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No reservation for in-service Doctors this year: Supreme Court

There will be reduction of 50% of seats in Super Specialty courses in Tamil Nadu if the Government Order is carried out, which is detrimental to their chances of admission. Admittedly no reservation for in-service Doctors was implemented since 2016. And, no reservation could be permitted for in-service Doctors for this year, as the admission process is at the final stages, this was held in the case of Dr. Prerit Sharma &Ors. v. Dr. Bilu B.S. & Ors.(W.P.(C) No. 1299 of 2020) Writ Petition was filed by Dr. Bilu B.S., the Respondent No.1. in the appeal arising out of SLP (C) No.12891 of 2020 in the Kerala High Court seeking implementation of reservation to 40 per cent of the seats in Super Specialty Medical Courses for in-service Doctors in terms of the law laid down by this Court in Tamil Nadu Medical Officers Association v. Union of India (2020) SCC Online P. 699. By an order dated 05.10.2020, a learned Single Judge of the Kerala High Court refused to grant stay of counselling to the 40 per cent seats for in-service quota. Aggrieved thereby, the first Respondent filed the Writ Appeal which was allowed by a Division Bench of the High Court of Kerala by an order dated 07.10.2020. And further, Directorate of Medical Education, New Delhi and, Director General, Health Services were directed to follow the order and take subsequent actions. The said order of Kerala High Court on 07.10.2020, was challenged by the Petitioners who are post-graduate degree holders in Medicine and who have qualified the National Eligibility-cum-Entrance Test (NEET), 2020 for admission to Super Specialty Medical Courses for the academic year 2020-2021. And subsequently the counselling was postponed by the National Medical Commission. The petitioners contended that, it is not possible to implement the direction issued by the High Court in its order dated 07.10.2020 for the current academic year i.e. 2020-2021. Also, the information bulletin for the entrance examination for admission to Super Specialty Medical Courses has already been issued in which no reservation has been provided for in-service candidates, it is practically impossible to introduce any new reservation norms for the current academic year as the admission process has already commenced. However, the respondents argued that administrative inconvenience cannot be a ground to interfere with the order passed by the High Court directing implementation of reservation to in-service doctors in accordance with the Kerala Medical Officers Admission to Postgraduate Courses under Service Quota Act, 2008. And thus, this Court should not interfere with the order passed by the High Court as it would result in immense loss to the in-service doctors in the State of Kerala. The court was of opinion that, “The process for admissions to Super Specialty Medical Courses started on 03.08.2020 and it was made clear to all the competing candidates that there shall be no reservation to Super Specialty Medical Courses. The Government order issued by the State of Tamil Nadu on 07.11.2020 reserving 50 per cent seats for in-service doctors would be detrimental to the interests of the meritorious Doctors as 50 per cent of the available seats in the State of Tamil Nadu in Super Specialty Medical Courses will not be available to them.”

Non Reportable IN THE CIVIL APPELLATE ORIGINAL JURISDICTION Civil Appeal No.38420 Arising out of SLPNo.128920 DR. PRERIT SHARMA & ORS DR. BILU B.S. & ORS …. RespondentNo.12920 Civil Appeal Nos. 3841 38420 Arising out of SLPNos.13670 136720 O R D E R Leave granted in the special leave petitions and the Writ Petition is admitted. 1. Writ Petition No.202520 was filed by Dr. Bilu B.S. the Respondent No.1. in the appeal arising out of SLP C) No.12891 of 2020 in the Kerala High Court seeking implementation of reservation to 40 per cent of the seats in Super Specialty Medical Courses for in service Doctors in terms of the law laid down by this Court in Tamil Nadu 1 | P a g e Medical Officers Association v. Union of India2020 for admission to Super Specialty Medical Courses for the academic year 2020 2021. Notice was issued by this Court on 27.10.2020 in the Special Leave Petition filed against the order dated 07.10.2020 passed by the Division Bench of the High Court of Kerala and on the statement made by Mr. Dushyant Dave learned Senior Counsel that the National Medical Commission on 08.10.2020 decided to postpone the counselling and an order of status quo was passed and the matter was directed to be listed for hearing today. Respondent Nos.1 and 2 in the appeal arising out of SLPNo.13670 136720 filed a Writ Petition in the High Court of Madras seeking a direction to notify 50 per cent of the vacancies for in service Doctors for admission to Super Specialty Medical Courses for the academic year 2020 2021 in the State of Tamil Nadu. When the matter was listed for hearing the learned Advocate General for the State of Tamil Nadu placed GOMS No.462 Health and Family Welfaredated 07.11.2020 before the High Court and submitted that the selection for the Super Specialty Medical Courses during the academic year 2020 3 | P a g e 2021 shall be conducted by providing 50 per cent reservation for in service doctors. The Writ Petition was disposed of by a learned Single Judge of the Madras High Court by holding that the relief sought for in the Writ Petition has already been granted by the State Government by passing the GOMS No.462 dated 07.11.2020. The said order dated 09.11.2020 is in challenge before this Court in the appeal arising out of SLP C) No.128920. Writ PetitionNo. 12920 is filed by six Doctors who are eligible for admission to Super Specialty Medical Courses seeking a direction to Respondent Nos.2 and 3 therein to conduct the counselling and admission to the Super Specialty Medical Courses for the academic year 2020 2021 as per the information bulletin and not to grant any reservation to in service Doctors. 4. We have heard Mr. Dushyant Dave and Mr. Shyam Divan learned Senior Counsel appearing for the Appellant Petitioners in the Appeals and the Writ Petition. We have also heard Mr. Vikas Singh learned Senior Counsel for the National Medical Commission Mr. Sanjay Jain learned 4 | P a g e Additional Solicitor General appearing for the Union of India Mr. Jaideep Gupta learned Senior Counsel for the State of Kerala Mr. C.S. Vaidhyanathan and Mr. V. Giri learned Senior Counsel for the State of Tamil Nadu Mr. P Wilson learned Senior Counsel for the Respondents in the Appeal arising out of SLPNo.13670 136720 Mr George Varghese Perumpallikuttiyil Advocate for the first Respondent in Appeal arising out of SLPNo.128920. At the outset Mr. Dushyant Dave learned Senior Counsel brought to our notice the affidavit filed on behalf of the State of Kerala in which it is mentioned that it is not possible to implement the direction issued by the High Court in its order dated 07.10.2020 for the current academic year i.e. 2020 2021. It has been stated in the said affidavit that there are 140 postgraduate Super Specialty seats in the Government Medical Colleges and RCCs in the State of Kerala. Rank list of the candidates who qualified in the NEET PGSS 2020 shall be prepared by the National Board of Examinations on the basis of merit As the information bulletin for the entrance examination 5 | P a g e for admission to Super Specialty Medical Courses has already been issued in which no reservation has been provided for in service candidates it is practically impossible to introduce any new reservation norms for the current academic year i.e. 2020 2021. On the basis of the said affidavit filed by the State of Kerala Mr. Dave submitted that the admission to Super Specialty Medical Courses for the year 2020 2021 should be completed without any reservation to the in service doctors and the larger questions that are raised in the appeal can be decided at the later stage. 6. Mr. Jaideep Gupta learned Senior Counsel appearing for the State of Kerala stated that it might not be possible to implement the reservations for in service candidates at this stage for the academic year 2020 2021 as the admission process has already commenced. However he stated that the legislation made by the State providing for reservation to in service doctors has been upheld by this Court and the State has the power to provide reservation to in service Doctors in super specialties. Mr. George Varghese Perumpallikuttiyil supported the order passed by 6 | P a g e the High Court by arguing that the Kerala Medical Officers Admission to Postgraduate Courses under Service Quota Act 2008 and the Rules made thereunder provided for a service quota to in service doctors for admission to Super Specialty Courses and Postgraduate Courses. He submitted that the said Act was upheld by this Court in its judgment in Tamil Nadu Medical Officers Association v. Union of Indiathat the judgment shall operate prospectively They further contended that the Rules of the game cannot be changed mid stream and no reservation can be provided for this academic year i.e. 2020 2021 as the procedure for selections for admission to Super Specialty 8 | P a g e Medical Courses commenced a long time back. Though the learned Senior Counsel made submissions on the correctness of some findings of the Constitution Bench in Tamil Nadu Medical Officers Association v. Union of India we are not inclined to entertain such submissions at this stage. We have made it clear to them that arguments are heard only for the purpose of granting 8. Mr. Sanjay Jain learned Additional Solicitor General supported the submissions made on behalf of the Petitioners that it has been clearly laid down by this Court in Jagdish Saran v. Union of India2 SCC 768 Dr. Pradeep Jain & Ors. v. Union of India & Ors 1984) 3 SCC 654 Dr. Preeti Srivastava and Another vs. State of M.P. and Others7 SCC 120 and Indira Sawhney & Ors. v. Union of India & Ors.SCC 217) that there can be no reservation in Super Specialty Courses and that the Constitution Bench was only concerned with the postgraduate courses in Tamil Nadu Medical Officers Association v. Union of India2 SCC 538 that reservation is permissible in Super Specialty Medical Courses which was reiterated in and Modern Dental College and Research Centre & Ors. v. State of Madhya Pradesh & Ors. 7 SCC353. Mr. Wilson submitted that the prospectus itself is contrary to the earlier judgments of this Court. Even without following the judgment of this Court in Tamil Nadu Medical Officers Association v. Union of India it was incumbent on the part of the National Medical Commission 12 | P a g e and the Union of India to implement the law laid down by this Court by providing for reservation for in service doctors in Super Specialty Medical Courses. 11. Though the learned counsel appearing for the Petitioners made an attempt to argue that the judgment of the Constitution Bench in Tamil Nadu Medical Officers Association v. Union of India supra) requires reconsideration we prevented them from doing so as we made it clear that the hearing today is only for the purpose of deciding whether the counselling for Super Specialty Medical Courses for the year 2020 2021 should be held without providing reservations for in service doctors. 12. The information bulletin for NEET SS 2020 was issued on 03.08.2020. The examination date was scheduled to be held on 15.09.2020 the results of which were to be declared on 25.09.2020. We are informed that the examination was held as per schedule and results were declared on the date fixed. It was made clear in point 5.16 of the bulletin that there shall be no reservations of seats for Super Specialty DM MCH Courses. The Medical Counselling Committee issued the counselling scheme for 13 | P a g e 100 per cent All India Quota for NEET Super Specialty DM MCH DMB 2020 2021 in which it was made clear that there shall be no reservation for Super Specialty Medical Courses while referring to the judgment by this Court in Dr. Preeti Srivastava and Another vs. State of M.P and Othersand Dr. Sandeep Sadashivrao v Union of India & Ors.2 SCC 328. The counselling for admission to Super Specialty Medical Courses was postponed. The State of Tamil Nadu issued GOMS No.462 dated 07.11.2020 by which a decision was taken to reserve 50 per cent of the Super Specialty seats in Government Medical Colleges in the State of Tamil Nadu for in service candidates. The basis for the said order is the judgment of this Court in Tamil Nadu Medical Officers Association v. Union of India and the opinion of the learned Advocate General for the State of 13. Kerala Medical Officers Admission to Postgraduate Courses under Service Quota Act 2008 provides for 40 per cent reservation for in service doctors in admission to the Super Specialty Medical Courses. Admittedly the Act was 14 | P a g e not implemented for the years 2017 2019. By the impugned order the High Court directed the concerned authorities to carry out the provisions of the Act and provide reservation to in service Doctors. However the State of Kerala has shown its inability to implement the said Act for admission to the Super Specialty Medical Courses for the current academic year i.e. 2020 2021 14. As stated supra several submissions ranging from the correctness of the judgment of this Court in Tamil Nadu Medical Officers Association to the applicability of the judgment of super speciality courses have been made on behalf of the Petitioners. Other points pertaining to permissibility of reservations for admission to Super Specialty courses in view of the earlier judgments of this Court and interpretation of Regulation 9 of the 2017 Regulations framed by the MCI are to be considered in 15. The process for admissions to Super Specialty Medical Courses started on 03.08.2020 and it was made clear to all the competing candidates that there shall be no reservation to Super Specialty Medical Courses. The 15 | P a g e Government order issued by the State of Tamil Nadu on 07.11.2020 reserving 50 per cent seats for in service doctors would be detrimental to the interests of the meritorious Doctors as 50 per cent of the available seats in the State of Tamil Nadu in Super Specialty Medical Courses will not be available to them. We are not in agreement with the submission of Mr. Vaidyanathan and Mr. Giri that nobody will be prejudiced if the Government Order is given effect to. There will be reduction of 50% of seats in Super Specialty courses in Tamil Nadu if the Government Order is carried out which is detrimental to their chances of admission. Admittedly no reservation for in service Doctors was implemented since 2016. As the admission process is at the final stages we cannot permit reservation for in service Doctors for this year 16. We make it clear that we have not expressed any opinion on the validity of GOMS No.462 of 07.11.2020 We direct that the counselling for admission to Super Specialty Medical Courses for the academic year 2020 2021 shall proceed on a date to be fixed by the competent authority without providing for reservations to in service 16 | P a g e doctors for the academic year 2020 2021. We reiterate that the above direction would be operative only for the current academic year i.e. 2020 2021 17. List the Appeals and the Writ Petition for hearing in February 2021. ...................................J L. NAGESWARA RAO New Delhi November 27 2020 17 | P a g e

A proceeding can be quashed under section 482 of the Code of Criminal Procedure: High Court Of Jharkhand

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

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 5621 1. Binoy Kumar Jha @ Binay Kr. Jha aged 56 years S o Nitya Nand Jha R o Village House No.87 Ward No.02 P.O. & P.S. Pathrol Dist 2. Vikash Kumar Jha @ Bikash Kr. Jha aged 25 years S o Bameshwar Nath Jha R o Village Lakhibazaar Jamini P.O. & P.S. Pathrol Dist 3. Bameshwar Nath Jha aged 50 years S o Harendra Nath Jha R o House No.86 Ward No.02 near durga mandir P.O. & P.S. Pathrol District Deoghar 4. Nalini Kumar Jha @ Nalini Jha aged 44 years S o Shivnath Kumar Jha R o village Lakhi Bazaar P.O. & P.S. Pathrol District Deoghar 5. Ashutosh Kumar Jha @ Asutosh Kr. Jha aged 42 years S o Shivnath Kumar Jha R o House No.86 Ward No.02 P.O. & P.S. Pathrol District 6. Rajeev Kumar Jha @ Rajiv Kr. Jha aged 35 years S o Shivnath Kumar Jha R o House No.86 Ward No.02 P.O. & P.S. Pathrol District Shivnath Jha aged 67 years S o Harendra Nath Jha House No.86 Ward No.02 P.O. & P.S. Pathrol District Deoghar 8. Abhay Kumar Jha aged 29 years Binoy Kumar Jha R o Ward No.02 P.O. & P.S. Pathrol District Deoghar 9. Ajay Kumar Jha aged 32 years S o Binoy Kumar Jha R o village Jamuni P.O. & P.S. Pathrol District Deoghar … Petitioners The State of Jharkhand … Opposite Party Versus CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI For the Petitioners For the Opposite Party State Mr. Nitish Bhardwaj Advocate Mr. Shailendra Kumar Tiwari Spl.P.P. Heard Mr. Nitish Bhardwaj learned counsel for the petitioners and Mr. Shailendra Kumar Tiwari learned Spl.P.P. appearing for the opposite party State. This petition has been taken through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID 19 pandemic. None of the parties have complained about any technical snag of audio video and with their consent this matter has been The petitioners have filed this petition for quashing the order taking cognizance dated 14.09.2020 passed by the learned S.D.J.M. Madhupur in connection with Pathrol P.S. Case No.56 2019. The prosecution story in the FIR is that the complaint petition being Complaint Case No.163 2019 was filed by the complainant namely Godawari Devi which was sent under Section 156(3) Cr.P.C. for institution of FIR and accordingly the present FIR has been lodged alleging therein that on 14.05.2019 all the accused persons were making drainage and the complainant was also doing the same and all the accused gathered there and started abusing the complainant and for that complainant s son informed the O c of Pathrol Police Station. On 14.05.2019 at 04:00 p.m. accused namely Abhay Kumar Jha clutched the complainant by her hair and dragged her to the road where all the accused persons torn her dress and Abhay Kumar Jha forcefully opened her mouth and pour the stool into her mouth with statement that the complainant is a witch. It was further alleged that all the accused snatched a silver chain of 5 grams worth Rs.4 000 and a payal of silver of 8 grams worth Rs.6 500 and also alleged that the complainant is a witch who use to kill children and cattle Learned counsel for the petitioners submits that the matter was investigated by the police and after investigation the police has not sent up the petitioner for trial and submitted final report in favour of the petitioners showing their name in column 12 of the final report bearing Final Report No.20 2019 dated 31.12.2019 showing that offences non cognizable. After submission of final report in favour of the petitioners the learned Magistrate has taken cognizance against the petitioners under Sections 323 504 34 of IPC vide order dated 14.09.2020 although the Investigating Officer after investigation not sent up for trial to these petitioners. He further submits that the learned Magistrate has taken cognizance against the petitioners in a mechanical manner and without assigning any reason as to why he is differing from the opinion of the Investigating Officer who after investigation not sent up these petitioners for trial. He also submits that the learned Magistrate has power to differ from the opinion of the Investigating Officer but in that condition he has to assign reason as to why he is differing from the opinion of the Investigating Officer. Learned Spl.P.P. appearing on behalf of the opposite party State submits that there is no illegality in the impugned order. He further submits that it is well within the domain of the Magistrate to proceed further if he comes to a conclusion that there is prima facie case to proceed against the In view of the above facts the Court has examined the F.I.R as well as complaint petition. The police after investigation the police has not sent up the petitioners for trial and submitted the final report in favour of the In the judgment rendered in the case of Prathvi Raj Chauhan v Union of India and Others reported in4 SCC 727 it has been held that the proceeding can be quashed under section 482 of the Code and it is held in paragraph no.12 of the said judgment which is quoted herein below : “12. The Court can in exceptional cases exercise power under Section 482 CrPC for quashing the cases to prevent misuse of provisions on settled parameters as already observed while deciding the review petitions. The legal position is clear and no argument to the contrary has The law is well settled with regard to material under section 202 Cr.P.C which has been considered by the Hon ble Supreme Court in the case of Swaraj Thackeray v. State of Jharkhand and Ors reported in 2008) CriLJ 3780. Paragraph no.7 of the said judgment is quoted herein 10. Subsequently the Hon ble Supreme Court has held in the case of Dy Chief Controller of Imports and Exports v. Roshanlal Agarwal and Others reported in4 SCC 139 at paragraph no.9 which is quoted “7. From the impugned order I find that the learned Magistrate after considering the allegations made in the complaint petition and the materials adduced during enquiry under Section 202 Cr.P.C found prima facie case made out for commission of the offence under section 153 A 153 B and 504 of the Indian Penal Code against the petitioner Swaraj Thackeray @ Raj Thakeray and thereafter directed the complainant to file requisite for issuance of process. At the stage of taking cognizance a detailed order discussing the evidence in detail is not required to be passed by the Magistrate. The order taking cognizance but should show that the Magistrate has applied his mind before taking cognizance and from the impugned order it appears that the Magistrate after applying his mind has taken cognizance and therefore it cannot be said that the impugned order suffers from non application of mind.” “9. In determining the question whether any process is to be issued or not what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused the Magistrate is not required to record reasons. This question was considered recently in U.P. Pollution Control Board v. Mohan Meakins Ltd. and after noticing the law laid down in Kanti Bhadra Shah v. State of W.B. it was held as follows:5 SCC 749 in which the Hon’ble Supreme Court has held that to set criminal proceeding in motion is a serious matter which requires to be looked into minutely. Accordingly the order taking cognizance dated 14.09.2020 passed by the learned S.D.J.M. Madhupur in connection with Pathrol P.S. Case No.56 2019 is hereby quashed This criminal miscellaneous petition is therefore allowed and Ajay (Sanjay Kumar Dwivedi J

Under Section 67 of the NDPS Act can be used limited to the extent permissible under Section 27 of the Indian Evidence Act: Delhi High Court.

The Narcotic Drugs and Psychotropic Substances Act, 1985, commonly referred to as the NDPS Act, is an Act of the Parliament of India that prohibit a person the production/manufacturing/cultivation, possession, sale, purchase, transport, storage, and/or consumption of any narcotic drug or psychotropic substance. Section 67 of the NDPS Act states “Power to call for information, etc. Any officer referred to in section 42 who is authorized in this behalf by the Central Government or a State Government may, during the course of any enquiry in connection with the contravention of any provisions of this Act”. The judgment was given by the High court of Delhi in the case of Mahmood Kurdeya vs. Narcotics Control Bureau, Case no. [1030/2021] By the Hon’ble Ms. Justice Mukta Gupta. The counsel for petitioner was Mr. Anoop Kumar Gupta, Advocate and counsel for respondent represented by Mr. Subhash Bansal, Sr Standing Counsel for NCB with Mr. Shashwat Bansal, Adv. The petitioner is a 23 old, Syrian national staying in Delhi as refugee pursuant to the registration and verification by the UNHCR since 2015 and has been falsely implicated in case no. viii/28/dzu/2018 of the respondent. The respondent on 24 the September, 2018 give a secret information was received by NCB officer that a Turkish national, namely, Erbil Han aged about 27 years is departing from IGI Airport by Turkish Airlines flight 717 at 0615 hours and was suspected to have concealed huge quantity of narcotics or psychotropic drugs in his baggage. After giving necessary permission from Superintendent, the NCB teams search the petitioner but not recovered anything from personal search but in his red bag a large quantity of drugs recovered. The counsel for the petitioner contends that the only evidence linking the petitioner to the contraband recovered is the statement recorded under Section 67 of the NDPS Act by the officer. The counsel further stated that the statement given by the co-accused Arjun Elawd stands retracted. The co-accused Arjun Elawadi who was the alleged manufacturer and supplier of the banned substance who ultimately, financially gained from the alleged transaction has already been granted regular bail by the Court and hence on parity the petitioner is also entitled to bail. Further the counsel said that the statement recorded by the NCB under section 67 of the NDPs Act cannot be voluntary because the petitioner do not understand Hindi or English either and no translator was provided by the respondent. The counsel for the respondent that said that from the petitioner red bag large quantity of Tramadol hydrochloride table with manufacturing date of July 2017 & expiry date of June 2020 recovered. The counsel further said that from another bag of the petitioner , containing 1900 strips of 10 tablets. The counsel stated that the petitioner was provided a translator. Further Erbil Han had a photograph of the petitioner which he identified and put his signature thereon. And four guarantee cards were found in the bag which revealed the shop from where bags where purchased. And the shop owner showed photo of the petitioner which he identified stating that the petitioner purchased the bags. After hearing the both side of counsel, the court said that the statement of petitioner was recorded voluntary and from the CCTV footage it was cleared that the bags belongs to the petitioner. Further, the owner of bag shop also identified that the petitioner was one who purchased bag from shop. Further, mirror image of the mobile phone of the petitioner was taken from which incriminating evidence in the form of photographs of weighing of trolley bags, photos of weighing of tablets, photos of recovered trolley bags, photos of Erbil Han counting cash, photo of hotel card, etc. were recovered which connect the petitioner with the illegal trafficking of Tramadol tablet and exporting thereof in violation of the provisions of the NDPS Act. The Court relied upon Supreme Court on judgment of Toofan Singh Vs. State of Tamil Nadu [2021] 4 SCC 1 was stated that “the statement recorded by the respondent under Section 67 of the NDPS Act can be used limited to the extent permissible under Section 27 of the Indian Evidence Act”. However, at noted above, pursuant to the statement of Erbil Han, CCTV footage of the hotel showed the petitioner entering the hotel with the bags that contained the contraband. The said evidence can be used under Section 27 of the Evidence Act against Erbil Han and as substantive evidence in the form of CCTV footage against the petitioner. Cannot be said that there is no legally admissible evidence against the petitioner to demonstrate his complicity in the alleged infringement, at this stage this Court finds no basis for grant bail to the petitioner. Therefore the petition was dismissed.

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 15th July 2021 Decided on: 24th August 2021 BAIL APPLN. 1030 2021 MAHMOOD KURDEYA Petitioner Represented by: Mr. Anoop Kumar Gupta Adv. NARCOTICS CONTROL BUREAU Respondent Represented by: Mr. Subhash Bansal Sr Standing Counsel for NCB with Mr. Shashwat Bansal Adv. HON BLE MS. JUSTICE MUKTA GUPTA By this petition the petitioner seeks regular bail in Sessions Case No. 156 2019 under Sections 22 23 29 NDPS Act on a complaint filed by the respondent NCB. Learned counsel for the petitioner contends that the petitioner is a 23 old Syrian national staying in Delhi as refugee pursuant to the registration and verification by the UNHCR since 2015 and has been falsely implicated in case No. VIII 28 DZU 2018 of the respondent. Being a refugee there is no likelihood that the petitioner can flee this country. The petitioner is in custody since 27th September 2018 and the trial is likely to take a lot of time. No recovery has been made from the petitioner and thus no case is made out against the petitioner. Even on the personal search and search of BAIL APPLN. 1030 2021 the house of the petitioner nothing incriminating was recovered. Learned counsel for the petitioner contends that the only evidence linking the petitioner to the contraband recovered is the statement recorded under Section 67 of the NDPS Act by the officer of the respondent which in view of the decision of the Hon’ble Supreme Court in Toofan Singh Vs. State of Tamil Nadu4 SCC 1 is inadmissible in evidence and cannot be used to implicate the petitioner. The statement made by the co accused Arjun Elawadi stands retracted. The co accused Arjun Elawadi who was the alleged manufacturer and supplier of the banned substance who ultimately financially gained from the alleged transaction has already been granted regular bail by the Court and hence on parity the petitioner is also entitled to bail. Further the so called voluntary statement recorded by the NCB under Section 67 of the NDPS Act cannot be voluntary for the reason the petitioner neither understands Hindi nor English and admittedly no translator was made available to the petitioner at the time of recording of the statement. While granting regular bail to Arjun Elawadi the learned Special Judge noted that the said applicant has not indulged in manufacture sale or purchase of the contraband tablet after the notification dated 13th July 2018 and since the drug has allegedly been manufactured and sold prior to the date of notification no offence can be made out. Case of the prosecution is that on 24th September 2018 a secret information was received by NCB officer that a Turkish national namely Erbil Han aged about 27 years is departing from IGI Airport by Turkish Airlines flight 717 at 0615 hours and was suspected to have concealed huge quantity of narcotics or psychotropic drugs in his baggage. After necessary permission from Superintendent a team was deputed and Erbil Han was BAIL APPLN. 1030 2021 intercepted however nothing was recovered from his personal search. When his red colour trolley bag was opened it was found full of tablets which were kept in bundles of 10 strips and bound with rubber band. One of the strips was taken out and examined. It contained Tramadol Hydrochloride tablet with manufacturing date of July 2017 and expiry date of June 2020. In total 6500 strips with each strip containing 10 tablets were recovered. One strip weighed around 4 grams. Thereafter two samples of two strips each containing 10 tablets were taken out and put in a zip lock pouch which was then kept in a white colour envelope separately and marked as ‘A 1’ and ‘A 2’. Remaining tablets were put inside the same red colour trolley bag and put in a gunny bag and marked as ‘A’. Thereafter another black colour trolley bag of Erbil Han was opened which also contained 1900 strips of 10 tablets each with manufacturing of July 2017 and expiry of June 2020. The said tablets were of Tramadol X 225. Similarly two strips were kept as samples and rest of the recovery was kept back in the trolley bag and kept in a gunny bag duly sealed and marked as ‘B’. Statement of Erbil Han under Section 67 of the NDPS Act was recorded in the presence of a translator. He disclosed the name of the petitioner who allegedly gave him tablets on the night of 23rd September 2018. Erbil Han had a photograph of the petitioner which he identified and put his signature thereon. Four guarantee cards were found in the bags which revealed that the bags were purchased from Shagoon Emporium Arya Samaj Road Karol Bagh from where inquiry was conducted about the purchase of the bag showing the guarantee cards. According to the said shop owner the bags were purchased from his shop by the petitioner. The shop owner Mr. Arvind Birla was shown the photograph of the petitioner which BAIL APPLN. 1030 2021 he identified stating that the petitioner purchased the bag. Owner of the shop was asked to inform as and when the petitioner again comes or is seen. Within two hours of the NCB leaving the shop owner of the shop made a phone call that the petitioner was present in the market. According to the respondent petitioner was spotted in the market and immediately served with summons under Section 67 of the NDPS Act and directed to appear in the office of the respondent to tender his voluntary statement. It is the case of the respondent that the petitioner came in car bearing registration No. DL 1CL 5189. Petitioner’s residence was also searched however nothing incriminating was recovered. The petitioner was taken into custody on 26th September 2018 and on 27th September 2018 he was produced before the Sessions Judge who sent him to Police custody till 29th September 2018. On 1st November 2018 the third accused Arjun Elawadi who allegedly supplied and manufactured the banned substance Tramadol Hydrochloride was served with the notice and in his statement he stated that the said drugs were manufactured by M s. Serve Pharmaceuticals and from thereon purchased by Imusi International. Arjun Elawadi was the director and partner of both M s. Serve Pharmaceuticals and Imusi International and he was arrested on 19th March 2019. The car in which the petitioner had gone to join the investigation was seized on the ground that it was the same car in which contraband was taken. The said car was registered in the name of one Mohammad Al Kamel which person has not been traced and apprehended till date. On 19th March 2019 when Arjun Elawadi was arrested he stated that he had sold the contraband to Mohammad Al Kamel. A perusal of the complaint filed by the respondent reveals that after BAIL APPLN. 1030 2021 the voluntary statement of Erbil Han was recorded the officers of the respondent reached Hotel Indira International and collected the CCTV footages thereof. As per the CCTV footages the present petitioner is seen coming inside the hotel along with the two bags which were seized from Erbil Han. Erbil Han was helping the petitioner and both of them carried the bags inside the hotel. Further the guarantee card recovered from the seized trolley bags also disclosed the name of the shop owner from where the two bags were purchased and the owner of the shop Arvind Birla identified the petitioner who purchased the bags and on his informing the petitioner was found in the market on 25th September 2018. Further mirror image of the mobile phone of the petitioner was taken from which incriminating evidence in the form of photographs of weighing of trolley bags photos of weighing of tablets photos of recovered trolley bags photos of Erbil Han counting cash photo of hotel card etc. were recovered which connect the petitioner with the illegal trafficking of Tramadol tablet and exporting thereof in violation of the provisions of the NDPS Act. Besides the CCTV footages statement of hotel manager of Indira International Hotel was also recorded. As held by the Hon’ble Supreme Court in Toofan Singh the statement recorded by the respondent under Section 67 of the NDPS Act can be used limited to the extent permissible under Section 27 of the Indian Evidence Act. However at noted above pursuant to the statement of Erbil Han CCTV footage of the hotel showed the petitioner entering the hotel with the bags that contained the contraband. The said evidence can be used under Section 27 of the Evidence Act against Erbil Han and as substantive evidence in the form of CCTV footage against the petitioner. Further from BAIL APPLN. 1030 2021 the mirror image of the phone of the petitioner photos of weighing of bags contraband and cash etc. was also recovered which is also substantive evidence against the petitioner. 10. Contention of learned counsel for the petitioner that no invoice voucher etc. of the sale of trolley bags were recovered would not be sufficient to discard the recovery of the guarantee cards which were found in the trolley bags and from which the petitioner could be traced. 11. Further the petitioner cannot claim parity with Arjun Elawadi as the tablets were manufactured by M s. Serve Pharmaceuticals run by Ugrasen father of Arjun Elawadi who sold to Imusi International run by Arjun Elawadi at Sarita Vihar Delhi. According to the learned trial court manufacture and sale of the Tramadol tablet by Arjun Elawadi did not take place after the notification dated 13th July 2018. 12. According to the petitioner when the matter was listed for framing of charge before the learned Trial Court both the petitioner and the co accused Erbil Han had difficulty in understanding English language which shows that the statements recorded under Section 67 of NDPS Act were not voluntary. As noted above in the present case there is substantive evidence against the petitioner dehors the statement under Section 67 NDPS Act in the form of CCTV footages and the photos in the mobile phone of the petitioner. 13. Considering the fact that the petitioner is involved in trafficking of commercial quantity of contraband i.e. 50 kgs 800 gms and it cannot be said that there is no legally admissible evidence against the petitioner to show his complicity in the alleged offence at this stage this Court finds no ground to grant bail to the petitioner. BAIL APPLN. 1030 2021 14. Petition is dismissed. 15. Order be uploaded on the website of this Court. MUKTA GUPTA) AUGUST 24 2021 BAIL APPLN. 1030 2021

Sections 29 and 30 of the POCSO Act do not absolve the prosecution of its duty to establish the foundational facts: High Court of Tripura

Establishment of fundamental facts by the prosecution acts as a safety guard against misapplication of statutory presumption since prosecution has to establish a prima facie case beyond a reasonable doubt. Only after this, the accused will be under obligation to rebut the presumption that arises, by adducing evidence with a standard of proof of preponderance of probability. This auspicious judgment was passed by the High Court of Tripura in the matter of SRI LALMALSOM KAIPENG V. THE STATE OF TRIPURA [CRIMINAL APPEAL (J) 34 OF 2019] by Honourable Chief Justice Akil Kureshi and Honourable Justice Arindam Lodh. This appeal was directed against the judgment and order of conviction and sentence passed by the learned Special Judge, Gomati Judicial District, Udaipur whereunder the appellant was convicted under Section 6 of Protection of Children from Sexual Offences Act and was sentenced to rigorous imprisonment for 10 years. The facts of the case are that the complaint against the accused Lalmalsom Kaipeng was filed by Sri Ramlian Malsom whose younger sister’s daughter, aged 8 years, was taken to a nearby jungle and was raped. His sister, Daisingh Kaipeng, came to know about this incident through her daughter and confronted him about it but due to social shame they did not divulge the incident soon after the incident. Later on the basis of an ejahar a case was lodged under Section 376(2)(i)/506 of IPC and Section 6 of the POCSO Act while the accused agreed to a trial and pleaded non-guilty. The prosecution contended that there was no room for a suspect since the prosecution succeeded in establishing the foundational facts in the instant case and also corroborated medical evidence since the findings of the examining doctor clearly established the prosecution case. Whereas upon further examination of the victim’s statement she confessed that her mother had specifically instructed her to confess some parts of it. Additionally, the doctor in her final opinion opined that there was no sign of recent intercourse, but hymen was ruptured (15days or a month old) and there were abdominal pain and urinary problem. In this case, the court noted that “the maternal uncle admitted that there was a dispute regarding boundary of the houses of the victim and the appellant and the victim’s mother demanded a pig for settlement.” Additionally, the court observed that “the victim and her mother are categoric in their statements that after intercourse the victim sustained injuries in her private parts that caused bleeding.” However, “in regard to the fact of injuries at her private parts, some kinds of the mark of injuries in the nature of swelling, red mark could be detected by the Doctor. But the medical report clearly reveals that there was no mark of injury not only in any of her private parts as well as nowhere of her person.” Thus, the court stated, “In view of the statements coupled with the medical evidence, we find various inconsistencies which appear to be so irreconcilable, are sufficient to suspect the very genesis of prosecution case. Even the prosecution has failed to establish the foundational facts relating to rape and the doctrine of reverse burden can be garnered from the prosecution witnesses.” Thus, the court stated that “presumptions under Sections 29 and 30 of the POCSO Act do not take away the primary duty of prosecution to establish the fundamental facts. This duty is always on the prosecution and never shifts to the accused. POCSO Act has no different connotations.” Adding to this the HC also said that, “limited presumption does not upset the basic features of criminal law. Tendering of the oral evidence by accused is not mandatory or essential.” Since the prosecution failed to establish foundational facts the Court held that, “The appellant is entitled to benefit of doubt. Accordingly, Lalmalsom Kaipeng is acquitted of the charges leveled against him on the benefit of the doubt and set at liberty.”

THE HIGH COURT OF TRIPURA CRL A34 OF 2019 Sri Lalmalsom Kaipeng S o Sri Neldhansek Kaipeng of Palku Colony PS Taidu District Gomati Tripura. …. Appellant HON’BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON’BLE MR. JUSTICE ARINDAM LODH Vs The State of Tripura For the appellant For the State respondent Date of hearing Date of delivery of Judgment & Order Mr. Sankar Bhattacharjee Legal aid counsel. Mr. Sumit Debnath Additional Public Prosecutor. Whether fit for reporting : NO JUDGMENT & ORDER Arindam Lodh J.) This appeal is directed against the judgment and order of conviction and sentence dated 27.03.2019 passed by the learned Special Judge Gomati Judicial District Udaipur in case No. Special 08of 2018 whereby and whereunder the appellant has been convicted under Section 6 of Protection of Children from Sexual Offences Act Page 2 and sentenced him to suffer rigorous imprisonment for 10years and to pay fine of `25 000 with default stipulation. The prosecution case in brief is that one Sri Ramlian Malsom lodged a written ejahar with the O.C. Taidu Police Station on 31.07.2018 inter alia stating that on 29.07.2018 at about 12:00 noon accused Lalmalsom Kaipeng took his younger sister’s daughter aged 8 years to the nearby jungle and committed rape on her. This was informed to his sister by his niece and thereafter on 31.07.2018 his sister Daisingh Kaipeng told him about the incident. Due to social shame they did not divulge the incident soon after the incident. On receipt of the ejahar Taidu PS FIR No.12 2018 under Section 376(2)(i) 506 of IPC and Section 6 of the POCSO Act was registered and the OC himself took up the investigation and on completion of investigation charge sheet was submitted under the aforesaid sections. Charge was framed against the accused appellant under Section 376(2)(i) 506 of IPC and Section 6 of the POCSO Act to which the accused appellant pleaded not guilty and claimed to be tried. During trial prosecution examined as many as 17 witnesses and on closure of prosecution evidence the accused appellant was examined under Section 313 CrPC to which he denied the veracity of the Page 3 prosecution evidences. The accused appellant declined to adduce any defence witness on his behalf. Having heard the learned counsels appearing for the parties and after consideration of the evidence and materials brought on record the learned Special Judge convicted and sentenced the accused appellant as Being aggrieved the appellant has preferred the instant appeal aforestated. before this Court. Mr. S. Bhattacharjee learned counsel appearing for the convict appellant has submitted that the prosecution has miserably failed to establish the charges framed against the appellant. There are substantial improvements and exaggerations the deposition of prosecution witnesses. Further according to learned counsel for the appellant the ocular versions of the prosecution witnesses particularly the victim was not supported by the medical evidence. Learned counsel for the appellant has prayed for acquittal of the appellant. Per contra Mr. S. Debnath learned Additional Public Prosecutor would contend that there was no room to suspect the prosecution case. The prosecution witnesses had been able to prove the facts and circumstances that the victim was taken to a forestby the Page 4 appellant where he committed rape. Learned Additional PP has further submitted that the Doctor who examined the victim after the incident deposed that the victim was suffering from acute pain in urinating which findings clearly established the prosecution case that the victim was raped by the appellant and none else. We have given our thoughtful consideration to the rival submissions advanced by the learned counsels appearing for the parties. Keeping in mind the aforesaid submissions we shall proceed to determine the sustainability of the conviction and sentence as declared by the learned Special Judge against the appellant. PW 1 Smt. Daisingh Kaipang the mother of the victim deposed that about 3 4 months ago from the date of her deposition on one Sunday around noon time she went to the ‘jum’ cultivation and when she was returning home she met one Chinglu Kaipang who told her that the appellant committed rape upon her daughter who was 7 years old in a jungle near a mango tree. Reaching home she found her daughter was crying and being asked the victim narrated the incident of rape by the appellant upon her by opening her panty. Thereafter PW 1 informed the incident to her brother Ramlian Malsom who subsequently lodged the complaint to the police. PW 1 further deposed that during investigation Page 5 police recorded the statements of the victim under Section 164 of CrPC. The police also arranged for her daughter’smedical examination. During her cross examination her attention was drawn to her statement recorded under Section 161 CrPC where she admitted that she did not state any such statement to the police that the appellant opened the clothes of the victim and committed rape. She further stated being confronted with cross examination that they had a dispute with the appellant on the issue of boundary. She also admitted that for mutual settlement of the dispute they demanded a pig from the appellant. PW 2 the victim girl deposed that about 3 4 months ago from the date of her deposition on one Sunday around noon time she was playing with the baby of the appellant. At that time the appellant caught hold of her hand and took her to the nearby jungle and offered her money with a currency note. Thereafter the appellant opened her clothes and panty and committed rape upon her. She sustained bleeding injury in her private parts and also was having problem in urination. The appellant told her not to tell the incident to anybody. She further deposed that she told her mother about the incident when she came to the house from ‘jum’ cultivation. Thereafter her mother told the incident to others including the police. The police took her to a Magistrate to give her statement. She was examined by Page 6 the Doctor. Being confronted with cross examination PW 2 the victim stated that there were other houses near their house. Most striking feature in her cross examination was that what she stated before the Magistrate her mother told her to state. When her attention was drawn to her statements recorded under Section 161 of CrPC and 164 of CrPC the statements she made before the authorities concerned that the appellant took her to the jungle by catching her hand and that she told the incident to her mother and that her mother told to others were not found. PW 3 Sri Ramlian Malsom during his deposition stated that on 31.07.2018 at about 10 am her younger sister PW 1 informed him that on 29.07.2018 the appellant committed rape upon her daughter i.e. his niece. Thereafter he enquired the matter from the victim herself when she confirmed the fact of rape and the place of such rape. PW 3 further deposed that the victim complained of pain in her private parts. Thereafter he lodged the FIR at Taidu PS. He identified his signature in the ejahar During cross examination PW 3 admitted that there was dispute between the appellant and his sisterregarding boundary of their residential houses. He also admitted the fact that for settling the dispute her sister demanded a pig from the appellant. He further stated that Page 7 there were many other houses in the locality of her sister. But he admitted that there was no jungle near the house of her sister. PW 4 is the interpreter. PW 5 Smt. Chengru Kumari Malsum is an independent witness who deposed that after 3 4 days of the incident victim told her that the appellant committed sexual intercourse with her by opening her panty. At the time of incident her mother was not present in the house. She told this to her mother when she came from her ‘jum’ PW 6 Smt. Nagar Bhakti Malsom is a police constable who stated that on 31.07.2018 she was on law and order duty on Lungfung Road along with other staff at about 12 noon. At that time the mother of the victim told that her daughter was raped by the convict appellant. She interpreted the versions of the victim and her mother from Kaipeng language to Bengali language and it was written by the police officer. PW 7 Dhan Daulat Kaipeng stated in his deposition that about five months ago from the date of his deposition one day mother of the victim told him that accused appellant had committed rape upon the victim. Thereafter he asked the victim and she also told that the accused appellant had committed rape on her. In his cross examination he stated that he was not interrogated by the police. Page 8 PW 8 Naikhasiam Malsom stated nothing about the incident. PW 9 Kanak Kalai is the scribe of the ejahar. He deposed that he wrote the ejahar as per the version of Ramlian Malsom. In cross examination PW 9 denied that the ejahar was a creation of his imagination. PW 10 Ratish Chakraborty and PW 11 Biswajit Sutradhar are the two constables. They are the seizure witnesses in respect of seizure of the school certificate of the victim by the IO. PW 12 Dip Kumar Debbarma is the Teacher in charge of Lungfung S B School. He deposed that on being asked by the IO he issued the school certificate of the victim and it was seized by the IO when he put his signature in the seizure list. PW 13 is the Medical Officer namely Dr. Jemi Debbarma. He deposed that on 31.07.2018 he was posted as Medical Officer at Ompi CHC. On that day he examined Lalmalsom Kaipeng on his potency and opined that he was capable of performing sexual intercourse. He prepared his report and on identification the said report was marked as Exbt.4 and his signature as Exbt.4 1. PW 14 Smt. Dorothy Jamatia is the Judicial Magistrate who recorded the statement of the victim under Section 164(5) of CrPC and she has stated to the same effect. Page 9 PW 15 S.I. Palash Dutta is the IO of the case. In course of his deposition the IO stated that he visited the place of occurrence prepared hand sketch map with separate index examined the available witnesses and recorded their statements under Section 161 of CrPC arranged for recording statement of the victim under Section 164(5) of CrPC and medical examination of the victim as well as the accused appellant seized the wearing clothes vaginal swab and blood sample of the victim also seized the pubic hair dried blood sample and blood sample of the accused appellant and after observing all formalities having prima facie satisfied he submitted charge sheet against the accused appellant. Nothing materials brought out from his cross examination. PW 16 Dr. Anjali Jamatia is the Medical Officer who deposed that on 31.07.2018 she examined the victim when she found her hymen was ruptured which was old and there was lower abdominal pain with urinary problem. There was no mark of injury on her person. She further deposed that such complication may be caused due to rape or by pressing finger or by hard substance. She proved her report as Exbt.11 and the signature thereon as Exbt.11 1. In her cross examination the Doctor stated that on examination the vagina of the victim was found normal. Per anal Page 10 examination was also normal. Vaginal swab was also negative for sperm. One foreign hair was found but could not be identified without DNA test. As such she was not sure whether it was of male or female. In the final opinion after the SFSL report she opined that there was no sign of recent intercourse but hymen was ruptured and there was abdominal pain and urinary problem. The hymen had old rupture. It may be 15 days or one month old. She denied the suggestion that the abdominal pain might be due to other reasons. PW 17 Smt. Rupali Majumder a Scientific Officer of the State Forensic Science Laboratory deposed that she examined the exhibits in connection with this case i.e. the external vaginal swab internal vaginal swab a small short hair dry blood sample of victim long pant of victim light purple colour shirt of victim pubic hair of accused appellant pubic hair of accused appellant dry blood sample of accused appellant. The result of the examination was as follows: “Seminal stain spermatozoa blood stain of human origin could not be detected in Exbts. A B E and F. Hair of human origin could be detected in the Exbt.C but its site of body could not be detected. She identified her report marked as Exbt.12 and her signature as Exbt.12 1.” Having reproduced the evidences let in by the prosecution witnesses we have perused the medical examination report of the victim Page 11 as under: girl. We find in the said report PW 16 the Doctor passed her final opinion “As per clinical examination and SFSL report there is no sign of recent intercourse but hymen was ruptured and there was lower abdominal pain.” From this final opinion it transpires that the Doctor PW 16 nowhere has stated that the lower abdominal pain with urinary problem might have caused due to rape or by pressing finger or by hard substance. Resultantly the Doctor improved her versions in respect of her final opinion as aforestated. We have further noticed that vaginal canal and fornices are found to be normal in the report. Again noticeably PW 3 being the maternal uncle of the victim i.e. the informant of the case admitted in his cross examination that there was no jungle near the house of his sister and there were many other houses in the locality of his sister. It is also admitted position that there was dispute regarding boundary of the houses of the victim and the appellant. More so the mother of PW 2 demanded a pig for settlement. We find contradictory statements of the victim and her mother regarding the fact that the victim was taken to the nearby jungle where she was raped by the appellant. We have our due attemtion to the sketch map of the scene of crime prepared by the investigating officer. It transpires that Page 12 there is no indication of either jungle or forest area or any mango tree in and around the houses of the PW 2 and the appellant. Another circumstance that strike our mind that PW 1 and PW 2 are very categoric to their statements that after intercourse the victim sustained injuries in her private parts that caused bleeding. It becomes apparent that the victim was examined just after two days of the incident. If the versions of PW 1and PW 2in regard to the fact of injuries at her private parts then at least some kinds of mark of injuries in the nature of swelling red mark could be detected by the Doctor. But the medical report clearly reveals that there was no mark of injury not only in any of her private parts as well as nowhere of her person. In view of the statements of the prosecution witnesses particularly PW 1 and PW 2 coupled with the medical evidence we find various inconsistencies which appear to be so irreconcilable are sufficient to suspect the very genesis of prosecution case. According to us only on the basis of the fact that the victim at the time of her medical examination was suffering from lower abdominal pain with problem of urination will not be enough to hold that the victim was subjected to rape. The victim hails from a lower strata where cleanliness and hygiene are always a question and in that circumstance the cause of abdominal pain and urination may be for various other factors. Even the prosecution has failed Page 13 to establish the foundational facts relating to rape and the doctrine of reverse burden can be garnered from the prosecution witnesses. To rebut the presumption as contemplated under Section 29 of the POCSO Act the accused appellant under POCSO Act is not required to adduce evidence on his behalf but it can be garnered from the prosecution witnesses itself. To say more comprehensively the presumption to be drawn under Sections 29 and 30 of the POCSO Act do not absolve the prosecution of its duty to establish the foundational facts. Prosecution has to establish a prima facie case beyond reasonable doubt. Only when the fundamental facts are established by the prosecution the accused will be under obligation to rebut the presumption that arise by adducing evidence with standard of proof of pre ponderance of probability. The insistence on establishment of fundamental facts by prosecution acts as a safety guard against misapplication of statutory presumption. Foundational facts in POCSO Act include: the prove that the victim is a child that alleged incident has taken place that the accused has committed the offence and iv) whenever physical injury is caused to establish it with supporting medical evidence. If the fundamental facts of the prosecution case are laid by the prosecution by leading legally admissible evidence the duty of the accused Page 14 is to rebut it by establishing from the evidence on record that he has not committed the offence. This can be achieved by eliciting patent absurdities or inherent infirmities in the version of prosecution or in the oral testimony of witnesses or the existence of enmity between the accused and victim or bring out material contradictions and omissions in the evidence of witnesses or to establish that the victim and witnesses are unreliable or that there is considerable and unexplained delay in lodging the complaint or that the victim is not a child. Accused may reach that end by discrediting and demolishing prosecution witnesses by effective cross examination. Only if he is not fully able to do so he needs only to rebut the presumption by leading defence evidence. Still whether to offer himself as a witness is the choice of the accused. Fundamentally the process of adducing evidence in a POCSO case does not substantially differ from any other criminal trial except that in a trial under the POCSO Act the prosecution is additionally armed with the presumptions and the corresponding obligation on the accused to rebut the presumption. It is imperative to mention that in POCSO cases considering the gravity of sentence and the stringency of the provisions an onerous duty is cast on the trial court to ensure a more careful scrutiny of evidence especially when the evidence let in is the nature of oral testimony of the victim alone and not corroborated by any other evidence—oral documentary and medical. emphasis supplied) Legally the duty of the accused to rebut the presumption as arises only after the prosecution has established the foundational facts of the offence alleged against the accused. The yardstick for evaluating the rebuttable evidence is limited to the sale of preponderance of probability. Page 15 Once the burden to rebut the presumption is discharged by the accused through effective cross examination or by adducing defence evidence or by the accused himself tendering oral evidence what remains is the appreciation of the evidence let in. Though it may appear that in the light of presumptions the burden of proof oscillate between the prosecution and the accused depending on the quality of evidence let in in practice the process of adducing evidence in a POCSO case does not substantially differ from any other criminal case. Once the recording of prosecution evidence starts the cross examination of the witnesses will have to be undertaken by the accused keeping in mind the duty of the accused to demolish the prosecution case by an effective cross examination and additionally to elicit facts to rebut the statutory presumption that may arise from the evidence of prosecution witnesses. Practically the duty of prosecution to establish the foundational facts and the duty of accused to rebut presumption arise with the commencement of trial progresses forward along with the trial and establishment of one extinguishes the other. To that extent the presumptions and the duty to rebut presumptions are co extensive. emphasis supplied) If an accused is convicted only on the basis of presumption as contemplated in Sections 29 and 30 of the POCSO Act then it would definitely offend Articles 20(3) and 21 of the Constitution of India. In my Page 16 opinion it was not the object of the legislature. Presumption of innocence is a human right and cannot per se be equated with the fundamental right under Article 21 of the Constitution of India. The Supreme Court in various decisions has held that provisions imposing reverse burden must not only be required to be strictly complied with but also may be subject to proof of some basic facts as envisaged under the Statute. 3 SCR 10: AIR 1961 SC 1808:2 Cri LJ 856]. It may safely be said that presumptions under Sections 29 and 30 of the POCSO Act do not take away the primary duty of prosecution to establish the fundamental facts. This duty is always on the prosecution and never shifts to the accused. POCSO Act has no different connotations. Parliament is competent to place burden on certain aspects on the accused especially those which are within his exclusive knowledge. It is justified on the ground that prosecution cannot in the very nature of things be expected to know the affairs of the accused. This is specifically so in the case of sexual offences where there may not be any eye witness to the incident. Even the burden on accused is also a partial one and is justifiable on larger public interest. 3 SCR 10: AIR 1961 SC 1808:2 Cri LJ 856 Noor Aga Vrs. Page 17 State of Punjab & Anr.16 SCC 417 Abdul Rashid Ibrahim Vrs. State of Gujarat2 SCC 513] In the light of above discussion in our considered view with the inbuilt safeguards in the Act the limited presumption do not upset the basic features of criminal law. Tendering of the oral evidence by accused is not mandatory or essential.In the backdrop of the above discussion on law and facts in our considered view the appellant is entitled to benefit of doubt. Accordingly the convict appellant namely Sri Lalmalsom Kaipeng is acquitted of the charges levelled against him on the benefit of doubt and set at liberty. The release warrant shall be issued forthwith. The appeal accordingly stands allowed and disposed. Send down the L.C.Rs. ARINDAM LODH) J AKIL KURESHI) CJ.

The appellant deserves “Benefit of Doubt”: Patna High Court

Apart from the factum of compromise, rather even after ignoring compromise, the prosecution evidence does not inspire confidence regarding the connection between the offenses alleged and the involvement of the appellant. Hence, the appellant deserves the benefit of the doubt. This auspicious judgment was passed by the Hon’ble High Court of Patna in the matter of Vakil Paswan, Son of Shankar Paswan, Resident of Village – Karma, Police Station – Chenery, District – Rohtas at Sasaram Versus the State of Bihar [CRIMINAL APPEAL (SJ) No.3154 of 2019] by MR. JUSTICE BIRENDRA KUMAR. This appeal was against the judgment of conviction against a case registered under Sections 376/511 of the Indian Penal Code where the learned Trial Judge found the appellant guilty for offenses under Sections 376/511, 354, and 354(B) of the Indian Penal Code. The learned Trial Judge awarded rigorous imprisonment for seven years and a fine of rupees five thousand for an offense under Sections 376/511 of the Indian Penal Code and in default of payment of fine rigorous imprisonment of one year was ordered. Likewise, three years’ rigorous imprisonment and a fine of rupees one thousand were awarded for an offense under Section 354 of the Indian Penal Code, and in default of payment of fine, there is the direction of one-month rigorous imprisonment. For offense under Section 354(B) of the Indian Penal Code, rigorous imprisonment of five years was awarded besides fine of rupees two thousand, and in default of payment of fine, the appellant was directed to undergo further four months’ rigorous imprisonment. The sentences had been ordered to run concurrently by the impugned order. It was stated by the prosecutrix that while she was sleeping inside her house after closing the doors, the appellant jumped over the boundary wall and entered the room of the informant along with a gun. The appellant sat on the body of the informant and caught her breast, started to disrobe her but the victim made an alarm, and the neighbors Laxman Paswan (P.W. 1), Saroj Paswan (P.W. 2) came then only she could save herself. She stated that the husband and brother of the husband were outside the village to earn their livelihood. Hence, no male was there in the house. Learned counsel for the appellant contends that there was a lack of reliable evidence on the identity of the appellant to be involved in the occurrence. Hence, the judgment of conviction is not sustainable in law. According to learned counsel, other witnesses were hearsay witnesses not corroborated by the prosecutrix. Hence, their testimony had got no evidentiary value. Later, learned counsel for the State-respondent contents that, in fact, the parties entered into a compromise and due to compromise, the complainant changed her statement in the cross-examination. The learned Trial Judge had taken note of the Supreme Court judgment that in such a serious case, compromise should not be encouraged. Hence, the conviction of the appellant for the offenses proved does not require any interference. The court stated that “she deposed that due to darkness, she could not identify the accused but she never denied the incident. The prosecution case is further supported by the fact that the accused had tried to put pressure on the prosecutrix to compromise, only because he was guilty”. The second part of the finding above is an error of record. There is no evidence that the prosecutrix entered into a compromise under pressure, rather the evidence shows that she has voluntarily compromised the case and counter case both.”

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

Rule 41 (5) of Maharashtra Employees of Private Schools Conditions of Service) Regulation Act, 1977 would not apply to the transfer of a non-teaching staff: Bombay High Court

Rule 41 (5) would not apply to the transfer from a junior college to secondary school though run by the same Management in case of non-teaching staff. Such an observation was made by the Hon’ble Bombay High Court before Hon’ble Justice R.D. DHANUKA & Hon’ble Justice ABHAY AHUJA in the matter of Rahul Prakash Nilgar vs State of Maharashtra & ors [WRIT PETITION NO.2547 OF 2021] on 29.11.2021 The facts of the case were that the petitioner was transferred from the unaided post of Lab Attendant in junior college to aided post in secondary school on the post of Lab Attendant run by the same Management. Such transfer was denied by the Education Officer on the ground that there is no provision under the provisions of the Maharashtra Employees of Private Schools Conditions of Service) Rules, 1981 ‘the MEPS Rules’) for such transfer.  The Hon’ble High Court observed that “A perusal of Rule 41 5) clearly indicates that where a Management runs a secondary school and a junior college of education, teachers in a junior college of education cannot be transferred to a secondary school against their will and subject to various conditions. In our view, Rule 41 5) would not apply to the transfer from a junior college to secondary school though run by the same Management in case of a non-teaching staff” Additionally, the Hon’ble High Court held that the impugned order is in violation of Rule 41 1) and Rule 41 2) of the MEPS Rules and deserves to be quashed and set aside and observed that “On a conjoint reading of Rule 41 1) with Section 2 24), i.e., the definition of ‘school’, transfer of non-teaching staff from the unaided post in junior college to aided post in a higher secondary school run by the same Management is thus permissible, subject to the conditions prescribed under Rule 41 1) and Rule 41 2) of the MEPS Rules. It is not the case of the Education Officer in the impugned order that the other conditions prescribed under Rule 41 91) are not complied with by the Management” Finally, the Hon’ble High Court allowed the instant writ petition with a direction to the Education Officer d to grant approval to the said transfer within a period of four weeks. Click Here To Read The Judgment. Judgment Reviewed by: Rohan Kumar Thakur The facts of the case were that the petitioner was transferred from the unaided post of Lab Attendant in junior college to aided post in secondary school on the post of Lab Attendant run by the same Management. Such transfer was denied by the Education Officer on the ground that there is no provision under the provisions of the Maharashtra Employees of Private Schools Conditions of Service) Rules, 1981 ‘the MEPS Rules’) for such transfer.  The Hon’ble High Court observed that “A perusal of Rule 41 5) clearly indicates that where a Management runs a secondary school and a junior college of education, teachers in a junior college of education cannot be transferred to a secondary school against their will and subject to various conditions. In our view, Rule 41 5) would not apply to the transfer from a junior college to secondary school though run by the same Management in case of a non-teaching staff” Additionally, the Hon’ble High Court held that the impugned order is in violation of Rule 41 1) and Rule 41 2) of the MEPS Rules and deserves to be quashed and set aside and observed that “On a conjoint reading of Rule 41 1) with Section 2 24), i.e., the definition of ‘school’, transfer of non-teaching staff from the unaided post in junior college to aided post in a higher secondary school run by the same Management is thus permissible, subject to the conditions prescribed under Rule 41 1) and Rule 41 2) of the MEPS Rules. It is not the case of the Education Officer in the impugned order that the other conditions prescribed under Rule 41 91) are not complied with by the Management” Finally, the Hon’ble High Court allowed the instant writ petition with a direction to the Education Officer d to grant approval to the said transfer within a period of four weeks. Click Here To Read The Judgment. Judgment Reviewed by: Rohan Kumar Thakur The Hon’ble High Court observed that “A perusal of Rule 41 5) clearly indicates that where a Management runs a secondary school and a junior college of education, teachers in a junior college of education cannot be transferred to a secondary school against their will and subject to various conditions. In our view, Rule 41 5) would not apply to the transfer from a junior college to secondary school though run by the same Management in case of a non-teaching staff” Additionally, the Hon’ble High Court held that the impugned order is in violation of Rule 41 1) and Rule 41 2) of the MEPS Rules and deserves to be quashed and set aside and observed that “On a conjoint reading of Rule 41 1) with Section 2 24), i.e., the definition of ‘school’, transfer of non-teaching staff from the unaided post in junior college to aided post in a higher secondary school run by the same Management is thus permissible, subject to the conditions prescribed under Rule 41 1) and Rule 41 2) of the MEPS Rules. It is not the case of the Education Officer in the impugned order that the other conditions prescribed under Rule 41 91) are not complied with by the Management” Finally, the Hon’ble High Court allowed the instant writ petition with a direction to the Education Officer d to grant approval to the said transfer within a period of four weeks. Click Here To Read The Judgment. Judgment Reviewed by: Rohan Kumar Thakur Additionally, the Hon’ble High Court held that the impugned order is in violation of Rule 41 1) and Rule 41 2) of the MEPS Rules and deserves to be quashed and set aside and observed that “On a conjoint reading of Rule 41 1) with Section 2 24), i.e., the definition of ‘school’, transfer of non-teaching staff from the unaided post in junior college to aided post in a higher secondary school run by the same Management is thus permissible, subject to the conditions prescribed under Rule 41 1) and Rule 41 2) of the MEPS Rules. It is not the case of the Education Officer in the impugned order that the other conditions prescribed under Rule 41 91) are not complied with by the Management” Finally, the Hon’ble High Court allowed the instant writ petition with a direction to the Education Officer d to grant approval to the said transfer within a period of four weeks.

1 15 WP 2547 21.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2547 OF 2021 Rahul Prakash Nilgar Age : 35 years Occ. Service Address : Shri. S.S. Shelke Prashala Junior College Vagdari Tal Akkalkot Dist Solapur 1. State of Maharashtra … Petitioner 2. Education Offcer Secondary Zilla Parishad Solapur … Respondents Mr. Rahul S. Kadam for the Petitioner Mr.S.B. Kalel AGP for the State. CORAM : R.D. DHANUKA ABHAY AHUJA JJ DATE : 29TH NOVEMBER 2021 ORAL JUDGMENT : PER R.D. DHANUKA J.) Rule. Rule made returnable forthwith. Mr.S.B. Kalel learned AGP for the State waives service. By consent of the parties Petition is heard fnally 2 15 WP 2547 21.odt By this Petition fled under Article 226 of the Constitution of India the Petitioner has impugned the order dated 7th April 2021 passed by Respondent No.2 Education Offcer rejecting the proposal made by the Management thereby transferring the Petitioner from unaided post of Lab Attendant in junior college to aided post in secondary school on the post of Lab Attendant run by the same Management on the ground that there is no provision under the provisions of the Maharashtra Employees of Private Schools Conditions of Service) Rules 1981 ‘the MEPS Rules’) for such transfer. Mr. Kadam learned counsel for the Petitioner invited our attention to the impugned order passed by the Education Offcer and would submit that the said impugned order is contrary to Rule 41 5) a) and 41 5) b) of the MEPS Rules. Rule 41 reads thus : “41. Transfers. 1) Subject to the provisions of this rule the Management conducting more than one school shall not transfer any of its employees from one school to another except on administrative grounds promotion or at the request of the employee concerned if it is administratively convenient to do so. 2) Save in exceptional cases and unless reasons are recorded in writing by the Management such 3 15 WP 2547 21.odt transfers shall not be effected in the middle of the 3) The Management shall see that the transfers do not adversely affect the pay or pay scale of the employees concerned and that such transfers do not result into loss in the pensionary benefts as admissible to them. 4) The expenditure on Traveling allowance and Daily allowance if any at the rates applicable to the Government employees of the comparable status shall be borne by the Management. If the transfer is at the request of the employee this expenditure shall be borne by the employee concerned. Provided that the transfer involves change of headquarters the joining time to be allowed to an employee shall be limited to six days excluding Sunday) and actual days of journey. Subject to this limit the period of joining time shall be treated as "duty" for all purposes Provided that an employee shall not be entitled to joining time if transfer is effected during the 5) Where a Management runs a secondary school or secondary schools and a Junior College of Education a) Teachers in a Junior College of Education shall not be transferred to a secondary school against their will. Such transfers may however be made if they are at employees own requests subject to availability of vacancies in secondary schools. In the event of such a transfer the pay drawn by the teacher in the Junior College of Education shall not be protected. He shall be deemed to be working in a secondary school during the period he worked in the Junior College of Education and his pay shall be accordingly refxed on his joining the secondary 4 15 WP 2547 21.odt b) Teachers in secondary school shall not be transferred to a Junior College of Education against their will. Such transfers may however be made if they are at the employees own requests subject to the following conditions namely : i) Vacancies should be available in the Junior College of Education ii) The concerned employee shall retain the same place in the common seniority list and iii) Their pay in the Junior College of Education shall be fxed at the same stage of pay as their existing pay or at the minimum of the scale of pay in the Junior College of Education whichever is In support of this submission learned counsel for the Petitioner placed reliance on the judgments of this Court in cases of Vidya Vikas Samiti Paratwada And Another Vs. Presiding Offcer School Tribunal Amravati Division Amravati and Others Vs. State of Maharashtra Through the Secretary & Ors. 2010 SCC OnLine Bom 1397 and Rajaram S. Mandale and Another Vs. State of Maharashtra Through Secretary School Education Dept. and Another 2020 SCC OnLine Bom 7507 5 15 WP 2547 21.odt In his alternate submission it is submitted by the learned counsel for the Petitioner that the transfer is permissible from unaided junior college post to aided secondary school post under Rule 41 1) of the said MEPS Rules. He submits that the said provision under Rule 41 1) is very wide. He relied upon the defnition of ‘School’ under Section 2 24) of the Maharashtra Employees of Private Schools Conditions of Service) Regulation Act 1977 ‘the MEPS Regulations’) and would submit that the defnition of school includes the junior college. The said defnition reads thus “2 24) “School” means a primary school secondary school higher secondary school junior college of education or any other institution by whatever name called including technical vocational or art institution or part of any such school college or institution which imparts general technical vocational art or as the case may be special education or training in any faculty or discipline or subject below the The learned AGP on the other hand strongly placed reliance on the defnition of ‘Junior College of Education’ under Section 2 10) of the MEPS Act which reads thus: 6 15 WP 2547 21.odt “2 10) “Junior College of Education” means a school imparting teacher education to persons for being appointed as teachersin pre school centres or primary schools” The learned AGP also placed reliance on Rule 41A of the MEPS Rules and would submit that in view of the said provision which came to be added with effect from 8th June 2020 the transfer from unaided junior college to aided secondary school is not permissible. Rule 41A of the MEPS Rules reads thus : “41A. Conditions for transfer of teacher from un aided to partially aided or aided school or division. 1) The management may transfer a teacher from un aided school or partially aided school to the vacant post in partially aided school or aided school or division only if the following conditions are satisfed namely : a) i) the Management and Education Offcer or Deputy Director shall before making such transfer verify that there is no surplus persons are available as provided in sub section 1) of section 5 of the Act ii) if the surplus persons are available the Management shall not make such transfer b) the transfer shall not be made from the teachers of self fnanced school of the Management c) before making such transfer the teacher should have completed minimum fve years continuous service in un aided school or division or partially aided school or division of the Management d) the transfer shall be made in equal or same 7 15 WP 2547 21.odt cadre. The transfer shall not be made from primary to higher primary higher primary to secondary or secondary to higher secondary or higher secondary to D. El. Ed. schools or vice versa e) the transfer shall be made only by following the seniority and as per the requirement of the subject f) before making transfer of a teacher his appointment should have been approved by the Education Offcer or Deputy Director as the case may be g) the transfer shall be made on the vacant post h) the transfer shall be subject to the approval of Education Offcer or Deputy Director as the case 2) If the post becomes vacant due to transfer such vacant post shall be flled as per the procedure provided in Rule 9 3) The transferred teacher shall be eligible for scale of pay and allowances as decided by the Government from time to time.” A perusal of the record indicates that it is an admitted position that the Petitioner was appointed as a Lab Attendant in a junior college run by the same Management running the secondary school to which the Petitioner was transferred. The Petitioner was a non teaching staff A perusal of Rule 41 5) clearly indicates that where a Management runs a secondary school and a junior college of 8 15 WP 2547 21.odt education teachers in a junior college of education cannot be transferred to a secondary school against their will and subject to various conditions. In our view Rule 41 5) would not apply to the transfer from junior college to secondary school though run by the same Management in case of a non teaching staff Insofar as the judgments of this Court relied upon by the learned counsel for the Petitioner in case of Vidya Vikas Samiti Paratwada And Another supra) Sudha Anant Gandhi supra) Sau Kalpana w o Jayant Kolarkar maiden name Ku. Kalpana d o Gopalrao Jatkar) supra) and Rajaram S. Mandale and Another supra) are concerned in all these judgments this Court had considered the transfer of a teacher from one school to another school. In our view none of these judgments would thus assist the case of the Petitioner seeking transfer under Rule 41 5) not applicable to non teaching staff The next question that arises for consideration of this Court is whether a transfer from an unaided post in a junior college to aided post in secondary school of a non teaching staff is permissible under Rule 41 1) of the MEPS Rules or not A perusal 9 15 WP 2547 21.odt of Rule 41 1) clearly indicates that the said provision applies not only to the school but also to the junior college and the transfer from one school to another and also to non teaching staff except on administrative grounds. Rule 41 1) has to be read with the defnition of ‘school’ provided under Section 2 24) of the MEPS Act which includes junior college of education. The expression junior college of education is further defned under Section 2 10) of the MEPS Act which means a school imparting teacher education to persons for being appointed as teachers and Assistant Teacher Probationary) in pre school centres or primary schools. However the defnition of school under Section 2 24) is very wide and includes junior college of education. Section 2 24) has to be read with Rule 41 1) of the MEPS Rules On conjoint reading of Rule 41 1) with Section 2 24) i.e. defnition of ‘school’ transfer of non teaching staff from unaided post in junior college to aided post in higher secondary school run by the same Management is thus permissible subject to the conditions prescribed under Rule 41 1) and Rule 41 2) of the MEPS Rules. It is not the case of the Education Offcer in the impugned order that the other conditions prescribed under Rule 41 1) are not 10 15 WP 2547 21.odt complied with by the Management. In our view the impugned order is thus in violation of Rule 41 1) and Rule 41 2) of the MEPS Rules and deserves to be quashed and set aside Writ Petition is made absolute in terms of prayer The Education Offcer is directed to grant approval to the said transfer within a period of four weeks from today and shall release grant in aid in favour of the Management in respect of such transfer from the date of transfer within a period of four weeks Rule is made absolute in the above terms. No order as to Parties to act upon the authenticated copy of this order ABHAY AHUJA J R.D. DHANUKA J 1

A writ petition filed under Article 226 praying for issuance of Writ of Mandamus dismissed on considering no merit – Madras high court

A writ petition filed under Article 226 praying for issuance of Writ of Mandamus dismissed on considering no merit – Madras high court The writ petition is filed under article 226 of the constituion of India for the issuance of a writ of mandamus against respondents and requesting the respondents to permit the petitioners to permit the records under Section 4(1)(a), 4(1)(b), 4(1)(c) and 4(1)(d) of the Right to Information Act, 2005. The writ petition was heard and dismissed accordingly by a single judge bench of THE HON’BLE MR. JUSTICE M. GOVINDA RAJ in the case of Mahadev Viswanathan versus Joint Secretary Department of Economic Affairs (DEA) and 5 others (WP NO.19337 OF 2017) It is important to understand Section 4 of the Right to Information Act, 2005 before the issuance of the writ section 4 of the act states the obligations of public authorities. The provisions specify the obligations of public authorities in maintaining the records and disseminating the information about its functioning. The sub-clause (a) of Section 4(1) of the Act states that every public authority shall maintain all its records in the manner which facilitates providing of the information and the other sub-clauses also provides makes it obligatory for the authorities to store and share information when necessary. The objective of the act is that every citizen shall have the right to information as well as easy access to the information from the organization and there shall not be any lame excuse on the part of the officials that the files are missing or that it is difficult to get that information. But in the present writ petition, the petitioner demands to seek information as a matter of right to gather the information. The court finds that the object of the act is to promote transparency and accountability in the working of every public authority and the transparency does not mean that all the information shall be thrown open to the public without there being any confidentiality or privilege and the obligations of public authorities shall not be read in conflict of the public interest. Section 4 of the Act does not permit anyone to have a search into the records in the guise of inspection of offices of any public authority. The court further interprets the real intention behind the application of the act and decides that Writ under Article 226 of the Constitution of India can be exercised for the violation of fundamental rights and the statutory rights and enforcement of such lawful rights in a lawful manner, it cannot be exercised for the regulation improper acts of citizens taking shelter under the statutory rights and decides that the information sought by the petitioner in the present case is accessible to the petitioners if proper procedures are followed and if the application is filed under proper provisions of the Act. The petitioner cannot be granted access to conduct the search of all records and ransack the public authorities. Hence the petitioner approaches the respondents in the manner known to the law, the respondents are directed to provide information, in accordance with law and the writ petition is accordingly dismissed.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 30 04 2021CORAM:THE HON BLE MR.JUSTICE M.GOVINDARAJWP NO.19337 OF 2017Mahadev Viswanathan ... Petitioner Vs.1.Joint Secretary Department of Economic AffairsMinistry of FinanceRoom No.39 B New Delhi 110 001.Room No.312 A Wing Shastri Bhawan New Delhi 110 001.3.Joint Secretary Department of Legal AffairsMinistry of Law and Justice4th Floor A Wing Shastri Bhawan New Delhi 110 001.1 18 https: www.mhc.tn.gov.in judis 4.Joint Secretary Ministry of Corporate AffairsGarage No.14 “A” Wing Shastri Bhawan Rajendra Prasad Road New Delhi 110 001.5.Director Forward Markets Commission(Currently under the control and supervision of SEBI) Everest 3rd Floor 100 Marine Drive Mumbai 400 002.6.Joint Secretary CDMRD Securities Exchange Board of IndiaPlot No.C4 A “G” Block Bandra Kurla Complex BandraMumbai 400 051. ... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Mandamus directing the respondents herein to allow the petitioner to inspect the records as mentioned in the representation dated 16.08.2016. For Petitioner:Mr.Nithyaesh Natraj For Respondents Mr.Venkatasamy Babu1 to 4:CGSCFor Respondent 6:Mr.Shivakumar 2 18 https: www.mhc.tn.gov.in judis O R D E RThe present Writ Petition has been filed for a direction directing the respondents to allow the petitioner to inspect the records as mentioned in his representation dated 16.08.2016.2.The petitioner made a representation on 16.08.2016 requesting the respondents to permit him to inspect the records under Section 4(1)(a) 4(1)(b) 4(1)(c) and 4(1)(d) of the Right to Information Act 2005. It is necessary to understand the import of Section 4 of the Right to Information Act 2005Every public authority shall— a) maintain all its records duly catalogued and indexed in a manner and the form which facilitates the right to information under this Act and ensure that all records that are appropriate to be computerised are within a reasonable time and subject to availability of resources computerised and connected through a network all over the country on different systems so that access to such records is 3 18 https: www.mhc.tn.gov.in judis facilitated b) publish within one hundred and twenty days from the enactment of this Act —(i) the par ticulars of its organization functions and duties the powers and duties of its officers and employees the procedure followed in the decision making process including channels of supervision and accountability the norms set by it for the discharge of its functions the rules regulations instructions manuals and records held by it or under its control or used by its employees for discharging its functions a statement of the categories of documents that are held by it or under its control the particulars of any arrangement that exists for consultation with or representation by the members of the public in relation to the formulation of its policy or 4 18 https: www.mhc.tn.gov.in judis implementation thereof a statement of the boards councils committees and other bodies consisting of two or more persons constituted as its part or for the purpose of its advice and as to whether meetings of those boards councils committees and other bodies are open to the public or the minutes of such meetings are accessible for public a directory of its officers and employees the monthly remuneration received by each of its officers and employees including the system of compensation as provided in its regulations the budget allocated to each of its agency indicating the particulars of all plans proposed expenditures and reports on disbursements made the manner of execution of subsidy programmes including the amounts allocated and the details of beneficiaries of such programmes particulars of recipients of concessions permits or authorisations granted by it details in respect of the information available 5 18 https: www.mhc.tn.gov.in judis to or held by it reduced in an electronic form the particulars of facilities available to citizens for obtaining information including the working hours of a library or reading room if maintained for public use the names designations and other particulars of the Public Information Officers such other information as may be prescribed and thereafter update these publications every year c) publish all relevant facts while formulating important policies or announcing the decisions which affect public d) provide reasons for its administrative or quasi judicial decisions to affected persons.It shall be a constant endeavour of every public authority to take steps in accordance with the requirements of clauseof sub sectionto provide as much information suo motu to the public at regular intervals through various means of communications including internet so that the public have minimum resort to the use of this Act to obtain information. 6 18 https: www.mhc.tn.gov.in judis 3) For the purposes of sub sectionevery information shall be disseminated widely and in such form and manner which is easily accessible to the public.All materials shall be disseminated taking into consideration the cost effectiveness local language and the most effective method of communication in that local area and the information should be easily accessible to the extent possible in electronic format with the Central Public Information Officer or State Public Information Officer as the case may be available free or at such cost of the medium or the print cost price as may be prescribed. "3.The above provision specifies the obligations of public authorities in maintaining the records and disseminating the information about its functioning. As per sub clauseof Section 4(1) of the Act every public authority shall maintain all its records in the manner which facilitates providing of the information. Whatever information which can facilitate the right to information shall be catalogued and grant access to such records. Sub clauseof Section 4(1) of the Act mandates that the public authority 7 18 https: www.mhc.tn.gov.in judis shall publish the particulars of the organization functions and its duties powers and duties of its officers and employees and the procedure followed the rules and regulations instructions manual and records held by its or under its control are used for its functioning. The public authority shall provide the particulars of arrangements which exists for consultation with the public and enable them to make representation in relation to formulation of its policy or implementation thereof. Likewise it shall provide information about its meetings directory of its officers and employees monthly remuneration received by the officers and employees budgetary provisions execution of subsidy programmes and particulars about their beneficiaries of the same and facilities provided to the citizens for obtaining information details of Public Information Officer and all other information shall be provided to the public and shall be published and updated in the web portals and other methods. Sub Sectionof Section 4 of the Act provides for as much information on its own to the public at regular intervals through various means of communication. Sub Sectionof Section 4 of the Act provides for wide dissemination of every information which is easily accessible to the public. As 8 18 https: www.mhc.tn.gov.in judis per Sub Sectionof Section 4 of the Act dissemination of information shall be cost effective in local language and easily accessible to the Central Public Information Officer as well as State Public Information Officer either free or at cost. Explanation to Sub Sectionof Section 4 of the Act defines the word “disseminated” means making known or communicated the information to the public through notice boards newspapers public announcements media broadcasts the internet or any other means including inspection of offices of any public authority. 4.As such Section 4 of the Act makes it obligatory on the part of the public authorities to keep all the information about the organization and its functions and duties and also the information disseminated by the said organization about its functioning. In that view of the matter it shall be understood that Section 4 of the Act facilitates right to information and easy access of information. It does not mean that whatever transpired within the organization and the business secrets or confidential matter or privileged communication or materials exempted under the Act shall be thrown open to 9 18 https: www.mhc.tn.gov.in judis the public. The object of the Act is that every citizen shall have the right to information as well as easy access to the information from the organization and there shall not be any lame excuse on the part of the officials that the files are missing or that it is difficult to get that information. That is why all the informations are directed to be duly catalogued digitalized computerized and easily accessible even through electronic modes. 5.But the Writ Petitioner demands as a matter of right to enter the public office and gather information which he seeks for. By no stretch of imagination the explanation given to Sub Sectionof Section 4 of the Act that dissemination includes inspection of offices of any public authority does not empower a citizen to conduct search of the records of the Public Office or to conduct an inspection or raid the office of the Public Authority to secure any information which they want. The object of the Act is only to promote transparency and accountability in the working of every public authority. The transparency does not mean that all the information shall be thrown open to the public without there being any confidentiality or privilege. The object of 10 18 https: www.mhc.tn.gov.in judis the Act also preserves the paramountcy of the democratic ideal by exempting dissemination of information which has conflict with other public interests including efficient operations of the Governments optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information. Therefore the obligations of public authorities shall not be read in conflict of the public interest. Section 4 of the Act as such does not permit anyone to have a search into the records in the guise of inspection of offices of any public authority. With that view to regulate such demand for information under the guise of transparency and containing corruption the Act has been enacted. Therefore any person who is desirous of getting some information shall make the request in writing or through electronic means to the Public Information Officer designated for this purpose. If it is presumed that Section 4 of the Act provides for unfettered power to inspect any office to search any document of the public authority and gather information the other provisions of the Act will become redundant. 11 18 https: www.mhc.tn.gov.in judis 6.For example if a person claims that he has a right to have any document of any public authority he can go and search all the informations including sensitive information intellectual information and information with regard to the commercial secrets of that organization only because it is a public authority. If he does not find any information which is useful or beneficial to him he can leave office after ransacking all the records. If a handful of such people take a ride to any public office it will result only in chaotic condition and the efficiency of organization will go to docks. Therefore the enactment as such is only to regulate the unscrupulous elements from misusing or abusing the power and to maintain transparency and accountability or to eliminate corruption. Therefore the request made by the petitioner to inspect all the records on his own with the assistance of his own people will create chaos and that was not the intent of the Act. It is absurd to give such an interpretation to the provision when a legislation provides for certain rights to secure information in a particular manner that right shall be exercised or benefit shall be obtained in such manner prescribed under the statute. Only because he is a citizen he cannot take law into hands 12 18 https: www.mhc.tn.gov.in judis and dictate terms. 7.The Section 2(f) of Act defines “information” as under: “2(f) "information” means any material in any form including records documents memos e mails opinions advices press releases circulars orders logbooks contracts reports papers samples models data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force "Which means the information which is held by the public authority and information of a private body to which the public authority has legal access. It is not all the information which are not legally accessible to the public authority can be obtained. Secondly the word "held" connotes that the public authority has a right to hold some information which includes right to withhold certain information which is exempted under the purview of the Act. 13 18 https: www.mhc.tn.gov.in judis This definition is exhaustive. It does not mean that all the information can be obtained by pick and choose method by making search of the entire records of the office. That is why there are certain checks and measures are provided under the Act. 8.The definition to “right to information” under Section 2(j) of the Act means the right to information accessible under this Act which is held by or under the control of the public authority includes right to inspection of works documents or records. The legislature have coined the word “right to information” accessible under this Act which means the Act specifies for information to which access can be provided which impliedly mean that there are certain information to which access cannot be provided. Further the works held by or under the control of public authority means all the informations are not open and there shall be some checks and measures to provide the information which is permissible under the Act. The right to information by inspection of work or document or records will be restricted only with respect to information which can be provided under the Act and not 14 18 https: www.mhc.tn.gov.in judis all the information. Therefore the petitioner cannot seek for inspection of any organization and take its records without making a proper request under the appropriate provision of the statute. It is not the object as contended by the learned counsel for the petitioner that Section 4(4) of the Act provides for inspection of whatever records available in the office at his whims and fancies. It is highly illogical impractical unworkable to permit any Tom Dick and Harry to raid public offices in the guise of inspecting the records. If thousands of people are allowed to enter in public office without any restriction the very object of the Act to provide efficient and transparent administration would become meaningless. Therefore the request of the petitioner cannot be granted. 9.The Writ under Article 226 of the Constitution of India can be exercised for the violation of fundamental rights and the statutory rights and to enforcement of such lawful rights in the lawful manner it cannot be exercised for circumventing improper acts of citizens taking shelter under the statutory rights. 10.In so far as the information sought for by the petitioner it is 15 18 https: www.mhc.tn.gov.in judis open to him to file a proper application under the appropriate provisions of the Act and he cannot be granted access to conduct omni bus search of all the records and ransack the offices of the public authorities. In the event the petitioner approaches the respondents in the manner known to law the respondents are directed to provide information in accordance with law. 11.The Writ Petition as such merits no consideration and accordingly stands dismissed. No costs. 30 04 2021Index: Yes NoInternet: Yes No TK16 18 https: www.mhc.tn.gov.in judis To1.Joint Secretary Department of Economic AffairsMinistry of FinanceRoom No.39 B New Delhi 110 001.Room No.312 A Wing Shastri Bhawan New Delhi 110 001.3.Joint Secretary Department of Legal AffairsMinistry of Law and Justice4th Floor A Wing Shastri Bhawan New Delhi 110 001.4.Joint Secretary Ministry of Corporate AffairsGarage No.14 “A” Wing Shastri Bhawan Rajendra Prasad Road New Delhi 110 001.5.Director Forward Markets Commission(Currently under the control and supervision of SEBI) Everest 3rd Floor 100 Marine Drive Mumbai 400 002.6.Joint Secretary CDMRD Securities Exchange Board of IndiaPlot No.C4 A “G” Block Bandra Kurla Complex BandraMumbai 400 051. 17 18 https: www.mhc.tn.gov.in judis M. GOVINDARAJ J.TK WP NO.19337 OF 201730 04 202118 18

“Exit load charged by Asset Management Companies (AMCs) in various mutual fund schemes, is not maintained by SEBI…”: SEBI, Part 1.

Exchange Board of India comprising of Mr. Anand Baiwar adjudicated in the matter of Vinod Kumar Agarwal v CPIO, SEBI, Mumbai (Appeal No. 4369 of 2021) dealt with an issue in connection with Section 2 (f) of the Right to Information Act, 2005. The appellant, Mr Vinod Kumar Agarwal had filed an application via RTI MIS Portal on the 1st of July, 2021 under the Right to Information Act, 2005. The respondent responded to the application by a letter on the 19th of July, 2021, filed by the appellate. After receiving a letter from the respondent on 19th of July, 2021, on his application, the appellate decided to file an appeal on the 21st of July, 2021. The appellant, vide his application dated 1st of July, 2021, inter alia, sought the information regarding how much MFs (AMC wise) gained over last 20 Years due to the exit load levied in accordance with SEBI order (MFD/CIR/08/514 of 2002) and how they have utilized it. The respondent, in response to the query, informed that the information sought by the appellant with regard to exit load charged by Asset Management Companies (AMCs) in various mutual fund schemes, is not maintained by SEBI in normal course of regulation of securities market. Hence the same is not available with SEBI. The appellant had filed the appeal on the ground that the information provided was incomplete, misleading or false. The appellant, in his appeal, alleged incorrect levy of exit load. Further, the appellant has also submitted that SEBI should compile the details and forward the same to the appellant. After having perused through the application and the response provided thereto. On consideration, it was found that any reason to disbelieve the observation that the requested information is not available with SEBI as the same is not maintained by SEBI in normal course of regulation of securities market.

Appeal No. 43621 BEFORE THE APPELLATE AUTHORITY Under the Right to Information Act 2005) SECURITIES AND EXCHANGE BOARD OF INDIA Appeal No. 43621 Vinod Kumar Agarwal CPIO SEBI Mumbai The appellant had filed an application dated July 01 2021under the Right to Information Act 2005gained over last 20 Years due to the exit load levied in accordance with SEBI orderand how they have utilized it. The respondent in response to the query informed that the information sought by the appellant with regard to exit load charged by Asset Management Companiesin various mutual fund schemes is not maintained by SEBI in normal course of regulation of securities market. Hence the same is not available with SEBI. appellant. 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 alleged incorrect levy of exit load. Further the appellant has also submitted that SEBI should compile the details and forward the same to the I have perused the application and the response provided thereto. On consideration I do not find any reason to disbelieve the observation that the requested information is not available with SEBI as the same is not maintained by SEBI in normal course of regulation of securities market. In this context I Appeal No. 43621 note that the Hon’ble CIC did not find any need to intervene in the matter of Mrigesh Manubhai Thakkar vs. Securities and Exchange Board of Indiawhile observing that “10. the respondents can provide only that information which is existing and available with them and the RTI Act does not mandate it for the respondent authority to create information if it is not collected and collated in the normal course of their duties. The Commission therefore does not find any need to intervene in the matter. The appeal is disposed of.” Further I note that the Hon’ble CIC in the matter of Sh. Pattipati Rama Murthy vs. CPIO SEBIheld: “… if itdoes not have any such information in its possession the CPIO cannot obviously invent one for the benefit of the Appellant. There is simply no information to be given.” In view of these observations I find that the information sought by the appellant was not available with SEBI and therefore the respondent cannot be obliged to provide such nonavailable information. Further the appellant in his appeal has submitted that SEBI should compile the details and forward the same to the appellant. I find that the respondent is only expected to see that the information to be furnished to an applicant is the one which exists with the public authority when it receives an application under the RTI Act. The respondent has categorically stated in its response that the information sought was not available with SEBI. The respondent is not expected to obtain any information for the sole purpose of providing the same to an applicant under the RTI Act. 7. On perusal of the appeal it appears that the appellant has grievance regarding levy of exit load in MFs redeemed prior to completion of one year. 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: August 09 2021 ANAND BAIWAR APPELLATE AUTHORITY UNDER THE RTI ACT SECURITIES AND EXCHANGE BOARD OF INDIA

Consent to be given primacy when two individuals enter into wedlock: Supreme Court of India

An FIR filed by the parents of the petitioners were quashed by the Supreme Court of India citing that that the consent of the family or the community or the clan is not necessary once the two adult individuals agree to enter into a wedlock and that their consent has to be piously given primacy. This was held in the case of Laxmibhai Chandaraghi & Anr. v. State of Karnataka & ors, [Writ Petition [Criminal] No.359/2020] by Hon’ble Justice Sanjay Kishan Kaul in the Supreme Court of India. The petitioner in this case got married without informing her parents. She sent her marriage certificate to her parents through whatsapp in which she revealed the factum of marriage. Both the petitioner and her husband were well educated.  A petition was filed under Article 32 of the Constitution of India since according to the petitioner who lived in Karnataka, there is an issue of duality of jurisdiction arising from her residing with her husband who is from Uttar Pradesh. They were receiving threats from the petitioner’s family. The Police authorities weren’t of much help regarding the threats as the parties were asked to appear physically before the Police station to register their complaint even after expressing their apprehension of fear. The Court observed that the choice of an individual is an inextricable part of dignity, for dignity cannot be thought of where there is erosion of choice. Such a right or choice is not is not expected to succumb to the concept of “class honour” or “group thinking”. Reliance was placed on Shafin Jahan v. Asokan K M & Ors, (2018) 16 SCC 408 where the Court noticed that the society was emerging through a crucial transformational period.4 Intimacies of marriage lie within a core zone of privacy, which is inviolable and even matters of faith would have the least effect on them. The right to marry a person of choice was held to be integral Article 21 of the Constitution of India. Under the garb of caste and community to alienate the child and the son-in-law will hardly be a desirable social exercise. The judgment of K.S. Puttaswamy v. Union of India, 5 (2017) 10 SCC 1 was referred where it was held that the autonomy of an individual inter alia in relation to family and marriage were held to be integral to the dignity of the individual.

IN THE ORIGINAL JURISDICTION WRIT PETITIONNO.359 2020 LAXMIBAI CHANDARAGI B & ANR. Petitioner(s THE STATE OF KARNATAKA & ORS. Respondent(s JUDGMENT SANJAY KISHAN KAUL J We have heard learned counsel for parties One Mr. Basappa Chandaragi lodged a complaint with the Murgod Police Station Savadatti Taluk Belagavi District stating that his daughter Ms. Laxmibai Chandaragi petitioner No.1 herein was missing since 14.10.2020. In pursuance to the complaint FIR No.226 2020 of a missing person was registered and the investigation officer recorded the statement of the missing person’s parents and her relatives and took call details. From the call details it became apparent that the petitioner No.1 was in contact with Mr. Santosh Singh Yadav petitioner No.2. In the course of investigation it was found that the petitioner No.1 apparently without informing her parents had travelled by flight from Hubli to Bangalore and further from Bangalore to Delhi and thereafter married petitioner No.2. The petitioner No.1 sent her marriage certificate to her parents through whatsapp on 15.10.2020 in which she revealed the factum of marriage to petitioner No.2. It is the case of the State that the IO proceeded to Ghaziabad to know the whereabouts of petitioner No.1 and on visiting the residence of petitioner No.2 was informed by his parents that they do not know the whereabouts of the petitioners. However the petitioner No.1 spoke to the investigating officer and informed that she had already married petitioner No.2 and was residing with him. But the IO instead insisted that the petitioner No.1 should appear before the Murgod police station to record a statement so that the case can be closed. The petitioner No.1 sent a letter to the IO stating that she was married to petitioner No.2 and there was threat from her parents and thus was unable to visit the police station. The case was still not closed of missing person by the IO. It is in the aforesaid circumstances that the present petition has been filed under Article 32 of the Constitution of India since according to the petitioner there is an issue of duality of jurisdiction arising from her residing with petitioner No.2 in the State of Uttar Pradesh while the petitioner No.1 came from Karnataka. It is the case of the petitioners that the uncle of petitioner No.1 was threatening them. On the petitioners approaching the Allahabad High Court on 19.10.2020 seeking protection for themselves and the family members the matter could not be taken upon even after about a period of one month for urgent hearing. The petitioners have annexed a transcript of the conversation between petitioner No.1 and the police whereby the IO is asking her to come back to Karnataka as otherwise they will come to her and register a case of kidnapping against petitioner No.2 at the behest of her family members We have gone through the translation of the transcript at page D to page H originally in Kannada now translated in English in which the petitioner No.1 expressed the feeling of lack of safety. Though the IO stated that they would like to close the case they wanted her to get her statement recorded at the police station. The IO also stated that the family members may file a case against her that she has stolen things from the home and if an FIR is filed there would be a negative mark against petitioner No.2 and they would have to arrest him which would be problematic for his job also. The aforesaid does not tally with what is stated in the counter affidavit to the extent that the investigation officer had at no point threatened the petitioners The aforesaid does not reflect very well on the police authorities or the IO the marriage certificate having been received by him and the conversation already been held with petitioner No.1 where she clearly stated that she was married to petitioner No.2 and that she was feeling threatened and apprehensive of coming to the police station. If the IO could have visited the residence of petitioner No.2 he could very well have recorded the statement of petitioner No.1 at the place where the petitioners were residing rather than insisting and calling upon the petitioners to come to the local police station at Karnataka. Not only that he undoubtedly sought to compel the petitioner No.1 to come and record the statement at police station on the threat of possibility of a false case being registered by her parents against the petitioner No.2 and the consequent action of the police which would result in the arrest of petitioner No.2. We strongly deprecate the conduct of the IO in adopting these tactics and the officer must be sent for counseling as to how to manage such cases Both the parties are well educated. The petitioner No.2 is an M.Tech from NIT Tiruchirapalli while petitioner No.1 wife is an M.A.B.Ed. The petitioner No.2 had got a placement as an Assistant Professor in Jain College of Engineering Belagavi Karnataka while the petitioner No.1 was a Lecturer in KLES Karnataka Lingayat Education Society) Pre University College Bailhongal and it appears that they developed liking for each other during these assignments. However there was resistance from the parents of petitioner No.1 though the parents of petitioner No.2 were willing for the matrimony of both the well qualified petitioners who are majors and Hindu by religion Educated younger boys and girls are choosing their life partners which in turn is a departure from the earlier norms of society where caste and community play a major role. Possibly this is the way forward where caste and community tensions will reduce by such inter marriage but in the meantime these youngsters face threats from the elders and the Courts have been coming to the aid of these youngsters 10. We are fortified in our view by earlier judicial pronouncements of this Court clearly elucidating that the consent of the family or the community or the clan is not necessary once the two adult individuals agree to enter into a wedlock and that their consent has to be piously given primacy.1 It is in that context it was further observed that the choice of an individual is an inextricable part of dignity for dignity cannot be thought of where there is erosion of choice. Such a right or choice is not is not expected to succumb to the concept of “class honour” or “group thinking.”2 11. In Shafin Jahan v. Asokan K M & Ors.3 this Court noticed that the society was emerging through a crucial transformational period.4 Intimacies of marriage lie within a core zone of privacy which is inviolable and even matters of faith would have the least effect on them. The right to marry a person of choice was held to be integral Article 21 of the Constitution of India In this behalf the judgment of the nine Judges Bench in Justice 1 Shakti Vahini v. Union of India7 SCC 192 2 Asha Ranjan v. State of Bihar4 SCC 397 316 SCC 408 4 Lata Singh v. State of U.P.5 SCC 475 K.S. Puttaswamy v. Union of India5 may also be referred to where the autonomy of an individual inter alia in relation to family and marriage were held to be integral to the dignity of the 12. The intervention of this Court would really not have been required in the given facts of the case if the IO had conducted himself more responsibly in closing the complaint and if he really wanted to record the statement of the petitioner No.1 should have informed that he would visit her and recorded the statement instead of putting her under threat of action against petitioner No.2 to come to the police station. 13. The way forward to the police authorities is to not only counsel the current IOs but device a training programme to deal with such cases for the benefit of the police personnel. We expect the police authorities to take action in this behalf in the next eight weeks to lay down some guidelines and training programmes how to handle such socially sensitive cases 14. Insofar as the present case is concerned the petitioners having filed the present petition no further statement is really required to be recorded and thus the proceedings in pursuance to the FIR No.226 2020 dated 15.10.2020 registered at Murgod Police Station Belagavi District Karnataka are quashed with the hope that the parents of petitioner No.1 will have a better sense to accept the marriage and re establish social interaction not only 510 SCC 1 with petitioner No.1 but even with petitioner No.2. That in our view is the only way forward. Under the garb of caste and community to alienate the child and the son in law will hardly be a desirable social exercise. In the words of Dr. B.R. Ambedkar “Annihilation of Caste: “I am convinced that the real remedy is inter marriage Fusion of blood can alone create the feeling of being kith and kin and unless this feeling of kinship of being kindred becomes paramount the separatist feeling—the feeling of being aliens—created by Caste will not vanish Where society is already well knit by other ties marriage is an ordinary incident of life. But where society is cut asunder marriage as a binding force becomes a matter of urgent necessity. The real remedy for breaking caste is inter marriage. Nothing else will serve as the solvent of 15. The writ is disposed of in the aforesaid terms with some hope for the future SANJAY KISHAN KAUL [HRISHIKESH ROY New Delhi February 08 2021

For an offence of sodomy under POCSO Act, the victim should be below 18 years and accused should be guilty u/s 377 of the IPC: High Court of Delhi

In order to bring home the guilt of accused within the ambit of Section 6 of the POCSO Act, it was incumbent for the prosecution to prove that the victim was a minor, i.e. below the age of 18 years at the time of commission of crime. For convicting the Appellant/Accused for an offence punishable under Section 377 of the IPC, the prosecution has to prove that the Appellant/Accused had committed sodomy upon the victim and the same was upheld by High Court of Delhi through the learned bench led by JUSTICE CHANDRA DHARI SINGH in the case of LAXMAN @ LUCKY vs. STATE [CRL.A. 321/2016] on 04.03.2022. The facts of the case are that an FIR was registered on the written complaint lodged by the complainant/father of the victim. As per the FIR, Complainant’s son aged about 10 years disclosed him that on the very same day Appellant/Accused herein took him to Nala (Drainage area) in Delhi and committed sodomy (unnatural sexual act) and threatened him not to tell the incident to anybody otherwise he would kill him. On the said complaint instant FIR was lodged and the Appellant/Accused was arrested on the same day. Hence, the instant criminal appeal assailing the impugned judgment and order on sentence on the ground of validity, propriety and legality. The appellant’s counsel submitted that the learned Trial Court failed to appreciate the oral and circumstantial evidences on record. It was further submitted that there is delay in lodging the FIR and the delay in lodging the FIR has not been explained by the complainant. It is also submitted that there is no medical report of the victim on record showing any sodomy. Therefore, these facts are sufficient to create doubt over the allegations. The respondent’s counsel submitted that the evidence on record squarely proved that victim was minor at the time of commission of crime and the appellant has committed sodomy on the victim as all prosecution witnesses, exhibited documents and other circumstantial evidences have proved the case of the prosecution beyond reasonable doubt. Therefore, the findings of the Trial Court do not warrant any interference. The Court held that the prosecution have succeeded to prove that accused committed sodomy on victim. Therefore, he is guilty for the offence punishable under Section 377 of the IPC and Section 6 of the POCSO Act. The Court observed, “In order to bring home the guilt of accused within the ambit of Section 6 of the POCSO Act, it was incumbent for the prosecution to prove that the victim was a minor, i.e. below the age of 18 years at the time of commission of crime. For convicting the Appellant/Accused for an offence punishable under Section 377 of the IPC, the prosecution has to prove that the Appellant/Accused had committed sodomy upon the victim.”

IN THE HIGH COURT OF DELHI AT NEW DELHI 21st January 2022 Reserved on: Pronounced on: 04th March 2022 CRL.A. 321 2016 & CRL.MNo. 385 2020 LAXMAN @ LUCKY ..... Appellant Through: Mr. Vijay Kumar Shukla Ms. Nupur Shukla Mr. Anirudh Gulati and Mr. Digant Mishra .... Respondent Through: Mr. Panna Lal Sharma APP. HON’BLE MR. JUSTICE CHANDRA DHARI SINGH J U D G E M E N T) CHANDRA DHARI SINGH J. The instant appeal has been filed under section 374 of the Code of Criminal Procedure Code 1973 by the Appellant Accused against the judgment of conviction dated 15th January 2016 passed by learned Additional Sessions Judge 01 North District Rohini Delhi in Session Case SC) No. 39 2015 wherein Appellant Accused was convicted for the offences punishable under sections 323 506(II) 377 of the Indian Penal Code 1860 and under Section 6 of the CRL.A. 321 2016 Protection of Children from Sexual Offences Act 2012 and vide order on sentence dated 28th January 2016 Appellant Accused had been awarded with the following sentences:  Rigorous Imprisonment for a period of 10 years along with fine of Rs. 5 000 in default Simple Imprisonment for a period of 1 month for the offence punishable under Section 6 of the POCSO Act  Rigorous Imprisonment for a period of 3 months along with fine of Rs. 1 000 in default further Simple Imprisonment for a period of 10 days for the offence punishable each for offences under Section 323 of the IPC  Rigorous Imprisonment for a period of 1 year along with fine of Rs. 1 000 in default further Simple Imprisonment for a period of 1 month for the offence punishable each for offences under Section 506of the IPC  Since sentence is awarded to the convict for the offence punishable under Section 6 of the POCSO Act no separate sentence is awarded to convict for the offence punishable under Section 377 of the IPC  Sentences shall run concurrently and the benefit of Section 428 of the Cr.P.C is accorded to the convict. Factual matrix of the matter in nutshell is that the instant FIR bearing No. 18 2015 was registered on the written complaint lodged by the complainant father of the victim. As per the FIR on 5th January 2015 at about 8:00 P.M. Complainant’s son aged about 10 years disclosed him that on the very same day at about 4:00 P.M. CRL.A. 321 2016 Appellant Accused herein took him to Nala Near DESU Colony Rana Pratap Bagh Delhi and committed sodomy unnatural sexual act) and threatened him not to tell the incident to anybody otherwise he would kill him. On the said complaint instant FIR was lodged and the Appellant Accused was arrested on the same day i.e. on 5th January 2015. The offences levelled against the accused were triable by the Sessions Court therefore the learned Magistrate wisely transmitted the proceedings to the concerned Sessions Court for trial of the accused within the purview of law. The learned ASJ framed the charges against the accused to which the Appellant Accused pleaded not guilty and claimed trial. In order to bring home guilt of the accused prosecution examined total 7 witnesses in this case namely PW 1: Victim PW 2: Principal of the School in which the victim was studying who had proved the date of birth of the victim as 28th December 2005 as per his School Record which is Ex PW2 A D PW 3: HC Jai Bhagwan PW 4: Ct. Ram Swaroop PW 5: Complainant father of the victim who had deposed on the lines of his complaint and proved it on record as Ex PW5 A PW 6: Virender Singh learned Metropolitan Magistrate who recorded the statement of victim under Section 164 of the Cr.P.C which is exhibited as Ex PW l A and PW 7: SI Kuldeep Singh IO of the case who had prepared the tehrir exhibited as Ex PW7 A on the basis of complaint and prepared site plan of the place of occurrence as Ex PW7 B. CRL.A. 321 2016 Learned ASJ recorded statement of the Appellant Accused prescribed under Section 313(b) of the Cr.P.C. Upon conclusion of the Trial in Sessions Case No. 39 2015 the learned ASJ vide impugned judgment dated 15th January 2016 has convicted the Appellant Accused for the offences punishable under Sections 323 506(II) 377 of the IPC and Section 6 of POCSO Act and vide order dated 28th January 2016 he was sentenced as prescribed under Para No. 1 hereinabove. Hence the instant criminal appeal assailing the impugned judgment and order on sentence on the ground of validity propriety and legality. The learned counsel for the Appellant Accused vehemently submitted that the learned Trial Court failed to appreciate the oral and circumstantial evidence(s) on record in its proper perspective and committed error by taking adverse inference against the accused in regard to charges framed against him. Learned counsel further submitted that there is delay in lodging the FIR as the incident of sodomy happened on 15th August 2014 however the present complaint was lodged on 5th January 2015. The delay in lodging the FIR has not been explained by the complainant. It is also submitted that there is no medical report of the victim on record showing any sodomy. It is further submitted that the father of victim had himself denied medical examination of his son. Therefore these facts are sufficient to create doubt over the allegations. Learned counsel for the Appellant Accused further submitted that the incident related to slapping the victim was not even mentioned CRL.A. 321 2016 in the FIR however the same was added during the statements recorded under Sections 161 and 164 of the Cr.P.C of the victim as well as his father complainant. The FIR merely mentions that the victim told his father complainant that on 5th January 2015 the Appellant Accused had committed sodomy on him and further mentioned that the same used to happen frequently but had never told about it earlier because of the fear Appellant Accused had imposed on him which clearly shows that the story was merely made up by the father of the victim Appellant Accused in relation to the property due to which the families of the complainant as well the Appellant Accused were inimical to each other. The counsel on behalf of the Appellant Accused submitted that the victim mentioned in his statements that the Appellant Accused committed sodomy on him multiple times near the drainage area however there is not a single witness to prove that whether such incident had ever happened. It is further submitted that as per the statements of the victim the Appellant Accused had slapped him when he came to the shop to buy matchsticks however neither this statement has been mentioned in the FIR nor a single eye witness has been examined to concur that incident especially the shopkeeper who must have been present on the shop during the time of the alleged Learned counsel on behalf of the Appellant Accused submitted that the father complainant had refused to let his son victim go for any medical test which clearly raises suspicion over the fact that whether CRL.A. 321 2016 any kind of offensive act had been committed on the victim or not. Alternatively learned counsel for the Appellant Accused submitted that the Appellant Accused was arrested on 5th January 2015 and since then he is languishing in jail and has already completed about 7 years the Appellant Accused was about 21 years young boy on the date of the incident his conduct in jail is found to be satisfactory in the nominal roll. Therefore keeping in view his young age as well as the financial condition it is prayed that his sentence may be reduced for the period already undergone. 10. Per contra Mr. Panna Lal Sharma learned APP for the State has vehemently raised objection to the contentions propounded on behalf of the Appellant Accused and submitted that the evidence on record squarely proved that victim was minor at the time of commission of crime the appellant has committed sodomy on the victim and all prosecution witnesses exhibited documents and other circumstantial evidence(s) have proved the case of the prosecution beyond reasonable doubt. Therefore the findings of the Trial Court do not warrant any interference. 11. Heard learned counsels for parties at length and perused the record. This Court has given thoughtful consideration to the arguments advanced on behalf of the parties. 12. Before adverting to facts of the case it is necessary to set out the relevant provisions: Section 377 of the IPC “377. Unnatural offences.—Whoever voluntarily has carnal intercourse against the order of nature with any CRL.A. 321 2016 man woman or animal shall be punished with 1[imprisonment for life] or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.” b. Section 6 of the POCSO Act. 6. Punishment for aggravated penetrative sexual “(1) Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years but which may extend to imprisonment for life which shall mean imprisonment for the remainder of natural life of that person and shall also be liable to fine or with death. 2) The fine imposed under sub section shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.” As referred above in order to bring home the guilt of accused within the ambit of Section 6 of the POCSO Act it was incumbent for the prosecution to prove that the victim was a minor i.e. below the age of 18 years at the time of commission of crime. For convicting the Appellant Accused for an offence punishable under Section 377 of the IPC the prosecution has to prove that the Appellant Accused had committed sodomy upon the victim as alleged in the FIR. The prosecution primarily relied upon the oral version of victimas well as his father complainantwas examined for the purpose of determination of the age of the victim at the time of the incident. As per the statement of PW 2 and PW 5 it stated that at CRL.A. 321 2016 time of the commission of offence the victim was minor aged 9 years old boy. In order to test the veracity of the depositions of the victim PW 1) it may be relevant to make reference to his examination in chief in which he stated as under: “On the day of incident in the evening time my father told me to purchase 5 matchboxes. I know accused Lucky who resides in our neighborhoodin between my house and the house of accused. In those two jhuggis two different family are residing. We are not on talking terms with those two families. I do not know the names of the persons residing in those two jhuggis. My father is a rickshaw puller. He plies rickshaw in Old Delhi area such as Sadar Bazar Barfkhana Sabzi Mandi Paharganj. Lucky also goes to a job but I do not know nature of his job. I go to school in evening session and came back to my home at about 5 pm. My mother takes me to School and also used to bring me back from School. My father comes back from his work at 12 noon and then by 6 in the evening. I did not tell about the activities of accused to my father. The accused comes back at about 1 AM in the night and goes to his work at about 5 am. The accused used to do the activities at 10 pm and he used to take me in the drain by foot. That place is at some distance from my house. He used to leave me at that place only and I used to come back to my home alone. On the way I had to cross a road which is main road on which trucks and buses ply. It used to take long time to come back to my house. Again he used to take me in evening hours. When my mother used to ask me as to I was where I kept mum. Vol. Accused had threatened me to face dire consequences. Nobody in our vicinity sleep outside their houses. It is correct that on the way I used to find many passersby rickshaw pullers hawker etc. and I never used to talk to anybody. It is correct that I never raised alarm when accused used to do wrong act and I never denied to accompany him. The parents of accused are residing with him but I am not acquainted with them. The accused never threatened me by showing any weapon to me. Some persons used to be present at the spot where the accused used to take me. It is incorrect to suggest that except for the small quarrel CRL.A. 321 2016 with the accused no incident of any sexual assault of any kind was committed by the accused on me.” 15. The relevant reference of PW 2 Sh. Narendra Kumar Mishra Principal Incharge MCD Primary School Rajpura Gudmandi II Delhi 07 is stated as under: “Today I have brought the summoned record pertaining to the date of birth of victim N. As per the admission register the said pupil was got admitted in our school on 05.09.2011 and as per our record his date of birth is 28.12.2005. Certified copy of the said register is Ex. PW2 A. A certificate has also been issued in this regard by me which is Ex. PW2 B bearing my signature at point A. Certified copy of admission form is Ex. PW2 C and certified copy of affidavit which was given at the time of admission of the said pupil is Ex. PW2 D.” 16. The relevant reference of the Examination in chief of PW 5: father of victim complainant is stated as under: “My son N aged about 10 years disclosed me that when he went to buy a match box a boy namely Laxman met him and slapped him without any reason and gave life threat. He further informed me that when he was flying kites alongwith his friend Pankaj and when the kite got cut off he went to fetch the same at DESU Colony Rana Pratap Bagh Delhi there also the accused Laxman met him. The accused took my son towards the Nala and put his pennis in the mouth of victim forcibly and threatened him by giving life threat not to disclosed this fact to someone. My son disclosed me that the accused has done such wrong act with him 4 5 times but my son could not tell me. Thereafter I made a call at 100 number….” 17. The relevant reference of the cross examination of PW 5: father of victim complainant is stated as under: CRL.A. 321 2016 “I have never attended any school. We are four brothers and one sister out of which two brothers have already been expired. My sister is having her matrimonial house in Lucknow. My elder brother is residing in the same locality on the first floor. My elder brother have three daughter and one son. My other deceased brothers have no family. It is correct that there is a court case pending between my elder brother and me with respect to the jhuggi situated in property no. T 207 and I am the petitioner plaintiff in that case. Earlier also I have filed a case for the partition of a plot in Village Mukandpur against my brothers which has been settled and the plot was partitioned in equal share. Afterwards I have filed the another case for the share space of the Jhuggi of Rajpura Gudmandi. It is correct that I do not have cordial relations with my elder brother and his family and there is no talking terms between us. It is correct that my wife has lodged so many complaints against my elder brother and his son in the PS. I have many pending litigations in the court. I have two children. My elder son is aged about 10 years and my younger daughter is aged about 5 years. I do not know whether my wife knows how to sign. She is little bit literate but I do not know exactly about her educational qualification. In plot no. T 207 there are 10 12 Jhuggis approximately having same address and in all the jhuggis separate families are residing. There are two Jhuggis between my jhuggi and the jhuggi of accused. We have talking terms with the families of those two jhuggis. I never had any dispute with the father of the accused. My son studies in class V in a nearby government school. But I do not know the name of school. My wife takes my son to school and also bring him back. CRL.A. 321 2016 It is wrong to suggest that my son never disclosed me about any sexual assault on him or that in order to extort money from the accused and his family we have lodged the false complaint against the accused through our son. It is wrong to suggest that the father of accused wanted to sell his jhuggi and I wanted to purchase the same but due to some dispute in respect to sale amount the deal could not materialize and due to same reason the accused has been falsely implicated in the present case.” 18. The overall circumstances discussed above if cumulatively considered lead to the only conclusion that Appellant Accused has committed sodomy on the minor victim aged about 10 years at the time of commission of the offence. Eventually the prosecution succeeded to prove that accused committed sodomy on victim. Therefore he is guilty for the offence punishable under Section 377 of the IPC and Section 6 of the POCSO Act. The learned Trial Court has correctly dealt with the oral and circumstantial evidence on record in its proper perspective and held the Appellant Accused guilty for the charges pitted against him. Therefore circumstances do not permit to cause any interference in the findings of conviction expressed by the learned Trial Court in this case. 19. At juncture learned counsel for Appellant Accused submitted that the Appellant Accused was youngster aged about 21 22 years old at the time of commission of offence and had committed crime in a heat of passion. It is further submitted that there is no criminal history of the Appellant Accused and more so his conduct is also found to be satisfactory as per nominal roll during the period of incarceration. In view of these circumstances he urged to reduce the CRL.A. 321 2016 substantive sentence imposed on the Appellant Accused for the charges pitted against him. 20. This Court has perused the latest nominal roll dated 2nd December 2021 which is on record. As per the nominal roll the conduct of the Appellant Accused is found to be satisfactory in the custody. Moreover there is also no other criminal case pending against him. 21. After giving due consideration to the submissions of learned counsel for the Appellant Accused in the light of circumstances discussed above this court find substance in his contention to reduce the substantive sentence inflicted on the Appellant Accused. The accused was about 21 years old at the time of the commission of crime. He has already undergone substantial period of sentence i.e. about 7 years. Learned Trial Court had imposed the sentence of Rigorous Imprisonment of 10 years and a fine for offences punishable under Section 377 of the IPC and Section 6 of the POCSO Act. In view of his age mitigating factors referred above and considering the age of the appellant accused at the time of offence non involvement in any other criminal case and his conduct in jail during incarceration this court is of the opinion that the interest of justice would met if the substantive sentence imposed upon the appellant accused is reduced to the period already undergone by him. 22. Accordingly the criminal appeal filed by the appellant accused is allowed in part. Consequently the judgment dated 15th January 2016 passed by the learned ASJ holding the appellant accused guilty is upheld however the order on sentence dated 28th January 2016 is CRL.A. 321 2016 not paid. modified to the sentence for the period already undergone by the appellant. The Appellant Accused shall be set at liberty forthwith if his detention is not required in connection with any other case subject to depositing the fine as ordered by the learned Trial Court if already 23. The appeal and pending application if any stands disposed of. 24. Copy of this order be sent to the Jail Superintendent for 25. The judgment be uploaded on the website forthwith. CHANDRA DHARI SINGH) MARCH 04 2022 Aj ct CRL.A. 321 2016

Every delay in conducting a disciplinary enquiry does not, ipso facto, lead to the enquiry being vitiated: Supreme Court of India

Whether prejudice is caused to the officer who is being enquired into is a matter which has to be decided on the basis of the circumstances of each case. Prejudice must be demonstrated to have been caused and cannot be a matter of surmise. Apart from submitting that the first respondent was unable to proceed on deputation or to seek promotion, there is no basis on which it could be concluded that his right to defend himself stands prejudicially affected by a delay of two years in concluding the enquiry. Such an observation was made by the Hon’ble Supreme Court of India before Hon’ble Justice Dr Dhananjaya Y Chandrachud,  Hon’ble Justice Vikram Nath & Hon’ble Justice Hima Kohli in the matter of State of Madhya Pradesh & Anr vs Akhilesh Jha & Anr [Civil Appeal No 5153 of 2021]. The facts of the case were that the first respondent was posted as Superintendent of Police at Alirajpur from June 2012 to June 2015. It has been alleged that in spite of the instructions issued by the Inspector General of Police, Indore Zone to disband the “Gunda squad”, the first respondent constituted, supervised and operated the squad. It has been alleged that on 1 June 2014, individuals belonging to such a squad, acting under the supervision of the first respondent arrested an accused who was taken into custody after being called to the police station by the members of the Gunda Squad. The person, who was under interrogation, died in custody on 3 June 2014. A magisterial enquiry was conducted into the custodial death and a report was submitted on 10 October 2014. The report contained observations against the first respondent on his role in illegally constituting the squad. A departmental enquiry was convened against the first respondent and a charge sheet was issued. The allegation in the charge sheet was that the first respondent had committed acts of indiscipline and insubordination by not following the instructions issued by his superior officers regarding the disbanding of the Gunda Squad. The first respondent moved the Central Administrative Tribunal1 at Jabalpur for challenging the charge-sheet which was served on him on 8 June 2016. The Tribunal, by its order dated 28 July 2016, declined to interfere with the charge-sheet but granted an opportunity to the first respondent to initiate appropriate proceedings. The Tribunal, by its order dated 5 January 2018, quashed the charge-sheet issued to the first respondent and the High court also appreciated the said order. Aggrieved the appellate preferred the instant appeal. The Hon’ble Supreme Court observed that “The statement of imputations contains a reference to the Duty Register as well as the General Diary at the material time. The list of documents annexed to the charge-sheet refers to 21 documents on the basis of which the charges were intended to be proved.” Additionally, the Hon’ble Supreme Court “On the basis of the above material which has been placed on the record, it was impossible to come to the conclusion that the charge against the first respondent is vague or ambiguous. The charge-sheet, together with the statement of imputations, contains a detailed elaboration of the allegations against the first respondent and does not leave the recipient in a measure of doubt or ambiguity over the nature of the case he is required to answer in the disciplinary enquiry. The finding that the charge is vague is palpably in error” Finally, the Hon’ble Supreme Court allowed the instant appeal and set aside the impugned order. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur The facts of the case were that the first respondent was posted as Superintendent of Police at Alirajpur from June 2012 to June 2015. It has been alleged that in spite of the instructions issued by the Inspector General of Police, Indore Zone to disband the “Gunda squad”, the first respondent constituted, supervised and operated the squad. It has been alleged that on 1 June 2014, individuals belonging to such a squad, acting under the supervision of the first respondent arrested an accused who was taken into custody after being called to the police station by the members of the Gunda Squad. The person, who was under interrogation, died in custody on 3 June 2014. A magisterial enquiry was conducted into the custodial death and a report was submitted on 10 October 2014. The report contained observations against the first respondent on his role in illegally constituting the squad. A departmental enquiry was convened against the first respondent and a charge sheet was issued. The allegation in the charge sheet was that the first respondent had committed acts of indiscipline and insubordination by not following the instructions issued by his superior officers regarding the disbanding of the Gunda Squad. The first respondent moved the Central Administrative Tribunal1 at Jabalpur for challenging the charge-sheet which was served on him on 8 June 2016. The Tribunal, by its order dated 28 July 2016, declined to interfere with the charge-sheet but granted an opportunity to the first respondent to initiate appropriate proceedings. The Tribunal, by its order dated 5 January 2018, quashed the charge-sheet issued to the first respondent and the High court also appreciated the said order. Aggrieved the appellate preferred the instant appeal. The Hon’ble Supreme Court observed that “The statement of imputations contains a reference to the Duty Register as well as the General Diary at the material time. The list of documents annexed to the charge-sheet refers to 21 documents on the basis of which the charges were intended to be proved.” Additionally, the Hon’ble Supreme Court “On the basis of the above material which has been placed on the record, it was impossible to come to the conclusion that the charge against the first respondent is vague or ambiguous. The charge-sheet, together with the statement of imputations, contains a detailed elaboration of the allegations against the first respondent and does not leave the recipient in a measure of doubt or ambiguity over the nature of the case he is required to answer in the disciplinary enquiry. The finding that the charge is vague is palpably in error” Finally, the Hon’ble Supreme Court allowed the instant appeal and set aside the impugned order. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur The Hon’ble Supreme Court observed that “The statement of imputations contains a reference to the Duty Register as well as the General Diary at the material time. The list of documents annexed to the charge-sheet refers to 21 documents on the basis of which the charges were intended to be proved.” Additionally, the Hon’ble Supreme Court “On the basis of the above material which has been placed on the record, it was impossible to come to the conclusion that the charge against the first respondent is vague or ambiguous. The charge-sheet, together with the statement of imputations, contains a detailed elaboration of the allegations against the first respondent and does not leave the recipient in a measure of doubt or ambiguity over the nature of the case he is required to answer in the disciplinary enquiry. The finding that the charge is vague is palpably in error” Finally, the Hon’ble Supreme Court allowed the instant appeal and set aside the impugned order. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur Additionally, the Hon’ble Supreme Court “On the basis of the above material which has been placed on the record, it was impossible to come to the conclusion that the charge against the first respondent is vague or ambiguous. The charge-sheet, together with the statement of imputations, contains a detailed elaboration of the allegations against the first respondent and does not leave the recipient in a measure of doubt or ambiguity over the nature of the case he is required to answer in the disciplinary enquiry. The finding that the charge is vague is palpably in error” Finally, the Hon’ble Supreme Court allowed the instant appeal and set aside the impugned order.

IN THE CIVIL APPELLATE JURISDICTION Civil Appeal No 51521 Arising out of SLPNo 46520 State of Madhya Pradesh & Anr Akhilesh Jha & Anr JUDGMENT Dr Dhananjaya Y Chandrachud J This appeal arises from a judgment of a Division Bench of the High Court of Madhya Pradesh dated 5 September 2019 The first respondent was posted as Superintendent of Police at Alirajpur from June 2012 to June 2015. It has been alleged that in spite of the instructions issued by the Inspector General of Police Indore Zone to disband the “Gunda squad” the first respondent constituted supervised and operated the squad. It has been alleged that on 1 June 2014 individuals belonging to such a squad acting under the supervision of the first respondent arrested an accused who was taken into custody after being called to the police station by the members of the Gunda Squad. The person who was under interrogation died in custody on 3 June 2014. A magisterial enquiry was conducted into the custodial death and a report was submitted on 10 October 2014. The report contained observations against the first respondent on his role in illegally constituting the squad. Challenging the observations made by the JMFC Alirajpur in his report dated 10 October 2014 the first respondent instituted proceedings before the High Court of Madhya Pradesh. By its order dated 2 March 2016 the High Court expunged some of the observations contained in the magisterial report against the first respondent on the ground that they were in violation of the principles of natural justice. On 21 April 2016 the High Court directed that in case any action is initiated against the first respondent on the basis of the magisterial report a proper opportunity of being heard in response to the allegations should be granted to him before drawing any adverse conclusion. On 8 June 2016 a departmental enquiry was convened against the first respondent and a charge sheet was issued. The allegation in the charge sheet was that the first respondent had committed acts of indiscipline and insubordination by not following the instructions issued by his superior officers regarding the disbanding of the Gunda Squad. The first respondent submitted his reply to the charge sheet on 7 July 2016 denying the allegations levelled against him. Soon thereafter he moved the Central Administrative Tribunal 1 at Jabalpur for challenging the charge sheet which was served on him on 8 June 2016. The Tribunal by its order dated 28 July 2016 declined to interfere with the charge sheet but granted an opportunity to the first respondent to initiate appropriate proceedings if a decision adverse to him was taken on the basis of the reply to the charge sheet. The first respondent once again moved the Tribunal for challenging the charge sheet dated 8 June 2016 in OA 5817 on the ground that no decision had been taken following his reply to the charge sheet and that as a result of the pendency of the disciplinary proceedings his deputation and promotional avenues had been adversely affected The Tribunal by its order dated 5 January 2018 quashed the charge sheet issued to the first respondent. The following three grounds weighed with the There was a delay of nearly two years The charges were ambiguous and The High Court had expunged the remarks in the magisterial enquiry which was held to enquire into the custodial death The order of the Tribunal was assailed by the appellants before the High Court By its judgment dated 5 September 2019 the Division Bench dismissed the petition affirming the findings of the Tribunal We have heard Ms Ankita Chaudhary Deputy Advocate General appearing on behalf of the appellants and Mr Braj K Mishra Counsel appearing on behalf of the first respondent Assailing the judgment of the Tribunal which has been confirmed by the High Court Ms Ankita Chaudhary submitted that ex facie the charge sheet and the imputations would indicate that the finding of vagueness is unsustainable Counsel submitted that the gravamen of the charge sheet is that the first respondent who was posted as the Superintendent of Police Alirajpur had violated the administrative orders of the Inspector General of Police for disbanding the Gunda Squads and that a person who had been interrogated by the Squad which was constituted operated and supervised by the first respondent died in custody. Counsel submitted that first and foremost the expunging of the remarks in the report of the magisterial enquiry would have no bearing on the entitlement of the State to exercise its disciplinary authority over the first respondent. Secondly it was urged that the Tribunal had declined to quash the charge sheet in the first OA which was filed by the first respondent before the Bench at Jabalpur. Having declined to quash the charge sheet at that stage it was not open to the Tribunal to quash it on a second OA on the plea that there was a delay in completing the enquiry. Thirdly Counsel submitted that there was in fact no delay and if there was a requirement for the enquiry to be concluded within a time schedule such a direction could have been issued However there was no justification to quash the enquiry and to obstruct the disciplinary proceedings which have been convened by the State in exercise of its authority over the respondent. On the other hand it has been urged on behalf of the first respondent that the charge sheet is devoid of material particulars including the date on which the instructions for disbanding the Gunda Squads were issued by the Inspector General of Police as well as the specific role alleged to have been performed by the first respondent in the circumstances leading to the alleged death of the person who was under interrogation. Moreover it has been submitted that the delay as a matter of fact caused prejudice to the first respondent since he was deprived of his opportunities of deputation and promotion at par with his other batch mates. Hence it has been urged that the delay in conducting the disciplinary proceeding has caused serious prejudice to the first respondent The charge sheet was issued to the first respondent in exercise of powers conferred by Rule 10 of the All India ServicesRules 1969 on 8 June 2016. The charge sheet which is annexed to the communication issued by the Home Department of the State of Madhya Pradesh contains the “You have violated the Rule 03 of All India ServicesRules 1969. The detailed particulars of the aforesaid charges are attached.” The statement of charges has been appended to the charge sheet. The statement of charges indicates that the gravamen of the allegation against the first respondent is that the Inspector General of Police Indore Zone had issued instructions to all Superintendents of Police that no officer working in the District shall constitute a Gunda Squad and if such a Squad is working then it must be dissolved immediately. The incident leading to custodial death took place while the individual was in the custody of Police Station Sorwa of District Alirajpur on 3 June 2014. The statement of imputations states thus “The incident of the death in the police custody happened in PS Sorwa of the District Alirajpur on 03.06.2014. The Superintendent of Police District Alirajpur had sent Subedar K.P Singh Tomar working as the Squad In charge to interrogate the suspect deceased Jhingla in Crime No.39 14 Section 307 IPC of the police Station Sorwa. Subedar Tomar inflicted injuries to the deceased Jhingla by assaulting him during interrogation which led the suspect Jhingla to death. When the aforesaid incident took place the squad in charge Subedar Tomar and other 05 policemen were suspended on 03.06.2014 In the aforesaid incident Subedar K.P. Singh Tomar and his all subordinate employees were appointed as the reserve force in the police control room but Shri Akhilesh Jha the then Superintendent of Police District Alirajpur had been using all these employees regularly as the Gunda Squad while Shri Akhilesh Jha the then Superintendent of Police Alirajpur refused To have constituted Gunda Squad" in Letter No SP Ali Steno 736 14 dated 15.07.2014. In this regard the clarification was sought from the then Superintendent of Police Shri Akhilesh Jha vide letter no. IGP E Ka.F 29 47 45 3 A 14 dated 28.09.2014 of the office.” The statement of imputations contains a reference to the Duty Register as well as the General Diary at the material time. The list of documents annexed to the charge sheet refers to 21 documents on the basis of which the charges were intended to be proved On the basis of the above material which has been placed on the record it was impossible to come to the conclusion that the charge against the first respondent is vague or ambiguous. The charge sheet together with the statement of imputations contains a detailed elaboration of the allegations against the first respondent and does not leave the recipient in a measure of doubt or ambiguity over the nature of the case he is required to answer in the disciplinary enquiry. The finding that the charge is vague is palpably in error The Tribunal declined to quash the charge sheet by its initial order dated 28 July 2016. However by a subsequent order dated 5 January 2018 it proceeded to do exactly what it had declined to do by its previous order. The Tribunal purportedly did so on the basis that prejudice had been caused to the first respondent by the denial of an opportunity for deputation or for promotion as a result of the pendency of the proceedings. The line of reasoning which weighed with the Tribunal is plainly erroneous. The Tribunal would have been justified in directing the expeditious conclusion of the enquiry but instead it proceeded to quash the enquiry in its entirety. This in our view was clearly impermissible. Every delay in conducting a disciplinary enquiry does not ipso facto lead to the enquiry being vitiated. Whether prejudice is caused to the officer who is being enquired into is a matter which has to be decided on the basis of the circumstances of each case. Prejudice must be demonstrated to have been caused and cannot be a matter of surmise. Apart from submitting that the first respondent was unable to proceed on deputation or to seek promotion there is no basis on which it could be concluded that his right to defend himself stands prejudicially affected by a delay of two years in concluding the enquiry. The High Court therefore in our view has clearly failed to properly exercise the jurisdiction vested in it by simply affirming the judgment of the Tribunal. The judgment of the Tribunal suffered from basic errors which go to the root of the matter and which have been ignored both by the Tribunal as well as by the High Court For the above reasons we allow the appeal and set aside the impugned judgment and order of the High Court dated 5 September 2019. The charge sheet was issued to the first respondent while he was in service and hence the disciplinary enquiry can proceed to its logical conclusion. The disciplinary enquiry should be concluded expeditiously preferably by 31 July 2022. In the event that the first respondent is entitled to the release of any part of his retiral dues including gratuity in consonance with law necessary steps for that purpose shall be taken within a period of two months from the date of this order Pending application if any stands disposed of SECTION IV C S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to AppealNo(s).4655 2020 Arising out of impugned final judgment and order dated 05 09 2019 in MPN No. 3854 2018 passed by the High Court of M.P. Principal Seat at Jabalpur STATE OF MADHYA PRADESH & ANR. VERSUS AKHILESH JHA & ANR. WITH IA No. 97801 2021 CLARIFICATION DIRECTION Date : 06 09 2021 This petition was called on for hearing today HON BLE DR. JUSTICE D.Y. CHANDRACHUD HON BLE MR. JUSTICE VIKRAM NATH HON BLE MS. JUSTICE HIMA KOHLI Ms. Ankita Chaudhary Dy AG Mr. Mrinal Elker Mazumdar AOR Mr. Manish Yadav Adv Mr. Braj K. Mishra Adv Mr. Joby P. Varghese AOR Mr. Rajneesh Kumar Jha Adv Mr. Nishant Kumar Srivastava Adv Mr. Aby P. Varghese Adv Donna Xavier Adv UPON hearing the counsel the Court made the following O R D E R The appeal is allowed in terms of the signed reportable judgment Pending application if any stands disposed of AR CUM PS COURT MASTER SAROJ KUMARI GAUR Signed reportable judgment is placed on the file

Speedy trial is the right of the accused who cannot be kept in custody for an indefinite period: High Court of Delhi

The right to speedy trial is a concomitant of Article 21 of the Constitution of India and it can be presumed that one the facets would also be that the accused cannot be kept in custody indefinitely and the same was upheld by High Court of Delhi through the learned bench led by Justice Subramonium Prasad in the case of NANCY GILL vs. STATE [BAIL APPLN. 2557/2018] on 08.02.2022. The facts of the case are the Complainant is a jeweller by profession and he has a jewellery showroom which he runs with his two brothers. The Petitioner and her family were the customers of the complainant and they had a relationship with the Complainant which goes back thirty years with the Petitioner and her family regularly purchasing jewellery from the Complainant. The Petitioner stated that she had met Dr. Ajja Binti Kifli, cousin sister of the King of Brunei in U.S.A., who wanted to visit political leaders in India and gift them jewellery. The Complainant accordingly purchased the gold and diamonds required for the jewellery, and handed over to the Petitioner. The Complainant then visited the house of the Petitioner where the family of the Petitioner allegedly fraudulently told him that the Petitioner had ran away with the jewellery. On the basis of this, the instant FIR was registered. The petitioner’s counsel submitted that he was falsely implicated in the instant case. He argued that the Complainant, with active connivance of the local police instituted this case against the Petitioner. It was submitted that no recovery was made from the Petitioner and that the chargesheet has already been filed, therefore, he seeks bail. The respondent’s counsel opposed the instant bail application on the grounds that the Petitioner played a crucial role in the commission of the offences alleged in the instant FIR. She further submitted that the investigation is not complete yet and the Petitioner is not cooperating with the investigating officers. In view of facts and circumstances of the case, Court was of the opinion that the Petitioner cannot be kept endlessly behind bars, therefore, granted custody parole to petitioner to accompany the Investigating Officer so as to satisfy him about the address where the Petitioner intends to reside in case she is granted bail. The Court observed that “the right to speedy trial is a concomitant of Article 21 of the Constitution of India and it can be presumed that one the facets would also be that the accused cannot be kept in custody indefinitely.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 08th FEBRUARY 2022 IN THE MATTER OF: BAIL APPLN. 2557 2018 NANCY GILL ..... Petitioner ..... Respondent HON BLE MR. JUSTICE SUBRAMONIUM PRASAD Through Mr. R K Wadhwa Advocate with Mr. Sidheswar Rai Mr. Binod Kumar Gautam Mr. Gaurav Takar Through Ms. Neelam Sharma APP for the SUBRAMONIUM PRASAD J. State with Insp. Pawan Yadav Police Station Karol Bagh Mr. Kuldeep Gola Advocate for the This application under Section 439 Cr.P.C. has been filed seeking grant of bail in FIR No. 576 2015 dated 22.07.2015 registered at Police Station Karol Bagh under Section 420 of the Indian Penal Code 1860 hereinafter “IPC”). The facts in brief leading up to this petition are as follows: It is stated that the Complainant is a jeweler by profession and has a jewelry showroom in Karol Bagh by the name of M s. Mahalaxmi Jewellers which he runs with his two brothers. The Petitioner herein and her family are the customers of the complainant and they have a relationship with the Complainant BAIL APPLN. 2557 2018 which goes back thirty years with the Petitioner and her family regularly purchasing jewellery from the Complainant. It is stated that in March 2015 the Petitioner informed the Complainant about a big project which she wanted to discuss in private. It is stated that the Petitioner dishonestly represented that the Prime Minister of India had started a programme wherein the King of Brunei wanted to start 14 Super Specialty Hospitals in different parts of India with the first opening in Ahmedabad Gujrat. The Petitioner had stated that she had met Dr. Ajja Binti Kifli cousin sister of the King of Brunei in U.S.A. who wanted to visit political leaders in India and gift them jewellery. It is stated that the Complainant was induced into accepting the order worth more than one crore rupees without taking any advance and agreed to give 5% commission to the Petitioner and her family. It is stated that all communication between the Complainant and Dr. Kifli took place through the Petitioner and the Petitioner thereafter informed the Complainant that the total order comprised of: 1) 10 gold bangles + 2 diamond bangles worth 75 lacs rupees 2) 2 broad gents bracelets worth 12 lacs rupees 3) 1 gents bracelet worth 4 lacs rupees 4) 51 coins of the Prime Minister worth 54 lacs rupees 5) 31 coins of the Home Minister worth 33 lacs rupees and 6) a long necklace for the king worth 22 lacs rupees. When the Complainant sought for 50% advance money yet again the Petitioner and her family reassured the Complainant that the money would be given to him at the time BAIL APPLN. 2557 2018 of delivery. It is stated that the Complainant accordingly purchased the gold and diamonds required for the jewellery and handed over the same on 01.06.2015 to the Petitioner and her family at 6:20 A.M. at their home. The Petitioner informed the Complainant that he would get the money by 3rd June 2015. Thereafter on 2nd June 2015 the Petitioner informed the Complainant that she was flying to Amritsar for the blessings of Guru Nanak Devji. When the Complainant later tried to contact the Petitioner on her phone it was switched off. The Complainant then visited the house of the Petitioner where the family of the Petitioner allegedly fraudulently told him that the Petitioner had ran away with the jewellery. It is stated that Petitioner’s family also threatened the Complainant and his family. At this juncture the Complainant realized that the story involving the King of Brunei had been concocted by the Petitioner and her family to cheat the Complainant of jewellery worth more than Rs. 2 crores. On the basis of this the instant FIR was registered. f) Chargesheet was filed on 03.07.2018. The Petitioner has previously moved this Court for regular bail however the application was withdrawn as chargesheet had been filed. Bail application before the Ld. M.M. was rejected. The Petitioner has now approached this Court for regular bail. 3. Mr. R.K. Wadhwa learned Counsel for the Petitioner has submitted that the Petitioner has been falsely implicated in the instant case and has BAIL APPLN. 2557 2018 been in judicial custody since 07.05.2018. He has argued that the Complainant with active connivance of the local police has instituted this case against the Petitioner and that other accused persons i.e. the Petitioner’s husband two daughters and son have been given a clean chit. 4. Mr. Wadhwa has contended that the family of the Petitioner and the Complainant were known to each other and that the Complainant was aware of the disputes that had arisen between the Petitioner and her husband and therefore the Complainant in collusion with the husband of the Petitioner has concocted the story of cheating and fraud. He has further informed this Court that four days prior to the instant FIR being registered the Petitioner had written a complaint to SHO P.S. Naraina as she had allegedly sold her jewellery worth Rs. 50 lacs to the Complainant and one of the cheques that the Complainant had given to her had bounced on account of insufficient funds. Mr. Wadhwa has therefore argued that the instant FIR is merely a counterblast. The learned Counsel for the Petitioner submitted that no recovery has been made from the Petitioner and that the chargesheet has already been filed. He has argued that despite the FIR naming the Petitioner’s husband son and daughters multiple times the prosecution has exonerated them and this is indicative of the conspiracy that has been launched by the Petitioner’s husband and the Complainant to falsely implicate the Petitioner. Mr. Wadhwa has finally sought for bail for the Petitioner as the Petitioner has been behind the bars since May 2018 i.e. more than two years and that even if the Petitioner is convicted at best she will be sentenced to undergo maximum imprisonment for a period of seven years. Per contra Ms. Neelam Sharma learned APP for the State has BAIL APPLN. 2557 2018 vehemently opposed the instant bail application on the grounds that the Petitioner has played a crucial role in the commission of the offences alleged in the instant FIR. She has submitted that the investigation is not complete yet and the Petitioner is not cooperating with the investigating officers. Ms. Sharma has stated that the money that has been fraudulently procured has been deposited in bank accounts situated in Dubai and that the details of the same are yet to be revealed. The learned APP has argued that the Petitioner was also impersonating the sister of the King of Brunei and that the mobile phone SIM card used by the Petitioner for impersonation are yet to be 7. Mr. Kuldeep Gola learned Counsel for the Complainant has also made his submissions and stated that the Complainant has lost a substantial amount of money i.e. more than 2 crores rupees. He has submitted that the probability of the Petitioner absconding and threatening witnesses as well as tampering with evidence is high given the fact that the jewellery has not been recovered. Mr. Gola has brought to the notice of the Court that when the Petitioner was out on interim bail she had filed a false complaint against the Complainant that had eventually been quashed by this Court. He therefore has stated that there is a propensity of the Petitioner to exert pressure on the Complainant to withdraw the case. Heard Mr. R.K. Wadhwa learned Counsel for the Petitioner Ms. Neelam Sharma learned APP for the State and Mr. Kuldeep Gola learned Counsel for the Complainant and perused the material on record. A perusal of the chargesheet on record reveals that the Petitioner has not been cooperative in the investigation. A voice recording of the Petitioner was handed over by the husband and son of the Petitioner wherein the BAIL APPLN. 2557 2018 Petitioner was heard talking to one Preetpal Kalsi asking for the opening of a new bank account and confirming the money transferred to a foreign bank account. Further voice recordings have revealed that the Petitioner was knee deep in the conspiracy to cheat the Complainant and misappropriate the jewellery to keep the money all for themselves. It also states that the mother of the Petitioner had also registered a case against the Petitioner in which she had stated that the Petitioner had shown her the jewellery grabbed by cheating and had sought her help for selling it. The chargesheet further notes that there is no material to proceed against the husband son and daughters of the Petitioner as no proof evidence had been found against them. 10. The status reports filed by the State showcase that voice recordings which were subsequently proved by way of an FSL report which is a part of the supplementary chargesheet) had led to the conclusion that the Petitioner was planning to settle in Dubai or Brunei with the help of a Pakistani national namely Shahzeb and this plan had induced her to cheat the Complainant as she required money. Furthermore the Petitioner had travelled to Dubai on 02.06.2015 without informing her husband or the Complainant and had sold some of the jewellery and the gold coins. Additionally she had visited Dubai several times but no plausible reasons had been provided for the said visits. It is stated that interrogation of Preetpal Kalsi had also revealed that the Petitioner had been known to him for 2 3 years and they had hatched the plan together. It has also been revealed that no recovery has been effected till now and the Petitioner has resorted to filing of false and frivolous complaints to counter the case registered against her. 11. The Supreme Court has time and again laid down the parameters that BAIL APPLN. 2557 2018 must be taken into account by a Court while considering an application seeking grant of bail. The factors can be summarised as under: i. whether there is any prima facie or reasonable the accused had to believe committed the offence ii. nature and gravity of the accusation iii. severity of the punishment in the event of iv. danger of the accused absconding or fleeing if conviction released on bail v. character behaviour means position and standing of the accused vi. likelihood of the offence being repeated vii. reasonable apprehension of the witnesses being viii. danger of course of justice being thwarted by influenced and grant of bail. Refer Ram Govind Upadhyay v. Sudarshan Singh 3 SCC 598). 12. The material on record in the instant case does disclose that the Petitioner played a crucial role in the commission of the alleged offence and had masterminded the plan to cheat the Complainant out of more than two crores of rupees. Furthermore the plan hatched by the Petitioner and other co accused reveals that it involved methodical and intricate planning as can be discerned from the fact that the Petitioner purchased another SIM to impersonate the cousin sister of the King of Brunei. The Petitioner has also been uncooperative during the investigation and has also resorted to levelling allegations against the Complainant and her family members including her husband and her mother. BAIL APPLN. 2557 2018 13. However it is also pertinent to note that the Petitioner has been in custody since 07.05.2018 with the exception of her being out on interim bail from 14.05.2020 to 23.11.2021 on the ground of the HPC guidelines formulated by this Court in wake of the COVID 19 pandemic. There is weight in the submission of the learned Counsel of the Petitioner that even if she is convicted the Petitioner would be subjected to imprisonment for a maximum of seven years out of which she has already spent two years in custody. Even after four years investigation has not been completed. This Court is of the opinion that the Petitioner cannot be kept endlessly behind bars. When right to speedy trial is a concomitant of Article 21 of the Constitution of India it can be presumed that one the facets would also be that the accused cannot be kept in custody indefinitely. The Petitioner has already spent more than one fourth of the maximum period of imprisonment in custody. There is no allegation that the petitioner has cheated anybody else. The apprehension that the Petitioner will flee from justice can be dissipated by ensuring that appropriate conditions are imposed. Furthermore the possibility of the Petitioner threatening the Complainant her own family members and other witnesses can also be done away with by way of imposing conditions. 14. Vide Order dated 20.01.2022 this Court had granted custody parole two days i.e. 27.01.2022 and 28.01.2022 to accompany Investigating Officer so as to satisfy him about the address where the Petitioner intends to reside in case she is granted bail. Pursuant to this Order the status report has been filed which indicates that the Petitioner resides at B 75 Naraina Vihar Delhi where her family also resides. It is stated that the husband and the children of the Petitioner are disinclined to let the BAIL APPLN. 2557 2018 Petitioner stay at the aforementioned address however Order dated 01.08.2016 of the Ld. Trial Court states that the Petitioner cannot be dispossessed thrown out of the said house and cannot be stopped from entering the same. Accordingly a separate portion on the ground floor has been accorded to the Petitioner for living purposes where she previously stayed while she was out on interim bail. In light of the above this Court deems it fit to grant regular bail to the Petitioner herein subject to the following conditions: a. The Petitioner shall furnish a personal bond in the sum of ₹1 00 000 with two sureties of the like amount to the satisfaction of the Trial Court Duty Magistrate. b. The Petitioner is directed to surrender her passport before the Trial Court if not already surrendered. c. The Petitioner shall not leave NCT of Delhi without prior permission of this Court. d. The Petitioner shall report to the concerned Police Station every day at 10:30 AM and should be released after completing the formalities within an hour. e. The Petitioner is directed to drop a pin location on Google Maps so that the location of the Petitioner is available to the Investigating Officer at all times. f. The Petitioner is directed to give all her mobile numbers to the Investigating Officer and keep them operational at all times. g. The Petitioner has given her address as House No. B 75 Naraina Vihar Delhi. The Petitioner is directed to continue to reside at the same address. In case there is any change in the BAIL APPLN. 2557 2018 address the Petitioner is directed to intimate the same to the Investigating Officer. h. The Petitioner shall not directly or indirectly tamper with evidence or try to influence the witnesses. i. Violation of any of these conditions will result in the cancellation of the bail given to the petitioner. 16. This Court deems it necessary to note that if any instance of the Petitioner threatening her family members or the Complainant comes to light or if false cases are filed against the complainant or his family members by the petitioner or at her instance bail granted to the Petitioner by this Court would stand cancelled forthwith. 17. With the above observations the instant bail application is disposed of along with pending application(s) if any. 18. Let a copy of this Order be communicated to the concerned Jail FEBRUARY 08 2022 SUBRAMONIUM PRASAD J. BAIL APPLN. 2557 2018

Proddatur Digi Cable Services V/s Siti Cable Network Limited

The Arbitration Clause empowering the “Company‟ to appoint the Sole Arbitrator in the present case would be vitiated in the light of the law laid down by the Supreme Court in the case of Perkins. The present petition has been filed under Sections 14 and 15 of the Arbitration and Conciliation Act, 1996 seeking a declaration that the mandate of the Arbitrator appointed by the respondent be terminated and an Arbitrator be appointed by this Court in accordance with the provisions of the Act.The present petition arises out of a Distribution Agreement entered into between the parties on 03.08.2015. Clause 13 of the Agreement provides for resolution of the disputes between the parties by way of arbitrationCertain disputes arose between the petitioner and the respondent as to the amounts due to the petitioner during the subsistence of the Distribution Agreement. It is the petitioner’s case that all his efforts to amicably recover the amount from the respondent failed and upon which the petitioner invoked the Arbitration Clause, vide notice dated 29.10.2018. The petitioner nominated an advocate as his Arbitrator. The respondent replied to the notice on 28.11.2018 and disagreed with the name proposed by the petitioner. Placing reliance on clause 13.2 of the Agreement and claiming power to unilaterally nominate the Arbitrator, the respondent appointed Ms. Charu Ambwani as the Arbitrator.On 09.01.2019, the petitioner requested the Arbitrator vide a letter to enter upon reference and on 19.01.2019, the first procedural hearing was conducted. The petitioner avers that on 10.01.2019, the Arbitrator addressed a letter to the counsels for the parties seeking consent of the petitioner to her appointment alongwith a disclosure under Section 12 of the Act. The petitioner responded vide a letter dated 14.01.2019 declining consent to her appointment.The petitioner avers that through its counsel it sent an email dated 28.01.2019 to the Arbitrator pointing out that objections regarding procedure and jurisdiction would be raised in due course by the petitioner as per provisions of the Act. On 26.11.2019, the Supreme Court delivered its judgment in Perkins Eastman Architects DPC & Anr. vs. HSCC (India) Ltd. 2019 SCC Online SC 1517 in view of which the unilateral appointment of the Arbitrator by the respondent is vitiated under Section 12(5) of the Act.The petitioner avers that in view of the said judgment, the petitioner conveyed to the nominated Arbitrator not to proceed with the arbitration as her mandate stands terminated de jure. The Arbitrator vide an email dated 07.12.2019 communicated that she would continue with the proceeding unless there was a judicial order terminating her mandate. Hence the petitioner has filed the present petition. ISSUES BEFORE THE COURT:Whether unilateral appointment of an arbitrator by a party to the arbitration agreement is permissible?Whether there is a distinction between “Managing Director” and “Company” when the power of appointment of arbitrator is conferred? RATIO OF THE COURT:The contention of the counsel for the petitioner is that the case of the petitioner is squarely covered by the judgment in the case of Perkins Eastman Architects DPC & Anr. vs. HSCC (India) Ltd. 2019 SCC Online SC 1517 and Bharat Broadband Network Limited vs. United Telecoms Limited (2019) 5 SCC 755. He contends that it is undisputed that the respondent had unilaterally appointed the Arbitrator and thus the appointment is vitiated in terms of the above judgment.Learned counsel also submits that the arbitration clause envisages the appointment of a Sole Arbitrator by the “Company‟ i.e. the respondent herein. Moreover, the Supreme Court has clearly held that where only one party has a right to appoint a Sole Arbitrator, its choice will always have an element of exclusivity in determining the course of dispute resolution. Thus, the person who has an interest in the outcome or decision of the dispute must not have power to appoint a Sole Arbitrator.Learned counsel also contends that the applicability of de jure termination under Section 12(5) to on-going arbitrations has also been settled by the Supreme Court in the case of Bharat Broadband (supra).In the said case the issue had arisen in the context of applicability of the judgment of the Supreme Court in TRF Limited vs. Energo Projects Limited (2017) 8 SCC 377 to an on-going arbitration. The Supreme Court held that as soon as a clarificatory judgment is pronounced, Section 14 of the Act comes into play, automatically terminating the mandate de jure.On the other hand, learned counsel for the respondent contends that the autonomy of the parties to the choice of procedure as contained in an Arbitration Agreement is a foundation pillar of arbitration. Parties are at liberty to choose the procedure for arbitration including but not limited to the appointment of an arbitrator. Reliance is placed on the judgment of the Supreme Court in the case of Centrotrade Minerals & Metal Inc vs. Hindustan Copper Ltd. (2017) 2 SCC 228 and it is submitted that the judgment was delivered post the 2015 amendment to the Act. It is also argued that post the Amendment Act, 2015, a Coordinate Bench of this Court has upheld the right of a party to an Arbitration Agreement to appoint a Sole Arbitrator.It is next contended that under Section 7 of the Act, parties can decide on the procedure for appointment of the Arbitrator. The petitioner by executing the Distribution Agreement had on its free will and without coercion agreed for appointment of the Arbitrator as per the terms of clause 13. The respondent in appointing the Arbitrator has acted in terms of the agreement between the parties. It is also contended that right of one party to an arbitration agreement, to appoint a Sole Arbitrator has been in existence and has been upheld by the courts in various judgments.Learned counsel for the respondent contends that the petitioner had chosen not to file objections under Section 13 of the Act before the Arbitrator and participated in the proceedings. Therefore, the petitioner is deemed to have waived its objections under Section 12(5) of the Act. It is also argued that the Arbitration Agreement in the instant case was entered into on 30.08.2015, before the Amendment of Act, 2016 came into force and thus the judgment of Perkins (supra) will not apply to the present case.It is further contended by the respondent that 246th Law Commission Report deemed it fit not to recommend any change on the issue of appointment of an Arbitrator by one party to the agreement, on the ground that there has been a long practice to that effect. It is observed in the Report that the intention of Section 12(5) of the Act was not to prohibit unilateral appointment of an Arbitrator.Learned counsel seeks to distinguish the judgment of the Supreme Court in the case of Perkins (supra) on the ground that the facts of the present case are not the same. It is argued that the Arbitration clause examined by the Supreme Court was distinct from the clause in the instant matter. In the said case, the arbitration clause provided for the Managing Director of one party to appoint an Arbitrator, whereas in the instant case the “Company” has to appoint the Arbitrator.The Court held that the issue that arises for consideration before this Court is the eligibility of the “Company” referred to in the Arbitration Clause between the parties, to unilaterally appoint a Sole Arbitrator to adjudicate the disputes between the parties. Following the ratio of the judgment in the case of Perkins (supra), it is clear that a unilateral appointment by an authority which is interested in the outcome or decision of the dispute is impermissible in law. The Arbitration Clause in the present case empowers the company to appoint a Sole Arbitrator. It can hardly be disputed that the “Company‟ acting through its Board of Directors will have an interest in the outcome of the dispute. In the opinion of this Court, the clause is directly hit by the law laid down in the case of Perkins (supra) and the petition deserves to be allowed.The Court observed that the respondent is right in its contention that the autonomy of the parties to the choice of procedure is the foundational pillar of arbitration and that the petitioner had entered into the Distribution Agreement with the Arbitration Clause, out of its free will. Party autonomy is important but at the same time fairness, transparency and impartiality are virtues which are equally important. If the Authority appointing an Arbitrator is the Head or an employee of a party to the agreement then its interest in its outcome is only natural. It goes without saying that once such an Authority or a person appoints an Arbitrator, the same ineligibility would translate to the Arbitrator so appointed. The procedure laid down in the Arbitration Clause cannot be permitted to override considerations of impartiality and fairness in arbitration proceedings.Thus, in the present case, the Company is run by none other than the Directors collectively. Duties of the Directors have been stipulated in Section 166 of the Companies Act, 2013. A bare perusal of the duties clearly reveals that the Director at all times, has to act in good faith to promote the objects of the Company and in the best interest of the Company, its employees and the shareholders. A Director shall not involve in a situation in which he may have a direct or an indirect interest that conflicts or possibly may conflict with the interest of the Company. It goes without saying that the Directors of the Company as a part of the Board of the Directors would be interested in the outcome of the Arbitration proceedings.The Company therefore, acting through its Board of Directors would suffer the ineligibility under Section 12(5) read with Schedule VII of the Act. The same ineligibility would also apply to any person appointed by the said Company. Thus, in my view, for the purposes of Section 11(6) and Section 12(5) read with Schedule VII, there cannot be a distinction based on the appointing authority being a Company.Concluding, the relevant date to decide the applicability of Section 12(5) is not the date of the agreement but the date on which the Arbitration commences. By virtue of Section 21 of the Act, the Arbitration commences when the notice invoking arbitration is sent. In the present case, the notice invoking the arbitration agreement was sent by the petitioner on 28.10.2018, which is after the insertion of Section 12(5) of the Act by the Amendment Act, 2016. Thus, there is no doubt that Section 12(5) would apply to the present case and the Company is debarred in law from appointing the Arbitrator.However, the Arbitration Clause wherein one party was to draw up a panel of Arbitrators from which the other party was to choose is permissible as per Voestalpine Schienen GMBH vs. Delhi Metro Rail Corporation Limited (2017) 4 SCC 665. DECISION HELD BY COURT:In my view, none of the contentions raised by the respondent can be sustained.(supra).As a corollary to that, the ineligibility of the Company would translate and percolate to the Arbitrator appointed by the Company and thus the Arbitrator presently conducting the arbitration proceedings is declared to be ineligible to act as an Arbitrator.Since the present Arbitrator has become de jure unable to perform her functions as an Arbitrator, I hereby terminate the mandate of the present Arbitrator and substitute by another Arbitrator.Mr. Justice Mukul Mudgal, former Judge of this Court, is appointed as a Sole Arbitrator to adjudicate the disputes between the parties.The learned Arbitrator shall give disclosure under Section 12 of the Act before entering upon reference.Fee of the Arbitrator shall be fixed as per Fourth Schedule of the Act.The petition is allowed in the aforesaid terms. All pending applications are accordingly disposed of.

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 18.12.2019 Date of Judgment: 20 .01.2020 O.M.P.(COMM.) 109 2019 and I.A. 17896 2019 PRODDATUR CABLE TV DIGI SERVICES ..... Petitioner Through Mr. R.V. Yogesh Ms. Sindoora and Ms. Snigdha Singh Advocates. SITI CABLE NETWORK LIMITED ..... Respondent Through Ms. Ritwika Nanda Ms. Petal Chandhok and Mr. Abhishek Bose Advocates. HON BLE MS. JUSTICE JYOTI SINGH JYOTI SINGH J. The present petition has been filed under Sections 14 and 15 of the Arbitration and Conciliation Act 1996seeking a declaration that the mandate of the Arbitrator appointed by the respondent be terminated and an Arbitrator be appointed by this Court in accordance with the provisions of the Act. The present petition arises out of a Distribution Agreement entered into between the parties on 03.08.2015. Clause 13 of the Agreement provides for resolution of the disputes between the parties by way of arbitration. Certain disputes arose between the petitioner and the respondent as to the amounts due to the petitioner during the subsistence of the Distribution Agreement. It is the petitioner‟s case that all his efforts to OMP(COMM) 109 2019 amicably recover the amount from the respondent failed and upon which the petitioner invoked the Arbitration Clause vide notice dated 29.10.2018. The petitioner nominated an advocate as his Arbitrator. The respondent replied to the notice on 28.11.2018 and disagreed with the name proposed by the petitioner. Placing reliance on clause 13.2 of the Agreement and claiming power to unilaterally nominate the Arbitrator the respondent appointed Ms. Charu Ambwani as the Arbitrator. On 09.01.2019 the petitioner requested the Arbitrator vide a letter to enter upon reference and on 19.01.2019 the first procedural hearing was conducted. The petitioner avers that on 10.01.2019 the Arbitrator addressed a letter to the counsels for the parties seeking consent of the petitioner to her appointment alongwith a disclosure under Section 12 of the Act. The petitioner responded vide a letter dated 14.01.2019 declining consent to her appointment. The petitioner avers that through its counsel it sent an email dated 28.01.2019 to the Arbitrator pointing out that objections regarding procedure and jurisdiction would be raised in due course by the petitioner as per provisions of the Act. On 26.11.2019 the Supreme Court delivered its judgment in Perkins Eastman Architects DPC & Anr. vs. HSCC Ltd. 2019 SCC Online SC 1517 in view of which the unilateral appointment of the Arbitrator by the respondent is vitiated under Section 12(5) of the Act. The petitioner avers that in view of the said judgment the petitioner conveyed to the nominated Arbitrator not to proceed with the arbitration as her mandate stands terminated de jure. The OMP(COMM) 109 2019 petition. Arbitrator vide an email dated 07.12.2019 communicated that she would continue with the proceeding unless there was a judicial order terminating her mandate. Hence the petitioner has filed the present Both parties have been heard at length and have filed written submissions elaborating the arguments made. The contention of the counsel for the petitioner is that the case of the petitioner is squarely covered by the judgment in the case of Perkinsand Bharat Broadband Network Limited vs. United Telecoms Limited 5 SCC 755. He contends that it is the respondent had unilaterally appointed Arbitrator and thus the appointment is vitiated in terms of the above judgment. Learned counsel has relied on the following paragraph of the judgment in the case of Perkins(COMM) 109 2019 the second category of cases. If the interest that he has in the outcome of the dispute is taken to be the basis for the possibility of bias it will always be present irrespective the first or second category of cases. We are conscious that if such deduction is drawn from the decision of this Court in TRF Limited all cases having clauses similar to that with which we are presently concerned a party to the agreement would be disentitled to make any appointment of an Arbitrator on its own and it would always be available to argue that a party or an official or an authority having interest in the dispute would be disentitled to make appointment of an Arbitrator. 21. But in our view that has to be the logical deduction from TRF Limited. Paragraph 50 of the decision shows that this Court was concerned with the issue “whether the Managing Director after becoming ineligible by operation of law is he still eligible to nominate an Arbitrator” The ineligibility referred to therein was as a result of operation of law in that a person having an interest in the dispute or in the outcome or decision thereof must not only be ineligible to act as an arbitrator but must also not be eligible to appoint anyone else as an arbitrator and that such person cannot and should not have any role in charting out any course to the dispute resolution by having the power to appoint an arbitrator. The next sentences in the paragraph further show that cases where both the parties could nominate respective arbitrators of their choice were found to be completely a different situation. The reason is clear that whatever advantage a party may derive by nominating an arbitrator of its choice would get counter balanced by equal power with the other party. But in a case where only one party has a right to appoint a sole OMP(COMM) 109 2019 arbitrator its choice will always have an element of exclusivity in determining or charting the course for dispute resolution. Naturally the person who has an interest in the outcome or decision of the dispute must not have the power to appoint a sole arbitrator. That has to be taken as the essence of the amendments brought in by the Arbitration and Conciliation Act 2015 and recognised by the decision of this Court in TRF Limited” Counsel has also drawn the attention of the Court to the Arbitration Clause between the parties which reads as under : “13. PROPER LAW JURISDICTION AND DISPUTE RESOLUTION 13.1 This Agreement shall be construed and the legal relations between the Parties hereto shall be determined and governed according to the laws of India and the Courts of Delhi shall have sole jurisdiction. No other court shall have jurisdiction in this regard. 13.2 All disputes or differences whatsoever which shall at any time hereafter arise between the parties hereto or their respective successors in title and assigns touching or concerning this Agreement or its interpretation or effect or as to the rights duties responsibilities and liabilities of the parties or either of them under or by virtue of this Agreement or otherwise as to any other matter in any way connected with arising out of or in relation to the subject matter of this Agreement shall at first be subjected to an attempt at resolution by mutual amicable discussion failing which the same shall be referred for Arbitration by the sole arbitrator appointed by the Company within thirty days of the invocation of the arbitration under the provisions of the Arbitration and Conciliation Act 1996 read with OMP(COMM) 109 2019 rules made thereunder. The award shall be rendered in English Language and shall be final and binding between Parties. The venue of the arbitration shall be Delhi and the arbitration proceedings shall be English.” the conduct of 10. Learned counsel submits that the arbitration clause envisages the appointment of a Sole Arbitrator by the „Company‟ i.e. the respondent herein. The clause is thus hit by the ratio of the judgment in Perkins wherein the Supreme Court has clearly held that where only one party has a right to appoint a Sole Arbitrator its choice will always have an element of exclusivity in determining the course of dispute resolution. Thus the person who has an interest in the outcome or decision of the dispute must not have power to appoint a Sole Arbitrator. 11. Learned counsel also contends that the applicability of de jure termination under Section 12(5) to on going arbitrations has also been settled by the Supreme Court in the case of Bharat Broadband supra). In the said case the issue had arisen in the context of applicability of the judgment of the Supreme Court in TRF Limited vs. Energo Projects Limited 8 SCC 377 to an on going arbitration. The Supreme Court held that as soon as a clarificatory judgment is pronounced Section 14 of the Act comes into play automatically terminating the mandate de jure. Relevant part of the judgment in the case of Bharat Broadbandis as under : “18. On the facts of the present case it is clear that the Managing Director of the appellant could not have acted as an arbitrator himself being rendered ineligible to act OMP(COMM) 109 2019 as arbitrator under Item 5 of the Seventh Schedule which reads as under: “Arbitrator s relationship with the parties or counsel 5. The arbitrator is a manager director or part of the management or has a similar controlling influence in an affiliate of one of the parties if the affiliate is directly involved in the matters in dispute in the Whether such ineligible person could himself appoint another arbitrator was only made clear by this Court s in TRF Ltd.8 SCC 377 : 4 SCC 72] on 3 7 2017 this Court holding that an appointment made by an ineligible person is itself void ab initio. Thus it was only on 3 7 2017 that it became clear beyond doubt that the appointment of Shri Khan would be void ab initio. Since such appointment goes to “eligibility” i.e. to the root of the matter it is obvious that Shri Khan s appointment would be void. There is no doubt in this case that disputes arose only after the introduction of Section 12(5) into the statute book and Shri Khan was appointed long after 23 10 2015. The judgment in TRF Ltd.8 SCC 377 : 2017) 4 SCC72] nowhere states that it will apply only prospectively i.e. the appointments that have been made of persons such as Shri Khan would be valid if made before the date of the judgment. Section 26 of the Amendment Act 2015 makes it clear that the Amendment Act 2015 shall apply in relation to arbitral proceedings commenced on or after 23 10 2015. Indeed the judgment itself set aside the order appointing the arbitrator which was an order dated 27 1 2016 by which the Managing Director of the respondent nominated a former Judge of OMP(COMM) 109 2019 this Court as sole arbitrator in terms of Clause 33(d) of the purchase order dated 10 5 2014. It will be noticed that the facts in the present case are somewhat similar. The APO itself is of the year 2014 whereas the appointment by the Managing Director is after the Amendment Act 2015 in TRF Ltd.8 SCC 377 : 2017) 4 SCC in TRF Ltd.8 SCC 377 : 4 SCC 72] of a retired Judge of this Court was set aside as being non est in law the appointment of Shri Khan in the present case must follow suit. Civ) 72] Considering just as 19. However the learned Senior Advocate appearing on behalf of the respondent has argued that Section 12(4) would bar the appellant s application before the Court. Section 12(4) will only apply when a challenge is made to an arbitrator inter alia by the same party who has appointed such arbitrator. This then refers to the challenge procedure set out in Section 13 of the Act. Section 12(4) has no applicability to an application made to the Court under Section 14(2) to determine whether the mandate of an arbitrator has terminated as he has in law become unable to perform his functions because he is ineligible to be appointed as such under Section 12(5) of the Act. 20. This then brings us to the applicability of the proviso to Section 12(5) on the facts of this case. Unlike Section 4 of the Act which deals with deemed waiver of the right to object by conduct the proviso to Section 12(5) will only apply if subsequent to disputes having arisen between the parties the parties waive the applicability of sub section 5) of Section 12 by an express agreement in writing. For this reason the argument based on the analogy of Section 7 of the Act must also be rejected. Section 7 deals with arbitration agreements that must be in writing and then explains that such agreements may be contained in OMP(COMM) 109 2019 documents which provide a record of such agreements. On the other hand Section 12(5) refers to an “express in writing”. The expression “express agreement in writing” refers to an agreement made in words as opposed to an agreement which is to be inferred by conduct. Here Section 9 of the Contract Act 1872 becomes important. It states: “9. Promises express and implied.—Insofar as the proposal or acceptance of any promise is made in words the promise is said to be express. Insofar as such proposal or acceptance is made otherwise than in words the promise is said to be implied.” It is thus necessary that there be an “express” agreement in writing. This agreement must be an agreement by which both parties with full knowledge of the fact that Shri Khan is ineligible to be appointed as an arbitrator still go ahead and say that they have full faith and confidence in him to continue as such. The facts of the present case disclose no such express agreement. The appointment letter which is relied upon by the High Court as indicating an express agreement on the facts of the case is dated 17 1 2017. On this date the Managing Director of the appellant was certainly not aware that Shri Khan could not be appointed by him as Section 12(5) read with the Seventh Schedule only went to the invalidity of the appointment of the Managing Director himself as an arbitrator. Shri Khan s invalid appointment only became clear after the declaration of the law by the Supreme Court in TRF Ltd.8 SCC 377 : 4 SCC 72] which as we have seen hereinabove was only on 3 7 2017. After this date far from there being an express agreement between the parties as to the validity of Shri Khan s appointment the appellant filed an application on 7 10 2017 before the sole arbitrator bringing the arbitrator s attention to the judgment in TRF Ltd.8 SCC 377 : 2017) 4 SCC72] and asking him to declare that he OMP(COMM) 109 2019 has become de jure incapable of acting as an arbitrator. Equally the fact that a statement of claim may have been filed before the arbitrator would not mean that there is an express agreement in words which would make it clear that both parties wish Shri Khan to continue as arbitrator despite being ineligible to act as such. This being the case the impugned judgment is not correct when it applies Section 4 Section 7 Section 12(4) Section 13(2) and Section 16(2) of the Act to the facts of the present case and goes on to state that the appellant cannot be allowed to raise the issue of eligibility of an arbitrator having itself appointed the arbitrator. The judgment under appeal is also incorrect in stating that there is an express waiver in writing from the fact that an appointment letter has been issued by the appellant and a statement of claim has been filed by the respondent before the arbitrator. The moment the appellant came to know that Shri Khan s appointment itself would be invalid it filed an application before the sole arbitrator for termination of his mandate.” 12. Per contra learned counsel for the respondent contends that the autonomy of the parties to the choice of procedure as contained in an Arbitration Agreement is a foundation pillar of arbitration. Parties are at liberty to choose the procedure for arbitration including but not limited to the appointment of an arbitrator. Reliance is placed on the judgment of the Supreme Court in the case of Centrotrade Minerals Metal Inc vs. Hindustan Copper Ltd.2 SCC 228 and it is submitted that the judgment was delivered post the 2015 amendment to the Act. It is next contended that under Section 7 of the Act parties can decide on the procedure for appointment of the Arbitrator. The OMP(COMM) 109 2019 petitioner by executing the Distribution Agreement had on its free will and without coercion agreed for appointment of the Arbitrator as per the terms of clause 13. The respondent in appointing the Arbitrator has acted in terms of the agreement between the parties. It is also contended that right of one party to an arbitration agreement to appoint a Sole Arbitrator has been in existence and has been upheld by the courts in various judgments. Reliance is placed on the judgments in the case of Indian Drugs & Pharmaceuticals Ltd. vs. Indo Swiss Synthetics Gem Manufacturing Ltd.1 SCC 54 and Yashwith Construction Pvt. Ltd. vs. Simplex Concrete Piles India Ltd.6 SCC 204. It is also argued that post the Amendment Act 2015 a Co ordinate Bench of this Court has upheld the right of a party to an Arbitration Agreement to appoint a Sole Arbitrator. Reference has been made to the judgments in OMP(T)(COMM) 106 2017 titled D.K. Gupta & Anr. vs. Renu Munjal OMP(T)(COMM) 101 2017 titled Bhayana Builders Pvt. Ltd. vs. Oriental Structural Engineers Pvt. Ltd. Arb. Pet. 485 2019 titled Kadimi International Pvt. Ltd. vs. Emaar MGF Land Limited and OMP 18 2017 titled Gammon India Ltd. vs. Ambience Private Ltd. 14. Learned counsel for the respondent contends that the petitioner had chosen not to file objections under Section 13 of the Act before the Arbitrator and participated in the proceedings. Therefore the petitioner is deemed to have waived its objections under Section 12(5) of the Act. It is also argued that the Arbitration Agreement in the instant case was entered into on 30.08.2015 before the Amendment OMP(COMM) 109 2019 Act 2016 came into force and thus the judgment of Perkinswill not apply to the present case. It is further contended by the respondent that 246th Law Commission Report deemed it fit not to recommend any change on the issue of appointment of an Arbitrator by one party to the agreement on the ground that there has been a long practice to that effect. It is observed in the Report that the intention of Section 12(5) of the Act was not to prohibit unilateral appointment of an Arbitrator. 16. Learned counsel seeks to distinguish the judgment of the Supreme Court in the case of Perkinson the ground that the facts of the present case are not the same as in the case of Perkins supra). It is argued that the Arbitration clause examined by the Supreme Court was distinct from the clause in the instant matter. In the said case the arbitration clause provided for the Managing Director of one party to appoint an Arbitrator whereas in the instant case the “Company” has to appoint the Arbitrator. There is a distinction between a Managing Director and Company acting through its Board of Directors. The judgment in Perkins seeks to eliminate the purported evil of partiality and bias associated with the appointment of an Arbitrator by the Managing Director when tested on the anvil of Section 12(5) of the Act. The judgment has relied on the principle laid down by the Supreme Court in the earlier case of TRF Limited which has a different connotation. However in Voestalpine Schienen GMBH vs. Delhi Metro Rail Corporation Limited4 SCC 665 the Supreme Court has distinctly detailed the persons rendered ineligible to act as an Arbitrator under Section OMP(COMM) 109 2019 12(5) of the Act. It is argued that though a Managing Director of a Company was held to be ineligible the same test cannot be applied to a Board of Directors of a Company who is authorized by the MOA and AOA of the Company to run the Company. Thus the judgment in the case of Perkins relied upon by the petitioner would not apply to the instant case. Moreover it is argued that the Supreme in Civil Appeal Nos. 9486 9487 2019 titled Central Organization for Railway Electrification vs. M s. ECI SPCI SMO MCMLa Joint Venture Company has upheld the appointment of a Sole Arbitrator by one party from a panel of arbitrators nominated by the other party. It is thus prayed that the petition be dismissed and the Arbitrator appointed by the respondent be permitted to continue with the arbitration proceedings. 17. Learned counsel for the petitioner in rejoinder responding to the arguments of the respondent contends that there was no requirement for the petitioner to file objections under Section 13 of the Act. It is settled that the objections under Section 12 read with Section 13 of the Act are different from objections under Section 12(5) read with Section 14 of the Act. Objections under Section 13 of the Act have no relevance to the objections under Section 12of the Act. Therefore it cannot be said that by not filing objections before the Arbitral Tribunal under Section 13 of the Act the petitioner has waived its objections under Section 12(5) of the Act. 18. Learned counsel for the petitioner submits that the argument of the respondent that the arbitration agreement between the parties was entered into on 30.08.2015 before the Amendment Act of 2016 and OMP(COMM) 109 2019 therefore the judgment of Perkinswill not apply is incorrect. Section 12(5) starts with a non obstante clause and moreover the date to decide the applicability of Section 12(5) of the Act is not the date of agreement but the date on which the disputes arise and the arbitration commences under Section 21 of the Act. In the present case the arbitration commenced on 28.10.2018 when the notice invoking arbitration was issued. 19. The petitioner contends that the judgments relied upon by the respondent on unilateral appointment are no longer good law in view of the judgment of the Apex Court in the case of Perkins on the ground that the present Arbitration Clause enables a “Company” to appoint an Arbitrator unlike the clause in the case of Perkins where it was the Managing Director who had the authority to appoint the Arbitrator. He submits that the underlying principle is that no authority having interest in the dispute would be entitled to make an appointment. It is argued that be it a party as an individual or Board of Directors or a Company no distinction can be drawn applying the principle laid down in the case of Perkins(COMM) 109 2019 The issue that arises for consideration before this Court is the eligibility of the “Company” referred to in the Arbitration Clause between the parties to unilaterally appoint a Sole Arbitrator to adjudicate the disputes between the parties. The principle contention of the petitioner is that in view of the recent judgment of the Supreme Court in the case of Perkins the „Company‟ as provided in the Arbitration Clause between the parties herein cannot unilaterally appoint an Arbitrator. This Court finds merit in the contention of the petitioner. Supreme court in the case of Perkins was concerned with an Arbitration Clause wherein the CMD of the respondent was designated to appoint a Sole Arbitrator. Supreme Court after examining the said clause held that there could be two categories of cases one where the Managing Director himself is made as an Arbitrator with an additional power to appoint any other person as an Arbitrator and the second where the Managing Director is not to act as an Arbitrator himself but is empowered to appoint any other person of his choice or discretion as an Arbitrator. Reliance was placed on the judgment of the Supreme Court in the case of TRF Limited in which case the Arbitration Clause fell in the first category. In the case of TRF Limitedthe Court had held that the Managing Director was incompetent because of the interest that he would have in the outcome of the dispute. The element of ineligibility was relatable to the interest that he had in the decision. The Supreme Court thus relying on the rationale of the decision in TRF Limited supra) observed that if the test is the interest of the Appointing Authority in the outcome of the dispute then similar ineligibility OMP(COMM) 109 2019 would always arise even in the second category of cases. It was observed that if the interest that the authority has in the outcome of the dispute is taken to be the basis for possibility of bias it will always be present irrespective of whether the matter stands under the first or the second category of cases. The Supreme Court also significantly noted that they were conscious that if such a deduction was drawn from the decision in TRF Limited in all cases with similar clauses a party to the agreement would be disentitled to make a unilateral appointment. 23. Thus following the ratio of the judgment in the case of Perkins supra) it is clear that a unilateral appointment by an authority which is interested in the outcome or decision of the dispute is impermissible in law. The Arbitration Clause in the present case empowers the company to appoint a Sole Arbitrator. It can hardly be disputed that the „Company‟ acting through its Board of Directors will have an interest in the outcome of the dispute. In the opinion of this Court the clause is directly hit by the law laid down in the case of Perkins supra) and the petition deserves to be allowed. 24. The respondent is right in its contention that the autonomy of the parties to the choice of procedure is the foundational pillar of arbitration and that the petitioner had entered into the Distribution Agreement with the Arbitration Clause out of its free will. The facts in the case of Perkins were similar where the parties had entered into an agreement in which there was a clause for Dispute Resolution and which empowered the CMD to appoint the Sole Arbitrator. Despite the parties having agreed upon such an Arbitration OMP(COMM) 109 2019 Clause the Supreme Court held that the CMD suffered from the disability of appointing the Arbitrator as he was interested in the outcome of the dispute. The underlying principle in arbitration no doubt is party autonomy but at the same time fairness transparency and impartiality are virtues which are equally important. If the Authority appointing an Arbitrator is the Head or an employee of a party to the agreement then its interest in its outcome is only natural. It goes without saying that once such an Authority or a person appoints an Arbitrator the same ineligibility would translate to the Arbitrator so appointed. The procedure laid down in the Arbitration Clause cannot be permitted to override considerations of impartiality and fairness in arbitration proceedings. Insofar as the reliance by the respondent on the judgments permitting unilateral appointment by the Authority designate of one party to the agreement is concerned in my view the same will have no relevance in view of the judgment of the Supreme Court in the case of Perkins (COMM) 109 2019 bias and partiality. As a natural corollary if the Managing Director suffers this disability even if he was to appoint another person as an Arbitrator the thread of biasness partiality and interest in the outcome of the dispute would continue to run. Seen in this light it can hardly be argued that the judgment in Perkins will not apply only because the designated Authority empowered to appoint an Arbitrator is other than a Managing Director. Moreover as brought out by the respondent itself Company here is run by the Board of Directors. The „Board of Directors‟ is defined in Section 2(10) of the Companies Act 2013 as under: “2(10) “Board of Directors” or “Board” in relation to a company means the collective body of the directors of the Thus the Company is run none other than the Directors collectively. Duties of the Directors have been stipulated in Section 166 of the Companies Act 2013. A bare perusal of the duties clearly reveals that the Director at all times has to act in good faith to promote the objects of the Company and in the best interest of the Company its employees and the shareholders. A Director shall not involve in a situation in which he may have a direct or an indirect interest that conflicts or possibly may conflict with the interest of the Company. It goes without saying that the Directors of the Company as a part of the Board of the Directors would be interested in the outcome of the Arbitration proceedings. The Company therefore acting through its Board of Directors would suffer the ineligibility under Section 12(5) read with Schedule VII of the Act. The same ineligibility would also OMP(COMM) 109 2019 apply to any person appointed by the said Company. Thus in my view for the purposes of Section 11(6) and Section 12(5) read with Schedule VII there cannot be a distinction based on the appointing authority being a Company. Insofar as the argument of applicability of the judgment in Perkinscase to on going arbitration proceedings is concerned the Supreme Court in the case of Bharat Broadband has already decided the said issue. Relevant paras of the judgment in the case of Bharat Broadbandhave been extracted above. Thus following the ratio of said judgment once the Supreme Court has laid down the law under Section 12of the Act Section 14 of the Act gets attracted and the mandate of the Arbitrator is terminated de jure. 27. The respondent is not right in its contention that only because the arbitration agreement was entered into on 30.08.2015 i.e. before the coming into force of the Amendment Act 2016 the judgment of Perkinsand Section 12(5) of the Act would not apply. First and foremost Section 12(5) of the Act itself begins with a non obstante clause stipulating that Section 12(5) would apply notwithstanding any prior agreement to the contrary. Secondly the relevant date to decide the applicability of Section 12(5) is not the date of the agreement but the date on which the Arbitration commences. By virtue of Section 21 of the Act the Arbitration commences when the notice invoking arbitration is sent. In the present case the notice invoking the arbitration agreement was sent by the petitioner on 28.10.2018 which is after the insertion of Section 12(5) of the Act by OMP(COMM) 109 2019 the Amendment Act 2016. Thus there is no doubt that Section 12(5) would apply to the present case and the Company is debarred in law from appointing the Arbitrator. I am fortified in my view by the judgment of the Supreme Court in the case of Board of Control for Cricket in India vs. Kochi Cricket Private Limited & Ors. 6 SCC 287 the relevant paras of which read as under: “39. Section 26 therefore bifurcates proceedings as has been stated above with a great degree of clarity into two sets of proceedings — arbitral proceedings themselves and court proceedings in relation thereto. The reason why the first part of Section 26 is couched in negative form is only to state that the Amendment Act will apply even to arbitral proceedings commenced before the amendment if parties otherwise agree. If the first part of Section 26 were couched in positive language like the second part) it would have been necessary to add a proviso stating that the Amendment Act would apply even to arbitral proceedings commenced before the amendment if the parties agree. In either case the intention of the legislature remains the same the negative form conveying exactly what could have been stated positively with the necessary proviso. Obviously “arbitral proceedings” having been subsumed in the first part cannot re appear in the second part and the expression “in relation to arbitral proceedings” would therefore apply only to court proceedings which relate to the arbitral proceedings. The scheme of Section 26 is thus clear: that the Amendment Act is prospective in nature and will apply to those arbitral proceedings that are commenced as understood by Section 21 of the principal Act on or after the Amendment Act and to OMP(COMM) 109 2019 court proceedings which have commenced on or after the Amendment Act came into force.” 28. The respondent has also sought rejection of the petition in view of the judgment of the Supreme Court in the case of Voestalpine supra). In my view the said judgment would not help the respondent for more than one reason. The Arbitration Clause in the said case was completely different from the present case as therein the party was to draw up a panel of Arbitrators from which the other party was to choose. It was not a case of unilateral appointment by one party to the agreement. Secondly the Supreme Court in the case of Perkins supra) has taken note of the said judgment. The Supreme Court in the case of Voestalpine in fact emphasized on independence and impartiality of the Arbitrator as being hallmarks of any arbitration proceedings. The Court held that notwithstanding the fact that relationships between the parties arise out of the contract non impartiality of the Arbitrator would render him ineligible to conduct the arbitration. The genesis behind the rationale is that even when the Arbitrator is appointed under the Contract and by the parties thereto he is independent of the parties. Functions and duties require him to rise above the partisan interest of the parties and not to further the interest of any particular party. Having relied on some passages from this judgment the Supreme Court in fact noted in the case of Perkinsthat the decision in Voestalpinecase has only imperative of creating healthy OMP(COMM) 109 2019 respondent. environment. Thus in my view the said judgment in no way helps the 29. Lastly the reliance of the respondent on the judgment of the Supreme Court in the case of Central Organisationis also of no avail to the respondent. In the said case the Supreme Court was dealing with an arbitration clause which required a panel of Arbitrators to be provided by the Railways to the other party to the contract in terms of clause 64.3(a)(ii) of the GCC. The Court held that since one party was to provide a panel and the other party had the choice to short list the Arbitrator of its choice from the panel and only from the shortlisted names Railways was bound to appoint at least one Arbitrator to constitute the Arbitral Tribunal the parties had a level playing field. The Arbitrator appointed by the Railways of its choice was balanced by the second Arbitrator being of the choice of the other party. Thus the elements of fairness transparency and impartiality were taken care of. In my view none of the contentions raised by the respondent can be sustained. 31. The Arbitration Clause empowering the „Company‟ to appoint the Sole Arbitrator in the present case would be vitiated in the light of the law laid down by the Supreme Court in the case of Perkins supra). As a corollary to that the ineligibility of the Company would translate and percolate to the Arbitrator appointed by the Company the Arbitrator presently conducting the arbitration proceedings is declared to be ineligible to act as an Arbitrator. OMP(COMM) 109 2019 32. Since the present Arbitrator has become de jure unable to perform her functions as an Arbitrator I hereby terminate the mandate of the present Arbitrator and substitute by another Arbitrator. 33. Mr. Justice Mukul Mudgal former Judge of this Court is appointed as a Sole Arbitrator to adjudicate the disputes between the parties. 34. The address of the learned Arbitrator is as under: Mr. Justice Mukul Mudgal A 1 2nd floor Nizamuddin East New Delhi 110013 Mobile: 9818000250 35. The learned Arbitrator shall give disclosure under Section 12 of the Act before entering upon reference. 36. Fee of the Arbitrator shall be fixed as per Fourth Schedule of the Act. 37. The petition is allowed in the aforesaid terms. All pending applications are accordingly disposed of. JYOTI SINGH J JANUARY 20 2020 OMP(COMM) 109 2019

Shyamlal Devda and Ors. V/s Parimala

Petition under the Domestic Violence Act can be filed in a court where the “person aggrieved” permanently or temporarily resides or carries on business or is employed. [Case Brief] Shyamlal Devda and Ors. V/s Parimala Case name: Shyamlal Devda and Ors. V/s Parimala Case number: CRIMINAL APPEAL NO. 141 OF 2020 Court: Supreme Court of India Bench: Justice R Bhanumathi Justice A S Bopanna Justice Hrishikesh Roy Decided on: JANUARY 22, 2020 Relevant Act/Sections: Hindu Marriage Act, Protection of Women from the Domestic Violence Act, 2005   The respondent/wife and appellant no. 14/husband were married on 05.2006 in Chennai according to the Hindu rites and Rajasthani customs and stayed in their matrimonial house in Chennai along with appellant 1 and 2/parents of appellant 14.In 2014, the appellant no.14 and the respondent went to Bengaluru to attend respondent’s sister’s wedding where the respondent expressed her wish to stay in Bengaluru which was agreed to by the appellant no.14.Then according to the appellant no.14, the respondent refused to join their matrimonial house or cohabit. The respondent no. 14 filed an O.P. No.11355 of 2015 for restitution of conjugal rights u/s 9 of Hindu Marriage Act, 1955 before the family court at Chennai.The respondent claiming herself to be a victim of domestic violence filed Crl. Misc. No.53 of 2015 before the Court of Metropolitan Magistrate at Bengaluru u/s 18, 19 and 20 for protection order, residence order and monitory relief respectively against respondent no.1, 2, 14 and other relatives of respondent no.14 who reside in Chennai, Rajasthan and Gujrat.The Magistrate at Bengaluru issued notice via order dated 04.2015 of having jurisdiction u/s 27 of the Domestic Violence Act, 2005. Aggrieved by the said notice, the respondentno.14 filed petition under Section 482 Cr.P.C. before the High Court seeking quashing of the entire proceedings in Crl. Misc. No.53 of 2015.The High Court dismissed the above-mentioned petition on the ground that the appellant had filed instances of domestic violence at various places i.e Chennai, Rajasthan and Gujarat and hence the Additional Magistrate at Bengaluru has the jurisdiction u/s 27 of the Domestic Violence Act, 2005.Aggrieved by the decision of the High Court, the appellant filed the present petition before the Hon’ble Supreme Court.   ISSUE BEFORE THE COURT: Whether there exists a prima facie case of domestic violence against respondents 3 to 13?Whether Additional Metropolitan Magistrate at Bengaluru has the jurisdiction to decide the matter under section 27 of the Domestic Violence Act, 2005?Whether the Criminal Appeal Misc. No. 53 of 2015, a valid appeal?   RATIO OF THE COURT The court examined the statements made by the appellant that respondent with the view to harass the appellant no.14, 1 and 2 and other family members who reside in Rajasthan and Gujarat to the appellant, has made vague allegations which is an abuse of the process of the court, held that with regards to appellant no. 14, 1 and 2 specific averments alleging domestic violence and that they have taken away the jewellery of the respondent gifted to her by her father during marriage and the alleged acts of harassment were made by the respondent. But no specific allegations as to how other relatives of appellant No.14 who reside in Rajasthan and Gujarat have caused the acts of domestic violence.The court also stated that it is not know as to how other relatives who are residents of Gujarat and Rajasthan can be held responsible for award of monetary relief to the respondent. Since there were no specific facts showing how the relative were responsible, there cannot exists a prima facie case against appellant 3 to 13.With respect to the jurisdiction of the Additional Magistrate at Bengaluru, the court criticized the appellant’s contention that that neither the marriage of the parties was solemnized at Bengaluru nor the matrimonial house was at Bengaluru and therefore, the Magistrate Court at Bengaluru has no jurisdiction to entertain the petition. The court on examining section 27 said that on plain reading of the section, it can be seen that a petition can be filed where the “person aggrieved” permanently or temporarily resides or carries on business or is employed. In the present case, the respondent was residing at her parent’s place in Bengaluru which was within the jurisdiction of Additional Magistrate at Bengaluru and hence he can take cognizance of the matter.   DECISION HELD BY COURT:Misc. No.53 of 2015 filed against the appellants No.3 to 13 is quashed and this appeal is partly allowed.Additional Metropolitan Magistrate at Bengaluru shall proceed with Crl. Misc. No.53 of 2015 against appellants No.1, 2 and 14 and dispose the same in accordance with law. Misc. No.53 of 2015 filed against the appellants No.3 to 13 is quashed and this appeal is partly allowed.Additional Metropolitan Magistrate at Bengaluru shall proceed with Crl. Misc. No.53 of 2015 against appellants No.1, 2 and 14 and dispose the same in accordance with law.  

IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 141 OF 2020 Arising out of SLP(Crl.) No.49719 SHYAMLAL DEVDA AND OTHERS …..Appellants …..Respondent JUDGMENT R. BANUMATHI J This appeal arises out of the impugned judgment dated 18.02.2019 passed by the High Court of Karnataka at Bengaluru in Criminal Petition No.59515 in and by which the High Court has dismissed the petition filed by the appellants stating that the Metropolitan Magistrate Bengaluru has the jurisdiction to entertain the complaint filed by the respondent under Sections 18 19 and 20 of the Protection of Women from Domestic Violence Act 2005The court of Judicial Magistrate of the first class or the Metropolitan Magistrate as the case may be within the local limits of which a) the person aggrieved permanently or temporarily resides or carries on business or is employed or b) the respondent resides or carries on business or is employed c) the cause of action has arisen shall be the competent court to grant a protection order and other orders under this Act and to try offences under this Act 2) Any order made under this Act shall be enforceable throughout A plain reading of the above provision makes it clear that the petition under the Domestic Violence Act can be filed in a court where the “person aggrieved” permanently or temporarily resides or carries on business or is employed. In the present case the respondent is residing with her parents within the territorial limits of Metropolitan Magistrate Court Bengaluru. In view of Section 27(1 a) of the Act the Metropolitan Magistrate court Bengaluru has the jurisdiction to entertain the complaint and take cognizance of the offence. There is no merit in the contention raising objection as to the jurisdiction of the Metropolitan Magistrate Court at Bengaluru In the result Crl. Misc. No.53 of 2015 filed against the appellants No.3 to 13 is quashed and this appeal is partly allowed The learned VI Additional Metropolitan Magistrate at Bengaluru shall proceed with Crl. Misc. No.515 against appellants No.1 2 and 14 and dispose the same in accordance with law. We make it clear that we have not expressed any opinion on the merits of the New Delhi January 22 2020 [R. BANUMATHI [A.S. BOPANNA [HRISHIKESH ROY

Arbitration can only be challenged before the courts once the award is passed : Supreme Court

Higher Courts cannot use their inherent power under Article 227 of the Constitution to interject the arbitral proceedings before the award is given except in rare and exceptional cases. The Supreme Court bench consisting of J. N V Ramana, J. Surya Kant and J. Hrishikesh Roy, explained upon the principle of unbreakability and jurisdictional conflict of an already appointed arbitrator in the matter of Bhaven Construction through Authorised Signatory Premjibhai K. Shah v. Executive Engineer Sardar Sarovar Narmada Nigam Ltd. & Anr. [Civil Appeal No. 14665 of 2015]. The Respondent entered into a contract with the Appellant to manufacture and supply bricks. The said contract had an arbitration clause. As some dispute arose regarding the payment in furtherance of the manufacturing and supplying of bricks, the appellant issued a notice seeking appointment of a sole arbitrator in accordance with Clause 38 of the contract. The respondent replied and did not agree to the appellant’s request on two main grounds – 1. That the disputes between the parties were to be adjudicated in accordance with the Gujarat Public Works Contracts Disputes Arbitration Tribunal Act, 1992 and 2. That the arbitration was time barred and neither of the parties were entitled to claim if the arbitrator had not been appointed within 30 days after the defect liability period. Regardless, the appellants appointed a sole arbitrator who rejected the application of the respondent holding that he had the jurisdiction to adjudicate the dispute. Aggrieved, the respondent preferred a Special Civil Application under Articles 226 and 227 of the Constitution before the High Court which was further dismissed on the grounds that “the only remedy available to the petitioner is to wait till the award is passed by the learned Sole Arbitrator and to challenge the same under Section 34 of the Act…”. Aggrieved again, the respondents preferred a Letters Patent Appeal in Special Leave Application which was allowed by the HC holding that “the appellant denied that in view of Clause-38, wherein it is provided that, ‘provision of Indian Arbitration Act, 1940 and any statutory modification thereof will be applicable’, the respondent cannot appoint a sole arbitrator and thereafter cannot contend that now that the Arbitrator is already appointed and he (the arbitrator) has already exercised power under the provisions of the Arbitration and Conciliation Act, 1996, the petitioner has to wait till the arbitration award is passed, to challenge the same under Section 34 and Section 37 of the 1996 Act”.

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 14665 OF 2015 BHAVEN CONSTRUCTION THROUGH AUTHORISED SIGNATORY PREMJIBHAI K. SHAH … APPELLANT EXECUTIVE ENGINEER SARDAR SAROVAR NARMADA NIGAM LTD.& ANR. … RESPONDENTS JUDGMENT N.V. RAMANA J. 1. This Civil Appeal raises an important question of law concerning arbitration law in India and special enactments enacted by States concerning public works contract. 2. A brief reference to facts in this case is necessary for the disposal of the case. On 13.02.1991 Respondent No. 1 entered into a contract with the Appellant to manufacture and supply bricks. The aforesaid contract had an arbitration clause. As some dispute arose regarding payment in furtherance of manufacturing and supplying of bricks the Appellant issued a notice dated 13.11.1998 seeking appointment of sole arbitrator in terms of the agreement. Clause 38 of the agreement provide for arbitration as under: Clause 38 Arbitration All disputes or differences respect of which the decision has not been settled shall be referred arbitration to a sole arbitrator appointed as follows: to refer the dispute Within thirty days of receipt of from the Contractor of his arbitration the Chief Engineer shall send to the Contractor a list of three officers from the list of arbitrator appointment by the Government. The Contractor shall within fifteen days of receipt of this list select and communicate to the Chief Engineer the name of the person from the list who shall then be appointed as the sole arbitrator. If Contractor fails to communicate his selection of name within the stipulated period the Chief Engineer shall without delay select one officer from the list and appoint him as the sole arbitrator. If the Chief Engineer fails to send such a list within thirty days as stipulated the contractor shall send a similar list to the Chief Engineer within fifteen days. The Chief Engineer shall then select one officer form the list fifteen days. and appoint him as the sole arbitrator If the Chief Engineer fails to do so the contractor shall communicate to the Chief Engineer the name of one Officer from the list who shall then be the sole arbitrator. The arbitration shall be conducted in accordance with the provision of the Indian Arbitration Act 1940 or any thereof. The statutory modification decision of the sole arbitrator shall be final and binding on the parties thereto. The Arbitrator shall determine the amount of costs of arbitration to be awarded to either parties. Performance under the contract shall continue during the arbitration proceedings and payments due to the contractor by the owner shall not be withheld unless they are the subject matter of the arbitration proceedings. All awards shall be in writing and in case of awards amounting to Rs. 1.00 lakh and above such awards shall state reasons for the amounts awards. Neither party is entitled to bring a claim to arbitration if the Arbitrator has not been appointed before the expiration of thirty days after defect liability period. emphasis supplied) 3. Respondent No. 1 by replies dated 23.11.1998 and 04.01.1999 did not agree to the Appellant’s request on two main grounds: a. That the arbitration was agreed to be conducted in accordance with the provision of the Indian Arbitration Act and any statutory modification thereof. Accordingly the State of Gujarat had the Gujarat Public Works Contracts Disputes Arbitration Tribunal Act 1992disputing the jurisdiction of the sole arbitrator. On 20.10.2001 the sole arbitrator rejected the application of the Respondent No. 1 and held that the sole arbitrator had jurisdiction to adjudicate the dispute. 5. Aggrieved by the order of the sole arbitrator Respondent No. 1 preferred Special Civil Application No. 400 of 2002 under Articles 226 and 227 of the Constitution of India before the High Court of Gujarat. The Single Judge while dismissing the Special Civil Application held as under: “ At this stage the judgment of the Hon’ble Supreme Court in the case of Konkan Railway Corporation Limited v. Mehul Construction Company 2000) 7 SCC 201 is also required to be considered along with the judgment of the Hon’ble Supreme Court in the case of SBP & Co. v. Patel Engineering Ltd. 8 SCC 618. Considering the aforesaid two judgments of the Hon’ble Supreme Court and the order passed by the learned sole arbitrator passed under Section 16(4) of the Act dismissing the application submitted by the petitioner challenging the jurisdiction of respondent no. 2 as a sole arbitrator and challenging his appointment as a sole arbitrator it is to be held that the petition under Articles 226 and 227 of the Constitution of India against the said order is not maintainable and or the same is not required to entertained and the only remedy available to the petitioner is to wait till the award is passed by the learned Sole Arbitrator and to challenge the same under Section 34 of the Act…” 6. Aggrieved by the order of the Single Judge Respondent No. 1 preferred Letters Patent Appeal No. 1806 in Special Civil Application No. 4002. The High Court of Gujarat by the impugned order dated 17.09.2012 allowed the appeal and observed the following: “11. As discussed hereinabove ‘the contract’ is a “works Contract” and a dispute is raised by the petitioner at the earliest available opportunity in which the dispute be about the ‘forum’ adjudicated. It was as early as on 23.11.1998 the appellant denied that in view of Clause 38 wherein it is provided that ‘provision of Indian Arbitration Act 1940 and any statutory modification thereof will be applicable’ the respondent cannot appoint a sole arbitrator and thereafter cannot contend that now that the Arbitrator is already appointed and hehas already exercised power under the provisions of the Arbitration and Conciliation Act 1996 the petitioner has to wait till the arbitration award is passed to challenge the same under Section 34 and Section 37 of the 1996 7. Aggrieved the Appellant filed this appeal by way of special leave petition. 8. Counsel for the Appellant argued that the Division Bench of the High Court erred in interfering with the order of the Single Judge under Articles 226 and 227 of the Constitution. The fact that the final award has been passed by the sole Arbitrator and is now challenged under Section 34 of the Arbitration Act clearly shows the attempt of Respondent No. 1 to bypass the framework laid down under the Arbitration Act. He points out that Section 16(2) of the Arbitration Act mandates that the sole arbitrator had the jurisdiction to adjudicate the preliminary issue of jurisdiction which can only be challenged under Section 34 of the Arbitration Act. 9. On the other hand learned counsel for Respondent No. 1 contended that since the enactment of the Gujarat Act the Arbitration Act was substituted with respect to the disputes arising out of the works contract. It was contended that under Articles 226 and 227 of the Constitution it was always open for Respondent No. 1 to invoke the writ jurisdiction of the High Court to set aside an arbitration which was a nullity as it was in conflict with the State enactment. 10. Having heard both parties and perusing the material available on record the question which needs to be answered is whether the arbitral process could be interfered under Article 226 227 of the Constitution and under what circumstance 11. We need to note that the Arbitration Act is a code in itself. This phrase is not merely perfunctory but has definite legal consequences. One such consequence is spelled out under Section 5 of the Arbitration Act which reads as under “Notwithstanding anything contained in any other law for the time being in force in matters governed by this Part no judicial authority shall intervene except where so provided in this Part.” The non obstante clause is provided to uphold the intention of the legislature as provided in the Preamble to adopt UNCITRAL Model Law and Rules to reduce excessive judicial interference which is not contemplated under the Arbitration Act. 12. The Arbitration Act itself gives various procedures and forums to challenge the appointment of an arbitrator. The framework clearly portrays an intention to address most of the issues within the ambit of the Act itself without there being scope for any extra statutory mechanism to provide just and fair 13. Any party can enter into an arbitration agreement for resolving any disputes capable of being arbitrable. Parties while entering into such agreements need to fulfill the basic ingredients provided under Section 7 of the Arbitration Act. Arbitration being a creature of contract gives a flexible framework for the parties to agree for their own procedure with minimalistic stipulations under the Arbitration Act. If parties fail to refer a matter to arbitration or to appoint an arbitrator in accordance with the procedure agreed by them then a party can take recourse for court assistance under Section 8 or 11 of the Arbitration Act. In this context we may state that the Appellant acted in accordance with the procedure laid down under the agreement to unilaterally appoint a sole arbitrator without Respondent No. 1 mounting a judicial challenge at that stage. Respondent No. 1 then appeared before the sole arbitrator and challenged the jurisdiction of the sole arbitrator in terms of Section 16(2) of the Arbitration Act. 16. Thereafter Respondent No. 1 chose to impugn the order passed by the arbitrator under Section 16(2) of the Arbitration Act through a petition under Article 226 227 of the Indian Constitution. In the usual course the Arbitration Act provides for a mechanism of challenge under Section 34. The opening phase of Section 34 reads as ‘Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub sectionand sub section 14 SCC 337 this Court referred to several judgments and held: “11. We have considered the respective arguments submissions. There cannot be any dispute that the power of the High Courts to issue directions orders or writs including writs in the nature of habeas corpus certiorari mandamus quo warranto and prohibition under Article 226 of the Constitution is a basic feature of the Constitution and cannot be curtailed by parliamentary legislation L. Chandra Kumar v. Union of India 3 SCC 261. However it is one thing to say that in exercise of the power vested in it under Article 226 of the Constitution the High Court can entertain a writ petition against any order passed by or action taken by the authority or order passed by a quasi judicial body authority and it is an altogether different thing to say that each and every petition filed under Article 226 of the Constitution must be entertained by the High Court as a matter of course ignoring the fact that the aggrieved person has an effective alternative remedy. Rather it is settled law that when a statutory forum is created by redressal of grievances a writ petition should not be emphasis supplied) It is therefore prudent for a Judge to not exercise discretion to allow judicial interference beyond the procedure established under the enactment. This power needs to be exercised in exceptional rarity wherein one party is left remediless under the statute or a clear ‘bad faith’ shown by one of the parties. This high standard set by this Court is in terms of the legislative intention to make the arbitration fair and efficient. In this context we may observe M s. Deep Industries Limited v. Oil and Natural Gas Corporation Limited SCC Online SC 1602 wherein interplay of Section 5 of the Arbitration Act and Article 227 of the Constitution was analyzed as under: “15. Most significant of all is the non obstante clause contained in Section 5 which states that notwithstanding anything contained in any other law in matters that arise under Part I of the Arbitration Act no judicial authority shall intervene except where so provided in this Part. Section 37 grants a constricted right of first appeal against certain judgments and orders and no others. Further the statutory mandate also provides for one bite at the cherry and interdicts a second appeal being filedof the Act) 16. This being the case there is no doubt whatsoever that if petitions were to be filed under Articles 226 227 of the Constitution against orders passed in appeals under Section 37 the entire arbitral process would be derailed and would not come to fruition for many years. At the same time we cannot forget that Article 227 is a constitutional provision which remains untouched by the non obstante clause of Section 5 of the Act. In these circumstances what is is that though important to note petitions can be filed under Article 227 dismissing first appeals under Section 37 of the Act yet the High Court would interfering with the same taking into account the statutory policy as adumbrated by us herein above so that interference is restricted to orders that are passed which are In the instant case Respondent No. 1 has not been able to show exceptional circumstance or ‘bad faith’ on the part of the Appellant to invoke the remedy under Article 227 of the Constitution. No doubt the ambit of Article 227 is broad and pervasive however the High Court should not have used its inherent power to interject the arbitral process at this stage. It is brought to our notice that subsequent to the impugned order of the sole arbitrator a final award was rendered by him on merits which is challenged by the Respondent No. 1 in a separate Section 34 application which is pending. 20. Viewed from a different perspective the arbitral process is strictly conditioned upon time limitation and modeled on the ‘principle of unbreakability’. This Court in P. Radha Bai v. P. Ashok Kumar 13 SCC 445 observed: 36.3. Third Section 34(3) reflects the principle of unbreakability. Dr Peter in International Commercial Conciliation in UNCITRAL Model Law Jurisdictions 2nd Edn. observed: “An application for setting aside an award can only be made during the three months following the date on which the party making the application has received the award. Only if a party has made a request for correction or interpretation of the award under Article 33 does the time limit of three months begin after the tribunal has disposed of the request. This exception from the three month time limit was subject to criticism in the working group due to fears that it could be used as a delaying tactics. However unbreakable time limit for applications for setting aside” was sought as being desirable for the sake of “certainty and expediency” the prevailing view was that the words ought to be retained “since consequence of Article 33”. According to this “unbreakability” of time limit and true to the “certainty and expediency” of the arbitral awards any grounds for setting aside the award that emerge after the three month time limit has expired cannot be raised. 37. Extending Section 17 of Limitation Act would go contrary to the principle of “unbreakability” enshrined under Section 34(3) of the Arbitration emphasis supplied) If the Courts are allowed to interfere with the arbitral process beyond the ambit of the enactment then the efficiency of the process will be diminished. 21. The High Court did not appreciate the limitations under Articles 226 and 227 of the Constitution and reasoned that the Appellant had undertaken to appoint an arbitrator unilaterally thereby rendering the Respondent No. 1 remediless. However a plain reading of the arbitration agreement points to the fact that the Appellant herein had actually acted in accordance with the procedure laid down without any mala fides. 22. Respondent No. 1 did not take legal recourse against the appointment of the sole arbitrator and rather submitted themselves before the tribunal to adjudicate on the jurisdiction issue as well as on the merits. In this situation the Respondent No. 1 has to endure the natural consequences of submitting themselves to the jurisdiction of the sole arbitrator which can be challenged through an application under Section 34. It may be noted that in the present case the award has already been passed during the pendency of this appeal and the Respondent No. 1 has already preferred a challenge under Section 34 to the same. Respondent No. 1 has not been able to show any exceptional circumstance which mandates the exercise of jurisdiction under Articles 226 and 227 of the Constitution. 23. The Division Bench further opined that the contract between the parties was in the nature of a works contract as it held that the manufacturing of bricks as required under the contract was only an ancillary obligation while the primary obligation on the Appellant was to supply the bricks. The Division Bench therefore held that the Gujarat Act holds the field and not the Arbitration Act. 24. The Gujarat Act was enacted in 1992 with the object to provide for the constitution of a tribunal to arbitrate disputes particularly arising from works contract to which the State Government or a public undertaking is a party. A works contract is defined under Section 2(k) of the Gujarat Act. The definition includes within itself a contract for supply of goods relating to the execution of any of the works specified under the section. However a plain reading of the contract between the parties indicates that it was for both manufacturing as well as supply of bricks. Importantly a contract for manufacture simpliciter is not a works contract under the definition provided under Section 2(k). The pertinent question therefore is whether the present contract which is composite in nature falls within the ambit of a works contract under Section 2(k) of the Gujarat Act. This is a question that requires contractual interpretation and is a matter of evidence especially when both parties have taken contradictory stands regarding this issue. It is a settled law that the interpretation of contracts in such cases shall generally not be done in the writ jurisdiction. Further the mere fact that the Gujarat Act might apply may not be sufficient for the writ courts to entertain the plea of Respondent No. 1 to challenge the ruling of the arbitrator under Section 16 of the Arbitration Act. It must be noted that Section 16 of the Arbitration Act necessarily mandates that the issue of jurisdiction must be dealt first by the tribunal before the Court examines the same under Section 34. Respondent No. 1 is therefore not left remediless and has statutorily been provided a chance of appeal. In Deep Industries casethis Court observed as follows: “22. One other feature of this case is of some importance. As stated herein above on 09.05.2018 a Section 16 application had been dismissed by the the same contention which found favour with the High Court was taken up. The drill of Section 16 of the Act is that where a Section 16 application is dismissed no appeal is provided and the challenge to the dismissed must await the passing of a final award at which stage it may be raised under Section 34.” emphasis supplied) In view of the above reasoning we are of the considered opinion that the High Court erred in utilizing its discretionary power available under Articles 226 and 227 of the Constitution herein. Thus the appeal is allowed and the impugned Order of the High Court is set aside. There shall be no order as to costs. Before we part we make it clear that Respondent No. 1 herein is at liberty to raise any legally permissible objections regarding the jurisdictional question in the pending Section 34 N.V. RAMANA) SURYA KANT) HRISHIKESH ROY) NEW DELHI JANUARY 06 2021.

The Court declined pre-arrest bail to the petitioner as he was arrested under Sections 341, 323, 307, 504, and 506/34 IPC and 27 of the Arms Act, 1959: High court of Patna

 The petitioner was arrested under Section 341 of the Indian Penal Code, “Punishment for wrongful restraint”, section 323, “ Punishment for voluntarily causing hurt”, section 307, “Attempt to murder”, section 504, “Intentional insult with intent to provoke breach of the peace”, section 506, “Punishment for criminal intimidation”, section 34 IPC, “Acts have done by several persons in furtherance of common intention” and section 27 of the Arms Act, 1959, “Punishment for using arms, whoever uses any arms or ammunition in contravention of section 5 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.” This present petition is in connection with Muffasil PS Case No. 116 of 2020 dated 14.05.2020. In the high court of Judicature at Patna, this judgment was given by honorable Mr. Justice Ahsanuddin Amanullah on the 21st of August 2021 in the case of Md Irshad versus the state of Bihar criminal miscellaneous No. 12365 of 2021 Mr. Shivendra Kumar Sinha Represented as the advocate for the petitioner, and Mr. Niranjan Parihar represented the state of Bihar as the additional Public Prosecutor, the proceedings of the court were held via video conference. The following are the facts of the case, the petitioner and others have been accused of entering the house of the informant and abused and threatened to withdraw the case filed by the nephew of the informant against the petitioners and they further assaulted the informant with an iron rod and the petitioner especially was accused of firing with his gun which is a violation under the arms act which hit the inside wall after breaking the window glass. The counsel for the petitioner held that the FIR was lodged almost 3 hours before the incident and the delay for the same was no explained. The petitioners have also filed a case against the informant however there has been no injury caused to anyone despite the scuffle and the petitioners have been falsely implicated for the same. The additional public prosecutor held that according to the FIR, it clearly indicated the petitioner has mens rea which is motive and intention to commit this crime as they were also accused by an earlier case filed by the nephew of the informant and they used force and exerted pressure to withdraw the case. Further, the APP held that after investigation they have recovered an empty cartridge which proves the incident was done mala fide.  Regarding the delay in the FIR, which was lodged by the informant it was lodged at 9:45 AM on the 14th May 2020 and the incident took place at 8:30 AM, whereas the petitioner’s lodged an FIR with a delay of almost 24 hours and therefore it is inapplicable to grant bail for the same. The court concluded that “Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, the Court is not inclined to grant pre-arrest bail to the petitioner.  Accordingly, the petition stands dismissed.”

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 123621 Arising Out of PS. Case No. 116 Year 2020 Thana MUNGER MUFFASIL District Munger Md Irshad Male aged about 25 years Son of Mohd Jameel Resident of Village Banaudha PS Muffasil District Munger The State of Bihar ... Petitioner s ... Opposite Party s For the Petitioner s For the State Mr. Shivendra Kumar Sinha Advocate Mr. Niranjan Parihar APP CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 24 08 2021 The matter has been heard via video conferencing 2. The case has been taken up out of turn on the basis of motion slip filed by learned counsel for the petitioner which was 3. Heard Mr. Shivendra Kumar Sinha learned counsel for the petitioner and Mr. Niranjan Parihar learned Additional Public Prosecutor for the 4. The petitioner apprehends arrest in connection with Muffasil PS Case No. 1120 dated 14.05.2020 instituted under Sections 341 323 307 504 and 506 34 of the Indian Penal Code and 27 of the Arms Act 1959. Patna High Court CR. MISC. No.123621 dt.24 08 2021 5. The allegation against the petitioner and others is that they had come to the house of the informant and had abused and threatened to withdraw the case filed by the nephew of the informant against the accused persons and thereafter of having assaulted by iron rod and specifically against the petitioner is that he had fired which hit the inside wall after breaking the window 6. Learned counsel for the petitioner submitted that they had earlier filed Muffisil PS Case No. 1120 against the informant and others. It was submitted that no injury has been caused to anybody. It was submitted that the FIR has been lodged after almost three hours of the incident 7. Learned APP submitted that from the FIR itself it is clear that the accused including the petitioner had real motive to commit the crime as they were accused in the earlier case filed by the nephew of the informant and for getting the same withdrawn they had tried to exert undue pressure. It was further submitted that the allegation in the FIR is corroborated by recovery of empty cartridge. As far as the other case is concerned it was submitted that the same has to be seen on its own merits. Moreover it was submitted that the present FIR has been lodged at 9:45 AM on 14.05.2020 and the time of the incident is said to be 8:30 AM Patna High Court CR. MISC. No.123621 dt.24 08 2021 whereas the petitioner’s side had filed the case on 14.05.2020 at 9:30 AM for an incident which is said to have taken place between 4:00 PM on 12.05.2020 and 10:00 AM on 13.05.2020 and thus the delay in lodging of the said case is almost 24 hours 8. 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 petitioner. 9. Accordingly the petition stands dismissed (Ahsanuddin Amanullah J

Entitled to bail even if raped on pretext of marriage : Bombay High Court

A man accused of raping a woman is entitled to anticipatory bail upon being booked for charges of rape on the pretext of marrying the victim in future is upheld by the High Court of Judicature at Bombay through a single judge bench led by HONOURABLE MR. JUSTICE SP TAVADE in the case of Gulab Laxman Meshram v. State Of Maharashtra (CRIMINAL APPLICATION (ABA) NO. 21 OF 2022). Brief facts of the case are that the applicant allegedly promised to marry the complaining woman and had sexual intercourse with her for about four years before expressing that he did not want to marry her. When the woman learned of the applicant’s reluctance, she filed a complaint against him and made an (FIR) registered as per Section 376 of Indian Penal Code. Upon registration, the applicant applied for an anticipatory bail before this court. The counsel for applicant contended that he never promised the complainant to marry. The couple had a long-term relationship and the applicant had never had any sexual intercourse under the pretext of a promise of marriage.In fact, the applicant had never made any promises to the complainant. The counsel for the State contended that the applicant proposed  the woman for marriage in the year 2016 and they both stayed together at the complainant’s residence. The applicant promised to marry her and then had sexual intercourse with her until January 2020. The Bombay High Court held that failure to fulfill the promise of marriage did not mean that the promise itself was wrong. Consent between the parties for sexual relations was not only based on the promise of marriage, but also a consensual relationship.At first glance, it did not show that the promise of the applicant was wrong or that the complainant had sexual intercourse based on this promise. In the case of arrest, the court may release the applicant on bail with a bail of ₹15,000 and to report to the relevant Police Station every day for three weeks.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR CRIMINAL APPLICATION417 of the Indian Penal Code. Victim girl is aged about 24 years. She lodged First Information Report on 13 12 2021 wherein she contended that she is resident of village Gawara Tq. Zari Distt. Yavatmal. She completed her nursing course in the year 2017. The applicant is son of her cousin maternal uncle who resides at village Khapri Tah. Zari District Yavatmal. It is alleged that when she was doing nursing course at Pune she had come to her house at village Gawara. She had come for Diwali festival during that period the applicant called her and they started talking to each other Initially they were friends thereafter the applicant proposed her for marriage. Thereafter they developed love relationship She completed her nursing course in the year 2017. She joined Niga Hospital Pune. One day applicant came to Pune and met 2 19 aba 21 2022.odt her. He also suggested that they should marry. Thereafter in the month of January 2018 applicant came to see her. She was provided residence by the hospital. The applicant stayed with her during the night and had a sexual relations with her Thereafter the applicant used to have a sexual relations with Prior to lock down in the month of January 2020 the informant met with an accident. Hence she had been to her village Gawara. The applicant used to visit her house. He used to stay in her house. The applicant was serving in Railway Department. He used to attend his duty from the house of the complainant. It is alleged that the applicant used to tell the parents of complainant that he would marry with the complainant. He also assured that after marriage of his sister he would marry with the complainant. Therefore the parents of the complainant did not object the visits of applicant to their house. It is alleged that the applicant used to tell complainant that he would marry her and therefore the complainant used to allow him to have a sexual relations with her. It is alleged that due to the promise of marriage given by the applicant she used to have a sexual relations with On 24 11 2021 at about 1.00 p.m. applicant came to the house of the complainant and she was alone in the house. He had sexual relations with her. The applicant disclosed complainant that his parents are in hurry to settle his marriage and he requested her to send her parents to his 3 19 aba 21 2022.odt house for settlement of marriage. Accordingly on 08 12 2021 the parents of the complainant went to the house of the applicant. The father of the applicant told the parents of complainant that the applicant is not ready to marry with the complainant hence they return back. The applicant came to know that on 13 12 2021 the applicant has engaged with one girl with village Zamkhola thereafter she came to Police Station and lodged the report On the basis of the First Information Report it is contended that applicant is innocent. He had not committed any crime. There is delay in lodging the First Information Report. It is contended that the applicant never promised complainant to marry. It is contended that since last more than four years the applicant and complainant were in consensual relationship. The complainant was working as a nurse in hospital at Pune. It is contended that they were having relationship for long period. It is contended that applicant never had sexual relation with the complainant on the false promise of marriage. In fact applicant never gave any sought promise to Therefore relationship between applicant and complainant were consensual. Hence no offence is made out against the applicant. It is contended that the custodial interrogation of the applicant is not required and therefore it is prayed that the applicant be released on bail in anticipation of arrest Notice of this application was issued to learned A.P.P Learned A.P.P. has filed reply. It is contended that applicant on 4 19 aba 21 2022.odt the pretext of marriage had kept physical relations with the complainant. The complainant was referred to medical examination and report is submitted by Medical Officer. Her statement under Section 164 is also recorded. The applicant is absconding since the registration of crime. It is contended that on perusal of statement of victim it is clear that the applicant on misconception of fact obtained the consent of the complainant and had sexual relations with her. Therefore it is prayed that the offence is prima facie made out against the applicant and therefore application be rejected Perused the First Information Report Heard learned Counel for the applicant and learned A.P.P. on behalf of State. In order to appreciate the submissions of the applicant one has to see the contents of the First Information Report. It is alleged against the applicant that applicant is cousin maternal brother of the complainant The complainant and the applicant were having friendly relationship with each other since 2015 16. Thereafter applicant proposed the complainant for marriage in the year 2016. It is also contended in the First Information Report that the complainant completed her nursing course in the year 2017 and she was employed with Niga Hospital Pune. The applicant had met her and promise her to marry. Thereafter in the month of January 2018 applicant again met the complainant thereafter both of them stayed together in the residential house of the complainant. It is alleged that the applicant promised her to marry and thereafter had a sexual 5 19 aba 21 2022.odt relations with her and the said relations continued till January 2020. It is contended in the First Information Report that in the month of January 2020 the complainant met with an accident hence she went to her native place. The applicant was serving in Railway Department. He used to visit the house of the complainant and used to have sexual relations with her It is also alleged that the applicant had also given an understanding to the parents of the complainant that he would marry complainant after marriage of his sister. It is also alleged that till 24 11 2021 the applicant was having sexual relations with the complainant. It also appears from the First Information Report that the applicant had invited the parents of the complainant for settlement of his marriage. Accordingly the parents and other relatives of the complainant had been to the house of the applicant. But his father refused to settle the marriage of applicant with the complainant. Hence First Information Report came to be filed In view of the said allegations it is to be seen whether the applicant had a sexual relations with the complainant on the pretext of marriage. No doubt the complainant has specifically alleged in the First Information Report that when the applicant met her at Pune in the year 2017 he had proposed that they would marry. But it appears from the First Information Report that the applicant and the complainant had a love affair since 2016. But it appears that they had physical relations since January 2018 till November 2021. It also appears that the applicant used to reside in the house of the complainant at native place and used to have 6 19 aba 21 2022.odt sexual relations. The said relationship were known to the parents of the complainant. From the said averments in the First Information Report the important features emerges as Once the relation between applicant and the victim who is the complainant was of a consensual nature both of them were in the relationship for about four years. The applicant had expressed disinclination to marry the complainant which led to the registration of First Information Report. Therefore it can be said that though there was promise of marriage one has to see whether the said promise was false since its inception On perusal of the First Information Report it appears that it does not on its face indicate that the promise by applicant was false or that the complainant engaged in sexual relations on the basis of this promise. There is no allegation in the First Information Report that when applicant promised to marry the complainant it was done in bad faith and intention to decisive her. The said fact is established from the long standing physical relationship between the parties. The applicant’s failure to fulfill his promise to marry cannot be construed to mean the promise itself was false. As soon as the parents of applicant refused the marriage proposal the First Information Report came to be filed The learned Counsel for the applicant submits that the alleged consent given by the complainant for physical relationship was not the result of alleged promise to marry by 7 19 aba 21 2022.odt the applicant. Therefore there was no misconception of fact in the mind of the complainant. To buttress his point he relied on the ratio laid down in Pramod Pawar Vs. State of Maharashtra reported in9 SCC 608 wherein the Apex Court on the facts of the said case has summarized the legal position as under 18. To summarise the legal position that emerges from the above cases the “consent” of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry two propositions must be established. The promise of marriage must have been a false promise given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance or bear a direct nexus to the woman’s decision to engage in the sexual act In present case also it appears that the complainant alleged that the applicant had proposed her in the year 2016 thereafter they had sexual relationship with each other since 2018 to 2021 continuously. Therefore it can be said that even though it is presumed that the applicant had given promise to marry her there is no material on record to establish that the said promise was false since its inception The learned Counsel has also relied on the ratio laid down in the case of Sonu @ Subhash Kumar Vs. State of U.P reported in 2021 SCC OnLine SC 181 wherein the facts of the said case are similar to the facts of the present case. In the said 8 19 aba 21 2022.odt case also the appellant and the respondent were having physical relationship for long period. It was alleged therein that the applicant had given false promise of marriage. Hence the respondent continued her physical relationship with him and thereafter he refused to marry. In the facts of the said case the Apex Court has held that there was no material on record to establish that the false promise was given since inception. In present case also there are allegations of false promise but on perusal of the First Information Report it appears that the complainant and applicant were having physical relations with their consent. There may be promise of marriage given by the applicant but looking to the long standing physical relationship it does not mean that the applicant had sexual relations with the complainant on the basis of false promise of marriage. Therefore in view of the above case laws I am of the opinion that there is material on record to hold that the consent given by complainant for sexual relations with applicant was not simply based on promise to marriage. They had the consensual relationship Therefore the applicant is entitled for pre arrest bail. Hence I pass the following order Application is allowed In the event of arrest applicant Gulab S o Laxman Meshram in Crime No. 138 2021 registered with Patan Police Station District Yavatmal for the offences punishable under Sections 376 376(2)(n) 417 of the Indian Penal Code he be released on 9 bail on he furnishing P.R. and SD Bond of Rs.15 000 with one surety in the like amount 19 aba 21 2022.odt The applicant accused shall attend concerned Police Station every day in between 10.00 a.m. to 12.00 noon for the period of three weeks Jayashree.. (SURENDRA P. TAVADE J

Challenging the direct recruitment made with the settled principles of law: Cuttack High Court

Committed error in failing the appreciate the principle that the process of recruitment prescribed in the Odisha Human Rights Commission rules,2012 cannot have the retrospective application by Hon’ble Justice B.P. Routray in the matters of Nihar Ranjan Tripathy v. State of Odisha and others. [ Writ Appeal No. 523 of 2020]. The background of the case starts with the newly created establishment of Odisha Human Rights Commission (OHRC) no prescribed guidelines or rule was there for direct recruitment to the post. So in the absence of any such provisions governing conditions of recruitment, the Petitioner was appointed by the OHRA directly without due process of selection. Neither was any advertisement made nor any competitive examination held for recruitment to the post. The petitioner was straightaway appointed 29th August 2003 by the OHRC through the formal interview for an initial period of one year which was extended from time to time. The Odisha Human Rights Commission (Method of recruitment and conditions of service of officers and other staff) Rules, 2012 came into force. Rule 4 of the said rules prescribes that the appointment to different categories of a post in the commission shall be made either by direct recruitment holding competitive examination or by promotion or by deputation. Rule 8 further prescribes that “Notwithstanding anything contained in the provision of these rules, the persons holding posts in the State Commission on the date of commencement of these rules either on direct recruitment or transfer on deputation basis and who fulfil the qualification and experience laid down in these rules and who are considered suitable by the committee, shall be eligible for absorption in the respective grades”. After the OHRC Rules, 2012 came into force, the service of the petitioner was regularized on absorption in the regular scale of pay in terms of Rule 8 and periodical increment was granted to the petitioner. In the letter directing the Petitioner is not entitled to further increment because of the audit objection that his appointment/ absorption was irregular and he is liable to refund of excess amount of remuneration received. The Appellant was directed to repay an amount of Rs. 4,624/- Petitioner challenged the audit objection in para 20(A) and writ petition with a prayer to quash the same and further to regularize petitioner service.  The Hon’ble Court adjudication of the writ petition did not find any infirmity on the order impugned but repayment of Rs. 4,264/- is concerned, it is directed to effect the same only after compliance of the Principles of Natural justice. “The method of direct recruitment has been prescribed in Rule 6 read with the schedule, the initial appointment to the post has been made without following the method of competitive examination which is against the fundamental principles of recruitment, the subsequent regularization based in the same also becomes irregular and there cannot be any second opinion on this”. 

IN THE HIGH COURT OF ORISSA AT CUTTACK WRIT APPEAL No.5220 From the judgment dated 6th August 2020 passed by learned Single Judge in Writ PetitionNo.143417) Nihar Ranjan Tripathy Appellant Versus State of Odisha and others ….… For Appellant Mr. Susanta Kumar Dash Advocate Mr. Manoj Kumar Khuntia A.G.A. Mr. V. Narasingh Advocate Advocate(s) appeared in this case: For Respondents CORAM : THE CHIEF JUSTICE JUSTICE B.P. ROUTRAY JUDGMENT B.P. Routray J. 1. The judgment dated 6th August 2020 of the learned Single Judge passed in Writ Petition No.14345 of 2017 has been assailed in the present writ appeal. 2. The Appellant was the unsuccessful Writ Petitioner. W.A. No.5220 3. In the newly created establishment of Odisha Human Rights Commission Bhubaneswar the post of Junior Stenographer was created on 24th April 2003 when no prescribed guideline or rule was there for direct recruitment to the post in question. So in absence of any such provisions governing conditions of recruitment the Petitioner was appointed on 29th August 2003 by the OHRC directly without due process of selection. Neither was any advertisement made nor any competitive examination held for recruitment to the post. The Petitioner was straightaway appointed through formal interview for an initial period of one year which was extended from time to time. 4. The Odisha Human Rights CommissionRules 2012 hereinafter referred as “OHRC Rules 2012”) came into force w.e.f. 4th January 2013. Rule 4 of the said rules prescribes that appointment to different categories of posts in the commission shall be made either by direct recruitment holding competitive examination or by promotion or by deputation. Rule 8 further prescribes that “Notwithstanding anything contained in the provisions of these rules the persons holding posts in the State Commission on the date of commencement of these rules either on direct recruitment or transfer on deputation basis and who fulfill the qualifications and experience laid down in these rules and who are W.A. No.5220 considered suitable by the Committee shall be eligible for absorption in the respective grades….” 5. After the OHRC Rules 2012 came into force the service of the Petitioner was regularized on absorption w.e.f. 16th November 2013 in the regular scale of pay in terms of Rule 8 and periodical increment was also granted to him. 6. Subsequently in course of audit verification for the year 2014 15 the Office of the Accountant General Odisha raised objection towards irregular regularisation of the appellant through absorption. The said objection noted at para 20(A) of the audit report reads as under: “Although OHRC is an autonomous body all the relevant Act Rules Regulations as well as instructions issued by the Government are applicable to this organization also. In the instant case i.e. the absorption of Sri Nihar Ranjan Tripathy is irregular as he was not appointed according to the relevant rules or in adherence to Articles 14 and 16 of the Constitution of India and subsequently absorbed. Hence the para is retained.” Thereafter OHRC in their letter dated 13th July 2017 directed that the Petitioner is not entitled to further increment in view of the audit objection that his appointment absorption was irregular and he is liable for refund of excess amount of remuneration received. The Appellant W.A. No.5220 was further directed to repay an amount of Rs.4264 . He challenged the audit objection in para 20(A) and subsequent order of the OHRC Annexure 10 & 11 respectively) in the writ petition with a prayer to quash the same and further to regularize his service. 7. Learned Single Judge upon adjudication of the writ petition did not find any infirmity in the orders impugned before him but so far repayment of Rs.4264 is concerned it was directed to effect the same only after compliance of the principles of natural justice. 8. It is submitted on behalf of the Appellant that learned Single Judge has committed error in failing to appreciate the principle that the process of recruitment prescribed in the OHRC Rules 2012 cannot have the retrospective application and no prescribed provision for recruitment to the post was there at the time of appointment of the Appellant. Therefore it is wholly unsustainable to hold the regularization as irregular being violative of the rules. It is also submitted that no opportunity of hearing was granted to the Appellant against the audit 9. It remains undisputed that the initial appointment of the Appellant Petitioner in the Office of the Commission was without any process of W.A. No.5220 selection. The prayer for regularization of the Appellant Petitioner has been rejected by the learned Single Judge on the ground that his appointment without following due recruitment process is violative of Articles 14 and 16 of the Constitution of India. 10. Now coming to the submission that the OHRC Rules 2012 cannot be given retrospective effect to hold the initial appointment of the Appellant Petitioner as irregular it appears to be wholly misconceived. The reason being that at the time direct recruitment in the year 2003 even in absence of any specific rules prescribing the procedure the authorities are expected to follow the fundamental principles enshrined in Articles 14 and 16 of the Constitution. The question is not about retrospective application of the rules but regarding adherence of common standards of competitive examination. Perusal of the OHRC Rules 2012 and the schedule appended thereto reveals the procedure for selection through competitive examination. Rule 8 thereof permits regularization by absorption either on direct recruitment or on deputation. The method of direct recruitment has been prescribed in Rule 6 read with the Schedule. When the initial appointment to the post has been made without following the method of competitive examination which is against the fundamental principles of recruitment the subsequent regularization based on the same also becomes irregular W.A. No.5220 and there cannot be any second opinion on this. So the learned single judge has rightly come to the conclusion that it is violative of Articles 14 and 16 of the Constitution of India. While regularizing through absorption on direct recruitment it is the duty of the authority to see that the direct recruitment concerned has been made in accordance with the settled principles of law. 11. The learned Single Judge has discussed in detail the argument of the Appellant about his opportunity of a right of hearing before acting upon observation of the audit report which is not required to be discussed here essentially to avoid repetition. In this regard the learned Single Judge has also relied on the proposition of law propounded in the case of Ravi S. Naik v. Union of India AIR 1994 SC 1558 and Malloch v. Aberdeen Corporation 1971 All ER 1278. We concur with the approach and the conclusion of the learned Single Judge. 12. In the result the writ appeal is dismissed. B.K. Barik P.A. Judge (Dr. S. Muralidhar) Chief Justice W.A. No.5220

Appeal u/s 372 Crpc for enhancement of sentence is not maintainable: Supreme Court of India

For the aforesaid reasons, we do not find any merit in this appeal so as to interfere with the impugned order passed by the High Court.  The appeal is accordingly dismissed held by the division bench of Hon’ble Justice Ashok Bhushan and Justice R. Subhash Reddy in Parvinder Kansal vs. State of NCT of Delhi [Criminal Appeal No. 555 of 2020] that an appeal filed u/s 372 of Crpc for an inadequate sentence is not maintainable. Upholding the decision of Hon’ble High Court of Delhi which dismissed the appeal filed by the Victim for enhancement of sentence. The Victim contended before the court that proviso to Section 372 of Cr. PC provides the right to appeal to the victim when the accused is convicted for a lesser offence, there is no reason to restrict the scope of appeal only for a lesser offence but not for a lesser sentence, The Hon’ble court while examining the scope of the proviso to Section 372 of Crpc observed that a victims right to appeal is restricted to three eventualities a.) Acquittal of the accused; b) conviction of accused of lesser offence and c) imposing inadequate compensation. The Apex Court while coinciding with the High Court on placing reliance on National Commission for Women V. State of Delhi & Anr. [(2010) 12 SCC 599], observed that

Crl.A.@S.L.P.(Crl.)No.39220 This criminal appeal is filed by the appellant in Criminal Appeal No.1284 of 2019 aggrieved by the order dated 27th by the appellant herein under Section 372 of the Code of Sessions Case No.742 of 2007 by the Special Judge North District Rohini District Courts Delhi vide order dated 2007 registered on 15.10.2007 for the offence under Section 364A read with Section 34 IPC and the second respondent Crl.A.@S.L.P.(Crl.)No.39220 herein was the accused. After investigation of the crime chargesheet dated 11.01.2008 was filed against the second respondent­accused under Sections 364A 302 201 IPC. On committal case was referred to the court of Special Judge NDPS) North District Rohini Courts Delhi and the second respondent was tried in Sessions Case No.58259 of 2016. By punishable under Sections 364A 302 and 201 IPC. By offence under Sections 302 364A and 201 IPC as under of Rs.1 lakh. In default of payment of fine he is of Rs.1 lakh. In default of payment of fine he is C) The convict is sentenced with rigorous imprisonment for seven years for the offence punishable u s 201 IPC and is further directed to pay a fine of Rs.50 000 ­. In default of payment of of Section 428 Cr.PC shall be given to the convict Crl.A.@S.L.P.(Crl.)No.39220 The complainant who is the father of the deceased boy has filed appeal challenging the order of sentence dated 17 th August 2019 passed by ASJ Special Judge North District before the High Court under Section 372 Code of Criminal Procedure 1973 it was his case that the sentence of life imprisonment imposed on the second respondent­convict is inadequate and needs to be enhanced to death penalty. Vide impugned judgment dated 27th November 5. We have heard Sri Ashwani Bhardwaj learned advocate appearing for the appellant and Sri Chirag M. Shroff learned the Sessions Court instead to award punishment of death prefer appeal to the victim when the accused is convicted for Crl.A.@S.L.P.(Crl.)No.39220 only for a lesser offence but not for lesser sentence. It is murdered. As such it is submitted that it is a fit case for enhancement of sentence from life imprisonment to death penalty for the second respondent. The learned counsel has under Section 372 Cr.PC properly vis­a­vis the judgments the State of NCT of Delhi that a reading of provision under Section 372 and Section 377 of Cr.PC makes it clear that the convicting for lesser offence or for imposing inadequate compensation only whereas under Section 377 Cr.PC State the event of inadequate sentence by the Sessions Court. It is stated by learned counsel that for enhancement of sentence Crl.A.@S.L.P.(Crl.)No.39220 Having heard learned counsel on both sides we have Chapter XXIX of the Code of Criminal Procedure 1973 deals with ‘Appeals’ and Section 372 makes it clear that no 372 Cr.PC. The proviso is inserted to Section 372 Cr.PC by Act Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a A reading of the proviso makes it clear that so far as victim’s right of appeal is concerned same is restricted to three eventualities namely acquittal of the accused conviction of the accused for lesser offence or for imposing inadequate Crl.A.@S.L.P.(Crl.)No.39220 compensation. While the victim is given opportunity to prefer 377 Cr.PC gives the power to the State Government to prefer appeal for enhancement of sentence. While it is open for the victim under Section 372 Cr.PC on the ground of inadequate sentence. It is fairly well settled that the remedy of appeal is creature of the Statute. Unless same is provided either under in force no appeal seeking enhancement of sentence at the instance of the victim is maintainable. Further we are of the of Delhi & Anr. 12 SCC 599 has rightly relied on the Crl.A.@S.L.P.(Crl.)No.39220 10. For the aforesaid reasons we do not find any merit in this

Only High Courts have the power to take cognizance in respect of contempt of subordinate courts under Contempt of Courts Act, 1971: High Court of Delhi

According to Sections 10 and 15 of the Contempt of Courts Act, 1971, only High Courts have the power to take cognizance in respect of contempt of courts subordinate to it. Subordinate courts cannot assume jurisdiction and issue show cause notice as to why contempt proceedings has not been initiated. A subordinate court can only make a reference to the High Court for initiating contempt proceedings. These were stated by High Court of Delhi, consisting Justice Amit Bansal in the case of ICICI Bank Limited vs. Rashmi Sharma [CM(M) 36/2022] on 12.01.2022. The facts of the case are that the defendant approached the plaintiff for grant of a car loan cum hypothecation scheme of Rs.5,01,000 for the purchase of a vehicle. The loan documents were executed and the loan was duly sanctioned to the defendant. The defendant defaulted in payments of monthly instalments towards repayment of the loan and consequently. The plaintiff filed a commercial suit for recovery against the defendant. The summons were issued in the commercial suit. In terms of the aforesaid order passed by the Commercial Court, the plaintiff took steps for affecting service on the defendant through ordinary process as well as speed post by filing process fee and sealed covers containing the summons and paper book respectively. In addition to the service through the above modes, the plaintiff also sent the photograph of the summons issued by the Commercial Court to the defendant by means of WhatsApp since the plaintiff had the phone number of the defendant provided in the loan documents. When the matter came up before the Commercial Court it was noted that the defendant had received a private notice of appearance through WhatsApp and had not received any notice/summons from the Court. On the basis of the above, the Commercial Court passed the order that the act of plaintiff amounts to overreaching the judicial system or running a parallel system with the judicial system. The Counsel for the plaintiff submitted that the plaintiff had taken steps for the ordinary service as well as service through speed post upon the defendant. The process fee was duly filed in terms of which the summons were prepared for ordinary service by the process server and summons in respect of service through speed post were handed over to the plaintiff to be sent through speed post. It was submitted that even though steps were not taken by the plaintiff for service through email, but the photograph of the summons were duly sent to the defendant through WhatsApp and photocopy of the summons were sent through WhatsApp only to ensure presence of defendants before the Commercial Court on the next date of hearing. It was lastly contended, that even if the photograph of the summons were sent to the defendant through WhatsApp, no case of contempt has been made out. None appeared on behalf of the respondent despite advance service.

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

Right to get maintenance is not obliterated or affected by a custom nor would custom absolve the husband from his obligation to pay maintenance to his wife: High Court of J&K and Ladakh

Right to seek maintenance by the wife from her husband is a statutory right and this right is guaranteed under Section 488 Cr.P.C. Right to get maintenance is not obliterated or affected by a custom nor would custom absolve the husband from his obligation to pay maintenance to his wife as observed by the High Court of J&K, while citing the case-law of Hamida v. Ahmedullah Wani 2010 (7) JKJ HC-701, through the learned bench of Justice Vinod Chatterji Koul in the case of Farooq Ahmad Naikoo Vs Haseena and others [CRMc no.116/2019 (CRM(M) no.116/2019)]. In the petition, preferred under Section 561-A Cr. P. C, quashing of execution proceedings pending before the court of Judicial Magistrate, Pulwama (for short “Trial Court”) in the case titled Mst. Haseena and others v. Farooq Ahmad Naikoo, as also quashing of order dated 6th October 2017 passed by the Trial Court. He also seeks to quash of the order dated 23rd March 2018, passed by Additional District & Sessions Judge, Pulwama (for brevity “Revisional Court) in a Revision Petition titled Farooq Ahmad Naikoo v. Mst. Haseena and others. According to the learned counsel appearing for the petitioner, impugned orders and judgment have been passed by both the Trial and Revisional Courts without an appreciation of facts and circumstances of the law. He states that the order dated 6th October 2017 has been passed in ex parte, denying the opportunity of being heard by the petitioner. He also avers that application seeking execution of the order dated 6th October 2017 is a gross abuse of process of court as it was brought to the notice of Trial Court that question of seeking execution of order awarding maintenance to respondents does not arise as respondents are and have been living with petitioner. Against the order dated 6th October 2017, the petitioner preferred a Revision Petition before the Revisional Court. The said revision petition vide order dated 23rd March 2018 has been dismissed as it has been found that petitioner has a remedy in terms of proviso to Subsection 6 of Section 488 Cr.P.C., where under he can approach the Trial Court for setting aside ex parte proceedings. The Hon’ble High Court taking into account the case set up by the petitioner and the submissions made by the learned counsel, dismissed the petition while stating that “Dominant and primary object of Section 488 is to give social justice to the woman, child, and infirm parents etcetera and to prevent destitution and vagrancy by compelling those who can support those who are unable to support themselves but have a moral claim for support. It provides that any person, who has sufficient means to maintain himself, cannot deny maintenance to his wife and children. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing, and shelter to deserted wives. The right to seek maintenance by the wife from her husband is a statutory right and this right is guaranteed under Section 488 Cr.P.C. Right to get maintenance is not obliterated or affected by a custom nor would custom absolve the husband from his obligation to pay maintenance to his wife.”

HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR CRMc no.116 2019no.116 2019] Farooq Ahmad Naikoo Haseena and others Reserved on: 17.08.2021 Pronounced on: 08.10.2021 Through: Mr M. Ayoub Bhat Advocate Through: Mr S. M. Ayoub Advocate CORAM: HON’BLE MR JUSTICE VINOD CHATTERJI KOUL JUDGE 1. In this petition preferred under Section 561 A Cr. P. C.quashment of execution proceedings pending before the court of Judicial Magistrate Pulwamain the case titled Mst. Haseena and others v. Farooq Ahmad Naikoo as also quashment of order dated 6th October 2017 passed by the Trial Court. He also seeks quashment of order dated 23rd March 2018 passed by Additional District & Sessions Judge Pulwamain a Revision Petition titled Farooq Ahmad Naikoo v. Mst. Haseena and 2. I have heard learned counsel for parties and considered the matter. 3. According to learned counsel appearing for petitioner impugned orders and judgement have been passed by both the Trial and Revisional Courts without appreciation of facts and circumstances of the law. He states that order dated 6th October 2017 has been passed in ex parte denying opportunity of being heard to petitioner. He also avers that Page 1 CRMC no.116 2019 application seeking execution of the order dated 6th October 2017 is a gross abuse of process of court as it was brought to the notice of Trial that question of seeking execution of order awarding maintenance to respondents does not arise as respondents are and have been living with petitioner. 4. Perusal of the order dated 6th October 2017 reveals that respondents herein have preferred a petition under Section 488 Cr.P.C.and sought grant of maintenance therein. The Trial Court directed petitioner to make monthly maintenance @ Rs.750 in faovur of petitioners. 5. Against the order dated 6th October 2017 petitioner preferred a Revision Petition before the Revisional Court. The said revision petition vide order dated 23rd March 2018 has been dismissed as it has been found that petitioner has a remedy in terms of proviso to Subsection 6 of Section 488 Cr.P.C. whereunder he can approach the Trial Court for setting aside ex parte proceedings. 6. Taking into account case set up by petitioner and submissions made by learned counsel for petitioner it may be mentioned here that if a person notwithstanding having sufficient means neglects or refuses to maintain his wife his legitimate or illegitimate minor child whether married or not can be directed to pay monthly allowance for maintenance of his wife or child. It would be appropriate to reproduce Section 488 Cr. P.C. hereunder: “488. Order for maintenance of wives children and parents. — 1) If any person having sufficient means neglects or refuses to a) his wife unable to maintain herself or b) his legitimate or illegitimate minor child whether married or not unable to maintain itself or c) his legitimate or illegitimate childwho has attained majority where such child is by reason of any physical or mental abnormality or injury unable to maintain itself or d) his father or mother unable to maintain himself or herself a Magistrate of the first class may upon proof of such neglect or refusal order such person to make a monthly allowance for the maintenance of his wife or such child father or mother at such monthly rate 1[x x x] as such Magistrate thinks fit and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clauseto make such allowance until she attains her majority if the Magistrate is satisfied that the husband of such minor female child if married is not possessed of sufficient means. Page 2 CRMC no.116 2019 Explanation. —For the purpose of this Chapter “minor” means a person who under the provisions of the Majority Act Samvat 1977 is deemed not to have attained his majority]. 2) Such allowance shall be payable from the date of the order or if so ordered from the date of the application for maintenance. 3) If any person so ordered fails without sufficient cause to comply with the order any such Magistrate may for every breach of the order issue a warrant for levying the amount due in the manner provided for levying fines and may sentence such person for the whole or any part of each month’s allowance remaining unpaid after the execution of the warrant to imprisonment for a term which may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due: Provided further if such person offers to maintain his wife on condition of her living with him and she refuses to live with him such Magistrate may consider any grounds of refusal stated by her and may make an order under this section notwithstanding such offer if he is satisfied that there is just ground for so doing. 4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery or if without any sufficient reason she refuses to live with her husband or if they are living separately by mutual consent. 5) On proof that any wife in whose favour an order has been made under this section is living in adultery or that without sufficient reason she refuses to live with her husband or that they are living separately by mutual consent the Magistrate shall cancel the order. 6) All evidence under this Chapter 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 in the case of summons cases: Provided that if the Magistrate is satisfied that he is wilfully avoiding service or wilfully neglects to attend the Court the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown on an application made within three months from the date thereof. 7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just. 8) Proceedings under this section may be taken against any person in any district where he is or he or his wife resides or where he last resided with his wife or as the case may be with the mother of the illegitimate 7. Dominant and primary object of Section 488 is to give social justice to the woman child and infirm parents etcetera and to prevent destitution and vagrancy by compelling those who can support those who are unable to support themselves but have a moral claim for support. It provides that any person who has sufficient means to maintain himself cannot deny maintenance to his wife and children. The object is to Page 3 CRMC no.116 2019 prevent vagrancy and destitution. It provides a speedy remedy for supply of food clothing and shelter to deserted wife. 8. Right to seek maintenance by the wife from her husband is a statutory right and this right is guaranteed under Section 488 Cr.P.C. Right to get maintenance is not obliterated or affected by a custom nor would custom absolve the husband from his obligation to pay maintenance to his wife. JKJ HC 701]. 9. When the case in hand is analysed in the backdrop of above settled position of law it does not make out any case to set aside impugned orders or for that matter the proceedings under Section 488 Cr.P.C. Petitioner cannot deny to pay maintenance to his wife and or children. He is otherwise obliged to make payment of maintenance. Petition on hand clearly reflects and portrays disinclination on the part of petitioner to pay maintenance that has been directed by courts below to be paid by him to his wife and or children. Resultantly petition is liable to be dismissed. 10. For the reasons discussed above the instant petition is without any merit and is accordingly dismissed with connected CM(s). Interim direction if any shall stand vacated. 11. Copy be sent down along with the record. Ajaz Ahmad PS Whether the order is reportable: Yes No. Judge Page 4 CRMC no.116 2019

The Petition found to be non-maintainable and shall be appealed under Section 17 of the Sarfaesi Act 2002: High Court Of Patna

The petitioners have failed to show their bona fide since they are not ready to deposit any substantial amount out of the outstanding loan amount, due and payable, even according to them. The Court further found that the present writ petition is not maintainable and the appropriate remedy for the petitioner is to file an appropriate appeal under Section 17 of the ‘Sarfaesi Act, 2002’. The Hon’ble High Court of Patna before Justice Mr. Ahsanuddin Amanullah in the matter Charter Awadh Educational Trust and others v. State Bank of India and Ors[Civil Writ Jurisdiction Case No.19703 of 2021]. Current facts of the case were that the ownership of the school building has been taken under Section 13(4) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter alluded to as the ‘Sarfaesi Act, 2002’). The applicants are that candidate no. 1 is a trust framed for the reasons for setting up of a school and the candidate no. 2 is the Managing Trustee of the candidate no. 1. The candidates had taken credit from the respondent State Bank of India, Bikramganj Branch to the tune of Rs. 150.00 lakhs whereafter the solicitors had built the school building. In the long stretch of March 2016, the candidates had again applied for the upgrade of credit and a further advance of an amount of Rs. 3 crores were endorsed by the respondent Bank. Therefore, by non-installment of the portions of the credit being referred to, the advance record of the candidates was pronounced N.P.A. The bank had then made a move for recuperation of the whole credit sum. The learned senior advice for the candidate has presented that the specialists of the Bank have unexpectedly taken ownership of the structure is referred to. It is presented that the applicants are prepared to exchange the due sum in portions and go into a genial settlement with the respondent Bank, consequently, the instance of the solicitors be viewed as thoughtfully considering the way the endless supply of the school being referred to, the future possibility of the youngsters would endure. The Hon’ble High Court Of Patna held,” Having regard to the facts and circumstances of the case and considering the provisions of the ‘Sarfaesi Act, 2002’ and the aforesaid judicial pronouncements of the Hon’ble Apex Court, we do not find any merit in the present writ petition, hence the same stands dismissed, however, without any order as to costs.”

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.197021 Charter Awadh Educational Trust At and P.O. Belawaiyan P.S. Dinara District Rohatash 802213 through its Managing Trustee Sri Satyendra Sri Satyendra Kumar Son of Sri Ram Awadh Singh Managing Trustee Charter Awadh Educational Trust resident of At Prastampur P.O. Karhausi P.S. Dinar District Rohatash 802218 ... Petitioner s State Bank of India constituted under State Bank of India Act 1955 carrying on the business of Banking having its corporate centre at Madame Cama Road Nariman Point Mumbai through its Chairman The Chairman State Bank of India At Madame Cama Road Nariman Point Mumbai The State Bank of India Stressed Assets Management Branch Judges Court Road Anta Ghat Patna 800001 through its Divisional The Divisional General Manager State Bank of India Stressed Assets Management Branch Judges Court Road Anta Ghat Patna The State Bank of India Stressed Assets Resolution Branch 2nd Floor Main Branch Building West Gandhi Maidan Patna 800001 through its Assistant General Manager The Assistant General Manager State Bank of India Stressed Assets Resolution Branch 2nd Floor Main Branch Building West Gandhi Maidan Patna 800001 through its Divisional General Manager The Authorized Officer State Bank of India Stressed Assets Resolution Branch 2nd Floor Main Branch Building West Gandhi Maidan Patna 800001 The Senior Branch Manager State Bank of India Bikramganj Branch At and P.O. and P.S. Bikranganj District Rohtas ... Respondent s For the Petitioner s Mr. M.N. Parvat Sr. Advocate For the Respondent s Mr.Praveen Prabhakar Advocate Mr. Sanjay Singh Thakur Advocate Mr. Parijat Saurav Advocate CORAM: HONOURABLE MR. JUSTICE RAJAN GUPTA and HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH Patna High Court CWJC No.197021 dt.08 12 2021 Per: HONOURABLE MR. JUSTICE RAJAN GUPTA Date : 08 12 2021 The present writ petition has been filed for quashing the Inventory dated 05.01.000 prepared by the Authorized Officer by which possession of the school building has been taken under Section 13(4) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 hereinafter referred to as the ‘Sarfaesi Act 2002’ The brief facts of the case according to the petitioners are that the petitioner no. 1 is a trust formed for the purposes of setting up of a school and the petitioner no. 2 is the Managing Trustee of the petitioner no. 1. The petitioners had taken loan from the respondent State Bank of India Bikramganj Branch to the tune of Rs. 150.00 lakhs whereafter the petitioners had constructed the school building. In the month of March 2016 the petitioners had again applied for enhancement of loan and a further loan of a sum of Rs. three crores were sanctioned by the respondent Bank. Subsequently on account of non payment of the installments of the loan in question the loan account of the petitioners were declared N.P.A. The bank had then taken action for recovery of the entire loan amount and had filed O.A No. 295 of 2018 before the Debt Recovery Tribunal Patna under Section 19 of the Recovery of Debt and Bankruptcy Act Patna High Court CWJC No.197021 dt.08 12 2021 1993 and the case was decreed by the learned Tribunal vide order dated 02.02.2019 against the petitioners whereafter R.P No. 1619 was registered for recovery of decreed amount in terms of the said judgment. The learned senior counsel for the petitioner has submitted that the authorities of the Bank has suddenly taken the possession of the building in question on 05.08.2021 and locked the entire premises purportedly under section 13(4) of the ‘Sarfaesi Act 2002’. It is submitted that the petitioners are ready to liquidate the due amount in installments and enter into an amicable settlement with the respondent Bank hence the case of the petitioners be considered sympathetically in view of the fact that upon closure of the school in question the future prospect of the children would suffer. We had put a query to the learned senior counsel for the petitioners as to whether the petitioners are ready to pay even the outstanding amount of loan which is due and payable according to them i.e. a sum of Rs. 3.50 crores to which the learned senior counsel for the petitioner has failed to give any satisfactory reply Per contra the learned counsel for the respondent Bank has raised a preliminary issue with regard to maintainability of Patna High Court CWJC No.197021 dt.08 12 2021 the present writ petition inasmuch as the petitioners have a remedy of filing an application under section 17(1) of the ‘Sarfaesi Act 2002’ against the action taken by the respondent Bank under Section 13(4) of the ‘Sarfaesi Act 2002’ We have heard the learned counsel for the parties and perused the materials on record and find that the petitioners have failed to show their bona fide inasmuch as they are not ready to deposit any substantial amount out of the outstanding loan amount due and payable even according to them. We further find that the present writ petition is not maintainable and the appropriate remedy for the petitioner is to file appropriate appeal under Section 17 of the ‘Sarfaesi Act 2002’. In this regard we would refer to the judgment rendered by the Hon’ble Apex Court in the case of United Bank of India vs Satyawati Tondon reported in 9 SCC 620and the one reported in3 SCC 85(Mohit Kumar Shah J Mohit Kumar Shah J:

“Respondent will face jail time if he does not deposit the said amount”: Supreme Court, Part 2.

In the proceedings dated 09.08.2021, learned counsel submitted on behalf of the appellant that he was willing to pay compensation of Rs.3.00 lakhs to respondent No.2 for herself and the children and requested for about six months’ time to raise the money. Since respondent No.2 did not put an appearance despite service, learned counsel for the State was asked to verify the stand of respondent No.2. Learned counsel submitted that the police authorities had verified from respondent No.2 and she was agreeable to receive the compensation of Rs.3.00 lakhs. Further, on compensation being paid, she had agreed that if the sentence of the appellant is reduced and/or if he is granted the benefit of the Probation of Offenders Act, she has no objection. This was recorded in the proceedings held on 23.08.2021 and the certificate has been placed on record. The object of any criminal jurisprudence is reformative in character and to take care of the victim. It is towards this objective that Section 357 of the Code of Criminal Procedure is enacted in the statute. The objective of which is to apply whole or any part of the fine recovered to be applied on payment to any person of compensation for any loss or injury caused by the offence. In the present case, it is one of voluntarily offering the amount albeit to seek a reduction of sentence. In view of the submission made by the petitioner on 09.08.2021 requesting for six months’ time to make arrangement to deposit/pay the amount, it was directed that the appellant shall deposit with the trial court the amount of Rs.3.00 lakh on or before 28.2.2022 and subject to the deposit, the period of sentence undergone shall be treated as the sentenced period. The above-mentioned amount of Rs.3.00 lakh shall be apart from the requirement of paying fine of Rs.10,000/- directed by the trial court. We, however, make it clear that if the amounts are not deposited, the appellant will have to undergo the remaining part of the sentence of 3 years.

NON REPORTABLE IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO .894 OF 2021 … APPELLANT THE STATE OF JHARKHAND & ANR. …RESPONDENTS JUDGMENT SANJAY KISHAN KAUL J Hena Bibi respondent No.2 complainant claimed to be the legally married wife of the appellant the marriage having been solemnised on 8.2.2000 as per Muslim customs & rites. It may be noticed that the appellant was already married to one Mastra Bibi and he apparently had illicit relationship with respondent No.2 which culminated in their marriage The two parties are stated to have lived as husband and wife in the house of the appellant for about a year and a half and two children were born out of the said marriage It is the case of respondent No.2 that on the instigation of the first wife the appellant started mental and physical torture and made demands of dowry and respondent No.2 had to ultimately go back to her parents’ house It may be noticed that during this period that respondent No.2 conceived for the second time. It is not necessary to go into more details but suffice to say that the alleged demand of dowry resulted in PCR No.3106 being lodged in the Court of Sub Divisional Judicial Magistrate Pakur for offences under Section 498A of the Indian Penal Code The case went to trial and in terms of the judgment of the SDJM Pakur dated 30.1.2014 the appellant was held guilty and sentenced to three years of rigorous imprisonment with a fine of Rs.10 000 and in case of failure to pay the fine the appellant was directed to undergo further sentence of six months. The appellant preferred Criminal Appeal No. 07 2014 against the judgment of the SDJM which was dismissed vide judgment dated 02.09.2014 by the Principal District and Sessions Judge Pakur The appellant thereafter preferred a Criminal Revision against the said order being Criminal Revision No.1060 2014 and in terms of the impugned judgment dated 11 20.10.2020 the Criminal Revision was dismissed. The appellant thereafter preferred the Special Leave Petitionbefore this Court did duly surrender The appellant was called upon to surrender by this Court and he In the course of hearing of the SLP the petitioner appellant prayed for extension of the benefit of Probation of Offenders Act 1958 which was declined on 26.07.2021. However the Court expressed the view that it was not averse to consideration of reduction of sentence subject to the condition that the petitioner gave adequate compensation to respondent No.2 for herself and her children apart from whatever maintenance was being paid under Section 125 of the Code of Criminal Procedure 1973 In the proceedings dated 09.08.2021 learned counsel submitted on behalf of the appellant that he was willing to pay compensation of Rs.3.00 lakhs to respondent No.2 for herself and the children and requested for about six months’ time to raise the money. Since respondent No.2 did not put an appearance despite service learned counsel for the State was asked to verify the stand of respondent No.2. Learned counsel submitted that the police authorities had verified from respondent No.2 and she was agreeable to receive the compensation of Rs.3.00 lakhs. Further on compensation being paid she had agreed that if the sentence of the appellant is reduced and or if he is granted the benefit of the Probation of Offenders Act she has no objection. This was recorded in the proceedings held on 23.08.2021 and the certificate has been placed on record We have given thought to the matter. We have already noticed that keeping in mind the nature of the offence we had declined the benefit of the Probation of Offenders Act to the appellant. However if the petitioner appellant is showing remorse and is willing to make arrangements for respondent No.2 and his two children born out of the wedlock we would not like to come in the way of such an arrangement which should be beneficial to respondent No.2 and her children The object of any criminal jurisprudence is reformative in character and to take care of the victim. It is towards this objective that Section 357 of the Code of Criminal Procedure is enacted in the statute The objective of which is to apply whole or any part of the fine recovered to be applied on payment to any person of compensation for any loss or injury caused by the offence. In the present case it is one of voluntarily offering the amount albeit to seek a reduction of sentence We are informed that the appellant has now undergone about seven months of sentence and thus we are inclined to reduce the sentence to the period undergone in case the appellant pays to respondent No.2 for her benefit and her children’s benefit a sum of Rs.3.00 lakhs In view of the submission made by the petitioner on 09.08.2021 requesting for six months’ time to make arrangement to deposit pay the amount we direct that the appellant shall deposit with the trial court the amount of Rs.3.00 lakh on or before 28.2.2022 and subject to the deposit the period of sentence undergone shall be treated as the sentenced period The above mentioned amount of Rs.3.00 lakh shall be apart from the requirement of paying fine of Rs.10 000 directed by the trial court. We however make it clear that if the amounts are not deposited the appellant will have to undergo the remaining part of the sentence of 3 years On the deposit of the amount the trial court will take steps to release an amount of Rs.2.00 lakhs out of Rs.3.00 lakhs to respondent No.2 for herself and for her children. In order to secure the interest of the children a sum of Rs.50 000 each out of the remaining amount would be kept in an FDR with a nationalised bank for the benefit of the children. This amount will be released to them with accrued interest on attaining the age of 21 years The appeal is accordingly allowed to the aforesaid extent leaving the parties to bear their own costs Sanjay Kishan Kaul August 31 2021

Government is free to set terms of tender unless it is arbitrary, malafide or discriminatory: High Court of Jammu and Kashmir

The court will not interfere in the matter of terms and conditions of a tender issued by the government unless, they are blatantly discriminatory, arbitrary or of malafide nature. This was held in the judgement passed by a single member bench of the High Court of Jammu and Kashmir consisting of Justice Ali Mohammad Magrey in the case of Rural Contractors Welfare Association & Others v Union Territory of Jammu & Kashmir [WP(C) No. 1602/2021; CM No. 5391/2021] pronounced on 17th August 2021. The petitioner, Rural Contractors Welfare Association filed the present petition challenging the validity of Notice Inviting Tenders No. 59 of R&B/4727-37 dated 28th July 2021 and No. 60 of R&B/4899-4908 dated 29th July 2021. According to the petitioner, the impugned NITs had the condition that any interested contractor would need to upload card verification certificate and such a condition would allegedly deprive many contractors from participating in the process which lead to a reduction in competition. The petitioner further contended that allowing these NITs would be against the spirit of justice and fairness as it seriously prejudiced the rights and interests of the petitioners and would only benefit a few contractors. The counsel representing the respondent stated that the authority issuing a tender prescribes eligibility criteria to serve the best purposes; someone or the other’s interests are likely to be hurt, but this cannot be labelled as discriminatory or malafide in nature. The case of Tata Cellular V. Union of India [(1994)6 Supreme Court Case 651] was cited, where the Supreme Court of India stated that “The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness but must be free from arbitrariness not affected by bias or actuated by mala fides;”. The High Court observed that matters like the terms and conditions of tenders issued by the government came under administrative action and this court does not sit as the Court of Appeal in such a case.

HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR WP(C) No. 1602 2021 CM No. 5391 2021 Serial No. 124 Supplementary 1 List Dated: 17th of August 2021. … Petitioner(s) Rural Contractors Welfare Association & Ors. Mr Mohammad Ashraf Wani Advocate. Union Territory of JK & Ors. Through: Mr M. A. Chashoo AAG. … Respondent(s) Hon’ble Mr Justice Ali Mohammad Magrey Judge. By medium of the instant Petition the Petitioners have challenged the NIT No. 59 of R&B 4727 321 22 dated 28th of July 2021 and NIT No. 60 of R&B 4899 49021 22 dated 29th of July 2021. A direction is also sought in the name of the Respondents to allow all the Contractors to participate in the bidding process for the works which have been put to tender in terms of the aforesaid tender notices. Learned Counsel for the Petitioners submitted Respondents by incorporating the condition in the impugned NITs to the effect that all the Contractors shall upload card verification certificate has deprived most of the Contractors in participating in the process thereby WP(C) No. 1602 2021 CM No. 5391 2021 resulting in reduction of competition. It is further submitted that the aforesaid condition has seriously prejudiced the rights and interests of the Petitioners and that the same has been done only with a view to give benefit to some blue eyed Contractors. Heard the learned counsel for the parties perused the pleadings on record and considered the matter. At the very outset what requires to be stated is that as per settled legal position the tender issuing authority is the best judge of its interests needs and that it is always open to the said authority to suitably prescribe the eligibility criteria so as to best serve its purposes. Whenever a term condition is prescribed in the eligibility criteria it might hurt the interests of someone or the other but for that reason the said term condition in the eligibility criteria cannot be labelled as malafide or arbitrary. Besides the Courts are expected to exercise judicial restraint in interfering with the administrative action particularly in the matter of tender or contract. Ordinarily the soundness of the decision taken by the tender issuing authority ought not to be questioned but the decision making process can certainly be subject to judicial review. The soundness of the decision may be questioned firstly if the decision made is so arbitrary and irrational that the Court can say that the decision is such that no responsible authority acting WP(C) No. 1602 2021 CM No. 5391 2021 reasonably and in accordance with relevant law could have reached or second if the process adopted or decision made by the authority is malafide or intended to favour someone or third if the public interest is affected. In the case on hand the decision of the Respondents in fixing the terms and conditions in the impugned NITs cannot be said to be one where they have acted in a manner in which no responsible authority acting reasonably and in accordance with the relevant law would have acted. Furthermore a bare perusal of the pleadings on record does not indicate that the decision made by the authority is malafide or intended to favour someone. Likewise the third ground of public interest is also not affected in the present case because while it may be in public interest to have greater competition it is also in public interest that all the tender conditions are complied with as prescribed by the tender issuing authority and that there is no uncertainty in that area. Law on the subject of scope of judicial review in the matters of Contract is no more res integra. In case titled ‘Tata Cellular V. Union of India: 6 Supreme Court Cases 651’ at Paragraph No.94 Hon’ble the Supreme Court of the country while dealing with the issue similar to the one subject matter of the instant Petition evolved the following principles: 1. “The modern trend points to judicial restraint in administrative action 2. The Court does not sit as a court of appeal but merely reviews the manner in which the decision was made WP(C) No. 1602 2021 CM No. 5391 2021 3. The Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision without the necessary expe4rtise which itself may be fallible 4. The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not such decisions are made qualitatively by experts 5. The Government must have freedom of contract. In other words a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi administrative sphere. However the decision must not only be tested by the application of Wednesbury principle of reasonableness but must be free from arbitrariness not affected by bias or actuated by mala fides and 6. Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.” In case ‘Sterling Computers Limited V. M&N Publications Ltd:1 SCC 445’ the Apex Court at Paragraph No.12 has laid down as under: “In contracts having commercial element some more discretion has to be conceded to the authorities so that they may enter into contracts with persons keeping an eye on the augmentation of the revenue. But even in such matters they have to follow the norms recognized by courts while dealing with public property. It is not possible for courts to question and adjudicate every decision taken by an authority because many of the Government Undertakings which in due course have acquired the monopolist position in matters of sale and purchase of products and with so many ventures in hand they can come out with a plea that it is not always possible to act like a quasi judicial authority while awarding contracts. Under some special circumstances a discretion has to be conceded to the authorities who have to enter into contract giving them liberty to assess the overall situation for purpose of taking a decision as to whom the contract be awarded and at what terms. If the decisions have been taken in bona fide manner although not strictly following the norms laid down by the courts such decisions are upheld on the principle laid down by Justice Holmes that courts while judging the constitutional validity of executive decisions must grant certain measure of freedom of play in the joints to the executive." WP(C) No. 1602 2021 CM No. 5391 2021 Again the Apex Court in case titled ‘Directorate of Education Ors. V. Educomp Datamatics Ltd. And Ors: 4 SCC 19’ while applying the principles enunciated in Tata Cellular’s case at Paragraph No.12 observed thus: “12. It has been held in these decisions that the terms of the invitation to tender are not open to judicial scrutiny the same being in the realm of contract. That the Government must have a free hand in setting the terms of the tender. It must have reasonable play in its joints as a necessary concomitant for an administrative body in an administrative sphere. The Courts would interfere with the administrative policy decision only if it is arbitrary discriminatory malafide or actuated by bias. It is entitled to pragmatic adjustments which may be called for by the particular circumstances. The Courts cannot strike down the terms of the tender prescribed by the Government because it feels that some other terms in the tender would have been fair wise or logical. The Courts can interfere only if the policy decision is arbitrary discretionary or malafide.” On an appreciation of the law laid down above what comes to limelight is that the modern trend points to judicial restraint in administrative action and that the Court does not sit as a ‘Court of Appeal’ but merely reviews the manner in which the decision was made. It has also been declared that Court does not have the expertise to correct the administrative decision and that if a review of the administrative decision is permitted it will be substituting its own decision without the necessary expertise which itself may be fallible. Furthermore fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi administrative sphere and quashing administrative decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure. WP(C) No. 1602 2021 CM No. 5391 2021 It is thus settled that public authorities must be left with the same liberty as they have in framing the policies even while entering into contracts because many contracts amount to implementation or projection of policies of the Government. But it cannot be overlooked that unlike policies contracts are legally binding commitments and they commit the authority which may be held to be a State within the meaning of Article 12 of the Constitution of India in many cases for years. It is for this reason that the Courts have impressed that even in contractual matters the public authority should not have unfettered discretion. In contracts having commercial element some more discretion has to be conceded to the authorities so that they may enter into contracts with persons keeping an eye on the augmentation of the revenue. But even in such matters they have to follow the norms recognized by Courts while dealing with public property. It is not possible for the Courts to question and adjudicate every decision taken by an authority because many of the Government Undertakings which in due course have acquired the monopolist position in matters of sale and purchase of products and with so many ventures in hand they can come out with a plea that it is not always possible to act like a quasi judicial authority while awarding contracts. Under some special circumstances a discretion has to be conceded to the authorities who have to enter into contract by giving them liberty to assess the overall situation for purpose of taking a decision as to whom the contract be awarded and at what terms. If the decisions have been taken in bonafide manner although not WP(C) No. 1602 2021 CM No. 5391 2021 strictly following the norms laid down by the Courts such decisions are upheld on the principle laid down by Justice Holmes that Courts while judging the constitutional validity of executive decisions must grant certain measure of freedom of ‘play in the joints’ to the executive. Looking at the instant case in the above perspective the Petitioners have not been able to establish before the Court that the decision taken by the Respondents in fixing the terms and conditions of the impugned NITs is an arbitrary exercise of power or that the same was is malafide in nature. In ‘Jagdish Mandal v. State of Orissa: 14 SCC 517’ at Paragraph No.22 the Hon’ble Supreme Court held thus: “22. …. Therefore a Court before interfering in tender or contractual matters in exercise of power of judicial review should pose to itself the following questions: i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone Whether the process adopted or decision made is so arbitrary and irrational that the court can say: “the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached” ii) Whether public interest is affected. If the answers are in the negative there should be no interference under Article 226.” From a bare perusal of the pleadings placed on record it is more than apparent that the decision taken by the Respondents in fixing the terms WP(C) No. 1602 2021 CM No. 5391 2021 and conditions with respect to the impugned NITs was certainly not irrational in any manner whatsoever or intended to favour anyone. For all that has been said and done hereinabove I do not find any merit in this Petition. It entails dismissal and is accordingly dismissed along with the connected CM(s). No order as to costs. August 17th 2021 Judge Whether the Judgment is reportable Yes No. Yes No. Whether the Judgment is speaking

For an alleged abuse of dominant position, delineation of relevant market to set the boundaries of competition analysis: Competition Commission of India

Proper delineation of the relevant market is required to identify the competing alternatives offered to people and, as a result, the competitive restrictions encountered by the enterprise under investigation in a systematic manner. This entails determining the substitutable goods or services as well as defining the geographic scope within which such goods or services compete. This was observed in the matter of In Re: TT Friendly Super League Association And The Suburban Table Tennis Association and Ors.  [Case. No. 19 of 2021], before Hon’ble Chairperson Mr. Ashok Kumar Gupta, Members, Ms. Sangeeta Verma and Mr. Bhagwant Singh Bishnoi. The brief facts of the case are as follows; the Informant goes on to say that prior to its incorporation as an NGO, it used to regularly arrange friendly TT matches at various venues in Mumbai City, Mumbai Suburban, and Thane areas, with no cash prizes, referee, cup, medal, certificate, or any ranking of any kind. The Informant is mainly dissatisfied since it has been refused access to use the services of TT players as a result of the WhatsApp notice posted by the General Secretary of OP-1, as well as certain clauses of OP-3’s Memorandum of Association addressed to players/parents/coaches/clubs, to not take part in any unassociated institutions and to not play any unaffiliated organization’s tournaments, and it further mentioned that if any member club or academy does so, that club/academy would be restricted to participate in matches organized by the State/District Body and would also amount to suspension in TT tournaments. The Commission sought to first deal with the objection raised by the OP, which claimed that the Ops are not an ‘enterprise’ u/s 2(h) of the Competition Act. The Commission was of the opinion that the activities performed by OPs fall within the scope of the word “enterprise” as defined by the Act. According to the information, OPs organized/conducted TT tournaments, distributed prize money, trophies, medals, and certificates to TT players, held coaching camps, selected players to represent respective District/State/Country, and received sponsorships and donations, royalty, and advertising revenue, in addition to collecting yearly subscription fees. OPs also received sponsorships and revenue from advertisements, royalties, and media, as well as equipment support from manufacturers and the distribution of prize money, medals, trophies, and certificates to participants and players. Based on the relevant markets of the OPs, the Commission concluded that it enjoyed a dominant position u/s 4 of the Act. It then went on to examine the notice sent on WhatsApp and the Memorandum of Association. It was held by the Commission that, “The WhatsApp message posted, prima facie appears to contravene the provisions of Section 4(2)(c) of the Act, as it may result in denial of market access to the Informant and other similarly placed organizations….  On a plain reading of the aforesaid byelaws of OP-3 prima facie indicate that the same are unfair being restrictive in nature and as such prima facie appear to be anti-competitive in contravention of the provisions of Section 4(2)(a)(i) of the Act. Such conditions also prima facie noted to limit or otherwise restrict the provisions of services or markets therefor, and thereby also contravene the provisions of Section 4(2)(b)(i) of the Act besides violating the provisions of Section 4(2)(c) thereof, as the restrictions also deny market access to players as well as organizers……the impugned conduct may also be examined by the DG within the framework of Section 3 of the Act which prohibits anti-competitive agreements and inter alia mandates that no enterprise or association of enterprises or person or association of persons shall enter into any agreement which limits or controls production, supply, markets, technical development, investment or provision of services.” Click Here to Read the Order Judgement Reviewed by Vagisha Sagar    

COMPETITION COMMISSION OF INDIA Case No. 121 In Re: TT Friendly Super League Association 1204 D Wing Anuraddha Building Bharatkhand CHS Tilak Nagar Mumbai 400 089 The Suburban Table Tennis Association 303 Cosmos Court Opposite IOL Petrol Pump SV Road Vile Parle West Mumbai 400 056 Maharashtra State Table Tennis Association Sharada Centre 11 1 Erandawane Behind Padale Palace Pune 411004 Table Tennis Federation of India 1 12 3rd Floor DSIIDC Industrial Complex Near Udyog Nagar Metro Station Rohtak Road Delhi 110041 Opposite Party 1 Opposite Party 2 Opposite Party 3 CORAM Mr. Ashok Kumar Gupta Ms. Sangeeta Verma Mr. Bhagwant Singh Bishnoi Case No. 121 Order under Section 26(1) of the Competition Act 2002 1. The present Information has been filed by TT Friendly Super League Association TTFSL ‘the Informant’) under Section 19(1)(a) of the Competition Act 2002 ‘the Act’) against The Suburban Table Tennis Association Maharashtra Tennis Association MSTTA ‘Opposite Party 2’ ‘OP 2’) and Table Tennis Federation of India TTFI ‘Opposite Party 3’ ‘OP 3’) alleging contravention of the provisions of Sections 3 and 4 of the Act .The Opposite Parties 1 to 3 are hereinafter collectively referred to as Opposite Partiesin India as stated in the Objective Clauses of its Memorandum of Association and conducts friendly TT matches for its members around Mumbai City Mumbai Suburban and Thane District in Maharashtra as per the convenience of players and availability of venues without any concept of prize money referee cup medal certificate or ranking of any sort. OP 1 is a registered society and is the district body headquartered in Mumbai having an affiliation with the State Body with jurisdiction over Mumbai Suburban District only responsible for conducting open district ranking tournaments in Mumbai Suburban jurisdiction for the selection of players to represent the State as well as promotion of table tennis in its jurisdiction. OP 2 is the State Body headquartered in Pune Maharashtra having an affiliation with the National Federation responsible for conducting open state ranking tournaments in the State of Maharashtra as well as for selection of players from its affiliated districts to represent the State as well as promotion of table tennis within the State of Maharashtra. OP 3 is the National Sports Federation for the sport of table tennis in India recognized by the Ministry of Youth Affairs and Sports under the National Sports Code 2011 headquartered at Delhi and is a registered society under the Societies Registrations Act 1860 formed on 28.02.1961 responsible for conducting national ranking tournaments and selection Case No. 121 of players from States to represent India in various international competitions such as Olympics Commonwealth and Asian Games. OP 3 is also the apex body of the country recognized by International Table Tennis Federation and is also the affiliated member of Indian Olympic Association for regulation of the game of table tennis in India. It is stated by the Informant that it was incorporated as an NGO on 06.08.2020 for promotion of the sport of table tennis for charitable purposes. The Informant further states that prior to incorporation as an NGO it used to regularly organise friendly TT matches on Sundays under the same brand nameat different venues in Mumbai City Mumbai Suburban and Thane areas where players participate in friendly TT events with no prize money referee cup medal certificate or any ranking of any sort. 4. The Informant further states that instead of appreciating the activities of the Informant to promote the sport of TT the General Secretary of OP 1 i.e. Mr. Sameer Bhate posted a circular notice on 30.10.2020 on a “Notices Only Masters Veterans” WhatsApp group addressed to players parents coaches clubs not to join any unaffiliated organisations and not to play any unaffiliated organisation’s matches and it further stated that if any member club or academy enters into any arrangement with any other unaffiliated TT body their club academy would not be allowed to participate in any of the tournaments that the District body or State body organizes and will result in suspension non acceptance of their entries in TT tournaments. As a consequence of the OP l’s notice many suburban players refused to register as members of the Informant and the players who had earlier registered with the Informant did not join the Informant by paying the one time lifetime membership fee of Rs. 500 . It is further stated by the Informant that to get complete clarity regarding the illegal notice issued by OP 1 the Informant sent objection letters to OP 1 OP 2 and OP 3 on their respective official e mail addresses asking OP 2 and OP 3 to intervene in the matter. However no reply was received by the Informant from OPs. Case No. 121 In addition the Informant has alleged certain clauses of OP 3’s Memorandum of Association related to the definition of tournament sanction for open tournament restriction of players from participating in any unrecognised tournament and right to prohibit unauthorised tournaments by Executive Committee of OP 3 as anti competitive. 7. The Informant has also alleged nexus and collusion by and between the OPs in as much as Mr. Rajeev Bodas President of OP 2 also holds a seat in the Executive Committee of OP 3 as Vice President and similarly Mr. Prakash Tulpule Honorary Secretary of OP 2 is also Joint Secretary of OP 3. 8. The Commission considered the Information in its ordinary meeting held on 11.08.2021 and decided to forward a copy thereof to the Opposite Partieswith a direction to file their reply thereto by 10.09.2021 with an advance copy to the Informant. The Informant was thereafter allowed to file its response(s) to such replies of OPs within 01 week of receipt with advance copies to OPs. From the records it is observed that only OP 1 has filed its reply and the Informant has filed its rejoinder to the said reply of OP 1. OP 2 and OP 3 have not filed their replies. 9. OP 1 in its reply stated that it is not covered under the definition of ‘enterprise’ as given in Section 2(h) of the Act as it is not carrying out any activity that falls under the category of production storage supply distribution acquisition or control of articles or goods or provisions of services investment or is in the business of acquiring holding underwriting or dealing with shares debentures or other securities of any other body corporate. It was further submitted that members of OP 1 and the Informant are not “consumers” as defined under Section 2(f) of the Act. It was also emphasized that the Informant has no locus standi to challenge any of the provision of the Memorandum of Association of OP 3 Association. 10. Further it was pointed out that the Informant is not a club or a sports organization which can be recognized or affiliated with the OPs. The Director of the Informant is a table tennis enthusiast and cannot be permitted to run parallel associations in Case No. 121 competition with the recognized body as it may dilute frustrate the objectives of recognized associations. 11. Lastly it was submitted that in order to organize and to bring discipline in the sports and to avoid destructive competition amongst players there is a prohibition for players from participating in any tournament which is not sanctioned approved. All the associations are empowered to take disciplinary action against the players contravening the rules and regulations formulated under the Memorandum of Association. OP 1 however denied that it has passed any resolution against the Informant or its members. It was pointed out that the Informant has been organising the commercial competitions and only unseeded players are participating in its events. Due to non response from the seeded players the Informant has filed the present unwarranted litigation and has also been spreading rumors on social media. 12. The Informant in its rejoinder pointed out that there is a catena of cases of sports federations bodies already decided by the Commission on the issue of limiting controlling the provision of services restricting market access and abuse of dominant position. The Informant on the issue of locus standi contended that if any illegal bylaws exists in Memorandum of Association of any of the OPs which is in violation of the provisions of the Act then the challenge to such illegal laws by any person association body clearly falls within the jurisdiction of the 13. The Informant also stated that OP 1 conducts district and state ranking selection tournaments in its jurisdiction distributes prize money trophies medals certificates to TT players and selects players to represent their respective districts besides receiving sponsorships donations royalty etc. and also collects yearly subscription fees from players in its jurisdiction as also clubs fees in the sub urban district for inter club tournaments. Based on this it was pointed out that such revenue generating activities being economic in nature bring OP 1 within the purview of the term ‘enterprise’ as defined in Section 2(h) of the Act. Case No. 121 14. Lastly on the issue of organisation of commercial tournaments and not having access to seeded players the Informant submitted that it has not organised any commercial competition tournaments and all the events conducted so far have had no prize money medal certificate or even referee. The Informant has also denied that only unseeded players are playing in its leagues and stated that it does not distinguish between seeded and unseeded players at all. The Informant also pointed out that the notice issued by OP 1 via WhatsApp dated 30.10.2020 restricts all players from joining the Informant and does not differentiate between seeded and unseeded players. 15. The Commission considered the Information and other material available on record and based on the averments and allegations made in the Information it is observed that the Informant is primarily aggrieved by the fact that it has been denied access to utilise the services of TT players because of the WhatsApp notice posted by the General Secretary of OP 1 as well as certain clauses of OP 3’s Memorandum of Association which shall be detailed in the later part of this order as violative of the provisions of the Act. 16. Before examining the issues projected in the Information the Commission deems it appropriate to deal with the preliminary objection raised by OP 1 that since it is not involved in any commercial activity it is not an ‘enterprise’ within the meaning of the term as defined in Section 2(h) of the Act and as such it cannot be proceeded against under the Act. 17. In this regard it is sufficed to note that Section 2(h) of the Act defines ‘enterprise’ as including inter alia any person or Department of the Government which is engaged in any activity relating to the production storage supply distribution acquisition or control of articles or goods or the provision of services of any kind. The definition is very wide in its amplitude and covers all activities of specified nature of any kind. Further as per Section 2(u) of the Act ‘service’ means service of any description which is made available to potential users and includes the provision of services in connection with business of any industrial or commercial Case No. 121 matters such as banking communication education financing insurance chit funds real estate transport storage material treatment processing supply of electrical or other energy boarding lodging entertainment amusement construction repair conveying of news or information and advertising. 18. The thrust of the definition of the term ‘enterprise’ is on the economic nature of the activities discharged by the entities concerned. It is immaterial whether such economic activities were undertaken for profit making commercial purpose or for philanthropic purpose. Thus even non commercial economic activities would be subject to the discipline of the Act as the Act does not distinguish economic activities based on commercial or non commercial nature thereof. In ascertaining as to whether an entity qualifies to be an ‘enterprise’ the Commission examines this from a functional rather than a formal approach. 19. Moreover it is also pertinent to point out that Section 3 of the Act prohibits anti competitive agreements and inter alia mandates that no enterprise or association of enterprises or person or association of persons shall enter into any agreement in respect of production supply distribution storage acquisition or control of goods or provision of services which causes or is likely to cause an appreciable adverse effect on competition. This provision does not confine the entities which are subject to this prohibition to ‘enterprise’ as even the ‘person’ and ‘association of persons’ have been included within its purview. Further the specified conduct of such entities in Section 3(3) of the Act is presumed to have an appreciable adverse effect on competition. 20. In the aforesaid statutory backdrop if the Information is examined the Commission is of prima facie opinion that the activities discharged by OPs bring them within the purview of the term “enterprise” as defined under the Act. In this regard from the Information it is observed that OPs organise conduct TT tournaments distribute prize money trophies medals certificates to TT players camps District State Country respectively and receive sponsorships and donations Case No. 121 royalty advertising revenue besides collecting yearly subscription fees. OPs also receive sponsorships and revenue from advertisements royalty and media receive equipment support from equipment companies andgive away prize money medals trophies and certificates to participants and players. 21. In the view of statutory framework defining ‘enterprise’ as detailed above and keeping in view the nature of functions performed by OPs as adumbrated supra OPs prima facie are held to be ‘enterprise’ within the meaning of the term as defined in Section 2(h) of the Act. 22. Having held OPs to be an ‘enterprise’ the Commission now proceeds to assess the impugned conduct of OPs within the parameters of Section 4 of the Act which prohibits abuse of dominant position by undertakings in the relevant market. 23. In this regard first the relevant market needs to be defined and thereafter the dominance of the enterprise or group concerned has to be ascertained therein before proceeding to examine the alleged abusive conduct. 24. In any case of alleged abuse of dominant position delineation of relevant market is important as it sets out the boundaries of competition analysis. Proper delineation of relevant market is necessary to identify in a systematic manner the competing alternatives available to the consumers and accordingly the competitive constraints faced by the enterprise under scrutiny. The process of defining the relevant market is in essence a process of determining the substitutable goods or services as also to delineate the geographic scope within which such goods or services compete. 25. In the instant case looking at the nature of allegations and the issues arising therefrom in light of the statutory scheme the Commission prima facie assesses the relevant product market as market for organization of table tennis leagues events tournaments. Further as TT players from any part of India may participate in the events organised by the Informant the relevant geographic market may be taken as whole of India. Case No. 121 26. Accordingly prima facie the relevant market in the instant case for assessment of abusive conduct appears to be ‘market for organization of table tennis leagues events tournaments in India’. 27. On the issue of dominance of OPs in the afore delineated relevant market the Commission notes that OPs are organised in the pyramidal structure governing and regulating the sport of table tennis in India from the district to the national level. OP 1 is the district body having affiliation with the State body with jurisdiction over Mumbai Suburban District only. OP 2 is stated to be the State body headquartered in Pune Maharashtra having affiliation with the National Federationfor the sport of table tennis in India recognized by Ministry of Youth Affairs and Sports under the National Sports Code 2011 headquartered at Delhi and is a registered society under the Societies Registrations Act 1860 formed on 28.02.1961 responsible for conducting national ranking tournaments and the selection of players from States to represent the country in various international competitions such as Olympics Commonwealth and Asian Games. OP 3 is the apex body of the country recognized by International Table Tennis Federation and is also an affiliate member of Indian Olympic Association for regulation of game of table tennis in India. As such all the OPs are linked and affiliated to each other in the pyramidal structure. They are responsible for representing coordinating administering marketing and developing the sport. Hence in the given eco system of TT at the national level prima facie it appears that OPs hold a dominant position in the relevant market as delineated supra. 28. As regards the abusive conduct the Informant has submitted a self certified true screenshot capture of the WhatsApp message posted by the General Secretary of OP 1 on 30.10.2020 addressed to players coaches clubs academies restricting them from joining playing the non affiliated clubs organizations and stating that non adherence to the said direction will result into their suspension non acceptance Case No. 121 of their entries in TT Tournaments. OP 1 in its reply has also not denied the WhatsApp message. 29. From the Information it is also noted that not only the Informant but the players are also aggrieved of such conduct of OP 1 which is evident from an online petition started and signed by 50 60 players of the Mumbai Suburban jurisdiction on website www.change.org entitled “TSTTA Plz don t Punish TT Players” dated 06.11.2020 requesting OP 1 to withdraw the impugned notice. 30. The Commission notes that WhatsApp message posted by the General Secretary of OP 1 on 30.10.2020 addressed to players coaches clubs academies appears to restrict them from joining playing the non affiliated clubs organizations and further states consequences flowing from non adherence thereof by way of suspension non acceptance of their entries in TT Tournament. This prima facie appears to contravene the provisions of Section 4(2)(c) of the Act as it may result in denial of market access to the Informant and other similarly placed organisations. 31. The Commission has also considered the impugned clauses of MoA of OP 3 and specifically clause 27(a) which provides for “sanction for open tournament” by stating that “sanction to hold an open tournament shall only be given by an Association to a District unit in whose jurisdiction the club is situated”. Further clauses 28(a) andof MoA provide as follows: a) “No player of the Federation shall take part in any open tournament which has not been sanctioned or which has been prohibited by the Council or by the Committee of any affiliated association and the club staging a recognised open tournament shall not receive or accept the entry of any player who has been prohibited from taking part in any open tournament or competition” b) “Any player taking part in an open tournament which has not been recognised by an Association if held within its jurisdiction shall be suspended or debarred from taking part in any open tournament held under the auspices of an Case No. 121 Affiliated Association provided that the committee may re instate a player for good cause shown”. 32. On a plain reading of the aforesaid byelaws of OP 3 prima facie indicate that the same are unfair being restrictive in nature and as such prima facie appear to be anti competitive in contravention of the provisions of Section 4(2)(a)(i) of the Act. Such conditions also prima facie noted to limit or otherwise restrict the provisions of services or markets therefor and thereby also contravene the provisions of Section 4(2)(b)(i) of the Act besides violating the provisions of Section 4(2)(c) thereof as the restrictions also deny market access to players as well as organisers. 33. Resultantly the Commission directs the DG to cause an investigation to be made into the matter under the provisions of Section 26(1) of the Act. The Commission also directs the DG to complete the investigation and submit the investigation report within a period of 60 days from the receipt of this order. 34. The Commission is also of the opinion that the impugned conduct may also be examined by the DG within the framework of Section 3 of the Act which prohibits anti competitive agreements and inter alia mandates that no enterprise or association of enterprises or person or association of persons shall enter into any agreement which limits or controls production supply markets technical development investment or provision of services.The impugned acts of OP 1 in communicating its decision vide WhatsApp messages prima facie seems to limit or control provision of services and thereby stand captured within the framework of Section 3(1) read with Section 3(3) of the Act. Also the byelaws of OP 3 as discussed supra also prima facie appear to contravene the Section 3(1) read with Section 3(3)(b) of the Act as the same apparently limit and control the markets and provision of services. 35. It is made clear that nothing stated in this order shall tantamount to a final expression of opinion on the merits of the case and the DG shall conduct the Case No. 121 investigation without being swayed in any manner whatsoever by the observations made herein. 36. The Secretary is directed to send a copy of this order along with the material available on record to the DG forthwith. Ashok Kumar Gupta Sangeeta Verma Sd Sd Sd Bhagwant Singh Bishnoi New Delhi Date: 17 11 2021 Case No. 121

Decree granting restitution of conjugal rights can be denied without a justifiable cause: High court of Calcutta

In absence of any cogent or corroborative evidence in support of the claim of the appellant, it can be held that the appellant deserted the respondent without any justifiable cause. This was decided in the case of Mousami Sarkar vs. Subhendu Sarkar [F.M.A.T. 624 OF 2016] by Hon’ble Justice Arindam Sinha and Hon’ble Justice Suvra Ghosh in the High Court of Calcutta. The facts of the case are that the parties were married according to Hindu rites and after a few days the appellant created pressure upon the respondent to reside in her house as “Ghar Jamai” and started visiting her parental home frequently. She was always reluctant to return to her matrimonial home. The respondent/husband was, therefore, constrained to file the application under section 9 of the Hindu Marriage Act, 1955, before the learned trial court praying for restitution of conjugal rights. the trial court, by the judgment impugned, decreed the suit in favour of the respondent/husband. Being aggrieved by the said judgment and decree, the appellant/wife has preferred the present appeal praying for dismissal of the suit before the learned trial court. The counsel for the respondent/husband has supported the impugned judgment and has submitted that the appellant left her matrimonial home with the daughter voluntarily and without any justifiable cause and he is ready and willing to resume marital life with her. The court put reliance on the case of Anuradha Samir vs. Vennangot Mohandas Samir (2015) 16 SCC 596 where in it was held “the appellant left her matrimonial home with the daughter voluntarily and without any justifiable cause and husband is ready and willing to resume marital life with her, then respondent is directed to resume her conjugal life with the 5 petitioner husband within one month from the date of this order.” She has stated that her husband inflicted severe mental torture upon her three year old daughter and herself and they were made to reside in a tin shed room for which they fell seriously ill. As the respondent was reluctant to provide medical assistance to the 8 child, she went back to her parental home with her daughter. She once intends to resume conjugal life with her husband, again says that she will do so only if her husband resides with her in the property gifted by her father. It was further stated that the medical certificate does not inspire confidence of this court. no impediment to hold that no case has been made out by the appellant to indicate that she was constrained to leave the respondent or was rather driven out of his house and did not withdraw from his society without any reasonable cause. The court finally stated that in absence of any cogent or corroborative evidence in support of the claim of the appellant, it can be held that the appellant deserted the respondent without any justifiable cause. It was also observed that her allegation of cruelty is not substantiated by sufficient evidence. The appeal is devoid of merit and be dismissed.

IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE The Hon’ble JUSTICE ARINDAM SINHA The Hon’ble JUSTICE SUVRA GHOSH F.M.A.T. 624 OF 2016 I.A. NO. CAN 1 OF 2016(Old No. CAN 5241 OF 2016) CAN 17CAN 19CAN 21 Smt. Mousami Sarkar Subhendu Sarkar For the Appellant : Mr. Deb Dutta Basu Adv. Mr. Pampa DeyAdv. Ms. Sangita Banerjee Adv. For the Respondent: Mr. Tapan Dutta Gupta Adv. Mr. Parvej Anam Adv. Mr. Sandip Dinda Adv. Heard on : 9th March 2021 Judgment on : 19th March 2021 SUVRA GHOSH J. : 1. The appeal is directed against judgment dated 30 03 2016 passed by the Learned Additional District & Sessions Judge First Court Tamluk Purba 2 followed it. Medinipur in Matrimonial Suit No. 04 of 2015 and the decree that 2. The parties were married according to Hindu rites and customs on 23 11 2012 and the appellant wife accompanied the respondent to his house. After a few days the appellant created pressure upon the respondent to reside in her house as “Ghar Jamai” and started visiting her parental home frequently. She was always reluctant to return to her matrimonial home. Finally on 27 12 2013 the appellant left for her parental home along with her belongings for good and several attempts by the respondent to bring her back failed. She expressed that she did not intend to lead a conjugal life with her husband. The respondent husband was therefore constrained to file the application under section 9 of the Hindu Marriage Act 1955 before the learned trial court praying for restitution of conjugal rights. 3. The appellant wife contested the suit by filing written statement wherein she denied all the material allegations of her husband and submitted that her father gifted ornaments articles furniture and cash of Rs. 50 000 to the couple during their marriage and the parties led a happy conjugal life together. Due to insufficient accommodation in her matrimonial home the appellant’s father gifted them a piece of land by virtue of registered deed of gift on 02 01 2013 and also constructed a single storied house therein for them. The appellant further contended that a girl child was born to them on 02 02 2014 following which the respondent and his 3 parents inflicted physical and mental torture upon the appellant on trivial issues. They also demanded Rs. 1 00 000 from her father and on her denial they continued to assault and insult her and finally drove her out of their house on 10 08 2014 along with her daughter. Several efforts of reconciliation between the parties failed for which the appellant has been residing in her parental home under compelling circumstances. The appellant wife prayed for dismissal of the suit. 4. Upon hearing the parties and considering the evidence on record the trial court by the judgment impugned decreed the suit in favour of the respondent husband. Being aggrieved by the said judgment and decree the appellant wife has preferred the present appeal praying for dismissal of the suit before the learned trial court. 5. Learned counsel appearing for the appellant has drawn the attention of the court to the fact that both the parties having their respective houses in the same locality there was no question of pressurizing the respondent to reside in the appellant’s paternal home as “Ghar Jamai”. It was only the desire of her father that the parties should stay in the house gifted by the appellant’s father so that they could live in a peaceful and congenial atmosphere and maintain good relationship with their respective parents. The appellant was driven out of her matrimonial home by the respondent and did not voluntarily withdraw herself from his company. She was subjected to physical and mental cruelty by her husband in her matrimonial home and has no reasonable ground to resume conjugal life with him. In support of his contention learned counsel has placed reliance on the authority in Ravi Kumar vs. Julmi Devi reported in4 SCC 476 and Vennangot Anuradha Samir vs. Vennangot Mohandas Samir reported in16 SCC 596. 6. Learned counsel for the respondent husband has supported the impugned judgment and has submitted that the appellant left her matrimonial home with the daughter voluntarily and without any justifiable cause and he is ready and willing to resume marital life with 7. At the outset it is necessary to refer to an inadvertent error which has crept into the last pageof the judgment impugned. The operative portion of the judgment is set out: Hence it is O r d e r e d that the Matrimonial Suit under Section 9 of the Hindu Marriage Act 1954 be and the same is decreed on contest against the respondent wife without any order as to cost. Petitioner namely Subhendu Sarkar do get a decree for restitution of conjugal rights against the respondent. Respondent namely Mousumi Sarkar is directed to resume her conjugal life with the petitioner husband within one month from the date of this order. In the same page the learned trial court has stated “So considering all aspects I do not feel it justified that an order of restitution of conjugal rights would be a positive solution or an efficacious relief to eliminate the controversy forever. So it will not be quite pragmatic and rational to pass a decree for restitution of conjugal rights.” This observation of the court is contradictory to the decree granted. However the entire judgment including appreciation of evidence and derivation of inference are in conformity with the decree granted. Therefore the stray observation of the court in the earlier part of page 8 can be safely construed as an inadvertent error whereby a negative expression has been wrongly used by the court which is contrary to the judgment and decree and can be safely ignored. 10. Turning to merits prayer for restitution of conjugal rights should be considered on the anvil of the respondent’s claim that the appellant withdrew from his society without any reasonable excuse. It is the case of the appellant wife that she was subjected to torture in her matrimonial home and driven out therefrom with her daughter on 10 08 2014. The respondent husband on the other hand has urged that the appellant voluntarily withdrew from his society and left for her parental home on 27 12 2013. 11. Admittedly the appellant’s father gifted a piece of land in favour of the parties and constructed a single storied house therein for the parties to shift to that house as according to the appellant there was dearth of accommodation in her matrimonial home. It is admitted by the appellant’s father Ashok Kumar Singha in his evidence before the learned trial court that the deed of gift is bereft of any averment with regard to dearth of accommodation in the respondent’s house. Therefore it can be inferred that the gift was made with the desire and intention that the parties would stay in the said house admittedly situated near the appellant’s parental home away from the respondent’s parents. In fact the appellant has candidly stated before the learned trial court that she will reside with her husband only if her husband resides in the plot of land gifted to them by her father. The intention is as clear as daylight. 12. The appellant has tried to impress upon the court that she was subjected to cruelty in her matrimonial home and was driven out therefrom. Strangely she refrained from lodging any complaint before any authority with regard to such incident or attempting to reconcile with her husband claim maintenance or the like and sat tight over the matter until the suit was filed by the respondent. In absence of any cogent or corroborative evidence in support of the claim of the appellant it can be held that the appellant deserted the respondent without any justifiable cause. The authorities in Vennangot Anuradha Samirdeals with the duty of the husband to honour the wife and take care of all her comfort health and safety. Ravi Kumar speaks about desertion and cruelty. There is no quarrel with the proposition of law herein. But the proposition is not of any assistance to the appellant as her allegation of cruelty is not substantiated by sufficient evidence. 13. Another subsequent fact is relevant. In course of pendency of the present appeal a coordinate bench of this court advised reconciliation. In this connection the appellant sought to place on record the medical document of her daughter issued on 24 03 2017 and complaint lodged by her before the police on 18 04 2017 as additional evidence. The respondent has not raised objection to the appellant’s prayer. The documents in question were not in existence when the decree appealed against was passed and in our considered view are required to be produced to enable us to pronounce judgment. 14. In adducing additional evidence before this court the appellant has stated that in compliance with the order of the court a mutual settlement was arrived at between the parties and their respective parents and the appellant went to her matrimonial home with her daughter on 09 03 2017. She has stated that her husband inflicted severe mental torture upon her three year old daughter and herself and they were made to reside in a tin shed room for which they fell seriously ill. As the respondent was reluctant to provide medical assistance to the child she went back to her parental home with her daughter on 23 04 2017 got her checked by a paediatrician and returned to her matrimonial home two three days thereafter. The appellant has further alleged that the respondent demanded Rs. 1.5 lakhs from her as reimbursement of expenses incurred by them on litigation and on 09 04 2017 she was again driven out. The appellant has produced copy of treatment sheet and complaint lodged by her before Panskura Police Station. The treatment sheet of her daughter Oindrila Sarkar dated 24 03 2017 reveals that the child was treated for constipation. The complaint also says that the child was unable to adapt to the new ambience of her father’s house and fell ill due to the heat of the tin shed room where she was accommodated. There is no allegation as such against the respondent or his family members qua the child. The contemporaneous medical document also does not suggest any other illness except constipation. 15. The appellant has stated in her application that she went to her matrimonial home on 09 03 2017 whereas the date appears to be on 12th March 2017 in the complaint. Though she claims to have been driven out of her matrimonial home on 09 04 2017 she lodged the complaint on 18 04 2017 the delay remaining unexplained. The stance of the appellant at different stages is contradictory. She once intends to resume conjugal life with her husband again says that she will do so only if her husband resides with her in the property gifted by her father. It is also inconceivable that there was no demand of money during her stint in her matrimonial home till 24th March 2017 and such demand was suddenly raised by her mother in law during the second phase of her stay which reached such a height that she was thrown out of the house. It is not improbable that the complaint was lodged before the police only for the purpose of documentation of certain facts and incidents which would lend support to the oral version of the appellant. The document does not inspire confidence of this court. 16. Upon consideration of the entire material available before us we have no impediment to hold that no case has been made out by the appellant to indicate that she was constrained to leave the respondent or was rather driven out of his house and did not withdraw from his society without any reasonable cause. The appeal is devoid of merit and be dismissed. 17. Before parting with the record it is pertinent to record that a coordinate bench of this court in the present appeal directed the respondent to clear all arrears of maintenance to the tune of Rs. 2 000 per month for the appellant and Rs. 1 500 per month for the child by 10 08 2018 along with Rs. 5 000 as cost of the application vide order dated 10 07 18. We hope and trust that such order shall be complied with by the forthwith if not done earlier in order to avoid 19. F.M.A.T. 6216 be dismissed. 10 20. Connected applications being I.A. no. CAN 1 OF 2016(Old No. CAN 5241 of 2016) CAN 17CAN 19and CAN 21 are disposed of. 21. Judgment dated 30 03 2016 passed by the Additional District & Sessions Judge First Court Tamluk Purba Medinipur in Matrimonial Suit No. 15 be affirmed. 22. There will however be no order as to costs. 23. A copy of this judgment be sent to the learned trial court for information 24. Urgent certified website copies of this judgment if applied for be supplied to the parties expeditiously on compliance with usual and necessary action. (Suvra Ghosh J.)

The District Commission failed to notice facts that prove deficiency in service, thus its order is contrary to facts and law: Karnataka State Consumer Disputes Redressal Commission

The District Commission’s ruling in favor of the Opposition Party was held to be incorrect by the State Commission as it failed to consider all facts on record that clearly showed that the Opposite Party had provided a deficient service to the Complainant. This was observed in the matter of Sri. Lakshminarayan v. Glober Cyber Security Response, [Appeal No. 583/2021] before the Hon’ble President Justice Huluvadi G Ramesh and Judicial Member, Mr. K.B. Sangannanavar. An appeal under section 41 of the Consumer Protection Act, 2019. The facts of the case involve the complainant raising a consumer complaint against the Respondent for deficiency in service by not securing his laptop from hackers and seeking compensation of Rs. 35,000 and Rs. 1 Lakh as damages. The Commission then proceeded with the examination of the submitted documents. The Complainant had approached Truth Labs to run tests to ascertain the status of his devices, as he was not a technical expert. The Certificate and Report from Truth Labs confirmed that his device, email and social media account were indeed hacked. Furthermore, his mobile phone was also being remotely monitored, unknown devices were connected to his Wi-Fi network. However, such intrusion was not found in his laptop.  It is this report that was overlooked by the District Commission. Throughout the proceedings the Respondent been absent and orders have been passed exparte, which made it difficult for the Commission to arrive at a reasonable conclusion. Thus, the State Commission was of the view that, “the Complainant is entitled for refund of the amount. However, he could not be said entitled for Rs.1 lakh towards damages as claimed. Accordingly, we proceed to allow the appeal filed U/s.41 of CPA 2019. Consequently, set aside the impugned order dtd.30.06.2021 passed in CC.No.1004/2020 by 1st Addl., District Consumer Disputes Redressal Commission, Bengaluru Urban District and the Complaint filed by the Complainant is allowed in part and directed the OP to refund Rs.35,000/- along with interest at 6% p.a. from the date of receipt till realization and to pay Rs.10,000/- towards compensation and Rs.5,000/- towards litigation cost within 60 days from the date of receipt of this order, failing which, the amount so awarded shall carry interest at 9% p.a. from the date of complaint till realization.”

1 Appeal No.583 2021 Date of Filing : 12.08.2021 Date of Disposal : 02.11.2021 BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION BENGALURUDATED THIS THE 02nd DAY OF NOVEMBER 2021 HON’BLE Mr. JUSTICE HULUVADI G RAMESH : PRESIDENT Mr. K.B.SANGANNANAVAR : JUDICIAL MEMBER APPEAL NO.583 2021 Sri.Lakshminarayan.K S o Krishnaswamy.R Aged 69 years R at No.36 Mallige Apartments 4th Main Road 11th Cross Malleshwaram Bengaluru 03. ..Appellant s Rep. by Party In Person) Global Cyber Security Response Team Pvt. Ltd. R at No.134 1st Floor 7th Main Road Near Maiyas Restaurant 4th Block Jayanagar Bengaluru 11. Rep. by its Director Manager. ..Respondent s 2 Appeal No.583 2021 O R D E R BY Mr. K.B.SANGANNANAVAR : JUDICIAL MEMBER 1. This is an Appeal filed U s 41 of Consumer Protection Act 2019 by the Complainant aggrieved by the impugned order dated 30.06.2021 passed by 1st Addl. District Consumer Disputes Redressal Commission Bengaluru Urban C.C.No.1004 2020 (for short District Forum Commission and the parties as arrayed in the consumer complaint). 2. The Commission heard learned counsel Complainant Appellant on admission and perused impugned order dtd.30.06.2021. Now the point that would arisen for consideration is whether impugned order passed by Commission below is contrary to the facts and law required to be interfered in this appeal for the grounds set out in the appeal memo 3. In so far as issuance of notice of this appeal is concerned served on OP yet he remained absent as such he is recorded as absentee party. The record found with this appeal in particular the impugned order also discloses OP Respondent remained absent before the commission below and he is placed exparte. 3 Appeal No.583 2021 4. The Complainant has raised consumer complaint against OP alleging deficiency in service in not protecting the devices given to him from hacking and sought for refund of Rs.35 000 paid towards said services. He also sought for award damages to the extent of Rs.1 lakh which off course negated by the Commission below for the reasons recorded in the paragraph 6 of the impugned order. 5. Let us examine Ex P1 3 receipts through which Complainant has paid Rs.35 000 to avail the services of OP Ex P2 is the receipt for having received laptop Ex P3 is acknowledgement for having received the said laptop Ex P4 is a forwarding letter Ex P5 is the copy of the report from Truth lab Ex P6 is the copy of the certificate issued by Truth lab U s.65 B of the Indian Evidence Act pertaining to the supply of copy of data downloaded from the Twitter account submitted by Mr.Lakshminarayana. Thus upon examination of these documents Commission below of the view “ if at all according to the Complainant the said devices were given to OP for from cyber attacks hacking virus infection and reinstalling the operating system with secure fire war there should have been an agreement or commitment letter given by OP agreeing to perform a particular act. Though it is stated that he 4 Appeal No.583 2021 has given comprehensive 15 points of what it has nothing has taken place to one Shuba that same is also not produced. If the same has been produced this Commission could have come to the conclusion that OP assured and undertook to do a particular act and the same was not done to hold a deficiency in service.” In our view such reasons could not be said sound reasons as the Complainant has availed the service of OP by paying Rs.35 000 for cyber security. As such as the Complainant did not have any technical background he rightly approached M s.Truth labs to do suitable tests to confirm the actual status of the devices and to this end he had submitted a Samsung mobile and Dell laptop to them. The Complainant has requested them to examine his email accounts and social media accounts and confirm if they were also hacked. Accordingly M s.Truth lab confirmed that the devices were accessed and remote monitored in other words hacked. However the Commission below failed to examine the expert report of M s.Truth lab who confirmed that Complainant‟s email account and social media account also continued to remain hacked. It is found from the record that the Truth lab had benefit of examining devices furnished to it which can be found in their report. It is also found in this report as to the expert profile nature of examination thereby recorded 5 Appeal No.583 2021 observations and findings by physical examination of the media along with mobile phone analysis forensic bit stream imaging hard disk analysis email account and social media account analysis thereby further recorded inference as „the data retrieved from the mobile phone marked Q1 indicated that some devices not recognized or used by the user were found to be using the wifi network connected with this mobile phone and hence the possibility of the wifi being compromised cannot be ruled out.‟ Further Truth lab report along with Certificate U s.65 B of the Indian Evidence Act reporting the data retrieved from the mobile phone marked Q1 indicated that the possibility of remote monitoring using the connected wifi network cannot be ruled as the data indicated signs of unknown devices connected with the wifi network as well as the fact that the screen of the mobile phone had been mirrored with a personal computer other than the laptop marked Q2. It is further informed that investigation of this nature is beyond the scope of private agencies and the same may be initiated through Law Enforcement agencies. The hard disk marked Q2a of the laptop marked Q2 did not indicate any signs of possible intrusions. Thus considering this report in consideration of inference drawn by the Truth lab in this consumer complaint Complainant has 6 Appeal No.583 2021 been availed the service of OP as to be held proved deficiency in service on the part of OP in some respect which is not at all examined by the Commission below. The OP is mean to render services of this nature had received amount from complainant as stated supra which in fact is not disputed by OP since he is placed exparte yet the Commission below has failed to notice all such facts found from the enquiry record. In such view the impugned order could be said contrary to the facts and law. Further to be noticed herein that not only from the proceedings but also from the proceedings before the Commission below OP remained absent and he failed to participate in both the proceedings at least to enable the Commission to arrive at a right conclusion or to rebut the documents placed by the complainant as the case may be. In such view inferences drawn of the commission below in favour of the OP and against the complainant have to be said incorrect. If OP comes and participated in the proceedings of the Complainant case and this appeal which would be made more strong to opine definitely on any of the points raised within the purview of the consumer law to decide on the complaint however OP leaved the matter to the Commission to decide unilaterally and commission below wrongly drew up inference against the complainant. 7 Appeal No.583 2021 6. In the above conclusion we are of the view that the Complainant is entitled for refund of the amount. However he could not be said entitled for Rs.1 lakh towards damages as claimed. Accordingly we proceed to allow the appeal filed U s.41 of CPA 2019. Consequently set aside the impugned order dtd.30.06.2021 passed in CC.No.1004 2020 by 1st Addl. District Consumer Disputes Redressal Commission Bengaluru Urban District and the Complaint filed by the Complainant is allowed in part and directed the OP to refund Rs.35 000 along with interest at 6% p.a. from the date of receipt till realization and to pay Rs.10 000 towards compensation and Rs.5 000 towards litigation cost within 60 days from the date of receipt of this order failing which the amount so awarded shall carry interest at 9% p.a. from the date of complaint till realization. 7. Notify copy of this Order to the District Commission and parties. Judicial Member President 8 Appeal No.583 2021

Notice under section 12(2) of SARFAESI Act to be dismissed if doesnot fall under jurisdiction of Jammu and Kashmir : High Court Of Jammu and Kashmir

The question as to whether a writ petition against a notice under section 12(2) of the SARFAESI Act be valid , was examined by THE HIGH COURT OF JAMMU AND KASHMIR , consisting of Justice B.S Walia in the matter of  Mr. Ind. Swift Limited Vs. UOI  [AIR 2017 J&K 95] on 16.02.2017. The facts of the case are a notice u S.13(2) of SARFAESI was issued to  Ind Swift Lts , a company registered under the Companies Act, 1956 . The petitioner has sought issuance of a writ of certiorari and writ of mandamus against the said notice and for the respondents to adhere to the provisions applicable to the state of Jammu and Kashmir. the grievance of the petitioner is that the Bank had proceeded to issue the impugned notice despite fully knowing that SARFAESI was not applicable to the State of Jammu and Kashmir, that in view thereof, the Bank was not entitled to recover the loan from the petitioner by taking recourse to the provisions of the Act. since part of the cause of action arose within the State of Jammu and Kashmir and the proposed action of the Bank initiated u/S. 13 (2) of the Act was going to affect the working of the petitioner Company’s unit at Samba which may have consequential effect of disturbing the entire chain of commercial activity of the petitioner Company, therefore the petitioner had challenged the notice issued by the respondent Bank along with others. The learned Counsel for the petitioner contented that  High Court of Jammu and Kashmir held that  the SARFAESI ACT was not enforceable in the state of Jammu and Kashmir .  The learned counsel on behalf of the respondent contended that none of the property that has been issued under section 13(2) of the SARFAESI Act are situated within the state of Jammu and kashmir and the writ petition challenging the impugned notice on the ground that the provisions of the Act were not applicable to the State of Jammu and Kashmir was wholly misconceived. The Hon’ble Supreme Court has also declared the provisions of the act legal and valid. The High Court of J&K contended that the writ petition under the SARFAESI is dismissed as the very judgment based on which the challenged was sought is dismissed by the Hon’ble Supreme Court of India. However, the aforementioned averments are contrary to the record and the same is evident from the note to the notice impugned in the writ petition that the notice did not cover Bank/FI/ARs claim/Charge over any property whether immovable or movable including Stock/Book Debt/Plant and Machinery/Furniture/Fixture etc., whether present or future relating to the State of Jammu and Kashmir. By filing the writ petition of false averments, the petitioner has tried to over reach the process of law to obtain undue benefit of stalling recovery proceedings by the Bank running into crores of rupees of public funds. Therefore it is a fit case where the writ petition should be dismissed with costs.

Ind Swift Limited V. Union Of India high court Of jammu And kashmir OWP No. 10416 16 02 2017 Ind Swift Limited Union Of India HON BLE JUSTICE B.S. WALIA J. AIR 2017 J&K 95 2017JKJ 589 4BC 158 B.S. Walia J.—Petitioner has sought the issuance of a writ of Certiorari for quashing of notice dated 3 2 2016 issued u S.13 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 as also a Writ of Mandamus for commanding the respondents to adhere to the provisions of law as applicable to the State of Jammu and Kashmir while dealing with the unit of the petitioner on the ground that the Act was not applicable in the State of Jammu and Kashmir and that the petitioner unit had availed loan facility from the respondent Bank for establishment of its unit at Samba and that while the unit was functional the respondent Bank had resorted to proceedings under the Act which as per the concluded judgment of this Court was not applicable in the State of Jammu and Kashmir 2. That it needs noticing that the impugned notice u S.13 SARFAESI was issued inter alia to M s. Ind Swift Ltd. a Company registered under that Companies Act 1956 with its registered office at 781 Industrial Area Phase II Chandigarh PIN 160002. Sh. Navrattan Munjal r o House No. 382 Sector 6 Panchkula Haryana Sh Gopal Munjal r o House No. 1085 Sector 7 Panchkula Haryana Sh. Sanjiv Rai Mehta r o House No. 333 Sector 6 Panchkula Haryana Sh. Rishav Mehta r o House No. 322 Sector 6 Panchkula Haryana Sh. Himanshu Jain r o House No. 1133 Sector 21 B Chandigarh Smt. Nidhi Munjal r o House No. 382 Sector 6 Panchkula Haryana Smt. Neeta Munjal r o House No. 1085 Sector 7 Panchkula Haryana by the Punjab National Bank Asset Recovery Management Branch Sector 17 B Chandigarh on behalf of all Banks including the Bank of India from which the Company had availed credit facilities 3. That a perusal of the impugned notice reveals that the same specifically mentions that the securities contemplated therein do not cover Stock Book Debt Plant and Machinery Furniture Fixture etc. whether present or future relating to the State of Jammu and Kashmir. In addition thereto perusal of the writ petition reveals the same having been filed by Ind Swift Ltd IGC Phase 1 Samba Jammu and Kashmir i.e. a unit of the Company having its registered office at Chandigarh against the Bank of India through its Jammu Branch without impleading the Lead Bank issuing the impugned notice and situated outside the State of Jammu and Kashmir the outstanding was Rs 56 19 47 070 . Likewise details of book outstanding of the Company as on 31 12 2015 of other Banks have also been given in the impugned notice 5. That the grievance of the petitioner is that the Bank had proceeded to issue the impugned notice despite fully knowing that SARFAESI was not applicable to the State of Jammu and Kashmir that in view thereof the Bank was not entitled to recover the loan from the petitioner by taking recourse to the provisions of the Act. Reliance has also been placed on Annexure F dated 8th September 2014 issued by the Bank of India Jammu Mid Corporate Branch to the Managing Director of the Company at Chandigarh confirming receipt of payment from the Company PPC charges in respect of ECB sanctioned to the Company and further mentioning that the ECB was managed and handled by the Jammu Mid Corporate Branch of Bank of India 6. That in paragraph No. 8 of the writ petition apart from taking up the plea that the case was covered by the judgment delivered by this Court it has categorically been mentioned Since the issue involve is about the taking over of immovable property of the petitioner situated within the State of Jammu and Kashmir therefore the provisions of SARFAESI Act cannot be invoked by the respondent Bank. 7. That in paragraph No. 9 of the writ petition it has been mentioned that since part of the cause of action arose within the State of Jammu and Kashmir and the proposed action of the Bank initiated u S. 13 of the Act was going to affect the working of the petitioner Company s unit at Samba which may have consequential effect of disturbing the entire chain of commercial activity of the petitioner Company therefore the petitioner had challenged the notice issued by the respondent Bank along with others 8. That in the objections filed on behalf of the Bank of India it has been mentioned that none of the properties in respect of which the notice dated 3rd February 2016 had been issued u S. 13 of the Act was situated within the State of Jammu and Kashmir therefore the writ petition challenging the impugned notice on the ground that the provisions of the Act were not applicable to the State of Jammu and Kashmir was wholly misconceived and liable to be rejected out rightly that the provisions of the Act had been declared legal and valid by the Hon ble Supreme Court and the same being applicable to the properties mentioned in the impugned notice no writ petition in respect of the properties situated outside the State of Jammu and Kashmir sought to be proceeded against by the Bank under the Act was maintainable by the petitioner before the Jammu and Kashmir High Court nor was the registered office of the petitioner situated in the State of Jammu and Kashmir nor its promoters or Directors were residents of the State of Jammu and Kashmir the averments that the petitioner was permanent resident of the State of Jammu and Kashmir was totally false and incorrect for as per list Annexure R 1 all the Directors Promotors of the Company were residents of either Panchkula or Chandigarh Details of the loans limits sanctioned by the Bank of India in favour of the Company against the creation of pari passu charge on the entire fixed assets of the Company including the immovable properties as mentioned in the impugned notice apart from other property situated within the State of Jammu and Kashmir have also been given and the same are as under : a) Term Loan of Rs. 10 crore b) Corporate Loan of Rs. 20 crore c) FITL of Rs. 5.20 crore d) External Commercial Borrowings of Rs. 8 Mn and cannot be held to be beyond that legislative competence of parliament as is wrongly been held by the High Court...... 48............. We therefore set aside the judgment of the High Court. As a result notices issued by Banks in terms of Section 13 and other coercive methods taken under the said Section are valid and can be proceeded with further. The appeals are accordingly allowed with no order as to costs. 12. That in view of the decision of the Hon ble Supreme Court the challenge in the writ petition to the initiation of proceedings under SARFAESI on the basis of the Division Bench judgment in Santosh Gupta s case no longer survives as the very judgment on the basis of which the challenge had been raised has been set aside by the Hon ble Supreme Court. In the circumstances the writ petition is liable to be dismissed with liberty to the Bank to take out proceedings against the noticees under the Act. However it needs noticing that the writ petition was filed primarily by pleading Since the issue involved is about the taking over of immovable property of the petitioner situated within the State of Jammu and Kashmir therefore the provisions of SARFAESI Act cannot be invoked by the respondent Bank However the aforementioned averment s are contrary to the record and the same is evident from the note to the notice impugned in the writ petition that the notice did not cover Bank FI AR s claim Charge over any property whether immovable or movable including Stock Book Debt Plant and Machinery Furniture Fixture etc. whether present or future relating to the State of Jammu and Kashmir. By filing the writ petition of false averments the petitioner has tried to over reach the process of law to obtain undue benefit of stalling recovery proceedings by the Bank running into crores of rupees of public funds. Therefore it is a fit case where the writ petition should be dismissed with costs. Accordingly the writ petition is dismissed with costs assessed at Rs. 20 000 . (Rs. twenty thousand only). Stay granted vide order dated 20 7 2016 is vacated (Printed For: Reetasa Samal 24 12 2021 On: 04:32:PM Ind Swift Limited V. Union Of India Costs are directed to be deposited with the Legal Aid Authority High Court of Jammu & Kashmir within four weeks from today. Registrar Judicial to report compliance Disclaimer: Legitquest has made all efforts to avoid any omission and or mistake in publishing this document and adding editorial and other enhancements. Legitquest would not be liable in any manner whatsoever by reason of any omission or mistake in the published document or any action or advice rendered or accepted on the basis of the document or any editorial or other enhancements like idraf infographics Note Notebook Acts Rules Regulations Bills Notifications Circulars News Interviews Columns Treaties LawCommission Reports Constituent Debates and or any material or feature added by us. All disputes will be exclusively dealt with the Courts Tribunals at Delhi only. It is advised to check the authenticity of all published document from the original source (Printed For: Reetasa Samal 24 12 2021 On: 04:32:PM

Mere name in the selection list doesn’t guarantee appointment: Supreme Court

In the case of Commissioner of Police and Anr. Versus Umesh Kumar [Special leave petition (c) 5545/2019], the Supreme Court discerned that mere inclusion of one’s name in the selection list doesn’t inflict upon them or the fact that he/she will be appointed. The acumen was passed by the Honorable Justice Dr. Dhananjaya Y Chandrachud. J on Wednesday, 07 October 2020. The respondent after applying and qualifying for the post of ‘Constable (Executive) – Male’, was allotted roll number for appearing in the written examination. The written examination after being cancelled twice, was re-conducted on 16 November 2014. The respondents were selected after all the qualifying criteria were duly fulfilled and were directed to report to the DCP – Recruitment cell, Delhi for further ‘codal formalities’. Further while basic training commenced, the candidates were directed complete the documents, to facilitate the issuance of offers of appointment. The appellants before the Tribunal challenged the answer keys in the written examination and claimed that they had not obtained marks for correct answers for 8 questions resulting in abeyance and non-issuance of appointment. The expert committee found typographical errors in the answer keys and directed “ …in view of the statements made by the respondents that further action regarding the recruitment process will be taken as per the recommendations of the Expert Committee, and that till date no candidate has been given appointment for the post in question, and, considering the vagueness of the statements made by the respondents, we deem it just and proper to direct the respondents to ensure submission of the report by the said Expert Committee within one month from today, if such report has not yet been submitted by the Expert Committee, and to take further necessary action regarding the recruitment process within two months from today. Ordered accordingly.” After revising the results, the candidates were selected and five vacancies could not be filled up due to unavailability of suitable candidates. The cut of marks for OBC after re-evaluating was 79.49134 but that of two respondents were 77.514 & 77.271.  After the vacancies were  filled by as per the new cut-off list, Umesh file a writ petition in the Delhi High court. The ASG asserted that the re-evaluation was duly done and that respondent didn’t achieve the required cut-off marks. It was reiterated that the resignation of Umesh from the Railway Protection Force was no ground of issuance of appointment by the Delhi High Court by the writ of Mandamus.

Reportable IN THE CIVIL APPELLATE JURISDICTION Civil Appeal No. 33320 Arising out of Special Leave PetitionNo. 33319) Commissioner of Police and Anr Umesh Kumar …Respondent And With Civil Appeal No. 33320 Arising out of Special Leave PetitionNo. 55419) JUDGMENT Dr Dhananjaya Y Chandrachud J On 27 January 2013 a notice was published in the newspapers for filling up 523 vacancies for the post of ‘ConstableMale’ in the Delhi Police. The break up of vacancies indicated 262 to be unreserved 142 for OBC candidates 79 for Scheduled Caste candidates and 40 for those belonging to the Scheduled Tribes. The candidates appeared for a physical endurance and measurement test on 4 October 2013. Upon qualifying at the test the candidates were allotted roll numbers for appearing in the written examination. Of a total of 50 422 candidates 39 597 appeared in the written examination which was held on 8 March 2014. This examination was cancelled by the Delhi Police and a fresh written examination was held on 25 May 2014 which was cancelled as well. Finally a written examination was conducted on 16 November 2014 consisting of one objective type multiple choice question paper of 100 marks. After an evaluation of the OMR sheets a list of 514 provisionally selected candidates was declared on 13 July 2015. Nine vacancies could not be filled up due to the unavailability of suitable candidates in the ex servicemen category. The respondents were declared to be selected under the OBC category. During the course of scrutiny it was found that a bonus mark had not been allocated to candidates whose height was measured at 178 centimetres or above at the time of the physical endurance and measurement test. Candidates were entitled to an extra bonus mark under the provisions of Point No. 4of the then Standing Order 212 of 2011 according to which: “A candidate whose height is 178 cms or more shall be given 01 bonus mark to be added in the total marks while determining the merit list." Accordingly the result was recompiled after allocating one bonus mark to all the candidates with a height of at least 178 centimetres and a final revised result was declared on 17 July 2015. 512 candidates were selected while the remaining 11 vacancies were not filled up due to the unavailability of candidates from the ex servicemen category. In the result which was declared on 17 July 2015 32 new candidates came within the selection zone and 34 candidates were ousted. The respondents to the present Civil Appeals were declared as selected from the OBC category in the revised result as well. The minimum qualifying marks for the OBC category were 71.29004295. Umesh Kumar the respondent in the first of the two appeals secured 74.16991306 marks. Satyendra Singh the respondent in the companion appeal secured 71.49891738 marks. In the note attached to the final list declared on 17 July 2015 all candidates were directed to report to the DCP Recruitment Cell New Police Lines Kingsway Camp Delhi for further “codal formalities” between 27 July 2015 and 31 July 2015. Candidates were distributed on these dates in accordance with their roll numbers: All the selected candidates were issued the prescribed forms so as to expedite the process of recruitment. The object appears to have been that during the commencement of batches for basic training the candidates should have all documents complete to facilitate the issuance of offers of appointment. The documents which were issued to candidates were: “a. Attestation Form for Police Verificationfor medical examination. c. Agreement Form i.e. regarding depositing of capitation charges in case he she left service before 5 years after joining Delhi Police. d. Certificate of Characterfor police verification and a medical form for conducting a medical examination in accordance with Rules 24 and 25 of the Delhi PoliceRules 1980. On receipt of a satisfactory police verification and medical report candidates were to be issued a communication directing them to report at the Recruitment Cell NPL together with original documents. The following forms had to be submitted before the issuance of an offer of appointment: “a. Agreement Form i.e. regarding depositing of capitation charges in case he she left service before 5 years after joining Delhi Police. b. Certificate of Characterincluding 7 questionswhich were declared void earlier full marks be given to all candidates in such a manner that all candidates were given marks as per scaling method for the respective number of Questions from each category. iii. The options of answer of Q. No.6 & 10may be changed modified fromto& fromto respectively as well as options of the same questions of other Booklet Series having different sequence number may also be changed iv. The option of answer of only Q.No.67may be changed modified from to as the option of answer of the same question of other Booklet Series(C) andis correct.” Resultantly the entire result was revised. The final result after re evaluation of all OMR sheets was declared on 22 February 2016. 518 candidates were declared to be provisionally selected subject to “codal formalities” such as the satisfactory verification of character and antecedents medical examination and final verification of documents. Five vacancies could not be filled up due to the unavailability of suitable candidates from the ex servicemen category. In the final result which was declared on 22 February 2016 129 new candidates came into the selection zone and 123 candidates who had been declared selected earlier in the result of 17 July 2015 were ousted. The cut off for the OBC category after re evaluation of results was 79.49134163 marks. The marks which were secured by the two respondents in the revised results of 22 February 2016 were as follows:  Umesh Kumar : 77.51406888  Satyendra Singh : 77.27164463 The newly selected candidates from the result declared on 22 February 2016 were called for the completion of “codal formalities”. Police verification and medical fitness was carried out and the candidates who successfully completed this process were required to report to the recruitment cell at New Police Lines Kingsway Camp Delhi with original attested copies of documents to collect their offers of appointment. Except for candidates with an adverse background all selected candidates were issued offers of appointment and joined the basic training programme for Constables in Delhi Police with effect from 4 April 2016. After the declaration of the result on 22 February 2016 some candidates challenged the process before the Tribunal in O.A. No. 96164 and O.A. No. 124165 in March 2016. The Tribunal dismissed the OAs on 5 May 2016 and the Review Petitions were subsequently dismissed on 1 June 2016. Following this writ petitions under Article 226 of the Constitution W.P.No. 741166 and 4 Sandeep Kumar & Ors. vs C.P. Delhi & Anr. 5 Bijendere Kumar & Ors. vs. C.P. Delhi & Anr. 6 Sandeep Kumar & Ors. vs. Delhi Police & Anr. W.P.No. 762167 challenging the judgments of the Tribunal were also dismissed as not pressed by the Delhi High Court on 7 September 2016. 10 On 21 March 2016 the respondents filed O.A. No. 11416 challenging their non selection in the revised result declared on 22 February 2016 before the Tribunal. The OA was dismissed on 15 September 2017. Umesh Kumar then filed a writ petition under Article 226 Writ PetitionNo.101417 in the Delhi High Court which was allowed by a judgment dated 6 December 2018. Following its decision in the case of Umesh Kumar the Delhi High Court also allowed the writ petition instituted by Satyendra Singh Writ PetitionNo.130518 by its judgment dated 19 December 2018. The ultimate directions that have been issued by the Delhi High Court in the first of the two writ petitions are in the following terms: “For the aforesaid reasons we find no merits in the submissions of Mr. Satyakam learned counsel for the respondents. The petition is accordingly allowed and we direct the respondents to appoint the petitioner to the post of ConstableDelhi Police. He shall be deemed to have been appointed from the date of appointment with his other batch mates and his seniority shall be determined accordingly on notional basis. However he shall not be entitled to any arrears of pay and allowances. Compliance be made within next four weeks.” The companion writ petition has been allowed in similar terms. 11 Ms Madhavi Divan learned Additional Solicitor General has assailed the correctness of the judgment of the Delhi High Court. The learned ASG submitted that: 7 Bijender Kumar & Ors. vs. Delhi Police & Anr. The process of re evaluation of the first result was necessitated following the receipt of complaints and the filing of OAs before the Tribunal An Expert Committee was constituted by the competent authority of Delhi Police and upon due enquiry. The report established irregularities in the preparation of the answer key and the allocation of marks Following the report of the Expert Committee a fresh revised list was drawn up and both the respondents secured marks below the cut off for the OBC category iv) As many as 228 candidates are ranked higher than the respondent Umesh Kumar while 265 candidates are ranked higher than the respondent Satyendra Singh The mere fact that all candidates including the respondents who had been successful in the first result declared on 17 July 2015 have been furnished with requisite documents including the agreement form did not confer a vested right to appointment The revision of result has taken place in accordance with due process by applying the same yardstick to all candidates. Admittedly the respondents have thereafter failed to secure marks above the cut off for the OBC category and 2015 vii) The judgement of the Delhi High Court is contrary to the law laid down by a two judge Bench of this Court in Rajesh Kumar vs State of Bihar8 viii) A grievance of respondent Umesh Kumar that he had resigned from the Railway Protection Force9 was no ground for the Delhi High Court to direct the appellants by a writ of mandamus to issue an appointment. The respondent in terms of Rule 275 of the RPF Rules 1987 could have sought re instatement in service which he failed to do. 12 On the other hand Mr Salman Khurshid learned Senior Counsel appearing on behalf of the respondents submitted that: Neither of the two candidates in question has been at fault Both the respondents participated in the selection process and were declared to have been successful in the first result declared on 17 July Though as a consequence of the revision of the result the respondents stand ousted grave prejudice has been caused to them iv) By furnishing documents to the respondents including the agreement form a representation was held out to them by the appellants of their eligibility to join Delhi Police and of their selection to the post and 84 SCC 690 9 RFP There may be other candidates higher than the respondents in merit in the revised result but none of them has approached this Court under Article 136 of the Constitution or the High Court under Article 226. Hence the ultimate direction that was issued by the High Court should not be disturbed. This judgment has adverted to the course which the recruitment process followed since the publication of an advertisement for selection to the 2013 batch of ConstablesMale in Delhi Police. The narration of facts demonstrates that a result notifying a list of provisionally selected candidates was initially declared on 13 July 2015 but it was soon found that an error had crept in due to the failure to allocate a bonus mark to every candidate whose height was in excess of 178 centimetres. The allotment of bonus marks was provided in Standing Order No. 212 of 2011 which necessitated a revision of the results. In the revised result which was declared on 17 July 2015 certain candidates from the original list were ousted while new candidates came in. Both the respondents were part of the list of successful candidates. Yet there can be no dispute about the factual position that the recruitment process was yet to be concluded. For one thing the process of verification of character and antecedents and the ascertaining of medical fitness was yet to be carried out. But apart from this a set of OAs came to be instituted by unsuccessful candidates before the Tribunal highlighting grievances in regard to the manner in which the answer key had been prepared. The authorities agreed before the Tribunal to appoint an Expert Committee. Following the submission of the report of the Expert Committee the results were revised on 22 February 2016. After a decision was taken by the Competent Authority for revising the result as many as 123 candidates who had been selected earlier were ousted and 129 new candidates came into the selected list. This process of revising the results was carried out when the recruitment process was yet to be completed for the candidates selected in the result declared on 17 July 2015. This process of the revision of the result was then unsuccessfully challenged in the first batch of OAs before the Tribunal and subsequently the writ petitions under Article 226 before the High Court were also dismissed as not pressed. The flip flops which took place were undoubtedly because of the failure of the authorities to notice initially the norm of allotting 1 bonus mark based on height and due to the failure to prepare a proper answer key. Such irregularities have become a bane of the public recruitment process at various levels resulting in litigation across the country before the Tribunals the High Courts and ultimately this Court as well. Much of the litigation and delay in carrying out public recruitment would be obviated if those entrusted with the duty to do so carry it out with a sense of diligence and responsibility. The real issue however is whether the respondents were entitled to a writ of mandamus. This would depend on whether they have a vested right of appointment. Clearly the answer to this must be in the negative. In Punjab SEB vs. Malkiat Singh10 this Court held that the mere inclusion of candidate in a selection list does not confer upon them a vested right to appointment. The Court held: “4. …the High Court committed an error in proceeding on the basis that the respondent had got a vested right for 109 SCC 22 appointment and that could not have been taken away by the subsequent change in the policy. It is settled law that mere inclusion of name of a candidate in the select list does not confer on such candidate any vested right to get an order of appointment. This position is made clear in para 7 of the Constitution Bench judgment of this Court in Shankarsan Dash v. Union of India 3 SCC 47 : 1991 SCC 800 : 1991) 17 ATC 95] which reads:“7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate the State is under no legal duty to fill up all or any of the vacancies. However it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up the State is bound to respect the comparative merit of the candidates as reflected at the recruitment test and no discrimination can be permitted. This correct position has been consistently followed by this Court and we do not find any discordant note in the decisions in State of Haryana v. Subash Chander Marwaha3 SCC 220 : 1973 SCC488 :1 SCR 165] Neelima Shangla v. State of Haryana4 SCC 268 : 1986 SCC759] or Jatinder Kumar v. State of Punjab1 SCC 122 : 1985 SCC174 :1 SCR 899] .” emphasis supplied)” In the present case after the name of respondents appeared in the results declared on 17 July 2015 the process of recruitment was put in abeyance since the results were challenged before the Tribunal. The process of revising the results during the course of the recruitment was necessitated to align it in accordance with law. An Expert Committee was specifically appointed following the institution of proceedings before the Tribunal. The report of the Expert Committee established errors in the answer key and thereafter a conscious decision was taken after evaluating the report to revise the results on 1 February 2016. In the fresh list which was drawn up both the respondents have admittedly failed to fulfil the cut off for the OBC category to which they belong. As the learned ASG submitted before the Court as many as 228 candidates are ranked above Umesh Kumar on merit while 265 candidates stand above Satyendra Singh. The submission of Mr Khurshid that these are the only two candidates before this Court would not entitle them to a direction contrary to law since they had no vested right to appointment. In regard to respondent Umesh Kumar it is also brought to our attention that he resigned from the RPF on 16 August 2015 and his resignation was accepted on 25 August 2015. Evidently the respondent tendered his resignation without any justification when the recruitment process had not been concluded and even before an offer of appointment was made to him. In any event it would have been open to him seek re enlistment in the RPF at the material time which he chose to not do. In Rajesh KumarJustice TS Thakur as the learned Chief Justice of India then was dealt with a case where the model answer key and hence the process of evaluation of answer scripts by the Bihar Staff Selection Commission had been found to be flawed. The Court held: “15.The writ petitioners it is evident on a plain reading of the writ petition questioned not only the process of evaluation of the answer scripts by the Commission but specifically averred that the “model answer key” which formed the basis for such evaluation was erroneous. One of the questions that therefore fell for consideration by the High Court directly was whether the “model answer key” was correct. The High Court had aptly referred that question to experts in the field who as already noticed above found the “model answer key” to be erroneous in regard to as many as 45 questions out of a total of 100 questions contained in ‘A’ series question paper. Other errors were also found to which we have referred earlier. If the key which was used for evaluating the answer sheets was itself defective the result prepared on the basis of the same could be no different. The Division Bench of the High Court was therefore perfectly justified in holding that the result of the examination insofar as the same pertained to ‘A’ series question paper was vitiated. This was bound to affect the result of the entire examination qua every candidate whether or not he was a party to the proceedings. It also goes without saying that if the result was vitiated by the application of a wrong key any appointment made on the basis thereof would also be rendered unsustainable. The High Court was in that view entitled to mould the relief prayed for in the writ petition and issue directions considered necessary not only to maintain the purity of the selection process but also to ensure that no candidate earned an undeserved advantage over others by application of an erroneous key.” In Rajesh Kumar the Court then refused the oust those individuals from service who did not make the grade after re valuation of the result since they had been in service for nearly seven years. However in the present case as we have discussed above the revised result was declared even before offers of appointment were made to the respondents since the entire process of recruitment had been put in abeyance. For the above reasons we are of the view that the judgements delivered by the Delhi High Court on 6 December 2018 in Writ PetitionNo. 101417 and on 19 December 2018 in Writ PetitionNo. 130518 do not comport with law. The High Court has been manifestly in error in issuing a mandamus to the appellants to appoint the respondents on the post of Constablein Delhi Police. The direction was clearly contrary to law. The respondents have participated in the selection process and upon the declaration of the revised result it has emerged before the Court that they have failed to obtain marks above the cut off for the OBC category to which they belong. We accordingly allow the appeals and set aside the judgments of the High Court dated 6 December 2018 in Writ PetitionNo.101417 and 19 December 2018 in Writ Petition No.13052 of 2018. Both the Writ Petitions shall stand dismissed. There shall however be no order as to costs. Pending application(s) if any shall stand dismissed. [Indira Banerjee] New Delhi October 07 2020.

Victim is not a necessary party to a criminal appeal from conviction for offences against women or child under POCSO or other Statutes: Calcutta High Court

The victim is not required to be a party to a Criminal Appeal from a conviction for offences against a woman or a child, punishable under the provisions of the IPC or POCSO Acts, or any other penal provision that applies to offences affecting the human body against any women/child all terms are understood in the context of the respective legislation that deals with such omissions. This auspicious judgment was passed by The High Court of Calcutta in the case of Ganesh Das v. State of West Bengal [CRA 228 OF 2020] by Honourable Justice Thottathil B. Radhakrishnan & Justice Aniruddha Roy. The order has come in a criminal appeal filed by one Ganesh Das, who was convicted for offences punishable under Section 376(3) of IPC and Section 6 of the POCSO Act by the Trial Court and was sentenced to undergo rigorous imprisonment for 20 years. The appeal was opposed by the State, noting that the same is defective as the victim has not been made a party. Learned amicus curie referred to the provisions of Section 23, 24(5) and 33(7) of the POCSO Act to point out that there is an overwhelming legislative thrust to ensure the protection of the victims. While citing the apex court judgment Vishaka Vs. State of Rajasthan, counsel states that the contents of international conventions and norms are significant for the interpretation of constitutional guarantees in absence of domestic law occupying the field and that Article 51 of the Constitution has to be read along with Article 253 of the Constitution and that in the absence of contrary legislation, municipal courts in India would respect the Rules of International Law.

IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE PREsent : THE HON’BLE CHIEF JUSTICE THOTTATHIL B. RADHAKRISHNAN THE HON’BLE JUSTICE ANIRUDDHA ROY cRA 228 OF 2020 In tHE MAtteR OF : GANESH DAS CRA 26 OF 2021 In tHE MAtteR OF : RABIUL SK For the Appellant in CRA 228 of Mr. Avik Ghatak For the Appellant in CRA 26 of Mr. Kushal Kumar Mukherjee Ms. Rajnandini Das Mr. Rana Mukherjee….. Ld. APP Mr. Shiv Shankar Banerjee Ms. Sanchita Barman Roy .............. Advocates Ld. Amicus Curiae Mr. Sourav Chatterjee… .............. Advocate For the State Heard on Judgment on Thottathil B. Radhakrishnan C.J. : Is the victim a necessary party to an appeal under Section 374 of Cr.P.C. from conviction Would such an appeal be defective in the absence of impleadment of the victim If the answers to these two questions are in the negative what is the procedure to be adopted 2. CRA No. 2220 is an appeal against conviction and sentence. The appellant was held guilty and convicted for offence punishable under Section 376(3) of the Indian Penal Code hereinafter referred to as “I.P.C.” and Section 6 of the Protection of Children from Sexual Offences Act 2012 for short “POCSO Act”. He was sentenced to undergo rigorous imprisonment for 20 years and to pay fine of Rs. 10 000 and in default to undergo rigorous imprisonment for one year for the offence punishable under Section 376(3) of I.P.C. It was directed that the victim is entitled to get the said fine amount of Rs. 10 000 if realized in view of the second proviso to Section 357 of the Code of Criminal Procedure for short “Cr.P.C.”. The department has noted that this appeal is defective as the victim has not been made party in this applicationand 33(7) of the POCSO Act to point out that there is an overwhelming legislative thrust to ensure protection of the victims. He also referred to the decision of the Hon’ble Supreme Court of India in NIPUN Saxena & Anr. Vs. Union of India & Ors. reported as2 SCC 703 in particular paragraph 50.4 and 50.6. thereof and to the decision of the Apex Court reported as 7 SCC 142 SCC 551 State of Punjab Vs. Ramdev Singh reported as 2004 1) SCC 421 Lalit Yadav Vs. State of Chattisgarh reported as 2018SCC 499 Ravishankar Vs. State of Madhya Pradesh reported as 2019 SCC 689 Sangitaben Shaileshbhai Datanta Vs. State of Gujarat reported as 2019SCC 522 and the decision of this Court in Bijoy Vs. State of West Bengal reported as 2017 SCC Online Cal 417. We will deal with those precedents as we proceed. 7. The decision of the Apex Court in Vishaka Vs. State of Rajasthan reported as 1997SCC 241 and in National Legal Services Authority Vs. Union of India reported as 2014SCC 438 were cited by Advocate Sourav Chatterjee to state that the contents of international conventions and norms are significant for the interpretation of constitutional guarantees in absence of domestic law occupying the field and that Article 51 of the Constitution has to be read along with Article 253 of the Constitution and that in the absence of a contrary legislation municipal courts in India would respect the Rules of International 8. Advocate Shiv Shankar Banerjee made reference to the provisions of the Juvenile Justice Act 2015 for short “JJ Act 2015” in particular Section 3(xi) of that Act. He further submitted that the Schemes framed by National Legal Services Authority for short “NALSA” and the State Government provides for compensation and those Schemes have delineated the modes of protection for the victims. 9. Learned Senior Advocate Mr. Sekhar Basu drew our attention to Article 39(f) amongst the Directive Principle of State Policy apart from Article 21 of the Constitution of India. 10. Section 372 of Cr.P.C. provides that no appeal shall lie from any judgment or order of a Criminal Court except as provided for by the Code or by any other law for the time being in force. The proviso introduced to that Section with effect from 31.12.2009 conferring right of appeal on the victim as regards such matters as are stated in that proviso is of no consequence in so far as these appeals are concerned. Section 374 of Cr.P.C. provides for the appeals from convictions. Section 385 Cr.P.C. prescribes the steps to be taken for the purpose of hearing of the appeals which are not dismissed summarily. The contents of Section 374 and Section 385 of the Cr.P.C. taken together will show that issuance of notice of the hearing of the appeal to the victim is not prescribed though notice to the complainant is prescribed if the appeal is from a judgment of conviction in a case instituted upon complaint. Since the appeals in hand are not from a judgment of conviction in a case instituted upon complaint Clause of Section 385 does not apply to these appeals. Clause of Section 385 does not apply because these appeals are not under either under Section 377 or Section 378 of the Cr.P.C. 11. Trial conviction and sentence are matters primarily between the accused person and the State. The statutory provisions for institution of the appeal and the hearing thereof do not in their terms enjoin impleadment of the victim in these appeals. 12. The POCSO Act came into force on 14.11.2012. The amendments made thereto as per the provision of Protection of Children from Sexual Offences Act 2009 came into force on 13. Section 228A was inserted in the I.P.C. with effect from 25.12.1983. That provision makes disclosure of the identity of the victim of certain offences punishable. Printing or publishing the name or any matter which may make known the identity of any person against whom an offence under Sections 376 376A 376AB 376B 376C 376D 376DA 376DB 376E of I.P.C. is alleged or found to have been committed is punishable. The Apex Court in Bhupinder Sharmafollowed by Ramdev Singhlaid down that while it is true that such restrictions do not relate to printing or publication of judgment by the High Court or the Supreme Court keeping in view the social object of preventing social victimization or ostracism of the victim of a sexual offence for which Section 228A of I.P.C. has been enacted the name of the victim should not be indicated in the judgments of the courts including the superior courts. Relying on Ramdev Singhthe Apex Court reiterated in Lalit Yadav that mentioning the name of the victim in such cases is not consistent with Section 228A of I.P.C. and though the Explanation to that Section makes an exception in favour of the judgments of the superior courts efforts should be made by all the courts not to disclose the identity of the victim. Following Bhupinder Sharma a three Judge Bench of the Hon’ble Supreme Court stated in Ravishankar Vs. State of Madhya Pradesh reported as 2019SCC 689 that the mandate against disclosure of the identities of the victim of sexual offences ought to be observed in spirit even by the Apex Court. 14. Reiterating the contents of Section 228A of I.P.C. and referring to the law laid down in Ramdev Singh the Apex Court in Sangitaben Shaileshbhai Datanta referred also to Section 33(7) of POCSO Act which casts a duty on the Special Court to ensure that identity of the victim is not disclosed at any time during the course of investigation or trial. Section 23 of the POCSO Act which imposes restrictions on any form of media from disclosing the identity of the victim which tends to lower her reputation or infringes upon her privacy was also taken specific note of. 15. Through the order in Bijoy this Court issued directives to the investigating agencies prosecutors and Special Courts in relation to the protection of the child victims’ fundamental right to dignity. Guiding support was drawn from the decision of the Apex Court in Sakshi Vs. Union of India 5 SCC 518. The directives issued by this Court in Bijoy includes the specific command that the investigating agencies shall not disclose the identity of the victim in any media and shall ensure that such identity is not disclosed in any manner whatsoever except with the express permission of the Special Court in the interest of justice. It was further directed that the identity of the victim particularly his her name parentage address or any other particulars that may reveal such identity shall not be disclosed in the judgment delivered by the Special Court unless such disclosure of identity is in the interest of the child. That order of this Court stands approved by the Apex Court through the judgment in Nipun Saxena to which the directions issued by this Court in Bijoy stand annexed. The directions issued by the Apex Court in Nipun Saxenainclude the following: “50.1. No person can print or publish in print electronic social media etc. the name of the victim or even in a remote manner disclose any facts which can lead to the victim being identified and which should make her identity known to the public at not be disclosed even 50.2. In cases where the victim is dead or of unsound mind the name of the victim or her identity authorisation of the next of kin unless circumstances justifying the disclosure of her identity exist which shall be decided by the competent authority which at present is the Sessions Judge. 50.3. FIRs relating to offences under Sections 376 376A 376AB 376B 376C 376D 376DA 376DB or 376E I.P.C. and the offences under POCSO shall not be put in the public domain. 50.4. In case a victim files and appeal under Section 372 Cr.P.C. it is not necessary for the victim to disclose his her identity and the appeal shall be dealt with in the manner laid down by law. 50.5. The police officials should keep all the documents in which the name of the victim is disclosed as far as possible in a sealed cover and replace these documents by identical documents in which the name of the victim is removed in all records which may be scrutinised in the public 50.6. All the authorities to which the name of the victim is disclosed by the investigating agency or the Court are also duty bound to keep the name and identity of the victim secret and not disclose it in any manner except in the report which should only be sent in a sealed cover to the investigating agency or the Court. 50.7. An application by the next of kin to authorise disclosure of identity of a dead victim or of a victim of unsound mind under Section 228A (c) I.P.C. should be made only to the Sessions Judge concerned until the Government acts under Section 228A (c) and lays down criteria as per our directions for identifying such social welfare institutions or organizations. 50.8. In case of minor victims under POCSO Act disclosure of their identity can only be permitted by the Special Court if such disclosure is in the interest of the child.” 16. Sikkim High Court in Subhas Chandra Rai Vs. State of Sikkim 2018 Cri LJ 3146 =quoted with approval by the Hon’ble Supreme Court in Nipun Saxena stated that in view of the mandate of Section 74 of the JJ Act the Police and Media as well as the Judiciary are required to be equally sensitive in such matters and to ensure that such mandate of law is compiled with. We are in agreement with that view. Be it a child in conflict with law or one in need of care and protection or a child victim or witness of a crime involved in matter the name identity of the parents siblings and near relatives other family details address school or other particulars which could lead to such child being tracked found and identified shall not be disclosed unless for the reasons given in the proviso to Section 74 of the JJ Act. 17. The directions in paragraph 50.4 in Nipun Saxenaenjoins that in case a victim files an appeal under Section 372 of Cr.P.C. it is not necessary for the victim to disclose his her identity and the appeal shall be dealt with in the manner laid down by law. The need is to follow protective governance as far as the privacy of the victims are concerned. That has to be ensured in letter and spirit by cohesive and comprehensive effectuation of the seminal twin doctrines of privacy and dignity which are inexcusable components of the fundamental right to life guaranteed under Article 21 of Constitution of India. 18. Running with the aforesaid is Article 39 of the Constitution which enjoins that the State shall direct its policies towards securing that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. The principles enumerated in the different clauses of Article 39 are among the Directive Principle of State Policy for short “DPSP” in Part IV of the Constitution. Article 38(1) in Part IV enjoins that the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice social economic and political shall inform all the institutions of the national life. Investigation prosecution and adjudication are carried out through institutions which are essentially institutions of national life. Judiciary is an institution of national life. Therefore the protective canopy over the children against exploitation and the constitutional vision value and command to ensure their freedom and dignity including privacy are among the principles which ought to guide the judicial institutions as well. 19. On 11.12.1992 India ratified the United Nations Convention on the Rights of the Children ‘UNCRC’ for short. That Convention requires all State Parties to undertake all appropriate measures to secure the best interest of the child even when it is alleged as or accused of violating any penal law. Such measures require the treatment of the child in a manner consistent with the promotion of the child’s sense of dignity and worth reinforcing the child’s respect for the human rights and fundamental freedoms of others and taking into account the child’s age and desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society. The thrust in those principles were to ensure proper care protection development treatment and social re integration of every child in difficult circumstances by adopting a child friendly approach keeping in mind the best interest of the child. In terms of Article 253 of the Constitution the Parliament has the overriding exclusive legislative competence and power to make laws for implementing any treaty agreement or convention with any other country or countries or any decision made at any international conference association or other body. All these provisions taken together obliges the State to put in place requisite provisions to reach at the goals sought to be achieved through a meaningful collective operation of the provisions of the UNCRC and the Constitution of India. 20. In the aforesaid conspectus the 2015 JJ Act emerged out of the need to re enact the Juvenile Justice Act 2000 to make comprehensive provisions for children alleged and found to be in conflict with law and children in need of care and protection taking into consideration the standards prescribed in the UNCRC the United Nations Standard Minimum Rules for the Administration of Juvenile Justice 1985the United Nations Rules for the Protection of Juveniles Deprived of their Liberty the Hague Convention on Protection of Children and Co operation in Respect of Inter country Adoption 1993) and other related instruments. It was therefore that the 2015 JJ Act was brought into being as an Act to consolidate and amend the laws relating to children alleged or found to be in conflict with law and children in need of care and protection by catering to their basic needs through proper care protection development treatment social reintegration by adopting a child friendly approach in the adjudication and disposal of matters in the best interest of children and for their rehabilitation through processes provided and institutions and bodies to be established under the 2015 JJ 21. Article 39A of the Constitution enjoins provision of free legal aid by suitable legislation or schemes or in any other way to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. The National Legal Services Authority the State Legal Services Authorities the District Legal Services Authorities the Taluk Legal Services Committees and the High Court Legal Services Committee for short “NALSA” “ SLSA” “DLSA” “TLSC” and “HCLSC” respectively are constituted under the provisions of the Legal Services Authority Act 1987 for short “LSA Act”. Section 13 of the LSA Act 1987 provides that a person who satisfy all or any of the criteria specified in Section 12 shall be entitled to receive legal services provided that the concerned authority is satisfied that such person has a prima facie case to prosecute or defend. Section 12 of the LSA Act enumerates the classes of persons who will be entitled to Legal Services while filing or defending a case. It includes “a woman or a child” at clauseof Section 12. While the LSA Act does not defines “child” the POCSO Act defines ‘child’ to mean any person below the age of eighteen years and the 2015 JJ Act defines ‘child’ to mean a person who has not completed eighteen years of age See Section 2(d) of the POCSO Act and Section 2(12) of the 2015 JJ Act. 22. Learned Amicus Curiae Sourav Chatterjee pointed out that in exercise of the power conferred by Section 45 of the POCSO Act and upon repealing the Protection of Children from Sexual Offences Rules 2012 the Protection of Children from Sexual Offences Rules 2020 were made. Those rules came into force on their publication in the Gazette of India on 9th March 2020. Rule 7 among those rules provided that the Child Welfare Committee for short “CWC” shall make a recommendation to the DLSA for legal aid and assistance. Legal aid and assistance shall be provided to the child in accordance with the provisions of the LSA Act 1987. The Special Juvenile Police Unit for short “SJPU” or the local police shall inform the child and child’s parents or guardian or other person in whom the child has trust and confidence about their entitlements and services available to them under the Act or any other law for the time being applicable as per Form A. which is made part of those rules. What are enumerated as entitlement of children who have suffered sexual abuse are inter alia for being kept away from accused at all times during trial and otherwise for Free Legal Aid and to privacy and confidentiality. 23. A victim filing an appeal in terms of the proviso to Section 372 of Cr.P.C. can seek legal services in terms of Section 13 of the LSA Act if that victim is a woman or a child or for any other reason entitled to legal services having regard to the contents of Section 12 of the LSA Act. It is among the directions in Nipun Saxena SUPra) that in case a victim of offences of the types in these cases files an appeal under Section 372 of Cr.P.C. and the proviso thereto it is not necessary for the victim to disclose his her identity and the appeal shall dealt with in the manner laid down by 24. The legal rights eligibility and interest of a victim in the course of an appeal against conviction would stand satisfied if the State carries out diligently and vigilantly its role in criminal cases and the Public Prosecutors discharging their duties and responsibilities due from them in terms of the provisions of Cr.P.C and other governing laws. The eligibility of a victim even in cases where a component of compensation is ordered by the convicting Court under Section 357 of Cr.P.C. ought to be protected by the State and Public 25. In so far as victims of sexual offences falling either under Indian Penal Code or POCSO Act are concerned they would be entitled to have their cause defended in appeals arising from judgements of the Criminal Courts resulting in the conviction and resultant sentencing of the wrong doer accused person. While it is definitely the duty of the State and the Public Prosecutor to comprehensively deal with all aspects of a criminal appeal against conviction in particular cases on the basis of situation and need the Legal Services Authority concerned can also represent and protect the interest of the victim even without the impleadment of the victim in the array of parties thereby synchronizing the opportunity to contest and the need to preserve the privacy. The right to be extended such legal services as may be required for such purpose ought to necessarily flow through the Legal Services Authorities constituted under the LSA Act. 26. For the aforesaid reasons we hold that: i) The victim is not a necessary party to a Criminal Appeal from conviction for offences against woman or child punishable under provisions of the I.P.C. or POCSO Act or any other penal provision which will apply in relation to offences affecting human body against any “woman” and or “child” both those expressions being understood in the context of the respective legislation which deals with such ii) No such appeal would be defective in the absence of impleadment of the victim. iii)The procedure to be adopted in all such appeals would be to deal with those appeals without insisting on the impleadment of the victim. In cases where over and above the assistance of the Public Prosecutor representing the State the appellate court deems it necessary to provide further assistance to secure the interest of the victim through legal aid the HCLSC or the DLSA concerned may be required to provide assistance through an empanelled or other advocate as may be decided by the HCLSC or the DLSA concerned. However even in such cases it shall be insisted by the Court that the principles relating to protection of dignity and privacy and modality of ensuring those values as delineated above are scrupulously adhered iv) As a necessary corollary we deem it situationally appropriate to state that the appeals by victims would be governed by the directions in Nipun Saxena however that there need not be any doubt as to how the victim would be described. It would suffice that the cause title of such an appeal would show that the appellant is the victim in the criminal case identified by its number the court below and or the police station. This will insulate the victim from being subjected to disclosure of identity of that person. 27. Before parting we place on record our appreciation for the in depth preparation and able assistance rendered by Mr. Sourav Chatterjee who on the request of this Court assisted as amicus curiae. We also record our appreciation for the manner in which broad spectrum of law was dilated upon and presented before us by Mr. Shiv Shankar Banerjee assisting from the West Bengal State Legal Services Authority. We appreciate the guidance extended by Senior Advocate Shekhar Basu with his advisory intervention. 28. Resultantly it is held and ordered that: a. CRA No. 2220 is not defective. b. The name and description of the person arrayed as a respondent other than the State in CRA No. 26 of 2021 shall be struck off the record. AnIRUDdha Roy J.) Thottathil B. Radhakrishnan C.J.)

Offences under Section 307 IPC can be quashed under exceptional circumstances: High Court of Delhi

The High Court of Delhi exercised its jurisdiction under Section 482 Cr.P.C to quash the FIR on the ground that the parties have entered into a compromise. This was held in the case of Mohammed Umair v. State and Anr, [CRL.M.C. 674/2021], by Hon’ble Justice Subramanion Prasad. The accused who was arguing with his mother started abusing the complainant and started fighting with him when he asked him not to argue with his mother. It is stated that the accused slapped the complainant and when people gathered there the accused threatened the complainant and went towards his house. It was alleged that the accused stabbed the complainant on the stomach. The MLC the doctor has recorded the present case to be one of physical assault near home address and reported stab injury in the abdomen. Charge-sheet has been filed against the complainant. The charge-sheet states that the complainant has suffered grievous injuries. The accused/petitioner was later released on bail . A petition was filed on the ground that after the intervention of the parents and the well-wishers the parties have stated to settle their disputes. Reliance was placed on the case of Gian Singh v. State of Punjab, (2012) 10 SCC 303, where it was held that the High Court has the power to quash FIR/complaint on the basis of a compromise arrived at between the parties while exercising its jurisdiction under Section 482 Cr.P.C, provided it has to be exercised in accord with the guideline engrafted in such power viz.: (i) to secure the ends of justice, or (ii) to prevent abuse of the process of any court. In what cases power to quash the criminal proceeding or complaint or FIR may be exercised where the offender and the victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. The Court observed that “As there is a close relation between equality and justice, it should be clearly discernible as to how the two prosecutions under Section 307 IPC are different in nature and therefore are given different treatment. With this ideal objective in mind, we are proceeding to discuss the subject at length. It is for this reason we deem it appropriate to lay down some distinct, definite and clear guidelines which can be kept in mind by the High Courts to take a view as to under what circumstances it should accept the settlement between the parties and quash the proceedings and under what circumstances it should refrain from doing so”.

Feeling aggrieved and dissatisfied with the impugned Case No.1398 of 2020 by which the High Court has released of 2019 under Sections 420 467 468 471 120­B IPC registered in Police Station Kotwali District Unnao the original informant 3. That the Record Keeper of the Civil Court Unnao on the order of the District Judge Unnao has lodged an FIR against Respondent No.2 herein for the offences under Sections 420 467 468 471 120­B IPC. It is required to be noted that before the said FIR was lodged a writ petition was filed by the appellant herein before the High Court of Judicature at for issuance of writ of mandamus to take action on the complaint made by him against Respondent No.2 herein for whitener in Sessions Trial No.89­A 01 State vs. Mahesh under Sections 307 504 and 506 IPC Crime Case No.152 2000 Police with and instead of ‘Mahesh’ ‘Ramesh’ had been written Track Court Unnao. It appears that earlier in the order dated 14.11.2018 the very Learned Additional Sessions Judge Fast the fabrication in the court record. Therefore the High Court thought it fit to call his comments as to in context of which document the observations were made in order dated 14.11.2018. It appears that thereafter the Learned Additional Sessions Judge sent his comments enquiry report dated 09.01.2019 indicating that the judicial record pertaining to Sessions Trial No.89­A 01 State vs. Mahesh under Sections 307 504 and 506 IPC Crime Case No.152 of 2000 Police Station Makhi District Unnao was tampered with. The High done. Thereafter on the order of the Learned District and Sessions Judge Unnao the Record keeper has lodged the common order was passed on 23.12.2002 by the Learned Additional Sessions Judge Unnao in Sessions Case No.583 2000 State Vs. Pappu Singh under Section 307 504 506 IPC PS Makhi District Unnao Case No.152 2000 Sessions Case Crime No.153 2000 and Session Case No.89 2001 State Vs. Guddu Singh under Sections 04.05.2012 in which name of any of the accused was not said decision order was obtained on 04.05.2012. In the first page of the decision case of Mahesh was separated as he absconded. The certified copy of the said order dated has been inscribed and the whitener has been applied which has been added inserted in page no.1 while there was no accused by name of Ramesh. That a Special Case No.11 12 Crime No.132 2002 under Section 2 3 of the U.P. Gangsters and Antisocial Activities Act 1986 hereinafter and under consideration in Special Court Judge Gangster Act Additional Sessions Judge Court No.5 Unnao in which a behalf of Mahesh Singh Paper No.B 346 was presented shown in the Gangsters Act including the Special Case No.583 2000 the Learned Special Court 14 SCC 493 Seema Singh vs. CBI 2018) 16 SCC 10 Manish Solanki vs. State of Rajasthan said that the allegations made in the FIR are prima facie by any of his acquaintances has applied for certified copy of has not been obtained by Mahesh Singh or by any of his 7.2. Number of other submissions have been made by the Learned Counsel appearing for Respondent No.2 to the effect 7.3 It is further submitted that even it is also not true that 7.4 It is further submitted by Learned Counsel appearing on to assail the grant of bail sought by Respondent No.2. It is submitted that he is neither the complainant nor the affected the case of Amanullah vs. State of Bihar 6 SCC 699 it the matter under consideration and is having a personal 7.6 It is submitted that even the present petition is being 8.1 At the outset it is required to be noted that Respondent 420 467 468 471 120­B IPC. It is also required to be noted After the enquiry report submitted by the Learned Additional the Court record has been manipulated and forged the High has been lodged against the respondent accused for the aforesaid offences. If we consider the allegations in that case the allegations are very serious of tampering and or case. It is also required to be noted that now after the investigation is concluded the charge­sheet has been filed against the Respondent accused and even the charges have also reported to be framed. Thus a prima facie case is found the High Court it appears that High Court has not adverted itself to the seriousness of the case and the offences alleged released Respondent No.2 accused on bail in a routine and manipulating the court order. From the impugned judgment thereto without commenting anything on merit as to the complicity involvement and severeness of the offences the case accused is charged for the offences under Sections 420 467 468 471 120­B IPC and the maximum punishment for offence and even for the offence under Section 471 IPC the similar court record and getting benefit of such forged manipulated court record is a very serious offence. If the Court record is Therefore the High Court ought to have been more to have forged manipulated the court record and taken the benefit of such manipulated and forged court record more particularly when he has been charge­sheeted having found 8.3 Now so far as the submissions on behalf of the accused Act is concerned. From the order passed by Learned Special Court Gangsters Act it appears that the judgment and order passed by the Learned Sessions Judge dated 23.12.2002 was produced in which Respondent No.2 accused ­ Mahesh was shown as acquitted. On the basis of the same the Learned Special Court acquitted Respondent No.2 ­accused. Therefore in fact he is the beneficiary of the said forged manipulated the case on behalf of the accused that it might have been is the beneficiary of such forged manipulated court order and having taken advantage of such order thereafter it will not be looking to the very serious allegations of No.2 on bail. Merely because the charge­sheet is filed is no there is no chance of tampering is concerned the allegation relevant considerations while considering the grant of bail accused that the appellant has no locus to file the present No.2 ­ accused and thereafter the High Court directed the enquiry report and thereafter the FIR has been lodged file the present application for cancellation of the bail. Even otherwise in a case like this where the allegations are of tampering with the court order and for whatever reason the State has not filed the bail application the locus is not that accused on bail is unsustainable and deserves to be quashed consequence of cancellation of the bail granted by the High Court if not surrendered. However it is made clear that any to have been confined to the grant of bail and the trial to be

The award passed by a land acquisition officer is to be treated as an ‘offer’: Madras High Court

The award of the Land Acquisition Officer, is nothing more than an offer. It is open to the person whose lands are being acquired to accept that offer or he may not accept that offer and claim a reference to the Court. This was held by the Hon’ble Justice C. V. Karthikeyan in the case of N. Venugopal and Ors. Vs. The District Collector and Ors. [W.P.No. 18130 of 2020] on 25th August 2021, before the Hon’ble High Court of Madras at Chennai. The brief facts of the case are, the lands measuring to an extent of 28104 sq.mts in S.No. 1587/1A etc., in Sriperumbudur Village, were acquired for widening of the existing road from Singaperumal Koil to Sriperumbudur Road. Notification under Section 15(2) of Tamil Nadu Highways Act 2001 was published in the Newspaper on 26.08.2009. Thereafter, notification under Section 15(1) of the said Act was published in Tamil Nadu Government Gazette on 02.06.2010. The Government then issued orders in G.O.Ms.No. 143, Highways Department dated 13.08.2012 reducing the width of the road from 60 mts to 50 mts. Consequently, the area under acquisition was reduced to 26416 sq.mts. A further notification under Section 15(2) of the said Act was issued on 12.05.2015. The writ petitioners herein received notices for payment of compensation for the lands acquired from each one of them as contemplated under Section 19(2) of the Act. The present petitions have been filed in the nature of Certiorarified Mandamus to quash the common Award No. 1 of 2020 dated 31.10.2020 passed by the first respondent with respect to the acquisition of lands belonging to the petitioners herein in Sriperumbudur Village and Taluk, in Kancheepuram District and the communication dated 06.11.2020 in Na.Ka.No. 10/2010/A issued by the third respondent. The counsel for the petitioner submits that the petitioners had been served only an extract of the common award passed by the first respondent. This extract contained only the calculation portion. The basis or the reasoning for arriving at such calculation had not been served on the petitioners herein. The petitioners are not at all aware as to how and on what basis the award had been arrived at. The learned counsel therefore stated that the petitioners could not seek a reference to the Court for further determination of the award. The counsel for the respondents submitted that, the petitioners have been served with an extract of the award for the lands acquired from each one of them. This calculation statement according to the learned counsel was self-explanatory and contained all the details which are required for determining the award amount. The learned counsel pointed out that a reference to the Court should have been made by the petitioners and they could have vented their grievances before the said jurisdictional Court. It has also been stated that some of the writ petitioners had also accepted to receive the award amount and had given that fact in writing. It had therefore been stated that the petitioners having accepted the award, the present writ petitions cannot be maintained. It had also been stated that after the award had been passed, the petitioners should approach the competent authority to raise grievances against the award and that the writ petitions are not maintainable.

1IN THE HIGH COURT OF JUDICATURE AT MADRASRESERVED ON: 17.08.2021 PRONOUNCED ON: 25.08.2021CORAMTHE HON BLE Mr. JUSTICE C.V.KARTHIKEYAN W.P.Nos. 18130 18548 18620 19566 19571 and 19574 of 2020W.P.Nos. 532 556 502 513 523 1849 542 549 and 554 of 2021AndW.M.P.Nos. 23094 23092 24184 24188 22988 24194 22994 and 225220W.M.P.Nos. 574 588 606 2085 595 602 608 2084 577 and 582 of 2021 N.Venugopal... Petitioner in W.P.No. 1813201.Thomas Innaiah Prabhu P.C 2.P.C.Singaraj... Petitioners in W.P.No. 1854201.C.Regeenal2.R.Rickson Raj3.R.Regila Rex4.Maria Rosa... Petitioners in W.P.No. 186220R.Pramila... Petitioner in W.P.Nos. 19566 19571 & 195720 https: www.mhc.tn.gov.in judis 2V.Sundaramoorth... Petitioner in W.P.Nos. 502 & 5121N.A.Vathchala... Petitioner in W.P.No. 5221V.Vijayakumar... Petitioner in W.P.No. 5321T.S.Arumugam... Petitioner in W.P.No. 5421R.M.Elango... Petitioner in W.P.Nos. 549 & 5521A.Natarajan... Petitioner in W.P.No. 5521N.A.Francis Xavier... Petitioner in W.P.No. 18421Vs.1.The District CollectorKancheepuram District Kancheepuram.2.The District Revenue OfficerKancheepuram District Kancheepuram.3.The Special Tahsildarfor acquisition of the land belong to the petitioner in S.No. 1568A 2C1 part subdivided as S.No. 1568A 5 to an extent of 210 sq.mtr Sriperumbudur Village and Taluk Kancheepuram District.Prayer in W.P.No. 185420: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for the records relating to the impugned communication issued by the third respondent in Award No. 01 2020 dated 31.10.2020 Na.Ka.No.10 2010 A dated 06.11.2020 and to quash the same and consequently directing the respondents to comply with legal requirements https: www.mhc.tn.gov.in judis 5required under section 19 of Tamil Nadu Highways Act 2001 as well as Section 26 of Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act 2013and the schedules for acquisition of the land belong to the petitioners in S.No. 1568A 2C3B part subdivided as S.No. 1568A 7 to an extent of 187 sq.mtr Sriperumbudur Village and Taluk Kancheepuram District.Prayer in W.P.No. 186220: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for the records relating to the impugned communication issued by the third respondent in Award No. 01 2020 dated 31.10.2020 Na.Ka.No.10 2010 A dated 06.11.2020 and to quash the same and consequently directing the respondents to comply with legal requirements required under section 19 of Tamil Nadu Highways Act 2001 as well as Section 26 of Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act 2013and the schedules for acquisition of the land belong to the petitioners in S.No. 1587 1A to an extent of 950 sq.mtr Sriperumbudur Village and Taluk Kancheepuram District.Prayer in W.P.No. 195620: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for the records relating to the impugned communication issued by the third respondent in Award No. 01 2020 dated 31.10.2020 Na.Ka.No.10 2010 A dated 06.11.2020 and to quash the same and https: www.mhc.tn.gov.in judis 6consequently directing the respondents to comply with legal requirements required under section 19 of Tamil Nadu Highways Act 2001 as well as Section 26 of Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act 2013and the schedules for acquisition of the land belong to the petitioner in S.No. 1587 1B part subdivided as S.No. 1587 8 to an extent of 1410 sq.mtr Sriperumbudur Village and Taluk Kancheepuram District.Prayer in W.P.No. 195720: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for the records relating to the impugned communication issued by the third respondent in Award No. 01 2020 dated 31.10.2020 Na.Ka.No.10 2010 A dated 06.11.2020 and to quash the same and consequently directing the respondents to comply with legal requirements required under section 19 of Tamil Nadu Highways Act 2001 as well as Section 26 of Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act 2013and the schedules for acquisition of the land belong to the petitioner in S.No. 1562B 1 part subdivided as S.No. 1562B 1A to an extent of 657 sq.mtr in Sriperumbudur Village and Taluk Kancheepuram District.Prayer in W.P.No. 195720: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for the records relating to the impugned communication issued by the third respondent in Award No. 01 2020 dated 31.10.2020 https: www.mhc.tn.gov.in judis 7Na.Ka.No.10 2010 A dated 06.11.2020 and to quash the same and consequently directing the respondents to comply with legal requirements required under section 19 of Tamil Nadu Highways Act 2001 as well as Section 26 of Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act 2013and the schedules for acquisition of the land belong to the petitioner in S.No. 1564B 3 part subdivided as S.No. 1564B 3 to an extent of 750 sq.mtr in Sriperumbudur Village and Taluk Kancheepuram District.Prayer in W.P.No. 5021: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for the records relating to the impugned communication issued by the third respondent in Award No. 01 2020 dated 31.10.2020 Na.Ka.No.10 2010 A dated 06.11.2020 and to quash the same and consequently directing the respondents to comply with legal requirements required under section 19 of Tamil Nadu Highways Act 2001 as well as Section 26 of Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act 2013and the schedules for acquisition of the land belong to the petitioner comprised in S.No. 1585B 2A3 part subdivided as S.No. 1585B 4 to an extent of 30 sq.mtr Sriperumbudur Village Kancheepuram District.Prayer in W.P.No. 5121: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for the records relating to the impugned communication issued by https: www.mhc.tn.gov.in judis 8the third respondent in Award No. 01 2020 dated 31.10.2020 Na.Ka.No.10 2010 A dated 06.11.2020 and to quash the same and consequently directing the respondents to comply with legal requirements required under section 19 of Tamil Nadu Highways Act 2001 as well as Section 26 of Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act 2013and the schedules for acquisition of the land belong to the petitioner comprised in S.No. 1567B 2 to an extent of 50 sq.mtr Sriperumbudur Village Kancheepuram District.Prayer in W.P.No. 5221: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for the records relating to the impugned communication issued by the third respondent in Award No. 01 2020 dated 31.10.2020 Na.Ka.No.10 2010 A dated 06.11.2020 and to quash the same and consequently directing the respondents to comply with legal requirements required under section 19 of Tamil Nadu Highways Act 2001 as well as Section 26 of Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act 2013and the schedules for acquisition of the land belong to the petitioner in S.No. 1568A 2C3A pt.subdivided as S.No. 1568A 8 to an extent of 200 sq.mtr Sriperumbudur Village and Taluk Kancheepuram District.Prayer in W.P.No. 5321: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus https: www.mhc.tn.gov.in judis 9calling for the records relating to the impugned communication issued by the third respondent in Award No. 01 2020 dated 31.10.2020 Na.Ka.No.10 2010 A dated 06.11.2020 and to quash the same and consequently directing the respondents to comply with legal requirements required under section 19 of Tamil Nadu Highways Act 2001 as well as Section 26 of Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act 2013and the schedules for acquisition of the land belong to the petitioner in S.No. 1564B 2D pt.subdivided as S.No. 1564B 2D to an extent of 400 sq.mtr Sriperumbudur Village and Taluk Kancheepuram District.Prayer in W.P.No. 5421: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for the records relating to the impugned communication issued by the third respondent in Award No. 01 2020 dated 31.10.2020 Na.Ka.No.10 2010 A dated 06.11.2020 and to quash the same and consequently directing the respondents to comply with legal requirements required under section 19 of Tamil Nadu Highways Act 2001 as well as Section 26 of Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act 2013and the schedules for acquisition of the land belong to the petitioner in S.No. 1571B 1A2 pt. subdivided as S.No. 1571B 25 to an extent of 332 sq.mtr Sriperumbudur Village and Taluk Kancheepuram District. https: www.mhc.tn.gov.in judis 10Prayer in W.P.No. 5421: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for the records relating to the impugned communication issued by the third respondent in Award No. 01 2020 dated 31.10.2020 Na.Ka.No.10 2010 A dated 06.11.2020 and to quash the same and consequently directing the respondents to comply with legal requirements required under section 19 of Tamil Nadu Highways Act 2001 as well as Section 26 of Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act 2013and the schedules for acquisition of the land belong to the petitioner in S.No. 1564B 1D to an extent of 100 sq.mtr Sriperumbudur Village and Taluk Kancheepuram District.Prayer in W.P.No. 5521: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for the records relating to the impugned communication issued by the third respondent in Award No. 01 2020 dated 31.10.2020 Na.Ka.No.10 2010 A dated 06.11.2020 and to quash the same and consequently directing the respondents to comply with legal requirements required under section 19 of Tamil Nadu Highways Act 2001 as well as Section 26 of Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act 2013and the schedules for acquisition of the land belong to the petitioner in S.No. 1564B 2A to an extent of 100 sq.mtr Sriperumbudur Village and Taluk Kancheepuram District. https: www.mhc.tn.gov.in judis 11Prayer in W.P.No. 5521: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for the records relating to the impugned communication issued by the third respondent in Award No. 01 2020 dated 31.10.2020 Na.Ka.No.10 2010 A dated 06.11.2020 and to quash the same and consequently directing the respondents to comply with legal requirements required under section 19 of Tamil Nadu Highways Act 2001 as well as Section 26 of Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act 2013and the schedules for acquisition of the land belong to the petitioner in S.No. 1570 3B1 subdivided as S.No. 1570 27 to an extent of 170 sq.mtr Sriperumbudur Village and Taluk Kancheepuram District.Prayer in W.P.No. 18421: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for the records relating to the impugned communication issued by the third respondent in Award No. 01 2020 dated 31.10.2020 Na.Ka.No.10 2010 A dated 06.11.2020 and to quash the same and consequently directing the respondents to comply with legal requirements required under section 19 of Tamil Nadu Highways Act 2001 as well as Section 26 of Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act 2013and the schedules for acquisition of the land belong to the petitioner in S.No. 1568A 2C2 subdivided as S.No. 1568A 6 to an extent of 217 sq.mtr Sriperumbudur Village and Taluk Kancheepuram District. https: www.mhc.tn.gov.in judis 12For Petitioners inall W.Ps. :Mr.G.SankaranFor Respondents inall W.Ps. :Mr. K.M.D. Muhilan Government AdvocateCOMMON ORDERBy consent of the learned counsel for the petitioners and the learned Government Advocate appearing for the respondents a common order is passed in all the Writ Petitions. 2.All these writ petitions have been filed in the nature of Certiorarified Mandamus to quash the common Award No. 20 dated 31.10.2020 passed by the first respondent with respect to the acquisition of lands belonging to the petitioners herein in Sriperumbudur Village and Taluk in Kancheepuram District and the communication dated 06.11.2020 in Na.Ka.No. 10 2010 A issued by the third respondent. 3.The lands measuring to an extent of 28104 sq.mts in S.No. 1587 1A etc. in Sriperumbudur Village were acquired for widening of the existing road from Singaperumal Koil to Sriperumbudur Road. Notification https: www.mhc.tn.gov.in judis 13under Section 15(2) of Tamil Nadu Highways Act 2001 was published in the Newspaper on 26.08.2009. Thereafter notification under Section 15(1) of the said Act was published in Tamil Nadu Government Gazette on 02.06.2010. The Government then issued orders in G.O.Ms.No. 143 Highways Department dated 13.08.2012 reducing the width of the road from 60 mts to 50 mts. Consequently the area under acquisition was reduced to 26416 sq.mts. A further notification under Section 15(2) of the said Act was issued on 12.05.2015. The writ petitioners herein received notices for payment of compensation for the lands acquired from each one of them as contemplated under Section 19(2) of the Act.4.In the affidavits filed in support of the writ petitions the petitioners have uniformly stated that they had attended the meeting in the office of the District Collector on 29.07.2016. It had been very specifically further stated that the District Revenue Officer who presided over the meeting did not mention the estimated amount individually to each one of the petitioners but rather compelled all the petitioners to fill up a form and sign it for the purpose of a common award. It was informed to the petitioners that irrespective of the category of the land the compensation https: www.mhc.tn.gov.in judis 14would be awarded at the rate of Rs.250 per sq.ft. The petitioners contend that the said value was very low and had been fixed arbitrarily by the respondents. Thereafter notices under Section 19(5) and 19(7) of the Act for enquiry on the common award was issued and the enquiry was scheduled to be held on 29.11.2018. The petitioners attended the enquiry. The petitioners however claim that they did not give their consent. As a matter of fact they claim that proper enquiry was not conducted by the second and third respondents. The second and third respondents read out a statement for the value of the lands and it had been claimed in the affidavit that this led to chaos and confusion. The petitioners also claimed that they were not handed over any statement giving the basis of how value of the land was determined. It was stated that the meeting ended abruptly. 5.It had been further stated that the petitioners received a communication dated 06.11.2020 from the third respondent informing that a common award had been passed on 31.10.2020 and enclosing only one sheet of the common award the first page containing the property taken up for acquisition and the second page containing the calculations for the common award. It had been claimed by the petitioners that the common https: www.mhc.tn.gov.in judis 15award in entirety was not served on them and therefore they did not know the actual reasons for arriving at the compensation amount as stated in the common award dated 31.10.2020.6.The petitioners had therefore preferred the present Writ Petitions seeking to quash not just the award dated 31.10.2020 passed by the first respondent but also the communication dated 06.11.2020 enclosing the calculation sheet of the common award of the third respondent. 7.Counter affidavits had been filed by the second respondent in which it had been sated that procedure as established by law and as recognised by law had been followed. The fact that notification under Section 15(2) of the said Act was published in the Daily Newspaper and notification under Section 15(1) of the said Act was published in the Tamil Nadu Government Gazette were stated. It was also pointed out that notices under Section 19(5) and 19(7) of the said Act for enquiry on the common award was also served on the writ petitioners. Thereafter the award No.120 dated 31.10.2020 was passed by the first respondent District Collector Kancheepuram District. Since the common award ran into 100 https: www.mhc.tn.gov.in judis 16pages and since the petitioners had already been informed about the estimated value for the acquisition to be paid as compensation the specific extract of the above relating to calculation of the award amount was served on each one of the petitioners. 8.It has also been stated that some of the writ petitioners had also accepted to receive the award amount and had given that fact in writing. It had therefore been stated that the petitioners having accepted the award the present writ petitions cannot be maintained. It had also been stated that after the award had been passed the petitioners should approach the competent authority to raise grievances against the award and that the writ petitions are not maintainable.9.Heard arguments advanced by Mr.G.Sankaran learned counsel for the writ petitioners and Mr.K.M.D.Muhilan learned Government Advocate appearing on behalf of the respondents.10.The grievance expressed by Mr.G.Sankaran learned counsel for the petitioners is that the petitioners had been served only an extract of https: www.mhc.tn.gov.in judis 17the common award passed by the first respondent. This extract contained only the calculation portion. The basis or the reasoning for arriving at such calculation had not been served on the petitioners herein. The petitioners are not at all aware as to how and on what basis the award had been arrived at. The learned counsel therefore stated that the petitioners could not seek a reference to the Court for further determination of the award.11.Mr.K.M.D.Muhilan learned Government Advocate has produced the entire original records for perusal of the Court. The learned counsel pointed out that the petitioners have been served with an extract of the award for the lands acquired from each one of them. This calculation statement according to the learned counsel was self explanatory and contained all the details which are required for determining the award amount. The learned counsel pointed out that a reference to the Court should have been made by the petitioners and they could have vented their grievances before the said jurisdictional Court. The learned counsel urged that these Writ Petitions are not maintainable. https: www.mhc.tn.gov.in judis 1812.I have carefully considered the arguments advanced and also the records produced. 13.The records produced reflect that the notices have been served on each one of the petitioners with respect to the award enquiry as contemplated under the various stages of acquisition. Notices had been served under Section 19(2) of the said Act. The meeting was held in the Office of the District Collector on 29.07.2016. It was presided by the District Revenue Officer. It is the claim of the writ petitioners that chaos and confusion prevailed during the said meeting but however they have not chosen to raise that grievance at the earliest instance. 14.Further notices as contemplated under Section 19(5) and 19(7) of the Award was also served on the writ petitioners on 12.11.2018. The meeting was held on 29.11.2018. There is no record to show that the petitioners gave representations or objections. The respondents have therefore followed the requisite procedure to the limited extent they can do so. There is no charge of mala fide against the respondents. https: www.mhc.tn.gov.in judis 1915.The first respondent after due consideration of the entire materials had passed a common award dated 31.10.2020. However the records show that an extract alone had been served on each one of the petitioners and the entire award copy had not been served on the petitioners. The extracts were served by communication dated 06.11.2020. Records are available for receipt of the same by the writ petitioners. 16.The normal procedure to be adopted next if the award is not acceptable is to seek reference to the Court for further determination of the award. The petitioners have not taken up that course but have rather filed the present writ petitions. 17.I would agree with Mr.G.Sankaran learned counsel for the writ petitioners that the petitioners even though some of them had accepted the common award are still entitled for individual copies of the entire award. Their lands had been acquired by the Government. They must be served with the award which would reflect that the lands were acquired the purpose for which the lands were acquired and the basis on which the value of the lands were estimated for compensation the total amount of https: www.mhc.tn.gov.in judis 20compensation actually determined and the reasons for such determination. These are all facts which each one of the petitioners would certainly like to know whether they accept the award or they seek reference to the Court for further determination of the award. At any rate a copy of the award in entirety must be served on the writ petitioners herein. 18.The stand taken by Mr.K.M.D.Muhilan learned Government Advocate that since the award ran to 100 pages it was not possible to serve a copy on each on of the writ petitioners has to be rejected since valuable land had been taken by the respondents and the common award must be served on each one of the petitioners. The petitioners also have a right to examine as to how their lands had been valued. They require reasons as to the basis on which the value of the land was determined. They require to also know the negative factors which affected the compensation amount. These are all factors which each one of the petitioners have a right to know and that can be done only when a copy of the award in entirety is served on the petitioners. https: www.mhc.tn.gov.in judis 2119.However the award cannot be set aside on the ground that it had not been served on the petitioners. 20.In Special Land Acquisition Officer v. Trustees of the Will of A.H. Wadia reported in 1956 SCC OnLine Bom 141 :58 Bom LR 766 a Division Bench of the Bombay High Court had stated as follows: “2. The award of the Land Acquisition Officer as has often been said is nothing more than an offer. It is open to the person whose lands are being acquired to accept that offer or he may not accept that offer and claim a reference to the Court. By claiming a reference to the Court and going to the Court he challenges the fairness of the compensation offered by the Land Acquisition Officer in his award and to the extent that he challenges the award he is in the position of a plaintiff and the burden is upon him to satisfy the Court that the award made is not a proper or a fair award.” 21.In Union of India v. Special Land Acquisition Officer https: www.mhc.tn.gov.in judis 226 SCC 454 at page 455 it had been stated as follows: “2. The award of the Collector is an offer made on behalf of the State and therefore under law the State cannot question the correctness of the award determined by the Land Acquisition Officer. The State is bound by the same.”22.It is thus seen that the award passed is only an offer. This has to be served in entirety to enable the person whose lands had been acquired to take a decision to either accept the offer or claim a reference to the Court. This decision can be taken only when the reasons for arriving at the compensation given in the award are disclosed. In this case the petitioners have not been served with the award in entirety. They are entitled for the same.23.In Cyril Lasrado v. Juliana Maria Lasrado 7 SCC 431 : 2004 SCC OnLine SC 868 at page 436 it had been observed as follows: “12. Even in respect of administrative orders https: www.mhc.tn.gov.in judis 23Lord Denning M.R. In Breen v. Amalgamated Engg. Union1 All ER 1148 :2 QB 175 :2 WLR 742observed:“The giving of reasons is one of the fundamentals of good administration.” In Alexander MachineryLtd. v. Crabtreeit was observed: “Failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at.” Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the “inscrutable face of the sphinx” it can by its silence render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system reasons at least sufficient to indicate an application of mind to the matter before court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made in other words a speaking out. The “inscrutable face of the sphinx” is ordinarily incongruous with a judicial or quasi https: www.mhc.tn.gov.in judis 24judicial performance.”24.I would therefore direct a fresh copy of the award dated 31.10.2020 to be served on each one of the petitioners herein even if they had accepted the award and had accepted to receive the award amount. The respondent is under obligation to serve a copy of the award in its entirety on each one of the writ petitioners within a period of two weeks from the date of receipt of a copy of this order. Thereafter the petitioners may take a decision whether to accept the award or to proceed further in the manner known to law within the time prescribed period from the date of receipt of a copy of the award in entirety as aforesaid directed.25.With the above observations these Writ Petitions stand disposed of without interfering with the award dated 31.10.2020 passed by the first respondent. No order as to costs. Consequently connected Miscellaneous Petitions are closed. 25.08.2021Index:Yes NoInternet:Yes NovsgTo https: www.mhc.tn.gov.in judis 251.The District CollectorKancheepuram District Kancheepuram.2.The District Revenue OfficerKancheepuram District Kancheepuram.3.The Special Tahsildar (LA)Oragadam Industrial Park RoadInfrastructure SchemeRamanuja NagarSriperumbudur 602 105.4.The Chief Engineer (GeneralHighways DepartmentIntegrated Chief Engineers Office Complex76 Sardar Patel Road Little Mount GuindyChennai 600 025.5.The Secretary to GovernmentThe State of Tamil NaduState Highways Department Secretariat Fort St. George Chennai 600 009.C.V.KARTHIKEYAN J. https: www.mhc.tn.gov.in judis 26 vsg6.The Special Tahsildar (LA)Oragadam Industrial Park RoadInfrastructure SchemeRamanuja LaneSriperumbudur 602 106Kancheepuram District.7.The Chief Engineer (GeneralHighways DepartmentChepauk Chennai 600 005.8.The Divisional Engineer II TNRSP II Highways Department Kancheepuram District Kancheepuram.Pre delivery order made in W.P.Nos. 18130 18548 18620 19566 19571 and 19574 of 2020W.P.Nos. 532 556 502 513 523 1849 542 549 and 554 of 2021AndW.M.P.Nos. 23094 23092 24184 24188 22988 24194 22994 and 225220W.M.P.Nos. 574 588 606 2085 595 602 608 2084 577 and 582 of 2021 25.08.2021 https: www.mhc.tn.gov.in judis

“Response to the query would be an answer either affirmative or negative, depending on the available records…”: Appellate Authority, SEBI, Part 1.

The appellate authority under the RTI (Right to Information) Act of the Securities and Exchange Board of India comprising of Mr. Amarjeet Singh adjudicated in the matter of Swaminath Singha v CPIO, SEBI, Mumbai (Appeal No. 4324 of 2021) dealt with an issue in connection with Section 2 (f) of the Right to Information Act, 2005. The appellant, Mr Swaminath Singha had filed an application via RTI MIS Portal on the 2nd of April, 2021 under the Right to Information Act, 2005. The respondent responded to the application by a letter on the 7th of May, 2021, filed by the appellate. After receiving a letter from the respondent on 7th of May, 2021, on his application, the appellate decided to file an appeal on the 1st of June, 2021, which the Office of Appellate Authority received on the 9th of June, 2021. On perusal of the appeal, it appears that the appellant is aggrieved by the response provided by the respondent. The queries and the response provided thereto are discussed in the following paragraphs in light of the submissions made by the appellant. Before analysing the queries and the responses, it was noted that the appellant being director of Apna Pariwar Agro Farming Developers India Ltd. (company), was one of the noticees in the proceedings wherein the order dated 3rd of May, 2018 was passed and directions for refund of money were issued.

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

In respect of Railways, CBI’s authority falls outside the purview of state’s authority to grant consent: Calcutta High Court

The Authority of the CBI to investigate in the jurisdiction of Railway Area will remain unfettered by the withdrawal or grant of consent by the State Government. The judgment was given by the single bench of Hon’ble Justice Sabyasachi Bhattacharya in the case of Anup Majee vs.Union of India [WPA no.10457 of 2020] by stating the above-cited reasons. In the instant case, An FIR was lodged against the accused (appellant) for being involved in criminal conspiracies, criminal breach of trust by public servants, and criminal misconduct by public servants by dishonestly or fraudulently misappropriating the property entrusted to them or any property under their control as public servants or allowing other persons to do so. The accused was the director of a company named Mark Enclave Private Limited, which was engaged in the business of purchase and sale of coal. The FIR specified the place of occurrence of the offence as leasehold area of ECL under Kunustoria, Kajora area, District West Burdwan, corresponding Railway Sidings, and other places. The petitioner was one of the accused persons named in the FIR. The arguments were held that the extension of powers and jurisdiction of the CBI to any area (including Railway areas) in a State, granted by the Central Government under Section 5, is subject to the consent of the concerned State Government under Section 6 of the 1946 Act. Thus, in view of the withdrawal of such consent by the State of West Bengal, the CBI had no authority to register FIR and conduct an investigation pursuant to the same within West Bengal. And it was argued that railway areas are exempt from the purview of the State’s consent u/s 6. On the contrary, the respondent’s counsel argued that the Railways Act, 1989 is a complete code by itself and covers Railway offences. As such, it is argued that the CBI has no authority to investigate in Railway areas, in the absence of any consent by the State Government in that regard. As such, the conduct of the investigation by the CBI for such offence, in Railway areas, is dehors the law. It was contended that the present investigation was in connection with illegal mining of coal, which can only take place in coal mines and not in Railway areas. It was submitted that Section 6 2(32A) of the 1989 Act describes “Railway land” as any land in which a Government Railway has any right, title, or interest.

In the High Court at Calcutta Constitutional Writ Jurisdiction Appellate Side The Hon’ble Justice Sabyasachi Bhattacharyya WPA No. 104520 Anup Majee Vs. Union of India and others For the petitioner For the Union of India For CBI For the State Mr. Farooq A. Razzak Mr. Monoj Malhotra Mr. Sabir Ahmed Mr. Subir Farrok Mr. Abdur Rakib Mr. Shraman Sarkar Mr. Apan Saha Mr. Phiroze Edulji Mr. Debu Chowdhury Mr. Y.J. Dastoor Mr. Samrat Goswami Mr. Kishore Dutta Mr. Abhratosh Majumder Mr. Subhabrata Datta Mr. Debashis Sarkar Hearing concluded on Judgment on Sabyasachi Bhattacharyya J: The petitioner is a director of a company named Mark Enclave Private Limited which is engaged in the business of purchase and sale of coal. In the course of its business the petitioner’s company purchased coal from various organisations including the Eastern Coalfield Limitedrespondent no.2 herein started investigation on the basis of FIR No. RC 0102020A0022 dated November 27 2020. As per the FIR the suspected offence was criminal conspiracy criminal breach of trust by public servants and criminal misconduct by public servants by dishonestly or fraudulently misappropriating the property entrusted to them or any property under their control as public servants or allowing other persons to do so. The FIR specified the place of occurrence of the offence as leasehold area of ECL under Kunustoria Kajora area District West Burdwan corresponding Railway Sidings and other places. The petitioner was one of the accused persons named in the FIR. Learned counsel for the petitioner challenges the FIR on several grounds. It is submitted that the consent given by the State of West Bengal under Section 6 of the Delhi Special Police Establishment Act 1946 on August 2 1989 was withdrawn vide a subsequent Notification dated November 16 2018 published in the Official Gazette. It is submitted that the extension of powers and jurisdiction of the CBI to any areain a State granted by the Central Government under Section 5 is subject to consent of the concerned State Government under Section 6 of the 1946 Act. Thus in view of the withdrawal of such consent by the State of West Bengal the CBI had no authority to register FIR and conduct investigation pursuant to the same within West Bengal. Secondly it is argued even it is assumed for argument’s sake that Railway areas are exempt from the purview of the State’s consent under Section 6 the FIR disclosed the place of occurrence primarily to be the ECL area pertaining to coal mines and could not occasion any investigation in Railway areas. Learned Counsel for the petitioner argues that the petitioner’s company has been engaged in legal purchase and sale of coal. Several documents annexed to the writ petition are relied on to indicate that the petitioner’s company participated in legal e auctions and made valid purchases of coal obviating the scope of any illegal activity on the part of the petitioner on that score. It is submitted that ‘Railway area’ as mentioned in Sections 5 and 6 of the 1946 Act has not been defined in the said Act. As such the withdrawal of consent by the State of West Bengal denuded the CBI of any authority to conduct investigation within the territory of West Bengal including Railway areas. It is further argued that the initial extension of jurisdiction by the Central Government vide order dated February 18 1963 only ‘West Bengal’ thus excluding Railway areas. For conferment of such power on the CBI in terms of Section 5 of the 1946 Act it is argued Railway areas if intended to be covered have to be specifically mentioned in the order of conferment of jurisdiction. In the absence of such mention in the original order of extension of powers the CBI has no authority to continue their investigation on the basis of the impugned FIR. Placing reliance on Kazi Lhendup Dorji vs. Central Bureau of Investigation and others reported at 1994 Supp SCC 116 learned counsel for the petitioner submits that an order revoking consent under Section 6 of the 1946 Act can only have prospective operation. However in the present case the FIR was registered subsequent to the withdrawal of consent by the State of West Bengal and was thus It is further argued that the place of occurrence as mentioned in the FIR is the leasehold area of the ECL which does not fall within the contemplation of Section 2(31) of the Railways Act 1989 which defines “Railway” and thus may be considered as a reference point for ascertaining the area covered by the Railways. It is additionally argued that the 1989 Act pertains to revenue and does not contemplate any investigation as such. 10. Learned Advocate General appearing for the State respondent argues that the Railways Act 1989is a complete Code by itself and covers Railway offences. As such it is argued that the CBI has no authority to investigate in Railway areas in the absence of any consent by the State Government in that regard. 11. The allegations in the FIR relate to coal mining in mine areas which are beyond Railway areas. As such the conduct of investigation by the CBI for such offence in Railway areas is de hors the law. 12. Learned Advocate General contends that in view of the withdrawal of consent under Section 6 of the 1946 Act by the State of West Bengal the CBI has no authority to continue investigation in West Bengal unless a fresh extension is granted by the Central Government with the consent of the State Government of West Bengal. It is further argued by the learned Advocate General that the Railway Protection Force Act 1957another statute governing railway property was enacted to provide for the constitution and regulation of an armed force of the Union for the better protection and security of Railway property passenger area and passengers and for matters connected therewith. In view of the constitution of a separate force namely the Railway Protection Force for such purpose the CBI has no authority to investigate in any Railway area for offences relating to Railway property. In the present case it is submitted even if it is assumed that the allegations in the impugned FIR partially relate to the transport of stolen coal via railway tracks the 1957 Act and connected Rules of 1987 provide sufficiently for conduct of investigations into such matters by the Railway Protection Force. The 1957 Act and the 1989 Act being special statutes with regard to Railway areas the CBI has no jurisdiction to conduct such investigations. In any event it is argued that the present investigation is in connection with illegal mining of coal which can only take place in coal mines and not in Railway areas. It is submitted that Section 2(32A) of the 1989 Act describes “Railway land” as any land in which a Government Railway has any right title or interest. 15. On the other hand “Railway property” has been defined in Section 2(e) of the 1957 Act to include any goods money or valuable security or animal belonging to or in the charge or possession of a Railway administration. 16. None of the above definitions cover mine areas to which the impugned investigation pertains. 17. By relying on Rule 222.1 of the 1987 Rules learned Advocate General argues that comprehensive provision has been made therein for investigation being conducted by the authorities prescribed in the Rules. The CBI is not one of such authorities. It is thus argued that even if arguably stolen coal was being transported by booking a consignment it became ‘Railway property’ as defined in Section 2(e) of the 1957 Act. Thus it is the Railway Protection Force which has the authority to investigate into any matter of theft pilferage etc. of such goods and not the CBI. 18. The learned Advocate General next relies on the definition of “consignor” as given in Section 2(10) of the 1989 Act which means a person named in a Railway receipt as consignor by whom or on whose behalf the goods covered by the Railway receipt are entrusted to a Railway administration for carriage. Sub section of Section 2 defines “consignee” as a person named as consignee in a Railway receipt and sub section thereof defines “consignment” as goods entrusted to a Railway administration for carriage. Thus goods carried by the Railways falls within the purview of the 1989 Act which is a self contained Code and provides for remedies relating thereto. 19. The learned Advocate General relies on State of West Bengal and others vs. Committee for Protection of Democratic Rights West Bengal and others reported at 3 SCC 571 wherein it was held that a direction by the High Court in exercise of its jurisdiction under Article 226 of the Constitution for the CBI to investigate a cognizable offence alleged to have been committed within the territory of a State without the consent of that State will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid in law. However the Supreme Court observed that despite wide powers conferred by Articles 32 and 226 of the Constitution while passing any order the courts must bear in mind certain self imposed limitations on the exercise of such powers. The very plentitude of the power under the said Articles requires great caution in its exercise. Insofar as the question of issuing a direction to CBI to conduct investigation in a case is concerned although no inflexible guidelines can be laid down to decide whether or not such power should be exercised time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. The extraordinary power must be exercised sparingly cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise the CBI would be flooded with a large number of cases and with limited resources may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations. 20. Learned Advocate General next cites State of West Bengal and others vs. Sampat Lal and others reported at 1 SCC 317 where the question as to appointment of the DIG CBI to enquire into a matter in the absence of proper consent of the State Government was canvassed before the Supreme Court and it was accepted by counsel for all the parties including the Additional Solicitor General that while Section 6 of the 1946 Act would require the consent of the State Government before jurisdiction under Section 5 of the Act is exercised by Officers of that Establishment when a direction is given by the court in an appropriate case the consent envisaged under Section 6 of the Act would not be a condition precedent to compliance with the court’s direction. The Supreme Court observed in the said report that in its considered opinion Section 6 of the Act does not apply when the court gives a direction to the CBI to conduct an investigation and counsel for the parties rightly did not dispute the position. 21. The learned Advocate General next relies on M. Balakrishna Reddy vs. Director Central Bureau of Investigation New Delhi reported at4 SCC 409 wherein the Supreme Court held that a plain reading of 9 the provisions of the 1946 Act goes to show that for exercise of jurisdiction by CBI in a State consent of the State Government is necessary. In other words it was held before the provisions of the 1946 Act are invoked to exercise power and jurisdiction by the Delhi Special Police Establishment in any State the following conditions must be fulfilled: A Notification must be issued by the Central Government specifying the offences to be investigated by Delhi Special Police EstablishmentAn order must be passed by the Central Government extending the powers and jurisdiction of the Delhi Special Police Establishment to any State in respect of the offences specified under Section 3and iii) Consent of the State Government must be obtained for the exercise of powers by Delhi Special Police Establishment in the Stateempowers enrolled members of the Force to protect and safeguard Railway property and to combat crime against it thereby leaving no scope for the CBI to deal with such cases. In reply learned Additional Solicitor General appearing for the CBI submits that Section 5 of the 1946 Act was invoked in the present case to extend the powers of the CBI to investigate cases of national importance spread over several States of India. Rampant illegal mining and theft of coal in several States including West Bengal and the Railway areas and mines falling within such States prompted the extension of the powers of CBI to look into those matters. It is argued that Entry No. 80 of List I of the Seventh Schedule of the Constitution mentions under the Union List the extension of the powers and jurisdiction of members of a police force belonging to any State to any area outside that State but not so as to enable the police of one State to exercise powers and jurisdiction of any area outside that State without the consent of the Government of the State in which such area is situated extensions of the powers and jurisdiction of members of a police force belonging to any State to Railway areas outside that State. As such Railway areas have been carved out as an exception to the fetter of consent of the concerned State. In the present case seizures were made by the Security Force of the ECL in the first place who conducted the preliminary enquiry into the matter. The CBI had no role to play till the First Information Report FIR) was lodged after such preliminary enquiry. Placing certain portions of the FIR the learned Additional Solicitor General argues that the coal theft in question was also being carried on at Railway Sidings as evident from the FIR itself. 26. Learned counsel for the petitioner at this juncture places reliance on Fertico Marketing and Investment Pvt. Ltd. and others vs. Central Bureau of Investigation and another reported at 2020 SCC OnLine SC 938. In the said case a previous judgment of Kanwal Tanuj vs. State of Bihar and others reported at 2020 SCC OnLine SC 395 was referred to wherein the question arose as to whether when an offence was committed in the Union Territory and one of the accused was residing employed in some other State outside the said Union Territory the members of the DSPE had power to investigate the same unless there was a specific consent given by the concerned State under Section 6 of the 1946 Act. The contention on behalf of the appellant before the High Court was that since the appellant was employed in connection with the affairs of the Government of Bihar an investigation was not permissible unless there was a specific consent of the State of Bihar under Section 6 of the said Act. The Supreme Court rejected such contention holding that if the offence is committed in Delhi merely because the investigation of the said offence incidentally transcends to the Territory of the State of Bihar it cannot be held that the investigation against an Officer employed in the Territory of Bihar cannot be permitted unless there was specific consent under Section 6 of the 1946 Act. In any event the Supreme Court held that the respondent State having granted general consent in terms of Section 6 of the Act it was not open to the State to argue to the contrary. It is thus argued by the petitioner that in the present case such general consent was withdrawn by the State. As such the CBI had no authority to investigate or interrogate persons within the territory of the State of West Bengal. 27. Learned Additional Solicitor General in reply submits that Fertico Marketing clearly empowers the CBI to investigate and interrogate persons outside the Union Territory if the case originated within the Union Territory. In the present case since the FIR was lodged in connection with railway sidings as well the CBI has full authority to interrogate persons and investigate even outside the Railway areas irrespective of the consent of the State. It is argued that the initial conferment of power under Section 5 of the 1946 Act covered the entire State of West Bengal including the Railway areas. The subsequent withdrawal of consent by the State could not operate in respect of Railway areas. It is unimaginable it is contended that an agency conducting investigation in the Railway areas on the basis of an FIR if necessary for the purpose of investigation cannot interrogate persons or continue investigation in other areas as well in connection with such FIR. The CBI has been empowered to investigate the rampant coal mining offences spread over various States including West Bengal thus the said agency can very well go into any area within the State of West Bengal for the ancillary purpose of investigation into connected matters irrespective of Section 6 of the 1946 Act. 29. Upon considering the materials and hearing the contesting parties the question which acquires relevance in the present case is whether the CBI has jurisdiction to investigate in the State of West Bengal by virtue of its initial conferment of power by the Central Government Notification dated February 18 1963 in view of the consent under Section 6 of the 1946 Act granted by the State of West Bengal on August 2 1989 having been withdrawn subsequently by a Notification dated November 16 2018. 30. Despite the arguments of the learned Advocate General to the tune that the 1957 and 1989 Acts are self contained Codes and preclude the powers of the police and the CBI to investigate into matters falling within the Railway areas such argument is rather irrelevant for the present context. The 1989 Act clearly pertains to revenue earned by the Railway administration and consequent compensation for loss damage etc. of goods being transported by the Railways. The expression “Railway land” as defined in Section 2(32A) of the 1989 Act merely mentions any land in which a Government Railway has any right title or interest. 31. The 1957 Act on the other hand pertains to Railway offences that is offences relating to “Railway property” which expression as per Section 2(e) of the 1957 Act includes goods money or valuable security etc. belonging to or in charge or possession of a Railway administration. The said Act was enacted for constitution and regulation of an Armed Force for the limited purpose of better protection and security of Railway property passenger area and passengers. In the present case the offence on which the impugned FIR was lodged relates to illegalities regarding coal mining and corruption related thereto. As such the genesis of the alleged offence does not fall within the purview of either the 1957 or the 1987 Act. Thus the argument that the Railway Protection Force or the Railway authorities have sufficient powers to deal with Railway properties is not valid for the present purpose. 32. The offence in the present case relates to coal mining and theft of coal and not any offence to Railway properties as envisaged under the 1957 and 1989 Acts or the connected Rules. Therefore there is no bar within the periphery of the said Acts for the CBI to conduct the present investigation. 33. As far as the 1946 Act is concerned no definition of “Railway area” is given therein. As such contemporaneous extant statutes which pertain to Railway areas ought to be looked into for the purpose of ascertaining the purport of the expression. The definition of “Railway property” in Section 2(e) of the 1957 Act and of “Railway land” in Section 2(32A) of the 1989 Act do not provide ample clarity on the exact nature of areas covered by the expression “Railway area”. Thus it is necessary to look into the definition closest in meaning to Railway area as used in the 1946 Act. 34. For such purpose the closest in proximity and most comprehensive description is the definition of “Railway” given in Section 2(31) of the 1989 Act. The said definition is quoted hereinbelow: “The Railways Act 1989: Section 2(31): “railway” means railway or any portion of a railway for the public carriage of passengers or goods and includes a) all lands within the fences or other boundary marks indicating the limits of the land appurtenant to a railway b) all lines of rails sidings or yards or branches used for the purposes of or in connection with a railway c) all electric traction equipments power supply and distribution installations used for the purposes of or in connection with a railway d) all rolling stock stations offices warehouses wharves workshops manufactories fixed plant and machinery roads and streets running rooms rest houses institutes hospitals water works and water supply installations staff dwellings and any other works constructed for the purpose of or in connection with railway e) all vehicles which are used on any road for the purposes of traffic of a railway and owned hired or worked by a railway and f) all ferries ships boats and rafts which are used on any canal river lake or other navigable inland waters for the purposes of the traffic of a railway and owned hired or worked by a railway administration but does not include a tramway wholly within a municipal area and lines of rails built in any exhibition ground fair park or any other place solely for the purpose of recreation ” 35. Thus it is seen that all conceivable areas covered by the Railways including rails sidings yards or branches used for the purposes of or in connection with Railway fall within the periphery of Railway area. In the absence of any apt alternative such definition has to be borrowed for the purpose of defining Railway area as contemplated in the 1946 Act. 36. The initial order issued by the Government of India Ministry of Home Affairs on February 18 1963 extended the powers and jurisdiction of members of Delhi Special Police Establishment under sub section of Section 5 of the 1946 Act to several States including West Bengal for the investigation of offences specified in the Schedule annexed thereto. 37. The language used in Section 5(1) of the 1946 Act is the Central Government “may by order extend to any area in a State not being a Union Territory the powers and jurisdiction of members of the Delhi Special Police Establishment for the investigation of any offences or classes of offences specified in a Notification under Section 3”. Thus an order extending such powers need not separately stipulate Railway areas for the purpose of extension of powers. The mention of the concerned State in the order of extension is sufficient to include Railway areas falling within such State since the extension contemplated in Section 5(1) is inclusive. It speaks of extension to any area in a State putting the expression “including Railway areas” within parenthesis thereby attaching an inclusiveness to the expression. Hence the extension of power to a State would automatically include Railway areas falling therein in the absence of any specific exclusion of such areas in the order conferring such powers. 38. Moreover till withdrawal of consent by the State in 2018 there was no grievance of the Government of West Bengal in the operation of the CBI within the State including Railway areas. As such the conferment of power has to be deemed to include Railway areas within West Bengal as well. 39. Even the initial consent accorded by the Governor of West Bengal vide Notification dated August 2 1989 spoke of the extension of powers and jurisdiction of all members of the Delhi Special Police Establishment to the “State of West Bengal” for investigation of offences stipulated therein. The withdrawal of consent vide Notification dated November 16 2018 also referred to the “State of West Bengal”. 40. Since under Section 6 the consent of the State Government operates only in respect of a State and not Railway areas which are specifically excluded in the section the grant or withdrawal of consent by the State Government is irrelevant in respect of Railway areas. The initial extension of power by the Central Government being for the entire State of West Bengal without any qualification or exclusion of Railway areas even despite the subsequent withdrawal of consent by the State such extended powers of the Delhi Special Police Establishment never ceased to continue in respect of Railway areas falling within the territory of West Bengal. 41. Even Fertico Marketingobserved that if the FIR originated in a Union Territory interrogation and investigation could extend to the State of Bihar irrespective of the specific consent of the State of Bihar. However the existence of a general consent in the said case unlike the present is a distinguishing factor. Thus the ratio laid down therein is not applicable in terms to the present case. 42. State of West Bengal and others vs. Committee for Protection of Democratic Rights West Bengal and otherswas rendered on a different footing than the instant case. The Supreme Court held there that the court under Articles 226 and 32 of the Constitution of India has powers of judicial review which includes a direction upon the CBI to take up any investigation in relation to a crime which was otherwise within the jurisdiction of the State police. 43. Such exercise of power by the courts was held not to be circumscribed by the fetters of Section 6 of the 1946 Act since the section only creates a restriction on the Central Government to extend the powers of the Delhi Special Police Establishment in the absence of consent of the State. The ingredients of federalism ingrained in our Constitution interdicts in the Central Government imposing its will on the State Governments insofar as the conduct of investigation under the 1946 Act is concerned. The 1946 Act provides sufficient safeguard in the form of Section 6 which contemplates a consent by the State Government in that regard. However for obvious reasons Railway areas were excluded since such areas spread over the whole of the country and are interconnected. Therefore it would be absurd if each and every State asserts rights over the Railway areas to impose their own fiat regarding such areas which would adversely affect the continuity of services and operation of the Railways. 44. As far as Sampat Lal’s case is concerned again the courts’ power to give direction to the CBI was held to be unfettered by Section 6 of the 1946 Act. In the present instance no specific case has been made out for an independent direction by the court on the CBI to conduct the investigation. 45. The present challenge relates to exercise of powers by the CBI on the strength of a Notification of the Central Government in the light of 20 West Bengal. withdrawal of consent under Section 6 of the 1946 Act by the State of 46. Thus the aforesaid judgments do not have any application in the present case. The scope of this court in the present writ petition is only to consider the legality and scope of investigation of the CBI in view of the withdrawal of consent by the State and not to independently direct any such investigation. In M. Balakrishna Reddy the Supreme Court observed that there was no particular form of consent to be given by the State under Section 6 of the 1946 Act. Thus it was held that the State had given its consent for the conduct of investigation by the CBI which renders the ratio laid therein inapplicable to the present case as well. 48. Kazi Lhendup Dorji laid down the proposition that an order giving or revoking consent under Section 6 of the 1946 Act has only prospective operation. Such contention is not of much relevance in the present case since the FIR was registered only after the withdrawal of consent by the State. 49. A composite reading of Sections 5 and 6 of the 1946 Act makes it evident that the grant or withdrawal of consent by the State Government though valid for other territories in the State does not have any repercussion on Railway areas. As observed earlier in the present case the initial order of extension of power of the Delhi Special Police Establishment was in respect of the entire State of West Bengal which includes the Railway areas lying therein in the absence of any specific exclusion being mentioned in the order of extension. Thus the authority of the CBI to investigate into the allegations in the present case within Railway areas remains unfettered by the withdrawal of consent by the State Government in 2018 for the simple reason that the extension of powers of the CBI in respect of Railway areas even in West Bengal falls outside the purview of the State’s authority to grant or withdraw consent. 50. Although it might lead to certain practical difficulties for the CBI to investigate in the Railway areas falling within the State of West Bengal while not being able to conduct such investigation in the other areas of the State such a conclusion is unavoidable as per the scheme of the 1946 Act particularly keeping in mind the federal structure recognized by the Constitution of India. 51. Hence upon a complete assessment of the relevant statutes and the cited reports it can only be concluded that the CBI has powers to investigate by virtue of the Order dated February 18 1963 issued by the Government of India Ministry of Home Affairs and to continue such investigation in the Railway areas in so far as the State of West Bengal is concerned. As a necessary corollary the CBI shall have the authority to summon any witness or suspect for the purpose of interrogation even if they reside outside the Railway areas in West Bengal to the limited extent as such interrogation is necessary for investigation within the Railway areas. 22 manner: 52. Accordingly WPA No. 10457 of 2020 is disposed of in the following The FIR impugned in the present writ petition being validly lodged is not interfered with by this court The Central Bureau of Investigation is authorized to continue its investigations in respect of the said FIR in whatsoever manner within the “Railway areas” situated in West Bengal of the Railways Act 1989] iii) Although the CBI is not authorized to conduct physical raids and or active investigation into other areas of West Bengal than the Railway areas it can summon and interrogate witnesses residing in West Bengal even in places other than Railway areas for the purpose of such investigation In the event the CBI deems it necessary for the purpose of such investigation within the Railway areas in West Bengal and in other States pertaining to the FIR impugned herein the CBI will be at liberty to approach the State authorities of West Bengal for the purpose of the latter’s co operation in the matter and necessary permission to hold joint raids and or investigation. However such action in areas beyond the Railway areas shall be conducted by the CBI only subject to specific consent being granted by appropriate authorities of the State of West Bengal and 23 This order will not prevent the State Government from granting fresh consent under Section 6 of the Delhi Special Police Establishment Act 1946 in the event it so deems fit for the extension of the powers and jurisdiction of the CBI to places in West Bengal other than the Railway areas. 53. There will no order as to costs. 54. 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. )

Phone Tapping Violates Article 21 Unless Permitted by Procedure Established by Law: Chhattisgarh High Court

The dismissal order shall be focused solely on telephone communication recorded, which, therefore, would amount, against the dictum established by the Supreme Court, to offending Article 21 of the Indian Constitution. Therefore, a judicial judgment cannot isolate the reason for dispensation from the enquiry on the basis of a registered telephone discussion. This auspicious judgment was passed by The High Court of Chhattisgarh, in the Matter of Toman Lal Sahu S/O Panth Ram Sahu Vs State of Chhattisgarh [WPS No. 5287 of 2012] By Honorable Justice Justice Goutam Bhaduri. The pleas of the petitioners who were dismissed from service without there being any departmental enquiry, merely on the basis of CD transcriptions of the conversation (with a criminal). Significantly, the orders of dismissal were passed in the back-drop of involvement of the petitioners with a hardcore criminal and the petitioners were in a telephonic conversation with him to extend some favour and the said conversation was converted in a CD. The court stated that “since the services were terminated on the basis of the telephonic/mobile conversations by invoking power under Article 311(2) Clause (b), as such, no departmental inquiry was held.” Further, when the said dismissal order was subject to departmental appeal, the same was also affirmed in the appeal. The challenge in the petitions before the Court, therefore, was to the dismissal orders passed by the respondent State Respondents. It was alleged by the petitioners that the source of CD was not disclosed and the alleged telephonic conversation, which was converted into CD, which recorded the conversation was also not supplied to the petitioners. The court observed that the “orders didn’t disclose the fact as to how the voices of the petitioners were identified and it was clarified as to whether proper assistance of any officer was taken to identify the voice of the petitioners or the criminal in question. The Court also noted that the compact disk was not sent for examination to any expert or to any Forensic Science Laboratory and that the telephones or the mobiles in which the voice of conversation was recorded were not produced in original.” Noting that Section 65-B of the Evidence Act lays down certain procedure to be followed about the admissibility of the electronic record, the Court remarked, “When a question comes to fore that whether any valid procedure or statutory mandate was followed to dispense with the departmental enquiry which proceeded on the premises of a telephonic recorded statement, the obvious answer would be in negative.”

1AFRHIGH COURT OF CHHATTISGARH BILASPU R and subsequent dismissal orders dated 28.07.2011Clausewithout there being any 3departmental enquiry. Since the services were terminated on the basis of the telephonic mobile conversations by invoking power under Article 311(2) Clauseas such no enquiry was held. when the said dismissal order was subject to departmental appeal the same was also affirmed in appeal. The challenge in these petitions therefore is to the dismissal orders passed by the respondent State Respondents.3.Learned counsel for the petitioners would submit that admittedly before the petitioners were dismissed from services though the ground was taken that if the departmental enquiry is held no evidence would be available but the reading of dismissal order would show that the mandatory requirement of Article 311(2)(b) were not satisfied. They would submit that on the basis of source of alleged conversation converted in a Compact Diskthe petitioners services were terminated. It was contended that neither the source of CD was disclosed nor the CD was supplied to the petitioners and even it was not revealed in the dismissal order whether the voice which has been relied upon by the State respondents is that of the petitioners and the accused Anwar. Learned counsel would further submit that even if the State was of the opinion that the voice of conversation is of the petitioners then it could have been proved by any Forensic expert. They would further submit that when the basic ground on which the dismissal orders were passed is on the telephone conversation tape such action of State Respondents cannot be allowed as recording of telephonic conversation offends Article 21 of the 4Constitution. He placed reliance in AIR 1997 SC 568 People s Union for Civil LibertiesV. Union of India and would submit that in the like nature of the cases in absence of compliance of valid procedure guidelines the action of respondents cannot be held statutory and the conversation so recorded cannot be used to dismiss the service as the statutory mandates were not followed. They would further submit that dispensing with the enquiry on the mere recording of conversation will not bring home the requirement. Further reliance is placed in AIR 1987 S.C. 1137 Shyam Lal Sharma V. Union of India.4.Learned Counsel further relies on a judgment passed by the Division Bench of this Court in State of M.P. Versus R. P. Katiyar and another 2006 1 CGLJ 398 and would submit that before passing such dismissal order the petitioners are entitled for full fledged enquiry and only on the basis of sole satisfaction of the respondent officers the dismissal of petitioners from services in the like nature cannot be accepted as it would offend Article 311 of the Constitution. 5.Learned counsel for the petitioners would further submit that dispensing with the enquiry cannot be logically accepted for the reason that the petitioners were posted at Moudhapara Police station and if the circumstances warrant they could have been transferred to other police station and thereafter enquiry could have been conducted. 6.Per contra learned counsel for the State would submit that the conversation has been placed on record along with CD. He would submit that the record would show that the petitioners were in contact with a notorious criminal against 5whom number of criminal cases stand registered against him. Therefore it would not have been possible to get the evidence against him. Consequently the enquiry was dispensed with. He would further submit that the nature of conversation will prove the seriousness of the offence as the petitioners who were posted at Moudhapara Police station as Head constable and Constable and since they were involved in conversation with a criminal in order to uphold the public safety the enquiry was dispensed with. 7.Heard the learned counsel for the parties and perused the records.8.A perusal of orders of dismissalshows that these orders were passed in the back drop of involvement of the petitioners with a hardcore criminal and the petitioners were in telephonic conversation with him to extend some favour and the said conversation was converted in a CD. The CD was relied on as a document and was a base for the entire actions. The orders purport that the respondents recorded the voices on the basis of the conversation held between Chhota Annu @ Anwar who is a master mind criminal and the petitioners. The dismissal orderspurport that the criminal was given shield by the petitioners so that he can unleash the criminal activities in the area. Annexure P 1 further purports that no evidence would be available to prove the conversation between the petitioners and accused and no one would give evidence against the petitioners for facilitating the activity of a criminal and for this reason alone the information is not transmitted to the higher officers. The order further records 6that in order to certify the criminal activities the petitioners have already recorded the alleged threatenings by the criminal Anwar in the Rosnamcha Sanha so as to save themselves from any untoward incident which may happen thereby they were hands in gloves with the criminal and thus the criminal was given protection. It further records that if the departmental enquiry would have been held no evidence would have been available which would result in escalation of the criminal activity. Consequently the enquiry was dispensed with and eventually the dismissal orders were passed.9.Admittedly no Departmental Enquirywas conducted before passing such dismissal orders and the D.E. was dispensed with merely on the basis of alleged telephonic conversation held between the criminal Chhota Annu @ Anwar and the petitioners which was recorded by the police. Therefore the nucleus of cause of action is based on the telephone records. The source of CD is not disclosed. The alleged telephonic conversation converted into CD which records the conversation was not supplied to the petitioners. The orders also do not disclose the fact how the voice of Tomanlal Sahu and Chandrabhan Singh were identified. It also neither discloses whether proper assistance of any officer was taken to identify the voice of the petitioners who were working as Head Constable and Constable nor the voice of criminal Chhota Annu @ Anwar was identified. No statement of any officer from department exists to say that he recognizes their voices. The compact disk was not sent for examination to any expert or to any Forensic Science 7Laboratory. The telephones or the mobiles in which the voice of conversation was recorded were not produced in original. 10.Section 65 B of the Evidence Act lays down certain procedure to be followed about the admissibility of the electronic record. In the instant case it appears that the procedure for admissibility of such Compact Diskas envisaged in section 65 B of the Evidence Act has not been followed. No certificate of telephonic conversation to satisfy the ingredient of Section 65 B is also on record. Therefore under the circumstances when a question comes to fore that whether any valid procedure or statutory mandate was followed to dispense with the departmental enquiry which proceeded on the premises of a telephonic recorded statement the obvious answer would be in negative. 11.Further more the action of respondents to dispense with the departmental enquiry before passing the dismissal orders on the basis of telephone tape conversation itself would be illegal. The question posed here is whether the telephonic conversation between the two individuals can be recorded to form a basis of dismissal The answer would be found in the dictum laid down in PUCL Vs. Union of India AIR 1997 SC 568wherein at para 35 the Supreme Court has issued certain directions guidelines for telephone tapping as otherwise it has held that it would offend Articles 19(1)(a) & 21 of the Constitution of India. Paras 19 20 & 35 of the said Judgment are relevant and quoted below : “19. The right to privacy by itself has not been identified under the Constitution. As a concept it may be too broad and moralistic to define it judicially. Whether 8right to privacy can be claimed or has been infringed in a given case would depend upon the facts of the said case. But the right to hold a telephone conversation in the privacy of one s home or office without interference can certainly be claimed as “right to privacy”. Conversations on the telephone are often of an intimate and confidential character. Telephone conversation is a part of modern man s life. It is considered so important that more and more people are carrying mobile telephone instruments in their pockets. Telephone conversation is an important facet of man s private life. Right to privacy would certainly include telephone conversation in the privacy of one home or office. Telephone tapping would thus infract Article 21 of the constitution of India unless it is permitted under the procedure established by law”.“20. Right to freedom of speech and expression is guaranteed under Article 19(1)(a) of the Constitution. This freedom means the right to express one s convictions and opinions freely by words of mouth writing printing picture or in any other manner. When a person is talking on telephone he is exercising his right to freedom of speech and expression. Telephone tapping unless it comes within the grounds of restrictions under Article 19(2) would infarct Article 19(1)(a) of the Constitution”. “35. We therefore order and direct as under :1. An order for telephone tapping in terms of Section 5(2) of the Telegraph Act shall not be issued except by the Home Secretary of Indiaand Home Secretaries of the State Government. In an urgent case the power may be delegated to an officer of the Home Department of the Government of India and the State Government not below the rank of Joint Secretary. Copy of the order shall be sent to the Review Committee concerned within one week of the passing of the order.2. The order shall require the person to whom it is addressed to intercept in the course of their transmission by meansa public telecommunication system such communications as are described in the order. The order may also require the person to whom it is addressed to 9disclose the intercepted material to such person and in such manner as are described in the order.3. The matters to be taken into account in considering whether an order is necessary under Section 5(2) of the Act shall include whether the information which is considered necessary to acquire could reasonably be acquired by other means. 4.The interception required under Section 5(2) of the Act shall be the interception of such communications as are sent to or from one or more addresses specified in the order being an address or addresses likely to be used for the transmission of communications to or from from one particular person specified or described in the order or one particular set of premises specified or described in the order. 5.The order under Section 5(2) of the Act shall unless renewed cease to have effect at the end of the period of two months from the date of issue. The authority which issued the order may at any time before the end of two months period renew the order if it considers that it is necessary to continue the order in terms of Section 5(2) of the Act. The total period for the operation of the order shall not exceed six months.6.The authority which issued the order shall maintain the following records :(a)the intercepted communications the extent to which the material is copied of the Act.8.Each copy made of any of the intercepted material shall be destroyed as soon as its retention is no longer necessary in terms of Section 5(2) of the Act.9.There shall be a review Committee consisting of Cabinet Secretary the Law Secretary and the Secretary Telecommunication at the level of the Central Government. The Review Committee at the State Level shall consist of the Chief Secretary Law Secretary and 10another member other than the Home Secretary appointed by the State Government.(a)The Committee shall on its own within two months of the passing of the order by the authority concerned investigate whether there is or has been a relevant order under Section 5(2) of the Act. Where there is or has been an order whether there has been any contravention of the provisions of Section 5(2) of the Act.(b)If on an investigation the Committee concludes that there has been a contravention of the provisions of Section 5(2) of the Act it shall set aside the order under scrutiny of the Committee. It shall further direct the destruction of the copies of the intercepted material.of the Act it shall record the finding to that effect”.12.Therefore examining the orders of dismissal in the light of the observations made by the Supreme Courtand the procedure prescribed in section 65 B of the Evidence Act the very substratum to dispense with the enquiry cannot be held to be justified. The order of dismissal is primarily based on telephonic recorded conversation which is against the dictum laid down by the Supreme Court therefore would tantamount to offend Article 21 of the Constitution of India. Hence the justification to dispense with enquiry on the basis of telephonic recorded conversation cannot be insulated by the judicial verdict. Consequently the orders of dismissal dated 28th July 2011are set aside.13.Considering the nature of allegations the respondents would be at liberty to hold the departmental enquiry against the petitioners by giving them proper opportunity of hearing and following the procedure of rules of natural justice and thereafter may pass appropriate orders. 1114.With such observation these petitions stand disposed of. Sd GOUTAM BHADURIJUDGE Rao

Rape victim’s consistent testimony sufficient for conviction of accused: Delhi High Court

The question as to whether a person accused of rape charges can be convicted on the basis of consistent testimony of the victim was examined in Delhi High Court in a bench consisting of Justice Mukta Gupta in the matters of RN v. State which was decided on 4.1.2022. The facts of this case are that when the victim was 5 years old the appellant raped the child in her own house and upon inquiry, the child informed her mother that the appellant called her to his room while she was playing and later violated her by inserting his finger and male organ into her vagina.The mother also found her “underwear smeared with blood”. Later, she made her change and go to bed.Thereafter discussed the incident with the father. The trial court convicted the appellant under section 6 of the POSCO Act and sentenced to 10 years rigorous imprisonment.This sentence was challenged by the appellant before this court. The counsel on behalf of the Appellant contended that when a child of such a tender age provides such flawless testimonies, it is obvious that she has been tutored to frame the appellant.It cannot be denied that the medical evidence suggest commission of sexual assault on the child yet,it cannot be legitimately connected to the appellant.He also contended that no materials were recovered, neither any witness was present during seizure of materials from the crime scene or during his arrest hence, the evidences elicited to falsely implicate the appellant. The counsel on behalf of the Respondent contended that she was already cross examined and maintained a consistent testimony in the trial court earlier. It was also established beyond reasonable doubt that there was sexual assault committed upon the child. The Delhi High Court upheld the conviction stating that the child was of a impressionable age and properly narrated the incident to her mother soon after , reason why there are no inconsistencies in her statement.Such a testimony is sufficient to prove the offence of the appellant beyond reasonable doubt.The court found no error in the judgement by the trial court in the conviction and dismissed the appeal.

IN THE HIGH COURT OF DELHI AT NEW DELHI Decided on:4th January 2022 CRL.A. 705 2018 Represented by: Mr. Nitish Chaudhary Advocate Appellant through video conferencing. Respondent Represented by: Mr. Tarang Srivastava APP for the State through video conferencing. HON BLE MS. JUSTICE MUKTA GUPTA MUKTA GUPTA J.CRL.A. 705 2018 The hearing has been conducted through Video Conferencing. By this appeal the appellant challenges the judgment dated 12th January 2018 convicting the appellant for offence punishable under Section 6 of the Protection of Children from Sexual Offences Act 2012and the order on sentence dated 17th January 2018 directing the appellant to undergo rigorous imprisonment for a period of 10 years and to pay fine of ₹5 000 in default whereof to undergo simple imprisonment for one month. Learned counsel for the appellant contends that at the time of alleged incident the victim was a 5 years old child of impressionable age and thus the appellant has been implicated by tutoring her by her parents who were inimical to the appellant. Even though as per the case of the prosecution the MLC of the prosecutrix shows injury and tear on her vaginal area and CRL.A. 705 2018 Signature Not Verified Digitally Signed By:JUSTICE bloodstains on her undergarment however there is nothing to connect the appellant with the alleged offence. No recoveries have been made from the appellant and even in the FSL report no semen has been detected which could have connected the appellant to the offence alleged. Further it is the case of the prosecutrix that the appellant took her to his room and to corroborate the version no bed sheet etc. were recovered to show that the appellant was the one who was involved in the alleged offence. Further no public witness was associated at the time of seizure and arrest and there is no other eye witness who supports the claim of the prosecutrix that it was the appellant who took her inside the room. FIR No.930 2014 was registered for offence punishable under Sections 376(f)(i)(j) IPC and Section 6 of the POCSO Act at Police Station Aman Vihar wherein after a DD entry No.4 B dated 29th August 2014 was received at 12:30 a.m. alleging rape on a 5 years old girl. When the Investigating Officer visited the hospital he met the victim and her father. Statement of the mother of the victim was recorded who was at the residence who stated that she was residing at the said place for the last 6 months with her husband and two daughters aged 6 years and 3 years. On 28th August 2014 at about 10:00 a.m. her elder daughter was playing outside and at around 12:00 noon she came back weeping. On inquiry the victim told her mother that the appellant took her to his room removed her panty inserted his finger and male organ in her vagina. The child was crying due to pain. The mother of the victim saw her underwear which was smeared with blood. She changed the clothes of the child and made her sleep. In the evening when her husband came she informed him about the entire incident. Her husband searched the appellant who was the cousin brother of her CRL.A. 705 2018 Signature Not Verified Digitally Signed By:JUSTICE husband however he did not find him thus PCR call was made and the child was taken to the hospital. Statement of the minor child was recorded under Section 164 Cr.P.C. wherein she reiterated what was stated by her to her mother. As per the MLC the victim was found to be having perineal tear and repair was done her bloodstained underwear was seized and sealed. The appellant has been named in the MLC Ex.PW 4 A which is the document prepared first in time. The MLC noted 1x1 cm. actively bleeding tear at fourchette hymen torn which was clearly indicative of penetrative sexual assault on the victim. Undoubtedly as per the FSL and DNA fingerprinting report neither any semen was detected nor were the alleles from the appellant accounted in the blood smears or the vaginal smears of the prosecutrix. To constitute an offence punishable under Section 376 IPC and Section 6 of the POCSO Act penetration is sufficient and it is not necessary that semen needs to be essentially present. The prosecutrix though a minor child of impressionable age soon after the incident told her mother when she was in pain and the fact that she was sexually assaulted is duly corroborated by the medical evidence on record and has been cross examined at length before the Trial Court. Her statement to the mother in the MLC statement recorded under Section 164 Cr.P.C. and before the Court are consistent which are sufficient to prove the offence alleged against the appellant beyond reasonable doubt. Contention of the learned counsel for the appellant that no public witness was associated at the time of recovery deserves to be rejected for the reason no recovery was made at the instance of the appellant and the clothes of the victim were handed over by her parents to the Investigating Agency CRL.A. 705 2018 Signature Not Verified Digitally Signed By:JUSTICE which were duly seized and sealed and FSL report received. The explanation of the appellant in his statement recorded under Section 313 Cr.P.C. is that he has been falsely implicated however neither any defence evidence has been led nor anything elicited to show as to why the appellant has been falsely implicated. In view of the statement of the minor victim as also her MLC this Court finds that the prosecution has proved beyond reasonable doubt that the appellant committed the offence punishable under Section 6 of the POCSO Act. The sentence of rigorous imprisonment for 10 years awarded to the appellant is the minimum sentence prescribed for the offence punishable under Section 6 of the POCSO Act. Thus this Court finds no error in the impugned judgment of conviction and order on sentence. Appeal is 2. CRL.M.(BAIL) 1530 2021Disposed of as infructuous. Judgment be uploaded on the website of this Court as also communicated to the Superintendent Tihar jail for updation of record and intimation to the appellant. MUKTA GUPTA) JUDGE JANUARY 04 2022 CRL.A. 705 2018 Signature Not Verified Digitally Signed By:JUSTICE

Statements made under Section 161 CrPC inadmissible as evidence to refuse bail: High Court of Delhi

When a police officer reduces into writing any statement made to him by a witness, in the course of investigation under Section 161 of CrPc, such a statement cannot be used to refuse grant of bail to an accused.  This was decided in the case of Junaid and Ors. v. State of Delhi BAIL.APPLN.3163/2020 in the High Court of Delhi by Hon’ble Justice Suresh Kumar Kait. The petitions have been filed of the same incident and FIR and the evidence on record are the same against all the accused/petitioners for grant of bail. In the North East area of Delhi at different places, incidents of stone pelting and rioting were reported. On 24.02.2020, at around 3:00 PM, Hindu mob which was pro CAA also entered the arena and they too started pelting stones etc. at the Muslim community, forcing them to retreat. Muslim rioters were concentrated towards the Muslim dominated Chandbagh area, while the Hindu rioters were towards the Yamuna Vihar area. Some of the rioters on both the sides also went to the roof tops of the buildings of their area over-looking Mohan Nursing Home and adjoining buildings, while Muslim mob took position at the roof top of building. The counsel for the petitioner submitted that the evidence against the petitioner and statements recorded u/s 161 Cr.P.C were false. It is submitted that the petitioner is innocent and has been falsely implicated in the present case. He was called through notice under Section 160 Cr.P.C. that he was required for some normal inquiry and would be sent back after taking the statement. He was not arrested from his house and was taken to police station as cleared by police in charge-sheet. The court observed that the notice of Section 160 Cr.P.C. is also provided in charge-sheet which shows the authenticity of the above submissions. Further the court also observed that to prove the involvement of the petitioner, the prosecution has relied upon a video of an NDTV prime time show, about which, the prosecution themselves have admitted that it fails to establish the identity of any of the accused. It could be seen that the trial has not started yet and it will take a long time and it is only on the basis of the statement of the person which is not corroborated by any independent evidence that the prosecution wants to keep the petitioner into custody The court drew attention to the fact that The “statement under Section 161 Cr.PC is Inadmissible in Evidence and cannot be Relied Upon For Conviction”, as reiterated by Hon’ble Supreme Court in the case Parvat Singh vs. State of Madhya Pradesh in Criminal Appeal No.374/2020.

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: February 10 2021 Pronounced on: February 19 2021 Through: Mr. Salim Malik Adv. ..... Petitioner .Respondent Through: Mr. S.V. Raju ASG with Mr. Amit Mahajan SPP Mr. Amit Prasad SPP Mr. Rajat Nair SPP Mr. Shantanu Sharma Mr. Dhruv Pande Ms. Sairica Raju Mr. A. Venkatesh Mr. Guntur Pramod Kumar Mr. Shaurya R. Rai Ms. Zeal Shah Ms. Aarushi Singh Ms. Manjit Kaur and Mr. Anshuman Singh Advs. CHAND MOHD. ..... Petitioner Through: Mr. Salim Malik Adv. .Respondent Through: Mr. S.V. Raju ASG with Mr. Amit Mahajan SPP Mr. Amit Prasad SPP Mr. Rajat Nair SPP Mr. Shantanu Sharma Mr. Dhruv Pande Ms. Sairica Raju Mr. A. Venkatesh Mr. Guntur Pramod Kumar Mr. Shaurya BAIL APPLN.3163 2020 3862 2020 & 52 2021 R. Rai Ms. Zeal Shah Ms. Aarushi Singh Ms. Manjit Kaur and Mr. Anshuman Singh Advs. Through: Mr. Salim Malik Adv. ..... Petitioner .Respondent Through: Mr. S.V. Raju ASG with Mr. Amit Mahajan SPP Mr. Amit Prasad SPP Mr. Rajat Nair SPP Mr. Shantanu Sharma Mr. Dhruv Pande Ms. Sairica Raju Mr. A. Venkatesh Mr. Guntur Pramod Kumar Mr. Shaurya R. Rai Ms. Zeal Shah Ms. Aarushi Singh Ms. Manjit Kaur and Mr. Anshuman Singh Advs. HON BLE MR. JUSTICE SURESH KUMAR KAIT JUDGMENT The hearing was conducted through video conferencing. The above captioned petitions have been filed by the petitioners under Section 439 Cr.P.C. read with Section 482 Cr.P.C. for grant of bail in case FIR No.84 2020 the offences punishable under Sections BAIL APPLN.3163 2020 3862 2020 & 52 2021 147 148 149 153 A 302 395 397 452 454 505 506 120 B IPC registered at PS Dayal Pur North East District Delhi. The above captioned petitions have been filed of the same incident and FIR and the evidence on record are the same against all the accused petitioners therefore these petitions being decided by this common order. However since facts are also same of all the petitioners therefore facts narrated in Bail Appln.3163 2020 filed by accused Junaid are being discussed while passing order in these petitions. Case of the prosecution is that in the North East area of Delhi at different places incidents of stone pelting and rioting were reported. On 24.02.2020 at around 3:00 PM Hindu mob which was pro CAA also entered the arena and they too started pelting stones etc. at the Muslim community forcing them to retreat. Muslim rioters were concentrated towards the Muslim dominated Chandbagh area while the Hindu rioters were towards the Yamuna Vihar area. Some of the rioters on both the sides also went to the roof tops of the buildings of their area over looking Mohan Nursing Home and adjoining buildings while Muslim mob took position at the roof top of buildings like Saptarishi Ispat and Alloy Private Limited etc. From the roof top of the building there were firing and stone pelting BAIL APPLN.3163 2020 3862 2020 & 52 2021 towards each other from both sides of the road. In short time it became a full fledged Hindu Muslim riot. In the process one Shahid received a gunshot injury which led to his unfortunate death. Learned counsel for the petitioner submitted that the evidence against the petitioner as per the report u s 173 Cr.P.C. are that in their statements recorded u s 161 Cr.P.C. eye witnesses Mukesh Kr. who were present on the date and time of the incident as well as Ct. Amit and Ct. Azad who were present on duty near SOC deposed that petitioner herein was part of the unlawful mob which not only entered forcefully inside the Saptarishi building after breaking the iron gate but also illegally overtook the Saptarishi building after getting it evacuated forcefully from the actual inhabitants i.e the labourers and their family members. He was actively pelting stones bottles on the police party and other community persons. The owner of the building vide his statement deposed that the protestors looted the cash from the cash counter and broke the CCTV camera DVR. The petitioner was using one mobile number and the CAF and CDR of the same were obtained from the concerned service provider. On scrutiny it was revealed that said number was obtained by the petitioner on his name. On scrutiny of the CDR it was also revealed that on the date and time of BAIL APPLN.3163 2020 3862 2020 & 52 2021 incident mobile phone of petitioner was active at the scene of crime. Accordingly he was arrested in the present case after having sufficient evidence on file dated 01.04.2020. Copy of FIR alongwith its English translation is annexed as Annexure A. It is submitted that the petitioner is innocent and has been falsely implicated in the present case. There is no evidence whatsoever against petitioner. He was called on 01.04.2020 through notice under Section 160 Cr.P.C. that he was required for some normal inquiry and would be sent back after taking the statement. He was not arrested from his house and was taken to police station as cleared by police in charge sheet. The notice of Section 160 Cr.P.C. is also provided in charge sheet which shows the authenticity of the above submissions. After putting petitioner into custody an afterthought story was made by police to falsely implicate him in this case. There is no relevant statement provided from owner of building against petitioner. No call at 100 number was made by the owner even after getting information of problem at his godown or Saptarishi building as it was a serious situation on 24.02.2020. Moreover there is no proof in charge sheet even in the CDR as shown by police which may prove petitioner’s involvement in the case. There is no CDR chart presented by police in BAIL APPLN.3163 2020 3862 2020 & 52 2021 charge sheet which proves that petitioner was present at the scene of crime as provided on page No.275 of the charge sheet. The particular presence on the Saptarishi building cannot be established only on the ground that the mobile phone was found within the radius of the mobile tower. A mobile tower covers an area of up to 500 meters. So it cannot be said that every person who is in the range of 500 meters was present on the scene of crime at Saptarishi building. Further submitted that to prove the involvement of the petitioner the prosecution has relied upon a video of an NDTV prime time show about which the prosecution themselves have admitted that it fails to establish the identity of any of the accused. Because when they try to enlarge the picture the photos break and the stills could not be obtained as provided on page No.38 of the charge sheet. But when the said video was run during the course of argument it was seen clearly that all the faces were visible and can be identified easily. None of the persons present was identified as Junaid. The reason is simple because he was not present at the scene of crime. On perusal of that if we see the statements of the three prosecution witnesses Mukesh Narayan and Arvind Kumar u s 161 Cr.P.C. it’s all copied and pasted and even in the said statements there is no fact which shows the BAIL APPLN.3163 2020 3862 2020 & 52 2021 presence of petitioner at the Saptarishi building or identifies him categorically. Out of these three witnesses Mukesh deposed in his statement on 08.03.2020 that on that day he did not state a single word against petitioner herein. Even the description of petitioner was not mentioned by Mukesh. Afterwards on 01.04.2020 when the petitioner was called by IO at Old Kotwali building Darya Ganj he was arrested and put into custody to fulfil the ingredient of Section 149 IPC. No witness was present at that particular time not even Mukesh. The “statement under Section 161 Cr.PC is Inadmissible in Evidence and cannot be Relied Upon For Conviction” as reiterated by Hon’ble Supreme Court in the case Parvat Singh vs. State of Madhya Pradesh in Criminal Appeal No.374 2020. Although the defence is aware of this fact that they are not at the stage of trial and are not seeking discharge acquittal rather petitioner is only seeking bail. The trial has not started yet and it will take a long time and it is only on the basis of the statement of Mukesh which is not corroborated by any independent evidence that the prosecution wants to keep the petitioner into custody. If the statement of Mukesh is removed from the charge sheet there is no evidence against petitioner and no offence is being made out. Thus only on the basis of one statement that too a supplementary one which is an afterthought of BAIL APPLN.3163 2020 3862 2020 & 52 2021 the police to rope in an easy target the most important and fundamental right of the petitioner is being curtailed. Moreover statements recorded under Section 161 Cr.P.C. statements of Ct. Amit and Ct. Azad also do not establish the presence of the petitioner. Thus there is no evidence with police against the petitioner except his confessional statement in the police custody which is inadmissible in evidence. Neither the presence of the petitioner at the scene of crime has been established at all nor identification through dossier and TIP were done. Thus the prosecution has no cogent evidence against the petitioner to bring his guilt home. Thus the petitioner deserves bail in the present case. On the other hand Mr. S.V. Raju learned ASG has raised preliminary objection by submitting that the present case is squarely covered by the judgment 06.07.2020 rendered by this Court in Bail Appln.922 2020 titled as Raiees Khan vs State of NCT Delhi wherein this Court was pleased to dismiss the bail application of the co accused in the present FIR whose case was also similarly situated as the petitioner’s case. The relevant portion of the said judgment is quoted hereinbelow for ready reference: “....7. It is further argued the statements of public witnesses Mukesh and Arvind Kumar though recorded on 08.03.2020 never stated about his presence at the roof top of said Building or that anybody allegedly having BAIL APPLN.3163 2020 3862 2020 & 52 2021 incriminating evidence against received gunshot injury at rooftop but their statements were again recorded on 12.03.2020 wherein they alleged they had seen applicant who was than sitting in the police station and had duly identified him as an active member of the group which went to the roof top of Saptrishi Building who fired and pelted stones from the roof at police and public by breaking the boundary wall of roof by use of kicks and sticks etc. 8. The learned counsel for applicant further submits that in the status report the role assigned to the applicant is only of hurling stones and raising slogans and the order of the learned Chief Metropolitan Magistrate shows that there was no applicant except his disclosure statement and hence the supplementary statements of two public witnesses recorded on 12.03.2020 only show they have been tutored to allege against this applicant to falsely implicate him in this case. 9. The learned SPP for the State on the other hand submitted the incident was of rooftop of Saptrishi Building and not of Chand Bagh Peer Baba Mazar Bhajanpura Delhi as is evident from the footage of NDTV as also the photographs showing the dead body of Shaheed was brought down with the help of a ladder from the roof of Saptrishi Building. It is argued witnesses Mukesh and Arvind were residing in Saptrishi Building itself which was taken over by the rioters including this applicant and his associates and they went to the roof they kept on throwing bricks and other material on the police officials and general public and some of its members even fired. 10. It is also submitted when the applicant was at the police station he was advised to keep his face muffled but he deliberately unmuffled himself when the witnesses arrived to frustrate the TIP and it was only for this reason the TIP was not conducted. It is argued even otherwise the prime objective of the TIP is to find out if the investigation is moving in right direction. It is stated BAIL APPLN.3163 2020 3862 2020 & 52 2021 besides these two public witnesses ASI Rajender Singh and HC Davender have also given statements under Section 161 Cr.P.C. against the applicant and have identified him. 11. No doubt there was a delay in registration of the FIR but it was only because of the circumstances prevalent at that time. On the day of incident I am told about 18689 PCR calls were received on a single day 3450 calls were from the Dayalpur area itself and then it took time to register the FIRs the last FIR being registered on 28.03.2020. Pandemic Covid 19 further delayed the investigation. 12. Saptrishi Building is opposite to the place where HC Rattanlal of the police team was shot at. Immediately thereafter this incident happened. Shahid was allegedly one of the rioters and probably during firing upon the police party and general public a gunshot misfired and probably hit Shahid from short range as the injury is a short range injury as verified. Now since delay and non conducting of TIP being sufficiently explained coupled the applicant stood identity of established by at least four witnesses in this matter it would not be appropriate for this Court to appreciate the evidence. 13. All these pleas the accused relies upon can be taken while arguing on charge but considering the gravity of offence the statements implicating him I am not inclined to admit the applicant to bail at this stage.....” A copy of the judgment dated 06.07.2020 rendered by this Court in the aforesaid case is annexed hereto and marked as Annexure A. It is submitted that in the instant case also the accused petitioner has been named by same public witness Mukesh who named accused Raiees Khan. In the present case also the petitioner has been named by the same BAIL APPLN.3163 2020 3862 2020 & 52 2021 two police personnel of PS Dayal Pur who had also named Raiees Khan. Similar objection pertaining to identification of the accused as raised in the present petition was also raised in the said petition which came to be rejected by this Court in the aforesaid judgment. The issue of delay of registration of FIR the ground of false implication of the accused in the subject FIR the NDTV video and the grounds pertaining to TIP etc. in the submission of the prosecution were all raised in the aforesaid judgment and were rejected. In the present case also similar grounds have been raised. Further it is submitted that the veracity of the statement of public and police witnesses for the purpose of bail has already been examined by this Court in the above quoted judgment and only after closely examining the said statements this Court came to the finding that the present stage was not a fit stage for granting bail to the co accused. The said circumstances are mutatis mutandis applicable in the present case also. Furthermore the CDR analysis of the petitioner respondent also establishes his presence at the scene of offence. It is submitted that the petitioner had been using 4G mobile phone which gives the exact location to 20 mts. The said fact falsifies the petitioner’s ground that CDR location of the petitioner cannot be relied upon as its range is 500 mts. Further the scene of offence i.e. BAIL APPLN.3163 2020 3862 2020 & 52 2021 Saptarishi building is opposite to the place where HC Rattanlal of the police team was shot at. Immediately thereafter this incident happened. The said fact has also been examined by this Court in the aforesaid judgment. 10. Learned ASG further submitted that during investigation eye witnesses namely Mukesh Arvind and Narayan were tracedwho were present in the building at the time when unruly mob had forcibly entered inside the building after breaking open the iron gates. On 08.03.2020 the witnesses were joined in the investigation and their statements u s 161 Cr.P.C. were recorded. All eye witnesses deposed that they can identify those rioters who had not covered their faces while they forcibly entered inside the Saptarishi building after breaking open the iron gates and taking active part in stone pelting on police party from roof top. Besides this eyewitness Mukesh also identified the petitioner herein during investigation as an active member of the rioters. Besides this police personnel of Police Station Dayal Pur who remained present on duty continuously at demonstration site also deposed in their statement that they are familiar with faces of number of persons who attended the demonstration time to time and took active part in riots on the date of incident i.e. 24.02.2020. Ct. Amit and Ct. Azad members of crack team of ACP Gokal BAIL APPLN.3163 2020 3862 2020 & 52 2021 Puri also identified the petitioner as an active participant of unruly mob in riots. 11. Further submitted that during investigation after analysis of video footage obtained from NDTV it was established that deceased Shahid sustained the gunshot injury at the roof top of Saptarishi building. Petitioner was also present there as a member of unruly mob. The mob gathered on the rooftop of building is seen hurling stones at public as well as police party. However the petitioner s name was first disclosed by the other co accused Rais Khan arrested earlier in the present case in his disclosure statement. Thereafter on the information of local informer his whereabouts were identified and a notice was served on him to join the investigation. During investigation on the basis of identification and statement of eye witness Mukesh & two police personnel as well as on the basis of CDR Dump Data analysis the petitioner was arrested in the present case. 12. Learned ASG further submitted that statement of eye witness Mukesh and two police personnel present at the spot as well as CDR analysis of petitioner shows that the petitioner was present at the scene of crime. Therefore considering the conduct of the petitioner there is every possibility that if the petitioner released on bail he may abscond. BAIL APPLN.3163 2020 3862 2020 & 52 2021 Furthermore the character antecedents behaviour means position and standing of the petitioner also do not entitle him to seek bail. Also there is possibility that he may indulge in such activities if enlarged on bail. It is also pertinent to mention here that the witnesses are working and residing in the vicinity and they belong to weaker section of the society being labourer hence there is apprehension that the petitioner may influence the witnesses. Further all the aforesaid factshave already been examined by this Court vide its orders dated 06.07.2020 & 16.10.2020 passed in the bail matter of Raiees Khan and have been held in favour of the prosecution and against the petitioner. Thus the present petition deserves to 13. Heard learned counsel for the parties and carefully perused the be dismissed. material on record. 14. On perusal of the post mortem report which is provided on page Nos.36 & 37 and also on page Nos.65 & 66 which examines the gunshot wound to Shahid that led to his unfortunate death. The analysis says that the gunshot injuries were received around 04:00 PM. On the above mentioned submissions it has been stated that the prosecution has failed to establish presence of petitioner at the scene of crime or in that area. Further BAIL APPLN.3163 2020 3862 2020 & 52 2021 there is no blackening singeing or tattooing seen around the wound which established the fact that neither it was a contact wound nor a short distance wound. Rather it was a wound caused by the long distance firing which indicates towards the fact that it is a distant shot fired from any building which is in front of Saptarishi building and is at a distance or it is fired from Mohan Nursing Home because in the video relied by the prosecution it has been categorically shown that how some anti social elements were firing gunshots by using a rifle from the roof of the Mohan Nursing Home building towards Saptarishi building and at other places. And this fact has been further admitted by the prosecution when they use the word “possibility” provided on page No.37 of the charge sheet. Because they are not sure that from where this gunshot injury came then how can they be sure that it is a close range shot when they are already mentioning that this is a “possibility” but not a surety or certainty. 15. Moreover the antemortem injury does not mention the shape of the wound and the colour of the initial part of the track which are essential to decide the range of the fire. The shape of the wound depends on the range and the weapon used. In this case neither the shape has been mentioned nor the weapon has been discovered. So the theory of close range shot is just a BAIL APPLN.3163 2020 3862 2020 & 52 2021 conjecture of the investigating agency and is not based on scientific fact. Simply because copper like pieces were found near the exit wound of the body as per the post mortem report it would not signify a close range shot. But it was only on this basis the investigating agency concluded that the “firing was possibly from close proximity” which is not scientifically possible. It is pertinent to mention here that in the post mortem report the direction of the wound in which it has entered the body has been given to be from the left side which is going downwards and exiting from the right side. Which means that the injury was from a height and at a distant range thus establishes the possibility that the bullet came from Mohan Nursing home or any building which is on the left side of the Saptarishi building and is at height which is on the front and diagonally left to the Saptarishi building and is on more height than that of Saptarishi building. In case if it was fired from a close range then the bullet would have gone straight rather than entering the body from left side and exiting from right side and that too downwards. Further in case of close range shot gunshot residues like led Carbon Mono Oxide Carbon Dioxide are bound to be present t the entry of the wound but no such residue was mentioned to be available in the post mortem report. BAIL APPLN.3163 2020 3862 2020 & 52 2021 17. As submitted by learned counsel for petitioner that in the same video relied upon by police at exact after running of video for 10 minutes it is seen that Ravish Kumar NDTV primetime anchor saying that a person is firing rifle from Mohan Nursing Home Hospital and is wearing helmet there is another person who is covering the weapon with handkerchief and later on they can be seen in the videos as well. But the investigating agency seems to have concentrated only on one side of the building although it is an admitted case of prosecution that rioters from both the sides were pelting stones at each other and were firing. Further in this video the firing is seen to be done only from Mohan Nursing Home and not from Saptarishi In view of the above submissions it can be seen that there is no evidence whatsoever either direct or circumstantial or forensic against the petitioners. Neither there was any motive whatsoever either for them or for any other person allegedly present on the roof of Saptarishi building to commit the offence nor has the prosecution alleged any motive in the entire case. Thus it is hard to believe that a communal riot can be used by the petitioners to cause death of the person of their own community. Moreover when it is an admitted case of the prosecution that the petitioners actually let BAIL APPLN.3163 2020 3862 2020 & 52 2021 go off the witnesses of the different community and asked them to leave the scene of crime to save their lives namely Mukesh Narayan Arvind and their families before climbing on the roof top of Saptarishi building. If they were really involved in this communal riot and wanted to cause harm to the members of the other community Hindu community they would not have tried to save the lives of the above named members of the other community. In addition the investigating agency itself has stated in their reply to the bail applications of the petitioners that the main assailant who has caused gunshot injury to deceased Shahid is yet to be arrested. Admittedly no recovery either of firearm or of any other weapon was obtained from the petitioners. 20. This Court is conscious about the bail denied by Co ordinate Bench of this Court to co accused Raiees Khan vide order dated 06.07.2020 in Bail Appln. 922 2020. On perusal of the said order and considering the rival contentions of the parties I have no hesitation to say that the facts brought in the present petitions were not brought to the notice of the Court while deciding the bail application of co accused named above. 21. Therefore considering the above facts and the fact that charges are yet to be framed and thereafter trial shall take substantial time I am of the BAIL APPLN.3163 2020 3862 2020 & 52 2021 view that the petitioners deserve bail. 22. Accordingly they shall be released on bail on their furnishing a personal bond in the sum of Rs.25 000 each with one surety each in the like amount to the satisfaction of the Trial Court. 23. The petitions are accordingly allowed and disposed of. I hereby make it clear that observations made by this Court are only to pass this order thus the Trial court shall not get influenced from the same. 25. Petitioners shall not influence the witnesses and temper with the evidence. 26. Copy of this order be transmitted to the Jail Superintendent concerned and Trial Court for necessary compliance. 27. The judgment be uploaded on the website of this Court forthwith. FEBRUARY 19 2021 rk SURESH KUMAR KAIT) JUDGE BAIL APPLN.3163 2020 3862 2020 & 52 2021

The direct and indirect impact of the crime on rape victims’ body and mind cannot be ruled out – Madras High Court

The offence has everything to do with the corrupt mind of the accused not seeing the prosecutrix as another living being, This crime and the punishment, has only the time tested message to every individual of the society. This was stated by the single bench heading Hon’ble Justice D. Bharatha Chakravarthy in the case Gopi @ Saravanan v. The State Crl.R.C.No.708 of 2014 The crux of the case is, the prosecutrix went to the Kalasapakkam Police Station and stated that when she went to graze her milch cow near her family’s land, the petitioner/accused approached her, made sweet talk, and then abruptly pulled her by her hand and dragged her to Govind Vathiyar’s teak farm, where he laid her down and committed rape by preventing her from making any noise and forcefully indulged in the act, and at that time, her brother came Her brother, in fact, picked up a stone and tossed it at him, but the same stone struck her in the left ear. Because the accused committed the crime of rape, the complaint was filed. A case was filed under Section 376 of the Indian Penal Code by a Sub-Inspector of Police. Following that, the Trial Court proceeded to construct accusations under Section 376(1) of the I.P.C., which the petitioner/accused rejected and stood trial for. The accused further rejected the charges when questioned about the evidence on file and the incriminating circumstances under Section 313 of the Code of Criminal Procedure. The Trial Court found that the charge against the accused was proven beyond a reasonable doubt and imposed a mandatory minimum sentence of seven years rigorous imprisonment and a fine of Rs.500/-, while noting that the accused’s time spent awaiting trial can be deducted under Section 428 of the Code of Criminal Procedure. In this case learned Advocate (Criminal Side) appearing on behalf of the prosecution would submit that prosecution in this case has proved the offence beyond doubt. And further stated that In this case a careful perusal of the entire complaint and thereafter the evidence of victim, the very fact that the victim did not physically and violently resist the accused will not make the act as consensual. He also relied on the case of Rao Harnarain Singh and others Vs. State AIR 1958 P&H 123 and pointed out “Every consent involves a submission but the converse does not follow and a mere act of submission does not involve consent.” Thus, ‘submission’ would not amount to ‘consent’. So here in the case Hon’ble Justice D. Bharatha Chakravarthy relied on the case of Shimbhu and Ors. Vs. State of Haryana MANU/SC/0871/2013 and stated 20 years down the lane after the commission of the crime, the case presents the grim aftermath of the crime. The prosecutrix, even though survived the offense, and lived for many years thereafter, did pass away at an young age, pending disposal of this revision. The direct and indirect impact of the crime on her body and mind cannot be ruled out. The accused being sent to jail at an early age, has since turned into an alcoholic and is very sick now at the age of 48. But the long arm of the law will reach him and land him into jail. In between he is also married and the poor wife and children have to face the social stigma, for no fault of theirs. If only, the accused did not commit the offense, their life in the village would have been peaceful. The offence has everything to do with the corrupt mind of the accused not seeing the prosecutrix as another living being, This crime and the punishment, has only the time tested message to every individual of the society. In the result, this Criminal Revision case is dismissed. The conviction and sentence imposed by the Trial Court and the Appellate Court stands confirmed.

Crl.R.C.No.7014IN THE HIGH COURT OF JUDICATURE AT MADRASOrder Reserved on : 14.12.2021Order Pronounced on : 23.12.2021CORAM : THE HON BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHYCrl.R.C.No.7014Gopi @ Saravanan .. PetitionerVersus1.State rep. by The Inspector of Police Kalasapakkam Police Station Tiruvannamalai District. 2.Prabha .. Respondents(R2 suo motu impleaded as per the order in Crl.R.C.No.7014 dated 24.11.2021)Prayer : Criminal Revision Case is filed under Section 397 r w 401 of Cr.P.C. to set aside the judgment in C.A.No.605 dated 03.02.2014 on the file of the learned Sessions Judge Tiruvannamalai confirming the judgment as made in S.C.No.1602 dated 17.12.2005 on the file of the learned Chief Judicial Magistrate Tiruvannamalai and call for the records and acquit the petitioner from all charges.For Petitioners: Mr.S.VediappanFor R1: Mr.L.Baskaran Government Advocate1 18 https: www.mhc.tn.gov.in judis Crl.R.C.No.7014 of I.P.C and upon questioning the petitioner accused denied the charge and stood trial.4 18 https: www.mhc.tn.gov.in judis Crl.R.C.No.70144. The prosecution examined the prosecutrix victim as P.W.1 who deposed about the incident The brother of the prosecutrix who accidentally came to the spot and virtually rescued P.W.1 and tried to attack the accused was examined as P.W.2 who spoke to that effect one Venkatesan the Village Assistant who was the witness to the observation mahazar as P.W.3 one Dhanapal who was the witness to the seizure of MOs.1 and 2 upon the confession of the accused as P.W.4 one Settu who was also the witness in the seizure mahazar pursuant to the confession of the accused turned hostile and was cross examined by the prosecution as P.W.5 one Dr.Karpagam who examined P.W.1 victim and deposed that she issued Ex.P6 medical certificate and spoke about examining the victim that there was a tear injury of 1 c.m. in the private part of P.W.1 and that her Vagina admitted two fingers however with difficulty and that P.W.1 had felt pain upon touching her breast as P.W.6 one Dr.Sakunthala Dentist who examined P.W.1 and certified that her age would be between 18 to 19 years as P.W.7 one Chinnaraj Head Constable who took P.W.1 to Polur hospital for determining her age and thereafter to Vellore hospital as P.W.8 one Dr.M.J.Seenivasan as P.W.9 One Chelladurai the Radiologist who examined P.W.1 and determined her age as 17 to 18 years and issued 5 18 https: www.mhc.tn.gov.in judis Crl.R.C.No.7014Ex.P8 as P.W.10 who carried M.O Tappals to the Forensic laboratory one Dr.S.Prabhakaran as P.W.11 who examined the accused and found him to be potent and fit to have physical intercourse one Nirmala Rajkumar the Forensic expert as P.W.12 who issued Ex.P13 report and Ex.P14 report and found that there were traces of sperm in M.O.2 one Ravindran who was the Sub Inspector of Police Kalapakkam at the relevant time and who registered the case in Crime No.02 by recording the statement of P.W.1 victim as P.W.13 one Raja Inspector of Police as P.W.14 who is the investigating officer.5. The prosecution marked the statement given by P.W.1 as Ex.P1 form 95 as Ex.P12 observation mahazar as Ex.P3 P.W.4 s signature in seizure mahazar as Ex.P4 P.W.5 s signature in seizure mahazar as Ex.P5 the accident register copy as Ex.P6 the age certificate issued by the Dentist as Ex.P7 the age certificate issued by the Radiologist as Ex.P8 the letter of forwarding the accused for medical evidence as Ex.P9 the medical report of examination of accused as Ex.P10 the Forensic reports as Exs.P11 and P12 the First Information Report as Ex.P13 the rough sketch as Ex.P14 observation mahazar as Ex.P15 the letter given for examination of accused as Ex.P16.6 18 https: www.mhc.tn.gov.in judis Crl.R.C.No.70146. The prosecution marked the skirt worn by P.W.1 at the time of offence as M.O.1 her top as M.O.2 the lungi worn by the accused at the time of offence M.O.3 underwear worn by the accused as M.O.4.7. Upon being questioned about the evidence on record and the incriminating circumstances under Section 313 of Code of Criminal Procedure the accused denied the charges. No evidence was let in on behalf of the defense. Therefore the Trial Court proceeded to hear the learned Additional Public Prosecutor for the prosecution and learned Counsel for the accused. By a judgment dated 17.12.2015 found that the evidence of P.W.1 is clinching and unwavering and in a manner as to inspire the confidence of the Court. It further found that the evidence of P.W.2 as corroborating that of P.W.1. The Trial Court adverted to the defense on behalf of the accused that it was voluntary intercourse upon the consent of the accused and upon considering the chain of events and the place of occurrence concluded that that there is no probability that the offense had happened with the consent of the prosecutrix and therefore held that the charge against the accused is proved beyond reasonable doubt and imposed the mandatory minimum punishment of seven years Rigorous 7 18 https: www.mhc.tn.gov.in judis Crl.R.C.No.7014Imprisonment and a fine of Rs.500 while observing that the period already undergone by the accused pending the trial can be set off under Section 428 of Code of Criminal Procedure.8. Aggrieved by the said judgment the petitioner accused preferred Crl.A.No.605 on the file of the learned Sessions Judge Tiruvannamalai. The learned Appellate Court after hearing the learned Counsel on either side independently appraised the evidence on record and found that P.Ws.1 and 2 have categorically narrated about the incident and there is nothing in their cross examination which would favour the accused. Thereafter considering the medical evidence and the Forensic evidence and considering the fact that the case was properly investigated rejected the defence that the act was consensual. The further argument of the defence based on the judgment of Hon ble Supreme Court of India in Tameezuddin @ Tammu Vs. State ofof Delhi1 that in the absence of vaginal swabs being taken the presence of same being confirmed there should not be conviction was also rejected considering the defense taken in the instant case that it is one of the consent and therefore the absence of procedure of vaginal swabs will not make any difference in this case and dismissed the 1(2010) 1 MLJ748 18 https: www.mhc.tn.gov.in judis Crl.R.C.No.7014appeal and confirmed the sentence.9. Heard Mr.S.Vediappan learned Counsel appearing on behalf of the petitioner and Mr.L.Baskaran learned Government Advocateappearing on behalf of the prosecution would submit that prosecution in this case has proved the offence beyond doubt. Normally an offence under Section 376 of I.P.C will be made out even on the solitary evidence of the prosecutrix. In this case not only evidence of prosecutrix the corroboratory evidence of P.W.2 who accidentally went to the spot and witnessed the offence the medical evidence of the Doctor finding injury on 10 18 https: www.mhc.tn.gov.in judis Crl.R.C.No.7014the private part of the victim forensic evidence finding spermatozoa in MO.4 are all present which would establish the charge. He would submit that the evidence of P.W.1 prosecutrix cannot be lightly disbelieved in the offence of this nature and therefore the Trial Court and the lower Appellate Court were right in punishing the accused.12. I have considered the material evidence on record and the rival submissions made on either side. It is true that at the first blush upon perusal of F.I.R it can be argued as though there was a voluntary act of sexual intercourse being thwarted by P.W.2. But however a careful perusal of the entire complaint and thereafter the evidence of P.W.1 it is clear that at about 10. A.M when the victim a 17 year old girl was grazing her milch cow the petitioner accused initially went near her made a conversation and suddenly pulled her by catching hold of her hand to the nearby teak farm and had intercourse with her. The very fact that the victim did not physically and violently resist the accused will not make the act as consensual. A proper reading of Section 375 of Indian Penal Code would clearly convey that if the act of the accused is against the will of the prosecutrix and against her consent it would amount to the offence of rape. One has to step into the shoes of the victim and see the entire episode from 11 18 https: www.mhc.tn.gov.in judis Crl.R.C.No.7014her perspective. She was a 17 year old and was all alone. Yes she walked along when was dragged by her hand. But when the accused pushed her down and forced himself upon her. She wanted to and was trying to shout and resist but the accused and his acts prevailed. Upon reading of Section 90 of the Indian Penal Code it will be clear thatthere must be consent such consent should not be our of fear or misconception. As per Section 114 A of the Evidence Act there is a presumption of absence of consent in the offense of rape if the victim deposes that she did not consent. To rebut this presumption there must be positive evidence let in by the accused and mere absence of a valiant and violent effort on the part of the victim certainly does not amount to consent. As early as in the year 1957 a Learned Judge of the Punjab & Haryana High Court had in Rao Harnarain Singh and others Vs. State2 has most eloquently put it as follows :“A mere act of helpless resignation in the face of inevitable compulsion quiescence non resistance or passive giving in when volitional faculty is either clouded by fear or vitiated by duress cannot be deemed to be “consent” as understood in law. Consent on the part of a woman as a defence to an allegation of rape requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having freely exercised a choice between resistance and assent Submission 2 AIR 1958 P&H 12312 18 https: www.mhc.tn.gov.in judis Crl.R.C.No.7014of her body under the influence of fear or terror is no consent. There is a difference between consent and submission. Every consent involves a submission but the converse does not follow and a mere act of submission does not involve consent. Consent of the girl in order to relieve an act of a criminal character like rape must be an act of reason accompanied with deliberation after the mind has wished as in a balance the good and evil on each side with the existing capacity and power to withdraw the assent according to one s will or pleasure. A woman is said to consent only when she freely agrees to submit herself while in free and unconstrained possession of her physical and moral power to act in a manner she wanted. Consent implies the exercise of a free and untrammelled right to forbid or withhold what is being consented to it always is a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former. “ that there is minimum sentence of seven years prescribed for the offence and therefore only the minimum sentence is imposed on the accused and therefore there is nothing to interfere in the sentence by this Court. Per contra the learned Counsel for the petitioner submitted that Section 376 of I.P.C as it stood on the the of offence even though there was a minimum punishment of seven years the proviso vested the discretion in the Court to impose a sentence lesser than the period of minimum sentence for special reasons to be recorded. 15. In this case he submitted that the offence occurred in the year 2002 i.e. 19 years ago when the accused was 29 years old. Now he is 48 years of age. Now the petitioner is married and is having two children. The prosecutrix is no more. The petitioner became alchoholic and he has 14 18 https: www.mhc.tn.gov.in judis Crl.R.C.No.7014Alchohol withdrawal seizures Multiple Neurocysticercosis and is undergoing regular and constant treatment in the Government Medical College Hospital Tiruvannamalai. He submitted the original medical record issued by Tiruvannamalai Medical College Hospital and photo copy of the same is filed before this Court. 16. Therefore the question arises whether the condition of the accused and efflux of time can be considered as a special circumstance for imposing a sentence lesser than the minimum sentence. The Hon ble Supreme Court of India The Hon ble Supreme Court of India in Shimbhu and Ors. Vs. State of Haryana3 has categorically held that in respect of the offense of rape the efflux of time or socio economic condition of the accused cannot be special reason to impose a lesser punishment than the minimum sentence. Therefore I am unable to accept the submission of the Learned Counsel for the petitioner in this regard.17. 20 years down the lane after the commission of the crime the case presents the grim aftermath of the crime. The prosecutrix even though survived the offense and lived for many years thereafter did pass away at 3MANU SC 0871 201315 18 https: www.mhc.tn.gov.in judis Crl.R.C.No.7014an young age pending disposal of this revision. The direct and indirect impact of the crime on her body and mind cannot be ruled out. The accused being sent to jail at an early age has since turned into an alcoholic and is very sick now at the age of 48. But the long arm of the law will reach him and land him into jail. In between he is also married and the poor wife and children have to face the social stigma for no fault of theirs. If only the accused did not commit the offense their life in the village would have been peaceful. The offence has everything to do with the corrupt mind of the accused not seeing the prosecutrix as another living being This crime and the punishment has only the time tested message to every individual of the society of the kural :“ . “And this is what exactly the Hon ble Supreme Court of India had put it Shimbhu and Ors. Vs. State of Haryana4 that is primary object of the sentencing policy in the offense of rape being the deterrent message to the society 18. In the result this Criminal Revision case is dismissed. The conviction and sentence imposed by the Trial Court and the Appellate Court 4Refer foot note No.316 18 https: www.mhc.tn.gov.in judis Crl.R.C.No.7014stands confirmed. 23.12.2021Index: yesSpeaking ordergrsTo1.The Sessions Judge Tiruvannamalai.2.The Chief Judicial Magistrate Tiruvannamalai. 3.The Public Prosecutor High Court of Madras.4.The Inspector of Police Kalasapakkam Police Station Tiruvannamalai District.17 18 https: www.mhc.tn.gov.in judis Crl.R.C.No.7014D.BHARATHA CHAKRAVARTHY J. grsPre Delivery order inCrl.R.C.No.701423.12.202118 18

Analyze intention to cause death with respect to Culpable homicide: Cuttack High Court

The circumstance and the actions attributable to the culpable homicide did not amount to the murder falling within the ambit of Exception 4 to Section 300 of the I.P.C is held by Justice B.P.Routray in the matters of Raina @Ranjan Juanga v. the State of Odisha. [CRLA No. 356 of 2009]. The background of the case arises from, the appellant and the deceased two friends quarrelling with each other. The quarrel intensified near the house of the deceased and the appellant assaulted the deceased by fist blows. Hearing the shout, two elder brothers of the deceased came out from their house and separated them. During the quarrel deceased fell on a hard surface and sustained a head injury. Then the appellant left the place promise to take the deceased to the hospital and did not turn up. On the same day evening, the injured friend died and lodged a written report. Internal Investigation Command took up the investigation. The next day the dead body was sent to Post mortem examination. The accused was arrested and upon completion of the investigation, a charge sheet was submitted against the appellant as the sole accused of the commission of an offence under Section 302 of the Indian Penal Code. On the trial, the appellant takes the plea of false implication. The prosecution examined 5 witnesses and marked 7 exhibits to prove the case. No material object has been adduced in evidence. The defence did not adduce any evidence. On completion of the trial convicted the appellant for the murder of the deceased with the finding that the prosecution had successfully proven the charge against the appellant. The witness has said no use of weapons during the commission of the offence. The cause of the injury in the head of the deceased was due to his fall on the hard surface. There are no proven circumstances that point to the intention of the appellant. There does not appear to be any prior enmity between the appellant and the deceased. Even the case of the prosecution is that they both are friends before the occurrence Post mortem examination found one Lacerated injury over the right frontal area of the head, one abrasion on the left knee. The abdominal skin around the umbilicus was found to have turned blue. All the injuries were found to be ante mortem in nature. The external injury on the head was associated with bleeding and fracture of the frontal bone exposing the brain matter just above the right orbital margin. In this opinion, it is held that death was homicidal.  The Hon’ble Court said that the appellant has undergone almost 14 years of imprisonment. The sentence is modified to the period of imprisonment already undergone by the appellant, accordingly direct to immediate release. The Culpable actions of the appellant were without any intention to cause death, which attracts the punishment under Section 304 part II of the I.P.C and not under Section 302.   

IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.3509 An application under Section 374 of the Cr.P.C. against the judgment dated 30th June 2009 passed by the learned Sessions Judge Keonjhar in Sessions Trial Case No.608. Raina @ Ranjan Juanga State of Odisha Advocate(s) appeared in this case : For Appellant Mr. Chittaranjan Sahu Advocate For Respondent Mr. J.Katikia Advocate CORAM : THE CHIEF JUSTICE JUSTICE B.P. ROUTRAY B.P. Routray J. 6th September 2021 1. The Appellant has been convicted and sentenced to life imprisonment for murder simpliciter by the learned Sessions Judge Keonjhar in Sessions Trial Case No.608. 2. The prosecution case in brief is that the Appellant and the deceased were two friends and belonged to the same village Talapada. On 24th September 2007 around 9 pm they were coming down the village road quarreling with each other. The quarrel intensified near the house of deceased and the Appellant assaulted the deceased by fist blows. Hearing CRLA No.3509 3. P.W.5 the then I.I.C. of Daitari Police Station took up investigation. the shout two elder brothers of deceased came out from their house and separated them. But during the quarrel deceased fell down on a hard surface and sustained a head injury. Then the Appellant left the place saying that he would take the deceased to Hospital and did not turn up. P.Ws.1 and 2 took the deceased into their house. He died there the next evening around 5 pm. P.W.1 lodged the written report Ext.1) on the same night of the death. It was registered as Daitari P.S. Case No.27 dated 25th September 2007. On the next morning inquest over the dead body was held and the dead body was sent for post mortem examination. P.W.4 the Medical Officer working as O&G specialist in the Sub Divisional Hospital Anandapur conducted post mortem examination on 26th September 2007 at 5 pm. The accused was arrested on 1st October 2007 and upon completion of investigation a charge sheet was submitted on 25th December 2007 against the Appellant as the sole accused for the commission of the offence under Section 302 of I.P.C. 4. The Appellant faced trial taking the plea of false implication. In course of trial prosecution examined 5 witnesses and marked 7 exhibits in order to prove their case. No material object has been adduced in evidence. 5. On the other hand defence did not adduce any evidence. 6. The learned Sessions judge upon completion of trial convicted the Appellant for murder of the deceased with the finding that prosecution had successfully proved the charge against him. CRLA No.3509 7. At the outset it must be noted that the death has been held to be homicidal. P.W.4 who conducted post mortem examination found one lacerated injury over the right frontal area of the head one abrasion on the left knee. The abdominal skin around the umbilicus was found to have turned blue. All the injuries were found to be ante mortem in nature. The external injury on the head was associated with bleeding and fracture of the frontal bone exposing the brain matter just above the right orbital margin. It was corresponding to the internal injury of hematoma in the right hemisphere of the brain of size 2” X 2.5”. P.W.4 opined that the death was due to hemorrhage and shock relating to the head injury. The time of death was within 24 hours from the time of post mortem examination. P.W.4 further opined that the death was homicidal in nature. Thus considering the features of injuries as opined by P.W.4 and keeping in view the circumstances alleged by prosecution it is concluded that the deceased died a homicidal death. This is in any event not disputed by counsel for the Appellant. to have caused the homicidal death P.Ws.1 and 2 are the eye witnesses to the occurrence. A perusal of their evidence reveals that they both have stated to have seen the Appellant and the deceased quarreling with each other near their house. Neither of the witnesses have said anything about the use of any weapon in the commission of the offence. Their evidence is to the effect that the Appellant dealt fist blows to the deceased during quarrel and the latter fell down and sustained an injury on the head. Thus from the evidence of P.Ws.1 and 2 it is clear that the cause of the injury on the head of the deceased was due to his fall on the hard surface. CRLA No.3509 8. The next question to be examined is whether the Appellant can be said 9. Upon a close scrutiny of the circumstances and the entire evidence P.W.5 has admitted in his cross examination that the spot of occurrence was stony with hard surface. This is also not disputed by P.W.1. Therefore the reason for the head injury which resulted in the death of the deceased is due to fall of the deceased during quarrel with the Appellant. None of the witnesses including P.Ws.1 and 2 have whispered about any intention of the Appellant either for the quarrel or for the blows dealt by him. There is no other proven circumstance that points to the intention of the Appellant. Also there does not appear to be any prior enmity between the Appellant and the deceased. Even the case of the prosecution is that they both were friends prior to the occurrence. adduced on record the Court is unable to discern the intention behind the homicidal killing of the deceased. At the same time it cannot be held that the Appellant did not have the knowledge that the fall on the hard surface is likely to cause an injury. The circumstances and the actions attributable to the Appellant suggest a clear case of culpable homicide not amounting to murder falling within the ambit of Exception 4 to Section 300 of the I.P.C. The occurrence took place in the course of quarrel between the Appellant and the deceased. The fist blows dealt by the Appellant in course of quarrel and which caused the deceased to fall on the hard surface was without premeditation and without any undue advantage taken by the Appellant. The quarrel appears to be a sudden one and nothing is there on record to show any cruel or unusual action on the part of the Appellant. Thus in our considered opinion the culpable action of the Appellant was without any intention to cause death which attracts the punishment under Section 304 Part II of the I.P.C. and not CRLA No.3509 under Section 302. We conclude as such. The conviction of the Appellant by the trial court in the impugned judgment is set aside and modified to this extent. 10. As submitted by learned counsel for the Appellant and as also revealed from record the Appellant has been in custody since 1st October 2007. In other words he has already undergone almost 14 years of imprisonment. In view of the above discussion the sentence is modified to the period of imprisonment already undergone by the Appellant. Accordingly we direct for his immediate release. The Appellant be set at liberty immediately if his detention is not required in any other case. 11. The appeal is allowed to the above extent. The LCR be returned forthwith. An urgent certified copy of this order be transmitted forthwith to the concerned Jail Superintendent. Judge Dr. S. Muralidhar) Chief Justice 6th of September 2021. M.K. Panda Sr. Steno CRLA No.3509

On grounds of public policy, the wife cannot enter into a contract that she will not claim any alimony in future: High Court of Himachal Pradesh

Such contract is void and the Court will take notice of that and ignore such an agreement even though it was made by consent. The wife cannot barter away her right to future maintenance and enter into a contract to that effect and such a contract will be a void contract in the eye of law. This remarkable judgment was passed by the High Court of Himachal Pradesh in the matter of BEASA DEVI V SHIV DAYAL [CMP NO. 8958 OF 2019 IN FAO (HMA) NO. 50 OF 2001] by Honourable Justice Tarlok Singh Chauhan. This application was filed under Section 25 (2) of the Hindu Marriage Act, 1955 for the enhancement of the permanent alimony and seeking clarifications in terms of the liberty reserved vide judgment dated 19.11.2001. The facts of the case are such that the parties to this application got separated from each other and their marriage was dissolved by a decree of divorce granted by this Court vide judgment which was later upheld and application under Section 25 of the Act instituted by the appellant for permanent alimony was allowed by this Court.  As per the compromise, the respondent agreed and undertook to deposit a further sum of Rs.1,50,000/- in addition to already deposited by him as per a previous. The Court held that the applicant is entitled to interest on the total sum till her life time or till her remarriage. In addition, thereto, respondent also agreed to pay a sum of enhanced maintenance to the applicant. The Court while disposing of the appeal observed that in case of any difficulty liberty was reserved to the parties to approach the Court for seeking further clarifications. Hence the instant application was filed under Section 25 (2) for the enhancement of the permanent alimony. The High Court in this case faced two issues, whether the jurisdiction of the court is ousted by agreement and whether the right to future maintenance is transferable and if not, is the settlement void as far as the terms of maintenance are concerned. The Court observed that by agreement, jurisdiction of the court which has been created by a statute cannot be taken away. Section 25 as a whole confers the jurisdiction on the competent court to provide permanent alimony and maintenance at the time of passing any decree or at any time subsequent thereto.  The Court further observed that even if, a fixed maintenance allowance is agreed upon towards a decree of divorce, the quantum if accorded and recorded by the court, has to be understood for purpose of maintenance within the ambit of Section 25(1) of the Hindu Marriage Act and with the change in the circumstances the same shall be liable to be re-assessed under Section 25(2) of the Hindu Marriage Act. For the second issue, the HC stated that, “The wife applies under S. 40 for alimony. It is held that on grounds of public policy the wife cannot enter into a contract that she will not claim any alimony in future. The contract is void and the Court will take notice of that and ignore that part of the order although it was made by consent. Wife cannot barter away her right to future maintenance and enter into a contract to that effect and such a contract will be a void contract in the eye of law.” Also, considering the contractual aspect assuming a wife gives up her right to claim a higher rate of maintenance allowance in future her consent will not be regarded as lawful. Also, such an agreement will not only defeat the provisions of subsection (2) of Section 25 but will also frustrate the purpose of giving maintenance allowance. The purpose is to achieve ‘social justice’ in interpreting provisions relating to maintenance, the Court is expected to bridge the gap between law and the society. Provisions relating to maintenance fall in category of legislation which is aimed at empowering the destitute and achieving the social justice, equity and dignity of the individual. In dealing with such cases there is necessity for drift from the ‘adversarial litigation’ to social context adjudication’, which is the need of the hour. HC stated, “In granting permanent alimony no arithmetic formula can be adopted as there cannot be mathematical exactitude. It shall depend upon the status of the parties, their respective social needs and financial capacity of the husband and other obligations. The Court is required to take note of the fact that amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband. At the same time, the amount so fixed cannot be excessive or affect the living condition of the other party.” The Court adverting to the facts of the present case observed that the respondent in the instant case is a retired Shashtri teacher and is currently drawing a pension of about Rs.32,000/-. whereas the applicant has admittedly no independent source of income and is receiving interest of Rs.1240/- per month which is accruing on the amount invested in the bank. The Court thus held “the present application is allowed and the respondent is directed to pay a further sum of Rs. 8000/- per month to the applicant. The concerned Treasury Officer is directed to henceforth deduct a sum of Rs.8000/- per month from the pension of the respondent and remit the same directly to the bank account of the applicant.”

Hig h C o urt of H.P on 30 04 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLACMP No. 89519 in FAONo. 501Reserved on : 23.04.2021Decided on28.04.2021Smt. Beasa Devi…..Applicant AppellantVersusSh. Shiv Dayal ….Non applicant RespondentCoram:The Hon’ble Mr. Justice Tarlok Singh Chauhan Judge.Whether approved for reporting 1 Yes.For the Applicant Appellant: Mr.. Raman Sethi Advocate.For the Non applicant Respondent:Mr. Devender K. Sharma Advocate._____________________________________________________________________Justice Tarlok Singh Chauhan JudgeThe applicant has filed this application under Section 25(2) of the Hindu Marriage Act 1955for theenhancement of the permanent alimony and seeking furtherdirections clarifications in terms of the liberty reserved videjudgment dated 19.11.2001.2.The brief facts leading to the filing of the presentapplication are that the parties to this application got separated fromeach other and their marriage was dissolved by a decree of divorcegranted by this Court vide judgment dated 08.08.1980 passed in FAONo. 77 which was upheld in LPA No. 80. However the1 Whether reporters of the local papers may be allowed to see the judgment Yes. Hig h C o urt of H.P on 30 04 HCHP 2application under Section 25 of the Act instituted by theapplicant appellant for permanent alimony in LPA No. 80 wasallowed by this Court vide judgment dated 29.08.1980 on thefollowing terms: “(i). The respondent shall pay maintenance of Rs.300 permensem to the appellant for the period 01.07.1980 to28.02.1982. the maintenance pertaining to a particular monthshall be payable by the 10th of the succeeding month.(ii) The respondent shall deposit Rs.36 000 in the Court ofthe District Judge Mandi on or before 22.08.1982 and on suchdeposit being made the liability of the respondent to pay anymaintenance for the further period shall come to an end.(iii) The amount of Rs.36 000 if deposited by the respondentwithin the period aforesaid in the Court of the District Judge shall be invested by that Court in a fixed deposit earningmonthly interest with some scheduled bank. The deposit shallbe made by the Court in its own name. The Court shall drawmonthly interest and pay the same to the appellant till herremariage or till her death whichever contingency occursearlier. On the death or remarriage of the appellant theprincipal alongwith interest if any accrued for the periodsubsequent to the remarriage or death of the appellant shallbe paid back to the respondent. The District Judge shall in thefirst instance invest this amount for a period of 7 years andmay renew it from time to time as the contingency mayrequire.(iv) In case the respondent fails to deposit the aforesaidamount of Rs.36 000 on or before 22.08.1982 the appellantshall be entitled to recover in lump sum Rs.30 000 towardsher permanent alimony. Hig h C o urt of H.P on 30 04 HCHP 33.After some time the applicant appellant had filed anapplication which was registered as CMP No. 898 forrescinding the decision dated 29.08.1980 however the same wasdismissed vide order dated 13.10.1998 and the applicant wasdirected to approach the appropriate Court forum as permissibleunder law.4.Accordingly the applicant approached the learnedDistrict Judge Mandi and filed an application under Section 25(2) ofthe Act but the same was dismissed and aggrieved by this dismissal the applicant filed the appeal i.e. FAONo. 501 beforethis Court.5.This appeal was disposed of as having beencompromised between the parties outside the Court. As per thecompromise agreement so arrived at between the parties the non applicant respondent agreed and undertook to deposit a further sumof Rs.1 50 000 on or before 31.03.2002 in addition to Rs.36 000 already deposited by him as per the decision dated 29.08.1980passed in LPA No. 80.6.This Court vide judgment dated 19.11.2001 has held thatthe applicant is entitled to interest on this total sum of Rs.1 86 000 w.e.f. 01.04.2001 till her life time or till her remarriage and Clause(iii) of the decision dated 29.08.1980 was modified. In additionthereto non applicant respondent also agreed to pay a sum of Hig h C o urt of H.P on 30 04 HCHP 4Rs.10 000 towards the total claim of enhanced maintenance to theapplicant upto 31.03.2002 on or before 31.12.2001.7.This Court while disposing of the appeal vide judgmentdated 19.11.2001 observed that in case of any difficulty liberty wasreserved to the parties to approach the Court for seeking furtherdirections clarifications.8.In this background the instant application has been filedby the petitioner for enhancement of the permanent alimony.9.Even though the non applicant respondent was grantedopportunity to file reply however he did not choose to do so as isevident from the statement given by his learned counsel today.I have heard learned counsel for the parties and havegone through the records of the case.10.Section 25 of the Hindu Marriage Act reads as under: “25. Permanent alimony and maintenance.Any courtexercising jurisdiction under this Act may at the time ofpassing any decree or at any time subsequent thereto onapplication made to it for the purpose by either the wife orthe husband as the case may be order that the respondentshall pay to the applicant for her or his maintenance andsupport such gross sum or such monthly or periodical sum fora term not exceeding the life of th applicant as having regardto the respondent’s own income and other property if any the income and other property of the applicant the conductof the parties and other circumstances of the case it mayseem to the court to be just and any such payment may besecured if necessary by a charge on the immovable propertyof the respondent. Hig h C o urt of H.P on 30 04 HCHP 5(2) If the court is satisfied that there is a change in thecircumstances of either party at any time after it has madean order under sub sectionit may at the instance ofeither party vary modify or rescind any such order in suchmanner as the court may deem just.(3) If the court is satisfied that the party in whose favour anorder has been made under this section has re married or ifsuch party is the wife that she has not remained chaste or ifsuch party is the husband that he has had sexualintercourse with any woman outside wedlock it may at theinstance of the other party vary modify or rescind any suchorder in such manner as the court may deem just.”11.At the outset learned counsel for the non applicant respondent questioned the very maintainability of this application onthe ground that since the judgment dated 19.11.2001 passed in FAO(HMA) No. 501 was on the basis of the compromise therefore the instant application for enhancement was notmaintainable. Learned counsel for the non applicant respondentfurther argues that the applicant by her own act and conduct isestopped from filing the present application and the previousdecision rendered by this Court operates as res judicata.12.Both these submissions of the learned counsel for thenon applicant respondent are not at all tenable in view of thejudgment rendered by a Coordinate Bench of this Court in KubjaDevi vs. Ishwar Dass AIR 2017 HP 21 wherein it was held thatwhere the maintenance is fixed by a Court though the basis of it wasan agreement it would come directly under Section 25 of the Act. Hig h C o urt of H.P on 30 04 HCHP 6Thus a party will be entitled to have an enhancement ofmaintenance once such party proves that there has been a materialchange in the circumstances justifying the enhancement. Therefore even if agreement relating to the quantum may be a part of thesettlement but when the decree passed on adopting the saidsettlement it becomes the order under Section 25(1) of the Act assuch the Court has statutory jurisdiction under Section 25(2) todirect enhancement of the maintenance with changedcircumstances. It was further held that neither the provisions ofSection 11 of the CPC nor the principles of res judicata will bar a suitof maintenance on an enhanced rate for a different period underaltered circumstances even though on an earlier occasion amaintenance decree has been passed and a certain rate ofmaintenance had been fixed thereunder. The reason being that sucha decree as to the rate of maintenance is not final.13.It is apt to reproduce relevant observations as containedin paras 5 and 6 of the judgment which read as under: 5. After hearing the matter at length in the light of the givenfacts and circumstances and also the evidence available onrecord as well as the law cited at the Bar it would not beimproper to conclude that the agreement qua the payment ofa sum of Rs. 450 per month to the petitioner as maintenanceallowance in terms of the divorce deed Ext.DA cannot betreated as an estoppal to debar the petitioner for seekingenhancement of the amount of alimony in the changedcircumstances. The law on the issue is no more res integra.The High Court of Tripura at Agartala in Harilal Sarkar vs.Subhra Sarkar 165 AIC 784 :2016 SCC OnLine Tri 356 a Hig h C o urt of H.P on 30 04 HCHP 7case having similar facts has held that an order quamaintenance allowance based on the settlement compromiseduring the course of proceedings in a divorce petition has tobe treated an order of maintenance passed under Section25(1) of the Hindu Marriage Act and as such a petition forenhancement of the amount filed under Section 25(2) of theAct is maintainable and not barred by the principle ofestoppal. It is seen that three points were formulated bylearned Judge after taking into consideration the provisions oflaw and also the law laid down by various high Courts by wayof judicial pronouncements and has held as under:“10.On the face of the submission made by the learnedcounsel for the parties 3(three) pertinent questions haveemerged for consideration which are as under :(i) Whether by agreement the jurisdiction of thecompetent court under Section 25(2) of the HinduMarriage Act 1955 can be oustedWhether the judgment and order dated 14.09.2010 isthe order of maintenance will not come within theprovince of Section 25(2).(iii) Whether the right to future maintenance istransferrable and if not whether the settlement is void so far the terms of maintenance is concerned WHETHER BY AGREEMENT THE JURISDICTION OF THECOMPETENT COURT UNDER SECTION 25(2) OF THEHINDU MARRIAGE ACT 1955 CAN BE OUSTED 11. By agreement jurisdiction of the court which has beencreated by a statute cannot be taken away. Section 25 as awhole confers the jurisdiction on the competent court toprovide permanent alimony and maintenance "at the timeof passing any decree or at any time subsequent thereto "on application made to it for the purpose by either the wifeor the husband as the case may be order that therespondent shall pay maintenance and support such grosssumwhich is factored by various element as Hig h C o urt of H.P on 30 04 HCHP 8statutorily provided or by the law as developed in thecourse of time. It is no more res integra that if anyagreement comes in conflict with any valid statute or itsprovision that becomes unlawful agreement and void interms of Section 23 of the Indian Contract Act. Hence thejurisdiction of the court for granting maintenance at thetime of passing any decree or subsequent thereto cannotbe taken away by the settlement agreement. It is true thatif the order is passed under Section 25(1) of the HinduMarriage Act 1955 in that case the competent court mayvary modify or rescind any order of maintenance or grossmaintenance in a change in the circumstance under Section25(2) of the Hindu Marriage Act 1955. But at the sametime if any settlement which has been acted on by thecourt or recorded the parties thereto cannot in the ordinarycourse take the stand contrary thereto and in that case their action might be hit by the principle of estoppel if not such stand emanates from the statute.WHETHER THE JUDGMENT AND ORDER DATED 14.09.2010 IS THE ORDER OF MAINTENANCE UNDER SECTION 25(1) OF THE HINDU MARRIAGE ACT OR NOT 12. There was a compromise petition before the court onsettlement of the quantum of the maintenance which wastermed as the fixed maintenance and the court had givenits approval by passing the compromise decree on grantingdivorce and maintenance. It is a well accepted propositionthat compromise decree pertains the charter of agreementand the decree is drawn accordingly. It can perhaps be saidthat the quantum of maintenance under the decree was notthe result of any decision by the court it was the result ofan agreement between the parties which wasacknowledged by the court for purpose of making itexecutable at the instance of maintenance holder. Hig h C o urt of H.P on 30 04 HCHP 913. In Seshi Ammal and another Vs. Thaiyu Ammal reported in AIR 1964 Madras 217(V 51 C 61) the MadrasHigh Court has enunciated the law holding that such a casewill be one where the maintenance is fixed by a decree ofcourt though the basis of it was an agreement it will comedirectly under Section 25. Thus the respondent will beentitled to have an enhancement of maintenance once sheproves that there has been a material change in thecircumstances justifying the enhancement. Therefore evenif agreement relating to the quantum may be the part ofthe settlement but when the decree passed on adopting thesaid settlement it becomes the order under Section 25(1) ofthe Hindu Marriage Act. And as such the court has thestatutory jurisdiction under Section 25(2) to directenhancement of the maintenance with a change in thecircumstances. The said manner may not be applicable inthe case where the permanent alimony has been settledand paid by means of one time payment. That payment hasto be treated as the property transferred for purpose ofmaintenance.WHETHER THE RIGHT TO FUTURE MAINTENANCE ISTRANSFERRABLE AND IF NOT WHETHER THE SETTLEMENTIS VOID SO FAR THE TERMS OF MAINTENANCE ISCONCERNED 14. Section 6(dd) of the Transfer of Property Act has beenincorporated by the Amending Act 1929. Prior to theamendment there was a conflict of opinion on whether aright of future maintenance when it was fixed by a decree was transferable. The Madras High Court held that it was in(Rajah D.K. Thimmanayanim Bahadur Varu Rajah ofKalahasti and others Vs. Rajah Damara Kumara VenkatappaNayanim Bahadur Varu and others reported in AIR 1928Madras 713) but the Calcutta High Court ruled that it wasnot. Asad Ali Mokat Vs. Haidar Ali reported in 191038Cal 13 did not agree with the decision of Madras High Hig h C o urt of H.P on 30 04 HCHP 10Court. The words ‘in whatsoever manner arising secured ordetermined’ as appearing are very comprehensive and it issubmitted that they overrule cases in which when the righthas been created by a deed of transfer it was held that thequestion whether the right was alienable depends upon theintention of the parties as expressed in the deed.15. The Privy Council in Lal Rajindra Narain Singh alias LalluSahib Vs. Mt. Sundar Bibi reported in AIR 1925 PC 176 heldthat a right of future maintenance cannot be attached asthe right to future maintenance is not capable of transfer. Inthis regard provisions of Section 60 of the Code of CivilProcedure 1908 can be referred as co terminous provisionof Section 6(dd) of the Transfer of Property Act as the saidprovision operates in the similar field for protection of rightof future maintenance from attachment. Therefore so farthe settlement is concerned the parties can determine inwhatsoever manner the maintenance in the circumstanceswhen the settlement or the compromise was struck. In thiscase the decree dated 14.09.2010 as passed by the Judge Family Court West Tripura in T.S.(Divorce) No. 1810is couched with the order of maintenance though thequantum has emerged from an agreement as stated andsuch order has been passed under Section 25(1) of theHindu Marriage Act 1956. There can be no otherinterpretation harmonious to the object of Section 25 of theHindu Marriage Act 1955. The determination of themaintenance was in the circumstances which existed at thetime of execution of the settlement compromise cannotextinguish the authority of the court as provided underSection 25(2) of the said Act. If the word fixed quantifyingthe maintenance is attributed and read in its literalmeaning such agreement shall come in conflict with thestatutory provision and the public policy hence that part ofthe agreement shall be void in terms of Section 23 of theIndian Contract Act. In the event of permanent alimony as Hig h C o urt of H.P on 30 04 HCHP 11settled and as termed as the property for maintenance willnot come within the province of Section 25(2).16. Hence there is not illegality when the Judge FamilyCourt Agartala exercised the jurisdiction under Section25(2) of the Hindu Marriage Act by enhancing themaintenance from Rs.4000 to Rs.6000 . Even if a fixedmaintenance allowance is agreed upon towards a decree ofdivorce the quantum if accorded and recorded by the court has to be understood for purpose of maintenance within theambit of Section 25(1) of the Hindu Marriage Act and with thechange in the circumstances the same shall be liable to bere assessed under Section 25(2) of the Hindu Marriage Act.The statutory purpose is very simple is to preserve the valueof the maintenance allowance. This statutory principle shallequally apply when the maintenance to be paid periodically interms of any settlement. 17. Having held so we do not find any merit in this appealfrom the order and accordingly the same is dismissed”.6. Similar is the ratio of High Court of Allahabad in Ram ShankerRastogi vs. Smt. Vinay Rastogi AIR 1991 Allahabad 255. Thefacts of this case were also identical to the present one beforethis Court. It has been held in this judgment that the plea ofestoppel or res judicata can not be invoked in a case of thisnature nor the question of maintainability of petition underSection 25(2) for enhancement of maintenance allowancepreviously awarded by a consent order cannot be raised. Thisjudgment reads as follows:“10. Neither the provisions of S. 11 of the Code of CivilProcedure nor the principles of res judicata will bar a suit formaintenance on an enhanced rate for a different period underaltered circumstances even though on an earlier occasion amaintenance decree had been passed and a certain rate ofmaintenance had been fixed thereunder. The reason beingthat such a decree as to the rate of maintenance is not final. Hig h C o urt of H.P on 30 04 HCHP 1211. The case of Hirabai Bharucha v. Pirojshah Bharucha AIR1945 Bombay 537 stems from proceedings under S. 40 ofthe Parsi Marriage and Divorce Act 1936. Under thisprovision a Court is authorised to award permanent alimonyto a wife either at the time of the passing of any decree underthat Act or subsequently thereto. The wife is granted a decreeof divorce. After the decree is passed the husband and wifearrive at certain consent terms. One of the terms of theconsent order is :"This Court doth declare that the defendant hereby agreesnot to claim any alimony now or at any time in future.".The wife applies under S. 40 for alimony. It is held that ongrounds of public policy the wife cannot enter into a contractthat she will not claim any alimony in future. The contract isvoid and the Court will take notice of that and ignore thatpart of the order although it was made by consent. Relianceis placed upon a remark by Lord Atkin:"The wife s right to future maintenance is a matter of publicconcern which she cannot barter away." Accepting this proposition the learned Judge takes the viewthat the wife cannot barter away her right to futuremaintenance and enter into a contract to that effect andsuch a contract will be a void contract in the eye of law. 12. Let us now read Section 25. Subsectioninter alia provides that any Court exercising jurisdiction under the Actmay at the time of passing any decree or at any timesubsequent thereto order that the respondent shall pay tothe applicant for her or his maintenance and support suchgross sum or such monthly or periodical sum for a term notexceeding the life of the applicant as having regard to therespondent s own income and other property if any theincome and the other property of the applicant the conductof the parties and other circumstances of the case which Hig h C o urt of H.P on 30 04 HCHP 13may seem to the Court to just. Sub sectionmay beextracted : If the court is satisfied that there is a change in thecircumstances of either party at any time after it has madean order under sub sectionit may at the instance ofeither party vary modify or rescind any such order in suchmanner as the court may deem just."Admittedly the Second Civil Judge exercised powers underthe Act while passing a decree of divorce under S. 13 and asalready indicated he passed an order fixing a certain sum asthe monthly maintenance allowance for the wife. The Courtdid not pass any order that the wife will not claim anenhancement of the maintenance allowance in futureAssuming a wife gives up her right to claim a higher rate ofmaintenance allowance in future her consent in our opinion will not bring into existence a valid contract. Such anagreement will not only defeat the provisions of subsection(2) of S. 25 but will also frustrate the purpose of givingmaintenance allowance. Judicial notice can be taken of risingprices with the result that the cost of bare existence isregularly rising rather mercurially. In principle it makes nodifference between an agreement by a wife not to claim anyalimony at all and an agreement not to claim anyenhancement of the rate of maintenance allowance whatever be the change in the circumstances”.14.Now adverting to the facts of the case it would benoticed that initial order of maintenance was passed four decadesback on 29.08.1980 and thereafter the same was enhanced by anorder which was passed nearly two decades back on 19.11.2001.15.The inherent and fundamental principles of grantingmaintenance is for the amelioration of the financial state of affairs as Hig h C o urt of H.P on 30 04 HCHP 14well as mental agony and anguish that a woman suffers when she iscompelled to leave her matrimonial home. The matrimonial statutesdealing with the subject command that there have to be someacceptable arrangements so that she can sustain herself. A womanwho is constrained to leave matrimonial home should not be allowedto feel that she has fallen from grace and compelled to move hitherand thither for arranging sustenance. As per law she is entitled tolead a life in similar manner as she would have lived in the house ofher husband. She cannot be compelled to become a destitute orbeggar.16.The purpose is to achieve ‘social justice’. In interpretingprovisions relating to maintenance the Court is expected to bridgethe gap between law and the society. Provisions relating tomaintenance fall in category of legislation which is aimed atempowering the destitute and achieving the social justice equityand dignity of the individual. In dealing with such cases there isnecessity for drift from the ‘adversarial litigation’ to social contextadjudication” which is the need of the hour.17.In granting permanent alimony no arithmetic formula canbe adopted as there cannot be mathematical exactitude. It shalldepend upon the status of the parties their respective social needsand financial capacity of the husband and other obligations. TheCourt is required to take note of the fact that amount of maintenancefixed for the wife should be such as she can live in reasonable Hig h C o urt of H.P on 30 04 HCHP 15comfort considering her status and the mode of life she was used towhen she lived with her husband. At the same time the amount sofixed cannot be excessive or affect the living condition of the otherparty. 18.The Hon’ble Supreme Court in Vinny Parmvir Parmarvs. parmvir Parmar AIR 2011 SC 2748 held as follows: “…. It is further seen that the court considering suchclaim has to consider all the above relevant material anddetermine the amount which is to be just for livingstandard. No fixed formula can be laid for fixing theamount of maintenance. It has to be in the nature ofthings which depend on various facts and circumstancesof each case. The court has to consider the status of theparties their respective needs the capacity of thehusband to pay having regard to reasonable expensesfor his own maintenance and others whom he is obligedto maintain under the law and statute. The courts alsohave to take note of the fact that the amount ofmaintenance fixed for the wife should be such as she canlive in reasonable comfort was used to live when shelived with her husband. At the same time the amount sofixed cannot be excessive or affect the living condition ofthe other party. These are all the broad principles courtshave to be kept in mind while determining maintenanceor permanent alimony.”19.In Vishwanath Sitaram Agrawal vs. Sau. SarlaVishwanath Agrawal AIR 2012 SC 2586 the Hon’ble SupremeCourt while granting permanent alimony has observed that theamount that has already been paid to the respondent wife towards Hig h C o urt of H.P on 30 04 HCHP 16alimony is to be ignored as the same had been paid by virtue of theinterim orders passed by the courts. It is not expected that therespondent wife has sustained without spending the said money.20.The Division Bench of the Orissa High Court in Ruby @Pritipadma Pradhan vs. Debasish Pradhan 2014Orissa LR691 after taking note of the various decisions on the subject hassummed up the principles as follows:Maintenance depends upon the summation of all the factsof the situation involved in the particular case.(b) For granting maintenance the scale and mode of living the age habits wants and class of the life of the parties hasto be regarded.Maintenance being such that the wife could live in areasonable comfort considering her status and mode of lifewhich she was used to while living with her husband.(d) During the pendency of the suit for maintenance whichmay take a considerable time to attain finality the wifecannot be forced to face starvation till she is subsequentlygranted maintenance from the date of the filing of the suit.(e) Maintenance must necessarily encompass a provision forresidence. Maintenance is given so that the lady can live inthe manner more or less to which she was accustomed.(f) Maintenance necessarily must encompass a provision forresidence. Maintenance is given so that the lady can live inthe manner more or less to which she was accustomed. Theconcept of maintenance must therefore include provision forfood and clothing and the like and take into account the basicneed of a roof over the head.(g) Maintenance must vary according to the position andstatus of a person. It does not only mean food and raiment.It is to be seen that the amount fixed cannot be excessiveaffecting the living condition of the other party. Hig h C o urt of H.P on 30 04 HCHP 1721.The Hon’ble Supreme Court in Kalyan Dey Chowdhuryvs. Rita Dey Chowdhury Nee Nandy14 SCC 200 whiledealing with the case of maintenance has calculated the permanentalimony on the basis of 25% of the salary of the husband in thefollowing words: “15…...Following Dr. Kulbhushan Kumar vs. Raj Kumari andAnr. 1970SCC 129 in this case it was held that 25% ofthe husband’s net salary would be just and proper to beawarded as maintenance to the respondent wife. Theamount of permanent alimony awarded to the wife must bebefitting the status of the parties and the capacity of thespouse to pay maintenance. Maintenance is alwaysdependent on the factual situation of the case and the courtwould be justified in moulding the claim for maintenancepassed on various factors.”22.The respondent in the instant case is a retired Shashtriteacher and is currently drawing a pension of about Rs.32 000 .Whereas the applicant has admittedly no independent source ofincome and is receiving interest of Rs.1240 per month which isaccruing on the amount invested in the bank pursuant to thedirections passed by this Court in FAO(HMA) No. 501Judge 28.04.2021

Non examination of investigating officers and witnesses can cause prejudice to the parties of the case – Delhi High Court.

Non examination of investigating officers and witnesses can cause prejudice to the parties of the case – Delhi High Court. In certain cases it is hard to determine the commission of offence under section 375 of IPC mainly when the conviction is to be awarded only basing the statement of the complainant, such a matter was dealt in the case of RAM BAX VS THE STATE OF NCT DELHI (CRL.A. 226/2007) by the judgement given by single bench consisting HON’BLE JUSTICE CHANDRA DHARI SINGH. Complainant used to reside along with the Appellant, her mother and younger step brother. It is alleged that on 14th July 2004, Complainant was called by the Appellant inside the room. The Appellant/Accused asked the Complainant to massage his head as he was having some pain in his head. When the Complainant entered inside the room, she saw the Appellant standing naked.It is alleged that the Appellant committed rape on her. When Complainant tried to raise alarm, the Appellant gagged her mouth. It is further alleged that thereafter the Appellant continued to commit rape on her .On 6th September, Accused again committed rape upon the Complainant. The Complainant filed a complaint with the Police on the same day and later the accused is convicted with 8 years of rigorous imprisonment hence this appeal is filed opposing the said Conviction. The learned counsel for the petitioner contended that the neighbors and others persons who allegedly warned accused to keep his behavior good towards Complainant were also not examined. It is further submitted that the credibility of the prosecution’s story further diminished, when it is observed that none of the persons, which were mentioned by the Complainant in her statement under Section 164 of CrPC, were examined. It is also submitted that the complainant has categorically stated in her statement under Section 164 of CrPC and before the Trial Court that she informed about the incident. The counsel for the respondent contended that testimony of the Complainant herself was sufficient to prove the guilt of the Accused. It held that the sexual assault had been proved and the prosecution had established its case beyond reasonable doubt that the Accused committed rape on the Complainant during her stay with him. It also held that conviction in the case of offence punishable under Section 376 of CrPC can be based on the sole testimony of the Complainant. The hon’ble Delhi High Court opined that “the instant case is required to be decided in the light of the aforesaid settled legal propositions. This Court is of the view that the given facts and circumstances make it crystal clear that if the evidence of the complainant is read and considered in totality of the circumstances along with other evidence on record, in which the offence is alleged to have been committed, her deposition does not inspire confidence. In such a fact situation, the appellant becomes entitled to the benefit of doubt. In view of the above, the present appeal succeeded and is allowed. The impugned judgment dated 18th July, 2006 and order on sentence dated 20th July 2006 passed by the learned Additional Sessions Judge, New Delhi, wherein the Appellant/Accused was convicted for the offence punishable under 376 of Indian Penal Code, 1860 is set aside.” Click here to read the judgement

IN THE HIGH COURT OF DELHI AT NEW DELHI 7th December 2021 Pronounced on: 23rd December 2021 Reserved on : CRL.A. 226 2007 RAM BAX ..... Appellant Accused Through: Mr. Anuj Kapoor alongwith Appellant Accused. THE STATE OF NCT DLEHI Respondent Through: Mr. Panna Lal Sharma APP with SI Narasi Prasad Meena P.S. New Friends Colony HON’BLE MR. JUSTICE CHANDRA DHARI SINGH JUDGMENT CHANDRA DHARI SINGH J. The instant Criminal Appeal under Section 374 of Code of Criminal Procedure 1973 is filed against the impugned judgment dated 18th July 2006 and order on sentence dated 20th July 2006 passed by the learned Additional Sessions Judge New Delhi wherein the Appellant Accused is convicted for the offence punishable under Section 376 of the Indian Penal Code 1860and he was sentenced to undergo eight years of Rigorous Imprisonment and to pay a fine of Rs.1 000 . In default of payment of fine the Appellant Accused is to further undergo Simple Imprisonment for one month. Case No. CRL.A. 226 2007 FACTUAL MATRIX The brief facts and circumstances giving rise to this case are that: i. The Prosecutrix Complainant made a complaint in the Police Station Jamia Nagar New Delhi upon which FIR bearing No. 425 of 2004 dated 06th September 2004 under Sections 376 506 IPC was registered. ii. Prosecutrix Complainant used along with Appellant Accused her mother Suman and younger step brother Raju at Gaffar Manzil adjoining to plot B 29. It is alleged that on 14th July 2004 at about 5 A.M. in the morning the Prosecutrix Complainant was called by the Appellant Accused room. The Appellant Accused Prosecutrix Complainant to massage his head as he was having some pain in his head. When the Prosecutrix Complainant entered inside the room she saw the Appellant Accused standing naked. It is alleged that the Appellant Accused committed rape on her. When Prosecutrix Complainant raise alarm Appellant Accused gagged her mouth. It is further alleged that thereafter the Appellant Accused continued to commit rape on her. v. On 6th September 2004 about 12:30 P.M. Prosecutrix Complainant. The Prosecutrix Complainant filed a complaint with the Police on the same day. On the basis of said compliant F.I.R. No. 425 2004 was registered at Police Station New Friends Colony under Sections 376 506 of I.P.C. Thereafter Case No. CRL.A. 226 2007 the Appellant Accused was arrested by the Police on 07th September 2004. vi. Statement of the witnesses were recorded under Section 161 of Cr.P.C. After the completion of investigation charge sheet was prepared and submitted in the Court of Metropolitan Magistrate concerned. The case was committed to sessions and a charge under Section 376 IPC was framed by the Trial Court. vii. The prosecution examined PW 1 Lady Constable Anju PW 2 HC Prithvi Raj PW 3 Dr. Minakshi Sharma PW 4 Savita Sharma PW 5 HC Prakash Chander PW 6 Ms. Illa Rawat PW 7 Naresh PW 8 Prosecutrix Complainant “X” PW 9 ASI Rajender and PW 10 HC Ranga Rao to prove its case. The statement of the Appellant Accused was recorded under Section 313 of Cr.P.C. The Appellant Accused denied his involvement in the commission of the offence. The plea of the Appellant Accused was that he has been falsely implicated in the case. The Prosecutrix Complainant is his step daughter who was having an affair with a boy namely Amir. It is further stated in the statement of the Appellant Accused under Section 313 of Cr.P.C that the area where he resided was dominated by Muslims and some local Muslim influential persons supported the said boy and on the influence of the local persons and Amir Prosecutrix Complainant has falsely implicated him. The Appellant Accused also denied the fact that he raped the Prosecutrix Complainant but he has not led any evidence in his defence. Case No. CRL.A. 226 2007 x. The Sessions Court relied upon the evidence led by the prosecution to record the finding that the Appellant Accused being a step father of the victim committed an offence of rape upon her. It held that the Appellant Accused did not give any plausible explanation to the incriminating circumstances appearing against him in the statement recorded under Section 313 of Cr.P.C. He did not examine any witness in defence to falsify the statements of the Prosecutrix Complainant. xi. The Sessions Court further held that the testimony of the Prosecutrix Complainant herself was sufficient to prove the guilt of the Appellant Accused. It held that the sexual assault had been proved and the prosecution had established its case beyond reasonable doubt that the Appellant Accused committed rape on the Prosecutrix Complainant during her stay with him. It also held that conviction in the case of offence punishable under Section 376 of Cr.P.C can be based on Prosecutrix Complainant. Thereby vide judgment dated 18th July 2006 and order on sentence dated 20th July 2006 the Learned testimony of the sole Additional Sessions Judge New Delhi Accused Appellant for commission of the offence punishable under Section 376 of I.P.C and sentenced to suffer eight years of Rigorous Imprisonment and to pay a fine of Rs.1 000 . In default of payment of fine the Appellant Accused is to further undergo Simple Imprisonment for one month. Case No. CRL.A. 226 2007 xii. Hence the instant criminal appeal has been filed by the Appellant Accused challenging the judgment dated 18th July 2006 and order on sentence dated 20th July 2006. 3. Mr. Anuj Kapoor learned counsel appearing for the Delhi High Court Legal Services Committee submitted Prosecutrix Complainant as PW 8 cannot be relied upon because there have been material contradictions in her depositions. It is further submitted that the admitted facts in light of which her testimony is to be examined for its inherent credibility are: i. A family of four members was living in a one room house and the Prosecutrix Complainant was being allegedly raped continuously by the Appellant Accused in the same house where other two persons i.e. mother and step brother were residing. ii. Prosecutrix Complainant Appellant Accused since her childhood. There was delay in the lodging the FIR as the first instance of the alleged rape was of 14th July 2004 and the FIR was lodged on 06th September 2004. The learned counsel appearing on behalf of the Appellant Accused submitted that the Prosecutrix Complainant’s testimony is conspicuously silent on the facts that the FIR and statements under Section 161 and 164 have no details about where what time and under what circumstances the Appellant Accused would have allegedly the Prosecutrix Complainant repeatedly from 14th July 2004 to 06th September 2004. It is also not stated or explained anywhere as to how the Appellant Accused Case No. CRL.A. 226 2007 would ensure absence of his wife Prosecutrix Complainant’s mother during such alleged transgressions. It is also submitted by the learned counsel appearing on behalf of the Appellant Accused that Prosecutrix Complainant had been confronted on large number of issues facts with her statement under Section 161 of Cr.P.C. The improvements had been of such a large magnitude that her statement itself became unreliable. It is further submitted that the Prosecutrix Complainant had a relationship with one local boy i.e. Amir and later on she got married to him. It is further submitted that the key witnesses i.e. the mother and the step brother of the Prosecutrix Complainant were not even examined. Therefore the statement of the Prosecutrix Complainant before the Trial Court has not been corroborated to the extent that she had informed her mother about the continuous rape committed by her step father and that the step father allegedly raped her by sending her step brother outside the house. It is also submitted by the learned counsel appearing on behalf of the Appellant Accused that the neighbours and others persons who allegedly warned the Appellant Accused to keep his behavior good towards Prosecutrix Complainant were also not examined. It is further the credibility of the prosecution’s story further diminished when it is observed that none of the persons which were mentioned by the Prosecutrix Complainant in her statement under Section 164 of Cr.P.C. were examined. It is also submitted that the Prosecutrix Complainant has categorically stated in her statement under Section 164 of Cr. PC and before the Trial Court that she informed about the incident Case No. CRL.A. 226 2007 to one aunt who was her neighbour one uncle Firoz Islam her mother Rafiq Uncle Santosh Mama and Shafeeq. Such a long sequence of persons who have allegedly been informed about the alleged repeated the Appellant Accused Prosecutrix Complainant were not examined by the prosecution to corroborate the statement of the Prosecutrix Complainant. It is submitted that a person Shafeeq who is said to have called the persons from National Commission for Women was also not examined as witness by the prosecution. Even the Investigating Officer was not examined. Non examination of these witnesses and the material contradictions in the statements of the Prosecutrix Complainant leaves no doubt that the Appellant Accused has been falsely implicated in the present case by the Prosecutrix Complainant as he was one of the persons who did not like her affair with the neighbour boy who belongs to another faith religion. Therefore it cannot be denied that the instant criminal case was initiated in the influence of the said boy. It is further submitted that the mere perfunctory reiteration by the Prosecutrix Complainant of her version in her statements under Section 161 and 164 of Cr.P.C. and the statements given in her examination in chief and cross examination before the Trial court could not have been enough to convict the Appellant Accused especially when it was extremely improbable inherently weak and no corroboration in any manner whatsoever. Learned counsel appearing on behalf of the petitioner further is an admitted fact and not denied by 7. Case No. CRL.A. 226 2007 Prosecutrix Complainant that she had an affair with one local boy i.e. Amir. As per the medical report there were no sign of injury on her private part. It is stated that her hymen was torn and she was not virgin at the time of medical tests. She was habitual to sexual intercourse. It is to be appreciated in light of the facts that the Prosecutrix Complainant admitted during her evidence recorded on 27th January 2006 that she had been married to Amir with whom she was in relationship. 9. As per the FSL and Serological report it cannot be treated as an incriminatory piece of evidence as they did not find the Appellant Accused’s semen on the Prosecutrix Complainant’s clothes. Human semen was nevertheless detected. Learned counsel appearing on behalf of the Appellant Accused submitted that the Trial Court has not considered the aforesaid aspects while passing the impugned order. The impugned order passed by the Court below has been passed in mechanical way without application of judicial mind and proper appreciations of the record. Learned Appellant Accused has already under gone more than 4 ½ years in custody. The incident took place in the year 2004 i.e. more than 17 years back. It is vehemently submitted that in view of the above facts and circumstances the conviction of the Appellant Accused has to be set aside and the criminal appeal deserved to be allowed. 10. Per contra Mr. Panna Lal Sharma learned APP appearing on behalf of the State has vehemently opposed the criminal appeal and contended that the Appellant Accused has been rightly convicted on the sole testimony of the Prosecutrix Complainant and the Court below has Case No. CRL.A. 226 2007 appreciated the facts in the correct perspective. The findings so recorded by the Court below do not require any interference thus the appeal is liable to be dismissed. ANALYSIS AND FINDINGS 11. I have considered the rival submissions made by the learned counsel for the parties and perused the record. 12. The Trial Court recorded conviction of the Appellant Accused merely by placing very heavy reliance upon the deposition of the Prosecutrix Complainant. Advertently the defence was taken by the Appellant Accused in his statement under Section 313 of Cr. PC that the Prosecutrix Complainant had developed her relationship with one boy namely Amir and the Appellant Accused did not like her relationship with the said boy as he has raised the Prosecutrix Complainant as his own daughter since her childhood. The Appellant Accused tried to stop her daughter i.e. Prosecutrix Complainant from meeting the said boy but she did not like the way in which she was stopped. It is also stated in the statement under Section 313 of Cr.P.C. given by the Appellant Accused that by virtue of influence by the said boy and others influential persons of the area who belong to another religion the Prosecutrix Complainant has made Appellant Accused. The same facts and circumstances have not been referred or appreciated by the Trial Court while passing the impugned judgment and order on sentence even though the law requires the Court to appreciate the defense version and decide its veracity in accordance with law. Case No. CRL.A. 226 2007 In order the veracity of the depositions of Prosecutrix Complainantit may be relevant to make reference to her examination in chief in which she stated as under: “The accused … On 14.07.04 the accused now present before the court today called at about 5 am in his room to press his head. When I went inside the room I saw the accused standing naked. Thereafter the accused put off my pajama after calling me inside the room. The accused attempted to commit rape with me forcibly. I started raising alarm. However the accused gagged my mouth. Thereafter someone called from outside and the accused left the room. I disclosed the incident to my mother. When my mother objected to the accused he gave beatings to her. Thereafter the accused continued to have sexual relations rape with me once or twice in a week without my consent ” 14. The reference of the cross examination of Prosecutrix Complainant is stated as under: “I remember the date 14th of July as I was raped on that day. I remember the date for today. It is 27th of January 2006. On 14th July I was raped by the accused when he had called me to press his head at about 5 am.The Prosecutrix Complainant step daughter of Appellant Accused and she was raised as a daughter since childhood by the Appellant Accused. ii) The Prosecutrix Complainant had a love affair with one boy Amir and later on she got married to that same boy. iii) There are several contradictions in the statements of the Prosecutrix Complainant and also as per the medical report no firm opinion had been given by the Doctor that rape was committed. Therefore the medical evidence does not positively support the case of the prosecution. iv) As per the FSL report the semen of the Appellant Accused was also not found on the clothes of the Prosecutrix Complainant. Therefore the FSL report does not positively support the case of the prosecution. It is a settled legal proposition that once the statement of the Prosecutrix Complainant inspires confidence and is accepted by the Court as such conviction can be made based only on the sole evidence of the Prosecutrix Complainant and no corroboration would be required unless there are compelling reasons which necessitate the Court corroboration of her statement. Corroboration of the testimony of the Prosecutrix Complainant as the condition for judicial reliance is not requirement of law but a guidance of prudence under the given facts and Case No. CRL.A. 226 2007 circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. 23. The testimony of Prosecutrix Complainant has to be appreciated on the principle of probabilities just as the testimony of any other witness. However if the court finds it difficult to accept the version of the prosecutrix on its face value it may search for evidence direct or substantial which may lend assurance to her testimony. In Vimal Suresh Kamble v. Chaluverapinake Apal S.P.3 SCC 175 the Hon’ble Supreme Court has held as under: testimony of the prosecutrix alone “21. On an overall appreciation of the evidence of the prosecutrix and her conduct we have come to the conclusion that PW 1 is not a reliable witness. We therefore concur with the view of the High Court that a conviction cannot be safely based upon the evidence of the prosecutrix alone. It is no doubt true that in law the conviction of an accused on the basis of permissible but that is in a case where the evidence of the prosecutrix inspires confidence and appears to be natural and truthful. The evidence of the prosecutrix in this case is not of such quality and there is no other evidence on record which may even short of corroboration that she is making a truthful statement. We therefore find no reason to disagree with the finding of the High Court in an appeal against acquittal. The view taken by the High Court is a possible reasonable view of the evidence on record and therefore warrants no interference. This appeal is dismissed.” some assurance In Suresh N. Bhusare v. State of Maharashtra1 SCC 220 the Hon’ble Supreme Court has held that where evidence of the Case No. CRL.A. 226 2007 prosecutrix is found suffering from serious infirmities and inconsistencies with other material the prosecutrix making deliberate improvement on material point with a view to rule out consent on her part and there being no injury on her person even though her version may be otherwise no reliance can be placed upon her evidence. In Jai Krishna Mandal v. State of Jharkhand14 SCC 534 the Hon’ble Supreme Court while dealing with the aforesaid issue held as “4. … the only evidence of rape was the statement of the prosecutrix herself and when this evidence was read in its totality the story projected by the prosecutrix was so improbable that it could not be believed. 7. We find this statement to be contrary to the statement of the lady doctor who deposed that she had taken the saree from the prosecutrix and handed it over to the investigating officer. The doctor also does not support the prosecution story. She stated that there was no evidence of rape no injury on her person and that she was a “multi persons lady”. We are unable to comprehend what exactly this term means and in the context that it had been used we assume that she was a lady having regular sexual intercourse with several persons. 8. We also find that as per the prosecution story the appellants were missing from the village on the date that the prosecutrix also disappeared that is 7 2 1999 and though they came back to the village on 11 2 1999 the FIR had been recorded after three days although they had been interrogated by the investigating officer on 11 2 1999 itself. The very fact that the investigating officer has not been examined also causes prejudice to the appellants. As per the Case No. CRL.A. 226 2007 doctor s evidence the petticoat and saree had been handed over to the IO. These articles were not sent for examination nor even produced in evidence.” In the case of Johny @ John David Sheri v. The State of Maharashtra 2018 SCC OnLine Bom 981 the Hon’ble High Court of Bombay has observed that non examination of the mother when the testimony of prosecutrix suffers from infirmities becomes an important factor to cipher the suspicion. The relevant paragraph has been reproduced as under: to cast shadow of doubts on “14. It is well settled that when the available evidence against the accused suffers from infirmities and is doubtful then non examination of the material witness becomes an prosecution case. In the case in hand the prosecutrix has initially disclosed the incident to her mother. As per the prosecution case and version of the prosecutrix it was her mother who had insisted her to lodge report against her father. That is how the prosecutrix went to P.W. No. 2 Manda Alfred Sheri. The first version of the incident was heard by the mother of the prosecutrix from her. Therefore mother of the prosecutrix was an important witness in this case. No reason can be gathered from the Record and Proceedings as to why the mother of the prosecutrix is not examined by from not cross the prosecution apart examining the prosecutrix by declaring her as hostile.” In Raju v. State of M.P.15 SCC 133 the Hon’ble Supreme Court has held as under: “10.… that ordinarily the evidence of a prosecutrix should not be suspected and should be believed more so as her statement has to be evaluated on a par with that of an Case No. CRL.A. 226 2007 injured witness and if the evidence is reliable no corroboration is necessary. “11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication … there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.” In Tameezuddin v. State (2009) 15 SCC 566 the Hon’ble Supreme Court held as under: “9. It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration but to hold that this evidence has to be accepted even if the story is improbable and belies logic would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter.” In the case of Manoharlal v. State of Madhya Pradesh15 SCC 587 the Hon’ble Supreme Court has observed that in cases where any parent or brother has not been examined to corroborate the version of the Complainant the court cannot rely upon the sole testimony of the Complainant and shall grant the appellant benefit of doubt. The relevant paragraph has been reproduced as under: “9. Having found it difficult to accept her testimony on its face value we searched for support from other material but find complete lack of corroboration on material particulars. Firstly the medical examination of the victim did not result in any definite opinion that she was subjected to rape. Case No. CRL.A. 226 2007 Secondly Riyaz who was like a brother to the victim and thus a close confidant has not supported the case of the prosecution and has completely denied having met her when she allegedly narrated the incident to him. Thirdly the person who was suffering from fever and to whose house she was first taken by the appellant was not examined at all. Fourthly the policeman who the victim met during the night was also not examined. Fifthly neither the brother nor any of the parents of the victim were examined to corroborate the version that she had come from the village of her brother and alighted around 10.00 p.m. at Bajna Bus Stand. Lastly the sequence of events as narrated would show that she had allegedly accompanied the appellant to various places. In the circumstances we find extreme difficulty in relying upon the version of the victim alone to bring home the charge against the appellant. We are inclined to give benefit of doubt to the appellant. “10. We therefore set aside the order of conviction and sentence passed against the appellant. The present appeal is thus allowed and the appellant is acquitted of the charge levelled against him. The appellant who was released on bail is discharged of his bail bonds.” In the case of Hirianna Shetty v. the State of Mysore 1971 SCC Online Kar 267 the Hon’ble Supreme Court has held that non examination of the Investigating Officer is a serious infirmity resulting in prejudice to the accused. The relevant paragraph has been reproduced as is clear the above decisions “10. It examination of the Investigating Officer is necessary in order to bring on record the contradictions in the Statement of witnesses and that such a right is a valuable right of the accused. Further it is clear that non examination of the Case No. CRL.A. 226 2007 Investigating Officer is a serious infirmity in the prosecution case in so far as it deprived the accused of the opportunity to show to the Court that witnesses were not reliable witnesses by proving contradictions in the earlier statement. Thus Investigating Officer in the case is a serious infirmity resulting in prejudice to the accused and therefore the conviction and sentence passed against him are liable to be set aside.” the non examination of in my opinion In the case of Dharmendra v. The State of Maharashtra Criminal Appeal No. 1717 the Hon’ble High Court of Judicature at Bombay Nagpur Bench vide Judgment dated 8th January 2018 had discussed whether the tearing of hymen will amount to sexual assault on the victim to which the Hon’ble Court had stated as under: “14. No doubt the medical report suggests that hymen of the victim was torn and that sexual assault had occurred. The victim was aged seven years. PW 8 Dr. Jaya states that it cannot be stated whether the injuries were painful or not at the time of examining the victim. She states that there may be other reasons for hymen tearing and tearing of hymen is possible if a child is involved in the sports activities. She states that tearing of hymen is possible if a girl child is living in unhygienic condition and there is itching to her private part and if she scratches it by her own finger. She states in response to the query that the minor girl of seven years is capable of sexual intercourse. In view of this it is not possible to confirm the finding of the Sessions Court that there was a sexual assault on the victim. 15.In view of above we are of the view that the oral evidence of the witnesses relied upon by the Sessions Court is untrustworthy and not of credence to hold that the offence Case No. CRL.A. 226 2007 against the accused is established. Neither the oral evidence and the medical examination report by PW 8 Dr. Jaya nor the report of the Chemical Analyzer can be relied upon to hold that the accused committed sexual assault on the minor child. The evidence on record is short of connecting the accused with the crime alleged and the possibility of falsely implicating the accused cannot be ruled out. It is therefore not possible for us to sustain the findings appellant accused guilty of the offences charged and he is required to be acquitted for want of reliable evidence of committing an act of rape on the minor child being in relation as niece.” Sessions Court In the case of Sadashiv Ramrao Hadbe v. State of Maharashtra 2006) 10 SCC 92 the Hon’ble Supreme Court has held that in the cases where there are serious doubts regarding the sexual intercourse the benefit of doubt has been provided upon the accused. The Hon’ble Supreme court after analysing the facts of the case held as under: “….10. In the present case there were so many persons in the clinic and it is highly improbable that the appellant would have made a sexual assault on the patient who came for examination when large number of persons were present in the near vicinity. It is also highly improbable that the prosecutrix could not make any noise or get out of the room without being assaulted by the doctor as she was an able bodied person of 20 years of age with ordinary physique. The absence of injuries on the body improbabilise the prosecution version. 13. The Sessions Court as well as the High Court had not taken into consideration the absence of spermatozoa in the Case No. CRL.A. 226 2007 vaginal swab of the prosecutrix. It may also be noticed in the FI statement. In this case the prosecutrix had not given the full description of the incident allegedly taken place but when she was examined in court she had improved her 14. On a consideration of the entire evidence in this case we are of the view that there is a serious doubt regarding the sexual intercourse allegedly committed by the appellant on the prosecutrix. The appellant is entitled to the benefit of those doubts and we are of the view that the High Court and the Sessions Court erred in finding the appellant guilty. We set aside the conviction and sentence of the appellant….” 34. The Courts while trying an accused on the charge of rape must deal with the case with utmost sensitivity examining the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the evidence of the witnesses which are not of a substantial character. 35. However even in a case of rape the onus is always on the prosecution to prove affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is not the duty of the defense to explain as to how and why in a rape case the victim and other witnesses have falsely implicated the accused. The prosecution case has to stand on its own legs and cannot take support from the weakness of the case of 36. It is settled law that unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record he cannot be convicted for an offence. There is an initial Case No. CRL.A. 226 2007 presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt. 37. The Hon’ble Supreme Court in Tukaram v. State Maharashtra2 SCC 143 has held as under: “16. Secondly it has to be borne in mind that the onus is always on the prosecution to prove affirmatively each ingredient of the offence it seeks to establish and that such onus never shifts. It was therefore incumbent on it to make out that all the ingredients of Section 375 of the Penal Code 1860 were present in the case of the sexual intercourse….” 38. In Uday v. State of Karnataka4 SCC 46 the Hon’ble Supreme Court has held as under: “21. It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view but we must add that there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary or whether it is given under a misconception of fact. In the ultimate analysis the tests laid down by the courts provide at best guidance to the judicial mind while considering a question of consent but the court must in each case consider the evidence before it and the surrounding circumstances before reaching a conclusion because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary or was given under a misconception Case No. CRL.A. 226 2007 of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence absence of consent being one of them.” 39. The Hon’ble Supreme Court settled the law that the prosecution has to prove its case beyond reasonable doubt and cannot take support from the weakness of the case of defense. There must be proper legal evidence and material on record to convict the accused. The conviction can be based on sole testimony of the prosecutrix provided it lends assurance of her testimony. However in case the court has reason not to accept the version of the prosecutrix on its face value it may look for corroboration. In case the evidence is read in its totality and the story projected by the prosecutrix is found to be improbable the prosecutrix s case becomes liable to be rejected. 40. The instant case is required to be decided in the light of the aforesaid settled legal propositions. This Court is of the view that the given facts and circumstances make it crystal clear that if the evidence of the prosecutrix is read and considered in totality of the circumstances along with other evidence on record in which the offence is alleged to have been committed her deposition does not inspire confidence. The prosecution has not disclosed the true genesis of the crime. In such a fact situation the appellant becomes entitled to the benefit of doubt. 41. In view of the above the present appeal succeeded and is allowed. Case No. CRL.A. 226 2007 42. The impugned judgment dated 18th July 2006 and order on sentence dated 20th July 2006 passed by the learned Additional Sessions Judge New Delhi wherein the Appellant Accused was convicted for the offence punishable under Section 376 of the Indian Penal Code 1860 is set aside. The Appellant Accused is on bail. His bail bonds stands 43. Before parting from the case I would like to record my appreciation for Mr. Anuj Kapoor learned counsel appearing on behalf of Delhi High Court legal Services Committee for rendering commendable assistance to the Court. 44. Pending application if any also stands disposed of. 45. The judgment be uploaded on the website forthwith. CHANDRA DHARI SINGH) December 23 2021 Case No. CRL.A. 226 2007

Successive writs after failing to get interim relief in earlier writs is not allowed: Jammu & Kashmir High Court

Filing successive writ petitions for the same relief after failing to get interim relief in earlier writ petition is not allowed. Writ petitions are provided as a remedy; filing multiple writs claiming same relief shall not be encouraged and heavy cost could be imposed as a penalty in such cases. This practice was deprecated by the Jammu and Kashmir High Court presided by J. Sanjay Dhar and J. Puneet Gupta in the case of Mubashir Ashraf Bhat vs. Union Territory of Jammu & Kashmir and othrs. [WP(C) No.379/2020] and [WP(C) No.1216/2020]. In the instant case, Community Based Medical College, Bangladesh issued admission offer in favour of the petitioner, on the basis of which education loan in the amount of Rs.30.00 lac was sanctioned by the respondent Corporation in favour of petitioner for pursing MBBS. There was a delay in the sanctioning of loan against which the petitioner filed the first writ petition. The first installment of loan was released by the respondent but the College authorities refused to admit her, as a consequence whereof, the petitioner approached M/S Khwaja Younus Ali Medical College, Bangladesh through her consultancy service and secured her admission in the said College. The first installment amount which was released by the respondent in favour of Community Based Medical College, Bangladesh was transferred to Khwaja Younus Ali Medical College, Bangladesh. According to the respondent, the transfer of amount was made without information to it and therefore the request of the petitioner for the release of second installment could not be accepted. Hence, the petitioner filed the second writ. The court held, “Ordinarily, the remedy available for a party complaining of breach of contract lies for seeking damages or for enforcing specific performance of terms of the contract in a Civil Court. It is only in cases where a Public Authority has acted arbitrarily or unreasonably or with malafide intention that the Writ Court would step in. The action of the respondent-Corporation in not releasing the second installment of loan in favour of the petitioner appears to be justified and the same cannot be termed either arbitrary or malafide.”

HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR WP1216 2020 CM No.3055 2020 c w WP(C) 379 2020 CM 745 2020 Reserved on : 12.01.2021 Pronounced on: 19 .01.2021 Mubashir Ashraf Bhat ...Petitioner(s) Through: Mr. M. Ayoub Bhat Advocate. Union Territory of Jammu and Kashmir and others ..Respondent(s) Through: Mr. Sheikh Feroz Dy.AG Coram: HON’BLE MR. JUSTICE SANJAY DHAR JUDGE By this common judgment the above noted two writ petitions are proposed to be disposed of. Through the medium of writ petition bearing WP(C) No.379 2020 the petitioner has sought a direction against the respondents for release of all the installments of fee in her favour and transfer the same to M S Khwaja Younus Ali Medical College Bangladesh so that she is able to pursue her MBBS course. Further a Writ of Certiorari for quashing of order letter communication dated 31.01.2020 has also been sought. 2 WP1216 2020 c w WP(C) 379 2020 During the pendency of aforesaid writ petition a writ petition bearing WP(C) No. 1216 2020 came to be filed seeking a direction to the respondents to release the instalments of education loan as per the breakup given in the letter of sanction dated 24.12.2018 with a further direction to release the instalments of loan to M S Khwaja Younus Ali Medical College Bangladesh. The controversy involved in both the aforesaid writ petitions is with regard to release of education loan stated to have been sanctioned in favour of the petitioner by respondent Nos.3 and 4. In fact the relief sought in both the writ petitions is identical in nature therefore this Court is of the opinion that there was no necessity for the petitioner a to file the second writ petition for the relief which was already subject matter of the first writ 5 Be that as it may the facts giving rise to filing of aforesaid writ petitions are that the petitioner had approached the Jammu and Kashmir Women’s Development Corporation under the Scheme floated by National Minorities Development and Finance Corporation for pursing MBBS course in the Community Based Medical College Bangladesh. The aforesaid College issued admission offer letter dt.03.09.2018 in favour of the petitioner on the basis of which education loan in the amount of Rs.30.00 lac was sanctioned by the respondent Corporation in favour of petitioner for pursing MBBS course in the aforesaid College. In this regard sanction letter dated 24.12.2018 was issued by the respondent Corporation after verifying the antecedents of the 3 WP1216 2020 c w WP(C) 379 2020 petitioner and upon execution of a Mortgage Deed by the father of petitioner in favour of the respondent Corporation. According to the petitioner there was delay on the part of the respondent Corporation to sanction the loan as such the first installment of loan could not be released in favour of the aforesaid College by 20.11.2018 the last date stipulated for deposition of the fee. It is the case of the petitioner that the first installment of loan was released by the respondent Corporation only on 24.02.2019 but the College authorities refused to admit her as a consequence whereof the petitioner approached M S Khwaja Younus Ali Medical College Bangladesh through her consultancy service and secured her admission in the said College. Thereafter the first installment of fee that had been transferred by the respondent Corporation the Community Based Medical College Bangladesh was in turn transferred to M S Khwaja Younus Ali Medical College Bangladesh. It is contended by the petitioner that the information regarding the change in College was conveyed by her to the respondent Corporation but without going into reasons therefor the Corporation issued letter dated 31.01.2020 directing the petitioner to repay the amount of loan which had been released in her favour. This prompted the petitioner to file Writ petition bearing WP(C)No. 379 2020. 8 It is the further case of petitioner that she has completed her first year of MBBS course in M S Khwaja Younus Ali Medical College Bangladesh and she is now pursing her second year of MBSS Course in the said College. According to the petitioner the College authorities have issued a notice to her for depositing the second year fee before appearing in 4 WP1216 2020 c w WP(C) 379 2020 the examination and when she approached the respondent Corporation for release of second installment the respondent Corporation refused to do so. According to the petitioner the action of the respondent Corporation in this regard is unreasonable and without any justification and that the said action of the Corporation has put her career at risk which has compelled her to file the second writ petition bearing WP(C) No.1216 2020. The respondent Corporation has resisted both the writ petitions by filing objections thereto. In their objections the respondent Corporation has contended that the petitioner has raised disputed questions of fact which cannot be gone into and determined in the writ jurisdiction. On merits the respondent Corporation has submitted that on 30.12.2019 the father of the petitioner approached the Corporation stating that the first installment of loan that was released by the Corporation in favour of Community Based Medical College Bangladesh has been transferred to Khwaja Younus Ali Medical College Bangladesh as the petitioner could not secure a seat for herself in the Community Based Medical College. It was further requested by father of the petitioner that the second installment of loan be released in favour of Khwaja Younis Ali Medical College. According to the respondent Corporation the transfer of amount was made without information to it and as such the request of the petitioner could not be accepted. It is the case of respondent Corporation that the loan was sanctioned by the Corporation in favour of petitioner for her admission to five years MBBS course at Community Based Medical College Bangladesh and not for her admission to M S Khwaja Younus Ali Medical College as such the Corporation cannot release the loan in favour of petitioner the same being against the terms and conditions of the sanction. 5 WP1216 2020 c w WP(C) 379 2020 It is contended that the application form for grant of education loan filled up by the petitioner was duly authenticated by the Community Based Medical College Bangladesh and structure and schedule of fee payable to the said college was also forwarded by the college. It is further contended that the act of petitioner to get back the first installment of fee from the aforesaid College and transfer the same on her own to Khwaja Younus Ali Medical College Bangladesh virtually amounts to a fraud as the same has been done without the consent of the Corporation. On the basis of these assertions the respondent Corporation has sought dismissal of both the writ petitions. both the writ petitions. I have heard learned counsel for the parties and perused the record of The short question involved in this case is whether in these proceedings the petitioner can seek a direction upon the respondent Corporation to release the loan amount sanctioned in her favour to a College different from the one mentioned in the sanction letter. Before determining this question it has to be borne in mind that the sanction and release of loan amount by a Financial Institution in favour of a borrower is purely a contractual matter governed by the terms and conditions of the loan agreement. Thus in the instant case transaction pertaining to release of loan amount by the Corporation in favour of petitioner is governed by the terms and conditions of the sanction letter and the Mortgage Deed executed by the father of petitioner in favour of the Corporation. Therefore this Court has to approach the matter by keeping in mind the principles governing the scope of writ jurisdiction in contractual matters. 6 WP1216 2020 c w WP(C) 379 2020 In Noble Resources Limited vs. State of Orissa and another 2006 10) SCC 236 the question as to whether a writ petition was maintainable in contractual matters and if so what is the scope of jurisdiction of the Court in such matters the Supreme Court observed as under: “It is trite that if an action on the part of the State is violative of the equality clause contained in Article 14 of the Constitution of India a writ petition would be maintainable even in the contractual field. A distinction indisputably must be made between a matter which is at the threshold of a contract and a breach of contract whereas in the former the court s scrutiny would be more intrusive in the latter the court may not ordinarily exercise its discretionary jurisdiction of judicial review unless it is found to be violative of Article 14 of the Constitution. While exercising contractual powers also the government bodies may be subjected to judicial review in order to prevent arbitrariness or favouritism on its part. Indisputably inherent limitations exist but it would not be correct to opine that under no circumstances a writ will lie only because it involves a contractual matter. This dicta of law was laid down by this Court as far back in1977 wherein this Court in Radhakrishna Agarwal and Others v. State of Bihar and Others3 SCC 457] accepted the division of types of cases made by the Patna High Court in which breaches of alleged obligation by the State or its agents could be set up. It reads as under : i) Where a petitioner makes a grievance of breach of promise on the part of the State in cases where on assurance or promise made by the State he has acted to his prejudice and predicament but the agreement is short of a contract within the meaning of Article 299 of the Constitution 7 WP1216 2020 c w WP(C) 379 2020 ii) Where the contract entered into between the person aggrieved and the State is in exercise of a statutory power under certain Act or Rules framed thereunder and the petitioner alleges a breach on the part of the State and iii) Where the contract entered into between the State and the person aggrieved is non statutory and purely contractual and the rights and liabilities of the parties are governed by the terms of the contract and the petitioner complains about breach of such contract by the State." It was further observed : In the cases before us allegations on which a violation of Article 14 could be based are neither properly made nor established. Before any adjudication on the question whether Article 14 of the Constitution could possibly be said to have been violated as between persons governed by similar contracts they must be properly put in issue and established. Even if the appellants could be said to have raised any aspect of Article 14 of the Constitution and this Article could at all be held to operate within the contractual field whenever the State enters into such contracts which we gravely doubt such questions of fact do not appear to have been argued before the High Court. And in any event they are of such a nature that they cannot be satisfactorily decided without a detailed adduction of evidence which is only possible in ordinary civil suits to establish that the State acting in its executive capacity through its officers has discriminated between parties identically situated. On the allegations and affidavit evidence before us we cannot reach such a conclusion. Moreover as we have already indicated earlier the correct view is that it is the contract and not the executive power regulated by the Constitution which governs the relations of the parties on facts apparent in the cases before us." 8 WP1216 2020 c w WP(C) 379 2020 It may however be true that where serious disputed questions of fact are raised requiring appreciation of evidence and thus for determination thereof examination of witnesses would be necessary it may not be convenient to decide the dispute in a proceeding under Article 226 of the Constitution of India”. It is pertinent to mention here the Supreme Court in Radhakrishna Aggarwal’s casewhile dealing with cases of typementioned above categorically observed that no writ or order can be issued under Article 226 of the Constitution in such cases to compel the authorities to remedy a breach of contact pure and simple. 14 Similarly in Kisan Sehkari Chini Mills Ltd vs. Vardan Linkers 12 SCC 500 the Supreme Court held as follows: “If the dispute was considered as purely one relating to existence of an agreement that is whether there was a concluded contract and whether the cancellation and consequential non supply amounted to breach of such contract the first respondent ought to have approached the Civil Court for damages. On the other hand when a writ petition was filed in regard to the said contractual dispute the issue was whether the Secretaryhad acted arbitrarily or unreasonably in staying the operation of the allotment letter dated 26.3.2004 or subsequently cancelling allotment letter. In a civil suit the emphasis is on the contractual right. In a writ petition the focus shifts to the exercise of power by the authority that is whether the order of cancellation dated 24.4.2004 passed by the Secretarywas arbitrary or unreasonable. The issue whether there was a concluded contract and breach thereof becomes secondary. In exercising writ jurisdiction if the High Court found that the exercise of power in passing an order of cancellation was not arbitrary and unreasonable it should normally desist from 9 WP1216 2020 c w WP(C) 379 2020 giving any finding on disputed or complicated questions of fact as to whether there was a contract and relegate the petitioner to the remedy of a civil suit.” The Court further went on to observe as under: Even in cases where the High Court finds that there is a valid contract if the impugned administrative action by which the contract is cancelled is not unreasonable or arbitrary it should still refuse to interfere with the same leaving the aggrieved party to work out his remedies in a Civil Court. In other words when there is a contractual dispute with a public law element and a party chooses the public law remedy by way of a writ petition instead of a private law remedy of a suit he will not get a full fledged adjudication of his contractual rights but only a judicial review of administrative action. The question whether there was a contract and whether there was a breach may however be examined incidentally while considering the reasonableness of the administrative action. But where the question whether there was a contract is seriously disputed the High Court cannot assume that there was a valid contract and on that basis examine the validity of the administrative action”. The Supreme Court in Rishi Kiran Logistics Private Limited vs. Board of Trustees of Kandla Port Trust and ors 13 SCC 233 has further observed as under: “Ordinarily the remedy available for a party complaining of breach of contract lies for seeking damages. He would be entitled to the relief of specific performance if the contract was capable of being specifically enforced in law. The remedies for a breach of contract being purely in the realm of contract are dealt with by civil courts. The public law remedy by way of a writ petition under Article 226 of the Constitution is not available to seek damages for breach of 10 WP1216 2020 c w WP(C) 379 2020 contract or specific performance of contract. However where the contractual dispute has a public law element the power of judicial review under Article 226 may be invoked.” The Court further went on to conclude as under: “It thus stands crystalised that by way of writ petition under Article 226 of the Constitution only public law remedy can be invoked. As far as contractual dispute is concerned that is outside the power of judicial review under Article 226 with the sole exception in those cases where such a contractual dispute has a public law element”. From the foregoing discussion of law on the subject it is clear that Writ Court has a limited jurisdiction in contractual matters. Ordinarily the remedy available for a party complaining of breach of contract lies for seeking damages or for enforcing specific performance of terms of the contract in a Civil Court. It is only in cases where a Public Authority has acted arbitrarily or unreasonably or with malafide intention that the Writ Court would step in. 17 With the aforesaid legal position in mind let us now advert to the facts of the instant case. It is not in dispute that the education loan was sanctioned by the respondent Corporation in favour of the petitioner for getting her admission in the Community Based Medical College Bangladesh. The same is clearly spelt out in the sanction letter dated 24.12.2018. Even the Mortgage Deed executed by father of the petitioner in favour of respondent Corporation provides that the loan of Rs.30.00 lac has been sanctioned for completion of five years MBBS course at the Community Based Medical College Bangladesh. 18 A perusal of proforma of loan application for education loan which is uploaded on the website of Jammu and Kashmir Women’s Development 11 WP1216 2020 c w WP(C) 379 2020 Corporation shows that while processing the said application a certificate from the Principal Head of the Institute has to be obtained by a student certifying that the student has been selected for a course in the said Institute with a further certificate that the said Institute or Organization is a Government Government recognized Institute. This means that it is only upon the issuance of a certificate by the institute authenticating the fact that the loanee has been admitted to a particular course in the said institute and that the said institute is a government recognized institute that the loan is sanctioned by the Corporation. It appears from the terms of the sanction letter and the mortgage deed that the identity and credentials of the institution where the petitioner loanee proposed to undergo studies was an essential component of the transaction relating to the education loan. Obviously in the instant case the loan was sanctioned by the respondent Corporation on the condition that the petitioner had got admission in the Community Based Medical College Bangladesh. M S Khwaja Younus Ali Medical College Bangladesh was not in picture at all at the time of sanction of education loan in favour of the petitioner as such admittedly the loan was not sanctioned by the Corporation in favour of the petitioner for undergoing the course in the said College. That being the case the action of the respondent Corporation in not releasing the second installment of loan in favour of the petitioner appears to be justified and the same cannot be termed either arbitrary or malafide. In fact there are no allegations of malafides in the writ petitions against the respondent So far as the action of the respondent Corporation directing the petitioner to refund the first installment of loan amount is concerned the Corporation. 12 WP1216 2020 c w WP(C) 379 2020 same also appears to be justified because the petitioner admittedly had on her own transferred the first installment of loan from the Community Based Medical College Bangladesh to M S Khwaja Younis Ali Medical College Bangladesh without informing the respondent Corporation which is a breach of terms and conditions of the sanction letter. For the foregoing reasons I do not find any scope for this court particularly in exercise of its writ jurisdiction to interfere into the action of respondent Corporation in not releasing the instalments of loan in favour of the petitioner the same being purely a matter relating to contractual obligations of the parties. The issue whether there was any delay on the part of the respondent Corporation in sanctioning of loan in favour of petitioner which according to her resulted in cancellation of her admission in the Community Based Medical College Bangladesh is a disputed question of fact which cannot be gone into in these proceedings. It would be open for the petitioner to approach the Civil Court and agitate this aspect of the matter for obtaining appropriate relief against the respondent 21 In view of the aforesaid discussion both the writ petitions are dismissed. 22 Before parting this Court would like to deprecate the practice of filing successive writ petitions for the same relief after failing to get the interim relief in the earlier writ petition(s). The present case is a classic example of the same. The petitioner after having failed to get an interim order for release of loan instalment in earlier writ petition W.P No.379 2020 filed a second writ petition W.P.(C) No.1216 2020 for a similar relief. Ordinarily this Court would have imposed heavy costs upon 13 WP1216 2020 c w WP(C) 379 2020 the petitioner for resorting to this unhealthy practice but having regard to the fact that the petitioner is a student a lenient view of the matter is taken and the petitioner is warned to be careful in future in such matters. JUDGE This judgment is pronounced by me in terms of Rule 138of J&K High Court Rules 1999. PUNEET GUPTA) JUDGE Jammu 19.01.2021 Sanjeev PS Whether the order is speaking : Yes Whether the order is reportable :Yes SANJEEV KUMAR UPPAL2021.01.21 13:37I attest to the accuracy andintegrity of this document

Compassionate appointment can only take place immediately after death: High Court of Delhi

When a government servant dies, compassionate appointment of dependent of that government servant is only meant for immediate assistance and cannot be done after a considerable lapse of time. This was decided in the case of Gour Sarkar vs. The State of West Bengal & Ors [W.P.S.T. 63 of 2019] by double bench consisting of Hon’ble Justices Rajesh Bindal and Hon’ble Justice Aniruddha Rao in the High court of Calcutta. The facts of the case are that the petitioner is an Arts Graduate and the father who is now deceased was employed as a constable in the Office of the Superintendent of Police. The widow of the deceased made a representation requesting the State Authority that as and when the writ petitioner would become major, appointment on compassionate basis be granted to him. Upon attaining majority, the petitioner applied for compassionate appointment with all requisite documents before the State Authorities. He was then asked to give written test and after he performed well, he was called for physical fitness procedure and viva voce tests which he also qualified. However, after this there has been no communication. Aggrieved by the decision of rejection of compassionate appointment, he moved to the High court. The court observed that the issue falls for consideration before this Court is that, whether the writ petitioner is entitled for any compassionate appointment and or decision taken by the State employer rejecting the claim of the writ petitioner for compassionate appointment was just and lawful. The counsel for petitioner submitted that, the writ petitioner was fully eligible for appointment on compassionate basis. The writ petitioner had performed, well the state employer acknowledged the candidature of the writ petitioner for compassionate appointment and as such there was no good reason with the state employer to reject the claim of the writ petitioner is extremely necessary for survival of the family of the deceased and to meet their financial distress. Advocate for the state respondents at the threshold submitted that, there is no specific scheme provided for giving compassionate appointment in the facts and circumstances under which the writ petitioner seeks such appointment. The object behind compassionate appointment is to provide for immediate survival of the family of the deceased, who died in harness. In the instant case no such necessity was there in the family of the deceased immediately after his death and, therefore, the question of granting compassionate appointment to the writ petitioner after about 11 years of death of the employee concerned will not arise. The court relied on the case of Jagdish Prasad v. State of Bihar and Anr. [(1996) 1 SCC 301], where it was held “Compassionate appointment is intended to enable the family of the deceased employee to tide over sudden crisis and distress resulting due to the death of the bread earner who had left out the family in penury. Immediate action is always required for requesting for compassionate appointment after the demise of the deceased bread earner of the family. Such a matter cannot be allowed to be prolonged or kept alive for a long time after the death of the deceased.”

IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE The Hon’ble Justice Rajesh Bindal and The Hon’ble Justice Aniruddha Roy W.P.S.T. 619 Gour Sarkar The State of West Bengal & Ors. For the Petitioner: Mr. Taraprasad Halder Advocate Mr. Ambu Bindu Chakraborty Advocate. For the State Respondents: Learned Government Pleader Mr. Biswabrata Basu Mullik Advocate Mr. Raja Saha Advocate. Mr. Jyotosh Majumder Advocate Through VC Heard on: January 11 2021. Judgment on: February 10 2021 ANIRUDDHA ROY J.: 1. The present writ petition was filed challenging the impugned order dated March 15 2019 passed by the West Bengal Administrative Tribunal Kolkata in OA No. 328 of 2017 (Gour Sarkar versus The State of West Bengal and others) filed by the writ petitioner whereunder the relief claimed by the writ petitioner seeking compassionate appointment in the Home Department of the State was declined. 2. The writ petitioner is an Arts Graduatewas employed as a constable in the Office of the Superintendent of Police District Murshidabad. The father of the petitioner died on November 12 2005 leaving behind his widow two daughters and one son being the writ petitioner herein. At the time of death of his father the petitioner was 11 years old. However the the two daughters of the deceased were major. The widow of the deceased made a representation dated July 31 2006 requesting the State Authority that as and when the writ petitioner would become major appointment on compassionate basis be granted to him since the deceased had died in harness. 3. Upon attaining majority the writ petitioner made a representation and applied for compassionate appointment on the necessary format with all requisite documents before the State Authorities 4. Upon receipt of the said representation from the writ petitioner the relevant authority of the State directed the Officer in Charge Gazole Police Station that the writ petitioner would appear before the police line on January 13 2014 for employment under exempted category. The petitioner was informed to appear in the written test to be held on February 2 2016 and the consequent physical fitness procedure. The writ petitioner duly participated in the written test and the physical fitness procedure and performed well in the same as claimed by the writ petitioner. The petitioner was also called for viva voce tests on February 24 2016 after qualifying the written test. 5. Thereafter as the writ petitioner did not receive any communication he was compelled to move the Tribunal filing OA 2515. The same was disposed of vide order dated November 26 2015 passed by the Tribunal whereby Additional Chief Secretary Department of Homewas directed to take a decision with regard to the compassionate appointment of the writ petitioner and communicate the same to him. Pursuant to the said direction the concerned State Authority vide its decision dated July 18 2016 rejected the prayer of the writ petitioner for compassionate appointment. 6. Being aggrieved by the said decision of the Additional Chief Secretary Department of Home the writ petitioner filed the said original Application praying for the following reliefs: “ A direction upon the respondent No.2 to quash and or set aside the impugned order being No. 3144 PL PB 2P 212 16 dated 18 7 2016 as set out annexure ‘P 6’ to the instant application. b) The direction upon the respondent specifically the respondent No.3 to rescind and or withdraw the impugned order and or not to give effect the annexure ‘P 6’ by allowing the applicant to join in the post of Constable in “est Bengal Police under compassionate ground in die in harness category. c) The direction upon the respondent No.2 to consider the prayer of the applicant as stated in Annexure ‘P 7’ dated 01 12 2016 of the instant application. d) To pass such order or orders direction or directions and or any other order as to Your Lordship may does for and proper.” The said original application was dismissed by the order impugned. 7. Mr. Taraprasad Halder Learned Advocate appearing with Mr. Ambu Bindu Chakraborty Advocate for the writ petitioner submitted that the writ petitioner was a minor in 2005 when his father died. A representation was made for his compassionate appointment by the widow of the deceased seeking a compassionate appointment for him. The widow was not literate and the sisters of the writ petitioners who were then major were not in a position to do job. The writ petitioner after becoming major became entitled to get compassionate appointment in the year 2014 and immediately he then applied for the same to meet the need and sustenance of the family. 8. Mr. Halder submitted that the writ petitioner was fully eligible for appointment on compassionate basis. The state employer by asking the writ petitioner to sitin the written examination and to appear before the viva voce for selection in which the writ petitioner had performed well the state employer acknowledged the candidature of the writ petitioner for compassionate appointment and as such there was no good reason with the state employer to reject the claim of the writ petitioner. There was no delay and latches on the part of the writ petitioner or his family in applying for compassionate appointment and the moment writ petitioner attained majority he applied before the state employer for the same. The appointment is extremely necessary for survival of the family of the deceased and to meet their financial distress. In support of his contention Mr. Halder relied upon the judgment of a coordinate bench in the matter of: State of West Bengal and others versus Debarghya Chakraborty and others reported at5 WBLR244. 10. Mr. Jyotosh Majumder the Learned Government Pleader appearing with Mr. Biswabroto Basu Mullick Advocate for the state respondents at the threshold submitted that there is no specific scheme provided for giving compassionate appointment in the facts and circumstances under which the writ petitioner seeks such appointment. He further submitted that the deceased died in the year 2005 when the widow and two daughters of the deceased were there who were major but did not seek compassionate appointment and the family of the deceased could wait till the writ petitioner attained majority in January 2014 when the writ petitioner himself applied for compassionate appointment. It was submitted that the object behind compassionate appointment is to provide for immediate survival of the family of the deceased who died in harness. In the instant case no such necessity was there in the family of the deceased immediately after his death and therefore the question of granting compassionate appointment to the writ petitioner after about 11 years of death of the employee concerned will not arise. 11. Mr. Majumder then submitted that the decision of the state respondent to reject the prayer of the writ petitioner for compassionate appointment was based upon a notification of the Labour Department dated December 3 2013 to which he drew attention of this Court. The “eligibility” Clause being Clause 6 of the notification inter alia provides for that the family which is indigent and deserves immediate assistance for relief from financial destitution deserves 12. In support of his contention Mr. Majumder had relied upon the following such an appointment. In the matter of: Sanjay Kumar versus State of Bihar and others reported at7 SCC 192. In the matter of: State of U.P. and others versus Paras Nath reported at 1998) 2 SCC 412. In the matter of: Jagdish Prasad versus State of Bihar and another reported at1 SCC 301. In the matter of : Santosh Kumar Dubey versus State of U.P. and others reported at6 SCC 481. In the matter of: Food Corporation of India and another versus Ramkesh Yadav and another reported at9 SCC 531. Heard learned counsels for the parties and perused the paperbook. In the facts of this case the issue falls for consideration before this Court is that whether the writ petitioner is entitled for any compassionate appointment and or decision taken by the State employer rejecting the claim of the writ petitioner for compassionate appointment was just and lawful. 14. After hearing the parties and considering the materials before this Court it appears that facts are not disputed. The essential facts are that the deceased was the father of the writ petitioner who was employed as a constable in the Office of the Superintendent of Police District Murshidabad who died on November 12 2005. The writ petitioner was at that time 11 years old boy. The deceased left two daughters of the deceased who were major besides his widow. The widow and the daughters chose not to opt for any compassionate appointment. The widow made a representation dated July 31 2006 requesting the state employer that as and when the writ petitioner would become major compassionate appointment may be granted to him. The writ petitioner after becoming major filed representations dated January 12 2014 and March 11 2016 for compassionate appointment and went through the examination processes conducted by the state employer and ultimately vide communication dated July 18 2016 the claim of the writ petitioner for compassionate was rejected by the state employer. From the said communication dated July 18 2016 it appears to this Court that there was application of mind on the part of the state employer. The said decision was upheld by the Tribunal vide impugned order which was challenged in this writ petition. 15. On a perusal of the reasons mentioned in the said decision dated July 18 2016 whereunder claim of the petitioner was rejected by the state employer it is evident that the prayer was considered in the light of the notification dated December 3 2013 issued by the Labour Department and the subsequent amendment thereto which has been already referred to hereinabove. The said notification inter alia prescribes that the family which is indigent and deserves immediate assistance to the relief from financial destitution is to receive compassionate appointment. In as much as contemporaneously with the death of the deceased neither the wife of the deceased nor either of the two daughters sought for any compassionate appointment and on the contrary they made a representation to the effect that the writ petitioner being the minor son of the deceased may be provided with the compassionate appointment after he attains majority. The writ petitioner after attaining majority in the year 2014 for the first time applied for compassionate appointment which is after more than 8 years of the death of the deceased. The said decision dated July 18 2016 inter alia records that the concept of compassionate appointment is largely related to the need for immediate assistance to the family of the government servant to grant relief from economic distress. As the family of the deceased could survive for about 8 to 9 years after the death of the deceased till the writ petitioner attained majority he was not entitled for compassionate appointment as there was no immediate need of sustenance for survival or any immediate financial 16. Compassionate appointment is intended to enable the family of the deceased employee to tide over sudden crisis and distress resulting due to the death of the bread earner who had left out the family in penury and without any means of livelihood. Immediate action is always required for requesting for compassionate appointment after the demise of the deceased bread earner of the family. Such a matter cannot be allowed to be prolonged or kept alive for a long time as in the instant case for about 8 to 9 years after the death of the deceased. There cannot be reservation of vacancy till such time as the writ petitioner became a major after lapse of 8 to 9 years unless there are some specific provisions. The very object of the compassionate appointment is to look after the family so that the family gets immediate relief. In the matter of: Sanjay Kumarthe Hon’ble Supreme Court had held: “3. We are unable to agree with the submissions of the learned Senior Counsel for the petitioner. This Court has held in a number of cases that compassionate appointment is intended to enable the family of the deceased employee to tide over sudden crisis resulting due to death of the bread earner who had left the family in penury and without any means of livelihood . In fact such a view has been expressed in the very decision cited by the petitioner in Director of Education v. Pushpendra Kumar. It is also significant to notice that on the date when the first application was made by the petitioner on 2 6 1998 the petitioner was a minor and was not eligible for appointment. This is conceded by the petitioner. There cannot be reservation of a vacancy till such time as the petitioner becomes a major after a number of years unless there are some specific The very basis of compassionate appointment is to see that the family gets immediate relief”. “5. The purpose of providing employment to a dependant of a government servant dying in harness in preference to anybody else is to mitigate the hardship caused to the family of the employee on account of his unexpected death while still in service. To alleviate the family such appointments are distress of permissible on compassionate grounds provided there are Rules providing for such appointment. The purpose is to provide immediate financial assistance to the family of a deceased government servant. None of these considerations can operate when the application is made after a long period of time such as seventeen years in the present case. 7. No such considerations would normally operate seventeen years after the death of the government 18. In the matter of: State of U.P. & Ors. the Hon’ble Supreme Court had servant. The High Court was therefore not right in granting any relief to the respondents”. In the matter of Jagdish Prasad the Hon’ble Supreme Court had “3. It is contended for the appellant that when his father died in harness the appellant was minor the compassionate circumstances continue to subsist even till date and that therefore the court is required to examine whether the appointment should be made on compassionate grounds. We are afraid we cannot accede to the contention. The very object of appointment of a dependent of the deceased employees who die in harness is to relieve unexpected immediate hardship and distress caused to the family by sudden demise of the earning member of the family. Since the death occurred way back in 1971 in which year the appellant was four years old it cannot be said that he is entitled to be appointed after he attained majority accepted it amounts to another mode of recruitment of the dependent of a deceased government servant which cannot be encouraged de hors the recruitment rules”. In other words if that contention “11. The very concept of giving a compassionate appointment is to tide over the financial difficulties that are faced by the family of the deceased due to the death of the earning member of the family. There is immediate loss of earning for which the family suffers financial hardship. The benefit is given so that the family can tide over such financial constraints. The request for appointment on compassionate grounds should be reasonable and proximate to the time of the death of the bread earner of the family inasmuch as the very purpose of giving such benefit is to make financial help available to the family to overcome 20. In the matter of Santosh Kumar Dubey the Hon’ble Supreme Court had held: sudden economic crisis occurring in the family of the deceased who has died in harness. But this however cannot be another source of recruitment. This also cannot be treated as a bananza and also as a right to get an appointment in government service. In the present case the father of the appellant became untraceable in the year 1981 and for about 18 years the family could have survive and successfully faced and overcome the financial difficulties that they faced on missing of the earning member. That being the position in our considered opinion this is not a fit case for exercise of our jurisdiction. This is also not a case where any direction could be issued for giving the appellant a compassionate appointment as prevalent rules governing the subject do not permit us for issuing any such directions. The appeal therefore has no merit and is dismissed”. 21. In the matter of Food Corporation of India & Anr.(Supra) the Hon’ble Supreme Court had held: compassionate appointments. Nor “9. There is no doubt that an employer cannot be directed to act contrary to the terms of its policy compassionate appointment be directed debtors the policy. In LIC v. Asha Ramchhandra Ambedkar this court stressed the need to examine the terms of the rules schemes governing compassionate appointments and ensure that the claim satisfied the requirements before directing compassionate appointment. In this case appointment to the dependant of an employee who seeks voluntary retirement on medical grounds after attaining the age of 55 years. There is a logical and valid object the benefit of compassionate appointment for a dependant of an employee voluntarily retiring on medical grounds will be the employee seeks such available only where retirement before completing 55 years. But for such a condition there will be a tendency on the part of employees nearing the age of superannuation to take advantage of the scheme and seek voluntary retirement at the fag end of their service on medical grounds and clearly bars in providing 12 thereby virtually creating employment by “succession”. It is not permissible for the court to relax the said condition relating to age of the employee. Whenever a cut off date or age is prescribed it is bound to cause hardship in marginal cases but that is no ground to hold the provision as directory and not mandatory”. 22. Applying the law prevailing on the field as discussed above the purpose of providing employment to a dependant of a government servant dying in harness in preference to anybody else is to mitigate the immediate hardship caused to the family of the deceased on account of his unexpected death while still in service. To alleviate the distress of the family such appointments are permissible on compassionate grounds provided and subject to there being specific and expressed rules or schemes providing such appointment. The Courts and the Tribunal cannot confer benediction impelled by sympathetic considerations to make appointments on compassionate grounds when the regulation framed in respect thereof did not cover and contemplate such appointments. For the purpose reference can be made to the judgment of Hon’ble the Supreme Court in the matter of: MGB Gramin Bank v. Chakrawarti Singh reported at AIR 2013 SC 3365. In the matter of: Umesh Kumar Nagpal v State of Haryana & Ors reported at 1994) 4 SCC 138 Hon’ble Supreme Court considered the nature of the right which a dependant can claim while seeking employment on compassionate ground. The Court observed as under: “The whole employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased…..The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations and the change in the status and affairs of the family engendered by the erstwhile employment which are suddenly upturned…. The only ground which can be justify compassionate employment is the penurious condition of the deceased’s family. The consideration for such employment is not a vested right. The object being to enable the family to get over the financial crisis.” Emphasis added) 24. An ‘ameliorating relief’ should not be taken as opening an alternative mode of recruitment to public employment. Furthermore an application made at a belated stage cannot be entertained for the reason that by lapse of time the purpose of taking such appointment stands evaporated. 25. Considering the facts of this case immediately after the death of the deceased in 2005 the widow or any of the daughters who were then major could apply for such compassionate appointment to overcome the immediate financial distress occurred due to the sudden death of the deceased while in employment and for survival of the family such is not the case. Merely a representation was made by the widow requesting for a compassionate appointment for the writ petitioner who was then a minor after attaining his majority. The writ petitioner attained majority after 8 to 9 years of the death of the deceased and applied for compassionate appointment this clearly shows that there was no requirement of an immediate appointment in the family of the deceased to meet any financial distress or for survival of the family of the deceased after his sudden demise in 2005. In other words the family could survive without such employment till 2014 or 2016. Such situation clearly goes against the object behind the compassionate appointment. 26. While adjudicating an issue of refusal to give compassionate appointment by the state employer it is the duty of the Tribunal or Court to carefully examine and consider that the request for appointment on compassionate ground should be reasonable and proximate to the time of death of the bread earner of the family who died in harness. The Tribunal and the Court must be very cautious and keep it in mind that the process of giving appointment on compassionate ground cannot be a source of recruitment and should not give rise to any right of employment in the government sector. The Court must also be very sure at the same time as to whether any specific rule or scheme is in existence for granting such a compassionate appointment in the relevant employment sector. The Court should not stretch the provision by liberal interpretation beyond permissible limits on humanitarian grounds. Such appointment should therefore be provided immediately to redeem the family in distress. It is improper to keep such a case pending for years. 27. The ruling In the matter of: Debarghya Chakraborty relied upon on behalf of the writ petitioner there the deceased employee died in harness on January 22 2010 and the writ petitioner seeking the compassionate appointment applied on March 25 2010 after the School Final examination. The writ petitioner further applied on January 10 2011 however the issue was not addressed by the state respondent till February 2014 and meanwhile a scheme of 2013 came in effect against such compassionate appointment. On this factual matrix a Coordinate Bench of this Court held that the delay towards consideration of the writ petitioners claim was attributable to the state authorities and as such the intervention of said scheme of 2013 had no effect in the case of the writ petitioner and the claim of the writ petitioner was rightly allowed by the Writ Court. In the instant case the writ petitioner applied after about 8 to 9 years of the demise of the deceased father. On the basis of such delayed application the claim of the writ petitioner cannot succeed. Thus the ratio of the judgment of the Coordinate Bench in the matter of: Debarghya Chakrabortyhas no application in the facts of this case. In view of the above discussions and for the reasons mentioned above this Court is of considered view that the decision of rejection dated July 18 2016 made by the state employer is valid and lawful and consequently the impugned order dated March 15 2019 passed by the Learned Tribunal suffers from no infirmity and accordingly the same is not interfered with. In view of the above the writ petition being WPST No. 63 of 2019 stands 30. There will however be no order as to costs. I agree (Rajesh Bindal J.)

Writ petitions seeking direction for registration of an FIR must approach the competent court by filing the application u/s 156(3) CrPC: High Court of Delhi

If the petitioner feels that an offence has been committed, then the correct remedy for the petitioner is to approach the competent court by filing an application under Section 156(3) CrPC. Court must not entertain writ petitions seeking direction to the Police for registration of an FIR and the complainants must be delegated to approach the competent court by filing the application under Section 156(3) CrPC and the same was upheld by High Court of Delhi through the learned bench led by Justice Subramonium Prasad in the case of YAMUNA BANK KISHAN BACHAO MORCHA vs. STATE OF NCT OF DELHI & ORS. [W.P.(CRL) 2035/2020] on 01.02.2022. The facts of the case are that the petitioner is a society consisting of farmers who are inhabitants on the banks of river Yamuna for over the last 100 years and cultivating about 15,000 bighas of land. The writ petition mentions that the members of the petitioner Society have proof of ‘lagaan’ being paid by their forefathers since 1932 till 2012. It was stated that the Patwari and other policemen were torturing and harassing the farmers and were extorting money and extending threat to them. The farmers received several letters from the DDA claiming that the members of the petitioner Society were unauthorised occupants and that DDA was the owner of the property. The petition was filed to restrain respondents from taking over the lands of farmers until investigation was completed. The petitioner’s counsel stated that members of the petitioner Society are in occupation of the land for a number of years, even before DDA was constituted. He states that the members of the petitioner Society are the owners of the property and they can be evicted from the property only by authority of law i.e. by valid acquisition. He stated that the members of the petitioner Society have been paying tax to the DDA. The respondent’s counsel contended that the DDA had issued notice under the PP Act and eviction orders were passed. It was submitted that the Delhi Peasants Co-Operative Multipurpose Society Ltd. are rank trespassers and encroachers and others who are claiming through them are also encroachers. She further stated that the National Green Tribunal had also directed that the agricultural activities also must not be carried out on the floodplains of Yamuna. In view of the facts and circumstances of the cases, Court dismissed the writ petition as the petition was nothing but an abuse of the process of law and another attempt by the members of the petitioner Society to cling on to the land while they have already been held to be unauthorized occupants and encroachers. The Court observed that, “writ petitions seeking direction to the Police for registration of an FIR and the complainants must be delegated to approach the competent court by filing the application u/s 156(3) CrPC. If the petitioner feels that an offence has been committed, then the correct remedy for the petitioner is to approach the competent court by filing an application under Section 156(3) CrPC. Court must not entertain writ petitions seeking direction to the Police for registration of an FIR and the complainants must be delegated to approach the competent court by filing the application under Section 156(3) CrPC.” Click here to read the Judgment Judgment reviewed by – Shristi Suman

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 01st FEBRUARY 2022 IN THE MATTER OF: W.P.(CRL) 2035 2020 YAMUNA BANK KISHAN BACHAO MORCHA ..... Petitioner Through Mr. Rajeev Lochan Advocate STATE OF NCT OF DELHI & ORS Through Ms. Nandita Rao ASC for the State ...... Respondents Ms. Prabhsahay Kaur Standing Counsel for DDA R 4 to R 7 HON BLE MR. JUSTICE SUBRAMONIUM PRASAD SUBRAMONIUM PRASAD J. This writ petition has been filed with the following prayers: issue a writ order or direction in the nature of mandamus commanding the Respondent No 2 to take action against the Respondent no.3 to 9 and or b) Issue a writ order to restrain to respondent no. 4 to 7 to take over the lands of farmers until investigation c) Issue a writ order to Compensation to farmers from the account of DDA to the farmer to damaging their full grown crops. d) Any other relief which this Hon’ble Court deems fit and proper may kindly be passed in favour of the Petitioner and against the respondents." It is stated that the petitioner is a society consisting of farmers who are inhabitants on the banks of river Yamuna for over the last 100 years and W.P.(CRL) 2035 2020 cultivating about 15 000 bighas of land. The writ petition mentions that the members of the petitioner Society have proof of lagaan being paid by their forefathers since 1932 till 2012. It is stated that the farmers were growing Radish Brinjal Potato Onion etc. on the said land. It is stated that the members of the Petitioner Society could not be deprived of the land without following the procedure as laid down under law. It is stated that the members of the Petitioner Society have been paying money to the Delhi Peasants Co Operative Multipurpose Society Limited. It is stated that though the DDA claimed that they have cancelled the lease deed of the Delhi Peasants Co Operative Multipurpose Society Limited in 1967 but it kept on collecting lagaan till 2016 which is a criminal and fraudulent act. It is stated that the Patwari and other policemen are torturing and harassing the farmers and are extorting money and extending threat to them. It is stated that the farmers have received several letters from the DDA claiming that the members of the petitioner Society are unauthorised occupants and that DDA is the owner of the property. It is stated that on 08.11.2020 the officials of DDA gathered at the Bela Estate with JCB machines accompanied by the Police Force with two Battalions of CRPF and BSF for evicting the members of petitioner society with an intent to grab the land. Though notice has not been issued in this petition counters have been filed by the DDA. It is stated that the National Green Tribunal had held that Yamuna Plains are to be protected and no encroachment of any kind is permitted therein. It is stated that DDA has been entrusted with an affirmative duty to protect the river Yamuna its morphology and its flood W.P.(CRL) 2035 2020 plains and it was in a bid to fulfil this mandate and keep the Yamuna floodplains encroachment free the DDA undertakes regular demolition and removal actions. It is stated that in 2013 writs have been filed restraining the authorities from dispossessing the farmers who were occupying the banks at river Yamuna without following the procedures established under law. The land in question in the said writ petition had been leased out to two different Societies namely Jhil Khuranjia Milk Producers Co operative Society Ltd. and Delhi Peasants Co operative Multipurpose Society Ltd. Material on record shows that the members of the petitioner Society were paying certain amount to the Delhi Peasants Co operative Multipurpose Society Ltd. The said writ petitions were dismissed. LPAs were filed against the order of dismissal. This Court vide judgment dated 31.01.2018 dismissed the batch of LPAs. While dealing with the land which was allotted to the Delhi Peasants Co operative Multipurpose Society Ltd it was found that in 1949 the Delhi Peasants Co operative Multipurpose Society Ltd. was allotted agricultural land measuring 13 344 bighas on leasehold basis for a period of 5 years by the Delhi Improvement Trust Act 1971were issued by the Estate Officer to the individual cultivators and the eviction orders were passed in the year 1991 1992. After several proceedings the eviction proceedings were started by the DDA in the year 2004 and eviction orders W.P.(CRL) 2035 2020 were passed on 01.08.2007 for vacation of the land. The matter was remanded back to the Estate Officer and final orders were passed by the Estate Officer. The said orders were unsuccessfully challenged in appeal. The orders dismissing the appeals were challenged before this Court by filing writ petitions. The writ petitions were dismissed by this Court vide order dated 21.10.2016. In the LPAs a contention was raised stating that members of the Society were tenants who were in occupation and possession of lands and therefore PP Act could not have been initiated against them since they are not unauthorised occupants. The Division Bench of this Court vide order dated 31.01.2018 held that the occupants of the land could be evicted by resorting to PP Act. It was found that the members of the Society had become unauthorized occupants of the land belonging to DDA. It is pertinent to mention here that the petitioners in the said writ petition contended that there was collusion between the Society and the DDA. It was stated that the members of the petitioner Society were paying money to the Delhi Peasants Co operative Multipurpose Society Ltd. 10. The appellants therein preferred an appeal against judgment dated 31.01.2018 before the Hon ble Supreme Court in SLP(C) Diary No.5253 2018 titled as Shiv Shankar & Ors. v. DDA and other appeals wherein the Apex Court dismissed the SLP while upholding the judgment passed by this Court and directed the appellants to vacate the subject land by December 2019. It is stated that further the appellants therein filed a curative petition before the Apex Court being Curative Petition38 52 2020 titled as Sunil Kumar & Anr. v. DDA which was dismissed vide order dated 21.05.2020. W.P.(CRL) 2035 2020 It is stated that the members of the petitioner Society herein are attempting to reopen and re agitate issues that stands settled up by the Apex Court. It is stated that the National Green Tribunal vide judgment dated 13.01.2015 in O.A. NO.6 2012 titled as Manoj Mishra v. UOI & Ors. judgment dated 07.12.2017 in O.A. No.76 2016 and O.A. No.81 2016 titled as Manoj Mishra v. UOI & Ors. judgement dated 11.09.2019 in O.A. No.6 2012 titled as Manoj Mishra v. UOI & Ors. has directed the DDA to ensure that the Yamuna floodplains remain encroachment free. It is stated that the National Green Tribunal in O.A. No.6 2012 titled as Manoj Mishra v. UOI & Ors. has directed the DDA to undertake physical demarcation of the entire floodplains within three months and after taking re possession fence the area and convert it into a bio diversity park. Vide judgment dated 07.12.2017 the NGT reiterated that the floodplains of Yamuna should not be permitted for construction occupation habitation etc. and it is the duty of the answering respondent DDA to maintain the natural features and ecology of the floodplain. It is stated that while dealing with a similar issue a Division Bench of this Court by way of order dated 07.10.2020 in LPA No.276 2020 titled as Shakeel Ahmed & Anr. v. DDA & Ors. has directed the appellants writ petitioners therein to approach the National Green Tribunal for any relief as demolition and re possession of Yamuna floodplains carried out by DDA was mandated by the National Green Tribunal. It is also pointed out that besides the judgments of the National Green Tribunal a Division Bench of this Court vide judgment and order dated 03.04.2013 in Haq through its members Abdul Shakeel v. DDA & Anr. 2013 SCC Online Del 1284 had held that by removing the encroachment W.P.(CRL) 2035 2020 on the Yamuna floodplains DDA is only complying with the directions of the Court and no fault can be found with the DDA on this account. Moreover the Court found that there was no question of providing rehabilitation to those in illegal occupation of land. It is stated that the writ petition is not maintainable in light of the settled law to the effect that even if the grievances of the petitioner were taken at face value the remedy would be to approach the concerned Magistrate under Section 156(3) CrPC in case proper investigation has not been carried out by the Police. 16. Heard Mr. Rajeev Lochan learned counsel for the petitioner Ms.Nandita Rao learned ASC for the State Ms. Prabhsahay Kaur learned Standing Counsel appearing on behalf of respondents No.4 to 7. 17. Mr. Rajeev Lochan learned counsel for the petitioner states that members of the petitioner Society are in occupation of the land for a number of years even before DDA was constituted. He states that the members of the petitioner Society are the owners of the property and they can be evicted from the property only by authority of law that is by valid acquisition. He states that the members of the petitioner Society have been paying tax to the DDA. 18. Mr. Rajeev Lochan learned counsel for the petitioner raised several questions in the writ petition which are as under: a) When how DDA became the owner of all the above said claimed land at the front of river Bank of Yamuna which belongs to farmers land. b) Did DDA have paid any consideration money to farmers c) Under which rule of law and regulation DDA made claim of the above mention land. W.P.(CRL) 2035 2020 d) In what capacity DDA has lease out this thirteen thousand bighas of land to Delhi Peseants Co Operative Multipurpose Society Ltd of Yamuna bank. e) Is DDA had any proof of the above mention all land acquisition paper by paying any compensation to the farmer from the 1949 to till date. f) In what capacity DDA has cancel lease deed of the so called society when DDA was never ever absolute owner of the land. g) In what capacity Delhi Peseants Co Operative Multipurpose Society Ltd collecting the yearly dues lagaan from farmer and looted them for more than 70 years." Learned counsel for the petitioner states that there is no reply from DDA on any of these aspects. He states that the members of the petitioner Society are legitimate and bona fide occupants of the land and cannot be removed by using Police force. He states that the authorities are depriving the members of the petitioner Society of the land and have committed various offences against them for which action ought to be taken against them. 19. Per contra Ms. Prabhsahay Kaur learned Standing Counsel appearing on behalf of respondents No.4 to 7 contends that the DDA had issued notice under the PP Act and eviction orders were passed. The eviction orders were challenged before the learned Single Judge of this Court in batch of petitions being W.P.(C) 8307 2016 etc. which were dismissed vide order dated 21.10.2016. The matter was taken to the Division Bench. The Division Bench held that the Delhi Peasants Co Operative Multipurpose Society Ltd. are rank trespassers and encroachers and others who are claiming through them are also encroachers. Since they can claim their occupation only through Delhi Peasants Co Operative Multipurpose Society W.P.(CRL) 2035 2020 Ltd. the Division Bench observed as under: 56. Admittedly the eviction orders of Estate Officers under the PP Act against some of the occupants of public premises claiming their rights through Jheel Khuranja Cooperative Milk Producers Society Limited were upheld by the Coordinate Bench of this Court in Smt. Dhan Kaurin LPA No.810 2015 decided on 17.11.2015. These two orders of Coordinate Benches of this Court in respect of property allotted to Jheel Khuranja Cooperative Milk Producers Society Limited and Delhi Peasants Cooperative Multipurpose Society Limited relate to the same properties which were allotted under the same occupation of some other members of these Societies other than the appellants and the writ petitioners before us) are binding on us on the principles of constructive res judicata and also on the principle that the similarly placed persons should be treated alike. The appellants and the writ petitioners before us are similarly placed persons and the earlier findings given in respect of similarly placed persons are also binding on them." these Societies though were 20. The Division Bench therefore directed the members of the Delhi Peasants Co Operative Multipurpose Society Ltd. and all persons claiming through them to vacate the land. The said judgment was challenged in the Apex Court vide SLP Diary No.5253 2018 titled as Shiv Shankar & Ors. v. DDA. The Apex Court refused to entertain this Special Leave Petition. The Apex Court on 20.03.2018 dismissed the petition and granted W.P.(CRL) 2035 2020 time to the petitioners till December 2019 to vacate the possession on the undertaking given to the Supreme Court. Against the said order the petitioners filed curative petitions which have also been dismissed. Ms. Prabhsahay Kaur learned Standing Counsel appearing on behalf of respondents No.4 to 7 states that there are orders of the National Green Tribunal where directions have been given to evict the encroachers on the Yamuna floodplains. She states that the National Green Tribunal had directed that the agricultural activities also must not be carried out on the floodplains of Yamuna. She states that the entire floodplains of Yamuna is about 52 to 56 kilometres covering an area of 1267 hectares coming over 3130 acres but the petitioner has not given any specific area. The petitioner has only given receipts for an area called as Bela estate. She states that the instant writ petition is only an abuse of the process of law and the members of the petitioner Society who were claiming land and had given an undertaking to the Supreme Court that they will vacate the premises cannot be permitted to continue with the present proceedings. She further states that the prayers sought for cannot be granted. 22. At the outset it is to be mentioned that all the questions raised by the petitioner in the instant writ petition have been conclusively answered by this Court while deciding the batch of LPAs which have been dismissed by this Court vide order dated 31.01.2018. The receipts filed by the petitioner shows that the cultivators therein form a part of the land called as the Bela Estate. Material on record indicates that there was an agreement entered into between the Secretary of the State and Delhi Improvement Trust on 31.03.1937 by which the Bela Estate which has been shown as Nazul land had been given to DIT on lease. DDA is the successor of DIT and on W.P.(CRL) 2035 2020 termination of the lease the members of the petitioner Society have become encroachers and are therefore identically situated to the petitioners in LPA 479 2013 LPA 481 2013 LPA 482 2013 LPA 482 2013 etc. which were filed before this Court in 2013 and are therefore fully covered by that judgment. The said judgment states as to how DDA can be the owner of the land and how the members of the Delhi Peasants Co Operative Multipurpose Society Ltd to which the petitioners are paying money have become encroachers. The petitioner is only seeking to re agitate the same issues which have been decided by this Court in a batch of LPAs being LPA 479 2013 LPA 481 2013 LPA 482 2013 LPA 482 2013 etc. way back in 23. The instant petition is a mischievous petition. A perusal of the writ petition shows that the petitioners have cleverly not mentioned the place where they are carrying out their activities. Other than making a bald assertion that they are in possession of the area for the last 100 years there is no document on record to establish the possession. The petitioners have shown certain receipts which are being given to the Delhi Peasants Co Operative Multipurpose Society Ltd. This shows that the petitioners are only claiming through the Delhi Peasants Co Operative Multipurpose Society Ltd and the judgment dated 31.01.2018 of the Division Bench of this Court has already held as to how the petitioners in that batch of LPAs have become encroachers. There is no receipt which has been given by the DDA. At best the members of the petitioner society can claim that they were in occupation of the land only through the Delhi Peasants Co Operative Multipurpose Society Ltd. The petitioners therefore are bound by the judgment passed by the Division Bench of this Court in LPA 479 2013 and other connected W.P.(CRL) 2035 2020 matters which has been affirmed by the Apex Court. The petitioner has therefore violated the undertaking given to the Apex Court. 24. The petitioners have filed Annexure P 2 which is a notice under Section 4 (b) of the Public Premises Act wherein the noticee has been shown as an occupant and had been asked to remove. The Annexure demonstrates that the members of the Delhi Peasants Co Operative Multipurpose Society Ltd. are purely unauthorized occupants of the area who had been directed to be removed by this Court and the National Green Tribunal. This Court has also gone through the various orders passed by the National Green Tribunal directing the DDA to evict the unauthorized occupants. By order dated 11.09.2019 NGT had directed that a bio diversity park must be established in that area in order to cleanse river Yamuna. It is also stated that the society has filed a civil suit being Civil Suit No.77 2021 on the file on Additional District Judge Tis Hazari Courts wherein the petitioner sought prayer for injunction restraining DDA from evicting its members. The said suit is pending. 25. The petitioner has not been able to establish any semblance of right on the property. Other than filing few receipts which shows that money has been paid to the Delhi Peasants Co Operative Multipurpose Society Ltd. in Bela estate which is a Nazul land does not confer any right to the petitioner especially when the Delhi Peasants Co Operative Multipurpose Society Ltd. has already failed in its attempt and the members of the petitioner Society have been held trespassers by the Division Bench in LPA 479 2013 and other connected matters and the SLP review and curable petitions arising out of the said order have been dismissed by the Apex Court. 26. The writ petition shows that the petitioners are growing crops of W.P.(CRL) 2035 2020 Radish Brinjal Potato etc. which is clearly prohibited by the order of the National Green Tribunal. The National Green Tribunal by order dated 13.01.2015 has observed as under: 51. Unauthorised activities are being carried out on the floodplain and at some places they have even encroached up to the riverbed of Yamuna. Agricultural products raised from these areas have shown to be injurious to human health primarily for the reasons that the river carries very high pollutants including heavy metals and acidic elements. One of the studies brought on record which is even supported by the United Nations is the first to link river contamination with adverse impacts on human health. According to this study around 23% of children had lead levels in their blood above 10 micro grams a widely accepted guideline whose adverse health effects have been noted. The study said high level of lead in blood was eight times more when exposed to the riverbank after Wazirabad in north Delhi compared to rural areas upstream in Haryana where river water contamination was found to be less. Heavy metals such as lead are more readily absorbed by children as compared to adults. The resultant disasters would be impairment of motoring skills onset and development of hypertension and may even result in slow cognitive development. Water and soil samples were lifted every 2 km starting from Wazirabad Barrage and covered 22 km of the river in the capital. The presence of heavy metals increased after Wazirabad even though every drop of water that flows in the river .in Delhi has to be cleaned through Sewage Treatment and Effluent Treatment Plants. Presence of heavy metals was negligible in Haryana. Hexavalent chromium said to be hazardous was found to be highest at Old Yamuna Bridge and Indraprastha Estate Power Plant. This is the area where maximum vegetables are grown on riverbed. At this point there is also heavy industrial discharge into W.P.(CRL) 2035 2020 the river. 52. Agricultural activities must be carried on as it is essential for our day to day living but agriculture produce that will lead to greater harm to human health must be checked and if necessary should also be stopped. The principle of Inter generational Equity would require that today younger generation should not be exposed to serious health hazards and thus it will not only be desirable but essential that such contaminated produce vegetables are not offered for consumption to the people at large. The Principle of Comparative Hardship would clearly mandate that where the injury is n much greater in proportion to the benefit that would accrue as a result of such activity the activity must be stopped in the larger interest of the public and of public health." In the absence of any title the prayer for mandamus commanding the respondents No.2 to take action against the respondents No.3 to 9 is not maintainable. If the petitioner feels that an offence has been committed then the correct remedy for the petitioner is to approach the competent court by filing an application under Section 156(3) CrPC. The Apex Court in Sakiri Basu vs. State of UP 2 SCC 409 and Priyanka Srivastava vs. State of UP 6 SCC 287 had directed that the High Court must not entertain writ petitions seeking direction to the Police for registration of an FIR and the complainants must be delegated to approach the competent court by filing the application under Section 156(3) CrPC. 28. Since the records show that the members of the petitioner society are in unlawful occupation the relief for compensation on the ground of DDA damaging the crop is not maintainable. This writ petition is nothing but an abuse of the process of law and another attempt by the members of the W.P.(CRL) 2035 2020 petitioner Society to cling on to the land while they have already been held to be unauthorized occupants and encroachers. The members of the petitioner Society have therefore violated the undertaking given to the Apex Court. Since the petitioner claims that their members are farmers this Court is not imposing costs on the petitioner Society. 29. The writ petition is dismissed with the above observations along with pending application(s) if any. FEBRUARY 01 2022 SUBRAMONIUM PRASAD J W.P.(CRL) 2035 2020

The Court may interfere when a decision is devoid of any reason or affected by malafides or when the decision is reached after statutory violations: Kerala High Court

It appeared that the students pursuing state syllabus would have an opportunity to score well if some effort was put on and not the other way around. The writ petition had been dismissed because petitioners have not made any case for interference held by Hon’ble Justice Raja Vijayaraghavan V in Mohammad Midlej C (Minor) versus State of Kerala [ WP(C) 15971/2021]. A Division Bench of this Court refused to interfere, holding that the petitioner in the said writ petition had failed to establish any arbitrariness or illegality on the part of the respondents. The facts leading to this case relate to the writ petition filed by six students of plus one class who have approached the court impugning notification dated 28.5.2021 issued by the General education department of the state. The first-year higher secondary examination has been conducted from 6.9.2021 to 16.9.2021. The petitioners seeking to quash the notification mentioning the issues related to the online study due to pandemics, so all students are not able to get the proper classes due to the internet issues, lockdown in state and other related problems like dangerous for health and life. Under article 21 of the Indian constitution, the Right to life will hamper and seek the internal examination like the CBSE board conducted for class 10th and 12th. Respondent also kept the points like this examination has been supposed to conduct in April month. Still, due to the pandemic, it has been cancelled, and the examination date has been announced well in advance. The student got enough time for preparation. The Focus area has also been isolated. It has also been decided to double the questions so that the students attend only 50% of the questions to get full marks in each subject. The Plus Two online classes were stopped on 31/07/2021. Plus, one revision class commenced on 2.8.2021, and it is stated to continue till 14/08/2021. This exam is essential for admissions to good colleges for higher studies because it will add those marks. All preventive measures will be taken for the Covid situation. Judgement of the Petition based on the following points pointed by Sri. Hood, the learned Senior Government Pleader. He would point out that the apprehension expressed by the petitioners are misconceived. Several 1000 students eagerly wait to test themselves in the exam, and the petitioners do not represent such students. It was pointed out that the respondents took note of the difficulties faced by the students, and the SCERT were asked to identify focus areas and teachers were asked to emphasize those areas and classes were stopped to enable the students to prepare for the Plus One examination and courses are slated to commence only after the exams. None of the petitioners has a case that at any point of time, they have informed either the respondents or the School concerned that they are unable to access the classes for lack of devices or poor internet connectivity.

WP(C)Nos.13129 & 15971 OF 2021 IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY THE 31ST DAY OF AUGUST 2021 9TH BHADRA 1943 WP(C) NO. 13129 OF 2021 AGED 16 YEARS REPRESENTED BY HER MOTHER AND LEGAL GUARDIAN MAYA R MANI W O. MR. B.AJAYAKUMAR AGED 45 YEARS RESIDING AT T.C.16 426 ESWARAVILASAM ROAD THYCAUD P.O. THIRUVANANTHAPURAM PINCODE 695014 JOSEPH JIMMY AGED 18 YEARS S O. JIMMY PAUL PADINJARE KOCHUVETTIL KOLAKKAD P.O. KANNUR PINCODE 670673 ANCY BINNY AGED 16 YEARS REPRESENTED BY HER MOTHER AND GUARDIAN MRS. BINDU BINNY AGED 48 YEARS D O. JOHN CHERIYAN THAYYIL HOUSE ALAYAMON P.O. ANCHAL KOLLAM ANNIE FREDDY AGED 16 YEARS REPRESENTED BY HER MOTHER AND GUARDIAN JACQUILINE D. AGED 42 YEARS W O. FREDDY MORNING STAR POTHIVILAKAM POOVAR THIRUVANANTHAPURAM PAVITHRA M. AGED 16 YEARS REPRESENTED BY HER FATHER AND GUARDIAN MR. A.KANNAN AGED 51 YEARS S O. AYYAPPAN ACHARI TC 38 2383 ARYASALA JUNCTION THIRUVANANTHAPURAM PINCODE AJAYA KUMAR. G WP(C)Nos.13129 & 15971 OF 2021 STATE OF KERALA REPRESENTED BY THE SECRETARY GENERAL EDUCATION DEPARTMENT GOVERNMENT SECRETARIAT DIRECTORATE OF GENERAL EDUCATIONHOUSING BOARD BUILDINGS SANTHINAGAR THIRUVANANTHAPURAM PINCODE 695001 SRI T.B HOOD SPL GOVERNMENT PLEADER TO AG THIS WRIT PETITIONHAVING COME UP FOR ADMISSION ON 31.08.2021 ALONG WITH WP(C).15971 2021 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C)Nos.13129 & 15971 OF 2021 IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY THE 31ST DAY OF AUGUST 2021 9TH BHADRA 1943 WP(C) NO. 15971 OF 2021 MOHAMMED MIDLEJ CHAVING COME UP FOR ADMISSION ON 31.08.2021 ALONG WITH WP(C).13129 2021 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C)Nos.13129 & 15971 OF 2021 Six students studying in Plus One class have approached this Court with these writ petitions impugning notification dated 28.5.2021 issued by General Education Department of the State by which the First Year Higher Secondary Examination has been scheduled to be held from 6.9.2021 to 16.9.2021. The petitioners have sought for quashing the notification and cancel the Plus One final examination for the academic year 2020 2021. In one of the writ petitions directions have been sought to the Board of Higher Secondary Examinations to frame a guideline for conducting Plus One Final Year examinations internally in each school. 2. In view of the commonality of the issues raised both these writ petitions are taken up and disposed of together with the consent of the contesting parties. For the sake of ease and clarity the pleadings and Exhibits in W.P.(C) No.15971 2021 shall be mainly referred to in this judgment 3. The petitioner is stated to be a student studying in the Umbichy Hajee Higher Secondary School at Chaliyam in Class XI Commerce batch. It is contended that due to COVID 19 pandemic tutoring for Classes XI and XII are conducted online. Due to poor electronic connectivity network range issues and the non availability of electronic devices the studies of the petitioner has been adversely affected. It is contended that there are other WP(C)Nos.13129 & 15971 OF 2021 students in the school who suffer the same handicaps. 4. The respondents have scheduled the First Year Higher Secondary Terminal Evaluationfrom 6.9.2021 to 16.9.2021 as is evident from Ext.P2 notification. The notification was issued without considering the gravity of the COVID 19 pandemic situation prevalent in the State of Kerala. The petitioner contends that to secure the life and health of citizens and to keep the pandemic at bay the 4th respondent had issued Ext.P3 order imposing complete lockdown from 8.5.2021 to 16.5.2021 by invoking the powers under Section 20of the Disaster Management Act 2005. The lockdown was later extended in phases till 9.6.2021. It was only by Ext.P4 order dated 31.5.2021 that the 4th respondent had permitted certain Government departments to function with 50% attendance that too from 7.6.2021. According to the petitioner Ext.P2 which is seen published on 31.5.2021 is clearly against the directions imposed under Ext.P3. 6. The petitioner contends that the 4th respondent has reassessed the situation of the spread of the pandemic and the Test Positivity Rate in various Districts and have issued Ext.P5 order fixing guidelines and directions and detailing the permitted activities. Those guidelines are still in force. The 4th respondent had granted permission to conduct the examination only after the issuance of Ext.P5. According to the petitioner the decision taken by the respondent to conduct the examination was without any application of mind or after discussion with Government agencies. They have ignored the dire WP(C)Nos.13129 & 15971 OF 2021 situation prevailing in the State. 7. The petitioner contends that he is a resident of the Kadalundi Grama Panchayat which is included in the ‘D’ category by the 4th respondent as the Test Positivity Ratein the area is above 15 8. The petitioner further contends that he is residing in a coastal area where internet connectivity is very poor. He has not been able to attend the online classes regularly due to the above fact. The classes for Class XII commenced on the last week of June 2021 and the scheduling of the final year exam of Class XI while the classes for XII are going on will result in untold misery to the students. Though he had a smartphone when the classes commenced the phone got damaged and he was not in a position to purchase a new phone due to financial difficulties. According to the petitioner the online classes are not very effective and students who are better placed and financially well off will have an unfair advantage. It is contended that even during discussions in the assembly the digital divide prevailing in the State was highlighted and though it was assured that no efforts shall be spared to bridge the divide nothing worthwhile has happened. The petitioner refers to Ext.P8 and P9 proceedings to substantiate the said contention. 9. According to the petitioner the COVID 19 cases in the State have risen to alarming proportions and the Test Positivity Rate is also very high. As the students pursuing class XI are largely unvaccinated they are very vulnerable to the virus. It is contended that the decision of the WP(C)Nos.13129 & 15971 OF 2021 respondents to conduct the class and examinations would affect the life and health of the students. 10. The Central Board of Secondary Education had cancelled the public examinations for Class X and XII and had adopted a scheme for internal evaluation of students in the COVID 19 pandemic situation which scheme was approved by the Hon’ble Supreme Court of India. It is contended that some of the students intervened in W.P.(C) No.6221 pending before the Hon’ble Supreme Court and by Ext.P10 order the Apex Court refused to examine the grievance of the students of the State of Kerala who wanted to pursue XI standard examination and they were directed to approach this Court and raise all the contentions. The decision to conduct class XI examination while COVID 19 cases are peaking and the State is readying itself to face the third wave of the pandemic is an erroneous approach and violative of the rights of the students under Article 14 19(1)(a) and 21 of the Constitution of India 11. The very same contentions are advanced in W.P.(C) No 131221 filed by a few Plus Two students In W.P.15971 2021 the reliefs sought for by the petitioner are as follows a) issue a Writ of mandamus directing the second and third respondents to frame a guideline for conducting class XI final year examinations internally on each school wise and direct not to WP(C)Nos.13129 & 15971 OF 2021 conduct centralised class XI final year examinations as in Exhibit P 2 b) issue a Writ of certiorari and quash Exhibit P 2 as it violate Article 14 21 and 21 A of Constitution of India and the Disaster Management Act 2005 In W.P.(C) No.13129 21 the petitioners have sought the a) to issue a Writ of mandamus or any other appropriate Writ direction or order directing the respondents to cancel the plus one final examination for the academic year 2020 2021 and follow the scheme adopted by the CBSE Board for the conduct of examination of plus one class and thereby ensuring the bright future of the plus 14. Counter affidavit has been filed in W.P.No. 131221 which was adopted in the other Writ petition It is stated in the counter that the 2nd respondent issued Exhibit P1 notification on 28 05 2021 for conducting the first year higher secondary examinations from 06 09 2021 to 16 09 2021. As per the notification only those candidates who have undergone Continuous Evaluationfor all the six subjects shall be eligible to appear for terminal evaluation of the first year higher secondary examination. Some of the petitioners have got themselves registered for the Plus One examination after completing their continuous evaluation. COVID 19 pandemic has created an unprecedented situation across the world and new methods had to be devised for imparting education WP(C)Nos.13129 & 15971 OF 2021 Classes had to be conducted in online mode to prevent the loss of one academic year for the students. All efforts were taken to provide access to digital classes to all the students. The classes were imparted through VICTORS a Television Channel owned by the Kerala Infrastructure and Technology for Education a Government of Kerala establishment set up to foster promote and implement the modernisation of educational institutions in the State using technology. The Class X and Plus Two classes were conducted through digital platforms during the academic year 2020 2021. The Secondary School Leaving Certificateand Plus Two examinations were held in the State in April 2021 after ensuring that all safety measures are taken to prevent the spread of COVID 19 infections. The Plus One examination was also scheduled in the month of April May 2021 However in view of the rising number of COVID 19 cases it became difficult to conduct Plus One and Plus Two examinations simultaneously and hence Plus One examination was postponed. As the examination dates were announced well in advance the students got enough time for preparation 16. The form and structure of the Plus One examination had to be changed substantially in view of the COVID 19 scenario. The examination was decided to be held as per the curriculum that has been completed online Sufficient opportunities have been provided to the students to attend the classes in digital mode and to interact with teachers through various online methods. The services of the State Council for Educational Research and WP(C)Nos.13129 & 15971 OF 2021 Trainingwere availed to isolate a focus area of the syllabus and as per the inputs received Exhibit R2(a) circular dated 02 08 2021 was issued to all schools by the Director General of Education. Only questions from the focus area will be given prominence in the Plus One examination. It has also been decided to double the questions so that the students need to attend only 50% of questions to be eligible to get full marks in each of the subjects 17. The Plus Two online classes were stopped on 31 07 2021. Plus One revision class commenced on 2.8.2021 and it is stated to continue till 14 08 2021. In addition the Higher Secondary Directorate proposed to conduct a weeklong live phone in program through VICTORS channel to enable the students to clarify their doubts. Plus Two classes will be resumed only after the end of the Plus One examination 18. From the year 2009 Plus One Board Examination is conducted in the State and the marks scored in the Plus One examination are added to the Plus Two marks to determine the eligibility of the candidates for higher studies. Plus One examination is normally conducted in the month of March and improvement examinations during the month of September October of each year. However owing to the pandemic Plus One examination had to be postponed and in view of the above the students got enough time to prepare for the examination. The students who failed in the previous Plus Two examinations need to pass Plus One and Plus Two examinations in the subjects in which they had failed. So if the Plus One examination notified as WP(C)Nos.13129 & 15971 OF 2021 per Exhibit P1 is not conducted it would adversely affect their chances to pass and complete the course by 20212022. Further as per G.O(M.S 173 2021 G. Edn dated 05 08 2021 the last chance to write Plus Two examination for students who have not been eligible for higher studies in the Higher Secondary Examinations held from March 2009 to March 2016 is the Plus Two examination to be held in the month of March 2022. To appear in the Plus Two examination in the month of March 2022 it is mandatory for those students to write the Plus One examination notified as per Exhibit P1 According to the respondent if the Plus One examination is not conducted as per Exhibit P1 notification those students will suffer serious hardship 19. The SSLC and Plus Two examinations were conducted in April 2021 after taking all safety measures. In July 2021 the APJ Abdul Kalam Technological University conducted Engineering examinations in offline mode In the days just passed nearly One lakh students appeared for the Engineering Entrance examinations held offline. Plus One examination can also be conducted by adhering to all Covid 19 protocols brought out by the Government and by following the guidelines of the health authorities as was done for the earlier examinations. Separate arrangements can be made for those students who are Covid positive or who are in quarantine and for students who show any symptoms of Covid. It is stated that several measures are proposed to be taken for the safety and health of the students teachers and others involved in the Plus One examination process. The measures taken WP(C)Nos.13129 & 15971 OF 2021 have also been detailed which are as follows: A. Examination hall furniture and school compound will be cleaned and scrutinised sanitized. For this the service of the Health Department Parent Teacher AssociationsFire Force Local Self Government Institutions and Volunteers will be availed. The furniture in the examination hall will be sanitised before each examination. B. The entry of the students to the examination centre will be allowed only through the main entrance where non teaching staff health workers and members of the PTA will be deployed for providing sanitiser soap and water to the students and to check the temperature of the students using a thermal scanner. C. Classrooms with proper air circulation and adequate light will be used for examination. Air conditioned rooms will not be used. The maximum Number of students accommodated in a room will be twenty and it was pointed out that the respondents took note of the difficulties faced by the students and the SCERT was asked to identify focus areas and teachers were asked to give emphasis on those areas. The WP(C)Nos.13129 & 15971 OF 2021 focus areas have been carefully chosen in such a manner that they will aid the students in brushing up the Plus Two subjects. The school authorities have been intimated that questions from those focus areas will be given prominence in the Plus One exams. Furthermore in an unprecedented manner the students have the option of answering just 50% of the questions to be eligible to get full marks for each of the subjects. The learned counsel would then point out that Plus Two classes were stopped to enable the students to prepare for the Plus One examination and classes are slated to commence only after the exams. The predicament of the students who have failed and those students who have not been eligible for higher studies from 2009 onwards is also highlighted by the learned counsel. The experience gained by the State in conducting SSLC Plus Two and Engineering Entrance examinations are emphasized by the learned counsel to hammer home his contention that the apprehension of the students is misconceived. According to Mr. Hood none of the petitioners has a case that at any point of time they have informed either the respondents or the School concerned that they are unable to access the classes for lack of devices or poor internet connectivity. They cannot come and paint a different picture or raise the cause of other students. It is submitted that if the conduct of the exams is interfered with the whole admission process would get derailed and the same would affect the interest of the entire student community I have carefully evaluated the contentions advanced and have WP(C)Nos.13129 & 15971 OF 2021 gone through the records 26. About six students have approached this Court seeking cancellation of the Plus One exams. I find that it was by notification dated 28.5.2021 that the respondents have scheduled the conduct of the First Year Higher Secondary Examinations to be held from 6 9 2021 to 16 9 2021. It appears from Ext.P2 that the scores obtained from the First Year Exams are to be carried forward to the second year and the combined scores of First and Second Year Examinations and grades obtained thereupon shall determine the eligibility of the candidate for higher studies. The respondents have decided that there shall not be any practical evaluation for the First Year exams. From Exhibit R2it appears that the difficulties faced by the students as well as various other aspects were considered by the respondents while taking a decision to hold the exams. For each subject the SCERT has formulated focus areas and the students need to concentrate only on such areas. To make it simpler what is envisaged is that double the questions would be offered to the students and they are required to answer only 50% of the questions to secure full marks. As classes for Plus Two had commenced to ensure that the students are not subjected to serious strain steps have been taken to put the classes on hold till the Plus One exams are completed. These steps taken amply shows that unlike previous years the students will not have much difficulty while facing the exams I find it difficult to appreciate the contention of the petitioners WP(C)Nos.13129 & 15971 OF 2021 that the decision to conduct the exams was taken by the respondents without much deliberation and without any concern for the health of the students. I find that Ext.P2 notification was issued as early as 28.05.2021 fixing the date of exams in the month of September. From the materials made available it appears that serious efforts have gone in to make sure that the students are not unduly strained and at the same time the process of examination goes on The schools have been told to concentrate on certain focus areas and they have been informed that the questions will be asked only from those areas The students have been given the option of attempting only 50% of the questions to gain 100% marks. The fact that tutoring through the online mode is not as effective as in the physical mode was taken note of. The respondents also took note of the fact that students who had failed in the earlier exams and who want to pursue further studies will be adversely affected if physical exams are not held. This is clearly a matter of policy of the Government and it is obvious that much deliberation has gone into the same Once the Government after discussion with the experts in various fields decides to go forward with the exams with due regard to all aspects of the matter unless the petitioners are able to show that there is malafides or arbitrariness this Court will not be justified in interfering with the conduct of exams. The interference of Courts is neither warranted to look into the quality of material relied upon by the Government to approach a decision nor to adjudicate upon the sufficiency of such material. These matters are of a subjective character and if the legislature permits subjective powers on one WP(C)Nos.13129 & 15971 OF 2021 organ of the State this Court in the exercise of its powers of judicial review is not expected to substitute its own subjective opinion in its place. The Court may interfere when a decision is devoid of any reason or affected by malafides or when the decision is reached in the aftermath of statutory violations. In other words the formation of the opinion satisfaction by the Government about the conduct of the exam is a purely subjective process and if the materials show that the opinion was reached in good faith it is immune from judicial review 28. The next contention of the petitioners is that the conduct of physical exams would violate their right to life. The respondents have narrated the steps that they have taken to ensure that the exams are held in a safe and protected environment and they have asserted that all measures shall be taken to protect each and every child. I find that the State has conducted SSLC Plus Two and the Engineering Entrance exams successfully. Several lakhs of students have attended the exams and the petitioners have not even stated that the conduct of the exams as aforesaid led to any unforeseen consequences. I am in the facts and circumstances not impressed with the contention that by conducting the exams the constitutional rights of the petitioners would be violated. The Pandemic is here to stay and as rightly submitted by the learned Senior Government Pleader the life must go on Except for a handful of students no one has come forward seeking to cancel the exams. From the records it appears that the students pursuing the State WP(C)Nos.13129 & 15971 OF 2021 syllabus will have an opportunity to score well if some effort is put in and not the other way around. 29. The next contention is that due to lack of digital gadgets poor internet connectivity etc. some of the students were not able to participate in the classes. The petitioners have not produced any corroborating materials to substantiate their contentions except the excerpt of proceedings of the assembly. The petitioner in W.P.(C) No.15971 of 2021 have not even approached the respondents or the school authorities at any time prior to the filing of the writ petition asserting that he is not having the necessary equipment to access the online classes. The parent of one of the petitioners in W.P.(C) No.13129 2021 who is an advocate by profession is stated to have sent a mail stating that his child has not been able to properly engage in online classes. In other words none of the petitioners had a case that they have suffered in their studies due to lack of gadgets or connectivity. It is too late in the day to raise such contentions before this Court 30. The contention of the petitioner in W.P.(C) No.15971 2021 that the decision to conduct the Plus One exam is ultra vires the provisions of Act 505 cannot be accepted. I find that by Ext.P5 order dated 15.6.2021 the DMA has permitted the conduct of all National and State level public exams including Sports Section Trials from the date of the order. The scheduling of the examination was from 6.9.2021 to 16.9.2021 and no exception can be taken on the same. WP(C)Nos.13129 & 15971 OF 2021 31. I also find that a writ petition was filed in Public Interest as WP C) No.17399 2020 seeking to quash the Government Circular dated 18.8.2021 as per which the First Year Higher Secondary Model examination was scheduled to be held from 3.8.2021 to 4.9.2021 and also to quash the notification which is impugned in this Writ Petition as per which the conduct of the main exam was scheduled. A Division Bench of this Court refused to interfere holding that the petitioner in the said writ petition had failed to establish any arbitrariness or illegality on the part of the respondents. Having considered the matter from all perspectives I am of the considered opinion that the petitioners have not made out any case for interference. These writ petitions are accordingly dismissed. RAJA VIJAYARAGHAVAN V WP(C)Nos.13129 & 15971 OF 2021 APPENDIX OF WP(C) 15971 2021 PETITIONER S EXHIBITS COPY OF THE CERTIFICATE ISSUED BY THE UMBICHY HAJEE HIGHER SECONDARY SCHOOL COPY OF THE NOTIFICATION DATED 28.5.2021 ISSUED BY RESPONDENTS 2 AND 3 COPY OF THE ORDER G.O.(RT) NO.404 2021 DMD DATED 6.5.2021 ISSUED BY THE 4TH COPY OF THE ORDER G.O.(RT) NO.448 2021 DMD DATED 31.5.2021 ISSUED BY THE 4TH COPY OF THE ORDER G.O.(RT) NO.467 2021 DMD DATED 15.6.2021 ISSUED BY THE 4TH COPY OF THE TPR DATA FROM 8.5.2021 TO 20.6.2021 MAINTAINED IN THE WEBSITE OF GOVERNMENT OF KERALA COPY OF THE CATEGORIZATION OF LOCAL SELF GOVERNEMNT ISSUED BY DISTRICT COLLECTOR COPY OF THE KERALA LEGISLATIVE ASSEMBLY PROCEEDINGS IN ADJOURNMENT MOTION DATED COPY OF THE RELEVANT EXTRACT OF THE PROCEEDINGS BEFORE KERALA LEGISLATIVE ASSEMBLY ON 8.6.2021 COPY OF THE ORDER DATED 24.6.2021 IN WPC 620 OF 2021 OF HON BLE SUPREME COURT OF WP(C)Nos.13129 & 15971 OF 2021 APPENDIX OF WP(C) 13129 2021 PETITIONERS EXHIBITS TRUE COPY OF THE NOTIFICATION NO. EX 11 1 24300 HSE 2020(1) DATED 28.5.2021 OF THE 1ST RESPONDENT TRUE COPY OF THE ORDER DATED 24.6.2021 OF THE HON BLE SUPREME COURT IN I.A.NO.67564 2021 IN WP(C) 620 2021 TRUE COPY OF THE REPRESENTATION DATED 25.5.2021 SEND VIA EMAIL BY THE 1ST PETITIONER THROUGH HER GUARDIAN TO THE 1ST RESPONDENTS EXHIBITS A TRUE COPY OF THE CIRCULAR DATED 02 06 2021 ISSUED BY THE DIRECTOR GENERAL

In child custody matters, rather than the entitlement of either of the parents, what is of paramount importance is the wellbeing and welfare of the child: Supreme Court

The appellant along with maternal grandmother of Aditya (child of both appellant and respondent) will be entitled, at the expense of the respondent to spend seven days in Kenya once a year. The directions thus contemplated that in a year, the appellant will have sufficient physical contact and interaction as well as benefit of stay with Aditya. The Court held in, Smriti Madan Kansagra v.  Perry Kansagra, (CIVIL APPEAL NO. 3559 OF 2020) The court by majority judgment dated 28.10.2020 held that, the custody of Aditya Vikram Kansagra is handed over by his mother Smriti Madan Kansagra, to the father Perry Kansagra, subject to the directions. Wherein, the respondent was directed to obtain a mirror order from the concerned court in Nairobi to reflect the directions contained in the judgment, within a period of 2 weeks from the date of judgment. Also, Smriti will be at liberty to engage with Aditya on a suitable video-conferencing platform for one hour over the weekends; further, Aditya is at liberty to speak to his mother as and when he desires to do so. Also, Smriti would be provided with access and visitation rights for 50% once in a year during the annual vacations of Aditya, either in New Delhi or Kenya, wherever she likes, after due intimation to Perry. Not only this, Perry will bear the cost of one trip in a year for a period of one week to Smriti and her mother to visit Aditya in Kenya during his vacations. The costs will cover the air fare and expenses for stay in Kenya. However, Smriti will not be entitled to take Aditya out of Nairobi, Kenya without the consent of Perry. On 30.10.2020, the respondent moved an application in the High Court of Kenya at Nairobi seeking registration of the Judgment and for obtaining ‘Mirror Order’ The counsel for appellant contended that, India and Kenya are not reciprocating countries and, as such, the provisions of the Act will not be applicable. In any case, by virtue of Section 3(3) of the Foreign Judgments (Reciprocal Enforcement) Act, CAP, 43 enacted by the Parliament of Kenya, nothing in the Act will apply to proceedings in connection with “the custody or guardianship of children”. However, learned Advocate for the respondent has relied upon the provisions of the Judicature Act of Kenya which empower the High Court of Kenya to exercise jurisdiction in accordance with common law principles and doctrine of equity and upon Article 2(5) of the Constitution of Kenya, 2010, which recognises the general rules of international law as forming part of laws of Kenya. The court was of the view that, “the Order passed by the High Court of Kenya respectfully deserves and must be shown due deference. Nothing turns on the form and format of the Order, so long as the High Court of Kenya was apprised of all the facts, and the context in which it was approached, for compliance of the directions passed by this Court in the Judgment. Since the registration of the Judgment passed by this Court has been done under the orders of the High Court of Kenya, we accept the submissions made by the respondent. In our view, the registration of the Judgment is sufficient compliance of the direction to obtain a Mirror Order issued from a competent court in Kenya. The fact that the registration was given at the instance of the respondent and the unconditional undertaking given by the respondent to this Court, are sufficient compliance of the directions issued by this Court.”

IN THE CIVIL APPELLATE JURISDICTION MISCELLANEOUS APPLICATION NO. 2140 OF 2020 CIVIL APPEAL NO. 3559 OF 2020 SMRITI MADAN KANSAGRA MISCELLANEOUS APPLICATION NO. 2170 OF 2020 CIVIL APPEAL NO. 3559 OF 2020 O R D E R By majority judgment dated 28.10.2020 Civil Appeal No.35520 was dismissed with certain directions. Paragraphs 20 to 22 of the Judgment for facility are quoted “20. In view of the aforesaid discussion we consider it just and appropriate that the custody of Aditya Vikram Kansagra is handed over by his mother Smriti Madan Kansagra to the father Perry Kansagra subject to the following directions which will take effect in supersession of the Orders passed by the Courts below a) We direct Perry Kansagra to obtain a mirror order from the concerned court in Nairobi to reflect the directions contained in this judgment within a period of 2 weeks from the date of this judgment. A copy of the Order passed by the court in Nairobi must be filed before this Court b) After the mirror order is filed before this Court Perry shall deposit a sum of INR 1 Crore in the Registry of this Court which shall be kept in an interest bearing fixed deposit accountfor a period of two years to ensure compliance with the directions contained in this judgment If this Court is satisfied that Perry has discharged all his obligations in terms of the aforesaid directions of this Court the aforesaid amount shall be returned with interest accrued thereon to the Respondent c) Perry will apply and obtain a fresh Kenyan passport for Aditya Smriti will provide full co operation and not cause any obstruction in this behalf d) Within a week of the mirror order being filed before this Court Smriti shall provide the Birth Certificate and the Transfer Certificate from Delhi Public School to enable Perry to secure admission of Aditya to a School in e) Smriti will be at liberty to engage with Aditya on a suitable video conferencing platform for one hour over the weekends further Aditya is at liberty to speak to his mother as and when he desires to do so f) Smriti would be provided with access and visitation rights for 50% once in a year during the annual vacations of Aditya either in New Delhi or Kenya wherever she likes after due intimation to Perry g) Perry will bear the cost of one trip in a year for a period of one week to Smriti and her mother to visit Aditya in Kenya during his vacations. The costs will cover the air fare and expenses for stay in Kenya h) Smriti will not be entitled to take Aditya out of Nairobi Kenya without the consent of i) We direct Perry and Smriti to file Undertakings before this Court stating that they would abide and comply with the directions passed by this Court without demur within a period of one week from the date of 21. As an interim measure we direct that till such time that Perry is granted full custody of the child he will be entitled to unsupervised visitation with overnight access during weekends when he visits India so that the studies of Aditya are not disturbed. Perry and his parents would be required to deposit their passports before the Registrar of this Court during such period of visitation. After the visitation is over the passports shall be returned to them 22. This appeal shall be listed before the Court after a period of four weeks to ensure compliance with the aforesaid directions and on being satisfied that all the afore stated directions are duly complied with the custody of Aditya Vikram Kansagra shall be handed over by his mother Smriti Kansagra to the father Perry Kansagra.” Direction issued in paragraph 20 as stated above was modified by a subsequent Order dated 03.11.2020 passed in M.A No.20620 moved by the respondent who was permitted to take Aditya to Kenya on the strength of a one time travel document issued by the High Commission of Kenya in New Delhi and to apply for and obtain a Kenyan Passport for Aditya after his arrival in Kenya On 30.10.2020 the respondent filed an undertaking in this Court stating that he would abide by and comply with all the directions contained in the Judgement without demur and in letter and spirit Similarly the appellant has filed an undertaking dated 05.11.2020 to abide by and comply with the directions passed by this Court without demur On 30.10.2020 the respondent moved an application in the High Court of Kenya at Nairobi seeking registration of the Judgment and for obtaining ‘Mirror Order’. The title of the application and the opening recitals were: “REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI MISCELLANEOUS APPLICATION NO. ____ OF 2020 IN THE MATTER OF FOREIGN JUDGMENTSSections 4 22 113 of the Children Act and Articles 53 of The Constitution of Kenya 2010 the Inherent Powers of the Court and all Enabling Provisions of the Law LET ALL PARTIES CONCERNED attend the Honourable Judge in Chambers for the hearing of this application which is issued on the application of PERRY KANSAGRA of Post Office Box Number 76817 00620 Nairobi for orders 1. THAT this application be certified as urgent deserving priority hearing and directions ex parte in the first 2. THAT the judgment delivered by the Supreme Court of India in Supreme Court Civil Appeal No.35520 Smriti Madan Kangagra V. Perry Kansagra 3. THAT further or other orders be granted so as to give effect to the orders of and in compliance with judgment of the Supreme Court of India made on 28th After referring to the directions issued by this Court the application stated “7. That the application is brought in the best interest of the child and to facilitate his return to Kenya to be reunited with his father and family 8. That the orders sought are necessary to facilitate the taking of such other steps and proceedings as ordered by the Supreme Court in India….” The Order dated 09.11.2020 passed by the High Court of Kenya at Nairobi on the aforestated application was: “REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI LAW COURTS HCFOS EO31 OF 2020 IN THE MATTER OF FOREIGN JUDGMENTS RECIPROCAL ENFORCEMENT) ACT CAP 43 OF THE LAWS OF KENYA IN THE MATTER OF AN ORDER OF THE ISSUED ON 28 th OCTOBER 2020 IN THE MATTER OF ADITYA VIKRAM KANSAGRAthat he shall continue to submit to the jurisdiction of the Indian Courts duly filed by Perry in the High Court and relied upon by him in Supreme Court kindly be accepted e. Perry’s mother’s undertaking dated 27.02.2020given before the High Court and duly relied upon in Supreme Court may kindly be accepted II. Directions in the best interest of Aditya Re schooling and education Perry be directed to furnish Aditya’s school reports and activity reports to Smriti b. Perry to inform Smriti about the Parent Teacher Meetings and other functions and activities in school and Smriti to have liberty to visit Aditya’s school attend school events and interact with the school teachers. Smriti’s contact details to be furnished to c. Smriti be consulted informed if Aditya’s school is III. Directions in the best interest of Aditya Re Continuance of emotional connection with Mother Smriti be permitted to have the temporary custody visitation of Aditya during easter vacation in addition to the summer and winter vacation and Smriti be permitted to take Aditya abroad for holidays. Perry or grandparents to drop Aditya to India and pick him b. Smriti be allowed to visit Kenya every two months and stay with Aditya for a week. Cost of Smriti’s stay and travel be taken care of by Perry c. Smriti to have liberty to meet Aditya on his birthday d. Aditya to have a video call with extended family members on the maternal side cousins and friends twice a month IV. Directions in best interest of Aditya Re: Welfare a. Perry to keep Smriti informed about Aditya’s health and medical issues and share medical reports with Smriti In case of medical emergency Perry to immediately inform Smriti. All medical decisions regarding Aditya be taken in consultation with Smriti b. This Hon’ble Court may keep the matter pending and Aditya be produced before the Hon’ble Court for an evaluation every six months for the next 4 yearsWith regard to the matter at placitum ‘b’ the learned counsel for the respondent has fairly accepted the ii) With regard to the matter at placitum ‘c’ as against 10 minutes a day what has been granted is one hour over the week end. Thus as against 70 minutes in a week what has been granted is 60 minutes over the weekends which will be sufficiently long and a comprehensive interaction. It has also been directed that the child will be at liberty to speak to 13 SCC 231 Page 57 See Page 72 his mother as and when he desires to do so. Therefore in our view the directions issued by this Court with regard to this issue do not call for any modification. iii) With regard to the issue at placitum ‘d’ the learned counsel for the respondent has accepted that having given an undertaking to this Court the respondent has subjected himself to the jurisdiction of this Court. Mr. Shyam Divan learned Senior Advocate for the appellant however relied upon paragraph 3 of the undertaking dated 02.03.2020 given to the High Court to emphasize the absence of such clear stipulation in the present undertaking regarding submission to the jurisdiction of the Indian Courts. Though we accept the submission made by the learned counsel for the respondent it is hereby clarified that paragraph 3 of the undertaking given by respondent dated 02.03.2020 to the High Court shall continue to be operative in addition to the undertaking given to this Court. In the context of the matter mentioned against placitum ‘e’ it must be stated that this Court did not deem it appropriate to bind the paternal grandmother of Aditya because of the various other directions issued in the Judgment including the one requiring the respondent to obtain a Mirror Order. The High Court had not insisted upon furnishing of any Mirror Order and therefore the direction to have the affidavit of the grandmother who is an Indian citizen was issued. However the direction to obtain a Mirror Order was taken to be sufficient security by this Court to take care of any apprehension that the respondent may not fulfil the obligations cast upon him by the We now turn to the issue regarding Mirror Order. It is submitted by Mr. Divan learned Senior Advocate for the appellant that what is contemplated by the directions issued in the Judgment is a binding and valid Mirror Order. In his submission the Mirror Order must in all respects be one which is fully enforceable and on which complete reliance can be placed by this Court. He has invited our attention to the Foreign JudgmentsAct CAP 43 enacted by the Parliament of Kenya to make provisions for the enforcement of judgments given in countries outside Kenya which accord reciprocal treatment to judgments given in Kenya and for other purposes in connection therewith. The submissions of Mr. Divan on this issue are: India and Kenya are not reciprocating countries and as such the provisions of the Act will not be applicable In any case by virtue of Section 3(3) of the Act nothing in the Act will apply to proceedings in connection with “the custody or guardianship of children” In terms of Section 6(1) of the Act the registration of a judgment rendered by a foreign court can be granted if “the High Court is satisfied as to the proof of matters required by this Act and any rules of court” Since the Act itself will not apply to proceedings in connection with the custody or guardianship of children the registration of the Judgment under the Act will be without any consequence in law Any submission about validity of registration can be taken by a judgment debtor in terms of Section 10 of the Act and have the registration set aside It is thus submitted that mere registration of the Judgment will not make it enforceable. Reliance is placed on a legal opinion given by Ms Rubeena Dar a practising lawyer in Kenya. A copy of Mirror Order dated 14.05.2018 issued by Superior Court J.D. of Stamford Norwalk pursuant to the directions of the High Court of Delhi in Dr. Navtej Singh vs. State of NCT and another2 is also relied upon to submit what a Mirror Order must normally contemplate and provide. The relevant portion of said Order dated 14.05.2018 reads: “1. Plaintiff’s Motion for Order is granted on the application to Show Cause docketed at #114.00 2. The prior orders for sole physical and legal custody in favour of the Plaintiff shall be recalled 3. The prior orders remain in place that Jasmeet Kaur is to return immediately to Connecticut with the minor 4. The minor children shall remain in the custody of Jasmeet Kaur and the Plaintiff shall have reasonable interim visitation with the minor children as agreed or Court ordered upon the minor children’s return with Jasmeet Kaur to Connecticut until further custody orders are determined by the Connecticut Superior Court after granting adequate opportunity of hearing to both the parties 5. That the Affidavit of Undertaking of the Plaintiff confirming how he has conformed his conduct to the Order of the High Court of Delhi at New Delhi on March 6 2018 submitted as Exhibit B to the Motion for Orderis hereby approved and 6. That Attorney William Taylor is hereby appointed as escrow agent pursuant to Exhibit C to the Motion for OrderSCC OnLine Del 7511 which was affirmed by this Court in17 accordance with common law principles and doctrine of equity and upon Article 2(5) of the Constitution of Kenya 2010 which recognises the general rules of international law as forming part of laws of Kenya. The opinion given by M s. GMC Advocates is also relied upon the relevant portion of which reads as under: “Reference may additionally be had to the provisions of Sections 4 22 and 113 of the Children’s Act 2010 and Article 53 of the Constitution of Kenya 2010 which provide that the best interest and welfare of the child is paramount which would justify grant of orders in the nature of mirror orders A Mirror Order is issued by another Court which contains the same terms as those that are contained in the Order being mirrored. It is the practice in Courts in Kenya that a Mirror Order is granted by registration of entire Judgment of the Foreign Court by the Court in Kenya. This is done so as to avoid any variation in context form or substance The registration of the Foreign Judgment by the Court of Kenya is itself the Mirror Order. Nothing further is Reference may be had to Judgment In Re Matter of I W P[2013] 3KLR) where in a matter concerning a judgment passed by foreign court in relation to custody and guardianship of a minor the High Court of Kenya at Nairobi had granted a mirror order Having regard to the law applicable in Kenya the application for grant of a mirror order in accordance with the directions contained in the judgment dated 28 10 2020 passed by supreme Court of India in case titled as “Smriti Madan Kansagra vs. Perry Kansagra” was made on 09 11 2020 before the High Court of Kenya at Nairobi. The application was an Ex Parte application as the orders sought were non contentious in nature given the fact that the matter was extensively and conclusively dealt with by the Supreme Court of India and only Mirror Order was sought from High Court of Kenya at Nairobi The application for grant of a mirror order was allowed by the High Court and the judgment dated 28 10 2020 passed by Supreme Court of India in case titled as “Smriti Madan Kansagra vs. Perry Kansagra” was registered in its entirety by order dated 09 11 2020 Accordingly the order dated 09 11 2020 issued by High Court of Kenya at Nairobi in case bearing No HCFOS E0320 whereby the judgment dated 28 10 2020 passed by Hon’ble Supreme Court of India in case titled as “Smriti Madan Kansagra vs. Perry Kansagra” CA No. 3559 2020] has been registered is a mirror order in compliance with the said judgment.” Having considered the rival submissions in our view the Order passed by the High Court of Kenya respectfully deserves and must be shown due deference. Nothing turns on the form and format of the Order so long as the High Court of Kenya was apprised of all the facts and the context in which it was approached for compliance of the directions passed by this Court in the Judgment. Since the registration of the Judgment passed by this Court has been done under the orders of the High Court of Kenya we accept the submissions made by the respondent. In our view the registration of the Judgment is sufficient compliance of the direction to obtain a Mirror Order issued from a competent court in Kenya. The fact that the registration was given at the instance of the respondent and the unconditional undertaking given by the respondent to this Court are sufficient compliance of the directions issued by this Court Insofar as the matter mentioned at placitum ‘a’ is concerned it is submitted by Mr. Divan learned Senior Advocate that the Family Court and the High Court had granted certain reliefs to the appellant even while granting custody to the respondent. A comparative chart of the directions issued by the High Court and those in the Judgment has also been presented as under: “ Order of High Court Undertaking of mother of Perry who holds Indian Citizenshipin para 20 of the Judgment the appellant shall be allowed every year one more trip for a week financed by the respondent coinciding with the Birthday of Adityaof Para 20 of the Judgment. Apart from the opportunity of enjoying the company of Aditya these interactions will help in maintaining the bond between the son and the mother. In the circumstances we hold and direct: A) Except for direction issued earlier in paragraph 20 of this Order and matters accepted by the learned counsel for the respondent no orders are called for in respect of any of the directions sought for by the appellant B) All the directions issued in paragraph 20 of the Judgment hold good with the addition of the one issued in paragraph 20 of this Order C) A further affidavit shall be filed by the respondent within three days of this Order that he shall abide by this Order and the additional direction issued in paragraph 20 of this D) The respondent is not required to obtain any fresh Mirror Order in respect of the aforesaid additional direction before Aditya is taken to Kenya and it shall be sufficient if an appropriate application to have this Order registered in the same manner as the Judgment was registered is preferred within two weeks of Aditya reaching Kenya and the copy of such registration is thereafter filed in this Court at the earliest E) After filing of the further affidavit as stated above the respondent shall be at liberty to take Aditya to Kenya as directed earlier in the Judgment 22. Miscellaneous Application No.2140 of 2020 stands disposed of accordingly without any order as to costs. Miscellaneous Application No.2170 of 2020 in Civil Appeal No.35520does not call for any further directions and also stands Uday Umesh Lalit New Delhi December 08 2020

 The Judge is not exercised discretion to allow judicial interference beyond the procedure established under the enactment: High court of Sikkim

The Judge is not exercised discretion to allow judicial interference beyond the procedure established under the enactment, and the same issue was held in the judgement passed by a division bench decision HON’BLE MR. JUSTICE BISWANATH SOMADDER, CHIEF JUSTICE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE. In the matter M/S LINKWELL TeleSystems PVT. LTD.VERSUS STATE OF SIKKIM & ORS.[ WA No. 03/2021 ] dealt with an issue mentioned above. This appeal, preferred by the writ petitioner, arises in respect of a judgment and order dated 09th June 2021, passed by a learned Single Judge in W.P.(C) No.23 of 2021 (M/s Linkwell Telesystems Pvt. Ltd. vs. The State of Sikkim & Ors.). By the impugned judgment and order, the learned Single Judge was pleased to dismiss the writ petition for reasons stated therein. In light of the detailed discussions that have emanated supra, and in view of the obtaining facts and circumstances in the instant matter as reflected hereinabove, I am of the considered opinion that the Petitioner has failed to put forth any exceptional circumstances for invoking the Writ jurisdiction of this Court under Article 226 of the Constitution. The court perused the facts and arguments presented in the case So far as the subsequent award of contract to the private respondent no.3 is concerned, in the facts of this case, that cannot be the subject matter to be decided by the writ Court. Clearly, in the facts of the instant case, the appellant/writ petitioner’s remedies are elsewhere.

HIGH COURT OF SIKKIM : GANGTOK COURT NO.1 Record of Proceedings WA No. 03 2021 M S LINKWELL TELESYSTEMS PVT. LTD. APPELLANTSTATE OF SIKKIM & ORS. RESPONDENTFor Appellant For Respondents No.1 : 2 For Respondent No.3 Mr. Sajal Sharma Advocate. Mr. Sudesh Joshi Addl. Advocate General. Mr. Yadev Sharma Government Advocate. Mr.Sujan Sunwar Asst. Government Advocate Mr. Sangay Gyurmay Bhutia Advocate. Date: 10 12 2021 HON’BLE MR. JUSTICE BISWANATH SOMADDER CHIEF JUSTICE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN JUDGE JUDGMENT:Let a photocopy of the receipt issued by the bank indicating payment of costs of Rs.5 000 in terms of our order dated 03rd December 2021 be taken on record. This appeal preferred by the writ petitioner arises in respect of a judgment and order dated 09th June 2021 passed by a learned Single Judge in W.P.(C) No.221Briefly the case of the petitioner is that vide Agreement dated 04.05.2017 the Petitioner was awarded the Contract for the purpose of supply and maintenance of POS Devices POS application its installation maintenance integration with the TPDS Software and Automation of Fair Price Shops of the 1421 Fair Price Shops in Sikkim. HIGH COURT OF SIKKIM : GANGTOK Record of Proceedings COURT NO.1 ii) As per Clause 2 of the said Agreement the Petitioner was to adhere to the Request for ProposalGuidelines and the Service Level Agreement also formed a part of the Agreement. iii) Clauses 2 and 8 of the Agreement were to be read together to determine the rights and liabilities of the parties. iv) Clause 7.9 of the RFP contained the Arbitration Agreement as defined under Section 7 of the Arbitration and Conciliation Act 1996. The relevant portion of Clause of 7.9 of the RFP inter alia reads as under “7.9. Resolution of Disputes. FCS&CA Department and the successful bidders shall make every effort to resolve amicably by direct informal negotiation any disagreement or dispute arising between them under or in connection with the contract. Any dispute or difference whatsoever arising between the parties to this Contract out of or relating to the meaning scope operation or effect of this Contract or the validity of the breach thereof which cannot be resolved shall be referred to a sole Arbitrator to be appointed by mutual consent of both the parties herein. If the parties cannot agree on the appointment of the Arbitrator within a period of one month from the notification by one party to the other of existene of such dispute then the Arbitrator shall be nominated by the Secretary Law Department Government of Sikkim The work was to be taken up by the Petitioner in a phased manner as per the terms and conditions specified in Order No.1804 FCS&CA dated 29.03.2017. The Petitioner commenced the works accordingly. vi) By a Letter dated 25.05.2020addressed to the State Respondent No.2 by the Petitioner the Petitioner raised a Bill of Rs.3 65 01 842.00 only and requested the State Respondent No.2 to release the pending payment within seven days to enable them to run the project besides informing them that the HIGH COURT OF SIKKIM : GANGTOK Record of Proceedings COURT NO.1 Petitioner may not be able to manage operations beyond 01.06.2020 unless the payments were made over to them for the Bills raised. vii) From the month of June 2020 the Petitioner stopped all works granted to them vide the Contract mentioned supra. viii) That the State Respondent No.2 issued Show Cause Annexure 10) bearing No.753 F&CSD dated 11.01.2021 reminding the Petitioner that the State Respondent No.2 had released a sum of Rs.1 44 87 880.00 only in March 2017 in favour of the Petitioner as mobilization advance. ix) The Show Cause also stated that from the month of June 2020 without informing the State Respondents No.1 and 2 the Petitioner stopped providing their services resulting in a complete halt in the Public Distribution System through EPOS Machine at Fair Price Shops. That further the unilateral suspension of services is ultra vires the Service Level Agreement. That the discontinuance of services by the Petitioner caused a set back to the State Respondents No.1 and 2 for timely implementation of the One Nation One Ration Card Scheme hence they were to explain as to why the Agreement entered on 04.05.2017 should not be terminated. x) By a Letter also of the same date i.e. 11.01.2021 Annexure 11) the State Respondent No.2 agreed to release payments which were due to the Petitioner in a phased manner. xi) It is the Petitioner’s case that on 16.01.2021 the response to the Show Cause was given by them. xii) Despite the response to the Show Cause the services of No.801 F&CSD 2021 dated 22.01.2021. xiii) Having thus terminated the services of the Petitioner the Respondent No.2 on 02.02.2021 issued “Notice Inviting E Tender” from eligible Bidders for the same works that had earlier been awarded to the Petitioner i.e. Automation of Fair Price Shops in Sikkim. xiv) Pursuant to the E Tender the Respondent No.3 was awarded the Contract and Work Order issued on 09.03.2021. xv) On 24.04.2021 the Petitioner was before the Learned Commercial Court East Sikkim at Gangtok seeking reliefs under Section 9 of the Arbitration and Conciliation Act 1996 the prayers being “i. Kindly issue an ad interim ex parte injunction order to restrain the Respondent from accepting any bid in relation to the Notice Inviting E Tender dated 02.02.2021. ii. Kindly issue an order of injunction to restrain the Respondent from accepting any bid in relation to the Notice Inviting E HIGH COURT OF SIKKIM : GANGTOK Record of Proceedings COURT NO.1 Tender dated 02.02.2021 until the conclusion of determination of the controversy between the parties by an Arbitrator. iii. Kindly pass an order quashing the Show Cause Notice bearing No.753 F&CSD dated 11.01.2021. iv. Kindly pass an order quashing Notice of Termination of Service issued by the Secretary Food and Civil Supplies Department bearing No.801 F&CSD 2021 dated 22.01.2021. v. Any other order orders that this Hon’ble Court deems fit to pass in the interests of justice.” this Court The reliefs so claimed supra are similar to the prayers made before xvi) Vide an ex parte ad interim Order dated 27.04.2021 the Learned Commercial Court restrained the State Respondent No.2 herein the Secretary Food and Civil Supplies Department who was the Respondent therein from accepting any Bid in connection with the E Tender floated by them on 02.02.2021. xvii) Later after hearing both parties by a subsequent Order dated 27.05.2021 the Learned Commercial Court vacated its earlier ex parte ad interim Order dated 27.04.2021. xviii) Learned Counsel for the Petitioner submits that subsequent to the Order dated 27.05.2021 the Petitioner invoked the Arbitration Clause of the Agreement dated 04.05.2017 and sought appointment of an Arbitrator. The suggested Arbitrator was not agreeable to the State Respondent No.2 and hence further steps in this context are being taken and the process is underway.” The learned Single Judge after considering the respective submissions advanced by the parties came to the following conclusion: “5. It may relevantly be stated here that this Court is aware that the existence of an Arbitration Clause would not divest the High Court of its jurisdiction under Article 226 of the Constitution neither is the exercise of Writ jurisdiction under Article 226 in a contractual matter ruled out. However this jurisdiction is invoked when there is no efficacious alternative remedy for the Petitioner. 6. The Hon’ble Supreme Court in Bhaven Construction through Authorised Signatory Premjibhai K. Shah vs. Executive Engineer Sardar Sarovar Narmada Nigam Ltd. and Another1 referred to the ratio in Nivedita Sharma v. Cellular Operators Association of India2 and inter alia observed as follows HIGH COURT OF SIKKIM : GANGTOK Record of Proceedings COURT NO.1 “17. In any case the hierarchy in our legal framework mandates that a legislative enactment cannot curtail a Constitutional right. In Nivedita Sharma v. Cellular Operators Association of India 14 SCC 337 this Court referred to several judgments and held: “11. We arguments submissions. There cannot be any dispute that the power of the High Courts to issue directions orders or writs including writs in the nature of habeas corpus certiorari mandamus quo warranto and prohibition under Article 226 of the Constitution is a basic feature of the Constitution and cannot be curtailed by parliamentary legislation L. Chandra Kumar v. Union of India 3 SCC 261. However it is one thing to say that in exercise of the power vested in it under Article 226 of the Constitution the High Court can entertain a writ petition against any order passed by or action agency instrumentality or any public authority or order passed by a quasi judicial body authority and it is an altogether different thing to say that each and every petition filed under Article 226 of the Constitution must be entertained by the High Court as a matter of course ignoring the fact that the aggrieved person has an effective alternative remedy. Rather it is settled law that when a statutory forum is created by law for redressal of grievances a writ petition should not be entertained ignoring the statutory dispensation.” emphasis supplied) 18. It is therefore prudent for a Judge to not exercise discretion to allow judicial interference beyond the procedure established under the enactment. This power needs to be exercised in exceptional rarity wherein one party is left remediless under the statute or a clear ‘bad faith’ shown by one of the parties. This high standard set by this Court is in terms of the legislative intention to make the arbitration fair and 7. In light of the detailed discussions that have emanated supra and in view of the obtaining facts and circumstances in the instant matter as reflected hereinabove I am of the considered opinion that the Petitioner has failed to put forth any exceptional circumstances for invoking the Writ jurisdiction of this Court under Article 226 of the Constitution. 8. The Writ Petition is accordingly dismissed and disposed In an Intra Court Mandamus appeal interference is usually warranted only when palpable infirmities or perversities are noticed on a plain reading of the judgment and order. In the facts of the instant case on a plain reading of the impugned judgment and order we do not notice any such palpable infirmity or perversity. That apart and in HIGH COURT OF SIKKIM : GANGTOK Record of Proceedings any event the impugned judgment and order is supported with cogent COURT NO.1 and justifiable reasons. It is patently evident that the learned Single Judge has dismissed the writ petition while choosing not to exercise the writ Court’s discretion to entertain the petition upon considering the facts of the case. 6. As stated hereinbefore it would be evident from the relevant facts of the case that the contract between the appellant writ petitioner and the State respondent no.2 stood terminated on 22nd January 2021. If this termination is wrongful it is always open to the appellant writ petitioner to invoke the arbitration clause which admittedly is in existence in so far as the contract in question is concerned. At this juncture the learned Additional Advocate General representing the State respondent no.2 informs this Court that the appellant writ petitioner has already invoked the arbitration clause. 7. So far as the subsequent award of contract to the private respondent no.3 is concerned in the facts of this case that cannot be the subject matter to be decided by the writ Court. Clearly in the facts of the instant case the appellant writ petitioner’s remedies are elsewhere. For reasons stated above we do not find any merit in the instant appeal which is liable to be dismissed and stands accordingly dismissed along with all connected applications. Bhaskar Raj Pradhan) Judge Chief Justice

The securities appellate tribunal recorded the differences between original noticee and appellate noticee – THE SECURITIES AND EXCHANGE BOARD OF INDIA

The securities appellate tribunal recorded the differences between original noticee and appellate noticee – THE SECURITIES AND EXCHANGE BOARD OF INDIA An adjudication order was passed against Rajesh Agarwal (original noticee) levying a penalty of Rs. 5,00,000/-  under Section 15HA of the SEBI Act, 1992, for violation of Section 12A (a), (b) and (c) and of Regulations 3 (a), (b), (c) and (d), as well as 4 (1), (2) (a), (e) and (g) of the SEBI regulation,2003 but the Hon’ble Securities Appellate Tribunal remitted the order for fresh consideration because the Rajesh Agarwal(appellate noticee) has submitted some different identification then the original noticee hence the difference has to be considered between the original and appellate noticee .the matter was adjudicated by MANINDER CHEEMA ADJUDICATING OFFICER in the [ADJUDICATION ORDER NO. Order/MC/VS/2021-22/14853] The show cause notice was sent to original noticee and to appellate noticee on the addresses provided and some enquires were conducted to know the difference and it is noted that since documents submitted to the SAT by SEBI as well as the Appellant Noticee, the Hon’ble SAT remitted the matter to the undersigned for fresh consideration after considering the Noticee response. The issues arising before the officer is whether the Appellant Noticee is a person different from the original Noticee to which the SCN was issued and against whom the order was passed. appellate proceedings were conducted, and it occurred that certain documents were sought from Beeline Broking Ltd., the broker of the original Noticee who executed the impugned trades. These documents have been produced by the Appellant Noticee before the officer as part of papers provided to SAT. some other documents were presented and it was evident that there are irregularities in the account opening forms of RK Stockholding and Beeline brokers. From the submissions made by the appellate noticee it was evident that  a computer resource has been used to impersonate the Noticee and use his PAN and other details to open and operate fraudulent demat and trading accounts with Beeline Broking and RK Stockholding .from the above submission the doubt is clear that  the Appellant Noticee who appeared for the hearing during adjudication proceedings leading to passing of adjudication order dated 27.08.2020 and appealed against it before the Hon’ble SAT is not the same person as the original Noticee who carried out the impugned trades. It is clarified that the appellate noticee is a different person from the original noticee and did not carry out the impugned trades and hence there is no violation alleged against him and the said order is not applicable to the appellate noticee. Taking into consideration the above submission the order dated 27.08.2020 levying a penalty of Rs. 5,00,000/- on the original Noticee i.e., Rajesh Agarwal continues to be applicable and not applicable to the appellant noticee. Click here to read the Order

In respect of 492001 BEFORE THE ADJUDICATING OFFICER SECURITIES AND EXCHANGE BOARD OF INDIA ADJUDICATION ORDER NO. Order MC VS 2021 22 14853] UNDER SECTION 15 IOF SECURITIES AND EXCHANGE BOARD OF INDIA ACT 1992 READ WITH RULE 5 OF SEBIRULES 1995 Rajesh Agarwal having address at H No. A 8 Near Siddheshwari Temple Radhaswaminagar Bhatagoan Chowk Raipur Chhattisgarh in the matter of Vani Commercials Ltd. 1. Securities and Exchange Board of Indiapassed adjudication order no. Order MC VS 2020 21 8762 8775 dated August 27 2020 inter alia levying a penalty of Rs. 5 00 000 on Rajesh Agarwal (hereinafter referred to as “original Noticee”) under Section 15HA of the SEBI Act 1992 for violation of Section 12A (b) and and of Regulations 3(b) andas well as 4(2)(e) andof the SEBI Prohibition of Fraudulent and Unfair Trade Practices relating to the Securities Market) Regulations 2003while trading in the scrip of Vani Commercials Ltd.during the “investigation period” or the “relevant period” between May 26 2017 and October 30 2017. 2. The Hon’ble Securities Appellate Tribunalvide order dated 22.12.2021 in Appeal No. 427 of 2020 in the matter of Rajesh Agarwal v. SEBI remitted the matter to the undersigned for fresh consideration and for passing an order in respect of Rajesh Agarwal the appellant before the SAT who has the same PAN as the original Noticee but a different Driving License No. with certain other differences recorded by the Hon’ble SAT in respect of the identification documents of the original Noticee and the Appellant Noticee within six months from the date of the order. The Hon’ble SAT also directed the appellant to appear before the undersigned on January 5 2022. APPOINTMENT OF ADJUDICATING OFFICER 3. The undersigned was appointed as Adjudicating Officer vide Order dated January 4 2022 to inquire into and adjudge under Section 15HA of the SEBI Act the aforesaid matter. SHOW CAUSE NOTICE REPLY AND HEARING 4. Show Cause Notice No. EAD5 MC VS 29776 2019 dated November 11 2019 hereinafter be referred to as the SCN ) was served upon the original Noticee under Rule 4 of SEBI Rules 1995 to show cause as to why an inquiry should not be held and penalty be not imposed against the Noticee under Section 15HA of SEBI Act for the aforesaid alleged violations. 5. E mail ids. and addresses of the original Noticee were obtained from the depositories NSDL and CDSL on the basis of PAN as unique identifier. The SCN was served upon two of the e mail ids. of the original Noticee viz. rajeshagarwal1919@gmail.com and agrwlrjsh@gmail.com on 11.11.2019 while e mail sent to a third e mail id.stated to belong to this PAN as per the records of the depositories bounced back as undeliverable. Adjudication Order in respect of Rajesh Agarwal in the matter of Vani Commercials Ltd. Further as per records obtained from the website of India Post a physical copy of the SCN was delivered to the address “H. No. A 8 Near Siddheswari Temple Radhswaninagar Bhatagon Chowk Raipur Chhatisgarh 492001” provided by the depositories. A copy of the SCN sent to the other physical address attributed to the PAN of the original Noticee as per records of the depositories “204 La Citadel Flat 30 Nutan Bharat Society Alkapuri Vadodara Gujarat” returned undelivered with the comments “door locked” and “insufficient address”. Thus the SCN was successfully served upon one physical address as well as two e mail id’s attributed to the PAN of the original Noticee. 6. Vide e mail dated 27.11.2019 a reply was received from Rajesh Agarwal from an e mail id. viz. r.agarwal7176@gmail.com stating that he was a resident of “601 Aditya ‘A’ Cosmos Heritage Manpada GB Road Thane 400610” and submitting that the address “204 LA citadel Flat no 30 Nutan Bharat Soc Alkapuri Vadodara” the e mail rajeshagarwal1919@gmail.com agrlrjsh@gmail.com mentioned in the SCN did not belong to him and were not known to him. It was further submitted that all the other 13 persons Noticees Group Entities mentioned in the SCN were not known to him nor was he familiar with them. The Noticee Appellant also stated that the mobile numbers mentioned as a basis of connection with other group entities were not known to him and he was not familiar with them and he never had any mobile number “7383913574”. The Noticee also submitted that he had never ever traded in any type of securities related to VCL and that he had not carried out any trades on the dates alleged in the SCN. Noticee also submitted his demat account statementfor FY 2017 18 as obtained from HDFC Securities which did not contain any details of the impugned trades. It was submitted that the SCN had been issued to him on mistaken facts. 7. In order to confirm details of any other trading accounts or demat accounts of the Noticee and to enable re verification of all his addresses and phone numbers the Adjudication Order in respect of Rajesh Agarwal in the matter of Vani Commercials Ltd. Appellant Noticee was asked to confirm his PAN. The Noticee was also asked to confirm the date and mode of receipt of the SCN by him. However no response was received from the Appellant Noticee. 8. Further vide e mail dated 06.07.2020 a hearing notice was served upon three e mail id’s of the original Noticee as per records of NSDL and CDSL and as obtained r.agarwal7176@gmail.com rajeshagarwal1919@gmail.com and agrwlrjsh@gmail.com providing an opportunity of hearing to the original Noticee on 28.07.2020 by videoconferencing. Confirmation was also sought on 28.07.2020 vide e mail whether the Noticee will be availing the opportunity of hearing. However the Noticee did not respond to the e mails and did not avail the opportunity of hearing. 9. In the absence of the required confirmation from the Noticee vide e mail dated 14.08.2020 HDFC Securities was requested to forward PAN and KYC details for entity ID:2180785 obtained from the demat account statement forwarded by the Noticee through his e mail dated 27.11.2019. Upon observing that PAN and date of birth were those on record for the original Noticee and in the absence of any further response from the Noticee Appellant the matter was proceeded with on the basis of the KYC documents available with the undersigned. Since the PAN and date of birth on official records such as PAN card copy driving license and KYC forms were the same for the original Noticee and the Appellant Noticee an assumption was made in the absence of any further inputs from the Noticee that they were the same person. Accordingly order dated 27.08.2020 was passed levying a penalty of Rs. 5 00 000 on the original Noticee with PAN AMXPA5214B. 10. I note that on the basis of documents submitted to the SAT by SEBI as well as the Appellant Noticee the Hon’ble SAT has remitted the matter to the undersigned for fresh consideration after hearing the Noticee. Adjudication Order in respect of Rajesh Agarwal in the matter of Vani Commercials Ltd. 11. The Authorised Representative of the Appellant Noticee Advocate Mr. Amit Kakri appeared before the undersigned on 05.01.2022 and submitted the following: a) The demat account with Beeline Broking through which trades impugned in the SCN took place did not belong to the Noticee and that the Noticee has no connection with Gujarat unlike the other 13 Noticees in the matter. b) The mobile number shown for the connection did not belong to the Noticee. Further the email address and the alleged address in Gujarat was not his. c) Noticee is presently residing in Thane having permanent address at Raipur in Chattisgarh and has no friends acquaintances in Gujarat and had never even visited Gujarat in all these years. d) Noticee for the first time became aware that a Demat account had been opened in his name with Beeline Broking Limited upon receipt of the impugned order dated 27.08.2020 which recorded this fact. e) Aggrieved by the adjudication order dated 27.08.2020 passed by the learned AO the Noticee preferred Appeal 427 2020 before the Hon’ble Securities Appellate TribunalHon’ble SAT at the hearing of the Stay Application on 08.12.2020 had directed the respondent SEBI to file the documents relied upon. In reply to the aforesaid Appeal the respondent SEBI filed two different sets of KYC documents obtained from the depositories that is one set from HDFC Securitiesand the other from Beeline Broking and the same presented before SAT showed that there were contradictions in the photographs and other particulars of the Noticee. It was submitted that the Hon’ble SAT in paragraph 4 of its order dated 22.12.2021 had prima facie observed the aforesaid contradictions in the two sets of documents that had h) The Noticee came to be aware of the proceedings when the Show Cause Notice dated 11.11.2019 was delivered to his permanent address at Raipur been filed by SEBI. Chattisgarh. Adjudication Order in respect of Rajesh Agarwal in the matter of Vani Commercials Ltd. i) The Appellant could not attend the personal hearings that were scheduled in April 2020 on account of the nationwide Covid Lockdown and was unable to attend the virtual hearings that were subsequently scheduled due to inadvertence for reasons explained in the rejoinder filed by the Noticee to the reply filed by SEBI in the proceedings before SAT. Noticee wrote to Beeline Broking vide letter dated 18.09.2020 seeking details of the account with the said broker in the name of the Noticee but that Beeline Broking did not share any details with the Noticee. k) Noticee has filed police complaints alleging crimes committed against the Noticee by the said Beeline Broking Limited and by other unknown persons under IPC Sections 464 465 469 and Sections 66C & 66D of the IT Act 20000 for misuse of his PAN card and other documents. l) The Noticee undertook to submit copies of the said police complaints copies of correspondence exchange with Beeline Broking a clear copy of his PAN card and all relevant documents submitted before the Hon’ble SAT during proceedings in SAT Appeal No. 4220 within a week from the date of hearing. submitted by the Noticee: 12. Vide e mail dated 10.01.22 a compilation of the following documents was Identity Documents of Rajesh Agarwal: a. PAN Card and b. Driving b) Correspondence with Beeline Broking Limited: a. Letter by Rajesh Agarwal dated 18.09.2020 to Beeline Broking Ltd. b. Email on behalf of Rajesh Agarwal dated 18.09.2020 to Beeline Broking Ltd. c. Reply by Beeline Broking dated 29.09.2020 to Rajesh Agarwal c) Copies of police complaints filed by Rajesh Agarwal with Thane and Ahmedabad police stations Adjudication Order in respect of Rajesh Agarwal in the matter of Vani Commercials Ltd. d) Pleadings filed before the SAT in Appeal No. 4220 by the Noticee as well as SEBI e) Copies of orders passed by the Hon’ble SAT in Appeal No. 4220 13. In another hearing requested and granted on 19.01.22 the Authorised Representative of the Noticee reiterated the written submissions made by the Noticee in its rejoinder affidavit during the SAT proceedings and also referred to documents filed by SEBI in its affidavit in reply before SAT. The AR undertook to submit a copy of Aadhaar card of the present Noticee by 24.01.2022 and to confirm whether his PAN was linked to his Aadhaar. 14. Vide e mail dated 22.01.22 the AR of the Noticee submitted a copy of the Adhaar Card for verification as an additional identity document apart from PAN card and driving licence and confirmed that the Adhaar of the Noticee was linked to his income tax PAN. A request was also made for non disclosure of the Adhaar number of the Noticee in the interest of maintaining confidentiality and privacy since orders passed by the learned Adjudication Officer are public documents). 15. In the light of the above factual context the submissions and documents filed before me I now proceed to decide the case on the basis of material on record. CONSIDERATION OF ISSUES 16. The issue arising for consideration in the instant proceedings before me is whether the Appellant Noticee is a person different from the original Noticee to which the SCN was issued and against whom the order dated 27.08.2020 would be applicable. The Noticee has additionally stated that his phone number is not 7383913574 which connected the original Noticee with the connected entities. Consequently establishing the identity of the person against whom the order dated 27.08.2020 would be applicable is essential. Adjudication Order in respect of Rajesh Agarwal in the matter of Vani Commercials Ltd. 17. I note that during the adjudication proceedings conducted in respect of 14 entities including the original Noticee the SCN Hearing Notices and order were served on the address of the original Noticee as noted from KYC documentation and details obtained from CDSL and NSDL in respect of the Noticees including the Appellant Noticee. The particulars of the Noticee as available in the SCN are as follows: Rajesh Agarwal PAN AMXPA5214B) H No. A 8 Near Siddheshwari Temple Radhswaminagar Bhatagoan Chowk Raipur Chhattisgarh 492001 204 La Citadel Flat 30 Nutan Bharat Soc Alkapuri Vadodara E mail: rajeshagarwal1919@gmail.com rajesh.agarwal@tcifrieight.in 18. I note from the trade log that the original Noticee had traded through the broker Beeline Broking Ltd. The material on record contained 2 sets of addresses for the person with name Rakesh Agarwal and PAN AMXPA5214B one of Raipur Chhatisgarh and the other of Vadodara Gujarat. I also note that SCN and Hearing Notice was served on the email ids rajeshagarwal1919@gmail.com and agrwlrjsh@gmail.com belonging to the original Noticee. However no response was received from these email ids or otherwise from the original Noticee. 19. During the appellate proceedings before the Hon’ble SAT certain documents were sought from Beeline Broking Ltd. the broker of the original Noticee who executed the impugned trades. These documents have been produced by the Appellant Noticee before me as part of the papers filed before the Hon’ble SAT by SEBI in Exhibit D of its affidavit in reply. Adjudication Order in respect of Rajesh Agarwal in the matter of Vani Commercials Ltd. 20. In all the Appellant Noticee has produced 4 sets of KYC documents before me including those filed before the SAT KYC documents of Rajesh Agarwalreceived from CDSL(R.K. Stockholding)KYC data for Rajesh Agarwalreceived from NSDLKYC documents of Rajesh Agarwal obtained from Beeline Broking Ltd. KYC documents of Rajesh Agarwal obtained from HDFC Securities Ltd. note the following: 21. Upon perusal of the of the abovementioned sets of KYC documents and data I a) Date of birth of Rajesh Agarwalviz. 19.02.1971 and father’s nameare the same across all sets of documents. b) The KYC form of R.K. Stockholding Ltd. in respect of Rajesh Agarwal as obtained from CDSL mentions his phone no. as “7383913574” which connected the original Noticee with a group entity namely Dilip Sheth Noticee 8 in the SCN who was also party to the adjudication proceedings leading to order dated 27.08.2020. The address of original Noticee is that of Vadodara Gujarat. c) Driving License no. is give as address proof in the KYC form having number GJ062011008547. The signatures on the PAN card and driving license of Rajesh Agarwal in the RK Stockholding’s KYC documents are identical but different from the signature available on the rest of KYC d) The KYC documents obtained from Beeline Broking bring to light similar discrepancies. The signature of Rajesh Agarwalon the copies of the PAN card and the driving license look identical but are different from the signatures on the other pages of the KYC form including the self attestation on the copies of PAN and Driving Licence. Also signature on cancelled cheque copy is different from the self Adjudication Order in respect of Rajesh Agarwal in the matter of Vani Commercials Ltd. attestation on the copy. Further the photo on driving license is different photo on PAN card. e) Driving License No. and other details of Rajesh Agarwal in the KYC documents of Beeline Broking are the same as the Driving License details in the KYC documents of RK Stockholding. f) The mobile numberprovided by Rajesh Agarwalto Beeline Broking is the one which connected Rajesh Agarwal the original Noticee to Pattammal Murlidharan a group entity and Noticee 7 in the SCN issued in the g) In the KYC form of HDFC Securities the signatures of the applicant Rajesh Agarwalare uniform across the form the driving license copy PAN card copy and attestation signatures. However these signatures are different from the signatures of Rajesh Agarwal on the KYC forms of RK Stockholding and Beeline Broking. h) Further the photograph of the person on the driving license copy and PAN card copy of Rajesh Agarwal in the KYC documents of HDFC Securities is different from the photographs of Rajesh Agarwal on the KYC documents of RK Stockholding and Beeline Broking. i) Further the driving license no. of Rajesh Agarwalin the KYC documents of HDFC Securities is CG0420130923140 which is different from the DL No. for Rajesh Agarwal in the KYC documents of the other two brokers of the original Noticee having the Raipur Chhatisgarh address. 22. On a perusal of the documents presented by the Noticee it is evident that there are irregularities in the account opening forms of RK Stockholding and Beeline Adjudication Order in respect of Rajesh Agarwal in the matter of Vani Commercials Ltd. Broking. Therefore the depository participants and the brokers may enquire into the genuineness of the said documents and signatures of the original Noticee Rajesh Agarwalwho had trading accounts with RK Stockholding and Beeline Broking and initiate appropriate action in respect of operation of the non genuine accounts. 23. The Appellant Noticee has stated that he is a senior employee of the Transport Corporation of India which has address at 807 8th floor Windfall Tower Sahar Plaza Complex JB Nagar Andheri east Mumbai 400059 and he has only one demat account with HDFC Securities which he opened only to avail of employee stock options offered to him as a senior employee of TCI. 24. Based on the submissions of the Noticee it is seen that Rajesh Agarwal was the person charged with violation of the PFUTP Regulations for trades impugned in the SCN. However the Noticee who appealed the order dated 27.08.2020 had the same PAN AMXPA5214B but different Driving Licence No. CG0420130923140 and addresses “H. No. A 8 Near Siddheswari Temple Radhswaminagar Bhatagaon Chowk Raipur Chhatisgarh 492001” and “601 Aditya ‘A’ Cosmos Heritage Manpada GB Road Thane 40061”. 25. I also take note of the submissions made by the Appellant Noticee during the hearing on 05.01.22 and in his reply that it appears that a computer resource has been used to impersonate the Noticee and use his PAN and other details to open and operate fraudulent demat and trading accounts with Beeline Broking and RK Stockholding. In support of this contention the Noticee submitted that the Bandhan Co operative Bank account cancelled cheques enclosed with the KYC application forms of the original Noticee do not pertain to the Noticee and the Noticee has no such bank account. In this regard I note that the Appellant Noticee has stated that he has filed police complaint dated 13.12.2020 against Beeline Broking Adjudication Order in respect of Rajesh Agarwal in the matter of Vani Commercials Ltd. Ahmedabad with the Chitalsar Manpada Police Station alleging offences under Section 464 465 and 469 of the IPC 1860 read with Sections 66C and D of the Information Technology Act 2000 for misuse fabrication forgery of identity documents against Beeline Broking Ltd Ahmedabad its officials and unknown persons. An identical police complaint dated 29.12.2020 has been filed by the Noticee with the Navrangpura Police Station Ahmedabad. Further the Appellant Noticee has clarified that his Adhaar is linked with his PAN thus enabling verification of genuineness of his PAN card and trading and demat accounts and connecting his details with another unique identifierremains unchanged as being in violation of Section 12A(b) andand of Regulations 3 (b) and as well as 4 (2) (e) and of the SEBI PFUTP 27. However it is clarified that the Appellant Noticee having PAN AMXPA5214B Driving Licence No. CG0420130923140 and addresses “H. No. A 8 Near Siddheswari Temple Radhswaninagar Bhatagon Chowk Raipur Chhatisgarh 492001” and “601 Aditya ‘A’ Cosmos Heritage Manpada GB Road Thane 400061” being a person different from the original Noticee did not carry out the impugned trades and hence there is no violation alleged against him. Therefore the said order dated 27.08.2020 is not applicable to him. Accordingly the penalty in respect of the Appellant Noticee who has a trading demat account with HDFC Securities is nil. 28. In order to identity the original Noticee information was sought in terms of Rule 4 6) of the Securities and Exchange Board of IndiaRules 1995 from the following persons: a) National Securities Depository Ltd. b) Central Depository ServicesLtd. c) RK Stockholding Pvt. Ltd. d) Beeline Broking Ltd. e) SMC Global Securities Ltd. f) National Stock Exchange of India Ltd. g) Bombay Stock Exchange 29. In response to the above the following inputs were received: a) NSDL Vide e mail dated 27.01.2022 NSDL submitted that it had data in respect of 2 active beneficiary owner accounts with the said PAN HDFC Bank with client id. 39725684 opened on 19.06.2014 with the Raipur address of the Noticee AppellantBeeline Broking Ltd.with client ID 10020755 opened on 20.01.2017 with the Vadodara address of the original b) CDSL Vide e mail dated 18.01.2022 CDSL stated that it had demat account details of Rajesh Agarwal with beneficiary owner address at the original Noticee’s Vadodara address and also mentioning 3 depository participants based in Delhi with which the original Noticee has its demat accounts CDSL managed DP Amrapali Aadya Trading and Investment Pvt. Ltd.RK StockholdingLtd.SMC Global Securities Ltd. All three demat accounts were linked to the original Noticee’s Bandhan Bank account and the said demat accounts were active in the case of RK Stockholding and SMC Global Securities Ltd. and closed in the case of the Adjudication Order in respect of Rajesh Agarwal in the matter of Vani Commercials Ltd. CDSL managed DP. CDSL’s consolidated statement of demat accounts for e mail agrwlrjsh@gmail.com belonging to the original Noticee for client ID: 00168658 shows transactions in October 2017 and August 2016 pertaining to 3900 shares each of Jigyasa Infrastructure Ltd. and Kanak Krishi Implements Limited respectively. Account balance as on date is zero across all the DP c) RK Stockholding Ltd. Vide e mail dated 14.01.2022 it submitted that Rajesh Agarwalopened his trading account with the said broker on 15.09.2016 with client code NV969. He had not carried out any trade since account opening and is trading account was presently inactive in their records. Physical address of Rajesh Agrawal in RK Stockholding’s records was “204 LA Citadel Flat 30 Nutan Bharat Society Alkapuri Vadodara Gujarat 390007” and contact number was “7383913574” belonging to the original d) Beeline Broking Ltd. Vide e mails dated 13.01.2022 it was submitted that the trading accountof Rajesh Agarwalwas inactive since 11.01.2018. Address and phone number of the client on the records of Beeline Broking was stated to be the Vadodara address of the original Noticee and “7383913459” belonging to the original Noticee. e) SMC Global Securities Ltd. Vide e mail dated 27.01.2022 it was submitted that the client Rajesh Agarwalhad one DP account with it which was transferred from Amrapali Aadya Trading and Investment Pvt. Ltd. as per assignment process with CDSL. The said client had not provided account opening form and KYC details documents due to which his account is presently in freeze mode. As per the statement of holding for the said accountit is noted that the said account holds 3900 equity shares of Jigyasa Infrastructure Ltd. and 3900 shares of Kanak Krishi Implements Ltd. Adjudication Order in respect of Rajesh Agarwal in the matter of Vani Commercials Ltd. f) NSE Vide e mail dated 20.01.22 NSE provided UCC details for Rajesh Agarwal based on PAN being AMXPA5214B. For five different client IDs all have same PAN and date of birth but the first 2 are described as “client not traded” and “dormant client” in the status column of the UCC details data provided by NSE. The first 3 id’s have e mail id’s and Vadodara address of original Noticeewhile the remaining 2 id’s have the email id and address of the Appellant Noticeecontinues to be applicable to the concerned original Noticee who traded through Beeline Broking Ltd. and who opened fraudulent trading accounts and demat accounts with Beeline Adjudication Order in respect of Rajesh Agarwal in the matter of Vani Commercials Ltd. Broking R.K Stockholding Amarpali Aadya and SMC Global Securities Ltd. and also a fraudulent bank account with Bandhan Bank as noted above. 32. However the order of penalty dated 27.08.2020 is not applicable to the Appellant Noticee having PAN AMXPA5214B Driving Licence No. CG0420130923140 and addresses “H. No. A 8 Near Siddheswari Temple Radhswaninagar Bhatagon Chowk Raipur Chhatisgarh 492001” and “601 Aditya ‘A’ Cosmos Heritage Manpada GB Road Thane 40061”) who has a trading demat account with HDFC Securities. 33. Copies of this Adjudication Order are being sent to the Noticee and also to SEBI in terms of Rule 6 of the Adjudication Rules. DATE: JANUARY 28 2022 PLACE: MUMBAI MANINDER CHEEMA ADJUDICATING OFFICER Adjudication Order in respect of Rajesh Agarwal in the matter of Vani Commercials Ltd.

An earlier decision which has not proceeded on interpretation or analysis of the issue does not have a binding effect: High Court of New Delhi

Since none of the earlier decisions relied upon by the appellant have actually undertaken the process of analysis and interpretation of the contractual clauses namely Clause 16(2) of the GCC, or the similar clause contained in Clause 13(3) of the contract considered in Bright Power Projects (India) Private Limited (supra), we are of the view that there is no merit in the submission of learned counsel for the appellant that the decision in M/s Pradeep Vinod Construction Co. (supra) has been rendered in ignorance of the earlier binding precedents rendered by the Supreme Court. UNION OF INDIA v. MANRAJ ENTERPRISES[FAO(OS) 52/2018] in the High Court of New Delhi division bench consisting of JUSTICE VIPIN SANGHI and MS. JUSTICE REKHA PALLI. Facts are that the appellant has filed an appeal against the order passed by the learned Single Judge disposing of the objections preferred under Section 34 of the Arbitration & Conciliation Act to the award made on-claim to pre- suit, pendente lite, and future interest awarded on the balance due payment, from the due date of payment. The counsel for the appellant contended that the learned Single Judge reliance on M/s Pradeep Vinod Construction Co. was misplaced, and the said decision is per incuriam as it has not taken into consideration the earlier larger bench decisions rendered by the Supreme Court, and cited Union of India Vs. Bright Power Projects (India) Private Limited. The court in order to discuss the interpretation of Clause 16(2) of the GCC made reference to the judgement of the Apex court in, M/s Pradeep Vinod Construction Co., wherein it was held that “7. Having given our thoughtful consideration to the contractual obligations entered into by the parties through clause 16, we have no reason to doubt, firstly, that the clause related exclusively to earnest money and security deposit. The above Clause did not relate to the other contractual obligations between the parties…Therefore, there can be no doubt, that non-payment of interest, contemplated between the parties under clause 16, was exclusively limited to the component of earnest money and the security deposit, which was held by the appellant and nothing else.” The court in order to highlight the aspect as to what constitutes a judgment binding precedent, also made reference to the Supreme Court judgment in State of U.P. and Another Vs. Synthetics and Chemicals Ltd. and Another., wherein the following observations were made, “40.In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The „quotable in law‟ is avoided and ignored if it is rendered, in ignoratium of a statute or other binding authority‟. (Young v. Bristol Aeroplane Co. Ltd. [(1944) 1 KB 718 : (1944) 2 All ER 293] ). Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey [(1962) 2 SCR 558: AIR 1962 SC 83] this Court while pointing out the procedure to be followed when conflicting decisions are placed before a bench extracted a passage from Halsbury’s Laws of England incorporating one of the exceptions when the decision of an appellate court is not binding. Considering the law and the facts of the case the court held that, that the decisions that were relied upon, by the appellant did not constitute a binding precedent on the interpretation of Clauses 13(3), or 16(2) of the GCC. Thus dismissing the appeal.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 12.04.2021 FAO(OS) 52 2018 UNION OF INDIA Appellant Through: Mr. Prashant Kumar Nair Advocate. MANRAJ ENTERPRISES Respondent Through: Mr. Abhishek Semwal Advocate. HON BLE MR. JUSTICE VIPIN SANGHI HON BLE MS. JUSTICE REKHA PALLI VIPIN SANGHI J.The present appeal is directed against the order dated 20.09.2017 passed by the learned Single Judge disposing of the objections preferred under Section 34 of the Arbitration & Conciliation Act to the award made on claim No.5 vide Award dated 17.01.2011. Claim No.5 pertained to pre suit pendente lite and future interest awarded on the balance due payment from the due date of payment. The learned Arbitral Tribunal had awarded interest @ 12% per annum from 01.01.1997 till the date of publication of the award on the awarded amount except on the amount of security deposit and earnest money. The impugned order shows that both the parties stated before the learned Single Judge that Section Clause 16(2) of the General Conditions of FAO(OS) 52 2018 Contract had been interpreted by the Supreme Court in Union of India Vs. M s Pradeep Vinod Construction Co. Civil Appeal No.2099 2017 decided on 03.08.2017. In view of the said statement made before the learned Single Judge the challenge to the impugned award made on Claim No.5 granting pendente lite and future interest to the respondent was negated and the objections were dismissed. The Union of India has submitted in this appeal that reliance placed by the learned Single Judge on M s Pradeep Vinod Construction Co. supra) is misplaced and the said decision is per incuriam as it has not taken into consideration the earlier larger bench decisions rendered by the Supreme Court particularly the decision in Union of India Vs. Bright Power Projects Private Limited 9 SCC 695. Learned counsel for the appellant has submitted that Clause 16(2) which was considered in the present case was parimateria to Clause 13(3) considered by the Supreme Court in Bright Power ProjectsPrivate Limited supra). reads as follows: Clause 16(2) of the contract in question which was also considered by the Supreme Court in M s Pradeep Vinod Construction Co.16No interest will be payable upon the earnest money or the security deposit or amounts payable to the Contractor under the Contract but Government Securities deposited in terms of Sub Clauseof this clause will be repayable with interest accrued thereon.” Clause 13(3) of the contract considered by the Supreme court in FAO(OS) 52 2018 Bright Power ProjectsPrivate Limitedreads as follows: “13.No interest will be payable upon the earnest money and the security deposit or amounts payable to the contractor under the contract but government securities deposited in terms of sub clauseof this clause will be repayable with interest accrued thereon.” The submission of learned counsel for the appellant is that in Bright Power ProjectsPrivate Limitedthe Supreme Court held that in the light of the Clause 13(3) the Arbitral Tribunal was powerless to grant pendente lite or future interest since Section 31(7) of the Arbitration & Conciliation Act is clear to the effect that unless otherwise agreed by the parties the Arbitral Tribunal can award interest at reasonable rate for the period commencing from the date when the cause of action arises till the date of the award. The Supreme Court laid emphasis on “unless otherwise agreed by the parties” and therefore held that since the parties agreed that no interest would be payable either on earnest money or security deposit or amounts payable to the contractor under the contract the Arbitral Tribunal could not award interest even on the amount found payable under the Learned counsel has also sought to place reliance on other decisions of the Supreme Court to the same effect namely Sri Chittaranjan Maity Vs. Union of India Civil Appeal No.15545 15546 2017 decided on 03.10.2017 AIR 2017 SC 4588) Sree Kamatchi Amman Constructions Vs. Divisional Railway ManagerPalghat and Others AIR 2010 SC 3337 and Sayeed Ahmed and Company Vs. State of Uttar Pradesh & Others FAO(OS) 52 2018 12 SCC 26. In particular reference has been made to paragraph 16 of the decision of the Supreme Court in Sri Chittaranjan Maityto submit that the Supreme Court noticed the difference in the statutory schemes of the Arbitration Act 1940 and the Arbitration and Conciliation Act 1996 and held that under the later Act the Arbitral Tribunal could not award interest on the amount found due in the light of the specific prohibition contained in the contract. Paragraph 16 of this decision reads as follows: this Court “16. Relying on a decision of in Ambica Construction v. Union of India 14 SCC 323 the learned Senior Counsel for the appellant submits that mere bar to award interest on the amounts payable under the contract would not be sufficient to deny payment on pendente lite interest. Therefore the arbitrator was justified in awarding the pendente lite interest. However it is not clear from Ambica Construction v. Union of India 14 SCC 323 as to whether it was decided under the Arbitration Act 1940or under the 1996 Act. It has relied on a judgment of Constitution Bench in State of Orissa v. G.C. Roy 1992) 1 SCC 508. This judgment was with reference to the 1940 Act. In the 1940 Act there was no provision which prohibited the arbitrator from awarding interest for the pre reference pendente lite or post award period whereas the 1996 Act contains a specific provision which says that if the agreement prohibits award of interest for the pre award period the arbitrator cannot award interest for the said period. Therefore the decision in Ambica Construction v. Union of India 14 SCC 323 cannot be made applicable to the instant case.” 8. We have considered this submission of learned counsel for the appellant U.O.I. in the light of the decisions above referred to. It is pertinent to note that Bright Power ProjectsPrivate Limitedhas been FAO(OS) 52 2018 considered by the Supreme Court in M s Pradeep Vinod Construction Co. supra) as also the decision in Sree Kamatchi Amman Constructions supra) and Sayeed Ahmed and Company was rendered in ignorance of the said decisions. It is equally pertinent to note that none of the decisions relied upon by the appellant contain an interpretation by the Court of the relevant contractual Clause i.e. 13(3)Private Limitedor Clause 16(2)and M s Pradeep Vinod Construction Co.shows that the Court proceeded on the basis that Clause 16(2) prohibited the grant of interest even on the amount found due payable under the contract to the contractor. The decision in M s Pradeep Vinod Construction Co.however delves into interpretation of Clause 16(2) of the GCC and in paragraph 7 of the said decision the Supreme Court has interpreted Clause 16(2) of the GCC in the following words: “7. Having given our thoughtful consideration to the contractual obligations entered into by the parties through clause 16 we have no reason to doubt firstly that the clause related exclusively to earnest money and security deposit. The above Clause did not relate to the other contractual obligations between the parties. A perusal of clause 16 further clarifies the position inasmuch as even if some payment under the contractual obligation was diverted to make good the security deposit payable no interest would be payable thereon as well. Therefore there can be no doubt that non payment FAO(OS) 52 2018 of interest contemplated between the parties under clause 16 was exclusively limited to the component of earnest money and the security deposit which was held by the appellant and nothing else. Even though there can be no dispute whatsoever that Clause 16(2) is in pari materia with the clause taken into consideration in Tehri Hydro Development Corpn. Ltd. v. Jai Prakash Associates Ltd.12 SCC 10 yet in the case before us having read the clause in its entirety we are satisfied that the parties had agreed that payment of interest would not be due only with reference to earnest money and security deposit. Thus viewed we have no hesitation in concluding that the determination in the arbitral award of component of interest payable by the appellant to the respondent was in terms of the contractual obligation. Nothing in the contract provided for non payment of interest on the contractual obligations.”Since none of the earlier decisions relied upon by the appellant have actually undertaken the process of analysis and interpretation of the contractual clauses namely Clause 16(2) of the GCC or the similar clause contained in Clause 13(3) of the contract considered in Bright Power ProjectsPrivate Limitedwe are of the view that there is no merit in the submission of learned counsel for the appellant that the decision in M s Pradeep Vinod Construction Co. has been rendered in ignorance of the earlier binding precedents rendered by the Supreme Court including in the case of Bright Power Projects Private Limited supra). We may refer to the following observations of the Supreme Court in State of U.P. and Another Vs. Synthetics and Chemicals Ltd. and Another 4 SCC 139 on the aspect as to what constitutes a judgment binding precedent: FAO(OS) 52 2018 “40. „Incuria‟ literally means „carelessness‟. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The „quotable in law‟ is avoided and ignored if it is rendered „in ignoratium of a statute or other binding authority‟.1 KB 718 : 2 All ER 293] ). Same has been accepted approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey2 SCR 558 : AIR 1962 SC 83] this Court while pointing out the procedure to be followed when conflicting decisions are placed before a bench extracted a passage from Halsbury s Laws of England incorporating one of the exceptions when the decision of an appellate court is not binding. 41. Does this principle extend and apply to a conclusion of law which was neither raised nor preceded by any consideration. In other words can such conclusions be considered as declaration of law Here again the English courts and jurists have carved out an exception to the rule of precedents. It has been explained as rule of sub silentio. “A decision passes sub silentio in the technical sense that has come to be attached to that phrase when the particular point of law involved in the decision is not perceived by the court or present to its mind.”Ltd. v. Bremith Ltd.1 KB 675 677 :2 All ER 11] the Court did not feel bound by earlier decision as it was rendered „without any argument without reference to the crucial words of the rule and without any citation of the authority‟. It was approved by this Court in Municipal Corporation of Delhi v. Gurnam Kaur. 1989) 1 SCC 101] The bench held that „precedents sub silentio and without argument are of no moment‟. The courts thus have taken recourse to this principle for relieving from injustice perpetrated by unjust precedents. A decision which is not express and is not founded on reasons nor it proceeds on FAO(OS) 52 2018 consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. Uniformity and consistency are core of judicial discipline. But that which escapes in the judgment without any occasion is not ratio decidendi. In B. Shama Rao v. Union Territory of Pondicherry2 SCR 650 : 20 STC 215] it was observed „it is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles laid down therein‟. Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent. Restraint in dissenting or overruling is for sake of stability and uniformity but rigidity beyond reasonable limits is inimical to the growth of law.” In the light of the above we are of the view that the decisions relied upon by the appellant did not constitute a binding precedent on the interpretation of Clauses 13(3) or 16(2) of the GCC. 11. We therefore do not find any merit in the present appeal and the same is accordingly dismissed. VIPIN SANGHI J REKHA PALLI J APRIL 12 2021 B.S. Rohella FAO(OS) 52 2018

A court under Section 34(2) of the Arbitration Act does not sit in appeal over the award of an Arbitral Tribunal by re-assessing or re-appreciating the evidence: Kerala High Court

Arbitral Award can be set aside under Section 34(2)(a)(v) of the Act on the ground that the composition of the Arbitral Tribunal was not in accordance with the agreement of the parties. If a plea of jurisdiction is not taken before the Arbitrator as provided in Section 16 of the Act, such a plea cannot be permitted to be raised in proceedings under Section 34 of the Act for setting aside the award, unless good reasons are shown. This remarkable judgment was passed by the Kerala High Court in the matter of KASIM V.K V M.ASHRAF [Arb.A.No.37 OF 2020] by Honourable Justice C.T.Ravikumar and Justice K.Haripal. In this appeal, the jurisdiction of a District Court to entertain a petition touching the matters falling under the Arbitration and Conciliation Act will be deliberated upon. The HC will also answer the question if a party to an arbitration dispute can challenge the jurisdiction of the Arbitrator for the first time before the court in a petition filed under Section 34 of the Act. This appeal was preferred under Section 37 of the Arbitration and Conciliation Act, 1996, challenging the correctness of the order of the III Additional District Judge, Kozhikode, and the appellant prays to set aside the award of the Arbitrator. The appellant and the respondent were partners in M/s.Shalimar Jewellery and a partnership agreement were executed on 28.10.2013. However, later they dissolved the agreement mutually but could not reach a consensus for settlement of accounts appointed by two Arbitrators. The appellant nominated Sri. K. Aravindakshan as Arbitrator who dismissed the claim of the respondent and Sri. Abdulla Manapurath nominated by the respondent as Arbitrator found that at the time of dissolution of the partnership, 6481.580 grams of gold was the stocking trade, the respondent is entitled to half of the said amount. In the light of the divergent findings of the respective Arbitrators, both the Arbitrators jointly nominated Adv. Sri. A.K. Rajeev as the third Arbitrator, who, after taking evidence, passed an award to the effect that the respondent is entitled to claim Rs.1,13,77,405/- with interest at the rate of 11% on Rs.87,03,427/-. Aggrieved by the arbitral award the appellant moved the District Court under Section 34 of the Act, however, the petition was dismissed. It is to be noted that the power of the Arbitrator to consider the arbitrability or otherwise is controlled by the terms of the agreement. If there is a clause for arbitration in the partnership deed, necessarily it will guide the proceedings. The HC observed that “Here, as noticed earlier, clause 17 of the partnership agreement dated 28.10.2013 clearly envisages the appointment of an Arbitrator or Arbitrators, as the case may be, if any matter relating to the firm cannot be mutually discussed and settled. Before the third umpire also the parties appeared and presented their case; after having co-operated with the third umpire also with open eyes, without raising the slightest objection regarding the jurisdiction of the Arbitrator, now the appellant cannot be heard to say that the Arbitrator lacked jurisdiction to resolve any matter in controversy.” Thus, he is estopped from raising such a belated plea in a petition filed under Section 34 of the Act. It was also stated that, “Hon’ble Apex Court in V.H.Patel & Company, that the power of dissolution of the partnership firm under Section 44(g) of the Indian Partnership Act on just and equitable grounds also is an action in personam and not in rem. Additionally, for all practical purposes, if there are more than one district court in a district, the Principal District Judge can only be considered first among equals and the Additional District Judge is in no way considered to be inferior to the Principal District Judge.” Under Section 34 of the Act, the District Court has only supervisory jurisdiction. The jurisdiction of this Court under Section 37, at the tapering end of the proceedings, is still narrow and thin. Thus the Court asserted that “Court cannot undertake an independent assessment of the merits of the award and must only ascertain that the exercise of power under Section 34 has not exceeded the scope of the provisions; in case an arbitral award has been confirmed by the court under Section 34, in an appeal under Section 37 the appellate court must be extremely cautious and slow in disturbing such concurrent findings.”

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR THE HONOURABLE MR. JUSTICE K.HARIPAL FRIDAY THE 09TH DAY OF APRIL 2021 19TH CHAITHRA 1943 Arb.A.No.37 OF 2020 AGAINST THE ORDER IN OPARB 270 2018 DATED 02 03 2020 OF III ADDITIONAL DISTRICT COURT KOZHIKODE APPELLANT PETITIONER IN O.P.(ARB AGED 53 YEARS S O.KUNHABDULLA HAJI POST CHEEKKONNUMMAL WEST NARIPPATTA AMSOM VATAKARA TALUK KOZHIKODE 673 567 RESPONDENT RESPONDENT IN O.P.(ARB AGED 51 YEARS S O.AMMED MARUTHERI HOUSE POST CHEEKKONNUMMAL WEST NARIPPATTA AMSOM VATAKARA TALUK KOZHIKODE 673 567 BY ADV. C.P. MOHAMMED NIASNo.270 2018. That was a petition filed by the appellant before the District Court under Section 34 of the Act seeking to set aside the award of the Arbitrator dated It is the common case that the appellant and the respondent were partners in M s.Shalimar Jewellery a partnership concern dealing in the sale of gold. The partnership agreement was executed on Arb.A.37 2020 :3 28.10.2013. Before the execution of that agreement there were three partners in the firm the appellant the respondent and one V.K. Moidu When Moidu chose to move out the agreement dated 28.10.2013 was brought in existence. During the course of business the appellant and the respondent could not move on and thus by a lawyer notice the respondent notified the appellant his intention to dissolve the partnership. Thus he informed that the partnership stood dissolved with effect from 01.05.2015. In the matter of settlement of accounts the partners could not reach a consensus and that led to the appointment of two Arbitrators at the instance of the parties. The appellant nominated Sri.K. Aravindakshan as Arbitrator who dismissed the claim of the respondent. On the other hand one Sri. Abdulla Manapurath was nominated by the respondent as Arbitrator who found that at the time of dissolution of the partnership 6481.580 grams of gold was the stock in trade the value of which was estimated to be Rs.1 91 85 476.80 and thus the respondent was found entitled half of the said amount i.e Rs.95 92 738.40 . In the light of divergent finding of the respective Arbitrators both the Arbitrators jointly nominated Adv. Sri. A.K Rajeev as the third Arbitrator who after taking evidence passed an Arb.A.37 2020 :4 award to the effect that the respondent is entitled to claim Rs.1 13 77 405 with interest at the rate of 11% on Rs.87 03 427 Aggrieved by the said award of the third umpire the appellant moved the District Court with the above stated Original Petition under Section 34 of the Act. By the impugned order on 02.03.2020 the learned III Additional District Judge dismissed the petition. Aggrieved by the same the appellant has moved this Court under Section 37 of the Act. 4. We heard Adv.Sri. B.Krishnan for the appellant and Adv.Sri Mohammed Nias for the respondent. The records leading to the award and the order passed by the learned Additional District Judge were also summoned and perused. The point arising for consideration is whether the appellant could make out valid reasons for interference under Section 37 of the Act. As mentioned earlier it is the common case that both the appellant and the respondent were partners of a partnership firm by name M s.Shalimar Jewellery doing business in gold at Nadapuram in Kozhikode district. The partnership agreement was executed on 28.10.2013 in continuation of the earlier business run by the parties Arb.A.37 2020 :5 themselves along with one V.K. Moidu. Clause 17 of the partnership agreement reads thus: “17. Any dispute or difference of opinion that may arise between the partners or their heirs or their legal representatives with regard to this partnership agreement or any other matter relating to this firm shall be mutually discussed and settled. If not settled the dispute shall be referred to two arbitrators by common agreement of the partners. Where these arbitrators are themselves divided in opinion the matters may further be referred to an umpire chosen by the said arbitrators.” It is on the strength of the above clause in the agreement that the appellant and the respondent had nominated their respective Arbitrators But divergent awards were passed by the Arbitrators which necessitated the appointment of a third umpire and that was how the impugned award had come into existence. The impugned order indicates that even though the appellant had challenged the award with numerous contentions at the time of argument he confined to one ground only namely that the dispute is not capable of settlement by arbitration. The learned Additional District Judge considered this aspect and basing on the decision of the Hon ble Supreme Court in M s. V.H. Patel & Company Arb.A.37 2020 :6 and others v. Hirubhai Himabhai Patel and others4 SCC 368] and also A. Ayyasami v. Parasasivam and others 10 SCC 386] ruled against the appellant and held that a dispute on the dissolution of a partnership is capable of being adjudicated by the Arbitrator and ultimately the petition was dismissed. Elaborate and lengthy arguments were addressed by the learned counsel for the appellant. According to him such a contention of the respondent touching the dissolution of the partnership is not arbitrable it is a matter to be deliberated upon by a civil court According to the learned counsel the Arbitrator went wrong in awarding a huge amount in favour of the respondent it is in contrast to the terms of the partnership deed where it is specified in clause 5 that the capital of the partnership was Rs.40 lakhs. It is the contribution of both the partners in equal proportion according to the requirement of the business. Ignoring this clause the Arbitrator went further exceeding his authority and granted a huge amount as award which cannot stand judicial scrutiny. In this circumstance it is illegal that the Arbitrator had gone to assess the value of the gold etc. The learned counsel contended that when there is a statement in the agreement that the Arb.A.37 2020 :7 capital value is Rs.40 lakhs there was no necessity to go behind it Besides the jurisdiction of the Arbitrator the learned counsel contended that an Additional District Judge lacks authority to entertain a petition under Section 34 of the Act. According to him the matter ought to have been considered by the Principal Civil Court of original jurisdiction of the District which is the Principal District Court. On this aspect he placed reliance on Sree Gurudeva Charitable and Educational Trust and others v. K. Gopalakrishnan and others 2020KHC 343]. Referring to Section 7 of the Civil Courts Act the counsel contended that being a special enactment Arbitratoin and Conciliation Act does not postulate investiture of the power on the Additional District Judge. According to the learned counsel the third Arbitrator did not pass the award within time. On the other hand the learned counsel for the respondent submitted that the order under challenge indicates that the appellant had given up all grounds except the authority of the Arbitrator to take up the issue of dissolution of partnership and therefore that contention alone can be agitated before the appellate court. After demanding rendition of accounts and claiming half share in the capital asset of the firm and Arb.A.37 2020 :8 also after taking initiative for appointing an Arbitrator and then appointment of the third umpire now he cannot be heard to say that the dispute is not arbitrable or that the Arbitrator has no jurisdiction. The appellant was raising a plea of discharge but he did not prove the same After giving up all other grounds taken in the petition filed under Section 34 of the Act now he cannot agitate those matters before the appellate court. According to the learned counsel the capital value mentioned in the partnership agreement is irrelevant. Evidently on the date of stoppage of the business 6481.580 grams of gold was the stock in trade. The appellant has no dispute on this nor has a case that the value of the stock was not ascertainable. Notwithstanding the agreement on the capital asset of the firm the value of the assets of the firm on the date of dissolution is important and the Arbitrator has fixed the liabilities based on the stock in trade available with them on that date. Both the partners are entitled to get the value of such assets on the basis of the provisions of the Partnership Act. It is only a matter of mathematical calculation. The decision reported in Sree Gurudeva Charitable and Educational Trust quoted supra has no application to the facts of the case. So the learned counsel strongly defended the Arb.A.37 2020 :9 impugned order and sought for the dismissal of the appeal. 10. The sole ground highlighted before the District Court challenging the award is the want of jurisdiction of the Arbitrator to consider the question of dissolution of partnership. But going by the records the respondent who initiated resolution of the disputes through arbitration took the stand that the partnership stood dissolved with effect from 01.05.2015 and what remained was production of the books of accounts of the firm for the purpose of winding up. According to him by a registered communication he intimated the appellant that the matter has to be referred for arbitration and also conveyed the appointment of Sri. Abdulla Manapurath as the Arbitrator. This notice was responded by the appellant by letter dated 10.11.2016 conveying his intention to appoint Sri. K. Aravindakshan Tax Practitioner as the Arbitrator to do arbitration proceedings along with said Sri. Abdulla Manapurath. In other words both sides proceeded on the assumption that the partnership stood dissolved with effect from 01.05.2015. That being the position in fact the question of jurisdiction of the Arbitrator to consider the dissolution of partnership in our assessment did not arise at all. What remained was settlement of accounts between the Arb.A.37 2020 :10 parting partners. Whatever it may be the authority of an Arbitrator to consider the question of dissolution of partnership is no more res integra. As rightly noted by the learned Additional District Judge the Hon ble Apex Court in the decision reported in V.H. Patel Company quoted supra has considered the question and held that such a matter also will fall within the domain of the Arbitrator. Paragraph 12 of the judgment reads thus: “12. So far as the power of the arbitrator to dissolve the partnership is concerned the law is clear that where there is a clause in the articles of partnership or agreement or order referring all the matters in difference between the partners to arbitration the arbitrator has power to decide whether or not the partnership shall be dissolved and to award its dissolution.1 All E.R. 512]. Power of the arbitrator will primarily depend upon the arbitration clause and the reference made by the court to it. If under the terms of the reference all disputes and difference arising between the parties have been referred to arbitration the arbitrator will in general be able to deal with all matters including dissolution. There is no principle of law or any provision which bars an arbitrator to examine such a question Although the learned counsel for the petitioner relied upon a passage of Pollock & Mulla quoted earlier that passage is only confined to the inherent powers of the court as to whether dissolution of partnership is just and equitable but we have demonstrated in the course of our order that it is permissible for the Arb.A.37 2020 :11 court to refer to arbitration a dispute in relation to dissolution as well on grounds such as destruction of mutual trust and confidence between the partners which is the foundation therefor.” 11. As held by the Apex Court the power of the Arbitrator to consider the arbitrability or otherwise is controlled by the terms of the agreement. If there is a clause for arbitration in the partnership deed necessarily it will guide the proceedings. Here as noticed earlier clause 17 of the partnership agreement dated 28.10.2013 clearly envisages the appointment of an Arbitrator or Arbitrators as the case may be if any matter relating to the firm cannot be mutually discussed and settled. Taking strength from the said clause the respondent had initiated appointment of an Arbitrator which was followed suit by the appellant. After both the Arbitrators had given divergent views the third umpire was appointed as provided under the agreement. Before the third umpire also the parties appeared and presented their case after having co operated with the third umpire also with open eyes without raising slightest objection regarding the jurisdiction of the Arbitrator now the appellant cannot be heard to say that the Arbitrator lacked jurisdiction to resolve any matter in controversy. Appellant has no case Arb.A.37 2020 :12 that he had raised a contention touching want of jurisdiction of the Arbitrator or that the Arbitrator did not consider it. The appellant has made such a plea for the first time before the District Court and then before this Court without raising any contention before the Arbitrator In fact Section 16 of the Act enables a party to raise objection before the Arbitrator himself challenging his jurisdiction. But without resorting to such a course the matter was raised before the District Court for the first time 12. The preamble of the Act makes it amply clear that the Parliament enacted the statute almost on the same lines as the Model Law which was drafted by United Nations Commission on International Trade Law UNCITRAL. Under the 1940 Act an Arbitrator had no power to decide on his own jurisdiction. But Section 16 of the Act of 1996 is a recognition of the doctrine of competence competence meaning that the Arbitral Tribunal can rule on its own jurisdiction. The crux of the arbitration process is the autonomy of the disputing parties with minimum judicial intervention. Once the Arbitral Tribunal after hearing parties gives a decision that the arbitration agreement exists between the parties then by virtue of sub sectionof Section 16 the Arb.A.37 2020 :13 tribunal is bound to proceed with the arbitration matter and make the award and the validity of the order can be assailed by the aggrieved party only by filing objections against the award under Section 34. It is the requirement of the law that respondent must state his objections with regard to the jurisdiction of the Arbitrator before filing the statement of defence. However the respondent may be allowed to raise objection to the jurisdiction of the Arbitrator even subsequent to the filing of the defence statement provided he can show good reasons to the Arbitrator for raising such an objection at a belated stage. In this connection it is apposite to extract the following paragraphs from the decision reported in Gas Authority of India Limited and another v. Keti Constructions Ltd. and others 2007) 5 SCC 38]: “24. The whole object and scheme of the Act is to secure an expeditious resolution of disputes. Therefore where a party raises a plea that the Arbitral Tribunal has not been properly constituted or has no jurisdiction it must do so at the threshold before the Arbitral Tribunal so that remedial measures may be immediately taken and time and expense involved in hearing of the matter before the Arbitral Tribunal which may ultimately be found to be either not properly constituted or lacking in jurisdiction in Arb.A.37 2020 :14 proceedings for setting aside the award may be avoided The commentary on Model Law clearly illustrates the aforesaid legal position. 25. Where a party has received notice and he does not raise a plea of lack of jurisdiction before the Arbitral Tribunal he must make out a strong case why he did not do so if he chooses to move a petition for setting aside the award under Section 34(2)(a)(v) of the Act on the ground that the composition of the Arbitral Tribunal was not in accordance with the agreement of the parties. If plea of jurisdiction is not taken before the Arbitrator as provided in Section 16 of the Act such a plea cannot be permitted to be raised in proceedings under Section 34 of the Act for setting aside the award unless good reasons are shown.” The above dictum is a complete answer to the argument raised by the appellant touching want of jurisdiction of the Arbitrator. At the risk of repetition we may point out that the appellant has no dispute regarding the validity of the agreement nor he had raised such a contention before the two Arbitrators chosen by the parties and also before the third umpire. In the circumstances he is estopped from raising such a belated plea in a petition filed under Section 34 of the Act. 14. We have also come across the decision of a learned Single Judge of the Bombay High Court reported in Yogendra N. Thakkar v Arb.A.37 2020 :15 Vinay Balse and anotherwhere the learned Judge has ruled basing on the decision of the Hon ble Apex Court in V.H.Patel & Company quoted supra that the power of dissolution of the partnership firm under Section 44(g) of the Indian Partnership Act on just and equitable grounds also is an action in personam and not in rem. We concur with the above view expressed by the learned Single Judge of the Bombay High Court. 15. We have already referred to clause 17 of the agreement executed between the parties. It is quite patent that the said clause is very wide and the intention of the parties is to settle the dispute through arbitration in the event it could be settled through mediation. Section 44 of the Partnership Act also does not impose any taboo or cause any restriction which prevents dissolution of partnership through arbitration In other words there is no inherent lack of jurisdiction in the matter of considering the question of dissolving the partnership through arbitration. 16. During the course of argument the learned counsel for the appellant also disputed the jurisdiction of the Additional District Judge in entertaining a petition under Section 34 of the Act. Referring to Arb.A.37 2020 :16 Section 2(e) of the Act he said that court means only principal civil court of original jurisdiction in a district and therefore the Additional District Judge has no jurisdiction to entertain the petition. In this connection he placed strong reliance on Sree Gurudeva Charitable and Educational Trust quoted supra. But we have no doubt in our mind that such an argument cannot be accepted in right earnest. Firstly the decision in Sree Gurudeva Charitable and Educational Trust was rendered in the context of Section 92 of the Civil Procedure Code and has turned up on its own facts. We are not called upon to make any opinion on the correctness of the said decision. Secondly Section 2(1 e) of the Act reads thus “2. Definitions. In this Part unless the context otherwise requires e) "Court" means—(i) in the case of an arbitration other than international commercial arbitration the principal Civil Court of original jurisdiction in a district and includes the High Court in exercise of its ordinary original civil jurisdiction having jurisdiction to decide the questions forming the subject matter of the arbitration if the same had been the subject matter of a suit but does not include any Civil Court of a grade inferior to such principal Civil Court or any Court of Small Causes ii) in the case of international commercial arbitration the High Court in exercise of its ordinary original civil jurisdiction having Arb.A.37 2020 :17 jurisdiction to decide the questions forming the subject matter of the arbitration if the same had been the subject matter of a suit and in other cases a High Court having jurisdiction to hear appeals from decrees of Courts subordinate to that High Court.” 17. A close reading of this provision will not impel us to adopt the argument raised by the learned counsel. The said provision enables the principal civil court of original jurisdiction in a district as the court having jurisdiction to decide the question forming the subject matter of arbitration such a court does not include any civil court of a grade inferior to such a court or any Court of Small Causes. The latter limb of Section 2(1)(e) of the Act makes it abundantly clear that the definition of the court does not include any civil court of a grade inferior to such principal Civil Court or any Court of Small Causes To put it in other words legislature has not thought of excluding courts exercising identical or co equal powers from the definition. In no stretch of imagination an Additional District Judge can be inferior to such principal civil court. A court is inferior to another court when an appeal lies from the former to the latter. An inferior court must be construed to mean judicially inferior and has appellate jurisdiction. A court is an inferior court for the purpose of the prohibition in the Arb.A.37 2020 :18 provision whenever its jurisdiction is limited. The Additional District Judge enjoys an equal concurrent jurisdiction with the District Judge His powers are identical and co equal with the Principal District Judge Both are manned by officers in the category of District Judge. The Principal District Judge cannot revise an order passed by any Additional District Judge. District Court is the court for the purposes of execution of the award and considering the matters under the Arbitration Act it is important to note that the Principal District Judge has no appellate jurisdiction or revisional jurisdiction over the Additional District Judge For all practical purposes if there are more than one district court in a district the Principal District Judge can only be considered first among equals and the Additional District Judge is in no way considered to be inferior to the Principal District Judge 18. When a similar contention that an Additional District Judge has no jurisdiction to entertain an application under Section 9 of the Act was raised in Globsyn Technologies Ltd. v. Eskaaycee Infosys 2004ALT 174 : MANU AP 0970 2003] the High Court of Andhra Pradesh ruled thus: “12. The short question that falls for consideration is as to Arb.A.37 2020 :19 whether the Court of the learned VI Additional District Judge is a Civil Court of a grade inferior to the Principal Civil Court The Court of the Principal District Judge and the Court of VI Additional District Judge are of equal grade. The Court of the learned VI Additional District Judge is not a court of a grade inferior to the Court of the Principal District Judge. The expression “Court of a grade inferior” is required to be understood in its proper context. The dictionary meaning of inferior is “lower in any respect subordinate a person who is lower in rank or station” According to Black s Law Dictionary inferior means “one who in relation to another has less power and is below him one who is bound to obey another. The term may denote any Court subordinate to the chief appellate Tribunal in the particular judicial system but it is also commonly used as the designation of a Court special limited or statutory jurisdiction” I find it difficult to accept the submission of the learned Additional Advocate General that the Court of the learned VI Additional District Judge at Visakhapatnam is a Court of a grade inferior to the Principal District Judge s Court. ….....” 19. A Division Bench of the Madhya Pradesh High Court also considered the same question pointedly in Madhya Pradesh State Electricity Board and another v. ANSALDO Energia S.P.A. and anotherof Section 3 of the Civil Courts Act the Government shall establish a district court for each district and a Judge shall be appointed to such court. Section 4 provides for appointment of Additional District Judges. Under sub sectionof Section 4 when the state of business pending before a district court so requires one or more Additional District Judges may be appointed to that court for such period as it deemed necessary. Sub sectionof Section 4 says that an Additional District Judge shall discharge all or any of the functions of the District Judge under this Act in respect of all matters which the District Judge may assign to him or which under the provision of Arb.A.37 2020 :21 Section 7 may be instituted before him and in the discharge of those functions he shall exercise the same powers as the District Judge When such additional district courts are established and Additional District Judges are appointed sub sectionof Section 4 of the Civil Courts Act empowers the Additional District Judges so appointed with powers to discharge all the functions of the District Judges. It is very specific when it is provided that the Additional District Judge shall exercise the same powers as the District Judge. That is why it is stated that Principal District Judge is only first among equals among the District Judges in a district. In the circumstance there is no jurisdic19tional error in Additional District Judges hearing petitions filed under the Act 21. Arguments were also addressed stating that the award was given in total disregard of the time frame provided under Section 29 A of the Act. According to the learned counsel the award is hit by sub clauseof Section 29A of the Act. We are unable to subscribe this argument also. It is evident from the paper book produced by the learned counsel and also the records that when two Arbitrators appointed by the parties had given divergent views appointment of a Arb.A.37 2020 :22 third umpire became necessary. Accordingly both the Arbitrators together by letter dated 15.05.2017 nominated Sri.A.K. Rajeev Advocate Vadakara as the third umpire. The proceeding paper indicates that he had taken up the matter on 19.05.2017 and the impugned award was passed on 29.09.2018. No doubt such an award was not passed within a period of twelve months as provided under Section 29 A(1) of the Act. All the same sub clauseof Section 29 A provides that the parties may by consent extend the period specified in sub sectionfor making award for a further period not exceeding six months. Referring to paragraph 8 of the impugned award the learned counsel for the respondent submitted that the third umpire proceeded with the matter as consented by the parties under sub section of Section 29 A. Relevant portion of the award indicates that there was some delay in proceeding with the matter partly attributable to his personal inconvenience and also due to the delay and laches on the part of the parties in submitting their statements and documents before him . The claimant filed his statement along with the documents only on 02.04.2018 whereas the respondent filed his statement on 09.05.2018. It is further stated that on 09.05.2018 that is Arb.A.37 2020 :23 before the expiry of twelve months starting from 15.05.2017 both the parties were requested by him to extend their cooperation to complete the proceedings and make the award as early as possible and at any rate on or before 15.10.2018. According to him they accepted and agreed for the same and cooperated with him for completing the arbitration proceedings. In other words taking the date of commencement of the proceedings as 15.05.2017 before the expiry of twelve months both the parties consented to extend the period specified in sub sectionof Section 29 A for making the award and the award was passed on 29.09.2018 within a further period of six months from the date of giving the consent. Sitting in this jurisdiction we do not find any reason to disbelieve the version of the Arbitrator and to strike off the proceedings under sub sectionof Section 29 A of the Act. 22. This is not a regular appeal as provided under Order XLI CPC or Section 5 of the High Court Act but an appeal under Section 37 of the Act. While considering an application under Section 34 of the Act the District Court has only supervisory jurisdiction. The jurisdiction of this Court under Section 37 at the tapering end of the proceedings is still narrow and thin. Arb.A.37 2020 :24 It is the settled proposition of law that an Arbitrator is a Judge chosen by the parties and his decision is final. The court is not expected to appraise evidence as done by a regular court of appeal. In a case where the award contains reasons interference would not be available within the jurisdiction of the court unless reasons are totally perverse or the award is based on wrong proposition of law. An error apparent on the face of the records would not imply closer scrutiny of the merits of documents and materials on record. Once it is found that the view of the Arbitrator is a plausible one the court will refrain from interfering in the matter. In the decision reported in P.R. Shah Shares & Stock BrokersLtd. v. B.H.H. SecuritiesLtd.SCC 594 the Apex Court held that a court under Section 34(2) of the Act does not sit in appeal over the award of an Arbitral Tribunal by re assessing or re appreciating the evidence. An award can be challenged only under the grounds mentioned in Section 34(2) of the Act. In the absence of any ground under Section 34(2) of the Act it is not possible to re examine the facts to find out whether any different decision can be arrived at Similarly in Sutlej Construction Ltd. v. Union Territory of Arb.A.37 2020 :25 Chandigarh1 SCC 718] while commenting against an order passed under Section 34 of the Act the Hon ble Supreme Court held that the Judge ought to have restrained himself from getting into the meanderings of evidence appreciation and acting like a second appellate 25. Coming down to the jurisdiction under Section 37 it is clear that the court cannot travel beyond the restrictions laid down under Section 34 of the Act. The Hon ble Supreme Court has held that the Court cannot undertake an independent assessment of the merits of the award and must only ascertain that the exercise of power under Section 34 has not exceeded the scope of the provisions in case an arbitral award has been confirmed by the court under Section 34 in an appeal under Section 37 the appellate court must be extremely cautious and slow in disturbing such concurrent findings. 26. We have considered the contentions of the parties bearing in mind the restrictions imposed by the statute and also the caution sounded by the Apex Court. On an overall consideration of the entire circumstances we are sure that the learned Additional District Judge has considered the award in proper perspective and reached a correct Arb.A.37 2020 :26 conclusion. We are of the definite view that overwhelming reasons are not made out warranting interference in appeal. Point is answered accordingly and the appeal is dismissed. No costs. Before parting with we once again record our deep appreciation for the erudite and enlightening arguments raised before this Court by the learned counsel for the appellant as also the learned counsel for the respondent. JUDGE Sd K.HARIPAL True copy P.S. to Judge

It is essential to prove that the attempt was with an intent to commit the offence: Supreme Court

An attempt is possible even when the accused is unsuccessful in committing the principal offence. Similarly, if the attempt to commit a crime is accomplished, then the crime stands committed for all intents and purposes as held by the Hon’ble Supreme Court through the learned bench led by Justice Surya Kant in the case of State of Madhya Pradesh v. Mahendra Alias Golu (Criminal Appeal No. 1827 Of 2011) The brief facts of the case are that, about a fortnight prior to the date of registration of FIR, the two victim prosecutrix, aged about 9 years and 8 years respectively, were playing in the street located near the respondent’s house. The respondent, called them with the inducement that he will give them money. Both the victims went along with the respondent to his house which was totally empty at the time of the incident. Taking advantage of this opportune moment, the respondent thereafter undressed both the victims and made her lie down and started rubbing his genitals against the genitals of the both the victims. Both the minor victims, felt scared and shocked because of which they allegedly started crying. The respondent silenced them by threatening them with physical harm. However, after a few days, both victims revealed the details of the incident. After a lapse of 15 days of the incident, the present FIR was thus filed. The Trial Court convicted the respondent for the offence under Section 376(2)(f) read with Section 511 IPC though acquitted him under Sections 3(2)(v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The respondent was sentenced to undergo rigorous imprisonment of 5 years and fine of Rs. 5000/­. The respondent laid challenge to his conviction before the Principal Bench of Madhya Pradesh High Court and vide impugned judgment, the High Court modified the judgment of the Trial Court; set aside the conviction under Section 376(2)(f) read with Section 511 IPC and convicted the respondent under Section 354 IPC and sentenced him to undergo 2 years of rigorous imprisonment and fine of Rs. 5000/­. The aforestated modification and resultant reduction in sentence are assailed before us at the instance of the Prosecution. After the perusal of the facts and arguments by the respective parties, the Hon’ble Court held, “In our considered opinion, the act of the respondent of luring the minor girls, taking them inside the room, closing the doors and taking the victims to a room with the motive of carnal knowledge, was the end of ‘preparation’ to commit the offence. Since the acts of the respondent exceeded the stage beyond preparation and preceded the actual penetration, the Trial Court rightly held him guilty of attempting to commit rape as punishable within the ambit and scope of Section 511 read with Section 375 IPC as it stood in force at the time of occurrence. We, thus, allow the appeal, set aside the judgment of the High Court and restore that of the Trial Court. The respondent is directed to surrender within two weeks and serve the remainder of his sentence as awarded by the Trial Court.”

State of Madhya Pradesh hereinafter referred to as “Appellant”) is in appeal against the impugned judgment dated 08.10.2009 passed by the High Court of Madhya Pradesh Principal Bench at Jabalpur whereby the respondent’s conviction under Section 376(2)(f) read with Section 511 of Indian Penal Code for short “IPC”) has been set aside and instead he has been held guilty under Section 354 IPC and consequently his sentence has been reduced from 5 years to 2 years Rigorous Digitally signed byVishal AnandDate: 2021.10.2517:18:10 ISTReason:Signature Not Verified BRIEF FACTS The prosecution case is that about a fortnight prior to 20.12.2005 the two victim­prosecutrix who are named as ‘X’ and ‘Y’ aged about 9 years and 8 years respectively were playing ‘gilli­danda’ in the street located near the respondent’s house. The respondent who was called them with the inducement that he will give them money the incident. Taking advantage of this opportune moment the marry them. It is stated that the respondent thereafter undressed his genitals against the genitals of PW­1. Further in the same identical manner the above­mentioned act was repeated with Both the minor victims as an obvious reaction to the that the neighbours could possibly hear the victims’ voices told them not to disclose anything about this incident and silenced them by threatening them with physical harm. However after a few days both victims revealed the details of the incident to their and inadvertent intervention of PW­8. It is stated that on the occasion of a religious gathering at PW­2’s house PW­8 started probe spiralled into the victims revealing the incident’s details to PW­6 when the latter prodded her to share the details of the incident. Similarly PW­1 confided in PW­3 on the same day in the evening. The mothers then Section 376(2)(f) read with Section 511 IPC though acquitted him Prevention of Atrocities) Act 1989. The respondent was sentenced to undergo rigorous imprisonment of 5 years and fine of Rs The respondent laid challenge to his conviction before the judgment dated 08.10.2009 the High Court modified the judgment of the Trial Court set aside the conviction under Section 376(2)(f) read with Section 511 IPC and convicted the 2 years of rigorous imprisonment and fine of Rs. 5000 ­. The “17. On going through the evidence on record particularly allegations in FIR Ex.P 1 I am of the view that the appellant did not make all efforts to attempt to commit rape with both prosecutrix he had not gone beyond the as attempt to commit the same offence I am of the record the offence of indecent assault by the appellant on both the prosecutrix u s 354 IPC is Consequently the appellant is acquitted of charge 376 read with Section 511 IPC two counts The aforestated modification and resultant reduction in 7. Mr. Mukul Singh learned Counsel for the State vehemently as ‘X’and ‘Y’and supported the prosecution case the victims have admirably withstood the pressure of a humiliating and unnerving cross­examination. Their depositions have been duly corroborated by ‘Z’ read with Section 511 IPC which has been Statute or the settled principles attracted to the facts and even if the prosecution case is accepted as gospel truth nothing beyond the ‘preparation’ to commit rape has been proved. He emphasised that the Trial Court failed to draw the distinction commit rape. He passionately argued that the High Court has rightly rectified the patent error and modified the conviction from a woman as defined under Section 354 of IPC. Further learned Counsel for the respondent has also urged that there was a victims regarding the former’s presence near the place of In all fairness Mr. Praveen Chaturvedi learned Counsel for in Aman Kumar vs. State of Haryana1 to buttress his offence as compared to an actual ‘attempt’ to commit it. He in specific relied upon the following paragraphs of the cited “9. A culprit first intends to commit the offence then makes preparation for committing it and thereafter attempts to the offence if it fails due to reasons beyond his control he is said to have attempted to commit the offence. Attempt to the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention he commences his attempt to commit the offence. The word “attempt” is not itself defined and must therefore be taken Section 511 require. An attempt to commit a crime is to be distinguished from an intention to commit it and from an offence not followed by any act cannot constitute an be some external act which shows that progress has been it. Intention is the direction of conduct towards the object chosen upon considering the motives which suggest the choice. Preparation consists in devising or arranging the means or measures necessary for the commission of the offence. It differs widely from attempt which is the direct movement towards the commission after preparations are made. Preparation to commit an offence is punishable only waging war against the Government of India) and Section degree of determination in attempt as compared with acts which leads inevitably to the commission of the offence nor intended happens to prevent this. An attempt may be described to be an act done in part­execution of a criminal design amounting to more than mere preparation but falling short of actual consummation and possessing except for failure to consummate all the elements of the substantive commit a crime falling short of its actual commission. It may The illustrations given in Section 511 clearly show the In this factual backdrop the question which falls for our consideration is whether the offence proved to have been committed by the respondent amounts to ‘attempt’ to commit rape within the meaning of Section 376(2)(f) read with Section modesty of the victims It is a settled preposition of Criminal Jurisprudence that in every crime there is first Mens Rea secondly preparation to commit it and thirdly attempt to commit it. If the third stage that is ‘attempt’ is successful then the crime is complete. If the attempt fails the crime is not act. ‘Attempt’ is punishable because even an unsuccessful commission of offence is preceded by mens rea moral guilt and its 12. There is a visible distinction between ‘preparation’ and stage of ‘preparation’ consists of deliberation devising or arranging the means or measures which would be necessary for the offence starts immediately after the completion of preparation ‘Attempt’ is the execution of mens rea after preparation Attempt’ starts where `preparation’ comes to an end though it 13. However if the attributes are unambiguously beyond the stage an ‘attempt’ to commit the principal offence and such ‘attempt’ in itself is a punishable offence in view of Section 511 IPC. The ‘preparation’ or ‘attempt’ to commit the offence will be and only elementary exercise was undertaken and if such preparatory acts cause a strong inference of the likelihood of commission of the actual offence the accused will be guilty of preparation to commit the crime which may or may not be commit offences which are not made punishable by other specific sections of the Code and it provides inter alia that “whoever attempts to commit an offence punishable by this Code with imprisonment for life or imprisonment or to cause such an offence to be committed and in such attempt does any act towards the commission of the offence shall where no express provision is made by this Code for the punishment of such attempt be punished with imprisonment of any description half of the imprisonment for life or as the case may be one­half The definition of ‘Rape’ before the 2013 Amendment used to provide that “A man is said to commit “rape” who except in the case hereinafter excepted has sexual intercourse with a woman under circumstances falling under any of the six following Fifthly.— xxx xxx xxx Sixthly.—With or without her consent when she is Explanation.—Penetration is sufficient to constitute wife the wife not being under fifteen years of age is not 16. A plain reading of the above provision spells out that sexual male organ into the female parts however slight it may be. This Court has on numerous occasions explained what ‘penetration’ the accused was within the labia of the pudendum of the woman no matter how littleundressing the victims and rubbing and there was a sheer providential escape from actual 22. The deposition by the victims are impeccable. Both have unequivocally stated as to how the establish their innocence and evince a natural version without 23. Additionally the feeble contention regarding the contradiction otherwise this contradiction can at best be seen as a mere ‘exaggeration’ on behalf of a child witness whose remaining and again reiterated that the victim’s deposition even on a In our considered opinion the act of the respondent of luring the minor girls taking them inside the room closing the knowledge was the end of ‘preparation’ to commit the offence His following action of stripping the prosecutrices and himself an endeavour to commit sexual intercourse. These acts of the respondent were deliberately done with manifest intention to to commit rape as punishable within the ambit and scope of 25. The findings given contrarily by the High Court in ignorance of the material evidence on record are perverse and u n tenable in the eyes of law. We thus allow the appeal set Court. The respondent is directed to surrender within two Police Authorities are directed to arrest him and send a

Marriage can be dissolved based on the mutual consent of the parties and mother is appointed as a natural guardian and permanent custodian of the children : High Court of Kerala

Marriage can be dissolved based on the mutual consent of the parties. In regard to the custody of the children, the petitioner-mother is appointed as a natural guardian and permanent custodian of the children namely, Dakshina and Dekshith. It is agreed by both parties that the children will be taken to Kuwait by the petitioner-mother, the natural guardian and permanent custodian was upheld by High Court of Kerala through the learned bench led by HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE in the case of DIVYA RAJAN vs BINEESH P.B. (0P /FCI NO. 492 0F: 2021) on 17th March, 2022. Brief facts of the case are that The petitioner-mother and the 1st respondent-father are nor residents of India and currently employed in Kuwait. The marital disputes between them are pending before the family Court, chavara and the Famiily Court, Ernakulan. The parties resolved their dispute and filed a joint petition for divorce invoking Section 1 3 8 of the Hinds Marriage Act, 1955. The parties also have entered into an agreement regarding custody of the children born in their wedlock There are disputes regarding the maintenance. In regard to the quantum of maintenance payable to the children by the 1st respondent-father, the parties have agreed for resolution of the disputes. They are firm in their decision to dissolve their marriage. And the statutory cooling off period can be waived ` since the parties are living separately for the last more than several years and the petitioner-wife filed the divorce petition in the year 2019. Court is of the view that the marriage can be dissolved based on the mutual consent of the parties. In regard to the custody of the children, the petitioner-mother is appointed as a natural guardian and permanent custodian of the children namely, Dakshina and Dekshith. It is agreed before this Court by both parties that the children will be taken to kuwait by the petitioner-mother, the natural guardian and permanent custodian. The 1st respondent-father will have the custody of the children on every Friday between 10 am and 5 pm. If the children are taken to Kuwait, the respondent-father shall pay a sum of Rs.5000/-(Rupees Fife Thousand only) each to the children as maintenance. However, if the children remains in India, the lot respondent-father is bound to take care of the children.

IN THE HIGH COURT 0F KERALA AT ERl\IAKULAM THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE THE HONOURABLE MRS. JUSTICE SOPHY THOMAS THURSDAY "E 17TH DAY 01= MARCH 2022 26TH PHALGUNA 1943 AeAINST THE ORDER ]uDGMENT IN Op Gw 206® 2®2® OF I:AMILy 0P FCI NO. 492 0F: 2021 COURT ERNAKU LAM DIVYA RAJAN AGED 35 YEARS W 0. BINEESH P.B. THUMPA VILAYIL HOUSE AKDUVINAL P.0. VALLIKUNNAM MURI VALLIKUNNAM VILLAGE ALAPPUZHA DISTRICT NOW RESIDING AT AMBADIYIL HOUSE PAVUMPA P.0. KARUNAGAPALLY TALUK KOLLAM DISTRICT PIN 690 574 BY ADVS P . HARI DAS P . C . SHIJIN RISHIKESH HARIDAS BIJU HARIHARAN BINEESH P.B. AGED 39 YEARS S 0 BABY RESIDING AT PISHARIKATTIL HOUSE MANAKUNNAM VILLAGE P00THOTTA P.0. ERNAKULAM DISTRICT PIN 682 307 BABY AGED 66 YEARS FATHERS NAME NOT KNOWN T0 THE PETITIONER RESIDING AT PISHARIKATTIL HOUSE MANAKUNNAM VILLAGE P00THOTTA P.0. ERNAKULAM DISTRICT PIN 682 NIRMALA AGED 60 YEARS W 0. BABY RESIDING AT PISHARIKATTIL HOUSE MANAKUNNAM VILLAGE P00THOTTA P.0. ERNAKULAM DISTRICT PIN 682 307 BINU AGED 37 YEARS S 0. BABU RESIDING AT PISHARIKATTIL HOUSE. MANAKUNNAM VILLAGE P00THOTTA P.0. ERNAKULAM DISTRICT PIN 682 307 BABY DAKSHINA AGED 6 YEARS D 0. BINEESH P.B AND DIWA RAJAN RESIDING AT PISHARIKATTIL HOUSE MANAKUNNAM OP ffi NO. 492 0F 2oZI VILLAGE P00THOTTA P O. ERNAKULAM DISTRICT PIN 682 307. DEKSHITH AGED 4 YEARS S 0. BINEESH P.B. AND DIVYA RAJAN RESIDING AT PISHARIKATTIL HOUSE MANAKUNNAM VILLAGE P00THOTTA P.0. ERNAKULAM DISTRICT PIN 682 307. . ADDL. THE COMMISSIONER 0F POLICE KOCHI OFFICE 0F THE COMMISSIONER 0F POLICE ABDUL KALAM MARG MARINE DRIVE ERNAKULAM PIN 682011 ADDL. R7 IMPLEADED AS PER THE ORDER DATED 22 12 21 IN IA 1 2021 IN 0P(FC) 492 2021 ADDL. THE STATION HOUSE OFFICER UDAYAMPER00R POLICE STATION SH 15 UDAYAMPER00R KANDANAD ERNAKULAM PIN 682307 ADDL. R8 IMPLEADED AS PER THE ORDER DATED 22 12 21 IN IA 1 2021 IN 0P(FC) 492 2021 ADDL R9. THE REGIONAL PASSPORT OFFICER REGIONAL PASSPORT OFFICER TRIVANDRUM REGIONAL PASSPORT OFFICE SNSM BUILDING 3 4TH FLOOR KAITHAMUKKU PETTA RD. THIRUVANANTHAPURAM KERALA 695024 ADDL. R9 IMPLEADED AS PER THE ORDER DATED 22 12 21 IN IA 4 2021 IN 0P(FC) 492 2021 THE AUTHORIZED OFFICER PASSPORT SEVA KENDRAN KOLLAM PASSPORT SEVA KENDRAM KOLLAM 74 BUILDING # MC VIII 1578 715 ASN TRUST COMPLEX NEAR KOLLAM MUNICIPAL CORPORATION OFFICE VELLAPPALLY NAGAR KOLLAM KERALA ADDL. R10 IMPLEADED AS PER THE ORDER DATED 22 12 21 IN IA 4 2021 IN 0P(FC) 492 2021 BY ADVS T.U SUJITH KUMAR SRI.SUVIN R.MENON CGC THIS 0P HAVING BEEN FINALLY HEARD 0N 17.03.2022 THE COURT 0N THE SAME DAY DELIVERED THE FOLLOWING OP qp NO. 492 0F 2021 A. Arfulhamed Musfaque. I This original petition was filed cliallenging art order relating to custody. The petitioner mother and the lst respondent father are nor residents of India and currently employed in Kuwait. The marital diaputes between them are pending before the family Court chavara and the Falnily Court Ernakulan. The parfes resolved their disprfes and filed a joint petition for divorce involdrig Section 1 3 8 of the Hinds Marriage Act 1955. The parties also have entered into ari agreement regarding custody of the children born in their wedlock There are disputes regarding the mainteriarice. In regard to the quariftm of maintenance payable to the children I y the lst respondent father the parties have agreed for resolution of the 2. The petitioner appeared though online. She has been identified by the learried coimsel appearing for her. The lst respondent father is present before this Court. We interacted OP qp NO. 492 0F 20Z1 with both parties. They are firm in their decision to dissolve their marriage. The divorce petitions filed by the petitioner before the Family Cotut Chavara and by the lst respondent father before the Family Court Ernakulam are pending. We are of the view that the statutory cooling off period can be waived since the parties are living separately for the last more than several years and the petitioner wife filed the divorce petition in the year 2019 3. We are also of the view that the marriage can be dissolved based on the mutual consent of the parties. In regard to the custody of the children the petitioner mother is appointed as a natural guardiari and permanent custodian of the children namely Dakshina and Dekshith. It is agreed before this Court by both parties that the children will be taken to kuwait by the petitioner mother the natural guardian and permarient custodian. The lst respondent father will have the custody of the children on every Friday between 10 am and 5 pin. He is also permitted to contact the children whenever he wishes through Op qp NO. 492 Or 2Ozi video platform or over phone 4. The children are now at the parental house of the lst respondent. If the children are taken to Kuwait the lst respondent father shall pay a sum of Rs.5000 each to the children as maintenance. However if the children remains in India the lot respondent father is bourid to take care of the children. We record the terms arid conditions agreed by the parties in the 1 3 8 application and that will form part of the judgment. In the light of settlement above we dispose of this original petition with the following orders I. We direct Family Court Chavara to record the dissolution of marriage betveen the petitioner and the lst respondent by mutual consent without insisting further appearance of the parties in O.PNo.5019 within a period of two weeks 11. O.PNo.20620 before the Family court Emakulam shall be disposed of recording the settlement of the parties before this Court in regard to custody of the children OP ffl NO. 49z or 2021 Ill. We also direct the Family Court Emakulam to close O.PNo.16021 in the light of settlement arrived at between the parties before this Court IV. The petitioner is permitted to process the VISA as a sole guardian of the children and the petitioner alone will be responsible for taking the children to Kuwait V. The entire records including school records Aadhaar cards etc. shall be handed over by the respondents to the petitioner mother at the time in which the children are taken to OP ffl NO. 492 or 2ozi PETITIONER EXHIBITS Exhibit P1 Exhibit P2 Exhibit P3 Exhibit P4 APPENDIX 0F 0P NO.2®60 2020 BEFORE THE FAMILY COURT ERNAKULAM ORIGINALLY FILED BEFORE THE FAMILY COURT TRUE COPY 0F THE I.A.NO.4519 0F 2021 IN 0 P(G&W) NO.2060 2020 0F FAMILY COURT ERNAKULAM DATED 5.10.2021 TRUE COPY 0F TRANSCRIBED COPY 0F THE ORDER IN IA NO 4518 2021 IN 0.P.(G&W) NO.2060 2020 0F FAMILY COURT ERNAKULAM DATED 6.10.2021 TRUE COPY 0F THE POWER 0F ATTORNEY DATED 21. 06 2019 uwlul lJir . Z poe+ Gy`: i>.cb3.2c>T2_2 \n louzf+.j^JO. a t> `o3 . fo2 2 RE THE HONORABLE HIGH COURT OF KERALA AT I.A.No. j of 2022 o.p.(F.c.) Nor.¥92of 2o21 A Divya Rajan & Other : Applicants Petitioner 1st responclenl Bineesh.P.B & others : Respondents Re`spondent 2 9 APPLICATH®N FILEH) UNDER SE}CTION 13 a OF THB RIHNDU MARREAGE ACT 1955 btl Wi)`j Yto+\\b| uJvul • c`i . ` (ul3 pchiflancfdlrJ 4!pendn BEFORE THE H©N®RABELE HIGH COURT 0F KERAELA AT 0.P.(F.C.) N©.492 of 2021 PETHTHONER & 1ST RBSPONDENT 1 Divya Rajan aged 35 years W o Bincesh.P.B Thumpa Vilayil House Kaduvinal.P.O Vallikunnam Muri Vallikunnam Village Alappuzha District Now residing at Ambadiyil liouse Pavumpa.P.O Karuiiagapally Taluk Kollam District Pin 690574 represented by Iler mother and power of attorTiey holcler Sumangala Devarajan aged 57 years W o Devai ajan resiclent of Sheeja Bhavanam Maiia|)pally North.P.O Kari]nagappally Kollam District Pin: 690574 now rest.ding at Ambadi.vi House Pavumba.P.O Manappally Karunagappally Kollam District Pin: 690574 2 J3ineesh.P.B aged 39 years S o Baby residing at Pisharikattil House Manakunnam Vil]agc Poothotta.P.O Ei nakulam District Pin: 682307. No.509 2019 for appointing hei as guardian of the children and their permanent` custody before the Family Court Cha.vai a. Due to la.ck of j.urisdiction O.P(G&W) .No.509 2019 was ti ansferred to the Family Court Ernafulam and r.e numbered as O.P.(G&W) No.2060 2020 3. It is submitted that 2nd applicant filed O.P.No.1579 2019 befoi e the Family Court Ernakulam and obtained an expczrfe decree of restitution of conjugal rights j= on 27.04.2020. He also filed O.P.No.1604 2021 before the Family Coil.rt Ernakulam for divo`i:ce 4. It is submittea``that now the applicants have been living separately for a period more than one year and that they ha.ve not been able to live together and tha.t_±Lhey hay_e mutually agreed that the marriage should be dissolved 5. It is agi eed by the applicants that permanent custody of the children shall be with the lst applicant and she may be appointed as guardian of them. 2nd applicant is having no objection in taking the children abroad by the lsl 6. It also agreed between the applicants that 2ncl applicant shall give monthly maintenance to the children as fixed by this honourable court after hearing both the 7. It is agreed by the parties that they shall have liberty to approach appropriate forum for their proprietary and monetary claims against each other Under such circumstances this Honourable Court may be pleased to pass an order dissolving the marriage between the applicants solemnised at Anupama Auclitorium Pavumba on 10.04.2011 in the best interest of • _!iilr S Suj ithkumar T . U Counsel for the 2ntlApplicant lst Respt)ndent

When a document is written by one individual and signed by another, the former’s handwriting and the latter’s signature must also be proven: High Court of Himachal Pradesh

What Section 67 of the Evidence Act refers to is the signature of a witness who countersigns a document as a person who was present at the time when the document was signed by another person. Since, under Section 63 of the Indian Succession Act, the marginal witnesses while appearing have to prove under Section 68 of the Indian Evidence Act that the attestor had scribed the Will in their presence and after having heard and understood the same had signed or put her thumb impression in their presence and further that both attesting witnesses then appended their signatures in presence of the attestator. This remarkable judgment was passed by the High Court of Himachal Pradesh in the matter of ASHIQ ALI & ORS V YASIN MISTRI & ORS [RSA NO. 623 & 624 OF 2008] by Honourable Justice Tarlok Singh Chauhan. Both parties are deceased, hence, were represented through their legal representatives. Both the appeals were taken together since there were common facts and laws applicable. The facts of the case are that respondent 1 filed a suit for declaration and a permanent prohibitory injunction against the appellants since he alleged that the disputed Will was executed by the mother of appellant 1, respondents, and grandmother of the appellants 2 to 4 in respect of properties owned and possessed by her in favour of the appellants 2 to 4 as illegal and wrong. The Trial Court decreed the Will to be valid to the extent of 1/3rd share and the remaining 2/3rd share was held to have devolved upon the legal heirs of late Smt. Tulsa. Feeling aggrieved two appeals by each party was filed wherein the appeal filed by respondent 1 was allowed an appeal filed by the appellants was dismissed in favour of the appellants to the extent that the Will is held to be legally and validly executed by Smt. Tulsa was set aside in its entirety. Assailing this order, the instant appeal was filed. The HC observed that “the parties in dispute are Muslims and governed by Mohammedan Law and the law of Will as prescribed in Chapter-III, Rule 184 of the Mohammedan Law makes it clear that a Will may be executed in writing or oral, showing a clear intention to bequeath the property. However, a limitation is also prescribed that a valid Will by a Mohammedan will not be for more than 1/3rd of the surplus of his/her estate and that to a non-heir. The Muslim Law of Will by Mulla “Principles of Mohammedan Law” provides for a Will in Chapter-IX in Sections 115,116 and 117.” The Court relied on judgment Miyana Hasan Abdulla v. the State of Gujarat, AIR 1962 and stated that “In Section 67 of the Evidence Act, 1872 it is amply clear that where the document is written by one person and signed by another, the handwriting of the former and the signature of the later have both to be proved in view of Section 67 of the Evidence Act. What Section 67 of the Evidence Act refers to, is the signature of a witness who countersigns a document as a person who was present at the time when the document was signed by another person.” Thus, the HC asserted that “no exception can be taken to this part of the findings recorded by the learned first Appellate Court, whereby it drew an adverse inference against the appellants for not examining the scribe of the document Shri Shamshad Ahmed Qureshi, who was very much alive at that time and even, in case, he was suffering from ailment his statement could have conveniently been recorded on commission. The non-examination of the scribe assumes importance because the witness does not state to have witnessed Smt. Tulsa, the testator, putting her signatures over the Will.”

Hig h C o urt of H.P on 27 04 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLARSA No. 6208 a wRSA No. 6208Reserved on: 08.04.2021Date of decision: 20.4.2021RSA No. 6208Ashiq Alithrough his LRs and others …..Appellants. VersusYasin Mistrithrough his LRs and others ….Respondents. RSA No. 6208Ashiq Alithrough his LRs and others …..Appellants. VersusYasin Mistrithrough his LRs and others ….Respondents. CoramThe Hon’ble Mr. Justice Tarlok Singh Chauhan Judge.Whether approved for reporting 1 No.For the Appellants : Mr. Y. P. Sood Advocate. For the Respondents : Mr. Bimal Gupta Sr. Advocate with Ms. Poonam Moghta Advocate for respondents No. 1(a) to 1(h).Mr. Vinod Chauhan Advocate for respondents No. 2(a) and 2(b).1 Whether reporters of Local Papers may be allowed to see the Judgment Yes Hig h C o urt of H.P on 27 04 HCHP 2Tarlok Singh Chauhan JudgeSince common questions of law and facts arise forconsideration in both the appeals they are taken up together and arebeing disposed of by way of a common judgment. 2.Briefly stated the facts of the case are that respondent No.1 filed a civil suit for declaration and permanent prohibitory injunctionagainst the appellants alleging herein that the Will Exhibit DW 2 Aexecuted by the mother of appellant No. 1 respondents andgrandmother of the appellants No. 2 to 4 in respect of propertiesowned and possessed by her in favour of the appellants No. 2 to 4 isillegal and wrong and she did not execute any legal and valid willduring her lifetime nor she could execute the Will as per the PersonalLaw applicable to the parties and it was further the case of respondentNo. 1 that in case the Will is held to be legally validly executed in thatevent also the same is not valid beyond 1 3rd share as the Will beyond1 3rd share by Muslim is not permissible under the Personal Law.2.The appellants contested the claim of respondent No. 1with respect to the genuineness of the Will and averred that the WillExhibit DW 2 A is the last legal and valid Will executed by late Smt.Tulsa in favour of the appellants No. 2 to 4 and this fact about theexecution of the Will was also in the knowledge of respondent No. 1. In Hig h C o urt of H.P on 27 04 HCHP 3pursuance to the Will which was registered after the death of Smt.Tulsa mutation of inheritance was also entered and attested in favourof appellants No. 2 to 4.3.The learned Trial Court after framing the issues andevaluating the evidence decreed the suit partly by holding the Will tobe duly executed in accordance with law however it came to theconclusion that as the personal law applicable to the parties did notpermit Smt. Tulsa to execute the Will beyond 1 3rd of her property therefore Will was held to be valid only to the extent of 1 3rd shareand remaining 2 3rd share was held to have devolved upon the legalheirs of late Smt. Tulsa.4.The appellants feeling aggrieved and dis satisfied with thejudgment and decree passed by the learned Trial Court filed anappeal before the learned Appellate Court below claiming therein thatthe Will be held to be legal and valid in its entirety and respondent No.1 also filed separate appeal assailing the decree to the extent whichwas against him. The learned first Appellate Court below decided boththe appeals vide a common judgment and decree and the appeal filedby respondent No. 1 was allowed whereas appeal filed by theappellants was dismissed and the finding recorded by the learned TrialCourt below in favour of the appellants to the extent that the Will is Hig h C o urt of H.P on 27 04 HCHP 4held to be legally and validly executed by Smt. Tulsa were set aside inits entirety.5.Feeling aggrieved and dis satisfied with the impugnedjudgments and decrees passed by both the Courts below theappellants preferred the Regular Second Appeals which came to beadmitted on 24.11.2008 on the following substantial questions of law: “1. Whether adverse interference against the due execution of legaland valid Will could be drawn by the learned Appellate Court belowfor not examining the scribe to prove the Will 2. Whether the learned first appellate court below has misread andmis appreciated the statement of DW 2 Lavinder Singh attestingwitness who has supported the due execution and attestation of theWill and the findings recorded by the first appellate court below arevitiated on this Count ”Substantial questions of Law No. 1 and 2Since both the questions are interlinked and interconnected therefore they are taken up together for consideration andare being answered by common reasoning. 6.At the outset it needs to be observed that the parties tothe lis are Muslims and governed by Mohammedan Law and the law ofWill as prescribed in Chapter III Rule 184 of the Mohammedan Lawmakes it clear that a Will may be executed in writing or oral showing aclear intention to bequeath the property. However a limitation is also Hig h C o urt of H.P on 27 04 HCHP 5prescribed that a valid Will by a Mohammedan will not be for morethan 1 3rd of the surplus of his her estate and that to an non heir. TheMuslim Law of Will by Mulla “Principles of Mohammedan Law”provides for a Will in Chapter IX in Sections 115 116 and 117.7.It would be noticed that the learned first Appellate Courthas drawn an adverse inference against the appellants on the groundthat the scribe of the Will Shri Shamshad Ahmed Qureshi even thoughlive has not been produced in the witness box. This would be clearlyevident from the para 19 of the judgment which reads as under: “The will is shown to have been scribed by the documents writer ShriShamshad Ahmed Qureshi and attested by Mohd. Ramzan andLovender Singh. It would be seen that scribe Shamshad is alive buthas not been produced in the witness box. DW 1 Ashiq Ali in hiscross examination has admitted that Shamshad Qureshi is alive andresiding in Gunnughat at Nahan. Although he has stated that he hasheart trouble and he is not in a position to walk but his statementcould have been got recorded by getting a local commissionerappointed. No such steps were taken by the defendants. Oneattesting witness Lovender Singh has been produced whereasanother attesting witness Mohd. Ramzan has died. Since Mohd.Ramzan is no more the scribe who is alive should have beenproduced in the witness box. His non production or for non gettinghis evidence recorded by appointment of commission an adverseinterference is required to be drawn against the execution of the Will.Then Lovender Singh does not state to have witnessed Smt. Tlsaputting her signatures. As already stated Mohd. Ramzan has alreadydied and scribe Shamshad Ahmed Qureshi has not produced thusthere is no evidence to prove that the witness had seen Smt. Tulsa Hig h C o urt of H.P on 27 04 HCHP 6putting her signatures over the Will. Under Section 63 of IndianSuccession Act the marginal witnesses while appearing have toprove under Section 68 of the Indian Evidence Act that the attestorhad scribed the Will in their presence and after having heard andunderstood the same had signed or put her thumb impression in theirpresence and further that both attesting witnesses then appendedtheir signatures in presence of the attestator. These requirements oflaw have not been proved to have been fulfilled by Lovender Singh the only attesting witness produced in the Court. Regarding themode of execution the case cited in 2007RCR 240 is referred to.Also the case cited in PLR 1998524 is relevant. These wereheld to be the inherent defects in the execution of the Will in thecitation CCC 1996Supreme Court 37.”8.It is vehemently argued by Shri Y. P. Sood learnedcounsel for the appellants that the findings recorded by the learnedCourts below are totally perverse as there was no requirement of lawto examine the scribe of the Will more especially when one of theattesting witness i.e. Lovender Singh in this case has already beenexamined.9.On the other hand Shri Bimal Gupta learned SeniorAdvocate duly assisted by Ms. Poonam Moghta learned Advocate would argue on the strength of the judgment of this Court in MehandiHassan and others vs. Rafiquan and others2 Shim. LC. 231that the mode of proving the Mohammedan Will is different fromproving Will governed by the provisions contained in Part VI of Indian Hig h C o urt of H.P on 27 04 HCHP 7Succession Act 1925. While a Mohammedan Will is required to beproved under Section 67 of the Evidence Act 1872 a Will governed bythe provisions contained in Part VI of the Indian Succession Act 1925 is required to be proved as laid down under Section 68 of the EvidenceAct 1872. Therefore the validity of the will in question Exhibit DW 2 Ais required to be examined under the provisions of Section 67 of theEvidence Act.10.Section 67 of the Evidence Act reads as under: “67. Proof of signature and handwriting of person alleged to havesigned or written document produced. If a document is alleged to besigned or to have been written wholly or in part by any person thesignature or the handwriting of so much of the document as isalleged to be in that person’s handwriting must be proved to be in hishandwriting.”11.Where the document is written by one person and signedby another the handwriting of the former and the signature of the laterhave both to be proved in view of Section 67 of the Evidence Act.What Section 67 of the Evidence Act refers to is the signature of awitness who counter signs a document as a person who was presentat the time when the document was signed by another person. Thiswas so held by the learned Division Bench of the Gujarat High Court inMiyana Hasan Abdulla and another vs. State of Gujarat AIR 1962Gujarat 214 and I see no reason to take a different view. Hig h C o urt of H.P on 27 04 HCHP 812.In such circumstances obviously no exception can betaken to this part of the findings recorded by the learned first AppellateCourt whereby it drew an adverse inference against the appellants fornot examining the scribe of the document Shri Shamshad AhmedQureshi who was very much alive at that time and even in case hewas suffering from ailment his statement could have conveniently beenrecorded on commission. The non examination of the scribe assumesimportance because the witness Lovender Singh DW 2 does not stateto have witnessed Smt. Tulsa the testator putting her signatures overthe Will.Substantial questions of law are answered accordingly.13.In view of the aforesaid discussion I find no merit in theseappeals and the same are accordingly dismissed so also pendingapplication(s) if any. Parties are left to bear their own costs.

No relaxation in the terms and conditions contained in the advertisement unless the power of relaxation is duly reserved with concern authority: Patna High Court.

The selection process has to be conducted strictly in accordance with the stipulated selection procedure. Consequently, when a particular schedule is mentioned in a announcement, the same must be scrupulously sustained. There can be no relaxation in the terms and conditions of the advertisement, unless such power is specifically reserved. The petitioner filed a writ petition to directed respondent to treat petitioner under reserved category. The judgment was given by the High court of Bihar on the 23.08.2021 in the case of Kumari Anita vs. The State Of Bihar through the Principal Secretary, Department of Health, and others. Case No.[24816 of 2018.] By the Hon’ble Mr. Justice Anil Kumar Sinha. The counsel for petitioner was Mr. Ajay Kumar Thakur, Advocate Mr. Nilesh Kumar, Advocate Mr. Pravin Kumar, Advocate Mr. Shashank Shekhar, Advocate Mr. Udbhav, Advocate and counsel for respondent represented by Mr. Satyam Shivam Sundaram, Advocate. The petitioner has completed her revised auxiliany nurse midwifery course from Tirhut A.N.M training school Muzaffarpur and start workings as A.N.M at primary health center, Dariyapur. The Bihar governments give an advertisement for the appointment of A.N.M in the department of health government. The  petitioner applied for this post under E.B.C category along with requisite certificates including caste certificate of E.B.C and petitioner belong to the “LOHARA” caste which come under E.B.C. The petitioners call for interview on 30.11.2016 and before appearance for interview, obtained caste certificate from competent authority. The petitioner name was not on final list of ST & E.B.C whereas the cut-off makes for ST was 39.28 and M.B.C 45.82 and petitioner obtain 59.67. The reservation clause of advertisement stated that the no change in the reservation category will be allowed subsequently once a candidate has claimed a particular reservation category.  The counsel for petitioner said that the commission has acted arbitrarily not declaring the result of the petitioner for the post of A.N.M under reserved category of ST. Further it was stated that before appearing for interview, the petitioner submitted caste certificate on said date. The counsel submitted that the State government comes out with some changes in caste category due to which, caste category of petitioner also changed. Counsel stated that the concerned authority refused to give non creamy layer certificate to the person belonging to “LOHARA”. And as per term of the advertisement the caste certificate/non creamy layer certificate was required to be produced at the time of interview and the caste category of the petitioner had changed from E.B.C/M.B.C to ST, so petitioner had no option but to produce caste certificate only not non creamy layer certificate. The state government made the changes in caste category therefore the caste category of petitioner also changed and petitioner cannot be penalized for that. The counsel for the respondent submitted that the petitioner had applied under E.B.C which would be evident from the application form and the petitioner failed to submit the non creamy layer certificate at the time of interview. And it is settled law that the terms of advertisement has to be followed strictly. The counsel stated that in clause (ii) and (iii) of the reservation clause clearly mention that the candidate was required to excise his/her option of reservation category at the time of filling of application form & under no circumstance a candidate shall be allowed to change the category of reservation. The high court of Bihar relied upon a division bench of the Patna High court in judgment of Vandana Govindam vs. the State of Bihar and Ors. (2011 (2) PLJR 585) was held that “every candidate seeking employment in Public Service has to abide by the terms and conditions of the advertisement and / or selection” The Court relied upon Supreme Court on judgment of Harpal Kaur Chahal v. Director, Punjab Instructions held that “it is to be seen that when the recruitment is sought to be made, the last date has been fixed for receipt of the applications. Such of those candidates, who possessed of all the qualifications as on that date, alone are eligible to apply for and to be considered for recruitment according to Rules.” The court after considered entire matter and heard both the counsel, stated that the petitioner had submitted application form for the post of A.N.M under E.B.C/M.B.C candidate & on the date of interview the petitioner failed to produce certificate of non creamy layer therefore the respondent have a right to not treat the petitioner to be E.B.C candidate and decided to treat him in general category. It is also admitted position that the Government letter was issued much after the last date of submission of the application form for appointment on 08.08.2016. There is no plea in the writ application that the petitioner had taken any step to obtain non creamy layer certificate at the time of submission of the application form or just thereafter. This shows the callous attitude of the petitioner and the petitioner was not diligent enough to obtain the requisite non-creamy layer certificate at the time of submission of the application form or just thereafter. The law is well settled that any change in status or caste will take effect prospectively and cannot relate back to a date specially when the notification does not indicate so. The Schedule Tribe certificate dated 11-11-2016 produced by the petitioner at the time of the interview would be amount of incompatibility between the statement made by the petitioner in the online application form and the change of category that the petitioner claimed at the time of the interview that is not permitted under the terms and conditions of the advertisement. Therefore, the court did not find any merit in the writ application and the same is dismissed.

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.248118 Kumari Anita wife of Sanjay Kumar Sharma resident of village Dumahar Khurd P. S. Darauli District Siwan ... Petitioner s The State Of Bihar through the Principal Secretary Department of Health Government of Bihar Patna Principal Secretary Department of Health Government of Bihar Patna Principal Secretary Department of General Administration Government of Bihar Patna. 4. Additional Secretary Department of General Administration Government of Bihar Patna. 5. Director in Chief Health Services Government of Bihar Patna. Bihar Karamchari Chayan Ayog through its Secretary Veterinary College Chairman Bihar Karamchari Chayan Ayog Veterinary College Patna ... Respondent s For the Petitioner s Mr. Ajay Kumar Thakur Advocate Mr. Nilesh Kumar Advocate Mr. Pravin Kumar Advocate Mr. Shashank Shekhar Advocate Mr. Udbhav Advocate Mr. Satyam Shivam Sundaram Advocate A.C. to GP 25 CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR SINHA For the Respondent s direction to the respondent authorities to declare the petitioner selected as a reserved category candidate for the post of Auxiliary Nurse Midwifery pursuant to Advertisement No. 03010216 dated 17.02.2016dt.23 08 2021 A.N.M. at Primary Health Centre Dariyapur in the district of Saran on contract basis. The petitioner further stated that the Bihar Staff Selection Commission issued advertisement on 17.02.2016 appointment of A.N.M. in the Department of Health Govt. of Bihar vide Advertisement No. 03010216 examination of which was to be conducted by the Commission. The date of submission of Online application was fixed from 24.02.2016 to 18.03.2016. According to the petitioner the petitioner was fulfilling the requisite qualification and applied for the post of A.N.M. under E.B.C. category along with requisite certificates including caste certificate of E.B.C. as in the month of February 2016 the “LOHARA” caste of the petitioner was in the category of Extreme Backward Class. The petitioner was issued counselling cum interview letter dated 29 09 2016 Petitioner has annexed Annexure 3 to the writ petition by which on 08.08.2016 the General Administration Department Govt. of Bihar issued a letter to different functionaries including the Commission by which the State Government conveyed its approval for issuance of certificate of Scheduled Tribe in favour of the persons belonging to “LOHARA” caste. The said communication has been issued in the light of Repeal and Patna High Court CWJC No.248118(3) dt.23 08 2021 Amending Act 2016whereby the Constitution Schedule Tribes) Order Amendment Act 2006issued caste certificate dated 11.11.2016 in the category of Schedule Tribe. The petitioner in paragraph 11 of the writ petition has stated that on the date of counselling interview the petitioner produced all original certificates including the certificate of her caste which she had declared at the time of filling up of online application form as E.B.C. as well as certificate of Schedule Tribe dated 11 11 2016 The petitioner contended that in the list of the successful candidates published by the Commission the name of the petitioner did not find place either in the Scheduled Tribe or Most Backward Class category whereas the cut off marks for Scheduled Tribe was 39.28 and Most Backward Class was Patna High Court CWJC No.248118(3) dt.23 08 2021 45.82. 4. Respondent nos. 6 & 7 Commission filed a counter affidavit controverting the claim of the petitioner stating therein that petitioner had applied under Extremely Backward Category which would be evident from her application. In paragraph 8 of the counter affidavit the respondents have stated that from perusal of reservation clause of the advertisement it would be evident that the terms of advertisement clearly stipulated that no change in the reservation category will be allowed subsequently once a candidate has claimed a particular reservation category. The said clause further stipulates that under no circumstances any request for correction change in the category of reservation shall be entertained. For claiming wrong reservation category she was kept in unreserved category. The petitioner obtained 59.6667 as final marks whereas the cut off marks for unreserved category is 65.72. Therefore the name of the petitioner did not find place in the list of selected candidates for the post of A.N.M. The respondents have annexed Annexure C to the counter affidavit which is letter issued by Under Secretary Govt. of Bihar dated 16.05.2018 addressed to the Secretary Bihar Staff Selection Commission Patna stating therein that Patna High Court CWJC No.248118(3) dt.23 08 2021 once the selection process has started no amendment shall be allowed during the course of selection unless any change in the Rules Regulations of selection has been made applicable with 5. The petitioner has filed reply to the counter affidavit stating therein that from perusal of Annexure 3 to the writ petition it would be evident that letter of State Government dated 08.08.2016 was circulated to all concerned including the Commission by which the caste of the petitioner was changed from M.B.C. E.B.C. to Schedule Tribe and the petitioner has not made any request for change in the reservation category but has produced certificate of Schedule Tribe which was given to her on account of change in the category of caste of the petitioner by the State Government for which the petitioner cannot be put to blame. Further in paragraph 9 of the reply to the counter affidavit referring to Annexure B Series at page no. 19 the petitioner has stated that while preparing Check List the Commission has given remarks that in the online application the petitioner has given reservation category as M.B.C. but the caste certificate dated 11.11.2016 of Schedule Tribe has been submitted. Therefore she can be considered as S.T. candidate but in spite of that in the last it has been written in the Check Patna High Court CWJC No.248118(3) dt.23 08 2021 List “to post the petitioner in general category”. In paragraph 10 of the reply to the counter affidavit the petitioner has stated that from Annexure B Series at page nos. 18 19 it would be evident that candidature of the petitioner has been rejected on the ground that her caste at the time of filling of Online application was M.B.C. and at the time of counselling the petitioner declared her caste as Schedule Tribe due to which the petitioner has been placed in the general category 6. On the basis of the pleadings of the parties the issue which requires determination is as to whether the respondent Commission was justified in considering the petitioner’s candidature against opendt.23 08 2021 counselling was fixed by the Commission on 30.11.2016 and on the said date the petitioner produced the certificate regarding her caste category dated 11 11 2016 of Schedule Tribe which would be evident from Annexure A Series at internal page no. 8 to the counter affidavit filed by the Commission. Learned counsel further submits that prior to the date of interview the State Govt came out with letter dated 08 08 2016 by which the State Govt allowed the concerned authority to issue the caste certificate of Schedule Tribe in favour of persons belonging to “LOHARA” caste to which the petitioner belongs. Learned counsel thus submits that on the date of interview counselling i.e. on 30.11.2016 the petitioner produced Schedule Tribe certificate because the concerned authority refused to issue non creamy layer certificate to the persons belonging to “LOHARA” caste after 08 08 2016. Learned counsel further contended that as per the terms of advertisement the case certificate non creamy layer certificate was required to be produced at the time of interview and since before the date of interview on 30.11.2016 the caste category of the petitioner had changed from E.B.C. M.B.C. to Schedule Tribe as such petitioner had no option but to produce the caste certificate of Schedule Tribe on the date of interview. Learned counsel further submits that it was due to the Patna High Court CWJC No.248118(3) dt.23 08 2021 decision of the State Govt. that the caste of the petitioner was changed and the petitioner cannot be penalized by the respondents for not producing the non creamy layer certificate on the basis of the option of the petitioner exercised at the time of filling of the online application form because the concerned authorities refused to issue non creamy layer certificate after 08 08 2016 by which the State Govt. directed for issuance of certificate of Schedule Tribe in favour of the persons belonging to “LOHARA” caste 9. On the other hand learned counsel for the respondents Commission submitted that admittedly the petitioner applied under E.B.C. which would be evident from the application form and the petitioner failed to submit the required certificate of non creamy layer at the time of interview and claimed herself as Schedule Tribe and produced the certificate of Schedule Tribe dated 11.11.2016 which is contrary to the option of reservation category exercised by the petitioner at the time of filling of her application form for the post of A.N.M. Learned counsel further submits that it is settled law that the terms of advertisement has to be followed strictly Referring to Annexure 1 to the writ petition i.e. copy of the advertisement dated 17.02.2016 learned counsel further submits Patna High Court CWJC No.248118(3) dt.23 08 2021 that clauseandof the reservation clause clearly stipulate that the candidate was required to exercise his her option of reservation category at the time of filling of application form and under no circumstances a candidate shall be allowed to change the category of reservation subsequently and in case of failure on the part of the candidate to produce the requisite certificate of caste non creamy layer etc. on the basis of declaration made in the online application form at the time of interview such a candidate shall be treated under the unreserved general category. Learned counsel further submits that in the entire writ application the writ petitioner has not stated that she had attempted to obtain non creamy layer certificate and that the concerned authority refused to grant non creamy layer certificate to the petitioner. According to the respondents there is no illegality and infirmity in putting the petitioner under unreserved category and since the petitioner has not secured cut off mark for unreserved category accordingly the petitioner was not selected for the post of A.N.M 10. I have heard learned counsel for the parties and have carefully gone through the materials available on record The terms of advertisement at Annexure 1 to the writ application relates to reservation clause which clearly discloses Patna High Court CWJC No.248118(3) dt.23 08 2021 as follows: vkj{k.k %& ¼ i ½ vkosnu i= esa] fu r izfof"V ds v khu bafxr vkj{k.k dk nkok ugha djus ij vkj{k.k dk ykHk ugha feysxkA lkekU iz kklu foHkkx ds ifji= la[ k 70] fnukad & 11 06 1996 oa fcgkj vf kfu e 15 @ 2003 ds vkyksd esa jkT k khu lsokvksa esa vkj{k.k dk ykHk jkT ds ewy oklh dks gh ns gSA ¼ ii ½ vkjf{kr mEehnokjksa ds fy s] jkT ljdkj }kjk vf klwfpr vapykf kdkjh }kjk fuxZr tkfr izek.k i= @ Øheh ys j jfgr izek.k i ekU gksaxsA lk{kkRdkj ds le vkWuykbZu vkosnu i= ds lkFk Øhehys j jfgr izek.k i= @ tkfr izek.k i= layXu ugha djusokys vH FkhZ lkekU Js.kh ds ekus tk saxs rFkk mUgsa vkj{k.k dk ykHk ns ugha gksxkA vH FkhZ vkosnu i= Hkjrs le bl ckr dk ku j[ksaxsa fd os ftl vkj{k.k Js.kh ds vUrxZr vkrs gksa] mlh vkj{k.k Js.kh dk nkok djsaxsA ¼ iii ½ vkWuykbZu vkosnu&i= esa nkok fd s x s vkj{k.k Js.kh esa fdlh Hkh ifjfLFkfr esa ifjorZu ugha fd k tk sxk rFkk bl laca k esa fdlh Hkh vkosnu ij fopkj ugha fd k tk sxkA xyr vkj{k.k dk nkok djus ij mUgsa vukfj{kr Js.kh esa ekuk 11. From perusal of the terms of advertisement it is evident that the candidate was required to make a claim of Patna High Court CWJC No.248118(3) dt.23 08 2021 reservation at the time of submission of online application form and the last date for submission of the online application form as per the advertisement was fixed on 18.03.2016. The advertisement further stipulated that the candidate was required to produce caste certificate non creamy layer certificate at the time of interview failing which such a candidate would be considered as general category candidate and no benefit of reservation shall be given to the candidate. Clauseof the terms of advertisement under reservation clause further clarifies that under no circumstances the reservation category once claimed at the time of submission of the online application form shall be allowed to change and the request of the candidate in this regard shall not be entertained under any circumstances Admittedly the petitioner at the time of submission of online application form claimed her reservation category as M.B.C. E.B.C. and not as Schedule Tribe 12. The interview letter dated 29 09 2016 at Annexure 2 to the writ petition also prescribed that if a candidate has claimed benefit of reservation in the Online application form in that case as per the advertisement the candidate must produce certificate of reservation non creamy layer of caste issued by the competent authority. From a conjoint Patna High Court CWJC No.248118(3) dt.23 08 2021 reading of the terms of the advertisement and the terms mentioned in the interview letter it is clear that there is negative stipulation in the advertisement which prescribes that in case of non submission of requisite caste non creamy layer certificate on the date of interview the category claimed by a candidate in the online application form would be denied and the candidate shall be treated as unreserved category candidate 13. A Division Bench of this Court in a judgment reported in 2011PLJR 585 Vandana Govindam vs. The State of Bihar and Ors. has held that every candidate seeking employment in Public Service has to abide by the terms and conditions of the advertisement and or selection. In paragraph nos. 11 & 14 of the said judgment the Division Bench has held as follows: “11. Having given our anxious consideration to the aforementioned submissions we would find that the appellant writ petitioner having not complied the terms of advertisement is not entitled to the benefit of reservation as an extremely backward candidate. In this context this Court would find that in the advertisement issued by the B.P.S.C. itself vide Annexure A to the counter affidavit in the writ application Clause 3 thereof had clearly mentioned that the candidates Patna High Court CWJC No.248118(3) dt.23 08 2021 seeking benefit of reservation in the backward category extremely backward category were required to furnish the caste certificate with reference to the subject of Creamy Layer in the prescribed Proforma issued by the Office of the District Magistrate or the Additional Collector authorized by him and in absence of such required caste certificate the benefit of reservation will not be extended. The appellant writ petitioner therefore in terms of the advertisement was required to file such caste certificate by 31st May 2005 which was the last date for filing such certificate. There would be therefore no difficulty in holding that the appellant writ petitioner having failed to satisfy the aforesaid condition no 3 of advertisement could not have been given the benefit of reservation and her candidate had to be confined to general category 14. By now it is well settled that every candidate seeking employment in public service has to abide by the terms and conditions of the advertisement and or selection and here in this case either Clause 3 of the advertisement or Clause 6 of the interview call letter had left for its speculation that a subsequent caste certificate could not have been entertained for giving the benefit of the extremely backward category. It is this aspect of the Patna High Court CWJC No.248118(3) dt.23 08 2021 matter which was decided by the Full Bench of this Court in the case of ‘Braj Kishore Prasad’wherein it was held that the supporting documents cannot be received after the last date fixed by the selecting 14. The terms of the advertisement prescribes the definite time schedule prescribed for submission of online application form as well as requisite certificates. It is now settled legal proposition that the last date in the advertisement or recruitment notice for submission of application form and the requisite certificates is prescribed to seek certain objectives inasmuch as the same puts all prospective candidates on notice with regard to eligibility suitability qualification that the selecting body desires a particular candidate to possess. The prescription of the last date also acts as an information to the prospective candidates to test and ascertain whether they are eligible to participate in the selection process. There are therefore upon prescription of such a last date dead line in the advertisement no shifting in the timeline will be allowed and the same must be adhered to. The prescription of such a condition in the advertisement also prevents any arbitrary action and denudes the authority from wielding a discretion which may be abused Patna High Court CWJC No.248118(3) dt.23 08 2021 15. The Hon’ble Apex Court in a case reported in 2013) 11 Supreme Court Cases 58 RAKESH KUMAR SHARMA Versus STATEAND OTHERS in paragraph nos. 12 13 14 15 17 & 19 has observed as follows: In U.P Public Service Commission v. Alpana this Court after considering a large number of its earlier judgments held that eligibility conditions should be examined as on last date for receipt of applications by the Commission. That too was a case where the result of a candidate was declared subsequent to the last date of submission of the applications. This Court held that as the result does not relate back to the date of examination and eligibility of the candidate is to be considered on the last date of submission of applications therefore a candidate whose result has not been declared up to the last date of submission of applications would not be eligible 13. A three Judge Bench of this Court in M.V. Nair v. Union of India held as under “9. ... It is well settled that suitability and eligibility have to be considered with reference to the last date for receiving the applications unless of course the notification calling for applications itself specifies such a date.” 14. In Harpal Kaur Chahal v. Director Punjab Instructions this Court held “2. ... It is to be seen that Patna High Court CWJC No.248118(3) dt.23 08 2021 15. This Court in Rekha Chaturvedi v University of Rajasthan held when the recruitment is sought to be made the last date has been fixed for receipt of the applications. Such of those candidates who possessed of all the qualifications as on that date alone are eligible to apply for and to be considered recruitment according to Rules.” “10. The contention that the required qualifications of candidates should be examined with reference to the date of selection and not with reference to the last date for making applications has only to be stated to be rejected. The date of selection is invariably uncertain. In the absence of knowledge of such date the candidates who apply for the posts would be unable to state whether they are qualified for the posts in question or not if they are yet to acquire the Unless advertisement mentions a fixed date with reference to which qualifications are to be judged whether the said date is of selection or otherwise it would not be possible for the candidates who do not possess the requisite qualifications in praesenti even to make applications for the posts. The uncertainty of the date may also lead to a contrary Patna High Court CWJC No.248118(3) dt.23 08 2021 consequence viz even candidates who do not have the qualifications in praesenti and are likely to acquire them at an uncertain future date may apply for the posts thus swelling the number of applications. But a still worse consequence may follow in that it may leave open a scope for malpractices. The date of selection may be so fixed or manipulated as to entertain some applicants and reject others arbitrarily. Hence in the absence of a fixed date indicated in the advertisement notification inviting applications with reference to which the requisite qualifications should be judged the only certain date for the scrutiny of the qualifications will be the last date for making the applications. ... Reference in this connection may also be made to two recent decisions of this Court in A.P. Public Service Commission v B. Sarat Chandra and Vizianagaram Social Welfare Residential School Society v. M. Tripura Sundari Devi 17. A three Judge Bench of this Court in Ashok Kumar Sharma v. Chander Shekhar reconsidered and explained the judgment of Ashok Kumar Sharma “6. The proposition that where applications are called for prescribing Patna High Court CWJC No.248118(3) dt.23 08 2021 a particular date as the last date for filing the applications the eligibility of the candidates shall have to be judged with reference to that date and that date alone is a well established one A person who acquires the prescribed qualification subsequent to such prescribed date cannot be considered at all. An advertisement or notification issued published calling for applications constitutes a representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to it. One reason behind this proposition is that if it were known that persons who obtained the qualifications after the prescribed date but before the date of interview would be allowed to appear for the interview other similarly placed persons could also have applied. Just because some the persons had applied notwithstanding that they had not acquired the prescribed qualifications by the prescribed date they could not have been treated on a preferential basis. Their applications ought to have been rejected at the inception itself This proposition is indisputable and in fact was not doubted or disputed in the majority judgment. The Court in Ashok Kumar Sharma further explained that the majority view in Patna High Court CWJC No.248118(3) dt.23 08 2021 Ashok Kumar Sharma was not correct rather the dissenting view by R.M. Sahai J. was correct as the Court held as under: “6. ... The reasoning in the majority opinion that by allowing the 33 respondents to appear for the interview the recruiting authority was able to get the best talent available and that such course was in furtherance of public interest is with respect an impermissible justification. It is in our considered opinion a clear error of law and an error apparent on the face of the record In our opinion R.M. Sahai J. was right in holding that the 33 respondents could not have been allowed to appear for 19. In Bhupinderpal Singh v. State of Punjab this Court placing reliance on various earlier judgments of this Court held ‘13. ...The High Court has held that the cut off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules and if there be no cut off date appointed by the rules then such date as may be appointed for the purpose in the applications that if there be no Patna High Court CWJC No.248118(3) dt.23 08 2021 such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications have to be received by the competent authority. The view taken by the High Court is supported by several decisions of this Court and is therefore well settled and hence cannot be found fault with. 16. The Hon’ble Supreme Court in a case reported in 2011) 12 Supreme Court Cases 85 BEDANGA TALUKDAR Versus SAIFUDAULLAH KHAN AND OTHERS in paragraph nos. 29 30 31 & 32 has held as follows: “29. We have considered the entire matter in detail. In our opinion it is too well settled to need any further reiteration that all appointments to public office have to be made in conformity with Article 14 of the Constitution of India. In other words there must be no arbitrariness resulting from any undue favour being shown to any candidate Therefore the selection process has to be conducted strictly in accordance with the stipulated selection procedure. Consequently when a particular schedule is mentioned in an advertisement the same has to be scrupulously maintained. There cannot be any relaxation in the terms and conditions of the advertisement Patna High Court CWJC No.248118(3) dt.23 08 2021 unless such a power is specifically reserved Such a power could be reserved in the relevant Statutory Rules. Even if power of relaxation is provided in the rules it must still be mentioned in the advertisement. In the absence of such power in the Rules it could still be provided in the advertisement. However the power of relaxation if exercised has to be given due publicity. This would be necessary to ensure that those candidates who become eligible due to the relaxation are afforded an equal opportunity to apply and compete. Relaxation of any condition in advertisement without due publication would be contrary to the mandate of equality contained in Articles 14 and 16 of the Constitution of India. 30. A perusal of the advertisement in this case will clearly show that there was no power of relaxation. In our opinion the High Court committed an error in directing that the condition with regard to the submission of the disability certificate either along with the application form or before appearing in the preliminary examination could be relaxed in the case of Respondent No. 1. Such a course would not be permissible as it would violate the mandate of Articles 14 and 16 of the Constitution of India 31. In our opinion the High Court was in error in concluding that Respondent 3 had not treated the condition with regard to the submission of the certificate along with the Patna High Court CWJC No.248118(3) dt.23 08 2021 application or before appearing in the preliminary examination as mandatory. The aforesaid finding in our opinion is contrary to the record. In its resolution dated 21 5 2010 the Commission has recorded the following “Though Shri S. Khan had mentioned in his letter dated 10 12 2009 that he was resubmitting the identity card with regard to locomotor disability he in fact had submitted the documentary proof of his locomotor disability for the first time to the office of the APSC through his above letter dated 10 12 2009. However after receiving the identity card the matter was placed before the full Commission to decide whether the Commission can act on an essential document not submitted earlier as per terms of advertisement but submitted after completion of entire process of selection The Commission while examining the matter in details observed that Shri S. Khan was treated as general candidate all along in the examination process and was not treated as physically handicapped with locomotor disability. Prior to taking decision on Shri S Khan it was also looked into by the Commission whether any other candidate’s any essential document relating right benefits etc. not furnished with the application or at the time of interview but submitted after interview was accepted or not Patna High Court CWJC No.248118(3) dt.23 08 2021 From the record it was found that prior to Shri S. Khan’s case one Smt Anima Baishya had submitted an application before Chairperson on 26 2 2009 claiming herself to be an SC candidate for the first time. But her claim for treating herself as an SC candidate was not entertained on the grounds that she applied as a general candidate and the caste certificate in support of her claim as SC candidate was furnished long after completion of examination process.” 32. In the face of such conclusions we have little hesitation in concluding that the conclusion recorded by the High Court is contrary to the facts and materials on the record. It is settled law that there can be no relaxation in the terms and conditions contained in the advertisement unless the power of relaxation is duly reserved in the relevant rules and or in the advertisement Even if there is a power of relaxation in the rules the same would still have to be specifically indicated in the advertisement. In the present case no such rule has been brought to our notice. In such circumstances the High Court could not have issued the impugned direction to consider the claim of Respondent 1 on the basis of identity card submitted after the selection process was over with the publication of the select list 17. It is admitted position that at the time of Patna High Court CWJC No.248118(3) dt.23 08 2021 submission of application form for the post of A.N.M. the petitioner applied as E.B.C. M.B.C. candidate and on the date of the interview on 30.11.2016 as per the advertisement the petitioner failed to produce non creamy layer certificate in consonance with the terms of the advertisement for a candidate claiming to be an E.B.C. M.B.C. category therefore the respondent authorities rightly did not treat the petitioner to be E.B.C. candidate and decided to treat him in general category Since the petitioner did not secure qualifying marks for the general category she was not appointed. It is also admitted position that on the date of the interview the petitioner changed her caste category and submitted a caste certificate dated 11.11.2016 of Schedule Tribe since “LOHARA” caste had been declared as Schedule Tribe and according to the petitioner when she demanded the certificate of non creamy layer the authorities issued her certificate of Schedule Tribe as per the Govt. letter dated 08 08 2016. In other words there is clear mismatch between declaration made by the petitioner originally in the application form vis a vis the certificate she produced at the time 18. From perusal of the advertisement it is evident that last date of submission of online application form for Patna High Court CWJC No.248118(3) dt.23 08 2021 appointment was fixed on 18.03.2016 and admittedly the petitioner claimed reservation in the application form under E.B.C. M.B.C. category. It is also admitted position that the Government letter was issued much after the last date of submission of the application form for appointment on 08.08.2016. There is no plea in the writ application that the petitioner had taken any step to obtain non creamy layer certificate at the time of submission of the application form or just thereafter. This shows the callous attitude of the petitioner and the petitioner was not diligent enough to obtain the requisite non creamy layer certificate at the time of submission of the application form or just thereafter. The law is well settled that any change in status or caste will take effect prospectively and cannot relate back to a date specially when the notification does not indicate so. The Schedule Tribe certificate dated 11 11 2016 produced by the petitioner at the time of interview would amount to mismatch between declaration made by the petitioner in the online application form and the change of category which the petitioner claimed at the time of interview which is not permissible as per the terms and conditions of the 19. In view of the discussions held hereinabove and in Patna High Court CWJC No.248118(3) dt.23 08 2021 the backdrop of the facts of this case the arguments advanced by the parties and in view of the law laid down by the Hon’ble Supreme Court and this Court referred hereinabove in my considered opinion the petitioner cannot be permitted to change her caste category which she had declared at the time of submission of online application form and admittedly the petitioner did not produce non creamy layer certificate on the date of interview and tried to change her caste category accordingly in my view the petitioner is not permitted to claim benefit of reservation in view of clear provision made in the advertisement and the respondent authorities cannot be faulted for considering the case of the petitioner under unreserved general category in which the petitioner did not secure the cut off marks of 65.72. Accordingly I do not find any merit in the writ application and the same is dismissed 20. There shall be no order as to cost. Anil Kumar Sinha J Praful A.F.R

The intention of the parties must match the clauses specified in a certain deed: Supreme Court of India

When the dispute revolves around the classification of a document, it is necessary to consider the attendant circumstances the imponderable variables which that brings in its train make it impossible to compare one case with another. Each must be decided on its own facts. This was held by Hon’ble Justice Hemant Gupta in the case of Bhimrao Ramchandra Khalate (Deceased) Through Lrs. Vs. Nana Dinkar Yadav (Tanpura) & Anr. [CIVIL APPEAL NO. 10197 OF 2010] on the 13th of August before the Hon’ble Supreme Court at New Delhi. The brief facts of the case are, the plaintiff was the owner of 20 gunthas of agricultural land1 situated in Village Khunte. The plaintiff was in need of money so he borrowed Rs.3,000/- from defendant No. 1 on 22.2.1969 by executing a document titled “conditional sale deed” as a security for the loan amount. The plaintiff requested defendant No. 1 to reconvey the suit land by accepting the loan amount of Rs.3,000/- but defendant No. 1 refused to do so. On 25.2.1989, defendant No. 1 transferred the suit land in favour of his brother (defendant No. 2). The plaintiff filed a suit against the defendants on 5.4.1989 under the Transfer of Property Act, 1882 for redemption of mortgaged property and possession. The claim of the plaintiff is that the transaction dated 22.2.1969 was in the nature of mortgage even though it was titled as the conditional sale. The plaintiff is in appeal before this Court aggrieved against the judgment passed by the High Court on 11.8.2006 in second appeal whereby the order passed by the First Appellate Court on 14.1.2000 was affirmed, while dismissing the suit for redemption of the mortgage property. To analyze whether the particular document was of conditional sale or mortgage, the court relied on the judgement in Shri Bhaskar Waman Joshi v. Shri Narayan Rambilas Agarwal AIR 1960 SC 301, wherein, it was held that, “The question whether by the incorporation of such a condition a transaction ostensibly of sale may be regarded as a mortgage is one of intention of the parties to be gathered from the language of the deed interpreted in the light of the surrounding circumstances. The circumstance that the condition is incorporated in the sale deed must undoubtedly be taken into account, but the value to be attached thereto must vary with the degree of formality attending upon the transaction. The definition of a mortgage by conditional sale postulates the creation by the transfer of a relation of mortgagor and mortgagee, the price being charged on the property conveyed. In a sale coupled with an agreement to reconvey there is no relation of debtor and creditor nor is the price charged upon the property conveyed, but the sale is subject to an obligation to retransfer the property within the period specified. What distinguishes the two transactions is the relationship of debtor and creditor and the transfer being a security for the debt. The form in which the deed is clothed is not decisive. The definition of a mortgage by conditional sale itself contemplates an ostensible sale of the property. The question in each case is one of determination of the real character of the transaction to be ascertained from the provisions of the deed viewed in the light of surrounding circumstances. If the words are plain and unambiguous, they must in the light of the evidence of surrounding circumstances be given their true legal effect. It there is ambiguity in the language employed, the intention may be ascertained from the contents of the deed with such extrinsic evidence as may by law be permitted to be adduced to show in what manner the language of the deed was related to existing facts. Oral evidence of intention is not admissible in interpreting the covenants of the deed but evidence to explain or even to contradict the recitals as distinguished from the terms of the documents may of course be given”.

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 10197 OF 2010 BHIMRAO RAMCHANDRA KHALATE DECEASED) THROUGH LRS NANA DINKAR YADAV& ANR JUDGMENT HEMANT GUPTA J The plaintiff is in appeal before this Court aggrieved against the judgment passed by the High Court on 11.8.2006 in second appeal whereby the order passed by the First Appellate Court on 14.1.2000 was affirmed while dismissing the suit for redemption of the mortgage property. Brief facts leading rise to the present appeal are that the plaintiff was the owner of 20 gunthas of agricultural land1 situated in Village Khunte. The plaintiff was in need of money so he borrowed Rs.3 000 from defendant No. 1 on 22.2.1969 by executing a For short the ‘suit land’ document titled “conditional sale deed” as a security for the loan amount. The plaintiff requested defendant No. 1 to reconvey the suit land by accepting the loan amount of Rs.3 000 but defendant No. 1 refused to do so. On 25.2.1989 defendant No. 1 transferred the suit land in favour of his brotherof the Act was amended in the year 1929 when a proviso was inserted that “provided that no such transaction shall be deemed to be a mortgage unless the condition is embodied in the document which effects or purports to effect the sale”. In Pandit Chunchun Jha v. Sheikh Ebadat Ali & Anr.3 the plaintiff’s suit for redemption was dismissed by the High Court but appeal allowed by this court reading the deed as mortgage. The question examined was whether a given transaction is a mortgage For short the ‘Act’ AIR 1954 SC 345 by conditional sale or a sale outright with a condition of repurchase. It was held that two documents are seldom expressed in identical terms and when it is necessary to consider the attendant circumstances the imponderable variables which that brings in its train make it impossible to compare one case with another. Each must be decided on its own facts. But certain broad principles were stated. The Court found that the document had no clause for retransfer and instead says that if the executants pay the money within two years the property shall come in exclusive possession and occupation with the transferors The document had no clause for retransfer. In these circumstances this Court held as under “12. The next step is to see whether the document is covered by Section 58(c) of the Transfer of Property Act for if it is not then it cannot be a mortgage by conditional sale The first point there is to see whether there is an “ostensible sale”. That means a transaction which takes the outward form of a sale for the essence of a mortgage by conditional sale is that though in substance it is a mortgage it is couched in the form of a sale with certain conditions attached. The executants clearly purported to sell the property in clausebecause they say so therefore if the transaction is not in substance a mortgage it is unquestionably a sale: an actual sale and not merely an ostensible one. But if it is a mortgage then the condition about an “ostensible sale” is fulfilled 13. We next turn to the Conditions. The ones relevant to the present purpose are contained in clauses andmeans that if the money is paid within the two years then the possession will revert to the executants with the result that the title which is already in them will continue to reside there. The necessary consequence of that is that the ostensible sale becomes void. Similarly clausethough clumsily worded can only mean that if the money is not paid then the sale shall become absolute. Those are not the actual words used but in our opinion that is a fair construction of their meaning when the document is read as a whole. If that is what they mean as we hold they do then the matter falls squarely within the ambit of Section 58(c 20. .It is true this can also be read the other way but considering these very drastic provisions as also the threat of a criminal prosecution in sub clausewe think the transferee was out to exact more than his pound of flesh from the unfortunate rustices with whom he was dealing and that he would not have agreed to account for the profits : indeed that is his own case for he says that this was a sale out and out. In these circumstances there would be no need to keep a reasonable margin between the debt and the value of the property as it ordinarily done in the case of a mortgage. Taking everything into consideration we are of opinion that the deed is a mortgage by conditional sale under Section 58 of the Transfer of Property Act..” In a judgment reported as Shri Bhaskar Waman Joshi v. Shri Narayan Rambilas Agarwal4 a Bench of this Court has upheld the right of redemption. The argument raised by the transferor was that the property transferred was intended to be mortgage under a deed of conditional sale. The transferees contended that the deed was absolute sale and that the conveyance was subject to a condition of repurchase. It was inter alia held that a transac tion shall not be deemed to be a mortgage unless the condition re ferred to in the clause is embodied in the document which affects AIR 1960 SC 301 or purports to affect the sale. It was held that the mortgage by conditional sale postulates the creation by the transfer of a rela tion of mortgagor and mortgagee the price being charged on the property conveyed. The Court held as under “7. ….. The question whether by the incorporation of such a condition a transaction ostensibly of sale may be regarded as a mortgage is one of intention of the parties to be gathered from the language of the deed interpreted in the light of the surrounding circumstances. The circumstance that the condition is incorporated in the sale deed must undoubtedly be taken into account but the value to be attached thereto must vary with the degree of formality attending upon the transaction. The definition of a mortgage by conditional sale postulates the creation by the transfer of a relation of mortgagor and mortgagee the price being charged on the property conveyed. In a sale coupled with an agreement to reconvey there is no relation of debtor and creditor nor is the price charged upon the property conveyed but the sale is subject to an obligation to retransfer the property within the period specified. What distinguishes the two transactions is the relationship of debtor and creditor and the transfer being a security for the debt. The form in which the deed is clothed is not decisive The definition of a mortgage by conditional sale itself contemplates an ostensible sale of the property The question in each case is one of determination of the real character of the transaction to be ascertained from the provisions of the deed viewed in the light of surrounding circumstances. If the words are plain and unambiguous they must in the light of the evidence of surrounding circumstances be given their true legal effect It there is ambiguity in the language employed the intention may be ascertained from the contents of the deed with such extrinsic evidence as may by law be permitted to be adduced to show in what manner the language of the deed was related to existing facts. Oral evidence of intention is not admissible in interpreting the covenants of the deed but evidence to explain or even to contradict the recitals as distinguished from the terms of the documents may of course be given. Evidence of contemporaneous conduct is always admissible as a surrounding circumstance but evidence as to subsequent conduct of the parties is inadmissible 13. Counsel for the transferees sought to rely upon the evidence of subsequent conduct of the transferors as indicative of the character of the transaction as a sale but as already observed that evidence is inadmissible.” In another judgment reported as P.L. Bapuswami v. N. Pattay Gounder5 this Court decreed the suit for redemption though the same was dismissed by the High Court. The High Court held that the transaction was an outright sale and not a mortgage by condi tional sale. The alternative plea based on the covenant for re con veyance the High Court considered that there was no proof that the plaintiff had tendered the amount within the period stipulated in the document. In appeal this court held that the distinction be tween the conditional sale and mortgage is the relationship of debtor and creditor and the transfer being a security for the debt The Court held as under “5. …The definition of a mortgage by conditional sale pos tulates the creation by the transfer of a relation of mort gagor and mortgagee the price being charged on the prop erty conveyed. In a sale coupled with an agreement to re convey there is no relation of debtor and creditor nor is the price charged upon the property conveyed but the sale is subject to an obligation to retransfer property within the pe riod specified. The distinction between the two transactions is the relationship of debtor and creditor and the transfer being a security for the debt. The form in which the deed is AIR 1966 SC 902 clothed is not decisive. The question in each case is one of determination of the real character of the transaction to be ascertained from the provisions of the of document viewed in the light of surrounding circumstances. If the language is plain and unambiguous it must in the light of the evidence of surrounding circumstances be given its true legal effect If there is ambiguity in the language employed the inten tion may be ascertained from the contents of the deed with such extrinsic evidence as may by law be permitted to be adduced to show in what manner the language of the deed was related to existing facts…” In view of the Judgments referred to above now we examine the facts of present case. The deed in question is Ex. 68. The docu ment reads as under “I above Executant given in writing that I am executing this conditional sale deed in your favour in front of Sub Reg istrar Phaltan as I am taking Rs.3 000 in cash from you for my household expenses in respect of land which is in my possession owned by me and enjoyed by me absolutely on this date. The description of the land located within limits of town Khunte Division Satara Tq. Phaltan ir rigated by Government Canal. Its boundaries and other particulars are The above land owned and enjoyed by me along with all materials standing on it including trees stones mud etc. is being handed over to you by me for your possession on the condition that you are giving back its possession to me any time within one year from t he date of this sale deed when I repay the above amount to you while re transferring the above land to my name. In case non payment by me of the said amount within the stipulated period this sale deed will be taken as a permanent one and you will enjoy the posses sion of the land as your own. Any future disputes in respect of the said land will be dealt by me if they arise I sign this sale deed today on 22nd February 1969.” A perusal of the aforesaid document would show that The plaintiff has borrowed a sum of Rs.3 000 from the de fendant for his household expenses in respect of the land which was in his possession. The possession of land was handed over to the defendant on the condition that the possession will be given back to him within one year from the date of conditional sale deed The defendant is bound to retransfer the land to the plaintiff when he repays the amount of Rs.3 000 If the amount is not paid within the stipulated period the conditional sale deed may be taken as a permanent one A complete reading of the document would show that a sum of Rs.3 000 was taken as a loan from the defendant for household expenses. The same was to be returned and the defendant was bound to retransfer the land. The condition that if the plaintiff is not able to pay the loan amount within one year the document will be taken as a permanent sale deed is the contentious clause between the parties In view of the judgments mentioned above the intention of the parties has to be seen when the document is executed. It is not in dispute that the condition of retransfer is a part of the same docu mentof the Act As held in Pandit Chunchun Jha a transaction which takes the outward form of a sale but in essence the documents are of a mortgage though it is couched in the form of a sale. This Court held that it is impossible to compare one case with another. Each case must be decided on its own facts and circumstances. The document has to read as a whole and if any word is ambiguous then to find out the intention of the parties when such document Therefore a reading of the document would show that the docu ment was executed for the reason that the plaintiff has borrowed a sum of Rs.3 000 for his household expenses and the defendant is bound to retransfer the land if the amount is paid within one year The advance of loan and return thereof are part of the same docu ment which creates a relationship of debtor and creditor. Thus it would be covered by proviso in Section 58(c) of the Act. Now some of the later judgments of this Court interpreting the proviso in Section 58(c) of the Act need to be considered. This Court in Umabai & Anr. v. Nilkanth Dhondiba Chavan Dead) by LRs & Anr.6 was examining contemporaneous docu ments executed on 30.12.1970 whereby the plaintiff had agreed to sell the property for consideration of Rs.45 000 . A sale deed was executed as well. Another agreement to sale was executed be tween the parties on the same date where the defendants agreed to reconvey the property on receipt of Rs.45 000 . It was thus 2005) 6 SCC 243 held that the benefit of Section 58(c) of the Act would not be appli cable to the plaintiff as the document of reconveying the property was not part of the same document. This Court held as under “21. There exists a distinction between mortgage by con ditional sale and a sale with a condition of repurchase. In a mortgage the debt subsists and a right to redeem re mains with the debtor but a sale with a condition of repur chase is not a lending and borrowing arrangement. There does not exist any debt and no right to redeem is reserved thereby. An agreement to sell confers merely a personal right which can be enforced strictly according to the terms of the deed and at the time agreed upon. Proviso ap pended to Section 58(c) however states that if the condi tion for retransfer is not embodied in the document which effects or purports to effect a sale the transaction will not be regarded as a mortgage. ” In Tulsi & Ors. v. Chandrika Prasad & Ors.7 this Court held that a distinction exists between a mortgage by way of conditional sale and a sale with condition to repurchase. In the former the debt subsists and a right to redeem remains with the debtor but in case of the latter the transaction does not evidence an arrange ment of lending and borrowing thus right to redeem is not re served. The circumstances which weighed with the High Court holding are that the transaction in question was mortgaged by way of sale it reads thus “9. The following circumstances weighed with the learned trial court as well as the High Court in arriving at the finding that the transaction in question was a mortgage by way of a conditional sale 2006) 8 SCC 322 The husband of Appellant 1 was a tenant in respect of the property and he continued to occupy the same in the ii) The appellants bore the costs of stamp duty which is not the normal practice in a case of absolute sale iii) The transaction essentially was a Baibulwafa viz mortgage by conditional sale iv) The land was required to be kept in the existing v) The transferor had an option to repay the entire consideration in one instalment whereupon a deed of reconveyance was to be executed by the transferor in her favour. For the said purpose a specific date was fixed viz 30 12 1971 and on obtaining such amount the transferee was to restore possession of the land to the plaintiff and only in the event of default on her part to repay the same was the sale to become absolute and perfect vi) In the margin of the deed the transferor categorically stated that he had executed a deed of Baibulwafa in respect of two parts of the shop vii) The amount has been received by the transferor in the presence of the husband of the transferee.” In view of the factors mentioned in para 9 the defendants appeal was dismissed and the decree for redemption was main In Vithal Tukaram Kadam & Anr. v. Vamanrao Sawalaram Bhosale & Ors.8 the suit for redemption was decreed by setting aside the judgment of the High Court. It was held as under 2018) 11 SCC 172 “14. The essentials of an agreement to qualify as a mortgage by conditional sale can succinctly be broadly summarised. An ostensible sale with transfer of possession and ownership but containing a clause for reconveyance in accordance with Section 58(c) of the Act will clothe the agreement as a mortgage by conditional sale. The execution of a separate agree ment for reconveyance either contemporaneously or subsequently shall militate against the agreement being mortgage by conditional sale. There must exist a debtor and creditor relationship. The valuation of the property and the transaction value along with the duration of time for reconveyance are important con siderations to decide the nature of the agreement There will have to be a cumulative consideration of these factors along with the recitals in the agree ment intention of the parties coupled with other at tendant circumstances considered in a holistic man In another judgment reported as Ganpati Babji Alamwar Dead) by LRs Ramlu & Ors. v. Digambarrao Venkatrao Bhadke & Ors.9 the decree in a suit for redemption was main tained by the High Court. The Court held as under “10. Whether an agreement is a mortgage by conditional sale or sale with an option for repurchase is a vexed question to be considered in the facts of each case. The essentials of an agreement to qualify as a mortgage by conditional sale can succinctly be summarised. An ostensible sale with trans fer of possession and ownership but containing a clause for reconveyance in accordance with Section 58(c) of the Act will clothe the agreement as a mortgage by conditional sale The execution of a separate agreement for reconveyance ei ther contemporaneously or subsequently shall militate against the agreement being mortgage by conditional sale There must exist a debtor and creditor relationship. The valu 2019) 8 SCC 651 ation of the property and the transaction value along with the duration of time for reconveyance are important consid erations to decide the nature of the agreement. There will have to be a cumulative consideration of these factors along with the recitals in the agreement intention of the parties coupled with other attendant circumstances considered in a holistic manner. The language used in the agreement may not always be conclusive.” 17. On the other hand learned counsel for the defendants relied upon Vanchalabai Raghunath Ithapeby LR v. Shankarrao Baburao Bhilareby LRs & Ors.10. It was a case where the suit for redemption filed by plaintiff appellant was maintained However the judgment of this Court reported in Umabai and Tulsi were not brought to the notice of this Court. In the absence of consideration of such judgments we find that the judgment of this Court in Vanchalabai Raghunath Ithape will not lay down a In Dharmaji Shankar Shinde & Ors. v. Rajaram Shripad Joshi Dead) through LRs & Ors.11 the defendants appeal was al lowed by this court and the suit for redemption was dismissed. It was inter alia held that if the sale and agreement to repurchase are embodied in the separate documents then the transaction can not be a “mortgage by conditional sale” irrespective of whether the documents are contemporaneously executed but the con verse does not hold good. This Court held as under 2013) 7 SCC 173 2019) 8 SCC 401 “22. . Considering the contemporaneous conduct of the parties it is clear that Shankar Shinde and thereafter the appellants were dealing with the suit property as if they were the owners of the land. The clause in Ext. P 73 that if the amount is not paid within a period of five years the transaction will become a permanent sale deed and there after the transferee will have the absolute right over the property are consistent with the express intention of parties making the transaction a conditional sale with option to re A perusal of the above judgment shows that the plaintiff has bor rowed a sum of Rs.7000 for the marriage of his daughter eight days prior to execution of the document. While executing docu ment on 28.7.1967 the plaintiff borrowed an additional amount and a document titled as “mortgage by conditional sale” was exe cuted for a consideration of Rs.2500 but the plaintiff received Rs.1800 only. This Court held that the intention of the parties in putting an end to the debtor creditor relationship with respect to the sum of Rs.700 is clear from the recitals of the document. It was held that clauses in the document are consistent with the in tention of the parties making the transaction of a conditional sale with an option to repurchase. The Court held that there are no recitals in the document to establish creditor debtor relationship nor does it contain the right of foreclosure payment of interest etc. which are essential requirements in a mortgage deed. The Court held that undetermined mortgage amount for which the in terest in the immovable property was created as security indi cates that the parties have never intended to create a mortgage The said judgment does not help the argument raised by the de fendants as the document in the present case clearly stipulates the amount of Rs.3000 was borrowed by the plaintiff and on re turn of such amount a mandate to defendant No. 1 to execute re conveyance of suit land was asked for which was refused by de fendant no.1. Another judgment referred to by the learned counsel for the defen dants is Sopanthrough his LR v. Syed Nabi12 but that was a case where the registered sale deed was executed on 10.12.1968 and on the same date a separate agreement was exe cuted whereby the plaintiff has agreed to repay the amount and secure reconveyance of the property. Since the two separate doc uments were executed this Court has rightly found that it is not a document of mortgage but of conditional sale which is not covered by the proviso to Section 58(c) of the Act. Learned counsel for the defendants has also referred to the fact that the suit for redemption was filed after twenty years of the document being executed and in the meantime defendants have made improvements over the land. Thus the plaintiff would not be entitled to seek redemption. Section 63 of the Act contem 2019) 7 SCC 635 plates that any accession by the mortgagee during the continu ance of the mortgage the mortgagor shall on redemption be enti tled to such accession in the absence of a contract to the contrary Under Section 63(a) of the Act the liability of mortgagor to pay for improvement will arise if the mortgagee had to incur the costs to preserve the property from destruction or deterioration or was necessary to prevent the security from becoming insufficient or being made in compliance with the lawful order of any public ser vant or public authority. None of the eventualities arose in the present case compelling the mortgagor to pay for the improve ments if any carried out by the mortgagee. A mortgagee spends such money as is necessary for the preservation of the mortgaged property for destruction forfeiture or sale for supporting the mort gagor’s title to the property for making his own title thereto good against the mortgagor and when the mortgaged property is a re newable lease hold for the renewal of the lease such expenditure incurred by the mortgagee can be added to the cost of improve ments in the principal amount due. However in the absence of any positive evidence of any improvement and the cost incurred the defendants are not entitled to recover anything more than the mortgage amount. Since the possession was given to the mort gagee he has enjoyed usufruct from the mortgage property which compensates not only of the user of the land but also improve ments made by him. The improvements were to enjoy the usufruct of the property mortgaged. The argument that plaintiff has filed suit for redemption after 20 years of execution of the document is not tenable as the suit for redemption can be filed within 30 years from the date fixed for re demption. The period of 30 years would commence on 22.2.1969 and the suit was filed in the year 1989 which is within the period In view thereof we find the order of the First Appellate Court ac cepting the appeal of the defendants and dismissing the suit for redemption is not sustainable in law so as the order passed by the High Court. Consequently the judgment and decree passed by the First Appellate Court and that of the High Court are set aside and the suit is decreed. The plaintiff may pay or deposit the mort gage amount within three months of the receipt of copy of the or der. The appeal is allowed with no order as to costs NEW DELHI AUGUST 13 2021

High Court ought not to re-examine findings of fact, unless they are shown to be manifestly unreasonable or perverse: High Court of Delhi

Where a special statute governs the relationship between the parties and provides for an appeal, the High Court ought not to re-examine findings of fact in its supervisory jurisdiction, unless they are shown to be manifestly unreasonable or perverse. The power under Article 227 is exercisable where it is found by the High Court that due to a certain grave error an injustice has been caused to a party and the same was upheld by High Court of Delhi through the learned bench led by Justice Prateek Jalan in the case of PARAMJEET SINGH vs. MAHAVIR PRASAD [CM(M) 191/2022] on 28.02.2022. The facts of the case are that the landlord filed the eviction proceedings against the tenant u/s 14(1)(a) and 14(1)(b) of the Delhi Rent Control Act, 1958. The case of the landlord was that the suit property was owned by his deceased father who had inducted the tenant into the property at a monthly rent. The landlord claimed that the suit property was bequeathed to him by way of a will. Contending that the tenant was in arrears of rent which had not been tendered despite service of demand notices, and that the tenant had inducted a sub-tenant into the premises, therefore, the landlord sought eviction of the tenant. The plaintiff’s counsel submitted that the tenant was in arrears of rent which had not been tendered despite service of demand notices, and that the tenant had inducted a sub-tenant into the premises, therefore, eviction of the tenant is being sought. The respondent’s counsel submitted that the rent was being collected on behalf of a trust of Dharamshala Shree Chander Dev Bhagwan and that the Trust was in fact the owner of the suit property. It was further submitted that the Rent Controller dismissed the eviction petition on the finding that the landlord had failed to prove that he is the owner or the landlord of the suit property, and that the tenant therefore had no liability to pay rent to him. The Court while applying the narrow grounds of Article 227 to the present case, found no reason to interfere in the present case. The Court observed that, “where a special statute governs the relationship between the landlord and tenant and provides for an appeal, the High Court ought not to re-examine findings of fact in its supervisory jurisdiction, unless they are shown to be manifestly unreasonable or perverse. The power under Article 227 is exercisable where it is found by the High Court that due to a certain grave error an injustice has been caused to a party. High standard is required to justify interference under Article 227 of the Constitution i.e. material fact which would suggest that these findings of fact are perverse, in the sense that no reasonable person could have read the evidence in this manner.”

117IN THE HIGH COURT OF DELHI AT NEW DELHI Decided on: 28th February 2022 CM(M) 191 2022 PARAMJEET SINGH Petitioner Through: Mr. Durgesh Gupta Advocate. Respondents MAHAVIR PRASAD Through: None. HON’BLE MR. JUSTICE PRATEEK JALAN PRATEEK JALAN J.CM APPL. 10371 2022 & 10373 2022Exemption allowed subject to all just exceptions. The applications stand disposed of. CM(M) 191 2022 & CM APPL. 10372 2022(stay) By way of this petition under Article 227 of the Constitution the petitioner tenant assails an order of the learned Principal District and Sessions Judge and Rent Control Tribunal Tis Hazari Courts Delhiin RCT No. 55 2018 Mahavir Prasad vs. Shri Paramjeet Singh]. By the impugned order the Tribunal has partly allowed the appeal of the respondent landlord against an order of the Rent Controller dated 28.02.2018 by which the eviction petition filed by the landlord was dismissed by the Rent Controller. CM(M) 191 2022 The landlord filed the eviction proceedings against the tenant in respect of a shop bearing No. A 11 Property No. 773 Chabi Ganj Kashmere Gate Delhi 110006under Sections 14(1)(a) and 14(1)(b) of the Delhi Rent Control Act 1958 hereinafter “the Act”]. The case of the landlord was that the suit property was owned by his deceased father Late Shri Deep Chand who had inducted the tenant into the property at a monthly rent of ₹125 . The landlord claimed that the suit property was bequeathed to him by way of a will of Late Shri Deep Chand dated 16.10.1995. Contending that the tenant was in arrears of rent since 01.04.2002 which had not been tendered despite service of demand notices and that the tenant had inducted a sub tenant into the premises the landlord sought eviction of the tenant. The tenant admitted his status as a tenant but denied the relationship of landlord and tenant between the parties. It was alleged that Late Shri Deep Chand was collecting the rent on behalf of a trust of Dharamshala Shree Chander Dev Bhagwan and that the Trust was in fact the owner of the suit property. After recording evidence the Rent Controller dismissed the eviction petition on the finding that the landlord had failed to prove that he is the owner or the landlord of the suit property and that the tenant therefore had no liability to pay rent to him. It was also held that the alleged sub tenancy was not proved on evidence. In appeal by the landlord the Tribunal has affirmed the view taken by the Rent Controller so far as the question of sub tenancy referable to Section 14(1)(b) of the Act] is concerned. However on the question of non payment of rent CM(M) 191 2022 the Tribunal has reversed the view of the Rent Controller and passed an order of eviction. Having heard Mr. Durgesh Gupta learned counsel for the petitioner tenant I do not find any ground for interference with the view taken by the Tribunal in exercise of jurisdiction under Article 227 of the Constitution. The Tribunal has on the question of the relationship of landlord and tenant between the parties come to the following findings: “12. The fulcrum of this appeal hinges upon the relationship of tenancy between the parties in the light of admitted position that the respondent had been inducted as a tenant by Shri. Deep Chand the now deceased father of the appellant. As regards relationship of tenancy between the parties it would be significant to notice that in his pleadings as well as evidence the respondent admitted repeatedly and in no uncertain terms that he had been inducted as tenant into the tenanted premises by Shri Deep Chand. In the pleadings before the Rent Controller and even before the competent authority under the Slum Areas Act the respondent tenant did not specifically deny the relationship of father and son between Shri Deep Chand and the appellant. Even in reply Ex. PW 1 7 to the notice the respondent did not deny that the appellant Shri Mahavir Prasad is son of Shri Deep Chand rather the respondent in the said reply stated that "other legal heirs" of Shri Deep Chand also are interested persons. The respondent also did not deny in the written statement that Shri Deep Chand had expired. That being so the appellant was not required to adduce any evidence as regards his relationship with Shri Deep Chand and as regards death of Shri Deep Chand. 14. The stand taken by the respondent in his written statement is that Shri Deep Chand was not owner of the tenanted premises and that the tenanted premises are CM(M) 191 2022 owned by a trust on whose behalf Shri Deep Chand was only a rent collector. It is in this background that the pleadings and evidence have to be examined. 15. In the present case the document Ex. PW 1 3 is the most crucial piece of evidence which apparently skipped the attention of the learned Rent Controller. Ex. PW1 3 is a rent note on which the respondent during cross examination admitted his signatures. The said rent note Ex. PW1 3 specifically stipulates that the respondent had taken the tenanted premises on rent from Shri Deep Chand with effect from 01.05.1977. The said rent note Ex. PW1 3 does not even whisper that the tenanted premises are owned by any trust as alleged in the written statement. On the contrary Ex. PW1 3 describes Shri Deep Chand as owner of the tenanted premises using the expression "uparokt malik" 191 2022 Chand bequeathed the entire premises number 773 Chabiganj Kashmere Gate Delhiin favour of his son the appellant. 19. Going a step deeper even if the Will Ex. PW1 1 is ignored the fact remains that the appellant is admittedly one of the legal representatives of Shri Deep Chand. On death of Shri Deep Chand his widow and children became co owner s of the tenanted premises. The question as to whether the eviction petition brought by the appellant without taking along the remaining legal representatives of Shri Deep Chand would be maintainable is examined as follows.”1 Relying upon various judgments of the Supreme Court the Tribunal has taken a view that even in the absence of the will through which the landlord claimed sole ownership of the suit property the eviction petition would be maintainable at his instance as a co owner. The scope of interference with the view taken by the Tribunal under the Act is extremely limited. The judgment of the Supreme Court in Koyilerian Janaki and Others vs. Rent ControllerCannanore and Others2 which was in the context of the Kerala Buildings Act 1965 provides clear guidance on this point. It lays down that where a special statute governs the relationship between the landlord and tenant and provides for an appeal the High Court ought not to re examine findings of fact in its supervisory jurisdiction unless they are shown to be manifestly unreasonable or perverse. The relevant observations of the Court are “4. Further we are in agreement with the argument of learned counsel for the appellant that it was not as follows: 1 Emphasis supplied. 29 SCC 406 CM(M) 191 2022 appropriate for the High Court to have interfered with the order passed by the District Judge in exercise of its power under Article 227 of the Constitution. The proceedings in the present case arose under a special Act governing the landlord and tenant relationship and disputes. The Act does not provide any second appeal or revision to the High Court. The purpose behind for not providing such remedy is to give finality to the order passed under the Act. The power under Article 227 is exercisable where it is found by the High Court that due to a certain grave error an injustice has been caused to a party. For this reason also the judgment of the High Court deserves to be set aside.”3 Relying upon the judgment in Koyilerian Janaki and three judgments of this Court in Jasbir Singh vs. Manjit Kaur4 Nawal Kishore vs. Mohd. Yakub5 and Dev Raj vs. Saroj Singhalthrough Her Lrs. And Others6 I have very recently taken the same view7. 10. Applying these narrow grounds to the present case I do not find reason to interfere in the present case. The Tribunal has considered the evidence on record to come to a conclusion that Late Shri Deep Chand father of the respondent herein) was the landlord in respect of the suit property. In reaching this conclusion the Tribunal has inter alia noticed the tenant’s own case that he was inducted into the property by Late Shri Deep Chand. The Tribunal has also referred to the reply given by the tenant to the legal notice and to a rent note to conclude 3 Emphasis supplied. 4 2013 SCC OnLine Del 46471041 2011 decided on 20.11.2013] 5 2017 SCC OnLine Del 127781256 2012 decided on 03.10.2017] 6 2021 SCC OnLine Del 54921132 2021 decided on 22.12.2021] 7 Johrina Begum vs. Sukhbir Singh144 2022 decided on 14.02.2022] CM(M) 191 2022 that the tenant had failed to establish that suit property is owned by the Trust. As noticed above the Tribunal is the final arbiter of facts. Mr. Gupta has not been able to point me to any material which would suggest that these findings of fact are perverse in the sense that no reasonable person could have read the evidence in this manner. That being the high standard required to justify interference under Article 227 of the Constitution the petitioner’s challenge must fail. 11. The view taken by the Tribunal is not challenged on any other In view of the above there is no merit in the present petition ground. which stands dismissed. FEBUARY 28 2022 ‘pv’ PRATEEK JALAN J. CM(M) 191 2022

The term ‘bail’ means a kind of security or bond which is given to release a person from prison:High court of Allahabad

Bail is the conditional release of a defendant with the promise to appear in court when required. Bail is a set of pre-trial restrictions that are imposed on a suspect to ensure that they will not hamper the judicial process. The bail is filed by the advocate on behalf of the accused is held by the High court of Allahabad through the learned bench led by Single Bench: Hon’ble Krishan Pahal, J. In the matter Gaurav @ Gaura Versus  State of U.P [ – CRIMINAL MISC. BAIL APPLICATION No. – 13747 of 2021] dealt with an issue mentioned above.  In compliance with the order dated 9.11.2021, S.S.P., Muzaffar Nagar, namely, Mr Abhishek Yadav has filed an affidavit wherein it has been stated that the order dated 4.10.2021 was not communicated by the office of Government Advocate as well as the deponent was not aware of the said order and as such he could not file his affidavit. Learned counsel for the applicant has submitted that the applicant has been falsely implicated in the present case. The applicant has been arrested by the police and from his possession, 102.66-gram Alprazolam is said to have been recovered. He has further submitted that nothing has been recovered from the possession of the applicant and the alleged recovery is false and fabricated. It is further submitted that there is no chemical analysis report to prove that the recovered contraband is actually the Alprazolam powder or something else. The court perused the facts and arguments presented in the case  The object of the grant of bail to an accused of an offence is neither punitive nor preventive in nature. The true object behind granting bail is to secure the appearance of the accused during trial. It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge informing his independent opinion based on the testimony of the witnesses. Click here to read the judgment Judgment reviewed by Sakshi Mishra

Court No. 77 Case : CRIMINAL MISC. BAIL APPLICATION No. 137421 Applicant : Gaurav @ Gaura Opposite Party : State of U.P Counsel for Applicant : Zia Naz Zaidi Atul Kumar Dharmendra Pratap Singh Praveen Singh Counsel for Opposite Party : G.A Hon ble Krishan Pahal J Heard Mr. Brijesh Sahai learned Senior Advocate assisted by Mr Zia Naz Zaidi learned counsel for the applicant Mr. Ajeet Kumar Singh learned Additional Advocate General assisted by Mr. Vibhav Anand Singh learned A.G.A. for the State and perused the record This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant seeking enlargement on bail in Case Crime No. 05820 under Section 8 21 N.D.P.S. Act 1985 at Police Station Khatauli District Muzaffar Nagar Rejoinder affidavit filed today is taken on record. In compliance of the order dated 9.11.2021 S.S.P. Muzaffar Nagar namely Mr. Abhishek Yadav has filed an affidavit wherein it has been stated that the order dated 4.10.2021 was not communicated by the office of Government Advocate as well as the deponent was not aware of the said order and as such he could not file his affidavit. In the compliance affidavit it has been stated that there are 49 criminal cases registered against the applicant. As per DCRB report out of 49 cases 48 cases have been registered at P.S. Khatauli District Muzaffar Nagar and one case i.e. Case Crime No. 4211 under Section 60 Excise Act r w Section 272 273 I.P.C. was registered at P.S Mansoorpur District Muzaffar Nagar. It is further stated in paragraph No 7 of the said affidavit that due to typographical error Police Station of Case Crime No. 4211 has been typed as Mansoorpur in place of Khatauli. The report provided by DCRB has been annexed as Annexure No. 2 to the compliance affidavit. The explanation referred in the affidavit is found plausible and accepted. The personal presence of S.S.P. Muzaffar Nagar is hereby Now coming to the merits of the case. Learned counsel for the applicant has submitted that the applicant has been falsely implicated in the present case. The applicant has been arrested by the police and from his possession 102.66 gram Alprazolam is said to have been recovered. He has further submitted that nothing has been recovered from the possession of the applicant and the alleged recovery is false and fabricated. It is further submitted that there is no chemical analysis report to prove that the recovered contraband is actually the Alprazolam powder or something else. Learned counsel for the applicant submits that at the time of arrest mandatory provisions of Section 50 of NDPS Act have not been complied with. Lastly it is also been submitted by learned counsel for the applicant that he has been implicated in several criminal cases by the police for the reason that the father of the applicant has made several complaints against the police officials of District Muzaffar Nagar. It has been vehemently argued by Mr. Brijesh Sahay learned Senior Counsel for the applicant that the animus of the police towards the applicant is evident from the fact that the recovery of 102.66 gram Alprazolam has been deliberately shown from the possession of the applicant to make it fall in the category of commercial quantity. The recovery of more than 100 gram Alprazolam falls in the category of commercial quantity. The recovery is a sham It has been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required. The applicant is languishing in jail since 29.12.2020. He undertakes that he will not misuse the liberty if granted therefore he may be released on bail. 11. On the other hand learned Additional Advocate General opposed the application on the ground that applicant has criminal history of 48 cases and most of them have been lodged before filing of the said complaint against the police officials. He further submits that criminal antecedent of the accused is to be seen while granting the bail. Their relevance cannot be totally ignored. Per contra learned counsel for the applicant submits that applicant has already been acquitted in five criminal cases whereas the prosecution in 17 has already came to an end. It is also submitted that the applicant has already been granted bail by this Court as well as by the lower Court in 21 criminal cases after considering the merits of the case. It is further submitted by learned counsel for the applicant that criminal history attributed to the accused applicant is due to the application dated 26.4.2002 which has been filed by the father of the applicant against the police officials. It has also been admitted in the compliance report filed by the S.S.P. that the then Senior Superintendent of Police Muzaffar Nagar directed the Circle Officer Khatauli to inquire into the aforesaid matter and submit a report. It has also been fairly admitted by the learned counsel Additional Advocate General that an investigation into the allegations levelled by father of applicant was also taken up by the C.B.C.I.D. against the police officials. In support of his contention learned counsel for the applicant also placed reliance on the case of Pawan Kumar Pandey Versus State of U.P reported in JIC 680 where the accused was allegedly involved in the commission of murder punishable u s 302 I.P.C. it has been held by the Court that if the accused is otherwise entitled to bail the same should not be refused simply on the ground of criminal antecedent. It is also argued that the accused in the said case was wanted in 56 criminal cases. Further more the said criminal history of the applicant has already been explained in the supplementary affidavit filed The matter of foisting of frivolous cases against the applicant has already been dealt with by this Court in order dated 9.11.2021. The same is not being reiterated to avoid repetition The object of grant of bail to an accused of an offence is neither punitive nor preventive in nature. The true object behind granting of bail is to secure appearance of accused during trial. The courts owe more than verbal respect to the principle that punishment begins after convictions and that every man is deemed to be innocent until duly tried and found guilty. From the earlier times it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. Apart from the question of prevention being the object of a refusal of bail one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as mark of disapproval of former conduct whether the accused has been convicted for it or not. It has been opined by the Apex Court in AIR 2012 SC 830 Sanjay Chandra vs. Central Bureau of Investigation that if bail to an accused under Section 437 or 439 Cr.P.C. is refused by the Court and he is detained in jail for an indefinite period of time and his trial is likely to take considerable time the same would be violative of his fundamental right as to Personal liberty guaranteed by Article 21 of the Constitution of India. It has also been opined that seriousness of the offence should not be treated as the only ground for refusal of bail. At the stage of consideration of bail it cannot be decided whether offer given to the applicant and his consent obtained was voluntary. These are the questions of fact which can be determined only during trial and not at the present stage. In case of prima facie non compliance of mandatory provision of Section 50 the accused is entitled to be released on bail within the meaning of Section 37 of N.D.P.S. Act. Interpreting the provisions of bail contained u s 437 & 439 Cr.P.C. the Supreme Court has laid down following considerations for grant or refusal of bail to an accused in a non bailable offence: i) Prima facie satisfaction of the court in support of the ii) Nature of accusation ii) Evidence in support of accusations iv) Gravity of the offence v) Punishment provided for the offence vi) Danger of the accused absconding or fleeing if released vii) Character criminal history of the accused. viii) Behavior of the accused ix) Means position and standing of the accused in the Society x) Likelihood of the offence being repeated xi) Reasonable apprehension of the witnesses being tampered xii) Danger of course of justice being thwarted by grant of xiii) Balance between the rights of the accused and the larger interest of the Society State xiv) Any other factor relevant and peculiar to the accused. xv) While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail but if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence then bail will be refused. See: Mayakala Dharamaraja vs. State of Telangana 2 SCC 743 and Lachman Dass vs. Resham Chand Kaler AIR 2018 SC 599 19. While disposing of bail applications u s 437 439 Cr.P.C. courts should assign reasons while allowing or refusing an application for bail But detailed reasons touching the merit of the matter should not be given which may prejudice the accused. What is necessary is that the order should not suffer from non application of mind. At this stage a detailed examination of evidence and elaborate documentation of the merit of the case is not required to be undertaken. Though the court can make some reference to materials but it cannot make a detailed and in depth analysis of the materials and record findings on their acceptability or otherwise which is essentially a matter of trial. 7 SCC 452 and Kanwar Singh Meena vs. State of Rajasthan AIR 2013 SC 296 20. According to Halsbury’s Laws of England “ the effect of granting bail is not to set the defendantfree but to release him from custody of law and to entrust him to the custody of his sureties who are bound to produce him to appear at his trial at a specified time and place.” 21. According to Law Commission’s 268th report ‘Bail’ essentially means the judicial interim release of a person suspected of a crime held in custody on entering into a recognizance with or without sureties that the suspect would appear to answer the charges at a later date and includes grant of bail to a person accused of an offence by any competent authority under law In Kamlapati Trivedi vs. State of West Bengal 1979 AIR777 the Supreme Court of India observed that bail is devised as a technique for effecting a synthesis of two basic concepts of human values namely the right of the accused to enjoy his personal freedom and the public interest subject to which the release is conditioned on the surety to produce the accused person in Court to stand trial The Apex Court in the Case of Union of India vs. Shiv Shankar Keshari 7 SCC 798 has held that the court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty. 24. Considering the facts of the case and keeping in mind the ratio of the Apex Court s judgment in the case of Union of India vs. Shiv Shankar Kesharilarger mandate of Article 21 of the constitution of India the nature of accusations the nature of evidence in support thereof the severity of punishment which conviction will entail the character of the accused applicant circumstances which are peculiar to the accused reasonable possibility of securing the presence of the accused at the trial reasonable apprehension of the witnesses being tampered with the larger interest of the public State and other circumstances but without expressing any opinion on the merits I am of the view that it is a fit case for grant of bail. 25. Keeping in view the nature of the offence evidence on record regarding complicity of the accused larger mandate of the Article 21 of the Constitution of India and the dictum of Apex Court in the case of Dataram Singh Vs. State of U.P. and another reported in3 SCC 22 and without expressing any opinion on the merits of the case the Court is of the view that the applicant has made out a case for bail. The bail application is allowed Let the applicant Gaurav @ Gaura who is involved in aforementioned case crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditionsopening of the case recording of statement under Section 313 Cr.P.C. If in the opinion of the Trial Court absence of the applicant is deliberate or without sufficient cause then it shall be open for the Trial Court to treat such default as abuse of liberty of bail and proceed against him in accordance with law. In case of breach of any of the above conditions it shall be a ground for cancellation of bail. It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses. Order Date : 5.1.2022

Death penalty commuted on the grounds of possibility of reformation : Supreme Court

The issue whether death sentence of man belonging to scheduled tribe who was convicted of rape and murder of a minor girl child can be commuted was decided upon by a bench of Supreme Court consisting of Justices L Nageswara Rao, Justice BR Gavai and Justice BV Nagarathna in the matters between Bhagwani v. State of Madhya Pradesh Criminal Appeal No.-101-102 of 2022 decided on 18.1.2022. The facts of the case are the appellant was found guilty of an offence under section 363, 366A, 364, 346, 376D, 376A, 302, 201 of IPC 1860 and section 5(g)(m) read with Section 6 of  POCSO Act, 2012 firstly,the trial court and later,by the Madhya Pradesh High Court.The appellant appealed before this court against these conviction. The appellants contended that none of the discoveries and recoveries implicate the Appellant. The courts made a mistake based on the Appellant’s disclosure statement. It further stated that none of the articles recovered from the alleged crime scene had any connection with the Appellant. The Appellant’s injuries cannot be considered a case as he was a worker doing physical work, but the “injury marks” in the arrest report were found to be blank. The statement of the accused, last seen with the victim, was not properly considered by the following Courts. He referred to the evidence of Bhagat Singh (PW-5) and argued that the Appellant had been apprehended from his home and that only Satish had escaped. It was contended that the explanations made by the Appellant in its examination pursuant to Section 313 were not appreciated. A statement under Section 313 cannot be considered concrete evidence. According to the Appellant’s knowledgeable attorney, the chain of circumstances is incomplete and not consistent with a single hypothesis proving the Appellant’s guilt. As regards the death penalty, the Appellant’s trained lawyer argued that his right to a fair trial, guaranteed under Article 21 of the Indian Constitution, had been violated due to the lack of effective legal assistance in the present case. Appointed by the Court to cross-examine witnesses, the amicus curiae was not given sufficient time and the Appellant was not given the opportunity to present relevant materials before adjudicating. The extenuating circumstances were not properly addressed. The undisputed lien was not considered by the following Courts. The Appellant’s trained counsel further argued that the Appellant could not be convicted under section 376A of IPC. After the change in 2013, gang rape was excluded from the scope of sections 376 (1) and (2) . The Prosecution did not present any evidence to reveal any common intent between the Appellant and Satish to commit an offense under Section 376D. The penalty for gang rape is life imprisonment. Therefore, the application of the death penalty cannot be sustained. The respondents argued that there is no break in the chain of events or conditions. The Appellant visited the shop and the PW-5 witnessed the deceased go to Satish’s home, this was confirmed by Satish in his testimony under Section 313 that he admitted that the deceased had come to his home to keep his black shawl. The deceased later disappeared, and his body was found the next morning in the morning. Medical evidence revealed that the deceased had been brutally raped and murdered. Scientific evidence clearly showed that Satish committed the crime of rape. Satish and the Appellant were seen together on the evening of 14.04.2017 and also visited PW-9 in the morning the next day. They were messy and asked for PW-9 for the liquor. Satish then disappeared and was captured that afternoon. According to the statement, the Appellant’s clothes were confiscated from the barn in the Appellant’s home.The Forensic Sciences Laboratory (FSL) also relied on the DNA report by Sagar. Special reference was made to the Appellant’s Item D, a full trousers with bloodstains near the zippered area. Ms. Chaudhary argued that multiple peaks were observed when examining the Appellant’s Item D, which indicated that there was more than one DNA feature in Item D. The Appellant did not examine his mother and Deepa, whom he slept with on the night of 14.04.2017. Referring to the answers given to the questions put to the Appellant under section 313. The counsel relied on the law established by this Court and argued that only denial would provide additional link if the circumstances were proven. He argued that the statement within the scope of section 313 by the state counsel could not be used as evidence against the accused to the extent that it supported the prosecution, although it could not be a basis for a conviction. A helpless teenage girl is battered to death after being raped, and the Appellant deserves no indulgence. The State’s argument is that there was no error committed by the Judicial Court in imposing the death penalty on the Appellant for his serious crimes. The apex court held that there was no wrong in conviction of the accused but noted that while the trial court and the high court took into account the gravity of the crime, they did not take into account the extenuating circumstances, including the convict’s socio-economic background and the possibility of correction and rehabilitation. The appellant convict will not qualify for remission for 30 years. In the present case, the Court noted that extenuating circumstances had not been taken into account when sentencing the accused to death by the trial court. The court decided that the plaintiff, who was a member of the scheduled tribe community, was 25 years old at the time of the crime, was making a living by manual labor and had no criminal history. There were also no negative reports against him about his behavior in prison. Therefore, the Court commuted the death sentence to life imprisonment. However, considering that the crimes of rape and murder were committed in a barbaric and brutal manner, the Appellant is sentenced to a 30-year life sentence for an unfortunate 11-year-old girl, during which time her pardon is not accepted. Judgement reviewed by Bhaswati Goldar Bhagwani_v_State_of_Madhya_Pradesh

IN THE CRIMINAL APPELLATE JURISDICTION Criminal Appeal Nos. 101 1022 SLPNos.4821 48218 .... Appellant The State of Madhya Pradesh …. Respondent JUDGMENT L. NAGESWARA RAO J Leave granted. These Appeals are preferred against the judgment of the High Court of Madhya Pradesh by which the conviction and sentence of the appellant by the Trial Court under Sections 363 366A 364 346 376D 376A 302 201 of Indian Penal Code 1860and Section 5(g)(m) read with Section 6 of The Protection of Children from Sexual Offences Act 2012were upheld. At 9.00 p.m. on 14.04.2017 Brijlal Yadav along with his wife Kalawatitwo sons and his daughter went to the house of Anil Maravi to attend a function of Chowk Barhonin the hair. There was a dry bark of drumstick tree also in the hair Both eyes were closed. Froth from the nose was observed small internal injuries were visible and on the left side and right side of the chin there were small marks of injury. Small injury marks were found in front and left side to the neck Blood was present in the genitalia. On the sole of the right leg there was blood. Blood was also present above the ankle of the right leg. There were scratch marks on the left side of the chest and another scratch type of mark below the chest Blood spots were found on both thighs up to genitalia. Blood was found on the back of the thigh and near anus. Small injury marks were present on the entire back and waist 2 | P a g e Directions were given to the investigating officer to send the body for post mortem and to collect preserve and pack the visible objects found at the place of occurrence. Further direction was given to seize the clothes worn by the prosecutrix and get them examined. Post mortem was conducted at 4.00 p.m. on 15.04.2017 by PW 6 Dr. Sajjan Kumar Uikey who found the following injuries: Rigor mortis present in both lower limb and partially passed in both upper limb. Eye closed mouth closed fiest half open cornea congested pupil dilated face cyanosed lip cyanosed finger and· hand cyanosed. Blood mixed froth present over the both nostril. Blood mixed saliva both angle on mouth up to lower margin of mandible. Four contusion mark over left side of neck medial aspect of neck. Three contusion mark on left side of neck middle third size of contusion between 1 ½ cmx 1 cm. 1 cm x 1 cm. contusion over both cheek 1 cm x 1 cm. infraorbital left side. 11 2 cm contusion on the left side of xiphisternum. One intrascapular contusion 1 Y cm two 1 2 cm x v cm contusion over the left buttock. Clotted blood found over the pink colour aspect dry clotted blood present over the perinea! area lower middle third of both thigh all around anal area. Blood present in the vaginal opening three 3 cm anterior to posterior and full thickness of muscle and skin Dry clotted blood present over the anal opening and inner aspect of anus. Opening is dilated 2 fingers easily admitted All injuries are antemortem in nature 3 | P a g e The cause of the death was given as asphyxia neurogenic shock due to neck pressing severe injuries and bleeding in vagina and anal opening by committing rape forcefully. On suspicion the Appellant and Satish s o Jehar Singh Dhoomketi were arrested on 16.04.2017. The statement of Satish was recorded pursuant to which the blanket and shawl of the deceased and clothes worn by him were seized Similarly the clothes worn by the Appellant which were concealed in his cowshed were seized pursuant to the statement made by him. On completion of investigation the final report was filed on 27.06.2017. Charges were framed against Satish and the Appellant under Sections 363 366 A 364 346 376D 376A or in the alternative under Sections 302 201 IPC and Section 5(g)(m) read with Section 6 of the POCSO Act. 12 witnesses were examined by the prosecution The Sessions Judge Dindori convicted the Appellant and Satish for the offences charged and sentenced them to death The High Court answered the reference against the Appellant and Satish by upholding the conviction and sentence imposed by the Trial Court. Aggrieved thereby the Appellant and Satish approached this Court. During the pendency of the Appeals Satish died and therefore his Appeal has abated. 4 | P a g e As there is no direct evidence regarding the kidnapping rape and murder of a girl aged 11 years the case hinges on circumstantial evidence. Keeping in mind the well settled principles settled by this Court in Sharad Birdhichand Sarda v. State of Maharashtra1 the Trial Court scrutinized the evidence on record. Reference was made to the testimony of PW 1 who stated that the Appellant and Satish were present at the Chowk Barhon function at Anil Maravi’s house and made themselves scarce after the recovery of the dead body. Reference was also made to the oral testimony of PW 4 Chain Singh who runs a small hotel in the village. He deposed that the victim girl had come to his shop at 9.00 pm on 14.04.2017 to purchase Kurkure and she had a blanket and shawl with her. Fifteen minutes thereafter the Appellant also visited the shop for purchasing namkeen. The Trial Court considered the disclosure statements made by the accused and the recoveries of shawl and blanket of the victim girl and the clothes of Satish and the Appellant. The seizure of a blanket and button from the place of incident was proved to be from the shirt of Satish. The evidence of Dr. Vijay Paigwar PW 11) who examined the injuries of Satish and the Appellant was considered by the trial Court. The Appellant had a 14 SCC 116 5 | P a g e scratch mark of size 1 inch on the upper portion of the left shoulder scratch mark of size 0.5 inch on left side below shoulder scratch mark of size 0.5 inch on the lower portion of the back of the body scratch marks of 2 inches on the right arm and abrasion mark of 1 cm sized on the cheek and 4 inches sized abrasion on the ribs. The answers given by the Appellant and Satish during their examination under Section 313 of the Code of Criminal Procedure 1973 and requested for alcohol on the next day morning was taken note of by the trial Court. The version of the Appellant that he was taken home by his mother on the night of 14.04.2017 and as she was abusing him the Appellant went to the house of his neighbour Deepa was not accepted by the Trial Court as neither his mother nor Deepa were examined Having been convinced that the circumstances were consistent with the hypothesis of the Appellant the Trial Court convicted them for the offences charged. After hearing the Appellant and Satish the Trial Court sentenced them to death as they were found guilty of committing heinous crimes of rape and murder. While considering the reference the High 6 | P a g e Court re appreciated the evidence on record and upheld the conviction and sentence imposed by the Trial Court. 5. Mr. Shri Singh learned counsel appearing for the Appellant submitted that none of the discoveries and the recoveries implicate the Appellant. He argued that the disclosure statement of Satish was recorded at 1340 hrs. on 16.04.2017 and the disclosure statement of the Appellant was recorded one and half hours later. Both the statements were recorded by PW 10. He submitted that the Courts below have committed an error in relying upon the disclosure statement of the Appellant. He further stated that none of the articles that have been recovered from the alleged place of offence have any connection with the Appellant. According to him the packet of Kurkure which was purchased was not identified in Court by PW 4 from whose shop it was purchased. The black button seized from the spot of offence is from the shirt of Satish with which the Appellant had no connection Commenting on the seizure of the shirt red sando baniyan and jeans pant Mr. Shri Singh submitted that serological testing was not done to prove that the blood found on the clothes was human blood. He argued that the injuries of the Appellant cannot be taken as a circumstance as he is a labourer doing physical work. He pointed out that the column 7 | P a g e of “injury marks” in the arrest memo was found to be blank The learned counsel for the Appellant submitted that the evidence of the accused last seen together with the victim has not been properly appreciated by the Courts below. He referred to the evidence of Bhagat Singh and submitted that the Appellant was apprehended from his house and it was only Satish who was absconding. He argued that the statements made by the Appellant in his examination under Section 313 CrPC were not appreciated properly. The learned counsel for the Appellant pointed out that the admissions made by him in the statement under Section 313 CrPC cannot be treated as substantive evidence. According to learned counsel for the Appellant the chain of circumstances is incomplete and is not consistent with only one hypothesis proving the guilt of the Appellant. On the sentence of death the learned counsel for the Appellant submitted that there is violation of the right to fair trial which is guaranteed under Article 21 of the Constitution of India as effective legal assistance was not afforded in the instant case. Sufficient time was not given to the amicus curiae appointed by the Court to cross examine witnesses and no opportunity was given to the Appellant to submit relevant material before sentencing. Mitigating circumstances have not been taken 8 | P a g e into consideration. The probability of reformation of the Appellant and the sentence of life imprisonment being unquestionably foreclosed were not taken into account by the Courts below. The learned counsel for the Appellant further argued that the Appellant could not have been convicted under Section 376A IPC. After the amendment in 2013 gang rape was taken out of the ambit of Section 376andIPC The prosecution did not produce any evidence to establish any common intention between the Appellant and Satish to commit an offence under Section 376D IPC. Sentence for commission of gang rape is imprisonment for life. Therefore the imposition of death sentence is unsustainable. 6. Ms. Ankita Chaudhary learned Deputy Advocate General for the State of Madhya Pradesh defended the judgments of the Trial Court and the High Court by submitting that there is no break in the chain of events circumstances. According to her the prosecution proved that there was a function of Chowk Barhon at the house of Anil Maravi the victim was seen at the shop of Chain Singh and after a short while the Appellant visited the shop and PW 5 witnessed the deceased going to the house of Satish which was corroborated by Satish in his statement under Section 313 CrPC in which he admitted that the deceased came to his house to keep her 9 | P a g e black shawl. The deceased disappeared thereafter and her body was found the next day morning. The medical evidence disclosed brutal rape and murder of the deceased. Scientific evidence clearly showed that Satish committed the offence of rape. Satish and the Appellant were seen together on the evening of 14.04.2017 and they had also visited PW 9 on the next day morning. They were disheveled and requested PW 9 for liquor. Satish went missing thereafter and was apprehended in the afternoon. Pursuant to the disclosure statement the clothes of the Appellant were seized from the cowshed in the house of the Appellant. The learned counsel for the State referred to the injuries on the body of the Appellant which were not explained by him. She also relied upon the DNA report prepared by Forensic Science Laboratory FSL) Sagar. Specific reference was made to Article D which was a full pant belonging to the Appellant on which there was a blood stain near the zip area. Ms. Chaudhary argued that multiple peaks were observed while examining Article D which denotes that there is more than one DNA trait on Article D The learned counsel for the State further submitted that the Appellant could not prove his plea of alibi. The Appellant failed to examine his mother and Deepa in whose house he had slept on the night of 14.04.2017. Referring to the answers 10 | P a g e given to questions posed to the Appellant during his examination under Section 313 CrPC the learned counsel for the State relied upon the law laid down by this Court and submitted that mere denial would provide additional link if the circumstances are proved. It was argued by the learned counsel for the State that though the statement under Section 313 CrPC cannot be made the basis for conviction it can be used as evidence against the accused to the extent it supports the case of the prosecution. A helpless girl at a tender age was mauled to death after being raped and the Appellant deserves no lenience. The contention of the State is that there is no error committed by the Trial Court in imposing the sentence of death on the Appellant for the heinous offences committed by him. This Court in Dalbir Kaur v. State of Punjab2 summarized the principles governing interference in a criminal appeal by special leave as follows: “(1) that this Court would not interfere with the concurrent finding of fact based on pure appreciation of evidence even if it were to take a different view on the 2) that the Court will not normally enter into a reappraisement or review of the evidence unless the assessment of the High Court is vitiated by an error of law 24 SCC 158 11 | P a g e or procedure or is based on error of record misreading of evidence or is inconsistent with the evidence for instance where the ocular evidence is totally inconsistent with the medical evidence and so on 3) that the Court would not enter into credibility of the evidence with a view to substitute its own opinion for that of the High Court 4) that the Court would interfere where the High Court has arrived at a finding of fact in disregard of a judicial process principles of natural justice or a fair hearing or has acted in violation of a mandatory provision of law or procedure resulting in serious prejudice or injustice to the 5) this Court might also interfere where on the proved facts wrong inferences of law have been drawn or where the conclusions of the High Court are manifestly perverse and based on no evidence.” This Court exhorted the counsel for the parties to confine their arguments within the four corners of the above principles to save time energy and expertise. The undisputed facts are that PW 2 along with his family members attended the Chowk Barhon ceremony at the house of Anil Maravi on the evening of 14.04.2017. His 11 years old daughter went missing and was found dead on the next day morning. The Appellant and Satish were arrested on the next day and on the basis of the statements made by them recoveries of their clothes were made. The medical evidence 12 | P a g e shows that she was raped and killed. A green shirt of check pattern whose two front black buttons were broken which is torn near the shoulder and has blood spot was seized from the flowerpot on the roof of the cowshed of the Appellant. A red colour sando baniyan with black stripe which is torn near shoulder with dark blood spot was also seized along with one jeans pant of sky blue colour with lining of 28 no. and HARW was mentioned on the right side back. There was a dark blood spot in front of the sky blue jeans pant. The report of the State Forensic Science Laboratory Civil Lines Sagar showed that all the alleles observed in the male DNA profile of Satish were found to be the same as the DNA profile observed from the prosecutrix’s vaginal and rectal slides. Same female autosomal STR DNA profile was detected on the source of the deceased prosecutrix dhoti and underwear of Satish. Insofar as Article D which is a full pant of the Appellant is concerned according to DNA report multiple peaks were observed. The Appellant and Satish were present in the function at the house of Anil Maravi as deposed by PWs 1 3 and 5. PW 4 deposed that he runs a small hotel in the village and the deceased visited his shop to purchase Kurkure at 9.00 p.m 15 minutes thereafter the Appellant visited the shop to purchase namkeen. Jaipal stated that the Appellant 13 | P a g e and Satish visited his house on 15.04.2017. Their eyes were red hair was scattered and they were scared. They informed him that they have committed a big scandal. At that time Munni Bai the mother of the Appellant came and Satish and the Appellant went away. Half an hour later there was an uproar in the village when the body of the deceased was found. 10. During the course of examination of Satish under Section 313 CrPC he admitted that he was present at the house of Anil Maravi on 14.04.2017 and that he visited PW 9 on the morning of 15.04.2017. The Appellant also admitted his presence at Anil Maravi’s house on 14.04.2017 and at the house of PW 9 on 15.04.2017 in the morning. He further stated in his examination under Section 313 CrPC that his eyes were red hair was scattered and he and Satish demanded liquor from PW 9. It is relevant to note that the Appellant also stated that he had gone to Sudgaon along with Satish for work at 9.00 a.m. on 14.04.2017. While returning he had liquor along with Satish. He visited Anil Maravi’s house along with Satish at 7.00 p.m. They were asked to leave as they were in a drunken condition. The Appellant thereafter went to the shop of Chain Singh from where his mother took him home. He slept in the house of his neighbour Deepa. 14 | P a g e 11. The Appellant was examined by Dr. Vijay Pegwar0.5 inch scratch mark on the lower left shoulder iii) 0.5 inch scratch mark on the lower portion on the back of the body iv) 2 inches scratch marks on the right arm v) Abrasion mark of 1 cm on cheek and 4 inches sized abrasion injury on the right lower lateral rib. Scratch marks that were found on the body of Satish were also examined by Dr. Vijay Pegwar. 12. Clothes worn by the Appellant were seized from a flowerpot on the roof of the cowshed belonging to him pursuant to the disclosure statement. FSL report pertaining to Article B which is a full pant of Appellant on which there was a blood stain near the zip showed multiple peaks. The Appellant and Satish had alcohol and were together at the house of Anil Maravi. As they were creating nuisance they were chased away. The next day morning they went to PW 9 and told him that a big blunder took place. DNA profiling of the articles Q R and S which are the vaginal slide rectal slide and dried blood on the hair of the deceased showed Y STR Blood sample of Satish matched with the articles found on Q R and S. The Appellant miserably failed to prove an alibi Importantly there is lack of any explanation for the scratch 15 | P a g e injuries found on the body of the Appellant. We are in agreement with the concurrent findings that the Appellant is guilty of committing the offences as charged and we find no fault with the conviction of the appellant It is travesty of justice as the Appellant was not given a fair opportunity to defend himself. This is a classic case indicating the disturbing tendency of Trial Courts adjudicating criminal cases involving rape and murder in haste. It is trite law that an accused is entitled for a fair trial which is guaranteed under Article 21 of the Constitution of India. In respect of the order of conviction and sentence being passed on the same day the object and purpose of Section 2356 SCC 498 4 Rajendra Pralhadrao Wasnik v. State of Maharashtra 12 SCC 460 16 | P a g e 04.07.2017 when the matter was adjourned to 25.07.2017 for framing of charges. On 25.07.2017 Mr. M.K. Kannaujiya Advocate filed his appearance memo. On the same date the Trial Court recorded that arguments were heard on the charges. Charges were framed and the schedule for trial was given. On 02.08.2017 9 witnesses were scheduled to be examined and on 03.08.2017 the remaining witnesses would be examined. On 02.08.2017 Mr. Kannaujiya Advocate represented to the Court that he was not willing to defend the accused. Mr. Satyendra Yadav Advocate was appointed to represent the accused. On the same day PWs 1 2 and 3 were examined and on the next day PWs 4 and 5 were also examined. Final arguments were heard on 26.10.2017 and the judgment was dictated on 03.11.2017. On the same day the Trial Court passed an order sentencing the Appellant and Satish to death penalty. 15. After considering the judgements of this Court in Bachan Singh v. State of Punjab5 Machhi Singh v. State of Punjab6 this Court in Mohd. Mannan @ Abdul Mannan v. State of Bihar7 observed as follows: 52 SCC 684 63 SCC 470 716 SCC 584 17 | P a g e “The proposition of law which emerges from the judgments referred to above is that death sentence cannot be imposed except in the rarest of rare cases for which special reasons have to be recorded as mandated in Section 354(3) of the Criminal Procedure Code. In deciding whether a case falls within the category of the rarest of rare the brutality and or the gruesome and or heinous nature of the crime is not the sole criterion. It is not just the crime which the Court is to take into consideration but also the criminal the state of his mind his socio economic background etc. Awarding death sentence is an exception and life imprisonment is In Mofil Khan and Another v. The State of Jharkhand8 this Court observed as follows: “8. One of the mitigating circumstances is the probability of the accused being reformed and rehabilitated. The State is under a duty to procure evidence to establish that there is no possibility of reformation and rehabilitation of the accused. Death sentence ought not to be imposed save in the rarest of the rare cases when the alternative option of a lesser punishment is unquestionably foreclosedNo.6415 in Crl. A. 17909 18 | P a g e criminal along with other circumstances2 SCC 684 106 SCC 498 1112 SCC 460 11 | P a g e this Court dealt with the review of a judgment of this Court confirming death sentence and observed as under: 45. The law laid down by various decisions of this Court clearly and unequivocally mandates that the probability that a convict can be reformed and rehabilitated in society must be seriously and earnestly considered by the Courts before awarding the death sentence. This is one of the mandates of the “special reasons” requirement of Section 354(3 CrPC and ought not to be taken lightly since it involves snuffing out the life of a person. To effectuate this mandate it is the obligation on the prosecution to prove to the Court through evidence that the probability is that the convict cannot be reformed or rehabilitated. This can be achieved by bringing on record inter alia material about his conduct in jail his conduct outside jail if he has been on bail for some time medical evidence about his mental make up contact with his family and so on Similarly the convict can produce evidence on these issues as well.” A perusal of the judgments of the Trial Court and the High Court would disclose that the gravity of the crime was taken into consideration while imposing death sentence. The mitigating circumstances and the probability of reformation 19 | P a g e and rehabilitation of the accused have not been considered. It is relevant to refer to the following observations of this Court in Rajendra Pralhadrao Wasnik v. State of Maharashtra9 “47. Consideration of the reformation rehabilitation and reintegration of the convict into society cannot be Until Bachan Singh2 SCC 684 : 1980 SCC Cri) 580] the emphasis given by the Courts was primarily on the nature of the crime its brutality and severity. Bachan Singh2 SCC 684 : 1980 SCC580] placed the sentencing process into perspective and introduced the necessity of considering the reformation or rehabilitation of the convict. Despite the view expressed by the Constitution Bench there have been several instances some of which have been pointed out in Bariyar6 SCC 498 :2 SCC1150] and in Sangeet v. State of Haryana2 SCC 452 :2 SCC611 where there is a tendency to give primacy to the crime and consider the criminal in a somewhat secondary manner. As observed in Sangeet2 SCC 452 :2 SCC611] “In the sentencing process both the crime and the criminal are equally important.” Therefore we should not forget that the criminal however ruthless he might be is nevertheless a human being and is entitled to a life of dignity notwithstanding his crime. Therefore it is for the prosecution and the Courts to determine whether such a 912 SCC 460 20 | P a g e person notwithstanding his crime can be reformed and rehabilitated. To obtain and analyse this information is certainly not an easy task but must nevertheless be undertaken. The process of rehabilitation is also not a simple one since it involves social reintegration of the convict into society. Of course notwithstanding any information made available and its analysis by experts coupled with the evidence on record there could be instances where the social reintegration of the convict may not be possible. If that should happen the option of a long duration of imprisonment is permissible.” 18. The Appellant was aged 25 years on the date of commission of the offence and belongs to a Scheduled Tribes community eking his livelihood by doing manual labour. No evidence has been placed by the prosecution on record to show that there is no probability of rehabilitation and reformation of the Appellant and the question of an alternative option to death sentence is foreclosed. The Appellant had no criminal antecedents before the commission of crime for which he has been convicted. There is nothing adverse that has been reported against his conduct in jail Therefore the death sentence requires to be commuted to life imprisonment. However taking into account the barbaric and savage manner in which the offences of rape and murder were committed by the Appellant on a hapless 11 year old girl the Appellant is sentenced to life imprisonment for a 21 | P a g e period of 30 years during which he shall not be granted remission. 19. The Appeals are partly allowed. The conviction of the Appellant under Sections 363 366A 364 346 376D 376A 302 201 of Indian Penal Code 1860and Section 5(g m) read with Section 6 of The Protection of Children from Sexual Offences Act 2012 is upheld and the sentence is converted from death to that of imprisonment for life for a period of 30 years without remission. [L. NAGESWARA RAO New Delhi January 18 2022 22 | P a g e