondent and the Learned Trial Court allowed the petition to the extent of granting divorce under Section 13(1)(ia) of the HMA with effect from 22nd February 2020. 7. Aggrieved with the above order the Appellant has approached this court praying for the stay and setting aside of the impugned judgment as well as seeking directions that her petition of restitution of conjugal rights pending in the court of Sh. Sanjiv Jain Judge Family Courts South East District Saket Courts New Delhi be heard and decided on merits. Appellant’s Contentions: 8. Mr. Manish Sharma learned counsel for the Appellant argued that the Learned Trial Court’s conclusion is not based on correct appreciation of the facts the evidence as well as the law. His arguments can be summarized as a) Regarding claim of impotency of the Respondent: 9. Mr. Sharma emphasised that the Trial Court had erred and wholly misdirected itself by treating the averments made in the written statement out of context. It was insisted that the Appellant in through the written statement was only responding to the allegations made in the petition and give her version of facts by urging that Respondent’s impotency was the real cause for the non consummation of the marriage. However it was contended that this stand of the Appellant was neither considered nor appreciated by the Learned Trial Court and the judgment was passed in an arbitrary manner with a preconceived notion. Mr. Sharma further argued that reasoning of the Learned Trial Court is flawed for the reason that on the one hand it has been observed that Appellant’s claim viz. Respondent’s impotency stood negated owing to the fact that after about two months of marriage the parties went ahead for registration of marriage whereas on the other hand the Trial Court without any justification or rationale failed to appreciate that the Respondent too had also participated in the registration of marriage after having lived with the Appellant during the above period. Arguendo this conduct should have been considered as negation of Respondent’s allegations qua Appellant’s mental health and behaviour which were being countered in the original written statement. b) Regarding expert witness testimony: 10. Mr. Sharma laid considerable stress that the Learned Trial Court has erroneously relied upon the testimony of Dr. Prof. Anant Kumar to assume that the Respondent was not impotent and to further conclude that the allegations of the Appellant were false and scandalous. The following reasons were put forth: i. The conclusion arrived at by Dr. Prof. Anant Kumar were based on assumptions and presumptions. In his cross examination he had admitted that he had seen the Respondent only on 12.07.2015 and he “presumed” that the Respondent was not impotent in the year 2012. ii. The expert witness Dr. Prof. Anant Kumar admittedly did not subject the Respondent to any investigation and relied upon purported earlier reports which were not on record. iii. The problem of erectile dysfunction could also happen in an otherwise physically healthy person due to lack of physical and mental stimulus. iv. In response to a direct question he admitted that if a person does not like his partner then the person may not get aroused. In furtherance of this reliance was placed on Sucharitra Kalsie v. Rajinder Kishore Kalsie 11DLT 92 to argue that an individual can be impotent towards his wife but otherwise may be able to have sexual intercourse. Therefore the testimony of Dr. Anant Kumar cannot be given undue credence. c) Regarding claim of cruelty caused by Appellant to Respondent: 11. Mr. Sharma also argued that despite the Respondent’s false and untrue allegations against the Appellant she has been ready and willing to live in the matrimonial alliance with him at all points in time. She has communicated her desire and willingness to continue the marriage during the pendency of the proceedings and in multiple mediations. Documents placed on record such as emails pictures messages complaints are also indicative of the same. It is thus argued that this conduct of the Appellant is the very opposite of cruelty and does not gel with the findings given by the Trial Court to the effect that Appellant has treated the Respondent with cruelty. 12. In this regard Mr. Sharma further argued that the Court had to judge whether cruelty was in the nature of regular practise for which the Appellant’s conduct has to be seen as a whole rather than going by a specific instance and if so whether it was of the type or degree which merited the grant of divorce. He pointed out that there was no allegation of cruelty prior to Appellant’s filing the written statement. Presumption has to be drawn in this regard in favour of the Appellant. He maintained that a stray pleading cannot be made a ground to grant divorce pertinently when the allegation was neither raised prior to the filing of the written statement nor shown in the conduct of the Appellant throughout the pendency of the proceedings. The Appellant has been seeking restitution of conjugal rights since beginning and was ready and willing to save matrimonial alliance with the Respondent and therefore the impugned judgment should be set aside. Respondent’s Contentions: 13. Mr. Prabhjit Jauhar learned counsel for the Respondent on the other hand strongly opposed the petition and argued that the findings of the Learned Trial Court were wholly justified on the basis of the pleadings and the evidence produced before the Court in the nature of oral testimonies and the documentary proof. 14. He argued that the Appellant had made grave allegations against the Respondent and his family especially those concerning Respondent’s impotency. These allegations remained unsubstantiated despite Appellant producing five witnesses along with her own deposition. Particularly she made no effort to produce any evidence to justify or prove her allegations. Mr. Jauhar asserted that in the absence of any documentary or medical evidence that could suggest that the Respondent was unfit to consummate the marriage the Learned Trial Court has rightly held such allegations in the Written Statement to be false and amounting to mental cruelty. Likewise the allegations regarding Appellant being mistreated and tortured at the hands of the parents of the Respondent also remained unsubstantiated. 15. Further Mr. Jauhar vehemently argued that aside from the above the Appellant had made reckless and venomous allegations qua the Respondent and no self respecting person would like to continue in a matrimonial alliance with a partner who makes such allegations. Some of these have been presented to us as under: i. Appellant has alleged that the Respondent “considers women to be as a part of disposable commodity and he specializes in disposing them off without any further thought till he preys upon his next hapless ii. Even in the present appeal the Appellant has not spared the Respondent and has called him a “serial marrier” in the pleadings who “marries and dumps young women without any reason as and when he pleases” and who “has a kink of marrying the girls for less than a couple of months and then divorcing him for no fault of victim.” iii. In the present appeal in another paragraph it is alleged that “the respondent has a fixed pattern and style whereby he marries women just for a couple of months and then when he gets fed up of them he tries to get rid of them by making all sorts of false allegations and character assassinations.” 16. Lastly Mr. Jauhar submitted that since 3rd September 2012 the parties have been living separately due to which reconciliation is impossible and the marriage has irretrievably broken down and thus there is no reason to carry on with the marriage which is dead for all intents and purposes. 17. We have given due consideration to the rival contentions urged before us and have carefully perused the record. The learned Trial Court has dissolved the marriage between the parties on the ground of cruelty within the meaning of Section 13(1)(ia) of the HMA. This finding is primarily premised on the allegations made by the Appellant in her Written Statement to the original petition filed by the Respondent under Section 12 of the HMA. Thus the nature and the extent of allegations made by the Appellant is beyond any controversy. These allegations can be broadly categorised under two different compartments: allegations pertaining to the impotency of the Respondent and allegations with respect to mistreatment torture and dowry demand against the Respondent and his parents. These allegations laid the foundation for the ground of cruelty. The Respondent brought in evidence to establish before the Court that he was not impotent and that the false and untrue allegations were causing him mental stress and amounted to cruelty. In this endeavour besides examining himself the Respondent also produced Dr. Prof. Anant Kumar as an expert witness. The doctor proved the medical report dated 12th July 2015 exhibit and was extensively cross examined by the Appellant’s counsel. He deposed that on the basis of physical examination the Respondent was found to be a normal male adult with fully developed secondary sexual character and organs normal endocrine and sexual function and had no problem of impotence. The Learned Trial Court concluded that the credibility of the witness could not be impeached and since he had specifically examined the Respondent and found that the Respondent suffered no medical infirmity that could render him incapable of consummating the marriage the allegation of impotency made by the Respondent was not proved. The witness is a very highly qualified medical expert with immaculate credentials. His testimony has thus been rightly relied upon by the Learned Trial Court to give a finding on this issue in favour of the Respondent and we find no reason for interference on this score. Further we also agree with the observations of the learned trial court that it was imperative for the Appellant to produce positive evidence to substantiate and prove the allegations made in the written statement(such as medical evidence) in order to counter the evidence and the expert witness testimony produced by the Respondent. After all these accusations were levelled by the Appellant and the onus lay on her to establish the veracity of same. Concededly the Appellant entirely failed to produce any medical or corroborated evidence that could remotely suggest that the Respondent was medically unfit to consummate the marriage. Therefore in absence on any such evidence Appellant’s allegations remained unsubstantiated. 18. Now the next question is whether a false allegation of impotency amounts to cruelty within the meaning of Section 13(1)(ia) of the HMA. It is true that cruelty has not been defined in the HMA. It can be physical or mental. It is primarily contextual pertaining to human behaviour or conduct with respect to matrimonial duties and obligations. It is therefore essential to see whether the conduct of the party is of such a nature that a reasonable person would neither tolerate the same nor be reasonably expected to live with the other party. The Supreme Court in the case of V. Bhagat v. D. Bhagat AIRSC 710 observed as under: “Mental cruelty in Section 13(1)(ia) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion regard must be had to the social status educational level of the parties the society they move in the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations regard must also be had to the context in which they were made.” 19. As regards the allegations made in pleadings Courts have considered this question time and again and it is now no longer res integra that false baseless scandalous malicious and unproven allegations made in the written statement may amount to cruelty. If it is established from the evidence that the allegations were evidently false then such baseless allegations made in the written statement can amount to cruelty and the Court can pass a decree of dissolution of the marriage. In Jayanti v. Rakesh Mendiratta 2016 CLJ 498 Del it was held that in matrimonial proceedings the pleadings assume great significance. Similarly in the case of V. Bhagatgrave false allegations were made by the wife against the husband in her written statement. Such allegations were even put to the husband in cross examination. The Supreme Court held that such allegations were bound to cause mental pain and anguish to the husband amounting to mental cruelty and dissolved the marriage between the parties. In the present case we therefore agree with Mr. Prabhjit Jauhar that the allegations in the Written Statement are grave and serious accusations which are likely to impact Respondent’s self image and adversely affected his mental well being. Thus having regard to the law on the subject we find no infirmity in the findings and observations of the trial court that the allegation of the Appellant in the Written Statement with respect to the impotency clearly falls within the concept of cruelty as defined under law. 20. We cannot accede to the contention of Mr. Sharma that the allegation of impotency attributed to the Respondent was only qua the Appellant. In support reliance placed on a portion of the statement of the medical expert Dr. Kumar to the effect “In unusual situations like this when a person does not like the partner or the environment is not conducive he may not get an erection” is misplaced and out of context. This response is part of a longer answer to the question whether “a person with a normal sperm count can be impotent”. Moreover this is the general opinion of the expert on the subject. It was for the Appellant to produce evidence to establish the extent and nature of impotency of the Respondent as is now being portrayed before us. She ought to have applied to the Trial Court to have the Respondent medically examined in this regard. Undeniably no such attempt was made. Since no evidence was produced by her to substantiate her case this plea has no basis and is rejected. 21. We are also not at all persuaded by the explanation offered by Mr. Sharma for making allegations that are in controversy. Mr. Sharma argued that the allegation of impotency was in retaliation to the Respondent’s allegation of impotency towards the Appellant. He laid considerable stress on the fact that as the allegations in the petition were of a serious nature and since the Respondent was casting aspersions on Appellant’s sexual behaviour she was justified in retorting by making a counter allegation. This explanation is wholly unconvincing and does not dilute the act of cruelty committed by her. Besides the explanation is legally untenable and cannot be accepted. The averments made by a party in its pleadings before a Court of law have to be given due sanctity and have to be treated with seriousness. These allegations made in the pleadings are brought in the public domain and the Court is expected to give its verdict on the basis of the allegations and the counter allegations made by the parties. No party can be excused of recklessness in allegations made before the Court of law. The consequences of false assertions have to follow. Allowing the respondent to get away with the consequences of false allegations or treating them as trivial would not advance the cause of justice. Even in V. Bhagat’s casethe Supreme Court had taken a strong view of the matter with respect to false allegations opining that such allegations made in a formal pleading filed in the Court went far beyond the reasonable limits of the wife’s defense. Particularly in the context of the proceedings under the HMA Section 20 specifically stipulates that the averments made in the pleadings will be treated as evidence and the court is thus empowered to act upon unfounded allegations made in pleadings. The assertions in the pleadings are to be supported by affidavit in terms of the HMA and the rules framed thereunder. The purpose of having an affidavit accompanying the pleadings is to give due sanctity to the same. In fact now the rules of pleadings under several jurisdictions have evolved and they prescribe that the petitions be accompanied by a ‘Statement of Truth’. All of these are methods to ensure that no party may level untrue allegations against the other in a court of law as mere counter attack or in vengeance. We cannot allow the parties to be so casual about the averments made in the pleadings. There can be no justification for any party to retaliate by making untrue and false allegations regardless of how provocative the allegations may be. If the Appellant was hurt by the allegations made by the Respondent she had her legal remedies against the same. It did not certainly give her a carte blanche to make counter allegations which were untrue and cause deep humiliation 22. Further we also find that the justification put forth by the Appellant to be contrary to the record. It was not a one off casual retaliatory remark. The stand in the written statement was sustained all throughout the trial till the stage of final decision. The imputations and allegations made by the Appellant in the Written Statement have been repeatedly reinforced during trial by giving suggestions to the Respondent and also to his expert witness during the course of their cross examinations. Significant effort was made to establish that the Respondent was indeed impotent and incapable of sexual intercourse. This line of cross examination of the Respondent and his expert witness clearly establishes that the Appellant endeavoured to attribute the non consummation of marriage to the Respondent’s impotency. In fact in the cross examination and also in the pleadings the Appellant has attempted to establish that Respondent’s first divorce was also related to his sexual incompetence. We thus not find any merit in the contention of the Appellant that the allegations of cruelty are only based on one stray incident. We do not find any infirmity in the finding of the Learned Trial Court on this aspect as well. 23. As regards Appellant’s allegations relating to torture and mistreatment we do not find anything wrong with the finding of the Learned Trial Court. The Learned Trial Court had meticulously examined the evidence produced before it and concluded that these allegations remained unsubstantiated and there is no reason to take an exception to the findings recorded by the Trial Court. The Appellant has not been able to establish her case that she was mistreated or tortured. In the absence of any cogent and independent evidence put forth by the appellant the allegations levelled by her remain unsubstantiated and unproven. 24. We also do not agree with the Appellant that cruelty in the present case was not a sustained or severe one. The Supreme Court has elaborately discussed the concept of mental cruelty in Samar Ghosh v. Jaya Ghosh 2007) 4 SCC 511. Indeed mental cruelty is a state of mind and what might be cruelty in one case may not be so in another case as observed by the Trial Court. The Court has carefully examined the facts and evidence and observed that the allegations are scandalous and malicious. Appellant persistently humiliated the Respondent causing him mental agony pain and suffering. The cruelty in the instant case is of enduring and profound nature. Thus notwithstanding the fact that there is no allegation of cruelty in the original petition the Trial Court was justified to conclude that it was of grave nature that caused lasting disruption in the relationship between the parties. We also note that the Appellant’s conduct of making unfounded allegations has continued right up to the appellate stage as has been pointed out by Mr. Jauhar in his submissions. These false accusations which could not be proved are bound to cause deep hurt and anguish to the Respondent who can reasonably apprehend that it would be perilous for him to live with the appellant. It is also abundantly clear that due to the mental pain agony and suffering caused by the false accusations the Respondent cannot be asked to put up with the conduct of the Appellant and to continue to live with her. Therefore we do not find any infirmity in the impugned judgment on this ground as well. 25. Lastly we also do not find any infirmity in the approach of the Learned Trial Court by placing reliance upon the judgment in Samar Ghoshon the aspect of irretrievable breakdown of marriage. Undisputedly the Appellant and the Respondent have been separated for more than eight years and since the separation has continued for a sufficient length of time it can be presumed that the marriage has irretrievably broken down. The Trial Court has noted that although irretrievable breakdown of marriage is not a ground for divorce in the statute however the courts have been taking this aspect into consideration. There has been a prolonged and continuous separation and the matrimonial bond is beyond repair. Therefore refusing to severe the matrimonial ties would cause further mental cruelty to the Respondent. In view of the totality of the circumstances evident from the nature of allegations and counter allegations made by the parties and the evidence that has come on record the conclusion drawn by the Trial Court cannot be faulted with. 26. In view of the foregoing we find no merit in the present appeal. Accordingly the appeal and the applications are dismissed. SANJEEV NARULA J MANMOHAN J NOVEMBER 20 2020

Mere disobedience or breach of the Court’s order by the person is not sufficient to constitute civil contempt.: Manipur High Court

In order to exercise its power to punish the contemnor the Court has to be satisfied beyond reasonable doubt that the contemnor has willfully, deliberately and intentionally violated the Court’s order as upheld by the High Court of Manipur through the learned bench led by Hon’ble Mr. Justice MV Muralidaran in the case of Shri Hawaibam Pradeep Kumar Singh v. Shri Akoijam Sanatomba Singh and Ors. (MC(Cont.Cas(C)) No. 101 of 2021 [Ref:- Cont.Cas(C) No. 58 of 2021]) The brief facts of the case are that this Miscellaneous Case has been filed by the applicant/contemnor seeking to close the Contempt Case (C) No.58 of 2021 since the order dated 22.04.2021 passed in 2016 and 2018 has been complied with. The applicant herein is the third respondent in the Contempt Case No.58 of 2021. Mr. Romesh, the learned counsel for the applicant submitted that by the common order dated 22.4.2021, this Court disposed by directing the Thoubal Municipal Council to consider the case of the respondents herein for allotment of shops in the 15 lying vacant shops in the New Thoubal Market by giving personal opportunity to the respondents without affecting the allotment of the respondents 5 to 8 in W.P.(C) No.415 of 2018 and the said exercise was directed to be completed within a period of eight weeks from the date of the receipt of the copy of the order. The order of this Court dated 22.4.2021 has not been complied with, Contempt Case No.58 of 2021 came to be filed by the respondents on 05.7.2021. He would submit that pursuant to the direction of this Court dated 22.4.2021, the applicant has issued an order dated 8.7.2021 and that challenging the order dated 8.7.2021, W.P.(C) No.493 of 2021 came to be filed on 6.8.2021 by the respondents. The learned counsel submitted that since the order of this Court dated 22.4.2021 has been duly complied with by the applicant, the Contempt Case No.58 of 2021 is to be closed. Per contra, Mr. Juno Rahman, the learned counsel for the respondents/writ petitioners submitted that the contempt petition cannot be closed on the ground that the respondents have filed W.P.(C) No.493 of 2021 challenging the order dated 8.7.2021 and that the action and conduct of the contemnors amounts to willful and deliberate violation of the common order dated 22.4.2021. After the perusal of the facts and arguments by the respective parties, the Hon’ble Court held, “In the instant case, there is no proof to show that the contemnor has willfully, deliberately and intentionally violated the Court’s order. In fact, the applicant being the contemnor has passed the order on 8.7.2021. Though the original order is dated 22.4.2021 and eight weeks’ time has been granted to the contemnors to consider the claim of the respondents herein and the compliance order came to be passed only on 8.7.2021 beyond the eight weeks period, the short delay in passing the order dated 8.7.2021 cannot go against the applicant/contemnor. Since the order of this Court dated 22.4.2021 has been substantially complied with, the question of contempt will not lie. Therefore, this Court is of the view that the order dated 22.4.2021 has been duly complied with by the applicant and resultantly, Contempt Case No.58 of 2021 is liable to be closed as substantial compliance has taken place.”

P a g e | 1 Versus Applicant IN THE HIGH COURT OF MANIPUR AT IMPHAL MC(Cont.Cas(C)) No. 1021 Ref: Cont.Cas(C) No. 521 Shri Hawaibam Pradeep Kumar Singh aged about 37 years Executive Officer Thoubal Municipal Council Thoubal Office at Thoubal Wangmataba P.O. & P.S. Thoubal Thoubal District Manipur 795138. 1. Shri Akoijam Sanatomba Singh aged about 58 years S o Ak. Heramot Singh of Thoubal Wangmataba P.O. & P.S. Thoubal Thoubal District Manipur 795138. 2. Shri Akoijam Yaimachouba @ Yaimachou Singh aged about 56 years S o Ak. Thambal Singh of Thoubal Wangmataba P.O. & P.S. Thoubal Thoubal District Manipur 795138. 3. Smt. Akoijam Manitombi Devi aged about 51 years W o Ak. Somen Singh of Thoubal Wangmataba P.O. & P.S. Thoubal Thoubal District Manipur 795138. 4. Shri Akoijam Somen Singh aged about 55 years Ak. Chaoba Singh of Thoubal Wangmataba P.O. & P.S. Thoubal Thoubal District Manipur 795138. Respondents MC(Cont.Cas(C)) No. 1021 Ref: Cont.Cas(C) No. 521 P a g e | 2 B E F O R E HON’BLE MR. JUSTICE MV MURALIDARAN For the Applicant Mr. Y. Romesh Adv. For the respondents Mr. Juno Rahman Advocate. Date of Hearing & Reserving Judgment & Order Date of Judgment & Order JUDGMENT & ORDER This Miscellaneous Case has been filed by applicant contemnor seeking to close the Contempt CaseNo.58 of 2021 since the order dated 22.04.2021 passed in W.P.(C) No.466 of 2016 with W.P.(C) Nos.4916 and 4118 has been complied with. 2. The applicant herein is the third respondent in the Contempt Case No.521. 3. I heard Mr. Y. Romesh the learned counsel for the applicant and Mr. Juno Rahman the learned counsel for the MC(Cont.Cas(C)) No. 1021 Ref: Cont.Cas(C) No. 521 P a g e | 3 4. Mr. Romesh the learned counsel for the applicant submitted that by the common order dated 22.4.2021 this Court disposed of W.P.(C) Nos.466 4916 and 4118 by directing the Thoubal Municipal Council through the Executive Officer and the Administrator Thoubal Government of Manipur to consider the case of the respondents herein for allotment of shops in the 15 lying vacant shops in the New Thoubal Market by giving personal opportunity to the respondents without affecting the allotment of the respondents 5 to 8 in W.P.(C) No.415 of 2018 and the said exercise was directed to be completed within a period of eight weeks from the date of the receipt of the copy of the order. 5. The learned counsel further submitted that alleging that the order of this Court dated 22.4.2021 has not been complied with Contempt Case No.521 came to be filed by the respondents on 05.7.2021. He would submit that pursuant to the direction of this Court dated 22.4.2021 the applicant has issued an order dated 8.7.2021 and that challenging the order dated 8.7.2021 W.P.(C) No.493 of 2021 came to be filed on 6.8.2021 by the respondents. The learned counsel submitted that since the order of this Court dated 22.4.2021 has been duly complied with by the applicant the Contempt Case No.521 is to be closed. MC(Cont.Cas(C)) No. 1021 Ref: Cont.Cas(C) No. 521 P a g e | 4 6. Per contra Mr. Juno Rahman the learned counsel for the respondents writ petitioners submitted that the contempt petition cannot be closed on the ground that the respondents have filed W.P.(C) No.4921 challenging the order dated 8.7.2021 and that the action and conduct of the contemnors amounts to willful and deliberate violation of the common order dated 22.4.2021. To support his case Mr. Juno Rahman produced the following two judgments: 1) 1995 SuppSCC 465 Ltd. & Anr. Vs. Sachidanand Dass & Anr.) 2) 1992) 4 SCC 167 8. This Court considered the submissions raised by the learned counsel appearing on either side and also perused the materials available on record. 9. By the common order dated 22.4.2021 W.P.(C) Nos.466 4916 and 4118 with M.C.(WP) Nos.100 65 98 and 99 of 2021 are disposed by this Court. The operative portion of the order reads thus: MC(Cont.Cas(C)) No. 1021 Ref: Cont.Cas(C) No. 521 P a g e | 5 “[9] Considering the arguments advanced by both the counsels this Court to pass appropriate orders by directing the Respondent Nos.4 and 9 in all the three Misc. Cases in MC W.P.(C)] Nos.98 99 and 1021 no prejudice would be caused to the Govt. Respondents as well as the private Respondent Nos.5 to 8. Hence without going into the merits and demerits of the case of the petitioners since the petitioners are not pressed the prayers sought for in all the three writ petitions I am inclined to pass the following orders: a) all the three writ petitions in W.P.(C) Nos.466 of 2016 415 of 2018 and 499 of 2016 are disposed of. b) Respondent No.4 by namely the Thoubal Municipal Council Toubal through the Executive Officer E.O) Thoubal Municipal CouncilThoubal Manipur and Respondent No.9 by namely Administrator Thoubal Government of Manipur Office at Thoubal Athokpam P.O. P.S. Thoubal Thoubal District Manipur in MC[W.P.(C)] Nos.98 99 and 100 of 2021 are directed to consider the case of all the in respect of claim of petitioners for allotment of shops in the 15 MC(Cont.Cas(C)) No. 1021 Ref: Cont.Cas(C) No. 521 P a g e | 6 fifteen) lying vacant shops in the New Thoubal Market under the control of Thoubal Municipal Council by giving personal the petitioners without affecting the allotment of the Respondent Nos.5 to 8 in W.P.(C) No.4118. c) the said exercise shall be done within a period of 3 weeks from the date of receipt of this order. 11] Accordingly all these writ petitions being W.P.(C) Nos.4916 4118 and 466 of 2016 and MC[WP(C)]Nos.65 98 99 and 100 of 2021 are disposed of. The Misc. Case in M.C.No.621 is closed.” 10. Alleging that the respondents in the writ petitions have willfully disobeyed the order dated 22.4.2021 the respondents herein have filed Contempt Case No.521 on 05.7.2021. It is seen that on 24.5.2021 the learned counsel for the respondents issued notice to the contemnors for immediate compliance of the order dated 22.4.2021. The end paragraph of the said notice dated 24.5.2021 reads as under: “In the facts and circumstances stated above I hereby give you this legal notice informing you that the claim of the humble petitioners be MC(Cont.Cas(C)) No. 1021 Ref: Cont.Cas(C) No. 521 P a g e | 7 consider for allotment of shops from amongst the 9vacant shops lying in the New Thoubal in lieu of the shops that were acquired for construction of the New Thoubal Market and also in view of the series of orders passed by the Hon ble High Court of Manipur and judgment and order dated 22 04 2021 passed in WP No. 4616 4118 and 4916 failing which I have no alternative but to file the Contempt petition under Section 12 of the Contempt of Courts Act 1971 read with Article 215 of the Constitution of India for wilful and deliberate disobedience of the judgment and order dated 22 04 2021 passed in WP No. 4616 4118 and 4916 above referred before the Hon ble High Court to meet the ends of justice and to protect the rule of law.” 11. It appears that two days after the filing of the Contempt Case the contemnor herein issued an order dated 8.7.2021. The operative portion of the order dated 8.7.2021 reads as under: “Now in view of the latter dated 05 07 2021 vide No. 8 Tbl MUC Misc 2016 along with the related documents submitted by the Revenue Officer Thoubal Municipal Council it is hereby issued this order that the Thoubal Municipal Council would not be able to allot shops to Shri Akoljam Sanatomba MC(Cont.Cas(C)) No. 1021 Ref: Cont.Cas(C) No. 521 P a g e | 8 Singh Smt. Akojam Manitombi Devi and Shri Akoljam Yaimachou @Yaimachou Singh as the 8 eight) shops that they have claimed in their counsel s legal notice dated 24 05 2021 as the vacant shops are already occupied by the above mentioned shop occupants occupiers. In other words there are no vacant shops in the New Thoubal Market as claimed by the petitioners in their counsel s legal notice dated 24 04 2021 12. Admittedly the order dated 8.7.2021 passed by the contemnor is in compliance with the order dated 22.4.2021 passed in the writ petitions. That apart challenging the order dated 8.7.2021 the respondents herein have also filed W.P.(C) No.493 of 2021 and the same is pending. 13. According to the respondents in W.P.(C) No.4921 this Court granted interim stay on 6.8.2021 and therefore the question of compliance will not arise and the Contempt Case need not be closed. Admittedly the respondents herein have not filed any appeal against the order dated 22.4.2021 passed in the writ petitions. At this juncture one thing needs to be mentioned that the original order is dated 22.4.2021 and in the said order this Court has given eight weeks time to consider the case of the respondents herein. However within one MC(Cont.Cas(C)) No. 1021 Ref: Cont.Cas(C) No. 521 P a g e | 9 month and two days the respondents herein issued a legal notice to the alleged contemnors seeking to consider for allotment of shops from amongst the nine vacant shops lying in the New Thoubal Market in lieu of the shops that were acquired for construction of the New Thoubal Market failing which Contempt Petition will be filed for the willful and deliberate disobedience of the order dated 22.4.2021. After issuance of the said legal notice on 5.7.2021 the respondents herein filed the Contempt Case. 14. As stated supra since the order dated 8.7.2021 issued by the applicant is in compliance with the order dated 22.4.2021 the applicant was right in contending that the order of this Court dated 22.4.2021 passed in the writ petitions has been duly complied with. 15. Mere disobedience or breach of the Court’s order by the person is not sufficient to constitute civil contempt. Such a disobedience or breach must be willful deliberate and intentional. In order to exercise its power to punish the contemnor the Court has to be satisfied beyond reasonable doubt that the contemnor has willfully deliberately and intentionally violated the Court’s order. MC(Cont.Cas(C)) No. 1021 Ref: Cont.Cas(C) No. 521 P a g e | 10 16. No Court including the Contempt Court is entitled to take trivialities and technicalities into account while finding fault with the conduct of the person against whom contempt proceeding is taken. 17. Where the order has been substantially complied with and a reasonable explanation has been provided for the delay in compliance with the order the contempt will not lie as the violation is not willful and 18. In the instant case there is no proof to show that the contemnor has willfully deliberately and intentionally violated the Court’s order. In fact the applicant being the contemnor has passed the order on 8.7.2021. Though the original order is dated 22.4.2021 and eight weeks time has been granted to the contemnors to consider the claim of the respondents herein and the compliance order came to be passed only on 8.7.2021 beyond the eight weeks period the short delay in passing the order dated 8.7.2021 cannot go against the applicant contemnor. Since the order of this Court dated 22.4.2021 has been substantially complied with the question of contempt will not lie. 19. As stated supra challenging the order dated 8.7.2021 the respondents herein have filed W.P.(C) No.4921 and the same is pending and it is for the respondents to pursue the said writ petition. MC(Cont.Cas(C)) No. 1021 Ref: Cont.Cas(C) No. 521 P a g e | 11 The interim order if any passed in the said writ petition will have no bearing in keeping the Contempt Case pending. That apart the veracity and the legality of passing the order dated 8.7.2021 canvassed by the respondents cannot be gone into in the present proceedings. The learned counsel for the petitioner in the Contempt Cas(C) No. 521 produced the above two judgments 1) 1995 SuppSCC 465 Ltd. & Anr. Vs. Sachidanand Dass & Anr.) and 2)4 SCC 167and the said judgments are not applicable to this case since the case in hand the writ petition order was not challenged by either the petitioner in the contempt petition or the respondents but the petitioner in contempt petition alone has challenged the subsequent compliance order dated 08.07.2021 by way of fresh writ petition in WP(C) No. 4921 and obtained an order of interim stay. Therefore both these judgments cited by the learned counsel for the petitioner in Contempt Cas(C) No. 521 are not applicable to the present MC(Cont.Cas(C)) No. 1021. 21. Therefore this Court is of the view that the order dated 22.4.2021 passed in W.P.(C) Nos.466 4916 and 4118 has been duly complied with by the applicant and resultantly the MC(Cont.Cas(C)) No. 1021 Ref: Cont.Cas(C) No. 521 P a g e | 12 Contempt Case No.58 of 2021 is liable to be closed as substantial compliance has taken place. 22. In the result M.C.(Cont. Case) No.1021 is allowed and consequently the Contempt Case No.521 is closed. Registry is directed to issue copy of this order to both the parties through their WhatsApp e mail. FR NFR Sushil MC(Cont.Cas(C)) No. 1021 Ref: Cont.Cas(C) No. 521

An oversight or typographical error cannot form the basis for a judicial decision if the error is properly explained: Tripura High Court

The petitioner’s counsel may be right in finding out that the defendant cannot resile from a direct statement taken under oath. A mistake, a typographical error, or a confusion, on the other hand, If the mistake is sufficiently clarified, it cannot be used as the basis for a court ruling. The judgement was passed by the High Court of Tripura in the case of Soma Debbarma v. State of Tripura [W.P(C) No.273/2020] by Division Bench consisting of Hon’ble Justice Akil Kureshi & Justice S. G. Chattopadhyay. The facts of the case are the excise authorities of the Government of Tripura issued a notice inviting tenders for retail vending of foreign liquor and country liquor shops under the Gomati district. The petitioner, as well as the respondent, participated in the tender process, the tender was awarded to the respondent. The petitioner challenges this decision of the authorities on the ground that the location of the shop offered by the respondent for running the liquor shop breached the said condition in as much as there was a bathing ghat within the distance of 30.48 meters from the shop. Learned counsel for the petitioner vehemently contended that the petitioner had established that the proposed shop was situated within less than 100 meters of existing bathing ghats and a mosque. The official respondents committed a serious error in awarding the tender to the respondent. He drew our attention to the admission of the respondents in the first affidavit regarding the location of a bathing ghat within less than 100 meters from the shop. He contended that such admission once made cannot be withdrawn. Learned counsel for the respondent opposed the petition and contending that the specially constituted committee has examined these factual aspects. The petitioner has produced no reliable evidence to discard these findings. There is no bathing ghat within the distance of fewer than 100 meters from the shop. Respondent No.6 was the highest bidder and therefore, correctly awarded the contract. The court while clearing the contention of the mosque held that “concerning the location of the Mosque, the petitioner has not taken up this contention in the petition. The surveyor’s sketch does show the location of a mosque at a distance of about 91 meters from the shop. However, in the petition, there is no reference to any such shop with or without reference to the sketch. The respondents cannot be expected to reply to a contention, that too, factual in absence of an averment made by the petitioner on oath in the petition.”

Page HIGH COURT OF TRIPURA W.P(C) No.273 2020 Smt. Soma Debbarma wife of Sri Bikash Kanti Saha resident of village Amarpur Ramthakur Ashram PO Amarpur PS Birganj Sub Division Amarpur Pin 799101. … Petitioner(s). The State of Tripura The Commissioner and Secretary Represented by the Commissioner and Secretary to the Finance Department Government of Tripura having its office at New Secretariat Complex Gurkhabasti Agartala PO Kunjaban PS New Capital Complex Sub Division Sadar District West Tripura to the Finance DepartmentGovernment of Tripura having his office at New Secretariat Complex Gurkhabasti Agartala PO Kunjaban PS New Capital Complex Sub Division Sadar District West Tripura. to the Revenue Department Government of Tripura having his office at New Secretariat Complex Gurkhabasti Agartala PO Kunjaban PS New Capital Complex Sub Division Sadar District West Tripura. Government of Tripura office of the Commissioner of Excise having his office at P.N Complex Gurkhabasti Agartala PO Kunjaban PS New Capital Complex Sub Division Sadar District West Tripura. Government of Tripura office of the Collector of Excise Gomati Tripura District The Commissioner and Secretary The Commissioner of Excise The Collector of Excise Official Respondent(s). Sri Rupan Karmakar son of Late Manindra Karmakar resident of village Amarpur Shantipalli P.O Amarpur P.S Birganj Sub Division Amarpur Pin 799101. Private Respondent. HON’BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON’BLE MR. JUSTICE S. G. CHATTOPADHYAY : Mr. Somik Deb Sr. Advocate. For Petitioner(s) For Respondent(s) : Mr. D. Bhattacharjee Govt. Advocate. Date of hearing and Judgment & Order : 23rd March 2021. Mr. S. M.Chakraborty Sr. Advocate. Whether fit for reporting : NO Page JUDGMENT AND ORDER(Oral) Petitioner has challenged the decision of the official respondents of accepting the price bid of the respondent No. 6 for allotment of rights for sale of liquor at Amarpur F. L. Shop. Brief facts are as under: The excise authorities of Government of Tripura issued a notice inviting tenders on 17.01.2020 for retail vending of foreign liquor and country liquor shops under Gomati district. This advertisement was common for 22 different locations where such shops would be granted licenses one of them was Amarpur F.L. Shop within local limits of Amarpur Nagar Panchayat. The minimum price for duration of the license between the year 2020 21 to 2022 23 was Rs.19 02 775 . This notice contained an important condition for the location of the shop that a tenderer may offer. This was in terms of Rule 26 of Tripura Excise Rules 1990 and the condition read as under: “As per provisions of Rule 26 of Tripura Excise Rules 1990meters from the following namely: Recognized Educational Institutions Religious places of worship bathing ghat Hospitals Factories Office(s) of the recognized political parties Provided that no shop for the sale of liquor shall bevisible from a national or state highway directly accessible from a national or state highway and situated within a distance of 220 meters in case of areas comprised in local bodies with a population not exceeding twenty thousand people and 500 meters in case of all other areas from the outer edge of the National or State highway or of a service lane along the Provided also that if any Recognized Educational Institutions Religious places of public worship bathing ghat Page Hospitals Factories and Offices of recognized Political Parties come into existence subsequent to the establishment of retail vend of Foreign Liquor or Country Liquor the aforesaid distance restrictions shall not apply.” The petitioner as well as respondent No.6 participated in the tender process. There are in all five tenderers who had qualified. The authorities opened the price bids of all these terderers and found that the offer of the respondent No.6 at Rs.85 88 788 was the highest and that of the petitioner at Rs.53 27 771 was second highest. It appears that after obtaining the report of verification by a specially constituted committee which was tendered on 17.01.2020 the tender was awarded to the respondent No.6. In this report copy of which is not produced by the respondents on record but from the original files made available for our perusal as well as that of the counsel for the petitioner it emerges that the committee had verified that the location of the proposed shop did not breach the requirements of Rule 26 of the Tripura Excise Rules 1990 which was incorporated in the tender condition. The committee certified that the proposed site of the shop was beyond 100 meters from any recognized educational institutions religious places of public worship bathing ghats hospitals factories etc. The petitioner challenges this decision of the authorities on the ground that the location of the shop offered by the respondent No.6 for running the liquor shop breached the said condition in as much as there was a bathing ghat within the distance of 30.48 meters from the shop. In support of this contention the petitioner has relied on a surveyor’s report whom the petitioner hired for this purpose. Page The official respondents had filed his first reply on 29th June 2020 in which the deponent had stated as under: “11. That with regard to paragraphs 2 4 & 2.5 I say that the proposed site location of Amarpur F. L. Shop by the private respondentis situated at a distance of less than 100 meters from a nearby bathing ghat in the eastern side of Amarsagar.” Second affidavit came to be filed on behalf of the official respondents on 19th February 2021 in which the above quoted portion of the previous affidavit was sought to be clarified as under: “11. That with regard to paragraphs 2.4 & 2.5 it is stated by the petitioner that the proposed site location of Amarpur FL shop by the Private Respondentis situated at a distance of less than 100 meters from a nearby bathing ghat in the eastern side of Amarsagar.” With respect to the petitioner’s averment that there was a bathing ghat within some 30 meters from the proposed shop in this later affidavit it was clarified as under: “12. Regarding bathing ghat in the eastern side of Amarsagar opposite of Khudiram pally it is pertinent to mention here that there is a retain structure which is pucca from Amarpur bazaar road leading down to Amarsagar. It has 6(six) feet width entrance with 5(five) feet wide pucca steps and there are two steps of 7(seven) feet width at three places i.e. at the beginning after the entrance in the middle down and at the end. Those pucca steps path from Amarpur bazaar road to Amarsagar opposite side of Khudiram pally are mere stairs not a bathing ghat. The proposed site location of Amarpur FL shop conforms to Rules 26 of Tripura Excise Rule 2014. Therefore the claim of the petitioner is found devoid of merit. Hence the contention of the petitioner made in the said paragraph does not have any locus standi and is liable to be That with regard to paragraphs 2.6 to 2.7 I say that the retain structure which is pucca situated in the opposite side of Khudiram Palli Road and near to proposed site location of Amarpur F. L. shop of Sri Rupan Karmakar as mentioned by the petitioner are mere stairs and not a bathing ghat.” The respondent No.6 had filed an affidavit dated 10th July 2020 Page denying the allegation of the petitioner that any objectionable structure was situated within a distance of thus 100 meters from the proposed shop site. In fact it was stated that the so called bathing ghat is classified as a public road the said spot has never been used as a bathing ghat. Based on such averments learned counsel Sri Somik Deb for the petitioner vehemently contended that the petitioner had established that the proposed shop was situated within less than 100 meters of existing bathing ghats and a mosque. The official respondents committed a serious error in awarding the tender to the respondent No.6. He drew our attention to the admission of the respondents in the first affidavit regarding location of a bathing ghat within less than 100 meters from the shop. He contended that such admission once made cannot be withdrawn. Learned Govt. Advocate Sri D. Bhattacharjee and Mr. S. M. Chakraborty Sr. advocate for the private respondent opposed the petition and contending that the specially constituted committee has examined these factual aspects. The petitioner has produced no reliable evidence to discard these findings. There is no bathing ghat within the distance of less than 100 meters from the shop. Respondent No.6 was the highest bidder and therefore correctly awarded the contract. Though in the sketch of the surveyor of the petitioner refers to three sites namely two bathing ghats and one mosque being situated within less than 100 meters from the proposed shop the sketch itself shows the location of only one ghat and a mosque. The ghat referred to by the surveyor is in the northern direction straight above the location of the shop. Further down in the Page same direction is stated to be a mosque. Thus the sketch does not show a second bathing ghat which in the foot note of the surveyor’s report is referred to. With respect to the so called bathing ghat the official respondents as well as the private respondent have categorically stated that there is no such ghat in existence and that it is never used or recognized as a ghat. We have nothing to disbelieve such clear averments made by the official respondents on oath. With respect to the location of the Mosque the petitioner has not taken up this contention in the petition. The surveyor’s sketch does show the location of a mosque at a distance of about 91 meters from the shop. However in the petition there is no reference to any such shop with or without reference to the sketch. The respondents cannot be expected to reply to a contention that too factual in absence of an averment made by the petitioner on oath in the petition. Coming to the question of the so called admission by the official respondents in the first affidavit dated 29th June 2020 this position has been clarified in the subsequent affidavit dated 19th February 2021. Quite apart from contending that the earlier declaration was through over sight the respondents have elaborately pointed out that there is no bathing ghat in existence nearby the shop and the reference of the petitioner to the bathing ghat location is nothing but a 6ft. by 5ft. steps and is not a bathing ghat. Counsel for the petitioner may be correct in pointing out that the defendant cannot resile from a clear admission made on oath. However an oversight or typographical error or misunderstanding cannot form the basis for a judicial decision if the error is properly explained. The crux of the matter is is there a structure in the nature of a bathing ghat within a distance of less than 100 meters from the proposed shop If the answer Page is as in the present case in the negative the petition must fail. In the result petition is dismissed. Pending application(s) if any J. CJ. also stands disposed of.

Opportunity of hearing is a valuable right: Supreme Court

A plea of lack of opportunity to defend its case is a legal plea. The Supreme Court bench consisting of J. Sanjay Kishan Kaul and J. Hrishikesh Roy decided upon the matters of jurisdiction, natural justice and corporate personality in the case of Indian Commodity Exchange Limited v. Neptune Overseas Limited & Ors [Civil Appeal No. 9037 of 2019].   This case consisted of multiple proceedings which resulted in no culmination over the decade. Neptune Overseas Limited (NOL), the respondent-1, is a company registered under the Companies Act, 1956 dealing with export/import and trading in various commodities including rubber with its founder and CEO, Mr. Kailash Ramkishan Gupta who was respondent-2. On 28.11.2010, an independent journalist communicated to the Forward Markets Commission (FMC), alleging trading irregularities within the National Multi Commodity Exchange of India Limited (NMCE) along with an allegation of abuse of power by the Respondents. The FMC, based on this complaint, initiated an inquiry into the NMCE affairs, exercising its powers under Section 8(2) and 8(4) of The Forward Contracts (Regulation) Act, 1952 and issued a notice, giving the Vice Chairman of NMCE and the respondent a period of 10 days to respond. Along with a personal hearing which was subsequently adjourned, parallel proceedings were initiated by the Respondents who filed a Special Civil Application before the Gujarat High Court, challenging the show case notice and, inter alia, raised the issue that the FMC had no jurisdiction, power or authority to commence or continue an enquiry or issue any directions. It was found that the respondents had continuously seeked for adjournment in a bid to raise issue of jurisdiction and were only looking to postpone the proceedings. Upon examination it was found that the Respondents were non-cooperative and were in complete breach of fiduciary responsibility to the NMCE by systematically defrauding, misusing and misappropriating its property and committing a series of crimes. Directions were issued to the NMCE to take actions against the respondent-2.   This was challenged before the Division Bench of the HC who stated that it violated the principles of natural justice and opined that FMC had not supplied respondent-1 with all the documents. SEBI, the successor of FMC, challenged this order by way of SLP before the Supreme Court. Various other proceedings followed under the Securities Appellate Tribunal (SAT) to no result.

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL No.90319 INDIAN COMMODITY EXCHANGE LIMITED …Appellant NEPTUNE OVERSEAS LIMITED & ORS …Respondents Civil Appeal No.629 2020 JUDGMENT SANJAY KISHAN KAUL J A lot of noise but no music! The present case is a classic one where multiple proceedings have been initiated but have resulted in no culmination over a period just short of a decade. And this is not so because of any interdicts from the courts in preventing these legal proceedings yet the proceedings have hardly moved. The result is that the culpability of the first two respondents herein has not been determined thus a cloud hangs over their conduct and that is all 2. We now turn to The Forward Contracts Act 1952 hereinafter referred to as the ‘said Act’ since repealed by the Finance Act 2015) as the proceedings against the first two respondents herein emanated from the powers exercised under the said Act. The said Act aimed to regulate certain matters relating to forward contracts prohibition of options in goods and for other connected matters. A reading of the statement of objects and reasons shows that the said Act was a sequitur to the initial prohibition of forward trading in certain commodities as a result of the Central Government issuing orders under Rule 81 of the Defence of India Rules during the war period. Chapter II of the said Act provides for the Forward Markets Commission an authority to regulate commodities futures market which was established under Section 3 with its functions being provided under Section 4 of the said Act. The functions inter alia were to advise the Central Government in respect of the recognition of or the withdrawal of recognition from any association or in respect of any other matter arising out of the administration of this Act and to keep forward markets under observation. Chapter III deals with the recognition of associations concerned with the regulations and control of forward contracts. An application for such recognition of associations had to be made under Section 5 of the said Act for grant of recognition under Section 6. Section 7 of the said Act dealt with withdrawal of recognition. The Central Government had the power under Section 8 to call for periodical returns or direct inquiries to be made. Suffice to say that it is in exercise of these powers under Section 8(2) of the said Act that the proceedings against Respondent Nos.1 & 2 herein commenced In the aforesaid play of the said Act we now turn to National Multi Commodity Exchange of India Limitedwhich is an association registered under the provisions of the said Act. NMCE is registered with the FMC under Section 14B of the said Act. The subsequent development has been that in pursuance of a scheme of amalgamation concluded in 2018 the Indian Commodity Exchange Limitedwho is the Appellant before us emerged as the successor of NMCE Respondent No. 1 herein Neptune Overseas Limited is a company registered under the Companies Act 1956 dealing with export import and trading in various commodities including rubber This company is the core promoter of NMCE being its largest shareholder with 30.18% shareholding. The role of Mr. Kailash Ramkishan Gupta Respondent No.2 herein was dual in character he was the founder and CEO of NMCE as well as the Managing Director of NOL. The other related development is that the FMC in view of the said Act being repealed itself merged with the Securities and Exchange Board of Indiawith effect from 28.9.2015 The genesis of the dispute is a communication dated 28.11.2010 made by a stated independent journalist to the FMC alleging inter alia trading irregularities within the NMCE along with an allegation of abuse of position by Respondent Nos.1 & 2 herein. The proceedings that transpired thereafter and the related compliance with principles of natural justice form the subject matter of the present litigation The FMC on the basis of the abovementioned complaint initiated an inquiry into the affairs of NMCE on 14.12.2010 exercising powers under Sections 8(2) and 8(4) of the said Act as set out hereinabove read with the Government of India Notification S.O. No.1162 dated 4.5.1960 A detailed show cause notice dated 21.6.2011 was served under Section 4(b) of the said Act. Section 4of the said Act reads as under “4. Functions of the Commission.—The functions of the Commission shall be— b) to keep forward markets under observation and to take such action in relation to them as it may consider necessary in exercise of the powers assigned to it by or under this Act This notice running into about 150 pages was addressed to Respondent No.2 herein in his capacity as Vice Chairman of NMCE and Chairman and Managing Director of Respondent No.1 NOL giving him a period of 10 days from the date of receipt of notice to respond. A personal hearing was fixed for 4.7.2011. Liberty was granted to Respondent No.2 herein to peruse any documents within a period of 7 days from the date of receipt of notice if he so desired. This resulted in a series of communications from 22.6.2011 to 20.7.2011 including the request of Respondent No.2 herein for copies of documents relied upon in the show cause notice a questioning of the jurisdiction of the FMC and repeated requests for adjournments. Most of these letters were by Respondent No.2 herein but on record is also a letter dated 2.7.2011 addressed by Respondent No.1 herein and signed by Respondent No.2 herein. The stand of FMC was that most of the documents were already under the control of Respondent No.2 herein or were either irrelevant or not relied upon. However possibly to put the matter at rest some documents were supplied on 5.7.2011 and the hearing was consequently adjourned to 13.7.2011 In the course of these developments parallel proceedings were initiated by Respondent No.1 herein by filing Special Civil Application No.8377 of 2011 before the Gujarat High Court. These proceedings sought to challenge the show cause notice and inter alia raised the issue that FMC had no jurisdiction power or authority to commence or continue any enquiry or issue any directions.. The learned Single Judge who considered the matter construed the issuance of the show cause notice to Respondent No.1 to be through Respondent No.2 herein Thus in terms of order dated 8.7.2011 it was opined that opportunity of hearing had been and was being provided to Respondent No.1 herein who could furnish a reply to the show cause notice as well as appear personally with material in its support. The principles of natural justice were observed to have been complied with and Respondent No.1 herein was given liberty to appear before the FMC in pursuance to the show cause notice and produce the material in support thereof. The conclusion was that the final view was yet to be taken by the FMC and only a show cause notice had been issued. As such in the absence of any adjudication on merits it was a premature effort on the part of Respondent No.1 herein to approach the High Court 10. On the day of the aforesaid order being passed once again a grievance of entire documentation not being supplied was raised by Respondent No.2 herein. This request was rejected by the FMC with the reasoning that all documents were either available in the public domain or not relevant. The subsequent endeavour of Respondent No.2 herein to seek adjournment on 20.7.2011 in a bid to raise issues of jurisdiction was not accepted. The order of the FMC dated 20.7.2011 recorded that three adjournments had already been granted. Thus the endeavour of Respondent No.2 herein either in his own name or on behalf of Respondent No.1 herein was only to seek postponement of the proceedings. As a last opportunity Respondent Nos.1 and 2 herein were given time in the post lunch recess session to address the FMC on the issue of jurisdiction if they so desired but the counsel for the said respondents only expressed the request for adjournment which was apparently the only instructions to her. The proceedings were thus closed for orders and that order was pronounced on 23.7.2011 The aforesaid order dated 23.7.2011 of the FMC opined against Respondent Nos.1 and 2 herein. The endeavour of Respondent No.2 herein to repeatedly seek adjournments was highlighted especially as the proceedings in the High Court were filed only by Respondent No.1 herein albeit through Respondent No.2 herein. On jurisdiction the FMC clarified that Section 8(2)(b) of the said Act empowers the Central Government to make an inquiry in relation to the affairs of a registered association. The relevant provisions read as under “8. Power of Central Government to call for periodical returns or direct inquiries to be made.— 1) Every recognised association and every member thereof shall furnish to the Central Government such periodical returns relating to its affairs or the affairs of its members or his affairs as the case may be as may be prescribed 2) Without prejudice to the provisions contained in sub sectionappoint one or more persons to make an inquiry in relation to the affairs of such association or the affairs of any of its members and submit a report of the result of such inquiry to the Central Government within such time as may be specified in the order or in the alternative direct the inquiry to be made and the report to be submitted by the governing body of such association acting jointly with one or more representatives of the Central Government and” This power of the Central Government had been delegated to the officers of the FMC by Government Notification S.O. Nos.1162 and 928 dated 4.4.1960 and 12.3.1964 respectively. On examination of merits the attitude and the approach of Respondent No.2 herein was found to be non cooperative. On the basis of the documents gathered and statements recorded during the course of inquiry Respondent No.2 herein was held to be in complete breach of his fiduciary responsibility to the NMCE by systematically defrauding misusing and misappropriating its property and committing a series of crimes under various laws for benefiting himself. Directions were issued to the NMCE to take appropriate legal action against Respondent No.2 herein and his family members who benefitted from his acts In the meantime the parallel proceedings in the High Court before the learned Single Judge discussed aforesaid resulted in an intra court appeal filed by Respondent No.1 herein once again through Respondent No.2 herein in LPA No.1039 2011 filed on 15.7.2011. Interestingly now Respondent No.2 herein filed an impleadment application to implead himself in his personal capacity which was allowed. The appeal was also amended to raise a challenge to the order dated 23.7.2011 which had been passed by the FMC The Division Bench of the Gujarat High Court in terms of its order dated 9.2.2012 allowed the appeal on the short ground that the FMC had not served the show cause notice on Respondent No.1 herein and the NMCE effectively depriving them of the opportunity to present their case before the FMC. Consequently the order of the FMC dated 23.7.2011 was quashed. The violation of the principles of natural justice is all that weighed with the Division Bench without getting into the merits of the case. It also opined that if any documents were in possession of FMC and had not been supplied to Respondent No.1 herein the same should be supplied subject to payment of usual charges The successor entity of the FMC the SEBI challenged this order by way of a Special Leave Petition before this Court being SLP No.10225 10227 of 2012 and in terms of an interim order dated 22.3.2012 the operation of the order of the Division Bench dated 9.2.2012 was stayed. The consequence of this was that the order of the FMC dated 23.7.2011 stood revived. That it had consequences was not in doubt as various proceedings were initiated thereafter both civil and criminal. The matter however remained at this stage before the Supreme Court right till the passing of the order on 7.3.2018 6 years later in terms whereof the order of the High Court was set aside which had re started the proceedings against Respondent Nos.1 and 2 herein. An opportunity was given to the respondents herein to approach the Securities Appellate Tribunal Mumbaiby way of a statutory appeal against the order dated 23.7.2011. A 30 day time period was granted for the same. On the appeal being filed it was held that the SAT “will hear the appeal on merits.” Not only that the interim order passed on 22.3.2012 by this Court was directed to continue to have effect and any proceedings initiated in pursuance of the order dated 23.7.2011 passed by the FMCwas to abide by the final result of the appeal. The judgment of the Division Bench was specifically set aside 16. We may note that one of the main issues before us is the consequence of the aforesaid order in view of what has transpired before the SAT and the High Court thereafter 17. Respondent Nos.1 and 2 herein in pursuance of the aforesaid liberty filed Appeal No.918 before the SAT which passed the order dated 18.10.2019. It appears that the substratum of the pleas raised by Respondent Nos.1 and 2 herein was the lack of adequate and proper opportunity of hearing given to them before passing of the order dated 23.7.2011.The requests for provision of further documents which had been denied earlier and the lack of jurisdiction of the FMC to issue the show cause notice under the said Act were re agitated. The order dated 18.10.2019 of the SAT impugned before this Court is predicated on the absence of any show cause notice to Respondent No.1 herein. This aspect was noted to have been conceded by the FMC before the Division Bench of the High Court along with an assurance to carry out the same The relevant extract in this behalf is as under “9. The aforesaid contentions raised by the learned counsel for the appellants is vehemently contested by Mr. P.S. Champaneri learned Assistant Solicitor General of India and learned Advocate Mr. Navin Pahwa appearing for respondent No.3 and 7 however they have agreed that no show cause notice has been issued either to the appellant No.1 and or respondent No.3 NMC by respondent No.1 Commission. At this stage learned counsel for the respondent No.1 Commission Mr. Champaneri states that they will be issuing a show cause notice to the appellants as well as respondent No.3 as contemplated under the Forward Contracts Regulation) Act 1952 and Forward ContractsRules The concession made on behalf of FMC was relied upon by the SAT to reach a conclusion that once a concession has been made by the concerned authorities themselves and undisputedly no notice was issued to Respondent No. 1 herein and NMCE the proceedings must emanate from the show cause stage. The SAT did take cognizance of the developments that had taken place subsequent to the issuance of show cause notice focusing on the allegedly arbitrary denial of documents to the requests made by Respondent No.2 herein. On the issue of request for adjournment on 20.7.2011 the SAT noted that only two weeks had elapsed from the date when the documents were supplied and thus further request for adjournment could not be said to be unreasonable especially as the documents were voluminous running into thousands of pages. Thus the time period for filing the reply was found to be inadequate. Consequently the order dated 23.7.2011 passed on a Saturday a non working day of the FMC was set aside and a reasonable opportunity was directed to be given to Respondent No.2 herein and the NMCE for the purposes of filing objections reply to the show cause The successor to the FMC SEBI was directed to grant adequate time to Respondent Nos.1 and 2 herein to file their reply and if an application requesting the supply of documents was filed the same was to be dealt with in accordance with law. The issue of jurisdiction was also to be considered and decided by the SEBI in accordance with law The appeals before this Court have emanated under Section 15Z of the Securities and Exchange Board of India Act 1992 Civil Appeal No.90319 having been filed by the Indian Commodity Exchange Limitedwhile Civil Appeal No.6220 is by the SEBI the successor of the FMC with NOL and Mr. Kailash being common respondents. Notice was issued on 2.12.2019 in Civil Appeal No. 9037 2019 and interim order was passed directing status quo with regard to operation of the impugned order to the extent it operated against the appellant. The SEBI’s appeal was tagged with this matter. There are other appeals also but it was agreed that these two appeals should be taken up first as they may have ramifications on the result of those appeals. This was recorded in order dated 11.9.2020. Thus these two appeals were heard and judgment reserved on 5.11.2020 after hearing learned counsels for the parties 21. We have gone through the record before us and perused the synopses placed before us apart from the submissions made in Court The stand of the ICEL becomes relevant to the extent that the order of the SAT is predicated on ICEL not being served the show cause notice This really does not withstand scrutiny for the reason they had not sought so and in fact are themselves in appeal before us. Thus the denial of opportunity to be heard is really being claimed only by Respondent Nos.1 and 2 herein. In fact what has been urged before us by the ICEL is that while the challenge before the Gujarat High Court was laid only by Respondent No.1 herein it is Respondent No.2 herein who was simultaneously seeking adjournments before the FMC on one pretext or the other. This is despite the fact that Respondent Nos.1 and 2 herein were addressing communications to the FMC interchangeably on the same subject matter. As such Respondent No.1 herein was fully aware of the show cause notice and acknowledged the same as one which had been addressed to the said respondent. Not only that there was no grievance ever made at the stage of final hearing before the learned Single Judge about the absence of show cause notice. This aspect was sought to be brought in only at the stage of appeal for the first time that too by amending it after the order dated 23.7.2011 was passed wherein the acts of Respondent No.2 herein of siphoning off money and interlinked issues was stated to require investigation and an adverse finding resulted. However to our mind that is not very relevant at this stage because that would amount to going into the merits of the controversy which is not to be examined by us 23. Mr. Dushyant Dave learned senior counsel appearing for the ICEL sought to emphasise that the two respondents are only playing games when they are really one and the same entity. In a sense it was argued that the corporate veil must be pierced to see what is really the endeavour of the said two respondents. Principles of natural justice it was urged have to be seen in a holistic frame and cannot have a straitjacket formula. It was urged that adequate opportunities had been granted to both the respondents and the third entity for whose benefit the order was passed by the SAT i.e. the NMCE is predecessor entity of the ICEL who itself has come up in appeal against the said order. The communications as well as the proceedings in the High Court all give rise only to one conclusion that the two entities are treated as one and the same by the said entities themselves In order to substantiate the contention learned counsel referred to the following judgments and related principles 1. Chairman Board of Mining Examination and Chief Inspector of Mines and Anr. v. Ramjee1: Compliance of principles of natural justice requires only a substantial compliance and not every miniscule violation would spell illegality Titaghur Paper Mills Co. Ltd. and Anr. v. State of Orissa and Ors.2 and Cement Workers Karamchari Sangh v. Jaipur Udyog Limited and Ors.3: Mere denial of adjournment would not always be violative of principles of natural justice i.e. adjournment is not a birthright Dharampal Satyapal Ltd. v. Deputy Commissioner of Central Excise Gauhati and Ors.4: Principles of natural justice cannot be applied in a straitjacket formula and at times the futility of giving relief is a matter of consideration. It all depends upon the extent to which a person is likely to be affected. Not every case where there is a violation of principles of natural justice would the 1(1977) 2 SCC 256 2(1983) 2 SCC 433 3(2008) 4 SCC 701 4(2015) 8 SCC 519 action be struck down and the matter referred back to the authorities to take a fresh decision after complying with the procedural requirement. Therefore every violation of a facet of natural justice may not lead to the conclusion that order passed is always null and void. The validity of the order has to be decided on the touchstone of prejudice. The ultimate test is always the same viz. the test of prejudice or the test of fair hearing 25. Mr. C.U. Singh learned senior counsel canvassing the case of the SEBI supported the plea raised by ICEL. He laid emphasis on the fact that the judgment of this Court in the earlier proceedings being SLP No.10225 102212 dated 7.3.2018 had put a quietus to the issue of any plea of violation of the principles of natural justice. This submission was based on the fact that the order of the Division Bench of the Gujarat High Court was predicated solely on denial of opportunity of fair hearing and that order had been set aside by the Supreme Court. The relegation of the proceedings to the SAT did not imply in his view that the whole chapter would be reopened because this Court specifically opined that the appeal would be heard “on merits.” It was his submission that any other reading would negate the very words and spirit of the order of this Court. This he sought to support by the fact that in those proceedings this Court in its wisdom considered it appropriate to continue the interim order which in turn meant that all proceedings initiated in pursuance of the order passed on 23.7.2011 would continue subject to the final outcome of the proceedings before the SAT. He also emphasised on the fact that enough opportunity was granted and no prejudice had been caused to Respondent Nos. 1 and 2 herein. No answer had been provided to the act of omission or commission of Respondent Nos.1 and 2 herein as specified in the show cause notice and the inter se relationship of Respondent Nos.1 and 2 herein required a piercing of the corporate veil in view of the gross mismanagement 26. On the other hand the defence of the impugned order was vehemently led by Mr. Rishabh Parikh who did full justice to the task at hand despite two senior counsels on the opposing side. It was his submission that the present proceedings being in the nature of an appeal under Section 15Z of the SEBI Act it must answer the parameters of the provisions. The said provision reads as under “15Z. Appeal to Supreme Court.—Any person aggrieved by any decision or order of the Securities Appellate Tribunal may file an appeal to the Supreme Court within sixty days from the date of communication of the decision or order of the Securities Appellate Tribunal to him on any question of law arising out of such order Provided that the Supreme Court may if it is satisfied that the applicant was prevented by sufficient cause from filing the appeal within the said period allow it to be filed within a further period not exceeding sixty days.” It was his submission that there was no question of law and thus the appeal was not maintainable. On the appeal of the ICEL it was stated that it had no locus to file the appeal as the issue related only to Respondent Nos.1 and 2 herein. But we negate this contention at the threshold itself. ICEL had to approach this Court as failure to serve show cause notice to it was one of the grounds which weighed with the SAT even though ICEL was not making any such claim Learned counsel strongly relied on the fact that the counsel for FMC had conceded before the Division Bench that no show cause notice was ever served upon Respondent No.1 herein and NMCEand whether there were unnecessary adjournments being sought which were declined1 SCC pleas. A plea of lack of opportunity to defend its case is also a legal plea The order read as a whole only gives rise to the conclusion that the hearing was shifted to the SAT instead of before the High Court in view of it being the competent body Similarly the continuation of the interim order passed ealier in those proceedings on 22.3.2012 has to be read in the context of other consequential proceedings having been initiated. The objective was that those proceedings should not be brought to a naught at this stage but even those were to abide by the result of the appeal before the SAT. We may also note with regret that on the one hand it has been contended by the appellant that so many different proceedings have emanated and thus giving a fresh opportunity by issuing a fresh show cause notice having fresh proceedings before the SEBI would serve no effective purpose and yet the summary of those proceedings given to us show hardly any progress. It is not as if those proceedings are anywhere near an advanced stage The impugned order of the SAT dated 18.10.2019 is predicated on a plea of lack of adequate opportunity and there is no examination on merits. The questions thus arises what would be the appropriate directions to be passed since Respondent Nos.1 and 2 have to succeed in view of our aforesaid observations and what will be the nature of 39. We have already taken a view that directions passed by the SAT for the case to begin with the service of fresh show cause notices would not be an appropriate direction. In the conspectus of the factual position from the proceedings which have taken place and the legal principles discussed we are of the view that the following directions would subserve the interest of justice and perfect the rights of the parties No fresh show cause notice is required to be served on Respondent No.1 herein and the show cause notice dated 21.6.2011 would be treated as a show cause notice to both Respondent Nos.1 and 2 herein The documents already asked for by Respondent No.1 and 2 herein and not supplied should be supplied. In order to obtain clarity on this issue we direct that a list of documents sought for by either respondents be supplied to the SEBI within two weeks from the date of this order and those documents are to be supplied by SEBI within two weeks thereafter Respondent Nos.1 and 2 herein are granted opportunity to file their reply to the show cause notice without any further delay within a period of four weeks after receiving aforementioned The SEBI would thereafter proceed to give an opportunity for personal hearing both to Respondent Nos.1 and 2 herein and these proceedings are to go on on a day to day basis and no request for adjournment will be entertained in this behalf from The SEBI would take a final view on the subject matter Needless to say if Respondent Nos.1 and 2 herein are aggrieved by the same the remedy against the same lies before the vii. We make it clear that all pleas as raised by Respondent Nos.1 and 2 herein would be considered by the SEBI legal or factual including but not confined to aspects of jurisdiction. In fact this is the very purpose of relegating the proceedings before the SEBI and not to SAT as the right of appeal is a valuable right to be exercised after adequate opportunity at the first adjudication The effect of the aforesaid direction is that the order of the FMC dated 23.7.2011 has been set aside and a fresh order has to be passed The different proceedings initiated still pending almost at a nascent stage are in pursuance of that order. The natural consequence thus would be that those proceedings would have to be kept in abeyance for the time being till a view is taken by SEBI in pursuance of the directions passed by this order and would have to abide by the decision taken by the SEBI or in appeal arising therefrom. We clarify that were Respondent Nos.1 and 2 herein to fail in their endeavours it will not mean that those other proceedings have to start de novo and can continue from the stage where they are subject of course to the nature of directions passed afresh by SEBI. Really speaking this would not result in much of a delay considering that nothing has happened till now 41. We thus dispose of the appeals with the modification of the impugned order to the aforesaid extent leaving the parties to bear their own costs and with the hope that the proceedings initiated against Respondent Nos.1 and 2 herein at least now see the light of the day in not too far a time ahead November 27 2020 Sanjay Kishan Kaul

While universities cannot dilute the standards prescribed by AICTE, they certainly have the power to stipulate enhanced norms and standards: SC

When the Statutes have not prescribed any conditions for affiliation but have left it to the Syndicate to take care of matters relating to affiliation, the function of the Syndicate to lay down norms and standards by virtue of the powers conferred by Section 30(2), is made free of any fetters. This judgment was delivered by three judge bench comprising hon’ble Chief Justice of India S.A. Bobde, Justice A.S. Bopanna and Justice V. Ramasubramanian at Supreme Court in the matter APJ Abdul Kalam Technological University & anr. v. Jai Bharath College of Management and Engineering Technology & Ors. [ C.A. No. 4016 of 2020].   Aggrieved by the order passed by the Division Bench of the Kerala High Court directing the Vice Chancellor of the University to   reconsider   the   application   for   affiliation   of   a   new   B.Tech course,   submitted  by   the   first   respondent,   which   is   a   self-financing Engineering College, solely on the basis of the extension of   approval  granted   by   the   All   India   Council   for   Technical Education  (hereinafter   referred   to   as   “AICTE”),   the   APJ   Abdul Kalam Technological University, which is a State University and its Vice Chancellor have come up with this appeal. The writ petition filed by the first respondent challenging the   denial   of   affiliation   for   starting   a   new   B.Tech   course   in Artificial Intelligence and Data Science, was taken up along with similar writ petitions filed by other colleges (including those filed by the Colleges, which have now come up with applications for intervention/impleadment and for vacation of interim order) and all of them were disposed of by a learned Judge of the High Court by a Judgment dated 06.08.2020. Not   satisfied   with   the   partial   relief   granted   and   the directions issued by the learned Judge, the first respondent filed a writ appeal in Writ Appeal No.1073 of 2020 before the Division Bench   of   the   High   Court.   The   other   Colleges   who   were   writ petitioners, also filed separate writ appeals. Aggrieved by the said judgment of the Division Bench of the Kerala High Court, the University has come up with the above appeal. It is stated across the Bar that the appellant­ University has   filed   similar   appeals   against   the   very   same   impugned Judgment and those appeals are yet to be numbered. Therefore, when the colleges filed writ appeals and argued about the procedure to be followed under Section 14(6) in the absence of the Statutes, the appellant­ University relied upon the Statutes   issued   on   07.08.2020   and   the   power   of   ratification. Statute No.93 was brought to the notice of the Division Bench to show that all matters relating to affiliation fell within the scope of the powers of the Syndicate. But the Division Bench not only rejected the argument of ratification, but also rejected the reliance placed upon Statute No.93 on the ground that the power under Statute No.93 may relate only to the grant of affiliation of a teaching course or any subject in a teaching course, conducted in any of the colleges which are not affiliated.

to reconsider the application for affiliation of a new B.Tech course submitted by the first respondent which is a self­ of approval granted by the All India Council for Technical Education the APJ Abdul We have heard Mr. Chander Uday Singh learned Senior Counsel appearing for the appellant­University Mr. S Krishnamoorthy learned Counsel appearing for the first respondent­College Ms. Priyanka Prakash learned Counsel appearing for the second respondent­State and Mr. Anil Soni learned Counsel appearing for the third respondent­AICTE. We have also heard Mr. C. Arayama Sundaram Mr. Gopal Sankaranarayanan and Mr. P.S. Narasimha learned Senior appearing the applicants seeking date is that there are 149 Engineering Colleges in the State of In addition there are also six Central Government Therefore with a view to regulate technical education in the State the State of Kerala enacted the APJ Abdul Kalam University Act”). Some of the Objects of the University as b) to improve the academic standards of the graduate postgraduate and research programmes in engineering to substantially increase enrolment in Postgraduate education and research programmes in the colleges and institutions with the aim of promoting engineering research for multidisciplinary applied research in specific thematic to improve the learning skills of the students by constantly and continuously improving and upgrading the improvement programmes in the field of technical The powers and functions of the University enlisted in iii) to lay down the norms and standards for the establishment maintenance administration supervision and recognition of colleges and centres maintained by the Act and the Statutes Ordinances and Regulations and to withdraw affiliation of colleges obtained in violation of to confer academic autonomy to affiliated colleges institutions or a department of the affiliated colleges or to hold examinations and to confer degrees postgraduate degrees diplomas certificates and other the University unless exempted therefrom in the public interest the management of colleges or institutions management of such college or institution are prima facie evident to the committee of enquiry appointed by the Sections 60 to 66 provide for affiliation and recognition procedure for permission continuation of affiliation withdrawal of affiliation etc. Section 60 of the Act which prescribes the conditions subject to which affiliation can be granted by the 60. Affiliation and recognition.­ The University can affiliate any of the Engineering Colleges or Institutions Private unaided self­financing educational agencies which before the date of commencement of this Act remained affiliated to the different Universities except Deemed Universities in the State of Kerala provided they meet the criteria prescribed under this Act Ordinances and Statutes for affiliation including but not confined to availability of faculty administrative machinery criteria can be affiliated to the University as regular colleges or autonomous colleges colleges with from the date of commencement of this Act subject to the in respect of the students admitted to Engineering courses shall continue till those batches of students complete their courses the examinations of all such students shall be conducted by the Universities to which they were attached degrees postgraduate degrees or diplomas or other Provided that the institutions in the technological departments or their respective constituent colleges or the engineering colleges or teaching institutions under the by the Central Government shall not come under the The Educational Agency applying for affiliation or recognition and whose college or institution has been field in the State rules made thereunder and Statutes Ordinances Regulations standing orders and colleges receiving financial assistance from the of study shall not exceed the limits prescribed from time to time by the University the Government Central or State Councils or authorities in the facilities such as building laboratories libraries prescribed by Statutes Ordinances and Regulations that the financial resources of the college or non­teaching staff of the affiliated colleges and the prescribed by the University and which shall be teaching or training or research efficiently employees and the facilities of the college to be affiliated shall be made available for conducting viii) that the directions and orders issued by the Chancellor Vice­Chancellor and other officers of the under the provisions of this Act Statutes Ordinances Legislature in this regard shall be complied with x) that the college or institution shall not be closed the college or institution including building and of the amount paid as a grant­in­aid by the Government or the University Grants Commission While section 60 extracted above lays down in detail the granted to an institution Section 63 of the University Act recognised institution may apply for continuation of The University shall follow the procedure prescribed in 2) The affiliated college or recognised institution may of study and the same shall be considered by the University following the procedures or rules prescribed affiliated college may apply for permanent affiliation in the manner as may be prescribed in the Statutes and the The first respondent is a self­financing Institution which was earlier offering B.Tech courses in five disciplines with an After closing the course in one particular discipline the first Data Science” with a permitted annual intake of 60 students from the Academic Year 2020­21. The application was in 11. On 13.06.2020 AICTE granted approval to the first respondent for starting the newly proposed course even while affiliation to the appellant­University in February March 2020 self­financing engineering colleges. As against the permitted intake of 58 165 students for the academic year 2015­16 only 37 007 students got admitted leaving 19 468 seats vacant. The number of vacant seats rose to 20 038 in the academic year Order that permission for starting new courses in Engineering shall be granted only if three conditions are satisfied namely: that the admission of students in the previous academic years should least one of the existing programs should have NBA accreditation ii) that the average annual intake of the institution for the intake that the proposed programme should have AICTE approval and NOC from State Government and that the Thereafter a sub­committee was constituted for the purpose of recommending affiliation for new courses or programmes for the affiliated colleges who have submitted applications for starting new programmes. This sub­committee resolved in its meeting held on 20.03.2020 to suggest the following criteria for the consideration of the Syndicate of the The sub­committee examined all the 50 proposals received till 19­03­2020 from various colleges for granting affiliation to new programs additional intakes. Upon scrutiny of each application in line with the criteria suggested by the Syndicate as cited above 21 institutions Accordingly the sub­committee recommends that the proposals from these 21 institutions for starting new for BVoC courses be considered by the Syndicate for The sub­committee identified two case wherein the institutions are having NBA accreditation but with be framed in a time bound manner well before the Finding that the Government Order G.O. No.1039 dated 22.06.2019 and the resolution of the Syndicate dated 04.02.2020 has led to an unfavourable climate with the sub­ committee not recommending the grant of affiliation for their proposed new course the first respondent­College filed a writ petition in Writ Petition No.12709 of 2020 before the High Court of Kerala. It appears that the writ petition was filed on 23.06.2020 seeking the following reliefs namely: to set aside the Government Order dated 22.06.2019 to direct the the academic year 2020­21 to quash the resolution of the Syndicate dated 04.02.2020 as communicated by the Order of University to consider the application for affiliation of the proposed course without insisting on NBA accreditation and By sheer coincidence the 13th meeting of the Syndicate of the appellant­University was held on 24.06.2020 the day by a total of nine persons of which one was the Principal Kerala and another was the Director of Technical Education The rest were academicians. In this meeting the Syndicate examined the list of colleges which had applied for new courses programmes without any NBA accreditation. Finding that even colleges which did not have NBA accreditation had than 50% pass for the outgoing students at the time of application for affiliation that the Institution should have Though the first respondent filed the writ petition on 23.06.2020 challenging the order of the University dated 10.06.2020 and though the earlier Syndicate Resolution dated 04.02.2020 stood modified by the next Syndicate orders impugned in the writ petition stood amended by the time the writ petition was heard but the the denial of affiliation for starting a new B.Tech course in by a Judgment dated 06.08.2020. By the said Judgment the 14 of the University Act read with Section 30(2)(xiv) the the Registrar dated 10.06.2020 would be applicable to both Syndicate dated 24.06.2020 NOC from the State Government and NBA accreditation are no longer necessary that as a liable to be set aside and that the University may have to reconsider one portion of its decision dated 24.06.2020 after Handbook contained a recommendation to discourage the creation of additional seats in traditional disciplines but to to emerging new technologies. Clause 7 of Annexure 14 made accreditation mandatory for increase in intake starting new Not satisfied with the partial relief granted and the Bench of the High Court. The other Colleges who were writ this appeal the Division Bench partially allowed the writ appeals decisions dated 04.02.2020 the very power of the University to go beyond 25. On the first issue revolving around the power of the the procedure prescribed in the Statutes. Admittedly the first this power in the opinion of the High Court has to be exercised by the Vice Chancellor with the approval of the Board of the matter back to the Vice Chancellor to follow the course of It is relevant to note at this stage that the power of the it did as per its Resolutions was upheld by the learned Single of the learned Single Judge was delivered on 06.08.2020 Statutes of the University to lay down norms for affiliation for additional courses. However on the very next day namely about the procedure to be followed under Section 14(6) in the Statutes issued on 07.08.2020 and the power of ratification the powers of the Syndicate. But the Division Bench not only Statute No.93 may relate only to the grant of affiliation of a Section 63(2) which we have already extracted in paragraph 9 additional courses to an affiliated college or recognized norms and standards. The Division Bench overlooked the fact by the Syndicate first on 04.02.2020 as communicated by the of affiliation for additional courses. The challenge was to the and standards but deals only with the grant of affiliation for to believe that there is an emergency which requires immediate action to be taken he shall take such action as he thinks necessary and shall submit for approval in the taken by him to such authority or body which in the ordinary course would have dealt with the matter. In the the authority on the issue of existence of such an emergency or on the authority on the issue of existence of such an emergency or on the action taken or on both the matter shall be referred to the Chancellor whose decision Where any matter is required to be regulated by the Vice­Chancellor thinks necessary and shall as soon as 30. On a reading of Section 14(6) the High court came to the conclusion that the Vice Chancellor in the absence of Statutes but if he does so he has to take the approval of the Board of uses the words “Board of Governors or other authority or body concerned for approval”. Therefore it is not necessary that the Vice­Chancellor after issuing directions should take the In the case on hand the Syndicate of the University comprised of nine persons including the Vice Chancellor the Principal Secretary to the Higher Education Department of the few academicians. All that the Syndicate wanted from the Colleges seeking affiliation for additional courses was the pass for the outgoing students at the time of application for affiliation most recent academic audit overall score of “Good” and three years average intake of more than 50% of the University in accordance with the provisions of the Act the 8 which confers power upon the University to make Statutes Under Section 22 as it was originally drafted the University shall have a Board of Governors an Executive Committee the Academic Committee the Research Council and such other A.P.J. Abdul Kalam Technological University Act was changed to ‘Academic Council’ and the nomenclature of ‘Executive Committee’ was changed to ‘Syndicate’. Therefore wherever there was a reference in the Act to the ‘Executive Committee’ it had to be construed as a reference to the of Section 30 lists out the powers available to the Syndicate iii) to propose norms and standards for affiliating colleges as regular colleges or autonomous colleges or Thus the source of power for the Syndicate to prescribe and the Statutes”. So if there is something in the Act or the then the Syndicate may be bound by such prescription. But if all then it cannot be said that the power itself is unavailable out of the University Statutes. Therefore the absence of Statutes till they were made for the first time on 07.08.2020 did under Section 14(6) overlooking for a moment that the power under Section 30(2)(iii) would not become otiose due to the Section 42 of the Act which speaks about the issue of the Statutes makes it clear that “the conditions and procedures for affiliation of Colleges and for withdrawing the affiliation of colleges” is one of the matters that could be provided for in the clear that the Statutes can provide for the conditions and procedure for affiliation. The absence of the Statutes on the ground that there were no Even assuming for a moment that the absence of the Statutes would take one automatically to Section 14(6) the Chancellor who has the power to regulate any matter which is the Vice Chancellor may first regulate the matter by issuing we do so it can be seen that it was the Syndicate chaired by the Vice Chancellor which took the impugned decisions in its meetings held on 04.02.2020 and 24.06.2020 and hence the prescription of norms by the Syndicate chaired by the Vice In any case once the Statutes were issued on 07.08.2020 the vacuum sought to be filled up by Section 14(6) also disappeared. Under Section 43(1) of the Act the State Government has the power to issue the first Statutes of the curtail the power of the Syndicate to lay down norms and standards. Under Clause of Section 42 the Statutes may Syndicate to prescribe the conditions. Statute No.93 reads as To grant exemption or reduction in the following mattes and also other mattes not specified here below of study or any subject in a course of study not Therefore the norms prescribed by the Syndicate in its that at least 50% of the outgoing students had passed their colleges can demand affiliation for creating additional courses role of the appellant­University vis­a­vis AICTE. A little The AICTE was actually set up in 1945 as a National Expert Body to advice the Central and State Governments for be vested with statutory powers to regulate and maintain standards of Technical Education in the country. Therefore a National Working Group was set up in November 1985. On the basis of the recommendations made by the National Working Group the AICTE Act 1987 was enacted. Section 23(1) of the AICTE Act empowers the Council to make regulations not inconsistent with the provisions of the Act and the Rules may be necessary for ensuring coordinated and integrated development of Technical and Management Education and courses curricula physical and instrumental facilities staff pattern staff qualifications quality instructions assessment and examinations. Clause(o) empowers the Council to provide Universities imparting technical education. Clause(k) of Sub­ for starting new Technical Institutions and for introduction of new courses or programmes in consultation with the agencies Regulations framed by the AICTE does not include any of the the Council are to be regulated the procedure for conducting of service of officers and employees of the Council the constitution and powers of the Board of Studies etc. But Sub­ section of Section 23 makes it clear that the items listed make Regulations under Sub­section for carrying out the purposes of the Act. This is why all Regulations are issued by Seventh Schedule to the Constitution. The A.P.J. Abdul Kalam Technological University Act issued by the Kerala State In R. Chitralekha vs. State of Mysore and Others1 the Act conjointly. The Court pointed out that a State Law admissions to colleges it cannot be said that it would be The decision of the Supreme Court in R. Chitralekha K. Purushotham Reddy arose under very peculiar 1986 an Act known as Andhra Pradesh Commissionerate of Higher Education Act 1986. The constitutional validity of the said Act was questioned on the ground of lack of legislative competence in view of the University Grants Commission Act 1956. Though a Full Bench of the High Court rejected the challenge the Supreme Court declared the Act as unconstitutional by its judgment in Osmania University Teachers’ Association vs. State of Andhra Pradesh and Court as unconstitutional. Therefore the matter was carried to this Court. A Two Member Bench of this Court doubted the correctness of the decision in Osmania University Teachers’ Association and hence the matter was referred to a three­member Bench. The three­member Bench rejected the challenge to the State Act by following the decision in R this Court held in Bharathidasan University and Another vs the status authority and autonomous functioning of the That even the State Government can prescribe higher member Bench of this court in State of T.N. and Another vs S.V. Bratheep and Others6. This principle was later applied in the case of Universities in Visveswaraiah i) While prescribing the eligibility criteria for admission to adversely affect the standards laid down by the Central Body AICTE. The term “adversely affect the standards” refers to lowering of the norms laid down by Central that where seats remain unfilled the state authorities cannot deny admission to any student satisfying the by the State University would cease to apply or that the to modify the eligibility criteria fixed by them they will are filled but to ensure that excellence in standards of eligibility criteria for admissions keeping in balance the need to maintain excellence and high standard in higher education on the one hand and the need to maintain a Visveswaraiah principles were reiterated in Others8. The legal position summarised in paragraph 14 of the report in Visveswaraiah (extracted above) were quoted with approval by the Constitution Bench in Modern Dental No. IV framed for consideration by the Constitution Bench 15 SCC 242 competence of the State of Madhya Pradesh”. While i) that the decision in Dr. Preeti Srivastava and Another vs altogether from admissions and that the observations in In the concurring and supplementing opinion rendered by R Banumathi J. in Modern Dental College the legal to Government Education Department Thiruvanathapuram Kerala State and Another12 Mata Gujri Memorial Medical College vs. State of Bihar and Others13and Rungta Engineering College Bhilai and Another vs .Chattisgarh Swami Vivekanand Technical AICTE Regulations and the Approval Process Handbook 3 decisions are distinguishable. In Jaya Gokul Educational Trust the question whether the State Government as a matter of policy can decline to grant approval for the establishment of a new Engineering College in view of the perception of the State Government that the opening of a new Thereafter in Bharathidasan University the Supreme Court noted Jaya Gokul Educational Trust on which the High Court placed heavy reliance this Court relied upon the decisions in State of T.N. and Another vs. Adhiyaman Educational and Research Institute and Others15 and Jaya Gokul. In Adhiyaman this Court held that in the case of Act and the University but the Central Act and the Council Rungta Engineering College did not take note of Bharathidasan University B.V. Bratheep Visveswaraiah and Mahatma Gandhi University. Therefore it cannot be said before this Court supporting the case of the first Respondent College and branding the fixation of additional norms and developments that have taken place after 2012 on the AICTE After the advent of AICTE Regulations 2012 the applications for extension of approvals are processed by AICTE as prescribed by AICTE are found to be available on paper online. The AICTE Regulations 2020 also require under Regulation 5.6.a. that existing institutions should submit Handbook for 2020­21 makes it clear that the extension of approval will be based on self­disclosure. Paragraph 13 of the counter affidavit of the AICTE contains an extract of Clause inspections and take penal action against colleges for false not serve any purpose for the students who get admitted to students will get compensated when penal action is taken against colleges which host false information online in their obliged to issue degrees and whose reputation is inextricably may have to face the music and hence their role cannot be Human Resources Development of the Government of India launched an initiative in September 2015 known as National parameters such as: Teaching Learning and Resources Graduation Outcomes iv) Outreach and Inclusivity andPeer Perception. No State their own performance is being measured by international standards. Therefore the power of the universities to prescribe cost of repetition we point out that while universities cannot 60. Accordingly the appeal is allowed and the impugned the Syndicate on 24.06.2020 in modification of the earlier resolution dated 04.02.2020 is upheld. As a corollary the consequential actions if any of the University as regards the first respondent­College are also upheld. The applications for impleadment intervention are dismissed and the other pending applications if any shall stand disposed of. There will be no

Eligible daily wage workers employed by the state should be regularised as per the relevant laws and schemes without discrimination: Supreme Court of India

When daily wage workers employed by the state become eligible for regularisation as per the relevant laws or state government schemes, the state must grant permanency to all without any partiality or discrimination. This was held by a bench of the Supreme Court of India consisting of Justice L. Nageswara Rao and Justice Aniruddha Bose in the case of Vice Chancellor Anand Agriculture University v Kanubhai Nanubhai Vaghela and Anr. [Civil Appeal No. 4444 of 2021] on 26th July 2021. The appellant university, i.e., Anand Agriculture University engaged daily wage workers at different agricultural centres, who were skilled, semi-skilled, unskilled or field labourers. An industrial dispute was raised by the workers seeking regularisation of their services. Taking into consideration, the relevant laws and state government schemes, the Industrial Tribunal passed a judgement directing the appellant to regularize the services of all the daily wage workers who have completed 10 years of services as on 1st January 1993 with pay, allowances and other necessary allowances and benefits due for Class IV employees. The matter was taken to the High Court of Gujarat, where the industrial tribunal’s judgement was set aside and the appellant was directed to only make a payment to the workmen at the minimum of the pay scale and to regularise all the workers who have completed 10 years or more of continuous service with a minimum of 240 days in each calendar year which was outlined as per the relevant schemes made by the state of Gujarat. The appellant filed another appeal against the High Court order stating that it did not have the means to grant permanency to all the daily wage workers who were eligible for it. It was also contended by the university that the workers were not entitled to getting Class IV wages retrospectively. The Supreme Court declared that financial stringency cannot be used as a ground to deprive the daily wage labourers of the right to regularisation as per the relevant laws and scheme. It was also noticed by the court that the University was arbitral and selective in choosing which of the daily wage workers were being granted permanency.

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

High Court in exercise of its inherent power can quash FIR u/s 482 Cr.P.C. to prevent the abuse of the process of law and to secure the ends of justice: High Court of Delhi

Quashing of criminal proceedings is called for only in a case where the complaint does not disclose any offence, or is frivolous, vexatious, or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same. It is not necessary that a meticulous analysis of the case should be done before the trial to find out whether the case would end in conviction or acquittal. These were stated by High Court of Delhi consisting, Justice Subramonium Prasad in the case of Dr. Karunakar Patra vs. State [W.P.(CRL) 502/2021] on 24.01.2022. The facts of the case are that when the Petitioner went to his hometown with his family, during that time the cemented water tank that had been constructed for his flat on the roof top was demolished by one Mrs. Meena Kumar (Respondent). The Respondent subsequently constructed a room and toilet, and in the process, broke the pipe that would be used to supply water from the water tank to the Petitioner’s flat. When the Petitioner returned, he was shocked to see that there was no water and when he objected to the illegality of the constructions, respondent and her family assured the Petitioner that they would reconstruct it. However, they failed to do so and the Petitioner installed a plastic water tank with his own money. The Petitioner’s wife has made several requests as well as wrote multiple letters to the DDA authorities regarding the illegal construction instituted by Respondent. As a consequence of the complaints, Respondent and her son, abused and threatened the Petitioner’s wife along with the entire family with dire consequences. Thereafter, the Petitioner was attacked by one Mohan Singh who allegedly conspired with Respondent. Respondent in collusion with the police, lodged an FIR. It was stated that without giving a copy of the FIR to the Petitioner, the police took the Petitioner to the police station and asked him to pay Rs. 5,00,000 as a bribe to settle the matter. The learned Counsel for the petitioner submitted that the instant FIR deserves to be quashed as the same has been lodged with a mala fide intent and was an attempt to coerce and arm-twist the Petitioner into withdrawing the complaint that has been lodged by the Petitioner’s wife against the son of Respondent who is a habitual offender. He has submitted that more than 20 complaints have been filed by the Petitioner’s wife against Respondent and her family members, and that the same are pending before various authorities. It was further submitted that the instant FIR was an abuse of the process of law and was only filed after the Petitioner’s wife had filed the civil suit and then filed a written complaint against Respondent’s son. The learned Counsel contended that this Court has the power u/s 482 Cr.P.C. to quash the instant FIR and placed on record multiple judgements to buttress this submission. The learned Counsel for the respondent submitted that the petitioner and his wife are habitual complainants and that both of them have filed several complaints regarding the construction that took place in their neighbourhood. He stated that the petitioner is an extortionist and that allegations made in his petition are false and baseless. It was further contended that the inherent powers of this Court could not be invoked to quash criminal proceedings involving serious and heinous crimes which are not private in nature and has a serious impact upon society. The High Court of Delhi held that quashing of criminal proceedings is called for only in a case where the complaint does not disclose any offence, or is frivolous, vexatious, or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same. It is not necessary that a meticulous analysis of the case should be done before the trial to find out whether the case would end in conviction or acquittal. If it appears on a reading of the complaint and consideration of the allegations therein, in light of the statement made on oath that the ingredients of the offence are disclosed, there would be no justification for the High Court to interfere. Furthermore, a reading of the Status Report also does not reveal anything about the offences being referred to in the impugned FIR. The Status Report states that the Petitioner and his wife were habitual complainants and have filed multiple complaints against the construction that would take place in the neighbourhood, and therefore, it is evident that the instant FIR was maliciously instituted with an ulterior motive for wreaking vengeance on the Petitioner. The Court, therefore, in exercise of its inherent power to quashed FIR under Sections 354A/506 IPC to prevent the abuse of the process of any Court and to secure the ends of justice. With the above observations, this petition was allowed.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 24th January 2022 IN THE MATTER OF: W.P.(CRL) 502 2021 & CRL.M.A. 3511 2021 DR KARUNAKAR PATRA ..... Petitioner Through Mr. Kumar Piyush Pushkar Advocate ..... Respondent Through Mr. Chirag Khurana Advocate for Mr. Ashish Aggarwal ASC for the State Complainant Respondent No.2 Bhayana HON BLE MR. JUSTICE SUBRAMONIUM PRASAD SUBRAMONIUM PRASAD J. This petition has been filed under Article 226 227 of the Constitution of India 1950 read with Section 482 Cr.P.C. seeking the quashing of FIR No. 89 2021 dated 07.02.2021 registered at PS Jahangir Puri under Sections 354A 506 of the Indian Penal Code 1860502 2021 was demolished by one Mrs. Meena Kumar Respondent No.2. The Respondent No. 2 subsequently constructed a room and toilet and in the process broke the pipe that would be used to supply water from the water tank to the Petitioner’s flat. When the Petitioner returned he was shocked to see that there was no water and when he objected illegality of constructions Respondent No.2 and her family assured the Petitioner that they would reconstruct it. However they failed to do so and the Petitioner installed a plastic water tank with his own money. It is stated that the Petitioner’s wife suffers from multiple ailments and that the illegal construction is posing a serious threat to her life as it is blocking ventilation. The Petitioner’s wife has made several requests as well as wrote multiple letters to the DDA authorities regarding the illegal construction instituted by Respondent No.2 and her family. Multiple representations were also given to the police authorities however neither the DDA nor the police acted upon these complaints. It is stated that the laxity on the part of these authorities was due to the fact that Respondent No.2’s daughter in law was a Constable with the Delhi Police. It is stated that as a consequence of the complaints Respondent No.2 and her son namely Jatin abused and threatened the Petitioner’s wife along with the entire family with dire consequences. Thereafter the Petitioner’s wife lodged a criminal complaint dated 19.01.2017 at PS Jahangir Puri against W.P.502 2021 Respondent No.2 Jatin and the daughter in law. However no FIR was registered despite the disclosure of a cognizable offence. It is stated that Jatin again molested the Petitioner’s wife as a result of which she called up the police. However due to police pressure the Petitioner’s wife was forced to compromise with Jatin and the latter submitted an apology letter dated 27.07.2018. It is stated that an RTI dated 12.01.2017 filed by the Petitioner’s wife to enquire about the details regarding the action taken by DDA against the illegal constructions revealed that DDA claimed to have information about them. Accordingly the Petitioner’s wife filed a Civil Suit vide Suit No. 826 2017 dated 23.10.2020 seeking demolition of the illegal construction with Respondent No.2 being made party to that suit as Respondent No.8 therein. It is stated that on 26.10.2020 the Petitioner was attacked by one Mohan Singh who allegedly conspired with Respondent No.2 who had apparently assured him that no action would be taken by the police against him on account of her daughter in law working with Delhi Police. The Petitioner thereafter filed a complaint at PS Jahangir Puri and the police register a non cognizable report dated 28.10.20202 under Sections 323 506 IPC. However no FIR was registered. It is stated that on 21.11.2020 infuriated by the filing of the civil suit Jatin started abusing the Petitioner’s wife and threatened her with dire consequences and as a result the Petitioner’s wife submitted a W.P.502 2021 written complaint dated 21.11.2020 at PS Jahangir Puri. Yet again no FIR was registered. It is stated that in response to the written complaint the police called the Petitioner and pressurized the Petitioner and his wife to compromise the matter. On their refusal to do so it is stated that Respondent No.2 in collusion with the police lodged the instant impugned FIR on 07.02.2021. It is stated that without giving a copy of the FIR to the Petitioner the police took the Petitioner to the police station and asked him to pay Rs. 5 00 000 as a bribe to settle the matter. It is stated that the Petitioner along with his wife were let off around 12:00 AM only after the intervention of his lawyer. It is stated that the Petitioner has been asked to join investigation at odd hours on several occasions. 3. Mr. Kumar Piyush Pushkar learned Counsel appearing for the Petitioner has submitted that the instant FIR deserves to be quashed as the same has been lodged with a mala fide intent and is an attempt to coerce and arm twist the Petitioner into withdrawing the complaint that has been lodged by the Petitioner’s wife against the son of Respondent No.2 Jatin who is a habitual offender. He has submitted that more than 20 complaints have been filed by the Petitioner’s wife against Respondent No.2 and her family members and that the same are pending before various authorities. He has submitted that the instant impugned FIR contains nothing but bald allegations and has been registered in connivance with the police as the daughter in law of Respondent No.2 is a part of Delhi Police. 4. Mr. Pushkar has submitted that the instant FIR is an abuse of the W.P.502 2021 process of law and was only filed after the Petitioner’s wife had filed the civil suit and then filed a written complaint against Respondent No.2’s son. He has argued that the ambiguous general allegations against the Petitioner have been made without mentioning the date and time of the offence and therefore are indicative of how the same are manufactured and concocted. He has submitted that no evidence or proof has been forwarded by Respondent No.2 to substantiate her allegations and therefore it can be presumed that the same is false frivolous malicious and vexatious in nature. The learned Counsel has submitted that this Court has the power under Section 482 Cr.P.C. to quash the instant FIR and has placed on record multiple judgements to buttress this submission. He has further informed this Court that the Petitioner is a man of high stature who has been teaching as a professor at Delhi University and that the instant FIR taints his reputation and thereby closes all the doors to future prospects for the Petitioner. He has submitted that there also exists CCTV footage which proves that the Petitioner did not commit the alleged acts against Respondent No.2. Per contra Mr. Ashish Aggarwal learned ASC for the State has submitted that the Petitioner and his wife are habitual complainants and that both of them have filed several complaints regarding the construction that has taken place in their neighborhood. He has submitted that the regarding their complaints of illegal construction letters had indeed been sent to the Municipal Corporation of Delhifor taking necessary action and that the request had also been sent to the SDM for taking further action. He has stated that appropriate action has been taken as per the law on each and every complaint which has been filed by the Petitioner and his wife. The learned ASC has brought to the notice of this Court that on W.P.502 2021 27.02.2021 the Petitioner had been dismissed from his RWA secretary post for abusing his position and that these complaints were solely filed against the residents as the Petitioner was angry about his removal. He has argued that the son of Respondent No.2 Jatin does not live in that neighborhood and only visits his parents occasionally. He has further stated that on 26.10.2020 Kalandra under Sections 106 150 Cr.P.C. had been prepared against the Petitioner his wife and their neighbor. 8. Mr. Madhusudan Bhayana learned Counsel for Respondent No.2 Complainant has also argued and placed his written submissions on record. These submissions state that the Petitioner is an extortionist and that allegations made in his petition are false and baseless. The written submissions further state that in Parbatbhai Aahir & Ors. v. State of Gujarat Anr. the Supreme Court had laid down broad principles in relation to Section 482 Cr.P.C. and had stated that the inherent powers of this Court could not be invoked to quash criminal proceedings involving serious and heinous crimes which were not private in nature and had a serious impact upon society. Further it has been stated that sexual harassment cases cannot be quashed under Section 226 227 of the Constitution of India and same needs to be decided through the process of Heard Mr. Kumar Piyush Pushkar learned Counsel for the Petitioner Mr. Ashish Aggarwal learned ASC for the State and Mr. Madhusudan Bhayana learned Counsel for Respondent No.2 Complainant and perused the material on record. 10. The Supreme Court has time and again laid down the parameters that must be adhered to by a High Court while exercising its inherent power W.P.502 2021 under Section 482 Cr.P.C. to quash an FIR. Along with the parameters it has been consistently observed by the Apex Court that the inherent power in a matter of quashment of FIR has to be exercised sparingly and with caution and only when such exercise is justified by the test specifically laid down in the provision itself. In this context it would be pertinent to reproduce Section 482 Cr.P.C.: 482. Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice." In State of Haryana and Ors. v. Bhajan Lal and Ors. 1992 SuppSCC 335 the Supreme Court provided a precise clearly defined set of inflexible guidelines laying down instances where such an inherent power could be exercised for quashment of an FIR. The relevant portion of that judgment has been reproduced as under: 102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice though it may not be possible to lay down any precise clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad W.P.502 2021 kinds of cases wherein such power should be exercised. 1) Where the allegations made 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 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 ActW.P.502 2021 to the institution and continuance of the proceedings and or where there is a specific provision in the Code or the concerned Act providing efficacious redress for the grievance of the aggrieved party. 7) Where a criminal proceeding is manifestly attended with mala fide and or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 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 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." 12. Therefore quashing of criminal proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate it is open to the High Court to quash the same. It is not necessary that a meticulous analysis of the case should be done before the trial to find out whether the case would end in conviction or acquittal. If it appears on a reading of the complaint and consideration of the allegations therein in light of the statement made on oath that the ingredients of the offence are disclosed there would be no justification for the High Court to interfere14 W.P.502 2021 SCC 350]. 13. A perusal of the material on record in the present case in this Court’s considered opinion reveals that the contents of the FIR are sketchy in nature and are void of any specifics regarding the offences which have allegedly been committed. While this Court is cognizant of the fact that an FIR is not an encyclopaedia which must disclose all facts and details however in the instant case a bare reading of the impugned FIR No.89 2021 prima facie indicates that the FIR arises out of bald allegations and contradictory statements. 14. Furthermore a reading of the Status Report also does not reveal anything about the offences being referred to in the impugned FIR. The Status Report states that the Petitioner and his wife were habitual complainants and have filed multiple complaints against the construction that would take place in the neighbourhood and therefore it is evident that the instant FIR was maliciously instituted with an ulterior motive for wreaking vengeance on the Petitioner and with a view to spite him and his wife due to a private and personal grudge. A comprehensive reading of the matter at hand reveals that the impugned FIR was merely a counterblast and was solely registered to arm twist the Petitioner and his wife into withdrawing the complaints that had been filed against Respondent No.2 and her family. 15. This Court expresses its anguish at how provisions such as Sections 354A 506 IPC are falsely invoked at the drop of a hat to register one’s displeasure at the conduct of another individual. This merely trivialises the offence of sexual harassment and casts a doubt on the veracity of the allegations filed by every other victim who has in reality faced sexual W.P.502 2021 harassment thereby setting back the cause of women empowerment. 16. This Court therefore deems it fit to exercise its inherent power to quash FIR No. 89 2021 dated 07.02.2021 registered at PS Jahangir Puri under Sections 354A 506 IPC to prevent the abuse of the process of any Court and to secure the ends of justice. 17. With the above observations this petition is allowed. All the pending application(s) if any are disposed of. SUBRAMONIUM PRASAD J. JANUARY 24 2022 W.P.502 2021

Only where the findings are extremely perverse, a Court may interfere with the decision of subordinate Court under Article 227 of Indian Constitution: High Court of Delhi

In exercise of jurisdiction under Article 227 of the Constitution of India, the scope of interference in proceeding is extremely narrow. This Court is not sitting in appeal while exercising jurisdiction under Article 227 and therefore, cannot re-appreciate the evidence led on behalf of the parties. It is only where the findings are extremely perverse that a Court may interfere with the decision of the subordinate Court under Article 227 jurisdiction. These were stated by High Court of Delhi, consisting Justice Amit Bansal in the case of Rajinder Kumar vs. Raj Kumar & Ors. [CM(M) 458/2020] on 11.01.2022. The facts of the case are that the eviction proceedings were initiated on behalf of the respondent (landlord) in respect of shop situated in Raghubir Nagar, Delhi, let out to the petitioner’s father on a monthly rent of Rs.625. The premises was let out in the year 1979 without any document. Eviction petition was filed by the landlord on 19th August, 2004, under Section 14(1)(a), (b) and (j) of the DRC Act. The said eviction petition was contested by the petitioner saying that his father had never sub-let the said premises to him and the petitioner was himself an independent tenant in the said premises. The eviction petition was allowed under Sections 14(1)(a) and 14(1)(b) of the DRC Act by the ARC, while it was dismissed u/s 14(1)(j) of the DRC Act. Accordingly, an eviction order was passed u/s 14(1)(b) in favour of the landlord and against the petitioner and his father. Insofar as the relief under Section 14(1)(a) of the DRC Act was concerned, an order was passed under Section 15(1) of the DRC Act directing the respondent and his father to pay arrears of rent. Upon the payment of arrears by the petitioner, the benefit under Section 14(2) of the DRC Act was given to the petitioner. The present petition under Article 227 of the Constitution of India impugns the judgment passed by the Rent Control Tribunal (RCT). The Counsel for the petitioner submitted that the finding of the ARC in the order that the petitioner’s father did not contest the case or file any specific objections to the eviction petition filed by the landlord is wrong. It was contended that no document was brought on record by the landlord to show that the shop in question was let out to the petitioner’s father. It was further submitted that the landlord was throughout aware that the shop in question was in occupation of the petitioner. Therefore, it is clear from the various rent receipts issued by the landlord as well as the telephone records that the petitioner was in occupation of the premises. Accordingly, after the demise of petitioner’s father, the petitioner inherited the tenancy in question so there cannot be any sub-letting. The Counsel for the respondent submitted that the petitioner was not a major in the year 1983 when he has claimed to be inducted as a tenant. Therefore, no valid contract of tenancy could have been created in his favour. It was therefore, contended that inconsistent stands have been taken by the petitioner in proceedings so as to continue to be in occupation of the premises.

IN THE HIGH COURT OF DELHI AT NEW DELHI CM(M) 458 2020 Date of decision: 11th January 2022. RAJINDER KUMAR Petitioners Through: Mr. Deepak Vashisht Advocate RAJ KUMAR & ORS. Through: Mr. Hare Ram Jha Advocate for Respondents respondent No.1 Mr. Yogesh Saxena Advocate for respondents No.2 to 4 HON BLE MR. JUSTICE AMIT BANSAL VIA VIDEO CONFERENCING] AMIT BANSAL J.The present petition under Article 227 of the Constitution of India impugns the judgment dated 01st June 2020 passed by the Rent Control Tribunalin RCT No. 9 2016 whereby the appeal filed on behalf of the petitioner tenant under Section 38 of the Delhi Rent Control Act 1958 DRC Act) against the order dated 20th September 2012 passed by the Additional Rent Controllerallowing the eviction proceedings against the petitioner tenant has been dismissed. Brief facts necessary to the extent relevant for deciding the present petition are set out below: CM(M) 458 2020 2.1 Eviction proceedings were initiated on behalf of the respondent No.1 landlord in respect of shop measuring 12’ X 7’ feet situated in property bearing No. B 347 Raghubir Nagar Delhi 110027 let out to the father of the petitioner on a monthly rent of Rs.625 per month later enhanced to Rs.687.50 per month. The premises was let out in the year 1979 without any document. 2.2 Eviction petition was filed by the landlord on 19th August 2004 under Section 14(1)(a) andof the DRC Act. 2.3 The said eviction petition was contested by the petitioner along with his deceased father by filing a joint written statement wherein it was inter alia contended that father of the petitioner had never sub let the said premises to the petitioner and the petitioner was himself an independent tenant in the said premises. 2.4 The eviction petition was allowed under Sections 14(1)(a) and 14(1)(b) of the DRC Act by the ARC while it was dismissed Under The same was dismissed under Section 14(1)(j) of the DRC Act. Accordingly an eviction order was passed under Section 14(1)(b) in favour of the landlord and against the petitioner and his father. Insofar as the relief under Section 14(1)(a) of the DRC Act was concerned an order was passed under Section 15(1) of the DRC Act directing the respondent and his father to pay arrears of rent. Upon the payment of arrears by the petitioner the benefit under Section 14(2) of the DRC Act was given to the petitioner. 2.5 An appeal was filed by the petitioner on 30th October 2012 against the aforesaid judgment and the said appeal has been dismissed by the RCT vide impugned judgment dated 01st June 2020. CM(M) 458 2020 Counsel for the petitioner has submitted that: Finding of the ARC in para 9 of the order dated 20th September 2012 that the petitioner’s father did not contest the case or file any specific objections to the eviction petition filed by the landlord is wrong. ii) No document has been brought on record by the landlord to show that the shop in question was let out to the petitioner’s father. iii) The landlord was throughout aware that the shop in question was in occupation of the petitioner. It is clear from the various rent receipts issued by the landlord as well as the telephone records that the petitioner was in occupation of the v) After the demise of the father of the petitioner the petitioner inherited the tenancy in question so there cannot be any sub letting. On the other hand counsel appearing on behalf of the respondent no. 1 landlord submits that: Petitioner was not a major in the year 1983 when he claims he was inducted as a tenant. Therefore no valid contract of tenancy could have been created in his favour. Inconsistent stands have been taken by the petitioner in different proceedings so as to continue to be in occupation of the premises. I have heard the counsels for the parties and perused the orders passed by the ARC as well as the Rent Control Tribunal. It is a settled position of law that in exercise of jurisdiction under Article 227 of the Constitution of India the scope of interference in proceedings under Delhi Rent Control Act where there are two concurrent findings of the authorities below is extremely narrow. This Court is not sitting in appeal while exercising CM(M) 458 2020 jurisdiction under Article 227 and therefore cannot re appreciate the evidence led on behalf of the parties. It is only where the findings are extremely perverse that this Court may interfere with the decision of the subordinate Court under Article 227 jurisdiction. Reference in this regard may be made to the judgments of this Court in Nawal Kishore Vs. Mohd. Yukub 2017 SCC OnLine Del 12778 and Dev Raj Vs. Saroj Singhal 2021 SCC OnLine Del 5492. Both the courts below have passed a detailed and well reasoned order analysing the evidence led on behalf of the parties and allowed the eviction petition. On the aspect of Section 14(1)(b) the ARC has held that even though upon the death of the petitioner’s father the petitioner inherited his right in the tenanted premises but the tenancy has to be seen from the date when the eviction petition was filed and at that point of time the petitioner’s father was alive. It was further observed that since the father of the petitioner had gone abroad in 1981 he had left the possession of the tenanted premises in favour of the petitioner. Accordingly the petition under Section 14(1)(b) of the DRC Act was allowed. The aforesaid finding of the ARC has been affirmed in the impugned order dated 1st June 2020 passed by the RCT. In this regard reference may be made to paras 18 and 19 of the impugned order dated 1st June 2020 which are set out below: “18. Further petitioner landlord Raj Kumar that his father Late Sh. Chandu Lal who had let out the premises i.e. the shop as shown in the site plan Ex. PW 1 1 to respondent no.1 deceased Vijay Kumar in the year 1979. As a matter of fact there is no challenge to the testimony of petitioner landlord that the premises was let out at the monthly rent of CM(M) 458 2020 Rs. 625 . The case of the respondent no.2 that the tenancy premises was let out to him in the year 1983 is not palatable since it has come in evidence that his date of birth was 16.08.1968 and in the year 1979 as also 1983 he was minor being below 18 years of age and therefore the Ld. ARC has rightly observed that the tenancy could not have been created in favour of a minor as respondent no.2 appellant was not competent to enter into a contract. Moreover it has also come in evidence that father of respondent no.2 appellant had gone abroad as per the passport shown during the trial on 07.06.1981 probably after handing over the exclusive possession of the tenancy premises in favour of his son respondent 458 2020 that warrants interference by this Court in exercise of its jurisdiction under Article 227 of the Constitution of India. AMIT BANSAL J. JANUARY 11 2022 CM(M) 458 2020

If the owner of the vehicle is found liable under Section 140, naturally, the liability of the insurer also would arise: Jammu and Kashmir High Court

Reading of Section 140 makes it clear that no fault liability is cast on the owner of the vehicle and not directly on the insurer. This was held in the judgment passed by a single judge bench comprising of HON’BLE MRS. JUSTICE SINDHU SHARMA in the matter of National Insurance Company Ltd V. Feroz-ud-Din & anr [IA No. 01/2018], dealt with an issue where the petitioner filed a petition challenging the award passed by the Motor Accident Claims Tribunal, Doda in the four appeals. Claimants are grandparents of the deceased whose son was driving the said vehicle on the fateful day and they have filed four claim petitions against DM, National Insurance Company Limited & others for compensation under Sections 166 and 140 of the Motor Vehicle Act, 1998. Appellant-Insurance Company objected to the claim petitions on the ground that the claim petitions are not maintainable because insurer can only indemnify the insured, who died and in the absence of his legal heirs arrayed as party.  Learned Tribunal, while considering the application under Section 140 of the MV Act, found that as the offending vehicle was duly insured with the appellant company, as such, the respondent/insurer is under legal obligation to indemnify the owner and the Tribunal has awarded interim award of Rs. 50,000/- in each claim petitions in favour of the respondents-claimants. It is argued that the appellant cannot be made liable to pay compensation under no fault liability in the absence of the insured because the Insurance Policy, contract is to indemnify the insured against the third party liability. Counsel for the appellant while elaborating on the contention, relying on the judgment of Supreme Court in Oriental Insurance Company Ltd. Vs. Sunita Rathi, 1998. The appeals filed by the Insurance Company involve only a short point relating to its liability under the policy of insurance issued subsequent to the accident, even though it was issued some time later on the same day. In the judgement they relied the High Court stated that, without assigning any reason, has simply assumed that the owner of the vehicle was not liable and that the insurer alone was liable in the present case. This conclusion, reached by the High Court, is clearly erroneous. The liability of the insurer arises only when the liability of the insured has been upheld for the purpose of indemnifying the insured under the contract of insurance. There is, thus, a basic fallacy in the conclusion reached by the High Court on this point. After hearing both sides, the Hon’ble High Court of Jammu and Kashmir dismissed the petition and held that Appellant-company is directed to deposit the amount of award passed in all the claim petitions within a period of one month from today, failing which, same will be payable with 12% interest per annum. Click here to view judgement Judgement reviewed by – Vaishnavi Raman

IA No HIGH COURT OF JAMMU AND KASHMIR AT JAMMU MA No. 254 2018 IA No. 01 2018 MA No. 252 2018 IA No. 01 2018 MA No. 253 2018 IA No. 01 2018 MA No. 255 2018 IA No. 01 2018 Pronounced on : 12 .06.2020 …. Appellant(s) National Insurance Company Ltd. V s Feroz ud Din & anr. Through: Mr. Sanjay K. Dhar Advocate …..Respondent(s) Through: Mr. M. P. Gupta Advocate Coram : HON’BLE MRS. JUSTICE SINDHU SHARMA JUDGE Appellant Company has challenged the award dated 04.10.2018 passed by the Motor Accident Claims Tribunal Doda in these four appeals. Since these appeals involve common questions of fact and law therefore the same were heard together and are being decided by a common judgment. Briefly stated facts which arises for the consideration in these appeals are that on 16.10.2017 about 10.15 a.m an accident occurred Near Kashor Jodhpur within the jurisdiction of Police Station Doda which resulted in the death of Nelofar Raza D o Late Sh. Bashir Ahmed Zia Bashir S o Late Sh. Bashir Ahmed Fehmida Begum W o Late Sh. Bashir Ahmed and Shaiqa Bano D o Late Sh. Bashir Ahmed. Bashir Ahmed being the owner of the vehicle No. JMU CC 2715 was driving the said MA Nos. 254 252 253 & vehicle at the time of accident and his wife & daughter were the occupants who died in the accident alongwith him. Claimants are grandparents of the deceased whose son was driving the said vehicle on the fateful day and they have filed four claim petitions against DM National Insurance Company Limited & others for compensation under Sections 166 and 140 of the Motor Vehicle Act 1998. Appellant Insurance Company objected to the claim petitions on the ground that the claim petitions are not maintainable because insurer can only indemnify the insured who died and in the absence of his legal heirs arrayed as party. Learned Tribunal while considering the application under Section 140 of the MV Act found that as the offending vehicle was duly insured with the appellant company as such the respondent insurer is under legal obligation to indemnify the owner and the Tribunal has awarded interim award of Rs. 50 000 in each claim petitions in favour of the respondents claimants. Appellant is aggrieved of the award dated 04.10.2018 and has assailed it on the ground that since insured has not been impleaded as party in the claim petitions therefore insurer would not be liable to pay compensation as the liability of the insurer is to indemnify the insured but this is a case where the insurer is dead. The question which therefore arises is whether the appellant can be held liable to indemnify the insured when he is dead and his legal heirs are the claimants. Since the insured being the driver at the time of accident is dead the claimants are his legal heirs. It is argued that the appellant cannot be made liable to pay compensation under no fault liability in the absence of the insured because MA Nos. 254 252 253 & under the Insurance Policy contract is to indemnify the insured against the third party liability. Learned counsel for the appellant while elaborating on the contention relying on the judgment of Supreme Court in Oriental Insurance Company Ltd. Vs. Sunita Rathi 1998 AIR257 however the but only question to be decided in these cases was ‘as stated by the lordship in Para 1 of the aforesaid judgment which is reproduced as follows: “1. This appeal by the insurer involves for decision only a short point relating to its liability under the policy of insurance issued subsequent to the accident even though it was issued sometime later on the same day. The Tribunal as well as the High Court have held against the insurer placing reliance on a two Judge Bench decision of this Court in New India Assurance Co. Ltd. Vs. Ram Dayal & Ors. 1990SCR 570. The question is whether that decision has been correctly applied in the facts of the present case.” The appeals filed by the Insurance Company involve only a short point relating to its liability under the policy of insurance issued subsequent to the accident even though it was issued some time later on the same day. After referring to the facts of the case their lordship held in Para 3 of Sunita Rathi’s casethat “insurer cannot be held liable on the basis of above policy in the present case and therefore the liability has to be of the owner of the vehicle ....”. By referring to the judgment of the High Court in Para 3 it was observed as under: “It follows that the insurer cannot be held liable on the basis of the above policy in the present case and therefore the liability has to be of the owner of the vehicle. However we find that the MA Nos. 254 252 253 & High Court without assigning any reason has simply assumed that the owner of the vehicle was not liable and that the insurer alone was liable in the present case. This conclusion reached by the High Court is clearly erroneous. The liability of the insurer arises only when the liability of the insured has been upheld for the purpose of indemnifying the insured under the contract of insurance. There is thus a basic fallacy in the conclusion reached by the High Court on this point.” However the question involved was referred in Para 1 of the judgment which has been decided finally. It appears that the judgment was against the final award and not against the order passed under Section 140 of the Motor Vehicles Act. Conclusive para of the said judgment reads as under: “For the aforesaid reasons the appeal is allowed. The judgment of the High Court and Tribunal are set aside. However as indicated earlier the claimants are not required to refund the amount already paid to them by the insurer.” Reliance has also been placed on the judgment of High Court of Kerala in National Insurance Company Ltd. vs. Sasilatha 2000(1) ACJ 661 holding that “a reading of Section 140 would make it clear that no fault liability is cast on the owner of the vehicle and not directly on the insurer. If the owner of the vehicle is found liable under Section 140 naturally the liability of the insurer also would arise”. Appellant has also referred the judgment of this Court in Oriental Insurance Company Limited vs. Sangeeta & ors. 1992 Kash.L.J. 661 but it was a case in which the final award was challenged. In Para 9 of the said judgment it was held that “I therefore hold that claimant’s failure to implead the insured as respondent and to obtain a MA Nos. 254 252 253 & judgment against him has disentitled her to be indemnified by the appellant company”. This was also the case of Sunita RathiKLT 343 has held as under: “4. Under Section 140 of the Act to pay compensation is absolute when the death or permanent disablement of any person is arising out of the use of a motor vehicle. Irrespective of the negligence there is no necessity for the claimant to plead or establish that the death or permanent disablement was due to the wrongful act or negligent act of the owner of the vehicle. No fault liability under Section 140 is created by the Statute is outside the law of tort and there is no necessity to enter into an enquiry that who was the wrong doer. This is a substantive right accrued and the liability is incurred on the date of the accident and not on the date of consideration of the claim. So the accidental death of the driver of the jeep occurred during the use of the vehicle by the owner and in turn insurance company to pay compensation under Section 140. Therefore the Tribunal was right in awarding compensation under Section 140 and direction to pay the above with interest by the insurance company. Direction to pay interest is also fully justified as amount due under Section 140 was not made in time and there is erosion of money value due to passage of time.” The Supreme Court in Para 6 of the judgment in Indra Devi & ors. Vs. Bagada Ram & anr. 2010 AIR2913 in which reference has been made to the judgment in Eshwarappa @ Maheshwarappa and Anr. vs. C. S. Gurushanthappa and Anr. 2010R.A.J. 31 has observed as under: MA Nos. 254 252 253 & “6. We have examined the nature of the `no fault compensation payable under section 140 of the Act Eshwarappa @ Maheshwarappa and Anr. vs. C.S. Gurushanthappa and Anr. 2010R.A.J. 31the judgment in which is pronounced today. We therefore do not wish to elaborate the point further. Suffice to say that in view of our judgment in Civil Appeal No.7049 of 2002 the Tribunal was patently in error in directing for the refund of the amount of `no fault compensation already paid to the claimants to the insurance company. The High Court was equally in error in missing out this grave mistake in the judgment and order passed by the Tribunal and not setting it In view of the above it is not necessary to refer to the cleavage of judicial opinion in the matter as the law regarding no fault liability has been settled by their lordships of Supreme Court and it is not necessary to implead the insured who is dead where the claimants are his legal heirs and entitled to compensation under Section 140 of the Motor Vehicle Act irrespective of the fact that whether the deceased was at fault as long as the Insurance Company is not disputing. Hence the appeals are dismissed being without any merit. Appellant company is directed to deposit the amount of award passed in all the claim petitions within a period of one month from today failing which same will be payable with 12% interest per annum. 12 .06.2020 Ram Murti Sindhu Sharma) Whether the order is speaking Whether the order is reportable

If the petitioner is considered for promotion to the next higher post of, the promotion cannot be given with retrospective effect: High Court of Meghalaya

The writ Court, which exercises its high prerogative jurisdiction under Article 226 of the Constitution of India is not so readily equipped for the purpose of quantification of damages which is required to be awarded in favour of the respondent/writ petitioner on account of wrongdoing, if any, on the part of the concerned authority as held by the Hon’ble High Court of Meghalaya through a learned bench of Hon’ble Mr. Justice Biswanath Somadder, Chief Justice, and  Hon’ble Mr. Justice W. Diengdoh, Judge in the case of The Union of India & Ors Vs Kumar Keshab Kalita. [WA No. 58 of 2017] Brief facts of the case are that, he respondent/writ petitioner was enrolled as Rifleman General Duty and thereafter, remustered to the post of Havildar Store Keeper Technical. The next promotional post of Havildar Store Keeper Technical is Naib Subedar SKT. It is an admitted case of the parties that as per the Assam Rifles Recruitment Amendment Rules, 2009, a new recruitment process has been implemented for promotion from the post of Havildar Store Keeper Technical to Naib Subedar SKT. It is the case of the respondent/writ petitioner that he was denied the opportunity of undergoing Technical Trade Test II while his juniors had been deputed for undergoing Technical Trade Test I and as a result, further promotion to the post of Naib Subedar SKT was denied to him. The respondent/writ petitioner had filed many representations to the concerned authority for sending him to undergo Technical Trade Test II and I. In support of this fact, the respondent/writ petitioner also annexed the copies of the representations. It is a fact that at the time of holding the DPC on 15th July, 2009, the respondent/writ petitioner was not eligible for promotion to the post of Naib Subedar SKT. The learned Single Judge in the impugned judgment and order at the very outset observed, inter alia, to the effect that the Court had full sympathy for the respondent/writ petitioner in the given case but because of hard fact that he was not eligible at the time of consideration for promotion to the post of Naib Subedar SKT (Engineer), by the duly constituted DPC held on 15th July, 2009, the relief sought for in the writ petition could not be granted in full. The Hon’ble court, after a perusal of the facts on record, was of the view that “If the respondent/writ petitioner is considered for promotion to the next higher post of Naib Subedar SKT (Engineer), his promotion cannot be given to him with retrospective effect. The wrongdoing, if any, on the part of the concerned authority cannot be compensated in such a manner. At first, it has to be translated into damages and is thereafter required to be quantified by a competent Civil Court. The writ Court, which exercises its high prerogative jurisdiction under Article 226 of the Constitution of India is not so readily equipped for the purpose of quantification of damages which is required to be awarded in favour of the respondent/writ petitioner on account of wrongdoing, if any, on the part of the concerned authority.”

Serial No. 03 Regular List WA No. 517 HIGH COURT OF MEGHALAYA AT SHILLONG Date of order: 01.10.2021 Kumar Keshab Kalita The Union of India & Ors. Hon’ble Mr. Justice Biswanath Somadder Chief Justice Hon’ble Mr. Justice W. Diengdoh Judge For the Petitioner Appellant(s) : Mr. R. Debnath CGC For the Respondent(s) Mr. Philemon Nongbri Adv. Whether approved for reporting in Law journals etc.: Whether approved for publication in press: JUDGMENT:(Oral) This appeal arises in respect of a judgment and order passed by a learned Single Judge on 20th May 2014 in WP(C) 358 of 2010 and thereafter remustered to the post of Havildar Store Keeper Technicalin the month of August 1997. The next promotional post of Havildar Store Keeper Technical is Naib Subedar SKT to Naib Subedar SKTis a cent per cent promotional post and the Havildar Store Keeper Technical having minimum service of 5 years as Havildar Store Keeper Technical Engineer) together with a total of 18years of service and passed Map Reading Standard II and Technical Trade Test I is eligible for promotion. It is stated that the respondent writ petitioner had successfully completed Map Reading Standard II and also successfully completed the Technical Trade Test II. It is further case of the respondent writ petitioner that inspite of successfully completed the Technical Trade Test III as early as 2003 he was not sent for undergoing Technical Trade Test II. It may be pertinent to mention that for undergoing Technical Trade Test I the concerned Havildar Store Keeper Technicalshould have successfully completed firstly the Technical Trade Test III and secondly Technical Trade Test II. The respondent writ petitioner had successfully completed the Technical Trade Test II on 22nd March 2010 and also completed the Technical Trade Test I on 22nd June It is the further case of the respondent writ petitioner that he was denied the opportunity of undergoing Technical Trade Test II while his juniors had been deputed for undergoing Technical Trade Test I and as a result further promotion to the post of Naib Subedar SKT Engineer) was denied to him. The respondent writ petitioner had filed many representations to the concerned authority for sending him to undergo Technical Trade Test II and I. In support of this fact the respondent writ petitioner also annexed the copies of representations. It is a fact that at the time of holding the DPC on 15th July 2009 the respondent writ petitioner was not eligible for promotion to the post of Naib Subedar SKTas spelt out in the impugned judgment and order reads thus “5. The respondents filed joint affidavit in opposition wherein had clearly stated that the petitioner was not eligible for promotion to the pot of Naib Subedar SKTat the time of holding the DPC on 15.07.2009. The respondents in their affidavit in opposition further stated that the petitioner will be promoted to the next higher rank of Naib Subedar SKT in his turns subject to availability of vacancy. This Court vide order dated 18.03.2014 directed the respondents to file additional affidavit mentioning the particulars of the vacancies in the post of Naib Subedar SKT Engineer) arising after the last DPC i.e. 15.07.2009. 6. The respondents filed joint additional affidavit dated 01.05.2014 wherein it is stated “that the writ petitioner had acquired the Qualitative Requirementfor promotion in March 2010 but could not be promoted to the rank of Naib Subedar Store Keeper Technicaldue to the non availability of vacancy in the said rank. That from September 2011 till date 02vacancies had occurred 01in the unreserved category and 01in the reserved category meant for Scheduled Tribecandidates and 02 two) Hav SKT viz Hav SKT Mathai PC from the unreserved category and Hav SKT L Seimang from Scheduled Tribecategory had been promoted with effect from 01 September 2011 and 01 November 2011 respectively.” It appears from the additional affidavit filed by the respondents that there was only one vacancy in the post of Naib Subedar SKTin the unreserved category and against that unreserved category one Shri. Mathai PC i.e. Havildar Store Keeper Technical had already been promoted”. The learned Single Judge in the impugned judgment and order at the very outset observed inter alia to the effect that the Court had full sympathy for the respondent writ petitioner in the given case but because of hard fact that he was not eligible at the time of consideration for promotion to the post of Naib Subedar SKTby the duly constituted DPC held on 15th July 2009 the relief sought for in the writ petition could not be granted in The operative portion of the impugned judgment and order reads as follows: “7. It is very clear from the inter se seniority lists of the Havildars Store Keeper Technical the said Shri. Mathai PC Havildar Store Keeper Technical is senior to the petitioner inasmuch as his seniority position is at Srl.No.11 while the seniority position of the petitioner is at Srl.No.17. In the additional affidavit filed by the respondents it is also stated that for the one vacancy in the post of Naib Subedar SKTarisen after the last DPC i.e. 15.07.2009 the petitioner is not in the zone of consideration. It is very clear in the given case that the petitioner had been denied for consideration to the next higher post of Naib Subedar SKTbecause of the failure on the part of the respondents to send him to undergo the training for Technical Trade Test I. But at the same time the Court cannot direct the respondents to promote the ineligible persons to the next higher post. In the given case this writ petition is disposed of by directing the respondents to consider the case of the petitioner definitely for promotion to the next higher post of Naib Subedar SKTas soon as vacancy arises in the post of Naib Subedar SKThis promotion should be w.e.f. Shri. Mathai PC Havildar Store Keeper Technicalwas promoted to the post of Naib Subedar SKThis promotion cannot be given to him with retrospective effect. The wrongdoing if any on the part of the concerned authority cannot be compensated in such a manner. At first it has to be translated into damages and is thereafter required to be quantified by a competent Civil Court. The writ Court which exercises its high prerogative jurisdiction under Article 226 of the Constitution of India is not so readily equipped for the purpose of quantification of damages which is required to be awarded in favour of the respondent writ petitioner on account of wrongdoing if any on the part of the concerned authority. We therefore modify the impugned judgment and order only to the extent that in the event the respondent writ petitioner is promoted to the next higher post of Naib Subedar SKT he will be at liberty to approach a competent Civil Court claiming damages against the concerned authority for its wrongdoing if any the fate of which shall be decided strictly in accordance with law and not based on any observation made herein. We further observe that in the event the respondent writ petitioner has entered the zone of consideration for the next higher post of Naib Subedar SKT the concerned authority shall take a decision thereon without any further delay taking into consideration the fact that he has a judgment and order passed partly in his favour way back in May 2014 i.e. more than seven years ago. The writ appeal stands disposed of accordingly. W. Diengdoh) Biswanath Somadder) Chief Justice “Sylvana PS”

No presumption under Section 20 of Prevention of Corruption Act can be drawn in absence of essential ingredient of demand of bribe: Jharkhand High Court

This court has no hesitation in holding that the evidence in the record is insufficient to establish the essential ingredient of demand of illegal gratification by the appellant-convict, for constituting the offences punishable under section 7 or for that matter section 13 (2) read with section 13 (1) (d) of the Prevention of Corruption Act, 1988: This was said in the case of Bishnu Deo Ram vs The State Of Jharkhand Through CBI [Cr. Appeal (SJ) No.657 of 2011] by Justice Anil Kumar Choudhary in the High Court of Jharkhand.  The present appeal has been preferred against the Judgment of Conviction and Order of Sentence dated 05.12.2011 passed by the Special Judge whereby the learned court has held appellant-convict guilty of the offences punishable under Section 7 and Sections 13 (2) read with Section 13 (1) (d) of Prevention of Corruption Act, 1988 The learned counsel for the appellant submitted there is absolutely no evidence regarding the demand of illegal gratification. It is then submitted that evidence of mere recovery of tainted money with the post trap formalities is by itself not sufficient to constitute the offence punishable under Section 7 19 of the Prevention of Corruption Act, 1988 or for that matter Section 13 (2) of the Prevention of Corruption Act, 1988 read with Section 13 (1) (d) (i) and (ii) of the said Act, so the appellant-convict be acquitted of the charges by at least giving him the benefit of doubt. The learned counsel for the CBI submitted that as the P.W.4, PW6 and PW11 have categorically deposed about the ingredients of the offences for which the appellant-convict has been convicted and their testimonies have been corroborated by the testimonies of the other witnesses of the prosecution, thus the evidence in the record are sufficient enough to establish the charges for the offences punishable under Section 7 and Sections 13 (2) read with Section 13 (1) (d) of the Prevention of Corruption Act, 1988. After hearing the submissions made at the Bar and after going through the evidence in the record, it was said that “The PW 4, PW 6 and PW 11 have categorically stated that initially the appellant-convict refused to 20 receive the money offered by the PW 6 and only upon insistence of the PW 6 he received the money. Further, as already indicated above the prosecution witnesses themselves have stated that when the appellant were challenged by the personnel of CBI regarding accepting of the bribe from the PW6, the appellant-convict since the beginning pleaded that he did not demand the bribe. The verification officer being the PW 12 never went to the appellant-convict during the verification of the complaint submitted by the PW6 hence he had no occasion either to hear from the appellant-convict as to whether he ever demanded any bribe from the PW6”.

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. AppealNo.6511 Bishnu Deo Ram S o late Sukhdeve Ram R O Ward No. 3 Arariya R.S.3 P.O.+ P.S. Arariya District Arariya Bihar … Appellant Versus The State of Jharkhand through C.B.I. … Respondent For the Appellant For the C.B.I. Mr. Prashant Pallav Advocate Mr. Rohit Sinha Advocate HON BLE MR. JUSTICE ANIL KUMAR CHOUDHARY C.A.V. ON 24.02.2021 PRONOUNCED ON 11.05.2021 Anil Kumar Choudhary J. Heard the parties through video conferencing. 2. This appeal has been preferred against the Judgment of Conviction and Order of Sentence dated 05.12.2011 passed by the Special Judge C.B.I. Dhanbad in R.C. Case No.24 04 R whereby and where under the learned court below has held appellant convict guilty of the offences punishable under Section 7 and Sections 13read with Section 13(d) of Prevention of Corruption Act 1988 and sentenced him to undergo Simple Imprisonment for one and half years for the offence punishable under Section 13read with Section 13(d) of Prevention of Corruption Act 1988 and further sentenced to Simple Imprisonment of one year for the offence punishable under Section 7 of Prevention of Corruption Act 1988 and to pay a fine of Rs.1 000 each for each of the offences i.e. in total Rs.2000 in default of payment of fine to undergo Simple Imprisonment for a period of 15 days for each offences and all the sentences were directed to run concurrently. 3. The case of the prosecution in brief is that the complainant Sohan Prasad Gupta was working as an E.D.M.C. in Raj Chainpur Sub Post Office Palamau. The appellant convict was working as Sub Divisional Inspector of Post Offices East Subdivision Daltonganj. It is alleged that the appellant convict used to demand illegal gratification of ₹ 2000 for sending a favourable report to the Superintendent of the Post Offices on the application of the complainant to post the complainant in the vacant post of Postman in I.E. Sudna Branch Post Office. On 25.10.2004 when the complainant approached the appellant convict the appellant convict told the complainant that the complainant has to pay ₹ 700 as the 1st installment of the bribe amount of ₹ 2000 and then only the appellant convict would send the favourable report to the Superintendent of Post Offices. As the complainant did not want to give money he lodged a complaint with the S.P. C.B.I. Ranchi. The inspector of C.B.I. Ranchi Sri S. K. Sinha verified the facts of the complaint and submitted his report confirming the demand of illegal gratification by the appellant convict as alleged in the written complaint submitted by the complainant. On the basis of the report submitted by Sri S. K. Sinha this case has been registered. Investigation of the case was entrusted to him. A trap was successfully conducted on 29.10.2004. The appellant convict was caught red handed while accepting the bribe amount of Rs.700 . After completion of investigation charge sheet for the offences punishable under Section 7 as well as 13 r w 13(1)(d) of the Prevention of Corruption Act 1988 was submitted against the appellant convict. Separate charges for the offences punishable under Section 7 and 13 r w 13(1)(d) of the Prevention of Corruption Act 1988 were framed against the appellant convict to which he pleaded not guilty and thus was put to trial. 4. In support of its case the prosecution altogether examined 12 witnesses while 2 witnesses were examined on behalf of the defence. Out of the witnesses examined by the prosecution P.W.6 is the complainant himself. He has stated about the contents of his complaint submitted to the S.P. CBI. He also stated in detail about the pre trap preparations. He further deposed that they reached the residence of the appellant convict at 12:30 PM. It is pertinent to mention here that the PW 6 did not mention the date on which they went for the trap. The PW 6 further deposed that upon knocking of the door the appellant convict came out and enquired as to what the matter was. The P.W.6 wished the appellant convict and told that he has brought the money demanded by the appellant convict and offered the appellant convict to take the said money. The appellant was hesitant to receive the money on seeing P.W.4. The P.W.6 again told that he has brought ₹ 700 and asked the appellant convict to take the same and also told that he will pay the remaining amount soon. At which the appellant convict received the money with his right hand and counted the money using both his hands. He kept the money in the left of pocket of his shirt. The PW6 gave the signal upon which the entire team of CBI reached there. The CBI officers caught hold of the hands of the appellant convict. Upon the fingers of both hands of the appellant convict being dipped in the white solution the colour of the solution turned pink. Thereafter the PW5 brought out ₹ 700 from the pocket of the appellant convict. The numbers of the notes were tallied. The left pocket of the shirt of the appellant convict upon being dipped in the solution the colour of the solution turned pink. PW6 identified his signatures on various documents and exhibits. In his cross examination the PW 5 has stated that he has been working as E.D.M.C. since 28.09.1985. There is no change of place for them. He is working at Chainpur. He submitted the application to the Postal Superintendent 2 3 months before. The Postal Superintendent marked the application of complainant to the appellant convict. He submitted a 2nd application to the Postal Superintendent on 25.10.2004. The appellant convict did not make any demand before 25.10.2004. PW 4 Manish Kumar is an independent witness. He has deposed that on 29.10.2004 he and the PW5 had gone to the CBI office. He has stated in detail about the pre trap preparations. They reached the house of appellant convict at 12.15 p.m. The PW4 accompanied the PW 6 to the house of the appellant convict and knocked his door. As the appellant convict came out from his house the PW 6 told the appellant convict that he has brought ₹ 700 as told by the appellant convict. The appellant convict looked at the PW 4 and told the PW 6 to keep the money as there was no requirement of the same at that time. At this the PW 6 told the appellant convict that he could arrange ₹ 700 only at that time and offered the appellant convict to keep the said money and to do his job quickly and also promised to pay the remaining amount quickly. Upon that the appellant convict received the money by his right hand and counted the money using both his hands and kept the money in the left upper pocket of his shirt. The PW6 gave the predetermined signal by scratching his hair and all the members of CBI came there. 2 of them held of the wrists of the hands of the appellant convict. The other independent witness PW5 brought out the money from the pocket of the appellant convict. Thereafter milky white solution of sodium carbonate was prepared in a glass tumbler and upon the fingers of the appellant convict being dipped in the said solution the colour of the solution turned pink. Upon search being made by the PW5 from the upper pocket of the appellant convict ₹ 700 was recovered. The PW4 and 5 tallied the said notes with the numbers of notes mentioned in the pre trap memorandum and the recovered notes were the same notes the description of which was made in the pre trap memorandum. The notes were seized and sealed. In the court he identified the recovered notes upon the sealed packet being opened. The pocket of the shirt of the appellant convict was also dipped in the sodium carbonate solution and the milky white colour of the solution turned pink. The PW 4 also identified the various objects seized during the trap and the post trap formalities and also identified his signatures upon the same as well as the other documents. In his cross examination the PW4 has stated that both he and the PW 5 were working in CCL. The appellant convict was telling that there was no need of the money at that time on seeing the PW4 being a stranger. The PW 6 told the appellant convict that he has arranged ₹ 700 only and offered the appellant convict to keep the same. Upon the complainant insisting in presence of PW 4 the appellant convict received the PW5 Prabhash Kumar Rai is the other independent witnesses who recovered the bribe money from the pocket of the appellant convict. He has deposed in detail about the pre trap preparations. They reached near the house of the appellant convict at about 12 noon. The PW 6 and PW 4 proceeded towards the house of the appellant convict. They were followed by PW 11 a personnel of CBI. The PW 5 and others were standing on the road in front of the house of the appellant convict. The PW 6 gave the predetermined signal. After receiving the signal everybody rushed towards the house of the appellant convict. After entering inside PW 11 and another personnel of CBI caught hold of the wrists of the hands of the appellant convict. Upon the fingers of both hands of the appellant convict being dipped in the milky white sodium carbonate solution in separate glass tumblers the colour of the solutions turned pink. On being asked the appellant convict disclosed that the money is in his upper shirt pocket. The PW 5 brought out 7 notes of ₹ 100 denomination each in total ₹ 700 and the same were seized. They compared the number of the notes with the numbers mentioned in the pre trap memorandum and found that they are the same notes. The pocket of the shirt of the appellant convict was also dipped in the sodium carbonate solution and the colour of the solution also turned pink. The PW5 also identified the seized articles as well as his signatures on various documents which were marked exhibits. In his cross examination PW5 has stated that he has not heard the appellant convict demanding the bribe nor he has seen the appellant convict taking the bribe from the PW 6 and he is not a witness in this respect. PW 11 Rajesh Singh Solanki is an officer of CBI and was part of the trap team. He has deposed about the Pre trap preparations and further stated that they reached Daltonganj at 12:15 PM. At about 12:30 PM the PW 6 and PW 5 went to the door of the appellant convict and knocked his door. After that the appellant convict came out and the PW 6 wished him and told him that as instructed by the appellant convict PW6 has brought ₹ 700 and offered the appellant convict to keep the same and also said that the rest amount will be paid by him later on. On seeing a stranger with PW 6 the appellant convict victim became annoyed and told the PW 6 to keep the same as there is no requirement of the same at that time. The complainant again insisted upon which the appellant convict received ₹ 700 by his right hand and counted the same by using both his hands and kept the same in the left upper pocket of his shirt. Thereafter the PW 6 gave the signal. The team reached there. The PW8 challenged the appellant convict of receiving the bribe at which the appellant convict became worried and told that he has not demanded the bribe. The PW 11 caught hold of the left wrist while the PW 9 caught hold of the right wrist of the appellant convict. The PW 11 further stated that upon the fingers of the hands of the appellant convict being dipped in the sodium carbonate solution the colour of the solution turned from milky white to pink. He also stated that the PW 5 brought out ₹ 700 from the pocket of the appellant convict and upon being compared the numbers of the notes tallied with the numbers of the notes mentioned in the pre trap memorandum. The pocket of the shirt of the appellant convict upon being dipped in a separate sodium carbonate solution the colour of the solution also turned from milky white to pink. The PW 11 also identified the different objects as well as his signatures on various documents which were marked exhibits. In his cross examination PW 11 stated that the complaint was verified by Sri S.K. Sinha Inspector. At the time of occurrence he was near the gate. He heard the conversation between the complainant and the appellant convict. He stated before the investigating officer that the conversation and transaction of bribe amount was also clearly over heard and seen by PW 4 PW11 himself and Mukesh Verma. The exchange took place outside the room in the veranda just outside the door. He did not hear or see demand of bribe but the complainant stated that he has brought the money as instructed by the appellant convict. PW8 Kaushal Kishore Singh is the first Investigating Officer of the case. He was also a member of the trap team. He proved the F.I.R as well as other documents which were marked exhibits. After registration of the FIR the investigation of the case was entrusted to the PW8. He further stated about constitution of the trap team. He also stated about the pre trap formalities. At about 12:30 PM PW6 and the PW4 proceeded to the house of the appellant convict to discuss about the amount of bribe. After some time the PW6 gave the predetermined signal and the members of the trap team along with the witnesses went towards the house of the appellant convict. After reaching there PW8 challenged the appellant convict to admit taking bribe from the PW6. The appellant convict became nervous and his body became yellow. The appellant convict said that he did not demand bribe. He further stated that upon the fingers of the appellant convict as well as the pockets of his shirt being dipped in sodium carbonate solution the colour of the solution turned pink. He also identified various objects as well as his signature on the objects and documents which were marked exhibits. He then stated that upon the numbers of the seized notes from the appellant convict being compared with the numbers of the notes mentioned in the pre trap memorandum the numbers tallied. He handed over the investigation of the case to the PW 9. On receiving the signal he came to know that the giving and taking of the bribe has taken place. PW9 Bikas Gupta is also a member of the trap team as well as part investigating officer of the case. He has deposed about the pre trap preparations. The PW6 and PW4 went to the house of the appellant convict and knocked his door. Upon the appellant convict coming out from his house the PW6 intimated him that as instructed by the appellant convict the PW6 has brought ₹ 700 . On seeing the PW4 the appellant convict said that there is no requirement of the same and the PW 6 should keep the said money with him. At this the PW 6 told the appellant convict that now he could arrange only ₹ 700 and requested the appellant convict to do his work and the remaining money will be paid by PW 6 soon. The appellant convict received the money by his right hand and counted the money using both his hands and kept it in the upper pocket of his shirt. Inter alia the PW 9 saw and heard the entire occurrence. After the appellant convict accepted the money the PW 6 gave the predetermined signal. All the members of the trap team and the independent witnesses rushed there. Like other witnesses the PW 9 also stated about the appellant convict becoming nervous upon being challenged by the PW 8 to admit taking bribe and stated that he did not demand bribe and upon the fingers and pocket of the shirt of the appellant convict being dipped in the sodium carbonate solution the colour of the solution turned pink. He also stated about the tainted G.C. notes of ₹ 700 being recovered from the appellant convict by the PW5 and on being compared with the pre trap memorandum they were found to be the same notes. He further stated about the post trap formalities and identified his signatures which are marked exhibits. In his cross examination the PW 9 stated that Sri S.K. Sinha did the verification and he recorded the statement of Sri S.K. Sinha after becoming the Investigating Officer of this case. The occurrence was seen by PW 11 Mukesh Verma and the PW 9. He has himself seen and heard the occurrence about which he deposed in court. The giving and taking place at the main door of the house of the appellant convict. He witnessed the occurrence standing outside the boundary wall. PW 12 Sanjay Kumar Sinha is the verifying officer of the complaint. He had stated that upon interrogation of the PW 6 regarding the complaint submitted by him he recommended for institution of regular case against the appellant convict. He identified his verification report and the same was marked exhibit. In his cross examination he had stated that he did not visit the spot for verification. PW 1 M.P. Chattopadhya proved the sanction order for the prosecution of the appellant convict. These sanction order was typed by the PW1 as per the dictation of the Director Postal PW 2 Sheo Kumar Sah proved the file regarding deployment of PW6 which was seized by the CBI. He further stated that on 25.10.2004 the application of the PW6 regarding his absorption was received. The said application was placed before the Postal Superintendent on 26.10.2004 with the endorsement that the earlier application of the PW6 was sent to the Inspector Daltonganj for the report on 30.7.2004 and the reminder of the same was also given on 12.8.2004 for submitting his report within a week. The reminder letter was received by the appellant convict himself. In his cross examination the PW2 has stated that no reply of the reminder dated 12.8.2004 was received by hand delivery on 9.9.2004. 14. PW3 Raj Nath Dubey has identified the file relating to redeployment of PW6 who was E.D.M.C of Sub Post Office Raj Chainpur of Daltonganj. He proved the relevant documents relating to absorption of the PW6 which were marked Exhibit 3 PW 7 Bimal Chandra Purkil was a Junior Scientific Officer of Central Forensic Science Laboratory Kolkata. He has proved the report regarding the chemical test of the liquid with which the fingers of the hands and pocket of the appellant convict were washed and he has further stated phenolphthalein sodium carbonate and water were detected in the contents of the said bottles. PW 10 Kaushalendra Kumar Sinha is the Director Postal Services who accorded the sanction for prosecution of the appellant convict. After completion of the evidence of the prosecution the statement of the appellant convict was recorded under Section 313 Cr.P.C. In his statement recorded under Section 313 Cr.P.C. the appellant convict denied the evidence put forth by the prosecution against him implicating him with this case. He further stated that he was not empowered to do the work for which the PW6 submitted the application and the PW6 could not have been posted in that post as it was a promotional post. In his defence the appellant convict also examined two witnesses. D.W.1 Nageshwar Prasad has stated appellant convict was present in Pathak Pagar Post Office on 27.10.2004. DW 2 Budhi Oraon had stated that on 28.10.2004 when the CBI personnel caught hold of the appellant convict the DW 2 was present in the residence of the appellant convict. The DW 2 has not seen the appellant convict demanding money from the PW6 or receiving money from him. The CBI personnel drove the DW 2 out from the said house. In his cross examination he had stated that on 29.10.2004 he was in the head office from 10.00 AM to 4.00 PM. He does not know whether on 29.10.2004 the CBI team came or not. He got the information that the appellant convict was arrested by CBI. The learned trial court after considering the evidence in the record held that the evidence put forth by the prosecution is sufficient to establish the fact that the appellant convict demanded bribe and was caught red handed while taking the bribe and the bribe money has been recovered from him. Hence he convicted and sentenced the appellant convict as already indicated above. At the time of hearing it was submitted by Mr. Prashant Pallav the learned counsel appearing for the appellant convict that the impugned judgment of conviction and order of sentence is bad in law and fact and is against the weight of evidence in the record. It is next submitted by the learned counsel for appellant convict that the learned trial court failed to consider the fact that there was no occasion for the appellant convict to demand bribe from the PW6 and as the verifying officer did not go to the appellant convict nor had any occasion to see him prior to the trap and also the fact that most of the witnesses of the prosecution have not mentioned as to on which date the alleged trap took place whereas the DW 2 has categorically stated that the said occurrence took place on 28.10.2004 which is not the case of the prosecution goes to show that the appellant convict has been fabricated in this case with ulterior motive. It is next submitted by the learned counsel for the appellant convict that the learned trial court failed to consider the fact that no question was put to the appellant convict in his statement recorded under section 313 of the Code of Criminal Procedure that the PW6 gave the tainted currency notes of ₹ 700 to the appellant convict on 29.10.2004 rather in question no. 7 of the said statement it was asked from the appellant convict that the said tainted currency notes were given to him by the PW6 on 28.10.2004 whereas charge framed against the appellant convict goes to show that the alleged occurrence of giving the tainted currency notes by the PW6 to the appellant convict took place on 29.10.2004 and the learned trial court ought to have held that there is major discrepancy in the evidence put forth by the prosecution vis à vis the charge framed against the appellant convict hence the case of the prosecution is doubtful and thus ought to have acquitted the appellant convict. It is then submitted that as admitted by the prosecution witnesses themselves the appellant convict did not at the first instance accept the money offered by the PW6 and even went on to say that there is no requirement of the said money offered to him by the PW6 at that time as per the evidence put forth by the prosecution witnesses themselves being the PW6 and PW 4 and the appellant convict accepted the money only upon insistence of the PW 6 to receive the said money and as also deposed by the prosecution witnesses themselves inter alia being the PW 8 PW 9 and PW 11 that immediately after being apprehended when the appellant convict was challenged by the CBI personnel of having received the bribe the appellant convict since the very inception took the stand that he never demanded the bribe makes it crystal clear that the appellant convict did not demand any bribe on the date of the alleged occurrence and in the absence of the essential ingredient of demand of money by the appellant convict to constitute the offence punishable under section 7 of the Prevention of Corruption Act 1988 or for that matter Section 13 2) of the Prevention of Corruption Act 1988 read with Section 13 (d) and of the said Act no offence under the said penal provisions of law could be established by the prosecution hence the learned court below ought to have acquitted the appellant convict. To buttress his submissions that in the absence of any evidence regarding demand of bribe by the accused no conviction will ensue learned counsel for the appellant convict relied upon the judgment of Hon’ble Supreme Court of India in the case of Satvir Singh v. State of Delhi 13 SCC 143 of paragraph 34 of which reads as under: “34. This Court in K.S. Panduranga case6 has held that the demand and acceptance of the amount of illegal gratification by the accused is a condition precedent to constitute an offence the relevant paragraph in this regard from the above said decision is extracted hereunder:“39. Keeping in view that the demand and acceptance of the amount as illegal gratification is a condition precedent for constituting an offence under the Act it is to be noted that there is a statutory presumption under Section 20 of the Act which can be dislodged by the accused by bringing on record some evidence either direct or circumstantial that money was accepted other than for the motive or the reward as stipulated under Section 7 of the Act. When some explanation is offered the court is obliged to consider the explanation under Section 20 of the Act and the consideration of the explanation has to be on the touchstone of preponderance of probability. It is not to be proven beyond all reasonable doubt. In the case at hand we are disposed to think that the explanation offered by the accused does not deserve any acceptance and accordingly we find that the finding recorded on that score by the learned trial Judge and the stamp of approval given to the same by the High Court cannot be faulted.”(emphasis supplied) Mr. Pallav next relied upon the judgment of Hon’ble Supreme Court of India in the case of P. Satyanarayan Murthy Vs. District Inspector reported in 10 SCC 152 wherein in paragraph 23 the Hon’ble Supreme Court has held that the proof of demand of illegal gratification is the gravamen of the offence punishable under Section 7 and 13 (d) and of Prevention of Corruption Act 1988 and in absence thereof the thereof would fail. Paragraphs 24 to 27 of P. Satyanarayan Murthy Vs. District Inspector reads as 24. The sheet anchor of the case of the prosecution is the evidence in the facts and circumstances of the case of PW 1 S. Udaya Bhaskar. The substance of his testimony as has been alluded to hereinabove would disclose qua the aspect of demand that when the complainant did hand over to the appellant the renewal application the latter enquired from the complainant as to whether he had brought the amount which he directed him to bring on the previous day whereupon the complainant took out Rs 500 from the pocket of his shirt and handed over the same to the appellant. Though a very spirited endeavour has been made by the learned counsel for the State to co relate this statement of PW 1 S. Udaya Bhaskar to the attendant facts and circumstances including the recovery of this amount from the possession of the appellant by the trap team identification of the currency notes used in the trap operation and also the chemical reaction of the sodium carbonate solution qua the appellant we are left unpersuaded to return a finding that the prosecution in the instant case has been able to prove the factum of demand beyond reasonable doubt. Even if the evidence of PW 1 S. Udaya Bhaskar is accepted on the face value it falls short of the quality and decisiveness of the proof of demand of illegal gratification as enjoined by law to hold that the offence under Section 7 or Sections 13(1)(d)(i) and of the Act has been proved. True it is that on the demise of the complainant primary evidence if any of the demand is not forthcoming. According to the prosecution the demand had in fact been made on 3 10 1996 by the appellant to the complainant and on his complaint the trap was laid on the next date i.e. 4 10 1996. However the testimony of PW 1 S. Udaya Bhaskar does not reproduce the demand allegedly made by the appellant to the complainant which can be construed to be one as contemplated in law to enter a finding that the offence under Section 7 or Sections 13(1)(d)(i) andof the Act against the appellant has been proved beyond reasonable doubt. 25. In our estimate to hold on the basis of the evidence on record that the culpability of the appellant under Sections 7 and 13(1)(d)(i) and has been proved would be an inferential deduction which is impermissible in law. Noticeably the High Court had acquitted the appellant of the charge under Section 7 of the Act and the State had accepted the verdict and has not preferred any appeal against the same. The analysis undertaken as hereinabove qua Sections 7 and 13(1)(d)(i) andof the Act thus had been to underscore the indispensability of the proof of demand of illegal gratification. 26. In reiteration of the golden principle which runs through the web of administration of justice in criminal cases this Court in Sujit Biswas v. State of Assam had held that suspicion however grave cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of “may be” true but has to upgrade it in the domain of “must be” true in order to steer clear of any possible surmise or conjecture. It was held that the court must ensure that miscarriage of justice is avoided and if in the facts and circumstances two views are plausible then the benefit of doubt must be given to the accused. 27. The materials on record when judged on the touchstone of the legal principles adumbrated hereinabove leave no manner of doubt that the prosecution in the instant case has failed to prove unequivocally the demand of illegal gratification and thus we are constrained to hold that it would be wholly unsafe to sustain the conviction of the appellant under Sections 13(1)(d)(i) andread with Section 13(2) of the Act as well. In the result the appeal succeeds. The impugned judgment and order of the High Court is hereby set aside. The appellant is on bail. His bail bond stands discharged. Original record be sent back immediately.Mr. Pallav in this respect next relied upon the judgment of Hon’ble Supreme Court of India in the case of Mukhtiar Singh v. State of Punjab 8 SCC 136 paragraphs 13 and 14 of which reads as 13. The indispensability of the proof of demand and illegal gratification in establishing a charge under Sections 7 and 13 of the Act has by now engaged the attention of this Court on umpteen occasions. In A. Subair v. State of Kerala this Court propounded that the prosecution in order to prove the charge under the above provisions has to establish by proper proof the demand and acceptance of the illegal gratification and till that is accomplished the accused should be considered to be innocent. Carrying this enunciation further it was exposited in State of Kerala v. C.P. Rao that mere recovery by itself of the amount said to have been paid by way of illegal gratification would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe conviction cannot be sustained. 14. In P. Satyanarayana Murthy this Court took note of its verdict in B. Jayaraj v. State of A.P. underlining that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Section 7 as well as Sections 13(1)(d)(i) andof the Act. It was recounted as well that in the absence of any proof of demand for illegal gratification the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. Not only the proof of demand thus was held to be an indispensable essentiality and an inflexible statutory mandate for an offence under Sections 7 and 13 of the Act it was held as well qua Section 20 of the Act that any presumption thereunder would arise only on such proof of demand. This Court thus in P. Satyanarayana Murthy on a survey of its earlier decisions on the pre requisites of Sections 7 and 13 and the proof thereof summed up its conclusions as hereunder:“23. The proof of demand of illegal gratification thus is the gravamen of the offence under Sections 7 and 13(1)(d)(i) andof the Act and in absence thereof unmistakably the charge therefor would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof dehors the proof of demand ipso facto would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder.”(emphasis Mr. Pallav then submitted that in this case there is absolutely no evidence regarding the demand of illegal gratification. Therefore it is submitted that no offence punishable under Section 7 of the Prevention of Corruption Act 1988 or for that matter Section 13 of the Prevention of Corruption Act 1988 read with Section 13(d)and ii) of the said Act is made out. It is then submitted that evidence of mere recovery of tainted money with the post trap formalities is by itself not sufficient to constitute the offence punishable under Section 7 of the Prevention of Corruption Act 1988 or for that matter Section 13 2) of the Prevention of Corruption Act 1988 read with Section 13d)andof the said Act so the appellant convict be acquitted of the charges by at least giving him the benefit of doubt. It is lastly submitted that the impugned judgment of conviction and order of sentence be set aside and the appellant convict be acquitted of the charges at least by giving him the benefit of doubt. 21. Mr. Rohit Sinha the learned counsel for the Central Bureau of Investigation on the other hand defended the impugned judgment of conviction and order of sentence and submitted that as the P.W.4 PW6 and PW11 have categorically deposed about the ingredients of the offences for which the appellant convict has been convicted and their testimonies have been corroborated by the testimonies of the other witnesses of the prosecution thus the evidence in the record are sufficient enough to establish the charges for the offences punishable under Section 7 and Sections 13 read with Section 13(d) of the Prevention of Corruption Act 1988. It is lastly submitted by Mr. Sinha that as the learned trial court taking into consideration the evidence in the record having rightly convicted and sentenced the appellant convict hence there being no merit in this appeal the same be dismissed. 22. Having heard the submissions made at the Bar and after going through the evidence in the record it is crystal clear that there is absolutely no evidence in the record regarding the demand of money by the appellant convict. The PW 4 PW 6 and PW 11 have categorically stated that initially the appellant convict refused to receive the money offered by the PW 6 and only upon insistence of the PW 6 he received the money. Further as already indicated above the prosecution witnesses themselves have stated that when the appellant convict were challenged by the personnel of CBI regarding accepting of the bribe from the PW6 the appellant convict since the beginning pleaded that he did not demand the bribe. The verification officer being the PW 12 never went to the appellant convict during the verification of the complaint submitted by the PW6 hence he had no occasion either to hear from the appellant convict as to whether he ever demanded any bribe from the PW6. There is absolutely no substantive evidence in the record regarding the demand of bribe by the appellant convict. Under such circumstances keeping in view the principle of law settled in the case of P. Satyanarayan Murthy Vs. District Inspectorthis court has no hesitation in holding that the evidence in the record is insufficient to establish the essential ingredient of demand of illegal gratification by the appellant convict for constituting the offences punishable under section 7 or for that matter section 13 read with section 13 (d) of the Prevention of Corruption Act 1988. So in the absence of essential ingredient of demand of bribe the presumption in this case under Section 20 of Prevention of Corruption Act 1988 in the considered opinion of this Court cannot be drawn. Thus this is a fit case where the appellant convict be acquitted of the charges framed against him in this case by giving him the benefit of doubt. 23. Accordingly the impugned Judgment of Conviction and Order of Sentence dated 05.12.2011 passed by the Special Judge C.B.I. Dhanbad in R.C. Case No.24 04 R is set aside and appellant convict namely Bishnu Deo Ram is acquitted by giving him the benefit of doubt. Perusal of the record reveals that the appellant convict Bishnu Deo Ram is on bail. In view of his acquittal the appellant convict is discharged of the liability of his bail bond. In the result this appeal is allowed. Let a copy of this judgment along with the lower court records be sent to the learned court below forthwith. Anil Kumar Choudhary J.) High Court of Jharkhand Ranchi Dated the 11th day of May 2021 AFR Animesh

Bounden duty of Court to provide legal assistance to an individual who is unable to engage a legal counsel: Madras High Court

Courts must mandatorily provide legal assistance through Legal Service Authority to an individual who is unable to afford or engage a legal counsel. A Bench of P Velmurugan J, while adjudicating the matter in The Executive Magistrate v. The State; [Crl.M.P.No.5016 of 2021], dealt with the issue of providing legal assistance to the needy. The case of the petitioner is that while the second respondent, Police was at regular patrolling, the petitioner was stands by suspicious and he was arrested and questioned and the second respondent initiated the proceedings under Section 107 of Cr.P.C. As per the proceedings, the petitioner executed a bond under Section 110 Cr.P.C. During the said bond period, the petitioner violated the proceedings and involved in another case in Crime No.121 of 2021 for the offence under Section 294(b), 341, 323, 324, 307 and 506(ii) IPC. Thereafter, the first respondent initiated action against the petitioner under Section 122(1)(b) Cr.P.C for the breach of bond executed by the petitioner under Section 110 Cr.P.C. Challenging the said order, the petitioner is before this Court. The learned counsel for the petitioner would submit that the petitioner was not involved in any offence and a false complaint has been foisted against him. The first respondent without affording any opportunity to the petitioner and without examining the witnesses, passed an order under Section 122(1)(b) Cr.P.C and cancelled the bail bond executed by the petitioner and imposed sentence of imprisonment for the remaining period. The learned Government Advocate (Crl.Side) would submit that after providing sufficient opportunity only, the petitioner was produced before the second respondent for enquiry. At the time of trial, the petitioner has not raised any request regarding legal assistance, but, now, the petitioner has raised the said objection. Hence, there is no merit in this case and the same may be liable to be dismissed. Admittedly, the petitioner was arrested in suspicious and on execution of bail bond he was involved in another case in Crime No.121 of 2021 for the offence under Section 294(b), 341, 323, 324, 307 and 506(ii) IPC. Thereafter, the second respondent initiated action against the petitioner under Section 122(1)(b) of Cr.P.C for the breach of bond executed under Section 110 Cr.P.C. It is settled proposition of law, the accused, who is in custody, has to be provided with legal assistance by engaging a counsel on his own. If the petitioner is not in a position to engage a counsel on his own, it is the bounden duty of the respondents/Court to provide legal assistance through Legal Services Authority. In this case, the first respondent ought to have offered adequate time to engage a counsel to defend him or engage a counsel through Legal Services Authority.

Crl.R.C.No.2221IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 30.04.2021CORAM:THE HON BLE Mr. JUSTICE P.VELMURUGANCriminal Revision Case No.2221 &Crl.M.P.No.50121Prasad ... Petitioner..vs..1.The Executive Magistrate cum the Deputy Commissioner of Police Washermenpet.2.State by The Inspector of PoliceH8 Thiruvottiyur Police Station Chennai District. ... Respondents Criminal Revision Case filed under Section 397 read with 401 Cr.P.C to call for the records pertaining to the order dated 24.03.2021 passed against the petitioner in M.P.No.221 in LIR No.24 Sec.Pro DCP WPT 2020 on the file of the Executive Magistrate cum the Deputy Commissioner of Police Washermenpet. Page No.1 8 n Crl.R.C.No.2221For Petitioner :Mr.S.SilambuselvanFor Respondents:Mr.K.MathanGovernment Advocate341 323 324 307 and 506(ii) IPC. Thereafter the first respondent initiated action Page No.2 8 n Crl.R.C.No.2221against the petitioner under Section 122(1)(b) Cr.P.C for the breach of bond executed by the petitioner under Section 110 Cr.P.C. Challenging the said order the petitioner is before this Court.3. The learned counsel for the petitioner would submit that the petitioner was not involved in any offence and a false complaint has been foisted against him. The first respondent without affording any opportunity to the petitioner and without examining the witnesses passed an order under Section 122(1)(b) Cr.P.C and cancelled the bail bond executed by the petitioner and imposed sentence of imprisonment for the remaining period.4. The learned Government Advocatewould submit that after providing sufficient opportunity only the petitioner was produced before the second respondent for enquiry. At the time of trial the petitioner has not raised any request regarding legal assistance but now the petitioner has raised the said objection. Hence there is no merit in this case and the same may be liable to be dismissed.5. Heard the learned counsel on either side and perused the materials Page No.3 8 n Crl.R.C.No.2221available on record.6. Admittedly the petitioner was arrested in suspicious and on execution of bail bond he was involved in another case in Crime No.1221 for the offence under Section 294(b) 341 323 324 307 and 506(ii) IPC. Thereafter the second respondent initiated action against the petitioner under Section 122(1)(b) of Cr.P.C for the breach of bond executed under Section 110 Cr.P.C. 7. On a careful perusal of the records it is seen that on Prisoner s Transit Warrant the petitioner was summoned before the first respondent on 22.03.2021 however no opportunity was provided to the petitioner to engage a counsel and passed the impugned order on 24.03.2021. It is settled proposition of law the accused who is in custody has to be provided with legal assistance by engaging a counsel on his own. If the petitioner is not in a position to engage a counsel on his own it is the bounden duty of the respondents Court to provide legal assistance through Legal Services Authority. In this case the first respondent ought to have offered adequate time to engage a counsel to defend him or engage a Page No.4 8 n Crl.R.C.No.2221counsel through Legal Services Authority. 8. In such view the order passed by the first respondent dated 24.03.2021 is hereby set aside and the matter is remitted back to the first respondent for fresh consideration. The first respondent is directed to issue fresh summons to the witnesses and also provide legal assistance to the petitioner through the Legal Services Authority if the petitioner is not in a position to engage a counsel on his own and dispose of the case in accordance with law. Such exercise shall be completed within a period of two months from the date of receipt of a copy of this order. The petitioner shall co operate with the respondents for enquiry.9. With the above direction this Criminal Revision Case is disposed of. Consequently connected miscellaneous petition is closed.30.04.2021r n sPage No.5 8 n Crl.R.C.No.2221To1.The Executive Magistrate cum the Deputy Commissioner of Police Washermenpet.2.The Inspector of PoliceH8 Thiruvottiyur Police Station Chennai District. 3. The Public Prosecutor High Court Madras. 4.The Superintendent Central Prison I Puzhal Chennai.Page No.6 8 n Crl.R.C.No.2221P.VELMURUGAN J.r n sCriminal Revision Case No.2221 &Crl.M.P.No.5012130.04.2021Page No.7 8 n Crl.R.C.No.2221Page No.8 8

Court obliged to enforce Specific Performance of Contract after 2018 Amendment

The Hon’ble Supreme Court of India in B. Santoshamma & Anr. V. D. Sarla & Anr. [ Civil Appeal No. 3574 of 2009] held that the relief for Specific Performance of a Contract is not discretionary post 2018 amendment of the Act. The Division bench comprising of Hon’ble Justices Uday Umesh Lalit and Indra Banerjee while deciding on a question of law pertaining to the interpretation of Specific Relief Act prior to 2018 amendment, observed that “After the amendment of Section 10 of the S.R.A., the words “specific performance of any contract may, in the discretion of the Court, be enforced” have been substituted with the words “specific performance of a contract shall be enforced subject to …”. The Court is, now obliged to enforce the specific performance of a contract, subject to the provisions of sub-section (2) of Section 11, Section 14 and Section 16 of the S.R.A. Relief of specific performance of a contract is no longer discretionary, after the amendment.” While referring to S. 12 of the Specific Relief Act the Hon’ble Court observed that “Section 12 of the SRA is to be construed and interpreted in a purposive and meaningful manner to empower the Court to direct specific performance by the defaulting party, of so much of the contract, as can be performed, in a case like this. To hold otherwise would permit a party to a contract for sale of land, to deliberately frustrate the entire contract by transferring a part of the suit property and creating third party interests over the same. 88. Section 12 has to be construed in a liberal, purposive manner that is fair and promotes justice. A contractee who frustrates a contract deliberately by his own wrongful acts cannot be permitted to escape scot free.”   Click here to Read Judgement   The Division bench comprising of Hon’ble Justices Uday Umesh Lalit and Indra Banerjee while deciding on a question of law pertaining to the interpretation of Specific Relief Act prior to 2018 amendment, observed that “After the amendment of Section 10 of the S.R.A., the words “specific performance of any contract may, in the discretion of the Court, be enforced” have been substituted with the words “specific performance of a contract shall be enforced subject to …”. The Court is, now obliged to enforce the specific performance of a contract, subject to the provisions of sub-section (2) of Section 11, Section 14 and Section 16 of the S.R.A. Relief of specific performance of a contract is no longer discretionary, after the amendment.” While referring to S. 12 of the Specific Relief Act the Hon’ble Court observed that “Section 12 of the SRA is to be construed and interpreted in a purposive and meaningful manner to empower the Court to direct specific performance by the defaulting party, of so much of the contract, as can be performed, in a case like this. To hold otherwise would permit a party to a contract for sale of land, to deliberately frustrate the entire contract by transferring a part of the suit property and creating third party interests over the same. 88. Section 12 has to be construed in a liberal, purposive manner that is fair and promotes justice. A contractee who frustrates a contract deliberately by his own wrongful acts cannot be permitted to escape scot free.”   Click here to Read Judgement   While referring to S. 12 of the Specific Relief Act the Hon’ble Court observed that “Section 12 of the SRA is to be construed and interpreted in a purposive and meaningful manner to empower the Court to direct specific performance by the defaulting party, of so much of the contract, as can be performed, in a case like this. To hold otherwise would permit a party to a contract for sale of land, to deliberately frustrate the entire contract by transferring a part of the suit property and creating third party interests over the same. 88. Section 12 has to be construed in a liberal, purposive manner that is fair and promotes justice. A contractee who frustrates a contract deliberately by his own wrongful acts cannot be permitted to escape scot free.”  

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.3574 OF 2009 B. SANTOSHAMMA & ANR. ….Appellants D. SARALA & ANR …..Respondents CIVIL APPEAL NOS. 3575 3577 OF 2009 JUDGMENT Indira Banerjee J These appeals are against a common judgment and order passed by the High Court of Judicature of Andhra Pradesh at Hyderabad dismissing the appeals being A.S. Nos.8994 8994 8994 and 17894 and inter alia confirming the judgment and decree of the Trial Court in O.S.No.293 and OS No. 993 and the decree of dismissal by the Trial Court of the Suit being O.S.No.993. The Appellant No.1 in Civil Appeal No. 3574 of 2009 B Santoshamma hereinafter referred to as the ‘Vendor’ wife of the Appellant No.2 in the said appeal B. Darshan Reddy purchased 300 square yards of land in survey No. 262 of Hayathnagar Village and Taluk in Ranga Reddy District hereinafter referred to as the ‘suit land’ from one D. Tanesha under a registered sale deed dated 20th August 1982 After about ten days the Vendor allegedly entered into an oral agreement with the proforma respondent in the said appeal P. Pratap Reddy for sale of 100 sq. yards out of the suit land in his favour for a total consideration of Rs.3000 out of which Rs.2 500 was paid in advance. The Vendor claims to have delivered possession of the said 100 sq. yards to Pratap Reddy on the date of the oral agreement On or about 20th January 1984 the alleged oral agreement between the Vendor and Pratap Reddy was allegedly reduced into writing upon payment of the balance consideration of Rs.500 . The Vendor and her husband allegedly agreed to execute the sale deed on an auspicious day after consulting the family priest On 21st March 1984 the Vendor entered into an agreement with the contesting respondent in Civil Appeal No. 35709 Smt D. Sarala hereinafter referred to as the Vendee for sale of the suit land to the Vendee for a total consideration of Rs.75 000 out of which Rs.40 000 was paid by the Vendee to the Vendor in advance The Vendor claims to have informed the Vendee of the oral agreement with Pratap Reddy which had been reduced to writing on 20th January 1984. The Vendor and her husband Darshan Reddy contend that the Vendor had also specifically informed the Vendee that the Vendor had received the sale consideration for 100 sq. yards from Pratap Reddy and had delivered possession of 100 sq. yards of land to him The Vendor has alleged that she specifically requested the Vendee to incorporate a clause with regard to the earlier agreement with Pratap Reddy in the sale agreement between the Vendor and the Vendee. However the Vendee assured the Vendor that she would get the earlier agreement with Pratap Reddy cancelled as her husband knew Pratap Reddy well and had already spoken to Pratap Reddy According to the Vendor the Vendee represented to the Vendor that there was no need for the Vendor to get any clearance from Pratap Reddy as the Vendee and her husband had been assured by Pratap Reddy that no difficulty would be created by him On or about 25 May 1984 that is about two months after execution of the sale agreement with the Vendee the Vendor executed a registered deed of conveyance transferring 100 sq. yards of the suit land in favour of Pratap Reddy. The Vendor and her husband Darshan Reddy as also Pratap Reddy have alleged that the Vendee had tried to interfere with Pratap Reddy’s possession of 100 sq. yards of the suit land On or about 20th June 1984 the Vendor allegedly issued notice to the Vendee contending that the agreement of sale dated 21st March 1984 was conditional upon clearance from Pratap Reddy in view of the earlier agreement of the Vendor with Pratap Reddy for sale of 100 sq. yards of the suit. The purported notice if any was issued after execution of the registered deed of conveyance for sale of 100 sq. yards of the suit land in favour of Pratap Reddy On 22nd June 1984 the Vendor’s husband Darshan Reddy lodged a complaint with the Station House Officer Hayathnagar alleging that the original sale deed of the suit land in favour of the Vendor in respect of the suit land had been stolen from his residence alongwith other documents By a letter dated 28th June 1984 the Vendee replied to the notice contending that the document had been handed over by the Vendor to the Vendee. Sometime thereafter the Vendee filed a suit being O.S.No.2284 in the Court of the Principal Subordinate Judge Rangareddy District for specific performance of the agreement of sale dated 21st March 1984. In the said suit the Vendee being the plaintiff claimed delivery of possession of 300 sq yards of land from the Vendor. Pratap Reddy was not impleaded defendant in the said suit for specific performance of the Agreement dated 21.3.1984. Later the Vendee filed an application being I.A.No.489 for impleading Pratap Reddy pursuant to which an order dated 5th April 1989 was passed whereby Pratap Reddy was added as defendant No.3 in the said suit In the meanwhile in 1985 Pratap Reddy filed a suit being O.S.No.190 of 1985 in the court of the Principal District Munsif Hyderabad East and North seeking a decree of perpetual injunction restraining the Vendee from interfering with his possession over 100 sq. yards of the suit land In the suit filed by Pratap Reddy it was alleged that he was not aware of any agreement of sale between the Vendor and the Vendee in respect of the suit land or of payment of Rs.40 000 to the Vendee in terms thereof It is the case of Pratap Reddy that even if the Vendee had entered into any agreement as alleged with the Vendor there could be no question of sale of 100 sq. yards of the suit land earlier agreed to be sold to Pratap Reddy and actually sold to Pratap Reddy by a registered deed of conveyance dated 25.5.1984 The Vendee also filed a suit being O.S.No.4085 against Pratap Reddy in the Court of Principal District Munsif Hyderabad for a declaration that the agreement between the Vendor and Pratap Reddy with regard to 100 sq. yards was null and void. The Vendor was not impleaded as party to the said suit. On or about 19th July 1989 the Vendor and her husband Darshan Reddy filed their Written Statement in O.S.No.2284 subsequently renumbered as O.S.No.20 of 1993 being the suit for specific performance of the sale agreement between the vendor and the Vendee which is hereinafter referred to as the suit for specific performance. Pratap Reddy also filed his written statement in the suit for specific performance. The three suits have from time to time been renumbered The suit for specific performance which had been transferred to the Additional District Court of Rangareddy District and renumbered O.S.No.293 was clubbed for hearing along with Suit No.190 of 1985 renumbered as O.S.No.91 of 1993 and O.S.No.7091 renumbered as O.S.No.993 The Trial Court framed the following issues in the suit being O.S No.20 1993 that is the suit for specific performance: “1. Whether the plaintiffwas put in possession of the suit plot admeasuring 300 sq. yards 2. Whether the suit agreement of sale was subject to the clearance of any agreement of sale of 100 sq. yards out of the suit plot in favour of one Sri. P. Pratap Reddy 3. Whether the sale of 100 sq. yards out of the suit plot to Sri. P. Pratap Reddy is true and binding on the plaintiff.(sic 4. Whether the suit is bad for non joinder of necessary 5. Whether the defendantscommitted breach of contract of sale 6. Whether plaintiff is entitled to the specific performance of the suit agreement of sale 7. To what relief ” An additional issue was framed as to whether 3rd defendant that is Pratap Reddy was a bona fide purchaser of 100 square yards of the In O.S.No.91 1993 being the suit for injunction filed by Pratap Reddy the Trial Court framed the following issues “1.Whether the plaintiff is entitled to perpetual injunction as prayed for 2.To what relief ” The following additional issue was also framed “Whether the plaintiffis entitled to the declaration and possession sought ” In Original Suit No.993 being the suit for declaration filed by the Vendee against Pratap Reddy the following issues were “1. Whether the suit is bad for non joinder of parties 2. Whether the plaintiffis entitled to declaration as prayed for 3. Whether the defendants are entitled to exemplary costs of Rs.3 000 4. To what relief ” By a common judgment and decree dated 30th March 1994 the learned District Judge Rangareddy disposed of all the three suits The suit for specific performance was allowed in part holding that the Vendee was not entitled to seek specific performance of the agreement in respect of 100 sq. yards covered by the sale deed dated 25th May 1984 but entitled to relief of specific performance in respect of the remaining 200 sq. yards of the suit land. The Vendee’s suit for declaration against Pratap Reddy was dismissed for non joinder of the Vendor. Since Exhibit A 1 being the sale agreement dated 21st March 1984 between the Vendor and the Vendee showed that the sale consideration for 300 sq. yards land was fixed at Rs.75 000 which meant that the price fixed per sq. yard was Rs.250 the Court held that the Vendee had to pay Rs.50 000 to the Vendor towards sale consideration. As the Vendee was found to have paid Rs.40 000 under Ex.A1 and a further Rs.5 000 under the receipt being Ex.A3 the Trial Court effectively held that the Vendee was liable to pay a further sum of Rs.5 000 to the Vendor. The Vendee was directed to deposit Rs.5 000 in Court towards the balance sale consideration payable by her on or before 15th April 1994 whereupon the Vendee would have to execute a sale deed in respect of 200 sq. yards from out of the suit land in favour of the Vendee. In case of failure to deposit Rs.5 000 in Court within the time stipulated the suit would Being aggrieved by the judgment and order referred to above the Vendor filed an appeal in the High Court against the judgment and decree in the suit for specific performance being O.S. of 1993 which was numbered as A.S. 1785 of 1994. The Vendee also filed three appeals being A.S. No.8994 against the judgment and decree in O.S.No.993 an appeal being A.S.No.8994 against the judgment and decree in O.S.No.293 and an appeal being A. S. No.894 of 1994 against the judgment and decree in O.S.No.993. By a common judgment and order dated 7th September 2006 which is under appeal in this Court the High Court inter alia dismissed all the appeals that is A.S. Nos.892 893 894 filed by the Vendee and A.S. No.17894 filed by the Vendor and confirmed the judgment passed by the Trial Court. While the appeal being C.A. No.35709 has been filed by the Vendor the three appeals being C.A. Nos 3575 3577 have been filed by the Vendee Mr. Gowtham appearing on behalf of the appellant in C.A 35709 being the Vendor submitted that the agreement dated 21st March 1984 between the Vendor and Vendee was liable to be cancelled as the Vendee had defaulted in making payment of the balance amount within the time stipulated in the said agreement Mr. Gowtham argued that there was a clause in the agreement dated 21.3.1984 executed by and between the Vendor and the Vendee in terms whereof the Vendor agreed to register the sale deed in favour of the Vendee within 45 days from the date of the said agreement subject to receipt of the full consideration amount within 4.5.1984. Mr. Gowtham submitted that full payment was not made within the aforesaid date. The appellants after waiting for 20 more days executed and registered a sale deed in favour of Pratap Reddy in respect of 100 square yards of land Mr. Gowtham argued that the sale agreement was conditional upon cancellation of the prior agreement with Pratap Reddy. It was argued that the Vendee who knew of the pre existing agreement between the Vendor and Pratap Reddy had assured the Vendor that she and or her husband had already spoken to Pratap Reddy to get the agreement between the Vendee and Pratap Reddy cancelled Mr. Gowtham emphatically argued that the agreement dated 21.3.1984 was a composite agreement for sale of 300 sq. yards of land for a lump sum consideration of Rs.75 000 . Since it was not possible to sell 300 sq. yards to the Vendee as per the sale agreement the sale agreement became infructuous and incapable of specific performance. There was no scope for sale of 200 sq. yards of land at a reduced consideration Mr. Gowtham argued that there could be no question of any decree of specific performance of the agreement dated 21.3.1984 in favour of the Vendee in the absence of readiness and willingness on the part of the Vendee to perform her obligations under the The Vendor and her husband Darshan Reddy contended that they had not refused to execute the registered sale deed as alleged It was the contesting respondent who had failed to bring about a settlement with Pratap Reddy as agreed and had also failed to pay the balance consideration within the time stipulated in the agreement. Time being of essence to the agreement it could not be 30. The Vendor and her husband Darshan Reddy also asserted that the Vendee was also not ready to pay the balance sale consideration and had sought further time for payment on the ground that he did not have the money. The suit for specific performance was thus not maintainable. In any case the agreement for sale of 300 sq. yards of land to the Vendee was incapable of performance since the appellant did not have 300 sq. yards of land The Vendor and her husband Darshan Reddy have categorically denied that they had delivered possession of 300 sq yards of land to the Vendee. They have asserted that the Vendee had taken possession of 200 sq. yards of land 100 sq. yards having been transferred to Pratap Reddy Mr. Radhakrishnan appearing on behalf of the Vendee argued that the Vendee should have been granted specific performance of the agreement dated 21.3.1984 in its entirety. The Court should have set aside the purported sale deed in respect of 100 sq. yards of land in favour of Pratap Reddy and directed the Vendor to sell the entire suit property comprising 300 sq. yards to the Vendee Mr. Radhakrishnan argued that the purported sale agreement of the Vendor with Pratap Reddy was not genuine. It is difficult to believe that the Vendor would within 11 days from purchase of 300 sq. yards of landenter into an agreement for sale of 100 sq. yards out of the suit land Mr. Radhakrishnan further argued that the execution and registration of the sale deed in favour of Pratap Reddy in respect of 100 sq. yards of land was in any case subsequent to the Agreement dated 21.3.1984 between the Vendor and the Vendee Mr. Radhakrishnan emphatically argued that the agreement dated 21.3.1984 was for sale by the Vendor to the Vendee of 300 sq yards for a consideration of Rs.75 000 pursuant to which possession of the entire 300 sq. yards of land was delivered to the Vendee. This has of course been denied by the Vendor Refuting the contention advanced by the Vendee of want of readiness and willingness on the part of the Vendee to perform her obligations under the Agreement dated 21.3.1984 Mr. Radhakrishnan further argued that the fact that the Vendee had paid Rs.40 000 to the Vendor on the date of execution of the sale agreement itself apart from Rs.5 000 which the Vendee had admittedly paid to Darshan Reddy demolishes the contention of the Vendor. These payments towards part consideration were duly Mr. Radhakrishnan pointed out that on 30.4.1984 the Vendee approached the Vendor and her husband with the balance amount of Rs.30 000 and requested them to register the sale deed but the Vendor and her husband refused to receive the amount and instead requested the Vendee to make the payment by Demand Draft According to the Vendee the Vendee obtained a Demand Draft No.463961 dated 4.5.1984 for Rs.30 000 from Canara Bank but the Vendor did not accept the same. On 25.5.1984 the Vendee issued a legal notice. Receipt of the legal notice was duly acknowledged by the Vendor and her husband. A further legal notice was issued by the Vendee on 12.8.1984. In the meanwhile by a letter dated 20.6.1984 in reply to the legal notice of 25.5.1984 the Vendor admitted receipt of Rs.45 000 but claimed that the agreement was subject to the Vendee securing the approval of Pratap Reddy to end the earlier agreement between the Vendor and Pratap Reddy for transfer of 100 sq. yards of land to Pratap Reddy Mr. Radhakrishnan concluded his arguments with the submission that the Vendee had not delayed performance of her obligations under the agreement dated 21.3.1984. Within 30.4.1984 the entire consideration was tendered but unfortunately not accepted by the Vendor with ulterior intent of resiling from her obligations under the said argument to transfer the suit property to the Vendee By 4th May 1984 that is within 47 days from the date of the agreement dated 21.3.1984 the Vendee was ready with a Demand Draft for the balance Rs.30 000 Mr. Navare appearing on behalf of Pratap Reddy submitted that the Appeals are all liable to be dismissed. First of all on the date on which the Vendee filed the suit for specific performance of the agreement against the Vendor and her husband she was aware of the registered sale deed executed by the Vendor in favour of Pratap Reddy in respect of 100 sq. yards of land. Yet the Vendee filed a suit against the Vendor and her husband for specific performance of the agreement in which Pratap Reddy was not impleaded defendant There was no challenge to the sale deed in favour of Pratap Reddy Mr. Navare argued that the Vendee filed a second suit against Pratap Reddy for a declaration that the sale deed executed by the Vendor in his favour was void without impleading the Vendor Mr. Navare pointed out that as late as on 5.4.1989 the Vendee filed an application for impleading Pratap Reddy as defendant in her suit for specific performance filed in 1984. The Vendee only added Pratap Reddy. There was no amendment either in the pleadings or in the prayers. The reliefs claimed by the Vendor in the suit for specific performance were thus barred by limitation as against Pratap Reddy in the absence of any clarification by the Trial Court as required under Section 21 of the Limitation Act 1963 Mr. Navare further submitted that there being no prayer against Pratap Reddy in the suit for specific performance Pratap Reddy would not be bound to join the original owner in execution of the deed of conveyance in favour of the Vendee. In support of his submission Mr. Navare cited Durga Prasad and Anr. v. Deep Chand and Ors.1 1. AIR 1954 SC 75 Mr. Navare submitted that the Vendee chose not to challenge the registered sale deed in favour of Pratap Reddy or to seek any relief against Pratap Reddy in the Suit for Specific Performance Failure to make any such prayer amounted to relinquishment of the claim to such relief in view of Order II Rule 2 of the Code of Civil Mr. Navare submitted that the second suit filed by the Vendee is bad for non joinder of the Vendor. A registered sale deed executed by the Vendor cannot be declared void in her absence Mr. Navare concluded that the second suit was also hit by Order II Rule 2 and was thus barred under the law. In any case the second suit filed by the Vendor was only for a declaration and there was no prayer for any consequential relief. The second suit was thus hit by Section 34 of the Specific Relief Act 1963 Mr. Navare finally referred to Section 50(1) of the Registration Act 1908 set out hereinbelow for convenience “(1) Every document of the kinds mentioned in clausesb) andof section 17 sub sectionand clauses a) andof section 18 shall if duly registered take effect as regards the property comprised therein against every unregistered document relating to the same property and not being a decree or order whether such unregistered document be of the same nature as the registered document or not.” Referring to Section 50 Mr. Navare argued that a registered sale deed with respect to a property will take effect over any unregistered document with respect to the same property Mr. Navare submitted that Pratap Reddy had also filed a suit for declaration and possession being O.S. No.190 1985. All 3 suits were clubbed together and heard together. However consolidation of 3 suits does not convert 3 suits into one ii) Consolidation of suits is for practical reasons such as saving costs time and efforts of the parties convenience of the parties avoiding repetitive exercises in 3 suits and avoiding conflict of judgment in the 3 suits. However the 3 suits consolidated clubbed together retain their separate identity. In support of his argument Mr. Navare cited Mahalaxmi Coop Housing Society Ltd. and Ors. v. Ashabhai Atmaram Patelthr. Lrs. and Ors.2 Mr. Navare emphatically argued that the right which have accrued to Pratap Reddy as a result of defective suits filed by the Vendee cannot stand abrogated by consolidation of the suits. There is no provision in the CPC which permits a party to be deprived of such accrued right because of defects in the suit Mr. Navare submitted that the bar of the second suit under Order II Rule 2 of the CPC is not a defect of a technical nature. The 2.4 SCC 404Order II Rule 7 requires only objection as to mis joinder of causes of action to be taken at the earliest opportunity before issues are settled and otherwise such objection is deemed to be waived ii) Similarly Section 21 of the CPC specifically provides that any objection as to the place of suing must be raised at the earliest opportunity before issues are settled and the same cannot be raised in Appellate or Original Court for the first time iii) Legislature has specifically clarified the cases where the raising of an objection is necessary. There is no provision in the CPC with respect to objection under Order II Rule 2. The maxim “Expressum facitcessaretacitum” squarely applies here iv) There is a bar of Law prescribed by Order II Rule 2 against the second suit. It is a kind of bar contemplated under Order VII Rule 11 is in the following words “the Plaint shall be rejected...” Thus it casts an obligation on the Court to reject the same. Irrespective of whether an objection is raised by the defendant in the suit or not the consequence must follow Mr. Navare concluded that this Court might decline to invoke jurisdiction under Article 136 of the Constitution even if an impugned order is illegal. This Court should certainly not invoke its jurisdiction under Article 136 to reverse the judgment thereby effectively validating the second suit although it is barred by Order II Rule 2 of CPC. The Appeal should therefore be dismissed It is not in dispute that the Vendor agreed to sell the entire suit land comprising 300 square yards to the Vendee for a consideration of Rs.75 000 . The agreement dated 21.3.1984 is admitted by the Vendor It is also not in dispute that the Vendee paid Rs.40 000 to the Vendor on the date of the agreement itself and also paid a sum of Rs.5 000 to the Vendor’s husband which was duly acknowledged The defence of the Vendor that the Vendee was unable and or unwilling to perform her obligations under the agreement dated 21.3.1984 has been rejected by the Trial Court as also the Appellate Court that is the High Court The finding of the Trial Court affirmed by the High Court that the Vendee was ready and willing to perform her obligations under the agreement dated 21.3.1984 which is based on evidence and supported by cogent reasons is unexceptionable as discussed The contention of the Vendor that the agreement dated 21.3.1984 was subject to the condition that the Vendee would get the earlier agreement between the Vendor and Pratap Reddy cancelled cannot be accepted for the following reasons i) The agreement dated 21.3.1984 which is in writing does not incorporate any such condition It is incredible that the Vendor who knew Pratap Reddy to whom she had as per her own assertion agreed to sell 100 square yards of land should proceed on the basis of an alleged assurance of the Vendee that Pratap Reddy would relinquish his rights under the earlier agreement between the Vendor and Pratap Reddy without ascertaining from Pratap Reddy whether Pratap Reddy was actually ready to relinquish his rights under the said earlier agreement with her iii) Pratap Reddy has denied knowledge of the agreement between the Vendor and the Vendee iv) Within a month and a few days from the date of execution of the agreement between the Vendor and the Vendee after the Vendee tendered full consideration the Vendor executed a registered deed of conveyance in favour of Pratap Reddy without any prior intimation to the Vendee and without giving the Vendee any opportunity to persuade Pratap Reddy to abrogate his earlier agreement with the Vendor It is well settled that the onus of proof lies on the party who makes an allegation. It was for the Vendor to establish that the agreement dated 21.3.1984 was subject to the condition as alleged by the Vendor that the Vendee and or her husband would negotiate with Pratap Reddy to get his earlier agreement with the Vendor cancelled. The Vendor failed to discharge her onus of proving that there was such a condition in the agreement dated 21.3.1984. The Trial Court and the High Court rightly did not believe the Vendor. The effective concurrent finding of the High Court and the Trial Court that the Vendee had been ready and willing to perform and had in fact performed her obligations under the Agreement dated 21.3.1984 is also unexceptionable for the following reasons i) As observed above the Vendee paid Rs.40 000 out of the total consideration of Rs.75 000 on the date of execution of the Agreement dated 21.3.1984 itself It is not disputed that the Vendee paid a further Rs.5 000 to the Vendor’s husband against a receipt iii) It is the Vendor’s own case that in terms of the Agreement dated 21.3.1984 the full consideration was to be paid within 45 days. The Vendee’s claim that she tendered Rs.30 000 on 30.4.1984 was not disputed by the Vendor in her legal notice letter dated 20.6.1984 iv) In any case the Vendee obtained Demand Draft No.463961 dated 4.5.1984 for Rs.30 000 in favour of the Vendor towards balance consideration within 47 days from the execution of the Agreement dated 21.3.1984 It is well settled that time is not of essence to agreements for sale of immovable property unless the agreement specifically and expressly incorporates the consequence of cancellation of the agreement upon failure to comply with a term within the stipulated date The concurrent findings of the High Court and the Trial Court that the Vendee was ready and willing to perform and had performed her obligations under the Agreement dated 21.3.1984 which as observed above are based on evidence and sound reasons do not call for interference of this Court. It is true that the Trial Court had directed the Vendor to pay the balance of Rs.5 000 on or before 15.4.1994 failing which the suit for specific performance would stand dismissed. However any time granted by the Court at its discretion can always be extended by the Court In any case the Vendor had filed an appeal against the decree in the suit for specific performance. The Vendee who had been litigating for about 10 years by April 1994 and had already paid Rs.45 000 over 10 years ago but not got the suit land could not be expected to put in more money until the decree assumed finality upon disposal of the appeal Since there was an appeal of the Vendor pending the failure of the Vendor to put in Rs.5 000 within the time stipulated by Court wold not in itself disentitle the Vendor to the relief of specific performance. It was for the Court to decide whether or not to extend the time for payment of Rs.5 000 . The Appellate Court rightly expressed its discretion in favour of the Vendee. The question is whether as argued by Mr. Gowtham the High Court erred in affirming the common judgment of the Trial Court under appeal before the High Court whereby the Trial Court allowed the suit for specific performance in part holding that the Vendee was entitled to relief of specific performance in respect of 200 square yards of land covered by the Agreement dated 21.3.1984 at a reduced consideration of Rs.50 000 since the agreement dated 21.3.1984 was a composite agreement for sale of 300 sq. yards of land at a lump sum consideration of Rs.75 000 While Mr. Gowtham has argued that the Courts should not at all have allowed specific performance of the Agreement dated 21.3.1984 Mr. Radhakrishnan has argued that the conveyance in favour of Pratap Reddy should have been adjudged and declared a nullity and the suit for specific performance allowed in full by directing the execution and registration of a Deed of Conveyance in respect of the entire suit land The relief of specific performance of an agreement was at all material times equitable discretionary relief governed by the provisions of the Specific Relief Act 1963 hereinafter referred to as S.R.A. Even though the power of the Court to direct specific performance of an agreement may have been discretionary such power could not be arbitrary. The discretion had necessarily to be exercised in accordance with sound and reasonable judicial principles Section 10 of the S.R.A. as it stood prior to its amendment with effect from 1.10.2018 provided: “10. Cases in which specific performance of contract enforceable. Except as otherwise provided in this Chapter the specific performance of any contract may in the discretion of the court be enforced a) when there exists no standard for ascertaining actual damage caused by the non performance of the act agreed to be done or b) when the act agreed to be done is such that compensation in money for its non performance would not afford adequate relief Explanation. Unless and until the contrary is proved the court shall presume that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money and ii) that the breach of a contract to transfer movable property can be so relieved except in the following a) where the property is not an ordinary article of commerce or is of special value or interest to the plaintiff or consists of goods which are not easily obtainable in the market b) where the property is held by the defendant as the agent or trustee of the plaintiff.” After amendment with affect from 1.10.2018 Section 10 of the S.R.A. provides 10. Specific performance in respect of contracts. The Specific performance of a contract shall be enforced by the court subject to the provisions contained in sub sectionof section 11 section 14 and section 16 After the amendment of Section 10 of the S.R.A. the words “specific performance of any contract may in the discretion of the Court be enforced” have been substituted with the words “specific performance of a contract shall be enforced subject to ...”. The Court is now obliged to enforce the specific performance of a contract subject to the provisions of sub sectionof Section 11 Section 14 and Section 16 of the S.R.A. Relief of specific performance of a contract is no longer discretionary after the amendment. An agreement to sell immovable property generally creates a right in personam in favour of the Vendee. The Vendee acquires a legitimate right to enforce specific performance of the agreement It is well settled that the Court ordinarily enforces a contract in its entirety by passing a decree for its specific performance However Section 12 of the Specific Relief Act carves out exceptions where the Court might direct specific performance of a contract in part. Section 12 of the Specific Relief Act 1963 is set out hereinbelow for convenience. 12. Specific performance of part of contract.Where a party to a contract is unable to perform the whole of his part of it but the part which must be left unperformed by only a small proportion to the whole in value and admits of compensation in money the court may at the suit of either party direct the specific performance of so much of the contract as can be performed and award compensation in money for the deficiency Where a party to a contract is unable to perform the whole of his part of it and the part which must be left unperformed either a) forms a considerable part of the whole though admitting of compensation in money or b) does not admit of compensation in money he is not entitled to obtain a decree for specific performance but the court may at the suit of other party direct the party in default to perform specifically so much of his part of the contract as he can perform if the other party i) in a case falling under clausepays or has paid the agreed consideration for the whole of the contract reduced by the consideration for the part which must be left unperformed and a case falling under clause[pays or had paid] the consideration for the whole of the contract without any abatement ii) in either case relinquishes all claims to the performance of the remaining part of the contract and all right to compensation either for the deficiency or for the loss or damage sustained by him through the default of the defendant When a part of a contract which taken by itself can and ought to be specifically performed stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed the court may direct specific performance of the Explanation. For the purposes of this section a party to a contract shall be deemed to be unable to perform the whole of his part of it if a portion of its subject matter existing at the date of the contract has ceased to exist at the time of its Where a party to the contract is unable to perform the whole of his part of the contract the Court may in the circumstances mentioned in Section 12 of the S.R.A. direct the specific performance of so much of the contract as can be performed particularly where the value of the part of the contract left unperformed would be small in proportion to the total value of the contract and admits of The Court may under Section 12 of the S.R.A. direct the party in default to perform specifically so much of his part of the contract as he can perform provided the other party pays or has paid the consideration for the whole of the contract reduced by the consideration for the part which must be left unperformed. In this case the Vendee had apparently tendered the full consideration within the time stipulated in the Agreement dated 21.3.1984 that is within 45 days or if not 45 within 47 48 days from the date of its As observed above the Vendee admittedly paid Rs.40 000 from out of the total consideration of Rs.75 000 on the date of execution of the agreement a further sum of Rs.5 000 sometime thereafter which was duly acknowledged and also offered to pay the balance Rs.30 000 within 30.4.1984 that is within 45 days from the date of execution of the contract which the Vendor did not accept. A Demand Draft for equivalent amount of Rs.30 000 was obtained from Canara Bank on 4.5.1984 that is the 47th day of the execution of Admittedly a major portion of the full consideration that is Rs.45 000 had already been paid by the Vendor to the Vendee and the Vendor had been ready to and had offered to pay the entire balance consideration to the Vendor. However the Vendor purported to sell 100 square yards of the suit land to Pratap Reddy by executing a registered deed of conveyance in his favour As argued by Mr. Navare a registered deed of conveyance takes effect as regards the property comprised therein against every unregistered deed relating to the same property as provided in Section 50 of the Registration Act. The Vendee claimed specific performance of the agreement dated 21.3.1984 in its entirety and sought execution and registration of a deed of conveyance in respect of the entire suit land comprising 300 square yards but without impleading Pratap Reddy to whom ownership of 100 square yards of land had been transferred by a registered deed of conveyance. A transferee to whom the subject matter of a sale agreement or part thereof is transferred is a necessary party to a suit for specific performance. Unfortunately the Vendee omitted to implead Pratap Reddy. By the time she filed an application to implead Pratap Reddy in 1989 the suit for specific performance of the agreement dated 21.3.1984 had become barred by limitation as against Pratap Reddy Under the Limitation Act 1963 the period of limitation for filing a suit for specific performance is three years from the date fixed for performance of the contract or if no date is fixed then three years from the date on which the Vendee is put to notice of refusal to perform the agreementWhere after the institution of a suit a new plaintiff or defendant is substituted or added the suit shall as regards him be deemed to have been instituted when he was so made a party Provided that where the court is satisfied that the omission to include a new plaintiff or defendant was due to a mistake made in good faith it may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date. 2) Nothing in sub sectionshall apply to a case where a party is added or substituted owing to assignment or devolution of any interest during the pendency of a suit or where a plaintiff is made a defendant or a defendant is made a plaintiff. The Vendee was put to notice of the refusal of the Vendor to execute the agreement dated 21.3.1984 by the Vendor’s letter legal notice dated 20.6.1984. Any suit for specific performance would be time barred by June July 1987. Moreover it is a matter of record that the Vendee knew of the registered deed of conveyance in favour of Pratap Reddy when she instituted the suit in 1984. The Vendee neither amended her pleadings in the plaint nor amended the prayers. Pratap Reddy was simply added defendant The Court adding Pratap Reddy as defendant in the suit for specific performance did not make any direction in terms of the proviso to Section 21(1) of the Limitation Act that the suit against Pratap Reddy be deemed to be instituted at any earlier date. There could therefore be no question of any relief against Pratap Reddy in the suit for The Vendee did not implead the Vendor as defendant in her later suit inter alia for a declaration that the Deed of conveyance executed by the Vendor in favour of Pratap Reddy was null and void. The suit has rightly been dismissed for non joinder of the Vendor as defendant. There could be no question of a document being adjudged null and void without impleading the executant of the document as defendant The suit for specific performance being time barred against Pratap Reddy and the suit against Pratap Reddy also having been dismissed for non joinder of the Vendor there could be no question of nullifying the rights that had accrued to Pratap Reddy pursuant to the Deed of Conveyance dated 25.4.1984 executed by the Vendor transferring 100 sq. yards of the suit land to Pratap Reddy. Moreover there was apparently an agreement in writing executed between the Vendor and Pratap Reddy on or about 25.01.1984 before execution of the agreement between the Vendor and the Vendee. Since title in respect of 100 square yards had passed to Pratap Reddy and the suit for specific performance was barred by limitation the Trial Court was constrained to decree the suit for specific performance in part and direct that a Deed of Conveyance be executed in respect of the balance 200 square yards of the suit land under the ownership and control of the Vendor Section 12 of the SRA is to be construed and interpreted in a purposive and meaningful manner to empower the Court to direct specific performance by the defaulting party of so much of the contract as can be performed in a case like this. To hold otherwise would permit a party to a contract for sale of land to deliberately frustrate the entire contract by transferring a part of the suit property and creating third party interests over the same Section 12 has to be construed in a liberal purposive manner that is fair and promotes justice. A contractee who frustrates a contract deliberately by his own wrongful acts cannot be permitted to escape scot free After having entered into an agreement for sale of 300 Sq yards of land with her eyes open and accepted a major part of the consideration it does not lie in the mouth of the Vendor to contend that the contract should not have specifically been enforced in part in respect of the balance 200 sq yards meters of the suit land which the Vendor still owned. It is patently obvious that the Vendor did not disclose any earlier agreement to the Vendee as discussed above. The agreement in writing dated 21.3.1984 does not bear reference to any earlier agreement as noted above Instead of awarding damages in respect of the part of the contract which could not be enforced and or in other words damages for breach of agreement to sell the entire suit land the Trial Court reduced the total consideration by 1 3rd of the agreed amount in lieu of damages as one third of the area agreed to be sold to the Vendee could not be sold to her. The total price agreed upon being Rs.75 000 for the entire suit land comprising 300 square yards the agreed price works out to Rs.25 000 for 100 square yards and or Rs.2 500 per square yard. The Trial Court very fairly reduced the consideration by Rs.25 000 being the price of 100 square yards of land computed proportionally in lieu of damages. The Vendor can have no legitimate reason to complain Since we have upheld the dismissal of Suit No.92 1993 filed by the Appellant against Pratap Reddy it is not really necessary to go into the question of whether the said suit was barred under Order II Rule 2 of the Civil Procedure Code as contended by Mr. Navare. It is true that the clubbing of suits for hearing them together and disposal thereof by a common judgment and order is for practical reasons. Such clubbing together of the suits do not convert the suits into one action as argued by Mr. Navare. The suits retain their separate identity as held in Mahalaxmi Coop. Housing Society Ltd. and Ors. v. Ashabhai Atmaram Patel6 SCC 407 SCC 650

Application for initiation of CIRP cannot be accepted with pre-existing dispute : NCLAT

Proceeding ex parte against the corporate debtor based on substituted service through the newspaper is permissible only when it is shown that the corporate debtor is purposefully avoiding service. The judgment passed by the NCLAT New Delhi (principle bench), in its decision in Prakash Kalash v. Apeejay Surrendra Park Hotels (Company Appeal (AT) (Insolvency) No. 1462 of 2019) by Hon’ble Shri Justice Jarat Kumar Jain. The facts of the case were such that – The Appellant, filed the Appeal against Apeejay Surrendra Park Hotels Ltd., and Umesh Chandra Sahoo, under Section 61(1) of the I&B Code. The Appellant is a company incorporated under the Companies Act, 1956 having its registered office at Maharshi Valmiki, Ward No.28,Telibandha, Raipur, and Chhattisgarh. Apeejay Surrendra Park Hotels Ltd. (Respondent No. 1) had started the proceedings under Section 9 of the I&B Code for supposed neglected duty emerging out of the administrations performed under the „MTSA‟ between the Appellant and the Respondent. It was contended by the respondent that the Appeal is at risk to be excused on the ground that the equivalent is documented past 30 days from the date of passing of the reprimanded request, which is past the legal period as endorsed under area 61(2) of the I&B Code. The reproved request dated fourteenth November 2019 and Appeal is documented on 05.12.2019, which inside 30 days from the date of request. Consequently, Appeal is documented inside the legal time of Limitation as endorsed under Section 61(2) of the Code. The demand notice was given against the Corporate Debtor by enlisted post, which couldn’t be served by virtue of inadequate location. From that point onward, the demand notice was again sent through speed post. On scrutiny of the email dated fourteenth July 2018, apparently, the Corporate Debtor protested the posting of wrong income on bargain ledgers‟. It likewise shows up from scrutiny of email correspondence dated seventeenth October 2018 that the Corporate Debtor protested delivering a post-dated check of Rs.73 lakhs without keeping it educated to the Corporate Debtor. It is additionally expressed in the email that administration expenses will be paid after the bargain compromise issue is settled. On examination of the email dated fourteenth March 2019, apparently, the Corporate Debtor raised the issue in regards to support delivered by the Operational Creditor. It likewise shows that the Corporate Debtor educated the operational Creditor regarding assuming control over the total administration in its own hands as a result of being disappointed with the administrations delivered by the Operational Creditor. If notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility, the Adjudicating Authority is to see whether there is a plausible contention that requires further investigation and the “dispute “is not a patently feeble legal argument or an assertion of fact, unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defense which is mere bluster.

NATIONAL COMPANY LAW APPELLATE TRIBUNAL NEW DELHI Company Appeal(Insolvency) No. 14619 Arising out of Order dated 14th November 2019 passed by the Adjudicating Authority National Company Law Tribunal Cuttack in Company PetitionNo. 62 CTB 2019] IN THE MATTER OF: Prakash Kalash Shareholder & Member of suspended Board of M s Gurusukh Vintrade Service Pvt Ltd R o Gurusukh Villa Opposite Shagun Farm VIP Road Raipur Chattisgarh 492006 Mobile: 9993333332 Email: prakashkalash@yahoo.in 1. M s Apeejay Surrendra Park Hotels Ltd 17 Park Street Kolkata West Bengal Kolkata 700016 2. Ms Teena Saraswat Pandey Resolution Professional of M s Gurusukh Vintrade Service Private IBBI IPA P00652 2017 2018 11126 387 F 114 Scheme Part 1 Behind Diksha Boys Hostel Sant Nagar Indore Madhya Pradesh 452010 Respondent No.1 Respondent No.2 For Appellant Mr Krishna Mohan K Menon Advocate For Respondent Mr Vijay Kandel Advocate for R1. Mr Divyanshu Srivastava Advocate for R2. Company Appeal(Insolvency) No. 14619 J U D G M E N T Per V.P. Singh MemberThis Appeal emanates from the order dated 14th November 2019 passed by the Adjudicating Authority National Company Law Tribunal Cuttack in CP No. 62 CTB 2019 whereby the Adjudicating Authority has admitted the Application filed under Section 9 of the Insolvency & Bankruptcy Code 2016filed the present Appeal against the Respondent No.1 Apeejay Surrendra Park Hotels Ltd. and Respondent No. 2 Umesh Chandra Sahoo under Section 61(1) of the I&B Code. The Appellant is a company incorporated under the Companies Act 1956 having its registered office at Maharshi Valmiki Ward No.28 Telibandha Raipur and Chhattisgarh. The Appellant has opened Hotel at Great Eastern VIP Road Chowk Avanti Vihar Raipur Chhattisgarh. The Respondent No.1 had approached to the Appellant for providing technical services and pre operation advice for launching Hotel and further for the operation and management services after the launch of the Hotel. The Appellant entered into the „Management and Technical Service Agreement‟ from now on will be referred to as „MTSA‟ with Respondent No. 1. As per the Agreement the Respondent No.1 was responsible for the training of the staff. However they failed to provide Company Appeal(Insolvency) No. 14619 proper training to the hotel staff. They were posting wrong revenue on barter ledger to hide their under performance since the Hotel started its commercial operations. As per terms of the Agreement no payment was supposed to be made to any person without prior information of the Appellant. But the Respondent No.1 Operational Creditor in violation the terms of MTSA issued post dated cheques of Rs. Seventy three lakhs to itself even without informing the Appellant about the same. The Appellant Corporate Debtor further contends that as per the Agreement all the money received as revenue from the operations of the Hotel was supposed to be deposited in the bank account of the Hotel which was to be operated by the authorized representative appointed by Respondent No.1 Operational Creditor. Further all the operating expenses including taxes were to be discharged by Respondent No.1. However Respondent No.1 has miserably failed to deposit statutory dues and applicable taxes such as TDS EPF ESI GST VAT Service Tax and Luxury Tax since the beginning of the Hotel. The Appellant through an internal enquiry found that a non recoverable revenue of Rupees Seventy Lakh has been shown as revenue earned in financial records of the Hotel by the Respondent No.1. The Appellant contends that Respondent No.1 was responsible for the operation of the Hotel however there was no visit by the Respondent No.1 to the Hotel of the Appellant since August 2018. Thus effectively Respondent No.1 has not provided any service to the Appellant since August 2018. Company Appeal(Insolvency) No. 14619 6. Consequent upon the default made by the Respondent No.1 about the provision of services the Appellant disputed the amount payable to the Respondent and stopped making payment to Respondent No.1 Operational Respondent No. 1 had initiated the proceedings under Section 9 of the I&B Code for alleged unpaid dues arising out of the services performed under the „MTSA‟ between the Appellant and the Respondent. As per the operational creditor Respondent No.1‟s claim in the Section 9 Application a total of Rs.1 45 99 236 Principal Rs.1 25 63 786 and Rs.20 35 450 calculated @ 24% p.a.] was due from the Corporate Debtor for services performed by the Operational Creditor for a period from 01st January 2018 to 20th May 2019. It is contented by the Appellant that there were various email communication and telephonic conversations held between the Appellant and the Respondent No.1 even after filing of the Application by the Respondent No.1 before the Adjudicating Authority. However Respondent No.1 Operational Creditor never communicated Appellant about the filing of the petition U S 9 of the Code. It is submitted on behalf of the Appellant that there was a plausible pre existing dispute between the parties which was not brought to the notice of the Adjudicating Authority. Since the Appellant was not aware of the proceedings they could not appear before the Adjudicating Authority Company Appeal(Insolvency) No. 14619 and an ex parte impugned order has been passed. The corporate insolvency proceeding started against the Appellant corporate Debtor. 10. The Respondent in his reply submitted that the Company Appeal filed by the Appellant is devoid of any merit and as such liable to be dismissed. It is submitted that the Appeal is liable to be dismissed on the ground that the same is filed beyond 30 days from the date of passing of the impugned order which is beyond the statutory period as prescribed under Section 61(2) of the I&B Code. 12. The Respondent No.1 further submits that the Appellant had the sufficient knowledge of initiation of proceedings under Section 9 of the I&B Code against him by admitting the receiving of Demand notice sent to him and further when the Respondent No.1 sent a copy of Application in Form 5 filed under Section 9 of the I&B Code. The service on the corporate office of the Appellant has been proved by the Affidavit of Service containing tracking report of successful delivery of the same. 13. The Respondent No.1 Operational Creditor further submits that the Adjudicating Authority based on the affidavit of service and other documents filed with the petition regarding service of notice passed an order to proceed ex parte against the Appellant as there was no representation from the Corporate Debtor despite substituted service of notice through the publication of notice in newspapers. Company Appeal(Insolvency) No. 14619 14. Respondent No.1 contends that from a bare perusal of the contents of Appeal and the material placed on record it is sufficiently established that till date the Appellant has not disputed even a single invoice or the amounts therein amongst the total invoices raised by Respondent No.1 operational creditor. 15. Further Respondent no.1 denies that at the time of entering into the contract the Appellant was assured by Respondent No. 1 that there would be 40% of sales contribution from their side. 16. The Respondent No.1 submits that it was pointed out by the Respondent to the Appellant that due to Appellants failure to provide the working capital as agreed under the Agreement salaries of the employees could not be paid on time and resultantly a lot of competent people resigned from the organization. 17. Further Respondent No.1 Operational Creditor denies of posting wrong revenue on barter ledger since the Hotel started its commercial operations to inflate the income to increase their fee share and to hide its under performance and violation of the conditions of the Agreement. Regarding the allegation of issuance of post dated cheques of Rs. Seventy three Lakhs to itself without informing the Appellant it is contended that the Appellant is hiding the fact from this Tribunal. Respondent No.1 argued that the Appellant was informed of the post dated cheques and further shared cheque sheet showing details of the cheques issued by the Respondent No.1. Company Appeal(Insolvency) No. 14619 18. The Respondent No.1 Operational Creditor submitted and denied that as per the Agreement all the operating expenses including taxes were to be discharged by the Respondent No.1. It has never been agreed between the parties that the Respondent No.1 shall discharge the liabilities of payment of taxes. It is pleaded that even the word “tax” find no mentioned in the said perused the record. 19. Heard the arguments of the Learned Counsel for the parties and 20. The Respondent contends that the Appeal is liable to be dismissed on the ground that the same is filed beyond 30 days from the date of passing of the impugned order which is beyond the statutory period as prescribed under section 61(2) of the I&B Code. The impugned order dated 14th November 2019 and Appeal is filed on 05.12.2019 which within 30 days from the date of order. Thus Appeal is filed within the statutory period of Limitation as prescribed under Section 61(2) of the Code. 21. The Learned Counsel for the Appellant submits that the impugned order is liable to be set aside on the sole premise of the failure of compliance with the service procedure prescribed under Rule 5 of the Insolvency and Bankruptcy Rules 2016. It is submitted that the prescribed mode of service as per Rule 6(2) is a registered post or speed post. The publication of notice is not a prescribed mode of service and hence impugned order is liable to be set aside on this ground. It is further submitted that registered notice issued against the Company Appeal(Insolvency) No. 14619 Corporate Debtor was returned with the postal remarks „want of sufficient address‟. In such a situation Respondent No.1 was not stopped from serving the Corporate Debtor via email. Learned Counsel for the Operational Creditors submits that as per Clause of sub rule of Rule 5 of the Insolvency and Bankruptcy Application to Adjudication Authority) Rules 2016 the demand notice or the copy of an invoice demanding payment may be delivered to the Corporate Debtor at the registered office by hand registered post or speed post with acknowledgement due or by electronic mail service to a Whole Time Director of the Corporate Debtor. It is submitted that a demand notice dated 21st May 2019 was sent to the Appellants registered office as well as the Corporate Office. However the demand notice dated 21st May 2019 was returned with endorsement “insufficient address”. Further a copy of the demand notice was also sent to the corporate address of the Appellant and the same has been successfully delivered. Lastly in compliance with clause b) of sub rule of Rule 5 of the above Rules copy of the demand notice dated 21st May 2019 was also sent to the Appellant vide email dated 22nd May 2019. The Operational Creditor has annexed the xerox copy of an email dated 22nd May 2019 which shows that demand notice was sent to Corporate Debtor through an email dated 22nd May 2019 at 2:49 pm. In the circumstances it is clear that the Appellant was having sufficient knowledge of the demand notice issued under Section 8 of the I&B Code. 23. The Learned Counsel for the Appellant has filed the copy of the order sheets of the Adjudicating Authority dated 09th July 2019 and dated 01st Company Appeal(Insolvency) No. 14619 August 2019. It appears that on 09th July 2019 after filing of the petition under Section 9 of the Code the Adjudicating Authority passed an order for issuance of notice against the Corporate Debtor. After that on 01st August 2019 the Adjudicating Authority passed an order “Ld. Counsel for the Operational Creditor appear. Corporate Debtor could not be served with notice for reason of insufficient address. Operational Creditor to publish notice an newspaper one English and one vernacular having wide circulation in the area where the Registered Office of the Corporate Debtor situated and file affidavit in reply service of notice. Matter to appear for further consideration on 20.08.2019.” verbatim copy) 24. Thus it is clear that the Court notice issued against the Corporate Debtor could not be served on account of insufficient address after that the Adjudicating Authority passed an order of publication of notice in the newspaper. Based on the publication of notice in the newspaper service was held sufficient and the Court passed an order to proceed the case ex parte against the Corporate Debtor. Thus it is clear that before the publication of notice in the newspaper no effort was not made for serving the notice through email. 25. The Hon‟ble Supreme Court in case of Neerja Realtors Ltd. Vs. Janglu2018 SCC 649 has held that „for ordering substituted service the Court is required to be satisfied that there is reason to be read that Defendant is keeping out of the way for the purpose of avoiding service or for any other Company Appeal(Insolvency) No. 14619 reason the summons cannot be served in an ordinary way. Thus while making that Order Court must apply its mind to requirements under Order 5 Rule 20 of CPC and indicate in its order and due consideration of provisions contained in Order 5 of Rule 20.‟ In the present case the notice issued against the Corporate Debtor returned unserved because of „insufficient address‟. After that without exploring the possibility of service by other modes like email the Adjudicating Authority passed the order for substituted service by publication of notice in the newspaper. In such circumstances passing of an order for an ex parte hearing against the Corporate Debtor based on substituted service cannot be held proper in the light of the law laid down by Hon‟ble Supreme Court in the Neerja RealtorsLtd(Insolvency) No. 14619 1 Company Appeal(Insolvency) No. 14619 1 Company Appeal(Insolvency) No. 14619 1 Company Appeal(Insolvency) No. 14619 1 28. Admittedly in this case the demand notice dated 22nd March 2019 in Form 3 was issued against the Corporate Debtor by registered post which could not be served on account of insufficient address. After that the demand notice dated 21st May 2019 in Form 3 was again sent through Company Appeal(Insolvency) No. 14619 1 speed post. On perusal of the email dated 14th July 2018 it appears that the Corporate Debtor objected to „the posting of wrong revenue on barter ledgers‟. It also appears from a perusal of email correspondence dated 17th October 2018 that the Corporate Debtor objected to releasing post dated cheque of Rs.73 lakhs without keeping it informed to the Corporate Debtor. It is also stated in the email that management fees will be paid after the barter reconciliation issue is resolved. By perusal of email communication dated 17th January 2019 it appears that dispute was raised regarding the quality of services. On perusal of email dated 14th March 2019 it appears that the Corporate Debtor raised the issue regarding service rendered by the Operational Creditor. It also shows that the Corporate Debtor informed the operational Creditor of taking over the complete management in its own hands because of being dissatisfied with the services rendered by the Operational Creditor. All these correspondences are before issuance of demand notice. 29. Looking to such material above it is quite clear that there was a pre existing dispute regarding the operation of management and services provided by the Respondent No.1 before the issuance of the demand notice dated 21.05.2019 under Section 8 of the I&B Code. 30. The definition of the word dispute provided under the Code was well elaborated and explained by Hon‟ble Supreme in the case of 2018(1)SCC 353 Mobilox Innovation Pvt Ltd vs. Kirusa Software Pvt Ltd in the following words: Company Appeal(Insolvency) No. 14619 1 Para 40 “It is clear therefore that once the operational Creditor has filed an application which is otherwise complete the adjudicating authority must reject the Application under S.9(5)(2)(d) if notice of dispute has been received by the operational Creditor or there is a record of dispute in the information utility. It is clear that such notice must bring to the notice of the operational Creditor the “existence” of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the parties. Therefore all that the adjudicating authority is to see at this stage is whether there is a plausible contention which requires further investigation and that the “dispute” is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain 9 Company Appeal AT)(Insolvency) No.542 2020 from the chaff and to reject a spurious defence which is mere bluster. However in doing so the Court does not need to be satisfied that the defence is likely to succeed. The Court does not at this stage examine the merits of the dispute except to the extent indicated above. So long as a dispute truly exists in fact and is not spurious hypothetical or illusory the adjudicating authority has to reject the Application.” The intent of Legislature is very vital for interpreting any law which can be well deduced from the words of Section 8(2)(a) of I&B Code „existence of a dispute if any‟. It can be easily inferred that dispute shall not be limited to instances specified in the definition as provided under Section 5(6) as it has far arms apart from pending Suit or Arbitration as provided Under Section 5(6) of IBC. The IBC is not a substitute for a recovery forum. Section 9 of the IBC makes it very clear for the Adjudicating Authority to admit the application “if no notice of dispute is received by the Operational Creditor and there is no record of the dispute in the information utility.” Whereas on the other hand Section 9 also states that the Adjudicating Authority shall reject Company Appeal(Insolvency) No. 14619 1 the Application so filed “if the Operational Creditor has received a notice of a dispute from the Corporate Debtor. Thus it is clear that once an operational creditor has filed an application which is otherwise complete the Adjudicating Authority must reject the Application if notice of dispute has been received by the operational Creditor or there is a record of dispute in the information utility the Adjudicating Authority is to see whether there is a plausible contention which requires further investigation and the “dispute “is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is mere bluster.” emphasis in bold supplied) In the present case it is crystal clear that there was a pre existing dispute even though the Adjudicating Authority admitted the Application for initiation of Corporate Insolvency Resolution Process by the impugned 32. Thus the Appeal is allowed and the impugned order dated 14th November 2019 passed by the Adjudicating Authority National Company Law Tribunal in CP No.62 CTB 2019 is set aside. In effect the order passed by the Adjudicating Authority appointing Interim Resolution Professional declaring moratorium and all other order(s) passed by the Adjudicating Authority pursuant to impugned order and actions taken by „the Resolution Professional „is declared illegal and are set aside. The application preferred by the respondent No.1 under Section 9 of the I&B Code is dismissed. The Adjudicating Authority will now close the proceeding. Company Appeal(Insolvency) No. 14619 1 33. The Adjudicating Authority will fix the fee of Interim Resolution Professional „for the period he has functioned. The Appeal is allowed with the observation above and direction there shall be no order as to cost. NEW DELHI 23rd SEPTEMBER 2020 Justice Jarat Kumar Jain] MemberBalvinder Singh] MemberV. P. Singh] MemberCompany Appeal(Insolvency) No. 14619 1

The cooling off period in mutual consent divorce can be waived by the Court under special circumstances: High Court of Delhi

The divorce, being one of mutual consent, the parties cannot be put to such grave inconvenience due to the action of the Family Court which has failed to pass orders on the first motion. This was held in KAVITA MALIK v. STATE OF NCT OF DELHI[W.P.(C) 3922/2021 & CM APPL. 11792/2021] in the High Court of Delhi by the single bench consisting of JUSTICE PRATHIBA M. SINGH. Facts are that the petitioner had filed the first motion petition for divorce by mutual consent owing to the lockdown, physical hearing was not held. The statements of the parties were recorded and the order was passed to file the physically signed copies of the statements. The physical copies were filed within a period of two days duly verified by the respective counsels for the parties and no intimation was given by the Court that the first motion is not passed, all parties were under the impression that the order on the first motion was passed. When the second motion was taken up and objections were raised by the Court that the certified copy of the order on the first motion was not filed. Thus the current petition has been filed. The counsel for the petitioner contended the order specifically recorded that the joint statement of the Petitioners had been recorded. The physical record also has signed copies of the statements by both parties, duly verified by both the counsels for the parties as well. There is no explanation as to why the order on the first motion considering the fact that the physical copy of their statement was already signed. The said order has never been passed even after almost 8 months delay, the parties had moved for waiver of the cooling-off period, which too could not happen. The Court made reference to the judgment of Apex court in  Amardeep Singh v. Harveen Kaur., wherein the court had observed that “Applying the above to the present situation, we are of the view that where the court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13-B(2), it can do so after considering the following: (i) the statutory period of six months specified in Section 13-B(2), in addition to the statutory period of one year under Section 13-B(1) of separation of parties is already over before the first motion itself;…(iii) the parties have genuinely settled their differences including alimony, custody of the child or any other pending issues between the parties.” The Court also made reference to the judgment of Apex court in Devinder Singh Narula v. Meenakshi Nangia, wherein the court observed that “It is only on account of the statutory cooling off period of six months that the parties have to wait for a decree of dissolution of marriage to be passed.”

IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(C) 3922 2021 & CM APPL. 11792 2021 KAVITA MALIK ..... Petitioner Through: Ms. Juhi Arora Advocate. Date of decision: 16th April 2021. STATE OF NCT OF DELHI ..... Respondent Through: Mr. Sumit Jidani Advocate for R 1 M 9810664300) JUSTICE PRATHIBA M. SINGH Prathiba M. Singh J.This hearing has been done through Video Conferencing. The present petition has been filed by Ms. Kavita Malik who was married to Mr. Amit Malik on 8th February 1997. Due to various reasons the parties did not wish to continue with the marriage and accordingly they agreed for dissolution of their marriage by mutual consent. A Memorandum of Understanding was arrived at between the parties on 30th November 2019 by which various terms and conditions were agreed upon by the parties. The first motion petition for divorce by mutual consent was filed on 11th March 2020. However owing to the lockdown physical hearing was not held in the first motion. The Family Court thereafter listed the matter for 20th July 2020 on which date the statements of the parties in the first motion were recorded and the following order was passed: W.P.(C) 3922 2021 “ Efforts for reconciliation have been made if the parties can reside together but both the petitioners have submitted that they cannot reside together and have mutually and amicably decided to part ways to take divorce. Considered. Joint statement of both the petitioners have been recorded separately and both the petitioners have been identified by their counsel. Both the parties are directed to file their original documents and also to submit the signed copy of their statements recorded today as per the directions of the Hon ble High Court after the physical court functioning. Be put up for consideration further proceedings statements and Ld. counsel for the Petitioner submits that on the said date the Family Court had directed the Petitioner after recordal of the statements to file the physically signed copies of the statements. According to her as per the usual practice in the family courts the order on first motion was to be passed on the file upon filing of physical copies. Since the physical copies were filed within a period of two days duly verified by the respective counsels for the parties and no intimation was given by the Court that the first motion is not passed all parties and counsels were under the impression that the order on first motion was passed. On the basis of this understanding the parties through their counsels filed On 17th November 2020 the Petitioner moved an application seeking waiver of the cooling off period of six months in terms of the judgment of the Supreme Court in Amardeep Singh v. Harveen Kaur 8 SCC 746. In the application for second motion an averment was made to the following effect: W.P.(C) 3922 2021 That in terms of the settlement between the parties the first motion divorce petition was filed in 17 03 2020 and the same allowed by the Hon’ble Court vide order dated 20 07 2020. A copy of Order Dated 20 07 2020 is annexed herewith and marked as ANNEXURE P 5.” The order on the first motion was to be Annexure P 5 in the second motion application. Instead of filing the order the application for certified copy of the order on first motion was annexed. The parties however never received the order on the first motion. The second motion was listed on 21st November 2020 however the matter continued to be adjourned from time to time. Finally on 10th March 2021 the second motion was taken up and objections were raised by the Court that the certified copy of the order on the first motion was not filed. The Petitioner applied for the verified copy of the order on the first motion but was not supplied the same. She accordingly re applied for obtaining a copy of the said order. Finally on 16th March 2021 it was realised that a certified copy could not be issued as the order on the first motion itself was not passed. The grievance of the Petitioner is that the Petitioner is a 45 year old lady who had entered into a Memorandum of Understanding with her husband and the various terms and conditions which were to be abided by the parties were given effect to. Both parties are living separately since 2nd June 2018 but are being forced to continue their marriage. All future plans of the parties have been put on hold and these facts have not been appreciated by the Family Court which has acted with complete callousness in not recording the order on the first motion. W.P.(C) 3922 2021 Vide order dated 24th March 2021 this Court had called for the lower court record including the physical record. The physical record has been sent to the Court. A perusal of the physical record shows that the matter was taken up by Ms. Barkha Gupta Judge Family Court Rohini District New Delhi since inception i.e. 18th March 2020 as also on 20th July 2020. The order of 20th July 2020 specifically records that the joint statement of the Petitioners have been recorded. The physical record also has signed copies of the statements by both parties duly verified by both the counsels for the parties as well. It is completely inexplicable as to why the order on the first motion was not passed and whether there was any formality to be completed by the parties considering the fact that the physical copy of their statement was already signed. 10. Since 20th July 2020 till March 2021 the parties have not been able to obtain a copy of the said order due to the fact that the said order has never been passed. Now after almost 8 months the precious time of the parties has been lost and the clock is sought to be set back as the matter has been listed for orders on the first motion tomorrow i.e. 17th April 2021. The parties have in fact moved for waiver of the cooling off period which shows that they had expressed urgency in the orders being passed expeditiously. 11. This Court has perused the judgments of the Supreme Court in Amardeep Singh as also Devinder Singh Narula v. Meenakshi Nangia 8 SCC 580. The legal position on the waiver of the cooling off period of six months as also the purpose of filing of the first motion and the second motion has been settled by the Supreme Court in these two judgements. The relevant paragraphs of the said judgments are set out herein below: W.P.(C) 3922 2021 Amardeep Singh v. Harveen Kaur 2017) 8 SCC 746 “16. We have given due consideration to the issue involved. Under the traditional Hindu Law as it stood prior to the statutory law on the point marriage is a sacrament and cannot be dissolved by consent. The Act enabled the court to dissolve marriage on statutory grounds. By way of amendment in the year 1976 the concept of divorce by mutual consent was However Section 13 B(2) contains a bar to divorce being granted before six months of time elapsing after filing of the divorce petition by mutual consent. The said period was laid down to enable the parties to have a rethink so that the court grants divorce by mutual consent only if there is no chance for reconciliation. 17. The object of the provision is to enable the parties to dissolve a marriage by consent if the marriage has irretrievably broken down and to enable them to rehabilitate them as per available options. The amendment was inspired by the thought that forcible perpetuation of status of matrimony between unwilling partners did not serve any purpose. The object of the cooling off period was to safeguard against a hurried decision if there was otherwise possibility of differences being reconciled. The object was not to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation. Though every effort has to be made W.P.(C) 3922 2021 there are chances of to save a marriage if there are no chances of reunion and rehabilitation the Court should not be powerless in enabling the parties to have a better option. 18. In determining the question whether provision is mandatory or directory language alone is not always decisive. The court has to have the regard to the context the subject matter and the object of the provision. This principle as formulated in Justice G.P. Singh s Principles of Statutory Interpretationhas been cited in Kailash v. Nanhku4 SCC 480] as follows:“34. … ‘The study of numerous cases on this topic does not lead to formulation of any universal rule except this that language alone most often is not decisive and regard must be had to the context subject matter and object of the statutory provision in question in determining whether the same is mandatory or directory. In an oftquoted passage Lord Campbell said: “No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to be considered.”’”“‘For ascertaining legislature’ points out Subbarao J. ‘the court may consider inter alia the nature and design of the statute and the consequences which would follow from construing it the one way or the other the impact of other provisions whereby the necessity of complying with the provisions in question is avoided the circumstances namely statute provides for a contingency of the non the whole scope of intention of the statute the real W.P.(C) 3922 2021 it mandatory compliance with the provisions the fact that the non compliance with the provisions is or is not visited by some penalty the serious or the trivial consequences that flow therefrom and above all whether the object of the legislation will be defeated or furthered’. If object of the enactment will be defeated by holding the same directory it will be construed as mandatory whereas if by inconvenience will be created to innocent persons the object of without very much enactment the same will be construed as directory.”19. Applying the above to the present situation we are of the view that where the court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13 B(2) it can do so after considering the following: i) the statutory period of six months specified in Section 13 B(2) in addition to the statutory period of one year under Section 13 B(1) of separation of parties is already over before the first motion itself for mediation conciliation including efforts in terms of Order 32 A Rule 3 CPC Section 23(2) of the Act Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts the parties have genuinely settled their iii) differences including alimony custody of child or any other pending issues between the parties iv) The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver. If the above conditions are satisfied the the waiting period will only prolong their W.P.(C) 3922 2021 waiver of the waiting period for the second motion will be in the discretion of the court concerned. 20. Since we are of the view that the period mentioned in Section 13 B(2) is not mandatory but directory it will be open to the court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation. 21. Needless in conducting such proceedings the court can also use the medium of videoconferencing and also permit genuine representation of through close relations such as parents or siblings where the parties are unable to appear in person for any just and valid reason as may satisfy the court to advance the interest of justice.” the parties to say Devinder Singh Narula v. Meenakshi Nangia 2012) 8 SCC 580 “2. Section 13 B itself provides for a cooling off period of six months on the first motion being moved in the event the parties change their minds during the said period. Accordingly after the initial motion and the presentation of the petition for mutual divorce the parties are required to wait for a period of six months before the second motion can be moved and at that point of time if the parties have made up their minds that they would be unable to live together the court after making such inquiry as it may consider fit grant a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree. 12. It is quite clear from the materials on record that although the marriage between the parties was solemnised on 26 3 2011 within 3 months of W.P.(C) 3922 2021 the marriage the petitioner filed a petition under Section 12 of the Hindu Marriage Act 1955 for a decree of nullity of the marriage. Thereafter they have not been able to live together and lived separately for more than 1 year. In effect there appear to be no marital ties between the parties at all. It is only the provisions of Section 13 B(2) of the aforesaid Act which are keeping the formal ties of marriage between the parties subsisting in name only. At least the condition indicated in Section 13 B for grant of a decree of dissolution of marriage by mutual consent is present in the instant case. It is only on account of the statutory cooling off period of six months that the parties have to wait for a decree of dissolution of marriage to be Both judgments make it clear that the time period of six months for cooling off can be waived by the Court under special circumstances. Moreover in the present case the parties are living apart from 2018 and have also finally settled their disputes. There is thus no reason as to why the Family Court did not pass orders on the first motion after recording the statements of the parties and after the physically signed copy was placed on record. Simply adjourning the matter on the said date i.e. 20th July 2020 without passing orders on the first motion has resulted in turning the clock back for the Petitioner. 12. The divorce being one of mutual consent the parties cannot be put to such grave inconvenience due to the action of the Family Court which has failed to pass orders on the first motion. W.P.(C) 3922 2021 13. Ms. Juhi Arora ld. Counsel appears for the Petitioner and submits that as per her information in the Family Court there are several cases where orders on the first motion have not been passed. 14. Under these circumstances and owing to the settled legal position as laid down by the Supreme Court in the aforementioned two judgments the following directions are issued: the present Presiding Officer in the Family Court shall record his satisfaction in respect of the statement recorded by the parties which are already on record. upon the present Presiding Officer recording his satisfaction orders on the first motion shall be passed by the Family Court. Since passing of orders on the first motion is a consequence of the statement recorded upon recordal of the satisfaction in order to ensure that the parties are not put to any further inconvenience the order on the first motion would date back to 20th July 2020. Insofar as the second motion is concerned once the order on the first motion which shall date back to 20th July 2020 is passed by the present Presiding Officer the Court would proceed to pass orders on the second motion in accordance with law. 15. The ld. Registrar General shall look into the issue in respect of other similar cases which may be pending before the Family Courts which are awaiting orders on first motion after statements of parties have been recorded and file a report in this regard for appropriate orders. 16. The petition is disposed of in the above terms. All pending applications are also disposed of. W.P.(C) 3922 2021 APRIL 16 2021 17. List for receiving of the report on 1st July 2021. Let the physical copy of the lower court record be sent back. PRATHIBA M. SINGH J. W.P.(C) 3922 2021

Intricacies in the process of adoption in India – Bombay High Court

Adoption is a miraculous and a kind act of an individual which protects the life of another human being. The intention in itself plays a major role in every sector. Sometimes with a good intention people adopts, however sometimes with a wrongful intention which ultimately results in a criminal offense. Thus the process of adoption deals with a lot of intricacies, one such case is being dealt with by the Bombay High Court. In the case of Kripal Amrik Singh & Ors. V. State of Maharashtra & Anr., [CRIMINAL WRIT PETITION NO.143 OF 2021], the facts of the case initiates when the is a writ petition seeking a writ of habeas corpus and a direction to respondent Nos.1 and 2 to release minor child – “Bhavreet @ Bhavnoor Kaur” and for handing over her custody to the petitioners. The petitioners say that they adopted the said child when she was about two weeks old and that the actions taken against them by respondent Nos. 1 and 2 were not justified in the facts and circumstances of the case. The important facts, in this case, are that the aforementioned girl-child was born on January 8, 2019. When it was discovered that the biological mother of the child, respondent No. 3 herein, was unable to care for the girl-child, notice was given to Childline, a non-governmental agency. In response to this notification, respondent No.2 – Child Welfare Committee (“CWC”), established under the Juvenile Justice (Care and Protection of Children) Act, 2015 (“Juvenile Justice Act”), received a letter dated 17/01/2019 on behalf of the NGO – Childline. The fact that respondent No. 3 was unwilling to care for the child was stated in this letter, and she had agreed to either place the girl-child for adoption or keep her in an Ashram. The biological mother, respondent No. 3, was also mentioned in the letter as having the possibility of selling the girlchild. Respondent No.2-CWC took notice of the matter after receiving the written correspondence and ordered respondent No.3 to appear before it with the girl-child once a month. Respondent No.2-CWC also directed the aforementioned NGO to supervise respondent No.3’s activities by visiting her once a month. However, it appears that on January 22, 2019, respondent No.3 signed a notarized Adoption Deed in which the girl-child was allegedly given in adoption to the petitioners herein. The girl-child was given to the petitioners on this basis, and she was taken to Punjab. The petitioner claimed that by signing the Adoption deed, they assumed responsibility for the boy. It was argued that the conditions for a legal adoption under the Hindu Adoption Act were entirely met in the facts and circumstances of the case, and that, as a result of Section 56(3) of the Juvenile Justice Act, Section 80 thereof did not apply in the case of the petitioners, and that, as a result, the filing of the FIR against petitioner No. 1 was wholly inappropriate. It was further submitted that once it was found that the petitioners had validly adopted the girl-child, there was no jurisdiction with respondent No.2–CWC, to have proceeded to take away the custody of the girl-child. The respondent No.2 i.eCWC argued that the provisions of the aforementioned Act squarely applied in the present case, especially because the girl-child in question was a child in need of care and security, as specified by Section 2(14) of the Juvenile Justice Act. Respondent No. 3, the biological mother of the boy, voiced her opinion shortly after the birth of the girl-child, prompting the NGO and its members to report the matter to respondent No. 2-CWC. The reports obtained by respondent No.2-CWC from the NGO detailed respondent No.3’s refusal to care for the boy, showing that the child was obviously a child in need of care and protection as described in the above-mentioned section of the Juvenile Justice Act. The court had however held that “In this backdrop, we are of the considered opinion that since the girl-child, in the facts and circumstances of the present case, is in need of care and protection, which respondent No.2-CWC is providing in terms of the provisions of the Juvenile Justice Act, the prayers made on behalf of the petitioners cannot be granted. We have arrived at this conclusion keeping the best interest of the girlchild as being of paramount significance. Hence, we find that there is no merit in the writ petition. Accordingly, the writ petition is dismissed.” “We appreciate the sincere efforts taken by Mr. Karansingh B. Rajput, the learned appointed advocate for respondent No.2-CWC and we quantify his fees at Rs.10,000/-.”

on 18 03 2021 on 19 03 1 18 99 Cri WP 143.21J.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYCRIMINAL APPELLATE JURISDICTIONCRIMINAL WRIT PETITION NO.143 OF 20211.Kripal Amrik SinghR at Shri Guru Singh Sabha Gurudwara Four Bungalows AndheriMumbai 400 053.]]]]2.Balwinder Kaur Kripal SinghSabharwal R at Shri Guru SinghSabha Gurudwara FourBungalows AndheriMumbai 400 053.]]]]] … PetitionersVersus1.The State of Maharashtra]2.Child Welfare Committee MumbaiSuburban District having office at ChemburChildren’s Home Campus V.N.Purav Marg Opp. AnushaktiNagar Bus Depot Mankhurd Mumbai 400 088.]]]]]]]3.Durgamiti Dharmendra BahadurSaha @ Heera SahaR at 2 401 Amber Building Suresh Nagar SRA LokhandwalaRoad in front of RTO Office FourBungalows AndheriMumbai 400 053.]]]]]]] … RespondentsAJN on 18 03 2021 on 19 03 2 18 99 Cri WP 143.21J.odt…Mr. Raja Thakare senior counsel with Mr. Siddharth Jagushte i bMr. Akash Kavade for the petitioner. Mr. J.P. Yagnik A.P.P. for the State.Mr. Karansingh B. Rajput for respondent No.2. Ms. Aishwarya Sharma for respondent No.3.Ms. Rashmi Kamble CWC Member present in court.… CORAM: S.S. SHINDE & MANISH PITALE JJ. RESERVED ON : 01ST MARCH 2021.PRONOUNCED ON: 18TH MARCH 2021.JUDGMENT: J.odtgirl child was born on 08 01 2019. When it was found that thebiological mother of the child i.e. respondent No.3 herein was notwilling to take care of the girl child an intimation was given to aNon Governmental Organizationviz. Childline.Pursuant to such intimation a letter dated 17 01 2019 was sent onbehalf of the NGO Childline to respondent No.2 Child WelfareCommitteeconstituted under the Juvenile JusticeAct 2015J.odt4.On 14 02 2019 when persons from the said NGOChildlinevisited the house of respondent No.3 as per the direction given byrespondent No.2 CWC it was found that the girl child was givenaway by respondent No.3 to the petitioners for which respondentNo.3 had received an amount of Rs.20 000 . In this situation theNGOChildline sent written communication to respondent No.3to take appropriate action in the matter whereupon respondentNo.2CWC immediately directed the NGOChildline to report thematter to the police. Respondent No.2 CWC also sought thepresence of respondent No.3 before it but respondent No.3 did notrespond. 5.It is in this backdrop that on 18 06 2019 an FIR came to beregistered at Amboli Police Station being C.R. No.1119against petitioner No.1 and respondent No.3 for offence underSection 80 of the Juvenile Justice Act.6.On 28 06 2019 the girl child was produced beforerespondent No.2CWC by the police and respondent No.3 was alsopresent. Respondent No.3 admitted before respondent No.2 CWCthat she had received an amount of Rs.40 000 from the petitionersfor handing over the girl child. Respondent No.2CWC in thesecircumstances directed the girl child to be handed over to “VatsalyaTrust” a Special Adoptive Agency. AJN on 18 03 2021 on 19 03 5 18 99 Cri WP 143.21J.odt7.Respondent No.3 filed an application before respondentNo.2CWC for custody of the girl child. Petitioner No.1 also filedapplications for meeting the girl child and for celebrating herbirthday. Respondent No.2 CWC directed the NGO to submit aSocial Investigation Report as contemplated under the JuvenileJustice Act which was submitted on 24 12 2019. In this report itwas stated that respondent No.3 had initially stated that she wasimpregnated by her friend. Later she stated that she was raped byher employer. Respondent No.3 stated that she had handed overthe girl child to the petitioners out of goodwill and that they hadgiven her financial help of about Rs.20 000 for the treatment andgroceries. The said report recorded the fact that the petitionersrelied upon the aforesaid notarized Deed of Adoption for theirclaim in respect of the girl child. It was observed in the report thatrespondent No.3 was possibly suffering from mental illness. 8.On 03 01 2020 respondent No.2CWC passed an orderrejecting the aforesaid applications of petitioner No.1 andrespondent No.3. Respondent No.3 filed a second applicationseeking custody of the girl child before respondent No.2 CWC wherein she claimed for the first time that she was physically andfinancially capable of taking care of the girl child. Petitioner No.1addressed a letter to respondent No.2 expressing that he had noobjection to the custody of the girl child being given to respondentAJN on 18 03 2021 on 19 03 6 18 99 Cri WP 143.21J.odtNo.3. In the interregnum the petitioners had filed a writ petitionbefore this court seeking custody of the girl child and at this stage petitioner No.1 expressed his willingness to withdraw the said writpetition. On 22 12 2020 this court passed an order in the aforesaidwrit petition being Writ Petition No.39919 permitting thepetitioners to withdraw the writ petition with liberty to file freshpetition. Thereafter the petitioners filed the present writ petitionon 02 02 2021 for a writ of habeas corpus and a direction torespondent No.2CWC to handover custody of the girl child tothem.9.In the present writ petition the petitioners have relied uponthe notarized Adoption Deed executed in their favour byrespondent No.3. It was stated that the petitioners had notcommitted any offence under Section 80 of the Juvenile Justice Actand to support this contention they relied upon Section 56(3)thereof which states that nothing in the Juvenile Justice Act shallapply to adoption of children made under the provisions of theHindu Adoption and Maintenance Act 1956J.odtpetition. By order dated 18 02 2021 advocate was appointed torepresent respondent No.2 CWC and the petitioners were allowedto have access to the girl child through video conferencing between4.00 p.m. and 6.00 p.m. on 24 02 2021. Thereafter the writpetition was finally heard on 01 03 2021. 11.Mr. Raja Thakare learned senior counsel appearing on behalfof the petitioners submitted that the writ petition deserved to beallowed because in the present case respondent No.3 i.e. thebiological mother of the girl child had willingly given the child inadoption to the petitioners by executing the aforesaid AdoptionDeed. It was submitted that the requirements for a valid adoptionas per the provisions of the Hindu Adoption Act were fully satisfiedin the facts and circumstances of the present case and therefore byoperation of Section 56(3) of the Juvenile Justice Act Section 80thereof did not apply in the case of the petitioners and therefore the registration of FIR against petitioner No.1 was whollymisplaced. It was further submitted that once it was found that thepetitioners had validly adopted the girl child there was nojurisdiction with respondent No.2CWC to have proceeded to takeaway the custody of the girl child. It was submitted that therefore the petition deserved to be allowed and respondent No.2 CWCought to be directed to hand over the custody of the girl child to thepetitioners. In order to support his contention learned seniorcounsel placed reliance on the judgment of the Hon’ble SupremeAJN on 18 03 2021 on 19 03 8 18 99 Cri WP 143.21J.odtCourt in the case of Mst. Param Pal Singh through Father v.National Insurance Company & Ors.112.Mr. Rajput learned counsel appointed to appear on behalf ofrespondent No.2CWC submitted that in the present case theprovisions of the aforesaid Act squarely applied particularly for thereason that the girl child in the present case was a child in need ofcare and protection as defined under Section 2(14) of the JuvenileJustice Act. It was submitted that the documents available on recordincluding the rozanamas of the proceedings before respondentNo.2 CWC clearly demonstrated that the girl child was sold by thebiological mother i.e. respondent No.3 to the petitioners and thatsuch an act could not be covered up on the basis of the saidpurported Adoption Deed. It was submitted that respondent No.2 CWC was clearly empowered to take all necessary steps for thesafety and security of the said girl child who was in need of her careand protection as per the provisions of the Juvenile Justice Act.Learned counsel stressed upon the objects and reasons of theJuvenile Justice Act which pertain to principles and proceduresrequired in the case of children in need of care and protection so asto ensure proper care protection development treatment and socialre integration of such children keeping in view the best interest ofthe children. 1(2013) 3 SCC 409.AJN on 18 03 2021 on 19 03 9 18 99 Cri WP 143.21J.odt13.Learned counsel appearing for respondent No.2 CWC laidmuch stress on the reports submitted by the NGO and theobservations made by the representatives of the NGO regarding thebackground in which respondent No.3 had given birth to the girl child and the manner in which she had accepted money for handingover the said girl child to the petitioners. On this basis it wassubmitted that reliance could not be placed on the notarizedAdoption Deed as proper procedure for adoption of the girl childought to have been undertaken by the petitioners. On this basis itwas submitted that the FIR was correctly registered againstpetitioner No.1 and respondent No.3 and that in the face of suchcriminal proceedings the present writ petition did not deservefavourable consideration. It was also submitted that the girl childcould not be said to be in illegal detention and therefore thepresent writ petition is not maintainable. Learned counsel placedreliance on the judgment of the Hon’ble Supreme Court in the casesof Exploitation of Children in Orphanages in State of Tamil Nadu in Re. v. Union of India & Ors. 2 and S. Vanitha v. DeputyCommissioner Bengaluru Urban District & Ors.314.Ms. Sharma learned counsel appeared on behalf ofrespondent No.3 and supported the contentions raised on behalf ofthe petitioners. We have also heard Mr. Yagnik learned A.P.P.appearing for the State. 2(2017) 7 SCC 57832020 SCC OnLine SC 1023AJN on 18 03 2021 on 19 03 10 18 99 Cri WP 143.21J.odt15.The petitioners in this writ petition are seeking a writ ofhabeas corpus and a consequent direction that the aforesaid girl child be handed over by respondent No.2CWC to them. Such awrit at the behest of the petitioners would be maintainable on thebasis that the custody of the child with respondent No.2CWC isillegal and that they are entitled to custody of the child. In order toreach findings on the said aspect it is necessary to refer to thedocuments on record as also the relevant provisions of the JuvenileJustice Act.16.The documents placed on record particularly the documentsbrought on record by respondent No.2 CWC show that respondentNo.3 i.e. the biological mother of the child immediately after thechildbirth had expressed her opinion that she was not interested intaking care of the girl child. This is evident from the writtencommunications submitted by the NGO to respondent No.2CWCand the visits of the representatives of the NGO. This is asignificant aspect of the present matter because the moment there ismaterial to show that the child is in a situation where her needs arenot likely to be taken care of by the parents such a child is in needof care and protection as defined under the provisions of theJuvenile Justice Act. Section 2(14)(v) of the Juvenile Justice Actreads as follows:AJN on 18 03 2021 on 19 03 11 18 99 Cri WP 143.21J.odt“2. Definitions. In this Act unless the contextotherwise required xxxxxx(14)“child in need of care and protection” means achild xxxxxx(v)who has a parent or guardian and suchparent or guardian is found to be unfit orincapacitated by the Committee or theBoard to care for and protect the safetyand well being of the child or”17.In the present case respondent No.3 i.e. the biological motherof the child had expressed her opinion immediately after the birth ofgirl child leading to the NGO and its representatives reporting thematter to respondent No.2 CWC. The reports sought byrespondent No.2 CWC from the NGO elaborately brought onrecord the unwillingness of respondent No.3 to take care of thechild thereby indicating that the said child was clearly a child inneed of care and protection as defined in the above quotedprovision of the Juvenile Justice Act. Consequently respondentNo.2CWC had the power and responsibility to take necessaryaction in the context of the said girl child. It is for this reason thatthe visits to the house of respondent No.3 were arranged so as toensure that respondent No.3 was taking care of the said child. 18.But on one such visit of representatives of the NGO the factabout respondent No.3 having given away the girl child to thepetitioners stood revealed. Respondent No.3 stated that she hadAJN on 18 03 2021 on 19 03 12 18 99 Cri WP 143.21J.odtgiven away the child and that she had received amounts from thepetitioners. This prima facie appeared to be a case of the child beingsold and therefore respondent No.2 CWC was justified in takingconsequent action in the matter. A perusal of the rozanamas of theproceedings before respondent No.2 CWC show that respondentNo.3 herself stated before respondent No.2 CWC on 28 06 2019that she had received an amount of Rs.40 000 from the petitionersand that she had given the girl child to them. For this reason theaforementioned FIR dated 18 06 2019 came to be registered againstpetitioner No.1 and respondent No.3 under Section 80 of theJuvenile Justice Act. The girl child was taken back from the custodyof the petitioners and she was handed over to Vatsalya Trust whichis a recognized Special Adoptive Agency.19.The petitioners have based their claim on the allegedvoluntarily giving away in adoption of the child by respondent No.3and the consequent “Adoption Deed” executed between the parties.A perusal of the said document dated 22 01 2019 shows that it ismerely a notarized document. It was strenuously contended onbehalf of the petitioners that adoption of the girl child in the factsand circumstances of the present case was absolutely valid and thattherefore the petitioners were entitled to avail of protection underthe specific provision under the Juvenile Justice Act i.e. Section56(3) thereof. The petitioners claimed that the child was adoptedunder the Hindu Adoption Act and that therefore the provisions ofAJN on 18 03 2021 on 19 03 13 18 99 Cri WP 143.21J.odtthe Juvenile Justice Act would not apply to the present case therebyshowing that the entire proceedings before respondent No.2 werenot in accordance with law and that therefore the writ petitionought to be allowed.20.We have considered the aforesaid notarized document purported to be an Adoption Deed as also the contentions raised onbehalf of the petitioners by relying upon Section 56(3) of theJuvenile Justice Act. We find that the said document nowhereindicates that the adoption is under the provisions of the HinduAdoption Act. Nothing is sought to be placed on record to indicatethat the requirements of the Hindu Adoption Act pertaining to avalid adoption were complied with in letter and spirit. It is onlyafter the aforesaid FIR stood registered against petitioner No.1 thatsuch a stand has been taken for the first time before this court. Weare of the opinion that by merely executing a notarized documentpurporting to be an Adoption Deed the petitioners cannot claimthat they have a right to hold custody of the girl child. This isparticularly in the backdrop of the fact that respondent No.3 i.e. thebiological mother of the girl child herself specifically conceded firstly before the representatives of the NGO when they visited herhome on the instructions of respondent No.2 CWC that she hadgiven away the girl child and received Rs.20 000 and secondly when she appeared before respondent No.2 CWC and stated thatshe had received Rs.40 000 from the petitioners and given awayAJN on 18 03 2021 on 19 03 14 18 99 Cri WP 143.21J.odtthe girl child. 21.Although respondent No.3 claimed that the amount wasgiven to her for her treatment and groceries the material on recordindicates that the child was given away to the petitioners inexchange of money. This is particularly so because the NGO hadreported to respondent No.2 CWC on 17 01 2019 itself thatrespondent No.3 was not inclined to take care of the girl child andthat there was necessity to take appropriate steps in the interest ofthe girl child. It is thereafter that on 22 01 2019 the aforesaidpurported Adoption Deed was executed the document was merelynotarized and the girl child was given away by respondent No.3 tothe petitioners upon accepting money from them. These factsclearly indicate that respondent No.2 CWC was indeed justified intaking action in the matter in terms of the Juvenile Justice Act.There is no doubt in our minds that the child was indeed a child inneed of care and protection as defined in Section 2(14)(v) of theJuvenile Justice Act. Respondent No.2 CWC has acted in terms ofthe mandate of the Juvenile Justice Act and in pursuance of theobjects and reasons for enactment of the said legislation which is toensure proper care protection development treatment and socialre integration of such children by keeping the best interest of thechildren in mind. 22.A perusal of the provisions of the Juvenile Justice Act wouldAJN on 18 03 2021 on 19 03 15 18 99 Cri WP 143.21J.odtshow that respondent No.2 CWC under Section 30 of the JuvenileJustice Act is required to ensure proper enquiry in respect of suchchildren who are in need of care and protection to ensure theirsafety and well being. 23.Clausestoof Section 30 enumerate the functionsand responsibilities of respondent No.2 CWC . We are of theopinion that in the present case respondent No.2 CWC acted infurtherance of such functions and responsibilities placed upon itunder the Juvenile Justice Act. Therefore respondent No.2 CWCwas justified in sending the girl child to the Special AdoptiveAgency in this case “Vatsalya Trust”.24.It is relevant to note here that as per Section 1(4) of theJuvenile Justice Act notwithstanding anything contained in anyother law in force the provisions of the said Act shall apply to allmatters concerning children in need of care and protection. Thesaid non obstante clause makes it abundantly clear that therespondent No.2 CWC has acted as per the mandate of law.25.Once we have reached the conclusion that in the present case the girl child was indeed in need of care and protection and thatrespondent No.2 CWC proceeded correctly on that basis itbecomes clear that the order dated 03 01 2020 was passed inexercise of powers of respondent No.2 CWC under the provisionsAJN on 18 03 2021 on 19 03 16 18 99 Cri WP 143.21J.odtof the Juvenile Justice Act. Even otherwise Section 101 of theJuvenile Justice Act provides for appeal that can be filed by anyperson aggrieved by an order passed by CWC. The petitionerscould have proceeded under the said provision if at all they had anygrievance in respect of the said order dated 03 01 2020 passed byrespondent No.2 CWC. Since the order passed by the respondentNo.2 CWC is in accordance with law and pursuant to the said order the girl child is in custody of the CWC it cannot be said that she isin improper or illegal custody. Hence the present writ petition forhabeas corpus must fail.26.Insofar as the judgment on which reliance was placed bylearned senior counsel appearing for the petitioners we find that thesaid judgment of the Hon’ble Supreme Court in the case of Mst.Param Pal Singhis clearly distinguishable on facts. In thesaid case an adopted person was claiming compensation under theprovisions of the Workmen’s Compensation Act 1923 in respect ofthe death of his adoptive father in an incident during the course ofemployment. The Hon’ble Supreme Court held that the adoptedson was entitled to the amount of compensation for the reason thatthe biological father of the said person had filed an affidavit of proofof adoption and he had offered himself for cross examination.Evidence was led on the issue of adoption and it was found that theoral evidence on record proved the ceremony performed when theadoption took place. It becomes clear that in the said case not onlyAJN on 18 03 2021 on 19 03 17 18 99 Cri WP 143.21J.odtwas there an Adoption Deed but there was evidence led before theWorkmen’s Compensation Commissioner Labour Court in theform of documentary and oral evidence to prove the factum ofadoption. In the present case such exercise has not beenundertaken before any competent court or authority and therefore the petitioners cannot rely upon the ratio of the said judgment insupport of their contention. 27.On the other hand learned counsel appearing for respondentNo.2 CWC correctly relied upon the judgments of the Hon’bleSupreme Court in the cases of Exploitation of Children inOrphanagesand S. Vanitha of the JuvenileJustice Act. The Hon’ble Supreme Court has made reference toDirective Principles of State Policy enumerated in the Constitutionof India while emphasizing upon the role of institutions establishedunder the provisions of the Juvenile Justice Act and the manner inwhich courts and all concerned institutions need to give effect to theprovisions of the Juvenile Justice Act. 28.In this backdrop we are of the considered opinion that sincethe girl child in the facts and circumstances of the present case is inAJN on 18 03 2021 on 19 03 18 18 99 Cri WP 143.21J.odtneed of care and protection which respondent No.2 CWC isproviding in terms of the provisions of the Juvenile Justice Act theprayers made on behalf of the petitioners cannot be granted. Wehave arrived at this conclusion keeping the best interest of the girl child as being of paramount significance. Hence we find that thereis no merit in the writ petition. Accordingly the writ petition isdismissed.29.We appreciate the sincere efforts taken by Mr. Karansingh B.Rajput the learned appointed advocate for respondent No.2 CWCand we quantify his fees at Rs.10 000 .30.The High Court Legal Services Committee Mumbai isdirected to pay the said amount to the appointed advocate Mr.Karansingh B. Rajput within four weeks from the date of receipt ofthis order.(MANISH PITALE J.) (S. S. SHINDE J.)AJN

Challenging the Animal Prohibition of Slaughtering Act under confiscating the Commercial vehicle: Ranchi High Court

Sections 4(A) and 4(B) of Jharkhand Bovine Animal Prohibition of Slaughtering Act, 2005, it transpires that there is no provision of confiscation in that Section. This Section speaks Restriction on the report and Permit for report held by Hon’ble Mr Justice Sanjay Kumar Dwivedi in the matters of Mr Prabhat Kumar Sinha v. Mr Prabir Kumar Chatterjee. [Cr.M.P.No. 570 of 2021]. The background of the case started from superior police officers got secret information regarding loaded with cattle is approaching. The information was entered into Station Diary Entry (S.D.E.) and then along with Gasti parties proceeded for verification of the information. The vehicle was stopped by the patrolling party but the driver fled away towards the hilly area after seeing the police. Since it was night hence no independent persons were found therefore in presence of the raiding party, the vehicle was searched in which 16 cows and 4 calves were loaded and accordingly seized and a seizure list was prepared. The petitioner submits that there is no provision of confiscation under the Jharkhand Bovine Animal Prohibition of Slaughtering Act, 2005. Further submits that only provision is under Section 12(3) of the Act whereby it transpires that the vehicle in question can be forfeited to the State Government. In view of Section 12(3) that will happen once the trial concludes the conviction of charged accused. The State submits that the vehicle in question was seized under Sections 4(A) and 4(B) and Sections 12(i) and 12(ii) of Jharkhand Bovine Animal Prohibition of Slaughtering Act, 2005. On perusal of provision of Jharkhand Bovine Animal Prohibition of Slaughtering Act, 2005, it is apparent that there is no provision of confiscation of vehicle or goods as provided under some Acts i.e. Essential Commodities Act and Forest Act. The aforesaid Acts prescribe forfeiture of vehicle particularly under Section 12(3) of Jharkhand Bovine Animal Prohibition of Slaughtering Act, 2005 “Whenever a vehicle is found to have been used in the transportation of Cattle or Beef contravening any provision of this Act the Vehicle shall be forfeited to the State Government.” The Hon’ble Court concluded from the above facts and the settled law, the detention of a vehicle is of no use as it will not only lead to damage and loss of utility of the vehicle but will also cause a loss of revenue to the Government due to non-place of the commercial vehicle. The Court is directed to grant interim custody of vehicle by ordering it to be released in favour of the petitioner on his giving an undertaking on the following terms and conditions: – “1. Petitioner shall furnish an indemnity bond of Rs. Three Lacs Fifty Thousand (Rs. 3.5. Lacs) with two sureties. 2. One of the sureties must be a resident and owner of a commercial vehicle. 3. the petitioner shall not sell, mortgage or transfer the ownership of the vehicle on hire purchase agreement or mortgage or in any manner. 4. Petitioner shall not change or tamper with the identification of the vehicle in any manner. 5. Petitioner shall produce the vehicle as and when directed by the court”.

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 5721 Raj Kumar Yadav aged about 51 years S o Late Dashrath Yadav resident of 97 G.C. Road Titagarh P.O. Titagarh P.S. Titagarh Distt. North 24 ParganasA P Resident of Village Suhiyari P.O. Suhiyari P.S Bhojpur Distt. Bhojpurand then along with Gasti parties proceeded for verification of the information and after reaching village Kulgo waited for the said vehicle. Further at around 03:05 a.m. the aforesaid vehicle was coming which was stopped by the patrolling party but the driver fled away towards hilly area after seeing the police. Since it was night hence no independent persons were found therefore in presence of the raiding party the vehicle was searched in which 16 cows and 4 calf were loaded and accordingly seized and seizure list was prepared. Mr. Prabhat Kumar Sinha learned counsel appearing for the petitioner submits that there is no provision of confiscation under Jharkhand Bovine Animal Prohibition of Slaughtering Act 2005. He further submits that only provision is under Section 12(3) of the Act whereby it transpires that the vehicle in question can be forfeited to State Government. He also submits that in view of Section 12(3) that will happen after once the trial comes to the conclusion of conviction of charged accused. He further submits that vehicle in question is commercial and if it will be allowed to languish in the premise of Police Station it will destroy. In terms of Section 451 of Cr.P.C. also the case of the petitioner is fortified. To buttress his argument he relied upon the case of Mirza Dildar Beg Others reported in 2014 SCC OnLine Jhar 55. He further relied upon the case of Md. Reyazuddin Versus The State of Jharkhand reported in 2014 SCC OnLine Jhar 985. He further relied upon Cr. Rev. No.14016 in the case of Raju Prasad Keshri Versus The State of Per contra Mr. Prabir Kumar Chatterjee learned Spl.P.P. for the State submits that the vehicle in question was seized under Sections 4(A) and 4(B) and Sections 12(i) and 12(ii) of Jharkhand Bovine Animal Prohibition of Slaughtering Act 2005. He further submits that the case of the petitioner is fit to be rejected in view of the order passed by this Court in Cr.M.P No.25013 decided on 22.01.2018 in the case of Nawab Sher Khan Versus State of Jharkhand. He further submits that the Hon’ble Supreme Court has held in the case of State of Madhya Pradesh Versus Uday Singh with analogous cases reported in12 SCC 733 that High Court could not have directed the release of such property in exercise of power under Section 482 of Cr.P.C. On perusal of provision of Jharkhand Bovine Animal Prohibition of Slaughtering Act 2005 it is apparent that there is no provision of confiscation of vehicle or goods as provided under some Acts i.e. Essential Commodities Act and Forest Act. The aforesaid Acts prescribe forfeiture of vehicle particularly under Section 12(3) of Jharkhand Bovine Animal Prohibition of Slaughtering Act 2005 which reads as under: Whenever a vehicle is found to have been used in transportation of Cattle or Beef contravening any provision of this Act the Vehicle shall be forfeited to the State On plain reading of the provision it is clear that the words used Whenever a vehicle is found to have been used........" literally the use of word found in the section connotes that a finding has to be arrived at that the vehicle was used in transportation of cattle or beef in contravention of the provision of the Act. Such finding can only be arrived only after the evidence is brought on record during an enquiry or trial meaning thereby that the charges allegations have to be proved that the vehicle was used in contravention of the provision of the Act whereafter the vehicle shall be forfeited to the State Government. It is not disputed that in the instant case no proceeding has been initiated for forfeiture neither does the Act provide for initiation of confiscation proceeding and the vehicle is lying at the police station without any use in an uncared manner. On plain reading of the above provision it is crystal clear from Whenever a vehicle is found to have been used........") and it further says that the vehicle should be forfeited to the State Government. Meaning thereby once the trial is concluded and the conviction is held by the Trial Court then only the forfeiture of vehicle will come into effect. The vehicle in question is commercial as indicated and this aspect of the matter has been decided by the Hon’ble Supreme Court in the case of Sunderbhai Ambalal Desai Versus State of Gujarat reported in 10 SCC 283. Paragraphs 5 and 17 of the judgment are quoted herein below: "5. Section 451 clearly empowers the court to pass appropriate orders with regard to such property such as: 1) for the proper custody pending conclusion of the inquiry or trial 2) to order it to be said or otherwise disposed of after recording such 3) If the property is subject to speedy and natural decay the dispose of the same. 17. In our view whatever be the situation it is of no use to keep such seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles if required at any point of time. This can be done pending hearing of applications for return of such vehicles." In view of the settled law the detention of the vehicle is of no use as it will not only lead to damage and loss of utility of the vehicle but will also cause a loss of revenue to the Government due to non pliance of the commercial vehicle. In the surrounding facts and circumstances the trial Court is directed to grant interim custody of the pick up van bearing Registration No. BR. 01 GC 4103 by ordering it to be released in favour of the petitioner on his giving an undertaking on the following terms and conditions: i) Petitioner Md. Reyazuddin shall furnish an indemnity bond of Rs. Three Lacs Fifty ThousandOne of the surety must be a resident and owner of a commercial vehicle of District Gumla. iii) that the petitioner shall not sale mortgage or transfer the ownership of the vehicle on hire purchase agreement or mortgage or in any manner. iv) He shall not change or tamper with the identification of the vehicle in any manner. v) He shall produce the vehicle as and when directed by the Trial Court The Trial Court is at liberty to impose any other terms and conditions which the trial Court deems fit and proper. With the said direction the impugned order dated 16.01.2014 passed by learned Judicial Magistrate 1st Class Gumla in Raidih P.S. Case No. 613 corresponding to G.R. No 10213 is hereby set aside. Let a copy of this order be also sent to the Superintendent of Police of Gumla who shall verify the provision of Section 11(1 v) of Animal Cruelty Act and direct the concerned Investigating Officer to bring on record the said provision in the Court below. In the result the application hereby allowed.” So far the judgment relied by Mr. Prabir Kumar Chatterjee learned Spl.P.P. for the State in the case of State of Madhya Pradesh Versus Uday Singh is concerned in that case Hon’ble Supreme Court was considering the Forest Act wherein confiscation provision is there and that is why Hon’ble Supreme Court held that High Court should not interfere under Section 482 Cr.P.C. That case is not helping the petitioner. The judgment relied by Mr. Prabir Kumar Chatterjee learned Spl.P.P. for the State in the case of Nawab Sher Khan Versus State of Jharkhandpassed by this Court is also distinguishable in the facts and circumstances of the present case. In that case this Court has come to conclusion that once the proceeding started under Sections 4(A) and 4(B) of Jharkhand Bovine Animal Prohibition of Slaughtering Act 2005 it will be deemed that confiscation has been started. 11. On perusal of Sections 4(A) and 4(B) of Jharkhand Bovine Animal Prohibition of Slaughtering Act 2005 it transpires that there is no provision of confiscation in that Sections. This Section speaks Restriction on report and Permit for report. Thus that judgment is distinguishable in the facts and circumstances of the case. In view of the above facts and the settled law the detention of vehicle is of no use as it will not only lead to damage and loss of utility of the vehicle but will also cause a loss of revenue to the Government due to non pilance of the commercial vehicle. The Trial Court is directed to grant interim custody of vehicle bearing Registration No. WB 23C 8093 by ordering it to be released in favour of the petitioner on his giving an undertaking on the following terms and conditions: i) Petitioner shall furnish an indemnity bond of Rs. Three Lacs Fifty Thousandwith two sureties. ii) One of the surety must be a resident and owner of a commercial vehicle of District Giridih iii) that the petitioner shall not sale mortgage or transfer the ownership of the vehicle on hire purchase agreement or mortgage or iv) He shall not change or tamper with the identification of the v) He shall produce the vehicle as and when directed by the Trial in any manner. vehicle in any manner. The Trial Court is at liberty to impose any other terms and conditions which the trial Court deems fit and proper. 15. With the aforesaid directions the impugned order dated 18.01.2021 passed by the learned Principal Sessions Judge Giridih in connection with Dumri P.S. Case No.1219 is hereby quashed. Accordingly this criminal miscellaneous petition stands allowed and Ajay (Sanjay Kumar Dwivedi J

While awarding maintenance, the Court has to consider the status of the parties, their respective needs, and the capacity of the husband to pay: High Court of Delhi

Where the husband fails to produce any documentary proof with regard to his employment status and also his actual income by not disclosing his source of income, the husband is trying to defeat the legitimate right of the wife to claim maintenance and also shirking his responsibilities. While awarding maintenance, the Court has to consider the status of the parties, their respective needs, capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and those he is obliged under the law and statutory but involuntary payments or deductions and the same was upheld by High Court of Delhi through the learned bench led by Justice Mukta Gupta in the case of SH.BHAGWAN DASS vs. SMT. POONAM & ORS [CRL.REV.P. 357/2020] on 28.01.2022. The facts of the case are that the petitioner seeks setting aside/modification of the judgment directing the petitioner to pay a maintenance of ₹3000 per month to the respondent till her life time or she gets remarried after divorce from the petitioner. The petitioner was further directed to pay an amount of ₹4000/- per month to the respondent and ₹6000 per month with effect till the date of majority of this child. The petitioner was also directed to pay an amount of ₹7500 to each of the three respondents as litigation expenses for the period of litigation. The petitioner’s counsel submitted that the petitioner had clearly stated and filed a reply stating that he was able to earn ₹4000 per month at the time of filing reply to the petition and presently, he was earning ₹16,000 per month and thus, he is not in a position to pay the amount directed vide impugned order as the same was beyond his income and assets. The respondent’s counsel submitted that the petitioner has neither filed his bank statement nor his income tax returns as he does not pay the income tax. However, from the life style of the petitioner and according to the findings of the learned Additional Principal Judge, Family Courts assessing his income at ₹35,000 per month. According to facts and circumstances, Court disposed of the suit on terms that ₹35,000 per month is a fair assessment of the plaintiff’s income according to his lifestyle and in absence of his bank statement or his income tax returns. The Court observed that, “where the husband fails to produce any documentary proof with regard to his employment status and also his actual income by not disclosing his source of income, the husband is trying to defeat the legitimate right of the wife to claim maintenance and also shirking his responsibilities. While awarding maintenance, the Court has to consider the status of the parties, their respective needs, capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and those he is obliged under the law and statutory but involuntary payments or deductions.” Click here to read the Judgment

IN THE HIGH COURT OF DELHI AT NEW DELHI Decided on : 28th January 2022 CRL.REV.P. 357 2020 CRL.M.A. 15896 2020SH.BHAGWAN DASS Petitioner Represented by: Mr. M.A. Inayati Advocate. Respondent Represented by: Mr. Yogesh Kumar Gupta Advocate. SMT. POONAM & ORS. HON BLE MS. JUSTICE MUKTA GUPTA JUDGMENT :The hearing has been conducted through video conferencing. aside modification of the judgment dated 31st August 2020 passed by the revision petition the petitioner Additional Principal Judge Family Courts West District Tis Hazari Courts directing the petitioner to pay a maintenance of ₹3000 per month to the respondent No. 1 with effect from 12th April 2010 till 31st December 2017 then at the rate of ₹4500 per month with effect from 1st January 2018 till 31st July 2020 and then at the rate of ₹10 000 per month with effect from 1st August 2020 till her life time or she gets remarried after divorce from the petitioner. The petitioner was further directed to pay an amount of ₹4000 per month to the respondent No. 2 with effect from 12th April 2010 till 31st December 2017 then at the rate of ₹4500 per month with effect from 1st January 2018 till 31st July 2020 CRL.REV.P. 357 2020 and then at the rate of ₹6000 per month with effect from 1st August 2020 till the date of majority of this child i.e. 8th November 2020. The petitioner was further directed to pay an amount of ₹3000 per month to the respondent No. 3 with effect from 12th April 2010 till 31st December 2017 then at the rate of ₹4500 per month with effect from 1st January 2018 till 31st July 2020 and then at the rate of ₹6000 per month with effect from 1st August 2020 till the date of attaining majority by the child. The petitioner was also directed to pay an amount of ₹7500 to each of the three respondents as litigation expenses for the period of litigation. Learned counsel for the petitioner submits that the petitioner had clearly stated and filed a reply stating that he was able to earn ₹4000 per month at the time of filing reply to the petition and presently he was earning ₹16 000 per month and thus he was not in a position to pay the amount directed vide impugned order as the same was beyond his income and assets. The learned Additional Principal Judge Family Courts wrongly assessed the income of the petitioner till 31st December 2017 at ₹20 000 per month and ₹27 000 per month till 31st July 2020 and since 1st August 2020 the present income was assessed at ₹35 000 per month. The petitioner did not file his bank statement before the Family Court stating that he was not depositing his income in the bank. Claim of the petitioner in his affidavit of income assets and expenditure was that he was working as a ‘freelance worker working at Karol Bagh New Delhi’ however no other particulars were given. In his cross examination the petitioner denied that he was running a factory of rice bags and shoes at D 290 Madipur Delhi and claimed that he used to CRL.REV.P. 357 2020 repair old shoes by visiting different factories and on further cross examination stated that he did not remember the names of those factories. The petitioner claimed that he resided at D 290 Madipur Delhi and that the house belonged to his mother but on further cross examination he admitted that it was he who sold this house to his mother. However he did not remember the year when this house was sold by him to his mother. The respondents placed on record photographs of the electricity bills relating to the house No. D 289 290 J.J.Colony Madipur for the months of September 2012 and June 2015 in which the electricity bills for the premises were raised in the name of the petitioner. It is thus evident that not only premises No. 290 the petitioner even possessed House No. D 289 J.J.Colony Madipur. Further in the affidavit the petitioner claimed that he had an expenditure of ₹15 500 per month including the amount of maintenance being paid to the respondents at the rate of ₹10 000 per month and that in addition he was paying ₹82 960 per annum by way of life insurance and endowment policies but he did not furnish the particulars about these policies nor the copies of the policies were filed. The learned Additional Principal Judge Family Courts noted that thus even as per the own showing of the petitioner he was incurring an expenditure of ₹22 000 per month. The petitioner admittedly has a bank account but he has neither disclosed the account number nor filed the copy of the bank statement. The respondents had placed on record the photographs downloaded from the Facebook page of the petitioner wherein the petitioner has taken certain selfies and he is seen visiting various places in India as tourist. Even an Air Conditioner is seen at his premises and some of the CRL.REV.P. 357 2020 photographs appeared to be of his workplace where he is sitting in an office chair with CCTV camera screen installed near him. In two photographs the petitioner is seen with boxes of finished goods and in one photograph he is seen standing near a new SUV and in some other photographs he is seen travelling wearing decent attires. Thus on the basis of the standard of living of the petitioner the Court assessed the present income of the petitioner at ₹35 000 per month. In the decision reported as 2018 SCC OnLine Del 10828 Vijay Kushwaha vs. Chanchal this Court in an appeal where appellant husband failed to produce any documentary proof with regard to his employment status and also his actual income and by not disclosing his source of income held that the appellant husband is trying to defeat legitimate right of the respondent wife to claim maintenance and also shirking his responsibilities. In such situation the Court held that it was not to allow the relief of reduction in amount of maintenance to the appellant husband when he himself has not come with clean hands and is trying to hide the true facts from the Court. In the decision reported as 7 SCC 7 Jasbir Kaur Sehgal Smt.) vs. District Judge Dehradun the Hon ble Supreme Court held that while awarding maintenance the Court has to consider the status of the parties their respective needs capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and those he is obliged under the law and statutory but involuntary payments or deductions. It was further held that when diverse claims are made by the parties one inflating the income and the other suppressing an element of conjecture and guess work does enter for arriving at the income of the husband. It cannot be done by any mathematical precision. CRL.REV.P. 357 2020 8. As noted above the petitioner is clearly evasive in his affidavit. He has neither filed his bank statement nor his income tax returns as he does not pay the income tax. However from the life style of the petitioner the findings of the learned Additional Principal Judge Family Courts assessing his income at ₹35 000 per month is a fair assessment of the income and hence this Court finds no error in the impugned order as admittedly the respondent No. 1 has no means to support herself as she is not working and has two children to look after as well. Petition is accordingly dismissed. 10. Order be uploaded on the website of this Court. MUKTA GUPTA) JUDGE JANUARY 28 2022 CRL.REV.P. 357 2020

If the cheque towards advance payment is dishonoured, it will not give rise to criminal liability under Section 138 of the act: Jharkhand High Court

Payment by check in the form of an advance payment has been stated, that there was no outstanding liability at the time the check was drawn. As a result, no case under section 138 of the Act may be brought under the Negotiable Instruments Act, 1881. The High Court of Jharkhand in the case of Rang Lal Ram vs The State of Jharkhand [Cr. Revision No. 156 of 2012] by Single Bench consisting of Hon’ble Shri Justice Anubha Rawat Choudhary. The facts of the case are that the accused approached the complainant for financial accommodation. The accused agreed to give to the complainant 40% of the profit to be accrued out of said purchase orders accused and issued a cheque of Rs. 49,500/. But the same was dishonoured on account of insufficient fund. Further, the said notice was sent to the accused through the registered post as well as through courier service. Learned counsel for the petitioner submits that it was the specific case of the complainant himself that he was to invest in the 2 business of the accused and in place of that, he would be entitled to get 40% profit. He further submits that there have been no accounts regarding profit and the cheques were issued only by way of security and not against any existing debt or liability. The further point which has been argued by the learned counsel for the petitioner is that it has come in the trial court’s judgment that the notice was served upon the son of the petitioner and therefore it is submitted that the notice was not served upon the petitioner, and accordingly both the judgments are perverse and fit to be set aside. Learned counsel for the respondents submits that that there is no illegality or perversity in the impugned judgments passed by the learned courts below regarding finding of service of notice upon the petitioner. He submits that there can be several ways in which the accused can avoid service of notice and in such a situation, he has an opportunity to pay the amount by stating that he had not received the notice regarding bouncing of a cheque. He further submits that there is no scope for re-appreciation of evidence particularly when the notice as per the petitioner himself was served upon his son who was residing with him. Relying on the Apex court judgment Indus Airways Private Limited and Others vs. Magnum Aviation Private Limited and Another, it was held that “if the cheque towards advance payment is dishonoured, it will not give rise to criminal liability under Section 138 of the act.”

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 1512 Rang Lal Ram son of Late Jitan Ram resident of Industrial Area Balidih P.O. Balidih P.S. Marafari District Bokaro 1. The State of Jharkhand 2. Balmiki Choudhary son of Late Indradeo Choudhary resident of Azad Nagar P.O. Shivandih P.S. Marafari District Bokaro … Opp. Parties … … … CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY Mr. A. K. Sahani Advocate For the Petitioner For the Opp. Party State : Mr. P. D. Agarwal Advocate For the Opp. Party No. 2 : Mr. Sanjay Kumar Advocate C.A.V. on 05.03.2021 Pronounced on 16.03.2021 Heard Mr. A. K. Sahani learned counsel appearing on behalf of the petitioner. of opposite party State. of opposite party No. 2. Heard Mr. P. D. Agarwal learned counsel appearing on behalf Heard Mr. Sanjay Kumar learned counsel appearing on behalf This revision has been filed for the following reliefs: “This criminal revision has been filed challenging the judgment dated 01.02.2012 passed by learned Sessions Judge Bokaro in Cr. Appeal No. 81 of 2011 whereby he has affirmed the judgment of conviction and the order of sentence dated 28.07.2011 passed by the learned Judicial Magistrate 1st Class Bokaro in C.P. Case No. 434 of 2004 whereby the petitioner has been convicted for the offence under Section 138 of the Negotiable Instruments Act 1881 and has been sentenced to pay a fine of Rs. 1 20 000 out of which Rs. 60 000 has been directed to be given to the complainant opposite party No. 2 by way of compensation and in default of payment of fine he has been directed to undergo simple imprisonment for a period of six months.” Arguments of the petitioner Learned counsel for the petitioner submits that it was the specific case of the complainant himself that he was to invest in the business of the accused and in lieu of that he would be entitled to get 40% profit. He further submits that there have been no accounts regarding profit and the cheques were issued only by way of security and not against any existing debt or liability. The further point which has been argued by the learned counsel for the petitioner is that it is come in the trial court’s judgment that the notice was served upon the son of the petitioner and therefore it is submitted that the notice was not served upon the petitioner. He submits that these aspects of the matter have not been properly considered by the learned courts below and accordingly both the judgments are perverse and fit to be set Learned counsel for the petitioner has relied upon the judgment passed by the Hon’ble Supreme Court reported in12 SCC 539 para 12 onwards. Arguments of the opposite party State Learned counsel appearing on behalf of opposite party State has relied upon a judgment passed by the Hon’ble Supreme Court reported in14 SCC 750 to submit that there is no illegality or perversity in the impugned judgments passed by the learned courts below regarding finding of service of notice upon the petitioner. He submits that there can be a number of ways in which the accused can avoid service of notice and in such situation the Hon’ble Supreme Court has held that the moment the accused appears before the learned court below he has an opportunity to pay the amount by stating that he had not received the notice regarding bouncing of cheque. He further submits that there is no scope for re appreciation of evidence particularly when the notice as per the petitioner himself was served upon his son who was residing with him. Arguments of the opposite party No. 2 Learned counsel appearing on behalf of opposite party No. 2 submits that the learned courts below have rightly appreciated the materials on record and have come to concurrent findings of fact that all the basic ingredients for offence under Section 138 of the Negotiable Instruments Act 1881 have been satisfied and accordingly there is no scope for re appreciation of evidence and coming to a different finding. He further submits that otherwise also there is presumption of law in connection with existing debt when a cheque is issued and the reverse burden has not been discharged by the petitioner. He submits that there is no illegality and perversity in the impugned judgments and therefore the present petition is fit to be Findings of this Court The prosecution case in brief is that the accused in the month of February 2003 approached the complainant for financial accommodation as the accused was going to receive two work orders. The accused agreed to give to the complainant 40% of the profit to be accrued out of said purchase orders. The complainant advanced Rs. 1 00 000 to the accused for carrying out the job but the accused did not pay back the money to the complainant and in the first week of January 2004 on the request of the complainant the accused issued a cheque of Rs. 49 500 dated 31.01.2004 and promised to pay rest of the amounts in installments within March 2004. The said cheque was deposited in the bank on 07.02.2004 but the same was dishonored on account of “insufficient fund”. On receipt of aforesaid information the complainant immediately met the accused at his residence and told him about the dishonor of the cheque. The accused requested the complainant not to take any legal action and issued a fresh cheque of Rs. 55 000 with a request not to produce the same in the bank till first week of March 2004. On 10.03.2004 another cheque was issued by the accused amounting to Rs. 5 000 . The complainant was requested by the accused to deposit the said two cheques of Rs. 55 000 and Rs. 5 000 after 21.03.2004. On 28.03.2004 the accused requested the complainant not to produce the said cheques before the bank for encashment as the accused was unable to arrange sufficient funds. Thereafter the complainant received a letter from the accused intimating the complainant that cheque issued by the accused was issued as a security and the accused asked for another Rs. 50 000 for investment. After receiving the said letter dated 27.03.2004 of the accused the complainant met the accused at his residence on 07.04.2004 and the accused informed the complainant that he wrote the letter dated 27.03.2004 on wrong advice of his friend and the accused sought three months from the complainant for depositing sufficient fund in his bank account. On 30.07.2004 the accused informed and confirmed that there are sufficient funds available in his bank account . Accordingly the complainant deposited the said two cheques dated 16.02.2004 and 10.03.2004 for an amount of Rs. 55 000 and Rs. 5 000 respectively which were dishonored on 02.08.2004 on account of “insufficient fund”. The complainant issued notice to the accused through his Advocate on 17.08.2004 informing about dishonor of cheques and for payment within 15 days. The said notice was sent to the accused through registered post as well as through courier service. Further case of the complainant is that both the letters were served upon the accused on 19.08.2004 and thereafter more than 15 days had elapsed and the accused did not pay the cheque amounts to the complainant hence the complaint petition was filed. 10. The learned Chief Judicial Magistrate Bokaro summoned the accused on 16.02.2005 to face trial for offence under Section 418 of Indian Penal Code and Section 138 of Negotiable Instruments Act 1881 and subsequently charges were also framed under Section 418 of IPC and Section 138 of Negotiable Instruments Act after recording the evidence before charge. The charges were read over and explained to the accused to which he pleaded not guilty and claimed to be tried. 11. The complainant had examined altogether two witnesses and exhibited the following materials as exhibits: Cheque No. 0265373 dated 30.01.2004 marked as ii) Memorandum issued by Vijaya Bank relating to Cheque No. 265373 dated 30.01.2004 of Rs. 49 500 marked as iii) Deposit slip of cheque No. 265373 marked as Exhibit 1 iv) Cheque No. 265372 dated 16.02.2004 of Rs. 55 000 marked asv) Memorandum issued by Vijaya Bank relating to cheque No. 265371 dated 10.03.2004 of Rs. 5 000 and cheque No. 265372 dated 16.02.2004 of Rs. 55 000 marked as Exhibit 2 1) vi) Deposit slip of cheque No. 265372 in Canara Bank marked asvii) Cheque No. 265371 marked asviii) Deposit slip of cheque No. 265371 in Canara Bank Bokaro Steel City Branch marked asix) The letter dated 27.03.2004 of accused Ranglal Ram written to the complainant Balmiki Chaudhary marked as Exhibit 4) x) Legal notice issued by the complainant to the accused Ranglal Ram marked asxi) Letter issued by the learned Advocate of the complainant to the Sub Post Master Sub Post Office Balidih Bokaro Steel City Bokaro marked as12 SCC 539it was held that payment through cheque in the nature of advance payment indicated that at the time of drawl of the cheque there was no existing liability and accordingly in such circumstances no case under section 138 of Negotiable Instruments Act 1881 can be made out. In the instant case the specific case of the complainant was that he was to invest in the business of the accused and in lieu of that it was agreed he would be entitled to get 40% of the profit and subsequently the accused inter alia issued the aforesaid two cheques. Admittedly in the present case the accused has not led any defence evidence. This Court is of the considered view that considering the nature of transactions between the parties and read with the presumption under Section 139 of the Negotiable Instruments Act that the cheque was issued against discharge of existing debt or other liability the argument of the petitioner that the same was issued by way of security has no legal basis and accordingly this Court finds that the accused could not discharge his onus against the presumption of cheque having been drawn in discharge of liability. 20. This Court further finds that so far as the other point raised by the petitioner that there have been no accounts regarding profit and the cheques were issued only by way of security and not any existing debt is concerned the same is also fit to be rejected. This Court finds that the learned court below has dealt with the plea of the petitioner regarding applicability of Sections 138 to 142 of the N.I. Act and in view of the presumption raised under Section 139 of the N.I. Act the aforesaid plea of the petitioner has no legal basis. Admittedly the petitioner did not adduce any defence evidence. There is no material on record to show that the reverse burden upon the petitioner regarding the cheque having been issued against a debt or any liability has not been discharged at all and therefore the presumption under section 139 of Negotiable Instruments Act 1881 remained intact. Accordingly both the points which have been raised by the petitioner during the course of argument are devoid of any merit and are hereby rejected in absence of any perversity or illegality in the impugned judgments passed by the learned courts below. 22. This Court finds that the learned courts below have not committed any error illegality or perversity in convicting the petitioner for bouncing of the aforesaid two cheques. 23. Accordingly this revision petition is dismissed. 24. The bail bonds furnished by the petitioner is hereby cancelled. 25. Let the records be sent back to the court concerned. 26. Let this order be communicated to the learned court below through FAX e mail. Mukul

No party can unilaterally appoint the arbitrator without the consent of the other parties involved: High Court of Delhi

A single party cannot unilaterally appoint an Arbitrator without the consent of the other party, as this would defeat the purpose of an unbiased decree to settle the dispute the parties. This was held in the judgement passed by a bench of the High Court of Delhi consisting of Justice Suresh Kumar Kait in the case of M/s Sital Dass Jewelers v Asian Hotels (North) Ltd. [Arb. P. 661/2021] pronounced on 6th August 2021. The petitioner, M/s Sital Dass Jewelers had a licence agreement with the respondent, Asian Hotels (North) Ltd. which was renewable every five years at the option of the petitioner for leasing of space in the respondent’s shopping arcade in New Delhi. An additional space of of 273 sq. ft. was granted to the petitioner in the same shopping arcade adjacent to the space already in the petitioner’s possession vide supplementary agreement dated 10th August 1984 which were meant to be read along with the original licence agreement dated 1s September 1982. The petitioners pointed out that the shopping arcade was around 40 years old and the infrastructure was in urgent need for repair as it was no longer financially profitable for them to run their shops in the respondent’s arcade. The two parties began to have disputes over various issues like the need for renovating the building and the functioning of the petitioner’s shops. It was pointed out that in the agreement dated 1st September 1982, an arbitration clause was included although it was not specified as to who was to be appointed as the arbitrator. The petitioner’s counsel called for the appointment of Retired Justice N.K. Mody as the sole arbitrator to settle the dispute between the parties. The respondent on the other hand refused to concur with the petitioner’s demands and as a result the present petition was brought before the High Court of Delhi. The arbitration clause in the agreement read that “That in case of any dispute, difference, between the company and you, with regard to any matter including interpretation of this agreement and the clarification thereof, the same shall be referred to the joint arbitration of the Chairman of the Company or any person appointed by the Chairman and the arbitrator appointed by you, whose decision shall be final and binding between the parties and shall not be questioned in any court of law.”

22 to 25 & 56 to 59 IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 06.08.2021 i) + ii) + iii) + ARB.P. 661 2021 M S SITAL DASS JEWELLERS & ANR. ARB.P. 665 2021 M S J.H. JEWELLERS & ANR. ARB.P. 667 2021 M S SITAL DASS SONS & ANR. iv) + ARB.P. 668 2021 ABHUSHAN & ANR. O.M.P.(I)244 2021 vi) + O.M.P.(I)245 2021 M s SITAL DASS SONS & ANR. ABHUSHAN & ANR. vii) + O.M.P.(I)248 2021 M s SITAL DASS JEWELLERS & ANR. viii) + O.M.P.(I)249 2021 M s J.H. JEWELLERS & ANR. Through: Mr. P.K. Agrawal Mr. Rishabh Tomar & Ms. Sukriti Sinha ASIAN HOTELSLTD. Respondent Through: Mr. Sidhant Kumar & Ms. Manyaa Chandok Advocates ARB.P. 661 665 667 & 6621 O.M.P.(I)244 245 248 & 249 2021 HON BLE MR. JUSTICE SURESH KUMAR KAIT JUDGMENT The hearing has been conducted through video conferencing. The above captioned first four petitions have been preferred under Section 11(6) of Arbitration and Conciliation Act 1996 seeking appointment of Arbitrators for adjudication of disputes between the parties. Since the relief sought by the petitioners in these petitions is more or less similar against a common respondent therefore with the consent of counsel for the parties these petitions have been heard together and are being disposed of by this common order. Petitioner No.1 in the above captioned first petition is a proprietorship firm at L 81 Shopping arcade Hotel Hyatt Regency Bhikaiji Cama Place New Delhi and petitioner No.2 is the proprietor. In the third captioned petition petitioner No.1 is a partnership firm and petitioner No.2 is the partner of the firm who are having their office L 79 Shopping arcade Hotel Hyatt Regency Bhikaiji Cama Place New Delhi. ARB.P. 661 665 667 & 6621 O.M.P.(I)244 245 248 & 249 2021 5. Petitioner No.1 firm in first captioned petition and third captioned petition are similar. According to petitioner firm on 01.09.1982 a license agreement along with a supplementary agreement was entered between petitionerand respondent in respect of shops in question which was renewable every five years at the option of petitioner. The case of petitioner is that after change of name of petitioner firm from M S Virender Kumar & Co. to M S Sital Dass Sons an additional space adjacent to shop L 79 viz L 79 Extn.273 sq. ft.) in the same shopping arcade was granted by the respondent to M S Sital Dass Sons vide supplementary agreement dated 10.08.1984 and the terms of original license agreement dated 01.09.1982 were to be read along with agreement dated 10.08.1984. Vide letter dated 01.01.1992 M S Sital Dass Sons through its partners informed the respondent that they shall be operating under two different names i.e. M S Sital Dass Sons represented by Rajendra Kumar Rakyan in shop No. L 79 and the other represented by Mr. Jitendra Rakyan in shop no. L 79 Extn.petitioner No.1 is a partnership firm and petitioner No.2 is the partner of the firm at L 73 ARB.P. 661 665 667 & 6621 O.M.P.(I)244 245 248 & 249 2021 Shopping arcade Hotel Hyatt Regency Bhikaiji Cama Place New Delhi. Petitioner No.1 had entered into a license agreement as well as supplementary agreement both dated 09.09.1992 with respondent in respect of shop in question which was renewable every five years at the option of respondent who had further vide letter dated 0 1.04.1996 transferred the ownership of the said shop from petitioner No.1 to petitioner No.2. In above captioned fourth petition petitioner No.1 firm who was earlier a partnership firm by virtue of a dissolution deed dated 01.04.2015 became a sole proprietorship firm and petitioner No.2 as the sole proprietor at L 78 shopping arcade Hotel Hyatt Regency Bhikaiji Cama Place New Delhi. In respect of shop in question a license agreement along with supplementary agreement both dated 18.02.1992 were executed between erstwhile petitioner firm and the respondent which was renewable every five years. According to petitioners in these petitions on the ground that the internal fittings of shopping arcade were nearly 40 years old and were in urgent need for repair and it was no longer financially profitable to continue with the shopping arcade the respondent vide notice dated 29.05.2020 revoked the license in respect of shop No. L 79 extnL 79 license L ARB.P. 661 665 667 & 6621 O.M.P.(I)244 245 248 & 249 2021 73 and L 78 w.e.f. 01.06.2020. The petitioners contend that the petitioners were in exclusive possession of the shops in question and the aforesaid notice did not mention any violation of the terms and conditions of the license lease agreement by petitioners. Further submitted that petitioners had right to carry on business at the hours suited to them and the license lease could not have been terminated at the will of respondent. 10. Learned counsel for petitioners submitted that agreement dated 01.09.1982 contains an arbitration clause and therefore vide notice dated 23.03.2021 petitioners called upon respondent to concur in the appointment of Hon ble Mr. Justice N.K. Mody as the sole Arbitrator or as nominee Arbitrator of petitioner firm however since respondent has failed to concur with the appointment of aforenoted Arbitrator the petitioners have approached this Court seeking appointment of Arbitrators in these petitions. 11. Learned senior counsel appearing for respondent submits that appointment of Arbitrator is not disputed however the above captioned petitions at serial No.tofiled under the provisions of Section 9 of Arbitration and Conciliation Act be treated as the one filed under Section 17 of the Act so that the subject matter of disputes can be given quietus in one ARB.P. 661 665 667 & 6621 O.M.P.(I)244 245 248 & 249 2021 go by the learned Arbitrator to be so appointed by this Court. 12. At this stage counsel for petitioners fairly concedes that if the disputes inter se parties are being referred to one Arbitrator to arrive at just decision in these matters petitioners have no objection to the aforesaid submission made by learned senior counsel for respondent and the petitions being O.M.P.(I)244 2021 245 2021 248 2021 and 249 2021 be read under Section 17 of the Act. It has been also brought to the notice of this Court that against illegal eviction of petitioners they had preferred a civil suit CS(Comm)) 237 2020 before this Court for declaration and permanent injunction against the respondents which was disposed of vide order dated 21.07.2020 as not maintainable in view of Arbitration clause between the parties. Since both the sides were aggrieved of certain observations made by the Court in the said order it was challenged before the Division Bench COMM) 12 2020]. Vide order dated 24.12.2020 the Division Bench allowed both the appeals and gave liberty to file a petition under Section 8 of the Arbitration and Conciliation Act before the Single Judge while directing that the interim arrangement between the parties before the learned Single Judge that the respondent Asian Hotels Ltd. shall not take ARB.P. 661 665 667 & 6621 O.M.P.(I)244 245 248 & 249 2021 any action against the petitioners shall continue. Learned counsel for petitioners emphasizes that the interim arrangement so made by learned Single Judge and upheld by the Division Bench may continue till the Arbitrator enters into reference. 14. Learned senior counsel appearing on behalf of respondent submits that the aforesaid interim arrangement shall continue till the Arbitrator 15. Both sides have been heard and record of these petitions has been enters into reference. perused. In view of contention raised by both the sides petitions being O.M.P.(I) 244 2021 245 2021 248 2021 and 249 2021 shall be read under Section 17 of the Arbitration and Conciliation Act 1996. 17. Pertinently the agreement dated 01.09.1982 contains an arbitration clause which reads as under: “11. That in case of any dispute difference between the company and you with regard to any matter including interpretation of this agreement and the clarification thereof the same shall be referred to the joint arbitration of the Chairman of the Company or any person appointed by the Chairman and the arbitrator appointed by you whose decision shall be final and binding between the parties and shall not be questioned in any court of law.” 18. Petitioners have invoked arbitration vide notice dated 23.03.2021. The ARB.P. 661 665 667 & 6621 O.M.P.(I)244 245 248 & 249 2021 arbitration agreement between the parties and invocation of arbitration are not disputed by the respondents. Hence these petitions deserve to be 19. However contention of petitioners to appoint Arbitrator of their choice is rejected as no party can be permitted to unilaterally appoint an Arbitrator as the same would defeat the purpose of unbiased adjudication of dispute between the parties. It has so been said in view of pertinent observations of the Hon’ble Supreme Court in Perkins Eastman Architects DPC & Anr. vs. HSCCLtd. 2019 SCC Online SC 1517 wherein it has been categorically stated that “in cases where one party has a right to appoint a sole arbitrator its choice will always have an element of exclusivity in determining or charting the course for dispute resolution. Naturally the person who has an interest in the outcome or decision of the dispute must not have the power to appoint a sole arbitrator.” 20. The afore noted dictum of Hon’ble Supreme Court in Perkins Eastmanhas been followed by Coordinate Benches of this Court in Proddatur Cable Tv Digi Services Vs. Siti Cable Network Limited 2020 SCC OnLine Del 350 and VSK Technologies Private Limited and Others Vs. Delhi Jal Board 2021 SCC OnLine Del 3525 in unequivocal terms. ARB.P. 661 665 667 & 6621 O.M.P.(I)244 245 248 & 249 2021 21. Concurring with the decisions as noted above the present petition is allowed. 22. Accordingly Mr. R. L. Meena former Secretary department of Law and Justiceis appointed the Sole Arbitrator to adjudicate the dispute between the parties. 23. The fee of the learned Arbitrator shall be governed by the Fourth Schedule of the Arbitration and Conciliation Act 1996. 24. The learned Arbitrator shall ensure compliance of Section 12 of Arbitration and Conciliation Act 1996 before commencing the arbitration. 25. Needless to say all issues are left open for agitation by the parties and consideration by the learned Arbitrator. It is also made clear that till the Arbitrator enters into reference the respondent Asian Hotels Ltd. shall not take any action against the petitioners. 26. With aforesaid directions these petitions and pending application if any are accordingly disposed of. JUDGE SURESH KUMAR KAIT) AUGUST 06 2021 ARB.P. 661 665 667 & 6621 O.M.P.(I)244 245 248 & 249 2021

Medical and financial conditions to be considered for the premature release of the amount deposited in the form of FDR : High Court of Delhi

The medical and financial conditions of a person to be considered as sufficient grounds for the release of the amount awarded in their favor deposited in the form of FDR. This was held in the case of Smt. Mina Devi v. Shreshth Jain & Ors,[CM(M) 201/2021] by Hon’ble Justice Prathibha M Singh in the High Court of Delhi. The brief background is that an accident had taken place in Paschim Vihar, Delhi where the Petitioner’s son had unfortunately passed away. An FIR was duly registered and a claim was also filed by the Petitioner under the Motor Vehicles Act 1988, before the Motor Accident Claims Tribunal. The matter was referred to the Lok Adalat and an award of settlement to the tune of Rs.13,40,000/- was passed in the Lok Adalat. In the award passed by the Lok Adalat, the total amount was divided amongst various Petitioners, but the period of the FDR was mentioned as five years. The amount awarded in favour of the Petitioner was Rs.7,00,000/-. The Insurance Company deposited the said amount and thereafter, the Petitioner moved various applications before the Tribunal for release of the said amount. The release of the said amount has been repeatedly denied by the Tribunal. The Petitioner is a senior citizen who is over 70 years of age. She is in a precarious financial condition, and accordingly prays for the release of the said amount. Counsel for the Petitioner has emphasized upon the medical and financial conditions of the Petitioner. The Petitioner’s prayer for release has been rejected, in spite of the Petitioner having cited extremely adverse conditions such as flooding of her house, and other chronic medical conditions. The tribunal has continuously maintained its stand that even the above-mentioned reasons do not constitute sufficient grounds for a premature release of the amount in the FDR. The insurance company has also deposited the said amount. Thus, considering the physical, medical, and financial condition of the Petitioner, there can be no reason whatsoever not to release the said amount in favour of the Petitioner, who is the mother of the deceased and is admittedly over 70 years of age. Counsel for the Insurance Company has also submitted that the release of the amount is purely within the discretion of this Court as the amount as per the order by the Lok Adalat, has already been deposited by the Insurance Company.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 8th March 2021 SMT. MINA DEVI Through: Mr. Himanshu Sapra Advocate SH. SHRESTH JAIN & ORS Through: Mr. Rudra Kahlon and Ms. Vandana JUSTICE PRATHIBA M. SINGH Prathiba M. Singh J.(Oral This hearing has been done through video conferencing CM APPL. 9087 2021201 2021 The present petition has been filed by the Petitioner challenging the impugned order dated 11th December 2019 passed by the Presiding Officer Motor Accident Claims Tribunal Tis Hazari Courts vide which the prayer of the Petitioner for premature release of the amount deposited in her favour by the Insurance Company in the form of an FDR has been rejected. The Petitioner in the present petition also prays for release of the said amount in The brief background is that an accident had taken place in Paschim Vihar Delhi where the Petitioner’s son had unfortunately passed away. An FIR was duly registered and a claim was also filed by the Petitioner under the Motor Vehicles Act 1988 before the Motor Accident Claims Tribunal hereinafter “Tribunal”). The matter was referred to the Lok Adalat and an award of settlement to the tune of Rs.13 40 000 was passed in the Lok Adalat. In the award passed by the Lok Adalat the total amount was divided amongst various Petitioners but the period of the FDR was mentioned as five years. The amount awarded in favour of the Petitioner herein is 7 00 000 . The Insurance Company deposited the said amount and thereafter the Petitioner moved various applications before the Tribunal for release of the said amount. The release of the said amount has been repeatedly denied by the Tribunal The Petitioner’s case is that the Petitioner is a senior citizen who is over 70 years of age. She is in a precarious financial condition and accordingly prays for release of the said amount. Today as well ld. Counsel for the Petitioner has emphasized upon the medical and financial conditions of the Petitioner A perusal of the orders passed by the Tribunal shows that on 21st August 2019 the Tribunal observed that the ground of the Petitioner being hand to mouth is not a sufficient ground for the amount to be released. Even in the order dated 11th December 2019 the Petitioner’s prayer for release has been rejected in spite of the Petitioner having cited extremely adverse conditions such as flooding of her house and other chronic medical conditions. The tribunal has continuously maintained its stand that even the above mentioned reasons do not constitute sufficient grounds for a premature release of the amount in the FDR is clear from a perusal of the award of settlement dated 8th September 2018 passed by the Lok Adalat in MACT Case No. 619 2017 that the amount of Rs. 13 40 000 is not in dispute and has already been settled between the parties. The insurance company has also deposited the said amount. Thus considering the physical medical and the financial condition of the Petitioner there can be no reason whatsoever not to release the said amount in favour of the Petitioner who is the mother of the deceased and is admittedly over 70 years of age. Ld. Counsel for the Insurance Company has also submitted that the release of the amount is purely within the discretion of this Court as the amount as per the order by the Lok Adalat has already been deposited by the Insurance Company The Tribunal ought to have taken a compassionate view in the matter and to hold that the medical and financial conditions as also the hand to mouth condition of the Petitioner are not sufficient grounds for release of the said amount that has been awarded in her favour is clearly an untenable position taken by the Tribunal. If the amount is not released the entire purpose may be defeated owing to her age medical condition and precarious financial condition. It is noted that the deceased was unmarried at the time of his death and the amounts awarded to the various family members by the Lok Adalat are KISHORI LALRs. 1 00 000 ” Rs. 2 00 000 Rs. 7 00 000 Rs. 1 00 000 Rs. 1 50 000 Considering the overall facts and circumstances of this case the sum of Rs. 7 lakhs lying in an FDR along with proportionate interest which has been earned on the said amountbe released to the Petitioner the mother of the deceased within a period of two weeks from today The petition and all pending applications are disposed of in the above terms. A digitally signed copy of this order shall be sufficient for the purpose of further processing the release of the said amount MARCH 8 2021 PRATHIBA M. SINGH Page

Quality reasoning for granting bail necessary for the application of Section 439 of Code of Criminal Procedure: Supreme Court

When the High Courts grant bail vide the power vested to them under Section 439 of the code of Criminal Procedure, their order must be accompanied by a quality set of reasons for the grant of bail which the norm of the judicial process. The following judgment was passed by the Hon’ble Supreme Court of India in the case of Sonu vs Sonu Yadav and Another [Crl. A. 377/2021] by a Double Bench consisting of Hon’ble Shri Justice  Dr. D Y Chandrachud and Hon’ble Shri Justice M R Shah. The present judgment was a criminal appeal filed against the order passed by the high court of judicature of Allahabad under the Criminal Bail Application. An FIR was filed in District Etwah for the offenses mentioned under section 498A and 304B of the Indian penal Code and Section 3 and section 4 of the Dowry Prohibition Act, 1861. The same was filed by the brother of the deceased against the first respondent. It was further alleged that while the parents of the first respondent were not satisfied with the dowry, the first respondent made a phone call to the appellant stating that if Rs. 5 lakhs were not given the appellant’s sister would not be alive. The next day morning the appellant received a call to take away his Sister’s body. While the bail application was rejected by the sessions judge the High Court allowed the same under section 439 of the CrPC and granted bail without stating any reasons. The counsel for the appellant contended that there was absolutely no reason given for the grant of bail, the medication was prescribed a month before the incident, and the prescription-only supports that the deceased was undergoing medical treatment. Further, since the death happened within 1 year of marriage and based on Section 304B of the Indian penal code and the presumptions under section 113A and 113B of the Indian Evidence act; there exists no ground for bail. The counsel appearing on behalf of the first respondent argued that the High Court did not comment as it would impede the trial, the findings suggest hanging and no complicity of the First respondent, and therefore the court should not interfere in the grant of bail. The Hon’ble Supreme Court held that the medical prescription depicts how much the deceased had been mentally harassed in relation to the dowry given that the deceased had no serious ailment. Further based on section 304B of the Indian penal code and 113B of the Indian Evidence Act the High Court is not justified in granting bail. Further, it relied on the case of Brij Nandan Jaiswal vs. Munna alias Munna Jaiswal [2009 1 SCC 678] decided by a two-judge Bench, wherein they observed, “while granting bail, particularly in serious cases like murder some reasons justifying the grant are necessary.” Relying on the same the Supreme Court held that order without reasons is contrary to the judicial process and the administration of criminal justice cannot be reduced to general observations. Further, it adjudicated that since the High Court granted bail without due application of mind to the facts and circumstances of the case and the provision of law, the law seeks the court to interfere in the matter.

IN THE CRIMINAL APPELLATE JURISDICTION Criminal Appeal No 3721 Arising out of SLPNo 9221) Sonu Yadav and Another JUDGMENT This appeal arises from a judgment and order dated 1 December 2020 of a Single Judge of the High Court of Judicature at Allahabad in Criminal Miscellaneous Bail Application No 173320. Dr Dhananjaya Y Chandrachud J Leave granted. Crl.A.377 2021 A First Information Report FIR No 0076 of 2019 was registered on 9 February 2019 at Police Station Friends Colony District Etawah for offences under Sections 498 A and 304 B of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act 1861. The First Information Report was registered on the complaint of the appellant who is the brother of the deceased. The marriage between the deceased and the first respondent was solemnized on 5 July 2018. It has been alleged in the FIR that at the time of the marriage a cash amount of Rs 15 lakhs a motor vehicle and other household articles were provided in dowry. It has been alleged that the first respondent and his parents were not satisfied with the amount of dowry and an amount of Rs 5 lakhs was being demanded. On 8 February 2019 it has been alleged that at about 8.45 pm a phone call was received from a cell phone from the first respondent when the appellant was informed that if he wished to see his sister alive an amount of Rs 5 lakhs should be arranged. It has been alleged that the phone was then disconnected. However at 1.30 am on 9 February 2019 the appellant is alleged to have received a phone call requiring him to take away the dead body of his sister. The FIR records that the appellant together with the members of the family went to Etawah and found that the matrimonial home of the appellant’s sister was locked. They came to know that her dead body had been kept at the district hospital. On these allegations the First Information Report came to be registered at 11.49 am on 9 February 2019. A charge sheet has been submitted on 3 May 2019 for offences alleged under Sections 498 A and 304 B of the Indian Penal Code and Sections 3 and 4 of the Crl.A.377 2021 Dowry Prohibition Act. The bail application filed by the first respondent was rejected by the Sessions Judge on 18 June 2019. The High Court was thereafter moved in a bail application under Section 439 of Code of Criminal Procedure 1973. After recording the rival submissions the High Court allowed the application observing thus: “Considering the entire facts and circumstances of the case submissions of learned counsel for the parties and keeping in view the nature of offence evidence complicity of accused and without expressing any opinion on the merits of the case the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.” 5 We have heard Mr Vishal Yadav learned counsel appearing on behalf of the appellant Mr Ravinder Singh learned senior counsel for the first respondent and Mr Sanjay Jain learned counsel for the State of Uttar Pradesh have appeared in pursuance of the notice issued by this Court on 27 January 2021. 6 Mr Vishal Yadav learned counsel appearing on behalf of the appellant submits thatthe High Court has adduced absolutely no reasons for the grant of bail ii) the submission before the High Court that the deceased was suffering from a mental illness is patently false and the so called medical prescription dated 1 January 2019 was issued by an Ayurvedic doctor about a month before the date of the incident on 1 January 2019 ex facie the medical prescription would indicate that the deceased was not undergoing treatment for a mental condition the death has taken place within a year of the marriage andhaving regard to the provisions of Section 304 B of the Indian Penal Code and Crl.A.377 2021 the presumptions which arise under Sections 113 A and 113 B of the Evidence Act there was no justification for the High Court to grant bail at the present 7 On the other hand Mr Ravindra Singh learned senior counsel appearing on behalf of the first respondent has supported the view of the High Court on the ground that the High Court has desisted from expressing any view on the merits which may impede the course of the trial the statements which have been recorded during investigation would indicate that the death was as a result of hanging there is no complicity whatsoever of the first respondent iv) hence it would be appropriate for this Court not to interfere with the order granting bail to the first respondent. 8 Mr Sanjay Jain learned counsel appearing on behalf of the State of UP has submitted that an attempt has been made on behalf of the accused to improve upon the case in the course of the pleadings. He sought to demonstrate this by making a reference to paragraph 21 of the bail application filed before the High Court in which it was denied that the mobile number from which the informant was alleged to have received the phone call demanding additional dowry was in any manner associated with the family or the near relatives of the accused. On the other hand it has been pointed out that in paragraph 7 of the counter affidavit before this court the specific case of the first respondent is that on 8 February 2019 when he was away from home to attend a marriage of a close friend he had received a call at 8.45 pm from the Crl.A.377 2021 same mobile number which is referred to in the FIR to the effect that his spouse has committed suicide. Hence it has been submitted that there has been a clear attempt to improve upon the case which was set up in the application for bail filed before the High Court. At the present stage certain basic aspects need to be noted. It is not in dispute that the first respondent was married to the sister of the appellant on 5 July 2018. She died on 8 February 2019 within a year of the marriage. There are specific allegations in the First Information Report in regard to the demand of dowry as well as in regard to a phone call being received from the accused in close proximity to the death of the sister of the appellant when a demand for additional amounts of money was made. The submission in support of bail recorded by the High Court was that the sister of the appellant was undergoing treatment for a mental illness. In this context it is material to note that in paragraph 22 of the bail application the plea was that the deceased was “suffering from severe headache and was mentally disturbed since the past nine months” and that she was taken to a doctor by the first respondent. A copy of the medical prescription which has been submitted before this Court would prima facie indicate that there was no serious ailment. The medical prescription of the Ayurvedic doctor and the remedies prescribed belie such a claim. Prima facie there are serious allegations in the FIR in regard to the harassment suffered by the deceased in close proximity to her death over demands for dowry by the accused. In view of the provisions of Section 304 B of the Indian Penal Code as well as the presumption which arises under Section 113 B of the Evidence Act Crl.A.377 2021 the High Court was clearly not justified in granting bail. The order of the High Court granting bail contains absolutely no reasons at all. While it is true that at the time of considering an application for bail the High Court would not be required to launch into a detailed enquiry into the facts which have to be determined in the course of trial equally an application of mind by the High Court to the rival submissions is necessary. The High Court has merely recorded the submissions and in the extract which we have reproduced earlier proceeded to grant bail without any evaluation of the rival submissions. In this context it would be worthwhile to reproduce the principle which has been formulated in the two Judge Bench decision of this Court in Brij Nandan Jaiswal vs. Munna alias Munna Jaiswal1 SCC 678 where the Court observed thus: “It is now a settled law that the complainant can always question the order granting bail if the said order is not validly passed. It is not as if once a bail is granted by any court the only way is to get it cancelled on account of its misuse. The bail order can be tested on merit also. In our opinion therefore the complainant could question the merits of the order granting bail. However we find from the order that no reasons were given by the learned Judge while granting the bail and it seems to have been granted almost mechanically without considering the pros and cons of the matter. While granting bail particularly in serious cases like murder some reasons justifying the grant are necessary.” In the earlier part of this judgment we have extracted the lone sentence in the order of the High Court which is intended to display some semblance of reasoning for justifying the grant of bail. The sentence which we have extracted earlier contains an omnibus amalgam of“the entire facts and circumstances of the case” “submissions of learned Counsel for the parties” “the nature Crl.A.377 2021 of offence” “evidence” and“complicity of accused”. This is followed by an observation that the “applicant has made out a case for bail” “without expressing any opinion on the merits of the case”. This does not constitute the kind of reasoning which is expected of a judicial order. The High Court cannot be oblivious in a case such as the present of the seriousness of the alleged offence where a woman has met an unnatural end within a year of marriage. The seriousness of the alleged offence has to be evaluated in the backdrop of the allegation that she was being harassed for dowry and that a telephone call was received from the accused in close proximity to the time of death making a demand. There are specific allegations of harassment against the accused on the ground of dowry. An order without reasons is fundamentally contrary to the norms which guide the judicial process. The administration of criminal justice by the High Court cannot be reduced to a mantra containing a recitation of general observations. That there has been a judicious application of mind by the judge who is deciding an application under Section 439 of the CrPC must emerge from the quality of the reasoning which is embodied in the order granting bail. While the reasons may be brief it is the quality of the reasons which matters the most. That is because the reasons in a judicial order unravel the thought process of a trained judicial mind. We are constrained to make these observations because the reasons indicated in the judgment of the High Court in this case are becoming increasingly familiar in matters which come to this Court. It is time that such a practice is discontinued and that the reasons in support of orders granting bail comport with a judicial process which brings credibility to the administration of criminal justice. Crl.A.377 2021 For the above reasons we are of the view that the order of the High Court granting bail without due application of mind to the relevant facts and circumstances as well to the provisions of the law requires the interference of this Court. 13 We accordingly allow the appeal and set aside the impugned judgment and order of the Single Judge of the Allahabad High Court dated 1 December 2020 granting bail to the first respondent. The grant of bail to the first respondent shall accordingly stand set aside and the first respondent shall surrender forthwith. We however clarify that the observations contained in the present order are confined to the issue of bail and shall not affect the merits of the trial. 14 Pending applications if any stand disposed of. [M R Shah] New Delhi April 5 2021

Circumstantial Evidence without the presence of motive is not enough to convict the accused: Supreme Court of India

Supreme Court quashed the order of the High Court and upheld the judgement given by the session’s court concerning inconsistency in the flow of events from the prosecution held by Justice M.R.Shah in the case of Anwar Ali and another Vs State of Himachal Pradesh [Criminal Appeal No. 1121 OF 2016]. This appeal was filed by the original petitioner against the order of the High Court reversing the order of acquittal of the accused passed by the learned trial court. The accused were charged under Section 302,34,392,201 and 420 (Punishment for murder, Liability for acts done by several persons in furtherance of common intention, Robbery, causing disappearance of evidence of offence or giving false information to screen offender, Cheating and dishonest inducing) of Indian Penal Code, 1860 for the murder of Mr Deepak. The deceased’s body was found which was identified by his father and three days later the SHO of the police received information regarding a deserted vehicle that contained mobile phones and photos of the accused. Hence, they were arrested and a charge sheet was filed. Since there was no direct evidence the Trial Court felt that circumstantial evidence without proving men’s rea cannot be enough to convict a person and thus the accused were acquitted which was later set aside by the order of the High Court. The contention of the appellants was that the High Court exceeded its jurisdiction to give an order against the order of the trial court. The appellants proved the various lacuna which was even considered by the trial court. There was no flow of events and there were discrepancies in the events presented by the respondent. The SHO has also not followed the whole procedure as given under Section The respondents claimed that High Court has the authority to re-examine all the evidence from the beginning and come to a conclusion. The case of State of Punjab v. Balbir Singh [(1994) 3 SCC 299] was relied on where it was held by the Supreme Court, a defective investigation if any does not vitiate the trial. It is submitted that as held by this Court in the case of Sudha Renukaiah v. State of Andhra Pradesh [(2017) 13 SCC 81], in which it was held that, “even if the IO has committed any error and has been negligent in carrying out any investigation or in the investigation there is some omission and defect, it is the legal obligation on the part of the court to examine the prosecution evidence dehors such lapses.” In Atley v. State of U.P. [AIR 1955 SC 807], it has been laid down by this Court that “it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well-established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence.” Hence, the contention of the appellant that the High Court exceeded its jurisdiction was not sustained. However, the Supreme Court accepted the fact this is a case of circumstantial evidence. In the case of G. Parshwanath v. State of Karnataka [(2010) 8 SCC 593], it was held that there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused, where various links in the chain are in themselves complete, then the false plea or false defence may be called into aid only to lend assurance to the court. The Court was of the view that the stance taken up by the Trial Court was correct and there were too many procedural gaps and fake documents to be overlooked. The Court relying on precedence stated that “absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused”. While appreciating the facts and circumstances of the case the Court held that the order of the High Court is squashed and the two accused are acquitted. Click here to read the judgement

Feeling aggrieved and dissatisfied with the impugned of Himachal Pradesh in Criminal Appeal No. 464 of 2012 by the respondent The State of Himachal Pradesh and has reversed the judgment and order of acquittal passed by the learned trial Court and consequently has convicted the Sections 302 read with 34 392 201 and 420 IPC and has with 34 IPC the appellants original accused have preferred the for the offences punishable under Sections 302 read with 34 392 420 and 201 IPC for having committed the murder of one Deepak. That the dead body of the deceased was found on 2.9.2010 near bypass Bihali Road Chandigarh. That the dead body was seen by one Jashwinder Singh PW4 who informed the police station Bhunter. On receiving such information the police came on the spot recorded the statement of PW4 prepared police station Bhunter. FIR was registered by Head Constable the deceased. The investigating officer PW18 conducted the that one vehicle was lying at Chandigarh in abandoned condition. IO along with the other police officers went to Chandigarh and recovered the abandoned vehicle from Sector 45C Chandigarh. On checking the jeep one envelope was found to have been recovered containing mobile phone three 8.9.2010. During the investigation the IO recovered the crates from Punjab. IO also recovered one knife and the rope on 09.09.2010 alleged to have been used in commission of the After conclusion of the investigation IO filed chargesheet against the accused persons for the aforesaid WWW.LIVELAW.IN 2.1 To prove the case against the accused the prosecution Dinesh Singh recovery of from the jeep). Before the trial Court the case was based on appreciation of evidence on record both oral as well as sniffer dogs and on appreciation of evidence found that the recoveries were made earlier and the panchnama of the same were prepared subsequently on which PW5 and PW6 put their signatures. Having found that the prosecution has failed to a case of circumstantial evidence by a detailed judgment and 2.2 On appeal by the State by the impugned judgment and order the High Court has reversed the judgment and order of convicted the accused for the offences punishable under WWW.LIVELAW.IN Sections 302 read with 34 392 420 and 201 IPC. By the for the offence under Section 392 IPC and in default of payment of fine further rigorous imprisonment for a period of three months. The High Court has also sentenced the appellants to pay a fine of Rs.10 000 ­ each for the offence under Section 420 IPC and in default of payment of fine further rigorous the offence under Section 201 IPC and in default of payment of 2.3 Feeling aggrieved and dissatisfied with the impugned the aforesaid offences the appellants­original accused have Learned counsel appearing on behalf of the appellants­ passed by the learned trial Court and consequently acquittal on suspicion surmises and conjectures that the learned trial Court as such committed no that the High Court has failed to appreciate and consider that the knife which is alleged to have been recovered on the disclosure statements of the accused persons had already been recovered on 2.9.2010 with the the disclosure statements of the accused persons on doubtful which came to be considered in detail by the Chandigarh police while conducting investigation in those areas as required under Section 166(3) Cr.P.C. and other that even the IO has not tried to examine any independent witness of Chandigarh though several people that even the recovery of mobile of PW7 is very miscreants how was the mobile used by the accused the jeep with the photographs of the appellants All these material witnesses like Biri Singh Dinesh Singh Lucky WWW.LIVELAW.IN SubashRam Pal Niranjan Singh material witnesses on recovery and seizure memos has proved fatal for the prosecution and has created serious not examined by the prosecution and most of the police witnesses only were produced in the court It is submitted that non­examination of material witnesses is fatal for the that it is an admitted position that it is a case of circumstantial evidence. Therefore before convicting the accused who alone has committed the offence. It is that there are material contradictions and even the recovery of jeep knife and rope photographs from the jeep WWW.LIVELAW.IN and creates serious doubts and therefore the learned trial 3.1 Making the above submissions and taking us to the deposition of PW4 PW5 and PW18 and relying upon the decisions of this Court in the cases of Babu v. State of Kerala 2010) 9 SCC 189 Bannareddy v. State of Karnataka 5 SCC 790 State of Rajasthan v. Mukesh Kumar alias Mahesh Dhaulpuria7 SCC 678 and State of Rajasthan v. Madan alias Madaniya 13 SCC 653 it is prayed to allow the passed by the High Court and restore the well­reasoned judgment and order of acquittal passed by the learned trial The present appeal is vehemently opposed by the learned counsel appearing on behalf of the respondent State of after re­appreciation of entire evidence on record found the accused guilty for the unnatural death of Deepak Kumar 4.2 It is submitted that the High Court on re­appraisal of the entire evidence on record has considered the following recovery of weapon of offence on the disclosure recovery of crates on the disclosure statement of while considering the afore­stated circumstances against the particularly the deposition of PW1 PW3 PW4 PW5 PW11 and 4.5 In the alternative it is submitted by the learned counsel come in the way of dispensation of justice. Heavy reliance is placed upon the decision of this Court in the case of C It is submitted that as held by this Court in the case of State of Punjab v. Balbir Singh 3 SCC 299 a defective investigation if any does not vitiate the trial. It is submitted that as held by this Court in the case of Sudha Renukaiah v. State of Andhra Pradesh 13 SCC 81 in WWW.LIVELAW.IN which the decision in the case of Muniappanwas relied part of the court to examine the prosecution evidence de hors of weapon of offence recovery of jeep recovery of photographs established and proved by the prosecution beyond doubt by examining the relevant witnesses which as such were not submitted that therefore the order of acquittal passed by the this Court in the case of G. Parshwanath v. State of Karnataka Court in the case of Vijay Mohan Singh v. State of Karnataka 2019) 5 SCC 436 paragraphs 30 31. 31.1 31.2 31.3 31.4 and 32 of the said decision. It is submitted that in the aforesaid independently and come to its own conclusion. However ordinarily the High Court would give due importance to the opinion of the Sessions Judge if the same was arrived at after proper appreciation of the evidence. It is submitted that it is 4.8 Making the above submissions and relying upon the aforesaid decisions of this Court it is prayed to dismiss the at length. We have gone through in detail the judgment and impugned judgment and order passed by the High Court Court and thereby convicting the accused. we have also gone through the relevant evidences both oral as well as 5.1 At the outset it is required to be noted that this is a case of evidence. Therefore the first and foremost thing which is required to be considered is whether in the facts and circumstances of the case the High Court is justified in WWW.LIVELAW.IN 5.2 Before considering the appeal on merits the law on the Cr.P.C. and the interference by the High Court in an appeal In the case of Babuthis Court had reiterated Section 378 Cr.P.C. In paragraphs 12 to 19 it is observed and set aside a judgment of acquittal in a case where two views are probable one. While dealing with a judgment of acquittal the had failed to take into consideration admissible evidence and or had taken into consideration the evidence brought on record Balak Ram v. State of U.P3 SCC 219 Shambhoo Missir v State of Bihar4 SCC 17 Shailendra Pratap v. State of U.P 2003) 1 SCC 761 Narendra Singh v. State of M.P10 SCC 699 Budh Singh v. State of U.P9 SCC 731 State of U.P. v Ram Veer Singh13 SCC 102 S. Rama Krishna v. S. Rami Reddy 5 SCC 535 Arulvelu v. State 10 SCC 206 Perla Somasekhara Reddy v. State of A.P16 SCC 98 and 13. In Sheo Swarup v. King Emperor AIR 1934 PC 227 the Privy WWW.LIVELAW.IN the fact that he has been acquitted at his trial the right of the accused to the benefit of any doubt and the slowness of an v. State of Punjab AIR 1957 SC 216 M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200 Khedu Mohton v. State of Bihar 1970) 2 SCC 450 Sambasivan v. State of Kerala5 SCC 412 15. In Chandrappa v. State of Karnataka4 SCC 415 this reconsider the evidence upon which the order of acquittal is 2) The Code of Criminal Procedure 1973 puts no limitation 3) Various expressions such as ‘substantial and compelling reasons’ ‘good and sufficient grounds’ ‘very strong circumstances’ ‘distorted conclusions’ ‘glaring mistakes’ etc. are not intended to interfere with acquittal than to curtail the power of the court to 4) An appellate court however must bear in mind that in case of acquittal there is double presumption in favour of the accused competent court of law. Secondly the accused having secured his acquittal the presumption of his innocence is further reinforced evidence on record the appellate court should not disturb the 16. In Ghurey Lal v. State of U.P10 SCC 450 this Court reiterated the said view observing that the appellate court in accused should bear in mind that the trial court’s acquittal WWW.LIVELAW.IN demeanour of the witnesses and was in a better position to 17. In State of Rajasthan v. Naresh9 SCC 368 the Court 18. In State of U.P. v. Banne4 SCC 271 this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High ii) The High Court’s conclusions are contrary to evidence and iii) The entire approach of the High Court in dealing with the iv) The High Court’s judgment is manifestly unjust and case when both the Sessions Court and the High Court have A similar view has been reiterated by this Court in Dhanapal v 19. Thus the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the court’s acquittal bolsters the presumption of his innocence held to be perverse has been dealt with and considered in WWW.LIVELAW.IN “20. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration so outrageously defies logic as to suffer from the vice of irrationality.4 SCC 635 Excise and Taxation Officer­cum­Assessing Authority v v. CCE 1994 Supp. SCC 665 Gaya Din v. Hanuman Prasad It is further observed after following the decision of evidence or thoroughly unreliable evidence and no reasonable person would act upon it the order would be perverse. But if could be relied upon the conclusions would not be treated as 5.3 In the recent decision of Vijay Mohan Singh this Cr.P.C. and the interference by the High Court in an appeal this Court right from 1952 onwards. In paragraph 31 it is on record. However the High Court while reversing the acquittal acquitting the accused. Confirming the judgment of the High evidence independently and come to its own conclusion Ordinarily the High Court would give due importance to the proper appreciation of the evidence. This rule will not be applicable in the present case where the Sessions Judge has made an absolutely wrong assumption of a very material and Court reversed the order of acquittal passed by the learned trial evidence on record however the High Court did not record its by the High Court convicting the accused on reversal of the acquittal passed by the learned trial court after being satisfied perverse and suffered from infirmities this Court declined to interfere with the order of conviction passed by the High Court “8. We have perused the judgment under appeal to ascertain whether the High Court has conformed to the aforementioned principles. We find that the High Court has not strictly proceeded in the manner laid down by this Court in Ramesh Babulal Doshi v. State of Gujarat 9 SCC 225 viz. first High Court has rendered a well­considered judgment duly appeal We think not. In our view in such a case the approach an appellate court which has reversed the order of acquittal WWW.LIVELAW.IN passed by the trial court should be to satisfy itself if the approach of the trial court in dealing with the evidence was is free from those infirmities if so to hold that the trial court judgment warranted interference. In such a case there is the appellate court in the order of acquittal was not justified the acquittal alone has to stand. Having regard to the above grievance of the learned counsel appearing on behalf of the Court refused to set aside the order of conviction passed by the conclusion arrived at by the learned Sessions Judge on several Sessions Judge was not justified in discarding the Court therefore was fully entitled to reappreciate the evidence and the eyewitnesses and opined that reasons adduced by the trial evidence made by the trial court was manifestly erroneous and therefore it was the duty of the High Court to interfere with an 31.3. In Atley v. State of U.P. AIR 1955 SC 807 in para 5 this the judgment of the trial court being one of acquittal the High Court should not have set it aside on mere appreciation of the evidence led on behalf of the prosecution unless it came to the WWW.LIVELAW.IN It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion of course judgment of acquittal passed by the trial court which had the to the riders that the presumption of innocence with which the appellate stage and that the appellate court should attach due in mind and comes to a contrary conclusion the judgment cannot cited at the Bar namely Surajpal Singh v. State AIR 1952 SC 52 that the High Court was not justified in reviewing the entire 31.4. In K. Gopal Reddy v. State of A.P.1 SCC 355 this Court has observed that where the trial court allows itself to be reasons and takes a view of the evidence which is but barely circumstances taken cumulatively should form a chain so evidence should not only be consistent with the guilt of the “22. In Krishnan v. State 15 SCC 430 this Court after considering a large number of its earlier judgments observed as “15. … This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence such be drawn must be cogently and firmly established iii) the circumstances taken cumulatively should form a chain so be complete and incapable of explanation of any other should not only be consistent with the guilt of the accused but SCC 116 while dealing with circumstantial evidence it has been cured by false defence or plea. The conditions precedent before conviction could be based on circumstantial evidence must be WWW.LIVELAW.INthe facts so established should be consistent only with the hypothesis of the guilt of the accused that is to say they should iii) the circumstances should be of a conclusive nature and any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human 24. In Subramaniam v. State of T.N 14 SCC 415 while at a conclusion that the husband and husband alone was responsible therefor. The evidence produced by the prosecution appellant unsustainable.this Court has “23. In cases where evidence is of a circumstantial nature the should in the first instance be fully established. Each fact sought this principle a distinction must be made between facts called primary or basic on the one hand and inference of facts to be the court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved the question whether that fact leads to an inference of guilt of the there should not be any missing links in the case yet it is not WWW.LIVELAW.IN from the proved facts. In drawing these inferences the court must the purpose of conviction the court has to consider the total cumulative effect of all the proved facts each one of which hypothesis of the guilt of the accused and should exclude every mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone it must exclude each and every hypothesis suggested by the accused howsoever extravagant and fanciful it might be. There must be a chain of evidence so in all human probability the act must have been done by the accused where various links in chain are in themselves complete decisions to the facts of the case on hand it is to be considered whether in the facts and circumstances of the case the High 6.1 In the present case the prosecution as well as the High PW5 PW6 and PW7. However it is required to be noted that on appreciation of the entire evidence on record the trial Court on 9.9.2010 and thereby did not believe the recovery of knife the accused and that too recovered on 9.9.2020. However the observing that those contradictions were minor contradictions and therefore the learned trial Court was not justified in acquitting the accused solely on the basis of such minor contradictions. However on considering the entire evidence on learned trial Court. The contradictions which came to be WWW.LIVELAW.IN and PW18­IO on the basis of disclosure statements made by the accused on 8.9.2010 the knife and rope were recovered on 9.9.2010. However PW4 and PW5 have categorically stated in their deposition that the police brought the sniffer dogs on 2.9.2010 and the sniffer dogs recovered rope knife etc. on 2.9.2010. So according to even PW4 and PW5 the rope and noted that the accused were arrested on 8.9.2010 and prior also admitted in the cross­examination that this fact has not WWW.LIVELAW.IN sniffer dog had traced the strings Ex. P52 knife Ex. P59 and vest Ex. P54. However PW4 and PW5 in their deposition have categorically stated that the knife and rope were recovered on The aforesaid cannot be said to be minor contradictions. Therefore the trial Court was justified in not believing the disclosure statements of the accused and the recovery of the knife rope etc. on 9.9.2010 as alleged by the prosecution. From evidence it emerges that the knife rope and vest were recovered on 2.9.2010 i.e. much prior to 8.9.2010 from the jeep also create serious doubts. According to the went to Chandigarh and recovered the jeep in the presence of 3 & 4) Cr.P.C. Even he did not comply with the provisions of WWW.LIVELAW.IN alone may not be a ground to acquit the accused. However where recovery is seriously doubted non­compliance of the Even the recovery of the mobile phone from the jeep belonging to PW7 also creates doubt. Though PW7 has stated that his mobile was stolen or cheated he never filed any complaint earlier. Even the IO has not tried to have the call details of the mobile. He has not tried to verify from the call to crates being sold to PW6 is concerned it is required to be is found to be suspicious and doubtful. Cogent reasons have concerned it is true that the absence of proving the motive case. However at the same time as observed by this Court in the case of Babuabsence of motive in a case depending accused. In paragraphs 25 and 26 it is observed and held as “25. In State of U.P. v. Kishanpal 16 SCC 73 this Court examined the importance of motive in cases of circumstantial “38. … the motive is a thing which is primarily known to the importance in a case where direct evidence of eyewitnesses is the evidence of the eyewitnesses is clear and reliable the absence or inadequacy of motive cannot stand in the way of depending on circumstantial evidence is a factor that weighs in WWW.LIVELAW.IN 10. Considering the aforesaid facts and circumstances of the case the findings recorded by the learned trial Court which were trial Court. Under the circumstances the impugned judgment present appeal succeeds. The impugned judgment and order the learned Additional Sessions Judge Fast Track Court Kullu Himachal Pradesh in Sessions Trial No. 05 of 2011 is hereby WWW.LIVELAW.IN restored. The accused­Appellants namely Anwar Ali son of

Court cannot condone the delay beyond the period of ninety days as stipulated under Rule 4 of DHC(OS) Rules, 2018: High Court of New Delhi

The Court cannot condone the delay beyond the period of ninety days as stipulated under Rule 4 of DHC(OS) Rules. There is no provision to the aforesaid effect. Once it has been held that the provisions of Rule 4 of DHC(OS) Rules are mandatory and, the Court does not have jurisdiction to condone the delay beyond a period of ninety days. This was held in MR. HARJYOT SINGH v. MRS. MANPREET KAUR [IA No. 3129/2020 & IA No. 2945/2020] in the High Court of New Delhi by a single bench consisting of JUSTICE VIBHU BAKHRU. Facts are that the plaintiff had filed a suit in which the Court had directed issuance of summons as well as notice of the applications filed by the plaintiff seeking interim relief under Order XXXIX Rule 1 and 2 of CPC. The Court had passed ex-parte ad-interim orders. After which the defendant filed the written statement along with the application, seeking condonation of delay in filing the same. The counsel for the plaintiff submitted that the written statement was filed beyond the period of 120 days from the receipt of summons. He referred to Rule 4 of Chapter-VII of the DHC Rules and submitted that although the court could condone the delay for a period of 90 days, the delay beyond the said period cannot be condoned. The defendant had not established that she was prevented by sufficient cause from filing the written statement within the period as stipulated in Rule 4 of the DHC Rules. The learned counsel for the respondent contended in noncommercial suits, the Court had the discretion to condone the delay in filing the written statement even beyond the period as prescribed under Order VIII Rule 1 of CPC. He relied on the decision of the Supreme Court in Desh Raj v. Balkishan (Dead) through LR’s Ms. Rohini. And he contended that the defendant had not been served with the summons in the suit. The court in order to discuss the limited discretions in condoning the delay that is under the purview of a court referred to the judgement of Ram Sarup Lugani and Another v. Nirmal Lugani and Others., wherein the following observations were made, “The Division Bench of this Court had interpreted the words ‘but not thereafter as used in Rule 4 of the DHC(OS) Rules, as limiting the jurisdiction of this Court to condone the delay only to the period as mentioned, which in the case of the written statement is 90 days. The court had also considered the decision of the Supreme Court in Desh Raj v Balkishan”

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Judgment : 12.04.2021 CS(OS) 444 2019 & IA 11932 2019MR. HARJYOT SINGH Plaintiff Through Mr Amit Gupta Advocate with Mr Hari Shankar Mahapatra Advocate. MRS. MANPREET KAUR Defendant Through Mr Hrishikesh Baruah Ms Radhika Gupta Advocates. HON BLE MR. JUSTICE VIBHU BAKHRU Hearing held through video conferencing] VIBHU BAKHRU J.IA No. 3129 2020 & IA No. 2945 2020 The has filed the above captioned application seeking condonation of delay of eighty six days in filing of the written statement by the applicant defendant. The plaintiff has also filed an application for removing the defendant’s written statement and documents filed along with it from the record on the ground that the same has been filed beyond the period as stipulated under Chapter VII of the Delhi IA 2945 2020 & IA 3129 2020 High CourtRules 2018Thus the principal issue involved in these applications is common whether the delay in filing of the written statement ought to be condoned. At this stage before proceeding further it would be relevant to set out the context for addressing the controversy. The plaintiff has instituted the above captioned suit seeking a decree of permanent injunction restraining the defendant from abusive threatening intimidating or defamatory content in any manner. The plaintiff also seeks a decree restraining the defendant from entering into his work place court room and chambers and all other places where he is required to be present for discharge of his official duties. In addition the plaintiff also seeks damages against the defendant. The said suit was listed before the Court on 30.08.2019. On that date this Court directed issuance of summons as well as notice of the applications filed by the plaintiff seeking interim relief under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure 1908[IA 11932 2020]. The summons were directed to be served by all modes including dasti as well as electronic modes returnable on 16.09.2019 The Court also found that the plaintiff had made out a case for an ex parte ad interim injunction and accordingly passed ad interim orders in the following terms: IA 2945 2020 & IA 3129 2020 “6. The defendant till the next date of hearing is publishing sending circulating posting propagating any kind of abusive or threatening or intimidating or defamatory content in any manner whatsoever either by print or electronically to the plaintiff or to the plaintiff’s relatives friends staff colleagues and their spouses as well as other residents of Saket Court Residential Complex and from visiting the workplace of the plaintiff and more specifically from entering the court room and chamber and all other places where the plaintiff has to be present in discharge of his official duties. It is however made clear that the aforesaid order 7. will not amount to a restraint in any manner whatsoever on the defendant taking defending legal proceedings and or taking any steps in aid thereof. It is further ordered that the plaintiff also till the 8. hearing publish send circulate post propagate any kind of abusive or threatening or intimidating or defamatory content in any manner whatsoever either by print or electronically to the defendant or to the defendant’s relatives and friends and shall not visit any place where the defendant works or visits in the normal course. However again this would not amount to a restraint in any manner on the plaintiff from taking defending legal proceedings and or taking any steps in aid thereof. Provisions of Order XXXIX Rule 3 of the Code 9. of Civil Procedure 1908be complied forthwith. 10. Dasti under signatures of the Court Master.” IA 2945 2020 & IA 3129 2020 The copy of the suit and the application preferred under Order XXXIX Rule 1 & 2 of the CPC was served on the defendant on 05.09.2019. The counsel for the plaintiff also served the plaint the said application and the order dated 30.08.2019 by electronic modeto the defendant on 12.09.2019. Although the plaintiff contends that the summons were served on the defendant on 05.09.2019 by speed post and on 12.09.2019 by electronic modes however this was disputed by the defendant. Although the defendant had admitted in its application that summons were served as foresaid it is now contended that the advocate with whose assistance the said application was drafted was not aware of the Original Side practice and therefore had erroneously drafted that the summons were served. However it is not disputed that the defendant was served with a copy of the plaint as well as the application under Order XXXIX Rule 1 & 2 CPC on 05.09.2019 and once again by email on 12.09.2019. The matter was thereafter taken up by the Court on 16.09.2019. The defendant was duly represented by counsel including a Senior Advocate. On that date the learned Senior Counsel appearing for the defendant submitted that the disputes between the parties should be resolved amicably and the counsel for the plaintiff concurred with the same. In view of the above the Court adjourned the hearing to 23.09.2019 and directed that the same be listed in Chambers. IA 2945 2020 & IA 3129 2020 10. On 23.09.2019 a Coordinate Bench of this Court met the parties along with their counsel in Chambers. This was obviously with a view to explore the possibility of an amicable settlement. The matter was thereafter directed to be listed on 27.09.2019. The order passed on 23.09.2019 records that the ‘substantial parleys have been held inter se the counsels with the counsels and also individually with the parties’. The matter was thereafter directed to be listed on 01.10.2019. The order passed on that date records that “Further parleys have been held with the counsels” and at the request of the parties the matter was directed to be listed on 15.10.2019. The matter was not taken up on 15.10.2019 and was re notified on 22.10.2019 as the Court was not sitting on that date. 11. On 22.10.2019 the Court recorded that “the senior counsel for the defendant states that no settlement is possible and the matter may be posted for hearing”. The Court noticed that the pleadings had not been completed till then and accordingly directed that the written statement be filed within a period of four weeks as sought by the defendant. Replication was directed to be filed within a period of four weeks thereafter. 12. Thereafter on 14.11.2019 the defendant filed an application under Order VII Rule 11 of CPC inter alia praying that the plaint be rejected. The defendant further prayed that leave be granted to the applicant to file the written statement only in the event that her application was rejected. The defendant’s prayers were not acceded to and by a judgment dated 18.11.2019 the defendant’s IA 2945 2020 & IA 3129 2020 application was dismissed as unmerited. 13. The defendant filed an appeal against the said judgment dated 18.11.2019 before the Division Bench of this Court 262 2019]. While the appeal was pending the defendant filed the written statement on 15.02.2020 along with the application seeking condonation of delay in filing the same. 14. Mr Gupta learned counsel appearing for the plaintiff submitted that the written statement was filed beyond the period of 120 days from the receipt of summons and therefore the delay in filing the same could not be condoned. He referred to Rule 4 of Chapter VII of the DHC Rules and submitted that although the court could condone the delay for a period of 90 days the delay beyond the said period cannot be condoned. He further submitted that in any event the defendant had not established that she was prevented by sufficient cause from filing the written statement within the period as stipulated in Rule 4 of the DHC Rules. 15. Mr Hrishikesh Baruah learned counsel appearing for the defendant countered the aforesaid submissions. First he submitted that in non commercial suits the Court had the discretion to condone the delay in filing the written statement even beyond the period as prescribed under Order VIII Rule 1 of CPC. He referred to the decision of the Supreme Court in Desh Raj v. Balkishan through proposed Legal Representative Ms Rohini : 2 SCC 708 in support of his contention. IA 2945 2020 & IA 3129 2020 16. Second he submitted that there was no delay in filing of the written statement as the defendant had not been served with the summons in the suit. He submitted that the time for filing the written statement would commence only on service of summons which in the present case had not been done. He stated that the plaintiff had erroneously stated in the applications that the summons had been effected by speed post on 05.09.2019. However on further enquiries from the Registry it was found that the summons were not issued till 07.09.2019. Further notings as available on the records of the Registry indicate that the said summons remained unserved. Next he submitted that the service of summons through email by the counsel for the plaintiff was also not in accordance with law. He submitted that service through electronic mails was required to the effected in accordance with the Delhi Courts Service of Processes by Courier Fax and Electronic Mail ServiceRules 2010. He stated that in terms of Rule 12 of the said Rules a party desiring to send process through email is required to submit an affidavit providing the email address to the Court and only the presiding officer or any officer authorized can issue the email on the designated templates. He submitted that in the present case no affidavit had been filed on behalf of the plaintiff in terms of Rule 12 of the said Rules and therefore service of summons by the counsel for the plaintiff was no service in law. 17. He contended that the summons in the present case would be deemed to have been served on 22.10.2019 when the Court had IA 2945 2020 & IA 3129 2020 directed the defendant to file the written statement within a period of four weeks. He referred to the decision of the coordinate bench of this Court in Red Bull AG v Pepsico India Holdings Pvt. Ltd. & Anr. : 2019DRJ 398 and submitted that mere appearance on behalf of the defendant before the Court would not constitute receipt of summons. 18. Third he submitted that the records indicated that the parties were also endeavouring to resolve the disputes amicably and therefore time spent by them in such endeavour was required to be excluded. He submitted that from 16.09.2019 to 22.10.2019 this Court was exploring the possibility of an amicable settlement between the parties and therefore the said period was required to be excluded. He stated that even before the Division Bench parties had been called by the Bench in order to explore the possibility of an amicable settlement between the parties. 19. Fourth he submitted that the defendant had filed an application under Order VII Rule 11 CPC seeking rejection of the plaint. In the said application the defendant had prayed that she be permitted to file a written statement only after the decision in the said application. The said application was dismissed on 18.11.2019 but thereafter the defendant had preferred an appeal and while the said appeal was pending before the Division Bench the defendent had filed the written statement. The said appeal was rejected on 12.03.2020. I have heard the learned counsel appearing for the parties. IA 2945 2020 & IA 3129 2020 21. At the outset it is relevant to refer to Rule 4 of the DHCRules. The same is set out below: “4. Extension of time for filing written statement. If the Court is satisfied that the defendant was prevented by sufficient cause for exceptional and unavoidable reasons in filing the written statement within 30 days it may extend thereafter. For such extension of time the party in delay shall be burdened with costs as deemed appropriate. The written statement shall not be taken on record unless such costs have been paid deposited. In case the defendant fails to file the affidavit of admission denial of documents filed by the plaintiff the documents filed by the plaintiff shall be deemed to be admitted. In case no written statement is filed within the extended time also the Registrar may pass orders for closing the right to file the written statement.” It is clear from the above that this Court has limited discretions in condoning the delay in filing of the written statement. The same can be condoned only for a period of 90 days ‘but not thereafter’. This issue is no longer res integra in view of the decision of the Division Bench of this Court in Ram Sarup Lugani and Another v. Nirmal Lugani and Others : 2020 SCC OnLine Del 1353. It is also relevant to mention that the Division Bench had also clarified that the decision of the Supreme Court in Desh Raj v Balkishanwould not be applicable as in that case the Supreme Court had no occasion to IA 2945 2020 & IA 3129 2020 examine the Delhi High Court Rules. In Desh Raj’s case the Supreme Court had clearly held that the time lines provided for filing of the written statement in a non commercial suit were only directory and not mandatory. It was earnestly contended by Mr Baruah that the said standard would be equally applicable in interpreting Rule 4 of the DHCRules. The said contention cannot be accepted as the decision of the Division Bench in Ram Sarup Lugani is unambiguous. The Division Bench of this Court had interpreted the words ‘but not thereafter’ as used in Rule 4 of the DHC(OS) Rules as limiting the jurisdiction of this Court to condone the delay only to the period as mentioned which in the case of written statement is 90 days. The court had also considered the decision of the Supreme Court in Desh Raj v Balkishan is binding on this Court. 24. The contention that the defendant has not received the summons also cannot be accepted. First of all it is relevant to note that the defendant in her applicationhad expressly stated that the summons were effected through speed post on 05.09.2019 and the electronic service was effected by way of an email dated 12.09.2019 by the learned counsel for the plaintiff. There is a clear admission that the defendant had received the summons on 05.09.2019 and by email on 12.09.2019. It is only as a matter of afterthought that the defendant had conducted an inspection of the records available with the Registry of this Court and has built up a case of non receipt of summons on the IA 2945 2020 & IA 3129 2020 basis of the notings made in the records of the Registry. Having affirmed that she had received the summons it is not open for the defendant to contend that she had not received them. Second there is no dispute that the defendant had received a copy of the plaint along with the copy of the order passed by this Court as well as the documents filed by the plaintiff. The defendant had also received the same by email. The returnable date for the summons was 16.09.2019 and on that date the defendant was present in Court. She was fully aware of the case against her as well as the fact that the Court had by the order dated 31.08.2019 directed issuance of summons and had passed ad interim orders. The defendant thus had full knowledge of the case instituted against her and that she was required to answer the claims. According to Mr Baruah the summons were deemed to be served on 22.10.2019 when this Court directed the written statement to be filed. Plainly the defendant cannot decide as to when the summons are deemed to be served on her. The defendant was fully aware of the order dated 30.08.2019 passed by this Court whereby this Court had directed issuance of summons and had passed ad interim relief. She was also aware that she had received copy of the plaint and the application along with the documents filed by the plaintiff pursuant to the orders passed by this court. She had thereafter appeared before this Court on 16.09.2019. This is sufficient to hold that the summons are deemed to have been served on her at least on 16.09.2019. 25. The defendant now claims that she had erroneously admitted in the application filed by her that she had received the summons on IA 2945 2020 & IA 3129 2020 05.09.2019 by speed post and by email on 12.09.2019. This is on account of an erroneous understanding by her counsel who although was familiar with the appellate side procedure in the Supreme Court but has no knowledge of the proceedings on the Original Side. Plainly this Court finds it difficult to accept the said explanation. Even if the defendant is permitted to resile from her solemn affirmation of having received the summons on 05.09.2019 and on 12.09.2019 it is clear that the summons were deemed to have been served when she appeared along with her counsel and a Senior Counsel on 16.09.2019 26. Third the manner as to how summons can be served is not inflexible. At this stage it is also relevant to refer to Section 27 of CPC which reads as under: “27. Where a suit has been duly instituted a summons may be issued to the defendant to appear and answer the claim and may be served in manner prescribedis misplaced. In that case the suit came up for hearing before the Court for the first time on 28.08.2018. Although no summons had been issued to the defendants the defendants had entered appearance on that date. The Court noted that the defendant may have entered appearance on noticing the matter in the cause list on the first date of hearing. On the first date of hearing the plaintiff requested for an adjournment on the ground that there was a possibility of settlement between the parties. On the next date of hearing that is on 29.04.2019 the parties had submitted that they would try and settle the matter through Mediation and were accordingly directed to appear before the Delhi High Court Mediation and Conciliation Centre. The mediation proceedings failed on 28.11.2018 and the defendants filed the written statement on 06.03.2019. In the given facts the Court found that there was no formal order issuing summons to the defendants or directing them to file the written statement. The Court referred to the provisions of Order V Ruleand Order VII Ruleof CPC as well as Chapter 4 Rule 7 and Chapter 6 Rule 1(f) of the DHCRules and observed as under: “Perusal of the aforesaid statutory provisions would show that when a suit is instituted summons may IA 2945 2020 & IA 3129 2020 be issued to the defendant to appear and answer the claim. Hence the Court has to ensure that the suit has been duly instituted and thereafter the Court may issue summons on the defendant.” 29. The Court noticed that there were no formal orders issuing summons. It further held as under: “A perusal of the orders of this court dated 28.08.2018 and 24.09.2018 do not lead to a conclusion that any finding was recorded by the court that the suit has been duly instituted and the defendant should now answer the claim and file the in his defence. Further no written statement conclusion can be reached from the reading of the two orders that the defendant has by his conduct waived his right to have the summons served upon him. The orders on the contrary indicate that that instead of the adjudicatory process for the time being the parties had adopted a mechanism to settle the matter firstly by their own efforts and thereafter through a formal process of mediation which was to be undertaken under the aegis of the Delhi High Court Mediation and Conciliation In the present case there is no ambiguity in the order dated 30.08.2019. The Court had examined the plaint directed issuance of summons and also passed ad interim orders. Clearly the defendant could be in no doubt that the court had found that the suit was properly IA 2945 2020 & IA 3129 2020 instituted and she was required to answer the plaint. Thus the summons stood served on her at least when she appeared before the court on 16.09.2019. This Court is unable to accept that the summons were deemed to have been served only on 22.10.2019 when time was sought on her behalf to file a written statement and not earlier. In view of the above it is clear that the time of 30 days for filing of the written statement expired on 04.10.2019. In any view the defendant is deemed to have been served on 16.09.2019 and therefore the period for filing of the written statement expired on 15.10.2019. 32. However the parties were attempting to resolve their disputes as is evident from the orders passed by this Court on 16.09.2019 23.09.2019 27.09.2019 01.10.2019 and 22.10.2019. Thus there is a good ground to condone the delay in filing of the written statement commencing for the period till 36 days that is till 22.10.2019. In fact this Court on 26.10.2019 granted the defendant four weeks time to file the written statement “as sought”. Thus the order dated 22.10.2019 clearly does indicate that the defendant had sought four weeks time to file the written statement which was granted. There was thus no occasion for the defendant thereafter to refrain from filing the written statement within the period as granted. 34. The contention that the delay in filing the written statement is liable to be condoned because the defendant had filed an application under Order VII Rule 11 CPC is also unpersuasive. It is relevant note that in its application under Order VII Rule 11 CPC the defendant had inter alia prayed that leave be granted to her to file the written statement only in the event the said application is rejected by this Court. The said prayer is made on the strength of the averments as contained in Paragraph 16 of the said application and the same is set out below: “16. The Applicant states and submits that the established legal position is this that in order to decide an application under Order VII Rule 11(d) of the CPC the averments in the plaint are germane the pleas taken by the Defendant in the Written Statement is wholly irrelevant at that stage. Applicant seeks leave of this Hon’ble Court to file the Written Statement only in the event that the present application is rejected by this Hon’ble Court.” these circumstances 35. Plainly the reason that defendant’s application under Order VII Rule 11 of CPC could have been considered without reference to a written statement did not by any means absolve her to file the written statement as directed. More importantly no such prayer was granted. The order dated 18.11.2019 whereby the said application was rejected does not indicate that the learned counsel for the defendant had even pressed for the aforesaid relief. Clearly by making a prayer before the Court the defendant could not have proceeded on the basis that the same stood allowed or it provided her a good ground to refrain from filing the Written Statement. IA 2945 2020 & IA 3129 2020 36. As noticed above the said application was rejected by a judgment dated 18.11.2019. The defendant claims that the said judgment was uploaded on the website of this Court on 24.11.2019. However the defendant did not file the written statement immediately thereafter either. 37. The written statement has been filed on 15.02.2020. This was beyond the period one hundred and twenty days from the date of receipt of summons. It was also beyond the period of one hundred and twenty days from the date from 16.09.2019. 38. Mr Baruah’s contention that the defendant could not have been expected to file the written statement while the parties were endeavouring to resolve the disputes amicably is merited. As noticed above the same is a sufficient ground for condoning the delay in filing the written statement. In Red Bull AG v Pepsico India Holdings Pvt. Ltd & Anr. Dr Sukhdev Singh Gambhir v Shri Amrit Pal Singh & Others : 105 DLT 184 Telefonaktiebolaget L. M. Ericsson v Lava International Limited : 226 DLT 342 this court had condoned the delays on account of the time spent by the parties in endeavouring to resolve the disputes in Mediation. However the time spent by the parties in Mediation cannot be excluded from the time stipulated for filing of the written statement or replication. As noticed above the defendant is required to file the written statement within a period of thirty days from the date of receipt of summons. This Court can condone a delay of ninety days beyond that period provided that the defendant satisfies this Court that it was prevented IA 2945 2020 & IA 3129 2020 by ‘sufficient cause for exceptional and unavoidable reason’ in filing the written statement within the period of 30 days. The fact that the parties were attempting to resolve the disputes would be a sufficient cause to condone the delay. However the Court cannot condone the delay beyond the period of ninety days days as stipulated under Rule 4 of DHC(OS) Rules. There is no provision to the aforesaid effect. Once it has been held that the provisions of Rule 4 of DHC(OS) Rules are mandatory and the Court does not have jurisdiction to condone the delay beyond a period of ninety days as has been held by the Division Bench of this Court in Ram Sarup Lugani and Anotherthe question of condoning the delay beyond that period for any reason whatsoever is not permissible. 39. This Court is unable to accept the contention that the delay in filing the written statement on the part of the defendant can be 40. Having stated the above this Court also considers it apposite to consider the question whether the delay ought to have been condoned for the reasons as provided by the defendant. As noticed above the defendant had sought four weeks time to file the written statement which was granted by this Court on 22.10.2019. Despite being granted the time as sought for the defendant did not file the written statement within the said period of four weeks. But she did file an application under Order VII Rule 11 CPC praying that she be granted leave to file the written statement if and when the application was dismissed. As noticed above this prayer was not pressed. But the defendant did not IA 2945 2020 & IA 3129 2020 file the written statement. The application was dismissed on 18.11.2019. Even thereafter the defendant did not file the written statement within the period of four weeks. The defendant’s application seeking condonation of delay was rejected on 18.11.2019. However the defendant did not file the written statement immediately thereafter or within a period of four weeks as had been sought earlier. 41. The application filed by the defendant provides no explanation or any exceptional circumstances which prevented her from filing the written statement. However the defendant had sought to explain the delay by stating that the certified copy of the order dated 18.11.2019 was made available to her on 20.12.2019 and she preferred an appeal immediately thereafter on 21.12.2019. It is difficult to appreciate as to how that prevented her from filing the written statement within the said period. The defendant had the advice of counsel and a senior counsel and obviously had the wherewithal to file the written statement. In fact she preferred an appeal against the order dated 18.11.2019 immediately within a period of one day from receiving the certified copy that is on 21.12.2019. Thus there is no ground for her not to have filed the written statement prior to that date. Indisputably the defendant was aware on 18.11.2019 that her application under Order VII Rule 11 CPC had been dismissed even though the copy of the order may have been uploaded on the website of this Court on 05.12.2019 262 2019) was listed before the Division Bench of this Court on 24.12.2019 but was adjourned to 15.01.2020. The defendant claims that on 24.12.2019 the Bench had suggested to the parties to settle their disputes again. The order dated 24.12.2019 passed by the Division Bench of this Court in proceedings relating to FAO 262 2019 does not indicate any such suggestion. The defendant further states that the parties had met on two occasions to discuss the possible resolution after 24.12.2019 but they could not arrive at any such amicable resolution and the said fact was brought to the knowledge of the Division Bench. Thereafter the defendant’s appeal was listed before the Division Bench on multiple occasions but could not be taken up for hearing because some of the Judges had recused themselves from hearing the matter. 44. As to how these facts afford the defendant any ground for seeking condonation of delay is difficult to accept. It is also important to note that the defendant had averred that for the reasons stated in the application she had refrained from filing the Written Statement. Thus she was not prevented from doing so but had deliberately delayed filing the Written Statement. It is important to refer to the language of Rule 4 of the DHC(OS) Rules which expressly stipulates that the Court must be satisfied that the defendant was prevented from a sufficient cause for exceptional and unavoidable IA 2945 2020 & IA 3129 2020 reasons. First of all there are no exceptional or unavoidable reasons that prevented the defendant from filing the written statement within the period of four weeks as sought for and as granted by the Court on 22.10.2019. Even assumingthat the defendant had laboured under a belief that since she had sought for a prayer in an application it had automatically provided her a cause not to file the written statement however there was nothing to prevent the defendant from filing a written statement within a period of four weeks immediately after her application under Order VII Rule 11 was dismissed on 18.11.2019 or within a period of four weeks thereafter. 46. Rule 4 of the DHC Rules is a rule of procedure and insofar as expedient a liberal view in condoning the delay ought to be taken by the Court however that does not mean that the said Rule can be completely ignored or should be interpreted to render it meaningless. In the present case even if it is accepted that this Court has the jurisdiction to condone the delay in filing the written statement beyond a period of 90 daysthere are grounds for doing so in this case. 47. Thus even if Mr Barhua’s contention that the defendant was deemed to have been served with the summons on 22.10.2019 is accepted there are no grounds for condoning the delay beyond a period of 30 days from that date. In view of the above the defendant’s application IA 2945 2020 IA 2945 2020 & IA 3129 2020 seeking condonation of delay in filing the written statement is rejected. Consequently the plaintiff’s application for removing the written statement on record and documents filed therewith is allowed. VIBHU BAKHRU J APRIL 12 2021 IA 2945 2020 & IA 3129 2020

Excess of entitlement while making mistakes in the payments to the employees: High Court of Shimla

It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. This honorable judgement was passed by High Court of Shimla in the case of Bahadur Singh Versus State of Himachal Pradesh and others [CWPOA No. 122 of 2020] by The Hon’ble Ms. Justice Jyotsna Rewal Dua, Judge. The petitioner had challenged the action of respondents in ordering recovery of alleged excess wages paid to him for the period 31.03.2012 till 23.11.2012. The petitioner was appointed as Part Time Water Carrier in respondent-Education Department, the Secretary to the Government of Himachal Pradesh issued a letter in respect to conversion of Part Time Water Carriers as daily wagers. Petitioner had admittedly completed nine years of continuous service by. As per averments made in the reply, he was given daily wage status w.e.f 23.11.2012. Arrears were paid to him w.e.f. 31.3.2012. Four years later, respondent directed other respondent to scrutinize the matters in respect of any over payment in the form of arrears to those Part Time Water Carriers, whose services were converted into that of daily wagers. On the basis of this communication, respondent issued a recovery notice, directing Block Elementary Education Officer concerned to recover the excess amount in lum sump from all such part time water carriers converted into daily wagers. Subsequent to this, after verification, respondent vide letter directed Centre Head Teacher of the concerned schools to deposit the excess amount paid to the part time water carriers named therein, within a week. In this communication, name of the petitioner figured at Serial No.38. An amount of Rs.20,116/- is stated to be recoverable from him on account of excess payment of wages to him for the period in question. In support of his contentions, learned counsel relied upon (2015) 4 SCC 334 titled State of Punjab and others Vs. Rafiq Masih and others, State of Punjab and others Vs. Rafiq Masih and other, High Court of Punjab and Haryana and Others Vs. Jagdev Singh and Syed Abdul Qadir & Ors Vs. State of Bihar & Ors. The court opinioned that, “It is not the case of the respondents that the petitioner had misrepresented regarding any relevant factual position. Arrears on account of conversion of the petitioner’s part time services as daily wage, were paid by the respondents themselves to the petitioner. Even without going into the admissibility of the amount in question to the petitioner, it can be safely concluded that the case of the petitioner squarely falls within category of the Rafiq Masih’s case (supra).”

Hig h C o urt of H.P on 19 04 HCHP 1 HON’BLE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWPOA No. 1220 Decided on: 19.04.2021 Bahadur Singh .…......Petitioner Versus State of Himachal Pradesh and others ........Respondents ________________________________________________________ Coram: Ms. Justice Jyotsna Rewal Dua Judge Whether approved for reporting 1 For the petitioner : Mr. Prem P. Chauhan Advocate. For the respondents : Mr. Anil Jaswal Additional Advocate General with Mr. Amit Dhumal Deputy Advocate General. _________________________________________________________ Jyotsna Rewal Dua Judge The petitioner has challenged the action of respondents in ordering recovery of alleged excess wages paid to him for the period 31.03.2012 till 23.11.2012. 2 Facts 2(i) The petitioner was appointed as Part Time Water Carrier in respondent Education Department on 23.9.2002. On 22.08.2012 the Secretaryto the Government of Himachal Pradesh issued a letter in respect to conversion of Part Time Water Carriers as daily wagers. Relevant portion of this letter reads as under: 1 Whether reporters of Local Papers may be allowed to see the judgment Yes. Hig h C o urt of H.P on 19 04 HCHP 2 “I am directed to refer to the subject cited above and to say that the matter regarding policy for conversion of Part Time Water Carriers on daily wages in Education Department was under consideration of the Government for some time. Now it has been decided by the Government to regulate the services of Part Time Water Carriers of the Department of Education in the following manners: 1. The Part Time Water Carriers of the Department will be converted as Water Carriers cum Peon on daily waged basis after completion of 10 years of continuous service as per policy guidelines of Department of Personnel issued from time to time for all other State Govt. departments. This will be revised to the period of 9 years as and when the same is issued by the DOP. 2. 983 numbers of Whole Time Contingent Paid posts of the department will be converted upgraded as the regular Class IV employees. 3. The services of PTWCs converted as Water Carrier cum Peon on daily waged basis will be regularized as regular Class IV after completion of 8 years as per DOP policy issued from time to time for all other state Government department .” 2(ii) A policy dated 19.9.2012 regulating the services of Part Time workers provided following in respect of their conversion into daily wagers: “In continuation of this Department’s letter of even number dated 02.06.2012 I am directed to say that the matter regarding conversion of part time workers to daily wage basis was under active consideration of the Government for some time past. Now it has been decided by the Government that Part Time workers having completed nine years continuous service as on 31st March 2012 in all Govt. Departments will be converted to daily wager subject to the observance of the following terms and conditions: Part Time Class IV employees having completed nine years of continuous services as on 31st March 2012 will only be made daily wager Posts vacated by such part time employees shall stand abolished.The orders to this effect will be issued at the level of Head of Departments after verifying the facts.For the determination of date of birth of the candidate concerned criterion as laid down in Rule 7.1 of HPFR Vol I shall be observed.The conversion to daily wager status shall only be from prospective effect i.e. after the date the orders are issued after completion of all codal formalities ...” 2(iii) Petitioner a Part Time Water Carrier appointed on 23.09.2002 had admittedly completed nine years of continuous service by Hig h C o urt of H.P on 19 04 HCHP 3 31.3.2012. As per averments made in the reply he was given daily wage status w.e.f 23.11.2012. Arrears were paid to him w.e.f. 31.3.2012. Four years later i.e. on 24.6.2016 respondent No.2 directed respondent No.3 to scrutinize the matters in respect of any over payment in the form of arrears to those Part Time Water Carriers whose services were converted into that of daily wagers. On the basis of this communication respondent No.3 issued a recovery notice dated 27.7.2016directing respondent No.4 Block Elementary Education Officer concerned to recover the excess amount in lum sump from all such part time water carriers converted into daily wagers. Subsequent to this after verification respondent No.4 vide letter dated 9.8.2016directed Centre Head Teacher of the concerned schools to deposit the excess amount paid to the part time water carriers named therein within a week. In this communication name of the petitioner figured at Serial No.38. An amount of Rs.20 116 is stated to be recoverable from him on account of excess payment of wages to him for the period in question. The recovery notices communications dated 27.7.2016and 9.8.2016have been impugned in the present petition. 3. Learned counsel for the petitioner contended that services of the petitioner were required to be converted into daily wage basis w.e.f. 31.3.2012 and not w.e.f. 23.11.2012. The amount in question was therefore legitimately due towards the petitioner and was accordingly paid to him. Learned counsel further submitted that in any event there had been no Hig h C o urt of H.P on 19 04 HCHP 4 misrepresentation on part of the petitioner therefore in the facts of the case this amount could not be recovered from him. The amount in question was paid by the respondents themselves to the petitioner. In support of his contentions learned counsel relied upon4 SCC 334 titled State of Punjab and others Vs. Rafiq Masih and others. Learned counsel further submitted that similar recovery notices in various other cases of similar nature involving recovery of alleged excess payment of wages to Part Time Water Carriers on their conversion as daily wagers have been quashed and set aside by the erstwhile learned H.P. Administrative Tribunal. The orders passed by the learned Tribunal have been accepted by the respondents and recovery proceedings have been dropped. In support of this submission reliance was placed upon a list at Annexure D 1 and a judgment dated 14.9.2018 delivered by the Tribunal in OA No.304 2017. Learned Additional Advocate General on the basis of instructions imparted to him has not disputed this factual position. 4. Heard learned counsel for the parties and gone through the records. 5(i) The legal position in respect of recovery of amount by the employer allegedly paid to an employee in excess has been streamlined in4 SCC 334 titled State of Punjab and others Vs. Rafiq Masih and others. After noticing various precedents on the subject matter Hon’ble Apex Court held as under: Hig h C o urt of H.P on 19 04 HCHP 5 “18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery where payments have mistakenly been made by the employer in excess of their entitlement. Be that as it may based on the decisions referred to herein above we may as a ready reference summarise the following few situations wherein recoveries by the employers would be impermissible in law:Recovery from employees belonging to Class III and Class IV serviceRecovery from retired employees or employees who are due to retire within one year of the order of recovery.Recovery from employees when the excess payment has been made for a period in excess of five years before the order of recovery is issued.Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post and has been paid accordingly even though he should have rightfully been required to work against an inferior post.In any other case where the Court arrives at the conclusion that recovery if made from the employee would be iniquitous or harsh or arbitrary to such an extent as would far outweigh the equitable balance of the employer s right to recover.” 5(ii) In14 SCC 267 titled High Court of Punjab and Haryana and Others Vs. Jagdev Singh Hon’ble Apex Court after noticing the judgment in Rafiq Masih’s caseheld that there is no bar in ordering recovery from the retired employees or employees who are due to retire within one year of the order of recovery in case the officer to whom the payment was made in the first instance was given notice that any payment found to have been made in excess would be required to be refunded. It is also significant to notice that in Jagdev Singh’s case the officer concerned had furnished an undertaking to refund the excess payment if any. In such situation it was observed by the Court as under: “9. The submission of the Respondent which found favour with the High Court was that a payment which has been made in excess cannot be recovered from an employee who has retired from the service of the state. This in our view will have no application to a situation such as the present where an undertaking was specifically furnished by the officer at the time when his pay was initially revised accepting that any payment found to have been made in excess would be liable to be adjusted. While opting for the benefit of Hig h C o urt of H.P on 19 04 HCHP 6 the revised pay scale the Respondent was clearly on notice of the fact that a future re fixation or revision may warrant an adjustment of the excess payment if any made. 11. The principle enunciated in propositionabove cannot apply to a situation such as in the present case. In the present case the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking.” 5(iii) The relief against recovery is granted by the Courts not because of any right in the employees but in equity exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But in a given case if it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid or in cases where the error is detected or corrected within a short time of wrong payment the matter being in the realm of judicial discretion courts may in the facts and circumstances of any particular case order for recovery of the amount paid in excessSCC 475 titled Syed Abdul Qadir & Ors Vs. State of Bihar & Ors.] 5(iv) In the instant case the petitioner was serving as Part Time Water Carrier w.e.f. 23.9.2002. His services were required to be converted into daily waged basis in terms of the applicable Government Policy on completion of nine years continuous service in accordance with law. It is not in dispute that the petitioner had completed nine years continuous service as Part Time Water Carrier by 31.3.2012. As per un controverted reply petitioner’s part time services were converted into daily wage basis w.e.f. 23.11.2012. Arrears on that count were paid to him w.e.f. 31.3.2012. It is not the case of the respondents that the petitioner had misrepresented regarding any relevant factual position. Arrears on Hig h C o urt of H.P on 19 04 HCHP 7 account of conversion of the petitioner’s part time services as daily wage were paid by the respondents themselves to the petitioner w.e.f. 31.3.2012. Even without going into the admissibility of the amount in question to the petitioner w.e.f. 31.3.2012 it can be safely concluded that the case of the petitioner squarely falls within category of Paragraph 18(i) of the Rafiq Masih’s caseand dated 9.8.2016are quashed and set aside. Accordingly the present writ petition stands disposed of so also pending miscellaneous application(s) if any. Jyotsna Rewal Dua Judge April 19 2021(rohit)

Disputes are arbitrable even after a party approaches International Chambers of Commerce, Paris to appoint an arbitrator and exhausts its arbitrable remedy: High Court of Delhi

Disputes between the parties could be arbitrable u/s 11(6) read with Section 10(2) of the Arbitration and Conciliation Act, 1996 even after a party exhausts its arbitrable remedy by approaching the International Chambers of Commerce, Paris in accordance with terms of arbitration contract. These were held by High Court of Delhi, consisting Justice Suresh Kumar Kait in the case of AMR-BBB Consortium vs. Bharat Cooking Coal Ltd. [ARB.P. 1247/2021] on 13.01.2022. The facts of the case are that the petitioner is a Consortium comprising of two companies i.e. AMR India Limited, a company registered under the Companies Act, 1956 (AMR Construction Limited) and Building Business Bridges UK Limited (BBB) and the Consortium Agreement was entered into between AMR and BBB for participating in the tender process and development, mining and extraction of the Kapuria Block. According to the petitioner, respondent is a public sector undertaking and a subsidiary of Coal India Limited and engaged in the business of mining of cooking coal. As per the averments made in the present petition, by the respondent, petitioner was awarded to undertake the work under Contract for the Development of Kapuria Block & extraction of coal by mass production technology package for a minimum guaranteed production of 2.0 million ton per Year on turnkey basis for the amount of Rs. 798.82 crores as capital cost for development phase-I, and Rs. 1427.25 crores as Revenue cost for phase-II. Accordingly, in terms of the Contract, the scope of Work included preparation of a Detailed Project Report (DPR) & EMP by the Petitioner for the development and extraction of coal from the mine for commercial production period of nine 9 years. However, respondent failed to establish letters of credit in favour of petitioner to import plant and machinery for the purpose of extraction of coal and also failed to clear the payments under different invoices. Thereafter, petitioner invoked arbitration in terms of the Contract. The learned Counsel for the petitioner submitted that the petitioner approached International Chambers of Commerce, Paris to appoint an arbitrator in accordance with the contract but the institution failed to act in accordance with the Contract. ICC vide payment request dated 02.09.2021 demanded to deposit $ 78,000 from all parties i.e., Petitioner as well as Respondent and the additional parties. Since there was no compliance, therefore the ICC, on 14.09.2021 treated the claims as withdrawn and eventually petitioner also withdrew its claims. However petitioner made another attempt to amicably resolve the disputes and called upon the respondent to join in the appointment of Arbitrator by its letter, which was also not responded to by the Respondent. The learned counsel for respondent opposed the present petition by submitting that petitioner- Consortium deliberately and mala fidely suppressed certain material and relevant facts from this Court. Learned counsel has pointed out that the Notice dated 10.07.2020 for cancellation of the Contract was sent to petitioner, as it had prepared DPR based on limited data available and had not taken up additional exploration work and rather granted 15 days’ time to come up with its submissions, failing which the contract shall be cancelled. In response to the aforesaid, petitioner vide letter dated 23.07.2020, sought settlement of the disputes through ‘Conciliation’. It was pointed out that vide communication dated 10.11.2020, respondent asked the petitioner to submit specific disputes, questions, differences upon which conciliation was intended. However, instead of replying to said communication, the petitioner invoked arbitration. Learned counsel submitted that having approached the ICC, the petitioner already exhausted its arbitral remedy and therefore, the present petition deserves to be rejected.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 13.01.2022 ARB.P. 1247 2021 AMR BBB CONSORTIUM Petitioner Through Mr.Rajeeve Mehra Sr. Adv. with Mr.Keshav Sehgal Adv. Through Mr.Amit Sharma Adv. BHARAT COKING COAL LTD. HON BLE MR. JUSTICE SURESH KUMAR KAIT Respondent JUDGMENT The hearing has been conducted through video conferencing. The present petition has been filed under Section 11(6) read with Section 10(2) of the Arbitration and Conciliation Act 1996 seeking appointment of sole Arbitrator to adjudicate the disputes inter se the parties. Petitioner is a Consortium comprising of two companies i.e. AMR India Limited a company registered under the Companies Act 1956 {AMR Construction Limited} and Building Business Bridges UK Limited {BBB} and the Consortium Agreement was entered into between AMR and BBB on 16.09.2011 and 12.12.2012 for participating in the tender process and ARB.P. 1247 2021 development mining and extraction of the Kapuria Block. As per clause 5 & 6 of the agreement dated 16.09.2011 AMR was the lead partner of the petitioner consortium. According to the petitioner respondent is a public sector undertaking and a subsidiary of Coal India Limited and engaged in the business of mining of cooking coal and operating the Jharia and Raniganj coalfields in the State of Jharkhand and produces bulk of cooking coal mined in the country. As per the averments made in the present petition vide letter of acceptance dated 10.09.2011 by the respondent petitioner was awarded to undertake the work under Contract for the "Development of Kapuria Block extraction of coal by mass production technology package for a minimum guaranteed production of 2.0 million ton per Year on turnkey basis for the amount of Rs. 798.82 crores as capital cost for development phase I and Rs. 1427.25 crores as Revenue cost for phase II. Accordingly in terms of Clause 4.1.l(xxxiii) of the Contract the scope of Work included preparation of a Detailed Project Report & EMP by the Petitioner for the development and extraction of coal from the mine for commercial production period of nine years equivalent to 1 % of the Contract Value in terms of Clause 4.1.4 of the Agreement dated 18.04.2012 amounting to Rs. 12 78 49 970 drawn on Oriental Bank of Commerce prepared the Mining Plan for extraction of coal reserves and conducted an Environmental Impact Assessment and the Environmental Management Plan and submitted the respondents through various communications. Moreover the Petitioner sought approvals including but not limited to mining plans Environmental Clearance shaft sinking plans and also furnished Bank guarantees for import of Plant and Machinery which are as ICICI bank i. Bank Guarantee dated 25.09.2014 for Rs. 6 40 75 203 issued by ARB.P. 1247 2021 ii. Bank Guarantee dated 29.09.2014 for Rs. 20 00 00 000 issued by iii. Bank Guarantee dated 30.09.2014 for Rs. 14 79 00 000 issued by SBI Bank Bank of Baroda. However respondent failed to establish letters of credit in favour of petitioner to import plant and machinery for the purpose of extraction of coal and also failed to clear the payments under different invoices. Many other disputes arose between the parties and in order to resolve the issues various communications took place between the parties but those were of no avail. Thereafter petitioner vide letter dated 10.11.2020 invoked arbitration in terms of clause 4.1.31.2 of the Contract. Learned counsel further submits that petitioner approached International Chambers of Commerce Paris on 18.12.2020 to appoint an arbitrator in accordance with the contract but the institution has also failed to act in accordance with Clause 4.1.43 .2 of the Contract. ICC vide payment request dated 02.09.2021 demanded to deposit $ 78 000 from all parties i.e. Petitioner as well as Respondent and the additional parties. Since there was no compliance therefore the ICC on 14.09.2021 treated the claims as withdrawn and eventually petitioner also withdrew its claims. However ARB.P. 1247 2021 petitioner made another attempt to amicably resolve the disputes and called upon the respondent to join in the appointment of Arbitrator by its letter dated 29.09.2021 which was not responded to by the Respondent. Hence the present petition has been filed. On the other hand learned counsel for respondent has opposed the present petition submitting that petitioner Consortium has deliberately and mala fidely suppressed certain material and relevant facts from this Court. Learned counsel has pointed out that the Notice dated 10.07.2020 for cancellation of the Contract was sent to petitioner as it had prepared DPR based on limited data available and had not taken up additional exploration work and rather granted 15 days’ time to come up with its submissions failing which the contract shall be cancelled. In response to the aforesaid petitioner vide letter dated 23.07.2020 sought settlement of the disputes through ‘Conciliation’. Thereafter vide communication dated 10.11.2020 respondent asked the petitioner to submit specific disputes questions differences upon which conciliation was intended. However instead of replying to said communication petitioner invoked arbitration. According to learned counsel for respondent even after a chain of communications petitioner did not come forward for conciliation. In the meantime ARB.P. 1247 2021 respondent was informed by the Secretariat of the International Court of Arbitration of the International Chamber of Commerce that on 18.12.2020 it had received a request from petitioner for arbitration. However due to default of payment to ICC International Court of Arbitration by the petitioner despite repeated communications ICC sought the parties to pay the balance amount. However again petitioner gained time from ICC to make payment. Lately respondent received a communication dated 29.09.2021 from the petitioner wherein it was informed that petitioner had withdrawn request for arbitration before the ICC and now petitioner has filed the present petition seeking appointment of Arbitrator. Learned counsel submitted that having approached the ICC petitioner has already exhausted its arbitral remedy and therefore the present petition deserves to be rejected. On the asking of this Court learned counsel for respondent fairly submitted that disputes are arbitrable and it has no objection if this Court appoints an Arbitrator. In view of above the present petition is allowed. Accordingly Mr. Justice T.S. Thakur former Chief Justice of India is appointed sole Arbitrator to adjudicate the dispute between the parties. ARB.P. 1247 2021 10. The learned Arbitrator shall ensure compliance of Section 12 of Arbitration and Conciliation Act 1996 before commencing the arbitration The learned Arbitrator shall decide the fee after consulting with he parties. 11. The present petition stands disposed of accordingly. 12. A copy of this order be sent to the learned Arbitrator for information. SURESH KUMAR KAIT) JUDGE JANUARY 13 2022 ab ARB.P. 1247 2021

An illegally dismissed employee is entitled to both the wages and bonus: Calcutta High Court.

When calculating ‘wages’, the bonus would not be included but while paying wages to an illegally dismissed employee “bonus” is to be added to the “wages” due to the legal fiction that the illegally dismissed employer was in continuous service. It is to be kept in mind that “bonus” not included within the meaning of “wages” and “bonus” of an illegally dismissed employee are different things. A single Judge bench comprising Hon’ble Justice Abhijit Gangopadhyay in the matter of Kanchan Oil Industries Limited Vs. Sri Ranganath Sukla & Anr (WPA 3111 of 2016), Dealt with an issue where an employer filed a writ application against the order passed by the Second Labour Court in connection with an application under Section 33C(2) of the Industrial Disputes Act, 2 1947, (ID Act, in short). In the present case, the employee was a security person/darwan in the oil mill of the petitioner, who was on unauthorised leave for some time. Because the leave was unauthorised, a disciplinary proceeding was initiated against him, where on the first day he arrived with a stranger, and hence was not allowed to participate and other next further dates he remained absent, hence the proceeding went Ex-parte and the employee was terminated. The employee challenged the termination and the matter was taken up by the 7th Industrial Tribunal where oral evidence was adduced by the parties and documents were exhibited. To this, the employer had submitted before the court that the 2nd labour court had gone beyond its jurisdiction and have wrongly awarded interest on the amount due to the employee. The petitioner further clarified my mentioning the definition of wages as given in Section 2(rr) of the ID Act that the wages can never include the VDA, the bonus and the medical allowance. The petitioner also stated that the amount that was required to be paid as per the award has been paid but the respondent was not entitled to get any more amount any further. The employee/Respondent submitted the petitioner had withheld the salary statement etc, to suppress it from the tribunal that the employee was getting VDA, Medical Allowances and bonus. The respondent also submitted that he was getting house rent which he could not prove as well as the petitioner submitted that the 2nd labour court did not exceed its jurisdiction if it only calculated the amount which comes within the definition and meaning of wages. Further the respondent submitted that as the dismissal was held illegal, so a legal fiction comes into play which holds the employee was in service without any break and hence he cannot be deprived of the bonus. Moreover, a Bonus is something paid in excess of the wages. Therefore, as per the respondent, the direction by the 2nd Labour Court for payment of bonus cannot be said as a direction beyond Jurisdiction as because the 2nd Labour Court had only calculated the benefits to be given to the employee in accordance with the award. After hearing both sides the court observed that- “that the employee/respondent was deprived of the amount of money which he is entitled to and therefore, he is also entitled to interest as consequential benefit. Calculating the interest part as 10% per annum is not an exorbitant rate at all and the same need not be interfered with”. Further, the court directed to pay the amount which earlier had been deposited the Registrar General of this Court by the Company (i.e. the writ petitioner) within a period of one month from the date the said amount to respondent No.1 with accrued interest thereon till the date of withdrawal of the amount from the bank. Further, it directed, the petitioner to pay the rest of the amount with interest @ 10% per annum from the date of dismissal of the employee till the date immediately before the date of payment. Thereby the court dismissed the writ petition with a cost of Rs.25,000/-, that the petitioner needs to pay to the respondent. Click Here For The Judgement

IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE PRESENT: HON’BLE MR. JUSTICE ABHIJIT GANGOPADHYAY WPA 31116 Kanchan Oil Industries Limited Versus Sri Ranganath Sukla & Anr. For the petitioners : Mr. Rabindranath Majumder For the Respondent No. 1 Heard on : 12.01.2021 21.01.2021 12.02.2021 18.02.2021 24.02.2021 12.03.2021 16.03.2021 & 06.04.2021 Mr. Sourav Chakraborty Mr. Supratim Bhattacharjee Mr. S. M. Obaidullah Mr. Suvadip Bhattacharjee Mr. Balaram Patra Judgment on : 06.07.2021 Abhijit Gangopadhyay J .: 1. This writ application by the employer is directed against the order passed by the Second Labour Court in connection with an application under Section 33C(2) of the Industrial Disputes Act 1947 ID Act employee petitioner is that the Labour Court while deciding the said application has acted going beyond the jurisdiction as it has virtually made out a case and consequently have granted some relief which was not granted by the Tribunal while passing the award in respect of reference made to it by the Government of West Bengal. 2. The writ petitioner has submitted that while the award says payment of full back wages etc. the Court under the 33C(2) application has awarded certain amounts in respect of VDA medical allowance and bonus. According to the petitioner the award did not say anything about the VDA medical allowance and bonus but the 2nd Labour Court has granted those benefits to the employee. The 2nd Labour Court has also gone wrong while awarding interest on the amount due to the employee. 3. The employee was a Security person Darwan in the Oil Mill of the petitioner. The employee respondent therein was on unauthorised leave for some time. As it was unauthorised leave disciplinary proceeding was initiated against him wherein he on the first day appeared with an outsider and therefore not allowed to participate and on next dates he remained absent and the proceeding was continued ex parte and ultimately the employee was terminated. 4. This termination was challenged by the employee and thereupon a reference was made by the Government of West Bengal. The matter was heard by the 7th Industrial Tribunal wherein oral 3 exhibited. evidence was adduced by the parties and documents were 5. The writ petitioner submits that as the 2nd Labour Court has gone beyond its jurisdiction and have recalculated the amount to be paid as wages to the employee respondent and has included in the wages the VDA medical allowance and the bonus the order passed by the said court dated 31.07.2015 should be set aside. Placing the definition of wages as given in Section 2(rr) of the ID Act the petitioner has submitted that the wages can never include the VDA the bonus and the medical allowance. It has further been submitted that the wages as is understood from the award has already been paid to the employee and no further amount is required to be paid as he is not entitled to it. 6. The employee respondent has submitted that the definition of wages includes the dearness allowance and medical allowance as these components can be calculated in money value which comes within the meaning of wages as has been defined in Section 2(rr) of the ID Act 1947. And bonus is consequence of wages and he is entitled to it. The employee respondent further submitted showing his affidavit in opposition wherein the evidence adduced by the Company‟switness has been recorded that the companies witness nowhere in their evidence stated that the employee is not entitled to VDA medical allowance and bonus. By referring to the evidence adduced it has also been submitted by the employee respondent that the Company withheld the salary statement etc. to suppress it from the Tribunal that the employee was getting VDA medical allowance and bonus. He was also getting house rent which he could not prove and therefore it has not been included in the order passed by the 2nd Labour Court. In respect of the 2nd Labour Court‟s decision in calculating the amount the employee respondent has stated that the said Court under Section 33C(2) of the ID Act has never exceeded its jurisdiction it only calculated the amount which comes within the definition and meaning of wages. The “consequential benefit” was included in the award and if something is calculated what was given in the award it can never be alleged that by making the calculation the executing court has acted exceeding its jurisdiction. It has been submitted that the calculation was made of some monetary benefits included which comes within the meaning of full back wages as has been given in the award. As the dismissal has been held illegal a legal fiction comes into play which holds that the employee was in service without any break. In view of this he cannot be deprived of Bonus. 7. Affidavits have been exchanged between the parties. They have also filed written notes of argument. 8. The definition of wages as given in the ID Act 1947 : rr) "wages" means all capable of being expressed in terms of money which would if the terms of employment expressed or implied were fulfilled be payable to a workman in respect of his employment or of work done in such employment and includes such allowances as the workman is for the time being entitled to the accommodation or of supply of light water medical attendance or other amenity or of any service or of any concessional supply of foodgrains or other articles any travelling concession iv) any commission payable on promotion of sales or business or both but does not include any bonus any contribution paid or payable by the employer to any pension fund or provident fund or for the benefit of the workman under any law for the time being in any termination of his service force 9. After the award was passed the employee filed application under Section 33C(2). Section 33C(2) of the ID Act 1947 is as follows: 2) Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed then the question may subject to any rules that may be made under this Act be decided by such Labour Court as may be specified in this behalf by the appropriate Government within a period not exceeding three months. 10. From the reading of definition of wages and from the reading of power of the Court under Section 33C(2) I find that there is neither any perversity nor any act beyond jurisdiction by the 2nd Labour Court while deciding the application under Section 33(C)2 of the ID Act filed by the employee. In the award it has been stated that the employee has to be given full back wages as its dismissal from service was illegal and the back wages is to be paid together with all consequential benefits. Within the meaning of the wages as defined in the said Act of 1947 it is clear that dearness allowance and medical allowance and other remuneration capable of being expressed in terms of money are covered as those are capable of being calculated in money value. Bonus of an employee is also capable of being expressed in terms of money value and it is consequence of wages. It is to be kept in mind that “bonus” not included within the meaning of “wages” and “bonus” of an illegally dismissed employee are different things. They mean while calculating „wages‟ bonus would not be included but while paying wages to an illegally dismissed employee “bonus” is to be added to the “wages” due to the legal fiction that the illegally dismissed employer was in continuous service therefore there is no reason as to why bonus in such cases would not be added to the wages to be paid. A person who is not entitled to get wages cannot get bonus. Bonus is something paid in excess to the wages. Therefore direction by the 2nd Labour Court for payment of bonus cannot be said as a direction beyond the jurisdiction. The 2nd Labour Court has only calculated the benefits to be given to the employee in accordance with the award. As the salary register etc. was not produced by the employee respondent despite giving them opportunity to produce the same presumption has been drawn by the executing court while giving effect to the already granted benefit in the award. Making calculation of the awarded amount is not an Act without jurisdiction. 11. The petitioner‟s submission that the benefit which was not adjudicated by the tribunal was outside the scope of the proceeding under Section 33C(2) of the ID Act is of no basis as the tribunal when awarded full back wages after setting aside the charge sheet as a whole shows that all claims of a illegally dismissed employee the respondent herein has been decided and there is no such issue which was not adjudicated. Therefore in the proceeding under Section 33C(2) all claims capable of being computed in terms of money has been adjudicated and decided without any illegality. In the facts and circumstances of this case the judgment cited by the petitioner in 1995 SCC 296 is not 12. In respect of interest I hold that the employee respondent was deprived of the amount of money which he is entitled to and therefore he is also entitled to interest as consequential benefit. Calculating the interest part as 10% per annum is not an exorbitant rate at all and the same need not be interfered with. As the petitioner company has approached this Court instead of paying the amount as decided in Section 33C(2) of the ID Act I do not hold that it has made default in payment of money to the 13. It has been submitted at the time of hearing that an amount of Rs 2 Lakh has already been deposited with the Registrar General of this Court by the Companybut the said amount does not cover the whole amount as has been calculated by the executing court. 14. Therefore I direct the Registrar to pay within a period of one month from date the said amount to the respondent No.1 with accrued interest thereon till the date of withdrawal of the amount from the bank and I direct the writ petitioner to pay the rest of the amountas has been directed in the application under Section 33C(2) with interest @ 10% per annum from the date of dismissal of the employee till the date immediately before the date of payment. 15. The writ application is dismissed with a cost of Rs. 25 000 to be paid by the petitioner to respondent employee as I have found that for no reason at all the writ application has been filed with 9 the sole intention to deprive the employee from getting the dues as directed by the 2nd Labour Court. Abhijit Gangopadhyay J) Later: After passing of this judgment and order prayer has been made on behalf of the writ petitioner for stay of operation of the order which is considered and rejected. Abhijit Gangopadhyay J)

The Court declined pre-arrest bail to the petitioners after being arrested under Sections 341, 323, 324, 307, 379, 354, 504, 506/34IPC: High court of Patna

The petitioners were arrested under Section 341 of the Indian Penal Code, “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 379, “Punishment for theft”. Section 354, “Assault or criminal force to woman with intent to outrage her modesty”, section 504, “ Intentional insult with intent to provoke breach of the peace”, section  506, “Punishment for criminal intimidation”, section 34IPC, “Acts done by several persons in furtherance of common intention” This is in connection with Raniganj (RS) PS Case No. 420 of 2020 dated 19.08.2020. This Judgment was given in the high court of Judicature at Patna by honorable Mr. Justice Ahsanuddin Amanullah on the 12th of July 2021 in the case of  Hasnain versus the state of Bihar criminal miscellaneous No.14230 of 2021, Mr. Nafisuzzoha represented as the advocate for the petitioner and Mr. Rajendra Nath represented the state of Bihar as the additional Public Prosecutor, the proceedings of the court were held through a video conference. The following are the facts of the case, the petitioner was accused of assaulting the informant and his cousin due to some previous dispute between them which resulted in a head injury. The counsel for the petitioners submitted that this incident occurred during a Panchayati and there was a free fight between both the parties and both the parties sustained injuries, where the wife of the petitioner has also filed a case against the informant in Raniganj (RS OP) PS Case No. 443 of 2020 when an inquiry for the injury report was made the same had been kept reserved and the counsel conceded that the petitioners have been falsely implicated by the informants and pray for bail before this high court. The Additional Public Prosecutor submitted that the injury was caused due to the assault by the petitioners and according to the injury reports it was disclosed that one stitched wound on the head and forehead of the informant and one stitched wound on the right parietal region for the other informant The court concluded that “Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, the Court is not inclined to grant pre-arrest bail to the petitioners. Accordingly, the petition stands dismissed.  Interim protection is given to the petitioner under order dated 15.06.2021 stands vacated.  However, in view of the submission of learned counsel for the petitioners, in the event they appear before the Court below and pray for bail, the same shall be considered on its own merits, in accordance with the law, without being prejudiced by the present order.”

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No.142321 Arising Out of PS. Case No. 420 Year 2020 Thana RANIGANJ District Araria 1. Hasnain aged about 42 years male S o late Dost Mohammad 2. Md. Qaunain @ Qonain aged about 37 years male S o late Dost Both resident of village Kadwa P.S. RaniganjDistt Araria ... Petitioner s The State Of Bihar For the Petitioner s For the State Mr. Nafisuzzoha Advocate Mr. Rajendra Nath Jha APP CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ... Opposite Party s Date : 12 07 2021 The matter has been heard via video conferencing. 2. Heard Mr. Nafisuzzoha learned counsel for the petitioners and Mr. Rajendra Nath Jha learned Additional Public Prosecutorfor the 3. The petitioners apprehend arrest in connection with Raniganj PS Case No. 420 of 2020 dated 19.08.2020 instituted under Sections 341 323 324 307 379 354 504 506 34 of the Indian Penal Code 4. The allegation against the petitioners is of assault on the informant and his cousin on the head leading to injury due to previous dispute between them. Patna High Court CR. MISC. No.142321 dt.12 07 2021 5. Learned counsel for the petitioners submitted that there was a Panchayati on the fateful day and the occurrence occurred there and there was a free fight and both sides had suffered injury and further RaniganjPS Case No. 4420 has also been filed by the wife of the petitioner no. 2 against the informant and others. It was submitted that the injury reports has not given any specific opinion and the same has been kept reserved for the report of the CT scan of the brain Learned counsel submitted that the petitioners have been falsely 6. Learned APP from the case diary submitted that the injury on the head has been caused by assault by the petitioners as has been specifically alleged in the FIR and the injury reports disclose one stitched wound on the head and forehead of Md. Akbar and one stitched wound on right parietal region of Shahnawaz 7. At this juncture when the Court made query to learned APP with regard to the specific direction that all the injury report(s) including the final report(s) be obtained from the Superintendent of Police Araria he submitted that the same is not there. On a further query as to whether he has taken instructions from the Superintendent of Police Araria with Patna High Court CR. MISC. No.142321 dt.12 07 2021 regard to procuring the final report(s) he submitted that he has not done so 8. The Court can only comment on the unfortunate situation where the specific directions of the Court are not complied with and the same results in wastage of Court’s time and also lack of proper assistance to the Court 9. Be that as it may the Court would not cause any further wastage of it’s time 10. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties the Court is not inclined to grant pre arrest bail to the petitioners 11. Accordingly the petition stands dismissed 12. Interim protection given to the petitioner under order dated 15.06.2021 stand vacated. 13. However in view of submission of learned counsel for the petitioners in the event they appear before the Court below and pray for bail the same shall be considered on its own merits in accordance with law without being prejudiced by the present order. (Ahsanuddin Amanullah J J. Alam

The testimony of hostile witnesses can be relied on to the extent, it supports the prosecution case: Allahabad High Court

There is no reason to falsely implicate the accused-appellant by his real brother. Thus, his witness cannot be thrown away merely on the ground of being hostile. Such an observation was made by the Hon’ble Allahabad High Court before Hon’ble Justice Dr. Kaushal Jayendra Thaker & Hon’ble Justice Ajai Tyagi in the matter of Prakash vs State Of U.P. [JAIL APPEAL No. – 315 of 2013] on  27.10.2021. The facts of the case revolved around the homicidal death of one Phoolkali who was alleged to be killed by his own husband by a spade. The eye-witness was of the incident, who was the complainant, was the real brother of the accused-appellant. After examining the pieces of evidence led by the prosecution the learned session judge found the accused guilty under section and awarded a sentence of life imprisonment including a fine of Rs. 10,000/-. He was directed to undergo further imprisonment for one year, in case of default of fine. The appellant was further convicted and sentenced under Section 323 IPC for six months rigorous imprisonment and further convicted and sentenced under Section 324 IPC for one year rigorous imprisonment. All sentences were directed to run concurrently. Thus, the present appeal was preferred by the appellant stating that the witnesses cannot be held to be valid on the reason of being hostile. The Hon’ble High Court referred to the judgment in the case of Koli Lakhmanbhai Chandabhai vs. the State of Gujarat [(1999) 8 SCC 624] in which Hon’ble Supreme Court held that “ evidence of hostile witness can be relied upon to the extent it supports the version of prosecution and it is not necessary that it should be relied upon or rejected as a whole. Evidence of such a witness cannot be treated as washed off the record. It remains admissible in the trial and there is no legal bar to base his conviction upon his testimony if corroborated by other reliable evidence. ” Finally, the Hon’ble High Court upheld that the order conviction of the learned session judge but turned the conviction from 304 to 304 of IPC, 1860. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur The facts of the case revolved around the homicidal death of one Phoolkali who was alleged to be killed by his own husband by a spade. The eye-witness was of the incident, who was the complainant, was the real brother of the accused-appellant. After examining the pieces of evidence led by the prosecution the learned session judge found the accused guilty under section and awarded a sentence of life imprisonment including a fine of Rs. 10,000/-. He was directed to undergo further imprisonment for one year, in case of default of fine. The appellant was further convicted and sentenced under Section 323 IPC for six months rigorous imprisonment and further convicted and sentenced under Section 324 IPC for one year rigorous imprisonment. All sentences were directed to run concurrently. Thus, the present appeal was preferred by the appellant stating that the witnesses cannot be held to be valid on the reason of being hostile. The Hon’ble High Court referred to the judgment in the case of Koli Lakhmanbhai Chandabhai vs. the State of Gujarat [(1999) 8 SCC 624] in which Hon’ble Supreme Court held that “ evidence of hostile witness can be relied upon to the extent it supports the version of prosecution and it is not necessary that it should be relied upon or rejected as a whole. Evidence of such a witness cannot be treated as washed off the record. It remains admissible in the trial and there is no legal bar to base his conviction upon his testimony if corroborated by other reliable evidence. ” Finally, the Hon’ble High Court upheld that the order conviction of the learned session judge but turned the conviction from 304 to 304 of IPC, 1860. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur The Hon’ble High Court referred to the judgment in the case of Koli Lakhmanbhai Chandabhai vs. the State of Gujarat [(1999) 8 SCC 624] in which Hon’ble Supreme Court held that “ evidence of hostile witness can be relied upon to the extent it supports the version of prosecution and it is not necessary that it should be relied upon or rejected as a whole. Evidence of such a witness cannot be treated as washed off the record. It remains admissible in the trial and there is no legal bar to base his conviction upon his testimony if corroborated by other reliable evidence. ” Finally, the Hon’ble High Court upheld that the order conviction of the learned session judge but turned the conviction from 304 to 304 of IPC, 1860. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur Finally, the Hon’ble High Court upheld that the order conviction of the learned session judge but turned the conviction from 304 to 304 of IPC, 1860.

Court No. 37 Case : JAIL APPEAL No. 3113 Appellant : Prakash Respondent : State of U.P Counsel for Appellant : Form Jail Shweta Pandey Sweta Pandey Counsel for Respondent : A.G.A Hon ble Dr. Kaushal Jayendra Thaker J Hon ble Ajai Tyagi J Oral judgment by Hon ble Ajai Tyagi J This appeal has been preferred by the appellant Prakash against the judgment and order dated 16.2.2008 passed by Additional Sessions Judge Court No.9 Kanpur Dehat in Session Trial No.807arising out of Case Crime No.6706 under Section 302 323 324 IPC Police Station Ghatampur District Kanpur Nagar whereby the accused was convicted and awarded sentence under Section 302 IPC for life imprisonment and fine of Rs.10 000 . He was directed to undergo further imprisonment for one year in case of default of fine. The appellant was further convicted and sentenced under Section 323 IPC for six months RI and further convicted and sentenced under Section 324 IPC for one year RI. All sentences were directed to run concurrently The facts giving rise to this appeal are that complainant Ram Khelawan submitted written report at Police Station Ghatampur District Kanpur Nagar stating therein that on 18.12.2006 his elder brother Prakash was going to the brick kiln of Jawahar with his wife PhoolkaliShiv Raj s o Bheekkhu ran towards that direction and saw that Prakash was attacking on his own wife Phoolkali with spade. They anyhow saved both the children during which Shiv Raj and daughter of Prakash namely Goldialso sustained injuries. So many people of village gathered on the spot but Prakash fled way. He brought injured Phoolkali for treatment but she died A case crime bearing No.6706 was registered at police station under Sections 302 and 323 IPC. Investigation was taken up by SI Badam Singh. Investigating Officer recorded statements of witnesses prepared site plan collected plain and blood stained earth. Inquest report was also prepared Postmortem was conducted on the body of deceased by Dr.Autar Singh and postmortem report was prepared. In the postmortem cause of death was ascertained as excess bleeding from antemortem injuries. Injured Shiv Raj and Kumari Goldi were also medically examined and their injury reports were also prepared by Dr.Vinod Kumar Mishra. During the course of investigation the Investigating Officer arrested the accused Prakash and on his pointing out made recovery of spade which was said to be used in commission of crime. After completing the investigation charge sheet was submitted against accused appellant Prakash under Sections 302 324 and 323 IPC. The case being exclusively triable by court of session was committed to the court of session for trial Learned trial court framed charges against appellant under Sections 302 324 and 323 IPC. Charges were read over to the accused who denied the charges and claimed to be tried To bring home the charges following witnesses were examined by the prosecution Apart from oral evidence following documentary evidence were produced by prosecution and proved by leading Dr.Vinod Kumar Misra Written report Recovery memo of blood stained and Recovery memo of spade Injury report Charge sheet Mool Site plan with Index Site plan with Index Accused appellant was examined under Section 313 Cr.P.C. and evidence led by prosecution against him was put to him. Accused stated that false evidence has been led against him. Accused did not examine any witness in his defence 8. We have heard Ms.Shweta Pandey learned Amicus Curiae appearing for the appellant learned AGA for the State and perused the record Learned counsel for the appellant submitted that appellant has been falsely implicated in this case. He is innocent. It is strongly argued that all the prosecution witnesses of fact have turned hostile. No witness has supported the prosecution case. It is also submitted that antemortem injuries shown in postmortem report were not sufficient to cause death of the deceased. It is next submitted that appellant was not arrested on the spot and prosecution could not establish any motive to commit the crime by appellant. Deceased was wife of appellant and nothing is brought forward by prosecution as to why the appellant would have killed his own wife. Motive is absolutely silent. She also argued that false recovery of spade is made by Investigating Officer to strengthen the prosecution case and recovered spade is in fact planted by the police Appellant is languishing in jail for more than 14 years 10. Per contra learned AGA submitted that appellant is named in FIR as single accused and it is very important to note that the FIR of this case was lodged by appellant s real younger brother. It is next submitted that first information report was lodged very promptly nearly about two hours after the occurrence. Therefore there was no reason for false implication of the appellant. It is also very important to note that first information report is lodged by younger brother of accused and there is nothing on record that there was any sort of enmity between these two brothers. Learned AGA further submitted that the spade which was used in commission of crime was recovered by Investigating Officer on the pointing out of the appellant. It is also argued that antemortem injuries found in postmortem could be inflicted to the deceased with the weapon instrument like spade if it is used from reverse side. In this way medical evidence also corroborates the prosecution version. Lastly it is submitted by learned AGA that no doubt witnesses of fact have turned hostile but they have become hostile due to being close relative i.e. brother and daughter etc. therefore to save the accused from punishment witnesses have turned hostile but learned trial court has rightly appreciated the evidence on record and convicted the accused It is contended by the defence that prosecution could not establish the motive of crime but this is the case of direct evidence and in case of direct evidence motive losses importance. Hence absence of motive does not affect the prosecution case adversely 12. Perusal of the record shows that in this case prosecution has produced three witnesses of fact namely Ram Khelawan who is complainant and eye witness of the occurrenceShiv Raj injuredand Silta the daughter of the accused PW3). All these three witnesses have turned hostile. In such a situation heavy duty has been cast upon us to scrutinize the evidence of PW1 PW2 and PW3. It is settled law that testimony of hostile witnesses cannot be thrown away merely on the ground of being hostile. The testimony of hostile witnesses can be relied on to the extent it supports the 13. Hon ble Apex Court in Koli Lakhmanbhai Chandabhai vs. State of Gujarat8 SCC 624] has held that evidence of hostile witness can be relied upon to the extent it supports the version of prosecution and it is not necessary that it should be relied upon or rejected as a whole. It is settled law that evidence of hostile witness also can be relied upon to the extent to which it supports the prosecution version Evidence of such witness cannot be treated as washed off the record. It remains admissible in the trial and there is no legal bar to base his conviction upon his testimony if corroborated by other reliable evidence In Ramesh Harijan vs. State of UP5 SCC 777 Hon ble Supreme Court has also held that it is settled legal position that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witness cannot be treated as effaced or washed off the record In State of UP vs. Ramesh Prasad Mishra and another 2766] Hon ble Apex Court held that evidence of a hostile witnesses would not totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. Thus the law can be summarized to the effect that evidence of a hostile witness cannot be discarded as a whole and relevant part thereof which are admissible in law can be used by prosecution or the 16. We have scrutinized the evidence of hostile witnesses very meticulously and have also gone through the findings recorded by learned Trial Judge 17. First information report was very promptly lodged at police station just after two hours of incident in which the complainant named appellant Prakash and he was single accused named in the FIR. There is no reason to falsely implicate the appellant by his real brother. Ram Khelawan PW1) although has turned hostile but in examination in chief he has stated that written report was written by Raj Kumar but he had written it on his dictation. Although he has further stated that it was not read over to him but this statement cannot be believed in the light of evidence of scribe. The scribe of first information report Raj Kumar has been produced as PW9. He has stated in his examination in chief that report of occurrence was written by him on the dictation of Ram Khelawan and he had written verbatim whatever was dictated by him. In his cross examination PW9 has stated that he had written above report at police chauki on the dictation of police inspector Learned trial court has very well scrutinized the factum of writing of first information report and came to the conclusion that it is clear that first information report was written by Raj Kumar on the dictation of complainant Ram Khelawanis cousin of complainant. It is said that on hearing the screaming he also ran towards the place of occurrence. His presence is also proved on the spot because he sustained injuries as it is said in the first information report that Shiv Raj sustained injuries while trying to save the deceased Medical examination of injuries of this witness was conducted by Dr.Vinod Kumar Mishra has also turned hostile but injury sustained by him shows that he was present at the place of occurrence and as stated in the FIR he sustained injury while trying to save the deceased from the clutches of accused appellant. The same case goes with the daughter of appellant namely Kumari Goldi. Unfortunately Kumari Goldi died before she could depose. In this way the injuries of above injured persons established the fact that the incident as alleged in the FIR took place and while trying to save the deceased from the attack of appellant they sustained injuries. Although Shiv Rajhas stated that he got injury by falling but this statement cannot be believed in view of the above circumstances. Learned trial court has rightly opined that a person can tell a lie but not the circumstances 19. We are convinced that learned trial court has rightly held that inquest report was prepared and punch gave opinion that deceased Phoolkali died due to inflicting the injuries with spade by Prakash. Complainant Ram Khelawan has also signed the inquest report and Bhola has also signed who is the witness of recovery of spade. This witness namely Bhola is produced as PW7 and has stated that police called him at police chauki and sought his thumb impression on a plain paper. He has denied recovery of spade in his presence but in this way however he has admitted his thumb impression on recovery memo. Learned trial court has very rightly appreciated the fact that there is no signature or thumb impression of accused Prakash on inquest report. It shows that accused appellant was not present at the time of preparation of inquest report of the deceased while deceased was his wife. His real brother Ram Khelawan the complainant and Bholaetc. were present but accused was not present meaning thereby that he had fled away from there. It is very strong circumstance against the appellant 20. The finding of fact regarding the presence of witnesses at the place of occurrence cannot be faulted with. Death of deceased was a homicidal death. The fact that it was a homicidal death takes this Court to most vexed question whether it would fall within the four corners of murder or culpable homicide not amounting to murder. Therefore we are considering the question whether it would be a murder or culpable homicide not amounting to murder and punishable under Section 304 IPC. Accused is in jail for the last more than 14 years. In State of Uttar Pradesh vs. Mohd. Iqram and another 8 SCC 80] the Apex Court has made the following observations in paragraph 26 therein 26. Once the prosecution has brought home the evidence of the presence of the accused at the scene of the crime then the onus stood shifted on the defence to have brought forth suggestions as to what could have brought them to the spot in the dead of night. The accused were apprehended and therefore they were under an obligation to rebut this burden discharged by the prosecution and having failed to do so the trial court was justified in recording its findings on this issue The High Court committed an error by concluding that the prosecution had failed to discharge its burden. Thus the judgment proceeds on a surmise that renders it 22. Considering the evidence of these witnesses and also considering the medical evidence including postmortem report there is no doubt left in our mind about the guilt of the present appellants. However the question which falls for our consideration is whether on reappraisal of the peculiar facts and circumstances of the case the conviction of the appellant under Section 302 IPC should be upheld or the conviction deserves to be converted under Section 304 or of the Indian Penal Code. It would be relevant to refer Section 299 of the Indian Penal Code which reads as under 299.Culpable Homicide Whoever causes death by doing an act with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that he is likely by such act to cause death commits the offence of culpable homicide 23. The academic distinction between murder and culpable homicide not amounting to murder has always vexed the Courts. The confusion is caused if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300 IPC. The following comparative table will be helpful in appreciating the points of distinction between the two offences A person commits culpable homicide if the act by which the death is caused is done to homicide is murder is the act by which the death is caused is done a) with the intention of causing death or 1) with the intention of causing death or b) with the intention of causing such bodily injury as is likely to cause death or c) with the knowledge that the act is likely to cause death 2) with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused the act 4) with the knowledge is so immediately dangerous that it must in all probability cause death or such bodily injury as is likely to cause death and without any excuse for incurring the risk of causing death or such injury as is mentioned In the case in hand the postmortem of deceased Phoolkali was conducted by Dr.Autar Singh who has produced before trial court as PW5. According to postmortem report the deceased sustained following antemortem injuries a) contusion on back at level of T 6 to T 12 about 15 cm x 9 b) contusion on the right side of back at level of T 10 to T 2 about 5 cm x 4 cm c) abrasion on post aspect of right thigh near right knee joint about 2 cm x 1 cm In the internal examination on the body of the deceased the spinal cord and ribs were found fractured. Right lung and liver also found injured. The doctor opined that deceased died due to excess bleeding from antemortem injuries. Therefore it is established that deceased died due to excess bleeding of internal injuries sustained by her. Having analyzed the antemortem injuries we have reached to the conclusion that appellant used the spade to attack the deceased from reverse side because deceased sustained two injuries of contusion There is no injury of incised wound. Hence spade was used from reverse side which shows that appellant was not having any intention to kill the deceased but certainly he had knowledge that his act was likely to cause death 26. On overall scrutiny of the facts and circumstances of the case coupled with the opinion of the medical officer and considering the principle laid down by the Hon ble Apex Court in the case of Tuka Ram and others vs. State of Maharashtra 4 SCC 250] and in the case of BN Kavadakar and another vs. State of Karnataka 304] we are of the considered opinion that the offence would be punishable under Section 304IPC 27. From the upshot of the aforesaid discussion it appears that the death caused by the accused was not intended and the injuries were though sufficient in the ordinary course of nature to have caused death the accused had no intention to cause death therefore the instant case false under the Exceptions 1 and 4 to Section 300 IPC In the light of the foregoing discussions the appeal is liable to be allowed in part. Appellant is held guilty for commission of the offence under Section 304 IPC instead of offence under Section 302 IPC along with other offences punishable under Sections 323 and 324 IPC 29. Hence the conviction and sentence awarded to the appellant for the offence under Section 302 IPC is converted into the offence under Section 304IPC and appellant is sentenced under Section 304IPC for 14 years rigorous imprisonment and fine of Rs.5 000 . The appellant shall undergo further simple imprisonment for one year in case of default of fine. Sentence awarded under Sections 323 & 324 IPC shall remain intact. All the Sentences shall run 30. Accordingly the appeal is partly allowed as modified Ajai Tyagi J.) (Dr. Kaushal Jayendra Thaker J Order Date : 27.10.2021

An act, whether overt or covert, is indispensable to be done by a co-accused to be liable under Section 34 of IPC: Madhya Pradesh High Court

From the prosecution evidence itself it is apparent that there is lack of evidence requiring to make the accused liable with the aid of Section 34 I.P.C. Furthermore, prosecution has failed to prove any overt act on the part of present respondents. This was said in the case of The State Of Madhya Pradesh Thr vs Ram Autar [Criminal Appeal No. 542/2003] by Justice G.S.Ahluwalia and Justice Rajeev Kumar Shrivastava in the High Court of Madhya Pradesh The facts of the case date back to 4.2.2003 when the Sixth Additional Sessions Judge passed a judgment, whereby the present respondents Ram Outar and Subhash Sharma were acquitted from the charge of Sections 148, 302, 149 of the IPC. Assailing the judgment of the Trial Judge, an appeal is filed by State/appellant under Section 378 of the CrPC The grounds raised are that on the date of incident accused Subhash was driving the tractor by which all the accused persons reached at the placed of incident and after commission of offence accused persons returned back by the same tractor. The aforesaid act was in furtherance of common object and presence of accused Ram Outar at the place of incident has been proved. The prosecution witness 2 and 4 have stated in their statement that Subhash and Ram Outar had also surrounded deceased Mataprasad and Tejram along with other co-accused persons and they were saying “maaro bachne na paaye” (“Kill them, do not leave them alive”). In First Information Report, Subhash and Ram Outar are implicated as accused. The FIR was lodged just immediately after the incident. The trial Court had convicted the co-accused Murari and Ashok on the basis of same set of evidence and has acquitted Ram Outar and Subhash.  Per Contra, learned counsel for the respondents opposed the submissions and submitted that the trial Court after appreciation of evidence available on record has rightly acquitted the respondents and no interference is called for by this Court in the findings of acquittal arrived at by the trial Court. The Court referred to the case of Suresh Sankharam Nangare vs. State of Maharashtra [2012 (9) SCALE 345], wherein it has been held that “if common intention is proved but no overt act is attributed to the individual accused, section 34 of the Code will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and common intention is absent, section 34 cannot be involved. In other words, it requires a prearranged plan and pre-supposes prior concert, therefore, there must be prior meeting of minds.”

CRA No. 542 2003 State of MP vs. Ram Outar and another HIGH COURT OF MADHYA PRADESH BENCH AT GWALIOR RAJEEV KUMAR SHRIVASTAVA JJ Criminal Appeal No. 542 2003 State of Madhya Pradesh Ram Outar and Subhash Shri B.P.S.Chouhan learned Public Prosecutor for the appellant Shri R.K.Singh Kushwaha learned counsel for the respondents J U D G E M E N T Per Rajeev Kumar Shrivastava J Challenge in this appeal filed by the State appellant under Section 378 of the CrPC is to the judgement dated 4.2.2003 passed by Sixth Additional Sessions Judge Bhind in Sessions Trial No.347 2000 whereby the present respondents Ram Outar and Subhash Sharma were acquitted from the charge of Sections 148 302 149 of the IPC. Vide the judgement impugned in the present appeal the trial Court has acquitted accused Subhash and Ramavtar from the offences under Sections 148 and 302 read with Section 149 of IPC but has convicted the accused appellant Ashok under Section 302 read with Section 34 of IPC for the murder of Mataprasad and under Section 302 read with Section 34 of IPC for the murder of Tejraj considering the fact that there was common intention Against conviction and sentence accused Murari and Ashok has CRA No. 542 2003 State of MP vs. Ram Outar and another filed separate Criminal Appeal No. 196 2003. As per the request of learned counsel for the parties both the appealsare being decided simultaneously by passing separate judgment in each appeal. It is further pertinent to note that the appeal filed by Kishan Dutt Ramvaran and Ramkishore against their conviction has been delinked from the present appeal as the aforesaid accused persons were absonder and they were separately tried and judgment was passed on 23.1.2019. The facts necessary to be stated for disposal of the instant appeal are that as per prosecution version on 16.10.1999 deceased Mataprasad and Tejram left their house at about 5 6 am for the purpose of ploughing the field asking the family members to bring breakfast at the field itself. Harendra Kumarand Shailendra son and daughter of deceased Tejram respectively and Dharmendra son of deceased Mataprasad reached at the field in order to serve the breakfast. At that time the deceased Mataprasad and Tejram were cutting grass. In the meantime accused persons reached there by their tractor trolley Accused Subhash was driving the tractor and other accused persons were armed with guns etc. Seeing them Tejram and Mataprasad tried to run away. When they started their tractor all the accused persons surrounded them and Murari fired a gunshot which hit Mataprasad and Mataprasad fell down from the tractor Harendra Shailendri and Dharmendra being afraid of that hide themselves in the field of Bajra. All the accused persons were beating Mataprasad and Tejram. Shriprakash Ramkumar Jaiprakash and Sitaram working in their adjoining fields reached there. After the incident accused persons went away. In the incident Mataprasad and Tejram died on the spot. CRA No. 542 2003 State of MP vs. Ram Outar and another First Information Report was lodged on 16.10.1999 at Police Station Pawai District Bhind by Harendra Kumarand Shriprakashhave stated in their statement that Subhash and Ram Outar had also surrounded deceased Mataprasad and Tejram along with other co accused persons and they were saying “maaro bachne na paaye” CRA No. 542 2003 State of MP vs. Ram Outar and another On perusal of trial Court s judgment it is apparent that the trial Court has acquitted co accused Murari and Ashok from the charges of section 148 of IPC. As per prosecution PW 4 Harendra Kumar who lodged the FIR Ex. 9 was eye witness and immediately after incident Harendra Kumar had lodged the report hence supported the story of prosecution but from the statement of Harendra Kumar it is not reflected that the accused Subhas had participated in the incident. There was no overt act on the part of Subhash and Ram Outar. The trial Court has convicted accused Ashok with the help of Section 34 of IPC Section 34 of Indian Penal Code runs as under : “34. Acts done by several persons in furtherance of common intention. When a criminal act is done by several persons in furtherance of the common intention of all each of such persons is liable for that act in the same manner as if it were done by him alone.” Section 34 of the Indian Penal Code recognises the principle of vacarious liability in criminal jurisprudence. A bare reading of this Section shows that the Section could be dissected as follows Criminal act is done by several persons Such act is done in furtherance of the common intention of all and Each of such persons is liable for that act in the same manner as if it were done by him In other words these three ingredients would guide the court in determining whether an accused is liable to be convicted with the aid of Section 34. While first two are the acts which are attributable and have to be proved as actions of the accused the third is the consequence. Once the criminal act and common CRA No. 542 2003 State of MP vs. Ram Outar and another intention are proved then by fiction of law criminal liability of having done that act by each person individually would arise. The criminal act according to Section 34 I.P.C. Must be done by several persons. The emphasis in this part of the Section is on the word done . It only flows from this that before a person can be convicted by following the provisions of Section 34 that person must have done something along with other persons. Some individual participation in the commission of the criminal act would be the requirement. Every individual member of the entire group charged with the aid of Section 34 must therefore be a participant in the joint act which is the result of their combined activity. The Section does not envisage a separate act by all of the accused persons for becoming responsible for the ultimate criminal act. If such an interpretation is accepted the purpose of Section 34 shall be rendered infructuous Section 34 is intended to meet a situation wherein all the co accused have also done something to constitute the commission of a criminal act. Even the concept of presence of the co accused at the scene is not a necessary requirement to attract Section 34 e.g. the co accused can remain a little away and supply weapons to the participating accused can inflict injuries on the targeted person. Another illustration with advancement of electronic equipment can be etched like this One of such persons in furtherance of the common intention overseeing the actions from a distance through binoculars can give instructions to the other accused through mobile phones as to how effectively the common intention can be implemented. The act mentioned in Section 34 I.P.C. need not be an overt act even an illegal omission to do a certain act in a certain situation can amount to an act e.g. a co accused standing near the victim face to face saw an CRA No. 542 2003 State of MP vs. Ram Outar and another armed assailant nearing the victim from behind with a weapon to inflict a blow. The co accused who could have alerted the victim to move away to escape from the onslaught deliberately refrained from doing so with the idea that the blow should fall on the victim Such omission can also be termed as an act in a given situation Hence an act whether overt or covert is indispensable to be done by a co accused to be fastened with the liability under the Section But if no such act is done by a person even if he has common intention with the others for the accomplishment of the crime Section 34 I.P.C. cannot be invoked for convicting that person This Section deals with the doing of separate acts similar or diverse by several persons if all are done in furtherance of a common intention each person is liable for the result of them all as if he had done them himself for that act and the act in the latter part of the Section must include the whole action covered by a criminal act in the first part because they refer to it. This Section refers to cases in which several persons both intend to do and do an act. It does not refer to cases where several persons intended to an act and some one or more of them do an entirely different act. In the latter class of cases Section 149 may be applicable if the number of the persons be five or more and the other act was done in prosecution of the common object of all. In Suresh Sankharam Nangare vs. State of MaharashtraSCALE 345] it has been held that “if common intention is proved but no overt act is attributed to the individual accused section 34 of the Code will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and common intention is absent section 34 cannot be involved. In other words it requires a pre arranged plan and pre supposes prior concert therefore there must CRA No. 542 2003 State of MP vs. Ram Outar and another be prior meeting of minds.” In Shyamal Ghosh vs. State of West Bengalit is observed that “ Common intention means a pre oriented plan and acting in pursuance to the plan thus common intention must exist prior to the commission of the act in a point of time.” In Mrinal Das vs. State of Tripurait is held that “the burden lies on prosecution to prove that actual participation of more than one person for commission of criminal act was done in furtherance of common intention at a In Ramashish Yadav v. State of Biharit is observed that “it requires a pre arranged plan and pre supposes prior concert therefore there must be prior meeting of mind. It can also be developed at the spur of moment but there must be pre arrangement or premeditated concert.” Mainly two elements are necessary to fulfill the requirements of Section 34 of IPC. One is that the person must be present on the scene of occurrence and second is that there must be a prior concert or a pre arranged plan. Unless these two conditions are fulfilled a person cannot be held guilty of an offence by the operation of Section 34 of IPC. Kindly see Bijay Singh v. State of M.B.CRA No. 542 2003 State of MP vs. Ram Outar and another Administration)it has been observed that “by merely accompanying the accused one does not become liable for the crime committed by the accused within the meaning of Section 34 I.P.C.” There was land dispute between the members of a family as a result of which deceased persons were attacked by the accused persons in which one accused stabbed both the deceased persons and other caused simple injuries with a stick. It was held that the conviction of both the accused under Section 34 read with Section 302 IPC was not proper. Other accused was convicted under Section 324 of IPC. Kindly see Rajagopalswamy Konar vs. State of Tamil Naduit is observed that “the overtact on the part of accused could not be proved and it was held that the order of the conviction was not proper.” From perusal of the record it is evident that Dr O.P.Kashtwar has stated that on 16.10.1999 Constable No.3 Vishambhar Dayal of Police Station Pawai had brought the body of deceased Mata Prasad S o Dashrath R o Birgawa. Post mortem of body of Mataprasad was done and vide post mortem report following injuries were found on the body of deceased Mataprasad : Lacerated wound 4cm x 4cm x muscle deep on left side of neck below lobule of left ear blackening around wound present Lacerated wound 4cm x 4cm x muscle deep margin everted blunt probang could be passed through injury No.(i) to injury No.(ii) iii) Lacerated wound 2.5cm x 2cm. Oval in shape over right side of chest at right steno CRA No. 542 2003 State of MP vs. Ram Outar and another clavicle joint margin invert blackening present over the wound Lacerated wound 15cm x 12cm x muscle deep on right side upper scapula region muscle tissues coming out ribs No.4 5 6 were fractured. Thoracic cavity was filled Lacerated wound 2.5cm x 2cm posterior over rear of neck blackening around wound Lacerated wound 3cm x 2cm over right side back of chest margin everted vii) Lacerated wound 12cm x 12cm x muscle deep over middle of left forearm and one third part of muscle absent. The aforesaid injuries were anti mortem injuries and were caused prior to 18 hours of death. The cause of death was shock due to excessive external and internal bleeding owing to injuries over the body. On the same day Dr. O.P.Kashtwarhas also conducted post mortem of deceased Tejram S o Dashrath R o Village Birgawa and found following injuries on the body of deceased Tejraj vide post mortem reportand wound banks The aforesaid injuries were anti mortem and were caused prior to 18 hours of death of deceased. The cause of death was shock due to excessive external and internal bleeding owing to injuries over the body Dr. Kashtwarhas also stated that on 8.3.2000 CRA No. 542 2003 State of MP vs. Ram Outar and another S.O. Police Station Pawai sent a query report wherein he informed the police that the injuries found over bodies of deceased Mataprasad and Tejram were caused by firearm. Injuries No.(i) iii) andwere entry wounds and injuries No.(iv) andandwere entry wounds and injury No.(iii) was exit wound found over the body of deceased Tejram. The foreign bodies found in the body of Mataprasad and Tejram were sealed by him and handed over to the Police Constable. The death of deceased Mataprasad and Tejram was due to gunshot injury. During trial prosecution witnessNo.1 Ramlal Constable who is the witness to seizure memoproved the recovery of metal particles extracted from the body of the deceased Mataprasad and Tejram. Shriprakashthe Eye witness Rampujanand Sukhdev Sharmaare the witnesses of Ex.P 6 spot map Ex.P 7 and P 8 seizure memos whereby soil stained with blood two covers of 12 bore cartridge and 2 brass cover of 315 bore cartridges. Harendra Kumar Sharma PW 4) eye witness Dr. O.P.Kashtwar who did postmortem of the bodies of deceased Mataprasad and Tejram Ram Kumar Jaiprakash Sharma and Shailendri PW 9) who are the eye witnesses were examined P.K.ChaturvediStation Officer Police Station Surpura who investigated the matter Keshav Singh TomarHead Constable who lodged FIR J.D.Verma who recorded statements under Section 161 of CrPC of witnesses Shriprakash Ramkumar Jaiprakash Mahesh Shrivastava the then S.O. Police Station Pawai were examined. On the basis of statements given by the aforesaid witnesses the trial Court convicted and sentenced Murari and Ashok as CRA No. 542 2003 State of MP vs. Ram Outar and another aforesaid. Eye witnesses of this case namely Shriprakash Ramkumar Jaiprakash and Sitaram are the independent witnesses and Harendra Kumarand Shailendriare son and daughter of deceased Tejram. Another witness Dharmendra who is the son of deceased Mataprasad has not been examined ShriprakashRamkumarJaiprakashhave specifically stated that Murari caused gun shot injury on the chest of Mataprasad and also caused gunshot injury on the head of deceased Tejram and accused Ashok was also having 12 bore double barrel gun. Sitaram who is also said to be the eye witness has not been examined by the prosecution and the statements given by the aforesaid prosecution witnesses remained unrebutted in cross examination The Eye witness Harendra lodged the FIR Ex.P 9). Immediately after the incident FIR has been lodged but from the statement of PW 4 Harendra it is not reflected that the accused Subhash had participated in the incident. Besides above from the prosecution evidence itself it is apparent that there is lack of evidence requiring to make the accused Ram Outar and Subhash liable with the aid of Section 34 I.P.C. Furthermore prosecution has failed to prove any overt act on the part of present respondents Ram Outar and Subhash In the light of above annunciation of law it is clear that in the case in hand the trial Court has acquitted the other co accused from the charges of Section 148 of IPC. Therefore with the aid of Section 34 the co accused who are respondents in this case namely Ram Outar and Subhash have been acquitted and as discussed above no overt act on the part of the present respondents is proved. Therefore in the light of aforesaid observations we find no merit in the present appeal against CRA No. 542 2003 State of MP vs. Ram Outar and another acquittal. 27. Consequently the appeal filed by appellant State u s. 378 of the Cr.P.C against acquittal of present respondent Ram Outar and Subhash is dismissed and impugned judgment of trial court regarding aforesaid respondents is affirmed. Respondents are on bail. Their bail bonds are discharged and in future they need not to appear before Registry of this court in connection to this appeal 28. With a copy of this judgment the record of the trial court be sent back immediately Judge Judge (Rajeev Kumar Shrivastava

If the officer in question issues the certificate without first confirming the facts, he will be held liable for the above laches: Jharkhand High Court

If the officer in question issues the certificate without first confirming the facts, he will be held liable for the laches. It was also stated that if a split in employment is discovered owing to the above cause, all other applicable material services of such conductor or employee would not be regularized. The judgement was passed by the High Court of Jharkhand in the case of Ram Prabesh Singh vs Bihar State Road Transport Corporation  [W.P.(S) No. 3890 of 2009] by Single Bench consisting of Hon’ble Justice Justice Deepak Roshan. The facts of the case are that the petitioners were posted as Conductors, a criminal case was lodged against them under Sections 452, 448, 384, 506 and 511 of I.P.C. for which both the petitioners were sent up for a trial and they were put off from duty. Lastly, vide judgment passed and both the petitioners were acquitted. The grievance of the petitioners is that after their acquittal; both made representations in the year, 1988 and requested the authorities to allow them to join their duties. However, they were restrained from joining their duties Learned counsel for the petitioner submits that even though the petitioners were appointed and were considered for regularization according to Memo and their names were at serial nos. 342 and 343, the respondents never took work from them and it is only on one day their joining were accepted. Though the petitioner represented several times, their claim for back wages from the date of regularization i.e. 03.02.1989 till the date of joining i.e. 10.03.2008 were never paid to them. Learned counsel for the respondent submits that the issue of regularization has already been settled by the Hon’ble Apex Court and referred to the judgment and submits that the petitioner should have 4 filed application before the Labour Commissioner as they were having an alternative remedy. Replying to this contention of learned counsel for BSRTC, contended that this judgment cannot be applied with the case of the petitioner as this order has been passed in the case of a Union and not for any individual. The court while dismissing the petition interpreted their reasoning behind the judgment as “It is true that the Supreme Court had directed to frame a scheme for regularization of the daily wage employee if they were working for a sufficiently long time but in the facts and circumstances of the case, as discussed above in my view the petitioner is guilty of suppressing the relevant facts as the relevant portion of Annexure-5 as it appears from the original record, was not attached with the rejoinder to the counter-affidavit.”

IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 38909 1.Ram Prabesh Singh 2.Santara Devi. 1. Bihar State Road Transport Corporation Chairman cum Managing Director Paribhan Bhawan Birchand Patel Patna 1. ..… Petitioners 2. Jharkhand Road Transport Corporation Transport Secretary Ranchi. 3. Divisional Superintendent B.S.R.T.C. Ranchi. Respondents CORAM: HON BLE MR. JUSTICE DEEPAK ROSHAN For the Petitioner : Ms.M.M.Pal Sr. Advocate For the Resp. No.1 : Mr. Pankaj Kumar Advocate For the Resp. No.2 : Ms. Shivani Kapoor A.C. to S.C. II 10 Dated: 15th March 2021 Heard learned counsel for the parties through V.C. The instant writ application has been preferred by the petitioners for following reliefs: “a. The respondents be directed to give effect to the order dated 03.02.1989 so far this petitioners are concerned and to extend all the Benefits of regularization at par with the same and similarly situated persons for which he is legally entitled b. The respondents be directed to pay the petitioners regular salary and all service benefits inpersuance to the order of regularization dated 03.02.1989. c. The respondents be directed not to discriminate the petitioners and to extend all the service benefits for regularization to these petitioners without any further delay. d. The respondents be directed to pay the arrears of salary for the period from 14.05.1986 to 10.03.2008 i.e. from the date of put off to the date of joining for which he was put off in connection with the criminal case but subsequently were acquitted from the Criminal charge. e. The respondents be directed to treat the petitioners as regularized on and from 03.02.1989 i.e. the date when their juniors were regularized and give all consequential benefits f. Any other relief or reliefs for which these petitioners are entitled to. 3. Ms. M.M.Pal learned senior counsel for the petitioner submits that while the petitioners were posted as Conductors a criminal case was lodged against them on 20.02.1986 under Sections 452 448 384 506 and 511 I.P.C. for which both the petitioners were sent up for trial and they were put off from duty vide order dated 14.04.1986 issued by the Chairman cum Managing Director of the respondent Board. Lastly vide judgment dated 27.05.1988 both the petitioners were acquitted. The grievance of the petitioners is that after their acquittal both made representations in the year 1988 and requested the authorities to allow them to join their duties. However they were restrained from joining their duties in spite of the fact that a list of casual workers were prepared by the BSRTC and altogether 377 workers were considered for regularization in which the name of these petitioners were at serial no. 342 and 343. 5. Ms. Pal further draws attention of this Court towards Annexure 4 and submits that after more than 25 years the joining of the petitioners has been accepted and they have been posted at Daltonganj Depot. In the said letter dated 10.03.2008 issued by the Headquarter the joining of the petitioners were accepted on conditions: a) In absence of regular conductor on the basis of requirement they will provide work and on that basis they will be paid wages. b) They will be paid wages in the previous rate and all the orders issued before the date of put off are deemed to be cancelled. The petitioners thereafter performed their duties however they were not regularized. 6. Ms. Pal concluded her argument and submits that even though the petitioners were appointed and were considered for regularization pursuant to Memo No. 299 dated 03.02.1989 and their names were at serial nos. 342 and 343 the respondents never took work from them and it is only on 10.03.2008 their joining were accepted. Though the petitioner represented several times but their claim for back wages from the date of regularization i.e. 03.02.1989 till the date of joining i.e. 10.03.2008 were never paid to them 7. Mr. Pankaj Kumar learned counsel respondent no.1 BSRTC) submits that the issue of regularization has already been settled by the Hon’ble Apex Court and referred to the judgment passed in C.W.J.C No. 129209 and submits that the petitioner should have filed application before the Labour Commissioner as they were having an alternative remedy. Replying to this contention of learned counsel for BSRTC Ms. Pal contended that this judgment cannot be applied with the case of the petitioner as this order has been passed in the case of a Union and not for any individual. 8. Ms. Shivani Kapoor learned counsel respondent JSRTC submits that the petitioner no.1 had earlier moved before this Court in C.W.J.C. No. 1722 of 1996which was dismissed without any interference. As such no relief can be granted to the petitioner no.1. However she fairly submits that if the petitioner no.2 will represent to the respondent Board showing equality with other people amongst the list of 377 casual workers his case can be considered after due verification. Having heard learned counsel for the parties and after going through the documents annexed and averments made in the respective affidavits it appears that the petitioner no.1 had earlier moved before this Court in CWJC No. 1722 of 1996 which was preferred for a direction upon the respondent to accept the joining and pay back wages and not to give effect to the order dated 14.04.1986 which is same and similar fact which has been prayed in the instant application. 10. After going through the aforesaid order it appears that Annexure 3 of this case i.e. order dated 03.02.1989 list of casual worker for regularization) was Annexure 5 in that case and this Court after verifying the original records came to conclusion that though the name of the petitioner was mentioned at serial no. 342 however against his name a endorsement was made that matter was pending before the head office. For proper appreciation and to decide the issue involved in this case relevant portion of the order of this court passed in the case of Petitioner no.1 in C.W.J.C. No. 17296is quoted herein below: “Having considered the submissions made by counsel for the parties an after going through the material available on record and also original record produced by learned counsel for the respondents it is manifest that the petitioner was engaged on daily wages in the year 1980. He was restrained from discharging his duty with effect from 14.04.1986 Annexure 1. He was made accused in criminal case for assaulting and mis behaving with the senior officer. In the criminal case the petitioner has been acquitted but he was not permitted to join again. It appears from Annexure 3 to rejoinder to the counter affidavit that the service of the petitioner was regularized but it appears from the original record produced by learned counsel for the respondents that relevant portion of the Annexure 5 was not annexed with the rejoinder to the counter affidavit. It appears from the original of Annexure 5 that name of the petitioner is mentioned at serial no. 342 and against his name endorsement has been made that matter is pending before the Head Office. It further appears that complete one page has not been annexed with Annexure 5. From perusal of the said page of original of Annexure 5 it appears that the officer concerned was directed that before issue of order he must verify the break in service reappointment suspension stopping from duty absence for time departmental proceeding etc. and certificate to the aforesaid effect. If the officer concerned furnishes the certificate without verifying the aforesaid fact he shall be responsible for the said laches. It was also mentioned that due to aforesaid reason if it is found that there is break in employment and any other relevant material service of such conductor or employee shall not be regularized. Learned counsel for the respondents pointed out on consideration of the aforesaid facts the office order with regard to regularization of service of the petitioner has not been issued and hence claim of the petitioner cannot be allowed in such circumstances. It is true that the Supreme Court had directed to frame a scheme for regularization of the daily wage employee if they were working for sufficient long time but in the facts and circumstances of the case as discussed above in my view the petitioner is guilty of suppressing the relevant facts as the relevant portion of Annexure 5 as it appears from the original record was not attached with the rejoinder to the counter affidavit. Besides the case of the petitioner was also considered and the respondents have come to a conclusion in the facts and circumstances of the case and in view of specific direction for regularization which is manifest from the original of Annexure 5 that the petitioner is not entitled for regularization of service as indicated Thus on consideration of the entire facts and circumstances of the case I do not find merit in this application. It is accordingly dismissed.” Emphasis Supplied 11. After going through the aforesaid order it appears that the claim of the petitioner no.1 was rejected and this Court has categorically held after verifying the original records of case including the order dated 03.02.1989that the petitioner is not entitled for regularization of service and dismissed the writ application. It has been informed that the said order has attained finality. As such no relief can be granted to the petitioner no.1. So far as petitioner no.2 is concerned in view of the aforesaid facts and looking to the issue of latches on part of petitioner no.2 for not raising the grievance for so many years and also the opinion of this Court in earlier writ application with regards to the order dated 03.02.1989I am of the opinion that interest of justice would be sufficed by giving liberty to the petitioner no.2 to represent before the respondent No.2 along with all supporting documents in his favor for redressal of his grievance as in the list of 377admittedly the name of the petitioner no.2 was at serial no. 343 however since no formal order is on record so as to suggest the reasons for his non regularization. As such if any such representation is filed by the petitioner no.2 within a period of ten weeks then the same shall be disposed of in accordance with law and the applicable rules notification of the respondents within a period of six months from the date of receipt of such representation. With the aforesaid observations the instant writ application stands disposed of.

The court can’t interfere with the conclusion of the Inquiry report if it has been conducted in accordance with law: Odisha HC

Does the court have power and discretion to interfere in the inquiry procedures, where they can decide the eligibility of an inquiry officer or his appointment?, is the underlying question of this case. The Odisha HC in the writ appeal case of Chairman, Odisha Gramya Bank v. Rama Chandra Behera, [W.A. No.62 of 2020, chaired by Justice Sanju Panda & Justice S. K. Panigrahi forwarded a remarkable stand to the above question, answering in negative the court opined that, “Despite the well-settled position, it is painfully disturbing to note that the learned Single Judge has acted like an appellate authority of the disciplinary proceedings and quashed the proceedings wrongly.” The respondent was originally appointed for the post of a clerk-cum-cashier in the Mitrapur Branch of Balasore Gramya Bank in the District of Balasore on 12.06.1985. By the year 1989 the respondent was a promoted several times, yet later that year he was suspected of being involved in various fraudulent and criminal activities which was assumed to have been committed during his time in office as an additional officer. The appointment of Mr. P.K. Bose as the inquiry officer was made and the inquiry against the respondent was initiated. Further upon the completion of the inquiry, the inquiry report was submitted on 02.12.2002 and reply was sought in the second show-cause notice issued to the present respondent within fifteen days from the date of receipt of letter. Respondent sought to challenge the second show-cause notice by way of W.P.(C) No.6558 of 2002 with a prayer to quash the second show-cause notice. The learned Single Judge passed the judgment in favor of respondent, setting aside the second show-cause notice and appointment of P.K. Bose, as inquiry officer. The present writ appeal was brought before the Odisha HC to challenge the judgment dated on 24th December 2019. After examining all the submissions, arguments and evidences forwarded by the councils, the hon’ble HC observed that, “The Respondent’s objection regarding the deuptationist status of the Inquiry officer is also unsustainable because such status of Sri P. K. Bose does not bar his appointment as an Inquiring Officer by the competent authority. Hence, the proposed inquiry report by the Inquiring Officer and the second show-cause notice cannot be held to be non est or void abinitio.” The bench further added that, the decision made by the learned single judge remained unsuccessful in drawing a “reasonable nexus between the submissions of the Respondent herein and the correct position of law”.

ORISSA HIGH COURT: CUTTACK W.A. No.620 From the judgment dated 24.12.2019 passed by the learned Single Judge in W.P.(C) No.65502 Chairman Odisha Gramya Bank versus … Appellant … Mr. Manoj Kumar Mishra Senior Advocate along with M s. T. Mishra S. Senapati S. S. Parida and A. Mishra Mr. Jayant Kumar Rath Senior Advocate along with M s. D. N. Rath P. K. Rout A. K. Saa and N. Panda A Rama Chandra Behera For Appellant For Respondent P R E S E N T: THE HON’BLE KUMARI JUSTICE SANJU PANDA THE HON’BLE MR. JUSTICE S. K. PANIGRAHI Date of hearing : 11.11.2020 Date of judgment : 27.11.2020 S. K. Panigrahi J. This Writ Appeal assails the judgment dated 24.12.2019 passed by learned Single Judge in W.P.(C) No.6558 of 2002 which allowed the Writ Petition filed by the present respondent while interfering in the inquiry process by setting aside the appointment of Sri P. K. Bose as an Inquiry Officer along with all proceedings conducted by him including the second show cause notice in holding that the inquiry proceedings initiated against the present respondent by Sri P.K. Bose is unsustainable illegal improper unjust and also contrary to the settled principle of law. 2. The factual conspectus of the case rests on the fact that the present respondent was appointed as Clerk cum Cashier Balasore Gramya Bank on 13.01.1982 and posted in Mitrapur Branch of Balasore Gramya Bank in the District of Balasore on 12.06.1985. Subsequently he was promoted to the Officer Scale I w.e.f. 28.04.1989. However later he was placed under suspension on the ground of financial irregularities fraudulent activities misappropriation of public Bank’s money and manipulating Bank’s record while working as an Additional Officer in Mitrapur Branch of Balasore Gramya Bank. 3. On the basis of breadth and depth of charges levelled hereinabove the Respondent was slapped with Article of Charges with statement of allegations on 24.09.1998 and additional Article of Charges with statement of allegations on 25.10.1998. The said Article of Charges and statement of allegations portrays the commission of major financial irregularities by way of fraudulent activities misappropriation of public Bank’s money disbursement of loans and advances by manipulating bank records deliberate flouting of Bank’s Rules and procedures displaying gross negligence in duty failure to serve the Bank faithfully and honestly which is grossly deviated from the proverbial ‘reasonable person’. 4. Accordingly the present respondent submitted his reply statement of defence in respect of both the charge sheets. He was afforded opportunity of being heard and procedural fairness. However the competent authority was not very satisfied with the reply given by the delinquent officer present respondent and the said competent authority directed commencement of domestic inquiry by appointing Sri P. K. Bose as an Inquiry Officer. The said inquiry was conducted with a view to prove the allegations or framed against the present respondent without compromising the principles of natural justice. 5. Upon completion of the inquiry the report was submitted by the Inquiring Officer with a finding that the charge sheet levelled against the respondent are proved. The said inquiry report was also concurred by the Chairman and competent authority and came to a conclusion that the respondent had indulged in gross negligence of duty and failed to exercise due care and caution while discharging his duty and responsibility. In addition to this he was also charged with commission of fraud and misappropriation causing withdrawal from the SB Account and wilfully flouting the Rules and Regulations of the Bank by misutilizing his official position. 6. The inquiry report was submitted on 02.12.2002 and reply was sought in the second show cause notice issued to the present respondent within fifteen days from the date of receipt of letter. 7. Aggrieved with the aforesaid report the present respondent sought to challenge the second show cause notice by way of W.P.(C) No.6558 of 2002 with a prayer to quash the second show cause notice. After hearing the said Writ Petition preferred by the respondent herein the learned Single Judge passed the judgment vide order dated 24.12.2019 setting aside the appointment of Sri P.K. Bose as Enquiry Officer along with all proceedings conducted by him including the second show cause notice. He has also held that the appointment of Sri P. K. Bose as an Inquiring Officer remains unsustainable and perverse since it is contrary to provision of Bank’s Service Regulation. Hence it is illegal improper and unjust. 8. Combating the aforesaid view by the learned Single Judge Mr. M.K. Mishra learned Senior Counsel for the appellant assailed the impugned judgment and order dated 24.12.2019 wherein the appointment of Sri P. K. Bose as an Inquiring Officer was set aside and all proceedings conducted by him including the second show cause notice was quashed. He further contended that the jurisdiction of learned Single Judge is circumscribed by limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice but not otherwise. He further averred that the present respondent has participated in the inquiry proceeding before the Inquiring Officer appointed by the competent authority without raising tantrum. The procedural fairness and principles of natural justice were duly complied in a substantive sense. He further reiterated that the findings recorded by the Inquiry Officer are basically findings of fact based on evidence on record and there is no perversity. 9. While the inquiry report was not palatable to him he turned around and subsequently contended that the appointment and competency of Sri P. K. Bose as an Inquiry Officer was unsustainable. The Respondent herein has waived his right to question the competency of the Inquiry Officer at this stage. The findings of the learned Single Judge quashing the appointment of Sri P. K. Bose as an Inquiring Officer and the proceeding connected the Second show cause notice unsustainable perverse and contrary to the facts on record. 10. In the second limb of his argument he submitted that as per Section 17(1) of RRBs Act 1976 which states that the sponsored bank is permitted to send such number of officers or other employees on deputation to Regional Rural Banks as may be necessary or desirable for the efficient performance of the Bank. The said provision is extracted herein below: “17. Staff of Regional Rural Banks. A Regional Rural Bank may appoint such number of officers and other employees as it may consider necessary or desirablefor the efficient performance of its functions and may determine the terms and conditions of their appointment and service: Provided that it shall be lawful for a Sponsor Bank if requested so to do by a Regional Rural Bank sponsored by it to send such number of officers or other employees on deputation to the Regional Rural Bank as may be necessary or desirable for the efficient performance of its functions: Provided further that the remuneration of officers and other employees appointed by a Regional Rural Bank shall be such as may be determined by the Central Government and in determining such remuneration the Central Government shall have due regard to the salary structure of the employees of the State Government and local authorities of comparable level and status in the notified area. 2) Notwithstanding anything contained in the Industrial Disputes Act 1947or any other law for the time being in force no award judgment decree decision or order of any industrial tribunal Court or other authority made before the commencement of this Act shall apply to the terms and conditions in relation to the persons appointed by a Regional Rural Bank. 3) The officers and other employees of a Regional Rural Bank shall exercise such powers and perform such duties as may be entrusted or delegated to them by the Board.” According to the above percepts Sri P. K. Bose who is an Officer in the rank of Middle Management Grade Scale II by sponsored Bank was brought on deputation to Orissa Gramya Bank from Uco. Bank which is the sponsoring Bank which was perfectly as per the provisions of the RRBs Act. 11. He further drew support from the certificatory letter with respect to the question of appointment on deputations as Inquiry Officer from other Banks like Sri P. K. Bose in the instant case. In fact as per Sponsor Bank letter No.PD RRB HO 390 X 14 90 dated 23.02.1990 which has been issued as clarificatory Letter by the NABARD Head Office Mumbai wherein it is stated that the officer of sponsored bank on deputation can be appointed entrusted with the task of Inquiry. In view of the matter appointment of Sri P. K. Bose as an Inquiring Officer is not per se illegal or wrong as canvassed by the counsel for the Respondent. 12. The contention of the present respondent with regard to the seniority of Sri P. K. Bose is also grossly erroneous and not based on facts. Learned Counsel for the Appellant contended that Regulation of Section 30(3) of Balasore Gramya Bank Service Regulations stipulates that the Inquiry Officer to be appointed by the competent authority and he should be a grade higher to the delinquent officer which is in sync with spirit of the said regulation which is extracted herein below: “30(3) The inquiry under this regulation and the procedure with the exception of the final order may be delegated in case the person against whom proceedings are taken as an officer to any officer who is in a grade higher than such officer and in the case of an employee to any officer. For purpose of inquiry the officer or employee may not engage a legal practitioner.” In the present case the Inquiring Officer was a grade higher than that of the present respondent which is also completely in conformity with regulation hence there is no procedural failing. 13. The contentions of the present respondent as articulated by Mr. J K Rath learned Senior Advocate regarding unsuitability of Sri P. K. Bose to be appointed as an Inquiring Officer because of his deputationist status wrongly premised because there is nothing in the Regulation which excluded an officer to be appointed to the service in the RRB fold on deputation. Therefore an officer of the Sponsored Bank on deputation to the RRB is also an officer of RRB for all practical purposes and he is covered within the meaning of definition of officer as contained in Regulation 2(i) of Model Service Regulations. The said Regulation 2(i) is extracted herein below: 2(i) “officer” means a person appointed to any of the posts specified in sub regulationof regulation 3. In view of the above the learned Single Judge has failed to navigate the facts in proper prospective and set aside the appointment of Sri P. K. Bose as Inquiring Officer. 14. We have carefully considered the submission of the learned counsels for the parties and perused the records. On bare perusal of the inquiry report shows that the Appellant was confronted with the oral documentary evidences and procedural fairness have been duly complied. The allegations against the present respondent are quite serious in nature and the competent authority has concurred with the findings of the Inquiring Officer appointed to prove against the delinquent officer. The objection raised by the Counsel for the respondent with respect to the competency of Sri P. K. Bose as an Inquiring Officer is quite erroneous contrary to the RRB Act and the Service Regulations. As per the conjoint reading of the provisions of Regional Rural Bank’s Act 1976 read with Model Staff) Service Regulations and the relevant provisions which have been extracted hereinabove the appointment of Sri P. K. Bose to conduct the inquiry against the delinquent officer does not portray any departure from law. Despite the well settled position it is painfully disturbing to note that the learned Single Judge has acted like an appellate authority of the disciplinary proceedings and quashed the proceedings wrongly. In exercise of its powers under Article 226 227 of the Constitution of India the Writ Court should not venture into re appreciation of the evidence. The High Court can only see whether: a. the Inquiry is held by a competent authority b. the Inquiry is held according to the procedure prescribed in that behalf c. there is violation of the principles of natural justice in conducting the proceedings d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case e. the authorities have allowed themselves to be considerations the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion g. the disciplinary authority had erroneously failed to admit the admissible and material evidence h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding the finding of fact is based on no evidence. Under Article 226 227 of the Constitution of India the High Court shall not: re appreciate the evidence interfere with the conclusions in the Inquiry in case the same has been conducted in accordance with law iii. go into the adequacy of the evidence iv. go into the reliability of the evidence interfere if there be some legal evidence on which findings can be based vi. correct the error of fact however grave it may vii. go into the proportionality of punishment unless it appear to be shocks its conscience. The conclusions drawn in the impugned Inquiry Report over the particularized allegations are based on consideration of relevant materials and evidence. This Court while exercising powers under Article 226 227 of the Constitution of India cannot re appreciate the evidence nor can it interfere with the conclusion of the Inquiry report if it has been conducted in accordance with law. This aspect of law has been succinctly echoed in Union of India New Delhi v. Niranjan Singh1 State of Andhra Pradesh and others v. S. Sree Rama Rao 2 Chennai Metropolitan Water Supply and Sewarage Board v. T. T. Murali Babu3 B.C. Chaturvedi v. Union of India and others4 Union of India and another v. G. Ganayutham5 Om Kumar and others v. Union of India6 Coimbatore District Central Co operative Bank v. Coimbatore District Central Co operative Bank Employees Association and another7 and Chairman cum Managing Director Coal India Limited and another v. Mukul Kumar Choudhuri and others8. 16. The Respondent’s objection regarding the deuptationist status of the Inquiry officer is also unsustainable because such status of Sri P. K. Bose does not bar his appointment as an Inquiring Officer by the competent authority. This position of law further draws 12 AIR 1963 SC 1723 3 AIR 2014 SC 1141 46 SCC 749 52 SCC 386 74 SCC 669 credence from Section 17(1) of the Regional Rural Bank’s Act 1976. Hence the proposed inquiry report by the Inquiring Officer and the second show cause notice cannot be held to be non est or void 17. Another intriguing aspect of the matter forming part of the substantive argument advanced by the Respondent regarding the competency of the Inquiring Officer which was never raised during entire proceedings but when he saw the adverse wind blowing against him after conclusion of the inquiry he raised such issues before the learned Single Judge. With the present set of facts the inquiry has been held in précised factual contours and report has been submitted. The report has been prepared on considering the weight of evidence and materials on record after following due procedure of law. In view of the Inquiry Report the findings cannot be interfered. 18. The Respondent cited some of the precedents like Chiranjib Parida V. State of Orissa represented by the Secretary to the Govt. in Education & Youth Services and others9 Central 8OLR 70 Bank of India v. C. Bernard10 Jalandhar Improvement Trust v. Sampuran Singh11 Harshad Chiman Lal Modi v. D.L.F. Universal Ltd. And another12 and so on to buttress his points but these precedents cited by him do not have any factual resemblance to the set of facts involving the present case. 19. Recounting such an issue Justice V. R. Krishna Iyer has frowned upon in State of Haryana and another v. Rattan Singh13 “….the essence of a judicial approach needs to be based on objectivity exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course fair play is the basis and if perversity or arbitrariness bias or surrender of independence of judgment vitiates the conclusions reached such finding even though of a domestic tribunal cannot be held good. …." In the light of such observation the findings of the learned Single Judge and reducing the Inquiry report to nothingness warrants a meaningful review by this Court. In view of the above discussions and aforenoted decisions the learned Single Judge has failed to establish intelligibly a rational 101 Supreme Court Cases 319 11 AIR 1999 Supreme Court 1437 12 AIR 2005 Supreme Court 446 132 SCC 491 nexus between the submissions of the Respondent herein and the correct position of law. The impugned order embarks upon a wrong conclusion postulating an adverse decision. The Court Tribunal should not mechanically set aside the disciplinary proceedings on such flimsy grounds without application of juridical mind leading to erosion of institutional autonomy of the disciplinary authority. In the result the Writ Appeal is allowed and the impugned judgment dated 24.12.2019 passed by the learned Single Judge in W.P.(C) No.65502 is set aside. No order as to cost. … Sanju Panda J. I agree. .. … Orissa High Court Cuttack The 27th November 2020 AKK LNB AKP

Heirs of a Hindu female are not Strangers but are Family: Supreme Court of India

As per Section 15(1)(d) of the Hindu Succession Act, the heirs of the father of a Hindu female are covered under persons entitled to an intestate succession of property of a female Hindu. Supreme Court of India gave the above-cited judgment in the case of Khushi Ram vs. Nawal Singh & others [Civil Appeal no. 5167 of 2010] presided over by the bench of Hon’ble Justice Ashok Bhushan and Justice R Subhash Reddy. In the instant case, the present appeal was made challenging the judgment of the Punjab Haryana High Court. In the present case, Smt Jagno’s husband had passed away leaving no children because of which u/s 14 of the Hindu Succession Act, 1956, Smt Jagno became the absolute owner of the half share of the concerned property. She later settled the property/land in favor of her brother’s son, due to family settlement action. Later on, in 1991, a suit was filed by Smt Jagno’s brother’s sons for claiming the decree of declaration as owners of the concerned land. No objections were contested against this claim and therefore the trial court had passed the decree. Later on, the appellants (Jagno’s husband’s brother’s children) raised an objection to the above transfer and contended that a Hindu widow cannot constitute a Joint Hindu Family with the descendants of her brother, i.e., her parental side. It was submitted that a family settlement can take place only between members, who have an antecedent title or pre-existing right in the property proposed to be settled. However, the appeal was dismissed by the Trial Court, District Court as well as the High Court. The respondent’s counsel had argued that the term “Family” could not be interpreted in a narrow sense and should be understood in a wider aspect. Observing the arguments of both parties, the Apex Court relied on section 15 of the Hindu Succession Act and stated that “Heirs of the father of a Hindu female are not strangers but are ‘family’”. The Supreme Court bench ruled that “In the present case, Smt. Jagno, who as a widow of Sher Singh, who had died in 1953, had succeeded to half share in the agricultural land and she was the absolute owner when she entered into a settlement. We, 41 thus, do not find any merit in the submission of learned counsel for the appellants that the defendants-respondents were strangers to the family.”

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.51610 KHUSHI RAM & ORS ...APPELLANT(S) NAWAL SINGH & ORS ...RESPONDENT(S JUDGMENT ASHOK BHUSHAN J This appeal has been filed by the plaintiffs of Civil Suit challenging the judgment dated 16.04.2009 of High Court of Punjab & Haryana dismissing the second appeal filed by the appellant The brief facts of the case as emerged from the pleadings of the parties are 2.1 One Badlu who was the tenure holder of agricultural land situate in Village Garhi Bajidpur Tehsil and District Gurgaon had two sons Bali Ram and Sher Singh. Sher Singh died in the year 1953 issueless leaving his widow Smt. Jagno 2.2 Plaintiffs appellants are descendents of Bali Ram. After death of Sher Singh his widow inherited share of her late husband i.e. the half of the agricultural property owned by Badlu. A Civil Suit No.317 of 1991 was filed by Nawal Singh and two others against Smt. Jagno in the Court of Sub Judge Gurgaon claiming decree of declaration as owners in possession of the agricultural land mentioned in the suit to the extent of half share situate in Village Garhi Bajidpur. The plaintiffs claim was that Smt. Jagno who was sharer of the half share has in a family settlement settled the land in favour of the plaintiffs who were the brother’s sons of Smt. Jagno. 2.3 Smt. Jagno filed a written statement in the suit admitting the claim of the plaintiffs Smt. Jagno also made a statement in the suit accepting the claim of plaintiffs the trial court vide its judgment and decree dated 19.08.1991 passed the consent decree in favour of the plaintiffs declaring the plaintiffs owners in possession of the half share in the land. 2.4 The plaintiffs who were descendents of brother of husband of Smt. Jagno filed a Civil Suit No.79 of 1991 in the Court of Senior Sub Judge Gurgaon praying for declaration that the decree passed in Civil Suit No.317 of 1991 dated 19.08.1991 is illegal invalid and without legal necessity The plaintiffs also claimed decree of declaration in their favour declaring them owners in possession of land in question. In Suit No.791 a joint written statement was filed by the defendants. Smt. Jagno was also defendant No.4 in the civil Suit No.791. The defendants supported the decree dated 19.08.1991. The defendants No.1 to 3 claimed land by family settlement out of love and affection by the defendant No.4 which family settlement was duly affirmed by Civil Court decree dated 19.08.1991. 2.5 The trial court framed nine issues. Issue No. 5 being “Whether the decree dated 19.08.1991 passed in civil suit no.317 91 titled Nawal Singh Etc. Vs. Smt. Jagno passed by Sh. K.B. Aggarwal SJIC Gurgaon is illegal invalid without jurisdiction and against custom without legal necessity and consideration and a result of fraud and undue influence and is liable to be set aside 2.6 Issue Nos. 2 to 5 were answered in favour of defendants. The trial court also rejected the argument of the plaintiffs that in absence of registration of decree no right or title would pass in favour of the defendants. Trial court held that registration is required when fresh rights are created for the first time by virtue of decree itself. It was held that in the case in hand defendants were having pre existing right in the suit property under as in a family settlement defendant No.4 acknowledged them as owner and surrendered the possession of the suit property in their favour at the time of family settlement and the decree dated 19.08.1991 merely affirms their pre existing rights and hence does not require 2.7 The plaintiffs aggrieved by the judgment filed first appeal before the learned District Judge which too was dismissed. The First Appellate Court held that under Section 14(1) of the Indian Succession Act a Hindu female become full owner of the property which she acquires before the commencement of the Act and not as a limited owner. The First Appellate Court also held that defendants being near relations of defendant No.4 they cannot be said to be strangers to her. First Appellate Court also held that decree did not require registration. The findings of the trial court were affirmed by the First Appellate Court dismissing the appeal. Aggrieved against the judgment of the First Appellate Court the plaintiffs filed R.S.A. No.7502. Second appeal was admitted on following question of law: “Whether in the absence of any pre existing right with the defendant respondents 1 to 3 a decree of the Indian Registration Act 1908 ” 2.8 The High Court answered the above question of law against the plaintiffs and in favour of the defendants respondents. The High Court held that judgment and the decree rendered in Civil Suit No.3191 dated 19.08.1991 merely recognise the existing right which was created by the oral family settlement. High Court further held that apart from relationship of Smt. Jagno with defendants respondents 1 to 3 she has developed close affinity love and affection for defendant respondent Nos.1 to 3 as per the findings recorded by the learned Courts below. The High Court dismissed the second appeal aggrieved against which judgment this appeal has been filed. We have heard Shri Ranbir Singh Yadav learned counsel for the appellant and Shri Manoj Swarup learned senior counsel for the respondent. Learned counsel for the appellants Shri Yadav submits that no family settlement could have been entered by Smt. Jagno in favour of defendant Nos.1 to 3 they being strangers to the family. A Hindu widow cannot constitute a Joint Hindu Family with the descendants of her brother i.e. her parental side Family settlement can take place only between members who have antecedent title or pre existing right in the property proposed to be settled. Smt Jagno could have transferred her absolute share in favour of the respondents or to any stranger only in accordance with law by complying with the provisions of the Transfer of Property Act 1882 the Indian Registration Act 1908 and the Indian Stamp Act 1899. Learned counsel further contends that registration of compromise decree was compulsory by virtue of Section 17 of the Indian Registration Act and the decree dated 19.08.1991 having not been registered it did not confer any valid title to the defendant Nos.1 to 3. All the Courts below committed error in upholding the decree dated 19.08.1991 whereas the decree being an unregistered decree was liable to be ignored and declared in operative. Shri Manoj Swarup learned senior counsel for the respondents refuting the submissions of the learned counsel for the appellant contends that defendant Nos.1 to 3 had pre existing right in the suit property which was clear from the pleadings of Civil Suit No.317 of 1991. In the above suit it was settlement arrangement took place about two years back and since then plaintiffs are owners in possession of land and defendant No.4 had relinquished all her rights therein. It is submitted that decree passed in the Civil Suit dated 19.08.1991 only declared the existing rights of the defendant Nos.1 to 3 which was based on the family settlement. It is submitted that the defendant Nos.1 to 3 being brother’s sons of Smt Jagno they were not strangers to Smt. Jagno and family settlement could have been very well entered by Smt. Jagno with them. It is submitted that the expression “family” for the purpose of family settlement is not to be given any narrow meaning it should be given a wide meaning to cover the members who are by any means related. It is further submitted that the decree dated 19.08.1991 did not require any registration under Section 17 of the Indian Registration Act 1908. The decree was passed with regard to subject matter of the suit property it was exempted from registration by virtue of Section 17(2)(vi) of the Indian Registration Act 1908. Shri Swarup further contends that the family settlement could have been made out of love and affection with regard to which there was ample pleading in the Civil Suit No.3191 and out of love and affection defendant No.4 Smt. Jagno could have very well settled the properties in favour of defendant Nos.1 to 3 her nephews being brother’s Learned counsel for the parties have relied on judgments of this Court for their respective submissions which shall be referred to while considering the submissions in detail. The Civil Suit No.791 which gives rise to this appeal was a suit where following reliefs were claimed by plaintiffs appellants: “10. That the plaintiffs therefore pray that a decree for declaration to the effect that the decree in question passed in Civil Suit No.317 of 1991 dated 19.8.1991 is illegal invalid without legal necessity and consideration on the grounds stated above in the plaint and the same does not convey any title in favour of the defendants No.1 to 3 and does not effect any reversionary rights of the plaintiffs and the plaintiffs are owners in possession of the land in question fully detailed and described in para no.3 of the plaint above with consequential relief of permanent injunction restraining the defendants further alienating the land in question to anyone else may kindly be passed in favour of the plaintiffs and against the defendants with costs of this suit Any other relief which this Hon’ble Court may deems fit and proper may also be granted to the plaintiffs.” There is no dispute between the parties that Shri Sher Singh husband of Smt. Jagno had half share in the agricultural land situate in village Garhi Bajidpur which was suit property. Sher Singh died in 1953. Smt. Jagno after enforcement of the Hindu Succession Act 1956 by virtue of Section 14 became the absolute owner of the half share of the suit property. The bone of contention between the parties centres round the decree dated 19.08.1991 passed by the Sub Judge in Civil Suit No.3191 filed by defendant Nos.1 to 3 against Smt. Jagno seeking declaration that they are owners in possession of the suit land. In Civil Suit No.317 of 1991 following was pleaded in paragraphs 2 and 3: “2. That the parties are closely related to each other the plaintiffs are nephews of the deft and constituted a Joint Hindu Family. The deft Smt. Jagno Devi is the daughter of Sh. Shib Lal the grand father of the plaintiffs That the defendant is living with the plaintiffs at Village Chakerpur and the plaintiffs are looking after her in her old age and the deft has no issue. The deft is very happy with the services of the plaintiff rendered to her and out of love and affection the deft had allotted the above mentioned land to the plaintiffs in equal share in a family settlement arrangement which took place about 2 years back and since then the plaintiffs are owners in possession of the said land and the deft had relinquished all rights 10. In the aforesaid suit written statement was filed by Smt. Jagno admitting the claim of the defendants. The trial court in its decree dated 19.08.1991 held following in paragraph 2: “2. The defendant appeared and filed written statement admitting in toto the claim of the plaintiffs. Statements of the parties were also recorded. In view of the written statement and statements of parties a consent decree in favour of the plaintiffs and against the defendant is passed for declaration as prayed for leaving the parties to bear their own costs. Decree sheet be prepared and file be consigned to the record room.” 11. In this appeal following two questions arise for Whether the decree dated 19.08.1991 passed in Civil Suit No.317 of 1991 requires registration under Section 17 of the Indian Registration Act 1908 and 2) Whether the defendant Nos.1 to 3 were strangers to defendant No.4 so as to disable her to enter into any family arrangement with defendant Nos.1 to 3 12. There is no dispute that in the earlier Civil Suit No.317 of 1991 in which consent decree was passed on 19.08.1991 the subject matter of suit was the agricultural land situated in Village Garhi Bajidpur. Further the suit was decreed on the written statement filed by Smt. Jagno accepting the claim of plaintiffs that there was family settlement between the parties in which the half share in the land was given to the plaintiffs of Civil Suit No.317 of 1991. The question is as to whether the decree passed on 19.08.1991 required registration under Section 17 of the Indian Registration Act 1908 Sections 17(1) and 17(2)(vi) which are relevant for the present case are as follows: “17. Documents of which registration is compulsory.—(l) The following documents shall be registered if the property to which they relate is situate in a district in which and if they have been executed on or after the date on which Act No. XVI of 1864 or the Indian Registration Act 1866 or the Indian Registration Act 1871 or the Indian Registration Act 1877 or this Act came or comes into force namely:— a) instruments of gift of immovable b) other non testamentary instruments which purport or operate to create declare assign limit or extinguish whether in present or in future any right title or interest whether vested or contingent of the value of one hundred rupees and upwards to or in immovable c) non testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation declaration assignment limitation or extinction of any such right title or interest and d) leases of immovable property from year to year or for any term exceeding one year or reserving a yearly rent e) non testamentary transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create declare assign limit or extinguish whether in present or in future any right title or interest whether vested or contingent of the value of one hundred rupees and upwards to or in immovable property:] Provided that the State Government may by order published in the Official Gazette exempt from the operation of this sub section any lease executed in any district or part of a district the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees 2) Nothing in clausesandof sub sectionapplies to— vi) any decree or order of a Court except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject matter of the suit or proceeding 13. The submission of the learned counsel for the appellant is that there was no existing right in the plaintiffs of Civil Suit No.317 of 1991 hence the decree dated 19.08.1991 required registration under Section 17(1)(b) since decree created right in favour of the plaintiffs. In support of his submission he has placed reliance on judgment of this Court in Bhoop Singh Vs. Ram Singh Major and Ors. 5 SCC 709 where this Court held that decree or order including compromise decree granting new right title or interest in praesenti in immovable property of value of Rs.100 or above is compulsorily registrable In paragraphs 17 and 18 of the judgment following was laid down: “17. It would therefore be the duty of the court to examine in each case whether the parties have pre existing right to the immovable property or whether under the order or decree of the court one party having right title or interest therein agreed or suffered to extinguish the same and created right title or interest in praesenti in immovable property of the value of Rs 100 or upwards in favour of other party for the first time either by compromise or pretended consent. If latter be the position the document is 18. The legal position qua clause Compromise decree if bona fide in the sense that the compromise is not a device to obviate payment of stamp duty and frustrate the law relating to registration would not require registration. In a converse situation it would require If the compromise decree were to create for the first time right title or interest in immovable property of the value of Rs 100 or upwards in favour of any party to the suit the decree or order would require registration 3) If the decree were not to attract any of the clauses of sub sectionof Section 17 as was the position in the aforesaid Privy Council and this Court s cases it is apparent that the decree would not require 4) If the decree were not to embody the terms of compromise as was the position in Lahore case benefit from the terms of compromise cannot be derived even if a suit were to be disposed of because of the compromise in 5) If the property dealt with by the decree be not the “subject matter of the suit or proceeding” clause of sub section of the Registration Act which having not been done the judgment was set aside and the case was remanded for the consideration of the question of law. The observation of this Court in the above judgment is to the following effect: “ …..The second Appellate Court was required to examine this aspect of the case. As it is a substantial question of law which fell for consideration under Section 100 CPC as could be seen the impugned judgment passed by the High Court is simply concurred with the finding of fact concurred with by the first Appellate Court in its judgment in exercise of its appellate jurisdiction and it had not adverted to the substantial question of law with respect to compulsory registration of a decree in favour of the first defendant and the consequences for non registration of a decree under Section 17(2)(vi) of the Act and the law laid down by this Court in the case of Bhoop Singh vs. Ram Singh Major & Ors. 5 SCC 709 is not applied to the case on hand which rendered the impugned judgment and decree bad in law. In view of the reasons stated supra we set aside the impugned judgment and decree passed by the High Court and remand the matter to it with a request to reconsider the matter after framing the substantial questions of law that would arise for consideration and hear the parties and pass appropriate orders in accordance with law. Since the matter is of 1995 we request the High Court to dispose of the matter as expeditiously as possible but not later than six months from the date of receipt of a copy of this The appeal is disposed of 16. From the above judgment it is not clear as to whether the decree which was passed on the basis of family settlement relate to the suit property or the property which was covered in the decree was not part of the suit land. The above fact is crucial and it is yet to be determined in view of the remand by this Court hence the said judgment cannot be said to be lend any support to the learned counsel for the appellant. 17. Shri Manoj Swarup learned counsel for the respondents has on the other hand placed reliance on judgment of Som Dev and Ors. Vs. Rati Ram and Anr. 2006) 10 SCC 788. The above was a case where decree was based on an admission recognising pre existing rights under family arrangement. This court held that in the above case the decree did not require registration under Section 17(1)(b). 18. This Court in a subsequent judgment in K Raghunandan and Ors. Vs. Ali Hussain Sabir and Ors. 2008) 13 SCC 102 Court had occasion to interpret Section 17 and laid down following in paragraphs 23 24 25 and 28: “23. Sub sectionof Section 17 of the Act however carves out an exception therefrom stating that nothing in clauses b) andof sub sectionof Section 17 would inter alia apply to “any decree or order of a court except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject matter of the suit or proceeding”. Even if the passage was not the subject matter of the suit indisputably in terms of the Code of Civil Procedure Act 1976 a compromise decree was permissible 24. A plain reading of the said provision clearly shows that a property which is not the subject matter of the suit or a proceeding would come within the purview of exception contained in clause of sub sectionof Section 17 of the Act If a compromise is entered into in respect of an immovable property comprising other than that which was the subject matter of the suit or the proceeding the same would require registration. The said provision was inserted by Act 229 25. The Code of Civil Procedure Amendment) Act 1976 does not and cannot override the provisions of the Act. The purported passage being not the subject matter of the suit if sought to be transferred by the respondent defendants in favour of the appellant plaintiffs or if by reason thereof they have relinquished their own rights and recognised the rights of the appellant plaintiffs registration thereof was imperative. The first appellate court held so. The High Court also accepted the said 28.Bhoop Singh5 SCC 709] inter alia lays down:Compromise decree if bona fide in the sense that the compromise is not a device to obviate payment of stamp duty and frustrate the law relating to registration would not require registration. In a converse situation it would require 2) If the compromise decree were to create for the first time right title or interest in immovable property of the value of Rs 100 or upwards in favour of any party to the suit the decree or order would require registration.” emphasis in original Thus indisputably if the consent terms create a right for the first time as contradistinguished from recognition of a right registration thereof would be required if the value of the property is Rs 100 and upwards.” 19. In the above judgment the case of Bhoop Singh was also considered and distinguished. In a recent judgment delivered by Two Judge Bench of this Court of which one of us was also member the judgment of Bhoop Singh and Som Dev came to be considered in Mohammade Yusuf & Ors. Vs. Rajkumar Ors. 2020(3) SCALE 146. The question arose in the above case was also non registration of a decree on the basis of which the Court has refused to admit the decree in evidence in a subsequent suit. This Court had occasion to interpret Section 17 and had also considered the Bhoop Singh and Som Dev’s case. In paragraphs 6 8 13 and 14 of the judgment which are relevant are as follows: “6. A compromise decree passed by a Court would ordinarily be covered by Section 17(1)(b) but sub sectionof Section 17 provides for an exception for any decree or order of a court except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject matter of the suit or proceeding. Thus by virtue of sub section of Section 17 any decree or order of a court does not require registration. In sub clause one category is excepted from sub clause i.e. a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject matter of the suit or proceeding Thus by conjointly reading Section 17(1 b) and Section 17(2)(vi) it is clear that a compromise decree comprising immovable property other than which is the subject matter of the suit or proceeding requires registration although any decree or order of a court is exempted from registration by virtue of Section 17(2 vi). A copy of the decree passed in Suit No. 250 A of 1984 has been brought on record as Annexure P 2 which indicates that decree dated 4 10 1985 was passed by the Court for the property which was subject matter of the suit. Thus the exclusionary clause in Section 17(2)(vi is not applicable and the compromise decree dated 4 10 1985 was not required to be registered on plain reading of Section 17(2)(vi). The High Court referred to the judgment of this Court in Bhoop Singh Vs. Ram Singh Major and Others 1995) 5 SCC 709 in which case the provision of Section 17(2)(vi) of the Registration Act came for consideration This Court in the above case while considering clause laid down the following in paras 16 17 and 18: “16. We have to view the reach of clausewhich is an exception to sub section bearing all the aforesaid in mind. We would think that the exception engrafted is meant to cover that decree or order of a court including a decree or order expressed to be made on a compromise which declares the pre existing right and does not by itself create new right title or interest in praesenti in immovable property of the value of Rs 100 or upwards Any other view would find the mischief of avoidance of registration which requires payment of stamp duty embedded in the decree or order 17. It would therefore be the duty of the court to examine in each case whether the parties have pre existing right to the immovable property or whether under the order or decree of the court one party having right title or interest therein agreed or suffered to extinguish the same and created right title or interest in praesenti in immovable property of the value of Rs 100 or upwards in favour of other party for the first time either by compromise or pretended consent If latter be the position the 18. The legal position qua clause vi) can on the basis of the summarised as below 1) Compromise decree if bona fide in the sense that the compromise is not a device to obviate payment of stamp duty and relating to registration registration. In a converse situation it 2) If the compromise decree were to create for the first time right title or interest in immovable property of the value of Rs 100 or upwards in favour of any party to the suit the decree or order would 3) If the decree were not to attract any of the clauses of sub section 1) of Section 17 as was the position in the aforesaid Privy Council and this Court s cases it is apparent that the decree would not require 4) If the decree were not to embody the terms of compromise as was the position in Lahore case benefit from the terms of compromise cannot be derived even if a suit were to be disposed of because of the compromise 5) If the property dealt with by the decree be not the “subject matter of the suit or proceeding” clause of sub section would not operate because of the amendment of this clause by Act 21 of 1929 which has its origin in the aforesaid decision of the Privy Council according to which the original clause would have been attracted even if it property not litigated.” 8. Following the above judgment of Bhoop Singhthe High Court held that since the compromise decree dated 4 10 1985 did not declare any pre existing right of the plaintiff hence it requires registration. The High Court relied on the judgment of Gurdwara Sahib Vs. Gram Panchayat Village Sirthala and another supra) and made following observations in paras 11 12 and 13: “11. In the present case in the earlier suit CS No. 250 A 1984 the petitioner had claimed declaration of title on the plea of adverse possession and the compromise decree was passed in the suit. The very fact that the suit was based upon the plea of adverse possession reflects that the petitioner had no pre existing title in the suit property. Till the suit was decreed the petitioner was a mere encroacher at the most denying the title of 12. The Supreme Court in the matter of Gurdwara Sahib v. Gram Sirthala reported in1 SCC 669 has settled that declaratory decree based on plea of adverse possession cannot be claimed and adverse possession can be used only as shield in defence by the defendant. It has been held that: “7. In the Second Appeal the relief of ownership by adverse possession is again denied holding that such a suit is not cannot be any quarrel to this extent the judgments of the courts below are correct and without any blemish. Even if the plaintiff is found to be in adverse possession it cannot seek a declaration to the effect that such adverse possession has matured into ownership Only if proceedings filed against the appellant and appellant is arrayed as the defendant that it can 13. The plea of the petitioner based upon Section 27 of the Limitation Act is found to be devoid of any merit since it relates to the extinction of the right of the lawful owner after expiry of the Limitation Act but in view of the judgment of the Sahibthe petitioner cannot claim himself to be the owner automatically after the expiry of the said limitation.” 13. This Court in Som Dev v. Rati Ram and 10 SCC 788 while explaining Section 17(2)(vi) and Sections 17(1)(b) andheld that all decrees and orders of the Court including compromise decree subject to the exception as referred that the properties that are outside the subject matter of the suit do not require registration. In para 18 this Court laid down the following: “18. … But with respect it must be pointed out that a decree or order of a court does not require registration if it is not based on a compromise on the ground that clausesandof Section 17 of the Registration Act are attracted. Even a decree on a compromise does not require registration if it does not take in property that is not the 14. In the facts of the present case the decree dated 4 10 1985 was with regard to the property which was the subject matter of the suit hence not covered by exclusionary clause of Section 17(2)(vi and the present case is covered by the main exception crafted in Section 17(2 vi) i.e. “any decree or order of a court”. When registration of an instrument as required by Section 17(1)(b) is specifically excluded by Section 17(2)(vi by providing that nothing in clauses of sub sectionapplies to any decree or order of the court we are of the view that the compromise decree dated 4 10 1985 did not require registration and the learned Civil Judge as well as the High Court erred in holding otherwise. We thus set aside the order of the Civil Judge dated 7 1 2015 as well as the judgment of the High Court dated 13 2 2017. The compromise decree dated 4 10 1985 is directed to be exhibited by the trial court. The appeal is allowed 20. This Court held that since the decree which was sought to be exhibited was with regard to the property which was subject matter of suit hence was not covered by exclusionary clause of Section 17(2 vi) and decree did not require registration. The issue in the present case is squarely covered by the above judgment. We thus conclude that in view of the fact that the consent decree dated 19.08.1991 relate to the subject matter of the suit hence it was not required to be registered under Section 17(2 vi) and was covered by exclusionary clause. Thus we answer question No.1 that the consent decree dated 19.08.1991 was not registrable and Courts below have rightly held that the decree did not require registration. 21. The submission of the learned counsel for the appellant is that the consent decree was passed in favour of nephews of Smt. Jagno who do not belong to the family of the plaintiffs appellants. It is submitted that plaintiffs appellants belonged to the family of Badlu who was the tenure holder of the property. It is submitted that the defendants respondents belong to family of Smt. Jagno being brother’s son of Smt. Jagno i.e. nephews hence they belong to different family and no family arrangement could have been entered with them. 22. Before we answer the above issue it is necessary to find out what is the concept of family with regard to which a family settlement could be entered. A Three Judge bench of this Court in Ram Charan Das Vs Girjanandini Devi and Ors. 1965 SCR 841 had occasion to consider a family settlement regarding the immovable property this Court laid down that every party taking benefit under a family settlement must be related to one another in some way and have a possible claim to the property or a claim or even a semblance of a claim. Following was laid down at page 851: “....................In the first place once it is held that the transaction being a family settlement is not an alienation it cannot amount to the creation of an interest. For as the Privy Council pointed out in Mst. Hiran Bibi case44] in a family settlement each party takes a share in the property by virtue of the independent title which is admitted to that extent by the other parties. It is not necessary as would appear from the decision in Rangasami Gounden v. Nachiaopa Goundenthat every party taking benefit under a family settlement must necessarily be shown to have under the law a claim to a share in the property. All that is necessary is that the parties must be related to one another in some way and have a possible claim to the property or a claim or even a semblance of a claim on 23. A Three Judge Bench in the celebrated judgment of this Court in Kale and Ors. Vs. Deputy Director of Consolidation and Ors. 3 SCC 119 had elaborately considered all contours of the family settlement. This Court laid down that term “family” has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title a semblance of a claim or even if they have a spes successionis. In paragraphs 9 and 10 this Court laid down following: “9. Before dealing with the respective contentions put forward by the parties we would like to discuss in general the effect and value of family arrangements entered into between the parties with a view to resolving disputes once for all By virtue of a family settlement or arrangement members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes settle and resolve their conflicting claims or disputed titles once for all in order to buy peace of mind and bring about complete harmony and goodwill in the family. The family arrangements are governed by a special equity peculiar to themselves and would be enforced if honestly made. In this connection Kerr in his valuable treatise Kerr on Fraud at p 364 makes the following pertinent observations regarding the nature of the family arrangement which may be extracted “The principles which apply to the case of ordinary compromise between strangers do not equally apply to the case of compromises in the nature of family arrangements. Family arrangements are governed by a special equity peculiar to themselves and will be enforced if honestly made although they have not been meant as a compromise but have proceeded from an error of all parties originating in mistake or ignorance of fact as to what their rights actually are or of the points on which their rights The object of the arrangement is to protect the family from long drawn litigation or perpetual strifes which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family. Today when we are striving to build up an egalitarian society and are trying for a complete reconstruction of the society to maintain and uphold the unity and homogeneity of the family which ultimately results in the unification of the society and therefore of the entire country is the prime need of the hour. A family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administration of social justice. That is why the term “family” has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title a semblance of a claim or even if they have a spes successionis so that future disputes are sealed for ever and the family instead of fighting claims inter se and wasting time money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger interest of the country. The courts have therefore leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. Where the courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits. The law in England on this point is almost the same. In Halsbury s Laws of England Vol. 17 Third Edition at pp 215 216 the following apt observations regarding the essentials of the family settlement and the principles governing the existence of the same are made “A family arrangement is an agreement between members of the same family intended to be generally and reasonably for the benefit of the family either by compromising doubtful or disputed rights or by preserving the family property or the peace and security of the family by avoiding litigation or by saving its The agreement may be implied from a long course of dealing but it is more usual to embody or to effectuate the agreement in a deed to which the term “family arrangement” is applied Family arrangements are governed by principles which are not applicable to dealings between strangers. The court when deciding the rights of parties under family arrangements or claims to upset such arrangements considers what in the broadest view of the matter is most for the interest of families and has regard to considerations which in dealing with transactions between persons not members of the same family would not be taken into account. Matters which would be fatal to the validity of similar transactions between strangers are not objections to the binding effect of family arrangements.” 10. In other words to put the binding effect and the essentials of a family settlement in a concretised form the matter may be reduced into the form of the “(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family 2) The said settlement must be voluntary and should not be induced by fraud coercion or undue influence 3) The family arrangement may be even oral in which case no registration is necessary 4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is therefore not compulsorily 5) The members who may be parties to the family arrangement must have some antecedent title claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the Even if bona fide disputes present or possible which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.” 24. After reviewing the earlier decision this Court laid down following in paragraph 19: “19. Thus it would appear from a review of the decisions analysed above that the courts have taken a very liberal and broad view of the validity of the family settlement and have always tried to uphold it and maintain it. The central idea in the approach made by the courts is that if by consent of parties a matter has been settled it should not be allowed to be reopened by the parties to the agreement on frivolous or untenable 25. In the above case the Kale with whom the two sisters of his mother entered into family settlement was not a legal heir within meaning of U.P. Tenancy Act 1939 but the family settlement entered with Kale was upheld by this Court. Following was laid down in paragraph 27: “27. As regards the first point it appears to us to be wholly untenable in law. From the principles enunciated by us and the case law discussed above it is absolutely clear that the word “family” cannot be construed in a narrow sense so as to confine the parties to the family arrangement only to persons who have a legal title to the property. Even so it cannot be disputed that appellant Kale being the grandson of Lachman and therefore a reversioner at the time when the talks for compromise took place was undoubtedly a prospective heir and also a member of the family. Since Respondents 4 and 5 relinquished their claims in favour of appellant Kale in respect of Khatas Nos. 5 and 90 the appellant according to the authorities mentioned above would be deemed to have antecedent title which was acknowledged by Respondents 4 and 5. Apart from this there is one more important consideration which clearly shows that the family arrangement was undoubtedly a bona fide settlement of disputes. Under the family arrangement as referred to in the mutation petition the Respondents 4 and 5 were given absolute and permanent rights in the lands in dispute. In 1955 when the compromise is alleged to have taken place the Hindu Succession Act 1956 was not passed and Respondents 4 & 5 would have only a limited interest even if they had got the entire property which would ultimately pass to appellant Kale after their death. Respondents 4 & 5 thought that it would be a good bargain if by dividing the properties equally they could retain part of the properties as absolute owners. At that time they did not know that the Hindu Succession Act would be passed a few months later. Finally the compromise sought to divide the properties between the children of Lachman namely his two daughters and his daughter s son appellant Kale in equal shares and was therefore both fair and equitable. In fact if Respondents 4 & 5 would have got all the lands the total area of which would be somewhere about 39 acres they might have to give away a substantial portion in view of the ceiling law. We have therefore to see the circumstances prevailing not after the order of the Assistant Commissioner was passed on the mutation petition but at the time when the parties sat down together to iron out differences. Having regard to the circumstances indicated above we cannot conceive of a more just and equitable division of the properties than what appears to have been done by the family arrangement. In these circumstances therefore it cannot be said that the family settlement was not bona fide Moreover Respondents 4 and 5 had at no stage raised the issue before the revenue courts or even before the High Court that the settlement was not bona fide. The High Court as also Respondent 1 have both proceeded on the footing that the compromise was against the statutory provisions of law or that it was not registered although it should have been registered under the Registration Act.” 26. Reverting to the facts of the present case admittedly the defendants respondents were nephews i.e. brother’s sons of Smt. Jagno. We need to look into the Hindu Succession Act 1956 Section 15 which deals with the general rules of succession in the case of female Hindus for properties inherited by female Hindus which are devolved in according to Sections 15 and 16. Section 15(1) which is relevant is as follows: “15. General rules of succession in the case of female Hindus.—(1)The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16 — a) firstly upon the sons and daughters including the children of any pre deceased son or daughter) and the husband b) secondly upon the heirs of the c) thirdly upon the mother and father d) fourthly upon the heirs of the father and e) lastly upon the heirs of the mother.” 27. A perusal of Section 15(1)(d) indicates that heirs of the father are covered in the heirs who could succeed. When heirs of father of a female are included as person who can possibly succeed it cannot be held that they are strangers and not the members of the family qua the female. 28. In the present case Smt. Jagno who as a widow of Sher Singh who had died in 1953 had succeeded to half share in the agricultural land and she was the absolute owner when she entered into settlement. We thus do not find any merit in the submission of learned counsel for the appellants that the defendants respondents were strangers to the family 29. In view of our discussions on above two questions we do not find any merit in this appeal All the Courts have rightly dismissed the suit of the plaintiffs appellants which need no interference This appeal is dismissed. Parties shall bear their own costs. ASHOK BHUSHAN ( R. SUBHASH REDDY New Delhi February 22 2021

For conviction under section 304B IPC, specific roles of the accused must be proved: Supreme Court of India

The trial court had not referred to any specific instances where the appellant No.2   namely,   the   mother­-in-­law   of the deceased had been ascribed any specific role in making the demand and inflicting cruelty on vague statements are being made that the husband and in-law of the deceased had made a demand for dowry and inflicted cruel treatment. Such vague statements are not sufficient for conviction under section 304B IPC. Such an observation was made by the Hon’ble Supreme Court of India before Hon’ble Justice N.V. RAMANA & Hon’ble Justice A.S. BOPANNA & Hon’ble Justice HIMA KOHLI in the matter of Kuljit Singh & Anr.  vs The State of Punjab [CRIMINAL APPEAL NO.  572  OF 2012  ] on 08.12.2021 The facts of the matter were that the deceased and accused no. 1 had been married in the year 1997 and the incident in question leading to the death of Manju had occurred on 02.03.1999. The death of the wife @ Manju was unnatural and occurred due to the consumption of insecticide. The Hon’ble Supreme Court observed that the trial court has referred to the evidence in detail and the   High   Court has reappreciated the same in its correct perspective,   to the extent of both the courts holding the appellant   No.1   (Kuljit   Singh)   guilty,   convicting him and imposing the sentence in the manner as done, is justified and does not call for interference. The only aspect which requires consideration herein is whether the conviction and sentence handed down to appellant   No.2   (Raj   Rani) are justified or not? Further, the Hon’ble Supreme Court observed that except for making vague statements to the effect that the husband and the in­laws of their daughter had made a demand for dowry and inflicted cruel treatment, the trial court had not referred to any specific instances where the appellant No.2   namely,   the   mother­in­law   of the deceased had been ascribed any specific role in making the demand and inflicting cruelty. As noted from the statement recorded under Section 313 of Cr.PC, the appellant No.2 (Raj Rani) had denied any role and had also contended that she was not present in the house when the death of her daughter ­in ­law had occurred. Though the presence of appellant No.1(Kuljit Singh) was established, the presence of appellant No.2 (Raj Rani) was not spoken about. Apart from that, there is no specific evidence with regard to such demand being made by appellant No.2 or cruelty being inflicted by her pursuant to such demand. Finally, the Hon’ble Supreme Court partly allowed the appeal and held that the above evidence is not sufficient for conviction under section 304B IPC and acquitted accused no. 2 (Raj Rani). Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur The facts of the matter were that the deceased and accused no. 1 had been married in the year 1997 and the incident in question leading to the death of Manju had occurred on 02.03.1999. The death of the wife @ Manju was unnatural and occurred due to the consumption of insecticide. The Hon’ble Supreme Court observed that the trial court has referred to the evidence in detail and the   High   Court has reappreciated the same in its correct perspective,   to the extent of both the courts holding the appellant   No.1   (Kuljit   Singh)   guilty,   convicting him and imposing the sentence in the manner as done, is justified and does not call for interference. The only aspect which requires consideration herein is whether the conviction and sentence handed down to appellant   No.2   (Raj   Rani) are justified or not? Further, the Hon’ble Supreme Court observed that except for making vague statements to the effect that the husband and the in­laws of their daughter had made a demand for dowry and inflicted cruel treatment, the trial court had not referred to any specific instances where the appellant No.2   namely,   the   mother­in­law   of the deceased had been ascribed any specific role in making the demand and inflicting cruelty. As noted from the statement recorded under Section 313 of Cr.PC, the appellant No.2 (Raj Rani) had denied any role and had also contended that she was not present in the house when the death of her daughter ­in ­law had occurred. Though the presence of appellant No.1(Kuljit Singh) was established, the presence of appellant No.2 (Raj Rani) was not spoken about. Apart from that, there is no specific evidence with regard to such demand being made by appellant No.2 or cruelty being inflicted by her pursuant to such demand. Finally, the Hon’ble Supreme Court partly allowed the appeal and held that the above evidence is not sufficient for conviction under section 304B IPC and acquitted accused no. 2 (Raj Rani). Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur The Hon’ble Supreme Court observed that the trial court has referred to the evidence in detail and the   High   Court has reappreciated the same in its correct perspective,   to the extent of both the courts holding the appellant   No.1   (Kuljit   Singh)   guilty,   convicting him and imposing the sentence in the manner as done, is justified and does not call for interference. The only aspect which requires consideration herein is whether the conviction and sentence handed down to appellant   No.2   (Raj   Rani) are justified or not? Further, the Hon’ble Supreme Court observed that except for making vague statements to the effect that the husband and the in­laws of their daughter had made a demand for dowry and inflicted cruel treatment, the trial court had not referred to any specific instances where the appellant No.2   namely,   the   mother­in­law   of the deceased had been ascribed any specific role in making the demand and inflicting cruelty. As noted from the statement recorded under Section 313 of Cr.PC, the appellant No.2 (Raj Rani) had denied any role and had also contended that she was not present in the house when the death of her daughter ­in ­law had occurred. Though the presence of appellant No.1(Kuljit Singh) was established, the presence of appellant No.2 (Raj Rani) was not spoken about. Apart from that, there is no specific evidence with regard to such demand being made by appellant No.2 or cruelty being inflicted by her pursuant to such demand. Finally, the Hon’ble Supreme Court partly allowed the appeal and held that the above evidence is not sufficient for conviction under section 304B IPC and acquitted accused no. 2 (Raj Rani). Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur Further, the Hon’ble Supreme Court observed that except for making vague statements to the effect that the husband and the in­laws of their daughter had made a demand for dowry and inflicted cruel treatment, the trial court had not referred to any specific instances where the appellant No.2   namely,   the   mother­in­law   of the deceased had been ascribed any specific role in making the demand and inflicting cruelty. As noted from the statement recorded under Section 313 of Cr.PC, the appellant No.2 (Raj Rani) had denied any role and had also contended that she was not present in the house when the death of her daughter ­in ­law had occurred. Though the presence of appellant No.1(Kuljit Singh) was established, the presence of appellant No.2 (Raj Rani) was not spoken about. Apart from that, there is no specific evidence with regard to such demand being made by appellant No.2 or cruelty being inflicted by her pursuant to such demand. Finally, the Hon’ble Supreme Court partly allowed the appeal and held that the above evidence is not sufficient for conviction under section 304B IPC and acquitted accused no. 2 (Raj Rani).

This appeal is directed against the judgment dated Chandigarh in CRA­S­307­SB of 2002. By the said judgment Penal Code was examined as PW1 and the mother of the deceased was examined as PW8 while another witness Bidhi Chand was appellant No.1. The evidence tendered by the said witnesses accepted by both the courts. In that background the evidence to organo phosphorous poisoning. Hence as noted the death was unnatural and there was demand for dowry. In those circumstances the further evidence of PW1 and PW8 the secure fulfilment of the said demand but the parents being It was also stated by them that during such visit she had mentioned about the ill­treatment meted out to her. But the Considering the fact that on all these aspects of the the High Court has reappreciated the same in its correct perspective to the extent of both the courts holding the appellant No.1 guilty convicting him and to whether the conviction and sentence handed down to the appellant No.2 is justified or not The learned counsel for the appellant in that regard has strenuously No.2 namely the mother­in­law of the deceased had been cruelty. As noted from the statement recorded under Section rightly noted by the trial court it had come in the evidence through the deposition of Bittu that he and appellant No.1 had taken the deceased to Dr. Kalsi and thereafter to Shri Guru Ram Dass Hospital Amritsar though the version given by the said witness was because she was pregnant. However it has been established that such shifting to poisonous substance being consumed. Therefore though the presence of the appellant No.1(Kuljit Singh) was established being inflicted by her pursuant to such demand. From the made that the husband and in­laws of the deceased had mother had done so without specifying their roles. However as appellant No.1 guilty but same would be we are of the opinion that the appellant No.2 is For the reasons stated above the conviction and sentence imposed on the appellant No.1 is affirmed while the conviction and sentence imposed on the appellant No.2 is set aside. The judgment dated 08.01.2002 in Sessions Case No.74 1999 and the judgment The appellant No.1 who is on bail shall 11. Pending applications if any shall stand disposed of

Local Police must not interfere in the peaceful married life of the petitioners while acting upon the complaint of the respondent: Allahabad High Court

In the interests of equity, good conscience and justice followed by a reading of Article 21 of the Indian Constitution, the privacy of a married couple must not be interfered with, and in case such privacy and peaceful existence is being threatened, the local police must ensure that such interference is checked. A single judge bench of Hon’ble J.J. Munir., while adjudicating the matter in – Smt. Yati @ Kahkasha And Another v. State Of U.P. And 3 Others; [WRIT – C No. – 12655 of 2021], dealt with the issue of an inter-religious marriage. The first petitioner is a young woman whose date of birth according to her High School Certificate is 22.02.2002. She is thus 19 years old and a major. She has married the second petitioner, also a major, according to her free will. It is stated that the first petitioner is Muslim by birth but has a great faith in the Hindu religion. She has adopted the Hindu religion and a Hindu name Yati in place of her native name, Kahkasha. She has also moved the requisite application to the District Magistrate, Meerut and got the necessary news items published in a newspaper regarding the change of her name and religion. A copy of this publication and the application made to the District Magistrate, Meerut is annexed to the writ petition. It is urged that the first petitioner and the second petitioner have married according to Hindu rites at the Arya Samaj Mandir, Maliyana, Meerut and have applied for registration of their marriage before the Registrar of Marriages, Meerut. However, their marriage has not been registered till date. It is next stated in the petition that the 4th respondent, who is the father of Yati, petitioner no. 1 is greatly annoyed with the marriage and has threatened the petitioners with death. The petitioners have moved the local police requesting them to save their life. It is further averred in the writ petition that the marriage between parties has met with disapproval of 4th respondent on account of the difference in their religion and the petitioners are required to be protected. Serious threat to the petitioners’ life has been asserted from the 4th respondent and other family members of the first petitioner, including members of the first petitioner’s native community.

Court No. 74 Case : WRIT C No. 126521 Petitioner : Smt. Yati @ Kahkasha And Another Respondent : State Of U.P. And 3 Others Counsel for Petitioner : Abhitab Kumar Tiwari Counsel for Respondent : C.S.C Hon ble J.J. Munir J The first petitioner is a young woman whose date of birth according to her High School Certificate is 22.02.2002. She is thus 19 years old and a major. She has married the second petitioner also a major according to her free will. It is stated that the first petitioner is Muslim by birth but has a great faith in the Hindu religion. She has adopted the Hindu religion and a Hindu name Yati in place of her native name Kahkasha. She has also moved the requisite application to the District Magistrate Meerut on 15.04.2021 and got the necessary news items published in a newspaper regarding the change of her name and religion. A copy of this publication and the application made to the District Magistrate Meerut is annexed as Annexure No. 3 to the writ petition. It is urged that the first petitioner and the second petitioner have married according to Hindu rites on 16.04.2021 at the Arya Samaj Mandir Maliyana Meerut and have applied for registration of their marriage before the Registrar of Marriages Meerut on 16.04.2021 However their marriage has not been registered till date. It is next stated in paragraph no. 7 of the petition that the 4th respondent who is the father of Yati @ Kahkasha petitioner no. 1 is greatly annoyed with the marriage and has threatened the petitioners with death. The petitioners have moved the local police requesting them to save their WWW.LIVELAW.IN life. It is further averred in paragraph no. 10 of the writ petition that the marriage between parties has met with disapproval of 4th respondent on account of the difference in their religion and the petitioners are required to be protected. In paragraph nos. 10 & 11 serious threat to the petitioners life has been asserted from the 4th respondent and other family members of the first petitioner including members of the first petitioner s native community. A prima facie case is made out Issue notice. Notice is made returnable on 23.06.2021. Looking to the facts and circumstances let notice be served upon respondent no. 4 through the Chief Judicial Magistrate Meerut and a report regarding service shall be placed on record by the date fixed. Learned Standing Counsel appearing for the respondent nos. 1 2 and 3 is granted four weeks time to file a counter List for orders on 23.06.2021 along with a report regarding service and status of pleadings. Order on Civil Misc. Stay Application No. 21 Until further orders of this Court the Senior Superintendent of Police Meerut is ordered to extend and provide necessary protection to the life and limb of the petitioners and ensure that no harm comes to them at the hands of WWW.LIVELAW.IN respondent no. 4 or any member of the first petitioner s family or her native community. It is further provided that the Senior Superintendent of Police Meerut shall also ensure that the local Police do not interfere in the peaceful married life of the petitioners acting at the instance of the 4th respondent though it shall be their duty to see that no physical harm comes to the petitioners The respondent no. 4 is ordered not to enter the petitioners house either himself or through his friends agents associates or approach the petitioners through any electronic means of communication or to cause the petitioners any bodily harm or injury in any manner Let this order be communicated to the Senior Superintendent of Police Meerut the Station House Officer P.S. Inchauli Meerut and respondent no. 4 Jahid Ahmad son of Abdul Bari resident of Ward No. 12 Lawar Khas P.S. Inchauli District Meerut through the Chief Judicial Magistrate Meerut by the Joint Registrar compliance) Today. Order Date : 26.5.2021 Digitally signed by Jahangir Jamshed Munir Date: 2021.05.26 18:44:21 IST Reason: Document Owner Location: High Court of Judicature at AllahabadWWW.LIVELAW.IN

Every High Court shall be a court of record for all the lower courts in a State: High Court Of New Delhi

Respondent demolishes the suit premises of the petitioner and the same issue was held in the judgement passed by a single bench judge comprising HON’BLE MS. JUSTICE  ASHA MENON, in the matter DAVINDRA MAHEY  V. COMMISSIONER, SOUTH DELHI MUNICIPAL CORPORATION, dealt with an issue mentioned above. The petition has been filed by the petitioner in CM (M) 409/2021 seeking review of the judgment dated 4th August 2021, whereby the petition was dismissed, Later filed a suit bearing No. CS SCJ 33/2021 seeking an injunction against the respondent/South Delhi Municipal Corporation (SDMC) from demolishing the suit premises, in terms of its Review Petition No.128/2021 in CM (M) 409/2021 order dated 15th December 2020. The learned Trial Court vide order dated 8th January 2021 had found no prima facie case in favour of the petitioner and dismissed the application seeking an ex-parte injunction against the respondent/SDMC from demolishing the construction carried out by the petitioner in the suit premises, and also the petitioner filed an appeal thereagainst which was also dismissed by the judgment dated 24th March 2021 of the learned Additional District Judge (ADJ). Thereby, the petition i.e., CM(M)409/2021 was filed, which, as noticed, was dismissed vide judgment dated 4th August 2021. Mr Anil Kumar Aggarwal learned counsel for the petitioner, the judgment dated 4 th August 2021 was liable to be reviewed. According to the learned counsel for the petitioner, this Court had misinterpreted the judgments of the Supreme Court in M.C. Mehta Vs. Union of India & Ors. (2005) 2 SCC 186 and Shiv Kumar Chadha Vs. Municipal Corporation of Delhi & Ors. It was submitted that the decision of this Court tantamounted to conferring of uncontrolled power to the Commissioner by denying to the people their democratic rights to go and get redressal of their grievances against the Commissioner. And also it was further submitted that this Court had failed to consider that the judgement in Shiv Kumar Chadha’s (supra) case had been delivered in a case arising before the commencement of Part IX-A of the Constitution of India. Later the learned counsel argued that the learned Trial Court had first to determine that it had jurisdiction and thereafter decide the relief of injunction. Mr Siddhant Nath, learned counsel for the respondent/SDMC appearing on advance notice submitted that new arguments had been pressed at the stage of review. A new argument has been raised, particularly that the Trial Court should have decided the jurisdiction first and then the injunction application. The learned counsel also pointed out that the prayer in the petition mentioned nothing as to a decision on jurisdiction first and it had only sought that the interim injunction is granted allowing the application under Order XXXIX Rules 1 & 2 of the Code of Civil Procedure, 1908 (CPC). It was further submitted that the Commissioner had acted within the four corners of the law, particularly under Section 343 of the DMC Act, It was also submitted that no court had held that the Commissioner had no powers to issue notice against unauthorized construction or pass orders for its demolition. In response, the learned counsel for the petitioner submitted that the fresh Writ Petition had been filed for a writ of quo warranto and had no bearing on this petition as the court exercised different powers under Review Petition No.128/2021 in CM (M) 409/2021 Page 6 of 11 Article 227 and under Article 226. However, in the present case, the petitioner has sought interim relief which was declined. The Appellate Court upheld the exercise of discretion and this Court found no error in either of the decisions in the exercise of powers under Article 227 of the Constitution of India. In the original petition, the prayer was for the grant of interim injunction. The court perused the facts and argument’s presented, it believed that- “None of the grounds urged before this Court satisfy the requirements of Order XLVIII CPC. Guided by the principles enunciated by the Supreme Court in Kamlesh Varma (supra), this is not a fit case, as no reason exists, for reviewing the judgment dated 4th August 2021. The petition is devoid of merit and is accordingly dismissed along with the pending applications”.

IN THE HIGH COURT OF DELHI AT NEW DELHI Pronounced on: 7th October 2021 DAVINDRA MAHEY CM409 2021 ..... Petitioner Through: Mr. Anil Kumar Aggarwal Prof. Madan Mohan and Mr. Rohan Mehra revisionist petitioner. Versus COMMISSIONER SOUTH DELHI MUNICIPAL CORPORATION Through: Mr. Siddhant Nath ASC ....Respondent HON BLE MS. JUSTICE ASHA MENON SDMC. JUDGMENT REVIEW PETITION NO.128 2021 This Review Petition has been filed by the petitioner in CM 409 2021 seeking review of the judgment dated 4th August 2021 whereby the petition was dismissed. It may be mentioned here that the petitioner being the owner in possession of Flat No.2206 in Pocket 2 Sector C Vasant Kunj New Delhi had filed a suit bearing No. CS SCJ 33 2021 seeking injunction against the respondent South Delhi Municipal Corporationfrom demolishing the suit premises in terms of its Review Petition No.128 2021 in CM409 2021 order dated 15th December 2020. The learned Trial Court vide order dated 8th January 2021 had found no prima facie case in favour of the petitioner and dismissed the application seeking ex parte injunction against the respondent SDMC from demolishing the construction carried out by the petitioner in the suit premises. The petitioner filed an appeal thereagainst which was also dismissed by the judgment dated 24th March 2021 of the learned Additional District Judge2 SCC 186 and Shiv Kumar Chadha Vs. Municipal Corporation of Delhi Ors. 3 SSC 161 by observing that the Supreme Court has not circumscribed the powers of the SDMC or the Commissioner in dealing with unauthorized construction. Reliance has been placed by the learned counsel on the decision of a Division Bench of this Court in Sh P.L. Mehra v. Sh D.R. Khanna 1970 SCC OnLine Del 203 to submit that this Court has misdirected itself in observing that it could not look into the question of ultra vires of the provisions in question because according to the learned counsel if a provision was unconstitutional nobody including the Courts could give effect to the same as all are bound by the Constitution. Every court was bound to construe a statute in the context Review Petition No.128 2021 in CM409 2021 of the Constitution and consider whether it conflicts with it. According to the learned counsel for the petitioner once the Constitution had been amended to incorporate Part IX A relating to Municipalities and Article 243W provided specifically for vesting of powers and authority as well as responsibilities of Municipalities particularly in relation to matters listed in the Twelfth Schedule which included construction of buildings the Municipal Corporation being the elected body alone and not the Commissioner could issue the impugned notices. According to the learned counsel even without looking to the vires of Section 330A of the Delhi Municipal Corporation Act 1957 this court had to consider the issuance of the impugned notice as unconstitutional and restrain the SDMC from acting on its order dated 15th December 2020. It was submitted that under the provisions in Section 330A and 349A of the DMC Act the Commissioner cannot claim to be authorized to act on behalf of the Corporation or the Municipality to regulate construction of buildings under Chapter XVI of the DMC Act and this provision was violative of the Constitution of India. It was submitted that the decision of this Court tantamounted to conferring of uncontrolled power to the Commissioner by denying to the people their democratic to go and get redressal of their grievances against Commissioner. It was further submitted that this Court had failed to consider that the judgement in Shiv Kumar Chadha’s case had been delivered in a case arising prior to the commencement of Part IX A of the Constitution of India and once the amendment has been made to Review Petition No.128 2021 in CM409 2021 the Constitution it was the elected body constituting the Corporation which alone had the power to regulate construction. Similarly this Court had not considered that the "Standard Plan of the DDA" not being approved and sanctioned under the DMC Act was a non statutory piece of paper and which could not be relied upon to determine excess coverage or construction and could not form the basis for taking any coercive action against the building of the petitioner. Finally it was submitted that because the petitioner was aware of the extent of construction that fact would not vest the Commissioner with the jurisdiction to determine excess coverage. The learned counsel also submitted that this Court had not considered the effect of the observations of the learned ADJ on the question that was still pending before the learned Trial Court in respect of the maintainability of the civil suit. The learned counsel argued that the learned Trial Court had first to determine that it had jurisdiction and thereafter decide the relief of injunction. The observations on the constitutionality of the provisions as recorded in the orders of the learned Appellate Court had gravely prejudiced the petitioner as the question of maintainability of the suit was still pending before the learned Trial Court. Learned counsel submitted that this Court ought to have set aside the orders of the courts below remanding the matter back to the learned Trial Court directing it to first decide the jurisdictional issue. The learned counsel for the petitioner has also relied on the judgment of this Court in STC of India Ltd. v. Govt. of Peoples Republic of Bangladesh 1996 SCC OnLine Del 596. Review Petition No.128 2021 in CM409 2021 7. Mr. Siddhant Nath learned counsel for the respondent SDMC appearing on advance notice submitted that new arguments had been pressed at the stage of review. A new argument has been raised particularly that the Trial Court should have decided the jurisdiction first and then the injunction application. The learned counsel also pointed out that the prayer in the petition mentioned nothing as to a decision on jurisdiction first and it had only sought that the interim injunction be granted allowing the application under Order XXXIX Rules 1 & 2 of the Code of Civil Procedure 1908 409 2021 Article 227 and under Article 226. It was further submitted that Chapter XVI of the DMC Act has a non obstante clause which would include Section 343 of the DMC Act and therefore the argument of the learned counsel for the respondent SDMC that action has been taken as per law particularly under Section 343 of the DMC Act was completely misplaced. 10. This Review Petition has been titled as one “under Article 215 of the Constitution of India read with Order XLVII of the CPC” and seeks review of the judgment dated 4th August 2021. 11. The purpose of the invocation of Article 215 of the Constitution of India which declares the High Courts to be Courts of record with all the powers including the power to punish for contempt of itself is unclear. However since the petitioner has sought the review of the order dated 4th August 2021 the Court must consider the parameters as provided under Order XLVII of the CPC as amended to deal with the present 12. Order XLVII Rule 1(i) of the CPC reads as under: “1. Application for review of judgment.—(1) Any person considering himself aggrieved— a) by a decree or order from which an appeal is allowed but from which no appeal has been preferred Review Petition No.128 2021 in CM409 2021 by a decree or order from which no appeal is allowed orby a decision on a reference from a Court of Small Causes and who from the discovery of new and important matter or evidence which after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made or on account of some mistake or error apparent on the face of the record or for any other sufficient reason desires to obtain a review of the decree passed or order made against him may apply for a review of judgment to the Court which passed the decree or made the order”. 13. The Supreme Court in various judgments has repeatedly held that the jurisdiction of review is not that of an appeal and such an application can be entertained only if there is an error apparent on the face of the record. There must be a material error on the face of the order which may result in miscarriage of justice. The error which is not self evident and has to be detected by a process of reasoning cannot be described as an error apparent on the face of the record justifying the Court exercising powers of review. That would be an appeal in the disguise of a Review Petition. Review cannot be sought in a hope that the Court would substitute its earlier view. 14. A review cannot be a re hearing of the original matter. Thus an applicant cannot seek the same relief which had been sought at the time of arguing of the main matter and which has been rejected. It would be apposite to reproduce the observations of the Supreme Court in Kamlesh Varma Vs. Mayawati & Ors. 8 SCC 320 where the principles governing review have been succinctly stated as below: Review Petition No.128 2021 in CM409 2021 “Summary of the principles 20. Thus in view of the above the following grounds of review are maintainable as stipulated by the statute: 20.1. When the review will be maintainable: i) Discovery of new and important matter or evidence which after the exercise of due diligence was not within knowledge of the petitioner or could not be produced by him ii) Mistake or error apparent on the face of the record iii) Any other sufficient reason. The words “any other sufficient reason” have been interpreted in Chhajju Ram Vs. Neki AIR 1922 PC 112 and approved by this Court in Moran Mar Basselios Catholicos Vs. Most Rev. Mar Poulose Athanasius AIR 1954 SC 526 to mean “a reason sufficient on grounds at least analogous to those specified in the rule”. The same principles have been reiterated in Union of India Vs. Sandur Manganese & Iron Ores Ltd.8 SCC 337. 20.2. When the review will not be maintainable: i) A repetition of old and overruled argument is not enough to reopen concluded adjudications. ii) Minor mistakes of inconsequential import. iii) Review proceedings cannot be equated with the original hearing of the case. iv) Review is not maintainable unless the material error manifest on the face of the order undermines its soundness or results in miscarriage of justice. Review Petition No.128 2021 in CM409 2021 A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error. vi) The mere possibility of two views on the subject cannot be a ground for review. vii) The error apparent on the face of the record should not be an error which has to be fished out and searched. viii) The appreciation of evidence on record is fully within the domain of the appellate court it cannot be permitted to be advanced in the review petition. ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived.” 15. The present Review Petition does not disclose any error apparent on the face of the record. The issues relating to the lack of jurisdiction with the Commissioner on account of the constitutional amendment was earlier urged and dealt with by this Court. The learned counsel for the petitioner has sought to repeat the same arguments over and over again which is not permissible. An attempt has also been made to overcome the observations of this Court in para No.15 of the judgment dated 4th August 2021 whereby the contentions regarding the Standard Plan of the DDA were rejected. In para Nos.17 and 19 the questions raised regarding the constitutional validity of the provisions namely Section 330A of the DMC Act in the light of the Article 243W were considered within the limited scope of a petition under Article 227 of the Constitution of India where once again the Court was not exercising appellate jurisdiction. Arguments advanced now seek to overcome the observations of this Court in the judgment dated 4th August 2021. But Review Petition No.128 2021 in CM409 2021 such submissions cannot constitute grounds as are provided under Order XLVII Rule I CPC. 16. Efforts have been made to further explain the Supreme Court decisions by submitting that in M.C. Mehta’scase the Court had not observed anything in favour of the Commissioner and therefore it was incorrectly held by this Court that the judgment did not circumscribe the powers of the Commissioner. It was further submitted that Section 476(1)(e) of the DMC Act itself empowers the Commissioner to represent the Municipal Corporation and as such directions being issued to him could not tantamount to vesting him with powers to deal with unauthorized construction. But these explanations do not amount to the existence of errors in the judgment dated 4th August 2021. In fact the learned counsel has sought to reargue his original petition which is impermissible. Though learned counsel was heard at length on this Review Petition no new fact has been urged. However a new prayer relief has been sought namely the remand of the matter to the learned Trial Court to decide the question of jurisdiction first. It is interesting to note the submissions of the learned counsel for the petitioner now advanced that this Court ought to quash the orders of the learned Trial Court and the learned Appellate Court and direct the re hearing of the matter in sequence i.e. first to determine the jurisdiction and thereafter the injunction application though reliance has been placed on the decision of this Court in State Trading Corporation of India Ltd. that even while the question of jurisdiction was under consideration interlocutory orders could be passed. Review Petition No.128 2021 in CM409 2021 18. However in the present case the petitioner has sought interim relief which was declined. The Appellate Court upheld the exercise of discretion and this Court found no error in either of the decisions in exercise of powers under Article 227 of the Constitution of India. In the original petition the prayer was for grant of interim injunction under Order XXXIX Rules 1 and 2 CPC. He has sought to modify the prayers originally made in the petition under Article 227 of the Constitution of India by now seeking a remand for re determination. Prejudice has also been urged as a new ground. Learned counsel has sought to justify the new prayer alleging grave injustice in the learned Trial Court rejecting the injunction without first deciding jurisdiction. 19. None of the grounds urged before this Court satisfy requirements of Order XLVIII CPC. Guided by the principles enunciated by the Supreme Court in Kamlesh Varmathis is not a fit case as no reason exists for reviewing the judgment dated 4th August 2021. 20. The petition is devoid of merit and is accordingly dismissed along with the pending applications. 21. The judgment be uploaded on the website forthwith. OCTOBER 07 2021 JUDGE Review Petition No.128 2021 in CM409 2021

Petitioners released on bail after being arrested under Sections 147, 148, 149, 341, 323, 307, 337, 338, 353, 332, 333, 285, 190 and 504IPC: High court of Patna

The petitioners were arrested under Sections147 of the Indian Penal Code, “Punishment for rioting”, section148, “Rioting, armed with a deadly weapon.”, section 149, “Every member of unlawful assembly guilty of offense commit­ted in the prosecution of a common object”, section 341, “Punishment for wrongful restraint”, section 323, “Punishment for voluntarily causing hurt”, section 307, “Attempt to murder” and sections 337, 338, 353, 332, 333, 285, 190 and 504 of the Indian Penal Code. This is in connection with Nardiganj PS Case No. 03 of 2020 dated 02.01.2020. This Judgment was given in the high court of Judicature at Patna on the 30th of July 2021, by the Honorable Mr. Justice Ahsanuddin Amanullah in the case of Bikram Kumar versus the state of Bihar criminal miscellaneous No. 37699 of 2020, Mr. Bhavesh represented as the advocate for the petitioner and Mr. Upadhyaya represented the state of Bihar as the additional public prosecutor, the proceedings of the court were held through video conference.   The petitioners along with 14 others named and 100-115 unknown persons were accused of being a part of a mob. A driver of a pick van was assaulted by the locals as they accused him of committing theft of paddy at Hatia and during the course of his treatment for the injuries he died and because this incident, the mob was protesting the death of the driver and attacked the police while they were protesting. The counsel for the petitioners held that the accusation has been falsely implicated, the petitioners were a part of a mob and they were peacefully protesting with the dead body of the driver. The counsel submitted that it was recorded that the mob had attacked the police with brickbats, bamboo sticks, and tyres which resulted in injuries. Here however petitioner no.1 (Student) and petitioner no.2 (Farmer) reached the spot only upon seeing the mob and had no connection with the incident and has been wrongly accused and he further conceded that they have no criminal antecedent. The additional public prosecutor held that even though the petitioners have been mentioned in the FIR and have been identified in the CCTV footage. There was no allegation of a specific overt act and all the allegations were general and omnibus in nature against the accused. After considering the facts and circumstances of the case the court held that the petitioners will be released on bail upon furnishing bail bonds of Rs. 25,000 each with two sureties to the satisfaction of the  Judicial Magistrate, 1st Class, Nawada in connection with the Nardiganj PS Case No. 03 of 2020, under conditions laid down in Section 438(2) Cr.P.C., 1973 “(i) that one of the bailors shall be a close relative of the petitioners, (ii) that the petitioners and the bailors shall execute bond with regard to the good behaviour of the petitioners, and (iii) that the petitioners shall also give an undertaking to the Court that they shall not indulge in any illegal/criminal activity.”

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 376920 Arising Out of PS. Case No. 3 Year 2020 Thana NARDIGANJ District Nawada Bikram Kumar age 23 years Gender Male Son of Pokhraj Yadav Resident of Village Dariyapur PS Nardiganj District Nawada Indradeo Mahto age 61 years Gender Male Son of Somar Yadav Resdent of Village Abdalpur Parariya PS Nardiganj District Nawada The State of Bihar ... Petitioner s For the Petitioner s For the State Mr. Bhavesh Advocate Mr. Jharkhandi Upadhyay APP CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ... Opposite Party s ORAL JUDGMENT Date : 30 07 2021 The matter has been heard via video conferencing. 2. Heard Mr. Bhavesh learned counsel for the petitioners and Mr. Jharkhandi Upadhyay learned Additional Public Prosecutor for the 3. The petitioners apprehend arrest in connection with Nardiganj PS Case No. 020 dated 02.01.2020 instituted under Sections 147 148 149 341 323 307 337 338 353 332 333 285 190 and 504 of the Indian Penal Code 4. The allegation against the petitioners along with 14 other named and 100 115 unknown persons is that they were part of a mob which attacked the police party while protesting the Patna High Court CR. MISC. No.376920 dt.30 07 2021 death of the driver of a pick up van belonging to Praduman Sah who had been assaulted by the locals on apprehension that he was committing theft of paddy at Hatia and during the course of treatment had died 5. Learned counsel for the petitioners submitted that they have been falsely implicated and even if they were part of the mob they were only there in view of there being protest made by persons with the dead body of the driver. Learned counsel submitted that though it has been stated that the Chowkidar has identified the petitioners it has not been stated with regard to any specific overt act and the same is general and omnibus that the mob had attacked the police personnel with brickbats bamboo sticks and tyre due to which two police personnel were injured. It was submitted that the petitioner no. 1 is a student and petitioner no. 2 is a farmer and had reached the spot upon seeing the mob and have been wrongly accused in the case and further that they have no other criminal antecedent 6. Learned APP submitted that the petitioners have been named in the FIR and also identified in the CCTV footage However it was not controverted that in the FIR no specific overt act has been alleged against them and the allegations are all general and omnibus in nature against all the accused Patna High Court CR. MISC. No.376920 dt.30 07 2021 7. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties in the event of arrest or surrender before the Court below within six weeks from today the petitioners be released on bail upon furnishing bail bonds of Rs. 25 000 each with two sureties of the like amount each to the satisfaction of the learned Judicial Magistrate 1st Class Nawada in Nardiganj PS Case No. 03 of 2020 subject to the conditions laid down in Section 438(2) of the Code of Criminal Procedure 1973 and further that one of the bailors shall be a close relative of the petitioners that the petitioners and the bailors shall execute bond with regard to good behaviour of the petitioners and (iii that the petitioners shall also give an undertaking to the Court that they shall not indulge in any illegal criminal activity act in violation of any law statutory provisions tamper with the evidence or influence the witnesses. Any violation of the terms and conditions of the bonds or the undertaking shall lead to cancellation of their bail bonds. The petitioners shall cooperate in the case and be present before the Court on each and every date Failure to cooperate or being absent on two consecutive dates without sufficient cause shall also lead to cancellation of their bail Patna High Court CR. MISC. No.376920 dt.30 07 2021 8. It shall also be open for the prosecution to bring any violation of the foregoing conditions of bail by the petitioners to the notice of the Court concerned which shall take immediate action on the same after giving opportunity of hearing to the 9. The petition stands disposed off in the aforementioned (Ahsanuddin Amanullah J

Special leave petition cannot affect the proceedings of instant election petition – Manipur high court

Special leave petition cannot affect the proceedings of instant election petition – Manipur high court Special leave petition filed before the honorable supreme court against the order of dismissal cannot affect the proceedings of instant election petition held in a judgment given by a single bench judge HON’BLE MR. JUSTICE M.V. MURALIDARAN in the case of Shri Lorho S.Pfoze versus Angam Karung Kom and ors. (MC(EP) No.21 of 2021) The application is filed by applicants to stop the further proceedings of the election petition for the time till the special leave petition is being heard in the Hon’ble Supreme supreme court. The learned counsel for the applicants submitted that  the applicant has filed SLP in Dairy No.10469of 2021 before the Hon’ble Supreme Court and the same shall be considered by the Hon’ble Supreme Court. therefore till that time, the Court may defer the further proceedings of the election petition till the disposal of the SLP. the learned counsel for the respondent submitted that to delay the proceedings and trial of the main election petition, the application was filed and the mere filing of SLP cannot affect the proceeding of the election petition as the SLP is not registered under the defect list and also submitted that there is no provision for deferring the proceeding of the main election petition and the trial of the election petition is a special trail and Chapter III of the Representation of the People Act, 1951 provides for trial of election petitions. The court considered the submissions made and considered that Mere filing of SLP before the Hon’ble Court cannot affect the proceeding of the main election petition and the SLP has not been registered yet and is under defect list. There is no interim order restraining this Court from proceeding with the main election petition and this Court is of the view that deferring the further proceedings of the election petition is not appropriate and every election petition shall be tried as expeditiously as possible and endeavor shall be made to conclude the trial within six months from the date. Further, the applicant has filed the instant application and the same cannot be entertained and is liable to be dismissed.

IN THE HIGH COURT OF MANIPUR AT IMPHAL MC(EP) No.221 Ref:Election Petion No.19 Shri Lorho S.Pfoze aged about 59 years S O Late A. Sibo Pfoze resident of Kayinu Village P.O. & P.S. Mao District Senapati Manipur 795150. Versus . Applicant 1. Houlim Shokhopao Mate @ Benjamin aged about 36 years S OH. Jamkhokhai Mate resident of Tengnoupal Village PO & PS Tengnoupal District Tengnoupal Manipur 795131. 2. Angam Karung Kom aged about 65 years S O Late Ashong Kom resident of K.R. Lane PO & PS Porompat District Imphal East Manipur 795005 3. Shri Hangkhngpau Taithul aged about 55 years S O Late T. Doupu resident of Singngat Hausa Veng PO & PS Singngat Churachandpur District Manipur 795139 4. Mr. Ashang Kasar @ Wungnaishang Kasar @ Wungnao Shang Kasar aged about 43 years S O Ngashathing Kasar resident of MC(EP) No.221. Page 1 Chadong Village PO & PS Litan Kamjong District Manipur 795145 5. Leikhan Kaipu aged about 54 years S O Late Leikhan Kokan resident of Heikakpokpi Village PO Pallel P.S. Machi Machi Sub Division Tengnoupal District Manipur 795135 6. Thangminlien Kipgen aged about 64 years S O Late Thangpu Kipgen resident of Haipi Village PO Kalapahar Kangpokpi District Manipur 795122 7. Shri K. James aged about 56 years S O Late K. Ngatangmi resident of Tangkhul Hungdung Khullen PO Lamlong P.S. Litan Kamjong District Manipur 795010 Presently residing at JIM Blessing Home Sangaiprou Mamang Leikai Airport Airport Road PO & PS Singjamei Imphal West District Manipur 795008. …. Respondents HON’BLE MR. JUSTICE M.V. MURALIDARAN For the Applicant For the Respondents Mr.B.R. Sharma Advt. Mr.Ajoy Pebam Adv. Date of hearing & reserved Date of Judgment & Order MC(EP) No.221. Page 2 JUDGMENT & ORDER This application has been filed by the applicant to defer the further proceedings of the Election Petition No.19 for a reasonable period or till such time the SLP under Dairy No.104621 is considered by the Hon’ble Supreme The applicant is the first respondent in the election petition. Heard Mr. B.R Sharma learned counsel for the applicant and Mr.Ajoy Pebam learned counsel for the first respondent election petitioner. Mr. B.R. Sharma learned Counsel for the applicant submitted that earlier the applicant has filed M.C.(EP) No.220 under order VII Rule 11 CPC seeking to dismiss the election petition as the election petition has failed to disclose the cause of action in terms of the relevant provisions of the representation of the People Act 1951 and by the order dated 25.3.2021 this Court dismissed the said application. Aggrieved by the same the applicant has filed SLP in Dairy No.10469 of 2021 before the Hon’ble Supreme Court and the same shall be considered by MC(EP) No.221. Page 3 the Hon’ble Supreme Court. Therefore in the interest of justice this Court may defer the further proceedings of the election petition till the disposal of the SLP. On the other hand Mr.Ajoy Pebam learned counsel for the first respondent election petitioner submitted that in order to delay the proceedings and trial of the main election petition the applicant has filed the present application and mere filing of SLP cannot affect the proceeding of the election petition. He would submit that the SLP is not yet registered as the same was under defect list. Learned counsel for the first respondent further submitted that there is no provision for deferring the proceeding of the main election petition and the trial of the election petition is a special trail and Chapter III of the Representation of the People Act 1951 provides for trial of election petitions. Further this is a very ill intentional tactic adopted by the applicant to delay the trial and waste the valuable time of this Court. This Court considered the submissions made by learned counsel appearing on either side and also perused the materials available on record. MC(EP) No.221. Page 4 The prayer of the applicant is to defer hearing of the main election petition till SLP Diary No.10469 of 2021 is considered by the Hon’ble Supreme It appears that earlier the applicant has filed M.C.No.220 before this Court under Order VII Rule 11 CPC praying to dismiss the election petition as it has failed to disclose the cause of action in terms of the relevant provisions of the Representation of People Act 1951. By a detailed order dated 25.3.2021 this Court dismissed the said application. Aggrieved by the same the application preferred SLP before the Hon’ble Supreme Court and the Hon’ble Supreme Court assigned Diary No.104621. According to the first respondent the said SLP was under defect list and only to delay the trial in the election petition the applicant has filed the present Mere filing of SLP before the Hon’ble Court cannot affect the proceeding of the main election petition and moreover as admitted by the applicant the SLP is not yet registered and in fact the said SLP was under defect list. There is no interim order restraining this Court from proceeding with the main election petition. MC(EP) No.221. Page 5 At this juncture it is to be noted that it has become a continuous practice of the applicant to file application after application in order to delay the matter. For example the very same applicant has filed M.C.No.321 to reject the replication filed by the first respondent herein contrary to the submission made by him in M.C.No.221. It is informed that the said SLP Diary No.104621 is likely to be listed on 14.12.2021. Since the SLP has not yet been numbered and there is no interim order restraining this Court from proceeding with the election petition further this Court is of the view that deferring the further proceedings of the election petition is not appropriate. The election petition is of the year 2019. Section 86(7) of the Representation of People Act provides that every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date on which the election is presented to the High Court for trial. In the Instant case almost more than two years have been passed and the election petition has not seen the result. MC(EP) No.221. Page 6 It is reiterated that mere filing of the SLP before the Hon’ble Supreme Court as against the order of dismissal of M.C.No.220 cannot affect the proceeding of the instant election petition and moreover there is no interim order of the Hon’ble Supreme Court restraining this Court from proceeding with the main election petition. Further this Court is of the view that only in order to protract the proceedings in the trial of the election petition the applicant has filed the instant application and the same cannot be entertained and is liable to be dismissed. Accordingly M.C.No.221 is dismissed. No costs. John kom MC(EP) No.221. Page 7

The state benefit of shelter for migrant cannot be invoked where he had the ability to purchase property and meet his residential needs: High Court of Delhi

The scheme formulated by the Ministry of Housing and Urban Affairs, Government of India has a stipulation that for the migrant to get the benefit under the Scheme should have no other residence in any part of the country, and in that regard, reference is made to the service book to ascertain if he/she has taken HBA from the government, which suggests, that acquiring a house after availing HBA would disentitle the migrant the benefit of shelter from the State. This was held in GIRJA BHAN. V. THE ESTATE OFFICER AND ANR. [W.P.(C) 7840/2020] in the High Court of Delhi by a single bench consisting of JUSTICE V. KAMESWAR RAO. The facts are that petitioner was a government servant who retired from the services of respondent Airports Authority of India. Petitioner is seeking to set aside an eviction order passed by respondent No.1 and the direction that the respondent should regularize her allotment of Government accommodation. The counsel for the petitioner has submitted that no fair hearing was provided to the petitioner. Her case should be considered at par Kashmiri migrants who have been authorized to continue in government accommodation even after retirement from service. He also contended that the petitioner is not an unauthorized occupant as defined under section 28-A (f) of the Airports Authority of India Act, 1994. The counsel of the respondent submitted that the petitioner had not raised the issue that she is a Kashmir migrant while seeking retention of the flat. It is also submitted that the petitioner had already purchased a flat after taking HBA from the Department and further has a permanent residence in Srinagar. The court made reference to the judgment of division bench Delhi high court in the case of  Rattan Lal Raina v. Indian Meteorological Department & Anr. UOI., wherein it was held that “  We also make it clear that the Central Government would be free to frame a rehabilitation scheme specifically for such retired employees like the respondents and in such a scheme, it can specify the terms and conditions on which such persons would be entitled to rehabilitate/alternate residence, which may include the term that these respondents or their family members do not have any residence in any part of the country. It would also be open to the Government to specify the nature of accommodation to which such retired Government servants would be entitled to or the place where they would be rehabilitated which may not necessarily be in Delhi but can be even in the NCR region”. The court also made reference to the judgment of Delhi high court in Ravinder Kumar Wali v. UOI and Ors, wherein it was held that “Consequently, the occasion for evicting the retired Government servants who are Kashmiri Pandits and are in occupation of Government accommodation does not arise till such time, as mandated by the DB of this Court, a rehabilitation scheme is not framed and the entitlement of the individuals including the present Appellant to alternative accommodation in terms thereof is not determined. Till such time, as ordered by the Division Bench in Vijay Mam, persons like the Appellant will not be disturbed from their accommodation which is now under their occupation.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: May 21 2021 W.P.(C) 7840 2020 CM Nos. 25741 2020 28544 2020 & 28600 2020 GIRJA BHAN Petitioner Through: Mr. Manoj V. George Ms. Shilpa Liza George and Ms. Akriti Seth Advs. THE ESTATE OFFICER AND ANR. Respondents Through: Mr. Digvijay Rai and Mr. Aman Yadav Advs. HON BLE MR. JUSTICE V. KAMESWAR RAO JUDGMENT V. KAMESWAR RAO J CM No. 28544 2020 For the reasons stated in the application the same is allowed and the additional affidavit is taken on record. Application is disposed of. W.P.7840 2020 following prayers: The present petition has been filed by the petitioner with the facts and circumstances it is most respectfully prayed by the the above mentioned light of W.P.(C) 7840 2020 Petitioner before this Hon’ble Court that it may be pleased to: a) Quash and Set aside the order passed by the Respondent No.1 dated 28.09.2020 b) Issue directions to the Respondents to regularize of Government accommodation at B 57 Behind INA Market Colony South West and New Delhi 110023 and charge her normal license fees c) Pass any other further such order or direction that this Hon’ble Court deems fit in the interests of 2. In effect the Writ Petition has been filed by the petitioner seeking to set aside an eviction order passed by the respondent No.1 and to direct the respondents to regularize her allotment of Government accommodation. It is the case of the petitioner and contended by her counsel Mr. Manoj V. George that she was a government servant who retired on June 30 2019 from services of respondent No.2 Airports Authority of India and is aggrieved by the impugned order dated September 28 2020 passed by the Eviction Officer Safdarjung Airport of respondent No.2 directing her to vacate the government accommodation allotted to her at B 57 behind INA Colony New Delhi 110023 within 15 days. It is submitted by him that the petitioner as a Kashmiri migrant is similarly placed like other government servants who are retired Kashmiri migrants who have been granted retention of government accommodation even after their retirement. W.P.(C) 7840 2020 4. It is submitted by Mr. George that the petitioner was appointed as the Telephone Operator in Civil Aviation Department by Director of Communication Aeronautical Communication Station Safdarjung Airport New Delhi and was posted in Srinagar. The petitioner who was a Government of India employee was on the formation of National Airports Authority w.e.f. October 2 1989 absorbed in that organization. It is a matter of record that the Airports Authority of India respondent herein was established in the year 1994 under the Airports Authority of India Act 1994 and the petitioner became an employee of the said organization wherein she continued to work till her superannuation. While she was posted in Srinagar she was unable to lead a normal peaceful life having received multiple letters with threats to her life from the militants. It was in this background that the petitioner requested respondent No.2 to transfer her out of the State of Jammu & Kashmir. Subsequently she was given posting at New Delhi and an accommodation was allotted at B 57 INA Colony South West New Delhi 110023. It is stated by Mr. George that the petitioner in 2001 purchased a property bearing flat no. H 3 2nd Floor Plot No. 526 Shalimar Garden Extension I Sahibabad UP by availing housing loan facility from respondent No.2. However in 2010 owing to financial crunch and deteriorating health conditions of her parents the petitioner had no other option left but to sell the property. He also submitted that the impugned order passed by the Estate Officer respondent No.1 is untenable in law. It is his argument that no fair hearing was provided to the petitioner so as W.P.(C) 7840 2020 to present her case on humanitarian and sympathetic grounds at par with the other Kashmiri migrants who have been authorized to continue in government accommodation even after retirement from service. He also contended that the petitioner is not an unauthorized occupant as defined under section 28 A of the Airports Authority of India Act 1994 as she has been paying the annual fees of the premises along with the electricity and water bills regularly and that the impugned order dated September 28 2020 is bad in law and thus the entire eviction proceedings predicated on the said notice are void ab initio. The counsel for the petitioner in support of his submissions has relied upon a Supreme Court judgment in the case of J.L. Koul and Ors v. State of Jammu and Kashmir & Ors. 2010(1)SCC 371 wherein the Court inter alia held that the Kashmiri migrants Kashmiri Pandits whose houses had been burnt destroyed by the terrorists in the valley were permitted to retain government accommodation allotted to them even after their retirement from the government job. He also relied upon a judgment of this Court in the Case of P.K. Koul v. the Estate Officer & Anr. No.15239 2004) wherein this Court applied and implemented the principles of Internally Displaced Personsas put forth by the “Guiding Principles on Internal Displacement” presented to the United Nations Commission for Human Rights. 8. Mr. George also placed reliance on Ravinder Kumar Wali v. UOI and Ors. 2019 SCC OnLine Del 7702: 2019 259 DLT 244 DB) wherein it is held that the occasion for evicting the retired W.P.(C) 7840 2020 Government servants who are Kashmiri Pandits and are in occupation of Government accommodation does not arise till such time a rehabilitation scheme is framed by the government. A Counter Affidavit to the petition has been duly filed by respondent Nos.1 & 2. It is the case of the respondents and contended by Mr. Digvijay Rai learned counsel appearing on behalf of the respondents that the petitioner after her appointment on January 18 1982 had filed a declaration dated January 27 1982 in the office of the Director of Communication wherein she declared her permanent home town as Village Karl Khud L Bridge Srinagar Jammu and Kashmir. It is stated by him that even on a bio data from the petitioner on January 03 1997 she had declared that her permanent home address as House No.199 A B Nundreish Colony Bemina Housing Colony Near Bypass Srinagar. This address was again declared as her permanent address when she submitted a Nomination Form dated June 21 2019 prior to her retirement. It is further stated by him that the petitioner filled up an application for Gratuity on June 01 2019 stating that her permanent Address is Girja Bhan C o Vijay Maza W o A.K. Bhan 57 C Om Nagar Uday Wala Near Peer Baba Jammu 180018. 10. Mr. Rai submitted that the petitioner had applied for a House Building Advance in 2001 and an amount of Rs.4 84 900 was sanctioned by the competent authority of the respondent No.2 vide order dated May 16 2001 and a cheque for the same amount was released. The petitioner then reconveyed the registration papers of the property bearing W.P.(C) 7840 2020 No.H 3 IInd Floor Plot No.5 & 6 Shalimar Garden Ext I Sahibabad Ghaziabad the respondents. Thereafter petitioner applied for departmental accommodation as the flat she purchased was 45 kilometers away from her place of posting. On December 14 2001 a flat bearing G 2 was allotted to her. However on her another request a bigger flat was allotted to her bearing the address B 57 INA Colony New Delhi and possession of the same was handed over to her on July 25 2005. After the petitioner had repaid all the installments of the HBA as per the order dated May 16 2005 a No Dues Certificate was issued by the respondents on April 26 2010 and the registration documents of the flat were also returned to her. 11. Mr. Rai stated it is the petitioner‟s own case that she had sold the property on April 03 2010. However since the conveyance deed of the flat was released to her only on April 26 2010 she could not have sold the property on April 03 2010. It is further contended by Mr. Rai that on February 18 2014 for the purpose of availing departmental accommodation the petitioner had even certified in an undertaking that her private purchased house is at H 3 2nd floor Plot No. 5 and 6 Shalimar Garden Extension 1 Sahibabad U.P. Furthermore the petitioner in her application for personal details dated February 10 2016 had again stated that she owns a MIG Flat at Shalimar Gardens Sahibabad Uttar Pradesh and the value of the property was Rs. 6.35 lacs. It is contended by Mr. Rai that in case the petitioner had sold the flat she was bound to intimate respondent No.2 as per Regulation 18 of the Airports Authority of India 7840 2020 Conduct Discipline and Appeal) Regulations 2003which she has not done. Relevant part of said regulation reads as under: Movable immovable and valuable property. 1) No employee shall except with the previous knowledge of the competent authority acquire or dispose of any immovable property by lease mortgage purchase sale gift or otherwise either in his own name or in the name of any member of his family. 2) No employee shall except with the previous sanction of the competent authority enter into any transaction concerning any immovable or movable property with a person or a company having official dealings with the employee or his subordinate. 3) Every employee shall report to the competent authority every transaction concerning movable property owned or held by him in his own name or in the name of a member of his family if the value of such property exceeds fifteen thousand rupees.” 13. It is further stated by Mr. Rai that the conduct of the petitioner clearly amounts to misconduct as defined under Regulation 5. Regulation 5 reads as under: 5. Misconduct. Without prejudice to the generality of the expression "misconduct" it includes the following acts of omission and commission which shall be treated as misconduct for the purposes of these regulations namely taking possession xxv) Occupying or in an unauthorised manner or refusal to vacate or deliver possession of Authority s quarters or any of its premises owned or hired when required to do so by W.P.(C) 7840 2020 14. That apart Mr. Rai submitted that the petitioner had not raised the issue that she is a Kashmir migrant while seeking retention of the flat. It is also submitted that the petitioner had already purchased a flat after taking HBA from the Department and further has a permanent residence in Srinagar as well as in Jammu and hence the judgments relied upon by the petitioner cannot be made applicable to the given facts and circumstances of the case. 15. Mr. Rai also stated that respondent No.2 Airports Authority of India is a body corporate constituted under the Airports Authority of India Act 1994 and performed its functions strictly as per Section 12 of the said Act. He further contended that respondent No.2 Airports Authority of India is not empowered to make any rehabilitation policy for Kashmiri migrants as it is beyond the scope of the said Act. 16. A rejoinder is duly filed by the petitioner to the Counter Affidavit filed by the respondents. In addition to reiterating her stand in the petition she stated her ancestral home was destroyed by militants in the year 1990 and that she belongs to the category of Internally Displaced Persons and that the State is duty bound to provide accommodation to her. 17. A reply to the rejoinder is filed by the respondents. The respondents therein have stated that the petitioner has taken leave on multiple occasions over the course of her employment to visit Srinagar and that the address she had provided for these visits was 199 A B Nundreish Colony Bemina Housing Colony Near Bypass Srinagar which according the respondents is her W.P.(C) 7840 2020 permanent address. It is contented by Mr. Rai that the petitioner‟s frequent visits to the aforementioned address is clearly indicative of the fact that the petitioner has an habitable house in Srinagar and has no threats from militants. 18. Mr. Rai also alleged that the document filed as Annexure P 3 to the rejoinder a form intimating the respondent No.2 Airports Authority of India about the sale of her flat is forged and a perusal of the register maintained by ACS Palam goes to show that there was no entry of the intimation in it. He also stated that in the year 2010 the petitioner was a Senior Superintendent whereas in the said form she declares herself to be the Assistant Manager. In the said Form at Serial No.11 the petitioner declares sanction had been obtained for disposal however there was is no sanction order. 19. An additional affidavit is duly filed by the petitioner wherein she denied the allegations put forth by the counsel for the respondents in his reply to the rejoinder filed by the petitioner. It is submitted by the learned counsel for the petitioner that the petitioner does not dispute that she has a permanent address in Srinagar however the same is not in a habitable state. 20. An additional affidavit is filed on behalf of the petitioner in furtherance of an order of this Court dated February 14 2021 wherein details regarding the petitioner‟s family their vocation and whether or not any of them own any property in the NCR have been furnished. In the affidavit it is stated by the petitioner that her family consists of herself her husband and two daughters. Her husband was allotted a shop meant for Kashmiri migrants but W.P.(C) 7840 2020 he stopped sitting in the shop in the year 2010 for medical reasons. One daughter is working as analyst in NatWest Groups Delhi and another daughter is working in KPMG Gurgaon. 21. Mr. George during his submissions has also stated that the Court may issue notice to the Ministry of Works and Housing Government of India so that they can place on record the Rehabilitation Scheme framed by it to enable the petitioner apply under the same for consideration and till such time the petitioner may be allowed to continue accommodation. 22. Having heard the learned counsel for the parties the only issue which arises for consideration in this petition is whether the petitioner is entitled to retain the accommodation being B 57 INA Colony New Delhi allotted to her while in service in view of the Judgments of this Court and the Supreme Court. It is a conceded case of the parties that the petitioner while posted in Srinagar in the year 1990 i.e. thirty one years back was transferred to Delhi in view of the conditions prevailing in Kashmir. After 11 years of her posting i.e. in the year 2001 the petitioner was allotted a quarter. It appears a higher type quarter i.e. the present one was allotted to the petitioner in the year 2005. Before her retirement on June 30 2019 the petitioner vide her letter dated May 14 2019 sought permission to retain the quarter for a period of six months from the date of retirement. In this letter she has not sought the retention of the quarter as a Kashmiri migrant. But in the subsequent letters submitted by her after her retirement she had sought the benefit of retention of quarter being W.P.(C) 7840 2020 a Kashmiri migrant in terms of the Judgments referred to above. The request of the petitioner was rejected on December 31 2019 without dilating on the ground on which she had sought the retention. On failure to vacate the quarter the respondents initiated proceedings under the Public Premises Act 1971 in which impugned order dated September 28 2020 has been passed directing the petitioner to vacate the quarter otherwise she is liable to be evicted. 24. Mr. George has primarily relied upon the Judgments which have been rendered by this Court and referred to above including the Judgments of the Division Bench of this court in the case of Union of India & Ors. v. Vijay Mam LPA 332 2011 P.K. Handoo v. Estate Officer and Anr. 2006 SCC Online Delhi 852 in support of his case that the petitioner being a Kashmiri migrant is entitled to retain the accommodation quarter till such time rehabilitation scheme is framed and benefit thereof is given to her. 25. Mr. Rai had contested the plea of Mr. George by stating that the petitioner having purchased a flat by taking House Building Advancefrom the respondent Authority in the year 2001 which flat she retained with her for 10 years and having sold the same in the year 2010 2011 is not entitled to the benefit of the Judgments rendered by this Court. According to him it is a case where she owned a flat in NCR with an intention to stay in Delhi. That apart he lays stress on the fact that the petitioner having visited Srinagar on many occasions after her posting in Delhi by taking LTC medical leave marriage of her sisters shows that the petitioner‟s family has a habitable house in Srinagar where W.P.(C) 7840 2020 they are staying. It is not a case where the house has been destroyed because of which she wants accommodation in Delhi. 26. To decide the short issue it is necessary to consider first the Judgments relied upon by Mr. George. I may state it may not be necessary to refer to all the Judgments relied upon by Mr. George. In Ravinder Kumar Wali supra) the Division of this court has referred to the earlier Judgments on the issue including Union of India and Ors. vs. Vijay Mam LPA 332 2011 decided on June 01 2012 which is an appeal filed by the Union of India against the order of the Ld. Single Judge. The Division Bench in Paras 30 & 31 of Union of India vs. Vijay Mamhas stated as under: “30. Going by all these considerations we do not find any fault with the directions given by the learned Single Judge in the impugned judgment. However we make it clear that these direction are given keeping in view the salient and peculiar facts of these cases and therefore cannot be treated as general directions in all types of cases pertaining to right to shelter. Directions are circumscribed by the following peculiar features of the instant case: i) All these respondents were the employees of Central Government who were posted in Srinagar J&K at the relevant time. ii) Because of the turbulent conditions and turmoil in the valley coupled with the fact that lives of these respondents and their family members were in gross danger the Government itself took the decision to transfer them from Srinagar to Delhi. While in Delhi they were allotted the Government accommodation. W.P.(C) 7840 2020 iii) These respondents have their houses in Kashmir which have been destroyed by the extremists and they have not been able to reconstruct restore them. iv) These respondents or their families have no other residence in any part of the country. v) Though they have retired they are not in a position to go back to their native place because conditions are still not favourable for their save return back to the valley. vi) Respondents want to enforce their right to shelter only till such time conditions are conducive for their safe return to their homes or till the time Government provides alternate accommodation. 31. We also make it clear that the Central Government would be free to frame a rehabilitation scheme specifically for such retired employees like the respondents and in such a scheme it can specify the terms and conditions on which such persons would be entitled to rehabilitate alternate residence which may respondents or their family members do not have any residence in any part of the country. It would also be open to the Government to specify the nature of accommodation to which such retired Government servants would be entitled to or the place where they would be rehabilitated which may not necessarily be in Delhi but can be even in the NCR region. After the scheme is framed the cases of the respondents can be scrutinized in terms of that scheme and those not found eligible for rehabilitation in terms thereof can be ousted from the present accommodation.” emphasis supplied) In Ravinder Kumar Walianother Division Bench in Paras 23 24 and 25 has stated as under: “23. The Court therefore rejects Respondents seeking to make a distinction between such of those Kashmiri Pandits who are employed by the Armed the stand of W.P.(C) 7840 2020 the Central Government Forces and Intelligence Agencies on the one hand and those Departments Agencies on the other. There also appears to be no justification for drawing a distinction between serving the matter of employees and retired employees in entitlement to alternative accommodation. It is not the case of the Respondents that the situation in Jammu & Kashmir today is such that there is no need to have a rehabilitation scheme as was directed not only in J.L. Kaul v. State of Jammu & Kashmirbut also by the Division Bench of this Court in Union of India v. Vijay Mamthat the State authorities were going to frame a rehabilitation scheme and proceed with its implementation till date that promise has remained only on paper as far as the Kashmiri Pandits are concerned. The decision dated 1st June 2012 of the DB in Vijay Mam also expected the Central Government to come forth with such a rehabilitation scheme. For nearly seven years now there has been no such rehabilitation 25. Kashmiri Pandits who were forcibly displaced from their homes during the turbulent years have been unable to return to Jammu & Kashmir in the absence of any rehabilitation scheme either issued by the State Government or the Central Government. Consequently the occasion for evicting the retired Government servants who are Kashmiri in occupation of Government Pandits and are accommodation does not arise till such time as mandated by the DB of this Court a rehabilitation scheme is not framed and the entitlement of the individuals including the present Appellant to alternative accommodation in terms thereof is not determined. Till such time as ordered by the Division Bench in Vijay Mam persons like the Appellant will not be disturbed from their accommodation which is now under their occupation.” emphasis supplied) W.P.(C) 7840 2020 In Para 30 of the Judgment in the case of Union of India vs. Vijay Mam the Division Bench upheld the direction of the Single Judge for framing a rehabilitation scheme by the Central Government. In Para 31 of the said judgment the Division Bench has also stated that on the framing of the rehabilitation scheme the case of the Kashmiri migrants shall be considered in terms of the scheme to be framed by the Central Government and those who are not found eligible for thereof can be ousted from accommodation. I also note that in Ravinder Kumar Wali(before the Division Bench) it was represented by the Counsel for Union of India that the rehabilitation scheme as directed in Vijay Mam vs. Union of India and Ors. has not been formulated prepared. It is for that reason the Court has commented that even after 7 years no rehabilitation scheme has been framed. But during the course of hearing in this petition an affidavit has been filed by the respondents wherein they have annexed a communication dated June 02 2020 received from the Ministry of Housing and Urban Affairs wherein the said Ministry has enclosed therewith an Office Memorandum dated March 28 2017 on the subject “Scheme for retention of Govt. accommodation to retired Central Government employees belonging to the State of Jammu and Kashmir holding general pool residential accommodation in Delhi in terms of the direction of the Hon’ble High Court of Delhi.” Para 4 thereof reads as under: W.P.(C) 7840 2020 “Review of the direction of the Hon ble High Court of Delhi a scheme has now been formulated by Ministry of urban development in consultation with Ministry of Home Affairs for providing alternate residence to retired central government employees belonging to the state of Jammu and Kashmir and or possessing general pool residential accommodation in Delhi and who meet the specified terms and conditions to qualify as a Kashmiri migrant the scheme is enclosed at annexure.” 31. The annexure to the said Office Memorandum details the terms and conditions for qualifying to hold Government accommodation as Kashmiri migrant under the scheme. The same are reproduced as under: “1. Terms and conditions for qualifying as Kashmiri migrant under the scheme: i) The applicant should be a retired central government employee or his her spouse and the applicant should be in a General Pool Residential Accommodation in Delhi allotted by the directorate of states Ministry of urban development on the date of making the application. ii) Applicant should be a permanent resident of state of Jammu and Kashmir and should be and erstwhile domicile of Kashmir division excluding Ladakh and Kargil districts. iii) Applicant was an employee of the central government and was posted in Srinagar J&K at the relevant time and he was transferred by the central government from Srinagar to Delhi on security grounds after 1 November 1989. iv) He she or his her family have no other residence in any part of the country. W.P.(C) 7840 2020 v) Though he she has retired he she is not in a position to go back to his her native place because conditions are still not favourable for his her safe return back to the valley. 2. SCHEME i) The retired Kashmiri migrants holding residential accommodation general pool shall be provided retention in the quarters in their position at present. ii) Such retired Kashmiri migrants who meet the specified terms and conditions to qualify as Kashmiri migrant would be accommodated in Delhi for first five years starting from the date of their retirement and thereafter be shifted to NCR. The Scheme would apply to those retired Central Govt. employees belonging to State of J & K who have been transferred by the Central Govt. from Srinagar to Delhi on security grounds after 1st Nov 1989. iii) The quarters may be held by the retired government employees till his her demise or demise of his her spouse which ever event takes place later subject to extension of the scheme and the condition that the retired government employee spouse doesn t procure a house in any part of India subsequent to their availing of the scheme. Extension of the scheme will be granted at par with the extension of the scheme of retention of GPRA at the last place of posting to civilian central government employees posted to the state of J&K. iv) The incumbent or his her spouse as the case maybe will have to submit a life certificate once a year to the Directorate of Estates in the performa prescribed for pensioners for the purpose of availing benefits of the rehabilitation scheme for Kashmiri migrants W.P.(C) 7840 2020 3. Documentary Proof to be submitted for examining the request on case to case basis. When a claim is received for consideration for providing alternate residence under the direction of the Hon ble High Court the claimant must provide adequate documentary proof in support of his claim that his or her case falls within the parameters of those retired Kashmiri migrants who were granted relief by the Hon ble court as set out in para 30 of the judgement. Following documents maybe collected from them a) Proof of posting in Srinagar Jammu & Kashmir in Central Govt. Office during. relevant period documentary proof issued by the employer). b) Proof of transfer from Srinagar to Delhi during the relevant period i.e. after 1st November 1989c) Proof that he she or his her family have no other residence in any part of the country.d) A life certificate from the incumbent spouse as the case may be once a year in the performa prescribed for the Pensioners for the purpose of availing benefits of Rehabilitation Scheme for Kashmiri migrants. 4. The claims with the documentary proofs received from such retired Kashmiri migrants may be processed in the allotment section on case to case basis and the entitlement to an alternative residence be decided in the light of specified terms and conditions and the documentary proof produced by them. Alternative residence should be provided only after verification from documentary proof that they fulfil the specified terms and conditions. Those who do not meet these conditions may be asked to vacate the quarters W.P.(C) 7840 2020 as per the provisions of the Public Premises Act 1971. Damage charges may also be made applicable on them for retaining the quarters beyond the permissible period. 32. The above shows the scheme in terms of the directions in the case of Vijay Mamhas been formulated by the Central Government through the Ministry of Housing and Urban Affairs. It appears that the same was not brought to the notice of the Court in Ravinder Kumar Wali7840 2020 applicable to the petitioner as the quarter was allotted to her while she was serving in Airports Authority of India. I concur with the said view. 34. The plea of Mr. George that this Court had in the case of Ravinder Kumar Wali (DB) rejected the plea that Wali being an employee of Defence Accounts Service shall not be entitled to the benefit of directions in Vijay Mam by holding that no distinction can be drawn between Kashmiri Pandits who are employed by the Armed Forces Intelligence Agencies on one hand and those working for the Central Government in other departments Agencies. Suffice to state Ravinder Kumar Wali though allotted accommodation from Defence Accounts Pool was still a Central Government employee and the plea was rightly rejected. Whereas in this case the petitioner being an employee of Airports Authority of India was not a Central Government employee. 35. Mr. George had also by relying on the judgments of the Supreme Court in the cases of Ramana Dayaram Shetty v. International Airport Authority of India 3 SCC 489 Pradeep Kumar Biswas v. Indian Institute of Chemical Technology 2002 SCC 111 Sudhdev Singh v. Bhagatram Sardar Singh Raghuvanshi 1975SCC 421 Mohan Mahto v. Central Coal Field Ltd. 2007SCC 549 Mysore Paper Mills Ltd. vs. Mysore Paper Mills Officers Association 2002SCC 167 and Som Prakash Rekhi vs. Union of India 1981 SCC 449 urged that respondent Authority being a “State” within the meaning of Article 12 of the Constitution of India is required to W.P.(C) 7840 2020 treat the petitioner at par with the other similarly placed Kashmiri migrants who are allowed to retain the accommodation till alternate arrangement is made. In this context it may be stated assuming that such an obligation is vested with an autonomous body like Airports Authority of India the principle laid down in the above Judgements as held by a Coordinate Bench of this Court in Rattan Lal Raina v. Indian Meteorological Department & Anr. UOI W.P.(C) 7831 2010 is to only ensure that Kashmiri migrants are not rendered homeless and their needs to live a life with dignity are addressed and an endeavour is made not to render the homeless without rehabilitation. The approach was more of a humanitarian nature drawing sustenance from the Constitutional guarantees under Article 21 and 19(c) of the Constitution of India. 37. The facts in this case as detailed above do not call for invocation of the above provisions of the Constitution that too after thirty one years of her transfer from Srinagar to Delhi for the reasonsthe purpose of providing shelter to displaced persons is only to assist them to overcome the initial trauma of being displaced and to pick the strings of their life (2) when the petitioner could make her own arrangements for stay for 11 years till 2001 the year she was allotted the accommodation for the first time by the respondent she can very well make similar arrangements even after retirement. She on the basis of financial support extended by her employer by way of House Building Allowancecould W.P.(C) 7840 2020 able to acquire a residential flat in NCR which flat she retained for ten long years till 2010 2011 when she sold the same for Rs.18 05 000 may be for some pressing reasons but that would not qualify her to again seek a shelter from her employer as a displaced person she retired from the respondent authority as Assistant Manager and her children are working in NatWest Group and in Consulting Firm KPMG respectively suggesting they are well placed and settled. 38. Even the scheme formulated by the Ministry of Housing and Urban Affairs Government of India has a stipulation that for the migrant to get the benefit under the Scheme should have no other residence in any part of the country and in that regard reference is made to the service book to ascertain if he she has taken HBA from the government which suggests that acquiring a house after availing HBA would disentitle the migrant the benefit of shelter from the State. 39. Mr. Rai by drawing my attention to various documents submitted by the petitioner from time to time as an employee had stated that the petitioner continued to visit Srinagar on LTC during medical leave marriage functions of her sisters between the years 1996 to 2007 to show that the house in Srinagar is habitable is appealing. The petitioner has not denied the stand of the respondent on her visiting Srinagar and staying at Bemina Srinagar. It is also noted from the affidavits filed by the sisters of the petitioner in the year 2015 that they are living in Srinagar. This also indicates that the family of the petitioner continues to live in Srinagar. W.P.(C) 7840 2020 40. The Coordinate Bench dealing with identical facts in Rattan Lal Rainahas stated as under: 13. A bare perusal of the facts of the present case clearly indicate that the provisions of Article 21 or 19(1)(e) of the Constitution of India cannot be invoked by the petitioner to retain the accommodation provided by the Government. In the first instance it is relevant to note that the petitioner was transferred from Srinagar to Chandigarh in March 1992 and thereafter posted at Delhi in August 1992. The petitioner served in Delhi for almost 18 years thereafter. This is a sufficiently long period for the petitioner to overcome the need for any immediate aid at the cost of the State. The purpose of providing shelter to displaced persons is only to assist them to overcome the initial trauma of being displaced and to pick up the strings of their life. The sustained and stable employment of 18 years outside the State of Jammu and Kashmir provided the petitioner adequate rehabilitation and thus disentitles him for any further humanitarian aid on account of displacement. 14. More importantly the petitioner is not a destitute person as is sought to be argued on his behalf. The petitioner had sufficient means to purchase a plot of land in Jammu in the year 1997 and in Faridabad in the year 2004. Thus within a period of 7 years from being displaced the Kashmir Valley the for his petitioner had acquired rehabilitation and was in a position to build his own shelter. Subsequently the petitioner did better he sold the properties acquired in 1997 and 2004 and along with his wife acquired a residential flat in Vashi Navi Mumbai. This clearly indicates that the petitioner had the means for meeting his rudimentary needs which were sought to be ensured by this court in P.K. Koul for the displaced persons by making good the Constitutional guarantees. the means W.P.(C) 7840 2020 15. It has been stressed by the learned counsel for the petitioner that currently the petitioner does not own any residential property. However this cannot be a reason to permit the petitioner to indefinitely occupy the government accommodation that was provided to him as a part of his remuneration package. The petitioner had acquired a residential flat at Vashi Navi Mumbai. He had sold the same for a consideration of `32 lacs. The petitioner had also acquired booked a residential apartment in Faridabad which is also stated to have been sold subsequently. In my view the principle of ensuring that shelter is provided to displaced persons would have little application in the case of the petitioner who much after being displaced demonstrably had the ability to purchase property to provide for his residential needs. The fact that he has subsequently sold the same for other purposes or other exigencies would not entitle him for the relief of shelter on account of him being displaced in 1990 41. Agreeing with the aforesaid view it must be held the direction in the Judgment of this Court in Vijay Mam vs. Union of India & Ors. having been implemented by framing a Scheme under which the petitioner is not eligible the plea that similar directions need to be issued to Airports Authority of India is unmerited and is rejected. 42. The petitioner having retired on June 30 2019 and was allowed to retain the accommodation for six months i.e. till December 31 2019 and thereafter being an unauthorised occupant was rightly directed to vacate the same. I do not see any illegality in the impugned order. The Petition is dismissed. But at the same time being conscious of the situation prevailing because of COVID 19 and the fact that the petitioner‟s daughter is getting W.P.(C) 7840 2020 married in the month of October 2021 I deem it appropriate to extend the time for petitioner to vacate the quarter till December 31 2021 during which period the petitioner shall pay the licence fee as per the rules. No costs. CM Nos. 25741 2020 & 28600 2020 In view of the above these applications are dismissed. MAY 21 2021 jg V. KAMESWAR RAO J W.P.(C) 7840 2020

The Court has time and again reminded that appeal being a statutory right, the trial Court’s verdict does not attain finality during the pendency of the appeal:High court of Sikkim

While disposing of appeals from the sentences of the Sessions Court under this Section, the High Court should specify the reasons for rejection of appeal and should not reject it summarily, and the same issue was held in the judgement passed by a single bench judge Hon’ble Meenakshi Madan Rai, J. In the matter Subash Thapa versus  State of Sikkim [Crl. A. No.04 of 2018] dealt with an issue mentioned above. The instant matter pivots around the death of the victim, one Purna Kumar Gurung, aged about 34 years, working as a Lab Attendant under the Human Resource Development Department, in a school at Khecheopalri, West Sikkim. He is alleged to have been murdered by the appellant on the intervening night of 16-04-2016 and 17-04-2016 on a road half a kilometre away from his residence situated at 13th Mile, Tingling, West Sikkim. That, the evidence of P.W.36 and P.W.37 alleged to have heard the extra-judicial confession of the appellant are unreliable, as P.W.37 made a concerted bid to improve his statements during the trial, leading to inconsistencies in the Prosecution case besides which he had a political rivalry with the appellant during the Panchayat elections. The court perused the facts and arguments presented in the case In the end result, we find that the Prosecution has not only failed to establish the last seen together theory, but also the motive of the appellant for committing the crime. On pain of repetition, it is reiterated that the seizure of the articles allegedly based on Exhibit 5 is fraught with inconsistencies. In the absence of cogent, consistent and plausible evidence furnished by the Prosecution, there is every possibility of a false implication of the appellant.   While disposing of appeals from the sentences of the Sessions Court under this Section, the High Court should specify the reasons for rejection of appeal and should not reject it summarily, and the same issue was held in the judgement passed by a single bench judge Hon’ble Meenakshi Madan Rai, J. In the matter Subash Thapa versus  State of Sikkim [Crl. A. No.04 of 2018] dealt with an issue mentioned above. The instant matter pivots around the death of the victim, one Purna Kumar Gurung, aged about 34 years, working as a Lab Attendant under the Human Resource Development Department, in a school at Khecheopalri, West Sikkim. He is alleged to have been murdered by the appellant on the intervening night of 16-04-2016 and 17-04-2016 on a road half a kilometre away from his residence situated at 13th Mile, Tingling, West Sikkim. That, the evidence of P.W.36 and P.W.37 alleged to have heard the extra-judicial confession of the appellant are unreliable, as P.W.37 made a concerted bid to improve his statements during the trial, leading to inconsistencies in the Prosecution case besides which he had a political rivalry with the appellant during the Panchayat elections. The court perused the facts and arguments presented in the case In the end result, we find that the Prosecution has not only failed to establish the last seen together theory, but also the motive of the appellant for committing the crime. On pain of repetition, it is reiterated that the seizure of the articles allegedly based on Exhibit 5 is fraught with inconsistencies. In the absence of cogent, consistent and plausible evidence furnished by the Prosecution, there is every possibility of a false implication of the appellant. Click here to read the judgment

THE HIGH COURT OF SIKKIM : GANGTOK Criminal Appeal Jurisdiction) DATED : 14th December 2021 DIVISION BENCH : THE HON’BLE MR. JUSTICE BISWANATH SOMADDER CHIEF JUSTICE THE HON’BLE MRS. JUSTICE MEENAKSHI MADAN RAI JUDGE Crl.A. No.018 Appellant Subash Thapa versus Respondent State of Sikkim Appeal under Section 374(2) of the Code of Criminal Procedure 1973 Appearance Mr. Tashi Rapten Barfungpa Advocate for the appellant. Dr. Doma T. Bhutia Public Prosecutor with Mr. S. K. Chettri Additional Public Prosecutor for the respondent. JUDGMENT Meenakshi Madan Rai J. The instant matter pivots around the death of the victim one Purna Kumar Gurung aged about 34 years working as a Lab Attendant under the Human Resource Development Department in a school at Khecheopalri West Sikkim. He is alleged to have been murdered by the appellant on the intervening night of 16 04 2016 and 17 04 2016 on a road half a kilometer away from his residence situated at 13th Mile Thingling West Sikkim. The appellant was charged under Sections 302 392 and 427 of the Indian Penal Code 1860 only from the appellant‟s residence was said to be adequate ground not only to prove robbery but also murder. However only P.W.2 deposed that the deceased was in possession of a bundle of currency notes uncorroborated by other witnesses who were assembled at the Hotel where they were playing cards. P.W.2 however was not made a witness to the recovery of the money or for identification of the currency notes. The ownership of the currency notes is not proved as no forensic tests were conducted to verify this aspect. The money recovered was in the denomination of Rs.1 000 Crl.A. No.018 3 Subash Thapa vs. State of Sikkim Rupees one thousand) only whereas P.W.3 the victim‟s mother deposed that she had handed over currency notes to the victim in the denomination of Rs.500 only and Rs.1 000 only. None of the currency notes alleged to have been seized from the appellant had blood stains. That the evidence of P.W.14 and P.W.19 reveals that the Police seized M.O.V wallet of the deceased from the accident site containing Rs.11 000 only and a gold ring. If robbery was the motive it is unfathomable as to why the appellant would not have taken the money in the victim‟s wallet and his jewellery. Motive is unproved as the appellant was financially stable as established by the evidence of P.W.19 who deposed that the appellant a Contractor had encashed two bills amounting to Rs.5 00 000 only and Rs.4 42 000 only some time before his arrest negating any requirement for commission of robbery. Hence this stance of the Prosecution cannot be countenanced. That in Tarseem Kumar vs. The Delhi Administration1 the Hon‟ble Supreme Court has held that in a case of circumstantial evidence motive for committing crime assumes importance which has not been established in the instant case. Strength was also drawn on this aspect from the ratio of State of Rajasthan vs. Hakam Singh2. That the Disclosure Statement of the appellant Exhibit 5 reflects that the statement was recorded on 18 04 2016 recovery of incriminating articles viz. M.O.VII Rs.71 000 in Rs.1 000 denomination) M.O.VIII blood stained 1 AIR 1994 SC 2585 2 15 SCC 171 Crl.A. No.018 4 Subash Thapa vs. State of Sikkim shoes M.O.IX Jeans of the appellant and M.O.X gray coloured jumper were made in the presence of P.W.15 and P.W.16 on 17 04 2016 prior in time to the recording of Exhibit 5 thereby demolishing the Prosecution case of recovery of these articles on disclosure. P.W.14 has corroborated the evidence of P.Ws 15 and 16 with regard to the date of seizure of the articles being 17 04 2016 and not 18 04 2016 as asserted by the Prosecution. That P.W.15 and P.W.16 are also stock witnesses for the Investigating OfficerP.W.43 both having been witnesses in S.T. Case No.10 2015 and J.J. Case No.01 2016 in which P.W.43 was the I.O. Even if the Prosecution case with regard to the Disclosures in Exhibit 5 is to be believed the appellant allegedly stated therein that he had washed the insoles of the shoes worn by him at the time of the offence. Contrarily P.W.15 has deposed that a pair of blood stained shoes with insoles were seized by the Police fortifying the allegation that P.W.15 is a stock witness and thereby unreliable. That the Court should be wary while considering the evidence of such interested witness as held in State of U.P. vs. Arun Kumar Gupta3 thus Exhibit 5 deserves to be discarded in view of the anomalies. The evidence of P.W.5 a Police personnel subordinate to the I.O. reveals that on 17 04 2016 after forwarding the dead body to Gangtok for post mortem he along with P.W.43 the I.O. went to the house of the appellant obtained the keys from the appellant‟s father and brought a few clothes belonging to the appellant to the Police Station. His statement thus further buttresses the evidence of P.W.14 and the fact that the clothes of the appellant were seized in his absence prior in 3 2 SCC 202 Crl.A. No.018 5 Subash Thapa vs. State of Sikkim time to the Disclosure Statement. P.W.27 a witness declared hostile by the Prosecution did not see the appellant and the victim going together on the motorcycle after their game of cards. Another witness P.W.38 stated that he had not even seen the appellant at the game of cards according to him P.W.2 P.W.27 and P.W.28 left the game together neither had he seen any motorcycle parked outside the Hotel where they had all gathered to play cards. The evidence of these witnesses are contrary to the evidence of P.W.2 with regard to the departure of the victim and the appellant. That the evidence of P.W.36 and P.W.37 alleged to have heard the extra judicial confession of the appellant are unreliable as P.W.37 made a concerted bid to improve his statements during the trial leading to inconsistencies in the Prosecution case besides which he had political rivalry with the appellant during the Panchayat elections. That the delay in forwarding the blood sample of the deceased for forensic testing sans reasons raises doubts about the Prosecution case as the incident took place on the intervening night of 16 04 2016 and 17 04 2016 while the sample was forwarded on 08 05 2016. Succour was drawn on this count from the observation in Arun Kumar Gupta supra). That as no finger prints were lifted from the place of occurrence or from any of the material objects seized by the Police the complicity of the appellant has not been proved. Although attempts were made to tarnish the character of the appellant by the I.O. P.W.43 by alleging he had been terminated from service due to unruly behavior this is not substantiated by proof. The evidence of P.W.42 categorically indicates that the appellant was at Crl.A. No.018 6 Subash Thapa vs. State of Sikkim another location at 10 10.30 pm. of 16 04 2016 and not with the victim and that the victim and the appellant did not bear animosity towards each other. The „Shungdi’with which the appellant is alleged to have dragged the dead body although allegedly seized was not exhibited by the Prosecution. iv) It was next urged that during post mortem P.W.39 Dr. O.T. Lepcha the Medico Legal Consultant found that the abdomen of the victim smelled of fermented alcohol hence intoxication being the cause of the accident cannot be ruled out. The alleged weapon of offence M.O.I a stone was not shown to P.W.39 to determine the cause of injuries found on the victim. On this aspect reliance was placed on Ishwar Singh vs. State of U.P.4. That the Prosecution had attempted to establish that the appellant also rode pillion with the victim on the bike to a further distance instead of alighting on reaching his home and then committed the offence devoid of evidence. The blood group of both the victim and the appellant was admittedly „AB‟ but no effort was made during investigation to conduct further scientific tests to establish beyond doubt that the blood stains on M.O.I was that of the deceased. That suspicion however grave cannot take the place of proof as held by the Hon‟ble Supreme Court in Rajiv Singh vs. State of Bihar and Another5. That it is established law that if two views are possible on the evidence adduced in the case one pointing to the guilt and the other to the innocence of the accused the view favourable to the accused should be accepted. On this count reliance was placed on 4 4 SCC 355 5 16 SCC 369 Crl.A. No.018 7 Subash Thapa vs. State of Sikkim Suchand Pal vs. Phani Pal and Another6 and State of Rajasthan vs. Naresh alias Ram Naresh7. That the learned trial Court has rejected the evidence of the Defence Witnesses while failing to appreciate that it is the bounden duty of the Prosecution to prove its case beyond all reasonable doubt and not for the defence to establish innocence. Reliance was placed on State of Haryana vs. Ram Singh8. That in view of all arguments put forth and the mandate of law supra the Judgment of the learned trial Court be set aside and the appellant acquitted of the offences charged with. Countering the arguments of learned counsel for the appellant learned Public Prosecutor contended that the four circumstances relied on by the Prosecution to prove its case was the Last Seen Theory Motive recovery of money and non explanation by the appellant of how he came to be in possession of Rs.71 000 only. That last seen theory has been established by P.W.2 duly corroborated by P.W.37 and P.W.1. P.W.1 saw the deceased and the appellant entering the Hotel. P.W.2 and P.W.37 saw them going out together. That the evidence of P.W.2 a Police personnel should not be discounted merely on account of his profession. On this count reliance was placed on Kashmiri Lal vs. State of Haryana9. P.W.33 had also seen the appellant and the deceased in a vehicle returning from the wedding at 14th Mile. That the death being the result of an accident is ruled out by the injuries apparent on the back of the head of the 6 11 SCC 527 7 9 SCC 368 8 2 SCC 426 9 6 SCC 595 Crl.A. No.018 8 Subash Thapa vs. State of Sikkim deceased as an accident would have caused only frontal injuries added to which P.W.26 the Motor Vehicle Inspector deposed that there was no mechanical defect in the motorcycle. The dead body was found 49 feet below the road thus if the death was due to accident there was no reason either for blood to be found on the road or on the stone M.O.I the weapon of offence. The recovery of cash from the deceased has been established by the evidence of P.W.15 P.W.16 and P.W.43 and P.W.3 has proved that she had handed over money to her son the victim on the relevant day. The money was for paying P.W.4 who in turn had deposed that the deceased had told him that he would pay Rs.80 000 only as an advance for the landed property purchased from him but he failed to turn up at his house. That the appellant made a Disclosure Statement Exhibit 5 without coercion as proved by P.W.15 and P.W.16 and P.W.43 the I.O. Motive has been established by the fact that the deceased had refused to give the appellant a sum of Rs.5 000 Rupees five thousand) only on his request when gambling and the humiliation of the refusal and awareness of the victim‟s possession of a large sum of money led to the offence. Drawing the attention of this Court to the decision in Paramjeet Singh alias Pamma vs. State of Uttarakhand10 it was next urged that motive is for the purpose of supplying a link in the chain of circumstantial evidence but its absence cannot be a ground to reject the Prosecution case. That PWs 15 and 16 cannot be referred to as stock witnesses merely because they are witnesses in two other matters where P.W.43 was the I.O. This is a result of people not wanting to 10 10 SCC 439 Crl.A. No.018 9 Subash Thapa vs. State of Sikkim be embroiled in any criminal disputes but in no way renders their evidence weak reliance was placed on Sri Bhagwan vs. State of Uttar Pradesh11. It was contended that minor discrepancies and infirmities in the Prosecution evidence is not a ground to reject the Prosecution case in its entirety as the evidence has to be considered as a whole in order to assess the truth. Reliance was placed on the ratio of State of Uttar Pradesh vs. Krishna Master and Others12. Inviting the attention of this Court to the decision in State of M.P. through CBI and Others vs. Paltan Mallah and Others13 it was canvassed that evidence obtained under illegal search is not completely excluded unless it has caused serious prejudice to the accused and the discretion lies with the Court to accept or reject such evidence. That since the doctrine of last seen together has been proved the burden of proof shifts to the accused however the appellant has failed to shed light on his role or his possession of Rs.71 000 only reliance was placed on Pattu Rajan vs. State of Tamil Nadu14 to drive home this point. That merely because P.W.27 and P.W.28 turned hostile their evidence cannot be rejected in totality evidence which is otherwise acceptable can be relied upon. Strength was drawn from the ratio in Khujji @ Surendra Tiwari vs. State of Madhya Pradesh15. Having heard the rival submissions of learned counsel for the parties in extenso perused the entire records of the learned trial Court including the impugned Judgment and Order on Sentence and the citations made at the Bar this Court is to determine whether the Prosecution on the edifice of circumstantial 11 12 SCC 137 12 12 SCC 324 13 3 SCC 169 14 4 SCC 771 15 3 SCC 627 Crl.A. No.018 10 Subash Thapa vs. State of Sikkim evidence has proved its case beyond a reasonable doubt thereby rendering the impugned Judgment of the learned trial Court unassailable. In order to gauge this circumstance it is necessary to briefly delve into the facts of the case. The Prosecution case is that on 17 04 2016 at 0830 hours Exhibit 13 an FIR was lodged by P.W.36 at the Gyalshing Police Station at 7 a.m. informing that in the morning he received a call from P.W.7 stating that the deceased had met with an accident and his motorcycle was lying below the road but the victim was not seen there. The Complainant reached the spot and found the victim lying face downwards. On close inspection of the victim he suspected that he had been murdered and hence lodged the FIR seeking necessary action. On the basis of the Exhibit 13 Gyalshing P.S. Case No.22 2016 dated 17 04 2016 under Section 302 of the IPC was registered against unknown persons and taken up for investigation by the I.O. P.W.43 the Station House Officer of the Gyalshing P.S. On completion of the investigation prima facie case under Sections 341 302 392 427 of the IPC was made out against the appellant and charge sheet submitted accordingly. On the appellant‟s plea of “not guilty” to the charges framed against him by the learned trial Court under Sections 302 392 and 427 of the IPC the Prosecution embarked on examining 43 witnesses including the I.O. of the case. On closure of Prosecution evidence the appellant was examined under Section 313 Criminal Procedure Code 1973 and his responses recorded. He sought to and was permitted to examine 6 persons as his witnesses being D.W.1 to D.W.6. The learned trial Crl.A. No.018 11 Subash Thapa vs. State of Sikkim Court on consideration of oral documentary and material evidence pronounced the impugned Judgment of conviction and Order on Sentence. While reaching its conclusion of guilt of the appellant under the various offences he was charged with the learned trial Court observed that proof of possession of cash with the victim was given by P.W.3 and chose to disbelieve that the victim had adequate means of income. That the appellant made no effort to explain his possession of the recovered cash although he had the opportunity to do so when examined under Section 313 Cr.P.C. While discussing the forensic evidence put forth by the Prosecution and the evidence of P.W.25 the learned trial Court concluded that the appellant did not explain how his shoes insoles came to have blood stains. He had taken the plea that the Police had rubbed “his blood on his shoes” and clothes but never explained how or when the Police obtained his blood. While discussing the last seen theory the learned trial Court found the evidence of P.W.2 credible and trustworthy. The Court was loathe to accept the statement of P.W.27 that he along with P.W.28 and P.W.2 left the Hotel together and reasoned that it was not corroborated by P.W.28 P.W.38 or P.W.2. That P.W.2 had also clearly testified that the appellant had lost while gambling and requested the deceased for a loan which the deceased refused lending motive to the crime. The evidence of the Motor Vehicle Inspector P.W.26 was considered and the learned trial Court concluded that it was highly improbable that the victim would have died as a result of an accident and nothing in the evidence of P.W.2 P.W.27 P.W.28 and Crl.A. No.018 12 Subash Thapa vs. State of Sikkim P.W.38 suggested remotely that the appellant was so intoxicated to have lost control of his motorbike. The medical evidence of P.W.39 who opined that the cause of death was intracranial haemorrhage with fracture of skull as a result of blunt force was believed to have been a result of the assault by the appellant. The evidence of P.W.5 to the extent that the appellant tried to escape from the Police vehicle was found to be another incriminating circumstance against the appellant. The extra judicial confession of the appellant as deposed by P.W.36 and P.W.37 was found plausible while the Disclosure Statement Exhibit 5 was believed to have been made by the appellant before P.W.15 and P.W.16 at the Gyalshing P.S. of his own freewill. The seizures made pursuant to Exhibit 5 were given due consideration and accepted as the truth. The evidence of the Defence Witness were disregarded in totality and after recording its observations the assailed Judgment was pronounced. Circumstantial evidence is legal evidence but when the Prosecution relies upon circumstantial evidence as is the case here the circumstances must be so convincing that no other conclusion can be arrived at than the guilt of the accused which must adequate to convict the accused. In Hanumant Govind Nargundkar and Another vs. State of Madhya Pradesh16 while considering a case based on circumstantial evidence the Hon‟ble Supreme Court held as follows “[10] . .…. It is well to remember that in cases where the circumstances from which the conclusion of guilt is to circumstantial nature is of a 16 AIR 1952 SC 343 Crl.A. No.018 13 Subash Thapa vs. State of Sikkim be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again the circumstances should be of a conclusive nature and pendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. …..” The Supreme Court in Sharad Birdhichand Sarda vs. State of Maharashtra17 expounded that the five golden principles which constitute the panchsheel of the proof of a case based on circumstantial evidence as The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely “may be” fully established The facts so established should be consistent with the hypothesis of the guilt of the accused that is to say they should not be explainable on any other hypothesis except that the accused is guilty The circumstances should be of a conclusive nature and tendency They should exclude every possible hypothesis except the one to be proved and There should be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. On the anvil of these well settled parameters the evidence in the instant matter is to be examined to assess whether they fulfil the above principles. The first link in the chain of circumstantial evidence would undoubtedly have to be the last seen together theory. In Bodhraj alias Bodha and Others vs. State of Jammu and Kashmir18 the Supreme Court held that the last seen theory comes into play 17 4 SCC 116 18 8 SCC 45 Crl.A. No.018 14 Subash Thapa vs. State of Sikkim where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. Only on this circumstance being proved can the Prosecution link the other circumstances to it and thereby the offence to the appellant. On this aspect the evidence of P.W.2 a Police personnel posted at the Yuksom Police Out Post at the relevant time is to be examined. As per P.W.2 the deceased had called him to the Hotel after his duty hours. He along with the deceased P.W.28 P.W.27 and P.W.38 and the appellant played cards and he noticed that the deceased was in possession of some amount of money in the denomination of Rs.1 000 In light of the above evidence of the witnesses furnished by the Prosecution it is questionable as to why more weight was attached to the evidence of P.W.2 by the learned trial Court when other witnesses have not corroborated his evidence and when specific timings of the event are missing from his evidence as against the evidence of P.W.27 and P.W.38 who vouch for the fact that they all dispersed from the Hotel at 6.30 p.m. The I.O. in his evidence has stated that the game of cards gave over at 2200 hours which is contrary to the evidence of P.W.27 P.W.28 Crl.A. No.018 16 Subash Thapa vs. State of Sikkim P.W.38 and P.W.6 one of the Hotel owners according to whom her Hotel closed down at 7 p.m. The evidence of P.W.2 that he reached the Hotel at 7.30 p.m. to 8 p.m. therefore falls flat considering that the Hotel owner claimed that her Hotel closed down at 7 p.m. Although Learned Public Prosecutor had contended that P.W.1 had seen the appellant and the deceased at her Hotel thereby buttressing the last seen theory under cross examination P.W.1 stated that she did not see the appellant on the relevant day at her Hotel. She also stated that the deceased had „allegedly‟ come to her Hotel at around 4.30 p.m. To compound the confusion P.W.5 added that “ ….. during the investigation it was found that during the day the deceased had last been seen with the accused on the motorbike”. In light of the anomalies with regard to the time of closure of the Hotel the time when P.W.2 reached there and the consistent contradictory evidence of the time of dispersal of the gathering added to the contradictory evidence of P.W.2 with that of P.W.27 28 and 38 the evidence of P.W.2 having last seen the deceased and the appellant together on the motorbike cannot be countenanced. Hence the cogent and consistent evidence essential to establish the last seen theory in the Prosecution case is glaringly lacking. Besides P.W.2 no other person assembled at the Hotel and gambling there had seen the victim in possession of a large sum of money. It is these anomalies and conflicting evidence that make the testimony of P.W.2 untenable and unworthy of reliance and not the fact that he is a Police personnel. Beneficially it may also be stated that it is no more res integra that it is not prudent for the Court to base its conviction solely on the basis of the last seen theory. Crl.A. No.018 17 Subash Thapa vs. State of Sikkim Next on the basis of Exhibit 5 the Disclosure Statement of the appellant under Section 27 of Indian Evidence Act 1872 allegedly made in the presence of PWs 15 and 16 M.O.VII cash amounting to Rs.71 000 only was recovered vide Exhibit 6 dated 18 04 2016 from the place allegedly shown by the appellant. Vide Exhibit 7 dated 17 04 2016 signed by PWs 15 and 16 on 18 04 2016 M.O.VIII M.O.XXVI M.O.IX and M.O.Xwere seized allegedly. But can these recoveries link the crime to the appellant In our considered opinion it would not be so in view of the contradictions that emerges in the Prosecution evidence with regard to Exhibit 5. Before discussing this aspect of the Prosecution case we may briefly examine what Section 27 of the Evidence Act entails. The provision of Section 27 of the Evidence Act is extracted below for easy reference “27. How much of information received from accused may be proved.─Provided that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a police officer so much of such information whether it amounts to a confession or not as relates distinctly to the fact thereby discovered may be proved.” Section 27 is by way of a proviso to Sections 25 and 26 of the Evidence Act by which a statement made in police custody which distinctly relates to the fact discovered is admissible in evidence against the accused. The conditions prescribed in Section 27 enabling admissibility of the statement of the accused made to Crl.A. No.018 18 Subash Thapa vs. State of Sikkim the police are enumerated in Pulukuri Kottaya and Others vs. Emperor19 which still rules the roost with regard to the interpretation of Section 27 of the Evident Act as follows “[10]. Section 27 which is not artistically worded provides an exception to the prohibition imposed by the preceding section and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that the discovery of a fact in consequence of information received from a person accused of any offence in the custody of a police officer must be deposed to and there upon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given some guarantee is afforded thereby that the information was true and accordingly can be safely allowed to be given in evidence but clearly the extent of the information admissible must depend on the exact nature of to which such fact discovered information is required to relate. Normally the section is brought into operation when a person in police custody produces from some place of concealment some object such as a dead body a weapon or ornaments said to be connected with the crime of which the informant is accused. ..” The phrase “distinctly relates to the fact discovered” in Section 27 of the Evidence Act is the foundational aspect of this provision. This phrase refers to that part of the information supplied by the accused which is the driver and immediate cause of the discovery. If a fact is actually discovered in consequence of information given by the accused it affords some guarantee of the truth of that part of the information which was the clear immediate and proximate cause of the discovery. iii) Bearing in mind the principles so enunciated we now examine Exhibit 5 recorded by the I.O. in the presence of two witnesses P.W.15 and P.W.16. In his Disclosure the appellant claims to have washed the insoles of the shoes M.O.VIII and washed the white jumper worn by him on the night of the incident 19 AIR 1947 PC 67 Crl.A. No.018 19 Subash Thapa vs. State of Sikkim which he could show the witness. P.W.43 has strangely however recovered a blood stained white Jumper and blood stained insoles allegedly in pursuance to the appellant‟s disclosure vide Exhibit 7. M.O.X a gray Jumper was not even one of the articles seized on the basis of Exhibit 5 as deposed by P.W.15. The appellant is alleged to have revealed in Exhibit 5 that the shoes M.O.VIII were kept separately and the washed insoles kept elsewhere but the Prosecution evidence indicates that the shoes were seized with the insoles in contradiction to the Disclosure Statement thereby making the recovery suspect. iv) P.W.15 and P.W.16 under cross examination admitted that articles under Exhibit 7 dated 17 04 2016 were seized on the same date i.e. 17 04 2016 at 1515 hours and recovery of the money was also made on the same date vide Exhibit 6. The Disclosure Statement Exhibit 5 was recorded on 18 04 2016 hence it emerges that recovery of articles reflected in Exhibit 7 were made prior to the disclosure which is an incongruous proposition and razes the Prosecution case to the ground. The learned Public Prosecutor sought to brush aside these anomalies as minor discrepancies however these discrepancies strike at the root of the Prosecution case since their attempt is to link the crime to the appellant on the anvil of Exhibit 5. In such a circumstance the investigation is required to be faultless. Apart from violation of the legal provision the seizures being inconsistent with the statement in Exhibit 5 are therefore prone to be viewed with suspicion. The evidence of P.W.5 fortifies the statement of P.W.15 and P.W.16 and lends further doubt to the seizures of even having been made in the presence of P.W.15 and P.W.16. According to Crl.A. No.018 20 Subash Thapa vs. State of Sikkim P.W.5 the victim‟s body was forwarded to Gangtok for post mortem while he was at the place of occurrence. This statement obtains credence from Exhibit 3 the Medico Legal Autopsy Report of the victim which records that the body was received by the STNM Hospital Gangtok on 17 04 2016 at 6.45 p.m. After forwarding the body he along with P.W.43 went to the house of the appellant for investigation after getting the keys from the father of the appellant which were returned only on the next day. They brought a few clothes of the appellant from his house and came to the Police Station. His evidence thus leads to the conclusion that he accompanied P.W.43 to the house of the appellant on 17 04 2016 itself. P.W.5 surprisingly is not even a witness to the articles seized vide Exhibit 7 and the I.O. has not explained this circumstance in his testimony nor has he disclosed as to what became of the clothes taken by him when P.W.5 had accompanied him to the appellant‟s house. It would be profitable to notice at this point that in Question No.9 put to the appellant in his Section 313 Cr.P.C. statement he has shed light on how the blood stains came on his washed clothes. The Question and Answers are extracted hereinbelow for convenience “Q. No.9 PW 15 has further stated that on the same day the police also seized a pair of blood stained shoes a jeans pant and a gray coloured jumper from your room in his presence vide Exhibit 7. What have you to say Ans: These clothes and the money was taken by the Police on 17.4.2016 from my house and brought to the Police Station. Thereafter they again rubbed blood on my clean clothes and later went and placed the clothes and money in my house in various places. On 18.4.2016 the Police then took me to my house and the money was taken out by the Police and my Crl.A. No.018 21 Subash Thapa vs. State of Sikkim clothes were also taken out by the Police from Tikjuk P.S.” Learned Public Prosecutor while relying on Paltan Mallah supra) had contended that evidence obtained under illegal search is not completely excluded unless it has caused serious prejudice to the accused. The facts and circumstances in the said case are distinguishable from the one at hand. In Paltan Mallahthe Prosecution had conducted search of the residence of A1 and recovered certain articles however the recovery was not based on Section 27 of the Evidence Act. Once the Prosecution bases its case on Section 27 of the Evidence Act then necessarily the procedure laid down therein must be followed to the hilt as the liberty of an individual is at stake. vi) P.W.25 the Junior Scientific Officer examined the Material Objects i.e. one white coloured Jumper M.O.XXVI one blue coloured Jeans pant M.O.IX one brown coloured V shaped M.O.X blood sample of victim M.O.XXVII and blood sample of the accused M.O.XXX. As providence would have the blood sample of both the appellant and the deceased belonged to the blood group „AB‟. Despite the similarity in the blood group of the victim and the deceased no effort was made during investigation to establish by further scientific evidence as to whose blood was found on the clothes and shoes of the appellant. Blood was not detected on the brown V shaped vest white Jumper and Jeans. Pausing here it requires to be reiterated that even forensic tests did not detect blood on these articles but the I.O. contrarily has recorded in Exhibit 7 that the articles were blood stained. It is relevant to recapitulate that the appellant in Exhibit 5 had stated Crl.A. No.018 22 Subash Thapa vs. State of Sikkim that the insoles of his shoes were washed but strangely appears to have contained blood stains when forwarded for forensic test. It is not the Prosecution case that there were blood stained foot prints at the site of the crime or on the road where the alleged incident took place. Thus even the forensic evidence is of no assistance to the Prosecution case. vii) P.W.3 has stated that on the date of the accident she handed over Rs.1 00 000 only to the victim. Recovery of cash amounting to Rs.71 000 only was made by the Police from the place of concealment as disclosed by the appellant but no finger prints were lifted from the currency notes to establish ownership of the currency notes followed by robbery and thereby change in ownership. No investigation ensued to prove the fate of the remaining Rs.29 000 only out of the said Rs.1 00 000 only. The added anomaly is that P.W.3 had evidently handed over Rs.1 00 000 Rupees one lakh) only in denominations of Rs.500 only but recovery was of denominations in Rs.1 000 Rupees one thousand) only. The vehement argument of the learned Public Prosecutor that the burden was cast on the appellant to establish how he came to be in possession of Rs.71 000 Rupees seventy one thousand) only in our considered opinion is against all established legal tenets as the reverse burden under Section 106 of the Evidence Act would fall into place only once the Prosecution succeeds in establishing by plausible evidence its allegations against the appellant. The Prosecution as can be seen from the discussions above has failed to discharge its obligation. Crl.A. No.018 23 Subash Thapa vs. State of Sikkim The motive of the appellant to do away with the victim has not been established nor was it established that they had inimical relations. As pointed out by learned counsel for the appellant if greed was the factor that motivated him then it needs to be mulled over as to why a sum of Rs.11 000 only said to be found in the victim‟s possession at the place of occurrence as also his gold ring were not taken by the appellant. viii) P.W.39 the Doctor who examined the victim has merely opined that the approximate time since death was 12 to 24 hours and the cause of death to the best of his knowledge and belief was due to intracranial haemorrhage with profuse loss of blood with fracture of skull as a result of blunt force trauma. No opinion was expressed on how the blunt force trauma was inflicted on the victim. An expert deposing before the Court plays a crucial role as the entire purpose of opinion evidence is to aid the Court in forming its opinion on questions concerning science medical aspects etc. Here P.W.39 was not able to opine as to whether the death was homicidal or accidental and he was disadvantaged by not having been shown M.O.I the alleged weapon of offence. The wounds on the person of the victim and the fracture of his skull could well have been the consequence of having been struck by a stoneor due to a fall from the height of the road but the Prosecution case cannot be based on conjectures. ix) Investigation has failed to explain as to how the ligature markappeared over the neck of the deceased detected by P.W.39 was inflicted. P.W.39 has opined as follows “11. Ligature mark placed over the neck and running backwards situated just over Crl.A. No.018 24 Subash Thapa vs. State of Sikkim and above the thyroid. The left ligature is placed 3.9 cm below left ear and right ligature is placed 3.8 cm below right ear. The ligature encircles the neck and does not extend upwards. Multiple small ligature marks each measuring 0.5 cm and is placed within the broad ligature mark of 5 cm. The ligature mark excludes possibility of hanging.” He however was not shown any article which could have caused the ligature mark neither has any such object been exhibited by the Prosecution before the learned trial Court to explain the mark. 12(i). So far as extra judicial confession of the appellant to P.W.37 is concerned in his evidence in chief P.W.37 stated that the appellant narrated to him in the Nepali language which roughly translated into English reads as follows I pushed the bike from behind and it toppled over. After that I took a stone and hit him and killed him. To make it appear like an accident I made it look like the bike had fallen down took the money and came home. Under cross examination it was elicited from him that this statement supra finds no place in his Section 161 Cr.P.C. statement recorded by the I.O. during the course of investigation. P.W.37 also sought to clarify that although the „wife‟ of the appellant was not present when his statement was being recorded her presence had been wrongly mentioned when in fact it was the „uncle‟ of the appellant who was present. The witness sought to rectify this error. In light of the above contradictions it would be a risky proposition to rely on the deposition of this witness as his evidence before the Court appears to be an effort to improve the Prosecution case by insertion of concocted statements which had earlier not been made by him. According to P.W.36 the appellant had told him that he had returned home with the victim and that now he would be dragged into the matter but he had also added Crl.A. No.018 25 Subash Thapa vs. State of Sikkim that after they returned together he had gone home while the victim had proceeded ahead towards 13th Mile. If that be the case then the statement of the appellant made to the witness must be appreciated in its entirety and the Prosecution cannot pick and choose sentences which suit them and discard the portions unsavoury to the Prosecution. Although the learned trial Court observed that the accident could not have occurred in view of the absence of mechanical failure of the bike however the fact that the appellant was speeding and went off the road also cannot be discounted these are therefore only conjectures and surmises not evidence. The Motor Vehicle Inspector P.W.26 was not in a position to state whether the victim was speeding or not. Moreover finger prints were not lifted by the I.O. from the motorbike to substantiate the Prosecution version that the appellant was riding pillion when the victim was driving at the time of the incident. The statements of P.W.5 and P.W.43 that the appellant attempted to escape from the custody of the Police have to be taken with a pinch of salt as records reveal that no such effort was made by him during the entire intervening night after the alleged incident although he was allegedly in possession of the stolen amount of Rs.71 000 only and could well have made good his escape. iv) That having been said the delay in forwarding the blood sample of the victim to P.W.25 the Junior Scientific Officer stationed at Ranipool East District of Sikkim on 08 05 2016 when the incident had occurred on the intervening night of 16 04 2016 Crl.A. No.018 26 Subash Thapa vs. State of Sikkim and 17 04 2016 has not been explained by the Prosecution and adds to the doubts about the authenticity of the Prosecution case. Despite there being strong suspicion against the appellant with regard to him having a hand in the death of the appellant suspicion however strong cannot replace certainty. Moral conviction cannot be resorted to in a criminal case as the golden rule is proof of case beyond a reasonable doubt. In the end result we find that the Prosecution has not only failed to establish the last seen together theory but also the motive of the appellant for committing the crime. On pain of repetition it is reiterated that the seizure of the articles allegedly based on Exhibit 5 is fraught with inconsistencies. In the absence of cogent consistent and plausible evidence furnished by the Prosecution there is every possibility of a false implication of the appellant. Consequently the conviction and sentence imposed on the appellant vide the impugned Judgment and Order on Sentence of the Learned Trial Court are set aside. The appellant is acquitted of the charge under Sections 302 392 and 427 of the IPC. Appeal allowed. Appellant be released from custody forthwith unless required to be detained in connection with any other case. Fine if any deposited by the appellant in terms of the impugned Order on Sentence be reimbursed to him. No order as to costs. Crl.A. No.018 27 Subash Thapa vs. State of Sikkim 20. Copy of this Judgment be transmitted to the learned trial Court for information along with its records and a copy be sent forthwith to the Jail Authorities as also e mailed. ( Biswanath Somadder ) Judge Chief Justice 14 12 2021 14 12 2021 Approved for reporting : Yes ds

Inappropriate for a court to intervene in matters of reservation of Parliamentary Seats in Lok Sabha inspite of presence of Delimitation Commission: The High Court of Jammu and Kashmir

In due deference to the doctrine of separation of powers, the court refrained from issuing any mandamus to the respondents to reserve one Parliamentary Seat each for SCs and STs as was claimed by the petitioners. The aforesaid has been established by the High Court of Jammu and Kashmir while adjudicating the case of Chaman Lal Kanathia and Ors v. UOI and others [OWP No.200/2009] which was adjudicated upon by a single judge bench comprising Justice Sanjeev Kumar on 8th October 2021. The brief facts of the case are as follows. The petitioners, who claimed to be the members of Schedule Caste and Scheduled Tribe categories sought a mandamus to the respondents to reserve one Parliamentary Seat in the Lok Sabha in the State of Jammu and Kashmir for the Scheduled Castes and one Parliamentary Seat for the Scheduled Tribe categories under Article 330 (1) & (2) read with Article 341 & 342 of the Constitution of India. They also prayed for an order restraining the respondents from conducting Parliamentary elections in the near future. Reliance is placed by learned ASGI on the judgment of the Hon’ble Supreme Court in the case of Megh Raj Kothari v. Delimitation Commission, AIR 1967 SC 669 to contend that the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purported to be made under Article 327 or Article 328 is not open to challenge in any Court. The court perused the facts and arguments presented. It was hence of the opinion that “this Court cannot issue a mandamus to the respondents to reserve a particular parliamentary constituency for the Scheduled Caste or Scheduled Tribe categories. A view in this regard is required to be taken by the competent authority on the basis of recommendations made by the Delimitation Commission constituted under The Delimitation Act, 2002. [Act of 2002]. In view of the aforesaid when the Delimitation Commission is seized of the matter and exercise is underway, it would not be appropriate for this Court to make an intervention in the matter. The petitioners, if aggrieved, are well within their right to approach the Commission with their representation and seek consideration of their grievance. It is for the Delimitation Commission constituted for Jammu and Kashmir to consider the grievance of the petitioners and redress the same if found genuine. This petition is, accordingly, found not maintainable and dismissed, leaving it open to the petitioners to approach the Delimitation Commission with an appropriate representation.”

Case No.5 HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT JAMMU OWP No.200 2009 IA No. 248 2009 Reserved on 05.10.2021. Pronounced on 08 .10.2021. petitionerThrough : Mr. Roop Lal Advocate Chaman Lal Kanathia and ors UOI and others Through : Mr. Vishal Sharma ASGI Coram: HON’BLE MR. JUSTICE SANJEEV KUMAR JUDGE In this petition the petitioners who claim to be the members of Schedule Caste and Scheduled Tribe categories seek a mandamus to the respondents to reserve one Parliamentary Seat in the Lok Sabha in the State of Jammu and Kashmir for the Scheduled Castes and one Parliamentary Seat for the Scheduled Tribe categories under Article 330 & read with Article 341 & 342 of the Constitution of India. They also pray for an order restraining the respondents from conducting Parliamentary elections in near future. Mr. Vishal Sharma learned ASGI appearing for the respondents relies upon the counter affidavit which the respondents filed on behalf of Election Commission of India in OWP No. 816 1999 which already stands disposed of by a Division Bench of this Court vide its judgment dated 31.07.2000. He submits that the present writ petition is filed on a wrong premise and without proper understanding of provisions of Articles 82 170 2 330 and 332 of the Constitution of India as they stood before the amendments made thereto by the ConstitutionGovernment of India vide S.O 1015 dated 06.03.2020 has constituted a Delimitation Commission for allocation of seats in the House of People to the UT of Jammu and Kashmir and number of seats in the Legislative Assembly. The Delimitation Commission constituted for Jammu and Kashmir was given one year’s time to complete its exercise and submit its report. However vide S.O 1023dated 03.03.2021 the period of Delimitation Commission has been extended from one year to two years. In view of the aforesaid when the Delimitation Commission is seized of the matter and exercise is under way it would not be appropriate for this Court to make intervention in the matter. The petitioners if aggrieved are well within their right to approach the Commission with their representation and seek consideration of their grievance. It is for the Delimitation Commission constituted for Jammu and Kashmir to consider the grievance of the petitioners and redress the same if found genuine. In due deference to the doctrine of separation of powers I refrain myself from issuing any mandamus to the respondents to reserve one Parliamentary Seat each for SCs and STs as is claimed by the petitioners in this petition. This petition is accordingly found not maintainable and dismissed leaving it open to the petitioners to approach the Delimitation Commission with an appropriate representation. 08 .10.2021 Sanjeev SANJEEV KUMAR) JUDGE Whether order is speaking: Yes Whether order is reportable: Yes No

Writ Petition to be set aside, in case adequate opportunity is not granted: Patna High Court

Order which has been passed without giving any opportunity or show cause to explain, which is totally impermissible in law. A single-judge bench comprising of Justice Ahsanuddin Amanullah adjudicating in the matter of M/s Egis India Consulting Engineers Pvt. Ltd v. State of Patna (Civil Writ Jurisdiction Case No.10539 of 2021) In the present case, the Petitioner is seeking relief for quashing and setting aside: – a.The debarment order issued dated 15.04.2021 issued under signature of the Chief General Manager, by which petitioners have been debarred from participating in all future tenders of the Respondent in the most arbitrary manner, contrary to principles of natural justice, illegally as well as having without jurisdiction. b. For declaring that the action of the Respondent is arbitrary, malafide, malicious, colourable exercise of power, violation of principles of natural justice as well as without jurisdiction. c. For further passing such an order or orders for which the petitioners are entitled under the law in the facts and circumstances of this case.’ The Petitioners submitted impugned order has been passed visiting hem with serious civil consequences without giving any opportunity or show cause to explain, which is totally impermissible in law. The Opposite party submitted that matter be remanded to the author of the order dated 15.04.2021which is impugned in the present writ application. The counsel on behalf of the Petitioner also agreed to the same, however it was submitted by the Petitioners that the Court may indicate that opportunity of hearing, including personal hearing, be given before a fresh decision is taken. In the present view, the court disposed off the writ petition by setting aside the order dated 15.04.2021 issued by the respondent no. 5 under Letter No. BSRDC Ltd.3384/2020-1180, Patna. He shall pass a fresh order, in accordance with law, after giving an opportunity of hearing, including personal hearing, if so desired by the petitioners, within two months from today.

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.105321 1. M s Egis India Consulting Engineers Pvt. Ltd. a company registered under the Companies Act 1956 2013 Having its registered office at _ T 305 TF Tirupati Plaza Sector XI Aged abour 32 years S o Kameshwar Prasad _ R o 56 Sardar Patel Colony near SanichraAsthan Sandalpur Road No. 3 PO Mahendru P.S. Sultanganj District Patna Bihar 800006. 2. M s Egis International S.A.S. a company incorporated under the laws of France Having its registered office at T 305 TF Tirupati Plaza Sector XI MLU) Pocket _ 4 Plot No. 11 Dwarka New Delhi 110075 Through its Authorised Representative Mr. Ashwini Kumar Aged about 32 years S o Kameshwar Prasad R o 56 Sardar Patel Colony near SanichraAsthan Sandalpur Road No. 3 P.O. Mahendru P.S. Sultanganj District Patna Bihar 800006. ... Petitioner s 1. The State of Bihar through the Additional Chief Secretary Road Construction Department Government of Bihar Patna. 2. The Additional Chief Secretary Road Construction Department Government of Bihar Patna. 3. The Bihar State Road Development Corporation Ltd Through its Managing Director Central Mechanical Workshop Campus Near Airport Sheikhpura 4. The Managing Director Bihar State Road Development Corporation Ltd. 5. The Chief General Manager Bihar State Road Development Corporation Ltd Patna. ... Respondent s Appearance : For the Petitioner s For the Respondent s For the BSRDCL Mr. P K Shahi Senior Advocate with Mr. Brisketu Sharan Pandey Advocate Mr. Uday Shankar Sharan Singh GP 19 with Mr. Uday Bhanu Singh AC to GP 19 Mr. Lalit Kishore Senior Advocate with Mr. Manish Dhari Singh Advocate CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 15 06 2021 The matter has been heard via video conferencing. Patna High Court CWJC No.105321 dt.15 06 2021 2 4 2. Heard Mr. P K Shahi learned senior counsel along with Mr. Brisketu Sharan Pandey learned counsel for the petitioners Mr. Uday Shankar Sharan Singh learned GP 19 along with Mr. Uday Bhanu Singh learned AC to GP 19 for the State and Mr. Lalit Kishore learned senior counsel along with Mr. Manish Dhari Singh learned counsel for the Bihar State Road Development Corporation Ltd.as contained in Annexure P1 by which petitioners have been debarred participating in all future tenders of the Respondent No. 5 in the most arbitrary manner contrary to principles of natural justice illegally as well as having without jurisdiction. b. For declaring Respondent No. 5 is arbitrary malafide malicious colourable exercise of power violation of principles of natural justice as well as without jurisdiction. the action of c. For further passing such an order or orders for which the petitioners are entitled under the law in the facts and circumstances of this case.’ 4. Learned senior counsel the petitioners submitted that the order impugned has been passed visiting Patna High Court CWJC No.105321 dt.15 06 2021 3 4 them with serious civil consequences without giving any opportunity or show cause to explain which impermissible in law. 5. On a response sought by the Court on this short point learned senior counsel for BSRDCL submitted that the matter be remanded to the author of the order dated 15.04.2021 respondent no. 5) which is impugned in the present writ applicationfor passing a fresh order. 6. Learned counsel for the petitioners readily agreed to the same. However he submitted that the Court may indicate that opportunity of hearing including personal hearing be given before a fresh decision is taken by the respondent no. 5 in the matter. 7. In view of the aforesaid agreed position the writ petition stands disposed off by setting aside the order dated 15.04.2021 issued by the respondent no. 5 under Letter No. BSRDC Ltd.3384 2020 1180 Patna. He shall pass a fresh order in accordance with law after giving an opportunity of hearing including personal hearing if so desired by the petitioners within two months from today. 8. At this juncture learned counsel submitted that the first day when the petitioners would appear before the Patna High Court CWJC No.105321 dt.15 06 2021 4 4 respondent no. 5 be indicated so that the matter is expedited and not left pending. 9. The Court finds substance in the suggestion. 10. Accordingly as agreed between the parties the petitioners shall appear before the respondent no. 5 at 11.00 AM in his office on 5th July 2021. Upon doing so the respondent no. 5 shall fix a date when he shall afford hearing to the petitioners and thereafter the matter shall be concluded within two months by the respondent no. 5 by passing a fresh order in accordance with law. 11. It goes without saying that respondent no. 5 shall serve a formal show cause notice on the petitioners on the day of appearance so that they are able to reply. 12. The Court would clarify that it has not expressed any opinion on the merits of the matter. Anjani

THE STATE OF MADHYA PRADESH AND ANOTHER Vs. BALDEO PRASAD

If the statute is silent in respect of one of such conditions precedent it undoubtedly constitutes a serious infirmity which would inevitably take it out of the provisions of Art. By an order passed under s. 4-A of the Central Provinces and Berar Goondas Act, 1946 (X of 1946), as amended by the Madhya Pradesh Act XLIX of 950, the State of Madhya Pradesh directed the respondent to leave the district of Chhindwara, which had been specified as a proclaimed area under the Act, and the District Magistrate by another order communicated the same to the respondent. The respondent challenged the said orders under Art. 226 of the Constitution on the ground that the Act violated his fundamental rights under Art. i9(i)(d) and (e) of the Constitution and was, therefore, invalidated by Art. 13 Of the Constitution. The High Court held that ss. 4 and 4-A of the impugned Act were invalid and since they were the main operative provisions of the Act, the whole Act was invalid. Appellant 1 issued a proclamation under S. 3 on August 10, 1954, specifying the limits of Police Stations Parasia and Jamai and Chhindwara Town as proclaimed area. This proclamation was renewed in November, 1954 and February, 1955. Thereafter on May 9, 1955, appellant 1 issued afresh proclamation specifying the whole of the Chhindwara District as the proclaimed area. This proclamation was to remain in force till August 8, 1955. Whilst the second proclamation was in force the second appellant received reports from the District Superintendent of Police, Chhindwara, against the respondent, and he ordered the issue of a notice to him to show cause why action should not be taken against him under s. 4; this notice required the respondent to appear before the second appellant on April 29, 1955. The respondent, though served, did not appear before the second appellant. Thereupon the second appellant sent a report to appellant 1 on April 30, 1955, and submitted the case against him with a draft order for the approval of the said appellant under the first proviso to s. 4(1). In the meantime the third notification was issued by appellant 1. The second appellant then issued a fresh notice against the respondent under s. 4 on May 24, 1955. The respondent appeared in person on May 30, 1955, and was given time to file his written statement which he did on June 4, 1955. The case was then fixed for hearing on June 22, 1955. Meanwhile the State Government passed an order on June 16, 1955, directing that the respondent shall, except in so far as he may be permitted by the second appellant from time to time, not remain in any place in Chhindwara District. This order was to remain in force until August 8, 1955. On June 22, 1955, the second appellant communicated the said order to the respondent and directed him to leave the District before 10 a. m. on June 23, 1955. The respondent appealed to appellant 1 to cancel the order passed against him. The first appellant treated the appeal as a representation made by the respondent under s. 6 and rejected it on July 9, 1955. A day before this order was passed the respondent filed his writ petition in the High Court from which the present appeal, arises.The respondent challenged the validity of the Act on the ground that it invades his fundamental rights under Art. 19(1)(d) and (e) and as such it becomes invalid having regard to the provisions of Art. 13 of the Constitution. This plea has been upheld by the High Court. It is the correctness of this conclusion which is challenged before us by the appellants.ISSUE BEFORE THE COURT: The High Court’s decision of  upholding that ss. 4 and 4-A of the Act are invalid, and since the two sections contain the main operative provisions of the Act, the whole Act became invalid is in question. RATIO OF THE COURTThe court viewed that when a statute authorises preventive action against the citizens, it is essential that it must expressly provide that the specified authorities should satisfy themselves that the conditions precedent laid down by the statute existed before they acted thereunder. If the statute fails to do so in respect of any such condition precedent, that is an infirmity sufficient to take the statute out of Art. 19(5) Of the Constitution. Although there can be no doubt that ss. 4 and 4-A of the impugned Act clearly contemplated as the primary condition precedent to any action thereunder that the person sought to be proceeded against must be a goonda, they fail to provide that the District Magistrate should first find that the person sought to be proceeded against was a goonda or provide any guidance whatsoever in that regard or afford any opportunity to the person proceeded against to show that he was not a goonda. The definition of a goonda laid down by the Act, which is of an inclusive character, indicated no tests for deciding whether the person fell within the first part of the definition. Section 27 of the City of Bombay Police Act, 1902 (4 of 1902), which provides for the dispersal of gangs and bodies of persons has been upheld by this Court in Gurbachan Singh v. The State of Bombay wherein It would be  noticed that the relevant provisions in the latter Act the validity of which has been upheld by this Court indicate how the mischief apprehended from the activities of undesirable characters can be effectively checked by making clear and specific provisions in that behalf, and how even in meeting the challenge to public peace and order sufficient safeguards can be included in the statute for the protection of innocent’ citizens. It is not clear whether the opportunity to be heard which is provided for by s. 4(2) would include an opportunity to the person concerned to lead evidence. Such an opportunity has, however, been provided by s. 59(1) of the Bombay Act of 1951. Although the object of the impugned Act was beyond reproach and might well attract Art. 19(5) of the Constitution, since the Act itself failed to provide sufficient safeguards for the protection of the fundamental rights and the operative sections were thus rendered invalid, the entire Act must fail.DECISION HELD BY COURT: The court decided that the infirmities in the operative sections of the Act are so serious that it would be impossible to hold that the Act is saved under Art. 19(5) of the Constitution. There is no doubt that if the operative sections are invalid the whole Act must fall. In the result the order passed by the High Court is confirmed and the appeal is dismissed with costs. Appeal dismissed.

THE STATE OF MADHYA PRADESH AND ANOTHER Vs DATE OF JUDGMENT GAJENDRAGADKAR P.B GAJENDRAGADKAR P.B SINHA BHUVNESHWAR P.(CJ KAPUR J.L SUBBARAO K WANCHOO K.N 1961 AIR 293 1961 SCR 970 CITATOR INFO RF 1962 SC1371 as amended by Act XLIX of 1950 ss. 4 4 A Constitution of India Arts. 19(1)(d) &13 By an order passed under s. 4 A of the Central Provinces and Berar Goondas Act 1946as amended by the Madhya Pradesh Act XLIX of 950 the State of Madhya Pradesh directed the respondent to leave the district of Chhindwara which had been specified as a proclaimed area under the Act and the District Magistrate by another order communicated the same to the respondent. The respondent challenged the said orders under Art. 226 of the Constitution on the ground that the Act violated his fundamental rights under Art i9(i)(d) and of the Constitution and was therefore invalidated by Art. 13 Of the Constitution. The High Court held that ss. 4 and 4 A of the impugned Act were invalid and since they were the main operative provisions of the Act the whole Act was in Held that when a statute authorises preventive action against the citizens it is essential that it must expressly provide that the specified authorities should satisfy themselves that the conditions precedent laid down by the statute existed before they acted thereunder. If the statute fails to do so in respect of any such condition precedent that is an infirmity sufficient to take the statute out of Art. 19(5) Of the Constitution Although there can be no doubt that ss. 4 and 4 A of the impugned Act clearly contemplated as the primary condition precedent to any action thereunder that the person sought to be proceeded against must be a goonda they fail to provide that the District Magistrate should first find that the person sought to be proceeded against was a goonda or provide any guidance whatsoever in that regard or afford any opportunity to the person proceeded against to show that he was not a goonda. The definition of a goonda laid down by the Act which is of an inclusive character indicated no tests for deciding whether the person fell within the first part of the definition Gurbachan Singh v. The State of Bombay S.C.R. 737 Bhagubhai Dullabhabhai Bhandari v. The District’ Magistrate Thana S.C.R. 533 and Hari Khenu Gawali v. The Deputy Commissioner of Police Bombay S.C.R. 506 referred Although the object of the impugned Act was beyond reproach and might well attract Art. 19(5) of the Constitution since the Act itself failed to provide sufficient safeguards for the protection of the fundamental rights and the operative sections were thus rendered invalid the entire Act must CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2756 Appeal from the judgment and order dated August 2 1955 of the former Nagpur High Court in Misc. Petition No. 249 of M. Adhikari Advocate General for the State of Madhya Pradesh B. K. B. Naidu and I. N. Shroff for the R. Patnaik for the respondent 1960. October 3. The Judgment of the Court was delivered by GAJENDRAGADKAR. J. This appeal with a certificate issued by the Nagpur High Court under Art. 132(1) of the Constitution raises a question about the validity of the Central Provinces and Berar Goondas Act X of 1946 as amended by Madhya Pradesh Act XLIX of 1950 It appears that against the respondent Baldeo Prasad the State of Madhya Pradesh appellant 1 passed an order on June 16 1955 under s. 4 A of the Act. Subsequently the District Magistrate Chhindwara appellant 2 passed another order dated June 22 1955 communicating to the respondent the first externment order passed against him. The respondent then filed’a writ petition in the High Courtunder Art. 226 challenging the validity of the said orders inter alia on the ground that the Act under which the said orders were passed was itself ultra vires The appellants disputed the respondent’s contention about the vires of the Act. The High Court however has upheld the respondent’s plea and has held that ss. 4 and 4 A of the Act are invalid and since the two sections contain the main operative provisions of the Act according to the High Court the whole Act became invalid. It is the correctness of this conclusion which is challenged before us by the It would be convenient at this stage to refer briefly to the scheme of the Act and its relevant provisions. The Act was passed in 1946 and came into force on September 7 1946. It was subsequently amended and the amended Act came into force on November 24 1950. As the preamble shows the Act was passed because it was thought expedient to provide for the control of goondas and for their removal in certain circumstances from one place to another. Section 2 defines a goonda as meaning a hooligan rough or a vagabond and as including a person who is dangerous to public peace or tranquillity. It would thus be seen that the definition of the word " goonda " is an inclusive definition and it includes even persons who may not be hooligans roughs or vagabonds if they are otherwise dangerous to public peace or tranquillity. Section 3(1) empowers the State Government to issue a proclamation that disturbed conditions exist or are likely to arise in the areas specified in such proclama tions if the State Government is satisfied that public peace or tranquillity in any area is disturbed or is likely to be disturbed. The area in respect of which a proclamation is thus issued is described in the Act as the proclaimed area. Section 3(2) limits the operation of the proclamation to three months from its date and provides that it may be renewed by notification from time to time for a period of three months at a time. The first step to be taken in enforcing the operative provisions of the Act thus is that a proclamation has to be issued specifying the proclaimed areas and the limitation on the power of the State Government to issue such a proclamation is that the proclamation can be issued only after it is satisfied as required by s. 3(1) and its life will not be longer than three months at a stretch. Section 4 reads thus " 4(1). During the period the proclamation of emergency issued or renewed under Section 3 is in operation the District Magistrate having jurisdiction in or in any part of the proclaimed area if satisfied that there are reasonable grounds for believing that the presence movements or acts of any goonda in the proclaimed area is prejudicial to the interests of the general public or that a reasonable suspicion exists that any goonda is committing or is likely to commit acts calculated to disturb the public peace or tranquillity may make an order directing such goonda to notify his residence and any change of or absence from such residence during the term specified and to report his movements in such manner and to such authority as may be specified directing that he shall not remain in the proclaimed area within his jurisdiction or any specified part thereof and shall not enter such area anddirecting him so to conduct himself during the period specified as the District Magistrate shall deem necessary in the interests of public order: Provided that no order under clause which directs the exclusion of any goonda from a place in which he ordinarily resides shall be made except with the previous approval of the State Government Provided further that no such order shall be 124 made directing exclusion of any goonda from the district in which he ordinarily resides No order under sub sectionshall be made by a District Magistrate in respect of a goonda without giving to such goonda a copy of the grounds on which the order is proposed to be made and without giving an opportunity to be heard Provided that where the District Magistrate is of opinion that it is necessary to make an order without any delay he may for reasons to be recorded in writing make the order and shall as soon as may be within ten days from the date on which the order is served on the goonda concerned give such goonda a copy of the grounds and an opportunity to be After hearing the goonda the District Magistrate may cancel or modify the order as he thinks fit. This section confers on the District Magistrate jurisdiction to make an order against a goonda if there are reasonable grounds for believing that his presence movements or acts in any proclaimed area is likely to be prejudicial to the interests of the general public or it there is a reasonable suspicion that a goonda is committing or is likely to commit prejudicial acts. Sub clauses(ii) andindicate the nature of the directions and the extent of the restrictions which can be placed upon a goonda by an order passed under s. 4. Sub sectionrequires the District Magistrate to give the goonda a copy of the grounds on which an order is proposed to be made and to give him an opportunity to be heard why such an order should not be passed against him. The proviso to the section deals with an emergency which needs immediate action. After hearing the goonda the District Magistrate may under sub s. Where the District Magistrate considers that with a view to maintain the peace and tranquillity of the proclaimed area in his district it is necessary to direct a goonda to remove himself outside the district in which the proclaimed area is comprised or to require him to reside or remain in any place or within any area outside such district the District Magistrate may after giving the goonda an opportunity as required by sub section of Section 4 forward to the State Government a report together with connected papers with a recommendation in that behalf On receipt of such report the State Government may if it is satisfied that the recommendation made by the District Magistrate is in the interests of the general public make an order directing such goonda that except in so far as he may be permitted by the provisions of the order or by such authority or person as may be specified therein he shall not remain in any such area or place in Madhya Pradesh as may be specified in the order to reside or remain in such place or within such area in Madhya Pradesh as may be specified in the order and if he is not already there to proceed to that place or area within such time as may by specified in the order Provided that no order shall be made directing the exclusion or removal from the State of any person ordinarily resident in the State Thus an order more stringent in character can be passed under this section. The safeguard provided by the section however is that the District Magistrate is required to give the goonda an opportunity to be heard and further required to make a report to the State Government and forward to the State Government papers connected with the recommendation which the District Magistrate makes. Sub sectionof s 4 A then requires the State Government to consider the matter and empowers it to make an order either under cl.of the said sub section. The proviso to this section lays down that Do order shall be made by which the goonda would be excluded or removed from the State where he ordinarily resides. The last section to which reference may be made is s. 6. It gives a goonda aggrieved by an order made against him inter alia under s. 4 or s. 4 A to make a representation to the State Government within the time prescribed and it requires the State Government to consider the representation and make such orders thereon as it may deem fit. That in brief is the scheme of the Act At this stage it would be material to state the relevant facts leading to the writ petition filed by the respondent Appellant 1 issued a proclamation under S. 3 on August 10 1954 specifying the limits of Police Stations Parasia and Jamai and Chhindwara Town as proclaimed area. This proclamation was renewed in November 1954 and February 1955. Thereafter on May 9 1955 appellant 1 issued afresh proclamation specifying the whole of the Chhindwara District as the proclaimed area. This proclamation was to remain in force till August 8 1955 Whilst the second proclamation was in force the second appellant received reports from the District Superintendent of Police Chhindwara against the respondent and he ordered the issue of a notice to him to show cause why action should not be taken against him under s. 4 this notice required the respondent to appear before the second appellant on April 29 1955. The respondent though served did not appear before the second appellant. Thereupon the second appellant sent a report to appellant 1 on April 30 1955 and submitted the case against him with a draft order for the approval of the said appellant under the first pro viso to s. 4(1). In the meantime the third notification was issued by appellant 1. The second appellant then issued a fresh notice against the respondent under s. 4 on May 24 1955. The respondent appeared in person on May 30 1955 and was given time to file his written statement which he did on June 4 1955. The case was then fixed for hearing on June 22 1955. Meanwhile the State Government passed an order on June 16 1955 directing that the respondent shall except in so far as he may be permitted by the second appellant from time to time not remain in any place in Chhindwara District. This order was to remain in force until August 8 1955. On June 22 1955 the second appellant communicated the said order to the respondent and directed him to leave the District before 10 a. m. on June 23 1955. The respondent appealed to appellant 1 to cancel the order passed against him. The first appellant treated the appeal as a representation made by the respondent under s. 6 and rejected it on July 9 1955. A day before this order was passed the respondent filed his writ petition in the High Court from which the present appeal arises The respondent challenged the validity of the Act on the ground that it invades his fundamental rights under Art 19(1)(d) and and as such it becomes invalid having regard to the provisions of Art. 13 of the Constitution This plea has been upheld by the High Court. On behalf of the appellants the learned Advocate General of Madhya Pradesh contends that the High Court was in error in coming to the conclusion that the restrictions imposed by the Act did not attract the provisions of Art. 19(5). The legislative competence of the State Legislature to pass the Act cannot be disputed. The Act relates to public order which was Entry I in List II of the Seventh Schedule to the Constitution Act of 1935. There can also be no doubt that the State Legislature would be competent to pass an act protecting the interests of the general public against the commission of prejudicial acts which disturb public peace and order. Section 3 of the Act indicates that it is only where the public peace or tranquillity is threatened in any ’given area of the State that the State Government is authorised to issue a proclamation and as we have already noticed it is in respect of such proclaimed areas and for the limited duration prescribed by s. 3(2) that orders can be passed against goondas whose prejudicial activities add to the disturbance in the proclaimed areas. Therefore broadly stated the purpose of the Act is to safeguard individual rights and protect innocent and peaceful citizens against the prejudicial activities of goondas and in that sense the Act may prima facie claim the benefit of Art 19(5). This position is not seriously disputed The argument against the validity of the Act is however based on one serious infirmity in s. 4 and s.4 A which contain the operative provisions of the Act This infirmity is common to both the sections and so what we will say about s. 4 will apply with equal force to s. 4 A. It is clear that s. 4 contemplates preventive action being taken provided two conditions are satisfied first that the presence movements or acts of any person sought to be proceeded against should appear to the District Magis trate to be prejudicial to the interests of the general public or that a reasonable suspicion should exist that such a person is committing or is likely to commit acts calculated to disturb public peace or tranquillity and second that the person concerned must be a goonda. It would thus be clear that it is only where prejudicial acts can be attributed to a goonda that s. 4 can come into operation In other words the satisfaction of the first condition alone would not be enough both the conditions must be satisfied before action can be taken against any person That clearly means that the primary condition precedent for taking action under s. 4 is that the person against whom action is proposed to be taken is a goonda and it is precisely in regard to this condition that the section suffers from a serious infirmity The section does not provide that the District Magistrate must first come to a decision that the person against whom he proposes to take action is a goonda and gives him no guidance or assistance in the said matter. It is true that under s. 4 a goonda is entitled to have an opportunity to be heard after he is given a copy of the grounds on which the order is proposed to be made against him but there is no doubt that all that the goonda is entitled to show in response to the notice is to challenge the correctness of the grounds alleged against him. The enquiry does not contemplate an investigation into the question as to whether a person is a goonda or not. The position therefore is that the District Magistrate can proceed against a person without being required to come to a formal decision as to whether the said person is a goonda or not and in any event no opportunity is intended to be given to the person to show that he is not a goonda. The failure of the section to make a provision in that behalf undoubtedly constitutes a serious infirmity in its scheme Incidentally it would also be relevant to point out that the definition of the word " goonda " affords no assistance in deciding which citizen can be put under that category. It is an inclusive definition and it does not indicate which tests have to be applied in deciding whether a person falls in the first part of the definition. Recourse to the dictionary meaning of the word would hardly be of any assistance in this matter. After all it must be borne in mind that the Act authorises the District Magistrate to deprive a citizen of his fundamental right under Art 19(1)(d) andand though the object of the Act and its purpose would undoubtedly attract the provisions of Art 19(5) care must always be taken in passing such acts that they provide sufficient safeguards against casual capri cious or even malicious exercise of the powers conferred by them. It is well known that the relevant provisions of the Act are initially put in motion against a person at a lower level than the District Magistrate and so it is always necessary that sufficient safeguards should be provided by the Act to protect the fundamental rights of innocent citizens and to save them from unnecessary harassment. That is why we think the definition of the word " goonda " should have given necessary assistance to the District Magistrate in deciding whether a particular citizen falls under the category of goonda or not that is another infirmity in the Act. As we have already pointed out s. 4 A suffers from the same infirmities as s. 4 Having regard to the two infirmities in ss. 4 4 A respectively we do not think it would be possible to accede to the argument of the learned Advocate General that the operative portion of the Act can fall under Art. 19(5) of the Constitution. The person against whom action can be taken under the Act is not entitled to know the source of the information received by the District Magistrate be is only told about his prejudicial activities on which the satisfaction of the District Magistrate is based that action should be taken against him under s. 4 or s. 4 A. In such a case it is absolutely essential that the Act must clearly indicate by a proper definition or otherwise when and under what circumstances a person can be called a goonda and it must impose an obligation on the District Magistrate to apply his mind to the question as to whether the person against whom complaints are received is such a goonda or not. It has been urged before us that such an obligation is implicit in ss. 4 and 4 A. We are however not impressed by this argument. Where a statute empowers the specified authorities to take preventive action against the citizens it is essential that it should expressly make it a part of the duty of the said authorities to satisfy themselves about the existence of what the statute regards as conditions precedent to the exercise of the said authority. If the statute is silent in respect of one of such conditions precedent it undoubtedly constitutes a serious infirmity which would inevitably take it out of the provisions of Art 19(5). The result of this infirmity is that it has left to the unguided and unfettered discretion of the authority concerned to treat any citizen as a goonda. In other words the restrictions which it allows to be imposed on the exercise of the fundamental right of a citizen guaranteed by Art. 19(1)(d) andmust in the circumstances be held to be unreasonable. That is the view taken by the High Court and we see no reason to differ from it In this connection we may refer to the corresponding Bombay statute the material provisions of which have been examined and upheld by this Court. Section 27 of the City of Bombay Police Act 1902 which provides for the dispersal of gangs and bodies of persons has been upheld by this Court in Gurbachan Singh v. The State of Bombay have been confirmed respectively in Bhagubhai Dullabhabhai Bhandari v. The District Magistrate Thana and Hari Khemu Gawali v. The Deputy Commissioner of Police Bombay[1952] S.C.R. 737. [1956] S.C.R. 533 [1956] S.C.R. 506 noticed that the relevant provisions in the latter Act the validity of which has been upheld by this Court indicate how the mischief apprehended from the activities of undesirable characters can be effectively checked by making clear and specific provisions in that behalf and how even in meeting the challenge to public peace and order sufficient safeguards can be included in the statute for the protection of innocent’ citizens. It is not clear whether the opportunity to be heard which is provided for by s. 4(2 would include an opportunity to the person concerned to lead evidence. Such an opportunity has however been provided by s. 59(1) of the Bombay Act of 1951. As we have already mentioned there can be no doubt that the purpose and object of the Act are above reproach and that it is the duty of the State Legislature to ensure that public peace and tranquillity is not disturbed by the prejudicial activities of criminals and undesirable characters in society. That however cannot help the appellants’ case because as we have indicated the infirmities in the operative sections of the Act are so serious that it would be impossible to hold that the Act is saved under Art. 19(5) of the Constitution There is no doubt that if the operative sections are invalid the whole Act must fall In the result the order passed by the High Court is confirmed and the appeal is dismissed with costs Appeal dismissed

Petitioners were released on bail upon furnishing bail bonds after being arrested under Sections 302 and 201/34 of the Indian Penal Code: High court of Patna

This is in connection with Chautarwa PS Case No. 420 of 2020 dated 02.10.2020, petitioner No.1 and No.2 were taken into custody under Section 302 IPC, “Punishment for murder”, section 201 “Causing disappearance of evidence of the offense, or giving false information to screen offender”, section 34IPC “Acts done by several persons in furtherance of common intention”. This judgment was given in the high court of judicature at Patna by honorable Mr. Justice Ahsanuddin Amanullah on the 29th of July 2021 in the case of Ripusudan Dubey versus the state of Bihar criminal miscellaneous No. 7800 of 2021, Mr. Mishra represented as the advocate for the petitioner and Mr. Arif represented the state of Bihar as the additional Public Prosecutor, the proceedings of the court were held through video conference. The following are the facts of the case, petitioners no.1 and 2 were accused of killing the informant’s brother. According to the counsel for the petitioners, he held that according to the FIR the informant appeared to be the witness to the crime and accordingly named petitioners 1 and 2 but it was transpired that he was not clearly an eye witness as him along with his family members tried to locate the deceased since he did not return home. The next morning, the dead body was recovered, proving that the informant was not the eyewitness to the crime. The counsel further stated that there has been a long history of enmity and litigation between the parties and they have been filing several cases against each other. The counsel stated that the deceased was a criminal and was accused in various murder cases and was residing in a village of his sister-in-law, the other brothers were also killed because of their criminal history either in a police encounter or by others, and the deceased was accused under section 302 of the Indian penal code and the trial was yet to be held. Therefore there is no evidence to accuse the petitioners of this crime. Petitioner no.1 is the Panch of Gram Kuchery of Salha Bariarwa and had conducted several Panchayati against the informant and the informant’s brother-in-law. the counsel further held that petitioner no.1 accused the informant and his brother-in-law of snatching Rs. 50,000 at gunpoint and assaulting him. Therefore mere suspicion cannot be held as grounds for arrest. The Additional Public Prosecutor held that the brother of the deceased named the petitioners however there is no solid evidence and It is not controverted in the FIR itself. After considering the facts and circumstances of the case, the court held that the petitioners will be released on bail upon furnishing bail bonds of Rs. 25,000 each with two sureties to the  ACJM, under the conditions laid down in Section 438(2) Cr.P.C., 1973 “(i) that one of the bailors shall be a close relative of the petitioners no. 1 and 2, (ii) that the petitioners no. 1 and 2 and the bailors shall execute the bond and give undertaking concerning good behaviour of the petitioners no. 1 and 2 and (iii) that the petitioners no. 1 and 2 shall co-operate with the police/prosecution and the Court.”

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 78021 Arising Out of PS. Case No. 420 Year 2020 Thana CHOUTARWA District West Ripusudan Dubey @ Ripusudan Dwivedi aged about 30 years Male. 2. Madhurendra Dubey aged about 44 years Male. Sudarshan Dubey aged about 43 years Male. All sons of Sharda Dubey 4. Ketan Dubey @ Rajnish Kumar Dubey aged about 22 years Male Son of All Resident of Village Bariarwa PS Chautarwa District West The State of Bihar ... Petitioner s For the Petitioner s For the State Mr. Bashishth Narayan Mishra Advocate Mr. Md. Arif APP CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ... Opposite Party s ORAL JUDGMENT Date : 29 07 2021 The matter has been heard via video conferencing 2. The case has been taken up out of turn on the basis of motion slip filed by learned counsel for the petitioners on 20.07.2021 which was allowed 3. Heard Mr. Bashishth Narayan Mishra learned counsel for the petitioners and Mr. Md. Arif learned Additional Public Prosecutor for the Patna High Court CR. MISC. No.78021 dt.29 07 2021 4. The petition on behalf of petitioners no. 3 and 4 namely Sudarshan Dubey and Ketan Dubey @ Rajnish Kumar Dubey have already been withdrawn earlier and is restricted to petitioners no. 1 and 2 namely Ripusudan Dubey @ Ripusudan Dwivedi and Madhurendra Dubey 5. The petitioners no. 1 and 2 apprehend arrest in connection with Chautarwa PS Case No. 420 of 2020 dated 02.10.2020 instituted under Sections 302 and 201 34 of the Indian 6. The allegation against the petitioners no. 1 and 2 is that they had killed the brother of the informant 7. Learned counsel for the petitioners submitted that from the first part of the FIR it appears that the informant was witness to the crime in which the petitioners no. 1 and 2 have also been named but from the later part it is clear that he was not an eye witness as it is stated that he along with other family members had tried to locate the deceased who had not returned home and only next morning the body was recovered which clearly proves that he was not an eye witness to the incident. Learned counsel submitted that there is long history of enmity litigation between the parties as they have filed cases against each other. It was submitted that the petitioners no. 1 and 2 are accused in two cases Patna High Court CR. MISC. No.78021 dt.29 07 2021 filed by the informant side and one other case but not under grave sections. It was submitted that the deceased was a hardened criminal and was accused in several murder cases and was living in the village of his sister in law and not in his original village and three brothers of the deceased had been killed because of their criminal history either in police encounter or by others and the deceased himself was accused in Ramnagar PS Case No. 1086 which was instituted under Section 302 of the Indian Penal Code in which trial was pending. Learned counsel submitted that there is no eye witness or independent witness to support the prosecution story that the petitioners no. 1 and 2 had killed the deceased. It was submitted that the petitioner no. 1 is the Panch of Gram Kuchery of Salha Bariarwa PS Chautarwa West Champaran and had conducted several panchayati against the informant and the informant’s brother in law namely Yadov Lal Yadav due to which they have been implicated being members of the same family. It was submitted that much prior to the present case the petitioner no. 1 had instituted Chautarwa PS Case No 2818 on 13.12.2018 against the informant and his brother in law as also nephew of the informant alleging snatching of Rs 50 000 at gun point and also mercilessly assaulting him. Further it was submitted that the petitioner no. 1 is also a witness in Patna High Court CR. MISC. No.78021 dt.29 07 2021 Complaint Case No. 656 C of 2017 in which the informant is an accused and the petitioner no. 1 had given evidence against him. It was submitted that there is no eye witness and only on suspicion they have been made accused 8. Learned APP submitted that the brother of the deceased who is the informant has named the petitioners as one of the perpetrators of the crime. However it was not controverted that in the FIR itself it has been stated that there is litigation between the sides 9. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties in the event of arrest or surrender before the Court below within six weeks from today the petitioner no. 1 namely Ripusudan Dubey Ripusudan Dwivedi and petitioner no. 2 namely Madhurendra Dubey 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 1st Bagaha District West Champaran in Chautarwa PS Case No. 4220 subject to the conditions laid down in Section 438(2) of the Code of Criminal Procedure 1973 and further and further that one of the bailors shall be a close relative of the petitioners no. 1 and 2 that the petitioners no. 1 and 2 and the bailors shall execute Patna High Court CR. MISC. No.78021 dt.29 07 2021 bond and give undertaking with regard to good behaviour of the petitioners no. 1 and 2 andthat the petitioners no. 1 and 2 shall co operate with the police prosecution and the Court. 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 10. It shall also be open for the prosecution to bring any violation of the foregoing conditions of bail by the petitioners no 1 and 2 to the notice of the Court concerned which shall take immediate action on the same after giving opportunity of hearing to the petitioners no. 1 and 2. 11. The petition stands disposed off in the (Ahsanuddin Amanullah J

“the requested information is exempt under section 8(1)(j) of the RTI Act…”: SEBI, Part 2.

The respondent, in response to query number 3(2), informed that the requested information is exempt under section 8(1)(d) and 8(1)(e) of the RTI Act as the same is highly confidential in nature and is received by SEBI in fiduciary capacity. However, the respondent informed that as on March 31, 2021, SEBI has made refunds to 16,909 applications involving 45,451 accounts for an aggregate amount of Rs. 128.69 Crore. 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…“. In view of the same, the requested information is exempt under section 8(1)(j) of the RTI Act. Further, it was noted that the in his response, the respondent had invoked the provisions of Section 8(1)(e) of the RTI Act to deny information to the appellant. In this context, it was noted that while disposing of a batch of Writ Petition (Civil) Nos. 8396/2009, 16907/2006, 4788/2008, 9914/2009, 6085/2008, 7304/2007, 7930/2009 and 3607 of 2007, the Hon’ble High Court of Delhi in its Order dated November 30, 2009, held that the ‘person’ referred to in section 8(1)(e) of the RTI Act will include a public authority. It also held that: “In a fiduciary relationship, the principal emphasis is on trust, and reliance, the fiduciary’s superior power and corresponding dependence of the beneficiary on the fiduciary. It requires a dominant position, integrity and responsibility of the fiduciary to act in good faith and for the benefit of and to protect the beneficiary and not oneself”. It was found that SEBI, being a public authority under the RTI Act as well as the regulatory authority for the securities market, gets various documents/information from market participants, etc. and the said information contained in those documents are received in ‘fiduciary relationship’. In view of the aforesaid, it was agreed with the observation of the respondent that the information sought by the appellant is exempt from disclosure under Section 8(1)(e) of the RTI Act. The respondent, in response to the said queries 3(3) and 3(4), informed that the queries are in the nature of seeking clarifications/opinion/guidance and hence cannot be construed as seeking ‘information’ as defined under Section 2(f) of the RTI Act. Accordingly, Mr Baiwar does not find any deficiency in the response.

Appeal No. 43721 BEFORE THE APPELLATE AUTHORITY Under the Right to Information Act 2005) SECURITIES AND EXCHANGE BOARD OF INDIA Appeal No. 43721 Satyendra Kumar Pandit CPIO SEBI Mumbai The appellant had filed an application dated May 31 2021under the Right to Information Act 2005against the said response dated July 01 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. The ground of appeal: The appellant has filed the appeal on the ground that he is not satisfied with the response provided by the respondent. In view of the submissions made by the appellant I am dealing with the queries and the response in the following paragraphs. 3. Query number 3(1) The appellant vide query number 3(1) inter alia sought scheme wise amount of Sahara India Group of Companiesdeposited with SEBI till 31st March 2021. The respondent in response to the query number 3(1) informed that pursuant to various orders passed by the Hon’ble Supreme Court and the attachment Orders dated February 13 2013 passed by SEBI in the matter of Sahara India Real Estate Corporation Limitedand Sahara Housing Investment Corporation Limitedan aggregate amount of Rs. 15 472.60 Crores has been realized by SEBI as on March 31 2021. It was also informed that these amounts along with interest earned on them after providing for making refunds to the bondholders have been deposited in ‘Nationalized Banks’ in terms of the judgment dated August 31 2012 of the Hon’ble Supreme Court. Further the respondent informed that as on March 31 2021 the total amount deposited in ‘Nationalized Banks’ is around Appeal No. 43721 Rs. 23 190.87 Crores. The appellant in his appeal submitted that scheme wise information was not provided. I have perused the query and the response provided thereto. On consideration I find that the respondent has adequately addressed the query by providing the detailed information as per the available records. Further the respondent has categorically stated that an aggregate amount has been realized pursuant to various orders passed by the Hon’ble Supreme Court and the attachment orders passed by SEBI. In view of the same I do not find any deficiency in the response. 6. Query number 3(2) The appellant vide query number 3(2) inter alia sought full details of investors including the refund amount names of the investors) who got refund till March 31 2021. The appellant also stated that the details may be provided in pdf excel format in CD DVD E mailinformed that the requested information is exempt under section 8(1)(d) and 8(1)(e) of the RTI Act as the same is highly confidential in nature and is received by SEBI in fiduciary capacity. However the respondent informed that as on March 31 2021 SEBI has made refunds to 16 909 applications involving 45 451 accounts for an aggregate amount of Rs. 128.69 Crore. 8. On perusal of the query I find that the appellant sought information which may relate to personal informationwith respect to third parties and the disclosure has no relationship to any public activity or interest. Further disclosure of the information may cause unwarranted invasion into the privacy of the individual. In this context the Hon’ble Supreme Court in the matter of Central Public Information Officer Supreme Court of India Vs. Subhash Chandra Agarwal 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...". In view of the same the requested information is exempt under section 8(1)(j) of the RTI Act. Appeal No. 43721 Further I note that the in his response the respondent had invoked the provisions of Section 8(1)(e) of the RTI Act to deny information to the appellant. In this context I note that while disposing of a batch of Writ Petition Nos. 8396 2009 16907 2006 4788 2008 9914 2009 6085 2008 7304 2007 7930 2009 and 36007 the Hon’ble High Court of Delhi in its Order dated November 30 2009 held that the person referred to in section 8(1)(e) of the RTI Act will include a public authority. It also held that: “In a fiduciary relationship the principal emphasis is on trust and reliance the fiduciary’s superior power and corresponding dependence of the beneficiary on the fiduciary. It requires a dominant position integrity and responsibility of the fiduciary to act in good faith and for the benefit of and to protect the beneficiary and not oneself”. I find that SEBI being a public authority under the RTI Act as well as the regulatory authority for the securities market gets various documents information from market participants etc. and the said information contained in those documents are received in fiduciary relationship . In view of the aforesaid I agree with the observation of the respondent that the information sought by the appellant is exempt from disclosure under Section 8(1)(e) of the RTI Act. 10. Notwithstanding the above I note that the respondent has provided information regarding total amount refunded till March 31 2021 number of investors to whom refund has been made and the total number of accounts involved. I find that the query has been adequately addressed. Accordingly I do not find any deficiency in the response. information 11. Query numbers 3(3) and 3(4) The appellant vide said queries inter alia sought the following 3(3). Provide information about the responsible officers of the concerned institution institution organization for social humiliation etc. 3(4). Effect on the country s economy due to unemployment and hardships faced by investors during April 1 020 to May 2021 when the repayment was stopped by SEBI. 12. The respondent in response to the said queries informed that the queries are in the nature of seeking clarifications opinion guidance and hence cannot be construed as seeking ‘information’ as defined under Section 2(f) of the RTI Act. 13. On consideration I agree with the observation of the respondent that the query is in the nature of seeking clarification opinion guidance from the respondent. It is understood that the respondent is not supposed to create information or to interpret information or to furnish clarification to the appellant under the ambit of the RTI Act. I find that the said queries cannot be construed as seeking ‘information’ Appeal No. 43721 as defined under section 2of the RTI Act. In this context I note that the Hon’ble Supreme Court of India in the matter of Central Board of Secondary Education & Anr. vs. Aditya Bandopadhyay & Orshad inter alia held that: A public authority is “...not required to provide ‘advice’ or ‘opinion’ to an applicant nor required to obtain and furnish any ‘opinion’ or ‘advice’ to an applicant. The reference to ‘opinion’ or ‘advice’ in the definition of ‘information’ in section 2(f) of the Act only refers to such material available in the records of the public authority. Many public authorities have as a public relation exercise provided advice guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act”. Further in the matter of Shri Shantaram Walavalkar vs. CPIO SEBI I note that the Hon ble CIC had held that: “... we would also like to observe that under the Right to InformationAct the citizen has the responsibility to specify the exact information he wants he is not supposed to seek any opinion or comments or clarifications or interpretations from the CPIO…”. In view of these observations I find that the respondent cannot be obliged to provide a response to such request for information as made by the appellant through the abovementioned queries. 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 payment of royalty has to be in consonance with Rule 21 of U.P. Minor Mineral (Concession) Rules, 1963: High Court of Uttarakhand.

Even when the Memorandum of Understanding is silent on the point with regard to the payment of royalty, naturally, the payment of royalty would have to be in consonance with Rule 21 of the Rules, 1963. A divisional Bench comprising Hon’ble Chief Justice Sri Raghvendra Singh Chauhan and Justice Alok Kumar Verma, in the matter of M/s Jai Bhawani Stone Crusher Vs. State of Uttarakhand and others (SPECIAL APPEAL NO. 225 OF 2021), dealt with an issue where the appellant Challenged the legality of the order passed by the learned Single Judge while expressing his opinion with regard to the relief and had directed the appellant-petitioner to submit a representation before the respondent no.1. In the present case, the counsel for the appellant had prayed before the Single Judge to issue a writ of certiorari quashing the Office Letter issued by respondent no. 2 to the extent the Royalty which was being demanded on the quantity of mineral as was mentioned in the work order dated 16.01.2020 (Annexure No. 1) which included the quantity which was not actually extracted by the petitioner and also included the period of lockdown in which the mining activity was not done. Also, to issue a writ order or direction in the nature of certiorari quashing the office letter issued by the Government to the extent the quantity of minerals to be extracted which had not been reduced through the total mining area that had been reduced by the respondents after taking into consideration the second demarcation report. Further, also prayed for the issuance of a writ order or direction in the nature of mandamus directing to the respondents to raise the demand of the royalty by treating the Mining area to be 29.265 Hector in place of 51.020 Hector. And lastly prayed for Issuance of writ of mandamus directing respondent no. 2 to grant the additional time for extracting/picking the mineral. The counsel for the appellant submitted that the main grievance of the appellant was that he was asked to pay royalty on the quantity of mineral which the appellant had never lifted and transported. As per the opinion of the Single Judge, the demand made by the respondents was justified, since there was no stipulation in the Memorandum of Understanding (for short “the MoU”) that the appellant-petitioner would be liable to pay royalty only on the actual quantity of River Bed Material (for short “RBM”) extracted. However, the counsel of the appellant submitted that such conclusion was against Rule 21 of the U.P. Minor Mineral (Concession) Rules, 1963 (for short “the Rules, 1963”), since the act clearly stated that royalty is payable in respect of any mineral removed by him. The counsel also submitted that the appellant had submitted the representation for relief no. 5 but such was dismissed by the competent Authority. The court observed that the opinion expressed by the Single Judge was unsustainable as “on the point with regard to the payment of royalty, naturally, the payment of royalty would have to be in consonance with Rule 21 of the Rules, 1963”. Further, the court held that the appellant should be permitted to file a representation vis-à-vis relief Nos.1 to 4 before respondent No.1. And, directed respondent no.1 to decide such representation, after hearing the appellant. Thereby the court allowed the appeal.

IN THE HIGH COURT OF UTTARAKHAND THE HON’BLE THE CHIEF JUSTICE SRI RAGHVENDRA SINGH CHAUHAN AT NAINITAL THE HON’BLE SRI JUSTICE ALOK KUMAR VERMA SPECIAL APPEAL NO. 225 OF 2021 26TH JULY 2021 M s Jai Bhawani Stone Crusher State of Uttarakhand & others Counsel for the Petitioner Mr. Rakesh Thapliyal learned Counsel for the respondents Mr. K.N. Joshi learned Deputy Senior Counsel assisted by Mr. Xitij Kaushik. Advocate General Mr. Sandeep Kothari learned counsel for respondent no.2. The Court made the following: JUDGMENT:(per Hon’ble The Chief Justice Sri Raghvendra Singh Chauhan) Since the sufficient cause has been shown by the appellant for the delay of 150 days in preferring the present Special Appeal the delay is hereby condoned by this Court. Delay Condonation Application is disposed of. The appellant has challenged the legality of the order dated 07.01.2021 whereby the learned Single Judge while expressing his opinion with regard to relief Nos.1 to 4 has directed the appellant petitioner submit a representation before the respondent No.1. The respondent No.1 in turn has been directed to decided the representation ten weeks the date of receipt of Judge: Mr. Rakesh Thapliyal learned Senior Counsel appearing for the appellant submits that the appellant has also made the following prayers before the learned Single “I. Issue a writ order or direction in the nature of certiorari quashing the Office Letter dated 29.10.2020 Annexure 15) issued by respondent no. 2 to the extent whereby the Royalty is being demanded on the quantity of mineral as mentioned in the work order dated 16.01.2020 which includes the quantity which was not actually extracted by the petitioner and also includes the period of lockdown in which the mining activity was not done. II. Issue a writ order or direction in the nature of certiorari quashing the office letter dated 13.10.2020 Annexure 14) issued by the Government to the extent that the quantity of minerals to be extracted has not been reduced through the total mining area has been reduced by respondents after consideration the second demarcation report. III. Issue a writ order or direction in the nature of mandamus directing to the respondents to raise the demand of the royalty by treating the Mining area to be 29.265 Hect in place of 51.020 Hect and on the actual quantity of Mineral extracted by the petitioner keeping in view of section 15(3) of Mines & Minerals Act 1957 and also Rule 21 of UP Miner Mineral Rules IV. Issue a writ order or direction in the nature of mandamus directing the respondent no. 2 i.e. the Managing Director of GMVN to grant the additional time for extracting picking the mineral pursuant to the work order dated 16.01.2020 and the of Association Annexure No. 2) for the period during which due to the lockdown all mining activity were banned in the State i.e.: w.ef 22.03.2020 to 20.05.2020).” One of the main grievances of the appellant was that the appellant was being asked to pay royalty on the quantity of mineral which the appellant had never lifted and transported from the mines. The learned Single Judge has expressed his opinion with regard to the said relief. According to the learned Single Judge since there was no stipulation in the Memorandum of Understanding that the appellant petitioner would be liable to pay royalty only on the actual quantity of River Bed Material extracted therefore the learned Single Judge was of the opinion that the demand made by the respondents by order dated 29.10.2020 was justified. However according to the learned Senior Counsel such a conclusion is patently against Rule 21 of the U.P. Minor MineralRules 1963as adopted by the State of Uttarakhand called “the Uttarakhand Minor Minerals Rules 2001”. For the said act clearly stipulates that royalty is payable in respect of “any mineral removed by him”. Therefore the finding of the learned Single Judge is against the tenor of Rule 21 of the Rules 1963. He further informs this Court that in accordance with the impugned order the appellant petitioner had submitted a representation with regard to relief No.5. The same has been dismissed by the Competent Authority. However the appellant petitioner should be permitted to file his representation with regard to relief Nos.1 to 4 mentioned hereinabove. Mr. Sandeep Kothari the learned counsel for respondent No.2 concedes that indeed the representation filed by the appellant petitioner has been dismissed. Moreover according to him the recovery order has also been passed by the Competent Authority. Rule 21 of the Rules 1963 reads as under: “21. Royalty. The holder of a mining lease granted on or after the commencement of these rules shall pay royalty in respect of any mineral removed by him from the lease area at the rates for the time being specified in the First Schedule to these rules. 1 a) Notwithstanding anything to the contrary contained in Rule 3 royalty should be payable by concerned brick kiln owner or use of ordinary clay on ordinary earth at the rate for the time being specified in First Schedule to these rules: Provided that the State Government shall take fees to be known as Regulating Fees from brick kiln owners in respect of district categorized on the basis of pay on at such rates as may be notified from time to time by 2) The State Government may by notification in the Gazette amend the First Schedule so as to include therein or exclude there from or enhance or reduce the rate of royalty in respect of any mineral with effect from such date as may be specified in the notification: Provided that the State Government shall not enhance the rate of royalty in respect of any mineral for more than once during any period of three years and shall not fix the royalty at the rate of more than 20 per cent of the Pit s mouth value. 3) Where the royalty is to be charged on the Pit’s mouth value of the mineral the State Government may assess such value at the time of the grant of the lease and the rate of royalty will be mentioned in the lease deed. It shall be open to the State Government to reassess not more than once in a year the pit’s mouth value if it considers that an enhancement is necessary. 4) Regulating Fees may be determined by the State Government from time to time on minerals entering the State from other States”. 10. A bare perusal of the provision clearly reveals that royalty would be payable only on the quantity “removed” by the miner. Therefore even if the MoU is silent on the point with regard to the payment of royalty naturally the payment of royalty would have to be in consonance with Rule 21 of the Rules 1963. Therefore the opinion expressed by the learned Single Judge is legally unsustainable. 11. Thus it will be in the interest of justice to permit the appellant petitioner to file a representation vis à vis relief Nos.1 to 4 before the respondent No.1. The respondent No.1 is directed to decide the appellant’s representation after giving an opportunity of personal hearing to the appellant. He is further directed to decide the representation within a period of three weeks from the date of submission of the Till the decision on the representation is taken the respondent No.1 shall not take any coercive steps against the appellant petitioner. With these directions the appeal is allowed. 12. 13. RAGHVENDRA SINGH CHAUHAN C.J.) ALOK KUMAR VERMA J.) Dated: 26th July 2021

Inherent Power under Section 482 does not confer any arbitrary jurisdiction on courts: Bombay High Court

Quashing the FIR by going beyond the averments, to consider the merits of the case even before the investigating agency has embarked upon the legal exercise of collecting evidence will be deemed legally unsustainable since inherent powers under Section 482 does not give, the High Court an opportunity to act according to its whim or caprice. This remarkable judgment was recently passed by the Bombay High Court in the matter of SMT. JAYSHRI W/o Ratan Uchit V THE STATE OF MAHARASHTRA [CRIMINAL APPLICATION NO. 1606 OF 2019] by Honourable Justice B.U.Debadwar and Justice Ravindra V.Ghuge. This is an application under section 482 of the Code of Criminal Procedure, 1973 for quashing FIR filed under section 306 of the Indian Penal Code. The applicant here prayed that the FIR should be quashed on the basis of the report lodged by Shankar Pandurang Uchit. The allegations made in the FIR were that deceased Ratan Pandurang Uchit was the elder brother of the complainant who was an agriculturist. His first wife committed suicide since she was depressed as she was a Cancer patient. Deceased had two children from his first marriage and remarried in 2018. The second wife and the deceased used to have constant quarrels and the deceased was fed up with these constant quarrels and eventually after four months and six days of marriage, he committed suicide leaving behind similar suicide notes wherein the wife was blamed for the suicide. The Court observed that “Practically, in all matters under Section 482 of the Code of Criminal procedure, 1973, the accused approaches the Court on the ground that the First Information Report (FIR), on the face of it, does not disclose ingredients that would constitute a cognizable offence. Thus, the inherent power of the High Court, in its jurisdiction under Section 482, is invoked for seeking the quashing of the FIR.” The Court relied on C.B.I. Vs. Tapan Kumar Singh, (2003) 6 SCC 175 and State of Punjab Vs. Dharam Singh 1987 SCC (Cri.) 621 to assert that the High Court while quashing the FIR should not “go beyond the averments, to consider the merits of the case even before the investigating agency has embarked upon the legal exercise of collecting evidence.” Additionally, the High Court followed the guiding principles laid down by the Honourable Supreme Court in Parbatbhai Bhimsinhbhai Karmur and others vs. the State of Gujarat (2017) 9 SCC 641, which are to be duly considered by the courts in determining whether an FIR could be quashed under Section 482. Thence, in light of this consideration, the Bench stated that “The applicant has not seriously disputed the nature of the death of her husband Ratan and the cause of death is settled. The dispute is only about abetment. It is settled position of law that intention is the concomitant of the abetment.” The Bench observed that “There is nothing on record showing that Ratan Uchit was suffering from any mental disease or chronic ailment. When Ratan was mentally and physically fit, he had no reason to commit suicide, unless harassment meted out by the applicant, was of such nature and extent, which would compel him to commit suicide.” Thus, the HC stated that “at this juncture, inference cannot be drawn that the applicant did not instigate her husband Ratan Uchit to commit suicide or there was no intention behind the quarrels, which she used to pick up with her husband frequently. Only after trial, this material aspect can be decided. Therefore, it is not proper to quash the FIR getting influenced with the submission that the applicant had no intention to drive her husband Ratan Uchit to commit suicide.”

on 06 04 2021 on 15 04 1606.19APPLN.odt1IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD922 CRIMINAL APPLICATION NO. 1606 OF 2019 Smt. Jayshri W o Ratan Uchit @ Jayshri W o subhash Bagul Age : 32 years Occ : Household R o Shivajinagar Karmad Tq. Kannad Dist. Aurangabad At present residing at JadhavwadiAurangabad ..APPLICANT VERSUS 1.The State of MaharashtraThrough Police Inspector KannadPolice Station Tq. Kannad Dist. Aurangabad. 2.Shankar Pandurang UchitAge : 39 years Occ : Agri. R o Shivajinagar Kannad Tq. Kannad Dist. Aurangabad. ..RESPONDENTS...Mr.Suvidh S. Kulkarni Advocate for theapplicant. Mr.S.J. Salgare APP for respondent no.1 State. Mr.Yogesh Bolkar Advocate for respondent no.2. … CORAM : RAVINDRA V.GHUGE AND B.U.DEBADWAR JJ. RESERVED ON : 24th March 2021 PRONOUNCED ON : 06th April 2021JUDGMENTfor quashing FIR. 2.The applicant prays to quash the FIRNo.0032 2019 registered on the basis of thereport lodged by Shankar Pandurang Uchit on07.02.2019 under section 306 of the IndianPenal CodeatKannad City Police Station Dist.Aurangabad. 3.Heard Mr.Suvidh Kulkarni thelearned Advocate for the applicant Mr.YogeshBolkar the learned Advocate for respondentNo.2 and Mr.S.J. Salgare the learnedAdditional Public Prosecutor for respondentno.1 State. 4.The allegations averments made inthe FIR in short are that deceased RatanPandurang Uchit was elder brother of firstinformant Shankar Pandurang Uchit. He wasagriculturist by profession. His first wifewas a Cancer patient. She had committedsuicide getting depressed with Cancer ofwhich she was suffering. Deceased Ratan hastwo children born from the first wife. Afterthe death of first wife Ratan performedsecond marriage with applicant on 11.09.2018 as per Hindu rites and customs prevailing in on 06 04 2021 on 15 04 1606.19APPLN.odt3their community at Mayur Park area ofAurangabad. The first husband of theapplicant had died prior to her marriage withdeceased Ratan Uchit. After marriage theapplicant used to pick up quarrel withdeceased Ratan Uchit frequently on pettyreasons. Ratan Uchit used to inform about thesame to his younger brother i.e. firstinformant Shankar Uchit. On 07.02.2019 atabout 8.30 a.m. when Shankar Uchit firstinformant had been to his field situatedwithin the limits of village Makranpur so asto bring milk at that time his cousinbrother Pandit Uchit informed him that RatanUchit has committed suicide by hanginghimself to the Neem Tree standing on thedyke of their field. Upon knowing the same Shankar Uchit rushed to the aforesaid spotand saw his brother Ratan Uchit hanging tothe tree. In pursuance of the informationreceived the Police reached there removedthe dead body of Ratan Uchit from the NeemTree to which he was hanging and preparedthe inquest panchanama. During the course ofdrawing inquest panchanama along with a CellPhone one suicide note was found in thepocket of pant worn by deceased Ratan. Fromthe contents of that suicide note Shankar on 06 04 2021 on 15 04 1606.19APPLN.odt4Uchit first informant has realized that hisbrother Ratan Uchit has committed suicide bygetting fed up with quarrels raised by theapplicant constantly. After performingfuneral and last rituals on the dead body ofRatan Uchit one more suicide note leftbehind by him was found kept near a SpeedMeter of motorcycle bearing no.MH 20 DL 1726.The recitals of the said suicide note wereidentical with the earlier suicide note foundin the pocket of pant of Ratan Uchit.According to Shankar Uchit first informant his brother Ratan Uchit has committed suicideby getting fed up with the quarrels beingraised by the applicant frequently for pettyreasons. Therefore the applicant isresponsible for the suicide death of hisbrother Ratan Uchit. 5.Mr.Suvidh Kulkarni the learnedAdvocate while taking us through the FIR annexed to the application vehemently arguedthat only after four months and six days ofmarriage with applicant Ratan Uchit hascommitted suicide. FIR sought to be quashedhas been registered for the offence ofabetment to commit suicide punishable undersection 306 of the I.P.C. The allegations on 06 04 2021 on 15 04 1606.19APPLN.odt5about abetment made in the FIR are very muchvague in nature. Details of alleged quarrelsdo not find place in the FIR In order tobring home guilt under section 306 of theI.P.C. it is necessary to prove theabetment. Section 107 of the I.P.C. defines`Abetment’. On the basis of the allegationsmade in FIR it cannot be gathered thateither the applicant instigated orintentionally aided deceased Ratan Uchit forcommission of suicide. Allegations made inFIR that the applicant used to pick up pettyquarrels with deceased Ratan Uchitfrequently in any case do not satisfy thedefinition of abetment. When there are noallegations made in the FIR from which it canbe gathered that the applicant intentionallyinstigated her husband Ratan Uchit to commitsuicide and in pursuance of the saidinstigation Ratan Uchit her husbandcommitted suicide there is no propriety indragging the applicant to face the trial which would ultimately result into hisacquittal. 6.In support of his submissions Mr.Kulkarni learned Advocate has placedreliance on the judgment of Coordinate Bench on 06 04 2021 on 15 04 1606.19APPLN.odt6of this Court delivered in the case of Dilipand Ors. Vs. State of Maharashtra and Ors.{2016 All MR4328}.7.Per contra Mr.Yogesh Bolkar thelearned Advocate strenuously argued thatRatan Uchit had committed suicide only afterfour months and six days of the marriageperformed with the applicant. The applicantis a quarrelsome woman. In a short span offour months and few days of the marriage shehad harassed her husband Ratan Uchitmentally to a great extent by picking upquarrels with him frequently for pettyreasons. The applicant has not seriouslydisputed genuineness of suicide notes leftbehind by Ratan Uchit. Both the suicide notesare identical. The suicide notes and recitalsof the FIR lodged by the real younger brotherof Ratan Uchit show that harassment by theapplicant was to such an extent that deceasedRatan Uchit was left with no otheralternative but to end his life. Nothing onrecord indicating that Ratan Uchit wassuffering from mental disease. The applicantalso does not say so. Ratan Uchit wasmentally and physically fit would not havecommitted suicide unless harassment on 06 04 2021 on 15 04 1606.19APPLN.odt7ill treatment meted out by the deceased wasof such a gravity which led him to commitsuicide. According to Mr.Yogesh Bolkar learned Advocate the recitals of FIR are prima facie quite sufficient to make out thecase under section 306 of the I.P.C. againstthe applicant. Therefore the application forquashing FIR is liable to be dismissed. 8.Mr.S.J. Salgare the learnedAdditional Public Prosecutor for respondentno.1 State submitted that having regard tothe allegations made in the FIR and recitalsof both the suicide notes left behind byRatan Uchit it cannot be said that the FIRis wholly imaginary. According to Mr.Salgare the investigation is almost completed andthus accordingly prayed for dismissal ofapplication. 9.Practically in all matters underSection 482 of the Code of Criminalprocedure 1973 the accused approaches theCourt on the ground that the FirstInformation Reporton the face of it does not disclose ingredients that wouldconstitute a cognizable offence. Thus theinherent power of the High Court in it’s on 06 04 2021 on 15 04 1606.19APPLN.odt8jurisdiction under Section 482 is invokedfor seeking the quashing of the FIR. 10.In C.B.I. Vs. Tapan Kumar Singh6 SCC 175 : AIR 2003 SC 4140 theHonourable supreme court has held inparagraph 22 that “The law does not requirethe mentioning of all the ingredients of theoffence in the FIR. It is only aftercompletion of the investigation that it maybe possible to say whether any offence ismade out on the basis of the evidencecollected by the investigating agency.” It isobserved that an FIR is not an encyclopediawhich must disclose all the facts and detailsrelating to the offence alleged to have beencommitted. It requires no debate that an FIRis merely a report by the informant about thecommission of a cognizable offence and itcannot be ruled out that minute details maynot be mentioned. It cannot be ignored thatan FIR pertains to an offence which isalleged to have been committed and theinformant in a disturbed state of mind andshaken on account of a serious offencecommitted approaches a police station forrecording an FIR. on 06 04 2021 on 15 04 1606.19APPLN.odt911.In the State of Punjab Vs. DharamSingh 621 : 1987 Supp. SCC89 the Honourable Supreme Court held thatthe High Court had erred in quashing the FIRby going beyond the averments to consdierthe merits of the case even before theinvestigating agency has embarked upon thelegal exercise of collecting evidence.12.In Kurukshetra University Vs. Stateof Haryana4 SCC 451 : AIR 1977 SCC2229( a Three Judges bench) the HonourableSupreme Court has observed thus: “It surprises in the extremethat the High Court thought thatin the exercise of its inherentpowers under Section 482 CriminalProcedure Code it could quash andFIR. The Police had not evencommenced investigation into thecomplaint filed by the warden ofthe University and no proceedingat all was pending in any Court inpursuance of the FIR. It ought tobe realized that inherent powersdo not confer any arbitraryjurisdiction on the High Court toact according to its whim orcaprice.” 13.In Geeta Mehrotra and another Vs. on 06 04 2021 on 15 04 1606.19APPLN.odt10State of uttar Pradesh and another 10SCC 741 the Honourable Supreme Court hasheld that in the absence of any specificallegation and an FIR prima facie indicating no case against the co accused the Court would have the power to quash anFIR.14.In Parbatbhai Aahir alias ParbatbhaiBhimsinhbhai Karmur and others vs. State ofGujarat and another 9 SCC 641 theHonourable supreme Court has laid down theguiding principles to be considered indetermining whether an FIR could be quashed as under: “(1) Section 482 CrPC preserves theinherent powers of the High Courtto prevent an abuse of the processof any court or to secure the endsof justice. The provision does notconfer new powers. It onlyrecognises and preserves powerswhich inhere in the High Court.The invocation of thejurisdiction of the High Court toquash a first information report ora criminal proceeding on the groundthat a settlement has been arrivedat between the offender and thevictim is not the same as theinvocation of jursidiction for thepurpose of compounding an offence. on 06 04 2021 on 15 04 1606.19APPLN.odt11While compounding an offence thepower of the court is governed bythe provisions of Section 320 CrPC.The power to quash under Section482 is attracted even if theoffence is non compoundable.In forming an opinionwhether a criminal proceeding orcomplaint should be quashed inexercise of its jurisdiction underSection 482 the High Court mustevaluate whether the ends ofjustice would justify the exerciseof the inherent power.While the inherent power ofthe High Court has a wide ambit andplenitude it has to be exercised(i) to secure the ends of justice orto prevent an abuse of theprocess of any court.In the exercise of thepower under Section 482 and whiledealing with a plea that thedispute has been settled the HighCourt must have due regard to thenature and gravity of the offence.Heinous and serious offencesinvolving mental depravity oroffences such as murder rape and on 06 04 2021 on 15 04 1606.19APPLN.odt12dacoity cannot appropriately bequashed though the victim or thefamily of the victim have settledthe dispute. Such offences are truly speaking not private innature but have a serious impactupon society. The decision tocontinue with the trial in suchcases is founded on the overridingelement of public interest inpunishing persons for seriousoffences.In such a case the HighCourt may quash the criminalproceeding if in view of thecompromise between the disputants the possibility of a conviction isremote and the continuation of acriminal proceeding would causeoppression and prejudice andThere is yet an exceptionto the principle set out in on 06 04 2021 on 15 04 1606.19APPLN.odt13Propositionsandabove Economic offences involving thefinancial and economic well being ofthe State have implications whichlie beyond the domain of a meredispute between private disputants.The High Court would be justified indeclining to quash where theoffender is involved in an activityakin to a financial or economicfraud or misdemeanour. Theconsequences of the act complainedof upon the financial or economicsystem will weigh in the balance.” 15.In the light of the aforesaidsubmissions made by the learned Advocates ofboth the sides and the crystalised positionof law for invocation of powers under section482 of the Cr.P.C. we have carefully gonethrough the FIR. It is pertinent to note thatthe marriage between Ratan Uchit and theapplicant was the second marriage for both ofthem. It is evident from the record thatRatan Uchit has died due to hanging on thetree only after four months and six days ofthe marriage with the applicant. Theapplicant has not seriously disputed thenature of death of her husband Ratan. Thedispute is only about abetment. It is settledposition of law that intention is theconcomitant of the abetment. Merely for the on 06 04 2021 on 15 04 1606.19APPLN.odt14reason that details of quarrels alleged tohave been raised by the applicant with herhusband Ratan Uchit have not been given inthe FIR an inference cannot be drawn thatthe alleged quarrels had no nexus with thesuicide death of Ratan Uchit. The allegationsabout quarrels being picked up by theapplicant with deceased Ratan Uchitfrequently are supported by two suicidenotes left behind by deceased Ratan Uchit.There is nothing on record showing that RatanUchit was suffering from any mental diseaseor chronic ailment. When Ratan was mentallyand physically fit he had no reason tocommit suicide unless harassment meted outby the applicant was of such nature andextent which would compel him to commitsuicide. 16.In Dilip and otherstheCoordinate Bench of this Court afterconsidering the various judgments of theHon’ble Supreme Court has held as under : “unless there is clear mens rea tocommit an offence or active act ordirect act which led the deceased tocommit suicide seeing no option or the on 06 04 2021 on 15 04 1606.19APPLN.odt15act intending to push the deceased intosuch a position the trial against theaccused under Section 306 of the IndianPenal Code in our considered view would be an abuse of process of law.”17.In Dilip and othersaJudicial Officer had committed suicide on histransfer to Taluka place from the districthead quarters by his superior JudicialOfficer. Except the grievance of transfer the deceased Judicial officer had no othergrievance against his superior JudicialOfficer. In suicide note Junior JudicialOfficer who committed suicide has expressedanguish against the Senior Judicial Officer.Having regard to all these facts theCoordinate Bench of this Court had quashedthe FIR. 18.The facts of the case at hand arealtogether different. Ratan Uchit wasmentally and physically fit person hascommitted suicide only within four months andsix days after the marriage with theapplicant and it is alleged in the FIR andtwo suicide notes left behind by deceasedRatan Uchit that the applicant used to pick on 06 04 2021 on 15 04 1606.19APPLN.odt16up quarrels with him frequently. Therefore he was fed up and committed suicide. In viewof these material allegations made in the FIRand two suicide notes left behind by deceasedRatan Uchit at this juncture inferencecannot be drawn that the applicant did notinstigate her husband Ratan Uchit to commitsuicide or there was no intention behind thequarrels which she used to pick up with herhusband frequently. Only after trial thismaterial aspect can be decided. Therefore itis not proper to quash the FIR gettinginfluenced with the submission that theapplicant had no intention to drive herhusband Ratan Uchit to commit suicide. 19.In view of above we are notinclined to quash the FIR. Accordingly theapplication is rejected.(RAVINDRA V. GHUGE J.)SGA

Dr. Surajmani Stella Kujur V/s Durga Charan Hansdah & Anr.

It is of the essence of special usage modifying the ordinary law of succession that they should be ancient and invariable; they should be established to be so by clear and unambiguous evidence. [Case Brief] Dr. Surajmani Stella Kujur vs Durga Charan Hansdah & Anr Case Name- Dr. Surajmani Stella Kujur vs Durga Charan Hansdah & Anr Case number– Appeal (crl.) 186 of 200 with Special Leave Petition (crl.) 2436 of 2000 Court– Supreme Court of India Bench– K.T. Thomas, J., R.P. Sethi, J. Decided on– 14/02/2001 Relevant Acts– The Constitution of India, 1949, The Hindu Marriage Act, 1955, The Constitution (Scheduled Tribes) Order (Amendment) Act, 2003, The General Clauses Act. PROCEDURAL HISTORY AND BRIEF FACTS In this appeal the parties are admittedly tribals, the appellant being an Oraon and the respondent a Santhal.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 Hindu Marriage Act, 1955, are thus governed only by their Santhal Customs and usage”.In this case, the appellant filed a complaint in the Court of Chief Metropolitan Magistrate, New Delhi stating therein that her marriage was solemnized with the respondent in Delhi “according to Hindu rites and customs”.It is submitted that as the respondent has solemnized 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 offense punishable under Section 494of the Indian Penal Code, 1860. ISSUES BEFORE THE HON’BLE SUPREME COURT OF INDIA Who is a “Hindu” for the purposes of the applicability of the Hindu Marriage Act, 1955? RATIO DECIDENDI (RATIO OF THE COURT) The court observed that 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, [14 Moo. Ind. App. 570 at p.585] where it was pronounced that: “It is of the essence of special usage modifying the ordinary law of succession that they should be ancient and invariable; 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 recognition depends.”This Court in Mirza Raja Pushpavati Vijayaram Gajapathi Raj & Ors. v. Sri Pushavathi Visweswar Gajapathiraj Rajkumar of Vizianagram & Ors. [AIR 1964 SC 118] again, it was reiterated that “the importance of the custom in relation to the applicability of the Act has been acknowledged by the Legislature by incorporating Section 29 of the Hindu Marriage Act, 1955saving the validity of a marriage solemnized prior to the commencement of the Act which may otherwise be invalid after passing of the Act”The Hon’ble Court observed the trial court holding that, “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 Court enunciated that it cannot be adjudicated upon such a proclaimed right of the appellant, where the counsel appearing for the appellant submitted that even if the second marriage was not void for the purposes of attracting the applicability of Section 494 of the Indian Penal Code, 1860 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.The court observed 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 of the Indian Penal Code, 1860.The Hon’ble Court has not found any merits in the appeal so enunciated which was dismissed accordingly, and thus the appellant was at liberty with respect to the rights so available by way of civil proceedings in a competent court of jurisdiction and then such of the proceedings if initiated would be decided then upon its merit keeping in consonance with the pleadings and proofs and not being influenced by any of the observations made by the trial magistrate or the High Court. DECISION HELD BY THE HON’BLE SUPREME COURT The court found  no merit in this appeal which is accordingly dismissed.  

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

The strict proof of marriage is not a requirement in the case under Section 125 of the Cr. P.C: Chattisgarh High Court

The parties had lived as a wife and spouse, enough to draw their marriage suppositions. It is found that the claimant and the respondent have lived together as a husband and wife for some time, based on the submissions and the present facts. It is undisputed now. The applicant’s only ground of dispute is that he was not legal when he married the respondent. The judgement was passed by the High Court of Chattisgarh in the case of Meghraj Sahu v. Smt. Lata Bai [CRR No. 490 of 2020] by Single Bench consisting of Hon’ble Justice Rajendra Chandra Singh Saman. This criminal revision petition has been brought against the order Passed in M.J.C, granting monthly maintenance of Rs.3,000/- to the respondent. Learned Counsel for the applicant submitted that the impugned order is erroneous and illegal. The respondent has failed to prove that she was the legally wedded wife of this applicant. Learned Family Court has erroneously held that although the respondent is not a legally wedded wife of the applicant even then, she was entitled to maintenance. Counsel further referred to Badshah vs. Urmila Badshah Godse and Another, wherein it was submitted that “it is not a case in which the respondent was ignorant about the previous marriage of the applicant, therefore, she cannot be deemed as the legally wedded wife of the applicant.” Learned counsel for the respondent opposes the submissions so made and submits, that the respondent has proved her case to show her entitlement for maintenance under Section 125 of the Cr.P.C. After the dispute arose between the applicant and the respondent, a compromise had taken place between them. He further referred to Smt. Motim Bai Borkar vs. Arjun Singh Borkar, wherein it was held by this Court that “the respondent had married the lady lived together as husband and wife and cohabited with her, now cannot be permitted to turn around and say that the petitioner is not his legally wedded wife.”

1 HIGH COURT OF CHHATTISGARH BILASPUR CRR No. 490 of 2020 Reserved on 12.04.2021 Delivered on 19.05.2021 Meghraj Sahu S o. Brijlal Sahu aged about 50 years Alleged Occupation Service 1 SCC 530 in which it has been held that a woman marrying a man who is already married and his wife is living is not entitled under Section 125 of the Cr.P.C. as such marriage is void ab initio. It is submitted by counsel for the applicant that it has been similarly held in the cases of Savitaben Somabhai Bhatiya vs. State of Gujarat and Others reported in 3 SCC 636 and D Velusamy vs. D. Patchaiammal reported in 10 SCC 469 that for the purpose of Section 125 of the Cr.P.C. the wife must be legally wedded wife. It is further submitted that the impugned order is unsustainable therefore the revision petition be allowed and the impugned order be set aside 3 4. Learned counsel appearing for the respondent opposes the submissions so made and submits that the respondent has proved her case to show her entitlement for maintenance under Section 125 of the Cr.P.C. After the dispute arose between the applicant and the respondent a compromise had taken place between them. Copy of that compromise deed Ex.P 7 C has been produced in the evidence which shows that the applicant admitted that the respondent is his wife. The applicant has made admissions in his cross examination that name of the respondent is mentioned in the ration card Ex.P 1 C in the post office saving account Ex.P 2 C in the Dena Bank Saving Account Ex.P 3 C and in the Aadhar Card Ex.P 4 C which shows the applicant as her husband. It is also submitted that in the case of Smt. Motim Bai Borkar vs. Arjun Singh Borkar reported in 2017(2) C.G.L.J.330 it was held by this Court that the respondent husband having married the lady lived together as husband and wife and cohabited with her now cannot be permitted to turn around and say that the petitioner is not his legally wedded wife. This ratio has been laid down in the judgment of Supreme Court in the case of Badshah vs. Urmila Badshah Godse and Anotherand also followed in the judgment of this High Court in the case of Smt. Teras Dongare vs. Avinash Dongare in CRR No. 3419 decided on 10.2.2021 therefore on the basis of this ratio of law the respondent has the entitlement for grant of maintenance Hence the petition is without any substance which may be dismissed In reply it is submitted by counsel for the applicant that the case laws cited by the respondent side are not applicable in this case. It is very much clear that the respondent was already married and her husband was living when she married to the applicant whose previous wife was 4 also living. Therefore it is a clear case of invalid marriage because of which the respondent has no entitlement 6. Heard counsel for both the parties and perused the documents present 7. Learned Family Court has drawn a conclusion that the respondent is wife of the applicant on the basis of the ratio laid down by the Madhya Pradesh High Court in the case of Sumitra Bai vs. Bheekam reported in AIR 1985 SC 765 and on the judgment of Supreme Court in the case of Dwarika Prasad Satpathy vs. Bidyut Prava Dixit and Another reported in7 SCC 675 in which it has held that the strict proof of marriage is not a requirement in the case under Section 125 of the Cr.P.C. The fact established that the parties were living as husband and wife is sufficient to draw presumption about their marriage. On the basis of the submissions made and the evidence present it is found that now it is undisputed that the applicant and the respondent had resided together as husband and wife for sometime. The only ground of contest of the applicant is that his marriage with the respondent was not lawful The admission of respondent Smt. Lata Bai in her cross examination about her previous marriage with Bisahu Ram and that she has not legally divorced him has been further clarified that she has obtained customary divorce from her previous husband. Halif Khan AW 2) has stated in his cross examination that he had no knowledge of previous marriage of the respondent. Hemlal Sahuhas stated that he was present when the marriage of the applicant with the respondent was performed. He has also stated about her ignorance regarding the previous marriage of the respondent 8. Applicant Meghraj Sahu has stated in his examination in chief about the previous marriage of the respondent and also about his marriage 5 with Devki Bai which was subsisting. Although he has made denial to all the suggestions put to him in cross examination but he has admitted about the presence of name of the respondent in ration card Ex. P 1 C in the saving account of the post office Ex.P 2 C in the Dena Bank saving account Ex.P 3 C and in the Aadhar Card Ex.P 4 C which shows the name of the respondent as his wife regarding which he was unable to give any explanation. On the basis of this oral statement of the applicant and his witness it is clear that the applicant was previously married and in support of the same one document Ex.D 1 C has been exhibited which is a copy of ration card mentions Devki Bai as wife of this applicant. 9. The applicant had filed a reply to the application under Section 125 of the Cr.P.C. in which he has mentioned about his marriage with Devki Bai in the year 1992 93 denying the statement in the application of the respondent. In the evidence of Lata Bairespondent has not made a single statement in her examination in chief to deny the statement of the applicant regarding his previous marriage which was subsisting however in her cross examination she has admitted that the applicant was married to one Devki Bai and he had two children from her. There is no statement to deny that the marriage of the applicant with Devki Bai was continuing. In the case of Badshah vs. Urmila Badshah Godse and Another observed in paragraphs 13.1 and 13.2 which is as follows ‘13.1. Firstly in Chanmuniya case the parties had been living together for a long time and on that basis question arose as to whether there would be a presumption of marriage between the two because of the said reason thus giving rise to claim of maintenance under Section 125 Cr.P.C. by interpreting the term “wife” widely. The Court 6 has impressed that if man and woman have been living together for a long time even without a valid marriage as in that case term of valid marriage entitling such a woman to maintenance should be drawn and a woman in such a case should be entitled to maintain application under Section 125 Cr.P.C. On the other hand in the present case respondent No.1 has been able to prove by cogent and strong evidence that the petitioner and respondent No.1 had been married each other 13.2. Secondly as already discussed above when the marriage between respondent No.1 and petitioner was solemnized the petitioner had kept the respondent No.1 in dark about her first marriage. A false representation was given to respondent No.1 that he was single and was competent to enter into marital tie with respondent No.1. In such circumstances can the petitioner be allowed to take advantage of his own wrong and turn around to say that respondents are not entitled to maintenance by filing the petition under Section 125 Cr.P.C. as respondent No.1 is not “legally wedded wife” of the petitioner Our answer is in the negative. We are of the view that at least for the purpose of Section 125 Cr.P.C. respondent No.1 would be treated as the wife of the petitioner going by the spirit of the two judgments we have reproduced above. For this reason we are of the opinion that the judgments of this Court in Adhav and Savitaben cases would apply only in those circumstances where a woman married a man with full knowledge of the first subsisting marriage. In such cases she should know that second marriage with such a person is impermissible and there is an embargo under the Hindu Marriage Act and therefore she has to suffer the consequences thereof. The said judgment would not apply to those cases where a man marries second time by keeping that lady in dark about the first surviving marriage That is the only way two sets of judgments can be reconciled and harmonized.’ 7 10. In the case of Savitaben Somabhai Bhatiya vs. State of Gujarat and Othersit was held that even if the wife makes a plea that she was not informed about the previous marriage of her husband that shall be of no avail. In the case of Smt. Motim Bai Borkar vs. Arjun Singh Borkarthis High Court has held in paragraph 5 is as follows ‘5. Having held so I am clearly of the view that Arjun Singh the second husband cannot escape from his liability to maintain his wife. The reason is that he married Motim Bai knowing fully well that she had a female child from earlier husband and at the time when he got married he did not ask to produce a decree of divorce and at that time he was willing to marry her probably on oral submission that she had obtained a divorce. It is not a case where the wife had hoodwinked the husband.’ 11. After appreciating the evidence and on the basis of the legal precedents cited the facts in this case reveal that the applicant had knowledge that the respondent was already married to one Bisahu Ram Sahu regarding which the respondent claims that she has obtained divorce in customary manner. This also is a fact that the applicant was married to one Devki Bai in the year 1992 93 but there is no evidence present to show that the previous marriage of the applicant was continuing and subsisting when the marriage of the applicant with the respondent had in the year 2009. The witnesses of the respondent have stated about performance of marriage of the respondent with the applicant and also about the social meeting which was held on account of dispute between the applicant and the respondent in which the applicant had admitted that the respondent is his wife and he had taken the responsibility for the respondent in compromise. The applicant side has not brought any evidence or examined the previous wife of the applicant to show that the marriage of the applicant with his previous wife was continuing. In 8 the case of Badshah vs. Urmila Badshah Godse and Another supra) the Supreme Court has held in paragraphs 13.3 and 20 which is as follows ‘13.3. Thirdly in such cases purposive interpretation needs to be given to the provisions of Section 125 Cr.P.C. While dealing with the application of a destitute wife or hapless children or parents under this provision the Court is dealing with the marginalized sections of the society. The purpose is to achieve “social justice” which is the Constitutional vision enshrined in the Preamble of the Constitution of India. The Preamble to the Constitution of India clearly signals that we have chosen the democratic path under the rule of law to achieve the goal of securing for all its citizens justice liberty equality and fraternity. It specifically highlights achieving their social justice Therefore it becomes the bounden duty of the Courts to advance the cause of the social justice. While giving interpretation to a particular provision the Court is supposed to bridge the gap between the law and society. 20. Thus while interpreting a statute the court may not only take into consideration the purpose for which the statute was enacted but also the mischief it seeks to suppress. It is this mischief rule first propounded in Heydon’s Case which became the historical source of purposive interpretation. The court would also invoke the legal maxim construction of ut res magis valeat quam pereat in such cases i.e. where alternative constructions are possible the Court must give effect to that which will be responsible for the smooth working of the system for which the statute has been enacted rather than one which will put a road block in its way. If the choice is between two interpretations the narrower of which would fail to achieve the manifest purpose of the legislation should be avoided We should avoid a construction which would reduce the legislation to futility and should accept the bolder construction based on the view that Parliament would 9 legislate only for the purpose of bringing about an effective result. If this interpretation is not accepted it would amount to giving a premium to the husband for defrauding the wife Therefore at least for the purpose of claiming maintenance under Section 125 Cr.P.C. such a woman is to be treated as the legally wedded wife.’ 12. After taking into consideration all the facts and circumstances the evidence of the case and the position of law as settled the finding of the learned Family Court that the respondent has entitlement in grant of maintenance cannot be said to be erroneous in any respect. Hence I am of this view that this revision petition is devoid of any substance and the impugned order does not call for any interference 13. Accordingly the revision petition is dismissed (Rajendra Chandra Singh Samant Judge