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Conducting synchronized trades with prior connection shows the malaise intention of traders -THE SECURITY AND EXCHANGE BOARD OF INDIA

Conducting synchronized trades with prior connection shows the malaise intention of traders -THE SECURITY AND EXCHANGE BOARD OF INDIA The proceedings conducted from the show cause notice issued against the Fin quest Securities Pvt. Limited(NOTICEE) is a registered stock broker and various allegations were made against the noticee and mentioned in the scn and also mentioned why proceeding should not be conducted against the noticee under regulation 28(3) of SEBI regulations ,2008 the proceedings are conducted on deciding the responses made by the noticee and are conducted by ANANTA BARUA WHOLE TIME MEMBER  in application no. WTM/AB/IVD/ID5/14721/2021-22 The enquiry report founded that the noticee had violated Section 12A(a),(b) and (c) of the Securities and Exchange Board of India Act, 1992 and Regulations 3(a), 3(b), 3(c), 3(d), 4(1) and 4(2) (a) of SEBI Regulations, 2003 and clause A (2) of the code of conduct specified under Schedule  II read with regulation 7/9 of SEBI Brokers regulation ,1992 on the basis that the noticee had  facilitated its clients in creation of artificial volumes by indulging in synchronized trades in the scrip of Asian Granito India Limited . during investigation it was found that noticee had group of 16 connected/ related entities and out of these 6 companies had repetitively executed synchronized trades in the scrip of the company and created misleading appearance of trading in the scrip of the company without any intention of change in ownership of the security. the noticee was alleged to be connected with the trading group and also of fraudulent trades and creating misleading appearance. The further investigation showed that 6 Bharat Patel Group entities executed synchronized trades within the group for 21,42,281 shares in 8 trading days and the noticee was the broker it creates a strong doubt that these trades were synchronized, were executed by related clients and were  repetitive in nature and Repetitive matching of trades between connected entities through a connected broker cannot be a mere coincidence, nor can the same be executed without the broker facilitating the synchronized trade and  these  synchronized trades create a misleading appearance of trading in the market the authority relied on Appeal no. 2 of 2004 in  Ketan Parekh v/s. SEBI . The observations make it clear that Bharat Patel Group has created an artificial and misleading appearance of trade by conducting transfer of ownership of shares within the connected entities and the trading pattern shows a pre-meditated scheme of synchronized trading. The orders by the buyer and the seller are placed with the precision of a second and the order price and order quantity matches to the last decimal. this makes the notice liable of indulging  in synchronized trades on behalf of its clients in the scrip of AGIL during the investigation period and in has violation of  Section 12A (a), (b) and (c) of the SEBI Act, 1992 read with Regulations 3 (a), (b), (c), (d), 4 (1) and 4 (2) (a) of the PFUTP Regulation, 2003 and clause A (2) of the code of conduct specified under Schedule II read with regulation 7/9 of the Brokers Regulations.

Final Order against Finquest Securities Pvt. Limited WTM AB IVD ID5 14721 2021 22 SECURITIES AND EXCHANGE BOARD OF INDIA FINAL ORDER Under Section 12(3) of Securities and Exchange Board of India Act 1992 read with Regulations 27 of Securities and Exchange Board of India Regulations 2008 In respect of: Sr. No. Name of the Intermediary Registration Number Finquest Securities Pvt. Limited INZ000268435 PAN: AABCB7028F) Previous registration numbers: INB231236531INB011236537In the matter of Asian Granito India Limited The present proceedings have emanated from a show cause notice dated August 25 2020 issued by Securities and Exchange Board of India to Finquest Securities Pvt. Limitedand BSE Ltd. submitted by the Designated Authority hereinafter referred to as “DA”) and called upon the Noticee to show cause as to why action as recommended by the DA including passing of appropriate direction should not be taken against them in terms of the erstwhile Regulation 28 (since omitted) of the SEBI Regulations 2008 hereinafter referred to as “Intermediaries Regulations”). The DA submitted the ER after giving an opportunity of hearing to the Noticee and considering the reply submitted by the Noticee and other material available on record. The DA recommended that the certificate of registration of the Noticee as a stock broker may be a suspended for a period of 6 months. The ER found that Noticee had violated Section 12A(a)andof the Securities and Exchange Board of India Act 1992read with Regulations 3(a) 3(b) 3(c) 3(d) 4(1) and 4(2) of SEBI Prohibition of Fraudulent and Unfair Trading Practices relating to Securities Market) Regulations 2003 as well as clause Aof the code of conduct specified under Schedule II read with regulation 7 9 of SEBI Regulations 1992were identified. It was observed that 6 Bharat Patel Group repetitively executed synchronised trades in the scrip of the company during the period December 15 2011 to October 09 2014 and thus created misleading appearance of trading in the scrip of the company without any intention of change in ownership of the security. 4.3 It was also observed that Finquesthad executed the trades of these clients as a broker. The Noticee was also alleged to be connected to the Bharat Patel Group. In view of the same it was alleged that the Noticee facilitated their fraudulent trades and created misleading appearance of trading in the scrip. After submission of the ER an SCN was issued to the Noticee on August 25 2020. After the issuance of the SCN a personal hearing was scheduled for June 15 2021. The Noticee did not appear for the hearing. In the interest of justice the Noticee was granted another opportunity for hearing on September 21 2021. On the said date the Noticee requested for an adjournment and the same was acceded to. Accordingly another hearing was scheduled for October 11 2021. Though the Noticee filed written submissions dated October 7 2021 it neither appeared for the hearing nor sought any adjournment. Hence the hearing for the Noticee was closed due to non appearance. The submissions of the Noticee in its reply dated October 7 2011 inter alia are as follows: the SCN is liable to be struck down on account of inordinate delay in issuing the same Final Order against Finquest Securities Pvt. Limited the Noticee cannot now be expected to furnish reasoning for its clients’ trades the Noticee denies having violated any provisions of any law the impugned trades are miniscule compared to their total turnover the trades were executed for and on behalf of respective clients and upon their instructions vi. most of the impugned trades were in excess of 0.5% of the equity capital of AGIL and ought to have been displayed on the bulk deal the impugned trades were reported to the stock exchanges and window of the stock exchange disclosed on their websites the trades were executed at market price of the scrip and delivery was made to the buyer and hence beneficial ownership was there is no allegation of price manipulation and no harm was there was no drastic or unrealistic movement in the price or volume transferred caused to anyone in the scrip of AGIL the 26 impugned trades were all on different days spanning between February 10 2012 to March 11 2014 the alleged connection between the Noticee and the Bharat Patel Group is incorrect and there is no bar on trading for clients who the undisputed connection alleged therein arises merely because of the broker client relation and no incidental connection shall be may be connected drawn upon though it is alleged that there was a misleading appearance of trading there are no investor grievance and the recommendation of suspension of six months is draconian. Final Order against Finquest Securities Pvt. Limited Consideration of replies and findings: I have taken into consideration the ER and the reply of the Noticee. At the outset I note that the Noticee has submitted that the proceedings suffer from inordinate delay. The Noticee has stated that as per Regulation 18 of SEBI Stock Broker) Regulations 1992 brokers are required to preserve books of accounts and other records for a minimum of five years. It has been stated that since the SCN was issued more than 5 years after the last of the impugned 26 trades tremendous prejudice has been caused to the Noticee. In this regard I note that the regulation does not imply that an SCN cannot be issued for violations committed more than five years prior to the date of issuance of the SCN especially when all supporting documents relied upon in the SCN have been provided to the noticees therein. I further note that SEBI initiated investigation in 2015 for the period 2011 to 2014 with respect to involvement of Bharat Patel group which followed the modus operandi of carrying out bulk deals amongst the group and subsequently reversing them in a few days within the group on receipt of information from stock exchanges. As per information provided by stock exchanges similar modus operandi was found in 17 scrips which were all taken together for investigation. Investigation involved seeking information such as trade and order logs from BSE and NSE in respect of these scrips analysis of the trade and order logs detailed Self trade analysis LTP Analysis Broker and Client Concentration Analysis and finding connections between various entities. Thus various dots had to be connected. I also note that during that time SEBI had also received reference from the Income Tax Department that certain entities appeared to have manipulated the price of a large number of scrips as part of a larger scheme linked to the long term capital gains scam and these were also taken up for investigation. The investigation in the extant matter was completed Final Order against Finquest Securities Pvt. Limited in March 2019. Thereafter the first SCN in the matter was issued in September 2019. As noted above the DA’s Report was submitted on July 27 2020. Thereafter the post enquiry SCN was sent to the Noticee on August 25 2020. Due to restrictions placed because of the COVID 19 pandemic the SCN was sent through email. However since no reply was received a reminder letter to file reply was also sent on March 8 2021 which was delivered to the Noticee. Despite the same no reply was received form the Noticee. In order to proceed in the matter a hearing was scheduled for June 15 2021. Once again though the hearing notice was delivered no response was received and the Noticee did not appear for the hearing. As noted above thereafter opportunities for hearing were granted on two occasions being September 21 2021 and October 11 2021. While the Noticee filed a reply dated October 7 2021 it did not appear for the hearing. Further I note that in its reply the Noticee has merely expressed their inability to defend itself without specifically pointing out the prejudice if any that has been caused to it due to the purported delay in the issuance of the SCN. The Noticee has failed to state as to what record document evidence that could not be accessed obtained because of the alleged passage of time which has prejudiced their ability to defend themselves. I note that the Noticee was inter alia provided with the following documents along with the SCN: a) details of the entire trade log with respect to the impugned trades b) the details of Bharat Patel Group along with basis of connection c) details of price and volume of AGIL on NSE and BSE. I also note that the Noticee has in its possession details of total trade volume of these clients which they have produced alongwith their reply filed before the DA. Thus looking at the material available at the disposal of the Noticee I find that the Noticee has been provided with and also they have in its possession all the material that would have been abundantly adequate to facilitate recollection of events and thereby enabling it to form a definite defense to the charges in the SCN. On the other hand I note that SEBI Act 1992 and the regulations framed thereunder have got a larger public purpose in the form of investor protection. Final Order against Finquest Securities Pvt. Limited Having this objective in mind legislature itself has not put any limitation period on initiating action. This purposes would stand defeated if the manipulators are allowed to go scot free just because of time taken in initiating action against them. The manipulators operate in a clandestine and sophisticated manner and detection of such violations is not easy. In view of the above facts I find that no prejudice has been caused upon the Noticee nor has the Noticee been able to make out a case about the prejudice due to the purported delay in the issue of the SCN. Further I note that while delay cannot be a ground for exoneration for the violations committed however the same shall be taken into account while deciding the quantum of penalty if any to be imposed after considering the reply of the Noticee. Proceeding further I note that the price and volume movement of the scrip of AGIL at BSE and NSE prior to during and after Investigation Periodis as follows: BSE: i. Details of Price and movement at BSE Table 1 Total traded shares Daily Avg.) 76 88015 Sep 2011 to 14 Dec 2011 15 Dec 2011 to 09 Oct 2014 10 Oct 2014 to09 Jan 2015 (10 Oct 2011) 6 680 33 10 921 (02 Aug 2013) 3 092 29 835 901 483 1 15 50 658 16 986) (18 Nov 2014) 57 699 28 018 6 999 370 788 46 22 148Final Order against Finquest Securities Pvt. Limited ii. Patch wise price and volume movement: Table 2 Patch 1 405 days) 15 Dec 2011 to 20 Aug 2013 (28 Feb 2012) 3 092 901 483 Patch 2 273 days) 21 Aug 2013 to 09 Oct 2014 (11 Sep 2014) 29 835 751 519 Total traded shares52 67 596 19 225) iii. Details of price & volume movement at NSE: Table 3 15 Sep 2011 to 14 Dec 2011 15 Dec 2011 to 09 Oct 2014 10 Oct 2014 to 09 Jan 2015 (26 Oct 2011) 3 571 304 30 330 (02 Aug 2013) 12 654 90 921 902 836 (17 Oct 2014) 71 547 56 949 10 772 336 563 Total traded Daily Avg.) 1 03 961 1 824) 1 06 38 660 16 317) 53 81 793 88 226) Final Order against Finquest Securities Pvt. Limited iv. Patch wise price and volume movement: Table 4 Patch 1 405 days) 15 Dec 2011 to 20 Aug 2013 (28 Feb 2012) 12 654 522 902 836 Patch 2 273 days) 21 Aug 2013 to 09 Oct 2014 (11 Sep 2014) 339 90 921 327 475 Total traded shares66 69 201 23 990) Details of the “Bharat Patel Group” and the basis of connection were provided as Annexure to the SCN. The list of said 16 entities forming Bharat Patel Group is as under: Table 5 S.No Entity Name Bharat Jayantilal PatelRuchit Bharat PatelMinal Bharat PatelHardik Bharat PatelPrashant Jayantilal PatelPankaj Jayantilal PatelVanraj Vinod Shah Ajay Kumar Banwarilal Kejriwal Pat Financial Consultants Pvt. Ltd.Acira Consultancy Pvt. Ltd.Final Order against Finquest Securities Pvt. Limited 11 Gandiv Investment Pvt. Ltd.Hridaynath Consultancy Pvt. Ltd.Pranav Holdings Pvt. Ltd.Fidelity Multitrade Pvt. Ltd.15 Moneybee Realty Pvt. Ltd.Pasha Finance Pvt. Ltd.Analysis of Bharat Patel Group s contribution to trading volume during the investigation period: Trading of Bharat Patel Group. Summary of trading by the Bharat Patel Group during the investigation period is tabulated as follows: Name of Entity Gross Buy Gross Sell Gross Buy Table 6 of Buy to of Sell to of Buy to of Sell to Pasha Finance Pvt. Ltd. Hridaynath Consultancy Pvt. Ltd. Bharat Jayantilal Patel 0.37 1076667 Pat Financial Consultants Pvt. Minal Bharat Patel Gandiv Investment Pvt. Ltd. Pranav Holdings Pvt. Ltd. Ruchit Bharat Patel Pankaj Jayantilal Patel 26.94 2223700 Final Order against Finquest Securities Pvt. Limited Bharat Patel Group’s contribution to synchronized trades at BSE during the Investigation Period is as under: Table 7 Buy Qty of the Sell Qty of the traded qty traded qty by the Trades as of total traded qty among the as % of Sum of LTP sync trades 2.65 Bharat Patel Group purchased 33 44 359 shares and sold 45 64 055 sharesduring the Investigation Period at BSE and hence was a net seller of 12 19 696 shares. The entity wise details of synchronized trades executed by Bharat Patel Group are as under: Buyer Name Seller Name Table 8 Pasha Finance Pvt. Ltd Bharat Jayantilal Patel Pat Financial Consultant Pvt. Ltd Pat Financial Consultant Pvt. Ltd Pat Financial Consultant Pvt. Ltd Ruchit Bharat Patel Ruchit Bharat Patel Hridaynath Consultancy Pvt Limited Hridaynath Consultancy Pvt Limited Bharat Jayantilal Patel Minal Bharat Patel Bharat Jayantilal Patel of Sync. Vol. to Mkt. No. of No of It is noted that on BSE 6 Bharat Patel Group entitiesexecuted synchronised trades within the group for 21 42 281 shares in 26 trades over 8 trading days. Finquest Securities Pvt. Ltd. Noticee) was the broker and counterparty broker for the abovementioned 6 Final Order against Finquest Securities Pvt. Limited clients for 13 out of 26 synchronized trades at BSE for a quantity of 12 27 197 sharesduring the investigation period. All the buy and sell synchronized trades were executed from terminal ID 4 and 6 of the Noticee. For remaining trades Noticee was either the broker or counterparty broker. I note that the Noticee has submitted that most of the impugned trades were in excess of 0.5% of the equity capital of AGIL and hence were ‘bulk trades’. The Noticee has stated that these trades were expressly and separately reported to the Stock Exchanges and were even disclosed on their website. I note that mere reporting or disclosure of bulk trades does not imply that these trades could not be illegal synchronized trades. Disclosure of bulk trades is dependent on the quantity of shares traded. However upon investigation it was observed that these trades were synchronized were executed by related clients and repetitive in nature as discussed in para 20 below. In view of the same I do not find merit in the submission made by the Noticee. In this regard I note that the Noticee has stated he had carried out the trades as per the instructions of his clients and that there was no relation between him and the alleged Bharat Patel Group. However I am unable to accept the contention of the Noticee since Hardik Bharat Patel and Minal Bharat Patel who were part of the Bharat Patel Group are directors of Noticee. It was also noted that Ruchit Bharat Patel Hardik Bharat Patel and Minal Bharat Patel were shareholders in Finquest during the period of investigation. Moreover synchronised trades for 21 42 281 shares of AGIL were executed where the Noticee was a broker and or counterparty broker. Out of these in respect of synchronized trades for 12 27 197 shares the Noticee was the broker on both buy and sell trades. Repetitive matching of trades between connected entities through a connected broker cannot be a mere coincidence nor can the same be executed without the broker facilitating the synchronized trades. The gist of Final Order against Finquest Securities Pvt. Limited the connection between the 6 clients who traded on BSE as given in the ER is tabulated as below: Table 9 Sr. No. Entity Name Basis of Connection Bharat Jayantilal PatelMinal Bharat Patel Minal) Ruchit Bharat Patel Pat Financial Consultants Pvt. Ltd.1. Director in Fidelity Multitrade Ltd. Finquest Financial Solutions Pvt. Ltd. Pranav Holdings Pvt. Ltd. Pasha Finance Pvt. Ltd. and PAT Financial Consultants Ltd. 2. Fund movement with Prashant Jayantilal Patel Hardik Bharat Patel Ruchit Bharat Patel Minal Bharat Patel Vanraj Vinod Shah PAT Financial Consultants Pvt Ltd and Pranav Holdings Pvt Ltd. 1. Director in Finquest Securities Pvt. Ltd.Fidelity Multitrade Pvt. Ltd. Pasha Finance Pvt. Ltd.& Finquest Financial Solutions Pvt. Ltd. 2. Fund movement with Bharat Jayantilal Patel PAT Financial Consultants Pvt. Ltd. 1. Director in Fidelity Multitrade Pvt. Ltd. & Pat Financial Consultants Pvt. Ltd. 2. Fund movement with Bharat Jayantilal Patel 1. Bharat Jayantilal Patel Hardik Bharat Patel Ruchit Bharat Patel and Prashant Jayantilal Patel are the 2. Fund movement with Bharat Jayantilal Patel Minal Patel Hardik Patel Acira Consultancy Pvt Ltd. Moneybee Realty Pvt Ltd and Hridaynath Consultancy Pvt Ltd Pasha Finance Pvt. Ltd.1. Bharat Jayantilal Patel and Minal Bharat Patel are Consultancy Pvt. Ltd.1.Fund movement with PAT Financial Consultants Pvt. The Noticee has also stated that there was no malafide intent and that the trades were executed as per the directions of its clients. I have perused the Annexure to the SCNwhich contained details of alleged synchronized trades executed by the clients of the Noticee. Details of the 26 Final Order against Finquest Securities Pvt. Limited trades where the Noticee was either the broker the counterparty broker or both as culled out from the said trade and order log are given below: Table 10 10 02 2012 PAT FINQUEST 102000 MINAL 14 01 2013 RUCHIT FINQUEST 100000 BHARAT FINQUEST FINQUEST 12 02 2013 PASHA 15 03 2013 BHARAT FINQUEST 05 02 2014 PAT FINQUEST 06 02 2014 PAT FINQUEST 06 02 2014 PAT FINQUEST 06 02 2014 PAT FINQUEST 06 02 2014 PAT FINQUEST 06 02 2014 PAT FINQUEST 06 02 2014 PAT FINQUEST 06 02 2014 PAT FINQUEST 06 02 2014 PAT FINQUEST 06 02 2014 PAT FINQUEST 06 02 2014 PAT FINQUEST FINQUEST FINQUEST FINQUEST FINQUEST FINQUEST FINQUEST FINQUEST FINQUEST FINQUEST FINQUEST FINQUEST FINQUEST 894798 RUCHIT NATH NATH NATH NATH NATH NATH NATH NATH NATH NATH NATH NATH 10 03 2014 PAT FINQUEST 110000 BHARAT 10 03 2014 PAT FINQUEST 110000 BHARAT 10 03 2014 PAT FINQUEST 110000 BHARAT 10 03 2014 PAT FINQUEST 110000 BHARAT 10 03 2014 PAT FINQUEST 110000 BHARAT Final Order against Finquest Securities Pvt. Limited 10 03 2014 PAT FINQUEST 110000 BHARAT 10 03 2014 PAT FINQUEST 110000 BHARAT 10 03 2014 PAT FINQUEST 110000 BHARAT 10 03 2014 PAT FINQUEST 110000 BHARAT 10 03 2014 PAT FINQUEST 110000 BHARAT 11 03 2014 PAT FINQUEST 104662 BHARAT Of the above for 13 synchronized trades the Noticee was both the broker as well as the counterparty broker. Details of the same are as follows: 10 02 2012 PAT FINQUEST 102000 MINAL FINQUEST 12 02 2013 PASHA FINQUEST FINQUEST Table 11 894798 RUCHIT NATH NATH NATH NATH NATH NATH NATH NATH NATH FINQUEST FINQUEST FINQUEST FINQUEST FINQUEST FINQUEST FINQUEST FINQUEST FINQUEST 05 02 2014 PAT FINQUEST 06 02 2014 PAT FINQUEST 06 02 2014 PAT FINQUEST 06 02 2014 PAT FINQUEST 06 02 2014 PAT FINQUEST 06 02 2014 PAT FINQUEST 06 02 2014 PAT FINQUEST 06 02 2014 PAT FINQUEST 06 02 2014 PAT FINQUEST TRADE 06 02 2014 PAT FINQUEST FINQUEST 06 02 2014 PAT FINQUEST FINQUEST Final Order against Finquest Securities Pvt. Limited NATH NATH From the above Tables I find that the orders for the alleged synchronised trades were placed by the buyer and the seller at the same time upto the precision of the same second and the order quantity and the order price for each of the 26 trades on BSE were matching. I note that the order price and order quantity for each of the impugned trades also matches with miraculous precision. This is more than a mere co incidence. The Noticee has denied that the trades were being synchronized on purpose. I note that when connected entities repeatedly place orders at the same timeand that too the order quantity and price of a buyer is matched with the same amount of order quantity and price of a seller without any partial order execution then it is pre meditated synchronized trade. I note that such synchronized trades create a misleading appearance of trading in the market. Reference may be made to the decision of the Hon’ble SAT in Appeal no. 04 in the matter of Ketan Parekh v s. SEBI decided on July 14 2006 relevant extract of which is reproduced hereunder: “20. There are yet another type of transactions which are commonly called synchronised deals. The word ‘synchronise’ according to the Oxford dictionary means “cause to occur at the same time be simultaneous”. A synchronised trade is one where the buyer and seller enter the quantity and price of the shares they wish to transact at substantially the same time. This could be done through the same brokeror through two different brokers. Every buy and sell order has to match before the deal can go through. This matching may take place through the stock exchange mechanism or off market. When it Final Order against Finquest Securities Pvt. Limited matches through the stock exchange it may or may not be a synchronised deal depending on the time when the buy and sell orders are placed. There are deals which match off market i.e. the buyer and the seller agree on the price and quantity and execute the transaction outside the market and then report the same to the exchange. These are also called negotiated transactions. Block deals when shares of a company are traded in bulk) are an instance of trades that match off market. Such trades have always been recognised by the market and also by the Board as a regulator. It has recently issued a circular requiring all bulk deals to be transacted through the exchange even if the price and quantity are settled outside the market. When such deals go through the exchange they are bound to synchronise. It would therefore follow that a synchronised trade or a trade that matches off market is per se not illegal. Merely because a trade was crossed on the floor of the stock exchange with the buyer and seller entering the price at which they intended to buy and sell respectively the transaction does not become illegal. A synchronised transaction even on the trading screen between genuine parties who intend to transfer beneficial interest in the trading stock and who undertake the transaction only for that purpose and not for rigging the market is not illegal and cannot violate the regulations. As already observed ‘synchronisation’ or a negotiated deal ipso facto is not illegal. A synchronised transaction will however be illegal or violative of the Regulations if it is executed with a view to manipulate the market or if it results in circular trading or is dubious in nature and is executed with a view to avoid regulatory detection or does not involve change of beneficial ownership or is executed to create false volumes resulting in upsetting the market equilibrium. Any transaction executed with the intention to defeat the market mechanism whether negotiated or not would be illegal. Whether a transaction has been executed with the intention to manipulate the market or defeat its mechanism will depend upon the intention of the parties which could be inferred from the attending circumstances because direct evidence in such cases may not be available. The nature of the transaction executed the frequency with which such transactions are undertaken the value of the transactions whether they involve circular trading and whether there is real change of beneficial ownership the conditions then prevailing in the market are some of the factors which go to show the intention of the parties. This list of Final Order against Finquest Securities Pvt. Limited 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.” The Noticee has stated that it is incorrect to say that the trades did not result in change beneficial ownership and that the trades resulted in delivery of the shares. I note that even though there is change in beneficial ownership but the same is merely amongst the clients who are connected entities. What the SCN has alleged is that by entering into the impugned synchronized trades the Bharat Patel Group has created an artificial and misleading appearance of trade by conducting transfer of ownership of shares within the connected entities. It has not resulted into any real transfer of ownership to other unconnected entities rather it was merely a transfer of shares amongst connected entities. I note that it is abundantly clear that the trading pattern of the Bharat Patel Group indicates connivance and a pre meditated scheme of synchronized trading. The orders by the buyer and the seller are placed with the precision of a second and the order price and order quantity matches to the last decimal. Such synchrony in trades is more than a co incidence and that too amongst connected entities. I note the observations of the Hon’ble Supreme Court in the matter SEBI v. Kishore R. Ajmera6 SCC 368 dealing with the standard of proof while imposing civil liabilities under SEBI Act 1992 or the regulations framed there under: “…facts and circumstances surrounding the events on which 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…” Final Order against Finquest Securities Pvt. Limited “…While the screen based trading system keeps the identity of the parties anonymous it will be too naive to rest the final conclusions on said basis which overlooks a meeting of minds elsewhere. Direct proof of such meeting of minds elsewhere would rarely be forthcoming. The test in our considered view is one of preponderance of probabilities so far as adjudication of civil liability arising out of violation of the Act or the provisions of the Regulations framed thereunder is concerned. Prosecution under Section 24 of the Act for violation of the provisions of any of the Regulations of course has to be on the basis of proof beyond reasonable doubt...” In light of the same as well as the facts of the matter as brought out above I am of the view that the synchronized trades could not have been carried out without the Noticee broker facilitating the same. Further as noted above Hardik Bharat Patel and Minal Bharat Patel who were part of the Bharat Patel Group are directors of Noticee. Therefore I do not agree with the argument of the Noticee that there is no connection and no connivance. In view of the above I find that the Noticee has indulged in synchronized trades on behalf of its clients in the scrip of AGIL during the investigation period. I find that by indulging in these trades the Noticee facilitated the Bharat Patel Group in carrying out non genuine trades in the market to the detriment of the genuine investors and adversely affecting the integrity of securities market. In view of the same I agree with the conclusion of the DA that the Noticee has violated Section 12A(b) andof the SEBI Act 1992 read with Regulations 3b) (d) 4and 4(a) of the PFUTP Regulation 2003 as well as clause Aof the code of conduct specified under Schedule II read with regulation 7 9 of the Brokers Regulations. I note that the SCN called upon the Noticee to show cause as to why action as deemed appropriate by the competent authority should not be taken against it Final Order against Finquest Securities Pvt. Limited in terms of Regulation 27 read with Regulation 28 of Intermediaries Regulations. I note that by the amendments made to Intermediaries Regulations on January 21 2021 Regulation 27 which dealt with recommendations for actions which could be made by DA in case of default has been substituted and Regulation 28 which dealt with procedure for action on receipt of the recommendation from DA has been omitted and these matters now stand governed by the Regulations 26 and 27 respectively. In this regard reference may be made to the judgment of Hon’ble Supreme Court in CIT Bangalore Vs. Venkateshwara HatcheriesLtd. and Ors.3 SCC 632 wherein it was held as under: “ …15. As noticed earlier the omission of Section 2(27) and re enactment of Section 80JJ was done simultaneously. It is a very well recognized rule of interpretation of statutes that where a provision of an Act is omitted by an Act and the said Act simultaneously re enacts a new provision which substantially covers the field occupied by the repealed provision with certain modification in that event such re enactment is regarded having force continuously and the modification or changes are treated as amendment coming into force with effect from the date of enforcement of re enacted provision. Viewed in this background the effect of re enacted provision of Section 80JJ was that profit from the business of livestock and poultry which enjoyed total exemption under Section 10(27) of the Act from assessment years 1964 65 to 1975 76 became partially exempt by way of deduction on fulfilment of certain conditions .” The aforesaid judgment has been quoted with approval by Hon’ble Supreme Court in its subsequent judgment in Fibre BoardsLtd. Bangalore Vs. CIT Bangalore 10 SCC 333. In the present case I note that prior to the aforesaid amendment procedure for conduct of enquiry proceedings before Final Order against Finquest Securities Pvt. Limited designated authority and designated memberwas provided under Regulations 25 to 28 of the Intermediaries Regulations wherein Regulation 25 dealt with issue of SCN by DA Regulation 26 dealt with reply of SCN by the Noticee Regulation 27 dealt with recommendation for actions which could be made by the DA and Regulation 28 dealt with conduct of proceedings before DM like issue of SCN hearing and passing of final order. After the amendment Regulation 25 as substituted deals with holding of enquiry proceedings before DA Regulation 26 deals with recommendation for actions which can be made by DA and Regulation 27 deals with conduct of enquiry proceedings before DM and passing of order by DM. Thus the proceedings before DM which were earlier governed by the provisions of Regulations 28 are now governed by the provisions of Regulation 27 with certain modifications. As noted above in respect of 26 synchronised trades for 21 42 281 shares were executed where the Noticee was a broker and or counterparty broker. I also note that the Noticee was the broker and counterparty broker for 13 out of 26 synchronized trades at BSE for a quantity of 12 27 197 sharesduring the investigation period. However the synchronized trades took place for 8 days as identified in the ER. I note that the matter pertains to transactions executed in the year 2011 2014. Around seven years have elapsed from the date of the defaults. By virtue of the judgment of Hon’ble Supreme Court in Venkateshwara Hatcheries case the new Regulation 27 is regarded having force continuously and the modification or changes are treated as amendment coming into force with effect from the date of enforcement of new Regulation 27 i.e. January 21 2021. Accordingly the present proceedings can be concluded under the amended provisions of the Intermediaries Regulations and for the violations committed by the Noticee Final Order against Finquest Securities Pvt. Limited discussed in the previous paragraphs directions under Regulation 27 of the Intermediaries Regulations can be issued. I note that vide order dated October 20 2021 a penalty of Rs. 10 lakh was imposed on the clients of the Noticeewho were connected to the Noticee inter alia for the trades impugned in the present proceedings. Further by the said order the clients except Bharat J. Patel) of the Noticee were also restrained from accessing the market for a period of one year. In view of the above I in exercise of the powers conferred upon me in terms of Section 12(3) and Section 19 of the Securities and Exchange Board of India Act 1992 read with Regulation 27of the Intermediaries Regulations hereby prohibit the Noticee i.e. Finquest Securities Pvt. Ltd from taking up any new client as a stock broker for a period of two months from the date of this order The order comes into force with immediate effect. A copy of this order shall be served on the Noticee and all recognized Stock Place: Mumbai Date : January 18 2022 ANANTA BARUA WHOLE TIME MEMBER SECURITIES AND EXCHANGE BOARD OF INDIA

Attempt to mislead the court will lead to quashing the petition: High Court of Kerala

If the parties to a dispute try to provide such information with the clear intention to mislead the court during the proceedings, this will result in quashing that petition. This was decided in the Joint Case of Samina & Ors.Vs. Syed Asim Pasha And Syed Ashim Pasha State  of Delhi At New Delhi & Ors  [CRL.REV.P. 17/2021 & Crl.M.A. 767-68/2021] by Justice Suresh Kumar Kait in the High Court of Delhi. The brief facts of the case are that marriage between the parties was solemnized as per Muslim law. Husband is said to be a permanent resident of Hyderabad and an Engineer by profession. Wife is also said to be a highly educated woman but unemployed. Out of this wedlock, parties are blessed with two daughters. However, the marriage between the parties did not work and they are started living separately. The husband has alleged that despite repeated requests, wife has refused to return to the matrimonial house, whereas the wife has alleged that her husband under a conspiracy brought her and the two daughters to Delhi to meet her parents and left them there and thereafter, put a condition that she should come back only if she brings Rs.5 Lacs from her parents. The court observed that the requirement is to determine is as to whether there is any illegality or perversity in the impugned order awarding maintenance to the wife and if it is exorbitant or on the lower side, as claimed by the parties. With respect to the quantum of maintenance, the wife has claimed that the husband is an Engineer and earning Rs.2 Lacs p.m. and he has no other liability except to maintain her and two daughters. She has claimed monthly expenditure of Rs.50,000/- for herself and Rs.20,000/- each for two daughters. 7. On the other hand, husband has claimed that the wife is a well-educated lady and an international player in shooting and is an international Coach and she imparts training and is earning Rs.25,000/- p/m. In addition, he has Crl. Rev. P. 298/2020 & Crl.Rev. P.17/2021 Page 4 of 6 claimed monthly expenditure of Rs.28,000/- towards household, transport, medical and health club. The court observed that the order passed by lower court included maintenance of Rs.12,000 to wife. However, the affidavits filed are silent about furnishing of copies of income tax returns, salary receipt or even bank statement of the parties. Neither of the party brought any document on record to establish their case. The husband has failed to bring on record any proof with regard to employment of the wife. Similarly, wife has failed to prove that husband is earning a handsome amount, however, she seeks maintenance. Both the parties did not reach the court with clean hands and have not disclosed true facts with regard to their income and expenditure, as observed by the court below. IT said “In the absence of documentary evidence on record, the only option left with the trial court was to determine maintenance keeping in mind the totality of circumstances.” The court said the trial court had relied upon decision of the Supreme Court in Jasbir Kaur Sehgal vs. District Judge, Dehradun (1997) 7 SCC 7 and observed “that parties in matrimonial disputes always try to mislead the court and furnish incomplete details and conceal the true facts specifically with regard to employment” income and that the courts have to resort to the status and life style of parties for fixing the maintenance. Thus the court did not interfere in the order and dismissed the petition.

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 08.02.2021 Pronounced on: 22.02.2021 CRL.REV.P. 298 2020 SAMINA & ORS. Through: Mr.Abhay Mani Tripathi Advocate Petitioners SYED ASIM PASHA Through: Mr.Abinash Kumar Mishra Advocate Respondent CRL.REV.P. 17 2021 & Crl.M.A. 767 68 2021 SYED ASHIM PASHA Through: Mr.Abinash Kumar Mishra Advocate Petitioner STATE NCT OF DELHI AT NEW DELHI & ORS. ... Respondents Through: Mr.Amit Chadha Additional Public Prosecutor for respondent No.1 State Mr.Abhay Mani Tripathi Advocate for respondents No.2 to 4 HON BLE MR. JUSTICE SURESH KUMAR KAIT JUDGMENT The order impugned in both the petitions is dated 20.02.2020 passed by the learned Principal Judge Family Court Karkardooma Courts Delhi vide which petitioner husband Syed Hashim Pasha has been directed to pay maintenance to petitioners wife & two daughters Samina & Ors.7 SCC 7 and decisions of this Court in Kusum Sharma Vs. Mahender Kumar Sharma 217DLT 709 and Radhika Vs. Vineet Rungta 110 DLT 111 and observed that parties in matrimonial disputes always try to mislead the court and furnish incomplete details and conceal the true facts specifically with regard to employment and Crl. Rev. P. 298 2020 & Crl.Rev. P.17 2021 income and that the courts have to resort to the status and life style of parties for fixing the maintenance. 10. The impugned order dated 20.02.2020 does find mention of affidavits of income and expenditure of both the sides but is silent about furnishing of copies of income tax returns salary receipt or even bank statement of the parties. In the absence of documentary evidence on record the only option left with the trial court is to determine maintenance keeping in mind the totality of circumstances. Neither of the party brought any document on record to establish their case. The husband has failed to bring on record any proof with regard to employment of the wife. Similarly wife has failed to prove that husband is earning a handsome amount however she seeks maintenance. Both the parties did not reach the court with clean hands and have not disclosed true facts with regard to their income and expenditure as observed by the court below. In the aforesaid view of the matter I find that the amount of maintenance fixed by the trial court is just and proper and does not call for 12. The above captioned petitions and pending applications are any interference. accordingly dismissed. Crl. Rev. P. 298 2020 & Crl.Rev. P.17 2021 13. The judgment be uploaded on the website of this Court forthwith. FEBRUARY 22 2021 SURESH KUMAR KAIT) JUDGE Crl. Rev. P. 298 2020 & Crl.Rev. P.17 2021

A crime against the accused must always be proved beyond reasonable doubt: Bombay High Court

The prosecution in a criminal case, especially that of a murder, must make all efforts to prove that the allegations against the accused are true beyond reasonable doubt, held, a division bench of Justice VK Jadhav and SG Dige, while adjudicating the matter in Sachin v. State of Maharashtra; [CRIMINAL APPEAL NO. 245 OF 2014] The informant Sanjay Ware is having an agricultural land at Lohasar, taluka Pathardi and he has constructed his residential house in the field itself. He was residing there along with his wife Vaishali (deceased), two sons and one daughter. The appellant-accused no.1 Sachin Chavan was working in his field since one and half year prior to the incident. The informant’s wife, namely deceased Vaishali, was having a sim-card of Idea Cellular Company. It was given to appellant-accused no.1 Sachin. The informant or his wife Vaishali used to contact appellant-accused no.1 Sachin on the said sim-card/cell phone in connection with the agricultural work. According to the prosecution, due to frequent visits to the house of the informant by appellant-accused no.1 Sachin and also due to use of the said sim-card for contact purposes, the appellant-accused no.1 Sachin had developed intimacy with the wife of the informant, namely, Vaishali (deceased). It is also the case of the prosecution that the appellant-accused no.1 Sachin had developed an evil eye on deceased Vaishali. Even deceased Vaishali had informed the same to the informant Sanjay. About two months prior to the incident, the appellant-accused no.1 Sachin had made an attempt to outrage the modesty of deceased Vaishali and she had beaten him with the help of her slippers. It is also the case of the prosecution that thereafter, informant Sanjay and deceased Vaishali both had asked the appellant-accused no.1 Sachin not to come to their house. However, accused no.1 Sachin was trying to remain in contact with deceased Vaishali. deceased Vaishali had gone to the weekly market at Karanji for purchasing the essentials on the eve of the Sankranti festival. She had taken Rs.500/- from the informant husband Sanjay and left the house at about 9.00 a.m. However, she did not return to the house from the weekly market. The informant Sanjay and his brother-in-law had tried to search Vaishali, however they could not trace out her for about two days. The learned Additional Sessions Judge framed charge against both the accused under Sections 302, 201, 404 read with 34 of IPC. Both the accused pleaded not guilty to the charge and claimed to be tried.

on 09 07 2021 on 22 03 CriAppeal 245 2014.odt 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADCRIMINAL APPEAL NO. 245 OF 20141.Sachin S o Jalindar ChavanAge : 27 years Occ LabourR o. Pawalwadi Taluka PathardiDistrict Ahmednagar.2.Babasaheb S o Jalindar ChavanAge : 31 years Occ LabourR o. Pawalwadi Taluka PathardiDistrict Ahmednagar.… Appellants(Orig. Accuses)VersusThe State of Maharashtra… Respondent…..Mr. N. C. Garud Advocate for the AppellantsMr. S. D. Ghayal APP for the Respondent State. …..CORAM : V. K. JADHAV ANDS. G. DIGE JJ. RESERVED ON : 30.06.2021PRONOUNCED ON : 09.07.2021 JUDGMENT: 1.This appeal is directed against the judgment and order ofconviction dated 24.02.2014 passed by the Additional SessionsJudge Ahmednagar in Sessions Case No. 1313. on 09 07 2021 on 22 03 CriAppeal 245 2014.odt 2 2.Brief facts giving rise to the present appeal are as under:a.The informant Sanjay Ware is having an agricultural land atLohasar taluka Pathardi and he has constructed his residentialhouse in the field itself. He was residing there along with his wifeVaishalitwo sons and one daughter. The appellant accused no.1 Sachin Chavan was working in his field since one andhalf year prior to the incident. The informant’s wife namelydeceased Vaishali was having a sim card of Idea Cellular Company.It was given to appellant accused no.1 Sachin. The informant or hiswife Vaishali used to contact appellant accused no.1 Sachin on thesaid sim card cell phone in connection with the agricultural work.According to the prosecution due to frequent visits to the house ofthe informant by appellant accused no.1 Sachin and also due touse of the said sim card for contact purposes the appellant accusedno.1 Sachin had developed intimacy with the wife of the informant namely Vaishaliprepared spot panchanama Exhibit 31 in thepresence of the panchas and seized certain articles including theblood stained stone lying at the spot. He also prepared the inquestpanchanama Exhibit 37 on the dead body. He also sent the deadbody of deceased Vaishali to Sub District Hospital Pathardi forpostmortem examination. After receipt of the report of viscera the on 09 07 2021 on 22 03 CriAppeal 245 2014.odt 5 medical officer who has conducted the postmortem examination gave opinion that deceased died due to head injury. PW 14Investigating Officer Ashok Amle has also seized the cloths on thedead body and seizure panchanama was also drawn. During thecourse of investigation while in police custody accused no.1Sachin has made a disclosure statement to produce the sim cardwhich was handed over to him by Vaishali and accordingly thesame was recovered by drawing memorandum panchanama.Appellant accused no.2 Babasaheb Chavan also made a voluntarystatement to produce mangalsutra and ear rings belonging todeceased Vaishali and accordingly the memorandum of recoverywas drawn in presence of the panchas. PW 14 Investigating OfficerAshok Amle also seized the cloths on the person of both theaccused under the panchanama. During investigation the calldetail record of both the accused persons was collected from theIdea Cellular Company. The Investigating Officer then sent thecloths having blood stains and the articles seized from the spot tothe Chemical Analyzer and after receipt of the report from theChemical Analyzer submitted charge sheet against both theaccused for having committed offence punishable under Sections302 201 read with 34 of IPC. on 09 07 2021 on 22 03 CriAppeal 245 2014.odt 6 f. The learned Additional Sessions Judge framed chargeagainst both the accused under Sections 302 201 404 read with34 of IPC. Both the accused pleaded not guilty to the charge andclaimed to be tried. The prosecution has examined in all 14witnesses to substantiate the charge leveled against the accused.The defence of both the accused is of total denial and falseimplication. Their statements under Section 313 of Cr.P.C. came tobe recorded.g.The learned Additional Sessions Judge Ahmednagar by theimpugned judgment and order dated 24.02.2014 has convicted theaccused persons as follows:1.Accused No. 1 Sachin Chavan is hereby convicted of theoffence of murder punishable under section 302 ofIndian Penal Code and sentenced to sufferimprisonment for life.2.Accused No. 2 Babasaheb Chavan is hereby acquitted ofthe offence punishable under section 302 of IndianPenal Code.3.Accused Nos. 1 Sachin Chavan and No. 2 BabasahebChavan are hereby acquitted under section 201 ofIndian Penal Code.4.Accused Nos. 1 Sachin Chavan & accused No.2Babasaheb Chavan are hereby convicted under section404 of Indian Penal Code and sentenced to suffer on 09 07 2021 on 22 03 CriAppeal 245 2014.odt 7 Rigorous Imprisonment for period of one year and topay fine of Rs.1 000 each indefault of fine to undergo simple imprisonment forfurther period of Three Months.5.Both sentences awarded to accused Nos. 1 SachinChavan and No.2 Babasaheb Chavan shall runconcurrently.6.Accused Nos. 1 Sachin Chavan and No. 2 BabasahebChavan are entitled for set off remission under section428 of the Code of Criminal Procedure.7.…...3.Hence this Appeal.4.Learned counsel for the appellants accused submits that theprosecution case rests entirely upon circumstantial evidence andthere is no direct evidence in this case. PW Sanjay Ware has lodgedthe missing report in Pathardi Police Station after a considerablegap. Deceased Vaishali was found missing from 08.01.2013.However PW Sanjay Ware has lodged the missing report Exhibit 28on 11.01.2013 in Pathardi Police Station. In the said missing reportExhibit 28 PW Sanjay Ware has neither made any allegationsagainst accused no.1 Sachin nor expressed any suspicion againsthim. PW 3 Laxman Auti Police Naik was entrusted with the inquiryof the missing report Exhibit 28. According to said Police Naik PW on 09 07 2021 on 22 03 CriAppeal 245 2014.odt 8 3 Laxman Auti he came to know from PW Sanjay Warethat several calls were made on the cell number ofdeceased Vaishali and those calls were received from one particularnumber. Thus he obtained the call details of the said number andalso traced out the location of the said cell phone. The said calldetail reports are marked at Exhibits 34 and 35 respectively. PWSanjay Ware has informed the Police Naik PW 3 Laxman Auti thatthose calls are from the cell phone of accused no.1 Sachin Chavan.On 14.01.2013 the Police party went to Nepti Naka and effectedarrest of accused no.1 Sachin Chavan in presence of thecomplainant PW Sanjay and his brother in law. Learned counsel forthe appellants submits that it is the case of the prosecution thataccused Sachin has made a voluntary statement to show the spotwhere the dead body was lying and accordingly the police party the informant and others went to the spot of incident and thepolice had drawn the spot panchanama Exhibit 31. Only thereafter PW Sanjay Ware has lodged the complaint Exhibit 29. Learnedcounsel submits that there is no memorandum panchanama drawnby the police for the alleged statement made by accused Sachinbefore showing the spot of incident where the dead body was lying.The learned counsel submits that the statement to that effectrecorded in the spot panchanama Exhibit 31 is not admissible inevidence. on 09 07 2021 on 22 03 CriAppeal 245 2014.odt 9 5.Learned counsel for the appellants submits that theprosecution has failed to prove the chain of circumstantialevidence. The motive as alleged by the prosecution is very weak inthis case. The prosecution case entirely rests upon the solecircumstance that deceased Vaishali was lastly seen alive in thecompany of accused no.1 Sachin in the weekly market of villageKaranji. The prosecution has examined one Mithu Giteonthat point. According to PW 5 Mithu Gite on 08.01.2013 at about11 a.m. to 11.30 a.m. he had seen deceased Vaishali on themotorcycle of accused no.1 Sachin Chavan. Learned counselsubmits that this evidence is contrary to the motive as alleged bythe prosecution. If at all deceased Vaishali had extended beating toaccused no.1 Sachin because of his mis behaviour some twomonths prior to the incident and even though deceased Vaishaliand her husband PW Sanjay had told accused no.1 Sachin not tocome to their house it was very unlikely on the part of deceasedVaishali to sit on the motorcycle of accused no.1 Sachin in theweekly market. In the backdrop of the evidence of PW 5 MithuGite there was no apparent reason for accused no.1 Sachin tomurder deceased Vaishali by taking her to an isolated place in thevalley of Vrudhheshwar. Learned counsel submits that even if thiscircumstance of last seen together is accepted as it is there isconsiderable time gap between the said last seen together and the on 09 07 2021 on 22 03 CriAppeal 245 2014.odt 10 death of deceased Vaishali. Some eight days after the saidcircumstance of last seen together the dead body of deceased waslocated.6.Learned counsel for the appellants submits that there was noidentification of the dead body and as per the opinion expressed bythe medical officer who has conducted the postmortemexaminationthe dead body was indecomposed condition with disfigurement of face. Thus personalidentification of the body could not have been ascertained.7.Learned counsel for the appellants submits that so far as therecovery of sim cards from accused no.1 Sachin is concerned thesaid recovery is meaningless for the reason that admittedly the saidsim card was given to him by PW Sanjay and deceased Vaishaliduring the course of employment of accused Sachin with them.Furthermore the recovery of motorcycle has also no meaning.Learned counsel submits that even though one mangalsutra shownto have been recovered at the instance of accused no.2 BabasahebChavan however there is no further connecting evidence throughPW Sanjay Ware that the said mangalsutra was belonging todeceased Vaishali. Learned counsel submits that as per theallegations made in the complaint two sim cards were given to on 09 07 2021 on 22 03 CriAppeal 245 2014.odt 11 accused Sachin and the same shown to have been recovered undermemorandum of recovery panchanama Exhibits 53 and 54respectively. Learned counsel submits that even though the calldetail records Exhibits 34 and 35 are accepted as it is it indicatesthat several calls were made using the cell number of Vaishali andeven till 15.01.2013 calls were made on the cell number ofdeceased Vaishali from those sim cards. Learned counsel submitsthat if at all accused no.1 Sachin along with his brother accusedno.2 Babasaheb have committed murder of deceased Vaishali therewas no reason for accused no.1 to make phone calls on the cellphone of deceased Vaishali. Learned counsel submits that there isno chain of circumstantial evidence unerringly pointing out theguilt of the accused. Both the appellants accused nos. 1 and 2 areentitled for the benefit of doubt.8.Learned APP submits that the prosecution has proved its casebeyond reasonable doubt. The prosecution has proved thehomicidal death beyond doubt and the dead body was dulyidentified by PW Sanjay as of his wife deceased Vaishali on thebasis of the cloths and other articles found on the dead body.Learned APP submits that there is strong motive for the appellantaccused no.1 Sachin to commit murder of deceased Vaishali.Deceased Vaishali had beaten accused no.1 Sachin because of his on 09 07 2021 on 22 03 CriAppeal 245 2014.odt 12 mis behaviour. Thus accused no.1 Sachin had a grudge against her.On the day of incident i.e. on 08.01.2013 deceased Vaishali waslastly seen alive in the company of accused no.1 Sachin at about 11a.m. to 11.30 a.m. in the weekly market at village Karanji by PW 5Mithu Gite. Prosecution has examined PW 5 Mithu Gite to provethe said circumstance of last seen together. The dead body wasrecovered on the basis of the disclosure statement made by accusedno.1 Sachin. Learned APP submits that at the instance of accusedno.1 Sachin the sim cards came to be seized by drawingmemorandum of recovery panchanama Exhibits 53 and 54 and alsorecovered the mangalsutra of deceased Vaishali at the instance ofaccused no.2 Babasaheb by drawing memorandum panchanamaand recovery panchanama Exhibit 52 and 52A. Learned APPsubmits that learned Additional Sessions Judge Ahmednagar hasrightly convicted accused no.1 Sachin for the offence punishableunder Section 302 of IPC and also convicted both the accusedpersons for the offence punishable under Section 404 of IPC. Thereis no substance in this appeal and the appeal is thus liable to bedismissed.9.The prosecution case entirely rests upon circumstantialevidence and there is no direct evidence in this case. on 09 07 2021 on 22 03 CriAppeal 245 2014.odt 13 10.The prosecution has examined PW 8 Dr. Manisha Hange andPW 12 Dr. Pandit Raosaheb Shirsath. Both the doctors haveconducted postmortem examination on the dead body of Vaishali.In column no. 17 of the report Exhibit 48 it is mentioned as :“Surface wound injuries over face & head are notedas follows : there is total disfigurement of jaw andfacial structure fragmentary remains of maxillaryarch fracture mandible total dislodgment from TMjoint absence of facial structure including facial skin soft tissue eyeballs nose tongue lips and cheek.Skull has been crushed with fragmentary remains ofskull bone absence of brain tissue noted.”In addition to this in column no. 16 :“there is absence of right hand right forearm lower2 3rd of right arm exposing right humerus shaft”Certain injuries are also noted those may be due to body part eatenby animals. It is mentioned that the injuries mentioned over theextrimities are postmortem in nature. However the injuriesmentioned in column no. 17 are anti mortem in nature. 11.Initially the opinion was reserved till the report of viscera.However after receipt of viscera PW 12 Dr. Pandit Shirsath has on 09 07 2021 on 22 03 CriAppeal 245 2014.odt 14 opined that deceased might have died due to head injury. Both themedical experts have accepted that the body was in highlydecomposed condition and therefore the final cause of death couldnot be given. On the basis of certain injuries on head Dr. PanditShirsathhas given the opinion that deceased might havedied due to head injury. It appears from the evidence of both themedical experts that due to disfigurement of face personal identityof the body could not be ascertained. On the basis of the injuries asdetailed in column no. 17 of the postmortem report Exhibit 48 aninference could be drawn about homicidal death. However theprosecution has not firmly established that the said dead body wasof deceased Vaishali.12.PW Sanjay Ware has deposed that he had identified the deadbody as of his wife Vaishali on the basis of her ear rings mangalsutra scarf and slippers. He has further explained thataccused no.2 Babasaheb had taken out the ornaments and otherarticles from the dead body of Vaishali. According to him he hadidentified the dead body of Vaishali on the basis of the sari on herbody bangles and slippers. We have carefully gone through thecontents of the spot panchanama and the articles seized from thespot. It appears that the said spot panchanama Exhibit 31 wasdrawn on 17.01.2013 and the Investigating Officer has seized five on 09 07 2021 on 22 03 CriAppeal 245 2014.odt 15 articles. Those articles arethe long hairs socked in blood ofdeceased stones stained with blood the blood mixed earthblack scarf from the head of the deceased andthe sample ofsimple earth. The inquest panchanama Exhibit 37 was drawn on16.01.2013 and there is no reference to the scarf on the head of thedeceased. One seizure panchanama Exhibit 56 of the seizure of theclothes on the person of deceased shown to have been drawn on18.01.2013 wherein for the first time a reference has come aboutthe sari and the blouse. PW Sanjay Ware has deposed that he hasidentified the dead body of Vaishali on the basis of the sari on herbody bangles and slippers. So far as the bangles and slippers areconcerned those are neither shown in the spot panchanama northe inquest panchanama nor seized by the Investigating Officer atany point of time. Even though PW Sanjay Ware allegedlyidentified the dead body on the basis of the sari however said sariwas not shown as an article seized during the spot panchanamaExhibit 31. The said sari shown to have been seized only on18.01.2013 i.e. two days after the said dead body was found. Weare of the considered opinion that there is no proper identificationof the dead body in this case. Even the Investigating Officer hasfailed to opt for a DNA test to identify the dead body. on 09 07 2021 on 22 03 CriAppeal 245 2014.odt 16 13.It is needless to say that motive plays a prominent role whenthe prosecution case rests upon circumstantial evidence. In theinstant case the prosecution has shown the motive of accused no.1Sachin that some two months prior to the incident deceasedVaishali had beaten him with slippers on account of his mis behaviour and therefore accused no.1 Sachin along with hisbrother accused no.2 Babasaheb had committed murder ofdeceased Vaishali. We find the motive very weak in this case.According to PW Sanjay two months prior to the incident accusedno.1 Sachin had made an attempt to outrage the modesty ofdeceased Vaishali and thus deceased Vaishali had beaten him andtold him not to come to their house. In the backdrop of this it issurprising that PW Sanjay Ware though searched his wifeextensively from 08.01.2013 to 11.01.2013 however he has notexpressed any suspicion against accused no.1 Sachin in the missingreport. It is also equally surprising that till 11.01.2013 PW SanjayWare has not filed the missing report Exhibit 28 in the concernedpolice station.14.The prosecution has come with a story of last seen together.PW 5 Mithu Gite has seen deceased Vaishali on the motorcycle ofaccused Sachin on 08.01.2013 at about 11.00 a.m. to 11.30 a.m. inthe weekly market at Karanji. We will discuss this circumstance in on 09 07 2021 on 22 03 CriAppeal 245 2014.odt 17 detail. However so far as the motive as alleged by the prosecutionis concerned the evidence of PW 5 Mithu Gite appears to becontrary to it. If at all deceased Vaishali was unhappy and reactedin harsh manner due to mis behaviour of accused no.1 Sachin twomonths prior to the incident and she further directed accused no.1Sachin as not to come to their house it was very unlikely on herpart to sit on the motorcycle of accused no.1 Sachin as a pillionrider at the crowed place of weekly market at village Karanji. Weare of the considered opinion that the prosecution could notestablish the motive of accused no.1 Sachin to commit murder ofVaishali.15.So far as the circumstance of last seen together is concerned the prosecution has examined witness PW 5 Mithu Tatyaba Gite.On 08.01.2013 in the morning deceased Vaishali left the house forpurchasing the essentials from the weekly market at Karanji on theeve of Sankrant festival. PW Mithu Gite has seen deceased Vaishalion the motorcycle of accused Sachin on the same day at about11.00 a.m. to 11.30 a.m. in the weekly market at village Karanji.16.In the case of Mohibur Rahman and another v. State ofAssam reported in6 SCC 715 in para 10 the SupremeCourt has made the following observations: on 09 07 2021 on 22 03 CriAppeal 245 2014.odt 18 “10.The circumstance of last seen together does not byitself and necessarily lead to the inference that it was theaccused who committed the crime. There must besomething more establishing connectivity between theaccused and the crime. There may be cases where onaccount of close proximity of place and time between theevent of the accused having been last seen with thedeceased and the factum of death a rational mind may bepersuaded to reach an irresistible conclusion that eitherthe accused should explain how and in what circumstancesthe victim suffered the death or should own the liability forthe homicide. In the present case there is no suchproximity of time and place. As already noted the deadbody has been recovered about 14 days after the date onwhich the deceased was last seen in the company of theaccused. The distance between the two places is about 30 40 kms. The event of the two accused persons havingdeparted with the deceased and thus last seen togetherdoes not bear such closeproximity with the death of the victim by reference to timeor place. According to Dr Ratan Ch. Das the deathoccurred 5 to 10 days before 9 2 1991. The medicalevidence does not establish and there is no other evidenceavailable to hold that the deceased had died on 24 1 1991or soon thereafter. So far as the accused Mohibur Rahmanis concerned this is the singular piece of circumstantialevidence available against him. We have already discussedthe evidence as to recovery and held that he cannot beconnected with any recovery. Merely because he was lastseen with the deceased a few unascertainable number ofdays before his death he cannot be held liable for theoffence of having caused the death of the deceased. So far on 09 07 2021 on 22 03 CriAppeal 245 2014.odt 19 as the offence under Section 201 IPC is concerned there isno evidence worth the name available against him. He isentitled to an acquittal.”17.The Supreme Court has observed that the circumstance oflast seen together does not by itself and necessarily lead to theinference that it was the accused who committed the crime. Theremust be something more establishing the connectivity between theaccused and the crime. On account of the close proximity of placeand time between the event of accused having been last seen withthe deceased and the factum an irresistible conclusion can bedrawn that either the accused should explain the circumstance orhe should own the liability for the homicide.18.In the instant case there is no such proximity of time andplace. The dead body of Vaishali was recovered on 16.01.2013 fromVrudhheshwar valley which is at a distance of 40 kms fromPathardi. Village Lohasar where PW Sajnay Ware and deceasedVaishali were residing is at a distance of 3 kms from the weeklymarket of village Karanji. Deceased Vaishali was found missing on08.01.2013 and the dead body was recovered eight days after thedate on which deceased was last seen in the company of accusedno.1 Sachin. The medical evidence does not positively establishthat deceased Vaishali died on 08.01.2013 or soon thereafter. on 09 07 2021 on 22 03 CriAppeal 245 2014.odt 20 Admittedly there is no other evidence indicating the exact time ofdeath of Vaishali.19.Furthermore PW 5 Mithu Gite has admitted in his cross examination that he had not informed anyone the fact of last seentogether till his statement was recorded by the police. He hasfurther admitted in his cross examination that he was aware thatpeople were searching Vaishali and Police had also come to hisvillage to search Vaishali. He has also admitted in his cross examination that he has gone twice to the police. First time he hadgone to the police when Vaishali had died and at that time he hadnot told about the said incident of seeing Vaishali in the weeklymarket of Karanji to the police. PW Sanjay Ware has also admittedin his cross examination that PW 5 Mithu Gite and one SarangdharGite met him on 09.01.2013 at Lohasar Taluka Pathardi. PWSanjay Ware has also admitted in his cross examination that on08.01.2013 his wife deceased Vaishali first went to her maternalhouse before going to the weekly market. PW Sanjay Ware hasvoluntarily stated in his cross examination that deceased Vaishalileft her maternal home for going to the weekly market at about12.30 p.m. In view of this admission the theory of last seentogether put forth by the prosecution as a material circumstance appears to be unbelievable. We are of the opinion that witness PW on 09 07 2021 on 22 03 CriAppeal 245 2014.odt 21 Mithu Gite is a got up witness. His evidence is unreliable notinspiring confidence.20.We have carefully gone through the call detail record. We aresurprised to note that as per the call detail record from 08.01.2013to 15.01.2013 there are calls from a particular cell phone to thecell phone of deceased Vaishali or the informant. Accused no.1Sachin along with his brother if committed murder of deceasedVaishali then it is very unlikely on his part to make phone calls onthe cell phone of deceased Vaishali by using the sim cards given tohim by deceased Vaishali during her life time when accused no.1was working in their field. Otherwise also we do not find anyrelevancy in the call detail record to establish the guilt of theaccused. Even if the frequency of calls between the sim card cellphone in possession of accused no.1 Sachin and the cell phone ofdeceased Vaishali is considered it appears that there were intimaterelations between them. However the same is contrary to themotive as put forth by the prosecution to prove the involvement ofaccused no.1 Sachin in commission of murder of Vaishali. Similarly even though there is recovery of the sim cards at the instance ofaccused no. 1 Sachin however admittedly those sim cards weregiven to him by PW Sanjay Ware and his wife deceased Vaishaliwhen he was working in their field. There is no further evidence to on 09 07 2021 on 22 03 CriAppeal 245 2014.odt 22 indicate that despite their insistence accused no.1 Sachin did notreturn those sim cards to them. 21.So far as the involvement of accused no.2 Babasaheb inconnection with the present crime is concerned he has beenconvicted for the offence punishable under Section 404 of IPCalong with accused no.1 Sachin only due to recovery ofmangalsutra and ear rings at his instance. The prosecution hasexamined PW 10 Raju Sontakke to prove the memorandum ofrecovery panchanama Exhibit 52 and the recovery panchanamaExhibit 52A for the recovery of mangalsutra and the ear rings. PWRaju Saotakke has not supported the prosecution. If for the sake ofdiscussion we accept that the said recovery of mangalsutra and ear rings was at the instance of accused no.2 Babasaheb as deposed byPW 14 Investigating Officer Ashok Amle however we do not findany further connecting evidence so far as the said recovery isconcerned. PW Sanjay Ware has deposed that he has identified thedead body of Vaishali on the basis of the sari on her body banglesand slippers. We have already dealt with this part of the evidence.Even PW 14 Investigating Officer Ashok Amle has also admittedthat he has not seen bangles and slippers. Even the sari was notseized at the time of drawing of the spot panchanama or theinquest panchanama. It is pertinent that the sari was seized by on 09 07 2021 on 22 03 CriAppeal 245 2014.odt 23 drawing a separate panchanama on 18.01.2013 i.e. two days afterthe dead body was found. Even there is no reference in thecomplaint Exhibit 29 that the mangalsutra and the ear rings on thedead body are missing. Further we do not find any evidence toindicate that the said mangalsutra and ear rings were shown to PWSanjay Ware and he has identified the said articles as belonging tohis wife. Even those articles were not shown to PW Sanjay Ware inthe court for identification purpose. On the other hand PW SanjayWare has initially stated in his examination in chief itself that hehas identified the dead body of Vaishali on the basis of her ear rings mangalsutra scarf and slippers. He has corrected himself.However we cannot ignore that initially he has given the fataladmissions in respect of the mangalsutra and ear rings. Further thesaid memorandum of recovery as per Exhibits 52 and 52A is muchlater i.e. on 18.01.2013.22.We have also carefully gone through the contents of the C.A.report Exhibit 47. It appears that the cloths on the person of theaccused are marked as articles 9 10 11 and 12. As per the result ofanalysis no blood is detected on Exhibits 9 10 11 and 12. Eventhough there is recovery of motorcycle at the instance of accusedno.1 Sachin however we find no connecting evidence by way ofrecovery of the motorcycle. The Investing Officer PW Ashok Amle on 09 07 2021 on 22 03 CriAppeal 245 2014.odt 24 has deposed that during investigation it was revealed that accusedno.1 smashed the head of deceased by means of stone. Accusedno.1 Sachin had demanded sexual relations from Vaishali and soVaishali had assaulted accused Sachin and on that count murderhad taken place out of revenge with the help of accused no.2.However we hardly find any evidence to draw a conclusion to thateffect as deposed by the Investigating Officer. On the contrary theevidence indicates otherwise. We are of the considered opinion thatthe prosecution has failed to prove the case beyond reasonabledoubt against both the accused persons. Thus both the appellants accused are entitled for the benefit of doubt. We accordinglyproceed to pass the following order:ORDERI.Criminal Appeal No. 2414 is herebyallowed.II.The impugned judgment and order dated24.02.2014 passed by the Additional SessionsJudge Ahmednagar in Sessions Case No. 132 of2013 is hereby quashed and set aside.III.Accused No.1 Sachin Jalinder Chavan and accusedno.2 Babasaheb Jalinder Chavan are herebyacquitted of all the charges. on 09 07 2021 on 22 03 CriAppeal 245 2014.odt 25 IV.The fine amount if deposited shall be refunded tothem.V. The appellant accused no.1 Sachin JalinderChavan and the appellant accused no.2 Babasaheb Jalinder Chavan shall execute P.B. ofRs.15 000 each with one surety of the likeamount each to appear before the higher court asand when the notice is issued in respect of anyappeal or petition filed against the judgment ofthis Court. Such bail bonds shall remain in forcefor a period of six months from the date of itsexecution.VI.Criminal Appeal No. 2414 is accordinglydisposed off. (V. K. JADHAV J.) vre

Section 173 Motor Vehicles Act, 1988- Amendment Proposed to curtail pendency of appeals before High Courts: Supreme Court of India

Since there are a number of appeals filed under Section 173 of the Motor Vehicles Act, 1988 against the awards of the Tribunals before the relevant High Court, it leads to accumulation of a large number of pending appeals before the High Courts, and therefore, in order to curtail the pendency before the High Courts and for speedy disposal of the appeals concerning payment of compensation to the victims of road accident, it would be just and proper to consider constituting ‘Motor Vehicle Appellate Tribunals’ by amending Section 173 of the Motor Vehicles Act so that the appeals challenging the award of a Tribunal could be filed before the Appellate Tribunal so constituted. This was observed by Hon’ble S. Abdul Nazeer, J while deciding the matter of Rasmita Biswal & Ors. v. Divisional Manager, National Insurance Company Ltd. and Anr. – [Civil Appeal No. 7549 of 2021]. In this case, there is an appeal directed against the judgment passed by the High Court of Orissa at Cuttack, whereby the High Court reduced the compensation payable to the appellants. The appellant is the wife of the deceased who had died in a motor vehicle accident. She had filed a claim petition before the Additional District Judge-cum-Motor Accident Claims Tribunal, Talcher District (for short ‘the Tribunal’), seeking compensation. The Tribunal, had held that the cause for the accident was the rash and negligent driving of the offending truck by its driver and awarded a total compensation of Rs.12,90,064/- along with interest at the rate of 6% per annum. The claimants as well as the insurer challenged the award of the Tribunal before the High Court. The High Court set aside the award and remitted the matter back to the Tribunal for fresh disposal. The Tribunal once again considered the matter and awarded a total compensation of Rs.22,60,000/-. The insurer challenged the award of the Tribunal before the High Court by filing an appeal in which, the High Court modified the award of the Tribunal and awarded compensation of Rs.17,00,000/- with interest at the rate of 7.5% per year from the date of claim petition till the date of realization. The learned Advocate appearing on behalf of the appellant contended that the High Court was not justified in reducing the compensation without assigning any reason and contended that the appellant was earning Rs.15,000/ and had a permanent job. The Courts below have not awarded any compensation towards loss of future prospects. It was argued that the compensation awarded was not in accordance with the judgment of the Supreme Court in National Insurance Company Limited v. Pranay Sethi and Others. On the other hand, the learned advocate appearing for the respondent-insurer supported the judgment of the High Court. Supreme court after perusing the facts and arguments presented, held that the appellant was entitled to compensation of 31,01,000/- and disposed the present appeal. Before parting with the judgement, this Court also observed that– “We may notice that a large number of claim petitions, under the provisions of the Motor Vehicles Act, 1988 being filed before the various Claims Tribunals established thereunder throughout the country. Against the awards of the Tribunals, appeals are filed under Section 173 of the Motor Vehicles Act, 1988 before the relevant High Court, either by the claimants or by the insurers and owners of the offending vehicles. Large number of such appeals are pending before the various High Courts. Having regard to the above, we are of the view that in order to curtail the pendency before the High Courts and for speedy disposal of the appeals concerning payment of compensation to the victims of road accident, it would be just and proper to consider constituting ‘Motor Vehicle Appellate Tribunals’ by amending Section 173 of the Motor Vehicles Act so that the appeals challenging the award of a Tribunal could be filed before the Appellate Tribunal so constituted. The various Benches of such an Appellate Tribunal could consist of two Senior District Judges. To ensure access to justice and to avoid pendency, it is also proper to consider setting up Benches of the Appellate Tribunal in various regional cities, in addition to the capital city of each State as may be indicated by the relevant High Court. For this purpose, appropriate rules governing the procedure of the Appellate Tribunal may also be framed. No further appeal against the order of the Appellate Tribunal need be provided. If any of the party is aggrieved by the order of the Appellate Tribunal, he can always invoke the writ jurisdiction of the concerned High Court for appropriate reliefs.” and requested the Department of Justice, Ministry of Law and Justice, to examine this matter.

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7549 of 2021 Arising out of S.L.P.(C)No.231718 RASMITA BISWAL & ORS DIVISIONAL MANAGER NATIONAL INSURANCE COMPANY LTD. AND ANR JUDGMENT S. ABDUL NAZEER J This appeal is directed against the judgment and order dated 07.03.2018 passed by the High Court of Orissa at Cuttack in MACA No.965 of 2016 whereby the High Court has reduced the compensation payable to the appellants claimants from Rs.22 60 000 to Rs.17 00 000 The first appellant is the wife of one Manoj Kumar Biswal and the second and third appellants are their minor sons. Manoj Kumar Biswal died in a motor vehicle accident which occurred on 09.05.2013. The appellants filed claim petition bearing MAC No.46 2013 before the Additional District Judge cum Motor Accident Claims Tribunal Talcher District seeking compensation on account of the death of Manoj Kumar Biswal. The first respondent owner of the offending truck filed his written statement denying any negligence on the part of the driver of the offending truck Respondent no.2 is the insurer who also filed the written statement opposing the claim petition. The Tribunal on appreciation of the materials on record held that the cause for the accident was the rash and negligent driving of the offending truck by its driver. The Tribunal awarded a total compensation of Rs.12 90 064 along with interest at the rate of 6% per annum. The claimants as well as the insurer challenged the award of the Tribunal before the High Court vide MACA Nos.1134 and 11614. The High Court set aside the award and remitted the matter back to the Tribunal for fresh disposal. The Tribunal once again considered the matter and awarded a total compensation of Rs.22 60 000 . The insurer challenged the award of the Tribunal before the High Court by filing an appeal bearing MACA No.9616. In that appeal the High Court has modified the award of the Tribunal and awarded compensation of Rs.17 00 000 with interest at the rate of 7.5% per year from the date of claim petition till the date of realization. Learned counsel for the appellant would contend that the High Court was not justified in reducing the compensation without assigning any reason. It is contended that the appellant was earning Rs.15 000 and was aged about 28 years at the time of his death. The Courts below have taken his age as 33 years and has applied multiplier ‘16’ instead of ‘15’. It is further argued that the deceased had a permanent job. The Courts below have not awarded any compensation towards loss of future prospects. Even the compensation awarded under the conventional heads is not in accordance with the judgment of this Court in National Insurance Company Limited v. Pranay Sethi and On the other hand learned advocate appearing for the respondent insurer has supported the judgment of the High Court 7. We have carefully considered the submissions made at the Bar and perused the materials placed on record The finding of the Tribunal and that of the High Court with regard to the cause of the accident and the liability of the insurer to pay compensation is not disputed. Therefore the only question for consideration is whether compensation awarded by the High Court is adequate. The deceased was working as supervisor under one Kusha Samalproprietor of M s. Divine Construction. Exhibit P 8 is certificate issued by PW 3 shows that the deceased was a supervisor in the organisation and his salary 116 SCC 680 was Rs.15 000 per month. In his evidence PW 3 has also stated that the deceased was paid salary of Rs.15 000 per month. The first appellant wife of the deceased was examined as PW 1. She has stated that the income of the deceased at the time of his death was Rs.15 000 per month. Taking into account the evidence on record the Tribunal has assessed his income at Rs.15 000 . We do not find any error with the assessment of the salary as such by the Tribunal Though the appellants claim that the deceased was aged 28 years at the of his death no documents have been produced in support of the said contention On the contrary PAN cardof the deceased shows that he was aged 33 years at the time of his death. Even the post mortem report of the deceased suggests the same. Therefore the Tribunal held that the deceased was aged 33 years and multiplier ‘16’ was applied. After deducting ¼ of the income towards the personal expenses of the deceased the Tribunal awarded a total compensation of Rs.21 60 000 towards loss of dependency and a sum of Rs.1 00 000 under other conventional heads. Thus a total sum of Rs.22 60 000 was awarded by the Tribunal 11. However the High Court without assigning any reason whatsoever has modified the award of the Tribunal and has awarded a compensation of Rs.17 00 000 by holding as under “Considering the submissions made and keeping in view the quantum of compensation amount awarded and the basis on which the same has been arrived at I feel the interest of justice would be best served if the awarded compensation amount of Rs.22 60 000 is modified and reduced to Rs.17 00 000 Rupees Seventeen Lakhs) only which is payable to the claimants along with the awarded interest. The impugned award is modified to the said extent.” Section 173 of the Motor Vehicles Act 1988 provides for filing of an appeal against the award passed by the Claims Tribunal. It is settled law that an appeal is continuation of the proceedings of the original Court Tribunal. An appeal is a valuable right of the appellant and at the stage of an appeal all questions of fact and law decided by the Tribunal are open for the reconsideration. Therefore the appellate court is required to address all the questions before it and decide the case by giving reasons. 13. We have already held that the monthly income of the deceased as assessed by the Tribunal at the rate of Rs.15 000 per month is just and proper It is also established that the deceased was 33 years at the time of his death Therefore application of multiplier of ‘16’ by the Tribunal is also proper. The annual salary of the deceased comes to Rs.1 80 000 which has to be multiplied by ‘16’ which becomes Rs.28 80 000 In Pranay Sethi 1 the Constitution Bench of this Court has held that in case the deceased was self employed or on a fixed salary an addition of 40% of the established income should be awarded where the deceased was below the age of 40 years “In case the deceased was self employed or on a fixed salary an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.” 40% of the income of the deceased therefore has to be added towards loss of future prospects which comes to Rs.11 52 000 . Thus the total income of the deceased is Rs.40 32 000 . One fourth of the income i.e. 10 08 000 has to be deducted towards the personal expenses of the deceased as he has left behind three dependants. Therefore the total amount payable to the claimants towards loss of dependency comes to Rs.30 24 000 . In Pranay Sethi 1 this Court has awarded a total sum of Rs.70 000 under conventional heads namely loss of estate loss of consortium and funeral expenses. The said Judgment of the Constitution Bench was pronounced in the year 2017. Therefore the claimants are entitled to 10% enhancement Rs.16 500 is awarded towards loss of estate and conventional expenses and Rs.44 000 is awarded towards spousal consortium. Thus the total compensation payable to the claimants is as under Towards loss of dependency Towards loss of estate Rs.30 24 000 Rs.16 500 Rs.16 500 Rs.44 000 Rs.31 01 000 17. As noticed above the High Court has already awarded a sum of Rs.17 00 000 . Thus the balance sum payable to the appellants is Rs.14 01 000 . The second respondent Insurer is directed to deposit a sum of Rs.14 01 000 before the Tribunal along with interest at the rate of 7.5% per annum from the date of claim petition till the date of realization within eight weeks from today. On such deposit being made the same shall be disbursed to the claimants appellants in the same proportion as directed by the Tribunal in Award dated 27.02.2016 The appeal is accordingly disposed of. There shall be no order as to costs 19. Before parting with the judgment we may notice that a large number of claim petitions under the provisions of the Motor Vehicles Act 1988 are being filed before the various Claims Tribunals established thereunder throughout the country. Against the awards of the Tribunals appeals are filed under Section 173 of the Motor Vehicles Act 1988 before the relevant High Court either by the claimants or by the insurers and owners of the offending vehicles. Large number of such appeals are pending before the various High Courts. Having regard to the above we are of the view that in order to curtail the pendency before the High Courts and for speedy disposal of the appeals concerning payment of compensation to the victims of road accident it would be just and proper to consider constituting ‘Motor Vehicle Appellate Tribunals’ by amending Section 173 of the Motor Vehicles Act so that the appeals challenging the award of a Tribunal could be filed before the Appellate Tribunal so constituted. The various Benches of such an Appellate Tribunal could consist of two Senior District Judges. To ensure access to justice and to avoid pendency it is also proper to consider setting up Benches of the Appellate Tribunal in various regional cities in addition to the capital city of each State as may be indicated by the relevant High Court. For this purpose appropriate rules governing the procedure of the Appellate Tribunal may also be framed. No further appeal against the order of the Appellate Tribunal need be provided. If any of the party is aggrieved by the order of the Appellate Tribunal he can always invoke the writ jurisdiction of the concerned High Court for appropriate reliefs Department of Justice Ministry of Law and Justice is requested to examine this matter. The Registry is directed to send a copy of this Judgement to the Secretary Department of Justice Ministry of Law and Justice forthwith. (S. ABDUL NAZEER (KRISHNA MURARI New Delhi December 08 2021

“Appellant Authority was of the opinion that the respondent has adequately addressed the query and no interference of this forum is warranted at this stage…”: 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 Ajmal Ali v CPIO, SEBI, Mumbai (Appeal No. 4366 of 2021) dealt with an issue in connection with Section 2 (f) of the Right to Information Act, 2005. The appellant, Mr Ajmal Ali had filed an application via RTI MIS Portal on the 14th of June, 2021 under the Right to Information Act, 2005. The respondent responded to the application by a letter on the 2nd of July, 2021, filed by the appellate. After receiving a letter from the respondent on 2nd of July, 2021, on his application, the appellate decided to file an appeal on the 12th of July, 2021. The appellant was seeking the following the information: The respondent in response to the application, informed that the queries are in the nature of seeking clarification/opinion and accordingly, cannot be construed as seeking “information”, as defined under section 2(f) of the RTI Act. However, the respondent informed that in the matter of GDR issuances by certain Indian listed companies, SEBI vide order dated June16, 2016 had, inter alia, issued directions to the depositories to freeze beneficiary accounts of certain entities. Accordingly, beneficiary accounts of Albula Investment Fund Ltd, Cresta Fund Ltd and APMS Investment Fund Ltd were frozen by the depositories. The appellant has filed the appeal on the ground that access to the requested information was refused.

Appeal No. 43621 BEFORE THE APPELLATE AUTHORITY Under the Right to Information Act 2005) SECURITIES AND EXCHANGE BOARD OF INDIA Appeal No. 43621 Ajmal Ali CPIO SEBI Mumbai The appellant had filed an application dated June 14 2021under the Right to Information Act 20056. If the depository accounts FPIs in question 1 are not Frozen has any actions been initiated depository accounts frozen. against the subject FPIs. The respondent in response to the application informed that the queries are in the nature of seeking clarification opinion and accordingly cannot be construed as seeking “information” as defined under section 2(f) of the RTI Act. However the respondent informed that in the matter of GDR issuances by certain Indian listed companies SEBI vide order dated June16 2016 had inter alia issued directions to the depositories to freeze beneficiary accounts of certain entities. Accordingly beneficiary accounts of Albula Investment Fund Ltd Cresta Fund Ltd and APMS Investment Fund Ltd were frozen by the Appeal No. 43621 depositories. information was refused. 4. Ground of appeal The appellant has filed the appeal on the ground that access to the requested 5. Query number 1 I have perused the query and the response provided thereto. It is understood that post examination investigation whenever violations are established appropriate enforcement actions are taken under provisions of the SEBI Act 1992 and Regulations framed thereunder which culminate in the issuance of orders and the same are available on the SEBI website. I am of the view that the information with respect to orders passed by SEBI can be found out by the appellant by accessing the information available in the public domain. 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 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. 6. Notwithstanding the above I note that the respondent has provided the information available with him regarding the order dated June 16 2016 passed by SEBI directing the depositories to freeze beneficiary accounts of Albula Investment Fund Ltd Cresta Fund Ltd and APMS Investment Fund Ltd. In view of these observations I am of the opinion that the respondent has adequately addressed the query and no interference of this forum is warranted at this stage. 7. Query numbers 2 3 4 5 and 6 On perusal of the queries it is observed that the queries are in the nature of seeking clarification opinion from the respondent. Further the appellant expects that the respondent should analyse the documents and then provide information to the appellant. 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. The respondent is only a communicator of information based on the records held in the office and hence he cannot be expected to do research work to deduce anything from the material therein and then supply it to him. In this context similar observations were made by the Hon’ble CIC in the matter of Shyam Chandra Shrivastava vs. CPIO Life Insurance Corporation of Indiaheld: “... we would also like to observe that under the Right to InformationAct the citizen has the responsibility to specify the exact information he wants he is not supposed to seek any opinion or comments or clarifications or interpretations from the CPIO…”. In view of these observations I do not find any deficiency in the response. I also note that the information regarding the order dated June 16 2016 passed by SEBI has already been provided by the 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. respondent. Place: Mumbai Date: August 06 2021 AMARJEET SINGH APPELLATE AUTHORITY UNDER THE RTI ACT SECURITIES AND EXCHANGE BOARD OF INDIA

Certificate of registration of stockbrokers canceled to prevent the misuse of membership – THE SECURITIES AND EXCHANGE BOARD OF INDIA

Certificate of registration of stockbrokers canceled to prevent the misuse of membership – THE SECURITIES AND EXCHANGE BOARD OF INDIA The stockbrokers registered under stock exchanges have been expelled from their membership by stock exchanges in terms of Section 12(1) of the Securities and Exchange Board of India Act, 1992 and Brokers regulation,1992, and certain conditions were granted to the stockbrokers including the condition that they continue to be a member of a recognized stock exchange. The current proceedings are conducted In the matter as the noticee qualifies for the grant of certificates. The proceedings are conducted by the appointed adjudication officer ANANTA BARUA WHOLE TIME MEMBER The noticee is no longer holding the certificates as the Certificate of Registrations as a stock broker have been granted to the Notices subject to the conditions of registration provided under Regulation 9 of the Broker Regulations, 1992. In this regard, the  Regulations 9(a) of the Broker Regulations, 1992, one of the conditions of registration is that the stockbroker holds the membership of any recognized stock exchange and as the noticee are no longer holding the certificate it can be said that the noticee no longer fulfills the condition under Regulation 9(a) of the Broker Regulations, 1992 by which Certificate of Registration was granted to the Notices. The current proceedings were initiated under Section 12(3) SEBI Act, 1992 read with Regulation 30A of the SEBI Regulations, 2008, and a show-cause notice was sent to notices as to why the certificate of registration granted under the Act or the regulations made thereunder, should not be canceled under Section 12(3) of the SEBI Act, 1992 read with Regulation 30A of the Intermediaries Regulations, 2008 and no reply was received from the notices. From the provisions of law and from the available facts it was considered that the Certificate of Registrations have been granted by SEBI to the Notices subject to, the conditions of registration under Regulation 9 of the Broker Regulations, 1992, and the stock exchanges have informed SEBI that the Notices were expelled from their membership by them and the same has been communicated to the Noticees. the Noticees have ceased to satisfy the conditions of registration stipulated under Regulation 9 (a) of Broker Regulations, 1992 and the procedure of cancellation of registration has been followed properly and therefore the member considers that the certificate of registration as a stock broker, granted to the Noticees under the SEBI Act, 1992 and the Broker Regulations, 1992, should be canceled under Section 12(3) of the SEBI Act, 1992 read with Regulation 30A of the Intermediaries Regulations, 2008. The following directions were also issued by exercising the powers conferred under Section 12(3) of the SEBI Act, 1992 read with Section 19 of the SEBI Act, 1992 and Regulation 30A of the Intermediaries Regulations, 2008, and registration of all 4 noticees was canceled. The main purpose for canceling the registrations was to prevent the misuse of their certificate of registration with SEBI, without being a member of a recognized stock exchange, on unaware investors and noticee will be held liable for the conduct of any such act. Hence the order was passed and will be enforced with immediate effect.

Order against certain Stock Brokers WTM AB MIRSD DoR 22 2021 22 SECURITIES AND EXCHANGE BOARD OF INDIA ORDER UNDER SECTION 12(3) OF THE SECURITIES AND EXCHANGE BOARD OF INDIA ACT 1992 READ WITH REGULATION 30A OF SEBI INTERMEDIARIES) REGULATIONS 2008 Name of Noticees 1. Conard 2. 3. KSBL Securities LimitedAAACK0784G 4. Credential 1. Conard Securities Private Limited Anee Securities Private Limited KSBL Securities Limited and Credential Stock Brokers Limited(hereinafter referred to as “Noticees”) are Stock Brokers registered with Securities and Exchange Board of Indiain terms of Section 12(1) of the Securities and Exchange Board of India Act 1992and SEBI Regulations 1992 hereinafter referred to as “Broker Regulations 1992”). The registration to the Noticees as a stock broker was granted subject to certain conditions including the condition that they continue to be member of a recognised stock exchange. At the time of grant of registration as stock broker the Noticees were trading members of the recognised Stock Exchanges the details of which are given hereunder: Order against certain Stock Brokers Name of the Stock Broker Stock Exchange Conard Securities Private Limited Anee Securities Private Limited KSBL Securities Credential Stock Brokers Limited BSE NSE MSEI NCDEX MCX BSE NSE MSEI PAN Number INZ000218639 AAHCC3679D INZ000209430 AAMCA2521M INZ000104638 AAACK0784G INB230903331 AABCC1868L NSE National Stock Exchange of India Limited BSE BSE Limited MSEI Metropolitan Stock Exchange of India Limited NCDEX National Commodity and Derivatives Exchange Limited MCX Multi Commodity Exchange of India Limited 2. These recognised stock exchanges where the Noticees were holding membership have informed SEBI that the Noticees have been expelled from their membership by them and the same has been communicated to the Noticees. The details of communication regarding their expulsion from membership of recognised stock exchange sent by the recognised stock exchanges to the Noticees are as under: Name of Stock Broker Stock Broker Date of Expulsion of Stock Broker Communication to the Conard Securities Private Limited Credential Stock Brokers Limited KSBL Securities Anee Securities Private Limited March 26 04 2019 28 2020 15 2020 March 03 19 2020 March 02 16 2020 03 2020 08 2020 3. In view of the above I note that the Noticees are no longer holding membership of any stock exchange. I note the Certificate of Registrations as stock broker have been granted to the Noticees subject to the conditions of registration provided under Regulation 9 of the Broker Regulations 1992. In this regard I note that under Regulations 9(a) of the Broker Regulations 1992 one of the conditions of registration is that the stock broker holds the membership of any recognized stock exchange. Since the Noticees are no longer holding membership of any recognized stock Order against certain Stock Brokers exchange they no longer fulfil the conditions stipulated under Regulation 9(a) of the Broker Regulations 1992 by which Certificate of Registration was granted to the Noticees. 4. In view of the aforesaid SEBI initiated proceedings under Section 12(3) SEBI Act 1992 read with Regulation 30A of the SEBIRegulations 2008 and vide SCNs dated September 03 2021 called upon the Noticees to show cause as to why the certificate of registration granted under the Act or the regulations made thereunder should not be cancelled under Section 12(3) of the SEBI Act 1992 read with Regulation 30A of the Intermediaries Regulations 2008. SCNs also advised the Notices to file their reply to SCN along with documentary evidence if any within 21 days from the date of receipt of the SCN and failing which it would be presumed that the Noticees have no reply to submit and the matter would be further proceeded with on the basis of the evidence available on record. 5. SEBI advised NSE to serve the SCNs to the Noticees. NSE informed that it had attempted to hand deliver the SCNs to the respective Noticees at their last known addresses. However in all cases it was observed that the premises or offices of the Noticees were locked or the officials were not available at the location. Therefore the SCNs were affixed by NSE at the respective premises of the Noticees as per their last known addresses available with NSE. The details of the last known address of the Noticees where attempts were made by NSE to hand deliver the SCN and where SCN were affixed and date of affixture of such SCNs are given below: Name of the Stock Broker Private Limited Anee Securities Private Limited KSBL Securities Date of affixture of November 03 2021 November 12 2021 October 27 2021 1509 Maker Chambers V Nariman Point Mumbai Maharashtra 2 41Virat Khand Gomti Nagar Lucknow Uttar Pradesh 226010 Plot No. 1 NaherColony B H Water Filling Plant Dhankot Gurgaon Haryana 122001 4 Order against certain Stock Brokers Credential Stock Brokers Limited D 20 Mansarover Garden New Delhi East Delhi 110027 October 27 2021 6. Further SCNs were also published on the website of NSE under the header Home>Invest>Resources & Tools>Regulatory Actions>SEBI. 7. I note that till date of this order no reply has been received from the Noticees. In view of this I proceed to determine the matter on the basis of the material available on record. In this regard I have considered the SCNs the relevant provisions of law and other details available on record. 8. Before dealing with the SCNs it would be appropriate to refer to the relevant extract of the provisions of law involved in the matter. The relevant extract of the provisions of the SEBI Act 1992 Intermediaries Regulations 2008 and Broker Regulations 1992 is reproduced herein below: Relevant extract of the provisions of the SEBI Act 1992: “ 12. Registration of stock brokers sub brokers share transfer agents etc 3) The Board may by order suspend or cancel a certificate of registration in such manner as may be determined by regulations: Provided that no order under this sub section shall be made unless the person concerned has been given a reasonable opportunity of being heard …..” Relevant extract of the provisions of the Intermediaries Regulations 2008: “ .30A. Special procedure for action on expulsion from membership of all the stock exchange(s) or clearing corporation(s) or termination of all the depository participant agreements with depository(ies). On receipt of intimation from all the stock exchange(s) or clearing corporation(s) of which the stock broker or clearing member as the case may be was a member that such stock broker or clearing member has been expelled from its membership the Board may issue a notice to such stock broker or clearing member calling upon the noticee to make its submission(s) if any within a period not exceeding twenty one days from the date of service thereof through a written reply along with documentary evidence as to why the certificate of Order against certain Stock Brokers registration granted under the Act or the regulations made thereunder should not be cancelled. No opportunity of personal hearing may be granted while disposing of the proceedings under this regulation. After considering the facts and circumstances of the case material on record and the written submissions if any the Board shall endeavor to pass an order within twenty days from the date of receipt of written submissions The Board may while passing such order impose such conditions upon the person as it deems fit to protect the interest of the investors or its clients or the securities market. The Board may require the person concerned to satisfy the Board the factors as it deems fit including but not limited to the following the arrangements made by the person for maintenance and preservation of records and other documents required to be maintained under the relevant regulations b) redressal of investor grievances c) transfer of records funds or securities of its clients d) the arrangements made by it for ensuring continuity of service to the clients e) defaults or pending action if any …..” Relevant extract of the provisions of the Broker Regulations 1992: “ …..Conditions of registration. 9. Any registration granted by the Board under regulation 6 shall be subject to the following conditions namely a) the stock broker holds the membership of any stock exchange ..” I note that the Noticees are registered with SEBI as Stock Brokers and holding SEBI Certificate of Registration under the Broker Regulations 1992 and are members of the stock exchanges as mentioned in para 1 above. I note that the Certificate of Registrations have been granted by SEBI to the Noticees subject to the conditions of registration under Regulation 9 of the Broker Regulations 1992 which inter alia provides that the stock broker must be a member of a recognised stock exchange. Order against certain Stock Brokers 10. I note that the stock exchanges have informed SEBI that the Noticees were their membership by them and the same has been communicated to the Noticees as mentioned in para 2 above. Therefore I note that the Noticees are no longer holding membership of any recognized stock exchange. Thus the Noticees have ceased to satisfy the conditions of registration stipulated under Regulation 9 of Broker Regulations 1992. I note from paras 4 to 7 that the procedure as required for cancellation of registration as stipulated in the Intermediaries Regulations 2008 has been followed. In view of the above I find that the certificate of registration as stock broker granted to the Noticees under the SEBI Act 1992 and the Broker Regulations 1992 should be cancelled under Section 12(3) of the SEBI Act 1992 read with Regulation 30A of the Intermediaries Regulations 2008. 11. In view of the foregoing I in exercise of the powers conferred under Section 12(3) of the SEBI Act 1992 read with Section 19 of the SEBI Act 1992 and Regulation 30A of the Intermediaries Regulations 2008 hereby cancel the certificate of registration of Conard Securities Private Limited INZ000218639) Anee Securities Private Limited KSBL Securities Limited and Credential Stock Brokers Limited 12. Irrespective of the cancellation of certificate of registration the respective Noticees shall continue to be liable for anything done or omitted to be done as stock broker and continue to be responsible for payment of outstanding fees and dues and interest if any due to SEBI. 13. The main purpose of cancellation of certificate of registration as stock broker of the Noticees is to prevent the misuse of their certificate of registration with SEBI without being a member of a recognized stock exchange on unaware investors. Thus Noticee shall continue to be liable for any action initiated or to be initiated as if their certificate of registration has not been cancelled and this order does not absolve the Noticees from any Order against certain Stock Brokers violation of the securities laws committed by the Noticees as registered stock 14. The Noticees shall ensure to arrange for maintenance and preservation of records and other documents required to be maintained under the relevant regulations redressal of investor grievances transfer of records funds or securities of its clients continuity of service to its clients and necessary actions with respect to the defaults or pending action if any. 15. The Noticees shall abide by the provisions referred in Regulation 30Aof Intermediaries Regulations 2008. 16. This Order comes into force with immediate effect. 17. A copy of this order shall be served upon all the Noticees and the Recognized Stock Exchanges to ensure necessary compliances. Date: February 14 2022 Place: Mumbai ANANTA BARUA WHOLE TIME MEMBER SECURITIES AND EXCHANGE BOARD OF INDIA Sd

Appellant alleged that the Kotak securities that have been pledged with Kotak Mahindra bank to obtain a bank loan has been forged.: 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 Vignesh Reddy Angadi v CPIO, SEBI, Mumbai (Appeal No. 4325 of 2021) dealt with an issue in connection with Section 2 (f) of the Right to Information Act, 2005. The appellant, Mr Suraj Joshi had filed an application via RTI MIS Portal on the 19th of May, 2021 under the Right to Information Act, 2005. The respondent responded to the application by a letter on the 14th of June, 2021, filed by the appellate. After receiving a letter from the respondent on 14th of June, 2021, on his application, the appellate decided to file an appeal on the 14th of June, 2021. In his application, the appellate was seeking the following information: “The Loan Against Securities is taken from Kotak Mahindra Bank and the documentation is forged and hence a second set is requested. Provide the procedures for Loan transactions as approved by the SEBI. Provide clarification on the Loan approvals and subsequent procedures.” The respondent, in response to the application, informed that the query is in the nature of seeking clarification/opinion and accordingly, the same cannot be construed as seeking “information”, as defined under section 2(f) of the RTI Act. The appellant has filed the appeal on the ground that the information provided was incomplete, misleading or false. The appellant, in his appeal, inter alia, alleged that the Kotak securities that have been pledged with Kotak Mahindra bank to obtain a bank loan has been forged. Hence the appellant requested verification of procedure from SEBI. On consideration, appellate authority agreed 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 Right to Information Act, 2005. It was found that the said queries cannot be construed as seeking ‘information’ as defined under section 2 (f) of the RTI Act. Consequently, the respondent did not have an obligation to provide such clarification under the RTI Act. In this context, reference is made to the matter of Vineet Pandey vs. CPIO, United India Insurance Company Limited (Judgment dated January 21, 2021), wherein similar observations were made by the Hon’ble CIC. Further, in the matter of Shri Shantaram Walavalkar vs. CPIO, SEBI (Decision dated January 17, 2013), it was noted that the Hon’ble CIC held: “… we would also like to observe that, under the Right to Information (RTI) Act, the citizen has the responsibility to specify the exact information he wants; he is not supposed to seek any opinion or comments or clarifications or interpretations from the CPIO…”. In view of these observations, the appellate authority found no deficiency in the response.

Appeal No. 43221 BEFORE THE APPELLATE AUTHORITY Under the Right to Information Act 2005) SECURITIES AND EXCHANGE BOARD OF INDIA Appeal No. 43221 Vignesh Reddy Angadi CPIO SEBI Mumbai The appellant had filed an application dated May 19 2021under the Right to Information Act 2005 of the RTI Act. 4. Ground of appeal The appellant has filed the appeal on the ground that the information provided was incomplete misleading or false. The appellant in his appeal inter alia alleged that the Kotak securities that have been pledged with Kotak Mahindra bank to obtain a bank loan has been forged. Hence the appellant requested verification of procedure from SEBI. Appeal No. 43221 5. 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 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. Further on perusal of the submission made by the appellant it appears that he has certain grievances regarding loan against securities taken from Kotak Mahindra Bank. I note that the Hon’ble CIC in the matter of Sh. Triveni Prasad Bahuguna vs. LIC of India Lucknowheld: “The Appellant is informed that … redressal of grievance does not fall within the ambit of the RTI Act rather it is up to the Appellant to approach the correct grievance redressal forum…”. In view of these observations I find that if the appellant has any grievance the remedy for the same would not lie under the provisions of the RTI Act. 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 15 2021 ANAND BAIWAR APPELLATE AUTHORITY UNDER THE RTI ACT SECURITIES AND EXCHANGE BOARD OF INDIA

The social report must be considered while deciding juvenile’s bail plea: Punjab & Haryana High Court

The decision for grant or rejection of bail shall be founded on the basis of the Social Investigation Report submitted by the Probation Officer and any other material available before the Board and not merely on the basis of records of the case and report filed under Section 173 Cr.P.C. of the investigation officer. This Judgment was held by P&H High Court in the case of Vishnu v. State of Haryana [CRR-233 of 2021 (O & M)] by Hon’ble Single Judge Bench Justice Suvir Sehgal. In the instant case, the Court was dealing with criminal application for setting aside of an order passed by the JJ Board, rejecting the Petitioner-child’s bail application and order of the Additional Sessions Judge, Rohtak whereby appeal filed against the said order has been dismissed. During the course of arguments, the respondents could neither show nor refer to any material to explain as to how in case the petitioner is enlarged on bail, would he be exposed to moral, physical or psychological danger or would come in contact with known criminals. While clearing the contentions the court points “in case a juvenile is found guilty and convicted, the maximum period that he can be ordered to spend in a Special Home under Section 18 (1) (f) of the Act is three years. The petitioner has spent more than one year in incarceration, therefore, no purpose would be served in detaining the petitioner any further” While allowing the bail application the learned court noted that the Petitioner found him to be a normal child, who appeared to have committed the offence under peer group influence. “It has been recorded in the report that his relations with his family members, friends, teachers and classmates are cordial. As per the report, the petitioner, who is a matriculate, comes across as a normal child. It has been further noticed that the petitioner is neither a member of any gang nor involved in drug peddling nor does he have any criminal past. The reason for the alleged offence has been given as peer group influence and the petitioner appears to be physically fit and mentally sound as reported by his family.”

on 03 06 CRR 23211 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRR 2321Date of decision :02.06.2021 Vishnu ...Petitioner Versus State of Haryana ...Respondent CORAM: HON BLE MR. JUSTICE SUVIR SEHGAL Present: Mr. Aditya Sanghi Advocate for the petitioner. Mr. Gurmeet Singh AAG Haryana. Ms. Amrita Garg Advocate for the complainant. SUVIR SEHGAL J. Petitioner who is a child in conflict with law has filed the instant petition through his father challenging the orders dated 15.01.2021 Annexure P 2 whereby application for grant of bail under Section 12 of the Juvenile JusticeAct 2015has been declined by the Principal Magistrate Juvenile Justice Board Rohtak and order dated 02.02.2021 passed by learned Additional Sessions Judge Rohtak whereby appeal filed against the said order has been dismissed. on 03 06 CRR 23212 Facts in brief are that on the basis of a complaint by Rajender FIR No.214 dated 28.05.2020 was registered under Section 201 302 34 of the Indian Penal Code and Section 3(vi) of Scheduled Castes and Scheduled TribesAct 1989on the allegation that Amit alias Neetu and the present petitioner have murdered his son Sombir. During investigation the petitioner and the co accused were apprehended on 28.05.2020 and they admitted their involvement in the homicide in their disclosure statement. Counsel for the petitioner has referred to the challan and submitted that the date of birth of the petitioner as per the school leaving certificate is 27.09.2014 and being a child in conflict with law he is entitled to be released on bail under Section 12 of the Act. He submits that there are no allegations qua the petitioner of having committed any offence under the SC & ST Act. According to him the accusation against the petitioner is that he caught hold of the deceased and inflicted injury on him with a wooden stick. He has relied upon a judgment passed by this Court in CRR 53 2021 titled as Vishvas vs. State of Punjab decided on 08.02.2021 to contend that as the Courts below have not adverted to the Social Investigation Report the impugned orders cannot be sustained. Opposing the petition State counsel who is assisted by the counsel for the complainant upon instructions from SI Bhagat Singh submits that the petitioner inflicted the injury on the head of the deceased and a blood stained wooden stick as well as a motorcycle used in the crime have been recovered from the petitioner. As per his instructions challan has been presented on 23.07.2020 charge has been framed on 10.03.2021 and the trial is fixed for 03.06.2021 for recording of statement of prosecution on 03 06 CRR 23213 witnesses though none of the witnesses has appeared in the witness box so far. He submits that if the petitioner is released on bail there is a likelihood of his coming in contact with criminals. According to the respondents an application for re determining the age of the petitioners is pending before the Trial Court. I have considered the rival submissions of the counsel for the parties and perused the paper book with their able assistance. A coordinate Bench of this Court in Vishvas’s casehas held that application under Section 12 of the Act cannot be decided without taking into consideration of the Social Investigation Report of a juvenile submitted by the Probation Officer as per the proforma contained in the rules framed under the Act and other materials available before the Juvenile Justice Board. This judgment was delivered after the impugned order had been passed in appeal by the Appellate Court. Though normally the matter should be remanded for fresh decision in the light of the said judgment yet the objective behind the statute has to be kept in mind which provides that a child friendly approach is required to be adopted in the adjudication and disposal of matters in the best interest of children and that the justice delivery system as available for adults is not suitable for being applied to a juvenile or a child in conflict with law. Moreover considering the fact that the petitioner was less than 16 years of age on the date of alleged occurrence and also that he has been in custody for the last more than 01 year this Court proceeds to examine the Social Investigation Report4 a matriculate comes across as a normal child. It has been further noticed that the petitioner is neither a member of any gang nor involved in drug peddling nor does he have any criminal past. The reason for the alleged offence has been given as “peer group influence” and the petitioner appears to be physically fit and mentally sound as reported by his family. The result of the report which has been submitted by the Legal cum Probation Officer District Child Protection Unit Rohtak deserves to be noticed: “ RESULT OF INQUIRY 1. Emotional factors normal as per family 2. Physical condition fit as per family 3. Intelligence normal 4. Social and economic factors normal 5. Suggestive cause of the problems peership effect in a dispute 6. Analysis of the case including reasons contributing factors for the offence 7. Opinion of experts consulted n.a. 8. Recommendation regarding rehabilitation by Probation Officer Child Welfare Officer Counselling may be required Sd Signature of Probation Officer Child Welfare Officer social Worker Legal Cum Probation Officer stamp and seal available District Child Protection Unit Rohtak” Grant of bail to a child in conflict with law is a rule and rejection of the same is an exception. Section 12 of the Act provides that notwithstanding anything contained in the Code of Criminal Procedure or in any other law for the time being inforce except for the three contingencies specified in proviso to Section 12of the Act the grant of bail to a child in conflict with law cannot be declined. The Courts have even gone to the on 03 06 CRR 23215 extent of holding that neither the gravity of the offence nor the fact that the co accused are yet to be apprehended is a ground to reject the prayer. The Courts below have failed to appreciate the legal position of law which has been followed by this Court in CRR 862 2020 titled as Vishal vs. State of Haryana decided on 27.05.2020 and CRR 962 2020 titled as Sanjiv vs. State of Haryana decided on 02.07.2020. During the course of arguments the respondents could neither show nor refer to any material to explain as to how in case the petitioner is enlarged on bail would he be exposed to moral physical or psychological danger or would come in contact of known criminals. Mere apprehension of the prosecution without there being any material on record would not be sufficient to decline the prayer for grant of bail. It may also be noticed that in case a juvenile is found guilty and convicted the maximum period that he can be ordered to spend in a Special Home under Section 18(f) of the Act is three years. The petitioner has spent more than one year in incarceration therefore no purpose would be served in detaining the petitioner any further. As a sequel to the above discussion the revision petition is accepted the impugned order dated 15.01.2021 passed by the Principal Magistrate Juvenile Justice Board Rohtak as well as order dated 02.02.2021 passed by the Additional Sessions Judge Rohtak are hereby set aside. Without adverting to the merits of the case at this stage the petitioner is ordered to be released on bail on his furnishing bail surety bonds to the satisfaction of the trial Court Chief Judicial Magistrate Judicial Magistrate concerned. on 03 06 CRR 23216 The father of the petitioner who has filed the instant petition shall regularly monitor the movement of the petitioner and ensure that he does not come in association with any known criminals and does not indulge in any other offence. He will also ensure that the petitioner is taken for counseling as has been recommended by the Probation Officer in the Report Mark A. 02.06.2021 sheetal JUDGE Whether Speaking reasoned : Yes No Whether Reportable : Yes No

Detention rendered invalid, infracted a Constitutional right guaranteed to the petitioner under Article 22(5) of the Constitution: The High Court of Jammu & Kashmir and Ladakh

The detaining authority is required to communicate to the detenue, (i) grounds of detention; (ii) all the documents referred to in the grounds of detention; (iii) all the documents and material which the detaining authority considers while framing his subjective satisfaction; (iv) detention order and also the police report or dossier if any. The aforesaid has been established by the High Court of Jammu & Kashmir and Ladakh while adjudicating the case of Latief Ahmad Rather v. Union Territory of J&K & anr.[ WP(Crl.) No.25/2020] which was decided upon by a single judge bench comprising Justice Sanjay Dhar on 2nd November 2021. The facts of the case are as follows. Petitioner has been placed under preventive detention and lodged in Kotbhalwal Jail, Jammu. Petitioner has contended that the Detaining Authority has passed the impugned detention order mechanically without application of mind, inasmuch as the grounds of detention are mere reproduction of the dossier. It has been further contended that the Constitutional and Statutory procedural safeguards have not been complied with in the instant case. It has been further urged that the material which formed basis of the grounds of detention and the consequent order of detention has not been provided to the detenue. 3) The respondents, in their counter affidavit, have disputed the averments made in the petition and insisted that the activities of detenue are highly prejudicial to the security of the State. It is pleaded that the detention order and grounds of detention were handed over to the detenue and same were read over and explained to him. The grounds taken by the petitioner are legally misconceived, factually untenable and without any merit. The court perused the facts and arguments presented. It was of the opinion that “the petitioner has not been furnished the material which formed the basis of the grounds of detention. It appears that the material showing involvement of petitioner in the five FIRs which formed basis for the grounds of detention has not been furnished to the petitioner. Thus, vital safeguards against arbitrary use of law of preventive detention have been observed in breach by the respondents in this case rendering the impugned order of detention unsustainable in law. there has to be a live and proximate link between the past conduct of the detenue and the activities alleged to be prejudicial to the maintenance of security of the state. In the instant case, the said link is completely missing as the time between the order of detention and the incidents referred to in the grounds of detention is far too large to presume such a link. The impugned order of detention, therefore, cannot be sustained. The respondents by not informing the petitioner about his right to make a representation to the detaining authority against the impugned order of detention, are guilty of committing infraction of a Constitutional right guaranteed to the petitioner under Article 22(5) of the Constitution and the statutory right guaranteed to him under Section 13 of the J&K Public Safety Act. The impugned order of detention is, therefore, rendered invalid and unsustainable in the eyes of law.”

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Reserved on: 12.10.2021 Pronounced on:02.11.2020 WP(Crl.) No.25 2020 Latief Ahmad Rather Through: Mr. S. T. Hussain Sr. Adv. with Ms. Nida Nazir Advocate. Union Territory of J&K & anr. …Respondent(s) Through: Mr. B. A. Dar Sr. AAG. CORAM: HON’BLE MR. JUSTICE SANJAY DHAR JUDGE By the instant petition quashment of order No.DMBA PSA 01 of 2020 dated 27.01.2020 issued by District Magistrate Budgamis sought. In terms of the aforesaid order Latief Ahmad Rather son of Habibullah Rather resident of Badipora Rather Mohalla Chadoora Budgamhas been placed under preventive detention and lodged in Kotbhalwal Jail Jammu. Petitioner has contended that the Detaining Authority has impugned detention order mechanically without application of mind inasmuch as the grounds of detention are mere reproduction of the dossier. It has been further contended that the 2 WP(Crl.) No.25 2020 Constitutional and Statutory procedural safeguards have not been complied with in the instant case. It has been further urged that the material which formed basis of the grounds of detention and the consequent order of detention has not been provided to the detenue. The respondents in their counter affidavit have disputed the averments made in the petition and insisted that the activities of detenue are highly prejudicial to the security of the State. It is pleaded that the detention order and grounds of detention were handed over to the detenue and same were read over and explained to him. The grounds taken by the petitioner are legally misconceived factually untenable and without any merit. 4) Despite several opportunities the respondents have not produced the detention records in order to buttress the contentions raised in the counter affidavit. I have heard learned counsel for parties and perused the material on record. Learned counsel for the petitioner while seeking quashment of the impugned order projected various grounds but his main thrust during the course of arguments was on the following grounds: I) That the detenue’s right of making an effective representation against his detention has been violated as the material on the basis of which the grounds of 3 WP(Crl.) No.25 2020 detention have been formulated has not been supplied to II) That the impugned order of detention is based upon stale incidents having no proximate link to the activities alleged to be prejudicial to the maintenance of public order. III) That the petitioner was not informed about his right to make a representation against the order of detention before the detaining authority. The first ground projected by the learned counsel for the petitioner that the detenue has been disabled from making an effective representation against the order of detention as the material which formed base of the grounds of detention and the consequent order of detention has not been furnished to him appears to have substance. The respondents have along with their counter affidavit placed on record a copy of the execution report according to which the detenue has been provided copy of detention warrantgrounds of detentioncopy of dossier and other related documents No.25 2020 of the material relied upon by the detaining authority while framing the grounds of detention has not been supplied to him appears to be well In the cases of preventive detention a detenue has the right under Article 22(5) of the Constitution to be furnished with particulars of the grounds of his detention. The Supreme Court has in Ram Krishan Bhardwaj v. State of Delhi AIR 1953 SC 318 while interpreting Article 22(5) of the Constitution observed that furnishing of grounds of detention means material sufficient to enable the petitioner to make an effective In Shalini Soni v. Union of India 4 SC 544 the Supreme Court has observed that ‘grounds’ in Article 22(5) do not mean mere factual inferences but means factual inferences plus factual material which led to such factual inferences. The Court further clarified that copies of the documents to which reference is made in the grounds must be supplied to the detenue as part of the grounds. 10) Thus the detaining authority is required to communicate to the detenue grounds of detention all the documents referred to in the grounds of detention all the documents and material which the detaining authority considers while framing his subjective satisfaction iv) detention order and also the police report or dossier if any. 11) The word ‘grounds’ used in clause of Article 22 of the Constitution means not only the narrations or conclusions of facts but also all materials on which those facts or conclusions which constitute grounds 5 WP(Crl.) No.25 2020 are based. Such material has to be supplied to the detenue so as to enable him to make an effective and meaningful representation. The detaining authority is obliged to mention in the grounds as to on which material it has based its satisfaction. Failure to do so renders the detention illegal. To communicate the bare grounds of detention to the detenue will not be sufficient unless grounds are accompanied by material which the detaining authority has considered and relied upon. For this support can be had from the judgment of this Court in the case of Nazeer Ahmad Sheikh vs. Additional Chief Secretary Home 1999 SLJ 241. 12) As already noted the petitioner has not been furnished the material which formed the basis of the grounds of detention. It appears that the material showing involvement of petitioner in the five FIRs which formed basis for the grounds of detention has not been furnished to the petitioner. Thus vital safeguards against arbitrary use of law of preventive detention have been observed in breach by the respondents in this case rendering the impugned order of detention unsustainable in law. It has been further contended by learned counsel for the petitioner that the impugned order of detention has been passed on the basis of stale incidents having no proximate link with the activities alleged to be prejudicial to the maintenance of public order. 14) A perusal of the grounds of detention reveals that the incidents referred therein pertain to the years 2012 2013 and 2017 that is more than 6 WP(Crl.) No.25 2020 three years prior to the passing of impugned order of detention. There is no reference to any recent incident involving the petitioner in the grounds of detention. Thus it is clear that the order of detention has been based on past and stale incidents. In fact the incidents and FIRs which formed basis of the grounds of detention have been the basis of earlier detention of petitioner which was made in terms of order No.DMB PSA 018 dated 09.01.2018 a copy whereof has been placed on record by the petitioner. There is no rebuttal to the contention of the petitioner that he was detained previously under the aforesaid order. Thus using the same grounds and material for passing subsequent detention order without actually mentioning that the petitioner had been previously detained on the basis of this very material not only amounts to an illegality but also shows lack of application of mind on the part of the detaining authority. 15) The Supreme Court in the case of Sama Aruna v. State of Telengana and & anr 12 SCC 150 while holding that the incidents which are said to have taken place long back cannot form basis for being satisfied that the detenue is going to engage in similar activities observed as under: “17. We are therefore satisfied that the aforesaid detention order was passed on grounds which are stale and which could not have been considered as relevant for arriving at the subjective satisfaction that the detenu must be detained. The detention order must be based on a reasonable prognosis of the future behavior of a person based on his past conduct in light of the surrounding circumstances. The live and proximate link that must exist between the past conduct of a person and the imperative need to detain him must be taken to have been snapped in this case. A detention order which is founded on stale incidents must be regarded as an order of punishment for a crime passed without a trial though purporting to be an order of 7 WP(Crl.) No.25 2020 preventive detention. The essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it.” From the aforesaid enunciation of the law on the subject it is clear that there has to be a live and proximate link between the past conduct of the detenue and the activities alleged to be prejudicial to the maintenance of security of the state. In the instant case the said link is completely missing as the time between the order of detention and the incidents referred to in the grounds of detention is far too large to presume such a link. The impugned order of detention therefore cannot be sustained. 16) Next it has been contended that the petitioner has not been informed about his independent right to make a representation against his detention to the detaining authority as well. 17) A perusal of the Annexure II appended to the writ petition reveals that the detaining authority vide its communication dated 27.01.2020 informed the petitioner that he has a statutory right to make representation against the said detention order to the Government. This clearly shows that the detaining authority has failed to inform the detenue about his independent right to file representation against his detention to the detaining authority while informing him about his right to file a representation against the detention order to the Government. 18) As already noted the impugned detention order was passed on 27.01.2020 and as per reply affidavit filed by the respondents the same 8 WP(Crl.) No.25 2020 was approved by the Government on 28.02.020. Thus until the said date i.e. 28.02.2020 the detaining authority in terms of Section 21 of the General Clauses Act was empowered to revoke the order of detention but because the petitioner detenue was not informed by the respondents about his right to make a representation to the detaining authority obviously he could not make a representation to the detaining authority thereby depriving him of a vital constitutional statutory right. In my aforesaid view I am fortified by the judgment of this Court in Tariq Ahmad Dar v. State of J&K & Ors. LPA No. 43 2017 2017S.L.J 665 wherein a Hon’ble Division Bench of this Court has while relying upon the Kamlesh Kumar Ishwardas Patel v. Union of India 1995) 4 SCC 51 observed as under: “15. From a reading of the said decision it is abundantly clear that non communication of the fact that the detenu can make a representation to the Detaining Authority till the detention order is not approved by the Government would constitute an infraction of a valuable Constitutional right guaranteed under Article 22(5) of the Constitution of India as also of the right under Section 13 of the Jammu and Kashmir Public Safety Act 1978. Failure of such non communication would invalidate the order of detention. 17. In view of the foregoing we need not to consider any of the other pleas sought to be raised by the learned counsel for the appellant inasmuch as the detention order has been invalidated because of non communication of the fact that the detenu could make a representation to the Detaining Authority. The detention order having become invalid the detenu is liable to be released forthwith insofar as this detention order is concerned.” 11. The aforesaid ratio is applicable to the facts of the instant case on all fours. Thus it can safely be stated that the respondents by not 9 WP(Crl.) No.25 2020 informing the petitioner about his right to make a representation to the detaining authority against the impugned order of detention are guilty of committing infraction of a Constitutional right guaranteed to the petitioner under Article 22(5) of the Constitution and the statutory right guaranteed to him under Section 13 of the J&K Public Safety Act. The impugned order of detention is therefore rendered invalid and unsustainable in the eyes of law. 20) Viewed thus the petition is allowed and the impugned order of detention bearing No.DMB PSA 01 of 2020 dated 27.01.2020 issued by respondent No.2 District Magistrate Budgam is quashed. The detenue is directed to be released from the preventive custody forthwith provided he is not required in connection with any other “Bhat Altaf PS” Judge Whether the order is speaking: Yes No Whether the order is reportable: Yes No

A police officer cannot investigate a non-cognizable offence without the order of a Magistrate of the first or second class having power to try such case: High Court of J&K and Ladakh

The expression “investigation” has different connotations than the expression “inquiry”. Section 4(h) of Cr. P. C defines “investigation” as proceedings under the Code or the collection of evidence conducted by a police officer or by any person other than a Magistrate who is authorized by a Magistrate in this behalf as observed by the Hon’ble High Court of J&K through the learned bench of Justice Sanjay Dhar in the case of Aasim Farooq Shah Vs Mohammad Yousuf Hakeem & Anr [CRMC No.51/2018] Briefly stated, the facts emerging from the material on record are that a complaint came to be filed by respondent No.1 against the petitioner before the Chief Judicial Magistrate, Srinagar, wherein it was alleged that the petitioner had forged a document purportedly issued by Ethical Committee on Human/Animal Subjects Research SKIMS Hospital, Srinagar. According to respondent No.1, the complainant had obtained information under the Right to Information Act from the Department of Community Medicine, SKIMS, Srinagar, informing that the certificate of Ethical Committee had not been issued by the SKIMS (Trust) Hospital. Also, respondent No.1 had approached Police Station, Crime Branch, prior to the filing of the application before Chief Judicial Magistrate, Srinagar, but the Crime Branch, after obtaining a report from SKIMS, Srinagar, closed the complaint as no cognizable offense was found to have been made out against the petitioner herein. The petitioner has challenged the impugned order dated 29.12.2017 passed by learned Chief Judicial Magistrate, Srinagar, on the grounds that once a complaint of respondent No.1 against the petitioner was closed, it was not open to the learned Magistrate to direct inquiry into the same; that from the contents of the complaint made by respondent No.1, no offense is made out against the petitioner; that the publication which is the subject matter of the complaint stands already retracted by the petitioner and that the same has not been used by the petitioner to get any benefit, as such, no offense is made out against the petitioner and that the impugned order has been passed by the learned Magistrate in a mechanical manner and without application of mind. After hearing the learned counsels for the parties and perusing the facts on record, the High court observed that as per section 155(2) of Cr. P. C, it is clear that a police officer cannot investigate a non-cognizable offense without the order of a Magistrate of the first or second class having the power to try such a case. The Hon’ble High Court stated that “The expression “inquiry” is quite distinct from the expression “investigation”. The expression “inquiry” is defined in Section 4(g) of Cr. P. C as including every inquiry other than a trial conducted under the Code by a Magistrate or a Court, meaning thereby that “inquiry” includes only such type of proceedings which are sanctioned by any provision of the Code. Section 202 of Cr. P. C empowers a Magistrate either to inquire into the case himself, or direct an inquiry to be made by any Magistrate subordinate to him, or by a police officer, or by such other person as he thinks fit for the purpose of ascertaining the truth or falsehood of the complaint. Such an inquiry can be directed by a Magistrate only after taking cognizance of an offense on the basis of a complaint and after recording substance of examination of the complainant and his witnesses on oath.”

HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT Item No.80 Advance List CRMC No.51 2018 AASIM FAROOQ SHAH ...PETITIONER(S) Through: Mr. Salih Pirzada Advocate. MOHAMMAD YOUSUF HAKEEM & ANR. …RESPONDENT(S) Through: Mr. Shakir Haqani Advocate for R 1. Mr. B. A. Dar Sr. AAG for R2. CORAM: HON’BLE MR. JUSTICE SANJAY DHAR JUDGE Petitioner has challenged order dated 29.12.2017 passed by Chief Judicial Magistrate Srinagar whereby learned Magistrate has directed respondent No.2 to enquire into the matter relating to the complaint filed by respondent No.1 against the petitioner. Briefly stated the facts emerging from the material on record are that a complaint came to be filed by respondent No.1 against the petitioner before the Chief Judicial Magistrate Srinagar wherein it was alleged that the petitioner had forged a document purportedly issued by Ethical Committee on Human Animal Subjects Research SKIMS Hospital Soura Srinagar bearing No.SKIMS ETC Dent 2015 04 dated 09.04.2015 with seal and signature of Dr. Imtiyaz Ali Chairman and 2 CRMC No.51 2018 bearing the embossed logo of the SKIMS testifying a certificate in the name of petitioner herein that the research project mentioned therein has been granted ethical approval. According to the respondent No.1 the complainant had obtained information under Right to Information Act from the Department of Community Medicine SKIMS Soura Srinagar informing that the certificate of Ethical Committee had not been issued by the SKIMSHospital. It was further informed that as per records no IEC Committee ever existed in SKIMS. Respondent No.1 also placed on record a copy of the research article bearing the title “Transition in Dental Treatment Utilization in Jammu and Kashmir Indian A ten years retrospective study” by petitioner published in “Nepal Journal of Epidemiology” referring to the clearance of aforesaid Ethical Committee. It appears that the respondent No.1 had approached Police Station Crime Branch prior to filing of application before Chief Judicial Magistrate Srinagar but the Crime Branch after obtaining report from SKIMS Soura Srinagar closed the complaint as no cognizable offence was found to have been made out against the petitioner herein. The petitioner has challenged the impugned order dated 29.12.2017 passed by learned Chief Judicial Magistrate Srinagar on the grounds that once complaint of respondent No.1 against the petitioner was closed it was not open to the learned Magistrate to direct enquiry into the same that from the contents of the complaint made by respondent No.1 no offence is made out against the petitioner that the publication which is subject matter of the complaint stands already retracted by the petitioner 3 CRMC No.51 2018 and that the same has not been used by the petitioner to get any benefit as such no offence is made out against the petitioner and that the impugned order has been passed by the learned Magistrate in a mechanical manner and without application of mind. I have heard learned counsel for the parties and perused the record including the preliminary verification record submitted by Crime Branch The allegation in complaint that was made by the respondent No.1 before the Chief Judicial Magistrate Srinagar is that the petitioner had forged a document purportedly issued by Ethical Committee on Human Animal Subjects Research SKIMS Hospital Soura Srinagar bearing No.SKIMS ETC Dent 2015 04 dated 09.04.2015. According to the petitioner the information obtained by him under Right to Information Act reveals that the said document is forged and has not been issued by the Ethical Committee. It is not the case of the complainant that the petitioner has used this document for getting any benefit or that any benefit has been obtained by him on the basis of the said document. In fact there is material on record of the preliminary verification file to show that the petitioner has retracted the paper which was published in Nepal Journal of Epidemiology and while closing the case on the basis of earlier complaint made by respondent No.1 the Crime Branch has concluded that the publication would not have been of any help to the petitioner as on that date the publication had been withdrawn and as such it had become irrelevant. Even otherwise contents of the complaint if 4 CRMC No.51 2018 taken at their face value disclose commission of offence of forgery punishable under Section 464 RPC. The said offence is non cognizable in nature. So the Crime Branch rightly did not entertain the complaint of respondent No.1 Now the question arises as to whether learned Chief Judicial Magistrate had the jurisdiction to direct the Crime Branch Kashmir to undertake enquiry into the complaint alleging commission of a non cognizable offence. In order to decide this issue it will be profitable to notice the provisions contained in Section 155 of Cr. P. C: “155. Information in non cognizable cases.—(1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non cognizable offence he shall enter in a book to be kept as aforesaid the substance of such information and refer the informant to the Magistrate having power to try such case or commit the same for trial. 2) Investigation into non cognizable cases.—No police officer shall investigate a non cognizable case without the order of a Magistrate of the first or second class having power to try such case or commit the same for trial. 3) Any police officer receiving such order may exercise the same powers in respect of the investigation except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case. From a perusal of sub sectionquoted above it is clear that a police officer cannot investigate a non cognizable offence without the order of a Magistrate of the first or second class having power to try such case. In the instant case the learned Magistrate vide the impugned order has asked the Crime Branch to enquire into the matter. There is no direction or permission granted by the Magistrate to investigate the case. 5 CRMC No.51 2018 The expression “inquiry” is quite distinct from the expression “investigation”. The expression “inquiry” is defined in Section 4(g) of Cr. P. C as including every inquiry other than a trial conducted under the Code by a Magistrate or a Court meaning thereby that “inquiry” includes only such type of proceedings which are sanctioned by any provision of the Code. Section 202 of Cr. P. C empowers a Magistrate either to inquire into the case himself or direct an enquiry to be made by any Magistrate subordinate to him or by a police officer or by such other person as he thinks fit for the purpose of ascertaining the truth or falsehood of the complaint. Such an enquiry can be directed by a Magistrate only after taking cognizance of an offence on the basis of a complaint and after recording substance of examination of complainant and his witnesses on 10) The expression “investigation” has different connotations than the expression “inquiry”. Section 4(h) of Cr. P. C defines “investigation” as proceedings under the Code or the collection of evidence conducted by a police officer or by any person other than a Magistrate who is authorized by a Magistrate in this behalf. 11) So there is a clear distinction between expression “inquiry” and “investigation”. While the inquiry can be directed by a Magistrate after taking cognizance of an offence and after recording preliminary statements of complainant and the witnesses the investigation into a non cognizable offence can be directed by a Magistrate at pre cognizance stage authorizing the police to undertake investigation. 6 CRMC No.51 2018 12) The impugned order passed by the learned Chief Judicial Magistrate cannot be treated to be one under Section 155(2) of the Code as it does provide for investigation of the case but it only directs inquiry into the matter. Such a direction could have been passed by the learned Magistrate only after taking cognizance of the offence. Therefore the impugned order passed by the learned Magistrate is without jurisdiction and the same exhibits non application of mind on the part of learned 13) For the foregoing reasons the petition is allowed and the impugned order passed by the learned Magistrate is set aside. However it shall be open to the complainant to approach the learned Magistrate for getting his statement and those of his witnesses recorded whereafter the learned Magistrate may proceed further in the complaint in accordance with law. 14) Copy this judgment be sent to learned Magistrate for information. 15) Record of preliminary verification be returned to the learned counsel for the respondent No.2. Sanjay Dhar) Judge “Bhat Altaf PS” Whether the order is speaking: Yes No Whether the order is reportable: Yes No

Complainant failed to prove the genuineness of her Payment, thus Complaint dismissed: Karnataka State Consumer Disputes Redressal Commission

The Complainant claimed that she had paid Rs 2,50,000 to the Opposite Party and that the same was reflected in her Pass Book. The original receipt number and the one she presented before the Commission did not tally. This fact was overlooked by the District Commission. This was observed in the matter of The President, Mandya City Govt. Employees House Building v. G. Leela, [ First Appeal No. A/2121/2017], heard before, Hon’ble Presiding Member Mr. Ravishankar and Hon’ble Member Mrs. Sunita Channabasappa Bagewadi. The brief facts of the dispute are as follows; the complainant had paid Rs.2,50,000/- to the Opposite Parties’ Society for the allotment of the site. After paying the stated amount, the opposing parties did not provide a site, so she requested a refund of the amount.  However, the OPs have postponed refunding the stated amount for various reasons. As a result, she complained to the District Commission in Mandya about deficiency of service. Following the filing of the complaint, the Opposite Parties appeared before the District Commission and denied all of the allegations contained in the complaint. After the trial, the District Commission granted the complaint and ordered the opposing parties to pay Rs.2,50,000/- plus interest, costs, and compensation. The appellant has filed a complaint with this Commission because he was dissatisfied with the said order. After hearing the arguments from both the sides, the Court found out that, that the complainant asserted that she paid an amount of Rs.2,50,000/- towards the allocation of the site to opposing parties and that she produced one pass book before the District Commission to show that they had supported for receipt of the said amount However, she has not presented the original receipt to the District Commission. There is an entry in the Passbook that she has paid an amount of Rs.2,50,000/- and it represents that receipt number11000, however when they examined the original receipt number, 11000, it stands in the name of one Manohara and was issued by the OP No.1 Society towards enrolment of the membership. The receipt number mentioned in the passbook and the original receipt do not match. The learned counsel for the appellant strongly contended that the complainant was a member of the Society, and that according to the rules, she was assigned one site in exchange for a consideration amount, and that the site was registered in her name in 1999. She was no longer eligible to join another site and to become a member. The Commission held that, “we suspect a doubt with respect to the genuinenity of the Passbook. We are of the opinion that the passbook may be created by the Ex-Secretary of the Society who was under trial for misappropriation and cheating………. the complainant had not produced the original document to show that she had paid an amount of Rs.2,50,000/- to the Society even after registering a site in the year 1999 itself. Therefore, the order passed by the District Commission lacks legality. The District Commission failed to appreciate the original receipt produced by the Respondent which stands in the name of one Manohar. As such the order requires to be set-aside.”

KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION BASAVA BHAVAN BANGALORE First Appeal No. A 2121 2017 Date of Filing : 27 Oct 2017 Arisen out of Order Dated in Case No. of District 1. The President Mandya City Govt. Employees House Building Co operative Society Ltd. B.M.Rudrappa s Mangaiah Mansion Ashoknagar Mandya 571401 2. The Secretary Mandya City Govt. Employees House Building Co operative Society Ltd. B.M.Rudrappa s Mangaiah Mansion Ashoknagar Mandya 571401 1. G. Leela W o K.N.Krishna Murthy Aged about 63 years R a No.2357 3rd cross Gandhinagar Mandya HON BLE MR. Ravishankar PRESIDING MEMBER HON BLE MRS. Smt.Sunita Channabasappa Bagewadi MEMBER Dated : 08 Oct 2021 Final Order Judgement THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION BANGALORE. (ADDL. BENCH DATED THIS THE 8 DAY OF OCTOBER 2021 1 SRI RAVI SHANKAR JUDICIAL MEMBER SMT. SUNITA C.BAGEWADI MEMBER APPEAL NO. 2121 2017 1. The President Mandya City Govt. Employees House Building Co Operative Society Ltd. B.M.Rudrappa’s Mangaiah Mansion Ashoknagar Mandya 571 401 2. The Secretary Mandya City Govt. Employees House Building Co Operative Society Ltd B.M.Rudrappa’s Mangaiah Mansion Ashoknagar Mandya 571 401 By Shri. Prasanna Kumar S.Y. Adv. Versus G. Leela W o K.N.Krishna Murthy Aged about 63 years R at No.2357 2 Cross Gandhinagar Mandya By Shri. K.V.Narasimhan Adv. BY SRI.RAVI SHANKAR JUDICIAL MEMBER The Opposite Parties in C.C.No.680 2015 preferred this appeal against the order dated:28.09.2017 passed by the Mandya District Consumer Commission which directed them to pay an amount of Rs.2 50 000 along with interest @ 10% p.a. from 23.05.2005 till realization along with compensation of Rs.5 000 and cost of Rs.2 000 . The brief facts of the complaint is that: The complainant had paid Rs.2 50 000 towards allotment of the site from Opposite Parties’ Society. After payment of the said amount the Opposite Parties have not given a site for which she demanded for refund of the amount paid towards allotment of the site. But the OPs for one or other reason have dragged to refund the said amount. Hence she approached the District Commission at Mandya alleging deficiency in service. After filing the complaint the Opposite Parties appeared before the District Commission and denied all the averments made in the complaint. After trial the District Commission allowed the complaint and directed the Opposite Parties to pay Rs.2 50 000 with interest along with cost Being aggrieved by the said order the appellant is before this Commission We have heard the arguments from both sides On going through the memorandum of appeal certified copy of the impugned order and documents produced before the District Commission we noticed that the complainant alleged that she paid an amount of Rs.2 50 000 towards allotment of the site to Opposite Parties and before the District Commission she produced one pass book to show that they have endorsed for receipt of the said amount. But she has not produced the original receipt before the District Commission. On the other hand there is entry in the Passbook that she has paid an amount of Rs.2 50 000 and it reflects that receipt number as 11000 whereas when we perused the original receipt number 3 11000 it stands in the name of one Manohara which was issued by the OP No.1 Society towards registration of the membership. The said receipt number mentioned in the passbook and original receipt are not tally each other. Further the learned counsel for appellant vehemently argued that the complainant was a member to the Society and as per the norms they have allotted one site by receiving consideration amount and the site was registered in her name in the year 1999 itself. There afterwards she has not entitled to get another site and also not permissible to become a member. Further argued that one of the Secretaries of the Society was misused the documents of the Society in order to gain wrongfully the passbook was concocted in her name and claimed for the said amount. In this regard they have a lodged a complaint against the said previous Secretary of the Society. The same was admitted by the complainant Of course we agree the arguments submitted by the learned counsel for the appellant. The documents clearly establish that the complainant had allotted a site and registration was executed in her favour in the year 1999 itself. The bylaw also discloses that once the site was allotted to a member the same member cannot apply for another site. Accordingly we suspect a doubt with respect to the genuinenity of the Passbook. We are of the opinion that the passbook may be created by the Ex Secretary of the Society who was under trial for misappropriation and cheating On the other hand the complainant had not produced the original document to show that she had paid an amount of Rs.2 50 000 to the Society even after registering a site in the year 1999 itself. Therefore the order passed by the District Commission lacks legality. The District Commission failed to appreciate the original receipt produced by the Respondent which stands in the name of one Manohar. As such the order requires to be set aside. Accordingly we proceed to pass the following: The appeal is allowed. No costs The impugned order dated:28.09.2017 passed by the Mandya District Consumer Commission in C.C.No.680 2015 is hereby set aside. Consequently the complaint filed by the complainant is hereby dismissed The amount in deposit shall be transmitted to the District Commission to disburse the same to the appellant Ops Send a copy of this order to both parties as well as Concerned District Commission Sd Sd Member. Judicial Member 4 HON BLE MR. Ravishankar HON BLE MRS. Smt.Sunita Channabasappa Bagewadi 5

LOC cannot be issued in every case by claiming that ‘economic interest’ or ‘larger public interest’ of India at stake: High Court of New Delhi

Phrases such as ‘economic interest’ or ‘larger public interest’ cannot be expanded in a manner so as to include an Independent Director who was in the past associated with the company being investigated, without any specific role being attributed to him, as in the present case. It is clear from a perusal of clauses (g) (h) and (j) of Office Memorandum that unless and until the conditions in these clauses are satisfied, prima-facie an LOC cannot be opened. This was held in BRIJ BHUSHAN KATHURIA v. UNION OF INDIA & ORS. Through[W.P.(C) 3374/2021] in the High Court of New Delhi by a bench consisting of JUSTICE PRATHIBA M. SINGH. Facts are that the petitioner is a CA, who was inducted in the Board of M/s Techpro Systems Limited, as a Non-Executive Independent Director, CIRP was initiated against M/s Techpro Systems Limited, and on the Resolution Plan was approved by the NCLT. Petitioner in the petition has challenged the Look Out Circular issued against him by Respondents, the Ministry of Corporate Affairs and the Serious Fraud Investigation Office and has prayed for the same to be quashed. The counsel for the petitioner submitted that a copy of the LOC has not been given to the Petitioner. It is submitted that the settled position in law is that unless and until an FIR is registered or a cognizable offense is made out, the LOC would be liable to be quashed or set aside, as it curtails the liberty of the petitioner to travel in and out of India. Reliance is placed on three judgments including Sumer Singh Salkan v. Asst. Director & Ors. The counsel for the respondents submits the Petitioner is guilty of conniving and conspiring with the Promoters of M/s Tech pro-Systems Limited. Petitioner is a Chartered Accountant and was part of the Audit Committee. Independent Directors have a greater obligation in such companies. Thus, it is submitted that the Petitioner ought not to be permitted to travel abroad, outside the jurisdiction of this Court. The court relied on the judgement of Delhi High court in, Sumer Singh Salkan v. Asst. Director & Ors., and made the following observations, “The position prior to the issuance of the two Office Memoranda was that recourse to the LOC can only be taken when there is a cognizable offense under the IPC/other penal law. The reason for opening the LOC also had to be provided in the said LOC. The settled legal position, as per the judgment in Sumer Singh Salkan (supra) is that unless and until there is an FIR which is lodged or a criminal case which is pending, an LOC cannot be issued.” The court also referred to the judgement of Delhi High court in,  Nitin Sandesara v. Directorate of Enforcement and Ors., wherein the following observations were made, “…g) Recourse to LOC is to be taken in cognizable offences under IPC or other penal laws. The details in column IV in the enclosed proforma regarding ‘reason for opening LOC’ must invariably be provided without which the subject of a LOC will not be arrested/detained. h) In cases where there is no cognizable offense under IPC or other penal laws, the LOC subject cannot be detained/arrested or prevented from leaving the country. The originating agency can only request that they be informed about the arrival/departure of the subject in such cases.” The court made reference to Office Memorandum dated 27th October 2010, as well as the amended Office Memorandum dated 5th December 2017 by which clause ‘j’ was amended, and set out herein below, which now states, “j) In exceptional cases, LOCs can be issued without complete parameters and/or case details against CI suspects, terrorists, anti/national elements etc. in the larger national interest.”

48 IN THE HIGH COURT OF DELHI AT NEW DELHI BRIJ BHUSHAN KATHURIA W.P.(C) 3374 2021 UNION OF INDIA & ORS. Date of decision: 12th April 2021 Petitioner Through Ms. Maninder Acharya Sr. Advocate with Mr. Siddharth Bhatli Mr. Abhishek Choudhary and Mr. Abhiyant Singh Advocates M: 9899423924 & 8860346700) Respondents Through Mr. Rakesh Kumar CGSC with Mr. Raghav Nagar Swasti Aggarwal Advocates for Respondents SFIO M: 9711588506) Mr. Nitin Srivastav Investigating M: 9599569957) JUSTICE PRATHIBA M. SINGH Prathiba M. Singh J.(Oral) This hearing has been done through Video Conferencing. CM APPL. 10253 2021The Petitioner in the present petition has challenged the Look Out Circularissued against him by Respondent Nos 3 and 4 i.e. the Ministry of Corporate Affairsand the Serious Fraud Investigation Office and prays for the same to be quashed. W.P.(C) 3374 2021 3. The brief background of the matter is that the Petitioner is a Chartered Accountant who was inducted in the Board of M s Techpro Systems Limited as a Non Executive Independent Director in the Annual General Meeting dated 26th September 2007. The Petitioner is working in Oman and relocated there on 24th October 2009. He is stated to have resigned from the post of Independent Director of M s Techpro Systems Limited on 13th January 2015 due to his full time employment in Oman and health concerns. In 2017 Corporate Insolvency Resolution Proceedings were initiated against M s Techpro Systems Limited and on 5th May 2019 the Resolution Plan was approved by the NCLT. 4. The case of the Petitioner is that he had travelled to India on 2nd February 2021 and was scheduled to fly back to Oman on 21st February 2021. However he was stopped at the airport and was intimated about the LOC which has been issued against him at the behest of the SFIO. The Petitioner was F. No. SFIO INV TSL 1304 2020 by the SFIO on 23rd February 2021 through WhatsApp to personally appear before the Investigating Officer on 2nd March 2021. This matter was heard in part on 17th March 2021. Ms. Maninder Acharya ld. Sr. Counsel submits on behalf of the Petitioner that a copy of the LOC has not been given to the Petitioner. Reliance is placed upon Office Memorandum dated 27th October 2010 and the amendments carried out therein vide Office Memorandum dated 5th December 2017. It is submitted that the settled position in law is that unless and until an FIR is registered or a cognizable offence is made out the LOC would be liable to be quashed or set aside as it curtails the liberty of the Petitioner to travel in and out of India. Reliance is placed on the following three judgments orders: • Sumer Singh Salkan v. Asst. Director & Ors. No. 1315 2005 decided on 11th August 2010] W.P.(C) 3374 2021 • Nitin Sandesara v. Directorate of Enforcement and Ors. 7559 2017 Order dated 29th August 2018] and • Deept Sarup Aggarwal v. Union of India 5382 2020 decided on 2nd December 2020]. It is further submitted that the Petitioner’s entire family resides in Delhi NCR. The wife of the Petitioner is a Senior citizen who lives in Delhi NCR. Both his daughters also live in Delhi NCR. Out of the two daughters one of the daughters is married. The younger daughter is unmarried and lives with the Petitioner and his wife. The Petitioner also has several immovable properties in Delhi NCR. Details of the bank accounts and bank statements of the Petitioner and his two daughters have already been submitted to the SFIO. 7. It is argued on behalf of the Petitioner that the Petitioner was only a Non Executive Independent Director in M s Techpro Systems Limited from 2007 to 2015 and has no role to play in the day to day management of the company. None of the allegations against the company or its promoters can be saddled upon the Petitioner. On behalf of the Respondents a note has been handed over in a sealed cover on the status of the investigation. This Court has perused the said note. The overall allegations being confidential in nature it is merely recorded that the investigation is currently on going. The Petitioner has also appeared before the SFIO on various dates and made detailed statements on oath which have also been placed on record. 9. The submission of Mr. Rakesh Kumar ld. counsel appearing for the Respondents is that the Petitioner is guilty of conniving and conspiring with the Promoters of M s Techpro Systems Limited. It is submitted that the W.P.(C) 3374 2021 Petitioner is a Chartered Accountant and was part of the Audit Committee. The fraud in the present case according to the Respondents is of several thousands of crores and accordingly the Petitioner ought not to be permitted to travel abroad. It is further submitted that there are six to seven LOCs which have been issued against the Promoters and Directors of M s Techpro Systems Limited and the LOC issued against the Petitioner is only one of them. M s Techpro Systems Limited is a listed company and Independent Directors have a greater obligation in such companies. Thus it is submitted that the Petitioner ought not to be permitted to travel abroad outside the jurisdiction of this Court. 10. At this stage the Court is merely considering the question as to whether the LOC deserves to be stayed i.e. whether the interim relief is to be granted. The pleadings are yet to be completed. The admitted facts insofar as the Petitioner is concerned are as under: The Petitioner is employed in Oman. His certificate of employment has been placed on record and he has been working there since 2009. ii) The Petitioner’s wife and children reside in Delhi NCR. iii) The Petitioner has several immovable properties in Delhi NCR a list of which has been submitted to the SFIO. iv) The Petitioner has been asked by his employer in Oman to immediately join back duty. 11. It is submitted that the Petitioner’s travel to India was part of his employment and he was stopped from travelling back to Oman on 21st February 2021. The LOC has admittedly been issued in January 2021. However the Petitioner was not given notice of the same. The Petitioner W.P.(C) 3374 2021 SFIO. entered India on his own volition and not in response to any summons by the 12. Heard. The MCA vide order dated 10th August 2020 commenced investigation against M s Techpro Systems Limited under Section 212 c) of the Companies Act 2013 pursuant to which the LOC was issued. Issuance of LOCs is currently under the Office Memorandum issued by the Ministry of Home Affairs i.e. dated 27th October 2010 along with the amendment dated 5th December 2017. The legal position in respect of LOCs is governed by the judgment of this Court in Sumer Singh Salkanwhich is relied upon by the Petitioner. The position prior to the issuance of the two Office Memoranda was that recourse to the LOC can only be taken when there is a cognizable offence under the IPC other penal law. The reason for opening the LOC also had to be provided in the said LOC. 13. A perusal of the LOC which had been placed on record in a sealed cover shows that in so far as the Petitioner is concerned no reason has been specifically mentioned in the LOC. 14. Office Memorandum dated 27th October 2010 is extremely clear that a reason has to be given for opening the LOC. The fact that there is no reason provided in the present case is quite telling. Moreover at this point of time there is also no FIR lodged against the Petitioner and even the role of the Petitioner is under investigation. Under such circumstances the question is whether the Petitioner’s everyday life can be put on a standstill. An LOC has the effect of seriously jeopardising the right to travel of an individual. The settled legal position as per the judgment in Sumer Singh Salkan supra) is that unless and until there is an FIR which is lodged or a criminal case which is pending an LOC cannot be issued. W.P.(C) 3374 2021 15. In Nitin SandesaraOffice Memorandum dated 27th October 2010 was considered by a learned Single Judge. The ld. Single Judge of this Court had in the said case also observed as under: “11. Mr Kripal learned counsel for the petitioner has also drawn the attention of this court to the Office Memorandum dated 27.10.2010 which refers to the judgement dated 11.08.2010 passed by this court in Sumer Singh Salkan v. Asst director & Ors: W.P. no. 1315 2008 and sets down the guidelines for issuance of LOC. Paragraph 8(g) and of the said OM are relevant and are set out below: In accordance with the order dated 26.7.2010 of the High Court of Delhi the matter has been discussed with the concerned agencies and the following guidelines are hereby laid down regarding issuance of LOCs in respect of Indian citizens and foreigners: xxxx xxxx xxxx g) Recourse to LOC is to be taken in cognizable offences under IPC or other penal laws. The details in column IV in the enclosed proforma regarding reason for opening LOC must invariably be provided without which the LOC will h) In cases where there is no cognizable offence under IPC or other penal laws the LOC subject cannot be detained arrested or prevented from leaving the country. The originating agency can only request that they W.P.(C) 3374 2021 be informed about the arrival departure of the subject in such cases. Xxxx xxxx xxxx" 12. In the present case the LOC does not indicate any credible reason for issuing the same. Plainly recourse to LOC cannot be taken as a matter of course restricting the right of a citizen to travel is a serious imposition on his her fundamental rights and even if it is assumed that such action is permissible in law it can be taken only when necessary and for good reason. 13. This Court also finds it difficult to understand the conduct of the officers of the Enforcement Directorate. Admittedly the petitioner had joined the investigations and had appeared before the concerned officers as Notwithstanding the same a request for LOC was issued and the petitioner was not even informed of such LOC. Notwithstanding the legality or validity of the LOC the petitioner would have taken that into account before making his travel plans. The petitioner became aware of the LOC at 11.00 PM on 22.08.2017 when he was about to board a required by 16. Recently in Deept Sarup Aggarwalthe amendment dated 5th December 2017 to the Office Memorandum dated 27th October 2010 which contains the amended clause was also considered by the Court. The Court held that an LOC cannot be issued in every case by claiming that the same would affect the ‘economic interest’ of India. 17. The relevant clauses of the Office Memorandum dated 27th October W.P.(C) 3374 2021 2010 as well as the amended Office Memorandum dated 5th December 2017 by which clause ‘j’ was amended are set out herein below: Office Memorandum dated 27th October 2010 “g) Recourse to LOC is to be taken in cognizable offences under IPC or other penal laws. The details in column IV in the enclosed proforma regarding reason for opening LOC must invariably be provided without subject of an LOC will not be h) In cases where there is no cognizable offence under IPC or other penal laws the LOC subject cannot be detained arrested or prevented country. The originating agency can only request that they be informed about the arrival departure of the subject in such cases. j) In exceptional cases LOCs can be issued without complete parameters and or case details against CI suspects terrorists anti national elements etc. in larger national interest.” “In exceptional cases LOCs can be issued even in such cases as would not be covered by the guidelines above whereby departure of a person from India may be declined at the request of any of the authorities mentioned in clauseof the above referred OM if it appears to such authority based on inputs received that the departure of such person is detrimental to the sovereignty or security or integrity of Indian or that the same is detrimental to the bilateral relations with any country or to the strategic and or economic interests of India or if such person is allowed to leave he may potentially indulge in an act of terrorism or offences against the State and or that such departure ought not be Office Memorandum dated 27th October 2010 as amended on 5th December 2017 “Amendment W.P.(C) 3374 2021 permitted in the larger public interest at any given point in time.” Instead of: “In exceptional cases LOCs can be issued without complete parameters and or case details against CI suspects terrorists anti national elements etc. in larger national interest.” It is clear from a perusal of clauses(h) andthat unless and until the conditions in these clauses are satisfied prima facie an LOC cannot be opened. 18. There is no criminal case pending against the Petitioner. His role is also yet to be ascertained by the investigating authorities. Phrases such as ‘economic interest’ or ‘larger public interest’ cannot be expanded in a manner so as to include an Independent Director who was in the past associated with the company being investigated without any specific role being attributed to him as in the present case. The Petitioner poses no flight risk given the fact that his wife and children are residents of Delhi NCR. This Court is inclined to suspend the operation of the LOC subject to the following conditions: i) The Petitioner shall present himself in the Indian Embassy in Oman on the 1st and 3rd Monday of every month. The Petitioner shall file an undertaking in this Court which would be supported with an undertaking by his wife that the Petitioner would be present before the authorities upon being issued 15 days’ notice. Insofar as the immovable properties are concerned the immovable properties in the list emailed to the Court Master today W.P.(C) 3374 2021 i.e. at items 1 to 4 shall not be transferred alienated by the Petitioner his family who may have rights in the same. Copies of the documents relating to the properties shall be filed in Court in a sealed cover within two weeks. seeking leave from the Court. iv) The Petitioner’s wife shall not leave India without 19. Application is disposed of. This order has been passed in the peculiar facts of this case and shall not be taken as being applicable to any other Director of M s Techpro Systems Limited. W.P.(C) 3374 2021 20. Counter affidavit be filed within six weeks. Rejoinder be filed within four weeks thereafter. 21. Both the sealed envelopes shall be retained in sealed covers and tagged with the physical record. The same shall not be scanned. 22. List on 13th August 2021. APRIL 12 2021 corrected and released on 15th April 2021) PRATHIBA M. SINGH W.P.(C) 3374 2021

Dismissal of complaint u/S 203 Cr.P.C if no substantial evidence is adduced: Delhi High Court

In matter surrounding requirement of evidence u/S 203 of Cr.P.C., the bench constituting Suresh Kumar Kait J. of the Delhi High Court has concluded in Kusum Lata v State of NCT of Delhi [CRL.M.C.-1880/2020] that the complaint registered under the said secrion shall be liable to be dismissed if no substantial evidence is presented therewith. On 29.10.2009, son of the petitioner got married to respondent and since then, they were residing peacefully at the first floor of the said property. Since 2018, the respondent started causing problems for petitioner and her husband and used to fight with them asking them to transfer the rights of all their movable, immovable properties and business of husband of petitioner to the husband of respondent and herself. Thereafter on 18.06.2018, husband of the petitioner made a complaint against respondent alleging that they forcibly entered into the house of the petitioner and threatened them of dire consequences, subsequently subjected them to abuse, manhandle, defamation, mental torture, harassment, etc. however, no action was taken by police, petitioner filed a revision petition under section 397 before the District & Sessions Judge, Patiala House Courts. The Action Taken Report revealed that police control room had not received any calls regarding the incident dated 12.08.2018. The police record of entries 12.08.2018 received from the RTI were also filed before learned ASJ, Patiala House Courts, Delhi, however, without applying judicial mind, learned ASJ dismissed the revision petition of the petitioner The court observed that the Learned Metropolitan Magistrate has dismissed the application of the petitioner under section 156(3) Cr.P.C. by observing that all the facts leading to the complaint are within the knowledge of the complainant. Even identity of the accused is known to the complainant, evidence is within reach and no custodial interrogation is required. Further the bench also noted that, “There is no ground on which the assistance of the police is required. Further, if at any stage the court is of the opinion that investigation in the matter is required, the court will be within its power to order investigation u/s 202 of Cr.P.C., and this order shall in no way bar such investigation at latter stage.” The Court has further relied upon the case of Gulab Chand Upadhyaya vs. State of UP & Ors.: 2002 SCC OnLine All 1221 wherein Allahabad High Court observed that the option to direct the registration of the case and its investigation by the police should be exercised where some “investigation” is required, which is of a nature that is not possible for the private complainant, and which can only be done by the police upon whom statute has conferred the powers essential for investigation.

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: Pronounced on: 19.04.2021 CRL.M.C. 1880 2020 KUSUM LATA Petitioner Through Ms.Neha Kapoor Adv. with Mr.Mohit Bhadu Adv. STATE OF NCT OF DELHI & ORS. Through Mr.Panna Lal Sharma APP for State. Respondents Mr.Vikram Singh Adv. with Mr.Bhanu Pant & Ms.Smita Singh Advs. for R 2 to 12. HON BLE MR. JUSTICE SURESH KUMAR KAIT JUDGMENT The present petition has been preferred under section 227 of the Constitution of India read with section 482 Cr.P.C. seeking setting aside of the order dated 28.02.2020 passed by learned Special Judge NDPS Act Patiala House CourtDelhi in CR No.159 2019 titled as ‘Kusum Lata vs. Shikha & Ors.’ dismissing the revision petition of the petitioner and upholding the order dated 03.01.2019 passed by learned MM rejecting the Crl.M.C.1880 2020 application of the petitioner filed under section 156(3) Cr.P.C. Petitioner further seeks directions to be issued to respondent no.1 for registration of FIR against respondent nos.2 to 12. The brief facts of the case as narrated in the present petition are that petitioner is the mother in law of respondent no.2 and owner of the property situated at RZ 38 39 184 Gali No.2 Durga Park New Delhi 110045 which consists of two floors where petitioner is residing with her husband. On 29.10.2009 son of the petitioner got married to respondent no.2 and since then they were residing peacefully at the first floor of the said property. Since 2018 respondent no.2 started causing problems for petitioner and her husband and used to fight with them asking them to transfer the rights of all their movable immovable properties and business of husband of petitioner to the husband of respondent no.2 and herself. On 17.06.2018 the petitioner and her husband disentitled their son from all their properties by publishing it in the newspaper of ‘Indian Express’ and ‘Jansatta’. Thereafter on 18.06.2018 husband of the petitioner made a complaint against respondent nos.2 to 8 alleging that they forcibly entered into the house of the petitioner and threatened them of dire consequences subsequently subjected them to abuse manhandle defamation mental Crl.M.C.1880 2020 torture harassment etc. however no action was taken by police. Thereafter on 27.06.2018 just to avoid any more dispute between petitioner and respondent no.2 petitioner’s son took a rented accommodation and decided to shift along with respondent no.2 and their children however respondent no.2 refused to leave the said property and again called respondent nos.3 to 8 who threatened the petitioner and her husband. On 28.06.2018 respondent no.2 called the police and made a complaint and after receiving the complaint police called the petitioner her husband husband of respondent no.2 and respondent nos.3 & 4 to Police Station Sagarpur. The police did not take any action and asked respondent nos.3 & 4 to take respondent no.2 to their home and thus respondent no.2 went to her parent’s home with her relatives and vacated the said property. The son of the petitioner had already shifted to the rented accommodation and vacated the portion of the said property which was in their possession and petitioner had the possession of the whole property. On the morning of 29.07.2018 respondent no.2 came to the said property with a large group of people including respondent nos.3 to 12 to forcibly take possession of the said property and threatened the petitioner and her husband but it was of no avail as the neighbours of the petitioner Crl.M.C.1880 2020 helped and protected them from respondent no.2. The whole incident was recorded in the CCTV camera installed in the said property. After the above mentioned incident on 07.08.2018 husband of the petitioner again made a complaint to the SHO Sagarpur Police Station against the respondents alleging that they forcefully entering into their house with intent to assault and threatened to kill but again no action was taken by the police. Thereafter in the night of 12.08.2018 at around 11:40 pm all the respondents with other 10 15 people came to the said property and tried to forcefully break open the main door and illegally enter inside the house of the petitioner. Respondent no.2 broke open the lock on the main gate with hammers and other equipment. The whole incident was recorded in the CCTV camera but respondent no.2 broke the CCTV camera with stick as she knew location of the camera but before she could break the camera it had recorded the faces of the respondents. Thereafter all the respondents illegally and forcefully entered into the property broke many articles and stole Rs.60 000 along with jewellery of the petitioner. In this manner respondent no.2 took possession of the ground floor of the property then the petitioner made a PCR call but it was of no avail. Thereafter husband of the petitioner again made a complaint to the SHO Sagarpur Police Station on Crl.M.C.1880 2020 15.08.2018. He also made complaint to DCP Vasant Vihar on 16.08.2018 and 15.09.2018 however again no action was taken on the complaints of the husband of the petitioner and due to which he made a complaint to the Commissioner of Police on 03.09.2018 mentioning that he had made more than 50 calls to PCR at 100 number for help. He had also made calls to the mobile number of SHO PS Sagarpur ACP DCP but no response was given and the abovesaid persons were beating his gates manhandles them and they also molested the petitioner and threatened of dire consequences. In addition to above he had come to know that the officials of PS Sagarpur had joined hands with the abovesaid persons who did not even bother to come on the spot to rescue them from the clutches of the abovesaid persons. Moreover his son was booked by the SHO PS Sagarpur in a false case of Kalandra and he got released on bail on 13.08.2018. He had all call records of PCR and other police officials who did not pick his phone and joined hands with respondents. Again he neither received any response nor any action was taken by the police on the complaints of the husband of the petitioner therefore petitioner filed a complaint under section 200 Cr.P.C. along with an application under section 156(3) Cr.P.C. before learned Metropolitan Magistrate Patiala House Court Delhi seeking direction Crl.M.C.1880 2020 thereby to register a case against the respondents. During the proceedings SI Ashok Kumar Police Station Sagarpur had submitted an Action Taken Report on 03.01.2019 before learned Metropolitan Magistrate Court and after perusing the Action Taken Report the application of the petitioner was dismissed vide order dated 03.01.2019. Being aggrieved petitioner filed a revision petition under section 397 Cr.P.C. being CR No.159 19 titled as “Kusum Lata vs. Sikha & Ors.” before the District & Sessions Judge Patiala House Courts Delhi with the Action Taken Report filed by SI Ashok Kumar before learned Metropolitan Magistrate along with photos of the incident dated 29.07.2018 and 12.08.2018. As the Action Taken Report revealed that police control room had not received any calls regarding the incident dated 12.08.2018 from the husband of the petitioner husband of the petitioner filed an application under Right to Information Act seeking copy of the records of the Delhi Police Control Room containing entries from the mobile number 9873318182 2 SCC 1 therefore FIR ought to have been registered in the instant case. Counsel for the petitioner submits that the present matter is not a matrimonial dispute as the husband of the respondent no. 2 was disentitled Crl.M.C.1880 2020 from all his rights in the properties of petitioner and her husband vide publication dated 17.06.2018 and further the respondent no. 2 and her husband had vacated the said property on 28.06.2018. therefore respondent no. 2 had no right in the said property. 10. To strengthen her arguments counsel for the petitioner has relied upon the case of S.R. Batra & Anr. vs. Smt. Taruna Batra:3 SCC 169 wherein it was held that the wife is only entitled to claim a right to residence in a shared household and a shared household would only mean the house belonging to or taken on rent by the husband or the house which belongs to the joint family of which the husband is a member. The property in question in the present case neither belongs to husband nor was it taken on rent by him nor is it a joint family property of which the husband is a member. It is the exclusive property of mother in law of respondent no.2 petitioner herein). Hence in the present petition the house in question belongs to the petitioner and respondent no.2 was residing at a rented accommodation along with her husband and cannot claim any right in the said property more so when her husband has been disentitled from the property and is not residing therein. 11. Counsel for the petitioner further submits that identities of all the Crl.M.C.1880 2020 accused persons were not within the knowledge of the petitioner as the contents of the CCTV footage clearly show that there were around 9 10 persons whose identities were unknown to the petitioner and police investigation is required to find out the identities of those unknown people. 12. He further submits that learned ASJ has wrongly relied upon the Action Taken Report filed by the IO and erred in giving a finding that the dispute is of matrimonial nature. The ATR does not mention anything about the dispute on the night of 12.08.2018 which happened at the said property and which is clearly visible in the CCTV footage and thus could not be looked into for passing the impugned order judgment. It is also submitted that in the ATR as per the records no calls were received from the petitioner or her husband and ignored the copies of the Police Control Room Entries received through RTI filed by the petitioner which clearly show that the petitioner or her father had made various calls to the police regarding the incident dated 12.08.2018 seeking protection. Moreover learned Additional Sessions Judge Metropolitan Magistrate have ignored the gravity of the offence committed by the respondents and wrongly considered the incident as a matrimonial dispute when there are also allegations of robbery in the instant case and admittedly Crl.M.C.1880 2020 the petitioner cannot find the robbed articles. 13. On the other hand learned Additional Public Prosecutor for State has relied upon the ATR submitted by SI Ashok Kumar of Police Station Sagarpur on 03.01.2019 wherein it was submitted that as per record available on 12.08.2018 at 03:46 pm a PCR call vide DD No.31A was received regarding “lady ke sasural wale jhagda kr rahe hain aur ghar se bahar nikal rahe hain” at RZ 38 184 Gali No.2 Durga Park New Delhi. Same call was marked to ASI Jagbir who reached at the spot and met with PCR caller Smt.Shikha as per direction of senior officers. On 13.08.2018 at about 10:01 am another PCR call was received regarding Crl.M.C.1880 2020 “lady caller ko sas sasur mar rahe hain” at the said address. Same call was marked to SI Ajeet Singh for taking necessary action SI Ajeet reached at the spot and met with PCR caller Smt.Shikha and she filed her complaint regarding matrimonial dispute. Complaint was received and sent to CAW cell for counselling and complainant had refused to medical examination before the EO. Hence there is a matrimonial dispute between respondent no.2 and her in laws. As per available records on 12.08.2018 and 13.08.2018 no PCR call was received from petitioner herein and her husband. Abovesaid complaint has already been filed on 01.09.2018. 14. Learned APP further submitted that in regard to the application which the petitioner moved under section 156(3) Cr.P.C. before learned MM which was dismissed with the observation that there is no ground on which the police may be directed to register the FIR the request under section 156(3) Cr.P.C. is declined as all the facts and circumstances are within the knowledge of the complainant including identity of the accused as well as the name and address of the concerned witnesses. Thus there is no ground on which the assistance of the police is required. Further if at any stage the court is of the opinion that investigation in the matter is required the Court is within its power to order investigation under section 202 Cr.P.C. and Crl.M.C.1880 2020 impugned order shall in no way bar such investigation at latter stage. 15. Learned APP for State has relied upon the case of Skipper Beverages Pvt. Ltd. vs. State: 2001 SCC OnLine Del 448 wherein this Court exemplified that the power under section 156(3) Cr.P.C. is to be exercised by a Magistrate judiciously and not in a mechanical manner by observing as “Section 156(3) of the Code empowers a Magistrate to to register a case and the police investigations but to be exercised this power has judiciously on proper grounds and not in a mechanical manner. In those cases where the allegations are not very serious and the complainant himself is in possession of evidence to prove his allegations there should be no need to pass orders under Section 156(3) of the Code.” 16. He has further relied upon the case of Gulab Chand Upadhyaya vs. State of UP & Ors.: 2002 SCC OnLine All 1221 wherein Allahabad High Court observed that the option to direct the registration of the case and its investigation by the police should be exercised where some “investigation” is required which is of a nature that is not possible for the private complainant and which can only be done by the police upon whom statute has conferred the powers essential for investigation. Moreover where there full details of the accused are not known to the complainant and the same Crl.M.C.1880 2020 can be determined only as a result of investigation. But where the complainant is in possession of the complete details of all the accused as well as the witnesses who have to be examined and neither recovery is needed nor any such material evidence is required to be collected which can be done only by the police no “investigation” would normally be required and the procedure of complaint case should be adopted. 17. Moreover in regard to the CDs DVDs which husband of the petitioner handed over in the Police Station which were analysed and after analysing on 29.07.2018 4 5 people were seen entering in the above mentioned house. On 12.08.2020 alleged Shikhaentered in the house over the main gate. Thereafter she opened the main gate and some people entered the petitioner’s house however nobody was seen entering forcefully or carrying iron rod stick etc. Neither any quarrel nor any scuffle was noticed. In meantime when the Main Gate was open it was noticed that 15 20 persons including 3 4 ladies were found standing in street in front of house of petitioner but nobody has entered in said house. Thereafter Shikhawho was already standing inside the house covered the camera installed inside the Main Gate of petitioner s house with the help of piece of cloth. In view of above facts Crl.M.C.1880 2020 learned APP submitted that the present petition deserves to be dismissed. I have heard learned counsel for both the parties and perused the material available on record. 19. Learned Metropolitan Magistrate has dismissed the application of the petitioner under section 156(3) Cr.P.C. by observing that all the facts leading to the complaint are within the knowledge of the complainant. Even identity of the accused is known to the complainant evidence is within reach and no custodial interrogation is required. The relevant portion of the order is reproduced for ready reference: “there is no justification for directing the police for registering the FIR request u s 156(3) Cr.P.C. is declined as all the facts and circumstances are within the knowledge of the complainant including identity of the accused as well as the name and address of the concerned witnesses. Thus there is no ground on which the assistance of the police is required. Further if at any stage the court is of the opinion that investigation in the matter is required the court will be within its power to order investigation u s 202 of Cr.P.C. and this order shall in no way bar such investigation at latter stage.” 20. Thereafter the learned Additional Sessions Judge while dismissing the revision petition of the petitioner upheld the order of learned Metropolitan Magistrate with the observation as under: “The main thrust of the allegations is that the respondent Crl.M.C.1880 2020 along with her family members forcibly entered in the house however the question of vacation of the house prior to this entering is disputable. The Action Taken Report filed by police categorically suggested that this is a matrimonial dispute which is also corroborated from the fact that there is no dispute between the in laws and daughter in law for about 09 years of marriage however dispute occurs only in the last one year. Considering the nature of allegations and dispute I do not find any ground to interfere in the discretion exercised by the Ld. trial court by dismissing the application u s 156 CrPC. Hence revision petition stands dismissed.” 21. At this stage it is relevant to reproduce section 156 of Cr.P.C. which is as under: “156. Police officer s power to investigate cognizable 1) 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. 2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. 3) Any Magistrate empowered under section 190 may order such an investigation as above mentioned.” It is clear from the scheme of section 156 where the police fail in its duty to register and investigate a cognizable offence the aggrieved person Crl.M.C.1880 2020 may file a complaint before the concerned Magistrate. Where the Magistrate receives a complaint the word may give a discretion to the Magistrate in the matter. Two courses are open to the Court either take cognizance under Section 190 or may forward the complaint to the police under Section 156(3) Cr.P.C. for investigation. 23. Likewise in the facts and circumstances of a particular case Magistrate may take cognizance on the basis of the complaint instituted before him and may adopt the procedure provided under sections 200 202 of Cr.P.C. and if there is no substance in the prima facie evidence adduced by the complainant the complaint may be dismissed under section 203 In view of above facts observation made by the courts below and the law discussed the material facts of the present case are well within the knowledge of the petitioner including the identity of the accused persons. Hence she can establish her case while leading evidence before the trial court under section 200 of Cr.P.C. Therefore I find no illegality or perversity in the orders passed by the Trial Court and Appellate Court. Crl.M.C.1880 2020 25. Finding no merit in the present petition the same is dismissed with no orders as to costs. APRIL 19 2021 SURESH KUMAR KAIT) JUDGE Crl.M.C.1880 2020

“Cherished Goal” of Arbitration is Finality of Arbitration Awards which Needs to be Fulfilled: High Court of New Delhi.

The equality in rate of interest, would be in consonance with one of the objectives of the Arbitration and Conciliation Act, 1996, namely, finality of arbitration awards. This honorable judgement was passed by High Court of New Delhi in the case of Guru Gobind Singh Indraprastha University v. Engineering India Ltd [FAO(OS) (COMM) 46/2021 & CM APPLs.10323-10325/2021 AND 10760/2021] by The Hon’ble justice Asha Menon and Hon’ble Justice Man Mohan. The appeal had been filed challenging the order that instead of granting a similar rate of interest @ 12% per FAO(OS) (COMM) 46/2021 Page 2 of 6 annum, had asked it to re-agitate the matter as per law despite appreciating that both the parties were to be treated on the same footing and pointed out that Section 34 of the Arbitration and Conciliation Act, 1996 allowed this Court to correct the Award at least to the extent of directing that same rate of interest shall be granted to both the parties and the amount of interest of Rs. 74.12 lakhs had been disallowed, and both the parties should have been permitted to re-agitate the matter before a freshly appointed arbitral tribunal. there is a calculation error in computing the external development charges by the Arbitrator inasmuch as the factum of the claimant completing only 41.9% work was not taken into account. The learned council referred the case of State of Goa vs. Praveen Enterprises, AIR 2011 SC 3814 and the case of M/s. L.G. Electronics India (P) Ltd v. Dinesh Kalra. The Court opinioned that, “in the present appeal, cannot examine the contention of the appellant qua any calculation error in computing the external development charges on the basis that the factum of the claimant completing only 41.9% work was not taken into account by the Arbitrator. if the matter is remanded to an arbitrator for fresh adjudication with regard to rate of interest, it would promote and not curtail litigation—an „end‟ which the Arbitration and Conciliation Act, 1996 seeks to discourage. In fact, this Court is of the opinion that if the argument of learned senior counsel for the appellant with regard to rate of interest is accepted, it would be in consonance with one of the objectives of the Arbitration and Conciliation Act, 1996, namely, finality of arbitration awards.”

IN THE HIGH COURT OF DELHI AT NEW DELHI FAO(OS)46 2021 & CM APPLs.10323 10325 2021 AND 10760 2021 GURU GOBIND SINGH INDRAPRASTHA UNIVERSITY Appellant Through: Mr. Mukul Talwar Senior Advocate with Ms. Anita Sahani Advocate. ENGINEERING INDIA LTD Through: Mr. Uday Gupta Advocate. ..... Respondent Date of Decision: 26th March 2021 HON BLE MR. JUSTICE MANMOHAN HON BLE MS. JUSTICE ASHA MENON JUDGMENT MANMOHAN J(COMM) 46 2021 annum to the Appellant has asked it to re agitate the matter as per law despite appreciating that both the Appellant and the Respondent were to be treated on the same footing. He points out that Section 34 of the Arbitration and Conciliation Act 1996 allows this Court to correct the Award atleast to the extent of directing that same rate of interest shall be granted to both the Respondent and the Appellant. 3. He submits that in the alternate even if the learned Single Judge felt compelled to direct the Appellant Counter Claimant to re agitate its claim for interest then in that case the same direction ought to have been issued to the Respondent as well and the amount of interest of Rs. 74.12 lakhs ought to have been disallowed and both the parties should have been permitted to re agitate the matter before a freshly appointed arbitral 4. Learned senior counsel for the appellant also contends that there is a calculation error in computing the external development charges by the Arbitrator inasmuch as the factum of the claimant completing only 41.9% work was not taken into account. Issue notice. Mr. Uday Gutpa Advocate accepts notice on behalf of the Respondent. He submits that as far as interference with an order made under Section 34 as per Section 37 of Arbitration and Conciliation Act is concerned it cannot be disputed that such interference under Section 37 cannot travel beyond the restrictions laid down under Section 34. In other words the Court cannot undertake an independent assessment of the merits of the award and must only ascertain that the exercise of power by the Court under Section 34 has not exceeded the scope of the provision. FAO(OS)46 2021 6. He further submits that as the counter claim is in the nature of damages the appellant is not entitled to any interest on the same. In the alternative without prejudice to his rights and contentions he would submit that if at all the appellant is held entitled to any interest then the same ought to be calculated from 26th October 2015 when the original counter claim was replaced with the amended counter claim and not from 19th May 2011. In support of his submission he relies upon a judgment of the Supreme Court in State of Goa vs. Praveen Enterprises AIR 2011 SC 3814 wherein it has been held as under: “17. As far as counter claims are concerned there is no room for ambiguity in regard to the relevant date for determining the limitation. Section 3(2)(b) of the Limitation Act 1963 provides that in regard to a counterclaim in suits the date on which the counterclaim is made in court shall be deemed to be the date of institution of the counterclaim. As the Limitation Act 1963 is made applicable to arbitrations in the case of a counter claim by a respondent in an arbitral proceeding the date on which the counter claim is made before the arbitrator will be the date of “institution” insofar as counterclaim is concerned. There is therefore no need to provide a date of “commencement” as in the case of claims of a claimant. Section 21 of the Act is therefore not relevant for counter claims. There is however one exception. Where the respondent against whom a claim is made had also made a claim against the claimant and sought arbitration by serving a notice to the claimant but subsequently raises that claim as a counter claim in the arbitration proceedings initiated by the claimant instead of filing a separate application under Section 11 of the Act the limitation for such counter claim should be computed as on the date of service of notice of such claim on the claimant and not on the date of filing of the counter claim.” 7. Having heard learned counsel for the parties this Court is of the view that findings of fact as well as of law of the arbitrator Arbitral Tribunal are FAO(OS)46 2021 ordinarily not amenable to interference either under Section 34 or Section 37 of the Act. The scope of interference is only where the finding of the tribunal is either contrary to the terms of the contract between the parties or ex facie perverse. The Arbitrator Tribunal is the final arbiter on facts as well as in law and even errors factual or legal which stop short of perversity do not merit interference under Sections 34 or 37 of the Act. It has also been repeatedly held that while entertaining appeals under Section 37 of the Act the Court is not actually sitting as a Court of Appeal over the award of the Arbitral Tribunal and therefore the Court would not re appreciate or re assess the evidence Ltd v. Dinesh Kalra’]. 8. Keeping in view the aforesaid mandate of law and concurrent findings of the fact this Court is in agreement with the submission of the learned counsel for the respondent that this Court in the present appeal cannot examine the contention of the appellant qua any calculation error in computing the external development charges on the basis that the factum of the claimant completing only 41.9% work was not taken into account by the Arbitrator. 9. However this Court is of the view that as the learned Single Judge in the impugned order has held that the appellant is entitled to interest on the counter claim which is in the nature of damages it ought to have applied the same yardstick with regard to the rate of interest to both the parties. This Court is further of the view that the appellant is entitled to interest from the date it filed its counter claim namely 19th May 2011. On 26th October 2015 the appellant had only amended its counter claim and that too by reducing the amount claimed from Rs.6.93 crores to Rs. 6.46 crores. FAO(OS)46 2021 It is pertinent to mention that the Arbitrator had only awarded Rs.45 50 046 against the aforesaid counter claim. 10. The judgment of the Apex Court in State of Goa is inapplicable to the facts of the present case as the said judgment deals with the issue of limitation of a counter claim and not with regard to rate of interest that has to be paid on the counter claim. 11. Further this Court is of the view that if the matter is remanded to an arbitrator for fresh adjudication with regard to rate of interest it would promote and not curtail litigation—an „end‟ which the Arbitration and Conciliation Act 1996 seeks to discourage. In fact this Court is of the opinion that if the argument of learned senior counsel for the appellant with regard to rate of interest is accepted it would be in consonance with one of the objectives of the Arbitration and Conciliation Act 1996 namely finality of arbitration awards. 12. This Court is of the view that if the argument of learned senior counsel for the appellant with regard to rate of interest is accepted it would promote one of the „cherished goals‟ of arbitration namely finality of arbitration awards. 13. Accordingly the impugned order of the learned Single Judge is modified to the extent that the appellant shall also be entitled to the same rate of interest as awarded by the Arbitrator to the respondent on the counter claim namely simple interest @ 12% per annum from 19th May 2011 till the date of award and @ 16% from the date of the award to the date of payment. FAO(OS)46 2021 14. With the aforesaid modification the award and impugned order of the learned Single Judge are upheld and the present appeal and pending applications stand disposed of. MANMOHAN J MARCH 26 2021 ASHA MENON J FAO(OS)46 2021

The court rejected pre-arrest bail for petitioner no. 1 as he caused grievous injuries.:High court of Patna

The petitioners were arrested under Section 341 IPC, “Punishment for wrongful restraint”, section 323, “Punishment for voluntarily causing hurt”, section 324, “Voluntarily causing hurt by dangerous weapons or means”, section 307, “Attempt to murder”, section 379, “Punishment for theft”, section 427, “Mischief causing damage to the amount of fifty rupees”, section 447, “Punishment for criminal trespass”, section 504, “ Intentional insult with intent to provoke breach of the peace”, and sections 506/34 of the Indian Penal Code. This present petition is in connection with Bajpatti PS Case No. 325 of 2020 dated 13.08.2020. In the high court of Judicature at Patna, this judgement was given by honourable Mr Justice Ahsanuddin Amanullah on the 21st of August 2021 in the case of Md. Gulab and others versus the state of Bihar criminal miscellaneous No.16757 of 2021, Mr Ashok Kumar Jha Represented as the advocate for the petitioner, Mr Sakir Ahmad represented the state of Bihar as the additional Public Prosecutor, and Mr Alok Kumar represented as the advocate for the informant, the proceedings of the court were held via video conference. The following are the facts of the case, the petitioner and 10 others have been accused of assault on the informant and the others which resulted in injuries and petitioner no.1 has been specifically accused of assaulting one Mr Md. Ezaz with a farsa and petitioner no.2 and 4 has been accused of assaulting the informant with an iron rod and petitioner no.3 has been accused of hitting one Mr Enamul by a cemented pillar. The counsel representing the petitioner held that the parties are agnates and there has been a dispute during the Panchayati. This incident took place on 11th august 2020 and the FIR was filed on the 13th of august on a written report which shows that the injuries were not that serious on the informant’s side and it occurred in the spur of the moment, there has been no explanation for the delay in filing for the FIR there has also been a counter case filed by the petitioners’ side which shows that even the petitioner was seriously injured and was admitted in the hospital. According to the injury report for Mr Md. Ezaz discloses two incised wounds bone deep on the head besides other wounds; the injury report of Enamul Haque shows swelling on the lips and mobility of teeth of the lower and upper region, as also the injury report of Md. Tanseer (informant) discloses lacerated wound skin deep on the skull and body aches. However, all these injuries are considered simple in nature which is caused by hard and blunt substances except for Mr Md Ezaz as he had bleeding from his nostrils which were considered grievous in nature. Further, the counsel held that the petitioners have no other criminal antecedent. The additional public prosecutor held that the allegations of assault are very specific against the petitioners and the incident has also resulted in injuries. The counsel for the informant held that just because there is a counter case by the petitioner does not indicate the falsity of the present case however the counsel has not controverted the delay for filing the FIR and the copies of the injury reports.

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No.167521 Arising Out of PS. Case No. 325 Year 2020 Thana BAJPATTI District Sitamarhi 1. Md. Gulab aged about 44 years for the State and Mr. Alok Kumar Jha learned counsel for the informant. 4. The petitioners apprehend arrest in connection with Bajpatti PS Case No. 3220 dated 13.08.2020 instituted Patna High Court CR. MISC. No.167521 dt.21 08 2021 under Sections 341 323 324 307 379 427 447 504 506 34 of the Indian Penal Code 5. The allegation against the petitioners and ten others is of assault on the informant and others resulting in injuries and specifically against the petitioner no. 1 is of assault by farsa on the head of Md. Ezaz and against the petitioners no. 2 and 4 is of assault by iron rod on the informant Md. Tanseer whereas against the petitioner no. 3 the allegation is of hitting Enamul Haque by cemented pillar. 6. Learned counsel for the petitioners submitted that the parties are agnates and the dispute arose during Panchayati It was submitted that besides the occurrence being on the spur of the moment there is also a counter case. Learned counsel submitted that though the incident took place on 11.08.2020 but the FIR was lodged on 13.08.2020 that too on the written report submitted in the police station which clearly indicates that there were no serious injuries on the side of the informant Thus it was submitted that there is no explanation for the delay of almost two days in lodging of the FIR. Further it was submitted that the case filed by the petitioners’ side has been lodged on the basis of fard beyan of Md. Ubaid from Sadar Hospital Sitamarhi which shows that he was badly injured and Patna High Court CR. MISC. No.167521 dt.21 08 2021 was in the hospital. Learned counsel drew the attention of the Court to the injury report of Md. Ezaz who is said to have been assaulted by petitioner no. 1 which discloses two incised wounds bone deep on the head besides other wounds injury report of Enamul Haque shows swelling on the lips and mobility of teeth of lower and upper region which is attributed to the petitioner no. 3 as also the injury report of Md. Tanseer who is the informant and is said to have been assaulted by the petitioners no. 2 and 4 which discloses lacerated wound skin deep on the skull and bodyache. It was submitted that the nature of injuries have been said to be simple caused by hard and blunt substance except for that of Md. Ezaz on whom bleeding from both nostrils was also found which is said to be grievous in nature. Learned counsel submitted that the petitioners have no other criminal antecedent. 7. Learned APP submitted that there is specific allegation of assault against all the petitioners and the same has also resulted in injuries 8. Learned counsel for the informant submitted that just because there is a counter case it does not mean that the present case is false. However he could not controvert that there is no explanation for the delay in lodging the FIR and further Patna High Court CR. MISC. No.167521 dt.21 08 2021 the injury reports copies of which have been brought on record were also not controverted. 9. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties the Court finds that as there is specific allegation of overt act against the petitioner no. 1 that he assaulted by farsa on the head of Md. Ezaz who sustained bone deep injuries on the head the Court is not persuaded to grant pre arrest bail to him 10. Accordingly prayer for pre arrest bail on behalf of the petitioner no. 1 Md. Gulab stands rejected 11. As far as petitioners no. 2 3 and 4 are concerned in view of the specific overt act against the petitioners no. 2 and 3 i.e. Md. Ubaid and Md. Junaid of hitting by iron rod on the head of the informant Md. Tanseer and there being only one lacerated wound on the head which is simple in nature as also the fact that against petitioner no. 3 Md. Junaid there is allegation of assault on Enamul Haque whose lips were swollen and there was mobility of teeth of lower and upper region and all the aforesaid injuries have been found to be simple in nature caused by hard and blunt substance and that the petitioners no 2 3 and 4 have no other criminal antecedent the Court is inclined to allow their prayer for pre arrest bail. Patna High Court CR. MISC. No.167521 dt.21 08 2021 12. Accordingly in the event of arrest or surrender before the Court below within six weeks from today the petitioners no. 2 3 and 4 Md. Ubaid Md. Zunaid and Md Suhail respectively be released on bail upon furnishing bail bonds of Rs. 25 000 each with two sureties of the like amount each to the satisfaction of the learned Sub Divisional Judicial Magistrate Pupari at Sitamarhi in Bajpatti PS Case No. 3220 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 no. 2 3 and 4 that the petitioners no. 2 3 and 4 and the bailors shall execute bond and give undertaking with regard to good behaviour of the petitioners no 2 3 and 4 andthat the petitioners no. 2 3 and 4 shall cooperate with the Court and the police prosecution. Any violation of the terms and conditions of the bonds or undertaking or failure to cooperate shall lead to cancellation of their bail bonds. 13. It shall also be open for the prosecution to bring any violation of the foregoing conditions by the petitioners no 2 3 and 4 to the notice of the Court concerned which shall take immediate action on the same after giving opportunity of Patna High Court CR. MISC. No.167521 dt.21 08 2021 hearing to the petitioners no. 2 3 and 4 14. The petition stands disposed of in the 15. However in view of submission of learned counsel for the petitioners it is observed that if the petitioner no. 1 Md. Gulab appears before the Court below and seeks bail the same shall be considered on its own merits in accordance with law without being prejudiced by the present (Ahsanuddin Amanullah J order. J. Alam

The powers under Article 142 or under Section 482 Cr.P.C., are exercisable in post­conviction matters only where an appeal  is pending before one or the other Judicial forum. Supreme Court

It cannot be understated that since members of the Scheduled Caste and Scheduled Tribe belong to the weaker sections of our country, they are more prone to acts of coercion,   and   therefore   ought   to   be   accorded   a   higher   level   of protection as held by the Hon’ble Supreme Court through the learned bench led by Justice Surya Kant in the case of Ramawatar v. State of Madhya Pradesh (CRIMINAL APPEAL NO. 1393 OF 2011) The brief facts of the case are that a civil dispute over the ownership and possessory rights of a piece of land between the Appellant and his neighbour Prembai took an ugly turn when the Appellant allegedly not only threw a brick on the Complainant but also made filthy and slur remarks on her caste, which prompted the Complainant to lodge FIR No. 18/94 at Police  Station O.E. Panna under Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities Act), 1989 read with Section 34 of the Indian Penal Code, 1860 .   The Appellant and his co­accused were subsequently tried, which led to the Appellant’s conviction under Section 3(1)(x) of the SC/ST Act and consequential sentence of six months rigorous imprisonment and fine of Rs. 1000/­. The Appellant challenged his conviction and sentence before the High Court of Madhya Pradesh, Jabalpur Bench but his appeal  was dismissed vide the impugned judgment dated 02.08.2010. The Supreme Court held, “Having considered the peculiar facts and circumstances of the present case in light of the afore­stated principles, as well as having meditated on the application for compromise, we are inclined to invoke the   powers   under   Article   142   and   quash   the   instant   Criminal proceedings with the sole objective of doing complete justice between the parties before us. Keeping in mind the socio­economic status of the Appellant, we are of the opinion that the overriding objective of the SC/ST Act would not be overwhelmed if the present proceedings are quashed. The Complainant has, on her own free will, without any compulsion,   entered   into   a   compromise  and   wishes   to   drop   the present criminal proceedings against the accused. Consequently, and for the aforementioned reasons, we find it appropriate to invoke our powers under Article 142 of the Constitution and quash the criminal proceedings to do complete justice between the parties.”

A civil dispute over the ownership and possessory rights of a which prompted the Complainant to lodge FIR No. 18 94 at Police the Scheduled Tribes 1989 and Prembai who are was built. On 25.06.1994 Ramawatar and his brother Katulal ensued between the parties and the Appellant threw a brick at the was lodged at Police Station Devendra Nagar on the same date itself simple and the offence was found non­cognizable the Police took no further steps. On the following day i.e. 26.06.1994 when the fact that Prembai had lodged an F.I.R. against them. They started abusing her with repeated reference to her caste whilst also threatening her of dire consequences. After that the Complainant and Upon collection of substantial evidence Appellant and co­accused The Trial Court noted that the Complainant belonged to the ‘Prajapati’ community which is a Scheduled Caste. It was also dispute between them. The Trial Court further discerned that the prosecution witnesses had by and large supported the version of the Kuddu used deprecatory language upon the Complainant. It was found that the Appellant had made specific reference to the of the Appellant & co­accused Kuddu were thus held to be in I.P.C. The Trial Court therefore convicted both the accused persons Discontented with their conviction the accused preferred an appeal before the High Court of Madhya Pradesh Jabalpur Bench However during the pendency of the proceedings co­accused Kuddu being a member of the Scheduled Caste community. Instead the incident occurred on account of a property dispute between the parties. It was thus submitted that the alleged incident could not 7. When the instant appeal came up for hearing what prompted this Court to issue notice was that the matter had been settled compromise. Reiterating the same plea learned Counsel for the Appellant canvassed before us that the parties are residents of the same village and there is no existing enmity between them. It was may continue to have cordial relations. He drew our attention to a Anr1 wherein it was held that a property dispute between a Article 142 of the Constitution to quash the instant criminal proceedings. The Appellant’s stand and the application for compromise were fully supported by the learned Counsel for the Per Contra learned Counsel for the Respondent State without recourse. It was contended that there was a concurrent finding of conviction and no substantial question of law was involved in the v. State of Orissa3 and Bankat & Anr v. State of Maharastra4 learned State Counsel submitted that the purported settlement compoundable in terms of Section 320 of the Code of Criminal Procedure 1973 further postulated that of the proceedings including at the appellate level. The Court through brute force threats bribes or other such unethical and illegal means cautioned that in cases where a settlement is struck post­conviction the Courts should inter­alia carefully examine the fashion in which the compromise has been arrived at as well as the “19… Nonetheless we reiterate that such powers of wide of quashing criminal proceedings bearing in mind: Seriousness of the injury if any Conduct of the the purported offence and or other relevant considerations.” Court under Article 142 can be invoked to quash a criminal proceeding on the basis of a voluntary compromise between the 13. We however put a further caveat that the powers under Article matters only where an appeal is pending before one or the other not attain finality till the accused has exhausted his her legal pendency of legal proceedings be that may before the final Court is sine­qua­non to involve the superior court’s plenary powers to do necessitated to prevent the accused from gaining an indefinite 14. With respect to the second question before us it must be noted constructed as a limitation on the Court’s power to do “complete justice”. However this is not to say that this Court can altogether v. Union of India & Anr6 has eloquently clarified this point as “48. The Supreme Court in exercise of its jurisdiction is necessary for doing complete justice “between the parties in any cause or matter pending before it”. The for itself within which to exercise those powers and ordinarily it cannot disregard a statutory provision governing a subject except perhaps to balance the equities between the conflicting claims of the litigating before it. Indeed this Court is not a court of restricted It is a “problem­solver in the nebulous areas” 3 SCC 655 : 1991 SCC 734] but the substantive statutory provisions under Article 142. Indeed these constitutional powers cannot in any way be controlled by any statutory provisions but at the same time these powers are not meant to be exercised when their exercise may come 15. Ordinarily when dealing with offences arising out of special statutes such as the SC ST Act the Court will be extremely circumspect in its approach. The SC ST Act has been specifically measures the Scheduled Castes Scheduled Tribes continue to be subjected to various atrocities at the hands of upper­castes. The Articles 15 17 and 21 of the Constitution with a twin­fold objective of 16. On the other hand where it appears to the Court that the offence in question although covered under the SC ST Act is primarily committed on account of the caste of the victim or where the compromise settlement if the Court is satisfied that the underlying 17. Adverting to the case in hand we note that the present Appellant “3. Punishments for offences of atrocities­ intentionally insults or intimidates with intent to 18. We may hasten to add that in cases such as the present the the weaker sections of our country they are more prone to acts of coercion and therefore ought to be accorded a higher level of relief can be given to the accused party. What factors the Courts the powers under Article 142 and quash the instant Criminal Firstly the very purpose behind Section 3(1)(x) of the SC ST is to the Scheduled Caste Scheduled Tribe community. In the present the genesis of the deprecated incident was the afore­stated that it would not be incorrect to categorise the occurrence as one of criminality even though the provisions of a special statute have Secondly the offence in question for which the Appellant has been although the Appellant may not belong to the same caste as the Complainant he too belongs to the relatively weaker backward social position when compared to the victim. Despite the rampant their quartes only to certain areas it is seen that in the present case the Appellant and the Complainant lived in adjoining houses Therefore keeping in mind the socio­economic status of the Appellant that would lead us to believe that the Appellant is either a repeat Fourthly the Complainant has on her own free will without any compulsion entered into a compromise and wishes to drop the Fifthly given the nature of the offence it is immaterial that the trial Sixthly the Appellant and the Complainant parties are residents of the same village and live in very close proximity to each other. We settled their differences. Therefore in order to avoid the revival of healed wounds and to advance peace and harmony it will be prudent 20. Consequently and for the aforementioned reasons we find it and quash the criminal proceedings to do complete justice between Trial Court and the High Court are set aside. Bail bonds if any are

The stage of Cognizance would only arise after the report of Investigation: Karnataka High Court

Referring the matter for investigation without the application of judicious mind, is nothing but an abuse of process. At the same time, that stage of cognizance would arise only after investigation report is filed before the Magistrate. These principles were upheld by the High Court of Karnataka presided by J. H.P. Sandesh in the case of Mrs. Vilasini Seevanthan & anr. vs. State of Karnataka & othrs. [CRIMINAL PETITION No.4276/2020]. In the instant case, the petitioner filed this petition before the Court to quash the order passed by the learned Magistrate in PCR No.50506/2020. The learned counsel Adv. Ayantika Mondal, for the petitioner submitted that learned Magistrate while referring the matter under Section 156(3) of Cr.P.C. had not applied his judicious mind and mechanically referred the matter for investigation without looking into the contents of the complaint and the documents placed along with the complaint. Per contra, the respondent submitted that the Magistrate while passing the order mentioned that he has perused the materials placed on record and referred the matter for investigation thereby applying his mind. The court in the present case observed, “Having heard the learned counsel for the petitioner and learned counsel appearing for the respondent and on perusal the impugned except mentioning that perused the of the order materials on record, learned Magistrate has not applied his mind whether the offences invoked are cognizable or non cognizable offence and even nothing is mentioned in the order whether he has looked into the contents of the complaint and documents produced along with the complaint. Without application of mind the learned Magistrate has referred the matter under Section 156(3) of Cr.P.C. for investigation.” The court further referred to the principles laid down in the judgments mentioned below in order to reach to conclusion for the matter in concern of the case at hand. The honorable court held, “With regard to referring the matter under Section 156(3) of Cr.P.C. the court summarized the principles as to how to deal with context to challenge to FIR. It is held that the power vests with the Investigating Officer under Section 157 of Cr.P.C. to investigate the matter and the Court cannot act like an investigating agency nor can exercise the powers like an appellate Court, question is required to be examined, keeping in view of the contents of the FIR and prima facie material, if any, requiring no proof.” The Apex Court in this case categorically held that, “The learned Magistrate before referring the matter under Section 156(3) of Cr.P.C. has to apply his judicious mind and pass appropriate orders. This Court in the Maksud Saiyed case examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under section 156(3) and held that where jurisdiction is exercised on a complaint filed in terms of section 156(3) or section 200 CrPC, the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under section 156(3) against a public servant without a valid sanction order. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under section 156(3)  CrPC, should be reflected in the order, though a detailed expression of his views is neither required nor warranted.  The court contended, “It needs to be reiterated that the learned Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind. He has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order. The present is a case where the accused persons are serving in high positions in the bank. We are absolutely conscious that the position does not matter, for nobody is above law. But, the learned Magistrate should take note of the allegations in entirety, the date of incident and whether any cognizable case is remotely made out. It is also to be noted that when a borrower of the financial institution covered under the SARFAESI Act , invokes the jurisdiction under section 156(3)  Cr.P.C. and also there is a separate procedure under the Recovery of Debts due to Banks and Financial Institutions Act, 1993, an attitude of more care, caution and circumspection has to be adhered to.” The court further held, “We are obligated to say that the learned Magistrate should have kept himself alive to the aforesaid provision before venturing into directing registration of the FIR under section 156(3) Cr.P.C. It is because the Parliament in its wisdom has made such a provision to protect the secured creditors or any of its officers, and needles to emphasize, the legislative mandate, has to be kept in mind. In view of the aforesaid analysis, we allow the appeal, set aside the order passed by the High Court and quash the registration of the FIR.”  In this case, the honorable court observed, “It appears to us that the appellants approached the High Court even before the stage of issuance of process. In particular, the appellants challenged the order dated 04.01.2011 passed by the learned Magistrate under section 156(3) of Cr.P.C. The learned counsel appearing on behalf of the appellants after summarizing their arguments in the matter emphasized also in the context of the fundamental rights of the appellants under the Constitution, that the order impugned has caused grave inequities to the appellants. In the circumstances, it was submitted that the order is illegal and is an abuse of the process of law. However, it appeared that this order under section 156(3) of Cr.P.C. requiring investigation by the police, cannot be said to have caused an injury of irreparable nature which, at this stage, requires quashing of the investigation. We must keep in our mind that the stage of cognizance would arise only after the investigation report is filed before the Magistrate. Therefore, in our opinion, at this stage the High Court has correctly assessed the facts and the law in this situation and held that filing of the petitions under Article 227  of the Constitution of India or under section 482  of Cr.P.C., at this stage are nothing but premature. Further, in our opinion, the High Court correctly came to the conclusion that the inherent powers of the Court under section 482 of Cr.P.C. should be sparingly used. In these circumstances, we do not find that there is any flaw in the impugned order or any illegality has been committed by the High Court in dismissing the petitions filed by the appellants before the High Court. Accordingly, we affirm the order so passed by the High Court dismissing the writ petitions and the appeal is dismissed.”

a697 0 tyorotika mondal IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25 DAY OF JANUARY 2021 THE HON BLE MR. JUSTICE H.P. SANDESH CRIMINAL PETITION No.4276 2020 MRS. VILASINI SEEVANTHAN AGED ABOUT 35 YEARS D 0. SEEVANATHAN NO.TFO3 MAY FLOWER APARTMENT WHEELER ROAD FRAZER TOWN BENGALURU NORTH BENGALURU 560 005 ALSO OFFICE AT M S. VYMIGRATE MIGRATION AND CONSULTANTS INDIA PVT. LTD. FLOOR EVA MALL NO.211 2 60 BRIGADE ROAD BENGALURU 560 025. PETITIONER BY SRI. AYANTIKA MONDAL ADVOCATE STATE OF KARNATAKA REP BY ASHOK NAGAR POLICE STATION REP BY PUBLIC PROSECUTOR MR. PURUSHOTTAM. K S 0. KAMALA KANNAN AGED ABOUT 44 YEARS C e r t i f i e d copy c o t a in s . . . .h . ) . . i s R e r e ivod NO.75 6H CROSS KAMANAHALLI MAIN ROAD BENGALURU CITY KARNATAKA 560 084. BY SMT. NAMITHA MAHESH B.G. HCGP FOR R1 THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.c. PRAYING TO QUASH FIR BEARING No.59 2020 DATED 20.02.2020 OF ASHOK NAGAR POLICE STATION BENGALURU CITY WHICH IS PENDING ON THE FILE OF THE MAGISTRATE COURT MAYO HALL UNIT BENGALURU CITY FOR OFFENCES REGISTERED UNDER SECTIONS 419 420 AND 506 OF IPC 1860. THIS CRIMINAL PETITION COMING ON FOR ADMISSIONN THIS DAY THE COURT MADE THE FOLLOWING: This petition is filed under Section 482 of Cr.P.C. praying this Court to quash the order dated 15.02.2020 passed by the learned Magistrate in PCR No.50506 2020 for the offence punishable under Sections 419 420 and 506 of IPC. The factual matrix of the case is that respondent No.2 herein had filed the private complaint invoking Section 200 of Cr.P.C. and on presentation of the complaint the learned Magistrate passed the following order: FK TO 3 the complainant and perused materials placed on record. This complaint is referred to ashoknagar P.S. for investigation u s 156(3) of Cr.P.C. The concerned IO is directed to submit final report by next date of hearing. Await final report call on 121.05.2020." Learned counsel for the petitioner would submit thnat learned Magistrate while referring the matter under Section 156(3) of Cr.P.C. has not applied his judicious mind and the matter for investigation without looking into the contents of the complaint and the documents placed along with the complaint. Per contra learned counsel appearing respondent No.2 would submit that learned Magistrate while passing the order mentioned that he has perused the materials placed on record and referred the matter for investigation under Section 156(3) of Cr.P.C. Hence the learned Magistrate has applied his mind. Having heard the learned counsel for the petitioner and learned counsel appearing for the respondent and on perusal 4 of the order impugned except mentioning that perused the materials on record learned Magistrate has not applied his mind whether the offences invoked are cognizable or non cognizable offence and even nothing is mentioned in the order whether he has looked into the contents of the complaint and documents produced along with the complaint. Without application of mind the learned Magistrate has referred the matter under Section 156(3) of Cr.P.C. for investigation. Having heard both the learned counsel for the parties with regard to non application of mind is concerned the order above learned Magistrate except ordering to register the case as PCR he has not applied his judicious mind even not referred as to whether he has perused the contents of complaint and documents but has mechanically passed the order invoking Section 156(3) of Cr.P.C. The Apex the case of MAKSUD SAIYED V. STATE OF GUJARATH AND OTHERS reported in 5 sCC 668 categorically held that the learned Magistrate before referring the matter under Section 156(3) of Cr.P.C. has to apply his judicious mind and pass appropriate orders. RT O 7. the principles With reference to the submission of non compliance the case of PRIYANKA SRIVASTAVA AND ANoTHER v. STATE OF UTTAR PRADESH AND OTHERS reported in 5 SCC 287 the Apex Court laid down the matter that referring the conclusion has Come investigation is nothing but an abuse of process. The factual aspects of the case in Priyanka Srivastava s case is when there is a protection under Section 32 of SARFAESI Act and when the proceedings was initiated against the Bank officials and when they took recourse to recover the balance amount Complaint was filed. Hence the Apex Court has made an observation that same is nothing but an abuse of process. This Court would like to refer to the judgment of the Apex Court rendered subsequent to the judgment of Priyanka Srivastava s case i.e. in the case of HDFC Securities Ltd. and Others v. State of Maharashtra and Another reported in AIR 2017 SC 61 with regard to referring the matter under Section 156(3) of Cr.P.C. it is held that stage of cognizance would arise only after investigation report is filed before the Magistrate. The T O 6 order directing the Investigating does not amount to causine injury of irreparable nature and the said order cannot n9 an quashed at a premature stage. The Apex Court in paragraph No.24 of the judgment held that exercising the powers under Section 482 of Cr.P.C. at the stage of referring the matter under Section 156(3) is nothing but premature and the same has to be exercised sparingly. The Apex Court the case of DINESHBHAI CHANDUBHAI PATEL V. STATE OF GUJARAT AND oTHERS reported in 2018(3) SCC 104 with regard to referring the matter under Section 156(3) of Cr.P.C. has summarized the principles as to how to deal with context to challenge to FIR. It is held that the power vests with the Investigating Officer under Section 157 of Cr.P.C. to investigate the matter and the Court cannot act like an investigating agencY nor can exercise the like an appellate Court question is required to be examined keeping in view of the contents of the FIR and prima facie material if any requiring no proof. Once the Court finds that FIR does discloses prima facie commission of any cognizable offence it should stay its hand and allow the investigating T O machnery to step in to nitiate the probe to unearth the crime in accordance with the procedure prescribed in the Cr.P.. 10. Having perused the principles laid down judgments referred supra HDFC Securities Ltd. and Others case and Dineshbhai Chandubhai Patel s case and also taking into consideration of the principles laid down in the Priyanka Srivastava s case the Court has to look into the facts and circumstances of each case. I have already pointed out that when the lawful recourse was exercised by the bank officials a false case was filed against them and at that juncture Considering the facts and circumstances of the case the Apex Court held in the Priyanka Srivastava s c a s e that it is nothing but an abuse of process. By considering the factual in view of the decision aspects of the case is considered rendered by the Apex Court in HDFC Securities Ltd. and Others case subsequent to the said judgment held that the order directing the Investigating does not amount to causing an injury of irreparable nature and the order cannot be quashed at a premature stage. 8 In view of the discussion made above I pass the The petition is allowed. i) The 15.02.2020 in PCR No.50506 2020 is hereby set aside and the matter is remitted back to the Magistrate to consider the same afresh and appropriate order applying judicious mind in accordance with the principles laid down in the judgments referred supra. In view of the disposal of the main petition I.A. if any does not survive for consideration and the same stands disposed 251 )OM . TRUE COPY Secion G f f i c e r l Higih Co t of Karnataka Bengaluru 560 001 s a dd i t io1 au c) 1h i . i i t opy is ready i an t is requireo 2 a Oil or i i : : on which tie copy i Oelivere GL e h e i an t

The court can grant leave to the plaintiff to file documents, not filed with the plaint: Delhi High Court

The provisions of Order XI Rule 1(1)(c)(ii) CPC, permits the plaintiff to file documents in answer to the case set up by the defendant subsequent to the filing of the plaint. This was held by Hon’ble Justice Asha Menon in the case of Valo Automotive Pvt. Ltd. Vs. Sprint Cars Pvt. Ltd. and Ors. on the 18th of August, 2021 before the Hon’ble High Court of Delhi. The brief facts of the case are, The petitioner/plaintiff had filed a suit bearing CS No.1299/2018 against Sprint Cars Pvt. Ltd., for the recovery of Rs.31,65,271/- along with the interest. The petitioner claims that certain documents and statement of accounts were already placed by it on the record. Summons were issued to the respondents/defendants and they filed their first appearance on 18th October, 2018. They took time to file written statement. In the meantime, on 27th November, 2018, the court referred the matter to the Mediation Centre, Saket Court, for attempting an amicable settlement between the parties, which however, failed. The suit then continued in the court and on 21st December, 2018, the respondents filed their written statement. The case was then fixed for filing of replication. On 11th March, 2019, the petitioner filed the compilation of rejoinder affidavit to the written statement along with an application under Order XII Rule 6 read with Order VIII Rules 3, 4 & 5 CPC for judgment on admission. An application under Order VI Rule 17 CPC was also filed for amending the plaint. The application under Order VII Rule 14 CPC was filed for bringing on record documents, such as, further invoices, to substantiate the amendment sought, which was for enhancing the suit claim from Rs.31,65,271/- to Rs.39,03,396/-. There was no change brought to the remaining part of the plaint. By the impugned order, the learned Trial Court rejected the application for amendment observing that since the amendment would be resulting in allowing the claim, which was relinquished by the plaintiff at the time of filing of the suit, it could not be allowed. The present petition has been filed being aggrieved by the order dated 15th March, 2021, whereby, its applications under Order VI Rule 17 and under Order VII Rule 14 of Code of Civil Procedure, 1908 for amendment of the plaint and for placing on record the additional documents respectively, were dismissed. The counsel for the petitioner submitted that, the learned Trial Court had misdirected itself in holding that the amendments were belated and that the petitioner had given up the claim that it was belatedly seeking to incorporate in the plaint. The learned counsel submitted that there was no material change to the nature of the suit, as the only amendment that was sought, was the enhancement of the total sum of the claim from Rs.31,65,271/- to Rs.39,03,396/-. It was further submitted that the amendment had been sought at the earliest, as time had been spent, not due to the fault of the petitioner, but, as the matter had been pending before the Mediation Centre. The counsel for the respondents submitted that, the orders of the learned District Judge, Commercial Court, was in accordance with law and no ground was made out for allowing the amendment. It was submitted that the suit had originally been filed for Rs.31,65,271/-. The bills and invoices now sought to be placed on the file were available to the petitioner even at the time of filing of the suit. It was submitted that having all the documents with them, the petitioner nevertheless, chose to file the suit for a lesser amount. In these circumstances, the learned Commercial Court, had rightly concluded that by filing a suit for a lesser amount, the petitioner had given up the claim for the remaining amount. The learned judge heard the submissions of both the parties and observed that, Order VI Rule 17 CPC permits the court to consider and allow amendments to pleadings, as may be necessary, for the purpose of determining the real question in controversy between the parties. Where the application is moved after the trial has commenced, even then the court may allow amendments, on being satisfied that the averments sought to be introduced by way of amendments were not included in the pleadings at the initial stage despite due diligence.  The petition was allowed by holding, “In the present case, not only has the trial yet to commence, the suit is at a very preliminary stage. The learned Commercial Court had granted to the petitioner/plaintiff an opportunity to file the replication. That is when the liberty to file documents and amendments were sought. Moreover, the amendment is not seeking to change the nature of the suit, which remains one for recovery. The petitioner/plaintiff cannot be denied an opportunity to meet the claim of the respondents/defendants raised in the written statement that there were no invoices or bills raised. In order to allow the court to determine fully the dispute between the parties, it is the considered view of this Court that the amendments are necessary. Effective adjudication of the controversy and avoidance of multiplicity of judicial proceedings are factors that have to be considered. The learned Trial Court has referred to the provisions of Order XI Rule 5 CPC, as applicable to the commercial disputes. But, it has overlooked the provisions of Order XI Rule 1(1)(c)(ii) CPC, which permits the plaintiff to file documents in answer to the case set up by the defendant subsequent to the filing of the plaint. The precise case of the petitioner/plaintiff is that when the respondents/respondents denied that invoices were ever raised, the application was moved to bring the invoices on record. Under Order XI Rule 5 CPC, the court can grant leave to the plaintiff to file documents, not filed with the plaint. The learned Commercial Court erred in over-looking these provisions of the CPC.” Click here to read the judgement

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

Accused entitled to benefit of doubt since suspicion not proof in law: Bombay High Court

An accused charged of murder is entitled to benefit of doubt since suspicion, no matter how strong it may be, is not sufficient to be considered as a legal proof is upheld by the High Court of Judicature at Bombay Bench of Aurangabad through a learned division bench led by HONOURABLE MR. JUSTICE VK JADHAV and HONOURABLE MR. JUSTICE SK MORE in the case of Avdhoot Vithal Ghate v. State of Maharashtra (CRIMINAL APPEAL NO. 702 OF 2014). Brief facts of the case are that Ghate was arrested in 2012 for allegedly killing a co-worker by hitting his head with a stone during a drunken argument. After questioning sixteen witnesses in the trial, which lasted more than a year, Sessions Court found Ghate guilty and convicted and sentenced him to life imprisonment.The court overturned the conviction of the Sessions Court in Ahmednagar on an appeal by Avdhoot Ghate, a worker from Jalgaon. The appellants objected to the order, arguing that the prosecution’s case was based on circumstantial evidence and that there was no direct evidence against him to substantiate the chain of events. He further argued that the prosecution failed to provide its rationale. The respondent relied on Ghate’s confession statement recorded by the Special Jurisdiction Judge. The judge gave Ghate one day time to reconsider the confession, thus, deciding on the voluntary nature of the confession. This confession was not withdrawn during the framing of the charge and during the interrogation of the 16 prosecution witnesses.They also claimed that witnesses identified the suspect during identification. The Bombay High Court held that the evidence revealed that the prosecution’s case was based entirely on circumstantial evidence and that there was no direct evidence in the case.The Board did not find confession statement to be true and voluntary and was not supported by other materials.Suspicion is created against the appellant-defendant, but the suspicion, no matter how strong, cannot take the form of legal evidence. Hence, conviction was overturned on the grounds that the prosecution failed to prove the case beyond reasonable doubt. Click here to read the judgement

on 27 01 2022 on 05 02 crapl702.14 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 702 OF 2014 Avdhoot Vithal Ghate(C 16833) Age 19 years Occ. Labour R o. Kakaddati Tq. Pusad Dist. Yeotmal(Ori. Accused) versusThe State of Maharashtra Through the Police Inspector Nagar Taluka police stationTq. Nagar Dist. Ahmednagar ...Respondent .....Mr. Sunil B. Jadhav Advocate for the appellant: 1. This appeal is directed against the judgment and order passedby the Additional Sessions Judge Ahmednagar dated 24.4.2014 inSessions Case No. 713. 2.Brief facts of the prosecution case are as follows: on 27 01 2022 on 05 02 crapl702.14 2 a)Deceased Pandurang Patil and the appellant accusedAvadhoot Ghate both were working as labourers. DeceasedPandurang was hailing from Jalgaon whereas appellant accusedAvadhoot is resident of Pusad district Yeotmal. Both of them insearch of labour work had come to Ahmednagar. On 12.10.2012 deceased Pandurang appellant accused and one other labourerstarted working in the field of P.W.4 Raosaheb Sonawane atHingangaon. P.W.3 Vaijanath Kardile a teacher is also havingagricultural land at village Jakhangaon situated near Hingangaon andhe was also in need of labourers for cutting the crop of Bajra andthus he had requested P.W.4 Raosaheb Sonawane to send thosethree labourers to his field after his work is over. On 15.10.2012 P.W.3 Vaijanath Kardile brought those three labourers from the fieldof Raosaheb Sonawane. It further reveals from the prosecution storythat on the next day deceased Pandurang and the appellant accused expressed their desire to attend one religious function atHingangaon. Thus they went to village Hingangaon. They hadconsumed liquor. Subsequently a quarrel had taken place betweenthem at Hingangaon. Deceased Pandurang was insisting theappellant accused Avadhoot to do some more work and also abusedhim on that count. Consequently the appellant accused Avadhootgot annoyed and while returning after attending the religious functionat Hingangaon the appellant accused Avadhoot had committedmurder of deceased Pandurang by smashing his head with the helpof one big stone. on 27 01 2022 on 05 02 crapl702.14 3 b)On 19.10.2012 P.W. 1 Police Patil Ramesh Angre wasinformed by one Chandu Shaikh that near his field he has noticedsome blood stains some diaries stones one pant and also onedead body. Thus on the same day at about 3.00 p.m. P.W.1 PolicePatil Ramesh Angre went to the spot. He saw the dead body lyingon the spot as well as there were blood stains. The said dead bodywas in crushed condition. One barmoda pant and a blue shirt wereon the person of deceased. The said dead body was lying in thornybushes. He then went to Nagar Taluka police station and lodged thereport Exh.11. The police thereafter visited the spot and seized thearticles. PW.16 A.P.I. Milind Patil has sized those articles by drawingpanchanama and also sent the dead body to Civil Hospital forpostmortem examination after preparing the inquest panchanamaExh.19. A.P.I. Milind Patil has recorded the statements of thewitnesses. He has also effected arrest of the appellant accused bypreparing arrest panchanama Exh.62. On 5.12.2012 while theappellant accused Avadhoot was in police custody he made avoluntary statement to produce the clothes and also to show the spotof incident. Thus memorandum panchanama was prepared atExh.27 and thereafter his one shirt and one pant having stains ofblood came to be seized from the spot as shown by him by drawingpanchanama Exh.28. The said shirt and pant having blood stainsare articles 18 and 19 before the Court. During the course ofinvestigation P.W.16 A.P.I. Milind Patil has also obtained the on 27 01 2022 on 05 02 crapl702.14 4 confession of accused and the report of the identification parade fromthe Special Judicial Magistrate. The investigating officer hascompleted all the formalities and after completion of investigation submitted the charge sheet against the appellant accused. c)The learned Additional Sessions Judge has framed chargeagainst the appellant accused for the offence punishable underSections 302 and 201 of I.P.C. The appellant accused has pleadednot guilty to the said charges and claimed to be tried. The defence ofthe accused is of total denial and false implication. The prosecutionhas examined in all 16 witnesses to substantiate the charges levelledagainst the accused. The appellant accused has not examined anywitness in defence. After recording the statement of the appellant accused under section 313 of Cr.P.C. and after hearing both sides learned Additional Sessions Judge Ahmednagar has found theappellant accused guilty of offence under Section 302 of I.P.C.Learned Additional Sessions Judge has thus passed the sentenceagainst the appellant accused. The operative part of the judgmentand order of conviction dated 24.4.2014 is reproduced herein below: “1)Accused Avdhoot Ghate is hereby convicted of theoffence punishable under Section 302 of Indian PenalCode and is sentenced to suffer Rigorous Imprisonmentfor life.2)Accused is hereby acquitted of the offence on 27 01 2022 on 05 02 crapl702.14 5 punishable under Sectin 201 of the Indian Penal Code.3)Muddemal Property namely clothes stones notebooks books and other articlesbeingworthless be destroyed after the period of appeal is over.”3.Learned counsel for the appellant accused submits that theprosecution case entirely rests upon circumstantial evidence andthere is no direct evidence in this case. There is no chain ofcircumstantial evidence. The prosecution has failed to establish themotive on the part of the appellant accused for commission of crimeof murder. Learned counsel submits that P.W.3 Vaijanath Kardile inwhose field the appellant accused was working as labourer alongwithdeceased Pandurang has admitted that there was no dispute orquarrel taken place amongst the labourers working in his field.Learned counsel submits that even there is no evidence about lastseen together. P.W.3 Vaijanath Kardile has admitted in his crossexamination that in his presence deceased Pandurang andappellant accused Avdhoot had not gone to Darshan of Palkhi(religious function). Learned counsel submits that except the socalled evidence about confession there is no connecting evidenceagainst the appellant accused. Learned counsel submits that thoughP.W.11 Special Judicial Magistrate Bhaskar Bhos was notempowered he has conducted the identification parade.Furthermore the so called identification parade suffers from variousdeficiencies. Learned counsel submits that the confession Exh.42 is on 27 01 2022 on 05 02 crapl702.14 6 also not free from suspicion. P.W.11 Bhaskar Bhos has not compliedwith the procedural mandate before recording the confession. Hehas not got satisfied himself as to whether the confession isvoluntary. Learned counsel submits that at the most suspicion iscreated against the appellant accused. The said suspicion howeverstrong it may be cannot take the form of legal proof. Learnedcounsel submits that the appellant accused is entitled for the benefitof doubt. Learned counsel for the appellant accused in order tosubstantiate his submissions placed reliance on the followingcases: i)Judgment dated 22.11.2021 delivered by this Court incriminal appeal No. 341416 SCC 547iii)Haricharan Kurmi and Anr. vs. State of Bihar reportedin AIR 1964 SC 1184iv)Sarwan Singh Rattan Singh and Anr. vs. State ofPunjab reported in AIR 1957 SC 637v)Hari Om Alias Hero vs. State of Uttar Pradesh reportedin4 SCC 345 on 27 01 2022 on 05 02 crapl702.14 7 vi)Musheer Khan alias Badshah Khan and another vs.State of Madhya Pradesh reported in2 SCC 748 4.Learned A.P.P. submits that the prosecution has proved thecase by establishing the chain of circumstantial evidence. Theprosecution has proved beyond doubt the homicidal death ofdeceased Pandurang. The prosecution has also proved thatdeceased Pandurang and appellant accused Avdhoot were workingin the field of P.W.3 Vaijanath Kardile prior to the death ofPandurang. Even though deceased Pandurang and appellant accused Avdhoot had gone to village Hingangaon to attend thereligious function however appellant accused Avdhoot had returnedto the field of P.W.3 Vaijanath Kardile alone. He had given evasiveanswers to the queries put forth by P.W.3 Vaijanath Kardile as to thewhereabouts of deceased Pandurang. Furthermore at the instanceof the appellant accused his shirt and pant came to be seized fromthe hidden place and the C.A. report also indicates human bloodstains on his clothes. Furthermore P.W.11 Bhaskar Bhos theSpecial Judicial Magistrate has recorded the confessional statementof the appellant accused Part I Exh.37 and Part II Exh.42 respectively. He had given the appellant accused 24 hours of time torethink about the confession and in that way also concluded aboutvoluntarily nature of confession. P.W.11 Bhaskar Bhos the SpecialJudicial Magistrate has completed all formalities as per the guidelines on 27 01 2022 on 05 02 crapl702.14 8 given in the criminal manual. Further the witnesses have identifiedthe appellant during the course of identification parade. There is nosubstance in this appeal and the appeal is thus liable to bedismissed. .Learned APP further submits that the appellant has retractedthe confession only at the time of recording the statement underSection 313 of Cr.P.C.. It has been done under legal advice and assuch confession Exh.42 has been rightly relied upon by the trialcourt to convict the appellant accused. The retracted confessionmay form the legal basis for conviction. In the present case theconfession was not changed during the stage of framing of chargeand also during the course of examination of 16 prosecutionwitnesses.The learned A.P.P. in order to substantiate his submissions placed reliance on the judgment of the Supreme Court in the case ofManoharan vs. State by Inspector of Police Variety Hall PoliceStation Coimbatore in Review PetitionNos. 446 447 of2019 in Criminal appeal Nos. 1174 11719. 5.We have perused the material exhibits tendered by theprosecution the evidence of the prosecution witnesses thestatement of the appellant accused recorded under Section 313 ofthe Cr.P.C. and the impugned judgment. on 27 01 2022 on 05 02 crapl702.14 9 6.The prosecution case entirely rests upon the circumstantialevidence and there is no direct evidence in this case. So far as thehomicidal death of deceased Pandurang is concerned the same isnot seriously disputed by the appellant accused. The prosecution hasexamined P.W.12 Dr. Amol Shinde who has conducted post mortemexamination on the dead body of deceased Pandurang. In columnNo.17 he has noted the following two injuries: 1)Fractures present over skull bones broughtseparately margins irregular underlying meninges andbrain absent servical vertebrae No. 1 2 3 fractured inmultiple pieces margins irregular.2)Mandible fractured in multiple pieces marginsirregular.In his opinion the final cause of death was head injury. Postmortem report bears his signature which is marked at Exh.39. Hehas also accepted that the said injuries are possible with the help ofarticle 3 big stone before the Court. He has denied that the saidinjuries are possible by fall accidentally. Even considering the injuriesas described in column No.17 it can be positively said that the saidinjuries are outcome of smashing and it is not possible by accident.The prosecution has proved homicidal death of deceasedPandurang. on 27 01 2022 on 05 02 crapl702.14 10 7.It is well settled that if the prosecution case rests uponcircumstantial evidence the motive plays a great role. In the instantcase there is no motive. Deceased Pandurang and appellant accused Avdhoot were from two different districts regions and theyhad no previous acquaintance. In search of labour work they lefttheir respective native places and came to district Ahmednagar.Initially they had worked in the field of P.W.4 Raosaheb Sonawane.P.W.4 Raosaheb Sonawane had picked up three labourers fromAhmednagar Railway station i.e. deceased Pandurang appellant accused Avdhoot and one another labourer for cutting Bajra crop inhis field. Thereafter by consent those three labourers went to thefield of P.W.3 Vaijanath Kardile on 15.10.2012 for labour work.P.W.3 Vaijanath Kardile had also accepted that he had neverwitnessed any dispute or quarrel amongst those three labourersworking in his field. Except guess work of the investigating officerabout motive there is no evidence. 8.P.W.3 Vaijanath Kardile has deposed that on 16.10.2012 hehad informed the labourers working in his field that he was going forDarshan of Palkhi. On the same day at about 12.00 noon aftertaking Darshan he returned back to his field. He has deposed thatthose two labours had also told him that they also wanted to takeDarshan of Palkhi. P.W.3 Vaijanath Kardile has deposed that thethird labourer had already gone to Mirawali Pahad to attend another on 27 01 2022 on 05 02 crapl702.14 11 religious function. P.W.3 Vaijanath Kardile has deposed that after5.00 p.m. the appellant accused came alone. He appeared to beunder the influence of liquor. P.W.3 Vaijanath Kardile had asked himas to where his colleague deceased Pandurang had gone. However he has shown his ignorance about it. P.W.3 Vaijanath Kardile hasdeposed that on the next date the appellant accused Avadhoot wasworking in his field alone. However after completing the day’s work the appellant accused Avdhoot told him that he wanted to return.Thus on 18.10.2012 in the evening P.W.3 Vaijanath Kardile hadhanded over an amount of Rs.520 to the appellant accused towardsthe work which he had done and accordingly appellant accusedAvdhoot had left his house. P.W.3 Vaijanath Kardile has alsodeposed that even for some time they had taken search of deceasedPandurang but he was not found. a.The evidence of P.W.4 Raosaheb Sonawane may not behelpful to the prosecution. However even if evidence of P.W.3Vaijanath Kardile is considered we do not find any evidenceindicating that deceased Pandurang was lastly seen alive in thecompany of appellant accused. It is necessary to repeat here thatthe dead body of deceased Pandurang was found on 19.10.2012.P.W.3 Vaijanath Kardile has also admitted in his cross examinationthat on 16.10.2012 deceased Pandurang and appellant accusedAvdhoot had no occasion to go together for Darshan of Palkhi in hispresence. Thus there is no evidence to substantiate the prosecution on 27 01 2022 on 05 02 crapl702.14 12 case that on 16.10.2012 deceased Pandurang left the field of P.W.3Vaijanath Kardile in the company of the appellant accused and hewas lastly seen alive at that time. Further there is a gap of nearabout 3 days when the dead body of Pandurang was found on19.10.2012. b)The prosecution has made one more attempt to prove that thedeceased was lastly seen alive in the company of the appellant accused. The prosecution has examined P.W.7 Natha Chaugula who is a liquor shop owner at village Hingangaon. According to him the appellant accused had come to his shop at about 2.00 p.m.alongwith one more person and purchased two pouches of countryliquor from his shop. The appellant accused and his friend went toJakhangaon. He claims to have identified the appellant accusedduring the identification parade but the prosecution has neither puthim any question as to who was that another person alongwith theappellant accused nor shown him the photograph of deceasedPandurang to substantiate its case that deceased Pandurang wasthe another person who accompanied the appellant accused to hisshop for purchase of country liquor pouches. P.W.7 NathaChaugula has also admitted in his cross examination that prior to thesaid incident the appellant accused had never come to his shop forpurchase of liquor. Thus evidence of P.W.7 Natha Chaugula is alsonot helpful for the prosecution. At the most evidence of P.W.7 NathaChaugula only indicates that on 16.10.2012 at about 2.00 p.m. the on 27 01 2022 on 05 02 crapl702.14 13 appellant accused alongwith one other person had gone to his shopfor purchase of two liquor pouches and nothing more than that. Sofar as identification of the appellant accused in the identificationparade by P.W.7 Natha Chaugula is concerned the same will bediscussed in the later part of the judgment. c)The prosecution has tried to connect the appellant accusedwith the commission of crime on the basis of one more circumstancethat is seizure of blood stained clothes of the appellant accused athis instance. The prosecution has examined P.W.9 BabasahebDarekar. He has failed to give details of memorandum panchnamaExh.27. He has merely stated that the appellant accused made astatement to produce the clothes. He has put signature on thememorandum at the instance of police. He has further deposed thatthey went to one bridge near Kalyan Road. There was a squareahead the bridge and also one gutter. He has further deposed thatthereafter the appellant accused had produced clothes i.e. a T shirtand a pant from the gutter. The police seized the same underrecovery panchnama Exh.28. P.W.9 Babasaheb Darekar the panchwitness has admitted in his cross examination that the police wastelling the directions to the driver when they were proceeding towardsthe bridge and at that time he was sitting alongwith the appellant accused in rear portion of vehicle. He has admitted that Patil Saheb(P.W.16 A.P.I. Milind Patil) told the driver to stop the vehicle nearbridge. There was no water in the guttar and only clothes were there. on 27 01 2022 on 05 02 crapl702.14 14 He has not deposed anything about blood stains on the clothes.P.W.16 A.P.I. Milind Patil though deposed about seizure of bloodstained clothes in presence of the panch witnesses however he hasalso not deposed about the blood stains on the clothes of theappellant accused. Though the appellant accused came to bearrested on 02.12.2012 as per the arrest panchnama Exh.62 however the said memorandum and recovery panchnama shown tohave been drawn on 5.12.2012. Furthermore if P.W.16 A.P.I. Patilwas giving directions as to where the clothes were hidden memorandum and recovery panchnama which came to be drawn interms of the provisions of Section 27 of the Evidence Act loses itssignificance. Even though the panch witness so also the P.W. 16A.P.I. Milind Patil have not disclosed about the blood stains however as per the report of the Chemical Analyzer Exh.73 humanblood was found on the full shirt of the appellant accused. We arenot inclined to rely upon this circumstance at all. It appears to us thatthe investigating officer created this evidence with some obliquemotive. d)So far as the evidence about identification parade isconcerned the prosecution mainly relied upon the evidence ofP.W.11 Bhaskar Bhos the Special Judicial Magistrate. P.W.11Bhaskar Bhos is not specifically empowered to conduct theidentification parade. P.W.3 Vaijanath Kardile and P.W.4 RaosahebSonawane both were knowing the appellant accused as he was on 27 01 2022 on 05 02 crapl702.14 15 working in their field as a labour for a considerable period. We do notfind any reason to conduct the identification parade of the appellant accused by calling said P.W.3 Vaijanath Kardile and P.W.4Raosaheb Sonawane. e)So far as evidence of P.W.7 Natha Chaugula is concerned the prosecution claims that he has identified the appellant accused.P.W.7 Natha Chaugula has admitted in his cross examination that on16.10.2012 for the first time the appellant accused had come to hisshop for purchase of liquor. He has further deposed that duringidentification parade the persons who were alongwith the accusedwere not wearing red shirt. It does mean that the appellant accusedalone wore red shirt. He has further admitted that some persons werehaving short height and some persons were taller. He has alsoadmitted that some persons in the row were having fair complexionand some of them were having dark complexion. It thus appears thatno care was taken while choosing the persons to stand in the row. Itis needless to say that the persons standing in the row alongwith theaccused must be of same appearance and height as far as possible. f)We have carefully perused the evidence of P.W.11 BhaskarBhos on the point of identification parade. He has not followed theguidelines laid down in the criminal manual for conducting theidentification parade. The same is also evident from the identificationparade Exh.36. on 27 01 2022 on 05 02 crapl702.14 16 g)Even assuming that P.W.7 Natha Chaugula has identified theappellant as the person who purchased two pouches of liquor fromhis shop alongwith some other person however the prosecution hasfailed to establish the identity of the other persons. The prosecutioncase thus rests upon guess work and conjectures. The prosecutionpresumed that the said person who accompanied the appellant accused while purchasing the pouches of liquor was none else butthe deceased. The prosecution has failed to establish thiscircumstance against the appellant accused. 9.Learned counsel for the appellant accused has placedreliance on the following two cases for appreciation of circumstantialevidence: v)Hari Om Alias Hero vs. State of Uttar Pradesh reportedin4 SCC 345vi)Musheer Khan alias Badshah Khan and another vs.State of Madhya Pradesh reported in2 SCC 748 10.In the case of Hari Om Alias Hero vs. State of UttarPradeshthe Supreme Court has obeserved that it is wellsettled that in case of circumstantial evidence all the incriminatingfacts and circumstances should be fully established by cogent andreliable evidence and the facts so established must be consistentwith the guilt of the accused and should not be capable of being on 27 01 2022 on 05 02 crapl702.14 17 explained away on any other reasonable hypothesis than that of hisguilt. The circumstantial evidence should unmistakably point to oneand one conclusion only that the accused person and none otherperpetrated the alleged crime. If the circumstances proved in aparticular case are not inconsistent with the innocence of theaccused and if they are susceptible of any rational explanation noconviction can lie.11.In the case of Musheer Khan alias Badshah Khan andanother vs. State of Madhya Pradeshrelied upon bylearned counsel for the appellant the Supreme court has observedthat the prosecution must establish a complete chain ofcircumstances and not the snapped and scattered links. TheSupreme Court has also considered the rule of prudence whileappreciating the circumstantial evidence. 12.So far as the confession Exh.42 is concerned it is well settledthat the confessional statement is admissible in evidence and it is arelevant fact. However the court may rely upon it if it is voluntarilymade. It may also form the basis of conviction. The confessionshould not only be voluntary but also should be uninfluenced by anyother factor. It is not open to a Magistrate recording the confessionto lead the accused as if he is examining a witness. A confessioncannot be used against an accused person unless the court issatisfied that it was voluntary. on 27 01 2022 on 05 02 crapl702.14 18 a)In the instant case P.W.11 Bhaskar Bhos the SpecialJudicial Magistrate on 15.12.2012 went to District Prison Ahmednagar for conducting identification parade for which he is notempowered. He has merely acted on the basis of letter Exh.35 dated14.12.2012 received from Nagar Taluka police station for conductingthe identification parade. After completing the said so calledidentification parade with quick succession he has proceeded forrecording part I of the confession statement Exh.37 of the appellant accused. It is to be mentioned here that the said identificationparade was conducted in respect of the appellant accused only andfor none else. b)Exh.37 is part I of the confession which contains record ofquestions put by P.W.11 Bhaskar Bhos Special Judicial Magistrateto the appellant accused. A great responsibility is thrown on theMagistrate while recording confession and it is not desirable that heshould observe the formalities only given in the printed form. Heshould also observe the spirit and for that purpose he should not bein hurry in starting to record the confession. He should put forwardevery endeavour to satisfy by fully questioning the accused as towhether he is making the confession voluntarily. P.W.11 BhaskarBhos the Special Judicial Magistrate has admitted in his cross examination that part Iof the confession was recorded informat. He was not aware even on 15.12.2012 that the appellant on 27 01 2022 on 05 02 crapl702.14 19 accused was going to give confession. P.W.11 Bhaskar Bhos hasfurther stated in his cross examination that he was having printedproforma of confession. He has also stated in the cross examinationthat he has not personally conducted verification of person ofaccused before recording the confession. He has further stated incross examination that in part I he has not made a noting that thepolice from Taluka police station was not present. c)So far as Part II of the confession Exh.42 is concerned though there is paper work indicating that after giving 24 hours torethink P.W.11 Bhaskar Bhos Special Judicial Magistrate hasrecorded the part II statement of the appellant accused voluntarily however he has accepted in his examination that he has notmentioned in the certificate at the bottom of comfession that thestatement given by the appellant accused was true and correct. Inthe criminal manual so far as the aspect of recording of confession isconcerned the following three certificates at the bottom of theconfession are contemplated. Certificate I :“Certified that the above confession was recorded in mypresence and hearing and the record contains a full andtrue account of the statement made by the accused.”Certificate II :“I have explained to .....that he is not bound tomake confession and that if he does so any confession on 27 01 2022 on 05 02 crapl702.14 20 he may make may be used as evidence against him and Ibelieve that his confession was voluntarily made. It wastaken in my presence and hearing and was read over tothe person making it and admitted by him to be correctand it contains a full and true account of the statementmade by him.”Certificate III : “I certify that on the following grounds I believe that theconfession is genuine :DipakbhaiJagdishchandra PatelHaricharan Kurmi & Another(supra) and Sarwan Sigh s o Rattan Singhon the point ofvoluntary nature of confession. However there is no reason todispute the legal position about voluntary nature of recording ofconfession in the above cited cases. on 27 01 2022 on 05 02 crapl702.14 22 14.Learned A.P.P. has relied upon the case Manoharan vs.State by Inspector of Policeof the Constitution andin the alternate its reliance for having been retracted by thepetitioner it may be briefly noticed that on a conjoint reading ofthe confessional scheme comprising of Sections 163 164Cr.P.C. and Section 24 IEA as construed in a catena ofdecisions of this Court it is obvious that even in the absence ofan express provision for retracting a confessionary statementonce made the Courts have preferred a rule of prudencewhereby in case of retraction the Court reduces the probativevalue of such confessionary statements and seekscorroborating evidence.24. Hence the cornerstone of a valid confession in India isonly whether such a statement was made in compliance withstatutory provisions which mandate that the same must bebefore the Magistrate after compliance with certain safeguardsmeant to ensure voluntariness and lack of coercion by thepolice. This has been so noted by this Court in Bharat v. Stateof U.P. “7. ... Confessions can be acted upon if the court issatisfied that they are voluntary and that they are true.The voluntary nature of the confession depends uponwhether there was any threat inducement or promiseand its truth is judged in the context of the entireprosecution case. The confession must fit into theproved facts and not run counter to them. When thevoluntary character of the confession and its truth areaccepted it is safe to rely on it. Indeed a confession if it on 27 01 2022 on 05 02 crapl702.14 23 is voluntary and true and not made under anyinducement or threat or promise is the most patentpiece of evidence against the maker. Retractedconfession however stands on a slightly differentfooting. As the Privy Council once stated in India it isthe rule to find a confession and to find it retracted later.A court may take into account the retracted confession but it must look for the reasons for the making of theconfession as well as for its retraction and must weighthe two to determine whether the retraction affects thevoluntary nature of the confession or not. If the court issatisfied that it was retracted because of anafterthought or advice the retraction may not weighwith the court if the general facts proved in the caseand the tenor of the confession as made and thecircumstances of its making and withdrawal warrant itsuser. All the same the courts do not act upon theretracted confession without finding assurance fromsome other sources as to the guilt of the accused.Therefore it can be stated that a true confession madevoluntarily may be acted upon with slight evidence tocorroborate it but a retracted confession requires thegeneral assurance that the retraction was anafterthought and that the earlier statement was true. ...”15.In para 29 of the judgment the Supreme Court has observedabout the use of retracted confession by referring the view expressedin Subramania Goundan v. State of Madras reported in AIR 1958SC 66 as well as by a four Judge Bench of the Court in Pyare LalBhargava vs. State of Rajasthan reported in AIR 1963 SC 1094.Para 29 of the judgment in Manoharanreads as under: “29. That apart even if the confession dated 20.11.2010 wereto be treated as being retracted vide letter dated 25.07.2012(as adopted during examination under Section 313 of theCode) still the original confession can be relied upon. Coupledwith corroborating evidence conviction can also be secured on on 27 01 2022 on 05 02 crapl702.14 24 the strength of such confession. The rule regarding use ofsuch retracted confessions was noted by this Court inSubramania Goundan v. State of Madras as well as by a four Judge Bench of the Court in Pyare lal Bhargava vs. State ofRajasthan holding that:“A retracted confession may form the legal basis of aconviction if the court is satisfied that it was true andwas voluntarily made. But it has been held that a courtshall not base a conviction on such a confessionwithout corroboration. It is not a rule of law but is only arule of prudence. It cannot even be laid down as aninflexible rule of practice or prudence that under nocircumstances such a conviction can be made withoutcorroboration for a court may in a particular case beconvinced of the absolute truth of a confession andprepared to act upon it without corroboration but it maybe laid down as a general rule of practice that it isunsafe to rely upon a confession much less on aretracted confession unless the court is satisfied thatthe retracted confession is true and voluntarily madeand has been corroborated in material particulars.”16.In the instant case we do not find the retracted confession astrue and voluntary. Further the same has not been corroborated inmaterial particulars. The prosecution has failed to prove the caseagainst the appellant accused beyond reasonable doubt. We haveobserved in the foregoing paras as to how the prosecution has failedto establish the chain of circumstances. 17.In view of the above in our considered opinion theprosecution has failed to prove the case against the appellant accused beyond reasonable doubt. The prosecution has failed toestablish the chain of circumstances. We have observed in the on 27 01 2022 on 05 02 crapl702.14 25 foregoing paras that at the most suspicion is created against theappellant accused but the said suspicion however strong it may be cannot take the form of legal proof. The appellant accused is thusentitled for benefit of doubt. Hence we proceed to pass the followingorder: O R D E R I.Criminal appeal is hereby allowed. II.The impugned judgment and order of convictionpassed by the Additional Sessions Judge Ahmednagar in Sessions Case No. 713dated 24.04.2014 thereby convicting the appellant accused Avdhoot Vithal Ghate for the offencepunishable under Section 302 of I.P.C. and sentencinghim to suffer rigorous imprisonment for life is herebyquashed and set aside.III.The appellant accused Avdhoot Vithal Ghate is herebyacquitted of all the charges. The appellant accusedshall be set at free forthwith if not required inconnection with any other case. IV.The appellant accused Avdhoot Vithal Ghate shallexecute P.B. of Rs.15 000 with one surety of thelike amount to appear before the higher court as andwhen the notice is issued in respect of any appeal orpetition filed against the judgment of this Court. Suchbail bonds shall remain in force for a period of sixmonths from the date of its execution. on 27 01 2022 on 05 02 crapl702.14 26 V.Criminal Appeal is accordingly disposed of.18.We quantify the legal fees and expenses of the learnedcounsel Mr. S.B. Jadhav appointed to represent the cause of theappellant for Rs.15 000 to be paidby the High Court Legal Services Sub Committee Aurangabad. (V. K. JADHAV J.) rlj

It is the duty of the Court and those involved, as long as possible and wherever possible, to uphold marital status: Tripura High Court

It is the obligation of the court and all concerned that the marriage status should, as far as possible, as long as possible and whenever possible, be maintained, but when the marriage is dead, in that event, nothing is gained by trying to keep the parties tied forever to a marriage which has ceased to exist. The judgement was passed by the High Court of Tripura in the case of Sri Nirmal Paul v. Smt. Namita Paul [RFA 18/2015] by Division Bench consisting of Hon’ble Justice Mr Akil Kureshi & Justice S.G. Chattopadhyay. The facts of the cases are that a month after marriage, his wife started misbehaving with him. At that time the appellant lived in a common mess with his old parents, three brothers and their families which was not liked by his respondent. She demanded a separate mess and told her husband that it was not possible on her part to prepare food for every member of the extended. Thereafter, the appellant filed the said petition under section 13(1)(ib) of the Hindu Marriage Act, 1955 in the Family Court at Agartala for divorce on the ground of desertion. Learned counsel for the appellant has argued that the parties are living separately for more than 15 years. During this period the wife has never met her appellant at her place which indicates that their relationship has broken down irretrievably and there is no chance of restoration of such relationship. It is contended by the learned counsel of the appellant that in a similar situation divorce was granted in favour of the husband by this Court in the case of Bidyut Kumar Saha Vs. Tapa Saha. Learned counsel, therefore, urges the court to put the marriage to an end by granting divorce in favour of the appellant. Learned counsel for the respondent on the other hand submits that she is not agreeable to divorce because she is always prepared to live with her appellant. According to learned counsel, it is only the appellant who is always keeping himself away from her company. Further submission of the learned counsel is that even after she was ousted from his house, she returned to her matrimonial home to live with her husband but she was not accepted by him. According to learned counsel, the appellant has failed to establish the ground of desertion against the respondent and therefore, a decree of divorce cannot be granted to him. Relying on the supreme court judgment in the case of Naveen Kohli Vs. Neelu Kohli, wherein it was held that “Undoubtedly, it is the obligation of the court and all concerned that the marriage status should, as far as possible, as long as possible and whenever possible, be maintained, but when the marriage is dead, in that event, nothing is gained by trying to keep the parties tied for ever to a marriage which has ceased to exist. In the instant case, there has been total disappearance of emotional substratum in the marriage. The course which has been adopted by the High Court would encourage continuous bickering, perpetual bitterness and may lead to immorality.”

Page HIGH COURT OF TRIPURA FA No. 015 Sri Nirmal Paul Son of Sri Bhubaneswar Paul resident of Village Madhya Pratapgarh P.O East Pratapghar P.S West Agartala Agartala District West Tripura. Appellant(s) Wife of Sri Nirmal Paul resident of Sonamura Udaipur PS. R.K. Pur District Smt. Namita Paul South Tripura Respondent(s) For Appellant(s) : Mr. P. Roy Barman Senior Advocate. Mr. Samarjit Bhattacharjee Advocate. : Mr. Kohinoor N Bhattacharya Advocate. For Respondent(s) Date of Hearing Date of Pronouncement Whether fit for reporting : : 1st February 2021. 22nd March 2021. : No HON‟BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON‟BLE MR. JUSTICE S.G. CHATTOPADHYAY JUDGMENT & ORDER Per S.G. Chattopadhyay J) The present appeal is filed by the appellant husband being aggrieved and dissatisfied with judgment dated 30.04.2015 passed by the Family Court Agartala in case No. TS3309 rejecting his petition for divorce. FA No. 015 Page 2] The facts in a nutshell are that appellant Nirmal Paul and respondent Smt. Namita Paul entered into matrimonial alliance as per Hindu rites and rituals at Agartala on 30th Baisakha 1408 B.S corresponding to 14th May 2001. It is the case of the appellant that a month after marriage his wife started misbehaving with him. At that time the appellant lived in a common mess with his old parents three brothers and their families which was not liked by his respondent wife. She demanded a separate mess and told her appellant husband that it was not possible on her part to prepare food for every member of the extended family. Her conduct and behavior to the appellant and his family members was very indignant and rude. She also used to visit her parents frequently and stay at her parental home for months together. However within few months of marriage she conceived and a daughter was born to them. 6 months after the birth of her daughter the respondent got a government job as teacher in an anganwadi centre at Udaipur. After getting her job she left the company of her appellant husband on 04.08.2005 and started living with her parents. The appellant visited his wife and daughter at her parental home several times to bring them back. But she wanted her appellant husband to stay with her at her parental home at Udaipur. He then filed a suit in the Family Court Agartala seeking restitution of conjugal rights which was registered as TS 55 of 2009 in the Family Court and after hearing the parties the Family Court decided the suit by directing the spouses to meet each other once in a week. Though the appellant met his wife and daughter at her parental home at Udaipur several times in terms of the said order of the Family Court but his respondent wife never came to Agartala to meet him. Rather she FA No. 015 Page implicated the appellant his mother younger brother and the husband of his sister in a case under section 498A IPC. Thereafter the appellant filed the said petition under section 13(1)(ib) of the Hindu Marriage Act 1955 in the Family Court at Agartala for divorce on the ground of desertion. In reply to the allegations of her husband respondent wife filed written objection. She denied every allegation of her husband and claimed that all those allegations were frivolous vexatious and false. According to her after marriage she was treated with extreme cruelty by her husband and in laws. It was alleged by her that on 3rd August 2005 her appellant husband and in laws physically assaulted her and on the following day they ousted her from her matrimonial home. She was then sheltered by her brother from where she lodged a case under section 498A IPC against her husband and in laws. Her case was registered in court as CR 493 of 2006 and after trial her appellant husband was found guilty. He was convicted and sentenced for imprisonment for 3 years by the trial court. Her appellant husband challenged the judgment in appeal. She also stated in her reply that right from the beginning of her marriage she received humiliating treatment from her husband and in laws. Though her parents gave valuables like jewellery furniture utensils and cash during her marriage her appellant husband demanded more cash after marriage. Since her parents were unable to fulfil his demand she was subjected to harassment at her matrimonial home. The neighbours noticed the incidents of cruelty meted out to her by her husband and in laws. According to her she never deserted her husband. Rather FA No. 015 Page her appellant husband drove her out of her matrimonial home after committing physical assault on her on 04.08.2005. She therefore wanted dismissal of the petition of her husband. which were as under: On the pleadings of the parties trial court framed 3 issues pertaining to maintainability of the suit and petitioner’s entitlement to divorce “1. Whether the petition is maintainable in its present form and nature 2. Whether the respondent is an ill tempered lady and deserted her matrimonial home without any reasonable cause or whether she was tortured by the husband and other family members on many occasions in demand of money and finally on 04 08 05 compelling her to take shelter in the house of her brother at Udaipur 3. Whether the petitioner is entitled to get a decree of divorce as prayed for ” During trial both the parties led oral evidence. The appellant husband adduced oral evidence of 4witnesses including himself. The other witnesses were his neighbours Sri Biswajit RoySmt. Shanti Pauland his younger brother Sri Ajit Paul 3309. Aggrieved appellant challenged the said judgment of the Family Court in FA No. 111 in this High Court. The matter was decided by this Court by the judgment and order dated 18.12.2014. It was then observed by this Court that opportunity was not given to the other side to cross examine the witnesses of the petitioner. Therefore the matter was remanded back to the trial court with the following directions: “8. Admittedly the procedure as laid down by the High Court in the aforesaid judgment has not been followed. Therefore without going into the merits of the case we set aside the judgment and decree of the Family Court and remand the matter to the Family Court to rehear the matter from the stage of framing of issues. 9. The parties shall be permitted to lead evidence and the opposite party shall be permitted to cross examine the witnesses in accordance with the aforesaid judgment. In view of the fact that the divorce petition was filed in the year 2009 we direct the learned Judge Family Court Agartala West Tripura to dispose of the case as early as possible and in any event not later than 31st July 2015. The parties through their counsel are directed to appear before the learned Judge Family Court Agartala West Tripura on In the course of fresh trial new issues were framed by the Family Court which were as under: FA No. 015 Page “1. Has the respondent petitioner been deserted by wife respondent and if so from what point of time 2. Is the petitioner entitled to a decree as prayed for ” During fresh trial after remand appellant husband examined himself as PW 1 and his neighbours Sri Biswajit Roy as PW 2 and Smt. Shanti Paul as PW 3. Similarly the respondent wife examined herself as DW 1 her elder brother Sri Mantu Ch. Rudrapaul as DW 2 and neighbour Khokan Ch. Das as DW 3. All witnesses were cross examined by the other side. On appreciation of evidence the trial court arrived at the following conclusion: “10. In view of the discussion made above I find that the petitioner failed to establish any fact to show that he has been deserted by his wife rather it appears that the respondent is still willing to live with her petitioner along with her daughter. No wrong or cruel activities on the part of the respondent could also be established. The allegations made by the PW 1 against his wife also appears to be general in nature and mere wear and tear of every marital life and cannot be treated as exceptional to constitute matrimonial offence to satisfy the requirement of the term 11. In case of desertion also their lordship observed in Savitry Pandey Vs. Prem Chandra Pandey 2 SCC 73 “Desertion” for the purpose of seeking divorce under the Act means the intentional permanent forsaking and abandonment of one spouse by the other without that other s consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things. therefore means withdrawing Desertion matrimonial obligations i.e. not permitting or allowing and facilitating the cohabitation between the parties.” FA No. 015 Page Having held so Family Court again rejected the petition for divorce by the impugned judgment and order dated 30.04.2015 which has been challenged by the appellant husband in the present appeal. The appellant husband in his deposition at the trial has replicated his plaint case. According to him his wife always misbehaved with him and his family members right from the beginning of the marriage. She was unwilling to share mess with his parents and brothers. Ultimately on 04.08.2005 she left her matrimonial home along with her daughter and started living at her parental home at Udaipur. According to the PW he met his wife in his in laws house several times to bring her back but she wanted him to stay with her at Udaipur. With a view to restore the conjugal relationship he filed a suit for restitution of conjugal rights in which both of them were directed to meet each other at their respective places once in a week. Though he met his wife at her place in terms of the said order his wife never came to his house which proves that she had withdrawn herself permanently from his company. Then he filed a petition for divorce in the Family Court. In cross examination the appellant husband admitted that he was convicted and sentenced in a case lodged by his wife under section 498A IPC. He denied to have committed any torture on his wife. In his cross examination he also denied the fact that after their separation in the year 2005 his wife returned back to him along with their daughter and thereafter again she had to leave her matrimonial home since she was threatened by the PW with dire consequence. FA No. 015 Page Sri Biswajit Roy who is a neighbour of the appellant husband stated that the respondent wife of the appellant was living with her parents at Udaipur. When the PW met her at Udaipur she told him that she was not willing to continue her conjugal relationship with her appellant husband. But in his cross examination he said that he was not aware about the address of the parental house of the respondent wife of the appellant. Smt. Shanti Paul is also a neighbour of the appellant husband. She stated at the trial that 15 days after their marriage the respondent wife demanded a separate mess. Pursuant to her demand her appellant husband started living in a separate mess with her but she was not happy. She wanted her husband to leave with her for Udaipur for living in her parental home. The appellant did not agree to her proposal. The PW further stated that at the time of delivery of their daughter the PW was all along with the respondent wife so long she was admitted in IGM hospital at Agartala. Her husband was very caring who used to visit his respondent wife every day in hospital and provide food to her in the hospital. But after the child was born the wife left for Udaipur and started living at her parental home. According to the PW the husband met his respondent wife several times at Udaipur to bring her back but she refused to come back. In her cross examination she denied that the respondent wife was willing to come back to her matrimonial home to live with her husband. FA No. 015 Page The wife on the other hand deposed as DW 1. According to her her husband was an alcoholic who always used to quarrel with her. After the birth of their daughter he demanded cash from her parents and started torturing her for fulfilling his demand. On 03.08.2005 he physically assaulted her and on the following day he ousted her from his home. For about 10(ten) months thereafter her husband did not meet her. In such a situation she filed a complaint against her husband and in laws. Thereafter her husband also filed a case in the Family Court for restitution of conjugal rights. It was stated by her that in terms of the order of the Family Court she used to visit her husband along with her daughter every Saturday and after staying 2(two) days with her husband she used to leave on Monday morning for Udaipur. She was always willing to live with her husband but her husband avoided her company and he did not discharge any of his obligations to her. She stated in her cross examination that she did not lodge complaint against her husband immediately after their separation. She stated that she lodged the case 10(ten) months after their separation. In her cross examination she also denied the allegation of her husband that she was rude and indignant to her husband and in laws and she never discharged her matrimonial obligations. Her elder brother Sri Mantu Ch. Rudrapaul stated that his respondent sister was always ill treated at her matrimonial home. He also stated that the appellant husband of his sister ousted her from her matrimonial home after committing physical assault on her. He further stated that the appellant FA No. 015 Page 1 husband of his sister brought false allegations against his sister only to obtain a divorce. It was also stated by the DW that before marrying his sister the appellant also divorced his first wife. In his cross examination he denied the suggestions which were put to him by the counsel of the appellant. He denied that his sister left the company of her husband on her own volition and he also denied that his sister was never tortured by her appellant husband. Sri Khokan Ch. Das a neighbour of the respondent wife stated that after the birth of their daughter the appellant husband of the respondent did not take any care of her. Rather he started torturing her at her matrimonial home and she was ousted from there along with their new born daughter. In his cross examination the DW denied that the statements he made before the court were untrue. In this factual background learned counsel for the appellant has argued that the parties are living separately for more than 15 years. During this period the wife has never met her appellant husband at her place which indicates that their relationship has broken down irretrievably and there is no chance of restoration of such relationship. It is contended by learned counsel of the appellant that in similar situation divorce was granted in favour of the husband by this Court in the case of Bidyut Kumar Saha Vs. Tapa Saha reported in FA No. 015 Page 1 MANU TR 0138 2020. Learned counsel therefore urges the court to put the marriage to end by granting divorce in favour of the appellant. Learned counsel appearing for the respondent wife on the other hand submits that she is not agreeable to divorce because she is always prepared to live with her appellant husband. According to learned counsel it is only the appellant who is always keeping himself away from her company. Further submission of learned counsel is that even after she was ousted from his house she returned to her matrimonial home to live with her husband but she was not accepted by him. According to learned counsel the appellant has failed to establish the ground of desertion against the respondent wife and therefore decree of divorce cannot be granted to him. Apparently appellant’s petition for divorce is founded solely on the ground of desertion. Clause of sub section of Section 13 of the Hindu Marriage Act specifies desertion as one of the grounds of divorce which reads as “13(1) Any marriage solemnised whether before or after the commencement of this Act may on a petition presented by either the husband or the wife be dissolved by a decree of divorce on the ground that the other party has deserted the petitioner for a continuous period of less than two years presentation of the petition or]” immediately preceding FA No. 015 Page 1 Section 13(1)(ib) of the Hindu Marriage Act thus denotes that desertion by the offending spouse for a continuous period of not less than 2years should preceed the presentation of the petition for divorce by the other spouse. In this case the appellant husband has alleged that his wife deserted him on 04.08.2005 and 4 years thereafter he filed the petition for divorce at Family Court at Agartala on 23.12.2009. Therefore technically such a petition was entertainable but it needs to be looked into as to whether in the context of matrimonial offence the appellant husband has been able to prove desertion against his respondent wife. Desertion for the purpose of divorce has not been defined anywhere in the Hindu Marriage Act. The expression “desertion” appearing in Section 13 of the Hindu Marriage Act has been interpreted in various judicial pronouncements. It is held that the essence of desertion is animus deserendi or the intention on the part of the offending spouse to bring cohabitation permanently to an end without reasonable cause against the consent or wish of the other spouse. About how to arrive at the conclusion as to whether one spouse has been deserted by the other within the meaning of Section 13(1)(ib) of the Act the Apex Court in Sanat Kumar Agarwal Vs. Nandini Agarwal reported in 1 SCC 475 has viewed that the question of desertion is a matter of inference which has to be drawn from the facts and circumstances of each case and observed as under: “5. It is well settled that the question of desertion is a matter of inference to be drawn from the facts and circumstances of each case and those facts have to be viewed as to the purpose FA No. 015 Page 1 which is revealed by those facts or by conduct and expression of intention both interior and subsequent to the actual act of separation.....................” In the given context ostensibly the respondent wife abandoned her husband on 04.08.2005 along with their daughter and according to the appellant husband she did not come back to her matrimonial home thereafter. Whether divorce can be granted for such conduct of the respondent wife has to be decided in the peculiar factual context of this case. Before we do so it would be appropriate to refer to the decision of the Apex Court in Savitri Pandey Vs. Prem Chandra Pandey reported in2 SCC 73 where the Apex Court dealt with the concept of desertion in the context of divorce and held as under: to be considered by 8. Desertion" for the purpose of seeking divorce under the Act means the intentional permanent forsaking and abandonment of one spouse by the other without that other s consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion therefore means withdrawing matrimonial obligations i.e. not permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself it is a continuous course of conduct to be determined under the facts and circumstances of each case. After referring to a host of authorities and the views of various authors this Court in Bipinchandra Jaisinghbai Shah v. Prabhavatiheld that if a spouse abandons the other in a state of temporary passion for example anger or disgust without intending permanently to cohabitation FA No. 015 Page 1 Relying on Savitri Pandey the Apex Court reiterated in Malathi Ravi M.D. Vs. B.V. Ravi M.D. reported in 7 SCC 640 that desertion in its essence means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and without reasonable cause. 23] In the instant case looking into the conduct of the parties subsequent to the filing of the divorce petition no inference can be drawn that the respondent wife ever intended permanent abandonment of the company of her husband. In A. Jayachandra Vs. Aneel Kaur reported in2 SCC 22 the Apex Court observed that acts of the spouses subsequent to the filing of the divorce petition can be looked into to infer condonation of the aberrations acts subsequent to the filing of the petition can be taken note of to show a pattern in the behaviour and conduct. In the given case the appellant husband in his testimony at the trial before the Family Court has categorically stated that his wife always wanted him to stay with her at Udaipur. Since her proposal was not agreeable to him he filed a suit for restitution of conjugal rights at the Family Court at Agartala. It is admitted by the husband that in terms of the direction of the Family Court he used to meet and stay with her at Udaipur. Admittedly his respondent wife never objected his stay with her at Udaipur. In her evidence as DW 1 the respondent wife also stated that she used to visit her husband at Agartala along with her FA No. 015 Page 1 daughter after the order was passed by the Family Court in the suit for restitution of conjugal rights. According to her since she was doing a Govt. job at Udaipur she used to come on every Saturday to the place of her husband and leave on Monday morning to resume her duties at Udaipur. All those meetings between the spouses took place after the respondent wife allegedly abandoned her husband on Such evidence viewed in the light of law enunciated by the Apex Court in the judgments cited to supra does not support the case of the permanent abandonment of his company by his respondent wife. We may recall that learned senior counsel appearing for the appellant husband relying on the decision of this Court in the case of Bidyut Kumar Saha contended that the parties were living apart from the year 2005 and according to learned counsel in view of their long separation the court may presume that the marriage between the parties has irretrievably broken down and a decree of divorce may be granted on such ground in favour of the appellant. The argument is not acceptable firstly because the decision in the case of Bidyut Kumar Saha was rendered by this court in a completely different factual context and secondly because long separation between the couple is not a sure sign of irretrievable break down of marriage. It is seen in many cases that even after long separation the spouses reunited renewed their relationship FA No. 015 Page 1 and lived together till the end of their life. Moreover in the given context the spouses admittedly lived together even after the alleged separation between them. With regard to the ground of irretrievable break down of marriage the Apex Court in Shyam Sunder Kohli Vs. Sushma Kohli Alias Satya Devi reported in7 SCC 747 held that on the ground of irretrievable break down of marriage the court must not lightly dissolve the marriage. It is only in extreme circumstances that the court may use this ground for dissolving the In a later decision in Naveen Kohli Vs. Neelu Kohli reported in 2006) 4 SCC 558 though the Apex Court granted divorce because in view of the fact that the marriage between the parties had broken down irretrievably in paragraph 85 of the judgment it was held by the Apex Court that it is the obligation of the court and all concerned that marriage status should as far as possible as long as possible and whenever possible be maintained. In the said case following observation was made by the Apex Court: “85.Undoubtedly it is the obligation of the court and all concerned that the marriage status should as far as possible as long as possible and whenever possible be maintained but when the marriage is totally dead in that event nothing is gained by trying to keep the parties tied forever to a marriage which in fact has ceased to exist. In the instant case there has been total disappearance of emotional substratum in the marriage. The course which has been adopted by the High Court would encourage continuous bickering perpetual bitterness and may lead to immorality.” FA No. 015 Page 1 For what has been discussed by us the marital bond between the parties cannot be said to have gone beyond repair and as such the ground of irretrievable break down of marriage as expounded by learned counsel of the appellant is not acceptable to us. Since the appellant has failed to prove the ground of desertion against his respondent wife the impugned judgment of the Family Court Agartala does not call for any interference. Resultantly the appeal stands Send down the LC record. S.G. CHATTOPADHYAY) J CJ Rudradeep FA No. 015

The Court can interfere to rectify the wrong committed by the State Commission under Article 227: Calcutta High Court

Under Articles 226 and 227 of the Constitution of India, the High Court does not interfere where an equally efficacious alternative remedy is available to the aggrieved party. But where a case is an example of a gross miscarriage of justice and abuse of the process of court, the court exercises its superintending jurisdiction under Article 227 of the Constitution of India. A single-judge bench comprising of  Justice Sabyasachi Bhattacharyya in the matter of Smt. Chandrani Sarkar Vs. Sudipa Chowdhury and others (Co No. 1186 of 2020), dealt with an issue where the petitioner, has filed an application under Article 227 of the Constitution of India against the order passed by the State Consumer Disputes Redressal Commission. In the present case on June 16, 2016, the petitioner purchased the disputed property by registered deed from the owner of the property and an alleged constituted attorney of the Owner. Initially, the opposite party no. 1 had filed a complaint against opposite party no. 2, before the consumer forum alleging that opposite party no 2 had refused to honor the agreement of sale of disputed Property to opposite party no. 1, which opposite party no. 2 agreed to in the agreement. On Feb 28, 2014, an award was passed against the favor of opposite Party no. 2 directing delivery of possession to opposite party no. 1, in the alternative for a refund of the consideration money. To this Opposite party, No 1 initiated an Execution Appeal (EA 251 0f 2014) where the execution forum had directed an advocate commissioner to execute a registered deed of conveyance on behalf of opposite party no.2 and the police also directed to handover the possession of the disputed property to opposite party no.1. to this direction, the advocate commissioner executed and registered a sale deed in favor of the opposite Party no. 1, which is subsequent to the purchase deed of the petitioner. Now opposite party no. 3 had already handed over possession of the disputed flat to the petitioner’s husband so handing over the possession of such flat to opposite party no. 1 was not possible. But, as per the order, Opposite party no. 2 was directed to refund the consideration money which was taken from opposite party no.1, and also a warrant of arrest was executed against opposite party no. 2, to implement execution. On 30th August, 2019 the opposite party no.1 made an application in EA 251 of 2014, for recovery of possession of the flat from the petitioner’s husband, who was already residing in the disputed flat. Moreover, as because the warrant of arrest was not possible to be executed anymore, so the executing Forum directed the police to assist the opposite party no. 1 in recovering the possession of the disputed flat. Thereafter the opposite party no. 1 with the help of police put her padlock over the petitioner padlock on the entrance of the flat. On June 30, 2020, the appellate commission had set aside both of the impugned orders and the awards passed regarding police help and taking possession from the petitioner’s husband, both were nullified. But the state commission could not grant complete relief to the petitioner by not granting restoration of possession to the petitioner/petitioner’s husband. Whereas such possession was obtained by the help of those two impugned orders in the appeals, both of which were set aside. The petitioner contended that the executing forum acted beyond its jurisdiction. Its charter was limited to executing the award, which stated alternative of possession to be handed over to the opposite party no 1 that is the opposite party no. 2 was directed to refund the consideration amount to opposite party no. 1, as well as a warrant of arrest, was issued against opposite party no.1, to implement the execution. Moreover, the petitioner also contended that even after knowing that the petitioner’s family was in possession of such flat on the basis of a valid sale deed, yet the executing forum directed delivery of possession to opposite party no. 1, with police help. The counsel of the Petitioner pointed out that the direction to execute and register a deed of Conveyance in favor of opposite party no. 1 was not valid because, the petitioner had prior title over the flat by virtue of the previously registered sale deed, and hence it would prevail over the subsequent sale deed in favor of the Opposite party no.1. The counsel appearing for opposite party no.1 contended that in such a situation opposite party no. 1 is not be blamed as a valid order was passed by executing a forum granting police help for taking back possession. It also contended that the possession granted in favor of the opposite party was legal and valid as pursuant to the order of executing forum, when the possession was delivered to opposite party no. 1, it was done before the appeal was made before the state commission, against such order. Hence such order was still in force. Further, the counsel for the opposite party no.1 also contended that in the year 2020 a title suit was initiated by the opposite party no. 1 in respect of the suit flat before a civil court. In this view, an injunction order was passed restraining the petitioner from disturbing the peaceful possession of opposite party no.1. hence the Authority of the State Commission cannot override the decision of the civil court, where the question of title is still sub judice. Later the court  after considering the contentions of both sides came to the conclusion that” under normal circumstances, the High Court does not interfere in judicial review under Articles 226 and 227 of the Constitution of India where an equally efficacious alternative remedy is available to the aggrieved party, such interference is justified in cases like the one at hand, which is a burning example of a gross miscarriage of justice and abuse of the process of the court.” In the present case, the injunction order was obtained by practicing fraud and by suppressing material facts because the possession of the opposite party after June 30, 2020, it cannot be said to be legal. Also, it was considered that the possession of the flat remained with the petitioner as the petitioner’s padlock was never removed from the Disputed flat rather an additional padlock was affixed by the opposite party no. 1 with the help of the police. Hence the opposite party no. 1 has never taken actual possession of the disputed flat. The Court allowed the application, thereby modifying the impugned order passed by the State Consumer Redressal Commission and, the opposite party no.1 is directed to restore possession of the flat-in-dispute to the petitioner at the earliest within 30 days from the date of this order. In case of default of compliance of the court’s order, the court held the petitioner in liberty to approach a local police station for assistance in breaking open the padlock of the opposite party no. 1 and restoring back possession of the flat, and in such situation, the local police is to provide all possible assistance to the petitioner.  

The Hon’ble Justice Sabyasachi Bhattacharyya In the High Court at Calcutta Civil Revisional Jurisdiction Appellate Side CO No. 11820 IA No: CAN 20 Old No: CAN 59420) Smt. Chandrani Sarkar Sudipa Chowdhury and others Mr. Partha Pratim Roy Mr. Dyutiman Banerjee Mr. Arijit Chakrabarti Mr. S.S. Dhar Mr. Nilotpal Chowdhury For the petitioner For the opposite party No.1 Hearing concluded on Judgment on Sabyasachi Bhattacharyya J: 1. The present application under Article 227 of the Constitution of India arises against an order dated June 30 2020 passed by the State Consumer Disputes Redressal Commission on contest whereby both the orders impugned therein were set aside. Two separate appeals had been preferred before the Commission. First Appeal No. A 885 2019 was filed against an award passed by the District Forum on February 28 2014 whereby the opposite party no.1 obtained an award against the opposite party no.2 for possession in the alternative refund of the consideration money allegedly paid by the opposite party no.1 to the opposite party no.2 in respect of the disputed property. The other appeal bearing no.A 3 2020 was preferred against an order bearing Order No.50 dated September 26 2019 whereby police assistance was directed for the opposite party no.1 to get possession of the property in dispute. 2. The short background of the case is as follows: 3. The opposite party no.1 filed a complaint before the consumer forum giving rise to CC No.114 alleging that despite having entered into an agreement for sale of the disputed property in favour of the opposite party no.1 the opposite party no.2 had refused to honour the same. 4. Ultimately the opposite party no.2 did not contest the proceeding and on February 28 2014 an award was passed directing delivery of possession in favour of the opposite party no.1 in the alternative for refund of the consideration money. 5. On June 16 2016 the present petitioner purchased the disputed property from the original owner and an alleged constituted attorney of the owner by a registered deed. In the meantime EA 251 of 2014 was initiated by opposite party no.1 against the opposite party no.2 for execution of the award dated February 28 2014. On December 19 2016 the executing forum directed an Advocate Commissioner to execute a registered deed of conveyance in favour of the opposite party no.1 on behalf of the opposite party no.2. Further the police was directed to hand over possession of the disputed flat to opposite party no.1 7. Pursuant to the aforesaid direction of the executing forum an Advocate Commissioner executed and registered a sale deed in favour of the opposite party no.1 on July 4 2017 that is subsequent to the purchase deed of the present petitioner. 8. The matter dragged on since the present petitioner was in possession of the flat and such possession could not be handed over to the opposite party no.1. A police report filed in the execution proceeding was considered vide order no. 33 dated May 31 2018 by the executing forum which reflected that the husband of the present petitioner namely Dipankar Sarkar was residing in the said flat. The opposite party no.3 had handed over possession to the petitioner’s husband by a registered deed which was also recorded in the order dated May 31 2018. By the said order the opposite party no.2 was directed to refund the consideration money taken from the opposite party no.1 and a warrant of arrest was issued against the opposite party no.2 to implement execution. 9. On August 30 2019 opposite party no.1 made an application in EA 251 of 2014 to recover possession from the petitioner’s husband in respect of the suit flat where the petitioner also resides. 10. Vide Order No.50 dated September 26 2019 on the ground that the warrant of arrest against the opposite party no.2 could not be executed the executing forum directed the police to assist the opposite party no.1 in getting possession of the disputed flat. 11. Pursuant thereto on October 18 2019 the opposite party no.1 put her own padlock over the petitioner’s padlock on the entrance of the flat with police help. 12. It is contended by the petitioner that the executing forum acted beyond jurisdiction in directing delivery of possession in favour of the opposite party no.1 since its charter was limited to executing the award dated February 28 2014 which specifically stipulated that in the alternative of possession being handed over to opposite party no.1 the said opposite party would be entitled to refund of money from opposite party no.2. However subsequently the opposite party no.1 sought possession of the flat as well. Even in the order dated May 31 2018 the executing forum had directed the opposite party no.2 to refund money to the opposite party no.1 as well as issue a warrant of arrest against the opposite party no.2 on the specific finding that the petitioner’s husband was residing in the flat. 13. It is argued that subsequently the executing forum deviated from such position and directed delivery of possession with police help despite being fully aware of the fact that the petitioner and her family was in possession of the said flat on the basis of a valid sale deed. 14. It is further contended that since the Appellate Commission vide order dated June 30 2020 had set aside both the orders impugned therein in the two appeals bearing Nos. A 885 2019 and A 3 2020 respectively the award itself passed on February 28 2014 as well as the police help order passed on September 26 2019 for taking possession from the petitioner’s husband were nullified. However the State Commission stopped one step short of granting complete relief to the petitioner by not granting restoration of possession to the petitioner petitioner’s husband despite such possession having been obtained solely on the basis of the award and the police help order impugned in the appeals both of which were set aside. 15. Learned counsel for the petitioner further argues that the direction to execute and register a deed of conveyance in favour of the opposite party no.1 was not only beyond the authority of the executing forum since the original award did not contain any such provision such deed was registered on July 4 2017 that is subsequent to the petitioner’s purchase deed dated June 16 2016. Hence in any event the petitioner’s prior title in the property by virtue of the previous registered sale deed prevails over the subsequent sale deed in favour of the opposite party no.1. 16. Learned counsel appearing for the opposite party no.1 contends that the opposite party no.1 is not to blame for the plight of the petitioner. It is contended that a valid order was passed by the executing forum granting police help for taking possession on December 19 2016 itself. 17. That apart when the possession was delivered in favour of the opposite party no.1 pursuant to the order of the executing forum the appeal before the State Commission against the said order had not seen the light of day and hence the order was still in force. Thus the possession granted in favour of the opposite party no.1 was legal and valid. 18. It is further contended that in the year 2020 a title suit bearing Title Suit No.3420 has been preferred by opposite party no. 1in respect of the suit flat before a civil court. In the said suit an order of injunction was passed at the instance of the present opposite party no.1 restraining the petitioner from disturbing the peaceful possession of opposite party no.1. Hence in view of the injunction order as well as since the matter is sub judice before a competent civil court having jurisdiction to decide title no order of restoration of possession could have been granted by the State Commission. The authority of the State Commission cannot override the decision of the civil court where the question of title is till sub judice. 19. It appears from the contentions of the parties as well as the materials on record that by the order impugned in the present application under Article 227 of the Constitution both the order dated September 26 2019 inter alia directing police assistance for the opposite party no.1 to take possession of the disputed flat as well as the parent award passed by the District Forum on February 28 2014 which was the very basis of the execution case itself had been set aside. 20. In such view of the matter as on the date of passing of the order impugned herein the award which was the basis of the execution application as well as the specific direction of police help for the opposite party no.1 to take possession from the petitioner were non existent. In such circumstances the State Commission failed to exercise jurisdiction vested in it by law in refusing to direct restoration of possession to the present petitioner since such a direction was a necessary corollary of the order setting aside the award and the police help order. 21. That apart it is well settled that all courts and tribunals are competent enough to remedy any wrong committed by themselves. In such scenario there was no bar or legal impediment for the State Commission to direct restoration of possession to the petitioner to undo the wrong committed against the petitioner by virtue of the District Forum orders impugned before the State Commission. 22. The second aspect of the matter which catches the eye is that even giving a go bye to all other grounds the sale deed executed in favour of the opposite party no.1 was subsequent to that executed and registered in favour of the petitioner. Hence the petitioner’s title ex facie prevails over the alleged title of the opposite party no.1 by virtue of prior transfer. 23. Thirdly the direction of the executing forum to execute a registered deed of conveyance in favour of the opposite party no.1 was patently de hors its jurisdiction being beyond the scope of the parent award dated February 28 2014 which merely directed possession in the alternative refund of money. Since possession could not be delivered physically as well as in view of the prior title acquired by the petitioner the remedy of refund was in any event available to the opposite party no.1 against the opposite party no.2. Such questions in fact became academic when the State Commission by the impugned order set aside both the award and the subsequent police help order which negated the award as well as the police help direction which were the very bases of the possession of opposite party no.1. 24. That apart it is the petitioner who was residing with her family in the flat pursuant to a valid deed of purchase which was registered on June 16 2016. Such possession could not be snatched away at the drop of a hat and justified on the strength the now non existent award of the District Forum and or an order of the executing forum the execution application itself having become infructuous. 25. Thus the very basis of the possession of the opposite party no.1 was rendered invalid and illegal by the order dated June 30 2020 passed by the State Commission. 26. Hence it does not lie in the mouth of the opposite party no.1 that a dispute raised by the opposite party no.1 herself before a civil court would ipso facto be an impediment to delivery of possession back to the petitioner by the consumer forum itself. 27. As far as the injunction order passed by the civil court is concerned it is an admitted position that the same restrained the petitioner from disturbing the “peaceful possession” of the opposite party no.1. Such order in any event pre supposes the valid and legal possession of the opposite party no.1. In the present case the possession remained with the petitioner since the petitioner’s padlock was never removed from the disputed flat entrance but in addition a padlock of the opposite party no.1 was affixed thereon with the help of police. Therefore the opposite party no.1 has never taken actual physical possession of the said flat. 28. Moreover the injunction order was obtained by practising fraud upon the civil court and vitiated due to suppression of material facts since the possession of the opposite party no.1 after June 30 2020 could not be said to be legal more so in the face of the prior title deed of the petitioner. 29. As far as the cited judgments are concerned South Eastern Coalfields Ltd. vs. State of M.P. and others reported at AIR 2003 SC 4482 leaves the discretionary powers under Section 144 of the Code of Civil Procedure in the hands of the court to undo the wrong if any committed due to the order which has been set aside. Although specific conferment of such power is not specifically vested in the State Commission such power is implicit in any judicial quasi judicial tribunal and or court of law. 30. Binayak Swain vs. Ramesh Chandra Panigrahi and others reported at AIR 1966 SC 948 also endorses the view that such obligation arises automatically on the reversal or modification of a decree and necessarily carries with it the right to restitution of all that has been done under the erroneous decree. 31. In Karnataka Housing Board vs. K.A. Nagamani reported at AIR 2019 SC 2290 it was held that the National Commission had no jurisdiction to entertain a revisional application against an order passed in execution proceedings by the State Commission. 32. Malay Kumar Ganguly vs. Sukumar Mukherjee and others reported at AIR 2010 SC 1162 specifically observed that the Commission is to comply with the principles of natural justice save and except the ones laid down under sub sectionof Section 13 of the 1986 Act. 33. Apart from the aforesaid decisions it has been repeatedly held by the Supreme Court as well as this court that although under normal circumstances the High Court does not interfere in judicial review under Articles 226 and 227 of the Constitution of India where an equally efficacious alternative remedy is available to the aggrieved party such interference is justified in cases like the one at hand which is a burning example of gross miscarriage of justice and abuse of the process of court. This court cannot shut its eyes to a patent illegality in refusing restoration of possession to the petitioner in view of the manner in which the petitioner was ousted from the disputed flat of which the petitioner has been a lawful owner at all relevant times. Mere availability of an alternative remedy is not an absolute bar as also held by the Supreme Court time and again. The present case is a perfect instance 11 where the superintending jurisdiction under Article 227 of the Constitution of India ought to be exercised to rectify the wrong committed by the State Commission in refusing restoration of possession to the petitioner which ought to have automatically followed the reversal of the parent award and subsequent police help order. 34. Accordingly CO No.1186 of 2020 is allowed thereby modifying the impugned order dated June 30 2020 passed by the State Consumer Disputes Redressal Commission West Bengal in A 3 2020 along with A 885 of 2019 to the extent that the opposite party no.1 is directed to restore possession to the petitioner in respect of the flat in dispute at the earliest positively within thirty days from the date of this order. In default of compliance of such direction the petitioner shall be at liberty to approach the local police station for assistance in breaking open the padlock of the opposite party no.1 and in restoring back possession to the petitioner in respect of the said flat. If such an approach is made the local police will render all possible assistance to the petitioner in that 35. IA No: CAN 1 of 2020 is disposed of regard. accordingly. 36. There will be no order as to costs. 12 37. Urgent certified copies of this order shall be supplied to the parties applying for the same upon due compliance of all requisite formalities. Sabyasachi Bhattacharyya J. )

Election Petition cannot be dismissed on account of curable defects: Supreme Court of India

The verifying affidavit in support of the election petition need not be thrown out merely because it is not in Form 25 as prescribed under Rule 94A of Conduct of Election Rules, 1961. Such an observation was made by the Hon’ble Supreme Court before Hon’ble Justice Sanjay Kishan Kaul & Hon’ble Justice M.M. Sundresh in the matter of A. MANJU vs PRAJWAL REVANNA @ PRAJWAL R & ORS [CIVIL APPEAL NO. 1774 OF 2020]. The facts of the case were that the appellant was a candidate from 16 Hassan (General) Parliamentary Constituency in the 2019 elections and was stated to have been sponsored by the Bharatiya Janata Party. Respondent No.1 was sponsored by Janatha Dal Secular Party and was also a candidate from the Constituency. Respondent Nos. 2 to 6 were sponsored by local/regional parties but, as transpired from the elections, were not serious contestants in real terms. The appellant secured 5,35,282 votes while respondent no.1 secured 6,76,606 votes. The appellant preferred an election petition under Section 81 of the Representation of People Act, 1951 on 26.06.2019 challenging the election of respondent no.1. The appellant sought a declaration that respondent no.1’s election was liable to be declared void on account of respondent no.1 having filed a false affidavit and consequently the appellant should be declared as duly elected. This petition was resisted by respondent no.1 at the threshold who filed an application under Order VII Rule 11 read with Section 151 of the Code of Civil Procedure, 1908  and Section 86(1) of the Representation of People Act, 1951 seeking dismissal of the election petition on account of non-compliance of Section 81(3) and the proviso to Section 83(1) of the Representation of People Act, 1951. Thus, the instant appeal arose. The Hon’ble Supreme Court referred to the case of Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore AIR 1964 SC 1545 : (1964) 3 SCR 573 wherein it was held that “the defect in the verification of an affidavit cannot be a sufficient ground for dismissal of the petitioner’s petition summarily and such an affidavit can be permitted to be filed later.” Furthermore, the Hon’ble Supreme Court also stated that the above constitution bench judgment was also referred in G.M. Siddeshwar v. Prasanna Kumar (2013) 4 SCC 776 to come to a conclusion that non-compliance with the proviso to Section 83(1) of the RP Act was not fatal to the maintainability of an election petition and the defect could be remedied, i.e., even in the absence of compliance, the petition would still be called an election petition. Additionally, the Hon’ble Supreme Court observed that “If we look at the election petition, the prayer clause is followed by verification. There is also a verifying affidavit in support of the election petition. Thus, factually it would not be appropriate to say that there is no affidavit in support of the petition, albeit not in Form 25. This was a curable defect and the learned Judge trying the election petition ought to have granted an opportunity to the appellant to file an affidavit in support of the petition in Form 25 in addition to the already existing affidavit filed with the election petition.” Finally, Hon’ble Supreme Court set aside the impugned order of the learned single Judge dated 17.1.2020 and the application filed by respondent no.1 under Order 7 Rule 11, S. 151 of the said Code and S. 86(1) of the RP Act would stand dismissed with liberty to the appellant to file an appropriate affidavit in Form 25 within fifteen (15) days from the date of the order. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur The facts of the case were that the appellant was a candidate from 16 Hassan (General) Parliamentary Constituency in the 2019 elections and was stated to have been sponsored by the Bharatiya Janata Party. Respondent No.1 was sponsored by Janatha Dal Secular Party and was also a candidate from the Constituency. Respondent Nos. 2 to 6 were sponsored by local/regional parties but, as transpired from the elections, were not serious contestants in real terms. The appellant secured 5,35,282 votes while respondent no.1 secured 6,76,606 votes. The appellant preferred an election petition under Section 81 of the Representation of People Act, 1951 on 26.06.2019 challenging the election of respondent no.1. The appellant sought a declaration that respondent no.1’s election was liable to be declared void on account of respondent no.1 having filed a false affidavit and consequently the appellant should be declared as duly elected. This petition was resisted by respondent no.1 at the threshold who filed an application under Order VII Rule 11 read with Section 151 of the Code of Civil Procedure, 1908  and Section 86(1) of the Representation of People Act, 1951 seeking dismissal of the election petition on account of non-compliance of Section 81(3) and the proviso to Section 83(1) of the Representation of People Act, 1951. Thus, the instant appeal arose. The Hon’ble Supreme Court referred to the case of Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore AIR 1964 SC 1545 : (1964) 3 SCR 573 wherein it was held that “the defect in the verification of an affidavit cannot be a sufficient ground for dismissal of the petitioner’s petition summarily and such an affidavit can be permitted to be filed later.” Furthermore, the Hon’ble Supreme Court also stated that the above constitution bench judgment was also referred in G.M. Siddeshwar v. Prasanna Kumar (2013) 4 SCC 776 to come to a conclusion that non-compliance with the proviso to Section 83(1) of the RP Act was not fatal to the maintainability of an election petition and the defect could be remedied, i.e., even in the absence of compliance, the petition would still be called an election petition. Additionally, the Hon’ble Supreme Court observed that “If we look at the election petition, the prayer clause is followed by verification. There is also a verifying affidavit in support of the election petition. Thus, factually it would not be appropriate to say that there is no affidavit in support of the petition, albeit not in Form 25. This was a curable defect and the learned Judge trying the election petition ought to have granted an opportunity to the appellant to file an affidavit in support of the petition in Form 25 in addition to the already existing affidavit filed with the election petition.” Finally, Hon’ble Supreme Court set aside the impugned order of the learned single Judge dated 17.1.2020 and the application filed by respondent no.1 under Order 7 Rule 11, S. 151 of the said Code and S. 86(1) of the RP Act would stand dismissed with liberty to the appellant to file an appropriate affidavit in Form 25 within fifteen (15) days from the date of the order. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur The Hon’ble Supreme Court referred to the case of Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore AIR 1964 SC 1545 : (1964) 3 SCR 573 wherein it was held that “the defect in the verification of an affidavit cannot be a sufficient ground for dismissal of the petitioner’s petition summarily and such an affidavit can be permitted to be filed later.” Furthermore, the Hon’ble Supreme Court also stated that the above constitution bench judgment was also referred in G.M. Siddeshwar v. Prasanna Kumar (2013) 4 SCC 776 to come to a conclusion that non-compliance with the proviso to Section 83(1) of the RP Act was not fatal to the maintainability of an election petition and the defect could be remedied, i.e., even in the absence of compliance, the petition would still be called an election petition. Additionally, the Hon’ble Supreme Court observed that “If we look at the election petition, the prayer clause is followed by verification. There is also a verifying affidavit in support of the election petition. Thus, factually it would not be appropriate to say that there is no affidavit in support of the petition, albeit not in Form 25. This was a curable defect and the learned Judge trying the election petition ought to have granted an opportunity to the appellant to file an affidavit in support of the petition in Form 25 in addition to the already existing affidavit filed with the election petition.” Finally, Hon’ble Supreme Court set aside the impugned order of the learned single Judge dated 17.1.2020 and the application filed by respondent no.1 under Order 7 Rule 11, S. 151 of the said Code and S. 86(1) of the RP Act would stand dismissed with liberty to the appellant to file an appropriate affidavit in Form 25 within fifteen (15) days from the date of the order. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur Additionally, the Hon’ble Supreme Court observed that “If we look at the election petition, the prayer clause is followed by verification. There is also a verifying affidavit in support of the election petition. Thus, factually it would not be appropriate to say that there is no affidavit in support of the petition, albeit not in Form 25. This was a curable defect and the learned Judge trying the election petition ought to have granted an opportunity to the appellant to file an affidavit in support of the petition in Form 25 in addition to the already existing affidavit filed with the election petition.” Finally, Hon’ble Supreme Court set aside the impugned order of the learned single Judge dated 17.1.2020 and the application filed by respondent no.1 under Order 7 Rule 11, S. 151 of the said Code and S. 86(1) of the RP Act would stand dismissed with liberty to the appellant to file an appropriate affidavit in Form 25 within fifteen (15) days from the date of the order. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur Finally, Hon’ble Supreme Court set aside the impugned order of the learned single Judge dated 17.1.2020 and the application filed by respondent no.1 under Order 7 Rule 11, S. 151 of the said Code and S. 86(1) of the RP Act would stand dismissed with liberty to the appellant to file an appropriate affidavit in Form 25 within fifteen (15) days from the date of the order.

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1774 OF 2020 … Appellant PRAJWAL REVANNA @ PRAJWAL R & ORS …Respondents JUDGMENT SANJAY KISHAN KAUL J The moot point for consideration in the present appeal is whether an election petition can be thrown out at the threshold on a plea of the respondent elected candidate that the petition is not supported by an affidavit in Form 25 as prescribed under Rule 94A of Conduct of Election Rules 1961 even though the petition is based on allegations of The appellant was a candidate from 16 Hassan in the 2019 elections and was stated to have been sponsored by the Bharatiya Janata Party. Respondent No.1 was sponsored by Janatha Dal Secular Party and was also a candidate from the Constituency. Respondent Nos. 2 to 6 were sponsored by local regional parties but as transpired from the elections were not serious contestants in real terms. The Election Commission of India issued a notification on 12.01.2019 appointing a Returning Officer to the Constituency where elections were held on 18.04.2019. The appellant secured 5 35 282 votes while respondent no.1 secured 6 76 606 votes. The other respondents secured only marginal votes The appellant preferred an election petition under Section 81 of the Representation of People Act 1951on 26.06.2019 challenging the election of respondent no.1. The appellant sought a declaration that respondent no.1’s election was liable to be declared void on account of respondent no.1 having filed a false affidavit and consequently the appellant should be declared as duly elected on account of his having secured the second highest votes. This petition was resisted by respondent no.1 at the threshold who filed an application under Order VII Rule 11 read with Section 151 of the Code of Civil Procedure 1908and Section 86(1) of the RP Act seeking dismissal of the election petition on account of non compliance of Section 81(3) and the proviso to Section 83(1) of the RP Act In order to appreciate the rival submissions of the learned counsel for the parties it would be appropriate to extract the relevant Sections of the RP Act. Chapter II under Part VI of the RP Act deals with the Presentation of Election Petitions to the High Court. The presentation of petitions has to be as per Section 81 of the RP Act. The contents of an election petition are as set out in Section 83. The relevant provisions read as under “81. Presentation of petitions.— 3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.]” “[83. Contents of petition.—(1) An election petition— a) shall contain a concise statement of the material facts on which the petitioner relies shall set forth full particulars of any corrupt practice that the petitioner alleges including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice and c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure 1908 for the verification of pleadings Provided that where the petitioner alleges any corrupt practice the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the 2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.]” Chapter III under Part VI of the RP Act deals with trial of election petitions. The relevant portion of Section 86 is extracted as under “[86. Trial of election petitions.—(1) The High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117.” Submissions of Respondent No.1 before the High Court In the conspectus of the aforesaid provisions we first set out the pleas of respondent no.1 which it raised in its application before the High Court and on the basis of which the election petition was sought to be dismissed at the threshold. The grievance in a nutshell is set out below a) non compliance of Section 81(3) of the RP Act on the ground that the election petition was not attested by the appellant under his own signature as a true copy. Respondent no.1 sought to rely on the mandatory nature of such compliance as enunciated in Sharif ud din v Abdul Gani Lone1 and the consequence of non compliance was rejection of the election petition under Section 86 of the RP Act. The object of this rule is to ensure that the petitioner takes full responsibility of its contents and then the respondent in turn receives a true and accurate copy of the b) Respondent no.1 alleged that the appellant had made allegations against him in the election petition which would constitute an allegation of “corrupt practice”. The proviso to Section 83(1) of the RP Act mandates that all allegations of corrupt practice must be accompanied by an affidavit in the prescribed form in support of the allegations. The form of affidavit is as set out in Form 25 as per the mandate of Section 94A of the Conduct of Election Rules 1962 hereinafter referred to as the ‘Election Rules’). The mandatory requirement of the filing of such an affidavit has formed part of the observations in B.R. Patil v. Rajeev Chandrashekhar & Ors.2 of the Karnataka High Court and Purushottam v. Returning Officer Amravati Ors.3 of the Bombay High Court Submissions of the Appellant before the High Court On the other hand the appellant sought to contest this application filed by respondent no.1. It was urged that the appellant had in any case substantially complied with Section 81(3) by ascribing his signature and duly verifying every page of the election petition including on the copies furnished to respondent No.1. Further the index and synopsis of the petition were not required to be attested as they were not part of the election petition by their very description. In any case this was stated to be substantial compliance in terms of Section 81(3) of the RP Act which required an election petition to be admitted in light of the observations of the Supreme Court in Ch. Subbarao v. Member Election Tribunal Hyderabad & Ors.4 On the second plea advanced by respondent No.1 the appellant contended that the question of filing Form 25 would arise only if there are any allegations of corrupt practice as defined by Section 123 of the RP Act. The appellant pleaded that the election petition actually fell within the purview of Section 33A of the RP Act as inserted by Act 702 which required certain information to be furnished by a candidate Section 33A of the RP Act reads as under “33A. Right to information.— 1) A candidate shall apart from any information which he is required to furnish under this Act or the rules made thereunder in his nomination paper delivered under sub sectionof section 33 also furnish the information as to whether— i) he is accused of any offence punishable with imprisonment for two years or more in a pending case in which a charge has been framed by the court of competent jurisdiction ii) he has been convicted of an offenceor sub sectionor covered in sub sectionof section 8] and sentenced to imprisonment for one year or more 2) The candidate or his proposer as the case may be shall at the time of delivering to the returning officer the nomination paper under sub sectionof section 33 also deliver to him an affidavit sworn by the candidate in a prescribed form verifying the information specified in sub sectionThe returning officer shall as soon as may be after the furnishing of information to him under sub section display the aforesaid information by affixing a copy of the affidavit delivered under sub sectionat a conspicuous place at his office for the information of the electors relating to a constituency for which the nomination paper The allegation in the election petition dealt with suppression of information. The appellant did not allege Section 123 of the RP Act against Respondent No.1 and the specific averment to corrupt practice made in para 32 was simply alluding to the observations of this Court in Krishnamoorthy v. Sivakumar & Ors.5 opining that non disclosure of assets and income amounts to corrupt practice The decision of the High Court The learned single Judge of the High Court allowed the application filed by respondent no.1 by the impugned judgment dated 17.01.2020 The learned Judge analysed the circumstances under which the election petition could be dismissed at the threshold by referring to the observations of this Court in H.D. Revanna v. G. Puttaswamy Gowda Ors.6 and T. Phungzathang v. Hangkhanlian & Ors.7 setting out only two circumstances in which the petition could be dismissed in limine:non compliance of Section 83 only when the matter falls within the scope of Order VI Rule 16 or Order VII Rule 11 of the said Code In the conspectus of the pleas advanced it was opined that a substantial compliance of Section 81(3) of the RP Act saves an election petition from dismissal. We may add here that the only issue here was about the index and the synopsis not being signed by the appellant. In the given facts the appellant had attested the election petition with his endorsement that it was a correct copy of the election petition and hence had substantially complied with the requirements. The more crucial issue examined by the High Court which resulted in an adverse order against the appellant was qua the requirement of submission of Form 25. The submission of respondent no.1 that filing of Form 25 would arise only if the allegations made in the election petition pertained to Section 123 of the RP Act was repelled by the learned Single Judge. The learned Single Judge held that the use of the phrase “any corrupt practice” in the proviso to Section 83 of the RP Act covers allegations of every manner of corrupt practice envisaged under the RP Act. In any case the High Court was of the view that the appellant had alleged undue influence and improper acceptance of respondent No.1’s nomination under Sections 123 and 100 of the RP Act respectively Accordingly the appellant’s submission that the allegations against respondent No.1 were confined only to Section 33A of the RP Act was liable to be rejected The High Court thereafter proceeded to examine the consequences of non submission of Form 25 and opined that in view of the dictum laid down in Ponnala Lakshmaiah v. Kommuri Pratap Reddy & Ors. 8 the absence of an affidavit or an affidavit in a form other than the one stipulated would not itself cause prejudice to the election petitioner so long as the deficiency was cured. However in the case at hand the appellant had not filed any affidavit. Thus the Ponnala Lakshmaiah9 case would not come to the aid of the appellant. However a closer case on facts would be of G.M. Siddeshwar v. Prasanna Kumar10 where a Three Judge Bench enumerated triple principles:total non compliance of Section 83 of the RP Act means that a petition cannot be described as an election petition and must be dismissed at the threshold if defects are curable then the petition cannot be dismissed summarily as Section 86 of the RP Act sanctioned dismissal only for non compliance with Sections 81 82 & 117 of the RP Act anda determination of the gravity of defects would have to be made in the facts of each case to determine whether there had been non compliance with an integral part of Section 83 or not. The High Court opined that Form 25 was an integral part of the election petition and its complete absence would mean that there was total non compliance of Section 83 of the RP Act The election petition was thus held as not maintainable In the conspectus of the aforesaid finding the scope of arguments before this Court became narrower Appellant’s submissions before the Supreme Court Learned counsel for the appellant sought to contend that the grounds in the election petition were specific to Section 100(1)(d)(i) and iv) of the RP Act. Section 100(1) of the RP Act reads as under “100. Grounds for declaring election to be void. 1) Subject to the provisions of sub sectionifis of opinion a) that on the date of his election a returned candidate was not qualified or was disqualified to be chosen to fill the seat under the Constitution or this Actor b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent or c) that any nomination has been improperly rejected or d) that the result of the election in so far as it concerns a returned candidate has been materially affected i) by the improper acceptance or any nomination or by any corrupt practice committed in the interests of the returned candidate iii) by the improper reception refusal or rejection of any vote or the reception of any vote which is void or iv) by any non compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act shall declare the election of the returned candidate to be void.]” It was thus contended that the allegations deal with the improper acceptance of the nomination and non compliance with statutory provisions. The allegations of corrupt practice are contained in Section 123 and Section 100(1)(d)(ii) of the RP Act and the election petition does not relate to either of these provisions. Thus the submission of Form 25 was not necessary It was further sought to be urged by referring to Section 83 of the RP Act that the signing and verification of pleadings in terms of Section 83(1)(c) of the RP Act if not complied with cannot be fatal and the circumstances in which a petition could be thrown out at the threshold in terms of Section 86(1) of the RP Act were only non compliance of Sections 81 82 and 117 of the RP Act. This issue was urged not to be res integra in view of the judgment of this Court in Ponnala Lakshmaiah11 case wherein this Court opined against the rejection of an election petition at the threshold stage on hyper technical grounds. The observations in this case by the Supreme Court have received the imprimatur of a larger Bench of three Judges in G.M. Siddeshwar12 case where the relevant portion from Ponnala Lakshmaiah13 case has been extracted as under “43. More recently the issue was again considered in Ponnala Lakshmaiah and relying upon Sardar Harcharan Singh Brar v Sukh Darshan Singh 11 SCC 196 it was held: of the Act is fatal to the election petition is no longer res integra in the light of a three Judge Bench decision of this Court in Sardar Harcharan Singh Brar v. Sukh Darshan Singh. In that case a plea based on a defective affidavit was raised before the High Court resulting in the dismissal of the election petition. In appeal against the said order this Court held that non compliance with the proviso to Section 83 of the Act did not attract an order of dismissal of an election petition in terms of Section 86 thereof. Section 86 of the Act does not provide for dismissal of an election petition on the ground that the same does not comply with the provisions of Section 83 of the Act. It sanctions dismissal of an election petition for non compliance with Sections 81 82 and 117 of the Act only. Such being the position the defect if any in the verification of the affidavit filed in support of the petition was not fatal no matter the proviso to Section 83(1 was couched in a mandatory form.” 44. The issue having been considered several times by this Court must now be allowed to rest at that.” Lastly it was contended that in any case non filing of an affidavit or non filing of proper verification is a technical defect which is curable and at best the High Court ought to have given an opportunity to cure the defect by allowing the appellant to file a proper affidavit. Dismissal of the election petition under Order VII Rule 11 of the said Code at the threshold was not warranted Respondent’s submissions before the Supreme Court Learned counsel for respondent no.1 however contended that there could not be any waiver of the non compliance of a mandatory affidavit in the prescribed Form 25 as provided under Section 83(1) of the RP Act especially when grave charges of corrupt practices have been made. The plea of the appellant in the election petition was based on the submission of a false affidavit vide Form 26 by respondent no. 1 at the stage of filing nomination papers amounting to non disclosure of assets which in turn constituted corrupt practice under Section 123 of the RP Act. No such affidavit had been filed and this defect could not be cured at a later stage as observed in Ravinder Singh v. Janmeja Singh In substance the submission of learned counsel for respondent No.1 was that the absence of an affidavit stands on a different footing from submission of a defective affidavit as recognised in the G.M Siddeshwar15 case which opined that total non compliance of Section 83 of the RP Act cannot be cured. It was urged that permitting an affidavit to be filed at a later stage would provide an opportunity for embellishment of the case and defeat the statutory requirement of an affidavit. The nature of allegations made by the appellant against the respondent it was urged were in the nature of undisclosed profits from commercial operations through a partnership and receipt of money from a sitting Rajya Sabha member. The allegations were made without disclosing any sources of information by way of an affidavit in Form 25 19. We must begin at the inception by stating that intrinsically election law is technical in nature. In the present matter an election conducted under an independent body like the Election Commission is sought to be assailed where the mandate of the public has gone in a particular way. The allegations must strictly fall within the parameters of the manner in which such a mandate can be overturned. The primary plea taken by the appellant is largely that success in the elections was obtained by concealment of material which would have been germane in determining the opinion of the electorate. In effect were such material to be available with the electorate they would have exercised another option on the basis of it. However while the requirements to be met in the election petition may be technical in nature they are not hyper technical as observed in the Ponnala Lakshmaiah16 case. We have considered the aforesaid aspect by quoting the observations made therein which have received the imprimatur of a larger Bench In the conspectus of the aforesaid if we examine the facts of the present case the hyper technical view sought to be taken of non signing and verification of the index and the synopsis has been rightly rejected by the High Court Thus the real and core question before us is that in view of the allegations of the alleged non disclosure of assets in Form 26 by respondent No.1 being cited as “corrupt practice” would it be mandatory for the election petitioner to file an affidavit in Form 25 and what would be the consequences of not filing such an affidavit 22. We may take note of the Constitution Bench judgment of this Court in Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore17 which opined that the defect in verification of an affidavit cannot be a sufficient ground for dismissal of the petitioner’s petition summarily and such an affidavit can be permitted to be filed later. This Constitution Bench judgment was also referred to in G.M. Siddeshwar18 case to come to a conclusion that non compliance with proviso to Section 83(1) of the RP Act was not fatal to the maintainability of an election petition and the defect could be remedied i.e. even in the absence of compliance the petition would still be called an election petition. We cannot say that the High Court fell into an error while considering the election petition as a whole to come to the conclusion that the allegations of the appellant were not confined only to Section 33A of the RP Act but were larger in ambit as undue influence and improper acceptance of nomination of respondent No.1 were also pleaded as violation of the mandate under Sections 123 and 100 of the RP Act 23. However we are not persuaded to agree with the conclusion arrived at by the High Court that the non submission of Form 25 would lead to the dismissal of the election petition. We say so because in our view the observations made in Ponnala Lakshmaiah19 case which have received the imprimatur of the three Judges Bench in G.M. Siddeshwar20 case appear not to have been appreciated in the correct perspective. In fact the G.M. Siddeshwar21 case has been cited by the learned Judge to dismiss the petition. If we look at the election petition the prayer clause is followed by a verification. There is also a verifying affidavit in support of the election petition. Thus factually it would not be appropriate to say that there is no affidavit in support of the petition albeit not in Form 25 This was a curable defect and the learned Judge trying the election petition ought to have granted an opportunity to the appellant to file an affidavit in support of the petition in Form 25 in addition to the already existing affidavit filed with the election petition. In fact a consideration of both the judgments of the Supreme Court referred to by the learned Judge i.e. Ponnala Lakshmaiah22 as well as G.M. Siddeshwar23 ought to have resulted in a conclusion that the correct ratio in view of these facts was to permit the appellant to cure this defect by filing an affidavit in the prescribed form The arguments of learned counsel for respondent No.1 were predicated on the distinction between the absence of an affidavit and a defective affidavit. This pre supposes that for an opportunity of cure to be granted there must be the submission of a Form 25 affidavit which may be defective. This would be very narrow reading of the provisions Once there is an affidavit albeit not in Form 25 the appropriate course would be to permit an affidavit to be filed in Form 25. We have to appreciate that the petition is at a threshold stage. It is not as if the appellant has failed to cure the defect even on being pointed out so. This is not a case where the filing of an affidavit now in Form 25 would grant an opportunity for embellishment as is sought to be urged on behalf of The appellant states the case clearly and in no uncertain terms with supporting material in the election petition. Whether the violation is made out by respondent no.1 or not would be a matter of trial but certainly not a matter to be shut out at the threshold The result of the aforesaid is that the impugned order of the learned single Judge dated 17.1.2020 is set aside and the application filed by respondent no.1 under Order 7 Rule 11 S. 151 of the said Code and S 86(1) of the RP Act would stand dismissed with liberty to the appellant to file an appropriate affidavit in Form 25 within fifteendays from today. The further proceedings in the election petition are required to be taken up urgently as almost two and a half years have gone on the preliminary skirmishes rather than the meat of the matter which we are sure the learned single Judge of the High Court would so do The appeal is accordingly allowed leaving the parties to bear their December 13 2021 Sanjay Kishan Kaul

The marriage between two minors shall be considered as valid unless it is declared void until or before the age of Eighteen : High Court of Punjab and Haryana

The marriage between two minors shall be considered as valid unless it is declared void until or before the age of Eighteen : High Court of Punjab and Haryana According to Section 13-B of the Hindu Marriage Act, 1955,“Divorce by mutual consent”. An order was passed by the family court dismissing a petition for divorce by mutual consent on the 22nd of July 2020 stating that it was not a valid marriage in the first place. As the girl had not completed 18 years with regard to the mandate under Section 5(iii) of the Hindu Marriage Act, 1955, “Conditions for a Hindu marriage the bridegroom has completed the age of 21 years and the bride, the age of 18 years at the time of the marriage”. Therefore, this petition has been filed. This landmark judgement  was given by the disvison bench of  HONORABLE MR JUSTICE RITU BAHRI AND HONORABLE MR JUSTICE ARUN MONGA  in the case of YOGESH KUMAR VERSUS PRIYA [FAO-855-2021]   The brief facts of the case are that there was a marriage between the two parties on the 27th of February 2009 was conducted as per Hindu rituals and rites at the time of marriage the husband was 23 years old and the wife was 17years old according to their date of birth presented in the Aadhar card. After marriage, the parties resided together till the 31st of August 2017 and they also had a son out of wedlock. The counsel for both the parties held that the Family court who dismissed the petition relied upon the judgment, passed by the Madras High Court in Prema Kumari Vs. M. Palani, [2013 (6) RCR (Civil) 2953]. The counsel held that this judgment cannot be applicable as the age of the girl was only 15 years and could not invoke the provisions of Section 13(2)(iv) of the Hindu Marriage Act but she could nullify the marriage as a void before attaining 18 years of age. whereas the age of the petitioner in the present case was 17 years and lived together with her major husband when she attained 18 years back in 2010 therefore the family Court relied upon a wrong judgment. Another case relied upon is a full bench of Madras High Court in T.Sivakumar Vs. The Inspector of Police, Thiruvallur, [2012 AIR (Madras) 62] with regard to the provisions of section 5 of Hindu Marriage Act, 1955 and Section 3(3) of Prohibition of Child Marriage Act, 2006 stating that “if no petition is filed for an annulment of the marriage, it will become a full-fledged valid marriage”. The Honourable Court concluded that “The Family Court has wrongly dismissed the petition filed under Section 13-B of Hindu Marriage Act, 1955 as per Section 13(2)(iv) of the Hindu Marriage Act, 1955, referring to the wrong judgement. Therefore, by referring to the Madras High Court and Delhi High Court, if there is no petition filed for an annulment of the marriage, it will become a valid marriage. Therefore, this appeal is d and order dated 12.01.2021 is set aside and the decree of divorce under Section 13-B of the Hindu Marriage Act, 1955 is granted to the parties.”

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

Objection as to mode of proof should be taken before a document is admitted and marked as exhibit: Supreme Court of India

Objection as to the mode of proof must be taken when the document is tendered and before it is marked as an exhibit. It cannot be taken in appeal. This was held by Hon’ble Justice Sanjay Kishan Kaul and Hon’ble Justice Hrishikesh Roy in the case of Lachhmi Narain Singh (D) Through Lrs and Ors. Vs. Sarjug Singh (Dead) Through LRs and Ors. [CIVIL APPEAL NO. 5823 OF 2011] on the 17th of August before the Hon’ble Supreme Court of India at New Delhi. The brief facts of the case are, Rajendra Singh (since deceased) had executed a Will on 14.09.1960 in favour of the applicant Sarjug Singh. The executant died issueless on 21.08.1963 leaving behind his sister Duler Kuer, wife of late Thakur Prasad Singh and nephew Yugal Kishore Singh and also the probate applicant Sarjug Singh. The case of the applicant is that the testator’s wife died long ago and therefore Rajendra Singh who was issueless bequeathed his property in Bihar by executing the Will favouring the respondent Sarjug Singh (since deceased). In the probate proceeding initiated by Sarjug Singh objection was filed by Shyam Sunder Kuer alias Raj Bansi Kuer (claiming to be the second wife and widow of the testator). Khedaran Kuer also opposed the applicant and she claimed to be the widow of Jamadar Singh who was the son of late Jag Jitan Singh (brother of the testator Rajendra Singh). According to the objectors, the Will favoring Sarjug Singh was revoked and cancelled by a registered deed dated 02.02.1963. It is relevant to state that the validity of the Will in favour of the applicant Sarjug Singh was never seriously challenged but the objectors pleaded that the concerned Will was cancelled by a registered deed on 02.02.1963 by the testator himself. The applicant however claims that the testator was in very poor health, paralytic and was not in a position to attend the Sub­Registrar’s office on 02.02.1963 to execute the registered cancellation deed The applicant also challenged the genuineness of the testator’s thumb impression on the cancellation deed of the Will. the learned trial Court, under its judgment dated 14.12.1973 concluded that the Will has been revoked and the applicant Sarjug Singh is disentitled to get the Will probated. Aggrieved by the rejection of the Probate case by the Trial Court, the applicant Sarjug Singh filed the First Appeal No. 127 of 1974 before the High Court. The high court granted the probate and reversed the finding of the trial court. Aggrieved by this, the present petition has been filed. The learned judges heard the submissions of both the parties and observed that In such scenario, where no protest was registered by the probate applicant against production of certified copy of the Cancellation Deed, he cannot later be allowed to take up the plea of non-­ production of original cancellation deed in course of the appellate proceeding. The court relied on the judgement in R.V.E Venkatachala Gounder v. Arulmigu Viswesaraswami Vs. V. P Temple (2003) 8 SCC 752 wherein it was held that, “In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence”.

applicant was allowed in his favour by concluding that the Will favouring Sarjug Singh was not cancelled. Thus the appellate Court reversed the Trial Court’s decision which held that the objectors disbelieved the registered deed of cancellation dated 02.02.1963whereby the Exbt 2 Will was revoked by the Exbt 2) in favour of the applicant Sarjug Singh. The executant and also the probate applicant Sarjug Singh. The case of the applicant is that the testator’s wife died long ago and therefore Rajendra Singh who was issueless bequeathed his property in village Pojhi Bujurg and Pojhi Kapoor District­Saran Bihar by executing the Will favouring the respondent Sarjug Singh 3. In the probate proceeding initiated by Sarjug Singh i.e. Probate testator). Khedaran Kuer also opposed the applicant and she to the objectors the Will favoring Sarjug Singh was revoked and also the objector’s contention that Raj Bansi Kuer was in along with Khedaran Kuer sold several plots of land to the applicant Sarjug Singh was never seriously challenged but the objectors pleaded that the concerned Will was cancelled by a office on 02.02.1963 to execute the registered cancellation deed Ext. ‘C’). The applicant also challenged the genuineness of the 5. In the Probate case filed by Sarjug Singh the learned First Additional District Judge Chapra firstly concluded that the Will Ext. 2) is a genuine document. However by referring to the Ext. C) a few months before Rajendra Singh died on 21.08.1963 at Patna hospital. The Court also referred the death certificate Ext. F) to conclude that the same does not indicate that the effect that Rajendra Singh was paralytic and was incapable of then considered the sale deeds produced by the objector Shyam Sunder Kuer and observed that she was dealing with Rajendra 6. The learned trial Court while examining the genuineness of the cancellation deed dated 02.02.1963 referred to the evidence of the handwriting expert Hassan Raza the attesting witness of cancellation deed Jagarnath Prasad with the thumb impression registered at Chapra Registration Office and recorded the marks is of the opinion that all these thumb his cross­examination to discard his evidence and After referring to the testimony of the attesting witness and the witness O.W. 4 and Shashinath Mishra the scribe O.W. 5 to the effect that some body also had impersonated Rajendra Singh before the Sub­ 7. On the above analysis the learned trial Court under its judgment dated 14.12.1973 concluded that the Will has been revoked and 8. Aggrieved by the rejection of the Probate case by the Trial Court before the High Court. During the pendency of the appeal on 21.03.2002 Sarjug Singh died but no application was filed for 9. The High Court addressed the core issue on whether the testator the original of the cancellation deed and non­presentation of the cancelled by the testator himself. The High Court accordingly In course of the proceedings before this Court suggestion was earlier made to the parties for amicable settlement of the rival the High Court and non­substitution of legal heirs of other contesting parties the same need not detain us at this point in view of the proceeding on 13.04.2021 in this Court where the was decided against a dead person and the legal heirs of the of the amended memo of parties which were filed we have 12. We have heard Ms. Sreoshi Chatterjee the learned counsel appearing for the appellants objectors. The legal heirs of Sarjug Singh are represented by the learned counsel 13. The merit of the claim of either party in the present matter will hinge around the core issue as to whether Rajendra Singh had 14. In allowing the appeal of the probate applicant the High Court referred to the health condition of Rajendra Singh who suffered the Sub­Registrar’s Office. Such conclusion was reached even of Cancellation) were both marked without objection when the the evidence of OW­3 OW­4 and OW­5 who led evidence on genuineness of the cancellation deed. Instead erroneous testator to visit the office of the Sub­Registrar to register the 16. That apart the probate applicant never opposed the acceptance Therefore in the face of the Expert’s Reportwhen the Deed have been accepted as genuine particularly in view of the testimony of OW­3 OW­4 and OW­5 who stood firm on execution 17. On the issue of testator’s thumb impression on the cancellation in his lifetime contained his thumb impression and not his signature. Therefore adverse presumption on genuineness of the cancellation deed cannot be drawn merely because the testator chose to append his thumb impression. That apart the Ext. B opinion are of the same person i.e. of Rajendra Singh. Since the said Ext. B was marked in Court without objection from the applicant the genuineness of the same cannot be allowed to be questioned before the appellate Court. A contrary inference by referring to the health condition of the testator when the 18. The key characteristic of thumb impression is that every person nearly impossible. Therefore adverse conclusion should not be deed cannot be doubted only due to the fact that same was not signed and Rajendra as a literate person affixed his thumb 19. Next we need to consider the implication of the conduct of the objectors who did not produce the original deed of cancellation to be in possession of Yugal Kishore Singh). On this the probate applicant neither objected to production of certified copy nor Kumar learned counsel however contended that even the Trial Deed. As can be seen the probate objectors never objected to keeping ill ­health and it was not possible for him to have gone concerned deed was introduced and marked without protest the genuineness of the cancellation deed should not have drawn an adverse inference against the objectors by referring to the health 20. In such scenario where no protest was registered by the probate applicant against production of certified copy of the Cancellation Deed he cannot later be allowed to take up the plea of non­ proceeding. As already noted the main contention of probate applicants was that the mode of proof of Cancellation deed was inadequate. However such was not the stand of the probate applicants before the Trial Court. The objection as to the admissibility of a registered document must be raised at the been taken in appeal for the first time. On this we may draw 1 AIR 1915 PC 111 in­Council and the case has been argued on their argument that a registered copy of the Will of 1898 was admitted in evidence without sufficient at the time the District Judge who tried the case in deficiency was supplied. Their Lordships think that there is no substance in the present contention.” 21. A similar view was taken by George Rankin J. in the decision of Objection as to the mode of proof must be taken when the document is tendered and before it is marked as an exhibit. It taken before a document is admitted and marked as exhibit. In present case probate applicant never raised any objection in 22. In support of our above conclusion we may usefully refer to the 2 AIR 1943 PC 83 & V.P Temple3 where Justice Ashok Bhan while dealing with the aspect of disallowing objection as to mode of proof at appellant “20. .…. In the latter case the objection should be taken when the evidence is tendered and once the an exhibit the objection that it should not have been crucial test is whether an objection if taken at the appropriate point of time would have enabled the party not prejudice the party tendering the evidence for two and there and secondly in the event of finding of the court indulgence of the court for permitting a regular mode or parties. Out of the two types of objections referred to hereinabove in the latter case failure to raise a prompt 38 SCC 752 which is sought to be proved being admissible in 23. This Court in the opinion written by Justice S. H. Kapadia in the mode of proof falls within procedural law. Therefore such objections could be waived. Moreover objection is to be taken before the document is marked as an exhibit and admitted in 24. In view of the foregoing discussion it is clear that plea regarding mode of proof cannot be permitted to be taken at the appellate appropriate stage. This is to avoid prejudice to the party who copy) in a jeopardy & would seriously prejudice interests of that 47 SCC 107 party. It will also be inconsistent with the rule of fair play as propounded by Justice Ashok Bhan in the case of R.V.E High Court had erred by ignoring the material evidence in the applicant is entitled to grant of probate of the Will (Ext. 2 Given the fact that Probate applicant never raised any objection regarding the mode of proof before the trial court there was no but in the present case the certified copy of the registered before the trial Court and therefore High Court’s reliance on 5 AIR 1946 PC 24 26. On the basis of the above examination it is our considered opinion that the Trial Court was right in holding that Rajendra was trusted. Considering the omission of the probate applicants to Page 1

Application filed under the right to information act dismissed as it was demanding non-available information – The Securities and Exchange Board of India

Application filed under the right to information act dismissed as it was demanding non-available information – The Securities and Exchange Board of India An application filed under the Right to Information Act, 2005 was transferred under section Section 6(3) of the RTI Act and was heard by ANAND BAIWAR APPELLATE AUTHORITY in the case of Geeta Khattar versus CPIO, SEBI, Mumbai in appeal no. 4583 of 2021 The appellant demanded the information in response to query no.12 on the ground that the information provided was incomplete, misleading, or false. Query no.12 included the  GOI online portal details. the respondent in response to it stated that the name and designation of the present Members of the SEBI Board are available on the SEBI website. The respondent also provided the link for accessing the same. But the information sought is not available with SEBI. After considering the response the officer has no reason to disbelieve the information given by the respondent and relied on the case of Sh. Pattipati Rama Murthy vs. CPIO, SEBI and therefore it Is believed 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. The officer finds that the respondent has guided the appellant to access the details of the members of the SEBI Board. and the query has been adequately addressed no further intervention is warranted at this stage and there is no need to interfere with the decision of the respondent. The Appeal is accordingly dismissed

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

It is the Court’s and those involved’s a responsibility to maintain marital status for as long as and wherever practicable.: Tripura High Court

It is the obligation of the court and all concerned that the marriage status should, as far as possible, as long as possible and whenever possible, be maintained, but when the marriage is dead, in that event, nothing is gained by trying to keep the parties tied forever to a marriage which has ceased to exist. The judgement was passed by the High Court of Tripura in the case of Sri Nirmal Paul v. Smt. Namita Paul [RFA 18/2015] by Division Bench consisting of Hon’ble Justice Mr Akil Kureshi & Justice S.G. Chattopadhyay. The facts of the cases are that a month after marriage, his wife started misbehaving with him. At that time the appellant lived in a common mess with his old parents, three brothers and their families which was not liked by his respondent. She demanded a separate mess and told her husband that it was not possible on her part to prepare food for every member of the extended. Thereafter, the appellant filed the said petition under section 13(1)(ib) of the Hindu Marriage Act, 1955 in the Family Court at Agartala for divorce on the ground of desertion. Learned counsel for the appellant has argued that the parties are living separately for more than 15 years. During this period the wife has never met her appellant at her place which indicates that their relationship has broken down irretrievably and there is no chance of restoration of such relationship. It is contended by the learned counsel of the appellant that in a similar situation divorce was granted in favour of the husband by this Court in the case of Bidyut Kumar Saha Vs. Tapa Saha. Learned counsel, therefore, urges the court to put the marriage to an end by granting divorce in favour of the appellant. Learned counsel for the respondent on the other hand submits that she is not agreeable to divorce because she is always prepared to live with her appellant. According to learned counsel, it is only the appellant who is always keeping himself away from her company. Further submission of the learned counsel is that even after she was ousted from his house, she returned to her matrimonial home to live with her husband but she was not accepted by him. According to learned counsel, the appellant has failed to establish the ground of desertion against the respondent and therefore, a decree of divorce cannot be granted to him. Relying on the supreme court judgment in the case of Naveen Kohli Vs. Neelu Kohli, wherein it was held that “Undoubtedly, it is the obligation of the court and all concerned that the marriage status should, as far as possible, as long as possible and whenever possible, be maintained, but when the marriage is dead, in that event, nothing is gained by trying to keep the parties tied forever to a marriage which has ceased to exist. In the instant case, there has been total disappearance of emotional substratum in the marriage. The course which has been adopted by the High Court would encourage continuous bickering, perpetual bitterness and may lead to immorality.”

Page HIGH COURT OF TRIPURA W.P(C) No.273 2020 Smt. Soma Debbarma wife of Sri Bikash Kanti Saha resident of village Amarpur Ramthakur Ashram PO Amarpur PS Birganj Sub Division Amarpur Pin 799101. … Petitioner(s). The State of Tripura Represented by the Commissioner and Secretary to the Finance Department Government of Tripura having its office at New Secretariat Complex Gurkhabasti Agartala PO Kunjaban PS New Capital Complex Sub Division Sadar District West Tripura The Commissioner and Secretary to the Finance Department Government of Tripura having his office at New Secretariat Complex Gurkhabasti Agartala PO Kunjaban PS New Capital Complex Sub Division Sadar District West Tripura. The Commissioner and Secretary to the Revenue Department Government of Tripura having his office at New Secretariat Complex Gurkhabasti Agartala PO Kunjaban PS New Capital Complex Sub Division Sadar District West Tripura. The Commissioner of Excise Government of Tripura office of the Commissioner of Excise having his office at P.N Complex Gurkhabasti Agartala PO Kunjaban PS New Capital Complex Sub Division Sadar District West Tripura. The Collector of Excise Government of Tripura office of the Collector of Excise Gomati Tripura District Sri Rupan Karmakar son of Late Manindra Karmakar resident of village Amarpur Shantipalli P.O Amarpur P.S Birganj Sub Division Amarpur Pin 799101. Private Respondent. Official Respondent(s). HON’BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON’BLE MR. JUSTICE S. G. CHATTOPADHYAY For Petitioner(s) Mr. Somik Deb Sr. Advocate. For Respondent(s) Mr. D. Bhattacharjee Govt. Advocate. Mr. S. M.Chakraborty Sr. Advocate. Date of hearing and Judgment & Order 23rd June 2021. Whether fit for reporting NO Page JUDGMENT AND ORDER(Oral) Petitioner has challenged the decision of the official respondents of accepting the price bid of the respondent No. 6 for allotment of rights for sale of liquor at Amarpur F. L. Shop. Brief facts are as under: The excise authorities of Government of Tripura issued a notice inviting tenders on 17.01.2020 for retail vending of foreign liquor and country liquor shops under Gomati district. This advertisement was common for 22 different locations where such shops would be granted licenses one of them was Amarpur F.L. Shop within local limits of Amarpur Nagar Panchayat. The minimum price for duration of the license between the year 2020 21 to 2022 23 was Rs.19 02 775 . This notice contained an important condition for the location of the shop that a tenderer may offer. This was in terms of Rule 26 of Tripura Excise Rules 1990 and the condition read as under: “As per provisions of Rule 26 of Tripura Excise Rules 1990meters from the following namely: Recognized Educational Institutions Religious places of worship bathing ghat Hospitals Factories Office(s) of the recognized political parties Provided that no shop for the sale of liquor shall be visible from a national or state highway directly accessible from a national or state highway and situated within a distance of 220 meters in case of areas comprised in local bodies with a population not exceeding twenty thousand people and 500 meters in case of all other areas from the outer edge of the National or State highway or of a service lane along the Provided also that if any Recognized Educational Institutions Religious places of public worship bathing ghat Page Hospitals Factories and Offices of recognized Political Parties come into existence subsequent to the establishment of retail vend of Foreign Liquor or Country Liquor the aforesaid distance restrictions shall not apply.” The petitioner as well as respondent No.6 participated in the tender process. There are in all five tenderers who had qualified. The authorities opened the price bids of all these terderers and found that the offer of the respondent No.6 at Rs.85 88 788 was the highest and that of the petitioner at Rs.53 27 771 was second highest. It appears that after obtaining the report of verification by a specially constituted committee which was tendered on 17.01.2020 the tender was awarded to the respondent No.6. In this report copy of which is not produced by the respondents on record but from the original files made available for our perusal as well as that of the counsel for the petitioner it emerges that the committee had verified that the location of the proposed shop did not breach the requirements of Rule 26 of the Tripura Excise Rules 1990 which was incorporated in the tender condition. The committee certified that the proposed site of the shop was beyond 100 meters from any recognized educational institutions religious places of public worship bathing ghats hospitals factories etc. The petitioner challenges this decision of the authorities on the ground that the location of the shop offered by the respondent No.6 for running the liquor shop breached the said condition in as much as there was a bathing ghat within the distance of 30.48 meters from the shop. In support of this contention the petitioner has relied on a surveyor’s report whom the petitioner hired for this purpose. Page The official respondents had filed his first reply on 29th June 2020 in which the deponent had stated as under: “11. That with regard to paragraphs 2 4 & 2.5 I say that the proposed site location of Amarpur F. L. Shop by the private respondentis situated at a distance of less than 100 meters from a nearby bathing ghat in the eastern side of Amarsagar.” Second affidavit came to be filed on behalf of the official respondents on 19th February 2021 in which the above quoted portion of the previous affidavit was sought to be clarified as under: “11. That with regard to paragraphs 2.4 & 2.5 it is stated by the petitioner that the proposed site location of Amarpur FL shop by the Private Respondentis situated at a distance of less than 100 meters from a nearby bathing ghat in the eastern side of Amarsagar.” With respect to the petitioner’s averment that there was a bathing ghat within some 30 meters from the proposed shop in this later affidavit it was clarified as under: “12. Regarding bathing ghat in the eastern side of Amarsagar opposite of Khudiram pally it is pertinent to mention here that there is a retain structure which is pucca from Amarpur bazaar road leading down to Amarsagar. It has 6(six) feet width entrance with 5(five) feet wide pucca steps and there are two steps of 7(seven) feet width at three places i.e. at the beginning after the entrance in the middle down and at the end. Those pucca steps path from Amarpur bazaar road to Amarsagar opposite side of Khudiram pally are mere stairs not a bathing ghat. The proposed site location of Amarpur FL shop conforms to Rules 26 of Tripura Excise Rule 2014. Therefore the claim of the petitioner is found devoid of merit. Hence the contention of the petitioner made in the said paragraph does not have any locus standi and is liable to be 13. That with regard to paragraphs 2.6 to 2.7 I say that the retain structure which is pucca situated in the opposite side of Khudiram Palli Road and near to proposed site location of Amarpur F. L. shop of Sri Rupan Karmakar as mentioned by the petitioner are mere stairs and not a bathing ghat.” Page The respondent No.6 had filed an affidavit dated 10th July 2020 denying the allegation of the petitioner that any objectionable structure was situated within a distance of thus 100 meters from the proposed shop site. In fact it was stated that the so called bathing ghat is classified as a public road the said spot has never been used as a bathing ghat. Based on such averments learned counsel Sri Somik Deb for the petitioner vehemently contended that the petitioner had established that the proposed shop was situated within less than 100 meters of existing bathing ghats and a mosque. The official respondents committed a serious error in awarding the tender to the respondent No.6. He drew our attention to the admission of the respondents in the first affidavit regarding location of a bathing ghat within less than 100 meters from the shop. He contended that such admission once made cannot be withdrawn. Learned Govt. Advocate Sri D. Bhattacharjee and Mr. S. M. Chakraborty Sr. advocate for the private respondent opposed the petition and contending that the specially constituted committee has examined these factual aspects. The petitioner has produced no reliable evidence to discard these findings. There is no bathing ghat within the distance of less than 100 meters from the shop. Respondent No.6 was the highest bidder and therefore correctly awarded the contract. Though in the sketch of the surveyor of the petitioner refers to three sites namely two bathing ghats and one mosque being situated within less than 100 meters from the proposed shop the sketch itself shows the location of only one ghat and a mosque. The ghat referred to by the surveyor is in the Page northern direction straight above the location of the shop. Further down in the same direction is stated to be a mosque. Thus the sketch does not show a second bathing ghat which in the foot note of the surveyor’s report is referred to. With respect to the so called bathing ghat the official respondents as well as the private respondent have categorically stated that there is no such ghat in existence and that it is never used or recognized as a ghat. We have nothing to disbelieve such clear averments made by the official respondents on oath. With respect to the location of the Mosque the petitioner has not taken up this contention in the petition. The surveyor’s sketch does show the location of a mosque at a distance of about 91 meters from the shop. However in the petition there is no reference to any such shop with or without reference to the sketch. The respondents cannot be expected to reply to a contention that too factual in absence of an averment made by the petitioner on oath in the petition. Coming to the question of the so called admission by the official respondents in the first affidavit dated 29th June 2020 this position has been clarified in the subsequent affidavit dated 19th February 2021. Quite apart from contending that the earlier declaration was through over sight the respondents have elaborately pointed out that there is no bathing ghat in existence nearby the shop and the reference of the petitioner to the bathing ghat location is nothing but a 6ft. by 5ft. steps and is not a bathing ghat. Counsel for the petitioner may be correct in pointing out that the defendant cannot resile from a clear admission made on oath. However an oversight or typographical error or misunderstanding cannot form the basis for a judicial decision if the error is properly explained. The crux of the matter is is there a structure in the nature of a bathing ghat Page within a distance of less than 100 meters from the proposed shop If the answer is as in the present case in the negative the petition must fail. In the result petition is dismissed. Pending application(s) if any also stands disposed of. S. G. CHATTOPADHYAY) J. AKIL KURESHI) CJ.

A person shall not be entitled for payment of salary for the period that he has not worked : High Court of Delhi

Petitioner shall not be entitled for payment of salary for the period that he has not worked i.e. from the date of removal of service till the date of rejoining and same was upheld by High Court of Delhi through the learned bench led by HON’BLE MR. JUSTICE MANMOHAN and HON’BLE MR. JUSTICE NAVIN CHAWLA in the case of EX-CT BAJRANG LAL vs UNION OF INDIA (W.P.(C) 11265/2021) on 24th February, 2022. Facts of the case are that the petitioner was appointed as a Constable GD in CISF after qualifying a competitive examination held by Staff Selection Commission on 3rd April, 2017. He states that the petitioner served the department till the passing of the impugned order. He states that vide Memorandum dated 7th September, 2019, a charge-sheet was issued to the petitioner alleging that he had secured employment by producing a false and fabricated OBC certificate. He states that the petitioner had applied for the Caste certificate dated 18th May, 2016 with the help of some private person sitting outside the Court and when the petitioner came to know  that it was not issued by the competent authority, the petitioner immediately applied for another OBC certificate and same was issued to the petitioner on 30th March, 2017. Learned counsel for the petitioner states that during the inquiry the petitioner clearly stated that he was allowed to join on the basis of OBC certificate dated 30th March, 2017 and not the certificate dated 18th May, 2016. Learned counsel for the respondent has filed an affidavit dated 11th January, 2022 which states that it has been verified at E-District Portal available with the Sub-Division, Rajouri Garden and it has been found that the same has been issued by the proper authority and the petitioner belongs to OBC Gurjar Caste. In the opinion of the Court since the petitioner belongs to OBC Gurjar Caste  is directed to be reinstated in service within four weeks of uploading of the order and It is made clear that the petitioner shall not be entitled for payment of salary for the period that he has not worked i.e. from the date of removal of service till the date of rejoining. However, the said period shall be counted for promotion, seniority and pay fixation purposes.

IN THE HIGH COURT OF DELHI AT NEW DELHI EX CT BAJRANG LAL Through: Mr. A.K. Trivedi Advocate UNION OF INDIA Through: Mr. Avnish Singh Advocate Date of Decision: 24th February 2022 HON BLE MR. JUSTICE MANMOHAN HON BLE MR. JUSTICE NAVIN CHAWLA JUDGMENT MANMOHAN J (Oral Matter has been heard by way of video conferencing Present writ petition has been filed challenging the orders dated 29th December 2019 4th June 2020 and 7th June 2021 whereby the petitioner was removed from service. Petitioner seeks a direction to the respondent to reinstate the petitioner in service with all consequential benefits Learned counsel for the petitioner states that the petitioner was appointed as a Constable GD in CISF after qualifying a competitive examination held by Staff Selection Commission on 3rd April 2017. He states that the petitioner served the department to the satisfaction of his superior officers till the passing of the impugned order. He states that vide Memorandum dated 7th September 2019 a charge sheet was issued to the petitioner alleging that the petitioner had secured employment by producing a false and fabricated OBC certificate. He states that the petitioner had applied for the Caste certificate dated 18th May 2016 with the help of some private person sitting outside the Court. He also states that when the petitioner came to know that the same was not issued by the competent authority the petitioner immediately applied for another OBC certificate and same was issued to the petitioner on 30th March 2017 by the competent authority. He points out that these facts were in the knowledge of the concerned authority and at submitted the caste certificate dated 30th March 2017 the time of his joining the petitioner had Learned counsel for the petitioner states that the petitioner filed his reply to the charge sheet vide representation dated 17th September 2019 denying the charges and explaining his position. However the disciplinary authority appointed the inquiry officer without considering the same. He states that the charge sheet was based on letters stated to be issued by the Tehsildar Patel Nagar Delhi whereas during the inquiry Tehsildar Patel Nagar New Delhi was not called as a witness to prove these documents He states that the charges cannot be said to be proved on the basis of documents which had not been proven. He states that during the inquiry the petitioner clearly stated that he was allowed to join on the basis of OBC certificate dated 30th March 2017 which had been issued by Rajouri Garden Tehsildar and not the certificate dated 18th May 2016. He further states that the petitioner also requested the authorities to verify the subsequent Caste certificate from the concerned Tehsildar Learned counsel for the petitioner states that the inquiry officer without verifying the correctness of the OBC certificate dated 30th March 2017 submitted his report on 15th November 2019 and that too without affording any opportunity to the petitioner to submit his defence. He states that disciplinary authority failed to consider the contentions of the petitioner and passed the impugned order removing the petitioner from service On 4th October 2021 when the present writ petition was taken up for hearing this Court had directed the learned counsel to obtain instructions as to whether the petitioner’s subsequent Caste certificate dated 30th March 2017 submitted at the time of joining was genuine or not Learned counsel for the respondent has filed an affidavit dated 11th January 2022. Along with the said affidavit a letter dated 12th November 2021 issued by the Sub Divisional Magistrate Rajouri Garden GNCT of Delhi has been enclosed In the said letter it has been admitted that the Certificate dated 30th March 2017 has been verified at E District Portal available with the Sub Division Rajouri Garden and it has been found that the same has been issued by the proper authority. In the said letter it is also stated that as per the verification report the applicant belongs to OBC In the opinion of this court since the petitioner belongs to OBC Gurjar Caste there is a ring of truth in what the petitioner has stated in the present In any event the petitioner being an OBC is entitled to the benefit of his caste Consequently the impugned orders dated 29th December 2019 4th June 2020 and 7th June 2021 are set aside and the petitioner is directed to be reinstated in service within four weeks of uploading of the order It is made clear that the petitioner shall not be entitled for payment of salary for the period that he has not worked i.e. from the date of removal of service till the date of rejoining. However the said period shall be counted for promotion seniority and pay fixation purposes 11. With the aforesaid observation and direction present writ petition is MANMOHAN J NAVIN CHAWLA J FEBRUARY 24 2022 Page

IPC Section 149- There should be a clear and reasonable nexus between the crime and the role of the accused: Supreme Court of India

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. 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 behavior at or near the scene of the offence, the motive for the crime, the arms carried by them and such other relevant considerations. The same was observed by Hon’ble, Mukeshkumar Rasikbhai Shah J in the matter of Taijuddin vs. State of Assam & Ors. – [Criminal Appeal No. 1526 of 2021]. In this case, a land dispute had caused the loss of life of Abdul Wahab (‘the victim’). A house was being constructed on land stated to be of the victim, when the accused persons came in a mob towards the house of the victim armed with lathis, spears, etc. The victim tried to escape by taking shelter but did not succeed as the house was surrounded, its walls were broken and a mounted assault was made on the victim. Different accused were assigned different roles to the extent of the weapon they wielded. The body of the victim was carried and disposed of by throwing in the river Brahmaputra. A Case was registered by Bagbar police station under Sections of the IPC. The decomposed body of the victim was recovered subsequently, which was sent for post-mortem. Charges were framed against the accused under the IPC and all the accused pleaded not guilty. The learned Sessions Judge convicted all the accused and sentenced them to life imprisonment. The convicted persons preferred appeals. A Division bench of the Gauhati High Court decided the appeals convicting some of them while giving benefit of doubt to others. The unsuccessful appellants preferred appeals before this Court and their SLPs were dismissed. The only exception was the present criminal appeal/special leave petition filed by Taijuddin, in which notice was issued on the plea that the role assigned to the appellant was only of having pointed out the house where the victim was hiding. The learned Counsel appearing on behalf of the appellant took us through a summary chart filed qua the appellant and others which specified which witness had stated what. The chart qua the appellant before us would show that the family of the victim did not mention the appellant at all. The informant, attributed to the appellant the role of pointing out the location of the deceased. Nothing more is stated qua the appellant. counsel for the appellant referred to a sketch map of the site, placed on record to submit that house “F” belonged 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. In our view, learned counsel for the appellant rightly contended that 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. 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 IPC. Supreme court after perusing the facts and arguments presented, held that – “. 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 assembly. 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 is set aside. The appeal is accordingly allowed leaving the parties to bear their own costs” Click here to read the Judgement

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

[Case Brief] Town Area Committee and Ors. Vs. Prabhu Dayal and Ors.

A legal act, though motivated by malice, will not make the actor liable to pay damages. The plaintiff had made constructions of 16 shoos on the old foundations of the building known as Garhi and the defendants Town Area Committee acting through its Chairman and Vice-Chairman, who are defendants 2 and 3 demolished these constructions.The trial Court held that the plaintiff had made constructions without complying with the requirements of Section 178 and obtaining sanction as required under Section 180 of the Act. It also found that the provisions had been made applicable to the town area and in the absence of necessary sanction the Board had a right to demolish the constructions. On these findings the trial Court dismissed the suit.Plaintiff went up in appeal. The appeal was allowed by the first appellate Court and suit was decreed against defendants. Nos. 1 to 3. The claim was however, dismissed as against defendant No, 4, i. e. the State of U. P. The first appellate Court held that the Chairman and Vice-Chairman had acted with malicious intention in ordering the demolition of the building. It held that the order of the District Magistrate could not legalise the demolition because the notice had not given reasonable time to the plaintiff to demolish the constructions. Defendants Nos. 1, 2 and 3 -have now come UD in appeal. ISSUE BEFORE THE COURT:Whether the no second appeal would lie in view of Section 102, Civil Procedure Code?Whether the demolition by the respondents in the present matter was legal?Whether the actor indulging in a legal act though motivated by malice, be made liable for any damages? RATIO OF THE COURTA preliminary objection has been, raised on behalf of the respondents to the effect that no appeal lies. Section 15 of the Provincial Small Cause Courts Act makes all suits cognizable by the Court of Small Causes except those which are specified in the second schedule. Clause 35 (j) of the second schedule is relevant for purposes of this case. According to him this exception applies only to such cases where the process is legal but the execution alone is illegal. This contention cannot be accepted as no such distinction can be read in Clause (j) of exception 35 of the second schedule. It is not understandable that the legislature will exclude a case where the process is legal and the execution alone is illegal from the cognizance of a Court of Small Causes, but will let a case where both the process and the execution are illegal cognizable by summary Court. The actual, damage in both such cases is suffered not by the issue of the legal process, but only by its execution. The suit in either case is of a similar nature and will be excluded from the cognizance of the Court of Small Causes. The second appeal will therefore lie. The preliminary objection is overruled.The Hon’ble High Court observed that the lower appellate Court has completely misdirected itself. The claim was on the basis of damages caused to the plaintiff by an act of the defendants. The plaintiff can get compensation only if he proves to have suffered injury because of an illegal act of the defendant and not otherwise. Malice does not enter the scene at all. A legal act, though motivated by malice, will not make the actor liable to pay damages. Before the plaintiff can get any damages he must prove that he had suffered an injury. Law does not take into account all harms suffered by a person which caused no legal injury. Damage so done is called damnum sine injuria. Such a damage does not give the sufferer any right to get compensation.According to learned counsel for the plaintiff, the demolition was not done in accordance with law as the notice did not give reasonable time, and hence the Municipal Board will be liable to pay damages. Had the plaintiff made a complaint that he had suffered a loss because the demolition was done the same day and he would not have suffered loss if greater time had been granted for demolishing the illegal constructions, that would have been a different matter. The case of the plaintiff, however, was that he had a right to maintain the building and the action of Board was bad because it was mala fide. In this plea the time factor ceases to be of any importance. The notice cannot in these circumstances be said to be such as to make the consequential action illegal.Moreover, there is also no merit in the contention of the learned counsel that the plaintiff had suffered injuria by the act of the demolition of the building because he had a fundamental right to hold and enjoy the property even though it was constructed without prior sanction from the Municipal authorities. There is no right to enjoy property not legally obtained or constructed. A person has been given by law a right to construct a building, but that right is restricted by various enactments, one of which is the U. P. Municipalities Act. DECISION HELD BY COURT:As the plaintiff has failed to prove that he had suffered injuria in the legal sense, he is not entitled to set any compensation. The decree of the Court below cannot even though the plaintiff may have suffered damages, be sustained.In the result, the appeal is allowed, the decree of the lower appellate Court is set aside and that of the trial Court restored. In the circumstances of the case parties will bear their own costs.

Briefcased.in Case Name: Town Area Committee and Ors. Vs. Prabhu Dayal and Ors.. Case Year: 1974 A legal act though motivated by malice will not make the actor liable to pay Case Brief] Town Area Committee and Ors. Vs. Prabhu Dayal and Ors. Case name: Town Area Committee and Ors. Vs. Prabhu Dayal and Case number: Second Appeal No. 42965 THE HIGH COURT OF ALLAHABAD Hari Swarup J. Decided on: Sections 9 and 100 of Code of Civil Procedure 1908 U.P. Municipalities Act 1916 and Provincial Small Cause Courts Act 1887  BRIEF FACTS AND PROCEDURAL HISTORY: 1. The plaintiff had made constructions of 16 shoos on the old foundations of the building known as Garhi and the defendants Town Area Committee acting through its Chairman and Vice Chairman who are defendants 2 and 3 demolished these constructions. 2. The trial Court held that the plaintiff had made constructions without complying with the requirements of Section 178 and obtaining sanction as required under Section 180 of the Act. It also found that the provisions had been made applicable to the town area and in the 1 | P a g e Briefcased.in Case Name: Town Area Committee and Ors. Vs. Prabhu Dayal and Ors.. Case Year: 1974 absence of necessary sanction the Board had a right to demolish the constructions. On these findings the trial Court dismissed the suit. 3. Plaintiff went up in appeal. The appeal was allowed by the first appellate Court and suit was decreed against defendants. Nos. 1 to 3. The claim was however dismissed as against defendant No 4 i. e. the State of U. P. The first appellate Court held that the Chairman and Vice Chairman had acted with malicious intention in ordering the demolition of the building. It held that the order of the District Magistrate could not legalise the demolition because the notice had not given reasonable time to the plaintiff to demolish the constructions. Defendants Nos. 1 2 and 3 have now come UD in appeal.  ISSUE BEFORE THE COURT: 1. Whether the no second appeal would lie in view of Section 102 Civil Procedure Code 2. Whether the demolition by the respondents in the present matter was legal 3. Whether the actor indulging in a legal act though motivated by malice be made liable for any damages  RATIO OF THE COURT 1. A preliminary objection has been raised on behalf of the respondents to the effect that no appeal lies. Section 15 of the Provincial Small Cause Courts Act makes all suits cognizable by the Court of Small Causes except those which are specified in the second schedule. Clause 35 of the second schedule is relevant for purposes of this case. According to him this exception applies only to such cases where the process is legal but the execution alone is illegal. This contention cannot be accepted as no such distinction can be read in Clauseof exception 35 of the second schedule. It is not understandable that the legislature will exclude a case where the process is legal and the execution alone is illegal from the cognizance of a Court of Small Causes but will let a case where both the process and the execution are illegal cognizable by summary Court. The actual damage in both such cases is suffered not by the issue of the legal process but only by its execution. The suit in either case is of a similar nature and will be excluded from the cognizance of the Court of Small Causes. The second appeal will therefore lie. The preliminary objection is overruled. 2 | P a g e Briefcased.in Case Name: Town Area Committee and Ors. Vs. Prabhu Dayal and Ors.. Case Year: 1974 2. The Hon’ble High Court observed that the lower appellate Court has completely misdirected itself. The claim was on the basis of damages caused to the plaintiff by an act of the defendants. The plaintiff can get compensation only if he proves to have suffered injury because of an illegal act of the defendant and not otherwise. Malice does not enter the scene at all. A legal act though motivated by malice will not make the actor liable to pay damages. Before the plaintiff can get any damages he must prove that he had suffered an injury. Law does not take into account all harms suffered by a person which caused no legal injury. Damage so done is called damnum sine injuria. Such a damage does not give the sufferer any right to get compensation. 3. According to learned counsel for the plaintiff the demolition was not done in accordance with law as the notice did not give reasonable time and hence the Municipal Board will be liable to pay damages. Had the plaintiff made a complaint that he had suffered a loss because the demolition was done the same day and he would not have suffered loss if greater time had been granted for demolishing the illegal constructions that would have been a different matter. The case of the plaintiff however was that he had a right to maintain the building and the action of Board was bad because it was mala fide. In this plea the time factor ceases to be of any importance. The notice cannot in these circumstances be said to be such as to make the consequential action illegal. 4. Moreover there is also no merit in the contention of the learned counsel that the plaintiff had suffered injuria by the act of the demolition of the building because he had a fundamental right to hold and enjoy the property even though it was constructed without prior sanction from the Municipal authorities. There is no right to enjoy property not legally obtained or constructed. A person has been given by law a right to construct a building but that right is restricted by various enactments one of which is the U. P. Municipalities Act.  DECISION HELD BY COURT: 1. As the plaintiff has failed to prove that he had suffered injuria in the legal sense he is not entitled to set any compensation. The decree of the Court below cannot even though the plaintiff may have suffered damages be sustained. 2. In the result the appeal is allowed the decree of the lower appellate Court is set aside and that of the trial Court restored. In the circumstances of the case parties will bear their own 3 | P a g e

Separate court fee is required to be paid on the amount of counter claim except where the fees has been fixed by the Court: High Court of Delhi

Proviso to Section 38(1) of the Act carves out a specific exception providing for Arbitral Tribunal to fix a separate fee for claims and counter claims. Where the fees has been fixed by the Court in terms of 4th Schedule to the Arbitration and Conciliation Act, 1996, Sections 38(1) would have no application. The term “sum in dispute” provided in the 4th Schedule to the Act has to be interpreted so as to include the aggregate value of the claims as well as counter claims and the same was upheld by High Court of Delhi through the learned bench led by JUSTICE AMIT BANSAL in the case of JIVANLAL JOITARAM PATEL vs. NATIONAL HIGHWAYS AUTHORITY OF INDIA [FAO (OS)(COMM) 70/2017] on 08.03.2022. The facts of the case that the parties to dispute agreed that claims of the respondent, and counter claims of the appellant would be adjudicated afresh, and that a sole Arbitrator may be appointed instead of a three-member Arbitral Tribunal, in order to save time and costs. At the hearing before the Arbitral Tribunal, the counsels were requested to address the Arbitral Tribunal on the issue whether counter claim(s) are to be included in the expression “sum in dispute” appearing in the 4th Schedule of the Arbitration and Conciliation Act, 1996, or the amount thereof is to be separately considered in terms of proviso to Section 38(1) of the Act. The senior counsels contended that the Sum in dispute includes both claim and counter claim amounts. If the legislature intended to have the Arbitral Tribunal exceed the ceiling limit by charging separate fee for claim and counter claim amounts, it would have provided so in the Fourth Schedule. The Court held that the Sections 31(8) and Section 31A would have no application where the fees of the arbitral tribunal has been fixed by agreement between the parties. Similarly, where the fees has been fixed by the Court in terms of 4th Schedule to the Act, as in the case at hand, Sections 38(1), 31(8) and Section 31A would have no application. The term “sum in dispute” provided in the 4th Schedule to the Act has to be interpreted so as to include the aggregate value of the claims as well as counter claims. The Court observed, “Proviso to Section 38(1) of the Act carves out a specific exception providing for Arbitral Tribunal to fix a separate fee for claims and counter claims. Counter claim would mostly be founded upon an independent cause of action, and can continue even if the main suit fails, or is withdrawn. Separate court fee is required to be paid on the amount of counter claim. Even in terms of Rule 3 of Delhi International Arbitration Centre and Rule 30 of Indian Council of Arbitration’s Rules of Domestic and Commercial Arbitration and Conciliation, claims and counter claims are assessed separately for calculation of arbitral fee.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment Reserved on : 28th January 2022 Judgment Delivered on : 08th March 2022 FAO70 2017 JIVANLAL JOITARAM PATEL … Appellant Through: Mr. Ritin Rai Senior Advocate with Ms. Aditi Rao Advocate. NATIONAL HIGHWAYS AUTHORITY OF INDIA… Respondent Through: Mr. Arun Kumar Verma Ms.Anchal Seth Advocates. HON BLE MR. JUSTICE VIPIN SANGHI HON BLE MR. JUSTICE AMIT BANSAL JUDGEMENT OF THE COURT CM No.14819 2021 This appeal was disposed of by a judgment dated 23rd January 2018 passed by the Division Bench with the consent of the parties. It was agreed that claims No.1 and 2 of the respondent and counter claims No.2 5 7 10 and 15 of the appellant be adjudicated afresh and that a sole Arbitrator may be appointed instead of a three member Arbitral Tribunal in order to save time and costs. The relevant extracts from the aforesaid judgment are set out below: FAO70 2017 “10. Parties agree that they would rely upon pleadings urged earlier and some additional plea which may be necessary on account of change in circumstances and legal objections may be required to be taken. Accordingly the present appeal is Justice Manmohan Sarin Former Chief Justice of the J&K High Court Mobile No. 9818000210 is appointed as the Sole Arbitrator who would decide the claims and counter claims arising out of the Agreement dated 17.11.2004 between the parties. He shall fix his fee us per the 4th Schedule of the Act of 1996. The legal objections of both parties are kept open. 12. Accordingly the present appeal is disposed of.” Emphasis Supplied) Pursuant to the above judgment the Arbitral Tribunal entered reference on 28th February 2018. In the Procedural Order dated 29th April 2019 it was noted the total amount of claim was Rs.33 53 27 205 inclusive of interest @ 18% per annum from 01st October 2006 to 28th February 2018) and the total amount of counter claim including interest was Rs.11 43 40 050 . Vide Procedural Order dated 21st August 2020 the Arbitral Tribunal fixed the arbitral fees as Rs.40 44 795 in terms of ratio of the judgment of this Court in Rail Vikas Nigam Vs. Simplex Infrastructure Ltd. MANU DE 1367 2020 and both the parties consented to the fixation of the aforesaid arbitral fees. At the hearing before the Arbitral Tribunal on 26th November 2020 the counsels were requested to address the Arbitral Tribunal on the issue whether counter claim(s) is are to be included in the expression “sum in dispute” appearing in the 4th Schedule of the Arbitration and Conciliation Act 1996or the amount thereof is to be separately considered in terms of proviso to Section 38(1) of the Act. FAO70 2017 After hearing both parties the Arbitral Tribunal passed the order dated 27th January 2021 holding that the applicable arbitral fee in the present case has to be assessed separately for the claim and counter claim. While arriving at this conclusion the Arbitral Tribunal noted the following: Initially it was agreed between the parties that they do not need to file fresh pleadings or lead evidence but as the arbitration progressed need for further evidence arose and parties filed fresh documents and directions for production of records were given by the Arbitral counter claims. ii) Proviso to Section 38(1) of the Act carves out a specific exception providing for Arbitral Tribunal to fix a separate fee for claims and iii) Counter claim would mostly be founded upon an independent cause of action and can continue even if the main suit fails or is withdrawn. iv) Separate court fee is required to be paid on the amount of counter v) Adjudication of claims and counter claims mostly require additional or separate evidence and arguments. vi) Claims in a particular case may cross the ceiling provided under the 4th Schedule to the Act and if counter claims are filed thereafter and they are taken together with a claim the Arbitral Tribunal would have to decide the counter claims as well as the claims without any additional fee and this could not be the intention of the Statute. vii) Dictum of combining claims and counter claims for the purposes of determining fee under the 4th Schedule could result in inequitable FAO70 2017 situations contrary to the express language of Section 38(1) of the viii) The aforesaid contentions were neither raised nor considered by this in Delhi State Industrial Infrastructure Development Corporation Ltd. Vs. Bawana Infra Development Pvt. Ltd. 2018 SCC OnLine Del 9241. ix) A conjoint reading of Sections 38(1) and 31A of the Act leaves no doubt that arbitral fees and expenses can be fixed by the Arbitral Tribunal separately for claims and counter claims. x) Even in terms of Rule 3 of Delhi International Arbitration Centre hereinafter „DIAC Rules‟) and Rule 30 of Indian Council of Arbitration’s Rules of Domestic and Commercial Arbitration and Conciliation claims and counter claims are assessed separately for calculation of arbitral fee. After making the above said observations and fixing the arbitral fee separately for claims and counter claims the Arbitral Tribunal gave liberty to the parties to approach this Court for seeking clarification in the matter of fixation of arbitral fees. Accordingly the present application has been filed on behalf of the applicant appellant seeking clarification with regard to the fixation of arbitral fee. Reply to the application was filed on behalf of the respondent opposing the fixation of arbitral fee by the Arbitral Tribunal by taking the claims and counter claims separately. 8. We have heard the senior counsels on behalf of the parties. It is the common submission on behalf of both the sides that the judgment of the FAO70 2017 Single Judge of this Court in DSIIDC lays down the correct law with regard to fixation of arbitral fees under the 4th Schedule to the Act when the Arbitral Tribunal is adjudicating a claim as well as counter claim. It is further submitted by the senior counsels that Sections 38(1) and 31A of the Act would come into play only when the Arbitral Tribunal is itself fixing the fees and not when the fees of the Arbitral Tribunal has been fixed by the Court in terms of 4th Schedule to the Act. It is contended by the senior counsels that the reliance placed by the Arbitral Tribunal on the proviso to Rule 3 of DIAC Rules is misplaced as the said proviso fixes the fee only when a party fails to pay its share of the 10. We have considered that aspects taken note of by the Ld. Sole Arbitrator in his order dated 27.01.2021 and the submissions of Ld. Senior Counsels and also examined the decision above referred to. At the outset we may refer to the judgment in DSIIDCof the Act seeking interpretation of the fee schedule provided in 4th Schedule to the Act which came up for consideration before this Court. The Ld. Single Judge in DSIIDCcame to the conclusion that “sum in dispute” would include FAO70 2017 both the claim and counter claim amounts taken cumulatively. In arriving at this conclusion the Single Judge relied upon: 246th Law Commission Report giving the rationale behind fixing of a model schedule of fees so that arbitration becomes a cost effective solution for dispute resolution in the domestic context. ii) Rules of various Indian as well as international arbitral institutions with regard to fixation of arbitral fees. the fee schedule set by DIAC where “sum in dispute” is the cumulative value of claim and counter claim. 11. The relevant observations of the Single Judge in DSIIDCare set out below: “14. Even in the general parlance “Sum in dispute” shall include both claim and counter claim amounts. If the legislature intended to have the Arbitral Tribunal exceed the ceiling limit by charging separate fee for claim and counter claim amounts it would have provided so in the Fourth 15. Proviso to Section 38(1) of the Act can only apply when the Arbitral Tribunal is not to fix its fee in terms of the Fourth Schedule to the Act. It would not have any bearing on the interpretation to be put to the Fourth Schedule. It is noted that as regards fee even under the Amended Act the Arbitral in an ad hoc arbitration which is conducted without the intervention of the Court. Even where the Arbitral Tribunal is appointed by the Court under Section 11 of the Act in absence of rules framed under Section 11of the Act it is not in every case that the Arbitral Tribunal has to fix its fee in accordance with the Fourth Schedule to the Act. Therefore the proviso to Section 38(1) of the Act would have no bearing on the interpretation being put to the Fourth Schedule and the phrase “Sum in dispute” therein. its schedule of FAO70 2017 16. An argument was made that the adjudication of counter claim would require extra effort from the Arbitrator and therefore the Arbitrator should be entitled to charge a separate fee for the same. I cannot agree with this argument. The object of providing for counter claim is to avoid multiplicity of proceedings and to avoid divergent findings. Keeping the object of the amendment in view the ceiling on fee as prescribed in the Fourth Schedule of the Act cannot be allowed to be breached.” emphasis supplied) 12. We are in complete agreement with the aforesaid observations of the Single Judge in DSIIDCof the Act can only apply when the Arbitral Tribunal fixes its own fees as in the case of most ad hoc arbitrations. The said proviso cannot apply when the fees of the Arbitral Tribunal has been fixed in terms of 4th Schedule to the Act. Therefore Section 38(1) of the Act and its proviso cannot be resorted to while interpreting the term “sum in dispute” as occurring in the 4th Schedule to the Act. 13. Rule 3 of the DIAC Rules relied upon by the Arbitral Tribunal in its order dated 27th January 2021 is set out below: “3. Arbitrators Fees i)The fees payable to the Arbitrators shall be determined in accordance with the scales specified in Schedules „B C D & E‟ to these rules. FAO70 2017 and counter claims(s). PROVIDED that in the event of failure of party to arbitration to pay its share as determined by the centre on the aggregation of claim(s) and counter claim(s) the Centre may assess the claim(s) and counter claim(s) separately and demand the same from the parties concerned. " Schedule B provides for Arbitrator’s fee in Domestic Arbitrations and Schedule C provides for Arbitrator’s fee in Summary Arbitrations. It is provided therein that “Sums in dispute mentioned in the Schedule B and C above shall include any counter claim made by a party”. 14. There is no ambiguity in the aforesaid Rule. The arbitral fee has to be determined on the basis of aggregate amount of claim and counter claim. The proviso to Rule 3 of the DIAC Rules kicks in only when the party fails to pay its share of the aggregate amount of claim and counter claim. Thus in such cases DIAC has the discretion to assess the claim and counter claim separately and demand the same from the parties. The proviso does not deal with the aspect of computation of the arbitral fee. To read rule 3(ii) as “The fee shall be determined and assessed on the amount of the claim(s) and counter claim(s) and aggregated” would do violence to the plain and ordinary grammatical meaning of the said Rule. The parties agreed to appointment of the Sole Arbitrator and to his fee being fixed in accordance with the Fourth Schedule of the Act on the clear understanding of inter alia Rule 3(ii) to mean that the fee of the Sole Arbitrator shall be fixed on the aggregate of the claim(s) and counter claim(s). To now call upon them to pay separate fee for the claim(s) and counter claim(s) would not be fair to them and is bound to cause them embarrassment. If the interpretation FAO70 2017 proposed by the Ld. Sole Arbitrator was known to them they or one of them may not have agreed to the appointment of the Sole Arbitrator. Similarly the Tribunal was conscious when it accepted and embarked upon the reference of the intent of fee that would be payable and the limitations on it. Having chosen to accept the assignment the fee cannot be enhanced by a process of interpretation of the Rules not in consonance with the interpretation already adopted. 15. As regards the observations made in the order dated 27th January 2021 of the Arbitral Tribunal with regard to counter claim being an independent action requiring separate adjudication this aspect has also been considered by the Single Judge in DSIIDCin paragraph 16 set out above. We fully concur with the findings of the Single Judge in this regard. Here it may also be relevant to note that unlike a civil suit where a counter claim could be in respect of a totally different transaction in the context of arbitral proceedings the counter claim has to necessarily be in relation to the arbitration agreement. Therefore in the context of arbitration proceedings it may not be correct to say that counter claim would be an “independent” cause of action. It seems from the same subject matter transation. 16. The judgment of the Single Judge of this Court in M s Chandok Machineries Vs. M s. S.N. Sunderson & Co. 2018 SCC OnLine Del 11000 relied upon by the Arbitral Tribunal was in a different context. In that case this Court while appointing the Arbitral Tribunal had directed that the fee shall be fixed by the Arbitral Tribunal itself. In this regard reference may be made to paragraph 36 of the judgment: “36. It may further be noted that this Court while appointing the Presiding Arbitrator vide its order dated 27 November 2015 in Arbitration Petition No. 365 2015 had directed that FAO70 2017 the fee shall be fixed by the learned Arbitrator himself. Therefore it was for the Arbitral Tribunal to fix its own fee and merely because it gives a reference to the Fourth Schedule of the Act while fixing its fee it cannot be said that it had bound itself to the said Fourth Schedule.” Therefore in that case the Arbitral Tribunal was not bound to fix the fee in terms of the 4th Schedule to the Act. It was in that context that this Court while relying upon Section 38 of the Act observed in paragraph 39 that Arbitral Tribunal may fix separate amount of deposit for the claims and counter claims and upheld the decision of the Arbitral Tribunal fixing separate fee in respect of claim and counter claim. Therefore in our view there is no conflict between the judgments in DSIIDC and M s Chandok Machineriesare set out below: “43. In my view the scheme of 1996 Act is such that the provisions of Section 38(1) 31(8) and 31A are inextricably interlinked. These provisions cannot be read in isolation. The proviso to Section 38(1) clearly states that where there are claims and counter claims before the arbitral tribunal the Arbitral Tribunal may fix separate amount of deposits for the claim and counter claim. Section 38(1) clarifies that the “amount of deposit” is to be directed “as an advance for the FAO70 2017 costs referred to in sub sectionof Section 31”. Sub section 8) of Section 31 requires the Arbitral Tribunal to fix the costs of arbitration in accordance with Section 31A. The explanation to Section 31A(1) clearly states that for the purposes of Section 31A(1) the expression “costs” means reasonable costs relating to inter alia “the fees and expenses of the arbitrators”. 44. Mr. Upadhyay also sought to contend that the word “fees” has to be segregated from the concept of “costs” in the 1996 Act. Empirically stated this may be correct however for the purposes of application of Section 31A(1) it is not possible to dichotomise “fees” and “costs”. This submission in my view would be in the teeth of Section 31(8) read with Section 31A and cannot therefore be accepted. 45. Section 31(8) requires the arbitral tribunal to fix the costs of the arbitration and the explanation to Section 31A(1) clearly holds that the words “costs” means reasonable costs to the expression “costs” this arbitrators”. Apart statutorily also means reasonable costs relating tothe fees and expenses of the Courts and witnesses legal fees and expenses any administration fees of the institution supervising the arbitrationand any other expenses incurred in connection with the arbitral or Court proceedings and the arbitral award.” fees and expenses of inter alia “the 18. While arriving at the aforesaid finding the Single Judge in NTPC supra) concurred with the view expressed in M s Chandok Machineries supra) without going into the issue if there is an inconsistency between DSIIDCand M s Chandok Machineriesand NTPC were in the context of interpreting Sections 38(1) and 31A of the Act where the Arbitral Tribunal was free to fix its own fees and the fee was not fixed by the Court in terms of 4th Schedule to the Act. In DSIIDC the FAO70 2017 fees of the Arbitral Tribunal was specifically fixed by this Court in terms of 4th Schedule to the Act. Therefore there is no inconsistency between the judgments of this Court in DSIIDCon one hand and M s Chandok Machineriesand NTPCon the other hand. The judgments in M s Chandok Machineriesand NTPCcannot be resorted to for interpretation of the words “sum in dispute” as occurring in 4th Schedule to the Act. Therefore in our view the said judgments are not applicable to the facts and circumstances of the present case. 20. Our attention was also drawn to the judgement of the Supreme Court in National Highways Authority of India Vs. Gayatri Jhansi Roadways Limited 2019 SCC OnLine SC 906. The issue before the Supreme Court in the aforesaid case was whether the fee of the Arbitral Tribunal was to be fixed in terms of the agreement between the parties or the 4th Schedule to the Act. In the facts of that case the Supreme Court held that the fees was to be fixed in terms of the agreement between the parties and not the 4th Schedule to the Act. It was in that context that the Supreme Court made the following observations: “14. However the learned Single Judge s conclusion that the change in language of Section 31(8) read with Section 31 A which deals only with the costs generally and not with arbitrator s fees is correct in law. It is true that the arbitrator s fees may be a component of costs to be paid but it is a far cry thereafter to state that Sections 31(8) and 31 A would directly govern contracts in which a fee structure has already been laid down. To this extent the learned Single Judge is correct. We may also state that the declaration of law by the learned Single Judge in Gayatri Jhansi Roadways Ltd. is not a correct view of the law.” FAO70 2017 21. Thus Sections 31(8) and Section 31A would have no application where the fees of the arbitral tribunal has been fixed by agreement between the parties as in the case before the Supreme Court. Similarly where the fees has been fixed by the Court in terms of 4th Schedule to the Act as in the case at hand Sections 38(1) 31(8) and Section 31A would have no application. The term “sum in dispute” provided in the 4th Schedule to the Act has to be interpreted so as to include the aggregate value of the claims as well as counter claims. 22. The application stands disposed of in the above terms. VIPIN SANGHI J.) MARCH 08 2022 FAO70 2017

If the offence alleged against the accused is proved, then the accused/Directors will have to be sentenced as the Company: Bombay High Court

Courts can always impose a sentence of fine and the sentence of imprisonment can be ignored as it is impossible to be carried out in respect of a company. Thus, if it is observed that the company/accused has committed offences with a dishonest intention then the Courts will impose liability and punishment. This remarkable judgment was passed by the Bombay High Court in the matter of GANESH BENZOPLAST LIMITED V MORGAN SECURITIES CREDITS PRIVATE LIMITED & ANR. [CRIMINAL WRIT PETITION NO.127 OF 2020] by Honourable Justice A. S. Gadkari. This petition was filed under Article 227 of the Constitution of India and under Section 482 of the CrPC. The Petitioner Ganesh Benzoplast Limited is Complainant and respondent, Morgan Securities Credits Pvt. Ltd. is accused. It is the case of the complainant that the complainant is a company incorporated under the provisions of Companies Act, 1956. That, Ganesh Benzoates Pvt. Ltd. is the sister concern company of the complainant and as a Guarantor provided the security to the accused on behalf of complainant against the Inter Corporate Deposit facility. The accused Nos.2 to 4 are the Directors of company and are responsible for day-to-day affairs. In the month of March, 2000 accused No.1 Morgan Securities Credits Pvt. Ltd. agreed to provide an ICD facility to the complainant to the tune of Rs.50 lacs. A Letter of Pledge dated 7th March, 2000 was executed by Ganesh in favour of Morgan and Ganesh pledged 15 lakh Equity Shares and the said shares were pledged with the accused only as a security. Complainant Ganesh faced acute financial hardship and could not repay the ICD and therefore, on the due date asked Morgan to recover ICD dues by selling the pledged shares and remitting the balance sale proceeds to the complainant. The accused invoked clause No.17 of the ICD Agreement and appointed a Sole Arbitrator, claiming balance loan amount against the complainant. The HC observed that, “the accused have committed criminal breach of trust of the complainant and have deceived it thereby committing an act of cheating. As a matter of fact, the complainant has made out a strong prima facie case against the accused for issuance of process. Taking into consideration the aforestated facts, it clearly appears to this Court that, the learned Magistrate has not committed any error while passing the impugned Order.” It was stated, “vicarious liability is being foisted upon it, which the learned counsel wants this Court to test it at the stage of issuance of process. The same is contrary to the settled principles of law. It is well settled that, at the time of issuance of process, the Magistrate is required to conduct an inquiry for the limited purpose of finding out whether a prima facie case for issuance of process has been made out and it is limited only to the ascertainment of the truth or falsehood of the allegations made in the complaint.” The Honourable Bench asserted that, “After applying a ratio laid down by the Hon’ble Supreme Court in the case of Iridium India Telecom Ltd. (Supra), it is clear that, the accused No.1-Morgan is a necessary party for proper adjudication of the complaint. It is to be noted here that, the Letter of Pledge (Agreement) dated 7th March, 2000 is executed by the Authorized Signatory of the complaint on behalf of it, in favour of the accused No.1 company and therefore also impleadment of Morgan (A-No.1) is necessary for proper adjudication of the present complaint. The contention that, the accused No.1 is being foisted with vicarious liability, is the defence and a specious plea raised by the said accused. The accused No.1 will have to prove the said defence at the time of trial by leading cogent and plausible evidence in that behalf.”

on 26 04 2021 on 27 04 ssm 1 wp127.20gp final.docIN THE HIGH COURT OF JUDICATURE AT BOMBAYCRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.127 OF 2020WITHINTERIM APPLICATION NO.220 OF 2020INCRIMINAL WRIT PETITION NO. 127 OF 2020Ganesh Benzoplast Limited Through its authorized representative Mr.Ramesh Pilani ….Petitioner.Vs.Morgan Securities Credits Private Limited & Anr. ….Respondents. WITHCRIMINAL WRIT PETITION NO. 128 OF 2020WITHINTERIM APPLICATION NO.221 OF 2020INCRIMINAL WRIT PETITION NO.128 OF 2020Ganesh Benzoplast Limited Through its authorized representative Mr.Ramesh Pilani ….Petitioner.Vs.Prakash Aggarwal & Anr.….Respondents. WITHCRIMINAL WRIT PETITION NO. 129 OF 2020WITHINTERIM APPLICATION NO.222 OF 2020IN1 34 on 26 04 2021 on 27 04 ssm 2 wp127.20gp final.docCRIMINAL WRIT PETITION NO.129 OF 2020Ganesh Benzoplast Limited Through its authorized representative Mr.Ramesh Pilani ….Petitioner.Vs.Meera Goyal & Anr.….Respondents. WITHCRIMINAL WRIT PETITION NO. 130 OF 2020WITHINTERIM APPLICATION NO.223 OF 2020INCRIMINAL WRIT PETITION NO. 130 OF 2020Ganesh Benzoplast Limited Through its authorized representative Mr.Ramesh Pilani ….Petitioner.Vs.Suresh Chand Goyal & Anr. ….Respondents. WITHCRIMINAL WRIT PETITION NO. 348 OF 2020Suresh Chand Goyal ….Petitioner.Vs.1 The State Of Maharashtra 2 Ganesh Benzoplast Limited….Respondents. WITHCRIMINAL WRIT PETITION NO. 349 OF 2020Prakash Aggarwal ….Petitioner.Vs.1 The State Of Maharashtra 2 Ganesh Benzoplast Limited ….Respondents. WITHCRIMINAL WRIT PETITION NO. 357 OF 20202 34 on 26 04 2021 on 27 04 ssm 3 wp127.20gp final.docMeera Goyal ….Petitioner.Vs.1 The State Of Maharashtra 2 Ganesh Benzoplast Limited ….Respondents. Mr. M.G. Shukla a w Ms. Chaula Solanki a w Mr. H.H. Nagi i by Nagi &Associates for the Petitioners in Writ Petition Nos.1220 1220 1220 and 1320 and for the Respondent No.2 in Writ PetitionNos.348 2020 3420 and 3520. Mr. Aabad Ponda Senior Advocate a w Mr. Abhishek Gupta and Mr. RaviMishra i by MZM Legal for the Petitioners in WP Nos. 3420 349 of2020 and 3520 and for Respondent accused in Writ Petition Nos.127of 2020 1220 1220 and 1320.Mr. A.R. Patil APP for the Respondent State in all Petitions.CORAM : A. S. GADKARI J.RESERVED ON : 10th MARCH 2021 PRONOUNCED ON : 26th APRIL 2021.JUDGMENT: 1)The aforementioned Petitions are filed under Article 227 of theConstitution of India and under Section 482 of the Code of CriminalProcedure 1973facilityprovided by the accused No.1 to the complainant to the extent of Rs.50lacs. The accused Nos.2 to 4 are the Directors of accused No.1 companyand are responsible for day to day affairs and acts of accused No.1. 4.1)In the month of March 2000 accused No.1 Morgan SecuritiesCredits Pvt. Ltd.agreed to provide an ICD facility to5 34 on 26 04 2021 on 27 04 ssm 6 wp127.20gp final.docthe complainant Ganesh Benzoplast Limitedto thetune of Rs.50 lacs. Accordingly on 7th March 2000 ICD Agreement D.P.Note Letter of Continuity ICD Receipt Personal Guarantee Deed andCorporate Guarantee Deed were executed between the parties. Morganpaid Rs.50 lacs to Ganesh vide cheque No.048526 dated 7th March 2000. 4.2)A Letter of Pledge dated 7th March 2000 was executed byGanesh in favour of Morgan and Ganesh pledged 15 lakh Equity Shares inDemat form owned by it in favour of Morgan. The said shares werepledged with the accused only as a security. At the time of pledging of thesaid shares with accused the value of each share was Rs.16 and 15 lakhshares were worth Rs.2 crore 40 lakhs. The said shares could not be soldand transferred pursuant to the Pledge Agreement and SEBI guidelines. Asudden market depression led to a fall in the value of the pledged shares.Morgan therefore issued notice dated 3rd May 2000 to Ganesh asking it topledge additional shares as the value of pledged shares had decreased toRs.1 24 50 000 resulting in a short fall of Rs.75 50 000 from the agreedsecurity cover i.e. 200% of the ICD amount. At that relevant time the valueof shares was Rs.8.30 to 8.50 per share. 4.3)Complainant Ganesh faced acute financial hardship due toglobal recession and could not repay the ICD and therefore on the duedate of said ICD i.e. on 5th June 2000 asked Morgan to recover ICD dues by6 34 on 26 04 2021 on 27 04 ssm 7 wp127.20gp final.docselling the pledged shares and remitting the balance sale proceeds to thecomplainant. At that time the accused No.1 Morgan assured that as andwhen they would sale Security then they will inform accordingly and givecredit balance amount of sale proceeds. That the accused despite sendingnotice kept assuring that they will give details of shares in due course andkept on recovering interest on ICD and asked complainant not to mix theissue of sale of shares with interest on ICD. The complainant paid intereston ICD from time to time i.e. between 28th September 2000 to 6th August 2001. Morgan issued notice on 2nd August 2001 to GaneshofAccused No.1 company to the extent of Sec.406 r w 34 of the IPC.8)As such the Directorshave filed aforestatedCriminal Writ Petition Nos.348 349 and 3520 challenging theimpugned Order to the extent it upheld the summoning Order underSection 406 read with 34 of the IPC against them. The complainant Ganesh has filed aforestated Writ PetitionNo.1220 challenging complete exoneration of Morganvideimpugned Order dated 2nd December 2019. The complainant Ganesh hasalso filed aforestated Criminal Writ Petition Nos.128 129 and 1320challenging the impugned Orders to the extent it exonerated the Directorsof Morgan for the offences under Section 420 of IPC and under Section 15 HA of SEBI Act. 9)It is to be noted here that at the outset Mr. Shukla the learnedcounsel for the complainant on instructions from its authorizedrepresentative submitted that the complainant is not pressing for11 34 on 26 04 2021 on 27 04 ssm 12 wp127.20gp final.docapplication of Section 15 HA of SEBI Act and the allegations made in thecomplaint to that extent will not be hereinafter further pursued. The saidstatement is accepted.10)Mr. Ponda learned Senior counsel appearing for the accusedpointed out various clauses from the Letter of Pledgedated 7thMarch 2000 executed between the parties and submitted that in view ofthe specific clauses in the said Pledge Agreement the accused had givenpower to the complainant to sell the said shares in case of particulareventuality. That as per the clauses of the said Agreement the accusedhad right to sell shares which they exercised and sold the said shares.That the accused can even sell the said shares to its group companies. Hesubmitted that in view thereof there cannot be any breach of trust and orcheating by the accused as alleged by the complainant.10.1)He submitted that at the time of issuance of process Orderdated 22nd March 2017 the arbitration award dated 9th December 2015was declared by the learned Arbitrator and the findings recorded thereinwere not taken into consideration by the Trial Court. That the averments inthe complaint and the objections raised by the accused persons in thearbitration proceedings are similar. That the interpretation of clauses ofthe Pledge Agreement of the accused have been accepted by the Arbitrator.He submitted that the arbitration award dated 9th December 2015 hasbinding effect. That the award mentions that there are no breaches12 34 on 26 04 2021 on 27 04 ssm 13 wp127.20gp final.doccommitted by the accused and therefore in his submission no criminal actalso has been made out by the complainant in his complaint. By relying onparagraph Nos. 25 and 26 of the decision delivered by the Hon’ble SupremeCourt in the case of Hindustan Construction Company Ltd. & Anr. Vs. Unionof India & Ors.No.10719) dated 27thNovember 2019 he submitted that even if the said arbitration award ischallenged under Section 34 of the Arbitration and Conciliation Act 1996 its binding effect does not gets stayed automatically and it holds the fieldtill it is set aside.10.2)Mr. Ponda further submitted that the whole case put forth bythe complainant has to be appreciated in view of the stringent termsincorporated in the said Agreement. That by reading the clauses ofAgreement it can clearly be gathered that accused were having power tosell the said shares to an entity of their choice. That the clauses mentionedin the Letter of Pledgecannot be ignored and ought to havebeen taken into consideration by the Trial Court at the first place whileissuing process against the accused. He submitted that summoning of anaccused in a criminal case is a serious matter. Criminal law cannot be setinto motion as a matter of course. That the allegations made in thecomplaint even if given face value and taken to be correct in its entirety does not disclose an offence. He submitted that the present complaint filedby the accused is filed for causing harassment to the accused. He13 34 on 26 04 2021 on 27 04 ssm 14 wp127.20gp final.docsubmitted that there is no legal evidence connecting the accused with anycrime much less the offences alleged as the materials are not capable ofbeing converted into legal evidence and therefore the proceedings againstthe accused are also liable to be quashed. He submitted that a perusal ofcomplaint would indicate that the complainant has not made specificallegations against accused Nos.2 to 4 and therefore also the presentcomplaint is not maintainable. In support of these contentions Mr. Pondarelied on the following decisions of the Hon’ble Supreme Court. 1Charanjit Singh Chadha & Ors. Vs. Sudhir Mehra MANU SC 0514 2001 : AIR 2001 SC 3721 2International Advanced Research Centre for Powder Metallurgy andNew Materials& Ors. Vs. Nimra Cerglass TechnicsLtd. &Ors. MANU SC 1063 2015 :1 SCC 348 3Pepsi Foods Ltd. & Ors. Vs. Special Judicial Magistrate & Ors. MANU SC 1090 1998 : AIR 1998 SC 128 4All Cargo MoversPvt. Ltd. & Ors. Vs. Dhanesh Badarmal Jain &Ors. MANU SC 8047 2007 : AIR 2008 SC 247 5Suryalakshmi Cotton Mills Ltd. Vs. Rajvir Industries Ltd. & Ors. MANU SC 7050 2008 : AIR 2008 SC 1683 6M. Mohan Vs. The State represented by the Deputy Superintendentof Police MANU SC 0161 2011 : AIR 2011 SC 1238 7The Superintendent & Remembrancer of Legal Affairs West Bengal14 34 on 26 04 2021 on 27 04 ssm 15 wp127.20gp final.docVs. S.K. Roy MANU SC 0229 1974 : AIR 1974 SC 794 8GHCL Employees Stock Option Trust Vs. India Infoline Ltd. MANU SC 0271 2013 : AIR 2013 SC 1433 9Sushil Sethi & Ors. Vs. The State of Arunachal Pradesh & Ors. MANU SC 0119 2020 : AIR 2020 SC 765 10Suresh Vs. Mahadevappa Shivappa Danannava & Ors. MANU SC 0110 2005 : AIR 2005 SC 1047. 10.3)Mr. Ponda further submitted that it is well settled that everybreach of contract would not give rise to an offence of cheating and only onthose cases breach of contract would amount to cheating where there wasany deception played at the very inception. That if the intention to cheathas developed later on the same cannot amount to cheating. In support ofhis contentions he relied on two decisions of the Hon’ble Supreme Courtviz.Uma Shankar Gopalika Vs. State of Bihar & Ors. MANU SC 1233 2004 :10 SCC 336 andVesa Holdings PrivateLimited & Anr. Vs. State of Kerala & Ors. reported in5 SCC 668 2S.K. Alagh Vs. State of U.P. & Ors. MANU SC 7162 2008 : AIR 2008SC 1731 3R. Kalyani Vs. Janak C. Mehta & Ors. MANU SC 8183 2008 :(2009)1 SCC 516 4Sharon Michael & Ors. Vs. State of Tamil Nadu & Ors.MANU SC 8454 2008 :3 SCC 375 5Keki Hormusji Gharda & Ors. Vs. Mehervan Rustom Irani & Ors. MANU SC 0798 2009 : AIR 2009 SC 2594 :7 scc 475 6Sunil Bharti Mittal Vs. Central Bureau of Investigation MANU SC 0016 2015 : AIR 2015 SC 923 7Shiv Kumar Jatia Vs. State of NCT of Delhi MANU SC 1154 2019 :AIR 2019 SC 4463 :17 SCC 193. 10.5)Two contrary submissions were advanced by the learnedcounsel for the Accused i.e.Company cannot be held liable for the actsof its Directors andDirectors cannot be held responsible for the act ofcompany as the Letter of Pledge dated 7th March 2000 was executed in16 34 on 26 04 2021 on 27 04 ssm 17 wp127.20gp final.docfavour of Accused No.1 company. He inter alia contended that none of theaccused persons herein have committed any offence as alleged by thecomplainant.10.6)He submitted that the present complaint is filed in February 2011 for the alleged offence which took place in the year 2001 andtherefore it is hit by delay. He submitted that before issuing the Orderdated 22nd March 2017 thereby issuing process against the accused thelearned Magistrate did not call for fresh report under Section 202 of Cr.P.C..He therefore prayed that the Petition Nos.348 349 and 357 of2020 filed by the accused be allowed and the Petitions filed by thecomplainant may be dismissed summarily. 11)Per contra Mr. Shukla learned counsel for the complainantvehemently opposed the Petitions filed by the accused. He submitted that in view of the specific allegation of the complainant of cheating ascontemplated under Section 420 of Indian Penal Code in the present case limitation would not apply to it and therefore complaint is not hit by delay.He submitted that the alleged delay by the accused persons in filing thepresent complaint has been properly explained by the witnesses of thecomplainant namely Shri. Bhupendra R. Pitale and Shri. Ramesh S. Pilaniwhile recording their verification statement dated 9th February 2016 andevidence after verification dated 12th July 2016 respectively. He submittedthat the facts in the present case are so complex and interwoven that the17 34 on 26 04 2021 on 27 04 ssm 18 wp127.20gp final.docdishonest intention of the accused can be derived at the time of trial only.That the legitimate prosecution initiated by the complainant should not bescuttled at its inception. He submitted that the accused invoked provisionsof Arbitration by giving notice on 14th August 2001 and from 24th August 2001 to 12th September 2009 sold shares of the complainant companyallegedly in open market only to one single buyer i.e. Doogar andAssociates Ltd. and it cannot be termed as a coincidence. That the accusedNos.2 to 4 herein are also the Directors of the said Doogar and AssociatesLtd.1 SCC 74 : LAWS(SC) 2010 10 13. He submittedthat the Revisional Court has committed an error by not taking intoconsideration the ratio laid down by the Hon’ble Supreme Court in the caseof Iridium India Telecom Ltd.while allowing the RevisionApplication No.1217 filed by the accused No.1 Morgan. Hesubmitted that Morgan is equally responsible for the offence committed byother accused persons as the complainant has also alleged conspiracy. Thatthe Trial Court while issuing process by its Order dated 22nd March 2017has applied Section 34 of the Indian Penal Code and therefore also thepresence of accused No.1 Company at the time of final adjudication of thecomplaint is must. 11.2)Mr. Shukla submitted that the accused invoked Arbitrationclause on 14th August 2001 however claimed and accepted interest on thecomplainant upto 6th August 2001. He submitted that the report underSection 202 of Cr.P.C. filed by the police mentions the said fact of repaymentof interest by the complainant. He therefore submitted that it is thus clearthat all the accused persons had intention to commit act of cheating19 34 on 26 04 2021 on 27 04 ssm 20 wp127.20gp final.docagainst the complainant. He submitted that all the ingredients forcommission of offence under Sections 406 420 read with 120 B or 34 ofthe Indian Penal Code have been incorporated in the complaint by thecomplainant and no fault of whatsoever nature can be found out fordeleting Section 420 of the IPC from it. He submitted that the RevisionalCourt has committed an error in setting aside the Order of issuance ofprocess for the offence punishable under Section 420 read with 34 of theIPC against the accused Nos.2 to 4 by its impugned Orders.He therefore prayed that the Writ Petition Nos.127 to 130 of2020 filed by the complainant be allowed in its entirety and Writ Petitionsfiled by the accused be dismissed summarily. 12)It is to be noted here that most of the contentions and orsubmissions advanced by the learned Senior counsel for the accused recorded hereinabove have been answered by the Hon’ble Supreme Courtin its recent decision in the case of Priti Saraf & Anr. Vs. State of NCT ofDelhi & Anr. in Criminal Appeal No(s). 2921 dated 10th March 2021. The Hon ble Supreme Court after taking into consideration itsvarious decisions in the field has held that it being a settled principle oflaw that to exercise powers under Section 482 of Cr.P.C. the complaint inits entirety shall have to be examined on the basis of the allegation made inthe complaint FIR charge sheet and the High Court at that stage was notunder an obligation to go into the matter or examined its correctness. That 20 34 on 26 04 2021 on 27 04 ssm 21 wp127.20gp final.docwhatever appears on the face of the complaint FIR charge sheet shall betaken into consideration without any critical examination of the same. Theoffence ought to appear ex facie on the complaint FIR charge sheet andother documentary evidence if any on record. It is further held that it isthus settled that the exercise of inherent power of the High Court is anextra ordinary power which has to be exercised with a great care andcircumspection in deciding whether the case is rarest of rare case to scuttlethe prosecution at its inception. That in the matter of exercise of inherentpower by the High Court the only requirement is to see whethercontinuance of the proceedings would be a total abuse of the process of theCourt. The Cr.P.C. contains a detailed procedure for investigation framingof charge and trial and in the event when the High Court is desirous ofputting a halt to the known procedure of law it must use propercircumspection with great care and caution to interfere in thecomplaint FIR charge sheet in exercise of its inherent jurisdiction. TheHon ble Supreme Court has further observed that we would like to addthat whether the allegations in the complaint are otherwise correct or nothas to be decided on a basis of the evidence to be led during the course oftrial. Simply because there is a remedy provided for breach of contract orarbitral proceedings initiated at the instance of the appellants that does notby itself clothe the court to come to a conclusion that Civil remedy is theonly remedy and the initiation of Criminal proceedings in any manner will21 34 on 26 04 2021 on 27 04 ssm 22 wp127.20gp final.docbe an abuse of the process of the Court for exercising inherent powers ofthe High Court under Section 482 Cr.P.C. for quashing of such proceedings.It is further held that in fact many a times offence of cheating iscommitted in the course of commercial transactions and illustrations havebeen set out under Sections 415 418 and 420 IPC. That so far as initiationof arbitral proceedings is concerned there is no correlation with theCriminal proceedings.13)The Hon’ble Supreme Court has thus made it clear that in fact many a times offence of cheating is committed in the course of commercialtransactions. That initiation of arbitral proceedings has no correlation withthe criminal proceedings. In view thereof the contentions raised by thelearned Senior Counsel and recorded in para Nos.(10)(10.2) and(10.3) hereinabove do not hold any substance in it as the arbitralproceedings initiated by accused has no bearing on the present criminalcase.The criminal complaint filed by the complainant therefore hasto be considered independently.14)It is the settled position of law that at the stage of issuance ofprocess or a challenge to an Order of issuance of process the Court at thisjuncture would not consider the defence of the accused. That ordinarily defence of an accused although appears to be plausible should not be takeninto consideration for exercise of the said jurisdiction. That the High Court22 34 on 26 04 2021 on 27 04 ssm 23 wp127.20gp final.docat that stage would not ordinarily enter into a disputed question of fact.That the Order of Magistrate summoning the accused must reflect that hehas applied his mind to the facts of the case and the law applicable thereto.He has to examine the nature of the allegations made in the complaint andthe evidence both oral and documentary in support thereof.14.1)The complainant has filed a detailed complaint giving all thenecessary facts which constitutes an offence of criminal breach of trustunder Section 406 of IPC and cheating under Section 420 of IPC. It is an admitted fact on record that the complainant availedICD facility from the accused No.1 to the tune of Rs.50 lakhs and amongstother various documents also executed a Letter of Pledgedated 7th March 2000 the complainant pledged 15 lakhsequity shares in demat form owned by it in favour of Morgan. The accusedNo.1 Morgan issued notice dated 3rd May 2000 to complainant asking it topledge additional shares as the value of pledged shares had decreased toRs.1 24 50 000 from the agreed security cover i.e. 200% of the ICDamount. At that relevant time the value of shares was Rs.8.30 to 8.50 pershare. The complainant faced acute financial hardship due to globalrecession and could not repay the ICD and therefore on its due date i.e. on5th June 2000 asked Morgan to recover ICD dues by selling the pledgedshares and remitting the balance sale proceeds to the complainant. The23 34 on 26 04 2021 on 27 04 ssm 24 wp127.20gp final.docrecord clearly indicates that by a letter communication dated 14th August 2001 the complainant informed Morgan thereby proposing to repayinitially Rs.25 lakhs in five equal monthly installments at Rs.5 lakhs in cashstarting from August 2001. It was also informed to Morgan that the firstinstallment of Rs.5 lakhs will be paid to it on or before 25th August 2001.Despite receipt of the said communication dated 14th August 2001 by theaccused the accused sold the pledged shares of complainant via NSE from24th August 2001 to 12th September 2001 for an amount of Rs.24 67 631 .It is the precise case of the complainant that the accused with dishonestintention misappropriated and converted for its illegal gains and sold thesaid shares when the price of the share was at its minimal in the market.The said shares were sold at the closing hours on those relevant days to theaccused No.1 company’s sister concern namely Doogar and Associates Ltd..The said Doogar and Associates Ltd. subsequently changed its name toMorgan Ventures Ltd. in the year 2004. That the Directors of both the saidcompanies are the same i.e. accused Nos.2 to 4 herein. The accused did notsell shares of complainant company either on 3rd May 2000 or on 5th June 2000 when the price of the said shares were much more higher and wassufficient to square off the ICD amount accepted by the complainant. 14.2)The Senior Inspector of Police Andheri Police Station infurtherance of the Order passed under Section 202 of Cr.P.C. by the learnedMagistrate after conducting investigation into the matter has submitted a24 34 on 26 04 2021 on 27 04 ssm 25 wp127.20gp final.docreport dated 16th March 2012 to it. In the said report he has recorded acategorical finding that the accused have sold the said shares to their ownsister concern for a very minimal rate and subsequently the said Doogar andAssociates Ltd. sold the said shares in open market at much higher price. Itwas revealed to him that the accused have committed criminal breach oftrust and cheating of complainant. 14.3)It is to be further noted here that the complainant in complaintand its witnesses namely Shri. Bhupendra R. Pitale in his verificationstatement dated 9th February 2016 and Mr. Ramesh Pilani in his evidenceafter verification dated 12th July 2016 have explained delay in lodging thepresent complaint. The learned counsel for the complainant submittedthat as an offence under Section 420 of IPC has been alleged against theaccused there is no question of application of limitation in the presentcomplaint. I find substance in the same. 14.4)The facts of the present case as noted hereinabove leave nomanner of doubt that the accused have committed criminal breach of trustof the complainant and have deceived it thereby committing an act ofcheating. As a matter of fact the complainant has made out a strong primafacie case against the accused for issuance of process. Taking intoconsideration the aforestated facts it clearly appears to this Court that thelearned Magistrate has not committed any error while passing theimpugned Order dated 22nd March 2017 below Exh 1 in the said complaint.25 34 on 26 04 2021 on 27 04 ssm 26 wp127.20gp final.doc15)As far as the contention of learned counsel for the accused that before passing Order dated 23rd March 2017 below Exh 1 thereby issuingprocess against the accused the learned Magistrate did not call for freshreport under Section 202 of Cr.P.C. is concerned it is to be noted here that by an Order dated 6th August 2011 the predecessor in title of the presentMagistrate had directed the Police Inspector of Andheri Police station Mumbai to make an inquiry into the matter under Section 202 of Cr.P.C. andto submit report in that behalf. The record indicates that accordingly on16th March 2012 the Senior Police Inspector Andheri Police Station Mumbai has submitted an Inquiry Report before the learned Magistrate. Asper the inquiry conducted by the concerned police it was revealed that theaccused in connivance with each other and in conspiracy committedcriminal breach of trust of the complainant and sold its shares to their ownCompany namely Doogar and Associates Ltd. and particularly when theprice of the shares of complainant Company were fetching very low priceand subsequently the said Doogar and Associates Ltd. further sold it tohigher price in market. As the report under Section 202 of Cr.P.C. hasalready been submitted by the police on record it was and is not at allnecessary for the learned Magistrate to again call for it afresh. The factsinquired into on an earlier occasion have not at all changed and are thesame till today. On an earlier occasion by an Order dated 16th January 2016 the Revisional Court had set aside the Order of Magistrate and26 34 on 26 04 2021 on 27 04 ssm 27 wp127.20gp final.docremanded the complaint back only on the ground that there was technicalerror in recording verification statement under Section 200 of Cr.P.C. of thecomplainant and not for any other reason. It thus appears to this Courtthat there is no technical lapse or illegality committed by the Magistratewhile issuing process against accused by its present Order dated 22ndMarch 2017. This Court therefore finds that there is no substance in theaforenoted contention of the learned counsel for the accused.16)As far as the contention of the learned counsel for the accusedthat the complainant is foisting vicarious liability upon the accused No.1 isconcerned the pleadings in the complaint prima facie discloses that thereis no mention of vicarious liability of Accused No.1 Company in it. It is thedefence of Accused No.1 that ‘vicarious liability’ is being foisted upon it which the learned counsel wants this Court to test it at the stage of issuanceof process. The same is contrary to the settled principles of law. It is wellsettled that at the time of issuance of process the Magistrate is required toconduct an inquiry for the limited purpose of finding out whether a primafacie case for issuance of process has been made out and it is limited only tothe ascertainment of the truth or falsehood of the allegations made in thecomplaint. 17)The aforenoted contention in paragraph No.(10.5) cannot beaccepted and has to be rejected at its threshold. It is the settled principle oflaw that a Company is a juristic person and it can sue or can be sued. No27 34 on 26 04 2021 on 27 04 ssm 28 wp127.20gp final.docdoubt a corporate entity is an artificial person which acts through itsofficers Directors Managing Director Chairman etc.. It’s affairs aregoverned by or conducted by its Directors. If the offence alleged againstthe accused is proved then the accused Directors will have to be sentencedas the Company though being a juristic person cannot be sentenced withcorporal punishment.18)The Hon’ble Apex Court in Iridium India Telecom Ltd.while considering the issue of criminal liability of a Company Corporationin para Nos.63 to 66 has held as under : 63. From the above it becomes evident that acorporation is virtually in the same position as any individual andmay be convicted of common law as well as statutory offencesincluding those requiring mens rea. The criminal liability of acorporation would arise when an offence is committed in relationto the business of the corporation by a person or body of personsin control of its affairs. In such circumstances it would benecessary to ascertain that the degree and control of the person orbody of persons is so intense that a corporation may be said tothink and act through the person or the body of persons. Theposition of law on this issue in Canada is almost the same. Mensrea is attributed to corporations on the principle of “alter ego” ofthe company.64. So far as India is concerned the legal position has beenclearly stated by the Constitution Bench judgment of this Court inStandard Chartered Bank v. Directorate of Enforcement4SCC 530 : 2005 SCC961]. On a detailed consideration of28 34 on 26 04 2021 on 27 04 ssm 29 wp127.20gp final.docthe entire body of case laws in this country as well as otherjurisdictions it has been observed as follows:4 SCC 530 : 2005 SCC961] SCC pp. 548 50 paras27 28 & 30 32)"27.In the case of Penal Code offences forexample under Section 420 of the Penal Code for cheatingand dishonestly inducing delivery of property thepunishment prescribed is imprisonment of eitherdescription for a term which may extend to seven yearsand shall also be liable to fine and for the offence underSection 417 that is simple cheating the punishmentprescribed is imprisonment of either description for a termwhich may extend to one year or with fine or with both. Ifthe appellants plea is accepted then for the offence underSection 417 IPC which is an offence of minor nature acompany could be prosecuted and punished with fine29 34 on 26 04 2021 on 27 04 ssm 30 wp127.20gp final.docwhereas for the offence under Section 420 which is anaggravated form of cheating by which the victim isdishonestly induced to deliver property the companycannot be prosecuted as there is a mandatory sentence ofimprisonment. 28. So also there are several other offences in thePenal Code which describe offences of serious naturewhereunder a corporate body also may be found guilty and the punishment prescribed is mandatory custodialsentence. There are a series of other offences undervarious statutes where the accused are also liable to bepunished with custodial sentence and fine. 30. As the company cannot be sentenced toimprisonment the court has to resort to punishment ofimposition of fine which is also a prescribed punishment.As per the scheme of various enactments and also thePenal Code mandatory custodial sentence is prescribed forgraver offences. If the appellants plea is accepted nocompany or corporate bodies could be prosecuted for thegraver offences whereas they could be prosecuted forminor offences as the sentence prescribed therein iscustodial sentence or fine. ...31. As the company cannot be sentenced toimprisonment the court cannot impose that punishment but when imprisonment and fine is the prescribedpunishment the court can impose the punishment of finewhich could be enforced against the company. Such adiscretion is to be read into the section so far as the juristicperson is concerned. Of course the court cannot exercise30 34 on 26 04 2021 on 27 04 ssm 31 wp127.20gp final.docthe same discretion as regards a natural person. Then thecourt would not be passing the sentence in accordancewith law. As regards company the court can alwaysimpose a sentence of fine and the sentence ofimprisonment can be ignored as it is impossible to becarried out in respect of a company. This appears to be theintention of the legislature and we find no difficulty inconstruing the statute in such a way. We do not think thatthere is a blanket immunity for any company from anyprosecution for serious offences merely because theprosecution would ultimately entail a sentence ofmandatory imprisonment. The corporate bodies such as afirm or company undertake a series of activities that affectthe life liberty and property of the citizens. Large scalefinancial irregularities are done by various corporations.The corporate vehicle now occupies such a large portion ofthe industrial commercial and sociological sectors thatamenability of the corporation to a criminal law is essentialto have a peaceful society with stable economy. 32. We hold that there is no immunity to thecompanies from prosecution merely because the prosecutionis in respect of offences for which the punishment prescribedis mandatory imprisonmentv. Velliappa Textiles Ltd.11SCC 405 : 2004 SCC1214] on this point and answer thereference accordingly. Various other contentions have beenurged in all appeals including this appeal they be posted forhearing before an appropriate Bench." 31 34 on 26 04 2021 on 27 04 ssm 32 wp127.20gp final.doc66. These observations leave no manner of doubt that acompany corporation cannot escape liability for a criminal offencemerely because the punishment prescribed is that of imprisonmentand fine. We are of the considered opinion that in view of theaforesaid judgment of this Court the conclusion reached by theHigh Court that the respondent could not have the necessary mensrea is clearly erroneous.” 19)After applying a ratio laid down by the Hon’ble Supreme Courtin the case of Iridium India Telecom Ltd.it is clear that theaccused No.1 Morgan is a necessary party for proper adjudication of thecomplaint. It is to be noted here that the Letter of Pledgeis necessary for properadjudication of the present complaint. The contention that the accusedNo.1 is being foisted with vicarious liability is the defence and a speciousplea raised by the said accused. The accused No.1 will have to prove thesaid defence at the time of trial by leading cogent and plausible evidence inthat behalf.The aforestated deliberation leads to draw an irresistibleconclusion that the accused No.1 company is a necessary and relevantparty to the said complaint and it cannot be dropped from the presentproceedings at its inception. 32 34 on 26 04 2021 on 27 04 ssm 33 wp127.20gp final.doc20That the accused with dishonest intention have committedcriminal breach of trust deceived the complainant and have committed theact of cheating against it. In view thereof the complainant succeeds. The impugned Orders dated 2nd December 2019 passed inCriminal Revision Application Nos.1217 1617 1617and 1617 filed by the accused are quashed and set aside and theOrder dated 22nd March 2017 passed by the learned MetropolitanMagistrate Railway Mobile Court Andheri Mumbai below Exh 1 in CCNo.56 SW 2011 is upheld and restored to the file. However in view of thestatement made by the complainant in the present proceedings that thecomplainant hereinafter will not pursue application of Section 15 HA of theSEBI Act in the said complaint Section 15 HA of SEBI Act is dropped fromthe Order dated 22nd March 2017 passed below Exh 1 in CCNo.56 SW 2011. The Order dated 22nd March 2017 passed by the learnedMagistrate is modified to that extent only. 21)In view of the above Writ Petition Nos.1220 128 of2020 1220 and 1320 filed by the complainant are allowed.Writ Petition Nos.3420 3420 and 3520 filed by theaccused are accordingly dismissed.In view of disposal of Writ Petition Nos.127 to 1320filed by the complainant Interim Application Nos.220 to 2220 filedtherein do not survive and are accordingly disposed off.33 34 on 26 04 2021 on 27 04 ssm 34 wp127.20gp final.doc22)The present complaint filed in the month of February 2011 bythe complainant is pending on the file of learned Metropolitan Magistrate Railway Mobile Court Andheri Mumbai for last more than 10 years. Inview thereof learned Magistrate seized of the said complaint is directed toexpedite hearing of the said complaint and to make an endeavour todispose off the same within a period of one year from the date of receipt ofpresent Order. It is needless to mention that the period during which thesmooth functioning of the concerned Court is paralyzed or affected due tothe present pandemic situation will be excluded from computation of thesaid period of one year. (A.S. GADKARI J.)34 34

Any allottee, assignee or transferee would be having the same rights and obligations as the Developer and bound by the terms and conditions, as applicable to the Developer: High court of Allahabad

If a developer has entered into certain agreements, then the subsequent transferees of a project which was developed by the developer and bound by the rules and obligations that a developer has entered into. Neither the transferees nor the developer can deviate from a sanctioned building plan and must stick to what was sanctioned. This was decreed by the two judge bench comprising of Hon’ble Justice Ritu Raj Awasthi and Hon’ble Justice Dinesh Kumar Singh in the case of Lucknow Omaxe City Residents & Allottees Association & 2 Ors Vs. State Of U.P. Thru.Prin.Secy.,Housing & Urban Planning Devel [MISC. BENCH No. – 9591 of 2018]  The brief facts of the case are, the government had issued an order in 1996 that if any project was being developed in the vicinity of any land belonging to the Gram Samaj, then the developer must leave such lands and also provide an approach road. It was also provided that if providing approach road was not feasible at all, then the value of such parcels of land belonging to Gram Samaj be charged from the Developer. The developer on 14th December 2006, agreed to provide an equal amount for land in exchange for the gram samaj land and provide an approached road for such an exchanged land. The Lucknow nagar Nigam approved the plan of the developer in exchange for 18 meter wide approach road. However, it was observed that a boundary wall was constructed by the developer on the approach road. The petitioners contended that the developer of the property had promised that the property would be secluded by boundary walls with only one entrance with the safety of a closed township. Since this boundary wall obstructed the Lucknow nagar nigam from accessing the exchanged land, they demolished the wall. Aggrieved by this, the present petition is filed by the petitioners. The learned counsel for the petitioners submitted that there is an alternative road to access such a land and the approach road was meant only for the residents of Omaxe City. It was further submitted that the use of the road by general public would affect the privacy and safety of the residents of omaxe city. It was further submitted that the Government Order dated 25th January, 1996 provides only a safeguard for the land offered in exchange of the Gram Samaj land as it should not be a land locked. It never obligated the builder or any person, exchanging the land to provide a road despite there being a pre-existing public road leading to the land given in exchange of Gram Samaj land. It was further submitted that since the petitioners were promised a gated colony/housing project/township and providing access to the Lucknow Nagar Nigam from 18 meters wide road to the proposed project of the Lucknow Nagar Nigam would violate the fundamental promise made by the Developer of exclusive a gated township. However, the counsel for the respondent mentioned that the conditions of exchange of the land specifically provided that the Developer would ensure an approach road to the land offered in exchange. The land of the Gram Samaj was exchanged under this policy and, therefore, neither the Developer nor the petitioner no. 1 or its members, who are assignee/transferee/successor of the Developer can plead anything contrary to this. The learned counsel for the developer (respondent no.6) submitted that the exchange was not possible if the Developer did not agree with providing 18 meters wide approach road to the land. he learned counsel has further submitted that the Developer is bound by the sanctioned building plan, the condition of ‘no objection certificate’ and the condition of exchange. After listening to the contentions of all the parties, the court held that the The counsel for the Developer has specifically stated that they had agreed to provide 18 meters wide approach road leading to the land of the Lucknow Nagar Nigam and, it was a condition precedent for exchange, otherwise exchange was not possible. Relying on Satya Pal Anand Vs. State of Madhya Pradesh, (2016) 10 SCC 767 , the court held that any allottee, assignee or transferee would be having the same rights and obligations as the Developer and bound by the terms and conditions, as applicable to the Developer. In the current case, the cpurt decreed that since the developer was bound by the condition, the resident petitioners cannot challenge such a condition against the respondents and must seek remedy against the developer for false claims and dismissed the petition.

Court No. 1 Case : MISC. BENCH No. 95918 Petitioner : Lucknow Omaxe City Residents & Allottees Association 2 Ors Respondent : State Of U.P. Thru.Prin.Secy. Housing & Urban Counsel for Petitioner : Mudit Agarwal Nidhi Agarwal Counsel for Respondent : C.S.C. Anilesh Tiwari Ashish Chaturvedi Dr V.K.Singh Kuldeep Pati Tripathi Namit Sharma Ratnesh Chandra Shailendra Singh Chauhan Hon ble Ritu Raj Awasthi J Hon ble Dinesh Kumar Singh J Delivered by Hon ble Dinesh Kumar Singh J 1. The present writ petition has been filed by Lucknow Omaxe City Residents & Allottees Association a Society registered under the Societies Registration Act 1860and its two office bearers who are also the residents of Housing Complex developed by M s Omaxe Limited respondent no 6 named as Omaxe City and its subsidiary companiesthat the land of Gram Samaj was not the land of public utility and for the land offered in exchange of the land of Gram Samaj an approach road was proposed which would be available for the exchanged land 4. The land of Gram Samaj subsequently vested in Lucknow Nagar Nigam Lucknow after issuance of the relevant notification by the State Government under Section 3 of the U. P. Municipal Corporation Act 1959as is provided under Section 126 of the Act 1959. Initially in the layout plan submitted by the Developer they proposed 12 meters wide approach road. The Nagar Nigam granted no objection certificate for the housing project proposed to be developed by the Developer on 24th November 2002. In the said no objection certificate it was specifically provided that instead of 12 meters wide approach road 18 meters wide approach road would be constructed. It was further provided that a case regarding exchange of Gram Samaj land to the extent of 24566.62 square meter was pending before the Municipal Corporation Lucknow and therefore till the final decision was taken on the aforesaid subject the Developer would be allowed to carry out the development work in the proposed layout plan. The affidavits dated 13th April 2006 on behalf of the Developer were submitted stating therein that the Developer would provide approach road to the land given in exchange to the Lucknow Nagar Nigam in lieu of the land of Gram Samaj. In pursuance of the aforesaid no objection certificate submitted by the Developer a revised layout plan was submitted by the Developer before the Lucknow Development Authority providing therein 18 meters approach road to the land offered to the Municipal Corporation in exchange of the Gram Samaj 5. The Lucknow Development Authority approved the layout plan for the housing project of Omaxe City vide Permit No.208280 with certain conditions. One of the conditions i.e. condition no. 6 provided that the Developer should abide by all the conditions mentioned in the no objection certificate given by the Lucknow Nagar Nigam. 6. A perusal of sanctioned layout plan of the housing project Omaxe City would reveal that at the end of 24 meters wide road connecting to Amar Shaheed Path 18 meters wide road was provided towards the eastern side running parallel to the side of primary school and thereafter inter college towards the east of the primary school. This road runs parallel to the land given out by the Developer to the Lucknow Nagar Nigam as a measure of exchange value of the land belonging to erstwhile Gram Samaj Aurangabad Khalsa. This 18 meters wide road provides approach road to the educational institutions hospital and commercial establishments as well. The Lucknow Nagar Nigam has proposed construction of housing project on the area given by the Developer in exchange of the Gram Samaj 7. It appears that the Developer constructed the boundary wall on the approach road blocking access to the chunk of land now in possession of the Lucknow Nagar Nigam which was given in exchange of the Gram Samaj land by the Developer. The Lucknow Nagar Nigam has planned a colony for lower income group middle income group and high income group on the said land. The development plan under Section 14 of the U.P. Urban Planning and Development Act 1973has been sanctioned on 21st March 2017. A building plan has also been sanctioned by the Lucknow Development Authority on the same day i.e. 21st March 2017. As per the sanctioned building plan for the land of the Lucknow Nagar Nigam a gate measuring 22.460 meters wide from 18 meters wide approach road on the land of the Lucknow Nagar Nigam is provided. 8. As per the petitioners the Developer aggressively marketed the project Omaxe City in the year 2005 2006 and issued several advertisements invited booking from the prospective home buyers offering a closed township with a boundary wall running around it with only one main entrance. The home buyers who bought the flats around 750) got attracted to the facilities offered by the Developer besides safety and of a closed township. The Developer offered plots villas and residential houses in the said township and the members of the petitioner no.1 bought the plots villas and houses. The Lucknow Nagar Nigam started developing its project for construction of LIG MIG and HIG flatson the land which it was given by Developer in exchange of the Gram Samaj land. Finding 18 meters wide approach road leading to the land of the Lucknow Nagar Nigam having been closed by constructing a boundary wall on 18th March 2017 a portion of 25 meters wide boundary wall was demolished by the Lucknow Nagar Nigam. However the boundary wall which was demolished by the Lucknow Nagar Nigam was re constructed by petitioner no.1 on the intervention of the authorities and the police. 9. Aggrieved by the demolition of the boundary wall by the Lucknow Nagar Nigam the petitioners have filed the present writ petition with the following reliefs: i) Issue a writ order or direction in the nature of mandamus directing the respondent No. 2 not to break the boundary wall of the Omaxe City township and create Entry and or exit for the residential project being developed on its land in village Aurangabad Khalsa between the Omaxe City Township and SGPGI through the Omaxe City township ii) Such other further relief as may be deemed to be just and appropriate in the facts and circumstances of the case may also be granted in favour of the petitioners as against the respondents iii) Costs...... against the respondents 10. Heard Mr. J.N. Mathur learned Senior Advocate assisted by Mr Mudit Agarwal learned counsel for the petitioners Mr. L.P. Mishra assisted by Mr. Namit Sharma learned counsel on behalf of the opposite party no.2 Nagar Nigam Mr. Ratnesh Chandra learned counsel for opposite party no. 3 Lucknow Development Authority learned standing counsel for opposite parties no. 1 4 and 5 and Mr N.K. Seth learned Senior Advocate assisted by Mr. Ashish Chaturvedi learned counsel for the opposite party no.6 Judgment reserved. 11. Shri J.N. Mathur learned Senior Counsel appearing for the petitioners has submitted that there is already an approach road leading to the land of the Lucknow Nagar Nigam. This approach connects the road below Shaheed Path. It is submitted that the 18 meters wide approach road from 24 meters wide road was made only for the residents of the petitioners society which is a gated community. It is not a thoroughfare. It is further submitted that if the 18 meters wide road is allowed to be used by the Lucknow Nagar Nigam or the residents of the proposed project of the Lucknow Nagar Nigam privacy of the petitioner no. 1’s members shall be affected and it would be against the building and layout plans sanctioned for construction of the housing project Omaxe City . It is further submitted that at present 30 feet wide public road which directly connects to the land of the Lucknow Nagar Nigam is being used for transporting construction material to the side of the Lucknow Nagar Nigam. It is further submitted that the Government Order dated 25th January 1996 provides only a safeguard for the land offered in exchange of the Gram Samaj land as it should not be a land locked. It never obligated the builder or any person exchanging the land to provide a road despite there being a pre existing public road leading to the land given in exchange of Gram Samaj land. In respect of undertaking given by the Developer in the proceedings under Section 161 of the Act 1950 it has been submitted that the said undertaking was given without disclosing the same to the members of the petitioner no.1 and such an undertaking would be in violation of the contract entered into between the members of the petitioner no 1 and the Developer and it amounts to an illegal and void undertaking. It is further submitted that providing access to the residents in the proposed project of the Lucknow Nagar Nigam through 18 meters wide road approaching to the “Omaxe City” would destroy the concept of a gated township and the roads of the colony would become a thoroughfare. It is further submitted that an agreement or undertaking of the Developer to the Lucknow Nagar Nigam which affects the vested right of the members of the petitioner no. 1 is not binding on them and it would be void as the petitioner no. 1 and its members were not party to such undertaking or any agreement which was entered into between the Lucknow Nagar Nigam and the Developer. It is further submitted that since the petitioners were promised a gated colony housing project township and providing access to the Lucknow Nagar Nigam from 18 meters wide road to the proposed project of the Lucknow Nagar Nigam would violate the fundamental promise made by the Developer of exclusive a gated 12. On the other hand Mr. L.P. Mishra learned counsel for the Lucknow Nagar Nigam has submitted that the conditions of exchange of the land specifically provided that the Developer would ensure an approach road to the land offered in exchange. The land of the Gram Samaj was exchanged under this policy and therefore neither the Developer nor the petitioner no. 1 or its members who are assignee transferee successor of the Developer can plead anything contrary to the policy decision dated 25th January 1996. It is further submitted that the petitioners are bound by the terms and conditions under which the housing project of the Omaxe City was sanctioned and the land was given in exchange. The transferee assignee successor steps into shoes of the predecessor and is entitled and bound by the rights and obligations of the predecessor in interest. When 18 meters wide approach road was agreed by the Developer and it was a condition for the exchange as well as one of the conditions of no objection certificate issued by the Lucknow Nagar Nigam then the Developer or its assignee transferee successor cannot wriggle out of this obligation. The Developer as well as its transferee assignee or successor is under obligation to maintain 24 meters wide approach road from the Shaheed Path and thereafter 18 meters approach road leading to the land of the Lucknow Nagar Nigam Lucknow a condition of exchange as mentioned in the sanctioned plan free from encroachment so that the Lucknow Nagar Nigam has access to its land without any obstacle. It is further submitted that under Section 14 of the Act 1973 the terms and conditions of the sanctioned layout plan are binding on the Developer as well as assignee transferee successor which specifically provided 18 meters wide approach road running parallel to the land given by the Lucknow Nagar Nigam in exchange and it was their duty to maintain 24 meters wide road and thereafter 18 meters wide approach road till such housing project of the Developer is handed over to the Lucknow Nagar Nigam. After handing over the said road it would be the responsibility of the Lucknow Nagar Nigam to maintain the same. It is also submitted that 18 meters wide approach road from 24 meters wide approach road leads to the public utility facilities such as the educational institution hospital market and other commercial establishments earmarked as such in the sanctioned plan and therefore the submission made on behalf of the petitioners that the 18 meters wide approach road is exclusively meant for use of residents of the housing project of the Omaxe City gets falsified. The learned counsel for the Lucknow Nagar Nigam has submitted that the Nagar Nigam will construct such a gate where boundary wall on 18 meters wide approach road is existing blocking access to its land so that the area of Omaxe City and the residential complex constructed by the Lucknow Nagar Nigam are separated. The petitioners or the Developer should not have any objection for constructing the gate as proposed by the Lucknow Nagar Nigam which is also shown in the sanctioned building plan of the Lucknow Nagar Nigam 13. Mr. N. K. Seth learned Senior Counsel appearing for the Developer besides raising a preliminary objection regarding maintainability of the writ petition against a private person i.e respondent no. 6 has submitted that providing 18 meters wide approach road to the Lucknow Nagar Nigam from 24 meters wide approach road was a pre condition of exchange of land of Gram Samaj and the Developer was bound to provide 18 meters wide approach road leading to the land of the Lucknow Nagar Nigam. The learned counsel has further submitted that if the Developer did not agree with providing 18 meters wide approach road to the land of the Lucknow Nagar Nigam the exchange was not possible. The learned counsel has further submitted that the boundary wall was subsequently constructed so that the encroachment could be avoided The learned counsel has further submitted that the residents or the petitioners are not correct to say that the 18 meters wide approach road was exclusively meant for their use. The learned counsel has further submitted that the Developer is bound by the sanctioned building plan the condition of no objection certificate and the condition of exchange. The learned counsel has further submitted that the petitioners cannot claim a better right or title than of the Developer. The learned counsel has further submitted that in the layout plan in respect of the housing complex Omaxe City condition no. 6 specifically provided that the Developer would be bound by the conditions as mentioned in the no objection certificate issued by the Municipal Corporation Lucknow. The allottees petitioners being fully aware of the conditions of the sanctioned plan had entered into the agreement after due verification of all facts. The allotment letter sale deed etc. specifically mentioned that the allottees had confirmed that they had seen and understood the tentative plans designs and specifications of the project and they agreed to the same. The Developer has developed and completed the housing project in accordance with the sanctioned plans and completion certificate dated 21st April 2010 was issued in respect of Phase I and a separate completion certificate dated 24th April 2010 was issued in respect of Phase II by the Lucknow Development Authority. The learned counsel has further submitted that the petitioners have filed Writ Petition No.1366of 2015 before this Court challenging the issuance of completion certificates as mentioned above and for issuance of a direction to the Developer to complete development work of the housing project as per the bylaws and the sanctioned plan. The learned counsel has therefore submitted that once the petitioners have come before this Court asking a direction for completion of the housing project in accordance with the sanctioned plan they cannot in the present petition be allowed to say that they are not bound by the sanctioned plan or they were not aware of the sanctioned plan. The learned counsel has further submitted that since no effective relief has been sought against the respondent no. 6 Developer the writ petition against the respondent no. 6 is liable to be dismissed. The subject matter of the writ petition pertains to the contractual obligations of the parties therefore the writ petition is liable to be dismissed. 14. We have considered the submissions advanced by the learned counsel appearing for the parties 15. Under the policy decision dated 25th January 1996 under which exchange of the land was permitted it was provided that order of exchange would be passed only after the Developer agreed to provide approach road to the land offered in exchange of Gram Samaj land The Developer had agreed to provide 18 meters wide approach road from the 24 meters road running parallel to the land given to the Nagar Nigam in exchange of the Gram Samaj land. The sanctioned layout plan of the Developer regarding the housing project namely Omaxe City also would indicate that 18 meters wide approach road from 24 meters road running parallel to the land of the Lucknow Nagar Nigam was provided. In the sanctioned plan of the Lucknow Nagar Nigam for its housing project on the exchanged land 18 meters wide approach road is proposed. The counsel for the Developer has specifically stated that they had agreed to provide 18 meters wide approach road leading to the land of the Lucknow Nagar Nigam and it was a condition precedent for exchange otherwise exchange was not possible. With respect to the boundary wall constructed over the 18 meters wide approach road blocking access to the land of Lucknow Nagar Nigam it has been submitted that the boundary wall was reconstructed only for a purpose to protect it from encroachment but it was never meant that the Lucknow Nagar Nigam would not be provided access through 18 meters wide approach road. 16. It is well settled that any allottee assignee or transferee would be having the same rights and obligations as the Developer and bound by the terms and conditions as applicable to the Developer. The Supreme Court in the case of Satya Pal Anand Vs. State of Madhya Pradesh 2016) 10 SCC 767 in paragraph 31 has held as under: 31. The aforementioned reported decision has noted the subtle distinction between ultra vires act of the statutory authority and a case of a simple infraction of the procedural Rule. The question whether the Society was competent to unilaterally cancel the allotment of a plot given to its member and to cancel the membership of such member due to default committed by the member is within the purview of the business of the Society. Any cause of action in that regard must be adjudicated by the procedure prescribed in that behalf. It is not open to presume that the Society had no authority in law to take a decision in that behalf. The right of the appellant qua the plot of land would obviously be subject to the final outcome of such action. The appellant being the legal representative of the original allottee cannot claim any right higher than that of his predecessor qua the Housing Society which is the final authority to decide on the issue of continuation of membership of its member. The right of the member to remain in occupation of the plot allotted by the Society would be entirely dependent on 17. There is sanctity to the sanctioned building plan. Neither the Developer nor its allottees assignees or transferees are entitled to deviate from the sanctioned building plan. The Supreme Court in the case of R.K. Mittal and others Vs. State of U.P. and others 2 SCC 232 has held in paragraphs 56 58 68 and 72 as under: 56. The running of a bank or a commercial business by a company in the residential sector is certainly not permissible. In fact it is in patent violation of the Master Plan Regulations and the provisions of the Act. We see no power vested in the Development Authority to permit such user and ignore the misuse for such a long period 58. The conduct of the authorities prior to institution of the writ petitions in the High Court showed uncertainty and wavering of mind in its decision making processes In fact it was expected of the Development Authority to take a firm and final decision and put at rest the unnecessary controversy raised by its proposal. However once the writ petitions were filed thereafter the stand of the Development Authority has been consistent and unambiguous. In the counter affidavit filed in this Court it has been stated that even in case of grant of permission to the abovestated two banks no extension was granted and in fact show cause notices have been issued to all the banks in the residential sector to wind up their activities and move out of the residential sector. It is the definite case of the Development Authority that banking activity is a commercial activity and therefore cannot be carried on in the residential sector more particularly on the plots in question. In regard to Sector 19 a specific averment has been made in the affidavit of the Development Authority that the land use is residential alone and is neither commercial nor mixed. As per the Master Plan its primary use is “residential” where plots are planned for residential purpose alone. It is therefore abundantly clear from the pleadings on record that commercial activity of any kind in the residential sector is impermissible. These pleadings are in conformity with the statutory provisions and the Master Plan 68. The Master Plan and the zonal plan specify the user as residential and therefore these plots cannot be used for any other purpose. The plans have a binding effect in law. If the scheme master plan is being nullified by arbitrary acts and in excess and derogation of the power of the Development Authority under law the Court will intervene and would direct such authorities to take appropriate action and wherever necessary even quash the orders of the public authorities 72. From the above dictum of this Court it is clear that environmental impact convenience of the residents and ecological impact are relevant considerations for the courts while deciding such an issue. The law imposes an obligation upon the Development Authority to strictly adhere to the plan regulations and the provisions of the Act. Thus it cannot ignore its fundamental duty by doing acts impermissible in law. There is not even an iota of reason stated in the affidavits filed on behalf of the Development Authority as to why the public notice had been issued without amending the relevant provisions that too without following the procedure prescribed under the law 18. The similar view has been taken in the case of Machavarapu Srinivasa Rao and another Vs. Vijavawada Guntur Tenali Mangalagiri Urban Development Authority and others 12 SCC 154 in paragraph 20 which is extracted herein below: 20. An analysis of the abovenoted provisions shows that once the master plan or the zonal development plan is approved by the State Government no one including the State Government Development Authority can use land for any purpose other than the one specified therein There is no provision in the Act under which the Development Authority can sanction construction of a building etc. or use of land for a purpose other than the one specified in the master plan zonal development plan The power vested in the Development Authority to make modification in the development plan is also not unlimited. It cannot make important alterations in the character of the plan. Such modification can be made only by the State Government and that too after following the procedure prescribed under Section 12(3 19. If the Developer has made a false promise to its allottees or the petitioners they may seek appropriate remedy against the Developer but they cannot encroach upon the rights of the Nagar Nigam of using 18 meters wide approach road leading to 24 meters wide road which connects to Amar Shaheed Path. In view of the specific stand of the Developer the petitioners cannot claim a higher right than what the Developer has. The sanctioned building plan specifically provided 18 meters wide approach road from 24 meters wide road running parallel to the land of the Lucknow Nagar Nigam. Any obstruction created either by the Developer or the petitioners is illegal and would amount unauthorized encroachment. The writ petition therefore lacks merit and is liable to be dismissed petition is hereby dismissed. 20. With the aforesaid observations directions the present writ D.K. Singh J.] [R.R. Awasthi J Order Date : 2nd July 2021 MVS

Strict proof of essential marriage rites not required for maintenance application under Section 125 CrPC: Allahabad High Court

“There is prima facie material on record to suggest that the parties have married or are having relationship in the nature of marriage, the court can presume in favour of the woman claiming maintenance.” The Court held that under Section 125 of the CrPC, strict proof of performance of essential marriage rites is not required. The Allahabad High Court presided over by J. R.B. Singh Laid Down this ratio in the case of Irshad Ali Vs. State of Uttar Pradesh & Anr., [Criminal Revision No. 1555 of 2020]. The facts of the case are that a revision plea was filed by Irshad Ali against the order by the Principal Judge of the Bareilly Family Court. The Court initially ordered him to pay Rs. 3000 when the application was filed and later ordered him to pay Rs. 2000 once the order was passed. The Revision Applicant contended that the court does not have jurisdiction to pass this maintenance application order and it was wholly arbitrary and excessive. They further contended that the marriage between the parties is void as he was a minor and the signatures were fabricated. Whereas, the wife opposing this plea stated that there was no error in the order and their was clear evidence that proved the marriage legally valid. The Court had to decide upon two question, i.e. is the marriage between the parties legally valid and if the wife is entitled to maintenance under Section 125 of CrPC. The Court was of the opinion that Section 125, CrPC, there is no need to determine the ‘rights and obligations’ of the parties as the section is enacted with a view to providing a summary remedy, that too for providing instant maintenance to wife, children and parents. Elaborating on Section 125 the Court further stated that, “If there is prima facie material on record to suggest that the parties have married or are having relationship in the nature of marriage, the court can presume in favour of the woman claiming maintenance. Since the provision under Section 125 CrPC is a measure of social justice and has been enacted to protect women, children or parents and the materials on record suggest two views, then the view in favour of women should be adopted. An order passed in an application under Section 125 CrPC does not finally determine the rights and obligations of the parties and the said section is enacted with a view to provide a summary remedy for providing maintenance to a wife, children and parents.” The Court further stated that, “Section 125 Cr.P.C. proceeds on de facto marriage and not marriage de jure. Thus, validity of the marriage will not be a ground for refusal of maintenance if other requirements of Section 125 Cr.P.C. are fulfilled… if from the evidence which is led, the Magistrate court is prima facie satisfied with regard to the performance of marriage in proceedings under Section 125 Cr.P.C. which are of summary nature, strict proof of performance of essential rites is not required.”

Reserved on 17.11.2020 Delivered on 08.01.2021 Court No. 80 Case : CRIMINAL REVISION No. 15520 Revisionist : Irshad Ali Opposite Party : State Of U.P. And Another Counsel for Revisionist : Shri Krishna Mishra Counsel for Opposite Party : G.A Hon ble Raj Beer Singh J This Revision has been preferred against order dated 25.08.2020 passed by Principal Judge Family Court Bareilly in criminal case no. 3012(Smt. Akhtari Begam Vs. Irshad Ali) under Section 125 Cr.P.C. Police Station Anwala District Bareilly whereby revisionist Irshad Ali has been directed to pay maintenance at the rate of Rs. 3 000 per months from the date of application to the date of order and to pay maintenance at the rate of Rs.2 000 per month from the date of order to the opposite party no. 2 under Section 125 Cr.P.C Heard Sri S.K. Mishra learned counsel for the revisionist and learned A.G.A. for State. However no one has appeared on behalf of respondent no. 2 despite service of notice. It has been argued by learned counsel for revisionist that impugned order is against facts and law and beyond jurisdiction and the amount of maintenance awarded by the court below is arbitrary and excessive. It has been submitted that the version of opposite party no.2 that she is married wife of revisionist or that on 07.05.1980 her marriage nikah has been solemnized with revisionist according to Mahommedan rites and rituals is false and baseless. At the time of alleged marriage revisionist was a minor aged about 14 years and thus he was not competent to enter into contract of marriage. The nikahnama filed by opposite party no.2 does not bear any signature of revisionist and that the said document is forged and fabricated It was further argued that opposite party no.2 is not legally wedded wife of revisionist and thus proceedings under Section 125 Cr.P.C. are not maintainable at her behest and therefore impugned order is against law. It was further submitted that court below did not get examine the signature shown on alleged Nikahnama from any expert rather the court itself compared the signature shown on alleged Nikahnama with admitted signatures of revisionist and concluded that the signatures shown on alleged Nikahnama were of the revisionist. It was submitted that in said Nikahnama the caste of revisionist has been mentioned as ‘Sheikh Mansoori’ whereas revisionist belong to ‘Saifi” caste which also indicates that alleged Nikahnama is fabricated. Learned counsel submitted that the court below also failed to consider that in evidence of opposite party no.2 the date of Nikah was mentioned as 07.08.1980 whereas in Nikahnama date of nikah is mentioned as 09.08.1979 and that at that time the revisionist might not have been attained the age of puberty. Learned counsel submitted that in view of above stated facts and circumstances the marriage nikah of revisionist with opposite party no.2 is not established and thus the impugned order is liable to set aside Learned AGA has argued that there is no error in the impugned order. The proceedings under Section 125 Cr.P.C. are of summery nature and that the opposite party no.2 has established by evidence that she is legally wedded wife of revisionist. The Nikahnama has been proved in accordance with law. It was submitted that finding of the court below that Nikah of opposite party no. 2 with the revisionist is established is based on evidence and there is no substantial error or perversity and thus the said finding can not be disturbed in exercise of revisional jurisdiction. I have considered rival submissions and perused record The main question that falls for consideration in the instant revision is that whether the respondent No. 2 has been able to show herself as married wife of revisionist in order to claim maintenance from revisionist under section 125 CrPC. At the out set it may be observed that proceedings under Section 125 Cr.P.C. are summary proceeding. In case of Dwarika Prasad Satpathy vs. Bidyut Prava Dixit and Another AIR 1999 SC 3348 it has been observed the standard of proof of marriage in a Section 125 proceeding is not as strict as is required in a trial for an offence under Section 494 IPC. The Court explained the reason for the aforesaid finding by holding that an order passed in an application under Section 125 does not really determine the rights and obligations of the parties as the section is enacted with a view to provide a summary remedy to neglected wives to obtain maintenance. It was held that maintenance cannot be denied where there was some evidence on which conclusions of living together could be reached. It was further observed as under : It is to be remembered that the order passed in an application under Section 125 Cr.P.C. does not finally determine the rights and obligations of the parties and the said section is enacted with a view to provide summary remedy for providing maintenance to a wife children and parents. For the purpose of getting his rights determined the appellant has also filed a Civil Suit which is pending before the trial court. In such a situation this Court in S. Sethurathinam Pillai v Barbara alias Dolly Sethurthinam {1971SCC 923 observed that maintenance under Section 488 Cr.P.C. 1898cannot be denied where there was some evidence on which conclusion for grant of maintenance could be reached. It was held that order passed under Section 488 is a summary order which does not finally determine the rights and obligations of the parties the decision of the criminal court that there was a valid marriage between the parties will not operate as decisive in any civil proceeding between the parties." This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3 reinforced by Article 39. We have no doubt that sections of statutes calling for construction by courts are not petrified print but vibrant words with social functions to fulfil. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed it is possible to be selective in picking out that interpretation out of two alternatives which advances the cause of the In the case of Ramesh Chander Kaushal v. Mrs. Veena Kaushal and others Krishna Iyer J dealing with interpretation of Section 125 Cr.P.C. observedthus: It is well settled that for the purposes of a proceeding under Section 125 Cr.P.C. the factum of marriage has to be prima facie considered. If there is prima facie material on record to suggest that the parties have married or are having relationship in the nature of marriage the court can presume in favour of the woman claiming maintenance. Since the provision under Section 125 Cr.P.C. is a measure of social justice and has been enacted to protect women children or parents and the materials on record suggest two views then the view in favour of women should be adopted An order passed in an application under Section 125 Cr.P.C. does not finally determine the rights and obligations of the parties and the said section is enacted with a view to provide a summary remedy for providing maintenance to a wife children and parents. In case of S. Sethurathiuam Pillai Vs. Barbara it was observed that maintenance under Section 488 Cr.P.C. 1898cannot be denied where there was some evidence on which conclusion for grant of maintenance could be reached. It was held that order passed under Section 488 is a summary order which does not finally determine the rights and obligations of the parties the decision of the criminal court that there was a valid marriage between the parties will not operate as decisive in any civil proceeding between the parties. In a proceeding for maintenance under Section 125 Cr.P.C. a Magistrate or Judge of the Family Court has to be prima facie satisfied about the marital status of the parties as a decision under Section 125 Cr.P.C. is tentative in nature subject to the decision in any civil proceeding as has been held in Santosh Vs. Naresh Pal8 Supreme Court Cases 447. The court is expected to pass appropriate order after being prima facie satisfied about the marital status of the parties. Even the definition of wife provided in Explanation of Cr.P.C is inclusive which reads as follows 125(1)(b) „Wife‟ includes a woman who has been divorced by or has obtained a divorce from her husband and has not remarried The above inclusive definition of wife suggests that a divorced woman who cannot be technically called a wife has been treated as wife for the purposes of proceeding under Section 125 Cr.P.C The Apex Court in the case of Rajathi Vs. C. Ganesan 6 Supreme Court Cases 326 held that in a case under Section 125 Cr.P.C the Magistrate has to take prima facie view of the matter and it is not necessary for the Magistrate to go into matrimonial dispute between the parties in detail in order to deny maintenance to the claimant wife. Section 125 Cr.P.C. proceeds on de facto marriage and not marriage de jure. Thus validity of the marriage will not be a ground for refusal of maintenance if other requirements of Section 125 Cr.P.C. are fulfilled 10. Perusal of above stated pronouncements shows that if from the evidence which is led the Magistrate court is prima facie satisfied with regard to the performance of marriage in proceedings under Section 125 Cr.P.C. which are of summary nature strict proof of performance of essential rites is not required. Either of the parties aggrieved by the order of maintenance under Section 125 Cr.P.C. can approach the civil court for declaration of status as the order passed under Section 125 does not finally determine the rights and obligations of the parties. The nature of proof of marriage required for a proceeding under Section 125 Cr.P.C need not be so strong or conclusive as in a criminal proceeding for an offence under Section 494 IPC since the jurisdiction of the Magistrate under Section 125 Cr.P.C. being preventive in nature the Magistrate cannot usurp the jurisdiction in matrimonial dispute possessed by the Civil Court. The object of the Section being to afford a swift remedy and the determination by the Magistrate as to the status of the parties being subject to a final determination by the Civil Court when the husband denies that the applicant is not his wife all that the Magistrate has to find in a proceeding under Section 125 Cr.P.C. is whether there was some marriage ceremony between the parties whether they have lived as husband and wife in the eyes of their neighbours whether children were born from the union Further it has also to be kept in mind that while exercising the revisional jurisdiction it is not required to enter into re appraisal of evidence and the court can not substitute its own findings in place of which are recorded in the order granting maintenance. Under the revisional jurisdiction the question whether the O.P. No. 2 is a married wife of petitioner being pre eminently questions of fact cannot be re opened in exercise of the revisional jurisdiction as has been held in the case of Pyla Mutyalamma @ Satyavathi Vs Pyla Suri Demudu and another reported in 201(3) ACR 3538wherein it has been held as under: it is well settled that the revisional court can interfere only if there is any illegality in the order or there is any material irregularity in the procedure or there is an error of jurisdiction. The High Court under its revisional jurisdiction is not required to enter into re appreciation of evidence recorded in the order granting maintenance at the most it could correct a patent error of jurisdiction. It has been laid down in a series of decisions including Suresh Mondal vs. State of Jharkhand AIR 2006 Jhar. R 153 that in a case learned Magistrate has granted where maintenance holding that the wife had been neglected and the wife was entitled to maintenance the scope of interference by the revisional court is very limited. The revisional court would not substitute its own finding and upset the maintenance order recorded by the the In revision against the maintenance order passed in proceedings under Section 125 Cr.P.C. the revisional court has no power to re assess evidence and substitute its own findings. Under revisional jurisdiction the questions whether the applicant is a married wife the children are legitimate illegitimate being pre eminently questions of fact cannot be reopened and the revisional court cannot substitute its own views. The High Court therefore is not required in revision to interfere with the positive finding in favour of the marriage and patronage of a child. But where finding is a negative one the High Court would entertain the revision re evaluate the evidence and come to a conclusion whether the findings or conclusions reached by the Magistrate are legally sustainable or not as negative finding has evil consequences on the life of both child and the woman This was the view expressed by the Supreme Court in the matter of Santoshvs. Naresh Pal as also in the case of Parvathy Rani Sahu vs. Bishnu Sahu Thus the ratio decidendi which emerges out of a catena of authorities on the efficacy and value of the order passed by the Magistrate while determining maintenance under Section 125 Cr.P.C. is that it should not be disturbed while exercising revisional jurisdiction. 12. Keeping the aforesaid position of law in mind in the instant matter it may be stated that the case of respondent no. 2 is that her nikah was solemnized with revisionist on 07.05.1980 and out of that marriage she has given birth to a daughter but she was killed by revisionist by administering some poisonous injection whereas the case of the revisionist is that his marriage nikah has never been solemnized with respondent no. 2 and they have never lived as husband and wife together So far as this contention of revisionist is concerned that at the time of alleged marriage revisionist was a minor and he was aged merely 14 years it may be observed that as per high school mark sheet date of birth of revisionist has been shown as 10.06.1966 and in the Nikahnama the date of marriage nikah has been shown as 09.01.1979 and that in Nikahnama age of groom Irshad Ali has been shown as 16 years and age of bride Akhtari Begun has been shown as 14 years. Two persons namely Mohd. Ibrahim and Mohd. Akhlaq have been shown as witnesses in the Nikahnama and it has also been signed by Vakeel and Qazi. It is correct that in her application under Section 125 Cr.P.C. the respondent No. 2 has stated date of Nikah as 07.05.1980 whereas in Nikahnama the date of Nikah has been shown as 09.01.1979 but such type of error cannot be given much importance in proceedings under Section 125 Cr.P.C. Such type of error may crept in due to lapse of time or by mistake. The document relied by the respondent No. 2 in support of her claim is said Nikahnama wherein date of Nikah of revisionist has been shown as 09.01.1979. The statement of APW 1 Smt Akhtari to the effect that her Nikah was solemnized with revisionist is quite clear and cogent and no such important fact could emerge in her cross examination so as to affect her credibility Her version is supported by her brother APW 2 Mohd. Ali. Though her version is denied by revisionist OPW 1 Irshad Alibut the over all view of evidence shows that at the time of his Nikah on 09.01.1979 with respondent no. 2 the revisionist was aged about 16 years and thus the contention of learned counsel for the revisionist that at the time of Nikah revisionist was aged merely 14 years cannot be accepted. It was further contended by learned counsel for the revisionist that the court below did not get examine the signature shown on alleged Nikahnama and specimen signature of revisionist by handwriting expert rather the court itself compared the signatures and concluded that signature of revisionist shown on papers filed in proceeding of case have similarity with the signature shown on Nikahnama. Learned counsel has submitted that the approach of the court below in comparing the signatures by itself is not in accordance with law and thus it cannot be said that the said Nikahnama bears signatures of revisionist. It is correct that the court below itself has compared the purported signatures of revisionist shown on Nikahnama and signatures of revisionist shown on documents application 3 K 1 affidavit 6 K objection 18 K and statement 32 K and concluded that signatures of revisionist on these documents find similarity with the signatures shown on Nikahnama but it can not be said that this approach was not permissible under law. The court below has correctly observed that in accordance with Section 73 of Indian Evidence Act Court can compare the disputed and admitted signatures of a party person. Thus it cannot be said that the course adopted by court below in comparing the said signatures is not in accordance with law. It would be pertinent to mention here that as stated above proceedings under Section 125 Cr.P.C. are of summary nature and thus it cannot be said that the conclusion reached by the court below is against law or facts. Learned court below has made detailed discussion of entire facts and evidence of both the parties and concluded that respondent no. 2 has established that her nikah with revisionist. Learned court below has also referred Section 251 of “Principles of Mahomedan Law” authored by Sri Mulla wherein it has been stated that a Mohamedan who is a person of sound mind and attained the age of puberty can enter into contract of marriage. The court below also referred case of Mohd. Idarish vs. State of Biharwherein it has been held that the age for Muslim entering into contract of marriage is 15 years. Section 270 of “Principles of Mohamedan Law” has also been referred wherein even a minor can enter into the contract of marriage through his guardian. 15. As discussed above the position of law is that if from the evidence which is led the Magistrate court is prima facie satisfied with regard to the performance of marriage in proceedings under Section 125 Cr.P.C. which are of summary nature strict proof of performance of essential rites is not required. Either of the parties aggrieved by the order of maintenance under Section 125 Cr.P.C. can approach the civil court for declaration of status as the order passed under Section 125 does not finally determine the rights and obligations of the parties. Here it may again be reiterated that proceedings under Section 125 Cr.P.C. are summary proceeding and the standard of proof of marriage in a Section 125 proceeding is not as strict as is required in a trial for an offence under Section 494 IPC. In proceedings under Section 125 Cr.P.C the court does not finally determine the rights and obligations of the parties and the said section is enacted with a view to provide summary remedy for providing maintenance to a wife children and parents. In fact this provision is a measure of social justice and that the factum of marriage has to be prima facie considered. In the instant case there is prima facie material on record to suggest that the parties have married and they had relationship in the nature of marriage Further in the instant proceedings of criminal revision it is not required to enter into re appraisal of evidence and the court can not substitute its own findings in place of one recorded by trial court in the order granting maintenance. The question whether the respondent No. 2 is a married wife of revisionist is a question of fact and thus this court can not upset the finding of the trial court by entering into re appreciation of evidence unless it is shown such a finding is not based on evidence or some patent error of jurisdiction is shown. In instant case no such eventuality could be shown In fact if the wife had been neglected and the wife was entitled to maintenance the scope of interference by the Revisional Court is very 16. So far this aspect is concerned that respondent no. 2 is unable to maintain herself and that the revisionist has neglected her maintenance there is ample evidence on record which shows that respondent no. 2 has no source of income to maintain herself. She has also stated that her father has passed away and mother is suffering from serious illness and she has no source of income to maintain herself. Regarding income of revisionist she has alleged that revisionist is working as a doctor and he is running his own clinic and earning Rs. 30 000 to 50 000 per month and besides that he has also income from rent and agricultural land. Though revisionist has alleged that he merely looks after land of one Sanjay Shrotriya and he is getting Rs. 4 000 per month for the same but the court below has noticed that revisionist has not made any such categorical statement in his examination in chief that he is not practising as a doctor or he has no land or income from rent. Further the respondent no. 2 has filed a khatauni paper no. 34 Kha wherein name of revisionist is recorded as a tenure holder of transferable rights. Considering entire evidence trial court has determined the income of revisionist is 10 000 per month. Perusal of record also shows that respondent no . 2 has instituted this case under Section 125 Cr.P.C. in the year 2012 but it was continuously delayed by the revisionist and it could be decided after eight years in the year 2020. In view of these facts and evidence on record the court below has granted maintenance at the rate of Rs. 3 000 per month from the date of application to the date of order and Rs. 2 000 per month from the date of In view of evidence on record the grant of maintenance from the date of application cannot be said arbitrary or against law. The quantum of maintenance also appears reasonable and appropriate. If a party deliberately delays the proceedings for long period such party must not be allowed to take advantage of such tactics. 18. After considering averments and evidence of parties it is apparent that court below has considered entire relevant facts and evidence and that findings of the court below are based on evidence. No illegality perversity or error of jurisdiction could be shown in the impugned order. The quantum of maintenance awarded by the court below can also not be said excessive or arbitrary. 19. At this juncture it may be stated that recently in case of State of Madhya Pradesh Vs. Deepakdecided on 13.03.2019 Hon ble Apex Court has laid down that object of section 397 CrPC 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. 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 on no evidence material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. In the instant case no such contingency could be shown so as to call any interference by this court in revisional jurisdiction. Thus in view of the aforesaid facts and circumstances of the case present criminal revision lacks merit and accordingly the revision is Order Date : 08.01.2021

Non-indication of inculpatory material in its relevant facets by the trial Court to the accused adds to vulnerability of the prosecution case: Patna High Court

It is settled law that incriminating circumstances appearing against the accused in prosecution evidence must be put to the accused at the time of statement under Section 313 Cr.P.C. Unless such statements are put to the accused to give opportunity to meet the same with explanation, such incriminating circumstances cannot be used against the accused. This was said in the case of Shivjee Sah And Anr vs The State Of Bihar [CRIMINAL APPEAL (SJ) No.4273 of 2018] by Mr. Justice Birendra Kumar in the High Court of Bihar. The facts of the case are that the appellants were found guilty for offence under Section 304-B of the Indian Penal Code by judgment dated 25.09.2018. Appellant was sentenced to undergo rigorous imprisonment for 10 years and other appellants were sentenced to undergo rigorous imprisonment for 7 years. The judgment of conviction and order of sentence are challenged in these appeals. The appellant contended that there is no acceptable evidence of demand of dowry and torture for the same after fulfillment of the demand of a gold chain as alleged by the prosecution. The prosecution case suffers from non-corroboration of claim of the prosecution that the victim was throttled to death by the medical evidence. Further, the specific question on incriminating material as to nature of dowry demand and nature of torture is missing in the statement of accused under Section 313 Cr.P.C. Hence prosecution evidence, if any, cannot be relied upon. The State contended that plurality of the witness on any specific point is not the requirement of law. Prosecution witness 4 and 5 have specifically deposed that even after fulfillment of earlier demand of gold chain, further demand of motorcycle continued. The victim died within a year of her marriage in unnatural circumstances in the matrimonial house. Hence, the burden was on the appellants to dispel the presumption that this was not a case of dowry death. The Court referring to the case of Sunil Bajaj Vs. State of Madhya Pradesh [2001 CRI. L. J], said that “In the case on hand, there is no independent corroboration, of any torture to the deceased, by any neighbor who had occasion to watch the relationship of the deceased with her in-laws nor there is any evidence that the deceased while she was in her parents house from 20.09.2013 to 23.09.2013, made any complaint of demand and torture nor the doctor found any external injury on the person of the deceased to corroborate the claim of the prosecution witnesses that the deceased telephonically informed that she was bitterly assaulted by the in- laws and after few hours report of her death was received. Thus, the prosecution evidence is very shaky and clumsy to prove the ingredient of demand of dowry and torture for the same and on such evidence conviction would not be safe”. Furthermore, the Court said that “The learned trial Judge has not considered correctly that the prosecution has failed to prove a case of demand of dowry and torture for non-fulfillment of the same. As such the prosecution failed to establish the charge under Section 304-BIPC beyond reasonable doubt”. Hence, the judgment of the Trial Court is set aside.

Sessions Judge Mandi dated 24.02.1998 has been set aside Consequently Achhar Singh has been convicted for offences under Sections 452 326 and 323 of the Indian Penal Code 1860and 302 and 452 IPC and sentenced to undergo imprisonment for life The prosecution case in brief is that on the night of 23.02.1996 the complainant Netar Singh’s wifehad attended the marriage function in a nearby village at the house of the bridegroom with whom their neighbour Budhi Singh’s daughter got married. Both the ladies It is relevant to mention here that owing to their social boycott by Budhi Singh and some other villagers Netar Singh’s family did not when the complainant and his family were taking Dhaam Budhi house and bolt their door. The assailants however broke open the Singh had axes while the other accused were armed with sickles hit Beli Ram with an axe due to which the latter fainted. The begged the assailants for mercy and they left threatening that the Meanwhile some villagers including Govind Ram and Bahadur who were standing outside intervened and called on the accused persons to stop the violence whereupon the accused were Sections 147 148 452 506 323 302 and 326 of the IPC. the possibility of false implication. The belatedly exaggerated regard to the role of present appellants it was pointed out that according to the FIR Swari Devi died owing to a single axe blow one head injury on her person. However three prosecution eye­ witnesses namely Netar Singh P.W.1Meera Devi the face by Achhar Singh and Prakash but in their depositions the injured or eyewitnesses have attributed attacks to other co­accused persons also which were not corroborated by the medico legal report of Beli Ram. They also changed the nature of The trial Court also observed that eyewitness Govind Ram D.W.2) did not support the prosecution story and the Gram to contact the police. Noting that no evidence was put forth by the to be fatal to the prosecution. The spot of occurrence was also doubted observing that bloodstains were noticed in the passage the prosecution witnesses coupled with the allegation that about sixteen persons entered a small room and started attacking the not attribute any specific injury to any of the accused and thus though it has upheld the acquittal of the rest of the five accused be extracted from the material on record howsoever messy it was Disregarding the exaggerations and improvements made by the first axe blow by Budhi Singh on the head of Swari Devi was corroborated by the FIR the prosecution witnesses the post­mortem the recovery of axe from him. The High Court noted that the allegations against Achhar Singh with regard to his assault on Beli the occurrence it was held that the evidence regarding the broken windowpanes scattered articles in the room plates with leftover food function could have been underway at Budhi Singh’s house on the hurt to Beli Ram the appellants were held to be liable for their individual acts. Budhi Singh was thus convicted for offences under Sections 302 and 452 IPC and Achhar Singh was convicted for the Relying on Murugesan v. State1 Learned Senior Counsel for ‘possible view’ further scrutiny by the High Court in exercise of powers under Section 378 CrPC was not called for. While citing be set aside merely because the appellate Court’s view is more advantage to judge the credibility of the witnesses and make intangible observations. Learned Senior Counsel highlighted the prosecution witnesses’ tendency to exaggerate and falsely implicate by the eye­witnesses were falsified by the medical evidence which showed only one head injury. It was also accentuated that nine persons who were mentioned in the FIR were let go at the stage of from a public place it could not be held that Budhi Singh was in possession of the article recovered. Additionally no conclusive mid­celebration and attack his neighbours. Doubt was also cast on had deposed that there was a blood trail outside the house. It was further contended that Narinder Singh had also been accused of inflicting a head injury on the deceased with an axe and despite mortem the time between the death and the post­mortem was justified in therefore considered to be innocent in the interregnum between accusation and judgment. History reveals that the burden on the The Babylonian Code of Hammurabi one of the accused. In Woolmington v. Director of Public Prosecutions10 the House of Lords held that the duty of the prosecution to prove the been statutorily dispensed with for example under Section 113­B of the Evidence Act 1872. Regardless thereto the ‘Right of Silence’ of presumed innocence. The constitutional mandate read with the scheme of the Code of Criminal Procedure 1973 amplifies that the presumption of innocence until the accused is proved to be guilty is an integral part of the Indian criminal justice system. This presumption of innocence is doubled when a competent Court analyses the material evidence examines witnesses and acquits the the witnesses and direct interaction with evidence. In such cases interference is not thrusted unless perversity is detected in the It is thus a well crystalized principle that if two views are judgment. However such a precautionary principle cannot be against acquittal11. This Court has held in a catena of decisions Himachal Pradesh14 ) that the CrPC does not differentiate in the 11 Sangappa v. State of Karnataka 3 SCC 686 ¶ 10 power scope jurisdiction or limitation between appeals against The trial Court in the instant case rightly observed that the evidence was chaotic with regard to many accused persons and no regarding the exaggerations and contradictions within the evidence Keeping in mind the attempts by the prosecution witnesses to consistent evidence against some of the accused which were overlooked by the trial Court amid the chaos. While analysing the 17. Complainant Netar Singh deposed that when the Singh Achhar Singh Narinder Singh were armed with axes Prakash and Hem Singh) were bearing sticks. While mentioning the present the head of my mother while Narender accused gave two axe blows accused gave me danda blows”. It was also mentioned that the accused had broken the door windows and utensils. He then at about 8­9 AM the next morning. He also mentioned that prior animosity existed between the parties because Budhi Singh and Narinder Singh wanted to purchase the land where he had constructed a house and that his father ­ Beli Ram had previously filed a case against the accused persons in which they had been 18. Meera Devi P.W.11 the daughter in law of the deceased stated in her testimony that Budhi Singh and Narinder Singh were armed with axes while Prakash carried a spear and Sodha Ram carried a ear of my mother­in­law and my mother­in­law fell down and died and Hem Singh gave danda blow to my husband Netar Singh.” She stated that her husband escaped to the roof reported the matter to in­law’s body was sent for post­mortem. During her cross­ Injured witness Beli Ramwas also examined and he stated that Budhi Singh Narinder and Achhar Singh came bearing axes while Prakash had a spear Sodha Ram had a sickle and Jai and on my leg….Netar Singh was given beatings by Jai Singh and Hem the roof. It was mentioned that the accused persons had formed a committee to boycott them and thus nobody from the village gave evidence in their favour. He also disclosed that “Narinder Singh accused also gave blow blunt side of the axe on my face near ear.” Thereafter he fell unconscious and was medically examined at the 20. Dr. DD Rana who conducted the post­mortem of the deceased examined as P.W.3. with regard to Swari Devi he described one incised wound on the left temporal region which he stated could have of his skull a lacerated wound on the right foot fracture in the facial Ram could be inflicted by falling on a sharp­edged stone and other even if the exaggerations of multiple axe blows being given to the house of the victims armed with an axe and hit Swari Devi on her witnesses. The same is also supported by the post­mortem report as to who caused Swari Devi’s fatal injury was unwarranted and and posterior skull along with fracture in the facial bone) being a the witnesses have been consistent about Achhar Singh’s attack on of the Doctorand the post­mortem report is unacceptable. As noticed earlier the prosecution witnesses have given an over­ exaggerated version of the injuries suffered by the deceased. They have however consistently deposed that the head injury which proved to be fatal was caused by Budhi Singh. Their statement to this room of occurrence created chaos and some of such persons were that the fatal blow to the deceased was caused by none else than “exaggeration” as “the fact of making something larger more important better or worse than it really is”. Merriam­Webster defines the term Oxford Dictionary defines it as “enlarged or altered beyond normal proportions”. These expressions unambiguously suggest that the genesis of an ‘exaggerated statement’ lies in a true fact to which exaggeration therefore has the ingredients of ‘truth’. No exaggerated Advance Law Lexicon defines “false” as “erroneous untrue opposite of correct or true”. Oxford Concise Dictionary states that “false” is “wrong not correct or true”. Similar is the explanation in other dictionaries as well. There is thus a marked differentia between an contains both truth and falsity whereas a false statement has no make a mountain out of a molehill the molehill shall have to exist primarily. A Court of law being mindful of such distinction is duty of the accused conviction can be based on it. This Court in Hari 15 Sucha Singh v. State of Punjab 7 SCC 643 ¶ 18. maxim falsus in uno falsus in omnibus cannot apply part of the evidence is not found acceptable the remaining part of evidence has to be scrutinised with care and the court must try to see whether the acceptable part of the evidence gets corroborated from There is no gainsaid that homicidal deaths cannot be left to judicium dei. The Court in their quest to reach the truth ought to P.W.1 P.W.11 and P.W.12 are therefore to be analysed accordingly We find that the truth can be effortlessly extracted from their statements. The trial Court apparently fell in grave error and not justified in reversing the trial Court’s judgment unless it was to identify and appreciate material admissible evidence against the appellants. The trial Court misdirected itself to wrong conclusions court has to consider the entire evidence on record so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact the trial court had failed to take into supra) Triveni Rubber & Plastics v. CCE18 and Basalingappa v Mudibasappa19) where this Court has firmly held that a finding ignorance of the relevant material on record was undoubtedly Court it has to be kept in mind that neither is there a reason on instead falsely implicate the appellants to settle scores on trivial issues. Rather from the very beginningtill their last deposition the complainant and other two injured eye witnesses have been consistently accusing Budhi Singh for committing murder of Swari “26….Ordinarily a close relative would be the last to person. It is true when feelings run high and there is personal cause for enmity that there is a tendency to a grudge along with the guilty but foundation must be laid for such a criticism and the mere fact of guarantee of truth. However we are not attempting any facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be This decision has been usually followed by this Court in various cases such as Mohd. Rojali Ali v. State of Assam21 Laltu Ghosh v State of West Bengal22 Khurshid Ahmed v. State of J&K23 and 31. Coming to the arguments of Learned Senior Counsel for the appellants that since the axe was recovered from a public place it was sought) it is clear from the facts that this was a farming community in rural Himachal where tools like axes are found in everyone’s homes. The argument that the spot of incident was P.W.16 ­ ASI Jaisi Ram carries no force. The presence of random blood marks elsewhere could not put in doubt the fact that the incident happened in the house of the complainant from where the same witness recovered sticks blood­stained stone glass splinters it necessary or even material to investigate the blood marks shows pertinent to note that independent witness P.W.14 ­ Lauhalu Ram also corroborated the recovery of broken pieces of the door broken bulb stones blood­stained soil etc. from the house of the it is clear from the facts that the complainant’s family had prior boycotted the victim’s family. The fact that nine persons who were not arrayed as prosecution witnesses is understandable. It is not necessary for the prosecution to examine every cited or possible proof beyond doubt non­examination of all or every witness is This Court in Sarwan Singh v. State of Punjab25 was of the the prosecution and it follows as a logical corollary that the to prove its case. The court cannot compel the prosecution to inference against the prosecution…The law is well­settled that the prosecution is bound to produce only such witnesses as are essential for unfolding of the prosecution narrative. In other words before an adverse inference against the prosecution can be drawn it must be than the quantity of the evidence that matters. In the from any infirmity or any manifest defect on its intrinsic was ‘within 10 hours’ has also deposed that the time between the death of Swari Devi and the injury was ‘within 5­10 minutes’ thereby 35. Coming to the case of Narinder Singh whose acquittal has been FIR though not an encyclopedia of the entire incident is the most spontaneous account of it. It is very hard to believe that the complainant who walked seven hours overnight to reach the police Singh as well. Such a major omission on the complainant’s part is High Court has only acted on consistent and corroborated evidence against Budhi Singh and Achhar Singh which was conspicuously at the relevant time. Even Budhi Singh has not said so in his Court and has prevented miscarriage of justice by separating grain are maintained. Their bail bonds are cancelled and they are

Once the existence of the three ingredients forming a part of Section 300 is established, it is irrelevant whether there was an intention on the part of the accused to cause death: Supreme Court

It does not matter that there was no intention even to cause the injury of a kind that is sufficient to cause death in ordinary course of nature. Even the knowledge that an act of that kind is likely to cause death is not necessary to attract “thirdly” as upheld by the Supreme Court through the learned bench led by Justice Abhay S. Oka in the case of Vinod Kumar v. Amritpal @ Chhotu & Ors. (CRIMINAL APPEAL NO. 1519 OF 2021)(Arising out of SLP (Crl.) No.9185 of 2016) The brief facts of the case are that the respondent nos.1 to 5 are the accused who were prosecuted for the offences punishable under Sections 147, 364, 302/149, 201 and 323/149 of the Indian Penal Code . The Sessions Court convicted the accused for all the aforesaid offences. They were sentenced to undergo imprisonment for life for the offence punishable under Sections 302 read with 149 of IPC. For the other offences, lesser punishments were imposed. All the sentences were ordered to run concurrently. They were also directed to pay fine for other offences. Being aggrieved by the Judgment and order of the Sessions Court, the accused preferred an appeal before the High Court of Rajasthan. By the impugned Judgment and order dated 18th July 2016, while maintaining the conviction of the accused for the offences punishable under Sections 147, 364, 201 and 329/149 of IPC, the conviction of the accused for the offence punishable under Sections 302 of IPC was brought down to the offence punishable under Section 304 Part II of IPC and the accused were sentenced to undergo rigorous imprisonment for 8 years. The fine amount was not disturbed. The appellant, who is the first informant, has taken an exception to the impugned Judgment and order of the High Court. He is the brother of a victim of the offence Vijay Singh (PW1). The allegation against the accused is also of committing murder of Balveer Singh. Vijay Singh (PW1) was injured in the incident. The learned counsel appearing for accused without challenging the incident and participation of the accused in the incident, made a submission before the High Court that the offence established against the accused was the one punishable under Section 304 Part II of IPC. The accused did not challenge the conviction for the other offences. After the perusal of the facts and arguments, the Hon’ble Supreme Court held, “The view taken by High Court in the impugned Judgment and order that the offence under Section 300 was not made out is not even a possible view which could have been taken on the basis of the evidence on record. As we are of the view that the High Court has committed a gross error by applying Section 304 Part II of IPC, the Judgment and order of the High Court will have to be set aside and the judgment and order of the Sessions Court will have to be restored. We hold that the learned Additional District and Session Judge was right in convicting the accused for the offence punishable under Section 302/149 of IPC.”

IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1519 OF 2021 Arising out of SLPNo.91816 ..… APPELLANT AMRITPAL @ CHHOTU & ORS ..... RESPONDENTS J U D G M E N T ABHAY S. OKA J 1. The respondent nos.1 to 5 are the accused who were prosecuted for the offences punishable under Sections 147 364 302 149 201 and 323 149 of the Indian Penal Code for all the aforesaid offences. They were sentenced to undergo imprisonment for life for the offence punishable under Sections 302 read with 149 of IPC. For the other offences lesser punishments were imposed. All the sentences were ordered to run concurrently. For the offence punishable under Sections 302 the accused were directed to pay a fine of Rs.10 000 each. They were also directed to pay fine for other offences. Out of the fine amount a sum of Rs.70 000 was directed to be paid to the widow of the 3. Being aggrieved by the Judgment and order of the Sessions Court the accused preferred an appeal before the High Court of Rajasthan. By the impugned Judgment and order dated 18 th July 2016 while maintaining the conviction of the accused for the offences punishable under Sections 147 364 201 and 329 149 of IPC the conviction of the accused for the offence punishable under Sections 302 of IPC was brought down to the offence punishable under Section 304 Part II of IPC and the accused were sentenced to undergo rigorous imprisonment for 8 years. The fine amount was not disturbed. 4. The appellant who is the first informant has taken an exception to the impugned Judgment and order of the High Court. He is the brother of a victim of the offence Vijay Singhwas injured in the incident 5. From the impugned Judgment and order it appears that the learned counsel for the accused while arguing the appeal challenged only the conviction of the accused for the offence punishable under Section 302 of IPC. The learned counsel appearing for accused without challenging the incident and participation of the accused in the incident made a submission before the High Court that the offence established against the accused was the one punishable under Section 304 Part II of IPC The accused did not challenge the conviction for the other offences 6. Mr. Manish K. Bishnoi the learned counsel appearing for the appellant has taken us through the impugned Judgment and order of the High Court. His submission is that the injuries on the person of the deceased were on vital parts of his body. He pointed out that 6th to 10th ribs of the deceased were found to be fractured and right lung was ruptured. Moreover there was an injury to his liver. He pointed out the opinion of the medical board that injuries to the vital parts like right lung and liver led to excessive bleeding and shock which was the cause of death. He submitted that the High Court proceeded on erroneous footing that there were no injuries on the vital parts of the body of the deceased. He further submitted that none of the exceptions to Section 300 of IPC were applicable. He also pointed out that before throwing the body of the deceased into a canal his face was completely smashed by the accused. He submitted that “thirdly” in Section 300 of IPC was applicable. Dr Manish Singhvi the learned Senior Counsel appearing for the State of Rajasthan supported the appellant. 7. Gp. Capt. Karan Singh Bhati the learned counsel representing the accused pointed out that there is no evidence on record to show that objects like iron rod and sticks were used to assault the deceased as even PW1 Vijay Singh has not deposed to that effect in his examination in chief. He submitted that no weapons were used to attack the deceased. He submitted that the fact that there was no intention on the part of the accused to kill deceased Balveer Singh is clear from the fact that the accused took Balveer Singh to a doctor. Moreover the accused took PW1 Vijay Singh to a common relative and they had tea in the house of the common relative. He would therefore submit that correct view has been taken by the High Court that the offence punishable under Section 302 of culpable homicide amounting to murder was not made out 8. Before we deal with the submissions we may note here that when the petition was heard on 11th November 2021 we found that before the High Court the accused had not challenged their participation in the incident and the submissions were confined to bringing down the offence punishable under Section 302 to Section 304 Part II. Therefore we made a query to the learned counsel appearing for the respondents accused to ascertain whether the respondents accused want to argue on merits for acquittal. On 16 th November 2021 the learned counsel Gp. Capt. Karan Singh Bhati on instructions stated that the accused wanted to take the same stand which was urged before the High Court CONSIDERATION OF SUBMISSIONS 9. Though the incident has been admitted by the accused for the sake of completion we are referring to the prosecution case which can be gathered from the deposition of Vijay Singh the injured witness. On 5th October 2005 PW1 along with deceased Balveer Singh had been to Hanumangarh. In the evening they took a train for returning to their village Sherekan. While they were walking towards their house from the railway station they found that the accused nos. 1 2 3 and 5 were standing near the railway crossing and they started walking with the deceased Balveer Singh and PW1. On the way a Tata Sumo vehicle was parked in which the accused no.4 was sitting. The accused no.4 pulled hair of Vijay Singh and the accused no.5 pushed him into the vehicle. The accused nos.1 to 3 pushed Balveer Singh into the said vehicle Thereafter the vehicle proceeded towards Hanumangarh. The accused nos. 2 and 3 had put hands on the mouth of Balveer Singh and PW1 respectively. In the vehicle the accused nos.4 and 5 started beating the deceased and PW1. The vehicle was taken to Hanumangarh. The vehicle reached near Saim nullah. Thereafter the vehicle was taken on an unmetalled road and was stopped in an open field. After the vehicle stopped the accused banged Balveer Singh flat on the ground and they started assaulting Balveer Singh The accused no.1 had put hand on the mouth of PW1 and the accused no.5 started assaulting him. PW1 begged before the accused to spare him. They continued to beat Balveer Singh. When the accused noticed a light of a vehicle approaching the place they put both the deceased as well as PW1 in the vehicle. By that time Balveer Singh had become unconscious. They took Balveer Singh to the house of a doctor at Salemgarh Masani. After noticing serious condition of deceased Balveer Singh the doctor advised that Balveer Singh should be taken to Hanumangarh. Thereafter the vehicle was taken to residence of uncle of the accused no.4 where the tank of the vehicle was filled in. The accused thereafter took the vehicle near a canal and stopped the vehicle as the wheel got punctured. By that time Balveer Singh had died. The accused took out the body of Balveer Singh from the vehicle and by using pieces of bricks lying nearby they smashed the face of body so that it could not be identified. Thereafter they threw the body of the deceased to the canal and the clothes were also thrown into the canal by attaching bricks to it. The accused moved with PW1 to the residence of one Kanwar Sain who was related to the parties. As the said relative was not aware about the incident he offered tea to them. After the accused disclosed the incident the said relative asked them to leave his house 10. The accused had threatened PW1 not to disclose the incident to any one. They told him that if he discloses the incident he would suffer the same fate which was suffered by the deceased. When they left the place of Kanwar Sain the accused nos.1 to 3 were in the vehicle. On the way the accused nos.2 and 3 boarded a bus and the accused no.1 took PW1 to Hanumangarh Town Police Station. The police admitted PW1 to hospital. Thereafter the police prepared a report and signatures of PW1 were taken 11. It is necessary to note the injuries found on the body of the deceased. Dr. Jaspal Badappa PW3 deposed that there was a medical board comprising of him and Dr. Brijesh Gaur who was working as a medical officer in a Government Hospital in Hanumangarh town. Both of them conducted autopsy on the body of the deceased. It is necessary to reproduce the relevant part of the deposition of PW3 Dr. Jaspal Badappa. He described the injuries on the person of the deceased as under “1. There were multiple blue colour bruise marks over the lower part of right hip to the back and front side of right thigh and 3 4th part of the back and side portion of the right leg 2. There were multiple blue colour bruise marks over the lower part of left hip to the back and front side of left thigh and 3 4th part of the back and inner side portion of the left leg and skin was also ruptured 3. There were multiple blue colour bruise marks on the front side of left thigh and skin was also ruptured on 4. There were multiple blue colour bruise marks at the 1 2th lower part of the chest and also on the back side along with waist 5. There was a wounded cut which crosses through sternal notch of both sides of the neck to mastoid part of the back side of ear. The muscles of neck food pipe and lungs were also ruptured. Both the arteries veins and ears and muscles were ruptured and on the parts of temporal bone frontal bone and forehead skin were ruptured to the extent of visibility of bones The bones of upper and lower jaw nose and face were visible as it was not covered by skin. The back side of neck is attached with one piece of skin and cervical bones of neck are clearly visible 6. Mashed wound admeasuring 2 X 1 inch and bones are visible on the part of left palm 7. Mashed wound admeasuring 1.1 2 X 1 2 inch X deep to the muscles inner part bones are visible on the part of left palm 8. Mashed wound admeasuring 1 X 1 4 inch X deep wound to the side portion of the left leg 9. There were multiple marks of scar over dorsal part of left hand During the internal examination of head and throat there was hair on the head ruptured wound running from sternal notch on both sides of neck were visible and ruptured veins arteries windpipe food pipe and muscles going from front and back side along with the mastoid part of the back side of ear where bone can be seen due to flayed skin. The frontal bone temporal bone face upper jaw nose bone and mandible bone of jaw are clearly visible. The right eye was popped out whereas left eye was closed. The cervical bones of neck are clearly visible and the back side of neck is attached with a piece of skin. The brain and its membrane are in healthy state. During the examination of chest hematoma was found in the muscles of injured part and sixth to tenth bone from the right side were found to be fractured and multiple of right lung with its membrane was also ruptured. The wind pipe and food pipe were ruptured and both sides of chambers of heart were empty. Blood clotting was found during the examination of stomach. There was rupture mark in the stomach and liver admeasuring 1 2 inch X 1 2 inch X 1 2 inch. During the examination of genitals testicles were in swollen condition and penis was not injured. During the examination there was no skin over the face of deceased as bones were visible and food pipe and wind pipe were ruptured.” the offence is murder . It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of natureit does not matter that there was no intention even to cause the injury of a kind that is sufficient to cause death in ordinary course of nature. Even the knowledge that an act of that kind is likely to cause death is not necessary to attract “thirdly”. Hence it follows that clause “thirdly” of Section 300 will apply in this case 19. We are constrained to observe that the High Court adopted an easy method of accepting the only contention canvassed that the offence made out was culpable homicide not amounting to murder As noticed earlier the High Court ignored that there were injuries on the vital parts of the body of the deceased. The High Court did not notice that all the elements of “thirdly” in Section 300 were 20. It was argued that the accused took the deceased to a doctor which shows the absence of intention to kill him. Apart from the fact that for the reasons recorded above the absence of intention to kill is not relevant in the facts of the case the injuries found by PW3 on the face of the deceased which were not the ante mortem injuries establish that before throwing the body of the deceased in a canal his face was completely smashed by the accused. The fact that accused after killing deceased Balveer Singh went to a common relative will not be of any assistance to the accused. 21. The view taken by High Court in the impugned Judgment and order that the offence under Section 300 was not made out is not even a possible view which could have been taken on the basis of the evidence on record. As we are of the view that the High Court has committed a gross error by applying Section 304 Part II of IPC the Judgment and order of the High Court will have to be set aside and the judgment and order of the Sessions Court will have to be 22. We hold that the learned Additional District and Session Judge was right in convicting the accused for the offence punishable under Section 302 149 of IPC. Accordingly the appeal is allowed by setting aside the impugned Judgment of the High Court dated 18 th July 2016. We restore the Judgment and order dated 26 th September 2011 in Session Case No.04 2006 passed by the learned Additional District and Session Judge No. 1 Hanumangarh Rajasthan. Therefore the substantive sentence and the fine imposed by the Court of Sessions for the offence punishable under Section 302 149 of IPC is restored. 23. We direct the accused to surrender before the Trial Court within a period of six weeks from today. If they fail to surrender within six weeks from today action be taken by the Trial Court for arresting them in accordance with law. They shall undergo remaining period of sentence in terms of the judgment of the Trial Court dated 26th September 2011. ABHAY S. OKA New Delhi November 30 2021.

Settlements under the ID Act can be entered between Management and Workman even outside the court/conciliation proceedings: High Court of Delhi

Settlements can be entered into between Management and Workman even outside the court/conciliation proceedings as is clear from Section 18(1) ID Act. Such settlements would be valid and legal. Purpose of providing such provisions of settlement is that there is finality to the settlement and parties should not be relegated to continue to avail of their legal remedies leading to delays involving expending of precious judicial time and the same was upheld by High Court of Delhi through the learned bench led by Justice Prathiba M. Sinngh in the case of M/S WEARWELL (INDIA) PRIVATE LIMITED vs. MOHD. NIZAM [W.P.(C) 2034/2022] on 02.02.2022. The facts of the case are that Respondent (Workman) was working as a Tailor with the Petitioner (Management) and the last drawn salary was Rs.11,830. The Management claims that it had placed the Workman under suspension on 16th December, 2017 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 he 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. This led to the Workman approaching the authority under section 15(2) of the Act. The petitioner’s counsel submitted that since the Workman did not appear and confirm the settlement, the amount of pre-deposit would not be liable to be refunded. Pre-deposit amount cannot be refunded on the ground that the settlement has not been acknowledged and accepted by the Workman. In view of the facts and circumstances of the cases, the Court set aside the impugned order and disposed of the petition as no useful purpose would have been served in again issuing notice to the Workman inasmuch as it appeared to this Court that the Workman was satisfied with the settlement and did not wish to incur further costs. The Court observed that, “Settlements can be entered into between Management and Workman even outside the court/conciliation proceedings as is clear from Section 18(1) ID Act. Such settlements would be valid and legal. Purpose of providing such provisions of settlement is that there is finality to the settlement and parties should not be relegated to continue to avail of their legal remedies leading to delays involving expending of precious judicial time”.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 2nd February 2022 M S WEARWELLPRIVATE LIMITED ..... Petitioner Through: Mr. Alok Bhasin & Mr. Kamal Kant W.P.(C) 2034 2022 Tyagi Advocates ..... Respondent MOHD. NIZAM JUSTICE PRATHIBA M. SINGH Through: None Prathiba M. Singh J.(Oral) This hearing has been done through video conferencing. CM APPL. 5850 2022Allowed subject to all just exceptions. Application is disposed of. WP(C) 2034 2022 & CM APPL. 5849 2022The present writ petition challenges the impugned order dated 7th August 2020 in RCA No. 53 2019 titled Wearwell Pvt. Ltd. v. Mohd. Nizam passed by the D&SJ South East Saket Courts New Delhi hereinafter “Appellate Court”). Vide the impugned order the appeal against the order dated 29th November 2018 in PWA No. 73 2018 titled Mohd. Nizam v. M s Wear Well India Pvt. Ltd. passed by Addl. D&SJ POLC V Dwarka Courts Delhiunder the section 15(2) Payment of Wages Act 1936 has been partially set aside. The background of this petition is that the Respondent Workman hereinafter “Workman”) was working as a Tailor with Petitioner Management and the last drawn W.P.(C) 2034 2022 salary was Rs.11 830 . The Management claims that it had placed the Workman under suspension on 16th December 2017 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 dated 03rd May 2018 with the Management. Terms of the said settlement read as under: “1. The management will reinstate all the complainant workmen expect Sh. Kalim Sh. Hussain and Sh. Firoz with the continuity of service w.e.f. 04 05 2018. 2. The workmen have agreed that they will work with honesty and will maintain peace in the factory and will help to increase the production. factory 3. It has also been agreed between both the parties that the interest of peace and disputes claims complaints of bonus and contract Labour raised filed by them shall be deemed to have been withdrawn after this The management has also agreed to withdraw all the cases i.e. charge sheet suspension order police complaints against the workmen.” However disputes thereafter arose in respect of the amount payable as per the terms of the said settlement entered into before the Conciliation officer. This led to the Workman approaching the authority under section 15(2) of the Act. The said dispute was adjudicated by the Authority on 29th November 2018 by holding that a sum of Rs.3 01 466 would be payable to W.P.(C) 2034 2022 the Workman. The order reads as under: is held entitled “30. In view of the outcome of issue No.2 the to an amount of Rs.3 01 466 (b) of Payment of Wages Act 1936 the court hereby issue a direction to the ld. CMM Dwarka Court to recover the said amount of Rs. 3 01 466 as if it were a fine imposed by a Magistrate in terms of provisions of Section 421(a) of the Cr.P.C. 32. Petition accordingly stands Allowed.” The said order of the Authority was challenged before the ld. Single Judge of this Court in WP(C) 2349 2019 titled WearwellPvt. Ltd. v. Mohd. Nizam. The said writ petition was disposed of vide order dated 13th March 2019 while granting liberty to the Petitioner to approach the Appellate Court under the Act after depositing the amount of Rs.27 406 . The order reads as under: “2. This Court is satisfied that this case is similar to W.P.(C) 1698 2019 and the petitioner’s prayer for similar order is justified. In that view of the matter the petitioner is granted liberty to approach the Appellate Authority under the Act by depositing only the actual wages found due to the respondent under the impugned order. Upon depositing of the actual wages found due to the respondent the Appellate Authority shall consider the petitioner’s appeal on merits without insisting on pre deposit of the penalty amount.” In view of the order of the High Court the Petitioner approached the Appellate Court by way of an appeal under Section 17 of the Act. During the W.P.(C) 2034 2022 pendency of the said appeal the parties entered into a settlement dated 3rd May 2019 as per which the Respondent Workman agreed to accept a lumpsum amount to settle the said dispute. The terms of the said settlement are as under: “Terms of Settlement: 1. Mohd Nizam s o Mohd Mustafa by virtue of this settlement do hereby tender his resignation from service and relinquish his employment voluntarily and as such he shall have no dispute demand or claim of any kind left against the Management of Wear Well India Private Limited. In view of this amicable settlement reached by and between the parties all the claims of Mohd Nizam s o Mohd Mustafa including before the Payment of Wages Authority shall also be deemed to have been finally and fully settled. This settlement will supersede the order dated 29 11 2018 passed by the Payment of Wages Act Authority against which appeal is pending before the District Court. In view of this amicable settlement Mohd Nizam s o Mohd Mustafa shall not be entitled to the amount awarded by the Payment of Wages Authority vide order dated 29 11 2018 and as such they shall not be entitled to receive the amount of Rs. 27 406 deposited by means of a Pay Order before the Appellate Authority and as such Mohd Nizam s o Mohd Mustafa authorizes the Management to withdraw the same. It is further expressly agreed that this settlement is being signed by Mohd Nizam s o Mohd Mustafa voluntarily without any use of coercion and as such no union person or agent shall have the authority to challenge the same before any authority or court of law.” In lieu of the said settlement the Management’s case is that a sum of W.P.(C) 2034 2022 Rs.80 720 was paid to the Workman vide cheque no. 004370 dated 30th May 2019. Copy of the cheque is placed on record by the Management along with a bank statement reflecting the encashment of the said cheque. 10. Once the settlement was entered into the Management approached the Appellate Court for disposal of the appeal and for refund of the pre deposit amount of Rs.27 406 . However vide the impugned order the Appellate Court has merely set aside the penalty which was imposed and has held that the pre deposit amount cannot be refunded on the ground that the settlement has not been acknowledged and accepted by the Workman. Mr. Bhasin appearing for the Petitioner submits that the Appellate Court has erred in holding that since the Workman did not appear and confirm the settlement the amount of pre deposit would not be liable to be refunded. 11. Heard the ld. Counsel for the Management. A perusal of the record and the Appellate Court’s order shows that the Workman stopped appearing before the Appellate Court despite having notice of the appeal. It must be noted that the Management had placed the settlement dated 03rd May 2019 on record of the Appellate Court. However the Appellate Court has observed as under: “37. Considering the conduct of the Management and the workman and also the settlement it is not a case for imposition of any penalty and imposition of 10 times penalty on due wages in the sum of Rs. 27 406 amounting to Rs. 2 74 060 is without any basis and is hereby set aside. 38. It is submitted on behalf of the appellant that since the matter has already been amicably settled with the workman vide Settlement Deed dated 03.07.2019 and a sum of Rs. 27 406 have already been paid to him by way of cheque towards full W.P.(C) 2034 2022 respondent before and final settlement of his all the claims the sum of Rs. 27 406 which has been deposited in this Court as pre condition for hearing of the appeal may be refunded to the appellant. Copy of the Settlement Deed dated 03.07.2019 has already been filed on record but the respondent has not appeared in the Court despite service and there is no affirmation of this settlement by the respondent. The Court should have taken note of the settlement only if it had been acknowledged and accepted by circumstances the appellant cannot be allowed to refund a sum of Rs. 27 406 by the order of the Court in this appeal but the appellant is at liberty to get No Objection Certificate from the workman and seek refund as per law. 39. In view of the above discussion it is held that the appellant Management is liable to pay a sum of Rs. 27 406 as arrears of salary during the period of suspension from 16.12.2017 to 31.04.2018. However the compensation penalty amount in the sum of Rs.2 74 060 is hereby set aside. In view of the above the appeal is partly allowed.” the Court. 12. The reasoning of the Appellate Court is basically that since the Workman did not confirm the settlement agreement the settlement cannot be recorded by the Court while at the same time the Appellate Court set aside the penalty of Rs.2 74 060 imposed by the Authority on the basis of the very same settlement. 13. A perusal of Section 18(1) of the Industrial Disputes Act 1947 hereinafter “ID Act”) shows that a settlement can be arrived at between the parties otherwise than in the course of conciliation proceedings i.e. Section 18(1) ID Act clearly recognises out of Court settlement. Section 18(1) reads as under: W.P.(C) 2034 2022 “18. Persons on whom settlements and awards are binding 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 14. The Supreme Court in The State of Bihar v D.N.GangulyAIR 1958 SC 1018 held that Courts should take note of the amicable settlement in case between the parties in industrial disputes which generally leads to industrial peace and harmony. The observations of the Court are as under: “13. It is however urged that if a dispute referred to the industrial tribunal under section 10(1) is settled between the parties the only remedy for giving effect to such a compromise would be to cancel the reference and to take the proceedings out of the jurisdiction of the industrial tribunal. This argument is based on the assumption that the industrial tribunal would have to ignore the settlement by the parties of their dispute pending before it and would have to make an award on the merits in spite of the said settlement. We are not satisfied that this argument is well founded. It is true that the Act does not contain any provision specifically authorising the industrial tribunal to record a compromise and pass an award in its terms corresponding to the provisions of Order XXIII r. 3 of the Code of Civil Procedure. But it would be very unreasonable to assume that the industrial tribunal would insist upon dealing with the dispute on the merits even after it is informed that the dispute has been amicably settled between the parties. We have already indicated that amicable settlements of industrial disputes which generally lead to industrial peace and harmony are the primary object of this Act. Settlements reached before the conciliation officers or boards W.P.(C) 2034 2022 are specifically dealt with by sections 12(2) and 13(3) and the same are made binding under section 18. There can therefore be no doubt that if an industrial dispute before a tribunal is amicably settled the tribunal would immediately agree to make an award in terms of the settlement between the parties. It was stated before us at the bar that innumerable awards had been made by industrial tribunals in terms of the settlements between the parties. In this connexion we may incidentally refer to the provisions of section 7(2)(b) of the Industrial Disputes Act 1950 which expressly refer to an award or decision of an industrial tribunal made with the consent of the parties. It is true that this Act is no longer in force but when it was in force in providing for appeals to the Appellate Tribunal set up under the said Act the legislature had recognised the making of awards by the industrial tribunals with the consent of the parties. Therefore we cannot accept the argument that cancellation of reference would be necessary in order to give effect to the amicable settlement of the dispute reached by the parties pending proceedings before 15. The decision in D.N. Ganguly has been affirmed by the Supreme Court in National Engineering Industries Ltd. v State of Rajasthan AIR 2000 SC 469. The Court has held that: 25. It will be thus seen that High Court has jurisdiction to entertain a writ petition when there is allegation that there is no industrial dispute and none apprehended which could be subject matter of reference for adjudication to the Industrial Tribunal under Section 10 of the Act. Here it is a question of jurisdiction of the Industrial Tribunal W.P.(C) 2034 2022 which could be examined by the High Court in its writ jurisdiction. It is the existence of the industrial tribunal which would clothe the appropriate Government with power to make the reference and the Industrial Tribunal to adjudicate it. If there is no industrial dispute in existence or apprehended appropriate government lacks power to make any reference. A settlement of dispute between the parties themselves is to be preferred where it could be arrived at to industrial adjudication as the settlement is likely to lead to more lasting peace than an award. Settlement is arrived at by the free will of the parties and is a pointer to there being goodwill between them. When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account of fraud misrepresentation or concealment of facts or even corruption and other inducements it could be subject matter of yet another industrial dispute which an appropriate Government may refer for adjudication after examining the allegations as Conciliation Officer must be fair and reasonable. A settlement which is sought to be impugned has to be scanned and scrutinized. Sub sections and 3) of Section 18 divide settlements into two categories namely those arrived at outside the conciliation proceedings and those arrived at in the course of conciliation proceedings. A settlement which belongs to the first category has limited application in that it merely binds the the settlement belonging to the second category has extended application since it is binding on all the parties to the industrial disputes to all others who were proceedings and to all persons employed in the the help of is an underlying assumption the agreement but reached with to appear W.P.(C) 2034 2022 establishment or part of the establishment as the case may be to which the dispute related on the date of the dispute and to all others who joined the establishment thereafter. A settlement arrived at in the course of conciliation proceedings with a recognised majority union will be binding on all workmen of the establishment even those who belong to the minority union which has objected to the same. Recognised union having majority of members is expected to protect the legitimate interest of labour and enter into a settlement in the best interest of labour. This is with the object to uphold the sanctity of settlement reached with the active assistance of the Conciliation Officer and to discourage an Individual employee or minority union from scuttling the settlement. When a settlement is arrived at during the conciliation proceedings it is binding on the members of the Workers Union as laid down by Section 18(3)(d) of the Act. It would ipso facto bind all the existing workmen who are all parties to the industrial dispute and who may not be members of unions that are signatories to such settlement under Section 12(3) of the Act. Act is based on the principle of collective bargaining for resolving industrial disputes and for maintaining industrial peace. "This principle of industrial democracy is the bedrock of the Act" as pointed out in the case of P. Virudhachalam v. Management of Lotus Mills MANU SC 0890 1998: ILL J389SC. In all these negotiations based on collective individual workman recedes to the background. Settle merits will encompass all the disputes existing at the time of the settlement except those specifically left out.” 16. A perusal of the above two decisions shows that settlements entered into in Industrial Disputes are valid and legal even though provisions W.P.(C) 2034 2022 similar to Order XXIII Rule 3 CPC do not exist in the ID Act. Settlements can be entered into between Management and Workman even outside the court conciliation proceedings as is clear from Section 18(1) ID Act. Such settlements would be valid and legal. 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. The usual procedure for recording a settlement would be that parties would file an application and appear before the court and confirm the settlement. However in a case where one party chooses not to appear and not to confirm the settlement the Court would have to consider as to whether settlement has in fact been arrived at or not and if the Court is satisfied that the settlement has been arrived at there is no reason as to why the Court should not accept the settlement and despite the settlement again go into the merits of the matter. Purpose of providing such provisions of settlement is that there is finality to the settlement and parties should not be relegated to continue to avail of their legal remedies leading to delays involving expending of precious judicial time. In the present petition it is noticed that a sum of Rs.27 406 was merely a pre condition for hearing of the appeal by way of a pre deposit. The bank of the Management viz. HDFC bank has certified that the amount of Rs.80 720 has been encashed by the Workman. To this Court there is no doubt that the settlement has been signed by the Workman as there is no allegation of forgery or fabrication. The present case would be a settlement in terms of Section 18(1) ID Act and as per the above decision would be binding on the parties. W.P.(C) 2034 2022 18. Advance copy of this petition is sent to the Workman by Speed Post. The receipt has been placed on record. However there is no appearance on behalf of the Workman. The Workman did not appear even before the Appellate Court to confirm the settlement. Since the Workman has affixed his signature to the settlement agreement and has also encashed the cheque issued by the Management this Court finds no reason as to why the settlement should not be taken note of and recorded. 19. Moreover in the opinion of this Court no useful purpose would be served in again issuing notice to the Workman inasmuch as it appears to this Court that the Workman is satisfied with the settlement and does not wish to incur further costs. 20. Accordingly the impugned order is set aside. The amount of Rs.27 406 deposited with the Appellate Court is directed to be refunded to the Petitioner Management in view of the settlement. If the workman has any dispute in respect of the settlement liberty is granted to the workman to approach the Appellate Court. 22. The petition is disposed of in above terms. The pending application is also disposed of. FEBRUARY 2 2022 PRATHIBA M. SINGH W.P.(C) 2034 2022

Obtaining consent for sexual intercourse upon false promise to marry and misconception of facts is not free consent : Bombay High Court

The issue with obtaining consent based upon some form of misconception was  of the recently dealt with by Bombay High Court in a case where the consent of an unwilling victim for sexual was obtained by the applicant on the pretext of marriage .The bench consisted of Justice AS Chandurkar and  Justice GA Sanap  in the matters between  Navneet Ashok Bangalkar v. State of Maharashtra & Anr. Crl Apl No.- 853 of 2021 decided on 22.12.2021. The facts of the case are that the victim and accused are engaged to be married but their marriage was postponed as she was diagnosed with COVID -19.The accused later threw party where the victim consented to engage in sexual intercourse with the accused only because he assured her of getting married in few days.Later, the accused began to neglect and avoid the victim and asked for time to fix the date of their marriage.The family of the accused said that they are not interested to go ahead with the wedding as the victim is addicted to liquor and her mental condition is not good.Moreover, the accused states that he received unknown call threatening him to call off the wedding and the victim does not seem interested in him and and they are incompatible with themselves. The contentions of the accused were that the FIR prima facie do not indicate that the accused engage in sexual intercourse based upon such promise and section 376 would not be attracted as it is not sufficient to only establish sexual relationship with the victim .There is no evidence to establish complicity of the accused in the crime. The contentions of the victim were that prime face offence has been made out of the facts and material evidences found during investigation.Consent obtained based on misconception of facts and false promise to marry amounts to absence of consent and such consent would not excuse the offender under section 376 of IPC. The Bombay High Court held that the court dismissed the compatibilty argument made by the applicant, considering his change of mind regarding annulment of the wedding occurred after he had had sexual intercourse with the complainant. The relevant facts in the FIR showed that he had sexual intercourse with the complainant under the guise of false promise to marry in the future and the applicant’s intent was sinister. The court also stated that this did not appear to be a simple case of cheating, it was cheating with the crime of serious rape and secret intention not to marry the applicant after sexual lust has been satisfied.The application was rejected and dismissed, directing to continue with the interim order.

30 J APL 853 21.odt viIN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH NAGPUR CRIMINAL APPLICATIONNO. 853 OF 2021 APPLICANT Navneet S o Ashok Bangalkar Aged 29 years Occ. Business R o at Post Asgaon Tq. Pauni Dist. Bhandara V E R S U S 1. State of Maharashtra Through P.S.O. P.S. Umred Tq. Umred Dist. Nagpur 2. Ku. Ankita Purushottam Morghade Aged 27 Years Occ. Service R o Plot No. 126 Siddheshwar Wadi Near Navmaharashtra School Kharbi Road Nagpur Tq. and Dist. Nagpur ... NON APPLICANTS Shri J. B. Gandhi Advocate for applicant Mrs. S. S. Jachak Additional Public Prosecutor for non applicant No.1 Shri S. V. Deshmukh Advocate for non applicant No.2 CORAM : A.S. CHANDURKAR AND G. A. SANAP JJ DATED : 22 12 2021 JUDGMENT :and prayed to quash and set aside the First Information Report No.0573 2021 dated 01 08 2021 registered at Umred Police Station Nagpur for the offencecs punishable under Sections 376 and 417 of the Indian Penal 30 J APL 853 21.odt Codefor calling off the marriage. The applicant and his family members did not succumb to the illegal demand. It is stated that the false report has been lodged. No case has been made out on the basis of the report to sustain the prosecution against the applicant. No offence is made out under Sections 376 or Section 417 of the I.P.C. The applicant therefore prayed for quashing the First Information Report The Investigating Officer has filed reply and opposed the application. In his reply the facts stated by the non applicant No.2 in the First Information Report have been reiterated. Besides it is contended that the investigation conducted so far reveals the complicity of the applicant accused in the commission of crime. The Medical Officer has stated that the sexual intercourse cannot be ruled out. There is prima facie material to establish the involvement of the applicant in crime 30 J APL 853 21.odt The non applicant No.2 has filed reply and opposed the application. In the reply the non applicant No.2 has reiterated the facts stated in the First Information Report. She has stated that after having sexual intercourse on the false promise to marry in near future on 01 06 2021 the applicant had sexual intercourse with her. Her consent was obtained under false promise. It is further contended that the detailed complaint was later on made to A.P.I. Umred Police Station Rural) on 24 09 2021. The friend of applicant accused by name Nitin Yenurkar made phone calls to the non applicant No.2. She recorded the conversation. The transcript of the conversation is annexed to the reply We have heard the learned Advocate for the applicant accused the learned Additional Public Prosecutor for the non applicant No.1 State and the learned Advocate for the non applicant No.2. We have perused the record and 30 J APL 853 21.odt The learned Advocate for the applicant accused submitted that the allegations made in the First Information Report do not on their face indicate that the promise of the applicant was false or that the complainant engaged in sexual relations on the basis of such promise. The learned Advocate submitted that since the intercourse was with the consent of the non applicant No.2 the offnece under Section 376 of the IPC would not at all get attracted. In the submission of the learned Advocate the material on record is not sufficient to establish that the applicant engaged in sexual relations with the non applicant No.2 on false promise to marry and she gave consent under misconception of fact. In order to substantiate his submission the learned Advocate has placed heavy reliance on the decisions in the cases of Pramod Suryabhan Pawar 1 and unreported decision in Criminal Application 9 SCC 608 2 AIR 2021 SC 1405 30 J APL 853 21.odt that there is no iota of evidence to establish the complicity of the applicant accused in the crime. The prosecution cannot be sustained on the basis of the facts stated in the First The learned Additional Public Prosecutor submitted that prima facie offence has been made out on the basis of the facts stated in the reply as well as on the basis of material collected during the course of investigation. The learned Additional Public Prosecutor submitted that in this case it is apparent on the face of record that the applicant accused established sexual relations with the non applicant No.2 on false promise to marry and as such the consent based on misconception of fact amounts to absence of consent. The learned Additional Public Prosecutor submitted that even prima facie analysis of the material placed on record does not support the case of the applicant accused. The learned Additional Public Prosecutor submitted that the previous and subsequent conduct of the applicant accused after the incident on 01 06 2021 would assume significance while deciding his 30 J APL 853 21.odt The learned Advocate for the non applicant No.2 relying upon the decisions in the cases of i] Anurag Soni Vrs State of Chhattisgarh reported in AIR1857 ii XYZ Vrs. State of Gujarat and another reported in10 SCC 337 iii] Vishal Ramnayan Singh Vrs. XYZ and another reported in 2019 ALL M.R. 3010 and iv] Criminal Application No.143 of 2021 (unreported submitted that the facts of this case are squarely covered by the law laid down in these decisions and as such the prayer made by the applicant accused cannot be granted. The learned Advocate submitted that the facts stated in the First Information Report and the conduct of the applicant accused proves that from the inception he gave false promise to the non applicant No.2 to marry when he did not have intention to marry her and the non applicant No.2 fell prey to the false 30 J APL 853 21.odt promise. It is held in these decisions that the consent given for sexual intercourse on false promise or assurance to marry could be said to be a consent obtained on misconception of fact and in such a case such consent would not excuse the offender and the offender is said to have committed a rape as defined under Section 375 of the IPC. The learned Advocate submitted that there was no due diligence on the part of the Investigating Officer. The learned Advocate pointed out that the non applicant No.2 repeatedly went to the Investigating Officer to hand over the relevant material including the recorded conversation with transcript. However there was no co operation from the Investigating Officer. The learned Advocate submitted that no case has been made out by the applicant to grant his prayer In the case of Pramod Pawarrelied upon by the learned Advocate for the applicant accused it is held that the consent based on misconception of fact is not a consent in the eye of law. The woman engaged in sexual relations on false 30 J APL 853 21.odt promise to marry clearly indicate that the consent is based on misconception of fact and such sexual act would amount to rape. It is held that the allegations made in the First Information Report on their face must indicate that the promise by the accused was false or that the prosecutrix engaged in sexual relations on the basis of such promise. If the First Information Report does not indicate that the accused did not make a promise to marry the prosecutrix in bad faith or with intention to deceive her then the accused can be saved from the prosecution by invoking the provisions of Section 482 of the Cr.P.C. This ratio has been followed in remaining Judgments relied upon by the learned Advocate for the applicant accused in support of his contention It is settled legal position that the powers under Section 482 of the Cr.P.C. can be exercised where the allegations made in the First Information Report even if they are taken on their face value and accepted in their entirety do not prima facie constitute any offence or make out a case 30 J APL 853 21.odt against the accused. If the uncontroverted allegations made in the First Information Report or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused then the accused cannot be made to undergo the rigmarole of the criminal trial. The inherent powers given under Section 482 of the Cr.P.C. is with the purpose and object of advancement of justice. If it is found that the solemn process of Court is sought to be abused by a person with some oblique motive the Court has to thwart the attempt at the very threshold. In the case of Vineet Kumar and others Vrs. State of Uttar Pradesh and another reported in13 SCC 369 it is held that the Court cannot permit prosecution to go on if the case falls in one of the categories as illustratively enumerated by this Court in the case of State of Haryana and others Vrs Bhajanlal and others reported in 1992 Supp.(1) SCC 335. It is settled legal position that where there are materials to indicate that the criminal proceeding is manifestly actuated with malafide and the proceeding is maliciously instituted with 30 J APL 853 21.odt an ulterior motive the High Court will not hesitate in exercise of its jurisdiction and discretion under Section 482 of the Cr.P.C. to quash the proceeding in the process of exercise of powers under Section 482 of the Cr.P.C. Prima facie evaluation of the facts stated in the First Information Report and other material is only permissible In order to consider the applicability of the law laid down to the facts of the case the relevant facts having bearing on the question involved in this proceeding need to be stated The marriage between the applicant and the non applicant No.2 was arranged marriage. It was settled in January 2021 The engagement ceremony took place on 22 02 2021. The non applicant No.2 has not attributed any allegation to the applicant accused about the sexual intercourse prior to the incident dated 01 06 2021. The date of marriage was fixed However to the utter misfortune of the non applicant No.2 the Covid 19 Pandemic constrained them to postpone the said marriage date twice. The facts stated in the First 30 J APL 853 21.odt Information Report as well as in the application of the applicant accused would show that till 02 06 2021 there was no dispute between the parties. The so called change of mind of the applicant accused occurred after establishing the sexual intercourse with the non applicant No.2 in the night of 01 06 2021. Therefore the conduct of the applicant accused before the incident dated 01 06 2021 and after 01 06 2021 would be required to be borne in mind The discretion is vested with this Court under Section 482 of the Cr.P.C. to pass an appropriate order in the given case to meet the ends of justice and to avoid the abuse of process of law. It is settled legal position that while deciding the application by exercising power under Section 482 of the Cr.P.C. for quashing the First Information Report the Court cannot venture into the arena of appreciation of the evidence It is pertinent to mention that while considering the application made by the accused for quashing the First Information Report if the Court finds that the exercise of 30 J APL 853 21.odt venturing into appreciation of the evidence would be warranted to decide the application one way or the other in our view the same would be indicator to conclude that the question falls outside the scope of exercise of discretion by the Court. The applicant accused has stated that the non applicant No.2 was not very much interested in him. She used to quarrel with him on small issues. He has stated that there was compatibility issue between the applicant and the non applicant No.2. The applicant therefore found it difficult to spend his entire life with the non applicant No.2. In our opinion this defence of the accused cannot be considered at this stage. This defence of the accused even if considered prima facie would indicate that this change of mind by the accused not to marry with the non applicant No.2 occurred after having established sexual relations with the non applicant No.2 on 01 06 2021. If really there was issue of compatibility then in that event the applicant accused would not have consciously decided to marry with the non applicant No.2. In our opinion this conduct of the applicant accused coupled 30 J APL 853 21.odt with the relevant facts narrated in the First Information Report would indicate that the applicant under the guise of false promise to marry in future with the non applicant No.2 established sexual intercourse with the non applicant No.2 Immediately after establishing the sexual relations in the night of 01 06 2021 and 02 06 2021 he changed his mind and started avoiding the non applicant No.2. In our view all these facts would not weigh in favour in the case of applicant accused. In this case the facts stated in the First Information Report and the conduct of the applicant would clearly show that the intention and the motive of the applicant was sinister. He established the sexual intercourse against the will of the non applicant No.2 by obtaining her consent under the promise to marry. In our view such a consent could not be said to be free consent. The consent given under the misconception of fact could not be said to be free consent. The prima facie analysis of the material placed on record clearly indicate that no case has been made out to quash and set aside the First Information Report 30 J APL 853 21.odt The non applicant No.2 as can be seen from the record annexed to the reply indicate that she believed the applicant and his family. She treated his parents as family members even before the marriage. This fact would show that she completely trusted applicant accused. The accused under the pretext of hosting the party on the eve of her birthday took the non applicant No.2 to the Resort and committed sexual intercourse with the non applicant No.2. In our view this is not a simple case of cheating. The cheating is coupled with the serious offence of rape. It can be gathered on the basis of the material that the applicant accused had hidden intention not to marry with the applicant once his sexual lust is satisfied. The intention of the accused to commit the offence in such cases has to be gathered from the totality of the facts conduct of the accused and other material on record. In our view looking at the facts of the case from any angle it would show that the case in question is not a fit case to quash the First Information 30 J APL 853 21.odt In this case the investigation is in progress. The learned Advocate for the non applicant No.2 submitted that on number of occasions the non applicant No.2 approached the Investigating Officer with the relevant material and particularly the recorded conversation with transcript which is placed on record but the Investigating Officer did not give positive response. The learned Additional Public Prosecutor submitted that the investigation is still going on. The Investigating Officer would conduct further investigation and go to the root of the matter. It is pertinent to mention that the electronic evidence needs to be collected and converted into legally admissible evidence by the Investigating Officer. The Investigating Officer cannot deny his obligation to collect the available evidence. In view of the submission made by the learned Additional Public Prosecutor we believe that the Investigating Officer would discharge his duty according to law. In view of the facts and circumstances and the law laid down in the Judgments relied upon by the learned Advocate for the applicant accused is of no help and assistance to the 30 J APL 853 21.odt case of the applicant. The law laid down in the Judgments cited by the learned Advocate for the non applicant No.2 fully supports the contention of the prosecution and the non applicant No.2. In view of this position we conclude that this is not a fit case to grant indulgence of the nature sought for by the applicant accused. In view of the facts and serious nature of offence we are not inclined to exercise jurisdiction under Section 482 of the Code of Criminal Procedure. The application therefore deserves to be dismissed. Hence the following order : The application is rejected ii] The interim order granted on 27 08 2021 shall continue to operate for a period of four weeks and cease to operate thereafter automatically (A.S. CHANDURKAR J

Deficiency in service if builder fails to obtain occupancy certificate: Supreme Court

The issue whether a builder or construction company can be held liable for not obtaining occupancy certificate was examined by Supreme Court in a division bench consisting of Justice Chandrachud and Justice Surya Kant in the matters between Samruddhi Co- Operative Housing vs. Mumbai Mahalaxmi Construction Criminal Appeal No.- 4000 of 2019 decided on 11.1.2022. The facts of the case are complainant rented the flat of the other party in 1993 and bought it in 1997. therefore, the members of the complaining association have to collect a higher rate of additional tax, especially property tax and water fees amounting to Rs.2,60,73,475/. At the application stage, he listened to the lawyer learned for the complainant and examined the report. A complaint was filed by the Appellant for a refund of the excess taxes and duties paid to the municipal authorities due to the Defendant’s alleged lack of service.However, the NCDRC dismissed the complaint on the ground that it was unsustainable because it was barred by limitation and not a consumer dispute. The NCDRC determined that cause of action arose when municipal officials asked the appellant to pay higher fees in the first instance and therefore, a complaint must be filed within two years of the cause of action accruing. The appellants contended that cause of action is of a continuing nature as the members of the appellant continue to pay higher fees due to the defendant’s failure to present occupancy certificate. The respondents contended that prior to the order of the SCDRC, the defendant offered to pay an amount of Rs. 1 crore as a one-time settlement amount for payment of additional fees or penalty incurred by the appellant for increased property tax and water fee. The appellant is not a consumer under the provisions of the Consumer Protection Act, as they are requesting a reinstatement. higher wages paid from the defendant to municipal officials. Furthermore, the defendant is not a service provider for water or electricity and therefore the complaint cannot be sustained. The Apex court held in section 24A of the Consumer Protection Act 1986 provides for the statute of limitations for filing a complaint, and a complaint to a consumer forum must be made within two years of the date on which the cause of action arose. MOFA imposes certain general obligations on an organizer. These obligations include, among others, disclosure of the nature of ownership of the land, obligations on the land, fixtures, fittings and amenities, and not giving possession of an apartment unless a certificate of completion is issued by the local government.The responsibility for obtaining a certificate of occupancy from the local authority is also imposed over the appellant according to the sales contract. Receiving the Document had a direct impact on the members of the appellant in terms of paying higher taxes and water charges to the municipality, as Judge Chandrachud, speaking on behalf of the Court, did not comply with the respondent’s request. Pursuant to the Maharashtra Ownership Flats Act 1963 and means an continuing wrong, and therefore the appellants have the right to claim damages resulting from this continuing wrongdoing and limit complaints. An appeal against the order of NCDRC was allowed and the complaint was held to be sustained.

Samruddhi Co Operative Housing ... vs Mumbai Mahalaxmi Construction ... on 11 January 2022 Supreme Court of India Samruddhi Co Operative Housing ... vs Mumbai Mahalaxmi Construction ... on 11 January 2022 Author: Hon Ble Dr. Chandrachud Bench: Hon Ble Dr. Chandrachud Surya Kant Reportable IN THE CIVIL APPELLATE JURISDICTION Civil Appeal No 40019 Samruddhi Co operative Housing Society Ltd. Appellant Versus Mumbai Mahalaxmi Construction Pvt. Ltd. Respondent Signature Not Verified Digitally signed by 1 cid:12) JUDGMENT Dr Dhananjaya Y Chandrachud J A Factual Background 3 B Submissions of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 C A n a l y s i s 9 D Conclusion 17 PART A A Factual Background 1 The appeal arises from a judgment and order of the National Consumer Disputes Redressal Commission 1 dated 3 December 2018. The complaint was filed by the appellant for refund of the excess taxes Indian Kanoon Samruddhi Co Operative Housing ... vs Mumbai Mahalaxmi Construction ... on 11 January 2022 and charges paid the appellant to the municipal authorities due to the alleged deficiency of service of the respondent. By the impugned order the NCDRC dismissed the complaint on the ground that it was barred by limitation and that it was not maintainable since it was in the nature of a recovery proceeding and not a consumer dispute. 2 The appellant is a co operative housing society. The respondent constructed Wings A and B and entered into agreements to sell flats with individual purchasers in accordance with the Maharashtra Ownership FlatsAct 1963 2. The members of the appellant booked the flats in 1993 and were granted possession in 1997. According to the appellant the respondent failed to take steps to obtain the occupation certificate from the municipal authorities. In the absence of the occupation certificate individual flat owners were not eligible for electricity and water connections. Due to the efforts of the appellant temporary water and electricity connections were granted by the authorities. However the members of the appellant had to pay property tax at a rate 25% higher than the normal rate and water charges at a rate which was 50% higher than the NCDRC MOFA PART A 3 On 8 July 1998 the appellant instituted a consumer complaint before the State Consumer Disputes Redressal Commission Mumbai 3 seeking a direction to the respondent to obtain the occupation certificate. On 7 April 2014 the respondent made an offer of a one time settlement to the appellant which the appellant refused by a letter dated 18 April 2014 as it was allegedly lower than the amount owed by the respondent. By its judgment and order dated 20 August 2014 the SCDRC directed the respondent to obtain an occupancy certificate within four months. The SCDRC also directed the respondent to pay inter alia Rs. 1 00 000 towards reimbursement of extra water charges paid. 4 On 28 December 2015 the appellant sent a legal notice to the respondent demanding the payment of outstanding dues in an amount of Rs 3 56 42 257 . The respondent failed to comply with the demand. Thereafter the appellant filed an application for execution of the order of the SCDRC dated 20 August 2014. The appellant also filed a complaint 4 before the NCDRC seeking payment of Rs. 2 60 73 475 as reimbursement of excess charges and tax paid by the members of the appellant due to the deficiency in service of the respondent and Rs. 20 00 000 towards the mental agony and inconvenience caused to the members of the appellant 5 Before the NCDRC the appellant claimed that the complaint was not barred by limitation as the payment of excess water usage charges and the non issuance of occupancy certificate is a continuing cause of action. Even otherwise the cause of action was stated to have arisen on 7 April 2014 when the SCDRC CC No. 13216 PART A respondent allegedly acknowledged its liability and agreed to pay an amount of Rs. 1 crore in settlement. The cause of action was also alleged to have arisen on 15 December 2015 when the respondent failed to pay the amount demanded by the appellant. Thus the complaint was according to the appellant filed within the prescribed period of limitation under Section 24A of the Consumer Protection Act 1986 6 By the impugned order the NCDRC held that the complaint was barred by limitation as i) The members of the appellant booked the flats in 1993 and obtained possession in 1997 which they have continued to enjoy since then. The possession was obtained against the law as no Indian Kanoon Samruddhi Co Operative Housing ... vs Mumbai Mahalaxmi Construction ... on 11 January 2022 occupancy certificate had been provided by the respondent builder ii) The cause of action arose at the time when the appellant made efforts to obtain individual water and electricity connections and the municipal authorities ordered the members to pay higher charges. The complaint should have been filed within two years of the accrual of the cause of action iii) Since the cause of action arose on the date when the municipal authorities demanded payment of higher taxes and charges the period of limitation also commenced from this date and cannot be extended by the communication between parties iv) With respect to the claim that there was a continuing cause of action due to non availability of the occupancy certificate no relief was sought by the appellant in their complaint regarding the obtaining of an occupancy PART B certificate. The only relief which was sought is a refund of Rs 2.60 crores for payment of higher taxes 7 On the merits of the dispute the NCDRC observed that the complaint was filed for refund of the excess amount paid by the appellant to the authorities. In essence the complaint was filed for recovery of this excess amount from the respondent. The NCDRC held that the respondent was not the service provider of the services for which the property tax or water charges were levied. Since these services were provided by the municipal authorities the NCDRC held that the appellant would not fall under the definition of consumer under Section 2(1)(d) of the Consumer Protection Act 1986. Thus the NCDRC dismissed the complaint as being barred by limitation and as being not maintainable under the Consumer Protection Act 1986 8 Mr Sunil Fernandes counsel for the appellant urged the following B Submissions of Counsel i) There is a continuing cause of action in the present case as the respondent has failed to provide the occupancy certificate ii) Due to the failure of the respondent to obtain the occupancy certificate the members of the appellant have had to pay a 25% higher amount on account of the property tax and an additional 50% towards the water charges iii) Under Section 6 of the MOFA it is the duty of the builder to provide the occupancy certificate to the society which the respondent has failed to fulfil Indian Kanoon Samruddhi Co Operative Housing ... vs Mumbai Mahalaxmi Construction ... on 11 January 2022 iv) Prior to the order of the SCDRC the respondent offered to pay an amount of Rs. 1 crore as a one time settlement amount towards payment of the extra charges or penalty incurred by the appellant for the increased property tax and water charges v) The offer of a one time settlement had no relation to the complaint pending before the SCDRC as the relief claimed before the SCDRC was for the grant of an occupancy certificate and payment of penalty to the appellant for excess charges and deficiencies vi) When the residents started residing in the societys premises they had to incur increased amount towards the property tax and water charges. These charges were levied on an annual basis and continue to be raised due to the failure of the respondent to obtain an occupancy certificate vii) The conduct of the respondent has been improper. The respondent has not obtained the occupancy certificate even twenty four years after giving possession and has not complied with the order of the SCDRC dated 20 August 2014. Due to the failure of the respondent to comply with the order of the SCDRC non bailable warrants have been issued against the respondent and viii) Under the MOFA and the agreement to sell with the members of the appellant the respondent has an obligation to obtain the occupancy certificate. Due to the deficiency in service the members of the appellant PART B have had to make excess payment. Thus the appellant is a consumer under the Consumer Protection Act 1986 9 Opposing these submissions Mr Atul Babasaheb Dakh appearing on behalf of the respondent i) When the construction of the project was completed in 1997 the respondent applied for an occupancy certificate. However the respondent did not offer possession to the flat purchasers ii) The members of the appellant society took possession of their flats to refurbish the interiors and to make suitable arrangements till the occupancy certificate was issued. Instead they started occupying the premises and made arrangements for water and electricity by paying additional iii) The members of the appellant made unauthorized constructions due to which there was a delay in obtaining the occupancy certificate iv) The proposal for one time settlement in 2014 did not pertain to the additional property tax and water charges v) In the consumer complaint filed by the appellant in 1998 the appellant had raised the issue of excessive water charges and the SCDRC had directed payment of Rs. 1 00 000 to them. On 2 May 2016 the appellant society received an amount of Rs. 11 55 885 in the proceedings for execution of the order dated 20 August 2014 of the SCDRC Indian Kanoon Samruddhi Co Operative Housing ... vs Mumbai Mahalaxmi Construction ... on 11 January 2022 vi) The complaint is barred by limitation as the cause of action arose in 1997 and the complaint was filed 18 years later vii) The appellants failure to incorporate their present grievances in the prior complaint before the SCDRC indicates relinquishment of their grievances viii) Under Section 6 of the MOFA the builder is entitled to pay all outgoing charges till the grant of possession. The members of the appellant received possession in 1997 and there is no claim for an amount due till 1997 ix) Section 12 of the MOFA provides that it is the liability of the flat purchasers to pay municipal taxes and water and electricity charges x) The respondent is not a service provider of water supply and has not received any payment for water and property tax. Thus the appellant is not a consumer under the Consumer Protection Act 1986 and the complaint is not maintainable and xi) There is no privity of contract between the parties for payment of extra charges in the absence of an occupancy certificate C Analysis 10 The crux of the appeal revolves around the maintainability of the complaint and whether it is barred by limitation. The NCDRC held that the cause of action arose when the municipal authorities asked the appellant to pay higher charges in the first instance and thus a complaint should have been filed within two years of the accrual of the cause of action. The appellant however has argued that the cause of action is of a continuing nature since members of the appellant have PART C continued paying higher charges as the respondent failed to provide the 11 Section 24A of the Consumer Protection Act 1986 provides for the period of limitation period for lodging a complaint. A complaint to a consumer forum has to be filed within two years of the date on which the cause of action has arisen. In the instant case the appellant has submitted that since the cause of action is founded on a continuing wrong the complaint is within limitation. 12 Section 22 of the Limitation Act 1963 5 provides for the computation of limitation in the case of a continuing breach of contract or tort. It provides that in case of a continuing breach of contract a fresh period of limitation begins to run at every moment of time during which the breach continues. This Court in Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneshwar Maharaj Sansthan6 elaborated on when a continuous cause of action arises. Speaking for the three judge Bench Justice PB Gajendragadkarobserved that 31.Does the conduct of the trustees amount to a continuing wrong under Section 23 That is the question which this contention Indian Kanoon Samruddhi Co Operative Housing ... vs Mumbai Mahalaxmi Construction ... on 11 January 2022 raises for our decision. In other words did the cause of action arise de die in diem as claimed by the appellants In dealing with this argument it is necessary to bear in mind that Section 23 refers not to a continuing right but to a continuing wrong. It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete there is no continuing wrong even though the damage resulting from the act may continue. If however a wrongful act is of such a character that the injury caused by it itself continues then the act constitutes a 22. Continuing breaches and torts.In the case of a continuing breach of contract or in the case of a continuing tort a fresh period of limitation begins to run at every moment of the time during which the breach or the tort as the case may be continues. AIR 1959 SC 798 PART C continuing wrong. In this connection it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury. It is only in regard to acts which can be properly characterised as continuing wrongs that Section 23 can be invoked emphasis supplied) The Court held that the act of the trustees to deny the rights of Guravs as hereditary worshippers and dispossessing them through a decree of the court was not a continuing wrong. Although the continued dispossession caused damage to the appellants the injury to their rights was complete when they were evicted 13 In CWT v. Suresh Seth 7 a two judge Bench of this Court dealt with the question of whether a default in filing a return under the Wealth Tax Act amounted to a continuing wrong. Justice ES Venkataramiahobserved that 11.The distinctive nature of a continuing wrong is that the law that is violated makes the wrongdoer continuously liable for penalty. A wrong or default which is complete but whose effect may continue to be felt even after its completion is however not a continuing wrong or default. It is reasonable to take the view that the court should not be eager to hold that an act or omission is a continuing wrong or default unless there are words in the statute concerned which make out that such was the intention of the legislature. In the instant case whenever the question of levying penalty arises what has to be first considered is whether the assessee has failed without reasonable cause of file the return as required by law and if it is held that he has failed to do so then penalty has to be levied in accordance with the measure provided in the Act. When the default is the filing of delayed return the penalty may be correlated to the time lag between the last day for filing it without penalty and the day on which it is filed and the quantum of tax or wealth involved in the case for purposes of determining the quantum2 SCC 790 PART C of penalty but the default however is only one which takes place on the expiry of the last day for filing the return without penalty and not a continuing one. The default in question does not however give rise to a fresh cause of action every day. Explaining the expression a continuing cause of action Lord Lindley in Hole v. Chard Union1 Ch D 293 63 LJ Ch 469 : 70 LT 52] observed What is a continuing cause of action Speaking accurately there is no such thing but what is called a continuing cause of action is a cause of action which arises from the Indian Kanoon Samruddhi Co Operative Housing ... vs Mumbai Mahalaxmi Construction ... on 11 January 2022 repetition of acts or omissions of the same kind as that for which the action was brought.The Court further provided illustrations of continuous 17. The true principle appears to be that where the wrong complained of is the omission to perform a positive duty requiring a person to do a certain act the test to determine whether such a wrong is a continuing one is whether the duty in question is one which requires him to continue to do that act. Breach of a covenant to keep the premises in good repair breach of a continuing guarantee obstruction to a right of way obstruction to the right of a person to the unobstructed flow of water refusal by a man to maintain his wife and children whom he is bound to maintain under law and the carrying on of mining operations or the running of a factory without complying with the measures intended for the safety and well being of workmen may be illustrations of continuing breaches or wrongs giving rise to civil or criminal liability as the case may be de die in diem. 14 In M. Siddiq v. Suresh Das 8 a Constitution Bench of this Courtwas a part) examined the precedents with regards to a continuing wrong. The Court 343. The submission of Nirmohi Akhara is based on the principle of continuing wrong as a defence to a plea of limitation. In assessing the submission a distinction must be made between the source of a legal injury and the effect of the injury. The source of a legal injury is founded in a breach of an obligation. A continuing wrong arises where there is an obligation imposed by law 1 SCC 1 PART C agreement or otherwise to continue to act or to desist from acting in a particular manner. The breach of such an obligation extends beyond a single completed act or omission. The breach is of a continuing nature giving rise to a legal injury which assumes the nature of a continuing wrong. For a continuing wrong to arise there must in the first place be a wrong which is actionable because in the absence of a wrong there can be no continuing wrong. It is when there is a wrong that a further line of enquiry of whether there is a continuing wrong would arise. Without a wrong there cannot be a continuing wrong. A wrong postulates a breach of an obligation imposed on an individual whether positive or negative to act or desist from acting in a particular manner The obligation on one individual finds a corresponding reflection of a right which inheres in another. A continuing wrong postulates a breach of a continuing duty or a breach of an obligation which is of a continuing nature.Hence in evaluating whether there is a continuing wrong within the meaning of Section 23 the mere fact that the effect of the injury caused has continued is not sufficient to constitute it as a continuing wrong. For instance when the wrong is complete as a result of the act or omission which is complained of no continuing wrong arises even though the effect or damage that is sustained may enure in the future. What makes a wrong a wrong of a continuing nature is the breach of a duty which has not ceased but which continues Indian Kanoon Samruddhi Co Operative Housing ... vs Mumbai Mahalaxmi Construction ... on 11 January 2022 to subsist. The breach of such a duty creates a continuing wrong and hence a defence to a plea of limitation.15 A continuing wrong occurs when a party continuously breaches an obligation imposed by law or agreement. Section 3 of the MOFA imposes certain general obligations on a promoter. These obligations inter alia include making disclosures on the nature of title to the land encumbrances on the land fixtures fittings and amenities to be provided and to not grant possession of a flat until a completion certificate is given by the local authority. The responsibility to obtain the occupancy certificate from the local authority has also been imposed under PART C the agreement to sell between the members of the appellant and the respondent on the latter 16 Section 6 of the MOFA make the promoter responsible for payments of outgoings till the property is transferred. Section 6 reads as follows A promoter shall while he is in possession and where he collects from persons who have taken over flats or are to take over flats sums for the payment of outgoings even thereafter pay all outgoingsuntil he transfers the property to the persons taking over the flats or to the organisation of any such persons to the authority or person to whom they are payable and to be responsible for any legal proceedings which may be taken therefor by such authority or persons.]17 Sections 3 and 6 of the MOFA indicate that the promoter has an obligation to provide the occupancy certificate to the flat owners. Apart from this the promoter must make payments of outgoings such as ground rent municipal taxes water charges and electricity charges till the time the property is transferred to the flat owners. Where the promoter fails to pay such charges the promoter is liable even after the transfer of property PART C 18 Based on these provisions it is evident that there was an obligation on the respondent to provide the occupancy certificate and pay for the relevant charges till the certificate has been provided. The respondent has time and again failed to provide the occupancy certificate to the appellant society. For this reason a complaint was instituted in 1998 by the appellant against the respondent. The NCDRC on 20 August 2014 directed the respondent to obtain the certificate within a period of four months. Further the NCDRC also imposed a penalty for any the delay in obtaining the occupancy certificate beyond these 4 months. Since 2014 till date the respondent has failed to provide the occupancy certificate. Owing to the failure of the respondent to obtain the certificate there has been a direct impact on the members of the appellant in terms of the payment of higher taxes and water charges to the municipal authority. This continuous failure to obtain an occupancy certificate is a breach of the obligations imposed on the respondent under the MOFA and amounts Indian Kanoon Samruddhi Co Operative Housing ... vs Mumbai Mahalaxmi Construction ... on 11 January 2022 to a continuing wrong. The appellants therefore are entitled to damages arising out of this continuing wrong and their complaint is not barred by limitation. 19 The NCDRC in its impugned order has held that the cause of action arose when the municipal authorities ordered the payment of higher taxes in the first instance. Further the impugned order also states that the present complaint is barred by limitation as there is no prayer for supply of occupancy certificate. We are unable to subscribe to the view of the NCDRC on both counts. Undoubtedly the continuing wrong in the present case is the failure to obtain the occupancy certificate. Against this act of the respondent the appellant society has taken appropriate action by filing a complaint before the consumer forum. The appellant PART C is currently pursuing the execution of the order of the SCDRC arising from that complaint. However that itself does not preclude it from claiming compensation for the consequences which have arisen out of this continuing wrong. The failure to obtain the occupancy certificate has resulted in the levy of higher taxes on the members of the appellant society repeatedly by the municipal authorities. Despite the order of 20 August 2014 the respondent has failed to obtain the occupancy certificate. This has resulted in a situation where the appellant despite having followed the correct course of litigation in demanding the furnishing of an occupancy certificate will continue to suffer the injury inflicted by the respondent merely due to the delay in the execution of the order against the respondent. Rejecting the complaint as being barred by limitation when the demand for higher taxes is made repeatedly due to the lack of an occupancy certificate is a narrow view which is not consonance with the welfare objective of the Consumer Protection Act 1986 20 We shall now briefly advert to the finding of the NCDRC on the merits of the dispute. The NCDRC has held that the appellant is not a consumer under the provisions of the Consumer Protection Act as they have claimed the recovery of higher charges paid to the municipal authorities from the respondent. Extending this further the NCDRC has observed that the respondent is not the service provider for water or electricity and thus the complaint is not maintainable 21 Section 2(1)(d) of the Consumer Protection Act defines a consumer as a person that avails of any service for a consideration. A deficiency is defined under Section 2(1)(g) as the shortcoming or inadequacy in the quality of service PART D that is required to be maintained by law. In its decisions in Wing Commander Arifur Rahman Khan & Others v. DLF Southern Homes Private Limited Others 9 and Pioneer Urban Land Infrastructure Limited v. Govindan Raghavan 10 this Court has held that the failure to obtain an occupancy certificate or abide by contractual obligations amounts to a deficiency in service. In Treaty Construction v. Ruby Tower Cooperative Housing Society Ltd 11 the Court also considered the question of awarding compensation for not obtaining the certificate. In that case the Court declined to award damages as there was no cogent basis for holding the appellant liable for compensation and assessing the quantum of compensation or assessing the loss to the members of the respondent society 22 In the present case the respondent was responsible for transferring the title to the flats to the society along with the occupancy certificate. The failure of the respondent to obtain the occupation certificate is a deficiency in service for which the respondent is liable. Thus the members of the appellant society are well within their rights as consumers to pray for compensation as a recompense for the consequent liabilityarising from the lack of an occupancy certificate Indian Kanoon Samruddhi Co Operative Housing ... vs Mumbai Mahalaxmi Construction ... on 11 January 2022 D Conclusion 23 For the above reasons we allow the appeal against the order of the NCDRC dated 3 December 2018 and hold that the complaint is maintainable. We direct the NCDRC to decide the merits of the dispute having regard to the16 SCC 5125 SCC 725New Delhi January 11 2022 Indian Kanoon

After an accused is released on Bail And some serious offences are invoked at a Later point of Time, there is no question Of seeking any Cancellation Of Bail: High Court of Bombay

The accused who has been granted bail is required to surrender and again apply for bail under the newly added offenses. A Single-Judge Bench comprising of Justice Mangesh S. Patil adjudicating the matter of NANA @ NARSING VISHWASRAO NAYAK AND OTHERS V. THE STATE OF MAHARASHTRA (CRIMINAL WRIT PETITION NO.221 OF 2021) dealt with the issue of whether to grant bail or not. In the present case, the petitioner is challenging the regular bail granted to them under the provision of Section 439 (2) of the Code of Criminal Procedure has been canceled, post a request put up by the prosecution, to add, in addition to the earlier sections under the Indian Penal Code, the offenses punishable under Sections 3 and 4 of the Maharashtra Control of Organized Crime Act, 1999 after a sanction under Section 21 of the MCOC Act was received. The Petitioner submitted that the petitioners were granted a regular bail and in the absence of any supervening circumstance or a breach of terms and conditions subject to which the bail was granted, it could not have been canceled. He would submit that merely because the provision of the MCOC Act was invoked at a later point of time that would not constitute a supervening circumstance. Liberty ought not to have been curtailed in the manner in which it had been done. There are circumstances to indicate that the petitioner is being falsely involved under a serious charge. There is material to prima facie demonstrate that the sanctioning authority was perhaps hand-in-gloves with the original informant. A tainted sanction is not a sanction in the eye of law. The Respondents strongly oppose the Writ Petitions and submit that invoking a serious charge at a later point of time is indeed a supervening circumstance, the cognizance of which ought to be taken for canceling the bail. It was also pointed out by the Respondents in such a fact situation where some aggravated offenses are invoked at a later point of time after granting of bail, a relief of cancellation of bail under Section 439 (2) of the Code of Criminal Procedure is not required and only permission to arrest the accused who has been granted bail is contemplated. The court held that in such a fact situation where some aggravated offenses are invoked at a later point of time after granting of bail, a relief of cancellation of bail under Section 439 (2) of the Code of Criminal Procedure is not required, and only permission to arrest the accused who has been granted bail is contemplated. Also, it relied on that, the accused who has been granted bail is required to surrender and again apply for bail under the newly added offenses. They would therefore submit that though there could be some error in articulating the prayer in the application whereby bail was sought to be canceled, the procedure being handmaid of justice, the impugned order can be read to mean that what was asked before the learned Judge and what was actually granted was merely a permission to arrest the petitioners.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.6485 OF 2020 Sunita w o Late Pradip Thakar Age : 45 years Occ : Household original resident of A p Bavi Tq.Washi Dist.Osmanabad Presently residing at A 3 Pranayraj Garden Gokulnagar Dhanori Pune Tq. & Dist.Pune VERSUS The State of Maharashtra General Administration Department Mantralaya Mumbai 32 Through its Secretary Scheduled Tribe Certificate Scrutiny Committee Aurangabad Division Through it’s Member Secretary The Manager Government Photozincographic Press and Photographic Expert to Government Maharashtra State 5 Photozinco Path Pune 411001 Tq. & Dist. Pune Advocate for the Petitioner : Shri Yeramwar Sushant C. AGP for the Respondents 1 to 3 State : Shri S.K. Tambe CORAM : RAVINDRA V. GHUGE S.G. MEHARE JJ Oral Judgment: DATE : 20th July 2021 Rule. Rule made returnable forthwith and heard finally by the consent of the parties The petitioner is the widow of an employee namely Pradip Thakar who belonged to “Thakar” Scheduled Tribe community. He was issued with the tribe certificate by the Executive Magistrate Kallam. On 01.03.1982 he was appointed as “Chaukidar” a post reserved for the Scheduled Tribe category with respondent No.3. He was promoted as “Supervisor” in 2009. He moved his application for seeking validation of his tribe claim through the respondent No.3 Employer to respondent No.2 Committee on 04.07.2013. Before the Committee could decide his claim he passed away on 06.11.2019 while being in employment In the above backdrop the petitioner widow moved applications dated 24.12.2019 02.03.2020 and 24.08.2020 to the respondent authorities seeking release of the family pension and payment of all retiral benefits like provident fund gratuity leave encashment medical reimbursement overtime etc.. It is contended by the petitioner that respondent No.3 orally intimated her that as her husband was appointed on a post reserved for the Scheduled Tribe category and since he did not submit his validity certificate steps to grant family pension cannot be taken until such validity certificate is produced. The petitioner then made request applications to respondent No.2 Committee on 08.07.2020 and 27.07.2020 seeking a decision on her late husband’s pending claim On 05.08.2020 respondent No.2 Committee closed the file of the petitioner’s husband since he had passed away It is further contended in the petition that the petitioner’s daughter namely Shweta had made an application on 08.07.2020 to respondent No.3 praying for compassionate appointment. By the communication dated 10.08.2020 respondent No.3 informed her that as her father had not tendered the validity certificate of belonging to Thakar tribe her application for compassionate appointment needs to be kept pending in view of the Government Resolution dated 15.06.2020 The learned AGP submits that this petition is not an adversarial litigation to the Government. As the husband of the petitioner did not tender the validity certificate the respondent authorities are helpless This Court had issued notice on 22.09.2020. On 17.02.2021 this Court recording the contentions of the petitioner had directed the respondents to process the papers for grant of provisional pension as the claim of the petitioner for family pension could not be ignored We find that this Court has delivered a judgment at Aurangabad on 12.08.2010 in Writ Petition No.3718 1994 filed by Prakash Fulchand Barwal since deceased through his Legal Heirs Smt.Shobhabai Barwal and others vs. The State of Maharashtra and others. In the said judgment this Court noted that the petitioner was appointed as a Peon against the post reserved for the Scheduled Tribe category. The Committee had invalidated the claim of the petitioner by order dated 30.09.1989. On account of such invalidation the service of the deceased petitioner was terminated vide order dated 10.12.1989. The petitioner preferred an appeal against the order of invalidation which was dismissed by the concerned appellate authority on 27.10.1993. Thereafter the deceased petitioner had preferred Writ Petition before this Court While dealing with the claim of Prakash Barwalthis Court recorded in paragraphs 4 5 and 6 as under : During pendency of the writ petition the original petitioner has died and his legal heirs are brought on record. Since the original petitioner has already died the question regarding his claim of belonging to scheduled tribe does not arise. The legal heirs of the original petitioner have restricted the claim in the present petition only for grant of family The petitioner was originally appointed on 18.07.1988. By virtue of interim order passed in the year 1994 the petitioner was directed to be reinstated. The original petitioner has died on 05.12.2003. Considering the date of appointment of the original petitioner to be 11 18.07.1988 the original petitioner has rendered the service of more than 15 years. As such the petitioner’s widow would be entitled to the family pension. We accordingly extend the benefit of family pension to the widow of the original petitioner i.e. present petitioner No.1 Smt.Shobhabai w o Prakash 6. We therefore dispose of the writ petition by directing the respondents to give the benefits of family pension to the widow of the original petitioner from the date of his death i.e 05.12.2003. The said benefit be extended to the widow of the petitioner namely Smt.Shobhabai w o Prakash Barwal within a period of six months from today along with the arrears. No order as to In the case in hand there is no dispute that the deceased Pradip Thakar had joined duties on 01.03.1982 and he had passed away on 06.11.2019 after putting in 37 years in employment His widow would therefore be entitled for family pension In the light of the above this Writ Petition is partly allowed as under: Respondent No.3 would process the pension papers for grant of family pension to the petitioner and the arrears of family pension shall be paid and payment of regular monthly pension shall commence on or before 30.10.2021 Insofar as the provident fund payments are concerned the petitioner will have to approach the Provident Fund authorities for release of such funds and in the event of there being no other legal impediment the Provident Fund authorities would also do the needful on or before 30.10.2021 Insofar as the gratuity leave encashment medical reimbursement and overtime bills are concerned respondent No.3 shall do the needful and clear such dues as per rules. In the event of there being any dispute with regard to either of these payments the petitioner would be at liberty to approach the statutory authorities or avail of a remedy as may be prescribed in law Considering our conclusion and the decision of this Court in the matter of Prakash Barwalthe application of the daughter of the deceased namely Shweta seeking compensation appointment shall be considered by the respondent authorities as per the procedure laid down in law Rule is made partly absolute in the above terms kps (S.G. MEHARE J RAVINDRA V. GHUGE J

‘Other existing liability’ cannot be construed as the liability to pay excise duty also: Bombay High Court

The words “other existing liability” can be the liabilities pertaining to the extent of the property only viz, i. e. Municipal tax, electricity and water charges, land revenue, etc. Purchase as per the order of Confirmation of Sale is subject to worker’s liability and other existing liabilities of the owners of the said property whereas excise dues are not dues that arise out of land or building. Since such liabilities could be in the form of property tax, municipal tax, other types of cess relating to a property, etc. but cannot mean excise duty dues, which arise out of manufacture. This remarkable judgment was passed by the Bombay High Court in the matter of M/S RUNWAL CONSTRUCTIONS V UNION OF INDIA [WRIT PETITION NO. 1335 OF 2009] by Honourable Justice Sunil P. Deshmukh and Justice Abhay Ahuja. By this petition filed under Article 226, the Petitioner is challenging notices dated 29th / 30th January 2008 & 17th October 2008 and 14th May 2009 by which the Respondent purports to prohibit and/or restrain Petitioner from transferring or charging the property situated at Mulund, Mumbai for alleged non-payment of Excise duty. Petitioner is a Partnership firm and carries on the business of construction and development. The office of the Assistant Commissioner of Central Excise having a claim of Excise duty dues against Respondent M/s. Bluemoon Engineers Limited and is now claiming the same from the Petitioner. It appears that certain property admeasuring 24,280.94 square meters situated at Mulund, Mumbai belonging to a company known as M/s. HMP Engineering Ltd. had been mortgaged to Indian Bank as security. At an auction conducted by the Debt Recovery Tribunal Kolkata, Petitioner’s offer was accepted. Certificate of Sale of immovable property dated 05.11.2004, it was certified by the aforesaid order of the DRT, Petitioner was declared purchaser of the property for a consideration of Rs. 12 crores paid by the Petitioner. The certificate of the Sale was stamped and subsequently registered with the office of the Sub-Registrar. It is submitted that at the time of the purchase, Petitioner was unaware of the Excise duty payable and is not liable to pay any excise duty. The property was acquired at an auction held by the DRT, Kolkata and the same was acquired only with workers’ liability which had already been paid and thus Petitioner had nothing to do with the payment of any Excise duty or arrears thereof which is the liability. It was stated by HC that, “Considering the aforesaid findings of this court in the case of Gharkul Industries Private Limited, we are of the view that since in the present case as well there is only purchase of land by Petitioner in the auction conducted by DRT, Kolkata and not transfer or disposal of business or trade-in whole or in part but only a transfer or disposal of mere landed asset, the proviso to section 11 of the Excise Act would not be attracted.” Additionally, “Excise duty liability can be fastened only on that person who had purchased the entire unit as a going concern and not on a person who had purchased land and building or machinery of the erstwhile concern. It is only in such cases that the buyer would be responsible to discharge the liability of Central Excise. Otherwise, the purchaser cannot be fastened on the liability relating to the dues of the government unless there is a specific statutory provision to that effect.” In the present case, the petitioner has not acquired the property without any charge independent of business or trade of the previous owner, nor is he in custody or possession of the said property as a successor of the previous owner against whom there was a demand of excise duty. “The language in the confirmation of the Sale is with reference to the liabilities relating to the said property and not with reference to the business of the Respondent No.3- borrower; we, therefore, hold that since Petitioner has not purchased the entire unit with business, it is not liable for the dues of the Excise Department.”

on 22 04 2021 on 24 04 WP 1335 2009(J).docIN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTIONWRIT PETITION NO. 1335 OF 2009 M s Runwal Constructions A Partnership Firm duly registered under the Indian Partnership Act 1932having its office at Runwal Chambers 1st Road Chembur Mumbai 400 071.…PetitionerVersus1) Union of India…Respondents2) The Office of the Assistant Commissionerof Central Excise Mulund Division Mumbai III Commissionerate3) M s. Bluemoon Engineers Limiteda Company incorporated under the provisionsof Indian Companies Act 1956(formerly known as HMP Engineering)Limited and having its registered officeat 5A Chowringhee Lane 1st Floor Flat No. 1A Kolkata 700 016.Mr. Vikram Nankani Sr. Adv. a w Mr. Saket Mone and Mr. SubitChakrabarti i by Vidhii Partners Advocate for the PetitionerMr. Sham Walve a w Ram Ochani Advocate for the RespondentsCORAM :SUNIL P. DESHMUKH &ABHAY AHUJA JJ.RESERVED ON : 18th MARCH 2021PRONOUNCED ON : 22nd APRIL 2021.S. R. Joshi 1 30 on 22 04 2021 on 24 04 WP 1335 2009(J).docJUDGMENT Issue Writ of Certiorari and or any otherappropriate writ order or direction in the nature ofCertiorari calling for the papers and proceedingsrelating to the impugned notices dated 29th 30thJanuary 2008 17th October 2008 and 14th May 2009 Exhibits “G” “I” and “K” hereto and afterexamining the legality and validity thereof thisHon’ble Court be pleased to quash and set aside thesame.3Petitioner is a Partnership firm registered under theIndian Partnership Act 1932 and carries on business of constructionand development. 2nd Respondent is the office of the AssistantCommissioner of Central Excise having claim of Excise duty duesagainst Respondent No. 3 viz. M s. Bluemoon Engineers Limited( earlier known as “HMP Engineering Ltd.” ) and is now claiming thesame from the Petitioner. S. R. Joshi 2 30 on 22 04 2021 on 24 04 WP 1335 2009(J).doc4It appears that certain property admeasuring 24 280.94square meters situated at Mulund Mumbaihad been mortgaged to Indian Bankas security for certain facilities provided by the Bank toRespondent No. 3 Company. In exercise of its rights as a mortgagee the Bank intended to sell said property to recover its dues fromRespondent No. 3.5At an auction conducted by the Debt Recovery Tribunal( for short “DRT’ ) Kolkata Petitioner’s offer was accepted. Petitionerwas declared successful bidder. The same was confirmed by the DRTby an order of confirmation of sale dated 14.09.2004 and videCertificate of Sale of immovable property dated 05.11.2004 it wascertified that by aforesaid order of the DRT Petitioner was declaredpurchaser of the property for a consideration of Rs. 12 crores paid bythe Petitioner.6The certificate of the Sale dated 05.11.2004 wasstamped and subsequently registered with the office of Sub Registrarof Assurances Kurla 2 on 05.01.2005.7Petitioner submits that pursuant to the purchase it hasalso issued a public notice dated 31.03.2005 inviting claims inrespect of said property.S. R. Joshi 3 30 on 22 04 2021 on 24 04 WP 1335 2009(J).doc8By letter dated 7th April 2005 addressed to Petitioner’sAdvocate Respondent No. 2 informed that there was an amount ofmore than Rs. 1.75 crores payable by Respondent No. 3 Company tothe Respondent No. 2 as and by way of Excise Duty and therefore thePetitioner could not claim any title to the property unless said Exciseduty claim was settled.9Thereafter Petitioner received a notice dated 29th 30thJanuary 2008 from the Assistant Commissioner directing Petitionerto pay an amount of Rs. 1 41 40 767.59 and penalty of Rs.33 93 609 to the 2nd Respondent stating that Petitioner hadpurchased the property with all statutory liabilities.10It is submitted that at the time of the purchase Petitionerwas unaware of the Excise duty payable by Respondent No. 3 Company and is not liable to pay any Excise duty and or allegedarrears of Respondent No. 3 claimed by Respondent No. 2 fromPetitioner. It is with this background after receiving the noticedated 29th 30th January 2008 Petitioner by letter dated 31.01.2008 immediately informed Respondent No. 2 that the property wasacquired at an auction held by the DRT Kolkata and the same wasacquired only with workers liability which had already been paid settled that Petitioner had nothing to do with the payment of anyExcise duty or arrears thereof which is the liability of RespondentNo. 3.11Petitioner submits that the Petitioner has pursuant torequest from 2nd Respondent forwarded copies of the order of SaleS. R. Joshi 4 30 on 22 04 2021 on 24 04 WP 1335 2009(J).docconfirmation of the DRT as well as Certificate of sale to the 2ndRespondent but despite the same the Respondent No. 2 has issuednotices dated 17th October 2008 as well as 14th May 2009 makingdemand of Excise duty dues payable by Respondent No. 3 failingwhich steps would be taken to realize the Excise duty dues under theCustoms Property Adjustment Rules and also prohibiting restrainingthe Petitioner from transferring or charging the property. Said noticesas well have been replied to by the Petitioner.12It is submitted that after the purchase Petitioner hasstarted developing the property. Petitioner’s project on said propertyconsist of 5 buildings containing 504 flats and with respect to 292flats it has entered into agreement arrangements of sale with severalflat purchasers who have availed of bank loans by mortgaging theflats to various banks financial institutions. 13It is further submitted that by virtue of order ofconfirmation of sale and certificate of sale of said property Petitionerbecame owner of the said Property and all the rights title andinterest in the property stood vested in the Petitioner on and from14.09.2004 as the property has been transferred in the name of thePetitioner and has also paid the property tax in its name.14It is submitted on behalf of the Petitioner that liability topay excise duty arises from manufacture of excisable products by themanufacturer Petitioner is not manufacturer of excisable products hence Petitioner cannot be termed and or construed as an “Assessee”S. R. Joshi 5 30 on 22 04 2021 on 24 04 WP 1335 2009(J).docunder the Central Excise Act 1944purporting to invoke a provision under the Central ExciseAct. The attachment restraint is illegal unlawful and liable to beremoved forthwith. And despite Petitioner’s replies clarifying theabove position Respondent No.2 has issued the impugned noticeshaving serious civil consequences. It is in these circumstances thatPetitioner has approached this Court. 16Learned Senior Counsel for the Petitioner Mr. VikramNankani submits the single issue which arises in this petition is aboutthat of priority of Secured debt V s Crown debt State dues tax duesas Petitioner has stepped into the shoes of the Bank having purchasedthe property from a secured creditor. He submits that by virtue ofdecision of the Supreme Court in the case of Rana Girders Vs. UnionS. R. Joshi 6 30 on 22 04 2021 on 24 04 WP 1335 2009(J).docof India & Ors 10 SCC 746 and the Bombay High Courtdecisions in the case of Siddhi Sugar & Allied Industries Latur Vs.State of Maharashtra & Ors.(6) Mh. L. J. 333 GharkulIndustries Pvt. Ltd. & Another v s. Superintendent Central ExciseRange & Others247 ELT 3 as well as the recent decision ofthis Court in the case of State Bank of India through its ChiefManager Mr. Jagdish Mohan Nakade Vs. State of MaharashtraSCC Online Bom 4190 the law is well settled that a securedcreditor has priority over the charge of tax VAT dues. He submitsthat since Petitioner has purchased the property which wasmortgaged to the seller bank Petitioner would also get the sametreatment as a secured creditor and therefore his right could not beinterfered with by the Excise Department for recovery of excise dutydues of the borrower Respondent No.3. 17It is also submitted on behalf of Petitioner that section 11of the Excise Act or the proviso to section 11 do not apply in thepresent case as the petitioner has not succeeded to the business ortrade of the Respondent No. 3 borrower in whole or in part. However even assuming while denying the applicability of section 11 it issubmitted that as per the proviso to section 11 Petitioner is not asuccessor in business of the borrower and assuming the sectionwould be applicable yet the proviso would exclude the petitioner. Inthis context Petitioner relies upon the decision of this court in thecase of Gharkul Industries Private Limitedwhere this courthas held that petitioner had purchased property belonging to acompany in liquidation pursuant to a public auction as purchaser ofassets and not purchaser as successor of business the proviso toS. R. Joshi 7 30 on 22 04 2021 on 24 04 WP 1335 2009(J).docsection 11 of the Central Excise Act is not attracted.18He would also submit that in view of the decision in thecase of Rana Girdersas well as Siddhi SugarsincePetitioner has only purchased the land said property of3rd Respondent and not the business the Excise department cannotclaim arrears of respondent No. 3 from Petitioner. He submits that itwould have been another story if Petitioner had purchased the 3rdRespondent’s business or taken over the business which is whenPetitioner could have been made liable as successor in interest whichis not the case here.19Per contra Mr. Sham Walve learned Standing Counselfor the Revenue relies upon the affidavit in reply and refers to theorder of confirmation of sale of immovable property dated14.09.2004 whereby it is recorded that Petitioner has purchased thesaid property alongwith the workers liability and other existingliabilities of the owner of said property and therefore in view of theclear language of the order of the confirmation of the sale there is nodoubt that Petitioner was liable for excise duty dues of the Revenuedepartment. He further submits that Certificate of Sale of theimmovable property dated 05.11.2004 declaring Petitioner as thepurchaser also no where states that the said property was sold freefrom encumbrances.20He draws our attention to order sheet 30in respect of order dated 3rd September 2004 inS. R. Joshi 8 30 on 22 04 2021 on 24 04 WP 1335 2009(J).docTA 7 2004 passed by the DRT Kolkata to submit that Petitioner isalso bound by said order and is required to settle not only theworkers dues but also statutory dues of the Government and otherdepartments. He refers to paragraph 4(j) of the agreed terms andconditions in the order which is quoted as under:“4: ….….….….….….….….(j): The company should ensure settlement of theissues raised by workers union statutory dues ofthe Government and other Departments as well asother parties to ensure timely sale of assets andappropriation of the proceeds and producenecessary evidence to the Bank in settlement ofsuch issues claims. It is clarified that the applicantbank shall in no way be responsible nor shall it beopen for any of the parties to Claim any precedence over the compromise dues to the Bank.The defendants and guarantors shall indemnify theapplicant bank against any such eventuality.”21Referring to said order on page 25 he submits that theintending purchaserhad come forward with anamount of Rs. 13 crores to be split up respectively into 12 crores asthe price for the Mulund property and the balance Rs. 1 crore for therelease of the Victory House property Kolkata he submits that theapplication had been made in accordance with Clause No.of theterms and conditions as stipulated in paragraph 4 cited in the order.He quotes paragraph 4(a) of the sanctioned terms and conditions isquoted as under :“The defendants shall pay Rs. 1300 lacs to theapplicant bank on or before 30th September 2004S. R. Joshi 9 30 on 22 04 2021 on 24 04 WP 1335 2009(J).docby sale of land of Mulund unit and against beforerelease of Victory house property. Nine Quarterlyinstallments of Rs.50.00 lakhs each commencingfrom the quarter ending 31.12.2004 to QuarterEnding 31.12.2006. First of such installment willfall due for payment on 31.12.2004 and the sameshould be paid on or before that date.Subsequent installments will likewise fall due forpayment on 31st March 30th June 30thSeptember and 31st December etc. and should bepaid by the defendants before the due date.”22He submits that under this order Petitioner also handedover the demand drafts for the afore mentioned amount after whichit received possession alongwith the title deeds of the property. 23He submits that if there is priority of secured debt overexcise duty dues and since Petitioner has purchased all the securitythat was owned by borrowers there is no way the State could recoverits taxes as there is no property left with the borrower companywhich can be sold to recover the taxes and therefore that liability hasto be borne by the purchaser of the property which was earlier ownedby the company and mortgaged to the bank.24Mr Sham Valve learned Counsel for Respondentsrevenue at this stage seeks to draw our attention to a recent decisionof Nagpur bench of this court in the case of Medineutrina Privatelimited versus District Industries Centreand others dated 18February 2021 to submit that as in the facts of this case in that caseas well there was an issue with respect to the charge of VAT arrears ofS. R. Joshi 10 30 on 22 04 2021 on 24 04 WP 1335 2009(J).docthe borrower and recovery of the same from the auction purchaser.The auction purchaser had challenged the requirement by the DIC toobtain No Objection Certificatefrom the sales tax Departmentwith respect to the arrear of sales tax VAT dues from the borrowerbefore approving the transfer to Petitioner therein submitting that theauction purchase was pursuant to the provisions of the Securitisationand Reconstruction of Financial Assets and Enforcement of SecurityInterest Act 2002and in view of the clear languageof section 26E of the SARFAESI Act section 37 of the MaharashtraValue Added Tax Act 2002would be subservient to theprovisions of section 25 E of the SARFAESI Act due to which theaction on the part of the DIC as well as the sales tax authorities of notissuing the NOC for transfer of the land in favour of Petitioner onaccount of the so called dues was illegal. He submits that afterconsidering the law on the subject though the Nagpur bench agreedthat mortgage of a secured creditor gets priority of charge over thecharge for tax VAT dues but when such mortgaged property is putto auction then the bank is required to deliver the same free fromencumbrances as per the SARFAESI Act and the Security Interest(Enforcement) Rules 2002 and for that it would be the duty of thesecured creditor to ensure that all encumbrances be known beforehand the amount to be received by auction of the property should besufficient to cover the costs charges and expenses and discharge ofthe dues of the secured creditor and also discharge of theencumbrances upon the property including the arrears of VAT salestax dues. He submits that holding that the dues of the Sales taxDepartment therein were charge on the property u s 37(1) of MVATAct and property having stood attached by the Sales tax departmentS. R. Joshi 11 30 on 22 04 2021 on 24 04 WP 1335 2009(J).docbefore the auction petitioner would be liable to pay the same to thedepartment in order to obtain a clear and marketable title to theproperty having purchased the same on “as is where is and whateverthere is basis”. Only when Petitioner discharges the dues it wouldthen be entitled to a no dues certificatefrom the sales taxdepartment. Also in that case it was claimed that there was no noticeto the auction purchaser of the charge by the tax department but thebench has held that notice of such statutory charge is alwayspresumed in law to one an all and none can claim ignorance of thesame. Mr. Valve submits that the facts in the case at hand are nodifferent except that in the present case there are excise duty duesand the auction was pursuant to the Recovery of Debts due to Banksand Financial Institutions Act 1993and therefore theratio in the case of Medineutrinawould apply to the facts ofthis case. In that view of the matter he submits that no relief can begranted to the Petitioner until payment of the excise duty dues.25In response to aforesaid contentions a brief note hasbeen submitted on the judgment in the case of Medineutrinavis a visthe Securitization and Reconstruction of Financial Assets and Enforcement of Securities Interest Act 2002inS. R. Joshi 12 30 on 22 04 2021 on 24 04 WP 1335 2009(J).docthe said Judgment held that the SARFAESI Act being a central statute any priority of claim for debts due to a secured creditorbank which is created by Section 26E of the said Act will prevail over any first charge which may be created by Section 37(1) of the MVAT Act which is state legislation in view of thelanguage used in Section 26E of the SARFAESI Act. It was further held that the priority created by virtue of Section 26E of the SARFAESI Act also takes precedence over any “crown debt” due to the the central government state government or local authority. However in a subsequent discussion as regards the liability of a successful action purchaser their Lordships held that successful auction purchaser would be liable to paythe sales tax dues of the erstwhile owner of the auctioned property to the Sales Tax Departmentto get free clear and marketable title of the said property having purchased the same on an “as is where is and whatever is” basis.B: The controversy involved in the present matter is respectof a demand raised by the Central Excise Department under the provisions of the Central Excise Act 1944vis a vis the Recovery of Debts Due to Banks and Financial Institutions Act 1993which creates a “first charge” for the liabilities under the said Act. However an express exception has been carved out under the said Section which saves “first priority charges” created under the RDDB Act or the SARFAESI Act. The aforesaid Sections and a similar claim of the Central Excise Department came up for discussion before the Aurangaband Bench of the Hon’ble Bombay High Court in Siddhi Sugar and Allied Industries Ltd. 2019Mh.L.J. wherein the Court held that even without the aid of Section 26E of the Excise Act it can be safely concluded that a secured creditor Bank would S. R. Joshi 13 30 on 22 04 2021 on 24 04 WP 1335 2009(J).dochave a priority over the claim of the Central Excise Department. In the present matter admittedly the claim of the Bank against the erstwhile owners was under the RDDB Act and thus the claims of the Bank will have precedence over the claims of the Central Excise Department.C: In any event the issue of a subsequent auction purchaserbeing liable to pay the central excise dues of the erstwhile owner has been decided by the Hon’ble Supreme Court in India in Rana Griders v s. Union of India10 SCC 746in categorical and unequivocal termsstates that if a subsequent auction purchaser on an purchased the “land” “plant” or “machinery” even if a property is purchased on an “as is where is basis” and with the stipulation that it is being purchased “with all existing statutory liabilities” such auctionpurchaser would only be liable to pay statutory dues and taxes in relation to and arising out of the “land” “plant” or “machinery”. Central excise dues not being relatable to “land” “plant” and or “machinery” the auction purchaser cannot be held liable to pay the same unless and until such auction purchaser entire has purchased the entire defaulting unit and or its business as a going concern.”26We have heard learned Counsel for the parties and withtheir able assistance have perused the papers proceedings as well asthe decisions cited during the course of arguments. 27Facts are not in dispute in the present case. The SupremeCourt on almost identical facts in the case of Rana Girdersand because of the consistent defaulton the part of the borrower in repaying the loans under Section 29 ofthe State Financial Corporations Act UPFC took possession of theS. R. Joshi 14 30 on 22 04 2021 on 24 04 WP 1335 2009(J).docland and building of the borrower which was mortgaged kept assecurity with UPFC. Thereafter physical possession of the unit wastaken and UPFC held a public auction in which M s Sarju Steelswas declared as successful bidder of land and buildingas well as plant and machinery. Accordingly by the sale deed the landand building was transferred to the Rana Girders and by anotheragreement ownership of the plant and machinery was also conveyed.As such Rana Girders became owner of the both land and building aswell as plant and machinery.28In that case the borrower had also to discharge liabilityof the excise duty of Rs.1 00 72 442 and to recover the saidamount concerned Commissioner was seeking to do so from RanaGirders as successor in interest of the land building plant andmachinery. Rana Girders resisted the demand submitting that theproperty had been purchased in an open auction and free from allencumbrances and it was not the liability of the purchaser to makepayment of the dues of the excise duty department. The issue thatarose was whether Excise Department could recover the excise dutyfrom Rana Girders which was the purchaser in auction on “as is wereis basis” with a condition in the public notice of the auction whichstipulated that all the statutory liabilities arising out of land would beborne by the purchaser except electricity dues. Also there was acondition in the sale deed as well as in public notice which stipulatedthat all the statutory liability arising out of the properties shall beborne by the vendee and the seller would not be responsible. TheSupreme Court formulated two questions for its consideration whichS. R. Joshi 15 30 on 22 04 2021 on 24 04 WP 1335 2009(J).docare set out in paragraph 14 of said decision: “14: ….….In the circumstances two questions arise for consideration namely:On the interpretation of stipulation contained inthe Sale Deed of the land and building andAgreement of Sale of plant and machinery whetherthe appellant had agreed to discharge the duespayable to the Excise department by the borrower.(2) Whether such a liability arises in lawhavingregard to the legal provisions contained in the ExciseAct and State Financial Corporation Act Answering the questions the Supreme Court referring to its owndecisions in the case of State of Karnataka v s. Shreyas Papers(P) Ltd. Macson MarblesLtd. v s. Union of India Union ofIndia v s. SICOM Ltd. Dena Bank v s. Bhikabhai P. Parekh &Co. held thus :“15. We shall discuss the second question in the first instance.As noted above in so far as second question is concerned though the High Court has discussed the position in law indetail but has refrained from giving its final opinion on thisquestion.16.Whether UPFC would have priority being a securedcreditor by virtue of Deed of Mortgage or the Central Excise inrespect of its dues having regard to the Rule 230(2) of theCentral Excise Rules came up for consideration before thisCourt in State of Karnataka & Anr. Vs. Shreyas PapersLtd.& Ors. JT 2006SC 180. Dealing with the provisions of Rule230 of the Excise Rules the Court held that this provisionauthorizes detention of all excisable goods materials preparations plant machinery vessels utensils implementsand articles in the custody or possession of the person orpersons carrying on such trade or business or from personS. R. Joshi 16 30 on 22 04 2021 on 24 04 WP 1335 2009(J).docsucceeding the business or trade or part thereof for such timetill dues are paid or recovered. However the rule does not inany way create a charge over any of the goods enumeratedtherein. After explaining the term charge as defined in Section100 of Transfer of Property Act it was held that charge wouldbe different from the word detained. As Rule 230 onlyempowers detention and there was no other provision underthe Central Excise Act or the Rules which envisages to createany charge over the assets of a unit to enable the realization ofthe Central Excise Duty on top priority. The Court held thatUPFC had a priority being a secured creditor on the one handand Central Excise having no charge over the property. TheCourt specifically took note of the fact that the petitioner inthat case was not the successor of the erstwhile owner inbusiness or trade and having acquired the property without anycharge independent of business or trade of the previous owner was not a person in custody or possession of the property as asuccessor of the previous owner against whom there was ademand of excise duty.17. Learned counsel for the respondents heavily relied onthe judgment of this Court in M s. Macson MarblesLtd. Vs.Union of India15 SCC 481 reference to which is alsomade in the notice dated 25.02.1984 that was served upon theappellant by the Excise Department. He submitted that in thatcase this Court had held that even the successor in interest isliable to discharge the liability of the Excise Department. Wemay however note that this case was considered andspecifically distinguished in Union of India Vs. SICOM Ltd.(2009) 2 SCC 121. In that case considering the statutory rightof the Financial Corporation under the State FinancialCorporation Act 1951 and the non obstante clause occurringtherein it was categorically held that State FinancialCorporation shall have a preferential claim in relation to itssecured debts. This position is explained in paragraphs 16 and23 of the said judgment in the following manner:16. If a company had a subsisting interestdespite a lawful seizure there cannot be anyS. R. Joshi 17 30 on 22 04 2021 on 24 04 WP 1335 2009(J).docdoubt whatsoever that a charge mortgageover immovable property will have the sameconsequence.23. Furthermore the right of a State FinancialCorporation is a statutory one. The Actcontains a non obstante clause in Section 46 Bof the Act which reads as under:‘46 B. Effect of Act on other laws The provisions of this Act and ofany rule or orders made thereundershall have effect notwithstandinganything inconsistent therewithcontained in any other law for thetime being in force or in thememorandum or articles ofassociation of an industrial concernor in any other instrument havingeffect by virtue of any law otherthan this Act but save as aforesaid the provisions of this Act shall be inaddition to and not in derogationof any other law for the time beingapplicable to an industrial concern.18.In so far dues of the Government in the form of tax orexcise etc. are concerned the Court in SICOM case was of theopinion that rights of the Crown to recover the dues wouldprevail over the right of the subject. The Crown debt meansthe debts due to the State or the King. Such creditors however must be held to mean unsecured creditors. Theprinciple of Crown debt pertains to the common law principle.When Parliament or the State Legislature makes anenactment the same would prevail over the common law andthus the common law principles which existed on the date ofcoming into force of the Constitution of India must yield to astatutory provision. A debt which is secured or which byreason of the provisions of a statute becomes the first chargeover the property must be held to prevail over the Crown debtwhich is an unsecured one. On this reasoning the debtS. R. Joshi 18 30 on 22 04 2021 on 24 04 WP 1335 2009(J).docpayable to secured creditor like the Financial Corporation wasprioritized vis a vis the Central Excise Dues.19. For this principle the Court referred to its earlierjudgment in Dena Bank Vs. Bhikhabhai Prabhudas Parekh &Co. & Ors.5 SCC 694 explaining the doctrine ofpriority to Crown Debts thus:“13. ….’7. What is the common law doctrineof priority or precedence of Crown debts Halsbury dealing with general rights of theCrown in relation to property states thatwhere the Crowns right and that of a subjectmeet at one and the same time that of theCrown is in general preferred the rule beingdetur dignioriof Constitution.It was furthermore observed :‘10. However the Crown’s preferential rightS. R. Joshi 19 30 on 22 04 2021 on 24 04 WP 1335 2009(J).docto recovery of debts over other creditors isconfined to ordinary or unsecured creditors.The common law of England or theprinciples of equity and good consciencedo not accord the Crowna preferential right for recovery of its debtsover a mortgagee or pledge of goods or asecured creditor. It is only in cases where theCrowns right and that of the subject meet atone and the same time that the Crown is ingeneral preferred. Where the right of thesubject is complete and perfect before that ofthe king commences the rule does not apply for there is no point of time at which the tworights are at conflict nor can there be aquestion which of the two ought to prevail ina case where one that of the subject hasprevailed already. In Giles Vs. Grover3 SCC 196 the principle has beenrecognised by this Court holding that therights of the pawnee who has parted withmoney in favour of the pawnor on thesecurity of the goods cannot be extinguishedeven by lawful seizure of goods by makingmoney available to other creditors of thepawnor without the claim of the pawneebeing first fully satisfied. Rashbehary Ghosestates in Law of Mortgageit seems a government debt inIndia is not entitled to precedence over aprior secured debt.20. Coming to the liability of the successor in interest the Court clarified the legal position enunciated in M s.Macson by observing that such a liability can be fastenedon that person who had purchased the entire unit as anongoing concern and not a person who had purchasedS. R. Joshi 20 30 on 22 04 2021 on 24 04 WP 1335 2009(J).docland and building or the machinery of the erstwhileconcern. This distinction is brought out and explained inparagraph 19 and it would be useful for us to reproduceherein below:‘19. Reliance has also been placed by Ms.Rao on MacsonMarbles Pvt.Ltd. wherein the dues under Central ExciseAct were held to be recoverable from an auctionpurchaser stating:‘10. We are not impressed with the argument thatthe State Act is a special enactment and the samewould prevail over the Central Excise Act. Eachof them is a special enactment and unless in theoperation of the same any conflict arises thisaspect need not be examined. In this case nosuch conflict arises between the corporation andthe Excise Department. Hence it is unnecessaryto examine this aspect of the matter.11. The Department having initiated theproceedings under Section 11A of this Actadjudicated liability of respondent No.4 and heldthat respondent No.4 is also liable to pay penaltyin a sum of Rs.3 lakhs while the Excise duesliable would be in the order of a lakh or so. It isdifficult to conceive that the appellant had anyopportunity to participate in the adjudicationproceedings and contend against the levy of thepenalty. Therefore in the facts and circumstancesof this case we think it appropriate to direct thatthe said amount if already paid shall berefunded within a period of three months. Inother respects the order made by the High Courtshall remain undisputed. The appeal is disposedof accordingly.The decision therefore was rendered in the facts of thatcase. The issue with which we are directly concerned didnot arise for consideration therein. The Court also did notnotice the binding precedent of Dena Bank Vs. BhikhabhaiPrabhudas Paresh & Co.5 SCC 694 as also otherdecisions referred to hereinbefore.S. R. Joshi 21 30 on 22 04 2021 on 24 04 WP 1335 2009(J).doc21. A harmonious reading of the judgments in Macsonand SICOM would tend us to conclude that it is only inthose cases where the buyer had purchased the entire uniti.e. the entire business itself that he would be responsibleto discharge the liability of Central Excise as well.Otherwise the subsequent purchaser cannot be fastenedwith the liability relating to the dues of the Governmentunless there is a specific provision in the Statute claimingfirst charge for the purchaser. As far as Central Excise Actis concerned there was no such specific provision asnoticed in SICOM as well. The proviso to Section 11 is nowadded by way of amendment in the Act only w.e.f.10.9.2004. Therefore we are eschewing our discussionregarding this proviso as that is not applicable in so far aspresent case is concerned. Accordingly we thus hold thatin so far as legal position is concerned UPFC being asecured creditor had priority over the excise dues. Wefurther hold that since the appellant had not purchased theentire unit as a business as per the statutory framework hewas not liable for discharging the dues of the ExciseDepartment.23. We may notice that in the first instance it wasmentioned not only in the public notice but there is aspecific clause inserted in the Sale Deed Agreement aswell to the effect that the properties in question are beingsold free from all encumbrances. At the same time there isalso a stipulation that all these statutory liabilities arisingout of the land shall be borne by purchaser in the saledeed and all the statutory liabilities arising out of the saidproperties shall be borne by the vendee and vendor shallnot be held responsible in the Agreement of Sale. As perthe High Court these statutory liabilities would includeexcise dues. We find that the High Court has missed thetrue intent and purport of this clause. The expressions inthe Sale Deed as well as in the Agreement for purchase ofplant and machinery talks of statutory liabilities arising outof the land or statutory liabilities arising out of the saidpropertieswould be pertinent to be referred to whichcontains section 11 of the Excise Act along with its proviso: “11. Recovery of sums due to Government.—In respect of duty and any other sums of any kind payable to the Central Government under any of the provisions of this Act or of the rules made thereunder 1[including the amount required to be paid to the credit of the Central Government under section 11D] the officer empowered by the 2[Central Board of Excise and Customs constituted under the Central Boards of Revenue Act 1963to levy such duty or require the payment of such sums may deduct or require any other CentralExcise Officer or a proper officer referred to in section 142 of the Customs Act 1962to deduct the amount so payable from any money owing to the person from whom such sums may be recoverable or due which may be in his hands or under his disposal or control or may be in the hands or under disposal or control of such other officer or may recover the amount by attachment and sale of excisable goods belonging toS. R. Joshi 23 30 on 22 04 2021 on 24 04 WP 1335 2009(J).docsuch person and if the amount payable is not so recovered he may prepare a certificate signed by him specifying the amount due from the person liable to pay the same and send it to the Collector of the district in which such person resides or conducts his business and the said Collector on receipt of such certificate shall proceed to recover from the said person the amount specified therein as if it were an arrear of land revenue]: Provided that where the personfrom whom the duty or any other sums of any kind as specified in this section is recoverable or due transfers or otherwise disposes of his business or trade in whole or in part or effects any change in the ownership thereof in consequence of which he is succeeded in such business or trade by any other person all excisable goods materials preparations plants machineries vessels utensils implements and articles in the custody or possession of the person so succeeding may also be attached and sold by such officer empowered by the Central Board of Excise and Customs after obtaining written approval from the Commissioner of Central Excise for the purposes of recovering such duty or other sums recoverable or due from such predecessor at the time of such transfer or otherwise disposal or change.]30Paragraphs 13 14 23 and 28 of the decision of thisCourt in the case of Gharkul Industries P. Ltd. are pertinentand are quoted as under: “13: Admittedly the liability of the Excise duty of the Company in Liquidation is to the tune of Rs.1 96 99 848 . Respondent 1 is relying on section 11 of the Central Excise Act 1944. This section states the manner in which the sums due tothe Central Government can be recovered under the Central Excise Act 1944. This section inter alia states that in respect of duty and any other sums of any kind payable to the Central Government under any of the provisions of the Central Excise Act 1944 the empowered officer may deduct the said amount so payable from any money owning to the person from whom S. R. Joshi 24 30 on 22 04 2021 on 24 04 WP 1335 2009(J).docsuch sums may be recoverable or due which may be in his hands or under his disposal or control or may recover the amount by attachment and sale of excisable goods belonging tosuch person. Proviso to section11 is of relevance to the presentpetition. It reads as under: Provided that where the person(hereinafter referred to as predecessor) from whom the duty or any other sums of any kind as specified in this section is recoverable or due transfers or otherwise disposes of his business or trade in whole or in part or effects a13ny change in the ownership thereof in consequence of which he is succeeded in such business or trade by any other person all exercisable goods materials preparations plants machineries vessels utensils implements and articles in the custody or possession of the person so succeeding may also be attached and sold by such officer empowered by the Central Board of Excise and Customs after obtaining written approval from the Commissioner of Central Excise Customs for the purposes of recovering such duty or other sums recoverable or due from such predecessor at the time of such transfer or otherwise disposal or charge.”14: The proviso enables the empowered officer to attach andsell after obtaining permission from the Commissioner of Central Excise excisable goods materials preparations plants machineries vessels utensils implements and articles in the custody or possession of the successors of the person from whom Excise dues are recoverable. The proviso contemplates a situation where a person from Excise dues are recoverable transfers or otherwise disposes of his business or trade or effects a change in the ownership thereof. In such a situation the proviso enables the empowered officer to attach and sell after obtaining permission from the Commissioner of Central Excise all excisable goods materials etc in the custody or possession of the person to whom the business or trade is transferred or in whose favour a change in the ownership is effected for the purpose of recovering outstanding dues of the Excise Department as on the date of such transfer or disposal.23: We also feel that Mr. Dhond’s alternative submission deserves to be accepted. The proviso to section 11 refers to transfer or disposal of business or trade in whole or in part. It does not refer to the transfer or disposal of mere assets. It is S. R. Joshi 25 30 on 22 04 2021 on 24 04 WP 1335 2009(J).docnot the case of the petitioners that they have purchased the business or trade of the Company in Liquidation. Neither respondent no.2 nor the Excise Department in its affidavit has stated so. Learned Company Judge in his order dated 5 12 2003 has stated that other financial institutions have communicated their consent to the sale of the assets of the Company in Liquidation. He has observed that the quality and the value of the assets of the Company in Liquidation is deteriorating. It is therefore clear that the land plant and machinery being the assets of the Company in Liquidation were brought to sell.28: Primarily considering the fact that proviso to section 11 of the Central Excise Act 1944 is not attracted to the present case and taking an overall view of the matter in our opinion the petitioners prayers deserve to be granted. Hence we pass the following order: ORDER(i)It is declared that the sale of the said property to the petitioners duly sanctioned by this Court by its order dated 23 12 2005 in Company Application No.8605 in Company Petition No. 1698 is not subject to proviso to section 11 of the Central Excise Act 1944.(ii)Upon the petitioners depositing the entire sale proceeds as directed by this Court respondent no.3 i.e. the official Liquidator shall take necessary steps as directed by this Court by its order dated 5 12 2003 in Company ApplicationNo.2803 and order dated 23 12 2005 in Company Application No.8605 in Company Petition No..1698.(iii)Needless to say that the Excise Department can also file its claim before respondent 3. If such a claim is filed respondent 3 shall adjudicate it in accordance with law. The petition is disposed of in the aforestated terms.” 31Considering the aforesaid findings of this court in thecase of Gharkul Industries Private Limitedwe are of the viewthat since in the present case as well there is only purchase of land byS. R. Joshi 26 30 on 22 04 2021 on 24 04 WP 1335 2009(J).docPetitioner in the auction conducted by DRT Kolkata and not transferor disposal of business or trade in whole or in part but only a transferor disposal of mere landed asset the proviso to section 11 of theExcise Act would not be attracted.32The above discussion leads to that a secured creditor haspriority over crown debts excise dues. Going forward this is a casewhere petitioner has purchased land in an auction conductedpursuant to proceedings under the RDDB Act by the Debt RecoveryTribunal Kolkata of the property belonging to the Respondent No. 3company. Petitioner is not a successor of the business of the erstwhileowner in business or trade viz: of Respondent No.3 having acquiredthe property without any charge independent of business or trade ofthe previous owner nor the Petitioner is in custody or possession ofthe said property as a successor of the previous owner against whomthere was a demand of excise duty. This is also not a case where theentire unit i. e. the entire business itself was purchased by thePetitioner. It is not that Petitioner has purchased or taken over theborrower’s business or is its successor in business carrying on theborrower’s or 3rd Respondent’s manufacturing business but has onlypurchased the said land. Excise duty liability can be fastened only onthat person who had purchased the entire unit as a going concernand not on a person who had purchased land and building ormachinery of the erstwhile concern. It is only in such cases that thebuyer would be responsible to discharge the liability of CentralExcise. Otherwise the purchaser cannot be fastened on the liabilityrelating to the dues of the government unless there is a specificstatutory provision to that effect.S. R. Joshi 27 30 on 22 04 2021 on 24 04 WP 1335 2009(J).doc33Petitioner is an auction purchaser of the saidproperty and has not acquired the business of the RespondentNo.3 borrower. True also that the said purchase as per the orderof Confirmation of Sale is subject to worker’s liability and otherexisting liabilities of the owners of the said property. Admittedly the worker’s dues have been settled. Excise dues are not dueswhich arise out of land or building. Such liabilities could be inthe form of property tax municipal tax other types of cessrelating to property etc. but cannot mean excise duty dues which arise out of manufacture. In our view therefore thelanguage in the confirmation of the Sale is with reference to theliabilities relating to the said property and not with reference tothe business of the Respondent No.3 borrower we thereforehold that since Petitioner has not purchased the entire unit withbusiness it is not liable for the dues of the Excise Department.The arguments of the learned Counsel for the Revenue also donot impress us.34In view of the above discussion where we havefound that in view of the decision of the Supreme Court in thecase of Rana GirdersPetitioner would not be liable toexcise duty dues of Respondent No.3 borrower havingpurchased only the land and not the entire business of theborrower in the public auction the decision of the Nagpur benchin the case of Medineutrinawould not whelm thepresent case as the said decision has not considered the case ofS. R. Joshi 28 30 on 22 04 2021 on 24 04 WP 1335 2009(J).docRana Girdersinasmuch as that wascase after the insertion of section 11 E to the Central Excise Actwhereas the present matter as also the caseof Rana Girderspertain to a period prior to 1 April 2011 i.e.prior to the insertion of section 11 E.35As far as the reliance of the learned Counsel for thePetitioner on the decision of this Court in the case of State Bank ofIndia v s. State of Maharashtrais concerned there appears tobe no doubt about the conclusion in the said decision that if anyCentral Statute creates priority of a charge in favour of a securedcreditor the same will rank above the charge in favour of a State fora tax due thereunder. That the mortgage of the secured creditor willget prior charge over the revenue.36Apropos the above discussion and the ratio laiddown by the Supreme Court in the case of Rana Girderswe are inclinedto allow the Writ Petition in terms of prayer clauseIssue Writ of Certiorari and or any other appropriatewrit order or direction in the nature of Certiorari callingfor the papers and proceedings relating to the impugnednotices dated 29th 30th January 2008 17th October 2008 and 14th May 2009 Exhibits “G” “I” and “K”hereto and after examining the legality and validitythereof this Hon’ble Court be pleased to quash and setaside the same.S. R. Joshi 29 30 on 22 04 2021 on 24 04 WP 1335 2009(J).doc37Thus the impugned notices dated 29th 30thJanuary 2008 17th October 2008 and 14th May 2009 relating toexcise duty dues are quashed and set aside and its recovery bythe department if any from Petitioner be refunded preferablywithin a period of four weeks from the date of receipt of thisorder.(ABHAY AHUJA J.) (SUNIL. P. DESHMUKH J.)S. R. Joshi 30 30

On finding that the Petitioner was the biological father of the child, the court ensured the marriage was done without any undue influence and they lived with full honor, security and dignity: High Court Of Patna

Petitioner granted bail after he promised to marry the opposite party No. 2 as it was found that he was the biological father of her child. The Court passed the directions to confirm that the family was living happily after 2 months of marriage. the Court also talked with the child to fully ensure that the petitioner married without any volition or pressure upon him. The Hon’ble High Court of Patna before Justice Mr. Ahsanuddin Amanullah in the matter Sanjeet Sada v. The State of Bihar and others[Criminal Miscellaneous No.78936 of 2019].  The facts of the case were that the petitioner was apprehended arrest in connection with the Case, instituted under Sections 341, 376 of the Indian Penal Code and 4 of the Protection of Children from Sexual Offences Act, 2012. The DNA test of the child was conducted and showed up that the petitioner was his father biologically. The petitioner took a stand and promised to marry the opposite party no. 2. The Court had made sure that such stand was not taken under any duress and it has been recorded that the stand was that on his own volition, the petitioner and his family members had agreed to get the petitioner and the opposite party no. 2 married and to accept the child in the house. A check and affidavit were made which ensured that after around 2 months the family lived happily and reports were also called upon to check that the family was living happily. From the entire report and the statement of the persons, there is no indication that the parties have married and only it has been stated that they are living together as husband and wife. The Court constrained that both Additional Public Prosecutor and the superintendent failed to notice and ensure compliance with the direction of the court. The court called upon the family and the petitioner submitted that they have been living happily married and the child also had a talk at the chamber of the judge and he was well satisfied. The Court held that the petitioner shall be granted bail and fulfill the terms and conditions. The petitioner shall keep the opposite party 2 and the child in their matrimonial home with security, dignity, and honor. She shall be free to meet anyone she wants and shall be there with free will. The Court asked the Superintendent and Additional Public Prosecutor for an explanation of the misconduct and mistake made by them in the next hearing.

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 789319 Arising Out of PS. Case No. 27 Year 2019 Thana MAHILA P.S District Supaul Sanjeet Sada aged about 24 years Male Son of Kamal Sada Resident of Village Babhni Surat Patti Ward No.03 PS Supaul District Supaul ... Petitioner s The State of Bihar Puja Kumari Daughter of Ram Japit Sada Resident of Village Babhanipurpatti Ward No.3 PO and District Supaul The Civil Surgeon Supaul ... Opposite Party s For the Petitioner s For the State Mr. Vijay Kumar Mukul Advocate Mr. Anant Kumar No. 1 APP CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 09 08 2021 The matter has been heard via video conferencing. 2. Heard Mr. Vijay Kumar Mukul learned counsel for the petitioner and Mr. Anant Kumar No. 1 learned Additional Public Prosecutor for the 3. The petitioner apprehends arrest in connection with Supaul Mahila PS Case No. 27 of 2019 dated 08.06.2019 instituted under Sections 341 376 of the Indian Penal Code and 4 of the Protection of Children from Sexual Offences Act 2012 4. The case has been heard on a number of occasions and on the stand of learned counsel for the petitioner the DNA Patna High Court CR. MISC. No.789319 dt.09 08 2021 test of the child was also conducted which showed him to be the biological father. Thereafter the petitioner had taken a stand that he would marry the opposite party no. 2 as his misgivings about the parentage of the child stood removed 5. The Court had made sure that such stand was not taken under any duress and it has been recorded that the stand was that on his own volition the petitioner and his family members had agreed to get the petitioner and the opposite party no. 2 married and to accept the child in the house. Pursuant to the same an affidavit has been filed jointly by the parties in which it has been stated that they have married about two and a half months back and that the opposite party no. 2 and her child is living in the matrimonial home with due love and affection 6. On 12.07.2021 while adjourning the matter for filing of a joint affidavit by the petitioner and the opposite party no. 2 the Court had also called for a report from the Superintendent of Police Supaul in the matter. Today a report of the Superintendent of Police Supaul dated 31.07.2021 has been brought on record in which statement of the parties as also the father of the opposite party no. 2 has been brought on record which indicates that both the parties are living together as husband and wife and there is no Patna High Court CR. MISC. No.789319 dt.09 08 2021 7. The Court would pause here to note that at paragraph no. 5 of the order dated 12.07.2021 there was a specific direction that the Superintendent of Police Supaul to find with regard to the claim of the petitioner that he has married the opposite party no. 2 From the entire report and the statement of the persons there is no indication that the parties have married and only it has been stated that they are living together as husband and wife 8. The Court is constrained to observe that neither the Superintendent of Police Supaul nor the learned APP have been vigilant in ensuring compliance of the direction of the Court in its order dated 12.07.2021 which shows sheer casualness on their part and is unfortunate 9. The Court would deal with the conduct of the Superintendent of Police Supaul subsequently 10. Coming on the merits of the matter in view of there being a specific statement made in paragraph no. 3 that the parties have married some two and a half months back and the opposite party no. 2 and her child are living in the matrimonial home with the petitioner with full dignity and honour and the fact that learned counsel for the petitioner has submitted that the petitioner along with the opposite party no. 2 and his child had come to his chamber and he has also talked to them and is satisfied that good Patna High Court CR. MISC. No.789319 dt.09 08 2021 relationship is prevailing between the parties the Court is inclined to allow the prayer 11. Accordingly in the event of arrest or surrender before the Court below within six weeks from today the petitioner be released on bail upon furnishing bail bonds of Rs. 25 000 twenty five thousand) with two sureties of the like amount each to the satisfaction of the learned 1st Additional Sessions Judge cum Special Judge Supaul in Supaul Mahila PS Case No. 219 subject to the conditions laid down in Section 438(2) of the Code of Criminal Procedure 1973 and further that one of the bailors shall be a close relative of the petitioner andthat the petitioner give an undertaking before the Court that he shall keep the opposite party no. 2 and her child in the matrimonial home with full dignity honour and security and shall take care of all their needs and that the opposite party no. 2 shall be free to meet talk to and visit anyone she desires without any led or hindrance either by the petitioner or his family members. Any violation of the terms and conditions of the bonds or the undertaking shall lead to cancellation of his bail bonds 12. It shall also be open for the prosecution and the opposite party no. 2 her guardians to bring any violation of the foregoing conditions by the petitioner to the notice of the Court Patna High Court CR. MISC. No.789319 dt.09 08 2021 concerned which shall take immediate action on the same after giving opportunity of hearing to the petitioner 13. The petition for grant of pre arrest bail stands disposed of in the aforementioned terms 14. However in view of the short and simple direction given by the Court to the Superintendent of Police Supaul at paragraph no. 5 in the order dated 12.07.2021 which reads as “5. Learned APP shall also obtain instructions from the Superintendent of Police Supaul with regard to the claim of the petitioner that he has married the opposite party no. 2 and she and the child are living in the matrimonial home. The Superintendent of Police Supaul shall also get verified that she is living in the matrimonial home peacefully getting due acceptance from all the family members and without any fear.” not having been complied with as there is not even a whisper as to whether the parties have married the Court considers it appropriate that the Superintendent of Police Supaul appears before the Court to explain as to how such lapse has been committed by him while submitting a report. 15. Thus only for the purposes of appearance of the Superintendent of Police Supaul and consideration of his explanation the matter be listed on 23rd August 2021 as the first item at 10:30 AM. The Superintendent of Police Supaul shall file Patna High Court CR. MISC. No.789319 dt.09 08 2021 his explanation and shall appear through virtual mode if the physical functioning of the Court does not resume on the next date. 16. Learned APP shall communicate the order to the Superintendent of Police Supaul and shall also forward the link which would be sent to him for the next date (Ahsanuddin Amanullah J

If there is unity of object or purpose, all participating at different stages of the crime will be guilty of conspiracy: High Court of Delhi

For proving a charge of conspiracy, it is not necessary that all the conspirators know each and every detail of the conspiracy so long as they are co-participators in the main object of the conspiracy. It is also not necessary that all the conspirators should participate from the inception of the conspiracy to its end. This was held in the case of Ishika v State, [BAIL APPLN. 371/2021], by Hon’ble Justice Suresh Kumar Kait in the Hight Court of Delhi. 112 and 152 grams of heroin were recovered from the petitioner and the co-accused respectively. A petition was filed under section 439 Cr.P.C. for grant of regular bail in pursuance to FIR registered at Police Station Samaipur Badli for the offences punishable under sections 29/21/61/85 of Narcotic Drugs and Psychotropic Substances Act, 1985. The petitioner submitted that the contraband recovered from the petitioner was intermediate and as per the notification of intermediate quantity, the bar under section 37 of NDPS Act will not be attracted in the present case as the same is applicable only in offences involving commercial quantity. The petitioner also submitted that both the accused persons were apprehended separately and the contraband was also recovered separately, wherein there was no element of abetment or criminal conspiracy between the petitioner and the co-accused to commit the alleged offence. To strengthen his arguments, counsel for the petitioner relied upon the case of Amar Singh Ramjibhai Barot vs. State of Gujarat: (2005) 7 SCC 550,  where it was held that criminal conspiracy within the meaning of Section 29 of the NDPS Act can only be concluded if provided with complete evidence. The Prosecution after obtaining the call records of the petitioner and the co-accused submitted that it is evidently established that the petitioner and co-accused were in Mohali and their locations were at Wazirpur and thereafter in Uttam Nagar from where they procured the contraband and were going back to Punjab. The CDR also establishes the fact that there were 22 calls between the petitioner and co-accused which evidently establishes that they had conspired together to procure and transport substance to the other state. The court after considering the facts and evidence relied on the judgment of Mir Nagvi Askari v. Central Bureau of Investigation: (2009) 15 SCC 643, it was ruled that while drawing an inference from the materials brought on record to arrive at a finding as to whether the charges of the criminal conspiracy have been proved or not, it must always bear in mind that a conspiracy is hatched in secrecy and it is difficult, if not impossible, to obtain direct evidence to establish the same.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 03.03.2021 BAIL APPLN. 371 2021 Through Mr.Ajay Verma Adv. Petitioner Respondent Through Mr. Amit Chadha APP for State. SI Uday Singh PS Bawana. HON BLE MR. JUSTICE SURESH KUMAR KAIT JUDGMENTPresent petition has been filed under section 439 Cr.P.C. for grant of regular bail in pursuance to FIR No.261 2020 registered at Police Station Samaipur Badli for the offences punishable under sections 29 21 61 85 of Narcotic Drugs and Psychotropic Substances Act 1985. Case of the petitioner is that bar of section 37 of NDPS Act is not applicable in the present case therefore this court may exercise its discretion and enlarged the petitioner on bail. The substance alleged to have been recovered from the petitioner is 112 gms. of heroin and 152 gms. from the co accused Ravi Kiran. Accordingly it is evident that the contraband BAIL APPLN. 371 2021 recovered from the petitioner was intermediate and as per the notification of intermediate quantity the bar under section 37 of NDPS Act will not be attracted in the present case as the same is applicable only in offences involving commercial quantity. Counsel for the petitioner further submits that both the accused persons were apprehended separately and the contraband was also recovered separately wherein there was no element of abetment or criminal conspiracy between the petitioner and the co accused to commit the alleged offence. To strengthen his arguments counsel for the petitioner relied upon the case of Amar Singh Ramjibhai Barot vs. State of Gujarat: 7 SCC 550 delivered by Hon’ble Supreme Court of India vide judgment dated 19.09.2005 in Crl.A.1218 2005 and relevant paras are reproduced as under: “8. Although at first blush the argument of the learned counsel appeared attractive on careful appreciation of the facts on record we are satisfied that the High Court judgment is fully justified and needs to be upheld. It is true that the High Court proceeded on the footing that there was a criminal conspiracy between the appellant and the deceased Danabhai Virabhai Rabari. In our view however there was no warrant for this conclusion at all as there is no evidence to suggest that there was any such abetment and or criminal conspiracy within the meaning of Section 29 of the NDPS Act. The appellant and Danabhai Virabhai Rabari were found together but individually carrying the recovered substances. Hence it was not possible for the High Court to take the view that Section 29 was attracted. BAIL APPLN. 371 2021 9. The High Court was justified in its conclusion that the appellant could not have been punished under Sections 17 and 18 of the NDPS Act. 10. The High Court has not merely rested its conclusion on Section 29 and the fact of adding together the recoveries made from the appellant and the other accused deceased Danabhai Virabhai Rabari for the purposes of arriving at a quantity of recovery of opium more than the “commercial quantity”. The High Court has carefully analysed the facts before it and arrived at the right conclusions as we shall see 11. The appellant was found in possession of 920 grams of black liquid which prima facie smelt of opium. The FSL report indicates that the substance recovered from the appellant was “opium as described in the NDPS Act” containing 2.8% anhydride morphine apart from pieces of poppyflowers found in the sample.” Case of prosecution is that the petitioner was arrested on 10.04.2020 and accordingly search was conducted and one polythene containing heroine 112 gms was recovered from petitioner and 152 gms was recovered from co accused Ravi Kiran. Both the accused persons had disclosed that they had come from Punjab to Delhi together only to buy drugs and they had bought the recovered drug from Dwarka Mor from a Negro and were going back to Punjab. The CDRs of mobile numbers of the accused persons was obtained and it was found that they came to Delhi in active connivance to purchase the contraband and were going back to Punjab. The mobile number BAIL APPLN. 371 2021 7527826081 was being used by the petitioner and the mobile number 6280652523 was being used by the co accused and as per the call details and location record of both the above mentioned numbers they were in regular touch. The location of both the mobile numbers also corroborates their connivance as they both travelled from Punjab to Delhi on early hours of As per the CDRs record it is evidently established that on 06.04.2019 the petitioner and co accused were in Mohali and on 08.04.2020 their locations was at Wazirpur and thereafter in Uttam Nagar from where they procured the contraband and were going back to Punjab. The CDR also establishes the fact that there were 22 calls between the petitioner and co accused which evidently establishes that they had conspired together to procure and transport substance to the other state. On the similar facts the Hon’ble Supreme Court in the case of Saju v. State of Kerala: 2001(1) SCC 378 held as under: “8. ...It is a settled position of law that act or action of one of the accused cannot be used as evidence against other. However an exception has been carved out under Section 10 of the Evidence Act in the case of conspiracy. To attract the applicability of Section 10 of the Evidence Act the Court must have reasonable ground to believe that two or more persons had conspired together for committing an offence. It is only then that the evidence of action or statement made by BAIL APPLN. 371 2021 one of the accused could be used as evidence against the Further it is relevant to quote that in Mir Nagvi Askari v. Central Bureau of Investigation: 15 SCC 643 it was ruled that while drawing an inference from the materials brought on record to arrive at a finding as to whether the charges of the criminal conspiracy have been proved or not it must always bear in mind that a conspiracy is hatched in secrecy and it is difficult if not impossible to obtain direct evidence to establish the same. SCC 49 has held as under: The Supreme Court in the case of Mohd. Amin v. CBI: 15 judgments are “74. The principles which can be deduced from the above for proving a charge of conspiracy it is not necessary that all the conspirators know each and every details of the conspiracy so long as they are co participators in the main object of conspiracy. It is also not necessary that all the conspirators should participate from the inception of conspiracy to its end. If there is unity of object or purpose all participating at different stages of the crime will be guilty of conspiracy.” Further in Union of India v. Ram Samujh and Anr.:9 SCC 429 the Supreme Court observed as under: “8. To check the menace of dangerous drugs flooding the market the Parliament has provided that the person accused of offences under the NDPS Act should not be released on BAIL APPLN. 371 2021 bail during trial unless mandatory conditions provided in Section 37 namely i) there are reasonable grounds for believing that accused is not guilty of such offence and ii) that he is not likely to commit while on bail are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent accused on bail. Instead of attempting to take a holistic view of the harmful socio economic consequences and health hazards which would accompany trafficking illegally in the dangerous drugs the Court should implement the law in the spirit with which the Parliament after due deliberation has amended.” 10. The aforesaid dictum has been relied upon by this court in the case of Amit Ranjan vs. Narcotic Control Bureau Delhi in Bail Appln.1102 2019 decided on 05.07.2019. Accordingly the judgment relied upon by the petitioner is not helpful in the facts and circumstances of the case in hand. In view of above submissions I find no ground to grant bail to the petitioner. 12. The same is accordingly dismissed. MARCH 03 2021 ab SURESH KUMAR KAIT) BAIL APPLN. 371 2021

Married daughters cannot be considered to be dependent family members of the deceased: High Court of Tripura

In the case where daughters are married at the time of death of their father and each of them is living in their respective matrimonial home. Though they are entitled to claim compensation for the death of their father as his legal representatives, they cannot be. considered as dependent family members of the deceased for the purpose of deduction towards personal and living expenses. This was held in The National Insurance Company Ltd v. Smti Pratibha Das and Ors[MAC App. 11 of 2021] in the High Court of Tripura by the single bench consisting of JUSTICE MR. G.CHATTOPADHYAY. Facts are that the deceased was returning home. On his way, he was hit by the offending motorbike, he succumbed to his injuries. His wife, 3 sons, and 3 daughters being claimants filed a claim petition at the MAC Tribunal claiming compensation to the tune of Rs.25 lakhs. The Tribunal framed issues and recorded the evidence adduced by the parties and determined the compensation payable to the claimant at Rs.27,76,160/- with 9% annual interest. The insurance company has challenged the award. The counsel for the petitioner contended that as the Wife of the deceased being his only dependent family member, there would be a 1/3rd deduction as per the judgment of the Supreme Court in Sarla Verma and Ors. vs. Delhi Transport Corporation and Anr. The addition of 15% of the actual salary to the income of the deceased towards future prospects was erroneous because the deceased was above 60 years of age and the Tribunal should have assessed his annual income after deducting 10% of the income for income tax. The counsel appearing for the respondent contended that the respondent sons and daughters of the deceased were also entitled to a consortium. The Court made reference to the judgment of National Insurance Company Limited vs. Birender and Others, wherein the following observation had been made,“ that though they were major and married sons of the deceased, they had a very meager income who were largely dependent on the earning of their deceased mother. Situated thus, the Apex Court granted adequate compensation to them.” The Court also made reference to judgment of Apex Court in Manjuri Bera(Smt.) Vs. Oriental Insurance Company Ltd. and Another, and observed that, “that even if there is no loss of dependency, the claimant even he or she is the legal representative will be entitled to compensation, the quantum of which shall not be less than the liability flowing from Section 140 of the Motor Vehicles Act.”

HIGH COURT OF TRIPURA MAC App. 121 The National Insurance Company Ltd To be represented by Senior Divisional Manager) Agartala Divisional Office 42 Akhaura Road P.O. Agartala District West Tripura Pin 799001. Petitioner(s) 1.Smti Pratibha Das W O. Late Ashutosh Das 2.Sri Bapi Das S O. Late Ashutosh Das 3.Sri Apu Das S O. Late Ashutosh Das 4.Sri Tapu Das S O. Late Ashutosh Das 5.Smti. Mousumi Das W O. Sri Sanatan Das 6.Smti. Soma Das W O. Sri Biplab Das 7.Smti. Maman Das W O. Sri Ranjit Das all are resident of KhayerpurP.O. Khayerpur P.S. Budhjungnagar District West Tripura. 8.Sri Prakash DebBarma S O. Sumangal DebBarma P.O.Behalabari P.S. Champahowr District Khowai TripuraFor the Petitioner(s) For the Respondent(s) Date of hearing Date of Judgment order Whether fit for reporting Mr. A.K.Deb Adv. Mr. S.Bhattacharjee Adv. 07.04.2021 23.04.2021 No. Respondent(s) B E F O R E HON’BLE MR. JUSTICE S.G.CHATTOPADHYAY Judgment & Order By means of filing this appeal the insurance company has challenged the award dated 20.04.2019 passed by MAC TribunalWest Tripura Agartala in T.S.(MAC)1217. The claim petition arose out of the death of Ashutosh Das a permanent employee of Tripura Jute Mills Limited who died in a road traffic accident at Agartala on 19 05 2017 leaving behind his wife 03 sons and 03 daughters. Prayers made by the appellant insurer in the memo of appeal are as under: “Under the circumstances stated above it is most humbly prayed that Your Lordship would be kind enough to: 120 of 2017 from the then Ld. Member Sri. S.Bhattacharjee Motor Accident Claims Tribunal Court No.5 West Tripura District Agartala c)Issue Notice upon the respondents. After hearing both the parties Hon’ble Court would be pleased enough after setting aside the impugned Award dated 20.04.2019 kindly modify the direction of the impugned Award to the effect 1st ly that number of dependent on the income of the deceased be one(1) instead of sevenand thus 1 3rd instead of 1 5th of the monthly income be deducted as personal expenses 2nd ly 10% of the monthly salary would be deducted as income tax in order to assess actual monthly income of the deceased and 3rd ly no amount as future prospect would be added with the monthly income since the deceased was above 60 years of age at the time of death. ever pray.” For this act of kindness the applicant shall The insurer has thus assailed the impugned award raising the following issues: i)Since the claimants other than the wife of the deceased were not dependent family members of the deceased 1 5th deduction from the income of the deceased for personal and living expenses made by the Tribunal for the purpose of assessing loss of dependency was erroneous. Wife of the deceased being his only dependent family member there would be 1 3rd deduction as per the judgment of the Supreme Court in Sarla Verma and Ors. vs. Delhi Transport Corporation and Anr. reported in 6 SCC 121 ii) Addition of 15% of the actual salary to the income of the deceased towards future prospect was erroneous because the deceased was above 60 years of age and as per the decision of the Apex Court in the case of National Insurance Company vs. Pranay Sethi reported in 16 SCC 680 there would be no such deduction where the deceased exceeded 60 years of age. iii) Tribunal should have assessed his annual income after deducting 10% of the income for income tax. In view of the limited grounds of appeal this court will not go into other issues save and except the issues raised by the insurer Factual background of the case is that on 18 05 2017 the deceased after visiting his ailing daughter in law in Asha nursing home at Palace compound Agartala was returning home at around 8.30 p.m. On his way he was hit by the offending motor bike carrying registration No.TR 01 0568. As a result he sustained grievous injuries. Despite treatment in AGMC and GBP Hospital at Agartala he succumbed to his injuries at around 2.30 a.m on the following day. 7] His wife 3 sons and 3 daughters being claimants filed a claim petition at the MAC Tribunal West Tripura Judicial District at Agartala claiming compensation to the tune of Rs.25 lakhs. On the basis of the pleadings of the parties the Tribunal framed issues and recorded the evidence adduced by the parties and determined the compensation payble to the claimant at Rs.27 76 160 with 9% annual interest on the said amount w.e.f. the date of filing of the claim petition till payment and passed the following order: “O_ R_ D_ E_ R_ 17. In the result claim is awarded in following terms: Claimant petitioners are entitled to get the award of Twenty Seven Lacs Seventy Six Rs.27 76 160 thousand one hundred sixty) only with 9% Simple interest per annum from the date of registration of claim i.e w.e.f. 05.07.2017 till realization from Noticee the National Insurance Company Ltd. having their Divisional Office at Agartala ii) Claimant petitioner No.1 Smt. Pratibha Das being the widow of deceased is exclusively entitled to get the amount awarded under the head of consortium with interest and the rest part of amount be equally divided among all the claimant petitioners iii) 75% of the total share of claimant petitioner No.1 Smt. Pratibha Das be invested by purchasing FD certificate from any Nationalized Bank at least for the next 5 years and no loan or advance or pre mature withdrawal shall be allowed without prior sanction of this Tribunal. However she shall have liberty to withdraw the monthly interest therefrom. Rest part of her share be directly transferred to her individual bank account to 7 shall also be iv) 50 % of the share of award of each other claimant invested by petitioners No.2 purchasing FD Certificate from any Nationalized Bank at least for the next 5 years for better interest of their loan or advance or premature future and no withdrawal shall be allowed without prior sanction of this Tribunal. However they shall have liberty to withdraw the monthly interest therefrom. Rest part of their share shall directly be transferred to their individual bank account v) Noticee i.e. the National Insurance Company Ltd shall within 30 days of the date of announcing the award by this Tribunal deposit the entire amount awarded in favour of the Motor Accident Claims Tribunal West Tripura Agartala”. As noted the appellant insurer has challenged this award raising 3 grounds which have been mentioned above. In so far as the deduction for personal and living expenses is concerned the Tribunal has deducted 1 5th of the income of the deceased as per judgment of the Supreme Court in Sarla Verma supra) since the number of dependent family members exceeded 6(six). According to the appellant it would be 1 3rd since none other than the claimant wife of the deceased was actually a dependent family member of the deceased. I have Heard Mr. A.K.Deb learned counsel appearing for the appellant as well as Mr. S.Bhattacharjee learned counsel appearing for the respondent. Counsel appearing for the appellant submits that at the time when the claim petition was filed at the Tribunal each of the 03 daughters of the deceased were married and the claimant sons of the deceased were also adult and they were independent earning members of the family. Mr.A.K.Deb learned counsel representing the insurance company having relied on the survival certificate has contended that the survival certificate would show that each of his 03 sons were above 30 years of age when their father died and the eldest son was 37 years old and it would also appear from the impugned award of the Tribunal that each of the daughters were also married when their father died in the accident. According to learned counsel despite these facts being placed on record the married daughters and sons of the deceased were considered as dependent family members of the deceased against law and loss of dependency was determined by the Tribunal on the basis of such erroneous finding. Learned counsel has therefore urges this court to re assess the loss of dependency after deducting the personal and living expenses of the deceased in terms of the method laid down by the Apex Court in the case of Sarla Verma It has also been contended by Mr.A.K.Deb learned counsel of the appellant that the deceased was a salaried person and as such the income he used to earn was taxable and despite his income being taxable the Tribunal did not make any deduction for income tax at the time of determination of his income which is grossly erroneous. It is also contended by learned counsel of the appellant that the deceased had grown up children at the time of when he died and the eldest son of the deceased was 37 years old as per the survival certificateIn support of his contention Mr.Deb has relied on the decision of the Apex Court in New India Assurance Company Ltd. Vs. Somwati and Ors. reported in2 TLR SC 162 wherein the Apex Court in paragraph 31 referred to its decision in the case of Magma Alias Chuhru Ram & Ors reported in18 SCC 130 in which the concept of consortium was explained as follows: “31. The next judgment which needs to be noted is Magma General Insurance Company Limited versus Nanu Ram alias Chuhru Ram and others 18 SCC 130 the concept of consortium was explained in paragraphs 21 22 and 23 which are as follows: 21.2. Parental consortium is granted to the child upon the premature death of a parent for loss of “parental aid protection affection society discipline guidance and training”.... It is therefore contended by Mr.Deb learned counsel that no question of granting any parental consortium arises in the case. On the premises aforesaid learned counsel urges the court for modification of the award of the Tribunal. Mr.S.Bhattacharjee learned counsel appearing for the respondents opposes the submission of the counsel of the appellant with regard to deduction for personal and living expenses and submits that the Tribunal has categorically observed in paragraph 12 of the award that the appellant did not deny the claim of the respondents at the Tribunal that they were dependent family members of the deceased. According to Mr.Bhattacharje learned counsel now in the appeal they cannot take the plea that deduction made by the Tribunal for personal and living expenses were incorrect because the claimants were not dependent family members of the deceased. With regard to the contention of the appellant that the deceased exceeded the age of 60 years and therefore 15% increase in his income for future prospect made by the Tribunal was incorrect it is submitted by learned counsel of the respondents that age of the deceased was recorded as 59 by the Tribunal on the basis of documentary evidence submitted by the claimants. Moreover he was in Government service at the time of his death. Therefore such contention of the appellant is not at all justifiable. With regard to the claim of the appellant for deduction of income tax for assessment of the income of the deceased it is submitted by Mr. Bhattacharjee learned counsel of the respondents that the deceased was a salaried employee in Tripura Jute Mills Limited. Further submission of learned counsel is that it is no case of the appellant that the deceased had income from other source other than his income from salary. In this situation objection of the appellant is not entertainable unless by producing evidence such as LPC of the deceased the appellant can establish that income of the deceased was within taxable range and employer of the deceased failed to deduct TDS from his salary. In support of his contention Mr.Bhattacharjee relied on the decision of the Apex Court in Vimal Kanwar and others vs. Kishore Dan and Ors reported in7 SCC 476 wherein the Apex Court vide paragraph 23 of the judgment has held as follows: “23 In Sarla Verma & Anr.(Supra) this Court held: “20.Generally the actual income of the deceased less income tax should be the starting point for calculating the compensation.” This Court further observed that: “24.......Where the annual income is in taxable range the word ‘actual salary’ should be read as “actual salary less tax”. Therefore it is clear that if the annual income comes within the taxable range income tax is required to be deducted for determination of the actual salary. But income tax from salary while deducting necessary to notice the nature of the income of the victim. If the victim is receiving income chargeable under the head “salaries” one should keep in mind that under Section 192of the Income tax Act 1961 any person responsible for paying any income chargeable under the head “salaries” shall at the time of payment deduct income tax on estimated income of the employee from “salaries” for that financial year. Such deduction is commonly known as tax deducted at source of the Income tax Act 1961. Therefore in case the income of the victim is only from “salary” the presumption would be that the employer under Section 192of the Income tax Act 1961 has deducted the tax at source from the employee’s salary. In case if an objection is raised by any party the objector is required to prove by producing evidence such as LPC to suggest that the employer failed to deduct the TDS from the salary of the employee. However there can be cases where the victim is not a salaried person i.e. his income is from sources other than salary and the annual income falls within taxable range in such cases if any objection as to deduction of tax is made by a party then the claimant is required to prove that the victim has already paid income tax and no further tax has to be deducted from the income.” It is therefore submitted by Mr.Bhattacharjee learned counsel that contention of the appellant with regard to deduction of income tax for determination of the income of the deceased is It is true that as per the survival certificate the deceased was survived by his wife 3 sons and 3 married daughters. Counsel for the appellant has submitted that the sons being earning members of the family and the daughters being married they would not be considered as dependent family members of the deceased. Therefore 1 5th deduction made by the Tribunal towards personal and living expenses for determination of loss of dependency was incorrect. Wife of the deceased being the only dependent member deduction for personal and living expenses in the given context would be 1 3rd. Since the deceased was 59 years at the time of his death in the accident the Tribunal by the impugned award made the addition of 15% for future prospect for assessment of his income. There is no wrong in the finding of the Tribunal because the deceased had a permanent job and as per the decision of the Apex Court in the case of Pranay Sethi(supra) in such situation the deduction should be 15%. In the case of Manjuri Bera(Smt.) Vs. Oriental Insurance Company Ltd. and Another reported in10 SCC 643 the Apex Court held that even if there is no loss of dependency the claimant even he or she is the legal representative will be entitled to compensation the quantum of which shall not be less than the liability flowing from Section 140 of the Motor Vehicles Act. In National Insurance Company Limited vs. Birender and Others reported in 2020) 11 SCC 356 the Apex Court having made reference to Manjuri Bera(supra) held that liability to pay compensation under the Motor Vehicles Act does not cease because of absence of dependency of the legal representatives. Section 166 of the Motor Vehicles Act provides inter alia that an application for compensation where death has resulted from the accident may be made by all or any of the legal representatives of the deceased. In the said case of National Insurance Company Limited(supra) the appellant insurance company contended that the respondents were not entitled to compensation for loss of dependency as they were major and earning. In the context of the case the Apex Court held that though they were major and married sons of the deceased they had a very meager income who were largely dependent on the earning of their deceased mother. Situated thus the Apex Court granted adequate compensation to them. In the present context counsel appearing for the claimants has submitted that none of the sons of the deceased were in gainful employment and they were largely dependent on the income of their father who used to live together in a joint mess. The appellant could not prove the contrary by adducing evidence. In these circumstances the 3 sons though married should be treated as the dependent family members of the deceased. In respect of the daughters there is no denial of the fact that all the 03 daughters were married at the time of death of their father. Each of them was living in their respective matrimonial home. Therefore though they were entitled to claim compensation for the death of their father as his legal representatives they cannot be considered as dependent family members of the deceased for the purpose of deduction towards personal and living expenses. In view of what is discussed above the dependent family members would be 4 in this case and there should be 1 4th deduction towards personal and living expenses instead of 1 5th deduction. As regards the contention of the counsel of the appellant for deduction of income tax in view of the ratio decided by the Apex Court in Vimal Kanwar(supra) and in view of the fact that income of the deceased was not in the taxable range as per the Income Tax Act 1961 submission of the counsel of the appellant made in this regard lacks merit. With regard to payment of consortium it was contended by the counsel of the respondent that the trial court should have granted parental consortium in this case. Counsel relied on the decision of the Supreme Court in Magma General Insurance Company Ltd. Vs. Nanu Ram and Ors. reported in18 SCC 130 and Apex Court’s decision in United India Insurance Co. Ltd. vs. Satinder Kaur and Ors. reported in AIR 2020 SC 3076. In the case of Magma General Insurance Co. Ltd.(supra) deceased was a bachelor. Father brother and sisters filed the claim petition. The Apex Court granted 40 000 to each of the claimant brother and sister for loss of filial consortium. In the case of United India Insurance Co.Ltd the Apex Court granted 40 000 to each of the children of the deceased for loss of parental consortium. Each of the children in that case were minor and the Apex Court observed that parental consortium is granted to the child upon the premature death of a parent for loss of parental aid protection affection society discipline guidance and training. In the case in hand the sons and daughters of the deceased were all married when the deceased died in the accident. Situated thus respondents cannot derive any benefit from the judgments cited above. The Tribunal did not commit any error in declining to grant consortium to the claimant sons and daughters of the deceased. In view of the aforesaid discussion the amount payable towards compensation will have to be recalculated. Accordingly after recalculation the impugned award is modified as under: Loss of dependency due to loss of income is calculated at ₹29 41 488[(₹27 236 X12X9)+(15% future prospect) = ₹25 37 034 in addition the claimants would be entitled to a sum of ₹70 000 in terms of the mandate in paragraph 59.8 of Pranay Sethi supra). Thus a total sum of ₹26 07 034 is payable to the claimants as compensation. The rate of interest awarded by the Tribunal will remain unchanged which will be paid from the date of filing of the claim petition at the tribunal till payment. The claimants will have equal share of the compensation except the amount granted to the wife of the deceased for loss of consortium. Amount already paid if any shall be deducted from the amount awarded hereunder. In view of the above observation and directions the impugned award dated 20 04 2019 in T.S.(MAC)120 of 2017 passed by the Member MACT(5)West Tripura Agartala titled as Smt. Pratibha Das and 6 Ors. vs. Prakash Debbarma and Anr. stands modified to the extent as indicated above. Appellant insurer is directed to pay the said amount of compensation to the claimant respondents within a period of 6 weeks by depositing the same at the Tribunal. In terms of the above present appeal is disposed of. Pending application(s) if any also stand disposed of. JUDGE Saikat Sarma P.A

Twin conditions to be satisfied before issuing directions under Order 38 Rule 5 of CPC : Delhi High Court

Merely having a just or valid claim or a prima facie case will not entitle the plaintiff to an order of attachment before the, unless it is established that the defendant was attempting to remove or dispose of his assets with the intention of defeating the decree that may be passed. The High Court bench consisting of J. Vibhu Bakhru elaborated upon the object of Order 38 Rule 5 of CPC in the matter of Beigh Construction Company Private Limited v. Varaha Infra Limited [O.M.P.(I) (COMM.) 372/2020 & I.A. 207/2021]. The respondent was awarded a contract for executing an Engineering, Procurement and Construction Contract (EPC Contract) by the Maharashtra State Road Development Corporation (MSRDC). The present petition arose out of a dispute arising between the parties in connection with a Memorandum of Understanding whereby the respondents had agreed to sub-contract the execution of the EPC to the petitioner. In terms of the Agreement, it was agreed that the petitioner would execute the EPC Contract and the entire amount received from the employer (MSDRC) would be deposited in an escrow account. The petitioner would be entitled to 99% and the respondent would be entitled to 1%. The petitioner’s grievance was that the terms of the Agreement were not being complied with and that the petitioner had not received 99% of the amount disbursed by the MASDRC. The petitioner alleged that the respondent had illegally and in breach of its obligations, retained substantial portion of the same. The learned counsel for the respondent argued that the  agreement  was terminated and this was also communicated the MSDRC. The counsel referred to a letter issued by MSRDC alleging that the progress of the works was slow and was being done in a haphazard and unplanned manner. The counsel for the petitioner countered that the petitioner was seeking its share for work executed before the termination of the contract and not after.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Judgment: 07th January 2021 O.M.P.(I)372 2020 & I.A. 207 2021 BEIGH CONSTRUCTION COMPANY PRIVATE LIMITED ..... Petitioner VARAHA INFRA LIMITED .....Respondent Through Mr Arun Kathpalia Senior Counsel with Mr Angad Mehta and Mr Kauser Hussain Advocates. Through Mr Rajeev Sharma Advocate with Mr Abhishek Birth Ms Somya Budholia Mr Prateek Seth and Mr Adeem Ahmed Advocates. HON BLE MR. JUSTICE VIBHU BAKHRU Hearing held through videoconferencing] VIBHU BAKHRU J.The petitioner has filed the present petition under Section 9 of the Arbitration and Conciliation Act 1996inter alia praying as under: “a) Restrain the Respondent from taking any coercive steps against the Petitioner including terminating the Memorandum of Understanding dated 09.01.2019 till the final adjudication of the disputes by the Arbitral Tribunal. O.M.P.(I)372 2020 b) Restrain the Respondent from appropriating monies from the Project in any manner other than in the manner prescribed in Memorandum of Understanding dated 09.01.2019 till the final adjudication of the disputes by the Arbitral c) Restrain the Respondent from taking any coercive steps against the Petitioner which would adversely affect the Petitioner in undertaking its obligations and enjoying its rights under the Memorandum of Understanding dated 09.01.2019 till the final adjudication of the disputes by the Arbitral Tribunal. d) grant ad interim ex parte reliefs in terms of Prayerstoabove” The respondent was awarded the contract for executing an Engineering and Construction Contract “Rehabilitation & Up gradation to 2 Lane with Paved shoulder 4 laning configuration of Wakan Pali Khopoli Road NH 548A(SH93) connecting New NHMPEW AH47and NH66from KM.0 000 to 40 600 in the state of Maharashtra on Engineering Procurement & Construction mode” by the Maharashtra State Road Development Corporation entered into the “Engineering Procurment and Construction Agreement” on 07.04.2017. The present petition arises out of disputes that have arisen the parties in connection with a Memorandum of O.M.P.(I)372 2020 Understanding dated 09.01.2019whereby the respondent had agreed to sub contract the execution of the EPC Contract to the petitioner. In terms of the Agreement it was agreed that the petitioner would execute the EPC Contract and the entire amount received from the employer would be deposited in an escrow account. The petitioner would be entitled to 99% of the said amounts and the respondent would be entitled to the balance 1%. It is the petitioner s grievance that the terms of the Agreement are not being complied with. The petitioner claims that it has executed works for an amount of ₹39 29 44 384.07 against which a payment of ₹32 00 60 345.20 has been released by MSRDC after retaining a sum of ₹1 93 52 129.72. However the petitioner has not received 99% of the said amounts disbursed by MSRDC. The petitioner alleges that the respondent has illegally and in breach of its obligations retained substantial portion of the same. 6. Mr Kathpalia learned senior counsel appearing for the petitioner submitted that MSRDC is now in the process of releasing the retention money in proportion to the work completed in terms of a policy circular Atmanirbhar Bharat: Relief for Contractors Developers of Road Section no. Ro MUM GEN Corrs 2020 21 210 dated 08.06.2020) issued by the Ministry of Road Transport and Highways Government of India. He submits that since the said amounts are directly relatable to O.M.P.(I)372 2020 the works executed by the petitioner directions ought to be issued to the respondent to ensure that it does not receive the said sums and makes over the said sums directly to the petitioner. He earnestly contends that the amounts received or to be received by the respondent from MSRDC are in the nature of amounts received in trust and therefore cannot be appropriated by the respondent. 7. Mr Rajeev Sharma learned counsel appearing for the respondent has countered the aforesaid submission. He points out that the Agreement dated 09.01.2019 was terminated on 04.10.2020 and this was also communicated to MSRDC on 06.10.2020. He referred to a letter dated 19.10.2020 sent by MSRDC acknowledging that the sub contract between the petitioner and the respondent stood terminated. 8. Mr Sharma referred to a letter dated 20.03.2020 issued by MSRDC alleging that the progress of the works was slow and the same was being done in a haphazard and unplanned manner. It had further cautioned the respondent to take corrective steps failing which it would withdraw the works and debarthe respondent for a period of five years. He also referred to certain other letters written by MSRDC alleging that the progress of work was extremely slow. He referred to a letter dated 16.06.2020 whereby MSRDC had put the respondent to notice that the execution of the works would monitored for a period of one month and if there was no improvement the works would be withdrawn and the EPC Contract would be cancelled. By a letter dated 24.09.2020 MSRDC had indicated its ‘intention to terminate’ the O.M.P.(I)372 2020 contract on account of slow progress of the work alleging that the respondent had not shown any will to complete the work and had failed to live up to its commitments. He submits that since the execution of the works was sub contracted to the petitioner it was responsible for not performing the works as was agreed. He further submitted that prior to the parties entering into the Agreement the respondent had entered into a sub contract with one M s Monica Constrotech Private Limited. The said sub contract was terminated however there were some disputes with the said sub contractor. Accordingly the petitioner and the respondent had entered into a tripartite agreement with M s Monica Constrotech Private Limited Supplementary Memorandum of Understanding dated 25.02.2019 whereby the parties had undertaken certain obligations towards M s Monica Constrotech Private Limited. He states that disputes have arisen regarding performance of the said obligations as well. He further submitted that the petitioner had used the machinery of M s Monica Constrotech Private Limited however had failed to pay its dues. 10. Mr Kathpalia countered the submissions. He clarified that the petitioner was seeking its share of the disbursals made by MSRDC for works executed after 09.01.2019 and not prior to the said date. He further contended that although MSRDC had issued letters alleging slow progress the respondent had contested the same and according to it the said allegations were untrue. O.M.P.(I)372 2020 I have heard the learned counsel appearing for the parties. 12. At the outset it is relevant to note that although the present petition was moved on 20.11.2020 the petitioner has not taken any steps for constitution of the Arbitral Tribunal. Admittedly the petitioner has as yet not issued any letter invoking the arbitration clause under the Agreement(COMM.) 372 2020 from MSRDC essentially amounts to seeking a directions to secure the amounts claimed as due and payable by the respondent. It is well settled that orders for interim measures of protection under Section 9 of the Act cannot be passed ignoring the well settled principles as are applicable for exercising the analogous power conferred under Order XXXIX Rules 1 and 2 and Order XXXVIII Rule 5 of the Code of Civil Procedure 1908Ltd.:7 SCC 125 Nimbus Communications Limited v Board of Control for Cricket in India: 2014Arb LR 113 and C V Rao and Krishnapatnam Port Company Limited China Investments Private Limited v. Strategic Port Investments KPC Ltd. 218DLT 20016. As noticed above the petitioner essentially seeks an order under Section 9(1)(ii)(b) of the Act to secure the amounts which it asserts are owed to it. This is plainly seeking an order in the nature of attachment before judgement. Therefore the principles as applicable under Order XXXVIII Rule 5 of the CPC would guide the grant of such relief.DLT 816 Global Company v M s National Fertilizers Limited: AIR 1998 Delhi 397 Gatx India Pvt Ltd v Arshiya Rail Infrastructure Limited & Anr: 216 216 DLT 20 and Natrip Implementation Society v. IVRCL Limited: Arb. A.21 2016 decided on 31.08.2016] 19. In Raman Tech & Process Engineering Co. and Anr. v. Solanki Traders:2 SCC 302 the Supreme Court had explained the twin O.M.P.(I)372 2020 conditions that are required to be satisfied before issuing any directions in terms of Order XXXVIII Rule 5 of the CPC. First that the plaintiff must establish a strong prima facie case and second that the court is prima facie satisfied that the defendant is acting in a manner so as to defeat the realisation of the decree that may be passed. The relevant extract of the said decision is set out below: supplemental proceedings “4. The object of applications for arrest or attachment before judgment grant of temporary injunctions and appointment of receivers) is to prevent the ends of justice being defeated. The object of Order 38 Rule 5 CPC in particular is to prevent any defendant from defeating the realization of the decree that may ultimately be passed in favour of the plaintiff either by attempting to dispose of or remove from the jurisdiction of the court his movables. The Scheme of Order 38 and the use of the words "to obstruct or delay the execution of any decree that may be passed against him" in Rule 5 make it clear that before exercising the power under the said Rule the court should be satisfied that there is a reasonable chance of a decree being passed in the suit against the defendant. This would mean that the court should be satisfied that the plaintiff has a prima facie case. If the averments in the plaint and the documents produced in support of it do not satisfy the court about the existence of a prima facie case the court will not go to the next stage of examining whether the interest of the plaintiff should be protected by exercising power under Order 38 Rule 5 CPC. It is well settled that merely having a just or valid claim or a prima facie case will not entitle the plaintiff to an order of attachment before judgment unless he also establishes that the defendant is attempting to remove or dispose of his assets with the intention of defeating the decree that may be passed. Equally well settled is the position that even where the O.M.P.(I)372 2020 defendant is removing or disposing his assets an attachment before judgment will not be issued if the plaintiff is not able to satisfy that he has a prima facie underlined for emphasis] 17. However it is seen that the present petition does not contain any averments to the effect that the respondent is acting in the manner so as to frustrate an award that may be made by made in favour of the petitioner. There are neither any averments to the said effect nor any material placed on record that would prima facie satisfy the Court in this regard. 18. Notwithstanding the above Mr Kathpalia has earnestly contended that the respondent is acting in a manner to frustrate any claim that may be made by the petitioner by ensuring that it denudes itself for substance. He also states that there is material available to establish the same. Be that as it may no averments have been made in the present petition to the aforesaid effect. More importantly since no material has been placed on record that would satisfy this Court that the respondent is acting in a premeditated manner to defeat the recovery of any amount that may be awarded in favour of the petitioner this Court does not consider it apposite to accede to the prayer made in this regard. Insofar as the prayer for restraining the respondent from terminating the Agreement is concerned the respondent has already terminated the same and thus the said prayer does not survive. In any O.M.P.(I)372 2020 view the Agreement is determinable and therefore it would not be apposite to pass any order restraining the respondent from terminating the Agreement in view of Section 14(d) of the Specific Relief Act 1963. In view of the above the present petition is dismissed. It is however clarified that this order would not preclude the petitioner from moving an appropriate application before the Arbitral Tribunal if so JANUARY 7 2021 VIBHU BAKHRU J O.M.P.(I)372 2020

Appellant released on bail  after being arrested under Sections 341/323/504/506/34 IPC and 3(1)(r)(s)/3(2)(ra) of the SC/ST Act: High court Of Patna

The additional session judge on the 15/09/2020 passed an order rejecting the plea for anticipatory bail for the appellant therefore The counsel for the appellant filed a motion slip on the 7th of July 2021 allowed by the court, an appeal directing against the said order. In connection with the Chapra SC/ST PS Case No. 23 of 2020 dated 13.03.2020, the appellant was arrested under Sections 341 IPC, “Punishment for wrongful restraint”, section 323, “ Punishment for voluntarily causing hurt”, section 504, “Intentional insult with intent to provoke breach of the peace” Section 506, “Punishment for criminal intimidation”, section 34 IPC, “Acts done by several persons in furtherance of common intention.” And 3(1)(r)(s)/3(2)(ra) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, “Punishments for offenses of atrocities.” This judgment was given in the high court of judicature at Patna by Honorable Mr. Justice Ahsanuddin Amanullah on the 13th of July 2021 in the case of Raju Prasad Gupta @Raju Kumar v/s the state of Bihar criminal appeal No.9 of 2021, Mr. Mukesh Kumar represented as the advocate for the petitioner and Ms. Usha Kumari represented as the special public prosecutor for the state of Bihar. The proceedings of the court were held through video conference. The following are the facts of the case, the informant was watering an under-construction wall the appellant was along with five others approached the spot and abused the informant by taking caste name and dragged him, and assaulted him and his wife was also abused all in the name of caste. According to the counsel for the appellant, he submitted before the courts that the accusation was unnecessary and was initiated due to the rivalry between the parties. The informant is a laborer working under one Mr. Santosh Gupta. Now the wife of the appellant and Mr. Santosh bought land from Mr. Singh and due to some dispute the said case has been filed and not due to caste dispute. He conceded that no allegation was made of using abusive language, the counsel stated that the appellant has no criminal antecedent, he also mentioned that the informant had written to the police that the matter has been compromised. The special public prosecutor held that even though there have been accusations of abuse in the name of caste and general assault but since the informant has withdrawn the complaint and compromised the matter there has been no further objection. The court held that the appellant will be released on bail upon furnishing bail bonds of Rs.25,000 and two sureties of an amount satisfactory to the additional session judge. Bail will be given only under the conditions laid down in section 438(2) Cr.P.C. “(i) that one of the bailors shall be a close relative of the appellant, and (ii) that the appellant shall cooperate with the Court and the police/prosecution.” Failure to cooperate shall lead to the cancellation of his bail bonds.

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEALNo.21 Arising Out of PS. Case No. 23 Year 2020 Thana SC ST District Saran Raju Prasad Gupta @ Raju Kumar 38 years Son of Late Bharat Prasad Gupta R o Village New Colony Katahari Bagh P.S. Chapra Town District Saran Chapra The State of Bihar ... Appellant s ... Respondent s For the Appellant s For the State CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH Mr. Mukesh Kumar Singh Advocate Ms. Usha Kumari Spl. PP Date : 13 07 2021 The matter has been heard via video conferencing 2. The case has been taken up out of turn on the basis of motion slip filed by learned counsel for the appellant on 07.07.2021 which was allowed 3. Heard Mr. Mukesh Kumar Singh learned counsel for the appellant and Ms. Usha Kumari learned Special Public Prosecutorfor the State 4. The present appeal is directed against the order dated 15.09.2020 passed by the learned Additional Session Judge First Special Judge SC ST Saran in ABP No. 1678 of 2020 by which the prayer for anticipatory bail of the appellant has been rejected 5. The appellant apprehends arrest in connection with Chapra SC ST PS Case No. 23 of 2020 dated 13.03.2020 Patna High Court CR. APPNo.21 dt.13 07 2021 instituted under Sections 341 323 504 506 34 of the Indian Penal Code and 3(1)(r)(s) 3(2)(ra) of the Scheduled Castes and Scheduled Tribes Act 1989 hereinafter referred to as the ‘SC ST Act’ 6. The allegation against the appellant is that he along with five others had come at the spot where the informant was watering the under construction wall of one Santosh Kumar Gupta and had abused him taking caste name as to why he was watering the said wall and further that he was dragged and assaulted and his wife was also abused 7. Learned counsel for the appellant submitted that he has been unnecessarily made an accused due to rivalry between Santosh Kumar Gupta and co accused Bhupendra Singh. It was submitted that the informant is a labourer servant of Santosh Kumar Gupta against whom co accused Bhupendra Singh has lodged Chapra Town PS Case No. 620 under Sections 420 406 386 467 468 of the Indian Penal Code on 05.03.2020 and as a counter blast the present case has been filed. It was submitted that since the wife of the appellant and Santosh Kumar Gupta have bought part of land from Bhupendra Singh and due to some dispute Bhupendra Singh has filed the said case against Santosh Kumar Gupta and Santosh Kumar Gupta Patna High Court CR. APPNo.21 dt.13 07 2021 has got the present case lodged through his servant the informant and as the appellant had good term with Bhupendra Singh he has also been made accused. It was submitted that besides no case being made out under the SC ST Act as there is no allegation that in public view any abusive language or assault had taken place later on the informant having realised his mistake has submitted a written application to the Officer in Charge of the concerned police station stating that he had compromised the matter as far as the appellant is concerned and that he had no grievance against him now. Learned counsel submitted that the appellant has no other criminal antecedent 8. Learned Sp. PP submitted that though there is allegation of abuse by caste name and also general and omnibus assault it appears that the informant himself has withdrawn the complaint as far as the appellant is concerned 9. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties in the event of arrest or surrender before the Court below within six weeks from today the appellant be released on bail upon furnishing bail bonds of Rs. 25 000 No.21 dt.13 07 2021 Saran Chapra in SC ST PS Case No. 220 subject to the conditions laid down in Section 438(2) of the Code of Criminal Procedure 1973 and furtherthat one of the bailors shall be a close relative of the appellant andthat the appellant shall cooperate with the Court and the police prosecution. Failure to cooperate shall lead to cancellation of his bail bonds 10. It shall also be open for the prosecution to bring any violation of the foregoing conditions of bail by the appellant to the notice of the Court concerned which shall take immediate action on the same after giving opportunity of hearing to the appellant 11. Accordingly the appeal is allowed. The order dated 15.09.2020 passed by the learned Additional Session Judge First Special Judge SC ST Saran in ABP No. 1678 of 2020 stands set aside (Ahsanuddin Amanullah J

Transaction in respect of immovable property i.e., site or plot falls within the definition of Sec. 2 (42) of Consumer Protection Act, 2019: Karnataka State Consumer Disputes Redressal Commission

The Respondent being a Real Estate Company offered luxury apartments and plotted development project. Thus, also engaged in construction. So, when the appellant approached the District Commission, it dismissed the complaint as it found it unmaintainable as per Sec.2(42) of the Consumer Protection Act, 2019 and referred to Ganeshlal v. Shyam (2014) 14 SCC 773, and held that ‘immovable property’ did not come under the purview of ‘goods’. However, this was an erroneous judgement as observed by the State Commission in Annamma Jiney Jose v. M/s Svamitva Infra Pvt. Ltd, [A/494/2021] before Hon’ble Mr. Ravishankar (Presiding Member) and Hon’ble Mrs. Smt. Sunita Channabasappa Bagewadi (Member). As admitted by the Respondent, it was clear that they were engaged in the construction. The State Commission referred Section 2(37) of the Act, of which (ii)(a) provides that, “a product seller is a service provider but does not include a seller of immovable property, unless such person is engaged in the sale of constructed house or in the construction of homes or flats”. Furthermore, Section 2(42) which defines service, also includes ‘housing construction’. Therefore, it was concluded that since the respondent’s development project consisted of a 40 feet road, 30 feet asphalted road with pedestrian walkways, included underground sewage drains and treatment plan, aimed at providing luxury lifestyle such as, a stylish entrance gate, beautiful garden, jogging track etc; it was clearly engaged in construction business and provided a housing construction service. Ultimately, the Commission observed that, “The District Commission without considering these facts dismissed the complaint as not maintainable and supported the reasons with decision of Hon’ble Supreme Court of India in the matter between Ganeshlal v/s Shyam reported in (2014) 14 SCC 773 Civil Appeal No.331/2007 dt. 26.09.2013. In Ganeshlal v/s Shyam case, the District Commission allowed the complaint and directed the appellant to deliver the possession of the concerned plot. The State Commission and Hon’ble National Commission dismissed the appeal when the case was proceeded at Hon’ble Supreme Court of India, the advocate for appellant submitted that the appellant has executed the Sale Deed and the concerned plot of land has been handed over to the respondent. Hence, the Hon’ble Supreme Court of India cannot grant any relief to the Consumer/complainant. Hence, in our opinion, the complaint is maintainable u/s 2 (42) of Consumer Protection Act, 2019 and the reasons of District Commission supported by the decision of the Hon’ble Supreme Court which is different to the present case……The appeal is allowed. The impugned order passed by the District Commission, Bangalore is hereby set aside and matter is remanded to the District Commission directing them to hear the case on merits and to dispose the same expeditiously to meet the ends of justice.” Click Here to Read the Judgement

KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION BASAVA BHAVAN BANGALORE First Appeal No. A 494 2021 Date of Filing : 05 Jul 2021 Arisen out of Order Dated 30 03 2021 in Case No. CC 255 2021 of District Bangalore 2nd 1. Annamma Jiney Jose W o Sunil Kumar sabu aged about 32 years Psychological counsellor R at No. 409 Chikkamaranahalli New BEL rd Mathikere Bangalore 1. M s Svamitva Infra Pvt Ltd No.110 2 1st floor Krishnappa Layout Lal Bagh Road Bangalore 560027. Reptd by Managing Director HON BLE MR. Ravishankar PRESIDING MEMBER HON BLE MRS. Smt.Sunita Channabasappa Bagewadi MEMBER Dated : 27 Oct 2021 Final Order Judgement BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION BANGALORE DATED THIS THE 27 DAY OF OCTOBER 2021 MR. RAVISHANKAR : JUDICIAL MEMBER MRS. SUNITA CHANNABASAPPA BAGEWADI : MEMBER APPEAL NO. 494 2021 Mrs. Annamma Jiney Jose W o Mr. Sunil Kumar Sabu 1 Aged about 32 years Occ:Psychological Councilor Resident of No.409 New BEL Road Mathikere Bangalore 560 056 By Sri A.P. Sasidharan Nair M s Svamitva Infra Private Limited Floor No.110 2 1 Krishnappa Layout Lalbagh Road Bangalore 560 027 By the Managing Director MRS. SUNITA CHANNABASAPPA BAGEWADI MEMBER ORDER ON ADMISSION The appellant complainant has preferred this appeal being aggrieved by the Order dt.30.03.2021 passed in CC.No.255 2021 on the file of 2 Disputes Redressal Commission Bangalore Additional District Consumer Perused the appeal memo order passed by the District Commission and materials on record we noticed that the District Commission has dismissed the complaint at the stage of admission as the complaint filed by the complainant is not maintainable and referred Sec.2of Consumer Protection Act 2019 because the transaction in respect of immovable property i.e. site or plot does not fall within the definition of Sec.2of Consumer Protection Act 2019. Moreover the immovable property is also not comes under the purview of the goods and this reason is supported by the decision of Hon’ble Supreme Court of India in the case between Ganeshlal v s Shyam reported in14 SCC 773 Civil Appeal No.331 2007 dt. 26.09.2013 wherein it is held that 2 “Consumer Protection Services Housing Scope of Sale of a plot of land simpliciter not involving a consumer transaction i.e. not amounting to “housing construction service” cannot lead to a complaint to the Consumer Forums. Thus failure to handover possession of a plot of land in such a sale simpliciter cannot come within jurisdiction of Consumer Forums in view definition of “complaint” and “deficiency” in Consumer Protection Act 1986. However “housing construction” has been specifically covered under “service” by an amendment inserted by Act 593 with effect from 18.06.1993. As far as housing construction by sale of flats by builders or societies is concerned that would be on a different footing where a sale of plot of land simpliciter is concerned and if there is any complaint same would not be covered under Consumer Protection Act. Consumer Protection Act 1986 S 2(1)(c) (o)Transfer of Property Act 1882 S.54 and 55 Consumer Jurisdiction Scope Perused the brochure produced by the complainant. The respondent themselves stated that the respondent is a Real Estate Company and they offer premium luxury apartments and plotted development project. They began their journey into wonderful world of building homes across cities in India and abroad. The project Sylvia City has world class infrastructure like 40 feet road and 30 feet asphalted road with pedestrian walkways lined with shade giving trees underground sewage connection and storm water drains with sewage treatment plant. Luxury life style such as stylish entrance gate beautiful landscaped garden 3 years free maintenance of the site jogging track with sit out etc. which clearly shows that Svamitva Group is Real Estate Company and their project “Sylvia City” is construction linked plan. The respondent is engaged in construction business and Sec.2of Consumer Protection Act 2019 reads “Product seller” in relation to a product means a person who in the course of business imports sells distributes leases installs prepares packages labels markets repairs maintains or otherwise is involved in placing such product for commercial purpose and i. ii. A manufacturer who is also a product seller or A service provider but does not include a. a seller of immovable property unless such person is engaged in the sale of constructed house or in the construction of homes or flats a. a provider of professional services in any transaction in which the sale or use of a product is only incidental thereto but furnishing of opinion skill or services being the essence of such transaction a. a person who ii. i. acts only in a financial capacity with respect to the sale of the product 3 ii. iii. is not a manufacturer wholesaler distributor retailer direct seller or an electronic service leases a product without having a reasonable opportunity to inspect and discover defects in the product under a lease arrangement in which the selection possession maintenance and operation of the product are controlled by a person other than the lessor Moreover as per Sec.2of Consumer Protection Act 2019 which reads a. “service” means service of any description which is made available to potential users and includes but not limited to the provision of facilities in connection with banking financing insurance transport processing supply of electrical or other energy telecom boarding or lodging or both entertainment amusement or the purveying of news or other information but does not include the rendering of any service free of charge or under a contract of personal service housing construction Hence in our opinion the transaction in respect of immovable property i.e. site or plot falls within the definition of Sec. 2of Consumer Protection Act 2019 because in the present case a seller of immovable property is engaged in the sale of constructed house or in the construction of homes or flats. The District Commission without considering these facts dismissed the complaint as not maintainable and supported the reasons with decision of Hon’ble Supreme Court of India in the matter between Ganeshlal v s Shyam reported in14 SCC 773 Civil Appeal No.331 2007 dt. 26.09.2013. In Ganeshlal v s Shyam case the District Commission allowed the complaint and directed the appellant to deliver the possession of the concerned plot. The State Commission and Hon’ble National Commission dismissed the appeal when the case was proceed at Hon’ble Supreme Court of India the advocate for appellant submitted that the appellant has executed the Sale Deed and the concerned plot of land has been handed over to the respondent. Hence the Hon’ble Supreme Court of India cannot grant any relief to the Consumer complainant. Hence in our opinion the complaint is maintainable u s 2of Consumer Protection Act 2019 and the reasons of District Commission supported by the decision of the Hon’ble Supreme Court which is different to the present case. Hence the following The appeal is allowed The impugned order passed by the District Commission Bangalore is hereby set aside and matter is remanded to the District Commission directing them to hear the case on merits and to dispose the same expeditiously to meet the ends of justice Forward free copies to both parties Sd Sd MEMBER JUDICIAL MEMBER 4 HON BLE MR. Ravishankar HON BLE MRS. Smt.Sunita Channabasappa Bagewadi 5

The relaxation cannot be prayed as a matter of right.: Supreme Court

If a conscious decision is taken not to grant the relaxation, merely because Rule permits relaxation, no writ of mandamus can be issued directing the competent authority to grant relaxation in qualifying service as held by the Hon’ble Supreme Court through the learned bench led by Justice M.R. Shah in the case of State of U.P. & Ors. v. Vikash Kumar Singh & Ors. (CIVIL APPEAL NO. 6868 OF 2021) The Brief Facts of the case are that Feeling aggrieved and dissatisfied with the impugned judgment and order dated 24.07.2020 passed by the Division Bench of the High Court of Judicature at Allahabad (Lucknow Bench) by which the Division Bench of the High Court has dismissed the Special Appeal (Defective Complaint No.187 of 2020) filed by the appellants herein- State of U.P. and Others confirming the judgment and order passed by the learned Single Judge quashing and setting aside the eligibility lists dated 18.03.2019 and 10.05.2019 of the Superintending Engineers (Civil) for promotion to the post of Chief Engineer (Civil) Level-II from the department and further issuing a writ of mandamus, commanding the appellants – competent authority to prepare the eligibility list of the 1 Superintending Engineer (Civil) including the names of the respondents – original writ petitioners for promotion to the post of Chief Engineer (Civil) Level – II by granting them relaxation in minimum length of service in accordance with the U.P. Government Servants Relaxation in Qualifying Service for Promotion Rules, 2006, the State of U.P. and others have preferred the present appeal. Shri Sakha Ram Singh, learned Senior Advocate appearing on behalf of the State has vehemently submitted that admittedly the original writ petitioners did not fulfil the eligibility criteria as contained in Rule 5(iii) of the Rules, 1990. It is submitted that therefore the names of the original writ petitioners were rightly excluded from the eligibility list of Superintending Engineer (Civil) for the promotion to the post of Chief 5 Engineer (Civil). It is submitted that grant of relaxation under the Relaxation Rules, 2006 is discretionary and no writ of mandamus can be issued directing the competent authority to grant the relaxation. The word used in Rule 4 of Relaxation Rules, 2006 is ‘MAY’ and only in a case where the required number of eligible persons are not available in the field of eligibility. It is submitted that no employee can claim the relaxation as a matter of right. It is therefore submitted that as admittedly the original writ petitioners did not fulfil the eligibility criteria of having completed 25 years of service, their names were not required to be included in the eligibility list for promotion to the post of Chief Engineer. Shri Rana Mukherjee, learned Senior Advocate appearing on behalf of the respondents – original writ petitioners, submitted that in the facts and circumstances of the case and on giving cogent reasons the learned Single Judge rightly issued the writ of mandamus commanding the appellants – competent authority to grant relaxation to the original writ petitioners. It is submitted that the learned Single Judge rightly considered that the eligibility list has to be prepared applying the ratio of 1:3 so as to have more meritorious candidates. It is therefore submitted that as solely on technical ground of not completing 25 years of service, the names of the original writ petitioners were excluded and there are specific Relaxation Rules, 2006, which provide for relaxation in qualifying service, the High Court has not committed any error in issuing the writ of mandamus to grant the relaxation as per Rule 4 of the Relaxation Rules, 2006. After the perusal of the facts and arguments by the learned counsels, the Hon’ble Court held, “The word used in the Rule 4 of Relaxation Rules, 2006 is “MAY”. Therefore, the relaxation may be at the discretion of the competent authority. The relaxation cannot be prayed as a matter of right. If a conscious decision is taken not to grant the relaxation, merely because Rule permits relaxation, no writ of mandamus can be issued directing the competent authority to grant relaxation in qualifying service. Therefore, the High Court has committed a grave error in issuing the writ of mandamus commanding the competent authority to grant relaxation in the qualifying service. Consequently, the High Court has also erred in quashing and setting aside the eligibility lists dated 18.03.2019 and 10.05.2019, which as such were prepared absolutely in consonance with the Rules, 1990 and Rules, 2006. The impugned judgments and orders passed by the learned Single Judge as well as the Division Bench of the High Court are not sustainable in law. 8. In view of the above and for the reasons stated above, the present appeal succeeds.”

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6868 OF 2021 State of U.P. & Ors …Appellant(s Vikash Kumar Singh & Ors. JUDGMENT M.R. SHAH J Feeling aggrieved and dissatisfied with the impugned judgment and order dated 24.07.2020 passed by the Division Bench of the High Court of Judicature at Allahabadby which the Division Bench of the High Court has dismissed the Special Appealfiled by the appellants herein State of U.P and Others confirming the judgment and order passed by the learned Single Judge quashing and setting aside the eligibility lists dated 18.03.2019 and 10.05.2019 of the Superintending Engineersfor promotion to the post of Chief Engineer Level II from the department and further issuing a writ of mandamus commanding the appellants competent authority to prepare the eligibility list of the Superintending Engineerincluding the names of the respondents original writ petitioners for promotion to the post of Chief Engineer Civil) Level II by granting them relaxation in minimum length of service in accordance with the U.P. Government Servants Relaxation in Qualifying Service for Promotion Rules 2006 the State of U.P. and others have preferred the present appeal. The facts leading to the present appeal in nutshell are as under: 2.1 The respondents original writ petitionersare discharging their duties as Superintending Engineers in different places. They claim promotion to the post of Chief EngineerLevel II. The recruitment to the post of Chief Engineer Level II is governed by the U.P. Service of Engineers (Group A) Service Rules 1990 hereinafter referred to as “Rules 1990”). As per Rule 5(iii) of the said Rules promotion to the post of Chief Engineer shall be from amongst the substantively appointed Superintending Engineers in the Civil or Mechanical Branch as the case may be who have completed twenty five years of service on the first day of the year of recruitment. As per the Office Circular dated 22.03.1984 issued by the State Government laying out the guidelines for selection promotion to the posts within the purview of the Public Service Commission the criteria for promotion shall be merit. The State Government have also framed the U.P. Government Servant Relaxation in Qualifying Service for Promotion Rules 2006which prescribe that in case the required number of eligible persons are not available in the field of eligibility the prescribed minimum length of service may be relaxed upto 50% by the Government in the Administrative Department in consultation with the Personnel Department excluding the period of probation 2.2 The appointing authority determined 26 vacancies of Chief Engineer Level II for the Recruitment Year 2018 2019. The eligibility list was to be prepared in terms of Rule 4 of Uttar Pradesh Promotion by SelectionEligibility List Rules 1986 containing the names of the senior most candidates as far as possible three times the number of vacancies. Since there were 26 vacancies of Chief Engineer determined as per Rules 1986 totaling 78 Superintending Engineerswere eligible to be considered for promotion to the post of Chief Engineer 2.3 On 23.07.2018 an eligibility list of Recruitment Year 2018 201 Superintending Engineerwas prepared. The names of the original writ petitioners found place at Sl. Nos. 60 63 64 67 72 and 74 However as they had not completed 25 years of service which was the requirement as per the Rules 1990 their cases were not considered for promotion. Again on 07.03.2019 a revised eligibility list for the Recruitment Year 2018 201 Superintending Engineerswas prepared and the names of the original writ petitioners were excluded on the ground that they had not completed 25 years of service. Again on 18.03.2019 another revised eligibility list for the Recruitment Year 2018 201 Superintending Engineerwas prepared in which also the names of the original writ petitioners were excluded. Lastly on 10.05.2019 one other revised list of 41 Superintending Engineersof 2019 assailing before the High Court the eligibility lists dated 18.03.2019 and 10.05.2019 of the Superintending EngineerLevelII in the Department of Irrigation and Water Resources mainly on the ground that they were entitled to the relaxation in minimum qualifying service as per Relaxation Rules 2006. By judgment and order dated 11.12.2019 the learned Single Judge issued the writ of mandamus commanding the competent authority to prepare the eligibility list of Superintending Engineerincluding the names of the original writ petitioners for promotion to the post of Chief Engineergranting them relaxation in minimum length of service in accordance with Relaxation Rules 2006 as amended in the year 2013. Consequently the learned Single Judge quashed and set aside the eligibility lists dated 18.03.2019 and 10.05.2019 of Superintending Engineer for promotion to the post of 2.4 Feeling aggrieved and dissatisfied with the judgment and order passed by the learned Single Judge the State of U.P. filed the Special Appeal before the Division Bench and by the impugned judgment and order the Division Bench of the High Court has dismissed the special appeal and has confirmed the judgment and order passed by the learned Single Judge. Shri Sakha Ram Singh learned Senior Advocate has appeared on behalf of the appellants and Shri Rana Mukherjee learned Senior Advocate has appeared on behalf of the respondents original writ petitioners. Shri Sakha Ram Singh learned Senior Advocate appearing on behalf of the State has vehemently submitted that admittedly the original writ petitioners did not fulfil the eligibility criteria as contained in Rule 5(iii) of the Rules 1990. It is submitted that therefore the names of the original writ petitioners were rightly excluded from the eligibility list of Superintending Engineerfor the promotion to the post of Chief Engineerof the Rules 1990 It is submitted that grant of relaxation under the Relaxation Rules 2006 is discretionary and no writ of mandamus can be issued directing the competent authority to grant the relaxation. It is submitted that word used in Rule 4 of Relaxation Rules 2006 is ‘MAY’ and only in a case where the required number of eligible persons are not available in the field of eligibility. It is submitted that no employee can claim the relaxation as a matter of right. It is therefore submitted that as admittedly the original writ petitioners did not fulfil the eligibility criteria of having completed 25 years of service their names were not required to be included in the eligibility list for promotion to the post of Chief Engineer. It is submitted that the High Court has erred in quashing and setting aside the eligibility lists dated 18.03.2019 and 10.05.2019 which as such were in absolute consonance with the statutory provisions of Rule 5(iii) and 8(iii) of the Rules 1990. appeal. 4.3 Making above submissions it is prayed to allow the present Present appeal is opposed by Shri Rana Mukherjee learned Senior Advocate appearing on behalf of the respondents original writ petitioners. It is submitted that in the facts and circumstances of the case and on giving cogent reasons the learned Single Judge rightly issued the writ of mandamus commanding the appellants competent authority to grant relaxation to the original writ petitioners. It is submitted that the learned Single Judge rightly considered that the eligibility list has to be prepared applying the ratio of 1:3 so as to have more meritorious candidates. It is therefore submitted that as solely on technical ground of not completing 25 years of service the names of the original writ petitioners were excluded and there are specific Relaxation Rules 2006 which provide for relaxation in qualifying service the High Court has not committed any error in issuing the writ of mandamus to grant the relaxation as per Rule 4 of the Relaxation Rules 2006. 6. We have heard the learned Senior Advocates appearing for the respective parties at length. At the outset it is required to be noted that the learned Single Judge issued the writ of mandamus commanding the competent authority to grant the relaxation as per Rule 4 of the Relaxation Rules 2006 in qualifying service and consequently has quashed and set aside the eligibility lists dated 18.03.2019 and 10.05.2019. At the outset it is required to be noted that as such as per Rule 5(iii) of the Rules 1990 one of the conditions to be eligible is that the Superintending Engineer must have completed 25 years of serviceand Rule 8(iii) of the Rules 1990. The names of the original writ petitioners were excluded from the eligibility list of Superintending Engineer for promotion to the post of Chief Engineer on the ground that they did not fulfil the eligibility criteria as per Rule 5(iii) of the Rules 1990. Therefore as such the High Court ought not to have set aside the said eligibility lists which as such were prepared absolutely in accordance with the Rules 1990. 7.1 The learned Single Judge thereafter while quashing and setting aside the eligibility lists dated 18.03.2019 and 10.05.2019 has issued the writ of mandamus commanding or directing the competent authority to grant relaxation in qualifying service which as such was permissible under Rule 4 of the Relaxation Rules 2006. The word used in the Rule 4 of Relaxation Rules 2006 is “MAY”. Therefore the relaxation may be at the discretion of the competent authority. The relaxation cannot be prayed as a matter of right. If a conscious decision is taken not to grant the relaxation merely because Rule permits relaxation no writ of mandamus can be issued directing the competent authority to grant relaxation in qualifying service. Therefore the High Court has committed a grave error in issuing the writ of mandamus commanding the competent authority to grant relaxation in the qualifying service Consequently the High Court has also erred in quashing and setting aside the eligibility lists dated 18.03.2019 and 10.05.2019 which as such were prepared absolutely in consonance with the Rules 1990 and Rules 2006. The impugned judgments and orders passed by the learned Single Judge as well as the Division Bench of the High Court are not sustainable in law. In view of the above and for the reasons stated above the present appeal succeeds. The impugned judgment and order passed by the Division Bench passed in Special Appealand the judgment and order passed by the learned Single Judge dated 11.12.2019 passed in Writ Petition No.14962(S S) of 2019 are hereby quashed and set aside. Consequently the writ petition filed by the original writ petitioners being Writ Petition No.14962(S S) of 2019 stands dismissed. Present appeal is allowed accordingly however there shall be no order as to costs. Pending applications if any also stand [M.R. SHAH NEW DELHI NOVEMBER 22 2021 ….J [B.V. NAGARATHNA

The Superintendent of Police shall provide immediate protection to the married couple living together in case of any disturbance in their peaceful living: Allahabad High Court.

The petitioners are at liberty to live together and any interference in their peaceful living shall not be tolerated by any person. In case of any disturbance, the petitioners are at liberty to approach the senior Superintendent of Police or the Superintendent of Police with a copy of this order for protection and the approached officer shall give them immediate protection. Such an observation was made by the Hon’ble Allahabad High court before Hon’ble Justice Mohammad Aslam in the matter of Smt. Saima & ors vs  State Of U.P & Anr [WRIT – C No. – 28718 of 2021].  The crux of the matter was the petitioners were major and have solemnized their marriage according to the Muslim rites and customs on 24.01.2021 and for the same they were been threatened and harassed. The Hon’ble High Court while allowing and deciding the writ petition held that when the petitioners are major then they are free to marry according to their own free will and there shall be no questions to that. Further, the Hon’ble High Court referred to the case of  Lata Singh vs. State of UP 2006 Cr.L.J. 3312 in which the Hon’ble Supreme Court held that “This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such intercaste or inter-religious marriage the maximum they can do is that they can cut off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or inter-religious marriage.” The Hon’ble High Court further directed the senior Superintendent of Police and the Superintendent of Police to provide immediate protection in case any threats are received by the petitioners and directed the petitioners to register their marriage according to ‘Uttar Pradesh Marriages Registration Rules, 2017’ within two months from the date of the judgment. Click here to read the judgment. Judgment Reviewed by: Rohan Kumar Thakur The crux of the matter was the petitioners were major and have solemnized their marriage according to the Muslim rites and customs on 24.01.2021 and for the same they were been threatened and harassed. The Hon’ble High Court while allowing and deciding the writ petition held that when the petitioners are major then they are free to marry according to their own free will and there shall be no questions to that. Further, the Hon’ble High Court referred to the case of  Lata Singh vs. State of UP 2006 Cr.L.J. 3312 in which the Hon’ble Supreme Court held that “This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such intercaste or inter-religious marriage the maximum they can do is that they can cut off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or inter-religious marriage.” The Hon’ble High Court further directed the senior Superintendent of Police and the Superintendent of Police to provide immediate protection in case any threats are received by the petitioners and directed the petitioners to register their marriage according to ‘Uttar Pradesh Marriages Registration Rules, 2017’ within two months from the date of the judgment. Click here to read the judgment. Judgment Reviewed by: Rohan Kumar Thakur The Hon’ble High Court while allowing and deciding the writ petition held that when the petitioners are major then they are free to marry according to their own free will and there shall be no questions to that. Further, the Hon’ble High Court referred to the case of  Lata Singh vs. State of UP 2006 Cr.L.J. 3312 in which the Hon’ble Supreme Court held that “This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such intercaste or inter-religious marriage the maximum they can do is that they can cut off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or inter-religious marriage.” The Hon’ble High Court further directed the senior Superintendent of Police and the Superintendent of Police to provide immediate protection in case any threats are received by the petitioners and directed the petitioners to register their marriage according to ‘Uttar Pradesh Marriages Registration Rules, 2017’ within two months from the date of the judgment. Click here to read the judgment. Judgment Reviewed by: Rohan Kumar Thakur The Hon’ble High Court further directed the senior Superintendent of Police and the Superintendent of Police to provide immediate protection in case any threats are received by the petitioners and directed the petitioners to register their marriage according to ‘Uttar Pradesh Marriages Registration Rules, 2017’ within two months from the date of the judgment.

Court No. 70 Case : WRIT C No. 287121 Petitioner : Smt. Saima And Another Respondent : State Of U.P And 3 Others Counsel for Petitioner : Firoz Haider Counsel for Respondent : C.S.C Hon ble Mohd. Aslam J 1. Heard learned counsel for the petitioners and learned counsel for the for the State respondents. 2. By means of present writ petition the petitioners have prayed for direction in the nature of mandamus directing the respondents not to interfere in their peaceful matrimonial life. 3. Learned counsel for the petitioners submits that the petitioners are major and have solemnized their marriage with each other according to Muslim Rites and Custom on 24.1.2021. No first information report has been registered against them. 4. As per notification of this Court on account of prevailing Covid 19 pandemic the clients are not permitted to enter into the Court premises unless otherwise their presence is directed by the Court as such the petitioners are not present in the 5. The petitioners claim to be adults and married to each other of their own freewill and for that they are being threatened and to has issued directions 6. In Lata Singh vs. State of UP 2006 Cr.L.J. 3312 while dealing with a case of harassment by the parents of the boy and girl who had entered into inter caste marriage Hon ble Supreme Court Administration Police authorities throughout the country in the This is a free and democratic country and once a person becomes a major he or she can marry whosoever he she likes If the parents of the boy or girl do not approve of such inter caste or inter religious marriage the maximum they can do is that they can cut off social relations with the son or the daughter but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter caste or inter religious marriage. We therefore direct that the administration police authorities throughout the country will see to it that if any boy or girl who is a major undergoes inter caste or inter religious marriage with a woman or man who is a major the couple are not harassed by any one nor subjected to threats or acts of violence and any one who gives such threats or harasses or commits acts of violence either himself or at his instigation is taken to task by instituting criminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law." 7. In Bhagwan Dass v. State(2011) 6 SCC 396 Hon ble Supreme Court held in paragraph 28 and 29 as 28. ..... Often young couples who fall in love have to seek shelter in the police lines or protection homes to avoid the wrath of kangaroo courts. We have held in Lata Singh case that there is nothing "honourable" in "honour" killings and they are nothing but barbaric and brutal murders by bigoted persons with feudal minds. In our opinion honour killings for whatever reason come within the category of the rarest of rare cases deserving death punishment. It is time to stamp out these barbaric feudal practices which are a slur on our nation. This is necessary as a deterrent for such outrageous uncivilised behavior. All persons who are planning to perpetrate "honour killings should know that the gallows await them 29. Let a copy of this judgment be sent to the Registrars General Registrars of all the High Courts who shall circulate the same to all the Judges of the Courts. The Registrars General Registrars of the High Courts will also circulate copies of the same to all the Sessions Judges Additional Sessions Judges in the States Union Territories. Copies of the judgment shall also be sent to all the Chief Secretaries Home Secretaries Directors General of Police of all States Union Territories in the country. The Home Secretaries and Directors General of Police will circulate the same to all SSPs SPs in the States Union Territories for information." 8. In view of the above the writ petition is finally disposed of with the direction that the petitioners are at liberty to live together and no person shall be permitted to interfere in their peaceful living. In case any disturbance is caused in the peaceful living of the petitioners the petitioners shall approach the concerned Senior Superintendent of Police or Superintendent of Police with a copy of this order who shall provide immediate protection to the petitioners. 9. However this order in no way expresses opinion about the validity of their marriage and genuineness of their marriage certificate. This order shall not protect the petitioners against any action or proceedings pursuant to any F.I.R. or complaint case against him her them. 10. The petitioners shall get their marriage registered under the Uttar Pradesh Marriages Registration Rules 2017" within two months from today failing which this order will automatically come to an end. 11. The Registrar of Marriages concerned is directed to process and issue the registration certificate to the petitioners as per law at the earliest. 12. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad self attested by the petitioners alongwith a self attested identity proof of the said personmentioning the mobile number to which the said Aadhar Card is linked. 13. The concerned Court Authority Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing. Order Date : 1.11.2021

Balance Sheet is sufficient acknowledgment under Section 18 of the Limitation Act, 1963: National Company Law Appellate Tribunal, Principal Bench, New Delhi

Whether in order to condone delay, Balance Sheet is sufficient acknowledgment under Section 18 of the Limitation Act, 1963, was a question considered by the NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH, NEW DELHI, before a bench consisting of Hon’ble Justice Ashok Bhushan, Chairperson, and Dr. Alok Srivastava, Member (Technical), in the matter of G.S. Buildtech Pvt. Ltd. vs. Ardee Infrastructure Venture Pvt. Ltd. [Company Appeal (AT) (Insolvency) No. 388 of 2021], on 23.12.21. The present appeal was filed under Section 61 of the Insolvency and Bankruptcy Code, 2016, challenging the judgment and order dated 28.09.2020 passed by the Adjudicating Authority (National Company Law Tribunal), New Delhi Bench, by which application filed by the appellant under Section 7 of the Insolvency and Bankruptcy Code, 2016, had been rejected. The appellant disbursed an amount of Rs.1,30,00,000/- to the Corporate Debtor. Certain repayments were made by the Corporate Debtor on 11.06.2015, 29.06.2015 and lastly on 15.03.2016. The appellant sent communication to the Corporate Debtor seeking confirmation of accounts between the parties, as well as subsequent legal notice issued for repayment, which were not answered by the Corporate Debtor. Accordingly, an application under Section 7 of the Insolvency and Bankruptcy Code, 2016, was filed by the appellant on 20.03.2020 before the Adjudicating Authority claiming that the Corporate Debtor owed an amount of debt amounting to Rs. 39 Lacs. The application was rejected by the Adjudicating Authority on two grounds; firstly that the application was barred by time, and secondly, that the appellant does not come within the definition of “financial creditor”. The present appeal has been filed challenging the impugned judgement. Learned Counsels for the Appellant, argued that the balance sheet for the Financial Year ending 31.03.2017, which was signed by the Corporate Debtor on 01.09.2017, contains an acknowledgment with regard to sum of Rs. 39 Lakh by the Corporate Debtor. Due to not taking into account the fact that the appellant was entitled for fresh period of limitation due to the above acknowledgment, the impugned judgement was erroneous. Hence, the application filed by the appellant was contended not barred by time. It was further submitted that the finding of the Adjudicating Authority that appellant is not a “financial creditor” was also incorrect. It was contended that the mere fact that there is no proof for payment of interest does not take away the debt owed by the Corporate Debtor as a financial debt. The National Company Law Appellate Tribunal, Principal Bench, New Delhi, in light of the arguments and having perused the facts and evidence placed before it, placing reliance on precedents, held that it is now well settled that acknowledgment in the Balance Sheet is sufficient acknowledgment under Section 18 of the Limitation Act, 1963, and thus the impugned judgement was erroneous in that respect. Additionally, the tribunal saw it fit to examine the definition of “financial debt” as provided in Section 5(8). It was noted that the definition clearly contemplates that debt along with interest is not mandatory to be there it to be a financial debt. Interest will be a part of the debt only if there is interest in the transaction. Words ‘if any’ after the word interest clearly indicates that it is not mandatory that debt should be along with interest in all cases. Therefore, the tribunal found reason to question the previous judgement, holding that the appellant is not a “financial creditor”. Thus, by taking into consideration the Balance Sheet, the Adjudicating Authority was directed to re-consider the question of the applicant being a “financial creditor”. Thus, the tribunal set aside the order of the Adjudicating Authority and remitted the matter to the Adjudicating Authority for fresh consideration of the application under Section 7 after issuing fresh notice to the Corporate Debtor and after giving opportunity to the Corporate Debtor also.

NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH NEW DELHI Company Appeal(Insolvency) No. 3821 Arising out of Order dated 28.09.2020 passed by the Adjudicating Authority National Company Law Tribunal) New Delhi Bench V in881(ND) 2020] IN THE MATTER OF: G.S. Buildtech Pvt. Ltd. A 4 Front LGF Malviya Nagar New Delhi 110017 E mail Id: accounts@gsbuildtech.com Ardee Infrastructure Venture Pvt. Ltd. 17th Floor Dr. Gopal Das Bhawan 28 Barakhamba Road New Delhi 110001. For Appellant: Mr. Anirudh Wadhwa Mr. Bhargav Thali For Respondent: None. JUDGMENT 23rd December 2021) Ashok Bhushan J. This Appeal has been filed under Section 61 of the Insolvency and Bankruptcy Code 2016challenging the judgment and order dated 28.09.2020 passed by the Adjudicating Authority New Delhi Bench V by which Application filed by the Appellant under Section 7 of the ‘I&B Code’ has been rejected. The Appellant 2 disbursed an amount of Rs.1 30 00 000 to the Corporate Debtor. Certain repayments were made by the Corporate Debtor on 11.06.2015 29.06.2015 and lastly on 15.03.2016. Appellant sent communication dated 09.08.2019 and 20.09.2019 to the Corporate Debtor seeking confirmation of accounts between the parties which was not answered by the Corporate Debtor. Communication dated 16.01.2020 and legal notice dated 30.01.2020 were issued for repayment which also remained unanswered. An Application under Section 7 of the ‘I&B Code’ was filed by the Appellant on 20.03.2020 before the Adjudicating Authority claiming that the Corporate Debtor owed an amount of debt amounting to Rs.39 Lacs. The Application was rejected by the Adjudicating Authority on two grounds firstly that last repayment having been made on 15.03.2016 and the Application under Section 7 having been filed on 20.03.2020 i.e. beyond three years Application is barred by time. Secondly the Appellant Applicant does not come within the definition of ‘Financial Creditor’ since there is no document to show any interest has ever been paid to the Applicant by the Corporate Debtor in lieu of the amount. Challenging the impugned judgment this Appeal has been filed. Notices were issued in the Appeal on 04.06.2021 although the Respondents were served but neither any one appeared for the Respondents nor filed any reply. At the time of hearing also no one appeared for the Respondents. Learned Counsel for the Appellant challenging the impugned judgment contends that the balance sheet for the Financial Year ending 31.03.2017 which was signed by the Corporate Debtor on 01.09.2017 contains an acknowledgment with regard to sum of Rs. 39 Lakh by the Corporate Debtor. Company Appeal(Ins.) No. 3821 3 Hence the Application filed by the Appellant was not barred by time. Appellant was entitled for fresh period of limitation due to the above acknowledgment. Learned Adjudicating Authority committed error in not considering the said objection. It is further submitted that the finding of the Adjudicating Authority that Appellant is not a Financial Creditor is also incorrect. The mere fact that there is no proof for payment of interest does not take away the debt owed by the Corporate Debtor as a financial debt. 3. We have considered the submissions of the Learned Counsel for the Appellant and perused the record. The Adjudicating Authority has returned a finding that last payment was received by the Appellant Applicant on 15.03.2016 and the Application was filed on 20.03.2020 in paragraph 10 of the judgment. The Adjudicating Authority has also noted the Balance Sheet for the Financial Year 2016 17 ending 31.03.2017. However the Adjudicating Authority rejected the submission of acknowledgment observing that Appellant has not placed any law before it that amount mentioned in the Balance Sheet comes under the definition of acknowledgment of debt under Section 18 of the Limitation Act 1963. The Balance Sheet for the Financial Year 2016 17 having been signed on 01.09.2017 and the above Application having been filed on 20.03.2020 it is well within three years’ period from acknowledgment of debt as claimed by the Appellant. It is now well settled that acknowledgment in the Balance Sheet is sufficient acknowledgment under Section 18 of the Limitation Act 1963. Company Appeal(Ins.) No. 3821 4 We may refer to the judgment of the Hon’ble Supreme Court in “Asset Reconstruction Company Limited vs. Bishal Jaiswal and Anr. 2021) 6 SCC 366”. After referring to the earlier judgment of the Hon’ble Supreme Court on the question and noticing the provisions of the Companies Act regarding preparation of the Balance Sheets following was laid down in paragraphs 35 and 40: “35. A perusal of the aforesaid Sections would show that there is no doubt that the filing of a balance sheet in accordance with the provisions of the Companies Act is mandatory any transgression of the same being punishable by law. However what is of importance is that notes that are annexed to or forming part of such financial statements are expressly recognised by Section 134(7). Equally the auditor’s report may also enter caveats with regard to acknowledgements made in the books of accounts including the balance sheet. A perusal of the aforesaid would show that the statement of law contained in Bengal Silk Millsthat there is a compulsion in law to prepare a balance sheet but no compulsion to make any particular admission is correct in law as it would depend on the facts of each case as to whether an entry made in a balance sheet qua any particular creditor is unequivocal or has been entered into with caveats which then has to be examined on a case by case basis to establish whether an acknowledgement of liability has in fact been made thereby extending limitation under Section 18 of the Limitation Act. xxx xxx Company Appeal(Ins.) No. 3821 5 In CIT III v. Shri Vardhman Overseas Ltd. 2011 SCC OnLine Del 5599 :343 ITR 408 the Delhi High Court held: “17. In the case before us as rightly pointed out by the Tribunal the assessee has not transferred the said amount from the creditors account to its profit and loss account. The liability was shown in the balance sheet as on 31st March 2002. The assessee being a limited company this amounted acknowledging the debts in favour of the creditors. Section 18 of the Limitation Act 1963 provides for effect of acknowledgement in writing. It says where before the expiration of the prescribed period for a suit of any property right an acknowledgement of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed a fresh period of limitation shall commence from the time when the acknowledgement was so signed. In an early case in England in Jones v. Bellgrove Properties 2KB 700 it was held that a statement in a balance sheet of a company presented to a creditor share holder of the company and duly signed by the directors constitutes an acknowledgement of the debt. In Mahabir Cold Storage v. CIT188 ITR 91 : 1991 SuppSCC 402 the Supreme Court held: The entries in the books of accounts of appellant would acknowledgement of the liability to Messrs. Prayagchand Hanumanmal within the meaning of Section 18 of the Limitation Act 1963 and extend Company Appeal(Ins.) No. 3821 6 the period of limitation for the discharge of the liability as debt.” In several judgments of this Court this legal position has been accepted. In Daya Chand Uttam Prakash Jain v. Santosh Devi Sharma 67DLT 13 S.N. Kapoor J. applied the principle in a case where the primary question was whether a suit under Order 37 could be filed on the basis of an acknowledgement. In Larsen & Toubro Ltd. v. Commercial Electric Works 67 DLT 387 a Single Judge of this Court observed that it is well settled that a balance sheet of a company where the defendants had shown a particular amount as due to the plaintiff would constitute an acknowledgement within the meaning of Section 18 of the Limitation Act. In Rishi Pal Gupta v. S.J. Knitting & Finishing Mills Pvt. Ltd. 73 DLT 593 the same view was taken. The last two decisions were cited by Geeta Mittal J. in S.C. Gupta v. Allied Beverages Company Pvt. Ltd.and it was held that the acknowledgement made by a company in its balance sheet has the effect of extending the period of limitation for the purposes of Section 18 of the Limitation Act. In Ambika Mills Ltd. Ahmedabad v. CIT Gujarat54 ITR 167 it was further held that a debt shown in a balance sheet of a company amounts to an acknowledgement for the purpose of Section 19 of the Limitation Act and in order to be so the balance sheet in which such acknowledgement is made need not be addressed to the creditors. In light of these authorities it must be held that in the present case the disclosure by the assessee company in its balance sheet as on 31st March 2002 of the accounts of the Company Appeal(Ins.) No. 3821 7 sundry creditors’ amounts to an acknowledgement of the debts in their favour for the purposes of Section 18 of the Limitation Act. The assessee’s liability to the creditors thus subsisted and did not cease nor was it remitted by the creditors. The liability was enforceable in a court of law.” In another recent judgment of the Hon’ble Supreme Court in “Dena Bank vs. C. Shivakumar Reddy and Ors. Civil Appeal No. 16520” after referring to the judgment of “Asset Reconstruction CompanyLimited”the Hon’ble Supreme Court again reiterated that Section 18 of the Limitation Act 1963 is fully applicable to proceedings under ‘I&B Code’ and entries in books of accounts and or balance sheets of a Corporate Debtor would amount to an acknowledgment under Section 18 of the Limitation Act. In paragraph 118 following has been laid down: “118. It is well settled that entries in books of accounts and or balance sheets of a Corporate Debtor would amount to an acknowledgment under Section 18 of the Limitation Act. In Asset Reconstruction Company Limited v. Bishal Jaiswall and Anr.authored by Nariman J. this Court quoted with approval the judgments inter alia of Bengal Silk Mills Co. v. Ismail Golam Hossain Ariff 18 and in Re Pandem Tea Co.19 Ltd. the judgment of the Delhi High Court in South Asia Industries Ltd. v. General Krishna Shamsher Jung Bahadur Rana20 and the judgment of Karnataka High Court in Hegde Golay Ltd. v. State Bank of India 21 and held that an acknowledgement of liability that is made in a Company Appeal(Ins.) No. 3821 8 balance sheet can amount to an acknowledgement of debt.” The Adjudicating Authority thus committed error in not considering the balance sheet which was relied by the Appellant for the Financial Year 2016 17 ending 31.03.2017. The Adjudicating Authority after noticing the balance sheet did not advert to the balance sheet to find out as to whether there is an acknowledgment within the meaning of Section 18 of the Limitation Act or not. 8. We may notice that in “Asset Reconstruction Company Limited”in paragraph 35 as extracted above the Hon’ble Supreme Court has clearly laid down that whether acknowledgment in balance sheet is acknowledgment within the meaning of Section 18 depends on the facts of each case and as to whether an entry made in a balance sheet qua any particular creditor is unequivocal or has been entered into with caveats which then has to be examined on a case by case basis. The Adjudicating Authority having not examined the balance sheet for Financial Year 2016 17 ending on 31.03.2017. In the interest of justice the Adjudicating Authority has to examine the balance sheet to find out as to whether it contain acknowledgment within the meaning of Section 18 of the Limitation Act or Now we come to the second ground given by the Adjudicating Authority for rejecting the Application i.e. that there is no document to show that any interest has ever been paid to the Petitioner by the Corporate Debtor in lieu of the amount hence Appellant is not covered in the definition of ‘Financial Company Appeal(Ins.) No. 3821 9 Creditor’. Without entering into the facts of the present case as to whether there was any evidence to show that any interest has ever been paid or not suffice it to notice the definition of ‘financial debt’ as defined in Section 5(8). Section 5(8) defines ‘financial debt’ in following words: 8) “financial debt” means a debt alongwith interest if any which is disbursed against the consideration for the time value of money and includes a) money borrowed against the payment of interest equivalent b) any amount raised by acceptance under any acceptance credit facility or its de materialised c) any amount raised pursuant to any note purchase facility or the issue of bonds notes debentures loan stock or any similar instrument d) the amount of any liability in respect of any lease or hire purchase contract which is deemed as a finance or capital lease under the Indian Accounting Standards or such other accounting standards as may be prescribed e) receivables sold or discounted other than any receivables sold on non recourse basis f) any amount raised under any other transaction including any forward sale or purchase agreement having the commercial effect of a borrowing clause Explanation. For the purposes of this sub any amount raised from an allottee under a real estate project shall be deemed to be an Company Appeal(Ins.) No. 3821 10 amount having the commercial effect of a borrowing and the expressions “allottee” and “real estate the meanings respectively assigned to them in clausesand of section 2 of the Real Estate Regulation and Development) Act 2016 116) ] g) any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price and for calculating the value of any derivative transaction only the market value of such transaction shall be taken into account h) any counter indemnity obligation in respect of a guarantee indemnity bond documentary letter of credit or any other instrument issued by a bank or financial institution i) the amount of any liability in respect of any of the guarantee or indemnity for any of the items referred to in sub clausetoof this clause” 10. The definition begins with the expression ‘financial debt’ means a debt alongwith interest if any. Thus a financial debt may be with interest if any. The definition thus clearly contemplates that debt along with interest is not mandatory to be there it to be a financial debt. Interest will be a part of the debt only if there is interest in the transaction. Words ‘if any’ after the word interest clearly indicates that it is not mandatory that debt should be alongwith interest in all cases. We thus do not subscribe to the reason given by the Adjudicating Authority in paragraph 10 for holding that Applicant Company Appeal(Ins.) No. 3821 11 Appellant is not a Financial Creditor. We may further observe that consideration of the balance sheet for Financial Year 2016 17 may also be relevant for determining as to whether there was a financial debt or not. Thus by taking into consideration the Balance Sheet the Adjudicating Authority can re consider the question of Applicant being Financial Creditor or not. In view of the foregoing discussion we set aside the order of the Adjudicating Authority and remit the matter to the Adjudicating Authority for fresh consideration of the Application under Section 7 after issuing fresh notice to the Corporate Debtor and after giving opportunity to the Corporate Debtor also. The Appeal is allowed accordingly. No order as to costs. Justice Ashok Bhushan] MemberNew Delhi Company Appeal(Ins.) No. 3821

Moreover, Article 31 of the Constitution provides that any State acquisition of property must only be upon enactment of a valid law, for a public purpose, and upon payment of compensations: High Court of Allahabad

Land dispute is one of the oldest forms of disputes ever recorded in the history of civilized society. The land is nothing but a form of property that is immovable and limited proceedings for the said offence and the same issue was held in the judgement passed by a division bench judge Hon’ble Pritinker Diwaker, J. Hon’ble Dr Yogendra Kumar Srivastava, J. In the matter, Bhikari And Others V/s  State of U.P. and Another [WRIT – C No. – 2121 of 2022] dealt with an issue mentioned above.   The petitioners claim to be owners of khata no. 45 khasra no. 328 area 0.158 hectares situate in Village Sorkha Zahidabad, Pargana and Tehsil Dadri, District Gautam Budh Nagar which were the subject matter of acquisition proceedings in terms of the notification dated 12.04.2005 issued under Section 4 (1)/17(4), and the notification dated 27.07.2006 issued under Section 6/17 (1) of the Land Acquisition Act, 1894. The petitioners admit to having accepted the compensation amount. The contention of the petitioners that irrespective of the fact whether the notifications issued in respect of land acquisition proceedings were under challenge along with the bunch of cases decided by the Full Bench they should be granted the same benefit regarding developed Abadi plot as was granted by the Full Bench is liable to be rejected, for the reason that in the case of Gajraj Singh and others the Full Bench granted relief to the petitioners and to such persons whose earlier writ petitions challenging the notifications had been dismissed or who had not come to the Court challenging the notifications which were subject matter of challenge in the writ petitions, in view of the peculiar facts of the case having regard to the extensive development which had taken place subsequent to the acquisition proceedings, and also that the Supreme Court in the case of Savitri Devi vs. State of U.P. and others2 had made it clear that the directions issued by the Full Bench shall not be treated as a precedent in future cases. The court perused the facts and arguments presented in the case  The petitioners have admitted to having accepted the compensation in respect of their land which was the subject matter of acquisition. The additional benefit by way of allotment of developed Abadi plot which is sought by the petitioners not being founded on any legally enforceable right no mandamus can be claimed for grant of such benefit. Click here to read the judgment Judgment reviewed by Sakshi Mishra The contention of the petitioners that irrespective of the fact whether the notifications issued in respect of land acquisition proceedings were under challenge along with the bunch of cases decided by the Full Bench they should be granted the same benefit regarding developed Abadi plot as was granted by the Full Bench is liable to be rejected, for the reason that in the case of Gajraj Singh and others the Full Bench granted relief to the petitioners and to such persons whose earlier writ petitions challenging the notifications had been dismissed or who had not come to the Court challenging the notifications which were subject matter of challenge in the writ petitions, in view of the peculiar facts of the case having regard to the extensive development which had taken place subsequent to the acquisition proceedings, and also that the Supreme Court in the case of Savitri Devi vs. State of U.P. and others2 had made it clear that the directions issued by the Full Bench shall not be treated as a precedent in future cases. The court perused the facts and arguments presented in the case  The petitioners have admitted to having accepted the compensation in respect of their land which was the subject matter of acquisition. The additional benefit by way of allotment of developed Abadi plot which is sought by the petitioners not being founded on any legally enforceable right no mandamus can be claimed for grant of such benefit.

Court No. 29 Case : WRIT C No. 21222 Petitioner : Bhikari And 12 Others Respondent : State Of U.P. And 2 Others Counsel for Petitioner : Navin Kumar Counsel for Respondent : C.S.C. Kaushalendra Nath Singh Hon ble Pritinker Diwaker J Hon ble Dr. Yogendra Kumar Srivastava J Heard Sri Navin Kumar learned counsel for the petitioners Sri Kaushalendra Nath Singh learned counsel for the respondent no.3 and learned Standing Counsel for the State The present writ petition has been filed seeking a direction to the respondents to allot 5% developed land in terms of the Full Bench decision of this Court in Gajraj Singh and others Vs State of U.P. and others1. The petitioners claim to be owners of khata no. 45 khasra no. 328 area 0.158 hectares situate in Village Sorkha Zahidabad Pargana and Tehsil Dadri District Gautam Budh Nagar which were subject matter of acquisition proceedings in terms of notification dated 12.04.2005 issued under Section 4 17(4) and the notification dated 27.07.2006 issued under Section 6 17 1) of the Land Acquisition Act 1894. The petitioners admit to have accepted the compensation amount. The petitioners have specifically stated that they did not challenge the land acquisition proceedings. The writ petition is also silent as to whether the notifications under which the land of the petitioners was acquired were under challenge in the bunch of writ petitions which were decided along with the case of Gajraj Singh and others 2011ADJ 1The writ petitions of Group 40being Writ Petition No. 311211 Writ Petition No. 591309 Writ Petition No. 228010 Writ Petition No. 371111 Writ Petition No. 428109 Writ Petition No. 504109 Writ Petition No. 544209 Writ Petition No. 546509 Writ Petition No. 556509 Writ Petition No. 570309 Writ Petition No. 583109 Writ Petition No. 227910 Writ Petition No. 377810 Writ Petition No. 377810 Writ Petition No. 311211 Writ Petition No. 311211 Writ Petition No. 322311 Writ Petition No. 329811 Writ Petition No. 356411 Writ Petition No. 380511 Writ Petition No. 413311 Writ Petition No. 474211 and Writ Petition No. 474111 are allowed and the notifications dated 26.5.2009 and 22.6.2009 and all consequential actions are quashed. The petitioners shall be entitled for restoration of their land subject to deposit of compensation which they had received under agreement award before the authority Collector 2Writ petition No. 177210 Omveer and others Vs. State of U.P.relating to village Yusufpur Chak Sahberi is allowed. Notifications dated 10.4.2006 and 6.9.2007 and all consequential actions are quashed. The petitioners shall be entitled for restoration of their land subject to return of compensation received by them under agreement award to the Collector. 2(iii) Writ Petition No.474811of Group 42 relating to village Asdullapur is allowed. The notification dated 27.1.2010 and 4.2.2010 as well as all subsequent proceedings are quashed. The petitioners shall be entitled to restoration of their land. 3. All other writ petitions except as mentioned above atandare disposed of with following directions: The petitioners shall be entitled for payment of additional compensation to the extent of same ratioas paid for village Patwari in addition to the compensation received by them under 1997 Rules award which payment shall be ensured by the Authority at an early date. It may be open for Authority to take a decision as to what proportion of additional compensation be asked to be paid by allottees. Those petitioners who have not yet been paid compensation may be paid the compensation as well as additional compensation as ordered above. The payment of additional compensation shall be without any prejudice to rights of land owners under section 18 of the Act if any. b) All the petitioners shall be entitled for allotment of developed Abadi plot to the extent of 10% of their acquired land subject to maximum of 2500 square meters. We however leave it open to the Authority in cases where allotment of abadi plot to the extent of 6 or 8% have already been made either to make allotment of the balance of the area or may compensate the land owners by payment of the amount equivalent to balance area as per average rate of allotment made of developed residential plots 4.The Authority may also take a decision as to whether benefit of additional compensation and allotment of abadi plot to the extent of 10% be also given to a) those land holders whose earlier writ petition challenging the notifications have been dismissed upholding the notifications and b) those land holders who have not come to the Court relating to the notifications which are subject matter of challenge in writ petitions mentioned at direction No.3. 5. The Greater NOIDA and its allottees are directed not to carry on development and not to implement the Master Plan 2021 till the observations and directions of the National Capital Regional Planning Board are incorporated in Master Plan 2021 to the satisfaction of the National Capital Regional Planning Board. We make it clear that this direction shall not be applicable in those cases where the development is being carried on in accordance with the earlier Master Plan of the Greater NOIDA duly approved by the National Capital Regional 6. We direct the Chief Secretary of the State to appoint officers not below the level of Principal Secretaryto conduct a thorough inquiry regarding the acts of Greater Noidain proceeding to implement Master Plan 2021 without approval of N.C.R.P. Board decisions taken to change the land use indiscriminate proposals for acquisition of land and thereafter the State Government shall take appropriate action in the matter Pursuant to the directions issued under paragraph 482of the judgment in the case of Gajraj Singh and others the respondent authority took a decision in its Board meeting for paying additional compensation to the extent of 64.70% to all land owners whether they had challenged the notifications or not. A decision was also taken not to allot abadi plot to the extent of 10 to those land owners who had not approached the writ court and had not questioned the acquisition proceedings. This decision of the authority was based on the fact that such huge area of developed abadi land was not available so as to allot it to all such persons who did not approach the Court. The contention of the petitioners that irrespective of the fact whether the notifications issued in respect of land acquisition proceedings were under challenge along with the bunch of cases decided by the Full Bench they should be granted the same benefit regarding developed abadi plot as was granted by the Full Bench is liable to be rejected for the reason that in the case of Gajraj Singh and others the Full Bench granted relief to the petitioners and to such persons whose earlier writ petitions challenging the notifications had been dismissed or who had not come to the Court challenging the notifications which were subject matter of challenge in the writ petitions in view of the peculiar facts of the case having regard to the extensive development which had taken place subsequent to the acquisition proceedings and also that the Supreme Court in the case of Savitri Devi vs. State of U.P. and others2 had made it clear that the directions issued by the Full Bench shall not be treated as a precedent in future cases 9. We may also refer to the case of Mange @ Mange Ram Vs. State of U.P. and others3 where in a similar set of facts certain petitioners whose lands had been acquired under notifications which were challenged not by the petitioners but by other similarly situate landowners filed writ petitions in the year 2015) 7 SCC 21 2016ADJ 792016 praying that they being similarly situate with those landowners who had filed writ petitions and challenged the acquisition proceedings were also entitled to claim the same relief which had been granted to the writ petitioners in terms of the judgment in the case of Gajraj Singh and others and upheld in the case of Savitri Devi. The claim raised by the petitioners therein was turned down by this Court after recording a conclusion that the benefit granted by the Full Bench in the case of Gajraj Singh and others cannot be extended to the petitioners even though they may be similarly situate and the action of the respondents in not giving additional developed abadi land was neither arbitrary nor discriminatory. The observations made in the judgment are as follows : “11. Having heard the learned counsel for the parties and having perused the direction given by the Full Bench in Gajraj s casewe find that the judgment of the Full Bench was affirmed by the Supreme Court in Savitri Devito the authority to consider the case for payment of additional compensation and allotment of developed abadi plot to those land owners who had not challenged the acquisition proceedings or whose writ petitions were dismissed earlier was also affirmed by the Supreme Court. Based on such direction the authority took a decision to pay additional compensation to all the land owners irrespective of the fact as to whether they had challenged the acquisition proceedings or not. But with regard to allotment of developed abadi land the authority took a decision not to allot to those land owners who had not approached the writ Court on the ground that they have no developed land to allot to these land owners. The fact that the authority does not have any developed land for allotment has not been disputed as no rejoinder affidavit has been filed nor any evidence has been brought on record. We also find that such decision taken by the Board is neither arbitrary nor discriminatory 12. The Full Bench in order to save the acquisition proceedings had issued the direction for payment of additional compensation and for allotment of developed abadi plots in the extenuating facts and circumstances of the case. The Supreme Court acceded to the said consideration holding that the Full Bench was justified in issuing such directions in the peculiar facts and circumstances of the case and in order to save the acquisition proceedings from the vice of arbitrariness. The Supreme Court while affirming the decision of the Full Bench categorically held that the said decision would not be treated to form a precedent for future cases. The Supreme Court held: "50. Keeping in view all these peculiar circumstances we are of the opinion that these are not the cases where this Court should interfere under Article 136 of the Constitution. However we make it clear that directions of the High Court are given in the aforesaid unique and peculiar specific background and therefore it would not form precedent for future cases 13. Thus we are of the opinion that the ratio decendi of the Full Bench cannot be applied to similarly situated persons. The said benefit given by the Full Bench cannot be extended to the petitioners even though they may be similarly situated and their land had been acquired under the same notification 14. We are of the view that the action of the respondents in not giving additional developed abadi land to the petitioners is neither arbitrary nor discriminatory especially when there is no evidence to dispute the fact that the respondents have no developed land with them for The aforementioned judgment in the case of Mange Mange Ram Vs. State of U.P. and others decided along with other connected matters was subjected to challenge before the Supreme Court and came to be decided in terms of the judgment in Khatoon and others Vs. State of U.P. and others4. The question as to whether the landowners were entitled to claim benefit of the judgment passed by the Full Bench in the case of Gajraj Singh and others which had been upheld in the case of Savitri Devi insofar as it related to allotment of additional abadi plot was considered by the Supreme Court in aforementioned case of Khatoon and others and the contention sought to be raised on the basis of the principles underlying Article 14 of the Constitution was repelled after taking notice of the fact that insofar as allotment of abadi plot is concerned the High Court in the case of Gajraj Singh and others had confined the relief only to the petitioners therein and for other landowners the matter was left to discretion of the authority concerned which had declined to extend the said relief. It was held that the appellants had neither any legal right nor any factual foundation to claim the relief of allotment of additional developed abadi plot 14 SCC 346 Furthermore it was taken note of that the relief in the case of Gajraj Singh was granted by the High Court in exercise of its extraordinary jurisdiction under Article 226 and was confined to the petitioners therein and even the Supreme Court in Savitri Devi case held that said directions were not to be treated as precedent and were limited only to the facts obtaining in that case The relevant observations made in the judgment in the case of Khatoon and others are being extracted below : 16. In other words the case of the appellant writ petitioners before the High Court was that the reliefs which were granted to the landowners by the Full Bench in Gajraj case and affirmed by this Court in Savitri Devi case be also granted to the appellants because their lands were also acquired in the same acquisition proceedings in which the lands of the writ petitioners of Gujraj case was acquired. In effect the relief was prayed on the principles of parity between the two landowners qua State 17. It is however pertinent to mention that so far as the direction of the High Court to award additional compensation payable @ 64.70 was concerned the same was already implemented by the State by paying the compensation to all the landowners including the appellants without any contest 18. In this view of the matter the only question before the High Court in the appellants writ petitions that remained for decision was as to whether the appellants are also entitled to claim the relief of allotment of developed abadi plot to the extent of 10% of their acquired land subject to maximum of 2500 Sq.M.in terms of the judgment in Gajraj case and Savitri Devi case 36. Therefore the only question that now survives for consideration in these appeals is whether the appellants are entitled to get the benefit of second direction issued by the High Court in Gajraj namely allotment of developed abadi plot to the appellants 37. In our considered opinion the appellants are not entitled to get the benefit of the aforementioned second direction and this we say for the 38. First the High Court in Gajraj had in express terms granted the relief of allotment of developed abadi plot confining it only to the landowners who had filed the writ petitions. In other words the High Court while issuing the aforesaid direction made it clear that the grant of this relief is confined only to the writ petitionersandwere concerned the High Court dealt with their cases separately and accordingly issued directions which are contained in conditions 4(a) andof the order 40. In conditions 4(a) and the High Court in express terms directed the Authority to take a decision on the question as to whether the Authority is willing to extend the benefit of the directions contained in conditions 3(a) and also to second category of landowners or not 41. In other words the High Court in express terms declined to extend the grant of any relief to the landowners who had not filed the writ petitions and instead directed the Authority to decide at their end as to whether they are willing to extend the same benefit to other similarly situated landowners or not 42. It is therefore clear that it was left to the discretion of the Authority to decide the question as to whether they are willing to extend the aforesaid benefits to second category of landowners or not 43. Third as mentioned supra the Authority in compliance with the directions decided to extend the benefit in relation to payment of an additional compensation @ 64.70% and accordingly it was paid also On the other hand the Authority declined to extend the benefit in relation to allotment of developed abadi plot to such landowners. 44. Fourth it is not in dispute being a matter of record that when the Authority failed to extend the benefit regarding allotment of additional abadi plot to even those landowners in whose favour the directions were issued by the High Court in Gajraj and by this Court in Savitri Devi the landowners filed the contempt petition against the Authority complaining of non compliance with the directions of this Court but this Court dismissed the contempt petition holding therein that no case of non compliance was made out 45. In our view the appellants have neither any legal right and nor any factual foundation to claim the relief of allotment of additional developed abadi plot. In order to claim any mandamus against the State for claiming such relief it is necessary for the writ petitioners to plead and prove their legal right which should be founded on undisputed facts against the State. It is only then the mandamus can be issued against the State for the benefit of writ petitioners. Such is not the case here 47. One cannot dispute that the Act does not provide for grant of such reliefs to the landowners under the Act. Similarly there is no dispute that the State paid all statutory compensation which is payable under the Act to every landowner. Not only that every landowner also got additional compensation @ 64.70% over and above what was payable to them under the Act. 48. The reliefs in Gajraj were granted by the High Court by exercising extraordinary jurisdiction under Article 226 of the Constitution and keeping in view the peculiar facts and circumstances arising in the case at hand. They were confined only to the landowners who had filed the writ petitions. Even this Court in Savitri Devi case held that the directions given be not treated as precedent for being adopted to other cases in future and they be treated as confined to that case only 51. In our opinion therefore there is no case made out by the appellants for grant of any relief much less the relief of allotment of additional developed abadi plot. If we entertain the appellants plea for granting them the relief then it would amount to passing an order contrary to this Court s directions contained in para 50 of the order passed in Savitri Devi case." The question as to whether the benefit of the directions issued by the Full Bench in the case of Gajraj Singh and others for providing additional compensation to the extent of 64.70% and developed abadi plot to the extent of 10% of the land acquired was liable to be extended to such tenure holders also whose lands were not acquired in terms of the notifications which were under challenge in the case of Gajraj Singh and others has also been considered by a coordinate Division Bench of this Court in the case of Smt. Rameshwari and 3 others Vs. State of U.P and 2 others5 and in terms of judgment dated 3.5.2017 it has been held as follows : “A perusal of the Full Bench judgement in the case of Gajraj Singh Supra) goes to show that in order to save the acquisition proceedings direction for payment of additional compensation and allotment of developed abadi plot was issued in peculiar facts and circumstances particularly the fact that extensive development had taken place even though the Full Bench found that opportunity to file objection under Section 5A Act had been wrongly denied to the tenure holders However the benefit extended to the land owners in lieu of saving the acquisition proceedings even though the same were found to be illegal and liable to be quashed was restricted to the acquisition proceedings challenged before it. However the question of extending the benefits of additional compensation and allotment of developed abadi plot to such land holders whose challenge to the land acquisition notification already stood dismissed or such land holders who did not approach this Court challenging the land acquisition notification though the said notifications were subject matter of challenge before the Full Bench 5 Writ C No. 189417 decided on 3.5.2017 was left open to be decided by the authority. As already noticed above in pursuance of the aforesaid directions the authority took a decision in its Board meeting for making payment of additional compensation to the extent of 64.7% to all land holders whether they had put challenge to the land acquisition notifications or not However in respect of allotment of abadi plot to the extent of 10% the authority took a decision not to extend the benefit to such land holders who had not approached the writ court and had not questioned the acquisition proceedings In the case in hand the petitioners land was acquired by means of notification dated 09.09.1997. Equally admitted fact is that the petitioners accepted the award and did not come forward to challenge the land acquisition proceedings. Not only that notification dated 9.9.2017 whereunder an area 1275 18 18 including Gata no. 582 area 6 5 13 538 area 0 15 6 609 area 1 2 12 and 615 area 9 10 10 of the petitioners situate at village Tugalpur was acquired was not subject of matter of challenge before the Full Bench. In view of above facts and discussions it is clear that the relief which was granted by the Full Bench in the case of Gajraj Singhcannot be made applicable to the acquisition proceedings which were not assailed and were not subject matter of adjudication before the Full Bench in the case of Gajraj Singhin terms of which the Authority was to take a decision as to whether benefit of additional compensation and allotment of abadi plot to the extent of 10% was to be given was confined to those land holders whose writ petitions challenging the notifications had been dismissed earlier and to those who had not approached the court to challenge the notifications which were subject matter of challenge in the writ petitions decided along with the case of Gajraj Singh and others. The directions under para 482were not in respect of those persons such as the petitioners in the present case whose land had been acquired in terms of 6. 2019ADJ 225of the Act. Therefore a person whose land is acquired not only gets adequate compensation as per market value of the land but also gets interest on the amount of compensation 12% from the date of notification under Section 4 of the Act as well as an amount of solatium which is 30% of the amount of compensation. Neither the Land Acquisition Act nor the regulations provides that in the event of acquisition of the land one of the family members of the landholder shall be given employment in addition to the amount of compensation. Therefore in the absence of any statutory provision or any promise the petitioner respondent cannot claim appointment as a matter of right nor can the respondent make such appointment.” The aforementioned position has been considered in a recent decision of this Court in Anand Prakash and Another vs State of U.P. and others8 wherein the question which was 2005) 1 UPLBEC 118 2019ADJ 17117(4) and the notification dated 27.07.2006 issued under Section 6 17of the Act 1894. Admittedly the petitioners did not choose to challenge the land acquisition proceedings and it is also not the case of the petitioners that the notifications in terms of which the land of the petitioners was acquired were subject matter of challenge in the writ petitions which were decided by the Full Bench in the case of Gajraj Singh and others It may be noticed that there was no direction in the judgment of the Full Bench for grant of payment of additional compensation or allotment of abadi land or for consideration of the said benefits by the authority in respect of those persons whose land had been acquired in terms of the notifications which were not subject matter of challenge in the case of Gajraj Singh and Others and connected bunch of writ petitions The petitioners have admitted to having accepted the compensation in respect of their land which was subject matter of acquisition. The additional benefit by way of allotment of developed abadi plot which is sought by the petitioners not being founded on any legally enforceable right no mandamus can be claimed for grant of such benefit. In view of the foregoing discussion the petitioners are not entitled to reliefs which have been sought The writ petition thus fails and is accordingly dismissed Order Date : 9.2.2022 Dr. Y.K. Srivastava J) (Pritinker Diwaker J

Maintenance should be paid from the date of filed application and not from the date of judgment – Jharkhand high court

Maintenance should be paid from the date of filed application and not from the date of judgment – Jharkhand high court Revision petition directed against the judgment in the maintenance Case No. 198 of 2014 questioning about the effective date of grant of maintenance whether it should be paid from the passing of judgment or the filing of the application was heard and disposed of by a single bench of HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY in the case of rinki kumari versus Kundan Kumar(Cr. Rev. No. 577 of 2019) The learned counsel, in this case, has relied upon the case of (2021) 2 SCC 324 (Rajnesh Vs. Neha and Another) referring to para 113 of the judgment to prove that the law is well settled in the case of maintenance and it should be awarded from the filing of the application since the period during which maintenance proceeding remained pending. the learned counsel appearing on behalf of the respondents submits that the pursuant was to seek instructions as to whether the maintenance has been paid to the petitioner as per the impugned order or not, but the pursuant does not have any instructions. After hearing both the parties the court finds that the lower court allowed the petition for maintenance on a contest, directed the opposite party to pay monthly maintenance from the date of passing of judgment along with litigation cost, and further directed the opposite party to make a payment of monthly allowance on or before 10th day of each month. The court considers the judgment relied upon the petitioner and in that view, it considers that directs payment of monthly maintenance from the date of judgment, is not sustainable in the eyes of law and it is accordingly modified by holding that the petitioner would be entitled to the payment of monthly allowance as fixed by the learned court below from the date of the application filed before the learned court below and with this The present criminal revision petition is accordingly disposed of with the aforesaid modification of the impugned judgment and aforesaid direction to the opposite party. Click here to read the judgment

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Rev. No. 5719 Rinki Kumari @ Anita Kumari aged about 32 years wife of Kundan Kumar @ Kundan Kumar Singh and daughter of Tilak Sharma permanent resident of village Korma P.O. Chhatubagh P.S. Chandauti District Gaya at present residing at Tungri Toli behind St. Francis School Harmu P.O. Harmu P.S. Argora District Ranchi… … Kundan Kumar @ Kundan Kumar Singh son of Amrendra Kumar Singh @ Munna singh resident of village Korma P.O. Chhatubagh P.S. Chandauti District Gayawhereby the learned court below has allowed the application of the petitioner and directed the opposite party to pay an amount of Rs. 1500 per month to the petitioner from the date of passing of the judgement and has further directed to pay Rs. 5 000 lump sum as litigation cost and has also directed the opposite party to make payment of monthly allowance on or before 10th day of each month of English calendar. Vide order dated 31.01.2020 this Court has refused to interfere with the quantum of maintenance. However the notice was issued on the point regarding effective date of grant of maintenance whether it should have been from the date of passing of the impugned judgement or from the date of filing of the maintenance application. Pursuant to the notice the opposite party has appeared but no counter affidavit as such has been filed by the opposite party. The learned counsel for the petitioner has relied upon a judgement passed by Hon’ble Supreme Court reported in 2021) 2 SCC 324 and has referred to para 113 of the said judgement to submit that the law has been well settled that in a case of maintenance the maintenance is to be awarded from the date of filing of the application since the period during which maintenance proceeding remained pending is not within the control of the applicant. The learned counsel submits that the point on which notice was issued in the present case is squarely covered by the aforesaid judgement. The learned counsel appearing on behalf of the opposite party on the other hand submits that pursuant to order dated 10.12.2021 he was to seek instructions as to whether maintenance has been paid to the petitioner as per the impugned order or not but he does not have any instructions. Upon this the learned counsel for the petitioner submits that not even a farthing has been paid to the petitioner and this fact has been mentioned by the petitioner in the present memo also. After hearing the learned counsel for the parties this Court finds that the learned court below while allowing the petition for maintenance on contest directed the opposite party to pay monthly maintenance at the rate of Rs. 1500 per month from the date of passing of the judgement along with a lump sum litigation cost of Rs. 5 000 with further direction to make payment of monthly allowance on or before 10th day of each month of English calendar. 10. Considering the aforesaid judgement relied upon by the petitioner in the case of Rajnesh Vs. Neha and Anotherwherein in paragraph 113 the Hon’ble Supreme Court has issued direction to bring about uniformity and consistency in the orders passed by all courts by directing that maintenance be awarded from the date on which the application was made before court concerned the right to claim maintenance must date back to the date of filing the application since the period during which the maintenance proceedings remained pending is not within the control of the applicant. In view of the aforesaid judicial pronouncement of the Hon’ble Supreme Court the impugned order dated 18.02.2019 passed by the learned Addl. Principal Judge Addl. Family Court Ranchi in Original Maintenance Case No. 1914 to the extent it directs payment of monthly maintenance from the date of judgement is not sustainable in the eyes of law and it is accordingly modified by holding that the petitioner would be entitled for the payment of monthly allowance as fixed by the learned court below from the date of application filed before the learned court below which is dated 22.09.2014. 12. Thus the petitioner would be entitled for maintenance at the rate of Rs. 1500 per month from the month of October 2014 apart from the litigation expenses of Rs.5 000 already fixed by the learned court below. The entire arrears of maintenance for 88 months till January 2022 comes to Rs. 1 32 000 and by including litigation expenses it comes to Rs. 1 37 000 . 14. The learned counsel for the petitioner has furnished the details of the bank account of the petitioner which is as follow: Account holder name : Mrs. Anita Kumari Bank name and Branch: Punjab National Bank Indira Place Hinoo Ranchi Account No. 4670001700016695 MICR Code IFSC Code 834024007 PUNB0467000 15. The opposite party is directed to remit the arrears of maintenance and litigation expenses amounting to Rs. 1 37 000 in monthly instalment of Rs. 10 000 each with effect from 10th February 2022 along with the current monthly maintenance amount for each month as directed by the learned court below to the aforesaid bank account of the petitioner through RTGS mode. 16. The present criminal revision petition is accordingly disposed of with the aforesaid modification of the impugned judgement and aforesaid direction to the opposite party. 17. Let a copy of this order be communicated to the opposite party by the office through speed post and the office is directed to track the speed post delivery online and put the same on 18. Let this order be communicated to the learned court below through FAX e mail. Anubha Rawat Choudhary J.)

Resignation letter cannot be withdrawn, once it is accepted: High Court of Delhi.

When a resignation letter has been submitted as well as it has been accepted, and such acceptance has been duly communicated, then later the employee cannot withdraw the resignation letter. A divisional bench comprising Hon’ble Justice Manmohan and Justice Navin Chawla, in the matter of Bijendra Yadav Vs. Union of India and ANR (W.P.(C) 1835/2021), dealt with an issue where a writ petition had been filed challenging the order passed by Central Administrative Tribunal (CAT) on 14th May 2019. In the present case, the petitioner had filed a writ petition against the order passed by the Central Administrative Tribunal to pray for a direction of the court to the respondent, to reinstate the petition in the service as Scientist ‘E’ with all consequential benefits. The counsel for the Petitioner submitted that the CAT had failed to consider that the petitioner neither resigned nor intended to resign from his post in Defence Research and Development Organisation (DRDO), rather the petitioner by the letter of 10th August 2017, had meant to seek a transfer to a family station as his wife was unwell. Further, a paper book revealed that the petitioner was appointed as scientist ‘E’, on an adhoc basis on 9th August 2016. He sought extensions to join and after the delayed joining, the petitioner used to remain absent on multiple days due to family reasons. In the letter of 10th August 2017, the petitioner requested to either transfer him or accept his resignation. As per the Respondent, the petitioner had withdrawn his resignation letter on 2nd November 2017. But, prior to his withdrawal, the resignation was accepted on 1st November 2017 and the same was communicated to the petitioner on 7th November 2017. The court upheld the view of the Central Administrative Tribunal and held that the petitioner cannot withdraw his resignation after it had been accepted. The court was also of the view that-“ a sensitive and highly Specialized Organisation cannot afford to have a reluctant and wavering scientist”. Thereby the court dismissed the writ petition along with the pending application.    Click Here For The Judgement

IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(C) 1835 2021 & CM APPL. 5273 2021 Date of Decision: 05.07.2021 BIJENDER YADAV Petitioner Through: Mr.M.K. Bhardwaj Adv. UNION OF INDIA AND ANR Respondents Through: Mr.Jaswinder Singh CGSC for UOI with Mr.Kavindra Gill GP for HON BLE MR. JUSTICE MANMOHAN HON BLE MR. JUSTICE NAVIN CHAWLA MANMOHAN J.The petition has been heard by way of video conferencing. The present writ petition has been filed challenging the order dated 14th May 2019 passed by the Central Administrative Tribunal in OA No. 1503 2019. Petitioner also challenges the letter dated 17th January 2019 27th November 2019 and 01st November 2017 and prays for a direction to the respondents to reinstate the petitioner in service as Scientist ‘E’ with all consequential benefits. Learned counsel for the petitioner states that the CAT failed to consider that the petitioner had neither resigned nor intended to resign from his post in Defence Research and Development Organisation DRDO) and the same is evident from the alleged resignation letter dated WP(C) 1835 2021 10th August 2017. He emphasizes that the petitioner by way of the said letter had only sought a transfer to a family station as his wife was unwell. He also submits that the CAT erred in holding that the petitioner could not withdraw his alleged resignation inasmuch as Rule 26(4) of CCS Temporary Services) Rules 1965 permits a government servant to withdraw his resignation prior to its acceptance. A perusal of the paper book reveals that the petitioner was appointed as Scientist ‘E’ in DRDO on ad hoc basis on 09th August 2016 at an establishment in Gaya Bihar. He sought extensions to join and finally joined on 10th April 2017 only i.e. after a gap of nearly eight months. Even after the delayed joining the petitioner remained absent on various dates on the grounds ranging from his illness to his wife and parents illness as well as due to a new born baby. The petitioner vide letter dated 10th August 2017 requested the respondents to either transfer him or to accept his resignation. It is pertinent to mention that the petitioner remained absent from service after submitting the letter dated 10th August 2017. The said letter is reproduced hereinbelow: “Subject: Request for Transfer Notice of Termination of Service to the Post of Scientist E in DRDO issued to appointing authority under Rule 5 of the Central Civil Kind Attn: Director SPIC &Joint Director Admin 1. Reference to your letter DOP 05 56069 115109 dated 30 Aug 2016 17 Jan 2017 and 22 Mar 2017 regarding appointment to the Post of Scientist E in DRDO. Rules 2. The Extension of adhoc appointment upto 31st Dec 2017 was WP(C) 1835 2021 DOP 05 56069 115109 Dated 30Jun 2017. 3. Sir Due to my personal family requirements my presence is required in Delhi. Earlier I manage things by visiting my home from gaya on weekly or 15 days basis. Sometimes taking helps from relatives. But now it will not possible for me to visit every week due to that far location of site or asking people to support. 4. I request you kindly transfer me in Delhi or nearby Delhi in Haryana Chandigarh Rajasthan state anywhere Uttaranchal if any site is there. If it is not possible in SPIC then kindly consider to give me a transfer in some another DRDO. I need this transfer because Indeed initial 2 years to settle things on family side. 5. In case it is not possible as mentioned in point 4 In terms of Para 3 of reference lettersabove and in pursuance of sub rule of rule 5 of the Central Civil Services rules 1965 I hereby give notice to the termination of appointment with effect from the date of expiry of a period of one month from the date of this letter. 6. Hence the undersigned may be released of all duties w.e.f 10th September 2017.” emphasis supplied) It is the respondents’ case that the resignation was accepted on 01st November 2017 and communicated on 07th November 2017 i.e. prior to the petitioner withdrawing his resignation on 02nd November 2017. The competent authority’s letter dated 01st November 2017 is reproduced hereinbelow: “1. Reference your letter No.SPIC Admin VTR r 2017 dated 08 Sep 2017. 2. Competent Authority has accepted notice given by Sh. Bijender Yadav Sc ‘E’ SPIC Delhi for termination of temporary service under Rule 5 of CCSRules 1965 with effect WP(C) 1835 2021 from 10 Sep 20171835 2021

Reducing percentile for admission would not amount to lowering the standards of education: Supreme Court

Reducing percentile for admission to the first-year BDS course would not amount to lowering the standards of education. The Supreme Court of India allowed writ petitions from the students who qualified NEET, for admission to BDS and lowered the minimum marks by 10% for the students. The judgement was given by Justice L Nageswara Rao and Justice Krishna Murari in the matter of, Harshit Agarwal & Ors vs. Union of India & Ors. [Writ Petition (C) No.54 of 2021]. The learned Senior Counsel submitted that the proviso to Regulation II (5) (ii) of the Regulations empowers the Central Government to lower the minimum marks required for admission to BDS course in consultation with the Dental Council of India. In spite of the recommendation made by the Dental Council of India for lowering the qualifying cut off percentile, the first Respondent has arbitrarily and unreasonably did not act upon the recommendation. Mr. Krishna Dev learned counsel argued that there is no basis for the assumption that lowering of the percentile would affect standards of education. There is no basis for the allegation that the private colleges have been charging exorbitant fees for which reason seats in the BDS first year are not being filled up. It was made clear in the proviso that the Central Government has the discretion to lower the minimum marks required for admission to BDS course in consultation with the Dental Council of India when sufficient number of candidates in the respective categories fail to secure minimum marks in the NEET entrance test. The judgement stated, “…we set aside the decision of the first Respondent dated 30.12.2020 to not reduce the minimum marks for admission to BDS course as it suffers from the vices of illegality and irrationality. We direct that the vacant seats in first year BDS course for the year 2020-2021 shall be filled up from the candidates who have participated in the NEET (UG) courses for the year 2020-2021 after lowering the percentile mark by 10 percentiles. The candidates belonging to the general category who have secured 40 percentiles shall be eligible to be considered for admission in the first year BDS course for the year 2020-2021. Likewise, students belonging to the SC/ST/OBC categories shall be qualified if they have secured 30 percentiles. In so far as General candidates with bench mark disabilities specified under the Rights of Persons with Disabilities Act, 2016, they would be eligible if they have secured 35 percentiles.”

Non Reportable IN THE CIVIL ORIGINAL JURISDICTION Writ PetitionNo.521 Harshit Agarwal & Ors PetitionersNo.921 JUDGMENT L. NAGESWARA RAO J The Petitioners in Writ Petition No. 54 of 2021 are students who appeared in the National Eligibility cum Entrance Testexamination 2020 for admission to the first year of Bachelor of Dental Surgeryconducted on 13 09 2020. They did not obtain the minimum marks prescribed by Sub Regulation of Regulation II of the Dental Council of India Revised BDS Course Regulations 2007(ii) of the Regulations empowers the Central 2 | P a g e Government to lower the minimum marks required for admission to BDS course in consultation with the Dental Council of India. In spite of the recommendation made by the Dental Council of India for lowering the qualifying cut off percentile the first Respondent has arbitrarily and unreasonably not acted upon the recommendation. He stated that the first respondent accepted the proposal of the second Respondent and lowered the cut off percentile for the year 2019 2020. He also relied upon the proceedings relating to the lowering of the minimum marks for the Super speciality courses for the year 2019 2020 and for admission in Ayurveda Yoga and Naturopathy Unani Siddha and HomeopathyUG courses for the year 2020 2021 He contended that percentile is different from percentage and by lowering the percentile there would be no compromise of standards. He argued that 7 000 seats in the first year BDS course are vacant and the available infrastructure would be wasted. Mr. Krishna Dev learned counsel argued that there is no basis for the assumption that lowering of the percentile would affect standards of education. There is no basis for the allegation that the private colleges have been charging exorbitant fees for which 3 | P a g e reason seats in the BDS first year are not being filled up according to him. 5. Ms. Aishwarya Bhati learned Additional Solicitor General submitted that the first Respondent has taken an informed decision on 30.12.2020 not to lower the minimum marks for admission to dental surgery course for the year 2020 2021 as sufficient number of candidates are available She submitted that 7.71 lakhs candidates were found to be eligible for filling up 82 000 MBBS and 28 000 BDS course seats. For each vacant seat seven candidates are available She further highlighted the point that there are 2.77 lakh Dentists registered with the Dental Council of India. Taking into consideration the availability of 80% of Dentists there is one Dentist for every 6080 persons which is better than the WHO norms of 1 : 7500. It was further contended by her that the seats in BDS course falling vacant is due to the candidates giving preference to other streams or their disability to pay exorbitant fee charged by the private colleges. Responding to the submissions made by the learned Additional Solicitor General Mr. Singh learned Senior Counsel for the Petitioners brought to the notice of this Court that admissions to AYUSH courses are also made from students who qualify in the NEET examination 2021. The 4 | P a g e addition of 52780 seats in AYUSH would reduce the ratio of eligible candidates to the seats available in BDS to 1 : 4.5. Sub Regulationof Regulation II of the Regulations is “In order to be eligible for admission to BDS Course for a particular academic year it shall be necessary for a candidate to obtain minimum of marks of 50th percentile in ‘National Eligibility cum Entrance Test to BDS course’ held for the said academic year. However in respect of candidates belonging to Scheduled Castes Scheduled Tribes Other Backward Classes the minimum marks shall be at 40th percentile. In respect of candidates with locomotory disability of lower amendments the minimum marks shall be at 45th percentile. The percentile shall be determined on the basis of highest marks secured in the All India common merit list in “National Eligibility cum Entrance Test for admission to BDS course. Provided when sufficient number of candidates in the respective categories fail to secure minimum marks as prescribed in National Eligibility cum Entrance Test held for any academic year for admission to BDS Course the Central Government in consultation with Dental Council of India may at its discretion lower the minimum marks required for admission to BDS Course for candidates belonging to respective categories and marks so lowered by the Central Government shall be applicable for the said academic year only” It is clear from the proviso that the Central Government has the discretion to lower the minimum marks required for admission to BDS course in consultation with the Dental 5 | P a g e Council of India when sufficient number of candidates in the respective categories fail to secure minimum marks in the NEET entrance test. There is no dispute that on 06 09 2019 the first Respondent lowered the qualifying cut off percentile for NEET UG) 2019 for admission to BDS course by 10.00 percentile for each category i.e. General SC ST OBC and persons with locomotor disability of lower limbs. The Dental Council of India by a letter dated 28.12.2020 proposed that the percentile for admission to BDS course in Dental colleges should be lowered by 20 percentile for each category. It was stated in the said letter that only 7 71 500 students qualified for admission to MBBS BDS AYUSH and other UG medical courses for the year 2020 2021. It was made clear by the second Respondent that the students qualified are not commensurate with the sanctioned admission capacity in different courses like MBBS BDS AYUSH and other UG medical courses. The second Respondent informed the first Respondent that there is shortage of the students for admission to BDS course and underlined the fact that vacant seats in professional courses would amount to national waste. However the first Respondent decided not to lower the minimum marks required for admission to BDS course. In 6 | P a g e this background the correctness of the decision of the first Respondent not to reduce the minimum marks for first year BDS course has to be examined. Judicial review of administrative action is permissible on grounds of illegality irrationality and procedural impropriety An administrative decision is flawed if it is illegal. A decision is illegal if it pursues an objective other than that for which the power to make the decision was conferred1. There is no unfettered discretion in public law2. Discretion conferred on an authority has to be necessarily exercised only for the purpose provided in a Statute. The discretion exercised by the decision maker is subject to judicial scrutiny if a purpose other than a specified purpose is pursued. If the authority pursues unauthorized purposes his decision is rendered illegal. If irrelevant considerations are taken into account for reaching the decision or relevant considerations have been ignored the decision stands vitiated as the decision maker has misdirected himself in law. It is useful to refer to R. vs St. Pancras Vestry3 in which it was held: “If people who have to exercise a public duty by exercising their discretion take into account maters which the Courts consider not to be proper for the exercise of their discretion then in the eye of law they have not exercised their discretion”. 1 De Smith’s Judicial Review1 SCC 71 324 QBD 37 at p. 375 7 | P a g e 10. The question that arises for our consideration is whether the exercise of the discretion by the first Respondent is for the purpose specified in the Regulations and whether irrelevant considerations have been taken into account making the decision irrational. The proviso to Sub Regulation of Regulation II is clear in its terms empowering the Central Government to exercise its discretion to lower minimum marks only when sufficient number of candidates fail to secure minimum marks. The Central Government cannot pursue any purpose other than the one specified in the proviso to Regulation II (ii There are three reasons given for the decision not to lower minimum marks. The first is that the ratio of available seats vis à vis eligible candidates is 1:7 and therefore there is no dearth of eligible candidates. The other factor which propelled the Central Government to decide that there is no need to reduce the minimum mark is that there are sufficient number of Dentists in India. Lack of keenness of students to join BDS especially in private colleges which charge exorbitant fee as they are interested in MBBS course is yet another ground which impelled the decision of the first Respondent. 8 | P a g e 11. The stand of the Central Government is that there are seven candidates available for each seat and therefore there is no need to lower the minimum marks. This calculation of the first Respondent is without taking into account the fact that NEET 2020 is conducted for admission into different courses like MBBS BDS UG AYUSH and other medical courses. Admissions for UG AYUSH and other UG medical courses are included in the NEET for the first time from this year. That apart it is clear from the letter of the Dental Council of India that NEET has been made mandatory for admission to AIIMS and AIIMS like institutions and ZIPMER. Hitherto AIIMS and AIIMS like institutions and other institutions like ZIPMER were conducting their own separate entrance test. The total number of seats available for the academic year 2020 2021 for MBBS are 91 367 BDS are 26 949 and AYUSH are 52 720 making it a total of 1 71 036 seats. Whereas the NEET qualified candidates are 7 71 500. The ratio of seats available vis à vis eligible students is 1 : 4.5 and not 7. The basis for the decision to not reduce minimum marks that there are sufficient eligible candidates is without considering the above vital facts. The decision which materially suffers from the blemish of overlooking or ignoring wilfully or otherwise vital facts 9 | P a g e bearing on the decision is bad in law4. The decision of the first respondent was propelled by extraneous considerations like sufficient number of Dentists being available in the country and the reasons for which students were not inclined to get admitted to BDS course which remits in the decision being unreasonable. Consideration of factors other than availability of eligible students would be the result of being influenced by irrelevant or extraneous matters. There is an implicit obligation on the decision maker to apply his mind to pertinent and proximate matters only eschewing the irrelevant and the remote5. 12. The first Respondent reduced the minimum marks for admission into first year BDS course for the year 2019 2020 in consultation with the second Respondent. In spite of the recommendation made by the second Respondent to reduce the minimum marks for the year 2020 2021 the first Respondent deemed it fit not to lower the minimum marks for the current year. While arriving at a decision on 30.12.2020 not to lower the minimum marks it does not appear that the first Respondent has consulted the second Respondent in accordance with the proviso to Sub Regulation ii) of the Regulation II. There is no dispute that the 4 Baldev Raj vs. Union of India4 SCC 321 5 Commissioner of Income Tax vs. Mahindra & Mahindra 4 SCC 392 10 | P a g e minimum marks have been reduced by the first Respondent for the super speciality courses for the last year and AYUSH courses for the current year. If reducing minimum marks amounts to lowering the standards the first Respondent would not do so for super speciality courses. We are in agreement with Mr. Maninder Singh learned Senior Counsel for the Petitioners that lowering the minimum marks and reducing percentile for admission to the first year BDS course would not amount to lowering the standards of 13. There are about 7 000 seats available for admission to the first year BDS course during the year 2020 2021. We are not impressed by the argument of the learned Additional Solicitor General that there are sufficient number of Dentists in the country and therefore there is no harm in the seats being unfilled. However we find force in the submission made by the learned Additional Solicitor General that the fee charged by the private dental colleges is a deterrent for the seats not being filled up. Only 265 out of 7 000 seats are vacant in government colleges. All the other unfilled seats are in private Dental colleges. The Managements of private Dental Colleges shall consider reducing the fee charged by them to encourage students to join the Colleges. Reliance 11 | P a g e was placed by the first Respondent in an order passed by this Court in Union of India v. Federation of Self Financed Ayurvedic Colleges Punjab SCC 115 to submit that non availability of eligible candidates for admission to AYUSH courses cannot be a reason to lower the standards prescribed by the Central Council for admission The facts of this case are entirely different as the Dental Council of India itself recommended for lowering the minimum marks and the Regulations provide for lowering the minimum marks. That apart the first Respondent has exercised its discretion and lowered the minimum marks for admission to first year BDS course for the year 2019 2020 14. For the aforementioned reasons we set aside the decision of the first Respondent dated 30.12.2020 to not reduce the minimum marks for admission to BDS course as it suffers from the vices of illegality and irrationality. We direct that the vacant seats in first year BDS course for the year 2020 2021 shall be filled up from the candidates who have participated in the NEET courses for the year 2020 2021 after lowering the percentile mark by 10 percentile. The candidates belonging to the general category who have secured 40 percentile shall be eligible to be considered for admission in the first year BDS course for the 12 | P a g e year 2020 2021. Likewise students belonging to the SC ST OBC categories shall be qualified if they have secured 30 percentile. In so far as General candidates with bench mark disabilities specified under the Rights of Persons with Disabilities Act 2016 they would be eligible if they have secured 35 percentile. The admissions shall be made strictly in accordance with merit and the admission process shall be completed by 18.02.2021. Any other student who has qualified in NEET 2020 even without lowering the minimum marks and is willing to participate in the admission process shall also be considered for admission to BDS course 15. The Writ Petitions are allowed .................................J [L. NAGESWARA RAO ..............................J [KRISHNA MURARI New Delhi February 08 2021. 13 | P a g e

The power of superintendence over all courts by the high court: High Court Of New Delhi

The present petition under Article 227 of the Constitution of India impugns the order dated 1st September 2021, and the same issue was held in the judgement passed by a single bench judge comprising HON’BLE MR. JUSTICE AMIT BANSAL, in the matter MED FRESH PVT LTD  V. HLL INFRATECH SERVICES LIMITED & ORS. dealt with an issue mentioned above. The application filed on behalf of the petitioner seeking waiver of cost imposed by the Trial CM(M) 957/2021 Court, while allowing amendment application of the petitioner, has been dismissed. Later the vide order which was dated on 30th May 2019, the Trial Court rejected the plea of the petitioner for grant of interim injunction, to restrain the defendants no. 1 and 3 in the suit proceedings from invoking the aforesaid bank guarantee. They also mentioned that an amendment application was filed on behalf of the petitioner, only limited to the purpose of adding a relief concerning the recovery of the amount invoked under the bank guarantee. Counsel for the petitioner contends that since the amendment was only procedural and consequent to subsequent events, the same should have been allowed without the imposition of any costs. He also states that no reasons have been given in the order dated 6th March 2021 for the imposition of costs. It was further contended that the impugned order wrongly records that: Counsel appearing on behalf of respondent no. 2 on advance notice submits that the written statement filed on behalf of respondent no. 2 CM(M) 957/2021 was already on record when the amendment application was allowed, however, he cannot seriously dispute the contention that the amendment carried out was only procedural and consequential to the bank guarantee being invoked. Ordinarily, It was mentioned that this Court in the exercise of its jurisdiction under Article 227 of the Constitution of India would be loathed to interfere with orders of this nature passed by the Commercial Court, however, the counsel for the petitioner contends that the costs imposed by the Commercial Court in the present case would have to be borne by the counsel who appeared on behalf of the petitioner before the Commercial Court. The court perused the facts and argument’s presented, it believed that- “In the facts and circumstance of the case, the impugned order passed by the Commercial Court is set aside. The amended plaint be taken on record without payment of costs. The present petition is disposed of in above terms”.

IN THE HIGH COURT OF DELHI AT NEW DELHI CM(M) 957 2021 Date of decision: 28th October 2021. MED FRESHE PVT LTD Through: Mr. Mayank Wadhwa with Mr. ..... Petitioner Junaid Qureshi Advocates. HLL INFRATECH SERVICES LIMITED & ORS. Respondents Through: Mr. Hitesh Sachar Advocate for R 2 Mr. Nikhilesh Krishnan with Ms. Tishya Pandey Advocates for R 1. HON BLE MR. JUSTICE AMIT BANSAL VIA VIDEO CONFERENCING] AMIT BANSAL J.CM No. 38678 2021Allowed subject to all just exceptions. The application is disposed of. CM(M) 957 2021 & CM No. 38679 2021The present petition under Article 227 of the Constitution of India impugns the order dated 1st September 2021 passed by the District Judge Commercial Court) 02 in CS(COMM) 176 2019 whereby the application filed on behalf of the petitioner seeking waiver of cost imposed by the Trial CM(M) 957 2021 dismissed. Court while allowing amendment application of the petitioner has been The suit in question was filed on 23rd May 2019 seeking permanent and mandatory injunction against the invocation of conditional bank guarantee. Vide order dated 30th May 2019 the Trial Court rejected the plea of the petitioner for grant of interim injunction to restrain the defendants no. 1 and 3 in the suit proceedings from invoking the aforesaid bank guarantee. During the pendency of the suit the bank guarantee was invoked and accordingly an amendment application was filed on behalf of the petitioner only limited to the purpose of adding a relief with regard to recovery of the amount invoked under the bank guarantee. Counsel for the petitioner contends that since the amendment was only procedural and consequent to subsequent events the same should have been allowed without imposition of any costs. He states that no reasons have been given in the order dated 6th March 2021 for imposition of costs. It is further contended that the impugned order wrongly records thatcosts of Rs.25 000 was imposed by the order dated 6th March 2021 whereas costs of Rs. 20 000 had actually been imposed and the said amendment application was filed on 20th February 2020 instead of 20th February 2021. He further submits that when the amendment application was allowed on 6th March 2021 the written statement filed by the respondent no. 1 was not on Counsel appearing on behalf of the respondent no. 2 on advance notice submits that the written statement filed on behalf of respondent no. 2 CM(M) 957 2021 was already on record when the amendment application was allowed however he cannot seriously dispute the contention that the amendment carried out was only procedural and consequential to the bank guarantee being invoked. The impugned order while dismissing the application filed on behalf of the petitioner for waiver of costs records that since the defendants have invested time and labour in contesting the suit and already filed written statement upon amendment of the plaint the defendants shall be forced to file the written statement afresh and consequently incur costs for such filing. Ordinarily this Court in exercise of its jurisdiction under Article 227 of the Constitution of India would be loathe to interfere with orders of this nature passed by the Commercial Court however the counsel for the petitioner contends that the costs imposed by the Commercial Court in the present case would have to be borne by the counsel who appeared on behalf of the petitioner before the Commercial Court. The counsel for the petitioner is correct in pointing out that the amendment was necessitated on account of the fact that the bank guarantee was invoked after the filing of the suit and therefore consequential amendment had to be carried out so as to claim the relief of recovery in respect of the amount invoked under the bank guarantee. No fault can be attributed to the petitioner in this regard so as to justify imposition of costs. No reasons or justifications have been given in the order dated 6th March 2021 for imposition of costs while allowing the application filed on behalf of the petitioner. CM(M) 957 2021 In the facts and circumstance of the case the impugned order passed by the Commercial Court is set aside. 11. The amended plaint be taken on record without payment of costs. 12. The present petition is disposed of in above terms. AMIT BANSAL J OCTOBER 28 2021 CM(M) 957 2021

Matriculation certificate no more enjoys primacy, the Court can determine of age of juvenile -High Court of Punjab and Haryana.

Matriculation certificate no more enjoys primacy, the Court can determine of age of juvenile -High Court of Punjab and Haryana. Section 94 of the Juvenile Justice Act 2015 deals with “Presumption and determination of the age” and states that matriculation certificate cannot be treated as primacy under the JJ Act the power lies with the board\committee to determine the age of the accused if he is a juvenile or not. The landmark judgement passed by the single bench of HON’BLE JUSTICE RAJBIR SEHRAWAT in GAJAB SINGH V STATE OF HARYANA (CRR-767-2018) dealt with the issue mentioned above. In this case the petitioner was accused of case under section 148, 149, 307, 506, 452 IPC and 25/54/59of the Arms Act and applied for a petition to be treated as juvenile claiming that he was below 18 years during at the time of commission and hence must be tried by the Juvenile Justice Board. He has applied for the same in Magistrate court and the application was rejected stating that his actual date of birth was of 1996 which states that he was a major during the commission of the crime aggrieved by this the petitioner moved to the additional sessions judge where the hon’ble court upheld the judgment of lower court and rejected the appeal, Petitioner then moved to the Hon’ble High Court by the way of this petition. The learned counsel for the petitioner mentioned that mentioned that as per Rule 12 of Juvenile Justice (Care and Protection) Act 2007, the primacy has to be given to the matriculation certificate, other documents such as date of birth can also be taken into account but only in case matric certificate is not available which is also laid down in several landmark judgements such as Siba Bisoyi v State of Odisha,(2017(4)R.C.R.(Criminal 409)).Therefore both the Courts below were faulty in not following these provisions and submitted that the petitioner should be tried as a juvenile. The learned counsel for the state contended that Juvenile Justice Act, 2015 has superseded the earlier provisions laid down in the Rules. According to which, the matriculation certificate no more enjoys the place of primacy, while determining the age of the accused. The date of birth certificate from the school and the matriculation certificate has been put at par; so far as their evidentiary value is concerned. The Hon’ble court analyzed the facts of the present case and the arguments of both the parties and opined that “in this particular case the petitioner has changed 4 schools before matriculation and have different date of birth in each of the school which itself shows the manipulation. It has been left to the Court to assess the age of the person brought before it. It is further submitted that sub-section (3) of Section 94 of the Act makes the age as determined by the Committee/Court/Board, as the true age of the person for the purpose of trial therefore the Rule 12 holds no power in the current case the lower courts were righteous in dismissing the appeal. Accordingly, present petition is dismissed.”

CRR 767 2018 In the High Court of Punjab and Haryana at Chandigarh CRR 767 2018 Date of Decision: February 20 2019 State of Haryana CORAM: HON BLE MR. JUSTICE RAJBIR SEHRAWAT Mr. Ankur Lal Advocate for the petitioner Mr. M.D. Sharma AAG Haryana Mr. Rituraj Singh Advocate for Mr. Gutam Dutt Advocate for the complainant Rajbir Sehrawat J.Rules 2007Rule 12 prescribed the procedure to be followed for determination of age where an accused claims to be juvenile. It is submitted that as per the provisions of the Rule 12 the primacy has to be given to the matriculation certificate if available. The other material i.e. the date of birth certificate from the school can also be relied upon but only if matriculation certificate is not available. If school certificate is not available only then the birth certificate issued by the Municipal Corporation or an authority is to be taken into consideration. Hence it is submitted by the counsel that since the first certificate i.e. matriculation certificate itself is available therefore the other certificates are excluded per se from the consideration for the purpose of determination of age of the petitioner and as per the date mentioned in the matriculation certificate the petitioner is a juvenile. Hence both the Courts below have committed a CRR 767 2018 grave illegality by not following the provisions of the above mentioned Rule while determining the age of the petitioner. It is further submitted by the counsel for the petitioner that in another case relying upon the same matriculation certificate petitioner is being tried as a juvenile. This fact was duly brought to the notice of the Courts below. However that has been brushed aside by the Courts below on the ground that the other relevant material was not available in those proceedings. In support of his argument the learned counsel for the petitioner has relied upon judgments of Supreme Court rendered in Siba Bisoyi vs. State of Odisha 2017(4) R.C.R Criminal) 409 Lok Nath Pandey vs. The State of Uttar Pradesh Another 2017 AIR3866 Ashwai Kumar Saxena vs. State of M.P. 2012(4) R.C.R. 391 Parag Bhati through Legal Guardian Mother Smt. Rajni Bhati vs. State of Uttar Pradesh and another 2016(2) R.C.R.1031 and Division Bench judgment of this Court rendered in Vikram Singh vs. State of Haryana 2017(3) R.C.R On the other hand learned counsel for the complainant submitted that the Juvenile JusticeAct 2015has superseded the earlier provisions laid down in the Rules. A new provision has been enacted in the Act itself. According to that provision the matriculation certificate no more enjoys the place of primacy while determining the age of the accused. The date of birth certificate from the school and the matriculation certificate have been put at par so far as their evidentiary value is concerned. It has been left to the Court to assess the age of the person brought before it. It is further submitted that sub sectionof Section 94 of the Act makes the age as CRR 767 2018 determined by the Committee Court Board as the true age of the person for the purpose of trial. It is further submitted that the date of birth of the petitioner is mentioned differently in all the schools. Even the matriculation certificate bears a date of birth of the petitioner which is based further upon a date of birth certificate which was given by the third previous school. However admission record in the said third previous school does not testify the date of birth as mentioned in the matriculation certificate Hence both the Courts below have rightly declined the application moved by the petitioner Learned State counsel has submitted that the investigating agency has produced all the relevant records before the Magistrate Board at the time of determination of the age of the petitioner. The undisputed and initial date of birth mentioned in the Govt. School record is 07.08.1996 Hence the same has rightly been taken by the Courts as the date of birth of the petitioner. The application of the petitioner has rightly been declined by the Courts below Having heard learned counsel for the parties and perusing the paper book this Court finds no substance in the arguments raised by the learned counsel for the petitioner. Although the Juvenile JusticeRules 2007 had given a place of primacy to the matriculation certificate over the other proofs of date of birth of the accused however that provision stands replaced by the Act 2015. A new provision governs the procedure for determination of the age of the accused now. The relevant provisions of the Act as contained in Section 94 is reproduced herein below: “94. Presumption and determination of age that the said person is a child the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36 as the case may be without waiting for further confirmation of the age In case the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not the Committee or the Board as the case may be shall undertake the process of age determination by seeking evidence by obtaining the date of birth certificate from the school or the matriculation or equivalent certificate from the concerned examination Board if available and in the absence thereof the birth certificate given by a corporation or a municipal authority or a panchayat and only in the absence ofandabove age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such The age recorded by the Committee or the Board to be the age of person so brought before it shall for the purpose or this Act be deemed to be the true age of that CRR 767 2018 A perusal of the provisions of the Act would show that under new provisions of law the primacy has been given to the assessment of the Board Court as to the age of the accused. This assessment can be done on physical appearance or even on the basis of the examination by other method like putting basic question to adjudge the age and understanding of the accused. In any case if there is any doubt in the mind of the Court Board then the provision prescribes that it is the birth certificate given by the school or the date of birth as mentioned in the matriculation certificate which shall be taken into consideration in the first instance. If these two certificates are not available then the further certificates as mentioned in the Section are to be taken into consideration. Hence the school certificate and the matriculation certificate have been put at par for the first consideration of the Court for adjudging the actual age of the accused. It is for the Court Board to take a final call on the date of birth of the accused in view of either of these documents or coupled with other attending circumstances which might have come on the record of the case By any means the place of primacy conceded to the matriculation certificate in the old Rules is no more available to it. The matriculation certificate no more enjoys that exclusive privilege. Although learned counsel for the petitioner has relied upon certain judgments of Supreme Court and one Division Bench judgment of this Court to emphasize the primacy of Matriculation Certificate in determination of age of the accused however this Court finds that all those judgments are distinguishable on the peculiar facts of those cases. In all those cases the offences committed before enforcement of the Act of 2015 were involved. So the scope of Section 94 of the new Act of 2015 was not even under consideration in either of those CRR 767 2018 cases. Hence those judgments cannot be taken as precedent for the cases involving offences committed after the enforcement of Act of 2015 As it has come on record of this case the petitioner was first admitted in Government Primary School in first standard on 02.08.2002. At that time the date of birth of the petitioner was mentioned as 07.08.1996 However name of the petitioner was struck off from that school because of his continuous absence. Thereafter the evidence brought on record shows that the petitioner had taken admission in Sai Senior Secondary School on 24.08.2008 again in the first class. There the date of birth mentioned in this school at the time of admission is 26.08.2003. This fact has even been deposed by CW4 the clerk of the school. The petitioner is stated to have studied in the school upto 8th class. Thereafter the petitioner claims to have taken admission at Gangotri Modern Senior Secondary School in 9th class on 10.07.2014 on the basis of school leaving certificate issued by Sai Senior Secondary School and at the time of admission in this school the date of birth mentioned is again changed to 23.07.1999. Counsel for the petitioner has tried to explain the disparity in date of birth recorded in Sai Senior Secondary School and Gangotri Modern Senior Secondary School by submitting that in the 8th pass certificate issued by Sai Senior Secondary School the date of birth mentioned is 23.07.1999 therefore the Gangotri Modern Senior Secondary School had recorded this date as the date of birth of the petitioner. However this itself creates a doubt. The petitioner is stated to have taken admission in Sai Senior Secondary School on 24.08.2008 in the first class. Therefore he would have passed 8th class only in the year 2016 whereas he has taken admission in 9th class in the year 2014. This itself shows the entire manipulation in the school record of Sai CRR 767 2018 Senior Secondary School done for the purpose of getting admission in 9th class in Gangotri Modern Senior Secondary School. It is clear that the date of birth was deliberately changed by Sai Senior Secondary School and the petitioner was given 8th pass certificate with a different date of birth against the record of that school itself by changing the date of birth from 26.8.2003 to 27.3.1999. Needless to say that next year again the petitioner had changed the school and took admission in Jai Bharat School from where he has stated to have passed the matriculation. Accordingly the date of birth mentioned in the matriculation certification of the petitioner is 23.07.1999 as was provided by Gangotri Modern Senior Secondary School. However since the date of birth which was provided by Sai Senior Secondary School and Gangotri Modern Senior Secondary School itself is shown to be manipulated therefore the matriculation certificate of the petitioner cannot be taken as a reliable proof of the date of birth of the petitioner for the purpose of the present trial. As is clear from the above the Courts below have taken the record of the Government Primary School as the base record to determine the date of birth of the petitioner to be 07.08.1996. It has also come on record that after leaving Govt. School the petitioner has given different dates of birth for getting admission in different schools in different classes which are found to not even commensurate with his age. Hence the Courts below have committed no illegality by giving more value to the date of birth recorded in the Government Primary School. This determination of age of the petitioner by the Courts below is perfectly in latter spirit of Section 94 of the Act of 2015. Needless to say that once the age is so determined by the Juvenile Court Board Committee as prescribed under the Act then the CRR 767 2018 same has been prescribed to be the deemed age of the accused for the purpose of trial. In the present case the age determined by Magistrate has even been upheld by the lower appellate court. Hence although there is no ground to differ with the Courts below however even if this court had any second opinion qua date of birth of the petitioner from the one determined by the Court below it would not substitute its own opinion in place of the satisfaction of the Court of the first instance which under the statute has been made the final adjudicator of the age of the accused Although learned counsel for the petitioner has also submitted that in the other trial the petitioner is being tried as a juvenile however nothing has come on record of this case to show that in that case his age was determined by the Board Court by following the procedure of inquiry as prescribed under the Act. In fact in that case the prosecution itself had taken the petitioner as a juvenile. It is even admitted that no inquiry was held. No evidence was led in that case to find out the actual age of the petitioner. Hence the fact that the petitioner is being tried as a juvenile in another case cannot be taken as a relevant factor for the determination of the age of the petitioner in the present case. In view of above no ground for interference is made out Accordingly present petition is dismissed February 20 2019 Whether speaking reasoned

Matters relating to arbitral awards do not attract any grounds for interference: The High Court of Delhi

In a separate suit filed in the Delhi High Court, under the purview of Arbitration and Conciliation Act 1996, the judges opined that in the matters of arbitral awards, there should not interference of the court. The above statement was opinionated in the case of Union of India & Anr. v. M/S Annavaram Concrete Pvt Ltd [FAO (OS) (COMM) 96/2020 & CM. APPL. 18980/2020] which was presided by a division bench, consisting of Justice Siddharth Mridul and Justice Anup Jairam Bhambani on August 31st 2021. The facts of the case are as follows. The Railway Board of India filed a petition with regards to challenging an arbitral award, in which the learned Sole Arbitrator had directed the Railways to refund to Annavaram the sum of Rs. 1,22,38,125/-, which had been deducted/withheld by the Railways as ‘liquidated damages’ imposed upon Annavaram for alleged breach of the terms and conditions of a tender. In the pursuance of the above, a letter of acceptance was issued by the Indian Railway Board to Annavaram for the supply of Pre-Stressed Concrete Sleepers. The counsel on the behalf of the Railways submitted that Annavaram hasn’t met the part of the agreement by not supplying even a single sleeper. Many cases were referred during the arbitral proceedings but the major emphasis was laid on the findings from PSA SICAL Terminals Pvt Ltd vs. Board of Trustees of V.O. Chidambranar [2021 SCC Online SC 508], Port Trust Tuticorin & Ors, MMTC Limited v. Vedanta Limited [(2019) 4 SCC 163], etc. The sole arbitrator, upon hearing both the sides, held the award in the favour of Annavaram: In view of the fact narrated above Rs. 1,22,38,125/- will be refunded to the claimant. The contract has to be closed as it where as basis (sic, as-is-where-is basis), so another claim of the claimant is also not to be considered. The above amount will be refunded to the claimant within three months of publication of the award.” The above arbitral award was challenged in the Delhi High Court wherein the single judge bench also upheld the decision of the sole arbitrator. In pursuance of the further challenge, the case moved to a division bench which also upheld the decision of the sole-arbitrator and held that “In view of the foregoing discussion, and being of the opinion that the view taken by the learned Sole Arbitrator, as upheld by the learned single Judge, is certainly a possible view based on facts in relation to the merits of the disputes, we find no ground to interfere in the arbitral award or the impugned judgment.” The court also held that “Annavaram shall be entitled to receive from the Railways the amount directed to be refunded in the arbitral award namely Rs. 1,22,38,125/- (Rupees One Crore Twenty-two Lacs, Thirty-eight Thousand, One Hundred and Twenty-five Only) along with simple interest at 6% per annum calculated from 08.05.2011 till the date of payment as per the impugned judgment, within 04 weeks of this judgment.”

IN THE HIGH COURT OF DELHI AT NEW DELHI FAO(OS)96 2020 & CM.APPL. 18980 2020 UNION OF INDIA AND ANR M S ANNAVARAM CONCRETE PVT LTD Respondent Date of decision: 31st August 2021 Appellants Through: Ms. Geetanjali Mohan Through: Mr. R.K. Sanghi Senior Advocate with Mr. Satjendar Kumar Advo and Mr. Sanghi Advocate. HON BLE MR. JUSTICE SIDDHARTH MRIDUL HON BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI J U D G M E N T ANUP JAIRAM BHAMBHANI J. The present appeal under section 13 of the Commercial Courts Act 2015 read with section 10 the Delhi High Court Act 1966 and section 37 of the Arbitration & Conciliation Act 1996 has been filed by the Union of India Ministry of Railways and North Eastern Railwaysimpugning judgment dated 27.02.2020 rendered by the learned single Judge of this court in O.M.P.No. 112 2020 whereby the learned single FAO(OS)96 2020 Judge has upheld arbitral award dated 08.02.2011made by the learned Sole Arbitrator in arbitral proceedings between the Railways and M s Annavaram Concrete Pvt Ltd. Hyderabad The Railways had filed a petition under section 34 of the A&C Act challenging arbitral award dated 08.02.2011 in which award the learned Sole Arbitrator had directed the Railways to refund to the sum of Rs. 1 22 38 125 which had been deducted withheld by the Railways as ‘liquidated damages’ imposed upon Annavaram for alleged breach of the terms and conditions of a tender bearing No. CS 160 2007 pursuant to which a Letter of Acceptance dated 15.09.2008was issued by the Railways to Annavaram for supply of 10000 Pre Stressed Concrete Sleepers ‘sleepers’) by 14.01.2009. By the impugned judgment the learned single Judge has upheld the arbitral award and has also awarded interest for the delay in payment of the awarded sum. Briefly disputes arose between the Railways and Annavaram in to alleged non performance and non compliance by Annavaram with the terms of the 1st LoA. As per the record after issuance of the 1st LoA vidé its letter dated 22.12.2008 Annavaram requested the Railways for an additional order representing that their capacity was to manufacture 25000 sleepers per month whereupon vidé a Second Letter of Acceptance dated 27.01.2009the Railways ordered an increased quantity of 150000 (COMM) 96 2020 thousand) sleepers to be supplied by Annavaram by 14.07.2009 which order was accepted by Annavaram. It is the Railways’ contention that Annavaram failed to supply even a single sleeper within the stipulated time nor did they obtain any extension of time for making such supply whereupon the contract comprised in the 1st LoA and 2nd LoA lapsed by efflux of time on 14.07.2009. Consequently it is the contention of the Railways that as per IRS Condition 0702 the Railways imposed liquidated damages to the tune of Rs. 1 22 38 125 upon Annavaram on 27.05.2009. It is further contended that on grounds of non performance on 08.04.2010 the Railways also terminated the contract with Annavaram. Disputes having arisen between the parties on 21.06.2010 the learned Sole Arbitrator came to be appointed and entered upon reference. Rs. 1 22 38 125 in favour of Annavaram and against the Railways which sum was directed to be refunded within 03 months from the date of the award. For completeness it may be mentioned that the Railways had also preferred a counter claim in the sum of Rs. 10 00 000 against Annavaram in the arbitral proceedings. It is the contention of the Railways that the 1st LoA was amended by the 2nd LoA whereby apart from increasing the quantity of sleepers FAO(OS)96 2020 to be supplied by Annavaram clause 1.0 and clause 1.1 were amended and a new clause 1.2 was inserted in the terms and conditions of the contract. Clauses 1.1 and 1.2 as amended inserted by way of the 2nd LoA read as under: “1.1 The supply against this order shall be completed by 1.2 On finalisation of the new tender the ordered quantity in CS 160 2007 shall be reduced to the number of sleepers manufactured till the date of issue of LoA for the new contract. If the rate accepted in the new tender is higher than the updated rate of CS 160 2007 on the date of issue of LoA and the manufactured quantity is less than the pro rata quantity then the supplier will have to recoup the short fall in the quantity on the same rate terms & conditions. This updat ed rate will be frozen on the date of issue of LoA for the shortfall quantity.” emphasis supplied) 7. Ms. Geetanjali Mohan learned counsel appearing on behalf of the Railways submits that the learned single Judge has erred in failing to appreciate that under clause 1.1 aforesaid Annavaram was obligated to complete the supply of the originally ordered 10000 sleepers by 14.07.2009 which it failed to do and thereby the Railways were entitled to impose liquidated damages in accordance with the contractual terms. Accordingly it is counsel’s contention that the impugned judgment as also the arbitral award require to be set aside. FAO(OS)96 2020 8. On the other hand Mr. R. K. Sanghi learned senior counsel appearing for Annavaram contends that by inserting clause 1.2 a new condition came into effect whereby the parties agreed that the quantity of sleepers ordered under the original tender stood “ ... reduced to the number of sleepers manufactured till the date of issue of LoA for the new contract ...” and it is contended that as a result there was no obligation on Annavaram to supply 10000 sleepers by 14.07.2009. Consequently it is argued the Railways were not justified in imposing any liquidated damages upon Annavaram. A perusal of the arbitral award indicates that though the award may have other infirmities insofar as the merits of the factual controversies between the parties are concerned what has weighed with the learned Sole Arbitrator is the following essential premise as set out in para 12 of the arbitral award: “Hence as per the acceptance letter pre condition 1.2 respondent has to cancel reduce remaining quantity of the tender CS 160. In this case the respondent has closed the tender as it where is basis sic as is where is) in place of terminating the contract.” 10. Upon a meaningful reading of the arbitral award based upon his understanding of the feasibility of performance of the contract and on the basis of the amendments carried out by the 2nd LoA to the terms and conditions of the 1st LoA the learned Sole Arbitrator concludes as “8… This is very important condition of letter of acceptance. The period of acceptance was extended from 14.01.2009 to 14.7.2009 FAO(OS)96 2020 i.e. approximately for 06 months. It should be noted that completion period for 10 000 sleepers was given 4 months and for the remaining 1 40 000 sleepers the completion period was given 6 months which is against the principle of natural justice. “11.... Production details number of sleepers per month produced by factory in CS 156 submitted by the claimant and respondent was also examined and it was found that average 5 000 Nos. sleepers per month can only be produced and maximum 9976 Nos. sleepers per month was produced in August 2006 by the old plant. There is no difference between the claimant and respondent regarding the old lay out and new lay out plan submitted. “17. I carefully examined the claim of both the parties and not convinced with the arguments of the respondents that they have rightly and legally imposed the LD of Rs. 1 22 38 125 as above stated. Counter claim submitted by respondents is not genuine. In counter claim salary of ten officers staff involved in defending the arbitration & other expenses etc. has been mentioned to the tune of Rs. 10 00 000so other claim of the claimant is also not to be considered. The above amount will be refunded to the claimant within three months of publication of the 11. The aforementioned factual inferences and conclusions drawn and the interpretation given to contractual clauses by the learned Sole Arbitrator have been accepted by the learned single Judge. In his assessment of the arbitral award the learned single Judge has opined as under: FAO(OS)96 2020 “13. Ms. Mohan is right in submitting that the reasoning offered by the arbitrator in the impugned award is somewhat sketchy. Howev er it is in my view adequate to discern the basis upon which the arbitrator has arrived at his conclusion. The operative portion of the award refers to the contract being closed on as is where is basis which is essentially the arbitrator s interpretation of clause 1.2 of the contract read with clause 1.2.1 of CS 162 2008 12. Furthermore considering the delay occasioned by reason of the challenge filed by the Railways to the arbitral award the learned single Judge has also awarded simple interest at 6% per annum from the time that the amount became refundable namely 03 months from 08.02.2011 i.e. from 08.05.2011 till the date of refund. FAO(OS)96 2020 13. Before proceeding further with the matter we remind ourselves of the limited scope and ambit of a challenge under sections 34 and 37 of the A&C Act which are pithily set out inter alia in the following recent decision in PSA SICAL Terminals Pvt Ltd vs. Board of Trustees of V.O. Chidambranar Port Trust Tuticorin & Ors. 1 in which the Hon ble Supreme Court reiterates its view in MMTC Limited v. Vedanta Limited 2 and holds as follows : “41. It will be relevant to refer to the following observations of this Court in the case of MMTC Limitedi.e. if the award is against the public policy of India. As per the legal position clarified through decisions of this Court prior to the amendments to the 1996 Act in 2015 a violation of Indian public policy in turn includes a violation of the fundamental policy of Indian law a violation of the interest of India conflict with justice or morality and the existence of patent illegality in the arbitral award. Additionally the concept of the “fundamental policy of Indian law” would cover compliance with statutes and judicial precedents adopting a judicial approach compliance with the principles of natural justice and Wednesbury 1 K.B. 223 reasonableness. Furthermore “patent illegality” itself has been held to mean contravention of the substantive law of India contravention of the 1996 Act and contravention of the terms of the contract. 1 2021 SCC Online SC 508 24 SCC 163 FAO(OS)96 2020 the findings of 12. It is only if one of these conditions is met that the Court may interfere with an arbitral award in terms of Section 34(2)(b)(ii) but such interference does not entail a review of the merits of the dispute and is limited to situations the arbitrator are arbitrary capricious or perverse or when the conscience of the Court is shocked or when the illegality is not trivial but goes to the root of the matter. An arbitral award may not be interfered with if the view taken by the arbitrator is a possible view based on facts. 3 SCC 49 :2 SCC 204]. Also see ONGC Ltd. v. Saw Pipes Ltd. ONGC Ltd. v. Saw Pipes Ltd. 5 SCC 705] Hindustan Zinc Ltd. v. Friends Coal Carbonisation Hindustan Zinc Ltd. v. Friends Coal Carbonisation 4 SCC 445] and McDermott International Inc. v. Burn Standard Co. Ltd. 11 SCC 181]) 13. It is relevant to note that after the 2015 Amendment to Section 34 the above position stands somewhat modified. Pursuant to the insertion of Explanation 1 to Section 34(2) the scope of contravention of Indian public policy has been modified to the extent that it now means fraud or corruption in the making of the award violation of Section 75 or Section 81 of the Act contravention of the fundamental policy of Indian law and conflict with the most basic notions of justice or morality. Additionally sub section has been inserted in Section 34 which provides that in case of domestic arbitrations violation of Indian public policy also includes patent illegality appearing on the face of the award. The proviso to the same states that an award shall not be set aside merely on the ground of an erroneous application of the law or by reappreciation of evidence. FAO(OS)96 2020 the court cannot undertake an 14. As far as interference with an order made under Section 34 as per Section 37 is concerned it cannot be disputed that such interference under Section 37 cannot travel beyond the restrictions laid down under Section 34. In other words assessment of the merits of the award and must only ascertain that the exercise of power by the court under Section 34 has not exceeded the scope of the provision. Thus it is evident that in case an arbitral award has been confirmed by the court under Section 34 and by the court in an appeal under Section 37 this Court must be extremely cautious and slow to disturb such concurrent findings.” 14. We are therefore conscious that so long as the view taken by an arbitrator which in this case has also been upheld by the learned single Judge is a possible view based on facts it is irrelevant whether this court would or would not have taken the same view on the merits of the matter and the arbitral award is required to be upheld. In view of the foregoing discussion and being of the opinion that the view taken by the learned Sole Arbitrator as upheld by the learned single Judge is certainly a possible view based on facts in relation to the merits of the disputes we find no ground to interfere in the arbitral award or the impugned judgment. 16. Accordingly we uphold impugned judgment dated 27.02.2020. 17. Consequently Annavaram shall be entitled to receive from the Railways the amount directed to be refunded in the arbitral award namely Rs. 1 22 38 125 along FAO(OS)96 2020 with simple interest at 6% per annum calculated from 08.05.2011 till the date of payment as per the impugned judgment within 04 weeks of this judgment. The amount deposited in court in these proceedings be paid over to Annavaram accordingly. The balance due if any from the Railways to Annavaram be paid within 04 weeks as 18. Subject to the above directions the appeal is dismissed 19. Other pending applications if any also stand disposed of. 20. There shall be no order as to costs. AUGUST 31 2021 SIDDHARTH MRIDUL J ANUP JAIRAM BHAMBHANI J FAO(OS)96 2020

Defect in the investigation by itself cannot be a ground for acquittal: Odisha High Court

“Investigation is not the solitary area for judicial scrutiny in a criminal trial.”, this remarkable stand was forwarded by Hon’ble Odisha High Court, in a two judge bench chaired by Hon’ble Justice Mr. S.K. Mishra & B.P. Routray, where the judgment was advanced in the Criminal Appeal case of Manguli Rout & ant V. State of Odisha, [CRA No. 247 of 1999]. Appellant No.1, Manguli Rout and appellant No.2 Khagi @Ekdasi Rout are two brothers. The deceased, namely, Subash and the informant, Jadunath (P.W.5) while going in a bicycle on 28.6.1994 at about 2.00 P.M. in the village road passing in front of the house of accused persons, they were assaulted by the appellants along with third accused namely, Jhari @ Jharana, the wife of appellant Manguli. It is alleged that Manguli came out suddenly, caught hold the handle of the bicycle and dragged the deceased, who was sitting on the back career of the bicycle. As the deceased fell down, accused Ekadasi being armed with kati came out from the house and started giving blows to the legs of the deceased with that Kati and at that time the accused Manguli also dealt axe blows on the deceased being supplied the axe by the 3rd accused, Jharana. Succumbing to all the injuries, victim died in the hospital. Both the appellants have been convicted for commission of offence under Section 302 of IPC and sentenced to undergo imprisonment for life by the learned 1st Addl. Sessions Judge, Cuttack in S.T. Case No. 221 of 1995, which is challenged before us in the present appeal. After examining all the submissions, arguments and evidences forwarded by the councils, the Hon’ble HC observed that, “Defect in the investigation by itself cannot be a ground for acquittal. Investigation is not the solitary area for judicial scrutiny in a criminal trial. Where there has been negligence on the part of the investigating agency or omissions, etc, which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses carefully to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the objects of finding out the truth. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation.”

HIGH COURT OF ORISSA: CUTTACK CRA No. 2499 From the order dated 30.09.1999 passed by Srhi R.S. Misra 1st Addl. Sessions Judge Cuttack in S.T.Case No. 2295. 1) Manguli Rout & 2) Khagi @ Ekadasi Rout …. Appellants State of Odisha …. Respondent Versus For Appellants Mr. D. Panda Advocate For Respondent Mr. J. Katikia Addl.Govt. Advocate JUDGMENT P R E S E N T: THE HONOURABLE SHRI JUSTICE S.K.MISHRA THE HONOURABLE SHRI JUSTICE B.P.ROUTRAY Date of Hearing: 21.12.2020 : Date of Judgment: 23.12.2020 B.P.ROUTRAY J. Both the appellants have been convicted for commission of offence under Section 302 of IPC and sentenced to undergo imprisonment for life by the learned 1st Addl. Sessions Judge Cuttack in S.T. Case No. 2295 which is challenged before us in the present appeal. The brief facts of the prosecution case are that appellant No.1 Manguli Rout and appellant No.2 Khagi Ekdasi Rout are two brothers. The deceased namely Subash and the informant Jadunathwhile going in a bicycle on 28.6.1994 at about 2.00 P.M. in the village road passing in front of the house of accused persons they were assaulted by the appellants along with third accused namely Jhari @ Jharana the wife of appellant Manguli. It is alleged that Manguli came out suddenly caught hold the handle of the bicycle and dragged the deceased who was sitting on the back career of the bicycle. As the deceased fell down accused Ekadasi being armed with kati came out from the house and started giving blows to the legs of the deceased with that Kati and at that time the accused Manguli also dealt axe blows on the deceased being supplied the axe by the 3rd accused Jharana. In the meantime hearing the shout the informant and some co villagers namely Anadi P.W.4) BrahmaniBisweswar and others reached at the spot. The deceased being sustained with severe bleeding injuries was shifted to Maniabandha P.H.C. and then was shifted to S.C.B. Medical College and Hospital Cuttack on the same day where he died in that night. As such an U.D. Case was registered at Mangalabag Police Station in connection with the death of the deceased and inquest was held by Mangalabag Police in that U.D. Case. In the meantime F.I.R. was also registered on 28.6.1994 at 3.15 P.M. in Badamba Police Station on the written report presented by P.W.5 Jadunath. The appellants pleaded ‘not guilty’ and denied their involvement in the occurrence. Learned trial court on the evidence of seven prosecution witnesses and seven documents marked as exhibits on behalf of the prosecution convicted the present appellants for the aforesaid offence of murder while acquitting the 3rd accused Jhari@Jharana. It is argued by Mr. Panda learned counsel on behalf of the appellants inter alia that there is material discrepancy in the evidence of P.W.5 in view of the statement of P.W.7that he presented the F.I.R. before him at 2.30 P.M. in the village and that he has not stated anything about the blows given on the chest and leg by Manguli. Besides there is omission of confrontation of material evidence to the appellants in their examination under Section 313 of Cr.P.C. On the other hand Mr. Katikia learned A.G.A supporting the conviction of the appellants has submitted that in view of clinching account of narration of occurrence by the informant and other eyewitnesses viz. P.Ws. 2 4 & 5 the appellants have been clearly implicated as the assailants of the murder of the deceased and as such their conviction by the learned trial court is justified. It is further submitted by him that the learned court below has wrongly disbelieved the evidence of P.W.6 who ought to have been believed in view of his clear endorsement made in the inquest report at column No.9. On the backdrop of the submissions advanced at the Bar we carefully perused the impugned judgment as well as the lower court record. As seen from the trial court judgment much reliance has been placed on the direct ocular evidence of P.W.5 to conclude the guilt on the appellants. A thorough perusal of the evidence of prosecution witnesses reveals that P.W.5 is the eyewitness to the whole occurrence while P.Ws.2 4 and 6 are stated to be the eyewitnesses to the occurrence in part who reached at the spot hearing the shout of P.W.5. However the learned court below disbelieved the evidence of P.W.6. Basing on such statements of P.Ws. 5 2 and 4 of eye witnessing the occurrence the learned trial Judge convicted these two appellants. Now to examine the evidence of P.W.5 it is seen that he has stated very specifically naming both the appellants as to their role of giving blows on the deceased to inflict grievous bleeding injuries. He has stated at para 3 of his evidence that since Subash fell down on the ground Ekadasi appellant No.2 started giving kati blows to his left leg and despite of his request not to assault the deceased he continued to assault by means of a kati. Further Manguli appellant no.1 being handed over an axe by Jharana dealt axe blows on the person of the deceased on his chest legs and neck. It is here argued on behalf of the appellants that Jharana being acquitted of the offence and in absence of production or seizure of the axe before the court below the role attributed to the appellant 1 Manguli in causing the blows on the deceased should be discarded. But in our view the learned counsel for the appellants is not correct in his submission to discard the evidence of P.W.5 on this aspect. It is true that Jharana has not been found guilty of the offence but her acquittal does not take away the presence of axe as a weapon of offence used by the appellant no.1 to cause assault on the deceased. The evidence of P.W.5 regarding specific overt act of Jharana in giving the axe has been disbelieved by the trial court as the same was not supported by the evidence of P.Ws.2 & 4. Of course the axe was not seized in course of investigation which is a lacuna on the part of the Investigating Officer. But such non seizure and non production of the axe as one of the weapons of offence has a little impact on prosecution case in view of the clear and clinching evidence of eyewitnesses so also the corroborative medical evidence depicting nature of injuries. Hon’ble Supreme Court in Criminal Appeals No. 1790 1791 of 2019 have observed at Para 22 that “there are also several lapses in the investigation of the case like non recovery of “empties” fired from the guns on the deceased non recovery of fire arms used by the respondents accused etc. It is well settled that any omission on the part of the Investigation Officer cannot go against the prosecution case. If the Investigating Officer has deliberately omitted to do what he ought to have done in the interest of justice it means that such acts or omissions of Investigating Officer should not be taken in favour of the accused. …..XX ….As pointed out earlier any act of commission omission of the Investigating Officer cannot go to the advantage of the accused. XX ….…” The submissions on behalf of the appellants that the evidence of P.Ws.2 and 4 of eye witnessing the occurrence is unreliable is not found convincing to us because perusal of their evidences are found corroborative to the statement of P.W.5 deposed in the Court about narration of their presence at a short distance from the spot of occurrence. Further P.W.2 is the mother of P.W.4 and she has confirmed in her cross examination that she was at a distance of 20 cubits from the spot being present in her Bari towards front side of the house of the appellant. What is pointed out by the learned counsel for the appellants to the effect that blows given by means of axe and kati respectively by both the appellants was an omission on the part of P.W.2 is not found correct in view of the explanation given by the I.O. at paragraph 6 of his cross examination which is to the extent that said P.W.2 though had not stated that axe and kati were used as weapons by Manguli and Ekadasi but she had stated that “Manguli O Ekadasi Subashaku Hanibare Lagichhanti”. Similarly the omissions pointed out on behalf of the appellants on the part of P.W.4 are not acceptable being confronted with the I.O. Having carefully examined the judgment rendered by my Learned Brother I concur with the conclusion reached by my learned Brother that the appeal should be dismissed. I would however like to rely on some judgments of the Hon’ble Supreme Court to support the concurrence. 14. In this case prosecution case has been criticized and the judgment of conviction and order of sentence has been impugned on the ground that one of the weapon of offences i.e. Axe used by Manguli was not seized by the investigating agency during the course of investigation. In the case of State of Rajasthan vrs. Kishore: reported in AIR 1996 SC 3035 the Hon’ble Supreme Court has held that irregularity or illegality by the investigating agency during the course of the investigation would not and does not cast doubt on the prosecution case nor trustworthy and reliable evidence can be cast aside to record acquittal on that account. This ratio was also quoted with approval later on in the case of Leela Ram Through Duli Chand Vrs. State Of Haryana And Anr. : reported in AIR 1999 SC 3717 wherein the Hon’ble Supreme Court held that it is now a well settled principle that any irregularity or even an illegality during investigation ought not to be treated as a ground to reject the prosecution case. 14.1. The Hon’ble Supreme Court in the case of State of Karnataka Vrs. K. Yarappa Reddy 8 SCC 715 considered that in case of genuineness of the Station House Diary or spuriousness of the same if the other evidence on scrutiny is found credible and acceptable should the court be influenced by the machinations demonstrated by Investigating Officer in conducting investigation or in preparing the records so unscrupulously. It can be a guiding principle that as investigation is not the solitary area for judicial scrutiny in a criminal trial the conclusion of the court in the case cannot be allowed to depend solely on the probity of investigation. It is well nigh settled that even if the investigation is illegal or even suspicious the rest of evidence must be scrutinized independently of the impact of it. Otherwise criminal trial will plummet to that level of the investigating officers ruling the roost. The Court must have predominance and pre in criminal trials over the action taken by investigating officers. Criminal justice should not be made the casually for the wrongs committed by the investigating officers in the case. In other words if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit investigating officer s suspicious role in the 14.2. In the case of Gulzari Lal Vrs. State of Haryana: reported in 4 SCC 583 the Hon’ble Supreme Court has held that “the question raised by the appellant on the issue that no blood stained earth was recovered from the place of crime is not relevant”. In the said judgment the Hon’ble Supreme Court further clarified that on this count the High Court has also noted the laxity on the part of the police and rightfully concluded that the conviction was valid in light of the statements made by the deceased and the witnesses. 14.3. In the case of Dhanaj Singh @ Shera and Others Vrs. State of Punjab: reported in AIR 2004 SC 1920 the Hon’ble Supreme Court held that “in the case of a defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective”. 14.4. In the case of C. Muniapan and Others Vrs. State of Tamil Nadu: reported in 2010SCC 567 it has also been discussed by the Hon’ble Supreme Court that "there may be highly defective investigation in a case. However it is to be examined as to whether there is any lapse by the I.O. and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation the faith and confidence of the people the criminal administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions etc. which resulted in defective investigation there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses carefully to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of 15. Defect in the investigation by itself cannot be a ground for acquittal. Investigation is not the solitary area for judicial scrutiny in a criminal trial. Where there has been negligence on the part of the investigating agency or omissions etc which resulted in defective investigation there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses carefully to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the objects of finding out the truth. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation. There may be highly defective investigation in a case. However it is to be examined as to whether there is any lapse by the Investigating Officer and whether due to such lapse any benefit should be given to the accused. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation the faith and confidence of the people in the criminal justice administration would be eroded. In this context judgments passed by the Hon’ble Supreme Court in the cases of Chandrakant Luxman vrs. State of Maharashtra: reported in 3 SCC 626 K. Yarappa Reddy Allarakha K. Mansuri vrs. State of Gujarat: reported in 3 SCC 57 and C. Muniapan and Othersare relied upon. In that view of the matter determination of guilt is an absolute domain of the court having jurisdiction to try the criminal cases. In view of the settled position of law relating to faulty investigation we are of the opinion that in view of the clear cogent and unimpeachable nature of evidence in the shape of narration of eye witnesses the machinations demonstrated by the investigating officer in conducting the investigation would not result in acquittal of the appellant. I therefore concur with the judgment rendered by my learned Brother. S.K.Mishra J. …... .. Orissa High Court Cuttack The 23rd December 2020 CRB

Students must be duly notified about the pre-ponement of exams: Delhi High Court

The students missing the examination due to pre-ponement who were not intimated by email, SMS or through any other mode, shall be eligible to appear in the exams held afterwards. This proclamation was made by the Delhi High Court presided by J. Prateek Jalan in the case of Vipin vs University of Delhi & others. [W.P.(C) 3049/2020 & CM APPLs. 10616, 29168/2020]. The petitioner enrolled for the LL.M. course in 2014. The duration of the course was three years (6 terms). Under the University’s rules and regulations, all the papers for the LL.M. course had to be cleared within six years. He was unable to appear in this paper in the regular examination of December, 2014 or subsequently in December, 2015. He did appear in the said paper in December 2016, December 2017 and December 2018, but was unsuccessful in the said paper. In this revised datesheet, the date of the Intellectual and Industrial Property Law was advanced to 16.12.2019. It was undisputed that the revised datesheet was not communicated to the candidates by any personal means of communication but only uploaded on the website of the University. As far as the examination of December, 2020 is concerned, the petitioner was not eligible to appear for the same in view of the fact that the maximum span period of six years from the date of his admission had lapsed. The Division Bench observed, “It appears that the examination of the aforesaid paper was initially fixed on 28th December, 2019 and the appellant was to appear in the said examination, being his last remaining attempt to complete the said course. It appears from the facts of the case that respondent University pre-poned the date of the examination to 16th December, 2019. However, the intimation about the said pre-ponement was not given to the appellant either by email, SMS or through any other mode.”  The bench further observed, “This last attempt was missed by the appellant because of the pre-ponement of the date of examination by the respondent University for which neither any email, nor any SMS, nor any personal communication, was sent to him. We, therefore, allow this appellant to appear in the examination.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 26th February 2021 W.P.(C) 3049 2020 & CM APPLs. 10616 29168 2020 Petitioner Through: Mr. Abir Phukan Mr. Surya and Mr. Ashkrit Tiwari Advocates. UNIVERSITY OF DELHI AND ORS Through: Mr. Mohinder Respondents JS Rupal HON’BLE MR. JUSTICE PRATEEK JALAN PRATEEK JALAN J.The proceedings in the matter have been conducted through video conferencing. The petitioner is pursuing an LL.M. course from University of Delhi paper in December 2020. At the outset it is recorded that learned counsel for the parties have no objection to the petition being heard by this bench although I was a member of the Division Bench which heard the petitioner’s appeal against an interim order passed in this petition. W.P.(C) 3049 2020 The petitioner enrolled for the LL.M. course in 2014. The duration of the course was three years shows that it was entitled “Revised & Final Date sheet for LL.M LL.M 2 3 Year However by a further notification dated 27.11.2019 the University declared another “Revised & Final Date sheet for LL.M LL.M 2 3 Year Courses”. In this revised date sheet the date of the Intellectual and Industrial Property Law I Paper W.P.(C) 3049 2020 was advanced to 16.12.2019. It is undisputed that the revised date sheet was not communicated to the candidates by any personal means of communication but only uploaded on the website of the University. In these circumstances the petitioner did not appear for the examination in December 2019. As far as the examination of December 2020 is concerned the petitioner was not eligible to appear for the same in view of the fact that the maximum span period of six years from the date of his admission had lapsed. The petitioner approached this Court by way of the present writ petition seeking a further opportunity to sit for the examination in the aforesaid circumstances. He also sought interim relief in the writ petition which was originally declined by orders dated 12.11.2020 and 26.11.2020. Against the aforesaid orders the petitioner approached the Division Bench in LPA No. 372 2020 which was disposed of by a judgment dated 09.12.2020 3049 2020 paper the appellant could not take the said examination which would have been his last attempt to complete the L.L.M. Course. This last attempt was missed by the appellant because of the pre ponement of the date of examination by the respondent University for which neither any e mail nor any SMS nor any personal communication was sent to him. 4. We therefore allow this appellant to appear in the examination of the paper Intellectual and Industrial Property Law I which is now scheduled to be held by the respondent University on 23rd December 2020. However this permission to appear in the said examination would be subject to the outcome of W.P.(C) 3059 2020 pending before the learned Single Judge and without prejudice to the rights and contentions of the parties.” 10. The petitioner has since taken the examination pursuant to the order of the Division Bench and the result is awaited. 11. Having heard Mr. Abir Phukan learned counsel for the petitioner and Mr. Mohinder J. S. Rupal learned counsel for the University I am of the view that the petitioner is entitled to the relief sought in this petition. The only reason which prevented the petitioner from availing of his last opportunity to take the examination was the University’s action in advancing the date of the examination that too without any personal communication to the candidates who had registered to appear in the examination. It is in these circumstances unreasonable to deny a candidate the opportunity to complete his degree and obtain the qualification only on the basis that the span W.P.(C) 3049 2020 period has lapsed. As stated above the consequence of a strict enforcement of the span period against the petitioner would be that he loses the opportunity to complete the LL.M. course for want of having cleared one paper. 12. Mr. Rupal submits that the imposition of a span period during which a candidate must clear all the papers in a particular course has been upheld by this Court. He states that Special Leave Petitions against the judgments of this Court have also been dismissed. However I do not consider it necessary to enter into this question in the facts of this case. Mr. Rupal accepts that the judgments do not deal with the peculiar situation faced in this case where the candidate sought to undertake his last attempt during the span period but was unable to do so due to the advancement of the examination by the University. In this situation it would be unduly harsh to deprive the student of an opportunity to complete the degree. 13. The University’s counter affidavit also raises the contention that the petitioner ought to have checked the University’s website for any updates. I do not consider it appropriate to put the onus entirely upon the petitioner to keep track of any revised date sheet that may be published by the University on its website. Further as mentioned hereinabove the date sheet upon which the petitioner relied was also described by the University as a “revised and final” date sheet leaving no occasion whatsoever to place such a burden upon the In the facts and circumstances of the present case therefore the petitioner has been able to justify the relief sought. At Mr. Rupal’s W.P.(C) 3049 2020 request it is made clear that this judgment does not foreclose the issue as to whether the same reasoning would be applicable to a different factual situation. 15. Since the petitioner has already appeared in the examination in December 2020 pursuant to the judgment of the Division Bench dated 09.12.2020 his entitlement to the degree will depend upon the result 16. For the reasons aforesaid the petition is allowed. The pending applications also stand disposed of. There will be no order as to costs. PRATEEK JALAN J FEBRUARY 26 2021 W.P.(C) 3049 2020

Any certain irregularities allegedly committed by any person, the fair licence of the person Will be made as a subject matter of an inquiry: High Court Of Uttarakhand

The illegalities committed by respondent No.7 in collusion with officials of the Supplies Department, this was held in the judgement passed by a single bench judge comprising HON’BLE JUSTICE SHARAD KUMAR SHARMA,  in the matter [WPMS No.1876 of 2021]. Respondent No.7, was a fair price shop licence holder of Village Kishanpur, Jamalpur, District Haridwar. The subject matter of an inquiry came into action because of the irregularities allegedly committed by respondent No.7. The petitioner contends that the proceedings, which are being contemplated against respondent No.7, are in contravention to the proceedings, as contemplated under the Government Order dated 14.08.2013. The petitioner has filed this writ of mandamus, with the following reliefs:- They also mentioned that, if the status of the petitioner is taken into consideration, it has been argued by the Counsel, that the petitioner is a resident of the Village, and is one of the poorest person, who can maintain a writ petition for a direction for holding a fair inquiry under the premonition as if the inquiry would not be concluded following the law. The writ petition looks into the nature of relief, which has been preferred, would not fall within the ambit of the writs of mandamus, and the circumstances under which, it could be issued, because there is no apparent breach of fundamental rights of the petitioner nor there is any infringement of his right, In fact, the entire action, which has been taken against the respondent No.7, is qua against the other respondents of the writ petition. The petitioner individually can be told that he has got no right as such to seek a writ of mandamus. The Hon’ble Court perused the facts,-“It thought that that the inquiry contemplated against respondent No.7, would is expected to be conducted by the Competent Authority following the law. Subject to the above observation, the writ petition stands dismissed accordingly”.

Office Notes reports orders or proceedings or directions and Registrar’s order with Signatures sl. No COURT’S OR JUDGES’S ORDERS WPMS No.18721 Hon’ble Sharad Kumar Sharma J. Mr. Bilal Ahmed Advocate for the petitioner. Mr. G.S. Negi Additional CSC for the State of Uttarakhand respondent Nos.1 to 6. Respondent No.7 in the present writ petition is a fair price shop licence holder of Village Kishanpur Jamalpur District Haridwar. As against certain irregularities allegedly committed by the respondent No.7 the fair price shop licence of the respondent No.7 was made a subject matter of an inquiry which is pending consideration before the Competent Authorities. proceedings which are being contemplated respondent No.7 proceedings contemplated under the Government Order dated 14.08.2013 because the change of category there should also have been a prior proposal of the “Gaon Sabha” in an open meeting which was not held in the instant case and as such the action ought to have been taken in terms of the said Government Order. The petitioner has filed this writ of mandamus with the following reliefs: “I. Issue a writ order or direction in the nature of mandamus commanding and directing the respondents to conduct a fair and impartial inquiry regarding the illegalities and irregularities being committed by respondent No.7 collusion with officials of the Supplies Department and accordingly suitable action be taken against the erring II. Issue a writ order or direction in the nature of mandamus commanding and complaint representation moved by petitioner and other villagers regarding illegalities committed by respondent No.7 in collusion with officials of the Supplies Department.” In fact if the status of the petitioner is taken into consideration it has been argued by the Counsel that the petitioner is a resident of the Village and is one of the most poorest person who can maintain a writ petition for a direction for holding a fair inquiry under the premonition as if the inquiry would not be concluded in accordance with law. Even if it is presumed for a moment that there is a slightest apprehension with the petitioner that inquiry would not be concluded in accordance with law. Though it is unfounded but still after the culmination of the inquiry the petitioner’s legal right if at all is affected by the decision which is taken by the Competent Authority is not prejudiced rather his right is not curtailed even to approach before any other superior forum against the action if any taken against the respondent No.7. The writ petition looking to the nature of relief which has been preferred would not fall within the ambit of the writs of mandamus and the circumstances under which it could be issued is no apparent breach of fundamental rights of the petitioner nor there is any infringement of his right which has been guaranteed to the petitioner under the Statutes. In fact the entire action which has been taken against the respondent No.7 is qua against the other respondents of the writ petition. The petitioner individually in person has got no right as such to seek for a writ of mandamus. Having said so and it goes without saying that the inquiry contemplated against the respondent No.7 would obviously is expected to be conducted by the Competent Authority in accordance with law. Subject to the above observation the writ petition stands dismissed accordingly. 16.09.2021

An information seeker cannot be allowed to expand the scope of his RTI enquiry at appeal stage.: Appellate Authority, SEBI.

The appellate authority under the RTI (Right to Information) Act of the Securities and Exchange Board of India comprising of Mr. Anand Baiwar adjudicated in the matter of Rushikesh Vijay Bhopatrao v CPIO, SEBI, Mumbai (Appeal No. 4284 of 2021) dealt with an issue in connection with Section 8 (1) (g) and 8 (1) (j) of the Right to Information Act, 2005. The appellant, Mr Rushikesh Vijay Bhopatrao had filed an application via RTI MIS Portal on the 8th of May, 2021 under the Right to Information Act, 2005. The respondent responded to the application by a letter on the 28th of May, 2021, filed by the appellate. After receiving a letter from the respondent on 28th of May, 2021 on his application, the appellate decided to file an appeal on the 28th of May, 2021. In his application on the 28th of May, 2021, the appellate was seeking the information about the list of all candidates who qualified Phase 2 of SEBI Grade A 2018, along with category wise marks distribution of Phase 2 and Phase 3 of all candidates who appeared in interviews. The appellate filed the appeal on the basis of him not being granted the information he was seeking. The appellate authority, Mr Anand Baiwar, made reference to the matter of Hon’ble CIC in the matter of Ajit Kumar vs. CPIO, Union Public Service Commission (order dated June 17, 2021). In the said matter, the Hon’ble CIC also relied on a judgment of the Hon’ble Supreme Court in the matter of Central Public Information Officer, Supreme Court of India Vs. Subhash Chandra Agarwal (order dated November 13, 2019 passed in Civil Appeal No. 10044 of 2010 with Civil Appeal No. 10045 of 2010 and Civil Appeal No. 2683 of 2010) wherein the import of “personal information” envisaged under Section 8(1)(j) of RTI Act has been exemplified in the context of earlier ratios laid down by the same Court in the matter(s) of Canara Bank Vs. C.S. Shyam in Civil Appeal No. 22 of 2009; Girish Ramchandra Deshpande vs. Central Information Commissioner & Ors., MANU/SC/0816/2012 : (2013) 1 SCC 212 and R.K. Jain vs. Union of India & Anr., MANU/SC/0384/2013 : (2013) 14 SCC 794. In the said matter, the Hon’ble Supreme held that “ 59. Reading of the aforesaid judicial precedents, in our opinion, would indicate that personal records, including name, address, physical, mental and psychological status, marks obtained, grades and answer sheets, are all treated as personal information. Similarly, professional records, including qualification, performance, evaluation reports, ACRs, disciplinary proceedings, etc. are all personal information. Medical records, treatment, choice of medicine, list of hospitals and doctors visited, findings recorded, including that of the family members, information relating to assets, liabilities, income tax returns, details of investments, lending and borrowing, etc. are personal information. Such personal information is entitled to protection from unwarranted invasion of privacy and conditional access is available when stipulation of larger public interest is satisfied. This list is indicative and not exhaustive...” In view of the same, the Appellate Authority found that the requested information is exempted from disclosure under section 8(1)(j) of the RTI Act and accordingly did not find any deficiency in the response.

Appeal No. 42821 BEFORE THE APPELLATE AUTHORITY Under the Right to Information Act 2005) SECURITIES AND EXCHANGE BOARD OF INDIA Appeal No. 42821 Rushikesh Vijay Bhopatrao CPIO SEBI Mumbai The appellant had filed an application dated May 08 2021under the Right to Information Act 2005and 8(1)(j) of the RTI Act as the same relates to personal information the disclosure of which has no relationship to any public activity or interest and may cause unwarranted invasion into the privacy of the individual and may also endanger the life or physical safety of the person(s). information was refused. 4. Ground of appeal The appellant has filed the appeal on the ground that the access to the requested I have perused the documents available on record and I find no infirmity in the denial of the information by the respondent under Section 8(1)(j) of the RTI Act as it relates to various third parties and disclosure of the same may cause unwarranted invasion of their privacy. Similar observations were made by the Hon’ble CIC in the matter of Ajit Kumar vs. CPIO Union Public Service Commissionwherein the import of "personal information" envisaged under Section 8(1)(j) of RTI Act has been exemplified in the context of earlier ratios laid down by the same Court in the matter(s) of Canara Bank Vs. C.S. Shyam in Civil Appeal No. 209 Girish Ramchandra Deshpande vs. Central Information Commissioner & Ors. MANU SC 0816 2012 :1 SCC 212 and R.K. Jain vs. Union of India & Anr. MANU SC 0384 2013 : 14 SCC 794. In the said matter the Hon’ble Supreme held that “ 59. Reading of the aforesaid judicial precedents in our opinion would indicate that personal records including name address physical mental and psychological status marks obtained grades and answer sheets are all treated as personal information. Similarly professional records including qualification performance evaluation reports ACRs disciplinary proceedings etc. are all personal information. Medical records treatment choice of medicine list of hospitals and doctors visited findings recorded including that of the family members information relating to assets liabilities income tax returns details of investments lending and borrowing etc. are personal information. Such personal information is entitled to protection from unwarranted invasion of privacy and conditional access is available when stipulation of larger public interest is satisfied. This list is indicative and not exhaustive..." In view of the same I find that the requested information is exempt from disclosure under section 8(1)(j) of the RTI Act. Accordingly I do not find any deficiency in the response. Further I note that the appellant in his appeal sought information regarding current detailed salary structure of SEBI employees an information seeker cannot be allowed to expand the scope of his RTI enquiry at appeal 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. ANAND BAIWAR APPELLATE AUTHORITY UNDER THE RTI ACT SECURITIES AND EXCHANGE BOARD OF INDIA Place: Mumbai Date: June 28 2021

Mere incorporation of additional corporate guarantee does not restructure NPA in adherence with RBI Prudential Norms: Calcutta High Court

The restructuring of non- performing assets (NPA) cannot be gone through with the mere assurance of additional corporate guarantee. The bench consisting of Sabyasachi Bhattacharya J. of the Calcutta High Court ruled that any minor modification does not alter the terms and conditions of the original sanction sufficient to obliterate the defaults already committed by the borrower in the matter of Metro Niketan Private Limited and another Vs. ICICI Bank Limited and others [W.P.O. No. 91 of 2021]. The set of facts stemmed from a sanction for credit facility in favour of the petitioner for an amount of Rs. 200 lakh by the respondent no.1-Bank. On November 22, 2018, there was a modification/renewal of the Sanction Letter dated June 8, 2010, which, inter alia, scaled down the existing limit of Rs.9.90 crore to a proposed limit of Rs.6.25 crore. Again On February 23, 2019, a letter was issued by the Bank for modification of the Sanction Letter dated November 22, 2018 for the limited purpose of including a corporate guarantee given by the Metro Niketan Private Limited. However, on September 19, 2020, the Bank issued to the petitioner and to its guaranteers and mortgagors/ corporate guarantors notices under Section 13(2) of the SARFAESI Act, 2002, to which the borrower issued an objection under Section 13(3A) on November 20, 2020. Finally, on January 13, 2021, a possession notice under Rule 8(1) of the Security Interest (Enforcement) Rules, 2020, read with Section 13(4) of the SARFAESI Act, was issued by the respondent Bank for taking symbolic possession of the secured property. In the present case, it was argued that the classification of the petitioners’ account as NPA ought to have been in accordance with the RBI Prudential Norms. Since such provisions were violated in classifying the loan account as NPA, the consequential action taken by the Bank under the 2002 Act were invalid The court was of the opinion that a post facto challenge to the genesis of the Bank’s actions before the writ court cannot, by itself, be a justification of the maintainability of the writ petition, after measures have already been taken under the 2002 Act. The court further asserted that the limited scope of exploration in the present writ petitions was hinged around the question whether the bank had authority to classify the loan account-in-question as NPA at the relevant juncture. As per the Master Circular of the RBI pertaining to Prudential Norms on Income Recognition, on a reading of the Clause 2.2 stipulates that an account should be treated as ‘out of order’ if the outstanding balance remains continuously in excess of the sanctioned limited/drawing power for 90 days. Clause 2.3 defines ‘overdue’ as any amount due to the Bank under any credit facility, if not paid on the due date fixed by the Bank. Hence, loan account of the borrower qualified for being classified as NPA on the date of such classification, which is February 24, 2019, in view of the payable amounts remaining overdue/out of order for over 90 days. Hence, there was no fault on the part of the ICICI Bank in classifying the account as NPA at that point of time.

In The High Court at Calcutta Constitutional Writ Jurisdiction Original Side The Hon’ble Justice Sabyasachi Bhattacharyya WPO No. 821 Mohan Motor Business Private Limited and another Vs. ICICI Bank Limited and another W.P.O. No. 921 Metro Niketan Private Limited and another Vs. ICICI Bank Limited and others : Mr. Avishek Guha Ms. Ruchika Mall Mr. Sarabjit Mukherjee Ms. Madhurima Das Mr. Rajarshi Dutta For the petitioners For the respondents Hearing concluded on Judgment on The Court: 1. A sanction was granted for credit facility in favour of the petitioner for an amount of Rs. 200 lakh by the respondent no.1 Bank. On November 22 2018 there was a modification renewal of the Sanction Letter dated June 8 2010 which inter alia scaled down the existing limit of Rs.9.90 crore to a proposed limit of Rs.6.25 crore. 2. On February 23 2019 a letter was issued by the Bank for modification of the Sanction Letter dated November 22 2018 for the limited purpose of including a corporate guarantee given by the Metro Niketan Private Limited. 3. On September 19 2020 the Bank issued to the petitioner and to its guaranteers and mortgagors corporate guarantors notices under Section 13(2) of the SARFAESI Act 2002 to which the borrower issued an objection under Section 13(3A) on November 20 2020. Reply was given by the Bank to the said objection on December 2 4. On January 13 2021 a possession notice under Rule 8(1) of the Security InterestRules 2020 read with Section 13(4) of the SARFAESI Act was issued by the respondent no.1 Bank for taking symbolic possession of the secured property. 5. On January 14 2021 the Bank issued a notice under Section 13(4) of the SARFAESI Act and on January 15 2021 the respondent no.1 Bank issued an e mail to the petitioners intimating that the loan account of the petitioners was then overdue for the past 91 days. Learned counsel appearing for the respondent Bank takes a preliminary objection as to maintainability of the writ petition against the actions taken by the Bank under Sections 13(2) and 13(4) of the SARFAESI Act in view of an equally efficacious alternative remedy being available under Section 17 of the said Act. In support of such contention counsel cites the following judgments : United Bank of India Vs. Satyawati Tondon & Ors. reported at8 SCC 110 Kanaiyalal Lalachand Sachdev & Ors. Vs. State of Maharashtra & Ors. reported at AIR 2011 SCW 1194 iii) Authorised Officer State Bank of Travancore & Anr. Vs. Mathew K. C. reported at3 SCC 85 iv) Unreported judgment passed by the Division Bench of this Hon’ble High Court in M.A.T. No.128 of 2019 delivered in the case of Bishnu Bikash Sarkar & Anr. Vs. ICICI Home Finance Company Limited & Ors. dated 6th February 2019 ICICI Bank Vs. Umakanta reported at13 SCC 497 vi) Unreported judgment delivered on 14.01.2021 by this Hon’ble Court in W.P.A. No.11360 of 2020 passed by Hon’ble Justice Hiranmoy Bhattacharya in Bansal Enterprises Vs. Bank of Baroda. The respondent Bank submits that the unreported judgment dated January 14 2021 passed by a co ordinate Bench in WPA 11360 of 2020 was challenged in MAT No.68 of 2021 No.2695 of 2021 which was dismissed by the Supreme Court by an order dated February 17 2021. It is further submitted on maintainability that the writ petition is premature insofar as the same challenges the notice under Section 13(2) of the SARFAESI Act. On such contention the Bank relies on D. Krishnan and others Vs. The Branch Manager The Federal Bank Limited & another reported at 2017 SCC OnLine Mad 24346 and M s. Sigma Generators Private Limited & another Vs. Oriental Bank of Commerce & others reported at 2014 SCC OnLine 7198. 10. While addressing the question of maintainability learned counsel appearing for the petitioners contends that the action of the Bank and its authorized officer in declaring the account of the petitioner as Non Performing Asset on February 24 2019 is the plinth of the challenge in the present writ petition on the ground that the same is contrary to the Master Circular issued by the Reserve Bank of India on July 1 2015 containing the Prudential Norms of Income Recognition and Asset Classification and Provisioning Pertaining to Advances. It is argued that the modification dated February 23 2019 amounted to a restructuring of the account in terms of the RBI Prudential Norms. 11. By placing reliance on Clause 12.1 of such Norms learned counsel for the petitioners contends that restructuring would normally involve modification of terms of advances securities which would generally include things repayment period repayable amount or the amount of instalments rate of interestunder Annexure 5 of the Prudential Norms containing Key Concepts it is reiterated by the petitioners that restructuring as contemplated therein is in consonance with the Clause 12.1 of the said Norms. 13. Learned counsel for the petitioners contends that once the loan sanctioned was restructured on February 23 2019 upon taking additional security from the Metro Niketan Private Limited both as collateral and corporate guarantee the question of the account being classified as NPA on the very next date that is February 24 2019 could not arise. It is further contended that the modification letter dated February 23 2019 was accepted and acted upon by the petitioners but the Bank acted without authority in classifying the loan account of the petitioner as NPA which is the very basis of the measures taken under the SARFAESI Act de hors the RBI Prudential It is argued that a collateral remedy cannot be an absolute bar to a writ petition if the acts of the authority is questioned on the ground of lack of jurisdiction. In this regard the petitioners rely upon the following decisions: i) Whirlpool Corporation Vs. Registrar of Trade Marks Mumbai & ii) M s. Godrej Sara Lee Ltd. Vs. Asst. Commissioner & Anr. Ors. reported at8 SCC 1 reported at14 SCC 338. 15. Section 2(1)(o) of the SARFAESI Act 2002 defines "Non Performing Asset" as an asset or an account of a borrower which has been classified by a Bank or a financial institution as sub standard doubtful or loss asset. In the event a bank is not administered or regulated by any authority or body established constituted or appointed by any law for the time being in force the bank would be governed by the directions or guidelines relating to asset classification issued by the RBI. In the present case it is argued the classification of the petitioners account as NPA ought to have been in accordance with the RBI Prudential Norms. Since such provisions were violated in classifying the loan account as NPA the consequential action taken by the Bank under the 2002 Act were invalid. In this context the petitioners rely on Sravan Dall Mill P. Limited Vs. Central Bank of India reported at AIR 2010 AP 35. 18. On merits it is contended by the petitioners that the Bank in its reply dated December 2 2020 admitted that the previous notice under Section 13(2) of the 2002 Act dated July 20 2020 was recalled by the Bank on September 10 2020 and a fresh notice under the said provision was issued on September 19 2020. In paragraph No.4 of such reply the Bank accepted that the modification letter dated February 23 2019 was acted upon but failed to give any reason as to why how the petitioners account was classified as NPA on the very next date that is February 24 2019. The reply of the Bank being not in compliance with Section 13(3A) of the 2002 Act the classification of the account of the petitioners borrower as NPA can be challenged. In support of such proposition learned counsel for the petitioners places reliance on East India Laminates Ltd. Vs. Union Bank of India. The account of petitioner no.1 after being restructured on February 23 2019 did not remain NPA for a period of less than or equal to 12 months or did not remain in the sub standard category for a period of 12 months. As such the petitioners account was also not a loss asset since the facility was secured additionally by collateral and corporate guarantee provided by the Metro Niketan Private Limited. Thus the petitioners account could not be classified either as sub standard doubtful or loss asset as envisaged in Clause 4 of the RBI Prudential Norms. 19. The petitioners further argue that a proper interpretation of the RBI Prudential Norms shows that the decision of classifying an asset as NPA should be based on the record of recovery. An account having temporary deficiencies cannot be so classified. The guidelines for such classification are enumerated in Clause 4.2.4 of the said Norms. Clause 4.2.5 of the said Master Circular it is argued mandates that where the arrears of interest and principle are cleared by the borrower in the case of loan accounts classified as NPAs the accounts should not be treated as non performing and may be classified as standard account thereafter. 20. That apart the Bank did not give any notice to the petitioners or Metro Niketan Private Limited prior to classifying the account as an NPA and or disclose any reason for overruling the objection of the petitioner in its reply. In this context the petitioners place reliance on Amar Alloys Pvt. Limited Vs. State Bank of India reported at 2019 SCC OnLine P&H 571. 21. Thus it is argued the entire actions of the Bank and its Authorized Officer under Sections 13(2) and 13(4) of the SARFAESI Act 2002 having emanated from the classification of the petitioners account as NPA in violation of the RBI Prudential Norms were without competence or authority. In reply on merits learned counsel for the respondent Bank submits that the initial sanction dated June 8 2010 was renewed from time to time lastly on November 22 2018. While renewing such sanction the existing limit of the borrower for an exposure of Rs.9.90 crore was reduced on request of the petitioners to Rs.6.25 crore such renewal being valid up to November 21 2019. The loan account of the borrower thus went under stress. Despite several reminders and opportunities to the petitioners intimating the status of the account and to repay the dues from time to time no steps were taken by the petitioners in that regard. The corporate guarantor being Metro Niketan Private Limited stepped in by offering collateral security to secure the loan that was availed by the borrower. Although the respondent Bank accepted such collateral security there was no change or modification of any of the terms and conditions of the Sanction Letter dated November 22 2018 in the modification letter dated February 23 2019. 23. The Bank submits that the attempt of the petitioner to take shelter under the relevant provisions of the RBI Prudential Norms dated July 1 2015 on the basis that the loan was restructured on February 23 2019 is contrary to the facts of the case. The same would be revealed by a mere comparison between the Sanction Letter dated November 22 2018 and the modification letter dated February 23 2019. Since there was no restructuring of the credit facility apart from merely adding collateral security the Prudential Norms are not attracted at 24. The classification of the loan account as NPA on February 24 2019 was valid in law since the loan account of the borrower petitioners was already under stress and there was non payment in the loan account for a period of 90 days in consequence whereof as per the RBI Guidelines the respondent Bank was well within its authority to declare the account as NPA. 25. The Bank argues that not only is the writ petition premature in respect of the notice under Section 13(2) of the 2002 Act which is merely a demand notice the writ petitioners also have a remedy under Section 17(1) of the 2002 Act to challenge the actions taken by the respondent Bank under Section 13(4) as well as Section 13(2) of the 2002 Act before the Debts Recovery Tribunal. In the guise of challenging the classification of its loan account as NPA the respondent Bank argues the petitioners have tried to invoke the writ jurisdiction of this Court. However as per the various judgments as cited by the Bank while arguing the maintainability point the appropriate remedy of the writ petitioner lay under Section 17(1) of the 2002 Act. 27. On the above grounds learned counsel for the respondent no.1 Bank contends the writ petition ought to be dismissed. 28. Heard learned counsel for both sides and perused the written notes of arguments filed by the contesting parties as well as the materials on record. Petitioner No.1 in WPO No.89 of 2021 and petitioner No.1 in WPO No.91 of 2021 Metro Niketan Private Limited) are the borrower and corporate guarantor respectively in respect of the credit facility taken from the respondent No.1 in both the mattersof the SARFAESI Act 2002 to Mohan Motors as well as Metro Niketan and other 32. An objection was filed by the borrower under Section 13(3 A) of the 2002 Act in response to the notice under Section 13(2). The Bank gave a reply thereto on December 2 2020. 33. On January 13 2021 a possession notice was issued under Rule 8(1) of the Security InterestRules 2020 read with Section 13(4) of the SARFAESI Act 2002 by the ICICI Bank for taking symbolic possession of the secured property. On January 14 2021 the Bank issued a formal notice under Section 13(4) of the 2002 Act. The ICICI Bank on January 15 2021 issued an e mail to the petitioners intimating that the loan account in question was overdue for the past 91 days. 34. Being aggrieved by the classification of the loan account as NPA on February 24 2019 and the consequential notice under Section 13 sub sections and of the 2002 Act the present writ petitions have been preferred. 35. A preliminary objection as to maintainability of the writ petition is taken by the respondent Bank primarily on the issue that there is an equally efficacious alternative remedy availabe in the form of Section 17 of the 2002 Act. Hence relying on several judgments of the Supreme Court as well as two unreported judgments of this court the Bank submits that generally the courts adopt a self imposed restriction by refusing to interfere where an equally efficacious alternative remedy is available to the petitioners. 36. By citing certain judgments in reply the writ petitioners pointed out that such interference can take place in case of patent jurisdictional errors and under certain exceptional circumstances. 37. The crux of the principles laid down in the cited judgments clearly indicates that interference under Article 226 of the Constitution is only in exceptional cases. Arbitrary exercise of jurisdiction patent bias violation of Fundamental Rights and Natural Justice as well as gross abuse of the process of law are some of such grounds on which High Courts can interfere despite availability of an alternative remedy. In the present case since the petitioners have specifically alleged lack of authority and arbitrariness on the part of the Bank in classifying the loan account as NPA the writ petitioners cannot be shut out at the outset provided they substantiate such allegations. 39. Although the argument of the petitioners that such classification as NPA was the genesis of subsequent proceedings under the SARFAESI Act and a challenge against such classification is permissible in writ jurisdiction is impressive at the first blush the reliefs claimed in the writ petitions if granted would tantamount to interference with the notice and measures taken by the ICICI Bank respectively under sub sectionsandof Section 13 of the SARFAESI Act. The genesis of such notices or any illegal therein can very well comprise grounds of effective challenges against both such actions of the Bank which leaves ample scope for alternative remedy to the writ petitioners. 40. Hence a post facto challenge to the genesis of the Bank’s actions before the writ court cannot by itself be a justification of the maintainability of the writ petition after measures have already been taken under the 2002 Act. 41. As such the limited scope of exploration in the present writ petitions hinges around the question whether the bank had authority to classify the loan account in question as NPA at the relevant juncture. 42. Although the petitioners have annexed the Master Circular dated July 1 2015 issued by the Reserve Bank of India pertaining to Prudential Norms on Income Recognition Asset Classification and Provisioning pertaining to Advances the first few clauses thereof being Clause No.1 to 3.4 of the Master Circular are conspicuous by their absence in the Annexureshas been described as a loan or an advance where interest and or instalment of principal remains overdue for a period of more than 90 days in respect of a term loan and the account remains ‘out of order’ in respect of an overdraft cash credit. 44. Clause 2.2 stipulates that an account should be treated as ‘out of order’ if the outstanding balance remains continuously in excess of the sanctioned limited drawing power for 90 days. Clause 2.3 defines ‘overdue’ as any amount due to the Bank under any credit facility if not paid on the due date fixed by the Bank. 45. Hence in the present case the loan account of the borrower qualified for being classified as NPA on the date of such classification that is February 24 2019 in view of the payable amounts remaining overdue out of order for over 90 days. Hence there was no fault on the part of the ICICI Bank in classifying the account as NPA at that point of time. 46. Section 13(2) of the 2002 Act provides that where any borrower which is under a liability to a secured creditor under a security agreement makes any default in repayment of secured debt or any instalment thereof and its account in respect of such date is classified by the secured creditor as non performing asset then the secured creditor may require the borrower by notice in writing to discharge in full its liabilities to the secured creditor within 60 days from the date of notice failing which the secured creditor shall be entitled to exercise all or any of the rights conferred on it under Section 13(4) subject to the exceptions provided therein. Section 13(4) is a consequence of such failure and the measures contemplated thereunder automatically follow upon the failure of the borrower to comply with the requirements of Section 13(2). 47. Section 13(3 A) of the SARFAESI Act provides an opportunity of representation and raising objection to the borrower. In the present case the writ petitioners subjected themselves to the provisions of the SARFAESI Act by giving a representation objection to the notice under Section 13(2) which was duly considered by the respondent No.1 Bank. 48. Thus it is evident that there was no arbitrariness or material irregularity in the Bank’s actions. 49. The next question which crops up is whether the writ petitioners were entitled to the benefit as contemplated in Clause 17.2.2 of the Prudential Norms of 2015 which provides that the non performing assets upon restructuring would continue to have the same asset classification as prior to restructuring and slip into further lower asset classification categories as per extant asset classification norms with reference to the pre restructuring repayment schedule. Reliance is placed by the writ petitioners on Clause 17.1 of the Norms pertaining to eligible criteria for restructuring of advances as well as the Key concepts used in the guidelines as defined in Annexure 5 as well as Clause 12.1 of the Norms to argue that restructuring would normally involve modification of terms of the advances securities which would include among others alteration period repayable amounts the amount of instalment rate of interest due to reasons other than competitive reasons). Any change in repayment schedule of a loan would render it a restructured account. 50. Clause 17.1.1 provides that Banks may restructure the accounts classified under ‘standard’ ‘sub standard’ and ‘doubtful’ categories. Subsequent clauses of the Prudential Norms 2015 also provide for the situations in which such restructuring is undertaken. 51. However the petitioners conveniently overlook the provisions of Clauses 17.2.3 and 17.2.4 of the Norms which provide that standard accounts classified as NPA and NPA accounts retained in the same category on restructuring by the Bank should be upgraded only when all the outstanding loan facilities in the account perform satisfactorily during the ‘specified period’ that is principal and interest on all facilities in the account are serviced as per terms of payment during that period. It is further provided that in case satisfactory performance after the specified period is not evidenced the asset classification of the restructured account would be governed as per the applicable prudential norms with reference to the pre restructuring payment 53. The reference to standard sub standard and doubtful categories is entirely irrelevant for the purpose of considering the validity of the classification of the loan account as NPA. 54. That apart the modification letter issued on February 23 2019 merely incorporated an additional corporate guarantee given by the Metro Niketan without altering any of the terms of the original sanction as modified on November 22 2018. 55. On February 24 2019 irrespective and independent of the modification letter the account of the borrower qualified for being classified as a non performing asset which was duly declared by the ICICI on that date. 56. Mere incorporation of additional corporate guarantee by the Metro Niketan ipso facto does not come within the purview of the ‘restructuring’ as contemplated in the Prudential Norms under reference and or in commercial jurisprudence in general. 57. Such minor modification did not alter the terms and conditions of the original sanction sufficient to obliterate the defaults already committed by the borrower. 58. Hence I find no irregularity and or arbitrariness in declaration of the borrower’s loan account as NPA on the relevant date. 59. Reliance by the petitioners on Clause 4.2.4 which relates to temporary deficiencies which would not qualify an asset to be classified as NPA is entirely misplaced. 60. Clause 4 of the Guidelines explains the categories of NPAs and defines sub standard doubtful and loss assets. Such classification occurs only upon the asset having remained non performing over a period. However the broad guidelines for the classification of assets as NPA is on a much wider scale than temporary deficiencies as defined in Clause 4.2.4. Clause 4.2.4 is a miniscule exception of temporary deficiencies which has nothing to do with the present case where several reminders were given to the borrower and guarantors for clearing off the bank’s dues which were consistently ignored by the writ petitioners. 61. The subsequent notice under Section 13(2) of the SARFAESI Act and measures taken under Section 13(4) thereof were only necessary corollaries consequential upon such classification as NPA within the contemplation of Section 13 of the 2002 Act. Hence there is no substantial basis for the challenge in the present writ petitions to the classification of the loan account as NPA. 62. The present writ petitions are ex facie attempts to bypass the regular remedy available under Section 17 of the 2002 Act in the garb of a challenge to the root of such action post facto measures being taken under Section 13. Hence let alone making out any exceptional case 18 of arbitrariness miscarriage of justice or violation of any Fundamental Right or principle of Natural Justice the actions taken by the Bank from classifying the loan account as NPA to taking measures under Sections 13(2) and 13(4) of the 2002 Act were all above board and well within the authority of the Bank. Hence there is no merit in the present writ petitions. 63. Accordingly WPO No.89 of 2021 and WPO No.91 of 2021 are dismissed on contest. The petitioners in each of the said writ petitions shall pay costs of Rs.50 000 each to the ICICI Bank Limited being respondent No.1 in both the matters within 30 days from date for the unnecessary harassment caused to respondent No.1 and to deprecate the mala fide attempt to subvert and delay the process of law in an oblique manner. 64. Urgent certified copies of this order shall be supplied to the parties applying for the same upon due compliance of all requisite Sabyasachi Bhattacharyya J. )

No interference by High Court in case of incontrovertible findings of fact by the caste scrutiny committee: Bombay High Court

Affinity test may not be regarded as a litmus test for establishing the link of the applicant with a particular Caste. Thus, the affinity test may be used to corroborate the documentary evidence and should not be the sole criteria to reject a claim. This remarkable judgment was recently passed by Bombay High Court in the matter of SHRI VIJAYSING AJABSING PATIL V RESEARCH OFFICER, DISTRICT. CASTE VERIFICATION COMMITTEE [WRIT PETITION (ST.) NO. 7238 OF 2021] by Honourable Justice K.K.Tated and Justice Abhay Ahuja. Through this Writ Petition, the Petitioner is seeking quashing and setting aside of the order passed by District Caste Verification Committee, Thane invalidating the caste claim of the Petitioner as ‘Rajput Bhamta’. It is the claim of the Petitioner that he belongs to Hindu Rajput Bhamta caste which falls in V.J. category and has therefore submitted proposal for caste verification after which the caste claim of the Petitioner was subjected to inquiry by the Vigilance Cell. Through the Vigilance report it was submitted the petitioner’s caste appeared to be ‘Rajput Bhamta’ and hence the Petitioner was should file a fresh proposal and later received a notice issued by Additional Joint Registrar of Co-operative Societies, Konkan Division, Navi Mumbai that he was called for hearing. Petitioner participated in the said hearing and a request to submit caste validity certificate within a period of 15 days or else suitable action would be initiated against the Petitioner. After submission of documents, scrutiny of documents was directed and issued notice to submit written explanation as the documents were insufficient and inconclusive to prove caste claim. Petitioner submitted that the caste scrutiny committee has noted that the said documents have been verified with the original copy and found to be true and therefore there is no reason why the caste scrutiny committee has not considered the same to grant the caste claim of Petitioner. The Court further observed that “From the Genealogy set out above, Petitioner is the real brother of Suryasing and his father is Ajabsing and grandfather is Waman. His cousin uncle is Narendrasing who is the son of Prakash comes from the lineage of cousin great grandfather Daulat. Thus, it is evident that the caste scrutiny committee has considered the documents that have been submitted by the Petitioner. Petitioner’s real brother Suryasing Ajabsing Patil in respect of the caste claim of ‘Rajput Bhamta’ The Court also added that “Petitioner’s grandfather Waman Gulaba Khanderao, the caste has been mentioned as ‘Rajput’. The original record of village form produced by the Tahasildar office before the committee, at that time it was noticed that the caste of the grandfather was mentioned as ‘Rajput’ and not as ‘Rajput Bhamta’.” The Court relied on Supreme Court in the case of Madhuri Patil V/s. Additional Commissioner, Tribal Department AIR 1995 SC (94) and observed that, “It is obvious that Judicial Magistrate has no jurisdiction to issue Cast certificate and it is a void certificate.” And also added that “When the Vigilance Squad made enquiry in respect of the said School Leaving Certificate, they noticed that the caste mentioned in the said document is only ‘Rajput’ and not Rajput Bhamta. The entries made in the school and Revenue proofs of the grandfather, submitted by the Applicant along with the Application are from the pre-independence period and the same is very important entries.” Thus, the HC stated that “No fault can be found with the findings of the Scrutiny Committee. Based on clear evidence as recorded in the Impugned Order, we find that Form No.14 in the name of the grandfather as well as the School Leaving Certificates of grand-father refer to the caste as “Rajput” and not “Rajput Bhamta”. Even the father’s School Leaving Certificate mentions the caste as ‘Rajput’ and not ‘Rajput Bhamta’. Real brother Suryasingh’s caste certificate has been invalidated earlier. With respect of the Petitioner’s affinity test, the committee has clearly found that no similarity is seen as per the affinity test given by the Petitioner during the course of the hearing on 10th March, 2021 and the same has not been held to be valid for the Petitioner’s claim to ‘Rajput Bhamta’ caste.”

on 08 04 2021 on 13 04 Judgment WPST 7238 21 1.docIN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTIONWRIT PETITIONNO. 7238 OF 2021Shri Vijaysing Ajabsing Patil ] Age 39 years Occ. Service ]R o. At Barrack No. 114 above ]Shani Mandir Road Ulhasnagar No.1 ]Dist. Thane 421 001. ]…PetitionerV s. 1. Research Officer Member Secretary] District. Caste Verification Committee] Thane Room No. 9 and 10 Ground Floor ] Kokan Bhuvan CBD Belapur Navi Mumbai ] Dist. Thane. 2. Divisional Joint Registrar ] Co op. Society Kokan Division ] Navi Mumbai Office at Kokan Bhuvan] 3rd Floor Room No. 308 Navi Mumbai 614]3. The State of Maharashtra] Side Bombay High Court).]…Respondents Mr. Prasad Kulkarni Advocate a w. Mr.C.S. Patil Advocate for thePetitioner. Mrs. S.S. Bhende AGP for the State. CORAM : K.K.TATED AND ABHAY AHUJA JJ. RESERVED ON : 23rd MARCH 2021. PRONOUNCED ON : 08th APRIL 2021. SSP Borey Mugdha 1 18 on 08 04 2021 on 13 04 Judgment WPST 7238 21 1.docPER COURT: 1By this Petition the Petitioner is seeking quashing and settingaside the order dated 15th March 2021 passed by Respondent No.1 DistrictCaste Verification Committee Thane invalidating the caste claim of thePetitioner as ‘Rajput Bhamta’. It is the claim of the Petitioner that hebelongs to Hindu Rajput Bhamta caste which falls in V.J. category andhas been granted caste certificate dated 6th August 1993 by the CompetentOfficer. 2Petitioner submitted proposal for caste verification on 4 4 2003vide proposal No.5403 to the Respondent No.1 Committee afterwhich the caste claim of the Petitioner was subjected to enquiry by theVigilance Cell who submitted its report on 25th July 2003. The Vigilancereport is annexed at Exhibit Dof the Petition and also referred to on pages 2 to 4 of theImpugned Order. After submission of documents by the Petitioner Respondent No.1 directed scrutiny of documents and issued notice tosubmit written explanation vide letter dated 5th March 2021 as thedocuments were insufficient and inconclusive to prove caste claim.Petitioner appeared before the Respondent No.1 Scrutiny Committee onSSP Borey Mugdha 3 18 on 08 04 2021 on 13 04 Judgment WPST 7238 21 1.doc10th March 2021 and submitted written explanation after whichRespondent No.1 Scrutiny Committee vide order dated 15th March 2021rejected the caste claim of the Petitioner.8Being aggrieved by the same Petitioner is before us seekingquashing of order of the Respondent no.1 dated 15th March 2021 and forprotection of employment as Junior Clerk with Respondent No.2. 9Learned counsel Shri Kulkarni appearing for the Petitioner hastaken us through the genealogy of the Petitioner which is set out as under :KHANDERAO PATIL| | |Gulab| |Waman|| Narendrasing| | |Suryasing Pritamsing Vijaysing(brother) caste cert. (b) of the Maharashtra ScheduledCastes De notified TribesNomadic Tribes OtherBackward Classes and Special Backward CategoryCaste Certificate Rules 2012 the findings of theVigilance Officer do not bind the Committee nor can it be used as proof insupport of his caste claim.22With respect to the claim of the Petitioner on the basis ofdocuments of blood relatives from father’s side viz. Narendrasing PrakashPatil the purported holder of the caste validity certificate the committeehas found that Petitioner has not submitted any valid revenue documentestablishing the blood relations with Narendrasing Patil. The committeehas also stated that even if the Petitioner had submitted proof establishingblood relation with Narendrasing considering the aforesaid findingswith respect to Grandfather and Father it would not have been possiblefor the committee to issue caste validity certificate to the Petitioner onlyon that basis.23The then committee while considering the case of Petitioner’sbrother Suryasingh has personally verified the original record with respectof village form No.14 issued by the Tahasildar Amalner in the Petitioner’sgrandfather’s name Waman and it has observed that the caste ismentioned as ‘Rajput’ and not ‘Rajput Bhamta’ and the date of birth ismentioned as 9th October 1923. Also in respect of the school leavingcertificate of the grandfather submitted by the Petitioner where the casteSSP Borey Mugdha 9 18 on 08 04 2021 on 13 04 Judgment WPST 7238 21 1.docis mentioned as ‘Rajput Bhamta’ date of birth is mentioned as 16th July1923 and date of admission is mentioned as 2nd May 1929 it is stated thatwhen vigilance squad made inquiry in respect of the said school leavingcertificate they have noticed that the caste mentioned in the saiddocument is only ‘Rajput’ and not ‘Rajput Bhamta’. It is stated that theentries made in the school and revenue proofs of the grandfathersubmitted by the Petitioner are from pre independence period and thesame are very important entries.24In this context the decision of the Hon’ble Supreme Court inthe case of Madhuri Patil V s. Additional Commissioner Tribal DepartmentAIR 1995 SCbecomes relevant. It is observed that “It is obvious thatJudicial Magistrate has no Jurisdiction to issue Cast certiciate and it is avoid certificate. The entries in the school certificate of the father of theappellants Laxman Patil being pre independence period it bears “greatprobative Value” wherein he declared himself to be “Hindu Koli which isnow recognized as a backward class. The Caste affirmation certificate13issued by the samaj Caste Association Consists of these very communitieswho seek to get the status as Scheduled Tribes. It also does not therefore13 bear any probative value school certificates and Collegecertificates in favour of the appellants are the subject of enquiry therefore do not bear any value and independently their status is to be considered.”25With respect to the grievance of the Petitioner that the vigilanceenquiry report dated 25th July 2003 was not considered by the committee we are in agreement with the view expressed by the Respondent ScrutinyCommittee. Moreover even the then Scrutiny Committee had rejected thesaid vigilance report.SSP Borey Mugdha 10 18 on 08 04 2021 on 13 04 Judgment WPST 7238 21 1.doc26It would also be pertinent to quote from the findings of thecaste scrutiny committee in english as per official translation as under : “Point No. 2 : “As per Section 8 of The Maharashtra Scheduled Castes Scheduled Tribes De notified TribesNomadic Tribes other Backward Classes and Special Backward CategoryCaste Certificate Act 2000 the responsibilityof proving the claim is of the applicant. The applicant in support of hisclaim in respect of his caste has submitted belowmentioned documents.1.The applicant Vijaysingh Ajabsingh Patil himself submitted theSchool Leaving Certificate Gen. Reg. No. 10395 20 2 99issued by the Head Master Century Rayon School Shahad Thane tohim. It has been mentioned therein as caste Rajput Bhamta(Maga) place of Birth Jaitpeer Date of Birth 28 7 1981 Date ofAdmission in School 14 6 93. However as the said document ispost the deemed date the said document can not be held valid asproof in support of the applicant s claim in respect of his caste.2.The applicant submitted the School Leaving Certificate bearing Gen.Reg. No. 7915 dt. 11 June 1968 issued by the Superintendent K. E.Society Pratap High School Amalner to his fatherPatil Ajabsingh Waman. It has been mentioned therein as Date ofBirth 10 4 1950 Place of Birth Tal. Amalner. When the VigilanceSquad made enquiry in respect of the said document it has beenmentioned in the said document Date of Admission in School as6 6 1964. Similarly Caste Rajput has been mentioned. However as caste has not been mentioned as Rajput Bhamta in the saiddocument the said document can not be held valid as proof insupport of the applicant s claim in respect of his caste.SSP Borey Mugdha 11 18 on 08 04 2021 on 13 04 Judgment WPST 7238 21 1.doc3.The applicant submitted Village Form No. 14 issued by TahsildarAmalner to his grand father Waman Gulaba Khanderao. It has beenmentioned therein as Caste Rajput Date of Birth 9 10 1923. Afterverifying the original record of the said document and the claim ofthe applicant s real brother Suryasingh Ajabsingh Patil for hebelonging to the caste Rajput Bhamta the then Committee verifieddocumentary proofs in the matter of Suryasingh Ajabsingh Patil anddeclared his claim in respect of the caste Rajput Bhamta as invalid.After perusing the said file the then Committee had informed theTahsil Office Amalner having the custody of the Village Form No.14 which was issued to Waman Gulaba Khanderao by Tahsildar Amalner to remain personally present with the original record before the Committee. In connection therewith on the date20 11 2018 Clerk Shri. Sandeep Patil from Tahsildar Office Amalner was present for the hearing of the Committee. Heproduced the original record of Village Form No. 14 of WamanGulaba Khanderao before the Committee. When the thenCommittee perused the said record it was noticed that caste ofWaman Gulaba Khanderao was mentioned as Rajput and his date ofbirth as 9 10 23 in the roznama. However as caste has not beenmentioned as Rajput Bhamta in the said document the saiddocument can not be held valid as proof in support of the applicant sclaim in respect of his caste. 4) The Applicant has submitted the School Leaving Certificate bearingReg. No. 66 Book No. 1 dated 28th January 2000 of his grandfather Waman Gulaba Patil issued by Central Pre Primary School Jaitpor Tal. Amalner District Jalgaon wherein the cast is mentionedas Rajput Bhamta date of birth is mentioned as 26 7 1923 and dateSSP Borey Mugdha 12 18 on 08 04 2021 on 13 04 Judgment WPST 7238 21 1.docof admission in school is 2 5 1929. On making enquiry in respect ofthe said document through Vigilance Squad it is found that in theoriginal General Register of the said document the caste is mentionedas Rajput . Similarly in the Enquiry Report dated 04 03 2021 of theVigilance Squad the date of birth is mentioned as 16 07 1923 anddate of admission in school is mentioned as 02 05 1929. From this itis noticed that the Applicant by submitting bogus fabricated schoolleaving certificate of his grand father having the entry of caste as Rajput Bhamta to the committee has tried to mislead thecommittee. Therefore the said document cannot be held as validproof in support of the claim of caste made by the Applicant.5)The Applicant has submitted the xerox copies of an extract from hisservice book and his father s service book wherein the entrythe findings mentioned and the opinions expressed by theSSP Borey Mugdha 13 18 on 08 04 2021 on 13 04 Judgment WPST 7238 21 1.docVigilance Officer whatever it may be will not be binding on theVerification Committee and it is mentioned therein that the samecannot be used as proof in support of the claim for belonging to theScheduled Castes Boudha converted to Scheduled Castes DenotifiedCastes Nomadic Tribes other Backward Classes or Special Backwardcategory. Therefore the report of Vigilance Squad submitted by theApplicant cannot be held as valid proof in support of the claim ofcaste. ….….….….….Point No. 3The Applicant has not submitted the valid Revenue documents establishing the blood relations from father s side with PatilNarendrasingh Prakash the holder of the caste validity certificate andtherefore as the relation of the Applicant does not match with theCaste Validity Certificate holder the said caste validity certificatecannot be held as valid proof. Moreover even if the Applicant had submitted the proofsestablishing blood relation with Patil Narendrasingh Prakash thenalso only after considering the facts mentioned in point No. 2 above it is clarified here that it would not have become possible for thecommittee to issue Caste Validity Certificate to the Applicant only onthe basis of the caste validity certificate of Patil NarendrasinghPrakash.Moreover the Hon ble Supreme Court in the matter viz. RajuRamsing Vasave v s Mahesh Devrao Bhivapurkar Civil Appeal No.5308 2008 in paragraph No. 27 has observed as follows: 27. “We do not mean to suggest that an opinion formed by the Committee as regardsthe caste of the near relative of the applicant would be wholly irrelevant. But atSSP Borey Mugdha 14 18(a)...(a...)on 08 04 2021 on 13 04 Judgment WPST 7238 21 1.docmentioned in the said document is only Rajput and not Rajput Bhamta. The entries made in the school and Revenue proofs of thegrand father submitted by the Applicant alongwith the Applicationare from the pre independence period and the same are veryimportant entries. In this regard it is mentioned in the Order dated 02 09 1994 of the Hon bleSupreme Court in writ petition No. 5854 1994 Madhuri Patil versus AdditionalCommissioner Tribal Department as under. “It is obvious that Judicial Magistratehas no Jurisdiction to issue Cast certificate and it is a void certificate. The entriesin the school certificate of the father of the appellants Laxman Patil being pre independence period it bears “great probative Value” wherein he declared himselfto be “Hindu Koli which is now recognized as a backward class. The Casteaffirmation certificate issued by the samaj Caste Association Consists of thesevery communities who seek to get the status as Scheduled Tribes. It also does not therefore bear any probative value school certificates and College certificates infavor of the appellants are the subject of enquiry therefore do not bear anyvalue and independently their status is to be considered.”The Applicant has claimed that he belongs to the RajputBhamta Caste. The Applicant has submitted the School LeavingCertificate of father and grandfather and grand father s village FormNo. 14 and in the said documents the caste is mentioned as Rajput .From this it is seen that the forefathers of the Applicant did notbelong to the caste Rajput Bhamta but they belonged to the Rajputcaste and the caste Rajput has not been mentioned in the list ofdenotified castes. Therefore the aforesaid principle of the Hon bleSupreme Court is applicable to this matter From this it is found thatthe Applicant does not belong to Rajput Bhamta Caste.”27No fault can be found with the findings of the ScrutinyCommittee. Based on clear evidence as recorded in the Impugned Order we find that Form No.14 in the name of the grand father as well as theSSP Borey Mugdha 16 18(a).....(a) on 08 04 2021 on 13 04 Judgment WPST 7238 21 1.docSchool Leaving Certificates of grand father refer to the caste as “Rajput”and not “Rajput Bhamta”. Even the father’s School Leaving Certificatementions the caste as ‘Rajput’ and not ‘Rajput Bhamta’. Real brotherSuryasingh’s caste certificate has been invalidated earlier. No documentsin respect of cousin uncle Narendrasing have been placed on record. Withrespect of the Petitioner’s affinity test the committee has clearly found thatno similarity is seen as per the affinity test given by the Petitioner duringthe course of the hearing on 10th March 2021 and the same has not beenheld to be valid for the Petitioner’s claim to ‘Rajput Bhamta’ caste. Evenotherwise as held in the case of Anand Katole v s. The Committee forScrutiny and Verification of tribe claimMh. L. J.919] theaffinity test may not be regarded as a litmus test for establishing the link ofthe applicant with a Scheduled Tribe. Paragraph 22is relevant and isquoted as under: “(ii)While applying the affinity test which focuses on theethnological connections with the scheduled tribe a cautious approach has to be adopted. A few decades ago when the tribeswere somewhat immune to the cultural development happening around then the affinity test could serve as a determinative factor. However with the migrations modernisation and contact with other communities these communities tend to develop and adopt new traits which may not essentially match with the traditional characteristics of the tribe. Hence affinity test may not be regarded as a litmus test for establishing the link of the applicant with a Scheduled Tribe. Nevertheless the claim by an applicant that he is a part of a scheduled tribe and is entitled to the benefit extended tothat tribe cannot per se be disregarded on the ground that his present traits do not match his tribes’ peculiar anthropological and ethnological traits deity rituals customs mode of marriage death ceremonies method of burial of dead bodies etc. Thus the affinity test may be used to corroborate the documentary evidence and should not be the sole criteria to reject a claim.” SSP Borey Mugdha 17 18 on 08 04 2021 on 13 04 Judgment WPST 7238 21 1.doc28The caste scrutiny committee has also observed that theforefathers of the Petitioner did not belong to ‘Rajput Bhamta’ caste butthey belong to Rajput caste which has not been mentioned in the list ofdenotified castes. It is also observed by the committee with respect to theaffinity test given by the Petitioner during the course of the hearing thatthere is no similarity seen in respect of the Petitioner with respect to the‘Rajput Bhamta’ caste. The committee has observed that the Petitioner’sgrandfather had studied at Amalner District Jalgaon and his father hasstudied upto 11th Standard and he retired after serving with theGovernment of Maharashtra. The committee has observed that thereforethe forefathers of the Petitioner were highly educated. On the basis of theaforesaid findings the committee has come to a conclusion that thePetitioner does not belong to ‘Rajput Bhamta’ caste and has declared thecaste claim of the Petitioner as invalid. Considering the aforesaidincontrovertible findings of fact by the caste scrutiny committee we arenot inclined to interfere with the order dated 15th March 2021 of theDistrict Caste Certificate Verification Committee Thane.29Hence the following order:A]The Petition is accordingly dismissed with no order as to costs. B]All interim orders also stand vacated.[ABHAY AHUJA J.] [ K.K.TATED J.]SSP Borey Mugdha 18 18

Anticipatory Bail granted to a Lady alleged of assault of a Man, his Wife and his Son: High Court Of Patna

Petitioners were alleged for assault on the Informant, his wife, and his son. The Assault was by 10 people to which the High Court gave different decisions for each Petitioner and petitioner No. 1 was granted bail on the grounds of being a female and not being capable of assaulting along with 9 other males. The Hon’ble High Court of Patna before Mr. Justice Ahsanuddin Amanullah held such in the matter of Sairun Khatoon and Ors. v. The State of Bihar[Criminal Miscellaneous No. 40836 of 2020]. The facts of the case were the Petitioners were apprehended arrest in relation to Jogapatti PS Case No. 246 of 2020 instituted under sections 341, 323, 324, 307, 447 354B, 379, 504, and 506/34 of Indian Penal Code, 1860. Petitioners were alleged to the assault of informant’s wife and abused physically. The nose pin and chain were also snatched and the informant’s son was also assaulted in the process. Petitioners submitted that though the informant had suffered grievous hurt but the same is the result of just one blow and hence, they may be granted anticipatory bail. They claimed that injury is also suffered by one of the petitioners. Petitioner No. 1, since she was a lady and would not have participated in the assault with the other 9 male petitioners was granted anticipatory bail. The court decided,” Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, in view of the seriousness of the injury suffered by the informant, the Court, at this stage, would not go into the detail of whether it was the petitioners who had assaulted or not. Thus, the court is not inclined to grant pre-arrest bail to petitioners no. 2 and 3 namely, Mumtaz Mian and Aslam Mian, respectively, and accordingly, the petition on their behalf is rejected.” The Court granted bail to Sairun Khatoon upon furnishing bail bonds of Rs. 25,000 with 2 sureties of the like amount subject to the conditions as per Section 438(2) of Code of Criminal Procedure, 1973, and bailor shall execute the bond and sign an undertaking with regard to good behavior and should cooperate with Court, Police and Prosecution.  The Hon’ble High Court of Patna concluded,” It shall also be open for the prosecution to bring any violation of the foregoing conditions by the petitioner no. 1, to the notice of the Court concerned, which shall take immediate action on the same after giving the opportunity of hearing to the petitioner no. 1.”  The petition was disposed of on the aforementioned terms. Click Here To Read The Judgment

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 408320 Arising Out of PS. Case No. 246 Year 2020 Thana JOGAPATTI District West Champaran Sairun Khatoon @ Sairul Khatoon about 50 years Female Wife of Isha 2. Momtaz Mian @ Mumtaz Mian about 30 years Male Son of Isha Mian. 3. Aslam Mian about 57 years Male Son of Late Naresh Mian All residents of Village Padraun PS Jogapatti District West Champaran The State of Bihar ... Petitioner s ... Opposite Party s For the Petitioner s For the State For the Informant Mr. Umesh Chandra Verma Advocate Mr. Mithlesh Kumar Khare APP Mr. Bashishth Narayan Mishra Advocate CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 24 09 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. Umesh Chandra Verma learned counsel for the petitioners Mr. Mithlesh Kumar Khare learned Additional Public Prosecutor for the State and Mr. Bashishth Narayan Mishra learned counsel for the 4. The petitioners apprehend arrest in connection with Jogapatti PS Case No. 2420 dated 14.06.2020 instituted Patna High Court CR. MISC. No.408320 dt.24 09 2021 under Sections 341 323 324 307 447 354B 379 504 and 506 34 of the Indian Penal Code 1860 5. The allegation against the petitioners and seven others is of abusing the informant and also of assault on his wife and dragging her leading to her becoming semi naked. Further against some of the accused including petitioners no. 2 and 3 the allegation is that they had snatched the gold nose pin and chain of the wife of the informant and in the process the son of the informant also was assaulted 6. Learned counsel for the petitioners submitted that the allegation of assault is general and omnibus on 10 persons including the petitioners. It was submitted that though there is injury suffered by the informant which has been termed as grievous but the same is the result of only one blow and thus the petitioners may be granted the indulgence of anticipatory bail. It was submitted that for the same incident there is also a counter case and injury has been suffered on the side of the petitioners also. Learned counsel submitted that the petitioner no. 1 at least may be considered for grant of anticipatory bail as she is a lady and it cannot be expected that when nine other male members are assaulting she would also participate in such assault. Further it was submitted that the allegation of snatching of gold nose pin Patna High Court CR. MISC. No.408320 dt.24 09 2021 and chain of the informant’s wife is cosmetic in nature. Learned counsel submitted that the parties being next door neighbours there may have been some scuffle but the same has been blown out of proportion and unfortunately the informant has received head injury and there has been injury on the side of the petitioners 7. Learned APP and learned counsel for the informant submitted that the petitioners were very much party to the assault and the injury is grievous and life threatening 8. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties in view of the seriousness of the injury suffered by the informant the Court at this stage would not go into the detail of whether it was the petitioners who had assaulted or not. Thus the Court is not inclined to grant pre arrest bail to petitioners no. 2 and 3 namely Momtaz Mian @ Mumtaz Mian and Aslam Mian respectively and accordingly the petition on their behalf is rejected 9. However in view of petitioner no. 1 namely Sairun Khatoon @ Sairul Khatoon being a lady and the allegation being that she along with nine other male members had assaulted the informant since under normal circumstances it cannot be expected that when nine male members are assaulting she would Patna High Court CR. MISC. No.408320 dt.24 09 2021 also have participated in the assault on the informant and further from the tenor of the FIR there appears to be merit in the submission of learned counsel for the petitioners that the allegation that they had snatched the gold nose pin and chain may also be cosmetic in nature the Court is inclined to allow the prayer for bail of petitioner no. 1 namely Sairun Khatoon 10. Accordingly in the event of arrest or surrender before the Court below within six weeks from today the petitioner no. 1 namely Sairun Khatoon @ Sairul Khatoon be released on bail upon furnishing bail bonds of Rs. 25 000 with two sureties of the like amount each to the satisfaction of the learned Chief Judicial Magistrate West Champaran at Bettiah in Jogapatti PS Case No. 246 of 2020 subject to the conditions laid down in Section 438(2) of the Code of Criminal Procedure 1973 and further that one of the bailors shall be a close relative of the petitioner no. 1 that the petitioner no. 1 and the bailors shall execute bond and give undertaking with regard to good behaviour of the petitioner no. 1 andthat the petitioner no. 1 shall co operate with the Court and police prosecution. Any violation of the terms and conditions Patna High Court CR. MISC. No.408320 dt.24 09 2021 of the bonds or the undertaking or failure to co operate shall lead to cancellation of her bail bonds 11. It shall also be open for the prosecution to bring any violation of the foregoing conditions by the petitioner no. 1 to the notice of the Court concerned which shall take immediate action on the same after giving opportunity of hearing to the petitioner 12. The petition stands disposed of in the (Ahsanuddin Amanullah J

Fatwa is not legally binding on parties: Delhi High Court

Fatwa regarding the transfer and possession of immovable property was cited by one of the parties regarding ownership and possession of a property. The Single judge bench of the Delhi High Court was of the opinion that there can be no legality or validity attached to a ‘Fatwa’ and they cannot be legally binding on the parties. This ration was laid down by J. P.M. Singh in the case of Mohd. Ashraf & Ors. Vs. Abdul Wahid Siddique, [C.R.P. 89/2016]. The brief facts of the case are that a suit for possession and ownership of a property located in the Daryaganj area was filed. The Petitioner alleged that he was the owner of the said property and provided evidence of the same by placing six registered sale deeds that traced back the title to one Mst. Musharraf Begum and a fatwa on record. The Defendants in this case opposed the claim made by the Petitioners and stated that the original owner who is the lady in this case made a declaration that after her death the tenants would be the owners of the property. Further, the Defendant was of the opinion that they have been living at the said property for almost 32 years i.e. since 1971 and no claim of possession has been made in these years hence he was the owner of the property by way of adverse possession. The lower court had dismissed this application and so the appeal was preferred by the Petitioner. The High Court observed the facts of the case and on the issue of fatwa the court cited the Supreme Court’s verdict in the case of Vishwa Lochan Madan Vs. UOI & Ors. and stated that “fatwa does not satisfy the requirements of a legally binding document and that they do not trace their origin to validly made law.” The court further stated that, “Imposition of a fatwa would itself be illegal and that. The effect of this judgment on the alleged fatwa, which is the basis of the Plaintiffs claim to ownership, would therefore have to be adjudicated by the Trial Court.” Lastly, on the issue of Constitutionality of considering Fatwa legally binding the court stated that, “While a fatwa can be the basis of an amicable settlement of disputes between parties who submit to such a settlement process, binding the same on a third party would be contrary to law.” The Court in this case instructed the lower court to conclude the suit within six months on the basis of the other documentary evidence provided by the parties.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 14th December 2020 C.R.P. 89 2016 MOHD ASHRAF & ORS. ..... Petitioners Through: Mr. Arpit Bhargava and Ms. Hina Bhargava Advocates. M: 9871316969) ABDUL WAHID SIDDIQUE CORAM: JUSTICE PRATHIBA M. SINGH Through: Mr. Rajiv Bajaj Advocate. ..... Respondent Prathiba M. Singh J.CM APPL. 3822 2019 This hearing has been done by video conferencing. 2. This application has been filed by the Petitioners seeking condonation of 25 days’ delay in re filing the application for stay of the trial court proceedings till the disposal of the present petition. Delay is condoned. Application is disposed of. CM APPL. 54975 2018 3. This application has been filed by the Petitioners for exemption from filing certified copies of the annexures and fair typed copies of dim annexures. Allowed subject to all just exceptions. Application is disposed of. C.R.P. 89 2016 & CM APPLs. 54974 2018 3821 2019 4. Two short issues arise in this petition: i. Firstly whether the judgment of the Trial Court dismissing the application under Order XII Rule 6 CPC after nearly one and a C.R.P. 89 2016 Page 1 of 20 half years of arguments being heard and the order being reserved is sustainable ii. Whether rights in an immovable property can be legally and validly derived on the basis of a fatwa issued by a maulvi and its binding nature on a third party 5. A suit for possession and recovery of damages was filed by three Plaintiffs i.e. Mr. Mohd Ashraf Ms. Sadia Saad Yusuf and Mr. Javed Iqbal who are the Petitioners in the present petition against Mr. Abdul Wahid Siddique i.e. the Respondent Defendant is that they are the owners of the suit property being property bearing no 1525 27 Begum Manzil Pataudi House Darya Ganj New Delhi 110002 and they trace back their title to one Mst. Musharraf Begum through six registered sale deeds and a fatwa which are as under: i. Fatwa dated 6th November 1971 issued by Mufti Musharraf Ahmed Jamia Fatehpuri Delhi which as per the Plaintiff’s vested rights in Mr. Mohammad Salim Hussain. ii. Sale Deed dated 18th February 1999 executed by Mr. Asmat Saleem son of Late Mr. K.M. Salim Hussain in favour of Mr. Arshad Zarabi and Mr. Zahid Hussain. iii. Sale Deed dated 26th June 2002 executed by Mr. Arshad Zarabi and Mr. Zahid Hussain in favour of Mr. Mohd. Ashraf by which Mr. Mohd. Ashraf is stated to have acquired 75% of the suit property. iv. Sale Deed dated 7th February 2011 executed by Mr.Zahid Hussain in favour of Mr. Javed Iqbal by which Mr. Javed Iqbal is stated to have acquired 25% share in the suit property. C.R.P. 89 2016 Page 2 of 20 v. Sale Deed dated 7th February 2011 executed by Mr. Mohd. Ashraf favour of Mr. Javed Iqbal by which Mr. Javed Iqbal is stated to have acquired 9% share in the suit property i.e a total of 34% share in the suit vi. Sale Deed dated 7th February 2011 executed by Mr. Mohd. Ashraf in favour of Ms. Sadia Saad Yusuf by which Ms. Sadia Saad Yusuf is stated to have acquired 33% share in the suit property. Thus the foundation of all the Sale Deeds is the fatwa dated 6th November Further the case of the Plaintiffs is that the Defendant was a tenant of Mst. Musharraf Begum and has no right in the suit property. Purchase of the suit property was made by the Plaintiffs by registered sale deed in the year 2002 and 2011 pursuant to which notice demanding arrears of rent and vacation of premises was issued in May 2011 to the Defendant. The Defendant challenged the ownership of the Plaintiffs on various grounds leading to the filing of the suit for possession. The Defendant’s defence is that the original owner had made a declaration transferring ownership in favour of the Tenants. The Defendant’s case in the written statement is as follows: i. That if the rent is Rs.375 per month then the provisions of the Delhi Rent Control Act 1958 would apply. ii. The Plaintiff’s own case is that the Defendant is in possession since 32 years or more and no rent has been paid by the Defendant over this entire period. Thus the Defendant is the owner of the suit property by means of adverse possession. iii. The Plaintiff does not disclose the chain of documents by which the C.R.P. 89 2016 Page 3 of 20 Plaintiff became the exclusive owner of the suit property and if the said chain is disclosed it would be clear that the ownership is claimed on the basis of forged and fabricated documents. iv. No person has demanded the rent from the Defendant since 1971. There is no rent agreement or rent receipt in favour of the Plaintiff or even the original owner Mst. Mussharaf Begum. v. Since Mst. Mussharaf Begum had no children and no close relatives during her lifetime she had declared that the tenants occupants of the property would become owners upon her death. vi. The intention of the Plaintiff is to grab the suit property on the basis of forged and fabricated documents. vii. That an unlawful attempt was made to disconnect the electricity supply to the premises which was restored by an order of the ld. Civil Judge in Suit No. 387 2011. The following issues were framed in the suit on 23rd October 2013: “1. Whether the plaintiff is entitled to decree for recovery of possession of suit property 2. Whether the plaintiff is entitled to decree for recovery of damages at the rate of Rs.25 000 p.m. from the date of filing of the suit till the possession is handed over OPP 3. Whether the plaintiff is entitled to decree of defendant from creating third party interest in the suit property OPP 4. Whether the defendant has become the owner of the suit property by way of adverse possession OPD C.R.P. 89 2016 Page 4 of 20 5. Relief.” After issues were framed an application under Order XII Rule 6 CPC was filed by the Plaintiffs. Arguments on the application were heard on 27th September 2014 and the matter was fixed for orders clarifications on 15th October 2014. Thereafter on several dates the order was not passed. Further without any direction from the Court on two occasions the Defendant filed case law. Finally the Plaintiffs moved an application under Order XX Rule 1 CPC seeking pronouncement of judgment and finally the impugned order dismissing the Order XII Rule 6 CPC application was passed on 12th February 2016. 10. Mr. Bhargava ld. counsel for the Plaintiffs submits on the first issue that going by the judgment of this Court in Deepti Khera v. Siddharth Khera CM1637 2019 decided on 18th November 2019] which relied on the judgment by the Supreme Court in Anil Rai v. State of Bihar 7 SCC 318 the order was passed very belatedly. On this very ground it is argued that the impugned order is liable to be set aside. 11. On this issue Mr. Bajaj ld. counsel for the Defendant does not dispute the chronology of events leading to the pronouncement of the judgment. 12. A perusal of the order sheet of the Trial Court shows that the orders passed on various dates after hearing in the Order XII Rule 6 CPC application are as under: Date of Order 7th August 2014 Contents of Order Reply to the application under Order 12 R 6 read with Section 151 CPC filed on behalf of the defendant. Copy C.R.P. 89 2016 Page 5 of 20 27th September 2014 15th October 2014 26th November 2014 10th December 2014 29th January 2015 16th February 2015 supplied. Taken on record. Put up for hearing arguments on pending application on Arguments on application u o 12 R 6 read with Section 151 CPC heard. Put up for order clarifications Defendant is at liberty to file case law in his support. any It is reported that defendant has filed some case law in support of his contention. In view of this put up for order clarification if any on Put up for purpose fixed on Lawyers are on strike today. Put up for order clarifications If any on 29.01.2015. Put up for order at 04.00 pm. Matter called up againwhich has been reiterated by this Court in Deepti Khera 15. The broad guidelines to be followed by the Trial Court once arguments are heard and orders are reserved is set out in Deepti Khera as “9. While this Court is conscious of the fact that there are pressures on the Trial Courts non pronouncement of orders for more than a year cannot be held to be justified. It has been observed in several matters that trial courts keep matters FOR ORDERS’ together and sometimes orders are not pronounced for even 2 3 years. Thereafter the judicial officer is transferred or posted in some other jurisdiction and the matter has to be reargued. Such a practice puts enormous burden on the system and on litigants lawyers. The usual practice ought to be to pronounce orders for months C.R.P. 89 2016 Page 9 of 20 within the time schedule laid down in the CPC as also the various judgements of the Supreme Court. In civil cases maximum period of two months can be taken for pronouncing orders unless there are exceptional cases or there are very complex issues that are involved. 10. Accordingly in respect of pronouncement of orders the following directions are issued: When arguments are heard the order sheet ought to reflect that the matter is part heard Upon conclusion of arguments the order sheet ought to clearly reflect that the arguments have been heard and the matter is reserved for orders. If the court is comfortable in giving a specific date for pronouncing orders specific date ought to be given Orders ought to be pronounced in terms of the judgment of the Supreme Court in Anil RaiThe order ought to specify the date when orders were reserved and the date of pronouncement of the this Court. The problem “2. Judicial discipline requires promptness in delivery of judgments an aspect repeatedly emphasized by compounded where the result is known but not the reasons. This deprives any aggrieved party of the opportunity to seek further judicial redressal in the next tier of judicial scrutiny. 3. A Constitution Bench of this Court as far back as in the year 1983 in the State of Punjab v. Jagdev Singh Talwandi 1 SCC 596 drew the 16. Recently the Supreme Court in Balaji Baliram Mupade and Anr. v. State of Maharashtra and Ors. has also observed as under: C.R.P. 89 2016 Page 10 of 20 attention of the High Courts to the serious difficulties which were caused on account of a practice which was increasingly being adopted by several High Courts that of pronouncing the final orders without a reasoned judgment. … 4. Further much later but still almost two decades ago this Court in Anil Rai v. State of Bihar 7 SCC 318 deemed it appropriate to provide some the pronouncement of judgments expecting them to be followed by all concerned under the mandate of this Court. It is not necessary to reproduce the directions except to state that normally the judgment is expected within two months of the conclusion of the arguments and on expiry of three months any of the parties can file an application in the High Court with prayer for early judgment. If for any reason no judgment is pronounced for six months any of the parties is entitled to move an application before the then Chief Justice of the High Court with a prayer to re assign the case before another Bench for fresh 5. The aforementioned principle has been forcefully restated by this Court on several occasions including in Zahira Habibulla H. Sheikh v. State of Gujarat5 SCC 353 : AIR 2004 SC 3467 paras Haryana7 SCC 96 paras 5 10] and most Chhattisgarh 3 SCC 330 : AIR 2017 SC 11. We must note with regret that the counsel extended through various judicial pronouncements including the one referred to aforesaid appear to have been ignored more importantly where oral orders are pronounced. In case of such orders it is expected that they are either dictated in the Court 80 82] Mangat Ram v. State Singh v. State in Ajay C.R.P. 89 2016 Page 11 of 20 or at least must follow immediately thereafter to facilitate any aggrieved party to seek redressal from the higher Court. The delay in delivery of judgments has been observed to be a violation of Article 21 of the Constitution of India in Anil Rai s caseand as stated aforesaid the problem gets aggravated when the operative portion is made available early and the reasons follow much later.” Thus the Supreme Court has also recently reiterated the decision in Anil Rai supra). The Trial Court has to pronounce the order in terms of the timelines laid down in Anil Rai which has been reiterated by this Court in Deepti Khera7 SCC 707. A fatwa in fact binds as a whole and is a method of bringing about amicable settlement between the parties. A fatwa per se is not illegal and the original owner her husband and her sister having passed away issuance of the fatwa in favour of the nephew of the original owner cannot be held to be illegal. He further relies C.R.P. 89 2016 Page 12 of 20 upon a judgment of this Court in Hari Gopal Manu v. B.S. Ojha to argue that once the Defendant accepts that he is a tenant he cannot challenge the rights of the owner. He also relies upon the judgment of this Court in Mahinder Pal Singh v. Ali Hussein Khan F+ 1684 2009 decided on 1st December 2011] to argue that an oral declaration cannot be relied upon by the Defendant in this matter. 20. On the other hand ld. counsel for the Defendant submits that the original sale deed dated 18th February 1999 which is part of the chain of documents leading to the Plaintiffs’ sale deed itself records that Mst. Musharraf Begum had passed away on 20th July 1971 and her husband had also died. Her sister passed away on 3rd August 1971 leaving behind Khawaja Mohammad Salim Husain who had allegedly succeeded to the estate of Mst. Musharraf Begum on the basis of a fatwa. The manner in which the fatwa describes him as the nephew of Mst. Musharaf Begum is also not clear. A fatwa needs to be proved in accordance with law. In any event the Plaintiffs’ case is not one for being decreed under Order XII Rule 6 CPC. 21. Heard counsels for the parties. The legality and validity of a fatwa issued by maulvis has been the subject matter of the judgment of the Supreme Court in Vishwa Lochan Madan v. UOI & Others. 7 SCC 707. The Supreme Court was concerned with the question as to whether a fatwa is binding and if so in what manner. The Supreme Court was unequivocal in its pronouncement that a fatwa does not satisfy the requirements of a legally binding document and they do not trace their origin to validly made law. The observations of the Supreme Court are as under: C.R.P. 89 2016 Page 13 of 20 “13. As it is well settled the adjudication by a legal authority sanctioned by law is enforceable and binding and meant to be obeyed unless upset by an authority provided by law itself. The power to adjudicate must flow from a validly made law. A person deriving benefit from the adjudication must have the right to enforce it and the person required to make provision in terms of adjudication has to comply that and on its failure consequences as provided in law are to ensue. These are the fundamentals of any legal judicial system. In our opinion the decisions of Dar ul Qaza or the fatwa do not satisfy any of these requirements. Dar ul Qaza is neither created nor sanctioned by any law made by the competent legislature. Therefore the opinion or the fatwa issued by Dar ul Qaza or for that matter anybody is not adjudication of dispute by an authority under a judicial system sanctioned by law. A Qazi or Mufti has no authority or powers to impose his opinion and enforce his fatwa on anyone by any coercive method. In fact whatever may be the status of fatwa during Mogul or British Rule it has no place in independent India under our constitutional scheme. It has no legal sanction and cannot be enforced by any legal process either by the Dar ul Qaza issuing that or the person concerned or for that matter anybody. The person or the body concerned may ignore it and it will not be necessary for anybody to challenge it before any court of law. It can simply be ignored. In case any person or body tries to impose it their act would be illegal. Therefore the grievance of the petitioner that Dar ul Qazas and Nizam e Qaza are running a parallel judicial system is misconceived. 14. As observed earlier the fatwa has no legal Notwithstanding that it is an admitted position that C.R.P. 89 2016 Page 14 of 20 fatwas have been issued and are being issued. The All India Muslim Personal Law Board feels the “necessity of establishment of a network of judicial system throughout the country and Muslims should be made aware that they should get their disputes decided by the Qazis”. According to the All India Muslim Personal Law Board “this establishment may not have the police powers but shall have the book of Allah in hand and sunnat of the Rasool and all decisions should be according to the book and the sunnat. This will bring the Muslims to the Muslim courts. They will get justice”. 15. The object of establishment of such a court may be laudable but we have no doubt in our mind that it has no legal status. It is bereft of any legal pedigree and has no sanction in laws of the land. They are not part of the corpus juris of the State. A fatwa is an opinion only an expert is expected to give. It is not a decree nor binding on the court or the State or the individual. It is not sanctioned under our constitutional scheme. But this does not mean that existence of Dar ul Qaza or for that matter practice of issuing fatwas are themselves illegal. It is informal justice delivery system with an objective of bringing about amicable settlement between the parties. It is within the discretion of the persons concerned either to accept ignore or reject it. However as the fatwa gets strength from the religion it causes serious psychological impact on the person intending not to abide by that. As projected by Respondent 10 “Godfearing Muslims obey the fatwas”. In the words of Respondent 10 “it is for the persons parties who obtain fatwa to abide by it or not”. He however emphasises that “the persons who are Godfearing and believe that they are answerable to the Almighty and have to face the consequences of their doings deeds such are the persons who submit to the fatwa”. Imrana s case is C.R.P. 89 2016 Page 15 of 20 an eye opener in this context. Though she became the victim of lust of her father in law her marriage was declared unlawful and the innocent husband was restrained from keeping physical relationship with her. In this way a declaratory decree for dissolution of marriage and decree for perpetual injunction were passed. Though neither the wife nor the husband had approached for any opinion an opinion was sought for and given at the instance of a journalist a total stranger. In this way the victim has been punished. A country governed by rule of law cannot fathom it.” 22. A perusal of the above judgment makes it abundantly clear that a fatwa cannot be imposed on a third party. A fatwa can be completely ignored and no one needs to challenge the same before any Court of law. Imposition of a fatwa would itself be illegal. The effect of this judgment on the alleged fatwa which is the basis of the Plaintiffs claim to ownership would therefore have to be adjudicated by the Trial Court. 23. Moreover the manner in which ownership of immovable property can either be vested or transferred is governed by the Transfer of Property Act 1882 and the provisions of the Registration Act 1908 have to be complied with. While inheritance can undoubtedly be decided on the basis of personal law in the present case there has been no adjudication as to who has inherited the suit property which belongs to Mst. Mussharaf Begum and in what share. A Court of law would have to adjudicate this issue after considering the documents and evidence before it. A mere unilateral fatwa allegedly issued in favour of one Mohd. Salim Hussain on the basis of which his son purportedly transferred the rights to the Plaintiffs cannot be a valid and legal transfer in the eyes of law that too for decreeing a suit under Order XII Rule 6 CPC. C.R.P. 89 2016 Page 16 of 20 24. Recognizing such rights based on a fatwa which has not been examined or sanctioned by a Court of law would be contrary to the Constitutional scheme. While a fatwa can be the basis of an amicable settlement of disputes between parties who submit to such a settlement process binding the same on a third party would be contrary to law. As held in Masoor Ahmed v. State NCT of Delhi) and Ors. 2008 DRJ 137 as per Section 2 of the Muslim Personal LawApplication Act 1937 issues relating to intestate succession special property of females including personal property marriage dissolution of marriage maintenance dower guardianship gifts trusts and trust properties and wakfs would be governed by the Muslim Personal LawBalaji Baliram Mupade supra) and Deepti Kheraare adhered to in respect of pronouncement of orders. PRATHIBA M. SINGH DECEMBER 14 2020 corrected and released on 19th December 2020. C.R.P. 89 2016 Page 20 of 20

Bachu Miah V/s. Ranu Begum

Under section 20 of the Protection of Women from Domestic Violence Act 2005, the Magistrate is empowered to direct the respondent to pay monetary relief to the aggrieved person and any child on account of the losses suffered by the aggrieved person and any child as a result of the domestic violence. BRIEF FACTS AND PROCEDURAL HISTORY The wife filed a petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005 and she prayed for an order of protection under Section 18, an order of grant of residence under Section 19 and an order for grant of monetary relief under Section 20 in her favour. This complaint was received by the Court on 08.10.2013 and notice was ordered to be issued to the respondents for 24.10.2013. On this date, the respondent husband appeared along with his counsel and the case was transferred to the Court of the Judicial Magistrate, 1st Class, Bishalgarh for disposal in accordance with law.On 27.05.2014, all the parties were present and on this date, the impugned order was passed.On behalf of the wife, it was urged that she has been tortured and she only prayed for grant of monetary relief claiming Rs.9,00,000/- in all. The respondents contested the allegations of mental or physical torture and it was contended that the aggrieved person wife was at liberty to come and stay in the house of the husband and therefore, she is not entitled to any relief.Thereafter, the husband-petitioner was directed to pay Rs.3,000/- per month as monetary relief under Section 20 under the Act to the aggrieved person wife. The other respondents were discharged.This writ appeal is directed against the judgment dated 25.08.2014 passed in W.P(Crl.)2 of 2014. The issue raised by Sri A. Bhowmik, learned counsel, appearing for the husband is that the Magistrate passed the impugned order granting maintenance in favour of the wife without holding any inquiry and without giving any opportunity of leading evidence to the husband. ISSUES BEFORE THE COURT Whether the judgement challenged was in accordance with the principles of natural justice?Was an opportunity of leading evidence was given to the husband before pronouncement of the order?Whether the conclusion that domestic violence has taken place was established? RATIO OF THE COURT The court was of the considered view that even where the Court decides to lay down its own procedure, the said procedure must be in accordance with the rules of natural justice. The procedure cannot be such which is against the rules of natural justice.The court observed that the Magistrate while dealing with an application under Section 12 must follow the procedure laid down under section 125 of the Code of criminal procedure.The court observed that it is apparent that no evidence was recorded in the presence of the petitioner and the procedure laid down in Section 126 of Cr.P.C was not followed.The court observed that the power to grant relief under section 12 arises only when an incidents on domestic violence has taken place.The court observed that no order under section 18 can be passed unless the Magistrate prima facie satisfies himself that either domestic violence has taken place or is likely to take place. An order of residence under section 19 can only be passed if the Magistrate is satisfied that domestic violence has taken place. As far as section 20 is concerned, the Magistrate is empowered to direct the respondent to pay monetary relief to the aggrieved person and any child on account of the losses suffered by the aggrieved person and any child as a result of the domestic violence. Therefore, the Court will have to come to a finding that domestic violence has taken place.The court observed that before passing any order under section 20, the Magistrate must come to the conclusion that domestic violence has taken place. In the present case, we find that no such finding was arrived at by the Magistrate.The court observed that while assessing the maintenance, the Magistrate cannot ignore the income of the husband. DECISION HELD BY THE COURT The court, accordingly, disposed of the appeal in the aforesaid terms and also issue the following directions :-We reaffirm the directions given by the learned Single Judge which has been quoted above. That in cases falling under the Domestic Violence Act, in terms of the section 28 of the Act and Rule 6(5) of the rules, the Magistrate shall follow the procedure laid down in the Code of Criminal Procedure, 1973 for deciding petitions u/s 125 of the Cr.P.C but if the Magistrate for reasons to be recordedso decides, it may lay down its own procedure in terms of section 28(2), but such procedure must be consistent with the rules of natural justice.That before passing an order under section 20, the Court must come to the conclusion that domestic violence has taken place.While granting Protection orders under section 18, the Magistrate must prima facie satisfy himself that domestic violence has taken place. Before passing a Residence order under section 19, the Magistrate must be satisfied that Domestic violence has taken place.As far as orders under section 17 and 21 are concerned as already held above, it is not necessary to establish domestic violence. Even in cases of orders passed under section 22, the Magistrate can pass an order only after coming to the conclusion that domestic violence has taken place. That before passing orders, the respondent must be heard and a procedure consistent with the code of Criminal Procedure or the rules of natural justice must be followed. Section 23 empowers the Magistrate to pass interim orders and these orders can be passed at the preliminary stages also if domestic violence is apprehended or the application prima facie discloses that the respondent has committed an act of domestic violence.The parties through their counsel were directed to appear before the Court below on 2nd March, 2015. The Registry was directed to send the record to the learned Magistrate who shall then proceed to decide the matter and pass appropriate order u/s 20 of the Protection of Women from Domestic Violence Act, 2005 after following the law laid down hereinabove.

THE HIGH COURT OF TRIPURA W.A. 614 Bachu Miah S O Md. Tahim Miah R O Salthang ManuP.O.: Manpathar P.S: Shantirbazar Dist.: South Tripura. ..… Appellant Vs. Ranu Begum W O Bachu Miah D O Abdul Mannaf R O: Vill: Durganagar P.O: K.K. Nagar P.S: Bishalgarh District: Sepahijala. ..… Respondent HON’BLE THE CHIEF JUSTICE MR. DEEPAK GUPTA HON’BLE MR. JUSTICE U.B. SAHA For the respondents : Mr. A.K. Bhowmik Sr. Advocate. Mr. R. Datta Advocate. Date of hearing : 08.01.2015 Delivery of : 05.02.2015. Judgment & order. Whether fit for : Yes. JUDGMENT & ORDER Deepak Gupta CJ.) This writ appeal is directed against the judgment dated 25.08.2014 passed in W.P(Crl.)2 of 2014 whereby a learned Single Judge of this Court after discussing the entire law on the subject issued the following directions: For the appellant : Mr. A. Bhowmik Advocate. ―[17] On study of the various provisions of the PWDV Act 2005 this Court holds as under: An aggrieved person within the meaning of Section i) 2(a) of the PWDV Act 2005 may directly approach the Magistrate for passing any order under Section 12 read with Sections 18 19 20 21 22 & 23 of the PWDV Act without making any report to the Protection Officer. ii) When an aggrieved person or any other person gives information to the Protection Officer the Protection Officer is under obligation under Section 9(1)(d) to make a Domestic Incident Report to the Magistrate in the Form I under Rule 5 of the of the PWDV Rules 2006. iii) If such DIR is available the aggrieved person may file an application to the Magistrate under Section 12 of the PWDV Act 2005 in Form II under Rule 6 of the PWDV Rules 2006 taking or without taking assistance of the Protection Officer in preparing her application and forwarding the same to the concerned Magistrate. Even the Protection Officer may prepare application if the aggrieved person is illiterate. Such application shall be affirmed by affidavit in terms of Section 23(2) if there is any prayer for interim protection or order. Such affidavit shall be filed in Form III under Rules 6(4) and 7 of the PWDV Rules 2006. iv) Rules 6(1) of the PWDV Rules 2006 has not left any confusion which might arise whether the application in Form II can be filed without the DIR. A keen reading of the said Rules 6(1) would attract attention to the Clause ‗or as merely as possible thereto‘ as appearing in Rule 6(1) of the PWDV Rules 2006. It purports and imports that when the aggrieved person would directly file the application under Section 12 of the PWDV Act the Form II may suitably be modified. v) When Section 12 of the PWDV Act enables an aggrieved person present an application to the Magistrate seeking one or more reliefs under of the PWDV Act without approaching the Protection Officer and when from a survey of the provisions of the PWDV Act it appears without any ambiguity that neither the Act nor the Rules made thereunder provide for getting a Domestic Incident Report from the Protection Officer or the service provider by the Magistrate before passing any order under Section 12 of the PWDV Act it cannot be said that the application filed under Section 12 can only be entertained by the Magistrate only on getting a Domestic Incident Report. vi) The Magistrate at his discretion however may call for a Domestic Incident Report from the concerned Protection Officer before passing any order under Section W.A. 614 12 of the PWDV Act. But at no stretch of interpretation it can be held that the Magistrate cannot pass any order Under Section 12 in absence of the DIR. vii) It is obligatory for the Magistrate to take into consideration any DIR received by him from the Protection Officer or the service provider before passing any order under Section 12 of the PWDV Act. But again it is not obligatory for a Magistrate to call such report. The Magistrate however may consider the said report at any stage of the proceeding without any inhibition. But under no circumstances the report shall bind the Magistrate in any manner. The report is for assistance of the Magistrate in the enquiry for granting one or various reliefs by an order under Section 12 of the PWDV Act to the aggrieved person. The words appearing in proviso to Section 12 of the PWDV Act ‗shall take into consideration‘ does not mean Magistrate has to act upon or accept the DIR. It only obliges the Magistrate to take note of the said report at the time of passing any order under Section 12 of the PWDV Act. viii) Section 13 of the PWDV Act provides that a notice of the date of hearing fixed under Section 12 shall be given by the Magistrate to the Protection Officer and the Protection Officer shall get it served by such means as may be prescribed on the respondent and on any other person as may be directed by the Magistrate within a period of 2(two) days or such further reasonable time as may be allowed by the Magistrate from the date of its receipt. The Magistrate in view of the provisions in Section 13 of the PWDV Act shall invariably serve the notice through the Protection Officer but under exceptional situations the Magistrate may also direct the notice to be served by other means. In such cases the Magistrate shall reflect in the order why such process has been adopted. However it is made clear that for failure of the Magistrate to cause the notice through the Protection Officer inadvertently or otherwise shall not render the proceeding bad in law nor shall it render unsustainable. The purpose of notice is to prohibit any decision taken in absence of the persons against whom any order may be passed and such process is an inalienable component of natural justice and the rule of law. If the notice is served properly by other means and no prejudice has been caused to the respondent for non compliance of the provisions of Section 13 of the PWDV Act the order passed under Section 12 of the of the PWDV Act cannot be held illegal without jurisdiction or unsustainable.‖ W.A. 614 2. As far as the directions given by the learned Single Judge are concerned this Division Bench is totally in agreement with the directions given and these are reaffirmed. However the issue raised by Sri A. Bhowmik learned counsel appearing for the husband is that the Magistrate passed the impugned order granting maintenance in favour of the wife without holding any inquiry and without giving any opportunity of leading evidence to the husband. We have gone through the file of the Magistrate and find that the wife filed a petition under Section 12 of the Protection of Women from Domestic Violence Act 2005 and she prayed for an order of protection under Section 18 an order of grant of residence under Section 19 and an order for grant of monetary relief under Section 20 in her favour. This complaint was received by the Court on 08.10.2013 and notice was ordered to be issued to the respondents for 24.10.2013. On this date the respondent husband appeared along with his counsel and the case was transferred to the Court of the Judicial Magistrate 1st Class Bishalgarh for disposal in accordance with law. On 11.11.2013 the parties appeared before the transferee Court and the matter was adjourned to 25.11.2013 when three of the respondents were present and two were absent. Again an adjournment was granted and the matter was adjourned to 10.12.2013. On this date three respondents were present and two were absent. Written statement was filed on behalf of the W.A. 614 respondents and the matter was adjourned to 23rd December 2013. On this date the husband was present and the other respondents were absent. The matter was adjourned to 31st January 2014. On the next date i.e. 31.01.2014 the aggrieved person was absent and all the respondents were present. The matter was again adjourned to 12.03.2014. On this date again the wife was not present. Four of the respondents were present and one respondent was absent. The case was adjourned to 31st March 2014 on which date all the parties were present and the matter was adjourned to 22.04.2014 for appearance of both the parties and hearing and necessary orders. On 22.04.2014 four of the respondents filed an application that they may be discharged from the case and husband Bacchu Miah was absent. The matter was then adjourned to 27.05.2014. All the parties were present and on this date the impugned order was passed. On behalf of the wife it was urged that she has been tortured and she only prayed for grant of monetary relief claiming Rs.9 00 000 in all. The respondents contested the allegations of mental or physical torture and it was contended that the aggrieved person wife was at liberty to come and stay in the house of the husband and therefore she is not entitled to any relief. reads as follows: The relevant portion of the order passed by the Court ―Admittedly the aggrieved person is residing with her parents presently. On the other hand the aggrieved W.A. 614 person asserted that the respondent have good source of income. Hence it is quite obvious that the respondent has reasonable earnings to maintain the aggrieved person in one financially either on monthly payment or installment payment. However considering the fact that the aggrieved person has loss her earning capacity and mental and social harassment and the damaged of her future life as well as the stigma that remained with the aggrieved person in the society I find this is a fit case to allow the prayer for monetary relief to the aggrieved Hence in view of the above I find merit in the application filed U S 12 of the Act and the relief sought by the aggrieved person is quite fair and justified. Accordingly the application U s 12 of the Act and the monetary relief U S 20 of the Act is hereby partially Thereafter the husband petitioner was directed to pay Rs.3 000 per month as monetary relief under Section 20 under the Act to the aggrieved person wife. The other respondents were discharged. On behalf of the husband it is contended by Mr. A. Bhowmik learned counsel that the Magistrate has not given any finding that the wife was subjected to domestic violence and it has been urged that in case the Magistrate wanted to pass any order he was bound to follow the procedure prescribed in Section 125 of the Code of Criminal Procedure because that is the mandate of Rule 6(5) of the Protection of Women from Domestic Violence Rules 2006. It may be mentioned that the learned Single Judge only dealt with the question as to whether it is mandatory for the Magistrate to call for the report of the protection officer and is he bound to consider such report of the protection officer while passing the order or not. W.A. 614 6. As we have already indicated hereinabove we are totally in agreement with the directions passed by the learned Single Judge in this regard. However we are not in agreement with the following observation of the learned Single Judge: ―That apart there is no averment that the petitioner was denied the opportunity of adducing evidence in support of his statements made in the written objection. Whether the respondent in a proceeding under the PWDV Act would lead evidence either to dislodge the claim of the aggrieved person within the meaning of Section 2(a) of the PWDV Act or to buttress his counter claim in the objection is entirely at the option of the respondent. The Magistrate after recording the evidence led by the aggrieved person has the duty to ask the respondent whether he would adduce any evidence or not. There is no averment in this petition that the Magistrate has denied the petitioner such opportunity.‖ Section 12 of the Act provides that either the aggrieved person or the Protection Officer or any other person on behalf of the aggrieved person may file an application to the Magistrate seeking one or more of the reliefs under the Act. The lays down the Magistrate shall consideration any domestic incident report received by him from the Protection Officer or service provider. We are in agreement with the learned Single Judge that it is not mandatory for the Magistrate to obtain this report and if there is no report he can pass an order on the basis of the averments made in the application supported by evidence. We are concerned only with the Section 20 which deals with monetary reliefs because this was the only relief which was finally claimed by the aggrieved person and granted by the Magistrate. W.A. 614 8. Section 20 reads as follows: ―20. Monetary reliefs.—(1) While disposing of an application under sub section of 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) the loss of earnings b) the medical expenses c) the loss caused due to the destruction damage or removal of any property from the control of the aggrieved person and 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. 2) The monetary relief granted under this section shall be adequate fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed. 3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance as the nature and circumstances of the case may require. 4) The Magistrate shall send a copy of the order for monetary relief made under sub section to the parties to the application and to the in charge of the police station within the local limits of whose jurisdiction the respondent resides. 5) The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub sectionUpon the failure on the part of the respondent to make payment in terms of the order under sub section the Magistrate may direct the employer or a debtor of the respondent to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent which amount may be adjusted towards the monetary relief payable by the respondent.‖ Section 23 empowers the Magistrate to pass any interim orders in respect to the reliefs which can be granted by W.A. 614 him under sections 18 19 20 21 and 22 of the Act. Section 28 of the Act provides that unless otherwise provided under the Domestic Violence Act all proceedings under sections 12 18 19 20 21 22 and 23 shall be governed by the provisions of the Code of Criminal Procedure 1973 though the Court may lay down its own procedure for disposal of such application under section 12 or under section 23(2). We are of the considered view that even where the Court decides to lay down its own procedure the said procedure must be in accordance with the rules of natural justice. The procedure cannot be such which is against the rules of natural 11. Rule 6 of the Protection of Women from Domestic Violence Rules 2006relates to applications made to the Magistrate and prescribed the form and procedure for filing such application. Sub rule of Rule 6 reads as follows : ―(5) The applications under section 12 shall be dealt with and the orders enforced in the same manner laid down under section 125 of the Code of Criminal Procedure 1973Proceedings under section 125 may be taken against any person in any district a) Where he is or b) where he or his wife resides or c) Where he last resided with his wife or as the case may be with the mother of the illegitimate 2) All evidence to such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made or when his personal attendance is dispensed with in the presence of his pleader and shall be recorded in the manner prescribed for summons cases: Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is willfully avoiding service or willfully neglecting to attend the Court the Magistrate may proceed to hear and determine the case ex parte and any order so made ma6y be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the magistrate may think just and proper. 3) The Court in dealing with applications under section 125 shall have power to make such order as to costs as may be just.‖ The procedure laid down in section 126 must be followed by the Magistrate dealing with the matter under the Protection of Women from Domestic violence Act 2005. Even where in terms of section 28(2) the Magistrate lays down his own procedure the same has to be consistent with the rules of natural justice and cannot totally deviate from the procedure laid down in section 126 of Cr.P.C because that is the mandate of the 6(5) of the Rules. From the orders passed on various dates which have been referred to above it is apparent that no evidence was W.A. 614 recorded in the presence of the petitioner and the procedure laid down in Section 126 of Cr.P.C was not followed. Aggrieved person has been defined to mean any woman who has been in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent. Domestic violence has been defined in Section 3 of the Act. It is a very wide definition. The power to grant relief under section 12 arises only when an incidents on domestic violence has taken place. As far as section 17 is concerned there is no requirement of proving domestic violence. The woman has a right to live in the shared household and she can pray for an order that she should not be evicted from the shared household even if there is no incident of domestic violence. However Protection order under section 18 can only be passed by a Magistrate if the Magistrate after hearing the respondent is prima facie satisfied that domestic violence has taken place or is likely to take place. No order under section 18 can be passed unless the Magistrate prima facie satisfies himself that either domestic violence has taken place or is likely to take place. An order of residence under section 19 can only be passed if the Magistrate is satisfied that domestic violence has taken place. As far as section 20 is concerned the Magistrate is empowered to direct the respondent to pay monetary relief to the aggrieved person and any child on W.A. 614 account of the losses suffered by the aggrieved person and any child as a result of the domestic violence. Therefore the Court will have to come to a finding that domestic violence has taken place. As far as custody orders under section 21 are concerned it will be only the welfare of the child which shall be of prime importance and domestic violence need not be proved. Compensation orders under section 22 can be passed only when domestic violence in the nature of injuries mental torture emotional distress caused by acts of domestic violence committed by the respondent are established. Section 23 empowers the Magistrate to grant interim relief. In view of the provision of section 28 of the Protection of Women from Domestic Violence Act 2005 read with Rule 6 of the rules the Magistrate must normally follow the procedure laid down in section of 126 Cr.P.C. He may however in certain cases act in accordance with the situation and he can follow procedure of his choice but such procedure must conform to the rules of natural justice. Therefore if there is no domestic incident report the Magistrate can ask for evidence from the parties and dispose of the matter invoking its powers under sectionof section 28. When there is no report of domestic violence then the aggrieved person will have to establish her case. This may be done on the basis of affidavits of the parties but if there are disputed questions of fact then the opposite parties will have the right to cross examine the witnesses. Before passing any order under W.A. 614 section 20 the Magistrate must come to the conclusion that domestic violence has taken place. In the present case we find that no such finding was arrived at by the Magistrate. Furthermore we are not in agreement with the learned Single Judge that it is the duty of the respondent to pray for an opportunity to lead evidence. Whether it is the Code of Criminal Procedure which has to be followed or a procedure which the Magistrate on his own follows that procedures must be in accordance with the rules of natural justice and no party should be condemned unheard. The evidence or other material such as the domestic inquiry report or affidavit(s) if any filed by the aggrieved person must be supplied to the respondents. The oral evidence if any must be recorded in the presence of the respondent(s) and they must be given an opportunity to lead evidence either by way of filing affidavits or by way of oral evidence. Without giving any opportunity to the respondents no order for grant of relief can be passed except an order for interim relief in terms of section 23 of the Act. In the present case in the operative portion of the order in question there is no finding that domestic violence has taken place. As already held above the proper procedure has not been followed by the Magistrate. We also find that the respondent husband was not given an adequate opportunity to put forth his case. Therefore the order under challenge is not a legal order. Normally we would have to set aside the order but W.A. 614 since the rights of a woman are involved we direct that this order shall be treated to be an interim order in terms of section 23 but we proceed to reassess the amount of maintenance awarded. 18. While assessing the maintenance the Magistrate cannot ignore the income of the husband. In the present case the husband has filed his affidavit which shows that the total income of the husband even in May 2014 is 6 712 and after his EPF contribution Life Insurance contribution Professional Tax etc. he gets salary of Rs. 5 463 per month. Therefore we are of the view that in such circumstances the Magistrate could not have awarded maintenance of Rs.3 000 per month which is more than 50% of the income of the husband. Keeping in view all these factors we modify the order dated 27.05.2014 and fix the maintenance @ 2 200 per month and further direct that this shall be treated as interim maintenance under section 23 of the We accordingly dispose of the appeal in the aforesaid terms and also issue the following directions : i) We reaffirm the directions given by the learned Single Judge which have been quoted above. ii) in cases falling under the Domestic Violence Act in terms of the section 28 of the Act and Rule 6(5) of the rules the Magistrate shall follow the laid down in the Code of Criminal Procedure 1973 for deciding petitions u s 125 of the Cr.P.C but if the Magistrate for reasons to be recorded W.A. 614 so decides it may lay down its own procedure in terms of section 28(2) but such procedure must be consistent with the rules of natural justice. iii) That before passing an order under section 20 the Court must come to the conclusion that domestic violence has taken place. iv) While granting Protection orders under section 18 the Magistrate must prima facie satisfy himself that domestic violence has taken place. v) Before passing a Residence order under section 19 the Magistrate must be satisfied that Domestic violence has taken place. vi) As far as orders under section 17 and 21 are concerned as already held above it is not necessary to establish domestic violence. vii) Even in cases of orders passed under section 22 the Magistrate can pass an order only after coming to the conclusion that domestic violence has taken place. viii) That before passing orders the respondent must be heard and a procedure consistent with the code of Criminal Procedure or the rules of natural justice must be followed. ix) Section 23 empowers the Magistrate to pass interim orders and these orders can be passed at the preliminary stages also if domestic violence apprehended or the application prima facie discloses that the respondent has committed an act of domestic W.A. 614 20. Our findings with regard to income are tentative in nature and it is for the parties to establish what is the income of the husband before the trial Court. The parties through their counsel are directed to appear before the Court below on 2nd March 2015. The Registry is directed to send the record to the learned Magistrate who shall now proceed to decide the matter and pass appropriate order u s 20 of the Protection of Women from Domestic Violence Act 2005 after following the law laid down hereinabove. A copy of this judgment shall be circulated to all the Judicial Officers in the State. JUDGE CHIEF JUSTICE W.A. 614

No one can be permitted to block electricity supply to neighbors: The High Court of Uttarakhand

Electricity is becoming a very important part of human life, especially now in the age of technology. Therefore no person has the right to prevent another from having access to electricity. This was held in the judgement passed by a single member bench of the High Court of Uttarakhand consisting of Justice Manoj Kumar Tiwari in the case of Chandan Singh v State of Uttarakhand [Writ Petition (M/S) No. 350 of 2021] on 11th June 2021. Chandan Singh, the petitioner sought relief from the High Court due to Uttarakhand Power Corporation stopping the electricity connection to his tube-well. Uttarakhand High Court explained they were not in a position to give in to the petitioner’s requests due to objections from the petitioner’s neighbor and aunt who is respondent no: 4 in this case. There exists property and familial disputes between the petitioner and respondent no: 4 and the latter objected to restoring electricity to the petitioner’s tube-well on grounds that the any electricity line would have to pass through her property and would damage her fruit bearing jamun trees. The petitioner’s counsel pointed out that using insulated wire would prevent any damage to respondent’s no: 4’s trees and alternatively that any branches touching the wires could be lopped without affecting the trees. The Court found that the respondents did not have the right to deny electricity to the petitioner’s tube well and the writ petition therefore allowed. Additionally the Joint-magistrate was instructed to ensure that no disturbance is caused while restoring the electricity connection.

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL ON THE 11TH DAY OF JUNE 2021 HON’BLE SHRI JUSTICE MANOJ KUMAR TIWARI Writ PetitionNo. 3521 Chandan Singh .....Petitioner By Mr. Bharat Singh Advocate) BETWEEN: State of Uttarakhand & others ....Respondents By Mr. Devesh Ghildiyal Brief Holder for the State of Uttarakhand respondent no. 1 Mr. N.S. Pundir Advocate for respondent nos. 2 & 3 and Mr. S.K. Mandal Advocate for respondent no. 4) JUDGMENT Respondent no. 4 is aunt of the petitioner. According to petitioner due to the objection raised by respondent no. 4 Uttarakhand Power Corporation Ltd. is not in a position to restore the electricity connection to petitioner’s tube well. By means of this writ petition petitioner has sought the following relief: “(i) a writ order or direction in the nature of mandamus commanding the respondent No. 2 & 3 to restore the electricity connection of tube well of the petitioner and supply the electricity to him forthwith for operating the Tube well of the petitioner for irrigation of his fields.” Admittedly dispute is pending between petitioner and respondent no. 4 regarding family property. Respondent no. 4 had earlier filed Writ Petition No. 1102 of 2020 for restoring 2 electricity connection to her tube well. The said writ petition was disposed of by this Court vide order dated 28.09.2020. Relevant extract of the said order is reproduced below: learned counsel “Mr. Rajveer Singh for the petitioner submits that petitioner will give an undertaking in writing before the concerned Executive Engineer Electricity Division that she will have no objection if power supply to the Tube Well of Mr. Chandan Singh S o Ved Singh is restored from the same transformer from which petitioner is supplied electricity. Mr. N.S. Pundir Uttarakhand Power Corporation Ltd. assures the Court that subject to petitioner giving such undertaking electricity connection of the petitioner would be restored as early as possible but not later than two weeks from today. He further assures the Court that power supply would also be restored to Mr. Chandan Singh S o Ved Singh within the same time from the same feeder provided he also gives an undertaking that he will not object against restoration of petitioner’s electricity connection. Petitioner is directed to furnish in writing the aforesaid undertaking within a week. Mr. Chandan Singh S o Ved Singh shall also furnish in writing the aforesaid undertaking within a week. The concerned Executive Engineer Electricity Division shall inform in writing to Mr. Chandan Singh S o Ved Singh about this order within three days from today. With the aforesaid observation writ petition is disposed of.” A perusal of the aforesaid order dated 28.09.2020 reveals that counsel appearing respondent no. 4 petitioner in Writ PetitionNo. 1102 of 2020 had assured the Court that his client will give an undertaking in writing before the Executive Engineer concerned that she will have no objection if power supply to the tube well of Chandan Singh is restored from the same transformer through which she is supplied electricity. 3 Pursuant to the order passed in Writ M S) No. 1102 of 2020 electricity connection to respondent no. 4 has been restored in view of undertaking given by her in terms of order of this Court. Mr. N.S. Pundir learned counsel respondent nos. 2 & 3 has informed the Court that his client had installed a electricity pole adjacent to the public path for restoring electricity connection to petitioner’s tube well however respondent no. 4 had damaged the electricity pole by saying that the electricity line would damage her fruit bearing trees jamun trees). He further submits that in this regard an F.I.R. has been lodged against respondent no. 4 for causing damage to the property of Uttarakhand Power Corporation Ltd. He further submits that the Joint Magistrate Roorkee vide order dated 02.03.2021 has permitted Executive Engineer Electricity Distribution Division Ramnagar Roorkee to lop the branches of the trees which may touch the line but despite the said order respondent no. 4 is not permitting restoration of electricity connection tube well of the course of arguments on 19.05.2021 petitioner’s counsel had submitted that he has no objection if insulated wire is used for restoring petitioner’s electricity connection provided respondent no. 4 agrees to bear 50% of the cost of such insulated wires which are more expensive. On 21.05.2021 learned counsel appearing for Uttarakhand Power Corporation Ltd. had apprised 4 the Court that cost of insulated wire for restoring electricity connection to the petitioner would be 62 518 . Mr. S.K. Mandal learned counsel appearing for respondent no 4 had sought time to seek instructions from his client as to whether she is willing to bear 50% of the cost of insulated wire. He has apprised the Court that his client is not willing to contribute 50% of the cost of insulated wire used in restoring electricity connection of the petitioner. 10. Such conduct of respondent no.4 cannot be appreciated. Her electricity connection was restored in terms of order of this Court passed on 28.09.2020 and her counsel had assured the Court that respondent no. 4 will have no objection if power supply to petitioner’s tube well is restored from the same transformer from which respondent no. 4 would be supplied electricity. 11. Mr. N.S. Pundir learned counsel respondent nos. 2 & 3 has informed the Court that respondent no. 4 had given an undertaking before Executive Engineer in terms of order of this Court that she will have no objection in restoration of electricity connection of the petitioner. 12. In such view of the matter it is not now open to respondent no. 4 to raise objection against restoration of electricity connection of the petitioner. Even otherwise also electricity has become a necessity now a days and no one can be permitted to block electricity supply to his neighbours. 5 13. Accordingly the writ petition is allowed and Executive Engineer Electricity Distribution Division Ramnagar Roorkee is directed to restore electricity connection to the tube well of the petitioner as early as possible but not later than ten days from today. 14. The Joint Magistrate Roorkee or any officer authorized by her not below the rank of Tehsildar shall remain present on the spot along with adequate police force to ensure that no disturbance is caused while restoring electricity connection to the tube well of the petitioner.

Non-consideration of mandatory requirements vitiates the bail order: Rajasthan High Court

Non-consideration of the mandatory requirement of Section 37 of the NDPS Act can debase the actual meaning of a bail order. Recording a satisfaction under the provision is imperative before granting bail to a person accused of the offence under the NDPS Act and failure to do so, would violate the mandatory requirement of the statute and thereby vitiate the bail order. This proclamation was upheld by the Rajasthan High Court presided by J. Sandeep Mehta in the case of Kayum & anr. Vs. State of Rajasthan [S.B. Criminal Miscellaneous Bail Application No. 95/2021]. The SHO, Police Station Lohawat received a source information regarding transportation of narcotics in a car on which, a nakabandi was undertaken at the Jodhpur-Phalodi Road near the Panchayat Samiti, Lohawat. As the car was suspected to be carrying narcotics, its search was undertaken and five plastic packets were found concealed, containing opium weighing 1 Kg, 700g brown coloured powder suspected to be heroin and country-made pistol without licence with 40 cartridges of 7.65 mm. The instant bail application has been filed on the ground that the Seizure Officer admitted in his cross- examination that each of the accused had an equal share in the recovered brown sugar and thus, the net weight of the brown sugar attributable to each accused would be 175 g which is below commercial quantity. The bail application had been filed on behalf of the petitioners who are in custody in connection with F.I.R. No.144/2019, registered at Police Station Lohawat, District Jodhpur for the offences under Sections 8/18, 8/21 & 8/29 of the NDPS Act and Section 3/25 of the Arms Act. It was further contended that the bail applications of similarly situated co-accused have been accepted by Coordinate Bench of this Court and thus, the petitioners also deserve indulgence of bail under Section 439 Cr.P.C. on parity. The honorable court held, “In wake of the discussion made herein above, this Court is of the firm opinion that there are no reasons on the record of the case which can persuade the Court to record the mandatory finding in terms of Section 37(b)(2) of the NDPS Act.” The court further contended, “On going through the orders passed by the Coordinate Bench of this Court on the bail applications of the co-accused Iqbal and Toshib, it is clear that satisfaction mandated by Section 37 of the NDPS Act has not been recorded before granting bail to the accused. As a consequence of the above discussion, this Court is not inclined to extend indulgence of bail to the petitioners under Section 439 Cr.P.C. and hence, the Bail Application No.95/2021 stands dismissed as being devoid of merit.”

on 07 02 2021 at 03:20:59 PM HIGH COURT OF JUDICATURE FOR RAJASTHAN ATJODHPURS.B. Criminal Miscellaneous Bail Application No. 95 20211. Kayum S o Gani Mohammed Aged About 45 Years ByCaste Musalman R o Laduna Police Thana Seemamau Mandsor Madhya Pradesh.: Mr. B.R. Godara.Mr. R.N. Bishnoi.For Respondent(s): Mr. B.R. Bishnoi AGC.HON BLE MR. JUSTICE SANDEEP MEHTAOrder25 01 2021Reportable1.Two bail applications have been filed on behalf of theaccused Kayum. Shri R.N. Bishnoi Advocate who presented theBail Application No.94 2021 on behalf of the accused Kayum after[CRLMB 95 2021]submission of the bail application No.95 2021 by Shri B.R.Godara prays that he may be allowed to withdraw the same.Accordingly the Bail Application No.94 2021 is dismissed aswithdrawn.2.The bail application No.95 2021 has been filed on behalf ofthe petitioners Kayum and Jabbar Husain who are in custody inconnection with F.I.R. No.144 2019 registered at Police StationLohawat District Jodhpur for the offences under Sections 8 18 8 21 & 8 29 of the NDPS Act and Section 3 25 of the Arms Act.3.Brief facts relevant and essential for disposal of the case arenoted herein below:4.The SHO Police Station Lohawat received a sourceinformation regarding transportation of narcotics in a car onwhich a nakabandi was undertaken at the Jodhpur Phalodi Roadnear the Panchayat Samiti Lohawat. At about 06.45 pm. an AltoCar No.MP 09 WB 0640 came near the nakabandi and was flaggeddown. Four persons were present in the car namely Iqbal Kayum Toshib and Jabbar Husain. As the car was suspected to be carryingnarcotics its search was undertaken. On opening the hood of thecar just underneath the dashboard five plastic packets werefound concealed. The first packet was containing opium weighing1 Kg. The second packet was containing brown coloured powdersuspected to be heroin which weighed 700 gms. with thepackaging. The third packet contained a country made pistolwithout licence. The fourth packet contained 40 cartridges of 7.65mm. each and the fifth packet was containing 10 cartridges of 8mm. each. On the basis of the above recovery FIR No.144 2019[CRLMB 95 2021]came to be registered against the petitioners and two others forthe offences under Sections 8 18 & 21 of the NDPS Act andSection 3 25 of the Arms Act.5.The instant bail application has been filed on the ground thatthe Seizure OfficerSunil Tada admitted in his cross examination that each of the accused had an equal share in therecovered brown sugar and thus the net weight of the brownsugar attributable to each accused would be 175 gms. only whichis below commercial quantity. Learned counsel has further urgedthat the Seizure Officer breached the mandatory requirement ofSection 50 of the NDPS Act as the third option for search wasgiven to the accused. It was further submitted that as the searchand seizure was undertaken after sunset the investigating officerwas under an obligation to comply with the mandatoryrequirement of Sections 41 and 42 of the NDPS Act which werenot followed and thus the entire search and seizure proceedingsare vitiated. It was further contended that percentage of morphinehas not been mentioned in the FSL report while examining thesample of brown sugar and as such no conclusion can be drawnthat the recovered contraband smack heroin brown sugar fallswithin the meaning of manufactured drug as defined in Section2(xvi) of the NDPS Act. It was further contended that the bailapplications of similarly situated co accused Iqbal and Toshib havebeen accepted by Coordinate Bench of this Court and thus thepetitioners also deserve indulgence of bail under Section 439Cr.P.C. on parity. [CRLMB 95 2021]6.Learned Public Prosecutor on the other hand vehementlyand fervently opposed the submissions advanced by thepetitioners’ counsel. He pointed out that the recovery ofcontraband was effected from a vehicle in transit and thus provisions of Section 50 of the NDPS Act would have noapplication because it is not a case involving recovery ofcontraband during personal search of the accused. It was furthersubmitted that as the recovery was from a vehicle in transit provisions of Section 43 of the NDPS Act would operate and therewas no requirement for the Seizure Officer to comply with theprovisions of Section 50 of the NDPS Act or to record theinformation and to forward the same to the superior officer or toobtain a warrant or authorisation before conducting the search. Hefurther submitted that 700 gms. of heroin was recovered carefullyconcealed under the hood of the car which is a manufactured drugfor which punishment is provided under Section 21 of the NDPSAct. As diacetyl morphine was detected by the Forensic ScienceLaboratory after analysis of the drug in question there was norequirement to mention the percentage of morphine therein.Learned Public Prosecutor thus urged that the petitioners do notdeserve indulgence of bail.7.I have given my thoughtful consideration to the submissionsadvanced at bar and have gone through the material available onrecord.8.Firstly I would like to advert to the mandatory provision ofbail postulated under Section 37 of the NDPS Act which reads asbelow:[CRLMB 95 2021]“37.Offences to be cognizable and non bailable.—every offence punishable under this Act shall becognizableno person accused of an offence punishable for2[offences under section 19 or section 24 or section27A and also for offences involving commercialquantity] shall be released on bail or on his own bondunless— i) the Public Prosecutor has been given anopportunity to oppose the application for suchrelease and(ii) where the Public Prosecutor opposes theapplication the court is satisfied that there arereasonable grounds for believing that he is notguilty of such offence and that he is not likely tocommit any offence while on bail.(2) The limitations on granting of bail specified in clauseare in addition to the limitations under theCode of Criminal Procedure 1973or any otherlaw for the time being in force on granting of bail.Hon’ble the Supreme Court has on more than one occasions considered the aspect of bail under the NDPS Act whencommercial quantity of contraband is involved and it has beenheld that the scheme of Section 37 of the Act indicates that theexercise of power to grant bail is not only subject to thelimitations contained under Section 439 of the Code of CriminalProcedure but is also subject to the limitation placed by Section37 of the Act which commences with a non obstante clause. Theoperative part of the said Section is in the negative formproscribing the enlargement of bail to any person accused ofcommission of an offence under the Act unless the twin conditionsare satisfied. Before granting bail to an accused arrested in[CRLMB 95 2021]connection with recovery of commercial quantity of narcotic drugs the Court has to record the findings mandated by Section 37 ofthe NDPS Act which is a sine qua non for grant of bail. This aspectregarding compliance of mandatory requirement of the NDPS Actwas considered by Hon’ble the Supreme Court in the followingCases:(i) State of Kerala & Ors. vs. Rajesh & Ors. reported in AIR2020 SC 721Union of India vs. Ratan Malik reported inNarcotics Control Bureau vs. Kishan Lal & Ors. reported in AIR 1991 SC 558Union of India vs. Shiv Shanker Kesari reported in(2007)7 SCC 798 and(v) Intelligence Officer Narcotics C. Bueau vs. SambhuSonkar & Ors. Control reported in AIR 2001 SC 830.In all these cases Hon’ble the Supreme Court laid down thatconsidering the parameters under Section 37 of the NDPS Act andrecording a satisfaction in light thereof is mandatory before grantof bail to an accused arrested in connection with the commercialquantity of narcotic drugs or psychotropic substances. In all thesecases except the case of Kishan Lalthe bail granted tothe concerned accused by the High Court was cancelled onaccount of non consideration of the mandatory requirement ofSection 37 of the NDPS Act. It can thus be culled out thatrecording a satisfaction under Section 37 of the NDPS Act isimperative before granting bail to a person accused of the offenceunder the NDPS Act and failure to do so would violate the[CRLMB 95 2021]mandatory requirement of the statute and thereby vitiate the bailorder. 9.On going through the orders passed by the Coordinate Benchof this Court on the bail applications of the co accused Iqbal andToshib it is clear that satisfaction mandated by Section 37 of theNDPS Act has not been recorded before granting bail to theaccused.10.So far as the submission of the petitioners’ counsel that thepercentage of morphine is not mentioned in the Forensic ScienceLaboratory report is concerned suffice it to say that as therecovered contraband is heroin which is a manufactured drugwithin the meaning of Section 2(xi) of the Act only requirementfor the FSL would be to detect the presence of diacetyl morphinetherein as per serial No.56 of the table under the NDPS Act whichis indicated positively in the FSL report.11.The contention of the learned counsel representing thepetitioners that the admission made by the Seizure Officer incross examination would indicate that each accused was having ashare of 175 gms. of smack heroin and 250 gms. of opium fromthe total recovered contraband suffice it to say that all the fouraccused who are residents of Madhya Pradesh were travelling inthe same car. The contraband substances were recovered in bulkconcealed under the hood of the car and not from individualpossession of the accused. The admission which was elicited fromthe Seizure Officerwas in answer to the suggestion givenby the defence counsel that the accused in their interrogation[CRLMB 95 2021]notes disclosed that they had equal shares in the recoveredcontraband. Suffice it to say an interrogation note of the accusedas recorded by the police officer is hit by Section 25 of theEvidence Act and is not admissible in evidence for any purposewhatsoever. Section 35 of the NDPS Act lays the issue beyonddiscussion.12.The contention of the learned counsel for the petitioners thatthe seizure is vitiated on account of non compliance of Section 50of the NDPS Act suffice it to say that seizure was made from thevehicle while in transit and not during the personal search of anindividual and thus Section 50 of the Act would not be applicableand the search and seizure which was obviously made whileexercising powers under Section 43 of the NDPS Act cannot becalled in question.13.In wake of the discussion made herein above this Court is ofthe firm opinion that there are no reasons on the record of thecase which can persuade the Court to record the mandatoryfinding in terms of Section 37(b)(2) of the NDPS Act which readsas below:“37(b)(2) where the Public Prosecutor opposes theapplication the court is satisfied that there are reasonablegrounds for believing that he is not guilty of such offence andthat he is not likely to commit any offence while on bail.”14.As a consequence of the above discussion this Court is notinclined to extend indulgence of bail to the petitioners under[CRLMB 95 2021]Section 439 Cr.P.C. and hence the Bail Application No.95 2021stands dismissed as being devoid of merit.15. A copy of this order be placed in each file.(SANDEEP MEHTA) J14 Tikam

Nobody has a fundamental right to a public holiday: Bombay High Court

Public holidays are a matter of public policy and cannot be availed as a matter of violation of fundamental rights as the Bombay High Court rightfully observed that in the writ petition impugning the notification issued in October 2021 that did not declare 02.08.2022 as a public holiday and directing the respondent to issue a notification every year to declare 2nd August of every year as a public holiday celebrating the liberation of Dadra and Nagar Haveli by the division bench of Justice Gautam Patel and Justice Madhav Jamdar in the case of KISHNABHAI NATHUBHAI GHUTIA & Anr V. THE HON’BLE ADMINISTRATOR UNION TERRITORY & Ors [WRIT PETITION NO. 9602 OF 2021] In the present case the petitioner sought relief to get August 2 of every year to be declared as a public holiday because it marks the liberation of Dadra and Nagar Haveli and it was permitted as a public holiday from 1954 to 2020. Comparisons were drawn by the petitioner between Independence Day i.e., 15th August and how it is similar to the independence of Dadra and Nagar Haveli. References were also made to the 2019 order of Bombay High Court Division Bench that declared Good Friday as a gazetted holiday that was also applicable to Union Territory of Daman and Diu and Dadra and Nagar Haveli to which the court stated that considering both the cases stand on different footings, they cannot declare 2nd August as a Public Holiday. The Bombay High Court here observed that in this case there is no legally enforceable right that can be said to be infringed as Public Holiday is nobody’s Fundamental right and during these times, we should rather focus on reducing the number of public holidays and not increasing them and rejected the petition seeing no substance. Public holidays are a matter of government policy and we should not think of claiming them as a matter of right, it should be totally left to the government whether to declare a particular day as a public holiday or not except for 3 days that are Independence Day that is on 15th August, Republic Day on 26th January and Gandhi Jayanti that is on 2nd October because these 3 days have statutory backing as they are gazetted holidays. If we start to recognize every occasion as a holiday then there will be far too many holidays. India is a very diverse country with a vast population and a very large territory, while it is important to value everyone’s sentiments, it is not feasible to give out a public holiday for every occasion. Moreover, these petitions requesting a direction to get a certain day declared as a public holiday has no legal backing under any act. There are many ways of celebrating a special occasion and it is not necessary that you have to take an off on that particular day and neither does not declaring the day as a leave deprives anyone of the right to celebrate the special occasion as no right is absolute in nature.

25 ASWP 9602 2021.DOC IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9602 OF 2021 Kishnabhai Nathubhai Ghutia & Anr The Hon’ble Administrator Union Territory & Mr Bhavesh Parmar with Devmani Shukla Rajesh Sahani & Reshma Nair i b Devmani Shukla for the Petitioners Mr Saurabh Kshirsagar i b H Venegavkar for the Respondents CORAM G.S. Patel Madhav J. Jamdar JJ 5th January 2022 The Writ Petition seeks the following reliefs Rule be issued Digitally signed by For a writ or an order in the nature of a writ declaring that the impugned notification issued in the month of October 2021 declaring public holidays for year 2022 is bad and illegal to the limited extent of not declaring as public holiday 02.08.2022 which is the Liberation Independence Day of Dadra & Nagar Haveli 5th January 2022 25 ASWP 9602 2021.DOC For a writ or an order in the nature of writ directing the respondents to issue a notification this yearand every year hereinafter declaring 02 August of each year as public holiday for the purpose of celebrating the Liberation Independence Day of Dadra & Nagar Haveli Pending hearing and final disposal of the present Writ Petition for an order of this Hon’ble Court directing the respondents to issue a notification this yearand every year hereinafter declaring 02 August of each year as public holiday for the purpose of celebrating the Liberation Independence Day of Dadra & Nagar Haveli.” 2nd August 1954 was the date when the Union Territories of Dadra and Nagar Haveli gained “Liberation Independence” from Portuguese rule and became part of the territory of India. From 1954 to 2020 2nd August was permitted as a public holiday on account of Liberation or Independence. This was discontinued on 29th July It is submitted that if other similar date as 15th August can be declared as public holiday for national Independence then there is no reason why 2nd August should not be declared a public holiday for Dadra & Nagar Haveli Our attention is drawn to an order passed on 15th April 2019 of a Division Bench of this Court. That also pertained to Union Territories of Dadra and Nagar Haveli. Good Friday was then listed as a restricted i.e. an optional holiday but not a gazetted holiday The argument was that there was that taking into account the population of Christians in the area it was decided not to declared 5th January 2022 25 ASWP 9602 2021.DOC Good Friday as a gazetted holiday. Observing that Christmas and similar holidays are widely celebrated the Division Bench disposed of the PIL by directing the Administrator to declare Good Friday as a gazetted holiday in the Union Territories of Diu Daman Dadra and Nagar Haveli. That order stands on a different footing from the present case. That PIL was about the failure to gazette i.e. make compulsory a public holiday rather than keep it optional. 6. Whether or not to declare a particular day as a public holiday or an optional holiday or no holiday at all is as a matter of government policy. There is no legally enforceable right that can be said to have been infringed. Nobody has a fundamental right to a public holiday. As it is we have far too many public holidays in this country. Perhaps the time has come to reduce not increase the number of public holidays. 7. We do not see any substance in the Petition. It is rejected There will be no order as to costs All concerned will act on production of a digitally signed copy of this order Madhav J. Jamdar J 5th January 2022

Annual Increase method in determining value may have pitfalls when gap exceeds 4-5 years: Supreme court

On an appeal regarding the method of calculation of market value, the court held that the annual increase method shall not be discarded but be exercised with caution. This judgment was passed in the case of Ved & Anr. vs. State of Karnataka [C.A.No.1158/2021], by a Triple Bench consisting of Hon’ble Justice Uday Umesh Lalit, Hon’ble Justice Indira Banerjee And  Hon’ble Justice K.M. Joseph. The proceedings for acquisition of land were initiated vide the notification under section 4 read with section 17(2)(c) of the Land Acquisition Act, 1984 (the Act) for setting up phase V of the Industrial Model Township with industrial, commercial, recreational and other public facilities. The notification under section 4 was allowed vide declaration under section 6 of the Act. By an award passed by the Land Acquisition Collector, the land was assessed at Rs. 12.50 Lakhs per acre. The Reference Court assessed the compensation at the rate of Rs.50,43,315/- per acre in respect of the villages other than village Manesar. The acquiring body-HSIDC as well as some landholders aggrieved by the decision filed an appeal in the High Court. The High Court assessed the market value in respect of lands falling in two of the villages at Rs.48,46,000/- per acre, and of lands falling in other four villages the market value was assessed at Rs.43,61,400/- per acre. To assess the market value of the 15% cut was applied to the first two villages and a 10% cut for the other four villages. Being aggrieved by the same, the appeals were preferred by the landholders. The scope of the appeal was limited to the question of whether the landholders are eligible for the enhancement of compensation. The supreme court after hearing both the parties concerned observed that in order to decide on the enhancement of compensation the Court will first have to look into whether the method of annual increase over the values determined in connection with the acquisition for phases II, III, and IV, any advantage could be conferred upon the landholders. The Supreme Court observed that the process of determining the value by annual increase was considered as one of the alternatives in the case of Wazir and Another vs. State of Haryana. In the same case, three methods including one relating to the cumulative annual increase were considered and that method which led to the highest valuation was adopted. However, the law laid down in the ONGC Ltd. case was, in case one goes by the method of cumulative annual increase it would mean that cumulative increase over the valuation must displace the valuation based on Sale Deed, which is normally the safest method.

1 REPORTA BLE IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL No(s). 11521 out of Special Leave PetitionNo.245218) VED & ANR. …APPELLANTS STATE OF HARYANA & ANR. …RESPONDENTS CIVIL APPEAL No(s). 11521 out of Special Leave PetitionNo. 302318) CIVIL APPEAL No(s). 1160 11921 out of Special Leave PetitionNos. 3431 34619) CIVIL APPEAL No(s). 1198 12121 out of Special Leave PetitionNos. 31256 312618) CIVIL APPEAL No(s). 1211 12121 out of Special Leave PetitionNos. 31770 317718) CIVIL APPEAL No(s). 1219 12221 out of Special Leave PetitionNo(s). 5753 57621) Diary No.320018) CIVIL APPEAL No(s). 12221 out of Special Leave PetitionNo(s). 302318) 2 WITH WITH WITH CIVIL APPEAL No(s). 12221 out of Special Leave PetitionNo.302318) CIVIL APPEAL No(s). 12321 out of Special Leave PetitionNo. 302318) CIVIL APPEAL No(s). 12321 out of Special Leave PetitionNo. 32619) CIVIL APPEAL No(s). 1232 12321 out of Special Leave PetitionNos.3273 32719) CIVIL APPEAL No(s). 1234 12421 out of Special Leave PetitionNos.3266 32719) CIVIL APPEAL No(s). 1241 12421 out of Special Leave PetitionNos.3247 32419) CIVIL APPEAL No(s). 1243 12421 out of Special Leave PetitionNos.3251 32519) CIVIL APPEAL No(s). 1249 12521 out of Special Leave PetitionNo(s). 5762 57621) Diary No.370818) CIVIL APPEAL No(s). 12521 out of Special Leave PetitionNo.32019) CIVIL APPEAL No(s). 1252 12521 out of Special Leave PetitionNo(s). 5764 57621) Diary No.370918) CIVIL APPEAL No(s). 12521 out of Special Leave PetitionNo(s). 57621) Diary No.389318) 3 CIVIL APPEAL No(s). 1255 12721 out of Special Leave PetitionNo(s). 5767 57821) Diary No.394718) CIVIL APPEAL No(s). 1273 12721 out of Special Leave PetitionNos.3241 32419) CIVIL APPEAL No(s). 1279 12821 out of Special Leave PetitionNo(s). 5785 57821) Diary No.423818) CIVIL APPEAL No(s). 12821 out of Special Leave PetitionNo.34619) CIVIL APPEAL No(s). 12821 out of Special Leave PetitionNo.34819) CIVIL APPEAL No(s). 1283 12821 out of Special Leave PetitionNos.3470 34719) CIVIL APPEAL No(s). 1288 13021 out of Special Leave PetitionNo(s). 5787 58021) Diary No.440118) CIVIL APPEAL No(s). 13021 out of Special Leave PetitionNo(s). 58021) Diary No.474718) CIVIL APPEAL No(s). 13021 out of Special Leave PetitionNo(s). 58021) Diary No.63519) CIVIL APPEAL No(s). 13021 out of Special Leave PetitionNo(s). 58021) Diary No.65119) 4 CIVIL APPEAL No(s). 13021 out of Special Leave PetitionNo(s). 58021) Diary No.89719) CIVIL APPEAL No(s). 13021 out of Special Leave PetitionNo(s). 58021) Diary No.89819) CIVIL APPEAL No(s). 13021 out of Special Leave PetitionNo(s). 58021) Diary No.90119) CIVIL APPEAL No(s). 1309 13121 out of Special Leave PetitionNo(s). 5809 58121) Diary No.100219) CIVIL APPEAL No(s). 13121 out of Special Leave PetitionNo(s). 58121) Diary No.114919) CIVIL APPEAL No(s). 13121 out of Special Leave PetitionNo.107819) CIVIL APPEAL No(s). 1313 13121 out of Special Leave PetitionNo(s). 5812 58121) Diary No.219119) CIVIL APPEAL No(s). 13121 out of Special Leave PetitionNo(s). 58121) Diary No.266419) 5 JUDGMENT Uday Umesh Lalit J. Delay condoned. Permission to file Special Leave Petitions granted. Leave to appeal granted in all matters. These appeals challenge the Judgment and Order dated 25.05.2018 passed by the High Court1 based on which the individual appeals were disposed of. The facts leading to the instant appeals in brief are as under: A) The proceedings for acquisition of lands were initiated vide Notification dated 17.09.2004 issued under Section 4 read with Section 17c) of the Act2 for the purpose of setting up Industrial Model Township Phase V Manesar Gurgaon for the development of an integrated complex for industrial commercial recreational and other public utilities. B) The aforesaid Notification was followed by Declaration dated 27.10.2004 issued under Section 6 of the Act. The land covered by the 1 High Court of Punjab & Haryana At Chandigarh in RFA No.33813and other connected appeals. 2 The Land Acquisition Act 1894 Declaration admeasured 956 acres 5 Kanals 18 Marlas the details of which as 6 tabulated by the High Court were: Villages Nawada Fatehpur Kanal Marla Naharpur Kasan 43B 9B Total 7653 18 Or 956 Acre 5 Kanal 18 Marla” C) By Awards dated 09.03.2006 the Land Acquisition Collector assessed the market value of the lands at the rate of Rs.12.50 lakhs per acre. D) While dealing with References preferred by the landholders the Reference Court assessed the compensation at the rate of Rs.50 43 315 per acre in respect of the villages other than village Manesar. Exhibit P 20 Sale Deed relied upon by the landholders was considered by the Reference Court as under: “… Sale deed Ex.P20 pertains to village Naharpur Kasan and sale deed Ex.P24 pertains to village Naurangpur. I have gone through the sale deed Ex.P20. In the considered opinion of this Court the sale deed Ex.p20 does not depict the true market value of the land. 96 kanals 13 marlas of land 7 was sold for a total sale consideration of Rs.13 62 00 000 on 28.04.2004. The price per acre comes to Rs.1.07 crores. A close scrutiny of the sale deed shows that the sale deed was not only with regard to land. There is an assertion in the sale deed Ex.P20 that the first party had good and marketable title to the industrial land and industrial building which consisted of basement ground floor first floor and second floor and was desirous of selling its rights title interest and liens in the industrial land and the building structures and machinery imbedded in the earth. Two schedules were also attached with the sale deeds. Schedule I gives the area of the land and Schedule II gives the constructed area machinery etc which includes canteen kitchen offices 7 air handling units air cooling units centrifugal chillers comprising of 400 tons each LAN networking with extensive cabling fire fighting structure etc. The price was therefore for the entire plant and not for the land alone.” E) The Acquiring Body namely HSIDC3 as well as some landholders being aggrieved filed appeals in the High Court. F) The High Court assessed the market value in respect of lands falling in villages Naurangpur and Lakhnoula at Rs.48 46 000 per acre and in respect of lands falling in villages Nawada Fatehpur Naharpur Kasan and Shikohpur the market value was assessed at Rs.43 61 400 per acre. It relied on Sale Deed Exhibit P 13 where the land was having frontage on the National Highway No.8 and after granting 12% enhancement it arrived at the figure of Rs.57 01 066 whereafter 15% cut was applied to assess the market value at 3 Haryana State Industrial Development Corporation Ltd. 4 Haryana State Industrial and Infrastructure Development Corporation Ltd. 8 Rs.48 45 907 for the lands from villages Naurangpur and Lakhnoula falling on the Highway. Since the lands from villages Shikohpur Nawada Fatehpur and Naharpur were away from the Highway a further cut of 10% was adopted to arrive at the figure of Rs.43 61 400 per acre for those three villages. The High Court relied upon the assessment made by it in Madan Pal III vs. State of Haryana5. The relevant discussion was: “71. The other instance which can be kept into mind is Ex.P13 dated 27.08.2003 for 8 kanals 8 marlaswhich was executed in favour of M s Reliance Industries Limited falling in the limits of Lakhnoula. The frontage was on the National Highway No.8 of southern side itself as per description of the plot and the sale deed in question is more than a year prior in point of time. Keeping in view the growth factor and the potentiality of the land in question which has been discussed in the evidence above that the IMT Manesar was being developed since the year 1994 in the vicinity and market value had already been assessed @ Rs.20 lakhs per acre at that point of time and for the year 2002 the market value had been assessed @ `41.40 lakhs per acre for adjoining village Naharpur Kasan the pressure of building activity was immense and pace of progress was rapid. The industries had been built up and exempted from acquisition which has been shown in blue colour in the site plans. The distance to Manesar was only 2 Km away where the main activities were taking place. Gurgaon city was only 11 Kms situated on the other side and the overall picture that can be drawn up was that there was certainable trend of development from both sides towards the land in question. The site plan showed that the land was 5 SCC OnLine P&H 2871 9 in view for which these circumstances situated in more advantageous location and the potentiality was immense. 72. enhancement of 12% would be required on the sale deed land which was the value of Rs.50 90 238 . The 12% benefit is `6 10 828 and per acre value works out to Rs.57 01 066 per acre. As noticed Ex.P13 is of one acre of land and therefore the smallness of the plot is not applicable in the facts and circumstances as one acre of land falling on the highway cannot be said to be a small portion of land. The description also shows that it had a 75.8 meter frontage on the highway as per the dimensions given and accordingly this Court is of the opinion that a 15% cut for development would be appropriate in the facts and circumstances which is liable to be put to assess the market value which comes to Rs.8 15 159 . Thus reducing it from `57 01 066 the market value works out to Rs.48 45 907 per acrefor the land falling in village Naurangpur and village Lakhnoula which are abutting the highway. The sale exemplar being of higher value is thus being preferred over Ex.P7 which is not falling on the Highway also. 73. In similar circumstances in Chakas Vs. State of Punjab and others 2011SCR 618 when the land was being acquired for setting up of industry and infrastructure it was held that the deduction of 50% of value towards the development charges was not justified by the Reference Court. It was noticed that the land was to be used for the industrial unit for which it was being acquired and therefore 10% reduction was upheld. It is pertinent to notice here also that acquisition 74. was for mixed purpose and the Corporation is going to recover the costs as such from the eventual allottees and therefore 15% reduction would be justified in the facts and circumstances. 75. In Kasturi Vs. State of Haryana 2003SCC 354 the 20% cut was applied when 84.23 acres was acquired 10 for development of residential and commercial area in Bhiwani. The argument that there should be no reduction was repelled by noticing that the sale exemplar was of 3 kanals of land located on the main road itself and resultantly the 20% cut was applied by the Single Judge and which had been upheld by the Division Bench was also kept intact. 76. As noticed that the land which was acquired in the year 2002 is further away and closer to Manesar and away from Gurgaon the market value of which has been assessed @ Rs.41.40 per acre for village Naharpur Kasan and other villages of the compact block in Madan Palon 09.03.2018. The earlier development having taken place in and around village Manesar it being the hub of development and the IMT Manesar coming around it on the first account way back in the year 1994 the value of land of village Manesar and its surrounding were a relevant factor whereby the industry concerned on an earlier occasion namely M s Kohli Holding Pvt. Ltd. has been given a higher rate. Therefore though the present land might be falling closer to Gurgaon as such but away from the hub of development which is taking place at Manesar cannot be equated with same compensation which has been given to M s Kohli Holdings Pvt. Ltd and the landowners of village Manesar. The acquisition is of 2½ years later and therefore keeping in view the said factors also in mind compensation for the land falling closer to the town of Gurgaon would be liable to be granted which was granted in the earlier acquisition for the land further away and therefore the assessment which has been made @ `48 45 907 per acre rounding it off to Rs.48 46 000 per acre) would be a much appropriate market value. 77. For the land of other villages i.e. Nawada Fatehpur Naharpur Kasan Shikohpur an other 10% is liable to be reduced on the said compensation assessed and therefore the market value is assessed @ Rs.43 61 317 per acrefor the said villages. From the evidence of witnesses discussed above it would be clear that village Nawada Fatehpur and Shikohpur are at a distance from the highway. Nawada Fatehpur is at a distance of 4 5 Kms and Shikohpur is situated where the land 11 was acquired for CRPF and also situated behind Naurangpur and not abutting the National Highway. 78. The evidence which is on record upon which one can safely fall back in the present set of cases is in the form of the 2 sale deeds in M s Conway Developers Ltd.in one set of cases which show that the market value was Rs.57 60 000 per acre in village Naurangpur. But as noticed above the location has not been specifically brought to the notice of this Court though an application for additional evidence has been filed bringing on record the site plans. One witness PW has deposed that it is abutting the main Highway and appropriate cut has thus to be fixed upon the same and especially since the land was towards Gurgaon as noticed and abutting the Highway. Thus if a 15% cut is given on the same on account of locational advantage it would work out Rs.8 64 000 and the market rate would be Rs.48 96 000 per acre which is around the same price as is being fixed @ Rs.48 46 000 per acre.” the appeals of “79. Resultantly the appeals of the HSIIDC are allowed landowners for further enhancement and cross objections for enhancement which are filed are dismissed and the awards passed by the Reference Courts are accordingly modified. i) The market value of the land falling in two villages namely Naurangpur and Lakhnoula assessed @ Rs.48 46 000 per acre alongwith all statutory benefits on 17.09.2004. ii) For the land falling in villages Nawada Fatehpur Naharpur Kasan and Shikohpur the market value is fixed @ Rs.43 61 400 per acre along with all statutory benefits on 17.09.2004. G) The operative part of the directions issued by the High Court was: 12 iii) The directions of the Apex Court in the case of Pran Sukh6 will also be adhered to while disbursing the balance amount of compensation. iv) Where appeals have been filed by the land owners which were beyond period of limitation and applications have been filed for condoning the delay with a condition that the land owners will not be entitled for the interest during the said period the Executive Court shall ensure that the amounts are calculated and disbursed keeping in the view the said condition which have been passed in the case of each individual land owner.” Being aggrieved these appeals have been preferred by the landholders. No appeal has been preferred by the State or the Acquiring Body and thus the scope of instant appeals is limited to consider whether the landholders are entitled to any enhancement in compensation. It must be stated at the outset that with regard to Phases II III and IV of the Industrial Model Township Manesar Gurgaon acquisition proceedings were initiated in respect of lands falling in villages Naharpur Kasan Kasan Bas Kusla Bas Haria Dhana and Manesar by issuing Notifications dated 06.03.2002 07.03.2002 and 26.02.2002 under Section 4 of the Act. The High Court vide its decision dated 09.03.2018 in Madan Pal III vs. State of Haryana5 assessed the market value in respect of lands from villages Naharpur 6 11 SCC 175 13 Kasan Kasan Bas Kusla Bas Haria and Dhanaat Rs.41.40 lakhs per acre while the value for lands from village Manesar covered by Phase IV) was assessed at Rs.62.10 lakhs per acre. The appeals arising therefrom were decided by this Court vide its Judgment dated 11.01.20197 as modified by Order dated 08.02.20198 in Civil Appeal Nos.264 270 of 2019 and other connected matters i.e. after the decision of the High Court which is presently under appeal. The relevant operative directions issued by this Court were: In the circumstances we direct: “32. In respect of lands under acquisition from 32.1 Villages Naharpur Kasan and Kasan the market value shall be Rs.39 54 666 per acre. Additionally all statutory benefits would be payable. 32.2 In respect of lands under acquisition from Villages Bas Kusla Bas Haria and Dhana the market value shall be Rs.29 77 333 per acre. Additionally all statutory benefits would be payable. 32.3 In respect of lands from Village Manesar the market value shall be Rs.59 31 999 lakhs per acre. Additionally all statutory benefits would be payable.” 713 SCC 101 8 13 SCC 123 14 In these appeals it was submitted on behalf of the landholders that: The lands from villages Naurangpur Lakhnoula and Shikohpur being abutting National Highway No.8 towards Delhi and closer to Gurgaon than the lands from villages like Manesar the lands from these villages were on a better The lands had immense potentiality for residential and commercial purposes being surrounded by many reputed Industrial Units Resorts Hotels Certain Sale Deeds including Exhibit P.20 executed on 28.04.2004 showed value greater than what was assessed by the High Court. Even if the valuation determined in Wazir and Another vs. State of Haryana7 be taken as the base after conferring cumulative increase for a period of 2 ½ years the appropriate valuation for lands from village Naharpur and Farm houses. Kasan would be: 15 “Notification dated awarded to Naharpur Yearly increment Cumulative Interest for the period 2 years 6 months and 11 Rs.39 54 666 per 48 08 795 50 39 544 52 787 392” On the other hand it was submitted by the State that the valuation arrived at and the discussion by the High Court on the point did not call for any interference. In the instant case the High Court considered Exhibit P13 concerning an extent of land admeasuring 8 Kanals and 8 Marlas in the limits of Village Lakhnoula and two Sale Deeds in respect of M s Conway Developers Private Limited.14 SCC 745 17 the proved market value of nearby lands in previous years as evidenced by sale transactions or acquisitions) where is no evidence of any contemporaneous sale transactions or acquisitions of comparable lands in the neighbourhood. The said method is reasonably safe where the relied on sale transactions acquisitions precede the subject acquisition by only a few years that is up to four to five years. Beyond that it may be unsafe even if it relates to a neighbouring land. What may be a reliable standard if the gap is of only a few years may become unsafe and unreliable standard where the gap is larger. For example for determining the market value of a land acquired in 1992 adopting the annual increase method with reference to a sale or acquisition in 1970 or 1980 may have many pitfalls. This is because over the course of years the “rate” of annual increase may itself undergo drastic change apart from the likelihood of occurrence of varying periods of stagnation in prices or sudden spurts in prices affecting the very standard of increase.” It is true that the process of determining the value by annual increase was considered as one of the alternatives in Wazir and Another vs. State of Haryana7. But in that case three methods including one relating to cumulative annual increase were considered and that method which led to the highest valuation was adopted. But the law laid down in ONGC Ltd.9 is quite clear. In case we go by the method of cumulative annual increase it would mean that cumulative increase over the valuation in Wazir and Another vs. State of Haryana7 must displace the valuation based on Sale Deed which is normally the safest method. 18 In the circumstances the decision of the High Court which is presently under appeal calls for no interference and these appeals are dismissed without any order as to costs. Uday Umesh Lalit) .. . …J. New Delhi April 08 2021

The FIR can be quashed in cases where there exists no chance of conviction of the accused person: The High Court of Jharkhand

In a criminal case where the victim and the accused person have arrived at a compromise and there are no other witnesses to the alleged crime, there is no chance of a conviction happening. In such cases, the first information report may be quashed as there is no point in the criminal trial being conducted. This was held by a single member bench of the High Court of Jharkhand consisting of Justice Sanjay Kumar Dwivedi in the case of Krishna Ballam Tiwary v The State of Jharkhand [Cr. M.P. No. 01of 2021] on 2nd August 2021. As per the informant’s report, the petitioner, Krishna Ballam Tiwary verbally abused the informant using his caste and also slapped, punched and threw chairs at him. A first information report was registered against the petitioner under Sections 341, 323, 504 and 506 of the Indian Penal Code for wrongful restraint, causing hurt, provocation and criminal intimidation as well as Section 3(1)(d) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 for garlanding with footwear and nakedly parading a member of an SC/ST Community. The present petition has been filed before the court by the petitioner for the quashing of the entire criminal proceedings as well as the first information report of the SC/ST Case No. 09 of 2019. Without going into the merits of the allegations levelled against the petitioner, the petitioner’s counsel brought to the notice of the court that a compromise had been reached between the informant who is the opposite party No. 2 in this case and the petitioner. The informant’s counsel submitted that this agreement was also supported by the informant. The case of Gyan Singh v State of Punjab [2013 1 SCC Cr.160] was cited where the court held that an FIR could be quashed in cases where there was no chance of the accused person being convicted. The High Court noted that in the immediate case, since no one else had witnessed the alleged crimes of the petitioner and a compromise has been reached between the petitioner and the informant, there was no chance of the petitioner being convicted if the criminal trial had to carry on.

Cr.M.P. No. 021 IN THE HIGH COURT OF JHARKHAND RANCHI Krishna Ballam Tiwary @ Krishna Ballabh Tiwari aged about 61 years s o late Laxman Tiwari resident of House No.203 Panki Road Baralota PO Baralota PS Daltonganj District Palamau….. Petitioner Versus 1.The State of Jharkhand 2.Govind Kachhap son of not known to the petitioner resident Engineer Water Supply And Sanitation Division Medninagar Palamau PO and PS Medninagar District Palamau …... Opposite Parties CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI For the Petitioner : Mr. Indrajit Sinha Advocate Mr. Ankit Vishal Advocate For the O.P.No.2 : Mr. Kumar Vaibhav APP 7 02.08.2021 Heard Mr. Indrajit Sinha the learned counsel assisted by Mr. Ankit Vishal the learned vice counsel appearing on behalf of the petitioner and Mr. Kumar Vaibhav the learned counsel appearing on behalf of the O.P.No.2. This petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID 19 pandemic. None of the parties have complained about any technical snag of audio video and with their consent this matter has been heard. 3. The present petition has been filed for quashing of the entire criminal proceeding as well as the First Information Report of Palamau SC ST P.S.Case No.09 of 2019 registered for the offence punishable under sections 341 323 504 and 506 of the Indian Penal Code and section 3(1)(d) of Scheduled Castes and Scheduled Tribes Prevention of Atrocities) Act 1989 pending in the court of learned Special Judge SC ST Act Palamau at Daltonganj. 4. On the written report of the informant Govind Kachhap the case was registered alleging therein that the petitioner has abused him by naming his caste and also assaulted by fists and slaps and also thrown chairs of the office and that for the aforesaid sections the F.I.R was lodged. Mr. Indrajit Sinha the learned counsel appearing alongwith his junior Mr. Ankit Vishal the learned vice counsel on behalf of the petitioner submits that now the matter has been compromised between the O.P.No.2 and the petitioner and for that one I.A. being I.A. No.1653 of 2021 has been filed. Mr. Kumar Vaishav the learned counsel appearing on behalf of the O.P.No.2 submits that there is a compromise and there is no societal interest is involved in the case and in that view of the matter it can be quashed. He submits that the said I.A is also supported by affidavit of the O.P.No.2 namely Govind Kachhap. 7. Mr. Indrajit Sinha the learned counsel for the petitioner submits that in the light of “Gyan Singh v. State of Punjab” reported in 2013 1 SCC Cr.160 the case stands covered and the FIR can be quashed. He further relied in the case of “Shiji v. Radhika” reported in10 SCC 705 and submits that it is well settled principle that in the cases where there is no chance of conviction against the accused and if the entire exercise of trial is continued to be exercised in futility the Court can interfere. He relied in paragraph no.17 of the said judgment which is quoted hereinbelow: “17. It is manifest that simply because an offence is not compoundable under Section 320 CrPC is by itself no reason for the High Court to refuse exercise of its power under Section 482 CrPC. That power can in our opinion be exercised in cases where there is no chance of recording a conviction against the accused and the entire exercise of a trial is destined to be an exercise in futility. There is a subtle distinction between compounding of offences by the parties before the trial court or in appeal on the one hand and the exercise of power by the High Court to quash the prosecution under Section 482 CrPC on the other. While a court trying an accused or hearing an appeal against conviction may not be competent to permit compounding of an offence based on a settlement arrived at between the parties in cases where the offences are not compoundable under Section 320 the High Court may quash the prosecution even in cases where the offences with which the accused stand charged are non compoundable. The inherent powers of the High Court under Section 482 CrPC are not for that purpose controlled by Section 320 CrPC.” He further submits that recently the Hon’ble Supreme Court has considered the case of public view in the case so far as SC ST Act is concerned in the case of “Hitesh Verma v. State of Uttrakhand” reported in10 SCC 710. Paragraph nos.14 and 15 of the said judgment are quoted hereinbelow: “14. Another key ingredient of the provision is insult or intimidation in “any place within public view”. What is to be regarded as “place in public view” had come up for consideration before this Court in the judgment reported as Swaran Singh v. State. The Court had drawn distinction between the expression “public place” and “in any place within public view”. It was held that if an offence is committed outside the building e.g. in a lawn outside a house and the lawn can be seen by someone from the road or lane outside the boundary wall then the lawn would certainly be a place within the public view. On the contrary if the remark is made inside a building but some members of the public are there then it would not be an offence since it is not in the public view “28. It has been alleged in the FIR that Vinod Nagar the insulted by informant was Appellants 2 and 3 when he stood near the car which was parked at the gate of the premises. In our opinion this was certainly a place within public view since the gate of a house is certainly a place within public view. It could have been a different matter had the alleged offence been committed inside a building and also was not in the public view. However if the offence is committed outside the building e.g. in a lawn outside a house and the lawn can be seen by lane outside the someone from the road or boundary wall the lawn would certainly be a place within the public view. Also even if the remark is made inside a building but some members of the public are there then also it would be an offence since it is in the public view. We must therefore not confuse the expression “place within public view” with the expression “public place”. A place can be a private place but yet within the public view. On the other hand a public place would ordinarily mean a place which is owned or leased by the Government or the municipalityor gaon sabha or an instrumentality of the State and not by private persons or private bodies.” 15. As per the FIR the allegations of abusing the informant were within the four walls of her building. It is not the case of the informant that there was any member of the publicat the time of the incident in the house. Therefore the basic ingredient that the words were uttered “in any place within public view” is not made out. In the list of witnesses appended to the charge sheet certain witnesses are named but it could not be said that those were the persons present within the four walls of the building. The offence is alleged to have taken place within the four walls of the building. Therefore in view of the judgment of this Court in Swaran Singh it cannot be said to be a place within public view as none was said to be present within the four walls of the building as per the FIR and or charge sheet.” 9. In view of the above and considering the submissions of the learned counsel appearing on behalf of the petitioner as well as the O.P.No.2 and also looking into the I.A. being I.A. No.1653 of 2021 supported by the affidavit of O.P.No.2 the Court comes to the conclusion that there is no societal interest involved and there is no chance of conviction in view of the further development as it has been considered by the Hon’ble Supreme Court in the cases stated supra. Accordingly the entire criminal proceeding as well as the F.I.R of Palamau SC ST P.S.Case No.019 registered for the offence punishable under sections 341 323 504 and 506 of the Indian Penal Code and section 3(1)(d) of Scheduled Castes and Scheduled Tribes Prevention of Atrocities) Act 1989 pending in the court of learned Special Judge SC ST Act Palamau at Daltonganj is quashed and set Cr.M.P. No.01 of 2021 as well as I.A.No.1653 of 2021 stand allowed and disposed of. I.A. pending if any also stands disposed of. aside. SI

Lawyers not to be harassed by GST notice, high court warns government again for issuing notice to a lawyer for the GST collection- Prime Legal

Lawyers must be exempted from paying tax and must not be harassed by GST notice. Time and again the court stressed upon the practicing lawyers that they must not be sent any notice to pay tax. This auspicious order dated 31st March 2021 was passed by the Orissa High court in the matter of Devi Prasad Tripathy v. The Principal Commissioner CGST and Central Excise Bhubaneswar and others [W.P.(C) No.27727 of 2020] by THE CHIEF JUSTICE JUSTICE B. P. ROUTRAY. Directions were laid to the Commissioner GST to issue crystal clear instructions to all the officers in the GST Commission rates in the state, not to issue any notice demanding payment of service tax/GST to practicing lawyers. The petition was filed by the practicing lawyer- Mr. Devi Prasad against the respondents who proclaimed via affidavit that the lawyer should have submitted documentary evidence to prove his claim that he was a practicing individual lawyer and does not come under the provision of GST or service tax. The affidavit by the respondent further stated that “after receiving information from Devi Prasad Tripathy having PAN as being an individual advocate practicing in the Hon’ble High Court of Odisha”. A reference was made to a Notification dated 20th June 2012, in terms of which service tax liability of an individual advocate was Nil for legal services rendered to any of business entities located in the taxable territory. However, even for this, the Department appeared to insist that “the burden to prove it lies on the Petitioner. The counter-affidavit filed acknowledges that a similar notice was issued to the Petitioner in 2017 to which he replied, pointing out how he was not liable to pay any service tax.” Further, Mr. P. K. Parhi, learned Assistant Solicitor General of India, fairly admitted that “no notice in the first instance ought to have been issued to the Petitioner, who is a practicing advocate. However, when specifically asked whether the clear instructions have been issued by the Department to all the officers involved in the enforcement of the GST regime that practicing advocates should not be issued notices, he sought time for instructions.” Also, the court after inquiring other lawyers who were present in the court about the same got to know that “they too have received such notices. It appears that despite knowing fully well that advocates are not liable to pay service tax or GST, notices continue to be issued to them by the GST Commissionerate.”

IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.277220 Devi Prasad Tripathy The Principal Commissioner CGST and Central Excise Bhubaneswar and others versus in person Opposite Parties Mr. P. K. Parhi Assistant Solicitor General of India CORAM: THE CHIEF JUSTICE JUSTICE B. P. ROUTRAY Order No. 04. 1. The Counter affidavit sworn to by the Principal Commissioner GST and Central Excise Bhubaneswar Commissionerate on behalf of Opposite Party Nos.1 to 7 is produced in Court today which is taken on record. 2. It is stated in the said affidavit that “after receiving information from Devi Prasad Tripathy having PAN as being an individual advocate practicing in the Hon’ble High Court of Odisha” further proceedings against him are dropped. 3. What the Court is concerned about is the deponent insisting that the Petitioner should have submitted “documentary evidence to prove his claim that he is a practicing individual lawyer and does not come under the provision of GST or service tax.” 4. A reference is made to a Notification dated 20th June 2012 in terms of which service tax liability of an individual advocate is Nil for legal services rendered to any of business entities located in the taxable territory. However even for this the Department appears to insist that the burden to prove lies on the Petitioner. The counter affidavit filed acknowledges that a similar notice was issued to the Petitioner in 2017 to which he replied pointing out how he was not liable to pay any service tax. 5. Mr. P. K. Parhi learned Assistant Solicitor General of India has fairly admitted that no notice in the first instance ought to have been issued to the Petitioner who is a practising advocate. However when specifically asked whether the clear instructions have been issued by the Department to all the officers involved in the enforcement of the GST regime that practising advocates should not be issued notices he sought time for instructions. 6. During the hearing certain other advocates present in the Court stated that they too have received such notices. It appears that despite knowing fully well that advocates are not liable to pay service tax or GST notices continue to be issued to them by the GST Commissionerate. 7. The Court expresses its concern that practising advocates should not have to face harassment on account of the Department issuing notices calling upon them to pay service tax GST when they are exempted from doing so and in the process also having to prove they are practising advocates. The Commissioner GST is directed to issue clear instructions to all the officers in the GST Commissionerates in Odisha that no notice demanding payment of service tax GST will be issued to lawyers rendering legal services and falling in the negative list as far as GST regime is concerned. Copies of such instructions be placed before the Court on the next date. 8. List on 22nd April 2021. Dr. S. Muralidhar) Chief Justice B.P. Routray ) M. Panda

Tribunal has the power to make Interim Orders which it thinks fit for regulation of the conduct of the affairs of the Company: National Company Law Appellate Tribunal, Principal Bench, New Delhi

Whether the National Company Law Tribunal, has the power to regulate the conduct of affairs of a company through interim orders, independent of any observation upon the merits of a case, was a question considered by the NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH, NEW DELHI, before a bench consisting of Justice Anant Bijay Singh, Member (Judicial); Ms. Shreesha Merla, Member (Technical), in the matter of Srei Infrastructure Finance Limited vs. Trinity Alternative Investment Managers Limited [COMPANY APPEAL (AT) No. 13 of 2022], on 19.01.22. The facts of the case are that challenge in the present appeal filed under Section 421 of the Companies Act, 2013, is to the Impugned Order dated 06.12.2021, passed by the NCLT (National Company Law Tribunal, Kolkata Bench, Kolkata). The Learned Counsel for the Appellants, herein submitted that NCLT admitted the Application filed by Reserve Bank of India (RBI) vide Order dated 08.10.2021 and initiated Corporate Insolvency Resolution Process against the appellant/M/s. SREI Infrastructure Finance Limited (SIFL), with the effect that moratorium under Section 14 of the Insolvency and Bankruptcy Code, 2016, commenced. An Administrator was appointed by the Company. It was asserted that SIFl was a Non-Banking Financial Company, of whom the respondent was a subsidiary. It was stated that a company petition under Sections 241/242 of the Companies Act, 2013, was filed by the appellant on 18.11.2021, before the NCLT seeking inter alia injunction against the respondent from proceeding with the Rights Issue as it was being issued with a motive to dilute the shareholding of the appellant in the respondent Company. It was thus argued that the Status Quo ordered by NCLT with respect to the exercise of their Statutory Rights under Sections 100 and 169 of the Companies Act, 2013, that is, matters entirely unconnected with the proposed Rights Issue in the absence of any pleadings or Affidavits by the parties, is unjustified. It was further asserted that the Impugned Order effectively restrained the appellant, the 51% Shareholder from exercising its Statutory Rights and following a prescribed procedure to remove an appointed Director, despite there being no request or prayer wheresoever. The Impugned Order is passed in respect of issue which is not even remotely connected with the lis pending before NCLT that is., the Right Issue. It was contended that the Impugned Order interferes with the functioning of the statutorily appointed Administrator and has the effect of derailing the timelines. Further, it was submitted that under Section 159 of the Companies Act, 2013, read with Regulation 168 of the Articles of Association, ‘SIFL’ undertook to remove the Directors, for which procedure, 21 days’ time is a prerequisite to issue Notice for a Meeting. On account of the Status Quo Order by the NCLT, ‘SIFL’ will lose time and the Administrator will lose control. Several precedents were invoked in support of the contentions. The Learned Counsel for the Respondents, contended that ‘SIFL’ challenged the Rights Issue in a Petition filed before the NCLT, but latter initiated the process of removal of Directors. It was further argued that the requisition Notice is only a pressure tactic by SREI. Light was shed on Orders dated 06.12.2021 & 04.01.2022, and it was submitted that the matter is listed again on 18.02.2022 within four weeks from today. It was argued that there was no case of collusion made out in the Notice and that the NCLT has not expressed any opinion on the merits of the matter. It was further submitted that when a Petition is filed under Sections 241 and 242, the powers of Tribunal under Section 242(4) provides that the Tribunal may on an Application of any party to the proceeding, make any Interim Order which it thinks fit for regulating the conduct of the Companies affairs upon such terms and conditions as appear to it to be just and equitable. The National Company Law Appellate Tribunal, Principal Bench, New Delhi, in light of the facts, submissions, and consideration of precedents and legal provisions, noted that though there is an Order of Status Quo in a Petition filed by the appellant in the absence of any Prayer to that effect/issue, it is pertinent to observe that NCLT has not passed any Order on the merits of the case on hand. From the bare perusal of the Impugned Order, the Tribunal expressed the view that the Tribunal has the power to make Interim Orders which it thinks fit for regulation of the conduct of the affairs of the Company. On a careful consideration of the contentions projected by both sides, and the pleadings put forward, the Tribunal, keeping in mind the ingredients of Section 241 and 242 of the Act, arrived at the resultant conclusion, without expressing any opinion on the merits of the matter, also not delving deep into the case, as allegations of ‘oppression and mismanagement’ consist of mixed questions of fact and law, which cannot be decided at this interim stage, directed the NCLT Kolkata Bench to take up the matter on 18.02.2022, without any further adjournments, dealing with all issues raised, in accordance with law. Thus, the appeal was disposed of.

National Company Law Appellate Tribunal Principal Bench New Delhi COMPANY APPEALNo. 122 Arising out of Order dated 06th December 2021 passed by National Company Law Tribunal Kolkata Bench Kolkata in CP 275(KB)2021). IN THE MATTER OF: Srei Infrastructure Finance Limited Plot No. Y 10 Block EP Sector V Salt Lake City Kolkata 700091 Trinity Alternative 302 B Wing 3rd Floor Times Square Andheri Kurla Road Opp. Mittal Est. Andheri East Mumbai 400059 Email: secretarial@taiml.co.in Investment Managers ...Appellant …Respondent Mr. Tushar Mehta Sr. Advocate Mr. Arun Kathpalia Sr. Advocate along with Mr. V.P. Singh Ms. Vatsala Rai Mr. Vivek Shetty Ms. Neeraja Balakrishnan and Mr. Raghav Seth Advocates. Mr. Ratnanko Banerji Sr. Advocate along with Mr. Abhijeet Sinha Mr. Rishav Banerjee Mr. Aditya Shukla Rajarshi Banerjee Mr. Ravneet Singh and Ms. Abhilasha Sharma Advocates. J U D G E M E N T Challenge in this Company Appeal No. 13 of 2022 filed under Section 421 of the Companies Act 2013is to the Impugned Order dated 06.12.2021 passed by the NCLT in CP 275(KB)2021. By the Impugned Order NCLT has observed as follows: 2 1. Ld. Sr. Counsel for the Respondent present. Ld. Sr. Counsel for the Petitioner present. 2. The Supplementary Affidavit in the matter of the order dated 30.11.2021 has been served on the Administrator on 03.12.2021. Ld. Sr. Counsel seeks sometime to cover the same and file his reply thereto. At request time is granted. One week time is granted to file reply in the matter and copies of the reply shall be served on Respondent. List this matter for further consideration on 16.12.2021 as a specially ordered matter. 3. In the mean time both sides shall have precipitate himself and shall maintain status quo until the hearing of Petition. the Counsel on record Submissions on behalf of the Learned Solicitor General appearing on behalf of Appellant:  Learned Solicitor General appearing for the Appellant herein submitted that NCLT admitted the Application filed by Reserve Bank of Indiavide Order dated 08.10.2021 and initiated CIRP against the Appellant M s. SREI Infrastructure Finance Limited with the effect that moratorium under Section 14 of the Code commenced. An Administrator was appointed by the Company. a Non Banking Financial Company Respondent Trinity Alternative Investment Managers Limited is a subsidiary of ‘SIFL’. ‘SIFL’ owns 51% of the equity shareholding in ‘Trinity’. The remaining 49% shareholding is owned by one Payaash Capital Singapore Pte Ltd.No. 122 3 the NCLT seeking inter alia injunction against the Respondent from proceeding with the Rights Issue as it was being issued with a motive to dilute the shareholding of the Appellant in the Respondent Company.  The Status Quo ordered by NCLT with respect to the exercise of their Statutory Rights under Sections 100 and 169 of the Act i.e. in matters entirely unconnected with the proposed Rights Issue in the absence of any pleadings or Affidavits by the parties is unjustified.  The Impugned Order effectively restrained the Appellant the 51% Shareholder from exercising its Statutory Rights and following a prescribed procedure to remove an appointed Director despite there being no request or prayer wheresoever. The Impugned Order is passed in respect of issue which is not even remotely connected with the lis pending before NCLT i.e. the Right Issue.  The Impugned Order interferes with the functioning of the statutorily appointed Administrator and has the effect of derailing the timelines. It is strenuously argued by the Learned Solicitor General that the Directors of ‘Trinity’ on a Meeting with the Administrator of ‘SIFL’ on 12.11.2021 had conveyed to them that there was no malafide intention behind the aforesaid Rights Issue of shares and the Board of Directors of the Company decided to withdraw the current offer of the Rights Issue with immediate effect and advised to explore a way out to repay its debt in consultation with the Administrator. It is submitted that under Section 159 of the Act read with Regulation 168 of the Company AppealNo. 122 4 Articles of Association ‘SIFL’ undertook to remove the Directors for which procedure 21 days time is a prerequisite to issue Notice for a Meeting. On account of the Status Quo Order by the NCLT ‘SIFL’ will lose time and the Administrator will lose control. Further the matter was first heard on 16.12.2021 and then was listed on 04.01.2022 thereafter on 14.01.2022 and is now posted to 18.02.2022.  Learned Solicitor General drew our attention to the prayer sought for before the NCLT which primarily was only to stop the Rights Issue contemplated by ‘Trinity’. The Respondent obtained an Order of injunction against the Appellant in a Petition filed by the Appellant.  Learned Counsel relied on the decision of the Hon’ble Supreme Court in paras 118 121 133 172 & 173 of ‘Tata Consultancy Services Ltd.’ Vs. ‘Cyrus Investment Private Ltd. & Ors.’ 9 SCC 449 and also relied on para 100 in ‘Life Insurance Corporation of India’ Vs. ‘Escorts Ltd. & Ors.’ 1 SCC 264 in support of his Submissions of the Learned Sr. Counsel appearing on behalf of the contentions.  Learned Sr. Counsel contended that ‘SIFL’ challenged the Rights Issue in a Petition filed before the NCLT but latter initiated the process of removal of Directors. The requisition Notice is only a pressure tactic by SREI. Learned Sr. Counsel drew our attention to the Orders dated 06.12.2021 & 04.01.2022. He submitted that the matter is listed again on 18.02.2022 within four weeks from today. Company AppealNo. 122 5  Learned Sr. Counsel submitted that there was no case of collusion made out in the Notice and that the NCLT has not expressed any opinion on the merits of the matter. Learned Sr. Counsel further submitted that when a Petition is filed under Sections 241 and 242 the powers of Tribunal under Section 242(4) provides that the Tribunal may on an Application of any party to the proceeding make any Interim Order which it thinks fit for regulating the conduct of the Companies affairs upon such terms and conditions as appear to it to be just and equitable. For the sake of brevity the facts are not being repeated. At the outset we find it relevant to reproduce the Order dated 30.11.2021 for better understanding of the case on hand: Date: 30.11.2021 Ld. Sr. Counsel present on both sides. This petition was moved by the Ld. Sr. Counsel appearing on behalf of the Administrator of the Petitioner aggrieved by the fact that the rights issue was proposed by the respondent No.1 Company on 25th October 2021. The Administrator of Petitioner immediately wrote back saying that in view of the moratorium following the admission of the India on 08 10 2021 by the order of this Adjudicating The Petitioner is not in a position at the moment to subscribe to the rights issue and therefore the same should be withdrawn. The apprehension of the Administrator stems from the fact that the rights issue is not subscribed to by the 51% shareholders then there will be dilution of the shareholding in the R1 Company. The Ld. Sr. Counsel also alleges violation filed by Reserve Bank of Company AppealNo. 122 6 the SEBI of Regulation 20(13) of Investment Funds) Regulations 2021 and provisions of Section 62(1)(a) of the Companies Act 2013. Ld. Sr. Counsel on behalf of the Respondent No.1 Company submits that the cause of action for the present petition does not exist in view of the deferment of the proposed rights issue. He further submits that a future rights issue cannot be decided in the present petition. Be it as it may in the first instance we have to be satisfied as to why there was a material change proposed in the minutes which was circulated in draft form on 13 11 2021 and its final form was changed. We are also keen to know at whose instance the change was brought about. We are also required to be satisfied as to the pressing need for the rights issue when at this point of time 51% shareholding of the R1 company is with the Administrator appointed by this Tribunal. Ld. Sr. Counsel request a short time to place the documents information on record. At request time is granted. List this matter for further hearing on Monday 06 12 2021 as a specially ordered matter. “1. Ld. Sr. Counsel for the Respondent present. Ld. Sr. Counsel for the Petitioner present. 2. Heard the Ld. Sr. Counsel appearing for the Petitioner in full. Ld. Sr. Counsel appearing for the Respondent seeks time to file reply affidavit at request one week s time is granted for the same. Copies of the same to be served on the Counsel on record for the Petitioner who shall have one week to file rejoinder if any. 3. List this matter on 04.01.2022.” Company AppealNo. 122 Impugned Order dated 06.12.2021 is reproduced in para 1. The matter was heard once again on 16.12.2021 when NCLT passed the following Order: From the aforenoted Order it is seen that the matter was listed on 7 04.01.2022 and it is pertinent to mention that NCLT has recorded that the „Petitioner was heard in full‟. It is significant to mention that in all the aforenoted Orders passed by NCLT both sides were present and heard. The matter was listed for 06.12.2021 as „a specially ordered matter‟. We find force in the contention of the Learned Counsel for the Respondent that it could not be heard on 14.01.2022 on account of the pandemic and was At this juncture we find it relevant to reproduce Section 242(4) of the hence posted to 18.02.2022. 242. Powers of the Tribunal. 4) The Tribunal may on the application of any party to the proceeding make any interim order which it thinks fit for regulating the conduct of the company s affairs upon such terms and conditions as appear to it to be just and equitable. 10. The aforenoted Section empowers the Tribunal to pass any Interim Order on an Application made by any party to the proceeding which it thinks fit for regulating the conduct of the Companies affairs upon such terms and conditions as appear to it to be just and equitable. 11. The Learned Solicitor General has strenuously contended that it is an admitted position that no Application Prayer has been made with respect to the issue on hand that this Status Quo Order disrupts the timelines and interferes with the functioning of the Administrator that the Appellant vide letter dated 30.11.2021 issued under Sections 100 and 115 of the Companies Act 2013 requisitioning an EGM of the Shareholders of the Company AppealNo. 122 Respondent Company has nothing to do with the Rights Issue that the 8 Status Quo Order against the Appellant is with respect to the exercise of their Statutory Rights under Sections 100 and 169 Removal of Directors) of the Companies Act 2013 and for matters entirely unconnected with the Rights Issue that NCLT had adjourned the matter time and again despite the Appellant pointing out that the Respondent had unfairly dealt with the serving of the Reply and that the hearing ought to be taken up and the Order of Status Quo be vacated and that the Respondent had not raised any issue with letters dated 24.11.2021 30.11.2021 issued by the Appellant nor had it sought any relief and further these letters do not give rise to any cause of action in favour of the Respondents. 12. Though we are conscious of the fact that there is an Order of Status Quo in a Petition filed by the Appellant in the absence of any Prayer to that effect issue we observe that NCLT has not passed any Order on the merits of the case on hand. From the bare perusal of the Impugned Order we are of the view that the Tribunal has the power to make Interim Orders which it thinks fit for regulation of the conduct of the affairs of the Company. On a careful consideration of the contentions projected by both sides and the pleadings put forward this Tribunal keeping in mind the ingredients of Section 241 and 242 of the Act arrives at the resultant conclusion without expressing any opinion on the merits of the matter also not delving deep into the case as allegations of ‘oppression and mismanagement’ consist of mixed questions of fact and law which cannot be decided at this interim stage directs the NCLT Kolkata Bench to take up the matter on 18.02.2022 Company AppealNo. 122 without any further adjournments dealing with all issues raised in 9 accordance with law. 13. This Appeal is disposed of with the aforenoted observations. 14. The Registry is directed to upload the Judgement on the website of this Tribunal and send the copy of this Judgement to National Company Law Tribunal Kolkata forthwith. Justice Anant Bijay Singh] MemberMs. Shreesha Merla] MemberNEW DELHI 19th January 2022 Company AppealNo. 122

Mere recovery of tainted money without any proof of demand not sufficient to constitute the offence punishable U/S. 8 of the Prevention of Corruption Act: Jharkhand High Court

Illegal gratification is a sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 8 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The judgement was passed by the High Court of Jharkhand in the case of Suraj Singh vs The State of Jharkhand [Cr. Appeal (SJ) No. 663 of 2020] by Single Bench consisting of Hon’ble Justice Anil Kumar Choudhary. The appeal followed by the judgment of the learned session court where under, the learned court has held the appellant guilty for the offence punishable under Section 8 of the Prevention of Corruption Act, 1988. The appellant has been sentenced to undergo Rigorous Imprisonment for three years and nine months and to pay a fine for the offence punishable under Section 8 of the Prevention of Corruption Act, 1988 and in default of payment of fine to undergo Simple Imprisonment for one year. The learned counsel for the appellant-convict submitted that the learned court below failed to appreciate the fact that there is absolutely no evidence in the record regarding the handing over of the alleged general currency notes to the appellant-accused as a bribe. He further submitted that to bring home the charge for the offence punishable under Section 8 of the Prevention of Corruption Act. In support of his contention, he relied upon the judgment of Hon’ble Supreme Court of India in the case of Priyanka Kumari versus the State of Jharkhand wherein in “the facts of those cases where the offence involved were under section 7 of the Prevention of Corruption Act, 1988 and where there was no evidence regarding demand of bribe by the appellants of those appeals, this Court set aside the conviction of the appellants and acquitted them by giving them the benefit of doubt relying upon the aforesaid settled principle of law.” The learned counsel for the respondent on the other hand defended the impugned judgment of conviction and order of sentence and submitted that as the witness have categorically stated about the facts of the case and his testimony which is corroborated by the testimony of the other prosecution witnesses; are sufficient enough to establish the charge for the offence punishable under Section 8 of the Prevention of Corruption Act, 1988.

1 Cr. AppealNo.6620 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. AppealNo. 6620 Against the Judgment of Conviction dated 20.10.2020 and Order of Sentence dated 31.10.2020 passed by the Special Judge A.C.B. Hazaribag in Special Case No.414Suraj Singh @ Deepak Singh aged about 39 years son of Awadhesh Singh Resident of Amethiya Nagar Namkum P.O. & P.S. Namkum District Ranchi Jharkhand … Appellant Versus The State of Jharkhand through Anti Corruption Bureau For the Appellant For the A.C.B. Mr. A.K. Kashyap Sr. Advocate Mr. Rishi Raj Verma Advocate Mr. Suraj Verma Spl. P.P. Respondent HON BLE MR. JUSTICE ANIL KUMAR CHOUDHARY PRONOUNCED ON 24.03.2021 C.A.V. ON 10.03.2021 Anil Kumar Choudhary J. Heard the parties through video conferencing. 2. This appeal has been preferred against Judgment of Conviction dated 20.10.2020 and Order of Sentence dated 31.10.2020 passed by the learned Special Judge A.C.B. Hazaribag in Special Case No.45 of 2014 whereby and where under the learned court below has held appellant convict guilty for the offence punishable under Section 8 of the Prevention of Corruption Act 1988. The appellant convict has been sentenced to undergo Rigorous 2 Cr. AppealNo.6620 Imprisonment for three years and nine months and to pay a fine of Rs.7 000 for the offence punishable under Section 8 of the Prevention of Corruption Act 1988 and in default of payment of fine to undergo Simple Imprisonment for a period of one year. 3. The case of the prosecution in brief is that the complainant P.W.6 Shankarlal Yadav being a driver of a truck while going in the highway with his truck loaded with pulses from Madhya Pradesh to Kolkata on the way at Atka the co accused District Transport Officer Hazaribag stopped his truck and took away all the documents of the truck as well as the driving licence of the complainant and told the complainant to meet him in his office. The complainant parked his truck in a line Hotel and went to the office of the co accused District Transport Officer. The co accused District Transport Officer gave one mobile phone number to the complainant and told the complainant that the said mobile phone number is of the present appellant convict and also told the complainant to meet the appellant convict where the appellant convict calls complainant for release of his truck. The complainant then contacted the appellant convict and the appellant convict told the complainant to come to the District More. When the complainant went to District More and met the appellant convict the appellant convict told the complainant that the co accused District Transport Officer has said that for the release of his vehicle the complainant has to pay ₹ 22 000 . On being asked by the complainant the appellant convict informed the complainant 3 Cr. AppealNo.6620 that no receipt will be given to the complainant in respect of the payment of ₹ 22 000 which will be made by the complainant and in spite of the request of the complainant the appellant convict did not return the documents of the vehicle and the driving licence of the complainant. As the complainant was not intending to pay the bribe amount he approached the Vigilance Bureau by submitting a written application. On the basis of the written application of the complainant P.W.2 conducted verification and finding the allegation of the written application to be true the P.W.2 submitted his report. On the basis of the same the F.I.R. of this case has been registered and a trap team was constituted. A successful trap was made on 11.11.2014 at the office of the District Transport Officer Hazaribagh and the appellant convict was caught red handed after accepting the bribe of ₹ 19 000 on behalf of the co accused District Transport Officer. The post trap formalities were done. The P.W.7 being the I.O. of the case took charge of the investigation and after completion of investigation submitted charge sheet. Charge for the offence punishable under section 8 of the Prevention of Corruption Act 1988 was framed against the appellant convict and upon his denying the charge he was put to trial. 4. In support of its case the prosecution has altogether examined ten witnesses besides proving documents. No evidence was adduced on behalf of the appellant convict. 5. P.W.6 Shankarlal Yadav is the complainant of this case. He has been declared hostile on the prayer of the prosecution as 4 Cr. AppealNo.6620 he did not support the case of the prosecution. Before being declared hostile the P.W.6 has stated that he has not submitted any application against anybody in the Vigilance Bureau Hazaribagh. He did not deposit the bribe amount in the office of Vigilance Bureau. No raid was conducted in his presence nor bribe money was seized. None has demanded any bribe from him. He did not admit the leading questions put to him by the prosecution after being declared hostile. In his cross examination the P.W.6 has stated that he never came to Hazaribagh before his deposition in Court. P.W. 2 Lal Narayan Gupta is a retired Deputy Superintendent of Police of Vigilance Bureau Ranchi. He has stated about the complaint made by the P.W.6 and upon verification on 08.11.2014 at the office of District Transport Officer Hazaribag he found the allegations made by the complainant was true. The P.W.2 was a member of the trap team. He narrated in detail about the pre trap preparations. He further stated that on 11.11.2014 the PW6 at about 14.30 hours entered the office chamber of the District Transport Officer Hazaribagh and came out immediately and gave the pre determined signal. The PW 2 and PW 4 immediately entered inside the official the chamber of the D.T.O. The PW2 caught hold of the right hand of the appellant convict and the PW 4 caught hold of his left hand. The appellant convict was holding notes of ₹ 1000 denomination and disclosed his identity. Upon the fingers of the hands of the appellant convict being washed in the solution of 5 Cr. AppealNo.6620 sodium carbonate the colour of the solution turned the pink. Thereafter the investigating officer seized a mobile phone from the appellant convict. In his cross examination the PW 2 has stated that PW4 was standing closest to him at the place of occurrence. He reached the place of occurrence half a minute after the signal was given by the PW6. He does not know what happened prior to his reaching the place of occurrence. He has not seen anybody giving or taking bribe. PW 4 Kishore Tirkey was also a member of the raiding team. He has stated in detail about the pre trap preparations. He then stated that on 11.11.2014 at 2:30 PM the complainant came out of the office of D.T.O and signaled by scratching his head. At which the PW4 reached the office of D.T.O. There the verifying officer was catching hold of the hand of a person who was trying to get himself released. The PW4 caught hold of the left hand of that person. By that time all the members of the trap team and persons of nearby places assembled there. In presence of the 2 independent witnesses and the special magistrate on being asked the said person disclosed himself to be the appellant convict of this case. On being searched by the witnesses 19 currency notes of ₹ 1000 denomination each i.e. in total rupees 19 000 was seized and on being compared the same tallied with the denomination and the numbers of the notes mentioned in the G.C. notes memorandum. He then stated about the hands of the appellant convict being washed with sodium carbonate solution the colour of the solution turned pink. He has 6 Cr. AppealNo.6620 also stated about the post trap formalities including seizure of documents in 3 different trunks from the office of D.T.O. In his cross examination the PW4 stated that it is a fact that he has not seen anybody taking the bribe at the place of occurrence. 8. PW3 Awadhesh Kumar Singh has stated that he was posted as D.S.P in Anti Corruption Bureau Ranchi on 10.11.2014. He has also stated in detail about the pre trap preparations. He then stated that the PW2 was instructed to be the Shadow witness. He was also a member of the trap team. They reached Hazaribag on 11.11.2014. At about 15 hours the complainant went to the office of DTO and saw that the appellant convict is present in the office and demanded bribe of ₹ 19 000 and the PW 6 gave and came out and signalled by scratching his head at which all the members of the trap team went near and the PW2 caught hold of the right hand of the appellant convict who was keeping the money in his fist and his left hand was caught hold of by the PW4. In the meanwhile the PW3 and the special magistrate as well as the investigating officer reached there. The search of the appellant convict was made in presence of 2 independent witnesses. ₹ 19 000 was recovered from the fist of right hand of the appellant convict which consisted of 19 notes of ₹ 1000 denomination each and upon compared the numbers tallied with the G.C.notes memorandum. He has also stated about the post trap formalities including the colour of sodium carbonate solution turning pink upon the hands of the appellant convict being washed with the said solution. The appellant 7 Cr. AppealNo.6620 convict stated that he took the bribe on being told by the DTO and he gets ₹ 200 to ₹ 500 out of the bribe amount. In his cross examination PW3 has stated that he did not get any opportunity to read any document. Only he found the denomination numbers of the G.C.notes to be true and reading the same as well as finding the same to be true he put his signature. He has not seen the complainant giving the bribe at the place of occurrence. After watching the movement of other members of the trap team the PW3 reached at the place of occurrence after about 5 minutes. He cannot say as to whether he has seen anybody demanding bribe or giving and taking the same or not. PW1 Santosh Kumar Pandey is one of the independent witnesses of seizure. He had gone to the DTO office in connection with his personal work and they came to know that a raid was conducted by the Vigilance Bureau. He saw that the appellant convict was caught by the police personnel. Rupees 19 000 was recovered from the appellant convict. Each note was of ₹ 1000 denomination. PW1 was made to sign on the recovered notes. Upon hands of the appellant convict being washed with the solution the colour of the solution turned pink. He identified the seizure list in connection with the seizure of Samsung mobile phone. He was declared hostile and even though the prosecution was permitted to put leading questions to him still he did not support the suggestions of the prosecution. He further stated that he doesn’t know the appellant convict. In his cross examination he had stated that he is the owner of a 8 Cr. AppealNo.6620 PW5 Shankar Singh has stated that on 11.11.2014 he had come to DTO office for the release of his vehicle. When he was in the DTO office his signatures were obtained. Since there was a heavy rush hence he could not know who was caught. He was not examined before his deposition in court. He does not know the appellant convict. He identified his signature on the F I R. He was also declared hostile on the prayer of the state but he did not admit the suggestions of the prosecution put to him by way of his cross examination. In his cross examination by the defence the PW5 had stated that he does not know as to what was written on the paper signed by him. In his presence no one was PW 7 Jitendra Dubey is the investigating officer of this case. He has stated about the pre trap preparations. He also stated that on 11.11.2014 along with all the members of the trap team he reached the Transport Office of Hazaribagh. The members concealing their identity stood here and there. In the meanwhile the complainant went to the office of the Transport Officer. After some time he signalled by scratching his head. On receiving the signal the officers of the trap team entered inside the office. He has also stated about the post trap formalities in detail. He further stated about the investigations done by him in connection with this case. After getting evidence against the appellant convict he submitted the charge sheet. In his cross examination PW 7 has stated that he did not ask for nor seen any 9 Cr. AppealNo.6620 document regarding the identity of the PW6. He has not seen anybody taking or giving bribe. From the place of occurrence the documents of 3 vehicles were seized but those documents were not the documents of the vehicle bearing number WB 23 B 7097. The PW6 did not say before him that on 11.11.2014 he had been to the DTO office of Hazaribagh where the appellant convict on demanding PW6 gave 19 notes of ₹ 1000 denomination each. He did not record the statement of PW 6 after the occurrence. PW8 Arjun Gope is a formal witness. He produced this seized material exhibits in court. PW9 Birendra Kumar is the Assistant Settlement Officer who went with the raiding team. He has deposed that the PW6 went near the appellant convict met him scratched his head and then the members of the trap team went and caught hold of the appellant convict. On search of the appellant convict being made ₹ 19 000 was recovered and on comparing the number of the notes with the numbers mentioned in the G.C.note the same were found to be true. In his cross examination the PW9 has stated that he has not seen anybody signaling by scratching his head. When he reached the place of occurrence he saw the members of the team on the veranda. PW 10 Kapildeo Kumar Singh was the Khalasi of the truck. He has no knowledge about the occurrence. He stated that no occurrence took place with him. He did not give any statement to the investigating officer in connection with this case. He was declared hostile but he did not support the suggestions 10 Cr. AppealNo.6620 given to him by the prosecution. After closure of the evidence of the prosecution the statement under Section 313 Cr.P.C. of the appellant convict was recorded regarding the circumstances appearing in evidence against the appellant convict wherein he denied the allegation of demand and acceptance of bribe and also denied all the allegations against him and pleaded innocence. The learned trial court after taking into consideration the evidence in the record held the appellant guilty for the offence punishable under Section 8 of the Prevention of Corruption Act 1988 and convicted and sentenced him as already indicated above in this judgment. Mr. Anil Kumar Kashyap the learned senior counsel for the appellant convict submitted that the learned court below failed to appreciate the fact that there is absolutely no evidence in the record regarding the handing over of the alleged general currency notes to the appellant accused as bribe. Mr. Kashyap further submitted that to bring home the charge for the offence punishable under Section 8 of the Prevention of Corruption Act 1988 as it was prior to the amendment made by the Prevention of CorruptionAct 2018 which reads as under 8. Taking gratification in order by corrupt or illegal means to influence public servant.—Whoever accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification whatever as a motive or reward for inducing by corrupt or illegal means any public servant whether named or otherwise to do or to forbear to do any official act or in the exercise of the official functions of such public servant to show favour or disfavour to any person or to render or attempt to render any 11 Cr. AppealNo.6620 service or disservice to any person with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority corporation or Government company referred to in clause of section 2 or with any public servant whether named or otherwise shall be punishable with imprisonment for a term which shall be not less than but which may extend toand shall also be liable to fine. the essential ingredients are the demand acceptance and the recovery of the bribe amount from a person who may not be a public servant but who has accepted the gratification as a motive or reward for inducing by corrupt or illegal means any public servant. 18. In support of his contention Mr. Kashyap relied upon the judgment of Hon’ble Supreme Court of India in the case of Krishan Chander v. State of Delhi reported in 3 SCC 108 wherein the Hon’ble Supreme Court of India reiterated the settled principle of law regarding the ingredients of inter alia section 7 of the Prevention of Corruption Act 1988 in paragraph no.35 as under: “35. It is well settled position of law that the demand for the bribe money is sine qua non to convict the accused for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act. The same legal principle has been held by this Court in the case of B. JayarajA. Subairand P. Satyanarayana Murthyupon which reliance is rightly placed by the learned senior counsel on behalf of the appellant. 36. The relevant paragraph 7 from B. Jayaraj case reads “7. In so far as the offence under Section 7 is concerned it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several 12 Cr. AppealNo.6620 judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P. and C.M. Girish Babu v. CBI.” In the case of P. Satyanarayana Murthy it was held by this Court as “21. In State of Kerala and another vs. C.P. Rao this Court reiterating its earlier dictum vis à vis the same offences held that mere recovery by itself would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe conviction cannot be sustained.” And submitted that the same principle of law will also be applicable to the offences punishable under section 8 of the Prevention of Corruption Act 1988 as the verbatim of section 7 of the Prevention of Corruption Act 1988 so far as it relates to accepting or obtaining bribe is pari materia with the verbatim of section 8 of the Prevention of Corruption Act 1988 and in this respect Mr Kashyap draws attention of the court to section 7 of the Prevention of Corruption Act 1988 which reads as under: 7. Public servant taking gratification other than legal remuneration in respect of an official act.—Whoever being or expecting to be a public servant accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification whatever other than legal remuneration as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show in the exercise of his official functions favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority corporation or Government company referred to in clauseof section 2 or with any public servant whether named or otherwise shall be punishable with imprisonment which shall be not less than but which may extend toand shall also be liable to fine. 19. Mr. Kashyap next relied upon the judgment of the Hon’ble Supreme Court of India in the case of M.R. Purushotham v. State of Karnataka wherein in the facts of that case of course relating to an offence punishable under section 7 read with section 13of the Prevention of Corruption Act 1988 13 Cr. AppealNo.6620 as the complainant did not support the case of demand of bribe and was declared hostile it was observed as under : “When PW1 Ramesh himself had disowned what he has stated in his initial complaint in Exh.P1 before PW4 Inspector Santosh Kumar and there is no other evidence to prove that the accused had made any demand the evidence of PW3 Kumaraswamy and the contents of Exh.P1 complaint cannot be relied upon to conclude that the said material furnishes proof of demand allegedly made by the accused.” In respect of this principle of law learned senior counsel for the appellant convict also relied upon judgments of this Court in the case of Priyanka Kumari versus State of Jharkhand 2020 Eastern Criminal Cases 297 Jharkhand and Bhim Singh versus State of Jharkhand 2020 Eastern Criminal Cases 309 Jharkhand wherein in the facts of those cases where the offence involved was under section 7 of the Prevention of Corruption Act 1988 and where there was no evidence regarding demand of bribe by the appellants of those appeals this Court set aside the conviction of the appellants and acquitted them by giving them the benefit of doubt relying upon the aforesaid settled principle of Mr Kashyap next relied upon the judgment of Hon’ble Supreme Court of India in the case of Trilok Chand Jain v. State of Delhi 4 SCC 761 and submits that as the appellant was engaged by the DTO hence it cannot be said that the alleged money was received by the appellant for the purpose of the motive or reward for inducing by corrupt or illegal means any public servant rather it is the other way round that the public servant engaged the appellant to collect the gratification for him from the complainant hence on this account also the essential ingredients of section 8 of the Prevention of Corruption Act 1988 is not made out against the appellant. 20. Mr. Kashyap further submitted that the falsity of entire trap proceedings stands exposed from the fact that the PW6 complainant in his deposition has categorically stated that 14 Cr. AppealNo.6620 he never approached any authority for the alleged demand of bribe and he never gave any such statement as is attributed to him to have been given to police and he even went to the extent of stating that neither any raid was conducted in his presence nor any money was recovered. It is then submitted that as is evident from the case of the prosecution which has come through the depositions of the witnesses examined by the prosecution in this case only the PW6 had the occasion to depose regarding the demand made by the appellant convict and rest of the witnesses including the members of the trap team have categorically stated that they have not seen giving or taking of money by the appellant convict. 21. Mr. Kashyap then submitted that in this case there is absolutely no evidence regarding the demand of gratification. Therefore it is submitted that no offence punishable under Section 8 of the Prevention of Corruption Act 1988 is made out. It is then submitted that evidence of mere recovery of tainted money with the post trap formalities is by itself is not sufficient to constitute the offence punishable under Section 8 of the Prevention of Corruption Act 1988 so it is submitted that the appellant convict be acquitted of the charge by at least giving him the benefit of doubt. It is lastly submitted that the impugned judgment of conviction and order of sentence be set aside and the appellant be acquitted of the charge. 22. Mr. Suraj Verma learned counsel for the Anti Corruption Bureau on the other hand defended the impugned judgment of conviction and order of sentence and submitted that as the P.W.2 has categorically stated about the facts of the case and his testimony which is corroborated by the testimony of the other prosecution witnesses are sufficient enough to establish the charge for the offence punishable under Section 8 of the Prevention of Corruption Act 1988. Mr. Verma relied upon the judgment of Hon’ble Kerala High Court in the case of Devan alias Vasudevan v. The State reported in 1988 CRI. L. J. 1005 and 15 Cr. AppealNo.6620 submitted that the gravamen of the offence punishable under section 8 of the Prevention of Corruption Act 1988 is acceptance of or attempting to obtain the illegal gratification as a motive or reward for inducing a public servant by corrupt and illegal means and it is not necessary that the recipient of the gratification should in fact have induced the public servant. The receipt of gratification as a motive or reward for the purpose of inducing the public servant by corrupt or illegal means will complete the offence and equally it is necessary that the accused should have had the animus or intent at the time he received the gratification that it is received as a motive or reward for inducing the public servant by corrupt and illegal means and such intention can be inferred from the evidence in each case. Mr Verma next relied upon the judgment of the Hon’ble Supreme Court of India in the case of Parkash Singh Badal and Anr. versus State of Punjab & Ors. 1 SCC 1 wherein it was held by the Court that a public servant can also be held guilty for the offence punishable under section 8 of the Prevention of Corruption Act 1988 if such public servant receives illegal gratification as a motive or reward for inducing other public servant by corrupt or illegal means. It is lastly submitted by Mr. Verma that as the learned trial court taking into consideration the evidence in the record has rightly convicted and sentenced the appellant convict hence there being no merit in this appeal the same be dismissed. 23. Having heard the submissions made at the Bar and after going through the evidence in the record it is crystal clear that there is absolutely no evidence in the record regarding the demand or acceptance of money by the appellant convict on the alleged date of occurrence on 11.11.2014 for the occurrence of which date the appellant accused faced the trial. There is no shadow witness who accompanied the P.W.6 the complainant at the time of alleged handing over of the bribe amount. Though the P.W.3 made an effort by projecting the P.W.2 as the shadow witness but the said solitary testimony of the P.W.3 will not cut 16 Cr. AppealNo.6620 any ice as the P.W.2 himself has not claimed to be a shadow witness rather the P.W.2 as well as all the other witnesses of the prosecution who were the members of the trap team have categorically stated that the P.W.6 alone went to the appellant convict who was present at the relevant time in the official chamber of the DTO and only after he came out and signal others went to the PW2 and PW4 being the persons who caught hold of the hands of the appellant convict. So far as the judgment of Devan alias Vasudevan v. The Staterelied upon by the learned counsel for the Anti Corruption Bureau is concerned true it is that it is not necessary that the person who received the gratification should have succeeded in inducing the public servant. It is not even necessary that the recipient of the gratification should in fact have attempted to induce the public servant. The receipt of gratification as a motive or reward for the purpose of inducing the public servant by corrupt or illegal means will complete the offence and it is necessary that the accused should have had the animus or intent at the time when he receives gratification that it is received as a motive or reward for inducing a public servant by corrupt or illegal means. But the moot question is whether the evidence in the record is sufficient to establish that the appellant convict was the recepient of gratification as a motive or reward for the purpose of inducing the public servant DTO by corrupt or illegal means In paragraph 53 in the case of Parkash Singh Badal v. State of Punjab the Hon’ble Supreme Court of India summarised the ingredients of the offence punishable under section 8 of the Prevention of Corruption Act 1988 as under: 53. If Section 8 is analytically dissected then it would read as i) Whoever ii) accepts or obtains gratification from any person iii) for inducing any public servantiv) to render or attempt to render any services or disservice v) with any public servant17 Cr. AppealNo.6620 Section 8 of the Prevention of Corruption Act 1988 complementary to section 7 of that Act and is intended to reach aiders and abetters of the offence. It therefore extends to all persons whether or not they are public servants. The words “accepts or obtains” appears in both section 7 as well as 8 of the Prevention of Corruption Act 1988. It is by now a settled principle of law that the unsolicited payment of money in the absence of any demand for that does not constitute “accepts or obtains” as envisaged in section 7 of the Prevention of Corruption Act 1988 and for establishing “accepts or obtains” as envisaged in the said section 7 it has to be proved beyond a reasonable doubt that the accused has demanded the gratification the reason being it could not have been the intention of the legislature that if an accused has received gratification he will be convicted without taking into consideration whether he actually demanded any kind of gratification because this would result in putting the innocent ones behind bars who didn’t even know about such circumstances or have been trapped. So in order to fulfill the purpose of the Prevention of Corruption Act 1988 proof of demand has been made an indispensable requirement for an offence under Section 7 and 13 of the Act and it has been held that mere possession or recovery of the currency notes from the accused does not satisfy the demand for illegal gratification to constitute the said offence. The same analogy will be squarely applicable to the offences punishable under section 8 of the Prevention of Corruption Act 1988 also. Thus in view of the settled principles of law as discussed above and relied upon by the learned senior counsel for the appellant convict which in no uncertain terms has laid down the law that the demand for the bribe money is sine qua non to convict the accused for the offences punishable under Sections 7 and 13 of the Prevention of Corruption Act 1988 this court has no hesitation in holding basing upon the same analogy that the demand for the bribe money by the accused person is also sine qua non to convict the 18 Cr. AppealNo.6620 accused for the offence punishable under Section 8 of the Prevention of Corruption 1988 as well and mere recovery of tainted money by itself without any proof of demand is insufficient to establish the charge for the offence punishable under section 8 of the Prevention of Corruption Act 1988. The P.W.6 who was the sole witness as per the case of the prosecution regarding the demand of bribe by the appellant convict from him could have stated about the demand of bribe made by the appellant convict on 11.11.2014 for the occurrence of which date the appellant convict faced the trial. But the PW 6 has categorically stated that he never approached any authority for the alleged demand of bribe and he never gave any such statement as is attributed to him to have been given to police and he further stated that neither any raid was conducted in his presence nor any money was recovered. The rest of the witnesses including the members of the trap team have categorically stated that they have not seen giving or taking of money by the appellant convict and the PW3 has stated that he cannot say whether he had seen giving and taking of bribe. There is nothing on record to disbelieve this testimony of the P.W.6 that he did not give any money to the appellant accused. No other witness has deposed about the demand of money by the appellant convict on 11.11.2014 as none of the other witnesses has claimed to be an eyewitness of the P.W.6 handing over of the alleged bribe amount to the appellant convict. In the absence of such evidence regarding the essential ingredients of demand on 11.11.2014 this Court has no hesitation in holding that the evidence in the record is insufficient to establish the charge for the offence punishable under Section 8 of the Prevention of Corruption Act 1988 against the appellant convict beyond a reasonable doubt and this Court is of the considered view that this is a fit case where the appellant accused be acquitted by giving him the benefit of doubt. 25. Accordingly the impugned Judgment of Conviction dated 20.10.2020 and Order of Sentence dated 31.10.2020 passed by the 19 Cr. AppealNo.6620 learned Special Judge A.C.B. Hazaribag in Special Case No.45 of 2014 is set aside and appellant convict namely Suraj Singh @ Deepak Singh is acquitted by giving him the benefit of doubt. Perusal of the record reveals that the appellant accused namely Suraj Singh @ Deepak Singh is in custody. In view of his acquittal he is directed to be released from custody unless his detention is required in connection with any other case. In the result this appeal is allowed. Anil Kumar Choudhary J.) High Court of Jharkhand Ranchi Dated the 24th of March 2021 AFR Sonu Gunjan

Simultaneous filling of a Civil Complaint cannot be a ground to quash a criminal complaint: Odisha High Court

Where the factual foundation for an offence is laid down, the court must be reluctant and should not hasten to quash the proceedings even on the premise that one or more ingredients have not been stated or do not appear to be satisfied. A single bench comprising of Justice S.K. Panigrahi adjudicating the matter in Prasanta Kumar Patra & another v. State of Odisha & Another (CRLMC-Appeal u/s-482 CrPC No.200 of 2021) dealt with the issue of quashing the pending proceedings filed u/s 482 CrPC. The Petitioner in the present case prays before the HC to quash the proceeding pending before the Sub-Divisional Judicial Magistrate against him under section 420,406,465,468/34 of IPC. The petitioner & the Respondent in the said case entered into an agreement on 31.05.2015 with a landowner to jointly purchase a plot for a consideration of Rs 1,35,00,000/- but were only able to pay Rs 44,00,000/-. There was an agreement and mutual understanding between the parties that they would eventually sell the plot and the sale proceeds would be shared by both the parties in the ratio of 59:41. But they failed to pay the balance amount i.e. Rs. 91,00,000 in the stipulated time which led the landowner to file a suit against both parties. The suit was dismissed on 22.10.2016 and a compromise between the landlord and both the parties were done and it was decided that the sum of Rs. 64,00,000/- would be remitted and Rs.31,00,000/- is to be paid within two and half months. It was also agreed that the amount will be raised by sub-dividing the plot and selling those plots to various buyers. The respondents later learned that the landlord had died and the Petitioners have jointly purchased the plot in their name and re-sold the property to multiple buyers without their consent and have retained all the sale proceeds themselves and in response, the Respondents filed a case against the Petitioner claiming the share of net profit earned by the Petitioners. Also, the Respondents after the institution of the suit filed an FIR against Petitioner for investigation. The petitioner in response contended that the suit is filed to harass and humiliate the petitioners and alleged that the Respondents had requested that the amount invested by them be refunded back by the said owner. They also contended that the complaint is mala fide and is made out of a personal grudge. The court after examining the allegation of the FIR and contents of the joint compromise petition filed by the deceased landowner found that it was nowhere mentioned that the Respondents were desirous to exit out of the agreement or had requested to get back their initial deposit of Rs.26,00,000/-. Also, some documents support the fact that the Petitioners had sold sub-plots through various sale deeds and received consideration. On multiple requests only Rs. 17,12,400/- was transferred to the Respondent which is lesser than her share from the net profit arising out of the sale. The petitioner also didn’t participate in the investigation process and failed to appear before the Investigation officer. And hence there is a prima facie case against the Petitioner even without looking into the merits of the case. The Court relied upon the judgments Lee Kun Hee v.  State of U.P ,  Medchi Chemicals Pharma Pvt. Ltd. v. Biological E. Ltd. and permitted the simultaneous filing of a civil complaint and held that it cannot be ground quash a criminal complaint. Also looking into the prayer of the Petitioner to quash the proceeding at an initial stage, the court relied upon Rashmi Kumar v. Mahesh Kumar Bhada and Amit Kapoor v. Ramesh Chander and it was held that “If the records disclose the commission of a criminal offence and the ingredients of the said offence are satisfied, then such criminal proceedings would not be quashed merely because a civil wrong has also been committed. The power cannot be invoked to stifle or scuttle a legitimate prosecution. The factual foundation and ingredients of an offence being satisfied, the Court will not either dismiss a complaint or quash such proceedings in exercise of its original jurisdiction.” Click here for the Judgement

HIGH COURT OF ORISSA CRLMC No.2021 In the matter of an application under Section 482 of the Criminal Procedure Code 1973) Prasanta Kumar Patra and another State of Odisha and another For Petitioners S. Panda and D. K. Mohapatra M s. Devashis Panda … Opposite Parties Versus For Opposite Parties M s. Manoj Kumar Mohanty Additional Standing Counsel M s. B. P. Pradhan B. R. Sahu S. Rath and R. Satapathy For Informant) PRESENT : THE HON’BLE SHRI JUSTICE S. K. PANIGRAHI Date of Hearing 06.04.2021 Date of Judgment 07.05.2021 S. K. Panigrahi J. 1. This petition under Section 482 of the Code of Criminal Procedure 1973 has been filed with a prayer to quash the proceedings of C.T. Case No.4110 of 2020 pending before the learned SDJM Bhubaneswar which arises out of Badagada P.S. Case No.2720 under Sections 420 406 465 468 34 IPC and all proceedings consequent thereto. 2. The allegations in the FIR are summarised herein below: 2 a. The complainant opposite party No.2 lodged a complaint on 26.09.2020 at Badagada P.S. The contents of the complaint as set out implicates petitioner No.1 and petitioner No.2 for committing offences punishable under Sections 420 406 465 468 34 of the IPC. b. According to the complainant opposite party No.2 she was induced by petitioner No.1 to jointly purchase a plot situated at Khata No.450 92 Chaka No.221 Plot No.486 area Ac.1.790 decs. in Mouza Brahman Jharilo from one Subash Chandra Patra for a total consideration of Rupees 1 35 00 000 Bhubaneswar. A compromise was arrived at by the parties wherein the agreement dated 30.11.2015 stood nullified and it was agreed that the present opposite party No.2 and petitioner No.2 would pay land owner a sum of Rs.95 00 000 out of which a sum of Rs.64 00 000 was to be remitted on the date of drawing up of the compromise and the remaining Rs.31 00 000 was undertaken to be paid within a period of two and half months. It was also agreed that the outstanding amount of Rs.31 00 000 payable to the land owner would be raised by sub dividing the plot and selling the sub plots to various other buyers. The suit was disposed of on the terms of the aforesaid compromise on 22.10.2016. d. The complainant has claimed that the petitioners thereafter put her off every time she inquired about the execution of the Sale Deed and sale proceeds. Subsequently after passage of some time the complainant learnt that the land owner had died and before his death the petitioners had jointly purchased the plot in their names along with others without her knowledge. 4 Furthermore they had re sold the property to multiple parties without her consent and had retained all the sale proceeds themselves thereby cheating the complainant and deriving unlawful gains. The complainant also alleges that the petitioners have criminally intimidated her. 3. The learned counsel for the petitioners earnestly contended that the allegations in the FIR are false and have been lodged with an ulterior motive to harass and humiliate the petitioners. It was submitted that the opposite party No.2 had failed to pay the land owner in the first instance thereby necessitating the filing of C.S. No.1831 of 2016 by the land owner. In the compromise arrived at as a result of the Civil Suit above mentioned it is alleged that the opposite party No.2 had requested that the amount invested by her be refunded back by the said owner. Further the learned counsel for the petitioners submits that the opposite party No.2 filed C.S. No.1097 of 2020 on 17.07.2020 which is pending for adjudication before the Civil JudgeBhubaneswar claiming her share of the net profit earned by the present petitioners. It is after the institution of that suit did the opposite party No.2 file the impugned F.I.R. as a tool of harassment which is nothing but an attempt to clothe a civil dispute as a criminal dispute. 4. Per contra the learned counsel for the opposite party No.2 vehemently opposed the submissions made by the learned counsel 5 for the petitioners. He further contended that the case in hand is hungry for a proper trial and nipping the same at the bud at this stage will lead to gross miscarriage of justice. The learned counsel for the opposite party No.2 further submitted that a prima facie case is made out against the petitioners and it is in the interest of justice that proper investigation be allowed in the present matter failing which opposite party No.2 shall suffer grave and irreparable loss. 5. Heard the learned counsel for the rival parties of the case and perused the case diary to delve deeper into the case. Before adverting to the facts of the case at hand it is to be borne in mind that it becomes imperative while dealing with a case with respect to Section 482 of the Cr.P.C. which is the plenary power and makes it obligatory for the High Court to exercise the same with utmost care and caution. The width and amplitude of the power demands that its exercise is sparing in nature and is resorted to only in cases where the Court is of the unambiguous view that continuance of the prosecution would be nothing but an abuse of the process of law. It cannot be countenanced that while exercising jurisdiction under Section 482 of the Cr.P.C. the High Court would not embark upon a roving enquiry whether the allegations in the complaint are likely to be established by the evidence or not. That is the function of the trial court when such evidence is presented before it. 6 6. It becomes imperative at this juncture to briefly examine the allegations contained in the F.I.R. vis a vis the contents of the joint compromise petition filed by the deceased land owner opposite party No.2 and petitioner No.2 in C.S. No.1831 of 2016 in order to determine whether a prima facie case is made out against the petitioners in the impugned F.I.R. As submitted by the learned Counsel for the petitioners it is nowhere mentioned or indicated that opposite party No.2 was desirous of exiting the agreement or had requested that her initial deposit of 26 Lakhs be returned to her. Furthermore it is recorded in that very compromise petition that the then defendants had jointly made provisions undertaken to make provisions to sell the sub plots to other purchasers. It is contended that it emerges from the documents put on record that the petitioner No.2 had sold the sub plots through various registered sale deeds for which he has received consideration. It is submitted that after multiple requests only an amount of Rs.17 12 400 was transferred to the opposite party No.2 which seems unlikely to be inclusive of her share of the net profit from the sale of the sub plots. It is also noted that despite three notices being served on the petitioners they failed to appear before the investigating officer to join the investigation. It is thus contended that without going into 7 the merits of the case that a prima facie case is made out against the petitioners. 7. As held in Lee Kun Hee v. State of U.P.1 by the Hon’ble Supreme Court of India that in cases involving cheating wherein a party has not performed its obligations the complaint involves both civil and criminal liability. Deprivation caused by the complaint of cheating could not be solely recovered through only civil proceedings. Simultaneous filing of a civil complaint therefore cannot be a ground to quash criminal complaint. Both criminal law and civil law remedy can be pursued in diverse situations. As a matter of fact it was also held by the Hon’ble Supreme Court in the case of Medchi Chemicals Pharma Pvt. Ltd. v. Biological E. Ltd.2 “…they are not mutually exclusive but clearly co extensive and essentially differ in their content and consequence. The object of criminal law is to punish an offender who commits an offence against a person property or the State for which the accused on proof of this offence is deprived of his liberty and in some cases even his life. This does not however affect civil remedies at all for suing the wrongdoer. anathema to suppose that when a civil remedy is available a criminal prosecution is completely barred. The two types of actions are quite different in content scope and impart.” In the present case there cannot be any dispute that there is no legal bar against continuance of the complaint nor can it be said 1AIR 2012 SC 1007 2AIR 2000 SC 1869 8 that the allegations in the complaint taken on its face value and accepted in their entirety do not constitute an offence. 8. Another argument advanced by the petitioners for quashing the complaint is that the complaint is mala fide and aimed at wreaking of vengeance with a view to spite the accused due to personal grudges. In Sheonandan Paswan v. State of Bihar3 it was observed: is well established proposition of law that a criminal prosecution if otherwise justifiable and based upon adequate evidence does not become vitiated on account of mala fides or political vendetta of the first information or the complaint.” Therefore the issue of mala fide becomes relevant and applicable only when the complaint can be demonstrated to be patently false untenable in the eye of law. In the present case a bird’s eye view of the FIR would show that the offences alleged are serious in nature and facts are elucidated in such a manner that the court cannot say that mala fide is conspicuously manifested in the 9. It is trite in law as laid down by the Apex Court in Pankaj Kumar v. State of Maharashtra4 that the scope and ambit of powers of the High Court under Section 482 of Cr.P.C. has been enunciated and reiterated by this Court in a series of decisions. Thus it would 3(1983) 1 SCC 438 4AIR 2008 SC 3077 9 suffice to state that though the powers possessed by the High Courts under the said provisions are wide but they should be exercised in appropriate cases i.e. ex debito justitiae to do real and substantial justice for the administration of which the courts alone exist. The inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim and caprice. The powers have to be exercised sparingly with circumspection and in the rarest of rare cases where the court is convinced that allowing the proceeding to continue would be an affront on the process of the court or that the ends of the justice beseech that the proceedings be quashed. In Rashmi Kumar v. Mahesh Kumar Bhada5 while considering the power of High Court to quash the proceeding at initial stage the Hon’ble Supreme Court has held that: “The High Court should sparingly and cautiously exercise the power under Section 482 of the Code to prevent miscarriage of justice. The High Court would be loath and circumspect to exercise its extraordinary power under Section 482 of the Code or under Article 226 of the Constitution. The Court would consider whether the exercise of the power would advance the cause of justice or it would tantamount to abuse of the process of the Court. Social stability and order require to be regulated by proceeding against the offender as it is an offence against the society as a whole. This cardinal principle should always be kept in mind exercise of the inherent power vested in the Court.” 5(1997) 2 SCC 397 10 It is therefore the settled position of law that this inherent power should be exercised by the High Court sparingly where parties are left with to prevent abuse of process of court or to give effect to any order under the Code or to secure the ends of justice. Such a power is not be invoked or exercised on mere asking. Furthermore in Amit Kapoor v. Ramesh Chander6 the Hon ble Supreme Court has laid down that the Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach to such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere. Where the factual foundation for an offence has been laid down the courts must be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is otherwise substantial compliance with the requirements of the offence. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. Where 6(2012) 9 SCC 460 11 exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave errors that might be committed by the sub ordinate Courts even in such cases the High Court should be loath to interfere at the threshold to throttle the prosecution in exercise of its inherent powers. Another very significant caution that the Courts have to observe is that it cannot examine the facts evidence and materials on record to determine where there is sufficient material on the basis of which the case would end in a conviction. The Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and if so whether or not it is an abuse of the process of Court culminating in injustice. If the records disclose commission of a criminal offence and the ingredients of the said offence are satisfied then such criminal proceedings would not be quashed merely because a civil wrong has also been committed. The power cannot be invoked to stifle or scuttle a legitimate prosecution. The factual foundation and ingredients of an offence being satisfied the Court will not either dismiss a complaint or quash such proceedings in exercise of its original jurisdiction. 10. In the present case upon a close reading of the FIR it is not possible to come to the conclusion that they do not make out a prima facie case against the petitioners for the offences alleged therein. 12 11. Consequently it becomes imperative that the matter be investigated further and the petitioners shall face the rigour of trial respect of the alleged offences to meet the ends of justice. 12. The inherent jurisdiction of this Court does not warrant to be This Court under Section 482 of Cr. PC at this stage. Considering the law laid down by the Apex Court in the cases cited above the aforesaid discussion submissions made and taking into account a holistic view of the facts and circumstances of the case at hand this Court is not inclined to entertain the instant petition. Accordingly this Court refuses to exercise the inherent power under Section 482 of Cr.P.C. and consequently dismiss the present petition. Orissa High Court Cuttack The 7th day of May 2021 AKK LNB AKP Judge

Objection of territorial jurisdiction has to be construed after taking all averments in the plaint to be correct: High Court of Delhi

When an objection to jurisdiction is raised by way of demurrer and not at the trial, the objection must proceed on the basis that the facts as pleaded by the initiator of the impugned proceedings are true. Objection of territorial jurisdiction has to be construed after taking all averments in the plaint to be correct. While considering a plaint from the standpoint of Order VII Rule 10 CPC, it is only the plaint and the documents filed along with it that need to be seen and the same was upheld by High Court of Delhi through the learned bench led by Justice Asha Menon in the case of SAISONS TRADE AND INDUSTRY PRIVATE LIMITED vs. MAITHRI AQUATECH PRIVATE LIMITED& ORS. [CS(COMM) 214/2021] on 02.03.2022. The facts of the case are that the present application has been filed on behalf of defendant under Order VII Rule 10 read with Section 151 of the Civil Procedure Code 1908 (for short „CPC‟) for return of the plaint as well as the application of the plaintiff under Section 20(b) of the CPC seeking leave to file the suit in Delhi as the suit was filed in Delhi but neither the plaintiff nor the defendant was located in Delhi. The plaintiff had an office in Mumbai and the defendant was located in Hyderabad and therefore, under Section 20 CPC, leave of this court to file the suit here should not have been sought. The plaintiff’s counsel submitted that the jurisdiction of the court had been invoked under Section 20(b) CPC. The defendant was carrying on business through an interactive official website, which could be accessed from anywhere in India, including Delhi. Further it was stated since the defendants have their registered offices in Delhi, and thus, Delhi could be deemed to be its principal place of business. The defendant’s counsel stressed on the lack of jurisdiction. He urged that the plaint be returned for being filed in the court with jurisdiction, namely Hyderabad, where the defendant No.1 was located. In view of the facts and circumstances, the Court held that the plaintiff is entitled to file the suit before this Court and the leave, as sought for, is to be granted as it is not only evident that the website can be accessed by the residents of Delhi and the products of defendant is delivered at Delhi, but also the advertisers/sellers of the products are actually located in Delhi carrying on business and working for gain here. The Court observed, “When an objection to jurisdiction is raised by way of demurrer and not at the trial, the objection must proceed on the basis that the facts as pleaded by the initiator of the impugned proceedings are true. Objection of territorial jurisdiction has to be construed after taking all averments in the plaint to be correct. While considering a plaint from the standpoint of Order VII Rule 10 CPC, it is only the plaint and the documents filed along with it that need to be seen.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Pronounced on: 2nd March 2022 CS(COMM) 214 2021 SAISONS TRADE AND INDUSTRY PRIVATE LIMITED ..... Plaintiff Through: Mr. Neeraj Grover Mr. Abhijeet Deshmukh Ms. Meenakshi Ogra and Mr. Vikram Singh Advocates. MAITHRI AQUATECH PRIVATE LIMITED& ORS. Defendants Through: Mr. Vinay Navare Advocate with Mr. Jay Kishor Singh Advocate for D 1. Mr. Prithvi Raj Sikka Advocate for D 2 & D 3. HON BLE MS. JUSTICE ASHA MENON O R D E R I.As. 13230 2021 & 6064 2021r w 151 CPC seeking leave of the court to file the suit in Delhi) This order will dispose of the application filed on behalf of defendant No.1 under Order VII Rule 10 read with Section 151 of the Civil Procedure Code 1908 for return of the plaint as well as the application of the plaintiff under Section 20(b) of the CPC seeking leave to file the suit in Delhi. 2. It is the contention of Mr. Vinay Navare learned senior counsel for the defendant No.1 that the suit has been filed in Delhi whereas neither the plaintiff nor the defendant No.1 was located in Delhi. According to learned senior counsel for defendant No. 1 the plaintiff had an office in Mumbai and the defendant No.1 was located in Hyderabad and therefore under Section 20 CPC leave of this court to file the suit here could not have even been sought. Relying on the judgment of a Coordinate Bench of this Court in Escorts Limited v. Tejpal Singh Sisodia 2019 SCC OnLine Del 7607 it was submitted that online activity through a website which was accessible from all parts of the world could not vest any and every court with jurisdiction. Moreover there was no document placed on the record to show that the defendants No.2 and 3 had any business in Delhi or that some person had actually accessed the website in Delhi and purchased the commodity from the defendants No.2 and 3. Thus when the defendant No.1 had not acquiesced to the jurisdiction of this court the plaint was liable to be returned. Reliance in this regard has been placed on the order of a Coordinate Bench of this Court in Ajay Pal Sharma vs. Udaiveer SinghCPC. The defendant No.1 was carrying on business through an interactive official website which could be accessed from anywhere in India including Delhi. The defendants No.2 & 3 were marketing and selling agents of defendant No.1 having their registered offices in Delhi and thus Delhi could be deemed to be its principal place of business. Reliance has been placed on the judgment of a Division Bench of this Court in World Wrestling Entertainment v. Reshma Collection 2014 SCC OnLine Del 2031. Therefore the Delhi courts had jurisdiction to try the matter. It was submitted that on the averments in the plaint there was nothing whereby it could be held that this court has no jurisdiction for the plaint to be returned. At best if two courts had jurisdiction then the plaintiff had sought leave to sue in Delhi which may be granted. Reliance has also been placed on the decision of the Bombay High Court in Suresh Kumar Vs. Maharashtra State Electricity Distribution Company Ltd. 2014 SCC OnLine Bom 2873 to submit that where two courts had jurisdiction the leave of the court alone was required to proceed in one of the jurisdictions which the plaintiff had sought but in any case the suit could not be dismissed as prayed for in the application. Further it has been submitted that merits of the case cannot be considered at this juncture. Reliance has been placed on Exphar SA & Anr. Vs Eupharma Laboratories Ltd. & Anr. 2004SCC688 Begum Sahiba Sultan Vs. Mohd. Mansur Ali Khan & Ors 2007 SCC OnLine SC 504 and RSPL Limited Vs. Mukesh Sharma & Ors. 2016 SCC OnLine Del 4285. 10. The Patents Act 1970 provides in Section 104 that no suit for a declaration under Section 105 or for any other relief under Section 106 or for infringement of patents shall be instituted in a court inferior to that of a District Court “having jurisdiction to try the suit”. Therefore the situs for filing of this suit would be governed by the provisions of CPC. Section 15 of the CPC provides that every suit is to be instituted in the lowest grade competent to try it. Section 16 of the CPC provides that subject to pecuniary and other limitations prescribed by law suits in respect of the immovable property of various kinds are to be instituted in the court within whose local limits the property is situated. If immovable property was situated within jurisdiction of different courts the suit could be instituted in any one of these courts within the local limits of whose jurisdiction any portion of the property was situated. Section 18 of the CPC deals with the place of the institution of the suits when local limits of jurisdiction of courts were uncertain. Section 19 of the CPC provides that a suit for compensation for wrong done to the person or to movable property if done within the local limits of the jurisdiction of one court whereas the defendant resided or carried out business etc. within the local limits of the jurisdiction of another court the suit could be instituted at the option of the plaintiff in either of the said courts. Finally Section 20 of the CPC provides as under: “20. Other suits to be instituted where defendants reside or cause of action arises.—Subject to the limitations aforesaid every suit shall be instituted in a Court within the local limits of whose jurisdiction— the defendant or each of the defendants where there are more than one at the time of the commencement of the suit actually and voluntarily resides or carries on business or personally works for gain or any of the defendants where there are more than one at the time of the commencement of the suit actually and voluntarily resides or carries on business or personally works for gain provided that in such case either the leave of the Court is given or the defendants who do not reside or carry on business or personally works for gain as aforesaid acquiesce in such institution or The cause of action wholly or in part arises. or in respect of any cause of action arising at any place where it has also a subordinate office at such place.” In the present case the „memo of parties‟ states that the plaintiff has its address at Andheri Mumbai. The defendant No.1 is located at Cherlapally Hyderabad Telangana. The defendant No.2 is located at Mayapuri Industrial Area Phase II New Delhi and the defendant No.3 has its address at Karol Bagh New Delhi while the defendant No.4 is located in Las Vegas USA. It is apparent that out of the four defendants two are located in Delhi. Merely because the defendant No.1 claims that he has not acquiesced to the institution of the suit in Delhi does not render the court powerless under Section 20(b) of the CPC. The plaintiff has in fact filed I.A. 6064 2021for leave of the court to institute the suit at Delhi. The plaintiff has therefore complied with the provisions of Section 20(b). It would of course lie within the discretionary powers of the court to grant or refuse the leave. 12. That apart Section 20(c) of the CPC provides for jurisdiction inhering in that court where the cause of action wholly or in part arises. The plaintiff has filed as Document No.23 printout of the IndiaMart Web page for Water Treatment and Purification Plant and Atmospheric Water Generator where there is a product brochure relating to brand make W360 and at the „contact seller‟ the details of the defendant No.2 Sophisticated Industrial Materials Analytic Labs Pvt. Ltd. is given. A brochure of the Defendant No.2 of the product „MEGHDOOT Atmospheric Water Generator with Remineralizer‟ is placed at Page no.443 of the Plaintiff‟s Documents which is the product manufactured by the Defendant No.1wherein the defendant No.2 is named as the promoter and marketer while the defendant No. 3 is named as the seller. It is well settled that while dealing with an objection of jurisdiction raised pre trial under Order VII Rule 10 CPC the averments in the plaint and the documents annexed thereto are alone to be considered. Thus it has to be seen whether the plaintiff has disclosed sufficient justification for permitting the trial of the suit in this court.the issue related to Section 62 of the Copyrights Act 1957 what is relevant for our purpose is the following observation of the Supreme Court: “9. Besides when an objection to jurisdiction is raised by way of demurrer and not at the trial the objection must proceed on the basis that the facts as pleaded by the initiator of the impugned proceedings are true. The submission in order to succeed must show that granted those facts the court does not have jurisdiction as a matter of law. In rejecting a plaint on the ground of jurisdiction the Division Bench should have taken the allegations contained in the plaint to be correct….” emphasis added) 15. The judgment of the Division Bench of this Court in RSPL Limited was again in relation to infringement of trademark and copyright but while dealing with the application under Order VII Rule 10 CPC it was held that the objection of territorial jurisdiction has to be construed after taking all averments in the plaint to be correct and that while “considering a plaint from the standpoint of Order VII Rule 10 CPC it is only the plaint and the documents filed along with it that need to be seen”. In World Wrestling Entertainmentthe Division Bench of this Court held that in a website transaction the ad on the website was only an invitation to offer and not an offer just as a menu in a restaurant. If an invitation is accepted by a customer in Delhi then it becomes an offer made in Delhi for purchasing of the goods advertised on the website as is the case in the present matter where advertisement is made on IndiaMart by the defendants No.2 & 3 of the products of the defendant No.1. The Division Bench in World Wrestling Entertainment considered it safe to presume that though the web server was not located in Delhi but the customers in Delhi who wished to purchase an article available on the website of the appellant in that case could access the website on their computer. The purchaser would place the order for the article from his computer in Delhi. The payment would be made either through credit or debit card or through cash on delivery again in Delhi and ultimately the goods would be delivered to the customer in Delhi. Therefore it was concluded that the rules that applied to contracts concluded over the telephone would apply with equal vigour to contracts concluded over the internet. In other words contracts would be completed at the place where the acceptance is communicated. When the transaction between the seller and purchaser occurs through internet i.e. on a website the offer and acceptance take place instantaneously and the acceptance is also instantaneously communicated to the customer through the internet at Delhi. Therefore in such a case part of the cause of action would arise in Delhi. 17. We can apply these principles to the facts of the present suit. From the documents filed at pages 437 466 of the Plaintiff‟s Documents it is not only evident that the website can be accessed by the residents of Delhi and the products of defendant No.1 would be delivered to them at Delhi additionally the advertisers sellers of the products being defendants No.2 & 3 are actually located in Delhi carrying on business and working for gain here. The product as reflected in the brochure of the Defendant No. 2 at page no. 443 and as advertised on IndiaMart by the defendants No.2 & 3 at page no. 437 establish that it is the same product of the defendant No.1 that is advertised on its website the printout of which is placed on the record as Document No.12 of the Plaintiff‟s Documents. Any one accessing the website can place an order for the products of defendant No.1 from Delhi make payments to the seller and obtain the product in Delhi. Thus seen from all angles it is clear that the plaintiff is entitled to file the suit before this Court and the leave as sought for is to be granted. 18. As regards the judgments relied upon by the learned counsel for the defendants the facts in Escorts Limitedas also Ajay Pal Sharma supra) relate to defamatory statements whereas the judgments relied upon by the plaintiffs are apposite as they relate to conclusion of contract in relation to sale and cause of action in respect of online sale transactions. Therefore the judgments relied upon by the learned counsel for the defendant No.1 are not applicable to the facts of the present case. 19. Accordingly the application i.e. 6064 2021 for leave is allowed. The application I.A. 13230 2021 under Order VII Rule 10 CPC is 20. The applications are disposed of. CS(COMM) 214 2021 & I.A. 6062 202121. An opportunity is granted to the defendants No.2 & 3 to file written statements alongwith affidavit of admission denial of documents filed by the plaintiff within four weeks with advance copies to the learned counsel for the plaintiff who may file replications to the written statements alongwith affidavit of admissions denial of documents filed by defendants No.2 & 3 within four weeks thereafter. Only one opportunity shall be given to the defendants No.2 & 3 to do the needful. 22. The case be listed now for framing of issues on 21st July 2022. 23. The order be uploaded on the website forthwith. MARCH 02 2022 ASHA MENON)

Serious offences of mental depravity cannot be quashed on ground of settlement between the parties: High Court of Bombay

Rare and serious offences such as assassination, kidnapping, dacoity, Rape etc. cannot be properly disregarded even if the case has been resolved between the victim or relatives of the victim and the perpetrator. These crimes are not private and have significant social implications. This was held in ABC vs The State of Maharashtra and others [CRIMINAL WRIT PETITION NO. 1399 OF 2021] in the High Court of Bombay by Honourable Justice S. S. SHINDE & MANISH PITALE. The facts, in this case, are that the petitioner has deceived the victim from the beginning by making a false marriage commitment and not meeting the promise. Secondly, the petitioner committed a serious offence under Section 313 of the IPC apart from the violation under Section 376 of the IPC, in which they had compelled the victim on two occasions to end her pregnancy. The charges of the FIR reveal not only the offence punishable in accordance with Article 376 of the IPC. Learned counsel for the petitioner and respondent submits that the parties have amicably settled the dispute and therefore, the FIR registered under sections 376, 313 and 406 of the Indian Penal Code may be quashed. Respondent has filed an affidavit in which she stated that the settlement is a voluntary act and, thus, the disputed FIR can be abrogated. Learned APP submits that there are serious allegations made against the petitioner in the FIR. The petitioner has not only committed an offence punishable under Section 376 but even under Section 313 of the IPC. It is submitted that outcome of the impugned FIR has a great impact on society. Therefore, the prayer for quashing FIR may not be entertained. The court relied on the Hon’ble Supreme Court in the case of Gian Singh Vs. State of Punjab stated that “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.” The court also remarked that in the case of Anurag Soni Vs. The State of Chattisgarh stated that “if an accused from the very beginning has given a promise of marriage without any intention to fulfil that promise and in lieu of such promise that the accused will marry her, she gave her consent for sexual intercourse with the accused, then such consent would not amount to valid consent.”

on 05 04 2021 on 06 04 1 9CRWP 1399 202110 SCC 3032(2017) 9 SCC 6413(2019) 5 SCC 688Bhagyawant Punde on 05 04 2021 on 06 04 3 9CRWP 1399 2021to secure the ends of justice ortoprevent abuse of the process of any Court. In whatcases power to quash the criminal proceeding orcomplaint or F.I.R may be exercised where the offenderand victim have settled their dispute would depend onthe facts and circumstances of each case and nocategory can be prescribed. However before exercise ofsuch power the High Court must have due regard toBhagyawant Punde on 05 04 2021 on 06 04 4 9CRWP 1399 2021is inaffirmative the High Court shall be well within itsjurisdiction to quash the criminal proceeding.[Underlines added]8.The law laid down in the case of Gian Singhhas beenfurther reiterated in the case of Parbatbhai Aahir @ ParbatbhaiBhimsinhbhai Karmurand State of M.P. Vs.Laxmi Narayan and Ors(supra). 9.In State of M.P. Vs. Laxmi Narayan and OrstheSupreme Court has observed as under:“15. Considering the law on the point and the otherdecisions of this Court on the point referred tohereinabove it is observed and held as under:15.1That the power conferred under Section 482 of theCode to quash the criminal proceedings for the non compoundable offences under Section 320 of the Codecan be exercised having overwhelmingly andpredominantly the civil character particularly thosearising out of commercial transactions or arising out ofmatrimonial relationship or family disputes and when theBhagyawant Punde on 05 04 2021 on 06 04 6 9CRWP 1399 2021decided on 9th April2019 in para 15 observed thus: “15.Now so far as the submission on behalf of theaccused appellant that the accused had marriage withPriyanka Soni on 10.06.2013 and even the prosecutrixhas also married and therefore the accused may not beconvicted is concerned the same cannot be accepted.The prosecution has been successful by leading cogentevidence that from the very inspection the accused hadno intention to marry the victim and that he had malafide motives and had made false promise only to satisfythe lust. But for the false promise by the accused tomarry the prosecutrix the prosecutrix would not havegiven the consent to have the physical relationship. Itwas clear case of chearing and deception.As observed hereinabove the consent given bythe prosecutrix was on misconception of fact. Suchincidents are on increase nowadays. Such offences areagianst the society. Rape is the most morally andphysically reprehensible crime in a society an assulat onthe body mind and privacy of the victim. As observed bythis Court in a catena of decisions while a murdererdestroys the physical frame of the victim a rapistdegrades and dfiles the soul of helpless female. RapeBhagyawant Punde on 05 04 2021 on 06 04 8 9CRWP 1399 20219 Supreme Court Cases 608.6 18 Supreme Court Cases 191.7 14 Supreme Court Cases 475.Bhagyawant Punde on 05 04 2021 on 06 04 9 9CRWP 1399 20214 Supreme Court Cases 46.Bhagyawant Punde

Arbitrator to be appointed even after respondent’s explicit refusal of the proposed arbitrator : Delhi High Court

Resolving disputes that are bound to arise between parties in contract through arbitration clause is an age-old practice, however in the situation where one party refuses to comply and respect the arbitration clause in the contract, it provides the other party the right to seek its invocation in court and have a arbitrator be rightfully appointed. This was held in the judgment passed by a single bench judge comprising HON’BLE MR. JUSTICE SURESH KUMAR KAIT, in the matter of RAJ SUJAN & ANR V. MS GEAR UP BUILDERS PVT LTD & ORS.( ARB.P. 558/2021) dealt with an issue where the petitioner filed for appointment of an arbitrator in compliance to terms of the Development Agreement-cum-GPA, in the situation of respondent’s refusal of appointment of the proposed Arbitrator the petitioner to resolve the disputes. The petitioners are the absolute owners of a plot in Jubilee Hills, Hyderabad, for which they had entered into a registered Development Agreement-cum GPA dated 14.05.2012 with the respondent for development on the aforesaid property of petitioners. The respondents were required to complete the construction within 21 months or in any case within a grace period of 3 months, i.e. by 23.10.2014. However, respondents were unable to complete the project on time and sought for further extension of time and the same was extended by 5 months, and in this way, the construction was to be completed by 31.03.2015. But even after extension of time, the construction was not completed. According to petitioners, various communications were made to respondents through email and respondents kept on assuring petitioners that the construction will be completed at the earliest. But after causing substantial delay, the respondents abandoned the work on site and refused to engage with the petitioners and in such circumstances, petitioners were constrained to send legal notice dated 15.03.2021 through their counsel to the respondents seeking appointment of Sole Arbitrator. However, respondent through its counsel, sent a reply dated 27.03.2021 declining appointment of the proposed Arbitrator mentioned in the aforesaid notice dated 15.03.2021.  Counsel for petitioners submitted that respondents have abandoned the work of petitioners and various disputes have arisen between them and these disputes can be resolved in terms of Clause-38 of Development Agreement-cum-GPA dated 14.05.2012. Further submitted that petitioners have claim of Rs.2,32,09,336/- against the respondents. The respondents disputed the submission of the petitioners, however they didn’t dispute the existence of Development Agreementcum-GPA dated 14.05.2012.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 26.07.2021 ARB.P. 558 2021 RAJ SUJAN & ANR. Mr. D. Abhinav Rao Adv. Petitioners MS GEAR UP BUILDERS PVT LTD & ORS. Respondents Through Mr. Navneet Dugar Adv. HON BLE MR. JUSTICE SURESH KUMAR KAIT JUDGMENTThe hearing has been conducted through video conferencing. The present petition is preferred by the petitioners under Section 11 5) and 11 of the Arbitration & Conciliation Act 1996 seeking appointment of an Arbitrator for adjudicating the disputes between the terms of the Development Agreement cum GPA dated 14.05.2012. The petitioners herein are the absolute owners of Plot No. 21 admeasuring 1076.40 sq. yards equivalent to 900 sq. mtrs. situated at Huda Enclave Jubilee Hills Hyderabad. ARB.P. 558 2021 3. The respondent No. 1 M s. Gear Up Builders Limited is a company registered under the Companies Act and respondent No. 2 Mr. B.V. Rajesh is the Managing Director of the respondent No. 1 company. Petitioners entered into a registered Development Agreement cum GPA dated 14.05.2012 with the respondent No. 1 for development on the aforesaid property of petitioners and respondent No.2 had signed the same on behalf of respondent No. 1. According to terms of aforesaid Agreement respondents were required to complete the construction within 21 months or in any case within a grace period of 3 months i.e. by 23.10.2014. However respondents were unable to complete the project on time and sought for further extension of time and the same was extended by 5 months and in this way the construction was to be completed by 31.03.2015. But even after extension of time the construction was not completed. According to petitioners various communications were made to respondents through email and respondents kept on assuring petitioners that the construction will be completed at the earliest. But after causing substantial delay the respondents abandoned the work on site and refused to engage with the petitioners and in such circumstances petitioners were constrained to send legal notice dated 15.03.2021 through their counsel to ARB.P. 558 2021 respondent No. 1 seeking appointment of Sole Arbitrator. However respondent No. 1 through its counsel sent a reply dated 27.03.2021 declining appointment of the proposed Arbitrator mentioned in the aforesaid notice dated 15.03.2021. At the hearing learned counsel for petitioners submitted that respondents have abandoned the work of petitioners and various disputes have arisen between them and these disputes can be resolved in terms of Clause 38 of Development Agreement cum GPA dated 14.05.2012. Further submitted that petitioners have claim of Rs.2 32 09 336 against the respondents. The aforesaid submission of petitioners’ counsel is disputed by counsel for respondents however existence of Development Agreement cum GPA dated 14.05.2012 is not disputed. I have heard learned counsel for the parties and have gone through the The relevant Clause 38 of Development Agreement cum GPA dated material placed on record. 14.05.2012 reads as under: “In the event of any dispute arising between the parties herein touching these presents such dispute shall be ARB.P. 558 2021 referred to a Sole Arbitrator duly appointed by both the parties and his her award shall be final and binding on both the parties. The venue of arbitration shall be New Delhi and the Arbitration and Conciliation Act 1996 shall apply.” the provisions of In the aforesaid view of the matter the present petition is allowed. Accordingly Justice H.R.Malhotra (Mobile: 9311510400) is appointed Sole Arbitrator to adjudicate the dispute between the parties. 11. The fee of the learned Arbitrator shall be governed by the Fourth Schedule of the Arbitration and Conciliation Act 1996. 12. The learned Arbitrator shall ensure compliance of Section 12 of Arbitration and Conciliation Act 1996 before commencing the arbitration. 13. Needless to say all issues are left open for agitation by the parties and consideration by the learned Arbitrator. 14. A copy of this order be sent to learned Arbitrator for information. 15. With aforesaid directions the present petition is accordingly disposed SURESH KUMAR KAIT) of. JULY 26 2021 ARB.P. 558 2021

When termination is not found illegal or void ab initio, claim for back wages not tenable: Supreme Court

While hearing a Special leave petition on termination of employment, the Court held that when the termination is not illegal or void ab initio, the relief for wages from the date of termination is not, at any rate, tenable especially when the court gave a direction to reinstate by creating a supernumerary post. This judgment was passed in the State of Odisha & Ors. vs. Kamalini Khilar & Anr. [C.A.No. 24414/20121] by a Bench passed by Hon’ble Justice Uday Umesh Lalit, Hon’ble Justice Indira Banerjee, and Hon’ble Justice K.M. Joseph. The Appellant no.1, namely the State of Odisha passed a resolution dated prescribing the procedure for recruitment of Government teachers in primary schools. Appellant No. 3 had to determine the number of vacancies to be filled up through direct recruitment and the number of vacancies that were required to be reserved for each reserved category. It was the case of the Appellants that based on the same in 1996 it was communicated to Respondent No. 1 that her name was sponsored by the District Employment Exchange for the post of a primary school teacher. Thereafter she was called to submit her application, documents and attend the viva – voce examination. She placed 22nd rank in the SEBC-women category, while only 16 vacancies were available from the same category. In 1998 she received the appointment and the same was given since the person on 16th Rank could not join within time. Respondent no. 2 issued a complaint regarding the appointment order and the same was accepted by the Hon’ble Administrative tribunal and an order of appointment was issued in favor of them and respondent no.1 appointment was terminated. The High court quashed the direction of the Tribunal to reinstate Respondent No. 1 by creating a supernumerary post. It was the case of Respondent no. 1 that there were persons who secured lesser marks and were allowed to be retained in service. It was Respondent No. 1 who was harassed and victimized. The delay in litigation is solely attributed to the government. There is a delay of almost 7 years in filing replies by the government. The career of Respondent No. 1 was spoiled due to the illegal termination. Aggrieved by the above-impugned judgment the Appellants filed the present petition before the Supreme Court. it was the appellant’s contention that the HC while granting a limited relief erred in the issuance of the direction to appoint Respondent No. 1 in the vacancy. It was further contended by the Appellant that as things stand there is no provision for making an appointment as the method of appointment has been altered to absorption from trained junior teachers. The Supreme court observed that respondent 1 was the junior-most in her category. Further, the merit list of SEBC -females showed that Respondent no. 2 was in the 16th position. Snehalata Nayak was at No. 31 of SEBC (Women) list. But was shown in the category of P.H in the list of junior most of the different categories. Jagatanand Panigrahi shown in  P.H. has secured lesser marks than Snehalata Nayak. Irrespective of the above confusions it was clear that the person appointed in place of the Respondent No.2 was Respondent No. 1.  Ins such a case, the court observed that it cannot be possibly held that other candidates who may have secured lesser marks but were treated as falling into different categories should have been shown the door to comply with the order of the Tribunal. The court held that an order which was passed pursuant to a direction that is binding on the employer cannot possibly be described as illegal. While it held that the principle of natural justice cannot be ignored, it also held that based on the materials placed before the court, the High court did not find the termination of Respondent no.1 as illegal or void. The Court in fact set aside the direction of the Tribunal to reinstate by creating a supernumerary post. This is not challenged by Respondent No. 1. It directed only that the appointment of Respondent No. 1 be made in the vacancy. Thus the claim of respondent no. 1 is untenable.

STATE OF ODISHA & ORS. … APPELLANT(S) IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO._______OF 2021 Arising out of SLP______of 2021) Diary No. 24414 2020) KAMALINI KHILAR & ANR. … RESPONDENT(S) VERSUS JUDGMENT K.M. JOSEPH J. 1. There is a delay of 247 days in filing the SLP. Having considered the matter we are inclined to condone delay but on condition that a sum of Rs. 50 000 is paid as costs to the Respondent No. 1. Accordingly the application to condone delay is allowed subject to payment of Rs. 50 000 to the Respondent No. 1 by the Appellant depositing the same in the Registry within 4 weeks from today. Leave granted. 2. The Appellant No. 1 namely the State of Odisha passed a resolution dated 12.03.1996 prescribing the procedure for recruitment of Government teachers in primary schools. The Appellant No. 3 namely the District Inspector of Schools Bhadrak II Bhadrak had to determine the number of vacancies to be filled up through direct recruitment. Appellant No. 3 had to also determine the number of vacancies which were required to be reserved for each reserved category. It is the case of the Appellants that based on the same on 29.07.1996 by letter dated 29.07.1996 it was communicated to the Respondent No. 1 that her name was sponsored by the District Employment Exchange for the post of primary school teacher. She was called upon to submit her application along with her documents. The Respondent No. 1 was directed to attend the viva voce examination. A merit list was made. The Respondent No. 1 secured the 22nd position in the SEBCCategory. There were only 16 vacancies which were to be filled by SEBC Women) Category candidates. Respondent No. 1 was favoured with an order of appointment dated 04.04.1998. She was issued such appointment according to the Appellants on the basis that one of the successful candidates namely the Respondent No. 2 who secured the 16th position could not join within time. The Respondent No. 1 joined based on the joining letter dated 3. While so complaining that she was not served with the appointment order and that order was issued in name filed representation which based on an order in an application before the Tribunal was disposed of with certain directions by the 1st Appellant O.A No. 6500 was thereafter filed by Respondent No. 2 before the Hon’ble Orissa Administrative Tribunal. The Tribunal allowed the O.A. by order dated 21.09.2001. The operative part reads as follows: “For the reasons indicated above we allow the Original Application with the direction to the State Respondent in General and D.I of Schools O.P. No. 3) in particular to issue appointment order in favour of the applicant within one month from the date of receipt of the copy of this order and if the post has been filled up by the D.I of Schools is to carry out direction issued by Respondent No. 1 under Annexure 6 in dispensing with the service of the candidate who had been appointed in place of Minati Pradhan the applicant.” 4. This led to order dated 16.04.2002 which was an order of appointment of Respondent No. 2 by the Appellant No. 3 and another order of the same date by which the services of the Respondent No. 1 came to be terminated. This led to the present round of litigation namely O.A. No. 917of 2002 filed by the Respondent No. 1 before the tribunal. The 5 Tribunal after exchange of pleadings allowed the application filed by the Respondent No. 1. 5. We may refer to the following part of the order: “In so far as it is obvious that Smt. Snehalata Nayak who has secured less marks and did not figure in the physically handicapped list has been given appointment under the “physically handicapped” quota and has been allowed to continue along with several others including S.E.B.C and General candidates who have secured less mark than the applicant list her termination is illegal. Hence Annexure 6 i.e. her termination order vide office No. 981 dtd. 14.4.2002 is quashed. The applicant be reinstated in service immediately with all attendant service benefits by creating another supernumerary post if necessary as termination of her service was not as per the prescribed procedure or in accordance with the law of the land.” 6. It is this order which led to the passing of the impugned order by the High Court. By the impugned judgment the High Court quashed the direction of the Tribunal to reinstate the Respondent No. 1 by creating a supernumerary post. Thereafter it was however ordered as follows: “However since the vacancy is available the petitioners will give appointment to opposite party No. 1 Smt. Kamalini Khilar against one of such vacancies available in Bhadrak district within a period of four weeks hence the writ petition is allowed the aforesaid extent.” 7. It is feeling aggrieved by the judgment that the present appeal has been filed. We heard Learned Counsel for the Appellants and Respondents No. 1 and 2 as well. Submission of Appellants 8. The Learned Counsel for the Appellants would complain that the High Court while granting limited relief of quashing the direction to create a supernumerary post erred in the issuance of the direction to appoint the Respondent No. 1 in the vacancy. This is after having interfered with the order of the Tribunal as noted. The Respondent No. 1 came to be appointed only on the basis that Respondent No. 2 who admittedly had secured higher rank than the Respondent No. 1 had not reported for joining. It was only in compliance with the order of the Tribunal that the services of Respondent No. 1 had to be terminated. It is further contended that as things stand there is no provision for making any appointment as the method of appointment has been altered to absorption from trained junior teachers. 9. Reliance was placed on the terms of the Resolution dated 12th March 1996. It is contended that the selection was made based on the same. The Employment Exchange sponsored eligible candidates separately for general vacancies and for each reserved categories. It is contended that the sports person or physically handicapped person from any Category could apply as much. Reference is made to clause 8 of the Resolution. It is contended that the maximum age as on the 1st of January of the year of requisition was fixed as 32 years. Relaxation was however given by 5 years for women candidates interalia. Separate list was to be prepared for each of the reserved categories. Separate select list of the candidates had to be prepared for the vacancies notified in respect of that category of candidates under clause 16 of the Resolution. Clause 17a provided that the District Inspector was to make appointment against the sanctioned posts strictly in the order in which the names occurred in the respective select lists. 16 vacancies were notified for the category of S.E.B.C. in the Category. She secured the 22nd rank and the Respondent No.2 was at S.no. There is no challenge at any point to the resolution dated 12.03.1996 or the selection procedure. The last person to get an appointment from the list of S.E.B.C Category was Respondent No.1. In order to comply with the directions of the Tribunal in O.A. No. 6500 the services of the Respondent No. 1 were dispensed with. It was only the Respondent No. 1 who got the appointment against one of the vacancies notified for S.E.B.C Category because the Respondent No.2 was not served the appointment order. If the Respondent No.2 had been served the appointment letter then the Respondent no. 1 would not have been given an appointment based on her position in her merit list for S.E.B.C Category. The Respondent No. 1 never objected to the method of preparing the select lists and is therefore not entitled to raise objection now to the preparation of the separate list. Reference is made to judgment of this Court in Union of India and Ors. vs. Dalbir Singh and Ors1. The Respondent No.1 was always aware of the separate list for each Category. She got the benefit of relaxation of age by applying as a S.E.B.C candidate. Her non inclusion in any other list or the selection procedure interalia was never challenged by her. It is pointed out that in the written submission of the Respondent No. 1 a misleading statement is made that the vacancy occurred prior to 03.06.1996 17 SCC 251 which is why the government proceeded to fill up the vacancy by calling upon the Respondent No. 1. It is pointed out that the letter written by the 3rd Appellant to the 2nd Appellant was about complying with the order of the Tribunal in the application filed by the Respondent No. 2. The 3rd Appellant refers to the vacancy having being filled by his predecessor. All the vacancies covered by the selection process in question occurred prior to 30.06.1996. It is also further contended that the none of the decisions relied upon by the Respondent No.1 are relevant having regard to the circumstances surrounding the appointment of the Respondent No.1 and the specific directions issued by the Tribunal. The Case Of Respondent No.1. There is a violation of principles of natural justice. The termination of her services is wholly illegal arbitrary and capricious. The Appellants delayed the matter. The Respondent No.1 was a permanent employee having impeccable four years of continuous service record. The finding that her services was terminated in view of the order dated 21.09.2001 is erroneous and not sustainable having regard to the following aspects. The Respondent No. 1 was not a party in the O.A. filed by the Respondent No. 2. Secondly the Tribunal had not directed removal of the Respondent No. 1 but only directed the removal of the person who had taken the place of the Respondent No. 2. It is pointed out that at Page no. 64 of the SLP Paper Book which is the letter dt. 22.01.2001 written by the 3rd Appellant and also referring to the list of junior most candidates of different categories appointed as primary school teachers at S.No. 3 the candidate is a general category male who had secured 109.10 marks. S.No. 5 is candidate from SEBCwho secured 110.75 marks. At S.No. 7 Jagatanand Panigrahi is specifically earmarked as Physical Handicapped Category but S.No. 8 named as Snehalata Nayak who is specifically earmarked at S.no. 31 of SEBC Category and secured only 110.36 marks but is given appointment as PH illegally whereas she belongs to SEBC Category. The Respondent No. 1 belongs to SEBC Category had secured 112.75 marks which was more than what the above persons obtained. Therefore the Respondent No. 1 was not the person whose services was to be terminated in terms of the order of the tribunal in the earlier proceedings it is contended. It is contended that the Respondent No. 1 was not party to the earlier proceeding. The order adversely affecting the Respondent No. 1 should not have been passed and the government should have challenged the order passed in the earlier proceeding. There is the bar under Section 115 of the Indian Evidence Act 1872. In other words there is estoppel. Reliance is placed on the judgements of this court in Delhi Transport Corporation vs. D.T.C. Mazdoor Congress and Ors.2 2 AIR 1991 SC 101 Surendra Kumar Verma and Ors. vs. Central Government Industrial Tribunal Cum Labour Court New Delhi and Ors.3 and Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalayaand Ors.4 . Reliance is also sought to be placed on the judgements of this Court in Hindustan Tin Works Pvt. Ltd. vs. The Employees of Hindustan Tin Works Pvt. Ltd. and Ors.5 and Basudeo Tiwary vs. Sido Kanhu University and Ors.6 There were persons who secured lesser marks than the Respondent No.1 who are allowed to be retained in service and it was the Respondent No. 1 who was harassed and victimised. The delay in litigation is solely attributed to the government. There is a delay of almost 7 years in filing reply by the government. After the passing of the order by the Tribunal to reinstate the Respondent No. 1 with all service benefit it woke up only when contempt proceeding was initiated and the order was 34 SCC 443 410 SCC 324 52 SCC 80 6 AIR 1998 SC 3261 challenged only after a lapse of two years. The career of the Respondent No. 1 was spoiled due to the illegal termination. She could not properly bring up her children and spent the entire period of litigation in distress and financial hardship. Had she been continued she would have become head mistress now. She being a lady and married woman residing in rural area she could not get any employment elsewhere due to want of the same in the locality and affidavit is also filed indicating that she could not get suitable employment FINDINGS The Order of the Tribunal passed in O.A. No. 650 of 2000 was binding on the department. We cannot at this stage sit in judgment over the correctness of the order passed in the said O.A. Apparently though the Respondent No. 2 having obtained higher rank than the Respondent No. 1 in the Category of S.E.B.Chad been favoured with an appointment letter it was not delivered to her as it was addressed wrongly. The Respondent No. 2 therefore did not join as apparently she did not receive the appointment order. At least these are the findings of the Tribunal. In fact the matter had engaged the attention of the 1st Appellant and it took a decision dated 24.02.2000 therein. The decision of the Government as extracted in the order of the Tribunal reads as follows: “I am desired to invite a reference to the Order Memo No. 106 OAT dated 07.01.2000 of the Hon’ble OAT Bhubaneswar on the subject noted above. It had been reported by the D.I. of Schools Bhadrak II in his letter No. 388 dated 31.01.2000 with copy to you in Memo No. 389 dated 31.01.2000 that though one Minati Pradhan was selected and is to be appointed but the appointment order was dispatched in the name of Minakhi Pradhan. Hence before taking steps to comply with the order of the Tribunal to appoint Minati Pradhan please check the fact in the Office of D.I. of Schools Bhadrak II to ascertain whether any other person named Minakhi Pradhan has been appointed on the basis of incorrectly addressed letter. If yes the applicant in the writ petition will join in her place if not the junior most candidate will be removed to let her join unless if Government decides to permit the applicant to join in a post subsequently fallen vacant.” The Tribunal directed as already noted that if the post had been filled up the District Inspector of schools was to carry out the direction of the Respondent No. 1 which we have extracted that is dispense with the service of the candidate who had been appointed in place of Respondent No. 2. Interestingly we may notice that the Government had directed that the junior most candidate will be removed in order to enable the Respondent No. 2 to join. The direction of the Tribunal has become While it may be true the Respondent No. 2 was not a party to the O.A. in law nothing prevented her from challenging the said order. It may not be open to her to contend that as she was not a party the said order cannot be and should not be implemented in letter and spirit. It is an order passed by a Tribunal which had jurisdiction in the matter. The finding that the Respondent No. 2 could not join because of the letter of appointment being issued in the wrong name cannot be open to challenge. The Tribunal was therefore setting right an illegality and injustice caused to Respondent No. 2. There is no dispute that there were only 16 vacancies to be filled up of the category of S.E.B.C. for which Category 16 vacancies were earmarked. The merit list of SEBC female)shows that the Respondent No. 2 with 117.46 marks was at the 16th position. Snehalata Nayak is no doubt at Serial No. 31 of SEBClist. But she is shown in the category of P.H in the list of junior most of different categories in letter dt. 22.11.2001 sent by the Appellant No. 3. The person at Serial No.7 Jagatanand Panigrahi is shown P.H. has secured lesser marks than Snehalata Nayak. It is not clear how in the letter dt. 22.11.2001 persons at Serial No. 7 and 8 are both mentioned under the category as P.H. and as being the junior most candidates. No doubt under the name of Snehalata Nayak it is shown S.no. 31 of SEBC Category. Does it mean that Snehalata was appointed from SEBC but under the category of physically handicapped The office order terminating the service of the Respondent No.1 refers to the letter no. 7119 dated 16.03.2002 sent by the 2nd Appellant Director. It is not produced. However what is clear is that the person appointed in place of the Respondent No.2 was the Respondent No. 1. In such circumstances we cannot possibly hold that other candidates who may have secured lesser marks but who it must be noted were treated as falling in different categories for which separate list were prepared should have been shown the door to comply with the order of the Tribunal. The Respondent No. 1 was considered under the SEBC 23 Women) as being a woman she could aspire with the age relaxation. We may incidentally notice that the Respondent No. 1 has only a few months for attaining the age of superannuation. It may be true that she has not secured any alternative employment as stated in her affidavit and also projected in the written submissions. She has also not been able to work based on the direction of the Tribunal or of the High Court. The decisions relied upon by the Respondent No. 1 may not assist her. As far as the decision in the Delhi Transport Corporation is concerned the Court was dealing with constitutionality of the power under the regulation to dispense with the service of a permanent employee without holding any enquiry. This Court took the view that dispensing with the service of the permanent and confirmed employee by merely issuing a notice without assigning reasons could not be countenanced. The decision clearly cannot apply in a situation where the Appellants being under the legal obligation to implement the order of the Tribunal dispensed with the services of the employee in accordance with the directions. The decisions in Hindustan Tin Works Pvt. Ltd. supra) and Surendra Kumar Vermarelate to Industrial Law and the effect of illegal termination of a workman. An order which is passed pursuant to a direction which is binding on the employer cannot possibly be described as illegal. Therefore the said case law cannot advance the case of the Respondent. In Basudeo Tiwarythe services of the Appellant had been terminated. The Appellant was appointed as a lecturer. The college was taken over by the University. The services was terminated on the basis that the appointment was not made validly. One of the contentions taken was there was violation of principles of natural justice. Though reliance was undoubtedly placed on Section 35of the Bihar University Act 1951 and the same purported to provide that any appointment interalia contrary to the act statutes rules or regulation or in any regular or unauthorised manner shall be terminated at any time without any notice we do notice para 12 of the said judgment: “The said provision provides that an appointment could be terminated at any time without notice if the same had been made contrary to the provisions of the Act statutes rules or regulations or in any irregular or unauthorised manner. The condition precedent for exercise of this power is that an appointment had been made contrary to Act Rules Statutes and Regulations or otherwise. In order to arrive at a conclusion that an appointment is contrary to the provisions of the Act statutes rules or regulations etc. a finding has to be recorded and unless such a finding is recorded the termination cannot be made but to arrive at such a conclusion necessarily an enquiry will have to be made as to whether such appointment was contrary to the provisions of the Act etc. If in a given case such exercise is absent the condition precedent stands unfulfilled. To arrive at such a finding necessarily enquiry will have to be held and in holding such an enquiry the person whose appointment is under enquiry will have to be issued to him. If notice is not given to him then it is like playing Hamlet without the Prince of Denmark that is if the employee concerned whose rights are affected is not given notice of such a proceeding and a conclusion is drawn in his absence such a conclusion would not be just fair or reasonable as noticed by this Court in D.T.C. Mazdoor Sabha s case. In such an event we have to hold that in the provision there is an implied requirement of hearing for the purpose of arriving at a conclusion that an appointment had been made contrary to the Act statute rule or regulation eta and it is only on such a conclusion being drawn the services of the person could be terminated without further notice. That is how Section 35(3) in this case will have to be read.” Finding that there was no notice issued to the Appellant therein and further noticing that the Appellant had died during the pendency of the proceedings it was to be deemed that the Appellant had died in harness. He was allowed the benefit of payment of arrears of salary from the date of termination of the service till the date of his death. We may notice the decision would appear to the distinguishable in terms of the facts in this case. It is no doubt true that the Respondent No. 1 was offered appointment and was appointed. However the Appellants suffered an order by a competent Tribunal which it was duty bound to implement. We would be remiss if we were to discard the principles of natural justice as inapplicable. No doubt there was no need to hold any enquiry as the termination was not on disciplinary grounds. No stigma is attached to Respondent No. 1. But a notice given to the Respondent No. 1 as to why in terms of the order of the Tribunal the Respondent No. 1 should be treated as the person whose services was to be dispensed with should have been issued. However we would think that on the materials placed before the Court with 16 vacancies alone earmarked for S.E.B.Cand the Respondent No. 2 being the 16th and the last of the candidates entitled in the said Category not joining in the circumstances resulting in the Respondent No. 1 being appointed and the order of the Tribunal being binding on the Appellants we would think that in the present case the failure to afford an opportunity to the Respondent No.1 to show cause as to why her services should not be terminated cannot be held to be fatal. We also cannot loose sight of the fact nearly two decades have gone by and only for the reason that the Respondent was not offered an opportunity of being heard in the facts of this case we cannot support the order of the High Court in directing the appointment of the Respondent No. 1. It is not as if the High Court has found that the termination of the service of the Respondent No. 1 was ab initio void or illegal as such. The Court in fact set aside the direction of the Tribunal to reinstate by creating a supernumerary post. This is not challenged by Respondent No. 1. It directed only that the appointment of the Respondent No. 1 be made in the vacancy. Therefore the claim of Respondent No. 1 for back wages from the date of termination is at any rate clearly untenable. Deepali Gundu Surwase the matter arose under the Maharashtra Employees of Private Schools Regulation Act 1977. This Court undoubtedly laid down that in the reinstatement with the continuity of service and back wages is the normal rule. It was subject to the qualification that the Court may interalia take into consideration the length of service and the nature of misconduct if any proved the financial condition of the employer and similar other factors. For the reasons which we have indicated in the facts of this case Respondent No. 1 cannot be permitted to draw any benefit from the said The High Court rightly set aside the direction for creation of the supernumerary post. We find that there is no basis for the High Court to have thereafter directed the appointment of the Respondent No. 1 in any vacancy available. The upshot of the above discussion is that the termination of the service of the Respondent No. 1 was unavoidable in the light of the binding order of the Tribunal in O.A. No. 650 of 2000. Consequently the order of the High Court to the extent impugned is to be set aside. Resultantly we allow the appeal and the order of the High Court impugned is set aside and the order passed in the O.A. no. 9102 filed by the Respondent No. 1 will stand set aside. No order as to costs in the appeal. We make it clear that if the cost of Rs. 50 000 ordered as 31 condition to condone delay in filing the SLP is not paid as aforesaid the impugned judgment will stand the application for condoning delay will stand dismissed and the leave granted will stand revoked and this judgment will stand recalled. If the cost is deposited the same can be withdrawn by the Respondent No. 1. ......................J. J. New Delhi April 28 2021.

The learned trial court cannot conduct a mini trial to find out as to whether the accused can be convicted for a particular offence or not.: High Court of Jammu and Kashmir and Ladakh

The charge can be framed against the accused even when there is a strong suspicion about the commission of offence by the accused and at the same time, the learned trial court is not expected to merely act as a post office and frame the charge just because challan for commission of a particular offence has been filed against the accused as held by the High Court of Jammu and Kashmir and Ladakh through the learned bench led by Justice in the case of The brief facts of the case are that the present petition has been filed by the petitioner for quashing the order dated 14.12.2020 passed by the learned Special Judge Anti-Corruption, Jammu) in a challan, titled “State vs Syed Muried Hussain Shah”, by virtue of which the petitioner has been ordered to be charged for commission of offences under sections 5 (1) (d), read with section 5 (2) of the Prevention of Corruption Act, 1988 and section 4-A of the Prevention of Corruption Amendment Act, 2014, as also order No. 21-JK-GAD(vig) of 2020 dated 16.03.2018, by virtue of which sanction has been granted by the Government for prosecution of the petitioner. The present petition has been filed on the following grounds; That the order of framing of charge is bad in law as in the instant case, neither any official act required to be done by the petitioner was pending in petitioner’s office, nor there is any whisper of demand of 2 CRM(M) No. 131/2021 bribe in the entire story followed by the alleged acceptance of bribe money. Therefore, the orders impugned are not sustainable in the eyes of law. That the petitioner had become functus officio on 06.11.2018 after recommending the case for renewal along with the recommendation of penal interest to the Excise Commissioner therefore, the framing of charge is bad in law. That as per the Excise Policy, Rules and Norms, no formal permission for opening of the liquor shop was required to be given by the petitioner in view of the new Excise Policy and further as per Clause 11, the renewal of the license was automatic on depositing of the license fee and other dues, those were deposited on 18.12.2018 itself. That the petitioner had already processed the renewal of the license on 06.11.2018 and the story regarding demand and acceptance of rupees two lacs as illegal gratification from the complainant for processing of the renewal of license gets falsified. That the charged framed is contradictory to the order impugned. That the order granting sanction for prosecution of the petitioner has been passed without application of mind. After the perusal of the facts and arguments by the learned counsels, the Hon’ble Court held, “The contention of the petitioner that he became functus officio as he had already recommended the renewal of license vide order dated 06.11.2018 so he had no more official duty to perform, is belied by the fact that the Technical PA to the Excise Commissioner has addressed a letter dated 18.12.2018 to the petitioner to allow the licensee to resume his business/establishment after deposition of license fee and also for submission of authenticated dissolution deed along with copy of the receipt of prescribed fee to that office for further proceedings, so it cannot be said at this stage that no role was left with the petitioner to perform after he recommended the renewal of license on 06.11.2018. The last contention is with regard to the validity of the sanction. Needless to say that the validity of the sanction can be examined by the trial court during the course of trial in view of the law laid down by the Apex Court in Central Bureau of Investigation v Ashok Kumar Aggarwal, (2014) 14 SCC 295. Viewed thus, the present petition is devoid of merit, as such, the same is dismissed.”

HIGH COURT OF JAMMU AND KASHMIR AND LADAKH Reserved on 28.10.2021 Pronounced on 12.11.2021 CRM(M) No. 131 2021(O&M) Through : Mr. G. S. Thakur Advocate Syed Muried Hussain Shah Union Territory of J&K and another Through : Mr. Raman Sharma AAG Coram: HON’BLE MR. JUSTICERAJNESH OSWAL JUDGE The present petition has been filed by the petitioner for quashing the order dated 14.12.2020 passed by the learned Special Judge Anti Corruption Jammu in a challan titled “State vs Syed Muried Hussain Shah” by virtue of which the petitioner has been ordered to be charged for commission of offences under sections 5 (d) read with section 5 of the Prevention of Corruption Act 1988 and section 4 A of the Prevention of Corruption Amendment Act 2014 as also order No. 21 JK GAD(vig) of 2020 dated 16.03.2018 by virtue of which sanction has been granted by the Government for prosecution of the petitioner. The present petition has been filed on the following grounds: a) That the order of framing of charge is bad in law as in the instant case neither any official act required to be done by the petitioner was pending in petitioner’s office nor there is any whisper of demand of 2 CRM(M) No. 131 2021 bribe in the entire story followed by the alleged acceptance of bribe money. Therefore the orders impugned are not sustainable in the eyes of law. b) That the petitioner had become functus officio on 06.11.2018 after recommending the case for renewal along with the recommendation of penal interest to the Excise Commissioner therefore the framing of charge is bad in law. c) That as per the Excise Policy Rules and Norms no formal permission for opening of the liquor shop was required to be given by the petitioner in view of the new Excise Policy and further as per Clause 11 the renewal of the license was automatic on depositing of the license fee and other dues those were deposited on 18.12.2018 d) That the petitioner had already processed the renewal of the license on 06.11.2018 and the story regarding demand and acceptance of rupees two lacs as illegal gratification from the complainant for processing of the renewal of license gets falsified. e) That the charged framed is contradictory to the order impugned. f) That the order granting sanction for prosecution of the petitioner has been passed without application of mind. Response stands filed by the respondents in which factual facts of the case has been narrated. Mr. G. S. Thakur learned counsel for the petitioner has vehemently submitted that the petitioner stood relieved on 20.12.2018 when the order of transfer of the petitioner was issued and further that the license stood already renewed three days prior to the alleged trap. 3 CRM(M) No. 131 2021 Per contra Mr. Raman Sharma learned counsel for the respondents vehemently submitted that the independent witness PW Sukhdev Singh has categorically deposed with regard to the demand and acceptance of the bribe money by the petitioner and further the bribe money was recovered from the locker almirah of the petitioner. He further argued that the defence of the petitioner cannot be considered at this stage and the petitioner can prove defence during the course of trial. Heard and perused the scanned record. The facts as they emanate from the charge sheet are that the FIR bearing No. 42 2018 was registered on 21.12.2018 at 1230 hours when the respondents with a written complaint application wherein it was stated that the renewal of the license of Dalip Singh Wine Shop at Narwal was pending since 01.05.2018 in the Excise Department and the shop was lying closed due to non renewal. He further submitted that he had been running from pillar to post for renewal of the license for the last eight months. The petitioner was victimizing harassing and demanding for a bribe of rupees two lacs for clearing the file. Since his mother was ailing and unable to move so he was following up the case for renewal of the license. He was paying a sum of Rs. 2 lacs to the petitioner on behalf of his mother under compulsion to avoid any further loses. On the receipt of said complaint FIR was registered and a trap was laid by Rawail Singh Choudhary Dy. S.P along with other police officers and the independent witnesses namely Bihari Lal Raina AE PHE Rural Division Jammu and Sukhdev Singh AE PHE Rural Division Jammu. After conducting the pre trap proceedings the team of the respondents 4 CRM(M) No. 131 2021 along with complainant and independent witnesses proceeded towards spot i.e. Panama Chowk and reached there at 1430 hours. On entering the building where the office of the petitioner was located on third floor the team members took their respective positions on third floor as per instructions conveyed to them during pre trap proceedings. The accused petitioner was not present in his office and the complainant conveyed him regarding his arrival in his office on cell phone No. 9469212388 who advised the complainant to wait for him. At about 1530 hours the petitioner Deputy Excise CommissionerJammu reached his office and asked the complainant who was standing at the entry of his office to come along with him inside his chamber. Once the complainant entered his office room the petitioner subsequently took him inside his retiring room attached with his office chamber and shadow witness remained just outside the retiring room. After some time Sukhdev Singh shadow witness who listened their conversation at once came out and flashed pre fixed signal to other team members. The trap team swung into motion immediately and entered the office chamber of the petitioner wherein shadow witness Sukhdev Singh and complainant pointed out towards the petitioner who by that time had come out from retiring room and was sitting on the chair. Both of them revealed to the trap team that he was the person who demanded and accepted the bribe money from the complainant and kept the bribe money in the almirah lying in his retiring room. Thereafter the accused was taken into custody and the post trap proceedings were conducted on spot wherein a solution of Sodium Carbonate was prepared in a clean glass tumbler by Sgct. Sushil Kumar whereas the shadow witness Sukhdev Singh was asked to rinse his left 5 CRM(M) No. 131 2021 hand fingers in the said colourless solution. On doing so the colourless solution of Sodium Carbonate remained unchanged. Thereafter the petitioner was instructed to rinse his left hand fingers in the said solution on his doing so the colour of the solution turned into pink which was put in a clean glass bottle and properly sealed and marked. Again a fresh solution of Sodium Carbonate was prepared and Sukhdev Singh was again asked to rinse his right hand fingers in the solution which remained unchanged and then petitioner was again asked to rinse his right hand fingers in the said solution on his doing so the said colorless solution turned into pink due to the reasons that had handled the bribe amount before the same was put in his almirah which was in his constructive possession. The said solution was preserved in a small glass bottle and was sealed and marked. The bribe money was recovered from the steel almirah placed in the retiring room of the petitioner. license of the complainant was lying with his dealing Assistant. The said file consisting of 525 leaves along with eight note sheets was seized on spot from Raj Kumar Senior Assistant posted in the office of the Deputy Excise Commissioner Jammu. The petitioner was arrested and after conclusion of the investigation the charge sheet for commission of offences under sections 5(1)read with section 5(2) of the Prevention of Corruption Act and section 4 A of the Prevention of Corruption Amendment Act 2014 was filed against the petitioner. It is further stated in the charge sheet that the file for renewal of the The learned trial court after hearing arguments on charge discharge charged the petitioner for commission of offences aforesaid vide order 6 CRM(M) No. 131 2021 It is evident from the statement of the complainant that the petitioner the following words for making demands “DO MERA KHARCHA”. The statement of the complainant has been corroborated with the shadow witness namely PW Sukhdev Singh who also has deposed on the similar lines in his statement under section 161 Cr.P.C. From the aforesaid facts it is evident that the demand was made amount was accepted and same was recovered from the almirah of the petitioner. The presence of the petitioner on spot has not been disputed by the petitioner rather it has been argued by Mr. Thakur that the petitioner had gone to the office on 21.12.2018 in connection with his fair well party. Further the factum of the hands wash of the petitioner turning into pink has not been disputed by the petitioner so at this stage it can be safely inferred that the petitioner received the bribe amount from the complainant that was dusted with phenolphthalein powder. The charge can be framed against the accused even when there is a strong suspicion about the commission of offence by the accused and at the same time the learned trial court is not expected to merely act as a post office and frame the charge just because challan for commission of a particular offence has been filed against the accused. The learned trial court can sift the evidence brought on record by the prosecution so as to find out whether the un rebutted evidence placed on record fulfils the ingredients of the offences or not. But at the same time the learned trial court cannot conduct a mini trial to find out as to whether the accused can be convicted for a particular offence or not. 7 CRM(M) No. 131 2021 The Apex Court in Sajjan Kumar v. CBI reported in9 SCC 368 after considering of its various pronouncements has culled out the following principles of law: “Exercise of jurisdiction under Sections 227 and 228 CrPC 21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code the following principles emerge: i) The Judge while considering the question of framing the charges under Section 227 CrPC has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case. ii) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial. iii) The court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case the total effect of the evidence and the documents produced before the court any basic infirmities etc. However at this stage there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. iv) If on the basis of the material on record the court could form an opinion that the accused might have committed offence it can frame the charge though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the v) At the time of framing of the charges the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. vi) At the stage of Sections 227 and 228 the court is required to evaluate the material and documents on record with a view to find out if the facts emerging there from taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. vii) If two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion the trial Judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal.” 8 CRM(M) No. 131 2021 In State of Karnataka v. M. R. Hiremath 7 SCC 515 the Apex Court has held as under: “25. The High Court ought to have been cognizant of the fact that the trial court was dealing with an application for discharge under the provisions of Section 239 CrPC. The parameters which govern the exercise of this jurisdiction have found expression in several decisions of this Court. It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material taken on its face value disclose the existence of the ingredients necessary to constitute the offence. In State of T.N. v. N. Suresh Rajan11 SCC 709 : 3 SCC 529 :2 SCC721] adverting to the earlier decisions on the subject this Court held:“29. … At this stage probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value it can frame the charge though for conviction the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage.” The contention of the petitioner that he became functus officio as he had already recommended the renewal of license vide order dated 06.11.2018 so he had no more official duty to perform is belied by the fact that the Technical PA to the Excise Commissioner has addressed a letter dated 18.12.2018 to the petitioner to allow the licensee to resume his business establishment after deposition of license fee and also for submission of authenticated dissolution deed along with copy of the receipt of prescribed fee to that office for further proceedings so it cannot be said at this stage that no role was left with the petitioner to perform after he recommended the renewal of license on 06.11.2018. Further the letter dated 19.12.2018 addressed by Jagjeet Kour to the Excise Commissioner reveals that the same has been submitted to the 9 CRM(M) No. 131 2021 Excise Commissioner through proper channel along with the enclosures mentioned in the letter including the dissolution of partnership as demanded by the Excise Commissioner vide letter dated 18.12.2018. Further from the statement of PW Raj Kumar it is evident that the letter dated 18.12.2018 addressed to the petitioner was forwarded to the petitioner who marked the letter in question along with other dak letters on 20.12.2018 and thereafter the dak pad was received by the Vijay Kumar in the afternoon. So till 20.12.2018 the petitioner was dealing with the issue of renewal of the license of the mother of the complainant. 21.12.2018 is also a disputed question of fact and as there is nothing on record to demonstrate as to when the order dated 20.12.2018 regarding the transfer of the petitioner was received in his office. Thus in absence of any such record this Court does not deem it proper to consider the effect of the transfer of the petitioner vis a vis allegations against the petitioner. The same are the disputed question of facts and petitioner has every right to prove his defence during the course of trial at an appropriate stage. While considering the issue of charge discharge the defence that amounts to disputed question of fact cannot be considered as such the contention of the petitioner has no force. Further the contention of Mr. Thakur that the petitioner stood relieved on The last contention is with regard to the validity of the sanction. Needless to say that the validity of the sanction can be examined by the trial court during the course of trial in view of the law laid down by the Apex Court in Central Bureau of Investigation v Ashok Kumar Aggarwal 14 SCC 295 in which it has been held as under: 10 CRM(M) No. 131 2021 58. The most relevant issue involved herein is as at what stage the validity of sanction order can be raised. The issue is no more res integra. In Dinesh Kumar v. Chairman Airport Authority of India this Court dealt with the issue and placing reliance upon the judgment in Parkash Singh Badal & Anr. v. State of Punjab came to the conclusion as under: “13. In our view having regard to the facts of the present case now since cognizance has already been taken against the appellant by the trial Judge the High Court cannot be said to have erred in leaving the question of validity of sanction open for consideration by the trial court and giving liberty to the appellant to raise the issue concerning validity of sanction order in the course of trial. Such course is in accord with the decision of this Court in Parkash Singh Badal…” emphasis supplied)”. Viewed thus the present petition is devoid of merit as such the same is dismissed. Judge JAMMU 12 .11.2021 Whether the order is speaking: Whether the order is reportable:

Bail to be granted only if there are reasonable grounds to believe that the applicant is not guilty of such an offence: High Court of Himachal Pradesh

Bail application can be rejected by the court under section 37 of the NDPS act if there are no reasonable grounds to believe that the applicant is not guilty of the offence alleged against him/her. This was held by Ms. Justice Jyotsna Rewal Dua in the case of Abhishant Minhas Vs. State of Himachal Pradesh [Cr.MP(M) No.1198 of 2021] On the 8th of July in the Hon’ble High Court of Himachal Pradesh, Shimla. The brief facts of the case are, on 23.6.2020, the police were patrolling a certain area where they noticed a car parked with four occupants. The police suspected this solitary parked vehicle and approached the vehicle and asked the reasons for parking the vehicle there. The answers received by the police raised suspicion and thus a search was conducted in accordance with law. During this search, heroin and ridley capsules were recovered from the car. The four persons identified themselves as, Sidhant Thakur (the driver), Samridhi Bedi occupying the front seat adjoining to the driver seat and Rajat & Abhishant Minhas (petitioner herein) occupying the back seat. Entire procedure contemplated under Code of Criminal Procedure as well as under the Narcotic Drugs and Psychotropic Substances, Act was followed leading to registration of FIR in question. All the four accused persons were arrested on 24.06.2020. The present petition is filed for the purpose of seeking bail through the instant bail application. The counsel for the petitioner submits that, the petitioner has been falsely implicated with the alleged offence. However, the Counsel for the respondent submitted that the psychotropic substance recovered from the vehicle was found to be in joint possession of all the four accused persons asper record. It was also submitted that the petitioner had 2 criminal antecedents relating to the Indian Penal Code and the POCSO act. It was also submitted that during the investigation, the petitioner revealed he was a Drug addict. The court to analyze whether the bail application must be accepted had to first determine whether the amount of substance recovered was ‘commercial quantity’. In the instant case, total weight of powder of recovered capsule was 600.600 grams. This weight exceeds 250 grams notified as commercial quantity of Tramadol under the NDPS Act. Therefore, rigors of Section 37 of the NDPS Act get attracted. The learned judge relied on the judgement in State of Kerala Etc. Versus Rajesh Etc. AIR 2020 SC 721 wherein, the apex court held that, “To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely, (i) there are reasonable grounds for believing that the accused is not guilty of such offence; and (ii) that he is not likely to commit any offence while on bail are satisfied.”

Hig h C o urt of H.P on 09 07 CIS IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.MP(M) No.11921 Decided on: 8th July 2021 Abhishant Minhas …..Petitioner Versus State of Himachal Pradesh .....Respondent Coram Ms. Justice Jyotsna Rewal Dua Whether approved for reporting 1 For the Petitioner: Mr. Sanjay Jaswal Advocate. For the Respondent: Mr. Anil Jaswal Additional Advocate General. Jyotsna Rewal Dua JudgePetitioner is co accused along with four others in FIR No. 81 2020 dated 23.6.2020 registered at Police Station Damtal District Kangra under Sections 21 22 and 29 of the Narcotic Drugs & Psychotropic Substance Act 1985Samridhi Bedi the girl occupying the front seat adjoining to the driver seat and Rajat & Abhishant Minhasoccupying the back seat. Further search of the vehicle led to recovery of 1102 number of Ridley capsules underneath the seat adjoining to the driver seat i.e. the seat occupied by Samridhi Bedi. The Drug Detection Kit confirmed the recovered contraband as Heroin. Weight of this contraband so recovered from the middle of front seat of the vehicle measured 8.38 grams on the electronic scale. Entire procedure contemplated under Code of Criminal Procedure as well as under the Narcotic Drugs and Psychotropic Substances Act was followed leading to registration of FIR in question. All the four accused persons were arrested on 24.06.2020. 3(ii). According to the status report during investigation the accused persons including the petitioner Hig h C o urt of H.P on 09 07 CIS 4 disclosed that they were drug addicts and to meet the expenses in purchasing the drugs they also used to sell the same. The Heroin and capsules recovered from the car were stated to have been purchased by the accused persons from one Surinder Pal @ Chandi @ Veera s o Gulzari Lal r o village Chhanni Tehsil Indora District Kangra. Co accused Samridhi Bedi also disclosed during investigation that she used to purchase the capsules and Heroin from said Surinder Pal. Sidhant Thakur @ Kannu also disclosed during investigation about purchasing Heroin and capsules from Surinder Pal. The statement was allegedly corroborated by the other accused persons as well. 3(iii). Call Detail Reports of the mobile No. 88604 30908 belonging to Samridhi Bedi were obtained by the investigating agency. As per these reports on 23.6.2020 itself i.e. the day of the incident Samridhi Bedi had spoken to Surinder Pal on his mobile No. 84274 97517 twelve times. According to the status report all the accused persons during investigation disclosed that they are habitual drug addicts. Samridhi Bedi and Sidhant Thakur in past also have purchased Heroin and capsules from Surinder Pal. Hig h C o urt of H.P on 09 07 CIS 5 3(iv). Status report indicates following criminal antecedents of the petitioner: a) Case No. 12 2019 dated 24.1.2019 under Section 341 323 324 and 34 IPC. b) Case No. 63 2019 dated 11.5.2019 registered under Section 354(D) and 12 17 of POCSO Act at Police Station Shahpur. 3(v). State Forensic Science Laboratory Junga submitted its report according to which the recovered Ridley Capsules contained psychotropic substance Tramadol Hydrochloride. Total weight of Ridley capsules recovered from the vehicle in question occupied by all the four accused persons was 706.200 grams and total weight of the powder of these capsules was 600.600 grams. According to the status report Surinder Pal from whom the petitioner and other co accused persons had allegedly procured the contraband had initially absconded. His anticipatory bail application Cr.MP(M) No.11420 was dismissed as withdrawn by this Court on 16.7.2020. His second bail petition No.Cr.MP(M) No.13120 for grant of anticipatory bail without giving detail of his first bail petition was dismissed on 13.8.2020. His third anticipatory bail application No.15020 filed without giving details of previous two bail applications was Hig h C o urt of H.P on 09 07 CIS 6 dismissed on 7.9.2020. Investigating Agency was able to nab and arrest him only on 16.10.2020. His fourth bail petition bearing Cr.MP(M) No.9621 for grant of regular bail has been dismissed by this Court on 1st July 2021. Cr.MP(M) No.19120 preferred by petitioner in this Court was withdrawn by him on 11th November 2020 with liberty to approach the learned Trial Court. His regular bail was rejected by learned trial Court on 22.12.2020. Instant bail application has been preferred by him on 28.06.2020 which is being considered in this judgment. All other co accused are in custody. Their bail petitions stand rejected. 4. Learned Counsel for the petitioner has argued that the petitioner has been falsely implicated with the alleged offence. Whereas learned Additional Advocate General vehemently opposed the bail on the ground that commercial quantity of psychotropic substance Tramadol was recovered from the vehicle occupied by petitioner. Record shows that it was a case of joint possession of all the four accused persons. 5(i). Heroin as well as Ridley capsules allegedly supplied by the petitioner were recovered from the vehicle Hig h C o urt of H.P on 09 07 CIS 7 occupied by four co accused persons. Heroin so recovered weighed 8.38 grams which falls under commonly known ‘intermediate quantity’ under the NDPS Act. According to the SFSL report total weight of recovered capsules was 706.200 grams and total weight of the powder of recovered capsules was 600.600 grams. It would be apposite here to refer to the judgment passed by Hon’ble Apex Court in Criminal Appeal No.7217 titled as Hira Singh Vs. Union of India decided on 22nd April 2020 wherein it has been held that in the mixture of narcotic drugs or psychotropic substance with one or more neutral substance(s) the quantity of the neutral substance(s) is not to be excluded rather it is to be taken into consideration alongwith actual content by weight of the offending drug while determining the ‘small quantity’ or ‘commercial quantity’ of a narcotic drug or psychotropic substance. The relevant para from the judgment is reproduced thus: “10. In view of the above and for the reasons stated above Reference is answered as under: The decision of this Court in the case of E.Micheal Rajtaking the view that in the mixture of narcotic drugs and psychotropic substance with one or more neutral substance(s) the quantity of the neutral substance(s) is not required to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance and only the actual content by weight of the offending narcotic drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity is not a good law Hig h C o urt of H.P on 09 07 CIS 8 In case of seizure of mixture of Narcotic Drugs or Psychotropic Substances with one or more neutral substance(s) the quantity of neutral substance(s) is not to be excluded and to be taken into consideration alongwith actual content by weight of the offending drug while determining the “small or commercial quantity” of the Narcotic Drugs or Psychotropic Substances Section 21 of the NDPS Act is not stand alone provision and must be construed alongwith other provisions in the statute including provisions in the NDPS act including Notification No. S.O.2942(E) dated 18.11.2009 and Notification S.O. 1055(E) dated 19.10.2001. Challenge to Notification dated 18.11.2009 adding “Note 4” to the Notification dated 19.10.2001 fails and it is observed and held that the same is not ultra vires to the Scheme and the relevant provisions of the NDPS Act. Consequently writ petitions and Civil Appeal No. 5218 2017 challenging the aforesaid notification stand dismissed.” In the instant case total weight of powder of recovered capsule was 600.600 grams. This weight exceeds 250 grams notified as commercial quantity of Tramadol under the NDPS Act. Therefore rigors of Section 37 of the NDPS Act get attracted. Section 37 reads as under: “37. Offences to be cognizable and non bailable. Notwithstanding anything contained in the Code of Criminal Procedure 1973(a) every offence punishable under this Act shall be cognizable no person accused of an offence punishable forshall 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 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. The limitations on granting of bail specified in clauseof sub sectionare 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.” Hig h C o urt of H.P on 09 07 CIS 9 In this regard Hon’ble Apex Court in AIR 2020 SC 721 State of Kerala Etc. Versus Rajesh Etc. held as under vide paras 19 to 21: “19. This Court has laid down broad parameters to be followed while considering the application for bail moved by the accused involved in offences under NDPS Act. In Union of India Vs. Ram Samujh and Ors. 1999(9) SCC 429 it has been elaborated as under: “7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case the accused commits murder of one or two persons while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting deathblow to a number of innocent young victims who are vulnerable it causes deleterious effects and a deadly impact on the society they are a hazard to the society even if they are released temporarily in all probability they would continue their nefarious activities of trafficking and or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court dealing with the contention with regard to punishment under the NDPS Act has succinctly observed about the adverse effect of such activities in Durand Didier v. Chief Secy. Union Territory of Goa1 SCC 95)] as under: 24. With deep concern we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore in order to effectively control and eradicate this proliferating and booming devastating menace causing deleterious effects and deadly impact on the society as a whole Parliament in its wisdom has made effective provisions by introducing this Act 885 specifying mandatory minimum imprisonment and fine. 8. To check the menace of dangerous drugs flooding the market Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37 namely 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 are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid Hig h C o urt of H.P on 09 07 CIS 10 mandate while ordering the release of the respondent accused on bail. Instead of attempting to take a holistic view of the harmful socio economic consequences and health hazards which would accompany trafficking illegally in dangerous drugs the court should implement the law in the spirit with which Parliament after due deliberation has amended.” 20. 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 of the CrPC but is also subject to the limitation placed by Section 37 which commences with nonobstante 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. 21. 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 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 the case on hand the High Court seems to have completely overlooked the underlying object of Section 37 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 s indeed uncalled for.” In order to make out a case for release on bail petitioner has to satisfy the following twin conditions imposed in the aforesaid section: Court should be satisfied that there are reasonable grounds for believing that the petitioner is not guilty of such offence and Petitioner is not likely to commit any offence while on bail. Hig h C o urt of H.P on 09 07 CIS 11 5(ii). It has already been noticed that though the quantity of the Heroin recovered from the vehicle in question fell under commonly known as ‘intermediate quantity’. However total weight of powder of 1102 number of Ridley capsules containing psychotropic substance Tramadol hydrochloride was 600.600 grams. The weight of powder of the capsules allegedly recovered from the vehicle exceeded 250 grams notified as commercial quantity of psychotropic substance Tramadol under the NDPS Act. Possession consists of two elements corpus or the physical control and the second animus or intent6 SCC 222 titled Mohan Lal vs. State of Rajasthan). I have perused the record. At this juncture it cannot be said that petitioner was not in joint possession of the recovered contraband. Heroin was allegedly recovered from the middle of the front seat whereas Ridley capsules were recovered underneath the seat adjoining to the driver seat of the vehicle. During investigation all the accused persons have statedly admitted about consuming the contraband and purchasing it from Surinder Pal. As per record though the co accused Samridhi Bedi had obtained the recovered contraband from Surinder Pal but from the perusal of record at this stage it cannot be said that the contraband Hig h C o urt of H.P on 09 07 CIS 12 was meant to be used only by her or that the other accused persons were not in joint possession of the contraband. The petitioner therefore has failed to meet the requirements of Section 37 of the NDPS Act. It cannot be said at this juncture that there are no reasonable grounds to believe that petitioner is not guilty of the offence alleged against her. Therefore there is no merit in the bail petition which is dismissed at this stage reserving liberty to the petitioner to file fresh petition at an appropriate stage in accordance with law if so advised. It is clarified that observations made above are confined only to the adjudication of petition and shall have no effect on the merits of the matter. Learned trial Court shall decide the matter without being influenced by above observations. Jyotsna Rewal Dua Judge July 08 2021 Mukesh

If a charge sheet is filed by Central Crime branch a Magistrate cannot take cognizance of it unless directed by the State Government: Karnataka High Court

Magistrate court cannot take cognizance of a charge sheet filed by an officer of the Central Crime Branch (CCB) unless the State government declares the CCB as a police station. The Karnataka High Court presided over J. B.A. Patil laid down this ratio in the case of Dr. M.G. Gopal & Ors. Vs. State by Central Police, [Criminal Revision Petition No. 34/2018]. KIMS is one of among several other educational institutions run by Rajya Vakkaligara Sangha. The Complainant alleged that one Gopal misused his power and secured admission for six medical students in the academic year 2014-15. He further stated that for the admission Gopal procured Rs. 30 lakhs. The Complainant stated that in order to secure an admission for his son in the first year MBBS course an amount of Rs. 17 lakhs was paid by him. Later instead of granting admission to the son of the complainant, the authorities admitted the niece of another accused. A case was registered against the Dean and two others for offences of breach of trust and cheating. The Magistrate Court directed to register a case against the Petitioners for offences under Section 406, 477, 420, 120 B and 114 read with Section 34 of the India Penal Code. Aggrieved by the Order the Dean and others filed a criminal revision before the High Court. The Petitioner submitted that final report by CCB which had not been declared as a police station as contemplated under Section 2(s) of the Criminal Procedure Code. Further it was contended that as there is no report filed by the investigating officer in-charge of the police station, therefore, cognizance taken by the Magistrate is not sustainable in law. The Court in this case relied on Section 173(2) of CrPC and stated that, “Section 173(2) of the Code contemplates submission of report of investigation. From plain reading of the said provision it is evident that it is the officer in-charge of a police station who is authorized to forward and submit the report in the prescribed form to the jurisdictional Magistrate to take cognizance. The words used in Section 173(2) are “shall forward” which themselves give the meaning that it is the officer in-charge of the police station to file the final report.” The Court further stated that, “…it is the police officers superior in rank to an officer-in-charge of the police station who have been conferred with such power as that of the officer in-charge of the police station. But in the case on hand, CCB police are not the officers superior in rank to an officer in-charge of the police station in the local jurisdiction. In that light, the contention which has been taken up by the learned SPP-I is not acceptable.”

1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF JANUARY 2021 THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL REVISION PETITION NO.34 2018 CRIMINAL REVISION PETITION NO.1237 2016 IN CRIMINAL REVISION PETITION NO.34 2018: BETWEEN : Principal & Dean of KIMS S o late M.G.Govindaiah Aged about 63 years No.3793 13th Cross Banashankari 2nd Stage Bengaluru 560 070. By Sri Shankarappa Advocate) AND : … Petitioner 1. State by Central Police CCBChamrajpet Bengaluru 560 001. 2. K.R.Choudary S o late Sri Kajala Ganji Naidu Aged about 56 years ‘Samskruthi’ No.21A 2 37th ‘A’ Cross 8th Block Jayanagar Bengaluru 560 082. … Respondents By Sri V.M.Sheelvant SPP I for R1 Sri S.Subramanya Advocate for R2) This Criminal Revision Petition is filed under Section 397 r w 401 of Cr.P.C praying to set aside the order dated 07.12.2017 passed by the IV Additional Chief C.C.No.13525 2016 and discharge the petitioner from the alleged offences and call for the records of the trial Court and pass appropriate orders. Magistrate Bengaluru IN CRIMINAL REVISION PETITION NO.1237 2016: BETWEEN : 1. Dr. Appaji Gowda M.S. Aged about 60 years Rajya Vakkaligara Sangha No.1132 Prestige South Ridge Sy.No.25 Hosakerehalli Banashankari 3rd Stage Bengaluru 560 085. 2. Dr.Nisarga M.D. DCH. FIAP Aged about 64 years Chairman Governing Council Kempegowda Institute of Medical Sciences No.121 8 T.Mariyappa Layout 1st Block Jayanagar Bengaluru 560 011. By Sri C.V.Nagesh Senior Counsel for Sri Raghavendra K. Advocate ) … Petitioners 3 AND : 1. State of Karnataka By the Station House Officer Central Police Station 2. The Police Inspector F & M Squad Central Crime Branch N.T.Pet Bengauru 560 002. 3. K.R.Choudary S o late Sri Kajala Ganji Naidu Aged about 53 years R at ‘Samskruthi’ No.21A 37th ‘A’ Cross 8th Block Jayanagar Bengaluru 560 082. Amended vide Court Order dated 15.12.2016) … Respondents By Sri V.M.Sheelvant SPP I for R1 to R2 Sri S.Subramanya Advocate for R3) This Criminal Revision Petition is filed under Section 397 r w 401 of Cr.P.C praying to set aside the order dated 01.06.2016 passed in C.C.No.13525 2016 on the file of IV ACMM Bengaluru directing the registration of a case against the petitioners for offences which are made penal under Sections 406 477 420 120B 114 r w Section 34 of IPC and ordering process against them for their appearance in the case before the court and further be pleased to quash the proceedings that are being recorded in the case. 4 These Criminal Revision Petitions are having been heard and reserved on 12.01.2021 coming on for ‘pronouncement of order’ this day through ‘video conference’ the Court made the following: O R D E R Criminal Revision Petition No.34 2018 is filed by accused No.3 challenging the order dated 7.12.2017 passed in CC.No.13525 2016 whereas Criminal Revision Petition No.1237 2016 is filed by accused Nos.1 and 4 to set aside the order dated 1.6.2016 passed in very CC.No.13525 2016 on the file of IV Additional CMM Court Bengaluru for the offences punishable under 406 477 420 120B 114 r w. Section 34 of IPC. 2. I have heard Sri Shankarappa learned counsel for accused No.3 petitioner in Criminal Revision Petition No.34 2018 Sri C.V.Nagesh learned Senior Counsel for accused Nos.1 and 4 petitioners in Criminal Revision Petition No.1237 2016 Sri V.M.Sheelvant learned SPP I for respondent State and Sri S.Subramanya learned 5 counsel for the complainant respondent No.2 in Criminal Revision Petition No.34 2018 and respondent No.3 in Criminal Revision Petition No.1237 2016. 3. The gist of the case as averred in the complaint is that Kempegowda Institute of Medical Sciencesis one among several other educational institutions run by Rajya Vakkaligara Sangha. For the academic year 2014 15 in respect of allotment of medical seats though under the management quota there was scope for admission accused No.1 by misusing his power got admitted six medical students by directing accused No.3 though accused No.3 intimated him that it is not possible for him to do the same. He got admitted the said students on 31.5.2014 by taking an amount of Rs.30 Lakhs. Subsequently on 3.6.2014 an amount Rs.17 Lakhs was paid for getting the son of the complainant admitted to the first Year MBBS Course. For the purpose of recommendation from accused No.2 the 6 Director of Vakkalagira Sangha a reference letter has been given. One reference letter has been given by accused No.2 to get seat under management quota and Rs.65 Lakhs has been collected for development charges Rs.10 000 for hostel charges Rs.5 000 as donation and Rs.5 000 has been collected for Krishnappa Rangamma Educational Trust. It is further alleged that on 16.8.2014 an amount of Rs.3 72 000 has been taken as the fees Rs.1 00 000 has been taken towards Teachers’ Gratuity Fund donation Rs.7 150 Students’ Welfare Association and Rs.13 900 for graduation charges. Subsequently instead of admission of the son of the complainant they got admitted the niece of accused No.5. and thereby they have committed an offence of breach of trust cheating and other 4. It is the submission of Sri Shankarappa learned 7 Crl.RP.No.34 2018) that whatever the instructions which have been given by the management accused No.3 has carried the same. He is not at fault at any time and he has not committed any offence as alleged with the mala fide intention. It is his further submission that police assured accused No.3 to become approver and make him as a witness. Without arresting him the police brought him before the learned Magistrate on 10.11.2014 and his statement has been recorded under Section 164(5) of Code of Criminal Procedure of Section 190 of the Code gives Magistrate to take cognizance of an offence upon a police report of such act. 9 It is his further submission that the police report has been defined under Section 2(r) of the Code. As per the said Section police report means a report forwarded by a police officer to a Magistrate under sub section of Section 173 of the Code. As per Section 173(2) of the Code it is the officer in charge of the police station who shall forward the report to the Magistrate empowered to take the cognizance and as such admittedly the present case has been filed with a final report by CCB which has not been declared as a police station as contemplated under Section 2(s) of the Code. When the CCB Inspector is not in charge of the police station he is not competent to file the report. It is his further submission that CCB being a specialized Investigating Agency can investigate into a particular crime which is referred to it either by judicial order of the Court or by an administrative order. It is his further submission that this Court in the case of Rakesh Shetty Vs. State of Karnataka & others in WP.No.11169 2020 disposed of on 5.11.2020 has 10 held that CCB not being a police station neither a person in charge of CCB nor an officer forming part of CCB can register any complaint. In that light there is no report filed by the Investigating Officer in charge of the police station and cognizance taken by the learned Magistrate by order dated 1.6.2016 is not sustainable in law. It is his further submission that the question of interpretation of Section 173 of the Code came before the Hon’ble Apex Court in the case of State of Bihar and another Vs. Lalu Singh reported 4 SCC 663 and therefore under Section 36 of the Code CCB is not the Officer in charge of the police station for the purpose of submitting the report contemplated under Section 173(2) of the Code. As such the cognizance taken without there being any proper report by the in charge Officer is not sustainable in law. It is his further submission that the interpretation of Section 173 of the Code is no more res integra and it is the Officer in charge of the police 11 station shall forward the report to the Magistrate empowered to take cognizance. 6. It is the second contention of the learned Senior Counsel that while passing the impugned order dated 1.6.2016 the learned Magistrate has not applied his mind while taking cognizance. It is his further submission that in order to issue notice under Section 204(2) of the Code the learned Magistrate has to satisfy himself that there exists prima facie case and there must be sufficient grounds made out by the complainant. While issuing the summons and the cognizance Magistrate has to verify the complaint the statement of the witnesses and thereafter he shall issue process as against the accused. It is his further submission that an opinion has to be formed after due application of mind that there is some basis for proceeding against the accused. But in the instant case no such material is available. In order to substantiate his contention he has 12 relied upon the decision of the Hon’ble Apex Court in the case of Sunil Bharti Mittal Vs. Central Bureau of Investigation reported inof the Code no proceedings of the police officer shall be challenged on the ground that the officer was not empowered the purpose of investigation. It is his further submission that the order of the trial Court shows that there is application of mind of the learned Magistrate though he has not referred to 14 with the statement of the witnesses. There is no illegality or irregularity in taking the decision. It is his further submission that the CBI officers are exercising the powers of the superior officers and they are having local area jurisdiction and they can exercise the power. CCB police is the specially constituted branch for investigation they are superior in rank and as such they can investigate the case and file a final report before the Court. On these grounds he prayed to dismiss both the 9. It is the submission of the learned counsel for respondent complainant that CCB is attached to Central police station and the FIR filed indicates that it is Central Police who has filed the charge sheet. It is his further submission that under Section 2(s) of the Code any post or a place declared by the State Government has to be considered as a police station and as per Section 2(o) of the Code in the absence of any Station House Officer 15 the police officer present at the Station House next in rank will be officer in charge of the police station. It is his further submission that the person who investigates the complaint is also competent to file the report under Section 173(2) of the Code. It is his further submission that the CCB police are authorized to file the report and as such the Investigating Agency’s report filed before the Court is valid though not constituted as police station under the Code. It is his further submission that the Magistrate if peruses the statement of the witnesses and passes the order it is subject to satisfaction of the Magistrate and the same cannot be held that he has not applied his mind. It is his further submission that the entire material produced before the Magistrate has been considered and the petitioners accused taking unjust advantage of the situation have taken the money from the complainant by conceding the merits. As per Police Manual there is a breach of trust and the Investigating Officer has also clearly stated that there was entrustment 16 and the same has been misutilized. It is his further submission that the complainant has filed a writ petition before this Court and this Court has clearly observed that the said order will not come in the way to initiate appropriate criminal and civil proceedings against two Directors of the Sangha and the same has not been challenged. It is his further submission that the petitioners accused got admitted Ms.Lekhashree and the son of the complainant in excess of the admission capacity and the said fact has also been admitted in the said writ petition. It is his further submission that the amount has been taken for sponsorship development funds and the said fact has also been disputed much by the accused. It is his further submission that it is accused No.3 who has reduced to 20% of the seats at the instructions of accused Nos.1 and 4 and in that light there is sufficient material to hold that the petitioners accused have involved in the alleged crime. It is his further submission the CCB conducted 17 investigation and admittedly submitted the report in terms of Section 173 of the Code and CCB Officer can exercise the power of an officer in charge of the police station and he is competent to submit the report. In order to substantiate the said contention he has relied upon a decision of Calcutta High Court in case of Chittaranjan Das Vs. State of West Bengal & others reported in AIR 1963 Calcutta 191 and the decision of the Hon’ble Apex Court State of Bihar and another Vs. Lalu Singhof the Code has to rely upon the report submitted by the Officer in charge of the police station. For the purpose brevity I quote Section 190 of the Code which reads as under: “190. Cognizance of offences by Magistrates. Subject to the provisions of 19 this Chapter any Magistrate of the first class and any Magistrate of the second class specially empowered in this behalf under sub section may take cognizance of any offence a) upon receiving a complaint of facts which constitutes such offence b) upon a police report of such facts c) upon information received from any person other than a police officer or upon his own knowledge that such offence has been committed.” 13. What constitutes a police report has been defined in Section 2(r) of the Code which reads as “2(r): ’police report’ means a report forwarded by a police officer to a Magistrate under sub sectionof section 173.” 14. What constitutes a police station has been defined in Section 2(s) of the Code which reads as under: under: 20 “2(2): “police station” means any post or place declared generally or specially by the State Government to be a police station and includes any local area specified by the State Government in this behalf.” 15. As per Section 2(o) of the Code “officer in charge of a police station” includes when the officer in charge of the police station is absent from the station house or unable from illness or other cause to perform his duties the police officer present at the station house who is next in rank to such officer and is above the rank of constable or when the State Government so directs any other police officer so present.” 16. On going through the scheme of the Code Section 173(2) of the Code contemplates submission of report of investigation. From plain reading of the said provision it is evident that it is the officer in charge of a police station who is authorized to forward and submit 21 the report in the prescribed form to the jurisdictional Magistrate to take cognizance. The words used in Section 173(2) are “shall forward” which themselves give the meaning that it is the officer in charge of the police station to file the final report. Though it is contended by the learned SPP I that under Section 36 of the Code the superior officer of the police station may exercise the same powers as could be seen from the said Section it is the police officers superior in rank to an officer in charge of the police station have been conferred with such power as that of the officer in charge of the police station. But in the case on hand CCB police are not the officers superior in rank to an officer in charge of the police station in the local jurisdiction. In that light the contention which has been taken up by the learned SPP I is not acceptable. It is even not much denied that the CCB is not a police station by itself and this proposition of law has also been laid down by a coordinate Bench of this Court in the case of Rakesh Shetty Vs. State of 22 Karnataka & others wherein at paragraphs 11.8 and 11.9 it has been observed as under: “11.8. The above contentions would indicate that admittedly CCB is not a police station. Therefore CCB by itself cannot register and investigate into any matter since there is an embargo on such registration of a complaint such power is conferred only on a person in charge of a police station. As such CCB not being a police station neither a person in charge of the CCB nor an officer forming part of CCB can register any 11.9. In the present matter no complaint has been registered by the CCB police.” 17. When CCB is not a police station then admittedly the final report filed by CCB which is an Investigating Agency is not in contemplation with the provisions of Section 173(2) of the Code. It is now no 23 more res integra. It has been held by the Hon’ble Apex Court in the case of State of Bihar and another Vs. Lalu Singhat paragraphs 8 9 and 10 and 11 as under: “8. Section 36 of the Code deals with the power of superior officers of police with reference to the officer in charge of a police station same reads as “36.Powers of superior officers of police.—Police officers superior in rank to an officer in charge of a police station may exercise the same powers throughout the local area to which they are appointed as may be exercised by such officer within the limits of his 9. Therefore under the scheme of the Code the power to submit report in terms of Section 173(2) of the Code is with the officer in charge of the police station. Further in view of Section 36 of the Code police officers superior in rank to an officer in charge of the police station throughout the local area have been conferred with the authority to 24 exercise the same power as that of officer in charge of police station. 10. In the present case the investigation has been conducted by the Inspector of CID and he had submitted the report under Section 173(2) of the Code. Therefore the question is as to whether the Inspector of CID can be treated in law as the officer in charge of the police station for the purpose of submitting the report contemplated under Section 173(2) of the Code. 11. The State Government in exercise of the powers under Sections 7 and 12 of the Police Act 1861 has framed the Bihar Police Manual. Chapter 15 thereof deals with the constitution and functions of the Criminal Investigation Department. Rule 431 with which we are concerned in the present appeal reads as follows: “431.(a) Sub Inspectors of the department deputed to districts have not the powers of an officer in charge of a police station nor of the subordinate of such an officer unless they are posted to a police station for the purpose of exercising such powers. It follows that unless 25 so posted they have not the powers of investigation conferred by Chapter XII CrPC and their functions are confined to supervising or advising the local officers concerned. If for any reason it be deemed advisable that a Sub Inspector of the department should conduct an investigation in person the orders of the Inspector General shall be taken to post him to a district where he shall be appointed by the Superintendent to the police station concerned. Such a necessity will not arise in case of Inspectors of CID as given in sub rule Sub Inspectors of the department shall not be employed to conduct person unless such orders have been obtained. Under Section 36 CrPC Inspectors and superior officers of CID are superior in rank to an officer in charge of a police station and as such may exercise the same powers throughout the State as may be exercised by an officer in charge of a police station within the limits of his 26 Rule 431(b) makes the Inspectors and superior officers of CID superior in rank to an officer in charge of a police station and they have been conferred with the same powers as may be exercised by an officer in charge of a police station. This Rule therefore envisages that an Inspector of CID can exercise the power of an officer in charge of a police station.” 18. On going through the said decision of the Hon’ble Apex Court the CID or superior in rank of the police officer in charge of the police station have been conferred power under Bihar Manual as per Rule 431(b) only because of the reason that the State Government in exercise of the powers under Sections 7 and 12 of the Police Act 1861 has framed the Bihar Police Manual and Rule 431 of the said Rules has authorized to exercise the said powers and in that light it has been held that the CID or superior in rank of the in charge of the police Station. But in the instant case it is fairly conceded by the respondents that no such authorization has been 27 given by the State to declare CCB as a police station. As per Section 2(s) of the Code the State Government has to declare either generally or specially any post or place to be a police station but no such declaration is forthcoming before this Court. In that light admittedly the investigation has been done by the CCB and it is he who had submitted the report in terms of Section 173 of the Code and in view of the discussion made by me above he cannot be considered to be an officer in charge. In that light the trial Court ought not to have taken cognizance on the report submitted by the CCB. In that light I am of the considered opinion that there is some substance in the contention taken up by the learned Senior Counsel appearing for accused Nos.1 19. The second contention taken up by the learned Senior Counsel is that the learned Magistrate has not applied his mind while taking cognizance. It is his and 4. 28 submission that the learned Magistrate has to specifically state that there are sufficient grounds to proceed against the accused. In that light he has relied upon the decision in the case of Sunil Bharti Mittal Vs. Central Bureau supra) wherein at paragraphs 51 and 53 it has been observed as under: “51. On the other hand Section 204 of the Code deals with the issue of process if in the opinion of the Magistrate taking cognizance of an offence there is sufficient ground for proceeding. This section relates to commencement of a criminal proceeding. If the Magistrate taking cognizance of a case upon a consideration of the materials before himthinks that there is a prima facie case for proceeding in respect of an offence he shall issue process against the accused.” 29 “53. However the words “sufficient ground for proceeding” appearing in Section 204 are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against the accused though the order need not contain detailed reasons. A fortiori the order would be bad in law if the reason given turns out to be ex facie incorrect.” 20. The order dated 1.6.2016 passed by the learned Magistrate reads as under: “The Charge sheet submitted by PI CCB F M N.T.Pete against accused No.1 to 5 in Crime No.161 2014 for the offences punishable U s.406 477 420 120(B) 114 r w. 34 IPC. The original FIR and complaint enclosed. Charge sheet and connected papers checked. Accused No.1 2 30 4 & 5 are on anticipatory bail. Accused No.3 is not arrested. Two sets of Charge sheet copies furnished. For Orders. Perused the statement of the witnesses and materials on record. Cognizance is taken for the offences punishable U s.406 477 420 120(B) 114 r w.34 IPC. Register the criminal case against accused. Issue SS to accused No.1 to 5. Returnable by 21. Though the learned Magistrate has observed that he has perused the statement of the witnesses and material on record but as discussed above while taking cognizance if he has not kept in view the provisions of Sections 190(1) and 173(2) of the Code whether the CCB is having any authority to file the report or not that itself shows that he has not applied his mind properly to the proposition of law and factual matrix of the case on hand. learned counsel the respondent 31 complainant by bringing notice of this Court to the order passed by a coordinate Bench of this Court in writ proceedings contending that some facts are admitted and the present petitions are not maintainable contentions taken up by the learned Senior Counsel are purely question of law and as such this Court can interfere with the order passed by the trial Court. In that light I am of the considered opinion that the order passed by the trial Court is not in accordance with law. It is also the contention of the learned counsel for accused No.3 that accused No.3 is not at all concerned with the alleged offence. But when the cognizance taken itself is not in accordance with law as discussed above the order dated 1.6.2016 passed by the Magistrate is required to be interfered with. 22. In Criminal Revision Petition No.34 2018 while passing the order dated 7.12.2017 dismissing the application for discharge under Section 239 of the Code 32 the trial Court has not kept in to view the above said 23. Be that as it may it is well settled proposition of law that on perusal of the charge sheet material if no case has been made out so as to frame the charge then the Court has to discharge the accused. When the final report is filed without there being any authority it is not a final report under Section 173(2) of the Code and the Court cannot take cognizance under Section 190(1) of the Code. In that light the order dated 7.12.2017 is also liable to be set aside. 24. Taking into consideration the aforesaid discussion I am of the considered opinion that the petitioners accused Nos.1 3 and 4 have made out a case so as to allow the petitions and to set aside the impugned orders dated 7.12.2017 and 1.6.2016. In that light the petitions are liable to be allowed. Accordingly I pass the following order: 33 Both the petitions are allowed. The impugned orders dated 7.12.2017 and 1.6.2016 passed CC.No.13525 2016 by the IV Additional CMM Court Bengaluru for the offences punishable under Sections 406 477 420 120B 114 r w. Section 34 of IPC are set Sd JUDGE ck

Accused alleged under Sections 328, 341/34 of I.P.C. and Sections 7/8 and 16/11 of the Protection of Children from Sexual Offences Act, bail granted: High Court of Uttarakhand.

When there is no reason to keep the applicant behind the bars for an indefinite period, then the accused should be released on bail. A single Judge bench comprising Hon’ble Justice Alok Kumar Verma, in the matter of Aamir Vs. State of Uttarakhand (FIRST BAIL APPLICATION NO.1490 of 2021), dealt with an issue where the petitioner filed the first bail application under Section 439 of the Code of Criminal Procedure, 1973 for grant of regular bail, alleged to have committed the offences under Sections 328, 341/34 of I.P.C. and Sections 7/8 and 16/11 of the Protection of Children from Sexual Offences Act, 2012. In the present case, the informant informed the police that her son, aged about 16 years, had gone to the locality in the evening for some work, but he did not return home. On searching the next morning her son was found unconscious on the roof of the present applicant. The son informed that he was given some intoxication by the co-accused, that he smelled and fainted and in such a State, he was abducted and sexually assaulted by the co-accused. The learned counsel for the applicant submitted that there was a delay in filing of FIR and no reason was specified for that delay. The counsel further stated that the statement of the alleged victim has been recorded under Section 161 of the Code of Criminal Procedure, 1973, and according to him, he did not know what happened to him. The counsel also submitted that the release of the accused cannot tamper with any evidence, as the chargesheet had already been filed. The Deputy Advocate General however opposed the Bail application. The court observed that- “there is no reason to keep the applicant behind the bars for an indefinite period, therefore, without expressing any opinion as to the merit of the case, this Court is of the view that the applicant deserves bail at this stage.” Thereby the bail application was allowed. Click Here For The Judgement

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL THE HON’BLE SRI JUSTICE ALOK KUMAR VERMA FIRST BAIL APPLICATION NO.14921 04th AUGUST 2021 …Applicant Between: and State of Uttarakhand. …Respondent Counsel for the Applicant : Mr. B.M. Pingal. Counsel for the Respondent :Mr. T. C. Aggarwal learned Deputy Advocate General with Mr. P. S. Uniyal learned Brief Holder for the State. Hon’ble Alok Kumar Verma J. This bail application has been filed under Section 439 of the Code of Criminal Procedure 1973 for grant of regular bail in connection with FIR No.238 of 2020 registered with Police Station Ramnagar District Nainital for the offence under Sections 328 341 34 of I.P.C. and Sections 7 8 and 16 11 of the Protection of Children from Sexual Offences Act 2012. On 26.05.2020 an information was given by the informant to the Police Station Ramnagar District Nainital alleging that her son aged about 16 years had gone to the locality in the evening on 20.05.2020 for some work 2 but he did not return home. He was searched. The next day after being told by a lady of the locality she found her son unconscious on the roof of the present applicant. Her son told her that the co accused had called him and had given him some intoxicant. He fainted as soon as he smelled that object. Her son was abducted and sexually assaulted by the co accused. Heard Mr. B.M. Pingal the learned counsel for the applicant and Mr. T.C. Aggarwal the learned Deputy Advocate General with Mr. P.S. Uniyal the learned Brief Holder for the State. Mr. B.M. Pingal the learned counsel for the applicant submitted that the first information report has been lodged with extreme delay and no sufficient explanation has been given for this delay no medical report of the victim is filed by the State the statement of the alleged victim has been recorded under Section 161 of the Code of Criminal Procedure 1973 and according to him he did not know what happened to him the applicant is in custody since 19.06.2020 he is a permanent resident of District Nainital the co accused has been granted bail by this High Court the charge sheet has already been filed therefore there is no chance of tampering with the evidence. Mr. T. C. Aggarwal learned Deputy Advocate General the State opposed the bail application. However he fairly conceded that the co accused has been granted bail by this Court. Bail is the rule and committal to jail is an exception. Refusal of bail is a restriction on the personal 3 liberty of the individual guaranteed under Article 21 of the Constitution of India. The object of keeping the accused person in detention during the trial is not punishment. The main purpose is manifestly to secure the attendance of the accused. Having considered the submissions of learned counsel for both the parties and in the facts and circumstances of the case there is no reason to keep the applicant behind the bars for an indefinite period therefore without expressing any opinion as to the merit of the case this Court is of the view that the applicant deserves bail at this stage. The bail application is allowed. Let the applicant Aamir be released on bail on his executing a personal bond and furnishing two reliable sureties each in the like amount to the satisfaction of the court concerned with the following conditions : i) The applicant shall attend the trial court regularly and he shall not seek any unnecessary adjournment ii) The applicant shall not directly or indirectly make any inducement threat or promise to any person acquainted with the facts of this case. 10. It is clarified that if the applicant misuses or violates any of the conditions imposed upon him the prosecution will be free to move the court for cancellation of bail. 11. The registry is directed to send a copy of this order to the concerned court for onward compliance forthwith. ALOK KUMAR VERMA J. Dt: 04th August 2021 Pant

Section 11BB of Central Excise Tax does not distinguish between intentional and unintentional delay: Bombay High Court

Once there is delay in payment of refund within three months from the date of receipt of application, rigour of section 11BB sets in and payment of interest on the delayed refund becomes obligatory. It follows automatically; as a matter of law being a mandate of the statute. A division bench comprising of Ujjal Bhuyan J and Milind N Jadhav J, while adjudicating the matter in Qualcomm India Private Limited Vs. Union of India and others; [WRIT PETITION NO.1775 OF 2020] dealt with tax exemption by a company. Petitioner is a company incorporated under the Companies Act, 1956 having its registered office at Bandra Kurla Complex, Mumbai. Petitioner is engaged in the business of providing support services primarily to its foreign affiliates. It is stated that services provided by the petitioner qualified as export of service under the erstwhile Export of Service Rules, 2006 as well as under rule 6A of the Service Tax Rules, 1994 read with rule 3 of the Place of Provision of Services Rules, 2012. Hence, petitioner did not pay any service tax on the output services so exported. This resulted into accumulation of CENVAT credit of service tax paid on input services. Several show cause notices were issued to the petitioner by the Assistant Commissioner i.e., respondent No.3 to show cause as to why the refund claims of the petitioner should not be rejected primarily on the ground that the input services did not have any nexus with the output services and thus were not eligible for refund. Responding to such show cause notices, petitioner submitted detailed replies enclosing therewith the requisite documents. Refund sanctioning authority passed orders in original in respect of the refund claims made by the petitioner partially sanctioning the refund amount and partially rejecting the refund amount. Against the orders partially rejecting the refund claim, petitioner preferred appeals before the appellate authority. Learned counsel for the respondent stated that there was no intentional delay in granting the refund to the petitioner. Therefore, question of payment of interest would not arise. As such, the writ petition should be dismissed.

on 21 05 2021 on 22 03 WP1775_20.docIN THE HIGH COURT OF JUDICATURE AT BOMBAYCIVIL APPELLATE JURISDICTIONWRIT PETITION NO.1775 OF 2020Qualcomm India Private Limited…PetitionerVs.Union of India and others …RespondentsMr. Prakash Shah a w. Mr. Arun Jain and Mr. Jas Sanghvi i b. PDSLegal for Petitioner.Mr. Sham Walve a w. Mr. Ram Ochani for Respondents. CORAM : UJJAL BHUYAN &MILIND N. JADHAV JJ.Reserved on :JANUARY 12 2021Pronounced on:MAY 21 2021Judgment and Order :Hyderabad in its own case granting interest on therefund amount sanctioned belatedly.10.Respondent No.3 vide letter dated 21.06.2019 informed thepetitioner that no other document evidencing that refund was sanctionedlate had been submitted. Hence he stated that claim for interest could6 17 on 21 05 2021 on 22 03 WP1775_20.docnot be processed on the basis of the letter dated 02.05.2019. However inthe said letter respondent No.3 completely ignored the previous letter ofthe petitioner dated 15.05.2017 and that the letter dated 02.05.2019 wasonly a sequitur to the earlier letter dated 15.05.2017.10.1.Notwithstanding the above petitioner again renewed the prayerfor grant of interest on delayed refund vide letter dated 20.08.2019followed by reminder dated 10.09.2019. However petitioner has notreceived any communication from the office of respondent No.3.11.Aggrieved present writ petition has been filed seeking the reliefas indicated above.12.Respondent Nos.2 and 3 have filed a common reply affidavitthrough Shri. Milind Gawai Principal Commissioner of Central Goodsand Services Taxand Central Excise Mumbai EastCommissionerate. At the outset an objection has been raised thatpetitioner has an alternative remedy of filing appeal before theCommissioneragainst the orders in original declining interest.Since petitioner has not availed the alternative remedy petitioner may berelegated to the appellate forum for the reliefs sought for.12.1.On merit it is stated that petitioner had filed refund applicationsand after scrutiny of the applications the refund sanctioning authorityhad issued various show cause notices to the petitioner as to why therefund claims made by the petitioner should not be rejected inter alia onthe ground that the input services did not have any nexus with the outputservices exported and were thus not eligible for refund. Petitioner wasalso required to produce all the evidences upon which it intended to relyon in support of its claim. Personal hearing was also granted to thepetitioner.12.2.Refund sanctioning authority passed various orders in original7 17 on 21 05 2021 on 22 03 WP1775_20.docpartially sanctioning the refund amount and partially rejecting the refundamount. In some of the cases the refund claim was partially rejected onthe ground that the input services did not have any nexus with the outputservices exported and thus were not eligible to refund. In the remainingcases refund claims were sanctioned by the sanctioning authority afterscrutinizing entire relevant documents submitted by the petitioner.Further refund amount of partially rejected claims were also sanctionedafter receiving orders of the appellate authority i.e. Commissioner(Appeals) on appeals filed by the petitioner. With the implementation ofgoods and services taxwith effect from 01.07.2017 thedepartmental set up was required to be re organized. This exercise of re organization caused certain delay in processing of appeals and in issuingfurther orders sanctioning refund as per the order in appeals. However there was no intentional delay by the refund sanctioning authority.12.3.It is stated that refund claims were sanctioned granted undersection 11B of the Central Excise Act 1944 as made applicable toservice tax vide section 83 of the Finance Act 1994. Refund claims weresanctioned after personal hearing and after scrutinizing the entirerelevant documents of the petitioner. There was no intentional delay insanctioning of refund by the refund sanctioning authority.13.Learned counsel for the parties have made submissions based onthe pleadings. Mr. Shah learned counsel for the petitioner has assertedthat payment of interest under section 11BB of the Central Excise Act 1944 is mandatory in all the 19 refund applications filed by thepetitioner as the refund claims were allowed much after three months ofreceipt of the applications. Therefore under section 11BB of the CentralExcise Act 1944 as made applicable to service tax vide section 83 of theFinance Act 1994 petitioner is entitled to interest as a matter of right forsuch delayed payment of refund. There is no question as to whether thedelay caused in refund is intentional or not intentional. Besidesreferring to sections 11B and 11BB of the Central Excise Act 8 17 on 21 05 2021 on 22 03 WP1775_20.doc1944 and circular dated 01.10.2002 of the Central Board of Excise andCustoms Mr. Shah has placed reliance on a number of decisions whichhe has furnished by way of a compilation.14.On the other hand Mr. Walve learned counsel for the respondentshas reiterated the averments made in the reply affidavit filed on behalf ofrespondent Nos.2 and 3 and asserts that there was no intentional delay ingranting the refund to the petitioner. Therefore question of payment ofinterest would not arise. As such the writ petition should be dismissed.15.Submissions made by learned counsel for the parties havereceived the due consideration of the Court. Also perused the judgmentscited at the Bar.16.Section 11B of the Central Excise Act 1944 deals with claim forrefund of duty and interest if any paid on such duty. Relevant portion ofsection 11B reads as under: “Section 11B. Claim for refund of duty and interest if any paid on such duty as the applicant may furnish toestablish that the amount of duty of excise and interest if any paid on such duty in relation to which such refund is claimedwas collected from or paid by him and the incidence of suchduty and interest if any paid on such duty had not been passedon by him to any other person :Provided that where an application for refund has beenmade before the commencement of the Central Excises andCustoms LawsAct 1991 such application shallbe deemed to have been made under this sub section asamended by the said Act and the same shall be dealt with inaccordance with the provisions of sub sectionsubstitutedby that Act :9 17 on 21 05 2021 on 22 03 WP1775_20.docProvided further that the limitation of one year shall notapply where any duty and interest if any paid on such duty hasbeen paid under protest.(2)If on receipt of any such application the AssistantCommissioner of Central Excise or Deputy Commissioner ofCentral Excise is satisfied that the whole or any part of the dutyof excise and interest if any paid on such duty paid by theapplicant is refundable he may make an order accordingly andthe amount so determined shall be credited to the Fund :Provided that the amount of duty of excise and interest if any paid on such duty as determined by the AssistantCommissioner of Central Excise or Deputy Commissioner ofCentral Excise under the foregoing provisions of this sub section shall instead of being credited to the Fund be paid tothe applicant if such amount is relatable to unspent advance deposits lying in balance in theapplicant s account current maintained with theCommissioner of Central Exciseofthe first proviso shall be issued unless in the opinion of theCentral Government the incidence of duty and interest if any paid on such duty has not been passed on by the personsconcerned to any other person.(3)Notwithstanding anything to the contrary contained inany judgment decree order or direction of the Appellate10 17 on 21 05 2021 on 22 03 WP1775_20.docTribunal or any Court or in any other provision of this Act orthe rules made thereunder or any other law for the time beingin force no refund shall be made except as provided in sub sectionof section 11B says that any person claimingrefund of any duty of excise and interest if any paid on such duty maymake an application for refund of such duty and interest if any paid onsuch duty to the Assistant Commissioner of Central Excise or DeputyCommissioner of Central Excise before the expiry of one year from therelevant date in such form and in such manner as may be prescribed. Theapplication shall be accompanied by documentary and other evidence insupport of the claim. Sub sectionof section 11B provides that uponreceipt of any such application if the Assistant Commissioner of CentralExcise or Deputy Commissioner of Central Excise is satisfied that thewhole or any part of the duty of excise and interest if any paid on suchduty by the applicant is refundable he may make an order accordinglywhereafter the amount is to be refunded.17.Section 11BB deals with interest on delayed refunds. Since thisprovision is relevant the same is extracted hereunder: “Section 11 BB. Interest on delayed refunds. If any duty ordered to be refunded under sub sectionofsection 11B to any applicant is not refunded within threemonths from the date of receipt of application under sub sectionof that section there shall be paid to that applicantinterest at such rate not below five per cent and not exceedingthirty per cent per annum as is for the time being fixed by theCentral Government by Notification in the Official Gazette onsuch duty from the date immediately after the expiry of threemonths from the date of receipt of such application till the dateof refund of such duty :Provided that where any duty ordered to be refundedunder sub sectionof section 11B in respect of anapplication under sub sectionof that section made beforethe date on which the Finance Bill 1995 receives the assent ofthe President is not refunded within three months from suchdate there shall be paid to the applicant interest under thissection from the date immediately after three months from such11 17 on 21 05 2021 on 22 03 WP1775_20.docdate till the date of refund of such duty.Explanation. Where any order of refund is made by theCommissionerAppellate Tribunal National TaxTribunal or any court against an order of the AssistantCommissioner of Central Excise or Deputy Commissioner ofCentral Excise under sub sectionof section 11B the orderpassed by the CommissionerAppellate Tribunal National Tax Tribunal or as the case may be by the court shallbe deemed to be an order passed under the said sub sectionof section11B to any applicant is not refunded within three months from the dateof receipt of application under sub sectionof section 11B there shallbe paid to that applicant interest at such rate which is not below 5% andnot above 30% per annum as may be fixed by the central government by notification in the Official Gazette. The interest will be calculated forthe period commencing from the date immediately after expiry of threemonths from the date of receipt of such application till the date of refundof such duty.18.We may also mention that section 83 of the Finance Act 1994makes it clear that provisions of those sections of the Central Excise Actmentioned therein shall apply as far as may be in relation to service taxas they apply in relation to a duty of excise. Sections 11B and 11BB ofthe Central Excise Act are included and accordingly the said sectionsshall be applicable in relation to service tax.19.Central Board of Excise and Customs New Delhi had issued acircular dated 01.10.2002 regarding non payment of interest in refund rebate cases which were sanctioned beyond three months of filing ofapplication. Referring to section 11BB of the Central Excise Act andrepresentations received from claimants expressing grievance thatinterest due to them on sanction of refund rebate claims beyond theperiod of three months had not been granted by the central excise12 17 on 21 05 2021 on 22 03 WP1775_20.docformations the Central Board stressed that provisions of section 11BBof the Central Excise Act are attracted automatically for any refundsanctioned beyond the period of three months. The jurisdictional centralexcise officers were impressed upon not to wait for instructions fromany superior officer for grant of interest. It was emphasized that allnecessary actions should be taken to ensure that no interest liability isattracted but should the liability arise the legal provision for payment ofinterest should be scrupulously followed. The aforesaid circular dated01.10.2002 is quoted hereunder: “ Circular No.670 61 2002 CX dated 1 10 2002F.No.268 51 2002 CX.8Government of IndiaMinistry of FinanceE.L.T. T16] wherein Board hasdirected that responsibility should be fixed for not disposing ofthe refund rebate claims within three months from the date ofreceipt of application. Accordingly jurisdictional13 17 on 21 05 2021 on 22 03 WP1775_20.docCommissioners may devise a suitable monitoring mechanism toensure timely disposal of refund rebate claims. Whereas allnecessary action should be taken to ensure that no interestliability is attracted should the liability arise the legalprovision for the payment of interest should be scrupulouslyfollowed.” 20.In Ranbaxy Laboratories Limited Vs. Union of India 10SCC 292 Supreme Court held that section 11BB comes into play onlyafter an order for refund has been made under section 11B but interestunder section 11BB becomes payable if on expiry of a period of threemonths from the date of receipt of the application for refund the amountclaimed is still not refunded. Thus the only interpretation of section11BB that can be arrived at is that interest under the said sectionbecomes payable on the expiry of a period of three months from the dateof receipt of the application under sub sectionof section 11B of theCentral Excise Act. It was pointed out that it is a well settled propositionof law that a fiscal legislation has to be construed strictly one has tolook merely at what is said in the relevant provision there is nothing tobe read in nothing to be implied and there is no room for anyintendment. On the basis of the above provisions Supreme Courtclarified that the liability of the revenue to pay interest under section11BB of the Central Excise Act commences from the date of expiry ofthree months from the date of receipt of application for refund undersection 11B(1) and not on the expiry of three months from the date onwhich order of refund is made.21.Shroff United Chemicals Limited Vs. Union of India 2011Limited Vs. Union of India 2013ELT 1314 17 on 21 05 2021 on 22 03 WP1775_20.docexamined the question as to entitlement of the petitioners to interestunder section 11BB of the Central Excise Act on delayed excise dutyrefund by the department to the petitioners. From a conjoint reading ofsections 11B and 11BB of the Central Excise Act it was held that if anyrefund of excise duty is ordered under section 11B(2) the same has to berefunded within three months from the date of receipt of applicationunder sub sectionof section 11B failing which interest would have tobe paid. Language of section 11B is very clear and unambiguous. Itspeaks of claiming refund of any duty of excise. No exception isprovided. It does not distinguish or differentiate between any kind ofexcise duty refund whether duty paid in excess or duty paid which areexempted. Reference was made to the decision of the Supreme Court inRanbaxy Laboratories LimitedLaboratories 2016ELT 193 the decision inRanbaxy Laboratories Limitedwas referred to and wasconcurred with. In the facts of that case it was held that it is obligatoryon the part of the revenue to intimate the assessee to remove deficiencyin the application if there are deficiencies within two weeks and in anyevent if there are still deficiencies it can proceed with the adjudicationand reject the application for refund but the adjudicatory process by nostretch of imagination can be carried on beyond three months. It isrequired to be concluded within three months failing which the statutoryconsequences mandated by section 11BB would come into play.24.Thus what can be culled out from the above is that if anapplication for refund is made the same is required to be adjudicatedwithin three months of receipt of the application. But if the refund isgranted after three months of receipt of the application then theapplicant would be entitled to interest on such delayed refund as a matterof right. The interest would cover the period from the date immediatelyafter expiry of the period of three months from the date of receipt of the15 17 on 21 05 2021 on 22 03 WP1775_20.docapplication till the date of payment of the refund.25.Adverting to the facts of the present case we have alreadyextracted the two statements furnished by the petitioner in the writpetition. In the first statement the dates of refund applications arementioned. In the second statement the dates of orders granting refundare mentioned. These statements are not disputed by the respondents.From a comparison of the two statements it is evident that the ordersgranting refund were passed after expiry of three months from the dateof receipt of the refund applications. Taking up one such refund orderdated 04.02.2010 pertaining to refund claim for the period from June 2008 to September 2008 we find that Assistant Commissioner ofService Tax Division III Mumbai had sanctioned refund claim ofRs.52 42 806.00 under section 11B of the Central Excise Act. The refundclaimwas received in the office on 29.06.2009 but therefund order was passed on 04.02.2010. Obviously there is delay andthe refund was granted much after expiry of three months from the dateof receipt of the application. In fact respondents have not disputed thatthe refund orders were passed beyond the period of three months fromthe date of receipt of the refund applications. Only defence put up is thatthere was no intentional delay by the respondents. We have alreadyanalyzed section 11BB of the Central Excise Act and the interpretationgiven thereto by the Supreme Court in Ranbaxy Laboratories Limited(supra). Section 11BB does not speak about or exempts any delay whichis not intentional. The section does not distinguish delay which isintentional and delay which is unintentional. Once there is delay inpayment of refund within three months from the date of receipt ofapplication rigour of section 11BB sets in and payment of interest onthe delayed refund becomes obligatory. It follows automatically as amatter of law being a mandate of the statute. Non granting of interest insuch a case would amount to failure to discharge statutory duty obligation by the refund sanctioning authority for which the aggrievedclaimant can seek a writ of mandamus from the Writ Court under Article16 17 on 21 05 2021 on 22 03 WP1775_20.doc226 of the Constitution of India. 26.Thus in the light of the discussions made above the writ petitionsucceeds. Petitioner would be entitled to interest under section 11BB ofthe Central Excise Act 1944 on the amounts refunded to it. RespondentNos.2 and 3 shall work out the interest amount payable to the petitionerin respect of the refund claims for the relevant periods which shall bepaid to the petitioner within three months from the date of receipt of acopy of this judgment and order.27.Writ petition is accordingly allowed. However looking into thefacts and circumstances of the case there shall be no order as to cost.(MILIND N. JADHAV J.) (UJJAL BHUYAN J.)17 17Minal Parab

Judgment without discussing the oral evidence or the evidence by way of affidavit is extremely cryptic: High Court of Delhi

The Trial Court ought to discuss the evidence on record in order to arrive at the conclusion as. Judgment passed by the Trial Court would extremely cryptic if there is no analysis of the evidence adduced by the parties at all. These were stated by High Court of Delhi, consisting Justice Prathiba M. Singh in the case of Ram Kishan vs. Satya Vir Singh [C.R.P. 51/2020] on 12.01.2022. The facts of the case are that the Petitioner and Respondent No.2 are brothers and sons of Late Shri Maithali Ram and Late Smt. Devki Rani. The case of the Petitioner is that the Respondent No.1 – Late Shri Satyavir Singh was the tenant in the half portion of the property (hereinafter “suit property”), which is a residential property. Initially, vide order dated 23rd March, 2012, the Trial Court granted leave to defend to the tenant. Thereafter, the matter proceeded before the Trial Court. A detailed evidence was led on behalf of both the parties. Vide the final judgment, the Trial Court dismissed the petition on two primary grounds. First, the suit property identified by the Petitioner was located in Shakarpur, whereas Shakarpur and Mandawali Fazalpur are two different localities. Hence, the Petitioner has failed to prove the ownership of the suit property. Secondly, the Trial Court held that there is no landlord-tenant relationship between the parties. The Counsel for the Petitioner submitted that the identity of the property was never in question in these proceedings. Reliance was placed upon a reply given by the Respondent No.1 to the legal notice issued by the Petitioner, wherein the Respondent No.1 clearly claimed ownership in the property located in Shakarpur, Shahdara, Delhi. It was further submitted that Respondent No.1 never challenged the identity of the property in the said reply. Thus, the Court could not have held that these are two separate properties, and that the ownership thereof has not been proved by the Petitioner. He further submits that the Trial Court has clearly gone beyond the mandate of Section 14(1)(e) of the DRC Act itself. The Counsel for the Respondents submitted that the documents which have been placed on record including the General Power of Attorney (GPA), describes the seller Smt. Maya Devi from whom the Petitioner’s parents purchased the suit property as a resident of property. However, he submitted that the sale is of the property in Mandawali Fazalpur, Delhi. It was therefore, submitted that even the sale deed shows that the property which was being sold is at Mandawali Fazalpur, and not Shakarpur.

7 IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 12th January 2022 RAM KISHAN C.R.P. 51 2020 & CM APPL. 10690 2020 Through: Mr. Dhanesh Relan Mr. Paritosh Dhawan Mr. Jatin Bhatia and Mr. Brinda Ajmani Advocates. ..... Petitioner Through: Mr. Puneet Goel Advocate. Respondents SATYA VIR SINGHTHR LRS & ANR. JUSTICE PRATHIBA M. SINGH Prathiba M. Singh J.This hearing has been done through video conferencing. 2. The present petition has been filed challenging the judgment dated 7th February 2020 passed by the Ld. SCJ RC Karkardooma Courts Delhi hereinafter “Trial Court”) in RC ARC No.345 2016 titled Sh. Ram Kishan v. Sh. Satyavir Singh & Anr. By the impugned judgment the petition under Section 14(1)(e) of the Delhi Rent Control Act 1958 filed by the Petitioner against the Respondent has been dismissed by the Trial Court. The Petitioner Shri Ram Kishan and Respondent No.2 Mr. Brij Mohan are brothers and sons of Late Shri Maithali Ram and Late Smt. Devki Rani. The case of the Petitioner is that the Respondent No.1 Late Shri Satyavir Singh is the tenant in the half portion admeasuring 37 1 2 sq. yards of the property identified as Property No. B 5 Aruna Park Shakarpur Delhi which is a residential property. Initially vide order dated 23rd March 2012 the Trial Court granted leave to C.R.P. 51 2020 Court. defend to the tenant. Thereafter the matter proceeded before the Trial 4. Detailed evidence has been led on behalf of both the parties. Vide the final judgment dated 7th February 2020 the Trial Court has dismissed the petition on two primary grounds. First the suit property has been identified by the Petitioner to be located in Shakarpur whereas Shakarpur and Mandawali Fazalpur are two different localities. Hence the Petitioner has failed to prove the ownership of the suit property. Secondly the Trial Court has held that there is no landlord tenant relationship between the parties. The entire discussion on the evidence led before the Trial Court is in the following paragraphs of the impugned judgment dated 7th February 2020. “6. The documents of title of the predecessors in interest of the petitioner are Ex.PW 2 C Aruna Park Shakarpur Delhi 92. 6.2 Shakarpur and Mandawali Fazalpur are two different localities. Thus the petitioner fails to prove that the documents produced by him pertain to the premises. 7. There is no evidence on record to prove the landlord tenant relationship viz. rent agreement C.R.P. 51 2020 rent receipts any record of payment of rent by the respondent to the petitioner such as statement of bank account of the petitioner etc. Thus the existence of landlord tenant relationship between the petitioner and the respondent is not proved to the satisfaction of the court. 7.1 The Ld. Counsel for the petitioner had argued that the house tax in respect of the premises was paid for the petitioner. Payment of house tax by any person is no evidence of his ownership of the property in respect of which such tax is paid. 7.2 The witness PW 3 who is Section Officer with the MCD and who produced the house tax record deposed that the ledger folio no.65 291 was in respect of property B 5 Shakarpur Delhi and is in name of Mathali Ram. Whereas the document Ex.PW 1 A which is produced by the said witness purporting to be photocopy of pertinent ledger folio records the name of the assesse to be Madalli Ram. The original ledger was not produced by the said witness nor the documents on the basis on which the name of the assesse or and his relation with the property assessed was determined for the purposes of imposing tax liability of Madalli Ram was produced. The said witness fails and the document produced are of no probative value.” 5. Mr. Relan ld. Counsel for the Petitioner submits that the identity of the property was never in question in these proceedings. Reliance is placed upon a reply dated 28th May 2011 given by the Respondent No.1 to the legal notice dated 17th May 2011 issued by the Petitioner wherein the Respondent No.1 clearly claims ownership in the property located in Shakarpur Shahdara Delhi. According to Mr. Relan the Respondent No.1 C.R.P. 51 2020 never challenged the identity of the property in the said reply. Thus the Court could not have held that these are two separate properties and that the ownership thereof has not been proved by the Petitioner. He further submits that the Trial Court has clearly gone beyond the mandate of Section 14(1)(e) of the DRC Act itself. On the other hand Mr. Goel ld. Counsel for the Respondents submits that the documents which have been placed on record including the General Power of Attorneydescribes the seller Smt. Maya Devi from whom the Petitioner’s parents purchased the suit property as a resident of B 7 Aruna Park Shakarpur Delhi. However he submits that the sale is of the property in Mandawali Fazalpur Delhi. It is submitted that even the sale deed shows that the property which is being sold is at Mandawali Fazalpur and not Shakarpur. He further submits that Mandawali is 5 km away from Shakarpur. 7. This Court has perused the records. Firstly in the opinion of this Court the impugned judgment passed by the Trial Court is extremely cryptic. The same specifically records that several witnesses had deposed on behalf of the parties and a large number of documents were also exhibited. However there is no analysis of the evidence adduced by the parties at all. This Court is of the opinion that if there was a dispute as to the identity of the suit property the Trial Court ought to have discussed the evidence on record in order to arrive at the conclusion as to whether the two properties are the same or not. Secondly the Trial Court also arrives at the finding that there is no document to prove the existence of landlord tenant relationship between the parties. This finding as well has been recorded in merely five lines in C.R.P. 51 2020 parties. paragraph 7 of the impugned judgment extracted hereinabove without discussing the oral evidence or the evidence by way of affidavit filed by the 9. The Court has perused the GPA dated 10th December 1986 by which one Smt. Maya Devi had sold the property to the Petitioner’s parents. The same described Smt. Maya Devi as a resident of ‘B 7 Aruna Park Shakar Pur Delhi 110092’. In the recital identifying the property which has been sold it is clearly stated that the property is a residential house bearing ‘House no.7 measuring 75 Sq. Yards 22.5 feet x 30 feet out of Khasra No.477 situated at abadi of Aruna Park Block No. B in the village of Mandawali Fazalpur Village Shahdara Delhi’. 10. The property mentioned above can be easily described as B 7 Aruna Park Shakarpur. It cannot therefore be conclusively stated that the identity of these two properties i.e. the suit property and the property sold as per the sale deed are different. One has to bear in mind the fact that prior to urbanization of colonies in Delhi no proper plot numbers were allotted. Khasra numbers and area thereof were also quite blurred which is a fact of which judicial notice can be taken owing the various litigations that come before courts relating to Khasra numbers and identities of properties. 11. In the above context it is also relevant to point out that in the reply dated 28th May 2011 to the legal notice issued by the Petitioner the Respondent No.1 states and identifies the property very clearly as under: “That our client does not know a person namely Ram Kishan S o Late Sh. Mathali Ram R o 4879 Laddo Ghati Paharganj Delhi and it is also pertinent to mention here that the property No.B 5 Aruna Park Shakarpur Shahdara Delhi had been purchased by the wife of our client on 20.06.1988 from Sh. Manni Ram S o Sh. Ganna C.R.P. 51 2020 Nand Pant and since then our client has been residing at the above captioned property being the husband of the owner of the property namely Smt. Pushpa Devi W o Sh. Satya Vir and during this entire period no one raised any objection on the possession of our client and no such issue was ever arise as your client is trying to create problems in the peaceful and happy life of our client by sending this notice which is totally based on false frivolous and bogus facts which have no feet and have no value in the eyes of law before any court or any authority and the act of your client makes him liable for the damages. Parawise reply: 1. That the contents of para No.1 of your notice are wrong and denied. It is wrong and denied that the parents of your client Late Sh. Maithali Ram and his wife Late Smt. Devki Rani were property built on a plot measuring 75 sq. yds. Bearing No.7 out of Khasra No.477 at abadi Aruna Park Block B Village Mandawali Fazalpur Illaqa Shahdara Delhi which is known as B 5 Aruna Park Shakarpur Shahdara Delhi which they purchased vide title deeds dated 10.12.1986. It is submitted that the wife of our client namely Pushpa Devi purchased the property i.e. House No.B 5 Aruna Park Shakarpur Delhi on 20.06.1988 from Sh. Manni Ram S o Sh. Ganna Nand Pant and since then our client has been residing at the above captioned property. However it is submitted that the property No.B 5 Aruna Park Shakarpur Delhi previously known as Plot No.7 and the same was part of the Khasra No.477 in the abadi of Aruna Park Block B Village Mandawali Fazalpur Illaqa Shahdara Delhi. ” the owners landlords of C.R.P. 51 2020 12. The Trial Court would thus have to peruse the basis on which title has been claimed by the Petitioner as also on the basis of which the title has been claimed by the Respondent who is alleged to have purchased the property in 1988 from one Shri Manni Ram. The said GPA dated 20th June 1988 executed by Sh. Manni Ram in favour of Smt. Pushpa Devi refers to a sale deed dated 23rd September 1969 executed by Shri Nanak Singh S o Jhanda Ram. The same sale deed dated 23rd September 1969 is also relied upon by the Petitioner to trace back his title to Sh. Manni Ram. Thus the identity of the property does not appear to have been in issue in the eviction petition. These documents ought to be examined in detail by the Trial Court in order to arrive at a finding as to whether the Respondent No.1 has any right to retain the said property as also whether there is in fact any dispute as to the identity of the property at all. If there is no such dispute relating to the identity of the suit property the Trial Court shall proceed in the matter in accordance with law under Section 14(1)(e) of the DRC Act. 13. The impugned order is accordingly set aside and the matter is remanded back to the trial court. The Trial Court shall now hear the final arguments once again on the basis of the pleadings and the evidence on record and decide the matter within six months. Parties shall appear before the Trial Court on 2nd February 2022. 14. The present petition is allowed in the above terms. All pending applications are disposed of. JANUARY 12 2022 dk ad PRATHIBA M. SINGH C.R.P. 51 2020

A consent decree cannot be frustrated under Section 56 of the Contract Act: Delhi High Court

The doctrine of frustration of contract does not apply to a consent decree and that a decree remains binding on the parties till set aside. A compromise, even if a contract, once has the imprimatur of the Court, is a decree of the Court and to be enforced as a decree and not as a contract. Vide Section 56 of the Contract Act, a contract to do an act which, after the contract is made, becomes impossible, becomes void when the act becomes impossible or unlawful. This was held by Hon’ble Justice Rajiv Sahai Endlaw in the case of Sarabjit Singh Chadha Vs. Dinesh Sehgal [CS(OS) 610/2018] on the 11th of August 2021 before the Hon’ble High Court of Delhi at New Delhi. The brief facts of the case are, The present suit was filed, seeking recovery of Rs.5,98,40,000/- along with interest @ 10% per annum from the defendant/applicant. It was inter alia the case of the plaintiff/non-applicant, (i) that the plaintiff was a proprietor of M/s Jagat Overseas, which was closed in the year 2014 and the balances of which proprietorship firm were transferred to the personal account of the plaintiff which included closing stock of raw gold and gold/diamond jewellery weighing around 39,307.551 grams; (ii) that the plaintiff had been carrying on the business of gold and diamond for a very long period of time; (iii) that the defendant was also in the business of selling, making and designing of the plain gold jewellery; (iv) that the son of the plaintiff and the son of the defendant were friends and had also carried on many businesses together; (v) that in first week of September 2017, the son of the defendant approached the son of the plaintiff and made a business proposal that the defendant would offer services of making gold jewellery at a reasonable/lesser price than what was the prevailing rate in the market; (vi) that upon the son of the plaintiff not responding to the said offer, the defendant himself approached the plaintiff and offered to make gold jewellery for less than the market price prevailing at the time; (vii) that it was agreed, that the plaintiff would provide raw gold to the defendant for the job of making jewellery and thereafter a majority portion of the jewellery would be given back to the plaintiff and some items will be kept at the store of the defendant for display and sale and out of which the plaintiff would be entitled to a part of the profits and cost of his raw gold; (viii) that on 17th October, 2017, under cover of a voucher, the plaintiff handed over 20 Kg pure raw gold to the defendant, out of the stocks which the plaintiff had in his personal account after winding up of the business of M/s Jagat Overseas; (ix) that the said voucher was duly acknowledged by the defendant; (x) that the defendant also signed an order dated 17th October, 2017 bearing the complete list/description of the gold given by the plaintiff and the description of the jewellery to be made by the defendant; (xi) that the defendant also issued a receipt dated 17th October, 2017 whereby the defendant acknowledged receiving of 20 Kg of gold from the plaintiff; (xii) that the defendant also handed over a post-dated cheque dated 17th January, 2018 to the plaintiff for an amount of Rs.6 crores, as a performance guarantee; (xiii) that the defendant failed to deliver the jewellery/articles to the plaintiff within the agreed time; (xiv) that the cheque of the defendant was also dishonoured; and, (xv) that on complaint of the plaintiff, FIR No.85/2018 was also registered against the defendant. Accordingly, the suit for recovery of Rs.5,98,40,000/- came to be filed by the plaintiff. The defendant has filed this application, seeking setting aside of the consent decree dated 13th February, 2020 and consequently, restoration of the suit to its original position. The counsel for the defendant submitted that, that a compromise decree is nothing but an agreement between the parties and its validity needs to be tested as per the principles governing the validity of an agreement, as enshrined in the Indian Contract Act, 1872. It was also submitted that that the compromise agreement has become impossible to perform on account of reasons which the defendant/applicant could not prevent and has therefore become void. Furthermore, that the compromise between the parties, which was essentially a contract, has become void under Section 56 of the Contract Act. The leaned judge heard the submissions and observed that Order XXIII Rule 3 of the CPC does not mandate the Court to pass a decree and dispose of the suit in terms of any compromise between the parties. The Court is mandated to pass a decree only if finds the contract to be “lawful”. It is not the plea of the defendant/applicant that the contract in the present case was not lawful. The plea is, of the contract, after the making thereof, having been frustrated. The judge held that, “De hors the merits of the plea of frustration, I am unable to agree that a compromise decree can be said to have been frustrated. CPC being the codified law qua proceedings in a suit and in execution of decrees passed in such suit, is a self-contained code and does not provide for a lawful consent decree being frustrated. Thus, the very premise on which the application has been filed i.e. of a compromise decree, having its genesis in a contract, which is found to be lawful by the Court, can be frustrated owing to subsequent events, falls and has no legs to stand on.”

IN THE HIGH COURT OF DELHI AT NEW DELHI CS(OS) 610 2018 Date of decision: 11th August 2021 SARABJIT SINGH CHADHA Through None. .....Plaintiff DINESH SEHGAL ..... Defendant Through Mr. Aditya Wadhwa and Mr. Siddharth Sunil Advs. HON BLE MR. JUSTICE RAJIV SAHAI ENDLAW VIA VIDEO CONFERENCING] RAJIV SAHAI ENDLAW J. IA No.10043 2021& IA No.10044 2021 610 2018 so listed. I have heard the counsel for the defendant applicant. None appears for the plaintiff non applicant though the counsel for the defendant applicant on enquiry states that he had sent an advance copy. The present suit was filed seeking recovery of Rs.5 98 40 000 along with interest @ 10% per annum from the defendant applicant. It was inter alia the case of the plaintiff non applicant that the plaintiff was a proprietor of M s Jagat Overseas which was closed in the year 2014 and the balances of which proprietorship firm were transferred to the personal account of the plaintiff which included closing stock of raw gold and gold diamond jewellery weighing around 39 307.551 grams that the plaintiff had been carrying on the business of gold and diamond for a very long period of time that the defendant was also in the business of selling making and designing of the plain gold jewellery that the son of the plaintiff and the son of the defendant were friends and had also carried on many businesses together that in first week of September 2017 the son of the defendant approached the son of the plaintiff and made a business proposal that the defendant would offer services of making gold jewellery at a reasonable lesser price than what was the prevailing rate in the market that upon the son of the plaintiff not responding to the said offer the defendant himself approached the plaintiff and offered to make gold jewellery for less than the market price prevailing at the time that it was agreed that the plaintiff would provide raw gold to the defendant for the job of making jewellery and thereafter a majority portion of the jewellery would be given back to the plaintiff and some items will be kept CS(OS) 610 2018 at the store of the defendant for display and sale and out of which the plaintiff would be entitled to a part of the profits and cost of his raw gold viii) that on 17th October 2017 under cover of a voucher the plaintiff handed over 20 Kg pure raw gold to the defendant out of the stocks which the plaintiff had in his personal account after winding up of the business of M s Jagat Overseas that the said voucher was duly acknowledged by the defendant that the defendant also signed an order dated 17th October 2017 bearing the complete list description of the gold given by the plaintiff and the description of the jewellery to be made by the defendant xi) that the defendant also issued a receipt dated 17th October 2017 whereby the defendant acknowledged receiving of 20 Kg of gold from the plaintiff that the defendant also handed over a post dated cheque dated 17th January 2018 to the plaintiff for an amount of Rs.6 crores as a performance guarantee that the defendant failed to deliver the jewellery articles to the plaintiff within the agreed time that the cheque of the defendant was also dishonoured and that on complaint of the plaintiff FIR No.85 2018 was also registered against the defendant. Accordingly the suit for recovery of Rs.5 98 40 000 came to be filed by the plaintiff. On 16th September 2019 arguments on an application of the plaintiff non applicant under Order XII Rule 6 of the CPC for a decree forthwith in the suit were commenced but hearing was adjourned on request of the counsel for the defendant applicant and the matter posted on 17th September 2019 directing the personal presence of CS(OS) 610 2018 On 17th September 2019 the defendant applicant appeared before this Court and his statement on oath was recorded. The defendant applicant admitted his signatures on the documents of the plaintiff non applicant but stated that he had taken a loan of Rs.5 crores from the plaintiff non applicant and that he was paying interest @ 1.5% per month thereon to the plaintiff non applicant. It was further stated that the entire transaction was in cash and the defendant applicant though was an income tax assessee had not reflected the transaction including payment of interest thereon in his books of account. On 17th September 2017 on request of the counsel for the defendant applicant the matter was again adjourned. Thereafter on several dates the counsels took adjournments to settle the matter. Ultimately on 13th February 2020 the following order was passed: The plaintiff and the defendant in this suit for recovery of money since after 16th September 2019 when arguments were partly heard and since 17th September 2019 when the statement on oath of the defendant was recorded have been seeking time to settle the matter. The counsel for the plaintiff and the counsel for the defendant today state that a settlement has been arrived at and the counsel for the defendant states that the defendant is also personally present in the Court. It has been agreed that the defendant in full and final settlement of the claim of the plaintiff shall deliver to the plaintiff 15 Kg of 24 carat gold metal in 10 quarterly instalments of equal quantity with the first instalment being delivered on or before 30th June 2020. I have enquired from the counsels the form of the decree sought and the consequence of the default if any by the defendant in delivery of any of the instalments of gold metal. The counsels state that if there is any default the plaintiff shall be entitled to recover from the defendant the CS(OS) 610 2018 value as on that date of the balance gold due with the entire remaining quantity of gold being valued on the date of default and a decree for recovery of the said money shall be executed against the defendant with interest thereon from the date of default and till date of recovery @ 10% per annum. A decree is accordingly passed in favour of the plaintiff and against the defendant of delivery by the defendant to the plaintiff of 15 Kg of 24 carat gold in 10 quarterly instalments commencing from 30th June 2020 and the next instalment being due on 30th September 2020 and executable in the event of default as a money decree for the value as on the date of default of the entire remaining gold together with interest @ 10% per annum from the date of default till the date of realisation. The plaintiff through counsel also undertakes that the plaintiff will not precipitate action in FIR No.0085 2018 of Economic Offence Wing Delhi Police and the complaint under Section 138 of the Negotiable Instruments Act 1881 against the defendant and shall after delivery of three instalments of gold take steps for having the said FIR as well as the complaint under Section 138 of the Negotiable Instruments Act The parties are left to bear their own costs. Decree sheet be drawn up." and decree sheet drawn up. 10. The defendant applicant has now filed this application being IA No.10043 2021 pleading that a compromise decree is nothing but an agreement between the parties and its validity needs to be tested as per the principles governing the validity of an agreement as enshrined in the Indian Contract Act 1872(b) that the compromise arrived at between the parties and in terms whereof decree sheet was drawn up was void being in contravention to Section 29 and CS(OS) 610 2018 Section 56 of the Contract Act that alternatively it was voidable on account of contravention of Section 19 read with Sections 15 and 16 of the Contract Act that the plaintiff non applicant besides filing the suit aforesaid had also lodged an FIR under Section 406 and Section 420 of the Indian Penal Code 1860 against the defendant applicant that the defendant applicant was fearful of his safety and security that the compromise agreement has become impossible to perform on account of reasons which the defendant applicant could not prevent and has therefore become void that impracticability in performing a contract on account of an untoward event or change of circumstance which totally upsets the very foundation upon which the parties rest their bargain render a contract void under Section 56 of the Contract Act that though the defendant applicant had taken a cash loan from the plaintiff non applicant but was unable to return the same and owing to multiplicity of actions initiated by the plaintiff non applicant against the defendant applicant was fearing his safety and entered into the compromise aforesaid with the plaintiff non applicant that on 11th March 2020 novel Coronavirus 2019 was declared as a pandemic that on 24th March 2020 the Central Government announced a nationwide lockdown which remained in effect till 15th May 2020 that the defendant applicant who is a garment retailer had to shut operations and could open his outlet only on 1st June 2020 that owing to the pandemic the sales of the defendant applicant have drastically fallen that these changes in circumstances totally upset the very foundation upon which the parties had rested their bargain that the price of gold which on 13th February 2020 was Rs.4 076 per gram by 1st July 2020 rose by 30% to Rs.5 243.67 per gram that the parties had CS(OS) 610 2018 not contemplated such increase in prices that the contract between the parties in pursuance to which the decree is drawn is void for uncertainly as the parties failed to identify the mode and manner which was to be used to value the gold and that the plaintiff non applicant taking an arbitrary valuation of gold of Rs.5 243.67 per gram was now seeking to quantify the value of 15 Kg of gold at Rs.7 86 55 050 . 11. The only argument of the counsel for the defendant applicant is that the compromise between the parties which was essentially a contract has become void under Section 56 of the Contract Act. I have enquired from the counsel for the defendant applicant whether a contract compromise between the parties to a lis even after the Court putting its imprimatur thereon and the same becoming a decree remains voidable under Section 56 of the Contract Act. 13. The counsel for the defendant applicant states that though he is not aware of any direct judgment on this aspect but in Pushpa Devi Bhagat Vs. Rajinder Singh5 SCC 566 it has been held that "a consent decree is nothing but contract between parties superimposed with the seal of approval of the court". 14. A word here or there in a judgment cannot be picked up to draw inferences therefrom. A judgment of the Court is in the context of the facts for disposal before the Court and the words thereof are not to be treated as a precedent de hors the facts. Supreme Court in Pushpa Devi Bhagat supra was concerned with the question whether the compromise resulting in a consent decree in that case was not a valid compromise under Order XXIII Rule 3 of the CPC. It was in the said context that it was held that the CS(OS) 610 2018 only remedy available to a party to a consent decree to avoid such consent decree is to approach the Court which recorded the compromise and made a decree in terms thereof and establish that there was no compromise that in that event the Court which recorded the compromise will itself consider and decide the question as to whether there was a valid compromise or not this is so because a consent decree is nothing but a contract between parties superimposed with the seal of approval of the Court that the validity of a consent decree depends wholly on the validity of the agreement or compromise on which it is made and that the defendant in that case who was seeking setting aside of the consent decree by alleging that there was no compromise was fully aware of the position thereof. It would thus be seen that what was observed in Pushpa Devi Bhagat supra was in the context of making of the contract. The said judgment cannot be read as a precedent for the validity and executability of a consent decree being also governed by the Contract Act. 16. Order XXIII Rule 3 of the CPC does not mandate the Court to pass a decree and dispose of the suit in terms of any compromise between the parties. The Court is mandated to pass a decree only if finds the contract to be “lawful”. It is not the plea of the defendant applicant that the contract in the present case was not lawful. The plea is of the contract after the making thereof having been frustrated. 17. De hors the merits of the plea of frustration I am unable to agree that a compromise decree can be said to have been frustrated. CPC being the codified law qua proceedings in a suit and in execution of decrees passed in CS(OS) 610 2018 such suit is a self contained code and does not provide for a lawful consent decree being frustrated. Thus the very premise on which the application has been filed i.e. of a compromise decree having its genesis in a contract which is found to be lawful by the Court can be frustrated owing to subsequent events falls and has no legs to stand on. In Shankar Sitaram Sontakke Vs. Balkrishna Sitaram Sontakke AIR 1954 SC 352 though earlier a family comprising of six brothers was living and messing together and the income of the family used to be kept with one brother but subsequently the situation changed and each of the brother began to appropriate the proceeds of the various businesses carried on by them separately to themselves in a suit for partition of all joint properties including all the businesses a compromise was arrived at declaring that the various accounts of businesses had been correctly maintained till a certain date and providing for appointment of arbitrators for examining accounts for the subsequent period and of division of all the joint assets equally between the six brothers. However one of the brothers filed another suit seeking accounts of a business being carried on by two other brothers claiming that the comprise in the earlier suit was made in a hurry and that the parties had omitted to provide in the compromise about the future conduct of the said business carried on by other two brothers and claiming the said business to have remained joint between the parties. Supreme Court held that the compromise arrived at in the earlier suit closed once and for all the controversy about taking any account of the joint family businesses including the business of which account was sought ii) that the second suit was barred by principles of res judicata and the brother who had brought the second suit was barred from re agitating the CS(OS) 610 2018 question a consent is as binding upon the parties thereto as a decree passed invitum and the compromise having been found not to be vitiated by fraud misrepresentation misunderstanding or mistake the decree passed thereon had the binding force of res judicata. A Division Bench of the High Court of Calcutta in Rani Pravabati Roy Vs. Saileshnath Roy AIR 1978 Cal 147 was concerned with the plea that one of the properties subject matter of the settlement compromise decree being no longer available as the same vested in the State and no income or benefit had been obtained from the said property whether the execution of the compromise decree was not maintainable and whether there had been a frustration of contract subject matter of the consent decree. It was held that the doctrine of frustration of contract does not apply to a consent decree and that a decree remains binding on the parties till set aside. It was further held that once a Court puts its seal of approval of the comprise arrived at between the parties it ceases to be a contract simplicitor and becomes binding upon the parties to it. Reliance was placed on Shankar Sitaram Sontakke supra. I respectfully concur with the view aforesaid of the Calcutta High Court. A compromise even if a contract once has the imprimatur of the Court is a decree of the Court and to be enforced as a decree and not as a contract. In Tomorrow Land Technologies Exports Limited Vs. HUDCO MANU DE 3271 2018 I was concerned with an application for recall of a consent order pleading subsequent events. Relying upon Shankar Sitaram Sontakke supra it was held that once the compromise had been arrived at between the parties the parties could not be permitted to re open the same that in passing the decree by consent the Court adds its mandate to the CS(OS) 610 2018 decree. falls. consent that by passing a decree in terms of a consent order the Court authorises and approves the course of action consented to and that the consent decrees are also executable. It was further held that once a decree is passed by the Court the Court become functus offcio to modify the I thus hold that a consent decree cannot be frustrated under Section 56 of the Contract Act and the edifice on which this application is filed 21. Vide Section 56 of the Contract Act a contract to do an act which after the contract is made becomes impossible becomes void when the act impossible or unlawful. It is neither the case of defendant applicant in the application that compliance of the decree by the defendant applicant has become impossible or unlawful. The only thing which is pleaded is the economic constraints of the defendant applicant owing whereto the defendant applicant is unable to comply with the decree and or owing whereto the value under the decree has multiplied. 22. Gold has not only been a standard of measure of inflation but also the measure by which the worth in the world of countries is assessed computed. The worth of the countries is measured by their gold reserves and it is not as if the phenomenal rise in the value of gold as pleaded has taken place now for the first time. Gold has been appreciating for a number of years since much before the date of the decree. It thus cannot be said that there has been unforeseen increase in the value of the gold. Merely because the defendant applicant may be unable to comply with the decree also does not fall in the category of “impossibility’ envisioned under Section 56 of the CS(OS) 610 2018 Contract Act. 23. Thus neither is any foundation laid in law for the ground on which the decree is sought to be voided nor that ground is even otherwise made It cannot be lost sight of that the claim of the plaintiff non applicant and admitted by the defendant applicant was of the monies for recovery of which the suit was filed being due from the defendant applicant to the plaintiff non applicant towards the value of the gold handed over by the plaintiff non applicant to the defendant applicant for job work. There was thus nothing unusual in the parties in the compromise agreeing to the defendant applicant returning plaintiff non applicant. As a reading of the order dated 13th February 2020 the agreed quantity of gold shows the parties before the Court had only sought recording of the compromise arrived at between them of delivery by the defendant applicant to the plaintiff non applicant of 15 Kg of 24 carat gold in ten quarterly instalments of equal quantity with the first instalment being delivered on or before 30th June 2020. It was only on the asking of the Court that it was agreed that in the event of any default the plaintiff non applicant shall be entitled to recover from the defendant applicant the value of the gold balance gold as on that date. I have enquired from the counsel for the defendant applicant that even if there was any unforeseen increase in value of gold why the defendant applicant did not tender deposit the money value of gold prior to such increase in full and final satisfaction of the decree. The same would have stopped the clock from running and save the defendant applicant from CS(OS) 610 2018 further increase in prices of gold. 26. No answer is forthcoming. It is thus quite evident that the Court had passed the decree in terms of the compromise after being fully satisfied of the lawfulness of the compromise arrived at between the parties. 28. The application is thoroughly misconceived and is dismissed. AUGUST 11 2021 bs .. RAJIV SAHAI ENDLAW J. CS(OS) 610 2018

The Court has no power under Article 226 to check whether academic qualification certificates are in consonance with the recruitment rules: Jammu and Kashmir High Court

In a situation where the academic qualification certificate is questioned by the selection/ appointing authority from the very existence and supported by the certificates of the Board of Technical Education, the learned Writ Court was required, for doing the substantial justice, to evolve a mechanism by virtue of which the genuineness of the certificates could have been ascertained by referring the matter to the Committee consisting of members from the concerned field. This was said in the case of J&K Service Selection Board V/s Ashiq Hussain Shah and others [CM no. 955/2020] by Mr Justice Ali Mohammad Magrey and Mr Justice Vinod Chatterji Koul in the High Court of Jammu and Kashmir The facts of the case date back to 17.08.2019 when the Writ Court passed an order allowing the writ petition, filed by the respondents. Assailing the order of the Writ Court, the appellants filed an intra Court appeal. The appellants contended that the impugned judgment is bad in law as the stand of the respondents has not been appreciated by the Writ Court. Secondly, it was contended that the conclusion arrived at by the Writ Court is incorrect as the same was solely based on the registration of the Institution when the dispute was entirely on the certificates in possession of the petitioners. It was further contended that the plea raised by the respondents/ petitioners before the Writ court that the verification report was submitted by the Board of Technical Education mechanically is nullified by the fact that even after the passing of the impugned judgment the Board reiterated its stand and went further on to add that neither their examinations have been conducted nor any certificate has been issued in this behalf. The respondents contended that the impugned judgment is quite in consonance with law and the respondents have been discriminated by the appellants in the selection process in question as the candidates, who had obtained the certificates from the same Institution as that of the petitioners, have been considered which amounts to violation of fundamental rights of the petitioners guaranteed by the Constitution. After perusing the findings of the Writ Court, the judges opined that “impugned judgment is bereft of reasons, material and the law. Merely because the institute which has, allegedly, issued the certificates in question, is a recognized Institute to impart training vis-à-vis certain trades including the one allegedly possessed by the respondents, does not ipso facto mean that the certificates produced on its name, without actually having been issued by it, are also genuine”. Furthermore, it was said that the “court has no mechanism/ expertise available to check the veracity of the certificate that meets the requirements of the recruitment rules. The question that requires an answer, in the circumstances, would be as to whether the certificates in question are forged having been managed by the respondents of their own without having appeared in any examination in this behalf? To have the question answered the matter is required to be looked into by the Committee of the concerned field who will examine the said issue and frame their opinion accordingly”. Hence, the appeal was accepted and the impugned judgment was set aside.

LPA no. 36 2020 HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR LPA no. 36 2020 CM no. 955 2020 Reserved on 19.04.2021 Pronounced on 23.04.2021 J&K Service Selection Board …. Appellant(s) Through: Mr Mir Suhail AAG Mr Sajjad Ashraf GA V s Ashiq Hussain Shah and others … Respondent(s) Through: Mr S. A. Naik Advocate Mr M. A. Chashoo AAG CORAM: Hon’ble Mr Justice Ali Mohammad Magrey Judge Hon’ble Mr Justice Vinod Chatterji Koul Judge JUDGMENT Per Magrey J 01 This intra Court Appeal for short appeal is directed against the judgment final order passed in writ petition SWP no. 1997 2011 on 17.08.2019 for short impugned judgment whereby the writ petition filed by the respondents has been allowed. 02 The brief resume of the events that led to the filing of this appeal are taken note of in the first instance thus: 03 The respondents are stated to have applied under a reserved category for the post of Draftsman Civilpursuant to an advertisement notice issued in this behalf by the appellants and were subsequently shortlisted also. Subsequent thereto the respondents have been called for the interview and based on their performance in the interview they were expecting selection and appointment against the post in question. However the provisional list issued by the respondents reflected the name of one candidate from Reasi of Jammu Province having been selected for the post of Draftsman Civil Divisional Cadre Kashmir against the advertised 213 such posts. LPA no. 36 2020 04 Feeling aggrieved the petitioners filed a representation before respondent no. 2 seeking reasons of their exclusion from the select list and the petitioners were informed that respondents are not bound to appoint them despite posts being available. The petitioners felt constrained to file a writ petition SWP no. 951 2010 which upon consideration by the writ court was disposed of on 24.12.2010 in the following terms: “In view of these facts I find the petition can be and is disposed of at this very stage without objections from the other side with the direction to the Service Selection Board to consider the case of the petitioners on the basis of certificates issued by the Director Technical Education and pass appropriate orders if the petitioners fulfill the requisite qualification eligibility they be selected appointed against the posts available.” 05 It is further stated in the writ petition that the petitioners subsequently filed a review petition seeking rectification of error inasmuch as the order mentioned in the order 24.12.2010 that the case of the petitioners be considered on the basis of certificates issued by the Director Technical Education instead of mentioning that case be considered on the basis of certificates issued by the concerned institution recognized by the Director Technical Education. The review petition was allowed by the court in terms of order dated 10.2.2011 and the error so pointed out was rectified. 06 Subsequent thereto the petitioners are stated to have filed a contempt petition bearing no. 193 2011 wherein the respondents appeared and filed their statement of facts compliance stating therein that the Director Technical Education informed the SSRB that four trades of Kissan Institute of Technology including Draftsmanare affiliated with the National Council of Vocational Trainings. Furthermore it is stated to have been pleaded by the respondents in the statement of facts compliance report that the Secretary State Board of Technical Education J&K Jammu informed the SSRB that the certificates of the petitioners are not genuine therefore on the said information the claim of the petitioners has been rejected in terms of order dated 08.06.2011 on the ground that they did not fulfill the requisite condition of eligibility for the post of DraftsmanBy issuance of writ of certiorari the impugned Communication bearing No. SBOTE Verification 21011 1412 dated 18.01.2011 issued by respondent No. 3 and Order No. 101 SSB of 2011 dated 08.06.2011 issued by respondent no. 2 are quashed. ii) By writ of mandamus respondents are directed to make further follow up in pursuance to the shortlisting of the candidates made for filing of posts of Draftsman Category RBA and to treat the trade certificates issued by Kissan Institute of Technology R.S. Pora Jammu as ‘genuine’ for filing up of the post of Draftsman Civil. Respondents are further directed to prepare the selection list and to make appointment accordingly of all the petitioners for the posts for which they had applied.” 09 Feeling aggrieved of the impugned judgment the appellants have filed the instant appeal seeking setting aside of the impugned judgment inter alia on the grounds that impugned judgment did not appreciate the stand taken by the Board in the reply affidavit the controversy has not been appreciated in its right perspective as the writ court passed in the impugned judgment has only taken note of the fact that the Institute from where the petitioners are stated to have obtained the certificates in question is a registered Institute without mentioning anything about the genuineness of the certificates itself as the dispute is not in regard to the LPA no. 36 2020 recognition of the institute from where the certificates have been obtained but of the certificates itself that no discrimination is meted out to petitioners as has been held by the writ court as the petitioners’ cannot seek equality with those who are having valid certificates that the appellants being recruiting agency only rejected the candidature of the petitioners on the basis of the letter no. SBO TE verification 2011 1412 dated 18.01.2011 issued by the State Board of Technical Education certifying therein that the certificates of nine candidates including the petitioners are not genuine that the appellants even after passing of the impugned judgment took up the matter with the J&K State Board of Technical Education to ascertain as to whether the certificates in question have been issued to the petitioners by the competent authority and the State Board of Technical Education in terms of communication No. SBOTE Verify 2019 941 dated 27.11.2019 intimated the appellants that neither the examinations of the petitioners have been conducted nor any certificate issued in this behalf by the said Board the impugned judgment is ex facie contrary to the law and facts of the case. 10 We have heard learned counsel for the parties. 11 Mr Mir Suhail AAG submits that the impugned judgment is bad in law as the stand of the respondents has not been appreciated by the Writ Court. He further submits that the conclusion arrived at by the Writ Court is incorrect as the same was solely based on the registration of the Institution when the dispute was entirely on the certificates in possession of the petitioners. 12 Learned Additional Advocate General further submits that the plea raised by the respondents petitioners before the Writ court that the verification report was submitted by the Board of Technical Education mechanically is nullified by the fact that even after the passing of the impugned judgment the Board reiterated its stand and went further on to add that neither their examinations have been conducted nor any certificate has been issued in this behalf. 13 He further submits that in view of the clear stand taken by the Board of Technical Education that certificates in possession of the petitioners and relied upon by them are fake the directions issued by the Writ Court in terms of impugned judgment cannot withstand the test of law. 14 The learned Additional Advocate General therefore prays that the appeal be accepted and the impugned judgment be set aside and the writ petition of the petitioners respondents be also dismissed. 15 On the other hand Mr S. A. Naik learned counsel for the respondents submits that the Writ Court has appreciated the controversy in its right perspective LPA no. 36 2020 and the impugned judgment is quite in consonance with law. He submits that the respondents have been discriminated by the appellants in the selection process in question as the candidates who had obtained the certificates from the same Institution as that of the petitioners have been considered which amounts to violation of fundamental rights of the petitioners guaranteed by the Constitution. 16 He therefore prays for the dismissal of appeal. 17 Considered the submissions made. 18 The finding recorded by the Writ Court holding the respondents petitioners therein entitled for the relief granted in terms of the impugned judgment is bereft of reasons material and the law. Merely because the Kissan Institute of Technology R.S. Pora Jammu which has allegedly issued the certificates in question is a recognized Institute to impart training vis à vis certain trades including the one allegedly possessed by the respondents does not ipso facto mean that the certificates produced on its name without actually having been issued by it are also genuine. 19 The findings recorded in paragraph no. 13 of the impugned judgment by the Writ Court is beyond the scope of the powers of the court under Article 226 of the Constitution of India as court has no mechanism expertise available to check the veracity of the certificate that meets the requirements of the recruitment rules. In a situation where the academic qualification certificate is questioned by the selection appointing authority from the very existence and supported by the certificates of the Board of Technical Education the learned Writ Court was required for doing the substantial justice to evolve a mechanism by virtue of which the genuineness of the certificates could have been ascertained by referring the matter to the Committee consisting of members from the concerned field if at all it was convinced that the genuineness of the certificates has been casually reported. 20 The question that requires an answer in the circumstances would be as to whether the certificates in question are forged having been managed by the respondents of their own without having appeared in any examination in this behalf To have the question answered the matter is required to be looked into by the Committee of the concerned field who will examine the said issue and frame their opinion accordingly. LPA no. 36 2020 21 In the above background in acceptance of the appeal the impugned judgment is set aside and the writ petition of the respondents petitioners is disposed of in the following manner: i) The Commissioner Secretary to the Government PWD department shall constitute a committee of the officers from the State Board of Technical Education Directorate of Technical Education and the Service Selection Recruitment Board. The needful shall be done within one week from today. ii) The Secretary J&K Service Selection Board Director Technical Education and Secretary State Board of Technical Education shall examine the claim of the petitioners on the strength of the certificates in question. While undertaking such exercise the Committee shall also hear the respondents petitioners in person who shall be at liberty to produce all the documents in support of their claim. iii) In the event the Committee comes to the conclusion that the certificates in question are genuine and meets the requirement of State Board of Technical Education they shall be entitled to the relief claimed in the writ petition. The report shall be submitted to the SSB and Government for doing the needful. However if it comes to the fore that the certificates in question are actually not genuine and they have not appeared in any examination in this behalf therefore do not meet the requirement of the State Board of Technical Education the matter shall be deemed to be closed with the report of the Committee on such lines. 22 Copy of the judgment be furnished to the learned counsel for the parties under the seal and signatures of Bench Secretary of the Court. 23 Disposed of on the above lines. Srinagar 23.04.2021 Amjad Lone PS Whether approved for reporting: Yes.

If any person indulges in unfair trade practices relating to securities, the monetary penalty should be imposed under 15HA of SEBI act -THE SECURITIES AND EXCHANGE BOARD OF INDIA

If any person indulges in unfair trade practices relating to securities, the monetary penalty should be imposed under 15HA of SEBI act -THE SECURITIES AND EXCHANGE BOARD OF INDIA SEBI observed some large-scale trade reversals in the stocks segment and pursuing further investigation it was found that total 2,91,744 trades comprising substantial 81.40% of all the trades were non genuine and these trades lead to creation of artificial volumes. During investigation Kasturi Aich (“Noticee”) was found indulged in execution of reversal trades in stock options segment of BSE. Adjudication proceedings initiated against the noticee for violation of Regulations 3(a), (b), (c), (d), 4(1) and 4(2)(a) of SEBI regulation,2003. The proceeding was conducted by appointed adjudicating officer BARNALI MUKHERJEE in [ADJUDICATION ORDER NO. Order/BM/UR/2021-22/14819] A show cause notice was issued as to show why penalty should not be imposed under section 15HA of the SEBI Act, 1992 for the alleged violations in the notice it was alleged that Noticee had executed 2 non genuine trades in 1 Stock Options contract which resulted in artificial volume of total 50,000 units. And the investigation was conducted in response of the noticee response. The proceedings were conducted, and it was found that the Noticee had executed non-genuine trades in stock options contract to total trades in the contract was 6.67% in the aforesaid contract and from the trade log it was found that the trades executed by the Noticee in a contract were squared up within a short span of time and the wide variations in the trades indicates that there was pre-determination in the prices by the counterparties while executing the trades. The authority relied on SEBI vs. Rakhi Trading Private Ltd to consider that the trades were not coincidental but were pre-planned. From the investigation and from the trading behavior of the noticee confirms that the noticee has violated   regulations 3(a), (b), (c), (d), 4(1) and 4(2)(a) of PFUTP Regulations, 2003 and the authority confirmed the imposition of monetary penalty of ₹ 5,00,000/-under the provisions of Section 15 HA of SEBI Act.

BEFORE THE ADJUDICATING OFFICER SECURITIES AND EXCHANGE BOARD OF INDIA ADJUDICATION ORDER NO. Order BM UR 2021 22 14819] UNDER SECTION 15 I OF SECURITIES AND EXCHANGE BOARD OF INDIA ACT 1992 READ WITH RULE 5 OF SEBIRULES 1995. In respect of Kasturi Aich PAN: ACCPA1896N) In the matter of Trading in Illiquid Stock Options on BSE BACKGROUND OF THE CASE 1. Securities and Exchange Board of India observed large scale reversal of trades in stock options segment of Bombay Stock Exchange (hereinafter referred to as the “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 or misleading appearance of trading in terms of artificial volumes in stock options 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) (c) 4(1) and 4(2)(a) of SEBI Prohibition of Fraudulent and Unfair Trade Practices) Regulations 2003 hereinafter referred to as “PFUTP Regulations 2003”). APPOINTMENT OF ADJUDICATING OFFICER The undersigned was appointed as Adjudicating Officer in the matter conveyed vide communique dated September 27 2021 under Section 19 read with Section 15 I(1) of the Securities and Exchange Board of India Act 1992 hereinafter referred to as “SEBI Act 1992”) and Rule 3 of SEBIRules 1995to conduct adjudication proceedings in the manner specified under Rule 4 of Adjudication Rules read with Section 15 I(1) andof SEBI Act 1992 and if satisfied that penalty is liable impose such penalty as deemed fit in terms of Rule 5 of Adjudication Rules and Section 15HA of SEBI Act 1992. SHOW CAUSE NOTICE REPLY AND HEARING 4. A Show Cause Notice dated October 21 2021was 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 her and why penalty should not be imposed under section 15HA of the SEBI Act 1992 for the violations alleged to have been committed by Noticee. It was inter alia alleged in the SCN that the Noticee had executed 2 non genuine trades in 1 Stock Options contract which resulted in artificial volume of total 50 000 units. Summary of dealings of the Noticee in the said Options contracts in which the Noticee allegedly executed non genuine trades during the I.P is as Contract No. of No. of of of Non of trades of in the Noticee in in the Noticee s to Total Noticee s trades in in the Volume in of by Noticee in the to Total Volume in VEDL15MAY250.00PE 35 25000 55.45 From the above table following was noted as regard to dealings of the Noticee: a) The Noticee had executed non genuine trades in 1 contract wherein 100% of all trades of Noticee in the said contract were non genuine b) No. of non genuine trades of the Noticee had significantly contributed to total no. of trades from the market in the above contract as 6.67% of the trades that happened in the said contract were due to non genuine trades executed by the Noticee. c) 100% of volume generated by Noticee in the above contract was artificial volume and further the percentage of artificial volume generated by the Noticee in the above contract to the total volume from the market in said contract was 10.31%. Therefore the Noticee allegedly generated artificial volume in the above contract. The SCN with reference no. EAD 3 BM UR ISO II 29382 2021 was served on the Noticee via Speed Post Acknowledgement Dueand via email dated October 21 2021. The proof of service is on record. Vide email dated November 30 2021 Noticee submitted reply to the SCN and vide email dated December 21 2021 Noticee through her Authorized Representative submitted additional submissions pursuant to hearing. The main contentions made in the aforesaid reply are summarized below: She executed trades which were purely speculative trades that were carried out by her broker. Noticee contended that it is purely coincidental that the counterparty was the same for both legs and emphasized that she has no dealings with the counterparty in this regard. She also submitted that she has no clue of the counterparty in the trade. Noticee contended that if any such contract were illiquid and were not supposed to be traded then the onus was on the BSE exchange and the broker to restrict the clients through adequate surveillance measures in their system. She has also filed Income tax return for all the tranactions carried out in the said Financial year. 8. Hearing Notice dated November 30 2021 was issued to the Noticee advising her to appear for the hearing on December 15 2021. The personal hearing was conducted on scheduled date and time through video conferencing. The Noticee was represented by her Authorized Representative. During the course of hearing the authorized representative reiterated submissions made by her vide email dated November 30 2021. He also made additional submissions on behalf of the Noticee vide email dated December 21 2021. The personal hearing in the matter was completed and hearing minutes are on record. CONSIDERATION OF ISSUES AND FINDINGS I have carefully perused the charges levelled against the Noticee her reply and the documents material available on record. The issues that arise for consideration in the present case are: a) Whether the Noticee has violated provisions of Regulations 3(a) (c) d) 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 1992 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 1992 10. Before proceeding further I would like to refer to the relevant provisions of the PFUTP Regulations 2003 as below: 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 d) 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 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 fraudulent or an unfair trade practice if it involves fraud and may include all or any of the following namely:— a) indulging in an act which creates false or misleading appearance of trading in the securities market 2003 Issue No 1 : Whether the Noticee has violated provisions of Regulations 3(a) (c) and Regulation 4(1) & 4(2)(a) of PFUTP Regulations I note that allegation against the Noticee is that while dealing in the stock option contracts at BSE during the IP she had executed reversal trades which were allegedly non genuine and the same had resulted in generation of artificial volume in stock option contracts at BSE. Reversal trades are considered to be 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 trades 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. I shall now proceed to deal with the transactions executed by the Noticee in the alleged non genuine trades. 13. I note from the trade log of the Noticee that she had traded in one contract in the stock options segment of BSE during the IP. 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 creation of artificial volume of 50000 units in the said contract. Summary of non genuine trades of the Noticee is as follows: Contract Name No. of trades of Noticee in the contract No. of to Noticee s Total trades of Non in the of of of Non trades of by Noticee in the in the Noticee in contract to to Total Noticee s trades in to Total Volume in Volume in VEDL15MAY250.00PE 35 25000 55.45 25000 100 I further note that pursuant to a preliminary examination conducted in the Illiquid Stock Options matter interim order was passed by SEBI on August 20 2015 which was confirmed vide Orders dated July 30 2016 and August 22 2016. Meanwhile SEBI initiated a detailed investigation relating to stock options segment of BSE which was completed in the year 2018. The investigation revealed that 14 720 entities were involved in executing non genuine trades in BSE’s stock option segment during the investigation period. The proceedings initiated vide the aforementioned Interim Order were disposed of vide Final Order dated April 05 2018 also considering that appropriate action was initiated against the said 14 720 entities in a phased manner. During the course of hearing in the case of R. S. Ispat Ltd Vs SEBI the Hon’ble Securities Appellate Tribunalvide its Order dated October 14 2019 inter alia observed that: “SEBI may consider holding a Lok Adalat or adopting any other alternative dispute resolution process with regard to the Illiquid Stock Options”. A Settlement Scheme was framed under the SEBI Regulations 2018 which provided one time opportunity for settlement of proceedings in the Illiquid Stock Options matter. The said scheme was kept open from August 01 2020 till December 31 2020. Subsequently adjudication proceedings were initiated against those entities who had not availed of the opportunity of settlement. As can be seen from the narration of facts in the foregoing paragraphs pursuant to appointment of AO in the matter conveyed vide communique dated September 27 2021 SCN was issued on October 21 2021. In compliance with principles of natural justice after receipt of reply an opportunity of personal hearing was scheduled on December 15 2021 and upon conclusion of hearing additional written submissions were received from the Noticee on December 21 15. It is noted that the Noticee had executed non genuine trades in said contract wherein the percentage of non genuine trades of the Noticee in stock options contract to total trades in the contract was 6.67% in the aforesaid contract. Further the alleged artificial volume generated by Noticee in the contract amounted to 100% of total volume generated by her in the contract. It is also noted that artificial volume generated by the Noticee contributed 10.31% of the total volume from the market in the said contract. 16. The details of squaring up done by the Noticee the contract ‘VEDL15MAY250.00PE’ are as given below : Trade Date CP Client l by the Kasturi Aich Ajeit P.S 35 25000 Rajbans Huf Kasturi Aich 55.45 25000 Ajeit P.S Rajbans Huf I note from the trade log that the trades executed by the Noticee in a contract were squared up within a short span of time with her counterparties. To illustrate the Noticee on May 28 2015 entered into 1 buy trade of 25000 units of contract “VEDL15MAY250.00PE’” at 13:04:13 hrsat the rate of Rs 35 per unit with counterparty viz. Ajeit P.S Rajbans Huf. Thereafter on the same day Noticee at 13:11:48 hrs Order time of Noticee: 13:11:48 and Counterparty Order time: 13:11:48) entered into 1 sell trade with same counterparty for 25000 units at the rate of Rs. 55.45 per unit in the same contract. It is noted that while dealing in the said contract during the I.P. the Noticee executed reversal trades with same counterparty viz. Ajeit P.S Rajbans Huf on the same day. Thus the Noticee through her dealing in the contract viz. ‘VEDL15MAY250.00PE’ during the I.P. executed non genuine trades which was 6.67% of the total trades from the market in the said contract during the I.P. and thereby Noticee generated artificial volume of 50000 units which was 10.31% of the volume traded in the said contract from the market during the I.P. I note that the abovementioned trades of the Noticee had resulted in the creation of artificial volume of a total of 50 000 units in the given contract. 16. The non genuineness of these transactions executed by the Noticee is evident from the fact that there was no commercial basis as to why within a short span of time the Noticee reversed the position with her counterparty with significant price difference. The fact that the transactions in a particular contract were reversed with the same counterparty indicates a prior meeting of minds with a view to execute the reversal trades at a pre determined price. Since these trades were done in illiquid option contract there was negligible trading in the said contract and hence there was no price discovery in the strictest terms. There was no significant change in the price of the underlying scrip to justify the wide variation in prices of the said contracts. The wide variation in prices of the said contracts within such a short span of time is a clear indication that there was pre determination in the prices by the counterparties while executing the trades. Thus it is observed that Noticee had indulged in reversal trades with the counterparties in the stock options segment of BSE and the same were non genuine trades. 17. Noticee has interalia contended she executed trades which were purely speculative trades that were carried out by her broker. I note that Noticee was owner of the trading account through which impugned trades were carried out. Therefore the obligation to ensure genuineness of impugned trades lay with the Noticee and thus the aforesaid contentions of Noticee are without merits. 18. Noticee contended that it is purely coincidental that the counterparty was the same for both legs and emphasized that she has no dealings with the counterparty in this regard. She also submitted that she had no clue of the counterparty in the trade. I note that considering the precision at which the reversal transactions have taken place i.e. synchronisation of the quantity order price and order time and sale with price variations as observed in the instant matter the same couldn’t have been possible without prior meeting of mind In this regard I find it relevant to refer to the decision of Hon’ble Supreme Court in the matter of SEBI vs. Rakhi Trading Private Ltd. in Civil appeals no. 1969 of 2011 decided on February 8 2018 wherein it has been held as under “considering the reversal transactions quantity price and time and sale parties being persistent in the number of such trade transactions with huge price variations it will be too naïve 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 deceptive device to create a desired loss and or profit. Such synchronized trading is violative of transparent norms of trading in securities” 18(a).The Hon’ble Supreme Court has also held in the aforesaid Judgment that the price discovery system itself was affected by synchronization and rapid reverse trade which also had the impact of excluding other investors from participating in the market. The Supreme Court therefore found that the traders having engaged in a fraudulent and unfair trade practice while dealing in securities are hence liable to be proceeded against for violation of Regulations 3(a) 4(1) and 4(2)(a) of the PFUTP Regulations 2003. 18(b).The Hon’ble SAT in its judgment dated September 14 2020 in the matter of Global Earth Properties and Developers Pvt Ltd Vs SEBIalso relied 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 18(c).The Hon’ble SAT reaffirmed its stand taken in Global Earth Properties and Developers Pvt Ltd Vs SEBIin itsjudgment dated November 24 2021 in the matter of Radha Malani vs. SEBIhas held the following: “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. SEBIwith the same counterparty with whom Noticee had undertaken first leg of the respective trades. It indicates meeting of minds. In this context I would 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...” 18(f).The Hon’ble Supreme Court further held in the said case 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.” 18(g).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 deem it appropriate to refer to the order dated July 14 2006 passed by Hon’ble SAT in the case of Ketan Parekh vs. SEBIwherein 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." 18(h).Further I would like to rely on the judgement of Hon’ble Supreme Court passed in the case of SEBI vs. Rakhi Trading Private Ltd. wherein the Apex Court held that “the entities were engaged in a fraudulent and unfair trade practice while dealing in Options and hence were liable for violation of SEBI Regulations”. The Hon’ble Apex Court has also held that in the absence of direct proof of meeting of minds the test should be one of preponderance of probability and also stated that the conclusion has to be gathered from various circumstances like volume of trade period of persistence of trading particulars of buy and sell orders proximity of time between the two and such other relevant factors. 18(i).In line with the aforesaid judgements of Hon’ble SAT and Hon’ble Supreme Court I note from the foregoing findings that the trading pattern of the Noticee in terms of volume of reversal trades proximity of buy sell and subsequent reversal evidences the indulgence of the Noticee beyond a reasonable doubt of the manipulative intent in creation of artificial volume. Further the dealings by Noticee only in such options contracts which was illiquid clearly demonstrates the manipulative intent to use stock exchange platform to carry out non genuine trades with the aim to execute such trades for manipulative 18(j).In this regard I would like to rely on the judgement of Hon’ble Supreme Court in the matter of SEBI vs. Rakhi Trading Private Ltd.(supra) decided on February 8 2018 where Apex Court held that “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.” 19. Noticee contended that if any such contract were illiquid and were not supposed to be traded then the onus was on the BSE exchange and the broker to restrict the clients through adequate surveillance measures in their system. I note that the Noticee’s contentions imply that there is no dispute that the impugned trades were definitely executed by the Noticee. I note that Noticee was obligated to ensure genuineness of the trades executed by him on the exchange platform. The aforesaid obligation was mandatory notwithstanding any surveillance measures to be undertaken by BSE or broker. The Noticee’s contention reveals that she had executed the impugned trades which generated artificial volume as demonstrated by the trade log. Thus the Noticee’s contentions do not establish any denial of the charges made in the SCN. 20. She contended that she has also filed Income tax return for all the transactions carried out in the said financial year. I note from the above that the said transactions are not in question but genuineness of trades is in question. Thus the contention of notice is not maintainable. 21. Therefore the trading behaviour of the Noticee confirms that such trades were not normal indicating that the trades executed by the Noticee were not genuine trades and being non genuine created an appearance of artificial trading volumes in respective contracts. In view of the above I find that the allegation of violation of regulations 3(a) (c) 4(1) and 4(2)(a) of PFUTP Regulations 2003 by the Noticee stands established. Issue No 2: Does the violation if any attract monetary penalty under Section 15HA of the SEBI Act 1992 22. Considering the findings that the Noticee as mentioned above has executed non genuine trades resulting in the creation of artificial volume thereby violating the provisions of Regulation 3(a) (c) && Regulation 4(1) and 4(2)(a) of the PFUTP Regulations 2003 and in terms of the judgement of Hon’ble Supreme Court of India in the matter of SEBI Vs. Shri RAM Mutual Fund[2006] 68 SCL 216(SC) decided on May 23 2006 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...” I am convinced that it is a fit case for imposition of monetary penalty under the provisions of Section 15 HA of SEBI Act which reads as under: 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. Issue 3: 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 1992 23. While determining the quantum of penalty under Section 15HA of SEBI Act it is important to consider the factors as stipulated in Section 15J of the SEBI Act which reads as under: 15J. While adjudging quantum of penalty undershall have due regard to the following factors namely:— the amount of disproportionate gain or unfair advantage wherever quantifiable made as a result of the default the amount of loss caused to an investor or group of investors as a result of the default the repetitive nature of the default. andof section 15F 15G 15H and 15HA shall be and shall always be deemed to have been exercised under the provisions of this section.] I observe that the material available on record does not quantify any disproportionate gains or unfair advantage if any made by the Noticee and the losses if any suffered by the investors due to such violations on part of the said Noticee. However the Noticee has entered into two non genuine trades which demonstrates the violation of PFUTP Regulations 2003. 25. Therefore I note that Noticee indulged in execution of reversal trades in stock options contracts in the IP 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)and 4(1)of the PFUTP Regulations 2003. 26. Having considered all the facts and circumstances of the case the material available on record the factors mentioned in section 15J of the SEBI Act 1992 and in exercise of power conferred upon me under section 15 I of the SEBI Act 1992 read with rule 5 of the Adjudication Rules 1995 I hereby impose following penalty under section 15HA of the SEBI Act 1992 on the Noticee: Name of the Violation provisions Kasturi Aich Regulations 3(a) (c) ₹ 5 00 000 PAN: ACCPA1896N d) 4(1) and 4(2)(a) of Rupees Five Lakhs PFUTP Regulations 2003 I am of the view that the said penalty is commensurate with the lapse omission on the part of the Noticee. 27. The Noticee shall remit pay the said amount of penalty within 45 days of receipt of this order either by way of Demand Draft in 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 on the following path by clicking on the payment link: ENFORCEMENT  Orders  Orders of AO  PAY NOW 28. The aforesaid Noticee shall forward said Demand Draft or the details confirmation of penalty so paid to “The Division ChiefSecurities and Exchange Board of India SEBI Bhavan Plot No. C 4 A “G” Block Bandra Kurla Complex Bandra Mumbai 400 051.”. The Noticee shall also provide the following details while forwarding DD payment  Name and PAN of the Noticee  Name of the case matter  Bank Name and Account Number  Transaction Number  Purpose of Payment Payment of penalty under AO proceedings In the event of failure to pay the said amount of penalty within 45 days of the receipt of this Order SEBI may initiate consequential actions including but not limited to recovery proceedings under section 28A of the SEBI Act 1992 for realization of the said amount of penalty along with interest thereon inter alia by attachment and sale of movable and immovable properties. In terms of the provisions of rule 6 of the Adjudication Rules a copy of this order is being sent to the Noticee viz. Kasturi Aich and also to the Securities and Exchange Board of India. Date: January 28 2022 BARNALI MUKHERJEE Place: Mumbai ADJUDICATING OFFICER

An FIR can only be quashed when it does not disclose any cognizable offence, has been lodged with motive of vengeance or in utter disregard of law: High Court of Jammu and Kashmir

There are only three situations where a First Information Report will be quashed, i.e., when it can be established that it does not disclose any cognizable offence, was lodged with the ulterior motive of wreaking vengeance or was lodged in utter disregard of the provisions of law. This was held by a single member bench of the High Court of Jammu and Kashmir consisting of Justice Rajnesh Oswal in the case of Mohd Shabir v State of Jammu and Kashmir [CRMC No. 84/2014] on 19th July 2021. The petitioner, Mohd Shabir filed the present petition for the purpose of quashing FIR No. 31/2014 dated 6th March 2014 registered with Police Station Surankote against him by Sakina Begum who is respondent No. 2. The petitioner is a retired official from the Central Reserve Police Force who had solemnized marriage with respondent No. 2 on the 20th of November 1995 and had one daughter born in 2008. Respondent No. 2 lodged a complaint in the Police Station on 6th March 2014 that her husband had been harassing her constantly and demanding dowry of about Rs. 10 lakhs or 5 marlas of land belonging to her parents. It was alleged that the petitioner threatened that if these demands were not fulfilled, respondent no. 2 would not be allowed to live in his house anymore. During the course of investigation, statements of witnesses and prima facie evidence indicated that these allegations were correct and the petitioner had been harassing respondent no. 2. In the present petition, the petitioner contended that in the past few years, respondent no.2 used to leave their house without informing him or giving any explanation for her absence and after the petitioner opted for premature retirement, he came to know about respondent no.2 spending time with bad company and divorced her as a result. The divorce was allegedly executed before the Notary Public on 13th February 2014. The petitioner claims that the FIR filed against him by the petitioner was only an act on vengeance as its contents were all false and frivolous. For this reason, the petitioner prayed for the quashment of the said FIR. The Court held that the prima facie evidence indicated that respondent’s complaint had at least some truth to it and the petitioner’s claim that it was filed out of a revenge motive could not be proven yet. For this reason the case would have to continue and the FIR could not be quashed.

t HIGH COURT OF JAMMU AND KASHMIR S. No. 216 AT JAMMU Mohd. Shabir State of J&K and another CRMC No. 84 2014 IA No. 101 2014 RespondentThrough : Mr. Suyash Singh Chandel Advocate Through : Mr. Adarsh Bhagat GA Coram: HON’BLE MR. JUSTICE RAJNESH OSWAL JUDGE The present petition has been filed by the petitioner for quashing of FIR bearing No. 31 2014 dated 06.03.2014 registered with Police Station Surankote District Poonch against him at the behest of respondent No. 2. It is stated that the petitioner is a retired official from Central Reserve Police Force and has solemnized marriage with respondent No. 2 on 20.11.1995 and out of said wedlock one female child was born in the year 2008. It is further stated that initially the behavior of respondent No. 2 was good but thereafter her behavior changed altogether. The respondent No. 2 used to leave her house without informing the other family members of the petitioner. The petitioner was posted outside of J&K and as a result of which the petitioner was forced to take premature retirement. It is further stated that as soon as petitioner came to know that the respondent No. 2 was in bad company he divorced her. The said Talak Nama was duly executed before the Notary Public Poonch on 13.02.2014. It is further stated that in petition filed by respondent No. 2 for maintenance respondent No. 2 had admitted before the learned Magistrate that she is in receipt of divorce deed dated 13.02.2014 and even after the divorce the respondent No. 2 has filed false and frivolous FIR against the petitioner. 2 CRMC No. 84 2014 So precisely the case of the petitioner is that after the divorce the respondent No. 2 in order to wreck vengeance had lodged the FIR in question against the petitioner. Compliance report stands filed in which it is stated that on 06.03.2014 complainant respondent No. 2 namely Sakina Begum lodged a written complaint in Police Station Surankote Poonch that she is inhabitant of Village Surankote and had married to one Mohd. Shabir petitioner herein since last twenty years and out of that marriage she had one girl child. It is further stated that her father has expired and now her husband petitioner has been harassing her time and again and demanding more dowry of cash of Rs. 10 lakh or 05 Marlas land of her parents on roadside if she wants to live in his home otherwise he will not allow her to live in his home. On the said complaint FIR bearing No. 31 2014 for commission of offence under section 498 A RPC has been registered at Police Station Surankote. During the course of investigation statements of the respondent No. 2 and witnesses have been recorded and Investigating Officer has proved offence under section 498 A RPC against the petitioner herein. Mr. Suyash Singh Chandel learned counsel for the petitioner has reiterated the submissions made in the petition. Mr. Adarsh Bhagat GA submits that these are disputed question of facts and cannot be adjudicated upon in a petition filed under section 561 A Cr.P.CJUDGE Whether the order is speaking: Whether the order is reportable:

All claims based on the Larsgess Scheme must now be closed: Supreme Court of India

The court dismissed a petition requiring it to invoke Article 32 seeking a grant of relief under Larsgess Scheme that was terminated in 2017. The scheme enabled a certain category of railway employees to seek ‘voluntary retirement’ after they complete a service of 33 years or reach an age group of 55-57 years and can seek appointment of their wards in their place. In the matter of Manjit and Ors vs Union of India and Anr [Writ Petition (Civil) No 78 of 2021], the petition was called on for hearing on 29-01-2021 with a three bench of Hon’ble Dr. Justice D.Y. Chandrachud, Hon’ble Ms. Justice Indira Banerjee and Hon’ble Mr.Justice Sanjiv Khanna. The dispute in this case was related to the Larsgess Scheme adopted by the Railway Administration. In 2016, Punjab and Haryana High Court asked Union of India to reconsider the scheme since it provided an entry to certain wards without undergoing competitive selection consistent with the requirements under Article 14 and Article 16 of the Indian Constitution. The petition sought relief for writ of mandamus to the Union of India to appoint the petitioners in their respective cadres. The reliefs cited under Article 32 were as following: “(a) Issue a writ in the nature of mandamus directing the respondent to appoint the petitioners in their respective cadres; and (b) Issue any other appropriate writ, order or direction in the facts and circumstances of the case.” In 2018, the court ordered Union of India to take a conscious decision within a specified period and the Union of India terminated the scheme henceafter. Following the decision, this Court disposed a matter in 2019 by observing that since the Scheme stands terminated and is no longer in existence, nothing further need be done in it. The Scheme provided a back door entry to the railways which was fundamentally at odds with Article 16 of the Constitution. In a subsequent order dated 26 March 2019, which was rendered in Writ Petition (C) No 219 of 2019 (Narinder Siraswal v Union of India), a Bench of two Judges permitted the petitioners to approach the authorities with an appropriate representation with a direction to consider it. In view of the above factual background, the court observed that “we are not inclined to entertain the petition under Article 32. The grant of reliefs to the petitioners would only enable them to seek a back door entry contrary to the orders of this Court. The Union of India has correctly terminated the Scheme and that decision continues to stand.” The Union government discontinued the scheme with justification. The petitioners can claim neither a vested right nor a legitimate expectation under that scheme, and all the claims based on the scheme must now be closed. With regard to the above facts and circumstances, the court dismissed the petition. Click here to read judgement.

IN THE CIVIL ORIGINAL JURISDICTION Writ PetitionNo 721 Manjit and Ors Union of India and Anr JUDGMENT Dr Dhananjaya Y Chandrachud J Invoking the jurisdiction under Article 32 of the Constitution the petitioners seek the following reliefs Issue a writ in the nature of mandamus directing the respondent to appoint the petitioners in their respective cadres and Issue any other appropriate writ order or direction in the facts and circumstances of the case.” The dispute in the present case relates to a scheme popularly termed as the Larsgess Scheme which had been adopted by the Railway Administration previously. The Punjab and Haryana High Court passed orders on 27 April 2016 and 14 July 2017 requiring the Union of India to reconsider the Scheme. The orders of the High Court were evidently based on the fact that the Scheme provided for an entry into service for certain wards of serving employees without undergoing a competitive selection consistent with the requirement of Articles 14 and 16 of the Constitution. On 8 January 2018 in SLPNo 5018 arising from the judgment and order of the High Court of Punjab and Haryana dated 14 July 2017 in RP No 3317 this Court directed the Union of India to take a conscious decision within a period of six weeks . The order dated 8 January 2018 was in the following terms “Heard learned counsel for the parties. Delay condoned. Since the direction in the impugned order is only to re visit the Scheme in question no interference is called for at this stage The petitioner(s) may take a conscious decision in the matter within a period of six weeks from today. If any party is affected by the decision taken such party may take remedy against the same in accordance with law. The special leave petition is accordingly disposed of. Pending application(s) including application for intervention shall also stand disposed of.” On 5 March 2019 the Union of India took a decision to terminate the Scheme The decision of the Union of India was noticed in an order dated 6 March 2019 in the following terms In compliance of the directions of the Hon ble Punjab Haryana High Court dated 27.04.2016 in CWP No.77116 dated 14.07 .2017 in RA CW 330 2017 and Orders of Hon ble Supreme Court dated 08.01.2018 in SLP No 5018 by observing that “since the Scheme stands terminated and is no longer in existence nothing further need be done in In a subsequent order dated 26 March 2019 which was rendered in Writ Petition C) No 2119a Bench of two Judges permitted the petitioners to approach the authorities with an appropriate representation with a direction to consider it The reliefs which have been sought in the present case as already noted earlier are for a writ of mandamus to the Union of India to appoint the petitioners in their respective cadres. A conscious decision has been taken by the Union of India to terminate the Scheme. This has been noticed in the order of this Court dated 6 March 2019 which has been extracted above. While taking this decision on 5 March 2019 the Union of India had stated that where wards had completed all formalities prior to 27 October 2017to the Chairman of the Railway Board for intimation and compliance. Pending application if any stands disposed of SECTION X S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Writ Petition(s)(Civil) No(s).78 2021 MANJIT & ORS. Petitioner(s VERSUS UNION OF INDIA & ANR. Respondent(s WITH IA No.8032 2021 EXEMPTION FROM FILING AFFIDAVIT Date : 29 01 2021 This petition was called on for hearing today CORAM : HON BLE DR. JUSTICE D.Y. CHANDRACHUD HON BLE MS. JUSTICE INDIRA BANERJEE HON BLE MR. JUSTICE SANJIV KHANNA For Respondent(s) Mr. Raj Kishor Choudhary AOR Mr. Shakeel Ahmed Adv Mr. Anupam Bhati Adv Ms. Malvika Raghavan Adv Mr. Nakul Chaudhary Adv Mr. H.S. Mann Adv UPON hearing the counsel the Court made the following O R D E R The writ petition is dismissed in terms of the signed reportable judgment. A certified copy of this order shall be forwarded by the Registrarto the Chairman of the Railway Board for intimation and compliance. Pending application if any stands disposed of AR CUM PS COURT MASTER SAROJ KUMARI GAUR Signed reportable judgment is placed on the file

PURANLAL LAKHANPAL V. UNION OF INDIA

On July 24, 1956, the grounds of detention were communicated to the appellant under S. 7 of the Preventive Detention Act No. 4 of 1950. The case of the appellant was then sent to an Advisory Board constituted under S. 8 of the Act, and the Advisory Board having reported that there was, in its opinion, sufficient cause for detention of the appellant, the Central Government confirmed the order of detention on August 20, 1956, and stated further that the appellant “shall continue in detention for a period of twelve months from the date of his detention.”This order was passed under sub-s. (1) Of S. 11 of the Act. Before that date, however, the appellant moved the Punjab High Court as also this Court challenging the legality of his detention and asked for the issue of a writ in the nature of a writ of habeas corpus. The petition to this Court was dismissed. In the petition to the Punjab High Court under Art. 226 of the Constitution, the appellant was permitted to urge an additional ground to the effect that sub-s. (1) Of S. 11 of the Act was unconstitutional inasmuch as it offended against Art. 22 (4) (a) of the constitution.This constitutional point was referred to and decided by a Division Bench of the Punjab High Court by an order dated September 24, 1956. The High Court held that sub-s. (1) Of S. 11 of the Act was neither repugnant to nor inconsistent with the provisions of Art. 22 (4) of the Constitution. A single Judge of the High Court then dealt with the petition of the appellant on merits and dismissed it by an order D/- 26-9-1956.The appellant moved the Punjab High Court unsuccessfully for leave to appeal to this Court. He then moved this Court, and obtained special leave to appeal from the aforesaid orders of the Punjab High Court dated September 24, and September 26, 1956, respectively.ISSUE BEFORE THE COURT:Whether the sub-s. (1) Of S. 11 of the Preventive Detention Act does not conform to the constitutional mandate given by sub-cl. (a) of Cl. (4) of Art. 22 of the Constitution?RATIO OF THE COURT:The learned counsel for the appellant argued that the sub section 1 of section 11 of the Act goes against the constitutional mandate under Article 22 (4) which the learned counsel for the Union of India opposed by submitting that that the expression ‘such detention’ occurring in sub-cl. (a) of Cl. (4) of Art. 22 refers back to ‘preventive detention’ occurring in the first line of Cl. (4) ,and under the said sub-clause the Advisory Board is to give its opinion as to whether there is sufficient cause for the detention of the person concerned; there is no duty cast on the Advisory Board to determine the period of detention, and the failure of the Advisory Board to state in its report that there is sufficient cause for the detention of the person concerned for more than three months no violation of the constitutional mandate contained in the said sub-clause.The court examined the provisions of Art. 22 and observed that the Constitution has in one case given discretion to the Executive not to furnish facts in certain circumstances and in the other case left it to Parliament to prescribe cases or classes of cases in which reference to the Board need not be made. Considering the circumstance that the detention is of a preventive nature, the Executive has necessarily to consider whether a person should be detained and the period for which he should be detained.The court further opined that it could not have been the intention to give the power of determining the necessity of detention of a particular person to the Executive, and leave to another authority – the Board in this case – to say whether the detention should be for three months or more. In the very nature of things the decision as to the period of detention must be of the detaining authority, because, it is the authority upon which responsibility for detention has been placed.The court held that the reference to the Board is only a safeguard against Executive and is not a limitation on the Executive’s discretion as to the discharge of its duties connected with preventive detention; it is a safeguard against misuse of power.The court also dwelled upon the obligation upon the govt. to coumminicate the grounds of detention and facilitate the detenu’s representation and determining the detention period after considering the finding of advisory committee under s. 7, 8, 9 of the Act. The court relied upon Makhan Singh Tarsikka v. State of Punjab, 1952 SCR 368 at p. 370: (AIR 1952 SC 27 at p. 28) wherein it was held that the period of detention should be fixed after the findings of the advisory board and not before. The court held that the constitution provides for detention longer than the period of three months after the consideration of the advisory board. Therefore, the sub section was not ultra vires.As opposed to the appellant’s arguments that the detention had no relation to the past conduct the court held that what the appellant is likely to do in future must, to a large extent be inferred from his past conduct and that the ground has a rational connection with the objects which the appellant has to be prevented from attaining. The objects of the appellant’s detention were to prevent him from acting in a manner prejudicial to (1) the security of India and (2) her relations with foreign powers. The court held that both these objects came within the ground in question.The court also disagreed that the order was mala fide. It held that the activities of the appellant and the events of 1954 to 1956 referred to by the appellant, did not in any way show that the order of detention made against the appellant was made for any ulterior purpose or for purposes other than those mentioned in the detention order. On the question of mala fides, it is not a relevant consideration whether the activities of the appellant were liked or disliked by the authorities concerned. The only relevant consideration was if the order of detention was made for ulterior purposes or purposes other than those mentioned in the detention order and the court did not find any such purpose. On July 24, 1956, the grounds of detention were communicated to the appellant under S. 7 of the Preventive Detention Act No. 4 of 1950. The case of the appellant was then sent to an Advisory Board constituted under S. 8 of the Act, and the Advisory Board having reported that there was, in its opinion, sufficient cause for detention of the appellant, the Central Government confirmed the order of detention on August 20, 1956, and stated further that the appellant “shall continue in detention for a period of twelve months from the date of his detention.” This order was passed under sub-s. (1) Of S. 11 of the Act. Before that date, however, the appellant moved the Punjab High Court as also this Court challenging the legality of his detention and asked for the issue of a writ in the nature of a writ of habeas corpus. The petition to this Court was dismissed. In the petition to the Punjab High Court under Art. 226 of the Constitution, the appellant was permitted to urge an additional ground to the effect that sub-s. (1) Of S. 11 of the Act was unconstitutional inasmuch as it offended against Art. 22 (4) (a) of the constitution.This constitutional point was referred to and decided by a Division Bench of the Punjab High Court by an order dated September 24, 1956. The High Court held that sub-s. (1) Of S. 11 of the Act was neither repugnant to nor inconsistent with the provisions of Art. 22 (4) of the Constitution. A single Judge of the High Court then dealt with the petition of the appellant on merits and dismissed it by an order D/- 26-9-1956. The appellant moved the Punjab High Court unsuccessfully for leave to appeal to this Court. He then moved this Court, and obtained special leave to appeal from the aforesaid orders of the Punjab High Court dated September 24, and September 26, 1956, respectively. Whether the sub-s. (1) Of S. 11 of the Preventive Detention Act does not conform to the constitutional mandate given by sub-cl. (a) of Cl. (4) of Art. 22 of the Constitution? The learned counsel for the appellant argued that the sub section 1 of section 11 of the Act goes against the constitutional mandate under Article 22 (4) which the learned counsel for the Union of India opposed by submitting that that the expression ‘such detention’ occurring in sub-cl. (a) of Cl. (4) of Art. 22 refers back to ‘preventive detention’ occurring in the first line of Cl. (4) ,and under the said sub-clause the Advisory Board is to give its opinion as to whether there is sufficient cause for the detention of the person concerned; there is no duty cast on the Advisory Board to determine the period of detention, and the failure of the Advisory Board to state in its report that there is sufficient cause for the detention of the person concerned for more than three months no violation of the constitutional mandate contained in the said sub-clause.The court examined the provisions of Art. 22 and observed that the Constitution has in one case given discretion to the Executive not to furnish facts in certain circumstances and in the other case left it to Parliament to prescribe cases or classes of cases in which reference to the Board need not be made. Considering the circumstance that the detention is of a preventive nature, the Executive has necessarily to consider whether a person should be detained and the period for which he should be detained.The court further opined that it could not have been the intention to give the power of determining the necessity of detention of a particular person to the Executive, and leave to another authority – the Board in this case – to say whether the detention should be for three months or more. In the very nature of things the decision as to the period of detention must be of the detaining authority, because, it is the authority upon which responsibility for detention has been placed.The court held that the reference to the Board is only a safeguard against Executive and is not a limitation on the Executive’s discretion as to the discharge of its duties connected with preventive detention; it is a safeguard against misuse of power.The court also dwelled upon the obligation upon the govt. to coumminicate the grounds of detention and facilitate the detenu’s representation and determining the detention period after considering the finding of advisory committee under s. 7, 8, 9 of the Act. The court relied upon Makhan Singh Tarsikka v. State of Punjab, 1952 SCR 368 at p. 370: (AIR 1952 SC 27 at p. 28) wherein it was held that the period of detention should be fixed after the findings of the advisory board and not before. The court held that the constitution provides for detention longer than the period of three months after the consideration of the advisory board. Therefore, the sub section was not ultra vires.As opposed to the appellant’s arguments that the detention had no relation to the past conduct the court held that what the appellant is likely to do in future must, to a large extent be inferred from his past conduct and that the ground has a rational connection with the objects which the appellant has to be prevented from attaining. The objects of the appellant’s detention were to prevent him from acting in a manner prejudicial to (1) the security of India and (2) her relations with foreign powers. The court held that both these objects came within the ground in question.The court also disagreed that the order was mala fide. It held that the activities of the appellant and the events of 1954 to 1956 referred to by the appellant, did not in any way show that the order of detention made against the appellant was made for any ulterior purpose or for purposes other than those mentioned in the detention order. On the question of mala fides, it is not a relevant consideration whether the activities of the appellant were liked or disliked by the authorities concerned. The only relevant consideration was if the order of detention was made for ulterior purposes or purposes other than those mentioned in the detention order and the court did not find any such purpose. DECISION HELD BY COURT:Appeal was dismissed. Appeal was dismissed. MINORITY DISSENT: J. SARKAR As a matter of pure construction of the language used in sub-cl. (a), the words “such detention” must mean detention for a longer period than three months. The word “such” means, of the kind or degree already described. Of the meanings of the word “such” given in the Oxford Dictionary this I find to be the only one appropriate in the present context. The learned judge held that such detention means detention for a longer period than three months. Therefore, the provision is ultra vires.The learned judge also held that it is not intended that when detention for a period longer than three months is contemplated, it is not necessary to obtain the opinion of the Advisory board as to whether there was sufficient cause for detention for the period. Such a detention beyond three months cannot be preventive in tits nature. He therefore, allowed the appeal.

P. L. LAKHANPAL Vs UNION OF INDIA DATE OF JUDGMENT SARKAR A.K.(b) If ultra vires s 3(2)(15)of Defence of India Act Constitution of India Art. 352 Proclamation If to state satisfaction of The petitioner the editor of a newspaper was detained under r. 30(1)(b) of the Defence of India Rules 1962. He filed a petition under Art. 32 of the Constitution for a writ of habeas corpus challenging the legality of the detention order on various grounds. Dismissing the HELD:Rule 30(b) cannot be said to be ultra vires of s 3(15)(i) of the Defence of India Act for the reason that it does not state that the satisfaction of the authority making the order of detention has to be on grounds appearing to it to be reasonable. The rule requires only that the detaining authority must be satisfied that the detention is necessary for the purposes mentioned and that is what the latter part of the section under which it was made also says. This part does not contain any requirement as to satisfaction on reasonable grounds. The rule has clearly been made in terms of the section authorising it Article 352 of the Constitution does not require the proclamation to state the satisfaction of the President about the Emergency. The Article requires only a declaration of emergency threatening the security of India by one of the causes mentioned. The words "to that effect can have no other meaning. A proclamation ceases to have effect only by one of the events mentioned in cl. 2 of Art 352 of the Constitution.[212 C Section 3(2)(15)(iv) of the Defence of India Act and r. 30 A of the Defence of India Rules does not give a right to make a representation. Their effect is to provide a review of the detention order by the authorities and in the manner mentioned. Rule 23 of the Defence of Indiaof the Defence of India Rules.of sub r.of Rule 301 of the Defence of India Rules. 1962 by an order passed on December 10 1965 and directed to be detained in Central Jail Tehar New Delhi. The order stated that "WHEREAS the Central Government is satisfied that with a view to preventing Shri P.L Lakhanpal. son of late Shri Diwan Chand Sharma........from acting in a manner prejudicial to the Defence of India and Civil Defence public safety and the maintenance of public order it is necessary that he should be detained NOW THEREFORE..............the Central Government hereby directs that the said Shri P. L. Lakhanpal be detained He has moved this Court under Art. 32 of the Constitution by a petition presented on December 24 1965 for a writ of habeas corpus directing his release. He challenges the legality of the detention order on various grounds which we now proceed to consider The first ground is that r. 30(1)(b) is ultra vires s 3(2)(15)(1) of the Defence of India Act under which the Rules were made. Sub s.(1) of s. 3 contains the general power to make rules for certain purposes. Sub section notwithstanding anything in any other law for the time being in force the apprehension and detention in custody of any person whom the authority empowered.........suspects on grounds appearing to that authority to be reasonable .................... acting being about to act or being likely to act in a manner prejudicial to the defence of India and civil defence the security of the State the public safety or interest the maintenance of public order........or with respect to whom that authority is satisfied that his apprehension and detention are necessary for the purpose of preventing him from acting in any such prejudicial manner 211 Rule 30(1)(b) is in these terms "The Central Government............... if it is satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the defence of India and civil defence the public safety the maintenance of public order............... may make an order directing that he be detained It will be noticed that the rule does not say that the satisfaction mentioned in it shall be on grounds appearing to the authority concerned to be reasonable. It is said that by omitting these words the rule has gone outside the section which mentions them and is therefore ultra vires This contention is untenable. It overlooks the fact that the latter part of the section states that the rules made under it may also provide for the apprehension and detention of a person "with respect to whom that authority is satisfied that his apprehension and detention are necessary for certain purposes this part does not contain any requirement as to satisfaction on reasonable grounds. This part of the section is independent of the earlier part under which the apprehension and detention can be directed only when the authority suspects on certain grounds appearing to it to be reasonable that a person is about to act in a certain manner. It is of some significance to point out that the second part of the section is preceded by the word ’or’. That puts it beyond doubt that the rules made under it may provide for detention in two alternative cases for the first of which only it is necessary that the authority should entertain a suspicion on grounds appearing to it to be reasonable. That requirement is absent in the case of a rule made under the second part of the section. Rule 30(1)(b) cannot be said to be ultra vires the section for the reason that it does not state that the satisfaction of the authority making the order of detention has to be on grounds appearing to it to be reasonable. The rule requires only that the detaining authority must be satisfied that the detention is necessary for the purposes mentioned and that is what the latter part of the section under which it was made also says. The rule has clearly been made in terms of the section authorising it It was next said that the Proclamation of Emergency made by the President under Art. 352 of the Constitution which prevented the Act from being illegal was not in terms of the article as it did not state that the President was satisfied that a grave emergency existed. It is true that the Proclamation did not do that. It stated " In exercise of the powers conferred by clauseof article 352 of the Constitution I Sarvapalli Radhakrishnan President of India by this Proclamation declare that a grave emergency exists whereby the security of India is threatened by external aggression 212 We however find nothing in the Article which requires the Proclamation to state the satisfaction of the President about the emergency. Article 352(1) reads "If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened whether by war or external aggression or internal disturbance he may by Proclamation make a declaration to that effect The Article requires only a declaration of emergency threatening the security of India by one of the causes mentioned. The words "to that effect" can have no other meaning. The power to make the declaration can no doubt be exercised only when the President is satisfied about the emergency but we do not see that the Article requires the condition precedent for the exercise of the power that is the President’s satisfaction to be stated in the declaration. The declaration shows that the President must have satisfied himself about the existence of the emergency for in these matters the rule that official acts are presumed to have been properly performed applies and there is nothing proved by the petitioner to displace that presumption. We were referred to certain other provisions viz. Art. 311(2)(c) of the Constitution and r. 30(1)(b) of the Rules and it was contended that these provisions require the satisfaction to be stated. It is unnecessary to decide whether they so require. Even if they did the requirement of the statement of the President’s satisfaction in the present case has to be decided on the terms of Art. 352 alone. We have said that this Article does not contain any such requirement. It is of interest to point out here that the petitioner stated in his petition that he extended his full support to the Government on the Proclamation of Emergency. Obviously he could not have done so if he had any doubt about the legality of the Proclamation. Then it was said that the Proclamation should have stated the direction from which the external aggression which it mentioned was apprehended. We find nothing in the Article to require the Proclamation to state this. The Proclamation was issued on October 26 1962 when it is well known India’s integrity was threatened by China It was also stated that the continuance of Emergency which was declared over three years ago is a fraud on the Constitution. We were told that the President in his address to the Parliament in February this year did not state that the Emergency continued to exist. The President’s address has not been produced and we do not know what it contained. However that may be Art. 352 itself by cl.provides that a Proclamation issued under cl. may be revoked by a subsequent Proclamation and shall cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament. This clause also states that the Proclamation shall be laid before each House of Parliament. It has not been stated that the Houses of Parliament did not approve of the Proclamation within the period of two months. It would appear therefore that the only way a Proclamation ceases to have effect is by one of the events mentioned in this clause. None of them has happened. Nothing contained in an address by the President to the Houses of Parliament can operate to terminate the Proclamation. In this connection it was also said that ’external aggression’ means armed aggression and as for some time past there was no armed aggression against the territory of India the continuance of the Proclamation was unjustified. This contention must also fail on the ground which we have just mentioned Another challenge to the legality of the detention was that the petitioner had not been allowed to make any representation against his detention. Our attention was drawn in this connection to s. 3(2)of the Act and r. 30 A of the Rules and also to r. 23 of the Defence of IndiaRules 1964. The two first mentioned provisions do not in our opinion give a right to make a representation. Their effect is to provide a review of the detention order by the authorities and in the manner mentioned. The last one states that a detenue will be allowed to interview a legal practitioner for the purpose of drafting his representation against his detention. It has not been stated in the petition that the petitioner was pre vented from making any representation or denied the opportunity to consult a legal practitioner. All hat is said is that he had not been furnished particulars of his writing s and materials on which the satisfaction of the Central Government mentioned in the order was based and that had prevented him from making a representation to the Government against his detention. This contention seems to us unwarranted. There is nothing to show that the detention order had been based on petitioner’s writings nor has our attention been drawn to any provision which requires the detaining authority to supply the materials on which they had formed their satisfaction about the necessity of the Then it was said that the order of detention violated s. 44 of the Act and s. 3(2)(4)(b) (7)(a)(b)(c) andand rr. 41 42 44 45 and 46 of the Rules. The substance of the contention is that the petitioner was the editor of and ran a newspaper and that action against him could only be taken under the sections and rules earlier mentioned and not under r. 30(1)(b). This contention seems to us to be entirely groundless. The provisions referred to no doubt deal with newspapers and the manner of controlling them but they in no way lead to the conclusion that a newspaper editor may not if the occasion arises be detained under r 30(1)(b). The fact that newspapers and men connected with them may be dealt with in a certain manner does not prevent detention of such persons under r. 30(1)(b). It was also said that r. 30(1)(b) requires that the part of India which is to be prejudicially affected by the acts of the detenue has to be mentioned in the order. This is an idle contention. The rule no doubt says that the detention may be ordered to prevent a person from acting in a manner prejudicial to the maintenance of peaceful conditions in any part of India but it also says that the detention can be ordered for preventing a person from acting in a manner prejudicial to the defence of India civil defence and public safety and maintenance of public order with regard to which there is no requirement provided that they should be confined to any part of India or that part should be mentioned in the order of detention. The order in this case was made on these grounds. The petition furnishes no material for saying that the terms of s. 44 have been violated. There is nothing to show that the detention interfered with the petitioner’s avocation in life in a manner not justified by that section The last ground taken was that the detention order was mala fide because the Home Minister had not sworn an affidavit to say that he was satisfied about the necessity for the detention. There is a bald allegation in the petition that the detaining authority had not applied its mind to the matter before making the order of detention. This part of the petition was verified as true to the petitioner’s knowledge. This verification was plainly false and therefore the allegation in the petition required no answer. However that may be a Deputy Secretary to the Home Ministry of the Government of India has sworn an affidavit stating as true to his knowledge that the materials in connection with the activities of the petitioner were placed before the Union Home Minister and on a consideration of those materials the Minister was satisfied that the detention order was necessary The result is that this petition fails and it is accordingly

Between ‘may be true’ and ‘must be true’ there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence: Bombay High Court

Between ‘may be true’ and ‘must be true’ there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence, this was upheld in the recent case of Mohd. Arman Mohd. Ali Khan v. The State of Maharashtra [CRIMINAL APPEAL NO. 685 OF 2010, CRIMINAL APPEAL NO. 662 OF 2010], listed in the Bombay High Court, Criminal Appellate Jurisdiction. The judgement was pronounced on February 14h 2022, and the said proceedings were presided by a coram comprising of Justice SMT. Sadhana S. Jadhav & Justice Prithviraj K. Chavan. The facts, as presented before the court of law, are as follows. The appellants herein were convicted for the offence punishable under section 302 read with section 34 of the Indian Penal Code. The appellants are further convicted of the offence punishable under section 201 read with section 34 of the Indian Penal Code. Nurul Hasan Khan lodged a report with Trombay Police Station alleging therein that his uncle Nadir Khan owned Shop was closed at about 8.30 p.m. but, it normally remained open till midnight. He called upon the people in the locality and opened shutter. There he noticed the dead bodies of Suresh Murav and Dilshad Khan. Suresh Murav worked in the said shop along with Dilshad. While the case being heard, many landmark judgments of Anwar Ali & anr. v. State of Himachal Pradesh [(2020) 10 SCC 166], State of Rajasthan v. Rajaram [(2003) Cr. L. J. 3901], Balwinder Singh v. State of Punjab [1996 AIR SC 607] were quoted in order to put emphasize on the pertinent case. The Supreme Court ruling in the case of Balwinder Singh v. State of Punjab [1996 AIR SC 607] was emphasised. It was held that “An extra-judicial confession by its very nature is rather a weak type of evidence and requires appreciation with great deal of care and caution…” The Court, after hearing both the sides, analysing facts, and considering a perusal of all evidences, emphasised the ruling in Sarwan Singh v. State of Punjab [1957 AIR 637] that “considered as a whole, the prosecution story may be true; but between ‘may be true’ and ‘must be true’ there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence…” The court in light of the above, held that the appeals were to be allowed.   Judgment reviewed by Pranav Sharma

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 685 OF 2010 INTERIM APPLICATION NO. 1435 OF 2020 INTERIM APPLICATION NO. 1941 OF 2021 1. Mansoorali Khan Ahmed Khan Majipur Post Baktavsinh Tal. Karnalganj. Dist. Gonda Uttar Pradesh 2. Shahjad Ahmed Tashrif Ahmed Khan Taspura Tal. Karnalganj Dist. Gonda Uttar Pradesh. State of Maharashtra At the instance of the Trombay Police Station C.R. No. 167 2006 Mohd. Arman Mohd. Ali Khan Aged : 39 years Residing at Maijapur Post Baktavsinh Tal. Karnalganj. Dist. Gonda Uttar Pradesh CRIMINAL APPEAL NO. 662 OF 2010 At present in judicial custody in Nashik Central Prison. State of Maharashtra At the instance of the Trombay Police Station C.R. No. 167 2006 Mr. M.M. Khokhawala a w. Ms. Megha Puralkar advocate for appellant No. 1 in Appeal No. 685 2010 Ms. Devyani Kulkarni advocate appointed for appellant No. 2 in Appeal No.2 in Appeal No. 685 2010 and for appellant in Appeal No Ms. G.P. Mulekar APP for State CORAM : SMT. SADHANA S. JADHAV & PRITHVIRAJ K. CHAVAN JJ RESERVED ON : SEPTEMBER 28 2021 PRONOUNCED ON : FEBRUARY 14 2022 JUDGMENTat 10.30 p..m. P.W. 9 had received wireless message from Trombay Police Station. He had immediately approached the police station and reached the scene of offence at about 12 midnight. That at the scene of offence they had seen melanin tin box lying on the floor. They had collected two finger prints from the mirror which was hanged on the wall. Photographer was not available. He had developed the chance print collected from the mirror. On 19 6 2006 he had received the finger prints slips of 3 accused persons from Trombay Police Station. Upon comparison he could identify the finger prints of accused No. 1 which was found identical with the chance print collected from the mirror. The report submitted by P.W. 9 is at Exh. 25. Test identification is conducted by P.W.13 Nirmala Singh. It is pertinent to note that P.W. 13 had no document to show that at the time of conducting test identification parade she was working as Special Executive Officer. She had started writing panchanama at about 5.45 p.m. and completed writing of the panchanama at 6.15 p.m.. She had categorically admitted that she is not aware of any rules prescribed by High Court for conducting test identification parade. She could not recollect as to whether the accused were brought at the place of test identification parade after arranging the dummies in the row or before that and that the accused persons were not similar in appearance. She could not recollect as to whether the dummies brought for test identification parade resembled the accused in any way. P.W. 14 Shenshah Khan happens to be the brother of the deceased Dilshad. He has categorically admitted that he knows all the 3 accused persons as they happened to be his cousins. The witness is declared hostile. He has denied to have stated the portion marked “A” which is to the effect that his mother has proposed marriage of Mansoor with Anjum which was not accepted by Mansoor’s mother Dilshad had warned Mansoor not to contact his sister Anjum and that was the reason why Mansoor was annoyed with Dilshad P.W.15 PSI Arvind Parab was attached to Trombay Police Station on 21 5 2006. He was deputed by PI Mr. Panpatte to visit the scene of offence. He had taken steps in the course of investigation. He had prepared inquest panchanama on the dead bodies of Dilshad and Suresh. He had also conducted scene of offence panchanama and at that time had noticed that in the bath room on the mezzanine floor of Khan Kirana stores water and blood was mixed. They had taken charge of the knife and aluminum wire which was lying near the 1 bathroom. He was not sure as to whether panchas for the scene of offence were stock panchas. That the bath room is not immediately visible upon entering into the loft. It is submitted that the crate in which the face of Dilshad was immersed was not seized. P.W. 16 Manik Bakhre was also attached to Trombay Police Station. Investigation of Crime No. 1606 was entrusted to him on 22 5 2006. He had recorded statement of the witnesses. It is admitted that he had been to Gonda District Uttar Pradesh in search of the accused. They were first called for interrogation. They were then brought to Trombay Police Station and arrested. He had taken finger prints of the accused persons in the presence of panchas. Clothes of the accused were seized at their instance under section 27 of the Indian Evidence Act. He was on leave on 21 5 2006 and therefore he visited the scene of offence on 22 5 2006. According to him Karbala ground is at a distance of half kilometer from the scene of offence. He has proved the omissions in the evidence of P.W. 3 Suraiya that she had stated before the police that 3 persons had visited the shop in her presence and they were talking loudly. It is also admitted that the arrest panchanama of the accused was not prepared in Uttar 1 Pradesh. It is also admitted that there is non compliance of section 157 of the Code of Criminal Procedure and FIR was not sent to court within 24 hours. According to him he had recorded the statement of Nurul Hasan. It is also admitted that he had not obtained transit warrant from Magistrate of Gonda District. There was no search taken of the dwelling houses of the accused in Gonda nor the statement of the family members was recorded. It is admitted that he had not arrested the accused in Gonda district but simply asked the accused to accompany the police to Mumbai. It is alleged that in the course of investigation bloodstained clothes were recovered at the instance of the accused under section 27 of the Indian Evidence Act. However the Investigating officer had admitted before the Court that he had not enquired the connection of the places with accused from where the clothes were recovered. Cross examination of P.W. 16 would show that after seizure the clothes were not sealed and they were kept in muddemal room The place from where the clothes were seized is accessible to members of the public. Knife was recovered at the instance of accused No. 1. It is apparent on the perusal of the said document that the names of the 1 panchas was written subsequently and marked as Exh. 18A. Respective Counsel for the accused have urged before the Court that the extra judicial confession would not inspire the confidence of the Court since P.W. 2 was a stray acquaintance with the accused. The omissions and contradictions in the evidence of P.W. 3 4 and 5 would go to show that they are got up witnesses and in that view the identification itself would fail. Hence it is vehemently urged that the prosecution has not stood on it’s own leg and therefore the accused deserves to be acquitted. Per contra learned APP submits that the prosecution has established the motive for commission of offence. That accused No. 1 was in love with the sister of deceased Dilshad who had warned him not to keep in contact with his sister. It is submitted that the recovery of weapons of offence and the clothes of the accused itself makes it clear that they are the perpetrator of the crime and the most important factor in the present case is that the prosecution has proved the extra judicial confession and in view of the same learned APP submits that the Judgment and order passed by Additional Sessions Court calls for 1 no interference. With the help of the respective Counsel we have perused the papers meticulously and upon appreciation of the evidence adduced by the prosecution following points would emerge It is admitted that deceased Dilshad was the cousin of the accused persons. That Dilshad and his servant Suresh were murdered in the shop which was being run by Dilshad brother in law of Akbar Khan who had been to his native place at the time of the incident P.W. 1 happens to be a chance witness. That at about 8.30 p.m. on 21 5 2006 he was surprised to see shop closed and that it was not locked. He therefore entered the shop premises only to see that lights and fans were on. However there was darkness on the mezzanine floor. He could notice feet in the bed room on the mezzanine floor. His call was not answered and therefore he was constrained to call upon the police The investigation was set in motion and the accused were brought from their native place Gonda Utter Pradesh. They were not arrested in Utter Pradesh but at the request of the police accused 1 accompanied them That the accused were not even the residents of The question that falls for determination before this Court is as to whether extra judicial confession alleged to have been made by accused No. 1 on 22 5 2006 at Karbala ground is voluntary truthful and has been a north star for the investigating agency. Firstly P.W. 2 was a stray acquaintance with the accused No. 1. It is admitted by P.W. 2 that accused No. 1 was working as waiter in Hotel Metro which was visited by P.W. 2 once in a week. There was no reason for accused No. 1 to repose faith in customer of the hotel. Moreover the location of Karbala ground is just across the road from the scene of offence. He met P.W. 2 by chance and divulged his guilt to P.W. 2 which does not appeal to a prudent mind. Extra Judicial confession necessarily is to be made to a person in whom maker of the statement reposes faith. Moreover accused had given graphic details of the act committed by him including the role of each of the accused persons and the manner in which they had killed both the deceased. It is rather 1 very difficult to accept that the accused would make an extra judicial confession to a stranger passing by the road who is only acquainted. The material on record would show that immediate disclosure was made by P.W. 2 to investigating agency. However there is no material on record to show that the investigating agency had made any efforts to apprehend the accused immediately. There is no material to show as to when the accused had left Bombay for Gonda after commission of offence. It is neither the case of the prosecution that they had absconded due to an apprehension of being placed under suspicion after disclosure was made by P.W. 2 to the police. However suddenly the police had gone to Gonda in the month of June 2006. In fact extra judicial confession made to P.W. 2 was more than sufficient for the police to arrest the accused in Gonda itself and return to Bombay after obtaining a transit warrant from the Magistrate in Gonda. The accused had not resisted to go to Bombay. That the conduct of the accused would show that they had not absconded since their place of residence has not been brought on record by the police There is no reference to taluka Karmalganj from where the accused were brought to Bombay. The Investigating Officer had made no 1 attempts to record the statement of accused No. 1 under section 30 of the Indian Evidence Act although he had stated graphic details before P.W. 2. Section 30 of the Indian Evidence Act reads as under 30. Consideration of proved confession affecting person making it and others jointly under trial for same offence.— When more persons than one are being tried jointly for the same offence and a confession made by one of such persons affecting himself and some other of such persons is proved the Court may take into consideration such confession as against such other person as well as against the person who makes such confession Explanation.—“Offence” as used in this section includes the abetment of or attempt to commit the offence.] It appears from the record that the investigation was directed on the basis of the statement of the P.W. 2 and the same is supplemented with motive. It would therefore be necessary to ascertain as to whether there is any independent reliable corroboration in order to place implicit reliance upon extra judicial confession of accused No. 1 to P.W. 2. 1 In fact extra judicial confession has to be proved like any other evidence and the value of the same would depend upon veracity of the witness to whom it was made. The confession is normally made to a person to avoid harassment from the police or the people concerned and also it is made to a person who could otherwise protect the accused. P.W. 2 is neither influential and not even of any help to accused No. 1. It does not appeal to a prudent mind that the accused who is not apprehended by police nor under any suspicion would confess the guilt before a stranger. The Supreme Court in the case of Balwinder Singh v s State of Punjab1 has held as follows “An extra judicial confession by its very nature is rather a weak type of evidence and requires appreciation with great deal of care and caution. Where an extrajudicial confession is surrounded by suspicious circumstances its credibility becomes doubtful and it loses its importance. The courts generally look for independent reliable corroboration before placing any reliance upon an extra judicial 1996 AIR SC 607 1 It would also be trite to refer to the Judgment of Supreme Court in the case of State of Rajasthan vs Rajaram2 wherein the Supreme Court has held as follows “It is not open to any court to start with the presumption that extra judicial confession is a weak type of evidence. It would depend on the nature of the circumstance the time when the confession was made and the credibility of witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded there on if the evidence about the confession comes from the mouth of witnesses who appeared to be unbiased not even remotely inimical to the accused and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused the words spoken by the witness are clear unambiguous and unmistakably convey that the accused is the perpetrator and nothing is omitted by the witness which may militate against it. If the evidence relating to extra judicial confession is found credible after being tested on the touch stone of credibility and acceptability it can solely form the basis of conviction The requirement of corroboration is a matter of prudence and not an invariable rule of law. It is improbable that the accused would repose confidence on a person who is inimically deposed towards him and confess his guilt.” 2003) Cr. L. J. 3901 1 Upon meticulous examination of the evidence of P.W. 3 the manner in which it is narrated the juncture at which the alleged extra judicial confession is said to have been made to P.W. 2 and the fact that the motive is falsified by the brother of the deceasedwe are of the opinion that this is not a fit case where implicit reliance could be placed on the extra judicial confession of the accused No. 1 for upholding the conviction. It is also clear that there is no independent corroboration to the alleged extra judicial confession. The manner in which it is said to have been made appears to be improbable and imprudent. There is no doubt that P.W. 3 is a got up witness as she claims to be a chance witness who seems to recollect even clothes worn by the accused when she saw them in the shop for hardly 5 minutes. In view of that the evidence in the nature of test identification would also fail. Moreover the Special Executive Officer P.W. 13) has failed to demonstrate before the Court that her nomination as Special Executive Officer was in place and that she was 2 authorised to conduct test identification parade. The learned Judge has placed reliance upon the recovery under section 27 of the Indian Evidence Act at the instance of the accused. The question is as to whether in a case of circumstantial evidence recovery by itself would be sufficient to uphold the conviction. The learned Sessions Judge has given undue importance to the recovery of blood stained clothes at the instance of the accused under section 27 of the Indian Evidence Act after about 20 days. It is further pertinent to note that it is the case of the prosecution that the accused were not resident of Bombay. They were arrested on 6 6 2006. The chronology of the events would be as follows FIR was lodged on 21 5 2006 against unknown persons An extra judicial confession was made to P.W. 2 on The accused were arrested on 6 6 2006 from Karnalganj district Gonda Uttar Pradesh Recovery of blood stained clothes was made on 11 6 2006 The knife was seized from the scene of offence on 21 5 2006 itself 2 It is pertinent to note that the Chemical Analyser’s report does not establish that the blood stains on the clothes recovered at the instance of the accused matched with the blood group of the deceased. The blood group of the deceased was “O” and blood of “O” group was found on the knife electric wire and key chain. The reports are inconclusive and therefore it cannot be said that the recovery of blood stained clothes after more than 3 weeks of the alleged incident is sufficient material to convict the accused for offence punishable under section 302 of the Indian Penal Code. The first and foremost fact that the weapons such as knife and wire were noticed while conducting the scene of offence panchanama and therefore it is only the recovery of blood stained clothes at the instance of the accused. The said evidence does not inspire the confidence in as much as the scene of offence panchanama does not even show as to whom the premises belonged from where the accused had produced the clothes. Moreover after seizure the clothes were not sealed. Panchas to the scene of offence panchanama appeared to be stock panchas of police. The recovery of the clothes is made approximately after more than 20 days of the incident. 2 On elimination of the material in the form of extra judicial confession and the recovery of blood stained clothes this could be a case of circumstantial evidence. Therefore the onus would lie upon the prosecution to show that there are cogent incriminating circumstance against the accused which would lead to the only inference that the accused are guilt of the offence alleged. The motive for commission of the offence is not proved which could have in all probabilities established a link in the chain of circumstantial evidence Brother of the deceased is declared hostile. In this premise the learned Counsel has placed reliance upon the Judgment in the case of Anwar Ali & anr. v s. State of Himachal Pradesh3. The Apex Court has observed that “It is also required to be noted and it is not in dispute that this is a case of circumstantial evidence. As held by this Court in catena of decisions that in case of a circumstantial evidence the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else and the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis 2020) 10 SCC 166 2 than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.” There is no unimpeachable legal reliable and admissible evidence to prove the guilt of the accused. The prosecution has been unable to discharge the onus cast upon it to adduce such evidence which would prove the guilt of the accused beyond reasonable doubt. The Apex Court in the case of Sarwan Singh v.s. State of Punjab4. The prosecution has to travel the distance between ‘may be’ and ‘must be’. It was held as follows : “considered as a whole the prosecution story may be true but between may be true and must be true there is inevitably a long distance to travel and the whole of this distance must be covered by legal reliable and unimpeachable evidence.” In view of the above observations the appeals deserve to be allowed. 4 1957 AIR 637 Before parting with the Judgment this Court appreciates 2 the Ms. Devyani Kulkarni learned Counsel appointed for giving able assistance to espouse the cause of the appellants. She is entitled to the professional fees as per rule. Hence following order is passed The appeals are allowed The conviction and sentence imposed upon the appellants vide Judgment and Order dated 7 7 2010 by the Additional Sessions Judge Greater Bombay in Sessions Case No. 8006 is hereby quashed and set aside. The appellants are acquitted of all the charges levelled The appellants be released forthwith if they are in jail. If they are on bail their bail bonds stand cancelled. The appeals are disposed of accordingly In view of disposal of appeals nothing survives in the interim applications. The same is disposed of accordingly. (PRITHVIRAJ K. CHAVAN J SMT. SADHANA S. JADHAV J 2

There can be no appointment of arbitrator without the consent of the next party: The High Court of Delhi

A single party cannot unilaterally appoint an Arbitrator without the consent of the other party, as this would defeat the purpose of an unbiased decree to settle the dispute between the parties. This was held in the judgement passed by a bench of the High Court of Delhi consisting of Mr Justice Suresh Kumar Kait in the case of M/s Sital Dass Jewelers v Asian Hotels (North) Ltd. [Arb. P. 661/2021]  The petitioner, M/s Sital Dass Jewelers had a licence agreement with the respondent, Asian Hotels (North) Ltd. which was renewable every five years at the option of the petitioner for leasing of space in the respondent’s shopping arcade in New Delhi. An additional space of 273 sq. ft. was granted to the petitioner in the same shopping arcade adjacent to the space already in the petitioner’s possession vide supplementary agreement which was meant to be read along with the original licence agreement dated 1s September 1982. The petitioners pointed out that the shopping arcade was around 40 years old and the infrastructure was in urgent need of repair as it was no longer financially profitable for them to run their shops in the respondent’s arcade. The two parties began to have disputes over various issues like the need for renovating the building and the functioning of the petitioner’s shops. It was pointed out that in the agreement dated 1st September 1982, an arbitration clause was included although it was not specified as to who was to be appointed as the arbitrator. The petitioner’s counsel called for the appointment of Retired Justice N.K. Mody as the sole arbitrator to settle the dispute between the parties. The respondent, on the other hand, refused to concur with the petitioner’s demands and as a result, the present petition was brought before the High Court of Delhi. The arbitration clause in the agreement read that “That in case of any dispute, difference, between the company and you, with regard to any matter including interpretation of this agreement and the clarification thereof, the same shall be referred to the joint arbitration of the Chairman of the Company or any person appointed by the Chairman and the arbitrator appointed by you, whose decision shall be final and binding between the parties and shall not be questioned in any court of law.” The High Court concluded that “Petitioners have invoked arbitration vide notice dated 23.03.2021. The arbitration agreement between the parties and invocation of arbitration are not disputed by the respondents. Hence, these petitions deserve to be allowed. However, contention of petitioners to appoint Arbitrator of their choice is rejected, as no party can be permitted to unilaterally appoint an Arbitrator, as the same would defeat the purpose of unbiased adjudication of dispute between the parties.”

IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 593 OF 2021 Arising out of SLPNo. 16018 APPELLANT STATE OF RAJASTHAN & ANR CRIMINAL APPEAL NO. 594 OF 2021 Arising out of SLPNo.50121 D.No. 71919 STATE OF RAJASTHAN JUDGMENT SANJAY KISHAN KAUL J Indra Devi the appellant is the complainant in FIR No.80 dated 23.02.2011 registered under Sections 420 467 468 471 120B of the IPC and Sections 3(1)(4) 3(15) 3(5) of the Scheduled Caste & Scheduled Tribe Prevention of Atrocities) Act at P.S. Kotwali Distt. Barmer. It was alleged that she and her husband Bhanwar Lal purchased two plots in Khasra No.1179 03 located in Distt. Barmer. Out of these two plots one plot was sold to one Megharam while another plot was sold to one Chetan Choudhary In the plot purchased in the name of her husband a residential house and shops are stated to have been made. Megharam is alleged to have tampered with and fabricated the agreement with the intention to defraud This was allegedly done in collusion with the then executive officer of the Municipality one Surender Kumar Mathur and “the concerned clerk and others” by enlarging the dimensions of the plot which have been sold to him with the intention to grab the land and house occupied by the complainant and her husband. The Khasra number is also alleged to have been changed from 1179 03 to 1143 04. This fact is stated to have come to the notice of the complainant only when they were served with a court notice when they were in physical possession of the plot with the house and the shop. Her husband is stated to have gone to Jaipur for treatment of cancer. The accused persons are thus alleged to have committed the offences of fraudulently making a scheduled caste women her cancer diagnosed husband and other family members homeless. It may be noted that Respondent No.2 herein Yogesh Acharya was not named in the FIR but apparently he is stated to be “the concerned clerk” In pursuance of the investigation a chargesheet was filed and charges were framed vide order dated 10.04.2012 against Megharam. Once again Respondent No.2 was not named in the chargesheet but a reference was made to Megharam acting in collusion with “co accused persons” The records placed before us do not reflect how Respondent No.2 was exactly roped in but suffice to say Respondent No.2 moved an application under Section 197 of the CrPC before the trial court stating that he was a public servant and what he did in respect of allotment of lease that was executed in favour of Megharam was done during the course of his official duty and thus he was entitled to protection under the aforementioned provision. He also sought to assail the chargesheet as the same had been filed without obtaining sanction of the competent authority under Section 197 of the CrPC. The trial court dismissed the application vide order dated 10.08.2017 while noticing that Respondent No.2 had not been mentioned in the FIR. It was opined that it was the duty of Respondent No.2 to bring irregularities to the knowledge of the competent officers i.e. Megharam had mentioned the wrong Khasra number in the lease but no documents of ownership of the land were produced. The trial court was of the view that had the discrepancies been brought to the knowledge of the competent officers by Respondent No.2 the disputed lease would not have been issued. The result of the failure to do so caused the forged lease to be prepared. Respondent No.2 had also drafted the disputed lease in which he failed to mention necessary details. It was thus opined that Respondent No.2 was liable to be prosecuted against for having committed criminal offence to procure a forged lease. What Respondent No.2 did was held not to be done by the public servant in discharge of his official duty and thus protection under Section 197 of the CrPC would not come to his aid Respondent No.2 thereafter filed a Crl. Misc. Petition No.3138 2017 under Section 482 of the CrPC before the High Court of Judicature at Jodhpur assailing the said order of the trial court. The High Court vide impugned order dated 03.10.2017 allowed the petition. It was opined that the case was similar to the one of Devi Dan v. State of Rajasthan1. The High Court had opined therein that sanction under Section 197 of the CrPC was required before triggering any prosecution against the Station House Officer for filing failing to file an FIR and for other criminal acts committed during the discharge of his duties. The complainant aggrieved by the said judgment has approached this court by filing a special leave petition. The State has also filed an SLP. Leave was granted in both the matters The appellant contended before us that the involvement of Respondent No.2 only came to light during investigation. He had failed to bring the irregularities to the knowledge of his superiors which was instrumental in issuing the forged lease. Thus he had conspired with his superiors in dishonestly concealing the forgery and intentionally omitting mentioning the date of the proceedings on the order sheet. Such action of forging documents would not be considered as an act conducted in the course of his official duties and thus Section 197 of the CrPC would not give protection to Respondent No.2. 1 Crim. Misc. Pet. No.2177 2013 decided on 10.10.2014 7. On the other hand Respondent No.2 endeavoured to support the impugned judgment of the High Court by emphasising that in FIR only Megharam alongwith some unnamed officials were mentioned. Surender Kumar Mathur the Executive Officer of the Nagar Palika had filed a petition under Section 482 of the CrPC relating to the same transaction and the High Court had granted him protection under Section 197 of the CrPC vide order dated 22.02.2018. The conduct of putting his initials was held to be an act done in discharge of his duties. Similarly Sandeep Mathur a Junior Engineer who was part of the same transaction was granted protection by the Sessions Court vide order dated 19.03.2020 once again under the same provision i.e. Section 197 of the CrPC. Both the orders remained unchallenged by the complainant and the State. Further it has been argued that Respondent No.2 was simply carrying out his official duty which is apparent from the work allotted to him that pertained to allotment regularisation conversion of agricultural land and all kinds of work relating to land and conversion. The application of Megharam was routed through the office and the proceedings show that the file was initially put up before the Executive Officer who directed inspection which was carried out by the Junior Engineer. Thereafter file was placed before the Executive Officer again and only then was it signed by the Municipal Commissioner. The two key people involved in the process had already been granted protection and thus Respondent No.2 herein who was merely a Lower Division Clerk could not be denied similar protection Learned counsel for Respondent relied upon the judgments of this Court in B. Saha & Ors. Vs. M.S. Kochar2 and State of Maharashtra Vs. Dr Budhikota Subbarao3 to contend that Section 197 of the CrPC ought to be read in a liberal sense for grant of protection to the public servant with respect to actions which though constitute an offence are “directly and reasonably” connected with their official duties We have given our thought to the submissions of learned counsel for the parties. Section 197 of the CrPC seeks to protect an officer from unnecessary harassment who is accused of an offence committed while acting or purporting to act in the discharge of his official duties and thus prohibits the court from taking cognisance of such offence except with the previous sanction of the competent authority. Public servants have been treated as a special category in order to protect them from malicious or vexatious prosecution. At the same time the shield cannot protect corrupt officers and the provisions must be construed in such a manner as to advance the cause of honesty justice and good governance. 4 SCC 177 33 SCC 339 43 SCC 64 to find out whether the alleged offence is committed “while acting or purporting to act in the discharge of his official duty” the yardstick to be followed is to form a prima facie view whether the act of omission for which the accused was charged had a reasonable connection with the discharge of his duties. [See State of Maharashtra Vs. Dr. Budhikota Subbarao]5. The real question therefore is whether the act committed is directly concerned with the official duty 10. We have to apply the aforesaid test to the facts of the present case. In that behalf the factum of Respondent No.2 not being named in the FIR is not of much significance as the alleged role came to light later on. However what is of significance is the role assigned to him in the alleged infraction i.e. conspiring with his superiors. What emerges therefrom is that insofar as the processing of the papers was concerned Surendra Kumar Mathur the Executive Officer had put his initials to the relevant papers which was held in discharge of his official duties. Not only that Sandeep Mathur who was part of the alleged transaction was also similarly granted protection. The work which was assigned to Respondent No.2 pertained to the subject matter of allotment regularisation conversion of agricultural land and fell within his domain of work. In the processing of application of Megharam the file was initially put up to the Executive Officer who directed the inspection and the inspection was carried out by the Junior Engineer and only thereafter the Municipal Commissioner signed the file. The result is that the superior officers who have dealt with the file have been granted protection while the clerk who did the paper work i.e. Respondent No.2 has been denied similar protection by the trial court even though the allegation is of really conspiring with his superior officers. Neither the State nor the complainant appealed against the protection granted under Section 197 of the CrPC qua these two 11. We are thus not able to appreciate why a similar protection ought not to be granted to Respondent No.2 as was done in the case of the other two officials by the Trial Court and High Court respectively. The sanction from competent authority would be required to take cognisance and no sanction had been obtained in respect of any of the officers. It is in view thereof that in respect of the other two officers the proceedings were quashed and that is what the High Court has directed in the present case as well In view of the aforesaid the appeals are dismissed leaving the parties to bear their own costs [SANJAY KISHAN KAUL [HEMANT GUPTA JULY 23 2021

Pre-arrest bail is denied to the accused ,even if there is FIR of the same incident as a defence : Patna High court

The pre-arrest bail granted in anticipation of arrest has to function like any other order granting bail till an order of conviction or till an assenting direction is passed. A single bench comprising of Justice Ahsanuddin Amanullah adjudicating the matter of Lalan Yadav v. The State of Bihar (CRIMINAL MISCELLANEOUS No. 35568 of 2020 ) dealt with an issue of whether to grant bail to the Petitioner or not. In the present case, the Petitioner is apprehending arrest u/s 302/34 of the Indian Penal Code and u/s 27 Arms Act, 1959. The Petitioner is alleged that they had come to the marketplace and had started firing in the air and threatening that they will do whatever they want and thereafter they had called other co-accused and in the indiscriminate firing the informant’s son was injured and died on way to the hospital. It was submitted by the Petitioner that there is no specific allegation as to whose firing hit the deceased and the allegation is only general and omnibus of firing.  It was also submitted that the petitioners are brothers and because there was a conflict between two castes, they have been falsely implicated and they had no role in the incident. It was further submitted that because of previous enmity they have been implicated. The Petitioners submitted that the mother of the Petitioners has also filed a case for the same incident. The Opposite party contended that there is no occasion for the informant to specifically name the petitioners as no father would save the murderer of his son by implicating persons who are innocent. Also, it was submitted that the false implication could have been there only when the real culprit was also made accused even though they may have been unknown, but in the present case-specific allegation is against the present two petitioners with regard to their role in starting the whole episode and also making indiscriminate firing and even if it is assumed that the firing made by the petitioners may not have hit the deceased, the same is irrelevant as they were very much party to the firing and thus, the responsibility for the death has to be equally taken by all the accused, including the petitioners. It was also submitted that “even the FIR lodged by the mother of the petitioners is clearly an afterthought, to create a defence, as the same has been lodged on 16.03.2020, though the incident is said to have taken place on 10.03.2020 and the present case, as well as the police case, have been lodged on the same day of the incident, i.e., 10.03.2020.”

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No.355620 Arising Out of PS. Case No. 99 Year 2020 Thana GAYA MUFASIL District Gaya Lalan Yadav aged about 40 yearsSon of Sidheshwar Yadav 2. Guddu Yadav @ Army @ Guddu Kumar aged about 35 yearsSon of Sidheshwar Yadav District Gaya Both petitioner no. 1 and 2 are resident of Village Budhgere P.S. Moffasil The State of Bihar ... Petitioner s ... Opposite Party s For the Petitioner s For the State CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH Mr. S S P Yadav Advocate Mr. Sanjay Kumar Tiwary APP Date : 22 06 2021 The matter has been heard via video conferencing 2. Heard Mr. S S P Yadav learned counsel for the petitioners and Mr. Sanjay Kumar Tiwary learned Additional Public Prosecutorfor the 3. The petitioners apprehend arrest in connection with Moffasil PS Case No. 920 dated 10.03.2020 instituted under Sections 302 34 of the Indian Penal Code and 27 of the Patna High Court CR. MISC. No.355620 dt.22 06 2021 Arms Act 1959 4. The allegation against the petitioners is that they had come to the market place and had started firing in the air and threatening that they will do whatever they want and thereafter they had called other co accused and in the indiscriminate firing the informant’s son was injured and died on way to hospital 5. Learned counsel for the petitioners submitted that there is no specific allegation as to whose firing hit the deceased and the allegation is only general and omnibus of firing. It was submitted that the mother of the petitioners has also filed a case for the same incident. Learned counsel submitted that the police have also filed a third case relating to the incident. Learned counsel submitted that the petitioners are brothers and because there was conflict between two castes they have been falsely implicated and they had no role in the incident. It was further submitted that because of previous enmity they have been 6. Learned APP submitted that there is no occasion for the informant who is the father of the deceased to specifically name the petitioners as no father would save the murderer of his son by only implicating persons who are innocent. It was Patna High Court CR. MISC. No.355620 dt.22 06 2021 submitted that the false implication could have been there only when the real culprit was also made accused even though they may have been unknown but in the present case specific allegation is against the present two petitioners with regard to their role in starting the whole episode and also making indiscriminate firing and even if it is assumed that the firing made by the petitioners may not have hit the deceased the same is irrelevant as they were very much party to the firing and thus the responsibility for the death has to be equally taken by all the accused including the petitioners. He submitted that even the FIR lodged by the mother of the petitioners is clearly an afterthought to create a defence as the same has been lodged on 16.03.2020 though the incident is said to have taken place on 10.03.2020 and the present case as well as the police case have been lodged on the same day of the incident i.e. 7. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties the Court is not inclined to grant pre arrest bail to the petitioners 8. Accordingly the application stands dismissed 9. However in view of submission of learned counsel for the petitioners it is observed that if the petitioners appear Patna High Court CR. MISC. No.355620 dt.22 06 2021 before the Court below and pray for bail the same shall be considered on its own merits in accordance with law without being prejudiced by the present order (Ahsanuddin Amanullah J

High court allows to quash the proceedings due to absence of said allegation in FIR: Karnataka High court

The criminal petition is filed under section 482 of the CPC( saving inherent powers of high court) to quash the proceedings against petitioner on the file of Additional Metropolitan Magistrate, Bengaluru for the offence punishable under section 498-A of IPC ( husband or relatives of husband of women subjecting her to cruelty) 1960 and section 3(penalty for giving or taking dowry) and 4(penalty for demanding dowry) of dowry prohibition Act, 1961 by the petitioner. And the petition is allowed by the High court of Karnataka through the learned bench led by Honorable MR. Justice H P Sandesh in the case of MR. Nishtala Ram Mohan and MRS. Vijay Lakshmi vs State of Karnataka (criminal petition no. 3207 of 2018) on 20th January 2022 Brief facts of the case are that the respondent, wife of petitioner lodged complaint against the petitioner ( husband) and also against the relatives of the husband, son of the petitioner, alleging that she was subjected to cruelty and was harassed to bring dowry from her father. Then police registered case against the petitioner and also against the relatives of the petitioner . After investigation, they have filed charge sheet against the petitioners and their son for the offences punishable under Section 498-A of Indian Penal Code, 1860 and under Sections 3 and 4 of the Dowry Prohibition Act, 1961. Being aggrieved by the filing of charge-sheet, petitioners are before this Court. Arguments presented by the learned counsel appearing on behalf petitioner that the allegations made in the charge-sheet filed against the petitioners is that the petitioners who are residing in Hyderabad came to Bengaluru and during their stay with the informant and her husband, petitioners abused her with filthy language and demanded a car and a house as dowry, except the said allegation there is no allegation against the petitioners and in the absence of the said allegation in the First Information Report, this charge-sheet filed against the petitioners is not sustainable under the law. Arguments presented by the learned counsel appearing on behalf of respondent that having regard to the material available, the police have rightly filed charge-sheet against the petitioners, hence he also presents that the charge-sheet filed against the petitioners is legal and warrants no interference. Learned High Court Government Pleader for respondent-state would justify the charge-sheet filed against the petitioners. After hearing both the counsels and looking into the facts of the case and considering all the records presented before the honorable court by the counsels that the column no. 7 of the charge sheet indicates that the only allegation against the petitioners is that, when they came from Hyderabad to Bengaluru to reside with the informant and their son, she was subjected to cruelty and they demanded a car and house from her father as dowry. This allegation is not forthcoming in the First Information Report, which is the foundation for filing of charge-sheet. In the absence of such an allegation in the First Information Report and also that the informant was not residing with the petitioners, the charge-sheet filed against petitioners is not sustainable under law. Hence, the petition is allowed by the court to quash the proceedings against the petitioners.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF JANUARY 2022 THE HON’BLE MR. JUSTICE HEMANT CHANDANGOUDAR CRIMINAL PETITION NO.3207 OF 2018 1. MR. NISHTALA RAM MOHAN S O. LATE N R SHARMA AGED ABOUT 77 YEARS. 2. MRS. VIJAYA LAKSHMI W O. NISHTALA RAM MOHAN AGED ABOUT 60 YEARS. PETITIONERS 1 AND 2 ARE RESIDING AT NO.18 202 SHIVANANDA STREET BHARATH NAGAR PRAHALADPURAM VISAKHAPATNAM ANDHRA PRADESH 530 027. ... PETITIONERS BY SMT. PRAMILA NESARGI SENIOR ADVOCATE FOR SRI. MUNISWAMY GOWDA S.G.) 1. STATE OF KARNATAKA BY JEEVAN BHIMANAGAR POLICE STATION BENGALURU CITY BENGALURU REPRESENTED BY ADDITIONAL PUBLIC PROSECUTOR HIGH COURT BUILDING 2 HIGH COURT OF KARNATAKA BENGALURU 560 001. 2. DR. TARA.D AGED ABOUT 37 YEARS D O DR. G.N. DHANANJAY REDDY W O. VIKRAMADITYA N.S. RESIDING AT NO.67 5TH MAIN 1ST CROSS KUVEMPU LAYOUT GUBBI CROSS KOTTHANOOR POST BENGALURU 560 077. RESPONDENTS BY SRI. RENUKARADHYA R.D. HCGP FOR R1 SRI. PALLAVA. R ADVOCATE FOR R2) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE BY THE ADVOCATE FOR THE PETITIONERS PRAYING THAT THIS HON’BLE COURT MAY BE PLEASED TO QUASH THE PROCEEDING IN C.C.NO.52646 OF 2017 ON THE FILE OF X MAGISTRATE BENGALURU IN CRIME NO.274 OF 2015 OF JEEVAN BHIMA NAGAR POLICE STATION BENGALURU. THIS CRIMINAL PETITION COMING ON ADMISSION THIS DAY THE COURT MADE THE FOLLOWING: O R D E R The second respondent lodged complaint against the petitioners who are her in laws and also against her husband son of the petitioners alleging that she was subjected to cruelty and was harassed to bring dowry from her father. Police registered case against the petitioners and the first accused. After investigation they have filed charge 3 sheet against the petitioners and their son for the offences punishable under Section 498 A of Indian Penal Code 1860 and under Sections 3 and 4 of the Dowry Prohibition Act 1961. Being aggrieved by the filing of charge sheet petitioners are before this Court. 2. Smt. Pramila Nesargi learned Senior Counsel appearing for petitioners would submit that the allegations made in the charge sheet filed against the petitioners is that the petitioners who are residing in Hyderabad came to Bengaluru and during their stay with the informant and her husband petitioners abused her with filthy language and demanded a car and a house as dowry except the said allegation there is no allegation against the petitioners and in the absence of the said allegation in the First Information Report this charge sheet filed against the petitioners is not sustainable under the law. 3. On the other hand learned counsel for respondent No.2 would submit that having regard to the material available the police have rightly filed charge sheet against the petitioners hence he submits that the charge sheet filed 4 against the petitioners is legal and warrants no interference. Learned High Court Government Pleader for respondent state would justify the charge sheet filed against the 4. I have considered the submissions made by learned counsel for the parties. 5. Column No.7 of the charge sheet indicates that the only allegation against the petitioners is that when they came from Hyderabad to Bengaluru to reside with the informant and their son she was subjected to cruelty and they demanded a car and house from her father as dowry. This allegation is not forthcoming in the First Information Report which is the foundation for filing of charge sheet. In the absence of such an allegation in the First Information Report and also that the informant was not residing with the petitioners the charge sheet filed against petitioners is not sustainable under law. Hence I pass the following: O R D E R i) Criminal Petition is allowed 5 ii) The impugned proceedings in C.C.No.52646 of 2017 on the file of the X Additional Chief Metropolitan Magistrate Mayo Hall Bengaluru in Crime No.2715 of Jeevan Bhimanagar Police Station Bengaluru for the offences punishable under Section 498 A & 506 of Indian Penal Code 1860 and Sections 3 and 4 of Dowry Prohibition Act 1961 is hereby quashed insofar as it relates to the petitioners accused 2 and 3. Sd

Offenders who show aspiration to live as law abiding citizens should be encouraged through parole: High Court of Himachal Pradesh

The purpose of prison sentences is to reform convicts and not to punish them. For this reason in cases where a convict is not a threat to society and shows genuine desire to reform and maintain societal links, parole should be encouraged for short periods of time. The judgement passed by a bench consisting of Justice Tarlok Singh Chauhan and Chander Bhusan Barowalia of the Himachal Pradesh High court in the case of Arun Kumar v. State of Himachal Pradesh and others [CWP No. 4962 of 2020] on the 4th of June 2021 granted 28 day parole to a man sentenced to life imprisonment. The petitioner, Arun Kumar was convicted for murder by Additional Sessions Judge-1, Kangra at Dharamshala on 2nd December 2017 and sentenced to life imprisonment with a fine of Rs 10,000. He requested for parole which was swiftly turned down by the respondents on the grounds that he was convicted for a heinous and serious offence. The court observed that the granting of bail is not right vested with the prisoner but a privilege available to him upon fulfilling certain conditions. Furthermore this discretionary power is meant to be exercised by the authorities only in consonance with relevant rules and regulations. The case of Asfaq v State of Rajasthan [(2017) 15 SCC 55] was cited, where it was held that although a convict must remain in jail through his sentence, his release for a short period must be considered as an opportunity to solve personal and family problems and to maintain his societal links. It was also noted this was the only crime that the petitioner had ever committed and that he was showing efforts in reformation, implying that he wasn’t a hardened criminal or a serial offender. As a result of this the court held that being convicted of a serious offence by itself should not be the sole reason to deny parole to a convict for a short period of time.

Hig h C o urt of H.P on 06 06 CIS IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. CWP No. 49620 Decided on: 04.06.2021Arun Kumar …PetitionerVersus State of Himachal Pradesh and others …Respondents_____________________________________________________________Coram:Hon’ble Mr. Justice Tarlok Singh Chauhan Judge.Hon’ble Mr. Chander Bhusan Barowalia Judge.Whether approved for reporting 1 NoFor the Petitioner : Mr. Malay Kaushal Advocate.For the Respondents: Mr. Ashok Sharma A.G. with Mr. Shiv PalManhans Addl. A.G. Mr. J. S. Guleria andMr. Bhupinder Thakur Dy. A.Gs. for therespondents State.(Through Video Conferencing).Tarlok Singh Chauhan JudgeThe request made by the petitioner for releasing himon parole has been turned down by the respondents constraining him to file the instant petition for the grant offollowing substantive reliefs: i) That this Hon’ble Court may kindly be pleased to issuethe writ of mandamus whereby the respondents moreparticularly respondent No.2 may kindly be directed torelease the petitioner on parole in consonance to theinitial application request of the petitioner.1 Whether reporters of the local papers may be allowed to see the judgment yes Hig h C o urt of H.P on 06 06 CIS 2ii) That in the alternative the Hon’ble Court may kindly bepleased to issue a writ of mandamus whereby therespondents may kindly be directed to submit theverification report afresh pertaining to the petitionerinitial first application for release on parole strictly interms of the prescribed Rules as framed under theHimachal Pradesh Good Conduct PrisonersAct 1968.2.The respondents have opposed the petition by filingreply wherein it has been submitted that the petitioner has beenconvicted for offence punishable under Section 302 IPC by thelearned Additional Sessions Judge 1 Kangra at Dharamshala H.P. on 02.12.2017 and sentenced to life imprisonment with fineof Rs.10 000 only and due to the non recommendation of the District Magistrate the parole case ofthe petitioner convict cannot be considered as therecommendation of the District Magistrate is mandatory as perthe Section 6 of the Act which specifically provides that convictis entitled to be released on parole upto the satisfaction of thecompetent authorities and that the local public and local policehave raised objection for released of the petitioner convict onparole.3.Now the moot question is whether the request forgrant of parole can be rejected only on the ground that thepetitioner has been convicted for a serious and heinous offence. Hig h C o urt of H.P on 06 06 CIS 34.It is more than settled that the grant of remission orparole is not a right vested with the prisoner. It is a privilegeavailable to the prisoner on fulfilling certain conditions. This is adiscretionary power which has to be exercised by the authoritiesconferred with such powers under the relevant rules regulations.The Court cannot exercise these powers though once thepowers are exercised the Court may hold that the exercise ofpowers is not in accordance with rules. 5.The Hon’ble Supreme Court has considered in detailthe nature object purpose and parameters for grant of parolesubject to which parole can be granted in Asfaq versus Stateof Rajasthan and others 15 SCC 55 wherein it wasobserved as under:“14. Furlough on the other hand is a brief release fromthe prison. It is conditional and is given in case of longterm imprisonment. The period of sentence spent onfurlough by the prisoners need not be undergone by himas is done in the case of parole. Furlough is granted as agood conduct remission. 15. A convict literally speaking must remain in jail forthe period of sentence or for rest of his life in case he is alife convict. It is in this context that his release from jailfor a short period has to be considered as an opportunityafforded to him not only to solve his personal and familyproblems but also to maintain his links with society.Convicts too must breathe fresh air for at least some timeprovided they maintain good conduct consistently duringincarceration and show a tendency to reform themselves Hig h C o urt of H.P on 06 06 CIS 4and become good citizens. Thus redemption andrehabilitation of such prisoners for good of societies mustreceive due weightage while they are undergoingsentence of imprisonment.16. This Court through various pronouncements has laiddown the differences between parole and furlough few ofwhich are as under:(i) Both parole and furlough are conditional release.(ii) Parole can be granted in case of short termimprisonment whereas in furlough it is granted in caseof long term imprisonment.(iii) Duration of parole extends to one month whereasin the case of furlough it extends to fourteen daysmaximum.(iv) Parole is granted by Divisional Commissioner andfurlough is granted by the Deputy Inspector General ofPrisons.(v) For parole specific reason is required whereasfurlough is meant for breaking the monotony ofimprisonment.(vi) The term of imprisonment is not included in thecomputation of the term of parole whereas it is viceversa in furlough.(vii) Parole can be granted number of times whereasthere is limitation in the case of furlough.(viii) Since furlough is not granted for any particularreason it can be denied in the interest of the society.{See State of Maharashtra and Another v. SureshPandurang Darvakar4 SCC 776 and State ofHaryana and Others v. Mohinder Singh 3 SCC394.17. From the aforesaid discussion it follows that amongstthe various grounds on which parole can be granted themost important ground which stands out is that aprisoner should be allowed to maintain family and socialties. For this purpose he has to come out for some timeso that he is able to maintain his family and social Hig h C o urt of H.P on 06 06 CIS 5contact. This reason finds justification in one of theobjectives behind sentence and punishment namely reformation of the convict. The theory of criminology which is largely accepted underlines that the mainobjectives which a State intends to achieve by punishingthe culprit are: deterrence prevention retribution andreformation. When we recognise reformation as one ofthe objectives it provides justification for letting of eventhe life convicts for short periods on parole in order toafford opportunities to such convicts not only to solvetheir personal and family problems but also to maintaintheir links with the society. Another objective which thistheory underlines is that even such convicts have right tobreathe fresh air al beit for periods. These gestures onthe part of the State along with other measures go along way for redemption and rehabilitation of suchprisoners. They are ultimately aimed for the good of thesociety and therefore are in public interest.18. The provisions of parole and furlough thus providefor a humanistic approach towards those lodged in jails.Main purpose of such provisions is to afford to them anopportunity to solve their personal and family problemsand to enable them to maintain their links with society.Even citizens of this country have a vested interest inpreparing offenders for successful re entry into society.Those who leave prison without strong networks ofsupport without employment prospects without afundamental knowledge of the communities to which theywill return and without resources stand a significantlyhigher chance of failure. When offenders revert tocriminal activity upon release they frequently do sobecause they lack hope of merging into society asaccepted citizens. Furloughs or parole can help prepareoffenders for success. Hig h C o urt of H.P on 06 06 CIS 619. Having noted the aforesaid public purpose in grantingparole or furlough ingrained in the reformation theory ofsentencing other competing public interest has also tobe kept in mind while deciding as to whether in aparticular case parole or furlough is to be granted or not.This public interest also demands that those who arehabitual offenders and may have the tendency tocommit the crime again after their release on parole orhave the tendency to become threat to the law and orderof the society should not be released on parole. Thisaspect takes care of other objectives of sentencing namely deterrence and prevention. This side of the coinis the experience that great number of crimes arecommitted by the offenders who have been put back inthe street after conviction. Therefore while deciding as towhether a particular prisoner deserves to be released onparole or not the aforesaid aspects have also to be keptin mind. To put it tersely the authorities are supposed toaddress the question as to whether the convict is such aperson who has the tendency to commit such a crime orhe is showing tendency to reform himself to become agood citizen. 20. Thus not all people in prison are appropriate for grantof furlough or parole. Obviously society must isolatethose who show patterns of preying upon victims. Yetadministrators ought to encourage those offenders whodemonstrate a commitment to reconcile with society andwhose behaviour shows that aspire to live as law abidingcitizens. Thus parole program should be used as a tool toshape such adjustments.21. To sum up in introducing penal reforms the Statethat runs the administration on behalf of the society andfor the benefit of the society at large cannot be unmindful Hig h C o urt of H.P on 06 06 CIS 7of safeguarding the legitimate rights of the citizens inregard to their security in the matters of life and liberty. Itis for this reason that in introducing such reforms theauthorities cannot be oblivious of the obligation to thesociety to render it immune from those who are prone tocriminal tendencies and have proved their susceptibilityto indulge in criminal activities by being found guiltyof having perpetrated a criminal act. One of thediscernible purposes of imposing the penalty ofimprisonment is to render the society immune from thecriminal for a specified period. It is therefore understandable that while meting out humane treatmentto the convicts care has to be taken to ensure thatkindness to the convicts does not result in cruelty to thesociety. Naturally enough the authorities would beanxious to ensure that the convict who is released onfurlough does not seize the opportunity to commitanother crime when he is at large for the time beingunder the furlough leave granted to him by way of ameasure of penal reform.22. Another vital aspect that needs to be discussed is asto whether there can be any presumption that a personwho is convicted of serious or heinous crime is to be ipsofacto treated as a hardened criminal. Hardened criminalwould be a person for whom it has become a habit or wayof life and such a person would necessarily tend tocommit crimes again and again. Obviously if a personhas committed a serious offence for which he isconvicted but at the same time it is also found that it isthe only crime he has committed he cannot becategorized as a hardened criminal. In his caseconsideration should be as to whether he is showing thesigns to reform himself and become a good citizen orthere are circumstances which would indicate that he has Hig h C o urt of H.P on 06 06 CIS 8a tendency to commit the crime again or that he wouldbe a threat to the society. Mere nature of the offencecommitted by him should not be a factor to deny theparole outrightly. Wherever a person convicted hassuffered incarceration for a long time he can be grantedtemporary parole irrespective of the nature of offence forwhich he was sentenced. We may hasten to put a riderhere viz. in those cases where a person has beenconvicted for committing a serious office the competentauthority while examining such cases can be welladvised to have stricter standards in mind while judgingtheir cases on the parameters of god conduct habitualoffender or while judging whether he could be consideredhighly dangerous or prejudicial to the public peace andtranquility etc.23. There can be no cavil in saying that a society thatbelieves in the worth of the individuals can have thequality of its belief judged at least in part by the qualityof its prisons and services and recourse made available tothe prisoners. Being in a civilized society organized withlaw and a system as such it is essential to ensure forevery citizen a reasonably dignified life. If a personcommits any crime it does not mean that by committinga crime he ceases to be a human being and that he canbe deprived of those aspects of life which constitutehuman dignity. For a prisoner all fundamental rights arean enforceable reality though restricted by the fact ofimprisonment. {See Sunil Batrav. State3 SCC 488 Maneka Gandhi v. Union of India(1978) 1 SCC 248 and Charles Sobraj v. SuperintendentCentral Jai Tihar New Delhi 4 SCC 104.24. It is also to be kept in mind that by the time anapplication for parole is moved by a prisoner he wouldhave spent some time in the jail. During this period Hig h C o urt of H.P on 06 06 CIS 9various reformatory methods must have been applied.We can take judicial note of this fact having regard tosuch reformation facilities available in modern jails. Onewould know by this time as to whether there is a habit ofrelapsing into crime in spite of having administeredcorrectional treatment. This habit known as “recidivism”reflects the fact that the correctional therapy has notbrought in the mind of the criminal. It also shows thatcriminal is hardcore who is beyond correctional therapy. Ifthe correctional therapy has not made in itself in aparticular case such a case can be rejected on theaforesaid ground i.e. on its merits.” 6. It is evidently clear from the aforesaid judgment thatthe Hon’ble Supreme Court itself emphasized on the aspect ofrehabilitation continuity of life and constructive hopes forconvicts and prisoners and for the reformation even while theyare undergoing incarceration. 7.Judged in light of the aforesaid exposition of law theonly ground taken by the respondents to reject the request ofparole is that the petitioner has been convicted for a serious andheinous offence and nothing more cannot itself be a ground fordenying the petitioner parole in accordance with the provisionsof H.P. Good Conduct PrisonersAct 1968.8.Before parting it needs to be observed that as perthe instructions imparted by the District Magistrate Kangra atDharamshala the parole of the petitioner has been rejected onthe objection of the concerned Ward Member Gram Panchayat Hig h C o urt of H.P on 06 06 CIS 10and SHO P.S. Indora and SDPO Nurpur. Even otherwise suchquestions have already been considered and answered in thejudgment referred to here in above which clearly provides thatit is only cases where there is some material before the Court parole should be extended by taking a humanistic approach soas to afford the convict an opportunity to solve his personal andfamily problems and enable him to maintain his links with thesociety.9.Apart from the above we may at this stage takenote of a recent judgment of Hon’ble Supreme Court in casetitled as Shor Versus State of Uttar Pradesh and Anr. inWrit PetitionNo. 520 decided on August 05 2020 wherein the only ground for opposing release of thepetitioner therein on probation was that he had been convictedfor grave and serious offences and in case he is released therewould be a chance that he may repeat the offences which wouldsend a negative message against the justice system in thesociety. The Hon’ble Supreme Court has also held as under:“Pursuant to our order dated 30.10.2017 an order dated22.01.2018 has been passed in which it is recorded thatthough the petitioner has undergone 28 years 08 monthsand 21 days without remissionhaving undergone imprisonment of 37 years01 month and 18 days yet premature release cannot begiven in the facts of this case as the prisoner along with20 co accused committed the murder of 11 persons withdeadly weapons and injured others. Hig h C o urt of H.P on 06 06 CIS 11This being the case the order states “ premature releaseof this kind of prisoner would send a negative messageagainst the justice system in the society”. It was thenalso mentioned that Senior Superintendent of Police andthe District Magistrate have confirmed that the prisoner isnot incapacitated from committing crime. Section 2 of the United Provinces Prisoners Release on Probation Act 1938states:“2. Power of Government to release by licence onconditions imposed by them. Notwithstanding anythingcontained in Section 401 of the Code of CriminalProcedure 1898where a person isconfined in prison under a sentence of imprisonmentand it appears to the State Government from hisantecedents and his conduct in the prison that he islikely to abstain from crime and lead a peaceable life ifhe is released from prison the State Government mayby licence permit him to be released on condition thathe be placed under the supervision or authority of aGovernment Officer or of a person professing the samereligion as the prisoner or such secular institution orsuch society belonging to the same religion as theprisoner as may be recognized by the StateGovernment for this purpose provided such otherperson institution or society is willing to take charge ofhim.” It is clear that under this Section what has to be seen bythe State Government isantecedentsconduct inthe prison andthe person if released is likely toabstain from crime and lead a peaceable life. If havingregard to these factors the person is released the StateGovernment may do so on conditions stated in theSection. Hig h C o urt of H.P on 06 06 CIS 12A reading of the order dated 22.01.2018 shows that theJoint Secretary Government of U.P. has failed to apply hismind to the conditions of Section 2 of the U.P. Act. Merelyrepeating the fact that the crime is heinous and thatrelease of such a person would send a negative messageagainst the justice system in the society are factors dehors Section 2. Conduct in prison has not been referred toat all and the Senior Superintendent of Police and theDistrict Magistrate confirming that the prisoner is not“incapacitated” from committing the crime is nottantamount to stating that he is likely to abstain fromcrime and lead a peaceable life if released from prison. 10.The issue in question is otherwise squarely coveredby the judgment rendered by a Co ordinate Bench of this Courtin CMP No. 39720 in CWP No. 29319 titled‘Mrs. Har Dei versus State of Himachal Pradesh & others’ decided on 03.06.2020 and the judgment passed by this Benchin CWP No. 4120 titled Mrs. Kavita Thakur versusState of H.P. and others decided on 25.06.2020 CWP No.5218 titled Jagat Ram Versus State of HimachalPradesh and others decided on 26.06.2012 and CWP No.6620 titled Sajid versus State of HimachalPradesh and others decided on 29.06.2020.11.Similar reiteration of law can also be found in thejudgments rendered by Division Bench of this Court in CWP No.16620 titled as Paramjit Singh @ Pamma vs. Stateof H. P. & Ors. decided on 07.08.2020 and CWP No. 1497 of Hig h C o urt of H.P on 06 06 CIS 132020 titled as Anil Kumar vs. State of H. P. & Ors. decidedon 07.10.2020.12. In such circumstances we are left with no otheroption but to allow the present petition. Accordingly the presentpetition is allowed and the respondents are directed to releasethe petitioner on parole for a period of 28 days after takingrequisite personal and surety bonds. 13. However before parting it is clarified that in casethe convict violates or breaches any condition of parole order orcreate law and order problem then it shall be a factor to cancelthe parole so granted by this Court and shall also be a relevantfactor for considering the future request of the convict made inthis regard.14.The writ petition is disposed of as aforesaid leavingthe parties to bear their own costs. Pending application(s) if any also stand disposed of.Judge(Chander Bhusan Barowalia) 4th June 2021 Judge

Criminal Complaints should accompany an affidavit stating Complainant’s knowledge of its contents: Kerala High Court

If there is a complaint made to a magistrate then it is advisory that it should contain the affidavit along with it so as to strengthen the varsity of the complaint’s content. The decision was passed by the Hon’ble Court in consequence of false and frivolous allegations that were made in a complaint by certain complainants and they were found to be false post-investigation. The Hon’ble court clarified that attaching an affidavit is not a ground-rule but attaching the same strengthens the contents that the complainant in the complaint alleges held by Justice T.V.Anilkumar in Prasanth vs. C.V. Kuriakose and Anr [Crl. MC.No. 2560 of 2015]. While setting aside the investigation, Hon’ble Court relied upon Apex Courts ruling in Priyanka Srivastava & Anr. V. State of UP & Ors. Wherein directions were issued by the Apex Court to attach the affidavit in criminal complaints so as to verify its veracity and the genuineness of the allegations made in the complaint.  The Single Judge bench of Justice TV Anilkumar, while quashing the FIR observed that “it was rather not fair for the learned Magistrate to have entertained the complaint and directed investigation for the evident reason that the complaining party failed to submit a supporting affidavit affirming the allegations raised in Annexure – A complaint as behind true and correct.” In this petition learned Magistrate advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kinds of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. Finally, considering all the facts of the petition, all pending interlocutory applications are closed. Click here to read the judgement

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR TUESDAY THE 18TH DAY OF AUGUST 2020 27TH SRAVANA 1942 Crl.MC.No.2560 OF 2015 CRIME NO.380 2015 OF Thrikkakara Police Station Ernakulam AGED 35 YEARS S O SIVAN CHERIYAPUYTHENVEETTIL HOUSE KODUNGALLOOR THRISSUR DISTRICT SRI.ARUN PAUL JACOB RESPONDENTS DE FACTO COMPLAINANT & STATE S O VARHGESE SANKOORIKKAL HOUSE SANTHI NAGAR CHAKKARAPPARAMBU ERNAKULAM STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM 682031 R1 BY ADV. SRI.LINDONS C.DAVIS ADV.SRI. UDAYAKUMAR K.B.of Cr.P.C The contention of the petitioner is that even if the entire allegations against him are taken as true none of the offences in question can be said to have been made out under law. It is contended that since the authorities of hospitals where he is working have not preferred any Crl.M.C.No.25615 4 complaint to the authorities of law the allegation against him is liable only to be rejected as falsely made. According to him he is fully qualified and has all requisite certificates of eligibility for being employed as Clinical Embryologist in the hospitals. It is also contended that he has obtained Annexure C certificate of Doctorate in Philosophy in Animal Biotechnology from Prescott University London U.K. He also produced Annexure D certificate claiming it to be his Degree in Master of Science. He claims to have obtained Annexure E Master of Philosophy in Biotechnology from Bharathidasan University On the other hand the first respondent produced a series of documents contending that they are sufficient by themselves to substantiate that petitioner s certificates are all fabricated and he has not acquired Doctorate in Animal Biotechnology I heard the learned counsel for the Crl.M.C.No.25615 5 petitioner the first respondent and also the learned Public Prosecutor Having examined the nature of contentions raised by the parties it is quite natural for one to think that since the falsity or genuineness of the certificates relied on by the petitioner is a matter of controversy necessitating enquiry continuance of investigation pursuant to Annexure B FIR is only desirable. That apart one should not however lose sight of the other side of the picture also. Any investigation permitted to be held by the police authorities as to the authenticity or otherwise of the certificates in question pursuant to the complaint lodged by a member of the public will certainly affect not only the reputation but also the career prospects of the suspect in the crime. If the outcome of the investigation ultimately turns out to be in favour of the suspect no doubt by that time his Crl.M.C.No.25615 6 reputation as well as opportunity for employment might be ruined. It however does not mean that in all the cases wherever possession of requisite qualification or authenticity of certificates is in question investigation should be invariably withheld. It would only be a prudent approach if the judicial Magistrate concerned who forwards the complaint for registration and orders investigation into the crime ensures that the complaining person approaches him only with good sense of responsibility and also even preparedness to face the consequences if his allegations turn out at a later stage to be factually wrong or otherwise ill This position has been taken note of with utmost concern by the Honourable Apex Court which in one of its decisions insisted the judicial Magistrates entertaining complaints to make sure that the allegations made in the complaint are Crl.M.C.No.25615 7 genuine before it being forwarded for registration and investigation to the Police under Section 156(3) of Cr.P.C. This insistence came into vogue in the wake of the bald and frivolous allegations made by certain complainants turning out to be false in some cases at the later stage of the investigation. It was opined by the Honourable Apex Court that there existed the need for devising appropriate legal mechanism for holding the persons responsible for making false imputations. It was thus suggested that in order to confirm that only persons with sense of responsibility approach the court with honest complaints the learned Magistrate should insist the applicant to file affidavit along with the complaint in appropriate cases duly swearing that the imputations made in the complaint are factually true to the best of their knowledge information and belief. A rigid procedure demanding affidavit to accompany every Crl.M.C.No.25615 8 complaint is not what is intended. It is after all the discretion which the Magistrate may exercise in selected and deserving cases depending on the nature of allegations in the complaint and also facts and circumstances of each case In Priyanka Srivastava and anr. v. State of U.P. & ors.the Honourable Supreme Court held as follows In our considered opinion a stage has come in this country where S.156(3) CrPC applications are to be supported by an affidavit duly sworn b the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart in an appropriate case the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or under Art.226 of the Constitution of India. But it cannot be done to take undue Crl.M.C.No.25615 9 advantage in a Criminal Court as if somebody is determined to settle the scores. We have already indicated that there has to be prior applications under S.154(1) and S.154(3) while filing a petition under S.156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that on the application under S.156(3) be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under S.156(3). That apart we have already stated that the veracity of the same can also be verified by the learned Magistrate regard being had to be nature of allegations of the case.” In the present case Annexure A complaint is not supported by any affidavit in compliance with the spirit of Priyanka s case supra. The non compliance with the direction of the Honourable Apex Court having due regard to the facts of this case has vitiated the criminal proceeding in Crime No.380 2015. The learned counsel for the first Crl.M.C.No.25615 10 respondent submitted that the argument based on Priyanka s case supra is only technical so far as the facts of the present case are concerned. I do not agree to this submission especially in the light of Annexures C to E certificates already produced by the petitioner asserting them to be genuine documents capable of proving his qualifications as a Doctor in Philosophy. Though the authenticity or otherwise of these certificates could be contended as a matter requiring scrutiny by means of an investigation as I held earlier it was rather not fair for the learned Magistrate to have entertained the complaint and directed investigation for the evident reason that the complaining party failed to submit a supporting affidavit affirming the allegations raised in Annexure A complaint as being true and correct. In the circumstances Annexure B FIR cannot survive and is liable to be quashed Crl.M.C.No.25615 11 In the result Crl.M.C. is allowed quashing Annexure B FIR as against the petitioner. However this order will not stand in the way of the first respondent setting the criminal law in motion on the basis of a proper complaint supported by an affidavit being submitted in compliance of the directives in Priyanka s case supra. All pending interlocutory applications are Sd T.V.ANILKUMAR JUDGE Crl.M.C.No.25615 12 PETITIONER S EXHIBITS ANNEXURE A A TRUE COPY OF THE PRIVATE COMPLAINT MP 698 2015) FILED BY THE IST A TRUE COPY OF THE FIR IN CRIME 380 2015 OF THRIKKAKKARA POLICE A TRUE COPY OF THE CERTIFICATE ISSUED TO THE PETITIONER FROM PRESCOTT UNIVERSITY LONDON U.K A TRUE COPY OF THE CERTIFICATE DATED 2.9.2003 ISSUED TO THE PETITIONER FROM BHARATHI DASAN UNIVERSITY A TRUE COPY OF THE CERTIFICATE DATED 12.10.2007 ISSUED TO THE PETITIONER FROM BHARATHI DASAN UNIVERSITY A COPY OF THE MEMORANDUM IN OP 45 2015 OF FAMILY COURT PALA THE CONTACT INFORMATION OF PRESCOTT UNIVERSITY PUBLISHED IN THE OFFICIAL WEBSITE OF THE UNIVERSITY A TRUE COPY OF THE CERTIFICATE OF AUTHORISATION GIVEN BY PRESCOTT RELEVANT PAGES OF THE RULES PREPARED BY MINISTRY OF HEALTH AND FAMILY WELFARE GOVERNMENT OF INDIA A COPY OF THE WEBSITE DETAILS OF PRESCOTT UNIVERSITY ALONG WITH STUDENT ALUMNI DIRECTORY Crl.M.C.No.25615 13 RESPONDENTS EXHIBITS COPY OF THE RESUME OF THE ACCUSED COPY OF THE LETTER FROM NIANP DATED COPY OF THE ADVERTISEMENT OF THE COPY OF THE ADVERTISEMENT OF THE COPY OF THE ADVERTISEMENT OF THE COPY OF THE WEB PAGE OF THE PETITIONER IN www.doctorscabin.com COPY OF THE VAKALAT EXECUTED BY THE ACCUSED DATED 7.4.2015 COPY OF THE IDENTITY CARD OF ACCUSED FROM KERALA SHOPS AND COMMERCIAL ESTABLISHMENT WORKERS WELFARE BOARD COPY OF THE HOME PAGE OF THE WEBSITE

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: The High Court of Delhi

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. The above mentioned has been laid down by the apex court in the case of Mahipal v. Rajesh Kumar, (2020) 2 SCC 118  and has given the premise to be followed by the Delhi High Court in the present case of Shakuntala Devi Golyan v. State Nct Of Delhi And Ors. [CRL.M.C. 1209/2021 & CRL.M.A. 6143/2021 (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 petitioner was approached by the respondents herein to purchase an apartment unit in their project namely, ‘Project Sovereign Next’ and lured by the offer, the petitioner undertook to make this purchase. The petitioner was to be given the possession by 30th November 2017. The petitioner paid a total sum of Rs.1,10,09,459/- to the accused, out of the total sale consideration of Rs.2,07,50,500/- , which is more than 50% of the sale consideration. It was stated that since the project was not complete even after three years of the promised date a legal notice was sent by the petitioner herein on 22.04.2017, demanding refund of the total amount paid by the petitioner with interest at the rate of 18% per annum. Thereafter, the petitioner filed a complaint before the National Consumer Disputes Redressal Commission and the Metropolitan Magistrate for the refund of the amount. The learned Metropolitan Magistrate vide the order impugned herein granted bail to the respondent No.2 and 3 herein and also granted exemption to the other accused for not appearing in front of the court. The present petition under Section 482 Cr.P.C is directed against the order whereby the Metropolitan Magistrate, Saket Courts, Delhi, granted bail to the accused Vijender (respondent No.2 herein) and Brij Kishor (respondent No.3 herein) and exempted the other accused namely Anil Bhalla, Gautam and Gaurav from appearance. It is pertinent to mention here that the instant petition is restricted only to the portion granting bail to respondent No.2 and respondent No.3. It was hence submitted by the counsel for petitioner that the respondents have committed a serious offence and there lies no reason for them to be granted bail or to not appear before the Metropolitan Magistrate. After an in depth perusal of the facts and arguments presented, the court vehemently relied upon the fact that Once the Magistrate has exercised his discretion it is not for the High Court to substitute its own discretion to that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. The court took into consideration the judgments in the cases of Nagawwa v. V.S. Konjalgi, (1976) 3 SCC 736) and Mahipal v. Rajesh Kumar, (2020) 2 SCC 118 and was of the opinion that “The learned Metropolitan Magistrate while considering the petition was justified in holding that the question as to whether the accused persons had dishonest intention right at the time of entering into agreement with the complainant/petitioner herein or not is a matter of trial. It is to be noted at this juncture that the counsel for the accused persons had stated that the building is complete and the petitioner herein has not made more than 50% of the payment of the property. No material has been produced before this Court to show that the accused, who had been granted bail by the order impugned herein, have criminal antecedents or that they would flee from justice. It cannot be said that the order impugned herein suffers from non- application of mind. It is trite law that when bail is granted, an appellate Court must be very slow to interfere and when it is found that there is proper application of mind by the Court below in granting bail then the superior Court should not interfere with such orders. In view of the above, no interference is called for.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 14th JUNE 2021 CRL.M.C. 1209 2021 & CRL.M.A. 6143 2021SHAKUNTALA DEVI GOLYAN ..... Petitioners Through Mr. Rakesh Kumar Singh Advocate STATE NCT OF DELHI AND ORS. ..... Respondents Through Ms. Meenakshi Chauhan APP for the HON BLE MR. JUSTICE SUBRAMONIUM PRASAD SUBRAMONIUM PRASAD J. The present petition under Section 482 Cr.P.C is directed against the order dated 18.03.2021 in Case No.5444 2020 whereby the learned Metropolitan Magistrate Saket Courts Delhi granted bail to the accused Vijenderand Brij Kishorand exempted the other accused namely Anil Bhalla Gautam and Gaurav from appearance. It is pertinent to mention here that the instant petition is restricted only to the portion granting bail to Vijender and Brij KishorThe petitioner was approached by the respondents herein to purchase an apartment unit in their project namely Project Sovereign Next Tower A The Sovereign Next Sector 82A Gurgaon 122002. It is stated that lured by the offer the petitioner CRL.M.C. 1209 2021 herein decided to purchase a unit of approximately 3250 sq. ft area in the said project at net basic sale price of Rs.6000 sq ft. It is stated by the petitioner that at the time of purchase she was told that the project would be complete within a period of 4 years and 6 months and the possession would be given to her by 30th November 2017. is stated the petitioner paid a total sum of Rs.1 10 09 459 to the accused out of the total sale consideration of Rs.2 07 50 500 which is more than 50% of the sale consideration. It is stated that since the project was not complete even after three years of the promised date a legal notice was sent by the petitioner herein on 22.04.2017 demanding refund of the total amount paid by the petitioner with interest at the rate of 18% per annum. It is stated that the petitioner issued several notices thereafter but it did not elicit any response. It is stated that the petitioner has filed a complaint being CC No.868 2018 before the National Consumer Disputes Redressal Commission on 13.01.2021 for refund of Rs.1 10 09 974 . It is stated that the petitioner herein also filed an application under Section 156(3) Cr.P.C before the learned Metropolitan Magistrate South East District Saket Courts but the same was not pressed instead a complaint under Section 200 Cr.P.C was filed. It is stated that the learned Metropolitan Magistrate considering facts and circumstances of the case took cognizance of offence under Sections 403 405 409 420 IPC. It is stated that the learned Metropolitan CRL.M.C. 1209 2021 Magistrate issued notice against the accused vide order dated 23.02.2021 for appearance on 11.02.2021. It is stated that despite service of summons the accused preferred not to appear before the Court on 11.02.2021 and accordingly bailable warrants in the sum of Rs.20 000 were issued against the accused for securing their presence on 18.03.2021. It is stated that on 18.03.2021 out of five accused only two accused i.e. the respondent No.2 and 3 herein appeared but the main accused preferred not to appear and filed an application seeking exemption from personal appearance. The learned Metropolitan Magistrate vide the order impugned herein granted bail to the respondent No.2 and 3 herein and also granted exemption to the other accused for not appearing. It is this order which is under challenge in the instant petition. Heard Mr. Rakesh Kumar Singh learned counsel for the petitioner Ms. Meenakshi Chauhan learned APP for the State and perused the material on record. 4. Mr. Rakesh Kumar Singh learned counsel for the petitioner argues very vehemently that after cognizance has been taken there was no reason for the accused not to appear before the learned Metropolitan Magistrate. It is submitted by the learned counsel for the petitioner that there are serious allegations against the respondent No.2 and 3 and other accused persons. He submits that the offences are very serious in nature and the Court cannot grant bail to the accused for their asking. A perusal of the facts shows that this is primarily a builder buyer dispute. The petitioner has already filed a complaint against the accused with the NCDRC for refund of the amount. The learned Metropolitan CRL.M.C. 1209 2021 Magistrate while passing the impugned order has observed that no custodial interrogation of the accused is required. In matters of grant of bail under Section 437 Cr.P.C the Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the Magistrate has exercised his discretion it is not for the High Court to substitute its own discretion to that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint if proved would ultimately end in conviction of the accused refer Nagawwa v. V.S. Konjalgi 3 SCC 736). In Mahipal v. Rajesh Kumar 2 SCC 118 the Supreme Court observed as under: 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 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.” CRL.M.C. 1209 2021 The learned Metropolitan Magistrate while considering the petition was justified in holding that the question as to whether the accused persons had dishonest intention right at the time of entering into agreement with the complainant petitioner herein or not is a matter of trial. It is to be noted at this juncture that the counsel for the accused persons had stated that the building is complete and the petitioner herein has not made more than 50% of the payment of the property. No material has been produced before this Court to show that the accused who had been granted bail by the order impugned herein have criminal antecedents or that they would flee from justice. It cannot be said that the order impugned herein suffers from non application of mind. It is trite law that when bail is granted an appellate Court must be very slow to interfere and when it is found that there is proper application of mind by the Court below in granting bail then the superior Court should not interfere with such orders. In view of the above no Accordingly the petition is dismissed along with the pending interference is called for. application. SUBRAMONIUM PRASAD J JUNE 14 2021 CRL.M.C. 1209 2021

No title can be conferred upon the Appellant, based on unregistered documents: Delhi High Court

“No trial would be required as even if these documents are taken on file as evidence, by virtue of them being unregistered documents, they would not be valid and would confer no title.”, this remarkable stand was forwarded by Delhi High Court single judge bench chaired by Hon’ble Justice Mr. Prathiba M. Singh in the criminal appeal case of Vateena Begum V. Shamim Zafar & Anr., [CM APPLs. 21460-63/2020]. The present appeal challenges the impugned order dated 13th August, 2020, by which the Executing Court has rejected the objections filed by the Appellant under Order XXI Rule 97 and 101 CPC. The admitted facts in this case are:- The original owner, in respect of the agreements of both the parties before this court, is Mr. Dilawar Hussain Malik. The Appellant has allegedly entered into certain documents in respect of the property with the original owner. None of the Appellant’s documents are registered. The sale consideration fixed is Rs. 9,00,000/-. The entire amount is purportedly received only in cash. On the other hand, the Respondents/ Decree Holders filed a suit for specific performance on the strength of an Advance Receipt-cum Agreement to Sell and Purchase, dated 21st July, 2012, with the same original owner. The consideration recorded in this agreement is Rs.6,00,000/-. Advance payment of Rs.1,00,000/- is stated to have been made out of which Rs.45,000/- is a cheque payment. There is also a receipt executed by one Mr. Mohd. Javed, who is stated to have received Rs. 2,00,000/- i.e. a part of the remaining sale consideration. The suit for specific performance and permanent injunction was filed by the Respondents/ Decree Holders in September, 2012. A perusal of the trial court record reveals that in the suit, repeated summons were issued to the Defendant/ Original Owner of the property. Thereafter, the decree of specific performance, which was passed by the trial court, was sought to be executed by the Respondents/ Decree Holders After examining all the submissions, arguments and evidences forwarded by the councils, the Hon’ble HC observed that, “The execution of a decree for specific performance does not merely relate to a title of a property, but as in the present case, also involves dispossessing a person who is already in physical possession of the property. At the time when the decree was passed it is not even clear as to who was in possession of the property. Hence, in such a situation, objections would have to be considered in detail by the Executing Court and may require leading of evidence to ascertain factual aspects, with respect to the suit property and the Original Owner.” In lieu of the above made considerations and observations, the bench in this present case rejected the present application stating that, “Accordingly, the impugned order is set aside. The Executing Court would frame issues and adjudicate the objections after receiving evidence. Needless to add this Court has not examined the legality or the validity of the documents relied upon by the Appellant and the Respondents, or any other averments on merits”.

Signature Not Verified Digitally Signed By:DINESH IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 19th November 2020 Date of decision: 17th December 2020 EX.F.A. 9 2020 & CM APPLs. 21460 63 2020 VATEENA BEGUM Through: Md. Azam Ansari Advocate along Appellant in person with Appellant SHAMIM ZAFAR & ANR. Through: Mr. S.P. Jha Advocate for R 1 on 21st June 2012 by way of General Power of Attorney Agreement to Sell and Purchase Affidavit Will Possession letter and Receipt of Money for a consideration of Rs. 9 00 000 . The said documents were executed by Mr. Dilawar Hussain Malik on 2nd Signature Not Verified By:PRATHIBA M SINGH Signing Date:17.12.2020 13:57 EX.F.A. 9 2020 July 2012. Signature Not Verified Digitally Signed By:DINESH On the other hand the case of the Respondents Decree holders is that they had purchased the property from Mr. Dilawar Hussain Malik and his wife Ms. Nazma Malik vide documents dated 2nd July 2012. They had executed an Agreement to Sell and Receipt. The agreed consideration was Rs. 6 00 000 for the said property out of which Rs. 3 00 000 was paid to the seller. The Respondents filed a suit for specific performance and the Defendants i.e. Mrs. and Mr. Malik remained ex parte. They did not file any pleadings and an ex parte decree for specific performance was passed on 11th November 2013 by the Trial Court in favour of the Respondents. The remaining amount of consideration of Rs. 3 00 000 was deposited with the trial court at the time of drawing up of the decree. 4. When the decree holders sought execution of the decree the Appellant filed objections which were rejected. The reasoning of the Executing Court for rejecting these objections was that all the documents relied upon by the Appellant are unregistered and owing to the judgment of the Supreme Court in Suraj Lamps and Industries v. State of HaryanaDLT 1no title can be conferred upon the Appellant based on unregistered documents. Further the Court held that no trial would be required as even if these documents are taken on file as evidence by virtue of them being unregistered documents they would not be valid and would confer no title. Accordingly the court held that no trial would be required and the objections were dismissed. 5. When the matter was heard at the preliminary stage an apprehension had been expressed by the ld. counsel for the Respondents Decree holders Signature Not Verified By:PRATHIBA M SINGH Signing Date:17.12.2020 13:57 EX.F.A. 9 2020 Signature Not Verified Digitally Signed By:DINESH that the documents of the Appellant are forged. As per the RTI records the stamp paper on the basis of which the Appellant claimed to have purchased were sold only on 10th July 2012 and 27th August 2012. Thus the counsel for the Respondents submitted that the date of the documents being 21st June 2012 in fact shows that the documents relied upon are forged and completely illegal. In view thereof the matter was taken up in physical Court and the original documents were summoned. Both the parties have filed their original documents on record and both are retained with the court in a sealed cover. Appellant’s Submissions: 6. Mr. Ansari ld. counsel for the Appellant submits that as per Order XXI Rule 97 read with Rule 101 and 103 of the CPC objections have to be tried like a suit and hence a trial is essentially required. He submits that the prayers of the Appellant in their objections to the execution are in the nature of declaration of right and title in the suit property and the same requires to be adjudicated upon after proper cross examination. He further submits that the Court has to determine as to who holds the better title between the Appellant and the Respondents. Reliance is placed by ld. counsel for the Appellant on Vikas Wadhwa v. Pradeep Kumar & Ors. DLT 787] upheld by the Hon’ble Supreme Court Diary No. 19663 2019] Rajeev Dutta and ors. v. Punjab Waqf BoardAIHC 3144] Noorduddin v. Dr. K.L. Anand 1 SCC 242] Shreenath & Anr. v. Rajesh & Ors. Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal & Anr. 3 SCC 694] Har Vilas v. Mahendra Nath & Ors. 15 SCC 377] and Maya Devi v. Lalta Signature Not Verified By:PRATHIBA M SINGH Signing Date:17.12.2020 13:57 EX.F.A. 9 2020 Signature Not Verified Digitally Signed By:DINESH prasadjudgment has been considered by the Trial Court as defeating the Appellant’s rights the same judgment would then be applicable in the case of the Respondents as well. He relies upon two judgments namely Vikas Signature Not Verified By:PRATHIBA M SINGH Signing Date:17.12.2020 13:57 EX.F.A. 9 2020 Signature Not Verified Digitally Signed By:DINESH Wadhwaand Maya Deviin support of his case. 12. He further submits that as soon as the Appellant came to know that warrants of possession were issued they entered appearance on 29th May 2018 and informed the Court that they are in possession of the property and have documents in their favour as recorded in the order dated 29th May 2018. He thus submits that the objections of the Appellant could not have been dismissed in a summary manner by the Executing Court. 13. Mr. Ansari ld. counsel for the Appellant finally submits that the sale consideration which was paid by the Appellant in June 2012 is Rs.9 lakhs and two of the witnesses namely Mohd. Aslam and Mr. Irfan Khan are still alive and that he would be able to establish the said payment if given an opportunity before the Executing Court. Respondents’ Submissions 14. Mr. Jha ld. counsel for the Respondents on the other hand submits that the Appellant is not entitled to the benefit of Section 53A of Transfer of Property Act as under Section 17 of the Registration Act unless the agreement to sell or power of attorney is registered the benefit under section 53A of part performance cannot be given. 15. He submits that the judgment in Vikas Wadhwa relates to documents which were executed in 2001 and not post the judgment in Suraj Lamps and thus the same would not benefit the Appellant in any manner. He further submits that since the Appellant has also purchased the property from the same original owner the provisions of Order XXI Rule 97 would not apply. 16. Ld. Counsel further submits that in both the judgments relied by the Signature Not Verified By:PRATHIBA M SINGH Signing Date:17.12.2020 13:57 EX.F.A. 9 2020 Signature Not Verified Digitally Signed By:DINESH Appellant i.e. Vikas Wadhwa as well as Maya Devi the documents were executed prior to the rendering of the Suraj Lampsdecision. Suraj Lampsis not to be held applicable in a retrospective manner however in the present case the Appellant’s documents are of 2012 subsequent to the decision in Suraj LampsThe original owner in respect of the agreements of both the parties before this court is Mr. Dilawar Hussain Malik. The Appellant has allegedly entered into the following documents in respect of the property with the original owner: a) a General Power of Attorney by the owner in favour of the Appellant dated 21st June 2012. b) an Agreement to sell and purchase dated 21st June 2012. c) an Affidavit of the owner dated 21st June 2012. d) a Will dated 21st June 2012 purportedly executed by the e) an unsigned Possession Letter which is witnessed by two witnesses and the Petitioner. However there is no signature of the owner in this document f) a Receipt for a sum of Rs.9 00 000 executed by the owner. ii) None of the Appellant’s documents are registered. iii) The sale consideration fixed is Rs. 9 00 000 . iv) The entire amount is purportedly received only in cash. v) On the other hand the Respondents Decree Holders filed a suit for specific performance on the strength of an Advance Receipt cum Agreement to Sell and Purchase dated 21st July 2012 with the same original owner. vi) The consideration recorded in this agreement is Rs.6 00 000 . Signature Not Verified By:PRATHIBA M SINGH Signing Date:17.12.2020 13:57 EX.F.A. 9 2020 Signature Not Verified Digitally Signed By:DINESH Advance payment of Rs.1 00 000 is stated to have been made out of which Rs.45 000 is a cheque payment. vii) There is also a receipt executed by one Mr. Mohd. Javed who is stated to have received Rs. 2 00 000 i.e. a part of the remaining sale 21. The suit for specific performance and permanent injunction was filed by the Respondents Decree Holders in September 2012. A perusal of the trial court record reveals that in the suit repeated summons were issued to the Defendant Original Owner of the propertyWhether it was compulsory for the Executing Court to frame issues and adjudicate the objections after trial b) Whether there exists any validity or sanctity in law to the documents which have been put forward by the Appellant and if so to what effect Insofar as the first question is concerned the Executing Court while adjudicating objections filed under Order XXI Rule 97 to 106 of the CPC has the discretion to frame issues and to conduct a trial in the matter. However it is not in every case that the objections would have to be adjudicated after a trial. The discretion given to the executing court is very wide. The Executing Court may decide against holding a trial if according to the court the facts do not require the same. Every question raised by the Objector need not be decided by the Executing Court after trial. It would have to consider as to whether the issues raised even arise in the matter. It is Signature Not Verified By:PRATHIBA M SINGH Signing Date:17.12.2020 13:57 EX.F.A. 9 2020 Signature Not Verified Digitally Signed By:DINESH not necessary to call for evidence in every case wherein objections have been raised in an execution proceeding. The discretion purely vests with the Executing Court. The Executing Court has the option to either frame issues while deciding record evidence while adjudicating upon the objections or to merely consider whether such a course of action is even required or not. In Silverline Forum Pvt. Ltd. v. Rajiv Trust and Ors.3 SCC 723 the Hon’ble Supreme Court has held: 10. It is true that Rule 99 of Order 21 is not available to any person until he is dispossessed of immovable property by the decree holder. Rule 101 stipulates that all questions "arising between the parties to a proceeding on an application under rule 97 or rule 99" shall be determined by the executing court if such questions are "relevant to the adjudication of the 11. When a decree holder complains of resistance to the execution of a decree it is incumbent on the execution court to adjudicate upon it. But while making adjudication the court is obliged to determine only such question as may be arising between the parties to a proceeding on such complaint and that such questions must be relevant to the adjudication of the complaint. 12 . The words "all questions arising between the parties to a proceeding on an application under Rule 97" would envelop only such questions as would legally arise for determination between those parties. In other words the court is not obliged to determine a question merely because the resistor raised it. The questions which executing court determine under rule 101 must possess two adjuncts. First is that such questions should have legally arisen is obliged Signature Not Verified By:PRATHIBA M SINGH Signing Date:17.12.2020 13:57 EX.F.A. 9 2020 Signature Not Verified Digitally Signed By:DINESH between the parties and the second is such questions must be relevant for consideration and determination between the parties e.g. if the obstructer admits that he is a transferee pendente lite it is not necessary to determine a question raised by him that he was unaware of the litigation when he purchased the property. Similarly a third party who questions the validity of a transfer made by a decree holder to an assignee cannot claim that the question regarding its should be decided during proceedings. Hence it is necessary that the questions raised by the resistor or the obstructer must legally arise between him and the decree holder. In the adjudication process envisaged in order 21 Rule 97(2) of the Code execution court can decide whether the question raised by a resistor or obstructer legally arises between the parties. An answer to the said question also would be the result of the adjudication contemplated in the sub section. 14. … The adjudication mentioned therein need not necessarily involve a detailed enquiry or collection of evidence. Court can make the adjudication on admitted facts or even on the averments made by the resistor. Of course the Court can direct the parties to adduce evidence for such determination if the Court deems it necessary. xxx" It is the settled legal position as held by various High Courts and the Supreme Court that the Executing Court merely needs to appreciate the documents filed on the record apply its mind to the same and decide the objections. It is only if complex facts are put up or on a perusal of the documents relied upon evidence is required that issues need to be framed and evidence may be called for. 30. The short case of the Appellant is that she has various documents in Signature Not Verified By:PRATHIBA M SINGH Signing Date:17.12.2020 13:57 EX.F.A. 9 2020 Signature Not Verified Digitally Signed By:DINESH her favour. The Court has seen the original documents. None of the documents are registered. It is however agreed by both counsels for the parties that Mr. Dilawar Hussain Malik and his wife are no longer alive but the date of their death has not been ascertained or produced before the court. The Appellant has a “Will” executed in her favour dated 21st June 2012 along with the other documents. The same is purportedly signed by the owner Dilawar Hussain Malik and is witnessed by two witnesses. Though the remaining unregistered documents namely the GPA Agreement to Sell Affidavit etc. would not confer any rights the Will stands on a completely different footing. Unless and until the Will is argued to be forged or fabricated the Petitioner ought to be given a chance to prove the Will as both the owner Dilawar Hussain Malik and his wife Najma Malik are no longer alive. The Executing Court is right to the extent that since the Appellant’s documents are unregistered and they are purportedly executed post the judgment in Suraj Lampsthey may not have any sanctity in law. However the position in respect of the Will would be completely different as it would raise several complexities with respect to the transfer and registration in favour of the Respondents Decree Holders given that the date of death of the Defendant has not been established before this court. The Appellant has filed affidavits of two persons namely Mr. Irfan Khan and Mohd. Islam who are stated to be the witnesses in the Will. 31. The Respondents Decree Holders do have a decree for specific performance in their favour. The objections by the Appellant however do raise an issue as to the right title and interest of the two parties with respect to the suit property. The Appellant is in physical possession of the property. It is Signature Not Verified By:PRATHIBA M SINGH Signing Date:17.12.2020 13:57 EX.F.A. 9 2020 Signature Not Verified Digitally Signed By:DINESH extremely surprising that neither at the time of entering into a transaction with the original owners nor during the pendency of the suit did the Respondents ascertain as to who was in possession of the property. In both the Agreements to Sell possession of the property is not handed over. The clauses in the Agreements to Sell qua possession read as under: Agreement dated 21st June 2012 in favour of the Appellant: the FIRST PARTY undertake handover the vacant physical possession of the said Property unto the SECOND PARTY at the spot along with all documents related thereto after receiving full and final sale consideration and registration of GPA Will and all other relevant documents in the office of the Sub Registrar New Delhi. xxx” Agreement dated 2nd July 2012 in favour of the Respondent: That FIRST PARTY shall handover “ 4. peaceful vacant possession of the said property to the SECOND PARTY or his her their nominee(s) along with the photocopy original documents and papers in respect of the said property at the spot. xxx” From the above clauses it is clear that both parties allegedly parted with consideration without insisting on physical possession. The possession letter in favour of the Appellant does not bear the signature of the seller. Neither party got the documents of sale registered. How and when the Appellant came into possession is not clear at this point. 32. As per Order XXI Rule 101 of the CPC any dispute which arises in respect of the right title or interest in a property between the parties in proceedings before the Executing Court i.e. the Decree Holder and the Signature Not Verified By:PRATHIBA M SINGH Signing Date:17.12.2020 13:57 EX.F.A. 9 2020 rulings. Signature Not Verified Digitally Signed By:DINESH Objector the same need not be decided by a separate suit. The legislative mandate is that the objections ought to be adjudicated in the execution petition itself in order to avoid multiplicity of proceedings and conflicting 33. It is the settled legal position that the Executing Court cannot go beyond the decree. However the question is whether the Appellant has any right title or interest in the property in view of the documents and the Will dated 21st June 2012. Whether the registered sale deed executed by a Court Commissioner in favour of the Respondent is valid or not would also have to be considered depending upon the date of death of Mr. Malik and his wife i.e. the original owners. It is also the settled legal position that a Will need not be registered in Delhi for being enforced and needs to be only proved in terms of Section 68 of the Indian Evidence Act 1872. 34. The Appellant’s case is also not beyond suspicion in as much as the entire sale consideration of Rs.9 lakhs is purportedly paid in cash and none of the documents are registered. The RTI documents relied upon by the Respondent cannot be straightaway taken as proved. Some evidence will be required on this aspect as well. 35. Thus a perusal of the original documents placed on record by both sides shows that there are several unanswered questions: 1. When did the demise of Mr. Dilawar Hussain Malik take place 2. When did the demise of his wife Ms. Nazma Malik take place 3. Did they have any knowledge of the decree and the sale deed before their demise given the decree was passed ex parte 4. If Mr. Dilawar Malik and Ms. Nazma had passed away prior to the Decree would that vest the rights in the property in favour of the Signature Not Verified By:PRATHIBA M SINGH Signing Date:17.12.2020 13:57 EX.F.A. 9 2020 Signature Not Verified Digitally Signed By:DINESH Appellant given the Will in her favour 5. What is the role of Mr. Mohammad Javed who received payments from the Decree Holder Was he duly authorized to receive the said payments and if so for whose benefit 6. At the time when the Sale Deed was executed by the Court Commissioner in favour of the Respondent Decree Holders were either Mr. Malik or Ms. Malik alive and to what effect 7. Who would be entitled to Rs.3 00 000 which stands deposited by the Respondents in court 8. Are the GPA Agreement to Sell Affidavit Receipt and the Will relied upon by the Appellant genuine or are they forged and fabricated 9. What is the role of the two witnesses who have signed the said documents put forth by the Appellant as witnesses 10. Why is the possession letter in favour of the Appellant not signed by either Mr. Dilawar Hussain Malik or his Wife 11. Can the Appellant rely on these documents to protect her possession if the same are found to be valid 36. Order XXI Rule 101 CPC has been included in the Code to resolve such issues which come up while adjudicating upon objections raised during execution proceedings. The Executing Court ought to consider these issues before dispossessing the Appellant from the suit premises. Merely on the ground that the documents in favour of the Appellant are unregistered applying Suraj Lampsthe Appellant cannot be non suited without a trial especially when the decree for specific performance was an ex parte decree. Signature Not Verified By:PRATHIBA M SINGH Signing Date:17.12.2020 13:57 EX.F.A. 9 2020 Signature Not Verified Digitally Signed By:DINESH 37. Moreover it is noticed that in suits seeking specific performance if the actual status of the de facto possession of the property is ascertained prior to passing of a decree such complexities would not arise. The Defendant in the suit for specific performance i.e. the Original Owner was ex parte all along in the suit proceedings. He was only served by means of publication in The Stateman and has never come forth either in the suit or in the execution proceedings. It is not even clear as to why the money with respect to the property was paid to a third party i.e. Mohammed Javed. All these questions could not have simply been brushed aside by holding that the Appellant’s documents are not registered in terms of the decision in Suraj Lampsand hence even if the same are considered genuine no title would be vested in favour of the Appellant. It needs to be noted is that the Petitioner’s documents are stated to have been executed just a few months after the rendering of the Suraj Lampsjudgment. 38. The execution of a decree for specific performance does not merely relate to a title of a property but as in the present case also involves dispossessing a person who is already in physical possession of the property. At the time when the decree was passed it is not even clear as to who was in possession of the property. Hence in such a situation objections would have to be considered in detail by the Executing Court and may require leading of evidence to ascertain factual aspects with respect to the suit property and the Original Owner. 39. While entertaining suits for specific performance and granting interim relief and specifically while passing ex parte decrees for specific performance courts ought to make sure that the property is secured during the pendency of the suit and that the decree which is passed is not merely a Signature Not Verified By:PRATHIBA M SINGH Signing Date:17.12.2020 13:57 EX.F.A. 9 2020 Signature Not Verified Digitally Signed By:DINESH paper decree. It would be advisable to ascertain as to who is in physical possession of the property during the proceedings of a specific performance suit in order to ensure that the complexities of the kind that have arisen in the present case do not arise in future. 40. Accordingly the impugned order is set aside. The Executing Court would frame issues and adjudicate the objections after receiving evidence. Needless to add this Court has not examined the legality or the validity of the documents relied upon by the Appellant and the Respondents or any other averments on merits. 41. Considering that the decree in the present case was passed way back in 2002 the Executing Court shall decide the objections within a period of six months. The original documents which were handed over during the court hearing be returned the respective counsel upon proper acknowledgment. The same be produced before the executing court. The Registry of this Court to scan the documents before the same are returned to the Ld. Counsels for the parties. 42. List before the Executing Court on 5th January 2020 for framing of issues and for fixing the schedule for trial. 43. Copy of this judgment to be communicated to the Executing Court in Ex. No. 9939 2016 titled Shamim Zafar and Anr. v. Dilawar Hussain Malik and Anr. i.e. ADJ 05 South East District Saket Courts New Delhi. Copy of this judgement be also sent to the District & Session Judges for circulation amongst the judicial officers. PRATHIBA M. SINGH JUDGE DECEMBER 17 2020 Signature Not Verified By:PRATHIBA M SINGH Signing Date:17.12.2020 13:57 EX.F.A. 9 2020

The fundamental Postulate of the Criminal Jurisprudence is the Presumption of Innocence until Innocent is found Guilty: High Court of Shimla

In criminal jurisprudence, the person is presumed to be innocent, unless and until he is found guilty. This auspicious judgement was passed by the High Court of Shimla in the case of Anita Kumari Versus State of Himachal Pradesh [Cr.MP(M) No. 563 of 2021] by The Hon’ble Mr. Justice Sandeep Sharma, judge. The bail application was filed by petitioner whereby the petitioner was ordered to be enlarged on interim bail in connection with FIR No. 57/2021 dated 21.3.2021 under Sections 376, 420, 506 and 120-B of IPC, registered with Police Station Palampur, HP, respondent-State has placed on record status report prepared on the basis of investigation carried out by the Investigating Agency. The present bail petitioner had joined the investigation and as such, her custodial interrogation is not required at this stage. It was stated that State has no objection, in case the petitioner had ordered to be enlarged on bail subject to condition that she shall always make herself available as and when required by the Investigating Agency. The object of the bail was to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise, bail is not to be withheld as a punishment. The learned council referred the case of Sanjay Chandra versus Central Bureau of Investigation (2012), Prasanta Kumar Sarkar v. Ashis Chatterjee and Another (2010) 14 SCC 496 and Dataram Singh vs. State of Uttar Pradesh & Anr in which it was held that, “a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty.”

Hig h C o urt of H.P on 07 04 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr.MP(M) No. 5621 Decided on: 07.4.2021 __________________________________________________________________ Anita Kumari Petitioner Versus State of Himachal Pradesh ….Respondent __________________________________________________________________ Coram: Hon’ble Mr. Justice Sandeep Sharma Judge. Whether approved for reporting 1 For the Petitioner : Mr. P.P. Chauhan Advocate.. For the Respondent : Mr. Sudhir Bhatnagar and Mr. Arvind Sharma Additional Advocates General. __________________________________________________________________ Sandeep Sharma Judge14 SCC 496 has laid down the following principles to be kept in mind while deciding petition for bail:whether there is any prima facie or reasonable ground to believe that the accused had committed the offence nature and gravity of the accusation severity of the punishment in the event of conviction danger of the accused absconding or fleeing if released on bail character behaviour means position and standing of the accused likelihood of the offence being repeated reasonable apprehension of the witnesses being influenced and danger of course of justice being thwarted by grant of bail. 6. Recently the Hon’ble Apex Court in Criminal Appeal No. 227 2018 Dataram Singh vs. State of Uttar Pradesh & Anr. decided on 6.2.2018 has categorically held that a fundamental postulate of criminal jurisprudence is the presumption of innocence meaning thereby that a person is believed to be innocent until found guilty. Hon’ble Apex Court further held that while considering prayer for grant of bail it is important to Hig h C o urt of H.P on 07 04 HCHP 4ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Hon’ble Apex Court further held that if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimized it would be a factor that a judge would need to consider in an appropriate case. 7. Consequently in view of the above order dated 23.3.2021 passed by this Court is made absolute subject to the following conditions: a. She shall make herself available for the purpose of interrogation if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so seek exemption from appearance by filing appropriate application b. She shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever c. She shall not make any inducement threat or promises to any person acquainted with the facts of the case so as to dissuade her from disclosing such facts to the Court or the Police Officer and d. She shall not leave the territory of India without the prior permission of the Court. 8. It is clarified that if the petitioner misuses her liberty or violates any of the conditions imposed upon her the investigating agency shall be free to move this Court for cancellation of the bail. Hig h C o urt of H.P on 07 04 HCHP 59. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this application alone. The bail petition stands accordingly disposed of. Copy dasti. 7th April 2021 manjit Judge

Banks cannot wash off their hands and claim that they bear no liability towards their customers for operation of locker: Supreme Court of India

Locker Hiring Facility will now be governed by principles laid down by SC that shall remain binding upon the banks which are providing locker or safe deposit facilities while directing RBI to lay down comprehensive guidelines for locker facility/safe deposit facility management. This auspicious judgment was passed by the Supreme Court of India in the matter of AMITABHA DASGUPTA V. UNITED BANK OF INDIA & ORS. [CIVIL APPEAL 3966 of 2010] by Honourable Justice Mohan M. Shantanagoudar. This petition is filed against the judgment of the National Consumer Disputes Redressal Commission wherein the commission dismissed a revision petition filed against the judgment of the State Consumer Disputes Redressal Commission. The facts of the case are, Appellant’s mother (deceased) rented a locker and the appellant was added as a joint holder. Later, the Appellant tried to operate the locker and deposit the locker rent the Bank informed that they have broken it open due to non -payment and have also re-allotted it. Appellant argued it was illegal and admitted to having inadvertently broken open the locker. Additionally, the appellant found some things missing, however, bank contended that these were the only things in records. Consequently, the appellant approached District Consumer Forum for returning seven ornaments or compensation for damage of Rs. 3,00,000/­. The respondent was directed to return the entire contents of the locker, or alternatively pay Rs. 3,00,000 and 50000 for compensation. However, the State Commission held that a Consumer Forum has a limited jurisdiction to adjudicate on the recovery of the contents of the locker and the National Consumer Forum also held this impugned judgment. Thus, the Court answered the issues of whether the bank has a duty under bailment laws and whether it could be adjudicated in a consumer forum. Additionally, the court also deliberated upon whether the bank owes an independent duty of care to its customers with respect to diligent management and the issue of compensation in such cases. The Court stated, “Even in the relevant foreign precedents which we have noted, the application of the principles of bailment was contingent on determining whether possession was transferred in the facts of the case. This in turn requires factual findings on whether the bank had knowledge of the contents of the locker, or whether the locker holder had prepared any receipt or inventory of the articles placed inside the locker or was otherwise able to prove the particulars of the items deposited in the locker. We are of the considered opinion that these questions cannot be adjudicated upon in the course of proceedings before Consumer Courts and have to be evaluated by Civil Courts.“ Thus, the SC held the National Commissions’ judgment of leaving the question of law and fact upon civil courts as correct.  The Court acknowledged that “Banks as service providers under the earlier Consumer Protection Act, 1986, as well as the newly enacted Consumer Protection Act, 2019, owe a separate duty of care to exercise due diligence in maintaining and operating their locker or safety deposit systems. This includes ensuring the proper functioning of the locker system, guarding against unauthorized access to the lockers, and providing appropriate safeguards against theft and robbery. This duty of care is to be exercised irrespective of the application of the laws of bailment or any other legal liability regime to the contents of the locker. The banks as custodians of public property cannot leave the customers in the lurch merely by claiming ignorance of the contents of the lockers.“ The Apex Court relied on previous judgment and also RBI Guidelines which cast duties on banks for maintenance of locker which grants permission to each bank to formulate their own regulations. In regard to this, SC stated that ” Present state of regulations on the subject of locker management is inadequate and muddled. Each bank is following its own set of procedures and there is no uniformity in the rules. Further, going by their stand before the consumer forum, it seems that the banks are under the mistaken impression that not having knowledge of the contents of the locker exempts them from liability for failing to secure the lockers in themselves as well. In as much as we are the highest Court of the country, we cannot allow the litigation between the bank and locker holders to continue in this vein. Hence, we find it imperative that this Court lays down certain principles which will ensure that the banks follow due diligence in operating their locker facilities, until the issuance of comprehensive guidelines in this regard.” Thus, the court laid down guidelines and stated that “Banks cannot wash off their hands and claim that they bear no liability towards their customers for the operation of the locker. The very purpose for which the customer avails of the locker hiring facility is so that they may rest assured that their assets are being properly taken care of. Such actions of the banks would not only violate the relevant provisions of the Consumer Protection Act but also damage investor confidence and harm our reputation as an emerging economy.“

This appeal by special leave arises out of the judgment of the National Consumer Disputes Redressal Commission Revision Petition filed against the judgment of the State Kolkata Branch of the Respondent No. 1 Bank. In 1970 the Appellant Complainant was included as a joint holder of the of 1993­1994. Further that the locker had subsequently been 2.2 On 29.05.1995 and 2.06.1995 the Appellant sent communications to Respondent No. 1 claiming that such breaking of his locker by the Bank was illegal since he had cleared dues for 1994­1995 on 30.07.1994 i.e. prior to the is Respondent No. 3 in the present appeal responded to the communication and admitted to having inadvertently broken open the locker though there were no outstanding dues to be that reminders for the payment of dues had been sent on 2.3 On 17.06.1995 when the Appellant went to collect the However Respondent No.1 Bank contends that only those two ornaments were found in the Appellant’s locker when it was broken open. That the same is evident from the inventory 2.4 Subsequently the Appellant filed a consumer complaint before the District Consumer Forum calling in the locker or alternatively pay Rs. 3 00 000 ­ towards the cost of jewelry and compensation for damages suffered by the 2.5 The District Forum allowed the complaint and held Respondent No. 1 liable for deficiency of service relying upon rent dues. Further on the claim for the cost of seven ornaments been only two ornaments in the locker since there were no opened. Hence Respondent No. 1 was directed to return the Rs. 3 00 000 ­ towards cost of the jewelry and Rs. 50 000 ­ as compensation for mental agony harassment and cost of 2.6 On appeal the State Commission vide order dated 12.10.2004 accepted the District Commission’s findings on the question of deficiency of service though it reduced the compensation from Rs. 50 000 ­ to Rs. 30 000 ­. However with respect to recovery of the cost of the ornaments the State Commission relying upon the judgment of the National not equipped to undertake this evaluation since it only has 2.7 The Revision Petition against the order of the State Commission was dismissed vide the impugned order. The National Commission by the impugned judgment accepted the State Commission’s holding on the limited jurisdiction of the the contents of the locker it would be highly improbable to 3.1 Per contra learned counsel for the Respondents submitted that the National Commission’s holding does not warrant interference. He submitted that compensation for the loss of the record the following issues arise for consideration in the other law with respect to the contents of the locker Whether the same can be effectively adjudicated in the course of consumer dispute 4.2 Second irrespective of the answer to the previous issue whether the Bank owes an independent duty of care to its customers with respect to diligent management and operation of the locker separate from its contents Whether 5. Disputes between banks and locker holders pertaining to loss of articles placed inside the locker have been subject to judicial consideration in various jurisdictions for nearly a century. For a broader understanding of the subject we find it necessary to briefly refer to certain judgments of foreign placed inside the locker by the locker holder. In Roberts v Stuyvesant Safe Deposit Co. 3 the defendant company permitted the police under a search warrant to confiscate the articles that were inside the plaintiff’s locker. However the to comply with the duty of care required under the law by permitting the police to take away articles that were not mentioned in the search warrant. Affirming the plaintiff’s observations about the relationship of bailment between the “The legal relationship which the defendant held to the plaintiff and out of which this controversy has fundamental question in the case is whether the defendant upon the undisputed evidence in the The Manhattan Storage & Warehouse Company 4 Mayer v Brensigner 5 National Safe Deposit Co. v. Stead.6 In Cussen the bank’s safe deposit vault was lost. The Supreme Court of California held that the bank was liable under the laws of bailment the court must first find on the facts of the case the outset to refer to the relevant provisions under the Indian “148. ‘Bailment’ ‘bailor’ and ‘bailee’ defined.—A ‘bailment’ is the delivery of goods by one person to shall when the purpose is accomplished be returned intended bailee or of any person authorised to hold Thus from the aforementioned provisions it can be inferred that three components need to be fulfilled for the existence of bailment. These are: delivery of goods from one person to another by transfer of possession actual or constructive an express or implied contract for delivery delivery should be for or sector­specific regulations which may throw light upon the issue of whether banks are responsible under the laws of bailment for the loss of articles placed inside the locker. On does not have any binding value. However it is useful in 2.1 It is clarified that the relationship between the and bailee and not landlord and tenant though the and the bank is required to exercise due care and On perusal of the 2006 Circular it is evident that at that holder even if the bank has no knowledge of the contents of the 7.1 The RBI had also issued guidelines covering inter alia the subject of safe custody of articles placed inside the lockers Circular No RBI 2006­2007 325) on 17.04.2007 as being in the nature of an anti­competitive practice. The CCI dismissed the suggest any understanding consensus arrangement the aforesaid prohibited activities. Suspicion of a Opposite Parties allegedly do not take responsibility RTI replies of some of the Opposite Parties suggest that they are not completely absolved for loss of to theft or burglary etc. of safe custody locker the by the terms and conditions laid down in the memorandum of hiring of locker and the guidelines issued by RBI from time to time. Reply dated 19th October 2015 of Andhra Bank states that the relationship between the bank and its customer in case of safe deposit locker is that of ‘lessor and the bank and hence the bank cannot take stated that the bank however takes all necessary measures and precautions to safeguard the lockers its safety lockers depends upon the parameters on to avoid responsibility liability for loss of valuables kept by locker facility will depend upon the relevant facts and circumstances of each case such as the terms of the locker hiring agreement the circumstances under which the articles bailees or in any other capacity for any loss or damage to the National Bank.11 In this case the appellants had before the respondent bank in Peshawar on the payment of a fee for subsequently to the Lahore branch and finally to India in November 1961 under the Indo­Pakistan Movable Property the market value of the ornaments. Referring to the relevant would be liable in the capacity of a bailee for the loss of the is demanded on such matters would be undertaken...it is established that the defendant not take care of the goods of the parents of the plaintiff as one would under similar circumstances It is important to note that in the facts of Jagdish Chandra Trikha the High Court found that there was complete entrustment of possession of the appellant’s proved from evidence that the appellant’s predecessors had handed over a detailed list of the jewellery which was placed the customer did not have any access to the same after 8.1 However the locker service provided by the banks has Complete access to the valuables if any remained with the bank due to modernization of the locker system banks now provide system the bank allocates a locker to the customer on the locker through which he can gain partial access to the locker and the locker holder’s key is required for opening a locker providing neither with complete access. In more advanced have any receipt of the exact particulars of the articles placed inside the locker as was the case in Jagdish Chandra Trikha supra). The question that therefore arises for consideration bank locker system is that in Natioal Bank of Lahore Ltd. v Sohan Lal Saigal.12 In that case the appellant bank had provided locker service for the safe custody of valuables. The locker could be operated jointly by the locker holder and the bank’s custodian. However the respondent locker holder was Civil Court concluded that the Manager had exclusive control Court of Appeals of Ohio in Blair v. Riley13 and the Supreme Court of Illinois in National Safe Deposit Company v. Stead Attorney General 14 the Punjab and Haryana High Court held that the bailor­bailee relationship applied. In this regard the the plaintiffs then at once any impediment in the 8.3 In Mohinder Singh Nanda v. Bank of Maharashtra 15 forty­four safe keeping lockers in the Respondent bank were liable for the loss of articles if any since the bank had no “4. But there is no evidence on record to show that in the locker. Unless there is entrustment of the held responsible for the theft. The plaintiffs have 8.4 Subsequently the Punjab and Haryana High Court again undertook a comprehensive look into the present­day locker system in Atul Mehra v. Bank of Maharashtra 16 which pertained to the same bundle of facts as in Mohinder Singh that due to the robbery jewels worth Rs. 4 26 160 ­ were stolen the customer and the bank did not have notice of the same Further the appellants had not produced any evidence at the stage of trial to establish the contents of the locker “17…The respondent bank could only be fastened with liability on the contents of the locker being 18…These authorities are of no assistance to the appellants in the present case. In all these cases for bailment. Therefore I have no hesitation in coming to the conclusion that mere hiring of the of bailment as provided under Section 148 of the Indian Contract Act 1872. In order to constitute bailment as provided in Section 148 of the Act it is further necessary to show that the actual exclusive know the quantity quality or the value of the jewelry which was allegedly kept in the locker at the time when the robbery occurred. … In the present case the plaintiffs alone had the knowledge of contents of lockers therefore the plaintiffs had to if the plaintiffs had proved this peculiar fact they of the locker ipso facto would not establish a relationship of bailment between the bank and the locker holder. In order to bank had knowledge of the contents of the locker. Alternatively where the locker holder alone has knowledge of the contents 8.5 However Nijjar J. differentiated the holding in Sohan Lal entrustment and the valuation of jewelry had been proved…..On the twin grounds of exclusive entrustment thereof to the Bank it has been held Therefore in Sohan Lal Saigal entrustment of trial court. However in Mohinder Singh Nanda and of jewelry to the bank and hence the claimant locker holders were unable to succeed in obtaining relief. Nijjar J. further undoubtedly in the custody and possession of the to joint possession of the locker. The Banker can without the assistance of the bank. The hirer has access to the locker only during specified banking hours. The banker has no such limitation. It must 148 of the Indian Contract Act are complied with plaint. There being no entrustment or delivery of contemporary dual­key locker system if the bank is in the they had indeed handed over possession of certain articles for not satisfied the Court is barred from going into other issues such as whether the locker holder and the bank were in joint 8.6 Having perused the aforementioned precedents we find that what was commonly contested in all these cases is whether was contingent on determining whether possession was or inventory of the articles placed inside the locker or was the consumer fora. This aspect must be evaluated by the civil court upon appreciation of evidence led by the parties as was done in all the aforementioned decisions of Jagdish Chandra Trikha Sohan Lal Saigal Mohinder Singh 8.7 It is true that the National Commission has in previous decisions such as Punjab National Bank Bombay v. K.B Shetty 17 and Mahender Singh Siwach v. Punjab and Sind gone missing from bank lockers. Moreover in Pune Zilla Madyawarti Sahakari Bank Limited v. Ashok Bayaji Ghogare 19 the National Commission has gone to the extent of the complainants had produced detailed and precise documentary proof for corroborating the extent of jewellery placed inside the locker which has not been done in the present 8.8 In UCO Bank similar situation arose as in the his locker was tampered with and broken open and valuables bank not only disputed the value of jewellery kept inside the locker. The locker holder had only produced an affidavit in competent civil court after adducing of elaborate evidence on 8.9 In the recent case of Mamta Chaudaha v. Branch Manager Head Manager State Bank of India 20 the National not produced any evidence apart from a standard affidavit to 8.10 In light of the aforementioned conflicting decisions of the National Commission in the impugned judgment is the correct approach. In the present case the Respondent bank has not a contested fact. Hence we do not propose to record any conclusions on whether the Appellant locker holder in the agreement with the findings in the impugned judgment to the extent that the Appellant must file a separate suit before the merits of the case including as to whether the law of bailment is 9. As discussed supra imposition of liability upon the bank with respect to the contents of the locker is dependent upon provision and appreciation of evidence in a civil suit for such present case is left without any remedy. Banks as service providers under the earlier Consumer Protection Act 1986 as well as the newly enacted Consumer Protection Act 2019 owe a operating their locker or safety deposit systems. This includes against unauthorized access to the lockers and providing appropriate safeguards against theft and robbery. This duty of the locker. The banks as custodians of public property cannot 9.1 In this regard we may refer to the observations made by the opinion. In Punjab National Bank in addition to Commission also made a separate finding on the negligence of “4. The last and the most important question is whether the appellant Bank has been guilty of locker. The State Commission has taken adverse notice of the fact that the appellant Bank did not probe departmentally when the locker had been found open on the 9th June 1988and treated the locker is with the Bank the locker can be opened holder. The mechanism is however such that the custodian of the Bank that all the lockers operated locked. Such a certificate was also recorded on the 21stApril 1988. The State Commission therefore respondent complainant. This Commission fully 9.2 In Mahendar Singh Siwach the bank negligently allowed a third party who was the previous allottee of the locker complete the required formalities with respect to change of allotment from the third party to the current allottee i.e. the appellant. The National Commission arraigned the gross “…We find that the record itself proves gross opposite party Bank in rendering service. Firstly O.P. s argument is that fraud committed by Mr the contents of the locker comes under criminal Consumer Protection Act. There is no other valid argument given on behalf of the bank except to contend that they did not know the details of the same. It is also interesting to see the evidence granting bail to Mr. Grover which is reproduced committed without the connivance of the bank be allotted to Mahendra Singh Siwach in the year 1979. Further when Mahendra Singh Siwach has account No. 284 it is not understandable how the Bank could without verifying from record accept the as the key had been lost. It was necessary for the bank authorities to have referred to the bank record and should have also intimated Mahendra Singh Siwach about this request of the applicant. Not only bank authorities have prepared an inventory of the articles and the same to the applicant. It does not appear that that he was the owner of the property kept in the locker and the locker belonged to him. In these the bank authorities I think it proper to release the Manual of Instructions of United Commercial Bank This Register should be maintained lockerwise in the name(s) their addresses operational instructions rent paid etc. should be recorded. The name(s) of the The branch should also maintain a Locker Key Register. This should be maintained keywise to lockerwise and lockerwise to keywise so as to facilitate tracing the number of Locker from the Key interchanged such changes should be immediately recorded in the Locker Key Register. It should be marked ‘Strictly Private’ and should be kept in personal custody of Custodian of locker cabinets. A 12.3.1 Breaking Open of Locker Due to Loss of a) An application should be obtained from hirer(s hirer(s) the Manager Accountant and Custodian of the in Locker Register Renewal Diary and Specimen guidelines has been completely flouted by the locker key register non­payment of rent dues and lastly the procedure that should be adopted for 9.3 In Mamata Chaudaha supra) though the National noted that the relationship between the bank and the locker holders who are also the account holders of the bank will be 10. We may also refer to the circulars which the RBI has issued “1.4 Banks are also advised to give a copy of the agreement regarding operation of the locker to the Banks should exercise due care and necessary their branches on an on­going basis and take necessary steps. The security procedures should be well­documented and the concerned staff should be properly trained in the procedure. The internal auditors should ensure that the procedures are more than three years for medium risk category or one year for a higher risk category banks should to either operate the locker or surrender it. This ask the locker hirer to give in writing the reasons why he she did not operate the locker. In case the of NRIs or persons who are out of town due to a to continue with the locker. Further banks should ask the locker hirer to give in writing the reasons why he she did not operate the locker. In case the of NRIs or persons who are out of town due to a does not respond nor operate the locker banks consultation with their legal advisers for breaking left to the discretion of the individual banks to formulate the exact procedures for fulfilling this duty of care. The banks are 10.1. On 1.07.2015 the RBI issued a Master Circular No 59 2015­16 on Customer Service in Banks which included updated guidelines on locker operation. However these were Circular. Further neither of the aforementioned Circulars provide any guidance on the degree of care that needs to be bank is following its own set of procedures and there is no impression that not having knowledge of the contents of the due diligence in operating their locker facilities until the 12. Thus we emphasize that irrespective of the value of the articles placed inside the locker the bank is under a separate obligation to ensure that proper procedures are followed while c) The bank shall notify the original locker holder prior to any changes in the allotment of the locker d) Banks may consider utilizing appropriate e) The custodian of the bank shall additionally f) The bank employees are also obligated to check basis. If the same is not done the locker must be immediately closed and the locker holder shall be promptly intimated so that they may verify any electronic system the bank shall take reasonable steps to ensure that the system is protected against i) The customers’ personal data including their biometric data cannot be shared with third parties without their consent. The relevant rules under the only in accordance with the relevant laws and RBI regulations if any. Breaking open of the locker in a manner other than that prescribed under law is an of the locker. Moreover the locker shall be broken locker holder. The bank must prepare a detailed locker register before returning them to the locker holder. The locker holder’s signature should be l) The bank must undertake proper verification access to the locker. In case the locker remains inoperative for a long period of time and the locker dispose of the articles in a transparent manner in accordance with the directions issued by the RBI in The banks shall also take necessary steps to ensure that the space in which the locker facility is o) The bank cannot contract out of the minimum or reasonable cause even though he had already cleared his valuables and enquired about the status of the locker was in blatant disregard to the responsibilities that the bank 14. Thus looking to the facts and circumstances of the case we deem it appropriate to impose costs of Rs. 5 00 000 ­ on the Bank which should be paid to the Appellant as compensation The amount of Rs. 5 00 000 ­ shall be deducted from the salary of the erring officers if they are still in service. If the erring by the Bank. Additionally the Appellant shall be paid Rs 1 00 000 ­ as litigation expense 15. Before concluding we would like to make a few observations With the advent of globalization banking institutions have Both domestic and international economic transactions within the country have increased multiple folds. Given that we are have become an essential service provided by every banking by foreign nationals. Moreover due to rapid gains in technology we are now transitioning from dual key­operated lockers to customer may have partial access to the locker through passwords or ATM pin etc. they are unlikely to possess the the operation of the locker. The very purpose for which the Such actions of the banks would not only violate the relevant provisions of the Consumer Protection Act but also damage investor confidence and harm our reputation as an emerging to locker facility safe deposit facility management. The banks the date of this judgment. Until such Rules are issued the particular shall remain binding upon the banks which are