Datasets:

d0r1h

/

ILC

like 0

A Magistrate cannot order any police officer conduct the investigation : Jammu and Kashmir High Court

Only the Government in exercise of their executive powers can authorize any superior police officer to investigate a case and such direction can be issued by the higher officer to his subordinate officer in the police department. This was held in the judgment passed by a single judge bench comprising of HON’BLE MRS. JUSTICE SINDHU SHARMA, in the matter Tanveer Ahmed Zargar and another V. Surinder Kumar and another [IA No. 01/2018], dealt with an issue where the petitioner filed a petition seeking to quash of the complaint titled, ‘Surinder Kumar V/s Tanveer Ahmed Zargar and others’ and the order, passed by the learned Chief Judicial Magistrate. Grounds of challenge alleged that: (i) The order is illegal, arbitrary and against the law; (ii) The demarcation report which is subject matter of challenge and bone of contention in the complaint has been so carried as per the order of the Sub-Judge, Kishtwar passed in Civil Suit titled, ‘Ravi Kumar V. Jagdish Raj and others’, the Chief Judicial Magistrate, Kishtwar, who has directed the Senior Superintendent of Police, Crime Branch, Jammu to investigate the complaint. (iii) That for investigation of the case, registration of the FIR is necessary but there is no commission of offence disclosed in the complaint except para 8 which shows “that accused have committed offence under sections 109, 167, 504 and 506 RPC as such are required to be dealt under law”.No offence is made out against petitioner No. 1, because what abuse was hurried at respondents is not disclosed. These are some of the grounds of challenge. Counsel for the petitioners argued that there is no application of mind by the Trial Court in the absence of offence, section 156(3) Cr. PC is not applicable. He has also argued that the Trial Court has simply translated the complaint and not taken into account the said fact before directing the Senior Superintendent of Police, Crime Branch, Jammu to investigate the matter, as such, the said order is illegal. Counsel for the respondent-Surinder Kumar has argued that petition is not maintainable in view of the law laid down by Hon’ble the Supreme Court in ‘HDFC Securities Ltd. Vs State of Maharashtra and another’. After hearing both sides, the Hon’ble High Court of Jammu and Kashmir allowed the petition and held that the order impugned is illegal being without jurisdiction in view of the law laid down by Hon’ble the Supreme Court in ‘Kolakkadan Mossa Haji V. State of Kerala and others. It also held that the order of Chief Judicial Magistrate, directing the SSP, Crime Branch, Jammu to investigate the case under section 156(3) Cr.P.C is without jurisdiction and, as such, illegal and it is accordingly quashed. Click here to view judgement

HIGH COURT OF JAMMU AND KASHMIR AT JAMMU CRMC No. 134 2018 IA No. 01 2018 Pronounced on: 23rd.06.2020 …. Petitioner(s) Through: Mr. F. S. Butt Advocate Tanveer Ahmed Zargar and another V s Surinder Kumar and another Through: Mr. Koshal Parihar Advocate Coram : HON’BLE MRS. JUSTICE SINDHU SHARMA JUDGE Petitioners seek quashing of the complaint bearing File No. 71 Complaint dated 08.11.2017 titled ‘Surinder Kumar V s Tanveer Ahmed Zargar and others’ and the order dated 08.11.2017 passed by the learned Chief Judicial Magistrate Kishtwar directing the Senior Superintendent of Police Crime Branch Jammu to investigate the case under section 156(3) Cr.PC. The operative portion of the order reads as under: “.............This being so SSP Crime Brach Jammu is directed to investigate the case u s 156(3) Cr. PC. Copy of this order alongwith the copy of the complaint and the documents annexed with the complaint shall be forwarded to SSP Crime Branch Jammu through I C C.P.O for compliance. Put up on 19 12 2017”. It is not necessary to refer to all the grounds of challenge except ground No. 6 which is quite elaborate and comprehensive because it alleges that: The order is illegal arbitrary and against the law ii) The demarcation report which is subject matter of challenge and bone of contention in the complaint has been so carried as per the order of 2 CRMC No. 134 2018 the Sub Judge Kishtwar dated 04.08.2017 passed in Civil Suit titled ‘Ravi Kumar V. Jagdish Raj and others’ the Chief Judicial Magistrate Kishtwar who has directed the Senior Superintendent of Police Crime Branch Jammu to investigate the complaint. iii) That for investigation of the case registration of the FIR is necessary but there is no commission of offence disclosed in the complaint except para 8 which shows “that accused have committed offence under sections 109 167 504 and 506 RPC as such are required to be dealt under law” 03. Barring this statement there is nothing on the file that ingredients of the offence mentioned have not been disclosed much less the ingredients and how and against whom these offences are made out. 04. No offence is made out against petitioner No. 1 because what abuse was hurried at respondents is not disclosed. These are some of the grounds of challenge. Learned counsel for the petitioners has argued that there is no application of mind by the Trial Court in the absence of offence section 156(3) Cr. PC is not applicable. He has also argued that the Trial Court has simply translated the complaint and not taken into account the said fact before directing the Senior Superintendent of Police Crime Branch Jammu to investigate the matter as such the said order is illegal. 06. Learned counsel for the respondent Surinder Kumar has argued that petition is not maintainable in view of the law laid down by Hon’ble the Supreme Court in ‘HDFC Securities Ltd. Vs State of Maharashtra and another’ 2017(1) SCC 640. 07. After hearing the learned counsel for the parties I am of the opinion that the order impugned is illegal being without jurisdiction in view of the law laid 3 CRMC No. 134 2018 down by Hon’ble the Supreme Court in ‘Kolakkadan Mossa Haji V. State of Kerala and others’ 3 SCC 340 holding that: “................In our view the High Court has rightly held that the Magistrate was not competent to give such direction to cause inquiry by the Inspector General of Police while exercising powers under sub section 156(3) of the Code of Criminal Procedure because sub section of Section 156 indicates that the Magistrate may order such investigation as mentioned in sub section of Section 156 of the Code of Criminal Procedure. Sub sectionof Section 156 of the Code of Criminal Procedure contemplates that any officer in charge of a police station may without the order of a Magistrate investigate any cognizable case which a court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. Sub sectionof Section 156 in our view only indicates that a police officer in charge of the police station within the local limits of the jurisdiction of the Magistrate may cause investigation without any direction from the Magistrate and the Magistrate under sub sectionof Section 156 may direct such police officer to cause inquiry. Such power of the Magistrate under sub sectiondoes not authorize the Magistrate to give direction to any other superior officer to cause inquiry even though under Section 36 of the Code of Criminal Procedure a superior police officer can make investigation in respect of the complaint where an officer in charge of the police station may make inquiry. Therefore no interference is called for in this appeal and the same is disposed of ..” 08. The judgment has been relied by Hon’ble the Supreme Court in case titled ‘Central Bureau of Investigation V. State of Rajasthan and another 2001) 3 SCC 333 para 12 of which reads as under: “12. In a decision rendered by the Kerala High Court the complaint was forwarded by a Magistrate to the Inspector General of Police for investigation under section 156(3) of the CRMC No. 134 2018 Code. When the State challenged the said order of the Magistrate the High Court held that a Magistrate cannot order any police officer other than one who is in charge of a police station to conduct the investigation though the Government in exercise of their executive powers can authorize any superior police officer to investigate a case and such direction can be issued by the higher officer to his subordinate officer in the police department. The said decision is reported in State of Kerala Kolakkacan Moosa Haji. A two Judge Bench of this Court(G.N. Ray and G. B. Pattanaik JJ). Has affirmed the said decision of the Kerala High Court as per order dated 8 4 1997 in Criminal Appeal No. 410 of 1994. The principle involved in the said case would as well be applicable when the Magistrate is approached to direct CBI for conducting So the judgment of Hon’ble the Supreme Court in ‘HDFC Securities Ltd. Vs State of Maharashtra and another’ 2017(1) SCC 640 cannot applied to this case because impugned order is illegal and without jurisdiction. Since the order of Chief Judicial Magistrate Kishtwar dated 08.11.2017 directing the SSP Crime Branch Jammu to investigate the case under section 156(3) Cr.P.C is without jurisdiction and as such illegal and it is accordingly quashed. 10. Disposed of alongwith IA. Sindhu Sharma) 23rd .06.2020 SUNIL II Whether the order is speaking : Yes Whether the order is reportable :

Attaining the age of majority do not decide maturity: Punjab and Haryana HC

In the case of Preeti and another v. State of Haryana and others, [CRWP-4181-2020 (O&M)], the High court of Punjab and Haryana had stated that a minor girl is allowed to stay with the mother of the boy with whom she is married. The facts start with a disturbing phenomenon that has gained increasing momentum over the years is that of runaway couples – young persons who confess to love each other much and it is not liked and preferred by one or both of their families and choose to defy them by running away from home. The concomitant fall-out of such acts on their part is the possible threat of physical harm or worse, sometimes on the basis of caste considerations, with the tacit or vocal approval of Khap Panchayats or community elders. These circumstances had, therefore, driven such couples to approach this Court for the protection of their lives and liberty from their estranged family members.  Preeti and Sahil, are the petitioners in this case. They had claimed to know each other for the last two years. They state that they fell in love but Preeti’s parents, respondents No.4 and 5 herein, were opposed to their relationship The couple was also receiving severe threats from Preeti’s parents, who were determined upon killing them, and thus in this court, they prayed for stern legal action to be taken, in order to help and protect them. In this case, the court had held that “however, going by the statements made in the petition as well as in the representation of the petitioners on 23.06.2020, long before this case crystallized, Preeti had claimed that she overheard her parents planning her marriage with a boy of their choice and snatched the opportunity, when presented, to run away from home. There is no mention that, at that stage, Sahil either solicited or persuaded Preeti to leave home. That particular act on her part seems to have been completely on her own. On the other hand, she claimed that it was she who contacted Sahil after fleeing from home. In effect, Section 12 (a) of the Act of 2006 would have no application and the marriage performed on 23.06.2020 cannot be said to be void on that ground.  Section 7 of the Act of 1955 prescribes the ceremonies of a Hindu marriage. Section 7 (1) states that a Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto, while sub-section (2) thereof states that where such rites and ceremonies include the Saptapadi, that is, the taking of seven steps by the bridegroom and bride jointly before the sacred fire, the marriage becomes complete and binding when the seventh step is taken. The photographs filed before this Court, along with the petition, show Preeti and Sahil walking around the ceremonial fire and it is stated that they solemnized their marriage in a temple.” “No certificate seems to have been issued in proof of the marriage but the law does not require any such certification. Registration of the marriage, which is yet to be made compulsory, can be effected any time post facto. In any event, it is not for this Court to deny the factum of the marriage performed by Preeti and Sahil or affirm the validity thereof.  Prima facie, the photographs indicate that there was a marriage ceremony with Saptapadi, and the parties thereto, Preeti and Sahil, stand by it and affirm that they were duly married as per rites and customs.  Further, Neelam, Sahil’s mother, accepts Preeti as her daughter-in-law and is prepared to stand by their marriage.   As of date, Preeti is 10 months short of attaining the majority. It is not as if, upon the clock strikes 12 midnight on the eve of her 18th birthday, Preeti would magically assume the mental maturity and wisdom to claim the status of an adult.” “The age of majority as prescribed must therefore be construed and interpreted in the context of the law for which it is being considered and in a case of this nature, where the minor is certain and unshaken in her opinion and desire, it would not be right and proper for this Court to brush aside her views on the ground that she is not 18 years of age as on date and is only 17 +.”

on 19 10 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRWP 4181 2020and in any event except for some photographs there was noevidence of an actual marriage ceremony. They asserted their right to havethe custody of their minor daughter. They pointed out that they had takenrecourse to legal remedies by lodging a criminal complaint against Sahilfor kidnapping their daughter and denied that there was any threat to thelife and liberty of the petitioners from them.Certain developments that took place during the pendency ofthis case also need to be taken note of. Preeti was apprehended by thepolice and produced before the learned Duty Magistrate at Panipat. Shegot recorded her statement under Section 164 Cr.P.C. in favour of Sahiland expressed her wish to join him. She categorically refused to go backto her parents. However the Magistrate directed that Preeti should beproduced before the Child Welfare Committee at Panipat. On 21.09.2020 she was produced before the said Committee. Mr. Gautam Diwan learned counsel brought it to the noticeof the Chairperson of the Committee that this writ petition was pendingand apprised the Chairperson of the orders passed by this Court both inthis writ petition as well as in LPA 2146 2016 titled Bhim Sain vs. Stateof Punjab and others decided on 27.10.2016. The Chairperson on 19 10 CRWP 4181 2020requires that a bridegroom should complete the age of 21years while a bride should complete the age of 18 years at the time ofmarriage. Preeti and Sahil do not satisfy this requirement. However Section 11 of the Act of 1955 makes it clear that violation of Section5would not render the marriage void as only the conditionsprescribed in Section 5(iv) andare mentioned therein. Section 12of the Act of 1955 deals with voidable marriages but it only speaks of thecondition prescribed in Section 5was promulgated for the protection ofchildren. Section 2thereof defines a child to mean any person lessthan 18 years of age. The Act of 2012 however did not choose to drawany distinction as to a girl of less than 18 who gets married out of her ownchoice and volition. Therefore any sexual act or intercourse by thehusband with such girl would constitute an offence under variousprovisions of the Act of 2012 though she is his wife. Significantly Exception 2 to Section 375 IPC states to theeffect that sexual intercourse and sexual acts with a wife of over 15 yearsof age would not amount to rape. However this provision was not alteredwhen the Act of 2012 was brought onto the statute book. In effect thoughthe husband would not be liable to be prosecuted for rape under Section376 IPC if his wife is over 15 years of age he would be liable to beprosecuted under the provisions of the Act of 2012 if she is less than theage of 18 years. The Legislature seems to have been unmindful of thisaspect and continues to be so despite the lapse of 8 years since theenactment of the Act of 2012. Taking note of this in IndependentThought vs. Union of India and another10 SCC 800] theSupreme Court held that Exception 2 to Section 375 IPC must be on 19 10 CRWP 4181 2020observed that given the nuances of scientific methodology andconflicting views Courts which can only consider the limited evidenceon the record before them are ill equipped to determine which view ofscience is the right one.Nearer home in their Study on Social Maturity ofAdolescent College Students in Colleges at Tiruchirappalli in 2017 authors P. Anitha Research Scholar PG and Research Department ofSocial work Bishop Heber College Trichy and Dr. A. Umesh SamuelJebaseelan Associate Professor PG and Research Department of SocialWork Bishop Heber College Trichy state thus: Present study is an attempt in the direction of finding asignificant relationship between social maturity various demographicalparameters namely gender age and the achievement motivation ofadolescent students. It found that social maturity and age of therespondents are not related. And in this study gender plays a significantrelationship in developing social maturity. It indicates that excessivecontrol over protectiveness and strictly punishment to the adolescent byfamily prevents development of social maturity of adolescent. To keepstudents isolated from the society affects inversely their social maturity.This study concluded that social maturity of adolescents would be higherwhen they perceive their home environment and academic centers as 1 on 19 10 CRWP 4181 2020Act 2015 that it would be within thedomain of a Juvenile Justice Board to determine as to whether a child inconflict with the law who has completed or is over the age of 16 years should face trial as an adult for the alleged offence. Therefore a criminalact by a child of or over 16 years of age is now being treated on par withthat of an adult but a similar analogy has not been extended to a civil actof a child of the same age. It is also a scientifically recognized fact that girls tend to bemore mature than boys of the same age. That is the reason why there is adiscrepancy even with regard to the age of majority stipulated by thestatute in relation to the sexes. Therefore a girl who has completed theage of 16 years and 10 months can be said to be of the age of discretion tothe extent of at least knowing her own mind and as to what would be inher interest. In any event even if such a girl is treated as a minor the 1 on 19 10 CRWP 4181 2020a learned Judge of thisCourt had occasion to consider a somewhat similar case. The issue beforethe learned Judge was whether the couple were entitled to seek protectionfrom the girl s parents. The learned Judge found that Amnider Kaur was16 years and 2 months of age at the time of her marriage. Reliance wasplaced upon Ravi Kumar vs. State and anotherRCR(Criminal) 41] a Division Bench judgment of the Delhi High Court tocontend that if the girl is above 16 years but below 18 years of age shewould attain the age of discretion and therefore her marriage could not besaid to be void or illegal. Reference was also made to other case law onsimilar lines. The learned Judge however relied upon the provisions of theAct of 2006 and observed that once a minor girl is enticed away from thelawful keeping of her guardian by the alleged husband the marriage itselfwould be void in terms of Section 12thereof. The learned Judgeaccordingly held that he had no choice but to hold that the marriage wasvoid. The learned Judge held that Ravi Kumarwas a decisionrendered before the Act of 2006 and was therefore of no relevance. 1 on 19 10 CRWP 4181 2020and another[2010RCR20] a Division Bench of the Delhi High Courtconsidered the case of a runaway couple where both of them were minors.Jitender was 18 years while Poonam was 16 years old. Jitender filed thecase seeking a writ of habeas corpus to produce Poonam and to hand herover to him. Police protection was also sought. Arguments were advancedbefore the Division Bench as to the validity of the marriage. The DivisionBench adverted to the provisions of the Act of 1955 as well as the Act of2006 and held that a child marriage would not be ipso facto void but maybe rendered so if the circumstances enumerated in Section 12 of the Act of2006 were established and would be voidable at the option of the childspouse in terms of Section 3 of the Act of 2006. The Division Benchfurther held that the mere fact that stricter punishment had been prescribedfor offences under the Act of 2006 did not have any impact on the validityof such child marriages. The Bench thereafter dealt with the issue ofcustody. Reference was made to an earlier judgment of the Delhi HighCourt in Neetu Singh vs. StateRCR26] whereinit was held that even a minor girl cannot be kept in a Protection Homeagainst her wishes. Taking note of the fact that Poonam had marriedJitender the Division Bench observed that her father no longer remainedher natural guardian and that her husband himself a minor would have tobe treated as her guardian. The Division Bench accordingly left Poonamfree to go with Jitender.In Court On Its Own Motionvs. StateRCR821] a Full Bench of the Delhi High Court dealt 1 on 19 10 CRWP 4181 2020whether a marriage contracted with a female of less than 18 years anda male of less than 21 years could be said to be valid and whether thecustody of the said girl can be given to the husband whether a minorcan be said to have reached the age of discretion and thereby walk awayfrom the lawful guardianship of her parents and refuse to be in theircustody if yes can she be kept in the protective custody of the Statewhether the FIR under Section 363 IPC or even under Section 376 IPCcan be quashed on the basis of the statement of such a minor that she hadcontracted the marriage of her own andwhether there may be otherpresumptions also which may arise. Having considered various relevant statutes and case law theFull Bench observed that the object behind enacting the Act of 2006 wasto curb the menace of child marriages which is still prevalent in thiscountry and is more common in rural areas. The Bench found that in thestatutory scheme obtaining even after the promulgation of the Act of2006 a child marriage could not be treated as void ab initio or as a nullity.Noting the loopholes which remain in the context of various laws on thesubject some of recent origin and some of ancient vintage the Full Benchconcluded as regards question No.1 that a marriage contracted with afemale of less than 18 years or a male of less than 21 years would not be avoid marriage unless Section 12 of the Act of 2006 applied but avoidable one under Section 3 thereof. Dealing with questions No.2 and 3 the Full Bench noted thescheme of the Hindu Minority and Guardianship Act 1956and opined that there cannot be a straight forward answerand it would have to depend upon the circumstances for the Court todecide as to what would be in the interest of the minor girl. As regards question No.4 the Full Bench held that if the girlis more than 16 years of age and makes a statement that she went with herown consent and it can be accepted the Court would be within its powerin quashing the proceedings under Sections 363 and 376 IPC. However the Full Bench cautioned that there can be no straitjacket formula to beapplied and the Court has to be careful to ensure the girl s right to get themarriage nullified under Section 3 of the Act of 2006. Further theattending circumstances which would include the maturity andunderstanding of the girl her social background the age of the boy andgirl would also have to be taken into consideration. As regards question No.5 the Full Bench stated that nofurther observations needed to be made in the light of the discussion in thebody of the judgment insofar as that question was concerned.In Neelam Rani and another vs. State of Haryana andanotherRCR636] a learned Judge of this Court wasdealing with the plea of a runaway couple for protection. The age ofNeelam Rani was in dispute but the learned Judge was of the opinion thatshe had reached the age of discretion as she was over 17 years even as perthe claim of her parents. She had married Pawan Kumar against thewishes of her parents but out of her own free will. The learned Judgeobserved that in exercise of jurisdiction under Section 482 Cr.P.C. thisCourt would not go into the validity or otherwise of the marriage for that 1 on 19 10 CRWP 4181 2020HLR 293] a learned Judge of this Court found that thegirl was a minor at the time of solemnization of her marriage. However placing reliance on case law the learned Judge directed that the girlshould be set free and allowed to accompany her husband. Reference inthis regard was made by the learned Judge to the Division Benchjudgment of this Court in Bhim Sain vs. State of Punjab and others(LPA 2146 2016 decided on 27.10.2016). In Baljeet Kaur and anothervs. State of Punjab and anotherHLR 107] the same principlewas again reiterated and affirmed by the learned Judge.In LPA 2146 2016 titled Bhim Sain vs. State of Punjaband others decided on 27.10.2016 a Division Bench of this Court wasdealing with an appeal filed against the order of a learned Judge directingthe minor girl to be sent to the Nari Niketan. The reason for doing so wasthat she intended to perform her marriage with the appellant withoutparental consent. The Division Bench noted that the girl was on the vergeof attaining the age of majority and was short of doing so by just oneweek. The Bench observed that an individual even a minor would havethe freedom to choose and could not be detained in a Nari Niketan againsther wishes as it would be violative of her fundamental rights. 1 on 19 10 CRWP 4181 20201539] a learned Judge of the Allahabad High Courtobserved that once Section 12 of the Act of 2006 had no application thechild marriage would not be liable to be declared void and the naturalguardian of the minor girl would become her husband in terms of Section6(c) of the Act of 1956. The learned Judge further noted that it would notbe in the welfare of a female to remain in a Nari Niketan for a prolongedperiod particularly when she wanted to join the company of her husband who would be her natural guardian in the eye of law. The learned Judgeaccordingly directed that the custody of the minor girl be released by theauthorities of the Nari Niketan in favour of her husband. In CRWP 5531 2020 titled Gaurav vs. State of Punjab andothers decided on 04.08.2020 a learned Judge of this Court denied grantof a writ of habeas corpus on the ground that the girl had been sent to theChildren s Home by the Magistrate of competent jurisdiction who wasdealing with the criminal case registered against her husband. The learnedJudge opined that the minor girl could not be said to be in the illegalcustody of the Children s Home or that she was wrongly confined there.The learned Judge observed that consent of a minor was no consent in theeye of law and accordingly dismissed the writ petition. In CRWP 727 2020 titled Parminder Kaur and another vs.State of Punjab and others decided on 30.01.2020 a learned Judge ofthis Court denied protection to the runaway couple on the ground that acase had already been registered against the husband under Sections 363and 366 A IPC and directed the minor girl who was present in Court to 1 on 19 10 CRWP 4181 2020of the Act of 2006 speaks of the child being taken or enticed out ofthe keeping of the lawful guardian in the context of rendering such child smarriage void. On the same lines Section 361 IPC dealing withkidnapping from lawful guardianship provides that whoever takes orentices any minor out of the keeping of the lawful guardian commits theoffence of kidnapping. In S. Varadarajan vs. State of Madrasa 3 Judge Bench of the Supreme Court dealt with the scope of Section 361IPC and more particularly the interpretation of the words takes or enticesany minor found therein. The Supreme Court observed that there is a 1 on 19 10 CRWP 4181 2020was considered by a 2 Judge Benchof the Supreme Court in Moniram Hazarika vs. State of Assam[(2004) 5 SCC 120]. This judgment dealt with Sections 361 and 366 IPC.On facts the Supreme Court held that the plea of the appellant that theminor girl had voluntarily accompanied him with a view to marry him andthat there was no inducement or taking away as contemplated underSection 361 could not be accepted. The Supreme Court found that thematerial on record showed otherwise. Reference was made to theobservations in S. Varadarajanthat it would be sufficient if theprosecution established that the accused had at some earlier stage solicited or persuaded the minor to leave the father s protection. The largerprinciple laid down in S. Varadarajanwas accordingly held to beinapplicable. Therefore this judgment did not dilute the principle laiddown by the 3 Judge Bench but merely distinguished the case on facts.Much earlier in Jai Narain vs. State of Haryanaa learned Judge of this Court considered the scope of the word takes in Section 361 IPC. On facts the learned Judge found that theaccused had never compelled the minor girl to leave her house. Further the learned Judge found that the girl herself desired to leave the housebecause she thought it would be safe for her to do so. The learned Judgetherefore held that no offence was made out under Section 361 IPC. Mr. Ravi Malik learned counsel would contend that it is notopen to this Court to decide Preeti s custody issue as the writ petition is 2 on 19 10 CRWP 4181 2020the use of the words taken or enticed out of the keeping of thelawful guardian in Section 12of the Act of 2006 would require that at some point of time Sahil should have induced solicited or persuadedPreeti to run away from the custody of her parents respondents No.4and 5. However going by the statements made in the petition aswell as in the representation of the petitioners on 23.06.2020 long beforethis case crystallized Preeti had claimed that she overheard her parentsplanning her marriage with a boy of their choice and snatched theopportunity when presented to run away from home. There is no mentionthat at that stage Sahil either solicited or persuaded Preeti to leave home.That particular act on her part seems to have been completely on her own.On the other hand she claimed that it was she who contacted Sahil afterfleeing from home. In effect Section 12of the Act of 2006 would have 2 on 19 10 CRWP 4181 2020states that a Hindu marriage may besolemnized in accordance with the customary rites and ceremonies ofeither party thereto while sub sectionthereof states that where suchrites and ceremonies include the Saptapadi that is the taking of sevensteps by the bridegroom and bride jointly before the sacred fire themarriage becomes complete and binding when the seventh step is taken.The photographs filed before this Court along with the petition showPreeti and Sahil walking around the ceremonial fire and it is stated thatthey solemnized their marriage in a temple. No certificate seems to havebeen issued in proof of the marriage but law does not require any suchcertification. Registration of the marriage which is yet to be madecompulsory can be effected any time post facto. In any event it is not forthis Court to deny the factum of the marriage performed by Preeti andSahil or affirm the validity thereof. Prima facie the photographs indicatethat there was a marriage ceremony with Saptapadi and the parties thereto Preeti and Sahil stand by it and affirm that they were duly married as perrites and customs. Further Neelam Sahil s mother accepts Preeti as herdaughter in law and is prepared to stand by their marriage. As on date Preeti is 10 months short of attaining majority. Itis not as if upon the clock striking 12 midnight on the eve of her 18thbirthday Preeti would magically assume the mental maturity and wisdomto claim the status of an adult. The age of majority as prescribed must 2 on 19 10 CRWP 4181 2020 (O&M)23therefore be construed and interpreted in the context of the law for whichit is being considered and in a case of this nature where the minor iscertain and unshaken in her opinion and desire it would not be right andproper for this Court to brush aside her views on the ground that she is not18 years of age as on date and is only 17 +. This Court therefore does not deem it appropriate to directthat Preeti s custody should be forcibly entrusted to her parents against herwishes or that she should be kept in a Protection Home till she attains theage of 18 years. It would suffice at this stage if Preeti is allowed to gowith Neelam Sahil s mother and remain with her till she attains the age of18 years. Neelam shall be bound by the affidavit filed by her before thisCourt and take care of Preeti to the best of her capacity and ability.However as Neelam is not her legal guardian and she is being entrustedPreeti s custody only as per the desire and wish expressed by Preetiherself it would be appropriate that the Child Welfare Committee Sonipat monitors Preeti s well being till she attains the age of 18 yearswhile she remains in Neelam s custody. The Chairperson of the ChildWelfare Committee Sonipat is accordingly directed to depute a ChildWelfare Officer to randomly visit Neelam s residence at Kakroi DistrictSonipat twice a month to ensure that Preeti is being well cared for and toascertain whether she has any complaints. The Child Welfare Committee Sonipat shall take on record the reports of such Child Welfare Officerand monitor the case till Preeti attains the age of 18 years. The Superintendent of Police Sonipat shall however remainmindful of the representation made by the petitioners on 23.06.2020 and 2 on 19 10 CRWP 4181 2020 (O&M)24the order passed by this Court on 26.06.2020 in this writ petition andcontinue to extend protection to the petitioners insofar as any physicalthreat from respondents No.4 and 5 or their family members is concerned.The writ petition is disposed of with the above directions. A copy of this order shall be forwarded to the Chairperson Child Welfare Committee Sonipat for necessary further action asindicated hereinabove.Pending miscellaneous applications if any shall standdisposed of in the light of this final order. No order as to costs. October 16th 2020 ( Sanjay Kumar )Kang JudgeWhether speaking reasonedYesWhether reportableYes

High court won’t have the jurisdiction when the appropriate authority is provided under a statutory provision: High Court of Uttarakhand.

Where a statutory provision mentions a competent authority, then a person seeking relief should approach that competent authority and not any other court for relief. A single Judge bench comprising Hon’ble Justice Manoj Kumar Tiwari, in the matter of Yudhir Singh Vs. Union of India and Others (Writ Petition (M/S) No. 1397 of 2021), dealt with an issue where the petitioner approached this court seeking direction in the nature of mandamus, commanding/ directing the respondents to award the compensation, damages, including all other admissible benefits, with interest to the petitioner, as well as the direction in the nature of mandamus, commanding/ directing the respondents to consider the claim of the petitioner of compensation, rehabilitation, resettlement as per the National Rehabilitation & Resettlement Policy, 2007. In the present case, the petitioner was a tenant in a shop that was acquired for the widening of the National Highway under the provisions of the National Highways Act, 1956. The petitioner approached this court as no compensation was provided to him. The counsel for the petitioner supported this petition on the provision contained in Section 3 (c) of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. The petitioner had also referred to Section 3 G (2) of the National Highways Act, 1956 which is a provision that states the determination of the Amount payable as compensation. The counsel for the respondent submitted that the petitioner’s claim for compensation was without any legal basis, as the compensation was already paid to the owner of the shop. The counsel for the respondent also pointed out that if the petitioner had any claim, then he should be approaching Competent Authority Land Acquisition under Section 3G (5) of the National Highways Act, 1956. The court observed that- “Since petitioner has a statutory remedy under Section 3G (5) of National Highways Act, 1956, therefore, the writ petition is disposed of with liberty to the petitioner to approach Competent Authority Land Acquisition.”

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL ON THE 24TH DAY OF JULY 2021 HON’BLE SHRI JUSTICE MANOJ KUMAR TIWARI Writ PetitionNo. 13921 Yudhbir Singh. By Mr. B.S. Negi Advocate) Union of India and others. ....Petitioner ...Respondents By Mr. Rakesh Kunwar Additional C.S.C. for the State of Uttarakhand and Mr. Naresh Pant Advocate for respondent nos.2 4 & 8) According to the petitioner he was tenant in a shop which was acquired for widening of National Highway under the provisions of National Highways Act 1956. Since no compensation was paid to the petitioner therefore he has approached this Court seeking the following reliefs: of mandamus “(i) issue a writ order or direction in the directing the respondents to award the compensation damages including all other admissible benefits with interest to the ii) issue a writ order or direction in the directing the respondents to consider the claim of the petitioner of compensation rehabilitation resettlement as per of mandamus 2 National Rehabilitation & Resettlement Policy 2007 of Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act 2013 which is reproduced below: “3. Definitions In this Act unless the context otherwise requires c) "affected family" includes i) a family whose land or other acquired ii) a family which does not own any land but a member or members of family may be agricultural labourers tenants including any form of tenancy or holding of usufruct right share croppers or artisans or who may be working in the affected area for three years prior to the acquisition of the land whose primary source of livelihood stand affected by acquisition of land iii) the Scheduled Tribes and other traditional forest dwellers who have lost any of recognised under the Scheduled Tribes and Other Traditional Forest Dwellers Recognition of Forest Rights) Act 2006due to acquisition of land 3 iv) family whose primary source of livelihood for three years prior to the acquisition of the land is dependent on forests or water bodies and includes gatherers of forest produce hunters fisher folk and boatmen and such livelihood is affected due to acquisition of land v) a member of the family who has land by the State been assigned Government under any of its schemes and such land is under acquisition vi) a family residing on any land in the urban areas for preceding three years or more prior to the acquisition of the land or whose primary source of livelihood for three years prior to the acquisition of the land is affected by the acquisition of such land ” Learned counsel for the petitioner has also referred to provision contained in Section 3 Gof the National Highways Act 1956 which reads as under: “3G. Determination of amount payable as compensation 2) Where the right of user or any right in the nature of an easement on any land is acquired under this Act there shall be paid an amount to the owner and any other person whose right of enjoyment in that land has been affected in any manner whatsoever by reason of such acquisition an amount calculated at ten per cent. of the amount determined under sub section for that land.” Learned counsel for respondent nos. 2 4 & 8 then submits that if petitioner has any claim for compensation then he has a remedy of approaching Competent Authority Land Acquisition under Section 3G 5) of National Highways Act 1956. Since petitioner has statutory remedy under Section 3G of National Highways Act 1956 therefore the writ petition is disposed of with liberty to petitioner to approach Competent Authority Land Acquisition. If petitioner approaches the Competent Authority Land Acquisition within three weeks from today the Competent Authority Land Acquisition shall consider and decide petitioner’s claim on merits as early as possible preferably within a period of one year from the date of production of certified copy of this order.

For an appeal to be maintained under section 37 Arbitration and Conciliation Act, 1996, an arbitral award under section 34 must be refused or set aside: Bombay High Court

Section 37 (1) (c) of the Arbitration and Conciliation act,1996 mentions that for an order to be appealed under section 37, the award granted under section 34 must be refused or set aside. However, If the amendment application for the ground to challenge the refusal of the counterclaim is dismissed, it is not that the petition filed to challenge the entire award comes to an end and thus will not be maintainable under section 37. This was decreed by the two-judge bench comprising of Hon’ble Justice Nitin Jamdar and Hon’ble Justice C.V. Bhadang in Oil & Natural Gas Corporation Ltd. Vs. Sime Darby Engineering Sdn. Bhd. And Swiber Offshore Construction Pte. Ltd. [COMMERCIAL APPEAL NO. 55 OF 2020]. The brief facts of the case are, the appellant ONGC issued a tender on 29th may 2009 for an independent project. On 19 May 2010, the tender was awarded to the respondents. An agreement between the parties was executed on 3rd July 2010 pursuant to the same. However, a dispute arose between the parties and the arbitration clause was invoked and an arbitral tribunal was set up. Th tribunal held the appellant liable to pay the respondent for the settlement of rival claims. Aggrieved by this, the appellant filed an arbitration petition and a year later took out chamber summons to amend this petition and add grounds to challenge the award. The respondents contested such a chamber summons. The grounds were categorized into elaboration of the existing grounds and additional grounds. The learned judge allowed the elaboration of the existing grounds but decreed that the additional grounds cannot be included due to the expiry of the period of limitation. Challenging this order, the present appeal is filed before the Hon’ble High Court claiming that, the additional grounds must also be allowed to be included. The counsel for the respondents challenged the maintainability of the present appeal under section 37 of the act. They submitted that asper section 37 (1) (c) of the act, only those orders whose awards are set aside or there is a refusal to set aside under section 34 of the act can be appealed before the court. However, the counsel for the respondent submitted that the award under section 34 was set aside due to a delay and thus will be maintainable under section 37 for an appeal before the Hon’ble court. To support this claim, the counsel for the appellant made use of the Effect test to ascertain whether the appeal is maintainable under Section 37(1) (c) of the Act. According to the Appellant, what needs to be seen is the effect of the order to decide whether an appeal under Section 37 is maintainable.

on 05 07 2021 on 06 07 skn 1 COMAPP 55.2020.docIN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTIONCOMMERCIAL APPEAL NO. 55 OF 2020INCHAMBER SUMMONSNO. 445 OF 2019INCOMMERCIAL ARBITRATION PETITION NO. 437 OF 2018Oil & Natural Gas Corporation Ltd.A public sector undertaking incorporated under Companies Act 1956 having its RegisteredOffice at 5 Nelson Mandela Marg Vasant Kunj New Delhi 110 070.Mumbai Region Civil Construction Section through CE(C) I C IEIT Building Ground Floor ONGS Complex Phase I Panvel 410 221.…Appellant.V s.A Consortium of Sime Darby EngineeringSdn. Bhd. a company established and registered under the Laws of Malaysia having its registered office at Mezzanine Floor Kompleks Sime Darby Persiaran Kewajipan USJ 7 47600 Subang Jaya Selangor Darul Ehsan Malaysia.And Swiber Offshore Construction Pte. Ltd. a company established and registered under the Laws o Singapore having its principal office at 12 International Business Park Cyberhub @ IBP #04 01 to 04 Singapore 609920.…Respondent. on 05 07 2021 on 06 07 skn 2 COMAPP 55.2020.docMr.Zubin Behramkamdin with Mr.Rohit Gupta Nishit Dhruva Prakash Shinde Khushbu Chhajed and Abhishek Bhavsar i b. MDP & Partners for the Appellant.Mr.Kevic Setalvad Senior Advocate with Ms.Renu Gupta Ms.Sushma Nagaraj Ms.Kinjal Patel and Ms.Vibhuti Kenyfor the Respondent.CORAM :NITIN JAMDAR ANDC. V. BHADANG JJ.(Through Video Conferencing)DATE :3 July 2021.JUDGMENT :(Per Nitin Jamdar J.)The Appellant Oil & Natural Gas Corporation Ltd. hasfiled a Commercial Arbitration Petition under Section 34 of theArbitration and Conciliation Act 1996 before the learned SingleJudge challenging the arbitral award rendered against the Appellant.In this petition the Appellant took out a chamber summon toamend the original petition. By the impugned order the learnedSingle Judge granted some amendments and rejected the otheramendments. The Appellant by this appeal has challenged theorder of the learned Single Judge rejecting the amendments.2.Preliminary objection is taken by the Respondent to themaintainability of the appeal. To consider the preliminary objection a brief narration of facts is necessary and it is as follows: on 05 07 2021 on 06 07 skn 3 COMAPP 55.2020.doc3.The Appellant ONGC issued a tender on 29 May 2009for the work ‘The construction and commissioning for entirefacilities of one well cum process platform with living quarters cumpower generation cum water injection on an independent jacket.’On 19 May 2010 the tender was awarded to the Respondents forworks amounting to USD 618376022 . Pursuant to the same anagreement was executed between the parties on 3 July 2010. Adispute arose between the parties regarding the said contract. TheRespondents invoked an arbitration clause and issued notice on 1June 2016 by appointing an arbitrator and called upon the Appellantto appoint its arbitrator. An arbitral tribunal was then constituted.The parties filed their pleadings. The Appellant filed counterclaims.The arbitral tribunal heard the parties and delivered the majorityaward on 22 March 2018. The Appellant was held liable to pay theRespondent a sum of USD 5127915.40in fulland final settlement of rival claims. Interest at 14% per annum fromthe award till payment was granted. Most of the counterclaims wererejected.4.Being aggrieved by the Award the Appellant filedArbitration Petition No.437 2018 on 26 March 2018. On 25March 2019 the Appellant took out Chamber SummonsNo.445 2019 to amend the Arbitration Petition and add grounds tochallenge the Award. The schedule of amendments contained variousgrounds to be added. The Respondent filed its reply to the chambersummons and contested the chamber summons. The learned on 05 07 2021 on 06 07 skn 4 COMAPP 55.2020.docSingle Judge grouped the amendments into three categories. First the grounds R to TTpertaining to the challenge to thecounterclaim of the Appellant being rejected by the Arbitrators.The second grounds SS to WW and III elaborated the existinggrounds of challenge regarding the delay and liquidated damages.The third pertaining to various individual claims not raised duringthe contract work but were claimed as additional work. 5.After noting the law on the subject regarding amendments more particularly amendments to the arbitration petition filed underSection 34 of the Act of 1996 the learned Single Judge opined thatthe grounds in the elaboration of existing grounds i.e. the secondcategory of grounds need to be granted. As for the third category the learned Single Judge observed that these grounds were additionalgrounds of challenge and could not have been taken up after theexpiry of the period of limitation. So far as the first category ofgrounds the learned Single Judge observed that in respect of thecounterclaim there are new grounds and would introduce a newclaim or cause of action and no circumstances exist why anexception should be made in an ordinary rule of not grantingamendments after the period of limitation. The learned SingleJudge thus by the impugned order dated 28 August 2019 grantedsome of the amendments and rejected the others as above. 6.This order is under challenge before us in the presentappeal. According to the Appellant the chamber summons ought to on 05 07 2021 on 06 07 skn 5 COMAPP 55.2020.dochave been allowed in entirety. A preliminary objection is taken bythe Respondent to the maintainability of the appeal contending thatthe appeal does not fall within the ambit of Section 37 of the Act of19967.We have heard Mr.Zubin Behramkamdin learnedAdvocate for the Appellant and Mr.Kevic Setalvad learned SeniorAdvocate for the Respondent.8.According to the Respondents only those orders that fallwithin the ambit of Section 37 of the Act of 1996 can be challengedin appeal. On the other hand it is the case of the Appellant that therejection of chamber summons in the present circumstances fallswithin the ambit of Section 37(1)(c) of the Act.9.Section 37 of the Act reads as under:37. Appealable orders.—Notwithstanding anythingcontained in any other law for the time being in force anappeal shall lie from the following ordersrefusing to refer the parties to arbitration undersection 8granting or refusing to grant any measure undersection 9setting aside or refusing to set aside an arbitralaward under section 34.(2) An appeal shall also lie to a Court from an ordergranting of the arbitral tribunal.— on 05 07 2021 on 06 07 skn 6 COMAPP 55.2020.doc(a) accepting the plea referred in sub sectionor sub sectionof section 16 or(b) granting or refusing to grant an interim measureunder section 17.(3) No second appeal shall lie from any order passed inappeal under this section but nothing in this section shallaffect or take away any right to appeal to the Supreme Court.(emphasis supplied)10.The position of law that only those appeals challenging theorders specified under Section 37 of the Act can be filed underSection 37 is now settled. The Apex Court in the case of KandlaExport Corporation v. OCI Corporation1 held that an appeal shalllie from such orders passed by the Commercial Division of the HighCourt that are specifically enumerated under Order 43 of the Codeof Civil Procedure Code 1908 and Section 37 of the Arbitration Actand appeals mentioned in Section 37 of the Arbitration Act alone areappeals that can be made to the Commercial Appellate Division ofthe High Court. The Division Bench of this Court in KakadeConstruction Company Ltd. v. Vistra ITCLLtd.2 hasfollowed the decision in Kandla Export Corporation to hold thatonly those orders specified in Section 37 can be a subject matter ofappeal under Section 37 of the Act.11.The Respondent in support of its preliminary objection relies upon the decision of the Division Bench of this Court in the1(2018) 14 SCC 71522019 SCC Online Bom 1521 :6 Bom CR 805 on 05 07 2021 on 06 07 skn 7 COMAPP 55.2020.doccase of Raghuvir Cotton Ginning and Pressing Pvt.Ltd. v. VijayCotton and Fibre Co.3 It is contended that the Division bench hascategorically held that no appeal under Section 37 of the Act of 1996is maintainable from the order rejecting the application foramendment. In this case the Division Bench considered the appealfiled under Section 37 of the Act challenging the order dismissingthe chamber summons for amendment of arbitration petition filedunder Section 34 of the Act. An argument was advanced by theappellant therein based on the Apex Court s decision in the case ofState of Maharashtra v. Hindustan Construction Company Ltd.4 thatthe application for amendment of the arbitration petition to betreated as a new application and the rejection thereof would finallyreject the ground under Section 34. The Division Bench however dismissed the appeal as not maintainable. According to theAppellant the Division Bench has not addressed the argumentsbased on the Apex Court decision in Hindustan Construction. 12.The Respondent in furtherance of the preliminaryobjection has also relied upon the decision of the Supreme Court inthe case of BGS SGS Soma JV v. NHPC Ltd.5 In this case theSpecial Commercial Court Gurugram had returned the petitionfiled under Section 34 for presentation to a proper court. This orderwas challenged before the High Court of Punjab and Haryana atChandigarh which held that the appeal under Section 37 wasmaintainable and allowed the same and set aside the order passed by32017 CC Online Bom 76 :5 Mah LJ 3524(2010) 4 SCC 518 : AIR 2010 SC 12995(2020) 4 SCC 234 on 05 07 2021 on 06 07 skn 8 COMAPP 55.2020.docthe Commercial Court. The Bench of three learned judges of theSupreme Court considered a challenge to the order passed by theHigh Court. The Appellant before the Supreme Court argued thatbesides the merits of the matter the appeal before the High Courtwas not maintainable. The Supreme Court observed that there is noindependent right of appeal under Section 13(1) of the CommercialCourts Act 2015 which merely provides the forum for filingappeals. The parameters of Section 37 of the Act 1996 alone haveto be looked into. Appeals shall lie under Section 37(1) only fromthe orders referred in sub clauses(b) andand from no others.The Supreme Court held that where a Section 34 Petition is orderedto be returned to the appropriate Court such order would notamount to an order refusing to set aside an arbitral award underSection 34. It was held that the refusal to set aside an arbitral awardmust be after the grounds set out in Section 34 have been applied tothe arbitral award and after the Court has turned down such grounds.Though the Appellant has sought to distinguish this decision onfacts the Apex Court s observations in BGS SGS Soma cannot berestricted to the facts of the case alone. The Apex Court has clearlyheld that “the refusal to set aside an arbitral award” under Section37(1)of the Act must be after the grounds set out in Section 34of the Act of 1996 have been applied to the arbitral award inquestion and after the Court has turned down such grounds that anappeal under Section 37 of the Act of 1996 would be maintainable.13.The Division Bench of the Delhi High Court in the case of on 05 07 2021 on 06 07 skn 9 COMAPP 55.2020.docHarmanprit Singh Sidhu v. Arcadia Shares and Stock Brokers Pvt.Ltd.6 considered the challenge to the order passed by the SingleJudge of the Court allowing the application for condonation of delayand condoning the delay of 55 days in filing the petition underSection 34 of the Act. The Division Bench dismissed the appealunder Section 37 of the Act holding that the impugned order did notfall within the category of appealable orders specified in Section37(1) of the Act of 1996.14.The Appellant in support of its contention that thepresent appeal is maintainable under Section 37(1)(c) of the Act of1996 has relied upon the decision of the Supreme Court in the caseof Chintels India Ltd. v. Bhayana Builders Ltd.7 Here a conversesituation of the court refusing to condone the delay in filing thepetition under Section 34 of the Act was under consideration. Inthis case the Division Bench of Delhi High Court dismissed theappeal under Section 37 of the Act filed against the order passed bythe learned Single Judge refusing to condone the delay in filing apetition under Section 34 of the Act. The respondent before theApex Court argued that Section 37(1)(c) is clear and the refusal toset aside an award has to be only on merits and not on a preliminaryground. The Apex Court invoked the Effect test and observed thatthe Effect test is part and parcel of the statutory provision for appealunder Section 37 of the Act and it is an express language of Section37(1)(c). The Supreme Court observed that the effect of the order62016DRJ 51472021 SCC Online SC 80 on 05 07 2021 on 06 07 skn 10 COMAPP 55.2020.docdismissing the application for condonation of delay is that theapplication under Section 34 comes to an end. Observing this theSupreme Court allowed the appeal holding that the appeal underSection 37(1)(c) would be maintainable against the order refusing tocondone the delay in filing a petition under 34 of the Act.15.Based on the decision of the Supreme Court in ChintelsIndia the Appellant contended that Court must apply the Effect Testto ascertain whether the appeal is maintainable under Section 37(1)(c) of the Act. According to the Appellant what needs to be seen isthe effect of the order to decide whether an appeal under Section 37is maintainable. It is contended that the effect of rejection of theamendment more particularly regarding the challenge to the refusalof the counterclaim is that case of the Appellant in that regard standsclosed. The Appellant submits that by rejecting the amendment tochallenge the Arbitrator’s refusal to grant counterclaim thischallenge is now foreclosed. The Appellant contends that since thisground cannot be taken before the learned single judge it is a refusalto set aside the award as per Section 37(1)(c) of the Act. ThePetitioner contends that the Supreme Court in HindustanConstruction has held that since an application for amendment of aPetition under Section 34 beyond the period of limitation wouldamount to a new application rejection of such ‘new application’amounts refusing to set aside the award as per Section 37(1)(c) of theAct. It is submitted that Section 37 needs to be construedaccordingly. on 05 07 2021 on 06 07 skn 11 COMAPP 55.2020.doc16.According to us the dicta laid down in Chintels India willnot assist the Appellant in the facts of this case. The effect of refusingto condone delay for filing a petition under Section 34 is that there isa refusal to set aside the award in its entirety and as a consequence the petition under Section 34 also gets dismissed. This position isentirely different from the rejection of an amendment.17.The Appellant s argument that by rejecting theamendment to challenge the arbitrator’s refusal to grant thecounterclaim of the Appellant this challenge is now foreclosed isbased on a misconception. Even if these grounds are taken andaccepted it will not lead to the grant of counterclaim in the petitionunder Section 34 of the Act of 1996. The only consequence will bethat the entire award will be set aside. The rejection of anamendment to challenge the finding regarding non grant ofcounterclaim will only mean that the Single Judge will not permitthis as a ground to challenge the award. If the amendmentapplication for the ground to challenge the refusal of thecounterclaim is dismissed it is not that the petition filed to challengethe entire award comes to an end. The challenge on the othergrounds would continue and if the Appellant succeeds on thosegrounds the award can be set aside.18.The learned counsel for the Respondents pointed out thatthe learned Single Judge has not rejected the amendment regarding on 05 07 2021 on 06 07 skn 12 COMAPP 55.2020.docthe challenge to the rejection of counterclaim on the ground oflimitation alone but has observed that there will be no exceptionalcircumstances to deviate from the standard rule.19.The argument of the Appellant on the maintainability ofthe appeal and on the merits of the challenge is contradictory. TheAppellant s case on maintainability is that since the groundchallenging refusal to grant counter claim is not allowed to be taken the challenge ends. However when asked as to what is the challengeon merits it was contended that denial of counterclaim and grant ofclaim against the Appellant is a composite award and once the awardis challenged in entirety the amendment was only regarding a pre existing challenge. 20.The legal position emerging from the plain language ofSection 34 of the Act of 1996 is that there should be setting aside orrefusal to set aside the award under Section 34 for the appeal to lieunder Section 37(1)(c) of the Act. There is a difference betweenrefusing an amendment to take a ground of challenge and rejectingthe entire petition finally under Section 34. The Appellant is mixingup the concepts. The observation of the Apex Court in HindustanConstruction in the context of not allowing the new or freshchallenge after the period of limitation does not mean that under theAct there are multiple petitions under Section 34. The petitionunder Section 34 is only one. Section 37(1)(c) makes it clear thatwhen the Court finally allows or refuses to set aside the award under on 05 07 2021 on 06 07 skn 13 COMAPP 55.2020.docSection 34 of the Act that an appeal is maintainable under Section37(1)(c).21.The arbitration proceedings have to be concluded withexpeditiousness and the challenges to be kept minimum. Thedisputes relating to arbitral awards have to be resolved speedily. If aview is taken that wherever an application for an amendment to thepetition under Section 34 is rejected an appeal would lie underSection 37 of the Act is it will lead to an anomalous situation. Aparty intending to delay the proceedings would keep filingapplications for amendment and upon rejection file an appealpraying for postponement of the petition under Section 34.According to the Respondent this is the exact intention of theAppellant. The Respondent moved the amendment after one year.After the amendment application was rejected the appeal filed on 6December 2019 was kept pending at the stage of removing officeobjections and was moved on an urgent basis only when theRespondent took steps to attach the assets in the executionproceedings in April 2021.22.The challenge in the present appeal does not fall underSection 37(1)(c) of the Act of 1996. It does not fall within any ofthe categories specified in Section 37. Since the challenge does notfall within the ambit of Section 37 of the Act the appeal is notmaintainable. Accordingly the preliminary objection raised by theRespondent is upheld. on 05 07 2021 on 06 07 skn 14 COMAPP 55.2020.doc23.Another facet that was argued before us by theRespondent is that Appellant is not remediless if this appeal is notmaintainable as the Act of 1996 has a scheme of deferring thechallenges till final disposal of the proceedings. The Respondentspointed out that under Section 13 if a challenge under anyprocedure agreed upon by the parties or under the procedure underSub Sectionis unsuccessful the arbitral tribunal is to continuethe arbitral proceedings and make an arbitral award. Under Section16 of the Act the arbitral tribunal can decide the pleas regarding itsjurisdiction and where the arbitral tribunal rejects the plea it has tocontinue with the arbitral proceedings and make an arbitral award.The aggrieved party then has to challenge such a finding whenchallenging the award under Section 34 of the Act. The DivisionBench of the Delhi High Court in the case of Harmanprit Singh hasheld that even if the appeal challenging the order of condoning thedelay in filing the Petition under Section 34 is not maintainable itdoes not mean that there is no remedy. If the arbitral award is setaside in part or in whole and the Appellant is aggrieved he mayprefer an appeal under Section 37 both on merits and on the groundthat the delay ought not to have been condoned. The Benchobserved that the remedy of challenging the decision of condoningthe delay is not extinguished but is deferred till the final decision ofthe court on the pending Section 34 petition. No contrary positionof law is shown to us that challenge to the orders regarding theamendment to the Arbitration Petition cannot be taken up in an on 05 07 2021 on 06 07 skn 15 COMAPP 55.2020.docappeal under Section 37 of the Act of 1996 from the final orderunder Section 34. However having held that the present appeal isnot maintainable it is not necessary for us to conclude this issue inthis appeal. 24.The appeal is dismissed as not maintainable. 25.It is clarified that the observations made in thisjudgment are in the context of deciding the maintainability of theappeal and not on the merits of the impugned order.

Article 227 of Constitution against the dismissal of Arbitration Application can be invoked only if there is Patent Lack of Jurisdiction

The Hon’ble Supreme Court of India in Punjab State Power Corporation V. EMTA Coal Ltd. &Anr. [Special Leave to Appeal (C) No. 8482/2020]  held that approaching writ courts against dismissal of an arbitration application by an arbitrator can only be entertained if it is clear that there was a patent lack of inherent jurisdiction. The Bench of Hon’ble Justices Rohinton Nariman, Navin Sinha and Indira Banerjee noted that parties to arbitration agreements are invoking Article 227 jurisdiction of the High Courts even where there is no patent lack in inherent jurisdiction. Background – The petitioner is Punjab State Power Corporation, and had invoked the High Court’s writ jurisdiction to challenge an order passed by an arbitral tribunal. The High Court had dismissed the writ on the ground that the “drill of Section 16” of the Arbitration Act was not fully followed and that the plea was filed at a time when the arguments before the tribunal had concluded, the petitioner filed an appeal against this order in Supreme Court. Held/Observation – It was held by the Hon’ble Court that “ We are of the view that a foray to the writ Court from a section 16 application being dismissed by the Arbitrator can only be if the order passed is so perverse that the only possible conclusion is that there is a patent lack in inherent jurisdiction. A patent lack of inherent jurisdiction requires no argument whatsoever – it must be the perversity of the order that must stare one in the face.” It was further expounded by the court “Unfortunately, parties are using this expression which is in our judgment in Deep Industries Ltd., to go to the 227 Court in matters which do not suffer from a patent lack of inherent jurisdiction. This is one of them. Instead of dismissing the writ petition on the ground stated, the High Court would have done well to have referred to our judgment in Deep Industries Ltd. and dismiss the 227 petition on the ground that there is no such perversity in the order which leads to a patent lack of inherent jurisdiction. The High Court ought to have discouraged similar litigation by imposing heavy costs. The High Court did not choose to do either of these two things.” The Hon’ble Court while dismissing the petition imposed a cost of Rs. 50,000 on the Petitioners and noted that it is clear that this is not a case which falls under the extremely exceptional category. Click to Read Order The Bench of Hon’ble Justices Rohinton Nariman, Navin Sinha and Indira Banerjee noted that parties to arbitration agreements are invoking Article 227 jurisdiction of the High Courts even where there is no patent lack in inherent jurisdiction. Background – The petitioner is Punjab State Power Corporation, and had invoked the High Court’s writ jurisdiction to challenge an order passed by an arbitral tribunal. The High Court had dismissed the writ on the ground that the “drill of Section 16” of the Arbitration Act was not fully followed and that the plea was filed at a time when the arguments before the tribunal had concluded, the petitioner filed an appeal against this order in Supreme Court. Held/Observation – It was held by the Hon’ble Court that “ We are of the view that a foray to the writ Court from a section 16 application being dismissed by the Arbitrator can only be if the order passed is so perverse that the only possible conclusion is that there is a patent lack in inherent jurisdiction. A patent lack of inherent jurisdiction requires no argument whatsoever – it must be the perversity of the order that must stare one in the face.” It was further expounded by the court “Unfortunately, parties are using this expression which is in our judgment in Deep Industries Ltd., to go to the 227 Court in matters which do not suffer from a patent lack of inherent jurisdiction. This is one of them. Instead of dismissing the writ petition on the ground stated, the High Court would have done well to have referred to our judgment in Deep Industries Ltd. and dismiss the 227 petition on the ground that there is no such perversity in the order which leads to a patent lack of inherent jurisdiction. The High Court ought to have discouraged similar litigation by imposing heavy costs. The High Court did not choose to do either of these two things.” The Hon’ble Court while dismissing the petition imposed a cost of Rs. 50,000 on the Petitioners and noted that it is clear that this is not a case which falls under the extremely exceptional category. Click to Read Order Background – The petitioner is Punjab State Power Corporation, and had invoked the High Court’s writ jurisdiction to challenge an order passed by an arbitral tribunal. The High Court had dismissed the writ on the ground that the “drill of Section 16” of the Arbitration Act was not fully followed and that the plea was filed at a time when the arguments before the tribunal had concluded, the petitioner filed an appeal against this order in Supreme Court. Held/Observation – It was held by the Hon’ble Court that “ We are of the view that a foray to the writ Court from a section 16 application being dismissed by the Arbitrator can only be if the order passed is so perverse that the only possible conclusion is that there is a patent lack in inherent jurisdiction. A patent lack of inherent jurisdiction requires no argument whatsoever – it must be the perversity of the order that must stare one in the face.” It was further expounded by the court “Unfortunately, parties are using this expression which is in our judgment in Deep Industries Ltd., to go to the 227 Court in matters which do not suffer from a patent lack of inherent jurisdiction. This is one of them. Instead of dismissing the writ petition on the ground stated, the High Court would have done well to have referred to our judgment in Deep Industries Ltd. and dismiss the 227 petition on the ground that there is no such perversity in the order which leads to a patent lack of inherent jurisdiction. The High Court ought to have discouraged similar litigation by imposing heavy costs. The High Court did not choose to do either of these two things.” The Hon’ble Court while dismissing the petition imposed a cost of Rs. 50,000 on the Petitioners and noted that it is clear that this is not a case which falls under the extremely exceptional category. Click to Read Order Held/Observation – It was held by the Hon’ble Court that “ We are of the view that a foray to the writ Court from a section 16 application being dismissed by the Arbitrator can only be if the order passed is so perverse that the only possible conclusion is that there is a patent lack in inherent jurisdiction. A patent lack of inherent jurisdiction requires no argument whatsoever – it must be the perversity of the order that must stare one in the face.” It was further expounded by the court “Unfortunately, parties are using this expression which is in our judgment in Deep Industries Ltd., to go to the 227 Court in matters which do not suffer from a patent lack of inherent jurisdiction. This is one of them. Instead of dismissing the writ petition on the ground stated, the High Court would have done well to have referred to our judgment in Deep Industries Ltd. and dismiss the 227 petition on the ground that there is no such perversity in the order which leads to a patent lack of inherent jurisdiction. The High Court ought to have discouraged similar litigation by imposing heavy costs. The High Court did not choose to do either of these two things.” The Hon’ble Court while dismissing the petition imposed a cost of Rs. 50,000 on the Petitioners and noted that it is clear that this is not a case which falls under the extremely exceptional category. Click to Read Order It was further expounded by the court “Unfortunately, parties are using this expression which is in our judgment in Deep Industries Ltd., to go to the 227 Court in matters which do not suffer from a patent lack of inherent jurisdiction. This is one of them. Instead of dismissing the writ petition on the ground stated, the High Court would have done well to have referred to our judgment in Deep Industries Ltd. and dismiss the 227 petition on the ground that there is no such perversity in the order which leads to a patent lack of inherent jurisdiction. The High Court ought to have discouraged similar litigation by imposing heavy costs. The High Court did not choose to do either of these two things.” The Hon’ble Court while dismissing the petition imposed a cost of Rs. 50,000 on the Petitioners and noted that it is clear that this is not a case which falls under the extremely exceptional category. Click to Read Order

ITEM NO.9 Court 3SECTION IV B S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to AppealNo. 8482 2020 Arising out of impugned final judgment and order dated 10 12 2019 in CWP No. 12700 2019 passed by the High Court of Punjab & Haryana PUNJAB STATE POWER CORPORATION LIMITED Petitioner(s EMTA COAL LIMITED & ANR. Respondent(s FOR ADMISSION and I.R. and IA No.63395 2020 EXEMPTION FROM FILING C C OF THE IMPUGNED JUDGMENT and IA No.69953 2020 PERMISSION TO FILE ADDITIONAL DOCUMENTS FACTS ANNEXURES Date : 18 09 2020 This petition was called on for hearing today CORAM : HON BLE MR. JUSTICE ROHINTON FALI NARIMAN HON BLE MR. JUSTICE NAVIN SINHA HON BLE MS. JUSTICE INDIRA BANERJEE Mr. K. V. Vishwanathan Sr. Adv Ms. Uttara Babbar AOR Mr. Vinod Bharadwaj Adv Ms. Bhavana Duhoon Adv Mr. R. Venkataraman Adv Mr. Manan Bansal Adv Mr. Abhimanyu Bhandari Adv Mr. Sangram S. Saron Adv Ms. Nattasha Garg Adv Ms. Rooh e hina Dua AOR UPON hearing the counsel the Court made the following O R D E R The impugned judgment dated 10.12.2019 is grounded on the fact that the impugned order passed by the Arbitral Tribunal on 08.01.2017 was challenged only 2½ years late and the petitioner filed the writ petition at the last minute after the arguments had concluded before the Arbitral Tribunal. Based on this ground the writ petition has been SLPNo. 8482 2020 dismissed filed under Article 227 directly against a section 16 application without following the drill of section 16 of the Arbitration Act Shri K. V. Vishwanathan learned senior counsel appearing for the petitioner has argued before us based on our judgment in Deep Industries Ltd. v. Oil and Natural Gas Corporation Ltd. & Anr. SCC Online SC 1602 and paragraph 16 in particular which is set out hereinbelow “16. This being the case there is no doubt whatsoever that if petitions were to be filed under Articles 226 227 of the Constitution against orders passed in appeals under Section 37 the entire arbitral process would be derailed and would not come to fruition for many years. At the same time we cannot forget that Article 227 is a constitutional provisions which remains untouched by the non obstante clause of Section 5 of the Act. In these circumstances what is important to note is that though petitions can be filed under Article 227 against judgments allowing or dismissing first appeals under Section 37 of the Act yet the High Court would be extremely circumspect in interfering with the same taking into account the statutory policy as adumbrated by us herein above so that interference is restricted to orders that are passed which are patently lacking in inherent According to Shri Vishwanathan one look at the Joint Venture Agreement and the arbitration clause therein would make it clear that the third party in this case had not been referred to at all as a result of which there is a patent lack of inherent jurisdiction within the meaning of paragraph 16 of the Deep Industries Ltd.No. 8482 2020 can only be if the order passed is so perverse that the only possible conclusion is that there is a patent lack in inherent jurisdiction. A patent lack of inherent jurisdiction requires no argument whatsoever it must be the perversity of the order that must stare one in the face Unfortunately parties are using this expression which is in our judgment in Deep Industries Ltd. to go to the 227 Court in matters which do not suffer from a patent lack of inherent jurisdiction. This is one of them. Instead of dismissing the writ petition on the ground stated the High Court would have done well to have referred to our judgment in Deep Industries Ltd. and dismiss the 227 petition on the ground that there is no such perversity in the order which leads to a patent lack of inherent jurisdiction. The High Court ought to have discouraged similar litigation by imposing heavy costs. The High Court did not choose to do either of these two things. In any case now that Shri Vishwanathan has argued this matter and it is clear that this is not a case which falls under the extremely exceptional category we dismiss this special leave petition with costs of Rs.50 000 to be paid to the Supreme Court Legal Services Committee within two weeks Pending applications stand disposed of NIDHI AHUJA) (NISHA TRIPATHI AR cum PS BRANCH OFFICER

Oral gifts of immovable property cannot be made and mere delivery of possession without a written instrument cannot confer title: Sikkim High Court.

In the present case which was brought in front of the Sikkim High Court namely Tenzing Samchok Bhutia V. Health Care & Family Welfare Department and Ors. [W.P. (C) No. 47 of 2020] a writ petition has been filed by the petitioner seeking a mandamus against the Health Care and Family Welfare Department (respondent no.1) and Land Revenue and Disaster Management Department (respondent no. 2) of the Government of Sikkim. The facts of the case were that in the year 2018 the petitioner learnt, while initiating construction in his property i.e. plot no.588, that the respondents had constructed three structures in his property measuring 0.1480 Hectares (Ha) (15,930 square feet) by acquiring an area approximately 0.1050 Ha (11,302 square feet) without following the provisions of the Land Acquisition Act, 2013. It was further stated that as per the land records the plot has a total area of 0.1480 Ha out of which 0.1050 has been encroached by the respondent no.1. In response, the respondent nos. 1 to 6 has filed a joint counter affidavit in which they aver that plot no.588 was originally recorded in the name of the petitioner’s father. Since there were no medical facility in Lachung, the petitioner’s father came forward along with the then ‘Pipon’ of Lachung ‘Zumsa’ and proposed to gift his land to the Government of Sikkim for the establishment of the Primary Health Sub-Centre (PHSC). Accordingly, the Government of Sikkim in the year 1987-88 established a PHSC on plot no.588 by constructing a wooden structure. The learned counsel for the petitioner submits that the act of the respondents of illegally taking over the petitioner’s land and constructing the structures thereon is in the teeth of Article 300A of the Constitution of India. He further submits that the unverifiable claim of the respondents that his father had made an oral gift of plot no.588 to the Government of Sikkim for the construction of PHSC is not only without any proof thereof but barred by Section 123 of the Transfer of Property Act, 1882. The learned judge Bhaskar Raj Pradhan held that at plot no. 588 is recorded in the name of the petitioner and earlier in the name of his late father is not disputed. “The Supreme Court in Gomtibai & Ors. Vs. Mattulal [AIR 1997 SC 127] examined whether an intention to give the land by gift created valid title in law and held that gift of immovable property should be made only by transferring the right, title and interest by the donor to the done by a registered instrument signed by or on behalf of the donor and must be attested by at least two witnesses.” Further, relying on various Supreme court and high court judgments the learned judge held that Although the respondents have taken a plea of oral gift by the petitioner’s father there is no record to evidence such a gift. In any case, Section 123 of the Transfer of Property Act, 1882 provides that for the purpose of making gift of immovable property, the transfer must be affected by registered instrument signed by or on behalf of the donor and attested by at least two witnesses. The State, this court is certain, were aware of the law. Oral gifts of immovable property cannot be made and mere delivery of possession without a written instrument cannot confer title. Although the respondent’s claim that the oral gift was made by the petitioner’s father pursuant to which the PHSC had been built and functioning since 1987-88, the respondents admit that the plot no.588 continued to remain in the name of the petitioner’s father until it was mutated in the petitioner’s name. It is not in dispute that the respondents have constructed PHSC on the area encroached by them at a substantial cost. The respondents are therefore, directed to initiate acquisition proceedings under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. Thus, the writ petition was allowed.

THE HIGH COURT OF SIKKIM: GANGTOK Civil Extra Ordinary Jurisdiction) SINGLE BENCH: HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN JUDGE W.P.No. 420 Tenzing Samchok Bhutia S o Late Pema Rinzing Bhutia R o Sela Inn Lodge Phaka Lachung P S Lachung North Sikkim. Presently residing at Indira Bye Pass Gangtok East Sikkim. ….. Petitioner Government of Sikkim Through the Secretary Tashiling Secretariat Gangtok Sikkim 737101. 1. Health Care & Family Welfare Department Land Revenue & Disaster Management Department Government of Sikkim Through the Secretary Tashiling Secretariat Gangtok Sikkim 737101. 3. District Collector North District Administrative Centre Mangan North Sikkim 737116. 4. Chief Medical Officer North Mangan District Hospital Mangan North Sikkim 737116. Sub Divisional Magistrate Chungthang Sub Division Chungthang North Sikkim 737120. State Public Information Officer Health Care & Family Welfare Department Tashiling Secretariat Gangtok Sikkim 737101. ….. Respondents W.P.No. 420 Tenzing Samchok Bhutia vs. Health Care & Family Welfare Department & Ors. Application under Article 226 of the Constitution of India. Mr. Kazi Sangay Thupden Mr. Varun Pradhan and Mr. Sudhir Prasad Advocates for the Petitioner. Mr. Sudesh Joshi Additional Advocate General with Mr. Sujan Sunwar Assistant Government Advocate for the Date of hearing Date of pronouncement JUDGMENT Bhaskar Raj Pradhan J. The petitioner belongs to a Scheduled Tribe. He is a resident of Phaka Lachung North Sikkim. According to him in the year 2018 he learnt while initiating construction in his property i.e. plot no.588 that the respondents had constructed three structures in his property measuring 0.1480 Hectares15 930 square feet) by acquiring an area approximately 0.1050 Ha without following the provisions of the Land Acquisition Act 2013. The writ petition has been filed by the petitioner seeking a mandamus against the Health Care and Family Welfare Departmentand Land Revenue and Disaster Management Department of the Government of Sikkim to initiate proceedings under the Land Acquisition Act 2013 for paying compensation and to allow access to the remaining land belonging to him of plot no.588. W.P.No. 420 Tenzing Samchok Bhutia vs. Health Care & Family Welfare Department & Ors. The petitioner avers that when he learnt about the construction he made a representation on 18.09.2018 to the Sub Divisional Magistratepursuant to which a spot verification report dated 23.10.2018 was prepared by the Revenue Surveyor stating that the respondent no.1 had encroached an area of 0.1050 Ha and constructed two RCC structures and one wooden structures in the property bearing plot no.588 recorded in the name of the petitioner. It was further stated that as per the land records the plot has a total area of 0.1480 Ha out of which 0.1050 has been encroached by the respondent no.1. This fact was informed by the respondent no.5 to the District Collector vide file noting dated 02.11.2013. As per the direction of the respondent no.3 a sketch map was also prepared showing the area acquired by respondent no.1 and the construction laid therein. On 7.01.2019 the respondent no.3 informed the respondent no.2 about the representation made by the petitioner and the observation of the joint inspection conducted on 25.10.2018 in which it is recorded that neither the office of respondent no.5 nor his office has any records of acquisition of the said plot. On 22.01.2019 the respondent no.2 wrote to the respondent no.1 to forward all the relevant documents pertaining to the said plot. On 11.02.2019 another joint inspection was conducted in which it was also found that the respondent no.1 had occupied a portion of land from plot no.588 measuring 0.1050 Ha recorded in the name of W.P.No. 420 Tenzing Samchok Bhutia vs. Health Care & Family Welfare Department & Ors. the petitioner as per the land records and two RCC structures has been constructed in the year 2017 2018 and that there was an old existing wooden structure. The petitioner wanted more information and sought for it from the State Public Information Officer of the respondent no.1 by his application dated 24.01.2020 however to no avail in spite of reminder dated 06.10.2020 compelling the petitioner to approach this court. The respondent nos. 1 to 6 has filed a joint counter affidavit in which they aver that plot no.588 was originally recorded in the name of the petitioner’s father. Since there were no medical facility in Lachung the petitioner’s father came forward along with the then ‘Pipon’ of Lachung ‘Zumsa’ and proposed to gift his land to the Government of Sikkim for the establishment of the Primary Health Sub Centre Accordingly the Government of Sikkim in the year 1987 88 established a PHSC on plot no.588 by constructing a wooden structure. The respondents are since then owners of the property gifted by the petitioner’s father. During the earthquake of September 2011 the wooden PHSC suffered severe damage and was found to be unfit for use because of which the cabinet vide memorandum no.920 HC HS & FW 12 13 dated 07 06 2012 approved the reconstruction of Lachung PHSC and Class II double unit quarter for an estimated cost of Rs.1 29 82 643 from the funds made available from the Prime Minister’s Relief Fund. The respondents awarded the work of the construction of W.P.No. 420 Tenzing Samchok Bhutia vs. Health Care & Family Welfare Department & Ors. the new PHSC at Lachung to one local contractor Dewang Wangchuk Lachungpa on the recommendation of the Lachung ‘Zumsa’. The reconstruction of the PHSC commenced on 25.01.2013 was completed on 19.03.2018 and inaugurated on 23.07.2018. Although the plot had been gifted by the petitioner’s father the land continued to be recorded in his name in the record of rights. Respondents plead that although the petitioner was aware of the gift he caused the mutation of plot no.788 in his name in the year 2018 and started claiming it from the year 2020. It is the respondent’s case that the gift was an oral gift. The petitioner has chosen not to file rejoinder. 5. Mr. Kazi Sangey Thupden learned counsel for the petitioner submits that the act of the respondents of illegally taking over the petitioner’s land and constructing the structures thereon is in the teeth of Article 300A of the Constitution of India. He further submits that the unverifiable claim of the respondents that his father had made an oral gift of plot no.588 to the Government of Sikkim for the construction of PHSC is not only without any proof thereof but barred by Section 123 of the Transfer of Property Act 1882. Relying upon the judgment of the Supreme Court in Vidya Devi vs. State of Himachal Pradesh1 he argued that in a case like the present one of continuing cause of action plea of delay and latches cannot be raised and 12 SCC 569 W.P.No. 420 Tenzing Samchok Bhutia vs. Health Care & Family Welfare Department & Ors. compensation can be granted. It was further argued that adverse possession as a plea of the State justifying forcible expropriation of a private property by the State without following any procedure or compensation cannot be countenanced. He referred to Jilubhai Nanbhai Khachar vs. State of Gujarat2 in which the Supreme Court had explained the phrase “deprived of his property” in Article 300A of the Constitution of India. The learned Additional Advocate General reiterated the facts stated in the counter affidavit in which it was claimed that plot no.588 had been gifted by the petitioner’s father and the very fact that the petitioner had not taken exception to the construction of the PHSC till 2020 when he approached this court does reflect that he was in fact aware of the oral gift. He further submitted that since the present case involves disputed question of facts the petitioner should be directed to approach the civil court instead. The relevant facts are however not in dispute. That plot no. 588 is recorded in the name of the petitioner and earlier in the name of his late father is not disputed. The ‘parcha khatiyan’ filed by the petitioner records the name of the petitioner as a right holder of plot no.588. The ‘parcha khatiyan’ was evidently prepared on 19.03.2018. The spot verification report dated 25.10.2018 records the encroachment of an area of 0.1050 Ha 2Supp 1 SCC 596 W.P.No. 420 Tenzing Samchok Bhutia vs. Health Care & Family Welfare Department & Ors. from plot no.588 by respondent no.1 and construction of two RCC structure and one wooden structure therein. So does the sketch map prepared by the Revenue Surveyor and the joint inspection report dated 11.02.2019. It is also not disputed that the respondent no.1 had in fact started constructed of the PHSC on a portion of plot no.588 in the year 2013 and completed the same in the year 2018. The State Public Information Officer under the Right to Information Act 2005 under the respondent no.1 chose silence over divulgence of information which was his statutory duty in spite of the reminder dated 06.10.2020. The Supreme Court in Gomtibai& Ors. Vs. Mattulal Dead)3 examined whether an intention to give the land by gift created valid title in law and held that gift of immovable property should be made only by transferring the right title and interest by the donor to the donee by a registered instrument signed by or on behalf of the donor and must be attested by at least two witnesses. It was further held that in the absence of any registered instrument of gift and acceptance thereof by the donee the said property could not be said to have been legally transferred in favour of the person as the gift is not complete in the eye of law. 3 AIR 1997 SC 127 W.P.No. 420 Tenzing Samchok Bhutia vs. Health Care & Family Welfare Department & Ors. In Renikuntla Rajamma vs. K. Sarwanamma4 the Supreme Court held that Section 123 regulates the mode of making a gift and inter alia provides that a gift of immovable property must be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. Section 123 makes transfer by a registered instrument mandatory this is evident from the use of the word “transfer must be effected” used by Parliament in so far as immovable property is concerned. 10. In Daulat Singhvs. State of Rajasthan5 the Supreme Court held that Section 123 provides that for a gift of immovable property to be valid the transfer must be effectuated by means of a registered instrument bearing the signature of the donor and attested by at least two witnesses. 11. In Wg Cdr.R.N. Dawar vs. Ganga Saran Dhama6 the Delhi High Court held that under Section 123 of the Transfer of Property Act 1882 a gift of immovable property which is not registered is bad in law and cannot pass any title to a donee. Any oral gift of immovable property cannot be made in view of the provisions of Section 123 of the Transfer of Property Act 1882. Mere delivery of possession without written instrument cannot confer any title. 49 SCC 445 53 SCC 459 6 AIR 1993 Del 19 W.P.No. 420 Tenzing Samchok Bhutia vs. Health Care & Family Welfare Department & Ors. 12. Although the respondents have taken a plea of oral gift by the petitioner’s father there is no record to evidence such a gift. In any case Section 123 of the Transfer of Property Act 1882 provides that for the purpose of making gift of immovable property the transfer must be affected by registered instrument signed by or on behalf of the donor and attested by at least two witnesses. The State this court is certain were aware of the law. Oral gifts of immovable property cannot be made and mere delivery of possession without a written instrument cannot confer title. Although the respondent’s claim that the oral gift was made by the petitioner’s father pursuant to which the PHSC had been built and functioning since 1987 88 the respondents admit that the plot no.588 continued to remain in the name of the petitioner’s father until it was mutated in the petitioner’s name. If at all such an intention to gift was there there was no reason for the respondent no.1 not to have the property transferred to their name during the lifetime of the petitioner’s father. Even after the death of the petitioner’s father when the petitioner caused the entry in the ‘parcha khatiyan’ changed to his name no steps seems to have been taken by the respondent to have cancelled. No contemporaneous record has been filed by the respondents to even suggest the correctness of the plea of oral gift as stated in the counter affidavit. It is quite obvious that no such record is available. W.P.No. 420 Tenzing Samchok Bhutia vs. Health Care & Family Welfare Department & Ors. 13. The Transfer of Property Act 1882 was brought into force in Sikkim w.e.f. 01.09.1984 vide S.O. 643(E) dated 24.08.1984. Thus it is clear that on and from the enforcement of the Transfer of Property Act 1882 oral gifts would also be prohibited in the State of Sikkim under Section 123 thereof. The respondents being the State are precluded from taking a position contrary to law and in ignorance of law. Thus the very foundation of the respondents stand is based on an illegality. 14. Although the mere entry in the ‘parcha khatiyan’ does not confer title upon the petitioner the respondents have not shown better title. Admittedly the ‘parcha khatiyan’ was earlier in the name of the petitioner’s father and thereafter in the petitioner’s name. Quite evidently the respondent has constructed the PHCS on the land owned by the petitioner after encroaching it as per the spot verification report as well as the joint verification report conducted by the officers of the respondents. The fact that neither the petitioner’s father nor the petitioner seem to have protested the construction of the PHSC in plot no.588 owned by them over a long period of time does seem to indicate that the respondents were permissive users. However this is not the stand taken by respondents. Consequently there has been violation of the petitioner’s constitutional right under Article 300A. W.P.No. 420 Tenzing Samchok Bhutia vs. Health Care & Family Welfare Department & Ors. 15. The only question that remains is the nature of relief which may be granted to the petitioner. In Anakh Singh vs. State of H.P.7 the High Court of Himachal Pradesh considered a similar case in which the petitioner’s land had been used by the respondent State for the construction of the road but no compensation in accordance with law had been paid to them. The High Court directed the respondent State to notification under Section 4 of the Land Acquisition Act 1894 within a period of three months and thereafter to complete the entire process within a period of one year. In Vidya Devi the Supreme Court considered the judgment of the High Court of Himachal Pradesh. The State respondent in Vidya Devi was directed to pay compensation on the same terms as awarded by the reference court vide order dated 07.07.2015 in Anakh Singh case along with all the statutory benefit including solatium interest etc. within a period of eight weeks treating it as a case of deemed acquisition. In Vidya Devi the Supreme Court noticed that similarly situated persons like the petitioner therein whose land has been taken over by the respondent State for some public purpose had approached the writ court claiming compensation before the High Court which directed the 7SCC OnLine HP 220 W.P.No. 420 Tenzing Samchok Bhutia vs. Health Care & Family Welfare Department & Ors. respondent State to acquire the land of the writ petitioner under the Land Acquisition Act 1894. 16. In the present case also there was no acquisition proceeding. It is not in dispute that the respondents have constructed PHSC on the area encroached by them at a substantial cost. The respondents are therefore directed to initiate acquisition proceedings under the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act 2013 for the area of 0.1050 Ha of plot no.588 and pay fair compensation to the petitioner within a period of one year from the date of the judgment. The respondents are also directed to ensure that the petitioner has free ingress and egress to the remaining portion of plot no.588 which stands in the name of the petitioner. The writ petition is allowed. In the circumstances no order as to cost. Bhaskar Raj Pradhan ) Judge Approved for reporting:Yes No :Yes No Internet

The mere assertion that the vehicle was being moved at a high speed does not be talked about any negligence or rashness by itself: Tripura High Court

The mere declaration that the vehicle was driven at a high speed is not a reference to either negligence or rapidity. There are, of course, certain constitutional exceptions to criminal activities which cannot be inferred. The Court finds that in the current situation there is no such constitutional exception. Without any recorded content, the maximum “res ipsa loquitur” cannot be used to detect any presumption of negligence or negligence. The judgement was passed by the High Court of Tripura in the case of Bibisan Debnath v. The State of Tripura [CRL. A. NO.38 OF 2019] by Single Bench consisting of Hon’ble Justice MR. Arindam Lodh. The facts of the case are on one night about at Kalaban, Udaipur the appellant was driving his vehicle rashly and negligently and caused an accident wherein one person died. Further, he was convicted under Sections 304A/338/337/279 of IPC, by the learned court. Aggrieved by the judgment the appellant has filed the petition in this court. At the hearing, the learned Judge of Sessions reviewed a total of 28 testimonies. When the testimony of the prosecution’s witnesses was closed, the defendant was investigated by the prosecution’s witnesses following Article 313 of CrPC, who pled innocence to the prosecution as he was made aware of the incriminating materials and facts against him. It is further revealed from the depositions of witnesses that when the vehicle was in a running condition, its front wheel came out of the axle which was the main reason causing the accident. The learned Sessions Judge had also observed in his judgment that he looked at the seizure list, by which the defaulting vehicle was seized and he found that at the time of seizure two front wheels were detached. The place of occurrence also remained undisputed as would be evident from the hand sketch map of the place of occurrence and it appeared that the accident took place in mid-point of public road and opposite directions, i.e. front and back sides there were tri-junctions. The evidence also had disclosed that the accident took place at a turning point. The hand sketch map of the place of occurrence had further revealed that just adjacent to the road there was lunga land covered by jungles.

HIGH COURT OF TRIPURA CRL. A. NO.38 OF 2019 Sri Bibisan Debnath S O Sri Khokan Debnath of Rajapur P.S. Santirbazar District South Tripura. The State of Tripura ….. Convict Appellant(s) ….. Respondent(s) HON’BLE MR. JUSTICE ARINDAM LODH For appellant(s) For respondent(s) Mr. A. Acharjee Advocate Mr. S. Debnath Addl. P.P. Date of hearing and delivery of Judgment & Order Whether fit for reporting JUDGMENT & O R D E RThe instant appeal arises out of the judgment and conviction and sentence dated 06.09.2019 passed by the learned Addl. Sessions Judge Gomati Judicial District Udaipur in connection with case No.S.T 79(GT U ) of 2014(T 1) whereby and whereunder the appellant has been convicted under Sections 304A 338 337 279 of IPC and sentenced himto suffer RI for one year and to pay a fine of Rs.5 000 in default to suffer further RI for three months for the offence under Section 304A to suffer RI for six months and to pay a fine of Rs.500 in default to suffer further SI for two months for the offence under Section 338 of IPC to suffer RI for two months and to pay a fine of Rs.300 in default to suffer further SI for one month for the offence under Section 337 of IPC andto suffer RI for one month and to pay a fine of Rs.200 in default to suffer further SI for ten days for the offence under Section 279 of IPC. It was also directed that all the sentences shall run concurrently. Prosecution case in brief is that on 21.02.2014 at night about 2400 hrs. at Kalaban Udaipur on Garjee Tulamura Road under R.K. Pur P.S. Gomati District the accused appellant was driving his vehicle bearing No.TR 03 2563(Commander Jeep) rashly and negligently and caused an accident wherein one person died. The Officer In Charge on being receipt of the complaint lodged by one Ratan Jamatia carried out investigation. During the process of investigation he recorded the statements of the available witnesses under Section 161 of CrPC sent the body for post mortem examination prepared the inquest report. On completion of investigation the investigating officer having found prima facie case against the appellant had filed charge sheet under Sections 279 337 338 304 Part II of IPC. On receipt of the charge sheet the case was committed to the Court of learned Sessions Judge which was transferred to the Court of learned Addl. Sessions Judge Gomati District Udaipur. Initially charges were framed against the appellant under Sections 279 338 304 Part II and subsequently Section 304A IPC was added. Trial was undertaken. In course of trial the learned Addl. Sessions Judge had examined as many as 28 numbers of witnesses. On closure of recording of evidence of the prosecution witnesses the appellant was examined under Section 313 of CrPC where he pleaded to be innocent when he was noticed about the incriminating materials and evidences surfaced against him by the prosecution witnesses. It is also necessary to be noted that the appellant had adduced four numbers of witnesses including him. Having heard learned counsels and considering the materials on record the learned Additional Sessions Judge had held the appellant as guilty of committing offence under Sections 304A 338 337 279 of IPC and sentenced him as afore stated. Hence this appeal. Heard Mr. A. Acharjee learned counsel appearing for the convict appellant as well as Mr. Sumit Debnath learned Addl. P.P. appearing for the respondent State. The owner of the offending vehicle was examined by the prosecution as PW4 but PW4 did not state about taking of leave by the appellant before the date of accident. Defence also did not put any question to PW4 regarding taking of any leave by the accused from him before the accident. It is necessary to mention herein that the appellant by way of adducing evidence on his behalf has tried to project his case that at the time of accident he was on leave and he was not driving the vehicle as alleged. As I said earlier that no question was put to the owner from the side of the defence denying the fact that he was on leave in my opinion the learned Addl. Sessions Judge has correctly held that the appellant was not on leave on the fateful night when the accident had occurred. 10. After going through the evidence of DWs I find that all the witnesses were his close relatives. The convict appellant had failed to bring any independent person to support his claim that he was not driving the vehicle at the relevant point of time. 11. The first informant i.e. PW21 has specifically stated that the deceased Amit Jamatia was his younger brother who died in the accident in the night of 21.02.2014 at Kalaban. As per his evidence he along with his younger brother with other persons attended the marriage ceremony of his sister by hiring commander jeep vehicle bearing No.TR 03 2563 and at the time of return the said vehicle met an accident at Kalaban as the driver appellant was inebriated and was driving the vehicle at excessive speed and in spite of being cautioned to drive slowly he did not pay any heed. 12. After perusal of the depositions of PWs 12 13 16 18 24 and 26 who boarded the aforesaid offending vehicle it is found that all of them had corroborated the said statements of PW21. 13. It is further revealed from the depositions of PWs 16 and 24 that when the vehicle was in a running condition its front wheel came out of the axle which was the main reason of causing the accident. The learned Addl. Sessions Judge had also observed in his judgment that he looked at the seizure list by which the defaulting vehicle was seized on 22.02.2014 and he found that at the time of seizure two front wheels were detached. The place of occurrence also remained undisputed as would be evident from the hand sketch map of the place of occurrence and it appeared that the accident took place in mid point of public road and in opposite directions i.e. front and back sides there were tri junctions. The evidence also had disclosed that the accident took place at the turning point. The hand sketch map of the place of occurrence had further revealed that just adjacent to the road there was lunga land covered by jungles. 14. After careful perusal of the evidence and materials on record I find that none of the prosecution witnesses had deposed that the appellant was driving the vehicle rashly and negligently which are the main ingredients of punishing an accused under Sections 227 337 338 304A of IPC. Mere statement that the vehicle was being driven at a “high speed” does not be spoken of either “negligence” or “rashness” by itself. Criminality is not to be presumed subject of course to some statutory exceptions. I find that 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” can be drawn by invoking the maxim “res ipsa loquitur”. 15. In the instant case in absence of any assertions regarding rash and negligent driving I find it difficult to uphold the conviction and sentence as imposed by the learned Addl. Sessions Judge upon the appellant. 16. Having held so the impugned judgment and order convicting and sentencing the appellant as afore stated stands set aside. It is informed that the appellant is on bail. As such he has been discharged from his bail bond. His surety also stands discharged. Accordingly the appellant is acquitted. 17. The instant appeal stands allowed. Send down the LCRs.

Rule 5 (c) (iii) of HRA Rules restricts a Government servant to claim HRA if their spouse is allotted accommodation by an Autonomous Public Undertaking: High Court of Delhi

According to Rule 5 (c) (iii) of HRA Rules, Government servant shall not be entitled to House Rent Allowance if his wife/her husband has been allotted accommodation at the same station by the Central Government, State Government, an Autonomous Public Undertaking or semi-Government Organization such as Municipality, Port Trust, etc. whether he/she resides in that accommodation or he/she resides separately in accommodation rented by him/her. These were stated by High of Delhi, consisting Justice Rajiv Shakdher in the case of Jayabrata Bose vs. Union of India & Anr. [W.P.(C) 10992/2021] on 19.01.2022. The facts of the case are that the petitioner was a Group A Government officer posted in Delhi and his wife who is an employee of Indira Gandhi National Open University (IGNOU) was also posted at Delhi and she was allotted a residential accommodation since July, 2003. Petitioner was residing with his wife but on 15.05.2007, he informed his department that he had shifted to his own flat at Shipra Sun City, Indirapuram, Ghaziabad but his wife continued to stay at her official accommodation in IGNOU Campus due to her work-related exigencies. The petitioner was granted House Rent Allowance (HRA) w.e.f. May 2007. On 03.03.2016, when petitioner was posted in Delhi Milk Scheme, a complaint was made regarding HRA being claimed by the petitioner. The authorities then decided that petitioner is not entitled to HRA as per para 5 (c) (iii) of HRA Rules, as his wife was employed in IGNOU. Further, payment of HRA was stopped and recovery of the already disbursed amount of Rs.13,76,697 for the period from May, 2007 to March, 2017 was ordered to be made. The petitioner, then, challenged the aforesaid order being arbitrary, illegal, discriminatory and against the spirit of Article 14 of the Constitution of India. The Counsel for the petitioner contended that IGNOU is a university and the accommodation provided to his wife is not covered under the definition of government accommodation as this is neither a government department nor a government body and even if his wife lives in the accommodation provided by IGNOU, he is still entitled to HRA if he lives in his own house. Accommodation allotted to the wife of the petitioner is not covered under Rule 5 (c)(iii). It was further submitted since HRA was paid for the last eight years and it was not a case of any misrepresentation practiced by government employee on the department, it would be too harsh to take a view to recover the said amount from him. The Counsel for the respondent contended that the applicant was fully aware of the rule position. It was the applicant/petitioner who represented to the employer at the relevant time i.e., Tariff Commission that he was entitled to HRA although the same was not admissible to him as he was living in an accommodation allotted to his wife by IGNOU. It was further submitted that the Tariff Commission had informed that the case of releasing the HRA to the petitioner was neither processed nor examined in the light of para 5 (c)(iii) of HRA Rules and no formal order was issued for releasing the HRA to the petitioner. The petitioner had received undue benefit in the form of HRA till March, 2017. It was also submitted by the counsel that IGNOU is a central government autonomous body, which was set up by Ministry of HRD and it is receiving funds through budgetary support, therefore, it is covered in para 5 (c)(iii) of conditions for grant of HRA. The High Court of Delhi held that since the petitioner does not belong to Group C or Group D service and he is part of Group A service of the Government and it is not a case where the department on its own had paid the amount under some misconception. Whereas, this is a case where petitioner himself had induced the department to make him payments of HRA, which resulted in the government department to release him HRA w.e.f. May, 2007. The order passed by the department is neither harsh nor arbitrary and it does not trump the employer’s right to recover the money. The Court held that IGNOU is a Central Government autonomous body under the administrative control of Ministry of Human Resource Development and it is funded through budgetary support and being a Central Government Autonomous Body, it is covered under para 5 (c) (iii) of the conditions for granting HRA. The Court therefore, did not find any illegality or infirmity in the order passed by learned CAT. The writ petition was accordingly dismissed.

J 1 IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(C) 10992 2021 & CM No. 33854 2021 Reserved on: 28.09.2021 Decided on: 19.01.2022 JAYABRATA BOSE Through: Mr. A. K. Srivastava Adv. ..... Petitioner UNION OF INDIA & ANR. ..... Respondents Through: Mr. Subhra Prashar Advocate for HON BLE MR. JUSTICE RAJIV SHAKDHER HON BLE MR. JUSTICE TALWANT SINGH TALWANT SINGH J.: The petitioner has challenged the final order dated 03.09.2021 passed in OA No. 862 2019 by the learned Central Administrative Tribunal hereinafter referred to „the CAT‟) Principal Bench New Delhi. In brief the case of the petitioner is that he was a Group „A‟ Government officer posted in Delhi and his wife who is an employee of Indira Gandhi National Open Universityalso posted at Delhi and she was allotted a residential accommodation since July 2003. Petitioner was residing with his wife but on 15.05.2007 he informed his department that he had shifted to his own flat at Shipra Sun City Indirapuram Ghaziabad but his wife continued to stay at her official accommodation in IGNOU Campus due to her work related exigencies. The petitioner was granted House Rent Allowancew.e.f. May 2007. On 03.03.2016 when petitioner was posted in Delhi Milk Scheme a W.P(C) 10992 2021 Pg. complaint was made regarding HRA being claimed by the petitioner. The authorities then decided that petitioner is not entitled to HRA as per para 5 c) of HRA Rules as his wife was employed in IGNOU. Further payment of HRA was stopped and recovery of the already disbursed amount of Rs.13 76 697 for the period from May 2007 to March 2017 was ordered to be made. The petitioner then challenged the aforesaid order being arbitrary illegal discriminatory and against the spirit of Article 14 of the Constitution of India before CAT by filing OA No. 862 2019. Prior thereto the petitioner had submitted a representation to his department on 11.04.2017 it was rejected on 14.02.2019. During the pendency of the OA filed by the petitioner recovery was stayed vide order dated 25.03.2019. The petitioner retired from service on 31.01.2021. On 03.02.2021 an amount of Rs.13 76 697 was withheld by respondents out of his retiral benefits. The OA filed by the petitioner was dismissed on 03.09.2021. Hence the present petition was filed. 6. We have heard arguments for admission of the writ petition on 28.09.2021 and our considered view is as under. The CAT while dismissing the OA filed by the petitioner observed as under: “9.…The main contention of the applicant has been that the residential accommodation provided to his spouse in IGNOU Campus cannot be considered as Government accommodation as the Universities cannot be considered as Government Department or Government bodies. In support of his claim he has relied upon the aforesaid judgments of the Hon‟ble Karnataka High Court and this Tribunal. The fact however remains that IGNOU is an autonomous body under the Central Government Ministry of Human Resource Development and is fully funded by budgetary support. It is also a fact that this aspect has also been clarified in OM dated 03.04.2017 by W.P(C) 10992 2021 Pg. Department of Expenditure {E.II Division} vide ID No.2 2 2016 E.IIdated 15.09.2016 as under: Cost) would qualify as “It is clarified that as both the officer & his wife are posted at Delhi and his wife has been allotted residential accommodation at the same station by IGNOU which is an Autonomous Body under the administrative control of Ministry of Human Resource Development and is funded by the Central Government it would imply that accommodation provided to spouse of notwithstanding the judgments of CAT Mumbai Bench the reply dated 07.03.2016 30.03.2016 furnished by the officer in response to the clarification the same were sought by DMS DoAHD&F since applicable to only the applicants in those OAs. Therefore HRA to the officer becomes inadmissible from the date his spouse has been provided accommodation by IGNOU even though the officer may desire to live separately at Ghaziabad” 10. With this clarification the claim of the applicant that the rules of Central Government accommodation are not applicable to the accommodation provided by IGNOU is not tenable. At the same time it is also a fact that the applicant was aware that he was staying with his wife who was allotted Government accommodation since 2003. If it is his contention that the accommodation provided by IGNOU is not at par with the Central Government accommodation then he should have claimed HRA even for the period from 2003 to 2007. The very fact that he did not claim the HRA during this period clearly accommodation provided to his wife he is not entitled for HRA. Therefore as per his own submission by shifting out from Government accommodation allotted to his wife at IGNOU Campus and to stay in his own flat at Indirapuram Ghaziabad he cannot claim HRA as both the husband and wife are posted in Delhi and Government accommodation having been allotted to one of them the same does not entitle the other one to claim the same. The contention that this excess payment of HRA has been made by the Government on that he was well aware that by staying W.P(C) 10992 2021 Pg. its own accord and therefore he is not responsible for the excess payment made to him cannot be sustained as he has himself in the year 2007 advised the department that for logistical and personal reasons he will be staying in his own flat and therefore he should be given HRA from 2007. This claim of the applicant is therefore self contradictory to each other. It is also not his case that since he has retired therefore no recoveries should be made for the excess payment. This was clearly stated to him vide OM dated 03.04.2017 much before his retirement to which he has also made representation to the Competent Authority. The same was rejected vide OM impugned order dated 14.02.2019. It is also a fact that as far as the judgment of Hon‟ble Apex Court in Rafiq Masih’s case is concerned the same has been dealt with in DoP&T OM dated 02.03.2016 and guidelines have been provided for processing such cases. It is clearly stated that these cases should also be referred to Department of Expenditure. In the applicant‟s case his representation has been considered by the Department of Expenditure and rejected. It is thus evident that the applicant has knowingly claimed inadmissible HRA for the period May 2007 to March 2017. This excess payment has been worked out and is to be recovered from the applicant in terms of OM dated 03.04.2017 and impugned order dated 14.02.2019. The applicant being a Senior Group „A‟ Officer was expected to follow the extant rules and regulations and be aware of the wilful inadmissible claim of HRA. 11. In view of the above I do not find any infirmity or illegality in the impugned orders dated 03.04.2017 and 14.02.2019 passed by the respondents towards recovery of excess payment of HRA. The OA is accordingly dismissed. The interim relief granted vide order dated 25.03.2019 also stands vacated. Pending MA also stands disposed of. There shall be no order as to costs”. As noted above the main contention of the petitioner is that IGNOU is a university and the accommodation provided to his wife is not covered under the definition of government accommodation as this is neither a government department nor a government body. W.P(C) 10992 2021 Pg. 9. The petitioner was a member of Indian Costs and Accounts Service. He was well aware about the Government rules and Office Memorandums issued from time to time. The applicable rule in this regard is reproduced A Government servant shall not be entitled to House Rent “Conditions for Drawl of House Rent Allowance he shares Government accommodation allotted rent free 5. … Allowance If to another Government servant or he she resides in accommodation allotted to his her parents son daughter by the Central Government State Government an Autonomous Public Undertaking or semi Government Organization such as a Municipality Port Trust Nationalized Banks Life Insurance Corporation of India etc. iii) his wife her husband has been allotted accommodation at the same station by the Central Government State Government an Autonomous Public Undertaking semi Government Organization such as Municipality Port Trust etc. whether he she resides that accommodation or he she resides separately in accommodation rented by him her.” 10. The case of the petitioner falls under Rule 5(iii) of HRA Rules. It has been time and again reiterated by the learned counsel for the petitioner that the University i.e. IGNOU is neither the department of the Central Government nor State Government nor an autonomous body undertaking nor a semi government organization such as Municipality Port Trust etc. and as such even if his wife lives in the accommodation provided by IGNOU he is still entitled to HRA if he lives in his own house. 11. The CAT has rightly noted is believed accommodation allotted to the wife of the petitioner is not covered under Rule 5and even if the petitioner resides with his wife he was still entitled to HRA then why he had not claimed the HRA for the period W.P(C) 10992 2021 Pg. during which he was residing with his wife from July 2003 to April 2007 in the official accommodation allotted to her. The act of the petitioner of not claiming the HRA during the said period clearly establishes that he was well aware that if he stays in the accommodation allotted by IGNOU to his wife he could not have claimed HRA. The petitioner had written a letter dated 15.05.2007 to the Secretary Tariff Commission where he was posted at the relevant time by which he had informed his decision to live separately from his wife at his own house at Shipra Sun City Indirapuram Ghaziabad. The said letter is reproduced hereunder: The Secretary Tariff Commission Lok Nayak Bhawan New Delhi 110003. Sub: Granting of House Rent Allowance Request for Sir This is to inform that I have shifted to my own house no.8 12 KAD at Shipra Sun City Indirapuram Ghaziabad for which regular deduction is being made from the salary towards HRA. Further it is informed that my wife is an employee of the IGNOU a university established under an Act of Parliament. Her service is governed by the rules framed in possession of She accommodation provided by the IGNOU in the University Campus at Maidan Garhi New Delhi 110068. She is not drawing HRA from IGNOU. It is needless to mention that being in distant mode of education her work profile comprises activities such as Tele Conferencing Phone in radio sessions etc. Schedule of such activities at times extends beyond normal working hours 10992 2021 Pg. Therefore she will continue hours is different from a far off place like Indirapuram accommodation provided by the IGNOU at Maidan Garhi New Delhi 110068 while I shall stay at my own house at Shipra Sun City Indirapuram Ghaziabad. granted House Rent Allowance. In view of the above perspective I may kindly be to occupy Yours faithfully. J. Bose) Deputy Director10992 2021 Pg. mentioning therein that the expression “autonomous bodies” has not been explicitly mentioned in Rule 5which is the governing condition for granting HRA in the case of a couple. As per him the employees working in autonomous organization are not Central Government employees as they are not eligible for Central Government accommodation and in the decision of the Department of Expenditure dated 15.09.2016 the scope of Rule 5 c)(iii) has been expanded and it smacks of discrimination and arbitrariness towards the petitioner. 14. This is not a case where the petitioner can claim that he was an innocent victim of the circumstances rather it is a case where the petitioner himself has created the circumstances which led his employer to believe that he was entitled to claim HRA and later on when it was realized that the petitioner was not entitled to claim the same the employer had no other option but to seek guidance from the Department of Expenditure and as per the advice tendered by Department of Expenditure further payment of HRA was disallowed w.e.f. April 2017 and earlier amount was ordered to be In our view the Tribunal has rightly held that IGNOU is a Central Government autonomous body under the administrative control of Ministry of Human Resource Development and it is funded through budgetary support and being a Central Government Autonomous Body it is covered under para 5 (iii) of the conditions for granting HRA. One has to take note of the word “etc.” used after “Port Trust” which implies that the list of organisations mentioned in para 5 (iii) is not exhaustive and all other Institutions PSUs and Autonomous Bodies are also covered under the ambit of the Rule. W.P(C) 10992 2021 Pg. 16. The OM dated 03.04.2017 quotes the earlier advice given by the Department of Expenditure regarding admissibility of the HRA and it was mentioned as under: “It is clarified that as both the officer & his wife are posted at Delhiand his wife has been allotted residential accommodation at the same station by IGNOU which is an Autonomous Body under the administrative control of Ministry of Human Resource Development and is funded by the Central Government it would imply that accommodation provided to spouse of Director would qualify as Government Accommodation for the purpose of 5(c)(iii) notwithstanding the judgments of CAT Mumbai Bench quoted in the reply dated 07.03.2016 30.03.2016 furnished by the officer in response to the clarification sought by DMS DoAHD&F since the same were applicable to only the applicants in those OAs. Therefore HRA to the officer becomes inadmissible from the date his spouse has been provided accommodation by IGNOU even though the officer may desire to live separately at 17. The petitioner has placed reliance on the judgment of CAT Mumbai Branch dated 28.10.2010 in OA No. 311 2010 titled Dr. Vrinda V. Khole vs. Indian Council of Medical Research. In the said judgment the CAT has held that in earlier case of Registrar of Mumbai University the department had complied with the judgment of the CAT dated 26.10.1994 passed in OA No. 822 1991 titled Sharda Gajanan Rajarshi vs. Union of India & Others. Hence in the case in hand where husband of the petitioner was appointed Vice Chancellor of Mumbai University the petitioner was still entitled to HRA. The Department of Expenditure was fully conscious of the said judgments and it was held that the said judgments were applicable only to the applicants in the said OAs. Hence in the view of the Department of Expenditure the said judgments were not the judgments in rem rather they W.P(C) 10992 2021 Pg. were confined to the cases in hand and were delivered in the facts and circumstances of the respective cases. 18. The petitioner has also relied upon judgment of High Court of Karnataka dated 08.11.2010 in W.P(C)17926 2003 titled ESIC & Anr. vs. Sri B.D. Patted. In the said judgment it was held that since HRA was paid for the last eight years and it was not a case of any misrepresentation practiced by government employee on the department coupled with the fact that he had retired from service it would be too harsh to take a view to recover the said amount from him. In our view the said judgment was also passed in the peculiar facts and circumstances of the case. The ratio of the judgment is not applicable to the facts of the case as in the present case it was decided to recover the amount from the petitioner when he was still in service and his further claim w.e.f. April 2017 for HRA was duly rejected. In the counter reply filed by the respondent before CAT in the present case it was mentioned the petitioner was asked to deposit Rs.13 76 697 latest by 15.03.2019 when he was still in service after due consideration of the representation submitted by him. The applicant was fully aware of the rule position. It was the applicant petitioner who represented to the employer at the relevant time i.e. Tariff Commission that he was entitled to HRA although the same was not admissible to him as he was living in an accommodation allotted to his wife by IGNOU. It is further submitted that vide letter dated 03.06.2016 the Tariff Commission had informed that the case of releasing the HRA to the petitioner was neither processed nor examined in the light of para 5of HRA Rules and no formal order was issued for releasing the HRA to the petitioner. The petitioner had received undue benefit in the form of HRA till W.P(C) 10992 2021 Pg. 1 March 2017. The matter was examined in detail by Department of Expenditure with regard to the request of the petitioner seeking waiver of recovery of excess amount of Rs.13 76 697 however the competent authority did not allow such waiver of recovery. It is also submitted that IGNOU is a central government autonomous body which was set up by Ministry of HRD and it is receiving funds through budgetary support. As such it is covered in para 5of conditions for grant of HRA. 22. The petitioner applicant had filed rejoinder before CAT in which he has placed reliance on the judgment of Rajasthan High Court dated 16.05.2017 in W.P.(C) 2656 2001 tilted UOI vs. Dr. UB Mathur in which the amount involved was only Rs.55 000 and there was earlier judgment of CAT of Jaipur Bench which was not challenged by the Central Government. Hence on that ground the Rajasthan High Court refused to entertain the challenge to a decision of CAT Jaipur Bench where the applicant was residing in accommodation provided by University of Rajasthan. In our view the said case was also decided in its own peculiar facts and moreover the status of University of Rajasthan is not known as to whether it was receiving budgetary support from the government or it was established by State Government itself. Reliance is also placed by the petitioner on the judgment dated 15.02.2019 in OA 2916 2016 tilted Dr. Vijay Pratap Singh vs. Union of India decided by CAT Principal Bench New Delhi. The main controversy in the said case was that when the husband and the wife were posted at different stations then whether both will be entitled to draw HRA even if living in the same station or not. The ratio of the said judgment is not applicable to the facts of the case as the petitioner lived with his wife and both were posted at the same station and not at different stations as was the case in the matter of Dr. Vijay Pratap SinghW.P(C) 10992 2021 Pg. 1 23. The petitioner has also relied upon a judgment of this Court dated 27.11.2018 in LPA 246 2018 titled T.N. Veeraraghavan vs. Union of India and Anr. where the challenge was to an order of learned Single Judge who had dismissed the writ petition and allowed the government departments to recover the excess amount allegedly paid to the appellants on account of “stagnation increment” when they were in service. In the said case the Hon‟ble Division Bench of this court had relied upon the judgment of Hon‟ble Supreme court in the matter of State of Punjab & Ors. vs. Rafiq Masih etc. in Civil Appeal No. 11527 2014 decided on 18.12.2014. The Hon‟ble Supreme Court has summarised its detail judgment in paragraph 12 which is reproduced hereunder: “12. 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: from employees when Recovery from employees belonging to Class III and Class IV service Recovery from retired employees or employees who are due to retire within one year of the order of the excess iii) Recovery payment has been made for a period in excess of five years before the order of recovery is issued. in cases where an employee has iv) Recovery 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 interior 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 W.P(C) 10992 2021 Pg. 1 extent as would far outweigh the equitable balance of the employer‟s right to recover.” 25. With due respect the case of the petitioner does not fall in any of the classes mentioned in paragraph 12 in the matter of Rafiq Masih 10992 2021 Pg. 1

The Court granted pre-arrest to the petitioners as they were arrested under Sections 341, 323, 324, 379, 307 and 504 of the Indian Penal Code: High Court of Patna

The petitioners apprehended arrest 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 379, “Punishment for theft”, section 307, “Murder attempt” and Section 504 of the Indian Penal Code, 1860, “Intentional insult with intent to provoke breach of the peace”. The petition is in connection with Majhaulia PS Case No. 377 of 2020 dated 01.06.2020. In the High Court of Judicature at Patna, this judgement was given by Honourable Mr Justice Ahsanuddin Amanullah on the 17th of September  2021 in the case of Awasar Dewan @ Asar Dewan and others Versus the State of Bihar, [Criminal Miscellaneous No. 3363 of 2021] Mr Nasrul Hoda Khan represented as the advocate for the petitioner, Mr Jharkhandi Upadhyay, represented the State of Bihar as the additional Public Prosecutor, and Mr Umesh Chandra Verma,  represented as the advocate for the informant, the proceedings of the court were held via video conference. The following are the facts of the case, the petitioners along with others were accused of assaulting the informant and his brother, petitioner no.1 was accused of taking 1Kg. of apple from the cart of the informant and refused to pay and even abused him. Petitioner no.3 took Rs. 4,000 cash from the cart belonging to the informant and petitioner no.4 was accused only in general terms and does not have any specific overt act attributed to him. The counsel representing petitioner no. 1,3 and 4  held that this entire scenario is a trivial issue and has been blown out of proportion associated with a mala fide intention. After investigation, it was held that the injury suffered by the informant was simple. The petitioners are not associated with any assault and they have no criminal antecedent as well. The additional public prosecutor held that petitioner no.1 was guilty of taking away the apples belonging to the petitioner and failed to pay him the same and the and petitioner no.3 was guilty of taking away Rs. 4,000 cash and petitioner no.4 was party to this assault. The counsel representing the informant held that all the petitioners are brothers and had taken part in the assault. However, it is not controverted that the allegations are simple, general and omnibus. The specific allegation is against petitioner no.2 as he caused an injury damaging the skull and grievous injuries were sustained according to the CT scan however the petitioner no.2 is no more a petitioner as he already surrendered before the court. The Honourable Court concluded that “Given the nature of the allegations as also that the petitioners no. 1, 3 and 4 do not have any criminal antecedent, the Court is inclined to allow their prayer for pre-arrest bail. The petitioner no. 1, 3, 4 be released on bail upon furnishing bail bonds of Rs. 25,000/- (twenty-five thousand) each with two sureties of the like amount each to the satisfaction of the learned Chief Judicial Magistrate. Under Section 438(2) of the Code of Criminal Procedure, 1973, (i) that one of the bailors shall be a close relative of the said petitioners, (ii) that the said petitioners and the bailors shall execute the bond and give an undertaking concerning good behaviour of the said and (iii) that the said petitioners shall co-operate with the Court and police/prosecution. The petition stands disposed of in the aforementioned terms.”

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 33621 Arising Out of PS. Case No. 377 Year 2020 Thana MAJHAULIA District West Champaran 1. Awasar Dewan @ Asar Dewan aged about 29 years Male. Fariyad Dewan aged about 23 years Male. Reyajul Dewan aged about 26 years Male. Zazul Dewan aged about 19 years Male All of them are Sons of Md. Muslim. 5. Muslim Dewan aged about 68 years Male Son of Late Khader Dewan All are Resident of Village Dewan Toli Ward No.4 PS Majhaulia District West Champaranfor the State and Mr. Umesh Chandra Verma learned counsel for the informant Patna High Court CR. MISC. No.33621 dt.17 09 2021 4. Learned counsel for the petitioners submitted that during pendency of the case petitioners no. 2 and 5 have surrendered and thus he may be permitted to withdraw the petition on their behalf 5. In view thereof the petition stands disposed of as withdrawn as far as petitioners no. 2 and 5 namely Fariyad Dewan and Muslim Dewan are concerned and is restricted to petitioners no. 1 3 and 4 namely Awasar Dewan @ Asar Dewan Reyajul Dewan and Zazul Dewan 6. The petitioners apprehend arrest in connection with Majhaulia PS Case No. 3720 dated 01.06.2020 instituted under Sections 341 323 324 379 307 and 504 of the Indian Penal Code 1860 7. The allegation against the petitioners and others is of assault on the informant and his brother and specifically against the petitioner no. 1 that he had taken 1 kg. of apple from the cart of the informant and when he refused to pay he had abused him Further against the petitioner no. 3 the allegation is that he had taken away Rs. 4 000 cash from the cart of the informant whereas against petitioner no. 4 there is only general and omnibus allegation of assault without any specific overt act attributed to him Patna High Court CR. MISC. No.33621 dt.17 09 2021 8. Learned counsel for the petitioners no. 1 3 and 4 submitted that the issue is trivial in nature and has been blow out of proportion with mala fide intention. It was submitted that the allegation as far as the petitioners are concerned is not of any assault on any person. It was submitted that there is no other criminal antecedent of the petitioners. Further it was submitted that even the injury suffered by the informant though attributed to other co accused is simple in nature 9. Learned APP submitted that the petitioner no. 1 had taken apple from the cart of the informant and not paid to him and petitioner no. 3 had taken away Rs. 4 000 cash and the petitioner no. 4 was also party to the general assault 10. Learned counsel for the informant submitted that all the accused including the petitioners no. 1 3 and 4 who are brothers had taken part in the assault. However it was not denied that against petitioner no. 1 the only specific allegation is of taking 1 kg. of apple against petitioner no. 3 that he snatched Rs 4 000 cash and general and omnibus against petitioner no. 4 Learned counsel submitted that though the allegation of assault on the informant is specificially against petitioner no. 2 who is no more a petitioner herein the same has resulted in damage in the skull and in the CT scan of the brain grievous injuries have been Patna High Court CR. MISC. No.33621 dt.17 09 2021 found which are not reflected in the initial injury report on which learned counsel for the petitioners has relied though it was not denied that the same is specifically attributed to petitioner no. 2 who has already surrendered before the Court below 11. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties in view of the nature of the allegations as also that the petitioners no 1 3 and 4 do not have any criminal antecedent the Court is inclined to allow their prayer for pre arrest bail 12. Accordingly in the event of arrest or surrender before the Court below within six weeks from today the petitioner no. 1 namely Awasar Dewan @ Asar Dewan petitioner no. 3 namely Reyajul Dewan and petitioner no. 4 namely Zazul Dewan be released on bail upon furnishing bail bonds of Rs 25 000 each with two sureties of the like amount each to the satisfaction of the learned Chief Judicial Magistrate Bettiah in Majhaulia PS Case No. 3720 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 said petitioners that the said petitioners and the bailors shall execute bond and give undertaking with regard to good behaviour of the said petitioners Patna High Court CR. MISC. No.33621 dt.17 09 2021 andthat the said petitioners shall co operate with the Court and police prosecution. Any violation of the terms and conditions of the bonds or the undertaking or failure to co operate shall lead to cancellation of their bail bonds 13. It shall also be open for the prosecution to bring any violation of the foregoing conditions by the said petitioners to the notice of the Court concerned which shall take immediate action on the same after giving opportunity of hearing to the concerned 14. The petition stands disposed of in the (Ahsanuddin Amanullah J

Only in exceptional circumstances, when no other remedy is available, can a Writ Petition be filed: Supreme Court

When an alternative remedy is available, the Supreme Court stated that a High Court could hear a writ petition under Article 226 of the Constitution only in the following exceptional circumstances: The revenue argued before the Supreme Court that the High Court erred in accepting the writ petition under Article 226 of the Constitution, given the alternative statutory remedy provided under Section 107 of the CGST Act. The bench agreed with the argument, noting that the petitioner before the High Court had a legislative remedy under section 107, but instead of using it, it filed a petition under Article 226. The Court, in the present case of Assistant Commissioner of State Tax vs. Commercial Steel Limited LL 2021 SC 438, held that,

IN THE CIVIL APPELLATE JURISDICTION Civil Appeal No 51221 Arising out of SLPNo 136321 @ D No.115520 The Assistant Commissioner of State Tax M s Commercial Steel Limited JUDGMENT Per Dr Dhananjaya Y Chandrachud This appeal arises from a judgment of a Division Bench of the High Court of Telangana dated 4 March 2020 The High Court in the exercise of its writ jurisdiction under Article 226 of the Constitution set aside the action of the appellants in collecting an amount of Rs 4 16 447 from the respondent towards tax and penalty under the Central Goods and Services Tax Act 2017and State Goods and Services Tax Actand directed a refund together with interest at the rate of 6% per annum from 13 December 2019. A further direction has been issued to the State of Telangana to consider initiating disciplinary proceedings against the LL 2021 SC 438 CA 5121 2021 Assistant Commissioner. Costs of Rs 25 000 have been imposed on the first appellant who was the first respondent before the High Court The respondent is a proprietary concern engaged in the business of iron and steel and is registered under the Central Goods and Services Tax Act 2017 and has been allotted a GST code. The respondent purchased certain goods from a dealer JSW Steel Limited Vidyanagar Karnataka under a tax invoice dated 11 December 2019. The consignment of goods was being carried in a truck bearing registration No KA 35 C 0141. While it was proceeding from the State of Karnataka it was intercepted on 12 December 2019 at 5.30 pm at Jeedimetala. The tax invoice indicated that the goods were earmarked for delivery at Balanagar Telangana. The case of the appellants is that Balanagar is situated between the State of Karnataka and Jeedimetala and that no reasonable person would cross Balanagar and then turn around to go back to the place of destination. The purchase value of the goods appeared to be in the amount of Rs 11 14 579 from the tax invoices. The case of the revenue was that in the guise of an inter State sale the respondent was attempting to sell the goods in the local market by evading SGST and CGST. An order of detention was issued in Form GST MOV 06 on 12 December 2019 and a notice was served on the person in charge of the conveyance. The respondent paid the tax and penalty following which the goods and the conveyance were released on 13 December 2019. The respondent instituted writ proceedings under Article 226 of the LL 2021 SC 438 CA 5121 2021 Constitution before the High Court in order to challenge the order of detention dated 12 December 2019 and the notice which was issued under Section 20 of the IGST Act 2017. A refund of tax was sought. A counter affidavit was filed on behalf of the appellants before the High Court The High Court entertained the writ petition and ordered the refund of the amount collected towards tax and penalty together with interest. The High Court has observed that a mere possibility of a local sale would not clothe the officials to take such an action and there was no material to indicate that an attempt was made by the respondent to deliver the goods at a different place and to sell them in the local market evading CGST and SGST. The High Court has also come to the conclusion that since the vehicle was being driven from Karnataka by the local driver from that State “it is perfectly possible for the driver to lose his way on account of being unfamiliar with the roads” in Hyderabad and bypass Balanagar to proceed to Jeedimetala Mr Prashant Tyagi counsel appearing on behalf of the appellant submits that the High Court was in error in entertaining the writ petition under Article 226 of the Constitution having regard to the statutory alternative remedy which is available under Section 107 of the CGST Act. Counsel urged that while the existence of an alternative remedy under the statute is not an absolute bar to the maintainability of a writ petition under Article 226 none of the exceptions which have been enunciated by the judgments of this Court apply in this case. Hence it has been urged that the High Court ought not to have entertained the writ petition. On merits it has been submitted that the High Court has proceeded on the basis of surmises LL 2021 SC 438 CA 5121 2021 On the other hand it was urged by Mr Shaik Mohamad Haneef counsel for the respondent that the High Court having entertained the writ petition it was justified on merits in setting aside the detention and the order by which the tax and penalty was collected under duress. Hence it is urged that no interference of this Court is warranted. Section 107 is extracted below “107. Appeals to Appellate Authority Any person aggrieved by any decision or order passed under this Act or the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act by an adjudicating authority may appeal to such Appellate Authority as may be prescribed within three months from the date on which the said decision or order is communicated to such person 2) The Commissioner may on his own motion or upon request from the Commissioner of State tax or the Commissioner of Union territory tax call for and examine the record of any proceedings in which an adjudicating authority has passed any decision or order under this Act or the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act for the purpose of satisfying himself as to the legality or propriety of the said decision or order and may by order direct any officer subordinate to him to apply to the Appellate Authority within six months from the date of communication of the said decision or order for the determination of such points arising out of the said decision or order as may be specified by the Commissioner in his order 3) Where in pursuance of an order under sub section the authorised officer makes an application to the Appellate Authority such application shall be dealt with by the Appellate Authority as if it were an appeal made against the decision or order of the adjudicating authority and such authorised officer were an appellant and the provisions of this Act relating to appeals shall apply to such 4) The Appellate Authority may if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months or six months as the case may be allow it to be presented within a further period of one month 5) Every appeal under this section shall be in such form and shall be verified in such manner as may be prescribed 6) No appeal shall be filed under sub section unless the appellant has paid— LL 2021 SC 438 CA 5121 2021 a) in full such part of the amount of tax interest fine fee and penalty arising from the impugned order as is admitted by him b) a sum equal to ten per cent. of the remaining amount of tax in dispute arising from the said order subject to a maximum of twenty five crore rupees in relation to which the appeal has Provided that no appeal shall be filed against an order under sub sectionof Section 129 unless a sum equal to twenty five per cent of the penalty has been paid by the appellant 7) Where the appellant has paid the amount under sub sectionthe recovery proceedings for the balance amount shall be deemed to 8) The Appellate Authority shall give an opportunity to the appellant of being heard 9) The Appellate Authority may if sufficient cause is shown at any stage of hearing of an appeal grant time to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal The Appellate Authority may at the time of hearing of an appeal allow an appellant to add any ground of appeal not specified in the grounds of appeal if it is satisfied that the omission of that ground from the grounds of appeal was not wilful or unreasonable The Appellate Authority shall after making such further inquiry as may be necessary pass such order as it thinks just and proper confirming modifying or annulling the decision or order appealed against but shall not refer the case back to the adjudicating authority that passed the said decision or order Provided that an order enhancing any fee or penalty or fine in lieu of confiscation or confiscating goods of greater value or reducing the amount of refund or input tax credit shall not be passed unless the appellant has been given a reasonable opportunity of showing cause against the proposed order Provided further that where the Appellate Authority is of the opinion that any tax has not been paid or short paid or erroneously refunded or where input tax credit has been wrongly availed or utilised no order requiring the appellant to pay such tax or input tax credit shall be passed unless the appellant is given notice to show cause against the proposed order and the order is passed within the time limit specified under Section 73 or Section 74 LL 2021 SC 438 CA 5121 2021 12) The order of the Appellate Authority disposing of the appeal shall be in writing and shall state the points for determination the decision thereon and the reasons for such decision 13) The Appellate Authority shall where it is possible to do so hear and decide every appeal within a period of one year from the date on which it is filed Provided that where the issuance of order is stayed by an order of a court or Tribunal the period of such stay shall be excluded in computing the period of one year 14) On disposal of the appeal the Appellate Authority shall communicate the order passed by it to the appellant respondent and to the adjudicating authority 15) A copy of the order passed by the Appellate Authority shall also be sent to the jurisdictional Commissioner or the authority designated by him in this behalf and the jurisdictional Commissioner of State tax or Commissioner of Union Territory Tax or an authority designated by him in this behalf 16) Every order passed under this section shall subject to the provisions of Section 108 or Section 113 or Section 117 or Section 118 be final and binding on the parties.” 11 The respondent had a statutory remedy under section 107. Instead of availing of the remedy the respondent instituted a petition under Article 226. The existence of an alternate remedy is not an absolute bar to the maintainability of a writ petition under Article 226 of the Constitution. But a writ petition can be entertained in exceptional circumstances where there is i) a breach of fundamental rights ii) a violation of the principles of natural justice iii) an excess of jurisdiction or iv) a challenge to the vires of the statute or delegated legislation. In the present case none of the above exceptions was established. There was in fact no violation of the principles of natural justice since a notice was served on the person in charge of the conveyance. In this backdrop it was LL 2021 SC 438 CA 5121 2021 not appropriate for the High Court to entertain a writ petition. The assessment of facts would have to be carried out by the appellate authority As a matter of fact the High Court has while doing this exercise proceeded on the basis of surmises. However since we are inclined to relegate the respondent to the pursuit of the alternate statutory remedy under Section 107 this Court makes no observation on the merits of the case of the For the above reasons we allow the appeal and set aside the impugned order of the High Court. The writ petition filed by the respondent shall stand dismissed. However this shall not preclude the respondent from taking recourse to appropriate remedies which are available in terms of Section 107 of the CGST Act to pursue the grievance in regard to the action which has been adopted by the state in the present case Pending applications if any stand disposed of SECTION XII A S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS SPECIAL LEAVE PETITIONDiary No.11555 2020 Arising out of impugned final judgment and order dated 04 03 2020 in WP No.2161 2020 passed by the High Court for The State of Telangana at Hyderabad THE ASSISTANT COMMISSIONER OF STATE TAX & ORS. Petitioner(s VERSUS M S COMMERCIAL STEEL COMPANY Respondent(s With appln.(s) for IA No. 51165 2020 EXEMPTION FROM PAYING COURT Date : 03 09 2021 These matters were called on for hearing today CORAM : HON BLE DR. JUSTICE D.Y. CHANDRACHUD HON BLE MR. JUSTICE VIKRAM NATH HON BLE MS. JUSTICE HIMA KOHLI Mr. Prashant Tyagi Adv Mr. P. Venkat Reddy Adv Mr. P. Srinivas Reddy Adv M s. Venkat Palwai Law Associates Mr. Shaik Mohamad Hanif Adv Mrs. Srilakshmi Velicheti Adv Mrs. Divya Mishra Adv Mrs. Suresh Kumar Adv Mr. Irshad Ahmad AOR LL 2021 SC 438 O R D E R UPON hearing the counsel the Court made the following The appeal is allowed in terms of the signed reportable judgment Pending applications if any stand disposed of A.R. cum P.S Signed reportable judgment is placed on the file Court Master (SAROJ KUMARI GAUR LL 2021 SC 438

The petitioner, unfortunately, failed to avail her chances to clear the backlog paper: Calcutta High Court

Burdwan University Examinations Regulations are unambiguous. The rules mention that a backlog paper had to be cleared within three consecutive chances and if the chances are not availed then they shall be considered to have lapsed. The Hon’ble High Court at Calcutta before Hon’ble Justice Amrita Sinha held such an opinion regarding the case of  Safia Khatun Vs. The State of West Bengal & Ors [WPA No. 9902 of 2021]. The facts of the case were associated with the petitioner’s appeal to sit for the backlog exam. The petitioner was a student of a college affiliated with the University of Burdwan. The petitioner was pursuing a three-year degree course, under the 1+1+1 pattern. In 2017 she appeared in BA Part-I Hons. but couldn’t obtain the qualifying marks in BNGG. She consecutively failed to appear in her backlog exam in 2018 and 2019. A representation before the University to appear in the unclear Part-I examination was prayed by the petitioner. The inconsideration of her representation lead her to appeal before the court, filing a writ petition being WPA 10436 of 2020 which stood disposed of by an order dated 21st January 2021. The order dated 31st March 2021 rejected the prayer of the petitioner is impugned in the present writ petition. The petitioner stated the UGC guidelines which explained the span, a student may be allowed to qualify for a degree. The mentioned guidelines are subject to the Rules and Regulations of the statutory bodies and universities governing the grant of degrees. The learned advocate of the petitioner asserted that the petitioner had completed all her exams except for one exam and that, according to the rules the outer limit to appear for the course was seven years, and the University was ought to allow the petitioner to complete the course. To support the statement the petitioner referred to the case of the Hon’ble Supreme Court in the matter of Delhi Airtake Services Pvt. Ltd. & Anr. –vs- State of Uttar Pradesh & Anr.; (2011) 9 SCC 354 paragraphs 126, 129 and 132. The petitioner also two other cases – (i) the judgment delivered by the Hon’ble Supreme Court in the matter of JK Jute Mill Mazdoor Morcha –vs- Juggilal Kamlapat Jute Mills Co. Ltd.; (2019) 11 SCC 332 paragraph 16. (ii)  an order passed by the Hon’ble High Court of Delhi in the matter of Pijush Gupta –vs- University of Delhi reported in 1988 0 Supreme Del 337 paragraphs 6-9. The University submitted that the petitioner for unknown reasons chose not to avail the two extra opportunities to clear her backlog paper. In accordance with the regulations, there is no illegality on the part of the University. The University already had a regulation where it was mentioned that if any of the chances were not availed by the candidate for clearing the backlog papers within the stipulated three consecutive chances and within the seven years’ time period, the chances would be considered to have lapsed, therefore no further chance can be given to the petitioner. Burdwan University Regulation 4(UG) of Undergraduate Examinations Regulations, 2016 reads as follows: “A regular candidate shall have to complete Part-I, Part-II and Part-III Hons./General examinations within seven consecutive years including his/her original enrolment in Part-I examination subject to the condition that not more than three consecutive chances shall be allowed in each part. If any of the chances mentioned above is not availed of by a candidate within the stipulated period, the chances shall be deemed to have lapsed.” It was known that the legislature had fixed two-time limits for the completion of the course. Firstly, the time limit for completion of the entire course and secondly the time limit to clear a part of the said course. In the instant case, it appears that the University framed its regulations keeping the interest of students in mind. The Hon’ble Court believed that the rules and regulations of the University of Burdwan were crystal clear and that its the student who failed to appear in her backlog paper to clear the same.  The Hon’ble High Court at Calcutta before Hon’ble Justice Amrita Sinha considered all the facts and held “… The petitioner, unfortunately, failed to avail her chances to clear the backlog paper. In such a situation no direction can be passed upon the University to permit the petitioner to appear in her backlog paper for clearing the same once again. The writ petition fails and is hereby dismissed.”

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

The power of judicial review must be exercised restrictively against the orders passed by the Central Administrative Tribunal: High Court of Delhi

The High Court, in the exercise of its powers under Article 226 of the Constitution of India, does not sit as a Court of Appeal against the orders passed by the learned Central Administrative Tribunal. The power of judicial review must be exercised restrictively and on limited grounds and the same was upheld by High Court of Delhi through the learned bench led by JUSTICE NAVIN CHAWLA in the case of AMARJEET SINGH DAGAR vs. UNION OF INDIA AND OTHERS [W.P.(C) 6311/2020] on 07.03.2022. The facts of the case are that the petitioner, joined as a Section Officer in the Horticulture Wing of the respondent. While in service, the hearing impairment of the petitioner became quite severe. The petitioner, vide Disability Certificate was found suffering from bilateral moderately severe mixed hearing loss with amputation left finger. The petitioner opted for his transfer to the North-Eastern Region, however, soon after joining his place of posting, in the absence of his wife, who was unable to join him at Guwahati due to her permanent job in Delhi NCR, and made it quite impossible for him to live alone in Assam. The petitioner, therefore, seeked a transfer back to New Delhi. Despite representations made seeking transfer to New Delhi, the petitioner was retained in the Eastern Region. As the functioning of the learned Central Administrative Tribunal had been suspended in light of the nation-wide lockdown imposed due to the COVID-19 pandemic, the petitioner approached this Court by way of a writ petition. The petitioner’s counsel submitted that the learned Central Administrative Tribunal failed to appreciate that the respondents, apart from stating that the impugned Office Order has been passed on account of ‘exigencies in service’ and in the ‘public interest’ have not disclosed the reason for transferring the petitioner from New Delhi within only thirtyfive days of his posting and that too in the peak of the COVID-19 pandemic and the same is discriminatory as the petitioner had been transferred without taking into consideration his disability status. The respondent’s counsel submitted that merely because other officers have been allowed to remain in New Delhi for more than three years, does not give a right to the petitioner to also seek continuation of his posting in Delhi. The Court held that interference under Article 226 of the Constitution of India is permitted only where the Court finds either the transfer order is mala fide or that the service rules prohibit such transfer or that the Authorities issuing the order were not competent to pass the same. It was observed that “in the exercise of its powers under Article 226 of the Constitution of India, does not sit as a Court of Appeal against the orders passed by the learned Central Administrative Tribunal. The power of judicial review must be exercised restrictively and on limited grounds.” Click here to read the Judgment Judgment reviewed by – Shristi Suman

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

An application under Section 12 of the Domestic Violence Act is not barred by the limitations set out in Section 468 of the Criminal Procedure Code: Karnataka High Court

When the application under Section 12 of the DV Act is not covered under the term ‘offence’, section 468 of Cr. P.C is inapplicable. Therefore the application of Section 468 of Cr.P.C. to an application under Section 12 of the DV Act is a misconception. The judgement was passed by the High Court of Karnataka in the case of Sri Puttaraju v. Smt.Shivakumari [Criminal Revision Petition No.730/2019] by Single Bench consisting of Hon’ble Justice K.S.Mudagal. A petition filed by Puttaraju challenging the order passed by the Additional Chief Judicial Magistrate, directing him to pay an amount of Rs 8,000 per month to his wife and children as maintenance and house rent. The husband challenged the order which directed him to deposit an amount of Rs 4,32,000. The court had directed the amount to be transferred to the magistrate court from where the wife could withdraw the same. Learned Counsel for the petitioner opposes the application on the ground that the petition was filed 10 years from the date of the alleged domestic incident, therefore the petition itself was not maintainable. Relying on Section 28 of the DV Act, learned Counsel for the petitioner submits that to file application under Section 12 of the DV Act, the Code of Criminal procedure is applicable. Therefore he submits that Section 468 of Cr.P.C. is applicable Learned Counsel for the respondent refutes the contention regarding limitation on the ground that Section 468 of Cr.P.C. applies only to the petition under Section 31 of the DV Act and not to the application under Section 12 of the DV Act filed for the reliefs under Sections 20 and 21 of the DV Act. The court opined that “Section 12 of the DV Act is only an enabling provision to initiate an enquiry to find out whether such act or omission is committed.” Finally, it concluded by saying “Section 31 of the DV Act makes it clear that the only breach of the protection order or interim protection order etc. passed under Section 12 of the DV Act constitutes an offence and made punishably. Therefore it is clear that the act or omission contemplated under Section 31 of the DV Act is an offence and the application under Section 12 of the DV Act itself is not an offence.”

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF APRIL 2021 THE HON’BLE MRS. JUSTICE K.S.MUDAGAL CRIMINAL REVISION PETITION No.730 2019 SRI PUTTARAJU S O LATE MUDDAPPA AGED ABOUT 55 YEARS R AT SHIVAKOTE VILLAGE AND POST HESARAGHATTA HOBLI BANGALORE NORT TALUK 560 088 BY SRI RAJANNA L ADVOCATE) W O PUTTARAJU AGED ABOUT 48 YEARS R AT SHIVAKOTE VILLAGE AND POST HESARAGHATTA HOBLI BANGALORE NORT TALUK 560 088 BY SRI PATEEL G.S. ADVOCATE) THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH SECTION 401 OF CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 11.04.2016 PASSED BY THE II ADDITIONAL CHIEF JUDICIAL MAGISTRATE BENGALURU RURAL DISTRICT BENGALURU IN CRL.MISC.NO.206 2011 AND THE ORDER DATED 16.04.2019 PASSED BY THE IX ADDITIONAL DISTRICT AND SESSIONS JUDGE BENGALURU RURAL DISTRICT BENGALURU IN CRIMINAL APPEAL NO.19 2016. THIS CRIMINAL REVISION PETITION COMING ON FOR ORDERS THIS DAY THE COURT MADE THE FOLLOWING: ORDER ON I.A.No.1 2020 The respondent has filed the above application for release of Rs.4 32 000 deposited before the trial Court in her The petitioner and the respondent are husband and wife. The respondent filed Crl.Misc.No.206 2011 against the petitioner before the trial Court under Section 12 of the Protection of Women from Domestic Violence Act 2005 seeking monetary relief and custody order as contemplated under Sections 20 and 21 of the DV Act on the ground that she was subjected to domestic violence in the hands of the petitioner. The trial Court by order dated 11.04.2016 partly allowed the said petition awarded Rs.8 000 per month to the respondent and her children as maintenance and house rent. The petitioner was also restrained from taking away the children from her custody and committing domestic violence. The petitioner challenged the said order of the trial Court before IX Additional District & Sessions Judge Bengaluru Rural District Bengaluru in Crl.A.No.19 2016. The First Appellate Court granted interim stay subject to the petitioner depositing Rs.4 32 000 before the First Appellate Court towards arrears of maintenance. Accordingly the petitioner deposited the said amount before First Appellate Ultimately on hearing the parties the First Appellate Court by the impugned order dismissed the appeal and confirmed the order of the trial Court. Further the First Appellate Court directed to transmit the amount in deposit to the trial Court with a further direction to the trial Court to release the said amount to the respondent wife. Accordingly the said amount is transmitted to the trial Court and pending in Court deposit. The respondent has filed the above application seeking release of the said amount. Sri L.Rajanna learned Counsel for the petitioner opposes the application on the ground that the petition was filed 10 years from the date of the alleged domestic incident therefore the petition itself was not maintainable. In support of his contentions he relies upon the following judgments: Inderjit Singh Grewal v. State of Punjab & Anr.1 J.Srinivas vs. G.Dhanalakshmi2 iii) Gurudev & Anr. vs. Jayashree3 Sri G.S.Pateel learned Counsel for the respondent refutes the contention regarding limitation on the ground that Section 468 of Cr.P.C. is applicable only to the petition under Section 31 of the DV Act and not to the application under Section 12 of the DV Act filed for the reliefs under Sections 20 and 21 of the DV Act. In support of his contentions he relies upon the following judgments: Krishna Bhattacharjee v. Sarathi Choudhury4 Vikas and others v. Smt. Usha Rani & Anr.5 1 2012 Cri.L.J.309 2 Crl.P.No.2419 2009 DD 05.04.2013 3 Crl.P.No.11476 2013 DD 08.01.2014 42 SCC 705 5 Crl.R.No.3084 2016DD 17.04.2018 The relationship between the parties is not in dispute. The only question for consideration is for an application under Section 12 of the DV Act whether Section 468 of Cr.P.C. which prescribes the limitation is applicable 10. Relying on Section 28 of the DV Act learned Counsel for the petitioner submits that to file application under Section 12 of the DV Act the Code of Criminal procedure is applicable. Therefore he submits that Section 468 of Cr.P.C. is applicable. Section 28(1) of the DV Act relied upon by learned Counsel for the petitioner reads as follows: “28. Procedure.—(1) Save as otherwise provided in this Act all proceedings under sections 12 18 19 20 21 22 and 23 and offences under section 31 shall be governed by the provisions of the Code of Criminal Procedure 1973of Cr.P.C which reads as follows: “468. Bar to taking cognizance after lapse of the period of limitation 1) Except as otherwise provided elsewhere in this Code no Court shall take cognizance of an offence of the category specified in sub section after the expiry of the period of limitation. 2) The period of limitation shall be— a) …. b) one year if the offence is punishable with imprisonment for a term not exceeding one year.” 12. Reading of Section 468 and 468(2)(b) of Cr.P.C. itself shows that the bar of limitation for taking cognizance is intertwined with an offence. Section 468 of Cr.P.C. comes into picture only if there is an offence. If there is no offence no limitation. 13. Then the question is whether the act alleged in the application under Section 12 of the DV Act itself constitutes an offence by the respondent. 7 14. Section 12(1) & of the DV Act which are relevant for our purpose read as follows: “12. Application to Magistrate.—(1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act: Provided that before passing any order on such application the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service 2) The relief sought for under sub section 1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent: Provided that where a decree for any amount as compensation or damages has been passed by any court in favour of the aggrieved person the amount if any paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall notwithstanding anything contained in the Code of Civil Procedure 1908or any other law for the time 8 being in force be executable for the balance amount if any left after such set off. Thus in Section 12 of the DV Act if domestic violence is not called or treated as an offence it speaks of Court granting relief and not of conviction and sentence. 15. So far this petition Sections 20(d) and 21 of the DV Act are relevant. They read as follows: “20. Monetary reliefs.—While disposing of an application under sub sectionof section 12 the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include but is not limited to— a) …. b) …. c) …. d)the maintenance for the aggrieved person as well as her children if any including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure 1973 or any other law for the time being in force. anything contained in any other law for the time being in force the Magistrate may at any stage of hearing of the application for protection order or for any other relief under this Act grant temporary custody of any child or children to the aggrieved person or the person making an application on her behalf and specify if necessary the arrangements for visit of such child or children by the respondent: Provided that if the Magistrate is of the opinion that any visit of the respondent may be harmful to the interests of the child or children the Magistrate shall refuse to allow such visit.” Therefore even Sections 20 and 21 of the DV Act do not treat the domestic violence as offence. 16. To attract Section 468 of Cr.P.C essentially the Act alleged must be an offence. Under the DV Act the offence is not defined as defined in Section 40 of IPC. Therefore we have to revert to the General Clauses Act 1897. Section 3(38) of the General Clauses Act defines the offences as follows: “3(38). “Offence” shall mean any act or omission made punishable by any law for the time being in force.” 17. Perusal of the above provision makes it clear that to call an act as offence act or omission must be made punishable under law. As already pointed out under Sections 12 20 and 21 of the DV Act have not made the domestic violence alleged thereunder punishable or defined them as offence. Section 12 of the DV Act is only an enabling provision to initiate enquiry to find out whether such act or omission is committed. reads as follows: 18. Section 31 of the DV Act is Penalty Clause which “31. Penalty for breach of protection order by respondent.—(1) A breach of protection order or of an interim protection order by the respondent shall be an offence under this Act and shall be punishable with imprisonment of either description for a term which may extend to one year or with fine which may extend to twenty thousand rupees or with both. 2) The offence under sub section shall as far as practicable be tried by the Magistrate who had passed the order the breach of which has been alleged to have been caused by the accused. 3) While framing charges under sub section 1) the Magistrate may also frame charges under section 498A of the Indian Penal Codeor any other provision of that Code or the Dowry Prohibition Act 1961 as the case may be if the facts disclose the commission of an offence under those provisions.” 19. Perusal of Section 31 of the DV Act makes it clear that only breach of the protection order or interim protection order etc. passed under Section 12 of the DV Act constitutes an offence and made punishable. As held by Punjab High Court in Vikas’s case referred to supra Section 12 of the DV Act is only enabling provision. Therefore it is clear that the act or omission contemplated under Section 31 of the DV Act is an offence and the application under Section 12 of the DV Act itself is not an offence. 20. When the application under Section 12 of the DV Act is not covered under the term ‘offence’ Section 468 of Cr.P.C. is inapplicable. Therefore the application of Section 468 of Cr.P.C. to an application under Section 12 of the DV Act is clearly a misconception. 21. One has to bear in mind that the proceedings under the DV Act are neither purely criminal nor civil proceedings. The very object of the DV Act as could be seen from the preamble is to protect the women against violence of any kind occurring within the family. If at all the Act intended to make each and every Act of domestic violence offences then Parliament would not have legislated separate law i.e. IPC dealing with offences against Women like 498A 306 304B or offences against body in Chapter XVI of IPC. The purpose of the DV Act is to protect and save the family. In Inderjit Singh Grewal’s case referred to supra it was held that there was already decree of judicial separation. In that context in para 25 of the judgment it was held as follows: “25. In view of the above we are of the considered opinion that permitting the Magistrate to proceed further with the complaint under the provisions of the Act 2005 is not compatible and in consonance with the decree of divorce which still subsists and thus the process amounts to abuse of the process of the court. Undoubtedly for quashing a complaint the court has to take its contents on its face value and in case the same discloses an offence the court generally does not interfere with the same. However in the backdrop of the factual matrix of this case permitting the court to proceed with the complaint would be travesty of justice. Thus interest of justice warrants quashing of the same.” Emphasis Supplied) 23. Reading of the above paragraph shows that the Hon ble Supreme Court also held that generally it does not interfere with such cases and in the backdrop of the factual matrix of the case continuation of the proceedings amounts to abuse of the process of the Court. 24. Distinguishing Inderjit Singh Grewal’s case the Hon ble Supreme Court in subsequent judgment in Krishna Bhattacharjee’s case referred to supra held that the observation regarding domestic relationship in Inderjit Singh Grewal’s case were based on the facts and circumstances of the said case and they are not of general 14 25. Further in para 32 of the judgment in Krishna Bhattacharjee’s case referred to supra the Hon ble Supreme Court held that the definition of the aggrieved person and domestic relationship remains and the act of domestic violence attracts the term ‘continuing offence’ therefore does not get time barred. In the judgments of the Hon’ble Supreme Court referred to above the interplay of Section 3(38) of the General Clauses Act Section 31 of the DV Act and Section 468 of Cr.P.C. had not fallen for consideration. In view of the later judgment of the Hon ble Supreme Court in Krishna Bhattacharjee’s case referred to supra the judgments of this Court in Srinivas’s case and Gurudev’s case cannot be followed. Therefore this Court does not find any merit in the contention that the petition was time barred. Under the circumstances the respondent is entitled for withdrawal of the amount. The application is allowed. The trial Court shall release Rs.4 32 000 to the respondent herein subject to the result of this petition. At this stage learned Counsel for the petitioner submits that trial Court awarded Rs.4 32 000 as maintenance to the respondent including her children who are major. Therefore he submits only her share shall be released to her. First of all the trial Court has not made any such apportionment. Secondly it was not the case of the petitioner husband that children and mother have any conflicting interest nor he examined any children before the trial Court to state so. Therefore this Court finds the said submission as vexatious and rejected accordingly. Sd

A writ petition against a State or a State’s instrumentality arising from a contractual obligation is maintainable. :Calcutta High Court

“The following legal principles emerge as to the maintainability of a writ petition:  (a) In an appropriate case, a writ petition as against a State or an instrumentality of a State arising out of a contractual obligation is maintainable.  (b) Merely because some disputed questions of fact arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule.  (c) A writ petition involving a consequential relief of monetary claim is also maintainable.”  Said Justice Arindam Mukherjee from the Calcutta High Court in the matter of Man Nanda Keshri Rice Mill and Anr. Versus Union of India and ors. [W.P.A. 1998 OF 2020] This order was passed for the facts where the petitioners claim that the Term Loan of Rs. 108 lakhs was duly repaid to the satisfaction of the Bank. The bank has also issued a certificate declaring the closure of the Term Loan Account on August 16, 2013, upon full payment. On behalf of the petitioners, petitioner no. 2 requested that the said Bank release the two mortgaged properties on the grounds that the Term Loan had already been repaid. According to a letter dated September 15, 2014, the bank has refused to release the mortgaged properties on the grounds that the Cash Credit account has not been closed and that the mortgaged properties cannot be released until the outstanding amount against the same is repaid. In response to the Court’s rejection of the petitioners’ request for the release of the mortgaged properties, the petitioners have filed this writ petition, asking the Court to issue mandatory orders directing the release of the mortgaged properties. According to the petitioners, the Term Loan has been repaid. Petitioner no. 2 as the personal guarantee given by the proprietor of petitioner no. 1 and one Gayatri Saha secures the Working Capital Loan of Rs.40 Lakhs, also known as Cash Credit limit. Aside from that, and in any case, the Cash Credit Loan is also secured by the Rice Mill’s stock, work in progress, and raw materials. It is submitted on behalf of the Bank that the sanction granted on September 5, 2005, was a composite one. Both the Term Loan and the Cash Credit facility were mortgaged by the petitioners. The mortgage, because it is a composite one, cannot be released until the outstanding amount in the Cash Credit Account is fully repaid, even if the Term Loan is fully repaid.  WPA 1998-2020 The said bank has also questioned the viability of the writ petition in light of the nature of the contract under which the equitable mortgage was credited. The question raised by the bank, in this case, is not whether the respondent bank is an authority under Article 12 of the Indian Constitution and a writ exists against it, but whether this Court will exercise its jurisdiction under Article 226 of the Indian Constitution to entertain the writ petition by passing orders therein taking into account the nature of the contract between the parties and the court. The contract between the respondent-bank and the petitioner clearly and unambiguously reveals that the petitioner has entered into the realm of the concluded contract, pure and simple, after voluntarily accepting the conditions imposed by the respondent-bank. Unless some statute steps in and confers some special statutory obligations on the part of the bank in the contractual field, the petitioner can only claim the right conferred upon it by the said contract and is bound by the terms of the contract. In terms of the issue of mortgage release upon repayment of a portion of the aggregate loan, the contract between the petitioner and the respondent bank contains no statutory terms and/or conditions. The petitioner’s remedy, if any, is to redeem the mortgage, rather than to file a writ petition seeking the release of mortgage properties under the contract. As a result, the writ petition fails and is dismissed on the grounds of maintainability as discussed above, but without any order as to costs. 

Maa Nandi Keshri Rice Mill & Anr vs The Union Of India & Ors on 6 May 2021 Calcutta High CourtThe petitioners say that the Term Loan of Rs. 108 lakhs has been duly repaid by the petitioners to the satisfaction of the Bank. The Bank has also issued a certificate declaring closure of the Term Loan Account on 16th August 2013 upon full payment having been made. The petitioner no. 2 on behalf of the petitioners requested the said Bank to release the two mortgaged properties on the ground that the Term Loan has already been repaid. The Bank has refused to release the mortgaged properties as will appear from a letter dated 15th September 2014 on the ground that the Cash Credit account has not been closed and unless the outstanding amount against the same is repaid the mortgaged properties cannot be released. Challenging the rejection of the petitioners prayer to release the mortgaged properties the petitioners have filed the instant writ petition inviting this Court to pass mandatory orders directing release of the mortgaged properties WPA 1998 OF 2020 b) The petitioners say that the Term Loan has been repaid. The Working Capital Loan of Rs.40 Lakhs also referred to as Cash Credit limit is secured by the petitioner no. 2 as the personal guarantee given by the proprietor of petitioner no. 1 and one Gayatri Saha. That apart and in any event the Cash Credit Loan is also otherwise secured by the stock work in progress and raw materials of the Rice Mill. In such circumstances the petitioners say that the said bank could neither refuse to release the mortgaged properties nor can contend that the mortgaged properties will be released only upon repayment of the entire outstanding against the Cash Credit limit. The petitioners also say that by refusing to release the mortgaged properties the bank has infringed the rights guaranteed under Article 300 A of the Constitution of India. In such circumstances the petitioners say that mandatory order should be passed for release of the mortgaged properties failing which the petitioners will suffer irreparable loss 3. Submission of the Respondents : a) On behalf of the Bank it is submitted that the sanction granted on 5th September 2005 was a composite one. The petitioners had mortgaged the properties both for the Term Loan and the Cash Credit facility. The mortgage being a composite one cannot be released unless the outstanding amount in the Cash Credit Account is fully repaid even if the Term Loan has been fully repaid WPA 1998 OF 2020 The said bank has also raised an issue as to the maintainability of the writ petition in view of the nature of the contract pursuant to which the equitable mortgage was credited. The respondent bank says that no relief in the facts and circumstances of the case can be granted by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India as the petitioners are seeking enforcement of the terms of a Contract simplicitor entered by the bank while carrying out commercial activities Indian Kanoon Maa Nandi Keshri Rice Mill & Anr vs The Union Of India & Ors on 6 May 2021 4. Petitioners Reply: i) In reply the petitioners say that the value of the mortgaged properties in 2005 was respectively Rs.20 lakhs and 30 lakhs. Even in 2005 the value of the mortgaged properties were more than the working capital loan or the Cash Credit limit facility of Rs.40 lakhs availed by the petitioner. The bank under normal circumstances would not have granted credit facilities to petitioner no. 1 unless the securities given by the petitioners were either above 148 lakhs being the total loan availed or at par with such amount. Now that Rs.108 lakhs have been paid the mortgaged properties should be released. The market value of the mortgaged properties as on 22nd October 2008 even according to the bank as per its own valuation is Rs.5 83 05 000.00. The realizable value is Rs.5 24 75 000.00 while the forced sale value is Rs.4 66 44 000.00 which is much in excess of the outstanding in the Cash Credit account. The petitioners in this regard has also referred to a valuation report obtained by the respondent bank from WPA 1998 OF 2020 its valuer on 27th October 2018The petitioners have tried to defend the writ petition by contending that the respondent bank in view of the pervasive control of such bank with the Reserve Bank of Indiaand the Ministry of Finance is an authority under Article 12 of the Constitution of India and as such is a State . The said bank entered into the contract while discharging public duty and as such cannot be allowed to act arbitrarily with an ulterior motive and mala fide intent. The writ petition is therefor maintainable. The petitioners have relied upon a judgement reported in3 SCC 553on the issue of maintainability of the writ petition and scope of judicial review with regard to Government contract 5. After hearing the parties and considering the materials on record I have decided to consider the maintainability point raised by the bank without calling for affidavits as the same does not require any factual clarification for which affidavits are required. The parties have agreed to such proposal and as such the hearing of the writ petition restricted only to the maintainability point was allowed 6. Findings with reasons : WPA 1998 OF 2020 a) In the instant case the question raised by the bank is not whether the respondent bank is an authority under Article 12 of the Constitution of India and a writ lies against it but whether this Court will exercise its jurisdiction under Article 226 of the Constitution of India to entertain the writ petition by passing orders therein considering the nature of contract between the parties and the character of dispute raised for adjudication b) The Hon ble Supreme Court of India in the judgement reported in3 SCC 457has while discussing different types of cases relating to contracts with the State and the exercise of Indian Kanoon Maa Nandi Keshri Rice Mill & Anr vs The Union Of India & Ors on 6 May 2021 jurisdiction under Article 226 of the Constitution of India divided such cases into three categories as will appear from paragraph 12 thereof " The Patna High Court had very rightly divided the types of cases in which breaches of alleged obligation by the State or its agents can be set up into three types. These were stated as follows i) Where a petitioner makes a grievance of breach of promise on the part of the State in cases where on assurance or promise made by the State he has acted to his prejudice and predicament but the agreement is short of a contract within the meaning of Article 299 of the Constitution ii) Where the contract entered into between the person aggrieved and the State is in exercise of a statutory power WPA 1998 OF 2020 under certain Act or Rules framed thereunder and the petitioner alleges a breaches on the part of the State and iii) Where the contract entered into between the State and the person aggrieved is non statutory and purely contractual and the rights and liabilities of the parties are governed by the terms of the contract and the petitioner complains about breach of such contract by the State c) Thereafter the Hon ble Supreme Court approved the view taken by the Patna High Court : 13. It is rightly held that the cases such as Union of India v. M s Anglo Afgan Agencies and Century Spinning & Manufacturing Co. Ltd. v. Ulhasnagar Municipal Council and Robertson v. Minister of Pensions belong to the first category where it could be held that public bodies or the State are as much bound as private individuals are to carry out obligations incurred by them because parties seeking to bind the authorities have altered their position to their disadvantage or have acted to their detriment on the strength of the representations made by these authorities. The High Court thought that in such cases the obligation could sometimes be appropriately enforced on a Writ Petition even though the obligation was equitable only. We do not propose to express an opinion here on the question whether such an obligation could be enforced in proceedings under Article 226 WPA 1998 OF 2020 of the Constitution now. It is enough to observe that the cases before us do not belong to this category 14. The Patna High Court also distinguished cases which belong to the second category such as K.N. Guruswamy v. The State of Mysore D.F.O. South Kheri v Ram Sanehi Singh and M s Shri Krishna Gyanoday sugar Ltd. v. The State of Bihar where the breach complained of was of a statutory obligation. It correctly pointed out that the cases before us do not belong to this class either 15. It then very rightly held that the cases now before us should be placed in the third category where questions of pure alleged breaches of contract are involved. It held upon the strength of Umakant Saran v. The State of Bihar and Lekhraj Satramdas v. Deputy Custodian cum Managing Officer and B.K. Sinha v. State of Indian Kanoon Maa Nandi Keshri Rice Mill & Anr vs The Union Of India & Ors on 6 May 2021 Bihar that no writ or order can issue under Article 226 of the Constitution in such cases "to compel the authorities to remedy a breach of contract pure and simple d) In another judgement of the Hon ble Supreme Court which according to me has a significant bearing in the matter is reported in10 SCC 733wherein the Hon ble Supreme Court has heldWPA 1998 OF 2020 32. Merely because Reserve Bank of India lays the banking policy in the interest of the banking system or in the interest of monetary stability or sound economic growth having due regard to the interests of the depositors etc. as provided under Section 5(c)(a) of the Banking Regulation Act does not mean that the private companies carrying on the business or commercial activity of banking discharge any public function or public duty. These are all regulatory measures applicable to those carrying on commercial activity in banking and these companies are to act according to these provisions failing which certain consequences follow as indicated in the Act itself. As to the provision regarding acquisition of a banking company by the Government it may be pointed out that any private property can be acquired by the Government in public interest. It is now a judicially accepted norm that private interest has to give way to the public interest. If a private property is acquired in public interest it does not mean that the party whose property is acquired is performing or discharging any function or duty of public character though it would be so for the acquiring e) Although the bank in the instant case being United Bank of India a "corresponding new bank" constituted under the Banking CompaniesAct 1970 and the provisions of the said Act lays down a pervasive control of the Central Government and the Reserve Bank of Indiain its functioning I am inclined to borrow the language of the Hon ble Supreme Court of India in Sagar Thomasthough the same in respect of a private company carrying on banking business. The control of the Central Government and RBI over United Bank of Indiamay bring it within the ambit of Article 12 of the Constitution of India but a contract entered into by such bank with its constituent while carrying on business or commercial activity of banking as in the instant case is a pure and simple contract without any statutory flavour. The RBI guidelines in the instant case operates in the interest of banking system or in the interest of monetary stability or sound economic growth having due regard to the interest of the depositors and does not incorporate any statutory flavour to the contract in hand. This brings such a contract like that in hand to the third category of cases specified in Radhakrishna Agarwaland no writ lies or order can be made under Article 226 of the Constitution compelling the respondent bank to remedy the breach of contract pure and simple Indian Kanoon Maa Nandi Keshri Rice Mill & Anr vs The Union Of India & Ors on 6 May 2021 f) In a subsequent judgement of the Hon ble Supreme Court reported in10 SCC 236Radhkrishna Agarwaland ABL International supra)were considered. In Noble Resources Ltd.the Hon ble Supreme Court after considering various authorities has brought a distinction between non statutory contract and a statutory contract. A further distinction is also made between performance of statutory duty or dealing of a public matter by a State and its commercial activities The Hon ble Supreme Court then went on to hold that contractual matters are thus ordinarily beyond the realm of judicial review. The application of judicial review in such cases are however very limited. Judicial review according to the said judgement is permissible when mala fide or ulterior motive is attributed. The Court has to bear in mind while considering the scope of judicial review so far it relates to the exercise of contractual powers by Government bodies that the principle of judicial review is to prevent arbitrariness or favouritism. The Court has to see whether interference is needed for larger public interest or that power has WPA 1998 OF 2020 been exercised for any collateral proposition. The Supreme Court has also held in Noble Resources Supra) that existence of disputed question of fact or availability of an alternative remedy by itself would not decline the High Court in exercising its jurisdiction under Article 226 of the Constitution g) In another judgement reported in9 SCC 433 State of Kerala and others vs. M.K. Jose the Hon ble Supreme Court has considered several authorities including ABL International Ltd.to find out in which type of case judicial review relating to contracts entered by the Government are called for h) In M.K. Josewhile approving the views taken in ABL Internationalwherein legal principles as to maintainability of writ petition was considered the Hon ble Supreme Court quoted with approval the following See SCC Page 443 paragraph 17 17. In ABL Internatinal Ltd. v. Export Credit Guarantee Corpn. Of India Ltd. a two Judge Bench after referring to various judgments as well as the pronouncement in Gunwant Kaur and Century Spg. and Mfg. Co. Ltd. v. Ulhasnagar Municipal Council has held thus:" 19. Therefor it is clear from the above enunciation of law that merely because one of the parties to the litigation raises a WPA 1998 OF 2020 dispute in regard to the facts of the case the court entertaining such petition under Article 226 of the Constitution is not always bound to relegate the parties to a suit. In the above case of Gunwant Kaur this Court even went to the extent of holding that in a writ petition if the facts require even oral evidence can be taken. This clearly shows that in an appropriate case the writ court has the jurisdiction to entertain a writ petition involving disputed questions of fact and there is no absolute bar for entertaining a writ petition even if the same arises out of a contractual obligation and or involves some disputed questions of fact 27. From the above discussion of ours the following legal principles emerge as to the maintainability of a writ petition Indian Kanoon Maa Nandi Keshri Rice Mill & Anr vs The Union Of India & Ors on 6 May 2021 a) In an appropriate case a writ petition as against a State or an instrumentality of a State arising out of a contractual obligation is maintainable b) Merely because some disputed questions of fact arise for consideration same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule c) A writ petition involving a consequential relief of monetary claim is also maintainable While laying down the principle the Court sounded a word of caution as under:WPA 1998 OF 2020 "28. However while entertaining an objection as to the maintainability of a writ petition under Article 226 of the Constitution of India the court should bear in mind the fact that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution. The High Court having regard to the facts of the case has a discretion to entertain or not to entertain a writ petition The Court has imposed upon itself certain restrictions in the exercise of this power.And this plenary right of the High Court to issue a prerogative writ will not normally be exercised by the Court to the exclusion of other available remedies unless such action of the State or its instrumentality is arbitrary and unreasonable so as to violate the constitutional mandate of Article 14 or for other valid and legitimate reasons for which the Court thinks it necessary to exercise the said jurisdiction i) The Hon ble Supreme Court in M.K. Josehas further held See SCC Page 444 paragraph 18. It is appropriate to state here that in the said case the Court granted the relief as the facts were absolutely clear from the documentary evidence brought which pertain to interpretation of certain clauses of contract of insurance. In that WPA 1998 OF 2020 context the Court opined:"51. ... The terms of the insurance contract which were agreed between the parties were after the terms of the contract between the exporter and the importer were executed which included the addendum therefore without hesitation we must proceed on the basis that the first respondent issued the insurance policy knowing very well that there was more than one mode of payment of consideration and it had insured failure of all the modes of payment of consideration. From the correspondence as well as from the terms of the policy it is noticed that existence of only two conditions has been made as a condition precedent for making the first respondent Corporation liable to pay for the insured risk that is:there should be a default on the part of the Kazak Corporation to pay for the goods received andthere should be a failure on the part of the Kazakhstan Government to fulfil their guarantee." And it eventually held:of the proviso to the insurance contract by the Appellate Bench is also misplaced which is clear from the language of the said clause WPA 1998 OF 2020 itself. Therefore in our opinion it does not require Indian Kanoon Maa Nandi Keshri Rice Mill & Anr vs The Union Of India & Ors on 6 May 2021 any external aid much less any oral evidence to interpret the above clause. Merely because the first respondent wants to dispute this fact in our opinion it does not become a disputed fact. If such objection as to disputed questions or interpretations is raised in a writ petition in our opinion the courts can very well go into the same and decide that objection if facts permit the same as in this j) The Hon ble Supreme Court in M.K. Josequoted with approval the following findings in Noble Resources Ltd.See SCC page 445 paragraph 19 19. In this regard a reference to Noble Resources Ltd. vs. State of Orissa would be seemly. The two Judge Bench referred to ABL International Dwarkadas Marfatia & Sons v. Port of Bombay Mahabir Auto Stores v. Indian Oil Corpn. and Jamshed Hormusji Wadia v. Port of Mumbai and opined thus:"29. Although the scope of judicial review or the development of law in this field has been noticed hereinbefore particularly in the light of the decision of this Court in ABL International Ltd. each case however must be decided on its own facts. Public interest as noticed hereinbefore may be one of the factors to exercise the power of judicial review. In a case where a public law WPA 1998 OF 2020 element is involved judicial review may be permissible.Applying the ratio as laid down in the several Supreme Court judgements referred to hereinabove to the case in hand I find that the sanction letter dated 5th September 2005 issued by the respondent bank and accepted by the petitioners amounts to a non statutory contract. It also falls within the third category of cases referred to in M s Radhakrishna Agarwaltherefor lays no assistance to the petitioner in the facts of the instant case. In that view of the matter following the ratio laid down in M s Radhakrishna Agarwalno writ of order can be issued under Article 226 of the WPA 1998 OF 2020 Constitution of India in such cases to compel "the authority to remedy a breach of contract pure and simple" is an accepted proposition. The writ petition therefor is not maintainable l) The contract between the respondent bank and the petitioner clearly and unambiguously reveals that the petitioner after voluntarily accepting the conditions imposed by the respondent bank have entered into the realm of concluded contract pure and simple. The petitioner can only claim the right conferred upon it by the said contract and bound by the terms of the contract unless some statute steps in and confers some special statutory obligations on the part of the bank in the Indian Kanoon Maa Nandi Keshri Rice Mill & Anr vs The Union Of India & Ors on 6 May 2021 contractual field. The contract between the petitioner and the respondent bank so far as the issue of release of mortgage upon repayment of a portion of the aggregate loan does not include any statutory terms and or conditions. The petitioner s remedy if any lies for redemption of mortgage and not by filing writ petition seeking release of mortgage properties under the contract m) I have also considered the subject contract from another angle. In the light of the ratio laid down in ABL Internationalassuming without admitting that the valuation of the mortgaged properties done by the Bank in 2018 relied upon by the petitioner to be a disputed question of fact and that a Civil proceeding is the alternative remedy available to the petitioner to redress his grievances does not create an impediment in exercising the writ jurisdiction then also my answer will be the same as the contract in question is non statutory WPA 1998 OF 2020 in nature wherein remedy for a breach of contract pure and simple has been sought for. There is no public interest element involved in the matter no case to attract the provisions of Article 14 of the Constitution of India has also been made out. There is no mala fide or ulterior motive attributed to the bank which can compel interference under judicial review. The rejection to release the mortgaged properties does not involve any favouritism for which interference is required to prevent arbitrariness in the instant case. The bank has only said that unless the entire loan is repaid the mortgage cannot be released. This does not mean that the bank has acted mala fide or with an ulterior motive. It has only conveyed its view on an appreciation of the contract between itself and the petitioner. Merely because the respondent bank acts in compliance with the Reserve Bank of Indiaas held in Sagar Thomasthe respondent petitioner though may be a nationalized bank cannot be said to have failed in discharging any public function or public duty while carrying on business or commercial activity of Bank. Even if a writ petition is maintainable against the respondent bank then also the facts of the instant case does not permit interference in the matter by this Court in exercise of its jurisdiction under Article 226 WPA 1998 OF 2020 The writ petition therefor fails and the same is dismissed on the ground of maintainability as discussed above however without any order as to costs The petitioners will however be free to avail any other remedy that may be available to them in law on the selfsame cause as I have not gone into the merits of the matter save as required for adjudicating the maintainability point Urgent photostat certified copy of this judgment and order if applied for be supplied to the parties on priority basis after compliance with all necessary formalities Arindam Mukherjee J Indian Kanoon

The willingness of the accused to settle indicates merit in complainant’s case [S.138 NI Act]: Allahabad High Court

If the accused is willing to settle or compromise by way of compounding of offence at a later stage, it indicates some merit in the complainant’s case held by Justice Suresh Kumar Gupta in the case of Raj Trading Company V. State of U.P & Anr. [Application u/s 482 no – 12828 of 2020].  Facts related to this case is The application under Section 482 Crpc. has been filed with a prayer to quash the entire criminal proceedings of Complaint Case No. 1809 of 2015 New Number 1357 of 2017 (Registration No. 290 of 2017) under Sections 138 Negotiable Instrument Act M/s Kurlon Enterprises Ltd. Vs. Raj Trading Company, pending in the court of Additional Civil Judge (Junior Division)/Additional Chief Judicial Magistrate, Court No. 2, Ghaziabad. All the contentions raised by the learned counsel for the applicant relate to disputed questions of fact. The Hon’ble Court while examining application under S. 482 of Crpc to quash the entire criminal proceedings u/s 138 of NI Act pending in the court of Additional Civil Judge, observed that it is quite obvious that with respect to the offence of dishonour of cheques, it is the compensatory aspect of the remedy which should be given priority over the punitive aspect. It was also noted by the court that cheque bounce cases are indeed being compromised or settled by way of compounding, albeit during the later stages of litigation thereby contributing to undue delay in justice delivery.  It was further observed by the Court that “One explanation for such behaviour could be that the accused persons are willing to take the chance of progressing through the various stages of litigation and then choose the route of settlement only when no other route remains. While such behaviour may be viewed as rational from the viewpoint of litigants, the hard facts are that the undue delay in opting for compounding contributes to the arrears pending before the courts at various levels. If the accused is willing to settle or compromise by way of compounding of the offence at a later stage of litigation, it is generally indicative of some merit in the complainant’s case. In such cases, it would be desirable if parties choose compounding during the earlier stages of litigation.” Finally, with the aforesaid observations, this application was disposed of. Click here to read the judgement

Court No. 53 Case : APPLICATION U S 482 No. 128220 Applicant : Raj Trading Company Opposite Party : State of U.P. and Another Counsel for Applicant : Rajeev Chaddha Counsel for Opposite Party : G.A Hon ble Suresh Kumar Gupta J Heard learned counsel for the applicant the learned A.G.A. for the State and perused the entire record. This application under Section 482 Cr.P.C. has been filed with a prayer to quash the entire criminal proceedings of Complaint Case No. 18015 New Number 13517under Sections 138 Negotiable Instrument Act M s Kurlon Enterprises Ltd. Vs Raj Trading Company pending in the court of Additional Civil Judge Additional Chief Judicial Magistrate court No. 2 Ghaziabad. All the contentions raised by the learned counsel for the applicant relate to disputed questions of fact. The court has also been called upon to adjudge the testimonial worth of prosecution evidence and evaluate the same on the basis of various intricacies of factual details which have been touched upon by the learned counsel. The veracity and credibility of material furnished on behalf of the prosecution has been questioned and false implication has been pleaded. The law regarding sufficiency of material which may justify the summoning of accused and also the court s decision to proceed against him in a given case is well settled. The court has to eschew itself from embarking upon a roving enquiry into the last details of the case. It is also not advisable to adjudge whether the case shall ultimately end in conviction or not. Only a prima facie satisfaction of the court about the existence of sufficient ground to proceed in the matter is required. Through a catena of decisions given by Hon ble Apex Court this legal aspect has been expatiated upon at length and the law that has evolved over a period of several decades is too well settled The cases of Chandra Deo Singh Vs. Prokash Chandra Bose AIR 1963 SC 1430 Vadilal Panchal Vs. Dattatraya Dulaji Ghadigaonker AIR 1960 SC 1113 and Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi 1976 3 SCC 736 may be usefully referred to in this regard. The Apex Court decisions given in the case of R.P. Kapur Vs. State of Punjab AIR 1960 SC 866 and in the case of State of Haryana Vs. Bhajan Lal 1992 SCC(Cr.) 426 have also recognized certain categories by way of illustration which may justify the quashing of a complaint or charge sheet. Some of them are akin to the illustrative examples given in the above referred case of Smt Nagawwa Vs. Veeranna Shivalingappa Konjalgi 1976 3 SCC 736. The cases where the allegations made against the accused or the evidence collected by the Investigating Officer do not constitute any offence or where the allegations are absurd or extremely improbable impossible to believe or where prosecution is legally barred or where criminal proceeding is malicious and malafide instituted with ulterior motive of grudge and vengeance alone may be the fit cases for the High Court in which the criminal proceedings may be quashed Hon ble Apex Court in Bhajan Lal s case has recognized certain categories in which Section 482 of Cr.P.C. or Article 226 of the Constitution may be successfully Illumined by the case law referred to herein above this Court has adverted to the entire record of the case. The submissions made by the learned counsel for applicant call for adjudication on pure questions of fact which may be adequately adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case. This Court does not deem it proper and therefore cannot be persuaded to have a pre trial before the actual trial begins. A threadbare discussion of various facts and circumstances as they emerge from the allegations made against the accused is being purposely avoided by the Court for the reason lest the same might cause any prejudice to either side during trial But it shall suffice to observe that the perusal of the complaint and also the material available on record make out a prima facie case against the accused at this stage and there appear to be sufficient ground for proceeding against the accused. I do not find any justification to quash the complaint or the summoning order or the proceedings against the applicants arising out of them as the case does not fall in any of the categories recognized by the Apex Court which may justify their quashing. The prayer for quashing the same is refused as I do not see any abuse of the Court s process either. In the last the counsel has urged before the Court that the facts and circumstances of the case and the nature of offence involved are such in which the litigating parties should be given a chance to settle this matter amicably and for this purpose some protective direction may be given by this Court so that adequate steps may be taken in furtherance of the same object. The counsel has also placed reliance on the Apex Court given in the case of Damodar S. Prabhu Vs. Sayed Babalal H. 2010(5 SCC 663 in this regard. Submission is that the Apex Court decision has taken cognizance of the heavy pendency of the cases in the courts which may result ultimately in the chocking of criminal justice system. It has been urged that with the laudable object of providing the rival parties who have hitherto locked their horns in litigation an opportunity to arrive at a mutually agreeable settlement and put an end to the escalating litigation the compounding of the offence has not only been encouraged but in order to given incentive to do so at the earliest stage certain directions have also been issued by the Hon ble Supreme I have considered the last submission made by the counsel in the light of the aforesaid case law. It may be relevant to quote the observation made by the Hon ble Apex Court in the case of Damodar S. Prabhuat p. 5] : Unlike that for other forms of crime the punishment hereis not a means of seeking retribution but is more a means to ensure payment of money. The complainant s interest lies primarily in recovering the money rather than seeing the drawer of the cheque in jail. The threat of jail is only a mode to ensure recovery. As against the accused who is willing to undergo a jail term there is little available as remedy for the holder of the cheque. If we were to examine the number of complaints filed which were `compromised or `settled before the final judgment on one side and the cases which proceeded to judgment and conviction on the other we will find that the bulk was settled and only a miniscule number continued." 18. It is quite obvious that with respect to the offence of dishonour of cheques it is the compensatory aspect of the remedy which should be given priority over the punitive aspect. There is also some support for the apprehensions raised by the learned Attorney General that a majority of cheque bounce cases are indeed being compromised or settled by way of compounding albeit during the later stages of litigation thereby contributing to undue delay in justice delivery. The problem herein is with the tendency of litigants to belatedly choose compounding as a means to resolve their dispute. .................... 19. As mentioned earlier the learned Attorney General s submission is that in the absence of statutory guidance parties are choosing compounding as a method of last resort instead of opting for it as soon as the Magistrates take cognizance of the complaints. One explanation for such behaviour could be that the accused persons are willing to take the chance of progressing through the various stages of litigation and then choose the route of settlement only when no other route remains. While such behaviour may be viewed as rational from the viewpoint of litigants the hard facts are that the undue delay in opting for compounding contributes to the arrears pending before the courts at various levels. If the accused is willing to settle or compromise by way of compounding of the offence at a later stage of litigation it is generally indicative of some merit in the complainant s case. In such cases it would be desirable if parties choose compounding during the earlier stages of litigation. If however the accused has a valid defence such as a mistake forgery or coercion among other grounds then the matter can be litigated through the specified forums." It is deducible from the Apex Court decision that the submission made by the counsel is not without substance As requested by the counsel it is directed that the accused may appear before the court below within a period of one month from today through the representing counsel and move an application seeking compounding of offence through compromise. On such application being moved the concerned court may take adequate steps in accordance with law in this regard and shall provide further opportunity to the accused which shall not exceed a maximum period of four months from today to make an endeavour in this direction. Thereafter the court shall pass necessary orders specifically keeping in view the law laid down by the Apex Court in the case of Damodar S Prabhu within a period of three months from If the decision of the Court given in the light of the application does not conclude the proceedings against the accused and he is further required to appear and face the trial the court shall be at liberty to proceed in accordance with law against the accused and take all necessary steps and measures to procure his attendance as the law permits. In the aforesaid period of five months or till the decision given in the light of the application whichever is earlier no coercive measures shall be adopted against the accused applicant. It is further clarified that this order has been passed only with regard to the accused on behalf of whom this application u s 482 Cr.P.C. has been moved in this Court. With the aforesaid observations this application is disposed of. Order Date : 2.9.2020

“Appellant Authority found that the respondent is not obliged to provide information where the query is vague and not specific.”: SEBI, Part 1.

The appellate authority under the RTI (Right to Information) Act of the Securities and Exchange Board of India comprising of Mr. Anand Baiwar adjudicated in the matter of Prerit Misra v CPIO, SEBI, Mumbai (Appeal No. 4370 of 2021) dealt with an issue in connection with Section 2 (f) of the Right to Information Act, 2005. The appellant, Mr Prerit Misra had filed an application via RTI MIS Portal on the 19th of June, 2020 under the Right to Information Act, 2005. The respondent responded to the application by a letter on the 19th of July, 2021, filed by the appellate. After receiving a letter from the respondent on 19th of July, 2021, on his application, the appellate decided to file an appeal on the 20th of July, 2021. The appellant, vide his application dated June 19, 2021, inter alia, sought all the ATRs to complaints filed by the appellant on SCORES regarding Varun Shipping Ltd (Inc.Varun Global/Resources) from December 2015 to date. The appellant also specifically sought the ATR with respect to complaint number SEBIE/MH20/00….68/1. The respondent, in response to the application, informed that the query is vague and not specific and accordingly, the same cannot be construed as “information”, as defined under section 2(f) of the RTI Act. The respondent also observed that SEBI has responded multiple times (240 times on SCORES since November 03, 2015) to his grievances pertaining to Varun Global Ltd./Varun Resources Ltd. registered through SCORES platform and RTI applications.

Appeal No. 43721 BEFORE THE APPELLATE AUTHORITY Under the Right to Information Act 2005) SECURITIES AND EXCHANGE BOARD OF INDIA Appeal No. 43721 Prerit Misra CPIO SEBI Mumbai The appellant had filed an application dated June 19 2021under the Right to Information Act 2005from December 2015 to date. The appellant also specifically sought the ATR with respect to complaint number SEBIE MH20 00….68 1. The respondent in response to the application informed that the query is vague and not specific and accordingly the same cannot be construed as “information” as defined under section 2(f) of the RTI Act. The respondent also observed that SEBI has responded multiple times to his grievances pertaining to Varun Global Ltd. Varun Resources Ltd. registered through SCORES platform and RTI applications. The respondent also informed that Varun Resources Ltd. has been liquidated under the Insolvency and Bankruptcy Code 2016. Further Varun Global Limited published a Public Announcement notice in newspapers Financial Express and Jansatta on June 11 2018 pursuant to the grant of relaxation by SEBI vide letter dated October 31 2017 from the applicability of the Rule 19(2)(b) of the Securities Contracts Regulation) Rules 1957. It was also mentioned that Varun Global Ltd. is yet to approach the Exchange for listing. Further information was provided regarding approval of adjudication proceedings in the Appeal No. 43721 matter of Varun Global Ltd. the appellant was informed that any further regulatory action if taken by SEBI in the said matter will be published on the SEBI website. Additionally the respondent also stated that the above status has been informed to the appellant in reply to all the complaints filed by the appellant since 2020. A copy of the ATR pertaining to complaint number SEBIE MH20 00….68 1 was also provided to the appellant. 5. Ground of appeal The appellant has filed the appeal on the ground that access to the requested information was refused. The appellant in his appeal alleged that his SCORES account has been blocked and that the ATRs cannot be accessed. I note that the appellant has sought all ATRs regarding complaints filed by him against Varun Shipping Ltdfrom December 2015 to date. The appellant also specifically sought the ATR to complaint number SEBIE MH20 00….68 1. On consideration I find that neither the application nor the submissions made in the appeal clearly specify the exact details of the complaints in respect of which the ATRs were sought vs. B. Bharathi. has held that The action of the second respondent in sending numerous complaints and representations and then following the same with the RTI applications that it cannot be the way to redress his grievance that he cannot overload a public authority and divert its resources disproportionately while seeking information and that the dispensation of information should not occupy the majority of time and resource of any public authority as it would be against the larger public interest..." The Hon’ble CIC in the matter of Samir Sardana vs. CPIO Mormugao Port Trust also referred to the said observations made by the Hon’ble High Court while dismissing the appeal. I also note that in the context of misuse of provisions of RTI Act the Hon’ble CIC in R. P. Verma vs. CPIO Ordinance Factories strongly criticised the practice of filing multiple applications on similar matters. 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 10 2021 ANAND BAIWAR APPELLATE AUTHORITY UNDER THE RTI ACT SECURITIES AND EXCHANGE BOARD OF INDIA

E.A. Aboobacker & Ors. V/S State Of Kerala & Ors.

It is a settled position of jurisprudence that when the law prescribes a procedure to be followed for doing any act or thing then that procedure has to be followed and any violation of such procedure would make the act voidable, if not void. On 05.12.2005, the Government of Kerala accorded administrative sanction to acquire 177.79 acres of land in Ernakulam district for the purpose of the Infopark. The Government also accorded sanction to invoke the urgency clause under Section 17(1) of the Act. Thereafter, on 15.12.2005, the District Collector, Ernakulam issued a Government Order appointing the Special Tahsildar (LA), K.R.L. as the Land Acquisition Officer for the acquisition of land for the Infopark.Thereafter, a notification was issued under Section 4(1) of the Act. In the said notification, it is mentioned that in view of the order of the Government, application of Section 5(A) of the Act has been exempted by invoking the powers under Section 17(4) of the Act. According to the appellants 23.92 acres of land belonging to them was sought to be acquired along with the land of others. The appellants filed objections under Section 5A(1) of the Act.According to them no action was taken on their objections and, thereafter, they filed Writ Petition No.9735 of 2008 in the High Court of Kerala seeking various reliefs including quashing of the notification issued under Section 4(1) and 17(4) of the Act. The main ground raised was that the Special Tahsildar (LA), K.R.L. was not entitled to perform the functions of Collector under the Act.The stand of the State was that the Special Tahsildar (LA), K.R.L. was entitled to act as Collector for the entire Ernakulam District and was therefore empowered to act as Collector even in relation to land acquired for the Infopark. The writ court dismissed the writ petition in so far as this objection was concerned. The appellants filed Writ Appeal No.2446 of 2008 which was also dismissed on 06.01.2009. ISSUE BEFORE THE COURT: Whether the Special Tahsildar (Land Acquisition), Cochin Refineries Limited, Ernakulam, Vytilla, Cochin was empowered to act as Collector under the Land Acquisition Act, 1894 (hereinafter referred to as “the Act”), in respect of lands acquired by the State for an Infopark? RATIO OF THE COURTThe court observed that the State may in its wisdom appoint such officer for the entire district or for a special project. On perusal of the notification it is apparent that by the said notification the Government of Kerala had appointed an officer by the name of Special Tahsildar (LA), K.R.L., to perform the functions of a Collector under the Act only within the area of Ernakulam District, only in respect of any land within his jurisdiction for the acquisition of which a notification under subsection (1) of Section 4 of the Act has been published.In courts opinion, the State has empowered the specified officer i.e. the Special Tahsildar (LA), K.R.L. only in respect of the land for which the notification under subsection (1) of Section 4 had already been issued. The Special Tahsildar (LA) K.R.L. was not empowered by the notification of 21.08.1989 to issue any fresh notification in respect of other land.The court held that though the explanatory note may not be part of the notification the same can definitely be used to resolve the ambiguity, if any, in the notification. The explanatory note clearly indicates that the notification has been issued only to empower the officer to act as Collector in respect of 320 acres of land. It is a settled position of jurisprudence that when the law prescribes a procedure to be followed for doing any act or thing then that procedure has to be followed and any violation of such procedure would make the act voidable, if not void. There is no doubt that the State is empowered to appoint any officer other than a Collector or Deputy Commissioner to act as Collector.However, the notification should be clear as to for what purpose such Collector is being appointed. As far as the present case is concerned the Special Tahsildar (LA), K.R.L. was appointed as Collector only in respect of acquisition of land relating to Cochin Refineries Limited within Ernakulam District. The court further observed if the State wanted him to act as Collector in respect of other acquisitions, nothing prevented the State from issuing a fresh notification in this regard, but relying upon the notification dated 21.08.1989 the Special Tahsildar (LA), K.R.L. cannot act as Collector in respect of other acquisitions. This is not a hyper technical ground.The court finally observed that when the State wants to acquire the property of a citizen which is a constitutional right of any citizen under Article 300(A) of the Constitution of India it must strictly follow the procedure prescribed by law. It cannot urge that because the acquisition is in public interest a more liberal view is to be taken. DECISION HELD BY COURT: The appeals were accordingly allowed. Pending application(s) if any is also allowed. The judgments and orders of the High Court in Writ Appeal No.2446 of 2008 dated 06.01.2009 and Writ Petition No.9735 of 2008 dated 25.11.2008 are set aside in the aforesaid terms.Court also made it clear that no other point was raised before us and, therefore, the State can take appropriate action in accordance with law if it still wants to acquire the land.

the Special TahsildarCochin Refineries Limited Ernakulam Vytilla Cochin­19 K.R.L.”] was empowered to act as Collector under the Land Acquisition Act 1894 of the Act. Thereafter on 15.12.2005 the District Collector Ernakulam issued a Government Order appointing the Special Tahsildar K.R.L. as the Land Acquisition Officer for the acquisition of land for the Infopark the Government application of Section 5(A) of the Act has been was sought to be acquired along with the land of others. The appellants filed objections under Section 5A(1) of the Act According to them no action was taken on their objections and thereafter they filed Writ Petition No.9735 of 2008 in the High Court of Kerala seeking various reliefs including quashing of the notification issued under Section 4(1) and 17(4) of the Act. The not entitled to perform the functions of Collector under the Act was entitled to act as Collector for the entire Ernakulam District filed Writ Appeal No.2446 of 2008 which was also dismissed on 3. We have heard Shri R. Venkataramani learned senior counsel for the appellants Shri Basant R. learned senior counsel appearing for Infopark and Shri K.N. Balgopal learned senior counsel Collector has been defined under Section 3(c) of the Act as officer specially appointed by the appropriate Government to perform the functions of a Collector A bare reading of the provision makes it amply clear that the Collector. It is obvious that the State has to issue a specific notification to appoint any other officer to perform the duties of appropriate Government that land in any locality is for a company a notification to that effect shall be published in the Official Gazette and in two daily shall cause public notice of the substance of such In the present case the controversy revolves around the No.51590 BI 89 RD Dated Trivandrum 21st August 1989 of Section 3 of the Land Acquisition Act 1894the Government of Kerala hereby appoint the Special Tahsildar Cochin Refineries Limited Ernakulam Vytilla Cochin­19 to perform the functions of a and under sub section 2 of section 4 of the said Act authorize him his servants and workmen in exercise of the powers conferred under the said sub section in respect of any land within his As per the Government Order No. 1 89 ID dated 15.04.1989 Government have sanction creation of new special of land for the expansion of Cochin Refineries Limited Ambalamugal. In order to perform the function of a ‘Collector’ be authorized under Section 3 of the Land Acquisition Act of acquisition under Section 4 has already been published Therefore according to the appellants the Special Tahsildar K.R.L. has no power to act as Collector in respect of other The appellants also place reliance on the explanatory note and submit that though it may not be part of the notification but it K.R.L. was only in respect of 320 acres of land involved in the expansion of Cochin Refineries Limited and not for any other this notification the Special Tahsildar K.R.L. has been the District Collector has distributed the work to the Special notification the Government of Kerala had appointed an officer by the name of Special TahsildarK.R.L. to perform the functions of a Collector under the Act only within the area of Ernakulam On a careful analysis of the notification in our opinion the LA) K.R.L. only in respect of the land for which the notification under sub­section of Section 4 had already been issued. The same can definitely be used to resolve the ambiguity if any in the notification. The explanatory note clearly indicates that the notification has been issued only to empower the officer to act as 10. As far as the G.O. dated 15.12.2005 is concerned all that we need to say is that under Section 3(c) of the Act it is only the appropriate Government which can specifically appoint any other 11. The High Court took the view that since public interest is concerned a liberal view has to be taken and when acquisition lands required for public purpose such acquisition cannot be jurisprudence that when the law prescribes a procedure to be followed for doing any act or thing then that procedure has to be followed and any violation of such procedure would make the act to act as Collector. However the notification should be clear as to present case is concerned the Special Tahsildar K.R.L. was wanted him to act as Collector in respect of other acquisitions regard but relying upon the notification dated 21.08.1989 the State wants to acquire the property of a citizen which is a constitutional right of any citizen under Article 300(A) of the by law. It cannot urge that because the acquisition is in public taken is the legal view. In our considered opinion the Special entire District of Ernakulam and is empowered only in respect of acquisitions for which notification had already been issued for award and if we decide the matter against the State many complications may arise. We therefore make it clear that if any land owners have without any objection to the authority of the Writ Appeal No.2446 of 2008 dated 06.01.2009 and Writ Petition No.9735 of 2008 dated 25.11.2008 are set aside in the aforesaid us and therefore the State can take appropriate action in

“Under S.19(1) of the RTI Act an aggrieved person may prefer the first appeal within thirty days from the receipt of the response from the CPIO of the concerned public authority.”: SEBI, Part 1.

The appellate authority under the RTI (Right to Information) Act of the Securities and Exchange Board of India comprising of Mr. Amarjeet Singh adjudicated in the matter of Geeta Khattar v CPIO, SEBI, Mumbai (Appeal No. 4360 of 2021) dealt with an issue in connection with Section 19 (1) of the Right to Information Act, 2005. The appellant, Ms Geeta Khattar had filed an application via RTI MIS Portal on the 14th of April, 2021 under the Right to Information Act, 2005, which SEBI received on the 9th of April. The respondent responded to the application by a letter on the 7th of May, 2021, filed by the appellate. After receiving a letter from the respondent on 7th of May, 2021, on his application, the appellate decided to file an appeal on the 2nd of July, 2021. It was noted that under Section 19 (1) of the Right to Information Act, 2005, an aggrieved person may prefer the first appeal within thirty days from the receipt of the response from the CPIO of the concerned public authority. In the instant case, the impugned response from the respondent is dated 7th of May, 2021. The appellant, therefore, should have filed the first appeal on or before expiry of thirty days from the date of receipt of the said response. As noted above, the appellant has filed this first appeal on July 07, 2021 i.e. approximately three weeks after the last date permissible under the RTI Act. In this appeal, the appellant has neither requested for condonation of delay nor made any submission regarding the reason for the delay. In the absence of any reason that prevented the appellant from filing the first appeal in time, it was considered this appeal as time barred and hence, liable to be dismissed.

Appeal No. 43621 BEFORE THE APPELLATE AUTHORITY Under the Right to Information Act 2005) SECURITIES AND EXCHANGE BOARD OF INDIA Appeal No. 43621 Geeta Khattar CPIO SEBI Mumbai The appellant had filed an application dated April 14 2021 under the Right to Information Act 2005 of the RTI Act an aggrieved person may prefer the first appeal within thirty days from the receipt of the response from the CPIO of the concerned public authority. In the instant case the impugned response from the respondent is dated May 07 2021. The appellant therefore should have filed the first appeal on or before expiry of thirty days from the date of receipt of the said response. As noted above the appellant has filed this first appeal on July 07 2021 i.e. approximately three weeks after the last date permissible under the RTI Act. In this appeal the appellant has neither requested for condonation of delay nor made any submission regarding the reason for the delay. In the absence of any reason that prevented the appellant from filing the first appeal in time I consider this appeal as time barred and hence liable to be dismissed. 3. Notwithstanding the above observation I consider the appeal on merit. I have carefully considered the application the responses and the Appeal and find that the matter can be decided based on the material 4. Queries in the application The appellant vide her application dated April 14 2021 sought the available on record. following information: 1. Upload here a copy of IGRP dated November 24 2015. Appeal No. 43621 2. Upload the Exchanges Complaint Form so that against which complaint details IGRP dated November 24 2015 was called by the Exchange. 3. Provide the Exchange official web link where the data of the same complaint IGRP dated November 24 2015 details is electronically saved by the Exchange. 4. Provide the Exchange weblink where copy of IGRP dated November 24 2015 is electronically saved by the Exchange. The respondent in response to query number 1 informed that in IGRP proceedings complainant is one of the party to the proceedings appellant is one of the party to the proceedings. Further as per process the exchange forwards the IGRP order to the complainant. In the instant cases IGRP order November 24 2015 has already been forwarded by exchange and SEBI also uploaded the same on SCORES portal. Hence the appellant was advised to approach the concerned stock exchange for copy of the IGRP order. In response to query number 2 the respondent observed that the information sought is not available with SEBI. In response to query numbers 3 and 4 the respondent informed that copy of IGRP order dated November 24 2015 was uploaded on SCORES pursuant to complaint lodged by the appellant on the SCORES Portal. The respondent also stated that the appellant may directly approach the exchange for the requisite data pertaining to the exchange. 6. Ground of appeal The appellant has filed an appeal on the ground that the access to the information requested was refused. 7. Query number 1 I have perused the query and the response provided thereto. I note that the appellant sought copy of order passed by the IGRP. It is understood that the copy of the said order has already been forwarded by the exchange to the complainant. Further the respondent also stated that the said order has been uploaded on the SCORES portal against complaint filed by the appellant. I find that the information sought can be accessed by the appellant herself. Further the information which is already in the possession of the citizen cannot be said to be “held” by the public authority. In this context reference is made to the matter of Shri S.P. Goyal vs. Shri Pragati Kumar & Ors.wherein the Hon’ble CIC held that “Further the obligation of a respondent extends only to providing information which it “holds” or controls in terms of Section 2(f) of the RTI Act. If it can be established through evidence that a party applicant himself possesses an information which he has sought from a public authority such information can be denied to him. This appellant has already been provided the judgement dated 30.3.2007 of the Income Tax Appellate Authority. The information therefore is already in appellant’s possession and cannot therefore be said to be “held” much less “exclusively held” by the public authority in terms of Section 2(j) of the RTI Act.” In view of these observations I am of the view that the respondent is not obliged to provide the information sought by Appeal No. 43621 the appellant. Without prejudice to the same I note that the respondent has guided the appellant to approach the concerned stock exchange. Accordingly the query number 1 of the application is adequately addressed. Therefore I do not find any deficiency in the response. 8. Query number 2 On consideration I do not find any reason to disbelieve the observation of the respondent that the information sought is not available with SEBI. In this context I note that the Hon’ble CIC in the matter of Sh. Pattipati Rama Murthy vs. CPIO SEBI held: “… if itdoes not have any such information in its possession the CPIO cannot obviously invent one for the benefit of the Appellant. There is simply no information to be given.” In view of these observations I find that the information sought by the appellant was not available with SEBI and therefore the respondent cannot be obliged to provide such nonavailable information. 9. Query numbers 3 and 4 I have perused query numbers 3 and 4 and the response provided thereto. I note that the respondent has clearly informed regarding the availability of the IGRP order on the SCORES Portal since the complaint was lodged on the said portal. Further the appellant was also advised to directly approach the exchange for the requisite data pertaining to the exchange. On consideration I find that the respondent has adequately addressed the queries by providing the information available with him. Accordingly I do not find any deficiency in the response. In view of the above observations I find that there is no need to interfere with the decision of the respondent. The Appeal is accordingly dismissed. Place: Mumbai Date: July 27 2021 ANAND BAIWAR APPELLATE AUTHORITY UNDER THE RTI ACT SECURITIES AND EXCHANGE BOARD OF INDIA

An electricity connection cannot be denied to the occupant of a property on grounds of the title being disputed: High Court of Delhi

The electricity distributors cannot deny a connection to the occupier of a property on grounds of a title dispute of the mentioned property. This was held in the judgement passed by a single member bench of the High Court of Delhi consisting of Honourable Justice Sanjeev Sachdeva in the case of Sanjana v BSES Yamuna Power Ltd [W.P. (C) 7846/2021] pronounced on the 25th of August 2021. The petitioner, Sanjana resides in House No. 545 which is situated close to a shiv mandir in Patel Nagar, New Delhi since the time of her marriage in 2014. She applied for an electricity connection for her house which has been refused by the respondent on grounds that her house is not House of 545. The complainant, shiv mandir charitable trust alleged that one Kaushalya used to reside on the temple premise, now her son, wife and children have begun to live there without permission and the son’s wife Sanjana is seeking to have an electricity meter installed. The respondent, BSES Yamuna Power Ltd now contended that the house number of the petitioner ought to be 515 and that due to the disputed title, they would not grant electricity connection to the petitioner’s house. The perusal of the petitioner’s documents indicated and the petitioner, her husband and children all had valid Aadhaar Cards issued by the Government of India at House No. 545, Baba Farid Puri West Patel Nagar in Central Delhi. Additionally the petitioner also proved that her ration card which was approved by the Food Supply Officer on 15th October 2014 mentioned her address as House No. 545 and not 515. The court noted that the Respondent’s claim that the petitioner’s House No. was 515 was in fact baseless as there was no documentary evidence showing that she resided in any house other than House No. 545. It was further observed by the Court that since an electricity connection did not in any way confer a title to the occupant of a property, the occupant could not be denied a connection of grounds of a title dispute by the electricity providers.

IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on: 25th August 2021 W.P.(C) 7846 2021 SANJANA Petitioner BSES YAMUNA POWER LTD Respondent Advocates who appeared in this case: For the Petitioner : Mr. Harbeer S. Chadha Advocate For the Respondents : Mr. Rishabh Raj Jain Advocate CORAM: HON’BLE MR. JUSTICE SANJEEV SACHDEVA SANJEEV SACHDEVA J. The hearing was conducted through video conferencing. Petitioner seeks a direction to the respondent to grant an electricity connection to the property of the petitioner being House No. 545 Baba Farid Puri Patel Nagar New Delhi. It is contended that petitioner has been residing in the subject property since her marriage in 2014. Learned counsel for the petitioner submits that connection has not been provided on the W.P. (C)7846 2021 ground that petitioner has applied for a connection for house No. 545 however house of the petitioner is not 545. Learned counsel for the respondent under instructions submits that the house of the petitioner is right next to a Shiv Mandir which bears a number 515. He however concedes that the numbering in the area is not systematic. A rough site plan has been filed which has been prepared after an inspection which states that there is a property by the number 140 545 which is at a distance of about 60 meter from the site for which connection has been applied for. Learned counsel for the respondent submits that the exact number of the property of the petitioner could not be identified as there was no other indication except for the contention of the petitioner. It is further submitted that complaint has been received on 28.07.2014 from the Shiv Mandir Charitable Trust contending that one Smt. Kaushalaya used to reside in the Mandir for cleaning the temple premises and her son along with his wife and children had started residing in the Mandir illegally and they are seeking to have an electricity meter installed. Learned counsel for the respondent submits that the complaint alleges that the portion of the petitioner is property no. 515 which he W.P. (C)7846 2021 is claiming to be property no. 545 and that is the reason why the electricity connection could not be granted. Perusal of the documents filed along with the petition show that petitioner her husband and children all have Aadhar Cards issued by the Government of India at the address House No 545 Baba Farid Puri West Patel Nagar Central Delhi. Further petitioner has placed on record a ration card which has been approved by the Food Supply Officer on 15.10.2014 which also mentions the address as 545 Baba Farid Puri West Patel Nagar. Voter ID Card of the petitioner has also been placed on record of the same address. It is clear that petitioner has several documents which have been issued by the Government authorities showing that she is a resident of house no. 545 Baba Farid Puri West Patel Nagar New Delhi. There is no material placed on record by the respondent to counter this or to show that the property she is occupying bears some number other than house no. 545. In view of the above Respondents are directed to grant an electricity connection to the petitioner subject to petitioner complying with the commercial and other formalities as per the rules. W.P. (C)7846 2021 It is clarified that the grant of electricity connection or this order would not confer any special equities in favour of the petitioner and would not be construed as conferring or recognising the title of the petitioner to the said property or with regard to the identity of the said property. 13. Petition is allowed in the above terms. 14. Copy of the order be uploaded on the High Court website and be also forwarded to learned counsels through email by the Court AUGUST 25 2021 SANJEEV SACHDEVA J W.P. (C)7846 2021

Under certain circumstances, less than 5 people can be charged of wrongful assembly:Supreme Court

The apex court clarified the position as to whether in a case of wrongful assembly involving less than five people can be allowed in this appeal arising out of special leave petition at the Supreme Court Of India with bench consisting of Justice Ajay Rastogi and Justice Abhay S Oka in matters of Mahendra and Anr. v. State of MP Criminal Appeal No.- 30 of 2022 decided on 5.1.2022 . The facts of this case are the complainant went to the village to lift the engine of a tractor and while returning they were attacked by the the main accused and his sons along with 17 others unknown and unidentified , who verbally abused and wanted to kill them.All 20 people faced the trial and the Trial court convicted three of them under section 148, 325/149, 323/149 of IPC.The  Madhya Pradesh High Court upheld the conviction by trial court.This order of conviction is in challenge before this court. The counsel on behalf of the Appellant contended that it is an essential condition that there must be five or more persons for contemplating unlawful assembly which was not the case and only three accused were convicted.Hence the conviction is not untenable. The counsel on behalf of the Appellant contended that 20 people were chargesheeted and faced trial and thereafter, merely three accused persons were finally convicted and thus, requirement for five or more persons for unlawful assembly is completely “meted out and after the matter has been examined by the court” and requires no further interference into the merits of the case by this court. The Supreme Court held that it is undoubtedly membership of five or more persons is essential condition for unlawful assembly yet, it is not always necessary that all such accused persons be brought before the court and convicted.But when more than five people are chargesheeted and face trial and some of them are acquitted, if the remaining number of accused is less than five then, the remaining cannot be convicted under section 149 of IPC.So, section 149 of IPC which is unlawful assembly cannot be invoked against the accused.The judgement by Madhya Pradesh High Court was set aside and appeal was allowed.

149 of the IPC and sentence of one year RI and a fine of 18 others on that basis FIR was registered on 27.11.2004 at about 13.00 hours and a charge­sheet was submitted against the appellants and 18 other accused persons under Sections 148 294 341 149 325 149 323 149 abusing him with filthy language. They were Mahendra Singh Roop Singh Khilan Singh son of Halkai Bhujbal and 10 to 12 other persons whose names are not known to him. The Trial Court charge­sheeted 20 persons under Sections 148 294 341 149 325 149323 149324 149 and trial and three accused persons were finally convicted under note that one of the accused persons who were convicted namely Sardar Singh expired during pendency of criminal revision before the High Court and qua him the revision was The judgment dated 12.11.2008 came to be confirmed on appeal being preferred by the present appellants before the learned 3rd Additional Sessions Judge Vidisha by judgment sheet was originally filed against 20 persons and all of them against the judgment of acquittal passed by the Trial Court 325 149 and 323 149 IPC and it is not the case of the who could not be traced charged other than the persons who Counsel for the appellants submits that ingredients of be five or more and in the instant case out of 20 accused persons who faced trial three have been convicted by the Sections 148 325 149 and 323 149 IPC and the essential persons as contemplated under Section 141 IPC. Taking assistance thereof counsel submits that the conviction under the impugned judgment of the appellants under Sections 325 impugned submits that 20 persons were charge­sheeted who IPC the requirement of Section 141 which contemplates We have heard counsel for the parties and with their The legal position in regard to essential ingredients of an members of an unlawful assembly where an offence is committed by any member of such an unlawful assembly in 149 are that the offence must have been committed by any member of an unlawful assembly and Section 141 makes it assembly that an unlawful assembly is born provided of course the other requirements of the said section as to the common numbering in all more than five composed an unlawful assembly these others being persons not identified and un­ However in the instant case the persons are specifically named by the complainant and against them after the investigation charge­sheet was filed and all the 20 accused unnamed or unidentified persons other than the one who are charge­sheeted and faced trial. When the other co­accused there must have been some other persons along with the appellant in causing injuries to the victim. In the facts and The appellants may be held responsible for the offence if In the given facts and circumstances in our considered with the aid of Section 149 IPC at least could not have been That apart the appellants have also undergone three Consequently the appeal succeeds and is accordingly allowed. The judgment of the Trial Court dated 12.11.2008 convicting the appellants under Sections 148 325 149 and 323 149 IPC which came to be confirmed by the High Court under its revisional jurisdiction in Criminal Revision Pending application(s) if any shall stand disposed of ITEM NO.21 Court 13SECTION II A S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to AppealNo(s). 6530 2018 Arising out of impugned final judgment and order dated 25 06 2018 in CRLR No. 156 2009 passed by the High Court Of M.P At Gwalior MAHENDRA & ANR. PETITIONER(S VERSUS THE STATE OF M.P. RESPONDENT(S IA No. 101147 2018 EXEMPTION FROM FILING O.T Date : 05 01 2022 This matter was called on for hearing today CORAM : HON BLE MR. JUSTICE AJAY RASTOGI HON BLE MR. JUSTICE ABHAY S. OKA Mr. Somesh Chandra Jha AOR Ms. Deeksha Mishra Adv Mr. Veer Vikrant Singh Dy.AG Mr. Nirmal Kumar Ambastha Adv Mr. Pashupati Nath Razdan AOR Mr. Prakhar Srivastav Adv Ms. Sneh Bairwa Adv UPON hearing the counsel the Court made the following O R D E R The appeal is allowed in terms of the signed order Pending application(s) if any shall stand disposed of NIRMALA NEGI) COURT MASTER (NSH Signed order is placed on the file

Evidence of approximate age cannot take the place of proof of exact age: High Court of Patna

The evidence of date of birth asper the school records must be given the first preference and medical reports can be resorted only in the absence of such school certificates. This is mentioned in rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 and this was upheld by the Patna High Court by the Hon’ble Mr. Justice Birendra Kumar in the case of Arjun Kumar @ Prince Vs. The State of Bihar [CRIMINAL APPEAL (SJ) No.159 of 2018].  The brief facts of the case are, on 29.11.2015, the victim girl aged about 13 years she was ready to go for tuition. Just then a mobile call came on the mobile of her mother. The victim received the call. The appellant said that he wants to meet her and called her at once and proposed that appellant wants to marry with her. She left her house along with her brother, but the appellant induced her to go with him. Thereafter the appellant was in physical relation with her for three days. Later on brought her to railway station Dumrao and left her there. Then the victim telephonically informed to her mother. Her mother came and she went to her house. A medical examination was conducted on 04.12.2015 which revealed that the hymen was torn but there were no injuries that were present. Her statement was recorded asper the provisions of section 164 of the Code of Criminal procedure. On 13.11.2017, the trial judge convicted the appellant for offences under sections 366A and 376 of the Indian Penal Code and section 4 of the POCSO act. Aggrieved by this, the appellant filed the resent appeal before the Hon’ble High Court. The learned counsel for the appellant submits that, the victim had voluntarily gone with the appellant since she in her statement had disclosed that the appellant had called her 3 months prior and had disclosed his name. It was also observed that the victim had voluntarily left the house and there was no evidence of persuasion by the appellant to take her to Patna. Moreover, when she was in physical relation with the appellant for three days, she did not make any protest nor any complain to anyone. The learned additional public prosecutor contended that the victim was a minor and the same has been proved by the medical report. Since she was a minor, the act is still illegal since her consent is immaterial and the victim has consistently mentioned she was sexually exploited. The learned judge listened to both the parties and held that the main issue of the case was not whether there was presence of consent but whether the consent was material since the prosecution claims the girl to be under the age of 18. The court analysed the medical reports which revealed that the girl was between 15-16 years. The prosecution claims the girl to be 13-14 years. However, all these are approximates and there us no conclusion about the exact age of the victim. in State of Madhya Pradesh v. Munna @ Shambhoo Nath reported in (2016) 1 SCC 696, the Hon’ble Supreme Court held “that the evidence on approximate age of the victim would not be sufficient to any conclusion about the exact age of the victim”. In the case of Jarnail Singh v. State of Haryana reported in 2013 CRI. L.J. 3976, the Hon’ble Supreme Court said that “the age of the victim of rape should be determined in the manner provided under Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007”. This states that while determining the age of the victim, “preference is to be given to the school documents in determination of age of the victim. Only in absence of the school documents, the opinion of medical expert is permissible”. In the present case, he mother of the victim claimed that the victim was a student of Class VIII. This means that there is evidence available from the school to determine the date of birth but it was deliberately not brought on record by the prosecution. Since the prosecution had failed to prove the age of the girl was below 18, charge under Section 376 IPC and 4 of the POCSO Act fails since  the victim was in consensual relationship with the appellant. Since she was not a minor anymore, section 366A also fails.

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEALNo.1518 Arising Out of PS. Case No. 396 Year 2015 Thana DUMRAO District Buxar Arjun Kumar @ Prince S o Ram Prakash Shah R o Village Simari Deo P.S. Karahgar District Rohtas The State of Bihar ... Appellant s ... Respondent s Mr. Vikram Deo Singh Advocate. For the Appellant s Mr. Arabind Nath Pandey Advocate. For the Respondent s CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR Date : 07 07 2021 Mr. Bipin Kumar APP The sole appellant Arjun Kumar @ Prince faced trial in POCSO Case No. 016 arising out of Dumrao P.S Case No. 3915 for offence under Sections 363 366A and 376 of the Indian Penal Code as well as 4 of the POCSO Act By the impugned judgment dated 13.11.2017 the learned trial Judged found guilty and convicted to the appellant for offences under Sections 366A and 376 of the Indian Penal Code and 4 of the POCSO Act. By the impugned order of sentence dated 17.11.2017 the appellant was directed to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 20 000 for offence under Section 366A IPC. Three months imprisonment was ordered for non payment of the fine aforesaid. For the offence under Section 376 IPC the appellant was sentenced to undergo rigorous imprisonment of 10 years Patna High Court CR. APPNo.1518 dt.07 07 2021 and to pay a fine of Rs. 20 000 . In default of payment of fine three months imprisonment was ordered. No separate sentence under Section 4 of the POCSO Act was passed considering the provisions of Section 42 of the POCSO Act. 2. The prosecution case as disclosed in the written report of Pushpa Devithe mother of the victim girl is that on 29.11.2015 at about 10 a.m. her daughter aged about 13 years left the house for getting tuition. The youngest son Niku Kumar aged about 10 years reported that he had seen the victim girl going on an auto rickshaw towards the railway station. Soon thereafter the appellant from the referred mobile called to the informant and said that he is along with the victim girl and he is taking her to Patna for marrying with her. The informant alleges that her minor daughter was induced by the appellant for the purpose of marriage. On the written report aforesaid Dumrao P.S. Case No. 3915 was registered on 29.11.2015 itself On 03.12.2015 the victim girl was found at the railway station Dumrao by the police vide evidence of the investigating officer PW 6) in Para 6. Medical examination of the victim was done on 04.12.2015 vide report at Ext. 2 and her statement under Section 164 Cr.P.C. was recorded on 04.12.2015 itself vide Ext. Patna High Court CR. APPNo.1518 dt.07 07 2021 3. After investigation the police submitted chargesheet and accordingly the appellant was put on trial. The prosecution examined altogether 10 witnesses 4. PW 1 the victim girl consistent with her statement before the Magistrate under Section 164 Cr.P.C deposed that one year ago at 10 a.m. she was ready to go for tuition. Just then a mobile call came on the mobile of her mother. The victim received the call. The appellant said that he wants to meet her and called her at once and proposed that appellant wants to marry with her. She left her house along with her brother but the appellant induced her to go with him Thereafter the appellant was in physical relation with her for three days. Later on brought her to railway station Dumrao and left her there at. Then the victim telephonically informed to her mother. Her mother came and she went to her house. She went to the police station and her statement was recorded before the Magistrate. She was medically examined by the doctor. In the cross examination the witness said that the appellant had met her at the railway station. The people were coming and going at the railway station. She had not disclosed anyone that the appellant had induced her to go with him. Then the appellant purchased ticket and both took a train. Neither at the time of Patna High Court CR. APPNo.1518 dt.07 07 2021 boarding the train nor getting off the train she made any alarm She was kept in a house at Patna where no one was there. On all the three days she had herself locked the room from inside However whenever the appellant used to go outside he was locking the room from outside. After three days both came at Patna railway station and from there they again returned to Dumrao railway station PW 2 Dr. Bharti Dwivedi had medically examined the victim vide report at Ext. 2. According to PW 2 there was no external injury on the person of the victim. Her breasts were well developed. Axillary hairs and pubic hairs were present. The hymen was found ruptured. No spermatozoa was noticed in the vaginal swab. On the basis of dental and radiological examination the age of the victim was assessed between 15 16 years. PW 5 Dr. Yogendra Kumar had taken X ray of the victim and submitted a report on the basis of X ray examination However that report was not before him at the time of examination in court nor the same was brought on the record. PW 10 Dr. Ritesh Kumar Singh had submitted dental examination report of the victim but this report was also not brought on the record nor was there before PW 10 on the Patna High Court CR. APPNo.1518 dt.07 07 2021 date of his examination before the Court PW 3 Pushpa Devi is mother of the victim and she has supported what she had disclosed in the first information PW 4 Ram Niwas Singh is maternal grand father of the victim and he has supported the occurrence as a hearsay PW 6 Deepak Kumar is first investigating officer of the case and PW 7 Tarkeshwar Rai is second investigating officer of the case. Both have supported the investigation done by them. PW 8 Nikku Kumar Singh is younger brother of the victim. He has deposed that the appellant forcefully took the victim on an auto rickshaw going towards Dumrao railway station. His statement was got recorded before the police and the aforesaid statement is inconsistent with the case of PW 1 the victim girl who has said that the appellant was there at the railway station and was not in the auto rickshaw. PW 9 Navin Kumar Dubey is a witness on the first 5. Mr. Vikram Deo Singh learned counsel for the appellant submits that on bare perusal of the prosecution case Patna High Court CR. APPNo.1518 dt.07 07 2021 and prosecution evidences there is no case at all that the appellant committed offence under Section 366A IPC. Even if it is assumed for argument sake that a minor girl was induced to go there is no allegation that purpose was of illicit intercourse with another person. Therefore conviction under Section 366A IPC is bad in law. Learned counsel next contends that in her statement under Section 164 Cr.P.C. the victim stated that 3 4 months back the appellant had phoned on the mobile of her mother which the victim had received. The appellant disclosed his name and the victim voluntarily left her house to meet the appellant at Dumrao railway station. The conduct of the victim in voluntarily leaving the house alone meeting the appellant at the railway station and accompanying the appellant for Patna on a train and lack of evidence that the appellant had persuaded the victim to go to Patna on the pretext of some unreal purpose for taking her to Patna would make it clear that the prosecutrix had gone along with the appellant voluntarily. Moreover when she was in physical relation with the appellant for three days she did not make any protest nor any complain to anyone. The prosecution has failed to prove the exact age of the victim to substantiate that on the alleged date of occurrence Patna High Court CR. APPNo.1518 dt.07 07 2021 she was incapable of giving consent. The evidence of approximate age cannot take the place of proof of exact age. 6. Mr. Bipin Kumar learned APP contends that since the victim was a minor and there is no cross examination to the prosecution witnesses who had deposed that the victim was a minor including to the victim girl regarding correctness of her age. Therefore in absence of any other evidence the available evidence would show that the victim was a minor Once she was a minor her consent or no consent is immaterial for the purpose of consideration of charge against the appellant The victim is consistent that she was sexually exploited by the appellant. Therefore conviction requires no interference. F I N D I N G 7. It is not the prosecution case that the consent of the victim was obtained by fraud or by putting her or anyone in whom she was interested in fear of death or at the time of giving consent she was of unsound mind or under influence of intoxication consequently unable to understand the nature and consequence of that for which she gave consent. Rather prosecution case is that at the time of incident the victim was under 18 years of her age. Hence her consent was immaterial. 8. Now the question would be whether the Patna High Court CR. APPNo.1518 dt.07 07 2021 prosecution has proved beyond reasonable doubts that the victim was under 18 years of age at the time of physical relation with the appellant to bring the case under the mischief of clause ‘sixthly’ of Section 375 of the Indian Penal Code 9. The prosecution has sought to prove the age of the victim by asserting that from very inception it is case of the prosecution that the victim was aged about 13 14 years. The medical report also revealed that she was in between 15 16 years. The prosecution witnesses were not cross examined nor any suggestion was put forward by the defence that the witnesses were making wrong statement regarding age of the prosecutrix. On the basis of aforesaid material the prosecution claims that it has proved that the victim was below 18 years of age on the date of occurrence. As such her consent or no consent was immaterial. 10. In the case of Sunil v. The State of Haryana reported in AIR 2010 SC 392 the Hon’ble Supreme Court held that conviction cannot be based on an approximate age of the Similarly in State of Madhya Pradesh v. Munna Shambhoo Nath reported in1 SCC 696 the Hon’ble Supreme Court held that the evidence on approximate age of the Patna High Court CR. APPNo.1518 dt.07 07 2021 victim would not be sufficient to any conclusion about the exact age of the victim. In the case of Jarnail Singh v. State of Haryana reported in 2013 CRI. L.J. 3976 the Hon’ble Supreme Court said that the age of the victim of rape should be determined in the manner provided under Rule 12 of the Juvenile JusticeRules 2007 there is no difference as regards minority between the child in conflict with law and the child who is victim of crime. Under Rule 12(3) preference is to be given to the school documents in determination of age of the victim. Only in absence of the school documents the opinion of medical expert is permissible. 11. Rule 12 of the Juvenile Justice Rules 2007 reads as follows: “12. Procedure to be followed in determination of Age. 1) In every case concerning a child or a juvenile in conflict with law the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose 2) The Court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law prima facie on the basis of physical appearance or documents if available and send him to the observation home or in jail 3) In every case concerning Patna High Court CR. APPNo.1518 dt.07 07 2021 a child or juvenile in conflict with law the age determination inquiry shall be conducted by the court or the Board or as the case may be the Committee by seeking evidence by a)the matriculation or equivalent certificates if available and in the absence whereof ii) the date of birth certificate from the schoolfirst attended and in the absence iii) the birth certificate given by a corporation or a municipal authority or a panchayat b) and only in the absence of either(ii) orof clauseabove the medical opinion will be sought from a duly constituted Medical Board which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done the Court or the Board or as the case may be the Committee for the reasons to be recorded by them may if considered necessary give benefit to the child or juvenile by considering his her age on lower side within the margin of one year. and while passing orders in such case shall after taking into consideration such evidence as may be available or the medical opinion as the case may be record a finding in respect of his age and either of the evidence specified in any of the clauses(ii) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with 4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence on the basis of any of the conclusive proof specified in sub rulethe Court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person 5) Save and except where further inquiry or otherwise is required inter alia in terms of section 7A section 64 of the Patna High Court CR. APPNo.1518 dt.07 07 2021 Act and these rules no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub ruleof this rule The provisions contained in this rule shall also apply to those disposed of cases where the status of juvenility has not been determined in accordance with the provisions contained in sub rule and the Act requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law The aforesaid Rule was applicable on the date of occurrence of this case. An identical provision is there under Section 94 of the Juvenile Justice Act 2015 which came into effect from 15.01.2016 admittedly after the date of occurrence of this case. Thus it is evident from perusal of the Rule 12 above that only in absence of the school documents other evidences are permissible to determine the age of the juvenile victim. In this case the mother of the victimhas said that the victim was a student of Class VII. Therefore school document of age of the victim was there which was deliberately not brought on the record by the prosecution. Even the report of ossification radiological test was not produced to have opportunity to the defence to cross examine the experts regarding scientific method adopted by them while performing such examination. Therefore the evidence of exact date of birth Patna High Court CR. APPNo.1518 dt.07 07 2021 of the victim which was available with the prosecution was not brought on the record and the evidence of approximate age cannot take the place of proof of exact age. Once the prosecution failed to prove that the victim was below 18 years of age the above discussed evidence of her consent assumes importance. As noticed above the victim was in consensual relationship with the appellant. Therefore charge under Section 376 IPC and 4 of the POCSO Act fails. 12. Section 366A of the Indian Penal Code reads as 366A. Procuration of minor girl —Whoever by any means whatsoever induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years and shall also be liable to fine Evidently there is no prosecution case that a minor was induced to go for the purpose of illicit intercourse with another person. Therefore conviction of the appellant is illegal under Section 366A of the Indian Penal Code also 13. Thus the irresistible conclusion is that the prosecutrix was in consensual relationship with the appellant the prosecution has failed to prove that the victim was of the age Patna High Court CR. APPNo.1518 dt.07 07 2021 incapable of giving consent. Likewise the prosecution has failed to prove that the victim was induced to go with the appellant for the purpose of illicit intercourse with another person. 14. In the result the impugned judgment of conviction and order of sentence are hereby set aside and this appeal is allowed. Let the appellant be set free at once. Birendra Kumar J

One individual can not have two birth certificates as it is one of the identity of a person: High Court of Delhi

One individual cannot be permitted to hold two birth certificates containing two different birth dates as the identity of a person is established not only by his name and parentage but also by his date of birth and the same was upheld by high Court Of  Delhi through the learned HON’BLE MR. JUSTICE SANJEEV SACHDEVA in the case of VIPIN SEHRAWAT vs DEPUTY COMMISSIONER SDMC (W.P.(C) 1352/2022) on 22.02.2022 Facts of the case are that the petitioner was born in his house in the village. The counsel  submits that at the time when the birth certificate dated 24.09.2013 was got issued erroneously  the date of birth of the petitioner was mentioned as 01.11.2002 instead of 01.11.2001. He submits that petitioner today possesses two birth certificates one dated 24.09.2013 where the date of birth has been erroneously shown as 01.11.2002 and the other birth certificate dated 30.10.2015 where the correct date of birth of 01.11.2001 has been mentioned. In the entire educational record of the petitioner the correct date of birth i.e. 01.11.2001 has been mentioned, but in the passport that was obtained by the petitioner the date of birth has been mentioned as 01.11.2002. Counsel for respondent states that both the birth certificates were issued based on the reports of the District Magistrate certifying the date of birth which was in turn based on the information provided by the father of the petitioner. To which petitioner submits that father of the petitioner is an illiterate person and was not aware of the error committed by him. In the view of facts and circumstances the Court held that continuance of two birth certificates containing  two different dates of birth would imply that one individual can pose as two different individuals; which error cannot be permitted to perpetuate. Accordingly, it is also in public interest that one of the birth certificates be cancelled. Further, interest of justice also demands that one of the two certificates be cancelled. In view of the above, this petition is disposed of with a direction to the respondent to revoke the birth certificate dated 24.09.2013 issued in the name of ‘Vipin Sehrawat’ as it is also borne out from the educational record of the petitioner i.e. certificate issued by the CBSE.

IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on: 22.02.2022 W.P.(C) 1352 2022 VIPIN SEHRAWAT Petitioner DEPUTY COMMISSIONER SDMC Advocates who appeared in this case: For the Petitioner: Mr. Jai Singh Mann Advocate. For the Respondent: Mr. Arun Panwar Advocate. Respondent CORAM: HON’BLE MR. JUSTICE SANJEEV SACHDEVA SANJEEV SACHDEVA J.The hearing was conducted through video conferencing. Petitioner seeks a direction to the respondent to cancel the birth certificate of the petitioner issued on 24.09.2013. It is contended by the petitioner that the petitioner was born in his house in the village. He submits that at the time when the birth certificate dated 24.09.2013 was got issued erroneously the date of birth of the petitioner was mentioned as 01.11.2002 instead of 01.11.2001. He submits that petitioner today possesses two birth certificates one dated 24.09.2013 where the date of birth has been erroneously W.P(C) 1352 2022 1 shown as 01.11.2002 and the other birth certificate dated 30.10.2015 where the correct date of birth of 01.11.2001 has been mentioned. It is pointed out by learned counsel for the petitioner that in the entire educational record of the petitioner the correct date of birth i.e. 01.11.2001 has been mentioned however in the passport that was obtained by the petitioner the date of birth had been mentioned as 01.11.2002. Learned counsel for the petitioner submits that when petitioner applied for change of the date in his passport the issuing authority has cancelled the passport. Learned counsel appearing for the respondent Corporation submits that there is no rule providing for cancellation of a birth certificate. He further submits that both the certificates one dated 24.09.2013 and other dated 30.10.2015 were issued based on the reports of the District Magistrate certifying the date of birth which was in turn based on the information provided by the father of the Learned counsel for petitioner submits that father of the petitioner is an illiterate person and was not aware of the error committed by him. dates of birth. Petitioner is holding two birth certificates with two different 10. One individual cannot be permitted to hold two birth certificates W.P(C) 1352 2022 2 birth. containing two different birth dates as the identity of a person is established not only by his name and parentage but also by his date of 11. Continuance of two birth certificates containing two different dates of birth would imply that one individual can pose as two different individuals which error cannot be permitted to perpetuate. 12. Accordingly it is also in public interest that one of the birth certificates be cancelled. Further interest of justice also demands that one of the two certificates be cancelled. 13. The categorical stand of the petitioner is that the birth certificate dated 24.09.2013 contains an incorrect date of birth i.e. 01.11.2002 and the later birth certificate dated 30.10.2015 contains the correct date of birth i.e. 01.11.2001 which is also borne out from the educational record of the petitioner i.e. certificate issued by the CBSE of the secondary school examination and the certificate issued by the CBSE of the All India Senior School certificate examination as also the University documents. In view of the above this petition is disposed of with a direction to the respondent to revoke cancel the birth certificate dated 24.09.2013 issued in the name of ‘Vipin Sehrawat’ with the date of birth ‘01.11.2002’ name of the mother ‘Seema’ and name of the father ‘Satish Kumar’ bearing registration number ‘MCDOLIR 0113 W.P(C) 1352 2022 3 15. Petition is allowed in the above terms. 16. Copy of the order be uploaded on the High Court website and be also forwarded to learned counsels through email by the Court FEBRUARY 22 2022 SANJEEV SACHDEVA J. W.P(C) 1352 2022 4

It is judicial duty to take immediate and proximate facts into evidence to reach a reasonable conclusion – The SECURITIES AND EXCHANGE BOARD OF INDIA

It is judicial duty to take immediate and proximate facts into evidence to reach a reasonable conclusion – The SECURITIES AND EXCHANGE BOARD OF INDIA It is judicial duty to take immediate and proximate facts into evidence to reach a reasonable conclusion in a way an reasonable man would adopt to arrive one and applying the method the noticee was found to be indulged in not genuine trades and was the acts were found violative under section 15HA of the SEBI Act for the violation of regulation 3(a), (b), (c), (d), 4(1) and 4(2)(a) of PFUTP Regulations, 2003. the case was adjudicated by ANSUMAN DEV PRADHAN adjudicating officer in ADJUDICATION ORDER NO.: Order/AP/SS/2021-22/14720. The facts of the case were that the Securities and Exchange Board of India (SEBI) conducted investigation into the trading activity in illiquid stock options on Bombay Stock Exchange Limited (BSE) for the period April 01, 2014, to September 30, 2015, observing large scale reversal of trades in the Stock Options segment of the BSE. Pursuant to investigation, it was observed that during the period, total of 2,91,744 trades comprising substantial 81.40% of all the trades executed in stock options segment of BSE were non genuine trades. The non genuine trades resulted into creation of artificial volume in stock options segment of BSE during the IP. It was observed that Ms. Radha Devi Banka (Noticee) was one of the various entities who indulged in execution of reversal trades in stock options segment of BSE during the IP. Such trades were observed to be non-genuine in nature and created false and misleading appearance of trading in terms of artificial volumes in stock options segment and therefore were alleged to be manipulative, deceptive in nature In view of the same, SEBI initiated adjudication proceedings against the Noticee for violation of the provisions of Regulations 3(a), (b), (c), (d), 4(1) and 4(2)(a) of SEBI (Prohibition of Fraudulent and Unfair Trade Practices) Regulations, 2003 (PFUTP Regulations, 2003). SEBI appointed the undersigned as Adjudicating Officer under Section 15-I of the Securities and Exchange Board of India Act, 1992 (SEBI Act, 1992) read with Rule 3 of the SEBI (Procedure for Holding Inquiry and Imposing Penalties) Rules, 1995 (Adjudication Rules, 1995) to inquire against the noticee for the alleged violations of PFUTP Regulations, 2003 The adjudicating officer notices that the Noticee had executed reversal trades which were the non-genuine trades and the same led to the generation of artificial volume in stock options contracts at BSE and it is also noted that the matching of trades cannot be a mere coincidence and it shows that there is a clear meeting of minds because non-genuine trades cannot be conducted without meeting of minds at some level. After taking all the facts and circumstances into notice the officer is of the view that the Noticee indulged in execution of reversal trades in stock options on BSE in the Investigation Period which were non-genuine and created false and misleading appearance of trading in terms of artificial volumes in stock options, leading to violation of regulation 3(a), (b), (c), (d), 4(1) and 4(2)(a) of PFUTP Regulations, 2003. And imposed a penalty of ₹5,00,000/- on the noticee

BEFORE THE ADJUDICATING OFFICER SECURITIES AND EXCHANGE BOARD OF INDIA ADJUDICATION ORDER NO.: Order AP SS 2021 22 14720 UNDER SECTION 15 I OF THE SECURITIES AND EXCHANGE BOARD OF INDIA ACT 1992 READ WITH RULE 5 OF THE SECURITIES AND EXCHANGE BOARD OF INDIARULES In respect of: Radha Devi Banka PAN: AKNPB5833B In the matter of dealings in Illiquid Stock Options at BSE Securities and Exchange Board of India observed large scale reversal of trades in the Stock Options segment of the BSE Limitedleading to the alleged creation of artificial volume in the stock options segment. In this regard SEBI conducted an investigation into the trading activity in the illiquid Stock Options segment at the BSE for the period April 01 2014 to September 30 2015was one such client whose reversal trades involved squaring off open positions with a significant difference without any basis for such change in the contract price. The aforesaid reversal trades allegedly resulted into Adjudication Order in respect of Radha Devi Banka in the matter of dealings in Illiquid Stock Options at BSE generation of artificial volumes leading to allegations that the Noticee has violated the provisions of regulations 3(a)(c)and regulations 4(1) 4(2)(a) of the SEBIRegulations 2003 read with rule 3 of the SEBI Rules 1995 hereinafter referred to as “Adjudication Rules”) vide order dated July 02 2021 to inquire into and adjudge under section 15HA of the SEBI Act against the Noticee for the alleged violation of the aforesaid provisions of PFUTP Regulations 2003. SHOW CAUSE NOTICE REPLY AND HEARING 4. A 09 hereinafter referred to as “SCN”) was issued to the Noticee under Rule 4(1) of the Adjudication Rules to show cause as to why an inquiry should not be initiated against the Noticee and why penalty should not be imposed on the Noticee under Section 15HA of the SEBI Act for the violations alleged to have been committed 5. The SCN issued to the Noticee inter alia mentioned alleged the following: by the Noticee. 5. The Noticee was one of the entities which indulged in reversal trades which allegedly created false and misleading appearance of trading generating artificial volumes in the Stock Options Segment of BSE during the investigation Adjudication Order in respect of Radha Devi Banka in the matter of dealings in Illiquid Stock Options at BSE period. The Noticee is alleged to have engaged in reversal trades through 2 trades in 1 unique contract which led to generation of alleged artificial volume of 35 000 units. These trades of the Noticee involved reversal with the same counterparty on the same day but at different prices. 7. A summary of dealings of Noticee in 1 Stock Options contract in which the said Noticee allegedly executed reversal trades during the investigation period is as … follows: S. No. Contract Name Rate in Rs.) no. of no. of by Noticee contract to Volume in by Noticee Volume in BIOC15JUL480.00PE 17 500 17 500 8. The abovementioned reversal trades and volumes are illustrated through the dealings of Noticee in the one contract viz “BIOC15JUL480.00PE” during the investigation period as follows: a) During the investigation period 2 trades for 17 500 units were executed by the Noticee in the said contract on July 06 2015. b) While dealing in the said contract on July 06 2015 at 14:38:15 hrs the Noticee entered into a buy trade with counterparty Blow Agency Pvt Ltd for 17 500 units at ₹5 per unit. At 14:38:20 hrs the Noticee entered into a sell trade with the same counterparty for 17 500 units at ₹16.50 per unit. Adjudication Order in respect of Radha Devi Banka in the matter of dealings in Illiquid Stock Options at BSE The Noticee’s two trades while dealing in the above said contract during the investigation period allegedly generated artificial volume of 35 000 units which made up 13.36% of total market volume in the said contract during this period. 9. In view of the foregoing it is alleged that Noticee by indulging in execution of non genuine reversal of trades in Stock Options with same entities on the same day created false and misleading appearance of trading in stock options and therefore allegedly violated Regulation 3(a)(c)4(1) 4(2)(a) of PFUTP Regulations 2003. 6. The SCN was served on the Noticee via Registered Post Acknowledgement Due hereinafter referred to as “RPAD”) and via email dated July 09 2021. Thereafter the Noticee vide email dated August 24 2021 submitted the following: 6.1 That the Noticee acted as bonafide trader investor and have transacted in stock option segment in normal course of dealing and her trading in the same was very much within her own financial and risk. 6.2 That in any business activity in stock market one can either make profit or loss that at the relevant time she had no idea of any profit or loss in said transaction and that she traded in option segment taking into account her ‘risk and reward ‘parameters. 6.3 That she was not connected to the counterparty of her transaction in the option segment and neither did she have any relation with promoters directors key management person of underlying scrips in cash segment. In this regard the Noticee relied on the judgments of the Hon’ble Securities Appellate Tribunal hereinafter referred to as “SAT”) in the matters of Jagruti Securities LtdS P J Stock Brokers Pvt Ltdand Saroj & Co. proprietor Sanjay AgrawalLtd. And orsdecided on June 15 2007. Adjudication Order in respect of Radha Devi Banka in the matter of dealings in Illiquid Stock Options at BSE 7. In the interest of natural justice and in terms of the Adjudication Rules the Noticee was provided with an opportunity of personal hearing in the matter on September 07 2021 through the online Webex platform. Mr. Ankit Daga Chartered Accountant appeared as the Authorised Representativeon behalf of the Noticee on the stipulated date of hearing. During the course of the hearing the AR reiterated the submissions made by the Noticee in her reply dated August 24 2021. The AR mentioned about a delay of approximately 6 years in issuing the SCN and quoted the judgment of the SAT in the matter of Ashlesh Gunvantbhai Shah in this regard. Further the AR mentioned that considering the case of Bhavesh Pabarithe penalty provided under section 15HA can be waived or further reduced from the minimum penalty prescribed under the Act by keeping in view the circumstance prescribed under section 15J. Therefore the AR requested that no penalty should be levied and if any penalty is levied then the same should be bare minimum and less than the penalty prescribed under the section. The AR also requested time to submit additional written submissions and the said request was acceded to by the 8. Vide email dated September 20 2021 the AR submitted a scanned copy of letter dated September 15 2021. The Noticee reiterated the decisions of the Hon’ble SAT in the case of Ashlesh Gunvantbhai Shah with respect to the delay in issuance of SCN and of the Hon’ble Supreme Court of India in the case of Bhavesh Pabari regarding waiving penalty or reducing penalty below the minimum prescribed under section 15HA of SEBI Act. Further the Noticee laid emphasis to Section 15J of SEBI Act which needs to be taken into account while adjudging penalty. It was also mentioned that from the alleged transactions neither any loss was caused to an investor or group of investors nor the transaction was of repetitive nature as there was only one transaction. It was submitted that the Noticee is a senior citizen. The profit from the alleged transactions was very minimal only ₹2 01 250 . Adjudication Order in respect of Radha Devi Banka in the matter of dealings in Illiquid Stock Options at BSE Therefore no penalty should be levied and in case penalty is levied it should be commensurate with alleged offence. CONSIDERATION OF ISSUES AND FINDINGS I have taken into consideration the facts and circumstances of the case the material documents made available on record and the submissions of the Noticee. The issues that arise for consideration in the instant case are : a) Whether the Noticee has violated the provisions of Regulations 3(b) c) 4(1) and 4(2)(a) of PFUTP Regulations 2003 b) Does the violation if any attract monetary penalty under section 15HA of the SEBI Act c) If so what would be the quantum of monetary penalty that can be imposed on the Noticee after taking into consideration the factors mentioned in section 15J of the SEBI Act 10. Before advancing into the merits of the case I would like to deal with the issue pertaining to the delay as alleged by the Noticee in SEBI not discharging its obligations of quick investigation. 11. I note that there is no provision under SEBI Act which prescribes a time limit for taking cognizance of a breach of the provision of SEBI Act and Rules and Regulations made thereunder. Further as per Section 11C of SEBI Act SEBI can initiate investigation at any point of time for any period of alleged violation or any period of alleged transactions. 12. In this regard I feel it is pertinent to note that in the matter of SEBI Vs Bhavesh PabariSCC Online SC 294 the Hon’ble Supreme Court of India has inter alia observed as follows: “There are judgments which hold that when the period of limitation is not prescribed such power must be exercised within a reasonable time. What would Adjudication Order in respect of Radha Devi Banka in the matter of dealings in Illiquid Stock Options at BSE be reasonable time would depend upon the facts and circumstances of the case nature of the default statute prejudice caused whether the third¬party rights had been created etc.” 13. Further I note that the Hon’ble SAT in the matter of Pooja Vinay Jain vs. SEBI Appeal No. 1519 Date of Decision 17.03.2020) held that “The record would show that all the documents concerning the defense of the appellant were filed by her before the AO. Therefore for want of any prejudice the proceedings cannot be quashed simply on the ground of delay in launching the same”. 14. I also note that the Hon’ble SAT in the matter of Bipin R Vora vs. SEBI held that “As regards the plea of delay and latches and submission that the show cause notice is barred by limitation I do not find any merit in these contentions as the time and efforts involved in an investigation though may vary from case to case generally investigations per se is a time consuming process which invariably involve collection scrutiny and careful examination of voluminous records order trade details of all the concerned including the exchanges recording of statements etc. and therefore no time limit can be fixed in this regard to enable a regulator to take appropriate disciplinary action for the safeguard and improvement of the system market”. 15. I note that the investigations relating to the PFUTP Regulations 2003 are complex considering the volume of transactions connections and examination of trading of shares etc.) and time consuming. In the instant matter I note that a total of 14 720 entities were involved in the generation of artificial volume by executing non genuine reversal trades in the illiquid Stock Options segment at BSE during the investigation period. Initiation of proceedings against the said 14 720 entities is a humungous task and therefore considering the available resources the proceedings were initiated against the entities in a staggered manner. I also note that SEBI had framed a settlement scheme in accordance with the provisions of the SEBIRegulations 2018 which provided a onetime opportunity to the concerned entities to settle the proceedings in the matter of Adjudication Order in respect of Radha Devi Banka in the matter of dealings in Illiquid Stock Options at BSE dealings in illiquid Stock Options at BSE. I observe that the said scheme was kept open for a period of initially 3 monthsand then extended till December 31 2020 to enable the entities to avail the benefit of the scheme in view of the disruptions caused due to the Covid 19 pandemic. A total of 1 018 entities had availed the benefit of the Scheme and remitted the specified settlement amounts and a Settlement Order was passed by SEBI on January 15 2021. Subsequently proceedings against remaining entitieswere proceeded with and accordingly the SCN was issued against the Noticee. 16. In view of the aforesaid and considering the facts of the present matter I do not find any merit in the aforesaid contentions of the Noticee. 17. With respect to the alleged violations in the instant matter I note that it is pertinent to refer to the relevant provisions of the PFUTP Regulations 2003 which are reproduced as follows: PFUTP Regulations 2003 3. Prohibition of certain dealings in securities No person shall directly or indirectly— a) buy sell or otherwise deal in securities in a fraudulent manner b) use or employ in connection with issue purchase or sale of any security listed or proposed to be listed in a recognized stock exchange any manipulative or deceptive device or contrivance in contravention of the provisions of the Act or the rules or the regulations made there under c) employ any device scheme or artifice to defraud in connection with dealing in or issue of securities which are listed or proposed to be listed on a recognized stock exchange Adjudication Order in respect of Radha Devi Banka in the matter of dealings in Illiquid Stock Options at BSE engage in any act practice course of business which operates or would operate as fraud or deceit upon any person in connection with any dealing in or issue of securities which are listed or proposed to be listed on a recognized stock exchange in contravention of the provisions of the Act or the rules and the regulations made there under. 4. Prohibition of manipulative fraudulent and unfair trade practices 1) Without prejudice to the provisions of regulation 3 no person shall indulge in a fraudulent or an unfair trade practice in securities. 2) Dealing in securities shall be deemed to be a 6[manipulative] fraudulent or an unfair trade practice if it involves fraud and may include all or any of the following namely : in the securities market a) indulging in an act which creates false or misleading appearance of trading 18. I note that the allegation against the Noticee is that while dealing in the stock option contracts at BSE during the Investigation Period the Noticee had executed reversal trades which were allegedly non genuine trades and the same had resulted in generation of artificial volume in stock options contracts at BSE. Reversal trades are considered as those trades in which an entity reverses its buy or sell positions in a contract with subsequent sell or buy positions with the same counterparty during the same day. The said reversal trades are alleged to be non genuine as they are not executed in the normal course of trading lack basic trading rationale lead to false or misleading appearance of trading in terms of generation of artificial volumes and hence are deceptive and manipulative. 19. I note from the trade log of the Noticee that the Noticee had traded in 1 unique contract in stock options segment of BSE during the Investigation Period. It is observed that the Noticee had executed 2 non genuine trades in 1 contract. I further note that the above mentioned trades of the Noticee had resulted in the Adjudication Order in respect of Radha Devi Banka in the matter of dealings in Illiquid Stock Options at BSE creation of artificial volume of a total of 35 000 units in the said 1 contract. The summary of the non genuine trades of the Noticee are as follows: Contract Name Avg Buy Buy Qty Avg Sell Sell Qty of non of artificial of artificial Rate No. of Rate No. of of noticee in the generated by generated by in ₹) in ₹) noticee in the noticee in the the contract to noticee’s total total volume trades in the volume in the 17 500 17 500 20. It is noted that the Noticee had executed non genuine trades in 1 contract wherein the percentage of non genuine trades of the Noticee to the total trades in the contract was 25%. Further the artificial volume generated by the Noticee in the contract amounted to a substantial 100% of total volume generated by her in the contract. It is also noted that artificial volume generated by the Noticee contributed 13.36% to the total volume from the market in the said contract. The non genuine trades executed by the Noticee in the above contract had significant difference between buy and sell rates considering that the trades were reversed on the same 21. Upon perusing the trade log I note that the trades executed by the Noticee in the contract were squared up within a short span of time with the same counterparty. To illustrate on July 06 2015 at 14:38:15.691986 the Noticee placed a buy limit order for 17 500 units at a price of ₹5.00 per unit and the said order was matched with the sell limit orderof counterparty client Blow Agency Private Limited. I note that the said sell limit order was placed at 14:38:15.676178 i.e. before the entry of the buy limit order by the Noticee. I also note that there was no modification of either price or quantity by either the Noticee or the counterparty and the buy limit order of the Noticee got executed into trade immediately upon its entry. Subsequently at 14:38:20.285526 Adjudication Order in respect of Radha Devi Banka in the matter of dealings in Illiquid Stock Options at BSE the Noticee placed a sell limit order for 17 500 units at a price of ₹16.50 per unit and the said order was matched with the same counterparty who placed a buy limit order for the same quantityand price indicates a prior meeting of minds with a view to execute the reversal trades at a predetermined price. Since these trades were done in illiquid option contracts there was very little trading in the said contract and hence there was no price discovery in the strictest terms. The wide variation in prices of the said contracts within a short span of time is a clear indication that there was pre determination in the prices by the counterparties while executing the trades. Therefore it is observed that the Noticee had indulged in reversal trades with her counterparty in the stock options segment of BSE and the same were non genuine trades. 23. With regard to the contention of the Noticee that there was no major movement in price of underlying scrip on account of her trading in the options of the scrip I note that the SCN issued to the Noticee did not allege that on account of the trading of the Noticee in the options there was a major movement in the price of the underlying scrip. Instead the SCN alleged the execution of non genuine reversal trades in the illiquid stock options at BSE which has been detailed above. Therefore I do not find any merit in the contentions of the Noticee in this regard. Adjudication Order in respect of Radha Devi Banka in the matter of dealings in Illiquid Stock Options at BSE 24. With regard to the contention of the Noticee that the allegation of creation of artificial or reversal trade is of no consequence in the option segment of the exchange I wish to rely on the following observations of the Hon’ble Supreme Court in the matter in respect of SEBI v Rakhi Trading Private Limitedin which the Hon’ble Supreme Court has held the following: “The stock market is not a platform for any fraudulent or unfair trade practice. The field is open to all the investors. By synchronization and rapid reverse trade as has been carried out by the traders in the instant case the price discovery system itself is affected. Except the parties who have pre fixed the price nobody is in the position to participate in the trade. It also has an adverse impact on the fairness integrity and transparency of the stock market.” Therefore I do not find any merit in the contentions of the Noticee in this regard. 25. The Noticee has contended that the alleged 2 trades were carried out on the anonymous screen based trading platform provided by BSE where the identity of the counterparty remains inaccessible to all and hence the question of any non genuine trade did not arise at all unless it was proved that such trades were executed by the Noticee in connivance with any counterparty. In this regard I place reliance on the judgment of Hon’ble Supreme Court in the matter in respect of SEBI v Rakhi Trading Private Limitedin which the Hon’ble Supreme Court has held the following: “Considering the reversal transactions quantity price and time and sale parties being persistent in number of such trade transactions with huge price variations it will be too naive to hold that the transactions are through screen based trading and hence anonymous. Such conclusion would be over looking the prior meeting of minds involving synchronization of buy and sell order and not negotiated deals as per the board s circular. The impugned transactions are manipulative Adjudication Order in respect of Radha Devi Banka in the matter of dealings in Illiquid Stock Options at BSE deceptive device to create a desired loss and or profit. Such synchronized trading is violative of transparent norms of trading in securities.....” 26. Therefore I find that it cannot be a mere coincidence that Noticee could match its trades with the same counterparty with whom she had undertaken first leg of the respective trades. It indicates meeting of minds. In this context I would also like to rely on the judgment of the Hon’ble Supreme Court of India in SEBI Vs Kishore R Ajmerawherein it was held that “…in the absence of direct proof of meeting of minds elsewhere in synchronized transactions the test should be one of preponderance of probabilities as far as adjudication of civil liability arising out of the violation of the Act or provision of the Regulations is concerned. The conclusion has to be gathered from various circumstances like that volume of the trade effected the period of persistence in trading in the particular scrip the particulars of the buy and sell orders namely the volume thereof the proximity of time between the two and such other relevant factors. The illustrations are not exhaustive...” 27. The Hon’ble Supreme Court of India further held in the same matter that “…It is a fundamental principle of law that proof of an allegation levelled against a person may be in the form of direct substantive evidence or as in many cases such proof may have to be inferred by a logical process of reasoning from the totality of the attending facts and circumstances surrounding the allegations charges made and levelled. While direct evidence is a more certain basis to come to a conclusion yet in the absence thereof the Courts cannot be helpless. It is the judicial duty to take note of the immediate and proximate facts and circumstances surrounding the events on which the charges allegations are founded and to reach what would appear to the Court to be a reasonable conclusion therefrom. The test would always be that what inferential process that a reasonable prudent man would adopt to arrive at a conclusion.” Adjudication Order in respect of Radha Devi Banka in the matter of dealings in Illiquid Stock Options at BSE 28. In the instant matter I note that though direct evidence regarding meeting of minds or collusion of the Noticee with the counterparty is not forthcoming the trading behavior of the Noticee makes it clear that the aforesaid non genuine trades could not have been possible without meeting of minds at some level. In this context I find it pertinent to refer to the Hon’ble SAT Order dated July 14 2006 in the matter of Ketan Parekh Vs SEBIwherein the Hon’ble SAT has held that “…The nature of transactions executed the frequency with which such transactions are undertaken the value of the transactions the conditions then prevailing in the market are some of the factors which go to show the intention of the parties. This list of factors in the very nature of things cannot be exhaustive. Any one factor may or may not be decisive and it is from the cumulative effect of these that an inference will have to be drawn.” 29. Additionally the Hon’ble SAT in its judgment dated September 14 2020 in the matter of Global Earth Properties and Developers Pvt. Ltd. Vs SEBIrelied upon the aforesaid judgment of the Hon’ble Supreme Court and held that “…It is not a mere coincidence that the Appellants could match the trades with the counter party with whom he had undertaken the first leg of respective trade. In our opinion the trades were non genuine trades and even though direct evidence is not available in the instant case but in the peculiar facts and circumstances of the present case there is an irresistible inference that can be drawn that there was meeting of minds between the Appellants and the counter parties and collusion with a view to trade at a predetermined price.” 30. Further with regard to the submission of the Noticee regarding no penalty to be imposed or imposition of penalty lower than the minimum prescribed under Section 15HA of SEBI Act against the Noticee in the instant matter since the Noticee executed 2 trades in 1 unique contract I wish to rely on the judgment dated November 24 2021 of the Hon’ble SAT in the matter of Radha Malani vs. SEBI appeal no. 6921) wherein the Hon’ble SAT has observed the following: Adjudication Order in respect of Radha Devi Banka in the matter of dealings in Illiquid Stock Options at BSE “Having heard the learned counsel for the appellant in our view the controversy involved in the present appeal is squarely covered by a decision of this Tribunal in Global Earth Properties and Developers Pvt. Ltd. vs. SEBI(b) (d) 4(1) and 4(2)(a) of PFUTP Regulations 2003 by the Noticee stands established. The Hon’ble Supreme Court of India in the matter of SEBI Vs Shri Ram Mutual Fund 68 SCL 216(SC) held that “…In our considered opinion penalty is attracted as soon as the contravention of the statutory obligation as contemplated by the Act and the Regulations is established and hence the intention of the parties committing such violation becomes wholly irrelevant..” 32. In view of the aforesaid judgment of the Hon’ble Supreme Court I am convinced that in the instant matter the Noticee is liable for monetary penalty under the provisions of section 15HA of the SEBI Act which reads as follows: Penalty for fraudulent and unfair trade practices 15HA. If any person indulges in fraudulent and unfair trade practices relating to securities he shall be liable to a penalty which shall not be less than five lakh rupees but which may extend to twenty five crore rupees or three times the amount of profits made out of such practices whichever is higher. Adjudication Order in respect of Radha Devi Banka in the matter of dealings in Illiquid Stock Options at BSE 33. While determining the quantum of penalty under section 15 HA of the SEBI Act it is pertinent to consider the relevant factors stipulated in section 15J of the SEBI Act which reads as under : Factors to be taken into account while adjudging quantum of penalty 15J. While adjudging quantum of penalty under 15 I the adjudicating officer shall have due regard to the following factors namely: a) the amount of disproportionate gain or unfair advantage wherever quantifiable made as a result of the default b) the amount of loss caused to an investor or group of investors as a result of c) the repetitive nature of the default. the default Explanation.—For the removal of doubts it is clarified that the power of an adjudicating officer to adjudge the quantum of penalty under sections 15A to 15E clauses and of section 15F 15G 15H and 15HA shall be and shall always be deemed to have been exercised under the provisions of this 34. I observe that the instant matter is concerned with the creation of artificial volume through the execution of reversal non genuine trades and hence I am of the view that it is not necessary to deal with the unfair gains made or losses avoided by the 35. Therefore I note that the Noticee indulged in execution of reversal trades in stock options on BSE in the Investigation Period which were non genuine and created false and misleading appearance of trading in terms of artificial volumes in stock options leading to violation of regulation 3(a) (c) 4(1) and 4(2)(a) of PFUTP Regulations 2003. Noticee. 36. After taking into consideration all the facts and circumstances of the case the material documents made available on record including the submissions of the Adjudication Order in respect of Radha Devi Banka in the matter of dealings in Illiquid Stock Options at BSE Noticee the factors mentioned in section 15J of the SEBI Act and in exercise of the power conferred upon me under section 15 I of the SEBI Act read with rule 5 of the Adjudication Rules I hereby impose a penalty of ₹5 00 000 on the Noticee viz. Ms. Radha Devi Banka under section 15HA of the SEBI Act for the violation of regulation 3(a) (c) 4(1) and 4(2)(a) of PFUTP Regulations 2003. I am of the view that the said penalty is commensurate with the lapse omission committed by the Noticee. 37. The Noticee shall remit pay the said amount of penalty within 45days of the receipt of this order either by way of Demand Draftin favour of “SEBI Penalties Remittable to Government of India” payable at Mumbai or through online payment facility available on the website of SEBI i.e. www.sebi.gov.in i.e. ENFORCEMENT Orders Orders of AO PAY NOW. 38. The Noticee shall forward the aforesaid DD payment confirmation details to the Division Chief Enforcement Department I Division of Regulatory Action IV SEBI Bhavan II Plot No.C7 A ‘ G’ Block Bandra Kurla Complex Bandra Mumbai 400 051 and also send an email to tad@sebi.gov.in with the following detail: Name of the ‘Payer Noticee’ along with PAN of Noticee Case Name Date of Payment Amount Paid Transaction No. Bank Name and Account No. Purpose of payment Adjudication Order in respect of Radha Devi Banka in the matter of dealings in Illiquid Stock Options at BSE 39. In the event of failure to pay the aforesaid amount of penalty within 45 days of receipt of this Order recovery proceedings may be initiated under section 28A of the SEBI Act for realization of the said penalty amount along with interest thereon inter alia by attachment and sale of movable and immovable properties. 40. In terms of Rule 6 of the Adjudication Rules a copy of this order is sent to the Noticee and SEBI. Date: January 17 2022 ANSUMAN DEV PRADHAN Place: MUMBAI ADJUDICATING OFFICER Adjudication Order in respect of Radha Devi Banka in the matter of dealings in Illiquid Stock Options at BSE

Welfare of child important for custody – Supreme Court re-iterates

In the case of Sri Nilanjan Bhattacharya Vs State of Karnataka [Civil Appeal No 3284 of 2020], Supreme Court held that it would be beneficial for the child to return to the native state because of the differences in language and social customs. The appellant is aggrieved by the conditions which were imposed by the High Court while allowing him to take the child back to the United States of America. The appellant challenged the correctness of conditions (a) and (b) contained in the judgment of the High Court. The appellant and the Respondent are married and were based in India at the time of the wedding and later moved to US. They had a child together who is a US citizen. The Respondent planned to travel to India for a short period with the child after which she informed the appellant of her plans not to return to the US and to continue to reside in India together with the child. The efforts of the appellant to persuade the respondent to return to the US have not succeeded the appellant filed for custody and for the return of the minor child before the Superior Court of New Jersey. Superior Court of New Jersey granted legal and temporary custody of the child to the appellant. The appellant has also filed for divorce before the court in New Jersey. Subsequently, the appellant filed a petition in the High Court whose Division Bench allowed the petition and granted the request of the appellant to allow him to take the minor child with him to the US. While doing so, the High Court imposed two conditions – “Under the circumstances, this writ petition is allowed holding that the minor child – Master Adhrit Bhattacharya is required to be repatriated to USA in compliance of the order of New Jersey Court. However, the repatriation shall not be made until normalcy is restored with reference to health scenario in USA in the aftermath of COVID – 19 pandemic. Therefore, we would observe as under: (a) That the minor child shall be repatriated only after a certificate being issued by the Officer of the rank of District Health Office of Bengaluru in certifying that this Country is free of COVID – 19 pandemic and it is safe for the travel of minor child to USA; (b) Simultaneously the petitioner herein shall also secure a certificate from the concerned Medical authority at USA in certifying that the condition in USA, particularly in the region where the petitioner is residing is congenial for shifting the residence of minor child – Master Adhrit Bhattacharya in compliance of the order passed by the Court of New Jersey;” Supreme Court observed that in cases where the child is brought to India from a foreign country, which is their native country, the Court may undertake a summary inquiry or an elaborate inquiry. The Court exercises its summary jurisdiction if the proceedings have been instituted immediately after the removal of the child from their state of origin and the child has not gained roots in India. The court relied on the case of Prateek Gupta vs. Shilpi Gupta (2018) 2 SCC 309, where it was clarified that even if there is a pre-existing order of a foreign court with respect to the custody of the child, the principles of comity of courts, and intimate contact and closest concern are subservient to the predominant consideration of the welfare of the child. In that case, the parents and their minor child were residing in the US. After the separation of the parents, the father left the US with the child to come to India without any prior intimation. A US Court passed an order that the mother has the sole physical and legal custody of the child and declared that the father will not have any visitation rights since he had violated an interim order of the Court directing him to return with the child to the Commonwealth of Virginia. After due deliberation the court has come to the conclusion that “the welfare of the child would best be served by his accompanying the appellant to the US. The child was born in the US and is a citizen of the US by birth. The appellant has taken the responsibility for shared parenting while the child was in the US. The respondent left US shores for a brief sojourn but has unilaterally resolved not to return.” The principal challenge in the appeal relates to the two conditions which have been imposed by the High Court while allowing the appellant to take the child with him to the US. The conditions which have been imposed by the High Court have been assailed on the ground that they are unenforceable – “Condition (a) requires the appellant to obtain a certificate from an officer of the rank of the District Health Officer of Bengaluru certifying that ‘this country’, that is to say, India is free of the Covid-19 pandemic and it is safe for the minor child to travel to the US. Requiring the appellant to obtain a certificate of this nature that India is free of the Covid-19 pandemic serves no purpose. Moreover, it has been stated that the appellant would comply with all prevailing regulations including public health regulations facilitating the journey to the US. The second condition which has been imposed in the judgment of the High Court, similarly requires the appellant to secure a certificate from ‘the concerned medical authority’ in the US certifying the condition in the US, particularly in the region where the appellant is residing and of its being congenial for shifting of the residence of the minor child to New Jersey. The appellant has submitted, and with justification, that it will be impossible to obtain a certificate of this nature in the absence of any particular authority being entrusted with the jurisdiction to issue a certificate of this kind. Moreover, the appellant has filed on the record a statement indicating that at present there are only nine positive cases of Covid-19 in Bayonne, New Jersey where the appellant has his ordinary place of resident.” The court concluded by holding that the conditions which were imposed by the High Court were the consequence of a well-meaning exercise. But that does not render them proper or correct.

IN THE CIVIL APPELLATE JURISDICTION Civil Appeal No 32820 Arising out of SLPNo 71420 Sri Nilanjan Bhattacharya Appellant(s The State of Karnataka and Others JUDGMENT Dr Justice Dhananjaya Y Chandrachud This appeal arises from a judgment of a Division Bench of the High Court of Karnataka on a petition for habeas corpus filed by the appellant who is the father of a three and a half year old child. The appellant is aggrieved by the conditions which were imposed by the High Court while allowing him to take the child back to the United States of America The appellant married the second respondent on 30 November 2012. The marriage was registered at Aranmula in Kerala on 25 February 2013. The appellant and the second respondent who were based in India at the time of the wedding moved to the US in April 2015. The appellant relocated to the US at the behest of his employer. Once the couple reached the US the WWW.LIVELAW.IN CA 3284 2020 second respondent found employment as a management consultant in New Jersey. The parties resided for a period of three years in New Jersey after which the respondent was employed as a Software Engineer in New York. On 25 December 2016 Adhrit was born to the appellant and the second respondent. The child is a US citizen. In March 2019 the second respondent planned to travel to India for a short period with the child. After reaching India the second respondent is alleged to have informed the appellant of her plans not to return to the US and to continue to reside in India together with the child. The appellant came to Bengaluru on 28 March 2019 when he states that he made an effort to contact the second respondent. On 13 April 2019 the appellant met the second respondent to explore an amicable resolution of the issues which the couple had faced in the marriage. The appellant was given access to the child on 13 14 and 15 April 2019. The efforts of the appellant to persuade the second respondent to return to the US have not succeeded. On 16 April 2019 the appellant filed for custody and for the return of the minor child before the Superior Court of New Jersey Hudson County Chancery Division Family Part. The second respondent was served on 26 April 2019. On 21 May 2019 the Superior Court of New Jersey granted legal and temporary custody of the child to the appellant. The appellant has also filed for divorce on 6 June 2019 before the court in New Jersey. On 10 July 2019 the appellant filed a petition before this Court under Article 32 of the Constitution seeking writ of a habeas corpus. The petition was withdrawn with liberty to move the appropriate forum which resulted in the filing of a habeas corpus petition before the High Court of Karnataka on 13 WWW.LIVELAW.IN CA 3284 2020 August 2019. By its judgment dated 7 April 2020 the Division Bench allowed the petition and granted the request of the appellant to allow him to take the minor child with him to the US. While doing so the High Court imposed two conditions in paragraph 18 of its judgment and order dated 7 April 2020 which form the subject matter of the present proceedings. Paragraph 18 of the judgment is extracted below “Under the circumstances this writ petition is allowed holding that the minor child Master Adhrit Bhattacharya is required to be repatriated to USA in compliance of the order of New Jersey Court However the repatriation shall not be made until normalcy is restored with reference to health scenario in USA in the aftermath of COVID 19 pandemic. Therefore we would observe as under a) That the minor child shall be repatriated only after a certificate being issued by the Officer of the rank of District Health Office of Bengaluru in certifying that this Country is free of COVID 19 pandemic and it is safe for the travel of minor child to USA b) Simultaneously the petitioner herein shall also secure a certificate from the concerned Medical authority at USA in certifying that the condition in USA particularly in the region where the petitioner is residing is congenial for shifting the residence of minor child Master Adhrit Bhattacharya in compliance of the order passed by the Court of New c) On production of such documents the authorities concerned are directed to permit repatriation of the minor child Master Adhrit Bhattacharya from Bengaluru India to USA d) While doing so it is also observed that in the event if the respondent wife is reconsidering her decision in relocating herself to USA and settle there in the interest of the minor child all liberties are reserved to her to take the child along with her subject to securing the certificate as referred to supra and on reaching USA to approach the competent court which has passed the interim order of custody of minor child to the petitioner and also WWW.LIVELAW.IN CA 3284 2020 for modification of the same by explaining the circumstances under which she is staking her claim for the custody of the child ” The appellant has challenged the correctness of conditions and andwhich have been imposed by the High Court in its impugned order While the Court is conscious of the fact that the Special Leave Petition merely challenges the conditions subject to which the habeas corpus petition has been allowed the welfare of a minor child of less than five years of age is involved in the present case. Having regard to the nature of the jurisdiction of this Court we are of the view that the ends of justice would be served if an amicus curiae is appointed to assist the Court since the second respondent has not entered appearance through WWW.LIVELAW.IN CA 3284 2020 counsel. The office report dated 25 August 2020 indicates that service has been effected Prabhjit learned counsel appearing on behalf of the petitioner states that the child is presently with the maternal grand parents at Vadodara. We request Ms. Vibha Datta Makhija senior counsel to assist the Court as amicus curiae. Ms Makhija would be at liberty to furnish the name of an advocate to the Registry who would assist her in the matter. The Registry shall prepare and forward a complete set of papers to the amicus curiae List the Special Leave Petition on 9 On 9 September 2020 on the request of the amicus curiae we had granted liberty to her to establish contact with the second respondent in order to ascertain her desires and to enable a proper representation to be made on behalf of the respondent before this Court. In pursuance of the previous order the amicus curiae has informed the Court that the Advocate on Record Mr. Gaurav Khanna communicated with the second respondent on email and thereafter the amicus curiae has also had a detailed conversation with the second respondent on telephone. Ms. Makhija has informed the Court that the second respondent has informed her that she has no objection to complying with the order of the High Court to enable the child to travel with the appellant to New Jersey. The second respondent has informed the amicus curiae that she has no desire to contest a legal battle Though the second respondent has not entered appearance despite being served with the proceedings this Court considered it necessary to take a view which is in the overarching interest of the minor child who is within its WWW.LIVELAW.IN CA 3284 2020 jurisdiction. In several recent decisions of this Court bearing on the issue it has been held that when confronted with a habeas corpus petition the existence of an order of the foreign court is one circumstance which is borne in mind by the Court. The Court will have regard to whether the lawful custody of one of the spouses has been disturbed by the other. The most significant consideration is the welfare of the child. In Nithya Anand Raghvan vs. State8 SCC 454 WWW.LIVELAW.IN CA 3284 2020 the case to ascertain the paramount welfare of the child leaving such inquiry to the foreign court. However this Court clarified that “40...In either situation be it a summary inquiry or an elaborate inquiry the welfare of the child is of paramount consideration.” While discussing the powers of the High Court in issuing a writ of habeas corpus in relation to the custody of a minor child this Court further observed “46… 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 execution In Prateek Gupta vs. Shilpi Gupta2 this Court clarified that even if there is a pre existing order of a foreign court with respect to the custody of the child the principles of comity of courts and “intimate contact and closest concern” are subservient to the predominant consideration of the welfare of the child. In that case the parents and their minor child were residing in the US. After the separation of the parents the father left the US with the child to come to India without any prior intimation. A US Court passed an order that the mother has the sole physical and legal custody of the child and declared that the father will not have any visitation rights since he had violated an interim order of the Court directing him to return with the child to the 22 SCC 309 WWW.LIVELAW.IN CA 3284 2020 Commonwealth of Virginia. Thereafter the mother invoked the writ jurisdiction of the High Court of Delhi seeking a remedy of the writ of habeas corpus against the father alleging that he has the child in unlawful custody The High Court observed that the most intimate contact of the parties and the child was with the US Court which had the closest concern with the well being of the child and directed the father to hand over the custody to the mother. The decision of the High Court was set aside by this Court. While referring to the doctrines of the principle of comity of courts and of “intimate contact and closest concern” this Court observed: “49…Though the principle of comity of court and aforementioned doctrines qua a foreign court from the territory of which the child is removed are factors which deserve notice in deciding the issue of custody and repatriation of the child it is no longer res integra that the ever overriding determinant would be the welfare and interest of the child 50. The doctrines of “intimate contact” and “closest concern” are of persuasive relevance only when the child is uprooted from its native country and taken to a place to encounter alien environment language custom etc. with the portent of mutilative bearing on the process of its overall growth and grooming.” 12 Where a child has been removed from their native country to India this Court has held that it would be in the best interests of the child to return to their native country if the child has not developed roots in India and no harm would be caused to the child on such return. In V Ravi Chandran vs. Union of India3 this Court observed “32. Admittedly Adithya is an American citizen born and brought up in the United States of America. He has spent his initial years there. The natural habitat of Adithya is in the United States of 31 SCC 174 WWW.LIVELAW.IN CA 3284 2020 America. As a matter of fact keeping in view the welfare and happiness of the child and in his best interests the parties have obtained a series of consent orders concerning his custody parenting rights maintenance etc. from the competent courts of jurisdiction in America 35… There is nothing on record which may even suggest that it would be harmful for the child to be returned to his native country 36. It is true that the child Adithya has been India for almost two years since he was removed by the mother Respondent 6 contrary to the custody orders of the US court passed by the consent of the parties. It is also true that one of the factors to be kept in mind in exercise of the summary jurisdiction in the interest of the child is that application for custody return of the child is made promptly and quickly after the child has been removed. This is so because any delay may result in the child developing roots in the country to which he has been removed. From the counter affidavit that been filed by Respondent 6 it is apparent that in the last two years Adhitya did not have education at one place. He has moved from one school to another. He was admitted in a school at Dehradun by Respondent 6 but then removed within a few months and the child has been admitted in some school in Chennai. 37…In these circumstances there has been no occasion for the child developing roots in this The respondent arrived in India with the child in March 2019. The appellant filed for custody and for return of the minor child before the Superior Court of New Jersey Hudson County Chancery Division Family Part on 16 April 2019 which awarded him temporary custody on 21 May 2019. On 10 July 2019 the appellant filed a petition under Article 32 of the Constitution seeking a writ of a habeas corpus before this Court. This Court granted the appellant liberty to move the appropriate forum. Thereafter the appellant filed a habeas corpus petition before the High Court of Karnataka on 13 August 2019. The above sequence of events makes it evident that the appellant has acted promptly to WWW.LIVELAW.IN CA 3284 2020 secure the custody of the child. In such an event this Court is only required to conduct a summary inquiry to ascertain whether there is any harm if the child returns to the US where he was born and has been brought up. The Court is required to engage in an elaborate inquiry on the merits of the case only if a considerable time has passed since the child has been removed and if the child has developed roots in India. In either event the primary consideration of this Court is to ascertain the welfare of the child. 14 From this perspective Mr. Prabhjit Jauhar learned Counsel appearing on behalf of the appellant has filed a note of submissions indicating that the appellant has taken an active interest even during the time when the child was based in the US to ensure that he fully participates in the daily activities of the child. The appellant has provided in a tabulated form instances of having exclusively taken the child either on vacation or otherwise for short periods. The tabular statement is extracted below ALONE VACATIONS STAY OF MINOR CHILD WITH THE PETITIONER 30th March 2018 2nd April 2018 29th May 2018 1st June 2018 4th June 2018 6th June 2018 11th June 2018 15th June 2018 20th June 2018 Minor child alone went for holiday to Ocean City with Petitioner for petitioner’s birthday Stayed with the petitioner alone including going with the petitioner to his office in the backup day care Stayed with the petitioner alone including going with the petitioner to his office in the backup day care Stayed with the petitioner alone including going with the petitioner to his office in the backup day care Stayed with the petitioner alone including going with the petitioner to his office in the backup day care WWW.LIVELAW.IN CA 3284 2020 29th June 2018 17th July 2018 28th July 2018 Stayed with the petitioner alone including going with the petitioner to his office in the backup day care Minor child alone stayed with petitioner and did not go to day care after Doctor’s appointment in the morning Minor child alone stayed with petitioner and did not go to day care after the petitioner took the child for his 05th September The minor child travelled with the petitioner to India and stayed with him for 6 weeks. During this time the petitioner went to Kolkata first and then to Bangalore Also went to Masangudi forest for a weekend retreat 30th September 2nd October 2018 7th October 2018 12th October 2018 Minor child alone stayed with petitioner over the weekend and did not go to day care on Monday as the petitioner worked from home The child alone travelled with the petitioner and his visiting paternal grandmother aunt and uncle to vacation across the states of Vermont Massachusetts and New Hampshire 26th October 2018 28th October 2018 Minor child alone stayed with petitioner over the weekend and did not go to day care on Friday as the petitioner worked from home Minor child alone went for holiday to Cape May and Virginia Beach with petitioner for Thanksgiving holidays 21st November 25th November 25th December 27th December 12th February 16th February 20th February 24th February The minor child stayed alone with the petitioner on the child’s 2nd birthday when the petitioner threw a big Stayed with the petitioner alone including going with the petitioner to his office in the backup day care as the respondent was supposedly preparing appearing for Stayed with the petitioner alone including going with the petitioner to his office in the backup day care as the respondent was supposedly preparing appearing for WWW.LIVELAW.IN CA 3284 2020 27th February 2nd March 2019 14th March 2019 15th March 2019 17th March 2019 18th March 2019 Stayed with the petitioner alone including going with the petitioner to his office in the backup day care as the respondent was supposedly preparing appearing for Stayed with the petitioner alone including going with the petitioner to his office in the backup day care as the respondent was supposedly preparing appearing for Stayed with the petitioner alone including going with the petitioner to his office in the backup day care as the respondent was packing for a trip to Bengaluru for some wedding a week before the petitioner was supposed to go to Bengaluru himself 15 Moreover it has been stated that the appellant who is employed as a Vice President with Goldman Sachs in New Jersey on a remuneration of US 164 000 per annum has sufficient time at his disposal to look after the welfare of the child. Mr. Jauhar has also stated before the Court that the appellant’s mother would be accompanying him to New Jersey to provide additional care and support for the welfare of the child. However the Court been apprised of the fact that the appellant is ready and willing to provide financial assistance to enable the second respondent to travel to New Jersey if she is so inclined and if she does so the appellant would make arrangements for her residential accommodation and stay close to the place of the residence of the child. Alternatively it has been submitted by Mr Jauhar that if the second respondent is not desirous of living in the US the appellant would be ready and willing to abide by such directions as may be issued by the Court to ensure that the second respondent has continued WWW.LIVELAW.IN CA 3284 2020 access to the child. During the course of the hearing the Court has been apprised of the fact that should the second respondent not be willing to relocate to the US the appellant shall provide access through video conferencing on Fridays Saturdays and Sundays to the second respondent for at least a duration of thirty minutes and even more should the child and the second respondent so the appellant would be ready and willing to bear the expenses of the second respondent for travel to the US for a period of ten days once in a year for the purpose of meeting the child and iii) the appellant would bring the child to India for a period of ten days on an annual basis when access would be provided to the second respondent 16 Before we address ourselves to the two conditions we must at the outset determine as to whether the arrangement which has been envisaged by the High Court in its judgment is in the interest of the welfare of the child Though the appellant only challenges the two conditions we are still inclined to enquire into this issue having regard to the parens patriae jurisdiction of this Court. After hearing Mr. Prabhjit Jauhar learned Counsel for the appellant and Ms. Vibha Datta Makhija Senior Counsel appearing as amicus curiae we are of the view that the interest and welfare of the child would be subserved by affirming the direction of the High Court to enable the appellant to take the child with him to the US. The child was born in the US Undoubtedly the child is less than four years of age today. Equally the Court has borne in mind the fact that the second respondent has not shown WWW.LIVELAW.IN CA 3284 2020 any particular inclination to retain the child with her in India. The appellant has provided extensive details of his association with the child and the steps which he has taken since the birth of the child to be associated with the upbringing of the child. In fact during the course of the hearing Mr. Jauhar learned Counsel for the appellant even offered that the appellant would share on the video conferencing platform the videos which the appellant has of his association with numerous activities of the child. The Court has come to the conclusion that the welfare of the child would best be served by his accompanying the appellant to the US. The child was born in the US and is a citizen of the US by birth. The appellant has taken the responsibility for shared parenting while the child was in the US. The respondent left US shores for a brief sojourn but has unilaterally resolved not to return. Both the appellant and the respondent are qualified professionals who have been employed in the US and the appellant continues to be employed there. Faced with the departure of his spouse and child the appellant moved the court of jurisdiction in New Jersey for orders of temporary custody. He has followed their tracks to India and invoked judicial remedies here. The child has remained here for a short period and it would not be contrary to his interest to allow the appellant to take him back. Hence independent of the desire communicated by the respondent to the amicus curiae that she does not wish to contest the proceedings the Court has concluded that the direction of the High Court to allow the child to return to the US is in the interest of his welfare. We have enquired into this aspect though the Special Leave Petition by the petitioner is only as regards the conditions for return imposed by the High Court. This Court has an WWW.LIVELAW.IN CA 3284 2020 overarching duty to ensure and preserve the welfare of a minor child within 17 The principal challenge in the appeal relates to the two conditions which have been imposed by the High Court while allowing the appellant to take the child with him to the US. The conditions which have been imposed by the High Court have been assailed on the ground that they are unenforceable Conditionrequires the appellant to obtain a certificate from an officer of the rank of the District Health Officer of Bengaluru certifying that “this country” that is to say India is free of the Covid 19 pandemic and it is safe for the minor child to travel to the US. Requiring the appellant to obtain a certificate of this nature that India is free of the Covid 19 pandemic serves no purpose. In the Special Leave Petition that has been filed before this Court the appellant has in fact tendered an undertaking that it is only if and when the Government of India and the Government of Karnataka lift the lock down and permit international travel that the appellant would venture to take the child to the US. Moreover it has been stated that the appellant would comply with all prevailing regulations including public health regulations facilitating the journey to the US. The second condition which has been imposed in the judgment of the High Court similarly requires the appellant to secure a certificate from “the concerned medical authority” in the US certifying the condition in the US particularly in the region where the appellant is residing and of its being congenial for shifting of the residence of the minor child to New Jersey. The appellant has submitted and with justification that it will be impossible to obtain a certificate of this nature in the absence of any particular authority being entrusted with the jurisdiction to issue a certificate WWW.LIVELAW.IN CA 3284 2020 of this kind. Moreover the appellant has filed on the record a statement indicating that at present there are only nine positive cases of Covid 19 in Bayonne New Jersey where the appellant has his ordinary place of resident The conditions which were imposed by the High Court were the consequence of a well meaning exercise. But that does not render them proper or correct. 18 Before concluding the Court record its appreciation of the objective assistance rendered by Ms Vibha Datta Makhija Senior Counsel as amicus 19 Having thus heard Counsel for the appellant and the amicus curiae we are of the view that the conditions which have been imposed by the High Court in clausesandof paragraph 18 of the judgment and order dated 7 April 2020 do not sub serve the interests of justice. The conditions shall accordingly stand set aside. We however record the undertaking of the appellant that in traveling to the US with the child the appellant shall make all necessary arrangements in accordance with the prevailing regulations prescribed by the Indian and US governments for international travel between India and the US. 20 We accordingly allow the appeal in terms of the following directions Conditionsandin paragraph 18 of the judgment and order of the High Court dated 7 April 2020 shall stand set aside and conditionabove is subject to the undertaking of the appellant WWW.LIVELAW.IN CA 3284 2020 that the appellant shall comply with the regulations in force for facilitating travel between India and the US on the date of travel In order to ensure the interest and welfare of the child the following arrangement shall remain in place until modified by a court of competent jurisdiction in regard to the custody of the child In the event that the second respondent desires to relocate to the US the appellant shall provide for her expenses for travel and for her lodging and boarding at a place conveniently situated to the residence of the appellant and the child in New Jersey or at such other place where it becomes necessary subsequently In the event that the second respondent is not desirous of relocating to the US the following arrangement shall remain in The appellant shall allow the child to communicate with the second respondent on a suitable video conferencing platform on Fridays Saturdays and Sundays of every week for at least thirty minutes and beyond it subject to the mutual convenience of the mother and the child ii) Should the second respondent be desirous of traveling to the US to meet the child the appellant shall once every year meet the expenses of the second respondent for travel to and residence in the US close to the place of residence of the child for a period not exceeding ten days on each occasion WWW.LIVELAW.IN CA 3284 2020 iii) The appellant agrees and undertakes to bring the child to India once a year for a period of at least ten days when the child will have access to the second respondent and the family at her ordinary place of residence in India and iv) Condition(d) which has been set out in paragraph 18 of the judgment and order of the High Court is maintained and the arrangement which has been made above shall abide by such final directions as may be issued by the appropriate court in matters of custody access and visitation The second respondent shall in compliance with the present order extend all necessary cooperation to implement the terms of the above order inter alia by handing over the passport and other relevant documents as required to facilitate the travel and onward journey of the child with the appellant to The appeal is allowed in the above terms Pending applications if any stand disposed of. SECTION IV A S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to AppealNo.7146 2020 Arising out of impugned final judgment and order dated 07 04 2020 in WPHC No. 93 2019 passed by the High Court of Karnataka at NILANJAN BHATTACHARYA Petitioner(s VERSUS THE STATE OF KARNATAKA & ORS. Respondent(s With appln.(s) for interim relief exemption from filing c c of the impugned judgment exemption from filing affidavit appropriate orders directions permission to file additional documents facts Date : 23 09 2020 These matters were called on for hearing today CORAM : HON BLE DR. JUSTICE D.Y. CHANDRACHUD HON BLE MS. JUSTICE INDU MALHOTRA HON BLE MR. JUSTICE K.M. JOSEPH Ms Vibha Datta Makhija Sr. Adv.(SAROJ KUMARI GAUR AR cum PS BRANCH OFFICER Signed reportable judgment is placed on the file

The principle of natural justice is attracted in a case where it is shown that an accrued right is sought to be taken away: Calcutta High Court

It is important that when the police file a final report under Section 173 (2) of the Code of Criminal Procedure, 1973 before the learned Magistrate, the accused gets no indefeasible right to be discharged. The Hon’ble High Court of Calcutta before the Hon’ble Justice Kausik Chanda held such an opinion regarding the case of [C.R.R. NO. 1027 OF 2020] with [C.R.A.N. NO. 1 OF 2021] With [C.R.A.N. NO. 2 OF 2021]. The facts of the case were associated with the petitioner/de-facto complainant/wife by whom a complaint was lodged in Madhyamgram Police Station. The case was lodged against the opposite party no. 2/accused/husband under Sections 498A/406/506 of the Indian Penal Code, 1860. For further investigation of the accused, the petitioner filed a petition under Section 173 (8) of the Code of Criminal Procedure, 1973. It was alleged that a sum of Rs.27,55,675/- was siphoned by the opposite party no. 2, from a joint account without the knowledge and consent of the petitioner. The said petition was taken up to hearing before the learned Hon’ble Judicial Magistrate, 1st Court, at Barasat, 24-Parganas (North), and by an order dated December 18, 2019. The present revisional application has been filed, after the said order dated December 18, 2019, was challenged. The learned advocate, Mr. Kaushik Gupta representing the petitioner contended that the Hon’ble Magistrate was not justified while ruling out the petitioner/de-facto complainant to serve a copy of the said petition upon the accused/opposite party no. 2 as the Code of Criminal Procedure, 1973 had no provision the accused should be heard in deciding an application under Section 173 (8) of the Code of Criminal Procedure, 1973.  Mr. Gupta, representing the petitioner, in support of his submission, relied upon the following judgments: (1985) SCC (Cri) 267 (Bhagwant Singh v. Commissioner of Police), (1999) 5 SCC 740 (Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwandadha Maharaj v. State of Andhra Pradesh), (2009) 6 SCC 65 (Narendra G. Goel vs. State of Maharashtra) and (2020) 4 SCC 22 (Satishkumar Nyalchand Shah v. State of Gujarat).  The learned counsel, Mr. Prantick Ghosh, representing the opposite party no. 2, opposed the petition submitted by the petitioner and further submitted that the principle of natural justice required that the accused should be heard at the time of deciding a protest petition under Section 173 (8) of the Code of Criminal Procedure for the ends of justice. The Hon’ble Court states that when the police filed a final report under Section 173 (2) of the Code of Criminal Procedure, 1973 before the learned Magistrate, the accused gets no voidable right to be discharged. Till the final charge was framed the investigation agency or the Court can direct further investigation even after filing the final report. Hence, the Hon’ble Court viewed that the accused cannot have any right of hearing while a petition under Section 173 (8) of the Code of Criminal Procedure sought a further investigation.  The Hon’ble High Court of Calcutta held “In view of the aforesaid discussion, I am of the opinion that the learned Magistrate in the Court below was not justified in holding that the accused should be heard to comply with the principle of natural justice in deciding the petition under Section 173 (8) of the Code of Criminal Procedure filed by the de-facto complainant.” The Hon’ble High Court of Calcutta before the Hon’ble Justice Kausik Chanda further mentioned “… the order dated December 18, 2019, passed by the learned Magistrate at Barasat is set aside. The learned Magistrate shall decide the petition under Section 173 (8) of the Code of Criminal Procedure, 1973, filed by the petitioner within a  period of four weeks from date without giving any notice to the opposite party no. 2/accused. The revisional application being CRR No. 1027 of 2020 is allowed, and the connected applications, being CRAN No. 1 of 2021 and CRAN No. 2 of 2021 are accordingly, disposed of”.

IN THE HIGH COURT AT CALCUTTA CRIMINAL REVISIONAL JURISDICTION The Hon’ble Justice Kausik Chanda C.R.R. NO. 1027 OF 2020 C.R.A.N. NO. 1 OF 2021 C.R.A.N. NO. 2 OF 2021 SMT.SIULI CHOUDHURY VERSUS THE STATE OF WEST BENGAL AND ANOTHER For the petitioner Mr. Kaushik Gupta Adv. Mr. Siddhartha Sarkar Adv. Mr. Anirban Tarafder Adv. Mr. Arnab Nandi Adv. For the opposite party no. 2 : Mr. Prantick Ghosh Adv. For the State Ms. Sukannya Bhattacharyya Adv. Mr. Md. Kutubuddin Adv. Hearing concluded on 12.07.2021 Judgment on 20.09.2021 Kausik Chanda J.: The petitioner de facto complainant wife lodged a complaint before the Madhyamgram Police Station following which Madhyamgram Police Station Case No. 7715 under Sections 498A 406 506 of the Indian Penal Code 1860 was registered against the opposite party no. 2 accused husband. Upon completion of the investigation a charge sheet was filed by the investigating agency under Sections 498A 406 506 of the Indian Penal Code 1860 against the opposite party no. 2. The petitioner however was not satisfied with the investigation and she filed a petition under Section 173of the Code of Criminal Procedure 1973 for further investigation of the case. In the said petition the petitioner alleged that the investigating agency had failed to record the statement of the de facto complainant or the statements of her brothers and mother. It has further been alleged that the opposite party no. 2 siphoned off a sum of Rs.27 55 675 from a joint account without knowledge and consent of the petitioner and in spite of bringing the said fact to the notice of the investigating officer the charge sheet was silent about that. It was alleged that the investigation was carried out in a partisan manner to shield the opposite party no. 2 and had not been carried out in a proper and objective manner. The said petition was taken up to hearing before the learned Judicial Magistrate 1st Court at Barasat 24 Parganas and by an order dated December 18 2019 the learned Magistrate directed the petitioner to serve a copy of the said petition under Section 173 of the Code of Criminal Procedure 1973 to the opposite party no. 2. The learned Magistrate observed that hearing of the said petition should be done in presence of the opposite party no. 2 in compliance with the principle of natural justice. Challenging the said order dated December 18 2019 the present revisional application has been filed. 7. Mr. Kaushik Gupta learned advocate appearing for the petitioner submits that the learned Magistrate was not justified in directing the petitioner de facto complainant to serve a copy of the said petition upon the accused opposite party no. 2 inasmuch as there is no provision in the Code of Criminal Procedure 1973 that the accused should be heard in deciding an application under Section 173 of the Code of Criminal Procedure 1973. It has been further submitted by Mr. Gupta that a further investigation is carried out in terms of Section 156of the Code of Criminal Procedure only and since at the investigation stage the accused has no right of hearing the accused need not be heard at the time of deciding a petition under Section 173of the Code of Criminal Procedure filed at the behest of the de facto complainant. 8. Mr. Gupta in support of his submission relied upon the following judgments: SCC 267 (1999) 5 SCC 740(2009) 6 SCC 65 and 4 SCC 22of the Code of Criminal Procedure for the ends of justice. 10. The only point of law that arises for consideration is whether an accused has a right of hearing at the time of deciding a protest petition under Section 173of the Code of Criminal Procedure before the learned 11. The said issue appears to have been decided by the judgment delivered in Sri Bhagwan Samardha case. It has been held in the said judgment by the Supreme Case as Magistrate. follows: “10. Power of the police to conduct further investigation after laying final report is recognised under Section 173(8) of the Code of Criminal Procedure. Even after the court took cognizance of any offence on the strength of the police report first submitted it is open to the police to conduct further investigation. This has been so stated by this Court in Ram Lal Narang v. State to suggest that the court is obliged to hear the accused before any such direction is made. Casting of any such obligation on the court would only result in encumbering the court with the burden of searching for all the potential accused to be afforded with the opportunity of being heard. As the law does not require it we would not burden the Magistrate with such an obligation.” 13. The said view of the Supreme Court was followed in the subsequent judgments delivered by the Supreme Court in Narendra G. Goel and Satishkumar Nyalchand Shah CRI. L.J. 2738of the Code of Criminal Procedure 1973 before the learned Magistrate the accused gets no indefeasible right to be discharged. In terms of Section 173 of the Code of Criminal Procedure 1973 it is open for the investigating agency or for the Court to direct further investigation even after filing the final report till the charge is framed 17 SCC 1 SCC 260of the Code of Criminal Procedure seeking further investigation is taken up for consideration by the learned Magistrate. In view of the aforesaid discussion I am of the opinion that the learned Magistrate in the Court below was not justified in holding that the accused should be heard to comply with the principle of natural justice in deciding the petition under Section 173 of the Code of Criminal Procedure filed by the de facto complainant. In my view the judgment reported at SCC 267 Bhagwant Singh v. Commissioner of Police) is not relevant to the present case since the said case dealt with the right of the de facto complainant and the victim or his relatives to be heard at the time of considering the final report filed by the investigating agency. In view of the discussion above the order dated December 18 2019 passed by the learned Magistrate at Barasat is set aside. 19. The learned Magistrate shall decide the petition under Section 173 8) of the Code of Criminal Procedure 1973 filed by the petitioner within a period of four weeks from date without giving any notice to the opposite party no. 2 accused. 20. The revisional application being CRR No. 1027 of 2020 is allowed and the connected applications being CRAN No. 21 and CRAN No. 21 are accordingly disposed of. 21. Urgent certified website copies of this judgment if applied for be supplied to the parties subject to compliance with all requisite formalities.

Writ challenging appointment to post after unreasonable time to be quashed: Supreme Court of India

In cases when an appointment to the post of a Professor or Lecturer is made in a university and the university has stipulated a certain amount of time as per the act to challenge such appointment, the court cannot entertain a writ challenging such appointment after an unreasonable amount of time has already passed. This was held in the case of Pooran Chand v. Chancellor and Ors. [Civil Appeal Nos 268-269 of 2021] in the Supreme Court of India by Hon’ble Justice Ashok Bhushan. An advertisement inviting applications for the post of Professors, Associate Professors, Asst. Professors and Lecturers was issued by King George Medical University in the year 2005. The appellant made an application for appointment on the post of Assistant Professor whereas respondent made an application for appointment on the post of Lecturer. Both the appellant and respondent were considered by the same Selection Committee and recommendations of the Selection Committee were approved by Executive Council after which they were appointed. However, the respondent is this case was promoted for the post of Asst. Professor over the appellant on the basis of seniority. The counsel for the appellant submitted that High Court committed error in entertaining the challenge to the appointment of appellant as the respondent cannot be permitted to challenge the appointment of appellant after a period of more than four years, which was filed in the year 2009. For this It placed reliance on judgment of this Court in State of Jammu and Kashmir Vs. R.K. Zalpuri and Ors., (2015) 15 SCC 602 where writ petition was filed challenging the dismissal order after six year. The counsel appearing for the respondent submitted the appellant, who did not fulfill the eligibility for the post of Assistant Professor, his appointment on the post of Assistant Professor was void and is nullity and the decision of the High Court holding that respondent as not eligible is correct, which needs no interference by this Court. The court observed that Section 53 of the University Act provides that if any question arises whether any person has been duly elected or appointed, the matter shall be referred to the Chancellor, and the decision of the Chancellor thereon shall be final. For this it has also placed reliance on judgment of this Court in Nagendra Chandra and Ors. Vs. State of Jharkhand and Ors. (2008) 1 SCC 798 which had a similar set of facts. The Section also contains proviso to the effect that no reference in this Section shall be made more than three months after the date when question could have been raised for the first time. There is an object and purpose for  entertaining any question regarding appointment of member of any authority or body whether any person has been duly appointed within a period of three months. It is in the interest of the University that all doubts regarding appointment of teachers are raised within that time.

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS.268 2621 arising out of SLP(C)Nos.17665 176619 CHANCELLOR & ORS ...RESPONDENT(S JUDGMENT ASHOK BHUSHAN J Leave granted. These appeals have been filed challenging the Division Bench judgment of High Court of Judicature at Allahabad Lucknow Bench dated 12.04.2018 by which writ petition filed by respondent No.4 has been allowed and the order of the Chancellor dated 08.07.2009 rejecting the representation made by respondent No.4 was set aside. Brief facts of the case for deciding these 3.1 King George Medical University is a Medical University under the by U.P. Act No.02 namely the King George Medical University Act Uttar Pradesh Act 2002. An advertisement dated 15.03.2005 was issued by U.P. King George’s University of Dental Sciences Lucknowinviting applications for the post of Professors Associate Professors Asstt. Professors and Lecturers 3.2 The appellant made an application for appointment on the post of Assistant Professor whereas respondent No.4 made an application for appointment on the post of Lecturer. Both the appellant and respondent No.4 were considered by the same Selection Committee and recommendations of the Selection Committee were approved by Executive Council in its meeting dated 08.08.2005 approving the appointment of appellant as Assistant Professor and that of respondent No.4 as Lecturer. The appellant who was working as Assistant Professor in BRD Medical College Gorakhpur after obtaining permission from State of U.P. joined as Assistant Professor on 08.12.2005. 3.3 The respondent No.4 submitted his joining as Lecturer on 08.08.2005. The respondent No.4 was promoted on the post of Assistant Professor on 08.08.2007 after completing three years experience. The representations were submitted by respondent No.4 to the University claiming seniority over the appellant. A representation was addressed by respondent No.4 to the Chancellor dated 13.02.2009 regarding the appointment and claim of seniority as Assistant Professor in the University. The respondent No.4 claimed that his experience at the time of appointment as Senior Research Fellow in W.H.O. was not considered. His representation to the Chancellor principally claimed seniority over appellant based on his experience claiming that he has also completed requisite experience at the time of his appointment on the post of Assistant Professor. 3.4 The Chancellor vide his order dated 08.07.2009 rejected the representation made by respondent No.4. The Chancellor in his order referred to the report sent by the University that experience of the appellant as Senior Research fellow in W.H.O. cannot be counted as experience. Aggrieved by the order of the Chancellor dated 08.07.2009 rejecting his claim the respondent No.4 filed a writ petition being Writ Petition No.1350(SB) of 2009 praying for following “i. Issue a writ of certiorari quashing the impugned order dated 08.07.2009 passed by Opp. Party No.1 and impugned appointment order dated 08.08.2005 of OPP. Party no.4 as Asstt. Professor contained in Annexure No.1 & 2 to the ii. issue a writ of mandamus prohibition commanding the OPP. Party No. 1 to 3 to revert back the OPP. Party NO.4 from the post of Asstt Professor and post him in the post Lecturer from the date of iii. issue a writ of mandamus commanding the Opp. Party No.1 to 3 to declare the petitioner senior to the Opp. Party No.4 with all consequential service iv. issue a writ of mandamus commanding the Opp. Parties to count the period of Senior Research Fellow as teaching experience in promoting the any other writ order or direction which this Hon’ble Court deem fit in the circumstances of the case may also be passed vi. Allow the Writ Petition with 3.5 In the writ petition both the appellant as well as University has filed their counter affidavit and contested the claim of the respondent No.4. Division Bench of the High Court vide its impugned judgment dated 12.04.2018 allowed the writ petition. The operative portion of the order of the High Court is as follows: “The writ petition is accordingly allowed. The order dated 8.7.2009 passed by the Chancellor is hereby quashed and the University concerned is directed to treat opposite party no.4 having been appointed initially on the post of Lecturer qualification. Consequences shall follow accordingly. However no recovery shall be made from opposite party no.4 from the payment made to him on account of said initial appointment on the post of Assistant Professor.” 3.6 The appellant aggrieved by the judgment of the High Court has come up in these appeals We have heard Ms. Meenakshi Arora learned senior counsel for the appellant. Shri S.R. Singh learned senior counsel appearing for respondent No.4. Shri Vishnu Shankar Jain learned counsel has appeared for Learned counsel for the appellant contends that the appellant had started working in the University as Assistant Professor in BRD Medical College from 19.07.2003 to 07.12.2005. It is submitted that prior to his deputation in BRD Medical College Gorakhpur he was a member of Provincial Medical Services w.e.f 01.09.1992 and had been working for more than a decade as Dental Surgeon. It is submitted that Selection Committee after considering the service experience and working of the appellant found him eligible for the post of Assistant Professor and recommended as Assistant Professor who was appointed as such. It is submitted that the respondent No.4 did not fulfil qualifications of Assistant Professor since at the time of application he had only one year’s experience hence he rightly applied for the post of Lecturer only. It is submitted that the appointment of the appellant as Assistant Professor was never challenged by respondent No.4 and it is with regard to claim of seniority of respondent No.4 over the appellant he submitted his representation both to the University and the Chancellor Representation to the Chancellor was also submitted after more than three years from the appointment of the appellant and representations were submitted by respondent No.4 only when he was promoted as Assistant Professor in the year 2007. It is submitted that High Court committed error in entertaining the challenge to the appointment of appellant as Assistant Professor whereas appointment was never challenged before the Chancellor or within a reasonable period by the writ petition which was filed in the year 2009. The respondent No.4 cannot be permitted to challenge the appointment of appellant after a period of more than four years. It is submitted that the appellant was senior to the respondent No.4 right from the very beginning and the claim of respondent No.4 regarding seniority of the appellant was misconceived and the dispute was initiated by respondent No.4 only for purpose of claiming himself to be senior to the appellant. The appellant fulfilled the qualifications for appointment on the post of Assistant Professor and has been working on his post since the date of joining. Shri S.R. Singh learned senior counsel appearing for the respondent No.4 submitted that the experience of the appellant as member of Provincial Medical Services was wholly irrelevant for the purpose of appointment on the post of Assistant Professor. At best the appellant’s experience as Assistant Professor in BRD Medical College Gorakhpur in Department of Dentistry from 19.07.2003 to 07.12.2005 can be taken into consideration which is only two years four months and 19 days which was less than three years hence he did not fulfil the eligibility for the appointment on the post of Assistant Professor. Shri S.R. Singh submitted that the appellant who did not fulfil the eligibility for the post of Assistant Professor his appointment on the post of Assistant Professor was void and is nullity and the decision of the High Court holding that respondent No.4 not eligible is correct which needs no interference by this Court. We have considered the submissions of the learned counsel for the parties and have perused the records For the post of Assistant Professor and Lecturer advertised by advertisement dated 15.03.2005 qualifications were referred to as qualifications required as in the first Statute of Lucknow University. Section 42 of the Act 2002 provided for first Statutes of the University. The Section further provided that for so long as the First Statutes are not so made the Statutes of the Lucknow University as in force immediately before the appointed date in so far as they are not so inconsistent with the provisions of the Act 2002 shall subject to such adaptations and modifications continue in force. The relevant Statute of the Lucknow University which provides for qualification for the post of Assistant Professor is Statute 11.02 B2 which is to the following effect: “11.02 B2. Assistant Professor: MDS or equivalent degree as recognised by the Dental Council of India in the subject concerned with at least three years teaching experience as Lecturer Chief Resident Senior Resident Demonstrator Tutor or equivalent after obtaining MDS degree in the subject concerned. Provided that if suitable candidates with requisite teaching experience are not available the selection committee may recommend candidates for appointment in lower grade i.e. Lecturers.” There is no dispute to the fact that in pursuance of advertisement dated 15.03.2005 both appellant and respondent No.4 had applied respectively for the post of Assistant Professor and Lecturer and Selection Committee recommended their appointment and Executive Council in the meeting dated 08.08.2005 approved the recommendations of Selection Committee appointing appellant as Assistant Professor and respondent No.4 as Lecturer. 10. The University in its counter affidavit has relied and referred to Section 53 of the U.P. Act No 8 of 2002. Section 53 of the Act 2002 is as “53 If any question arises whether any person has been duly elected or appointed as or is entitled to be a member of any authority or other body of the University is in conformity with this Act or the Statutes or the Ordinances made thereunder the matter shall be referred to the Chancellor and the decision of the Chancellor thereon shall be final: Provided that no reference under this section shall be made a) more than three months after the date when the question could have been raised for the first time b) by any person other than an authority or officer of the University or a person aggrieved: Provided further that the Chancellor may in exceptional circumstances a) act suo motu or entertain a reference after the expiry of the period mentioned in the preceding proviso b) where the matter referred relates to a dispute about the election and the eligibility of the persons so elected is in doubt pass such orders of stay as he thinks just and expedient.” 11. Section 53 provides that if any question arises whether any person has been duly elected or appointed the matter shall be referred to the Chancellor and the decision of the Chancellor thereon shall be final. The Section also contains proviso to the effect that no reference in this Section shall be made more than three months after the date when question could have been raised for the first time. Although by the second proviso Chancellor can entertain a reference after expiry of the said period. There is an object and purpose for entertaining any question regarding appointment of member of any authority or body whether any person has been duly appointed within a period of three months. The members of the teaching faculty of the University be it Lecturer or Assistant Professor are entrusted with teaching which is to be imparted according to academic calendar. It is in the interest of the University that all doubts regarding appointment of teachers are raised within a period of three months to have an early decision by Chancellor to give quietus to the disputes in the University 12. From the facts which have been brought on record it is clear that the reference to the Chancellor was made by respondent No.4 only on 13.02.2009 i.e. subsequent to he was promoted as Assistant Professor. Chancellor in his order has noticed the substance of claim of respondent No.4 Respondent No.4 has claimed to include the experience of Senior Research Fellow in W.H.O. The respondent No.4 has complained non consideration of experience as Senior Research Fellow with the W.H.O. in his experience for appointment on the post of Assistant Professor. Chancellor noticed the stand of the University with regard to claim of respondent No.4 to include his experience as Senior Research Fellow in W.H.O. and made following observations: “The University has informed that the experience of Dr. Rao for his service with the WHO as Senior Research fellow in the teaching experience was not considered for the appointment on the post of Assistant Professor because there is no such scheme in the bylaws. The applications sent by Dr. Rao time to time had been disposed off. The university has also informed that case of Dr. Amit Nagar and Dr. G.K Singh has no similarity with the case of the complainant and the case of Dr. Nagar is different. At the end the statement of the university is that Dr. Rao has presented applications without knowing the truth of the facts mentioned therein and that through unauthorised manner and since the above case of Dr. Rao is meritless having no force and based on the false facts and causing disillusion hence it has been requested to reject the complaint.” 13. The Chancellor has further observed that the respondent No.4 has mainly requested to establish his seniority over the appellant. In the last paragraph of the order Chancellor has made following observations: “The respondent has mainly requested to establish his seniority against the respondent Dr. Puran Chand and has mainly stated that his experience as Senior Research Fellow with Government of India and WHO has not been counted as experience by the Medical University. In the report sent by the vice chancellor of the Chhatrapati Shahu Ji Maharaj Medical University Lucknow in this regard it has been clarified that in section 10.01 My seniority in the department as Assistant Professor may be b) The seniority of Dr. Pooran Chand may be reverted back as c) If some conspiracy to hide the facts in the appointment of Dr. Pooran Chand is proved then an appropriate action should be taken against 18. The prayer of the respondent No.4 that appellant should be reverted on the post of Lecturer could not have been entertained. There is no question of reversion of the appellant on the post of Lecturer when he was appointed as Assistant Professor on 08.08.2005. 19. Now we may notice the judgments which have been relied by learned counsel appearing for respondent No.4 in support of his submissions. Learned counsel for the respondent No.4 has placed reliance on judgment of this Court in Nagendra Chandra and Ors Vs. State of Jharkhand and Ors. 1 SCC 798 The above case related to the appointment on the vacancy for the post of Constables. The vacancies were neither advertised through the Employment Exchange nor in a newspaper which was a requirement of Rule 663(d) of Bihar Police Manual but was displayed only on the notice board. The appellants of the said case who were appointed without advertisement of the vacancy were dismissed from service. The writ petition was filed which too was dismissed. Challenging the order of the High Court the appeal was filed before this Court. Paragraph 3 of the judgment notices the submissions which is to the following effect: “3. Learned counsel appearing on behalf of the appellants submitted that though the vacancies were neither advertised through the employment exchange nor in any newspaper as required under Rule 663(d of the Bihar Police Manual but as the same were displayed on the noticeboard it cannot be said that there was infraction of the said Rule as such the services of the appellants should not have been terminated more so when they have continued in service for a period of fourteen years. On the other hand learned counsel appearing on behalf of the State of Jharkhand submitted that as the appointments being in infraction of Rule 663(d) were illegal the competent authority was quite justified in terminating services of the appellants.” 20. In paragraph 9 of the said judgment this Court laid down following: “9. In view of the foregoing discussion we have no option but to hold that if an appointment is made in infraction of the recruitment rules the same would be violative of Articles 14 and 16 of the Constitution and being nullity would be liable to be cancelled. In the present case as the vacancies were not advertised in the newspapers the appointments made were not only in infraction of Rule 663(d of the Bihar Police Manual but also violative of Articles 14 and 16 of the Constitution which rendered the appointments of the appellants as illegal as such the competent authority was quite justified in terminating their services and the High Court by the impugned order was quite justified in upholding the 21. There cannot be any dispute to the preposition that when the appointment is made in infraction of the recruitment rules the same would be liable to be cancelled. The present is not a case where appointment of appellant was cancelled by any competent authority. The appellant was appointed recommended by Selection Committee with due approval of the Executive Council and the appointment was made after due advertisement. The above judgment thus is distinguishable and does not help the respondent No.4. 22. Another judgment relied by learned counsel for the respondent No.4 is Government of Andhra Pradesh and Ors. Vs. K. Brahmanandam and Ors. 5 SCC 241 which was a case where management neither obtained the prior permission of school authorities nor advertised the vacancy in two newspapers and made appointment. The appointees i.e. Secondary Grade Teachers filed representations for their salary which was rejected by the District Education Officer A writ petition was filed which petition was allowed directing for their continuance. In the appeal filed by the State the judgment of the High Court was set aside. This Court held that the appointments made in violation of the mandatory provisions of a Statute would be illegal and thus void. There can be no dispute to the above preposition but the above was a case where the appointment of the teachers were neither approved nor was made in accordance with the statutory rules hence this Court took the view that they are not entitled for any salary from the State and it was school authorities to pay their salary 23. Another judgment relied by the learned counsel for the respondent No.4 is Pramod Kumar Vs. U.P Secondary Education Services Commission and Ors. 2008) 7 SCC 153 which was also a case of a teacher who had obtained B.Ed. degree from an institution which was not recognised. He was appointed by the Management Committee and filed a writ petition for his salary his services were terminated. He filed a writ petition which was dismissed against which appeal was also dismissed. This Court in paragraph 21 made following observations: “21. It is not in dispute that the said institution was not recognised by any university. A degree is recognised only if it is granted by a university constituted in terms of the University Grants Commission Act 1956 or under any State or parliamentary Act. No university can be established by a private management without any statutory backing.” 24. This Court dismissed the appeal filed by the teachers. The above case was also on different premise and does not help the respondent No.4 25. Appellant has also placed reliance on judgment of this Court in State of Jammu and Kashmir Vs. R.K Zalpuri and Ors. 15 SCC 602 where writ petion was filed challenging the dismissal order after six year. The writ petitoin was allowed by the learned Single Judge against which LPA by the State was also dismissed. This Court allowed the appeal and held that delay in approaching High Court under Article 226 was fatal in the above case. In paragraphs 26 and 27 following was laid down: “26. In the case at hand the employee was dismissed from service in the year 1999 but he chose not to avail any departmental remedy. He woke up from his slumber to knock at the doors of the High Court after a lapse of five years. The staleness of the claim remained stale and it could not have been allowed to rise like a phoenix by the writ court 27. The grievance agitated by the respondent did not deserve to be addressed on merits for doctrine of delay and laches had already visited his claim like the chill of death which does not spare anyone even the one who fosters the idea and nurtures the attitude that he can sleep to avoid death and eventually proclaim “deo gratias”—“thanks to God”.” 26. As observed above the Act which Governs the appointment of Assistant Professors and Lecturers in the University itself provides a mechanism for questioning an appointment i.e. by representation to the Chancellor that too within a period of three months. Any challenge to appointment after more than three years cannot be entertained as we have already held that respondent No.4 in his representation before the Chancellor never challenged the appointment of appellant as Assistant Professor and had filed representation only claiming seniority over appellant after he got promoted as Assistant Professor himself in the year 2007 High Court ought not to have entertained the challenge to the appointment of appellant in the writ petition and ought to have confined the consideration of claim of respondent No.4 for seniority over the appellant When the appointment of appellant was not challenged in reasonable time as per the provisions of the Act 2002 it is not in the ends of justice to permit the respondent No.4 to challenge such appointment in the High Court in the writ petition for the first time after more than four years of the appointment. 27. We thus are of the considered opinion that High Court committed an error in quashing the appointment of respondent No.4 as Assistant Professor quashing the order of the Chancellor as well as direction to treat the appellant as being appointed as a Lecturer There was no error in the order of the Chancellor rejecting the representation made by the respondent No.4 which representation was referable to Section 53 of Act No. 02. High Court committed error in quashing the order as well as issuing directions as noted above. 28. In view of the foregoing discussions we allow the appeals and set aside the judgment of the High Court dated 12.04.2018 and dismiss the writ petition filed by respondent No.4. ASHOK BHUSHAN ( R. SUBHASH REDDY ( M.R. SHAH New Delhi January 29 2021

When an order granting bail is passed by a lower court, the appellate court must be slow to interfere with such an order: Delhi High Court

In order to establish whether sexual intercourse was committed in the backdrop of a false promise of marriage, it has been held by the Supreme Court that the consent for sexual intercourse which is derived from the prosecutrix must be coerced or misguided, or obtained through deceit as upheld by the High Court of Delhi through the learned bench led by Justice Hon’ble Mr. Justice Subramonium Prasad in the case of Bhagyashree @ Monica v. State of N.C.T. Of Delhi & Anr. (CRL.M.C. 2392/2021). The facts leading to the instant case that the Petitioner met Respondent No.2, in the year 2015 at Invertis University wherein she was pursuing her B.Com. The Petitioner fell in love with Respondent No.2 and they both were in a relationship. On 05.07.2018, when the Petitioner reached Delhi, the Respondent No.2 said to her that he was hungry and they should go to her room to have food, as well as to rest and talk. The Respondent No.2 reached the Petitioner’s flat and, allegedly, he started touching her. The Petitioner questioned Respondent No.2’s actions, and in response to the same, Respondent No.2 stated that he loved the Petitioner, intended to marry her and that after the marriage they would be in such physical relations.. After the sexual intercourse, when the Petitioner started crying and told Respondent No.2 that she would file a police complaint against him, Respondent No.2 threatened to kill her and her mother if she filed a complaint or if she informed anyone. During the course of the relationship between the Petitioner and Respondent No.2, it has been stated that Respondent No.2 visited her flat many times, and despite her refusal, he would have sexual intercourse with her. It is also stated that whenever the Petitioner would bring up the prospect of marriage, Respondent No.2 would counter the same with some excuse.  On 13.02.2020, Respondent No.2 visited the flat of the Petitioner and had sexual intercourse with her against her wishes, and Respondent No.2 left the flat informing the Petitioner that he would be going home in order to speak to his family about their marriage. Thereafter, whenever the Petitioner sought to speak to Respondent No.2 over the phone regarding their marriage, he would deflect the topic by making excuses. It has been alleged by the Petitioner that Respondent No.2 has completely ruined the petitioner’s life because of his false promise to marry on the basis of which he had sexual intercourse with her multiple times. On the said complaint, the instant FIR was registered against Respondent No.2 herein. The Respondent No.2 was arrested by the concerned I.O. Consequently, Respondent No.2 filed an application for regular bail before the learned Additional Sessions Judge and the same was rejected. Thereafter, Respondent No.2  approached this Hon’ble Court for grant of regular bail. On 09.07.2021, Respondent No.2 filed another application for grant of regular bail and was granted interim bail by the learned Additional Sessions Judge, with the application for regular bail being listed. After the perusal of the facts and arguments by the respective sides, the Hon’ble Court held, “In the instant case, whether the consent which was obtained from the Petitioner herein was under the misconception of a false promise of marriage can only be discerned during the trial itself. The learned Additional Sessions Judge has considered all the material on record and the impugned Order dated 18.08.2021 granting regular bail to Respondent No.2 is based on cogent reasoning. This Court does not find any infirmity in the Order passed by the learned Additional Sessions Judge and is, therefore, of the opinion that there is no reason to interfere in the same. The petition is dismissed with the above observations along with pending application(s), if any.”

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

The appellant advised to approach the concerned stock exchange for copy of the IGRP order.: SEBI.

The appellate authority under the RTI (Right to Information) Act of the Securities and Exchange Board of India comprising of Mr. Anand Baiwar adjudicated in the matter of Geeta Khattar v CPIO, SEBI, Mumbai (Appeal No. 4305 of 2021) dealt with an issue in connection with the Right to Information Act, 2005. The appellant, Ms Geeta Khattar had filed an application via RTI MIS Portal on the 14th of April, 2021 under the Right to Information Act, 2005. The respondent responded to the application by a letter on the 7th of May, 2021, filed by the appellate. After receiving a letter from the respondent on 7th of May, 2021, on her application, the appellate decided to file an appeal on the 14th of June, 2021. In her application, the appellate was seeking the following information: The respondent, in response to the query number 1, informed that in IGRP proceedings, complainant is one of the party to the proceedings, appellant is one of the party to the proceedings. Further, as per process, the exchange forwards the IGRP order to the complainant. In the instant cases, IGRP order 26th of September, 2014 has already been forwarded by exchange and SEBI also uploaded the same on SCORES portal. Hence, the appellant was advised to approach the concerned stock exchange for copy of the IGRP order. In response to query number 2, the respondent observed that the information sought is not available with SEBI. In response to query numbers 3 and 4, the respondent informed that copy of IGRP order dated 26th of September, 2014 was uploaded on SCORES, pursuant to complaint lodged by the appellant on the SCORES Portal. The respondent also stated that the appellant may directly approach the exchange for the requisite data pertaining to the exchange. The appellant filed the appeal on the grounds of that the information provided was incomplete, misleading or false information. The appellant, in her appeal, reiterated the query raised in her application. For the query no. 1, the appellate authority, Mr Anand Baiwar, made reference to the matter of Hon’ble CIC, in the matter of Shri S.P. Goyal vs. Shri Pragati Kumar & Ors. (order dated January 24, 2008), wherein the Hon’ble CIC held that “Further, the obligation of a respondent extends only to providing information which it “holds” or controls in terms of Section 2(f) of the RTI Act. If it can be established through evidence that a party/ applicant himself possesses an information which he has sought from a public authority, such information can be denied to him. This appellant has already been provided the judgement dated 30.3.2007 of the Income Tax Appellate Authority. The information, therefore, is already in appellant’s possession and cannot therefore be said to be “held”-much less “exclusively held”-by the public authority in terms of Section 2(j) of the RTI Act.” In view of these observations, Mr Baiwar was of the view that the respondent is not obliged to provide the information sought by the appellant. Without prejudice to the same, he noted that the respondent has guided the appellant to approach the concerned stock exchange. Accordingly, the query no. 1 of the application is adequately addressed and therefore, no deficiency is found in the response. For the query no. 2, the appellate authority, Mr Anand Baiwar, made reference to the matter of Hon’ble CIC, in the matter of Sh. Pattipati Rama Murthy vs. CPIO, SEBI (Decision dated July 8, 2013), held: “… if it (SEBI) does not have any such information in its possession, the CPIO cannot obviously invent one for the benefit of the Appellant. There is simply no information to be given.” In view of these observations, he found that the information sought by the appellant was not available with SEBI and therefore, the respondent cannot be obliged to provide such non–available information. For the query no. 3, the appellate authority, Mr Anand Baiwar noted that the respondent has clearly informed regarding the availability of the IGRP order on the SCORES Portal since the complaints were lodged on the said portal. Further, the appellant was also advised to directly approach the exchange for the requisite data pertaining to the exchange. On consideration, he found that the respondent has adequately addressed the query by providing the information available with him. Accordingly, he does not find any deficiency in the response.

Appeal No. 43021 BEFORE THE APPELLATE AUTHORITY Under the Right to Information Act 2005) SECURITIES AND EXCHANGE BOARD OF INDIA Appeal No. 43021 Geeta Khattar CPIO SEBI Mumbai The appellant had filed an application dated April 14 2021 under the Right to Information Act 2005 wherein the Hon’ble CIC held that “Further the obligation of a respondent extends only to providing information which it “holds” or controls in terms of Section 2(f) of the RTI Act. If it can be established through evidence that a party applicant himself possesses an information which he has sought from a public authority such information can be denied to him. This appellant has already been provided the judgement dated 30.3.2007 of the Income Tax Appellate Authority. The information therefore is already in appellant’s possession and cannot therefore be said to be “held” much less “exclusively held” by the public authority in terms of Section 2(j) of the RTI Act.” In view of these observations I am of the view that the respondent is not obliged to provide the information sought by the appellant. Without prejudice to the same I note that the respondent has guided the appellant to approach the concerned stock exchange. Accordingly the query number 1 of the application is adequately addressed. Therefore I do not find any deficiency in the response. 6. Query number 2 On consideration I do not find any reason to disbelieve the observation of the respondent that the information sought is not available with SEBI. In this context I note that the Hon’ble CIC in the matter of Sh. Pattipati Rama Murthy vs. CPIO SEBI held: “… if itdoes not have any such information in its possession the CPIO cannot obviously invent one for the benefit of the Appellant. There is simply no information to be given.” In view of these observations I find that the information sought by the appellant was not available with SEBI and therefore the respondent cannot be obliged to provide such nonavailable information. Appeal No. 43021 7. Query numbers 3 and 4 I have perused query numbers 3 and 4 and the response provided thereto. I note that the respondent has clearly informed regarding the availability of the IGRP order on the SCORES Portal since the complaints were lodged on the said portal. It is understood that all the complaints which are lodged in the SCORES system the related correspondence and Action History can be accessed online on SCORES website under the tab “View Complaint Status” by providing the complaint registration number and password which is allotted at the time of registering the complaint. Further the appellant was also advised to directly approach the exchange for the requisite data pertaining to the exchange. On consideration I find that the respondent has adequately addressed the query by providing the information available with him. Accordingly I do not find any deficiency in the response. In view of the above observations I find that there is no need to interfere with the decision of the respondent. The Appeal is accordingly dismissed. Place: Mumbai Date: July 12 2021 ANAND BAIWAR APPELLATE AUTHORITY UNDER THE RTI ACT SECURITIES AND EXCHANGE BOARD OF INDIA

Judgment of acquittal of co-accused is inadmissible under sections 40 to 44 of the Evidence Act: High Court of Karnataka

Judgment of acquittal of co-accused would not be admissible within meaning of Sections 40 to 44 of the Evidence Act. This was held in UMMER FAROOQ V. STATE OF KARNATAKA[CRIMINAL PETITION NO.6857/2020] in the High Court of Karnataka by single judge bench consisting of JUSTICE H.P. SANDESH. Facts are that the petitioner was arraigned as co-accused in a complaint, the police registered a case for the offenses punishable under Sections 143, 147, 341, 323, 504, 354, 307 r/w S.149 of IPC and filed charge sheet against 10 accused. The case against petitioner was split up and other accused were tried separately and acquitted. Petition is thus filed before this Court for quashing of proceedings. The counsel for petitioner contended that learned Magistrate had not framed  specific or separate charges against the petitioner. He relied upon Judgment of the Apex Court in the case of Vishwas Bhandari v. State of Punjab and Anr and other cases to examine the scope of S.482 and futility of trying co accused. The government pleader contended that the benefit of Section 482 of Cr.P.C. cannot be invoked as accused had absconded and relied upon the Judgment in the case of Umesh v. State of Kerala in favor of refusing to quash the proceedings on the ground that co-accused was acquitted. The court referred to the Apex court judgment in the case of Rajan Rai v. State of Bihar, wherein the court had held that the judgment of acquittal of co-accused is not admissible within the meaning of Section 40 to 44 of the Evidence Act. The Apex court had also highlighted the irrelevancy of the judgement of co accused tried separately. The court relied on the case of Umesh v. State of Kerala, where the Apex Court had discussed the scope of Sections 482, 227 and 239 of Cr.P.C. held  that Trial Court under Section 239 is the proper forum to file an application and the Apex Court judgement in the case titled Yanob Sheikh alias Gagu v. State of West Bengal wherein the following observations were made, “The cumulative effect of the above discussion is that the acquittal of a co-accused per se is not sufficient to result in acquittal of the other accused. The Court has to screen the entire evidence and does not extend the threat of falsity to universal acquittal. The court must examine the entire prosecution evidence in its correct perspective before it can conclude the effect of acquittal of one accused on the other in the facts and circumstances of a given case.”

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24th DAY OF MARCH 2021 THE HON BLE MR. JUSTICE H.P. SANDESH CRIMINAL PETITION NO.6857 2020 BY SRI LETHIF B. ADVOCATE) … PETITIONER UMMER FAROOQ S O ABDUL KAREEM. K AGED ABOUT 28 YEARS R AT 1 59 3 UKKADA DARBE ALIKE POST ALIKE BANTWALA TALUK D.K. DISTRICT 574 235. 1 . THE STATE OF KARNATAKA BY VITTLA POLICE STATION REPRESENTED BY THE SPP HIGH COURT BUILDINGS BENGALURU 560 001 2 . SRI SELVARAJ S O CHINNAPPA AGED ABOUT 50 YEARS R AT UKKADA DARBE ALIKE POST ALIKE BANTWALA TALUK D.K. DISTRICT 574 235 BY SRI MAHESH SHETTY HCGP FOR R1 R2 IS SERVED) … RESPONDENTS 2 IN C.C.NO.1153 2018 THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS CR.NO.207 2015 OF VITTAL POLICE STATION D.K. DISTRICT FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 143 147 341 354 504 AND 506 R W SECTION 149 OF IPC ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC BANTWALA DAKSHINA KANNADA WHICH IS PRODUCED AT ANNEXURE A. THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 08.03.2021 THIS DAY THE COURT PRONOUNCED THE FOLLOWING: O R D E R This petition is filed under Section 482 of Cr.P.C praying this Court to quash the entire proceedings against the petitioner in C.C.No.1153 2018 for the offences punishable under Sections 143 147 341 354 504 and 506 read with Section 149 of IPC pending on the file of Additional Civil Judge and JMFC. Bantwal Dakshina Kannada. The factual matrix of the case is that this petitioner who has been arraigned as accused No.2 along with other accused in the complaint dated 18.10.2015 P.W.1 made the allegation that the neighbour by name Mohammed had constructed a petty shop in a Government Land about two months back. It is further alleged that after the construction the persons who were sitting in the said petty shop were disturbing the residents i.e. women and children in this regard the complainant had orally informed the panchayath and revenue office and the revenue officer were removed the said petty shop about one month back. It is further alleged that in this regard the said Mohammed his relatives and friends were quarreled with the complainant and abused him in a filthy language. In the meantime the Panchayath President and other leaders of the locality had agreed to resolve the dispute. That on 18.10.2015 at about 6:00 p.m they called a meeting at Vishwakarma Community Hall in the presence of elders and leaders of the locality and in the said meeting the followers of the said Mohammed had abused the complainant in a filthy language and assaulted the complainant on all over the body. It is alleged that the complainant had tried to escape from the place. At that time other accused were caught hold of him and tried to press the neck of the complainant with an intention to commit the murder and pulled him on the floor. At that time the persons who were gathered at the place were pacified them and the mother in law one Eshwari also tried to pacify the quarrel. At that time one Razith and Farooq pulled her on the 4 floor and caused injuries she took treatment in Aadarsha Hospital. Based on the complaint the police have registered a case for the offences punishable under Sections 143 147 341 323 504 354 307 read with Section 149 of IPC in Crime No.207 2015. After the investigation charge sheet is filed against 10 accused. The petitioner is the permanent resident of the above address and not aware of about filing of charge sheet against him and only when the Police came near the house with a warrant he came to know about the pendency of the case. On Verification he found that a case against him was split up from original C.C.No.1360 2016 by order dated 13.08.2018. The case against the other accused was tried in C.C.No.1360 2016. During the trial the prosecution has examined two witnesses as PWs.1 and 2 and they were ultimately acquitted. Hence the present petition is filed before this Court. The grounds urged in the petition before this Court is that the learned Magistrate has framed common charge against all the accused and in the entire charge sheet there is no specific or separate charge made against the petitioner. In view of similar charge has been framed and other accused have been acquitted after the trial there is no specific overt acts against the present petitioner and there is no recovery from the present petitioner. Hence he is entitled for the relief of quashing. The learned counsel for the petitioner in support of his contention he relied upon the recent Judgment of the Apex Court in the case of Vishwas Bhandari v. State of Punjab and another reported in AIR 2021 SCC OnLine SC 56 and brought to the notice of this Court that paragraph No.9 of the judgment wherein the Apex Court exercised the discretion invoking Section 482 of Cr.P.C and coming to the conclusion that neither the prosecutrix nor the complainant have levelled an iota of allegation against the appellant in respect of abduction of the prosecutrix. It is also observed that the prosecutrix and the accused with the consent of both the families they married and living together happily. The learned counsel also relied upon the Division Bench judgment of this Court in the case of The State of Karnataka v. K.C.Narasegowda reported in ILR 2005 KAR 1822 and brought to the notice of this Court that paragraph Nos.4 and 6 of the judgment wherein this Court had discussed considering the regular facts and circumstances of the case exercised the powers under Section 482 of Cr.P.C. The learned counsel relied upon the judgment of the Apex Court in the case of Central Bureau of Investigation v. Akhilesh Singh reported in AIR 2005 SC 268 wherein the Apex Court discussed with regard to exercising the powers under Section 482 of Cr.P.C the main accused who had alleged to have hatched conspiracy and who had motive to kill deceased was already discharged and the matter had attained finality and held that no purpose would be served in further proceeding with case against co accused. The learned counsel also relied upon the unreported judgment of this Court dated 14.10.2020 passed Crl.P.No.1422 2019 and brought to the notice of this Court paragraph No.7 of the Judgment wherein this Court observed that once there is an acquittal on merits after consideration of the evidence on record and the said evidence being equally applicable to the petitioner accused No.6. Hence Section 482 of Cr.P.C. can be invoked. The learned counsel also relied upon the unreported judgment of this Court dated 05.07.2017 passed Crl.P.No.4796 2017 and brought to the notice of this Court paragraph No.17 of the Judgment extending the benefit under Section 482 of Cr.P.C. The learned counsel also relied upon the unreported judgment of this Court dated 02.02.2018 passed W.P.No.709 2018 and brought to the notice of this Court paragraph No.7 of the Judgment wherein invoked Section 482 of Cr.P.C. on the ground that accused who were tried and acquitted by the Court are one and the same and they are not separable in nature. 10. The learned counsel also relied upon the unreported judgment of this Court dated 03.01.2011 passed Crl.P.No.3849 2010 and brought to the notice of this Court paragraph No.4 of the Judgment wherein this Court observed that the Sessions Judge acquitted all the accused persons of the offences mainly on the ground of material witnesses including the complainant having turned hostile and none of them have supported the prosecution case except the two doctors. 11. The learned counsel also relied upon the unreported judgment of this Court dated 29.06.2010 passed Crl.P.No.7261 2010 and brought to the notice of this Court paragraph No.6 of the Judgment and also observed the two versions one in favour of prosecution and one in favour of the accused and comes to a conclusion that if the trial is conducted it is only a formal trial. 12. The learned counsel also relied upon the unreported judgment of this Court dated 20.01.2017 passed Mukkateera Sampath @ M.G. Kushalappa v. The State of Karnataka and another) and brought to the notice of this Court paragraph No.5 of the Judgment discussing the judgments of different High Courts and Hon ble Supreme Court and found that it would be a futile exercise if he tried for the charges levelled against him. 9 13. The learned counsel also relied upon the unreported judgment of this Court dated 23.01.2015 passed Saibanna v. The State of Karnataka and another) and brought to the notice of this Court paragraph Nos.8 11 and 15 of the Judgment wherein Section 482 of Cr.P.C. has been involved. 14. The learned counsel also relied upon the unreported judgment of this Court dated 10.11.2020 passed Crl.P.No.770 2017 and brought to the notice of this Court paragraph Nos.22 23 24 and 25 of the Judgment wherein the benefit of Section 482 of Cr.P.C. is extended to the co accused. 15. Per contra learned High Court Government Pleader appearing for respondent No.1 State would vehemently contend that the benefit of Section 482 of Cr.P.C. cannot be invoked for the reason that this accused was absconded as a result in 2016 itself a split up case is registered against this accused and after four years of passing an order of split up case against this accused the petitioner has approached this Court. 16. The learned High Court Government Pleader would contend that the Trial Court in paragraph No.7 of the Judgment held that in spite of issuance of NBW this petitioner has not been secured before the Court. The petitioner has waited till the disposal of the case and has approached this Court after the acquittal order knowing fully well the proceedings was taken place against the other accused persons. Hence the benefit of Section 482 of Cr.P.C. cannot be invoked. 17. The learned High Court Government Pleader in support of her contention she relied upon the Judgment in the case of Umesh v. State of Kerala reported in 3 SCC 112 wherein the Apex Court discussing the scope of Sections 482 227 and 239 of Cr.P.C. held that proper forum an application has to be filed before the Trial Court under Section 239. It is for the Magistrate to consider the contentions regarding discharge therein. The High Court has refused to quash the criminal proceedings and upheld the Full Bench judgment of Kerala High Court in the case of Moosa v. Sub Inspector of Police reported in 2 CCR 445. Further observed that it is for the Magistrate concerned to consider the contentions in an application filed under Section 239. 18. The learned High Court Government Pleader referring to these judgments would contend that the judgments which have been canvassed by the learned counsel for the petitioner all the judgments are passed by this Court and some of the judgments are unreported judgments and the subsequent judgment of the Apex Court has to be considered wherein the Apex Court has upheld the Full Bench judgment of Kerala High in Moosa’s case refusing to quash the proceedings on the ground that co accused was acquitted. Hence the recent judgment of the Apex Court is applicable. 19. Having heard the learned counsel for the petitioner and the learned High Court Government Pleader for respondent No.1 State this Court has to examine whether this Court can exercise the powers under Section 482 of Cr.P.C. in view of the principles laid down in the judgments referred supra. 20. Having perused the allegations made complaint against this petitioner and other accused the allegation is specific that in view of the prior enmity between the complainant and one Mohammed in connection with removal of petty shop which was put up in the Government land was removed they were having ill will against the complainant and specific allegation is made against each of the accused including this petitioner that they assaulted not only the complainant and also CW.2 mother in law who came to rescue the complainant with an intention to take away the life an assault was made and tried to take away the life by pressing her neck. On perusal of the records no doubt two witnesses are examined i.e. CWs.1 and 2 as PWs.1 and 2 and both of them have not supported the case of the prosecution. On perusal of the charge sheet CWs.2 to 12 are the eye witnesses to the incident and other witnesses have not been examined before the Trial Court. The Doctor who has been cited as CW.16 also has not been examined. It is also important to note that Section 164 statement was also recorded before CW.17. 21. On perusal of the acquittal order also the trial Judge not allowed the prosecution to examine the other witnesses i.e. who are the eyewitnesses to the incident and the Doctor who treated the injured persons so also not examined the Magistrate who recorded the statement under Section 164 of Cr.P.C. The Court has to distinguish the facts and circumstances of each case. No doubt the Apex Court in Vishwas Bhandari’s case held that neither the prosecutrix nor the complainant have levelled an iota of allegation against the appellant in respect of abduction of the prosecutrix. It is also observed that the prosecutrix and the accused with the consent of both the families they married and living together happily and they are having the children. The said principle laid down in the judgment is not come to the aid of the petitioner and in the said case there was no allegation against the appellant who have approached the Apex Court. In the case on hand a specific allegation is made against the petitioner herein and the Apex Court also taken note of the complainant prosecutrix married the accused and both of them married with the consent of their families. The other judgments are relied upon by the learned counsel for the petitioner is prior to the judgment of the Apex Court passed in Umesh’s casethose judgments are also will not come to the aid of the petitioner herein. 22. This Court would like to refer to the judgment of the Apex Court in the case of Yanob Sheikh alias Gagu v. State of West Bengal reported in 6 SCC 428 and extract paragraph Nos.23 and 26 which read as follows: 23. Nazrul has been acquitted by the trial court. His acquittal was not challenged by the State before the High Court. In other words the acquittal of Nazrul has attained finality. While recording the acquittal of the accused Nazrul the trial court recorded the following “PW 1 and PW 5 at the first blush did not say that accused Yanob threw the bomb at Samim taking the same from the bag of Nazrul and PW 1 stated that Yanob came along with Nazrul with bomb in his hand. He did not say that Nazrul was carrying any cloth bagCrPC. So far as the charge under Section 324 IPC against accused Yanob for causing voluntary hurt to Mahasin and Basir is concerned there is no evidence that the aforesaid persons sustained and or received any injury from the splinters of the exploded bomb thrown by accused Yanob. Mahasin when tendered by prosecution even during cross examination did not say that he sustained any such injury. Basir as already observed had not been examined on the plea that he has been gained over and the defence did not examine him as its witness to prove that the prosecution narrative was not correct and the incident took place in a different of that charge. I therefore hold and find accused Yanob not guilty of the charge under Section 324 IPC and he is acquitted 26. The cumulative effect of the above discussion is that the acquittal of a co accused per se is not sufficient to result in acquittal of the other accused. The Court has to screen the entire evidence and does not extend the threat of falsity to universal acquittal. The court must examine the entire prosecution evidence in its correct perspective before it can conclude the effect of acquittal of one accused on the other in the facts and circumstances of a given case.” 23. This Court would like to refer to the Full Bench judgment of the Kerala High Court in the case of Moosa v. Sub Inspector of Police reported in 2 CCR 445 a similar view was taken in this judgment and held that the Judgment of acquittal of co accused in a criminal trial is not admissible under Sections 40 to 43 of the Evidence Act to bar the subsequent trial of absconding co accused and cannot be reckoned as a relevant document while considering the prayer to quash the proceedings under Section 482 of Cr.P.C. Such judgment would be admissible only to show who were the parties in the earlier proceedings and the factum of acquittal. The Apex Court in its Judgment in the case of Rajan Rai v. State of Bihar reported in 1 SCC 209 held that the trial of co accused tried separately is only an irrelevant in subsequent trial of accused who are not tried earlier. The Judgment of acquittal of co accused will not be admissible within the meaning of Section 40 to 44 of the Evidence Act. 24. This Court would like to refer to Sections 40 to 44 of the Evidence Act which read as follows: “40. Previous judgments relevant to bar a second suit or trial.—The existence of any judgment order or decree which by law prevents any Courts from taking cognizance of a suit or holding a trial is a relevant fact when the question is whether such Court ought to take cognizance of such suit or to hold such trial. 41. Relevancy of certain probate etc. jurisdiction.—A final judgment order or decree of a competent Court in the exercise of probate matrimonial admiralty or insolvency jurisdiction which confers upon or takes away from any person any legal character or which declares any person to be entitled to any such character or to be entitled to any specific thing not as against any specified person but absolutely is relevant when the existence of any such legal character or the title of any such person to any such thing is relevant. Such judgment order or decree is conclusive proof— that any legal character which it confers accrued at the time when such judgment order or decree came into operation that any legal character to which it declares any such person to be entitled accrued to that person at the time when such judgment declares it to have accrued to that person declares it to have accrued to that person that any legal character which it takes away from any such person ceased at the time from which such judgment declared that it had ceased or should cease and that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment declares that it had been or should be his property. 42. Relevancy and effect of judgments orders or decrees other than those mentioned in section 41.—Judgments orders or decrees other than those mentioned in section 41 are relevant if they relate to matters of a public nature relevant to the enquiry but such judgments orders or decrees are not conclusive proof of that which they state. 43. Judgments etc. other mentioned in sections 40 to 42 when relevant.— Judgments orders or decrees other mentioned in sections 40 41 and 42 are irrelevant unless the existence of such judgment order or decree is a fact in issue or is relevant under some other provisions of this Act. 44. Fraud or collusion in obtaining judgment or incompetency of Court may be proved.—Any party to a suit or other proceeding may show that any judgment order or decree which is relevant under section 40 41 or 42 and which has been proved by the adverse 19 party was delivered by a Court not competent to deliver it or was obtained by fraud or collusion. 25. Having perused Sections 40 to 44 the acquittal of co accused in a criminal trial is not admissible and Sections 40 to 43 of the Evidence Act not bar the subsequent trial of absconding co accused. 26. This Court also would like to refer to the judgment of the Apex Court in the case of State Rep. by the CBI v. Anil Sharma reported in 1997 SCC 1039 wherein the Apex Court held that the petitioner never associated with the investigation. Thus investigating agency may have been handicapped in collecting the evidence and further observed that custodial interrogation is more elicitation oriented. However the petitioner never associated with investigation. The Investigating Agency thus never got an opportunity either to seek their custodial information or record their statements. In case such accused who have scant respect for law are given benefit of their own wrong it would be travesty of justice. 27. Having perused the principles laid down in the judgments referred supra it is clear that the judgment of 20 acquittal of co accused would not be admissible within the meaning of Sections 40 to 44 of the Evidence Act. It is also important to note that in the present case on hand the complainant in the complaint a specific allegation is made against the petitioner herein not only in the complaint and also in his statement under Section 164 of Cr.P.C. However this petitioner was absconded he waited for the trial of co accused to be over and thereafter he preferred the instant petition seeking quashing on the basis of their acquittal. Hence it is clear that the very conduct of the accused that he is not having any scant respect for law and if he has given benefit of their own wrong it would be travesty of justice as held by the Apex Court in the judgments referred supra. 28. The learned counsel appearing for the petitioner also relied upon the judgment of the Apex Court in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra and others reported in1 SCC 694 and brought to the notice of this Court paragraph No.136 with regard to if this court comes to any other conclusion in view of the other co ordinate benches have extended the benefit of the matter has to 21 be referred to the larger bench. The said contention also cannot be accepted for the reason that the Apex Court in the judgment referred supra in Yanob Sheikh’s caseand in Umesh’s casecategorically held that the judgment of acquittal of co accused would not be admissible within meaning of Sections 40 to 44 of the Evidence Act. When the same is not admissible under the Evidence Act and also the Apex Court dealt with the matter in detail referring to Sections 40 to 43 of the Evidence Act and the Full Bench judgment of the Kerala High Court in Moosa’s caseheld that the Judgment of acquittal is not admissible under Sections 40 to 43 of the Evidence Act and the benefit cannot be extended. This Court has already pointed out that each case facts and circumstances has to be considered and the Court has to obey the dictums of the Apex Court held in Yanob Sheikh’s case and Umesh’s case However the petitioner accused is directed to appear before the Trial Court and he may be enlarged on bail subject to executing a personal bond for a sum of Rs.50 000 with one surety for the like sum to the satisfaction of the Trial Court. He is given liberty to file necessary application for discharge before the Trial Court and the same shall be considered in accordance with law. Sd

Cognizance for extension was only for the period of limitation: Delhi High Court

The cognizance for extension of limitation awarded by the court during the Covid-19 pandemic was only on the ‘period of limitation’ and not the period up to which the delay can be condoned. This was held by Hon’ble Justice Asha Menon in the case of Bharat Kalra Vs. Raj Kishan Chhabra [CM (M) 429/2021] on the 12th of August before the Hon’ble High Court of Delhi at New Delhi. The brief facts of the case are, the respondent is the sole owner of the Property No.24, Surya Niketan, Delhi–110092, admeasuring 331 square yards. Thereafter, desirous of re-constructing the property into a Multi-storey building, he entered into an agreement with the petitioner who presented himself as being engaged in the business of promotion, development and construction of properties. A Collaboration Agreement was executed between the parties on 4th December 2017. In accordance with the said agreement, the cost and expenses of raising the construction were to be borne by the petitioner only. According to the Agreement, the petitioner and respondent were also to get separate portions of the said property after construction. The respondent had alleged that the petitioner failed to carry out the construction even after a lapse of 22 months and also failed to make payment of additional sum as per agreed schedule in the Collaboration Agreement. The respondent also claimed that the petitioner had undertaken to pay the rent of the premises in which the respondent had to shift on account of the demolition of the existing structure, but failed to honor this commitment. In short, these disputes between the parties led to the filing of the instant suit by the respondent seeking injunctions against the petitioner from interfering with the peaceful and lawful possession of the respondent, in respect of the property, with further directions to him to remove all his machinery, labor and other building equipment from the premises and restraining him from creating any third-party interest in the said property. A Decree of Declaration to declare the Collaboration Agreement dated 4th December, 2017 as legally terminated on breach by the petitioner and that the petitioner had no right, title or interest in the said property was also sought. An application was filed by the petitioner/defendant under Order VIII Rule 1 CPC seeking condonation of delay in filing the written statement and reply to application under Order XXXIX Rules 1 & 2 CPC. This was opposed by the respondent/plaintiff. The learned Trial Court vide the impugned order dated 6th April, 2021 dismissed the said application on the ground that there was “no plausible explanation and coherent reason” explaining the delay in filing the written statement and reply to application under Order XXXIX Rules 1 & 2 CPC. The counsel for the petitioner submits hat even under Order VIII Rule 1 CPC, the Court had the powers to condone the delay in filing the written statement up to a period of 120 days from the date of service of summons. This period of 120 days would have ended on 10th May, 2020 by which time, a complete lockdown had been enforced. Owing to the lockdown and the difficulties being faced by the counsel in filing cases across the country, the Supreme Court vide orders Re: Cognizance for Extension of Limitation, directed that the period of limitation shall stand extended w.e.f. 15th March, 2020 till further orders in that petition. Vide order dated 8th March, 2021, the Suo moto proceedings were disposed of directing that in computing the period of limitation, the period from 15th March, 2020 till 14th March, 2021 shall stand excluded. The counsel for the respondent however said, hat there was no error in the impugned order and the court could not re-appreciate facts in exercise of its powers under Article 227 of the Constitution of India. It was further submitted that the application filed by the petitioner/defendant for condonation of delay in filing the written statement to the suit and reply to the application contained only bald averments that the delay was on account of the counsel or the clerk who had misplaced the file as no affidavit of the clerk or counsel had been filed. Further, there was no explanation as to why, despite the recovery of the files on 14th March, 2020, the written statement was not filed till 20th August, 2020, even though the lockdown had been eased and filing permitted by June, 2020. It was also submitted that the learned Trial Court had rightly concluded that there was no explanation and that there was lack of bona fides in filing the application. The learned judge heard the submissions of both the parties and read the order by the supreme court which states that, “on 23rd March 2020, it was directed that the period of limitation in filing the petitions/applications/suits/ appeals/all other proceedings, irrespective of the period of limitation prescribed under the general or special laws, shall stand extended w.e.f. 15th March, 2020 till further orders”. The court relied on the judgement in Sagufa Ahmed v. Upper Assam Plywood Products (P) Ltd., (2021) 2 SCC 317, wherein it was held that, “But we do not think that the appellants can take refuge under the above order in Cognizance for Extension of Limitation, In re [Cognizance for Extension of Limitation, In re, (2020) 19 SCC 10: 2020 SCC OnLine SC 343]. What was extended by the above order of this Court was only “the period of limitation” and not the periof up to which delay can be condoned in exercise of discretion conferred by the statute. The above order [Cognizance for Extension of Limitation, In re, (2020) 19 SCC 10: 2020 SCC OnLine SC 343] passed by this Court was intended to benefit vigilant litigants who were prevented due to the pandemic and the lockdown, from initiating proceedings within the period of limitation prescribed by general or special law. It is needless to point out that the law of limitation finds its root in two Latin maxims, one of which is vigilantibus et non dormientibus jura subveniunt which means that the law will assist only those who are vigilant about their rights and not those who sleep over them.” Applying this to the present case, the court dismissed the present petition by holding, “there was no lockdown from 1st June, 2020. What expired during the lockdown was not the limitation to file the written statement. On being served on 11th January, 2020, the petitioner/defendant had to file the written statement by 10th February, 2020. On 14th March, 2020, when the misplaced file and documents were supposedly found, a further period of 33 days had already expired. By 23rd/25th March, 2020, when the lockdown in Delhi/nationwide lockdown was announced, a total of 72/74 days had already expired. Second proviso to Order VIII Rule 1 CPC vests the court with discretion to condone delay in filing the written statement provided a total time period of 120 days from the date of service of summons had not elapsed. It is in this context that the petitioner/defendant was required to explain why he did not file the written statement immediately in June, 2020 and waited for a further period of almost three months to file the written statement. It would have been probably different had the first 30 days of limitation being available when the lockdown was enforced, as in that event, without a doubt, the limitation would have been enlarged in terms of the directions of the Supreme Court.”

CM429 2021 IN THE HIGH COURT OF DELHI AT NEW DELHI % Reserved on: 14th July 2021 Pronounced on: 12th August 2021 + CM429 2021 BHARAT KALRA .....Petitioner Through: Mr. Jitendra Bakshi Advocate Versus RAJ KISHAN CHABRA .....Respondent Through: Mr. Shrey Ashat Advocate CORAM: HON BLE MS. JUSTICE ASHA MENON JUDGMENT 1. This petition has been filed under Article 227 of the Constitution of India by the petitioner defendant before the learned Trial Court challenging the order dated 6th April 2021 passed by the Additional District Judge 01 Shahdara District Karkardooma Courts Delhi in Civil Suit No.827 2019. The petitioner defendant has sought setting aside of the impugned order whereby the delay in filing his written statement along with reply to the application under Order XXXIX Rules 1 and 2 the Code of Civil Procedure 1908has not been condoned. 2. The respondent plaintiff had filed a suit against the petitioner defendant for declaration mandatory and permanent injunction rendition of accounts and damages. The respondent plaintiff is the sole CM429 2021 owner of the Property No.24 Surya Niketan Delhi110092 admeasuring 331 square yards. He claims to have been residing in the said property since 1983. Thereafter desirous of re constructing the property into a Multi storey building he entered into an agreement with the petitioner defendant who presented himself as being engaged in the business of promotion development and construction of properties. A Collaboration Agreement was executed between the parties on 4th December 2017. In accordance with the said agreement the cost and expenses of raising the construction were to be borne by the petitioner defendant only. According to the Agreement the petitioner defendant and respondent plaintiff were also to get separate portions of the said property after construction. The respondent plaintiff had alleged that the petitioner defendant failed to carry out the construction even after a lapse of 22 months and also failed to make payment of additional sum as per agreed schedule in the Collaboration Agreement. 3. The respondent plaintiff also claimed that the petitioner defendant had undertaken to pay the rent of the premises in which the respondent plaintiff had to shift on account of the demolition of the existing structure but failed to honor this commitment. In short these disputes between the parties led to the filing of the instant suit by the respondent plaintiff seeking injunctions against the petitioner defendant from interfering with the peaceful and lawful possession of the respondent plaintiff in respect of the property No. 24 Surya Niketan Delhi110092 with further directions to him to remove all his machinery CM429 2021 labour and other building equipments from the premises and restraining him from creating any third party interest in the said property. A Decree of Declaration to declare the Collaboration Agreement dated 4th December 2017 as legally terminated on breach by the petitioner defendant and that the petitioner defendant had no right title or interest in the said property was also sought. Monetary claims of Rs.24 50 000 towards rent for the period from 15th December 2017 to November 2019 Rs.4 00 000 as penalty for non completion of the construction of the Multi storey building on the suit property by 6th July 2019 Rs.25 00 000 towards damages for hardship harassment mental agony caused to the respondent plaintiff by the petitioner defendant along with interest were also made. 4. Summons of the suit and the application were served upon the petitioner defendant on 11th January 2020. There is no dispute with regard to this fact. However the written statement was not filed until 20th August 2020. An application was filed by the petitioner defendant under Order VIII Rule 1 CPC seeking condonation of delay in filing the written statement and reply to application under Order XXXIX Rules 1 & 2 CPC. This was opposed by the respondent plaintiff. The learned Trial Court vide the impugned order dated 6th April 2021 dismissed the said application on the ground that there was “no plausible explanation and coherent reason” explaining the delay in filing the written statement and reply to application under Order XXXIX Rules 1 & 2 CPC. 5. Mr. Jitender Bakshi learned counsel for the petitioner defendant submitted that owing to the lockdown and the difficulties being faced by CM429 2021 the counsel in filing cases across the country the Supreme Court vide orders dated 23rd March 2020 had in Suo Motu Writ PetitionNo(s).3 2020 in Re: Cognizance for Extension of Limitation directed that the period of limitation shall stand extended w.e.f. 15th March 2020 till further orders in that petition. Vide order dated 8th March 2021 the suo moto proceedings were disposed of directing that in computing the period of limitation the period from 15th March 2020 till 14th March 2021 shall stand excluded. 6. It was argued by learned counsel for the petitioner defendant that even under Order VIII Rule 1 CPC the Court had the powers to condone the delay in filing the written statement up to a period of 120 days from the date of service of summons. This period of 120 days would have ended on 10th May 2020 by which time a complete lockdown had been enforced. Learned counsel for the petitioner has also relied on the order of this court in Vinod Kumar Kad v. Girish Kumar Kad636 2019] to submit that even the High Court has been condoning delay in filing written statements taking into account the extra ordinary situation on account of the Covid 19 pandemic. Hence it was prayed that the impugned order be set aside and the written statement to the suit and reply to the application under Order XXXIX Rules 1 & 2 CPC be taken on record. 7. Mr. Shrey Ashat learned counsel for the respondent plaintiff submitted that there was no error in the impugned order and the court could not re appreciate facts in exercise of its powers under Article 227 of the Constitution of India. It was further submitted that the application CM429 2021 filed by the petitioner defendant for condonation of delay in filing the written statement to the suit and reply to the application contained only bald averments that the delay was on account of the counsel or the clerk who had misplaced the file as no affidavit of the clerk or counsel had been filed. Further there was no explanation as to why despite the recovery of the files on 14th March 2020 the written statement was not filed till 20th August 2020 even though the lockdown had been eased and filing permitted by June 2020. It was also submitted that the learned Trial Court had rightly concluded that there was no explanation and that there was lack of bona fides in filing the application. He thus prayed that the petition be dismissed. 8. The application under Order VIII Rule 1 CPC placed on this record as Annexure 5 states that after much effort the file containing all relevant documents could be located on 14th March 2020. Not a word has been mentioned as to why thereafter no action was taken on behalf of the petitioner defendant to file the written statement and reply. The lockdown in Delhi was enforced w.e.f. 23rd March 2020 whereas the nationwide lockdown was announced with effect from w.e.f. 25th March 2021 which was extended from time to time. The District Courts started functioning in May 2020 in a limited fashion physically and through video conferencing. The lockdown was lifted w.e.f. 1st June 2020. 9. A mere claim that further delay in filing the written statement and reply was caused due to Covid 19 induced circumstances as the working of the office of the counsel for the petitioner defendant could normalize only by the middle of August 2020 offers no explanation for the delay CM429 2021 occurring prior to the lockdown and during the partial opening of the courts. Neither does it explain the delay from 1st June 2020 to 20th August 2020. As rightly pointed out by learned counsel for the respondent plaintiff in support of the application only the affidavit of the petitioner defendant has been filed who could not have verified the truth of the plea taken of disruption in the office of the counsel. As held in Vijay Gopal Jindal v. Srei Infrastructure Finance Limited 2009 SCC OnLine Del 3932 and Ranbir v. Slokya College of Nursing 2014 SCC Online Del 4338 this plea appears to be one of “convenience” in an effort to take the benefit of the extension of limitation period on account of Covid 19. 10. In Re: Cognizance for Extension of Limitationthe Supreme Court had taken suo motu cognizance of the situation arising on account of the Covid 19 pandemic and the difficulties faced by the litigants across the country. Thus on 23rd March 2020 it was directed that the period of limitation in filing the petitions applications suits appeals all other proceedings irrespective of the period of limitation prescribed under the general or special laws shall stand extended w.e.f. 15th March 2020 till further orders. On 8th March 2021 the suo motu proceedings were disposed of directing that in the computation of the period of limitation for any suit appeal application or proceeding the period from 15th March 2020 till 14th March 2021 shall stand excluded. Consequently the balance period of limitation remaining as on 15th March 2020 if any would become available with effect from 15th March 2021. In the event the period of limitation had expired between 15th CM429 2021 March 2020 and 14th March 2021 a further period of 90 days was granted for taking necessary steps. 11. Vide orders dated 27th April 2021 in view of the second surge in Covid 19 cases the Supreme Court restored the order dated 23rd March 2020 directing that the period of limitation as prescribed under any general or special laws in respect of judicial or quasi judicial proceedings whether condonable or not shall stand extended till further orders. The period from 14th March 2021 till further orders was also directed to be excluded from computation of the prescribed period of limitation under various laws. The learned counsel for the petitioner defendant is seeking benefit of these directions. 12. The learned counsel for the petitioner defendant has also relied upon SS Group Pvt. Ltd. v. Aaditiya J. Garg 2020 SCC OnLine SC 1050 to submit that subsequently the Supreme Court itself has condoned the delay in filing replies before the National Consumer Disputes Redressal Commissionwhereby in an order under Order VIII Rule 1 CPC observing that as the ninety days of the limitation period had expired during the Covid 19 lockdown the delay was condoned. 13. While it is true that the power to condone delay is intended to advance substantive justice nevertheless procedure cannot be given a complete go by. The powers of the court to condone delay is to be used in appropriate cases. No litigant can assume that as a matter of right the delay in taking steps would be condoned because procedure is the CM429 2021 handmaiden of substantive justice. Rights accruing to the opposite party on account of the delayed action need to be also kept in mind. The reasons given for explaining the delay are of paramount importance and not the length of the delay. The shortness of delay alone ought not to suffice for exercise of discretion to condone it. Cogent and clear explanations have led the courts to condone the delay even of five years in filing the pleadings. 14. In the present case as noticed above there is no explanation for the inaction of the petitioner defendant from 14th March 2020 till the actual date of filing of the written statement and the reply on 20th August 2020. Had there been cogent reasons the entire period and not merely 120 days could have been condoned. The Supreme Court in Sagufa Ahmed v. Upper Assam Plywood ProductsLtd. 2 SCC 317 was dealing with a case in which the National Company Law Appellate Tribunalhad dismissed the application for condonation of delay. Vide order dated 18th September 2020 the Supreme Court while referring to its orders dated 23rd March 2020 in the sou motu writ petition held as follows: “17. But we do not think that the appellants can take refuge under the above order in Cognizance for Extension of Limitation In re19 SCC 10: 2020 SCC OnLine SC 343]. What was extended by the above order19 SCC 10: 2020 SCC OnLine SC 343] of this Court was only “the period of limitation” and not the period up to which delay can be condoned in exercise of discretion conferred by the statute. The above order429 2021 In re 19 SCC 10: 2020 SCC OnLine SC 343] passed by this Court was intended to benefit vigilant litigants who were prevented due to the pandemic and the lockdown from initiating proceedings within the period of limitation prescribed by general or special law. It is needless to point out that the law of limitation finds its root in two Latin maxims one of which is vigilantibus et non dormientibus jura subveniunt which means that the law will assist only those who are vigilant about their rights and not those who sleep over them.” 15. It was thus made clear that the benefit of the order dated 23rd March 2020 would be available only to those who were vigilant of their rights and not lethargic. There is also nothing in the orders of the Supreme Court that suggests that when an action has not been taken within the prescribed period of limitation the merits of the application for condonation of delay need not be looked into and the same is to be allowed automatically. Only where the limitation has expired during the lockdown and even the extended period which can be allowed in the discretion of the court also expired in the lockdown period a party can claim that no delay has occurred as the Supreme Court had enlarged limitation periods prescribed. 16. In the present case there was no lockdown from 1st June 2020. What expired during the lockdown was not the limitation to file the written statement. On being served on 11th January 2020 the petitioner defendant had to file the written statement by 10th February 2020. On 14th March 2020 when the misplaced file and documents were supposedly found a further period of 33 days had already expired. By CM429 2021 23rd 25th March 2020 when the lockdown in Delhi nationwide lockdown was announced a total of 72 74 days had already expired. Second proviso to Order VIII Rule 1 CPC vests the court with discretion to condone delay in filing the written statement provided a total time period of 120 days from the date of service of summons had not elapsed. It is in this context that the petitioner defendant was required to explain why he did not file the written statement immediately in June 2020 and waited for a further period of almost three months to file the written statement. It would have been probably different had the first 30 days of limitation being available when the lockdown was enforced as in that event without a doubt the limitation would have been enlarged in terms of the directions of the Supreme Court. 17. Following the judgment of the Supreme Court in Sagufa Ahmedand particularly in the absence of any cogent explanation forthcoming for the inaction of the petitioner defendant till 20th August 2020 the learned Trial Court rightly dismissed the application under Order VIII Rule 1 CPC. There is no perversity in the impugned orders and hence no ground is made out to interfere with the same. 18. The petition is accordingly dismissed. 19. The judgment be uploaded on the website forthwith. JUDGE AUGUST 12 2021 pkb s

Vehicle of accused bought via finance from bank to be released and handed over to the Bank, in case where the vehicle is in Police custody: High Court of Bombay at Nagpur

In the present case, a writ petition is filled by the petitioner Bank has challenged the order dated 14.01.2021 passed by the Add. Sessions Judge, Nagpur the application filed by the petitioner-Bank for release of vehicle was rejected. A single-judge bench comprising of Justice Manish Pitale adjudicating the matter of AU Small Finance Bank Limited v. State of Maharashtra (CRIMINAL WRIT PETITION NO. 221/2021) dealt with the issue of whether to allow the present writ petition or not. The Petitioner it had financed purchase of Vehicle Mahindra Bolero, bearing Registration No. MH-40 KR-1489 by the Respondent. An FIR was registered against Respondent and another accused person for allegedly having caused the death of a person. The Respondent alleged along with other accused person gave a dash to the motor-cycle of the victim while driving the said vehicle and thereafter allegedly caused the death of the victim by assaulting him with stone. Upon registration of FIR and during the course of the investigation, the said vehicle was taken into custody by the Investigating Officer and it has been lying with the police as such. The Respondent was arrested in connection with the said offence registered against him and the other accused person under Section 302 r/w 34 of the Indian Penal Code. The Respondent submitted that if the vehicle is released in favour of the petitioner-Bank, it would most likely be sold and consequently, it will not be available during the course of the trial. The Petitioners submitted that there was an error in passing of the impugned order and that the vehicle ought to have been released by imposing appropriate conditions, for the reason that the petitioner-Bank is admittedly financer of the said vehicle. The Respondents stated that apart from imposing appropriate conditions, a direction may be given to the Investigating Officer to take photograph of the vehicle and to execute a panchnama before releasing the vehicle in favour of the petitioner-Bank. The court held that in the backdrop of the fact that there is no dispute about the petitioner being a financer of the vehicle, there should be no impediment in directing the release of the vehicle in favour of the petitioner by imposing appropriate conditions. According to the facts and circumstances the Session’s Court failed to look in the correct perspective and erroneously rejected the application.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR CRIMINAL WRIT PETITION NO. 221 2021 PETITIONERS : M s AU Small Finance Bank Limited Formerly known as M s AU Fiananciers India) Limited having its registered office at 19A Dhuleshwar Garned Ajmer Road Jaipur Having its Branch Office at "SAMEEP TOWER" 4th Floor East High Court Road New Ramdaspeth Nagpurthrough its Authorized Person Mr Vijay Ramdas Kamble …VERSUS… State of Maharashtra through Officer in Charge Police Station P.S.Khaparkheda Rajendra Namdeo Pendane aged about Major Occ. Business R o. Bhanegaon H.No.1160 Ward No.3 New Bhanegao Nagpur Accused is in Central Jail Nagpur. RESPONDENT: 1 Shri D.R.Galande Advocate for petitioners Shri Y.B.Mandpe Advocate for respondent CORAM : MANISH PITALE J DATE : 26 07 2021 Hearing was conducted through video conferencing and the learned counsel agreed that the audio and visual quality was Heard learned counsel for the petitioner 2 Learned APP waives service of notice on behalf of Rule made returnable forthwith. Heard finally by consent of learned counsel for the parties By this writ petition the petitioner Bank has challenged the order dated 14.01.2021 passed by the Court of Additional Sessions Judge Nagpur whereby the application filed by the petitioner Bank for release of vehicle was rejected. It is the case of the petitioner Bank that it had financed purchase of Vehicle Mahindra Bolero bearing Registration No MH 40 KR 1489 by the respondent No.2. The record shows that on 01.12.2019 FIR was registered against respondent No.2 and another accused person for allegedly having caused the death of a person. The allegation appears to be that respondent No.2 along with other accused person gave a dash to the motor cycle of the victim while driving the said vehicle and thereafter allegedly caused the death of the victim by assaulting him with stone. Upon registration of FIR and during the course of investigation the said vehicle was taken into custody by the Investigating Officer and it has 3 been lying with the police as such. The respondent No.2 was arrested in connection with the said offence registered against him and the other accused person under Section 302 r w 34 of the Indian Penal Code. This Court issued notice in the present petition and the respondent No.2 was served in jail. Despite service he has chosen not to appear before this Court. The respondent No.1 State has filed its reply to the present writ petition. The stand taken by the State is similar to the one taken before the Sessions Court wherein it was submitted that if the vehicle is released in favour of the petitioner Bank it would most likely be sold and consequently it will not be available during the course of trial Mr. Ansari learned counsel for the petitioner submitted that the Sessions Court erred in passing the impugned order and that the vehicle ought to have been released by imposing appropriate conditions for the reason that the petitioner Bank is admittedly financer of the said vehicle. Reliance is placed on 4 various judgments and particularly on the judgment and order dated 18.02.2020 passed by this Court in Criminal Writ Petition No 580 2019. According to the learned counsel for the petitioner in identical circumstances this Court has allowed such an application for release of vehicle Mr. Chutke learned APP appearing on behalf of respondent No.1 State submitted that apart from imposing appropriate conditions a direction may be given to the Investigating Officer to take photograph of the vehicle and to execute a panchnama before releasing the vehicle in favour of the petitioner Considering the facts and circumstances of the present case in the backdrop of the fact that there is no dispute about the petitioner being financer of the vehicle there should be no impediment in directing release of the vehicle in favour of the petitioner by imposing appropriate conditions The Sessions Court in the present case while passing the impugned order failed to appreciate the facts and circumstances 5 in the correct perspective and erroneously rejected the application moved on behalf of the petitioner. There is substance in the contention raised on behalf of the petitioner Bank that this Hon ble Court in the aforementioned judgment and order passed in the case of the petitioner bank itself in Criminal Writ Petition No. 580 2019 in identical circumstances had granted release of vehicle. In view of the above the present writ petition is allowed. The impugned order dated 14.01.2021 is quashed and set aside. The said vehicle shall be released in favour of the petitioner Bank subject to appropriate conditions that may be imposed by the learned trial Court i.e the Court of Additional Sessions Judge 10 Nagpur. Upon the conditions so imposed by the learned trial Court being satisfied by the petitioner the vehicle shall be released forthwith in favour of the petitioner Rule is made absolute in above terms. No order as to JUDGE

Special (POCSO) case was set aside as no reason was assigned for the cognizance order – Jharkhand high court

Special (POCSO) case was set aside as no reason was assigned for the cognizance order – Jharkhand high court A petition demanding the quashing of entire criminal proceedings and order taking cognizance in Special (POCSO) Case No.22 of 2020 was disposed of because the court found the reason for taking cognizance not reliable the judgment was given by a single bench of HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI in the case of Ram Nandan Paswan versus The state of Jharkhand (Cr.M.P.No.2356 of 2021) The learned counsel appearing on behalf of the petitioner submits that a petitioner is an old man of about 67 years and the entire allegation against the accused is false and these allegations are made because the wife of the petitioner has lodged an FIR being SC/ST Birsa Nagar P.S.Case  No.11/2019 against the informant and other co-accused persons and in against of it the false case has been made. The counsel further submits that the   I.O  investigated and submitted the final form showing a lack of evidence against the accused and despite this investigation, the learned court has granted cognizance against the accused and there is no strong reason given on differing and it is a  well-settled rule of law that no detailed order is required to be made for passing any order or for summoning the accused and there is no probable doubt that the concerned court should differ and it is within the jurisdiction of the court but to take cognizance or for that reason is required to be disclosed in the order. which has not been done in the case in hand reference has been made to the case of “Nupur Talwar v. Central Bureau of Investigation and Another”, (2012) 11 SCC 465. The learned court finds that the court has differed from the charge sheet and taken cognizance against a settled rule of law and the reason has not been assigned as to why cognizance is required to be taken against the accused and with this the court decides that corresponding to Sidhgora P.S. Case No.169 of 2019 pending in the court of learned Additional Sessions Judge cum Special Judge (POCSO), is set aside. Click here to read the judgment

IN THE HIGH COURT OF JHARKHAND RANCHI Ram Nandan Paswan @ Raj Nath Paswan aged about 67 years son of late Jitan Paswan resident of Patna Line Bajrang Chowk P.O. Sidhgora and PS Sidhgora Town Jamshedpur District East SinghbhumCase No.22 of 2020 corresponding to Sidhgora P.S. Case No.169 of 2019 pending in the court of learned Additional Sessions Judge cum Special Judgeat Jamshedpur. The case was lodged stating therein that the prosecution as per the FIR in brief is that the victim aged about five years is daughter of informant. The informant was doing work of maid in the house of the accused Ram Nath Paswan. It is alleged that the accused used to do obscene act with minor victim daughter. It is alleged that when the victim feel pain in her private part then the informant asked to her daughter who disclosed that when informant used to work the accused took her victim daughter to show TV and he did obscene act with her daughter. It is alleged that the accused person did such act several times. When she asked then her daughter told that Dadu did the alleged act with her on pretext of showing T.V. Mr. Indrajit Sinha the learned counsel for the petitioner submits that the petitioner is aged about 67 years and the entire allegation against the petitioner is false. He submits that the wife of the petitioner had also lodged FIR being SC ST Birsa Nagar P.S.Case No.11 2019 against the informant and other co accused persons. He submits that after investigation the I.O submitted final form showing lack of evidence against the petitioner and inspite of that the learned court has taken cognizance against the petitioner. He submits that there is no reason assigned on differing. It is well settled that no detailed order is required to be passed for passing any order for summoning the accused but in the case where final form has been submitted in favour of the accused and the Magistrate is intending to proceed on a complaint petition he is required to make reasons of differing with the final form which has not been done in the case. There is no doubt that the concerned court should differ and it is within its jurisdiction of the court but to take cognizance for that reason is required to be disclosed in the order which has not been done in the case in hand. A reference may be made to the case of “Nupur Talwar v. Central Bureau of Investigation and Another” 11 SCC 465. Paragraph no.19 of the said judgment is quoted hereinbelow: “19. Since CBI wanted the matter to be closed it was appropriate though not imperative for the Magistrate to record reasons for differing with the prayer made in the closure report. After all CBI would have surely wished to know how it went wrong. But then there are two other important factors in this case which further necessitated the recording of reasons. Firstly the complainant himself was being summoned as an accused. Such an action suggests that the complainant was Magistrate actually reversed the position of the adversaries. The party which was originally pointing the finger is now sought to be pointed at. Certainly the complainant would want to know why.” the accused. The action taken by The learned counsel appearing on behalf of the respondent State opposes the prayer made by the learned counsel for the petitioner. In the case in hand the learned court has differed with the charge sheet and taken cognizance. In the cognizance order the reason has not been assigned as to why cognizance is required to be taken against the petitioner. In view of settled law the impugned order dated 04.06.2020 passed in connection with SpecialCase No.220 corresponding to Sidhgora P.S. Case No.169 of 2019 pending in the court of learned Additional Sessions Judge cum Special Judge at Jamshedpur is hereby set aside. The matter is remitted back to the concerned court to pass fresh order in light of the settled proposition of law in this regard. SI Disposed of. Sanjay Kumar Dwivedi J)

A person cannot be deprived of this pension without the authority of law, which is the constitutional mandate, enshrined in Article 300-A of the Constitution: Jharkhand High Court

There is an imprimatur to the legal principle that the right to receive a pension is recognised as a right in property. It follows that the attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced. The High of Court Jharkhand in the case of Manorama Jha vs The State of Jharkhand [W.P.(S) No. 993 of 2019] by Single Bench consisting of Hon’ble Shri Justice Sanjay Kumar Dwivedi. The husband of the petitioner was appointed on the post of Medical Officer in the Department of Health in the erstwhile State of Bihar. Subsequently, in view of the bifurcation of the State of Bihar, the petitioner was allocated the State of Jharkhand cadre and superannuated from the post of Civil Surgeon-cum Medical Officer. Further, the petitioner has preferred this writ petition for quashing the passed by the Government of Jharkhand whereby 10 % of Gratuity and Pension has been directed to be withheld. The learned counsel for the petitioner submits that the husband of the petitioner has not received any show cause, except a show-cause notice, which was duly replied nor any departmental or criminal case is pending against the husband of the petitioner. He submits that no departmental proceeding has been initiated against the husband of the petitioner. He submits that only on the basis of one letter of the State of Bihar the said order has been passed by the State of Jharkhand whereby 10 % pension and gratuity has been directed to be withheld. He submits that there is no finding of any loss in terms of Rule 43(b) which is a condition precedent for passing such order. He further submits that there was no departmental proceeding initiated against the husband of the petitioner before his superannuation. He submits that in that view of the matter, Rule 43(2)(b) has wrongly been applied that too, on a letter of 2001 by the State of Bihar. The learned counsel for the respondent-State of Jharkhand has tried to justify the order and submits that there is no material before the State of Jharkhand and the State of Jharkhand was compelled to take a decision in light of the 2001 order of the State of Bihar.

W.P.(S) No. 9919] IN THE HIGH COURT OF JHARKHAND RANCHI W.P.(S) No. 9919 Manorama Jha aged about 70 years wife of late Dr. Krishna Bandhu Jha resident of Hazaribagh Behind Caramel School PO Hazaribagh Sadar PS Hazaribagh Sadar District Hazaribagh(Jharkhand) Versus ….. Petitioner 1. The State of Jharkhand through the Principal Secretary Health Department Government of Jharkhand having its office at Project Bhawan PO Dhurwa PS Jagarnathpur District Ranchi 2. The Director in Chief Department of Health Government of Jharkhand having its office at Namkum PO Namkum PS Namkum District Ranchi 3. The State of Bihar through the Principal Secretary Health Department Government of Bihar having its office near New Secretariat PO PS and District Patna Bihar 4. The Accountant General Jharkhand having its office at Doranda PO and PS Doranda District Ranchi Jharkhand 5. The Accountant General Bihiar having its office near R Block PO and PS Patna District Patna Bihar ............................... Respondents CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI For the Petitioner : Mr. Rohit Sinha Advocate For Resp. State Mr. Shadab bin Haque Advocate For Resp.State(Bihiar)Mr. Diwakar Upadhyay Advocate For Resp.No.4(Acct.Gen)Mr. Sudarshan Srivastav Advocate Heard Mr. Rohit Sinha the learned counsel appearing on behalf of the petitioner Mr. Shadab bin Haque the learned counsel appearing on behalf of the respondent State of Jharkhand Mr. Diwakar Upadhyay the learned counsel appearing on behalf of the respondent State of Bihar and Mr. Sudarshan Srivastava the learned counsel appearing for the respondent No.4[Accountant General]. This writ petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into W.P.(S) No. 9919] 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. The petitioner is happened to be the widow of late Dr. Krishna Bandhu Jha who died on 22.05.2015 and that is why she has come before this Court. The petitioner has preferred this writ petition for quashing the order dated 02.01.2004 passed by the Government of Jharkhand whereby 10 % of Gratuity and Pension has been directed to be withheld. The prayer for releasing of the said 100 % pension and gratuity were also made. Prayer for penal interest is also made. The husband of the petitioner was appointed on 02.12.1966 on the post of Medical Officer in the department of Health in the erstwhile State of Bihar. Subsequently in view of bifurcation of the State of Bihar the petitioner was allocated the State of Jharkhand cadre and superannuated on 31.01.2001 from the post of Civil Surgeon cum Medical Officer Giridih. A show cause was issued in the year 1998 for the alleged purchase of the medicine which was replied by the husband of the petitioner. The learned counsel for the petitioner submits that the petitioner has also moved in W.P.(S) No.6607 2002 which was disposed of with a direction to consider the case of the petitioner. He further submits that the husband of the petitioner has not received any show cause except a show cause dated 19.05.1998 which was duly replied nor any departmental or criminal case is pending against the husband of the petitioner. He submits that no departmental proceeding has been initiated against the husband of the petitioner. By way of referring the impugned order dated 02.01.2004 he submits that only on the basis of one letter W.P.(S) No. 9919] of the State of Bihar the said order has been passed by the State of Jharkhand whereby 10 % pension and gratuity has been directed to be withheld. He submits that there is no finding of any loss in terms of Rule 43(b) which is a condition precedent for passing such order. He further submits that there was no departmental proceeding initiated against the husband of the petitioner before his superannuation. He submits that in that view of the matter Rule 43(2)(b) has wrongly been applied that too on a letter of 2001 by the State of Bihar. He submits that the State of Jharkhand was required to take independent decision irrespective of the document of the Government of Bihar. The learned counsel for the respondent State of Jharkhand has tried to justify the order and submits that there is no material before the State of Jharkhand and the State of Jharkhand was compelled to take decision in light of 2001 order of the State of Bihar. Mr. Upadhyay the learned counsel for the respondent State of Bihar submits that pursuant to the order of this Court dated 25.11.2020 a supplementary counter affidavit dated 04.02.2021 has been filed on behalf of the respondent State of Bihar. By way of referring paragraph no.5 of the said supplementary counter affidavit he submits that the office of the Superintendent of Police Central Bureau of Investigation Animal Husbandry Department Branch Patna informed vide letter dated 22.01.2021 wherein it has been stated that no MSD scam against Dr. Krishna Bandhu Jha the then District Tuberculosis Officer Hazaribagh is pending. Having heard the learned counsels appearing on behalf of the parties the Court has gone through the materials on record including the impugned order dated 02.01.2004. The said order was passed pursuant to the order of this Court in W.P.(S) No.66002 whereby W.P.(S) No. 9919] 10% of the pension and gratuity was directed to be withheld on the strength of the letter dated 11.07.2001 by the Government of Bihar and that too applying Rule 43(b) of Pension Rules. This order has been passed on the strength of Government of Bihar letter dated 11.07.2001 which was not required to be considered in view of the fact that now the petitioner was in the cadre of the State of Jharkhand and the State of the Jharkhand was required to take independent decision with regard to the husband of the petitioner. Rule 43(b) is not applicable in the facts and circumstances of the present case and in view of the fact that no departmental proceeding before the retirement was pending against the husband of the petitioner. There is no finding to that effect any loss has occurred to the State of Jharkhand and for Rule 43(b) finding of loss is condition precedent. In the supplementary counter affidavit in clear terms the State of Bihar has now disclosed that there is no MSD scam against the husband of the petitioner is pending. The case of the petitioner is fully covered in the light of the judgment rendered by Hon’ble Supreme Court in the case of ‘State of Jharkhand v. Jitendra Kumar Srivastav’12 SCC 210. Paragraph nos.11 and 16 of the said judgment are quoted hereinbelow: “11. From the reading of the aforesaid Rule 43(b) following position emerges: i) The State Government has the power to withhold or withdraw pension or any part of it when the pensioner is found to be guilty of grave misconduct either in a departmental proceeding or judicial proceeding. ii) This provision does not empower the State to invoke the said power while the departmental proceeding or judicial proceeding are pending. iii) The power of withholding leave encashment is not provided under this Rule to the State irrespective of the result of the above proceedings. iv) This power can be invoked only when the proceedings are concluded finding guilty and not before.” 16. The fact remains that there is an imprimatur to the legal principle that the right to receive pension is recognised as a right in “property”. Article 300 A of the Constitution of India reads as under: W.P.(S) No. 9919] “300 A. Persons not to be deprived of property save by authority of law.—No person shall be deprived of his property save by authority of law.” Once we proceed on that premise the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law which is the constitutional mandate enshrined in Article 300 A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced.” As a cumulative effect of the above discussion the impugned order cannot sustain in the eye of law and accordingly the impugned order dated 02.01.2004 is quashed. The petitioner shall be entitled for consequential benefits. The respondent State of Jharkhand is directed to release the entire pension and gratuity 10% of pension and gratuity so withheld within twelve weeks. The prayer of interest to the petitioner is not being considered by this Court in view of the fact that the petitioner has approached this Court in the year 2019 whereas the impugned order was passed in the year 2004. SI Sanjay Kumar Dwivedi J)

Welfare, education and day-to-day needs are of paramount importance while deciding custody of minor: High Court of Jammu and Kashmir

When the custody of a minor is being decided between two parents, aspects like the welfare, education and day-to-day needs of the child must be given paramount importance by the court. This basis on which custody should be granted was outlined in the judgement passed by a single member bench of the High Court of Jammu and Kashmir consisting of Justice Vinod Chatterji Koul in the case of Sameera Begum v Khalil Mohammad Hajam [CFA No. 08/2018] pronounced on 22nd June 2021. The appellant, Sameera Begum and respondent, Khalil Hajam got a divorce and a petition was filed before the District Court in Kupwara for the custody of their minor child under Guardian and Wards Act. The Distrcit judge ruled in favour of the child’s father who is the respondent in this case. As a result of this, an appeal was filed by the mother in the High Court of Jammu and Kashmir. The appellant contended that the trial court failed to consider the facts and circumstances of the case and that the minor’s best interests were ignored. It was also added that the minor should not be treated like some kind of property which is to be given custody. Upon considering and discussing the various facts and witness statements produced by both sides, the court noted that upon getting divorced by the respondent, the appellant remarried and had three children from her third marriage. It was also noted that while the minor was in custody of the appellant, it was not the appellant herself but the child’s maternal grandfather who was looking after her. The court came to the conclusion that the appellant was unable to devote as much time with the minor due to her second marriage and that the child was better off with her father than her maternal grandfather.

HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR CFA no.08 2018 Sameera Begum Khalil Mohammad Hajam Reserved on: 12.04.2021 Pronounced on: 22.06.2021 Through: Mr M. Altaf Khan Advocate Through: Mr H.A.Wani Advocate CORAM: HON’BLE MR JUSTICE VINOD CHATTERJI KOUL JUDGE 1. Impugned in this Civil First Appeal is judgement dated 16th March 2018 passed by District Judge Kupwara on a Petition under Guardian and Wards Act for custody of minor Nuzhat Jan bearing Guard Applcn no.18 titled Khalil Mohammad Hajam v. Sameera Begum on the grounds made mention of therein. 2. I have heard learned counsel for parties and considered the matter. 3. A petition under Guardian and Wards Act as is discernible from the record on the file was filed by respondent before the Trial Court in which he sought custody of his daughter as being biological father of minor Nuzhat Jan. Appellant resisted guardian application of respondent. CFA no.08 2018 4. Respondent in support of his application for guardianship produced and examined four witnesses besides himself. In rebuttal appellant produced and examined three witnesses besides herself. And by impugned judgement allowed application of respondent. 5. It is contention of learned counsel for appellant that impugned judgement has been passed against the facts and circumstances of the case. It is also contended that Trial Court has considered rights of parties without considering intervening the minor her thoughts her ideas and wishes as if minor is some sort of property which is to be given in custody. It is also averred that welfare of the child which has to be of paramount consideration is to be taken note of by the court but in the present case the Trial Court has not considered the fact that the welfare of minor will be in the custody of appellant and not that of respondent. 6. When impugned judgement is analyzed on the edifice of above submission of learned counsel it becomes unequivocal from the record as also from perusal of impugned judgement that the Trial Court has taken all facets of the matter into consideration and discussed elaborately all facts and circumstances of the case including the statement of witnesses. It also comes to fore that present appellant had been divorced by respondent and she has remarried and even she has three issues from her second marriage inasmuch as it was not appellant looking after the minor but it was maternal grandfather of minor who was looking after the minor. In such circumstances it cannot be heard the Trial Court has not considered the facts and circumstances of the 3 CFA no.08 2018 case as also evidence on record in its right perspective. The Trial Court has rightly said that education and day to day needs of minor is of paramount importance which can be fulfilled by respondent more particularly when her motherhas remarried and is living with her second husband. The Trial Court has also correctly said that minor can only inherit property of her father and not that of her grandfather. And it is only after taking into consideration these important facets of the matter that Trial Court has passed impugned judgement which is lucid luculent and elaborate and does not warrant any interference and as a corollary thereof instant Appeal is liable to be dismissed. 7. For the reasons discussed above the instant Appeal is dismissed with connected CM(s). Interim direction if any shall stand vacated. 8. Trial Court record along with copy of this judgement be sent down. Vinod Chatterji Koul) Judge Ajaz Ahmad PS Whether the order is reportable: Yes No.

Property can be identified either by boundary or by any other specific description is well established: Chhattisgarh High Court

In the case where it is evident that the land has been identified by boundaries by the Commissioner in a demarcation held in presence of the parties then there is no reason for upholding the dispute regarding the ownership. A single-judge bench comprising of Justice Sanjay K. Agrawal adjudicating in the matter of Vinay Kumar v. State of Chhatisgarh (SECOND APPEAL No.251 of 2007) dealt with an issue whether to grant relief to the appellant or not, In the present case, the second appeal is preferred by Defendant seeking “Whether   the   lower   appellate   Court   was justified   in   reversing   the   well-reasoned judgment and decree dated 28­12­2006 passed by   the   1st  Civil   Judge   Class­,   Janjgir Champa   in   Civil   Suit   No.211­A/2003 and granting relief of permanent injunction against the appellant/defendant?” The plaintiff filed a suit that he is the title and possession holder of the suit land was he purchased from original holder   Nathan Singh by registered sale deed dated 6.9.1961 in which his name is also mutated and ultimately after the change, khasra number became 3820/10   and through which he approaches his remaining land. It is in the case of the plaintiff that defendant No.1 started creating a nuisance and started construction on the land for which suit was filed seeking permanent injunction restraining defendant   No.1   from interfering with his possession. The defendant in his written statement denied the averments of the plaintiff and stated that he has purchased the suit land bearing Khasra No.3820/9 area 0.06 decimal from Nathan Singh by registered sale deed dated 15.5.1980 and he owns his land and making construction on his own land. Therefore, the plaintiff is not entitled to a permanent injunction. During the pendency of the suit, the trial court appointed Revenue   Commissioner to ascertain whether the suit land is part of Khasra No.3820/10 or it is part of Khasra No.3820/9, Revenue   Commissioner to ascertain whether the suit land is part of Khasra No.3820/10 or it is part of Khasra No.3820/9. The trial court after looking into the evidence passed a judgment and dismissed the suit by the plaintiff. The plaintiff preferred the first appeal and granted decree in favor of the plaintiff against which the defendant filed the present (second) appeal. Defendant submitted that the first appellate   Court is absolutely unjustified in granting decree for permanent injunction in favor of the plaintiff ignoring the Commissioner’s report in which the Commissioner has clearly indicated that it is the   defendant who has the said land and there is no objection to report of the Commissioner,   therefore,   the first appellate   Court ought to have accepted the report of the Commissioner. He would further submit that it is only a suit for permanent injunction in which title could not have been looked into by the first appellate Court.  The Respondent submitted that the impugned judgment and decree of the first appellate Court and submit that written statement is not verified in accordance with Order 6 Rule 4 of the CPC and defendant­Vinay Kumar has even not entered into the witness box to examine himself,   therefore,   the defendant did not have opportunity to cross­examine the plaintiff, as such, adverse inference against the defendant has to be drawn. It was also submitted that the evidence of the   Commissioner and other evidence on record,   inevitable conclusion would be the plaintiff is in possession of the suit land and decree for a permanent injunction has rightly been granted in favor of the plaintiff,   as such,   the second appeal deserves to be dismissed. The court after hearing all the submissions of both the parties stated that The suit land was earlier held by Nathan Singh, he sold the suit land bearing Khasra No.3820 area 0.10 decimal by registered sale deed dated   6.9.1961to   the plaintiff showing no boundaries of land sold to the plaintiff and thereafter it was renumbered as Khasra No.3820/10, whereas he also sold the land bearing Khasra No.3820/9 area 0.06 decimal to defendant No.1­Vinay Kumar showing boundaries in the sale deed.   When defendant   No.1   started raising construction on his land, the plaintiff disputed his raising of construction by saying that the suit land belongs to him and defendant   No.1   is not competent to raise construction, which led to the filing of suit for permanent injunction simpliciter stating inter­alia that the suit land in which construction is being made is owned by him and therefore, defendant No.1 be restrained from making construction on the suit land.

32 years R o. Kera Road Janjgir Tahsil Janjgir 1. Ganpati S o Ram Ratan aged about 50 years R o Janjgir Tah. Janjgir Distt.­Janjgir­Champa2. State of Chhattisgarh Through:­ Collector Janjgir­ 1. This second appeal preferred by defendant No.1 was “Whether the lower appellate Court was justified in reversing the well reasoned by the 1st Civil Judge Class­I Janjgir­ Champa in Civil Suit No.211­A 2003 and granting relief of permanent injunction For the sake of convenience the parties would and nomenclature given in the suit before the 2. The plaintiff filed a suit that he is title and possession holder of the suit land bearing Khasra which he has purchased from original holder Nathan Singh by registered sale deed dated 6.9.1961 and he is in possession of his land and making construction on his own land. Therefore the 4. During the pendency of the suit the trial Court appointed Revenue Commissioner to ascertain whether part of Khasra No.3820 9 in which the Commissioner 5. The trial Court upon appreciation of oral and documentary evidence available on record by its judgment and decree dated 28.12.2006 dismissed the plaintiff against which defendant No.1 preferred this second appeal under Section 100 of the CPC 6. Mr.Sourabh Sharma learned counsel for the appellant defendant No.1 would submit that the first appellate Court is absolutely unjustified in the plaintiff ignoring the Commissioner s report in is the defendant who is in possession of the said land and there is no objection to report of the Commissioner therefore the first appellate Court ought to have accepted the report of the not have been looked into by the first appellate appellate Court to grant decree in favour of the possession of the suit land. It is only the as such the judgment and decree of the first 7. On the other hand Mr.Somnath Verma learned counsel for respondent No.1 plaintiff would support the impugned judgment and decree of the first appellate Court and submit that written statement is not and defendant­Vinay Kumar has even not entered into witness box to examine himself therefore the defendant did not have opportunity to cross­examine the plaintiff as such adverse inference against the defendant has to be drawn. He would reply upon the Bhai C. Patel alias Bachu Bhai Patel v. Harihar Behara and another1 and S. Kesari Hanuman Goud v taking the evidence of the Commissioner and other evidence on record inevitable conclusion would be 1 AIR 1999 SC 1341 212 SCC 64 decree for permanent injunction has rightly been granted in favour of the plaintiff as such the 8. I have heard learned counsel for the parties and considered their rival submissions made hereinabove and also went through the records with utmost 9. The suit land was earlier held by Nathan Singh he decimal by registered sale deed dated 6.9.1961 Ex.P­1) to the plaintiff showing no boundaries of land sold to the plaintiff and thereafter it was the land bearing Khasra No.3820 9 area 0.06 decimal to defendant No.1­Vinay Kumar showing boundaries in the sale deed. When defendant No.1 started raising bearing A B C and D as shown in map appended with plaint belongs to him and defendant No.1 is not inter­alia that the suit land in which construction is being made is owned by him and therefore on the suit land. Defendant No.1 after entering appearance disputed the same by holding that it is therefore the plaintiff is not entitled for to identification of the land directed for defendant vide order dated 11.12.98 which demarcation report was submitted by revenue officer examined as Court witness No.2. The Commissioner in his report has clearly reported that defendant has Khasra No.3820 10 area 0.10 acre total area 0.16 acre but in the spot out of two khasra numbers only held that the defendant s land bearing Khasra No.3820 9 area 0.06 acre is available on the spot By virtue of Order 26 Rule 10(2) of the CPC the evidence in the suit and shall form part of the subjected to lengthy cross­examination by the plaintiff but nothing could be extracted to hold that the plaintiff s land is also available in the 0.06 acre is available on the spot in which he is making construction as such from perusal of the Commissioner s report it is quite vivid that in the spot defendant No.1 was making construction on his land and he is in possession of the said land as such defendant No.1 was making construction on his own land being in possession of the suit land and of Balkrishna Datariya Galande v. Balkrishna Rambharose Gupta and another3 in which the Supreme Court has clearly held that in a suit filed under the date of suit is a must for grant of permanent injunction as such the first appellate court failed into error in reversing the judgment and decree of 3SCC Online SC 135 There is one more reason for not upholding the The Supreme Court in the matter of Subhaga and any other specific description is well established Here the attempt had been to identify the suit property with reference to the boundaries and the Commissioner has identified that property with In that view of the matter the defendant s his report is binding to the parties as such the plaintiff has failed to establish that he is in possession of the suit land and on his land Commissioner s report and sale deed filed by is in possession of his own land bearing Khasra 45 SCC 466 No.3820 9 area 0.06 decimal and he was making from sale deedas such the first appellate Court fell in grave legal error in reversing the judgment and decree of the trial Court as such the judgments cited by learned counsel for respondent No.1 plaintiff are distinguishable to the facts of Consequently the judgment and decree of the the trial Court is hereby restored meaning thereby The second appeal is allowed to the extent indicated hereinabove leaving the parties to bear Sd

Where a tenant repudiates the title of the landlord, the protection from eviction under Delhi Rent Control Act cannot be given to him: High Court of Delhi

A tenant can be given protection under Delhi Rent Control Act from eviction only where the jurial relationship of tenant and landlord is not disputed. A perusal of Section 14 of the Act, which gives protection to a tenant against eviction, clearly shows that this protection is available only to the person who is undisputedly a tenant and does not claim himself to be the owner of the premises. The moment a person refuses the title of the landlord and claims title in himself he ceases to be a tenant in the eyes of law and the protection of Delhi Rent Control Act is not available to him. These were stated by High Court of Delhi consisting, Justice Amit Bansal in the case of Indra Kumari (deceased) vs. Bimla Rani (deceased) [CM(M) 964/2019] on 25.01.2022. The facts of the case are that the demised premises were let out by the deceased landlady, Lt. Smt. Indira Kumari by way of rent deed in favour of Sh. Manmohan Singh Sarna, the deceased husband of Lt. Smt. Bimla Rani. After the death of Sh. Manmohan Singh Sarna in 1995, the tenancy devolved upon Lt. Smt. Bimla Rani and other legal heirs of Sh. Manmohan Singh Sarna. Since rent in respect of the demised premises was not paid by the tenant to the landlady with effect from July, 1995, a legal notice was served by the landlady upon the legal heirs of deceased Sh. Manmohan Singh Sarna. The said notice was duly replied wherein the factum of tenancy was admitted. On 3rd September, 1997 the deceased landlady filed eviction petitions before the Rent Controller under Section 14 (1) (a) of the DRC Act against the legal heirs of Sh. Manmohan Singh Sarna.  The Counsel for the petitioners submitted that the landlady had entered into an agreement to sell in respect of the demised premises and therefore, there was no relationship of landlord and tenant between the parties. It was further contended that in 1998, the deceased landlady filed a criminal complaint against the tenants and chargesheet in respect thereof has been filed before the competent Court. In the said criminal proceedings, the police also filed report of the FSL which shows that the signature of deceased landlady has been forged on the agreement to sell and other documents relied upon by the tenants. The Counsel for the respondent submitted that the tenants purchased the demised premises from the deceased landlady by their predecessor Lt. Sh. Manmohan Singh Sarna vide agreement to sell and all the ingredients of Section 14 (1) (a) of the DRC Act have been proved by the landlord and that the respondent is entitled to recovery of arrears of rent from July, 1995 till date of the judgment of the Rent Controller as also of future rent till the date of eviction the tenants from the demised premises. The High Court of Delhi held that a tenant has been given protection under Delhi Rent Control Act from eviction only where the jurial relationship of tenant and landlord was not disputed and the tenant claims himself to be the tenant and not the owner. A perusal of Section 14, which gives protection to a tenant against eviction, clearly shows that this protection is available only to the person who is undisputedly a tenant and does not claim himself to be the owner of the premises. The moment a person refuses the title of the landlord and claims title in himself he ceases to be a tenant in the eyes of law and the protection of Delhi Rent Control Act is not available to him. The landlord can recover possession only if the case falls within the ambit of Section 14 of DRC Act. Where a tenant repudiates the title of the landlord and does not recognize him as landlord or as an owner of the premises, the protection from eviction under Delhi Rent Control Act is not available to him. In view of the above, the Court observed that that the benefit under Section 14(2) of the DRC Act cannot be given to the tenants in this case and there was no infirmity in the impugned judgment passed by the Tribunal that requires interference by this Court in exercise of its powers under Article 227 of the Constitution of India. Therefore, the petitions were dismissed.

IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment Reserved on : 14th January 2022 Judgment Delivered on : 25th January 2022 CM(M) 964 2019 & CM No.28977 2019INDIRA KUMARI(DECEASED) THR LR Petitioner Through: Mr. K. Sultan Singh Senior Advocate with Mr. Sunil Kumar Advocate BIMLA RANITHR LRS & ORS Respondents Through: Mr. R.S. Sahni Advocate CM(M) 965 2019 & CM No.28991 2019INDIRA KUMARITHR LRS Petitioner Through: Mr. K. Sultan Singh Senior Advocate with Mr. Sunil Kumar Advocate BIMLA RANI(DECEASED) THR LRS & ORS Respondents Through: Mr. R.S. Sahni Advocate HON BLE MR. JUSTICE AMIT BANSAL AMIT BANSAL J. VIA VIDEO CONFERENCING] The present petitions under Article 227 of the Constitution of India impugn the judgment dated 2nd February 2019 passed by the Rent Control Tribunal South East Saket Courts New Delhi in CM(M) 964 2019 & CM(M) 965 2019 RCT ARCT Nos. 3 2018 and 4 2018 whereby the appeals filed on behalf of the respondents against the judgments dated 23rd December 2017 passed by the Rent Controller South Saket Courts New Delhihave been allowed. Notice was issued in the present petitions on 3rd July 2019. Vide the judgments dated 23rd December 2017 the Rent Controller had allowed the eviction petitions filed on behalf of the petitioner hereinafter ‘landlord’) under Section 14(1) of the Delhi Rent Control Act 1958and had further observed that the benefit under Section 14(2) of the DRC Act cannot be given to the tenants in these cases. The said judgments of the Rent Controller were challenged by the tenants by way of appeals before the Tribunal to the limited extent of the denial of benefit of Section 14of the DRC Act to the tenants and the said appeals have been allowed by the impugned judgment. CM(M) 964 2019 is in respect of the mezzanine floor and CM(M) 965 2019 is in respect of the ground floor of the property bearing No.HS 8 Kailash Market Kailash Colony New Delhi 964 2019 & CM(M) 965 2019 6.1 The demised premises were let out by the deceased landlady Lt. Smt. Indira Kumari by way of rent deed dated 7th October 1968 in favour of Sh. Manmohan Singh Sarna the deceased husband of Lt. Smt. Bimla Rani at a rent of Rs.100 per month. 6.2 After the death of Sh. Manmohan Singh Sarna in 1995 the tenancy devolved upon Lt. Smt. Bimla Rani and other legal heirs of Sh. Manmohan Singh Sarna. 6.3 Since rent in respect of the demised premises was not paid by the tenant to the landlady with effect from July 1995 a legal notice dated 29th January 1996 was served by the landlady upon the legal heirs of deceased Sh. Manmohan Singh Sarna. The said notice was duly replied vide reply dated 19th March 1996 wherein the factum of tenancy was admitted. 6.4 On 3rd September 1997 the deceased landlady filed eviction petitions before the Rent Controller under Section 14(a) of the DRC Act against the legal heirs of Sh. Manmohan Singh Sarna. 6.5 The said eviction petitions were contested by the tenants by filing written statements to the petitions wherein defence was taken on behalf of the tenants that the landlady had entered into an agreement to sell in respect of the demised premises and therefore there was no relationship of landlord and tenant between the parties. In 1998 the deceased landlady filed a criminal complaint being FIR no. 38 98 against the tenants and chargesheet in respect thereof has been filed before the competent Court. In the said criminal proceedings the police also filed report of the FSL which shows that the signature of deceased landlady has been forged on the agreement to sell and other documents relied upon by the tenants. CM(M) 964 2019 & CM(M) 965 2019 6.7 The tenants also filed a suit for specific performance which has been adjourned sine die at the request of the tenants. 6.8 The Rent Controller vide judgments dated 23rd December 2017 allowed the eviction petitions filed on behalf of the landlord under Section 14(1)of the DRC Act holding that: Smt. Indira Kumari was the owner of the property and after her demise her legal heir Sh. Ajit Singh became the owner of the demised premises and relationship of landlord and tenant stands proved in terms of the rent agreement dated 7th October 1968. ii) Rent due was not paid from July 1995 till the date of filing of iii) Demand notice was duly served by the landlord upon the the petitions. iv) The tenants neither paid nor tendered the arrears of rent within two months from the date of service of the demand notice. Based on the above it was observed that all the ingredients of Section 14 (a) of the DRC Act have been proved by the landlord and that the landlord is entitled to recovery of arrears of rent from July 1995 till date of the judgment of the Rent Controller as also future rent till the date of eviction the tenants from the demised premises with tenants being entitled to set off the rent already deposited in the court from the arrears of rent accrued till the date of passing of the aforesaid judgment. The Rent Controller denied the benefit under Section 14(2) of the DRC Act to the tenants by holding observing that the tenants did not approach the Court with clean hands and the tenants claimed that the demised premises had been purchased by them from the deceased landlady CM(M) 964 2019 & CM(M) 965 2019 by their predecessor Lt. Sh. Manmohan Singh Sarna vide agreement to sell GPA and affidavit dated 1st March 1988 but the aforesaid documents have been found to be forged and fabricated as per FSL Report dated 1st February To arrive at the aforesaid conclusion the Rent Controller relied upon the following judgments: S. Makhan Singh V. Smt. Amarjeet Bali 154 DLT 211 confirmed in judgment Naeem Ahmad Vs. Yashpal Malhotra through LRs and Anr. 2012 SCC OnLine Del 1189 ii) V. Dhanapal Chettiar Vs. Yesodai Ammal4 SCC 214 iii) Kurella Naga Druva Vudya Bhaskara Rao Vs. Galla Jani Kamma 2008) 11 SCALE 160 and iv) Abdulla Bin Ali Vs. Galappa2 SCC 54. Accordingly eviction order was passed against the tenants. The aforesaid judgments of the Rent Controller were challenged by the tenants by way of filing appeals before the Tribunal only to the extent of the Rent Controller not giving benefit under Section 14(2) of the DRC Act to the tenants. In the impugned judgment dated 2nd February 2019 the judgments relied upon by the landlord before the Rent Controller were distinguished by the Tribunal by observing as under: “10. I have gone through the case law cited by the learned Rent Controller in the impugned order. In my view the said case law pertains to a different situation and the present proceedings fall beyond the same. In all those cases broadly speaking the circumstances were issued notice of termination of tenancy in reply whereto the tenant denied the jural relationship of tenancy and or set up claim of ownership CM(M) 964 2019 & CM(M) 965 2019 and thereafter when the landlord filed civil suit for recovery of possession of the property the tenant was held not entitled to set up a plea of protection under the rent control laws. It is in that backdrop the Hon’ble Supreme Court of India and Hon’ble High Courts took a view that having denied the relationship of tenancy the suit defendant acquired a status of trespasser and was not allowed to approbate and reprobate. In the present case that is not the situation. 11. The judicial precedents cited by the learned Rent Controller in the impugned order would have been applicable if after filing of the written statement of the present appellants in which they denied the relationship of tenancy the present respondent had withdrawn the eviction petition and filed a civil suit for recovery of possession. It is in such suit that the present appellants would not have been able to claim protection under Delhi Rent Control It was further observed by the Tribunal thatallegations with regard to the agreement to sell and attendant documents being forged is yet to stand the test of trial and the trial before the Criminal Court is still pending merely because the tenants got their suit for specific performance adjourned sine die it cannot be assumed that the tenants wanted to conceal the truth as by proceeding with the suit they did not want to prejudice their case with the criminal prosecution. In view of the above the appeals filed by the tenants were allowed and impugned judgments passed by the Rent Controller were set aside. 13. Senior counsel appearing on behalf of the landlord relies upon the findings in the judgments passed by the Rent Controller and submits that there was no basis for the Tribunal to reverse the said findings arrived at by the Rent Controller. He contends that once the case set up by the tenant in the eviction proceedings is that he is not the tenant and is a purchaser of the CM(M) 964 2019 & CM(M) 965 2019 demised premises the benefit under Section 14(2) of the DRC Act cannot be given to him as the said protection is only in respect of bona fide tenants. 14. Besides the judgments relied upon in the judgments passed by the Rent Controller reliance is also placed on behalf of the landlord on the following judgment in : S. Makhan Singhii) Vijayan Vs. Harinder Kaur 230DLT 45 15. On the other hand counsel appearing on behalf of the tenants supports the findings in the impugned judgment that the judgments relied upon by the landlord as well as by the Rent Controller are not applicable in the facts of the present case. He has made the following submissions: In view of the stand taken by the tenants in the written statement before the Rent Controller the remedy of the landlord would have been to file a civil suit for possession and had such a civil suit been filed the tenants were precluded from taking a defence under Section ii) Once an eviction petition has been allowed under Section 14(1)(a) of the DRC Act benefit of Section 14(2) of the DRC Act has to be given 50 of the DRC Act. to the tenant. 16. After hearing counsels for the parties the only issue to be decided in the present petitions is whether the benefit of Section 14(2) of the DRC Act ought to be given to the tenants in the facts of the present case. In this regard I proceed to deal with the judgments relied upon by the Rent Controller while passing the judgments dated 23rd December 2017. In Abdulla Bin Ali it was held by the Supreme Court that when the defendants denied the title of the plaintiff and the tenancy the civil CM(M) 964 2019 & CM(M) 965 2019 suit filed on behalf of the plaintiff landlord was maintainable before the civil court and the plaintiff landlord could not be relegated to the revenue court. Paragraphs 6 and 7 of the said judgment are relevant and are set out as “6. In our opinion the High Court was not quite correct in observing that the suit was filed by the plaintiffs appellants on the basis of relationship of landlord and tenant. Indeed when the defendants denied the title of the plaintiffs and the tenancy the plaintiffs filed the present suit treating them to be trespassers and the suit is not on the basis of the relationship of landlord and tenant between the parties. It is no doubt true that the plaintiffs had alleged that Defendant 2 was a tenant but on the denial of the tenancy and the title of the plaintiffs appellants they filed a suit treating the defendant to be a trespasser and a suit against a trespasser would lie only in the civil court and not in the Revenue Court. 7. We are therefore of the considered opinion that on the allegations made in the plaint the suit was cognizable by the civil court and that the High Court has erred in law in non suiting the plaintiffs appellants on the ground that the civil court had no In V. Dhanapal Chettiar the question before the Supreme Court was whether in order to get an order of eviction against the tenant under the rent control laws a notice was required to be given under Section 106 of the Transfer of Property Act 1882. The Constitution Bench came to the conclusion that it is not obligatory to issue a notice under Section 106 of the Transfer of Property Act 1882 to initiate proceedings for eviction under the State rent control laws. In Kurella Naga Druva while relying upon the judgment in Abdulla Bin Ali the Supreme Court observed that where the CM(M) 964 2019 & CM(M) 965 2019 defendant denies the title of the plaintiff the only remedy of the plaintiff was to file a civil suit to obtain possession from the trespasser. In S. Makhan Singh a Single Judge of this Court observed that once a tenant denies the title of landlord then by virtue of Section 111(g) of the Transfer of Property Act 1882 the relationship of landlord and tenant comes to an end and therefore the remedy of the landlord is to file a civil suit for possession. The observation of the Single Judge as set out in paragraph 5 of the judgment is reproduced below: “5. A tenant has been given protection under Delhi Rent Control Act from eviction only where the jurial relationship of tenant and landlord was not disputed and the tenant claims himself to be the tenant and not the owner. A perusal of Section 14 which gives protection to a tenant against eviction clearly shows that this protection is available only to the person who is undisputedly a tenant and does not claim himself to be the owner of the premises. The moment a person refuses the title of the landlord and claims title in himself he ceases to be a tenant in the eyes of law and the protection of Delhi Rent Control Act is not available to him. Section 111of Transfer of Property Act provides that a lease of immovable properties come to an end by forfeiture in case of lessee renouncing his character as such by setting up a title in a third person or claiming title in himself. Thus once a lease stands forfeited by operation of law the person in occupation of the premises cannot take benefit of the legal tenancy. This provision under Section 111is based on public policy and the principle of estoppel. A person who takes premises on rent from landlord is estopped from challenging his title or right to let out the premises. If he does so he does at his own peril and law does not recognize such a person as legal tenant in the premises. A lease may come to an end by termination of lease by or by efflux of time. Where the rent is below Rs. 3 500 a landlord cannot recover possession from tenant whose term of lease comes to an end or whose tenancy is terminated by a notice because such a tenant is a protected tenant. The landlord can recover possession only if the case falls within the ambit of CM(M) 964 2019 & CM(M) 965 2019 Section 14 of DRC Act. Where a tenant repudiates the title of the landlord and does not recognize him as landlord or as a owner of the premises the protection from eviction under Delhi Rent Control Act is not available to him. Where the tenant does not recognize anyone as landlord or owner and claims ownership in himself he cannot seek protection of Delhi Rent Control Act against the true landlord or owner. The Trial Court therefore rightly held that the petitioner was not entitled to protection under Section 50 of Delhi Rent Control Act.” In the case of Naeem Ahmad the issue before a Division Bench of this Court was whether a civil court would have jurisdiction in view of the stand taken by the tenant denying landlord tenant relationship. In the said case the landlord had filed a civil suit for recovery of possession on the ground of tenant being a trespasser in view of the stand taken by the tenant denying the landlord tenant relationship in its reply to the demand notice issued by the landlord. After analysing the judgments in S. Makhan SinghV. Dhanapal ChettiarKurella Naga Druvaand Abdulla Bin Alithe Division Bench came to the conclusion that the suit was maintainable before the civil court and was not barred under the provisions of Section 50(4) of the DRC Act. The observations of the Division Bench as contained in paragraph 12 of the judgment is reproduced “12. As aforesaid in Kurella’s case and Abdulla Bin Ali’s casewhen the tenants deny the title of the landlord and the tenancy the suit filed for recovery of possession is not on the basis of the relationship of landlord and tenant between the parties and would lie only in the civil suit and not otherwise. In the present case also it is observed that in response to the legal notice the respondent no.1 denied the relationship of landlord and tenant and denied that the appellant had let out the premises in suit to the respondent no.1. Consequently the respondent no.1 had repudiated and renounced the relationship of landlord and CM(M) 964 2019 & CM(M) 965 2019 tenant and set up his own title in the property. Therefore the appellant had filed the suit for recovery of possession in the civil court since the occupation of the respondent no.1 had become unauthorized and that of a trespasser.” In addition the landlord also placed reliance on judgment of the Single Judge of this Court in Vijayan of the DRC Act would not be available to a tenant against whom eviction order has been passed under Section 14(1)of the DRC Act. In fact none of the aforesaid judgments deal with the aspect of protection under Section 14(2) of the DRC Act. The common thread running through the said judgments is that when the title of landlord is disputed by the tenant and or relationship of the landlord tenant is denied landlord would be entitled to file a civil suit against the tenant and in the said civil suit the tenant would not be permitted to raise the ground that the said civil suit is barred under the provisions of Section 50 of the DRC Act. In fact in all the aforesaid decisions the landlord had filed a civil suit for possession. Therefore the Rent Controller wrongly applied the aforesaid judgments to deny the benefit of Section 14(2) of the DRC Act to the tenants. The Tribunal has correctly appreciated the ratio of the aforesaid judgments and has rightly observed in paragraphs 10 and 11 of the CM(M) 964 2019 & CM(M) 965 2019 impugned judgment that the aforesaid judicial precedents would not come to the aid of the landlord. In the present case Rent Controller passed an eviction order against the tenants on the basis that there exists a landlord tenant relationship between the parties. Once having done so the statutory benefit under Section 14(2) of the DRC Act had to be mandatorily provided to the tenants as the provisions of Section 14(2) of the DRC Act are mandatory and not discretionary in nature. It has been correctly observed in the impugned judgment that in view of the denial of the landlord tenant relationship by the tenants in their written statement before the Rent Controller the remedy of the landlord was to file a civil suit for possession and in the said civil suit the tenants would be precluded from invoking provisions of Section 50 of the DRC Act. In view of the above there is no infirmity in the impugned judgment passed by the Tribunal that requires interference by this Court in exercise of its powers under Article 227 of the Constitution of India. 27. The petitions are dismissed. JANUARY25 2022 Sakshi R. at dk AMIT BANSAL J. CM(M) 964 2019 & CM(M) 965 2019

Biratunga S.C.S. Ltd. V/s Sangram Keshari Pati and Ors

The principles of natural justice are violated by not providing an opportunity of hearing, even in the absence of any statutory provision to that effect” [Case Brief] Biratunga S.C.S. Ltd. V/s Sangram Keshari Pati and Ors Case name: Biratunga S.C.S. Ltd. V/s Sangram Keshari Pati and Ors Case number: AIR 2006 Ori 97 Court: Orissa High Court Bench: Hon’ble Justice S Roy, Hon’ble Justice M Das Decided on: 25 January, 2006 Relevant Act/Sections: Consumer Protection Act, 1986 ➢ The opp. party no. 1, as the complainant, alleged that he opened a Savings Bank Account with the petitioner. It was alleged that he deposited a sum of Rs. 65, 163/- in the said Account on 1.3.2002 which was duly entered into in his Pass Book. The opp. party no. 1 went to the Petitioner Bank and wanted to withdraw a sum of Rs. 20,000/- from his S. B. Account but was told by the Branch Manager of the petitioner Bank (opp. party No. 2) that due to shortage of funds, the said amount cannot be paid by the bank on that day and he should come afterwards.The opp. party No. 1 alleged that he again went to withdraw the said amount when the Branch Manager-opp. party No. 2 asked him to hand over the Pass Book along with the deposit voucher dated 1.3.2002 under which an amount of Rs. 65,163/- was deposited by the opp. party No. 1.The opp. party No. 1 was not permitted to withdraw the said amount for which he approached the State Commission claiming compensation on account of deficiency in service and damages for suffering, harassment and mental agony.A notice was issued to the petitioner fixing the date of appearance and filing of show cause. The petitioner engaged an advocate and entered appearance through him in the said case. It is alleged by the petitioner that though all material documents were supplied by him to his Advocate for drafting and filing of the show cause/counter affidavit, the said Advocate did not file the same nor remained present when the case was taken up for final hearing and order under annexure 1 was passed. He filed a recall plea which was dismissed.PROCEDURAL HISTORY-a) The petitioner in the present writ application has prayed for quashing the orders dated 29.7.2005 and 2.12.2005 under Annexures-1 and 2 respectively passed by the State Consumer Disputes Redressal Commission, Orissa, Cuttack. b) After receiving the copy of order under Annexure 1, he filed Misc. Case No. 1115 of 2005 in the C.D. Case No. 56 of 2004 before the State Commission making a prayer to recall the said order. c) The said Misc. Case was dismissed by order-dated 2.12.2005 by the State Commission holding that the State Commission has no power to review/recall its own order.➢ ISSUE BEFORE THE COURT: 1. Does the State Commission have the power to review or recall its order? 2. Is the writ application maintainable as there is an efficacious alternative remedy available to the petitioner? 3. Can the court exercise jurisdiction under Article 226 of the Constitution by directing the State Commission to rehear the case due to violation of Principle of Natural Justice?➢ RATIO OF THE COURT:1. Counsel for opp. party 1 submits that the writ application is not maintainable as there is an efficacious alternative remedy available to the petitioner by filing an appeal against the final order under Section 19 of the Act, before the National Commission. 2. He further submits that the order under annexure 2 through which the application of the petitioner was rejected has been rightly passed as the State Commission under the C.P. Act has no power either to set aside an order passed ex parte or to recall/ review its own order. 3. Counsel for the petitioner contends that the petitioner is a Co-operative Society formed under the Orissa Co-operative Societies Act, 1962 and is a Mini Bank sponsored by the United Puri Nimapara Central Cooperative Bank Ltd., opp. party no. 1 could not have filed the complaint before the State Commission as Orissa Co-operative Societies Act provides for adjudication of such disputes before the prescribed authorities under the said Act. 4. He further contends that as there is violation of PNJ, Court have jurisdiction under Art 226 and relied on the case of Executive Officer where it was held that where the principles of natural justice are violated by not providing an opportunity of hearing, even in the absence of any statutory provision to that effect, the jurisdiction of the High Court under Articles 226 and 227 of the Constitution can be invoked and availability of alternative remedy cannot be a bar to the maintainability of the writ application. Section 3 of the C.P, Act specifically provides that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law, court viewed that even though the dispute raised by the opp. party no. 1 might have been raised under the provisions of the Orissa Co-operative Societies Act, 1962, but that does not bar it to raise a similar dispute before the Forums under the C.P. Act when the allegation relates to deficiency in banking service on the part of the petitioner which is admittedly a Mini Bank as “banking service” is a service as defined under the C.P. Act and the opp. party No. 1 having hired the said banking service provided by the writ petitioner for a consideration, he squarely comes under the definition of a “consumer” as defined in Section 2(d) of the C.P. Act. Since allegation of lack of jurisdiction of State Commission and violation of principles of natural justice have been made, the writ application cannot be thrown out on the ground that alternative remedy by way of appeal is available.It was found that it is admitted by the petitioner that notice was duly served on it by the State Commission and the further admission of the petitioner that it appeared in the said case by engaging an Advocate, there was no scope for the court to hold that the principles of natural justice had been violated in any manner. The court observed that the State Commission has not committed any error in entertaining the said complaint and deciding the same on merit. We further hold that the contention of the petitioner that the order dated 29.7.2005 has been passed without jurisdiction is unacceptable. Court relied on the judgement of the Supreme court in the case of Jyotsana Arvind Kumar Shah and others which said that the order of the State Commission setting aside the ex parte order cannot be sustained. ➢ DECISION HELD BY COURT: Court held no error in order dismissing the case of petitioner. Court found no merit in the writ and hence it was dismissed.

Biratunga S.C.S. Ltd.Vs Sangram Keshari Pati High Court Of Orissa Writ PetitionNo. 15960 Of 2005 Judgment Date: 25 01 2006 Bench : Citation : HON BLE MR. JUSTICE S.B. ROYHON BLE MR. JUSTICE M.M. DAS } AIR 2006 Ori 97 2006OLR336 M.M. DAS J. 1.) The petitioner in the present writ application has prayed for quashing the orders dated 29.7.2005 and 2.12.2005 under Annexures 1 and 2 respectively passed by the State Consumer Disputes Redressal Commission Orissa Cuttack in a consumer dispute case bearing C.D. Case No. 504. The opp. party no. 1 filed C.D. Case No. 504 before the State Commission under Section 17 of the Consumer Protection Act 1986claiming an amount of Rs. 65 417 lying in deposit in his saving account with interest thereon at the rate of 18% per annum and a further compensation of Rs. 20 00 000 for undergoing suffering harassment and mental agony against the present writ petitioner and the opp. party no. 2. The opp party no. 1 as complainant alleged that he opened a Savings Bank Account bearing S.B. Account No. 16.1 with the petitioner which is a Mini Bank sponsored by the United Puri Nimapara Central Co operative Bank Limited. The said S.B. account was opened on 12.8 1995. The opp. party no. 1 alleged that he deposited a sum of Rs. 65 163 in the said Account on 1.3.2002 which was duly entered into in his Pass Book. On such deposit total amount available in the said S. B. Account became Rs. 65 217 . On 11.5.200.2 his father made a further deposit of Rs. 200 in the said S. B. Account but the pass Book could not be up dated as when the said amount was deposited his father did not carry the Pass Book with him. On 14.5.2004 the opp. party no. 1 went to the petitioner Bank and wanted to withdraw a sum of Rs. 20 000 from his S. B. Account. But he was told by the Branch Manager of the petitioner Bankthat due to shortage of funds the said amount cannot be paid by the bank on that day and he should come afterwards. The opp. party No. 1 alleged that he again went on 17.5.2004 to withdraw the said amount when the Branch Manager opp. party No. 2 asked him to hand over the Pass Book along with the deposit voucher dated 1.3.2002 under which an amount of Rs. 65 163 was deposited by the opp. party No. 1. The opp. Party No. 1 was not permitted to withdraw the said amount for which he approached the State Commission in the above C.D. Case No 56 of 2004 claiming compensation on account of deficiency in service and a damages for suffering harassment and mental agony. 2.) The petitioner has stated in the writ application that notice in the said C.D. Case No. 504 was issued to it fixing the date of appearance and filing of show cause as 12.7.2004. The petitioner engaged an advocate and entered appearance through him in the said case. It is alleged by the petitioner that though all material documents were supplied by him to his Advocate for drafting and filing of the show cause counter affidavit the said Advocate did not file the same nor remained present when the case was taken up for final hearing on 29.7.2005. After conclusion of hearing the State Commission passed the impugned order dated 29.7.2005 under Annexure 1 directing the opp. parties in the said case i.e. the petitioner and the opp. Party No. 2 in the present writ application to pay a total sum of Rs. 65 217 from the S. B. Account No. 161 of the opp. party no. 1 and a further sum of Rs. 5 000 as compensation for the mental agony suffered by the opp. party No. 1. A copy of the said order dated 29.7.2005 was duly communicated to the writ petitioner by the State Commission under its covering letter dated 20.8.2005. The petitioner claims that it came to know regarding the said order only after receiving a copy of the same from the State Commission and thereafter filed Misc. Case No. 11105 in the C.D. Case No. 504 before the State Commission making a prayer to recall the said order dated 29.7.2005 and to allow it to file its counter affidavit and afford an opportunity of hearing The said Misc. Case was dismissed by order dated 2.12.2005 by the State Commission holding that the State Commission has no power to review recall its own 3.) Mr. S. N. Sahoo learned Counsel for the petitioner contends that considering the fact that the petitioner is a Co operative Society formed under the Orissa Co operative Societies Act 1962 and is a Mini Bank sponsored by the United Puri Nimapara Central Cooperative Bank Ltd. opp. party no. 1 could not have filed the complaint before the State Commission as Orissa Co operative Societies Act provides for adjudication of such disputes before the prescribed authorities under the said Act. His further contention was that the petitioner having not been heard in the matter the impugned order dated 29.7.2005 directing payment of the amount of Rs. 65 217 from the Pass Book of the opp. party No. 1 and further a sum of Rs. 5 000 as compensation is in violation of the principles of natural justice and as such this Court can exercise jurisdiction under Article 226 of the Constitution by directing the State Commission to rehear the case after quashing the orders under Annexures 1 and 2. In support of his contention he places reliance on a decision of this Court in the case of Executive officer Sri Baladev Jew Bije Keonjhar v. Smt. Anapurna Jena and Anr. 2005CLR 729 and a decision in the case of Managing Director District Co operative Milk union Ltd v. Presideing officer State Consummer Disputes Redressal Commission and Ors. AIR 2004 Jharkhand 101. 4.) Mr. R.K. Mohapatra learned Counsel appearing for the opp. party No. 1 who was the complainant in C.D. Case No. 504 on the other hand submits that the writ application is not maintainable as there is an efficacious alternative remedy available to the petitioner by filing an appeal against the final order dated 29.7.2005 under Section 19 of the Act before the National Commission. With regard to the order dated 2.12.2005 under Annexure 2 by which the State Commission rejected the application of the petitioner for recalling the order dated 29.7.2005 Mr. Mohapatra submits that the said order has been rightly passed as the State Commission under the C.P. Act has no power either to set aside an order passed ex parte or to recall review its own order. He places reliance in the case of Jyosana Arvind Kumar shah and Ors. v. Bombay Hospital Trust IIICRJ 1and the order dated 25.4.2005 passed in W.P.(C) No. 25205by a Division Bench of this Court. 5.) In the case of Executive Officerthe Consumer Dispute was filed before the District Consumer Disputes Redressal Forum Keonjhar with a prayer to direct the Executive Officer of Sri Baladev Jew Bije Keonjhar and the Commissioner of Endowments Orissa Bhubaneswar to execute sale deed of certain properties of the deity as per the order passed by the Commissioner of Endowments in an Original Application. The District Forum decided the case in favour of the complainant and directed Execution of the sale deed. The said order was challenged in appeal before the State Commission who by its order dated 11.12.2001 dismissed the said appeal. A contention was raised in the said case that the writ application is not maintainable in view of the availability of alternative remedy. This Court while holding that the deity being a perpetual minor and remained unrepresented when the matter was taken up for hearing the State Commission should have appointed a Court guardian to protect the interest of the deity and that having not been done there was violation of principles of natural justice on account of which the order of the State Commission was unsustainable held that where the principles of natural justice are violated by not providing an opportunity of hearing even in the absence of any statutory provision to that effect the jurisdiction of the High Court under Articles 226 and 227 of the Constitution can be invoked and availability of alternative remedy cannot be a bar to the maintainability of the writ application. With regard to the contention of the petitioner that even though there is a provision of appeal under Section 19 of the C.P. Act the writ application is maintainable as the allegation made by the petitioner is one of want of jurisdiction on the part of the State Commission in entertaining the consumer dispute and further the impugned order is passed in violation of the principles of natural justice the learned Counsel relies on a decision in the case of Managing Director District Co operative Milk Union Ltd. while dealing with a similar contention held that though a revision under the C.P. Act is provided against the order passed in an appealby the State Commission before the National Commission the writ application cannot be held to be not maintainable on account of availability of alternative remedy relying on the decision in the case of L. Chandra Kumar v. Union of India Mr. Mohapatra learned Counsel for the opp. party No. 1 placing reliance on the order passed by the Division Bench of this Court in W.P.No. 25205 contends that in similar situation a Division Bench of this Court in the said writ petition has held that since a statutory appeal is available to the petitioner the writ application is misconceived in law. 7.) Since Section 3 of the C.P Act specifically provides that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force we are of the view that even though the dispute raised by the opp. party no. 1 might have been raised under the provisions of the Orissa Co operative Societies Act 1962 but that does not bar the opp. party No. 1 to raise a similar dispute before the Forums under the C.P. Act more so when the allegation relates to deficiency in banking service on the part of the petitioner which is admittedly a Mini Bank. It is trite to hold that "banking service" is a service as defined under the C.P. Act and the opp. party No. 1 having hired the said banking service provided by the writ petitioner for a consideration he squarely comes under the definition of a "consumer" as defined in Section 2of the C.P. Act. 8.) Considering the above submissions we find that thought a statutory appeal is provided under Section 19 of the C.P. Act against the order dated 29.7.2005 under Annexure 1 nevertheless since allegation of lack of jurisdiction of State Commission and violation of principles of natural justice have been made the writ application cannot be thrown out on the ground that alternative remedy by way of appeal is available to the petitioner. However on examining the merits of the case as we have already stated that the consumer dispute raised by the opp. party No. 1 before the State Commission claiming compensation for deficiency in banking service is maintainable we are of the view that the State Commission has not committed any error in entertaining the said complaint and deciding the same on merit. We further hold that the contention of the petitioner that the order dated 29.7.2005 has been passed without jurisdiction is unacceptable. 9.) With regard to the violation of principles of natural justice as we have found that it is admitted by the petitioner that notice was duly served on it by the State Commission directing it to appear and file counter show cause on 12.7.2004 and the further admission of the petitioner that it appeared in the said case by engaging an Advocate there is no scope for us to hold that the principles of natural justice have been violated in any manner. Coming to the impugned order dated 2.12.2005 under Annexure 2 by which the Misc. Case filed by the petitioner Bank for recalling the order dated 29.7.2005 was dismissed we find that the Supreme Court in the case of Jyotsana Arvind Kumar Shah and otherswhile dealing with a similar question has held as follows: If the law does not permit the respondent to move the application for setting aside the ex parte order which appears to be the position the order of the State Commission setting aside the ex parte order cannot be sustained. In view of the above position of law laid down by the Apex Court it is no more res integra that there is no provision under the C.P. Act to set aside an ex parte judgment or to recall review the judgment passed in a C.D. Case by the District Forum or the State Commission and hence no error can be attributed to the impugned order dated 2.12.2005 dismissing the Misc. Case of the petitioner Bank filed for recalling the order dated 29.07.2005. In the result we find no merit in this wirt application which is accordingly dismissed.

The Court in exceptional cases can exercise power under Section 482 CrPC for quashing cases to prevent misuse of provisions on settled parameters: High Court Of Jharkhand

There was no such legal requirement imposed on a Magistrate for passing detailed orders while issuing summons. The process issued to the accused cannot be quashed merely on the ground that the Magistrate had not passed a speaking order. Such an opinion was held by The Hon’ble High Court of Jharkhand before The Hon’ble Mr. Justice Sanjay Kumar Dwivedi in the matter of Binoy Kumar Jha @ Binay Kr. Jha and Ors Vs. The State of Jharkhand [Cr.M.P. No. 565 of 2021]. The facts of the case were associated with a petition to quash an order passed by the S.D.J.M Madhupur in relation to Pathrol P.S. Case No.56/2019 dated 14.09.2020. In the FIR it was alleged that a drainage was built by the accused. The complainant Godawari Devi did the same, aut all the accused person began to abuse the complainant by dragging her by her hair, tore her dress, forcefully opened her mouth and poured the stool into her mouth with the statement that the complainant was a witch. Further, the accused people a silver chain and silver payal and they stated that the complainant was a witch who killed children and cattle.  The counsel representing the petitioner submitted that the police after investigation did not send the petitioner for trial. The final report in favour of the petitioners showing their name in column 12 of the final report was submitted which showed that the offences were non-cognizable. It was stated that the Magistrate took cognizance against the petitioners.The petitioner’s counsel also submitted that the learned Magistrate had power to differ from the opinion of the Investigating Officer, but he was required to give reasons for the same. The Public Prosecutor for the state stated that the Magistrate have the power to proceed against the petitioners if there was a prima facie case.  The Hon’ble Court after going through all the submissions and facts held that “It is well settled that no detailed order is required for passing any order for summoning the accused but in a case where Final Report has already been submitted in favour of the accused and the Magistrate is intending to proceed on a complaint petition, he is required to make reasons of differing with the Final Report, which has not been done in the case in hand… Accordingly, the order taking cognizance dated 14.09.2020 passed by the learned S.D.J.M., Madhupur in connection with Pathrol P.S. Case No.56/2019 is hereby quashed… This criminal miscellaneous petition is, therefore, allowed and disposed of.”

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 5621 1. Binoy Kumar Jha @ Binay Kr. Jha aged 56 years S o Nitya Nand Jha R o Village House No.87 Ward No.02 P.O. & P.S. Pathrol Dist 2. Vikash Kumar Jha @ Bikash Kr. Jha aged 25 years S o Bameshwar Nath Jha R o Village Lakhibazaar Jamini P.O. & P.S. Pathrol Dist 3. Bameshwar Nath Jha aged 50 years S o Harendra Nath Jha R o House No.86 Ward No.02 near durga mandir P.O. & P.S. Pathrol District Deoghar 4. Nalini Kumar Jha @ Nalini Jha aged 44 years S o Shivnath Kumar Jha R o village Lakhi Bazaar P.O. & P.S. Pathrol District Deoghar 5. Ashutosh Kumar Jha @ Asutosh Kr. Jha aged 42 years S o Shivnath Kumar Jha R o House No.86 Ward No.02 P.O. & P.S. Pathrol District 6. Rajeev Kumar Jha @ Rajiv Kr. Jha aged 35 years S o Shivnath Kumar Jha R o House No.86 Ward No.02 P.O. & P.S. Pathrol District Shivnath Jha aged 67 years S o Harendra Nath Jha House No.86 Ward No.02 P.O. & P.S. Pathrol District Deoghar 8. Abhay Kumar Jha aged 29 years Binoy Kumar Jha R o Ward No.02 P.O. & P.S. Pathrol District Deoghar 9. Ajay Kumar Jha aged 32 years S o Binoy Kumar Jha R o village Jamuni P.O. & P.S. Pathrol District Deoghar … Petitioners The State of Jharkhand … Opposite Party Versus CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI For the Petitioners For the Opposite Party State Mr. Nitish Bhardwaj Advocate Mr. Shailendra Kumar Tiwari Spl.P.P. Heard Mr. Nitish Bhardwaj learned counsel for the petitioners and Mr. Shailendra Kumar Tiwari learned Spl.P.P. appearing for the opposite party State. This petition has been taken 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 The petitioners have filed this petition for quashing the order taking cognizance dated 14.09.2020 passed by the learned S.D.J.M. Madhupur in connection with Pathrol P.S. Case No.56 2019. The prosecution story in the FIR is that the complaint petition being Complaint Case No.163 2019 was filed by the complainant namely Godawari Devi which was sent under Section 156(3) Cr.P.C. for institution of FIR and accordingly the present FIR has been lodged alleging therein that on 14.05.2019 all the accused persons were making drainage and the complainant was also doing the same and all the accused gathered there and started abusing the complainant and for that complainant s son informed the O c of Pathrol Police Station. On 14.05.2019 at 04:00 p.m. accused namely Abhay Kumar Jha clutched the complainant by her hair and dragged her to the road where all the accused persons torn her dress and Abhay Kumar Jha forcefully opened her mouth and pour the stool into her mouth with statement that the complainant is a witch. It was further alleged that all the accused snatched a silver chain of 5 grams worth Rs.4 000 and a payal of silver of 8 grams worth Rs.6 500 and also alleged that the complainant is a witch who use to kill children and cattle Learned counsel for the petitioners submits that the matter was investigated by the police and after investigation the police has not sent up the petitioner for trial and submitted final report in favour of the petitioners showing their name in column 12 of the final report bearing Final Report No.20 2019 dated 31.12.2019 showing that offences non cognizable. After submission of final report in favour of the petitioners the learned Magistrate has taken cognizance against the petitioners under Sections 323 504 34 of IPC vide order dated 14.09.2020 although the Investigating Officer after investigation not sent up for trial to these petitioners. He further submits that the learned Magistrate has taken cognizance against the petitioners in a mechanical manner and without assigning any reason as to why he is differing from the opinion of the Investigating Officer who after investigation not sent up these petitioners for trial. He also submits that the learned Magistrate has power to differ from the opinion of the Investigating Officer but in that condition he has to assign reason as to why he is differing from the opinion of the Investigating Officer. Learned Spl.P.P. appearing on behalf of the opposite party State submits that there is no illegality in the impugned order. He further submits that it is well within the domain of the Magistrate to proceed further if he comes to a conclusion that there is prima facie case to proceed against the In view of the above facts the Court has examined the F.I.R as well as complaint petition. The police after investigation the police has not sent up the petitioners for trial and submitted the final report in favour of the In the judgment rendered in the case of Prathvi Raj Chauhan v Union of India and Others reported in4 SCC 727 it has been held that the proceeding can be quashed under section 482 of the Code and it is held in paragraph no.12 of the said judgment which is quoted herein below : “12. The Court can in exceptional cases exercise power under Section 482 CrPC for quashing the cases to prevent misuse of provisions on settled parameters as already observed while deciding the review petitions. The legal position is clear and no argument to the contrary has The law is well settled with regard to material under section 202 Cr.P.C which has been considered by the Hon ble Supreme Court in the case of Swaraj Thackeray v. State of Jharkhand and Ors reported in 2008) CriLJ 3780. Paragraph no.7 of the said judgment is quoted herein 10. Subsequently the Hon ble Supreme Court has held in the case of Dy Chief Controller of Imports and Exports v. Roshanlal Agarwal and Others reported in4 SCC 139 at paragraph no.9 which is quoted “7. From the impugned order I find that the learned Magistrate after considering the allegations made in the complaint petition and the materials adduced during enquiry under Section 202 Cr.P.C found prima facie case made out for commission of the offence under section 153 A 153 B and 504 of the Indian Penal Code against the petitioner Swaraj Thackeray @ Raj Thakeray and thereafter directed the complainant to file requisite for issuance of process. At the stage of taking cognizance a detailed order discussing the evidence in detail is not required to be passed by the Magistrate. The order taking cognizance but should show that the Magistrate has applied his mind before taking cognizance and from the impugned order it appears that the Magistrate after applying his mind has taken cognizance and therefore it cannot be said that the impugned order suffers from non application of mind.” “9. In determining the question whether any process is to be issued or not what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused the Magistrate is not required to record reasons. This question was considered recently in U.P. Pollution Control Board v. Mohan Meakins Ltd. and after noticing the law laid down in Kanti Bhadra Shah v. State of W.B. it was held as follows:5 SCC 749 in which the Hon’ble Supreme Court has held that to set criminal proceeding in motion is a serious matter which requires to be looked into minutely. Accordingly the order taking cognizance dated 14.09.2020 passed by the learned S.D.J.M. Madhupur in connection with Pathrol P.S. Case No.56 2019 is hereby quashed This criminal miscellaneous petition is therefore allowed and Ajay (Sanjay Kumar Dwivedi J

The injuries inflicted without premeditation in a sudden provocation to fall under Section 304 IPC: Supreme Court

In a case where the cause of provocation was sudden, without premeditation, the appellant was liable to be convicted for an offence under Section 304 Part I. The Court, in the matter of Pardeshiram vs. State of M.P. (Now Chhattisgarh) [CRIMINAL APPEAL NO. 1730 OF 2015], concluded from the facts and circumstances that the situation would fall under Exception 4 of Section 300 IPC. The judgement was given by Justice Hemant Gupta and Justice S. Ravindra Bhat. The appellant was convicted under Section 302 of the IPC for causing death in a land dispute. The Senior Council for the appellant argued that the offence was committed without premeditation in a sudden fight in a heat of passion and, thus, falls within Exception 4 of Section 300 IPC. The appellant and the deceased were members of the same family and the dispute arose on the question of raising a wall. The tool with which the appellant was alleged to hit the deceased with is a common tool used by agriculturalists which makes it evident that injuries were caused in the heat of passion as is likely to cause death. Therefore, it will be culpable homicide not amounting to murder falling within the first part of Section 304 IPC. The judgement stated that, “The accused is an agriculturist, and the Shovel is a part of an agricultural tool that is possessed by agriculturists. The accused was attributed with the first blow with the Shovel followed a hit by a stone on the head of the deceased which was picked up from the street.” It further stated, “The accused and the deceased were from the same family. The cause of provocation was sudden, without premeditation. We find that, in the facts and circumstances of the case, it is a case falling under Exception 4 of Section 300 IPC. The injuries were inflicted without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken advantage or acted cruelly or unusually. In this view of the matter, we find that the appellant is liable to be convicted for an offence under Section 304 Part I.” The Court kept in the view the 18 years of custody undergone by the appellant and taking in consideration the relationship between the accused and the deceased, was inclined to allow the appeal partly. The appellant was thus convicted under Section 304 Part I of the IPC and he was sentenced to the sentence already undergone. He was released hence

IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1730 OF 2015 STATE OF M.P.son of the deceased. As per the statement on the date of the incident the deceased returned from his field after delivering fertiliser on his Bullock Cart. The deceased was to take another round to deliver fertiliser but in the meantime the accused quarrelled with the deceased on the issue of construction of the wall. The dispute was pacified by Jagdish. However after Jagdish left the accused climbed over the Bullock Cart of Kartik Ram and assaulted him with a spade. The accused hit the deceased with a stone on his head and as a result the deceased died The prosecution examined Arjun son of the deceased Sukhbati Baiwife of the deceased and Budhraman acquaintance of the deceased. PW 3 turned hostile. The prose cution also examined Shankar Lalthe nephew of the de ceased and the accused. He also turned hostile. The postmortem of the dead body was conducted by Dr G.P. Chandrakaris the Investigating Officer. Mr. Sanjay R. Hegde learned senior counsel for the appellant has argued that the offence was committed without premeditation in the sudden fight in the heat of passion and thus falls within Ex ception 4 of Section 300 IPC. The appellant and the deceased are members of the family and that the dispute occurred on the ques tion of raising the wall. The appellant is alleged to have hit the de ceased with the Shovel a common agricultural tool and later picked up a stone to hit the deceased. Such injuries were caused in the heat of passion as is likely to cause death. Therefore it will be culpable homicide not amounting to murder falling within the first part of Section 304 IPC. Such an argument was raised before the High Court as well but the High Court did not agree with the The accused is an agriculturist and the Shovel is a part of an agri cultural tool that is possessed by agriculturists. The accused was attributed with the first blow with the Shovel followed a hit by a stone on the head of the deceased which was picked up from the street. The accused and the deceased were from the same family. The cause of provocation was sudden without premeditation. We find that in the facts and circumstances of the case it is a case falling under Exception 4 of Section 300 IPC. The injuries were inflicted without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken ad vantage or acted cruelly or unusually. In this view of the matter we find that the appellant is liable to be convicted for an offence under Section 304 Part I. The appellant has served more than 18years of his jail sentence Therefore keeping in view the period of custody undergone the relationship between the accused and the deceased and the back ground in which the injuries were caused we are inclined to allow this appeal partly. We thus convict the appellant for an offence un der Section 304 Part I IPC and sentence him to the sentence al ready undergone. He is to be released forthwith if not wanted in any other case S. RAVINDRA BHAT NEW DELHI FEBRUARY 09 2021

A person who took a loan, is bound to repay the principal amount as well as the amount of accrued interest: High Court of Uttarakhand.

Where a person has taken a loan, he is bound to repay the principal amount and the accrued interest. And where such a person is ordered by the court to repay the same, and if such person does not comply to it, then he does not deserve any sympathy or indulgence of this Court. A single Judge bench comprising Hon’ble Justice Manoj Kumar Tiwari, in the matter of Bhupal Ram Vs. District Magistrate/Collector, Bageshwar and Others. (Writ Petition (M/S) No. 1378 of 2021) dealt with an issue where the petitioner filed a writ petition seeking a writ, order, or direction in the nature of certiorari and call for the record of the case and quash the impugned Recovery notice issued by respondent no. 2. Also, issue a writ, order or direction in the nature of mandamus directing the respondent to permit the petitioner to deposit the due loan amount in the installment. In the present case, the counsel for the petitioner submitted that the petitioner was ready and willing to pay the entire outstanding loan amount to the Bank. However, he would need some time for the purpose.  However, the counsel for the respondent submitted that the petitioner took a loan of ₹4.00 lakh in the year 2013 for commercial purposes. Due to consistent default, the respondents had to proceed with the recovery of the outstanding loan amount. The council for the respondent also stated that the petitioner had not complied with the order as he had not deposited the amount as indicated in the order of this Court. The petitioner had only deposited a small amount and he never turned up to deposit the rest of the amount. The court observed- “Since petitioner has not deposited the amount in terms of the order passed by coordinate Bench of this Court, therefore, he does not deserve any sympathy or indulgence of this Court”.  Thereby the writ petition failed and was dismissed.

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

Insolvency and Bankruptcy Code is a special enactment for resolution of a financial debt: Supreme Court of India

There was no substance to the second ground urged by the appellant regarding the maintainability of the application filed by the respondent financial creditor under Section 7 of the IB Code on the ground of being barred by limitation and that the code is a special enactment for the resolution of financial debt and it is in the larger public interest that financial debts are recovered and the debts of corporate person are restructured to revive the failing corporate entity. This extensive judgment was passed by the Hon’ble Supreme Court of India in the matter of LAXMI PAT SURANA v. UNION BANK OF INDIA & ANR. [CIVIL APPEAL NO. 2734 OF 2020] headed by Justice A.M. Khanwilkar. In the concerned petition, there were two central issues: It was held by the adjudicating authority that “the action had been initiated against the Corporate Debtor, being coextensively liable to repay the debt of the Principal Borrower and having failed to do so despite the recall notice, became Corporate Debtor and thus liable to be proceeded with under Section 7 of the Code.” This court stated that “The term “financial creditor” has been defined in Section 5(7) read with expression “Creditor” in Section 3(10) of the Code to mean a person to whom a financial debt is owed and includes a   person   to   whom   such   debt   has   been   legally   assigned   or transferred to.”

Two central issues arise for our determination in this i) Whether an action under Section 7 of the Insolvency and Bankruptcy Code 20161 can be corporate person and an additional amount of Rs.2 45 00 000 ­ Rupees two crore forty­five lakhs only) respectively. The loan Metals Limited5 of which the appellant is also a Promoter Director had offered guarantee to the two loan accounts of the Principal Borrower. The stated loan accounts were declared NPA on 30.1.2010. The Financial Creditor then well as the Corporate Debtor demanding repayment of outstanding amount of Rs.12 35 11 548 ­ (Ins) No. 77 of 2020. The NCLAT vide impugned judgment and order dated 19.3.2020 dismissed the Authority on the two preliminary objections raised by the The appellant feeling aggrieved has approached this Court by way of present appeal reiterating the two preliminary objections referred to above. This Court vide order dated 28.7.2020 issued notice in this appeal recording the principal to maintain the proceedings under the Insolvency and Issue notice confined to the aforesaid aspect Steps be taken within three days from today. If the 10 for short “NCLAT” There shall be interim stay on the operation of person who had borrowed money or a corporate person who gives guarantee regarding repayment of money borrowed by of firms and or individuals in terms of Part III of the Code has amended to clarify that partnership firms and proprietorship differentiation made in the report of the Insolvency Law Committee February 2020 which reads thus: ­ debtors falling within Part III of the Code personal proprietorship firms and other individuals. Though section 2(f) of the Code now includes the words “proprietorship firms” this term has not been defined in 2.2 Proprietorship firms are businesses that are owned managed and controlled by one person. They are the in unlimited liability of the owner. Legally a Due to this proprietorships are usually not defined in statutes. Though some statutes define proprietorships in services …”. Notably ‘proprietorship firms’ have also deals with the issue relating to Guarantors. Paragraph 7.3 The Committee noted that while under a cannot be prevented solely on the ground that the creditor has an alternative relief against the principal borrower. Further as discussed above the creditor is and the surety. Therefore restricting a creditor from initiating CIRP against both the principal borrower and the surety would prejudice the right of the creditor provided under the contract of guarantee to proceed It is urged that any other view would inevitably result in indirectly enforcing the Code even against entities such as partnership firms and proprietorship firms and or individuals same. According to the appellant a corporate guarantee is one which is extended in respect of a loan given to a “corporate reinforced by the amendment Act 26 of 2018 on account of insertion of definition of “corporate guarantor” with effect from 6.6.2018 as can be discerned from the portion of report of Insolvency Law Committee dated 26.3.2018 which reads thus: ­ Section 60 of the Code requires that the Adjudicating Authority for the corporate debtor and personal guarantors should be the NCLT which has link between the insolvency resolution or bankruptcy processes of the corporate debtor and the personal processes of the corporate debtor and the corporate guarantor. It was decided that section 60 may be suitably amended to provide for the same NCLT to deal with the insolvency resolution or liquidation processes of the corporate debtor and its corporate guarantor. For this purpose the term “corporate maintained against a company or corporate person merely by the appellant that the date of default must be reckoned as 30.1.2010 on which date the loan accounts were declared as urged that Section 18 of the Limitation Act invoked by the Financial Creditor and which commended to the Adjudicating under the Code. It applies only to suits for recovery and in respect of property or right. The Insolvency and Bankruptcy 238A of the Code which has come into effect with effect from and claimants who had failed to invoke remedy in respect of to be applied to an action under Section 7 of the Code the the adjudicating authority in no way makes out the case for granting benefit under Section 18 of the Limitation Act. The factual narration in the subject application is that the date of as NPA and no other fact which is relevant for giving benefit Conductors Private Limited vs. Assam State Electricity Board & Ors.12 has been stated therein. In other words the application as filed. Further letters relied upon do not mention about the factum of acknowledgment of debt by the The said communications were sent without prejudice and communication dated 8.12.2018 therefore will be of no avail to the Financial Creditor. All other relied upon communications Debtor who is an independent legal entity. The so­called acknowledgment by the Principal Borrower therefore cannot bind the Corporate Debtor. Communications sent by the Principal Borrower after the original limitation period had expired in any case cannot be taken into account for invoking was not accompanied by application for condonation of delay 11. Reliance is placed by the appellant on the dictum of this Industries Private Limited & Anr. Limited & Anr.15 Vashdeo R. Bhojwani vs Abhyudaya Co­operative Bank Limited & Anr.16 and Sagar 12. The Financial Creditor has refuted the plea regarding predicated in Section 128 of the Indian Contract Act 1872 18 This legal position is well­established by now “debt” in Section 3(11) “financial creditor” in Section 5(7 any guarantee or indemnity for any money borrowed against of the appellant against payment of interest for which the Corporate Debtor stood guarantee or indemnity was also a Financial Creditor ­ respondent No. 1 could proceed under is to define a corporate guarantor in relation to a corporate of the application against a corporate guarantor is therefore limitation it is contended that this Court had issued limited in the order dated 28.7.2020. Hence the second objection of limitation need not be examined. It is then urged that in any case there is no substance even in this objection. Referring to after three years from the declaration of accounts as NPA because of the acknowledgment of debt including by the Corporate Debtor from time to time and lastly on 8.12.2018 whereby it admitted the initial loan granted by the Financial Borrower. The Adjudicating Authority as well as the NCLAT had justly taken due cognizance of the said admission to conclude that fresh period of limitation commenced because of such acknowledgment by the Corporate Debtor. Further the default committed by the Corporate Debtor is a continuing one. It is herein. The Code is a special enactment for resolution of a financial debt and it is in larger public interest that financial debts are recovered and the debts of corporate person are restructured to revive the failing corporate entity. Thus understood the process is not for recovery as such but for urged that there is no need to relegate the parties before the mixed question of fact and law as contended but on the facts the liability vide communication dated 8.12.2018 for which 14. We have heard Mr. Abhijit Sinha learned counsel for the provisioning for actions and proceedings relating to amongst others reorganisation and insolvency resolution of corporate persons in a time bound manner for maximisation of value of assets of such persons availability of credit and balance the Insolvency and Bankruptcy Board of India and for matters 16. Section 7 of the Code propounds the manner in which on behalf of the financial creditor as may be notified by the against a corporate debtor before the Adjudicating Authority 17. Section 7 is an enabling provision which permits the 18. The term “financial creditor” has been defined in Section a person to whom such debt has been legally assigned or has been defined in Section 5(8). Amongst other categories specified therein it could be a debt along with interest which is the guarantee or indemnity for any of the items referred to in Section 3(11) to mean a liability or obligation in respect of “a claim” which is due from any person and includes a financial debt and operational debt. The expression “claim” would certainly cover the right of the financial creditor to proceed been defined in Section 3(6) which means a right to payment whether or not such right is reduced to judgment fixed disputed undisputed legal equitable secured or unsecured. It lender to proceed against the principal guarantor itself if and when the principal borrower fails to discharge his obligation in respect of amount of debt. For the Section 128 of the Contract Act. As a consequence of such or a corporate debtor if it happens to be a corporate person within the meaning of Section 3(8) of the Code. For as aforesaid 20. A priori in the context of the provisions of the Code if the It may be useful to also advert to the generic provision contained in Section 3(37). It postulates that the words and expressions used and not defined in the Code but defined in enactments referred to therein shall have the meanings respectively assigned to them in those Acts. Drawing support from this provision it must follow that the lender would be a borrower may or may not be a corporate person but if a corporate person extends guarantee for the loan transaction would still be covered within the meaning of expression 22. Thus understood it is not possible to countenance the corporate person the financial creditor could not have invoked who had merely offered guarantee for such loan account. That debtor consequent to the default committed by the principal the Code despite law permitting initiation of CIRP against the corporate debtor if and when default is committed by the principal borrower. For the liability and obligation of the guarantor to pay the outstanding dues would get triggered 23. To get over this position much reliance was placed on Section 5(5A) of the Code which defines the expression “corporate guarantor” to mean a corporate person who is the surety in a contract of guarantee to a Corporate debtor. This the respondents is essentially in the context of a corporate debtor against whom CIRP is to be initiated in terms of the amended Section 60 of the Code which amendment is liquidation processes of the corporate debtor and its corporate which has territorial jurisdiction over the place where the mean that proceedings under Section 7 of the Code cannot be 24. Accepting the aforementioned argument of the appellant debtor” occurring in Section 7 of the Code which means a is wide enough to include liability of a corporate person on default committed by the latter. It would still be a “financial 25. Notably the expression “corporate guarantee” is not defined in the Code. Whereas expression “corporate guarantor” is secured by a person not being a corporate person from the expression “corporate debtor” occurring in Section 7 it would be inserted defining expression “corporate guarantor”). It was replace the expression “corporate debtor” by a suitable “claim” in Section 3(6) “debt” in Section 3(11) and “default” in Section 3(12). There is no indication to that effect in the 26. The expression “corporate debtor” is defined in Section 3(8 which applies to the Code as a whole. Whereas expression person other than corporate person. The liability of the for reorganisation and insolvency resolution of the corporate debtor who is not in a position to pay its debt and commits In law the status of the guarantor who is a corporate person metamorphoses into corporate debtor the moment principal borrower action under Section 7 of the Code had offered guarantee in respect of that transaction. Whereas the company being the guarantor instantly corporate person not to permit the appellant to canvas this ground in our opinion it is necessary to answer this ground as well in the interest of justice and also because it is as the case may be even if it is not expressly raised by the “7. It is seen from the evidence on record that not only the original borrower but also the Corporate again on 27.05.2015 and 08.12.2018 issued by the Bank clearly admitting the debt. We Corporate Debtor. It cannot be said that debt become due and payable. We hold that it is admission of debt and payable. In this case by virtue of guarantee in favour of the Bank the Corporate Debtor undertook borrower commit default and it is duty of the Corporate Debtor to clear the outstanding. His defence is that debt is yet to become due is not 31. After so observing the NCLT proceeded to advert to the decision in Gaurav Hargovindbhai Dave and distinguished the same on the ground that in that case the acknowledged the debt after the date of default which had present case however the principal borrower as well as the 30.01.2010 and lastly on 08.12.2018 which was the basis of filing of subject application under Section 7 of the Code on 32. Even the NCLAT noted this ground urged by the appellant “21. In the instant case the Corporate Debtor had duly executed the Letter of Guarantor dated 2.2.2007 17.2.2007 and 3.8.2008 for the Loan facilities Sanctioned by the Bank to M s had acknowledged its debt on 16.9.2010 3.3.2012 27.5.2015 24.10.2016 and executed by the Appellant Vide Page. No.196 197 140 198) and on 8.12.2018 respectively against the execution of the Letters of Guarantee. Significantly the Corporate Debtor in its of Guarantors Agreement dated 2.2.2007 17.2.2007 3.8.2008 in and by which the Corporate Debtor had agreed to pay Rs.12 05 00 000 ­ crore and interest on Finally in paragraph 30 of the impugned judgment the NCLAT Shah and Anr. vs. Union of India and Anr.20 and Gaurav “30. In the light of detailed qualitative and quantitative discussions aforesaid and also this Tribunal keeping in case in an integral fashion which float on the surface acknowledgment of ‘Debt’ on various dates like 2.2.07 Construction the Letters of Guarantee Acknowledged 16.9.10 3.3.12 27.5.15 24.10.16 executed by the Appellant and on 8.12.18 by the Surana Metals Ltd on 27.5.15 & 8.12.18 respectively. The object of on ‘Public Policy’. The application projected before the is well within limitation and not barred by Limitation Looking at from any angle the present Appeal sans Babulal Vardharji Gurjar vs. Veer Gurjar Aluminium the earlier decisions of this Court the Court summed up the “32. When Section 238­A of the Code is read with the above noted consistent decisions of this Court Sashidhar25 Jignesh Services23 Swiss Ribbons24 K Shah26 Vashdeo R. Bhojwani27 Gaurav Hargovindbhai Dave28 and Sagar Sharma29 respectively the following put the corporate debtor back on its feet and is not a d) that the period of limitation for an application governed by Article 137 of the Limitation Act and is creditor is default on the part of the corporate debtor that is to say that the right to apply under the Code non­payment by the corporate debtor when a debt has to the date of filing of the application the application would be time­barred save and except in those cases where on facts the delay in filing may be condoned and advert to the exposition in Jignesh Shah Ltd.30 in which “238­A. Limitation.—The provisions of Limitation Act 1963 shall as far as may be apply to the proceedings or appeals before Debts Recovery Appellate Tribunal as the case may 8. In para 7 of the said judgment the Report of the as follows: (supra). Suffice it to observe that this Court had not ruled out the application of Section 18 of the Limitation Act to the proceedings under the Code if the fact situation of the case so warrants. Considering that the purport of Section 238A of the Code as enacted is of fresh period of limitation in terms of Section 18 of the 36. Notably the provisions of Limitation Act have been made applicable. For Section 238A predicates that the provisions of Limitation Act shall as far as may be apply to the proceedings or appeals before the Adjudicating Authority the NCLAT the DRT or the Debt Recovery Appellate Tribunal as the case may be After enactment of Section 238A of the Code on 06.06.2018 under Section 5 of the Limitation Act. There is no reason to exclude the effect of Section 18 of the Limitation Act to the proceedings initiated under the Code. Section 18 of the application in respect of any property or right an right has been made in writing signed by the party person through whom he derives his title or liability a was signed but subject to the provisions of the Indian Evidence Act 1872 oral evidence of its avers that the time for payment delivery performance refusal to pay deliver perform or permit to enjoy or is 37. Ordinarily upon declaration of the loan account debt as the financial creditor to initiate action under Section 7 of the Code. However Section 7 comes into play when the corporate debtor commits “default”. Section 7 consciously uses the become due and payable and is not paid by the debtor or the corporate debtor as the case may be. In cases where the corporate person had offered guarantee in respect of loan transaction the right of the financial creditor to initiate action against such entity being a corporate debtor would get triggered the moment the principal borrower commits default due to non­payment of debt. Thus when the principal borrower and or the guarantor period of limitation due toacknowledgments it is not debtor) as the case may be acknowledge their liability to pay the debt. Such acknowledgment however must be before the expiration of the prescribed period of limitation including the fresh period of limitation due to acknowledgment of the debt 7 of the Code. Further the acknowledgment must be of a liability in respect of which the financial creditor can initiate adverted to the acknowledgments by the principal borrower as well as the corporate guarantor ­ corporate debtor after The fact that acknowledgment within the limitation period was only by the principal borrower and not the guarantor would not absolve the guarantor of its liability flowing from the letter of guarantee and memorandum of mortgage. The liability of the guarantor being coextensive with the principal borrower under the guarantee deed and memorandum of mortgage unless it financial creditor on 13.02.2019 in Part IV thereof it has been DEBT GRANTED AND DATE(S) OF The aforesaid credit facilities duly secured from time to time by the Corporate Guarantor being the Rs.9 60 00 000 ­ Rs.12 05 00 000 ­ Memorandum of Extension of Declaration of the Director of the Copies of all the aforesaid Documents are ‘F­1’ ‘F­2’ ‘F­3’ and ‘F­4’. In addition to the above the aforesaid Credit facility not only secured by of Title Deed being No. for the year in Mahal Land measuring about 50 Cottahs comprised in Touzi No.1298 in Dihi Panchanan Gram Division II together with Building and Structure standing thereon P.S. Maniktala being Municipal Premises No.17 Ultadanga Main Road Kolkata with an intent to create equitable Mortgage in favour of the Financial Creditor the immovable property as aforesaid duly extended by the Corporate Guarantor lastly on 25.08.2008 Creation of such charge filed with the Corporate Debtor in Form No.8 Under Section 125 127 137 of the Companies the Title Deed is annexed hereto and dated 19th January 2007 the Financial 2007 to the said Pantaloons Retail and the financial creditor during the Section 7 of the Code on 13.02.2019. The last such 12 BONFIELD LANE KOLKATA­700001 Asset Recovery Branch Kolkata 15 India Exchange Place SUB: Notice regarding initiation of We acknowledge the receipt of your Notice being No.ARB:KOL:198:18­19 dated 03.12.2018 issued under Section 4(1) of The Insolvency and Bankruptcy Code 2016 and are really surprised to note its contents. We deny each and every allegation contained therein Rs.9 45 00 000 ­ 1. No Term Loan was sanctioned by you to M s Mahaveer Construction 12 Bonfield Lane Kolkata for a sum of Rs.2 45 00 000 ­ as alleged by you in your above Mahaveer Construction of No.12 Bonfield Lane Kolkata­700001 under “rent securitization” i.e for the development of a commercial complex at Kharagpur on a government land on the basis of Construction has executed a power of attorney in your favour authorizing you to collect the future Ltd. and you have been collecting the rent from by the Ld. DRT­III Kolkata without any intimation to M s Mahaveer Construction. As such M s Mahaveer Construction is a lawful borrower and unconditionally accepted by you. We are not the 2. We have at the request of M s Mahaveer only in the form of a premises being No.17 Ultadanga Main Road Kolkata by way of creation of a paripassu charge with Syndicate Bank of which we are a Lessee only. It is a your loan against Mahaveer Construction in the Learned Debt Recovery Tribunal ­III at Kolkata is awaiting adjudication. We have not committed be termed as a defaulter far less to speak of You are therefore not authorized legally to initiate against M s Mahaveer Construction in the Kolkata attains finality you are under the provisions of law not authorized to further threaten us and or initiate any proceedings against us for recovery of loan granted to M s 5. The Insolvency and Bankruptcy Code 2016 proceeds to secure the benefits of all creditors dealing with the assets of the debtor in The before proceeding under The Insolvency and the securities for the benefit of all the creditors in SARFAESI Act and RDBA 1973 proceedings Thus the Bank has to choose before proceeding deal with the same as a secured creditor. If you you cannot proceed under The Insolvency and Bankruptcy Code 2016. O.A. and S.A. are the remedies. Per contra if the Bank chooses to offer Borrower Mahaveer Construction. Thus without any demand being made against from the Principal Borrower the issuance of deemed 7. The IBC cannot be made as a tool to recover debt. Issuance of the purported notice is nothing but a threat to recover debt. We are commercially solvent and the alleged debt is adjudication before the Learned Debt Recovery Tribunal ­III at Kolkata and therefore the debt is repay the loan granted to Mahaveer Construction under rent securitization. Thus the Bank cannot proceed under The Insolvency and Bankruptcy 8. There is no mis­match between the asset and valuable than liability. Thus venturing upon the 9. This letter is issued reserving our rights to add Under the circumstances it is most humbly Yours faithfully 12 BONFIELD LANE acknowledge the liability of M s. Mahaveer Construction principal borrower) and of corporate guarantee having been liability of the corporate guarantor is coextensive with that of the principal borrower and it gets paying the debt when it had become due and payable. The within the expiration of prescribed period of limitation to pay right to sue apply accrues as per Article 137 of the Limitation borrower or the corporate guarantor as the by the NCLT and affirmed by the NCLAT on the basis of the 41. The appellant was at pains to persuade us that the intention behind the communication dated 08.12.2018 sent to the financial creditor by the corporate guarantor guarantor corporate debtor had offered corporate guarantor whose liability is coextensive with that of the principal borrower and more so when it activates from the written acknowledgment of second ground urged by the appellant regarding the maintainability of the application filed by the respondent­ vide last communication dated 08.12.2018. Thus the application under Section 7 of the Code filed on 13.02.2019 is of the application for initiating CIRP by the financial creditor Bank) under Section 7 of the Code we dispose of this appeal 44. Accordingly this appeal is disposed of in the above terms with no order as to costs. Pending applications if any also

Settlement order passed with regard to the  suo motu settlement application filed – THE SECURITIES AND EXCHANGE BOARD OF INDIA

Settlement order passed with regard to the  suo motu settlement application filed – THE SECURITIES AND EXCHANGE BOARD OF INDIA Applicant Mrs. Amrita Prabhakar Deodhar filed a suo motu settlement application proposing to settle, without admitting or denying the findings of fact and conclusions of law, through a settlement order for the alleged violation of Regulation 10(5) of SEBI regulation,2011 and the proceedings for settlement were initiated under S.K. MOHANTY, ANANTA BARUA (Whole Time Member) in the  Settlement Application No. 6537 of 2021 The applicant was a promoter of APlAB Limited and was the individual holder of 24.35% share capital of the company along with a person acting in concert holding 18,75,639 equity shares representing 37.51% of the total share capital of the company. On  July 08, 2021, the applicant acquired 0.85%of equity shares of the total company and the aforesaid shareholding resulted in the increase of total holding from m 24.35% to 25.20% and it was a violation as prescribed under Regulation 3(1) read with Regulation 3(3) of SAST Regulations. In terms of  Regulation 10(1)(a)(i) of the SAST Regulations. The applicant before acquiring the share should have been informed at least four days before but the same was delayed six days and within the applicant was alleged to have violated Regulation 10(5) of the SAST Regulations. The high powered advisory authority considered the application and the settlement terms proposed by the applicant and settled upon the amount ₹3,31,500/- The authority passed the order under Section 15JB of the Securities and Exchange Board of India Act, 1992 and in terms of Regulations 23 read with Regulation 28 of the Settlement Regulations the order proposed the condition and direction for the applicant to follow hence the settlement is completed. Click here to read the order 

Appeal No. 45821 BEFORE THE APPELLATE AUTHORITY Under the Right to Information Act 2005) SECURITIES AND EXCHANGE BOARD OF INDIA Appeal No. 45821 Geeta Khattar CPIO SEBI Mumbai The appellant had filed an application dated November 24 2021 under the Right to Information Act 2005of the RTI Act for providing information in respect of query number 12 related to SEBI. The respondent by a letter dated December 22 2021 responded to the application filed by the appellant. The appellant filed an appeal dated December 24 2021 against the said response dated December 22 2021. I have carefully considered the application the response and the appeal and find that the matter can be decided based on the material available on record. 2. Ground of appeal The appellant has filed the appeal on the ground that the information provided was incomplete misleading or false. I note that the application was transferred under Section 6(3) of the RTI Act for providing information in respect of query number 12. In view of the same I am only dealing with the said query and the response provided thereto in this appeal. 3. Query number 12 The appellant vide query number 12 of her application dated November 24 2021 inter alia sought the GOI online portal details through which she could send case write to JSFM ASFM WGIA and SEBI Board Members. The respondent in response to the aforesaid query informed that the information sought is not available with SEBI. However the respondent informed that the name and designation of the present Members of SEBI Board are available on the SEBI website. The respondent also provided the link for accessing the same. 5. On consideration I find that the respondent has categorically stated that the requested information is not available with SEBI and I have no reason to disbelieve the same. In this context I note that the Hon’ble Appeal No. 45821 CIC in the matter of Sh. Pattipati Rama Murthy vs. CPIO SEBIheld: “… if it SEBI) does not have any such information in its possession the CPIO cannot obviously invent one for the benefit of the Appellant. There is simply no information to be given.” In view of these observations I find that the information sought by the appellant was not available with SEBI and therefore the respondent cannot be obliged to provide such nonavailable information. 6. Notwithstanding the above I note that the respondent has guided the appellant to access the details of the members of the SEBI Board. Accordingly I find that the query has been adequately addressed and no further intervention warranted at this stage. 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: January 20 2022 ANAND BAIWAR APPELLATE AUTHORITY UNDER THE RTI ACT SECURITIES AND EXCHANGE BOARD OF INDIA

During a vehicle search section, 50 NDPS Act is not necessary to be complied with: Supreme Court of India

The provisions laid down under section 50 NDPS Act are only required to be mandatorily followed in case of searching a person, On an occasion of a vehicle search, it is not necessary to comply with section 50 NDPS Act. Such an observation was made by the Hon’ble Supreme Court of India before Hon’ble Justice INDIRA BANERJEE & Hon’ble Justice J.K. MAHESHWARI In the matter of Kallu Khan vs State of Rajasthan [CRIMINAL APPEAL NO.  1605  OF 2021]. The facts of the case were that on  24.04.2011 when S.I. Pranveer Singh Station In­charge of Bhawani Mandi Police Station along with constables Preetam Singh, Sardar Singh, and Rajendra Prasad was on routine patrolling at around 6:05 a.m. from Sulia Chowki to Sunel and reached Jhokadia. While returning from Jhokadia to Bhawani Mandi, they saw the accused Kallu Khan riding an unnumbered motorcycle and coming from the opposite direction. On seeing the police patrolling the vehicle, Kallu Khan turned back and tried to run away. Suspecting his conduct, the police party apprehended and questioned him. In inquiry about his behavior, accused Kallu Khan did not give a satisfactory reply. On having doubt, S.I. Pranveer Singh ordered constable Preetam Singh when such witness was not available he obtained consent from   Constable Sardar Singh & Constable Rajendra Prasad and made them witness for the search of the vehicle. Upon such search 900gm of smack was found beneath the seat of his motorcycle.  The Hon’ble Supreme Court noted that the contraband was seized from the motorcycle, driven by the accused. Therefore, no question arises as to the ownership of the vehicle. Additionally, the Hon’ble Supreme Court observed that the seizure of the contraband (Smack) is proved on record and the same is not challenged by the accused. Thus, the Contraband in full need not be placed on record. Furthermore, the Hon’ble Supreme Court while referring to the case of Vijaysinh Chandubha Jadeja vs. The State of Gujarat (2011) 1 SCC 609 observed that “the arguments advanced by the appellant regarding non­compliance of Section 50 of NDPS Act is bereft of any merit because no recovery of contraband from the person of the accused has been made to which compliance of the provision of Section 50 NDPS Act has to follow mandatorily. In the present case, in the search of a motorcycle at a public place, the seizure of contraband was made, as revealed. Therefore, compliance of Section 50 does not attract in the present case.” Finally, the Hon’ble Supreme Court dismissed the instant appeal. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur The provisions laid down under section 50 NDPS Act are only required to be mandatorily followed in case of searching a person, On an occasion of a vehicle search, it is not necessary to comply with section 50 NDPS Act. Such an observation was made by the Hon’ble Supreme Court of India before Hon’ble Justice INDIRA BANERJEE & Hon’ble Justice J.K. MAHESHWARI In the matter of Kallu Khan vs State of Rajasthan [CRIMINAL APPEAL NO.  1605  OF 2021]. The facts of the case were that on  24.04.2011 when S.I. Pranveer Singh Station In­charge of Bhawani Mandi Police Station along with constables Preetam Singh, Sardar Singh, and Rajendra Prasad was on routine patrolling at around 6:05 a.m. from Sulia Chowki to Sunel and reached Jhokadia. While returning from Jhokadia to Bhawani Mandi, they saw the accused Kallu Khan riding an unnumbered motorcycle and coming from the opposite direction. On seeing the police patrolling the vehicle, Kallu Khan turned back and tried to run away. Suspecting his conduct, the police party apprehended and questioned him. In inquiry about his behavior, accused Kallu Khan did not give a satisfactory reply. On having doubt, S.I. Pranveer Singh ordered constable Preetam Singh when such witness was not available he obtained consent from   Constable Sardar Singh & Constable Rajendra Prasad and made them witness for the search of the vehicle. Upon such search 900gm of smack was found beneath the seat of his motorcycle.  The Hon’ble Supreme Court noted that the contraband was seized from the motorcycle, driven by the accused. Therefore, no question arises as to the ownership of the vehicle. Additionally, the Hon’ble Supreme Court observed that the seizure of the contraband (Smack) is proved on record and the same is not challenged by the accused. Thus, the Contraband in full need not be placed on record. Furthermore, the Hon’ble Supreme Court while referring to the case of Vijaysinh Chandubha Jadeja vs. The State of Gujarat (2011) 1 SCC 609 observed that “the arguments advanced by the appellant regarding non­compliance of Section 50 of NDPS Act is bereft of any merit because no recovery of contraband from the person of the accused has been made to which compliance of the provision of Section 50 NDPS Act has to follow mandatorily. In the present case, in the search of a motorcycle at a public place, the seizure of contraband was made, as revealed. Therefore, compliance of Section 50 does not attract in the present case.” Finally, the Hon’ble Supreme Court dismissed the instant appeal. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur The facts of the case were that on  24.04.2011 when S.I. Pranveer Singh Station In­charge of Bhawani Mandi Police Station along with constables Preetam Singh, Sardar Singh, and Rajendra Prasad was on routine patrolling at around 6:05 a.m. from Sulia Chowki to Sunel and reached Jhokadia. While returning from Jhokadia to Bhawani Mandi, they saw the accused Kallu Khan riding an unnumbered motorcycle and coming from the opposite direction. On seeing the police patrolling the vehicle, Kallu Khan turned back and tried to run away. Suspecting his conduct, the police party apprehended and questioned him. In inquiry about his behavior, accused Kallu Khan did not give a satisfactory reply. On having doubt, S.I. Pranveer Singh ordered constable Preetam Singh when such witness was not available he obtained consent from   Constable Sardar Singh & Constable Rajendra Prasad and made them witness for the search of the vehicle. Upon such search 900gm of smack was found beneath the seat of his motorcycle.  The Hon’ble Supreme Court noted that the contraband was seized from the motorcycle, driven by the accused. Therefore, no question arises as to the ownership of the vehicle. Additionally, the Hon’ble Supreme Court observed that the seizure of the contraband (Smack) is proved on record and the same is not challenged by the accused. Thus, the Contraband in full need not be placed on record. Furthermore, the Hon’ble Supreme Court while referring to the case of Vijaysinh Chandubha Jadeja vs. The State of Gujarat (2011) 1 SCC 609 observed that “the arguments advanced by the appellant regarding non­compliance of Section 50 of NDPS Act is bereft of any merit because no recovery of contraband from the person of the accused has been made to which compliance of the provision of Section 50 NDPS Act has to follow mandatorily. In the present case, in the search of a motorcycle at a public place, the seizure of contraband was made, as revealed. Therefore, compliance of Section 50 does not attract in the present case.” Finally, the Hon’ble Supreme Court dismissed the instant appeal. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur The Hon’ble Supreme Court noted that the contraband was seized from the motorcycle, driven by the accused. Therefore, no question arises as to the ownership of the vehicle. Additionally, the Hon’ble Supreme Court observed that the seizure of the contraband (Smack) is proved on record and the same is not challenged by the accused. Thus, the Contraband in full need not be placed on record. Furthermore, the Hon’ble Supreme Court while referring to the case of Vijaysinh Chandubha Jadeja vs. The State of Gujarat (2011) 1 SCC 609 observed that “the arguments advanced by the appellant regarding non­compliance of Section 50 of NDPS Act is bereft of any merit because no recovery of contraband from the person of the accused has been made to which compliance of the provision of Section 50 NDPS Act has to follow mandatorily. In the present case, in the search of a motorcycle at a public place, the seizure of contraband was made, as revealed. Therefore, compliance of Section 50 does not attract in the present case.” Finally, the Hon’ble Supreme Court dismissed the instant appeal. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur Additionally, the Hon’ble Supreme Court observed that the seizure of the contraband (Smack) is proved on record and the same is not challenged by the accused. Thus, the Contraband in full need not be placed on record. Furthermore, the Hon’ble Supreme Court while referring to the case of Vijaysinh Chandubha Jadeja vs. The State of Gujarat (2011) 1 SCC 609 observed that “the arguments advanced by the appellant regarding non­compliance of Section 50 of NDPS Act is bereft of any merit because no recovery of contraband from the person of the accused has been made to which compliance of the provision of Section 50 NDPS Act has to follow mandatorily. In the present case, in the search of a motorcycle at a public place, the seizure of contraband was made, as revealed. Therefore, compliance of Section 50 does not attract in the present case.” Finally, the Hon’ble Supreme Court dismissed the instant appeal. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur Furthermore, the Hon’ble Supreme Court while referring to the case of Vijaysinh Chandubha Jadeja vs. The State of Gujarat (2011) 1 SCC 609 observed that “the arguments advanced by the appellant regarding non­compliance of Section 50 of NDPS Act is bereft of any merit because no recovery of contraband from the person of the accused has been made to which compliance of the provision of Section 50 NDPS Act has to follow mandatorily. In the present case, in the search of a motorcycle at a public place, the seizure of contraband was made, as revealed. Therefore, compliance of Section 50 does not attract in the present case.” Finally, the Hon’ble Supreme Court dismissed the instant appeal. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur Finally, the Hon’ble Supreme Court dismissed the instant appeal.

ARISING OUT OF SPECIAL LEAVE PETITIONNO. OF 8425 OF 2021 2. This appeal has been filed arising out of the judgment dated 25.11.2017 passed by High Court of Judicature of Rajasthan Bench at Jaipur in Criminal Appeal No. 4912 N.D.P.S.) Jhalawar Rajasthan in Sessions Case No. 49 of as "NDPS Act") and sentenced to undergo rigorous imprisonment for 10 years along with fine of Rs. 1 00 000 ­ The facts briefly put as per prosecution allegations on Station In­charge of Bhawani Mandi Police Station alongwith accused Kallu Khan riding an unnumbered motorcycle and vehicle Kallu Khan turned back and tried to ran away Suspecting his conduct the police party apprehended and Khan did not give satisfactory reply. On having doubt S.I Khan and also of the motorcycle which he was riding independent witness could not be found immediately for search. Thereon looking to the conduct of accused S.I Pranveer Singh obtained consent from Constable Sardar Singh & Constable Rajendra Prasad Constable Rajendra Prasad and held that the road which leads from Bhawani Mandi to Sunel. It is said despite efforts due to non­availability of independent same. It is observed that though the search appears to have interest of any witness was shown in the matter. Thus the for the offences under Sections 8 & 21 of NDPS Act and fine of Rs. 1 00 000 ­ and in default to undergo simple The appellant preferred appeal before High Court and primarily rest his challenge on the grounds firstly S.I the said recovery is vitiated. Thirdly there are glaring Upon hearing the High Court was unimpressed of the of evidence concurred with the findings of Trial Court. The High Court said it was a case of chance recovery while the on a public road hence recovery proceedings would be governed by Section 43 of NDPS Act. Nonetheless the High Court reduced the default sentence from two years without on 29.10.2021 looking to the surrender certificate it was however directed to be released on interim bail. The report further indicate that the appellant had been released on bail Thus the sentence as awarded by the Trial Court and Srieekumar learned senior counsel present case the search and seizure was conducted by an unauthorized officer with the help of the police witnesses another 9 SCC 708. As per Section 43 of NDPS Act Pranveer Singh­PW6 is competent for the search and this issue. It is also contended that in case the search and always fatal. In support of the said contention reliance is the prosecution did not examine any independent witness would not necessarily lead to conclusion that accused was has been re­affirmed. It is lastly urged that the concurrent this Court in State of U.P. vs. Krishna Gopal 4 SCC 302 Ganga Kumar Srivastava vs. State of Bihar 6 SCC 211 Jarnail Singh and S.K. Sakkar vs. State of the appellant regarding not having any connection of the vehicle with the accused to prove his guilt reliance is placed on a judgment of this Court in Rizwan Khan vs. State of brought it is apparent that on apprehending the accused seized to which seizure and sample memos were prepared as used by way of chance recovery from public road the provisions of Section 43 of the NDPS Act would apply. In this regard the guidance may be taken from the judgments of this Now reverting to the contention that the motor cycle seized in commission of offence does not belong to accused appraisal of the testimony of witnesses Constable Preetam SinghConstable Sardar SinghS.I. Pranveer Singh beyond reasonable doubt when they were on patrolling the seeing the police vehicle he had taken back the motor cycle intercepted the accused and made the search of vehicle in of the vehicle. However while making search at public place As per Section 43 of NDPS Act any officer of any of the departments specified in Section 42 is having power of seizure any narcotic drug or psychotropic substance or controlled substance. The said officer may detain in search any person whom he has reason to believe that he has committed an offence punishable under the provisions of the NDPS Act in case the possession of the narcotic drug or psychotropic substance appears to be unlawful. Learned senior counsel motor cycle from him is proved beyond reasonable doubt In the similar set of facts in the case of Rizwan KhanAt this state the argument advanced by the appellant regarding non­production of contraband in the court due to Ram10 SCC 649 this Court held that when the seizure of material is proved on record and is not even disputed the doubt that while sending the samples for forensic tests seals by protecting the seized substance or was not stored properly directions were given to be followed on administrative side However in the facts of the case the said judgment is not of any Similarly in the case of Than Kumar vs. State of is otherwise proved and the samples taken from and out of contraband material were kept intact the report of forensic expert shows potency nature and quality of contraband As discussed above the appellant has failed to show that findings recorded by two Courts suffer from any perversity or Simultaneously the arguments advanced by the In the present case in the search of motor cycle at public place the seizure of contraband was made as revealed. Therefore the present case following the judgments of Surinder Kumar supra) and Baljinder Singh it is held that interference in exercise of the called for when the judgment of the lower court is vitiated by said issue in the case of Ganga Kumar Srivastava whereby it is settled that interference can be made when a finding is vitiated by any error of law or procedure or found contrary to the principles of natural justice and misreading of the evidence or where the conclusions of the High Court are manifestly perverse and unsupportable from the evidence on supra) reaffirming the law as laid down in Ganga Kumar Srivastava this Court has reaffirmed the issue of scope of In view of the foregoing discussion looking to the facts of the present case in our considered opinion the findings for the charges and to direct him to undergo sentence as prescribed do not suffer from any perversity illegality Accordingly we do not find any merit in this appeal fine therefore no further directions need be issued.

An accused must be allowed to prepare his defence adequately has also to be considered by the court : High Court of Meghalaya

It is well settled that the High Court, or for that matter all Courts dealing with bail jurisdiction are called upon to exercise its discretion judiciously, cautiously and in strict compliance with the basic principles as upheld by the High Court of Meghalaya through the learned bench led by Justice W. Diengdoh in the case of Smti. Aibakor Kharbuli Vs. State of Meghalaya (BA. No. 6 of 2021). The brief facts of the case are that an FIR was lodged by one Shri Taining Donbor Nongrang to the effect that his sister aged about 16 years who was working as a helper in the house of the accused was molested by the accused since the year 2020. The said FIR was registered at the Mawlai Police Station as Mawlai under Section 506 IPC r/w Sections 7/8 POCSO Act, whereupon on coming to learn of the said FIR, the accused surrendered before the concerned police station and on being sent for medical examination, he tested positive for COVID-19 and was quarantine at the Youth Hostel, Shillong. He was thereafter remanded to judicial custody and is still under custody till date. It is also stated that the charge sheet has already been filed with the I/O indicating that a prima facie case under Section 9(i) /10 POCSO Act r/w Section 506 IPC is made out against the accused. Mr. K. Ch. Gautam, learned counsel for the applicant has submitted that the accused had surrendered before the Court and was arrested and is now in judicial custody for more than two months. A bail application was moved before the Court below, but the same was rejected citing Section 29 of the POCSO Act and in the meantime, the charge sheet has been filed. Pressing for an order to release the accused on bail, Mr. Gautam has submitted that the rigors of POCSO are very strict and as such, if the accused is kept in custody and not allowed to go on bail to defend his case, he will suffer irreparable injury. However, if enlarged on bail, he is willing to abide with the strictest of conditions imposed by this Court and will provide sufficient surety in this regard. Mr. H. Abraham, learned GA appearing on behalf of the State respondent has strongly opposed this bail application submitting that the offence involved are very serious and more particularly since the matter has already been charge sheeted, the trial can be expedited. However, bail at this stage may not be granted. After hearing the learned counsels for respective parties, the Court held, “Though this Court is in respectful with proposition of law on the aspects of Section 29 of the POCSO Act, however in the context of the case in hand, this would not help the accused as the specific order of the learned Special Court(POCSO) in this regard has not been specifically assailed and could not have been done so in this instant application. In view of the above, this Court is of the considered opinion that the accused person can be enlarged on bail with certain conditions.”

Serial No. 01 Regular List BA. No. 21 HIGH COURT OF MEGHALAYA AT SHILLONG Date of Decision: 20.09.2021 Smti. Aibakor Kharbuli State of Meghalaya. Hon’ble Mr. Justice W. Diengdoh Judge Mr. K. Ch. Gautam Adv. Mr. H. Abraham GA. For the Petitioner Appellant(s) For the Respondent(s) i) Whether approved for reporting in Law journals etc.: ii) Whether approved for publication in press: 1. Matter taken up via video conferencing. The applicant has approached this Court with an application under Section 439 Cr.P.C. r w section 31 of the POCSO Act with a prayer for grant of bail to the accused person Shri Milon Warjri. Facts as stated in the application is that an FIR was lodged by one Shri Taining Donbor Nongrang to the effect that his sister aged about 16 years who was working as a helper in the house of the accused was molested by the accused since the year 2020. The said FIR was registered at the Mawlai Police Station as Mawlai P.S. Case No. 32(6) 2021 under Section 506 IPC r w Sections 7 8 POCSO Act whereupon on coming to learn of the said FIR the accused surrendered before the concerned police station on 28.06.2021 and on being sent for medical examination he tested positive for COVID 19 and was quarantine at the Youth Hostel Shillong. He was thereafter remanded to judicial custody and is still under custody till date. It is also stated that the charge sheet has already been filed with the I O indicating that a prima facie case under Section 9(i) 10 POCSO Act r w Section 506 IPC is made out against the accused. Heard Mr. K. Ch. Gautam learned counsel for the applicant who has submitted that the accused had surrendered before the Court and was arrested and is now in judicial custody for more than two months. A bail application was moved before the Court below but the same was rejected citing Section 29 of the POCSO Act and in the meantime the charge sheet has been filed. Mr. Gautam has further submitted that the only evidence against the accused is the statement of the victim whose statement is very sketchy inasmuch as she has stated that she has disclosed about the incident to the other household help who is working in the same house but the said household help in her statement has denied any such disclosure. Pressing for an order to release the accused on bail Mr. Gautam has submitted that the rigors of POCSO are very strict and as such if the accused is kept in custody and not allowed to go on bail to defend his case he will suffer irreparable injury. However if enlarged on bail he is willing to abide with the strictest of conditions imposed by this Court and will provide sufficient surety in this regard. To support his case learned counsel for the applicant has placed reliance on the following judgments: i) Dharmander Singh @ Sahep v. The StateBail Appl. No. 1559 2020 paragraphs 64 to 69 and ii) Bhupen Kalita v. State of Assam: 2020GLR 153 paragraphs 48 49 50 51 54 and 62. 10. Mr. H. Abraham learned GA appearing on behalf of the State respondent has strongly opposed this bail application submitting that the offence involved are very serious and more particularly since the matter has already been charge sheeted the trial can be expedited. However bail at this stage may not be granted. Upon hearing the learned counsels for the parties before adverting to the facts and circumstances of the case vis à vis consideration of bail it would not be out of place to cite excepts from the case of Harjit Singh v. Inderpreet Singh @ Inder & Anr wherein the Hon’ble Supreme Court vide order dated 24.08.2021 in Criminal Appeal No. 883 of 2021 has inter alia discussed in substantial details the principles of bail by quoting relevant extracts from a number of decisions by the Apex Court itself. Taking the liberty to quote the observations made in the said Harjit Singh case on liberty of a person the Apex Court at paragraph 7.2 has referred to the case of Ash Mohammad v. Shiv Raj Singh @ Lalla Babu & Anr:9 SCC 446 at paragraph 17 which is reproduced as follows: “17. We are absolutely conscious that liberty of a person should not be lightly dealt with for deprivation of liberty of a person has immense impact on the mind of a person. Incarceration creates a concavity in the personality of an individual. Sometimes it causes a sense of vacuum. Needless to emphasise the sacrosanctity of liberty is paramount in a civilized society. However in a democratic body polity which is wedded to the rule of law an individual is expected to grow within the social restrictions sanctioned by law. The individual liberty is restricted by larger social interest and its deprivation must have due sanction of law. In an orderly society an individual is expected to live with dignity having respect for law and also giving due respect to others’ rights. It is a well accepted principle that the concept of liberty is not in the realm of absolutism but is a restricted one. The cry of the collective for justice its desire for peace and harmony and its necessity for security cannot be allowed to be trivialized. The life of an individual living in a society governed by the rule of law has to be regulated and such regulations which are the source in law subserve the social balance and function as a significant instrument for protection of human rights and security of the collective. It is because fundamentally laws are made for their obedience so that every member of the society lives peacefully in a society to achieve his individual as well as social interest. That is why Edmond Burke while discussing about liberty opined “it is regulated freedom”. Again as regard the principles for grant of bail the Apex Court has quoted the case of Ram Govind Upadhyay v. Sudarshan Singh & Ors:3 SCC 598 wherein at paragraphs 3 and 4 the following was observed: “3. Grant of bail though being a discretionary order but however calls for exercise of such a discretion in a judicious manner and not as a matter of course. Order for bail bereft of any cogent reason cannot be sustained. Needless to record however that the grant of bail is dependent upon the contextual facts of the matter being dealt with by the court and facts however do always vary from case to case. While placement of the accused in the society though may be considered but that by itself cannot be a guiding factor in the matter of grant of bail and the same should and ought always to be coupled with other circumstances warranting the grant of bail. The nature of the offence is one of the basic consideration for the grant of bail more heinous is the crime the greater is the chance of rejection of the bail though however dependent on the factual matrix of the matter. Apart from the above certain other which may be attributed to be relevant considerations may also be noticed at this juncture though however the same are only illustrative and nor exhaustive neither there can be any. The considerations a) While granting bail the court has to keep in mind not only the nature of the accusations but the severity of the punishment if the accusation entails a conviction and the nature of evidence in support of the accusations. b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail. c) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge. d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution in the normal course of events the accused is entitled to an order of bail.” It is also well settled that the High Court or for that matter all Courts dealing with bail jurisdiction are called upon to exercise its discretion judiciously cautiously and in strict compliance with the basic principles some of which are enumerated below: i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence ii) nature and gravity of the accusation iii) severity of the punishment in the event of conviction iv) danger of the accused absconding or fleeing if released on bail v) character behavior means position and standing of the accused vi) likelihood of the offence being repeated vii) reasonable apprehension of the witnesses being influenced viii) danger of course of justice being thwarted by grant of bail. In the light of the above the records including the case diary is to be examined to see whether any prima facie case has been made out against the accused. The accusation is that the victim who is a minor and was working as domestic help in the house of the accused was molested and her modesty was outraged by him on several occasions inasmuch as he would inappropriately touch parts of her body which was resisted by her. Finally when she informed her relatives the informant who is her elder brother had lodged the FIR on 28.06.2021. On investigation being launched the I O has accordingly filed the charge sheet opining that during investigation a case under Section 910 POCSO Act read with Section 506 IPC is found well established against the accused herein. The matter was accordingly referred for trial. The factual position as it is is that investigation has been completed and the matter was referred for trial. Therefore there is no possibility of the accused tampering with the material evidence. As observed personal liberty being given its due place in the scheme of things particularly where a person accused of an offence is kept in custody. That an accused must be allowed to prepare his defence adequately has also to be considered by the court. Though this Court is in respectful with proposition of law as expounded in the authorities cited by the learned counsel for the applicant on the aspects of Section 29 of the POCSO Act however in the context of the case in hand this would not help the accused as the specific order of the learned Special Court(POCSO) in this regard has not been specifically assailed and could not have been done so in this instant application. In view of the above this Court is of the considered opinion that the accused person can be enlarged on bail with certain conditions. Accordingly the accused person is hereby allowed to go on bail on the following conditions: That he shall produce a personal bond of ₹ 30 000 only along with two solvent sureties of like amount to the satisfaction of the Trial Court That he shall not abscond or threaten the witnesses including the victim iii) That he shall appear in Court as and when required iv) That he shall not leave the jurisdiction of India without due permission of the Court. It goes without saying that violation of any of the conditions stated above would render the bail granted to be cancelled in due process of law. 21. With the above this instant application is disposed of. Registry is directed to return the case records. Judge “D. Nary PS”

No appeal can be entertained without proper establishment of witnesses and evidence – Bombay High Court

In criminal cases, the evidence plays the most important role. If witness and evidence for the same are not established, then a thousand appeals also can’t help in a case. Therefore, proving the evidence in a criminal matter is the most intrinsic part of it. The mensrea and actus rea are correlated to each, which shows the knowledge and intention of the case, and these two supplements are hence proved by the help of evidence. Therefore,  one such recent case which shows the importance of the evidence is the case of Nikhil Dnyanoba Tambalge v. State of Maharashtra [ CRIMINAL APPEAL NO.504 OF 2020]. The facts of the case initiates when an appeal was filed under section 14 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (“Atrocities Act”), challenging an order dated 28.08.2020 issued by the Court of Special Judge, Pune, in which the appellant’s application for bail was denied. The appellant is one of the defendants in an FIR filed on August 17, 2019, at Police Station Chakan, Pune, charging him with violating sections 302, 143, 147, 148, 149, 504, and 506 of the Indian Penal Code, as well as section 3(2)(Va) of the Atrocities Act. According to the FIR filed against the appellant and other accused persons, respondent No.2 (original complainant) went to the police on August 17, 2019, alleging that the accused, including the appellant herein, assaulted his son Akash (deceased) with wooden logs, causing him multiple injuries. The incident, according to respondent No.2, occurred on August 4, 2019. At about 8:00 p.m., the accused persons took the deceased to his home, where respondent No.2 was present. They said that they had beaten the deceased because he was allegedly bullying some girls at Swami Samarth School in Amrutnagar. They threatened respondent No.2 to send the deceased to his village immediately. Respondent No.2 states that the deceased became unconscious and had to be rushed to the hospital. When the accused learned of the deceased’s medical condition, they came forward and provided for his care, but he died of his injuries on August 11, 2019. According to respondent No.2, the accused persons repeatedly threatened him, and since they had paid for his care, he did not approach the police at the time. However, after his son died, respondent No.2 approached the police for the registration of the FIR. Mr. Samir A. Vaidya, learned counsel for the appellant, argued that an examination of the charge-sheet and the facts found that there was no evidence linking the appellant to the alleged crime. It was reported that there were no eyewitnesses and that the FIR was not registered in a timely manner. On this basis, it was argued that the contested order deserved to be overturned and the appeal granted. Smt. A. S. Pai, learned APP appearing on behalf of the respondent – State refuted the appellant’s arguments and reminded the Court that an appeal bearing Criminal Appeal No.326 of 2020, filed by two co-accused persons, had already been dismissed by this Court by judgment and order dated February 23, 2021. It was argued that since the charges against the defendants were identical, the current appeal would also fail. It was also argued that even though there was no evidence linking the appellant to the crime in question, the appeal deserved to be dismissed.  The court held that “even otherwise, we find that the contentions raised on behalf of the appellant in the present appeal cannot be accepted. The alleged delay in registration of the FIR appears to be explained in the complaint itself lodged by the respondent No.2. In any case, it would be a matter to be decided in trial upon leading evidence. But we are of the opinion that at this stage, prayer for bail made on behalf of the appellant cannot be granted merely because there was alleged delay in registration of the FIR.” “We have also perused the material on record. We find that there are witnesses who have made statements which support the statement made by the respondent No.2 (original complainant) with regard to the manner in which the incident took place in the present case. There appears to be material to prima-facie link the appellant with the offense and role attributed to him. The offense is certainly of a serious nature and considering the fact that the respondent No.2 belongs to a socially and economically weak strata of society, there is possibility of the respondent No.2 and other witnesses being pressurized, if the appellant is released on bail.”

904) Apeal 504 20.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.504 OF 2020 Nikhil Dnyanoba Tambalge Aged 24 years R o: Balajinagar Medankarwadi Chakan Tal. Khed District: PuneAct 1989challenging the order dated 28.08.2020 passed by the Court of Special Judge Pune whereby application for bail fled on behalf of the appellant was rejected The appellant is one of the accused in FIR dated 17.08.2019 registered at Police Station Chakan Pune for ofences under sections 302 143 147 148 149 504 and 506 of the Indian Penal Code as also under section 3(2)(Va) of the Apeal 504 20.doc As per the FIR registered against the appellant and other accused persons the respondent No.2 approached the police on 17.08.2019 stating that the accused including the appellant herein had assaulted his son Akash with wooden logs due to which he sufered multiple injuries. According to respondent No.2 the incident had occurred on 04.08.2019. The accused persons had brought the said deceased to his residence at about 8:00 p.m where respondent No.2 was present. They claimed that since the deceased was allegedly harassing certain girls of Swami Samarth School Amrutnagar they had beaten him. They threatened respondent No.2 to send the deceased to his village According to respondent No.2 the deceased fell unconscious and he had to be admitted to the hospital. When the serious condition of the deceased was known to the accused they came forward and paid the expenses for his treatment but he succumbed to his injuries on 11.08.2019 According to the respondent No.2 the accused persons repeatedly threatened him and since they had borne the expenses of the treatment he did not approach the police earlier and after his son died the respondent No.2 eventually approached the police for registration of the FIR On completion of investigation charge sheet was submitted on 16.10.2019. The appellant moved an application for bail before the Court below which stood rejected by the Apeal 504 20.doc impugned order. The Court below found that the ofence was of serious nature and that there was material on record to connect the appellant with the ofence and further that there was possibility of the witnesses being pressurized if the appellant was released on bail Mr. Samir A. Vaidya learned counsel appearing for the appellant submitted that a perusal of the charge sheet and the material on record demonstrated that there was nothing to connect the appellant with the aforesaid ofence. It was submitted that there were no eye witnesses and that there was delay in registration of the FIR. On this basis it was submitted that the impugned order deserved to be set aside and the appeal deserved to be allowed Smt. A. S. Pai learned APP appearing on behalf of the respondent State opposed the contentions raised on behalf of the appellant and brought to the notice of this Court that an appeal bearing Criminal Appeal No.3220 fled by two co accused persons was already dismissed by this Court by judgment and order dated 23.02.2021. It was submitted that allegations against the accused persons were similar and therefore the present appeal must also fail. It was further submitted that even otherwise there was sufcient material to link the appellant with the ofence in question and therefore the appeal deserved to be dismissed Apeal 504 20.doc A perusal of the judgment dated 23.02.2021 passed by this Court in Criminal Appeal No.326 of 2020 in Ganpat Lohar and another Vs. The State of Maharashtra and another shows that the appeal of co accused persons was indeed dismissed by this Court. The nature of contentions raised in the present appeal are similar to those raised in the aforesaid appeal and therefore on this ground itself the present appeal deserves to be dismissed Even otherwise we fnd that the contentions raised on behalf of the appellant in the present appeal cannot be accepted. The alleged delay in registration of the FIR appears to be explained in the complaint itself lodged by the respondent No.2. In any case it would be a matter to be decided in trial upon leading evidence. But we are of the opinion that at this stage prayer for bail made on behalf of the appellant cannot be granted merely because there was alleged delay in registration of the FIR We have also perused the material on record. We fnd that there are witnesses who have made statements which support the statement made by the respondent No.2with regard to the manner in which the incident took place in the present case. There appears to be material to prima facie link the appellant with the ofence and role attributed to him. The ofence is certainly of a serious nature and considering the fact that the respondent No.2 belongs to a socially and economically weak strata of society there is Apeal 504 20.doc possibility of the respondent No.2 and other witnesses being pressurized if the appellant is released on bail Therefore we do not fnd that the contentions raised on behalf of the appellant can be accepted. No error can be attributed to the fndings rendered by the Court below while rejecting the bail application of the appellant. Accordingly the appeal is dismissed. The direction given by this Court in its judgment and order dated 23.02.2021 in Criminal Appeal No.326 of 2020 fled by the co accused persons regarding expeditious disposal of proceedings by the Court below is reiterated and we expect that the Court below would complete the trial at the earliest In view of the disposal of the appeal all connected applications if any stand disposed of. It is made clear that the observations made in this order are prima facie in nature and they are confned to adjudication of the present appeal only. MANISH PITALE J S. S. SHINDE J]

Anand Sarup Sharma vs P.P. Khurana and Others

Introduction: The court in the present case dealt with the third-party liability, where the insured had sold his scooter while the scooter was still registered in his name. It also dealt with the question of who would have to pay compensation in cases like these and whether the appellant could claim compensation from the insurance company or the seller of the scooter. Provisions discussed: Section 110A of the Motor Vehicles Act, 1988 (hereafter referred to as the ‘Act’). Section 2(19) of the Sale of Goods Act, 1930. Facts: Wadhwa was an owner of a two wheels scooter that was insured with the insurance company (M/s. Vanguard Insurance Co. Ltd) from the duration of September 27th, 1968, to September 26th, 1969. Wadhwa sold the scooter to P.P Khurana on December 15th, 1968. Ownership in the name of Khurana was not transferred in the records of the registering authority under the Motor Vehicles Act and subsequently, the scooter was registered with the registering authority in the name of Wadhwa and the same continued after the sale. Khurana was granted a certificate of insurance from the period March 1st, 1969, to September 26, 1969. On January 3rd, 1969, the appellant, Anand Sarup Sharma sustained injuries when the scooter in question hit him as he was going towards Nangal Rai. Subsequently, he brought a petition under section 110A of the Act against Khurana, Wadhwa, and the insurance company claiming a sum of Rs. 50,000 as compensation on the ground that though Wadhwa had sold the scooter to Khurana, he was still a registered owner and was, therefore, liable to pay compensation. The Motor Accidents Claims Tribunal in its judgment awarded a sum of Rs. 3,850 solely against Khurana. It dismissed the application against Wadhwa and the insurance company. Aggrieved by the decision, Sharma filed an appeal praying for enhancement of the compensation and for awarding the compensation against all the respondents. Issues: Arguments: Contentions put forth by the appellant: Judgment: The court stated that the scooter being the property of Khurana was an indisputable fact, as the sale was complete on December 15th, 1968. The scooter is a movable property its sale would be governed under the Sale of Goods Act. Referring to section 2(19) of the sales of a good act, the court observed that section nowhere indicated that a registered owner would continue to be the owner of the vehicle even after he had sold such vehicle. Relying on various legal precedents the court held that the transfer of ownership in the records of the registering authority was not a prerequisite condition for sale. Pertaining to the third-party liability the court perused Section 95 of the Act and held that the insurance policy nowhere states that the company would be liable to indemnify the person to whom the insured had sold the vehicle prior to such accident and that the company couldn’t be compelled to indemnify a person with whom it had no contract and who was rather unknown to it. After the sale of the vehicle, the insured couldn’t claim any insurable interest in the vehicle. Thus, it was held that the insurance company was not liable to indemnify the appellant. It further held that “the statutory liability of the insurance company under section 96 is only to meet the decree against the insured with whom it has entered into a contract. In other words, the insurance company is liable to meet the decree or award, if the said decree or award is against the person insured by it.” Regarding whether Wadhwa was liable to pay the appellant, the court held that the ‘seller cannot be held liable for the tortious act of the purchaser or his servant, committed during the course of this (purchaser’s) employment.’ The purchaser by the provision of Section 94 is barred from using the vehicle without getting it insured and non-compliance thereof, will not make the seller liable. The mere fact that the seller continues to be a registered owner wouldn’t make the seller liable for compensation. The court rejected the contention of the appellant and stated that the extending clause of insurance comes to an end the moment the vehicle is sold. Thus, the court held that the change of ownership of a vehicle would put an end to the contract of the insurance policy and the third-party liability of the insurance company would thus, come to an end on the transfer of the vehicle by the insured to another person. Conclusion: Thus, the court held that the appellant would not be entitled to compensation from the insurer or the seller of the scooter and thus, elucidated that third-party liability would come to an end if the ownership of a vehicle of the insured is vested to someone else.

Anand Sarup Sharma vs P.P. Khurana And Others on 28 September 1988 Delhi High Court Anand Sarup Sharma vs P.P. Khurana And Others on 28 September 1988 Equivalent citations: AIR 1989 Delhi 88 1989 65 CompCas 413 Delhi 1989DRJ 27 1988 RLR Author: G Jain Bench: G Jain S Chadha S Bhandare JUDGMENT G.C. Jain J 1. A learned single judge of this court agreeing with the decision of the full Bench of the Andhra Pradesh High Court in Madineni Kondaiah v. Yaseen Fatima60 Comp Case 762 AIR 1986 AP 62 which was in conflict with the Division Bench decision of this court Oriental Fire and General Insurance Co . Ltd. Vimal Roy has referred the following questions of law for decision of the the Full Bench Whether the third party liability of the insurance company comes to an end on transfer of vehicle by the insured to someone else 2. The facts leading t the reference briefly stated are these Shri A. N. Wadhwawas the owner of a two wheels scooter registration No. DLO 7451. It was insured with M s. Vanguard Insurance Co. Ltd.for the period from September 27 1968 to September 26 1969. Wadhwa sold the sector to P. P. Khuranaon November 27 1968 and delivered possession thereof. Final receipt was to be given after getting permission from the Ministry of Rehabilitation where he was employed. Permission was granted on December 7 1968 and find receipt indicating the sale of scooter with delivery of possession for Rs. 2 200 was issued on December 15 1968. The scooter was registered with the registering authority in the name of Wadhwa. This continued even after sale. In other words ownership in the name of Khurana was not transferred in the records of the registering authority under the Motor Vehicles Acttill the date of accident. It was as transferred after the accident. In lieu of the certificate of insurance No. 671183 for the period September 27 1968 to September 26 1969 in favor of Wadhwa another certificate No. 710154 for the period March 1 1969 to September 26 1969 was issued by the insurance company in favor of Khurana 3. On January 3 1969 at about 9.00 a.m. Anand Sarup Sharma the appellant it is stated was going towards Nangal Rai from Gopi Nath Bazar on foot when Khurana driving this scooter came from behind and hit him resulting in fracture of shafts of tibia and fibula 4. On March 1 1969 Sharma brought a petition under section 110A of the Act against Khurana Wadhwa and the insurance company claiming a sum of Rs. 50 000 as compensation. The amount was claimed from Wadhwa and the insurance company on the ground that though Wadhwa had sold the scooter to Khurana he was still a registered owner and was therefore liable to pay compensation. Consequently his insurer was liable to satisfy the award 5. The Motor Accidents Claims Tribunal vide its judgment dated October 27 1975 recorded the following findings Indian Kanoon 1. Sharma was injured as a result of rash and negligent driving of the scooter by Khurana Anand Sarup Sharma vs P.P. Khurana And Others on 28 September 1988 2. Wadhwa had transferred the scooter in question in favor of Khurana before the date of the 3. Wadhwa had no insurable interest in the scooter on the date of the accident. The insurance company therefore was not liable to pay any compensation 4. The petition was not bad for want of notice and 5. The petitioner Sharma was entitled to recover Rs. 3 850 as compensation 6. On these findings he awarded a sum of Rs. 3 850 with costs and future interest if the amount was not paid within two months of the date of the award against Khurana only. The application against Wadhwa and the insurance company was dismissed 7. Feeling aggrieved Sharma filed an appeal praying for enhancement of the compensation and for awarding the compensation and for awarding the compensation against all the respondents 8. At the time of arguments before the learned single judge learned counsel appearing for the appellant relied on the Full Bench decision of the Andhra Pradesh High Court in Kondaiah s case 1986] 60 Comp Case 762 AIR 1986 AP 62 where it was held that the insurance company could not raise the defense that the policy had lapsed because of the sale of the sale of the vehicle and that the insurable interest continued so far as third party risk was concerned so long as the obligation under the statute as stipulated under section 31 read with section 94 of the Act was not fulfillled Agreeing with the decision but observing that a contrary view had been taken by the Division Bench of this court in Vimal Rai s case which was binding on him sitting singly the learned single judge referred the above mentioned question to the Full Bench 9. The scooter was movable property. Its sale was undisputedly governed by the Sale of Goods Act A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a price..... Where under a contract of sale the property in the goods is transferred from the seller to the buyer the contract is called a sale. ...."to Khurana buyer) at least on December 15 1968 when the final receipt was executed. The price had been paid Possession had been delivered before the sale. THe sale in all respects was thus complete on December 15 1968 i.e. before the date of accident. The property in the scooter had passed to the 11. Is there any provision in the Motor Vehicles Act 1939 to postpone the transfer of the property from the seller to the buyer though the transfer is complete under the Sale of Goods Act till some Indian Kanoon Anand Sarup Sharma vs P.P. Khurana And Others on 28 September 1988 other event take place 12. Section 2(19) of the Act defines "owner" as under owner means where the person in possession of a motor vehicle is a monor the guardian of such minor and in relation to a motor vehicle which is the subject of a hire purchase agreement the person in possession of the vehicle under that agreement 13. This definition does not include a registered owner in its ambit. It does not indicate at all that a registered owner would continue to be owner of the vehicle even after he has sold it till it was registered in the vehicle even after he has sold it till it was registered in the name of the transferee 14. The contention of learned counsel for the appellant is that the seller would remain owner till the time the ownership of the scooter was transferred in the name of the buyer in the records of the registering authority. The Seller would cease to be the owner only after the vehicle was registered in the buyer s name. In support of his contention he relied on sections 22 and 31 of the Act. Section 22 and the relevant portion of section 31 reads 22. Necessity for registration. No person shall drive any motor vehicle and no owner of a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place or in any other place for the purpose of carrying passengers or goods unless the vehicle is registered in accordance with this Chapter and the certificate of registration of the vehicle has not been suspended or cancelled and the vehicle carries a registration marks displayed in the prescribed 31. Transfer of ownership. Where the ownership of any motor vehicle registered under this Chapter is transferred a) the transferor shall i) within fourteen days of the transfer report the fact of transfer to the registering authority within whose jurisdiction the transfer is to be effected and shall simultaneously send a copy of the said report to the transferee ii) within forty five days of the transfer forward to the registering authority referred to in sub clauseA) a no objection certificate obtained under section 29A orin a case where no such certificate has been obtained I) a receipt obtained under sub sectionof section 29A ora postal acknowledgment received by the transferor if he has sent an application in this behalf by registered post acknowledgment due to the registering authority to in section 29A together with a declaration that he has not received any communication from such authority refusing to grant such certificate or requiring him to Indian Kanoon comply with any declaration subject to which such certificate may be granted Anand Sarup Sharma vs P.P. Khurana And Others on 28 September 1988 b) the transferee shall within thirty days of the transfer report the transfer to the registering authority within whose jurisdiction he resides and shall forward the certificate of registration to that registering authority together with the prescribed fee and a copy of the report received by him from the transferor in order that particulars of the transfer of ownership may be entered in the certificate of registration 15. We have carefully examined the above provisions. In our considered opinion these provisions do not have the effect of postponing the transfer of property from the seller to the buyer till the transferor and transferee make the requisite report and the vehicle is registered in the name of the transferee. Section 22 simply imposes a statutory obligation. It prohibits the driving of any vehicle by any person unless the vehicle is registered. Non compliance with these provisions does not have the effect of postponing the transfer of property in the vehicle from buyer to seller. To take a contrary view would result in an absurd result. If a buyer after purchase does not use the vehicle he is the owner. But if after one year he uses it he ceases to be owner. It is not and cannot be the law 16. The opening words of section 31 "where the ownership of any motor vehicle registered under this Chapter is transferred" make it clear that transfer of ownership has to precede the reports required to be made under section 31. Section 31 does not prohibit the transfer of a motor vehicle till the reports are made. These provisions only cast an obligation on the transferor and the transferee to report to the registering authority concerned regarding the transfer of the vehicle after the vehicle after the transfer has already taken place. These provisions have to do with the ownership of the vehicle as such. They merely provide for regulations for use motor vehicles in public places. Their non compliance attracts penalties 17. In Vimal Rai s case44 Comp Case 316 a Division Bench of this court held as underThe penalty for contravention of the provisions of the Act or the rules made there under is contained in section 112 and other provisions occurring in Chapter IX of the Act. It is however significant that there is in particular no provision of law stating that the registration of a motor vehicle is a condition precedent for any transfer of the vehicle or that in the absence of registration the sale would be void or ineffective. On the other hand an analysis of section 31 of the Act shows that it presupposes a valid and subsisting transferred by the registered owner of the vehicle to another person and the transferor is enjoyed a duty within 14 days after the transfer to report the transfer to the transfer to the authority and the transferee is within 30 days required to report the transfer to the authority. The endorsement of the transfer in the records of the registering authority is therefore not a condition precedent to the transfer nor does it deal with the legality or validity of the transfer which must be determined by other provisions of the law. Should any person in disregard of the provisions of law fail to intimate the transfer to the authority or drive the vehicle in a public place without a certificate of registration he runs the risk of incurring the penalties provided by the Act but his title to the purchase to the purchase of the vehicle undoubtedly remains unaffected nor does the title remain in suspense during the grace period allowed for affecting Indian Kanoon endorsements of registration Anand Sarup Sharma vs P.P. Khurana And Others on 28 September 1988 On a perusal of the Motor Vehicles Act it cannot be denied that the registration certificate is a very important piece of evidence to show the ownership of the vehicle particularly as the person making an application is required to produce the vehicle before the authority for inspection and without a registration certificate a person would normally find it unless to own the vehicle if he cannot drive it in any public place and so in his own interest the transferred will take stamps to have the particulars of the transfer endorsed on the certificate of registration. However failure to do so cannot deemed to militate against the validity and legality of the passing of the title in the vehicle so transferred or to expose the innocent seller who may have done his all to complete the transfer to legal liabilities for acts and omissions in respect of the vehicle subsequent to the transfer. Moreover the certificate of registration is not a document of title it is issued to the owner of the vehicle that is to the person by whom the vehicle is kept and used and although provision is made for change of ownership to be recorded in the book the name appearing in it may not be of the legal owner of the vehicle the registration book is evidence of title and its absence at the time of sale should put a purchaser on enquiry 18. This decision was followed by Division Bench of the Madhya Pradesh High Court in Balwant Singh v. JhannubaiACJ 126. The same view was taken by the Orissa High Court in A. N Choudhry v. Debahuti Patnaik455. Even the Full Bench of the Andhra Pradesh High Court accepted this view Kondaiah s case60 Comp Case 762. In any case this question stands settled by the decision of the Supreme Court in Panna Lal v. Chand Mal . It was held that section 31 permits the transfer of ownership but the statute casts an obligation on the transferee to report to the registering authority concerned regarding the transfer. It is thus clear that transfer of ownership in the records of the registering authority is not a condition precedent for sale 19. What the is the effect of the sale of the motor vehicle before the date of accident on the liability of the insurance company Does the insurable interest survive even after the sale 20. A contract of motor insurance is a contract whereby the insurer undertakes to indemnify the insured on the happening of an uncertain event by the use of the motor vehicle subject matter of the insurance which makes the insured legally liable to pay compensation. Like any other contract it is basically governed by the rules which form part of the general law of contract. It also is formed by the making of an offer by one party and communicating of the acceptance by the other 21. The insurance policy in this case was issued on March 18 1969. The insured was Amar Nath wadhwa. The insurer was Vanguard Insurance Company Limited. The vehicle subject matter of insurance was a two wheeler scooter bearing registration No. DLO 7451. The relevant portion of the clause relating to the liability to third parties reads Section II Liability to third parties. Subject to the limits of liability the company will indemnify the insured in the event of accident caused by or arising out of the use of the motor cycle against all sums including claimant s costs and expenses which the insured shall become legally liable to pay in respect of Indian Kanoon Anand Sarup Sharma vs P.P. Khurana And Others on 28 September 1988 a) death of or bodily injury to any person but except so far as is necessary to meet the requirements of section 95 of the Motor Vehicles Act 1939 the company shall not be liable where such death or injury arises out of and in the course of employment of such person by the insured and excluding the liability to any person being conveyed in or on the motor cycle unless such person is being conveyed by reason of or in pursuance of a contract of employment 22. It is clear from this clause that the insurance company undertook to indemnify the insured against all sums which the insured becomes legally liable to pay in respect of death of or bodily injury to any person caused by or arising out of the use of the scooter in question. In other words the contract between the insurance company and the insured was to indemnify the insured in respect of third party liability. Without any doubt it was a contract of personal indemnity. There is nothing in the insurance policy to indicate that the insurance company had undertaken to indemnify the person to whom the insured has sold the vehicle prior to the accident. The insurance company could not be compelled to indemnify a person with whom it had no contract and who was rather unknown to it. After the sale the insured was left with no insured was left with no insurable interest in the vehicle. Therefore under the terms of the contract of insurance the insurance company was not liable to indemnify the transferee 23. Has any liability been imposed on the insurance company by the statute i.e. the Act Section 94 of the Act on which reliance has been placed by learned counsel for the appellant simply prohibits the use of a motor vehicle by any person except as a passenger unless it was insured as required in Chapter VIII which deals with insurance of motor vehicle against third party risks. These provisions in our considered judgment do not make the ex owner who was duly insured or the insurance company with whom the ex owner was insured liable. It simply imposes a statutory obligation to get the vehicle insured before putting it into use. Non compliance is punishable under section 112 of the Act. Non compliance in any case is by the purchaser and not by the seller. These provisions do not make the insurer of the ex owner liable to indemnify the purchaser who had purchased the vehicle from the ex owner. These provisions do not have the effect of modifying the contract of insurance by adding the buyer of the vehicle as an insured person 24. Section 96(1) of the Act reads as under Duty of insurers to satisfy judgments against persons insured is respect of third party risks. If after a certificate of insurance has been issued under sub sectionof section 95 in favor of the person by whom a policy has been effected judgment in respect of any such liability as is required to be covered by a policy under clauseof sub sectionof section 95is obtained against any person insured by the policy then notwithstanding that the insurer may be entitled to avoid or cancel or may avoided or cancelled the policy the insurer shall subject to the provisions of this section pay to the person entitled to the benefit of the decree any sun not exceeding the sum assured payable there under as if he were the judgment debtor in respect of the liability together with any amount payable in respect of costs and any sum payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments Indian Kanoon Anand Sarup Sharma vs P.P. Khurana And Others on 28 September 1988 25. Under these provisions the insurance company is liable to pay to the person entitled to the benefit of the decree the sum not exceeding the sum insured under the policy provided a certificate of insurance has been issued in favor of the person by whom the policy has been effected andjudgment in respect of liability covered by the policy has been obtained against the person insured. In short the statutory liability of the insurance company under section 96 is only to meet the decree against the insured with whom it has entered into a contract. In other words the insurance company is liable to meet the decree or award if the said decree or award is against the person insured by it 26. A decree or award in our opinion can never be made against a person who has sold the vehicle prior to the date of accident. A driver is always liable if the death or bodily injury is caused due to his rash and negligent driving. It is also the rule that an employer though guilty of no fault of himself is liable for damage done by a fault or negligence of his servant acting in the course of his employment on the principle that an owner is victoriously liable for the argument be termed as the servant of the seller. The seller therefore cannot be held liable for the tortious act of the purchaser or his servant committed during the course of thisemployment. The purchaser in view of the provisions of section 94 no doubt is barred by statute from using the vehicle without getting it insured. Non compliance with the statutory obligation can lead to two consequences namely tortious liability. However the seller in no case would be liable either under tort or under statute. This non compliance by the buyer would not make the seller liable for damages. The fact that the continues to be the registered owner would not make any difference so far as his liability to pay compensation under tort or statute is concerned 27. Similarly section 103A of the Act does not impose any liability on the insurer to indemnify the person who has purchased the vehicle from the insured. It simply allows the insured to apply to the insurer for the transfer of the certificate of insurance in favor of the buyer. The insurer shall be deemed to have transferred the certificate in favor of the buyer if it does not inform the buyer and the sellerabout its refusal to transfer the certificate of insurance within 15 days of receipt of the application. These conditions must be fulfillled to attract the provisions of section 103A of the Act of deemed transfer of the certificate of insurance 28. In Rogerson v. Socttish Automobile and General Insurance Co. Ltd.All ER Rep 606a policy of motor insurance which covered claims against the assured for bodily injury further covered the legal liability of the assured in respect of the use by the assured of a car other than the insured car. The assured claimed indemnity against claims by an injured person by his new car. At the time of accident he had sold the car subject matter of the insurance. It was held by the House of Lords that "the policy depended on the hypotheses that there was in fact an insured car and the asured s rights in respect of the car described in the schedule to the policy having ceased when he sold it the subsequent use of the new car was not covered by policy 29. In Peters v. General Accident and Life Assurance Corporation Ltd.4 All ER 628it was held that "when the vendor sold the car the insurance policy automatically lapsed Indian Kanoon Anand Sarup Sharma vs P.P. Khurana And Others on 28 September 1988 30. Besides the Division Bench decision of this court in Vimal Rai s cases44 Comp Case 316 the Punjab and Haryana High Court in Precto Pipe v. National Insurance Co. Ltd.ACJ 218 and Labh Singh v. Sunehri DeviACJ 170 65 Comp 273the Calcutta High Court in National Insurance Company Ltd. v. Labanya RayACJ 720 the Orissa High Court in South India Insurance Co. Ltd. v. Purna Chandra Misra the Full Bench of the Gujarat High Court in Shantilal Mohanlal v. Aher Bawanji Maldev the Madras High Court in Govind Singh v. A. S KailasamACJ 215 the Mysore High Court in B. P. Venkatappa Setty v. B. N. Lakshmisah 1973] ACJ 306 the Bombay High Court in Smt. Gulab Bai Damodar Tapse v. Peter K. Sunder 1975] ACJ 100 and the Rajasthan High Court in Automobiles TransportPvt. Ltd. v Dewalal had taken the same view 31. A contrary view was taken by a learned single judge of the Madhya Pradesh High Court in Mohammad Ramzan v. SharyfanabiACJ 445. But it is clear from the judgment that the earlier decision of the Division Bench of the said High Court was not brought to the notice of the court. A Full Bench of the Andhra Pradesh High Court took a contrary view in Kondaiah s case 1986] 60 Comp Case 762 as noted earlier. The Rajasthan High Court also took a contrary view in Santosh Rani v. Sheela RaniACJ 299 and New India Assurance Co. Ltd. v. Avinash65 Comp0 Case 404 and the Madhya Pradesh High Court in Sama v. YusuAll ER Rep 112 the policy contained an extension clause. It covered the insured while he was temporarily assign another car. During the continuance of the policy the insured sold the car the subject matter of insurance. It was held that the policy indemnified the insured in respect of the ownership and user of the specified car and when he divested himself of his interest in that car the extension clause ceased to have effect 34. Lastly it was argued by learned counsel for the appellant that the plea that the insured had sold the vehicle and had no insurable right and consequently the insurance company was not liable to Indian Kanoon Anand Sarup Sharma vs P.P. Khurana And Others on 28 September 1988 pay the award amount was not available to the insurance company. The insurance company argued the learned counsel could raise defenses provided under section 96(2) only. This is not one of the defenses and could not be raised 35. Section 96(2) of the Motor Vehicles Act no doubt provides that the insurer shall be entitled to defend the action on the grounds mentioned in clausestoit will have to be first proved that the insurer against whom the amount is being claimed had insured the person liable under the decree or the award and that the said insurance certificate was subsisting 37. In British India General Insurance Co. Ltd. v. Caplain Itbar Singh29 Comp Case60 it was held that sub sectionof section 96 gives the insurer the right to be made a party to the suit and to defend it. Sub sectionclearly provides that such as insurer is not entitled to take any defense which is not specified in it. It can raise those defenses which are provided in that section However section 96(2) in our opinion proceeds on the premise that there is a valid subsisting insurance policy. The insurer in our view could raise defense that the policy comes to an end on the transfer of the vehicle subject matter of insurance 38. For the reasons recorded above our answer to the question referred to the Full Bench is that the change of ownership of a vehicle puts at end to the contract of the insurance policy. The third party liability of the insurance company comes to an end on the transfer of the vehicle by the insured to 39. Reference is accordingly answered Indian Kanoon

A settlement between the employer and workman otherwise than in the course of conciliation proceeding shall be binding: High Court of Delhi

Upon a settlement being entered into, parties may place the same before the forum concerned and the same can be recorded, upon the Court being satisfied that the terms are legal, just and fair. A settlement under Section 18(1) would be binding on the parties. Settlements reached before the conciliation officers or boards are specifically dealt with by sections 12(2) and 13(3) and the same are made binding under section 18 and the same was upheld by High Court of Delhi through the learned bench led by Justice Prathiba M. Singh in the case of M/S WEARWELL (INDIA) PRIVATE LIMITED vs. RAJU [W.P.(C) 2184/2022] on 04.02.2022. The facts of the case are that the Respondent/Workman employed with the Petitioner/Management. The Management claims that it had placed the Workman under suspension and a charge sheet was issued. However, the claim of the Workman was that he was terminated by the Management on 18th December 2017. The Workman then approached the Conciliation Officer under the Industrial Disputes Act, 1947 wherein he along with 21 other workmen, entered into a settlement with the Management. However, disputes thereafter arose in respect of the amount payable as per the terms of the said settlement entered into before the Conciliation officer. The Petitioner has therefore, approached the Appellate Court by way of an appeal under Section 17 of the Act. The petitioner’s counsel submitted that during the pendency of the said appeal, the parties entered into a settlement as per which the Respondent/Workman agreed to accept a lumpsum amount to settle the said dispute. It was further submitted that Section 18(1) of the Industrial Disputes Act, 1947 shows that a settlement can be arrived at between the parties otherwise than in the course of conciliation. The respondent’s counsel contended that since the Workman did not confirm the settlement agreement, the settlement cannot be recorded by the Court. Since the Workman affixed his signature to the settlement agreement and has also encashed the cheque issued by the Management, the Court found no reason as to why the settlement should not be taken note of and recorded. The Court observed that “A settlement arrived at by agreement between the employer and workman otherwise than in the course of conciliation proceeding shall be binding on the parties to the agreement.  Upon a settlement being entered into, parties may place the same before the forum concerned and the same can be recorded, upon the Court being satisfied that the terms are legal, just and fair. A settlement under Section 18(1) would be binding on the parties. Settlements reached before the conciliation officers or boards are specifically dealt with by sections 12(2) and 13(3) and the same are made binding under section 18.”

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

Non lodging of FIR cannot be the circumstance against the witness examined by the employer: Supreme Court of India

The initiation of criminal proceedings against an employee or not initiating the proceedings has no bearing to prove misconduct in departmental proceedings. Therefore, an order of removal from service cannot be said to be unfair and unjust in any manner which would warrant an interference at the hands of the Tribunal and the High Court. This was observed by Hon’ble Hemant Gupta, J in the matter of Uttar Pradesh State Road Corporate Foundation v. Gajadhar Nath – [Civil Appeal No. 7536 of 2021]. The order passed by the High Court of Allahabad is the subject matter of challenge in the present appeal at the instance of the employer whereby the order passed by the Industrial Tribunal was not interfered with. The Tribunal had directed that the respondent be reinstated in service and ordered 50% of the salary to be paid for the period when he was not in employment. In this case, a workman was removed from service as conductor on account of misconduct. He raised an industrial dispute, which was referred to the Tribunal. The Tribunal returned a preliminary finding that the domestic inquiry conducted into the charges levelled against the workman in question was not fair and proper. Therefore, the employer led evidence by examining an Assistant Traffic Inspector who had conducted inspection of the vehicle. The said witness supported the report submitted by him to the Assistant Regional Manager. He deposed that he checked the bus at Katra when the bus was coming from Banda to Allahabad. All the 17 passengers in the bus had stated that they had given the money but the conductor did not issue even a single ticket. He also deposed that when he tried to record the statement of the passengers, the conductor misbehaved with him and used unruly words which he could not state even before the Court. The learned counsel for the appellants-employer contended that the Indian Evidence Act, 18729 applies to all judicial proceedings in or before any Court. Since the domestic inquiry is not by a Court, therefore, strict rules of the Evidence Act are not applicable to such domestic inquiry. Reliance is placed upon a three-Judge Bench of this Court reported as State of Haryana & Anr. v. Rattan Singh and on a judgment reported as U.P. State Road Transport Corporation v. Suresh Chand Sharma, wherein the Supreme Court had set aside the order of the High Court wherein the writ petition was allowed holding that the passengers without tickets have not been examined and cash with the employee was not checked. The learned counsel for the respondent-workman argued that the statement of the Inspector does not inspire confidence as he had not recorded the names and addresses of the passengers. It is not the case of the workman that the passengers were required to be examined but at least there should have been some evidence that there were passengers who were found travelling without any ticket. Since the basic evidence is not available on record, therefore, the finding of the Tribunal cannot be said to be illegal or unwarranted which was rightly not interfered with by the High Court. Supreme court after perusing the facts and arguments presented, held that- “We find that the order of the Tribunal and that of the High Court are clearly erroneous and not sustainable in law. The representative of the employer has not been cross-examined on the question that he has not inspected the bus. He has deposed that when he tried to record the statements of the passengers, the conductor misbehaved with him and used unruly words. Even that part of the statement has not been disputed in the cross-examination. Therefore, the fact that the Inspector was not able to record the names and addresses of the passengers cannot be said to be unjustified. Since the passengers are low-fare paying passengers, they might have been hesitant to get involved in the issues of any action against the conductor. The Inspector had found that 17 passengers were not issued tickets and such statement of the Inspector has also not been disputed in the cross-examination. The Tribunal or the High Court could not reject the evidence led by the employer in respect of misconduct of the workman before the adjudicator. Still further non lodging of FIR cannot be the circumstance against the witness examined by the employer. The initiation of criminal proceedings against an employee or not initiating the proceedings has no bearing to prove misconduct in departmental proceedings. Therefore, we find that the order of removal from service cannot be said to be unfair and unjust in any manner which would warrant an interference at the hands of the Tribunal and the High Court. The reasons recorded by the Tribunal are absolutely perverse and not supported by any evidence.” Click here to read Judgment

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7536 OF 2021 ARISING OUT OF SLPNO. 12369 OF 2021 UTTAR PRADESH STATE ROAD TRANSPORT .....APPELLANT(S JUDGMENT HEMANT GUPTA J The order dated 20.1.2021 passed by the High Court of Allahabad is the subject matter of challenge in the present appeal at the instance of the employer whereby the order dated 22.10.2008 passed by the Industrial Tribunal1 was not interfered with. The Tribunal directed that the respondent2 be reinstated in service and ordered 50% of the salary to be paid for the period when he was not in employment The workman was removed from service as conductor on account of misconduct on 14.12.2001. He raised an industrial dispute For short the ‘Tribunal’ For short the ‘workman’ which was referred to the Tribunal. On 5.5.2008 the Tribunal returned a preliminary finding that the domestic inquiry conducted into the charges levelled against the workman in question was not fair and proper. Therefore the employer led evidence by examining Sheshmani Mishra an Assistant Traffic Inspector3 who had conducted inspection of the vehicle on 12.11.1998. The said witness supported the report submitted by him to the Assistant Regional Manager as Ex.P 10. He deposed that he checked the bus at Katra when the bus was coming from Banda to Allahabad. All the 17 passengers in the bus had stated that they had given the money but the conductor did not issue even a single ticket. Thus the Inspector concluded that all the passengers were without ticket. He also deposed that when he tried to record the statement of the passengers the conductor misbehaved with him and used unruly words which he could not state even before the Court. In the cross examination he deposed that his report was dated 13.11.1998 and that such report does not bear the signature of driver or the conductor. Further no statement of any of the passengers was filed. The learned Tribunal considering the said statement set aside the order of removal inter alia holding that the Inspector should have recorded the statements of passengers who have been found travelling without ticket and if they had shown reluctance in recording their statements at least their oral statements names For short the ‘Inspector’ and addresses must have been submitted. The Tribunal also returned a finding that the Inspector was not proved to have inspected the bus on 12.11.1998. It was also observed that if the conductor had misbehaved with the Inspector why an FIR was not recorded in the concerned police station. On these grounds the learned Tribunal set aside the order of removal. The scope of an adjudicator under the Industrial Disputes Act 19474 may be noticed. The domestic inquiry conducted can be permitted to be disputed before the Tribunal in terms of Section 11A of the Act. This Court in a judgment reported as Workmen of M s Firestone Tyre and Rubber Co. of IndiaLtd. v Management & Ors.5 held that in terms of Section 11A of the Act if a domestic inquiry has been held and finding of misconduct is recorded the authorities under the Act have full power and jurisdiction to reappraise the evidence and to satisfy themselves whether the evidence justifies the finding of misconduct. But where the inquiry is found to be defective the employer can lead evidence to prove misconduct before the authority. This Court held “32. From those decisions the following principles broadly emerge : 1) The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions but if a dispute is referred to a Tribunal the latter has power to see if action of the employer is justified For short the ‘Act’ 1 SCC 813 Before imposing the punishment an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders if applicable and principles of natural justice. The enquiry should not be an 3) When a proper enquiry has been held by an employer and the finding of misconduct is plausible conclusion flowing from the evidence adduced at the said enquiry the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimisation unfair labour practice or mala fide 4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective the Tribunal in order to satisfy itself about the legality and validity of the order had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action and it is open to the employee to adduce evidence 5) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter on the evidence adduced before it has to decide for itself whether the misconduct alleged is proved. In such cases the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no 6) The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only if no enquiry has been held or after the enquiry conducted by an employer is found to be defective 7) It has never been recognised that the Tribunal should straightway without anything more direct reinstatement of a dismissed or discharged employee once it is found that no domestic enquiry has been held or the said enquiry is found to be defective An employer who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action should ask for it at the appropriate stage. If such an opportunity is asked for the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct 9) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimisation 10) In a particular case after setting aside the order of dismissal whether a workman should be reinstated or paid compensation is as held by this Court in The Management of Panitole Tea Estate v. The Workmen 1971 1 SCC 742 within the judicial decision of a Labour Court or The question as to whether the employer is required to seek liberty to prove misconduct in the written statement or could lead evi dence at a later stage was considered by a Constitution Bench of this Court in a judgment reported as Karnataka State Road Transport Corporation v. Smt. Lakshmidevamma & Anr.6 Therein this Court was examining a conflict if any between two judgments reported Shambhu Nath Goyal v. Bank of Baroda Ors.7 and Rajendra Jha v. Presiding Officer Labour Court Bokaro Steel City District Dhanbad & Anr.8. The majority opinion of the Court noticed that the right of a management to lead evidence before the Labour Court or the Industrial Tribunal in AIR 2001 SC 2090 4 SCC 491 1984 Supp. SCC 520 justification of its decision under consideration by such Tribunal or Court is not a statutory right. This is actually a procedure laid down by this Court to avoid delay and multiplicity of proceedings in the disposal of disputes between the management and the workman. “17. Keeping in mind the object of providing an opportunity to the management to adduce evidence before the Tribunal Labour Court we are of the opinion that the directions issued by this court in Shambhu Nath Goyal s case need not be varied being just and fair. There can be no complaint from the management side for this procedure because this opportunity of leading evidence is being sought by the management only as an alternative plea and not as an admission of illegality in its domestic inquiry. At the same time it is also of advantage to the workmen inasmuch as they will be put to notice of the fact that the management is likely to adduce fresh evidence hence they can keep their rebuttal or other evidence ready. This procedure also eliminates the likely delay in permitting the management to make belated application whereby the proceedings before the Labour Court Tribunal could get prolonged. In our opinion the procedure laid down in Shambhu Nath Goyal s case is just and fair 18. There is one other reason why we should accept the procedure laid down by this Court in Shambhu Nath Goyal s case. It is to be noted that this judgment was delivered on 27th of September 1983. It has taken note of almost all the earlier judgments of this Court and has laid down the procedure for exercising the right of leading evidence by the management which we have held is neither oppressive nor contrary to the object and scheme of the Act. This judgment having held the field for nearly 18 years in our opinion the doctrine of stare decisis require us to approve the said judgment to see that a long standing decision is not unsettled without strong cause.” Now on merits keeping in view the principles of law learned counsel for the appellants employer contended that the Indian Evidence Act 18729 applies to all judicial proceedings in or before any Court. Since the domestic inquiry is not by a Court therefore For short the ‘Evidence Act’ strict rules of the Evidence Act are not applicable to such domestic inquiry. Reliance is placed upon a three Judge Bench of this Court reported as State of Haryana & Anr. v. Rattan Singh10 wherein in respect of a conductor who was found to have not issued tickets this Court held as under “4. It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books although we have been taken through case law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course fairplay is the basis and if perversity or arbitrariness bias or surrender of independence of judgment vitiate the conclusions reached such finding even though of a domestic tribunal cannot be held good. However the courts below misdirected themselves perhaps in insisting that passengers who had come in and gone out should be chased and brought before the tribunal before a valid finding could be recorded. The ‘residuum’ rule to which counsel for the respondent referred based upon certain passages from American Jurisprudence does not go to that extent nor does the passage from Halsbury insist on such rigid requirement. The simple point is was there some evidence or was there no evidence — not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Viewed in this way sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the court to look into because it amounts to an error of law apparent on the record. We find in this case that the evidence of Chamanlal Inspector of the Flying Squad is some evidence which has relevance to the charge levelled 10 2 SCC 491 against the respondent. Therefore we are unable to hold that the order is invalid on that ground.” In a judgment reported as U.P. State Road Transport Corporation v. Suresh Chand Sharma11 this Court set aside the order of the High Court wherein the writ petition was allowed holding that the passengers without tickets have not been examined and cash with the employee was not checked. This Court relied upon the judgment of this Court in Rattan Singh and found that the punishment of dismissal from service was not disproportionate to the proved delinquency of the employee. The Division Bench of the Allahabad High Court to which the learned Single Bench was bound in a judgment reported as U.P State Road Transport Corporation through M.D. & Ors. v Rajendra Prasad12 allowed the appeal of the employer wherein the Tribunal returned a finding that 16 passengers who were without tickets at the time of inspection were not examined Therefore the punishment order was set aside being in contravention of the principles of natural justice. The Division Bench of the High Court held as under “24. In view of the above we find no substance in the argument raised by the learned counsel for the claimant respondent to the effect that the passengers were required to be examined during enquiry and accordingly we hold that the finding with regard to examination of passengers given by the Tribunal is perverse being contrary to the Law and being so is unsustainable. It is also for the reason that the enquiry officer after examining the witnesses including claimant respondent held that the 11 6 SCC 555 12 2019 SCC OnLine All 5152 charge levelled against the claimant respondent found 37. Further in the present case claimant respondent Rajendra Prasad is a conductor of the bus and he was entrusted with the duty to collect the ticket from the passengers travelling in the bus and deposit the same with the Corporation however in the present case from the material on record the position which emerges out is to the effect that he collected the fair from 16 passengers persons but did not deposit the same.” 10. On the other hand learned counsel for the respondent workman argued that the statement of the Inspector does not inspire confidence as he had not recorded the names and addresses of the passengers. It is not the case of the workman that the passengers were required to be examined but at least there should have been some evidence that there were passengers who were found travelling without any ticket. Since the basic evidence is not available on record therefore the finding of the Tribunal cannot be said to be illegal or unwarranted which was rightly not interfered with by the High Court. 11. We find that the order of the Tribunal and that of the High Court are clearly erroneous and not sustainable in law. The representative of the employer has not been cross examined on the question that he has not inspected the bus on 12.11.1998. He has deposed that when he tried to record the statements of the passengers the conductor misbehaved with him and used unruly words. Even that part of the statement has not been disputed in the cross examination. Therefore the fact that the Inspector was not able to record the names and addresses of the passengers cannot be said to be unjustified. Since the passengers are low fare paying passengers they might have been hesitant to get involved in the issues of any action against the conductor. The Inspector had found that 17 passengers were not issued tickets and such statement of the Inspector has also not been disputed in the cross examination. The Tribunal or the High Court could not reject the evidence led by the employer in respect of misconduct of the workman before the adjudicator. Still further non lodging of FIR cannot be the circumstance against the witness examined by the employer. The initiation of criminal proceedings against an employee or not initiating the proceedings has no bearing to prove misconduct in departmental proceedings. Therefore we find that the order of removal from service cannot be said to be unfair and unjust in any manner which would warrant an interference at the hands of the Tribunal and the High Court. The three reasons recorded by the Tribunal are absolutely perverse and not supported by any evidence. The Tribunal had misapplied the basic principles of law and the High Court has thereafter wrongly confirmed the order. Consequently the appeal is allowed. The orders of the High Court and of the Tribunal are set aside. The order of punishment dated 14.12.2001 is hereby restored NEW DELHI DECEMBER 8 2021

Written dying declaration is preferred over oral dying declaration in case there is any conflict between the two of them: Chhattisgarh High court

Dying declaration in writing when issued by Executive Magistrate without any pressure, the written dying declaration holds a much higher evidentiary value than the oral dying declaration. A single-judge bench comprising of Justice Arvind Singh Chandel adjudicating in the matter of Sanjay Sahu v. State of Chhatisgarh (CRIMINAL APPEAL No.222 of 2021) In the present case, the Appellant was convicted under section 306 of IPC and was granted Rigorous Imprisonment for 3 years and a fine of Rs.2,000/-. The Appellant and deceased marriage was solemnized 3 years before the death of the deceased. After 1 year of marriage, cruelty was inflicted upon the deceased by her husband and mother-in-law. 1 week before the incident the Deceased (Mainabai) left her matrimonial and went to her paternal house and narrated the entire about the disputes she was facing in her matrimonial house. Thereafter the family members of the Appellant brought her back to their matrimonial home, but on 06.06.1999 another dispute took place between the couple, and the deceased poured kerosene on herself and set herself on fire. She was immediately taken to the District hospital in Durg and again to sector-9 Hospital, Bhilai for better treatment but she succumbed to death due to her injuries on 11.06.1999. Based on the written complaint and the complaint lodged by the deceased’s father, the police filed an FIR against the Appellant and was implicated of the charges. The Appellant denied the guilt and pleaded innocence. He stated that there was a cordial relationship between the couple and her death was accidental. The trial court acquitted the mother-in-law and sentenced the Appellant under the charges. The Appellant in this appeal has argued that the order of conviction passed against him was passed without sufficient evidence and also argued that the prosecution has suppressed the dying declaration which says that the incident was accidental and did not submit it along with the charge-sheet. He also asserts that the statement made by the parents of the deceased based on oral dying declaration is a weak evidence whereas a written dying declaration possesses a much higher evidentiary value and also when the written dying declaration was issued by the Executive Magistrate, the deceased was under no coercion. And hence the findings of the Trial court are not in accordance with the law and even if the deceased committed suicide there was no evidentiary record to show that Mainabai was instigated or abetted to commit suicide as defined under Section 107 of the Indian Penal Code. The Respondent denied all the claims of the Appellant and controverted that the conviction was strictly in accordance with the law. It cannot be said that the document was suppressed by the prosecution and the Appellant cannot gain any benefit out of this. The court relied upon Gangula Mohan Reddy v. State of Andhra Pradesh, M. Mohan v. State & Samadhan Khudaka Koli case and upon a prudent consideration of all the evidence, witnesses, and minute details of the present case, the court concluded that both sides presented evidence regarding the dying declaration were contradictory to each other. The Declaration recorded by the Executive Magistrate was made under no pressure and since the magistrate and according to the prosecution witnesses have stated that when they had gone to the District Hospital to see the deceased, at that time, the deceased had given an oral dying declaration that while taking tea a dispute had taken place with the Appellant and due to quarrels being taken and she being beaten daily she got harassed and poured kerosene on her and set herself on fire. According to the case of the prosecution, the deceased died on 11.6.1999, and one day before, i.e., on 10.6.1999, the father of the deceased made a written complaint and in such complaint, no fact is mentioned that the deceased has made any such statements before the Prosecution witnesses. But the contents in written dying declarations cannot be ruled out. The court also stated that” material ingredients of the offence under Section 306 of the Indian Penal Code are missing in this case because from the evidence of the prosecution itself it is well established that there was cordial relation between the Appellant and the deceased till 1 year from their marriage. Till that time, there was no complaint by the deceased.” Also the parents of the deceased stated that the quarrels usually takes place in every houses and, therefore, they did not make any complaint. From the statements of the parents , “it also appears that whenever the father of the deceased visited the matrimonial house of the deceased, he was given proper respect there and on all those occasions, the deceased never made any complaint of her being subjection to ill-treatment or marpeet with her. Moreover, immediately after the incident, the Appellant took the deceased to the District Hospital, Durg and thereafter for better treatment he took her to Sector-9 Hospital, Bhilai. There is no evidence on record to show that the Appellant had been continuously ill-treating the deceased or committing marpeet with her or subjecting her to harassment. Therefore, material ingredient of the offence, i.e., instigation as defined under Section 107 of the Indian Penal Code is missing in this case. Thus, the finding of the Trial Court is not in accordance with law and the evidence available on record. The Appellant is entitled to get benefit of doubt.”

HIGH COURT OF CHHATTISGARH BILASPUR Criminal Appeal No.2202 Judgment Reserved on : 19.3 . 2021 Judgment Delivered on : 24.5.2021 Sanjay Sahu son of Dehul Ram Sahu aged about 24 years resident of Village Parana P.S. Arjunda District Durg Chhattisgarh State of Chhattisgarh Appellant Respondent For Appellant Shri N.S. Dhurandhar Advocate Shri Roshan Dubey Panel Lawyer Hon ble Shri Justice Arvind Singh Chandel C.A.V. JUDGMENT This appeal is directed against the judgment dated 12.2.2002 passed by the Special Judge and Additional Sessions Judge Durg in Sessions Trial No.1400 whereby the Appellant has been convicted and sentenced as under: Under Section 306 of the Indian Penal Rigorous Imprisonment for 3 years and fine of Rs.2 000 with default According to the case of prosecution the Appellant is husband of Mainabaiwas lodged by her father Sureshwas also lodged On the basis of morgue inquiry and written complaintFirst Information Report was registered. Post mortem examination over the dead body of Mainabai was conducted. Post mortem report is Ex.P3 according to which deceased Mainabai had sustained 85% burn injuries and cause of her death was shock Inquest proceedingwas conduct. Statements of witnesses were recorded under Section 161 of the Code of Criminal Procedure. On completion of the investigation a charge sheet was filed. The Trial Court framed charges against the Appellant and co accused Jaiwanbai. To bring home the offence the prosecution examined as many as 15 witnesses. Statements of the Appellant and co accused were also recorded under Section 313 of the Cr.P.C. in which they denied the guilt pleaded innocence and false implication. It was the defence of the Appellant that there was cordial relation between him and his wife deceased. Her death was accidental. During the course of treatment in the hospital after obtaining a certificate of fitness of Mainabai to make statement her written dying declaration Ex.D2) was also recorded by an Executive Magistrate. In his defence the Appellant has examined two witnesses namely Dr V.K. Sao who gave the fitness certificate as Defence Witness No.1 and Naib Tahsildar Executive Magistrate U.S. Agrawal who recorded the written dying declarationas Defence Witness No.2. On completion of the trial the Trial Court acquitted co accused Jaiwanbai of the charge framed against her under Section 306 read with Section 34 of the Indian Penal Code but convicted and sentenced the Appellant as mentioned in 1st paragraph of this judgment. Hence this appeal. Learned Counsel appearing for the Appellant argued that without there being sufficient and clinching evidence on record against the Appellant the Trial Court has convicted him. It was further argued that immediately after the incident the Appellant took injured Mainabai to District Hospital Durg and thereafter for her better treatment took her to Sector 9 Hospital Bhilai. On 6.6.1999 itself Executive Magistrate U.S. Agrawalafter obtaining a fitness certificate from Dr. V.K. Sao recorded written dying declarationof injured Mainabai. But the prosecution has suppressed this fact and did not submit the said written dying declarationalong with the charge sheet. According to the contents of the written dying declarationthe incident was accidental. Injured Mainabai died on 11.6.1999. Between 6.6.1999 and 11.6.1999 injured Mainabai did not make any complaint that she was put under pressure for making the said written dying declarationhas a higher evidentiary value. Executive Magistrate U.S. Agrawal had nothing to do with injured Mainabai or the accused persons. He recorded what was said by Mainabai. Ex.D2 is a vital material document which was suppressed by the prosecution by not filing it along with the charge sheet. The Investigating Officer did not make a fair investigation Oral dying declaration as stated by Suresh and Sushila PW5) father and mother of deceased Mainabai respectively is a weak type of evidence. Therefore finding of the Trial Court in this regard is not in accordance with law. It was further argued that even if for the sake of argument it is considered to be true that the death was suicidal there is no evidence on record to show that Mainabai was instigated or abetted to commit suicide as defined under Section 107 of the Indian Penal Code. Therefore also conviction of the Appellant is not sustainable. In support of his contention Learned Counsel placed reliance on a judgment of this Court in Criminal Appeal No.7113rendered on 8.11.2017. He also relied on 2008) 16 SCC 705 of the woman harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.” Dealing with the similar issue in11 SCC 205it has been observed by the Supreme Court as In our opinion the view taken by the High Court is correct. It often happens that there are disputes and discords in the matrimonial home and a wife is often harassed by the husband or her in laws. This however in our opinion would not by itself and without something more attract Section 306 IPC read with Section 107 IPC. However in our opinion mere harassment of wife by husband due to diferences per se does not attract Section 306 read with Section 107 IPC if the wife commits suicide. Hence we agree with the view taken by the High Court. We however make it clear that if the suicide was due to demand of dowry soon before her death then Section 304 B IPC may be attracted whether it is a case of homicide or suicide. 5 SCC 207 Satvir Singh v. State of Punjab 8 SCC 633 and Shanti v. State of Haryana 1 SCC 371.)” Further it has been observed by the Supreme Court in AIR 2010 SC 327as “20. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in conviction cannot be committing suicide The intention of the Legislature and the ratio of the cases decided by this court is clear that in order to convict a person under section 306 IPC there has to be a clear mens rea to commit the ofence. It also reuuires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he In 3 SCC 626 the Supreme Court by the following observation has clearly held that in order to convict a person under Section 306 of the IPC there has to be a clear mens rea to commit the offence: “45. The intention of the legislature and the ratio of the cases decided by this Court are clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the ofence. It also reuuires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he she With regard to a dying declaration in Samadhan Khudaka Koli case supra) it is observed by the Supreme Court as under: “12. A dying declaration made before a Judicial Magistrate has a higher evidentiary value. The Judicial Magistrate is presumed to know how to record a dying declaration. He is a neutral person Why the prosecution had suppressed the dying declaration recorded by the Judicial Magistrate is not known. Prosecution must also be fair to the accused. Fairness in investigation as also trial is a human right of an accused. The State cannot suppress any vital document from the court only because the same would support the case of the 13. The learned Sessions Judge as also the High Court in our opinion committed a serious illegality in refusing to consider the said uuestion in its proper perspective. The prosecution did not explain as to why the said dying declaration was not brought before the court. The learned Sessions Judge as also the High Court surmised about the contents thereof. Not only the contents of a dying declaration but also the manner in which it is recorded and the details thereof play a significant role in the matter of appreciation of evidence.” In the light of above enunciation of law I shall now discuss the evidence available on record of the present case. It is not in dispute that marriage between the Appellant and Mainabai deceased) was solemnised 3 years prior to the incident. It is also not in dispute that Mainabai was brought to the District Hospital Durg by the Appellant on 6.6.1999. Thereafter she was brought to Sector 9 Hospital Bhilai for better treatment. There during the course of treatment she died on 11.6.1999. According to the post mortem reportand the opinion given therein by Autopsy Surgeon Dr. P.C. DeshmukhMainabai had sustained 85 burn injuries and cause of her death was shock Sureshand Sushilafather and mother of deceased Mainabai respectively have deposed that till about 1 year after the marriage of the Appellant and Mainabai Mainabai was living at her matrimonial house happily. According to the Court statement of Sureshthe Appellant was in the habit of consuming liquor and was also committing marpeet with Mainabai saying her that she was not fit for him. He has further deposed that 1 week before the incident Mainabai had run out of her matrimonial house and come to his house. At that time she had told him that the Appellant and her mother in law used to beat her. Thereafter when family members of the matrimonial house of Mainabai came to his house this witness sent Mainabai back to her matrimonial house. 1 day thereafter he came to know that Mainabai had burnt. He went to the District Hospital Durg and saw there that Mainabai had burnt According to this witness Mainabai told him in the hospital that as a result of the harassment due to marpeet being committed with her daily she poured kerosene on her and set herself on fire. This witness has further deposed that he made written complaint Ex.P4) in Police Station Arjunda. In his cross examination this witness has admitted that whenever he visited the matrimonial house of the deceased the Appellant and his family members gave him proper respect and whenever he asked to send back the deceased with him to her paternal house they sent her with him He has further admitted that the deceased had run out of her matrimonial house once only and had made a complaint of marpeet with her. Since such quarrels took place in every houses he did not make any report. This witness has further admitted that it is the Appellant who had taken the deceased to the District Hospital Durg and thereafter to Sector 9 Hospital Bhilai and the Appellant himself borne all the expenses of treatment of the deceased Sushila mother of the deceased has deposed that the deceased had come to her maternal house after 1 year of her marriage and at that time she had told her that whenever she had been returning late after fetching water her mother in law used to suspect on her character and on this issue the Appellant used to commit marpeet with her. This witness has further deposed that at that time the deceased stayed at her maternal house for 8 days and thereafter she returned to her matrimonial house. Thereafter this witness came to know that the deceased set herself on fire. This witness has further deposed that after getting information she went to see the deceased. At that time the deceased told her that on the date of incident a serious quarrel had taken place with her mother in law. At that time the Appellant came and asked her to prepare tea for him and herself. At that time the Appellant told her that when she had gone to her maternal house in anger at that time he was feeling happy. The Appellant also told her that why does not she die and he further told that the person going to die does not take tea. On this she poured kerosene on her and set herself on fire. This witness has also admitted the fact that no quarrel took place between the Appellant and the deceased for about 1 year after their marriage. Whenever husband of this witnesswent to the matrimonial house of the deceased to take her back to her paternal house he was given proper respect there. This witness has further admitted that quarrels were taking place only on the dispute of fetching water This witness has further admitted that such kind of dispute takes place in every houses. She has further admitted that on the date of incident also the dispute between the Appellant and the deceased had taken place for preparing tea. She has further admitted that after the incident it was the Appellant who brought the deceased to the hospital for treatment and all the expenses of her treatment were borne by him. She has further admitted that in the hospital the deceased had given a statement before the Executive Magistrate that she burnt while preparing tea Punitramwho was a teacher of the deceased has deposed that 1 week prior to the incident the deceased had run out of her matrimonial house and came to her maternal house. At that time she had come to his house also to meet him. At that time she had told him that her husband Appellant and mother in law suspect on her character and abuse her. This witness has further deposed that when they had gone to the District Hospital Durg police officials had inquired from the deceased. At that time first the deceased had told them that she burnt while preparing tea. On being asked again politely the deceased told them that while taking tea a quarrel had taken place between her and the Appellant. On this she told the Appellant that he always abuses her and commits marpeet with her therefore she will die. On this the Appellant told her that the person going to die does not take tea. If she wants to die she can die. On this she could not control her anger and in anger she poured kerosene on her and set herself on fire According to this witness the deceased also told him that the Appellant had asked her that she should tell that she burnt while burning stove otherwise he will not take her to the hospital for treatment and therefore she had made such statement. During cross examination this witness has admitted that when for the first time he met with the deceased in the hospital at that time on being asked by him the deceased had told him that her dying declaration had been recorded in which she had stated that she burnt while preparing tea. This witness has further deposed that when he asked again then the deceased told him that she burnt while preparing tea on stove Dr. V.K. Saohas stated that on on 6.6.1999 an Executive Magistrate had come to record dying declaration of the deceased At that time he was present on duty. On being asked by the Executive Magistrate he had examined the deceased and found that she was fully fit to make statement and therefore he had given a fitness certificate in this regard. This witness has denied the suggestion that at the time of recording of the dying declaration of the deceased her relatives were present there. This witness has further denied the suggestion that he gave the fitness certificate under pressure of the relatives of the deceased Executive Magistrate Naib Tahsildar U.S. Agrawalhas also deposed that on 6.6.1999 he had gone to the District Hospital Durg for recording dying declaration of the deceased. At that time he saw that the deceased was in a condition to make statement Thereafter he obtained a fitness certificate in this regard from the doctor and thereafter he recorded dying declarationof the deceased. According to the contents of the dying declaration Ex.D2) on 6.6.1999 at 4:00 p.m. the deceased was preparing tea on a stove at her matrimonial house. At that time a burning chimney kept on her back on a height fell over her as a result of which fire caught her clothes and she burnt. Executive Magistrate U.S. Agrawalhas further deposed that on being asked by him the deceased told that nobody set her on fire and there was cordial relation between her and the Appellant and mother in law. On a minute examination of the above evidence I find that there are two sets of evidence regarding dying declaration. One is the statement declaration made before Executive Magistrate U.S. Agrawaland other is the oral dying declaration made by the deceased before her father Sureshmother Sushila PW5) and her one teacher Punitramrecorded by Executive Magistrate U.S. Agrawalit is evident that before recording such statement he had duly obtained a fitness certificate from the doctor regarding mental fitness of the deceased to make a statement. Deputy Superintendent of Police S. Bramhehas also admitted the fact that on 6.6.1999 the Executive Magistrate had recorded dying declaration of the deceased. However the dying declarationrecorded by the Executive Magistrate could not be filed by the Investigating Officer along with the charge sheet. Sushila mother of the deceased has also admitted the fact that in the District Hospital the deceased had made a statement before the Executive Magistrate that she burnt while preparing tea. Both Dr. V.K. Saoand Executive Magistrate U.S. Agrawal were government servants. They had no relation with the Appellant or the deceased Therefore there is no reason to believe that the dying declaration Ex.D2) was recorded by the Executive Magistrate under any pressure. Though Suresh Sushila and Punitram PW7) have stated that when they had gone to the District Hospital to see the deceased at that time the deceased had given an oral dying declaration that while taking tea a dispute had taken place with the Appellant and due to quarrels being taken and she was being beaten daily she got harassed and poured kerosene on her and set herself on fire. According to the case of prosecution the deceased died on 11.6.1999 and one day before i.e. on 10.6.1999 her father Suresh had made written complaint Ex.P4). But in the written complaintno fact is mentioned that the deceased as discussed above made any such statement before SureshSushilaand PunitramSushila and Punitramdeath of the deceased was accidental. Even if for the sake of argument it is considered that death of the deceased was not accidental and was suicidal material ingredients of the offence under Section 306 of the Indian Penal Code are missing in this case because from the evidence of the prosecution itself it is well established that there was cordial relation between the Appellant and the deceased till 1 year from their marriage. Till that time there was no complaint by the deceased. After 1 year from the marriage when the deceased ran out of her matrimonial house and came to her maternal house for the first time she told about committing of marpeet with her. But both her parents Sureshand Sushilahave admitted that such type of dispute usually takes place in every houses and therefore they did not make any complaint. From the statements of Sureshand Sushilait also appears that whenever Sureshvisited the matrimonial house of the deceased he was given proper respect there and on all those occasions the deceased never made any complaint of her being subjection to ill treatment or marpeet with her. Moreover immediately after the incident the Appellant took the deceased to the District Hospital Durg and thereafter for better treatment he took her to Sector 9 Hospital Bhilai. There is no evidence on record to show that the Appellant had been continuously ill treating the deceased or committing marpeet with her or subjecting her to harassment Therefore material ingredient of the offence i.e. instigation as defined under Section 107 of the Indian Penal Code is missing in this case. Thus the finding of the Trial Court is not in accordance with law and the evidence available on record. The Appellant is entitled to get benefit of doubt. Consequently the appeal is allowed. The judgment under challenge is set aside. The Appellant is acquitted of the charge framed against him. (Arvind Singh Chandel JUDGE Sd

Re-verification of the necessary election process and consider the objection made in the election process before publishing final electoral role – Manipur high court

Re-verification of the necessary election process and consider the objection made in the election process before publishing final electoral role – Manipur high court A writ petition questioning the objection made against the election commission not considering the necessary issue against the election process and false entries in the electoral roll was disposed of by the single bench of HON’BLE MR. JUSTICE AHANTHEM BIMOL SINGH in the case of Khundongbam Raheshwor Singh & 19 Ors versus Union of India & 17 Ors (W.P.(C) No. 993 of 2021) The learned counsel appearing on behalf of the petitioners submitted that at the time of publication of the Electoral Role in respect of Heirok Assembly Constituency, the petitioners have made certain objections regarding the inclusion of underage/minor persons in the Electoral Roll, inclusion of persons who are not residents of the same  Constituency, entry of double names of the same person, etc, and the said objections have not been considered by the Concerned Officers of the Election Commission. It is further submitted that the final publication of the Electoral Role falls on 05.01.2022 and the grievances of the petitioners will be redressed if the Concerned Officer of the Election Commission considers their objections and the process for re-verification of the Electoral Roll. hence prayer is made to consider those objections before the publication of the final electoral roll. The learned counsel appearing for the respondents submits that the publication of the Electoral Roll is an ongoing process and the final publication of the Electoral Role is to be done on or before 05.01.2022 to enable the Election Commission to hold the General Assembly Election of the State of Manipur and Election Commission cannot simultaneously consider all those objections in time and the process of re-verification or dealing with the objection. After considering the submissions from both sides this Court is of the considered view that the present writ petition can be disposed of by directing the respondents No. 2 and 5 to consider the aforesaid representation dated 10.12.2021 and to take the necessary process of re-verification before the publishing of the final Electoral Role and it should be made clear that at the time of consideration of the aforesaid objection, an opportunity of hearing should be given to some of the applicants. Click here to read the judgment

Item No. 19 Through video conferencing) IN THE HIGH COURT OF MANIPUR AT IMPHAL W.P.(C) No. 9921 Versus …. Petitioner s Khundongbam Raheshwor Singh & 19 Ors. Union of India & 17 Ors. HON’BLE MR. JUSTICE AHANTHEM BIMOL SINGH Respondent s Heard Mr. I. Bikramjit learned counsel appearing for the petitioners Mr. W. Darakishwor learned senior panel counsel appearing for the respondent No. 1 and Mr. A. Jagjit learned counsel appearing for the respondents No. 2 to The simple grievance of the petitioners is that at the time of publication of the Electoral Role in respect of Heirok Assembly Constituency the petitioners have made certain objections regarding inclusion of underage minor persons in the Electoral Role inclusion of persons who are not residents of Heirok Assembly Constituency entry of double names of the same person etc however the said objections have not been considered by the Concerned Officers of the Election Commission. The learned counsel appearing for the petitioners submitted that as per the relevant notification the final publication of the Electoral Role falls on 05.01.2022 and the grievances of the petitioners will be redressed if the Concerned Officer of the Election Commission considers their objections and the process for re verification of the Electoral Role in respect of Heirok WP(C) NO. 993 OF 2021 Assemble Constituency is taken up before the final publication of the said Electoral Role. In this regard the learned counsel for the petitioners have drawn the attention of this Court to the representation dated 10.12.2021 submitted by the 11persons who are some of the petitioners herein to the Electoral Registration Officer Heirok Assembly Constituency Thoubal and made a prayer for considering those objections and to take up the re verification process of the Electoral Role in respect of Heirok Assembly Constituency before publication of the final Electoral Role. Mr. A. Jagjit learned counsel appearing for the respondents No. 2 5 submitted that the publication of the Electoral Role is an ongoing process and the final publication of the Electoral Role is to be done on or before 05.01.2022 so as to enable the Election Commission to hold the General Assembly Election of the State of Manipur. The Election Commission is dealing with numerous objections with regards to the Electoral Role in respect of all the different constituencies within the State of Manipur and the Election Commission cannot simultaneously considered all those objections in time and the process of re verification or dealing with the objection required some time. However the learned counsel fairly submitted that the Concerned Officer of the Election Commission will consider the aforesaid objections dated 10.12.2021 submitted by the some of the present petitioners to the Electoral Registration Officer Heirok Assembly Constituency Thoubal District and the necessary re verification process will be taken up before publication of the final Electoral Role. In view of the submissions advanced by the learned counsel appearing for the parties this Court is of the considered view that the present writ petition WP(C) NO. 993 OF 2021 can be disposed of by directing the respondents No. 2 and 5 to consider the aforesaid representation dated 10.12.2021 and to take the necessary process of re verification before publishing of the final Electoral Role. It is made clear that at the time of consideration of the aforesaid objection an opportunity of hearing should be given to some of the applicants if not all who submitted the said objection. With the aforesaid directions the present writ petition is disposed of. A copy of this order be furnished to all the counsel through their whatsapp e mail. JUDGE Sapana WP(C) NO. 993 OF 2021

Technical members, in their position at the board can function without a chairperson: Supreme Court of India.

The technical members, in their position at the board, can function without a chairperson.  The Section 85 of TM Act inter alia stipulates the qualifications for the post of chairperson or vice-chairperson. The relevant provisions of this section reveal that there is no bar for a technical member to be appointed as a regular chairperson, provided she or he has for “at least two years, held the office of a Vice-Chairperson. This assertion was made by the Supreme Court of India presided by J. S. RAVINDRA BHAT, J. HEMANT GUPTA and J. L. NAGESWARA RAO in the case of THE INTERNATIONAL ASSOCIATION FOR PROTECTION OF INTELLECTUAL PROPERTY (INDIA GROUP) vs. UNION OF INDIA [W.P.(C) NO.1431/2019]. In the present case, the applicant (the International Association for Protection of Intellectual Property) had preferred a Writ Petition, which was disposed of by this court along with a batch of other petitions and applications on 27th November 2020, in the judgment reported as Madras Bar Association v Union of India. The applicant seeked extension of the term of the incumbent Chairperson of the board stating that his appointment was made under section 89A of the Trademarks Act, 1999. The applicant urged that Section 184 of the Finance Act, 2017, prescribed the term of office and the conditions of service of Chairperson and members of various tribunals including that of the Board. Section 161 of the Finance Act inserted Section 89A to the TM Act which stipulates that the term of office of appointments to the board after the date of commencement of the Finance Act would be governed by the provisions of the Section 184 of the said Finance Act. The outer limit prescribing the age limit of the chairperson of the board is 70 years, in terms of Section 184. The applicant contend that he was that the Finance Act, 2017 had inserted Section 89A of the TM Act, which states that the tenure of office and maximum age of retirement would be governed by the terms of the said Finance Act and, consequently, the pre-existing tenure and age limits did not apply. The last contention which this court had to deal with was the applicant’s position that the Board cannot function without a judicial member, and that at present, only the incumbent Chairperson is a judicial member, and that if his tenure is not extended by a judicial order, the Board would be unable to function. The honorable court observed, “The submissions of the applicant, in the opinion of this court, are meritless. Section 84 (2) of the TM Act no doubt states that a bench of the board shall consist of a judicial and a technical member. However, it is “subject to other provisions” of the TM Act. Section 84(3) commences with a non obstante clause and stipulates, by Section 84(3)(a) that a chairperson may, ‘in addition to discharging the functions of the Judicial Member or Technical Member of the Bench to which he is appointed, discharge the functions of the Judicial Member or, as the case may be, the Technical Member, of any other Bench.’ Thus, in the absence of any member, the chairperson may, if the occasions so arises, act as technical or judicial member. Section 87 enables a vice-chairperson, or as the case may be the senior-most member of the board to act as chairperson in the event of a vacancy to that position, or in the event of the incumbent’s inability to function in the post. Furthermore, significantly, Section 85 inter alia stipulates the qualifications for the post of chairperson or vice-chairperson. The relevant provisions of this section reveal that there is no bar for a technical member to be appointed as a regular chairperson, provided she or he has for “at least two years, held the office of a Vice-Chairperson”.

IN THE CIVIL ORIGINAL JURISDICTION MISCELLANEOUS APPLICATION NO.2219 2020 IN THE INTERNATIONAL ASSOCIATION FOR PROTECTION OF INTELLECTUAL PROPERTY…APPLICANT(S UNION OF INDIA S. RAVINDRA BHAT J This judgement will dispose of an application by which directions are sought that till a new chairperson of the Intellectual Property Appellate Boardis appointed the incumbentshould continue to function as Chairperson The applicant had preferred a Writ Petition1431 2019) which was disposed of by this court by a judgement along with a batch of other petitions and applications on 27th November 2020 in the judgement reported as Madras Bar Association v Union of India1. The applicant seeks extension of the term of the 1(2020) SCC OnLine SC 962 incumbent Chairperson of the board stating that his appointment was made under section 89A of the Trademarks Act 1999were governed by the parent enactment. Reliance is placed on the relevant extract of the main judgement of this court in this regardas 65 years that is over borne by the provisions of section 89A which states that the terms and conditions hitherto applicable would no longer be so and that in matters of conditions of service and tenure of appointment the provisions of section 184 of the Finance Act would apply. It is contended by senior counsel that the Rules were originally framed with effect from 01.06.2017 under which the present incumbent was appointed. These rules were set aside by Rojer Mathew in which all sitting members and chairpersons of various tribunals were 2Rojer Mathew v. South Indian Bank Ltd. 6 SCC 1 protected till new rules were framed. The Rules framed in 2020 have now been substantially read down or quashed. The clarification that the present incumbent in fact would continue to hold office in spite of attaining the age of 65 years logically flows from the ruling in Madras Bar Associationof the judgement of this court dated 27th November 2020 Learned counsel relied upon the said judgement. It was argued that the orders made by this court during the pendency of that case till final judgment i.e. dated 27th of November 2020 protected the tenures of all incumbent tribunal members and their chairpersons. Specific reliance was placed upon the order dated 16th September 2020 which had extended the tenure of office of all incumbent members of all tribunals to 31st December 2020. The applicant also urged that it is essential that there is continuity and that taking into consideration the workload of the board it is absolutely essential that it is headed by a properly qualified chairperson. The learned senior counsel for applicant particularly relies on Section 84(2) of the TM Act and urges that there can be no bench without a judicial member. It is submitted that at the moment none of the members of the board are judicial appointees but rather are technical members. It is submitted that the board does not even have a Vice Chairman who can in the absence of the Chairperson officiate as the acting Chairperson. Therefore it is imperative that the clarifications and directions sought should be granted The application was opposed on behalf of certain third parties who urge that this court should not grant the relief which the applicant seeks. In this regard it is pointed out that the tenure of office in terms of the order of appointment of the present incumbent to the office of chairperson of the board clearly stipulated that the tenure for which he could continue to serve on the board was till 21 stSeptember 2019 It is contended in this context that the original appointment was made when the incumbent chairperson of the board was holding another office as chairperson of a quasi judicial body. The order of appointment originally made in 2017 no doubt did not indicate a tenure however according to applicable lawthe maximum tenure was 3 years. However that order was amended to specifically read that the order that the appointment would cease upon completion of a specific date The third party objectors also opposed the interpretation given to Section 86 and 89A. It was contended that the change brought about by section 89A was merely to indicate that the tenure of office of the chairperson and members would thenceforthbe in accordance with Section 184 of the Finance Act. It is urged in this context that Section 184 does not ipso facto prescribe or indicate any term of appointment or tenure except to enumerate outer limits of tenure terms and maximum age for members or chairpersons of tribunals to hold office. The legislation leaves the matter to the rules that were to be framed under the said Finance Act. It is submitted in other words that the Act per se does not prescribe any terms but rather indicates outer limits. Since the entire conditions of service including the indicative tenure of office was to be prescribed in respect of each tribunal by the rules even if for a moment the applicant’s contentions were to be understood as meaning that the incumbent was appointed first under the old rules of 2017 his term of office nevertheless ended in September 2019. This was before the judgement in Rojer Matthew was delivered. This court in Rojer Matthew specifically stated that as the then existing rules framed in 2017 were held to be unconstitutional a window of continuing in office in terms of the parent enactment was applicable. It is submitted that in the context of the present incumbent of the board the tenure of office obviously could not have been extended since the outer limit under the parent act was By virtue of the provisions of Part XIV of the Finance Act 2017 25central enactments were amended so that from the appointed date firstly provisions relating to terms and conditions of service of the members of those tribunals were substituted with provisions allowing the Central Government to specify the same with rules under the Finance Act. Secondly eight existing tribunals established under different legislations were abolished and their respective jurisdictions and powers were incorporated into seven existing tribunals reducing the number of tribunals from 26 to19. Thirdly under Section 184 of the Finance Act the Central Government was authorized to frame delegated legislation spelling out the eligibility criteria selection process removal salaries and allowances tenure and other terms and conditions of service for the remaining 19 tribunals Rules 2017 Ruleswas considered in a batch of writ petitions and appeals of which judgment was rendered in Rojer Mathew v South Indian Bank Ltd.which were again questioned in the Madras Bar Association case. The Madras Bar Association case is a sequelby which this court considered and pronounced upon the validity of the 2020 Rules and read down several of them The relevant provisions of the Finance Act 2017 are as follows “Section 161. In the Trade Marks Act 1999— a) for the word "Chairman" or "Vice Chairman" wherever it occurs the word "Chairperson" or "Vice Chairperson" shall be substituted b) in section 83 after the words "under this Act" the words and figures and under the Copyright Act 1957" shall be inserted c) after section 89 the following section shall be inserted namely: — 89A. Notwithstanding anything in this Act the qualifications appointment term of office salaries and allowances resignation removal and other terms and conditions of service of the Chairperson Vice Chairperson and other Members of the Appellate Board appointed after the commencement of Part XIV of Chapter VI of the Finance Act 2017 shall be governed by the provisions of section 184 of that Act Provided that the Chairperson Vice Chairperson and other Members appointed before the commencement of Part XIV of Chapter VI of the Finance Act 2017 shall continue to be governed by the provisions of this Act and the rules made thereunder as if the provisions of section 184 of the Finance Act 2017 had not come into force Sections 183 and 184 occur in Part S of the Finance Act 2017 and read as “S.—CONDITIONS OF SERVICE OF CHAIRPERSON AND MEMBERS OF TRIBUNALS APPELLATE TRIBUNALS AND OTHER AUTHORITIES 183. Notwithstanding anything to the contrary contained in the provisions of the Acts specified in columnof the Eighth Schedule on and from the appointed day provisions of section 184 shall apply to the Chairperson Vice Chairperson Chairman Vice Chairman President Vice President Presiding Officer or Member of the Tribunal Appellate Tribunal or as the case may be other Authorities as specified in columnof the said Schedule: Provided that the provisions of section 184 shall not apply to the Vice Chairman President Vice President Presiding Officer or as the case may be Member holding such office as such immediately before the appointed day. Qualifications terms and conditions of service of Chairperson and Member. Vice Chairperson Chairman Qualifications terms and conditions of service of Chairperson Judicial Member and Expert Member. 184.The Central Government may by notification make rules to provide for qualifications appointment term of office salaries and allowances resignation removal and the other terms and conditions of service of the Chairperson Vice Chairperson Chairman Vice Chairman President Vice President Presiding Officer or Member of the Tribunal Appellate Tribunal or as the case may be other Authorities as specified in columnof the Eighth Schedule: Provided that the Chairperson Vice Chairperson Chairman Vice Chairman President Vice President Presiding Officer or Member of the Tribunal Appellate Tribunal or other Authority shall hold office for such term as specified in the rules made by the Central Government but not exceeding five years from the date on which he enters upon his office and shall be eligible for reappointment: Provided further that no Chairperson Vice Chairperson Chairman Vice Chairman President Vice President Presiding Officer or Member shall hold office as such after he has attained such age as specified in the rules made by the Central Government which shall not a) in the case of Chairperson Chairman or President the age of seventy years b) in the case of Vice Chairperson Vice Chairman Vice President Presiding Officer or any other Member the age of sixty seven years: 2) Neither the salary and allowances nor the other terms and conditions of service of Chairperson Vice Chairperson Chairman Vice Chairman President Vice President Presiding Officer or Member of the Tribunal Appellate Tribunal or as the case may be other Authority may be varied to his disadvantage after his In Rojer Mathew after pronouncing that the 2017 Rules were unsustainable and quashing them with a direction to the Central Government to frame new Rules this court also directed as follows 224. As the Tribunal Appellate Tribunal and Other Authorities Qualification Experience and Other Conditions of Service of Members) Rules 2017 have been struck down and several directions have been issued vide the majority judgment for framing of fresh set of rules we as an interim order direct that appointments to the Tribunal Appellate Tribunal and the terms and conditions of appointment shall be in terms of the respective statutes before the enactment of the Finance Bill 2017. However liberty is granted to the Union of India to seek modification of this order after they have framed fresh rules in accordance with the majority judgment However in case any additional benefits concerning the salaries and emoluments have been granted under the Finance Act they shall not be withdrawn and will be continued. These would equally apply to all The board has been set up by Section 83 of the TM Act to exercise the jurisdiction powers and authority conferred on it by or under that enactment. Section 84 prescribes the composition of the board which consists of a chairperson a vice chairperson “and such number of other Members as the Central Government may deem fit and subject to the other provisions of this Act the jurisdiction powers and authority of the Appellate Board may be exercised by Benches thereof.” Sections 84andare of some relevance in the present context they read “(2) Subject to the other provisions of this Act a Bench shall consist of one Judicial Member and one Technical Member and shall sit at such place as the Central Government may by notification in the Official Gazette specify. 3) Notwithstanding anything contained in sub section the 2 a) may in addition to discharging the functions of the Judicial Member or Technical Member of the Bench to which he is appointed discharge the functions of the Judicial Member or as the case may be the Technical Member of any other Bench b) may transfer a Member from one Bench to another Bench c) may authorise the Vice Chairperson the Judicial Member or the Technical Member appointed to one Bench to discharge also the functions of the Judicial Member or the Technical Member as the case may be of another Bench Sections 86 and 87 read as follows “86. Term of office of Chairperson Vice Chairperson and other Members.—The Chairperson Vice Chairperson or other Members shall hold office as such for a term of five years from the date on which he enters upon his office or until he attains — in the case of Chairperson and Vice Chairperson the age of sixty five years and b) in the case of a Member the age of sixty two years whichever is 87. Vice Chairperson] or senior most Member to act as 1 Chairperson] or discharge his functions in certain circumstances— 1) In the event of or any vacancy in the office of the Chairperson by reasons of his death resignation or otherwise the Vice Chairperson and in his absence the senior most Member shall act as Chairperson until the date on which a new 1 Chairperson appointed in accordance with the provisions of this Act to fill such vacancy enters upon his 2) When the Chairperson is unable to discharge his functions owing to his absence illness or any other cause the Vice Chairperson and in his absence the senior most Member shall discharge the functions of the Chairperson until the date on which the Chairperson resumes Section 89A of the TM Act reads as follows “89A. Qualifications terms and conditions of service of Chairperson Vice Chairperson and Member.—Notwithstanding anything in this Act the qualifications appointment term of office salaries and allowances resignation removal and other terms and conditions of service of the Chairperson Vice Chairperson and other Members of the Appellate Board appointed after the commencement of Part XIV of Chapter VI of the Finance Act 2017shall be governed by the provisions of section 184 of that Act: Provided that the Chairperson Vice Chairperson and other Members appointed before the commencement of Part XIV of Chapter VI of the Finance Act 2017shall continue to be governed by the provisions of this Act and the rules made thereunder as if the provisions of section 184 of the Finance Act 2017 had not come into The present incumbent to the office of Chairperson of the Board was appointed as the Chairman Appellate Tribunal for Forfeited PropertyChennai in the scale of pay as prescribed in the Tribunal Appellate Tribunals and other Authorities Qualifications Experience and other Conditions of Service of Members) Rules 2017 for a period of three years with effect from the date of assumption of charge to the post or until further orders whichever is the earlier. Under Secretary to the Govt. of India The order of appointment as Chairperson of the Board was amended on 29.12.2017 by the Central Government. This later order stated that the tenure of his appointment as Chairman of the Board was upto 21.09.2019 or till further orders whichever was earlier. The later order of 29.12.2017 reads as follows “No. P 24017 44 2017 IPR I Government of India Ministry of Commerce & Industry Department of Industrial Policy & Promotion to Justice Manmohan Singh Chairman Appellate Tribunal for Forfeited Property in addition to his current duties from the date of assumption of charge of the post up to 21.09.2019 i.e. till his tenure on the post of chairmen ATFP or until further orders whichever is earlier.” Under Secretary to the Govt. of India The judgment in Rojer Mathew by the five judge Constitution Bench was delivered on 13.11.2019. That judgment pronounced upon the validity of the 2017 Rules and quashed them. However before the 2017 Rules were declared unconstitutional the tenure of the incumbent to the office of the Chairperson of the Board ended on 21.09.2019. This Court recollects that the operation of the 2017 Rules had not been suspended during the pendency of the petitions challenging them i.e. Rojer Mathew batch of cases). During the pendency of the said batch of petitions this court had occasion to issue a series of interim orders. The order dated 20.03.2018 clarified a previous orderas follows The tenure of all the Tribunals shall be for a period of five years or the maximum age that was fixed determined under the old Acts and Rules ” the Chairperson and Members of 20. On 16.07.20183 the following directions in regard to the age of the superannuation of Member of the Income Tax Appellate Tribunalas regards the age of superannuation. We make it clear that the person selected as Member of the ITAT will continue till the age of 62 years and the person holding the post of President shall continue till the age of 65 In the same petition the court had occasion to again clarify the previous orders in the context of the President and Members of the Customs Excise and Service Tax Appellate Tribunalthe tenure age limit would be 65 years.4 22. Given these circumstances the arguments advanced on behalf of the applicant that the incumbent chairperson continued to remain in office in view of the declaration of law by Rojer Mathew is insubstantial and cannot be countenanced. The other reason for not accepting this contention is that if for a moment it were to be assumed that in terms of the interim arrangement directed by the majority judgment in Rojer Mathew the appointments to Tribunals Appellate Tribunals were to be “in terms of the respective statutes before the enactment of the Finance Bill 2017..” the amendments brought about through Sections 184 in terms of the maximum age up to which any Member or Chairperson can hold office in a Tribunal could not apply in the case of the Board. This is because 3Reported as Kudrat Sandhu v Union of India 2018 SCC Online 1335SCC 796 the Rules of 2017 had fixed the tenure limits of chairpersons and members of tribunals including that of the chairperson of the board.5 In terms of those Rules i.e. the rules of 2017) the tenure of the present incumbent ended on 21.09.2019. As noticed earlier the rules were ultimately struck down only on 13.11.2019. At that time the only order prevailing which had directed status quo with respect to tenure and age limits for members and chairpersons of various tribunals were the interim orders and clarifications in Kudrat Sandhu dated 09.02.2018 20.03.2018 16.07.2018 and 21.08.2018. These had stated that the maximum tenure of such members or chairpersons would be as stipulated in the parent enactments before the coming into force of the Finance Act 2017 or were expressed to be for a maximum of 3 years in the case of chairpersons. The period had ended so far as the applicant is concerned on 21.09.2019 23. Another argument urged by the applicant was that the Finance Act 2017 had inserted Section 89A of the TM Act members or chairpersons could be appointed “for such term as specified in the rules made by the Central Government but not exceeding five years from the date on which he enters upon his office”. Thus the outer limit of the tenure was five years As noticed earlier the Central Government had fixed the tenure of chairperson of the board to be three years. By the time this rule was held unconstitutional the tenure of 5By S. No.12 Column 5 had fixed the tenure of Chairperson Vice Chairman Judicial Members of the Board at 3 years and indicated that the outer limit for the tenure of Chairperson would be 67 years whereas that of the Vice Chairman and Members would be 65 years the incumbent holding office of chairperson of the board ended on 21.09.2019. The final judgment in Rojer Mathew could not have per se been applied to the facts of this case. The applicant’s contentions in this regard are of no avail it is after the judgment in Madras Bar Associationthat the tenure has been mandated to be five years. It is to be noticed that even the 2020 Rules did not prescribe the maximum tenure it rather confined the tenure to four years. In the facts of this case even if that were to be applied assuming such a course to be available the four year period too ended on 21.09.2020. It is important to notice that the changes brought about in the tenure and age limits were not only through the Schedule to the Finance Act 2017 but also through its substantive provisions Sections 156 to 182. 6 These provisions introduced changes relating to tenure and age limits for members and chairpersons of 19 tribunals of the TM Act no doubt states that a bench of the board shall consist of a judicial and a technical member. However it is “subject to other provisions” of the TM Act. Section 84(3) commences with a non obstante clause and stipulates by Section 84(3)(a) that a chairperson may “in addition to discharging the functions of the Judicial Member or Technical Member of the Bench to which he is appointed discharge the functions of the Judicial Member or as the case may be the Technical Member of any other Bench.” Thus in the absence of any member the chairperson may if the occasion so arises act as technical or judicial member. Section 87 enables a vice chairperson or as the case may be the senior most member of the board to act as chairperson in the event of a vacancy to that position or in the event of the incumbent’s inability to function in the post. Furthermore significantly Section 85 inter alia stipulates the qualifications for the post of chairperson or vice chairperson The relevant provisions of this sectionA person shall not be qualified for appointment as the Chairperson unless he— a) is or has been a Judge of a High Court or b) has for at least two years held the office of a 3A person shall not be qualified for appointment as the Vice Chairperson unless he— a) has for at least two years held the office of a Judicial Member or a Technical Member or b) has been a Member of the Indian Legal Service and has held a post in Grade I of that Service or any higher post for at least five years. three years or 3) A person shall not be qualified for appointment as a Judicial Member unless he— a) has been a member of the Indian Legal Service and has held the post in Grade I of that Service for at least b) has for at least ten years held a civil judicial office. 4) A person shall not be qualified for appointment as a Technical Member unless he— a) has for at least ten years exercised functions of a tribunal under this Act or under the Trade and Merchandise Marks Act 1958or both and has held a post not lower than the post of a Joint Registrar for at least five years or b) has for at least ten years been an advocate of a proven specialised experience in trade mark law 8These particulars are available at the website of the Intellectual Property Appellate Board website https: www.ipab.gov.in technical_members_page.php id=2and one technical member (patents had experience in the Patent Office. These members had practical legal experience of ten to fifteen years. The fact that they were appointed as technical members cannot obfuscate the fact that they are legally trained and qualified. Therefore the argument that the technical members in their position at the board as of now cannot function without a chairperson is unsustainable In view of the above conclusions this court holds that the applicant cannot be granted any relief. The application is accordingly dismissed there shall however be no order on costs. [L. NAGESWARA RAO [HEMANT GUPTA [S. RAVINDRA BHAT New Delhi February 12 2021

The scope of interference with the judgment of acquittal recorded by the trial Court is very limited : Jammu High Court

While the constitution guarantees more powers to the higher courts , it doesn’t necessarily mean that the verdicts of lower courts get dismissed easily. This was held in the judgment passed by a one bench judge comprising HON’BLE MR. JUSTICE SANJEEV KUMAR JUDGE, in the matter State of J&K V. Rohit Kumar (MA 534/2014), dealt with an issue where the state filed for an appeal that is directed against the judgment passed by the learned Additional Sessions Judge, Kathua [‘trial Court’] titled ‘State of J&K vs. Rohit Kumar’. The trial Court, after considering the entire evidence on record and hearing the counsel for the parties, concluded that the prosecution had failed to prove the case beyond shadow of doubt against the respondent and, therefore, acquitted him of the charges levelled against him. It is this judgment of acquittal recorded by the trial Court, which is impugned in this appeal. It is submitted by the state that the occurrence has been sufficiently proved and, therefore, there was no reason or occasion for the trial Court to acquit the respondent. It is argued by learned counsel for the appellant-State that the trial Court has adopted a very hyper technical approach in the matter, while as, the direct and the circumstantial evidence available on record was sufficient to connect the respondent with the offence of commission of rape on the hapless minor girl. In the present case, the age of the prosexutrix could be 18 years, the view of the trial Court is accepted as correct, then the only question for consideration is whether the sexual encounters between the respondent and the prosecutrix were consensual or against the will of the prosecutrix. The circumstances as also the testimony of the prosecution witnesses clearly point towards the only conclusion that the same were consensual between the respondent and the prosecutrix. After hearing both the parties, the Hon’ble Jammu High Court agreed with Trial Court’s judgement as the evidence that has come on record in the instant case does not inspire confidence and if appreciated in proper perspective, lends support to the conclusion drawn by the learned trial Court that the prosecutrix was major on the date of occurrence and that she had run away with the respondent of her own and may have even voluntarily indulged in sexual activities. It also held that is not sufficient enough to connect the respondent with the offence which the respondent was charged with and Otherwise also, the scope of interference with the judgment of acquittal recorded by the trial Court is very limited. Even if the appellate Court, on analysing the evidence on record, is of the opinion that two views are possible, yet the appellate Court would prefer the view which goes to the benefit of the accused. In this regard, reference can be made to a judgment of the Hon’ble Supreme Court in the case of Sambhaji Hindurao Deshmukh vs. State of Maharashtra.

IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT JAMMU CRAA 75 2012 Reserved on: 06.08.2021 Pronounced on: 10 .08.2021 State of J&K Through: Mr.Aseem Sawhney AAG ... Appellant(s) Rohit Kumar Through: None CORAM: HON’BLE MR. JUSTICE SANJEEV KUMAR JUDGE This appeal by the State is directed against the judgment dated 31.10.2011 passed by the learned Additional Sessions Judge Kathua ‘trial Court’] in file No. 56 Sessions 74 Sessions titled ‘State of J&K vs. Rohit Kumar’ where she was kept for more than one and a half month for intercourse. The allegations were investigated and the Investigating Officer after recording the statements of witnesses acquainted with the case and completing other legal formalities found the offences proved against the respondent and accordingly presented the challan in the Court of learned Judicial Magistrate 1st ClassHiranagar on 07.09.2006. The challan was committed by the learned Magistrate to the Court of learned Principal Sessions Judge Kathua which on transfer was tried by the trial Court. The trial Court framed the charges against the respondent for commission of offences under Sections 363 343 376 RPC. The respondent denied the charges and claimed to be tried. The prosecution was called upon to lead evidence. With a view to bring home the charge and to prove the guilt of the respondent the prosecution examined PWs the Prosexutrix Mohan Lal Kanta Devi Tilak Raj Prakasho Devi Rano Devi. Dr. Rajeev Mengi and Dr. Devinder Sauntra. On conclusion of the prosecution evidence the statement of respondent in terms of Section 342 Cr.P.C was recorded on 07.12.2010 and incriminating circumstances appearing against him were put to him. The respondent denied the allegations however did not chose to produce any witness in defence. 3 CRAA 75 2012 The trial Court after considering the entire evidence on record and hearing the counsel for the parties concluded that the prosecution had failed to prove the case beyond shadow of doubt against the respondent and therefore acquitted him of the charges leveled against him. It is this judgment of acquittal recorded by the trial Court which is impugned in this appeal. The impugned judgment has been assailed on the ground that the learned trial Court has failed to appreciate the prosecution evidence in proper perspective and the conclusion drawn is against the weight of evidence. It is submitted that the occurrence has been sufficiently proved and therefore there was no reason or occasion for the trial Court to acquit the respondent. It is argued by learned counsel for the appellant State that the trial Court has adopted a very hyper technical approach in the matter while as the direct and the circumstantial evidence available on record was sufficient to connect the respondent with the offence of commission of rape on the hapless minor girl. Having heard learned counsel for the appellant and perused the record I am of the view that the judgment of acquittal passed by the trial Court is perfectly legal and free from infirmity and therefore cannot be found fault with. 6 With regard to the age of the prosecutrix the only evidence on record is the statement of PW Dr. Davinder Sauntra who on the basis of examination of x ray film of the prosecutix has given his opinion that the radiological age of prosecutrix is between 14 and 16 years. In his cross examination the said witness has deposed that 4 CRAA 75 2012 neither he has taken the x ray film of prosecutrix nor has he seen the prosecutrix personally. His opinion was thus based on mere examination of x ray film. It is well settled that so far as the age on the basis of radiological examination is concerned there is possibility of error of two years on either side and if the opinion of the Doctor is accepted in the present case the age of the prosexutrix could be 18 years. It is interesting to note that the father of the prosecutrix i.e PW Tilak Raj in his deposition has stated that the prosecutrix had read up to 6th 7th class but no effort was made by the Investigating Officer to collect the proof of age of the prosecutrix from the concerned School. In view of the aforesaid evidence on record the trial Court was correct in law to take the age of the prosecutrix as 18 years. Once the aforesaid view of the trial Court is accepted as correct then the only question for consideration is whether the sexual encounters between the respondent and the prosecutrix were consensual or against the will of the prosecutrix. The circumstances as also the testimony of the prosecution witnesses clearly point towards the only conclusion that the same were consensual between the respondent and the prosecutrix. Both had allegedly travelled from Kathua to Delhi and Delhi to Damtal through different modes of transport but the prosecutrix never ever raised hue and cry or made any effort or grievance to anybody with regard to her kidnapping. The trial Court is correct in its finding that it is not possible for a person to keep on moving from one place to another and stay quiet for almost one and a half month and not even a single act of protest 5 CRAA 75 2012 or willingness to skip from the custody of the respondent was ever exhibited by the prosecutrix and that speaks volume of the prosecutrix being a willing partner till she landed back in Barnoti. It is trite and golden principle of criminal jurisprudence that the accused is presumed to be an innocent till proven guilty. It is for the prosecution which alleges commission of offence by the accused to prove beyond reasonable doubt. The evidence that has come on record in the instant case does not inspire confidence and if appreciated in proper perspective lends support to the conclusion drawn by the learned trial Court that the prosecutrix was major on the date of occurrence and that she had run away with the respondent of her own and may have even voluntarily indulged in sexual activities. I am therefore in agreement with the learned trial Court that the evidence led by the prosecution in the instant case is not sufficient enough to connect the respondent with the offence which the respondent was charged with. 10 Otherwise also the scope of interference with the judgment of acquittal recorded by the trial Court is very limited. Even if the appellate Court on analysing the evidence on record is of the opinion that two views are possible yet the appellate Court would prefer the view which goes to the benefit of the accused. In this regard reference can be made to a judgment of the Hon’ble Supreme Court in the case of Sambhaji Hindurao Deshmukh vs. State of Maharashtra 11 SCC 186 wherein the Hon’ble Supreme Court held as under: 6 CRAA 75 2012 “The principles relating to interference by the High Court in appeals against acquittal are well settled. While the High Court can review the entire evidence and reach its own conclusions it will not interfere with the acquittal by the trial court unless there are strong reasons based on evidence which can dislodge the findings arrived by the trial court which were the basis for the acquittal. The High Court has to give due importance to the conclusions of the trial court if they had been arrived at after proper appreciation of the evidence. The High Court will interfere in appeals against acquittals only where the trial court makes wrong assumptions of material facts or appreciate the evidence properly. If two views are reasonably possible from the evidence on record one favouring the accused and one against the accused the High Court is not expected to reverse the acquittal merely because it would have taken the view against the accused had it tried the case. The very fact that two views are possible makes it clear that the prosecution has not proved the guilt of the accused beyond reasonable doubt and consequently the accused is entitled to benefit of doubtSCC 371: Babu v. State of U.P 1988 SCC 21: Awadhesh v. State of M.P 1988 SCC 557: Thanedar Singh v. State of M.P 2002SCC 487: and State of Rajasthan vs. Rajaram 2003SCC 180. Keeping the said principles in view we will examine the evidence to find out whether the findings of the trial court were not based on evidence and whether there was justification for the High Court to interfere with the decision of the trial court”. 7 CRAA 75 2012 In view of the circumscribed scope of interference with the judgment of acquittal I am not inclined to interfere with the impugned judgment. I accordingly dismiss this appeal and uphold the judgment of acquittal passed by the learned trial Court. Registry to return back the record of trial Court if received. SANJEEV KUMAR) 10 .08.2021 Whether the order is reportable: Yes No Whether the order is speaking: Yes

Candidates cannot challenge selection process without concrete evidence: Himachal Pradesh High Court

Once a candidate has accepted a particular selection process and has participated in the same without challenging it, she/he cannot challenge such a process upon not being selected, in the court of law without concrete evidence. The High Court Bench of Himachal Pradesh, consisting of J. Sandeep Sharma, in the case of Mukesh Thakur and Others v. State of Himachal Pradesh and Others [CWPOA No. 5994 of 20190], decided that the court should not interfere in the selection process for posts, wherein there lies no evidence of illegality or irregularity. The petitioners along with other eligible candidates had applied for the post of Drivers in 4th Battalion Home Guards, Nahan, pursuant to a notice published in the newspaper. The respondents conducted the fitness test, the driving test and the written test of over 122 candidates, out of which a list of 15 selected candidates was issued. None of the petitioners was selected and they were shocked to see that certain persons on the list had either failed the driving/fitness tests or had not even participated in the selection process. A few of the petitioners wrote a complaint to the Hon’ble Chief Minister, Himachal Pradesh and Inspector-General, Home Guards, stating illegalities regarding the selection process and requested to take action in accordance with the law. A few other petitioners also applied for information gathering regarding the marks in the tests along with a copy of the videography made at the time of the driving test. The report of illegalities and irregularities in the procedure was also published in the newspaper. Upon no response from the authorities, the petitioners approached the Himachal Pradesh Administrative Tribunal praying for the call of records, quashing the selection process and directing the respondent authorities to carry out a proper inquiry into the illegalities. The respondent while denying all the allegations, claimed that “the selection process under challenge, was conducted in a fairest and transparent manner”, and hence, the petition should be dismissed. The Tribunal granted time to the respondents and ordered that the finality of the selection process would be subject to the outcome of the petition.  The Court, after careful consideration, remarked that “Though in the case at hand, petitioners have claimed that information sought for by them under RTI Act is yet awaited but delay, if any in furnishing information cannot be a ground/reason for this Court to infer that the respondents committed illegalities and irregularities while selecting respondents Nos. 4 to 8 in the selection process, wherein admittedly petitioners had also participated. Save and except bald statements/allegations having been made by the petitioners, there is no concrete evidence adduced on record by them suggestive of the fact that respondents Nos. 4 to 8 had either not cleared the fitness/driving test or not appeared in the selection process. There is no plausible reason rendered on record by the petitioners, which can persuade this Court to disbelieve the version put forth by the respondents in their reply, which has been admittedly filed under the signatures and affidavit of Commandant, Home Guard, 4th Battalion”. Relying on Madras Institute of Development Studies and Another v. K. Sivasubramaniyan and Others [(2016) 1 SCC 454], the Court dismissed the petition on the basis of it being devoid of merit, stating that “Since it stands duly established on record that the writ petitioners before laying challenge to selection process had participated in the selection process without any demur, now it is not open for them to lay challenge to selection process after having been declared unsuccessful that too on the bald and baseless allegations”. Click here to read the judgement

Hig h C o urt of H.P on 15 11 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. CWPOA No. 59919 Reserved on: November 10 2020 Decided on: November 13 2020 _______________________________________________________________ Mukesh Thakur and others …..Petitioners Versus State of Himachal Pradesh and others ….Respondents _______________________________________________________________ Coram: Hon’ble Mr. Justice Sandeep Sharma Judge. Whether approved for reporting 1yes. For the Petitioners : Mr. Suneet Goel Advocate. For the Respondents : Mr. Sudhir Bhatnagar Additional Advocate General with Mr. Kunal Thakur Deputy Advocate General and Mr. Sunny Dhatwalia Assistant Advocate General for respondents Nos. 1 to 3. Ms. Yogita Dutt Sharma Advocate for respondents Nos. 4 to 8. _______________________________________________________________ Sandeep Sharma Judge Pursuant to notice published in the newspaper dated 18.10.2018petitioners alongwith other eligible candidates applied for the posts of Drivers in 4th Battalion Home Guards Nahan. Petitioners being eligible candidates were called for recruitment process vide separate communicationswhich was scheduled to be held with effect from. 15.10.2018 to 18.10.2018. Fitness test was conducted on 15.10.2018 driving test on 16.10.2018 and written test on 17.10.2018. Though 1 Whether the reporters of the local papers may be allowed to see the judgment Hig h C o urt of H.P on 15 11 HCHP 2 initially 500 candidates participated in the aforesaid selection process conducted by the respondents for 15 posts of Drivers however only 122 candidates including the petitioners appeared qualified in the written examination. After conducting the driving test written examination respondents issued list of 15 selected candidates for post in questionwho had either failed in the driving fitness test or had not even participated in the selection process petitioners namely Dimple Singh Ashik Khan Mohammad and Mukesh Thakur lodged a written complaint to Hon ble the Chief Minister Himachal Pradesh and Inspector General Home Guardswith regard to aforesaid illegalities and requested to take action in accordance with law. Though petitioner namely Mukesh Thakur applied for information regarding marks obtained by respondent No.5 Rahul Thakur in skill and written test alongwith copy of video graphy made at the time of driving skill test held on 15.10.2018 but such information is still awaited. Report with regard to alleged illegalities and irregularities committed in the aforesaid selection process also came to be published in certain newspapers as is evident from one newspaper report annexed as Annexure A 9. Since no action came to be taken on the complaints having been made by Hig h C o urt of H.P on 15 11 HCHP 3 the petitioners they approached erstwhile Himachal Pradesh Administrative Tribunal by way of OA No. 6918 which on its transfer to this Court stands re registered as CWPOA No. 59419 praying therein for following main reliefs: “A. This Hon ble Tribunal may very kindly be pleased to call for entire records pertaining to the case within the power and possession of the respondents B. This Hon ble Tribunal may very kindly beC. Direct the respondent authorities to carry out proper inquiry qua the into the illegalities in making selection of the candidates for the post in question.” 2. Respondents Nos. 1 to 3 while denying aforesaid allegations have claimed in their reply that the selection process under challenge was conducted in a most fair and transparent manner. Respondents have claimed that the Enrolment Board constituted by Commandant General Home Guards and Civil Defense Himachal Pradesh vide order dated 25.9.2018 conducted physical driving and written tests with full transparency and impartiality. Respondents have submitted that since the entire process was conduced as per norms prescribed for selection process and in terms of Rules occupying the field petition having been filed by the petitioners deserves dismissal being without any merit. Hig h C o urt of H.P on 15 11 HCHP 4 3. Respondents nos. 4 to 8 also filed a joint reply refuting therein the allegations of the petitioners. Aforesaid respondents have not only claimed that they participated in selection process alongwith the petitioners but have stated that they being more meritorious have been rightly selected for the posts of Drivers. 4. Learned Tribunal below having taken note of the averments contained in the petition vide order dated 6.12.2018 while granting time to the respondents ordered that selection of respondents Nos. 4 to 8 as drivers on the establishment of 4th Battalion Nahan as per list of selected candidates Annexure A 1 shall be subject to the final outcome of the petition. 5. I have heard the parties and gone through the record. 6. In nutshell grievance of the petitioners as emerges from the pleadings adduced on record is that the respondents while carrying out selection for the posts of drivers in 4th Battalion Home Guards have committed serious illegalities and irregularities and have appointed the personswho had either failed in the diving fitness test or had not at all appeared in the selection process. 7. Respondents Nos. 1 to 3 with a view to refute the aforesaid allegations of the petitioners and to justify the selection of respondents Nos. 4 to 8 have placed on record various documents alongwith their reply perusal whereof clearly reveals that though intimation with regard to selection against 15 posts of drivers was given in newspaper Annexure A 2 but in such news clipping terms and conditions i.e. Hig h C o urt of H.P on 15 11 HCHP 5 eligibility age critera physical standards and educational qualifications were clearly mentioned. Apart from this terms and conditions stood clearly mentioned in the form of enrollment which was required to be furnished at the time of selection and as such there appears to be no force in the claim of the petitioners that they were not apprised with regard to terms and conditions and standards to be adopted by respondents during selection process. Similarly careful perusal of Annexures R 1 and R 2 annexed with reply filed by respondents Nos. 1 to 3 clearly reveals that vide office order dated 20.9.2018 and corrigendum dated 6.10.2018 respondents while constituting Enrolment Board specifically provided marks to be awarded by the Board against each criterion. Vide corrigendum dated 6.10.2018separate Enrolment Boards came to be constituted for each District headed by the officer of the rank of Commandant. Respondents also placed on record an enrolment form submitted by one of the petitioners namely Mukesh Thakur to demonstrate that the terms and conditions of enrolment were also printed on the application form submitted by each individual with his signatures. Perusal of aforesaid form further reveals that marks were awarded on same form by the Enrolment Board against each criterion. Though in the case at hand petitioners have claimed that information sought for by them under RTI Act is yet awaited but delay if any in furnishing information cannot be a ground reason for this Court to infer Hig h C o urt of H.P on 15 11 HCHP 6 that the respondents committed illegalities and irregularities while selecting respondents Nos. 4 to 8 in the selection process wherein admittedly petitioners had also participated. Save and except bald statements allegations having been made by the petitioners there is no concrete evidence adduced on record by them suggestive of the fact that respondents Nos. 4 to 8 had either not cleared the fitness driving test or not appeared in the selection process. There is no plausible reason rendered on record by the petitioners which can persuade this Court to disbelieve the version put forth by the respondents in their reply which has been admittedly filed under the signatures and affidavit of Commandant Home Guard 4th Battalion. Though an attempt has been made on behalf of petitioners to refute the submissions contentions raised by the respondents in their reply by way of filing rejoinder but rejoinder if read in its entirety shows that besides reiterating their stand in the petition no fresh material has been placed on record persuading this court to believe their version as put forth in the petition. Though this Court having perused reply filed on behalf of the respondents has no hesitation to conclude that the petitioners after having been declared unsuccessful in the selection process have made an attempt to stall the entire selection process on very flimsy grounds but even otherwise petitioners after having been declared unsuccessful in the selection process cannot be permitted to raise dispute with Hig h C o urt of H.P on 15 11 HCHP 7 regard to method of selection adopted by the Enrolment Board. Though Mr. Suneet Goel learned counsel for the petitioners while making this court peruse documents annexed with the petition made a serious attempt to persuade this Court that since the petitioners during selection process itself had apprised authorities concerned with regard to the alleged illegalities petitioners cannot be estopped from filing this petition on the ground that they had already participated in the selection process but having perused averments contained in the petition as well as Annexure A 1 i.e. list of selected candidates for the posts of Drivers in 4th Battalion this Court finds no merit in the aforesaid submission of Mr. Goel and as such same is rejected being devoid of merit. It stands categorically averred in the petition that petitioners after having noticed names of respondents Nos. 4 to 8 in the selection list which was admittedly signed in the month of November 2018 lodged complaint with the Hon ble Chief Minister and the Inspector General Home Guards. As per own case of the petitioners interview driving test for the post was held on 15.10.2020 to 17.10.2018 but there is no material available on record suggestive of the fact that complaint if any ever came to be made by the petitioners during aforesaid period and as such subsequent representations complaints by the petitioners can be said to be an afterthought. 8. It is settled law that a process of selection cannot be challenged by an unsuccessful candidate by pointing to certain Hig h C o urt of H.P on 15 11 HCHP 8 irregularities here and there in the process of which he was aware once the result is not to his liking. Relief in such a case is to be declined by applying the principles of estoppel acquiescence and or waiver. Reference in this regard can conveniently be made to the two recent judgments of the Hon ble Supreme Court. “10. In Madras Institute of Development Studies and another vs. K. Sivasubramaniyan and others(2016) 1 SCC 454 the Hon ble Supreme Court has held as under: 12. The contention of the respondent no.1 that the short listing of the candidates was done by few professors bypassing the Director and the Chairman does not appear to be correct. From perusal of the documents available on record it appears that short listing of the candidates was done by the Director in consultation with the Chairman and also senior Professors. Further it appears that the Committee constituted for the purpose of selection consists of eminent Scientists Professor of Economic Studies and Planning and other members. The integrity of these members of the Committee has not been doubted by the respondent writ petitioner. It is well settled that the decision of the Academic Authorities about the suitability of a candidate to be appointed as Associate Professor in a research institute cannot normally be examined by the High Court under its writ jurisdiction. Having regard to the fact that the candidates so selected possessed all requisite qualifications and experience and therefore their appointment cannot be questioned on the ground of lack of qualification and experience. The High Court ought not to have interfered with the decision of the Institute in appointing respondent nos. 2 to 4 on the post of Associate Professor. 13. Be that as it may the respondent without raising any objection to the alleged variations in the contents of the advertisement and the Rules submitted his application and participated in the selection process by appearing before Hig h C o urt of H.P on 15 11 HCHP 9 the Committee of experts. It was only after he was not selected for appointment turned around and challenged the very selection process. Curiously enough in the writ petition the only relief sought for is to quash the order of appointment without seeking any relief as regards his candidature and entitlement to the said post. 14. The question as to whether a person who consciously takes part in the process of selection can turn around and question the method of selection is no longer res integra. 15. In Dr. G. Sarana vs. University of Lucknow & Ors. 3 SCC 585 a similar question came for consideration before a three Judges Bench of this Court where the fact was that the petitioner had applied to the post of Professor of Athropology in the University of Lucknow. After having appeared before the Selection Committee but on his failure to get appointed the petitioner rushed to the High Court pleading bias against him of the three experts in the Selection Committee consisting of five members. He also alleged doubt in the constitution of the Committee. Rejecting the contention the Court held:"15. We do not however consider it necessary in the present case to go into the question of the reasonableness of bias or real likelihood of bias as despite the fact that the appellant knew all the relevant facts he did not before appearing for the interview or at the time of the interview raise even his little finger against the constitution of the Selection Committee. He seems to have voluntarily appeared before the committee and taken a chance of having a favourable recommendation from it. Having done so it is not now open to him to turn round and question the constitution of the committee. This view gains strength from a decision of this Court in Manak Lal vs. Prem Chand Singhvi AIR 1957 SC 425 where in more or less similar circumstances it was held that the failure of the appellant to take the identical plea at the earlier stage of the proceedings created an effective bar of waiver against him. The following observations made therein are worth quoting:9. ....It seems clear that the appellant wanted to take a chance to secure a favourable report from the tribunal which was Hig h C o urt of H.P on 15 11 HCHP 10 constituted and when he found that he was confronted with an unfavourable report he adopted the device of r raising the present technical point. " 16. In Madan Lal & Ors. vs. State of J & K & Ors.3 SCC 486 similar view has been reiterated by the Bench which held that:"9. Before dealing with this contention we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being respondents concerned herein were all found eligible in the light of marks obtained in the written test to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview then only because the result of the interview is not palatable to him he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla 1986 Supp SCC 285 it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination r the High Court should not have granted any relief to such a petitioner." 17. In Manish Kumar Shahi vs. State of Bihar 12 SCC 576 this Court reiterated the principle laid down in the earlier judgments and observed:"16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test the petitioner is not entitled to challenge the Hig h C o urt of H.P on 15 11 HCHP 11 criteria or process of selection. Surely if the petitioner s name had appeared in the merit list he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition." 18. In the case of Ramesh Chandra Shah and others vs. Anil Joshi and others 11 SCC 309 recently a Bench of this Court following the earlier decisions held as under:"24. In view of the propositions laid down in the above noted judgments it must be held that by having taken part in the process of selection with full knowledge that the recruitment was being made under the General Rules the respondents had waived their right to question the advertisement or the methodology adopted by the Board for making selection and the learned Single Judge and the Division Bench of the High Court committed grave error by entertaining the grievance made by the respondents." 19. So far as the finding recorded by the Division Bench on the question of maintainability of the writ petition on the ground that the appellant Institute is a State within the meaning of Article 12 of the Constitution we are not bound to go into that question which is kept open." 9. In Ashok Kumar and another vs. State of Bihar and others4 SCC 357 a Bench of three Hon ble Judges of the Hon ble Supreme Court has held as under: "13. The law on the subject has been crystalized in several decisions of this Court. In Chandra Prakash Tiwari v. Shakuntala Shukla[4] this Court laid down the principle that when a candidate appears at an examination without objection and is subsequently found to be not successful a challenge to the process is precluded. The question of entertaining a petition challenging an Hig h C o urt of H.P on 15 11 HCHP 12 examination would not arise where a candidate has appeared and participated. He or she cannot subsequently turn around and contend that the process was unfair or that there was a lacuna therein merely because the result is not palatable. In Union of India v. S. Vinodh Kumar8 SCC 100 this Court held that : "18. It is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same3 SCC 368 and Rashmi Mishra v. M.P. Public Service Commission12 SCC 724)". 14. The same view was reiterated in Amlan Jyoti Borooah3 SCC 227 where it was held to be well settled that candidates who have taken part in a selection process knowing fully well the procedure laid down therein are not entitled to question it upon being declared to be unsuccessful. 15. In Manish Kumar Shah v. State of Bihar12 SCC 576 the same principle was reiterated in the following observations:"16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test the Petitioner is not entitled to challenge the criteria or process of selection. Surely if the Petitioner s name had appeared in the merit list he would not have even dreamed of challenging the selection. The Petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the Petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition. Reference in this connection may be made to the Judgments in Madan Lal v.State of J. and K.3 SCC 486 Marripati Nagaraja v. State of Andhra Pradesh and Ors.11 SCC 522 Dhananjay Malik and Ors. v.State of Uttaranchal and Ors.(2008) 4 SCC 171 Amlan Jyoti Borooah v. State of Assam3 SCC 227 Hig h C o urt of H.P on 15 11 HCHP 13 and K.A. Nagamani v. Indian Airlines and Ors.5 SCC 515." 16. In Vijendra Kumar Verma v. Public Service Commission 1 SCC 150 candidates who had participated in the selection process were aware that they were required to possess certain specific qualifications in computer operations. The appellants had appeared in the selection process and after participating in the interview sought to challenge the selection process as being without jurisdiction. This was held to be impermissible. 17. In Ramesh Chandra Shah v. Anil Joshi 11 SCC 309 candidates who were competing for the post of Physiotherapist in the State of Uttrakhand participated in a written examination held in pursuance of an advertisement. This Court held that if they had cleared the test the respondents would not have raised any objection to the selection process or to the methodology adopted. Having taken a chance of selection it was held that the respondents were disentitled to seek relief under Article 226 and would be deemed to have waived their right to challenge the advertisement or the procedure of selection. This Court held that:"18. It is settled law that a person who consciously takes part in the process of selection cannot thereafter turn around and question the method of selection and its outcome." 18. In Chandigarh Administration v. Jasmine Kaur[11] it was held that a candidate who takes a calculated risk or chance by subjecting himself or herself to the selection process cannot turn around and complain that the process of selection was unfair after knowing of his or her non selection. In Pradeep Kumar Rai v. Dinesh Kumar Pandey11 SCC 493 this Court held that:: "17. Moreover we would concur with the Division Bench on one more point that the appellants had r participated in the process of interview and not challenged it till the results were declared. There was a gap of almost four months between the interview and declaration of result. However the appellants did not challenge it at that time. Hig h C o urt of H.P on 15 11 HCHP 14 This it appears that only when the appellants found themselves to be unsuccessful they challenged the interview. This cannot be allowed. The candidates cannot approbate and reprobate at the same time. Either the candidates should not have participated in the interview and challenged the procedure or they should have challenged immediately after the interviews were conducted." This principle has been reiterated in a recent judgment in Madras Institute of Development v. S.K. Shiva Subaramanyam s casepetitioners being unsuccessful candidates cannot be allowed to challenge the selection process especially when they have failed to point out any illegality in the selection process the selection process requires to be upheld. 14. In view of above petition is dismissed being devoid of any merit. Pending applications if any stand disposed of. Interim orders quashed. Judge November 13 2020

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.: SEBI.

The appellate authority under the RTI (Right to Information) Act of the Securities and Exchange Board of India comprising of Mr. Anand Baiwar adjudicated in the matter of Geeta Khattar v CPIO, SEBI, Mumbai (Appeal No. 4304 of 2021) dealt with an issue in connection with the Right to Information Act, 2005. The appellant, Ms Geeta Khattar had filed an application via RTI MIS Portal on the 14th of April, 2021 under the Right to Information Act, 2005. The respondent responded to the application by a letter on the 6th of May, 2021, filed by the appellate. After receiving a letter from the respondent on 6th of May, 2021, on her application, the appellate decided to file an appeal on the 13th of June, 2021. The appellant filed the appeal on the grounds of that the information provided was incomplete, misleading or false information. On perusal of the appeal, it appears that the appellant is not satisfied with the reply to query numbers 3A, 3B, 5 and 6A. In view of the submissions of the appellant, the appellant authority is only dealing with the said queries, in this appeal. In her application, the appellate was seeking the following information: 3A. Name of the departments in SEBI and Number of the officials / employees in the same department (about), as per the format provided in the application. 3B. SEBI official web link where the purity of information no. 3.A can be viewed / verified online. For the query no. 3A, 3B, the appellate authority, Mr Anand Baiwar, made reference to the matter of Hon’ble CIC, in the matter of Shri Praveen Agarwal vs. SEBI (Decision dated October 1, 2008), had held that “It is true that given the volume and the complexity of the information requested by the appellant, it would be impossible to locate and collate it without substantial research effort. A public authority cannot be obliged to engage in it for the benefit of an applicant, who may not be the only and, the last such applicant. Many more would want to have this privilege which doubtless would lessen the applicant’s research burden while increasing it for the public authority.” In view of the above observations and applicability of section 7 (9) of the RTI Act, it was found that the respondent is not obliged to provide the information sought by the appellant. For the query no. 5, the appellate authority, Mr Anand Baiwar, made reference to the matter of Hon’ble CIC, in the matter of Vineet Pandey vs. CPIO, United India Insurance Company Limited (Judgment dated January 21, 2021), wherein similar observations were made by the Hon’ble CIC. Further, in the matter of Shri Shantaram Walavalkar vs. CPIO, SEBI (Decision dated January 17, 2013), I note that the Hon’ble CIC held: “… we would also like to observe that, under the Right to Information (RTI) Act, the citizen has the responsibility to specify the exact information he wants; he is not supposed to seek any opinion or comments or clarifications or interpretations from the CPIO…”. In view of the said observations, he does not find any deficiency in the response. For the query no. 6, the appellate authority, Mr Anand Baiwar, made reference to the matter of Hon’ble CIC, in the matter of Shri K Lall vs. Shri M K Bagri (CIC/AT/A/2007/00112, order dated April 12, 2007) held that if the relevant information is available in the public domain, the same cannot be said to be information held by the public authority and consequently there is no obligation to provide such information to an applicant under the RTI Act. Notwithstanding the same, he noted that the respondent has adequately guided the appellant to access the relevant information on the SEBI website. Accordingly, there was no deficiency found in the response.

Appeal No. 43021 BEFORE THE APPELLATE AUTHORITY Under the Right to Information Act 2005) SECURITIES AND EXCHANGE BOARD OF INDIA Appeal No. 43021 Geeta Khattar CPIO SEBI Mumbai The appellant had filed an application dated April 14 2021 under the Right to Information Act 2005 as per the format provided in the application. 3B. SEBI official web link where the purity of information no. 3.A can be viewed verified online. The respondent in response to query numbers 3A and 4B informed that the information sought is not readily available with SEBI in the format as sought by the appellant and the collection of the same will disproportionately divert the resources of SEBI in terms of section 7(9) of the RTI Act. However the respondent informed that the directory of SEBI employees is available on the SEBI website. The link for accessing the directory was also provided to the appellant. The appellant in her appeal reiterated the queries raised in her application and requested that the same may be provided. Appeal No. 43021 I have perused the queries and the response. I do not find any reason to disbelieve the response that the requested information is not readily available with SEBI in the format as sought by the appellant. It is understood that for providing the information in the format as requested for in the application it would require to analyse a substantial amount of data and collate the same. If the respondent does so it would defeat ‘the practical regime of right to information’ as envisaged in the preamble of the RTI Act. Considering the same I find that providing the information sought by the appellant will disproportionately divert the resources of SEBI. In this regard I note that the Hon ble CIC in Shri Praveen Agarwal vs. SEBIhad held that “It is true that given the volume and the complexity of the information requested by the appellant it would be impossible to locate and collate it without substantial research effort. A public authority cannot be obliged to engage in it for the benefit of an applicant who may not be the only and the last such applicant. Many more would want to have this privilege which doubtless would lessen the applicant s research burden while increasing it for the public authority.” In view of the above observations and applicability of section 7 of the RTI Act I find that the respondent is not obliged to provide the information sought by the appellant. 6. Without prejudice to the above I note that the information pertaining to various departments and officers of SEBI can also be found out by the appellant by accessing the information available on the SEBI website which is published in terms of section 4(b) of the RTI Act. I note that the respondent has adequately guided the appellant by providing the link for accessing the directory of SEBI employees. Accordingly I do not find any deficiency in the response. 7. Query number 5 The appellant ide query number 5 sought the following information “What for SEBI pays salary to the officials who have been appointed for the departments To work under the rules and regulations or to misuse of power.” The respondent in response to the query observed that the query is in the nature of seeking clarification opinion and accordingly canto be construed as seeking “information” as defined under section 2(f) of the RTI Act. 9. On consideration I agree with the observation of the respondent that the query is in the nature of seeking clarification opinion from the respondent. It is understood that the respondent is not supposed to create information or to interpret information or to furnish clarification to the appellant under the ambit of the RTI Act. I find that the said queries cannot be construed as seeking ‘information’ as defined under section 2of the RTI Act. Consequently the respondent did not have an obligation to provide Appeal No. 43021 such clarification under the RTI Act. In this context reference is made to the mater of Vineet Pandey vs. CPIO United India Insurance Company Limited wherein similar observations were made by the Hon’ble CIC. Further in the matter of Shri Shantaram Walavalkar vs. CPIO SEBII note that the Hon’ble CIC held: “... we would also like to observe that under the Right to InformationAct the citizen has the responsibility to specify the exact information he wants he is not supposed to seek any opinion or comments or clarifications or interpretations from the CPIO...”. In view of the said observations I do not find any deficiency in the response. 10. Query number 6A The appellant vide query number 6A inter alia sought information regarding the Department or Division in which a particular officer has been appointed. 11. The respondent in response to the query informed that the information relating to posting of the particular officer is available in the directory of SEBI employees. The appellant in her appeal submitted that the requested information has not been provided by the respondent. I have perused the query of the appellant. It is understood that the answer to the query can be found out by the appellant by accessing the information available in the public domain which is published in terms of section 4(b) of the RTI Act. In this context the Hon’ble Delhi High Court in Registrar of Companies Ors. Vs. Dharmendra Kumar Garg & Anr. and the Hon’ble CIC in Shri K Lall vs. Shri M K Bagri CIC AT A 2007 00112 order dated April 12 2007) held that if the relevant information is available in the public domain the same cannot be said to be information held by the public authority and consequently there is no obligation to provide such information to an applicant under the RTI Act. Notwithstanding the same I note that the respondent has adequately guided the appellant to access the relevant information on the SEBI website. Accordingly I do not find any deficiency in the response. In view of the above observations I find that there is no need to interfere with the decision of the respondent. The Appeal is accordingly dismissed. Place: Mumbai Date: Jul 12 2021 ANAND BAIWAR APPELLATE AUTHORITY UNDER THE RTI ACT SECURITIES AND EXCHANGE BOARD OF INDIA

Customary Divorce is not an exception u/s 29(2) of the Hindu Marriage Act: Calcutta High Court

Mere obtaining a customary divorce does not constitute or envisaged as an exception u/s 29(2) of the Hindu Marriage Act, 1955 and for such divorces, a deed of declaration needs to be established to make it valid. A single bench of Hon’ble Justice Sabyasachi Bhattacharyya gave the judgment in the case of Krishna Veni vs. Union of India [WPA no. 2346 of 2018] while stating the above-cited reasons. In the instant case, a writ petition had been filed by the petitioner challenging the order of the Assistant Secretary Government of West Bengal, denying pension to the Petitioner under the Swatantra Sainik Samman Pension Scheme, 1980. The petitioner claimed that she was the wife of a deceased freedom fighter and therefore she was entitled for seeking a pension under the said scheme. She relied on a deed of declaration of divorce, purportedly executed by the first wife of the deceased (respondent no.11) and her husband (deceased) but the government officials denied the divorce deed stating that it wasn’t valid according to the provisions of the Hindu Marriage Act, 1955. However, the petitioner claimed that the divorce was valid and stated that the provisions of the Hindu Marriage Act, 1955 don’t deny the said divorce. Relying on various judgments, the petitioner stated that if once a divorce is executed between the partners and sanctioned by the Notary Public, the marriage gets dissolved. On the contrary, the respondents added that the submission of the divorce deed by the petitioner was not valid. Observing the arguments from both the sides, the court agreed with the contentions of the respondent and stated “In the utter absence of any evidence, let alone conclusive, that the divorce decree executed purportedly between respondent no.11 and her deceased husband was endorsed by any valid custom, the exception envisaged in Section 29(2) of the 1955 Hindu Marriage Act would not be attracted.” The Court stated that the burden of proof lies on the petitioner to give appropriate evidences against her contention to fall into the ambit of the Hindu Marriage Act, 1955. It was found that no divorce decree was obtained by the petitioner in the present case. The Court held that the spouses need to revert back to Section 13 of the Act, which sanctions the dissolution of marriage only by a decree of divorce, for the dissolution of marriage to be valid in the eye of law. The HC bench dismissed the petition and stated that “Where a conflict arises between the individual conscience of the concerned Judge and judicial conscience, supported by law of the land, the former has to give way to the latter”.

In the High Court at Calcutta Constitutional Writ Jurisdiction Appellate Side The Hon’ble Justice Sabyasachi Bhattacharyya WPA No. 23418 Smt. Krishna Veni The Union of India and others For the petitioner For the respondent nos. 1 2 and 4 For the respondent no.9 Hearing concluded on Judgment on Sabyasachi Bhattacharyya J: Mr. Gunjan Shah Mr. Vinit Kumar Choubey Mr. Kumarjyoti Tiwari Mr. Subrata Roy 1. The present challenge has been preferred by Smt. Krishna Veni the second wife of Sardar Natha Singh who was a freedom fighter getting pension from the Central Government under the Swatantra Sainik Samman Pension Scheme 1980 till his demise on August 25 1984. The petitioner relying on a deed of declaration of divorce purportedly executed by respondent no.11 the first wife and Sardar Natha Singh the husband of the petitioner claimed widow pension under the said Scheme which was refused by a communication dated March 6 2012 issued by the Assistant Secretary to the Government of West Bengal on the ground that such deed of divorce dated December 19 1956 was not acceptable under the Hindu Marriage Act 1955 in the absence of a decree for divorce obtained from a competent court of law. 2. Learned counsel submits that the petitioner and her deceased husband were governed by customs of Jat Sikhs which permit such a divorce. As such the petitioner claims that Section 29(2) of the Hindu Marriage Act 1955 is attracted. Sub section of Section 29 of the Act provides that nothing contained in the Act shall be deemed to affect any right recognized by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage whether solemnized before or after the commencement of the Act. It is further argued that respondent no.11 had initiated litigation against her husband late Sardar Natha Singh during the latter’s lifetime for which payment of pension to respondent no.11 under the said Scheme was stopped by the authorities. In support of his contentions learned counsel cites the judgment of Gurdit Singh vs. Mst. Angrez Kaur and others reported at AIR 1968 SC 142 wherein the Supreme Court approved of the proposition that evidence could be accepted on prevalence of custom in the Jullundur District to lend validity to such a divorce without following the provisions of divorce as stipulated in the Hindu Marriage Act 1955. 4. Learned counsel next relies on Balwinder Singh vs. Smt. Gurpal Kaur reported at AIR 1985 Delhi 14 for the proposition that a divorce deed executed between spouses and duly attested by a notary public if sanctioned by the customs of the parties would render the marriage dissolved. 5. Learned counsel for the petitioner next cites Doddi Appa Rao vs. General Manager Telecom Rajahmundry reported at 1 CCC 146 wherein the Andhra Pradesh High Court held on the basis of a decree passed by a civil court that the marriage between the parties was dissolved as per caste custom and usage. 6. Counsel next relies on another judgment of the Andhra Pradesh High Court reported at 1992ALT 733wherein the court held on the basis of a registered deed and exclusive possession of the wife over the lands given to her under settlement that a valid divorce had taken place as per the customs of the parties. The evidence of witnesses was also 7. As such it is argued by the petitioner that the respondent authorities unlawfully withheld widow pension to the petitioner under the 1980 considered therein. Scheme. 8. Learned counsel appearing for respondent nos.1 2 and 4 submits that the petitioner’s claim for widow pension was rightly rejected since the validity of the divorce by the deed of declaration produced by the petitioner was not established by the petitioner. Learned counsel relies on Subramani and others vs. M. Chandralekha reported at9 SCC 407 for the proposition that a custom to be upheld is to be pleaded and proved by the party relying on the same. 9. However learned counsel advances a suggestion that the widow pension can be distributed equally between the first and second wives of the deceased freedom fighter if the court so directs. 10. For Section 29(2) of the 1955 Act to be invoked it has to be established by the party relying on a custom that the right of the party was recognized by custom to obtain the dissolution of a Hindu marriage. In the present case the petitioner did not approach the civil court for declaration regarding validity of the divorce deed. 11. There was nothing to prevent the petitioner from approaching the competent civil court for such declaration. The burden and initial onus lies on the petitioner to prove the existence of a custom having the force of law to be proved by evidence oral or documentary in order to attract the benefit of Section 29(2) of the Hindu Marriage Act. 12. Section 2(1)(b) of the Hindu Marriage Act 1955 stipulates that the Act applies to Sikhs as well. Thus the provisions of the Act including Section 13 thereofapplies to Sikhs in general. Admittedly the petitioner respondent no.11 and their deceased husband are were Sikhs by religion. Hence the marriage between the respondent no.11 and her deceased husband could only be dissolved by a decree of divorce passed by a competent court on any of the grounds as mentioned in Section 13 of the Act unless the existence of any contrary custom was proved by evidence. 13. In order to justify an exception to Section 13 within the purview of Section 29(2) the petitioner had to approach a civil court and establish by evidence that the dissolution of the marriage between the respondent no.11 and her deceased husband was recognized by custom. All Sikhs do not come within the purview of such exception unless any custom to the contrary is proved by cogent evidence. The respondent authorities do not have the jurisdiction in law to decide the matrimonial status of the private parties and or the validity of the deed of declaration which could only be done by adduction of adequate evidence before a civil court. Unfortunately neither does the writ court with its constraints in taking evidence on disputed questions of fact has the scope to decide such issue. 14. In Gurdit Singhthe Supreme Court was dealing with an issue which arose in a civil suit. The trial court had decreed the marriage in question to be valid. The appellate court reversed such decree on the premise that the marriage between the parties was invalid being not justified by any custom. Upon the issue being remitted to the trial court after giving the parties an opportunity to lead further evidence the trial court answered the issue regarding the existence of such custom in the negative which was endorsed by the appellate court. In second appeal the High Court held that a custom was proved under which Mst. Angrez Kaur respondent could validly marry Sunder Singh even though her first husband was alive. While considering such matter the Supreme Court observed that the witnesses examined on behalf of the appellant had admitted the existence of a custom permitting the Hindu husband to divorce his wife. Upon such premise the Supreme Court proceeded to endorse such view. 15. In Balwinder Singh the matter in issue before the Supreme Court also arose from a civil suit wherein the trial court declared the marriage solemnized between the parties in accordance with Hindu rites and ceremony as null and void and granted a decree of nullity of marriage. The appellate court had found that the evidence adduced by the appellant was not sufficient and reliable enough to establish the existence of the custom amongst the Sikhs Jats of District Amritsar to which District the appellant and its parents belonged under which the marriage between the appellant and his previous wife could be dissolved otherwise than through court as per the provisions of the Hindu Marriage Act. 16. While dealing with such question the Delhi High Court considered the evidence adduced by the parties and sanctioned the dissolution of marriage by execution of a deed of divorce. 17. The Andhra Pradesh High Court in Doddi Appa Raowas also considering a case where a civil court had decreed a suit for declaration that the marriage of the plaintiff and the defendant therein was dissolved as per caste custom and usage. In such context it was held by the Division Bench of the Andhra Pradesh High Court that the Central Administrative Tribunal ought to have honoured such decree. 18. In G. Thimma Reddy the learned Single Judge considered several factors apart from the registered deed of divorce including that the factum of divorce was disregarded on a flimsy ground that the stamp affixed to the document of divorce was in the name of a wrong person. The court also took into consideration the fact that the spouses were living separately and in possession of lands settled in their favour for which no need for divorce was there. Oral evidence was also adduced by several witnesses one of them a caste elder who had also attested the document. P.Ws 1 to 3 therein spoke of existing custom in the caste of the spouses sanctioning such divorce. Moreover the adjudication in the said report was in the context of a land dispute between the parties. 19. As such in each of the judgments cited by the petitioner a valid decree sectioning the respective documents of divorce had been passed by competent civil courts. In the present case however no such decree was obtained by the petitioner. 20. That apart it is pleaded by the writ petitioner herself that the Government of India Ministry of Home Affairs New Delhi sanctioned payment of political pension to the first wife that is respondent no.11 with effect from August 26 1984 by a letter dated February 14 1986 and Pension Payment Order was issued accordingly in favour of respondent no.11. For whatever reason such pension might have been withheld subsequently the initial grant of pension to respondent no. 11 is an endorsement of the fact that the first wife was found eligible for such pension by the respondent authorities and she had already started getting pension. 21. It is relevant to mention here that a suit in question was filed by respondent no.11 inter alia for declaration that she was the only married wife and the only widow of Sardar Natha Singh and was entitled to widow pension and that the present petitioner was not the wife and widow of Sardar Natha Singh. Learned counsel for the petitioner argues that the said suit was dismissed for default and the subsequent restoration application filed by respondent no.11 met with the same fate. As such it is contended that respondent no.11 is debarred from raising the contentions on which declaration was sought by her in the dismissed suit. 22. Order IX Rule 9 of the Code of Civil Procedure debars a plaintiff from bringing a fresh suit in respect of the same cause of action in the event of dismissal of a suit for default. However it is well settled that such a dismissal ipso facto would not take away the right of the plaintiff which was under consideration in the suit. Such right if available otherwise to the plaintiff in accordance with law subsists despite the dismissal of the suit for default. The plaintiff in such a suit may very well raise a defence on the basis of such right in a different suit or legal action and or may agitate the same right in a suit filed by her on a subsequent cause of action. 23. Thus in the present case the dismissal of the suit of respondent no.11 for default does not preclude the said respondent from staking her claim before any authority other than a civil court that too in a suit filed by her on the self same cause of action and or setting up a defence in the writ petition on the basis of such claim. 24. In the utter absence of any evidence let alone conclusive that the divorce decree executed purportedly between respondent no.11 and her deceased husband was endorsed by any valid custom the exception envisaged in Section 29(2) of the 1955 Hindu Marriage Act would not be attracted. Thus the spouses had to revert back to Section 13 of the Act which sanctions dissolution of marriage only by a decree of divorce for the dissolution of marriage to be valid in the eye of law. 25. Such facts coupled with the fact that pension was granted earlier in favour of respondent no.11 upon a valid sanction being issued by the respondent authorities it would be unjust to deprive respondent no.11 from such pension at the behest of the petitioner merely on the basis of the petitioner’s assertion on oath in this writ petition that a deed of divorce supported by valid and recognized customs was executed between respondent no.11 and her deceased husband. 26. I must note that in view of the long pending litigation between the private parties it would be lucrative to direct pension to be paid equally between the petitioner and respondent no.11. However such a course of action would be grossly illegal. Although my empathy goes fully with the petitioner who is an unemployed lady of about 63 years as per her own affidavit this court does not have the power to enact law but is bound by the provisions of law as the Parliament in its wisdom chose to promulgate. Where a conflict arises between individual conscience of the concerned Judge and judicial conscience supported by law of the land the former has to give way to the latter. 27. In such view of the matter the writ petition fails. Accordingly WPA No.2346 of 2018 is dismissed on contest without any order as to 28. Urgent certified copies of this order shall be supplied to the parties applying for the same upon due compliance of all requisite costs. Sabyasachi Bhattacharyya J. )

The petitioner was released on bail upon furnishing bail bonds after being apprehended under Section 392 of the Indian Penal Code: High court of Patna

The petitioner was taken into custody after being accused under Section 392 of the Indian Penal Code,” Punishment for robbery.” This arrest is in connection with Athmalgola PS Case No. 182 of 2018 dated 10.08.2018. This judgment was given in the high court of Judicature at Patna by honorable Mr. Justice Ahsanuddin Amanullah on the 20th of July  2021 in the case of Gautam Kumar versus the state of Bihar criminal miscellaneous No. 37707 of 2020, Mr. Arun Represented as the advocate for the petitioner and Mr. Yogendra Kumar represented as the additional Public Prosecutor, for the state of Bihar the proceedings of the court were held via video conference. The following are the facts of the case, the petitioner was accused of being a party to the looting of a motorcycle and mobile belonging to the informant even though his name was not mentioned in the FIR. The counsel for the petitioner held that the petitioner had nothing to do with the entire episode and is currently being harassed by the police. The co-accused was arrested as the motorcycle and mobile were recovered from him and he made a confession that did not include the petitioner’s name. The counsel held there has been a mistake of identifying the name mentioned in the confession as Gautam Kumar son of Saroj Kumar whereas the name of the petitioner was Gautam Kumar, but he is the son of Sukesh Singh. The counsel submitted that in the village many people residing there have similar names, therefore, the petitioner has been taken into custody due to mistaken identity and he has no connection with the crime. The petitioner is involved in another case Barh PS Case No. 271 of 2018, under Sections 307/34 of the Indian Penal Code which he is on bail, and the case was lodged due to some fight in the village. The additional public Prosecutor submitted when the recovery of the motorcycle and the mobile phone of the informant was recovered from the co-accused, in his confessional statement he named the petitioner. However, the name of the father was not controverted. After considering the facts and circumstances of the case the court held that the petitioner will be released on bail upon furnishing bail bonds of Rs. 25,000/- (twenty-five thousand) with two sureties of the like amount each to the satisfaction of the learned SDJM, in PS Case No. 182 of 2018, subject to the conditions laid down in Section 438(2)Cr. P.C., 1973, “(i) that one of the bailors shall be a close relative of the petitioner, (ii) that the petitioner and the bailors shall execute bond with regard to the good behavior of the petitioner, and (iii) that the petitioner shall also give an undertaking to the Court that he shall not indulge in any illegal/criminal activity.”  The court concluded that “Any violation of the terms and conditions of the bonds or the undertaking shall lead to cancellation of his bail bonds. The petitioner shall cooperate in the case and be present before the Court on each and every date. Failure to cooperate or being absent on two consecutive dates, without sufficient cause, shall also lead to the cancellation of his bail bonds. It shall also be open for the prosecution to bring any violation of the foregoing conditions of bail by the petitioner, to the notice of the Court concerned, which shall take immediate action on the same after giving the opportunity of hearing to the petitioner.”

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 377020 Arising Out of PS. Case No. 182 Year 2018 Thana ATHMALGOLA District Patna Gautam Kumar aged about 22 years Male Son of Sukesh Singh Resident of Village Achuara PS Barh District Patna The State of Bihar ... Petitioner s For the Petitioner s For the State Mr. Arun Advocate Mr. Yogendra Kumar Singh APP CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ... Opposite Party s ORAL JUDGMENT Date : 20 07 2021 The matter has been heard via video conferencing. 2. Heard Mr. Arun learned counsel for the petitioner and Mr. Yogendra Kumar Singh learned Additional Public Prosecutorfor the State 3. The petitioner apprehends arrest in connection with Athmalgola PS Case No. 1818 dated 10.08.2018 instituted under Section 392 of the Indian Penal Code. 4. The allegation against the petitioner though not named in the FIR is that he was party to the looting of the motorcycle and mobile of the informant 5. Learned counsel for the petitioner submitted that he has nothing to do with the entire episode and is being harassed by the police in the case. It was submitted that one co accused was Patna High Court CR. MISC. No.377020 dt.20 07 2021 apprehended from whom the looted mobile was recovered and on his confession other co accused were apprehended but he has not taken the name of the petitioner. It was submitted that the police thereafter arrested one Vikash Kumar as the looted motorcycle was parked near his house and then the police have shown that he has confessed and has taken the name of Gautam Kumar who had assisted in purchase of the stolen motorcycle. Learned counsel submitted that even as per the confessional statement the name is Gautam Kumar but he is said to be son of Saroj Kumar whereas though the petitioner is also named Gautam Kumar but he is son of Sukesh Singh. Learned counsel submitted that in the village of the petitioner there are four persons named Gautam Kumar. Thus it was submitted that the petitioner is not Gautam Kumar who has been named by co accused Vikash Kumar and most importantly he has no connection with the crime. Learned counsel submitted that though the petitioner has one other case against him being Barh PS Case No. 2718 but the same is under Sections 307 34 of the Indian Penal Code in which he is on bail and the same has also been lodged due to fight in the village 6. Learned APP submitted that co accused from whom the looted motorcycle was recovered has taken the name of the petitioner. However in view of the categorical statement made on Patna High Court CR. MISC. No.377020 dt.20 07 2021 oath in paragraphs no. 8 and 9 of the present petition learned APP could not explain the contradiction in the name of the father of the 7. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties in the event of arrest or surrender before the Court below within six weeks from today the petitioner be released on bail upon furnishing bail bonds of Rs. 25 000 with two sureties of the like amount each to the satisfaction of the learned SDJM Barh Patna in Athmalgola PS Case No. 1818 subject to the conditions laid down in Section 438(2) of the Code of Criminal Procedure 1973 and further that one of the bailors shall be a close relative of the petitioner that the petitioner and the bailors shall execute bond with regard to good behaviour of the petitioner andthat the petitioner shall also give an undertaking to the Court that he shall not indulge in any illegal criminal activity act in violation of any law statutory provisions tamper with the evidence or influence the witnesses Any violation of the terms and conditions of the bonds or the undertaking shall lead to cancellation of his bail bonds. The petitioner shall cooperate in the case and be present before the Court on each and every date. Failure to cooperate or being absent Patna High Court CR. MISC. No.377020 dt.20 07 2021 on two consecutive dates without sufficient cause shall also lead to cancellation of his bail bonds 8. It shall also be open for the prosecution to bring any violation of the foregoing conditions of bail by the petitioner to the notice of the Court concerned which shall take immediate action on the same after giving opportunity of hearing to the 9. The petition stands disposed off in the aforementioned (Ahsanuddin Amanullah J

Judgement rendered by a Probate Court is a judgement in rem: High court of Jammu and Kashmir

Once a will has been officially proven to be valid, the court cannot interfere and consider the validity of the will again in the proceedings. This was decided in the case of Saqib Ali Shah and others v. State of J&K and another [CRM(M) No. 611/2019 and CRM(M) No. 1421/2019] by Hon’ble Justice Sanjay Dhar at the High Court of Jammu and Kashmir. The facts of the case are the respondent of the case had made a complaint against the petitioners alleging that they have fabricated and forged a Will that was executed by the father of the respondent. Further, it was also alleged that a mutation has been attested in the revenue record as per the order of Probate passed by the learned Principal District Judge, Jammu in respect of the said will, but, in fact, the will do not bear the signature of the testator. After conducting preliminary verification, the impugned FIR came to be registered by the Police Station in Jammu. The petitioners also contended that as per the settled position of law, a Will, after it is probated, becomes conclusive proof with regard to its genuineness and it operates in rem. Thus, the question regarding the genuineness of the Will cannot be reopened by way of criminal proceedings. During the course of the investigation, the original Will Deed was sent to FSL, Jammu for comparison of signatures and expert opinion pertaining to Will Deed of the testator. As per the expert opinion, the report was found positive in favour of respondents. Counsel for the petitioners has argued that once the Will in question stands probated by the order. It was also asserted that the investigation of the instant case is at its infancy and the same cannot be scuttled at this stage. even if the genuineness of the Will in question has been proved in the probate proceedings, the said question can be reopened in the criminal proceeding fir which it referred to the case of Iqbal Singh Marwah and another vs. Meenakshi Marwah and another[ (2005) 4 SCC 370]. The Court decided that it is not open to this Court in these proceedings to examine and analyze the material on record and once the Court finds that the FIR discloses prima facie commission of a cognizable offence, the Court should stay its It also said that the law regarding the grant of probate or letters of administration has been the subject matter of discussion before the Supreme Court in the case of Surinder Kumar and ors vs. Gian Chand and ors [AIR 1957 SC 875] where the Court in the said judgment observed as under: “The judgment of the Probate Court must be presumed to have been obtained in accordance with the procedure prescribed by law and it is a judgment in rem. The objection that the respondents were not parties to it is thus unsustainable because of the nature of the judgment itself”. The Court categorically stated “the genuineness of the will which is the subject matter of the impugned FIR having been established in the probate proceedings, the same cannot again be called into question in criminal proceedings., once the marginal witnesses to a will depose about the genuineness of the Will and a finding is recorded with regard to the same by the Probate Court, it will not be legally permissible to reopen the said issue in criminal proceedings”. Click here to read the judgement

HIGH COURT OF JAMMU AND KASHMIR AT JAMMU THROUGH VIRTUAL MODE) CRM(M) No. 611 2019 CrlM No. 1421 2019 Reserved on 30.12.2020 Pronounced on 27 .01.2021 Petitioner(s) Through : Mr.Virender Bhat Advocate Saqib Ali Shah and others State of J&K and another Respondents(s) Through : Mr. Raman Sharma AAG for R 1. Ms. Meenakshi Salathia Advocate for R 2. Coram: HON’BLE MR. JUSTICE SANJAY DHAR JUDGE Through the medium of instant petition the petitioners have challenged FIR No. 49 2019 dated 14.10.2019 for offences under Sections 420 465 467 468 471 120 B RPC registered with Police Station Crime Branch Briefly stated the case of the petitioners No.2 complainant made a complaint against them before the Court of learned Judicial Magistrate 1st Class Jammu alleging therein that the petitioners have fabricated and forged a Will dated 16.10.1998 purported to have been executed by the father of respondent No.2 complainant. It was further alleged in the said complaint that the mutation has been attested in the CRM(M) 611 2019 revenue record as per the order of Probate passed by the learned Principal District Judge Jammu in respect of the said Will but in fact the said Will does not bear the signature of testator namely late Wazir Mohd. On the basis of order passed by the learned Judicial Magistrate 1st Class Munsiff) Jammu and after conducting preliminary verification the impugned FIR came to be registered by the Police Station Crime Branch Jammu. According to the petitioners the Will in question has been probated and on 31.12.2005 the learned Principal District Judge Jammu has passed an order in this behalf. It is also contended that respondent No.2 complainant has sworn an affidavit attested by the learned Judicial Magistrate 1st Class Jammu declaring that the Will in question is genuine. It is further contended that respondent No.2 complainant has filed a Civil Suit for declaring the Will in question as null and inoperative. The petitioners have gone on to contend that as per the settled position of law a Will after it is probated becomes a conclusive proof with regard to its genuineness and it operates in rem. Thus the question regarding the genuineness of the Will cannot be reopened by way of criminal Respondent No.1 Crime Branch Jammu has filed its response in which it has been averred that as per the written complaint lodged by respondent No.2 complainant the father of the complainant had purchased a plot of land measuring 1 kanal 10 marlas falling under khasra No. 123 min situated at village Chak Changerwan and in this regard half of the consideration amount was contributed by the complainant. It was further alleged in the complaint that the Will dated 16.10.1998 purported to have been executed by the father of respondent No.2 complainant according to which the aforesaid property was bequeathed by the testator in favour of his grandson namely petitioner No.3 and Mohd Aslam the son of the testator and uncle of petitioner No.3 in equal CRM(M) 611 2019 shares is forged. It was alleged in the complaint that the petitioners hatched a criminal conspiracy as a consequence whereof the aforesaid Will was forged and registered with Notary Public resulting in attestation of mutation in respect of the land in question in favour of petitioner No.3. According to respondent No.1 a preliminary verification was conducted and on the basis of the verification the allegations leveled in the complaint have been substantiated and it has come to fore that late Mohd Aslam Shah Sakib Ali Shah Sabina Shah Shahzad Kamran Shah in connivance with witnesses to the Will in question namely Nisar Ahmedand Imtiaz Ahmadin order to cause wrongful loss to respondent No.2 complainant on the basis of the Will Deed forged the said Will Deed and got the land in question mutated in their names. Accordingly the impugned FIR came to be registered and investigation of the case was set into motion. During the course of investigation the original Will Deed was sent to FSL Jammu for comparison of signatures and expert opinion pertaining to Will Deed of testator namely Wazir Mohd. As per the expert opinion the report was found positive in favour of respondent No.2 complainant. Respondent No.2 complainant has also resisted the petition by filing objections thereto. In its objections respondent No.2 has reiterated the allegations made by him in his complaint that is subject matter of investigation before respondent No.1. According to respondent No.2 the Will in question was prepared by the petitioners in an illegal and unlawful manner. Respondent No.2 has further contended that there are cuttings insertions and factual errors in the order whereby the Will in question has been probated by the learned Principal District Judge Jammu and not only this even the notice published by the said Court in the newspaper is self contradictory and the same was CRM(M) 611 2019 published in the newspaper which has very limited circulation. Respondent No.2 has admitted filing of a civil suit challenging the Will in question which is stated to be pending disposal before the Court of learned 2nd Additional Munsiff Jammu. I have heard learned counsel for the parties and perused the record of the Learned counsel for the petitioners has vehemently argued that once the Will in question stands probated by the order of learned Principal District Judge Jammu the same becomes conclusive as to the representative title against all persons. The learned counsel has further contended that the probate of a Will when granted establishes its genuineness and it cannot be questioned except in accordance with the provisions contained in the J&K Probate and Administration Act 1977 (hereinafter referred to as the ‘Act’). According to the learned counsel the genuineness of a Will cannot be reopened in the criminal proceedings by holding an investigation into the said question. On the other hand learned AAG for respondent No.1 has submitted that the civil and criminal proceedings deal with entirely different fields and findings recorded in one proceeding cannot be treated as binding in other. According to the learned counsel a civil case is decided on the basis of evidence led before the Court in which the civil proceedings are pending whereas the criminal proceedings with regard to the same fact are decided on the basis of evidence presented in those proceedings. Thus even if the genuineness of the Will in question has been proved in the probate proceedings the said question can be reopened in the criminal proceedings. In order to buttress his argument the learned counsel has relied upon the judgment of Supreme Court in the case of Iqbal Singh Marwah and another vs. Meenakshi Marwah and another 4 SCC 370. The learned counsel CRM(M) 611 2019 has further argued that the investigation of the instant case is at its infancy and the same cannot be scuttled at this stage. According to him it is not open to this Court in these proceedings to examine and analyze the material on record and once the Court finds that the FIR discloses prima facie commission of a cognizable offence the Court should stay its hand and allow the investigating agency to step in to initiate the probe to unearth the crime in accordance with the procedure prescribed in the Cr.P.C. In this regard reliance has been placed upon the judgment of Supreme Court in the case of Dineshbhai Chandubhai Patel vs. Stat eof Gujarat and others 3 SCC 104. Learned counsel for respondent No.2 while supporting the arguments of learned counsel for respondent No.1 has contended that there are certain overwritings cuttings and factual errors in the order of probate passed by the learned Principal District Judge Jammu and there are certain contradictions in the notice published in the newspaper during the probate proceedings. According to her these corrections overwritings and factual errors cast a grave doubt about the entire proceedings and as such the investigating agency should be allowed to probe the matter. While supporting the submission of learned counsel for respondent No.1 that scope of criminal and civil proceedings is distinct from each other and that the finding of a Civil Court is not binding upon criminal proceedings the learned counsel for respondent No.2 relied upon the judgments of the Supreme Court in Indian Oil Corporation vs. NEPC India Ltd and ors 2006 736 and of this Court in CRMC No. 264 2018 decided on 21.12.2018. The learned counsel has further contended that a judgment decree obtained by fraud is a nullity. She has relied upon the judgments of the Supreme Court in S.P.Chengalvaraya Naidu vs. Jagannath AIR 1994 SC 853 Dalip Singh vs. State of U.P. 2010SCC 114 and State of Telengana vs. Habib Abdullah Jeelani and ors 2017 CRM(M) 611 2019 SCC 779 There is no dispute to the fact that the Will dated 16.10.1998 registered with Notary Public on 25.11.1998 purported to have been executed by late Wazir Mohd has been probated vide order dated 31.12.2003 passed by the learned Principal District Judge Jammu and consequently the letter of probate dated 06.05.2004 has been issued by the said Court whereby the petitioner Shahzad Kamran Shah has been appointed as the Administrator of the Will in respect of part of the property contained therein. It is an admitted fact that respondent No.2 complainant has challenged the Will in question by way of a civil suit which is pending disposal before the 2nd Additional Munsiff Jammu. The question arises whether on the facts and circumstances of the case in view of the probate of the Will having been granted by the Principal District Judge Jammu it was competent for respondent No.1 to go into the question as to the genuineness of Will of the deceased namely Wazir Mohd. The law governing the probate of Wills at the relevant time was governed by the J&K Probate and Administration Act 1977 611 2019 movable or immovable of the deceased throughout the Province in which the same is or are granted and shall be conclusive as to the representative title against all debtors of the deceased and all persons holding property which belongs to him and shall afford full indemnity to all debtors paying their debts and all persons delivering up such property to the person to whom such probate or letters of administrator shall have been granted”. From a perusal of the aforequoted provisions it becomes clear that the probate of a Will when granted establishes the Will from the death of the testator and the effect of probate of Will over the property contained therein has conclusiveness attached to it. The law regarding the grant of probate or letters of administration has been subject matter of discussion before the Supreme Court in the case of Surinder Kumar and ors vs. Gian Chand and ors AIR 1957 SC 875. The Court in the said judgment observed as under: “The judgment of the Probate Court must be presumed to have been obtained in accordance with the procedure prescribed by law and it is a judgment in rem. The objection that the respondents were not parties to it is thus unsustainable because of the nature of the judgment itself”. Similarly in Syed Askari Hadi Ali Augustine vs. State and another 5 SCC 528 the Supreme Court observed “It is beyond any cavil that a Judgment rendered by a Probate Court is a Judgment in rem. It is binding on all Courts and authorities. A judgment in rem indisputably is conclusive in criminal as well as in a civil proceeding” In Smt. Rukmani Devi And Ors. vs Narendra Lal Gupta 1 SCC 144 the Supreme Court while interpreting the provisions contained in as under: Section 273 of Indian Succession Act which is in pari materia with Section 59 CRM(M) 611 2019 of J&K Probate and Administration Act held that a probate granted by a competent court is conclusive of the validity of such will until it is revoked and no evidence can be admitted to impeach it except in a proceeding taken for revoking the probate. The Court went on to hold that that a decision of the probate court being a judgment in rem would not only be binding on the parties to the probate proceedings but would be binding on the whole world. In Satya Charan Das and ors. vs Hrishikesh Karar and ors AIR 1959 Cal 795 the Supreme Court observed that the grant of probate establishes conclusively the legal character of the person to whom the grant is made. Further the grant is not only relevant but conclusive evidence against all. It is conclusive evidence of the validity and the execution of the Will and of the testamentary capacity of the testator. The same principle was reiterated and reaffirmed by the High Court of Calcutta in Gopichand Gupta vs Commissioner Of Wealth Tax West Bengal 1980 SCC Online Cal 332. While answering the question as to whether the Income Tax Appellate Tribunal was justified to go into the question as to the genuineness of the Will regarding which the probate had already been granted by the High Court the Court held that it was not open to the Tribunal to do so and to impose penalties on the ground that the Will was not genuine. It is thus absolutely clear that once a Will has been probated it is conclusive as to the execution and validity of the Will not only upon all the parties who might be before the Court but also upon all other persons whatever in all proceedings arising of the Will or claims under or connected therewith. The only remedy available to a person aggrieved of the order of probate is to approach the same Court by ay of an application for revocation of the probate. CRM(M) 611 2019 Chapter IV of the aforesaid Act provides the remedy in this regard. It is not open to an aggrieved person to question the genuineness of the Will which has been probated by resorting to criminal proceedings. The High Court of Calcutta in Kailash Chandra vs Nanda Kumar on 20 March 1944 AIR 1944 Cal 385 while observing that the judgment in a civil suit is operative only between the parties to the suit whereas a judgment relating to probate of a will being a Judgment in rem could not be revoked and set aside by a judgment which was only conclusive inter parties. The Court went on to hold that even when there is allegation of forgery the proper remedy of the party was to apply to the Probate Court and not to file a civil Court. From the forgoing discussion of the legal position regarding the validity of a will which has been probated by a competent Court it can safely be stated that the genuineness of the will which is subject matter of the impugned FIR having been established in the probate proceedings the same cannot again be called into question in criminal proceedings. So far as the contention of learned counsel for respondent No.1 that the civil and criminal proceedings are two separate fields and that there is no legal principle that the findings recorded in one proceeding may be treated as final and binding in the other is concerned there can be no dispute with regard to the said proposition but in probate proceedings once the marginal witnesses to a will depose about the genuineness of the Will and a finding is recorded with regard to the same by the Probate Court it will not be legally permissible to reopen the said issue in criminal proceedings. If the witnesses have deposed falsely before the Probate Court the proper course is to seek revocation of the probate and if it is established before the Probate Court that the witnesses have deposed falsely criminal prosecution can be launched not only against the witnesses but also against the propounders of the Will. The same however has CRM(M) 611 2019 to be in accordance with the relevant provisions contained in the Cr.PC in this regard. The ratio laid down by the Supreme Court in Iqbal Marwah’ case which has been relied upon by the learned counsel for respondent No.1 is not applicable to the facts of the instant case the same being distinguishable on facts. In the case before the Supreme Court the probate proceedings were still in progress when one of the parties to the proceedings claimed that the will of which probate was being sought is forged which in other words means that the Probate Court had not returned any finding with regard to the validity of the will. The Supreme Court while answering the question whether the provisions contained in Section 195of CrPC would be attracted when offences enumerated in the said provision have been committed with respect to a document before it has been produced or given in evidence in a proceeding in any Court held that in such cases the aforesaid provisions would not be attracted and that the same would get attracted only during the time when the document was in custodia legis. In the instant case the genuineness of the document i.e. Will has already been established in the probate proceedings and the same is sought to be reopened by way of criminal proceedings. Therefore the provisions of Section 59 of Probate and Administration Act would come into play which accords status of conclusiveness to the genuineness of the will unless revoked in terms of the provisions contained in Chapter IV of the said Act. The ratio laid down by the Supreme Court in the case of Iqbal Marwahwould therefore not apply to this case. On the same analogy the ratio laid down by the Courts in the cases referred to by learned counsel for respondent No.2 would not apply to this case as in none of those cases the Judgment of a Probate Court which CRM(M) 611 2019 operates as a Judgment in rem was in issue. The proper course for the respondent No.2 complainant in the instant case was to apply for revocation of the probate in terms of Section 50 of the Probate and Administration Act. In fact illustration to the explanation to Section 50 of the Act provides that probate of a will which is shown to be forged can be revoked. If the respondent No.2 herein would have succeeded in proceedings for revocation of the probate the question of launching of criminal prosecution against propounders of Will and witnesses would have arisen. Respondent No.2 complainant instead of choosing this method it appears has jumped the gun and directly launched the criminal proceedings against the petitioners without first seeking the revocation of the probate which is impermissible in law. far as the contention of learned counsel Nno.2 complainant that there are insertions overwritings and factual errors in the order of probate passed by learned Principal District Judge Jammu as also in the notice published in the newspaper is concerned the same is not subject matter either of the investigation or of the complaint lodged by him against the petitioners. In any case respondent No.2 complainant is at liberty to examine the original record of the Probate Court and if at all there is any unauthorized insertion overwriting in the order of the Court the complainant is at liberty to bring the same to the notice of the learned Principal District Judge Jammu and to seek action in accordance with law. For what has been discussed hereinbefore it becomes clear that it is not legally permissible for respondent No.1 to undertake investigation with regard to genuineness of the Will in question which has been proved to be genuine by the competent Court particularly when the probate granted by the competent Court in respect of the Will in question has not been revoked or altered till CRM(M) 611 2019 date. The judgment of the Probate Court in respect of the validity of the will being conclusive and binding on all persons it is not open to respondent No.1 to go behind it in these proceedings. Merely because during the preliminary verification of the case handwriting expert has rendered his opinion that the signatures of the testator on the Will in question appear to be not genuine is not a reason good enough to register the FIR particularly when the marginal witnesses to the Will in question have deposed with regard to the genuineness of the Will before the Probate Court and a finding regarding genuineness of the will has been recorded by the said Court. For the forgoing reasons continuance of criminal proceedings against the petitioners in the facts and circumstances of the case would amount to an abuse of process of law because the same would militate against the legal status of conclusiveness of genuineness of the will which stands probated by the orders of a competent Court. The case at hand is therefore fit one where this Court should exercise its inherent powers under Section 561 A of J&K Cr.P.C which is in pari materia with Section 482 of Central Cr.P.C to quash the impugned FIR. Accordingly the petition is allowed and the impugned F.I.R as well as the proceedings emanating therefrom are quashed. Judge 27.01.2021 Sanjeev PS Whether order is speaking: Yes Whether order is reportable:Yes

Claim to succession cannot be decided by a Revenue Tribunal: Telangana High Court

The claim of petitioners to succeed to tenancy rights of their ancestor cannot be decided by the Tahsildar and appropriate remedy from the civil court must be obtained. This was decreed by Hon’ble Justice Sri P. Naveen Rao in the case of B. Malla Reddy Vs. The state of Telangana [WRIT PETITION Nos.14924 AND 15031 of 2021] on the 27th of July 2021, before the Hon’ble High Court at Telangana. The brief facts of the case are, petitioners claim that they are lineal descendants of Ram Reddy, who was protected tenant of land to an extent of Acs.4.12 guntas. According to petitioners, late Ram Reddy was having four children, late B.Venkat Reddy, late B.Anti Reddy, late B.Janga Reddy and late B.Ram Reddy. Eldest son late B. Venkat Reddy died at very young age. Late B.Anti Reddy being the next eldest son, his name was recorded as protected tenant after the death of Ram Reddy. Petitioners are sons of B.Kista Reddy. Petitioners claim that on the above extent of land, they are also entitled to be shown as protected tenants and to secure Section 38-E certificate. Claiming so, they made an application in May, 2021, acknowledged by the office of the District Collector on 17.05.2021. Alleging inaction, this writ petition is filed. The counsel for the petitioners submit that, late B.Anthi Reddy and late Talla Antha Goud were surviving elder family members on the day when protected tenancy register was opened and therefore instead of reflecting the names of all sons, for convenience only the eldest surviving sons of protected tenants were shown. Merely because the elder surviving sons names are reflected in the records, it cannot be said that they alone are to be treated as protected tenants and the claims of other family members as protected tenants cannot be ignored. The counsel for the respondents submitted that, whether petitioners are to be treated as lineal descendants and entitled to be recognized as protected tenants along with late B.Anti Reddy and late Anta Goud, respectively, and that those two persons are not entitled to claim exclusive right to succeed, are matters to be adjudicated by the civil Court and unless and until civil Court gives a declaration in favour of petitioners, the revenue authorities cannot record their names as protected tenants. The court heard the submissions of both the counsels and observed the issue in light of section 40 and 99 of the Telangana Tenancy And Agricultural Lands Act, 1950. A reading of these sections revealed, “From a plain reading of Section 99 of the Act, 1950 it is apparent that jurisdiction of civil Court is not ousted on deciding the issue of succession claim. It only bars jurisdiction of civil Court against any decision made by the authority under the Act. This finer distinction has to be kept in mind to understand the scheme of the Act.” The court also relied on the judgement in Syed Abdul Majeed and others Vs Joint Collector-II, Ranga Reddy District and others 2006 (5) ALD 348  wherein, it was held that “Reading Section 40 of the Act and the Tenancy Rules together, it must be held that though under Section 40 of the Act, Tahsildar has no power to decide questions of succession to the protected tenancy, in the event of acquisition of rights, Tahsildar can conduct verification under Rule 14 of the Rules and order amendments in the register of mutations. Such a procedure is also contemplated under Section 4 of the A.P. Rights in Land and Pattadar Pass Book Act, 1971 and Rule 18 of the A.P. Rights in Land and Pattadar Pass Book Rules, 1989. The enquiry contemplated for amending mutation in the event of acquisition of rights either by survivorship or succession is altogether different from adjudicating the question of succession. Even while dealing with the application for recording for amendment of entries in the mutation register, if there is a dispute by the applicant, the MRO should relegate such party to the Civil Court.”

IN THE HIGH COURT OF JUDICATURE FOR THE STATE OF TELANGANA WRIT PETITION Nos.14924 AND 150321 Date: 27.07.2021 W.P.No.149221: B.Malla Reddy S o B. Janga Reddy Aged 68 years Occ: Agriculture R o H.No.1 34 Kummera Village Chevalla Mandal Ranga Reddy District and others. And The State of Telangana Revenue Rep. by its Principal Secretary Secretariat Hyderabad & others. Petitioners Respondents DATE OF JUDGMENT PRONOUNCED 27.07.2021 THE HON’BLE SRI JUSTICE P.NAVEEN RAO 1. Whether Reporters of Local Newspapers : No may be allowed to see the Judgments 2. Whether the copies of judgment may be : Yes marked to Law Reporters Journals 3. Whether Their Lordship wish to see the fair copy of the Judgment : No … Petitioners PNR J W.P.Nos.14924 & 150321 2 THE HON’BLE SRI JUSTICE P.NAVEEN RAO WRIT PETITION Nos.14924 & 150321 27.07.2021 B.Malla Reddy S o B. Janga Reddy Aged 68 years Occ: Agriculture R o H.No.1 34 Kummera Village Chevalla Mandal Ranga Reddy District and others. Vs. The State of Telangana Revenue rep. by its Principal Secretary Secretariat Hyderabad & others. …. Respondents respondents Counsel for the petitioners : Mr. L.Harish Counsel for the Respondents: Special Govt. Pleader for Gist : Head Note: Cases referred: 2006ALD 348 PNR J W.P.Nos.14924 & 150321 3 HONOURABLE SRI JUSTICE P.NAVEEN RAO WRIT PETITION Nos.14924 AND 150321 COMMON ORDER: These two writ petitions are filed with identical prayers praying to direct the respondent No.4 to initiate legal proceedings on the application filed under Section 40 of the Telangana Tenancy And Agricultural Lands Act 1950 of Kummera Village. According to petitioners late Ram Reddy was having four children late B.Venkat Reddy late B.Anti Reddy late B.Janga Reddy and late B.Ram Reddy. Eldest son late B. Venkat Reddy died at very young age. Late B.Anti Reddy being the next eldest son his name was recorded as protected tenant after the death of Ram Reddy. Petitioners are sons of B.Kista Reddy. Petitioners claim that on the above extent of land they are also entitled to be shown as protected tenants and to secure Section 38 E certificate. Claiming so they made an application in May 2021 PNR J W.P.Nos.14924 & 150321 4 acknowledged by the office of the District Collector on 17.05.2021. Alleging inaction this writ petition is filed. In W.P.No.15031 of 2021 petitioners claim that Talla Narsimhulu late Talla Anta Goud late Talla Ramaswamy and late Talla Anjaiah were children of protected tenant. Petitioner No.2 is son of late Anta Goud petitioner No.3 is son of late Ramaswamy and petitioner No.4 is son of late Anjaiah. After death of protected tenant being eldest of sons name of Talla Anta Goud was shown as protected tenant on land to an extent of Acs.4.12 guntas in Survey Nos.163 164 and 165 of Kummera Village. As lineal descendants of protected tenant all the family members are entitled to be declared as protected tenants of the total extent of land standing in the name of late Talla Anta Goud. Claiming so they made application in May 2021 acknowledged by the office of the District Collector on 17.05.2021. Alleging inaction this writ petition is filed. Learned counsel the petitioners contends that late B.Anthi Reddy and late Talla Antha Goud were surviving elder family members on the day when protected tenancy register was opened and therefore instead of reflecting the names of all sons for convenience only the eldest surviving sons of protected tenants were shown. Merely because the elder surviving sons names are reflected in the records it cannot be said that they alone are to be treated as protected tenants and the claims of other family members as protected tenants cannot be ignored. Learned counsel for the petitioners therefore submits that the District Collector PNR J W.P.Nos.14924 & 150321 5 ought to have acted upon the applications submitted by the petitioners and ought to have taken remedial steps to grant the relief prayed by petitioners. According to learned counsel for the petitioners Section 40 of the Act 1950 enables the lineal descendant to record his name as a protected tenant and the claim made by petitioners is in compliance with the provisions of Section 40 of the Act 1950. Learned counsel for the petitioners further contends that the issue arising out of the provisions of the Act 1950 is to be decided by the revenue authorities only and the jurisdiction of the civil Court is ousted in view of Section 99 of the Act 1950. Therefore only the revenue authority has to consider such application. Therefore there is no requirement to seek declaration about their entitlement to be treated as lineal descendants of the protected tenants and to seek appropriate relief. Learned Special Government Pleader contends that the issue whether petitioners are to be treated as lineal descendants and entitled to be recognized as protected tenants along with late B.Anti Reddy and late Anta Goud respectively and that those two persons are not entitled to claim exclusive right to succeed are matters to be adjudicated by the civil Court and unless and until civil Court gives a declaration in favour of petitioners the revenue authorities cannot record their names as protected tenants. He further submits that the scope of Section 40 of the Act 1950 was considered by this Court in Syed Abdul Majeed and others Vs PNR J W.P.Nos.14924 & 150321 6 Joint Collector II Ranga Reddy District and others1 and this Court held that it is not within the purview of the revenue authorities to decide the claims of succession to recognize them as protected tenants. In substance the claim of the petitioners is as lineal descendants they should get share in the land originally in occupation by the protected tenant but cannot devolve on only late B.Anti Reddy and late Tella Antha Goud respectively. Therefore filed application under Section 40 of the Act 1950. 10. The for consideration is whether descendants of protected tenant are entitled to claim devolving of tenancy rights to them on land standing in the name of one of the children of protected tenant. There are two aspects to the issue. Firstly whether the claim of petitioners to succeed to tenancy rights of their ancestor can be decided by the Tahsildar and secondly the entitlement of petitioners to recognise them as protected tenants to subject lands. 11. To consider the issue it is necessary to look into the provisions of Sections 402 and 993 of the Act 1950. Section 40 of 1 2006ALD 348 2 40.All rights of a protected tenant shall be heritable. 2) If a protected tenant dies his heir or heirs shall be entitled to hold the tenancy on the same terms and conditions on which such protected tenant was holding the land at the time of his death 53[and such heirs may notwithstanding anything contained in this Act sub divide interse according to their shares the land comprised in the tenancy to which they have succeeded.] 3) If a protected tenant dies without leaving any heirs all his rights shall be extinguished. Explanation: The following persons only shall be deemed to be the heirs of a protected tenant for the purposes of this section: a) his legitimate lineal descendants by blood or adoption in the absence of any such descendants his widow for so long as she does not remarry. 4) The interest of a protected tenant in the land held by him as a protected tenant shall form sixty per cent of the market value of all the interests in the land and that of the landholder and of persons claiming under him shall be limited to the remaining forty per cent.]2 3 99.[Save as provided in this Act]3 no Civil Court shall have jurisdiction to settle decide or deal with any question which is by or under this Act required to be settled decided or dealt with by the Tahsildar Tribunal or Collector or by the Board of Revenue or Government. 2) No order of the Tahsildar Tribunal or Collector or of the Board of Revenue or Government made under this Act shall be questioned in any Civil or Criminal Court. PNR J W.P.Nos.14924 & 150321 7 the Act 1950 recognises heirs’ right to succeed to protected tenancy. Section 99 of the Act 1950 bars jurisdiction of Civil Court on any issue settled decided or dealt with by the authorities under the Act. 12. Claim to succession cannot be decided by a Revenue Tribunal and a person claiming to have succeeded to a right or interest of his ancestor vested in a property has to seek declaration from the civil Court. Once such declaration is granted by the civil Court he can make an application under Section 40 of the Act 1950. From a plain reading of Section 99 of the Act 1950 it is apparent that jurisdiction of civil Court is not ousted on deciding the issue of succession claim. It only bars jurisdiction of civil Court against any decision made by the authority under the Act. This finer distinction has to be kept in mind to understand the scheme of the Act. In Syed Abdul Majeed this Court considered the scope of Section 40 of the Act 1950. Learned single Judge held as 11. There cannot be any doubt that with effect from the date of notification issued by the Government of Andhra Pradesh every protected tenant in Telangana Area shall be deemed to be the full owner of the land and the land shall stand transferred and vest in such protected tenant. Therefore when once the land becomes absolute property of the protected tenant such property can be held by the protected tenant like any owner and the law of succession applies. In case of death of protected tenant who obtained a certificate under Section 38E it goes without saying that property shall be deemed to be self acquired property and all the legal heirs can partition the same or deal with the property as they like. Therefore Section 40 of the Act which declares right of protected tenancy heritable would be insignificant. When such is the case the question of MRO deciding issues of succession to the property held by protected tenant which was later stood transferred and vested by reason of Sub sectionof Section 38E of the Act would not arise. PNR J W.P.Nos.14924 & 150321 8 12. The position in the case of protected tenancy in respect of which a certificate under Section 38E of the Act is not obtained is no different. Section 40 of the Act only declares that protected tenancy is heritable and that legitimate lineal descendants by blood or adoption of protected tenant shall be entitled to hold tenancy on the same terms and conditions on which such protected tenant was holding the land at the time of his death. The same does not confer any power on any Revenue Authority much less MRO to decide disputed questions of succession. For instance if a question arises as to whether a person claims that he is a legitimate lineal descendant by blood or adoption can it be decided by MRO. Legitimacy of a child is a matter for the Court to decide determining on the evidence as well as presumptions well recognized in law. Similarly if there is a dispute between two or more persons claiming to be lineal descendants of the protected tenant if their predecessor had already obtained a certificate under Section 38E of the Act and became absolute owner it is not for the MRO to decide the question Similarly in the case of a protected tenant who did not obtain a certificate under Section 32 of the Act the MRO cannot decide the question though it can be a matter of enquiry under the Rules which essentially deal with preparation of preliminary record of tenancies of agricultural lands. 13. XXXX 14. XXXX 15. Reading Section 40 of the Act and the Tenancy Rules together it must be held that though under Section 40 of the Act Tahsildar has no power to decide questions of succession to the protected tenancy in the event of acquisition of rights Tahsildar can conduct verification under Rule 14 of the Rules and order amendments in the register of mutations. Such a procedure is also contemplated under Section 4 of the A.P. Rights in Land and Pattadar Pass Book Act 1971 and Rule 18 of the A.P. Rights in Land and Pattadar Pass Book Rules 1989. The enquiry contemplated for amending mutation in the event of acquisition of rights either by survivorship or succession is altogether different from adjudicating the question of succession. Even while dealing with the application for recording for amendment of entries in the mutation register if there is a dispute by the applicant the MRO should relegate such party to the Civil Court. 16. This Court in an unreported judgment in W.P. No. 7430 of 2000 held that the question as to who are the legal heirs of a deceased protected tenant has to be decided by a competent Court of civil jurisdiction. A similar view was expressed in another unreported judgment in W.P. No. 7018 of 2000. The decisions cited by the learned Counsel for the petitioner nowhere lay down that the Tahsildar MRO is conferred with the power to decide questions of succession. By the very nature of enquiry involved in such application the Tahsildar MRO is not competent to decide questions of succession.” It is not in dispute that Protected Tenancy Register reflects the name of late B.Anti Reddy and late Tella Antha Goud respectively. In what circumstances their names were reflected is not known. The present status of the land is also not stated by the petitioners. Affidavits are silent as to whether Section 38 E PNR J W.P.Nos.14924 & 150321 9 certificates were granted and further alienation has taken place. Affidavits are also silent on how the revenue entries reflect the possession. Petitioners have only filed entries of Tenancy Register and applications made by them under Section 40 of the Act 1950. 15. Even assuming what is contended by petitioners is true and Section 38 E certificates were not issued to those two persons and lands in issue were not alienated no third party interests are created petitioners have to first assert their right to succeed to tenancy of their ancestors on the subject lands by availing the civil law remedy if so available. Until and unless the Civil Court grants the declaration holding that petitioners are entitled to succeed to the tenancy rights on land hitherto standing in the name of protected tenant they cannot go to the next stage. The Writ Petitions are misconceived. They are accordingly dismissed leaving it open to the petitioners to work out civil law remedy subject to law of limitation. Pending miscellaneous applications if any pending stand closed. JUSTICE P.NAVEEN RAO PNR J W.P.Nos.14924 & 150321 10 HONOURABLE SRI JUSTICE P.NAVEEN RAO WRIT PETITION Nos.14924 & 150321

A change in policy must be made fairly and should not give the impression that it was so done arbitrarily or by any ulterior criteria: High Court of Delhi

A person may have a “legitimate expectation” of being treated in a certain way by an administrative authority even though he has no legal right in private law to receive such treatment. A change in policy must be made fairly and should not give the impression that it was so done arbitrarily or by any ulterior criteria. To dismiss a legitimate claim, simply on the account of a technicality would cause grave and irreparable harm to faith of general public in welfare schemes. These were stated by High Court of Delhi, consisting Justice Rekha Palli in the case of Shakti Industries vs. Union of India [W.P.(C) 6916/2020] on 13.01.2022. The facts of the case are that on 10.04.2007, the MOFPI launched the TUEM Scheme, with a view to advance the technology used in the industry by reducing the wastage of agricultural and horticultural produce for the purpose of assisting entrepreneurs to set up food processing units. As per the guidelines, issued under the TUEM Scheme, the Banks/Financial Institutions were assigned the responsibility of receiving the application of grants-in-aid. The petitioner, a registered partnership firm involved in the business of producing Khachighani Mustard oil, being eligible applied under the TUEM Scheme. The said application for grant-in-aid was of Rs 24,53,000. This amount was payable in two instalments, and based on the petitioner’s application, the first instalment of Rs 12,26,500/- was released in the favour of the petitioner on 16.02.2017. The petitioner then, armed with a utilization certificate dated 27.03.2017, in respect of the first instalment as per the terms of the TUEM Scheme applied for the second instalment, through its nodal bank (Punjab National Bank) on 28.03.2017. After a period of one year, the respondent communicated certain deficiencies in the petitioner’s application, with a direction to rectify the same within a period of 45 days. The bank after seeking certain clarifications from the petitioner, submitted its reply to the respondents after rectification of the deficiencies. However, since the amount of the second instalment was not released, the petitioner made representations to the respondent on 27.07.2019, 12.08.2019, 29.08.2019, 10.09.2019 but received no response thereto. Finally the petitioner sent a legal notice on 20.12.2019, in response whereto the impugned communication, rejecting the petitioner’s prayer, was issued. The petitioner was informed that since the TUEM Scheme already stood closed. The learned Counsel for the petitioner submitted that once the petitioner’s application for ‘grant-in-aid’ for setting up a food processing unit was approved on 09.04.2009 before the TUEM Scheme was closed, the petitioner’s prayer for release of the second instalment could not be rejected on the ground that the TUEM Scheme stood closed. Furthermore, the respondent having itself released the amount towards the first instalment on 16.02.2017, it could not have refused to process the petitioner’s application for the second instalment, on the ground that it was submitted after the closure of the said TUEM Scheme on 01.04.2012. He, further submitted that the petitioner had after approval of its application under the TUEM Scheme expanded its Mustard Oil unit and therefore, the respondent could not refuse to release the amount already sanctioned in its favour, merely on the ground of purported delay. The learned Counsel for the respondent submitted that once the TUEM Scheme had already come to an end, the respondent had no obligation to consider the petitioner’s claim at such a belated stage. He, therefore, contended that the impugned communication rejecting the petitioner’s claim was rightly passed and the present writ petition is liable to be dismissed.

Via Video Conferencing IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 13.01.2022 Petitioner Through Mr. Parikshit Mahipal Adv. Through Mr. Amit Mahajan Adv. ….. Respondent W.P.(C) 6916 2020 SHAKTI INDUSTRIES REKHA PALLI JUNION OF INDIA HON BLE MS. JUSTICE REKHA PALLI The present petition under Article 226 of the Constitution of India seeks quashing of the communication dated 04.02.2020 issued by the respondent Ministry of Food Processing Industrieswhereby the petitioner’s prayer for release of the second instalment of grant in aid under the Scheme for Technology Upgradation Establishment Modernizationwas rejected. Consequently the petitioner also seeks a direction to the respondent to forthwith release the balance amount payable towards the second instalment under the TUEM Scheme for grant in aid. On 10.04.2007 the MOFPI launched the TUEM Scheme with a view to advance the technology used in the industry by reducing the wastage of agricultural and horticultural produce for the purpose of assisting W.P.(C) 6916 2020 entrepreneurs to set up food processing units. All eligible food processing units under various sectors were to be provided financial assistance of 25% of the cost of the plant machinery and technical civil works subject to a ceiling of Rs 50.00 lakh in general areas and of 33.33% in difficult and North Eastern areas with a ceiling of Rs 75.00 lakh. As per the guidelines issued under the TUEM Scheme the Banks Financial Institutions were assigned the responsibility of receiving the application of grants in aid calculating the grant payable under the guidelines uploading the online requisition of the grant through the E portal verifying the documents required to be submitted by the firm and then forwarding these documents to the MOFPI through the Nodal Bank of the applicant. Under the TUEM Scheme the grants in aid were also to be released to the concerned Bank which was then responsible for the disbursement of the grant to the beneficiaries. The petitioner a registered partnership firm involved in the business of producing Khachighani Mustard oil being eligible applied under the TUEM Scheme on 20.01.2009. The said application for grant in aid of Rs 24 53 000 for the purpose of carrying out expansion work was sanctioned and approved on 09.04.2009. This amount was payable in two instalments and based on the petitioner’s application the first instalment of Rs 12 26 500 was released in the favour of the petitioner on 16.02.2017. The petitioner then armed with a utilization certificate dated 27.03.2017 in respect of the first instalment as per the terms of the TUEM Scheme applied for the second instalment through its nodal bank on 28.03.2017. After a period of one year on 27.03.2018 the respondent communicated certain deficiencies in the petitioner’s W.P.(C) 6916 2020 application to the petitioner’s bank with a direction to rectify the same within a period of 45 days. The bank after seeking certain clarifications from the petitioner vide its letter dated 15.11.2018 submitted its reply to the respondents after rectification of the deficiencies. However since the amount of the second instalment was not released the petitioner made representations to the respondent on 27.07.2019 12.08.2019 29.08.2019 10.09.2019 but received no response thereto. Finally the petitioner sent a legal notice on 20.12.2019 in response whereto the impugned communication rejecting the petitioner’s prayer was issued. The petitioner was informed that since the TUEM Scheme already stood closed w.e.f. from 01.04.2012 its request could not be processed any further at this stage. It is in these circumstances that the writ petition came to be filed. In support of the petition learned counsel for the petitioner submits that once the petitioner’s application for ‘grant in aid’ for setting up a food processing unit was approved on 09.04.2009 i.e. much before the TUEM Scheme was closed the petitioner’s prayer for release of the second instalment could not be rejected on the ground that the TUEM Scheme stood closed. The petitioner had in fact barely after one month of the release of the first instalment applied for the amount payable under the second instalment and therefore even if there was some delay on the part of its nodal bank in clarifying the issues raised by the respondent on 27.03.2018 the petitioner’s claim could not be rejected. Furthermore the respondent having itself released the amount towards the first instalment on 16.02.2017 it could not have refused to process the petitioner’s application for the second instalment on the ground W.P.(C) 6916 2020 that it was submitted after the closure of the said TUEM Scheme on 01.04.2012. He further submits that the petitioner had after approval of its application under the TUEM Scheme for sanctioning grant in aid expanded its Mustard Oil unit and therefore the respondent could not refuse to release the amount already sanctioned in its favour merely on the ground of purported delay. He therefore prays that the writ petition be allowed and the respondent be directed to forthwith release the amount payable towards the second instalment. 2010) 3 SCC 274. Upon notice being issued a counter affidavit has been filed wherein the respondent has merely stated that the TUEM Scheme which was initially launched on 10.04.2007 was subsumed with another scheme namely ‘National Mission on Food Processing’ with effect from 01.04.2012 which scheme also came to an end in the year 2015 whereafter only committed liabilities if found in order were being disposed of. It has further been averred that since there were deficiencies in the petitioner’s applications received through its nodal bank on 28.03.2017 the petitioner’s bank was on 27.03.2018 directed to remove the deficiencies and furnish the requisite documents within a period of 45 days so that the petitioner’s request for release of the second instalment could be considered in accordance with the TUEM Scheme. The petitioner however slept over the same and its bank furnished the necessary clarification only on 15.11.2018 i.e. after a period of almost 8 months at which point the respondent was no longer obliged to consider the petitioner’s claim. 10. Mr. Mahajan learned counsel for the respondent while reiterating the stand taken by the respondent in the counter affidavit submits that once the TUEM Scheme had already come to an end the respondent had no W.P.(C) 6916 2020 obligation to consider the petitioner’s claim at such a belated stage. He therefore contends impugned communication rejecting petitioner’s claim was rightly passed and the present writ petition is liable to be dismissed. 11. Having considered the submissions of learned counsel for the parties I find absolutely no merit in the respondent’s plea. Once it is the respondent’s own stand that despite the TUEM Scheme having come to an end on 01.04.2012 the respondent required the petitioner to submit the necessary documents on 27.03.2018 it is evident that the respondent was well aware that merely because the aforesaid TUEM Scheme was no longer in operation the beneficiaries like the petitioner who had already been registered thereunder could not be deprived of their entitlement in terms of the TUEM Scheme. Even otherwise once the respondent after having received the request for release of the second instalment on 27.03.2017 itself took one year to communicate the deficiencies to the petitioner’s bank on 27.03.2018 cannot now be allowed to claim that the response from the petitioner having been received belatedly on 15.11.2018 no cognizance was required to be taken thereof. It also has to be kept in mind that the TUEM Scheme was beneficial in nature and therefore has to be interpreted in a purposive manner and keeping in mind the objective behind the scheme which was to promote small scale industries by granting them financial assistance. To dismiss a legitimate claim simply on the account of a technicality would cause grave and irreparable harm not only to the petitioner but also the faith of general public in these welfare schemes. In this regard reference may be made to the observations of the Apex Court in paragraphs 8 and 9 of Bannari Amman W.P.(C) 6916 2020 Sugars Ltd. v. CTO 2004 SCC OnLine SC 146 the same are reproduced as “8. A person may have a "legitimate expectation" of being treated in a certain way by an administrative authority even though he has no legal right in private law to receive such treatment. The expectation may arise either from a representation or promise made by the authority including an implied representation or from consistent past practice. The doctrine of legitimate expectation has an important place in the developing law of judicial review. It is however not necessary to explore the doctrine in this case it is enough merely to note that a legitimate expectation can provide a sufficient interest to enable one who cannot point to the existence of a substantive right to obtain the leave of the court to apply for judicial review. It is generally agreed that legitimate expectation" gives the applicant sufficient locus standi for judicial review and that the doctrine of legitimate expectation to be confined mostly to right of a fair hearing before a decision which results in negativing a promise or withdrawing an undertaking is taken. The doctrine does not give scope to claim relief straightaway from the administrative authorities as no crystallised right as such is involved. The protection of such legitimate expectation does not require the fulfilment of the expectation where an overriding public interest requires otherwise. In other words where a person s legitimate expectation is not fulfilled by taking a particular decision then the decision maker should justify the denial of such expectation by showing some overriding public interest. 9. While the discretion to change the policy in exercise of the executive power when not trammelled by any statute or rule is wide enough what is imperative and implicit in terms of Article 14 is that a change in policy must be made fairly and should not give the impression that it was so done arbitrarily or by any ulterior criteria. The wide sweep of Article 14 and the requirement of every State action qualifying for its validity W.P.(C) 6916 2020 on this touchstone irrespective of the field of activity of the State is an accepted tenet. The basic requirement of Article 14 is fairness in action by the State and non arbitrariness in essence and substance is the heartbeat of fair play. Actions are amenable in the panorama of judicial review only to the extent that the State must act validly for discernible reasons not whimsically for any ulterior purpose. The meaning and true import and concept of arbitrariness is more easily visualised than precisely defined. A question whether the impugned action is arbitrary or not is to be ultimately answered on the facts and circumstances of a given case. A basic and obvious test to apply in such cases is to see whether there is any discernible principle emerging from the impugned action and if so does it really satisfy the test of reasonableness.” In the present case neither has the respondent been able to point out any overriding larger public interest to deny the petitioner the amount it was entitled to receive as grant in aid nor was there in my view any inordinate delay on the part of the petitioner so as to deprive it of the second instalment under the TUEM Scheme. It is an admitted fact that the petitioner has spent the amount received as the first instalment to make certain changes in the nature of expansion to its Oil Mill in furtherance of the terms of the TUEM Scheme. I may also note that the TUEM Scheme was been issued with the objective of development and upgradation of certain food processing industries and the respondent’s refusal to release the amount of the second instalment will be contrary to the said objective. 14. For the aforesaid reasons the impugned communication being wholly unsustainable is quashed. The respondent is directed to consider the petitioner’s claim on its own merits and pass a reasoned and speaking order within a period of four weeks. In case the respondent needs any further documents from the petitioner necessary information in this regard will be W.P.(C) 6916 2020 communicated to the petitioner as also to the learned counsel for the petitioner who will then expeditiously submit all documents as may be required and in case found to be in order the amount will be released expeditiously. Needless to state the petitioner’s claim will not be rejected solely on the ground of delay. 15. The petition is accordingly allowed in the aforesaid terms. JANUARY 13 2022 REKHA PALLI J W.P.(C) 6916 2020

When an appeal order is not decided on merits then it cannot be said that the order has attained complete finality: Meghalaya High Court

The order impugned would govern the decision-making process at the writ court stage, the independent petitions filed by the present applicants may suffer the same fate. Such an opinion was held by The Hon’ble High Court of Meghalaya before The Hon’ble Mr. Chief Justice Sanjib Banerjee and The Hon’ble Mr. Justice W. Diengdoh in the matter of Srilekha Das Purkayastha & ors Vs. Director-General, Assam Rifles & ors [MC (WA) No.67/2021].  The facts of the case were associated with an application filed under Section 5 of the Limitation Act, 1963 who was granted leave to intervene in an appeal that was dismissed as withdrawn. The order passed on September 26, 2018, was evident enough that the grant of leave given to the present applicants to intercede on behalf of the applicants that writ petitions were filed. Moreover, the appeal in WA No.78 of 2016 would govern the principle issue of the writ petition filed by the applicants.  It was found that withdrawn leave was granted to the applicants in MC (WA) No.9 of 2018 to file a fresh writ appeal at the time when WA No.78 of 2016 was permitted to do so. On behalf of the applicant, it was submitted that as the decision-making process at the writ court stage was to be governed by the impugned order WA No.78 of 2016 then the independent petitions filed by the present applicants may suffer the same fate. Therefore, in such situations, it was open to the applicants to pursue their writ petitions in accordance with the law and even if the learned Single Bench found embarrassment in passing any order different from the said impugned order, the applicants had the right to prefer appeals from the individual writ petitions. The Hon’ble Court held that “Accordingly, the present application is considered as superfluous and dismissed with liberty to the applicants to challenge any order that may be passed on the writ petitions filed by them covering the same or similar issues… Accordingly, WA No.19 of 2021 and MC (WA) No.69 of 2021 are dismissed at the receiving stage.”

Serial No.02 Regular List HIGH COURT OF MEGHALAYA AT SHILLONG MCNo.67 2021 Date of Order: 25.11.2021 Srilekha Das Purkayastha & ors Vs. Director General Assam Rifles & ors Hon’ble Mr. Justice Sanjib Banerjee Chief Justice Hon’ble Mr. Justice W. Diengdoh Judge For the Petitioner Appellant(s) For the Respondent(s) i) Whether approved for reporting in Law journals etc.: ii) Whether approved for publication in press: Mr. MK Choudhury Sr.Adv with Mr. TN Srivinasan Adv Mr. R Deb Nath CGC Mr. N Syngkon Adv for R 2 3 & 4 JUDGMENT:(Oral) 1. The present application under Section 5 of the Limitation Act 1963 has been filed by would be appellants who had been granted leave to intervene in an appeal that has since been dismissed as withdrawn. 2. It will be evident from the order dated September 26 2018 by which leave was granted to the present applicants to intervene in the appeal that writ petitions had been filed on behalf of the applicants and the principle issue decided by the order under appeal in WA No.78 of 2016 would govern the writ petitions filed by these applicants. 3. As far as WA No.78 of 2016 is concerned the appeal was permitted to be withdrawn by an order dated October 22 2021 since the notice challenged by the writ petitioner therein was withdrawn and as such the relevant writ petitioner’s cause of action did not survive. 4. However at the time that WA No.716 was permitted to be withdrawn leave was granted to the applicants in MCNo.18 to file a fresh writ appeal. The present application for condonation of delay has been filed in connection with an appeal proposed from the same order that was assailed in WA No.716. 5. It is submitted on behalf of the applicants that since the order impugned in WA No.716 would govern the decision making process at the writ court stage the independent petitions filed by the present applicants may suffer the same fate. 6. It may be observed that the order impugned in WA No.716 was carried in an appeal. However the appeal was not decided on merits but was permitted to be withdrawn. In such a scenario the order impugned in WA No.78 of 2016 cannot be said to have been attained complete finality. In such circumstances it will be open to the applicants to pursue their writ petitions in accordance with law and even if the learned Single Bench finds embarrassment in passing any order different from the order impugned in WA No.716 the applicants will have the right to prefer appeals from the individual writ petitions. 7. Accordingly the present application is considered as superfluous and dismissed with liberty to the applicants to challenge any order that may be passed on the writ petitions filed by them covering the same or similar 8. There will be no order as to costs. 9. Accordingly WA No.19 of 2021 and MC No.69 of 2021 are dismissed at the receiving stage. W. Diengdoh) Judge Chief Justice Meghalaya “Lam DR PS”

Videography during election without causing any manner of disturbance to the voters shall be permitted: Kerala High Court

During the process of election, videography shall be permitted, without causing any manner of disturbance to the voters and officials or in any manner interfering with the balloting done in the polling booths. This was decided in the case of Ajitha K. vs The Returning Officer & Ors [W.P.(C) No.3025 OF 2021(C)] and the judgement was given by Hon’ble Mr. Justice Anil K. Narendran. The petition was filed by the President of the managing committee of Pattanur Village Vanitha Co-operative Society Ltd., has filed this writ petition under Article 226 of the Consitution of India, seeking a writ of mandamus commanding the 1st respondent to verify the validity of the identity card of each voter with the Form 6B register maintained in the Society, in the presence of the 4 th respondent Secretary in the election to the managing committee of the Pattanur Village Vanitha Co-operative Society Ltd. The petitioner has also sought for a writ of mandamus commanding the respondents to take all necessary steps for conducting fair and transparent election to the new managing committee of Pattanur Village Vanitha Co-operative Society. It would be submitted by the learned Senior Counsel for the State Cooperative Election Commission that the 1st respondent, Returning Officer shall take necessary steps to ensure free and fair election to the managing committee of the Society in question. Videography of the process of the election can be arranged at the request of the petitioner, on condition that the entire expense has to be met by the petitioner herself. It was stated in the judgement that, “If the petitioner makes a written request before the 1st respondent Returning Officer to videograph the process of election, at her own expenses, the said request shall be favourably considered by the said respondent. Such videography shall be permitted without causing any manner of disturbance to the voters and officials or in any manner interfering with the balloting done in the polling booths.”

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY THE 12TH DAY OF FEBRUARY 2021 23RD MAGHA 1942 W.P.(C) No.3025 OF 2021(C AGED 42 YEARS W O. SRENDRAN.C. PPK BHAVAN PATTANUR THALASSERY TALUK KANUR 670 595 BY ADV. SRI.PRANOY K.KOTTARAM THE RETURNING OFFICER ELECTION TO THE PATTANUR VILLAGE VANITHA CO OPERATIVE SOCIETY KOLAYAD UNIT INSPECTOR OFFICE OF THE ASST. REGISTRARKUTHUPARAMBA KANNUR 670 643 THE SUPERINTENDENT OF POLICE OFFICE OF THE SUPERINTENDENT OF POLICE TALAP KANNUR CIRCLE INSPECTOR OF POLICE POLICE STATION MATTANNUR KANNUR 670702 THE SECRETARY PATTANUR VILLAGE VANITHA CO OPERATIVE SOCIETY LIMITED NO. C. 1254 PATTANURKANNUR 670 SRI GRASHIOUS KURIAKOSEFOR PETITIONER SRI SUNIL NATH N.B GOVERNMENT PLEADER SRI LAKSHMI NARAYAN R1 SRI SIVARAMAN P.L R4 THIS WRIT PETITION HAVING COME UP FOR ADMISSION ON 12.02.2021 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING W.P.(C) No.3025 OF 2021(C JUDGMENT The petitioner who is the President of the managing committee of Pattanur Village Vanitha Co operative Society Ltd. has filed this writ petition under Article 226 of the Consitution of India seeking a writ of mandamus commanding the 1st respondent to verify the validity of the identity card of each voter with the Form 6B register maintained in the Society in the presence of the 4th respondent Secretary in the election to the managing committee of the Pattanur Village Vanitha Co operative Society Ltd scheduled to be conducted on 14.02.2021. The petitioner has also sought for a writ of mandamus commanding the respondents to take all necessary steps for conducting fair and transparent election to the new managing committee of Pattanur Village Vanitha Co operative Society. Going by the averments in the writ petition election to the new managing committee of the Society in question is scheduled to be held on 14.02.2021. In connection with the previous election to the managing committee of the Society the Co operative Arbitration Court Kozhikode by order dated 10.01.2014 found certain irregularities in the conduct of election. The petitioner submitted Ext.P1 representation dated W.P.(C) No.3025 OF 2021(C 30.01.2021 before the 1st respondent Returning officer the 2nd respondent Superintendent of Police Kannur and also the 3rd respondent Circle Inspector of Police Mattannur Kannur and thereafter moved this writ petition seeking the aforesaid reliefs. On 05.02.2021 when this writ petition came up for admission the learned Government Pleader was directed to get On 11.02.2021 the learned Standing Counsel for State Co operative Election Commission took notice on admission for the 1st respondent Returning Officer. The learned Government Pleader took notice on admission for respondents 2 and 3 and urgent notice on admission by e mail was ordered to 4th respondent returnable by 12.02.2021. The learned counsel for the petitioner was directed to furnish the e mail ID and also a scanned copy of this writ petition to the Registry Heard the learned Senior Counsel for the petitioner the learned Standing Counsel for the State Co operative Election Commission for the 1st respondent Returning Officer the learned Government Pleader for respondents 2 and 3 and also Sri. Adv. P L. Sivaraman the learned counsel for the 4th respondent. The Kerala Police Act 2011 is enacted to consolidate W.P.(C) No.3025 OF 2021(C and amend the law relating to the establishment regulation powers and duties of the Police Force in the State of Kerala and for matters connected therewith and incidental thereto. Chapter II of the Act deals with duties and functions of Police. Section 3 of the Act deals with general duties of Police. As per Section 3 the Police as a service functioning category among the people as part of the administrative system shall subject to the Constitution of India and the laws enacted thereunder strive in accordance with the law to ensure that all persons enjoy the freedoms and rights available under the law by ensuring peace and order integrity of the nation security of the State and protection of human rights Section 4 of the Act deals with functions of Police. As per Section 4 the Police Officers shall subject to the provisions of the Act perform the functions enumerated in clausestoof Section 4. As per clause the Police Officers shall enforce the law impartially and as per clausethe Police Officers shall protect the life liberty property human rights and dignity of all persons in accordance with the law. Lord Denning in The Due Process of law has described the role of the Police thus In safeguarding our freedoms the police play vital role. Society for its defence needs a well led well W.P.(C) No.3025 OF 2021(C trained and well disciplined force or police whom it can trust and enough of them to be able to prevent crime before it happens or if it does happen to detect it and bring the accused to justice. The police of course must act properly. They must obey the rules of right conduct. They must not extort confessions by threats or promises. They must not search a man s house without authority. They must not use more force than the occasion warrants In Manohar Lal Sharma v. Principal Secretary 2014) 2 SCC 532] the Apex Court held that one of the responsibilities of the police is protection of life liberty and property of citizens. The investigation of offences is one of the important duties the police has to perform. The aim of investigation is ultimately to search for truth and bring the offender to the book. The Apex Court reiterated the said principle in Ankush Maruti Shinde v. State of Maharashtra15 SCC 470]. The learned Standing Counsel for the State Co operative Election Commission would submit that the 1st respondent Returning Officer shall take necessary steps to ensure free and fair election to the managing committee of the Society in question. Videograph of the process of the election can be arranged at the request of the petitioner on condition that the W.P.(C) No.3025 OF 2021(C entire expense has to be met by the petitioner herself 10. The learned Government Pleader on instructions would submit that the 3rd respondent Circle Inspector of Police shall take necessary steps for the smooth conduct of the election taking note of the directions contained in Circular No.28 2013 of the State Police Chief dated 20.11.2013 In such circumstances this writ petition is disposed of by directing respondents 2 and 3 to ensure smooth conduct of election to the managing committee of Pattanur Village Vanitha Co operative Society Ltd. which is scheduled to be held on 14.02.2021 strictly in accordance with the directions contained in the Circular dated 20.11.2013 issued by the State Police Chief. The 1st respondent Returning Officer shall ensure that there is no bogus voting or impersonation of voters by having the identity of the voters verified with reference to the relevant records maintained in the Society the identity card issued in Form 6A or and any one of the document specified in the Explanation to Rule 35A(6)(n)(ix) of the Kerala Co operative Societies Rules and also Form 6B register maintained in the Society If the petitioner makes a written request before the 1st respondent Returning Officer to videograph the process of election W.P.(C) No.3025 OF 2021(C at her own expenses the said request shall be favourably considered by the said respondent. Such videography shall be permitted without causing any manner of disturbance to the voters and officials or in any manner interfering with the balloting done in the polling booths ANIL K. NARENDRAN JUDGE MIN W.P.(C) No.3025 OF 2021(C PETITIONER S S EXHIBITS TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED

The order dismissing the complaint for default or non-prosecution does not touch upon the factual or legal merits of the complaint: The High Court of Delhi

In pre- summoning stage an order dismissing a complaint for non- prosecution or in default does not touch upon the factual or legal merits of the complaint and restoration of such petition, even without notice to the other side, does not cause any prejudice to the opposite side. The aforesaid has been established in the case of Hindustan Domestic Oil & Gas Company (Bombay) Limited & Ors. Vs. State & Anr. and has laid the premise for the Delhi High Court to be followed in the instant case of Manpreet Kaur & Anr. v. Vinod Bansal [CRL.M.C. 669/2021 & CRL.M.A. 3272/2021 (Stay)] which was decided by a single judge bench comprising Justice Subramonium Prasad on 14th June 2021. The facts of the case are as follows. The respondent herein filed a complaint against the dishonour of a cheque bearing No.017595 dated 01.12.2016 drawn on Oriental Bank of Commerce for Rs.3,50,000/-, given by the petitioners herein as refund of security amount. The said cheque was returned with endorsement “Payment stopped by drawer” vide return memo dated 10.01.2017. A legal notice dated 12.01.2017 was issued by the respondent and on failure of payment of the said amount, a complaint was filed by the respondent herein against the petitioners herein before the learned Trial Court on 28.02.2017. The complaint was listed hearing on 18th April 2017 but die to non-appearance of the complainant the complaint kept on being adjourned to further dates and was finally dismissed on 16th May 2018. The respondent herein then filed a revision petition under Section 397 of CrPC and a plea for restoration of his complaint. The reasoning he provided for non-appearance was that due to his involvement in some cases regarding some property and financial transactions he was absconding fearing arrest. The said revision petition was accompanied by an application for condonation of delay. The learned Principal District & Sessions Judge held that the complaint was dismissed for non-appearance of the complainant at the pre-summoning stage and that no prejudice would be caused to the petitioners herein if the complaint is restored back and hence the complaint was restored in exchange of a payment of Rs. 5000 to be made to DLSA. The present petition under Section 482 Cr.P.C was directed against the order passed by the Principal District & Sessions Judge. It was contended by the counsel for the petitioner that there was a delay of more than 575 days in filing Criminal Revision. He stated that there is no reason given by the respondent herein as to why he did not appear for the proceedings on 18.04.2017, 07.07.2017, 11.01.2018 and 16.05.2018.He therefore contends that out of 575 days delay there is no explanation forthcoming from the respondent herein for a delay of 485 days. The court conducted an in depth perusal of the facts, the circumstances, the arguments presented and the Negotiable Instruments Act to arrive on a particular decision. The court once again relied on the aforementioned judgement in the case of Hindustan Domestic Oil & Gas Company (Bombay) Limited & Ors. Vs. State & Anr. And was of the opinion that “The complaint is maintainable in law. The petitioners herein had yet not been summoned and as held by the Division Bench, no prejudice will be caused to the petitioners herein if the complaint is restored. The complaint is yet to be heard on merits. Normally no complainant would benefit by permitting his complaint to be dismissed in default. The order of the learned Principal District & Sessions Judge cannot be said to be so perverse that this Court, while exercising its jurisdiction under Section 482 Cr.P.C, should substitute its own conclusion to the one arrived at by the learned Principal District & Sessions Judge. ”

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 14th JUNE 2021 CRL.M.C. 669 2021 & CRL.M.A. 3272 2021MANPREET KAUR & ANR. ..... Petitioners Through Mr. Ritesh Khatri Advocate VINOD BANSAL ..... Respondent Through None HON BLE MR. JUSTICE SUBRAMONIUM PRASAD SUBRAMONIUM PRASAD J. The present petition under Section 482 Cr.P.C is directed against the order dated 23.11.2020 passed by the Principal District & Sessions Judge North) Rohini Courts Delhi in Criminal Revision No. 79 2020. The facts in brief leading to the instant revision petition are as under: a) The respondent herein filed a complaint against the dishonour of a cheque bearing No.017595 dated 01.12.2016 drawn on Oriental Bank of Commerce for Rs.3 50 000 given by the petitioners herein as refund of security amount. The said cheque was returned with endorsement "Payment stopped by drawer" vide return memo dated 10.01.2017. A legal notice dated 12.01.2017 was issued by the respondent and on failure of payment of the said amount a complaint was filed by the respondent herein against the petitioners herein before the learned Trial Court on 28.02.2017. b) The material on record shows that the complaint was listed for CRL.M.C. 669 2021 hearing on 18.04.2017 before the learned Trial Court but there was no appearance on behalf of the complainant respondent herein and the matter was adjourned to 07.07.2017. On 07.07.2017 again due to non appearance of the complainant respondent herein the matter was adjourned for 11.01.2018. On 11.01.2018 lawyers were abstaining from work and there was no appearance on behalf of the complainant respondent herein and the matter was adjourned to 16.05.2018. On 16.05.2018 the complaint was dismissed for non appearance of the complainant respondent herein. c) The respondent herein filed a revision petition on 18.09.2020 being Criminal Revision No.79 2020 under Section 397 Cr.P.C for setting aside the order dated 16.05.2018 and for restoration of the complaint. The said revision petition was accompanied by an for condonation of delay. A perusal of abovementioned revision petition shows that the reason given by the complainant respondent herein for non appearance was that due to his involvement in some cases regarding some property and financial transactions he was absconding fearing arrest. It is stated that the respondent herein was arrested on 11.02.2019 and he remained in judicial custody till 15.05.2020. It is stated that when he was released from custody on 15.05.2020 there was lockdown due to the outbreak of COVID 19 pandemic. It is stated that the respondent made enquiries regarding the proceedings in his complaint and when he came to know of the dismissal of the complaint for non appearance he filed the abovementioned revision petition. It is further stated that non appearance of the complainant respondent herein CRL.M.C. 669 2021 complaint case was neither deliberate nor intentional. d) The learned Principal District & Sessions Judge vide order dated 23.11.2020 allowed the revision petition on payment of cost of Rs.5 000 which was to be paid to the Delhi Legal Service Authority. The revision petition was allowed subject to the following “a) That the revisionist will be allowed to conclude pre summoning evidence on one date given by Ld. Trial Court and the revisionist will not seek unnecessary adjournments but subject to production of receipt of the cost imposed herein above before Ld. Trial Court. b) That the revisionist will ensure that he will appear regularly before the Ld. MIV either in person or through his counsel.” e) The learned Principal District & Sessions Judge held that the complaint was dismissed for non appearance of the complainant at the pre summoning stage and that no prejudice would be caused to the petitioners herein if the complaint is restored back. The learned Principal District & Sessions Judge placed reliance on a Division Bench judgment of this Court in CRL.M.C. 1737 2011 titled Hindustan Domestic Oil & Gas CompanyLimited & Ors. Vs. State & Anr. wherein the Division Bench held that in pre summoning stage an order dismissing a complaint for non prosecution or in default does not touch upon the factual or legal merits of the complaint and restoration of such petition even without notice to the other side does not cause any prejudice to the opposite side. f) Against the order passed by the learned Principal District & CRL.M.C. 669 2021 Sessions Judge in Criminal Revision No.79 2020 the petitioners have Heard Mr. Ritesh Khatri learned counsel for the petitioner and filed the instant petition. perused the material on record. 4. Mr. Ritesh Khatri learned counsel for the petitioners states that there was a delay of more than 575 days in filing Criminal Revision No.79 2020. He states that admittedly the respondent herein was arrested on 11.02.2019 and was in custody till 15.05.2020 but the complaint case was dismissed for non prosecution before the respondent herein was arrested on 11.02.2019. He states that there is no reason given by the respondent herein as to why he did not appear for the proceedings on 18.04.2017 07.07.2017 11.01.2018 and 16.05.2018. He states that the complaint was dismissed on 16.05.2018 and the respondent herein was arrested on 11.02.2019 but there is no reason given by the respondent herein as to why the petition under Section 397 Cr.P.C was not filed between 16.05.2018 and 11.02.2019. He further states the respondent herein was released from judicial custody on 15.05.2020 but there is no reason forthcoming as to why the petition under Section 397 Cr.P.C was filed only on 18.09.2020. He therefore contends that out of 575 days‟ delay there is no explanation forthcoming from the respondent herein for a delay of 485 days. The impugned order has in great detail recorded the facts of the case. The impugned order relies on the Division Bench judgment of this Court in CRL.M.C. 1737 2011 titled Hindustan Domestic Oil & Gas Company Bombay) Limited & Ors. Vs. State & Anr. The portion of the order of the Division Bench which though has been quoted by the learned Principal District & Sessions Judge is being quoted again as it is binding on this CRL.M.C. 669 2021 Court. The said Order reads as under: The decision of Delhi High Court in J.K. International [(2002) DLT 795] is clearly distinguishable. In the said case the complaint was dismissed in default and for non prosecution as the complainant was not present and the process fee had not been paid. In said circumstances it was held that Section 401 would not be applicable and no notice was required to be issued. An order dismissing the complaint for non prosecution or in default which is made the subject matter of the revision cannot be equated with revision petitions" that are filed on substantive grounds or touch on the merits. Courts have recognized difference between orders of this nature which are procedural and substantive orders SCC 420 which draws distinction between procedural and substantive review. Power of procedural review need not be specifically conferred but power of substantive review has to be conferred by the statute before it can be exercised by a judicial forum court. Power of procedural review is inherent and therefore does not require any statutory provision or conferment. A reading of Section 401(2) illuminates that power of revision should not be exercised without notice when an order prejudicial to the accused or other person is being passed. The order dismissing the complaint for default or non prosecution does not touch upon the factual or legal merits of the complaint. The said order is a reflection on or about the conduct of the complainant in the proceedings before the court and the opinion formed by the court about the said conduct. Such orders if they do not reflect and take into consideration the merits of the case or the complaint will not require notice to the opposite side when examined in a revision petition. Such orders are not prejudicial to the other side as they do not reflect and take into consideration merits and demerits of the allegations. When a revision petition is filed against an CRL.M.C. 669 2021 order dismissing a complaint for non prosecution or in default and the same is allowed it is not an order that causes prejudice to the opposite side if there is no application of mind or reflection on merits whatsoever. The distinction and aspect has to be kept in mind." The petitioners herein have given a cheque to the respondent and that cheque has been dishonoured. Section 139 of the Negotiable Instruments Actcasts a presumption in favour of the holder that it shall be presumed unless the contrary is proved that the holder of a cheque received the cheque for the discharge in whole or in part of any debt or other liability. Section 139 of the N.I. Act reads as under: “ The Negotiable Instruments Act 1881 139. Presumption in favour of holder.—It shall be presumed unless the contrary is proved that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge in whole or in part of any debt or other liability.” The purpose of introducing Section 138 of the N.I. Act was to bring sanctity in commercial transactions. The negotiable instruments like cheques started losing their creditability in not being honoured on presentment. The legislature found that an action in civil court for collection of the negotiable proceeds like a cheque was defeating the very purpose of recognizing the negotiable instruments as speedy vehicle of commerce. The objects and reasons for inserting Chapter XVII in the Negotiable Instruments Act was to enhance the acceptability of cheques in settlement of liabilities by making a drawer liable for penalties in case of bouncing of cheques due to insufficiency of funds in the accounts or for the reasons that it exceeds the CRL.M.C. 669 2021 arrangements made by the drawer with adequate safeguards to prevent the harassment of honest drawers. It is now well settled that even if the cheque gets dishonoured with endorsement “Payment stopped by drawer” and there were insufficient funds on the date when the cheque was presented it amounts to an offence under Section 138 of the N.I. Act. 8. When no prejudice has been caused to the petitioners herein by restoring the complaint to its original number it does not lie in the mouth of the petitioners to raise objections pleadings that there was a delay on behalf of the complainant in filing a petition under Section 397 Cr.P.C for restoration of complaint which has been dismissed on non appearance of the complainant at a pre evidence stage. The present petition is completely bereft of bonafides and merits. It is apparent that the petitioners do not want to contest the case on merits. It was open to the petitioners to state and demonstrate by providing the bank account details that there were sufficient funds in the account when the cheque was presented to the complainant and no offence under Section 138 of the N.I. Act was made out. Obviously this is not the case and the petitioners are trying to get the complaint thrown out on technicalities. The complaint is maintainable in law. The petitioners herein had yet not been summoned and as held by the Division Bench no prejudice will be caused to the petitioners herein if the complaint is restored. The complaint is yet to be heard on merits. Normally no complainant would benefit by permitting his complaint to be dismissed in default. It is not denied by the counsel for the petitioners that the respondent was arrested on 11.02.2019 and was released only on 15.05.2020. It has been stated very candidly in the revision petition that the respondent was apprehending arrest and was CRL.M.C. 669 2021 absconding. This has been found to be a good reason by the learned Principal District & Sessions Judge to condone the delay of 575 days. When the respondent was released from jail on 15.05.2020 there was a lockdown and the revision petition was filed in September 2020. The order of the learned Principal District & Sessions Judge cannot be said to be so perverse that this Court while exercising its jurisdiction under Section 482 Cr.P.C should substitute its own conclusion to the one arrived at by the learned Principal District & Sessions Judge. Costs have been imposed on the respondent herein and the learned Principal District & Sessions Judge has directed the respondent to conclude the pre summoning on one date given by the learned Trial Court and the respondent herein has been prohibited from taking unnecessary adjournments. In view of the directions passed by the learned Principal District & Sessions Judge this Court is not inclined to interfere with the order. 10. Accordingly the petition is dismissed along with the pending SUBRAMONIUM PRASAD J application. JUNE 14 2021 CRL.M.C. 669 2021

Detention order to be quashed if the detaining authority has also failed to express any such compelling reason in Reply Affidavit. : Srinagar High Court

Detention goes against the fundamental rights guaranteed by the constitution, it is only warranted and justified if it is supported by strong reasons after having followed the procedural requirements. This was held in the judgment passed by a single bench judge Hon’ble Mr. Justice Javed Iqbal Wani, Judge, in the matter Salman Ahmad Dar V. State of Jammu and Kashmirand others (CrlM No. 775/2019), dealt with an issue where the petitioner filed quashment of detention order passed against the detenu, namely,Salman Ahmad Dar,is being sought for by the petitioner as also a writ of mandamus for his release. The detenu is stated to have been arrested in the month of August 2019, after being summoned to Police Station Shopian, and was implicated falsely in case FIR No. 123/2019registered at Police Station Shopian and while being in custody therein the said FIR came to be detained under preventive custody by the respondents in terms of impugned order and lodged at Central Jail, Srinagar. The impugned order is being challenged, inter alia, on the grounds that detenu was already in custody in connection with case FIR No.123/2019 and the detaining authority, despite having the knowledge of the said fact, detained the detenu without spelling out any compelling reason thereof in the grounds of detention, moreso, when there was no possibility of the release of the detenu from the custody on account of offences of the FIR.  It is being further urged in the grounds that the detenu had not been provided copies of the relevant material, like copy of dossier, copy of FIR, Statements under Section 161, 164-A Cr. PC, referred to in the groundsof detention, thus, depriving him to file an effective representation against his detention. The said failure is stated to have infringed the constitutional right of the detenu guaranteed under Article 22 (5) of the Constitution of India. The respondents stated in their reply affidavit filed in opposition to the petition, resist and controvert the contentions raised and grounds urged by the petitioner in the petition and have insisted that the order of detention is preventive and not punitive in nature, while it is being admitted by respondents that detenu was detained pursuant to impugned order. It is being stated that all statutory requirements and constitutional guarantees have had been fulfilled and complied with while detaining the detenu.

HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR WP(Crl) No.405 2019 CrlM No. 775 2019 Salman Ahmad Dar State of Jammu and Kashmirand others Reserved on: 04.08.2021 Pronounced on:05.08.2021. ...PetitionerThrough:Mr. Sajad Geelani Advocate Through:Mr. Asif Maqbool Dy.AG Hon’ble Mr. Justice Javed Iqbal Wani Judge Through the medium of instant petition quashment of detention order bearing No.17 DMS PSA 2019 dated 06.08.2019 passed against the detenu namely Salman Ahmad Dar is being sought for by the petitioner as also a writ of mandamus for his release. It is being stated in the petition that the detenu is a law abiding and peace loving citizen and has never involved in any subversive activity prejudicial to the public order or security of the State. The detenu is stated to have been arrested in the month of August 2019 after being summoned to Police Station Shopian and was implicated falsely in case FIR No. 123 2019registered at Police Station Shopian and while being in custody therein the said FIR came to be detained under preventive custody by the respondents in terms of impugned order and lodged at Central Jail Srinagar. WP(Crl) No.405 2019 The impugned order is being challenged inter alia on the grounds that detenu was already in custody in connection with case FIR No.123 2019 and the detaining authority despite having knowledge of the said fact detained the detenu without spelling out any compelling reason thereof in the grounds of detention moreso when there was no possibility of the release of the detenu from the custody on account of offences of the FIRparticularly offences covered under Chapter IV and VI of the ULP(A) Act. It is being further urged in the grounds that the detenu had not been provided copies of the relevant material like copy of dossier copy of FIR Statements under Section 161 164 A Cr. PC referred to in the groundsof detention thus depriving him to file an effective representation against his detention. The said failure is stated to have infringed the constitutional right of the detenuguaranteed under Article 22of the Constitution of India. On the other hand respondents in their reply affidavit filed in opposition to the petition resist and controvert the contentions raised and grounds urged by the petitioner in the petition and have insisted that the order of detention is preventive and not punitive in nature while it is being admitted by respondents that detenu was detained pursuant to impugned order.It is being stated that all statutory requirements and constitutional guarantees have had been fulfilled and complied with while detaining the detenu. It is being next averred by respondents that impugned order was executed in accordance with the relevant provisions of law and that the detenu was handed over to the Superintendent Central Jail Srinagar lodgment and the contents of detention order warrant and grounds of detention were read over and explained to the detenu in the language which he fully understood and in lieu thereof the detenu subscribed his signatures on the execution WP(Crl) No.405 2019 It is being next stated that the Advisory Board after considering the material placed before it in terms of Section 16 of the Act held that there is sufficient cause for detention of the detenu.On receipt of the opinion of the Advisory Board the Government confirmed order of detention. Respondents in the process are stated to have complied with all statutory constitutional provisions and followed all requisite formalities without violating any of them. Heard learned counsel for the parties perused the record and considered the matter. 9. While dealing with the first contention ground of challenge urged by the petitioner qua non recording of compelling reasons for detaining the detenu when he was already in custody it would be appropriate to refer to the judgement of the Apex court in this regard passed in case titled as Surya Prakash Sharma v. State of U.P. and others reported in 1994SCC 195 wherein at Para 5 following has been noticed and laid down: first came up this Court since “5. The question as to whether and in what circumstances an order for preventive detention can be passed against a person who is already in custody has had been engaging the attention of consideration before a Constitution Bench in Rameshwar Shaw V. District Magistrate Burdwan 4 SCR 92: AIR 1964 SC 334:1Crl LJ 257. To eschew prolixity we refrain from detailing all those cases except that of Dharmendra SuganchandChelawat V. Union of India1 SCC 746: 1990 SCC 249: AIR 1990 SC 1196 wherein a three Judge Bench after considering all the earlier relevant decisions including Rameshwar Shaw answered the question in the following words the detaining authority was aware of the fact that the detenue is already in detention and there were compelling reasons justifying such detention despite the fact that the detenue is already in detention. The expression ‘compelling reasons’ in the context of making an order for detention of a person already in WP(Crl) No.405 2019 custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that the detenue is likely to be released from custody in the near future andtaking into account the nature of the antecedent activities of the detenue it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.” 10. Perusal of the grounds of detention order of detention wouldmanifestly reveal that the detaining authority has not drawn anysatisfactionas per the mandate laid down by the Apex Court in the case of Surya Parkash Sharma(supra) while passing the impugned detention order against the detenu so much so the detaining authorityhas also failed to express any such compelling reason even in Reply Affidavit. The impugned order thus in law does not sustain on this count alone. 11. Another contention exhorted by learned counsel for petitioner concerning non supply of material has taken this Court to have a glimpse of detention record made available by learned counsel for respondents. Plain reading thereof unveil amongst others execution report as regards execution of impugned order of detention. It divulges that only nine leaves have been given to detenu. 12. Perusal of impugned detention order reveals that on the basis of dossier placed before detaining authority by Senior Superintendent of Police Shopian vide no.CS D 1 2019 3140 dated 21.06.2019 detaining authority was satisfied that with a view to prevent detenu from acting in any manner prejudicial to the security of the State Country it was necessary to detain detenu under necessary provisions of law. So it is on the basis of dossier and other connected material documents that impugned detention order has been passed by detaining authority. Grounds of detention when looked into gives reference of two FIRs to have been registered against detenu. Involvement of detenu in aforesaid cases appears to have weighed with detaining authority while making detention order. The detention WP(Crl) No.405 2019 record as noted above does not indicate that copies of statements recorded under Section 161 Cr.P.C. in above FIRs and other material collected in connection with investigation of aforesaid cases was ever supplied to detenu even copy dossier has not been furnished to detenu on the edifice thereof impugned detention order has been issued. Aforesaid material thus assumes importance in the facts and circumstances of the case. It needs no emphasis that detenu cannot be expected to make a meaningful exercise of his Constitutional and Statutory rights guaranteed under Article 22(5) of the Constitution of India and Section 13 of the J&K Public Safety Act 1978 unless and until the material on which detention order is based is supplied to him. It is only after detenu has all the said material available that he can make an effort to convince detaining authority and thereafter the Government that their apprehensions vis à vis his activities are baseless and misplaced. If detenu is not supplied the material on which detention order is based he will not be in a position to make an effective representation against his detention order. Failure on part of detaining authority to supply material relied at the time of making detention order to detenu renders detention order illegal and unsustainable. These views are fortified given the law laid down by the Apex Court in ThahiraHaris Etc. Etc. v. Government of Karnataka AIR 2009 SC 2184 Union of India v. Ranu Bhandari 2008 Cr. L. J. 4567 DhannajoyDass v. District Magistrate AIR 1982 SC 1315 Sofia Gulam MohdBham v. State of Maharashtra and others AIR 1999 SC 3051 and Syed AasiyaIndrabi v. State of J&K & ors 2009 S.L.J 219.My views are also cemented by the judgement dated 18.05.2021 delivered in WP(Crl) No. 107 2020 titled Mohammad Rafiq Mir v. UT of J&K and another. 13. The Supreme Court in Abdul Latief Abdul Wahab Sheikh v. B.K. Jha 1987SCC 22 has made it clear that it is only the procedural requirements which are the only safeguards available to detenu that is to be followed and complied with as the Court is not expected to go behind the subjective satisfaction of detaining authority. In the present WP(Crl) No.405 2019 case procedural requirements as discussed above have not been followed and complied with by respondents in letter and spirit and as a consequence thereof petition on hand requires to be allowed. It is germane to mention here that the judgement referred to and relied upon by the counsel for the respondents titled as‘Shiv Ratan Makim Vs. Union of India and Others reported in 1986 SC 610’ is not applicable to the facts and circumstances of the case being misplaced and misdirected and does not lend any support thereof to the case of the respondents. 15. Viewed thus in the context what has been observed analyzed and considered in the preceding paragraphs instant petition is allowed and consequent to which the impugned order of detention bearing No.17 DMS PSA 2019 dated 06.08.2019 is quashed with the direction to the respondents to release the detenu forthwith from preventive custody unless required in any other case. 16. Disposed of along with all connected CrlM(s). 17. No orders as to costs. 18. The detention record produced by the respondents is returned to learned counsel for the respondents in the open Court. Javed Iqbal Wani) Whether approved for reporting Yes No. ISAQ HAMEED BHAT2021.08.06 16:21I attest to the accuracy andintegrity of this document

Compassionate Grant policy applied retrospectively: Supreme Court of India

Tribal Welfare Department was entitled to the compassionate appointment as per the existing policy on the date of his demise unless the subsequent policy is made applicable retrospectively held by Justice Sanjay Kishan Kaul in the case of State of Madhya Pradesh & Ors. Vs Amit Shrivas [Civil Appeal No. 8564 of 2015]. Supreme Court had allowed an appeal filed by the State of Madhya Pradesh against the direction of the High Court which had directed the Appellants to give compassionate appointment to the son of the deceased who is the Respondent in the present matter. The deceased was employed as a driver with regular pay associated with the Tribal Welfare Department of the appellant. On the demise of the deceased who was the sole breadwinner of the family consisting of a son and three sisters, the son had filed an application seeking the benefit of compassionate appointment under the Madhya Pradesh Civil Pension Rules, 1976. The application was rejected on placing reliance on the policy issued by the General Administration Department Ministry, Madhya Pradesh Government. This policy pertains to when a Government servant dies while in service, and if such an employee is earning a salary from the work-charge/contingency fund at the time of his/her demise, then there was no provision for the grant of such appointment. The policy provided for the grant of Rs 1 Lakh to the nominee of the employee. The amount was dispersed from the Appellant to the wife of the deceased. Aggrieved by this decision the son had filed an appeal in the High Court which further upheld the decision of the Appellant department. Further, an appeal was filed in the division bench of the High Court which ordered the Appellant to grant a job having a similar description of the deceased. Aggrieved by this decision the State sought an appeal in the Supreme Court. The Appellant opposed the decision of the High Court on the basis that the father of the respondent had been appointed on a contingency basis as per the requirement of work as a driver. Such appointment was with the condition that his service may be terminated with one month’s notice and that his salary would be released from the contingency fund. The Appellant heavily relied upon that, “compassionate appointment is not an inherent right but a prerogative of the State, which can only be granted as per the concerned policy formulated and enforced at the relevant time.” The Supreme Court observed that there is no dispute in regard that the deceased had been in service for 23 years. The main conflict concerned that whether the late father of the respondent who admittedly was employed as a work-charged/contingency employee in the Tribal Welfare Department was entitled to the compassionate appointment as per the existing policy on the date of his demise. The Court observed from the judgement of Ram Naresh Rawat v. Ashwini Ray & Ors, [(2017) 3 SCC 436] that “if some persons are given the benefit wrongly, that cannot form the basis of claiming the same relief. It is trite that right to equality under Article 14 is not in the negative terms.” The Court noted that no relief regarding the employment can be given to the respondent however keeping in view the updated policy, the compassionate grant has been increased from Rs 1 Lakh to 2 Lakh for the pending cases. The Court held that the appeal has been allowed and with the power vested under Article 142 of the Constitution, the Court can increase the amount of grant to Rs 2 Lakh. The Appellants were directed to pay the remaining grant amount within two months. Click here to read the judgement

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 8564 OF 2015 STATE OF MADHYA PRADESH & ORS JUDGMENT SANJAY KISHAN KAUL J The respondent raises a claim of entitlement to compassionate appointment on account of the demise of his father late Shri Ranglal Shrivas who was working as a Driver in the Tribal Welfare Department Bhind Madhya Pradesh since 6.6.1984 till he passed away on 11.12.2009 i.e. over a period of almost 23 years The claim of the respondent was predicated on the nature of employment of his late father who was initially appointed as a work charged employee. On 12.3.1987 he was made permanent and was paid salary at a regular pay scale. The benefits of revision of pay and krammonati were also extended to him from time to time On the demise of late Shri Ranglal Shrivas he left behind an ailing wife a sonand three daughters and is stated to have been the sole breadwinner for his family. The family thus faced undue economic hardship. A Pension Payment Orderunder the Madhya Pradesh Civil Pension Rules 1976 was issued in favour of the family on account of his having worked from 12.3.1987 to 11.12.2009 on the basis of his last pay scale and grade pay. In view of the economic hardship the respondent filed an application seeking the benefit of The request of compassionate appointment was however rejected by the third appellant vide order dated 19.8.2010. Reliance was placed on the Policy in force for compassionate appointment dated 18.8.2008 issued by the General Administration Department Ministry Madhya Pradesh Government. This policy pertains to when a Government servant dies while in service and if such an employee is earning a salary from the work charge contingency fund at the time of his her demise then there was no provision for the grant of such appointment. In this behalf reliance was placed on Clause 12.1 of the Policy which provided for a compassionate grant of Rs.1 00 000 to the nominated dependent of such an employee and in this case the same was sanctioned to the wife of the deceased. It would be appropriate to reproduce the relevant clause as “12. Provisions for work charge contingency and daily wager 12.1 When employees receiving salary from work charge contingency fund and daily wager employee die they would not be eligible for the compassionate appointment however Rs.1 lakh in one installment in the name of compassionate grant shall be given to the dependent member of the family nominated by them. The amount of gratuity shall not be included in it. The payment of this amount shall be given from the salary head under the head of work charge contingency of the concerned The respondent being aggrieved by the aforesaid order dated 19.8.2010 filed WP No. 3542 2012 before the High Court of Madhya Pradesh Gwalior Bench. The Madhya Pradesh Pension Rules 1979more specifically Rule 2(c) was relied upon This Rule stipulates that any contingency paid employee or work charged employee who has completed 15 years or more of service on or after 1.1.1974 as a permanent employee. It would be relevant to reproduce the definition of work charged employee and permanent employee as set out in Rules 2(b) & 2(c) of the Pension Rules as under “2. Definitions. — In these rules unless the context otherwise requires b) “Work Charged employee” means a person employed upon the actual execution as distinct from general supervision of a specified work or upon subordinate supervision of the departmental labour store running and repairs of electrical equipment and machinery in connection with such work excluding the daily paid labour and muster roll employee employed on the work c) “Permanent employee” means a contingency paid employee or a work charged employee who has completed fifteen years of service or more on or after the 1st January 1974.” It is not in dispute that the father of the respondent had completed more than 15 years of service at the time of his demise and was thus a permanent employee. Thus the respondent claimed entitlement to compassionate appointment being eligible for a Class IV post as per Policy of 18.8.2008 and sought the quashing of the impugned decision The writ petition was opposed by the appellants on the ground that the father of the respondent had been appointed on contingency basis as per requirement of work as a driver. Such appointment was with the condition that his service may be terminated with one month’s notice and that his salary would be released from the contingency fund. In this behalf reliance was placed on his appointment order dated 5.6.1987 but strangely neither of the parties placed any appointment letter order on record. The factum of the wife of the deceased having already received Rs. 1 00 000 as relief in terms of the Policy was emphasised The writ petition was allowed by the learned Single Judge of the High Court vide order dated 19.7.2013 relying upon an earlier judgment dealing with the issue of an employee who had been serving for more than 15 years and who was thus found to qualify for the status of a permanent employee. This relied upon order was sustained in a writ appeal and an SLP against this was also dismissed.1 On the issue of the applicability of Clause 12.1 of the Policy reproduced hereinabove it was opined that the same would apply to such employees who had not attained permanency i.e. once an employee becomes permanent under the Pension Rules Clause 12.1 was held as inapplicable for 1 Shahjad Khan v. State of Madhya Pradesh & Ors.No. 5859 2014 compassionate appointment The fact that the appellants had even granted krammonati to the late father of the respondent was also taken as the supportive reasoning The appellants were directed to consider the case of the respondent for compassionate appointment in terms thereof. Aggrieved by the same the appellants preferred Writ Appeal No. 583 2013 inter alia on the ground that the respondent was not entitled to compassionate appointment and he was not a regular Government employee within the meaning of Rule 2(b of the Madhya Pradesh Civil Service Conduct Rules 1965 which reads “2. Definitions. In these rules unless the context otherwise requires b) "Government servant" means any person appointed to any civil service or post in connection with the affairs of the State of Explanation. A Government servant whose services are placed at the disposal of a company corporation organisation or local authority by the Government shall for the purpose of these rules be deemed to be a Government servant serving under the Government notwithstanding that his salary is drawn from sources other than from the Consolidated Fund of the State.” The emphasis of the appellants was also on the principle that a compassionate appointment is not an inherent right but a prerogative of the State which can only be granted as per the concerned policy formulated and enforced at the relevant time. Since Clause 12.1 of the Policy did not provide for compassionate appointment to work charge contingency fund and daily wager employees the monetary benefit as admissible therein had already been granted. The difference between a regular and a permanent employee was emphasised and additionally it was pleaded that even the Rs. 1 00 000 paid had not been directed to be refunded The writ appeal was dismissed by the Division Bench of the High Court vide impugned order dated 2.1.2014 primarily predicated on the reasoning that the late father of the respondent was a permanent employee as per the Pension Rules. Insofar as grant of amount of Rs 1 00 000 was concerned it was directed to be returned to the appellants in the event of the respondent gaining compassionate appointment It appears that the appellants were in the process of filing an SLP and thus on 12.2.2014 appellant No. 3 accepted the respondent’s claim for compassionate appointment but subject to the conditions that the amount of Rs. 1 00 000 should be returned that such appointment would be dependent on the availability of a vacancy post that the posting offered be compulsorily accepted and lastly if an SLP appeal is filed then the outcome of the same will be binding. The SLP was filed on 12.7.2014 and after condonation of delay notice was issued and the operation of the impugned judgment was stayed vide order dated 6.2.2015. Leave was granted on 12.10.2015 and the interim order was made absolute. Thus till date the respondent has not got the benefit of 12. We have heard the learned counsels for the parties In our opinion the only issue which has to be examined is whether the late father of the respondent who admittedly was employed as a work charged contingency employee in the Tribal Welfare Department was entitled to the compassionate appointment as per the existing policy on the date of his demise It is trite to say that there cannot be any inherent right to compassionate appointment but rather it is a right based on certain criteria especially to provide succor to a needy family. This has to be in terms of the applicable policy as existing on the date of demise unless a subsequent policy is made applicable retrospectively.2 Insofar as providing succor is concerned unfortunately since the demise of the late father of the respondent 11 years have passed and really speaking the aspect of providing succor to the family immediately does not survive. We have still examined the matter in the conspectus of the applicable policy. It is not in question that the Policy prevailing was one dated 18.8.2008. Clause 12.1 clearly proscribes work charge contingency fund and daily wager employees from compassionate appointment. The gravamen of the submission of the respondent is based on the classification of his late father as a permanent employee on account of having worked for more than 15 years and the consequent regularisation of his service In our view the aforesaid plea misses the point of distinction between a work charged employee a permanent employee and a regular employee. The late father of the respondent was undoubtedly a work charged employee and it is nobody’s case that he has not been paid out of work charged contingency fund. He attained the status of a permanent employee on account of having completed 15 years of service which 2 State of Gujarat & Ors. v. Arvindkumar T. Tiwari & Anr. 9 SCC 545 entitled him to certain benefits including pension and krammonati. This will however not ipso facto give him the status of a regular employee In the aforesaid behalf an analogy can be drawn with the Madhya Pradesh Industrial Employment Rules 1963 under which employees can be classified as permanent permanent seasonal probationers badlis apprentices temporary and fixed term employment employees. A work charged contingency employee can also be classified under any of the aforementioned categories and under the said Standing Orders the classification as permanent can be granted even on the completion of 6 months service in a clear vacancy 18. We are not required to labour much on the aforesaid issue and really speaking this issue is no more res integra in view of the judgment of this Court in Ram Naresh Rawat v. Ashwini Ray & Ors. 3 which opined that a ‘permanent’ classification does not amount to regularisation. The case dealt with the aforesaid Standing Orders and it has been observed in paras 24 26 & 27 as under “24. It is thus somewhat puzzling as to whether the employee on getting the designation of “permanent employee” can be treated as “regular” employee. This answer does not flow from the reading of the Standing Orders Act and Rules. In common parlance normally 33 SCC 436 a person who is known as “permanent employee” would be treated as a regular employee but it does not appear to be exactly that kind of situation in the instant case when we find that merely after completing six months service an employee gets right to be treated as “permanent employee”. Moreover this Court has as would be noticed now drawn a distinction between “permanent employee” and “regular employee” 26. From the aforesaid it follows that though a “permanent employee” has right to receive pay in the graded pay scale at the same time he would be getting only minimum of the said pay scale with no increments. It is only the regularisation in service which would entail grant of increments etc. in the pay scale 27. In view of the aforesaid we do not find any substance in the contentions raised by the petitioners in these contempt petitions We are conscious of the fact that in some cases on earlier occasions the State Government while fixing the pay scale granted increments as well. However if some persons are given the benefit wrongly that cannot form the basis of claiming the same relief. It is trite that right to equality under Article 14 is not in negative terms 6 SCC 766]” The conclusion to be drawn from the aforesaid is that attaining the status of permanent employee would entitle one only to a minimum of the pay scale without any increments. It is this aspect which was sought to be emphasised by learned counsel for the respondent to contend that this would not apply because in the present case krammonati and increments were given. However we may note that in the order dated 7.2.2002 granting the benefit of monetary krammonati to employees including the respondent’s father it was specified that the same would not affect the posts of such employees. The moot point thus is that having been granted increments could a person be said to have reached the status of a regular employee In order to answer this question we may note that while considering this aspect in the aforesaid judgment it was specifically opined that even “if some persons are given the benefit wrongly that cannot form the basis of claiming the same relief. It is trite that right to equality under Article 14 is not in the negative terms.” We say so not with the objective of giving a licence to the appellants to withdraw any of the benefits which are already granted and we make this unequivocally clear. However we cannot at the same time make a conclusion that the status acquired is that of a regular employee upon having achieved the status of a permanent employee in service Thus the classification of the late father of the respondent as a permanent employee and this distinction between a ‘permanent’ status and a ‘regular’ status appears to have been lost sight of in the impugned 22. We may also notice the reliance placed by learned counsel for the respondent on certain other cases where orders similar in nature were passed by the High Court and an SLP against one of these orders was dismissed but then we have already observed that this will not give a right for perpetuating something which is not permissible in law 23. We had the occasion of examining the issue of compassion appointment in a recent judgment in Indian Bank & Ors. v. Promila Anr.4 We may usefully refer to paras 3 4 & 5 as under “3. There has been some confusion as to the scheme applicable and thus this Court directed the scheme prevalent on the date of the death to be placed before this Court for consideration as the High Court appears to have dealt with a scheme which was of a subsequent date. The need for this also arose on account of the legal position being settled by the judgment of this Court in Canara Bank & Anr. v. M. Mahesh Kumar 7 SCC 412 qua what would be the cut off date for application of such scheme 4. It is trite to emphasise based on numerous judicial pronouncements of this Court that compassionate appointment is not an alternative to the normal course of appointment and that 42 SCC 729 there is no inherent right to seek compassionate appointment. The objective is only to provide solace and succour to the family in difficult times and thus the relevancy is at that stage of time when the employee passes away 5. An aspect examined by this judgment is as to whether a claim for compassionate employment under a scheme of a particular year could be decided based on a subsequent scheme that came into force much after the claim. The answer to this has been emphatically in the negative. It has also been observed that the grant of family pension and payment of terminal benefits cannot be treated as a substitute for providing employment assistance. The crucial aspect is to turn to the scheme itself to consider as to what are the provisions made in the scheme for such compassionate 24. We are thus unable to give any relief to the respondent much as we would have liked under the circumstances but are constrained by the legal position. The family of the late employee has already been paid the entitlement as per applicable policy 25. We may however notice a subsequent development arising from certain additional documents placed on record pertaining to the amendment to the policy of 18.8.2008 vide Circular dated 29.9.2014. In terms of this Circular the compassionate grant amount was increased from Rs. 1 00 000 to Rs. 2 00 000 . Another Circular was issued on 31.8.2016 through which a decision was taken that the dependents of deceased employees drawing a salary from the work charged contingency fund would be entitled to compassionate appointment but it was clarified vide Circular dated 21.3.2017 that pending cases before the date of the 31.8.2016 Circular would be decided only in terms of the amended Policy dated 29.9.2014. That being the position this last Circular also does not come to the aid of the respondent as it would amount to making the policy retrospectively applicable while the Circular says to the contrary 26. We however are of the view that we can provide some succor to the respondent in view of the Circular dated 21.3.2017 the relevant portion of which reads as under “2. In this regard it is clarified that the compassionate appointment for the employees of Workcharge and Contingency Fund is in force also w.e.f. 31.08.2016. And the cases pending before this date will be decided only in accordance with the directions issued for compassionate appointment on 29.09.2014 i.e. they will be eligible only for compassionate grant and not the compassionate appointment. The proceedings be ensured accordingly.” The aforesaid Circular records that pending cases will be decided in accordance with the directions issued for compassionate appointment on 29.9.2014. The present case is really not a pending case before the authority but a pending lis before this Court 28. We are thus of the view that it would be appropriate to use our powers under Article 142 of the Constitution of India to do complete justice between the parties by increasing the amount from Rs. 1 00 000 to Rs. 2 00 000 as aforesaid. We in fact adopted a similar approach in Punjab State Power Corporation Limited & Ors. v. Nirval Singh.5 It appears from the documents on record that possibly a sum of Rs 1 00 000 was deposited by the respondent with the State Bank of India in an interest bearing deposit in 2016 and the amount would possibly be lying in the same deposit. This would have been pursuant to the impugned order. We thus direct that this FDR be released to the respondent and that this amount along with interest which would accrue to the benefit of the respondent apart from the additional amount of Rs 1 00 000 we have found as payable to the respondent which should be so paid within a period of twomonths from today failing which it will carry interest @ 12 per cent per annumtill the date 56 SCC 774 The appeal is accordingly allowed leaving the parties to bear their September 29 2020 Sanjay Kishan Kaul

Chhattisgarh High Court dismissed the first bail application in a miscellaneous criminal case of serious nature.

There is the bail application in the case of Chaman Namdev Vs. State of Chhattisgarh [MCRC No. 1609 of 2021] which was decided in the High Court of Chhattisgarh on 6th August 2021 by Hon’ble Shri Justice Goutam Bhaduri. The application was first applied in the above-mentioned case under section 439 of Code of Criminal Procedure for grant of regular bail where the applicant named Chaman Namdev was in connection with Crime No. 994/2020 registered at Police Station, Sarkanda District. This judgment was passed for three applications collectively from which one of the applications is blogged here. The applicants were accused under sections 302, 307, 294, 323, 506 & 34 of IPC. The case in which the applicants were accused was a serious offense of criminal assault and murder done allegedly by the applicants and some of his mates. But the learned counsel of the applicant stated that the applicant has no connection with the crime so caused as he was not present at the time of occurrence. The learned counsel also stated that the medical report of the deceased says that he had been injured by falling from a vehicle. After considering all the facts and shreds of evidence, the Hon’ble judge decided not to grant bail, and the reason for which is stated in the concluding lines of his judgment. The judgment says – “Considering the overall role played by the applicants, it is a 4 matter of evidence during the trial to evaluate the role played by the applicants individually or jointly, therefore, I am not inclined to grant bail to the applicants.’’

HIGH COURT OF CHHATTISGARH BILASPUR MCRC No. 16021 • Chaman NamdevS o Shri Rajesh Namdev Aged About 23 Years R o Chantidih Near Sai Mandir Police Station Sarkanda District Bilaspur Chhattisgarh Applicant • State Of Chhattisgarh Through Station House Officer Police Station Sarkanda District Bilaspur Chhattisgarh MCRC No. 21221 Respondent • Shahrookh Ali @ Sharo Ali S o Shri Sher Khan Aged About 25 Years R o Mela Para Irani Mohalla Chantidih P.S. Sarkanda Tahsil And District Bilaspur • State Of Chhattisgarh Through S.H.O. Sarkanda District Bilaspur Chhattisgarh. District : Bilaspur Chhattisgarh MCRC No. 36221 Iqbal Ali S o Sarwar Ali Aged About 28 Years R o Mela Para Irani Mohalla Chantidih Police Station Sarkanda Tahsil And District Bilaspur Chhattisgarh Applicant Respondent Applicant Respondent • State Of Chhattisgarh Through S H O Sarkanda District Bilaspur For Applicants Shri Dharmesh Shrivastava and Shri Dheerendra Pandey Advocates For Respondent State Shri Rahul Jha G.A Hon ble Shri Justice Goutam Bhaduri Order On Board 1. All the cases are decided by this common order since they are arising out of common incident and common crime number 2. These are first Bail Applications filed under Section 439 of the Code of Criminal Procedure for grant of regular bail to the applicants in connection with Crime No. 994 2020 registered at Police Station Sarkanda District Bilaspur C.G. for the offence punishable under Sections 302 307 294 323 506 & 34 of IPC 3. As per the prosecution case on 26.10.2020 one Chaman Namdev @ Akta Darjiwala went to the residence of Hasnen Ali and they were quarrellings on some issue in the meanwhile Juber Ali who is the deceased tried to intervene at that time Chaman Namdev @ Akta Darjiwala called his brother in law namely Iqbal Ali along. Thereafter Iqbal Ali along with other co accused namely Shahrookh Ali @ Sharo Ali Siya Ali came and Iqbal Ali and Shahrookh Ali @ Sharo Ali assaulted the deceased with belt thereafter Siya Ali stabbed Juber Aliwith knife and eventually he died on 4. Learned counsel for the applicant Chaman Namdev @ Akta Darjiwala submits that he has no connection with the incident and one of his cousin is named as Akta Darjiwala therefore for no fault of the applicant and further he was not even present at the spot he has been arrested and it is further submitted that Jubar Aliwas initially admitted at CIMS and was discharged and shown as absconding and further was admitted in different hospital wherein it was stated that he fell down from the vehicle and sustained the injury therefore Chaman Namdev may be released on bail 5. Learned counsel for Shahrookh Ali and Iqbal Ali submits that injury was given by Siya Ali and the present applicants where not at all involved and it was a sudden fight therefore the applicants do not have any mens rea to commit the crime and for the simple reason that they were present at the crime scene they have been inculpated therefore they may be enlarged on 6. Per contra learned State counsel opposes the prayer for grant of bail and read out the statement of Raziya Begam. He further submits that apart from Raziya Bagam other eye witness were also present at the spot. He further reads out the 161 statement and submits that Chaman Namdev is named and there is no identity difference of Chaman Namdev and Akta Darjiwala and would submit that when the quarrel started at the instance of Chaman Namdev the other applicants Shahrookh Ali @ Shara Ali Iqbal Ali and Ziya Ali inflicted the injury 7. Considering the submission made and considering the 161 the statement and primarily the involvement of the applicants in commission of crime has been stated at this stage during consideration of bail it cannot be stated that all of a sudden the incident was occurred and stab injury was inflicted by Siya Ali. Considering the over all role played by the applicants it is a matter of evidence during the trial to evaluate the role played by the applicants individually or jointly therefore I am not inclined to grant bail to 8. Accordingly the bail applications are dismissed Sd Goutam Bhaduri Judge

Foreign national held for smuggling foreign currency granted permission to visit native place: The High Court of Delhi

Lady aged 54, caught in currency smuggling case allowed by the Delhi High Court to visit her native place keeping in view several factors including age, medical conditions and family requirements, on deposit of a certain amount and promise to return unconditionally after 6 months duration. The aforementioned was the act of courtesy displayed by the Delhi High Court in the case of Chen Hsui Yun v. Directorate of Revenue Intelligence [CRL.REV. P. 137/2021] by the single judge bench comprising Justice Rajnish Bhatnagar on 11th June 2021. The facts of the case are as follows. It was alleged in a secret information received that five passengers of Chinese origin who were travelling to Hong Kong from IGI Airport, New Delhi would be carrying huge amount of huge quantity of foreign currency on their persons or in hand baggage or in their checked-in-baggage, and would attempt to smuggle out the same. It is alleged that the respondent officers reached at T-3 IGI Airport and intercepted the above mentioned 5 passengers at Boarding Gate No. 15. It is alleged that their checked-in-baggage was searched and a total of USD 4,49,600 equivalent to Indian Rs.3,25,51,040 was recovered. It was alleged that the petitioner was found in possession of foreign currency equivalent to Rs.65,00,000/- in her check-in-baggage. This was followed by the petitioner being granted bail by the CMM Patiala House Courts. In another application, petitioner sought release of her passport which was initially granted by the CMM Patiala House by was later revoked by the learned District and Sessions Judge, PHC, New Delhi, and vide order dated 10.7.2020 about which the petitioner remained unaware. It is further averred that the petitioner, thereafter, filed an application seeking permission to go abroad to her native country for a period of six months as the petitioner is a foreign national, and is facing immense financial hardship learned CMM, PHC, in view of the facts and circumstances of the case, allowed the petitioner to visit abroad for a period of six months on certain conditions. The said order of learned CMM was challenged by the Department-respondent before the District and Sessions Judge, Delhi and was set aside.  In the reply, it was contended by the counsel for respondent that there is no infirmity or illegality in the impugned order and that petitioner is a foreigner so she has no interest in India and in case the petitioner is allowed to go abroad she would not return India to face trial. It was further submitted that in any event, if the order of learned CMM is upheld and the petitioner is allowed to travel abroad, the petitioner may be directed to deposit in cash or FDR for an amount at least 50% of the foreign currency in INR recovered from the petitioner. The counsel further denied that the right to travel is inbuilt fundamental right under Article 21 of the Constitution of India. On the other handed it was submitted by the counsel for petitioner that petitioner is a lady aged about 54 years and her husband, who is aged about 64 years, is suffering from various old aged ailments and requires regular check up and care. He submitted that the sister of the petitioner has met with an accident and is in serious condition in the hospital. It is further submitted by the counsel for the petitioner that respondent is not averse to the petitioner going abroad but subject to deposit 50% of the amount of recovered foreign currency from the petitioner, which is onerous.

IN THE HIGH COURT OF DELHI AT NEW DELHI CRL.REV. P. 137 2021 Pronounced on : 11.06.2021 CHEN HSUI YUN Through: Mr. Priyanshu Upadhayay and Mr Amit Kumar Attri Advocates DIRECTORATE OF REVENUE INTELLIGENCE Through: Mr. Satish Aggarwal Sr.SPP with Mr. Gagan Vaswani Advocate HON BLE MR. JUSTICE RAJNISH BHATNAGAR RAJNISH BHATNAGAR J By virtue of this petition filed under Section 397 read with Section 482 Cr.P.C the petitioner is seeking setting aside of the order dated 10.2.2021 passed by Ld. Principal District and Sessions Judge New Delhi in Criminal Revision Petition 09 2021 It is alleged that on the basis of some specific information five passengers namely Chen Po Shuo Wang Wei Ting Liao Kuan Hua Ms Chen Hsui Yun and Ms. Chan Kai Li holder of Republic of Chinavalued at Rs.3 25 51 040 It is further submitted in the reply that imposition of penalty on all the five accused persons including the petitioner herein has also been proposed and the said show cause notice is pending adjudication. It is further submitted in the reply that Sanction and Authorization for launching of prosecution has been granted vide order of the competent authority dated 28.5.2021 submitted that in any event if the order of learned CMM is upheld and the petitioner is allowed to travel abroad the petitioner may be directed to deposit in cash or FDR for an amount at least 50% of the foreign currency in INR recovered from the petitioner. It is further submitted that an amount of Rs.90000 USD was recovered from the checked in baggage of It is further submitted that petitioner has committed an offence punishable under Section 135 of the Customs Act 1962 It is denied that right under Article 21 of Constitution of India. It is further submitted in the reply that petitioner is a foreign national and is a part of conspiracy and if she is allowed to go abroad there are no chances of her returning and facing trial I have heard counsel for the petitioner and Mr. Satish Aggarwala Sr SPP for the Department It is submitted by learned counsel for the petitioner that petitioner is a mere carrier and tried to smuggle foreign currency inadvertently. He further submitted that petitioner has remained in India for about one year and six months and petitioner being a lady aged about 54 years is facing extreme CRL.REV. P. 137 2021 Digitally Signed By:KAMALKANT MENDIRATTASigning Date:11.06.202120:19Signature Not Verified hardship in living in Delhi It is further submitted that petitioner is a lady aged about 54 years and her husband who is aged about 64 years is suffering from various old aged ailments and requires regular check up and care. It is further submitted by learned counsel for the petitioner that there is no one to take care of the family of the petitioner. He submitted that the sister of the petitioner has met with an accident and is in serious condition in It is submitted that learned CMM on the basis of considering the medical report and photographs which were filed by the petitioner along with the application granted permission to the petitioner to go abroad. It is further submitted by learned counsel for the petitioner that petitioner may be allowed to visit her home for some period and subject to conditions further submitted that petitioner would not misuse the liberty to go to her country if granted by this Court and would appear in Court to face the trial It is further submitted by the counsel for the petitioner that respondent is not averse to the petitioner going abroad but subject to deposit 50% of the amount of recovered foreign currency from the petitioner which is onerous It is further submitted that there are no allegations that the petitioner is a Learned Sr. SPP appearing for the respondent has argued on the lines of the reply filed by the Department In the reply it is submitted by the respondent that in the event petitioner is allowed to travel abroad then the petitioner may be directed to deposit at least 50% of the foreign currency in the form of cash or in the form of an FDR with this Court CRL.REV. P. 137 2021 Digitally Signed By:KAMALKANT MENDIRATTASigning Date:11.06.202120:19Signature Not Verified 8 In the instant case petitioner is a lady and is living in India for more than one and a half year I have perused the order passed by learned Metropolitan Magistrate dated 08.06.2020 order dated 18.12.2020 passed by learned Chief Metropolitan Magistrate and the impugned order dated 10.02.2021 passed by learned Principal District and Sessions Judge It has been vehemently argued by learned counsel for the petitioner that sister of the petitioner has met with an accident and learned Metropolitan Magistrate granted permission to go aboard on the basis of those documents. There is no serious challenge to the medical grounds made by the petitioner in the application which was filed before the Chief Metropolitan Magistrate on the basis of which petitioner was allowed to travel abroad. In the reply filed by the respondent it appears that respondent is not averse to the foreign travel of the petitioner if the petitioner is directed to deposit 50% of the amount recovered from her in the form of Indian currency In the instant case according to the respondent amount of USD 90000 was recovered from the petitioner which was around Rs.65 00 000 in Indian currency petitioner in the instant case is a lady aged about 54 years and there is nothing on record to show that she has previously involved in these types of activities. The condition to deposit 50% of the recovered amount to my opinion would be quite onerous Therefore in my opinion justice would be met if the petitioner in the facts and circumstances discussed herein above is allowed to travel abroad to her country i.e. Taiwan period of six months i.e. from CRL.REV. P. 137 2021 Digitally Signed By:KAMALKANT MENDIRATTASigning Date:11.06.202120:19Signature Not Verified 12.06.2021 to 11.12.2021 on deposit of amount of Rs.15 00 000 lakhs in the form of an FDR in the name of Registrar General of this Court and also subject to the following conditions Petitioner at the time of depositing FDR shall also furnish an undertaking to report back in the Court on 08.12.2021 failing which the amount of FDR shall stand forfeited without giving any further notice Petitioner shall furnish her address during her stay aboard Petitioner shall not seek extension of her stay abroad on any ground including medical grounds Petitioner shall authorize her counsel to receive notice on her behalf during her stay abroad During the stay of the petitioner abroad no adjournment shall be sought by her counsel for lack of instructions from her Petitioner shall surrender back her passport on her return from Petitioner shall not directly or indirectly make any inducement threat or promise to any person acquainted with the facts of the case so as to dissuade her from disclosing such facts to the Court or to any custom authorities or tamper with the evidence Petitioner shall not indulge or commit such like offence(s again similar to the offence to which she is accused now The revision petition stands disposed of in the aforesaid terms JUNE 11 2021 RAJNISH BHATNAGAR J CRL.REV. P. 137 2021 Digitally Signed By:KAMALKANT MENDIRATTASigning Date:11.06.202120:19Signature Not Verified

Election candidates not to affix posters on public/ private property without permission: Madras High Court

A strict mandate not to affix posters of election candidates on the walls of public and private property without proper permission with regards to the upcoming Tamil Nadu Urban Local Body Polls was given by the High Court of Madras through the bench of Chief Justice Munishwar Nath Bhandari and Justice D. Bharatha Chakravarthy in the case of P. Arumugam v. Tamil Nadu State Election Commissioner & Ors. (W.P.No.3223 of 2022) The crux of the case is a writ petition was filed by one of the AIADMK candidates in the local body polls, P. Arumugam, alleging that the opponent contestant affixed the poster over the one already affixed by the petitioner candidate. The petitioner, therefore, sought the issuance of directions to the State Election Commissioner and Assistant Returning Officer for additional reinforcement of police force and total coverage throughout the election process. He also submitted photographs to prove the allegations against the opposition candidate. The circular previously issued by Tamil Nadu State Election Commission deprecated the practice of affixing posters on the walls of public/ private property during the election campaign. The circular also indicated that any such disfigurement of property during the election campaign will be ‘curbed with a heavy hand. The circular also directed the returning officers of local bodies to make the candidates/parties to remove any such posters and repaint the walls at their own expense. The first bench of Chief Justice Munishwar Nath Bhandari and Justice D. Bharatha Chakravarthy in observed that the court asked the petitioner if he had the proper permission to affix the posters on the said property, the petitioner couldn’t show any proof to that effect. The court also pointed out that the candidates had pasited the posters even on the wall of the office of Ward No.117 of Corporation. Therefore, the court in the order that strict action will be taken against those who disfigure public/ private places by affixing posters as a part of the election campaign without obtaining the requisite permission. The bench stated “It is disheartening to note that in the name of election, the candidates are affixing posters on the walls belonging to public or private property, without appropriate permission, thereby disfiguring the open places of the city. For that purpose, the Tamil Nadu State Election Commission and the Commissioner of Police, Chennai City are directed to ensure the strict compliance of the Act of 1959 and the circular dated 30.11.2021 issued by the Tamil Nadu State Election Commission by not allowing any candidate to affix poster either on the wall belonging to the public or the private property without proper permission and even ensure prosecution of such person for flouting the rules, by registering complaints on the candidates concerned. We further direct that if anyone is now found affixing posters, by way of CCTV camera placed in the city, they would be prosecuted as per law. The details of such person would be furnished to the Court for initiating contempt proceedings for flouting the direction of the Court. Accordingly, the writ petition is disposed of.”

W.P.No.32222 IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 16.02.2022CORAM :THE HON BLE MR.MUNISHWAR NATH BHANDARI CHIEF JUSTICEANDTHE HON BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHYW.P.No.32222P.Arumugam.. Petitioner Vs.1. The Tamil Nadu State Election Commissioner Office of the Tamil Nadu State Election Commission No.208 2 100 Feet Road Arumbakkam Chennai 600 106.2. The Assistant Returning Officer Zonal Officer IX Ward No.117 Corporation of Chennai Rippon Buildings Chennai 3.3. The Commissioner of Police Chennai City Egmore.4. The Assistant Commissioner of Police Teynampet Chennai.5. The Assistant Commissioner of Police Mambalam Chennai... Respondents ___________https: www.mhc.tn.gov.in judis W.P.No.32222Prayer: Petition filed under Article 226 of the Constitution of India praying for a writ of Mandamus directing the respondents to provide uninterrupted and additional reinforcement of police force and also for total coverage throughout the election process on 19.02.2022 in Ward No.117.For the Petitioner: Mr.EV.ChandruFor the Respondents: Mr.S.Sivashanmugam Standing Counsel for respondent 1 Mrs.Karthika Ashok for respondent 2 Mr.R.Shunmugasundaram Advocate General Assisted by Mr.P.Muthukumar State Government Pleader for respondents 3 to 5ORDER(Order of the Court was made by the Hon ble Chief Justice)The writ petition has been filed seeking a direction to the respondents to provide uninterrupted and additional reinforcement ___________https: www.mhc.tn.gov.in judis W.P.No.32222of police force and total coverage throughout the election process scheduled to be held on 19.02.2022 in Ward No.117.2. Learned counsel for the petitioner submits that a complaint was lodged against the opponent contestant belonging to ruling party for affixing their posters on the posters already affixed by the petitioner. The petitioner has also made a representation to the respondents 1 and 2 in this regard. The petitioner has filed certain photographs to demonstrate the aforesaid action of the opponent contestant.3. Learned counsel for the Tamil Nadu State Election Commission and the Chennai Corporation would state that affixing posters on walls in public property or private property without permission is an offence and liable for prosecution under the provisions of the Tamilnadu Open PlacesAct 1959 and is in breach of the circular issued by the Tamil Nadu State Election Commission on 30.11.2021 deprecating the unhealthy practice of disfigurement defacement of ___________https: www.mhc.tn.gov.in judis W.P.No.32222public and private properties during the election campaign and directing the authorities to take necessary immediate action.4. We have considered the submissions and also perused the records. 5. On perusal of the photographs filed in the typed set of papers we find that posters have been affixed by the candidates on the walls including the wall of the office of Ward No.117 of Chennai Corporation. Affixing posters on the wall belonging to the public office or even private office without appropriate permission is prohibited.6. In view of the above the petitioner was asked to show the permission obtained by him for affixing the poster or even a small sticker. The petitioner could not show any permission obtained by him in that regard. We find that the petitioner has also affixed his poster on the poster already affixed by the opponent contestant. Thus we do not find any substance in the allegation made by the ___________https: www.mhc.tn.gov.in judis W.P.No.32222petitioner and for grant of prayer in this petition otherwise no ground is made out.7. It is disheartening to note that in the name of election the candidates are affixing posters on the walls belonging to public or private property without appropriate permission thereby disfiguring the open places of the city. For that purpose the Tamil Nadu State Election Commission and the Commissioner of Police Chennai City are directed to ensure the strict compliance of the Act of 1959 and the circular dated 30.11.2021 issued by the Tamil Nadu State Election Commission by not allowing any candidate to affix poster either on the wall belonging to the public or the private property without proper permission and even ensure prosecution of such person for flouting the rules by registering complaints on the candidates concerned. In this context the relevant portion of the circular dated 30.11.2021 is reproduced hereunder:"3) Both the Public and Private places are disfigured at the time of election by way of pasting election advertisement or posters and writings on the walls and rocks in violation of the Model Code of Conduct. ___________https: www.mhc.tn.gov.in judis W.P.No.32222Needless to say that this spoils the beauty of the towns and cities and causes loss to the private house owners who keep their houses and walls neatly. In order to prevent such disfigurement the Tamil Nadu Open PlacesAct 1959provides that disfigurement of any public or private place is an offence and punishable with imprisonment which may extend to one year or with fine which may extend to Five thousand rupees or with both. The offences are cognizable under the Act. Abetment of such disfigurement is also made punishable under the provisions of the Act.4) The police officers are empowered to remove erase pull down and destroy objectionable advertisements.5) The Tamil Nadu State Election Commission is of the firm view that this unhealthy practice of disfigurement defacement of public and private properties during the election campaign should be curbed with a heavy hand by invoking the provisions of law referred above. The Tamil Nadu State Election Commission therefore directs the Returning ___________https: www.mhc.tn.gov.in judis W.P.No.32222Officers Assistant Returning Officers of local bodies to take immediate measures wherever necessary for restoration to its original position of the defaced public private properties by directing the political parties and contesting candidates to remove their posters slogans and repaint the walls of public private property at their own expenses. In case of failure to comply with the instructions prosecution should be lodged against the concerned under the provisions of law referred above. Strict vigilance should be maintained to prevent such defacement of public private property particularly during election campaign and appropriate legal action should be taken against the violators.6) The Tamil Nadu State Election Commission hereby directs the District Collectors Commissioners of Police the Superintendents of Police and the Commissioner Chennai Corporation to strictly enforce the implementation of Model Code of Conduct by taking necessary action by issuing suitable instructions to their subordinate officers and also by launching inspection teams from time to time during the campaign period. Prompt prosecution of offenders in the early stages of campaigning will act ___________https: www.mhc.tn.gov.in judis W.P.No.32222as great deterrent to others. They are also requested to give wide publicity to the provisions of the said Act and the Model Code of Conduct among the general public political parties and contesting candidates. The Hon ble Supreme Court of India and the Hon ble High Court of Madras also given various Judgment in this regard to implement the provisions of the Act."[emphasis supplied]8. In view of the above a copy of the order would be served today itself on learned counsel appearing for the Tamil Nadu State Election Commission Chennai Corporation and learned Advocate General for compliance of the direction of this order.9. A wide publicity of this order would be given with a direction to all the candidates not to affix posters on the walls of public property and private property without proper permission and to remove the posters pasted on the walls immediately. The cost incurred for removal of such posters be recovered from the candidate whose poster was pasted on the wall of private property ___________https: www.mhc.tn.gov.in judis W.P.No.32222or public property without proper permission. 10. We further direct that if anyone is now found affixing posters by way of CCTV camera placed in the city they would be prosecuted as per law. The details of such person would be furnished to the Court for initiating contempt proceedings for flouting the direction of the Court. Accordingly the writ petition is disposed of . 11. Let this writ petition be listed on 21.02.2022 for filing report as to the strict compliance of this order by all the respondents to whom direction has been given.(D.B.C. J.) 16.02.2022 Index : Yes Nokpl drm___________https: www.mhc.tn.gov.in judis W.P.No.32222To:1. The Tamil Nadu State Election Commissioner Office of the Tamil Nadu State Election Commission No.208 2 100 Feet Road Arumbakkam Chennai 600 106.2. The Assistant Returning Officer Zonal Officer IX Ward No.117 Corporation of Chennai Rippon Buildings Chennai 3.3. The Commissioner of Police Chennai City Egmore.4. The Assistant Commissioner of Police Teynampet Chennai.5. The Assistant Commissioner of Police Mambalam Chennai.___________https: www.mhc.tn.gov.in judis W.P.No.32222M.N.BHANDARI CJAND D.BHARATHA CHAKRAVARTHY J.(kpl) W.P.No.32222 16.02.2022___________

The accused person has committed the said offence, then, the Court has the power to call such other person and to join him in the proceedings for the said offence: High Court of Allahabad

At the time of inquiry or at the time of the trial of an offence, the evidence collected or recorded discloses that any person other than the accused has committed the said offence, then, the Court has the power to call such other person and join him in the proceedings for the said offence 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, Mishri Lal V/s  State of U.P. and Another [CRIMINAL REVISION No. – 3260 of 202] dealt with an issue mentioned above. The present criminal revision has been filed seeking to set aside the judgement and order dated 17.11.2021 passed by Additional Sessions Judge, Court No. 1, Mainpuri in Session Trial No. 316 of 2014 (State vs. Anoj Kumar), under Sections 307, 504 I.P.C., Police Station-Kishni, District-Mainpuri, arising out of Case Crime No. 266 of 2014, on the application of the opposite party no.2 filed under Section 319 of the Code of Criminal Procedure, 19731. As regards the degree of satisfaction required for invoking the powers under Section 319 of the Code, it was held that the test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction The power to proceed against persons named in FIR with specific allegations against them, but not charge-sheeted, was reiterated in Rajesh and others Vs. The state of Haryana,4 and it was held that persons named in the FIR but not implicated in charge sheet can be summoned to face trial, provided during the trial some evidence surfaces against the proposed accused. The FIR version as also the evidence before the trial judge being indicative of the complicity of the revisionist, though not arraigned as an accused in the charge-sheet, it was open to the trial court to form a view that the revisionist is tried together with the other accused, and for the said purpose summon the revisionist in the exercise of powers under Section 319 of the Code. The court perused the facts and arguments presented in the case  The power under Section 319 of the Code to summon even those persons who are not named in the charge-sheet to appear and face trial, being unquestionable and the object of the provision being not to allow a person who deserves to be tried to go scotfree by being not arraigned in the trial in spite of the possibility of his complicity which can be gathered from the evidence during the course of the trial, the order passed under Section 319 of the Code summoning the revisionist does not contain any material error so as to warrant inference.

Court No. 85 Case : CRIMINAL REVISION No. 32621 Revisionist : Mishri Lal Opposite Party : State of U.P. and Another Counsel for Revisionist : Kamal Dev Rai Counsel for Opposite Party : G.A Hon ble Dr. Yogendra Kumar Srivastava J Heard Sri Kamal Dev Rai learned counsel for the applicant and Sri Arvind Kumar learned Additional Government Advocate appearing for the State opposite party The present criminal revision has been filed seeking to set aside the judgement and order dated 17.11.2021 passed by Additional Sessions Judge Court No. 1 Mainpuri in Session Trial No. 3114under Sections 307 504 I.P.C. Police Station Kishni District Mainpuri arising out of Case Crime No. 2614 on the application of the opposite party no.2 filed under Section 319 of the Code of Criminal Procedure 19731 Learned counsel for the revisionist has sought to assail the order passed by the court below by referring to the factual aspects of the case to contend that the revisionist has been falsely implicated in the criminal case. He has submitted that the jurisdiction under Section 319 of the Code is to be exercised in an extra ordinary situation where there is a strong possibility of the conviction of the accused who is proposed to be summoned and the powers are not to be exercised in a routine manner. It is further pointed out that the Investigating Officer did not find any material against the revisionist and no charge sheet having been submitted 1 The Code against him there was no further material on the basis of which the trial court could have summoned the revisionist Learned Additional Government Advocate I has controverted the assertions made by the counsel for the revisionist by drawing attention to the fact that the revisionist herein was named in the FIR and as per the FIR version he was assigned a specific role. Attention has been drawn to the fact that the testimony of PW 1 and PW 2 during the course of trial have pointed to the complicity of the revisionist and his clear role in the incident. It is also contended that the testimony before the trial judge would have to be given more weight than the report submitted by the Investigating Officer pursuant to the The ambit and scope of the powers of the Magistrate under Section 319 of the Code were considered in the Constitution Bench judgment of the Supreme Court in Hardeep Singh and Others vs. State of Punjab2. Referring to the object of the provision it was held that the object of the provision is that the real culprit should not get away unpunished and in a situation where the investigating agency for any reason does not array one of the real culprits as an accused the court is not powerless in calling the said accused to face trial. It was stated thus : “8.The constitutional mandate under Articles 20 and 21 of the Constitution of India 1950 provides a protective umbrella for the smooth administration of justice making adequate provisions to ensure a fair and efficacious trial so that the accused does not get prejudiced after the law has been put into motion to try him for the offence but at the same time also gives equal protection to victims and to society at large to ensure that the guilty does not get away from the clutches of law. For the empowerment of the courts to ensure that the criminal administration of justice works properly the law was appropriately codified and modified by the legislature under CrPC indicating as to how the courts should proceed in order to ultimately find out the truth so that an innocent does not get punished but at the same time the guilty are brought to book under the law. It is these 2 3 SCC 92 ideals as enshrined under the Constitution and our laws that have led to several decisions whereby innovating methods and progressive tools have been forged to find out the real truth and to ensure that the guilty does not go unpunished. 9. The presumption of innocence is the general law of the land as every man is presumed to be innocent unless proven to be guilty Alternatively certain statutory presumptions in relation to certain class of offences have been raised against the accused whereby the presumption of guilt prevails till the accused discharges his burden upon an onus being cast upon him under the law to prove himself to be innocent. These competing theories have been kept in mind by the legislature. The entire effort therefore is not to allow the real perpetrator of an offence to get away unpunished. This is also a part of fair trial and in our opinion in order to achieve this very end that the legislature thought of incorporating provisions of Section 319 Code of Criminal Procedure. It is with the said object in mind that a constructive and purposive interpretation should be adopted that advances the cause of justice and does not dilute the intention of the statute conferring powers on the court to carry out the abovementioned avowed object and purpose to try the person to the satisfaction of the court as an accomplice in the commission of the offence that is the subject matter of trial. 12. Section 319 Code of Criminal Procedure springs out of the doctrine judex damnatur cum nocens absolviturand this doctrine must be used as a beacon light while explaining the ambit and the spirit underlying the enactment of Section 319 CrPC It is the duty of the court to do justice by punishing the real culprit Where the investigating agency for any reason does not array one of the real culprits as an accused the court is not powerless in calling the said accused to face trial. The question remains under what circumstances and at what stage should the court exercise its power as contemplated in Section 319 CrPC 17. Section 319 CrPC allows the court to proceed against any person who is not an accused in a case before it. Thus the person against whom summons are issued in exercise of such powers has to necessarily not be an accused already facing trial. He can either be a person named in Column 2 of the chargesheet filed under Section 173 Code of Criminal Procedure or a person whose name has been disclosed in any material before the court that is to be considered for the purpose of trying the offence but not investigated. He has to be a person whose complicity may be indicated and connected with the commission of the offence. 18. The legislature cannot be presumed to have imagined all the circumstances and therefore it is the duty of the court to give full effect to the words used by the legislature so as to encompass any situation which the court may have to tackle while proceeding to try an offence and not allow a person who deserves to be tried to go scot free by being not arraigned in the trial in spite of possibility of his complicity which can be gathered from the documents presented by 19. The court is the sole repository of justice and a duty is cast upon it to uphold the rule of law and therefore it will be inappropriate to deny the existence of such powers with the courts in our criminal justice system where it is not uncommon that the real accused at times get away by manipulating the investigating and or the prosecuting agency. The desire to avoid trial is so strong that an accused makes efforts at times to get himself absolved even at the stage of investigation or inquiry even though he may be connected with the commission of the offence.” As regards the degree of satisfaction required for invoking the powers under Section 319 of the Code it was held that the test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge but short of satisfaction to an extent that the evidence if goes unrebutted would lead to conviction. It was observed as follows : “105. Power under Section 319 Code of Criminal Procedure is a discretionary and an extra ordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner. 106. Thus we hold that though only a prima facie case is to be established from the evidence led before the court not necessarily tested on the anvil of Cross Examination it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge but short of satisfaction to an extent that the evidence if goes unrebutted would lead to conviction. In the absence of such satisfaction the court should refrain from exercising power under Section 319 Code of Criminal Procedure. In Section 319 Code of Criminal Procedure the purpose of providing if “it appears from the evidence that any person not being the accused has committed any offence” is clear from the words "for which such person could be tried together with the accused." The words used are not “for which such person could be convicted”. There is therefore no scope for the Court acting under Section 319 Code of Criminal Procedure to form any opinion as to the guilt of the accused. The question as to in what situations the power under the section can be exercised in respect of persons not named in the FIR or named in the FIR but not charge sheeted or discharged was also considered and it was held that a person whose name does not appear even in the FIR or in the charge sheet or whose name appears in the FIR and not in the charge sheet can still be summoned by the court provided the conditions under the section stand fulfilled. It was observed as follows : “111. Even the Constitution Bench in Dharam Palhas held that the Sessions Court can also exercise its original jurisdiction and summon a person as an accused in case his name appears in Column 2 of the chargesheet once the case had been committed to it. It means that a person whose name does not appear even in the FIR or in the chargesheet or whose name appears in the FIR and not in the main part of the chargesheet but in Column 2 and has not been summoned as an accused in exercise of the powers under Section 193 Code of Criminal Procedure can still be summoned by the court provided the court is satisfied that the conditions provided in the said statutory provisions stand fulfilled. 117.6 A person not named in the FIR or a person though named in the FIR but has not been chargesheeted or a person who has been discharged can be summoned under Section 319 Code of Criminal Procedure provided from the evidence it appears that such person can be tried along with the accused already facing trial. However in so far as an accused who has been discharged is concerned the requirement of Sections 300 and 398 Code of Criminal Procedure has to be complied with before he can be summoned afresh. ” The word evidence as used under Section 319(1) of the Code was also considered and it was held as follows : “84. The word "evidence" therefore has to be understood in its wider sense both at the stage of trial and as discussed earlier even at the stage of inquiry as used under Section 319 Code of Criminal Procedure.The court therefore should be understood to have the power to proceed against any person after summoning him on the basis of any such material as brought forth before it. The duty and obligation of the court becomes more onerous to invoke such powers cautiously on such material after evidence has been led during trial. 85. In view of the discussion made and the conclusion drawn hereinabove the answer to the aforesaid question posed is that apart from evidence recorded during trial any material that has been received by the court after cognizance is taken and before the trial commences can be utilised only for corroboration and to support the evidence recorded by the court to invoke the power under Section 319 Code of Criminal Procedure. The “evidence” is thus limited to the evidence recorded during trial. ” The principles with regard to exercise of power by the court to summon an accused under Section 319 of the Code were reiterated in S. Mohammed Ispahani Vs. Yogendra Chandak and others3 and it was held that the power under Section 319 to summon even those persons who are not named in the charge sheet to appear and face trial is unquestionable. It was observed thus : “28.Insofar as power of the Court Under Section 319 of the Code of Criminal Procedure to summon even those persons who are not named in the charge sheet to appear and face trial is concerned the same is unquestionable. Section 319 of the Code of Criminal Procedure is meant to rope in even those persons who were not implicated when the charge sheet was filed but during the trial the Court finds that sufficient evidence has come on record to summon them and face the trial. In Hardeep Singh s case the Constitution Bench of this Court has settled the law in this behalf with authoritative pronouncement thereby removing the cobweb which had been created while interpreting this provision earlier. As far as object behind Section 319 of the Code of Criminal Procedure is concerned the Court had highlighted the same as under: 19.The court is sole repository of justice and a duty is cast upon it to uphold the Rule of law and therefore it will be inappropriate to deny the existence of such powers with the courts in our criminal justice system where it is not uncommon that the real accused at times get away by manipulating the investigating and or the prosecuting agency. The desire to avoid trial is so strong that an Accused makes efforts at times to get himself absolved even at the stage of investigation or inquiry even though he may be connected with the commission of the offence. The power to proceed against persons named in FIR with specific allegations against them but not charge sheeted was reiterated in Rajesh and others Vs. State of Haryana 4 and it was held that persons named in the FIR but not implicated in charge sheet can be summoned to face trial provided during the trial some evidence surfaces against the proposed accused The exercise of powers under Section 319 of the Code for summoning an additional accused again came up for consideration in Saeeda Khatoon Arshi Vs. State of Uttar Pradesh and another5 and it was held that it is the duty of the court to give full effect to the words used by the legislature so as to encompass any 3 16 SCC 226 4 6 SCC 368 2020) 2 SCC 323 situation which the court may have to tackle while proceeding to try an offence and not allow a person who deserves to be tried to go scot free by being not arraigned in the trial inspite of the possibility of his complicity which can be gathered from the documents presented by the prosecution In the facts of the present case the court below has taken note of the fact that the revisionist was not only named in the F.I.R. but he was also assigned a role in the incident. The testimony of P.W. 1 and P.W. 2 being indicative of the complicity of the revisionist have also been referred and in particular their statements that at the time of the incident the revisionist was present at the spot and it was the licensed weapon of the revisionist which was used by the principal accused for causing the firearm injuries. Upon considering the settled legal position with regard to exercise of powers under Section 319 the court below has passed the order summoning the revisionist The FIR version as also the evidence before the trial judge being indicative of the complicity of the revisionist though not arraigned as an accused in the charge sheet it was open to the trial court to form a view that the revisionist be tried together with the other accused and for the said purpose summon the revisionist in exercise of powers under Section 319 of the Code The broad principles which have been laid down for exercise of powers under Section 319 of the Code underline the object of the enactment that the real perpetrator of the offence should not get away unpunished and in a situation where the investigating agency for any reason does not array any culprit as an accused the court would not be powerless in calling the accused to face trial rather it would be duty of the court to do justice by punishing the real culprit The test which has been laid down with regard to the degree of satisfaction required for invoking the powers under Section 319 is one which is more than prima facie case as exercised at the time of framing of charge but short of satisfaction to an extent that the evidence if goes unrebutted would lead to conviction The power to proceed under Section 319 has also been held to be exerciseable in respect of persons though named in the FIR but not charge sheeted provided the court is satisfied that the conditions provided under the section stand fulfilled. Section 319of the Code envisages that where in the course of any inquiry into or trial of an offence it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused the Court may proceed against such person for the offence which he appears to have committed The word evidence used under Section 319of the Code has been held to be understood to refer to the evidence recorded during trial and also any material that has been received by the court after cognizance is taken and before the trial commences to be utilized for corroboration and to support the evidence recorded by the court. The evidence recorded by the court during trial is thus to be accorded primacy and for the purpose of exercise of power under Section 319 of the Code would have to be given weight over the material which was collected during the course of investigation The contention which has been sought to be raised placing reliance upon the material collected by the investigating officer during the course of investigation for the purpose of exercise of powers under Section 319 of the Code thus cannot be accepted. The power under Section 319 of the Code to summon even those persons who are not named in the charge sheet to appear and face trial being unquestionable and the object of the provision being not to allow a person who deserves to be tried to go scot free by being not arraigned in the trial inspite of possibility of his complicity which can be gathered from the evidence during the course of trial the order passed under Section 319 of the Code summoning the revisionist does not contain any material error so as to warrant inference The aforementioned legal position has been considered in detail in recent decisions of this Court in Adesh Tyagi vs. State of U.P. and Another6 and Upendra @ Mohit vs. State of U.P. and 22. Counsel for the applicant at this stage submits that he does not dispute the aforementioned legal position with regard to the exercise of powers under Section 319 of the Code and states that the applicant would submit to the jurisdiction of the court below and seek bail It goes without saying that in case any such application is moved the court below would be expected to dispose it of in accordance with the settled principles of law Subject to the aforesaid observation the revision stands Order Date : 4.12.2021 Dr. Y.K. Srivastava J 2021ACC 484 7 Criminal Revision No. 19821 decided on 07.10.2021

Weightage is given to the seriousness of the crime over the examination of the witnesses’ statements: Supreme Court of India

The appellant is the father of the deceased and this appeal was brought to light with regard to a judgment given by a single judge in the High Court of Judicature for Rajasthan at the Bench at Jaipur on the 12th February 2021 where the respondent was granted bail after being convicted for murder. In the Supreme Court of India, this judgement was given by Honorable Dr Justice Dhananjaya Y Chandrachud, on the 27th of September 2021 in the case of Shri Mahadev Meena Versus Praveen Rathore and Another, [Criminal Appeal No. 1089 of 2021] (Arising Out of SLP (Criminal) [No. 4072 of 2021]). The following are the brief facts of the case, the deceased (appellants’ son) worked as a senior technical officer with the Intelligence Bureau in New Delhi. The co-accused, in this case, is his wife whom he married in 2011 who worked as a teacher with the Panchayat Samiti, the couple has two young children from the wedlock and there have been allegations that the marriage endured difficulties. In 2018 the deceased travelled from New Delhi to Ramgajmandi and he boarded a train for Jhalawar to reach back home. However, he did not reach home and was instead found in an unconscious state by the brother-in-law and when he was rushed to the hospital, he was brought dead. After the appellant reached out to the SHO in Jhalawar on the 15th of February the post-mortem was conducted which reported that the right lung, liver, spleen and kidneys were congested and doctors declared it as an unnatural death which was registered on the same day under the provisions of Section 174 of the Code of Criminal Procedure. After the appellant wrote a complaint to the police in Jhalawar, the investigation process begun.  the histopathological report indicated that the lungs of the deceased showed signs of congestion and pulmonary edema. There has been a prior attempt made in order to kill him, the first respondent was a constable in the Anti-Corruption Bureau, Jhalawar and his wife were colleagues with the deceased wife. The deceased two months after his death informed the 1st respondent to not visit his house anymore. The first respondent was absent in his house as well as in cremation he might have run away from the crime. The wife of the deceased was aware with regard to his transportation timings which was also evident to respondent 1 from the call records. The first respondent clearly was very close to the deceased wife and played an active role in his murder. After investigation, it was held that the accused in this case were communicating with each other on the day of the murder. One of the accused revealed that the death was caused by injecting him with ketamine, an anaesthetic drug. Now statements were being recorded under Section 161 CrPC, the 1st one was a resident of Jhalawar (witness of murder) held that he saw the deceased at the railway station and made an allegation that he saw the first respondent in a Ford Figo along with two others. 2nd statement under Section 161 CrPC held that the first respondent is his relative and was used as the driver. Besides these statements, one of the co-accused had a  personal diary which was discovered in the operation theatre at the Orthopedic Hospital, Jhalawar. The dairy contained the phone numbers of several persons including the first respondent, who was arrested. The mobile phone of the wife was seized and it showed that she was constantly in touch with the 1st respondent after the death of her husband, the first respondent was arrested and the police recovered a pair of glasses (spectacles) belonging to the deceased under Section 27 of the Indian Evidence Act 1872. Now the culprits were arrested under Sections 302, 364, 201 and 120B of the IPC and under Section 3(2)(v), SC/ST Ac. The bail for the first respondent was dismissed but the wife of the deceased was granted bail because she had an eleven-month-old child and the child was confined in jail with her. The first respondent was denied bail many times by the High Court and eventually by the order passed by the single judge on the 12th February 2021 allowed the application for bail. On various grounds, some of them were that the FIR was lodged late and only 25 witnesses out of 76 were examined. The counsel representing the appellant held that the High Court has committed a serious error in enlarging the first respondent on bail and contradicted all the grounds on which the high court used to grant bail for the first respondent. The counsel representing the first respondent held that the witness statements were all false and had been done with the influence of money and many other grounds. The Honourable Court has relied upon the following judgments Ram Govind Upadhyay v. Sudharshan Singh [(2002) 3 SCC 598] listing the considerations that govern the grant of bail without attributing an exhaustive character to them. Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana [2021 (6) SCC 230]. The Honourable Supreme Court held that “The High Court ought to have had due to regard to the seriousness and gravity of the crime The material which has emerged during the course of an investigation cannot simply be ignored or glossed over the High Court was in error in allowing the application for bail, for the reasons stated in the judgments we allow the appeal and set aside the impugned order of the High Court dated 12 February 2021 enlarging the first respondent on bail. As a consequence, the first respondent shall surrender forthwith and be taken into custody.” Click here to read the judgment

IN THE CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 10821 Arising Out of SLPNo. 40721 Shri Mahadev Meena ….. Appellant Praveen Rathore And Another ….. Respondents JUDGMENT Dr Dhananjaya Y Chandrachud J This appeal arises from a judgment dated 12 February 2021 of a Single Judge of the High Court of Judicature for Rajasthan at the Bench at Jaipur by which the first respondent has been enlarged on bail. The appellant is the father of the deceased at whose behest the first information report1 was registered. 1 “FIR” 2. The appellant’s son was a Senior Technical Officer with the Intelligence Bureau in New Delhi. On 21 January 2011 he got married to Anita Meena who is a co accused implicated in his murder. The couple had two young children aged 6 years and 4 months. The relationship of the couple is alleged to have encountered difficulties. On 14 February 2018 the deceased travelled from New Delhi to Ramgajmandi from where he boarded a train at 1800 hours for Jhalawar where his home was situated. Between 7: 30 and 8.00 pm the appellant received a phone call that his son had been found in an unconscious state near Railway Crossing Puliya and was declared brought dead at the hospital. On 14 February 2018 the appellant submitted a written intimation to the SHO Jhalawar on the basis of which Merg Report No.04 2018 was registered by the police. On 15 February 2018 the post mortem was conducted by a Medical Board constituted by the Medical Superintendent of BRS Hospital which reported that the right lung liver spleen and kidneys were congested. The remarks of the Medical Officer indicated that the viscera was preserved for chemical and histopathological examination and a final opinion regarding the cause of death would be furnished after receiving those reports. On the same day an unnatural death was registered under the provisions of Section 174 of the Code of Criminal Procedure 19732 with UD No.0004 2018 at the instance of the appellant. On 28 February 2018 samples of the viscera obtained during the post mortem were sent to the Medical College Jhalawar and Forensic Science Laboratory3 Jaipur for examination. 2 “CrPC” 3 “FSL” 3. On 5 March 2018 the appellant submitted an application Superintendent of Police Jhalawar for the registration of an FIR. No action having been taken on the basis of the application the appellant submitted a written complaint on 9 March 2018 to the CJM Jhalawar who ordered an investigation. On 10 March 2018 the histopathological report was received from the Department of Pathology Jhalawar Medical College and SRG Hospital which indicated that the lungs of the deceased showed signs of congestion and pulmonary edema. On 12 April 2018 FIR No.69 2018 was registered by PS Jhalawar Sadar under Sections 302 and 120B of the Indian Penal Code4. The contents of the FIR which was registered at the behest of the appellant indicate that: i) The appellant’s son married Anita Meena on 21 January 2011 ii) Six months after his marriage the appellant’s son was selected for appointment with the Intelligence Bureau while his spouse was working as a teacher with the Panchayat Samiti iii) Together the deceased and his spouse had purchased a house at Jhalawar behind Jhalawar’s housing board colony through the first respondent who was working with the Anti Corruption Bureau in Jhalawar iv) The couple had two children aged 6 years and 4 months v) The deceased had proceeded to Ramganjmandi on 14 February 2018 and thereafter for Jhalawar by train. Between 7.30 and 8.00 pm his body was 4 “IPC” found about 30 meters away from the railway crossing culvert. The house of the deceased is behind a housing board colony which is about 500 meters away from the railway station. The body was taken by his brother in law to Jhalawar SRG Hospital where he was brought dead vi) The homicidal death of the appellant’s son had occurred as a result of a conspiracy to murder him and previously on 5 January 2018 an attempt had been made to kill him while he was on his way from Jhalawar to Ramganjmandi vii) While the first respondent was working as a constable in the Anti Corruption Bureau Jhalawar his wife was working in a school together with the wife of the deceased. About two months prior to the incident the deceased had called upon the first respondent not to visit their house anymore viii) After the death of the appellant’s son the first respondent was not present either in the hospital or during the cremation ix) The arrival of the deceased from Delhi to Jhalawar was within the knowledge of his wife and the first respondent which would be evident from the call data records x) The first respondent was present at every hour when the wife of the deceased delivered a child and he had developed close relations with her The body had been planted by killing the deceased at some other place under a conspiracy and the murder has been committed using a special xii) The first respondent had been an active participant in the case involving the method and murder of the deceased. On 9 May 2018 FSL report 285 2018 dated 4 May 2018 was received from the FSL Jaipur stating: “RESULT OF EXAMINATION On chemical examination portions of visceraand blood sample three packets marked A B and C respectively gave negative tests for metallic poisons ethyl and methyl alcohol cyanide alkaloids Barbiturates tranquillizers and insecticides.” Based on an analysis of the call details records co accused Shahrukh Khan was arrested on 19 June 2018. The first respondent was found to be absconding. It is alleged that the call data records show that on the date of the incident the accused persons were in communication with each other. During the course of the investigation it was allegedly revealed by Sharukh Khan that the death of the deceased had occurred by injecting him with ketamine an anesthetic drug. A report of the Medical Board constituted by the police dated 19 June 2018 was called. The relevant extracts are reproduced below: “Q. No. 4 Can use this injection for any criminal purpose If yes How Ans. No. 4 The possibility of criminal use of this injection cannot be ruled out. The person can be sedated by this injection which reduces his or her ability to resist. Q. No. 6 Whether giving heavy dose of Ketamine Injection can cause Lungs congestion and pulmonary edema or not Ans. No. 6 Lungs congestion & pulmonary edema is possible if a person has hypoxia or asphyxia by giving heavy dose of Ketamine Injection.” During the course of the investigation statements were recorded under Section 161 CrPC including the statement of Chotmal Kashyap dated 22 June 2018 andManohar Rathore dated 12 August 2018. The first of these statements was of a resident of Jhalawar who claims to have seen the deceased disembarking at the railway station and going towards the road of the housing board. While coming out of the station he allegedly saw the first respondent along with two other persons in a Ford Figo vehicle. According to him the first respondent stepped out of the vehicle and went towards the same road. The second statement under Section 161 CrPC is of a relative of the first respondent whose services were being used as a driver by the first respondent. He has narrated certain events which took place on 3 May 2018 9 May 2018 and 14 June 2018 when the first respondent is alleged to have visited the FSL at Jaipur. Apart from the statements under Section 161 CrPC on 23 June 2018 a recovery was made at the behest of co accused Santosh Nirmal of a personal diary stored in a bag in the Operation Theatre Store at the Orthopedic Hospital Jhalawar. The diary is apparently printed of the year 2010. It is alleged to contain telephone numbers of several persons including the first respondent against the date 15 January while against the date of 16 January it records that injections of two ketamine vials 10 ml 500 mg had been handed over to the first respondent. Santosh Nirmal who worked as an Assistant in the Trauma Centre Jhalawar was arrested on 21 June 2018. On 24 June 2018 a vial of ketamine and syringe were alleged to have been discovered in consequence of information received from accused Shahrukh Khan. The wife of the deceased was arrested on 25 June 2018 while co accused Farhan Khan was arrested on 28 June 2018. The mobile phone of the wife of the deceased was seized and it showed that she had been in constant touch with the first respondent after the death of her husband. The first respondent was arrested on 18 August 2018. It is alleged that on 19 August 2018 the police recovered an empty vial of ketamine a syringe mobile cover and a pair of glasses spectacles) belonging to the deceased in consequence of the information furnished by the first respondent under Section 27 of the Indian Evidence Act 1872. On 25 October 2018 a report of the State FSL at Jaipur was submitted indicating that the samples of remnants containing viscera had tested positive for the presence of the drug Ketamine. On 2 September 2018 a charge sheet was submitted for offences under Sections 302 364 201 and 120B of the IPC and under Section 3(2)(v) SC ST Act against the first respondent and four other co accused namely Anita Meena Shahrukh Khan Farhan Khan andSantosh Nirmal. The application for bail filed by the first respondent was dismissed by a Single Judge of the High Court on 26 February 2019. The co accused Anita Meena was granted bail on 4 June 2019. The High Court noted that she had a child of eleven months and due to her incarceration her child was also confined with her in the jail. A Special Leave Petition filed against the order granting bail to the co accusedon the above ground was dismissed by this Court on 6 September 2019. On 5 August 2020 and 23 November 2020 the High Court dismissed the application for bail filed by the first respondent as withdrawn. The Special Judge SC ST Act Cases Jhalawar dismissed the bail application filed the first respondent on 19 December 2020. Eventually by the impugned order dated 12 February 2021 the Single Judge has allowed the application for bail. In allowing the application the High Court has relied upon on the following circumstances: The appellant was in custody for a period of two and a half years ii) Out of seventy six witnesses only twenty five have been examined There was a delay in lodging the FIR iv) While the initial FSL report did not contain any reference to the use of the Ketamine it was after four months that police had developed a case that Ketamine was administered to the deceased and The co accused had been enlarged on bail. 10. Ms Chitrangda Rastravara learned Counsel appearing on behalf of the appellant submitted that there has been a serious error on the part of the High Court in enlarging the first respondent on bail. Learned Counsel submitted that: There was no delay on the part of the appellant in lodging the written intimation about the unnatural death of his son immediately after the incident on 14 February 2018 ii) On 15 February 2018 a report of an unnatural death was registered under the provisions of Section 174 of the CrPC The police initially failed to register the FIR and it was only on 12 April 2018 that FIR 69 2018 was registered at PS Jhalabad Sadar iv) The charge sheet has been filed after investigation and though the case ultimately rests on circumstantial evidence there is sufficient material on record at this stage to indicate the involvement of the first respondent The FSL report indicates the presence of the drug Ketamine while even the earlier report which has been brought on record demonstrates pulmonary edema in the lungs of the deceased which was a likely consequence of the administration of Ketamine vi) The High Court in granting bail has failed to notice the seriousness and gravity of the crime involving the murder of the appellant’s son who was employed with the Intelligence Bureau in New Delhi vii) The first respondent is a constable employed with the Anti Corruption Bureau at Jhalawar. There is every likelihood of the evidence being tampered with if the first respondent is enlarged on bail and The circumstances which weighed with the High Court in granting bail to the co accused Anita Meena namely that she had an infant of eleven months would demonstrate that bail was granted in special circumstance. The first respondent who is a prime accused cannot claim parity. 11. On the other hand Mr Siddhartha Dave learned Senior Counsel appearing on behalf of the first respondent submitted that: At this stage when the court is dealing with the grant of bail there is no material on record to implicate the first respondent where the case of the prosecution would rest on circumstantial evidence The recovery of the diary of co accused Santosh Nirmal regarding the handing over of the Ketamine vial to the first respondent would be inadmissible in evidence against the first respondent iii) The recoveries which have been made over six months after the date of the incident after the arrest of the first respondent on 18 August 2018 from a public place would have to be discounted iv) The initial FSL report did not contain a reference to the presence of Ketamine while it is only in a subsequent FSL report that traces of the drug have been noticed. The burden would lie on the prosecution to explain the circumstances in which this fact emerged belatedly in the report dated 25 October 2018 nearly eight months after the date of incident The statement given by Chotmal Kashyap under Section 161 of the CrPC does not disclose that the deceased and the first respondent were last seen together. Further Chotmal Kashyap has made a profession out of appearing vi) The first respondent should be enlarged on bail on the ground of parity with as witness in many cases and the co accused. 12. The order of the High Court contains serious infirmities. The High Court has noted that there was a delay in lodging the FIR. Prima facie the narration of facts in the earlier part of the judgment would indicate that on 14 February 2018 the appellant furnished a written intimation to the SHO at PS Jhalawar Sadar recording the unnatural death of his son who had travelled from New Delhi to Jhalawar upon the discovery of the body close to the railway tracks at around 8.30 pm. The initial intimation recorded that while there was no injury on the body the nails of the hands and feet of the deceased were found to have turned blue and the death had occurred in suspicious circumstances. It was on the basis of this statement that on 15 February 2018 an unnatural death was recorded under Section 174 of the CrPC. The post mortem report of 15 February 2018 indicates that the cause of death would be determined once histopathological examination of the viscera is concluded. The report dated 10 March 2018 of the Department of Pathology at the Jhalawar Medical College & SRG Hospital showed congestion in the lungs and pulmonary edema. On 12 April 2018 the FIR was registered at PS Jhalawar Sadar. The FIR contains specific allegations against the first respondent in respect of his proximity to the wife of the deceased the deceased having objected to the first respondent visiting their marital home and directing him to cease doing so andthe call data records and WhatsApp messages exchanged between the first respondent the deceased and the co accused Anita Meena. While the initial report of the FSL Jaipur dated 4 May 2018 was negative for metallic poison ethyl and methyl alcohol cyanide alkaloids barbiturates tranquillizers and insecticides the report dated 25 October 2018 indicates that the remnants of the viscera samples had tested positive for the presence of Ketamine an anesthetic drug. 13. Having analyzed prima facie the circumstances in which the offence was committed and the nature of the allegations it will be useful to refer to the precedents of this Court governing the grant of bail. A two judge Bench of this Court in Ram Govind Upadhyay v. Sudharshan Singh5 has listed the considerations that govern the grant of bail without attributing an exhaustive character to them. This Court has observed: “4. Apart from the above certain other which may be attributed to be relevant considerations may also be noticed at this juncture though however the same are only illustrative and not exhaustive neither there can be any. The considerations being: a) While granting bail the court has to keep in mind not only the nature of the accusations but the severity of the punishment if the accusation entails a conviction and the nature of evidence in support of the accusations. b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail. 53 SCC 598 While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge. d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution in the normal course of events the accused is entitled to an order of bail.” “3. Grant of bail though being a discretionary order but however calls for exercise of such a discretion in a judicious manner and not as a matter of course. Order for bail bereft of any cogent reason cannot be sustained.” This Court has further elucidated on the power of the court to interfere with an order of bail in the following terms: The above principles have been reiterated by a two judge Bench of this Court in Prasanta Kumar Sarkar v. Ashis Chatterjee6: “9. … It is trite that this Court does not normally interfere with an order passed by the High Court granting or rejecting bail to the accused. However it is equally incumbent upon the High Court to exercise its discretion judiciously cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that among other circumstances the factors to be borne in mind while considering an application for bail are: i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence ii) nature and gravity of the accusation iii) severity of the punishment in the event of conviction iv) danger of the accused absconding or fleeing if v) character behaviour means position and standing of released on bail the accused 614 SCC 496 likelihood of the offence being repeated vii) reasonable apprehension of the witnesses being viii) danger of course of justice being thwarted by grant influenced and of bail. internal citation omitted]” In Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana7 a two judge Bench of this Court of which one of us was a part has held that the High Court while granting bail must focus on the role of the accused in deciding the aspect of parity. This Court observed: “26.…The High Court has evidently misunderstood the central aspect of what is meant by parity. Parity while granting bail must focus upon the role of the accused. Merely observing that another accused who was granted bail was armed with a similar weapon is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established. In deciding the aspect of parity the role attached to the accused their position in relation to the incident and to the victims is of utmost importance. The High Court has proceeded on the basis of parity on a simplistic assessment as noted above which again cannot pass muster under the law.” 14. The High Court ought to have had due regard to the seriousness and gravity of the crime. The deceased was employed with the Intelligence Bureau in New Delhi. The first respondent is an employee of the Anti Corruption Bureau at Jhalawar. The material which has emerged during the course of investigation cannot simply be ignored or glossed over SCC 230 the likelihood of the evidence being tampered with and of the witnesses being suborned cannot be discounted. At this stage when the Court is called upon to evaluate whether a case for the grant of bail has been made out it is inappropriate to enter upon matters which would form the subject of the trial when evidence is adduced by the prosecution. Bail was granted to the co accused Anita Meena primarily and substantially on the ground that she had a child of eleven months with her in jail. This cannot be the basis to a claim of parity on the part of the first respondent. The first respondent cannot claim parity with the co accused since the allegations in the FIR and the material that has emerged from the investigation indicate that a major role has been attributed to him in the murder of the deceased. 15. For the above reasons we have come to the conclusion that the High Court was in error in allowing the application for bail. The consideration that twenty five witnesses out of seventy six witnesses had been examined must equally be weighed with the seriousness of the crime the role attributed to the first respondent and the likelihood of the evidence being tampered with if the first respondent were to remain on bail during the course of the trial. In this backdrop it was wholly inappropriate for the High Court to proceed on the surmise that the police had “developed a case” that Ketamine was administered after four months of the incident. 16. For the above reasons we allow the appeal and set aside the impugned order of the High Court dated 12 February 2021 enlarging the first respondent on bail. As a consequence the first respondent shall surrender forthwith and be taken into custody. 17. All observations in this judgment are for the purpose of the present case and will not have a bearing on the final outcome of the trial. 18. Pending application(s) if any stand disposed of. [BV Nagarathna] New Delhi September 27 2021.

Answer key is subject to judicial review only when it is “demonstrably wrong”: Delhi HC

There is always a presumption of correctness regarding the answer key of an exam held and it may be subject to judicial review only when it is “demonstrably wrong”. Therefore, it must be such as no reasonable body of men well-versed in the particular subject would regard it as correct. This remarkable judgement was passed by the division bench of the Delhi High Court, consisting of Justice Manmohan and Justice Sanjeev Narula in the matter of Shivnath Tripathi v The Registrar General High Court of Delhi & Anr., [W.P. (C) 7346/2020]. The petitioner in the present writ petition alleged that a few questions in the Delhi Higher Judiciary Service Preliminary Examination held in the month of February 2020. The questions pertained to the Prevention of Corruption Act, 1998, Indian Succession Act, 1925, Copyright Act and a question pertaining to IPC. The petitioner further alleged that the lack of response from the respondent’s by way of processing the petitioner’s answer key has caused him injustice. Further, the petitioner also alleged that the respondent had no reason for not modifying or deleting the answers provided by them. The court ordered the petitioner to file the present writ petition before the Examination-cum-Judicial Education and Training Programme Committee of Hon’ble Judges. The division bench of the Delhi High Court opined that, “This Court is of the view that the petitioner has sought to reap the benefit of the observations of this Court in Sumit Kumar vs High Court of Delhi, [2016 SCC OnLine Del 2818] without actually following the standard/test of judicial review discussed there under. The Division Bench of this Court in the aforesaid judgment, after discussing several judgments of the Supreme Court on the same matter, held that a candidate could not be penalised for answers at variance with the key only if the answer key was proven to be incorrect beyond doubt. However, it is relevant to note that according to the said judgment, an answer key cannot be disregarded as being incorrect merely on a doubt. The Court had reiterated the settled law that there is always a presumption of correctness regarding the answer key and it may be subject to judicial review only when it is “demonstrably wrong” i.e. it must be such as no reasonable body of men well-versed in the particular subject would regard it as correct. In the present case, the Examination-cum-Judicial Education and Training Programme Committee has considered the queries raised by the petitioner at length and given detailed reasons as to why the impugned answer key is the single, objective, correct answer of the four options provided in the exam. In our view, there is no other answer that can possibly be “correct”.

IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.7346 2020 SHIVNATH TRIPATHI THE REGISTRAR GENERAL HIGH COURT OF DELHI AND ANR. ..... Petitioner Petitioner in person. Through: Mr.Sanjoy Ghose Advocate with ...... Respondents Mr.Naman Jain Advocate and Mr.Manish Aggarwal JRThe petition has been heard by way of video conferencing. Present writ petition has been filed seeking directions to the respondents to modify answers to Question 7 Question 53 Question 78 and to delete Question 134 of the Delhi Higher Judiciary Service Preliminary Examination held on 2nd February 2020. The impugned questions and the correct answers in bold are reproduced hereinbelow: Q.7. ‘A’ is married and is having one child. A’s husband ‘B’ does not live with her. ‘C’ on false promise to marry ‘A’ makes physical W.PNo.7346 2020 relationship with her and later refused to marry. Penal Code. ‘C’ has committee the offence of rape. ‘C’ has not committed the offence of rape. ‘C’ has committed the offence of sexual assault. ‘C’ has committed the offence under Section 494 of Indian Q. 53 Company ‘A’ is the registered trademark holder of hte mark ‘VITE’ specifically in respect of pens. Company ‘B’ adopts the name ‘VITE’ in respect of ink. The adoption by company ‘B’ constitutes Passing of Both infringement and Passing off Neither infringement nor passing off” “Q.78. While sentencing the accused in an offence under the Prevention of Corruption Act 1998 the relevant criteria is Deterrence & Denunciation Both&None of the above” “Q.134. A Decision rendered in a proceeding under Section 372 Indian Succession Act 1925 is summary in nature does not finally decide the rights of the parties does not bar the trial of the same question in any other proceedings between the same parties All of above” Petitioner states that for question no.78 the correct answer should be option “(3)”. He submits that the Supreme Court in K. P. Singh vs. State of Delhi Criminal Appeal No. 1264 of 2015 No. 444 of 2015] while dealing with an offence punishable under Section 8 of the Prevention of Corruption Act took note of ‘reformative’ aspect of punishment and consequently according to him the punishment under Prevention of Corruption W.PNo.7346 2020 Act is reformatory as well. He relies upon the judgment of the Supreme Court in B.G. Goswami vs. Delhi Administration 3 SCC 85. Petitioner in person vehemently states that since there are two possible correct answers to question no. 78 the petitioner cannot be penalized. In support of his submission he relies upon the judgment of this Court in Sumit Kumar vs. High Court of Delhi and Anr. 2016 SCC OnLine Del 2818 wherein it has been held as under: “11. We have to apply the aforesaid standard or test when we examine the contentions of the two petitioners. In other words only when we are convinced that the answer key is “demonstrably wrong” in the opinion of a reasonable body of persons well versed with the subject will it be permissible to exercise power of judicial review. Albeit in cases where the answer key is indeed incorrect or more than one key to the answer could be correct the candidates should not be penalized for answers at variance with the key. The expression “demonstrably wrong” and the clapham omnibus standard or test on the second aspectis noticeably the corner stone of the said principle. While applying the said test the Court should keep in mind that the answer key should be presumed as correct and should not be treated as incorrect on mere doubt.” He further states that for question no.7 the correct answer should be option “(1)”. He submits that the question of rape or no rape cannot be decided on the given facts of the question as there may be different outcome of the case depending on age income economic status demographic status social status or education of a woman. In support of his submission he relies upon the judgments of the Supreme Court in Anurag Soni v. State of Chhatisgarh 2019) 13 SCC 1 and Pramod Suryabhyan Pawar v. State of Maharashtra & Anr. 9 SCC 608. W.PNo.7346 2020 7. As far as question no.53 is concerned he states that the correct answer should be “(1)” as mere registration of trade mark does not entitle a person to a remedy of passing off as it is not stated in the Question that plaintiff company had any reputation or goodwill. He states that question no.134 ought to be deleted because the proceeding under Section 372 of the Indian Succession Act 1925 is ‘summary’ according to Section 373 of the Indian Succession Act 1925. Petitioner submits that the inaction of the respondents in not processing petitioner’s objection to the answer key and subsequent notices have caused grave injustice to the petitioner. He further submits that no reason has been assigned for not modifying or deleting the answers provided by respondents. 10. This Court vide order dated 22nd October 2020 had directed the present writ petition to be placed before the Examination cum Judicial Education and Training Programme Committee of Hon’ble Judges and its comments minutes were required to be placed before this Court. In pursuance to the said order the learned counsel for the respondent has placed on record the minutes of the meeting of Examination cum Judicial Education and Training Programme Committee held on 19 November 2020 whereby the comments of the petitioner in respect of four impugned questions have been considered and the Committee has opined as under: To consider The Committee has gone Answer keys and also perused the comments of the Examiners in respect of all the four questions challenged by the petitioner in the writ petition. The view of the Committee is W.PNo.7346 2020 challenged by Mr. Shivnath Tripathi in W.P. No. Tripathi vs. The General Court of Delhi & as under: Q.7. ‘A’ is married and is having one child. A’s husband ‘B’ does not live with her. ‘C’ on false promise to marry ‘A’ makes physical relationship with her and later refused to marry. 1) ‘C’ has committee the offence of rape. 2) ‘C’ has not committed the offence of 3) ‘C’ has committed the offence of sexual 4) ‘C’ has committed the offence under Section 494 of Indian Penal Code. As per answer key the correct answer is 2). The Committee is of the opinion that this is the correct option. The prosecutrix is only ‘separated’ and not ‘divorced’ and an inducement of marriage can only be made to an unmarried or divorced person. Here the prosecutrix still maintains her status as a married person. This follows from the decision of Supreme Court in Prashant Bharti v. State9 SCC 293 where it was held as under: irrefutable evidence that during the dates under reference for a period of more than one year and eight W.PNo.7346 2020 by her thereafter remained married to Lalji Porwal. fact situation In such a complainant prosecutrix that the appellant accused had physical relations with assurance that he would marry her false and as such is per se unacceptable. She more anybody else was clearly aware of that fact that she had a subsisting valid marriage with Lalji Porwal. Accordingly question of anyone being in a position to induce her into a physical relationship under an assurance of marriage... there was The decisions of Anurag Soni v. State of Chhatisgarh reported as 13 SCC 1 and Pramod Suryabhyan Pawar v. State of Maharashtra & Anr. reported as9 SCC 608 are not applicable in this case as the issue of ‘promise to marry’ in relation to a ‘subsisting marriage’ was not before the court. “Q. 53 Company ‘A’ is the registered trademark holder of the mark ‘VITE’ specifically in respect of pens. Company ‘B’ adopts the name ‘VITE’ in respect of ink. The adoption by company 1) Infringement 2) Passing of W.PNo.7346 2020 Both infringement and Passing off 4) Neither infringement nor passing off” As per answer key the correct answer is 3). The Committee is of the opinion that this is the correct option. The reasoning for the same is given below. The registered trademark of the company is ‘VITE’ for Pens. Under Section 29(2)(a) of the Trade Marks Act 1999 if the mark used by B is identical to the registered trademark and the goods and services are similar then the same could constitute infringement. Pens and ink are similar goods as these are cognate and allied. They are sold via the same trade channels and the class of customers is also identical. The use by B for mark ‘VITE’ for ink would also constitute passing off of A’s goods as those of B. Use by B of the mark ‘VITE’ could cause damage to A’s reputation as also A’s business and goodwill. The various pre conditions for passing off would also be satisfied in terms of the judgment in Cadila Healthcare Ltd v. Cadila Pharmaceuticals Ltd. 2001 PTC 300(SC) and in several other decisions both of the Supreme Court and the High Court. “Q.78. While sentencing the accused in an Corruption Act 1998 the relevant criteria is the Prevention W.PNo.7346 2020 Reformation 2) Deterrence & Denunciation 3) Both&4) None of the above” As per answer key the correct answer is 2). The Committee is of the opinion that this is the correct option. In Shanti Lal Meena v. State of reported as 6 SCC 185 where in a case under POC Act after considering the principles of sentencing policy and past precedents the Supreme Courtheld as under: loses his “20. As far as punishment for offences under the PC Act is concerned we do not think that there is any serious scope for reforming the convicted public servant. The moment he convicted he Hence there is no significance to the theory of reformation of his conduct in public service. The only relevant object of denunciation and deterrence. That is the reason Parliament in such cases W.PNo.7346 2020 So far as decision in K.P. Singh v. State reported as15 SCC NCT of Delhi 497 is concerned although the view of V. Gopala Gowda J. does not refer to sentencing policy but the concurring view of T.S. Thakur J. refers to it in following words: “10. Determining the adequacy of sentence to be awarded in a given case is not an easy task just as evolving a uniform sentencing policy is a tough call. That is because the quantum of sentence that may be awarded depends upon a variety of including mitigating circumstance peculiar to a given case. The Courts generally enjoy the matter of the quantum of sentence. In doing so the courts degrees by deterrent and punitive aspects of punishment conclusion of the trial and legal proceedings accused condition offence the weapon used and in the cases of illegal gratification the amount of bribe loss of job accused are also some of the heavily with the Courts while the nature of the age of W.PNo.7346 2020 determining the sentence to be awarded. The Courts have not the considerations that go into determination of the quantum of sentence not have the Courts attempted to lay down the weight that each one of these considerations carry. That because any such exercise is neither easy nor advisable given the myriad situations in which the question may speaking recognised the factors mentioned earlier as being relevant to the question of determining sentence. Decisions of this Court on the subject are a legion. Reference to some only should however suffice.” The above is a generalised view of the parameters involved in award of sentence in a criminal case. The sentence was not reduced on the aspect of reformation but on other aspects including period of trial bribe amount and undergone sentence. The decision in B.G. Goswami v. Delhi Administration reported as 3 SCC 85 was again a decision of a “Two Judge in a “Q.134. A Decision proceeding under Section 372 Indian Succession Act 1925 W.PNo.7346 2020 is summary in nature 2) does not finally decide the rights of the 3) does not bar the trial of the same in any other proceedings between the same parties 4) All of the above” As per the answer key the correct answer is 4).The Committee is of the opinion that this is the correct option. The reasoning for the same is set out below: Proceedings under Section 372 of the Indian Succession Act 1925 for grant of succession certificate is not for the purpose of adjudication of any claims between the legal heirs. Such application is made under Section 372. A succession certificate cannot be granted in respect of any debt or security letters of administration or for which probate is required. Under Section 373 the proceedings are summary in nature. If there are any questions of fact and law which are intricate and difficult to determine the District Judge only takes a prima facie view as to which person has the best title. Since the proceedings are summary in nature Section 387 specifically stipulates that there would be no bar to conduct a trial on the same question in any suit or proceedings between the same parties. Thus the correct answer isi.e. All of the above. W.PNo.7346 2020 in a Case Law Section 372 Proceedings for grant of Succession Certificate Grant of certificate of any decision made in such proceedings will not bar any party to the proceeding to raise same issue in a subsequent suit. Madhvi Amma Bhawani Amma and Ors. Vs. Kunjikutty Pillai Meenakshi Pillai and Ors C.A. No. 1544 of 1990 Decided On: 27.04.2000 paras 13 16 19] This sub section reveals two things first adjudication proceedings and secondly if the question of law and fact are intricate or difficult it could still grant the said certificate based on his prima facie title. In other words the grant of certificate under it is only a determination of prima facie title. This as a necessary corollary confirms that it is not a final decision between the parties. So it cannot be construed that mere grant of such proceedings would constitute to be a decision on an finally decided between the parties. This leaves no room for doubt. Thus any adjudication made under Part X of this Act which includes Section 373 does not bar the same question being raised between the same parties in any subsequent suit or So we have no doubt to hold that any decision made in the proceeding under W.PNo.7346 2020 Section 372 for the grant of Succession Certificate under the Indian Succession Act would not bar any party to the said proceedings to raise the same issue in a subsequent suit. Joginder Pal Vs. Indian Red Cross Society and Ors. C.A. No. 5664 of 2000 Arising out of SLP No. 17208 of 1999) Decided On: 29.09.2000] These Sections 387 Indian Succession Act 1925] make it clear that the for grant of certificate are summary in nature and that no rights are finally decided in such proceedings. Section 387 puts the matter beyond any doubt. It categorically provides that no decision under Part X upon any question of right between the parties shall be held to bar the trial of the same question in any suit or any other proceeding between the same parties. Thus Section 387 permits the filing of a suit or other proceeding even though a succession certificate might have been granted. In view of the above the Committee is of the opinion that all the aforesaid four questions have been correctly framed and answer keys provided thereto are also correct. Registry is directed to place these Minutes on record before the Court. 12. Having heard the parties this Court is of the view that it is essential to outline the scope of Court interference with the results of an examination. The W.PNo.7346 2020 Supreme Court in Ran Vijay Singh & Ors. vs. State of Uttar Pradesh & Ors. 2018) 2 SCC 357 while discussing the law regarding judicial interference with the results of an examination has held as under: in Mukesh Thakur6 SCC 759 : 2 SCC L&S) 286 : 3 SCEC 713] nor has it been suggested in any other decision of this Court—the case law developed over the years admits of interference in the results of an examination but in rare and exceptional situations and to a very limited extent. 30. The law on the subject is therefore quite clear and we only propose to highlight a few significant conclusions. They are: 30.1. If a statute Rule or Regulation governing an examination permits the re evaluation of an answer sheet or scrutiny of an answer sheet as a matter of right then the authority conducting the examination may permit it 30.2. If a statute Rule or Regulation governing an examination does not permit re evaluation or scrutiny of an answer sheet then the court may permit re evaluation or scrutiny only if it is demonstrated very clearly without any “inferential process of reasoning or by a process of rationalisation” and only in rare or exceptional cases that a material error has been committed 30.3. The court should not at all re evaluate or scrutinise the answer sheets of a candidate—it has no expertise in the matter and academic matters are best left to academics 30.4. The court should presume the correctness of the key answers and proceed on that assumption and W.PNo.7346 2020 30.5. In the event of a doubt the benefit should go to the examination authority rather than to the candidate emphasis supplied) 13. This Court is of the view that the petitioner has sought to reap the benefit of the observations of this Court in Sumit Kumar vs High Court of Delhiwithout actually following the standard test of judicial review discussed 14. The Division Bench of this Court in the aforesaid judgment after discussing several judgments of the Supreme Court on the same matter held that a candidate could not be penalized for answers at variance with the key only if the answer key was proven to be incorrect beyond doubt. However it is relevant to note that according to the said judgment an answer key cannot be disregarded as being incorrect merely on a doubt. The Court had reiterated the settled law that there is always a presumption of correctness regarding the answer key and it may be subject to judicial review only when it is “demonstrably wrong” i.e. it must be such as no reasonable body of men well versed in the particular subject would In another case being High Court of Tripura vs. Tirtha Sarathi Mukherjee 16 SCC 663 the Supreme Court has held as under: regard it as correct. this Court judgment of “23. ....... Even in Ran Vijay Singh v. Rahul Singh2 SCC 357 which according to the first respondent forms the basis of the High Court s interference though does not expressly stated so what the Court has laid down is that the Court may permit re valuation inter alia only if it is demonstrated very clearly without any inferential process of reasoning or by a process of rationalisation and only in rare or exceptional cases on the commission of material error. ......” emphasis supplied) W.PNo.7346 2020 16. In the present case the Examination cum Judicial Education and Training Programme Committee has considered the queries raised by the petitioner at length and given detailed reasons as to why the impugned answer key is the single objective correct answer of the four options provided in the exam. In our view there is no other answer that can possibly be “correct”. 17. This Court is also in complete agreement with the opinion and reasons given by the Committee in its minutes of meeting dated 19th November 2020. The Committee has rightly concluded that the impugned questions have been correctly framed and answer keys provided thereto are also correct. 18. The petitioner herein has based his arguments on mere conjectures and has failed to elucidate even a single valid ground to challenge the reasoning given by the Committee. Therefore the petitioner has failed to demonstrate that the impugned questions and answer keys are inherently incorrect or manifest injustice has occurred in the present case. 19. Keeping in view the aforesaid factual and legal scenario this Court finds no ground to interfere with the decision of the Committee as there is no evidence of commission of any material error in the present case. 20. Consequently the present writ petition being bereft of merit is dismissed. 21. The order be uploaded on the website forthwith. Copy of the order be also forwarded to the learned counsel through e mail. MANMOHAN J SANJEEV NARULA J NOVEMBER 27 2020 W.PNo.7346 2020

The Writ of Habeus Corpus denied to the Wife on the grounds that the Husband was not illegally detained: The High Court of Chhattisgarh

The writ of Habeus corpus is provided in the constitution in Article 226. The definition of habeas corpus has not been in the constitution but has been interpreted in zillions of different cases in India. The literal meaning of habeas corpus is “you shall have the body”. Mr Amit Kumar Pandey has not been allowed for this writ as he had not been illegally and unauthorizedly detained provided in the case, Smt. Astha Pandey v. State of Chhattisgarh & Ors.[WPHC/13/2021] through the division bench led by Mr Justice Arup Kumar Goswami and Mr Justice Sanjay K. Agarwal in the High Court of Chhattisgarh. The facts of case are Shri Amit Kumar Pandey has been produced before this Court though this Court has not directed for his production. The petitioner was seeking directions to the respondents to free her husband from the crutches of respondents stating enter earlier that she has married Shri Amit Kumar Pandey but the respondents have illegally detained him without the authority of law. The petitioner in person had submitted that Shri Amit Kumar Pandey was her legally wedded husband and has been detained unauthorisedly and without the authority of law by respondents specifically No. 5 to 7. The petitioner argued that the husband was willing to stay with her and she wanted to continue his treatment as he was unwell. But the petitioner wants to stay with him. Shri Amit Kumar Pandey was present in the court and he submitted that though he was married to the petitioner but due to some objectionable behaviour read by the petitioner he was not ready and willing to stay with the petitioner and wanted to stay with his parents. He clearly stated that he was not willing to meet his wife, the petitioner. He submitted that he is staying with his parents out of his free will and there is no pressure or force applied by the respondent No. 5 to 7 to stay with them as was submitted by the petitioner. The High Court decided that “We are of the considered opinion that it is not the case where Shri Amit Kumar Pandey has been illegally and unauthorizedly detained by respondents No.5 to 7 and we hereby close the present Habeas Corpus petition accordingly. However, the petitioner is at liberty to avail other remedies available under the law for redressal of her grievances, if any. It is also made clear that we have not expressed any opinion on rights of the parties.” The court closed the writ petition accordingly.

HIGH COURT OF CHHATTISGARH BILASPUR WPHC No. 121 Smt.Astha Pandey W o Amit Kumar Pandey Aged about 26 years R o Gouri Ganesh Vihar Mungeli Road Bilaspur District BilaspurPetitioner State of Chhattisgarh Through The Secretary Department of Home Affairs Atal Nagar Naya Raipur Raipur District RaipurThe Station House Officer Civil Lines Bilaspur District BilaspurSmt.Laxmi Pandey W o Late Kishore Pandey Aged about 58 years Abhijeet Pandey S o Late Kishore Pandey Aged about 33 years Abhishek Pandey S o Late Kishore Pandey Aged about 31 years Respondent No.5 to 7 R o Shubham Vihar Beside Babji Residency Mungeli Road Bilaspur District BilaspurCause title taken from Case Information System Respondents Shri Arun Barik Advocate with Petitioner Smt.Astha Pandey For Respondents No. 1 to 4 Shri Siddharth Shukla Deputy Government Advocate For Respondents No.5 to 7 Shri Sandeep Shrivastava Advocate Hon ble Shri Arup Kumar Goswami Chief Justice Hon ble Shri Sanjay K. Agrawal Judge Order on Board Per Sanjay K. Agrawal Judge Shri Amit Kumar Pandey aged about 35 years has been produced before this Court though this Court has not directed for his production. His presence is marked. This writ petition has been preferred by the petitioner seeking direction to respondents No.5 to 7 to free her husband from clutches of respondents No.5 to 7 stating inter alia that she has married Shri Amit Kumar Pandey on 19.5.2020 but respondents No.5 to 7 have illegally detained him without authority of law. When the matter is taken up today for consideration petitioner Smt.Astha Pandey in person would submit that Shri Amit Kumar Pandeyis her legally wedded husband and he has been detained unauthorizedly and without authority of law by respondents No.5 to 7 He is willing to stay with her and she is continuing his treatment with Dr.Prakash Narayan Shrivastava Psychiatrist at Raipur as he is unwell. She is willing to meet him and wants to stay with him. Therefore appropriate direction for releasing him from clutches of respondents No.5 to 7 be given. As noticed herein above since Shri Amit Kumar Pandey is present in the Court and on being asked he submits that though he is married with the petitioner on 19.5.2020 but on account of some objectionable behaviour made by the petitioner he is not ready and willing to stay with the petitioner and he wanted to stay with his parents. On being asked whether he is ready and willing to meet with his wife petitioner present in the Court he clearly states that he is not willing to meet his wife Smt.Astha Pandey. Shri Amit Kumar Pandey further submits that out of his own volition and because of objectionable behaviour of the petitioner he has gone to stay with his parents and as such he is staying with his parents out of his free will and there is no pressure or force applied by respondents No.5 to 7 to stay with them We have heard Shri Ajay Barik learned Counsel for the petitioner Also heard Shri Siddharth Dubey learned Deputy Government Advocate appearing for respondents No. 1 to 4 Shri Sandeep Shrivastava learned Counsel appearing for respondents No.5 to 7 and petitioner Smt.Astha Pandey in person and Shri Amit Kumar Pandey in person. After having heard learned counsel for the parties and petitioner Smt.Astha Pandey in person and Shri Amit Kumar Pandey in person and considering that both are majors and further considering the nature of dispute between them we are of the considered opinion that it is not the case where Shri Amit Kumar Pandey has been illegally and unauthorizedly detained by respondents No.5 to 7 and we hereby close the present Habeas Corpus petition accordingly. However the petitioner is at liberty to avail other remedies available under the law for redressal of her grievances if any. It is also made clear that we have not expressed any opinion on rights of the parties. Sd Sd (Sanjay K. Agrawal Chief Justice Judge S Sd Sd Bablu

Section 12 of Employee’s Compensation Act imposes the liability of payment of compensation on the principal: The High Court of Delhi

If a person suffers an accident during the course of his employment while undertaking an activity concerned with the same, the employer of the aggrieved person is liable to compensate his employee after taking into consideration several factors including the age, the minimum wages and the disability certificate issued by a competent authority. The aforementioned has been upheld by the Delhi High court in the case of M/S Anshul Traders v. The Commissioner, Labour Welfare Centre and Anr. [FAO 193/2019 & CM APPLs.17224/2019, 43531/2019, 26992/2020 & 30265/2020] which was decided by the single judge bench comprising Justice J.R. Midha on 18th June 2021. The facts of the case are as follows. Ram Krishan, a labourer, aged 22, employed under Anshul Traders and was posted on a truck. In 2016, when he was driving the vehicle, the upper portion of the goods loaded on the vehicle came in contact with transmission line of the electricity department due to which he was electrocuted and he suffered injuries on the right leg and his right shoulder and his right leg was amputated; he was employed on the vehicle and the accident arose out of and during the course of his employment; he suffered 100% disability and claimed compensation for permanent disablement along with interest @12% per annum from the date of accident till realization and penalty to the extent of 50%.  Ram Kishan filed an application dated 29th January, 2018 under Order I Rule 10 read with Order VI Rule 17 of Code of Civil Procedure to implead the registered owner of the vehicle, namely Gagan and United India Insurance Company Ltd. as respondents No.2 and 3. However, this petition was dismissed and he was awarded a compensation of Rs. 7,11,614/- The Commissioner, Employee’s Compensation further awarded penalty on Anshul Traders to pay an amount equal to 10% of the principal amount of compensation, i.e. Rs.71,161/-. This order was challenged by the appellant in the instant appeal. Learned counsel for Anshul Traders urged at the time of the hearing that the offending vehicle bearing No. HR-55-F-6511 was validly insured with United India Insurance Company Ltd. and therefore, the liability to pay the compensation is of United India Insurance Company Ltd. under the policy. Ram Kishan has also challenged the order dated 12th October, 2018 on various grounds inter-alia that the Commissioner, Employee’s Compensation took the permanent disability as 70% whereas it should have been taken as 100% and the penalty of 10% be enhanced to 50%. After a perusal of the facts and arguments the court was of the opinion that “Ram Kishan has been rightly compensation as Anshul himself admitted the accident and employment of Ram Kishan In that view of the matter, this Court upholds the impugned order dated 12th October, 2018 insofar as the Commissioner, Employee’s Compensation has awarded the compensation of Rs.7,11,614/- along with simple interest @ 12% per annum from 23rd June, 2016 and penalty of 10%.” It also remanded the case back to the Commissioner to adjudicate upon the matter of the validity of the insurance claim and penalty being 50%.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 18th June 2021 FAO 193 2019 & CM APPLs.17224 2019 43531 2019 26992 2020 & 30265 2020 M S ANSHUL TRADERS Appellant Through: Mr. Raghu Vasishth Advocate THE COMMISSIONER LABOUR WELFARE CENTRE AND ANR. Respondents Through: Mr. R.K. Nain Advocate for respondent No.3 FAO 446 2019 & CM APPLs.49425 2019 & 49426 2019 RAM KISHAN Through: Mr. R.K. Nain Advocate Appellant M S ANSHUL TRADERS & ORS Respondents Through: Mr. Raghu Vasishth Advocate HON BLE MR. JUSTICE J.R. MIDHA JUDGMENT Ram Kishan filed an application for compensation before the Commissioner Employee’s Compensation against Anshul Traders claiming compensation on the averments that Ram Kishan was employed as a labourer with Anshul Traders and he was posted on the truck bearing registration No.HR 55 F 6511 he was aged 22 FAO 193 2019 & FAO 446 2019 Digitally SignedBy:RAJENDER SINGHKARKISigning Date:19.06.202113:31:45Signature Not Verified years and was drawing wages of Rs.10 000 per month including allowances on the night of 23rd 24th May 2016 he was on duty on the aforesaid vehicle when the vehicle reached Capital Market Shamli Road Panipat at about 10.00 P.M. the upper portion of the goods loaded on the vehicle came in contact with transmission line of the electricity department due to which he was electrocuted and he suffered injuries on the right leg and his right shoulder and he was taken to the Government Hospital Panipat where his right leg was amputated he was employed on the vehicle and the accident arose out of and during the course of his employment he suffered 100% disability and claimed compensation for permanent disablement along with interest @12% per annum from the date of accident till realization and penalty to the extent of 50%. Anshul Traders filed the written statement on 15th January 2018 in which they stated that Anshul Traders offered to bear the expenditure of Ram Kishan’s treatment at Muzaffarnagar but Ram Kishan repeatedly denied the same Ram Kishan voluntarily admitted his responsibility to bear all the repercussions of the injury caused Ram Kishan accepted Rs 37 000 from Anshul Traders and signed an undertaking that in future he would not raise any concern regarding payment of compensation and the liability to pay the compensation if any is of the Insurance Company with which the vehicle was insured. Ram Kishan filed an application dated 29th January 2018 under Order I Rule 10 read with Order VI Rule 17 of Code of Civil Procedure to implead the registered owner of the vehicle namely FAO 193 2019 & FAO 446 2019 Digitally SignedBy:RAJENDER SINGHKARKISigning Date:19.06.202113:31:45Signature Not Verified No.2 and 3. Gagan and United India Insurance Company Ltd. as respondents Vide order dated 08th March 2018 the application dated 29th January 2018 of Ram Kishan under Order I Rule 10 read with Order VI Rule 17 of Code of Civil Procedure to implead the registered owner of the vehicle as well as the insurance company as respondents No.2 and 3 was dismissed. The dismissal of the application has been recorded in the impugned award which is reproduced as followed: “6.The claimant filed amended memo of parties along with amended claim and application dated 29.01.2018 under Order 1 Rule 10 read with order VI Rule 17 CPC to implead the registered owner of the vehicle and Insurance Company as respondent no.2 &3 in the array of The claimant has stated in the application that in the original file an application Sh. Anshul M s. Anshul Traders was impleaded as R 1 and respondent no.1 has filed his W.S. along with insurance policy of the vehicle bearing no. HR 55 F 6511 as per which Sh.Gagan S o Sh.Diwan Chand R o H.No. 1693 Sector 12 HUDA Panipat Haryana was the registered owner insured of the vehicle on which the injured was employed as a labourer for loading and unloading of the vehicle and thus necessary amendment in the claim has been made and R 2 Sh. Gagan and R 3 Insurance Company be impleaded in the array of respondents. 7. On 08.03.2018 the application dated 29.01.2018 of claimant to implead registered owner of the vehicle and insurance company as R 2 and R 3 was dismissed since respondent i.e. Sh. Anshul M s. Anshul Traders had admitted that claimant was not his regular employee but was a daily wage earner and was an employee of a contractor in the statement recorded on the very first date FAO 193 2019 & FAO 446 2019 Digitally SignedBy:RAJENDER SINGHKARKISigning Date:19.06.202113:31:45Signature Not Verified of his appearance and in his written statement. Respondent was covered under the definition of principal employer since Section 12 of E.C. Act imposes the liability of payment of compensation on the principal with right to recover the same from the contractor in respect of work been carried out by the contractor. 8. The respondent Sh. Anshul Proprietor of M s. Anshul Traders filed a copy of insurance policy of the vehicle with his reply but on perusal it was seen that Sh.Gagan S o Sh.Diwan Chand was the insured and not Sh. Anshul i.e. Proprietor of M s. Anshul Traders. It was very much clear that when the claimant came to know that Sh.Gagan was the policyholder of the vehicle and not his employer Sh. Anshul Proprietor of M s. Anshul Traders he immediately put in an application for amending the claim application accordingly in which he stated that the claimant was employed as labourer with respondent no.1 and posted on vehicle owned by respondent no.2 which is clearly an afterthought. The claim has been tried to be amended in a way so that the compensation liability entirely shifts to insurance company. Respondent Sh. Anshul had no documentary evidence to who the role of Sh. Gagan insured owner of the vehicle in M s. Anshul Traders which is a Proprietorship firm. In absence of any employment documents documentary evidence proving Sh. Gagan to be the employer and admittance of employment by respondent Sh. Anshul Proprietor of M s. Anshul Traders in his W.S. as well as by claimant in his claim the application of claimant to amend the claim was dismissed and the matter was fixed for filing of the rejoinder. ” The Commissioner Employee’s Compensation held that there was an employer employee relationship between Ram Kishan and Anshul Traders at the time of accident and Ram Kishan was entitled to the compensation. The Commissioner Employee’s Compensation computed the compensation of Rs.7 11 614 on the basis of the age FAO 193 2019 & FAO 446 2019 Digitally SignedBy:RAJENDER SINGHKARKISigning Date:19.06.202113:31:45Signature Not Verified of Ram Kishan i.e. 22 years the relevant applicable factor of 221.37 wages of Rs. 8 000 per month and disability was taken as 70% according to the disability certificate issued by the Disability Board Aruna Asaf Ali Hospital Delhi. The Commissioner awarded simple interest @ 12% p.a. from 23rd June 2016 till the date of deposit of the amount. The Commissioner Employee’s Compensation awarded penalty on Anshul Traders to pay an amount equal to 10% of the principal amount of compensation i.e. Rs.71 161 under Section 4A(3) Employee’s Compensation Act. Anshul Traders filed a writ petition W.P.(C) 3754 2019 which was subsequently converted into an appeal under Section 30 of the Employee’s Compensation Act and re numbered as FAO 193 2019. Vide order dated 11th April 2019 Ram Kishan was impleaded as respondent no.3. Vide order dated 09th August 2019 this Court impleaded the registered owner Gagan as appellant No.2 and United India Insurance Company Ltd. as respondent No.4 in FAO 193 2019. Anshul Traders has challenged the order of the Commissioner Employee’s Compensation on various grounds inter alia that the order dated 12th October 2018 passed by the Commissioner Employee’s Compensation was not received by him Respondent No. 3 has not placed any evidence on record pertaining to his employment with the appellant that the date of payment of compensation should have been 12th October 2018 and not 23rd June 2016 Respondent No. 3 had placed two different Voter ID FAO 193 2019 & FAO 446 2019 Digitally SignedBy:RAJENDER SINGHKARKISigning Date:19.06.202113:31:45Signature Not Verified cards on record that the vehicle was in the name of Gagan and was insured and the registered owner and the insurance company were necessary and proper parties before Commissioner Employee’s Compensation. Learned counsel for Anshul Traders urged at the time of the hearing that the offending vehicle bearing No. HR 55 F 6511 was validly insured with United India Insurance Company Ltd. and therefore the liability to pay the compensation is of United India Insurance Company Ltd. under the policy. 10. Ram Kishan has also challenged the order dated 12th October 2018 on various grounds inter alia the Commissioner Employee’s Compensation took the permanent disability as 70% whereas it should have been taken as 100% and the penalty of 10% be enhanced to 50%. 11. Vide order dated 11th April 2019 the proprietor of the petitioner undertook to deposit Rs 2 00 000 with the Registrar General of this Court within three weeks and the balance award amount within three months. 12. On 03rd May 2019 Anshul Traders deposited Rs.2 00 000 by demand draft dated 01st May 2019 and Rs.5 11 614 by demand draft dated 06th July 2019 with this Court. 13. On careful consideration of the contentions of the parties this Court is of the view that the Ram Kishan has been rightly compensation as Anshul himself admitted the accident and employment of Ram Kishan when he appeared in person before Commissioner Employee’s Compensation on 13th November 2017 FAO 193 2019 & FAO 446 2019 Digitally SignedBy:RAJENDER SINGHKARKISigning Date:19.06.202113:31:45Signature Not Verified and secondly Anshul admitted having paid Rs.37 000 to Ram Kishan. So far as the appeal of Ram Kishan is concerned this Court is of the view that there is no infirmity in assessing the permanent disability of Ram Kishan as 70%. In that view of the matter this Court upholds the impugned order dated 12th October 2018 insofar as the Commissioner Employee’s Compensation has awarded the compensation of Rs.7 11 614 along with simple interest @ 12% per annum from 23rd June 2016 and penalty of 10%. The issue of valid insurance and claim of penalty of 50% have not been adjudicated by the Commissioner Employee’s Compensation and therefore the matter is remanded back to the Commissioner Employee’s Compensation to adjudicate only on the following two issues namely: 1) Whether the offending vehicle bearing No. HR 55 F 6511 was validly insured by United India Insurance Company Ltd. If so whether United India Insurance Company Ltd. is liable to reimburse the compensation amount interest and penalty to Ram Kishan Onus of proof on Anshul Traders and Gagan. 2) Whether Ram Kishan is entitled to penalty of 50% of the compensation amount Onus of proof on Ram Kishan. 16. Gagan and United India Insurance Company Ltd. are impleaded as respondent No.2 and 3 in the proceedings before the Commissioner Employee’s Compensation. The Commissioner Employee’s Compensation shall afford an opportunity to all the FAO 193 2019 & FAO 446 2019 Digitally SignedBy:RAJENDER SINGHKARKISigning Date:19.06.202113:31:45Signature Not Verified parties to lead evidence with respect to the aforesaid issues. 17. After recording the evidence the Commissioner Employee’s Compensation shall adjudicate the aforesaid issues. If Issue No.1 is decided in favour of Anshul Traders the Commissioner Employee’s Compensation shall direct United India Insurance Company Ltd. to reimburse such amount as is determined to be the liability of United India Insurance Company Ltd. With respect to Issue No.2 the Commissioner Employee’s Compensation shall adjudicate whether any enhancement of penalty is warranted and if so who would be liable to pay the enhanced penalty amount to Ram Kishan. 18. Since the compensation of Rs.7 11 614 along with simple interest @ 12% p.a. from 23rd June 2016 till the date of deposit and penalty of 10% is upheld the Registrar General is directed to release the amount deposited by the Anshul Traders to Ram Kishan by instructing UCO Bank Delhi High Court Branch as under: Rs.6 lakh be kept in 40 FDRs of Rs.15 000 each in the name of Ram Kishan for the period 1 month to 40 months respectively with cumulative interest. The balance amount after keeping Rs.6 lakh in FDR be released to Ram Kishan by transferring the same to his savings bank account No. 38730613630 with State Bank of India Rohini Sector 24 Delhi. iii) All the original FDRs shall remain with UCO Bank Delhi High Court Branch. However the statement containing FDR number amount date of maturity and maturity amount shall be furnished to Ram Kishan. FAO 193 2019 & FAO 446 2019 Digitally SignedBy:RAJENDER SINGHKARKISigning Date:19.06.202113:31:45Signature Not Verified iv) The maturity amounts of the aforesaid FDRs be released to Ram Kishan by transferring the same to his aforesaid savings bank account as mentioned above. v) No loan or advance or pre mature discharge shall be permitted without the permission of this Court. vi) State Bank of India shall permit Ram Kishan to withdraw money from his savings bank accounts by means of a 19. The Registrar General shall ensure the disbursement within withdrawal form. three weeks. 20. Both the appeals are disposed of in the above terms. Pending applications are also disposed of. 21. The record of Commissioner Employee’s Compensation be returned back along with the copy of this judgment. 22. All the parties shall appear before the Commissioner Employee’s Compensation on 15th July 2021. 23. The Commissioner Employee’s Compensation endeavour to decide the issues being remanded back by this Court within a period of four months from the first date of appearance of the parties. JUNE 18 2021 J.R. MIDHA J. FAO 193 2019 & FAO 446 2019 Digitally SignedBy:RAJENDER SINGHKARKISigning Date:19.06.202113:31:45Signature Not Verified

A statement under Section 313 of Cr.P.C. is not evidence but an explanation: High Court of Jharkhand

The Court was of the considered view that the prosecution was not able to prove the case beyond all reasonable doubt. Such an opinion was held by The Hon’ble High Court of Jharkhand before The Hon’ble Mrs. Justice Anubha Rawat Choudhary in the matter of Bhushan Mahto S/o Arjun Mahto and Anr Vs. The State of Jharkhand [Cr. Rev. No. 979 of 2012].  The facts of the case were associated with a criminal revision petition against a judgment passed by the learned Sessions Judge, Bokaro Camp at Tenughat dated 15.09.2012, wherein the petitioners were convicted for the charges under Section 47(a) of Excise Act. The counsel representing the petitioners contended that the impugned judgments were irrational and were unsustainable under the eyes of the law. It was also stated that five witnesses had deposed before the court out of 11 charge-sheeted witnesses. The counsel submitted that during such situations conviction of the petitioners must be set-aside. The trial court opined that even if the seized materials were not produced in the court, the same was not fatal to the prosecution case. The counsel also contended that the whole case rested upon the evidence of two police officers.  The counsel representing the State opposed the prayer and contended that the seizure witnesses who turned hostile, have not disputed their signature on the seizure list. The counsel stated that the impugned judgements did not call for any interference in revisional jurisdiction in the absence of any perversity and material irregularity. It was reported that upon checking a Maruti Van, the officers found a total of 10 cartons of wine. After investigation, a charge sheet was submitted against the petitioners for an offence under Section 414 IPC and 47(a) of the Excise Act. There was no material on record to show that the seized wine was stolen material as found out by the Trial Court, therefore offence under Section 414 of the Indian Penal Code was not made out.  Considering all submissions and facts The Hon’ble Court ruled out that “In view of the aforesaid facts and circumstances, the impugned judgements call for interference in revisional jurisdiction of this court in order to secure the ends of justice as the impugned judgements are perverse and suffer from material irregularity. Accordingly, the petitioners are entitled to benefit of doubt… This Criminal revision petition is accordingly allowed… The bailors are discharged of their liability under the bail bond.”

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Rev. No. 9712 1. Bhushan Mahto S o Arjun Mahto 2. Santosh Rajwar S o Late Raghunath Rajwar Both resident of Korambey P.O. & P.S. Gola District The State of Jharkhand … … Opposite Party … … CORAM :HON BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY Mr. Rahul Dev Advocate Mr. Bishwambhar Shastri A.P.P. For the Petitioner s For the State Through Video Conferencing Heard Mr. Rahul Dev learned counsel appearing on behalf of the petitioners. 2. Heard Mr. Bishwambhar Shastri learned A.P.P. appearing on behalf of the opposite party State. This criminal revision petition is directed against the judgement dated 15.09.2012 passed by the learned Sessions Judge Bokaro Camp at Tenughat in Cr. Appeal No. 111 whereby the conviction of the petitioners for offence under Section 47(a) of Excise Act has been sustained but the sentence has been modified and reduced to three months simple imprisonment and fine of Rs. 500 with default clause. The petitioners were convicted vide judgement of conviction and order of sentence both dated 10.02.2011 passed by learned A.C.J.M. Bermo at Tenughat in G.R. case No. 554 of 2007 corresponding to T.R. Case No. 145 of 2011 for offence under Section 47(a) of Excise Act. The learned counsel for the petitioners has submitted that the impugned judgements passed by the learned courts below are perverse and cannot be sustained in the eyes of law. He further submits that out of 11 charge sheeted witnesses only five have deposed before the learned court below and out of them two seizure witnesses i.e. P.W. 1 and P.W. 3 have turned hostile although they have identified their signature on the seizure list which were marked as Exhibit 1 and 1 1. P.W 2 was also declared hostile. The learned counsel also submitted that P.W. 4 was the informant of the case and was a police officer. He submits that neither the seized articles have been produced exhibited nor the chemical examination report has been produced exhibited before the learned court below. He submits that in such circumstances neither the seizure has been proved nor the contents of the seized articles have been proved to be wine. The entire case rests on the evidence of two police officers i.e. P.W. 4 and P.W. 5. He submits that although the investigating officer has stated that the seized wine was tested after investigation but the test report has not been exhibited. The learned counsel for the petitioners submits that in such circumstances the conviction and sentence of the petitioners be set aside. The learned counsel appearing on behalf of the opposite party State on the other hand has opposed the prayer and has submitted that the learned courts below have scrutinized the materials on record and have recorded concurrent findings regarding the offence committed by the petitioners. He submits that the seizure witnesses who turned hostile have not disputed their signature on the seizure list and the learned court below has considered this aspect of the matter and has recorded that generally the seizure witnesses become hostile because they do not want to take enmity with the accused persons of the locality and there is no evidence on record that the accused persons had any inimical relation with the informant and the police officers examined in the case as P.W. 4 and P.W. 5 who have fully supported the prosecution case regarding seizure of 10 cartoons of wine from the Maruti van in which they were travelling during the date and time of occurrence. The learned counsel submits that in absence of any perversity and there being no material irregularity the impugned judgements do not call for any interference in revisional jurisdiction. After hearing the learned counsel for the parties this Court finds that as per the prosecution case on 10.07.2007 at about 8 pm on the basis of secret information the informant sub inspector of police along with armed forces went to NH 23 at Petarbar and checked a Maruti van and found total 10 cartoons of wine. There were two persons in the van who are the petitioners before this Court. Upon asking they disclosed their name and on demanding paper they could not show any document justifying the possession of 10 cartoons of wine. Wine was seized by the informant in presence of independent witnesses namely P.W. 1 and P.W. 3. After investigation charge sheet was submitted against the petitioners for offence under Section 414 IPC and 47(a) of the Excise Act and cognizance of offence was also taken under the same sections. During trial altogether five witnesses were examined. P.Ws. 1 2 and 3 were declared hostile by the prosecution. However P.W. 1 and 3 identified their signature on the seizure list which were marked as Exhibit 1 and 1 1 respectively. So far as P.W. 4 the informant of the case is concerned he has fully supported the prosecution case. He exhibited his written report as Exhibit 2. He also exhibited his signature and writing of the seizure list which were marked as Exhibit 3. During his cross examination he had stated that at the time of seizure he handed over the seized material to the officer in charge and had not inspected the materials kept inside the cartoons. He also stated that the seized materials were sealed at the time of their seizure. P.W. 5 is the investigating officer of the case. He has also supported the prosecution case. He had submitted charge sheet on 31.08.2007 under Section 414 of Indian Penal Code and under Section 47(a) of the Excise Act. He has identified the place of occurrence and has also stated that he had recorded the statement of the seizure witnesses who had supported the prosecution case. He has also deposed that upon seeing the police the petitioners jumped and tried to run away from the vehicle and were arrested by the police and upon checking 10 cartoons of wine were recovered. He has also stated that there were other witnesses who were police officials and who had given the statement in support of the prosecution case. However these witnesses have not been examined by the prosecution before the learned court below. Although the investigating officer of the case has recorded that the seized wines were got tested and after investigation he submitted the charge sheet but admittedly neither the test report nor the seized materials have been exhibited before the learned court below. 10. The learned trial court considered the materials on record and recorded that the seizure list shows that wine was recovered from the vehicle and was seized. The learned trial court also noted that the seizure list contains the signature of the accused persons and the seizure witnesses have identified their signature. It further recorded that P.W. 3 had also stated that Maruti van was taken to the police station by the police. The trial court also recorded that generally in a case brought by police witnesses become hostile because they do not want to take enmity of the accused persons of the locality and there is no evidence on record regarding any inimical relationship of the accused persons with the informant and police officers examined as P.W. 4 and 5. The learned trial court also recorded that there was no doubt that although the seized materials were not produced before the learned court but the same per se is not fatal to the prosecution case as there was no occasion for the police official witnesses to bring false case against the accused persons. So far as the offence under Section 414 of Indian Penal Code was concerned the learned trial court found that there was no material on record to show that the seized wine was stolen material and accordingly offence under Section 414 of Indian Penal Code was not made out. The learned trial court convicted the petitioners only under Section 47(a) of the Excise Act. So far as the learned appellate court is concerned the appellate court also upheld the conviction for offence under Section 47(a) of the Excise Act and rejected the argument of the petitioners on the point that liquors seized were not chemically examined and accordingly it was not proved to be wine on the ground that P.Ws. 4 and 5 have consistently stated that the seized material was wine and the brand of the wine was also stated by them and that the accused persons have not denied in their statement under Section 313 that the seized material was liquor. 13. This Court is of the considered view that the reasoning given by the learned appellate court to uphold the conviction even when neither the chemical examination report of the liquor was proved nor the seized articles were exhibited cannot be sustained merely on the oral evidence of P.Ws. 4and 5 and also on the ground that the petitioners have not denied in their statement under Section 313 of Code of Criminal Procedure that the seized material was liquor. This Court is of the considered view that it is for the prosecution to prove the seizure and also that the seized material was wine. Admittedly the chemical examination report has not been exhibited in the present case. This Court has also gone through the lower court records and found that the chemical examination report is not even available in the record except that the investigating officer of the case has recorded in the case diary that the chemical examination report was received. 14. Considering the totality of the facts and circumstances of this case this Court is of the considered view that the prosecution has not been able to prove the case beyond all reasonable doubt and merely because the accused have not stated in their statement under Section 313 of Code of Criminal Procedure that the seized material was something else the same could not have been a ground to sustain the conviction of the petitioners as has been done by the learned lower appellate court. The statement recorded under Section 313 of Code of Criminal Procedure is not evidence but is an explanation by the accused when the incriminating materials are put before him by the court and it is for the prosecution to prove the case beyond shadow of all reasonable doubts. This Court also finds that when the petitioners were produced before the learned court below on 11.07.2007 after their arrest they were remanded on the basis of forwarding report memo of arrest and seizure list and a prayer for sending the seized articles for verification by the Excise Inspector was made only on 23.08.2007 and the examination report is neither exhibited nor available in the record. In view of the aforesaid facts and circumstances the judgements call for in revisional jurisdiction of this court in order to secure the ends of justice as the impugned judgements are perverse and suffer from material irregularity. Accordingly the petitioners are entitled to benefit of doubt. 16. As a cumulative effect of the aforesaid findings the judgement of conviction and sentence dated 10.02.2011 passed by learned A.C.J.M. Bermo at Tenughat in G.R. case No. 5507 corresponding to T.R. Case No. 145 of 2011 as also the judgement dated 15.09.2012 passed by the learned Sessions Judge Bokaro Camp at Tenughat in Cr. Appeal No. 111 are hereby set aside. 17. This Criminal revision petition is accordingly allowed. 18. The bailors are discharged of their liability under the bail 19. Pending interlocutory applications if any are closed. 20. Let the lower court records be immediately sent back to the court concerned. 21. Let a copy of this order be communicated to the learned court below through ‘FAX Email’. Anubha Rawat Choudhary J.)

The High court cannot overlook the statutory limits on its power under Section 482: Supreme Court of India.

The words ‘to secure the ends of justice’ in Section 482 cannot mean to overlook the undermining of a statutory dictate, which in this case is the provisions of Section 14, and Section 17 of the IBC. This honorable judgement was passed by Supreme Court of India in the case of Sandeep Khaitan, Resolution Professional for National Plywood Industries Ltd. Vs. JSVM Plywood Industries Ltd. & Anr. [CRIMINAL APPEAL NO.447 OF 2021] by The Hon’ble Mr. Justice Uday Umesh Lalit. The appeal was directed against order passed by the Hon’ble High Court of Guwahati. In the impugned order, the High Court had allowed an interlocutory application filed by the Respondent to allow it to operate its bank account maintained with the ICICI Bank Bhubaneswar and to unfreeze the bank account of its creditors over which the lien has been created and the accounts frozen pursuant to the lodging of an FIR by the appellant before us. The Appellant was appointed as the Interim Resolution Professional. A moratorium also came to be passed by the very same order within the meaning of Section 14 of the IBC. The Appellant came to be appointed as the Resolution Professional by an order. In the meantime, the Respondent No.1 claiming to be an operational creditor lay the claim for the amounts due to it from the Corporate Debtor before the Appellant vide communication. It would appear that the former Managing Director of the Corporate Debtor challenged the order of the NCLT, Guwahati, admitting the application under Section 7. The NCLAT by order dismissed the appeal inter alia holding that the application under Section 7 was not barred by limitation. The Appellant that the former Managing Director of the Corporate Debtor in conspiracy with the Respondent No.1 engaged in an illegal transaction to the tune of Rs. 32.50 lakhs without authority from the Appellant and in violation of Section 14 of the IBC. It is his complaint that initially, the Managing Director made a transaction of Rs. 500. The court opinioned that, “The words ‘to secure the ends of justice’ in Section 482 cannot mean to overlook the undermining of a statutory dictate, which in this case is the provisions of Section 14, and Section 17 of the IBC.”

SANDEEP KHAITAN RESOLUTION PROFESSIONAL FOR NATIONAL PLYWOOD INDUSTRIES LTD. … APPELLANT(S IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.447 OF 2021 Arising out of SLPNo. 15421) JSVM PLYWOOD INDUSTRIES LTD. & Anr. … RESPONDENT(S) VERSUS JUDGMENT K.M. JOSEPH J. Leave granted. 1. The appeal is directed against order dated 04.02.2021 passed by the Hon’ble High Court of Guwahati. In the impugned order the High Court has allowed an interlocutory application filed by the Respondent No. 1 to allow it to operate its bank account maintained with the ICICI Bank Bhubaneswar and to unfreeze the bank account of its creditors over which the lien has been created and the accounts frozen pursuant to the lodging of an FIR by the appellant before us. It was made subject to conditions. 2. An application under Section 7 of the Insolvency and Bankruptcy Code 2016 hereinafter referred to as the IBC was admitted on 26.08.2019 against one National Plywood Industries Limited of the IBC alleging non corporation by the previous management of the Corporate Debtor. On 27.04.2020 the Appellant got lodged an FIR. On 04.05.2020 the ICICI Bank created a lien upon the bank account of the Respondent No. 1 based on the development to be noticed is the order dated 20.05.2020 passed by the NCLT Guwahati. The order is passed in I.A. No. 320. The relief sought therein was for direction to the Directors of the Corporate Debtor to hand over the management of the company. The order reflects the controversy relating to the payment of Rs. 32.50 lakhs violating the moratorium. Tribunal finds that the directors of the Corporate Debtor were not giving maximum assistance. On the basis of its findings the tribunal issued directions to the suspended Board of the Corporate Debtor to cooperate with the Appellant. The Auditors were to complete the audit expeditiously interalia. More importantly the Directors were directed to refund the amount withdrawn less the amount if any paid to the alleged supplier as the cost of raw materials. The interlocutory application was posted before the regular bench for hearing after lifting the lockdown. 5. A perusal of the order reveals that the Directors of the company sought to defend the withdrawal of Rs.32.50 lakhs as one intended to pay for the raw materials. It is further noticed that the Tribunal noticed that there was no proof for the same. More importantly it was found that even if done to discharge debt due to supplies during the CIRP without permission and knowledge of the Resolution Professional it was in violation of Section 14 of the Code. 6. The Appellant moved an application for review of the order dated 20.05.2020. The Tribunal in its order dated 05.06.2020 noticed the limitations flowing from Rules 154 and 155 of the NCLT Rules 2016 in the matter of review. It is observed that for the reasons highlighted in the 20.05.2020 the former Directors of the Corporate Debtor are found prima facie liable to refund the amount unauthorisedly withdrawn from the account of the Corporate Debtor. It is also noticed that the Directors of the suspended board were not made respondents. The application for review came to be dismissed. 7. The genesis of the impugned order is the FIR lodged against the Appellant and arose from the payment effected into the account of Respondent No.1 in a sum of Rs. 32.50 lakhs. The said FIR came to be challenged in a petition under Section 482 of the Cr.P.C. by the Respondent No.1 by filing Criminal Petition No. 4520. In the same the Appellant also filed I.A. No. 4520. 8. On 19.01.2021 the NCLT Guwahati passed an order in I.A No. 37 of 2020. By the said order the Appellant was directed to discharge his duties as per the provisions of the IBC. Thereafter it also passed the following directions: i. “The Learned Counsel for the Respondents has confirmed that the Suspended Management has been co operating and providing assistance to RP to complete the CIRP in time. The Corporate Debtor is directed to submit its reply Affidavit to the allegations made relating to the transactions of Rs. 35.795 lakhs serving a copy upon the RP. ii. Any amount of the Corporate Debtor lying in any Bank is to be transferred to the account being operated by the RP. Banks having account of the Corporate Debtor are directed to lift the lien if any on any amount of the Corporate Debtor and allow the operation of the account by the RP only. iii. The RP is directed to utilize the funds of the Corporate Debtor under CIRP judiciously keeping the Unit in its full operation.” 9. Thereafter in the petition filed by the Respondent No.1 under Section 482 the High Court admitted the petition. The case was directed to be listed for regular hearing in usual course. According to the Appellant the High Court had directed investigation to be continued. This is not seen reflected in the order which is produced). In the I.A No. 453 of 2020 filed in the Section 482 resulting in the impugned order the prayers sought has already been noted. It is to allow the Respondent No.1 and its creditors to operate their bank account over which lien has been created and those accounts which have been frozen based on the FIR dated 27.04.2020. THE IMPUGNED ORDER After noticing the contentions of the parties the Learned Single Judge in the impugned order proceeds to hold as follows: i. “From the material on record it is apparent that there was business relation between the petitioner company and the NPIL which is evident from the various documents annexed to the petition. Only question raised in this FIR is that the money was transferred by the suspended CMD without any authority inasmuch as the entire state of affairs of NPIL was vested with the Respondent No. 2 who has been appointed as resolution professional. Only petitioner is that the suspended CMD has personal interest in the petitioner company being an associate company which is however a disputed fact required to be investigated by police. ii. Be that as it may having considered the entire gamut of the matter and the nature of accusation brought against the present petitioner I am of the view that freezing of all the bank account as indicated above would certainly cause unnecessary hardship which may not be necessary for the investigation of the present FIR in view of the nature of the accusation made therein as well as in view of the offer made by the petitioner to furnish a bond. Therefore in my consider view the petitioner is entitled to the interim relief as sought for. Accordingly it is provided that the lien created upon the bank account iii. It is however made clear that the interim no. 149905001306 maintained with the ICICI Limited Branch Bhubaneswar be lifted the petitioner and its creditors shall be allowed to operate the bank account over which lien has been created and the accounts have been frozen pursuant to the instruction of the Respondent No. 2 in connection with Margherita P.S. Case No. 0112 2020 until further order of the Court. relief granted to the petitioner as above with regard to unfreezing the bank account and lifting of lien shall be subject to the condition that the petitioner shall withdraw the WP No. 118 2020 filed before the Itanagar Permanent Bench of this Court and furnishing an indemnity bond undertaking to refund the amount of Rs. 32.50 Lakhs if required subject to final outcome of the criminal case.” 13 We heard the Learned Counsel for the Appellant Shri Anand Varma and the Learned Counsel for the Respondent No. 1 Shri Harish Pandey. The State is represented by Shri Shuvodeep Roy. The Learned Counsel for the Appellant contended that the impugned order proceeds on an erroneous basis namely that the allegations about the co accused having an interest in the Respondent No.1 Company was a disputed fact which had to be investigated. It is the case of the Appellant that there is a report of the auditing firm. Also the said finding of the High Court is contrary to the documents of the Respondent No. 1 itself. It is also urged that the High Court itself has permitted the investigation to go on in the petition under section 482. Secondly he pointed out that the impugned order was contrary to Section 14 of the IBC. He drew support from the judgment of this Court in P Mohanraj vs. M S. Shah Brothers Ispat Pvt. Ltd. in Civil Appeal No. 103518. According to him the whole purpose of the moratorium would be defeated if members of the previous management of the Corporate Debtor are left free to transfer the funds of the Corporate Debtor. The Respondent No. 1 was a related party of the Corporate Debtor. He reiterates that with the appointment of Appellant as the Resolution Professional under Section 25 has not been stricken by the remand by this Court of the appeal against the order admitting the application. Per contra Shri Harish Pandey Learned Counsel contended that the order may not be interfered by this Court. The Respondent No.1 was a related party and it was always known to be such related party. He referred to the fact that the Respondent No.1 was supplier of raw material to the Corporate Debtor. He pointed out goods worth more than Rs.2 crores have been supplied by it to the Corporate Debtor. Payments were being made. In fact a sum of more than Rs.39 lakhs is further due from the Corporate Debtor to the Respondent No. 1. It is emphasized as a MSME it would cause grave prejudice to it if the impugned order is set aside. It is the case of the Respondent No. 1 further that the business relationship between the Respondent No. 1 and Corporate Debtor has existed for more than 15 years. The Corporate Debtor has been declared a sick industry on 18.04.2006. It was nursed back by the Respondent No. 1. Our attention is drawn to the minutes of the first meeting of the Committee of Creditors dated 23.09.2019. The minutes reveal that committee of creditors observes that a substantial part of the raw materials is purchased from Respondent No.1 and that the relatives of the Corporate Debtor directors or shareholders hold more than 51 percent shareholding of the first respondent. It is further noted that the processes to assess the veracity and reasonableness of the transaction in such situation were let known and the purchases sales must be benchmarked against arm’s length transactions and open market transactions.It is the case of the Respondent No. 1 that right from the beginning it was known that the Respondent No. 1 was a related party. It is the further case of the Respondent No. 1 that its claim for over 6 crores of rupees was vetted verified and admitted by the Appellant. After the commencement of CIRP Respondent No. 1 had made regular substantial supplies to the Corporate Debtor for which the payment were being madeand has been defined by Regulations. Regulation 32 of the INSOLVENCY AND BANKRUPTCY BOARD OF INDIAREGULATIONS 2016 reads as The essential goods and services referred to in follows: Essential Supplies. section 14(2) shall mean i. Electricity ii. water iii. telecommunication services and iv. information technology services to the extent these are not a direct input to the output produced or supplied by the corporate Illustration Water supplied to a corporate debtor will be essential supplies for drinking and sanitation purposes and not for generation of hydro electricity.” Also undoubtedly Section of Section 14 of the THE INSOLVENCY AND BANKRUPTCY CODE 2016 provides as follows: “Where the interim resolution professional or resolution professional as the case may be considers the supply of goods or services critical to protect and preserve the value of the corporate debtor and manage the operations of such corporate debtor as a going concern then the supply of such goods or services shall not be terminated suspended or interrupted during the period of moratorium except where such corporate debtor has not paid dues arising from such supply during the moratorium period or in such circumstances as may be specified.” This provision was inserted with effect from 28.12.2019. No doubt under this provision goods or services not covered by Section 14(2) are also covered. The call however is to be taken by the IRP RP. Raw material supply could fall within the provision. The IRP RP must take a decision guided purely by the object of the IBC and the provisions and the factual matrix. With the appointment of Committee of Creditors a Resolution Professional is to be thereafter to conduct the resolution process and manage the operations. Section 23 makes it clear that his power is the same as the powers of the Interim Resolution Professional. Undoubtedly the Resolution Professional is bound to seek prior approval of the Committee of Creditors in maters covered by Section 28. We have to also in this context bear in mind that the High Court appears to have in passing the impugned order which is an interim order for that matter overlooked the salutary limits on its power under Section 482. The power under Section 482 may not be available to the Court to countenance the breach of a statuary provision. The words ‘to secure the ends of justice’ in Section 482 cannot mean to overlook the undermining of a statutory dictate which in this case is the provisions of Section 14 and Section 17 of the It would appear to us that having regard to the orders passed by the NCLT admitting the application under Section 7 and also the ordering of moratorium under Section 14 of the IBC and the orders which have been passed by the tribunal otherwise the impugned order of the High Court resulting in the Respondent No. 1 being allowed to operate the account without making good the amount of Rs 32.50 lakhs to be placed in the account of the Corporate Debtor cannot be sustained. The Learned Counsel for the Appellant has also no objection in the Respondent No. 1 being allowed to operate its account subject to it remitting an amount of Rs. 32.50 lakhs into the account of the Corporate Debtor. In such circumstances Appeal is allowed. The Impugned order is modified as follows: i. The Respondent No.1 is allowed to operate its account subject to it to first remitting into the account of the Corporate Debtor the amount of Rs 32.50 lakhs which stood paid to it by the management of the Corporate Debtor. The assets of the Corporate Debtor shall be managed strictly in terms of the provisions of the IBC. The Appellant as RP will bear in mind the provision of Section 14and the object of IBC. We however make it clear that our order shall not be taken as our pronouncement on the 28 issues arising from the FIR including the petition pending under Section 482 of the Cr.P.C. ii. We also make it clear that the judgment will not stand in the way of the Respondent No.1 pursuing its claim with regard to its entitlement to a sum of Rs.32.50 lakhs and any other sum from the Corporate Debtor or any other person in the appropriate forum and in accordance with law. There will be no order as to costs. ......................J. J. New Delhi April 22 2021.

Adverse possession cannot be established without proving the essential ingredients, nec vi, nec clam and nec precario: High Court of Chhattisgarh

For a person to prove that they has the right over some property through adverse possession, they must fulfil the essential ingredients: (i) nec vi meaning without force, (ii) nec clam meaning without secrecy and (iii) nec precario meaning without permission. This was held in the judgement passed by a single member bench of the High Court of Chhattisgarh consisting of Justice Sanjay Agrawal in the case of Radheshyam Pathak v Kanhaiyaa Gond [Second Appeal No. 49 of 2011] on 13th July 2021. The plaintiff, Radheshyam Pathak purchased some land on 27th November 1976. Since he was not using the land at the time, it was given on licence to Mahesh Gond who is the father of the defendants. 14 years later, in the year 1990, the licence was terminated and the property in question was sought to be vacated by a notice dated 3rd September 2007.  The defendants filed a written statement stating that they have been in possession and earning their livelihood from the land for a very long time uninterruptedly and without any interference. For this reason the defendants believed that the plaintiff had no right to right to alienate the suit property and that the suit was in fact barred by limitation. The trial court decreed the suit in favour of the plaintiff which was appealed by the defendants. The first appellate court reversed the decision of the trial court which has been called into question by the plaintiff in the present in the second appeal. The court noted that as per Article 65 of the Limitation Act 1963, once the plaintiff has proven title over the suit land, it is the responsibility of the defendants to plead and establish adverse possession through the essential ingredients, i.e., nec vi, nec clam and nec precario. The High Court was satisfied with the plaintiff’s establishment of title of the land in question, however it was found that the defendants instead of establishing adverse possession claimed to have been title holders of the land. The court also declared that the suit was not barred by limitation since the defendants had not satisfactorily proven that they were in possession of the suit land for over 12 years before the filing of the suit.

HIGH COURT OF CHHATTISGARH BILASPUR Second Appeal No.411 Judgment reserved on: 6 7 2021 Judgment delivered on: 13 7 2021 Radheshyam Pathakthrough legal representatives 1A. Smt. Usha Mishra W o Late Shri R.A. Mishra R o Chhoti Koni 1B. Smt. Nisha Sharma W o A.P. Sharma R o Ganganagar Bilaspur 1C. Smt. Shandhya Dube W o Shri Roopchandra Dube R o 1008 Kaveri Vihar Jamnipali KorbaAppellants 1. Kanhaiyaa Gond S o Late Mahesh Gond Aged about 32 years 2. Nandlal Gond S o Late Mahesh Gond Aged about 26 years 3. Smt. Beha Bai W o Late Mahesh Gond Aged about 60 years All three R o Village Ghutku Tahsil Takhatpur District BilaspurRespondents For Appellants: Mr. Arvind Shrivastava Advocate. For Respondents: Mr. Ravindra Agrawal Advocate Hon ble Shri Justice Sanjay K. Agrawal 1. Proceedings of this matter have been taken up through video 2. This second appeal preferred by the plaintiff appellants hereinwas admitted for hearing on 29 11 2013 by formulating the following substantial questions of law: “1. Whether the first appellate Court was justified in reversing the finding of the trial Court on the basis of the defendants perfecting their right by adverse possession Whether the case of the plaintiffs was established before the trial Court through the power of attorney holder was proper or not ” For the sake of convenience parties hereinafter will be referred as per their status shown and ranking given in the plaint before the 3. Plaintiff Radheshyam Pathak filed suit through power of attorney Vijay Prakash Pathak for recovery of possession based on title stating inter alia that the suit house was purchased by the plaintiff on 27 11 1976 from Shesh Narayan Lal Agrawal and obtained possession of the suit land and immediately thereafter it was given on license to Mahesh Gond father of defendants No.1 & 2. The defendants are sons and widow of Mahesh Gond. In the year 1990 license was terminated and the suit house was sought to be vacated by serving notice dated 3 9 2007 which has not been vacated leading to filing of suit for decree for recovery of possession of the suit house. The defendants filed written statement stating inter alia that they are in possession for long time uninterruptedly and without interference and Shesh Narayan Agrawal has no right to alienate the suit property in favour of the plaintiff they are not licensee and the plaintiff’s suit is barred by limitation. 4. The trial Court after appreciating oral and documentary evidence available on record decreed the suit in favour of the plaintiff which was appealed by the defendants before the first appellate Court and the first appellate Court reversed the decree of the trial Court and dismissed the suit which has been called in question by the plaintiff in this second appeal in which substantial questions of law have been formulated and which have been set out in the opening paragraph of this judgment for the sake of completeness. 5. Mr. Arvind Shrivastava learned counsel appearing for the appellants herein LRs of the plaintiff would submit as under: 1. The trial Court and the first appellate Court both have concurrently held the plaintiff to be the title holder of the suit house therefore since the defendants have not pleaded and established their plea of adverse possession decree for possession passed by the trial Court could not have been interfered and reversed by the first appellate Court In view of Article 65 of the Limitation Act 1963 once title is proved by the plaintiff in a suit for possession based on title it is for the defendant who has to plead and prove the plea of adverse possession and suit cannot be dismissed holding it barred by limitation unless the defendant pleads and establishes the plea of adverse possession. 3. The finding of the first appellate Court that Mahesh Gond and thereafter the defendants are not licensee of the plaintiff is perverse and even otherwise has no adverse bearing to the decree passed by the trial Court. Once the title of the plaintiff is proved non examination of the original plaintiff has no bearing in view of the finding recorded by the first appellate Court that the plaintiff is title holder of the suit house. As such the impugned decree be set aside and that of the trial Court be restored. 4. The defendants have taken the plea of title and adverse possession both which cannot dwell together in view of the decision of this Court in S.A.No.112 2004decided on 15 10 2019. 6. Mr. Ravindra Agrawal learned counsel appearing for the respondents herein defendants would support the judgment & decree of the first appellate Court and submit that the plaintiff was required to prove his title over the suit land in view the decision rendered by the M.P. High Court in the matter of Daryasingh Harisingh and another v. Kalma Nihala1. He would further submit that non examination of the plaintiff is fatal in view of the decision rendered by the Supreme Court in the matter of Mohinder Kaur v. Sant Paul Singh 2 I have heard learned counsel for the parties and considered their rival submissions made herein above and also went through the record with utmost circumspection 8. Article 65 of the Limitation Act 1963 states as under: Description of suit Time from which period begins to run 65. For possession of immovable property or any interest therein based on title When the possession the defendant becomes adverse to 1 AIR 1961 MP 179 29 SCC 358 purposes of this article— a) where the suit is by a remainderman a reversioner other than a landlord) or a devisee the possession of the defendant shall be deemed to become adverse only when the estate of remainderman reversioner or devisee as the case may be falls into possession b) where the suit is by a Hindu or Muslim entitled to the possession of property on the death of a Hindu or Muslim female the possession of the defendant shall be deemed to become adverse only when the female c) where the suit is by a purchaser at a sale in execution of a decree when the judgment debtor was out of possession at the date of the sale the purchaser shall to be a be deemed judgment debtor who was out 9. From a careful perusal of the above stated provision of law it is quite vivid that when the suit is based on title for possession once the title is established on the basis of relevant document and other evidence unless the defendant proves adverse possession for the prescriptive period the plaintiff cannot be non suited. 10. The Supreme Court in the matter of Saroop Singh v. Banto and others3 has held that in the light of Article 65 of the Limitation Act 1963 the plaintiffs have to prove their title and it is for the defendant to prove title by adverse possession and in terms of Article 65 of the Limitation Act 1963 starting point of limitation does not commence from the date when the right of ownership arises to the plaintiffs but 38 SCC 330 commences from the date the defendant s possession becomes adverse. Paragraphs 28 29 and 30 of the report are as under: “28. The statutory provisions of the Limitation Act have undergone a change when compared to the terms of Articles 142 and 144 of the Schedule appended to the Limitation Act 1908 in terms whereof it was imperative upon the plaintiff not only to prove his title but also to prove his possession within twelve years preceding the date of institution of the suit. However a change in legal position has been effected in view of Articles 64 and 65 of the Limitation Act 1963. In the instant case plaintiff respondents have proved their title and thus it was for the first defendant to prove acquisition of title by adverse possession. As noticed hereinbefore the first defendant appellant did not raise any plea of adverse possession. In that view of the matter the suit was not barred In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant s possession becomes adverse. “Animus possidendi” is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case the appellant categorically states that his possession is not adverse as that of true owner the logical corollary is that he did not have the requisite animus. 3 SCC 376 51 SCC 271 63 SCC 114 12. Similarly in the matter of C. Natarajan v. Ashim Bai and another 7 the Supreme Court has held that in a suit governed by Article 65 of the Limitation Act 1963 the plaintiff would succeed if he proves his title and it would be for the defendant to plead and establish his title by adverse possession. It was observed as under: “15. The law of limitation relating to the suit for possession has undergone a drastic change. In terms of Articles 142 and 144 of the Limitation Act 1908 it was obligatory on the part of the plaintiff to aver and plead that he not only has title over the property but also has been in possession of the same for a period of more than 12 years However if the plaintiff has filed the suit claiming title over the suit property in terms of Articles 64 and 65 of the Limitation Act 1963 burden would be on the defendant to prove that he has acquired title by adverse possession. In Md. Mohammad Ali by LRs. v. Jagdish Kalita and Ors.1 SCC 271] it was held : “By reason of the Limitation Act 1963 the legal position as was obtaining under the old Act underwent a change. In a suit governed by Article 65 of the 1963 Limitation Act the plaintiff will succeed if he proves his title and it would no longer be necessary for him to prove unlike in a suit governed by Articles 142 and 144 of the Limitation Act 1908 that he was in possession within 12 years preceding the filing of the suit. On the contrary it would be for the defendant so to prove if he wants to defeat the plaintiffs claim to establish his title by adverse possession”. See also P.T. Munichikkanna Reddy & Ors. v. Revamma Ors.6 SCC 29] Binapani Paul v. Pratima Ghosh Ors.6 SCC 100] Kamakshi Builders v. Ambedkar Educational Society & Ors. and Bakhtiyar Hussaithrough LRs v. Hafiz Khan & Ors CA Nos.497 498 01 decided on 24.09.2007]}.” 13. Thus the legal position as stands today is that in a suit governed by Article 65 of the Limitation Act it is for the plaintiff to aver plead and establish his her title over the suit land and it would not be obligatory for him to prove that he was in possession within 12 years preceding 7 AIR 2008 SC 363 the filing of suit and rather it is for the defendant to plead and establish the plea of adverse possession to non suit the plaintiff. 14. Reverting to the facts of the present case in the light of the aforesaid legal position it is quite vivid that the trial Court has held that the plaintiff is the title holder of the suit land and finding the defendants to be the licensee granted decree for delivery of possession in favour of the plaintiff which was set aside by the first appellate Court in the appeal preferred by the defendants. Though the first appellate Court in para 15 of its judgment held that the plaintiff is registered owner of the suit land and defendants are not licensee but further held that the plaintiff’s suit for possession based on title is barred by limitation as the suit ought to have been preferred within 12 years from the date of execution of sale deed and consequently allowed the appeal and set aside the decree granted in favour of the plaintiff. 15. The plaintiff s suit was for recovery of possession based on title and the plaintiff has proved his title as held by the trial Court and duly affirmed by the first appellate Court. According to Article 65 of the Limitation Act 1963 as noticed herein above once the plaintiff proves his title then the defendant has to plead and establish the plea of adverse possession but in this case the defendants have asserted that they are title holders and in case they are not found to be title holders they have perfected their title by way of adverse possession Plea of title and adverse possession both are mutually destructive plea and inconsistent as well. Therefore the defendants cannot be permitted to raise mutually destructive plea. However since the plaintiff has claimed and proved his title over the suit house as held by both the Courts below it was incumbent on the part of the defendants to plead and establish the plea of adverse possession which they have neither seriously pleaded nor established. 16. The first appellate Court without noticing the provisions contained in Article 65 of the Limitation Act 1963 came to a wholly erroneous finding that suit ought to have been filed within 12 years from 26 11 1976i.e. the date when the sale deed was executed by the erstwhile seller in favour of the plaintiff. Once the plaintiff has proved title over the suit land it was for the defendants to plead and establish the plea of adverse possession which they have halfheartedly taken and did not plead the essential ingredients of adverse possession that are nec vi nec clam nec precario and failed to establish the same yet the first appellate Court held that the suit is barred by limitation. 17. In the considered opinion of this Court the plaintiff having pleaded and proved title over the suit house as held by both the Courts below by virtue of Article 65 of the Limitation Act 1963 the defendants are required to plead and establish adverse possession which they have neither pleaded expressly nor proved to the satisfaction of the Court and thus the suit could not have been held to be barred by limitation by the first appellate Court. The first appellate Court has failed to notice that the law of limitation relating to the suit for possession has undergone a drastic change and Article 65 of the Limitation Act 1963 is differently worded than Articles 142 & 144 of the Limitation Act 1908 and in Articles 142 & 144 of the Limitation Act 1908 the plaintiff was required to show that he was in possession within 12 years preceding the filing of the suit and it has changed by introduction of Article 65 of the Limitation Act 1963. However non examination of the plaintiff is no adverse bearing as two Courts below have already held that the plaintiff is title holder of the suit land and as such the judgment cited on this point by learned counsel for the respondents defendant is clearly inapplicable. The substantial questions of law are answered accordingly. 18. As a fallout and consequence of the aforesaid discussion judgment and decree passed by the first appellate Court are hereby set aside and that of the trial Court are restored. The second appeal is allowed to the extent indicated herein above. No order as to cost(s). Appellate decree be drawn up accordingly Sd Sanjay K. Agrawal)

Where prima facie evidence of involvement in grave offense is present, Court is not inclined to grant bail: High Court of New Delhi

The role attributed to the petitioner is not confined to participation in the mob of rioters but of heading the large crowd, holding a pistol in hand and releasing open fire shots. The video clipping and pictures played before this Court have shaken the conscience of this Court how petitioner could take law and order in his hands. SHAHRUKH PATHAN @ KHAN V. THE STATE OF NCT OF DELHI[BAIL APPLN. 664/2021] in the High Court of New Delhi single bench consisting of JUSTICE SURESH KUMAR KAIT. Facts are that the petitioner was at Jaffrabad Metro Station and Maujpur Chowk, where a clash between two groups took place on 24.02.2020, it was recorded, by a Journalist and the person brandishing and firing from pistol was identified as the petitioner. The petitioner is seeking bail in FIR thus filed against him U/S.147/148/149/186/216/307/353 IPC & Sections 25/27 Arms Act. The counsel for petitioner submitted that after the alleged incident had taken place FIR in question was registered  after 50 hours delay in registration of and placed reliance upon decision of  the Court in Thulia Kali Vs. State and also on State of Kerala Vs. Raneef, that delay in lodging the FIR is an afterthought and results in embellishment. The Special Public Prosecutor has opposed the present petition while submitting that the FIR in question has been registered at the instance of a responsible police officer. That petitioner had absconded since the day of alleged incident. That during interrogation, petitioner has admitted of having purchased the illegal weapon from Merrut for a sum of Rs.35,000 and call detail record and video footage analysis clearly show petitioner’s involvement. Considering the law and the facts of the case the court held that, “Whether or not petitioner had intention to kill the complainant or any person present in the public with his open air pistol shots, but it is hard to believe that he had no knowledge that his act may harm anyone present at the spot. The worthiness of complainant’s statement recorded under Section 161 Cr.P.C. and petitioner’s claim that he had not aimed pistol to shot at the complainant, shall be tested at trial.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 09.04.2021 Pronounced on: 15.04.2021 BAIL APPLN. 664 2021 SHAHRUKH PATHAN @ KHAN Petitioner Through: Mr. Khalid Akhtar Mr.Mohammad Shadan Mr.Bilal Khan Mr.Maaz Akhtar & Mr.Sheikh Bakhtyar THE STATE OF NCT OF DELHI Through: Mr. Amit Mahajan & Mr. Rajat Nair Respondent Special Public Prosecutors with Mr. Shantanu Sharma & Mr. Dhruv Pande Advocates HON BLE MR. JUSTICE SURESH KUMAR KAIT By this petition petitioner is seeking bail in FIR No. 51 2020 under Sections 147 148 149 186 216 307 353 IPC & Sections 25 27 Arms Act registered at police station Jaffrabad Delhi. On 26.02.2020 statement of Head Constable Deepak Dahiya who was deputed to maintain law and order with other members of his team in the area between Jaffrabad Metro Station and Maujpur Chowk where a BAIL APPLN. 664 2021 clash between two groups took place on 24.02.2020 was recorded. In his statement he had stated that one person leading the agitated crowd and brandishing pistol in his hand came running towards him and fired 3 4 rounds of shots towards other people. The said person did not hear to his warnings and continued to walk to approach him and while he was at a distance of 9 to 10 feet he aimed the pistol at his head and shot the pistol fire. Head Constable Deepak Dahiya further stated that he dodged his head and saved his life and tried to calm down the said person but he pushed him with his left hand and he again fired at the public. On his complaint the FIR in question was registered. The incident was captured by a Journalist in his mobile phone and the person brandishing and firing from pistol was identified as Shahrukh i.e. the petitioner herein. Efforts were made to apprehend him and he was intercepted and detained on 03.03.2020. Pursuant to a sustained interrogation petitioner voluntarily disclosed his involvement in the alleged incident and he was arrested in this case and is behind bars since then. At the hearing learned counsel for petitioner submitted that the alleged incident had taken place on 24.02.2020 and the FIR in question was registered on 26.02.2020 and so there is 50 hours delay in registration of the BAIL APPLN. 664 2021 FIR. Reliance was placed upon decision of this Court in Thulia Kali Vs. State of T.N.3 SCC 393 to submit that delay in lodging the FIR is an afterthought and results in embellishment. It was further submitted that merely because petitioner was apprehended from Shamli Uttar Pradesh he cannot be said to be an absconder until and unless declared by the court especially when no notice was issued against him to appear before the authorities. Further submitted that petitioner has been made a scapegoat poster boy of the riots and complainant has become the symbol of bravery before the media persons which is against fundamental rights of the petitioner. Learned counsel further submitted that on the basis of complaint of Head Constable Deepak Dahiya Section 307 IPC has been invoked against the petitioner whereas the petitioner had only shot in the side and not towards him and so he had no intention to kill him. During the course of hearing learned counsel for petitioner placed reliance upon various interview clippings of complainant Deepak Dahiya with media persons and broadcasting channels in support of above submissions. Reliance was also placed upon decision of Hon’ble Supreme Court in State of Kerala Vs. Raneef1 SCC 784 to submit that while deciding BAIL APPLN. 664 2021 the bail application the court has to bear in mind the delay in concluding the trial. It was also submitted that irrespective of how many criminal cases are pending against an accused it cannot form the basis to refuse the bail. Lastly it was submitted that the learned trial court while refusing to grant bail to petitioner has not considered material factual aspects and has mechanically held that the allegations levelled against him are grave. He submitted that petitioner cannot be made to languish behind the jail for an indefinite long period and therefore this petition deserves to be allowed. On the other hand learned Special Public Prosecutor has opposed the present petition while submitting that the FIR in question has been registered at the instance of a responsible police officer who was on duty on the fateful day of riots and there are specific allegations of petitioner heading a pistol towards Head Constable Deepak Dahiya with an intention to kill him. Learned Special Public Prosecutor has played before this Court a video clip as well as a few photographs showing petitioner heading the group of mobs holding his pistol in hand and walking towards the complainant and also firing the pistol shots. 10. Learned Special Public Prosecutor further submitted that petitioner had absconded since the day of alleged incident and he could be intercepted BAIL APPLN. 664 2021 only on 03.03.2020 and at his instance the illegal weapon used by him on 24.02.2020 with 02 live cartridges and the shirt worn by him at the time of incident were recovered from his house. Further submitted that after dispersal of the rioters three empty cartridges bearing the mark KF 7.65 were recovered from the spot by SI Naresh Kumar Jaffrabad Police Station and during interrogation petitioner has admitted of having purchased the illegal weapon from Merrut for a sum of Rs.35 000 and as per FSL report the cartridges seized from the spot have been fired from the weapon of It was also submitted that the call detail record and video footage analysis clearly show petitioner’s involvement in the alleged incident of riots. It was submitted that charge sheet in this case has already been filed and trial is in progress. It is therefore urged that no leniency is required to be shown towards the petitioner and this petition deserves to be dismissed. 12. The arguments heard by both the sides were heard at length and material placed on record is perused. 13. Before coming to the facts and rendering an opinion in the present case this Court takes a serious view to the contents of paragraphs No. 14 to 16 of this petition which are not worth disclosing. Highly derogatory and BAIL APPLN. 664 2021 serious allegations have been made against the Government of India Ministers and Judge of this Court which is deprecated and the Bar is suggested to not make such claims until and unless supported with factual and material evidence in a particular case. 14. Pertinently the allegations levelled against the petitioner in the present case are that in the unfortunate incident of riots which occurred on 24.02.2020 at the road between Jaffrabad Metro Station and Maujpur Chowk amongst people of different communities petitioner was a party to the huge crowd which had unauthorizedly gathered and pelted stones petrol bombs and fired gun pistol shots. 15. The role attributed to the petitioner is not confined to participation in the mob of rioters but of heading the large crowd holding a pistol in hand and releasing open fire shots. The video clipping and pictures played before this Court have shaken the conscience of this Court how petitioner could take law and order in his hands. Whether or not petitioner had intention to kill the complainant or any person present in the public with his open air pistol shots but it is hard to believe that he had no knowledge that his act may harm anyone present at the spot. The worthiness of complainant’s statement recorded under Section 161 Cr.P.C. and petitioner’s claim that he BAIL APPLN. 664 2021 had not aimed pistol to shot at the complainant shall be tested at trial. 16. Moreover it is not the case of petitioner that he was not involved in the alleged incident. In the opinion of this Court the learned trial court has rightly held that the petitioner is alleged to have participated in riots and his picture speaks a volume about his involvement. 17. Keeping in mind the gravity of offence committed by the petitioner as also the facts of the present case I am not inclined to grant bail to the 18. The petition is accordingly dismissed while refraining to comment upon the merits of the prosecution case. JUDGE APRIL 15 2021 BAIL APPLN. 664 2021

Imposing a Bail Condition to keep a Foreigner in Detention Center is not in violation of Article 21: Karnataka High Court

Imposing a Bail Condition to keep a Foreigner in Detention Centre is not in violation of Article 21: Karnataka High Court Imposing of a condition of placing in a Detention Center cannot be said to be illegal and unjustifiable and is not violative of Article 21 of the Constitution held by Justice Hanchte Sanjeevkumar in Toichubek Uulu Bakytbek and the State of Karnataka [Criminal Petition No. 200595/2020]. Facts related to this case is: the petitioner was a foreign national and was a citizen of Kyrgyzstan, had come to Bidar District of Karnataka on a tourist visa and stayed at Bilal Masjid at Bidar. It was alleged against the petitioner that he had come to India On a tourist visa but had violated the conditions of the visa and thus committed the offence of violation of the provision of the FA Act. Therefore with the accusation, the petitioner had violated the provisions of the FA Act by violating the regulations of granting passport and visa, which led to the registration of a case against the petitioner for the offence under sections 14(a),14(b), and 14(c)of FA Act,1946and he was arrested. It was further observed by the Hon’ble Court that “The Detention Centres are not to be construed as putting them into a Jail/Prison. The object behind such establishment of Detention Centre and placing foreign nationals against whom cases have been registered under the FA Act, 1946 is just to restrict their movements across India and should not travel according to their whims and fancies and remain untraceable or absconded or flee away from justice. Therefore, under these facts and circumstances imposition of such condition placing the petitioner in Detention Centre cannot be said to be harsh or even illegal and unjustifiable and it is not violative of Article 21 of the Constitution of India.” It was further observed by the court that “Where a reasonable restriction is made and that is found to be reasonable that cannot be said that there is a violation of Article 21 of the Constitution of India and in this regard, I am unable to accept the contention urged by the learned counsel for the petitioner that there is violative of Article 21 of the Constitution of India imposing such condition. The State has every power to make such restrictions as vested under the law keeping the sovereignty of the country.” The Hon’ble Court while relying on the case of  Babul Khan & Ors vs. State of Karnataka & another [Crl.P.No.6578/2019], observed that “ Further, the Hon’ble Apex Court in the W.P.No.(Civil) No.406/2013 was pleased to pass order on I.A.No.105821/2018 dated 12.09.2018 and 20.09.2019 and issued directions for setting up of Detention Centre and accordingly, the Central Government had issued directions and also prepared Standard Operating Procedure (SOP) and accordingly the respondent-State has also established Detention Centre in Karnataka. This is also observed by this court in Babul Khan’s case (supra) and therefore keeping the foreign nationals or any suspected foreign nationals for having violated the provisions of the FA Act in the Detention Centre is perfectly justifiable.” It was held by the Court that putting foreign nationals, who violates the law of the country after obtaining bail, in a detention centre is different from putting them in jail. Therefore, ordering for placing the petitioner in a detention centre till completion of trial and thereafter till deporting to his country is perfectly within the ambit of law as enshrined in the FA Act and also as per the dictum of this Court in Babul Khan’s case (supra).  Accordingly, the petition has been dismissed. Click here to read the judgement

IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 04TH DAY OF SEPTEMBER 2020 BEFORE THE HON’BLE MR.JUSTICE HANCHATE SANJEEVKUMAR CRIMINAL PETITION NO.200595 2020 Toichubek Uulu Bakytbek S o Toichubek Age: about 31 Years R o Kapsalamou 4 1 Kazakhspan City & Country Kyrgyzstan Now at Ratkalpur Mosque Bidar 585 4014 By Sri Syed Talha Hashmi Advocate) The State of Karnataka Through Bidar Town Police Station Bidar 585401 Through SPP High Court of Karnataka At Kalaburagi 585107 By Sri Prakash Yeli Addl.SPP) … Petitioner … Respondent This Criminal Petition is filed under Section 14(a) 14(c) of Foreigners Act 1946 r w Section 439(1)(b) of Cr.P.C praying to set aside modify the Condition No.6 imposed by the Trial Court while granting bail in Crime 2 No.58 2020 of Gandhi Gunjon the file of Prl. Civil Judge & JMFC II Bidar. This petition having been heard and reserved for orders on 24.08.2020 coming on for “Pronouncement of Order” this day the Court made the following Through Virtual Court) The above petition is filed under Sections 14(a) 14(b) & 14(c) of Foreigners Act 1946r w Section 439(1)(b) of Code of Criminal Procedure 1973 ‘Cr.P.C.’ for short) for setting aside modification of the Condition No.6 imposed by the Prl. Civil Judge & JMFC II Bidar while granting bail in Crime No.58 2020 of Gandhi Gunj Police Station now culminated into C.C.No.708 2020. The facts of the prosecution case in nutshell : The petitioner is a foreign national and is the citizen of Kyrgyzstan had come to Bidar District Karnataka State) on a Tourist Visa and stayed in Bilal Masjid at Bidar. It is alleged against the petitioner that he had come to India on Tourist Visa but had violated 3 the conditions of Visa and thus committed the offence of violation of provisions of the FA Act. Therefore with this accusation the petitioner had violated provisions of the FA Act by violating the regulations of granting passport and visa which led in registration of a case against the petitioner in Crime No.58 2020 for the offences punishable under Sections 14(a) 14(b) & 14(c) of FA Act 1946 and the petitioner was arrested and produced before the Trial Court and he was remanded to custody. Thereafter the petitioner had filed bail petition under Section 437 of Cr.P.C. before the Trial Court which Court by its order dated 12.06.2020 granted bail by allowing the bail petition imposing as many as six conditions. Condition No.6 therein and impugned herein reads thus “The accused shall be kept in near by detention center or if not available shall be kept in detention centre at Bangalore till disposal of this case.”. Being aggrieved by said Condition at Sl.No.6 4 the petitioner appealed to the Court of the Addl. District Sessions Judge Bidar in Crl.Misc.No.297 2020 for modification of Condition No.6. The learned Sessions Judge has dismissed the petition filed under Section 439(1)(b) of Cr.P.C. refusing to modify Condition No.6 imposed by the Trial Court. Being aggrieved by the said rejection order passed by the learned Sessions Judge the petitioner knocked the doors of this court seeking modification relaxation of Condition No.6 stated supra. I have heard Mr. Syed Talha Hashmi learned counsel appearing for the petitioner and Sri. Prakash Yeli learned Addl. State Public Prosecutor appearing for the State. I have also perused the records made available to this court and gone through the law applicable to the case on hand. learned counsel the petitioner vehemently submitted that the Condition No.6 imposed 5 by the Trial Court is harsh one which curtails the life of and liberty of the petitioner as envisaged in Article 21 of the Constitution of India. Further submitted that even though the petitioner is granted bail and ordered to set at liberty on bail pending the trial but imposition of Condition No.6 ordering to keep the petitioner in Detention Center is virtually amounting to negating the benefit of bail granted to the petitioner. Further submitted that the petitioner would abide by all other conditions and also would not leave the territory of India till completion of the trial as also the petitioner is unable to leave the territory of country for the reason that his passport and visa were seized by the concerned police. Therefore submitted the petitioner is ready to face the trial and abide by all the conditions imposed by the Trial Court. Hence prayed for allowing the petition by modifying relaxing the Condition No.6 imposed by the Trial Court. 6 learned counsel petitioner relied upon the decision of co ordinate Bench this Court in Crl.No.8785 2018 decided on 11.04.2019 and submitted that even though for the similar offences foisted under the provisions of the FA Act 1946 there was no such condition was imposed in the said decision of keeping the petitioner in Detention Center. Further he relied on the authority of the Madurai Bench of Madras High Court in Crl.OP(MD)Nos.5769 6018 & 6103 2020 decided on 12.06.2020. Further the learned counsel relies on the order of the Allahabad High Court in Bail.No.2898 2020 dated 02.06.2020 and submitted no such condition of keeping in Detention Center is passed. Therefore submitted that imposition of condition keeping the petitioner in Detention Center is not correct. Therefore prayed to set aside modification relaxation of the Condition No.6 imposed by the Trial Court. 7 7. On the other hand learned Addl. State Public Prosecutor vehemently argued and submitted that the Trial Court has imposed Condition No.6 stated supra as per the Guidelines issued by this court in the case of Babul Khan & Ors vs. State of Karnataka & another and therefore there is no error committed by the learned Magistrate in imposition condition impugned herein. Further learned Addl. State Prosecutor has taken the court to the Guidelines issued by this court in Babul’s Khan case at para No.112 and submitted that the Trial Court has not committed any error in imposition such Condition No.6 which well within the realm of law. He further submitted that as per the dictum made by this court in the Babul’s Khan case at Para No.115 the learned Magistrate has imposed such condition and that is rightly affirmed by the learned Sessions Judge and 8 thus contended the Condition No.6 impugned does not call for any interference at the hands of this court. Further submitted that this court in Babul’s Khan case supra) had observed that even though the court has granted bail and enlarged the petitioners on bail in that case the petitioner cannot be given free movement across the India as per their whims and fancies till the case is decided or till the Government decides whether they have to be deported to their mother country or not. Thus contend that under these circumstances in view of guidelines that any foreign nationals who violates the rules law relating to visa and passport and are found to be in violation of provisions of FA Act they shall be kept in a Detention Center. On these grounds prays for dismissal of the petition. In the present case the petitioner is facing offences under Sections 14(a) & of the FA Act. The petitioner is granted bail on 12.06.2020 and one of 9 the conditions imposed while enlarging on bail is that the petitioner shall be kept in Detention Center without prior permission of the court. For imposing such condition the Trial Court has observed in Para No.19 that as per the order of this Court in Babul’s Khan case supra) such conditions is imposed. Therefore the Trial Court’s decision of imposing of such condition is preceded by the dictum of this Court in Babul’s Khan case 1920 The Citizenship Registration of Citizen and Registration of National Identity Card) Rules 2003 ForeignersOrder 1964 and under various provisions of Code of Criminal Procedure 1973 and Indian Penal Code 1860 has made observations at paragraphs No.112 & 115 which reads as follows 10 “112. Before parting with this Judgment I feel it just and necessary to issue the following guidelines to the Courts and the concerned authorities on the basis of the above said discussion though it may not be it may have some help to the exhaustive but authorities in the helm of affairs. 1) As soon as the offence under Foreigner’s Act and other Laws is detected and there is a strong prima facie material to show that the detected person is a foreign national and if he has no Pass port or Visa or if the visa is expired and he has no right to stay in Indian territory proceedings shall be immediately started to deport him to his nation without unnecessary delay from the date of registration of FIR against such person. 2) The jurisdiction police have to immediately take steps to inform the concerned competent authorities to initiate all proceedings to deport such foreign national to his mother country visa viss other competent authorities also share the details of such person amongst themselves and concerned jurisdictional Court. 3) If the Court refuses to grant bail to those personsin any criminal case the Court shall keep such person in regular jail till the disposal of the case. 4) If for any reason the Courts grants bail including anticipatory bail in any criminal case where the offender is a foreign national and the offences are under the Foreigners Act and or also under any other Laws for the time being in force and their visa is cancelled or lapsed or they have no pass port or they are illegal migrants then the Courts shall specifically 11 order to keep them in detention centers unless the competent authority has passed any orders under section 3(2) to of Foreigners Act 1946 or till further orders of the court or till they are deported to their mother countries. Emphasis supplied by me) 5) If the case registered against the foreign nationals ended in conviction they shall be ordered to be kept in regular prison of the stat till they serve their sentence and thereafter serving the sentence they shall be kept in detention centers till they are deported to their country. 6) If the case ends up in discharge release of the accused or acquittal and their nationality is in dispute before the competent Tribunal they shall be ordered to be kept in detention centers till they are deported to their country unless they have any right or otherwise entitled to remain in Indian Country or the competent authority has passed any orders under section 3(2) to of Foreigners Act 1946 the acquittal discharge or release of the Accused is no bar for concerned competent authorities to question the nationality of that person before the 7) The public prosecutors the defence Counsel and the Courts shall make all their efforts to expeditiously deal with such cases by giving priority for its early disposal so as to enable other competent authorities to take facts and circumstances of each case for deportation of such foreign national accused as early as possible. The Court may also if permissible under law and applicable to the facts and circumstances of a case may invoke sections steps under 12 265A to 265L under chapter XXIof Criminal Procedure Code after following due procedure. 8) As far as possible where a foreign national is involved in a case the courts shall make their endeavor to record evidence and guide the write if the accused in such case is not conversant with the local language. in English Language 9) The Central Government and the State Governments shall take all necessary steps to establish as many as necessary Detention Centers at Cities Districts and Taluka places as per the detention Center Manual referred to in this judgment with all necessary basic facilities as per the detention centre manual as per the directions and guidelines of the Apex Court in Upadhyaya Vs State of A.P. and 2007)15 SCC 337 referred to in the body of this judgment in detail so as case to keep the foreign nationals till their deportation whenever they are ordered to be kept in detention centers by competent authorities or by the Courts. reported in 10) In case of accused foreign national is a woman a woman having a child or the child itself the competent authorities including jail authorities detention center and the Courts and Juvenile Justice Boards have to follow the Guidelines of the Hon’ble Apex Court laid down in the Upadhyaya’s case noted supra addition to the provisions under the Prisons Act and as well Prisons Rules and Juvenile Justice Act and Rules strictly and meticulously in their letter and spirit. If a mother who is a foreign national is in custody and having infant below the age of six 13 years or up to six years the court may order the child to accompany the mother during her custody. If either of parents got arrested then the custody of the child may be given to the other parent who is not arrested. If both the parents are arrested and they are in custody in same or in some other case court may order custody of children to their close relative or to Government shelter home or to any other organization recognized or undertaking of the government where government or concerned authorities can monitor the well being of the Care and child as per Juvenile Justice Protection of Children) Act 2015 and Rules. jail authorities have 12) If a foreign national is convicted by the Court and any application for parole is made consideration the conditions enumerated under section 4 of the Foreigners Act 1946 additional to the Prisons Act and Rules. 13) If a Foreign National is found to be an illegal migrant and not a citizen of India and has been involved in any criminal offences under other law of the land for the time being in from foreigners act the State force apart Government or the central Government as the case may be take immediate necessary steps by exercising their discretion after applying their mind to the facts and circumstances of the case if necessary and if the circumstances warrants if the offences are not heinous or antisocial or not punishable with imprisonment for more than three years and or with fine only withdraw those cases under Section 321 of the concerned to enable Cr.P.C. so as authorities to take necessary steps to depart such persons to their mother country as expeditiously as possible. 14 14) The State Legal Services Authority District Legal Services Authorities and Taluka Legal Services Committees shall make a periodical visit to the jails and Detention centers to ensure and satisfy itself that the concerned authorities have taken necessary steps to implement the directions issued by the Apex in Upadhyay’s case and also the detention center manual so as appropriate action to inform the concerned authorities to rectify their mistakes and also the Legal services authorities suo motu can take appropriate steps in accordance with law to get the mistakes or errors rectified on the legal side. 15) The Central Government and the respective state Governments shall often revise Detention Center Manual and also the {risons Act and Rules based on the need of the hour to bring necessary changes so as to effectively efficiently implement the very object of such Manual and Laws. 16) The Central Government the State Government the Karnataka State Legal Services Authority Karnataka Judicial Academy and Police Academy appropriate necessary swift action to sensitize all the stake holders Judges Prosecutors Police Immigration Officers Officers Custom and FRRO FRO) Jail Authorities and Officers delegated in Detention Centers in this regard. the State shall 17) Registry is directed to send a copy of this Order to the Chief Secretary Principal Secretary to Home Department Director General and Inspector General of Police Karnataka State Legal Services Authority 15 and Karnataka Judicial Academy appropriate necessary steps.” “115. However when the police have invoked Section 14 of the Foreigners Act the presumption u s.9 of the Foreigners Act will come into play unless it is shown to the court during the course of trial that the petitioners are not foreign nationals they should be presumed as foreign nationals. Apart from invoking Section 14A of the Foreigners Act it is alleged that they were holding the empty cartridges with them and therefore the police have invoked Section 25 of the Indian Arms Act. However the major offences are u s.14A and 14B of the Foreigners Act. The offence u s.25 of the Arms Act is not punishable either with death or life imprisonment. Therefore in my opinion imposing stringent conditions the by means of petitioners are entitled to be enlarged on bail. However it is made clear that though the court is enlarging them on bail they cannot be given free movements to wonder across India as per their whims and fancies till the case is decided or till the Government decides whether they have to be deported to their mother country. Till that point of time in my opinion they shall be kept in Detention Centre with all facilities as noted above and if they are acquitted in the case registered against them the Government has to take appropriate steps whether the determination of their nationality has to be done by the Competent Authority and whether they are still to be deported to their mother country and thereafter only appropriate decision has to be taken by the Government. Further if they are convicted for any reason the Competent Authorities have to take appropriate steps to deport them to their country immediately.” Emphasis supplied by me) 16 10. Further the Hon’ble Apex Court in the W.P.No.(Civil) No.406 2013 was pleased to pass order I.A.No.105821 2018 dated 12.09.2018 20.09.2019 and issued directions for setting up of Detention Center and accordingly the Central Government had issued directions and also prepared Standard Operating Procedure and accordingly the respondent State has also established Detention Center in Karnataka. This is also observed by this court in Babul Khan’s caseand therefore keeping the foreign nationals or any suspected foreign nationals for having violated the provisions of the FA Act in the Detention Center is perfectly justifiable. 11. The Detention Centers are not to be construed as putting them into a Jail Prison. The object behind such establishment of Detention Center and placing foreign nationals against whom cases have been registered under the FA Act 1946 is just to restrict their movements across India and should not travel 17 according to their whims and fancies and remain un traceable or absconded or flee away from justice. Therefore under facts and circumstances imposition of such condition placing the petitioner in Detention Center cannot be said to be harsh or even illegal and unjustifiable and it is not violative of Article 21 of the Constitution of India. Where reasonable restriction is made and that is found to be reasonable that cannot be said that there is violation of Article 21 of the Constitution of India and in this regard I am unable to accept the contention urged by the learned counsel for the petitioner that there is violative of Article 21 of the Constitution of India imposing such condition. The State has every power to make such a restrictions as vested under the law keeping the sovereignty of the country. 12. The Madurai Bench of Madras High Court in Crl. OP(MD)Nos.5769 6018 & 6103 2020 decided on 12.06.2020 is relied upon by the counsel for the 18 petitioner. The Madurai Bench of Madras High Court while releasing the petitioners therein on bail had also imposed such similar condition at paragraph Nos.23.2 by ordering that it is open to the authorities to require the petitionersto stay at the special camp earmarked under Section 3(2)(e) r w 4(2) of the Foreigners Act 1946. 13. Section 3(1) & Section 3(2) e) of the Foreigners Act stipulates as follows “3. Power to make orders.The Central Government may by order make provision either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description for prohibiting regulating or restricting the entry of foreigners into India or their departure there from or their presence or continued presence therein. foreigner In particular and without prejudice to the generality of the foregoing power orders made under this section may provide that the foreigner a) xxxxxx b) xxxxxx c) xxxxxx cc) xxxxx 19 d) xxxxxx shall comply with such conditions as may be prescribed or specified requiring him to reside in a particular place movements 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 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 ” 20 14. Therefore as per clauses i & ii of Clause 3 of Sub section 2 of Section 3 of the FA Act gives power requiring any foreign nationals who is facing offences under the FA Act to make him to reside in a particular place or imposing restrictions on his movements. Therefore making the petitioners to reside in a particular place and imposing restrictions on his movement is as per the statute and therefore there is no unreasonableness while imposing such condition by the Trial Court. This court while considering all aspects in Babul Khan’s casethe Trial Court by following the same had imposed condition No.6. Therefore it is virtually in consonance of the law of the country and therefore it cannot be said that there is violation of Constitution of India. 15. Further the imposition of condition of placing the foreigners in a particular place who are facing offences under any enactment made in this country is as per Section 4(1) & of Foreigners Act. 21 For easy reference Section 4(1) & of the FA Act are extracted as under “4. Internees.(1) Any foreigner in respect of whom there is in force any order made under clause of sub section of section 3 directing that he be detained or confined shall be detained or confined in such place and manner and subject to to maintenance such conditions as discipline and the punishment of offences and breaches of discipline as the Central Government may from time to time by order determine. 2) Any foreigner in respect of whom there is in force an order under clause of sub section of section 3 requiring him to reside at a place set apart for the residence under supervision of a number of foreigners shall while residing therein be subject to such conditions as to maintenance punishment of offences and breaches of discipline as the Central Government may from time to time by order determine.” 16. When there is a legislative mandate to act upon such mandate then passing order as per the legislative mandate cannot be termed as illegal or unjustified. In the present case as discussed above as 22 per Sections 3 and 4 of the FA Act condition No.6 is imposed. Further as per the dictum of this Court in Babul Khan’s case the learned Magistrate has imposed condition No.6 and therefore under these circumstances it cannot be said that the imposition of such condition is unreasonable or illegal. The learned Magistrate has simply followed the dictum of this Court rendered in Babul Khan’s case (supra). Further more a greater caution is to be exercised while dealing with foreign nationals in such offences imposition of condition No.6 by the learned Magistrate and then affirmed by the learned Sessions Judge is as per law as stated above. Imposition of such condition is also in the interest of protecting sovereignty of the country. Sovereignty of the country is not only to be preached but it is also an obligation of practice by every authority. The imposition of condition of putting the petitioner into detention centre is with the object that he she should not abscond or flee away from justice 23 and leave the country on the pretest of enlarging on bail. Therefore such condition is imposed and ordering for putting the petitioner in a detention centre cannot be termed as negating the bail. Putting a foreign nationals who violates the law of the country after obtaining bail in a detention centre is different from putting them in a jail. Therefore ordering for placing the petitioner in a detention centre till completion of trial and thereafter till deporting to his country is perfectly within the ambit of law as enshrined in the FA Act and also as per the dictum of this Court in Babul Khan’s case (supra). Therefore the order of the learned Magistrate imposing condition No.6 cannot be said to be unreasonable illegal or unjustified. Therefore the petition filed is found to be devoid of merits and thus is liable to be dismissed. Accordingly the present petition dismissed. JUDGE Sd

False implication of Pre-Occurred Injuries upon the Petitioners as been caused by them by the Informant: High Court Of Patna

The Petitioners alleged of hitting the informant hard on the head with an iron rod were granted bail on finding that there existed pre- occurred injuries on the informant’s head and body. The Hon’ble High Court of Patna before Justice Mr. Ahsanuddin Amanullah in the matter Md Kajim and others v. The State of Bihar[Criminal Miscellaneous No. 58825 of 2021].  The facts of the case were that the Petitioners were apprehended arrest in connection with the Case, instituted under Sections 448, 341, 323, 308, 354, 504, and 506/34 of the Indian Penal Code, 1860. It was alleged that the petitioners and another person assaulted the informant, his wife, and his son. The contentions are specifically against the co-accused of hitting with an iron rod on the head resulting in injury. The Learned Counsel for the Petitioners submitted that all the allegations against them were general and omnibus and specifically against the co-accused of hitting by iron rod on the head. It has been noted that there was fracture of the right frontal bone, orbital roof, lamina, and nasal bone on the informant, the same being attributable to co-accused and the petitioners have been falsely implicated. It was submitted that the petitioners have no other criminal antecedent. The Learned Additional Public Prosecutor submitted that the allegations that are made against the petitioners are also of the assault. However, it wasn’t conflicted that there existed the pre occurred injuries on the informant’s head and body. The Hon’ble High Court Of Patna held,” Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, in view of there being general and omnibus allegation of attack and one injury on the head being specifically attributable to another coaccused, as has been noted in the order of the Court below and the petitioners not having any other criminal antecedent, the Court is inclined to allow the prayer for pre-arrest bail.” The Petitioners were hence granted bail on the conditions of cooperating with the police and court. If they committed any other illegal or violating activities to the Law then the bail shall be denied. The Petition was disposed of on the mentioned terms.

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 588221 Arising Out of PS. Case No. 233 Year 2020 Thana LODIPUR District Bhagalpur 1. Md Kajim @ Md Kazim aged about 50 years Male Son of Late Md. Ismail Barku. 2. Md Hamayu @ Md Hemayu aged about 18 years Male Son of Md. Kajim Md. Kazim Both resident of Village Near MasjidPS Lodipur District The State of Bihar ... Petitioner s ... Opposite Party s For the Petitioner s For the State Mr. Md. Mushtaque Alam Advocate Mr. Md. Arif APP CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 08 10 2021 The matter has been heard via video conferencing. 2. The case has been taken up out of turn on the basis of motion slip filed by learned counsel for the petitioners which was 3. Heard Mr. Md. Mushtaque Alam learned counsel for the petitioners and Mr. Md. Arif learned Additional Public Prosecutorfor the State 4. The petitioners apprehend arrest in connection with Lodipur PS Case No. 233 of 2020 dated 16.12.2020 instituted under Sections 448 341 323 308 354 504 and 506 34 of the Indian Penal Code 1860 Patna High Court CR. MISC. No.588221 dt.08 10 2021 5. The allegation against the petitioners and another person is of assault on the informant his wife and son and specifically against co accused Md. Aman of hitting the informant by iron rod on head resulting in injury 6. Learned counsel for the petitioners submitted that the allegation against them is general and omnibus and specifically against co accused Md. Aman is of hitting by iron rod on the head It was submitted that the order of the learned 3rd Additional Sessions Judge cum Special Judge Bhagalpur in ABP No. 14321 dated 07.09.2021 it has been noted that there was fracture of right frontal bone orbital roof lamina papyreacca and nasal bone on the informant the same being attributable to co accused Md. Aman and the petitioners have been falsely implicated. It was submitted that the petitioners have no other criminal antecedent 7. Learned APP submitted that the allegation against the petitioners also is of assault. However it was not controverted that the injury which has been found on the informant is specifically attributed to co accused Md. Aman and not the petitioners herein 8. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties in view of there being general and omnibus allegation of attack and one Patna High Court CR. MISC. No.588221 dt.08 10 2021 injury on the head being specifically attributable to another co accused as has been noted in the order of the Court below and the petitioners not having any other criminal antecedent the Court is inclined to allow the prayer for pre arrest bail 9. Accordingly in the event of arrest or surrender before the Court below within six weeks from today the petitioners be released on bail upon furnishing bail bonds of Rs. 25 000 twenty five thousand) each with two sureties of the like amount each to the satisfaction of the learned ACJM IX Bhagalpur in Lodipur PS Case No. 2320 subject to the conditions laid down in Section 438(2) of the Code of Criminal Procedure 1973 and further that one of the bailors shall be a close relative of the petitioners that the petitioners and the bailors shall execute bond and give undertaking with regard to good behaviour of the petitioners andthat they shall co operate with the Court and police prosecution. Any violation of the terms and conditions of the bonds or the undertaking or failure to co operate shall lead to cancellation of their bail bonds 10. It shall also be open for the prosecution to bring any violation of the foregoing conditions 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 petitioners Patna High Court CR. MISC. No.588221 dt.08 10 2021 11. The petition stands disposed of in the (Ahsanuddin Amanullah J

Neither the recruitment rules nor the offer of appointment can override the service rules, regulations and statutory provisions: Tripura High Court

Neither the recruiting rules nor the advertising nor the offer of appointment will circumvent the service rules, legislation and regulatory requirements. Even if the advertising provided that an appointee shall be put under fixed salary for a term of 5 years, never explained that even if the laws and regulations so include, the past service of a career aspirant who has been a Government servant already for over 5 years will be wiped out, nor could it have been so recommended. The judgement was passed by the High Court of Tripura in the case of Aparna Chowdhury v. The State of Tripura [WP(C) No.290/2020] by Single Bench consisting of Hon’ble Justice MR. Akil Kuresh. The petitioner was selected and offered an appointment to the post of Postgraduate teacher in English in a Government school on a fixed monthly payment of Rs.22,785 under office memorandum. The petitioner accepted such appointment and after rendering her resignation which was accepted by the employer. Her grievance is that in her new assignment as a Government teacher her pay has been downgraded. She would point out that as a teacher in a grant-in-aid school. Therefore, this petition praying that her past service in grant-in-aid school is counted for her pay fixation as a Government teacher. Learned counsel for the petitioners strenuously urged that both the petitioners were placed in proper pay scales prescribed by the Government for teachers. They were teachers in grant-in-aid schools where the grant of salary to the teaching staff would come from the Government funds. Such teachers are paid at the same rate as Government teachers. Their service conditions are governed by the grant-in-aid code of the State of Tripura which envisages proper selection and appointment of teachers as well as their tenure protection. Their engagements were thus akin to Government service. They had applied for selection with prior objection from their employers and joined the duties after tendering technical resignations. Learned counsel for the respondent the petitions contending that the petitioners had applied in response to the advertisement which clearly specified that the appointee would be expected to discharge duties for 5 years on a fixed salary basis before he/she would be brought over to the regular scale. The petitioners accepted appointments with this clear stipulation in mind. Further, they were working in private schools. Merely because the schools received grant-in-aid from the Government would not mean that the petitioners were Government servants. CCS Rules and the instructions relied upon by the petitioners would apply only in case a Government servant from one department tenders technical resignation and joins another Government department which is not the situation in the present case. “It can be seen that interdepartmental migration of the employees is not discouraged, be it the Government of India or the State. Specifically Rule 26(2) of CCS Rules protects the past service of an employee of the Government even after his technical resignation and joining a new post. Though this is limited for pensionary benefits of an employee, it is impossible.”

HIGH COURT OF TRIPURA WP(C) No.290 2020 Smt. Aparna Chowdhury Reang D O Sri. Satrunjoy Prasad Chowdhury Resident of Village + P.O Fulkumari No 2 P.S R.K Pur District Gomati Pin 799113. Petitioner(s) 1. The State of Tripura New Secretariat Building New Capital Complex Kunjaban PS New Capital Complex Agartala West Tripura PIN 799010. 2. The Director O O the Directorate of Secondary Education Govt. of Tripura Office Lane Agartala West Tripura Agartala Pin 799003. 3. The Director O O the Directorate of School Education Govt. of Tripura Office lane Agartala West Tripura Agartala Pin 799003. 4. The Secretary Department of Finance Government of Tripura New Secretariat Building New Capital Complex Kunjaban P.S New Capital Complex Agartala West Tripura PIN 799010. 5. Ishanchandranagar Pargana H S School To be represented by it’s Secretary cum School Managing Committee P.O Ishanchandranagar Dist West Tripura Dukli Block Sadar Sub Division West Tripura PIN 6. The Secretary School Managing Committee Ishanchandranagar Pargana H S School PO Ishanchandranagar Dist West Tripura Dukli Block Sadar Sub Division West Tripura PIN 799003. Respondent(s) Along with WP(C) No.333 2019 Smt. Suparna Deb Roy W O Sri. Partha Sarathi Ghosh R o Kadamtali Krishnanagar P.O. Agartala P.S. West Agartala District West Tripura. Petitioner(s) under: 1. The State of Tripura represented by its Principal Secretary School Education Department Government of Tripura P.O. Kunjaban P.S. New Capital Complex District West Tripura. 2. The Director Directorate of Secondary Education Govt. of Tripura P.O. Agartala P.S. West Agartala District West Tripura. 3. Udaipur Ramesh H.S. School Represented by the Secretary Managing Committee P.O. R.K. Pur P S R.K. Pur District West Tripura. 4. Teachers Recruitment Board Represented by its Member Secretary Govt. of Tripura P O Agartala P S West Tripura Dist.: West 5. The Secretary cum Commissioner Finance Department Govt. of Tripura P O Kunjaban P S New Capital Complex Dist. West Tripura. Respondent(s) For Petitioner(s) For Respondent(s) Mr. P. Roy Barman Sr. Advocate Mr. Arijit Bhowmik Advocate Mr. Samarjit Bhattacharjee Advocate Mr. Ankan Tilak Paul Advocate. Mr. Dipankar Sharma Addl. G.A. HON’BLE THE CHIEF JUSTICE MR. AKIL KURESHI Date of hearing and judgment : 18th March 2021. Whether fit for reporting NO. JUDGMENT & ORDERAkil Kureshi C.J.) These petitions involve similar questions. Brief facts are as 2. Smt. Aparna Chowdhury Reang petitioner of WP(C) No.290 of 2020 holds the qualification of graduation from Tripura University and Masters Degree from IGNOU. She was appointed as Assistant Teacher in a private aided school in the higher secondary section for a fixed monthly salary of Rs.2 730 . Her service conditions would be governed by grant in aid code. Her appointment was approved by the Director of School Education Government of Tripura on 10.09.2004 and petitioner joined the duty on 04.11.2004. Upon completion of 5 years w.e.f. 04.09.2009 she was also brought over to regular pay scales. After 10 years of service she was granted benefit of First Assured Career Advancementin terms of the Revision of Pay Rules 2009. 3. The Government of Tripura invited applications for the post of Graduate and Postgraduate teachers in Government schools on 27.05.2017. The petitioner applied in response to the said advertisement after obtaining no objection from her employer. She was selected and offered appointment to the post of Postgraduate teacher in English in a Government school on a fixed monthly pay of Rs.22 785 under office memorandum dated 30.06.2018. The petitioner accepted such appointment and after rendering her resignation which was accepted by the employer the petitioner joined the duty on 05.02.2019. Her grievance is that in her new assignment as a Government teacher her pay has been downgraded. She would point out that as a teacher in grant in aid school she was placed in the regular pay scale prescribed for a postgraduate teacher whereas in her new assignment as a Government teacher she has been granted salary on fixed pay basis which is much lower than her previous pay. She has therefore filed this petition praying that her past service in grant in aid school be counted for the purpose of her pay fixation as a Government teacher. In other words she expects that instead of asking her to work on fixed pay structure for initial period of 5 years she may be placed in the time scale of pay from inception. 4. Petitioner of WP(C) No.333 of 2019 Smt. Suparna Deb Roy was appointed as a Postgraduate teacher in private but Government aided school in September 2011. Her initial appointment was on fixed pay basis. Upon completion of 5 years w.e.f. 23.09.2016 she was granted regular scale of pay. She also applied in response to the Government advertisement dated 27.05.2017 for the post of Postgraduate teacher after obtaining no objection from her employer. She was selected an offer of appointment as a Postgraduate teacher under an order dated 20.10.2017. After tendering resignation which was accepted by the employer she joined duty on 27.12.2017. She has also been placed in fixed salary regime. She would have to wait for 5 years before she was brought over to regular scales. 5. Learned advocates for the petitioners strenuously urged that both the petitioners were placed in proper pay scales prescribed by the Government for teachers. They were teachers in grant in aid schools where the grant of salary to the teaching staff would come from the Government funds. Such teachers are paid at the same rate as Government teachers. Their service conditions are governed by grant in aid code of the State of Tripura which envisages proper selection and appointment of teachers as well as their tenure protection. Their engagements were thus akin to Government service. They had applied for selection with prior no objection from their employers and joined the duties after tendering “technical” resignations. The counsel relied on F.R. 22 and Rule 26(2) of CCSRules in support of their contentions. They also placed heavy reliance on a decision in case of Tarendra Reang & others vrs. The State of Tripura & others in WP(C) No.234 of 2020 and connected petitions decided by the Single Judge by a judgment dated 06.01.2021. On the other hand learned Addl. Government Advocate Mr. Dipankar Sharma opposed the petitions contending that the petitioners had applied in response to the advertisement which clearly specified that the appointee would be expected to discharge duties for 5 years on fixed salary basis before he she would be brought over to regular scale. The petitioners accepted appointments with this clear stipulation in mind. Further they were working in private schools. Merely because the schools received grant in aid from the Government would not mean that the petitioners were Government servants. F.R. 22 Rule 26(2) of the CCS(Pension) Rules and the instructions relied upon by the petitioners would apply only in case a Government servant from one department tenders technical resignation and joins another Government department which is not the situation in the present case. He also argued that the facts in case of Tarendra Reang were vitally 7. Under a notification dated 31.05.2005 Government of Tripura formulated the Tripura Grant in aid Rules 2005of the Grant in aid Rules as an officer duly appointed as an administrator by the Director of School Education. Chapter II contains Rule 3 which pertains to terms and conditions for having Grant in aid and its status. Existing schools would be covered by the grant in aid code as per the guidelines issued by the Government from time to time. Rule 4 contained in Chapter II pertains to eligibility for payment of grant in aid. Rule 5 pertains to functioning of Managing Committees. Sub clauseof Rule 5 provides that appointment to all categories of posts both by direct recruitment and promotion shall be made strictly following all provisions of the Recruitment Rules finalized by the Education Department for these categories of posts in Government schools. As per clauseof Rule 5 the age of retirement for all teaching and non teaching staff in such privately managed grant in aid schools will be same as applicable to Government schools. Rule 7 pertains to facilities to be provided to the Government aided schools. As per sub clause of clause of this Rule once a school is given status of grant in aid 100% pay and allowances to the approved teaching and non teaching staff will be borne by the Government. 8. Chapter III contains only one Rule 9 which pertains to disciplinary matters and provides for detailed procedure for suspension of the teaching and non teaching staff of the grant in aid school the penalty that can be imposed on such staff and the manner of imposing such penalties. Chapter IV pertains to miscellaneous matters. Rule 10 contained in the said chapter pertains to withdrawal of grant if in the opinion of the Director of School Education the school is not fulfilling any other terms and conditions of the grant or is found to be violating valid instructions of the Government. 9. The basic philosophy behind formulation of the grant in aid scheme is that though the Government has a duty to provide education in primary and secondary level it may not be possible to cover the entire eligible population for admitting students in Government schools. Instead of setting up such Government schools the Government would aid private schools and undertake the responsibility of salary and other administrative expenditure for running such a school. In turn the school would have to adhere to certain Government policies and guidelines. The teaching and non teaching staff would have tenure protection against arbitrary terminations. Nevertheless an employee of a grant in aid school is not in Government employment. Such grant in aid can be withdrawn after following the procedure under several circumstances such as the school being mismanaged or not following the directives of the Government. Such situation can also be envisaged where a grant in aid school may be shut down if it is found that the management is unable to sustain the school for insufficient number of students studying in the school. 10. The crux of the issue is that the staff of a grant in aid school is certainly not in Government employment. A teacher of a grant in aid school may have his pay protection as long as he continues in such employment and the school continues to receive grant in aid. The teacher may have tenure protection in terms of Rule 9 of Grant in aid Rules however he is not a Government servant. 11. The request of the petitioners for protection of past service therefore must be viewed on this basis. Clauseof F.R. 22(I) would cover a case where a Government servant holding a post other than a tenure post in substantive temporary officiating capacity is promoted or appointed in a substantive temporary officiating capacity. In such a situation he would have certain pay protection. Clearly this clause applies to a Government servant when he is promoted or appointed on another Government post. Likewise Rule 26 of the CCS Rules pertains to forfeiture of service on resignation. Sub ruleof Rule 26 as is well known envisages forfeiture of past service upon a Government servant resigning. Sub ruleof Rule 26 which is in the nature of an exception to sub rule provides that a resignation shall not entail forfeiture of past service if it has been submitted to take up with proper permission another appointment whether temporary or permanent under the Government where such service qualifies. Rule 26 itself is applicable to a Government servant and sub ruleof Rule 26 would therefore cover a case of a Government servant who resigns from one Government post for taking up another Government position with a proper permission of the employer. The Government of India instructions in this respect clarifying this position also therefore would not carry the case of the petitioners any further. 12. In case of Tarendra Reang all the petitioners were working on different posts under the State Government. They had applied for appointment to the post of graduate postgraduate teachers in Government schools. Upon selection they had tendered technical resignations and taken up new assignments. When they were once again asked to serve on fixed salary basis for 5 years this Court held that the same would not be permissible. It was in this context that the Court had relied on F.R. 22 and Rule 26(2) of the CCSRules and allowed the petitions by making following observations: “[14] Under this memorandum even upon a Government joining a new post the Government or autonomous organization set up by the Government his past service for the purpose of being governed by the old pension scheme will be granted provided his join in the new service after tendering technical resignation. Thus even the Government of Tripura recognises this concept of the past service being protected when an employee tenders technical resignation and joins new post under Government. Even otherwise this is an implication of sub rule of Rule 26 of CCS(Pension) Rules which have been adopted by the State Government. 15] From the above discussion it can be seen that interdepartmental migration of the employees is not discouraged be it the Government of India or the State Government. Specifically Rule 26(2) of CCS(Pension) Rules protects the past service of an employee of the Government even after his technical resignation and joining new post. Though this is limited for the purpose of pensionary benefits of an employee it is impossible to protect the pension without protecting his pay. 16] The incongruity of the situation that may be brought about if the Government’s stand is accepted would be that full time Government servants who have after rendering service for 5 years on fixed salary basis are brought over to regular scale once again would be placed at the bottom of salary structure and would be asked to render service for 5 years on fixed salary which is a meagre 65 or 75% of entry scale of the equivalent post without benefit of any other allowances. By protecting their past service for the purpose of pay and allowances even the Government purpose of cost cutting would not be frustrated because employees would be vacating their regular posts which when filled up the Government will be offered on fixed salary basis. Thus this interdepartmental migration would only bring about change of the head from which the petitioners would be drawing their salaries and there would be no additional outflow from the Government exchequer. 17] The objection of the Government that the petitioners accepted their appointments with full knowledge and therefore they are estopped from raising their grievances is possible of the summery disposal. Neither the recruitment rules nor the advertisement nor the offer of appointment can override the service rules regulations and statutory provisions. Even if the advertisement provided that an appointee shall be placed under fixed pay for a period of 5 years never clarified that even if the rules and regulations so provide the past service of a job aspirant who has been a Government servant already for over 5 years would be wiped out nor could it have been so prescribed. 18] Under the circumstances all the petitions are allowed. In cases where the petitioners were already enjoying pay fixations in regular scales their entire past service shall be protected for the purpose of pay and allowances including leave encashment and post retiral benefits as per their appointments in new posts. Where the petitioners have not been granted regular pay scales even after completion of 5 years of service they would be first brought over to regular pay scale from due dates. Upon their fresh engagements as Teachers their past service similarly shall be protected. It is however clarified that none of the petitioners would have any claim of seniority in their new engagements because in the new organization they cannot carry the seniority of the past service so as to jump over the other existing employees in the cadre. Entire exercises of pay fixation and payment of arrears shall be completed within 6(six) moths from today. Petition disposed of accordingly. Pending application(s) if any also stands disposed of.” Facts in case of Tarendra Reang thus are vitally different. All the petitioners in the said case as noted were holding different Government posts on substantive basis. It was therefore that when they joined service as Government school teachers therefore protected their past service for the purpose of pay fixation and other benefits except seniority in the new cadre. 14. 15. In the result petitions are dismissed. In case of WP(C) No.333 of 2019 the petitioner fleetingly challenged the very scheme of the Government placing a new incumbent in Group C and D post in fixed salary basis for 5 years before bringing over to regular scales. However this is a much wider issue and no serious arguments were advanced on behalf of the petitioner and I have kept this question open if it arises at a future date. 16. Pending application(s) if any stands disposed of. AKIL KURESHI) CJ Pulak

Selections overlooked earlier than 10 years cannot be overseen and be the subject of interference : Supreme Court of India

The court will not interfere in matters like selections for posts in a police force that took place more than a decade ago. This was held in the judgement passed by a bench consisting of Justice L. Nageswara Rao and Justice Aniruddha Bose in the case of Arvind Kumar Tiwari & Others v The State of Uttar Pradesh [W.P/1369/2018]. A notification was issued by the Uttar Pradesh Police Recruitment and Promotion Board for selection to 5389 Sub Inspector posts by promotion from eligible constables and head constables through departmental examination. Constables below the age of 40 who would complete service of three years by the first day of the recruitment were declared as eligible to be a part of the selection. The recruitment process was governed by the Uttar Pradesh Sub-Inspector and Inspector Service Rules 2008 which state that 50% of the posts are to be filled up by direct recruitment and the remaining 50% by promotion on the basis of Departmental examination from among suitable head constables and constables. From the 3358 candidates who were found worthy, only 3248 ultimately joined. Additionally, a few of the candidates were allowed relaxation by the High court of Uttar Pradesh through the Raghuraj Singh v State of Uttar Pradesh [Civil Writ Petition No. 45 of 2016] judgement despite narrowly crossing the age of 40 years as they had proven themselves to be very good candidates. The petitioner, Arvind Kumar Tiwari had applied for the posts mentioned in the notice in 2010 and he was not among the selected candidates. He filed this petition requesting that the results of the examinations conducted to be revealed. The petitioner’s main contention was that there were several unfilled vacancies, so the marks of the examination should be revealed and the benefit allowed to the candidates in the Raghuraj Singh judgement (supra) should be extended to all the other candidates as well. The respondents pointed out the decision of the board which made it clear that a candidate would not be able to seek evaluation in further subjects unless they obtained a minimum 50% marks in the objective type subjects which the petitioner failed to do.

Non Reportable IN THE CIVIL ORIGINAL JURISDICTION Writ PetitionNo.13618 Arvind Kumar Tiwari & Ors .... Petitioner(s The State of Uttar Pradesh & Ors. …. RespondentNo.13319 Writ PetitionNo.6019 Writ PetitionNo.14818 Writ PetitionNo.419 Writ PetitionNo.419 Writ PetitionNo.3319 Writ PetitionNo.2619 Writ PetitionNo.3319 Writ PetitionNo.3719 Writ PetitionNo.4819 Writ PetitionNo.7519 1 | P a g e J U D G M E N T L. NAGESWARA RAO J The complaint of the Writ Petitioners is that their result marks of “Sub Inspector Ranker’s Examination 2000 2008” have not been declared. The further grievance of the Petitioners is that the benefit of the judgment dated 30.01.2017 of this Court in Writ PetitionNo.416 Raghuraj Singh v. State of Uttar Pradesh & Ors.) has not been extended to them. A Notification was issued on 12.06.2010 by U.P. Police Recruitment and Promotion Boardfor selection to 5389 posts of Sub Inspector Service Rules 2008 100 marks 2. Basic Law Construction and Police Procedure100 marks 3. Numerical and Mental Ability Test 50 marks 4. Mental Aptitude Test I.Q. Test Responding 50 marks Except the subject Hindi Essay questions of other subjects would be of objective type. Note 2 to Rule 16(2 stipulates that a candidate who fails to obtain minimum 50 marks in each subject shall not be eligible for promotion. The examination was conducted on 13.03.2011. The Board issued a Notification on 20.04.2011 cancelling 08 questions which were found to be incorrect. Thereafter 3 | P a g e another Notification was issued by the Board on 26.05.2011 cancelling 18 questions which were found to be incorrect. On 11.06.2011 the result of the written examination was declared and 3891 candidates were selected out of whom 3351 candidates qualified after going through the physical test and group discussion. A Writ Petition was filed in the High Court of Judicature at Allahabad by some of the unsuccessful candidates to set aside the result of the written examination. They complained of irregularities in the conduct of written examination. The cancellation of 18 questions was the main point taken by the Writ Petitioners. As the cancellation of questions was not due to any mistake of the candidates a learned Single Judge of the High Court directed the Board to award full marks for the cancelled questions. Having been informed that there were several vacancies the Respondents therein were permitted to send the Writ Petitioners for training if found eligible after revision of the list. The said judgment of the learned Single Judge was challenged by a Special Appeal before the High Court. The Division Bench of the High Court vide interim order dated 30.08.2012 stayed the operation of the judgment of the learned Single Judge and directed that no person shall be sent for training. The State of U.P 4 | P a g e approached this Court questioning the order passed by the Division Bench on 30.08.2012. This Court set aside the order of the Division Bench on 07.10.2013 By an order dated 18.07.2014 this Court took note of the ongoing litigation pertaining to the selection to the posts of Sub Inspectors by promotion in the State of Uttar Pradesh and issued the following directions: a) The posts that have been filled up by successful candidates as has been apprised to us at the Bar are 3358 and the candidates who have joined in the said posts and presently working shall not be b) The U.P. Police Recruitment and Promotion Board Lucknow shall scrutinize the papers of all the Candidates namely the persons who had approached the Writ Court and the Candidates who had not approached the Writ Court and if they have attempted and answered the 18 questions which were wrongly set out they will be awarded full marks for said 18 questions. 5 | P a g e If a candidate has not answered any erroneous question the same shall be proportionately reduced. To clarify the candidate shall only get full marks of questions answered. d) A fresh select list shall be drawn up taking into account the aforesaid marks in respect of 2031 posts which are available in present pertaining to the year 2008. e) The aforesaid exercise shall be completed within a period of three months hence the successful candidates shall be duly intimated and subsequent action shall be taken by the State. From the 3358 candidates who were declared successful by a Notification dated 11.06.2011 3248 candidates actually joined. 110 candidates who were not permitted to join due to their crossing the age of 40 years were given the benefit of relaxation of age pursuant to an order passed by this Court. In Writ Petition No.45 2016 Raghuraj Singh this Court directed the Petitioners to be accommodated in the existing vacancies of Sub Inspectors Ranker if they have obtained 6 | P a g e marks between 190.16667 and 223.33333. It is clear from a perusal of the order that the Petitioners therein were qualified for being selected and promoted as Sub Inspectors Civil Police) Ranker. These Writ Petitions have been filed seeking a direction that the order passed in Raghuraj Singhshould be extended to them after declaring the marks obtained by them. The contention of the Petitioners is that there are several unfilled vacancies. It was submitted on behalf of the Petitioners that there is no reason for which their marks are not declared. It was submitted on behalf of the Petitioners that there can be no objection for declaring their marks and their promotion if they are found eligible. Finally it was argued on behalf of the Petitioners that they are entitled for the same order that was passed in Raghuraj SinghNo.45 2016. On behalf of the State of Uttar Pradesh it was contended that the Petitioners are not entitled for the relief sought as they did not qualify in the selection of the test. According to the Respondents the selection test is conducted in four stages. In the first stage of written examination the candidates failing to obtain 50 marks in each of the four subjects prescribed for written examination shall be filtered out and the candidates 7 | P a g e obtaining minimum 50% marks in every subject shall be included in the list of candidates for physical ability test. The learned counsel appearing for the State referred to a decision of the Board dated 22.02.2011 according to which the papers of objective type answer sheets will be evaluated initially The Hindi Essay answer sheet will be taken up for evaluation thereafter only of those candidates who have obtained minimum 50% in each of the subjects which are of objective type. In other words the candidates who do not secure minimum 50% marks in the three objective type subjects shall be disqualified and the examination paper for Hindi Essay shall not be evaluated. Initially the marks of the candidates who were declared unsuccessful in the examination was not declared. By a Notification dated 17.05.2019 the Board uploaded the marks of all unsuccessful candidates. Several applications were filed seeking information relating to the marks obtained by them in the written examination. In response to the applications filed by 1815 candidates marks have been given to 1637 candidates. The scheme of the examination conducted for selection by promotion to the post of Sub Inspectors of Police is in accordance with Rule 16 of the said Rules. There are three 8 | P a g e subjects which are categorized as objective type. Note 2 of Rule 16 provides that a candidate who fails to obtain minimum of 50% marks in each subject shall not be eligible for promotion. The decision of the Board dated 22.02.2011 makes it clear that unless a candidate obtains minimum 50 marks in the objective type subjects they shall not be entitled to seek evaluation of the Hindi Essay Subject. Such of those candidates who failed to secure 50% marks in the objective type subjects stood disqualified. The Writ Petitioners are in such category. Therefore their Hindi Essay paper was not evaluated and the marks were not declared The decision of the Board was taken prior to the date of the examination and no fault can be found with the same. More than 50 000 candidates appeared for the examination and the short listing of the candidates in stages is within the domain of the Board and cannot said to be arbitrary and discriminatory. 10. The Petitioners are not entitled for extension of the order passed in Raghuraj Singh No. 28838 2019 this Court refused to entertain any challenge to the same selection process on the ground that several years have gone by. Selections conducted more than 10 | P a g e a decade earlier cannot be the subject matter of interference 11. For the aforementioned reasons the Writ Petitions are by this Court. dismissed. .....................................J [ L. NAGESWARA RAO [ ANIRUDDHA BOSE .....................................J New Delhi July 26 2021. 11 | P a g e

Where the personal income of the wife is insufficient she can claim maintenance under Section 125 CrPC: High Court of New Delhi

Section 125 Cr.P.C have been enacted to remedy/reduce the financial sufferings of a lady, who was forced to leave her matrimonial house, so that some arrangements could be made to enable her to sustain herself. A husband cannot avoid his obligation to maintain his wife and children except if any legally permissibly ground is contained in the statutes. This was held in JAIVEER SINGH v. SUNITA CHAUDHARY [CRL.REV.P. 820/2018] in the High Court of New Delhi by single bench consisting of JUSTICE SUBRAMONIUM PRASAD. Facts are that the respondent filed a petition U/S.125 Cr.P.C stating she is unable to sustain herself. The petitioner contended the respondent is  working and earning handsomely. Both the parties had filed their respective affidavits of income. Revision petition is filed against the order of Family Court, directing the petitioner to pay monthly maintenance. Counsel for the petitioner contended that the respondent had by statement  U/S.165 of the Evidence Act made an admission under S.26 of the Act stating she was modelling. He had placed before the court covers of magazines and newspaper articles to establish that the respondent is employed model and is capable of maintaining herself. Learned counsel for the respondent contended that the order does not require any interference by the Court exercising jurisdiction under Section 397/401 of the CrPC. The court referred to the Apex court judgment in Chaturbhuj v. Sita Bai, where in it was held that, “Whether the deserted wife was unable to maintain herself, has to be decided on the basis of the material placed on record. Where the personal income of the wife is insufficient she can claim maintenance under Section 125 CrPC. The test is whether the wife is in a position to maintain herself in the way she was used to in the place of her husband.” The court relied on the judgement of Rajnesh v. Neha, where in the court had laid down criterion for determining the quantum of maintenance, and observed that, “The maintenance amount awarded must be reasonable and realistic, and avoid either of the two extremes i.e. maintenance awarded to the wife should neither be so extravagant which becomes oppressive and unbearable for the respondent, nor should it be so meagre that it drives the wife to penury. The sufficiency of the quantum has to be adjudged so that the wife is able to maintain herself with reasonable comfort.”

IN THE HIGH COURT OF DELHI AT NEW DELHI CRL.REV.P. 820 2018 & CRL.M.A.32656 2018 IN THE MATTER OF: Date of decision: 05th April 2021 JAIVEER SINGH ..... Petitioner Through: Mr. Neerad Pandey Advocate SUNITA CHAUDHARY Through: Mr. D.K.Sharma Advocate ..... Respondent HON BLE MR. JUSTICE SUBRAMONIUM PRASAD SUBRAMONIUM PRASAD J. This revision petition is directed against the order dated 16.07.2018 passed by the Principal Judge Family Court Karkardooma Court Shahdara District in MT 327 14 directing the petitioner husband to pay maintenance at the rate of Rs.17 000 per month to the respondent wife from the date of the order i.e. 16.07.2018. The marriage between the petitioner and the respondent was solemnized on 07.06.1985. Out of the wedlock parties had three children two sons were born in the year 1987 and 1989 respectively and one daughter was born in the year 1991. The daughter passed away in the year 2010. Both the sons have attained majority. They are well settled. It is stated that the parties are living separately since 2012. The respondent wife filed a petition under Section 125 Cr.P.C for grant of maintenance stating that she was treated with cruelty and was thrown out of CRL.REV.P. 820 2018 the house in the year 2012 and that she is unable to sustain herself and needs maintenance from her husband. It is stated that both the sons are well educated and are employed. At the time of petition under Section 125 Cr.P.C the petitioner was a Head Constable. The petition states that the petitioner herein draws a salary of Rs.50 000 per month. Apart from the salary the petitioner has also got agricultural land from which he is earning income. The respondent herein claimed Rs.25 000 per month as maintenance. The petitioner filed a reply denying all the allegations of cruelty. The petitioner stated that he has taken care of his children and has given them good education. The petitioner has stated that the respondent is a working lady earning handsomely. It is stated that the respondent herein participates in Jagrans and does TV serials and she is in a position to take care of herself and it cannot be said that the respondent is unable to maintain herself. Both the parties have filed their respective affidavits of income. By an order dated 20.10.2014 learned Family Judge North east District Vishwas Nagar directed the petitioner to pay Rs.9 500 per month as interim maintenance to the respondent herein. By the impugned order the amount of maintenance has been fixed at Rs.17 000 per month. Heard Mr. Neerad Pandey learned counsel appearing for the petitioner and Mr. D.K.Sharma learned counsel appearing for the respondent and perused the documents. 6. Mr. Neerad Pandey learned counsel appearing for the petitioner states that the respondent has given a Statement under Section 165 of the Indian Evidence Act which reads as under: “Statement of Ms. Sunita Chaudhary w o Shri Jaiveer CRL.REV.P. 820 2018 Singh d o Shri Subedar Ramvir Singh age 38 years housewife r o H. No. Nil Gali No. 2 Azad Nagar Near Railway Station Baraut U.P. On SA I have been living at the above address for the last about one year. I had been living at Bhagirithi Vihar for the period about 7 8 years. At the time of filing of Writ Petition I was residing at Bhagirithi Vihar. I was doing modeling of and on. 1was having very low income from this profession. I never file any income tax return. I am without work for the last 6 7 months. I have Bank Account in UCO Bank Patiala House Delhi 2 SCC 316 has stated that the object of the maintenance proceedings is not to punish a person for his past neglect but to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves and who have a moral claim to support. The Supreme Court has observed as under: 6. The object of the maintenance proceedings is not to punish a person for his past neglect but to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves and who have a moral claim to support. The phrase “unable to maintain herself” in the instant case would mean that means available to the deserted wife while she was living with her husband and would not take within itself the efforts made by the wife after desertion to survive somehow. Section 125 CrPC is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in Captain Ramesh Chander Kaushal v. Veena Kaushal 1978) 4 SCC 70 : 1978 SCC 508 : AIR 1978 SC 1807] falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India. It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife children and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya v. State of Gujarat3 SCC 636 : 2005 CRL.REV.P. 820 2018 SCC787 :2 Supreme 503]. 7. Under the law the burden is placed in the first place upon the wife to show that the means of her husband are sufficient. In the instant case there is no dispute that the appellant has the requisite means. But there is an inseparable condition which has also to be satisfied that the wife was unable to maintain herself. These two conditions are in addition to the requirement that the husband must have neglected or refused to maintain his wife. It has to be established that the wife was unable to maintain herself. The appellant has placed material to show that the respondent wife was earning some income. That is not sufficient to rule out application of Section 125 CrPC. It has to be established that with the amount she earned the respondent wife was able to maintain herself. 8. In an illustrative case where the wife was surviving by begging it would not amount to her ability to maintain herself. It can also be not said that the wife has been capable of earning but she was not making an effort to earn. Whether the deserted wife was unable to maintain herself has to be decided on the basis of the material placed on record. Where the personal income of the wife is insufficient she can claim maintenance under Section 125 CrPC. The test is whether the wife is in a position to maintain herself in the way she was used to in the place of her husband. In Bhagwan Dutt v. Kamla Devi 2 SCC 386 : 1975 SCC 563 : AIR 1975 SC 83] it was observed that the wife should be in a position to is neither maintain a standard of luxurious nor penurious but what is consistent with status of a family. The expression “unable to maintain herself” does not mean that the wife must be absolutely destitute before she can apply for maintenance under Section 125 CrPC." living which CRL.REV.P. 820 2018 The Supreme Court in Rajnesh v. Neha 2 SCC 324 has categorically laid down the criterion for determining the quantum of maintenance. The Supreme Court observed as under: “III. Criteria 77. The objective of granting alimony is to ensure that the dependent spouse is not reduced to destitution or vagrancy on account of the failure of the marriage and not as a punishment to the other spouse. There is no straitjacket formula for fixing the quantum of maintenance to be awarded. 78. The factors which would weigh with the court inter alia are the status of the parties reasonable needs of the wife and dependent children whether the applicant is educated and professionally qualified whether the applicant has any independent source of income whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home whether the applicant was employed prior to her marriage whether she was working during the subsistence of the marriage whether the wife was required to sacrifice her employment opportunities for nurturing the family child rearing and looking after adult members of the family reasonable costs of litigation for a non working wife. 7 SCC 7 Refer to Vinny Parmvir Parmar v. Parmvir Parmar 13 SCC 112 : 2012) 3 SCC290]. 79. In Manish Jain v. Akanksha Jain 15 SCC 801 : 2 SCC Civ) 712] this Court held that the financial position of the parents of the applicant wife would not be material CRL.REV.P. 820 2018 while determining the quantum of maintenance. An order of interim maintenance is conditional on the circumstance that the wife or husband who makes a claim has no independent income sufficient for her or his support. It is no answer to a claim of maintenance that the wife is educated and could support herself. The court must take into consideration the status of the parties and the capacity of the spouse to pay for her or his support. Maintenance is dependent upon factual situations the court should mould the claim for maintenance based on various factors brought before 80. On the other hand the financial capacity of the husband his actual income reasonable expenses for his own maintenance and dependent family members whom he is obliged to maintain under the law liabilities if any would be required to be taken into consideration to arrive at the appropriate quantum of maintenance to be paid. The court must have due regard to the standard of living of the husband as well as the spiralling inflation rates and high costs of living. The plea of the husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife if he is able bodied and has educational qualifications. 12 SCC 303 : 5 SCC596 :4 SCC339] 81. A careful and just balance must be drawn between all relevant factors. The test for determination of maintenance in matrimonial disputes depends on the financial status of the respondent and the standard of living that the applicant was accustomed to in her matrimonial home. 2 SCC 316 : 1 SCC 547 : 1 SCC Cri) 356] The maintenance amount awarded must be reasonable and realistic and avoid either of the two CRL.REV.P. 820 2018 extremes i.e. maintenance awarded to the wife should neither be so extravagant which becomes oppressive and unbearable for the respondent nor should it be so meagre that it drives the wife to penury. The sufficiency of the quantum has to be adjudged so that the wife is able to maintain herself with reasonable 82. Section 23 of the HAMA provides statutory guidance with respect to the criteria for determining the quantum of maintenance. Sub sectionof Section 23 of the HAMA provides the following factors which may be taken into consideration : position and status of the parties reasonable wants of the claimant if the petitioner claimant is living separately the justification for the same value of the claimant s property and any income derived from such property income from claimant s own earning or from any other source. 83. Section 20(2) of the DV Act provides that the monetary relief granted to the aggrieved woman and or the children must be adequate fair reasonable and consistent with the standard of living to which the aggrieved woman was accustomed in her matrimonial home. 84. The Delhi High Court in Bharat Hegde v. Saroj Hegde 140 DLT 16] laid down the following factors to be considered for determining maintenance :“1. Status of the parties. 2. Reasonable wants of the claimant. 3. The independent income and property of the CRL.REV.P. 820 2018 food clothing 4. The number of persons the non applicant has to maintain. 5. The amount should aid the applicant to live in a lifestyle as he she enjoyed matrimonial home. 6. Non applicant s liabilities if any. 7. Provisions shelter education medical attendance and treatment etc. of the applicant. 8. Payment capacity of the non applicant. 9. Some guesswork is not ruled out while estimating the income of the non applicant when all the sources or correct sources are not 10. The non applicant to defray the cost of 11. The amount awarded under Section 125 CrPC is adjustable against the amount awarded under Section 24 of the Act.” 85. Apart from the aforesaid factors enumerated hereinabove certain additional factors would also be relevant for determining the quantum of maintenance 10. A perusal of the law laid down by the Supreme Court would indicate that the proceedings under Section 125 Cr.P.C have been enacted to remedy reduce the financial sufferings of a lady who was forced to leave CRL.REV.P. 820 2018 her matrimonial house so that some arrangements could be made to enable her to sustain herself. It is the duty of the husband to maintain his wife and to provide financial support to her and their children. A husband cannot avoid his obligation to maintain his wife and children except if any legally permissibly ground is contained in the statutes. In the present case the petitioner relies only on the statement given by the respondent under Section 165 Indian Evidence Act. A perusal of the above mentioned statement would show that though the respondent admits that she was doing modelling of and on but she was earning very low income from modelling. That statement by itself does not mean that the respondent is able to sustain herself. Her affidavit of income does not show that she is earning enough to sustain herself. The onus then shifts on the petitioner to show as to how much the respondent is earning and that is sufficient to maintain herself. The petitioner has not brought any evidence to establish that the respondent is earning sufficient to maintain herself. It is well settled and the Supreme Court has time and again laid down that newspaper clippings etc. are not evidence. Apart from filing a few covers of magazines and one newspaper clipping nothing has been filed by the petitioner to substantiate that the respondent is earning sufficient income to maintain herself. The petitioner at present is working as an ASI both his sons are majors and are well employed and the petitioner is not under any obligation to maintain his two children but he is under a legal obligation to maintain his wife. The respondent herein is forced to stay alone. When pointedly stated as to whether the petitioner has filed any petition for divorce the learned counsel for the petitioner states that the children did not want the petitioner to take divorce from his wife. In view of the above it CRL.REV.P. 820 2018 becomes the moral and legal obligation of the petitioner husband to maintain his wife. Considering the fact that the petitioner is an ASI having virtually no other liability he can pay Rs.17 000 per month to the respondent wife who otherwise is not able to maintain herself. It may be stated here that though in Rajnesh v. Neha the Supreme Court has held that the maintenance is payable from the date of the application and the impugned judgment directs the petitioner herein to pay maintenance only from the date of the order keeping in view the fact that the respondent has not challenged the impugned order this Court is not inclined to use its suo motu powers to direct the petitioner to pay maintenance at the rate of Rs.17 000 per month from the date of the filing of the petition under Section 125 Cr.P.C. 13. The scope of the jurisdiction of the High Court under Sections 397 401 Cr.P.C. read with Section 482 Cr.P.C. has been explained in Amit Kapoor v. Ramesh Chander 9 SCC 460 the Supreme Court observed as under: “12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well founded error and it may not be appropriate for the court to scrutinise the orders which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous there is no compliance with the provisions of law the finding recorded is based CRL.REV.P. 820 2018 on no evidence material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes but are merely indicative. Each case would have to be determined on its own 13. Another well accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. 20. The jurisdiction of the court under Section 397 can be exercised so as to examine the correctness legality or propriety of an order passed by the trial court or the inferior court as the case may be. Though the section does not specifically use the expression “prevent abuse of process of any court or otherwise to secure the ends of justice” the jurisdiction under Section 397 is a very limited one. The legality propriety or correctness of an order passed by a court is the very foundation of exercise of jurisdiction under Section 397 but ultimately it also requires justice to be done. The jurisdiction could be exercised where there is palpable error non compliance with the provisions of law the decision is completely erroneous or where the judicial discretion is exercised arbitrarily. On the other hand Section 482 is based upon the maxim quando lex aliquid alicui concedit concedere videtur id sine quo res ipsa esse non potest i.e. when the law gives anything to anyone it also gives all those things without which the thing itself would be unavoidable. The section confers very wide power on the Court to do justice and to ensure that the process of the court is not permitted to be abused.”CRL.REV.P. 820 2018 14. The petitioner has not been able to point out any perversity in the impugned order. The petitioner is an ASI and is earning well so as to pay Rs.17 000 to his wife who has no stable source of income. No material has been placed on record to show that the respondent is able to sustain herself. Magazine covers are not sufficient evidence to demonstrate that the respondent can sustain herself. In view of the above this Court does not find any infirmity with the impugned judgment. Accordingly the revision petition is dismissed along with the pending application. SUBRAMONIUM PRASAD J APRIL 05 2021 CRL.REV.P. 820 2018

Not allowed to face the ordeal of deal as no grave suspicion raised against the respondents: The High of Calcutta

The family matter linked to Section 498A, 307 and 34 of the Indian Penal Code, allowed petitioner number 4 &5 to not face the ordeal of trial as there was no grave suspicion from the materials on record. Petitioners 1,2 &3 have to face the trial. The High Court of Calcutta led through the single bench by Mr Justice Tirthankar Ghosh in the case of Sukla Mukherjee & Ors. v. the State of West Bengal [CRR/2441/2012]. The instant case was initiated on the basis of a complaint addressed to the Officer-in-Charge, Kanksa Police Station by Bandana Mukherjee. The facts of the case are that the complainant was married to Gobina Mukherjee about 1.5 years back. Complainant alleges that after her marriage she was mentally and physically tortured by her mother-in-law Sukla Mukherjee; Murari Mohan Mukherjee, father-in-law, and Murari Mohan Mukherjee, brother-in-law. However, on 23 July 2011, the aforesaid three accused persons assaulted her and her husband Gobinda Mukherjee. Her brother-in-law that is Manotosh Mukherjee poured kerosene over her body, and she somehow fled away to safety. She also alleged that her sister-in-law, Anjana Bhattacherjee and her husband, Pradip Bhattacherjee were also involved. The counsel from the petitioners submitted that the peculiarity of the case is that it has been initiated in order to grab the property, the complainant has left out her husband and has implicated the rest of the family members to attend her I’ll terrier purpose. The court concluded that “I have perused the statement of the complainant as also the other witnesses including the injury report and the statement made therein by the complainant to Dr. Rathin Mukherjee. In the letter of complaint although there are specific role in respect of the physical and mental torture being inflicted upon the complainant by petitioner Nos. 1, 2 and 3 but no definite role of petitioner Nos. 4 and 5 are appearing.” The High Court of Calcutta directed “In view of the materials appearing in the records of the case which include the complaint, the injury report and the statement of witnesses it can be said that there may be some suspicion against the petitioner No. 4 and 5 but no grave suspicion arise from the aforesaid materials on record. Having regard to the settled principle of law under such circumstances, I am of the opinion that the petitioner No. 4 and 5 should not be allowed to face the ordeal of trial.”

IN THE HIGH COURT AT CALCUTTA CRIMINAL REVISIONAL JURISDICTION THE HON’BLE JUSTICE TIRTHANKAR GHOSH C.R.R. 24412 Sukla Mukherjee & Ors. vs. The State of West Bengal For the Petitioners Mr. Jayanta Narayan Chatterjee For the State Mr. Nazir Ahmed Mr. Supreem Naskar Ms. Ritushree Banerjee Mr. Rana Mukherjee Ms. Sujata Das Ms. Debjani Sahu Heard on : 21.09.2021 and 27.09.2021 Judgment on Tirthankar Ghosh J: The present revisional application has been preferred challenging the charge sheet filed in connection with Kanksa Police Station Case No. 167 of 2011 dated July 24 2011 under Sections 498A 307 34 of the Indian Penal The instant case was initiated on the basis of complaint addressed to the Officer in Charge Kanksa Police Station by Bandana Mukherjee. The sum and substance of the allegations in the letter of complaint are as follows: The complainant was married to Gobinda Mukherjee about 1 ½ years back and the said marriage was a social marriage. The complainant alleges that immediately after her marriage she was mentally and physically tortured by her mother in law Sukla Mukherjee father in law Murari Mohan Mukherjee and brother in law Manotosh Mukherjee. To that effect earlier also she informed the police station and somehow or the other such dispute was resolved. However on 23rd July 2011 at about 9.00 p.m. the aforesaid 3 accused persons assaulted her and her husband Gobinda Mukherjee and the younger brother in law i.e. Manotosh Mukherjee poured kerosene over her body when she somehow fled away to save herself. Lastly she alleged that over this incident her sister in law Anjana Bhattacharjee and her husband Pradip Bhattacharjee were also involved. Learned Advocate for the petitioners submits that the peculiarity of the present case is that the same has been initiated in order to grab the property. The complainant has left out her husband and implicated rest of the family members of matrimonial home in order to attain her ulterior purpose. In view of the contentions advanced by the petitioners Mr. Rana Mukherjee learned Advocate appearing for the State was directed to produce the Case Diary. Accordingly the Case Diary was produced before this Court. It reflects from the Case Diary that the Investigating Agency on conclusion of investigation in connection with Kanksa Police Station Case No. 167 of 2011 dated 24.07.2011 was pleased to submit charge sheet against the 5 petitioners who have approached this Court. I have perused the Case Diary and the materials collected by the Investigating Agency to arrive at their conclusion and assessed whether a case under Sections 498A 307 34 of the Indian Penal Code has been made out against the accused petitioners and I have found that the prosecution in order to prove its case has relied upon 9 witnesses which includes the complainant Bandana Mukherjee Gobinda Mukherjee husband of the complainant Sanyashi Mazumdar acquaintance of the complainant Bidhan Boral neighbour of the complainant Dipak Bose neighbour of the complainant Dr. Rathin Mukherjee and 3 Police Authorities namely Sub Inspector Partha Ghosh Ram Ranjan Patra and Sukumar Sen of Kanksa Police Station. I have perused the statement of the complainant as also the other witnesses including the injury report and the statement made therein by the complainant to Dr. Rathin Mukherjee. In the letter of complaint although there are specific role in respect of the physical and mental torture being inflicted upon the complainant by petitioner Nos. 1 2 and 3 but no definite role of petitioner Nos. 4 and 5 are appearing. The injury report which has also been relied upon by the prosecution do not refer to any complicity of the petitioner Nos. 4 and 5. In fact in the injury report which is a statement made by the complainant Bandana Mukherjee to the doctor it has been stated as follows: “She was been assaulted by her father in law and mother in law and brother in law. She was kicked on abd and was poured kerosene with attempt to homicidal burn.” The only allegation made against the petitioner Nos. 4 and 5 are that they were also involved in the offence. In view of the materials appearing in the records of the case which include the complaint the injury report and the statement of witnesses it can be said that there may be some suspicion against the petitioner No. 4 and 5 but no grave suspicion arise from the aforesaid materials on record. Having regard to the settled principle of law under such circumstances I am of the opinion that the petitioner No. 4 and 5 should not be allowed to face the ordeal of trial. Consequently the further continuance of the prosecution arising out of the Kanksa Police Station Case No. 1611 dated 24.07.2011 and the orders passed therein so far as the petitioner No. 4 and 5are concerned are hereby quashed. However the Learned Trial Court would invoke the provisions of Section 319 of the Code of Criminal Procedure in case materials surface against them in course of evidence. As there are materials appearing against the petitioner No.1petitioner No. 2and petitioner No. 3 the trial should proceed against them. As such the Learned Magistrate would take steps for progress of the trial of the case and take the same to its logical conclusion within a reasonable period of time. Thus CRR 24412 is partly allowed. Pending application if any is consequently disposed of. Interim order if any is hereby vacated. Case diary be returned to the Learned Advocate appearing for the All parties shall act on the server copy of this judgment duly downloaded from the official website of this Court. Urgent photostat certified copy of this judgment if applied for be supplied to the parties upon compliance with all requisite formalities.

Chairman cannot extend office once retired as a member of Standing Committee as per S.21 Maharashtra Municipal Corporations Act, 1949: Bombay High Court

As per section 21 of the Maharashtra Municipal Corporations Act, 1949, the chairman shall vacate the office as soon as he ceases to be a member of the committee. Therefore, there is no legal basis to contend that he shall be deemed to continue as chairman. This judgment was passed in the case of Bhagwan Shankar Bhalerao vs. State of Maharashtra [Writ Petition no.10801/2021] by a Double Bench consisting of Hon’ble Justice Surendra P. Tavade and Hon’ble Justice S.J. Kathawalla. The present writ petition pertains to the reconstitution of the Standing Committee and election of a chairman to the Standing Committee of the Ulhasnagar Municipal Corporation (the Corporation). By a resolution 8 members of the Standing Committee retired and 8 new members were appointed in place of the retiring members. This was consistent with the mandate and section 20 of the Maharashtra Municipal Corporations Act, 1949 (the Act). Thereafter, the Municipal Secretary with the consent of the collector  called for a special meeting to elect the Chairman of Standing Committee as provided by Section 21 of the Act. Due to Covid the state government vide its order directed all Municipal Corporation, collectors, etc. to postpone the election. Later on it also extended the tenure of the retired chairman and members of the Standing committee who retired in view of Covid. The Petitioner prayed for a writ of certiorari and/or any other writ and/or order and/or direction in the nature of certiorari to quash and set aside the notice dated April 8th, 2021. The High Court of Bombay observed that clause (a) of the prayer is infructuous since the state government while issuing notification of 6th May 2021, accepted that it would not apply to the reconstituted Standing Committee of the Corporation. The High Court was of the opinion that, to answer clause (b) they have to decide whether the tenure of Shri Patil as the Chairman of the Standing Committee concluded by reason of him retiring as a member of the Standing Committee?; whether his office can continue only up to his membership?; Whether the Standing Committee constituted as of 1st April, 2021 is barred, under Section 21(5) of the Act from appointing a Chairman of the Standing Committee by reason of thirty days from the date of its reconstitution having elapsed? The Bombay High Court held that on a bare reading of section 20 and section 21 of the Act, a Chairman of the Standing Committee must first and foremost be a member of the Standing Committee. In the present matter Shri Patil was not a member of the same. Section 21(3) of the Act clearly stipulates that the chairman shall vacate the office as soon as he ceases to be a member of the committee. therefore, there is no legal basis to contend that he shall be deemed to continue as chairman. As per section 20(3) read with section 20(4) and 20(5) of the Act the period of one year, which is the term of the Standing Committee before it is reconstituted after 8 persons retiring and 8 fresh appointments, will be from the first day of month in which the first meeting of the Corporation to appoint its Standing Committee took place and every succeeding year thereafter as determined from this date. And as far as postponement of the election is concerned, the term of members cannot be extended beyond 1st April of the next year. Therefore his office will continue only till membership and cannot be extended. The High Court observed, as per section 21(5) of the Act If there is inaction or indecision on the part of the Standing Committee in appointing its own Chairman within 30 days, the position of Chairman is determined by the alternative method of the Corporation appointing a Chairman within 15 days thereafter. Therefore the State Government could have postponed the elections of Chairman by the members of the Standing Committee. Even as per the lockdown notification some activities were allowed and it was for the corporation and standing committee to determine if the election could have proceeded with a physical meeting or virtual meeting. Therefore, time lost in appointing a Chairman cannot result in Section 21(5) being invoked in order for the Standing Committee to lose their entitlement to appoint their own Chairman under Section 21 of the Act.

on 09 06 2021 on 22 03 sg1 911. wp951 21.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAYCIVIL APPELLATE JURISDICTIONWRIT PETITION NO.951 OF 2021O.K. Marine Through its Sole Proprietor Mr. Munawar Amirali Mukadam..Petitionerv s.Oil And Natural Gas Corporation Ltd. And Ors...Respondents….Mr. R.D. Soni i b. Irvin D’souza for the Petitioner.Dr. Abhinav Chandrachud a w. Mr. Nishit Dhruva Mr. Prakash Shinde Ms. Khushbu Chhajed Mr. Abhishek Bhavsar and Ms. Alisha Shah i b.MDP & Partners for Respondent Nos. 1 and 3.Mr. Kunal Gaikwad for Respondent No.4.Mr. Karl Tamboly a w. Mr. Ramiz Shaikh and Mr. Akshay Bafna i b. BafnaLaw Associates for Respondent No.5. ….CORAM: S.C. GUPTE & M.S. KARNIK JJ.DATE : 8 JUNE 2021.ORAL JUDGMENTwith each other which would restrict competitiveness orintroduce cartilisation in the bidding process thereby offending Section 2of the Integrity Pact. 3.Section 2 of the Integrity Pact is quoted below: on 09 06 2021 on 22 03 sg3 911. wp951 21.doc Section 2 Commitments of the Bidder contractor2. The Bidder Contractor will not enter with otherBidders into any undisclosed agreement orunderstanding whether formal or informal. Thisapplies in particular to prices specifications certifications subsidiary contracts submission or non submission of bids or any other actions to restrictcompetitiveness or to introduce cartelisation in thebidding process.4.It is the Petitioner’s case that whilst it is correct that thePetitioner and the proprietor of Royal Traders are a son and father duo that circumstance by itself does not imply any undisclosed agreement orunderstanding between the two whether formal or informal or amountto any action so as to restrict competitiveness or introduce cartilisation inthe bidding process.5.After this matter was heard earlier by this Court this Court by its order dated 29 April 2021 permitted the Petitioner to file arepresentation with the competent authority of Respondent ONGC and thelatter was directed to pass a reasoned order on that representation.Pursuant to this order the Petitioner did file a detailed representation tothe competent authority of ONGC who by its detailed order dated 5 May2021 rejected the representation on a composite statement of reasons. Inthe meantime it appears that the subject contract was awarded toRespondent Nos. 4 and 5 who were successful bidders upon opening ofcommercial bids the award was notified on 12 February 2021 and pursuant to the award formal contracts were executed on 8 March 2021and 22 March 2021 respectively. on 09 06 2021 on 22 03 sg4 911. wp951 21.doc 6.Learned Counsel for the Petitioner challenges the impugnedaward of contract to Respondent Nos. 4 and 5 by denying opportunity tothe Petitioner on the following grounds:(a)It is firstly submitted that the Petitioner’s bid does notinvolve any breach of the Integrity Pact. It is submitted thatthere is no prohibition on relatives participating in thetendering process. It is submitted that the original clauseprohibiting relationship of a bidder with another directly orthrough common parties that put them in a position to haveaccess to each other’s information about or to influence theother bid has been expressly done away with. It is submittedthat the modified provision simply prohibits entering intowith other bidders of an undisclosed agreement orunderstanding whether formal or informal suchunderstanding being in particular reference to prices specifications certifications subsidiary contracts submissionor non submission of bids or any other actions so as torestrict competitiveness or to introduce cartilisation of thebidding process.(b) It is submitted that the conclusion of the Respondentemployer of breach of the Integrity Pact is a matter ofinference and presumption. It is submitted that thePetitioner’s tender cannot be rejected simply on the basis ofsurmises especially when his bid has been found to betechnically responsive. on 09 06 2021 on 22 03 sg5 911. wp951 21.doc 6 SCC 651 on 09 06 2021 on 22 03 sg6 911. wp951 21.doc 7.None of the grounds urged by the Petitioner in support of hischallenge to the acceptance of the bids of Respondent Nos. 4 and 5 by theemployer ONGC commends itself to us. Firstly it has been borne out bythe record that the Petitioner and his father though shown as proprietorsof different concerns operate from the same premises. The letterheads ofthe two bear the same address though after this matter was broughtbefore this Court changes have been made in their respective letterheadsin hand suggesting that whereas the Petitioner operates from Room Nos.1 and 2 on the first floor of the building his father operates from RoomNos. 3 and 4 on the same floor. The address of the two is borne out bytheir respective MSME

The mere fact that the appellant was not brave enough to conceal where the victim was hiding did not make him a part of the unlawful assembly: Supreme Court Of India

The possibility of often people gathering at the scene of offence out of curiosity but that did not make them share the common object of the assembly. The Court must guard against the possibility of convicting mere passive onlookers who did not share the common object of the unlawful assembly. There must be reasonable direct or indirect circumstances that lend assurance to the prosecution case that they shared a common object of the unlawful assembly. Not only should the members be part of the unlawful assembly but should share the common object at all stages. Such an observation was made by the Hon’ble Supreme Court Of India before Hon’ble Justice Sanjay Kishan Kaul &  Hon’ble Justice M.M. Sundresh in the matter of TAIJUDDIN vs State of Assam & ors [CRIMINAL APPEAL NO._1526__ of 2021] on 01.12.2021. The facts of the matter were that on the basis of a land dispute the life of one Abdul Wahab (“the victim”) was taken by a mod armed with deadly weapons. When the mob approached the victim’s house the victim tried to run and take shelter in the house of one Shorab but the appellate directed and told them the whereabouts of the victim & consequently he was murdered and thrown in the Brahmaputra river. The Hon’ble Supreme Court observed that the testimony of the PW-8 was not read correctly and PW-8 wasn’t an eye-witness to the crime and only narrating what he had heard from other people as confessed by him during cross-examination. Additionally, the Hon’ble Supreme Court put reliance on the case of Subal Ghorai v. State of West Bengal (2013) 4 SCC 607 wherein it was held that constructive liability cannot be stretched to lead to the false implication of innocent bystanders. The Hon’ble Supreme Court also referred to the case of Ranjit Singh v. the State of Punjab and Ors (2013) 16 SCC 752 wherein the court held that “the aspect of a faction-ridden village community has a tendency to implicate innocents along with the guilty especially when a large number of assailants are involved in the commission of the offense – which is a matter of common knowledge. The depositions have to be carefully scrutinised in such a scenario.” Furthermore, the Hon’ble Supreme Court observed “On the touchstone of the aforesaid judgments, taking into consideration the inconsistency in the testimonies – inasmuch as the family members never even pointed a finger at the appellant as also some of the other witnesses, while the witnesses who did point a finger only assigned the role of pointing out the place where the victim was hiding, coupled with his natural presence at the site, we cannot, thus, say that by any stretch of the imagination the case against the appellant has been proved beyond a reasonable doubt or for that matter really no case seems to have been proved against the appellant given the role assigned to him in the testimony of the witnesses. In our view, the appellant is entitled to a clean acquittal in the given facts.” Finally, Hon’ble Supreme Court quashed the charges framed under Section 147/148/302/201/149 of IPC, 1872 and acquitted the appellate. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur The facts of the matter were that on the basis of a land dispute the life of one Abdul Wahab (“the victim”) was taken by a mod armed with deadly weapons. When the mob approached the victim’s house the victim tried to run and take shelter in the house of one Shorab but the appellate directed and told them the whereabouts of the victim & consequently he was murdered and thrown in the Brahmaputra river. The Hon’ble Supreme Court observed that the testimony of the PW-8 was not read correctly and PW-8 wasn’t an eye-witness to the crime and only narrating what he had heard from other people as confessed by him during cross-examination. Additionally, the Hon’ble Supreme Court put reliance on the case of Subal Ghorai v. State of West Bengal (2013) 4 SCC 607 wherein it was held that constructive liability cannot be stretched to lead to the false implication of innocent bystanders. The Hon’ble Supreme Court also referred to the case of Ranjit Singh v. the State of Punjab and Ors (2013) 16 SCC 752 wherein the court held that “the aspect of a faction-ridden village community has a tendency to implicate innocents along with the guilty especially when a large number of assailants are involved in the commission of the offense – which is a matter of common knowledge. The depositions have to be carefully scrutinised in such a scenario.” Furthermore, the Hon’ble Supreme Court observed “On the touchstone of the aforesaid judgments, taking into consideration the inconsistency in the testimonies – inasmuch as the family members never even pointed a finger at the appellant as also some of the other witnesses, while the witnesses who did point a finger only assigned the role of pointing out the place where the victim was hiding, coupled with his natural presence at the site, we cannot, thus, say that by any stretch of the imagination the case against the appellant has been proved beyond a reasonable doubt or for that matter really no case seems to have been proved against the appellant given the role assigned to him in the testimony of the witnesses. In our view, the appellant is entitled to a clean acquittal in the given facts.” Finally, Hon’ble Supreme Court quashed the charges framed under Section 147/148/302/201/149 of IPC, 1872 and acquitted the appellate. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur The Hon’ble Supreme Court observed that the testimony of the PW-8 was not read correctly and PW-8 wasn’t an eye-witness to the crime and only narrating what he had heard from other people as confessed by him during cross-examination. Additionally, the Hon’ble Supreme Court put reliance on the case of Subal Ghorai v. State of West Bengal (2013) 4 SCC 607 wherein it was held that constructive liability cannot be stretched to lead to the false implication of innocent bystanders. The Hon’ble Supreme Court also referred to the case of Ranjit Singh v. the State of Punjab and Ors (2013) 16 SCC 752 wherein the court held that “the aspect of a faction-ridden village community has a tendency to implicate innocents along with the guilty especially when a large number of assailants are involved in the commission of the offense – which is a matter of common knowledge. The depositions have to be carefully scrutinised in such a scenario.” Furthermore, the Hon’ble Supreme Court observed “On the touchstone of the aforesaid judgments, taking into consideration the inconsistency in the testimonies – inasmuch as the family members never even pointed a finger at the appellant as also some of the other witnesses, while the witnesses who did point a finger only assigned the role of pointing out the place where the victim was hiding, coupled with his natural presence at the site, we cannot, thus, say that by any stretch of the imagination the case against the appellant has been proved beyond a reasonable doubt or for that matter really no case seems to have been proved against the appellant given the role assigned to him in the testimony of the witnesses. In our view, the appellant is entitled to a clean acquittal in the given facts.” Finally, Hon’ble Supreme Court quashed the charges framed under Section 147/148/302/201/149 of IPC, 1872 and acquitted the appellate. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur Additionally, the Hon’ble Supreme Court put reliance on the case of Subal Ghorai v. State of West Bengal (2013) 4 SCC 607 wherein it was held that constructive liability cannot be stretched to lead to the false implication of innocent bystanders. The Hon’ble Supreme Court also referred to the case of Ranjit Singh v. the State of Punjab and Ors (2013) 16 SCC 752 wherein the court held that “the aspect of a faction-ridden village community has a tendency to implicate innocents along with the guilty especially when a large number of assailants are involved in the commission of the offense – which is a matter of common knowledge. The depositions have to be carefully scrutinised in such a scenario.” Furthermore, the Hon’ble Supreme Court observed “On the touchstone of the aforesaid judgments, taking into consideration the inconsistency in the testimonies – inasmuch as the family members never even pointed a finger at the appellant as also some of the other witnesses, while the witnesses who did point a finger only assigned the role of pointing out the place where the victim was hiding, coupled with his natural presence at the site, we cannot, thus, say that by any stretch of the imagination the case against the appellant has been proved beyond a reasonable doubt or for that matter really no case seems to have been proved against the appellant given the role assigned to him in the testimony of the witnesses. In our view, the appellant is entitled to a clean acquittal in the given facts.” Finally, Hon’ble Supreme Court quashed the charges framed under Section 147/148/302/201/149 of IPC, 1872 and acquitted the appellate. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur Furthermore, the Hon’ble Supreme Court observed “On the touchstone of the aforesaid judgments, taking into consideration the inconsistency in the testimonies – inasmuch as the family members never even pointed a finger at the appellant as also some of the other witnesses, while the witnesses who did point a finger only assigned the role of pointing out the place where the victim was hiding, coupled with his natural presence at the site, we cannot, thus, say that by any stretch of the imagination the case against the appellant has been proved beyond a reasonable doubt or for that matter really no case seems to have been proved against the appellant given the role assigned to him in the testimony of the witnesses. In our view, the appellant is entitled to a clean acquittal in the given facts.” Finally, Hon’ble Supreme Court quashed the charges framed under Section 147/148/302/201/149 of IPC, 1872 and acquitted the appellate.

IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO._1526__ of 2021 Arising out of Special Leave to AppealNo.78119 … Appellant STATE OF ASSAM & ORS JUDGMENT SANJAY KISHAN KAUL J A land dispute caused the loss of life of Abdul Wahab PW 6 daughter of the deceased) PW 10and PW 11did not mention the appellant at all. PW 1 the informant attributed to the appellant the role of pointing out the location of the deceased. A perusal of his testimony shows that he stated “Taijuddin showed that my father Abdul Wahab was inside the house of Sorab.” Nothing more is stated qua the appellant. PW 4 PW 5 and PW 15 once again stated to the same effect i.e. that the appellant pointed out the location of the deceased. Interestingly PW 15 is stated to have controverted the testimony of PW 1 while going along with PW 4 and once again contradicting the testimony of PW 7 Learned counsel for the appellant referred to a sketch map of the site placed on record to submit that house “F” belongs to the appellant which was almost adjacent to the house where the deceased was found That explains the presence of the appellant at 6:30 a.m. in the morning when the incident is stated to have occurred Our attention was invited to how the High Court had dealt with the aspect of conviction of the appellant which was based on the testimony of PW 7 and PW 8. PW 7 stated that the appellant was armed he assaulted the deceased and also pointed out where the deceased was hiding. However PW 7 turned hostile but the High Court found that the relevant testimony of the hostile witness could be segregated to the extent of pointing out the location of the deceased. The discussion about the appellant is contained in para 33 of the impugned judgment Relevant in this behalf is PW 4’s statement to the effect that when the accused persons moved forward and were about to cross the house of Shorab the appellant told them “where are you proceeding Abdul Wahab is there in the house of Shorab.” It is only thereafter that the accused persons surrounded the house of Sohrab and mounted an assault on Abdul Wahab causing his death. The testimony of PW 7 was believed to the extent it supported what other prosecution witnesses PW 1 PW 4 and PW 5 had stated showing the presence of the appellant at the place of occurrence and helping other accused persons in tracing out the victim. PW 8 and another independent witness are also noticed as having stated that the appellant along with others chased the victim. The impugned judgment takes note of the testimony of PW 8 that he was scared of seeing the occurrence and did not come out of his house. The fact that PW 8 categorically stated that he had seen the appellant along with other accused persons chasing the victim was stated to be the testimony which was undented and could not be disbelieved only because he did not come out of the house out of fear. A finding was thus reached that the appellant accompanied the accused persons in chasing the victim and it was the appellant who assisted other members of unlawful assembly to locate the victim in the house of Sohrab. On this basis a common intention was found of seeking to kill the victim especially when the accused persons being armed with deadly weapons chased the victim with the war cry “catch and kill Wahab” and the appellant also accompanied them and actively participated and guided others to locate It was the submission of the learned counsel for the appellant that the testimony of PW 8 had not been read correctly. Learned counsel invited our attention to the cross examination of PW 8 wherein he stated that he did not see who had killed the victim tied him and carried him away. He stated that “...later on I heard about it. Today I have stated whatever I had heard.” He further went on to state “I have mentioned the names of thepersons after hearing them from other people.” The aforesaid testimony leaves us in no manner of doubt that PW 8 was not a witness who had seen the incident but he believed what others said and narrated the same. Thus the reliance placed in the impugned judgment on the testimony of PW 8 to rope in the appellant under Section 149 of the IPC cannot be sustained. This is more so as PW 7 is also a hostile witness In our view learned counsel for the appellant rightly contended that the mere fact that the appellant was not brave enough to conceal where the victim was hiding did not make him a part of the unlawful Learned counsel for the appellant sought to rely upon the judgment of this Court in Subal Ghorai v. State of West Bengal1 more specifically paras 42 and 53 to canvas that constructive liability cannot be stretched to lead to the false implication of innocent bystanders. This Court considered the possibility of often people gathering at the scene of offence out of curiosity but that did not make them share the common object of the assembly. The Court must guard against the possibility of convicting mere passive onlookers who did not share the common object of the unlawful assembly. There must be reasonable direct or indirect circumstances which lend assurance to the prosecution case that they shared common object of the unlawful assembly. Not only should the members be part of the unlawful assembly but should share the common object at all stages. This has to be based on the conduct of the members and the behaviour at or near the scene of the offence the motive for the crime the arms carried by them and such other relevant considerations Once we examine the factual matrix of the case at hand the presence of the appellant is explained at the early hours in the morning because of his house being almost adjacent to where the deceased was hiding. He certainly did not come along with the mob. That does not preclude him from being part of the mob or acquiring the common intention at that stage but then that is not what happened. He was carrying no weapon and he did not assault anybody. The finding of his accompanying the mob is not sustainable on the basis of the evidence discussed above. The only evidence of his involvement is that he pointed to the house where the victim was hiding. Given that a murderous mob fully armed was hunting for him the appellant at best can be said not to be brave enough to conceal the deceased or even to have not pointed out where he was but that by itself cannot rope in the appellant under Section 149 of the Learned counsel for the appellant also referred to the judgment of this Court in Ranjit Singh v. State of Punjab and Ors.2 Specifically para 39 where the Court referred to the aspect of faction ridden village community having a tendency to implicate innocents along with the guilty especially when a large number of assailants are involved in commission of the offence which is a matter of common knowledge The depositions have to be carefully scrutinised in such a scenario Learned counsel also referred to the judgment in C. Magesh and Ors. v. State of Karnataka3 especially paras 45 and 46 to emphasise the importance of evidence being evaluated on the touchstone of consistency The eye witness require a careful assessment and their testimony must be evaluated for its credibility 14. On the touchstone of the aforesaid judgments taking into consideration the inconsistency in the testimonies inasmuch as the family members never even pointed a finger at the appellant as also some of the other witnesses while the witnesses who did point a finger only assigned the role of pointing out the place where the victim was hiding coupled with his natural presence at site we cannot thus say that by any stretch of imagination the case against the appellant has been proved beyond reasonable doubt or for that matter really no case seems to have been proved against the appellant given the role assigned to him in the testimony of the witnesses. In our view the appellant is entitled to a clean acquittal in the given facts The conviction under Section 147 148 302 201 149 is set aside The appeal is accordingly allowed leaving the parties to bear their own The appellant be released forthwith if not required in any other December 01 2021 Sanjay Kishan Kaul

Not mandatory to produce the accused before the Gazetted Magistrate under Section 50 of NDPS Act if he voluntary waives this right: The High Court of Delhi

The person to be searched is mandatorily required to be taken by the empowered officer, for the conduct of the proposed search before a Gazetted Officer or Magistrate, only “if he so requires”, upon being informed of the existence of his right to be searched before a Gazetted Officer or Magistrate and not if he waives his right to be so searched voluntarily, and chooses not to exercise the right provided to him under Section 50 of the NDPS Act. The aforesaid was the landmark judgment given by the Delhi High Court in the case of Nabi Alam v. State (Govt. Of NCT Of Delhi) [BAIL APPLN. 2641/2018 & CRL.M.(BAIL) 555/2021] by a two judge bench comprising Justice Siddharth Mridul and Justice Talwant Singh on 4th June 2021. The facts of the case are as follows. Upon the reception of a tip-off by Sub-Inspector Vinod, Narcotics Cell, and Police Station-Crime Branch on 27.07.2017, it was brought to his notice that two people namely Nabi Alam (the present applicant/accused) and Mohd. Aakil were allegedly indulging in the supply of Heroin in Delhi, which the applicant/accused and his accomplice obtained from Badaiyu/Bareli and that they would be supplying a big consignment of the contraband Heroin between 2.00 p.m. to 2.30 p.m. near traffic light at Chanakya Place, Uttam Nagar. On sending a raid team and investigating the accussed, contraband Heroin weighing 250 grams was found; and similarly, from the possession of Mohd. Aakil 50 grams of Heroin was recovered and on testing, it was found to have confirmed presence of di-acetyl-morphine. This lead to the arrest of both the accused under Section 21 and 29 of the NDPS Act. The arguments put forth by the learned counsel appearing on behalf of the applicant/accused state that he has been he has been falsely implicated in the present case and the statutory stipulations as mandated under Section 50 of NDPS Act have not been complied with in the present case and that the prosecution has disregarded the sanctity of the mandatory requirement in force. Counsel appearing on behalf of the applicant/accused Nabi Alam also submitted that he was asked to inscribe his signature on blank papers at the time of his search conducted under Section 50 of the NDPS Act by the empowered officers of prosecuting agency, negating his statutory right to be searched only before a Gazetted Officer or Magistrate. On the other hand, the counsel for respondent submitted that all statutory prescriptions have been duly compiled with and relied on certain landmark judgments to support his case. The primary question that lied before the court was that “Whether even after a person accused or suspected of being in possession of narcotic drug or psychotropic substance is apprised by the empowered officer of his statutory right to be required to be searched before a Gazetted Officer or Magistrate, but expressly waives compliance with the said requirement and relinquishes his stipulated right, is it still mandatory for the prosecution to conduct his search only before a Gazetted Officer or Magistrate?”

J 1 IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment Reserved via Video Conferencing On : 05.02.2021 Judgment Pronounced via Video Conferencing On : 04.06.2021 BAIL APPLN. 2641 2018 & CRL.M.(BAIL) 555 2021 NABI ALAM @ ABBAS Applicant STATERespondents Mr. Aldanish Rein Advocate. Advocates who appeared in this case: For the Applicant: For the Respondent: Mr. Amit Chaddha APP for the State of NCT Delhi. HON BLE MR. JUSTICE SIDDHARTH MRIDUL HON BLE MR. JUSTICE TALWANT SINGH JUDGMENT SIDDHARTH MRIDUL J The present matter has been received by way of Reference víde Referral Order dated 15.06.2020 passed by learned Single Judge of this Court and marked to this Bench by Hon’ble the Chief Justice by directions dated 18.06.2020 to adjudicate and settle the question of law vis à vis the Provision of Section 50 Narcotic Drugs and Psychotropic Substances Act 1985 which governs the procedure qua the search of a person BAIL APPLN.2641 2018 Digitally signedby:DURGESH NANDANSigning Date:07.06.202115:26:10Signature Not Verified suspected of being in possession of a narcotic drug or a psychotropic substance inter alia before a Gazetted Officer or Magistrate. The genesis of the present proceeding that calls for determination is that a bail application under Section 439 of the Code of Criminal Procedure 1973 primarily seeking regular bail pending ensuing trial before the Court of learned Additional Sessions Judge Special Judge NDPS) West Tis Hazari Courts Delhi was instituted on behalf of the applicant accused which was dismissed by learned Sessions Court víde order dated 13.07.2018. Thereafter the present bail application under Section 439 Cr.P.C was filed which has been referred to this Bench by the learned Single Judge of this Court by reason of the statedly contradictory views expressed by various Benches of this Court qua the scope and ambit of the stipulations contained in Section 50 of the NDPS Act particularly in relation to the question whether even though the accused at the time of his search has been apprised of his right to be so searched in the presence of a Gazetted Officer or Magistrate ‘if he so requires’ but has expressly waived his right to be so searched before a Gazetted Officer or Magistrate is it still mandated by the said provision that the the accused be searched only before a Gazetted BAIL APPLN.2641 2018 Digitally signedby:DURGESH NANDANSigning Date:07.06.202115:26:10Signature Not Verified Officer or Magistrate. The substratum of the present case is that upon the reception of a tip off by Sub Inspector Vinod Narcotics Cell Police Station Crime Branch on 27.07.2017 it was brought to his notice that two people namely Nabi Alamand Mohd. Aakil were allegedly indulging in the supply of Heroin in Delhi which the applicant accused and his accomplice obtained from Badaiyu Bareli and that they would be supplying a big consignment of the contraband Heroin between 2.00 p.m. to 2.30 p.m. near traffic light at Chanakya Place Uttam Nagar. It was also intimated to the police officer by the secret informer that if a raid were to be conducted at that time the accused persons could be caught off guard while selling or and purchasing Heroin. Accordingly a raid team was formed and the applicant accused Nabi Alam along with one Mohd. Aakil were apprehended on the spot. Upon a personal search of the applicant accused Nabi Alam a polythene was recovered from the pocket of the trousers worn by him. Inside the said polythene contraband Heroin weighing 250 grams was found and similarly from the possession of Mohd. Aakil 50 grams of Heroin was recovered. The samples of the seized contraband were sent to Forensic Science Laboratory Divisionat Rohini Delhi and the result so BAIL APPLN.2641 2018 Digitally signedby:DURGESH NANDANSigning Date:07.06.202115:26:10Signature Not Verified obtained confirmed the presence of di acetyl morphine in the samples. On the basis of the aforesaid Nabi Alam and Mohd. Aakil were arrested and booked after registering First Information Report under Sections 21 and 29 of the NDPS Act. At the outset it is observed that the application seeking bail moved before the learned Session s Court came to be dismissed víde order dated 13.07.2018 on the ground of recovery of ‘commercial quantity’ of the contraband the possession of applicant accused Nabi Alam. 6. Mr. Aldanish Rein learned counsel appearing on behalf of the applicant accused Nabi Alam submits that he has been falsely implicated in the present case and has been in judicial custody since his arrest on 27.07.2017. It is the contention of the counsel for the applicant accused that the statutory stipulations as mandated under Section 50 of NDPS Act have not been complied with in the present case and that the prosecution has disregarded the sanctity of the mandatory requirement in force. Learned counsel for the applicant accused Nabi Alam would submit that the provision of Section 50 of the NDPS Act clearly and unequivocally stipulates that the search of a person accused or suspected of being in possession of any narcotic drug or psychotropic BAIL APPLN.2641 2018 Digitally signedby:DURGESH NANDANSigning Date:07.06.202115:26:10Signature Not Verified substance can only be conducted in the presence of a Gazetted Officer or Magistrate which mandatory stipulation in the instant case has been observed only in its breach. Learned counsel appearing on behalf of the applicant accused Nabi Alam also submits that he was asked to inscribe his signature on blank papers at the time of his search conducted under Section 50 of the NDPS Act by the empowered officers of prosecuting agency negating his statutory right to be searched only before a Gazetted Officer or Magistrate. Learned counsel appearing on behalf of the applicant accused would further submit that it is statutorily mandated that despite a person accused or suspected of being in possession of any narcotic drug or psychotropic substance waiving his right to be searched before a Gazetted Officer or Magistrate after being apprised of his statutory right in that behalf it is still incumbent upon the prosecuting agency and its empowered officers to mandatorily conduct his search before a Gazetted Officer or Magistrate only in order to be compliant with the provisions of Section 50 of the NDPS Act. In order to buttress and bolster his submission Mr. Aldanish Rein learned counsel appearing on behalf of the applicant accused Nabi Alam has placed reliance on series of judgements of this Court BAIL APPLN.2641 2018 Digitally signedby:DURGESH NANDANSigning Date:07.06.202115:26:10Signature Not Verified hereunder: as well as the Hon ble Supreme Court of India which are elaborated 1. Arif Khan @ Agha Khan vs. State of Uttarakhand reported as AIR 2018 SCC 2123. 2. The State of Uttarakhand Vs. Arif Khan @ Agha Khan in Review Petition No. 270 of 2019 in Criminal Appeal No. 273 2007. 3. State of Punjab vs Baldev Singh reported as AIR 1999 SC 4. Karnail Singh vs State of Haryana reported asSCC 5. Vijaysinh Chandubha Jadeja vs State of Gujarat reported 6. Narcotics Control Bureau Vs Sukhdev Raj Sodhi reported 7. State of Rajasthan Vs Parmanand & Anr reported as AIR 8. Delhi Airtech ServicesLtd. v. State of U.P. reported as as AIR 2011 SC 77. as AIR 2011 SC 1939. 2014 SC 1384. 2011SCC 354. 9. G. K. Dudani v. S. D. Sharma reported as AIR 1986 SC Judgment of Delhi High Court: 10. Innocent Uzoma Vs. State in Crl. A. 139 2017 decided on 11. Lai Babu @ Rajesh @ Raju Vs. GNCTD in Bail Appln. No. 1766 2019 decided on 15 10 19. 12. Vaibhav Gupta vs. State in Bail Appln No. 2014 2019 decided on 20 09 2019. 13. State Vs Vicky in CRL.L.P.143 2017 decided on 13 09 19 14. Sumit Rai @ Subodh Rai vs. State in Crl. A. 578 2017 decided on 29 07 19. 15. Sikodh Mahto Vs. State in Crl. A. 660 2017 decided on BAIL APPLN.2641 2018 Digitally signedby:DURGESH NANDANSigning Date:07.06.202115:26:10Signature Not Verified 16. Sunny Khanna Vs. State in Bail Appln. No. 218 2019 17. Deepak Shamsher Thapa Vs. State in Crl. A. 831 2014 18. Gurtej Singh Bath Vs. State in Crl. A. 39 2015 decided on 19. Dharambir vs. State in Crl. A. 658 2017 decided on 20. Deepak Singh vs. State in Bail Appln. No. 1854 2017 decided on 25 04 19 decided on 08.01.2019 decided on 31 10 18 Per Contra Mr. Rahul Mehra learned Standing Counsel Criminal) appearing on behalf of respondent State would submit that all statutory prescriptions and requirements have been scrupulously and duly observed in the present case in accordance with law and that the requirement of Section 50 of the NDPS Act for the suspect to be searched only before a Gazetted Officer or Magistrate even though the suspect waives that requisition after categorically being apprised of his right to be so searched is not the stipulation of the provision. It is further submitted that the applicant accused was served with notice to be searched under Section 50 of the NDPS Act whilst simultaneously being informed of his statutory right to be searched before a Gazetted Officer or Magistrate in response to which the applicant accused decided to waive the right by reposing faith in the empowered officer to conduct his search in complete accord with the stipulated and statutory BAIL APPLN.2641 2018 Digitally signedby:DURGESH NANDANSigning Date:07.06.202115:26:10Signature Not Verified requirements mandated by the provision of Section 50 of the NDPS Act. It is further submitted that applicant accused was caught red handed in possession of ‘commercial quantity’ of contraband substance Heroin weighing 250 grams and committed heinous crime of drug trafficking and warrants no leniency at this stage of trial. 12. Mr. Rahul Mehra learned Standing Counsel appearing on behalf of the respondent State in support of his submissions and contentions placed reliance on the various decisions which are mentioned hereunder: as AIR 2011 SC 77. 2013) 2 SCC 67. SC 2926. as AIR 2018 SC 2123. 2010ACR 7132 SCC 624. 1. State of Punjab vs Baldev Singh reported as AIR 1999 SC 2. Vijaysinh Chandubha Jadeja vs State of Gujarat reported 3. Ashok Kumar Sharma vs State of Rajasthan reported as 4. Raghbir Singh vs State of Harayana reported as AIR 1996 5. Arif Khan @ Agha Khan vs. State of Uttarakhand reported 6. Babua@Tazmul Hossain Vs. State of Orissa reported as 7. Union of India vs Rattan Mallik @ Kabul reported as 8. Siddharam Satlingappa Mhetre v. State of Maharashtra reported as AIR 2011 SC 312. 9. Sundeep Kumar Bafna v. State of Maharashtra reported as AIR 2014 SC 1745. 10. State of Orissa vs Mohd. Illiyas. reported as AIR 2006 SC BAIL APPLN.2641 2018 Digitally signedby:DURGESH NANDANSigning Date:07.06.202115:26:10Signature Not Verified 11. National Insurance Company ltd. vs Pranay Sethi reported as AIR 2017 SC 5157. 12. Sandhya Educational Society vs Union of India reported as 2015)ALLMR 467. Judgment of Delhi High Court: Innocent Uzoma Vs. State in Crl. A. 139 2017 decided on 2. Anil SharmaVs. State in Bail App. No. 127 2019 decided 3. Shafi @ Lovely Vs. State in Bail App. No. 1493 2019 on 08 11 2019. decided on 19 08 2019. 13. Having heard learned counsel appearing on behalf of the parties and after due consideration of the rival submissions in the context of the facts and circumstances on record as well as the relevant provisions of law and the decisions relied upon by the parties we observe that the solitary question of law that arises for consideration in the present case is: a) Whether even after a person accused or suspected of being in possession of narcotic drug or psychotropic substance is apprised by the empowered officer of his statutory right to be required to be searched before a Gazetted Officer or Magistrate but expressly waives compliance with the said requirement and relinquishes his stipulated right is it still mandatory for the BAIL APPLN.2641 2018 Digitally signedby:DURGESH NANDANSigning Date:07.06.202115:26:10Signature Not Verified prosecution to conduct his search only before a Gazetted Officer or Magistrate 14. Before we proceed to decide the issue struck it is pertinent to observe that stringent provisions of the NDPS Act cast a heavier duty upon the prosecution who enjoy extensive statutory powers requiring them to follow strictly and comply scrupulously with the safeguards provided in the NDPS Act. There can be no quarrel with the proposition that the intent of the legislature to include Section 50 of the NDPS Act requiring the empowered officer to apprise the person accused or suspected of being in possession of any narcotic drug or psychotropic substance of his statutory right to be searched before a Gazetted Officer or Magistrate was done with a view to impart authenticity transparency and creditworthiness to the proceedings since the Magistrate axiomatically enjoys more confidence of the common man in contrast to any officer of prosecuting agency. 15. It axiomatically follows as conclusively opined by Constitutional Benches of the Hon’ble Supreme Court in Vijaysinh Chandubha Jadeja and Baldev Singh that the right of the person accused or suspected of being in possession of any narcotic drug or psychotropic substance to be informed of his BAIL APPLN.2641 2018 Digitally signedby:DURGESH NANDANSigning Date:07.06.202115:26:10Signature Not Verified statutory right to be searched before a Gazetted Officer or Magistrate if such person so requires is mandatory. 16. In order to effectively adjudicate the issue before this Court it is considered necessary and profitable to extract the relevant provision of the NDPS Act which reads as follows: Section 50 Conditions under which search of persons shall be conducted 1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41 section 42 or section 43 he shall if such person so requires take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. 2) If such requisition is made the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub section 3) The Gazetted Officer or the Magistrate before whom any such person is brought shall if he sees no reasonable ground for search forthwith discharge the person but otherwise shall direct that search be made. 4) No female shall be searched by anyone excepting a female. 1[(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance or controlled substance or article or document he may instead of taking such person to the nearest Gazetted Officer or Magistrate proceed to search the person as provided under section 100 of the Code of Criminal Procedure 1973After a search is conducted under sub sectionthe BAIL APPLN.2641 2018 Digitally signedby:DURGESH NANDANSigning Date:07.06.202115:26:10Signature Not Verified officer shall record the reasons for such belief which necessitated such search and within seventy two hours send a copy thereof to his immediate official 17. On a plain reading and harmonious interpretation of the above extracted provision it is evident that Section 50 of the NDPS Act stipulates the conditions under and the manner in which the personal search of a person accused or suspected of being in possession of any narcotic drug or psychotropic substance is required to be conducted. Upon delineation of provision of Section 50 of the NDPS Act it is observed that sub Section provides that when the empowered officer is about to conduct the search of any suspected person he shall “if the person to be searched so requires” take him to the nearest Gazetted officer or the Magistrate for the said purpose. Sub section stipulates that if such request is made by the suspected person the empowered officer who is to effectuate the search may detain the person accused or suspected of being in possession of any narcotic drug or psychotropic substance until the latter can be produced before such Gazetted Officer or the Magistrate. It is evident that if the suspect expresses the desire to be taken to the Magistrate the empowered officer is restrained from effecting the search of the person concerned. Sub section provides that when a person to be BAIL APPLN.2641 2018 Digitally signedby:DURGESH NANDANSigning Date:07.06.202115:26:10Signature Not Verified searched is brought before such Gazetted Officer or the Magistrate and such Gazetted Officer or the Magistrate finds that there are no reasonable grounds to conduct the search he shall forthwith discharge the person to be searched otherwise he shall direct the search to be made. Sub sections and which were introduced in Section 50 NDPS Act by virtue of the Narcotics Drugs and Psychotropic SubstancesAct 2001 enacted on 27.09.2001 and came into effect from 02.10.2001 provided an option to the empowered officer to search the person accused or suspected of being in possession of any narcotic drug or psychotropic substance notwithstanding the latter exercising his right to be searched only before a Gazetted Officer or Magistrate if the empowered officer has reason to believe that it was not possible to take such person to be searched before the nearest Gazetted Officer or Magistrate without the possibility of the person parting with the possession of any narcotic drugs psychotropic substance or any controlled substance or article or document. In terms of Sub sectionof Section 50 of the NDPS Act the empowered officer mandatorily required to record reasons for his belief that it was necessary to search the person accused or suspected of being in possession of any narcotic drug or psychotropic substance without taking him to the nearest Gazetted Officer or Magistrate BAIL APPLN.2641 2018 Digitally signedby:DURGESH NANDANSigning Date:07.06.202115:26:10Signature Not Verified within 72 hours of the search being conducted and a copy of the reasons so recorded was mandatorily required to be sent by the empowered officer to his immediate superior. 18. At this juncture we must reiterate that the issue before us in terms of the Referral Order is not about the general applicability of Section 50 of the NDPS Act but is specifically to determine whether even after a person accused or suspected of being in possession of narcotic drug or psychotropic substance is apprised by empowered officer of his statutory right to be required to be searched before a Gazetted Officer or Magistrate but expressly waives compliance with the said requirement and relinquishes his stipulated right it is still mandatory for the prosecution to conduct his search only before a Gazetted Officer or Magistrate. 19. This issue in our considered view is no longer res integra in view of the decision of the Hon’ble Supreme Court in Baldev Singh supra) and Vijaysinh Chandubha Jadeja wherein it was held as follows: “23. In the above background we shall now advert to the controversy at hand. For this purpose it would be necessary to recapitulate the conclusions arrived at in Baldev Singh case6 SCC 172 : 1999 SCC1080] . We are concerned with the following conclusions: the Constitution Bench BAIL APPLN.2641 2018 Digitally signedby:DURGESH NANDANSigning Date:07.06.202115:26:10Signature Not Verified “(1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person it is imperative for him to inform the person concerned of his right under sub section of Section 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search. However such information may not necessarily be in 2) That failure to inform the person concerned about the existence of his right to be searched before a gazetted officer or a Magistrate would cause prejudice to an accused. 3) That a search made by an empowered officer on prior information without informing the person of his right that if he so requires he shall be taken before a gazetted officer or a Magistrate for search and in case he so opts failure to conduct his search before a gazetted officer or a Magistrate may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused where the conviction has been recorded only on the basis of the possession of the illicit article recovered from his person during a search conducted in violation of the provisions of Section 50 of the Act. 5) That whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the court on the basis of the evidence led at the trial. Finding on that issue one way or the other would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish at the trial that the provisions of Section 50 and particularly the safeguards provided therein were duly complied with it would not be permissible to cut short a criminal 6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched we do not BAIL APPLN.2641 2018 Digitally signedby:DURGESH NANDANSigning Date:07.06.202115:26:10Signature Not Verified express any opinion whether the provisions of Section 50 are mandatory or directory but hold that failure to inform the person concerned of his right as emanating from sub section of Section 50 may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in 7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution in other proceedings against an accused notwithstanding the recovery of that material during an illegal search.” emphasis in original) 24. Although the Constitution Bench in Baldev Singh case6 SCC 172 : 1999 SCC1080] did not decide in absolute terms the question whether or not Section 50 of the NDPS Act was directory or mandatory yet it was held that provisions of sub section of Section 50 make it imperative for the empowered officer to “inform” the person concerned suspect) about the existence of his right that if he so requires he shall be searched before a gazetted officer or a Magistrate failure to “inform” the suspect about the existence of his said right would cause prejudice to him and in case he so opts failure to conduct his search before a gazetted officer or a Magistrate may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused where the conviction has been recorded only on the basis of the possession of the illicit article recovered from the person during a search conducted in violation of the provisions of Section 50 of the NDPS Act. The Court also noted that it was not necessary that the information required to be given under Section 50 should be in a prescribed form or in writing but it was mandatory that the suspect was made aware of the existence of his right BAIL APPLN.2641 2018 Digitally signedby:DURGESH NANDANSigning Date:07.06.202115:26:10Signature Not Verified to be searched before a gazetted officer or a Magistrate if so required by him. We respectfully concur with interpretation of the provision would make the valuable right conferred on the suspect illusory and a conclusions. Any 27. It can thus be seen that apart from the fact that in Karnail Singh8 SCC 539 : 3 SCC Cri) 887] the issue was regarding the scope and applicability of Section 42 of the NDPS Act in the matter of conducting search seizure and arrest without warrant or authorisation the said decision does not depart from the dictum laid down in Baldev Singh case6 SCC 172 : 1999 SCC 1080] insofar as the obligation of the empowered officer to inform the suspect of his right enshrined in sub section of Section 50 of the NDPS Act is concerned. It is also plain from the said paragraph that the flexibility in procedural requirements in terms of the two newly inserted sub sections can be resorted to only in emergent and urgent situations contemplated in the provision and not as a matter of course. Additionally sub section of Section 50 of the NDPS Act makes it imperative and obligatory on the authorised officer to send a copy of the reasons recorded by him for his belief in terms of sub section 5) to his immediate superior officer within the stipulated time which exercise would again be subjected to judicial scrutiny during the course of 28. We shall now deal with the two decisions referred to in the referral order wherein “substantial compliance” with the requirement embodied in Section 50 of the NDPS Act has been held to be sufficient. In Prabha Shankar Dubey2 SCC 56 : 2004 SCC 420] a two Judge Bench of this Court culled out the ratio of Baldev Singh case6 SCC 172 : 1999 SCC 1080] on the issue before us as follows: BAIL APPLN.2641 2018 Digitally signedby:DURGESH NANDANSigning Date:07.06.202115:26:10Signature Not Verified Prabha Shankar Dubey case2 SCC 56 : 2004 SCC420] SCC p. 64 para 11) “11. … What the officer concerned is required to do is to convey about the choice the accused has. The accusedhas to be told in a way that he becomes aware that the choice is his and not of the officer concerned even though there is no specific form. The use of the word ‘right’ at relevant places in the decision of Baldev Singh case6 SCC 172 seems to be to lay effective emphasis that it is not by the grace of the officer the choice has to be given but more by way of a right in the ‘suspect’ at that stage to be given such a choice and the inevitable transgressing it.” However while gauging whether or not the stated requirements of Section 50 had been met on facts of that case finding similarity in the nature of evidence on this aspect between the case at hand and Joseph Fernandez1 SCC 707 : 2000 SCC300] the Court chose to follow the views echoed in the latter case wherein it was held that the searching officer s information to the suspect to the effect that “if you wish you may be searched in the presence of a gazetted officer or a Magistrate” was in substantial compliance with the requirement of Section 50 of the NDPS Act. Nevertheless the Court indicated the reason for use of expression “substantial compliance” words: 2 SCC 56 : 2004 SCC420] SCC p. 64 para “12. The use of compliance’ was made in the background that the searching officer had Section 50 in mind and it was unaided by the interpretation placed on it by the Constitution Bench in Baldev Singh case6 SCC 172 : 1999 SCC1080] A line or a word in a judgment cannot be read in isolation or as if interpreting a statutory BAIL APPLN.2641 2018 Digitally signedby:DURGESH NANDANSigning Date:07.06.202115:26:10Signature Not Verified provision to impute a different meaning to the It is manifest from the afore extracted paragraph that Joseph Fernandez1 SCC 707 : 2000 SCC 300] does not notice the ratio of Baldev Singh6 SCC 172 : 1999 SCC Dubey2 SCC 56 : 2004 SCC420] Joseph Fernandez1 SCC 707 : 2000 SCC300] is followed ignoring the dictum laid down in Baldev Singh case6 SCC 172 : 1999 SCC1080] in Prabha 29. In view of the foregoing discussion we are of the firm opinion that the object with which the right under Section 50(1) of the NDPS Act by way of a safeguard has been conferred on the suspect viz. to check the misuse of power to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that insofar as the obligation of the authorised officer under sub sectionof Section 50 of the NDPS Act is concerned it is mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter the suspect may or may not choose to exercise the right provided to him under the said provision.” 20. On a plain reading of the above decision it is clear that the obligation of the empowered officer under sub Sectionof Section 50 of the NDPS Act makes it imperative on his part to apprise the BAIL APPLN.2641 2018 Digitally signedby:DURGESH NANDANSigning Date:07.06.202115:26:10Signature Not Verified person intended to be searched of his right to be searched before a Gazetted Officer or Magistrate failure to comply with which prescription which requires strict compliance would render the recovery of the of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person accused during such search or suspected of being in possession of any narcotic drug or psychotropic substance during the said search. However for the purposes of the issue to be determined in the instant case it is relevant and pertinent to note that the Constitution Bench of the Hon’ble Supreme Court of India in Vijaysinh Chandubha Jadeja supra) clearly observed “Thereafter the suspect may or may not choose to exercise the right provided to him under the said proviso”. The sequitur to this observation of the Supreme Court leaves no manner of doubt that once the suspect has been apprised by the empowered officer of his right to be searched before a Gazetted Officer or a Magistrate but chooses not to exercise that right the empowered officer can conduct the search of such person without producing him before a Gazetted Officer or a Magistrate for the said purpose. 21. Coming now the emphasis placed on behalf of applicant accused on the judgment rendered by the Supreme Court in BAIL APPLN.2641 2018 Digitally signedby:DURGESH NANDANSigning Date:07.06.202115:26:10Signature Not Verified Arif Khan @ Agha Khan the question that needs to be considered is whether that decision is an authority for the proposition that notwithstanding the person proposed to be searched has after being duly apprised of his right to be searched before a Gazetted Officer or Magistrate but has expressly waived this right in clear and unequivocal terms it is still mandatory that his search be conducted only before a Gazetted Officer or Magistrate. 22. In this behalf it is necessary to consider the observations of the Hon’ble Supreme Court in Arif Khan @ Agha Khan the relevant paragraphs of which decision are being extracted hereinbelow: “18. What is the true scope and object of Section 50 of the NDPS Act what are the duties obligation and the powers conferred on the authorities under Section 50 and whether the compliance of requirements of Section 50 are mandatory or directory remain no more res integra and are now settled by the two decisions of the Constitution Bench of this Court in State Punjab v. Baldev Singh 6 SCC 172 : 1999 and Vijaysinh Chandubha Jadeja1 SCC 609] . of Punjab v. Baldev Singhhas settled the aforementioned questions after taking into considerations all previous case law on the subject. 20. Their Lordships have held in Vijaysinh Chandubha Jadeja that the requirements of Section 50 of the NDPS Act are mandatory and provisions of Section 50 must be strictly complied therefore BAIL APPLN.2641 2018 Digitally signedby:DURGESH NANDANSigning Date:07.06.202115:26:10Signature Not Verified with. It is held that it is imperative on the part of the police officer to apprise the person intended to be searched of his right under Section 50 to be searched only before a gazetted officer or a Magistrate. It is held that it is equally mandatory on the part of the authorised officer to make the suspect aware of the existence of his right to be searched before a gazetted officer or a Magistrate if so required by him and requires a strict compliance. It is ruled that the suspect person may or may not choose to exercise the right provided to him under Section 50 of the NDPS Act but so far as the officer is concerned an obligation is cast upon him under Section 50 of the NDPS Act to apprise the suspect of his right to be searched before a gazetted officer or a Magistrate.” 23. A plain reading of the above extracted paragraphs leads to but one inescapable conclusion that their Lordships of the Hon’ble Supreme Court whilst following the ratio of the decision of the Constitution Bench in Vijaysinh Chandubha Jadejaheld that the same has settled the position of law in this behalf to the effect that whilst it is imperative on the part of the empowered officer to apprise the person of his right to be searched only before a Gazetted Officer or Magistrate and this requires a strict compliance the Hon’ble Court simultaneously proceeded to reiterate that in Vijaysinh Chandubha Jadeja “it is ruled that the suspect person may or may not choose to exercise the right provided to him under Section 50 of the NDPS Act”. In this view of the matter the reliance placed by counsel BAIL APPLN.2641 2018 Digitally signedby:DURGESH NANDANSigning Date:07.06.202115:26:10Signature Not Verified his aid. for the applicant accused on the decision of the Supreme Court in Arif Khan @ Agha Khanin our respectful view does not come to 24. Having considered the case law on the subject we are inclined to answer the Reference in the following manner. 25. In view of the discussion in the foregoing paragraphs we answer the issue that arises for consideration in the present Reference in the 26. For the sake of clarity it is held that axiomatically there is no requirement to conduct the search of the person suspected to be in possession of a narcotic drug or a psychotropic substance only in the presence of a Gazetted Officer or Magistrate if the person proposed to be searched after being apprised by the empowered officer of his right under Section 50 of the NDPS Act to be searched before a Gazetted Officer or Magistate categorically waives such right by electing to be searched by the empowered officer. The words “if such person so requires” as used in Section 50(1) of the NDPS Act would be rendered otiose if the person proposed to be searched would still be required to be searched only before a Gazetted Officer or Magistrate despite having expressly waived “such requisition” as mentioned in the opening sentence of sub Section of Section 50 of the NDPS BAIL APPLN.2641 2018 Digitally signedby:DURGESH NANDANSigning Date:07.06.202115:26:10Signature Not Verified Act. In other words the person to be searched is mandatorily required to be taken by the empowered officer for the conduct of the proposed search before a Gazetted Officer or Magistrate only “if he so requires” upon being informed of the existence of his right to be searched before a Gazetted Officer or Magistrate and not if he waives his right to be so searched voluntarily and chooses not to exercise the right provided to him under Section 50 of the NDPS Act. 27. The Bail Application No.2641 2018 and Criminal M. No.555 2021 seeking interim bail be listed before the learned Single Judge for further proceedings in accordance with law on 06.07.2021. 28. Copies of this Judgment be provided to the learned counsel appearing on behalf of the parties electronically and be also uploaded on the website of this Court forthwith. SIDDHARTH MRIDUL TALWANT SINGH JUNE 04 2021 dn danish BAIL APPLN.2641 2018 Click here to check corrigendum if any Digitally signedby:DURGESH NANDANSigning Date:07.06.202115:26:10Signature Not Verified

Election process cannot be interfered with once commenced : Kerala High Court

Once the election process is commenced, the same cannot be interfered with. The High Court bench consisting of J. C. T. Ravikumar and J. K. Haripal, dismissed a writ appeal in the matter of Sunny Cherian & Ors. v. The Electoral Officer & Ors. [W.A. No. 38/2021]. The writ petitioners/ appellants filed a writ petition mainly seeking quashment of a Government order extending the period of Board Directors of various Co-operative Societies up to January, 2021 and seeking issuance of writ of mandamus or appropriate writ commanding the respondent, Electoral Officer to remove the names of the members of the other respondent, Co-operative Society from the final voters’ list published in connection with the election to the Board of Directors. The learned judge declined to grant the interim relief sought for and hence, the present appeal was preferred. The High Court found that the previous judgement wherein the passing of the interim order was declined was relied on the judgement of Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugha Utpadak Sanstha and Anr v. State of Maharashtra and Ors. [(2001) 8 SCC 509], wherein it was stated that “virtually, holding that once the election process was commenced the same shall not be interfered with”. Further the High Court held that “We may hasten to hold that though this Court would be loathe to interfere with an election process once it is commenced there is no inflexible or invaluable position interdicting interference with an election process. The pleadings in this appeal and the writ petition would reveal that the appellants allege illegality in the matter of extension of the term of Managing Committees of Co-operative Societies beyond five years as per Ext.P5 and according to them, the third and fourth respondents got no competence to admit new members with voting right to the third respondent society during the extended period of the term”. The court found that the appellants alleged non-compliance with the statutory provisions for enrollment of members and also alleged enmasse enrollment in blatant violation of the prescribed procedures. The appellants also alleged non-consideration of objections raised by them against the preliminary voters’ list.

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR THE HONOURABLE MR. JUSTICE K.HARIPAL THURSDAY THE 07TH DAY OF JANUARY 2021 17TH POUSHA 1942 WA.No.38 OF 2021 AGAINST THE ORDER DATED 22.12.2020 IN WP(C) 27583 2020(W) OF HIGH COURT OF KERALA SUNNY CHERIAN AGED 54 YEARS S O.CHERIAN KUTTIPPURATHU HOUSE KATTAPPANA P.O IDUKKI DISTRICT PIN 685 808 REJI THOMAS AGED 49 YEARS S O. THOMAS AMBATTU HOUSE UPPUKANDAM P.O IDUKKI DISTRICT PIN 685 514 MATHEW JOSEPH AGED 60 YEARS S O. JOSEPH PULIKKATHAZHE KADAMAKKUZHI P.O IDUKKI DISTRICT PIN 685 515 P.J THOMAS AGED 66 YEARS S O. JOSEPH PORUNNOLIL KATTAPPANA P.O IDUKKI DISTRICT PIN 685 508 JOY THOMAS AGED 65 YEARS S O. THOMAS POOVATHUMOOTTIL KOZHIMALA P.O IDUKKI DISTRICT PIN 685 511 BHAVANA SUBHASH AGED 55 YEARS W O. SUBHASH MARIPPURATH VELLAYAMKUDI P.O IDUKKI DISTRICT PIN 685 515 W.A.No.321 P.S MARYDASAN AGED 59 YEARS S O.SEBASTIAN PANDYAMAKKAL KATTAPPANA P.O IDUKKI DISTRICT PIN 685 508 BY ADVS.SRI.K.K.CHANDRAN PILLAIOFFICE OF THE ASSISTANT REGISTRAR OF CO OPERATIVE SOCIETIESNAYARUPARA P.O IDUKKI DISTRICT PIN 685 602 THE STATE COOPERATIVE ELECTION COMMISSION OFFICE OF THE STATE CO OPERATIVE ELECTION VIKAS BHAVAN THIRUVANANTHAPURAM PIN 695 033 KATTAPPANA RURAL DEVELOPMENT CO OPERATIVE SOCIETY LTD NO 1 591 KATTAPPANA P.O IDUKKI REPRESENTED BY ITS SECRETARY THE BOARD OF DIRECTORSPAINAVU P.O IDUKKI PIN 685 603 THE SECRETARY KATTAPPANA RURAL DEVELOPMENT CO OEPRATIVE SOCIETY LTD NO. 1 591 KATTAPPANA P.O IDUKKI PIN 685 508 STATE OF KERALA REPRESENTED BY THE SPECIAL SECRETARY CO OPERATION DEPARTMENT GOVT. SECRETARIAT THIRUVANANTHAPURAM 695 001 R1 & R2 BY S.C.SRI.R.LAKSHMI NARAYANAN R3 R4 & R9 BY S.C.SRI.P.C.SASIDHARAN R8 & R10 BY G.P.SRI.RENIL ANTO KANDAMKULATHY THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 07.01.2021 THE COURT ON THE SAME DAY DELIVERED THE W.A.No.321 Ravikumar J This intra court appeal is directed against the interim order dated 22.12.2020 in W.P.(C)No.275820. The writ petitioners are the appellants. They filed the writ petition mainly seeking quashment of Ext.P5 Government Order dated 23.4.2020 extending the period of Board of Directors of various Co operative Societies up to January 2021 and seeking issuance of a writ of mandamus or appropriate writ commanding the first respondent viz. the Electoral Officer to remove the names of the members of the third respondent Co operative Society as contained in Ext.P22 from the final voters list published by the first respondent in connection with the election to the Board of Directors of the third respondent scheduled as per Exts.P6 and P7. They also sought declarations on the following lines: “e) To declare by the issuance of appropriate writ order or direction that the 3rd and 4th respondents are incompetent to take Ext.P7(a) resolution requesting the 2nd respondent to conduct election to the Board of Directors of the 3rd respondent f) To declare by the issuance of appropriate writ order or direction that the third and 4th respondents have no competence to admit new members with voting right W.A.No.321 to the third respondent on the basis of the extension of the period of the committee as per Ext.P5 g) To declare by the issuance of appropriate writ order or direction that the enblock enrollment of members to the 3rd respondent Society as contained in Exts.P16 and P22 without complying with the provisions contained in Section 16 of the Kerala Cooperative Societies Act 1969 and Rule 16 of the Kerala Cooperative Societies Rules 1969 is illegal and therefore to quash Exts.P16 and P22 by the issuance of a writ in the nature of certiorari or such other appropriate writ order or direction .” By way of an interim relief they prayed thus: “For the reasons stated in the writ petition and in the affidavit accompanying thereto it is humbly prayed that this Hon ble Court may be pleased to stay all further proceedings by respondents 1 & 2 for conducting election to the Board of Directors of the 3rd respondent Society scheduled on 10.01.2021 pursuant to Exts.P6 & P7 during the pendency of the above writ petition before this Hon ble Court.” The learned Single Judge after hearing the arguments of the learned counsel on both sides declined to grant the interim relief sought for as per the impugned order dated 22.12.2020. This appeal is preferred in the said circumstances 2. Heard the learned Senior Counsel Sri.K.K.Chandran Pillai for the appellants Sri.P.C.Sasidharan the learned counsel appearing for respondent Nos.3 4 and 9 learned Standing Counsel Sri.R.Lakshmi W.A.No.321 Narayanan for respondent Nos.1 and 2 as also the learned Government 3. Ext.P6 is the election notification dated 24.11.2020 issued by the 2nd respondent. Going by the same election to the Managing Committee of the third respondent society is to be held on 10.1.2021 from 9 a.m. onwards. Prayer No.(d) in the writ petition itself would reveal that after issuing a preliminary voters list in the matter of conduct of election to the Managing Committee of the third respondent a final voters list was also published. The counter affidavit filed in the writ petition on behalf of respondents 4 to 7 would reveal that the final voters list was published on 5.12.2020. These facts are not in dispute As noticed hereinbefore in terms of Ext.P6 election notification election is scheduled to be held on 10.1.2021. The impugned interim order passed by the learned Single Judge would reveal that taking into account the nature of the allegations the Writ Court prima facie arrived at the conclusion that disputed questions of fact involved for resolution in the writ petition and they could not be gone into in the writ petition at present. Taking note of the aforesaid situations as also the decisions of the Hon ble Apex Court in S.S.S.J.S. S.D.U. Sanstha v State of Maharashtra Shaji K. Joseph v V.Viswanath 4 SCC 429] and Shri Sant Sadguru W.A.No.321 Janardan Swami Sahakari Dugdha Utpadak Sanstha and Anr. v. State of Maharashtra and Ors.8 SCC 509] the learned Single Judge declined to pass an interim order as sought for virtually holding that once the election process was commenced the same shall not be interfered with. We may hasten to hold that though this Court would be loathe to interfere with an election process once it is commenced there is no inflexible or invaluable position interdicting interference with an election process. The pleadings in this appeal and the writ petition would reveal that the appellants allege illegality in the matter of extension of the term of Managing Committees of Co operative Societies beyond five years as per Ext.P5 and according to them the third and fourth respondents got no competence to admit new members with voting right to the third respondent society during the extended period of the term. Essentially they allege non compliance with the statutory provisions for enrollment of members and also allege enmasse enrollment in blatant violation of the prescribed procedures. The appellants also allege non consideration of objections raised by them against the preliminary voters list Virtually the appellants want to disfranchise a large number of members whose names figured not only in the preliminary voters list but also in the final voters list and that is why they seek removal of W.A.No.321 names of members of the third respondent contained in Ext.P22 from the final voters list. The tenor of the pleadings in the writ petition as also in the writ appeal would undoubtedly go to show that the appellants are fully aware of the publication of the final voters list. In this context it is to be noted that there is no challenge against the final voters list and it is also not produced either in the writ petition or in the writ appeal. Be that as it may the indisputable position is that election is scheduled as per Ext.P6 to be held on 10.1.2021 and in that regard in terms of the election notification preliminary voters list as also final voters list were published. Ineligibility of a large number of members of the third respondent society to be eligible for voting is under challenge raising enmasse enrollment in flagrant violation of the statutory provisions governing enrollment. 4. Upon hearing the learned Senior Counsel appearing for the appellants and going through the pleadings in this appeal as also in the writ petition we do concur with the learned Single Judge that fact finding exercise to certain extent requires to fix the tenability of the allegations raised. To what extent such exercise is possible or permissible in view of the nature of the allegations with supporting materials is certainly a matter initially for the Writ Court to consider The observations and findings of the learned Single Judge in the W.A.No.321 impugned interim order can only be taken as prima facie conclusions and findings arrived at for the purpose of deciding the entitlement of the appellants to the interim relief sought for. In view of the fact that the main prayer in the writ petition is for quashment of Ext.P5 whereby the term of the committee of the third respondent as also all the Co operative Societies was extended beyond the period of five years to be precise for a period of five years and six months and consequential declaration is also sought for to the extent that the third and fourth respondents were incompetent to admit members into the third respondent society during the extended period we are of the considered view that the conduct of the election as scheduled by itself would not defeat the case and contentions of the appellants. Certainly depending on the fate of challenge against the competency to extend the term of Co operative Societies as has been done under Ext.P5 the legality of enrollment effected during the extended period as also the right to cast votes by such enrolled members have to be decided Several contentions were raised based on various statutory provisions before us. However taking note of the aforesaid position as also the fact that a probe into such matters and any observation or finding would leave nothing for decision in the writ petition we are of the view that without entertaining such contentions at this stage and in view of W.A.No.321 the pendency of the writ petition it is only befitting to leave the entire matter to be decided in the writ petition however making it clear that the entire proceedings including the conduct of election would be subject to the result of the writ petition. Ordered accordingly The Writ Appeal stands disposed of as above C.T.RAVIKUMAR Judge Sd Sd K.HARIPAL Judge TKS W.A.No.321 COPY OF CIRCULAR NO.E(2)27 2011 SCES(CIRCULAR NO.07 2011) DATED 21.10.2011 OF THE COOPERATIVE COPY OF CIRCULAR NO.E(2)399 2011 SCES(CIRCULAR NO.09 2012) DATED 10.07.2012 OF THE COOPERATIVE COPY OF LETTER NO C R B. 3931 2020 DATED 10.11.2020 OF THE JOINT REGISTRAR OF CO OPERATIVE SOCIETIES IDUKKI COPY OF LETTER NO 930 2020 DATED 21.12.2020 OF THE ASSISTANT REGISTRAR OF COOPERATIVE SOCIETIES IDUKKI

Witnesses becoming hostile cannot be ignored or pardoned: Bombay High Court

Hostile witnesses are those whose testimony on direct examination is either openly antagonistic or appears to be contrary to the legal position of the party who called the witness. Bombay High Court stated that legal actions must be taken against such witnesses because they are cancerous to the rule of law and the justice delivery system. The decision was taken in the case of Saraswati vs. the State of Maharashtra [Criminal Appeal no. 40 of 2015] by the bench of Hon’ble Justice Ravindra V.Ghuge and Justice B.U Debadwar. In this case, the appellant (accused) had appeared in the High Court to quash the judgment of the Trial Court which had convicted her for the charges of murder u/s 302 of IPC and sentenced them for the imprisonment of life. The appellant was accused of murdering her own husband because of some quarrels between them for 3 acres of land. After committing the murder, the appellant herself went to the police station and gave the statement that she had murdered her husband. The dead body of the deceased husband was found with injuries on his head, face, all over the body, and on his genitals. After the recording of evidence and the voluntary statement made by the appellant while being in police custody, the stone and the plank used to strike at the deceased were seized under the panchanama. And therefore, the trial court had convicted the accused for murder u/s 302 of IPC. In the High Court, the appellant’s counsel contended that:- Five out of seven witnesses had turned hostile and vital witnesses. On the other hand, the prosecution had contended that the accused killed her husband, causing him grievous injuries with the use of a stone, wooden plank, stick, and by crushing his genitals and also electrocuted him. However, no evidence was found against the accused which proved that she electrocuted her husband. HC observed that a 65-year-old village lady could not have lifted an 8 kilogram stone to assault the deceased and stone and a wire was found planted in another room to which there was access from the room in which the deceased was found killed. Hence, HC found that the conclusions made by the Trial Court were unsustainable. In the post-mortem report, the doctor had declared that the deceased met a homicidal death. While referring to the cases of State through PS Lodhi Colony, New Delhi vs. Sanjeev Nanda, (2012) 8 SCC 450 and Mallikarjun and others vs. State of Karnataka, (2019) 8 SCC 359, HC stated that the conduct of the witnesses cannot be countenanced. HC stated that “The statements made to the police have no evidentiary value. The prosecution claims that the admission by the appellant of having murdered her husband. Though the prosecution has made such a submission, we do not find that such alleged extra-judicial confession has been proved before the Trial Court. A high degree of proof is required for proving an extra-judicial confession”.

on 19 01 2021 on 05 02 1 crapeal40o15IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.40 OF 2015Saraswati w o Ganpat Landge Age : 66 years Occupation : Nil R o Gawaligalli Raviwar Peth Ambajogai Tq.Ambajogai District Beed....APPELLANT ACCUSED versus The State of Maharashtra.(Copy to be served on P.P.High Court of Bombay Bench at Aurangabad)...RESPONDENT…Shri Aniket Vagal Advocate for the appellant accused.Shri R.D. Sanap APP for the respondent State.... CORAM : RAVINDRA V. GHUGE & B. U. DEBADWAR JJ.Reserved on : 04th January 2021Pronounced on : 19th January 2021JUDGMENT: 1.By this appeal the appellant original accused prays for on 19 01 2021 on 05 02 2 crapeal40o15quashing and setting aside the judgment and order of conviction deliveredby the learned Additional Sessions Judge Ambajogai District Beed dated11.09.2014 in Sessions Case No.1 2014. By virtue of the said judgment the appellanthas been convicted for theoffence of murdering her husbandpunishable underSection 302 of the Indian Penal Code. She has been sentenced to sufferimprisonment for life and pay a fine of Rs.1000 or suffer rigorousimprisonment for two months. 2.We have heard the learned advocate for the appellant and thelearned prosecutor on behalf of the prosecution. With their assistance wehave gone through the appeal paper book the record and proceedings andthe muddemal.3.The prosecution has been successful in proving the chargeleveled upon the accused on the basis of the following factors:who is the son of the deceased. Tukaram narrated thatthere used to be frequent quarrels between his parents. On one occasion his father had fractured the limb of his mother and in a subsequent fight the appellant had fractured the limb of the deceased.had killed“Anna”alleging that his mother theappellant herein had murdered his father Ganpat Landge.(b)The appellant herself went to the Police Station on10.10.2013 and narrated her story of daily quarrels with her husband dueto which she murdered her husband.8 SCC450 and Mallikarjun and others vs. State of Karnataka 8 SCC359 either he has been won over or threatened etc.. Nevertheless suchconduct of a panch witness cannot be countenanced. 10.PW 2 Tukaram Ganpatrao Landge is the first informant. He isthe son of the deceasedand appellant accusedand denied hispresence. In his cross examination as permitted by the Trial Court uponbeing declared hostile he has denied that pieces of bangles wooden log blanket pillow saree and blouse were lying in the room or that thosearticles were seized by the police under the panchanama. The appellant ishis relative and he had signed the panchanama without reading it. Hedenied that the clothes of the deceased were seized under thepanchanama in his presence. Unfortunately the prosecutor has notproperly cross examined PW 5 so as to expose his somersault and taking astand which would defeat the justice dispensation system. Considering thelaw laid down in Sanjeev Nanda and Mallikarjunthe conduct ofPW 5 cannot be countenanced. 17.PW 6 Himmat Bhagurao Kale claimed that he was present inthe police station Ambajogai on 11.10.2013. The police asked him to signthe panchanama. Accordingly he signed it and identified his twosignatures on exhibits 31 and 32. Upon being declared hostile the learnedprosecutor cross examined him. He denied that the appellant was presentat the police station or that the appellant has made a voluntary statement on 19 01 2021 on 05 02 19 crapeal40o15that she would hand over the stone and wire from her house. He deniedthat the statement of the appellant was reduced into writing andthereafter PW 6 has signed it. He then admitted that the appellant was hisrelative. This is yet another case of a witness turning hostile which hasfacilitated an advantage to the appellant. 18.PW 7 Pradip Tribhuvan is the Investigating Officer. He hasstated that the appellant accused had come to his police station and hadadmitted of having murdered her husband. The I.O. rushed to the spot andprepared the spot panchanama. The panchanamawasidentified by the PW 7. It bears the signatures of the panchas. Pieces ofbangles a wooden log a blackish colour blanket old bucket faint skycolour blouse sky colour saree stained with blood and a sample of bloodstained earth were seized in the panchanama. He identified the complaint(exhibit 16) and his signature along with that of the complainant. It alsocarried the endorsement and signature of a PSO. The clothes of thedeceased were seized after the postmortem and a panchanamawas prepared.19. PW 7 then contended that the appellant had made avoluntary statement. The appellant had stated that she will handover thestone and wire. The investigation team and the appellant proceeded to herhouse. She handed over the stone kept behind the steel tank. She herselfhanded over a wire kept in the middle room. The muddemal articles and on 19 01 2021 on 05 02 20 crapeal40o15clothes were sent to the forensic laboratory for examination. In cross examination PW 7 denied that the appellant and her son PW 2 wereresiding in a tin room. 20.Considering the deposition of witnesses it is obvious thatdoubt has been created as to whether PW 2 had gone to sleep for thenight with his sister Satyasheela and that it was only the deceased and theappellant who were alone in the room in which the crime was committed.Section 106 of the Indian Evidence Act is therefore not applicable to thiscase. Five out of seven witnesses have turned hostile and have not madeany statement which could have been accepted as being a corroboration tothe evidence brought on record by the prosecution in the light of thejudgments in Yomeshbhai Pranshankar Bhatt vs. State of Gujarat 2 SCC 455. Even a little portion of the testimony favouring theprosecution and being corroborated by other pieces of evidence found inthe testimonies of these hostile witnesses could be used as substantiveevidence. The Honourable Supreme Court has crystallized the law in acatena of judgments that even a part of the testimony of a hostile witnesssupporting the case of the prosecution.21.We therefore find that the conclusion of the Trial Court thatthe quarrels between the appellant and the deceased were proved from on 19 01 2021 on 05 02 21 crapeal40o15the evidence of PW 2 and PW 3 on the basis of the FIR is unacceptable.The FIR cannot be used as substantive piece of evidence. The story of aneighbouras regards daily quarrels between the two is held to besufficient evidence to prove the said fact when PW 2 has introduced atotally different theory before the Trial Court. 22.The Trial Court has concluded that though the panchwitnesses have not supported the prosecution the admission of theappellant in her statement under Section 313 that the bangle pieces awooden plank a blanket a blouse a saree were found at the place of theincident is significant. The blood stains appearing on her clothes havebeen explained by her by saying that she has lifted the body of thedeceased and therefore since the appellant was alone with the deceased she has to explain as to how the incident had occurred.23.We find such conclusion to be unsustainable since PW 2 hasclearly stated that he had gone to sleep in one room along with his mother(appellant) and the deceasedwas sleeping in an adjacent room.We however agree with the Trial Court only on one count and which is that the learned prosecutor has not properly or skillfully cross examinedthe hostile witnesses and it appears that he has halfheartedly and casuallyconducted the cross examination. Even the photographs of the dead bodyand the interiors of the room though clicked were not proved by theprosecution. The articles were sent to the forensic laboratory and yet the on 19 01 2021 on 05 02 22 crapeal40o15carrier of such articles was not examined by the prosecution. Though thefirst information was said to have been given by the appellant herself byreaching the police station which was entered in the station diary by theSHO and though the extract of the station diary was produced on record the said SHO was not examined and the extract of the station diary wasnot even exhibited much less it s contents being proved. 24.Notwithstanding the factual position as above the Trial Courthas held that the charge against the appellant is proved as articles andclothes were stained with blood and the deceased and the appellant wereall alone in a room in the house. 25.It is now a crystallized position of law that if the case of theprosecution appears to be improbable or a doubt has been created on thebasis of the evidence available or if two views are possible the view infavour of the accused has to be accepted and the benefit of doubt has to begiven to the accused. Keeping in view that the prosecution has conductedthe trial in a casual and halfhearted manner five out of seven witnesseshave turned hostile and as material witnesses have not been examined that we are constrained to grant the benefit of doubt to the appellant accused and order her acquittal.26.In the result this Criminal Appeal is allowed. The impugnedjudgment and order dated 11.09.2014 in Sessions Case No.1 2014 isquashed and set aside. The appellant accusedwho is about 75 years of age today is hereby acquitted from thecharge of committing an offence punishable under Section 302 of theIndian Penal Code. The amount of fine of Rs.1000 if deposited by theappellant accused shall stand refunded to her. The muddemal propertybe destroyed after the appeal period is over. The record and proceedingsbe returned back to the Sessions Court.27.Before parting as has been observed by us in a judgmentdelivered in the State of Maharashtra vs. Krishna Sitaram Pawar CriminalConfirmation Case No.2 2020 decided on 22.12.2020 and keeping in viewthe law laid down in Ramji Duda Makwana vs. The State of Maharashtra 1994 Cri.L.J. 1987and State through PS LodhiColony New Delhi vs. Sanjeev Nanda 8 SCC 450 we find itappropriate to hold that we cannot turn a blind eye to the menace ofhostile witnesses and we cannot find ourselves helpless as against theconduct of the hostile witnesses. Less said the better insofar as the learnedprosecutor is concerned who has taken no efforts in conducting the trialefficiently. We are finding practically in every case before us that day byday the list of hostile witnesses is getting enlarged and the witnesses aregetting emboldened in turning hostile for the reasons which can bespeculated and perceived. The reasons for turning hostile could includethreats coercion and pressure tactics. However it is a matter of a greatconcern if the witnesses turn hostile for extraneous considerations and on 19 01 2021 on 05 02 24 crapeal40o15such hostile witnesses begin to believe that they are far beyond the reachof the arms of law. This would not only be a serious ailment disease tothe justice dispensation system but could as well be cancerous to the ruleof law and the justice delivery system. Though the respect for law cannotbe ensured by the threat of legal action the time has come to initiateaction against hostile witnesses in all such cases so as to send out amessage loud and clear to the society at large that the witnesses becominghostile cannot be ignored or pardoned.28.As such we direct the Trial Court to initiate the action underSection 340 of the Code of Criminal Procedure against all hostile witnessesin this case.29.A copy of this judgment be forwarded to the learned PrincipalDistrict & Sessions Judges in the State of Maharashtra for being circulatedto all Additional District & Sessions Judges and Judicial Officers so as toapprise them as regards the action to be initiated against the hostilewitnesses in appropriate cases.kps (RAVINDRA V. GHUGE J.)

Petitioner’s bail rejected under POSCO Act: Karnataka High court

Protection of child from Sexual Offences Act commonly referred to as POSCO Act 2012, this act has been enacted to protect children from offences of sexual assault, sexual harassment and pornography provided for establishment for special courts for trial of such offences and related matters and incidents. The criminal petition is filed under section 439 of CR.P.C (special powers of high court or court of session regarding bail) praying for the enlargement on bail for the offence punishable under sections 366 ( kidnapping, abducting and inducing women to compel her marriage, etc), 376(2)(n) (selling minor for purposes of prostitution) of IPC and sections 6( Punishment for aggravated penetrative sexual assault) and 17( punishment for abetment ) of the POCSO Act and Sections 9( punishment for male adult marring a child) , 10( punishment for solemnisation child marriage and 11 ( punishment for promoting or permitting solemnisation child marriage) of the Prohibition of Child Marriage Act. And the petition was rejected by the High court of Karnataka through the learned bench led by the Honorable Mr. Justice H P Sandesh in the case of Salman vs state of Karnataka ( criminal petition no. 9804/2021) on 20th January 2022. Brief facts of the case are that the mother of the victim girl had lodged the complaint stating that her daughter is missing on 4th September 2021 and hence Crime is registered for the offence punishable under Sections 363 of IPC and thereafter the victim girl was secured and her 164 statement was recorded, wherein she has stated that the petitioner took her telling that he would marry her. The petitioner took the victim girl to Hassan and married her and thereafter subjected her for sexual act against her wish. He kept her in Tiptur and used to attend the work. The police have investigated the matter and filed the charge-sheet for the offence punishable under Section 366 of IPC, Sections 9, 10 and 11 of the Prohibition of the Child Marriage Act and Sections 6 and 17 of the POCSO Act. Arguments presented by the learned counsel appearing on behalf of the petitioner that the victim girl is aged about 17 years and this petitioner has been falsely implicated in the case and there was an unexplained delay in lodging the complaint and the charge-sheet material do no reveal prima facie case for the offence punishable under Section 376 of IPC and there is no any medical evidence and hence the petitioner may be enlarged on bail. The petitioner is in custody from 8th October 2021 and no custodial trial is required. Arguments presented by learned high court government pleader appearing on behalf of the respondent-state that the victim girl is aged about 16 years and this petitioner took her to Hassan and married her and subjected her for sexual act knowing fully well that she is a minor and even in the absence of medical evidence she made a statement before the learned Magistrate stating that she was subjected to sexual act by the petitioner. After hearing both the counsels and looking into content of the case , it is clear from the records which was presented before the Honorable court that the victim was minor and she was subjected to sexual acts against her wishes. As a result the court rejected the bail petition. 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.9804 2021 BETWEEN: SALMAN S O RIYAZ OCC: WELDER AGED ABOUT 20 YEARS R O CHAMUNDI LAYOUT 1ST CROSS GANDHINAGARA TIPTUR TALUK TIPTUR TUMKUR DISTRICT 572201. ...PETITIONER BY SRI P.B. UMESH ADVOCATE FOR SRI R.B. DESHPANDE ADVOCATE) 1. 2. THE STATE OF KARNATAKA BY SAGAR TOWN POLICE STAION SAGAR SUB DIVISION SHIVAMOGGA DISTRICT 577401. REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDINGS BENGALURU 560001). SMT. RESHMA W O NAZEER KHAN OCC: HOUSEHOLD WORK AGED ABOUT 34 YEARS R O BACKSIDE OF LIC OFFICE KADUR TOWN CHIKKAMAGALURU DISTRICT 577548. BY SRI K.K. KRISHNA KUMAR HCGP FOR R 1) ...RESPONDENTS THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN SPL.C.NO.1013 2021 ON THE FILE OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGE FTSC 1 CR.NO.173 2021 FOR SAGAR TOWN P.S. SHIVAMOGGA DISTRICT FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 366 AND 376(2)(n) OF IPC AND SECTIONS 6 AND 17 OF POCSO ACT AND SECTIONS 9 10 AND 11 OF PROHIBITION OF CHILD MARRIAGE ACT. THIS CRIMINAL PETITION COMING ON FOR ORDERS THROUGH VIDEO CONFERENCE THIS DAY THE COURT MADE THE O R D E R This petition is filed under Section 439 of Cr.P.C. seeking regular bail of the petitioner in Crime No.173 2021 of Sagar Town Police Station Shivamogga District for the offence punishable under Sections 366 and 376(2)(n) of IPC and Sections 6 and 17 of the Protection of Children from Sexual Offences Act 2012 and Sections 9 10 and 11 of the Prohibition of Child Marriage Act. 2. Heard the learned counsel for the petitioner and the learned High Court Government Pleader appearing for the respondent State. 3. The factual matrix of the case is that the mother of the victim girl had lodged the complaint stating that her is missing on 04.09.2021 and hence Crime No.173 2021 is registered for the offence punishable under Sections 363 of IPC and thereafter the victim girl was secured and her 164 statement was recorded wherein she has stated that the petitioner took her telling that he would marry her. The petitioner took the victim girl to Hassan and married her and thereafter subjected her for sexual act against her wish. He kept her in Tiptur and used to attend the work. The police have investigated the matter and filed the charge sheet for the offence punishable under Section 366 of IPC Sections 9 10 and 11 of the Prohibition of the Child Marriage Act and Sections 6 and 17 of the POCSO Act. learned counsel the petitioner would vehemently contend that the victim girl is aged about 17 years and this petitioner has been falsely implicated in the case and there was an unexplained delay in lodging the complaint and the charge sheet material do no reveal prima facie case for the offence punishable under Section 376 of IPC and there is no any medical evidence and hence the petitioner may be enlarged on bail. The petitioner is in custody from 08.09.2021 and no custodial trial is required. learned High Court Government Pleader appearing for the respondent State would submit that the victim girl is aged about 16 years and this petitioner took her to Hassan and married her and subjected her for sexual act knowing fully well that she is a minor and even in the absence of medical evidence she made a statement before the learned Magistrate stating that she was subjected to sexual act by the petitioner. When such being the facts of the case it is not a fit case to exercise the powers under Section 439 of Cr.P.C. Having heard the learned counsel for the petitioner and the learned High Court Government Pleader appearing for the respondent State and also on perusal of the material on record it is clear that her date of birth is 13.04.2005 and she was aged about 16 years as on the date of subjecting her for sexual act. The very victim girl made the statement before the learned Magistrate that she was subjected to sexual act against her wish and the petitioner used to keep her in the house at Tiptur and attending work. When such being the factual aspects of the case the victim girl is below the age of 18 years as defined under Section 2(d) of the POCSO Act and she was taken to different places from her native place and in the guise of marrying her subjected her for sexual act and married the minor girl. Hence it is not a fit case to exercise the discretion in favour of the petitioner when the minor girl was subjected to In view of the discussions made above I pass the The petition is rejected. The Trial Judge is directed to dispose of the matter as early as possible. Sd sexual act.

Copyright protection is available only to the cinematograph film including the sound track: High Court Of New Delhi

This is an application filed by the plaintiff seeking an ex-parte ad interim injunction to restrain the defendant, and the same issue was held in the judgement passed by a single bench judge comprising HON’BLE MR. JUSTICE JAYANT NATH, in the matter SHRI RISHI RAJ V. SAREGAMA INDIA LTD dealt with an issue mentioned above. The accompanying suit is filed by the plaintiff stating that it is carrying on the business of film production, distribution and exhibition IA No.6852/2017 & 1414/2020 in CS(COMM) 403.2017 under the name and style of ‘RAJ RISHI FILM’. Apart from the film the plaintiff is also said to be engaged in the business of acquiring negative rights of various films from different producers which are approximately 250 in number. Regarding the defendant, it was stated that they have engaged in the act of copyright infringement, since, it is involved in the unauthorised exploitation of sound recording as well as audio-visuals of such songs etc. It was also stated that the defendant was been misrepresenting itself to be the copyright holder of the sound recordings as well as audiovisuals of such songs incorporated in the aforesaid films rights of which exclusively vest with the plaintiff alone. Later the defendant in the written statement states that the defendant is in the business of acquiring copyright in many sound recordings and literary, musical and dramatic works. It was stated that the plaintiff‘s rights are limited to the assignment of alleged rights in the negatives of the impugned cinematograph films, which are only rights over the source material of the impugned cinematograph films. Meanwhile, they also stated that this application came up on the first date i.e. 30.05.2017 for a hearing notice was issued in the matter. The matter was then sent for the recording of evidence were the issue which was framed by the court on 12.12.2019. On 12.12.2019, the issues were framed: Issue No.1 is as to whether the plaintiff has copyright over the sound recording and the underlying works of the cinematograph films forming the subject matter of the present dispute. Further, reference may also be had to the ‘List of Documents’ filed by the plaintiff. As an example, I may have a look at the first agreement dated 01.05.1999, which pertains to the films, ―Ankh Ka Tara‖, Hindi, ―Nagin Aur Suhagn, Hindi etc. Accordingly, it was mentioned that the defendant will maintain true and appropriate accounts of all revenue generated from the songs of the films spelt out of the plaint. If at any stage, this court directs the filing of the said accounts, the defendant will forthwith file the same on an affidavit.  With the above directions, the present application is disposed of. Now IA.No.1414/2020 14. This application was filed by the plaintiff in January 2020 after issues were framed stating that the plaintiff along with the plaint had filed copies of 58 agreements in respect of the films in support of its claim, It is however claimed that the plaintiff noticed 9 more agreements at the time of further scrutiny, were the agreements which were entered into with various producers right holders which were not filed due to inadvertence. However, in the reply, the defendant states that the plaintiff has not been able to provide sufficient and reasonable cause or explanation for filing the additional documents at this belated stage. The suit is at the stage of evidence, the plaintiff cannot be allowed to produce any additional documents at this belated stage without giving a reasonable cause for non-filing of the same. The judgment of the Supreme Court in the case of Sudhir Kumar @ S. Baliyan vs. Vinay Kumar G.B. being 2021 SCC OnLine SC 734, decided on 15.09.2021 was also helpfully to give a decision. Later it was said that the facts of the present case, it is obvious that the documents which are now sought to be filed by the plaintiff were in the power and possession of the plaintiff. The only ground urged for not filing the documents with the plaint is that it was by an inadvertent error. The court perused the facts and argument’s presented, it thought that- “The suit was filed in 2017 and the application for filing additional documents had been filed three years later in 2020 merely stating inadvertent error. In my opinion, there is no reasonable cause given by the plaintiff for not filing the additional documents along with the plaint. The application is belated. The plaintiff cannot be permitted to rely on the documents as sought. The application is accordingly dismissed”.

IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment Reserved on: 08.03.2021 Judgment Pronounced on: 09.11.2021 CS(COMM) 403 2017 SHRI RISHI RAJ Plaintiff Through Mr.Harish Malhotra Sr.Adv. with Mr.Rajender Agarwal Adv. SAREGAMA INDIA LTD. ..... Defendant Through Mr.Sanjeev Sindhwani Sr.Adv. with Mr.Ankur Sangal Ms.Sucheta Roy and Ms.Richa Bhargava Advs. HON BLE MR. JUSTICE JAYANT NATH JAYANT NATH J.IA No.6852 2017 & 1414 2020 This is an application filed by the plaintiff seeking an ex parte ad interim injunction to restrain the defendant its directors officers etc. from licensing or exploiting in any manner including through physical formats such as CDs DVDs magnetic tapes pen drives and or on the internet through their website www.saregama.com or any other websites software application the copyrighted works viz. sound incorporated in various cinematographic films as well as audio visuals of such songs. The accompanying suit is filed by the plaintiff stating that it is carrying on the business of film production distribution and exhibition IA No.6852 2017 & 1414 2020 in CS(COMM) 403.2017 under the name and style of ‗RAJ RISHI FILM‘. Apart from the film production distribution and exhibition the plaintiff is also said to be engaged in the business of acquiring negative rights of various films from different producers which are approximately 250 in number. However it is stated that the present suit is confined to only infringement caused by the defendant to144 films which are stated in para 2 of the plaint. It is urged that in terms of the agreements of the respective producers negative right holders it is only the plaintiff alone who is entitled to deal with the said films and is the copyright holder of the said films. Regarding the defendant it is stated that they have engaged in the act of piracy copyright infringement inasmuch as it is involved in the unauthorised unlicensed exploitation licensing of sound recording as well as audio visuals of such songs etc. It is stated that the plaintiff having acquired negative rights of such films it is the plaintiff who alone is the recorded owner of the aforesaid films and is the copyright holder of all the rights flowing from the said films which includes the performing copyrights in its story songs music etc. It is stated that the defendant has been misrepresenting itself to be the owner copyright holder of the sound recordings as well as audio visuals of such songs incorporated in the aforesaid films rights of which exclusively vest with the plaintiff alone. It is further stated that a notice dated 29.04.2017 was sent to the defendant to render accounts of the amount earned by the defendant by usage of composition in musical works and lyrics and other losses were also sought. The defendant sent a reply dated 19.05.2017 denying the stand of the IA No.6852 2017 & 1414 2020 in CS(COMM) 403.2017 The defendant in the written statement states that the defendant is in the business of acquiring copyright in many sound recordings and literary musical and dramatic works. The defendant possesses one of the richest catalogues of Hindi and other Indian language film and non film music especially old film soundtracks. It is stated that the plaintiff‘s rights are limited to assignment of alleged rights in the negatives of the impugned cinematograph films which are only rights over the source material of the impugned cinematograph films and may extend to the rights of theatrical distribution satellite broadcasting etc. of the cinematograph films as a whole. On a perusal of the agreements it is stated that it is evident that the assignment of the rights by the producers right holders of the impugned cinematograph films to the plaintiff do not extend to the separate right over the sound recordings which are a part of the impugned cinematograph films including the impugned works forming part of the aforesaid cinematograph films. In terms of some of the agreements filed by the plaintiff the producers right holders impugned cinematograph films have acknowledged the rights of the defendant in the impugned works incorporated in the aforesaid films. The producers have only assigned the right to receive royalties from realisation received from gramophone companies for records discs music cassettes etc. to the plaintiff. No rights in the impugned works themselves have been assigned to the plaintiff. It is stated that the rights in the sound recordings and cinematograph films as a whole can be assigned to different entities. Hence it is urged that any alleged assignment of the negative cinematograph films to the plaintiff does not affect the assignment of separate copyright in the impugned work i.e. sound recordings to the IA No.6852 2017 & 1414 2020 in CS(COMM) 403.2017 defendant. The defendant is the actual owner of the copyright over the impugned works by virtue of provisions of the Copyright Act 1957. I may note that when this application came up on the first date i.e. 30.05.2017 for hearing notice was issued in the matter. This court had framed the issues on 12.12.2019 and the matter had been sent for recording of evidence. On 12.12.2019 the following issues were framed: ―i. Whether the plaintiff has any copyright over the sound recording and the underlying works of the cinematograph films forming the subject matter of the present dispute OPP ii. Whether the defendant is infringing the copyright of the plaintiff in the sound recordings and underlying works of the cinematograph films forming the subject matter of the present suit OPP iii. Whether the defendant is the actual owner and has copyright over the impugned works by virtue of the Copyright Act and the defendant is holding copyright in respect of the sound to reproduce and recording communicate the same to the public by any mode or medium including TV cable TV radio internet mobile as claimed by the defendant OPD literary musical works iv. Whether the plaintiff is entitled for a decree of permanent injunction as claimed OPP v. Whether the plaintiff is entitled to mandatory injunction as prayed OPP vi. Whether the plaintiff is entitled for a decree for rendition of account and claim damages from the defendant as claimed in the plaint OPP vii. Relief.‖ IA No.6852 2017 & 1414 2020 in CS(COMM) 403.2017 plaintiff. Issue No.1 is as to whether the plaintiff has copyright over the sound recording and the underlying works of the cinematograph films forming the subject matter of the present dispute. The onus to prove this issue is on the Clearly these are facts which will have to be gone into after the parties have led their evidence. 10. Further reference may also be had to the ‗List of Documents‘ filed by the plaintiff. As an example I may have a look at the first agreement dated 01.05.1999 which pertains to the films ―Annkh Ka Tara‖ Hindi ―Nagin Aur Suhagn‖ Hindi etc. Narration reads as follows: ―The above negative rights include all rights which are existing at present or which may occur in future to be utilised through any source or media for all purposes and all sizes including TV telecasting rights satellite rights cable TV rights DVD rights for whole world including India. the 2nd party has approached the First Party(PRODUCERS) to assign the 2nd party the negative rights which includes picture and Non commercial Theatrical Non the Exhibition Exploitation and Theatrical Rights of Distribution of all GUAGE StandardALL DIMENSIONS and mediums of the said PICTURE for ENTIRE INDIA AND OVERSEAS. Have irrevocably agreed to FILM TRADE and WHEREAS the PRODUCERS have irrevocably agreed to assign the said RIGHTS of the VIDEO FILM to 2nd Party on the terms and conditions as under‖ IA No.6852 2017 & 1414 2020 in CS(COMM) 403.2017 11. A bare reading of the above clause shows that the issue raised by the plaintiff about its stated exclusive rights in the cinematographic films as compared to the separate right over sound recordings is an issue that would require closer and better examination after evidence is completed. At this stage it cannot be said that prima facie a case has been made out in favour of this plaintiff. 12. The defendant will maintain true and appropriate accounts of all revenue earnings generated from the songs of the films spelt out in para 2 of the plaint. If at any stage this court directs filing of the said accounts the defendant will forthwith file the same on an affidavit. 13. With the above directions the present application is disposed of. 14. This application was filed by the plaintiff in January 2020 after issues were framed stating that the plaintiff along with the plaint had filed copies of 58 agreements in respect of the films in support of its claim. It is however claimed that at the time of further scrutiny of records in order to file an affidavit of evidence the plaintiff noticed 9 more agreements which were entered into with various producers negative right holders which were not filed due to inadvertence. Hence the present application praying that the additional documents which have already been filed by the plaintiff along with an affidavit on 07.01.2020 be allowed to be taken on record. 16. However in the reply the defendant states that the plaintiff has not been able to provide sufficient and reasonable cause or explanation for filing the additional documents at this belated stage. It is stated that the additional documents would have been in power possession in custody of the plaintiff IA No.6852 2017 & 1414 2020 in CS(COMM) 403.2017 at the time of the filing of the present suit. The suit is at the stage of evidence the plaintiff cannot be allowed to produce any additional documents at this belated stage without giving a reasonable cause for non 17. Order 11 Rule 1 CPC as applicable to Commercial Suits reads as filing of the same. ―ORDER XI DISCLOSURE DISCOVERY AND INSPECTION OF DOCUMENTS IN SUITS BEFORE THE COMMERCIAL DIVISION OF A HIGH COURT OR A COMMERCIAL COURT 1. Disclosure and discovery of documents.—(1) Plaintiff shall file a list of all documents and photocopies of all documents in its power possession control or custody pertaining to the suit along with the plaint including:— a) documents referred to and relied on by the plaintiff in the plaint b) documents relating to any matter in question in the proceedings in the power possession control or custody of the plaintiff as on the date of filing the plaint irrespective of whether the same is in support of or adverse to the plaintiff‘s case c) nothing in this Rule shall apply to documents produced by plaintiffs and relevant only for the cross examination of the defendant‘s witnesses or in answer to any case set up by the defendant subsequent to the filing of the plaint or iii) handed over to a witness merely to refresh his memory. 3) The plaint shall contain a declaration on oath from the plaintiff that all documents in the power possession control or facts and custody of circumstances of the proceedings initiated by him have been disclosed and copies thereof annexed with the plaint and that the plaintiff pertaining IA No.6852 2017 & 1414 2020 in CS(COMM) 403.2017 the plaintiff does not have any other documents in its power possession control or custody. Explanation.A declaration on oath under this sub rule shall be contained in the Statement of Truth as set out in the Appendix. 4) In case of urgent filings the plaintiff may seek leave to rely on additional documents as part of the above declaration on oath and subject to grant of such leave by Court the plaintiff shall file such additional documents in Court within thirty days of filing the suit along with a declaration on oath that the plaintiff has produced all documents in its power possession control or custody pertaining to the facts and circumstances of the proceedings initiated by the plaintiff and that the plaintiff does not have any other documents in its power possession control or custody. 5) The plaintiff shall not be allowed to rely on documents which were in the plaintiff‘s power possession control or custody and not disclosed along with plaint or within the extended period set out above save and except by leave of Court and such leave shall be granted only upon the plaintiff establishing reasonable cause for nondisclosure along with the 18. Hence as per the scheme of the afore noted provisions the plaintiff has to file the list of all documents and photocopies of all documents in his power possession control or custody pertaining to the suit alongwith the plaint. He has to also file a declaration on oath that all documents in his power possession control or custody pertaining the facts and circumstances of the proceedings have been disclosed and copies thereof have been annexed with the plaint and that the plaintiff does not have any other documents in his power possession control or custody. When the suit was filed the plaintiff did file the afore noted declaration by way of IA No.6852 2017 & 1414 2020 in CS(COMM) 403.2017 19. The ground now given in the application is inadvertence namely that the plaintiff has filed 58 agreements in respect of the films however at the time of preparing affidavit by way of evidence it is claimed that the plaintiff noticed 9 more agreements which were not filed due to inadvertence. Would this inadvertence constitute a reasonable cause for non disclosure of these documents along with the plaint In the above context reference may be had to the judgment of the Supreme Court in the case of Sudhir Kumar @ S. Baliyan vs. Vinay Kumar G.B. being 2021 SCC OnLine SC 734 decided on 15.09.2021. The Supreme Court held as follows: ―33. It emerges from the record that the first suit was filed by the plaintiff in the month of October 2018 bearing TM No.236 of 2018 restraining the defendant from infringing and passing off plaintiff‘s Trade Marks. That an ex parte interim injunction was passed in favour of the plaintiff by order dated 29.10.2018. It appears having realized and found that the earlier suit was not in consonance with the provisions of the Commercial Courts Act the plaintiff withdrew the said suit being TM No.236 of 2018 on 27.07.2019 with liberty to file a fresh suit as per the Commercial Courts Act 2015. Therefore the second suit was filed on 31.08.2019 and within a period of thirty days from filing of the second suit the appellant herein original plaintiff preferred the present application seeking leave of the court to file additional documents. In the application it was specifically mentioned that so far as the invoices are concerned the same were not in its possession at the time of the filing of the plaint and so far as the other documents are concerned they were not filed due to they being voluminous. Therefore so far as the to be relied on produced as additional invoices sought documents ought to be relied on produced as it was specifically asserted that they were not in his possession at the time of filing of the plaint suit. to have been permitted IA No.6852 2017 & 1414 2020 in CS(COMM) 403.2017 36. Now so far as the other documents sought to be relied on produced as additional documents other than the invoices are concerned the same stands on different footing. It is not disputed and in fact it was specifically admitted and so stated in the application that those additional documents other than the invoices were in their possession but not produced being voluminous and that the suit was filed urgently. However it is to be noted that when the second suit was filed it cannot be said to be urgent filing of the suit for injunction as the first suit was filed in the month of October 2018 and there was an ex parte ad interim injunction vide order dated 29.10.2018 and thereafter plaintiff withdrew the said first suit on 27.07.2019 with liberty to file a fresh suit as per the Commercial Courts Act and the second suit came to be filed on 31.08.2019 after period of one month of the withdrawal of first suit. Therefore the case on behalf of the plaintiff that when the second suit was filed it was urgently filed therefore the additional documents sought to be relied upon other than the invoices were not filed as the same were voluminous cannot be accepted. And therefore as such Order XI Rule 1 shall not be applicable though the application was filed within thirty days of filing of the second suit. While seeking leave of the court to rely on documents which were in his power possession control or custody and not disclosed along with plaint or within the extended period set out in Order XI Rule 1 the plaintiff has to establish the reasonable cause for non disclosure along with plaint. 37. In view of the facts and circumstances narrated hereinabove and in view of the filing of the first suit in the month of October 2018 the ex parte ad interim injunction order in favour of the plaintiff dated 29.10.2018 withdrawal of the first suit on 27.07.2019 and subsequently the filing of the second suit on 31.08.2019 non filing of the additional documents other than the invoices on the ground of they being voluminous cannot be said to be a reasonable cause for non disclosure filing along with plaint. There was sufficient time gap between the filing of the first suit and filing of the second suit i.e. approximately 10 months and therefore when the second suit IA No.6852 2017 & 1414 2020 in CS(COMM) 403.2017 was filed the plaintiff was having sufficient time after filing of the first suit to file the additional documents other than the invoices at the time when the second suit was filed. Therefore as such both the courts below have rightly not permitted the plaintiff to rely upon the documents other than the invoices as additional documents in exercise of the powers under Order XI Rule 1read with Order XI Rule 1403.2017

CBI investigation should be ordered in the rarest of rare cases otherwise CBI would be flooded with a large number of cases : High Court of Delhi

CBI would be flooded with a large number of cases if it starts investigating every cases and with limited resources may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations and same was upheld by High Court of Delhi in the case of MANOHAR LAL SHARMA ADVOCATE vs. UNION OF INDIA & ORS (W.P.(CRL) 444/2022) on 03rd March, 2022. Facts of the case are as Petitioner states clause 151 of Article of Association of the DMRC stipulates that an agreement should be signed by two Directors or by one Director and Secretary of DMRC. He states that in the present case, the impugned agreement was signed by a Director (Works) alone, which is contrary to Clause 151 of the Article of Association of DMRC and the impugned agreement is contrary to public policy and Section 73 of the Indian Contract Act and is an outcome of fraud. Petitioner appearing in person states that the validity of the impugned agreement has not been challenged by DMRC which reflects that a fraud is being played upon the State and is an indication of the corruption prevalent in all the transactions relating to the impugned agreement. Petitioner seeks registration of an FIR and investigation by the CBI under Sections 409, 420, 120-B IPC read with Prevention of Corruption Act, 1988. The Court is of the opinion that even if the argument that the impugned agreement is not signed by the competent authority is accepted, then also it would not constitute an offence to be investigated by the CBI. Court is further of the opinion that a CBI investigation should be ordered in the rarest of rare cases and the present writ petition is premature, as CBI has not had reasonable time to examine the complaint. It is, however, made clear that it is open for the CBI to take a decision which it deems fit and appropriate in the present case.

IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(CRL) 444 2022 & C.M.Nos.3850 3851 2022 MANOHAR LAL SHARMA ADVOCATE Petitioner in person with Ms.Suman UNION OF INDIA & ORS Through: Mr.Ajay Digpaul CGSC with Mr.Kamal R.Digpaul and Ms.Pinky Yadav Advocates for UOI Mr.Rahul Mehra Sr.Advocate with Mr.Sanjay Law standing counsel for Mr.Anupam S.Sharma SPP CBI with Mr.Prakash Airan and Mr.Harpreet Kalsi Advocates HON BLE MR. JUSTICE MANMOHAN HON BLE MR. JUSTICE SUDHIR KUMAR JAIN Date of Decision: 03rd March 2022 JUDGMENT MANMOHAN J145 2021 EX.APPL.(OS) 1008 2021 1282 2021 and 38 2022 Petitioner who appears in person states that Clause 151 of Article of Association of the DMRC stipulates that an agreement should be signed by two Directors or by one Director and Secretary of DMRC. He states that in the present case the impugned agreement was signed by a Director3 SCC 571 has held as under: “Before parting with the case we deem it necessary to emphasise that despite wide powers conferred by Articles 32 and 226 of the Constitution while passing any order the Courts must bear in mind certain self imposed limitations on the exercise of these constitutional powers. The very plenitude of the power under the said articles requires great caution in its exercise. Insofar as the question of issuing a direction to CBI to conduct investigation in a case is concerned although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extraordinary power must be exercised sparingly cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise CBI would be flooded with a large number of cases and with limited resources may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with Keeping in view the fact that an arbitral award arising in pursuance to the contract in question has been scrutinised by a learned Single Judge as well as Division Bench of the High Court and the Supreme Court this Court is of the opinion that the present matter does not call for any direction in the writ jurisdiction by this Court to direct the CBI investigation This Court is further of the view that the prayer for quashing of the execution proceeding is contrary to law and completely untenable A perusal of the paperbook also reveals that the petitioner had filed its complaint dated 18th February 2022 with the CBI on 19th February 2022 only. Within two days of filing of complaint with CBI the present writ petition has been filed In the opinion of this Court examination of the present complaint by the CBI cannot be expected to be completed in two days. Consequently this Court is of the view that the present writ petition is premature as CBI has not had reasonable time to examine the complaint. This Court is confident that CBI shall examine the complaint filed by the petitioner in accordance It is however made clear that it is open for the CBI to take a decision which it deems fit and appropriate in the present case. With the aforesaid observations the present writ petition along with pending applications stands dismissed MANMOHAN J SUDHIR KUMAR JAIN J MARCH 03 2022 Page

Search, seizure, arrest and investigation in violation of Sections 41 and 42 of the ND&PS Act is illegal and the trial on the basis of illegal search, seizure and investigation could be held vitiated: The High Court of Manipur

It is settled that when a convicted person is sentenced to a fixed period of sentence and the appellate Court finds that due to practical reasons the appeal cannot be disposed of expeditiously, it can pass appropriate orders for suspension of sentence. The aforesaid has been laid down by the Manipur High Court in the case of Md. Sahabuddin v. State of Manipur [MC(Cril.Appeal) No.11 of 2019 in Criminal Appeal No.21 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 petitioner, who has been arrayed as first accused in Special Trial Case No.167 of 2018 on the file of the learned Special Judge, ND&PS (FTC), Manipur, was convicted under Section 21(c) 1985 and sentenced to undergo 13 years rigorous imprisonment with a fine of Rs.1,30,000/- under Section 21(c) and to undergo 7 years rigorous imprisonment with a fine of Rs.70,000/- under Section 22(b) of the ND&PS Act. This petition has been filed by the petitioner under Section 389(1) Cr.P.C. praying to suspend the operation of the judgment. It was contended by the counsel for petitioner that there are lot of infirmities in the impugned judgment and that the petitioner has got good case on merits in succeeding the appeal. The learned counsel further submitted that Section 32-A of the ND&PS Act so far as it ousts the jurisdiction of the Court to suspend the sentence imposed on a convict under the Act is unconstitutional and that when a convicted person is sentenced to a fixed period of sentence and when the convict files an appeal under any statutory right, suspension of sentence can be considered by the appellate Court liberally unless there are exceptional circumstances. It was also the submission of the learned counsel for the petitioner that recording of information in writing and the proviso for recording of grounds on his belief while carrying out arrest and search of vehicle are mandatory under Section 42 of the ND&PS Act and consequently, failure to comply with those requirements would vitiate the trial as held by the Hon’ble Supreme Court. The learned Additional Public Prosecutor submitted that the petitioner is not entitled to suspension of sentence, as it is barred by Section 32-A of the Act. He would submit that since the petitioner was convicted under Sections 21(c) and 22(b) of the Act and sentenced to undergo 13 years of rigorous imprisonment and also the petitioner is aged 41 years old, he is not entitled to suspension of sentence.

IN THE HIGH COURT OF MANIPUR AT IMPHAL MC(Cril.Appeal) No.119 in Criminal Appeal No.219 Md. Sahabuddin@Md. Shahbuddin aged about 41 years S o Md. Nizamuddin resident of LilongTairelMakhong P.O. P.S. Lilong 79513 Thoubal District Manipur. . Applicant s Versus …. Respondent s State of Manipur HON’BLE MR. JUSTICE M.V. MURALIDARAN For the Applicant s Mr. R.S. Reisang Advocate For the Respondent s Mr. Y. Ashang Learned PP Date of Hearing Judgment & Order MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219 JUDGMENT &ORDER This petition has been filed by the petitioner under Section 389(1) Cr.P.C. praying to suspend the operation of the judgment and order dated 01.10.2019 and the order of sentence dated 08.10.2019 passed by the learned Special Judge ND&PS Manipur in Special Trial Case No.167 of 2018 and to release the petitioner on bail during the pendency of the appeal. The petitioner who has been arrayed as first accused in Special Trial Case No.167 of 2018 on the file of the learned Special Judge ND&PS Manipur was convicted under Section 21(c) 1985 and sentenced to undergo 13 years rigorous imprisonment with a fine of Rs.1 30 000 under Section 21(c) and to undergo 7 years rigorous imprisonment with a fine of Rs.70 000 under Section 22(b) of the ND&PS Act to be paid within a period of four months from the date of sentence failing which the petitioner shall serve simple imprisonment for a further period of two years. Challenging the conviction and sentence imposed on the petitioner the petitioner has filed the criminal appeal before this Court. MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219 Along with the appeal the petitioner has filed petition seeking to suspend the sentence stating that he has a very good case on merits and likely to succeed the appeal filed by him on the ground that the mandatory provisions as prescribed under Sections 41 and 42 of the ND&PS Act were not complied with by the arresting authority at the time of arrest and seizure of the alleged contraband. The learned counsel for the petitioner submitted that there are lot of infirmities in the impugned judgment and that the petitioner has got good case on merits in succeeding the appeal. He would submit that the petitioner has got family and he has to look after the family. The learned counsel further submitted that the petitioner was in custody during trial and in fact while imposing sentence he was brought from Manipur Central Jail Sajiwa. The learned counsel next submitted that the appeal would not be taken up for hearing in the near future and therefore the petitioner is entitled to suspension of sentence pending appeal and that the petitioner undertakes to abide by the conditions imposed by this MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219 The learned counsel further submitted that Section 32 A of the ND&PS Act so far as it ousts the jurisdiction of the Court to suspend the sentence imposed on a convict under the Act is unconstitutional and that when a convicted person is sentenced to a fixed period of sentence and when the convicted person is sentenced to a fixed period of sentence and when the convict files an appeal under any statutory right suspension of sentence can be considered by the appellate Court liberally unless there are exceptional It is also the submission of the learned counsel for the petitioner that recording of information in writing and the proviso for recording of grounds on his belief while carrying out arrest and search of vehicle are mandatory under Section 42 of the ND&PS Act and consequently failure to comply with those requirements would vitiate the trial as held by the Hon’ble Supreme Court. In the instant case the arresting authority has violated the mandatory provision provided under the Act. The learned counsel then submitted that the provisions under Sections 41 and 42 are meant basically to protect an individual against the false implication by the arresting authority and if this MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219 protection is sought to be denied by the arresting authority then this is one of the reasons which can lead this Court may come to a prima facie but reasonable satisfaction that the petitioner might not had been involved in the crime alleged. The learned counsel further submitted that the petitioner was in custody during trial and in fact while imposing sentence he was brought from the jail. The learned counsel for the petitioner then submitted that in similar circumstances this Court suspended the sentence and released the accused on bail. According to the learned counsel for the petitioner the petitioner was on bail during trial and he had fully co operated in the trial by putting his personal appearance in almost all the hearing dates fixed by the learned Special Judge and he never violated any terms and conditions of his releasing on bail during the whole proceedings of the trial. The learned counsel for the petitioner urged that the detention of the petitioner during pendency of the appeal is a severe punishment to all his family members and prays for suspension of MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219 sentence pending appeal. In support the learned counsel for the petitioner relied upon the following decisions: Kailash Chowdhury v. State of Assam 2001 GLT 184. Beikhokim alias VeikhokinKukini v. State of Manipur 1996(II) GLT 449 FB. iii) Roy V.D. v. State of Kerala 8 SCC 590. iv) Sukhdev Singh v. State of Haryana 2 SCC Per contra the learned Additional Public Prosecutor submitted that the petitioner is not entitled to suspension of sentence as it is barred by Section 32 A of the Act. He would submit that since the petitioner was convicted under Sections 21(c) and 22(b) of the Act and sentenced to undergo 13 years of rigorous imprisonment and also the petitioner is aged 41 years old he is not entitled to suspension of sentence. The learned Additional Public Prosecutor further submitted that the High Court cannot override the bar provided under Section 32 A of the Act and that the petitioner is not entitled to the benefit of Section 389 Cr.P.C. and therefore the benefit cannot be extended to MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219 The learned Additional Prosecutor then submitted that there are various situations such as chance discovery or discovery of contraband during the normal routine frisking etc. where compliance of the provisions of Sections 41 and 42 is not required and in this regard the law is well settled. He would submit that unless the matter is considered on merits one cannot jump to a conclusion that the petitioner has a good case to succeed the appeal merely on the ground that he had raised this issue in the grounds of appeal. The learned Additional Public Prosecutor next submitted that there is no illegality and infirmity in passing the impugned judgment and the consequential sentence and therefore the question of suspension of the said judgment and order and its sentence does not arise at this stage. Further the learned Additional Public Prosecutor submitted that the petitioner is not entitled to release on bail during the pendency of the appeal at this early stage in order to maintain the balance of rules of law vis à vis public confidence on judiciary and personal liberty of the convict. This Court considered the submissions made by the learned counsel appearing on either side and also perused the materials available on record. MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219 The petitioner was convicted under Section 21(c) and 22(b) of the ND&PS Act 1985 and sentenced to undergo rigorous imprisonment of 13 years and to pay a fine of Rs.1 30 000 under Section 21(c) and 7 years rigorous imprisonment and to pay fine of Rs.70 000 under Section 22(b) in default to undergo two years simple imprisonment. The judgment of the learned Special Judge is dated 01.10.2019 and sentence was imposed on 08.10.2019 and from 08.10.2019 onwards the petitioner was in jail. instant case the petitioner challenged judgment of the learned Special Judge on various grounds as could be seen from the grounds of appeal. The petitioner has raised a ground that the learned Special Judge failed to appreciate the law laid down by the Apex Court qua arrest and search by an officer not empowered or authorized. The petitioner has also raised a ground that the informant P.W.3 has stated that he did not give information in writing to his immediate superior regarding the search of the vehicle and the arrest of four persons under Section 42 of the Act which is mandatory and consequently the failure to comply with the requirement would vitiate the trial. The petitioner also challenged the impugned judgment on the ground that the trial Court erred in convicting the petitioner under MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219 Section 21(c) of the Act as the seized contraband are controlled substance and not narcotic drugs and as such the impugned judgment and sentence are liable to be set aside. In Kailash Chowdhury the Gauhati High Court held that search seizure arrest and investigation in violation of Sections 41 and 42 of the ND&PS Act is illegal and the trial on the basis of illegal search seizure and investigation held vitiated. In Beikhokim(supra) the Full Bench of Gauhati High Court held as under: “14. On the question whether recording of the information in writing as required u s 41(1) is mandatory or not reference may also be made to sub section of Section 42 which provides that where an officer takes down any information in writing under sub section or record grounds for his belief under the proviso thereto he shall forthwith send a copy thereof to his immediate superior official. The provision clearly brings out intention of the legislature to make the aforesaid provision under Section 42(1) regarding recording of the information if any in writing to be mandatory. In fact in the last sub paragraph of paragraph 15 of the judgment of Balbir Singh’s case Supreme Court clearly observed in unqualified and unambiguous the aforesaid MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219 requirement of Section 42(1) is mandatory. Supreme Court in that case observed as follows: “The object of NDPS Act is to make stringent provision for control and regulation of operations relating to those drugs and substances. At the same time to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers certain safeguards are provided which in the context have to be observed strictly. Therefore those provisions make it obligatory that such of those officers mentioned therein on receiving an information should reduce the same to writing and also record reasons for the relief while carrying out arrest or search as provided under the proviso to Section 42(1). To that extent they are mandatory. Consequently the failure to comply with those requirements thus affects the prosecution case and therefore vitiates the trial.” In Roy V.O.the Hon’ble Supreme Court held: “14. Sub section of Section 42 contains a procedural directive to the officer who take sdown any information in writing under sub sectionor records grounds for his belief under the proviso thereto to send forthwith a copy thereof to his immediate official superior.” MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219 In Sukhdev Singh the Hon’ble Supreme Court “25. There is patent illegality in the case of the prosecution and such illegality is incurable. This is a case of total non compliance thus the question of substantial compliance would not even arise for consideration of the Court in the present case. The twin purposes of the provisions of Section 42 which an broadly be stated are that: it is mandatory provision which ought to be construed and complied with strictly and compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably post recovery sic prior It appears that the main ground urged by the petitioner for setting aside the impugned judgment is that the mandatory provisions as prescribed under Section 41 and 42 of the ND&PS Act were not complied with by the arresting authority at the time of arrest and seizure of the alleged contraband. At this stage the said aspect of the matter cannot be gone into as the same would involve arguments coupled with the judicial pronouncements in this regard. MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219 Now the point that arises for consideration is whether the petitioner is entitled to suspension of sentence imposed on him by the learned Special Judge pending appeal. The learned counsel for the petitioner contended that the appeal would not be taken up for hearing in the near future and the petitioner has got family and he has to look after his family. Under Section 32 A of the ND&PS Act no sentence awarded under the Act shall be suspended or remitted or commuted. However the Hon’ble Supreme Court in Dadu alias Tulsidas v. State of Maharashtra 8 SCC 437 held that Section 32 A is unconstitutional to the extent it takes away the right of the Court to suspend the sentence of a person convicted under the Act. In the said decision the Hon’ble Supreme Court held that taking away of the right of the executive to suspend remit and commute sentences under the Act is valid. The said decision further clarifies that the appellate Court can suspend sentence imposed under the Act subject to the conditions set out in Section 37 of the Act. At this juncture it is apposite to refer Section 37 of the Act which reads thus: MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219 “37. Offences to be cognizable and non bailable : Notwithstanding anything contained in the Code of Criminal every offence punishable under this Act shall be Procedure 1973: cognizable no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity to oppose the application for such release and the Public Prosecutor oposes application the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. The limitations on granting of bail specified in clause of sub section are in addition to the limitations under the Code of Criminal Procedure 1973 or any other law for the time being in force on granting bail.” In Dadu alias Tulsidar(supra) the Hon’ble Apex Court MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219 “25. Judged from any angle the section insofar as it completely debars the appellate courts from the power to suspend the sentence awarded to a convict under the Act cannot stand the test of constitutionality. Thus Section 32 A insofar as it ousts the jurisdiction of the court to suspend the sentence awarded to a convict under the Act unconstitutional. We are therefore of the opinion that the Allahabad High Court in Ram Charan case9 LCD 160 All) has correctly law relating constitutional validity of the section and the judgment of the Gujarat High Court in Ishwar Singh M. Rajput case 2 Guj LR 1365 cannot be held to be good law.” It is settled that when a convicted person is sentenced to a fixed period of sentence and the appellate Court finds that due to practical reasons the appeal cannot be disposed of expeditiously it can pass appropriate orders for suspension of sentence. In Bhagwan Rama ShindeGosai and others v. State of Gujarat 4 SCC 421 the Hon’ble 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 MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219 against suspension of sentence it is a different matter. Similarly when the sentence consideration for suspension of sentence could be of a different approach. But if for any 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 be 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 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.” In Union of India v. Ram Samujh and another 9 SCC 429 the Hon’ble Supreme Court held that the jurisdiction of the Court to grant bail is circumscribed by the aforesaid Section of the Act. The bail can be granted and sentence 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 while on bail and during the period of suspension of sentence. MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219 In the instant case the appellant challenged the judgment of the learned Special Judge on various grounds as could be seen from the grounds of appeal and the petitioner has got arguable case. It is to be noted that there are two accused in this case and the learned Special Judge acquitted the second accused from the charges. Anyhow this Court is not concerned with the merits of the appeal and the concern is only with regard to the point whether the petitioner is entitled to suspension of sentence pending appeal. As stated supra the Hon’ble Supreme Court in the case of Bhagwan Rama ShindeGosai(supra) held that the prayer for suspension of sentence pending appeal should be considered liberally unless there is any statutory restriction. As per the decision of the Hon’ble Supreme Court in the case of Dadu alias Thulsidas(supra) Section 32 A of the ND&PS Act does not in any way affect the powers of the authorities to grant parole and a sentence awarded under the Act can be suspended by the appellate Court. Where an appeal is preferred against conviction under the ND&PS Act 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 MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219 each case. While considering the suspension of 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 an application filed by a convict under Section 389 Cr.P.C. In the instant case 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. Therefore this Court finds that this is a fit case to suspend the sentence imposed on the petitioner pending appeal however subject to stringent conditions. As stated supra in the light of the decision of the Hon’ble Supreme Court the case of Bhagwan Rama ShindeGosai(supra) and 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. MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219 Accordingly the sentence imposed on the petitioner in Special Trial Case No.1618 dated 08.10.2019 on the file of the learned Special Judge ND&PS Manipur alone is suspended subject to the compliance of the following conditions by the petitioner: The petitioner is directed to be released on bail on his furnishing a personal bond for Rs.1 lakh with two sureties in the like sum to the satisfaction of the learned Special Judge ND&PSManipur. The petitioner on his being enlarged on bail is directed to reportbefore the learned Special Judge ND&PS FTC) Manipur on all Tuesdays and Fridays at 10.00 A.M. till the disposal of the appeal pending before this 10.00 A.M. The petitioner shall also report before the Border Affairs Police Station on the first Monday of every month at The petitioner shall not indulge in any criminal activities during the period of suspension of sentence. MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219 The Border Affairs Police is directed to monitor the petitioner and if they find the petitioner involved in any criminal activities the Border Affairs Police is at liberty to bring it to the notice of this Court through the Public The petitioner shall not leave the jurisdiction of the In case of violation of any condition the prosecution may ask for cancellation of bail. It is made clear that this Court has not delved into the merits of the appeal. Registry is directed to issue copy of this order to both the parties through their whatsapp e mail. Larson MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219

Inherent powers under S.482 Cr.P.C. not to be used in quashing FIRs under S.376 IPC: High Court of Delhi

Court cannot be inclined to quash the FIR in which offense under Section 376 IPC has been leveled against the petitioner, for the reasons that an offense under Section 376 IPC is one against the society and High Courts ought not to use the inherent powers under Section 482. This was held in PAWAN GAUR v. STATE (NCT OF DELHI) [CRL.M.C. 981/2021] in the High Court of Delhi by single bench consisting of JUSTICE SUBRAMONIUM PRASAD. Facts of the case are that FIR was filed for offenses under Sections 376 and 354 IPC against the petitioner. Both parties have entered into amicable settlement. The current petition under Section 482 of the Cr.P.C. has been filed for quashing the FIR . The Court relied on the judgement of Apex Court in Gian Singh v. State of Punjab to discuss the jurisdiction of the court to quash processing under S.482, which deals with the power of court to secure justice and prevent the abuse of court process, the Apex court in the case had observed as under, “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 offenses of mental depravity or offenses like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim’s family and the offender have settled the dispute.” The court also referred to the Supreme Court in Narinder Singh & Ors. v. State of Punjab & Anr,  wherein it was held that, “Such a power is not to be exercised in those prosecutions which involve heinous and serious offenses of mental depravity or offenses like murder, rape, dacoity, etc. Such offenses are not private in nature and have a serious impact on society. Similarly, for the offenses alleged to have been committed under special statute like the Prevention of Corruption Act or the offenses 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.”

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

A suit for passing off can continue even when suit for infringement was liable to be stayed: High Court of Delhi

A lawsuit filed for passing off to protect an unregistered trademark can continue even when the trademark infringement suit was liable to be stayed under Section 124 of the Trade Marks Act. This was upheld in the judgement passed by a bench of the High Court of Delhi consisting of Justice Asha Menon in the case of Parveen Kumar Gupta v Ravi Chadha & others [CM (M) 428/2021, CM APPL 20526/2021] pronounced on 6th August 2021. The petitioner, Parveen Kumar Gupta was first aggrieved over the fact that a lawsuit he filed against the defendants for trademark infringement and passing off their goods as his was stayed by the Trial Court. The order which was passed by ADJ-02 Central Delhi, permitted the petitioner to withdraw his petition and granted him liberty to approach the Tribunal by review petition. Upon filing a review petition, the Trial Court held that the review petition had been filed beyond the period of limitation and refused to accept the petitioner’s application under Section 5 of the Limitation Act. As a result of this the petitioner’s Review Petition was also dismissed. He filed the present petition under Article 227 of the constitution praying that the High court of Delhi quashes the impugned order, allows for the application under Section 5 of the Limitation Act and finally allows for the Review Petition dated 22nd January 2018 filed by the petitioner under Section 144 of the Code of Civil Procedure 1908. The petitioner’s counsel cited the case of J.K. Oil Industries v. Adani Wilmar Limited [2018 SCC OnLine Del 9367] to contend that when a suit is filed for infringement of trade mark as also for passing off, the filing of a rectification petition before the Intellectual Property Rights Board would result in the stay of the suit as far as infringement of trademark was concerned under the Act, however the suit should be allowed by the court. The court noted that it was settled law that Section 124 of the Trade Marks Act does not provide for stay of action in cases of passing off and is furthermore applicable only if an application for rectification or cancellation has been sought against the registered trademark and the plaintiff contends exclusively belongs to himself.

CM428 2021 IN THE HIGH COURT OF DELHI AT NEW DELHI % Reserved on: 14th July 2021 Pronounced on: 6th August 2021 + CM428 2021 CM APPL.20526 2021PARVEEN KUMAR GUPTA .....Petitioner Through: Mr. S.K. Bansal and Mr. Ajay Amitabh Suman Advocates Versus RAVI CHADHA AND ORS. .....Respondents Through: Mr. Ashish Deep Verma Ms. Kamya Ritu Verma Mr. Vijay Singh and Ms. Bharti Sharma Advocates CORAM: HON BLE MS. JUSTICE ASHA MENON JUDGMENT 1. This petition has been filed under Article 227 of the Constitution of India seeking an order to quash and set aside the impugned order dated 6th April 2021 passed by the learned ADJ 02 Central Delhi Tis Hazari Courts Delhi allow the application under Section 5 of the Limitation Act 1963 dated 30th December 2020 filed by the petitioner and further allow the Review Petition under Section 114 of the Code of Civil Procedure 1908dated 22nd January 2018 filed by the CM428 2021 petitioner in Suit bearing CS No.312 2015 titled “Parveen Kumar Gupta v. Mr. Ravi Chadha & Ors.” pending before the learned Trial Court. 2. The petitioner is aggrieved on account of the fact that his suit which he had filed against the defendants for infringement of his proprietary trade mark “RACER” as also passing off their goods as that of the petitioner and other reliefs was stayed by the learned Trial Court vide order dated 6th March 2017. This order he challenged by way of CM737 2017 which was disposed of vide order dated 6th December 2017 permitting the petitioner to withdraw that petition and granting liberty to approach the Tribunalby Review Petition. Thereafter the petitioner filed a Review Petition but the learned Trial Court was of the view that the application for review had been filed beyond the period of limitation. As a result the petitioner filed an application under Section 5 of the Limitation Act for condonation of delay on the ground that time had been spent before the Hon’ble High Court in pursuing the CMpetition. However the learned Trial Court rejected the application under Section 5 of the Limitation Act and observed that since the High Court while disposing of the CMhad not commented on limitation no ground for condonation of delay was made out. As a result thereof the Review Petition was also dismissed. 3. Mr. S.K. Bansal learned counsel for the petitioner has relied upon the judgment of this court in J. K. Oil Industries v. Adani Wilmar Limited 2018 SCC OnLine Del 9367 to submit that when a suit was filed for infringement of trade mark as also for passing off the filing of a rectification petition before the Intellectual Property Rights Board CM428 2021 would result in the stay of the suit as far as infringement of trade mark was concerned under Section 124 of the Trade Marks Act 1999 but that suit with regard to passing off was to continue. Hence it was prayed that the review of the order dated 6th March 2017 be allowed and the suit be directed to be continued qua the passing off. 4. Mr. Ashish Deep Verma learned counsel for the respondents on the other hand submitted that the court was empowered even without objections being taken to satisfy itself regarding limitation when any suit or application or appeal is filed before it. Therefore merely because the respondents had not raised such an objection would not prevent the court from looking into the issue of limitation. Further it was submitted that the application for condonation of delay was filed three years after the order dated 6th March 2017 and the filing of the application for review. There was no explanation whatsoever for not filing the application for condonation of delay during this entire time. Therefore the learned Trial Court was justified in not condoning the delay. 5. With regard to the prayer of the petitioner for continuing the suit for passing off the learned counsel submitted that since an injunction was already in force against the respondents and the respondents were not using the trade mark “RACER” no prejudice was being caused to the petitioner if the suit waited for the disposal of the rectification petition filed by the respondents before the IPRB. Thus the learned counsel submitted that the present petition deserved to be dismissed. 6. In response learned counsel for the petitioner submitted that since the High Court had allowed the petitioner to file an application for review filing of the application for condonation of delay was over CM428 2021 looked. The cause shown for not immediately filing the review application after the impugned order dated 6th March 2017 had been passed was clearly explained. The application under Section 5 of the Limitation Act was no doubt filed on 30th December 2020 but that was only because the review application remained pending since it was filed in February 2018 and no one had raised this issue of limitation till the learned Trial Court did so. In the circumstances it was prayed that the delay be condoned and directions be issued for revival of the suit qua the reliefs relating to passing off etc.. 7. A perusal of the order dated 6th March 2017 passed by the Trial Court would reveal that an application under Section 124 of the Trade Marks Act had been filed by the present respondents seeking stay of the proceedings due to initiation of rectification proceedings filed by them before the IPRB. The learned Trial Court has noted in para 3 that it was submitted on behalf of the petitioner plaintiff that as the suit was a composite suit for infringement and passing off the suit could proceed. However the learned Trial Court relied upon the judgment of this court in Data Infosys Ltd. & Ors v. Infosys Technologies Ltd. 2016PTC 209[FB] and Micolube India Ltd. v. Maggon Auto Centre & Anr. 2010PTC 462and stayed the suit under Section 124 of the Trade Marks Act. It adjourned the case sine die. 8. This order was challenged as noticed hereinabove by the petitioner which petition CM737 2017 was disposed of by this court on 6th December 2017. The following order was passed: “1. After some hearing the counsel for the petitioner submitted that he may be allowed to withdraw the CM428 2021 present petition and the applications filed therewith as according to him there is an error apparent on the face of the impugned order wherein the fact that the suit seeks not only the relief of permanent injunction to restrain the opposite party against infringement of trade mark but also reliefs in the nature of passing off delivery etc. which are not covered by the provision contained in Section 124(1) of Trade Marks Act 1999 which has been invoked was overlooked. The petitioner seeks liberty to approach the Tribunal by review petition. 2. The petition and the applications are disposed of as withdrawn with liberty as prayed granted.” 9. It is apparent from this order that this court had noted the submissions to the effect that the suit was also one for passing off delivery etc. which was not covered under Section 124(1) of the Trade Marks Act and which fact had been overlooked in the orders of the learned Trial Court. It was in the light of these submissions that when the petitioner sought liberty to approach the Trial Court with a Review Petition the prayer was allowed. It does appear that the question of limitation had not been agitated before this court during those proceedings. The learned Trial Court appears to have fallen into error in rejecting the application under Section 5 of the Limitation Act by observing that it was taking a ‘holistic reading’ of the order dated 6th December 2017. In our view a ‘holistic reading’ would have pointed out to the learned Trial Court that permission to file a review petition had been granted in the backdrop of the submission that while a suit for infringement could be stayed under Section 124 of the Trade Marks Act CM428 2021 the suit for passing off could continue. 10. This court was dealing with a similar issue in J. K. Oil Industrieswhere it referred to several decisions including those that have been relied upon by the learned Trial Court in its order dated 6th March 2017 to stay the suit namely Data Infosys Ltd.and Micolube India Ltd.as also the judgments of the Division Bench of this court in Puma Stationer P. Ltd. v. Hindustan Pencils Ltd. 2010PTC 479and Formica International Ltd. v. CaprihansPvt. Ltd. AIR 1966 Cal 247 to hold that a suit for passing off can continue even when the suit for infringement of trade mark was liable to be stayed under Section 124 of the Trade Marks Act. 11. The settled law is thus that Section 124 of the Trade Marks Act does not provide for stay of action against passing off and is applicable only where a rectification application cancellation has been sought against the registered trade mark that a plaintiff claims to be exclusively its own. This is intended to avoid conflicting decisions by the Civil Courts and the Tribunal. There is no such occasion arising in a suit for passing off. It is only when clever drafting discloses the intent of the plaintiff to get over the statutory bar being aware of the rectification proceedings commenced against the trade mark that it claims is exclusively its own as observed in Formica International Ltd.that the entire suit would have to be stayed till the rectification proceedings are completed. No such plea has been taken in the present case. In fact such a plea cannot be taken as it is after the institution of the suit that the defendants respondents have filed an application for rectification. CM428 2021 12. It is therefore more than apparent that learned Trial Court has misread the judgments of this court in Micolube India Ltd.and Data Infosys Ltd.and there is an error apparent on the face of the impugned order. The learned Trial Court ought not to have directed that the entire suit be stayed though this court including in J. K. Oil Industrieshas consistently held that while the suit for infringement of trade mark has to be stayed under Section 124 of the Trade Marks Act when a rectification petition is filed before the IPRB an action for passing off could continue. 13. The petition is accordingly allowed. The order dated 6th March 2017 passed by the learned Trial Court is modified to read that the Civil Suit No.577 2016shall remain stayed under Section 124 of the Trade Marks Act qua the action for infringement of trade mark but shall continue qua the relief sought against passing off and connected reliefs. The pending application also stands disposed of. 14. The judgment be uploaded on the website forthwith. A copy of this judgment be sent electronically to the learned Trial Court. JUDGE AUGUST 06 2021 s ms

When the award has not been challenged at any point of time, determination of compensation afresh, in the considered opinion of this Court, does not arise: High Court of Chhattisgarh

In the exercise of the right over any land, the rights of any person are infringed by the occupation or disturbance of the surface of such land, the Government or its assignee shall pay to such person compensation for such infringement as upheld by the High Court of Chhattisgarh through the learned bench led by Justice Sanjay K. Agrawal in the case of Nokhram, Ramayan Sahu and Ors. v. State of Chhattisgarh and Ors. (Writ Appeal No.72 of 2021) The brief facts of the case are that 19 persons including the present petitioners had filed a writ petition being with the grievance that their lands had been acquired by the respondent No.2 for the purpose of leasing out to the respondent No.4 without any payment of compensation and without any rehabilitation programme. By an order dated 20.02.2003, this Court disposed of the aforesaid writ petition providing that the petitioners may file a representation to the Collector along with the copy of the writ petition and copy of the order passed and in the event of filing of any such representation, the Collector would pass appropriate orders after hearing the petitioners. It was also provided that if aggrieved by any of the orders passed, the petitioners would be entitled to pursue remedies as may be available in law. The writ petitioners had also filed a writ petition, praying from restraining the respondents from interfering with the lands of the petitioners. On representation being made by the petitioners, the same came to be disposed of on 19.09.2003 as infructuous. Subsequent thereto, this writ petition, out of which the instant appeal arises, came to be filed with prayers to issue a writ of mandamus directing the respondent No.4 to provide employment to the petitioners and also to pay compensation to them at the current rate of land of the area. After considering the submissions of learned counsel for the parties and perusal of the materials on record, the Hon’ble Court held, “The award dated 20.06.2000 recites that the opposite parties therein are Tiharu and 46 others. The present writ petition was filed by only 7 writ petitioners, out of whom, one has chosen not to prefer any appeal. In the aforesaid backdrop of factual events, when the award has not been challenged at any point of time, determination of compensation afresh, in the considered opinion of this Court, does not arise. 21. In view of the above discussion, we are of the considered opinion that no interference is called for with regard to the order passed by the learned Single Judge. However, before parting of the records, we observe that if the 9 amounts deposited are fetching any interest, compensation amount shall be paid along with such accrued interest. With the aforesaid modification of the order of the learned Single Judge, writ appeal stands dismissed.”

1 AFRHIGH COURT OF CHHATTISGARH BILASPUR Writ Appeal No.7211.NokhramThrough Legal Heirs 1.1 Through Legal Hrs. 3.1 Through Legal Heirs 4.1 Through Legal Heirs 6.1 No.31507 partlyallowing the writ petition as indicated in paragraphs 10 and 11 of the impugnedorder.4.The order impugned in the instant appeal is an order in the secondround of litigation.5.19 persons including the present petitioners had filed a writ petitionbeing Writ Petition No.4703 with the grievance that their lands had beenacquired by the respondent No.2 for the purpose of leasing out to therespondent No.4 without any payment of compensation and without anyrehabilitation programme.6.By an order dated 20.02.2003 this Court disposed of the aforesaidwrit petition providing that the petitioners may file a representation to theCollector along with the copy of the writ petition and copy of the order passedand in the event of filing of any such representation the Collector would passappropriate orders after hearing the petitioners. It was also provided that ifaggrieved by any of the orders passed the petitioners would be entitled topursue remedies as may be available in law. 7.The writ petitioners had also filed a writ petition registered as WritPetition No.37003 praying from restraining the respondents frominterfering with the lands of the petitioners. On representation being made bythe petitioners the same came to be disposed of on 19.09.2003 as infructuous. 48.Subsequent thereto this writ petition out of which the instantappeal arises came to be filed with prayers to issue a writ of mandamusdirecting the respondent No.4 to provide employment to the petitioners and alsoto pay compensation to them at the current rate of land of the area.9.During the course of the proceedings the petitioners No. 1 3 4and 6 had expired and they are substituted by their legal representatives.Petitioner No.1 was a resident of village Kutighat and petitioners No.2 to 7 ofvillage Aarasmeta and the extent of lands owned by them are mentioned inparagraph 5.6 of the writ petition.10.Respondent No.4 to which reference is already made is acompany registered under the Companies Act 1956 and is engaged in themanufacturing of Cement and the said company was earlier known asRaymond Cement Works Company.11.The learned Single Judge in paragraphs 7 to 11 had observed asfollows :“7. The aforesaid affidavit filed by the State hasnot been disputed by the petitioners for longperiod of 7 years till date though the petitionerschose to move application seeking substitution oflegal representatives of some of the petitioners who died during the pendency of the writ petition.Therefore the factual position as stated in theaffidavit of the State has to be accepted.8. That would mean that as far as petitionersexcept petitioners No.1 & 6 are concerned theirgrievance with regard to employment has alreadybeen redressed. 59. Specific averments that though appointmentletter was issued in favour of Manoj Kumar S oNokhram Petitioner No.1 he did not join has notbeen disputed before this Court. Appointmentletterbears acknowledgement. Allthese facts have not been disputed by filing anyreply or affidavit by the petitioners particularly legal representative of petitioner No.1 Nokhramnot even Manoj Kumar. Therefore this factualdispute cannot be further gone into writ petition. Itwill be open for Manoj Kumar to take separateremedy if he has a case based on any enableclaim.10. As far as offer of employment to brother ofpetitioner No.6 is concerned even according tothe respondent appointment letter could not beserved because he was out of station. The legalrepresentative of petitioner No.6 would be atliberty to approach the competent authorityraising claim of appointment and in that event the competent authority i.e. Collector of theJurisdiction of the District shall cause an enquiryto be made in this regard and if it is found thatappointment letter was not served on Pusauram brother of petitioner No.6 necessary stepstowards offer of employment to the personnominated by respondent No.4 shall be taken. 611. As far as claim of compensation isconcerned averments made in paragraph 5 particularly with reference to list Annexure A 5 itis clearly revealed that none of the petitionersaccepted the compensation and theircompensation was thereafter deposited withTahsildar Akaltara District Janjgir Champa. If thecompensation so far has not been lifted by allother petitioners or legal representative ofdeceased petitioners it will be open for them toapproach the Sub Divisional Officer Janjgir Champa and Tahsildar Akaltara District Janjgir Champa for release of compensation amountlying in their account forthwith.”12.Mr. H. B. Agrawal learned senior counsel for the appellants hassubmitted that the compensation computed is not in accordance with law andtherefore the writ petitioners did not accept the compensation amount which islying with the Government and the learned Single Judge having not adverted tothe prayer made for payment of compensation on the basis of prevailing marketrate the impugned order is not sustainable in law.13.So far as employment to be offered to the petitioners is concerned the learned senior counsel submits that there is no surviving cause of actionwith regard to the same as employment has since been offered and therefore this Court may confine its consideration only with regard to prayer for paymentof compensation at the prevailing market rate. It is in this context he hassubmitted that since the compensation has not been accepted by majority of theland owners the Right to Fair Compensation and Transparency in Land 7Acquisition Rehabilitation and Resettlement Act 2013 will come into play andcompensation is to be determined on the basis thereof.14.Refuting the submissions made by learned senior counsel Mr.Vikram Sharma learned Deputy Advocate General appearing for theState respondents No.1 to 3 submits that Writ Petition No.4703 was filedwithout disclosing the fact that the award had come to be passed beforeinstitution of the writ petition and it is only on the basis of the submissionsadvanced by the learned counsel for the petitioners in the aforesaid writ petitionthat this Court had directed the Collector to examine the issue and to passappropriate orders after hearing the petitioners. He has pointed out that theCollector in his elaborate order dated 19.09.2003 had indicated that as anaward was passed he is not competent to record any opinion on the issueraised by the petitioners. It is also pointed out by him that order of the Collectoris not under assailment in the writ petition and so also the original award passedby the Sub Divisional Officer Janjgir under Section 247 of the ChhattisgarhLand Revenue Code 1959on 20.06.2000. Accordingly he submits that in the attending facts and circumstances of the case the orderof the learned Single Judge does not warrant any interference and the writappeal is liable to be dismissed.15.We have considered the submissions of learned counsel for theparties and have perused the materials on record.16.That the lands of the petitioners had been acquired under theprovisions of the Code 1959 is not in dispute. What is also not in dispute is thatan award was passed on 20.06.2000 by the Sub Divisional Officer Janjgir. Thecopy of the award was annexed as part of the affidavit filed by the respondentsNo.1 to 3 in the writ petition on 07.08.2013. The amount of compensation 8payable in respect of the petitioners is also indicated in the Annexure of theaward. Though copy of the affidavit was served upon the learned counsel forthe writ petitioner no response was filed with regard to the aforesaid affidavit.17.Section 247(1) of the Code 1959 provides that unless it isotherwise expressly provided by the terms of a grant made by the Government the right to all minerals mines and quarters shall vest in the State Governmentwhich shall have all powers necessary for the proper enjoyment of such rights.Section 247(4) of the Code 1959 provides that if in the exercise of the rightover any land the rights of any person are infringed by the occupation ordisturbance of the surface of such land the Government or its assignee shallpay to such persons compensation for such infringement and the amount ofsuch compensation shall be calculated by the Sub Divisional Officer or if hisaward is not accepted by the Civil Court as nearly as may be in accordancewith the provisions of the Land Acquisition Act 1894.18.Though Mr. Agrawal has submitted that the petitioners had notaccepted the award none had taken recourse to pursue their remedies beforethe Civil Court.19.The award dated 20.06.2000 recites that the opposite partiestherein are Tiharu and 46 others. The present writ petition was filed by only 7writ petitioners out of whom one has chosen not to prefer any appeal.20.In the aforesaid backdrop of factual events when the award hasnot been challenged at any point of time determination of compensation afresh in the considered opinion of this Court does not arise.21.In view of the above discussion we are of the considered opinionthat no interference is called for with regard to the order passed by the learnedSingle Judge. However before parting of the records we observe that if the 9amount deposited is fetching any interest compensation amount shall be paidalongwith such accrued interest.22.With the aforesaid modification of the order of the learned SingleJudge writ appeal stands dismissed. No costs. Sd Sd (Sanjay K. Agrawal) Chief Justice Judge Anu

Non-compliance of any procedural requirement is no ground for automatic rejection: Sikkim High Court

“The State respondents could not have demanded the refund of the excess payment made on account of their illegal promotions”, this remarkable stand was forwarded by Hon’ble Sikkim High Court, in a single judge bench chaired by Hon’ble Justice Mr Bhaskar Raj Pradhan, in the writ appeal case of Ganesh Bhandari & ors. V. State of Sikkim & ors, [WP(C) No. 24 of 2017]. The petitioners were appointed as Graduate Teachers on 04.03.2003 and 01.03.2003 on coterminus basis under HRDD. It is the petitioners’ case that pursuant to an advertisement dated 04.06.2014, published in Sikkim Express on 08.06.2014, they applied for the posts of Post Graduate Teachers through direct recruitment. It is their case that they fulfilled all the criteria required by the advertisement and thus, they applied in the “prescribed application forms” for the said posts. After they received their promotion orders, the petitioners joined their service on 20.05.2015 and they have worked there continuously. However, on 04.07.2017, the impugned office orders issued by the respondent no. 3, were received by them cancelling their promotions with retrospective effect and repatriating them to their respective old posts as Graduate Teachers. They were also directed to refund the excess payment made on account of their promotion. The writ petition alleging violation of petitioners’ fundamental rights guaranteed under Article 14, 16, 19 and 21 as well as Article 300A of the Constitution of India, has been preferred by the two petitioners who have been issued office orders no. 278/HRDD/ADM and 279/HRDD/ADM by which the Human Resource Development Department, had cancelled their promotion orders both dated 14.05.2015 with retrospective effect. By the impugned office orders, they were also repatriated to their respective schools as Graduate Teachers and directed to refund any excess payment made on account of their promotion. Pursuant thereto, the petitioners were issued show cause notice, directing them to show because why their coterminous service should not be terminated and why inquiry should not be initiated against them for concealing the facts. After examining all the submissions, arguments and evidences forwarded by the councils, the Hon’ble SC observed that, “Besides the error of judgment of the petitioners, it is also apparent that both the Commission as well as the State respondents have been grossly irresponsible and wanting. It is an admitted fact that the petitioners have rendered their service during the period they served in the promotional posts of Post Graduate Teacher (Hindi) in their respective schools. Had it been a clear case of concealment of facts committed by the petitioners, which although alleged by the State respondents have not been proved, the issue would have been different. The allegation of concealment of facts would in any way not hold much water as the State respondents have thought it fit to regularize the petitioners’ co-terminus service inspite of issuance of the impugned show cause notice.”

THE HIGH COURT OF SIKKIM: GANGTOK Civil Extra Ordinary Jurisdiction) S.B: THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN JUDGE ….. Petitioners WP(C) No. 217 Shri Ganesh Bhandari Son of Shri Punya Prasad Bhandari Resident of Tareythang East Sikkim. Smt. Amrita Sharma Wife of Atmaram Sharma Resident of Pacheykhani P.O. Pakyong East Sikkim. State of Sikkim Represented by and through The Chief Secretary Government of Sikkim P.O. Gangtok East Sikkim. 4. The Secretary The Principal Secretary Human Resource Development Department Government of Sikkim P.O. Gangtok East Sikkim. 3. The Joint Secretary Human Resource Development Department Government of Sikkim P.O. Gangtok East Sikkim. State Public Service Commission Government of Sikkim P.O. Gangtok East Sikkim. 2 WP(C) No. 217 Shri Ganesh Bhandari & Another vs. State of Sikkim & Others 5. The Secretary Department of Personnel Administrative Reforms & Training Government of Sikkim P.O. Gangtok East Sikkim. ….. Respondents Application under Article 226 of the Constitution of India. Mr. A. Moulik Sr. Advocate with Mr. Ranjit Prasad Advocate for the Appellant. Dr. Doma T. Bhutia Additional Advocate General Mr. S.K. Chettri Government Advocate for the Respondents no. 1 2 3 and 5 and Mr. Zigmee Bhutia Standing Counsel for Education Department. Mr. Bhusan Nepal Advocate for Respondent No.4. Date of hearing : 9.11.2020 19.11.2020 and 23.11.2020 Date of judgment: 14.12.2020 JUDGMENT Bhaskar Raj Pradhan J. The writ petition alleging violation of petitioners’ fundamental rights guaranteed under Article 14 16 19 and 21 as well as Article 300A of the Constitution of India has been preferred by the two petitioners who have been issued office orders no. 278 HRDD ADM and 279 HRDD ADM by which the Human Resource Development Department had cancelled their promotion orders no. 3 WP(C) No. 217 Shri Ganesh Bhandari & Another vs. State of Sikkim & Others 06 DIR HRDD(SE) PGT and 07 DIR HRDD(SE) PGT both dated 14.05.2015with retrospective effect. By the impugned office orders they were also repatriated to their respective schools as Graduate Teachers and directed to refund any excess payment made on account of their promotion. Pursuant thereto the petitioners were issued show cause notice no. 277 ADM HRDD dated 04.07.2016 by the HRDD directing them to show cause why their co terminus service should not be terminated and why inquiry should not be initiated against them for concealing the facts. 2. Heard Mr. A. Moulik learned Senior Advocate for the petitioners Dr. Doma T. Bhutia Additional Advocate General for respondents no. 1 2 3 and 5 State respondents) and Mr. Bhusan Nepal learned Counsel for respondent no. 4 i.e. the State Public Service CommissionNo. 217 Shri Ganesh Bhandari & Another vs. State of Sikkim & Others He relied upon Udai Shankar Triyar vs. Ram Kalewar Prasad Singh Another1 to submit that non compliance with any procedural requirement should not entail automatic dismissal or rejection. These defects and irregularity according to Mr. Moulik were procedural and should not therefore be allowed to defeat their substantive rights or to cause injustice. He submitted that the Commission which is a public authority entrusted with public functions was required to act fairly reasonably uniformly and consistently in public good and in public interest. He relied upon Central Board of Secondary Education & Another vs. Aditya Bandopadhyay & Others2 for the said proposition. It was his case that the State respondents had failed to follow the principles of natural justice before issuance of the impugned office orders cancelling their appointment as Post Graduate Teachers with retrospective effect. He relied upon S.L. Kapoor vs. Jagmohan & Others3 to explain the concept of natural justice in administrative law. Mr. Moulik also submitted that the records would reveal that both the Commission as well as the State respondents had grossly failed in as much as they had issued forms without any clear indication for what purpose it was misleading the petitioners to fill the wrong forms and therefore they could not take advantage of their own wrong. 11 SCC 75 28 SCC 497 34 SCC 379 5 WP(C) No. 217 Shri Ganesh Bhandari & Another vs. State of Sikkim & Others The learned Additional Advocate General per contra contended that the writ petition was not maintainable as no fundamental or statutory right of the petitioners had been violated. She relied upon Union of India & Another vs. Arulmozhi Iniarasu & Others4 and submitted that a writ of mandamus can be issued by this court only when there exists a legal right in the writ petitioner and corresponding legal obligation on the state. Only because an illegality has been committed the same cannot be directed to be perpetuated. It is trite law that there cannot be equality in illegality. It was her submission that the petitioners have not approached this court with clean hands and therefore the writ petition should be dismissed. For the said purpose she relied on a judgment of this Court in The Principal Secretary Department of Commerce and Industry vs. Ms. Mobile Automobile Pvt. Ltd.5. The learned Additional Advocate General also submitted that when the petitioners were not eligible to be promoted and they were given promotion it was their duty to inform the Government that they were wrongly promoted. She submitted that there was deliberate suppression of facts on the part of the petitioners and therefore they could not claim a right to continue in service. She relied upon Jainendra Singh vs. State of Uttar Pradesh6. 47 SCC 397 52018 Sikkim 1005 68 SCC 748 6 WP(C) No. 217 Shri Ganesh Bhandari & Another vs. State of Sikkim & Others The petitioners were appointed as Graduate Teachers Sanskrit language) on 04.03.2003 and 01.03.2003 on co terminus basis under HRDD. They were posted at Government Senior Secondary Schools Singtam and Linkey both East Sikkim respectively during the year 2014 15. is the petitioners’ case that pursuant to an advertisement dated 04.06.2014 published in Sikkim Express on 08.06.2014 they applied for the posts of Post Graduate Teachers through direct recruitment. It is their case that they fulfilled all the criteria required by the advertisement and thus they applied in the “prescribed application forms” for the said posts. Along with the in service candidates they also annexed their appointment orders appointing them on co terminus basis as Graduate Teachers in Sanskrit along with the no objection from their employer and other documents as required. The petitioners submit that the authorities scrutinised their application forms and having found them eligible they were invited to appear for the written examination and thereafter for viva voce on 13.04.2015. They were successful in the written examination as well as viva voce. Both the petitioners were issued “promotion orders” and posted as Post Graduate Teachers Hindi) in Lingee Senior Secondary School and Tikalall Niraula Senior Secondary School respectively. The petitioners have also annexed their promotion orders. After they received their promotion orders the petitioners joined their service on 7 WP(C) No. 217 Shri Ganesh Bhandari & Another vs. State of Sikkim & Others 20.05.2015 and they have worked there continuously. However on 04.07.2017 the impugned office orders issued by the respondent no. 3 were received by them cancelling their promotions with retrospective effect and repatriating them to their respective old posts as Graduate Teachers. They were also directed to refund the excess payment made on account of their promotion. It is their case that the petitioners were paid for the services they have rendered as Post Graduate Teachers. The petitioners were also issued impugned show cause notice directing the petitioners to show cause as to why their co terminus service should not be terminated and inquiry not be initiated against them for concealing facts about their qualifying service and for submitting the in service application forms when they were required to fill the forms for direct recruitment. The petitioners responded to the show cause notice by submitting their replies dated 18.09.2016 and 27.09.2016. The petitioners plead that they were not aware of any other advertisement apart the advertisement no. 09 SPSC dated 04.06.2014 in Sikkim Express for direct appointment advertisement for direct recruitment) by the Commission. They further plead that they were not aware of the two separate forms for promotion and direct recruitment. As advertisement for direct recruitment did not have any restrictions for application by in service teachers like the petitioners holding co terminus post they applied for direct recruitment to the posts 8 WP(C) No. 217 Shri Ganesh Bhandari & Another vs. State of Sikkim & Others of Post Graduate Teachers. The petitioners also aver that a combined written test for Post Graduate Teachers for both direct recruitment as well as promotion was held and a combined result published on 18.03.2015 in which both of them featured as successful candidates. The petitioners aggrieved by the impugned office orders and impugned show cause notice sent a legal notice to the State respondents. However the State respondents in their reply dated 06.02.2017 declined to entertain their grievances. It is in these circumstances that the petitioners have approached this court praying for the following: “(i) A writ or order or direction or declaration that: a) the common show cause notice issued to petitioner nos. 1 and 2 bearing no. annenure P6) and b) Office Order nos. 278 HRDD Adm and 279 HRDD Adm both dated 4.7.16 Annexures P4 and P5) are set aside quashed and cancelled. ii) A writ or order or direction or declaration that the petitioners are regular Government servants as PGT they are entitled to all benefits of employment including seniority in their respective posts. iii) A writ or order or direction or declaration that the promotion orders of the petitioners as PGT be treated as their appointment orders in the regular establishment either by conversion or otherwise as will be found fit. iv) Costs of the proceedings v) Any other Writ or Order or direction or declaration as this Hon’ble Court may deem fit and proper in the facts and circumstances of the present case.” In so far prayers are concerned the learned Additional Advocate General submitted that the petitioners have now been appointed as Graduate Teachers on a regular basis 9 WP(C) No. 217 Shri Ganesh Bhandari & Another vs. State of Sikkim & Others vide office order no. 646 ADM HRDD dated 24.07.2019 and as such the prayers are infructuous. Mr. A. Moulik submits that in fact the petitioners have been so appointed. A copy of the office order dated 24.7.2019 has been filed by the respondent no. 2 in its affidavit dated 24.11.2020 with the leave of this court. It reveals that by the office order dated 24.07.2019 the word “co terminus” appearing in the initial appointment order in respect of both the petitioners have been removed and they have been treated as appointed on regular basis. In the circumstances the impugned show cause notice seeking to terminate their co terminus appointment would be infructuous and consequently there would be no need for a direction that the show cause notice bearing no. 277 ADM HRDD dated 04.07.2016 be set aside. The State respondents have filed a counter affidavit dated 19.08.2017. According to the State respondents the Human Resource and Development Department forwarded two requisitions bearing no. 567 DIR HRDD(SE) dated 28.02.2014 and 568 DIR HRDD(SE) dated 28.02.2014 to the Commission. It is the case of the State respondents that the petitioners pursuant to the advertisement for direct recruitment applied against the 5 posts of Post Graduate Teachersto be filled up by in service candidates. It is the specific case of the State respondents that the Commission forwarded a merit list of selected candidates after completing the selection process vide 10 WP(C) No. 217 Shri Ganesh Bhandari & Another vs. State of Sikkim & Others letter dated 298 SPSC 2015 dated 20.04.2015 recommending the selected candidates. The petitioners were selected for the posts of Post Graduate Teacher through in service quota and accordingly appointment orders dated 14.05.2015 were issued to the petitioners. Subsequently when it was revealed that the petitioners had worked only on co terminus basis and therefore not eligible to apply under promotion in service candidates’ quota their appointments were cancelled vide order dated 04.07.2016. The Commission has filed their counter affidavit. According to them the Commission received a requisition dated 28.02.2014 from the respondent no.3 HRDD for filling 127 posts of Post Graduate Teachers including 16 posts of Post Graduate Teachers for Hindi on direct recruitment basis. The Commission also received another requisition on the same date from the HRDD for filling 35 posts of Post Graduate Teachers in different subjects including 5 posts for Post Graduate Teacher Hindi) for promotion in service candidates. Pursuant to the first requisition advertisement for direct recruitment was published by the Commission inviting applications from eligible candidates. On 10.06.2014 the Commission issued employment notice no. 51 SPSC 2014 dated 10.06.2014 inviting applications from eligible in service candidates for filling up 35 posts of Post Graduate Teachers in 11 WP(C) No. 217 Shri Ganesh Bhandari & Another vs. State of Sikkim & Others different subjects including Hindi by way of promotion. The commission decided to conduct a combined examination for both direct recruitment as well as promotion on 13.11.2014. It is the case of the Commission that pursuant to the advertisement for in service candidates the petitioners applied against the 5 posts of Post Graduate Teacher to be filled by in service candidates. The written examination for both direct recruitment and promotion was conducted on 13.11.2014 in which 154 candidates were shortlisted for classroom demonstration and viva voce test which was held on 11th 13th and 15th of April 2015 after which the Commission finalised the merit list. On 20.04.2015 a list of selected candidates for direct recruitment as well as for promotion were recommended by the Commission for appointment to the posts of Post Graduate Teachers. It is the specific stand of the Commission that the petitioners were recommended for appointment under the in service category as both had applied as in service candidates. On 28.02.2014 the HRDD wrote to the Commission forwarding filled in proforma statement for filling up the posts of Post Graduate Teachers subject wise) through direct recruitment. Sixteen posts were available for Post Graduate Teachers as against the total of 127 posts. The relevant notification no. 02 GEN ADM HRDD dated 07.01.2011 for manpower Management Guidelines of Post Graduate Teachers 12 WP(C) No. 217 Shri Ganesh Bhandari & Another vs. State of Sikkim & Others Guidelines notification) was also enclosed. The Commission has not furnished a copy of the proforma with regard to direct 10. On the same date i.e. 28 02 2014 the HRDD wrote to the Commission forwarding filled in proforma statement for filling up the posts of Post Graduate Teachers through promotion. Five posts were available for Post Graduate Teacher as against the total of 35 posts. The Guidelines notification was also enclosed. The proforma for promotion required twelve information to be filled. The proforma forwarded by the HRDD to the Commission is as under: 1 Name of Post and Department 2 No. of posts to be filled up Pay band and Pay Grade Post Graduate Teacher PB(2) 9300 34800+5000 GP the Department with Total number of Posts of this grade nomenclature if any List of officers already holding posts in this grade including those on Adhoc basis in order of seniority duly indicating mode of recruitment to this grade. 6 Complete uptodate seniority list of persons in lower grade with full service particulars 7 Uptodate confidential reports for the number of years as per rules of all the persons who are to be considered for promotion. 8 Whether certificates in respect of all persons to be considered for promotion are enclosed. 9 Whether Annual Property Return in to be respect of all persons Enclosed with Notification no 02 Gen Adm HRDD Dated 07 01 2011 13 WP(C) No. 217 Shri Ganesh Bhandari & Another vs. State of Sikkim & Others Dated 21.03.2011 No 10 Whether Departmental Clearance certificates of all eligible persons are enclosed. 11 Number of date of Notification along with copy thereof under which the relevant promotion rules including up to date amendments are published 12 Total number of enclosures. 1. List of Officers mentioned at Sl. No.5 2. Seniority list vide SL. No 6 3. ACRs 4. Vigilance Cleartence5. Departmental Clearence6. Annual property return 7. Others8. Grant total 11. It would be relevant to note that details to be filled in the proforma especially in serial no. 6 to 12 would have given the Commission the relevant information of those candidates who were eligible to be considered for promotion. According to the proforma complete uptodate seniority list of persons in lower grade with full service particulars were enclosed by the HRDD and forwarded to the Commission. 12. The advertisement for direct recruitment required the following eligibility criteria: “3.ELIGIBILITY CRITERIA Minimum i) Master’s Degree in respective subject with for reserved category ii) Master Degree without B.Ed. with 50% and above for General Category and 45% and above respective subject can also apply. On selection they shall be given conditional appointment and they should acquire the B.Ed. qualification within 3years failing which their service is liable to be 14 WP(C) No. 217 Shri Ganesh Bhandari & Another vs. State of Sikkim & Others iii) Should have attained the age of 18 years but should not have exceeded the age of 30 years. In the case of Government servant not more than 40 years. v) 45years for presently working temporary including those working on adhoc contract Co terminus) under Department Govt. of Sikkim Substituted 617 DIR HRDD SE dated 05.04.2014. 13. The advertisement for promotional candidates invited applications from “In service Primary Teachers and Graduate Teachers working in the Government School having eligible criteria for filling up for following posts of Graduate Teachers and Post Graduate Teachers”. A master’s degree in respective subjects with B.Ed. and eight years of regular service as Graduate Teacher was the eligibility criteria for the posts of Post Graduate Teacher Hindi). The candidates were required to go through a written examination and after qualifying to appear for classroom demonstration personality test. Application form was required to be downloaded from the official website of the Commission. 14. On 08.07.2014 and 28.07.2014 the petitioners no. 1 and 2 respectively filled the application forms for in service applicants. This was the form required to be filled by promotional candidates pursuant to advertisement for promotional candidates. In serial no.13 of the form the petitioners gave their designation as Graduate Teacher No. 217 Shri Ganesh Bhandari & Another vs. State of Sikkim & Others not mention that they were appointed on co terminus basis. The petitioners have stated that they had enclosed a copy of their co terminus appointment letters along with the forms. There is no specific denial about this fact in the courter affidavits filed by the Commission as well as the State respondents. 15. According to the Commission the petitioners also submitted no objection certificates dated 30.06.2014 and 18.07.2014 along with the application forms. The no objection certificates certified that the HRDD had no objection for the petitioners appearing in the interview for the posts of Post Graduate Teachers being conducted by the Commission. 16. The written examination was conducted on 13.11.2014. On 18.03.2015 a notice for viva voce and classroom demonstration was issued based on the evaluation of marks obtained by the candidates in the written examination. Both the petitioners’ roll numbers were featured in the list. Those candidates selected in the written examination were to be called for viva voce and classroom demonstration on a date to be announced later. They were asked to come with original certificates of all relevant documents listed there. The viva voce and classroom demonstration took place on 11th 13th and 15th of April 2015. On 18.04.2015 the Commission issued a notice declaring ninety six candidates qualified on the basis of the 16 WP(C) No. 217 Shri Ganesh Bhandari & Another vs. State of Sikkim & Others written examination classroom demonstration and viva voce. The petitioners were also selected. 17. On 20.04.2015 the Secretary of the Commission wrote to the respondent no. 2 stating that pursuant to their letters both dated 28.02.2014 for direct recruitment and promotion the Commission advertised the posts in the local newspapers dailies as well as in the Commission’s website. After receiving applications the Commission issued admit cards to 1738 candidates and conducted the written examination on 13.11.2014 and out of which 154 candidates were shortlisted for classroom demonstration and viva voce. The classroom demonstration and viva voce interview were conducted on 11th 13th and 15th April 2015. On the basis of the marks obtained in the written examination and classroom demonstration viva voice test 96 candidates were provisionally recommended appointment. Petitioner no.2 featured in serial no. 53 and petitioner no. 1 featured in serial no. 56 in order of merit in the said list. They were both recommended for promotion. The letter also stated that the applications and other documents of the selected candidates were being forwarded and that the list was provisional subject to police verification report medical fitness and verification of all required documents by the State government. It was also notified that all the original certificates 17 WP(C) No. 217 Shri Ganesh Bhandari & Another vs. State of Sikkim & Others and documents as well as original admit cards were to be checked before issuing formal office order by the HRDD. 18. It seems that both the petitioners satisfied that they fulfilled the eligibility criteria demanded in advertisement for direct recruitment for the posts of Post Graduate Teachers filled the forms titled “Application Form for In service” meant for promotional candidates. The form which the petitioners were required to fill was however the form titled “Application Form” meant for direct recruitment. There is no explanation from the Commission why they could not title them in any other manner to give a clear indication to the applicants that one form was for direct recruitment and the other for promotional candidates. Although as per the learned counsel for the Commission there was a difference in the two forms in as much as it was only in the form titled “Application Form” that local Employment Card Number was sought which would reflect that it was meant for direct recruitment. It is the petitioners’ case that as they were in service in co terminus basis they presumed that they were required to fill the form titled “Application Form for In service” filled the details therein and submitted to the Commission. Even in the forms filled by the petitioners they did not disclose that they were appointed on co terminus basis in item no. 13 which sought information about their present designation. On scrutiny of their application forms it is apparent that the Commission 18 WP(C) No. 217 Shri Ganesh Bhandari & Another vs. State of Sikkim & Others for written demonstration viva voce. If the Commission had gone through the information provided by the State respondents through the proforma giving an updated seniority list of persons in the lower grade with full service record it is apparent that the petitioners would have not even have been invited to sit for the written examination. Apparently the Commission completely ignored the information given by the State respondents. Again there is no explanation as to why the Commission thought it fit to hold a combined examination for direct recruitment as well as promotion. There is also no explanation as to why the Commission thought it fit to publish the result of the written examination of both direct recruits as well as promotional candidates together. However the notice dated 18.03.2015 publishing the list of candidates selected for viva voce and classroom demonstration did point out that this was for “both direct & In service promotional candidates”. Further a list of thirteen documents was sought from the candidates to be brought with them in the original. Items “i” and “j” in the said list were as follows: “i. Minimum eight years of service experience certificate as regular graduate teacher and In service candidates shall invariably bring existing substantive post’s office order. j. Work experience certificate No. 217 Shri Ganesh Bhandari & Another vs. State of Sikkim & Others 19. Admittedly the petitioners did not have eight years of service experience as regular Graduate Teachers and therefore they being considered as being in service candidates for the promotional posts did not arise at all. Obviously the petitioners had not furnished such certificates. 20. However it transpires that both the petitioners were called for sat for the viva voce and were also selected by the Commission. The Commission thereafter published a notice dated 18.04.2015 declaring ninety six candidates qualified on the basis of written examination classroom demonstration and viva voce once again for both direct and promotional candidates. The petitioner no.1 featured in serial no. 56 and the petitioner no.2 in serial no. 53. In the notice dated 18.04.2015 both the petitioners were shown as promoted and not as directly recruited. The petitioners’ appointment orders dated 14.05.2015 also clearly records that they were promoted to the posts of Post Graduate Teachers No. 217 Shri Ganesh Bhandari & Another vs. State of Sikkim & Others Teachers through direct recruitment. Thus when the petitioners read the notice dated 18.04.2015 showing them as qualified for promotion they ought to have been alarmed. However the facts reveal that both the petitioners accepted the promotional orders without any demur or protest. They enjoyed the promotional posts the salaries and perks till the State respondents realised that they had been promoted without even being qualified. The advertisement for the promotional posts required eight years of regular service as Graduate Teacher as eligibility condition which they apparently and admittedly did not possess. 21. The Commission is a commission under Article 315 of the Constitution of India for the purpose of fulfilling the functions as provided in Article 320 of the Constitution of India. It is the duty of the Commission to conduct examinations for appointment to the services of the State. The explanation given by the Commission for such gross failures are wanting. According to the learned counsel of the Commission the petitioners were selected for promotion solely on the basis of the no objection certificates issued by the HRDD dated 30.06.2014 and 18.07.2014 certifying that the department had no objection for the petitioners appearing in the interview for the posts of Post Graduate Teachers. The certificates according to the petitioners were furnished to the authorities along with the forms for in service candidates they had filled and submitted. These 21 WP(C) No. 217 Shri Ganesh Bhandari & Another vs. State of Sikkim & Others certificates said nothing else. The proforma submitted by the State respondents to the Commission for promotion provided them with an updated seniority list of eligible persons that could be considered. Clearly this information was ignored. Failure of the Commission to ignore such relevant information without anything more is grossly and patently irresponsible. Conducting examination for all government posts is a serious affair. It is unfortunate that the conduct of the examination as well as the scrutiny of the petitioners has been lacking in the responsibility demanded of the Commission to its constitutional functions. It was also the duty of the State respondents to have verified the recommendations before issuing the promotion orders. More so when the Commission had itself cautioned the State respondents against doing so. Apparently the State respondents trusted the Commission’s recommendation and gave effect to it by promoting the petitioners who were not even in the zone of consideration. 22. In such circumstances the question is whether the prayers as prayed for in the writ petition could be granted in favour of the petitioners. Admittedly both the petitioners do not have the necessary eligibility criteria of eight years of regular service required for the promotional posts of Post Graduate Teacher No. 217 Shri Ganesh Bhandari & Another vs. State of Sikkim & Others them continuing their service in the promotional posts they held before the issuance of the impugned office orders cancelling their promotion orders does not arise. 23. That takes us to the next question raised by them as to the illegality of the impugned office orders as apparently no show cause or opportunity of hearing were afforded to the petitioners before their issuance. The impugned office orders cancelled the petitioners’ appointment to the promotional posts of Post Graduate Teacher No. 217 Shri Ganesh Bhandari & Another vs. State of Sikkim & Others Teacher for more than a year and two months before the authorities realised their folly and rectified the same by issuing the impugned office orders cancelling their promotional orders. The writ petition was filed on 11.05.2017 almost after ten months after issuance of the impugned office orders dated 04.07.2016. The conduct of the petitioners are also wanting. It was incumbent upon them to have notified the authorities of their having wrongly promoted 24 WP(C) No. 217 Shri Ganesh Bhandari & Another vs. State of Sikkim & Others them although they had not applied for promotion at least on the receipt of the promotional orders dated 14.05.2015. Much water would have flowed under the bridge from the time of the advertisement in the year 2014 till the filing of the writ petition in the year 2017. They have enjoyed more than a year’s salary perks for holding posts they were not even eligible for. This court is of the considered opinion that the petitioners have also disqualified themselves by their own error of judgment to their own detriment. They cannot at this juncture be considered for the direct recruitment posts advertised in the year 2014 as well. However this would not be an impediment to them to be considered for either promotional or direct recruitment avenues in the future. 25. The only question left now is whether the petitioners should be directed to refund the excess payment made on account of their promotion. Besides the error of judgment of the petitioners it is also apparent that both the Commission as well as the State respondents have been grossly irresponsible and wanting. It is an admitted fact that the petitioners have rendered their service during the period they served in the promotional posts of Post Graduate Teacher in their respective schools. Had it been a clear case of concealment of facts committed by the petitioners which although alleged by the State respondents have not been proved the issue would have 25 WP(C) No. 217 Shri Ganesh Bhandari & Another vs. State of Sikkim & Others been different. The allegation of concealment of facts would in any way not hold much water as the State respondents have thought it fit to regularise the petitioners’ co terminus service inspite of issuance of the impugned show cause notice. In the circumstances this court is of the considered view that the State respondents could not have demanded the refund of the excess payment made on account of their illegal promotions. However it is apparent that there has been a loss of financial resources from the State exchequer due to the follies of the Commission and the State respondents. This court is of the opinion that it should be left to their wisdom to realize the amount from their erring officers if found guilty. 26. The writ petition is partly allowed in the above terms and disposed. 27. No order as to costs. Judge Approved for reporting: Yes No : Yes No Internet

Limitation period must be followed strictly by parties to suit: Bombay High Court

Limitation period must be strictly adhered to while filing a suit. Suit filed beyond the allowable limitation period and is clearly barred by the law of limitation. A single judge bench of Justice Milind N Jadhav; while adjudicating the matter in Eknath Nivrutti Hegadkar v. Aagatrao Dyanu Ghodake; [WRIT PETITION NO. 7436 OF 2017], dealt with filing of suits post the limitation period as prescribed by law. Petitioners are the original defendants and respondents are the legal heirs of the original plaintiff. The suit property for which entitlement is claimed by the plaintiffs situated in District Solapur. The original plaintiff i.e., respondent herein filed a civil suit against the defendants for permanent injunction in respect of the suit property. The original plaintiff expired on 16.04.2015. His legal heirs are the present respondents. Respondents i.e., plaintiffs filed application stating that original defendant No. 1 had expired on 27.03.2014 and his legal heirs (present petitioners) were required to be brought on record. Petitioners objected to this application on the ground of maintainability. Respondents -plaintiffs thereafter filed an application for seeking amendment of the suit plaint. This Application was filed on 25.10.2016. The petitioners objected to the proposed amendment application on the ground of maintainability and limitation, inter alia, contending that the proposed amendment if allowed would change the nature of the suit and a completely different relief would be introduced and granted by the Court. On the aspect of limitation, it was contended that the cause of action to seek the relief had arisen in 2008 immediately on filing the written statement and the application was filed after a period of 8 years. The learned counsel appearing for the petitioner stated that the application was filed beyond limitation after a period of almost 2 years and 3 months and therefore not maintainable. He also vehemently stated that the proposed amendment of seeking declaratory title is unconstitutional and would fundamentally change the nature and character of the original suit. The amendment sought for to seek declaratory relief of title could not have been allowed and granted in view of the aforesaid provisions because the original suit was a suit simpliciter seeking injunction.

on 01 06 2021 on 22 03 civil wp 7436 17.docR.M. AMBERKAR(Private Secretary) IN THE HIGH COURT OF JUDICATURE AT BOMBAYCIVIL APPELLATE JURISDICTIONWRIT PETITION NO. 7436 OF 2017Eknath Nivrutti Hegadkar(since deceased through his legal heirs)Mainabai Lakshman Tanjave & Ors...Petitioners VersusAagatrao Dyanu Ghodake(since deceased through his legal heirs)Kondabai Aagatrao Ghodake & Ors...Respondents ...................Mr. Surel S. Shah for the PetitionersMr. Prasad Kulkarni for the Respondents ................... CORAM : MILIND N. JADHAV J. RESERVED ON : MARCH 03 2021. PRONOUNCED ON : JUNE 01 2021.JUDGMENT: Heard Mr. Shah learned counsel appearing for thepetitioners and Mr. Kulkarni learned counsel appearing forthe respondents.2. By the present Writ Petition the petitioners haveprayed for following reliefs: "(B)After calling for the records and proceedings from the Court oflearned Civil Judge Junior Division Madha in respect of theRegular Civil Suit No. 22 2008 this Hon ble Court may be pleasedto examine the legality validity and or propriety of the impugnedJudgments and Orders dated 17.11.2016 passed by the learnedCivil Judge Junior Division Madha in respect of Regular Civil Suitno.22 2008 below Exhibit 35 and 39After examining the legality validity and or propriety of the same this Hon ble Court may be pleased to quash and set aside the on 01 06 2021 on 22 03 civil wp 7436 17.docseparate impugned Judgment and Orders dated 17.11.2016 passedby the learned Civil Judge Junior Division Madha and further bepleased to reject the applications below Exh. 35 and 39 preferred inthe Regular Civil Suit No. 22 2008." 3. Petitioners are aggrieved by the twin orders bothdated 17.11.2016 passed by the Civil Judge Junior Division Madha in two applications namely Exh. 35 and Exh. 39 filedby the respondents in Regular Civil Suit No. 208.4. Briefly stated the facts are as under: 4.1 Petitioners are the original defendants andrespondents are the legal heirs of the original plaintiff. Thesuit property for which entitlement is claimed by theplaintiffs is Gat No. 139 admeasuring 0.69 acres situated inVillage Chandaj Taluka Madha District Solapur. The originalplaintiff i.e respondent herein filed Regular Civil Suit No. 22of 2008 against the defendants for permanent injunction inrespect of the suit property. The original plaintiff expired on16.04.2015. His legal heirs are the present respondents.4.2 Respondents i.e plaintiffs filed application Exh. 35stating that original defendant No. 1 had expired on27.03.2014 and his legal heirswererequired to be brought on record. Petitioners objected to thisapplication on the ground of maintainability. Respondents on 01 06 2021 on 22 03 civil wp 7436 17.docplaintiffs thereafter filed an application Exh. 39 for seekingamendment of the suit plaint. This Application was filed on25.10.2016. The petitioners objected to the proposedamendment application on the ground of maintainability andlimitation inter alia contending that the proposedamendment if allowed would change the nature of the suitand a completely different relief would be introduced andgranted by the Court. On the aspect of limitation it wascontended that the cause of action to seek the relief hadarisen in 2008 immediately on filing the written statementand the application was filed after a period of 8 years. 4.3 The Trial Court allowed both the aforesaidapplications Exh. 35 and Exh. 39 by two separate orderswhich are annexed as “Exh. J” and “Exh. K” to the paperbook.5. Mr. Shah learned counsel appearing for thepetitioners has assailed both the orders in the present writpetition. In respect of the order below Exh. 35 it issubmitted that the same was filed beyond limitation after aperiod of almost 2 years and 3 months and therefore notmaintainable. He submitted that in the year 2016 therespondents had filed a similar application Exh. 26 to on 01 06 2021 on 22 03 civil wp 7436 17.docimplead the legal heirs of the deceased original plaintiff.That application was allowed even though it was filed beyondthe period of 90 days there was a delay of 10 months. Thepresent application has been delayed by more than 2 yearsand 3 months. Hence on the ground of limitation thepresent application was required to be dismissed rather thanallowed by the trial Court.6. In respect of Application under Exh. 39 Mr. Shahcontended that the petitionershad filed writtenstatement dated 07.08.2008 inter alia denying the right ofthe plaintiff as the owner of the suit property. He submittedthat as a complete afterthought after reading the writtenstatement respondents filed application Exh. 39 in the year2016 for amendment of the plaint and the amendment wasto the effect that the respondents sought declaration of titlein the name of the original deceased plaintiff as the owner ofthe suit property on the basis of a deed of purchase dated25.07.1979. Thus he submitted that though the original suitwas filed for seeking injunction by way of the proposedamendment application Exh. 39 the respondents now soughtto completely alter the nature of the suit by seekingdeclaratory title of the suit property. It was further on 01 06 2021 on 22 03 civil wp 7436 17.doccontended that the amendment application was filed inOctober 2016 whereas the original suit was of the year 2008 thus the said application altering the entire nature of thesuit filed after a period of 8 years from the date of the causeof action and therefore was not maintainable and deservedto be dismissed. He has therefore submitted that both theimpugned orders dated 17.11.2016 passed by the trial Courtin Exh. 35 and Exh. 39 be dismissed with costs.7. PER CONTRA Mr. Kulkarni learned counselappearing for the respondents original plaintiffs hassupported the two impugned orders dated 17.11.2016 andcontended that the amendment which is sought by theplaintiffs is before commencement of the trial and the trialcourt has taken a liberal view while deciding the amendmentapplication and allowed the same. He submitted that forconsideration of the amendment application the merits ofthe amendment would not be gone into and further if thepetitioners are aggrieved on the issue of limitation thepetitioners can always approach the trial court and seekframing of the issue of limitation. He contended that sinceamendment application Exh. 39 has been allowed it relatesback to the date of institution of the suit i.e 2008 under the on 01 06 2021 on 22 03 civil wp 7436 17.docdoctrine of “relate back”. Finally it was submitted thatseeking declaration regarding ownership in the suit propertyalongwith permanent injunction prayed for in the original suitplaint did not alter the nature of the suit.8. I have heard the learned counsel for therespective parties and perused the pleadings. Submissionsmade by the parties are on the pleaded lines.9. Before we advert to the respective submissions provisions of Order 6 Rule 17 relating to amendment arerelevant for consideration in the present case. Order VI Rule17 is extracted as under: "17.Amendment of pleadings. The Court may at anystage of the proceedings allow either party to alter or amendhis pleadings in such manner and on such terms as may bejust and all such amendments shall be made as may benecessary for the purpose of determining the real questions incontroversy between the parties:Provided that no application for amendment shall beallowed after the trial has commenced unless the Courtcomes to the conclusion that in spite of due diligence theparty could not have raised the matter before thecommencement of trial."10. It is stated that though the courts have a verywide discretion in the matter of amendment of pleadings Courts power must be exercised judiciously and with greatcare while deciding the applications for amendment. One ofthe principal conditions required to be considered by the on 01 06 2021 on 22 03 civil wp 7436 17.docCourt is whether grant of amendment is necessary fordetermination of the real controversy in the suit. If thiscondition is not satisfied the amendment cannot be allowed.This is a basic test which should govern the Court’sdiscretion in granting or refusing amendment. The SupremeCourt in a decision in the case of Revajeetu Builders andDevelopers Vs. Narayanswamy and Sons & Ors1 haslaid down some basic principles which ought to be taken intoconsideration while allowing or rejecting the application foramendment. Paragraph numbers 39 and 63 are relevant andextracted as under: "39. The rule however is not a universal one and under certaincircumstances such an amendment may be allowed by the courtnotwithstanding the law of limitation. The fact that the claim isbarred by law of limitation is but one of the factors to be taken intoaccount by the court in exercising the discretion as to whether theamendment should be allowed or refused but it does not affect thepower of the court if the amendment is required in the interests ofjustice.Whether the amendment sought is imperative forproper and effective adjudication of the caseWhether the application for amendment is bona fideor mala fideThe amendment should not cause such prejudice tothe other side which cannot be compensatedadequately in terms of money Refusing amendment would in fact lead to injustice or1(2009) 10 SCC 842(1974) 2 SCC 3933(1994) 2 SCC 29 on 01 06 2021 on 22 03 civil wp 7436 17.doclead to multi ple litigationWhether the proposed amendment constitutionally orfundamentally changes the nature and character ofthe case andas a general rule the court shoulddecline amendments if a fresh suit on the amendedclaims would be barred by limitation on the date ofapplication.These are some of the important factors which may be kept in mindwhile dealing with application filed under Order 6 Rule 17. Theseare only illustrative and not exhaustive."11. Mr. Shah learned counsel appearing for thepetitioners has laid emphasis on clauseandofparagraph No. 63 herein above in support of his challenge tothe order passed below Exh. 39 and vehemently stated thatthe proposed amendment of seeking declaratory title isunconstitutional and would fundamentally change the natureand character of the original suit. He has further argued thatif the principle enunciated in clauseabove is applied tothe facts of the present case then in that case the trialcourt ought to have considered the fact that the amendmentapplication was moved 8 years after the cause of action andwas therefore barred by limitation on the date of theapplication.12. On a careful reading of the provisions of Order 6Rule 17 of the Code of Civil Procedure and the decision in the on 01 06 2021 on 22 03 civil wp 7436 17.doccase of Revajeetu Builders and DevelopersI have nohesitation in accepting the submissions made on behalf ofthe petitioners in the present petition in respect of challengeto the order under Exh. 39. It is an admitted position in thepresent case that the predecessor in title of the petitionershas challenged the title of the predecessor in title of therespondents by filing his written statement on 07.08.2008 therefore the cause of action for seeking declaratory relief oftitle to the suit property arose on 07.08.2008. Theamendment is now sought after more than 8 years from thedate of denial of the title. Under the provisions of Article 58of the Limitation Act 1963 in such a case the maximumperiod of limitation allowed is 3 years and thus the action onthe part of the respondentswas clearly barred bythe law of limitation. The amendment sought for to seekdeclaratory relief of title could not have been allowed andgranted in view of the aforesaid provisions because theoriginal suit was a suit simpliciter seeking injunction.Petitioners have relied on the decision of the Apex Court inthe case of Anathula Sudhakar Vs. P. Buchy Reddy(dead) by LRs. & Ors.4 and more specifically paragraph 21thereof. There is a very categorical summarization of theposition in regard to suits for perpetual injunction relating to4(2008) 4 SCC 594 on 01 06 2021 on 22 03 civil wp 7436 17.docimmovable property viz a viz. claiming title. For the sake ofconvenience the summarization as stated in paragraph 21 ofthe above judgment is extracted herein below forconvenience: "21.To summarize the position in regard to suits for prohibitoryinjunction relating to immovable property is as under :(a) Where a cloud is raised over plaintiff s title and hedoes not have possession a suit for declaration andpossession with or without a consequential injunction is theremedy. Where the plaintiff s title is not in dispute or under acloud but he is out of possession he has to sue forpossession with a consequential injunction. Where there ismerely an interference with plaintiff s lawful possession orthreat of dispossession it is sufficient to sue for an injunctionsimpliciter.(b) As a suit for injunction simpliciter is concerned onlywith possession normally the issue of title will not be directlyand substantially in issue. The prayer for injunction will bedecided with reference to the finding on possession. But incases where de jure possession has to be established onthe basis of title to the property as in the case of vacantsites the issue of title may directly and substantially arise forconsideration as without a finding thereon it will not bepossible to decide the issue of possession.(c) But a finding on title cannot be recorded in a suit forinjunction unless there are necessary pleadings andappropriate issue regarding titleWhere there are necessary pleadings regarding title and appropriate issue relating to title on which parties leadevidence if the matter involved is simple and straight forward the court may decide upon the issue regarding title even in a suit for injunction. But such cases are theexception to the normal rule that question of title will not bedecided in suits for injunction. But persons having clear title1 on 01 06 2021 on 22 03 civil wp 7436 17.docand possession suing for injunction should not be driven tothe costlier and more cumbersome remedy of a suit fordeclaration merely because some meddler vexatiously orwrongfully makes a claim or tries to encroach upon hisproperty. The court should use its discretion carefully toidentify cases where it will enquire into title and cases whereit will refer to plaintiff to a more comprehensive declaratorysuit depending upon the facts of the case."13. Reliance is placed on clauseandquotedherein above. Applying the principles laid down in clauseto the facts of the present case it can besummarized that the respondents applicationExh. 39 filed on 25.10.2016 after a time gap of almost 8years is far beyond the allowable limitation period and isclearly barred by the law of limitation. More importantly theamendment sought for by Exh. 39 on the basis of a deed ofsale pertaining to the year 1979 will involve complicatedquestions of facts and law which are required to be provedby the concerned party by leading evidence. This relief ofseeking declaratory title alters the nature of the original suitfor injunction. Therefore the order dated 17.11.2016 passedbelow Exh. 39 allowing the amendment application filed bythe respondentsis required to be interfered withand is hereby quashed and set aside.14. In so far as the order passed below Exh. 35 isconcerned it is stated that application is filed on 28.06.20161 on 01 06 2021 on 22 03 civil wp 7436 17.docstating that defendant No. 1 had expired on 27.03.2014 andtherefore his legal heirs are required to be brought onrecord. It is stated in the application that Shyarmao EknathHegadkarhas already beenimpleaded as a defendant in the suit hence the other legalheirs of the deceased be impleaded as defendants. By orderdated 17.11.2016 passed below Exh. 35 the application forbringing the legal heirs of deceased defendant No. 1 onrecord is allowed. Though there is a delay in filing theapplication for bringing the legal heirs on record in theinterest of justice and equity the delay is condoned. Thoughthere is no formal prayer for condonation of delay nor hasthe trial Court considered the same however in the interestof justice and the reasons mentioned in paragraph 4 of theorder passed below Exh. 35 the said order is upheld. Hencethe challenge to the order dated 17.11.2016 passed belowExh. 35 in the present writ petition fails.15. In view of the above discussion and findings Ipass the following order: 1 on 01 06 2021 on 22 03 civil wp 7436 17.doc(i) Order dated 17.11.2016 passed below Exh.39 by the learned Civil Judge Junior Division Madha in Regular Civil Suit No. 208 isquashed and set asideOrder dated 17.11.2016 passed below Exh.35 by the learned Civil Judge Junior Division Madha in Regular Civil Suit No. 208 isupheldRegular Civil Suit No. 208 is expeditedand learned Trial Court shall make anendeavour to complete the trial and disposeof the suit within a period of six months fromtoday.16. Writ petition is partly allowed in the above terms.However there shall be no order as to costs.17. Parties shall act on an authenticated copy of thisjudgment. 1

Articles published in news portal “Newslaundry” neither qualify as goods nor as service as defined under Section 2(j) and 2(z) of the Trademark Act: High Court Of Bombay

Mere use of the registered trade mark of the Sakal Media Group in articles authored by the petitioner and published by the news portal Newslaundry, do not fit into the definition of false application of the trade mark in relation to goods or services. This was said in the case of Prateek Chandragupt Goyal v. State of Maharashtra [CRIMINAL WRIT PETITION NO. 62 OF 2021] in High Court of Bombay.  The facts of the case date back to June 2020 when an FIR was lodged by Sakal Media Group stating that the petitioner had committed offence under Section 103 of the Trademarks Act by falsely applying trademarks of the Sakal Media Group in two articles he authored and which appeared on Newslaundry website. Assailing the FIR, the petitioner moved the High Court. The petitioner contended that ingredients of the offence under Section 103 of the aforesaid Act were totally absent in the present case. Secondly, it was contended that the trade mark of Sakal Media Group was shown in the articles written by the petitioner and published on the news portal ‘Newslaundry’, only to indicate that those specific articles pertained to the Sakal Media Group. In these circumstances, there was no question of the said trade mark being falsely applied to any goods or services. Thirdly, it was contended that action of the petitioner was protected as a nominative fair use of the trade mark of Sakal Media Group under Section 30(1)(a) and (b) of the aforesaid Act. On the other hand, the respondents by referring to Section 103 contended that the petitioner had clearly falsely applied the registered trade mark of Sakal Media Group by prominently showing the mark on articles published on the news portal ‘Newslaundry’. Secondly, it was contended that when the word ‘Sakal’ was clicked on online search, it led to the said articles authored by the petitioner and published on the news portal ‘Newslaundry’, thereby demonstrating that the offence under Section 103 of the said Act. After analyzing the facts and keeping in mind the settled position of law on the subject, the Court said that “No doubt, the mark shown in the two articles is indeed the ‘trade mark’ of Sakal Media Group under Section 2(z)(b) of the aforesaid Act, but, the said mark being shown in the articles cannot be said to be in the context of either ‘goods’ or ‘services”. At the worst, if the online search for ‘Sakal’ led to the said articles, then that would be subject matter of an injunction suit but that falls within the realm of a civil dispute that could be raised by Sakal Group.

on 20 04 2021 on 20 04 1 cri wp 62 2021.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYCRIMINAL APPELLATE SIDECRIMINAL WRIT PETITION NO. 62 OF 2021Prateek Chandragupt Goyal.... PETITIONERAge : 38 years Occupation : JournalistR at. F 16 Mantri Avenue 2 Panchvati Pashan Road Pune 4110078 Vs.1. State of Maharashtra .... RESPONDENTS through Vishrambaug Police Station Pune Notice to be served on the Public Prosecutor High Court Appellate Side Bombay2. Mahendra Narsinghrao Pisal Original Complainant Age : 54 years Occu : Chief Administrative Officer Salal Group R at. 234 Sagardeep Apartment Sadashiv Peth Pune 411030Mr. Nikhil Sakhardande Senior Advocate a w Mr. Nipun Katyal Advocate for petitionerMr. S.R. Shinde APP for respondent No.1 StateMs. Neha Prashant Advocate a w Mr. Yashowardhan Deshmukh Advocate for Respondent No.2 CORAM : S.S. SHINDE & MANISH PITALE JJ. RESERVED ON : 25.03.2021 PRONOUNCED ON : 20.04.2021 on 20 04 2021 on 20 04 2 cri wp 62 2021.odtJUDGMENT :Rule. Rule is made returnable forthwith. Heard finallywith the consent of learned counsel appearing for rival parties.2.By this writ petition the petitioner is seeking quashing ofFirst Information Report dated 16 09 2020 registered against himat Police Station Vishrambaug Pune for offence under Section 103of the Trade Marks Act 1999. The petitioner contends thatingredients of the said offence are not made out in the facts andcircumstances of the present case and that therefore the FirstInformation Report deserves to be quashed.3.The petitioner is a Journalist working with online newsportal ‘Newslaundry’. It is stated that he had earlier worked withother Media entities including ‘Sakal Times’. According to thepetitioner he specializes in investigative journalism and that he hasbeen working in this field since the year 2012.4.The aforesaid First Information Report has been registeredagainst the petitioner at the behest of respondent No.2who is the Chief Administrative Officer of Sakal Group which publishes newspapers in Marathi language called ‘Sakal’ andin English language called ‘Sakal Times’. The respondent No.2approached the police for registration of the First InformationReport on 16 09 2020 claiming that the petitioner committed on 20 04 2021 on 20 04 3 cri wp 62 2021.odtoffence under Section 103 of the aforesaid Act by falsely applyingtrade mark of Sakal Group in two articles authored by him andpublished in the aforesaid news portal called ‘Newslaundry’. Thetwo articles were published on 27 03 2020 and 11 06 2020. In thesaid articles the registered trade mark of the Sakal Media Group andSakal Times was shown with prominence at the top. In the articlepublished on 27 03 2020 the heading was ‘The future is bleak:Sakal Times staffers say they have been sacked in violation ofMaharashtra order’. In the article published on 11 06 2020 theheading was ‘They wanted to get rid of us : over 50 people laid offas Sakal Times closes down’. According to the respondent No.2these were highly defamatory articles against the Sakal Media Groupand that use of the official logos trade mark of the Sakal MediaGroup and Sakal Times on these articles clearly amounted to falselyapplying the said trade mark thereby resulting in offence underSection 103 of the aforesaid Act. In the First Information Report itwas stated that the offence was committed from 27 03 2020 to11 06 2020 and as noted above the First Information Report stood registered after three months on 16 09 2020.5.It is significant that prior to lodging the complaint leadingto registration of First Information Report a legal notice dated12 06 2020 was sent to the petitioner alleging that the SakalMedia Group was defamed by him and an amount of Rs.65 00 000 was claimed from him. On 19 06 2020 the petitioner sent a replyto the said legal notice. On 03 09 2020 the Sakal Media Groupfiled a suit for injunction against the Newslaundry Media Pvt. Ltd. on 20 04 2021 on 20 04 4 cri wp 62 2021.odtseeking an injunction against the said defendant and the petitionerfor removing the said articles from the news portal. The said suit ispending.6.The present writ petition was filed in October 2020 wherein notice was issued and it was directed that while theinvestigation shall continue the chargesheet could be filed only withthe leave of this Court. Thereafter on 27 01 2021 this Courtrecorded statement made on behalf of the petitioner that he wouldappear before the Investigating Officer on a specific date and it wasdirected that the Investigating Officer shall not insist for productionof laptop and hard disk by the petitioner. The said interim orderscontinued during the pendency of the writ petition.7.Mr. Nikhil Sakhardande learned Senior Counselappearing along with Mr. Nipun Katyal learned Counsel for thepetitioner submitted that ingredients of the offence under Section103 of the aforesaid Act were totally absent in the present case andthat therefore the First Information Report deserved to be quashed.The learned Senior Counsel invited attention of this Court toSections 101 102 and 103 of the aforesaid Act as also Sections 29and 30 thereof to contend that the trade mark of Sakal Media Groupwas not applied by the petitioner in relation to either any goods orany services thereby indicating that there was no question of falselyapplying the trade mark. It was submitted that if the trade mark ofSakal Media Group was used by the petitioner in any manner toshow that the news portal in which the articles of the petitioner on 20 04 2021 on 20 04 5 cri wp 62 2021.odtwere published was itself shown as being a news portal of Sakal then it could be said that the trade mark of Sakal Media Group hadbeen falsely applied so as to attract the ingredients of the offenceunder Section 103 of the aforesaid Act. Such being not the case inthe present matter it was submitted that the First InformationReport had been wrongly registered against the petitioner.8.It was further submitted that the trade mark of SakalMedia Group was shown in the articles written by the petitioner andpublished on the news portal ‘Newslaundry’ only to indicate thatthose specific articles pertained to the Sakal Media Group. In thesecircumstances there was no question of the said trade mark beingfalsely applied to any goods or services so as to attract theingredients of the aforesaid offence. Additionally and withoutprejudice to the aforesaid submissions the learned Senior Counselfor the petitioner submitted that the action of the petitioner wasprotected as a nominative fair use of the trade mark of Sakal MediaGroup under Section 30(1)(a) andof the aforesaid Act. Lastly it was submitted that the respondent No.2 had already initiated civilproceedings in the form of a suit for injunction in respect of the saidarticles and therefore the grievance if any of the respondent No.2would be addressed before the competent Civil Court in the saidproceedings. On this basis it was submitted that the FirstInformation Report deserved to be quashed.9.On the other hand Ms. Neha Prashant learned Counselalong with Mr. Yashowardhan Deshmuk learned Counsel appearing on 20 04 2021 on 20 04 6 cri wp 62 2021.odtfor contesting respondent No.2 submitted that the admitted facts inthe present case demonstrated that ingredients of the offence underSection 103 of the aforesaid Act were prima facie made out andthere was no question of quashing of the First Information Report.By referring to Section 103 of the aforesaid Act the learned Counselappearing for Respondent No.2 submitted that in the present case the petitioner had clearly falsely applied the registered trade mark ofSakal Media Group by prominently showing the mark on articlespublished on the news portal ‘Newslaundry’. It was submitted thatwhen the word ‘Sakal’ was clicked on online search it led to the saidarticles authored by the petitioner and published on the news portal‘Newslaundry’ thereby demonstrating that the offence underSection 103 of the said Act was indeed committed in the presentcase. The learned Counsel emphasized upon Section 102(2)(b) ofthe said Act in support of the said contention and submitted thatsince Sakal Media Group and the news portal ‘Newslaundry’ were inthe same segment of providing news services the offence wasclearly committed in the facts and circumstances of the present case.10.As regards the alternative submission regardingnominative fair use raised on behalf of the petitioner it wassubmitted that the petitioner had no right to claim any suchprotection because the use of the registered trade mark of SakalMedia Group prominently in the said articles unfairly projected theSakal Media Group thereby causing loss to its image and finances demonstrating that the petitioner was not entitled to claimnominative fair use in the present case. In this regard the learned on 20 04 2021 on 20 04 7 cri wp 62 2021.odtCounsel for the respondent No.2 relied upon judgment of theMadras High Court in the case of Consim Info Pvt. Ltd. Vs. GoogleIndia Pvt. Ltd. and Ors. 2010(6) CTC 813 and judgment of DelhiHigh Court in Hawakins Cookers Ltd. Vs. Murugan Enterprises 2012SCC OnLine Del 2118. It was further submitted that merely becausethe respondent No.2 had filed a Civil suit for injunction againstNewslaundry Media Private Limited it could not result in thecriminal proceedings being terminated at this stage. On this basis itwas submitted that the writ petition ought to be dismissed.11.In order to appreciate the rival contentions raised in thepresent petition it would be necessary to refer to Sections 101 102and 103 of the aforesaid Act which read as follows:“101. Meaning of applying trade marks andtrade descriptions A person shall bedeemed to apply a trade mark or mark oftrade description to goods or services whoapplies it to the goods themselves or usesit in relation to services or(b) applies it to any package in or with whichthe goods are sold or exposed for sale or hadin possession for sale or for any purpose oftrade or manufacture or(c) places encloses or annexes any goodswhich are sold or exposed for sale or had inpossession for sale or for any purpose of tradeor manufacture in or with any package orother thing to which a trade mark or mark ortrade description has been applied or on 20 04 2021 on 20 04 8 cri wp 62 2021.odt(d) uses a trade mark or mark or tradedescription in any manner reasonably likelyto lead to the belief that the goods or servicesin connection with which it is used aredesignated or described by that trade mark ormark or trade description or(e) in relation to the goods or services uses atrade mark or trade description in any sign advertisement invoice catalogue businessletter business paper price list or othercommercial document and goods aredelivered or services are rendered to a personin pursuance of a request or order made byreference to the trade mark or tradedescription as so used.(2) A trade mark or mark or trade descriptionshall be deemed to be applied to goodswhether it is woven in impressed on orotherwise worked into or annexed or affixedto the goods or to any package or otherthing.102. Falsifying and falsely applying trademarks :A person shall be deemed to falsify atrade mark who either without the assent of the proprietor of thetrade mark makes the trade mark ordeceptively similar mark or(b) falsifies any genuine trade mark whetherby alteration addition effacement orotherwise(2) A person shall be deemed to falsely applyto goods or services a trade mark who on 20 04 2021 on 20 04 9 cri wp 62 2021.odtwithout the assent of the proprietor of thetrade markapplies such trade mark or a deceptivelysimilar mark to goods or services or anypackage containing goodsuses any package bearing a mark which isidentical with or deceptively similar to thetrade mark of such proprietor for the purposeof packing filling or wrapping therein anygoods other than the genuine goods of theproprietor of the trade mark.(3) Any trade mark falsified as mentioned insub sectionor falsely applied asmentioned in sub sectionis in this Actreferred to as a false trade mark.(4) In any prosecution for falsifying a trademark or falsely applying a trade mark togoods or services the burden of proving theassent of the proprietor shall lie on theaccused.103. Penalty for applying false trade marks trade descriptions etc. Any person whofalsifies any trade mark or(b) falsely applies to goods or services anytrade mark or(c) makes disposes of or has in hispossession any die block machine plate orother instrument for the purpose of falsifyingor of being used for falsifying a trade mark or on 20 04 2021 on 20 04 10 cri wp 62 2021.odt(d) applies any false trade description togoods or services or(e) applies to any goods to which anindication of the country or place in whichthey were made or produced or the name andaddress of the manufacturer or person forwhom goods are manufactured is required tobe applied under section 139 a falseindication of such country place name oraddress or(f) tampers with alters or effaces anindication of origin which has been applied toany goods to which it is required to beapplied under section 139 or(g) causes any of the things above mentionedin this section to be done shall unless heproves that he acted without intent todefraud be punishable with imprisonment fora term which shall not be less than sixmonths but which may extend to three yearsand with fine which shall not be less than sixmonths but which may extend to three yearsand with fine which shall not be less thanfifty thousand rupees but which may extendto two lakh rupees :Provided that the Court may for adequateand special reasons to be mentioned in thejudgment impose a sentence ofimprisonment for a term of less than sixmonths or a fine of less than fifty thousandrupees.”12.It would also be relevant to refer to the definitions of‘goods’ ‘service’ and ‘trade mark’ as provided in the said Act. Thesaid definitions read as follows: on 20 04 2021 on 20 04 11 cri wp 62 2021.odt“goods” means anything which is the subject oftrade or manufacture “service” means service of any descriptionwhich is made available to potential users andincludes the provision of services in connectionwith business of any industrial or commercialmatters such as banking communication education financing insurance chit funds realestate transport storage material treatment processing supply of electrical or other energy boarding lodging entertainment amusement construction repair conveying of news orinformation and advertising“trade description” means any description statement or other indication direct or indirect as to the number quantity measure gaugeor weight of any goods or“trade mark” means a mark capable of beingrepresented graphically and which is capable ofdistinguishing the goods or services of oneperson from those of others and may includeshape of goods their packaging andcombination of colours and in relation to Chapter XIIa registered trade mark or a mark used inrelation to goods or services for the purpose ofindicating or so as to indicate a connection inthe course of trade between the goods orservices as the case may be and some personhaving the right as proprietor to use the mark and”13.A perusal of Section 101 of the said Act shows that aperson is deemed to have applied a trade mark to goods or services who applies it to the goods themselves or uses it in relation to on 20 04 2021 on 20 04 12 cri wp 62 2021.odtservices. Section 101(1)(e) provides that a trade mark will bedeemed to have been applied in relation to goods or services when itis used in any sign advertisement invoice catalogue businessletter business paper price list or other commercial document andgoods are delivered or services are rendered to a person inpursuance of a request or order made by reference to the trade markor trade description so used. Thus such a trade mark would have tobe used in relation to such documents.14. Section 102(2)(b) of the aforesaid Act provides that aperson shall be deemed to falsify a trade mark who uses anypackage bearing a mark which is identical with or deceptivelysimilar to the trade mark of such proprietor for the purpose ofpacking filling or wrapping therein any goods other than thegenuine goods of the proprietor of the trade mark. Section 103(b)of the aforesaid Act provides that any person who falsely applies thegoods or services to any trade mark shall unless he proves that heacted without intent to defraud be punishable with imprisonmentfor a term not less than six months but which may extend to threeyears and with fine which is not less than Rs.50 000 and canextend up to Rs.2 00 000 .15.The real question is whether the two articles written bythe petitioner on 27 03 2020 and 11 06 2020 wherein theregistered trade mark of Sakal Media Group was printed could fallwithin the definition of ‘goods’ or ‘service’ as defined in the abovequoted provisions of the aforesaid Act. If so whether the petitioner on 20 04 2021 on 20 04 13 cri wp 62 2021.odthad used the said registered trade mark of Sakal Media Group insuch a manner that under Sections 101 102 and 103 of theaforesaid Act he could be said to have falsely applied the trademark to ‘goods’ or ‘services’.16.The articles authored by the petitioner and published inthe news portal ‘Newslaundry’ neither qualify as goods nor asservice as defined under Section 2(j) and 2(z) of the aforesaid Act.No doubt the mark shown in the two articles is indeed the ‘trademark’ of Sakal Media Group under Section 2(z)(b) of the aforesaidAct but the said mark being shown in the articles cannot be said tobe in the context of either ‘goods’ or ‘services’. It would have been acompletely different matter if the petitioner had used the registeredtrade mark of Sakal Media Group to portray as if the news portalitself was that of Sakal Media Group. It is an admitted position thatthe articles were published in the online news portal ‘Newslaundry’and there was no suggestion that the said news portal itself was thatof ‘Sakal’. Merely because an online search for the word ‘Sakal’ ledto the aforesaid articles of the petitioner published in the newsportal ‘Newslaundry’ does not mean that the registered trade markof Sakal Media Group was falsely applied to goods or services by thepetitioner. At worst it could be said that such an online searchleading to the aforesaid articles might be subject matter of aninjunction suit at the behest of Sakal Media Group due to thecontents of the said articles but that falls within the realm of a civildispute that could be raised by the respondent No.2. In fact therespondent No.2 did issue Notice on behalf of the Sakal Media on 20 04 2021 on 20 04 14 cri wp 62 2021.odtGroup and chose to file a suit for injunction before the competentCivil Court which is admittedly pending.17.But the question for consideration in this petition is as towhether an offence could be registered against the petitioner underSection 103 of the aforesaid Act. In order to do so at least primafacie the ingredients of the offence ought to be demonstrated. But as noted above on proper interpretation of Sections 101 102 and103 of the aforesaid Act it becomes clear that in the facts andcircumstances of the present case mere use of the registered trademark of the Sakal Media Group in articles authored by the petitionerand published by the news portal ‘Newslaundry’ do not fit into thedefinition of false application of the trade mark in relation to goodsor services. Therefore in the absence of ingredients of the offencebeing made out even on admitted facts the First InformationReport could not have been registered.18.Since we are of the opinion that on a bare reading of therelevant provisions of the said Act quoted above and applying themto the admitted facts in the present case ingredients of the Act ofthe offence under Section 103 of the said Act are not made out itwould not be necessary to go into alternative contention raised onbehalf of the petitioner. It pertains to nominative fair use of thetrade mark under Section 30 of the said Act. In this regard thelearned Counsel appearing for the respondent No.2 has placedreliance on the judgment of the Madras High Court in the case ofConsim Info Pvt. Ltd. Vs. Google India Pvt. Ltd. and Ors.1 SCC 395 the Hon’ble Supreme Court has laid down thatwhen offence is not made out on a bare reading of the allegationsand proceeding on the basis that such allegations are true thecriminal proceedings and First Information Report deserve to bequashed.20.Hence we are of the opinion that the petitioner has madeout a case for this Court to exercise jurisdiction under Article 226 of on 20 04 2021 on 20 04 16 cri wp 62 2021.odtthe Constitution of India and Section 482 of the Criminal ProcedureCode to grant the prayer made in the writ petition.21.Accordingly the writ petition is allowed in terms of prayerclausewhich reads as follows:“for a Writ of Certiorari or a Writ in the natureof Certiorari and for a Writ of Mandamus or aWrit in the nature of Mandamus or any otherappropriate Writ direction or order calling forthe records and proceedings of the said FIRdated 16th September 2020 and bearing No.0675 registered by the Vishrambaug PoliceStation at Pune and after going through thevalidity propriety and legality thereof be pleasedto quash and set aside the said FIR(S.S. SHINDE J.)

Calculation of maintenance does not include house rent: High Court of Delhi

When the court decides the quantum of maintenance to be given by the husband to the wife, it shall not take into consideration deduction such as repayment of loan, rent etc. and shall only calculate deductions from tax or EPF. This was decided in the case of Nitin Sharma Vs. Sunita Sharma & Ors. [C RL.REV.P. 322/2020 & Crl.M.A. 13958/2020 and CRL.REV.P. 374/2020] by Hon’ble Justice Suresh Kumar Kait. The subject matter of in these petitions is essentially a matrimonial dispute The marriage between the parties was solemnized as per Hindu rites and out this wedlock, two twin boys were born. Due to certain differences, parties started living separately and the two sons are in the custody of wife. The wife claimed she is helpless and unemployed and is totally dependent upon husband for her survival and that for their sons. Dissatisfied with the amount of interim maintenance awarded by the learned Family Court, the wife preferred an application seeking enhancement of interim maintenance and the said application was allowed. The petitioner/husband is seeking quashing of order vide which amount of interim maintenance has been enhanced to Rs.22, 000. According to husband, the trial court has failed to appreciate that he had been regularly paying ad interim maintenance @Rs.10,000/- per month to his wife, though he himself has been earning Rs.39,560/- per month.. Also, he said that the trial court has also not taken into consideration the amount of rent paid by him. It is stated that in the affidavit of income filed by his wife, she has not shown her expenditures. The stand of wife is that the amount of interim maintenance fixed after it was taken into consideration that husband’s mother was dependent on him. It was further stated that mother of husband is in a good health condition and even otherwise, she is entitled to free medical facilities from Central Railways Hospital. Also, while passing the order the trial court has divided the income of husband into six shares, whereas it should have been actually divided into five shares. The court said that the trial court has rightly held husband responsible for maintaining his wife and children. The Supreme Court in Sunita Kachwaha Vs. Anil Kachwaha (2014) 16 SCC 715 has held “merely because wife was earning something, would not be a ground to reject her claim for maintenance particularly when proof of her earnings were not placed on record before the courts below.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 08.02.2021 Pronounced on: 18.02.2021 CRL.REV.P. 322 2020 & Crl.M.A. 13958 2020 NITIN SHARMA Through: Ms. Pooja Chhabra Advocate Petitioner SUNITA SHARMA & ORS. Respondents Through: Ms. Mamta Mayer & Mr. K.K. Krishan Prabhu Advocates CRL.REV.P. 374 2020 SUNITA SHARMA & ORS. Petitioners Through: Ms. Mamta Mayer & Mr. K.K. Krishan Prabhu Advocates NITIN SHARMA Respondent Through: Ms. Pooja Chhabra Advocate HON BLE MR. JUSTICE SURESH KUMAR KAIT JUDGMENT Vide above captioned first petition petitioner husband is seeking quashing of order dated 16.07.2020 passed by the learned Principal Judge Family Court Dawarka vide which amount of interim maintenance has been Crl. Rev. P. 322 2020 & Crl. Rev. P. 374 2020 enhanced to Rs.22 000 against the order dated 17.09.2019 passed by the learned trial court whereby he has been directed to pay maintenance of Rs.10 000 p.m. to respondent wife. Vide above captioned second petition petitioner wife is seeking modification of the order dated 16.07.2020 passed by the learned Principal Judge Family Court Dwarka vide which interim maintenance amount of Rs.10 000 per month awarded by the trial court has been enhanced to Rs.22 000 while claiming it to be on the lower side. The subject matter of dispute in these petitions is essentially a matrimonial dispute. Since the orders impugned in both the petitions are common therefore with the consent of learned counsel for the parties these petitions have been heard together and are being disposed of by this common judgment. In a petition under Section 125 Cr.P.C. filed by the wife the learned trial court vide order dated 17.09.2019 has passed following directions: “No settlement could arrive at between the parties in the counselling cell. However it appears that parties are agreeable to live in a rented accommodation. But the accommodation somewhere near his office. accommodation before the next date of hearing. By that is directed Crl. Rev. P. 322 2020 & Crl. Rev. P. 374 2020 time he is directed to pay Rs.10 000 per month as interim maintenance to petitioner. The petitioner shall give her complete address respondent where he can meet both his children as per his convenience.” Dissatisfied with the amount of interim maintenance awarded by the learned Family Court vide order dated 17.09.2020 the wife preferred an application seeking enhancement of interim maintenance and the said application was allowed vide order dated 16.07.2020 while observing as under: “In view of the above facts and circumstances the application filed by the petitioners for interim maintenance is allowed. The respondent is directed to pay a sum of Rs.7 400 per month each to petitioners no.1 to 3 i.e. Rs.22 000 PM from the date of filing of the application till the disposal of the petition. The respondent is directed to make the payment of entire arrears of maintenance within a period of 5 months from today. Any amount paid by the respondent to the petitioners as maintenance under the order of any court shall be adjusted against the arrears. The application is disposed of accordingly.” Aggrieved against the aforesaid orders parties have approached this Court for relief. The stand taken by husband is that the order dated 16.07.2020 is illegal and devoid of merits. According to husband the trial court has failed to appreciate that he had been regularly paying ad interim maintenance Crl. Rev. P. 322 2020 & Crl. Rev. P. 374 2020 @Rs.10 000 per month to his wife though he himself has been earning Rs.39 560 per month. Husband has alleged that the learned trial court has erred in taking his annual income at Rs.5 19 655 as per Income Tax Returns ITR) for the assessment year 2019 20 whereas his actual income as per ITR for the said year was Rs.4 36 880 after deduction of tax. He has further raised grievance that while passing the impugned order the learned trial court has not considered his salary receipt for the month of September 2019 but has wrongly considered one entry in the bank statement which showed credit of Rs.44 560 taking it to be his salary on 30.08.2019 whereas the fact is that in the month of August 2019 he had received annual dress allowance of Rs.5 000 in addition to his salary of Rs.39 560 p.m. Besides trial court has also not taken into consideration the amount of rent paid by him. It is stated that in the affidavit of income filed by his wife she has not shown her expenditures. Learned counsel for husband further submitted that the twin children born out of the wedlock of the parties are 06 years old and only a meagre sum of Rs.750 each has to be paid towards their school fees and the maintenance amount fixed at Rs.7 400 p.m. each person is exorbitant and difficult for the husband to pay as he has to take care of his old and ailing mother also Crl. Rev. P. 322 2020 & Crl. Rev. P. 374 2020 who is totally dependent upon him. Learned counsel for husband also submitted that he has not deserted his wife and rather she herself has chosen to stay away from him and learned trial court has failed to take into consideration provisions of Sub Sections 4 and 5 of Section 125 Cr.P.C. which provides that if wife has deserted her husband she is not entitled to any maintenance. 10. Lastly learned counsel for husband submitted that from his salary husband has to meet his expenses like paying rent arranging for washer man cook etc. and in addition has to bear expenses of his mother. It was submitted that he is not escaping from his responsibilities towards his wife and children and his bona fide is made out from the fact that he has been regularly paying the interim maintenance amount of Rs.10 000 p.m. but vide order dated 16.07.2020 maintenance amount has been enhanced to Rs.22 000 which is highly exorbitant and therefore this order deserves to be set aside. 11. On the other hand the stand of wife is that the amount of Rs.22 000 fixed towards interim maintenance vide impugned order dated 16.07.2020 is on the lower side and the learned trial court has ignored several relevant factors while passing the said order. It is averred by wife that in the impugned order the amount of interim maintenance fixed @Rs.22 000 per Crl. Rev. P. 322 2020 & Crl. Rev. P. 374 2020 month has been arrived at by taking into consideration ITR for the assessment years 2018 19 and 2019 20 according to which the annual income of husband has been taken as Rs.5 19 655 and monthly income has been taken as Rs.44 560 . In addition learned trial court has also taken into consideration that husband’s mother as dependent upon him which are required to be looked into by this Court. 12. Learned counsel for wife submitted that as per affidavit dated 01.02.2021 filed by husband before the trial court he has only three dependants his wife and two minor children and his mother is not dependent upon him as she is getting monthly pension of Rs.17 199 from Northern Railways and in addition she also receives rent of Rs.8 000 per month from a house owned by her. As per the said affidavit his brother is married and employed and thereby their financial position is very strong. Learned counsel next submitted that mother of husband is in a good health condition and even otherwise she is entitled to free medical facilities from Central Railways Hospital. It was strenuously stated on behalf of the wife that while passing the order dated 16.07.2020 learned trial court has divided the income of husband into six shares whereas it should have been actually divided into five shares. Crl. Rev. P. 322 2020 & Crl. Rev. P. 374 2020 It is stated that taking the income of husband @Rs.44 560 per month and by dividing it into five shares the monthly share of each member comes to Rs.8 661 p.m. each person against the actual awarded maintenance of Rs.7 400 p.m. each person. It was also submitted on behalf of wife that she is unemployed and is currently living in a rented accommodation with her two children which are in her custody and therefore the amount of interim maintenance awarded by the trial court vide order dated 16.07.2020 is required to be enhanced. In rebuttal it is stated on behalf of husband that wife was a dance instructor prior to the marriage and thus had source of income. It was also submitted that the husband had got employment in Indian Railways on compassionate grounds sighting ailment of his mother and after tendering of ‘no objection’ by his mother and he had undertaken to take care of his mother and younger brother and therefore the learned trial court has rightly divided husband’s income into six shares. It was also stated on behalf of husband that he has taken a loan to clear debts of his family from friends and relatives and towards its repayment a substantial amount is being paid from his salary. Learned counsel for husband also submitted that the trial court has erroneously taken into Crl. Rev. P. 322 2020 & Crl. Rev. P. 374 2020 consideration his monthly income @Rs.44 560 p.m. month against the actual income of Rs.39 560 p.m. and therefore the maintenance awarded by the trial court has to be reassessed and the impugned order dated 16.07.2020 is liable to be set aside. It has also been empathetically stated on behalf of husband that the interim maintenance @Rs.10 000 awarded by the court vide order dated 17.09.2019 was just and proper and the said order be 17. At this stage it has been averred before this Court that the husband undertakes to purchase two LIC policies as soon as the loan amount of husband gets given effect to. over. I have considered the rival submissions made by both the sides and gone through the impugned orders dated 17.09.2019 and 16.07.2020 as well as other material placed on record. 19. The factual matrix of the case as noted in the impugned order dated 16.07.2020 passed by the trial court is that the marriage between the parties was solemnized as per Hindu rites on 02.05.2013 and out this wedlock two twin boys were born. Due to certain differences parties started living separately and the two sons are in the custody of wife. The wife claimed that Crl. Rev. P. 322 2020 & Crl. Rev. P. 374 2020 she is helpless and unemployed and is totally dependent upon husband for her survival and that for their sons. She further claimed that her husband had his own vehicle and is living a luxurious life and can easily maintain her and the children but is deliberately neglecting his responsibilities. On these assertions the wife has claimed interim maintenance @Rs.40 000 per It stands also noted in the order that as per income affidavit of husband placed on record he is working as a Technician in Indian Railways and getting monthly salary of Rs.37 418 p.m. and as per copy of ITR for the assessment years 2018 19 and 2019 20 placed on record husband’s gross income was Rs.5 19 655 p.a. that is to say Rs.43 305 p.m. However while taking into consideration a credit entry of Rs.44 560 made in husband’s bank account on 30.08.2019 trial court has taken his income to be Rs.44 560 p.m. and divided it into six sharesand thereby granted maintenance of Rs.7 400 p.m. each person. 21. So far as assertion of husband that his wife was a dance trainer prior to her marriage has rightly not been taken into consideration by the trial court as no document has been placed on record that wife had ever worked after Crl. Rev. P. 322 2020 & Crl. Rev. P. 374 2020 marriage or is still working. Keeping this fact in mind the learned trial court has rightly held husband responsible for maintaining his wife and children. The Hon’ble Supreme Court in Sunita Kachwaha Vs. Anil Kachwaha 2014) 16 SCC 715 has held that merely because wife was earning something would not be a ground to reject her claim for maintenance particularly when proof of her earnings were not placed on record before the courts below. 22. As far as monthly income of the husband is concerned as per his affidavit of income he has declared his income as Rs.37 418 p.m. whereas as per ITR for the assessment year his monthly income is Rs.43 305 p.m. As per credit in bank account his salary is Rs.44 560 p.m which the trial court has taken into consideration. The extract of copy of salary slip for the month September 2019 placed on record bifurcates his earnings and deductions as under: Pay 32900 NPST I 3685 DA 3948 CGIC C 30 HRA 7896 OP Unit AL 1033 TRAN ALL 4032 RLY EMP. 50 NHA 477 NZ HRE BND 1000 TRAV. ALL 750 NZ HRE LOAN 4451 Gross Pay 50003 Deductions 10249 Net Pay 39 754 Crl. Rev. P. 322 2020 & Crl. Rev. P. 374 2020 23. The aforesaid extract of husband’s salary slip of income and expenditure reveals that out of total gross pay of Rs.50 003 per month deduction of Rs.10 249 are made towards pension scheme insurance society membership and repayment of loan. In the opinion of this Court while calculating the quantum of maintenance the income has to be ascertained keeping in mind that the deductions only towards income tax and compulsory contributions like GPF EPF etc. are permitted and no deductions towards house rent electric charges repayment of loan LIC payments etc. are permitted. On this aspect the pertinent observations of Hon’ble Supreme Court in Dr. Kulbhushan Kunwar v. Raj Kumari3 SCC 129 which have been followed by a Bench of Punjab & Haryana High Court in Seema & Anr. Vs. Gourav Juneja 2018 SCC OnLine P & H 3045 are as under: to maintain “12. Section 125 Cr.P.C. stipulates that if any person having sufficient means neglects or refuses to maintain his wife his legitimate or illegitimate minor child who are themselves shall be otherwise unable obligated to do so. A moral duty and a statutory obligation is cast upon the husband to maintain his wife minor children parents who otherwise are not capable of maintaining themselves. A person cannot be permitted to wriggle out of his statutory liability by way of availing huge loans and reducing a substantial amount of his salary for repayment of the same every month. Deductions that are made from the gross salary towards long term Crl. Rev. P. 322 2020 & Crl. Rev. P. 374 2020 savings which a person would get back at the end of his service and such as deductions towards Provident Fund General Group Insurance Scheme L.I.C. Premium State Life Insurance can be deemed to be an asset that he is creating for himself. In arriving at the income of a party only involuntary deductions like income tax provident fund contribution etc. are to be excluded. Therefore such deductions cannot be deducted or excluded from his salary while computing his “means” to pay maintenance. In the case of Dr. Kulbhushan Kunwar v. Raj Kumari3 SCC 129 : 1971 AIR234 while deciding the question of quantum of maintenance to be paid the argument raised that deduction not only of income tax but also of house rent electricity charges maintaining a car and the contribution out of salary to the provident fund of the appellant was not allowed. Only deductions towards provident fund which had to be made compulsorily were allowed. The relevant portion of Dr. Kulbhushan Kunwar s casereads as under:— income tax and contributions the expenses for maintaining a car and “19. It was further argued before us that the High Court went wrong in allowing maintenance at 25% of the income of the appellant as found by the Income Tax Department in assessment proceedings under the Income Tax Act. It was contended that not only should a deduction be made of income tax but also of house rent electricity charges the contribution out of salary to the provident fund of the appellant. In our view some of these deductions are not allowed for the purpose of assessment of “free income” as envisaged by the Judicial Income Tax would certainly be deductible and so would contributions to the to be made compulsorily. No deduction is permissible for payment of house rent or electricity charges. The expenses for maintaining the car for the purpose of fund which have Crl. Rev. P. 322 2020 & Crl. Rev. P. 374 2020 appellant s practice as a physician would be deductible only so far as allowed by the income tax authorities i.e. in case the authorities found that it was necessary for the appellant to maintain a car.” 13. In a nutshell a husband cannot be allowed to shirk his responsibility of paying maintenance to his wife minor child and parents by availing loans and paying EMIs thereon which would lead to a reduction of his carry home salary.” 25. Applying the similar ratio to the case in hand I find that though the wife has not disputed deduction of Rs.1 000 p.m. towards NZRE BH NDLS however it is the duty of the Court to see the material available on record and to award just and fair maintenance. In this view of the matter I find that while calculating income of the husband deduction of Rs.1 000 towards NZRE BH NDLS contribution and Rs.4 451 NZRE BH Loan from his gross income of Rs.50 003 cannot be permitted. Hence husband’s net income in hand comes to Rs.44 552 p.m. and rounding it off to Rs.44 560 it has so rightly been arrived at by the trial 26. So far as the plea put forth by the husband that he has to pay rent for his accommodation is concerned it cannot be taken into consideration as he is duty bound to arrange for accommodation for his wife and children who are dependent upon him. Moreover the claim of wife is that husband is staying in the house owned by his mother which is a three storeyed building Crl. Rev. P. 322 2020 & Crl. Rev. P. 374 2020 of which one floor is occupied by her on another floor husband is residing and as per rent agreement placed on record he is paying a sum of Rs.8 000 p.m. towards rent to his mother. During the course of arguments it was also admitted by learned counsel for husband that due to covid 19 husband was living in his mother’s house but he intends to soon move out to a rented accommodation and also alleged that the wife along with children is staying at her brother’s house which is disputed by learned counsel for wife who has placed before this Court a copy of rent agreement which shows that wife is staying in a rented accommodation. 27. Be that as it may. The Hon’ble Supreme Court in Jasbir Kaur Sehgal Vs. Distt. Judge Dehradun & Ors. 7 SCC 7 has observed as under: “8. …..No set formula can be laid for fixing the amount of maintenance. It has in the very nature of things to depend on the facts and circumstances of each case. Some scope for leverage can however be always there. The court has to consider the status of the parties their respective needs the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her In view of the aforementioned observations husband cannot wriggle Crl. Rev. P. 322 2020 & Crl. Rev. P. 374 2020 out of his responsibilities to provide shelter to his wife and minor children. 29. The next question which has to be decided by this Court is as to whether the court below was right in dividing husband’s income into six shares while calculating and granting interim maintenance. It is an admitted fact that mother of husband is receiving pension Rs.17 199 and medical benefits etc. It is also not in dispute that the three storeyed house is in the name of mother of which one floor is occupied by her another by the husband and the third floor is occupied by the brother of the husband. According to wife as per the copy of rent agreement placed on record husband is paying a sum of Rs.8 000 p.m. towards rent to her mother and such might be the position of brother too. And in this way mother is getting additional rental income of approximately Rs.16 000 per month. 31. Even if it is assumed that the rent agreement placed on record might have been manipulated to save income tax then also it cannot be lose sight of that mother is receiving a good amount of pension and is thus financially independent. In addition she is also getting medical benefits from a Government Hospital which is an added advantage towards her financial savings. Another plea put forth by the husband is that he had got employment Crl. Rev. P. 322 2020 & Crl. Rev. P. 374 2020 in Indian Railways on compassionate grounds after demise of his father only because his mother had refused to procure it on medical grounds and tendered “no objection’ in his favour and therefore he is liable to maintain her. The Hon’ble Supreme Court in Bhuwan Mohan Singh Vs. Meena & Ors.6 SCC 353 has observed as under: the provision so “2. Be it ingeminated that Section 125 of the Code of Criminal Procedurewas conceived to ameliorate the agony anguish financial suffering of a woman who left her matrimonial home for the reasons that some suitable arrangements can be made by the court and she can sustain herself and also her children if they are with her. The concept of sustenance does not necessarily mean to lead the life of an animal feel like an unperson to be thrown away from grace and roam for her basic maintenance somewhere else. She is entitled in law to lead a life in the similar manner as she would have lived in the house of her husband. That is where the status and strata come into play and that is where the obligations of the husband in case of a wife become a prominent one. In a proceeding of this nature the husband cannot take subterfuges to deprive her of the benefit of living with dignity. Regard being had to the solemn pledge at the time of marriage and also in consonance with the statutory law that governs the field it is the obligation of the husband to see that the wife does not become a destitute a beggar. A situation is not to be maladroitly created whereunder she is compelled to resign to her fate and think of life “dust unto dust”. It is totally impermissible. In fact it is the sacrosanct duty to render the financial support even if the husband is required to earn money with physical labour if he is able bodied. There is no escape route unless there is an order from the court that the wife is not entitled to get Crl. Rev. P. 322 2020 & Crl. Rev. P. 374 2020 maintenance from the husband on any legally permissible 32. Accordingly I find that the trial court has erred in keeping mother’s share in the income of husband. In this view of the matter taking the income of husband @ Rs.44 560 p.m. and diving it into two shares for him and remaining for his dependants i.e. wife and two children that is to say by making five shares each one is entitled to the share @Rs.8912 JUDGE Crl. Rev. P. 322 2020 & Crl. Rev. P. 374 2020

The Petitioners were released on bail after being apprehended under Sections 341, 323,379, 307, 354(A), 447, and 427/34 IPC: High court of Patna

The petitioners were arrested under Section 341 IPC, “Punishment for wrongful restraint”, section 323, “Punishment for voluntarily causing hurt”, section 379, “Punishment for theft”, section 307, “Attempt to murder”, and sections 354(A), 447 and 427/34 of the Indian Penal Code. This is in connection with Mehsi PS Case No. 150 of 2020 dated 31.05.2020. The high court of Judicature at Patna with honorable Mr. Justice Ahsanuddin Amanullah on the 10th  of August 2021 in the case of Ranjeet Rai and others versus the state of Bihar criminal miscellaneous No. 20673 of 2021, Dr. Alok Kumar Represented as the advocate for the petitioner and Mr. Mukeshwar represented the state of Bihar as the additional Public Prosecutor, the proceedings of the court were held via video conference. The following are the facts of the case, the allegations against the petitioners along with 11 others were that they assaulted the informant and his wife and son and were accused of snatching gold mangalsutra and disrobing her and further the petitioner entered into the house of the informant and ransacked the household articles and took away Rs. 25,000. The counsel for the petitioners submitted that these allegations are general and omnibus against the parties and they are agnates. The petitioners were accused of assaulting the informant, which caused his nose to bleed, disrobed his wife, and snatched her gold mandalsutra. The articles stolen were cosmetic in nature. And only the co-accused was said to have assaulted the informant’s son on his head with a farsa which is serious and the injury on the informant was simple in nature. According to the FIR, an altercation arose when the petitioner was burning garbage and this was disturbing the informants and when they asked for extinguishment the same incident arose. The co-accused also filed for a case Mehsi PS Case No. 138 of 2020 against the informant stating that there was an exchange of hot words and there was a scuffle. The petitioners were involved because they were related to the co-accused by they were not present at the house on the date of the incident and the allegations against the petitioners were all general and omnibus and further petitioners have no criminal antecedent. The APP held that the petitioners were also accused of assault on the son of the informant and the son suffered from grievous injuries on his head. However, the APP has not controverted that the allegations against the petitioners are general and omnibus while as it is specifically against the co-accused. After considering the case’s facts and circumstances, the court held that “the petitioners will be released on bail upon furnishing bail bonds of Rs. 25,000 each with two sureties of the like amount each to the satisfaction of the ACJM 6, in Mehsi PS Case No. 150 of 2020, under Section 438(2) Cr.P.C. 1973 (i) that one of the bailors shall be a close relative of the petitioners, (ii) that the petitioners and the bailors shall execute the bond and give undertaking concerning good behavior of the petitioners and (iii) that they shall co-operate with the Court and police/prosecution. Any violation of the terms and conditions of the bonds or the undertaking or failure to co-operate shall lead to cancellation of their bail bonds. The petition stands disposed of in the aforementioned terms.” Click here to read the judgment

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 206721 Arising Out of PS. Case No. 150 Year 2020 Thana MAHESI District East Champaran Ranjeet Rai @ Ranjeet Kumar aged about 35 years Gender Male Son of Surendra Rai. Shashi Rai aged about 28 years Gender Male Son of Kapil Rai Both are resident of Village Kothiya Hariram PS Mehsi District East Champaran Motihari The State of Bihar ... Petitioner s ... Opposite Party s For the Petitioner s For the State Dr. Alok Kumar Alok Advocate Mr. Mukeshwar Dayal APP CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT 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 petitioners on 28.07.2021 which was allowed 3. Heard Dr. Alok Kumar Alok learned counsel for the petitioners and Mr. Mukeshwar Dayal learned Additional Public Prosecutorfor the State 4. The petitioners apprehend arrest in connection with Mehsi PS Case No. 150 of 2020 dated 31.05.2020 instituted under Sections 341 323 379 307 354(A) 447 and 427 34 of the Indian Penal Code 5. The petitioners along with 11 others are accused of assaulting the informant his wife and son and also of snatching of Patna High Court CR. MISC. No.206721 dt.10 08 2021 gold mangalsutra as also disrobing her and further it is alleged that the accused entered into the house and ransacked the household articles and also took away Rs. 25 000 kept in a box 6. Learned counsel for the petitioners submitted that there is general and omnibus allegation against all persons and the parties are agnates. It was submitted that the allegation against all the persons is that they had assaulted the informant who was injured and started bleeding from his nose and that the wife was disrobed and her gold mangalsutra was snatched and after ransacking the household articles Rs. 25 000 cash was taken away from the box are cosmetic in nature. It was submitted that only against co accused Birendra Rai who is said to have assaulted the son of the informant on the head by farsa which injury is serious the injury on the informant is simple in nature. It was submitted that even as per the FIR an altercation took place with regard to burning of garbage which was disturbing the informant side and upon being asked to extinguish the same the incident occurred. It was submitted that earlier for the same incident Mehsi PS Case No. 138 of 2020 was lodged by co accused Vishwanath Rai against the informant and others in which it has been stated that there was exchange of hot words among both the families and there was scuffle. Further learned Patna High Court CR. MISC. No.206721 dt.10 08 2021 counsel submitted that the petitioners have been implicated only because they are related to co accused Vishwanath Rai as they were not present at the house on the date of occurrence and was working at Muzzafarpur as daily wage labourers. It was submitted that even otherwise the allegation against the petitioners is totally general and omnibus. Learned counsel submitted that the parties have settled the matter among themselves and a compromise petition has also been filed before the Court below in this connection. It was submitted that the petitioners have no criminal 7. Learned APP submitted that there is allegation of assault by the petitioners in which the son of the informant has received grievous injuries on the head. However it was not controverted that the said allegation is specifically against another co accused Birendra Rai and against the petitioners it is general and omnibus in nature 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 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 Patna High Court CR. MISC. No.206721 dt.10 08 2021 learned ACJM 6 East Champaran Motihari in Mehsi PS Case No 1520 subject to the conditions laid down in Section 438(2 of the Code of Criminal Procedure 1973 and further and further i) that one of the bailors shall be a close relative of the petitioners that the petitioners and the bailors shall execute bond and give undertaking with regard to good behaviour of the petitioners andthat they shall co operate with the Court and police prosecution. Any violation of the terms and conditions of the bonds or the undertaking or failure to co operate shall lead to cancellation of their bail bonds 9. 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 10. The petition stands disposed of in the (Ahsanuddin Amanullah J

Bail is a general rule and jail is an exception : Himachal Pradesh High Court

Grant of bail is general rule and putting a person in jail or in a prison or in correction home during trial is an exception and presumption of innocence. The High Court bench consisting of J. Vivek Singh Thakur, in the matter of Harwinder Chauhan Ors. v. State of Himachal Pradesh [Cr.M.P(M) No. 1628 of 2020 along with Cr.M.P.(M) Nos. 2014, 2015, 2017, 2019 and 2020 of 2020], enumerated upon the various principles and relevant factors before granting of bail. A Police station received a telephonic information on 02.06.2020, regarding a person injured in a quarrel  who had been brought for treatment to Community Health Centre (CHC). The statement of the complainant, an eye witness was recorded under Section 154 Cr.PC., wherein she stated that the accused approached her father-in-law (now deceased) and abused and dragged him outside the house where they started beating him. Thereafter an FIR was registered, the injured expired, a Special Investigating Team was constituted and Section 302 IPC was also added in the FIR. The Counsel for the petitioners/accused argued that the complainant party was the aggressor in the present case and substantiated this by stating that the accused had approached the Police Station immediately after the incident and had lodged an FIR. Further that the accused never had an intention to kill the deceased and that thus, the accused should be entitled to bail. The Additional Advocate General submitted that the weapons carried by the accused could easily be visualised by any prudent man as something that could cause death if used to injury someone.

Hig h C o urt of H.P on 10 01 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.M.P.(M) No. 16220 along with Cr.M.P.Nos. 2014 2015 2017 2019 and 20220 Reserved on: 28.12.2020 Date of decision: 6.1.2021 1. Cr.M.P.No. 16220 Harvinder Chauhan. …Petitioner. Versus State of Himachal Pradesh. …Respondent. 2. Cr.M.P.No. 20120 Bindu Ram. …Petitioner. Versus State of Himachal Pradesh. …Respondent. 3. Cr.M.P.No. 20120 Balbir Singh. …Petitioner. Versus State of Himachal Pradesh. …Respondent. 4. Cr.M.P.No. 20120 Amit. …Petitioner. Versus State of Himachal Pradesh. …Respondent. 5. Cr.M.P.No. 20120 Lal Singh. …Petitioner. Versus State of Himachal Pradesh. …Respondent. 6. Cr.M.P.No. 20220 Kuldeep. …Petitioner. Versus State of Himachal Pradesh. …Respondent. Coram The Hon’ble Mr. Justice Vivek Singh Thakur Judge. Whether approved for reporting 1 Yes. For the Petitioner(s): Mr.Deepak Kaushal Advocate through Video Conferencing. Whether the reporters of the local papers may be allowed to see the Judgment Yes Hig h C o urt of H.P on 10 01 HCHP Cr.M.P.No. 16220 & connected matters. 2For the Respondent: Mr.Raju Ram Rahi Deputy Advocate General through Video Conferencing. Vivek Singh Thakur Judge Petitioners herein are accused in case FIR No. 420 dated 2.6.2020 registered under Sections 452 147 148 149 323 325 504 302 IPC in Police Station Shillai District Sirmour H.P. 2. As per status report on 2.6.2020 telephonic information was received in Police Station Shillai from Medical Officer Community Health CentreShillai that a person injured in a quarrel had been brought for treatment in CHC. The said information was reduced into writing as GD No. 004 dated 2.6.2020 at 7:36 A.M. and Head Constable Naveen Kumar along with Constable Gaurav was sent to CHC Shillai who in CHC had recorded statement of complainant Kiran an eye witness under Section 154 Cr.P.C. wherein she had stated that on 31.5.2020 on path approaching cowshed of her Chacha SasurChander Singh cemented concrete was laid to stop the rainy water entering therein and on 2.6.2020 at about 6:30 A.M. when she was working in kitchen accused Rajinder Kuldeep Varinder Amit Balbir Hitesh Harvinder and Lal Singh came to their house and started questioning her father in law Bishanreason for cementing edge of the path whereupon her father in law had replied that it had been done to stop rainy water entering in cowshed of Chander Singh. Thereafter accused person started abusing her father in law and dragged him outside the house and started beating him. At that time Rajinder and Varinder were having iron rod and iron pipe respectively in their hands and others were having dandas in their hands. Upon this her Taya Sasur Partap Hig h C o urt of H.P on 10 01 HCHP Cr.M.P.No. 16220 & connected matters. 3Singh and Chacha Sasur Chander Singh had come on spot to save her father in law Bishan. Accused persons had beaten them also and thereafter all accused left the place and in this incident her father in law Bishan received injuries on his head ear and other parts of body and Taya Sasur Partap Singh in his head and hand and Chacha Sasur Chander Singh in his head. On the basis of statement of complainant recorded at about 9:10 A.M. rucka was prepared and sent to the Police Station for registration of FIR and FIR was registered. 3. It is apparent from record produced by Police that during intervening time accused persons namely Kuldeep Singh and Amit Kumar had approached the Police Station at 8:53 A.M. and submitted an application to the SHO stating therein that on 2.6.2020 Kuldeep Singh on waking up at about 6 6:30 A.M. saw that in ancestral path approaching their house with the help of wooden planks concrete had been laid resulting into closure of their path which earlier was also obstructed by Chander Singh and his brother. So Kuldeep Singh questioned Chander Singh about reason for doing so who at that time was sowing crop of wheat in his field situated adjacent to house of Kuldeep Singh whereupon Chander Singh started arguing with him and hearing noise of altercation his brother Bishan Singh Pratap Singh Swaran Singh and his nephew Dinesh Sunita Kamla Devi Nisha Devi Seema Devi had also come to the spot near his house and started quarreling with him. Dinesh was having danda in his hand and he hit the head of Kuldeep Singh with the same from behind whereupon Amit brother of Kuldeep Singh on hearing noise had come to rescue Kuldeep Singh but hewas also pulled down by Chander Singh and Bishan Singh causing him injuries in his leg and Hig h C o urt of H.P on 10 01 HCHP Cr.M.P.No. 16220 & connected matters. 4body. According to Kuldeep Singh persons namely Nater Singh Giar Singh Bansi Vinod Narender Singh etc. had come on the spot and had rescued them from Chander Singh etc. and in this incident Kuldeep Singh had received injuries on his head and his brother Amit had received injuries in legs and other parts of body. On the basis of this complaint of Kuldeep Singh FIR No. 420 dated 2.6.2020 was registered under Sections 147 148 149 451 323 and 341 IPC. 4. Injured Bishanwas referred from CHC Shillai to Civil Hospital Paonta Sahib. At about 1:30 P.M. telephonic information was received in Police station Shillai from Police Station Paonta Sahib that Bishan Singh had expired whereupon Dy. S.P. Paonta Sahib had constituted a Special Investigating Teamfor investigation of the case and Section 302 IPC was also added in the FIR. 5. During investigation postmortem report of Bishan Singh was obtained wherein it had been opined by the Doctors that most probable cause of death was head injury leading to failure of vital function of brain and cardiac arrest. 6. Blood samples from the spot were also picked up and sent for chemical analysis. MLCs of injured Pratap Singh and Chander Singh were also received from the Medical Officer and injury of Chander Singh was found to be grievous in nature whereas injury of Pratap Singh was simple in nature. On the basis of Medico Legal Certificate of Chander Singh Section 325 IPC was also incorporated in the case FIR. 7. As per status report during investigation it has come that accused persons had entered the house of Bishan Singh with intention Hig h C o urt of H.P on 10 01 HCHP Cr.M.P.No. 16220 & connected matters. 5to attack him to beat him therefore Section 451 IPC was converted into Section 452 IPC. 8. As per status report from the road till last house of the village there is 4 5 feet wide ancestral public path but near cowshed of Chander Singh its width is about 3 feet and the house of petitioners accused is situated 15 20 feet away whereas house of accused persons is situated on the other side of the path opposite to cowshed of complainant party and path on that portion is in the shape of stairs. Earlier this path was kachcha and now through Panchayat under MMGPY Scheme it has been cemented under the supervision of Up Pradhan Diwan Singh Ward Member Kalpana and local resident accused Rajinder Singh on 30.5.2019 with tile flooring. During investigation it has been disclosed by complainant party that rainy water of this path was entering in the cowshed of Chander Singh whereupon Chander Singh etc. to stop the rainy water entering in his cowshed had cemented the side of the path adjacent to the wall of cowshed on 31.5.2020. It is further case of the prosecution that on 2.6.2020 when Shanta wife of Chander Singh was going to cowshed for milking at about 6:30 A.M. then accused Rajinder Singh had met her on the public path near lintel of cowshed and had asked reason for laying concrete on the side of the path along with wall of cowshed whereupon Shanta had explained that it had been done to stop rainy water entering in the cowshed. Thereafter accused persons conspired and dismantled removed the concrete cement laid by Chander Singh and then they went to the house of Bishan Singh and dragged him to the spot near lintel of cowshed and beat him with iron rod and pipe carried by Rajinder Singh and Virender Singh and with dandas carried Hig h C o urt of H.P on 10 01 HCHP Cr.M.P.No. 16220 & connected matters. 6by Kuldeep Singh Balbir Lal Singh Harvinder Amit Kumar and juvenile Hitesh Chaunan. Brothers of Bishan Singh were also beaten by them when they tried to save Bishan Singh from clutches of accused persons. Bishan Singh fell on the lintel unconscious after receiving injuries in his head and Pratap Singh and Chander Singh also received injuries and thereafter accused persons ran away from the spot. 9. Learned counsel for the petitioners submits that instead of accused persons complainant party in present case is aggressor. To substantiate his plea he has stated that accused Kuldeep and Amit had approached the Police Station immediately after the incident and had lodged FIR No. 420 with respect to the incident which is prior to FIR lodged by complainant and therefore FIR lodged by complainant party in present case is an afterthought and counter blast to the FIR lodged by Kuldeep against them. Further he submits that accused persons in present case never had any intention to kill Bishan Singh and as there was no intention to kill Bishan Singh accused persons are entitled for bail for absence of such intention despite the fact that Bishan Singh had succumbed to injuries. It is also canvassed by learned counsel for the petitioners that carrying a danda in hand is not carrying a lethal weapon in hand with intention to kill and further that injuries received by Bishan Singh also reflect that there was no intention to kill as it is reported in the postmortem report that deceased had received three injuries only and there was only one injury in his head because had accused persons have intention to kill Bishan Singh they would have not given single blow on head but would have Hig h C o urt of H.P on 10 01 HCHP Cr.M.P.No. 16220 & connected matters. 7beat him mercilessly and therefore all the petitioners are entitled for bail. 10. It is further submitted that as per prosecution case only Rajinder was having iron rod in his hand and thus even if it is presumed for argument sake only that he was having intention to kill then also it cannot be presumed that all other accused were also having the same intention as that of accused Rajinder who is not one of the petitioners herein. He has further submitted that Harvinder Chauhan is 19 years old and is physically handicapped and further that Lal Singh who is 61 years old has been roped in the case in order to implicate all male members of the family and minor Hitesh has also been implicated despite the fact that all the accused were not present on the spot. 11. Learned Additional Advocate General submits that not only Rajinder but Varinder alias Bindu Ram was also having iron rod in his hand and other accused accompanying them carrying dandas in their hands cannot be said not having any intention to commit murder as any prudent man can easily visualize that by hitting a person with iron road and iron pipe in the head may cause death and therefore according to him all accused were having knowledge of result of their action that by attacking with iron road and iron pipe it may cause death of a victim and therefore all of them have definitely joined Rajinder and Varinder with intention to kill the opposite party. 12. Incident in present case is an admitted fact as cross FIR has also been lodged by petitioner Kuldeep Singh alleging that he and Amit had received injuries. Therefore presence of Kuldeep and Amit on the spot is also an admitted fact. Though FIR No. 43 lodged by Hig h C o urt of H.P on 10 01 HCHP Cr.M.P.No. 16220 & connected matters. 8Kuldeep Singh has been registered at 8:30 A.M. and statement of complainant Kiran under Section 154 Cr.P.C. has been recorded at 9:10 A.M. and FIR No. 420 on the basis of that statement has been registered lateron but recording of statement of complainant and lodging of FIR in consonance thereto at a time later than the registration of FIR No. 420 is inconsequential as complainant party in present case instead of approaching the Police had rushed the victim to the hospital for treatment who was in serious condition and lateron succumbed to his injuries in the hospital at Paonta Sahib. Whereas Kuldeep Singh and Amit Kumar instead of getting any treatment had gone to the Police Station to lodge the complaint prior in time than the complainant party in present case. 13. This Court in case Sandeep Vs. State of Himachal Pradesh reported in 2019Shim. LC 263 on the basis of judgments of the Supreme Court has enumerated various principles and relevant factors evolved in those pronouncements to be taken into consideration and to be kept in mind at the time of consideration of bail application which reads as under: “13. Some of the principles evolved in various pronouncements of the apex Court are as under: 1. Grant of bail is general rule and putting a person in jail or in a prison or in correction home during trial is an exception and presumption of innocence i.e. person is believed to be innocent until found guilty is fundamental postulate of criminal jurisprudence. But these principles are not applicable in cases where there is reverse onus and or statutory presumption with regard to commission of offence. Such cases are to be dealt with differently keeping in view statutory presumption and reverse onus provided under the relevant statute. 3 SCC 22 para 1) Hig h C o urt of H.P on 10 01 HCHP Cr.M.P.No. 16220 & connected matters. 9 2. While making a general statement of law that the accused is innocent till proved guilty the statutory provisions of relevant Act like Section 29 of the POCSO Act have to be taken into consideration which provides for presumption as to commission of any offence under Sections 3 5 7 and 9 of the Act. 2 SCC 178 para 22) 3. Each criminal case presents its own peculiar factual scenario and therefore certain grounds peculiar to a particular case may have to be taken into account by the Court. The Court has only to opine as to whether there is prima facie case against the accused. The Court must not undertake meticulous examination of the evidence collected by the police and comment upon the same. Such assessment of evidence and premature comments are likely to deprive the accused of a fair trial.12 SCC 180) 4. A bail application is not to be entertained on the basis of certain observations made in a different context. There has to be application of mind and appreciation of the factual score and understanding of the pronouncements in the field.5 SCC 406 para 14) 5. It has also to be kept in mind that for the purpose of granting bail the legislature has used the words “reasonable grounds for believing” instead of “the evidence” which means the court dealing with the grant of bail can only satisfy itself as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected at this stage to have the evidence establishing the guilt of the accused beyond reasonable doubt. 5 SCC 406 para 16 CBI versus Vijay Sai Reddy 7 SCC 452) Hig h C o urt of H.P on 10 01 HCHP Cr.M.P.No. 16220 & connected matters. 106. The Courts are not oblivious of the fact that the liberty is a priceless treasure for a human being. It is founded on the bedrock of the constitutional right and accentuated further on human rights principle. It is basically a natural right. In fact some regard it as the grammar of life. No one would like to lose his liberty or barter it for all the wealth of the world. People from centuries have fought for liberty for absence of liberty causes sense of emptiness. The sanctity of liberty is the fulcrum of any civilised society. It is a cardinal value on which the civilisation rests. It cannot be allowed to be paralysed and immobilised. Deprivation of liberty of a person has enormous impact on his mind as well as body. A democratic body polity which is wedded to rule of law anxiously guards liberty. But a pregnant and significant one the liberty of an individual is not absolute. society by its collective wisdom through process of law can withdraw the liberty that it has sanctioned to an individual when an individual becomes a danger to the collective and to the societal order. Accent on individual liberty cannot be pyramided to that extent which would bring chaos and anarchy to a society. A society expects responsibility and accountability from its members and it desires that the citizens should obey the law respecting it as a cherished social norm. No individual can make an attempt to create a concavity in the stem of social stream. It is impermissible. Therefore when an individual behaves in a disharmonious manner ushering in the disorderly things which the society disapproves the legal consequences are bound to follow. At that stage the court has a duty. It cannot abandon its sacrosanct obligation and pass an order at its own whim or caprice. It has to be guided by the established parameters of law.6 SCC 508 para 16 Rakesh Ranjan Yadav versus CBI 1 SCC 70 para 16 Masroor versus State of U.P. 14 SCC 286 para 15 Ash Mohammad versus Shiv Raj Singh alias Lalla Babu and another 9 SCC 446 paras 10 & 25 Chandrakeshwar Prasad alias Chandu Babu versus State of Bihar and another 9 SCC 443 paras 10 11) Hig h C o urt of H.P on 10 01 HCHP Cr.M.P.No. 16220 & connected matters. 117. Detailed examination of evidence and elaborate documentation of merits of the case are to be avoided.6 SCC 338 para 8 Kalyan Chandra Sarkar v. Rajesh Ranjan7 SCC 528:Vinod Bhandari versus State of Madhya Pradesh 15 SCC 389 para 13 Lt. Col. Prasad Shrikant Purohit versus State of Maharashtra 11 SCC 458 para 2.) Consideration of details of the evidence is not a relevant consideration. While it is necessary to consider the prima facie case an exhaustive exploration of the merits of the case should be avoided by refraining from considering the merits of material evidence collected by the prosecution. and another 12 SCC 129 para 15 and Criminal Appeal No. 11718 titled The State of Orissa versus Mahimananda Mishra decided on 18th September 2018) 8. It is not necessary to go into the correctness or otherwise of the allegations made against the accused as this is a subject matter to be dealt with by the trial Judge. 3 SCC 22 para 16) 9. Where prima facie involvement of the accused is apparent material contradictions in the charge sheet are required to be tested at the time of trial and not at the time of consideration of grant of bail.11 SCC 458 para 28) 10. Probability or improbability of the prosecution version has to be judged based on the material available to the court at the time when bail is considered and not on the basis of discrepancies.and another 12 SCC 129 para 21) 11. The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course and reasons for grant of bail in cases involving serious offences should be given.7 SCC 528:Dipak Shubhashchandra Mehta versus Central Bureau of Hig h C o urt of H.P on 10 01 HCHP Cr.M.P.No. 16220 & connected matters. 12Investigation and another 4 SCC 134 para 32 Vinod Bhandari versus State of Madhya Pradesh 15 SCC 389 para13 Lt. Col. Prasad Shrikant Purohit versus State of Maharashtra 11 SCC 458 para 29) 12. At the time of assigning reasons in order to grant refuse bail there should not be discussion of merits and demerits of the evidence. 2 SCC 178 para 15) 13. Giving reasons is different from discussing evidence merits and demerits.6 SCC 338 para 8 State of Bihar versus Rajballav Prasad alias Rajballav Prasad Yadav alias Rajballabh Yadav 2 SCC 178 para 15) 14. Under Section 439 CrPC the Sessions Court and the High Court has concurrent jurisdiction to grant bail. Therefore an application filed before the High Court under Section 439 CPC after rejection of an application filed before Sessions Court under the said Section is definitely a successive application and is not a revision or appeal against rejection of bail application by the Sessions Court. 15. An accused has a right to make successive applications for grant of bail the court entertaining such subsequent bail applications has a duty to consider the reasons and grounds on which the earlier bail applications were rejected. In such cases the court also has a duty to record the fresh grounds which persuade it to take a view different from the one taken in the earlier applications.11 SCC 458 para 30) 16. The period of incarceration by itself would not entitle the accused to be enlarged on bail. and another 12 SCC 129 para 24 Gobarbhai Naranbhai Singala versus State of Gujarat3 SCC 775 para 22 and Ram Govind Hig h C o urt of H.P on 10 01 HCHP Cr.M.P.No. 16220 & connected matters. 13Upadhyay versus Sudarshan Singh 3 SCC 598 para 9) 17. Filing of charge sheet establishes that after due investigation the investigating agency having found materials has placed the charge sheet for trial of the accused persons.5 SCC 406 para 12). 14. The relevant factors to be kept in mind at the time of consideration of bail applications are as follows: Satisfaction of the Court in support of the charge as to whether there is any prima facie or reasonable ground to believe that the accused had committed the offence Nature and gravity of the accusation charge Seriousness of the offence crime and severity of the punishment in the event of conviction Nature and character of supportive evidence Character conduct behaviour means position and standing of the accused The Courts must evaluate the entire available material against the accused very carefully circumstances which are peculiar to the accused and the Court must also clearly comprehend the exact role of the accused in the case The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern Position and status of accused with reference to the victim and witnesses to assess the impact that release of accused may make on the prosecution witnesses and reasonable apprehension of the witnesses being influenced or tampered with or apprehension of threat to the complainant witnesses and possibility of obstructing the course of justice The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence likelihood and possibility of the accused s likelihood to repeat similar or the other offences A reasonable possibility of the presence of the accused not being secured at the trial and danger of the accused absconding or fleeing from justice Hig h C o urt of H.P on 10 01 HCHP Cr.M.P.No. 16220 & connected matters. 14Impact of grant of bail on the society and danger of course of justice being thwarted by grant of bail affecting the larger interest of the public or the State While considering the prayer for grant of anticipatory bail a balance has to be struck between two factors namely no prejudice should be caused to the free fair and full investigation and there should be prevention of harassment humiliation and unjustified detention of the accused Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people Whether the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution in the normal course of events the accused is entitled to an order of bail No doubt this list is not exhaustive. There are no hard and fast rules regarding grant or refusal of bail each case has to be considered on its own merits. The matter always calls for judicious exercise of discretion by the Court. (1978) 1 SCC 118 Gurbaksh Singh Sibbia versus State of Punjab 2 SCC 565 Prahlad Singh Bhati v. State(2001) 4 SCC 280 Puran v. Rambilas6 SCC 338 Ram Govind Upadhyay v. Sudarshan Singh3 SCC 598 Chaman Lal versus State of U.P. and another 7 SCC 525 Kalyan Chandra Sarkar v. Rajesh Ranjan7 SCC 528 para 11) Jayendra Saraswathi Swamigal v. State of T.N. 2 SCC 13 para 16) State of U.P. v. Amarmani Tripathi 8 SCC 21 para 18 Prashanta Kumar Sarkar versus Ashis Chatterjee and another 14 SCC 496 Siddharam Satlingappa Mhetre versus State of Maharashtra and others 1 SCC 694 Prakash Kadam versus Ramprasad Vishwanath Gupta 6 SCC 189 Kanwar Singh Meena versus State of Rajasthan and another 12 SCC 180 Anil Kumar Yadav versus Stateand another 12 SCC 129 The State of Orissa versus Mahimananda Mishra 10 SCC 516”. 14. As per statement of complainant which was made immediately after the incident in the hospital co accused Rajinder and petitioner Bindu Ram alias Varinder were having iron rod and iron pipe in their hands and as a matter of fact Rejoinder @ Raju has not Hig h C o urt of H.P on 10 01 HCHP Cr.M.P.No. 16220 & connected matters. 15preferred any bail application in this Court. Presence of Kuldeep Singh and Amit Kumar on the spot is also substantiated by contents of FIR No. 420. 15. Petitioner Harvinder is a teenager and petitoner Lal Singh is 61 years old senior citizen. Whereas petitioner Balbir Singh has been alleged as a person present on the spot along with other accused persons. 16. Considering the role of accused persons and weapon used by them as has come on record in the statement of complainant content and effect of cross FIR and also nature and gravity of offence impact thereof on the society and period of detention of the petitioners I am of the opinion that in case of petitioners Kuldeep Singh in Cr.M.P.No. 20220 Bindu Ram alias Virender in Cr.M.P.No. 20120 and Amit Kumar in Cr.M.P.No. 20120 balance of public interest is heavier than personal interest and thus they are not entitled for bail at this stage. Whereas for their age as well as role attributed in the complaint petitioners Lal Singh in Cr.M.P.No. 20120 Balbir Singh in Cr.M.P.No. 20120 and Harvinder Chauhan in Cr.M.P.No. 16220 can be treated differently and may be enlarged on bail. 17. In view of above Cr.M.P.Nos. 2020 2014 and 20120 are dismissed. 18. Petitioners in Cr.M.P.Nos. 2019 2015 and 16220 are ordered to be enlarged on bail on furnishing personal bonds in the sum of `50 000 each with one surety each in the like amount to the satisfaction of trial Court within two weeks from today and upon such further conditions as may be deemed fit and proper by the trial Hig h C o urt of H.P on 10 01 HCHP Cr.M.P.No. 16220 & connected matters. 16Court including the conditions enumerated hereinafter so as to ensure the presence of the petitioners at the time of trial: That the petitioners shall make themselves available to the police or any other Investigating Agency or Court in the present case as and when required that the petitioners shall not directly or indirectly make any inducement threat or promise to any person acquainted with the facts of the case so as to dissuade him her from disclosing such facts to Court or to any police officer or tamper with the evidence. They shall not in any manner try to overawe or influence or intimidate the prosecution witnesses that the petitioners shall not obstruct the smooth progress of the investigation trial that the petitioners shall not commit the offence similar to the offence to which they are accused or suspected that the petitioners shall not misuse their liberty in any manner that the petitioners shall not jump over the bail that they shall keep on informing about the change in address landline number and or mobile number if any for their availability to Police and or during trial they shall not leave India without permission of the Court. 19. It will be open to the prosecution to apply for imposing and or to the trial Court to impose any other condition on the petitioners enlarged on bail as deemed necessary in the facts and circumstances of the case and in the interest of justice and thereupon it will also be open to the trial Court to impose any other or further condition on the petitioners as it may deem necessary in the interest of justice. 20. In case the petitioners enlarged on bail violate any conditions imposed upon them their bail shall be liable to be cancelled. In such eventuality prosecution may approach the competent Court of law for cancellation of bail in accordance with law. Hig h C o urt of H.P on 10 01 HCHP Cr.M.P.No. 16220 & connected matters. 1721. Learned trial Court is directed to comply with the directions issued by the High Court vide communication No.HHC.VIG. Misc. Instructions 93 IV.7139 dated 18.03.2013. 22. Observations made in this petition hereinbefore shall not affect the merits of the case in any manner and are strictly confined for the disposal of the bail applications. 23. The petitioners enlarged on bail are permitted to produce copy of order downloaded from the High Court website and the trial Court shall not insist for certified copy of the order however he may verify the order from the High Court website or otherwise. The petitions stand disposed of in the aforesaid terms. 6th January 2020 Judge.