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There must be existence of a proximate and live-link between the affect of cruelty based on dowry demand and the concerned death: Telangana High Court

Prosecution has failed to prove the guilt of the appellant beyond all reasonable doubt and he is entitled to the benefit of doubt. This was said in the case of Boddupally Venkanna vs The State Of Telangana [CRIMINAL APPEAL No.36 of 2020] by Justice G. Sri Devi in Telangana High Court.  The facts of the case date back to 30.12.2019 when the appellant along with two others, were charged for the offences punishable under Sections 498 A, 302, 304-B of I.P.C. and Sections 3 and 4 of the Dowry Prohibition Act, 1961. The trial judge while acquitting the other two accused, convicted and sentenced the appellant under all the above sections.  Assailing the judgment of the Trial Court, the appellant moved the High Court. The appellant contended that the words used in Section 304-B I.P.C. are that ‘soon before her death’ the deceased was subjected to cruelty or harassment by her husband or any relative of her husband. In the present case, the deceased suffered a breathing problem on the alleged date of the incident and died while shifting her to the hospital. Therefore, he contended that the appellant is not liable to be convicted under Section 304-B I.P.C. In respect of the other charge for dowry harassment, they contended that there is no clinching evidence that would establish that there was any physical or mental harassment by the appellant for dowry. On the contrary, the respondent contended that the evidence on record would establish the case against the appellant. He also points out that according to Section 113-B of I.P.C. if a woman dies within seven years of her marriage, a presumption under Section 113-B of I.P.C. has to be drawn and if the events as spoken to by the prosecution witnesses are taken into consideration, it clearly satisfies the ingredients of Section 304-B I.P.C. The Court after analyzing the facts of the case and the settled position of law on the subject opined that “The expression ‘soon before’ is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. To indicate that the expression ‘soon before’ would normally be implied that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be the existence of a proximate and live-link between the affect of cruelty based on dowry demand and the concerned death. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence”.

HONOURABLE JUSTICE G.SRI DEVI CRIMINAL APPEAL No.320 Accused No.1 in Sessions Case No.178 of 2016 on the file of the Judge Family Court cum VI Additional District and Sessions Judge Nalgonda is the appellant herein. He along with two others were charged for the offences punishable under Sections 498 A 302 304 B of I.P.C. and Sections 3 and 4 of the Dowry Prohibition Act 1961. By its judgment dated 30.12.2019 the learned trial Judge while acquitting A 2 and A 3 for the offences punishable under Sections 498 A 304 B of I.P.C. and Sections 3 and 4 of the Dowry Prohibition Act 1961 and A 1 for the offence punishable under Section 302 of I.P.C. convicted A 1 for the offences punishable under Sections 304 B 498 A of I.P.C. and Section 4 of the Dowry Prohibition Act 1961 and sentenced him to suffer rigorous imprisonment for seven years for the offence punishable under Section 304 B of I.P.C. and to suffer rigorous imprisonment for two years and to pay a fine of Rs.2 000 in default to suffer simple imprisonment for two months for the offence punishable under Section 498 A of I.P.C. and also to suffer rigorous imprisonment for one year and to pay a fine of Rs.2 000 in default to suffer simple imprisonment for two months for the offence punishable under section 4 of the Dowry Prohibition Act 1961. All the sentences were directed to be run concurrently. GSD J The case of the prosecution according to the evidence let in during the course of trial is that one Ashwiniwas the elder daughter of P.W.1 Mididoddi Ramachandru and she was given in marriage to A 1 three years prior to the date of offence. At the time of marriage P.W.1 presented cash of Rs.4.00 lakhs 5 ½ tulas of gold ornaments and other household articles. Immediately after the marriage the deceased was taken to the house of the accused and there A 1 and the deceased lived happily for four months and thereafter A 1 to A 3 started harassing the deceased for additional dowry of Rs.2.00 lakhs and one motorcycle. On the demand made by A 1 to A 3 P.W.1 informed to the deceased and A 1 to A 3 that he will arrange the additional dowry of Rs.2.00 lakhs and motorcycle to A 1 at the time of Sankranthi festival. Three days thereafter P.W.1 received a phone call from the younger brother of A 1 that the deceased fell down from the motorcycle and received injuries and she was admitted in Kamineni Hospital Narketpally and immediately P.W.1 P.W.2 and P.W.5 went to Kamineni Hospital Narketpally but they did not find the deceased in the hospital. The R.M.P. doctor of Korlapahad Village informed them that the deceased was shifted to the Government Hospital Nakrekal then they went there and found the dead body of the deceased with injuries on the right shoulder and chest. GSD J On 09.11.2013 P.W.1 lodged a reportwith P.W.26 the then Assistant Sub Inspector of Police. Basing on the said report P.W.26 registered a case in Crime No.157 of 2013 for the offences punishable under Sections 302 and 498 A of I.P.C. and issued Ex.P24 First Information Report. He recorded the statement of PW.1 and sent the F.I.R. to all the concerned. On receipt of the First Information Report P.W.27 the Inspector of Police took up investigation and proceeded to the Primary Health Centre Nakrekal conducted inquest over the dead body of the deceased in the presence of P.Ws.19 to 22. Ex.P18 is the inquest report. During inquest P.W.12 trained constable) photographed and videographed the dead body and P.W.19 seized M.Os.1 to 4 in the presence of P.Ws.16 and 20. Thereafter P.W.27 proceeded to the scene of offence prepared a panchanama of the scene of offence in the presence of P.Ws.17 and 18 and also prepared a rough sketch of the scene of offence which are placed on record as Exs.P26 and P27. He examined and recorded the statements of P.Ws.5 and 6 at the scene of offence. Later the dead body was sent to Community Health Centre Nakrekal where P.W.21 and other team of doctors have conducted postmortem examination over the dead body and issued Ex.P19 the postmortem certificate. After completion of investigation PW.27 filed a charge sheet before the Court of Judicial Magistrate of First Class Nakrekal who in turn committed the case to the Sessions Division. On committal the same came to be numbered as S.C.No.1718. GSD J On appearance of the accused charges under Sections 498 A 302 and 304 B I.P.C. and Sections 3 and 4 of the Dowry Prohibition Act 1961 1961 were framed against A 1 and charges under Sections 498 A and 304 B of I.P.C. and Sections 3 and 4 of the Dowry Prohibition Act 1961 I.P.C came to be framed against A 2 and A 3 read over and explained to the accused to which they pleaded not guilty and claimed to be tried. In order to prove its case the prosecution examined PWs.1 to 29 and got marked Exs.P1 to P31 and M.Os.1 to 4. After closure of prosecution evidence the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of the prosecution witnesses to which they denied. Neither oral nor documentary evidence was adduced on behalf of the accused. On appraisal of the evidence both oral and documentary the learned trial Judge has convicted A 1 for the aforesaid offences and sentenced him as stated supra while acquitting A 2 and A 3 for the charges leveled against them. Aggrieved by the said conviction and sentence the appellant A 1 preferred the present appeal. Learned Counsel for the appellant A 1 mainly contended that the evidence let in by the prosecution does not inspire confidence that the appellant committed the alleged offences. According to her there is absolutely no evidence against the appellant A 1 who is the GSD J husband of the deceased and as such the trial Court ought not to have convicted him for the charges framed against him. According to the learned Counsel the alleged offence does not satisfy the requirements of Section 304 B of I.P.C. According to him the words used in Section 304 B I.P.C. are that soon before her death the deceased was subjected to cruelty or harassment by her husband or any relative of her husband. In the instant case according to the learned Counsel the deceased suffered breathing problem on the alleged date of incident and died while shifting her to the hospital. Therefore he contended that the appellant A 1 is not liable to be convicted under Section 304 B I.P.C. In respect of the other charge for dowry harassment she contended that there is no clinching evidence which would establish that there was any physical or mental harassment by the appellant A 1 for dowry. On the contrary the learned Assistant Public Prosecutor appearing for the respondent complainant contended that the evidence on record would clinchingly establish the case against the appellant and the trial Court was justified in convicting and sentencing the appellant for the charges framed against him. He also points out that according to Section 113 B of I.P.C. if a woman dies within seven years of her marriage a presumption under Section 113 B of I.P.C. has to be drawn and if the events as spoken to by the prosecution witnesses are taken into consideration it clearly GSD J satisfies the ingredients of Section 304 B of I.P.C. and thus justifies the conviction and sentence imposed by the trial Court. In order to prove its case the prosecution examined as many as 29 witnesses. P.Ws.1 to 7 and 10 are the close relatives of the deceased. Admittedly there are no eyewitnesses to the alleged beating of the deceased by the appellant A 1 on the alleged date of incident and the entire case rests on the circumstantial evidence. P.Ws.1 to 7 9 10 11 13 14 and 15 are circumstantial witnesses. P.Ws.9 to 10 and 13 to 15 who were cited as circumstantial witnesses did not support the case of the prosecution. P.W.8 who was cited as an eyewitness to the incident did not support the case of the prosecution and in her deposition she categorically stated that the deceased was suffering from breathing problem on the alleged date of incident and she died while she was being shifted to the hospital. P.W.1 who is the father of the deceased deposed in his evidence that the marriage of the deceased was performed with A 1 on 18.05.2013 and at the time of marriage he presented cash of Rs.4 lakhs 5 ½ tulas of gold ornaments and household articles to A 1 towards dowry. He further stated that after the marriage the deceased joined with A 1 and lived happily for four months and thereafter A 1 to A 3 harassed the deceased for additional dowry of Rs.2 lakhs and one motorcycle. GSD J P.W.2 who is the mother of the deceased deposed that the deceased Aswini is her elder daughter and her marriage was performed with A 1 and at the time of marriage they presented cash of Rs.4 lakhs 5 ½ tulas of gold ornaments and household articles to A 1 towards dowry. She further stated that after the marriage the deceased joined with A 1 at Korlaphad and lived happily for four months and thereafter A 1 to A 3 harassed the deceased for additional dowry of Rs.2 lakhs and one motorcycle. The deceased informed her about the demand of dowry by A 1 to A 3 whenever she visited her house. She also deposed that in the year 2013 during the festival of Deepavali she went to the house of the deceased and at that time A 1 to A 3 demanded Rs.2.00 lakhs and one motorcycle towards additional dowry on that she informed the same to P.W.1 after she returned to her house and thereafter P.W.1 informed the deceased and A 1 to A 3 over phone that he will arrange the additional dowry of Rs.2.00 lakhs and motorcycle at the time of Sankranti festival. Three days thereafter they received a phone call from the younger brother of A 1 that the deceased fell down from the motorcycle and received injuries and asked him to come to Kamineni Hospital Narketpally. Immediately she along with her husband and her mother in law went to Kamineni Hospital Narketpally but they did not find the deceased in the hospital and the R.M.P. doctor informed them that the deceased was shifted to Government Hospital Nakrekal and then they went there and found that the deceased dead and they noticed injuries on the right GSD J shoulder and chest of the deceased. She further deposed that A 1 to A 3 harassed her daughter both physically and mentally and beat her indiscriminately due to which the deceased died. The evidence of P.W.3 who is the paternal uncle of the deceased is also to the same effect. P.W.4 who is the brother of P.W.2 deposed that the marriage of the deceased was performed with A 1 on 18.05.2013 and at the time of marriage P.W.2 presented cash of Rs.4.00 lakhs and 5 ½ tulas gold ornaments to A 1 towards dowry. After the marriage the deceased joined with A 1 at Korlapahad and both of them lived happily for two months. He also deposed that two days prior to the death of the deceased he received a phone call from P.W.1 and informed him that A 1 demanded Rs.2.00 lakhs and one motorcycle towards additional dowry and three days thereafter he received a phone call from P.W.1 that one Saidulu informed P.W.1 that the deceased was fell down from the bike and admitted in Kamineni Hospital Narketpally. Immediately he went to Kamineni Hospital Narketpally and verified the deceased along with P.Ws.1 to 3 and others but they did not find the deceased in the hospital. When they enquired with the said B.Saidulu about the deceased he informed that the deceased was shifted to Government Hospital Nakrekal and immediately himself P.Ws.1 to 3 reached Nakrekal and found the body of the deceased in the hospital with bleeding injuries on the right side shoulder chest and also pressing injury on GSD J the neck of the deceased. He also deposed that A 1 to A 3 were harassed and assaulted the deceased in demand of additional dowry due to which the deceased died. P.W.5 who is the grand mother of the deceased deposed that the marriage of the deceased was performed with A 1 and at the time of marriage P.W.1 presented cash of Rs.4.00 lakhs and 5 ½ tulas of gold ornaments to A 1 towards dowry and they lived happily for two months. She stated that A 1 harassed the deceased in demand of additional dowry of Rs.2.00 lakhs and one motor cycle. She further stated that when the deceased and A 1 came to their house for Dasara festival the deceased informed her about the said demand of dowry and that she told to A 1 that they will arrange Rs.2.00 lakhs and one motorcycle at the time of Sankranti festival. Three days prior to the death of the deceased she received a phone call form P.W.1 that the deceased fell down from the bike of A 1 and asked her to come to Kamineni Hospital Narketpally and then herself P.Ws.1 to 3 and one M.Yadaiah went to Kamineni Hospital Narketpally but they did not find the deceased in the hospital. On that P.W.1 contacted A 1 and A 1 informed to P.W.1 that the deceased was shifted to Government Hospital Nakrekal then they reached there and found the deceased died with bleeding injuries on the nose ear shoulder neck and chest of the deceased. She also deposed that A 1 to A 3 harassed and assaulted the deceased in GSD J demand of additional dowry of Rs.2.00 lakhs and one motorcycle due to which the deceased died. P.W.6 who is the relative of P.W.1 deposed that he is one of the marriage elders of the deceased with A 1 and at the time of marriage P.W.1 presented cash of Rs.4.00 lakhs 5 ½ tulas of gold ornaments to A 1 towards dowry. After the marriage the deceased joined with A 1 at Korlapahad and they lived happily for two months. He further deposed that the deceased informed him when she came to her parents house that A 1 harassed her in demand of additional dowry of Rs.2.00 lakhs and one motorcycle and he told to A 1 that P.Ws.1 and 2 will arrange the same. He came to know through the neighbours that the deceased was died in Nakrekal Government Hospital and immediately himself and some of the villagers went to Nakrekal Hospital and found that the deceased was died with an injury on her neck. P.W.7 who is also one of the relatives of P.Ws.1 and 2 deposed that the marriage of the deceased was performed with A 1 on 18.05.2013 at the time of marriage Rs.4.00 lakhs and 5 ½ tulas of gold were presented to A 1 towards dowry and both the couple lived happily for two months and thereafter some disputes arose between them. P.W.1 used to inform about the family affairs of A 1 and the deceased. A 1 to A 3 harassed the deceased and P.Ws.1 and 2 in demand of additional dowry. On the date of incident when he was in his house P.W.1 informed him over phone that he has GSD J received a phone call from one Saidulu that the deceased fell down from the motorcycle and sustained injuries and she was taken to Kamineni Hospital Narketpally. Immediately he rushed to the house of P.W.1 then he himself along with P.Ws.1 to 6 went to Kamineni Hospital Narketpally but they did not find the deceased. On enquiry they came to know through R.M.P. doctor that the deceased has died on the way to Nakrekal Government Hospital and immediately they went there and found that the deceased was in the mortuary. They noticed injuries on the shoulder neck and chest of the deceased. He further deposed that the deceased died due to the unbearable harassment of A 1 to A 3. Before proceeding further it would be useful to refer to Section 304 B of I.P.C. which deals with dowry death reads as under: 304 B. Dowry Death Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for or in connection with any demand for dowry such death shall be called "dowry death" and such husband or relative shall be deemed to have caused her death. Explanation For the purpose of this sub section dowry shall have same meaning as in Section 2 of the Dowry Prohibition Act 1961Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life." The provision has application when death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relatives of her husband for or in connection with any demand for dowry.” In order to attract application of Section 304 B IPC the essential ingredients are as follows: “(i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance. ii) Such a death should have occurred within seven years of her marriage. iii)She must have been subjected to cruelty or harassment by her husband or any relative of her husband. iv) Such cruelty or harassment should be for or in connection with demand of dowry. v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death. Section 113 B of the Evidence Act is also relevant for the case at hand. Both Section 304 B IPC and Section 113 B of the Evidence Act were inserted as noted earlier by the Dowry Prohibition Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113 B reads as follows: GSD J 113 B: Presumption as to dowry death When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for or in connection with any demand for dowry the Court shall presume that such person had caused the dowry death. Explanation For the purposes of this section dowry death shall have the same meaning as in Section 304 B of the Indian Penal Codeand then her father went and brought R.M.P. doctor and the said RMP doctor gave first aid. P.W.9 also deposed that on the date of incident while he was at his house P.W.8 informed him that the deceased was suffering from breathing problem and immediately he went and brought R.M.P. doctor who gave first aid to the deceased and asked him to take the deceased to a private hospital at Nakrekal. Therefore it appears that the deceased died due to breathing problem while cleaning the store room which is used for keeping paddy. The evidence of these witnesses is supported by the medical evidence. P.W.21 the doctor who conducted post mortem examination on the dead body of the deceased opined that the cause of death was due to asphyxia due to smothering. Thus from a perusal of the evidence of the prosecution witnesses the essential ingredient which is necessary to attract the offence under Section 304 B of I.P.C. i.e. the deceased was subjected to cruelty by the appellant soon before her death in demand of dowry is lacking. As such the appellant is entitled to the benefit of doubt for the offence under Section 304 B of I.P.C. Now the question is whether a case under Section 498 A of I.P.C. has been made out even if accusations under Section 304 B of I.P.C. fail. Section 498 A of I.P.C. reads as follows: GSD J 498 A: Husband or relative of husband of a woman subjecting her to cruelty Whoever being the husband or the relative of the husband of a woman subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation For the purpose of this section cruelty means a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life limb or healthof the woman or b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand." instant case the cross examination P.W.1 categorically admitted that he is earning Rs.200 to Rs.300 per day by doing coolie work. P.W.2 also admitted in her cross examination that she is also doing labour work and earning Rs.100 per day. In view of the categorical admissions made by P.Ws.1 and 2 regarding their status it is quite unbelievable that they have paid such a huge amount of Rs.4.00 lakhs cash and 5 ½ tulas of gold ornaments towards dowry to the accused and also informed the deceased that they will arrange additional dowry of Rs.2.00 lakhs and motorcycle at the time of Sankranti festival to accused. The inquest report of the deceased which was held in the presence of P.Ws.16 and 20 on 09.11.2013 at 1.30 P.M. would shows that at the GSD J time of inquest only Mattelu Ear studs and Nose pin were found on the body of the deceased and not any other gold ornaments particularly “pusthelathadu” and as such the case of prosecution that at the time of marriage P.Ws.1 and 2 have given 5 ½ tulas of gold ornaments is found to be false. Therefore under these circumstances the demand of additional dowry appears to have been invented by the prosecution witnesses after the death of the deceased. If really the accused were harassing the deceased to bring additional dowry certainly this fact would have been stated by P.W.2 before P.W.28 who recorded her statement. Moreover in this case the lodging of the complaintafter due deliberations cannot be ruled out because of the reason that it came to be filed on 09.11.2013 at 12.00 Noon whereas the prosecution witnesses have received the information on the previous day evening itself and they reached the hospital immediately thereafter. P.Ws.1 2 and 3 have categorically deposed that P.W.1 has lodged the report on the very date i.e. on the date of death of the deceased. But in the cross examination P.W.7 has categorically admitted that the complaint was drafted by one Pendyala Bixam at his instructions and on 09.11.2013 he gave the complaint to the Police Kethepally. Whereas a perusal of the complaint it does not bear the signature of the scribe of the complaint. The said Pendyala Bixam was neither cited as witness nor examined by the prosecution for the reasons best known to them. In view of these circumstances it is highly unsafe GSD J to place an implicit reliance on the evidence of P.Ws.1 and 2 with regard to the demand of additional dowry. Basing upon the evidence of P.Ws.1 to 7 the trial Court while acquitting A 2 and A 3 for the offences punishable under Sections 498 A 304 B of I.P.C. and Sections 3 and 4 of the Dowry Prohibition Act 1961 convicted the appellant A 1 only for the offences punishable under Sections 498 A and 304 B of I.P.C. and Section 4 of the Dowry Prohibition Act 1961. As discussed above it is clear that the evidence is not wholly reliable with regard to the demand of dowry soon before the death of the deceased. If that evidence is eschewed from consideration the appellant cannot be convicted for the offences punishable under Sections 498 A and 304 B of I.P.C. and Section 4 of the Dowry Prohibition Act 1961. For the foregoing reasons I am of the considered opinion that the prosecution has failed to prove the guilt of the appellant A1 for the offences punishable under Sections 304 B and 498 A of I.P.C. and Section 4 of the Dowry Prohibition Act 1961 beyond all reasonable doubt and that he is entitled to the benefit of doubt. Accordingly the Criminal Appeal is allowed and the conviction and sentence passed by the learned Judge Family Court cum VI Additional District and Sessions Judge Nalgonda against the appellant A 1 for the offences punishable under Sections 498 A and 304 B of I.P.C. and Section 4 of Dowry Prohibition Act 1961 by GSD J judgment dated 30.12.2019 in S.C.No.1716 are hereby set aside and he is acquitted of the said offences and he shall be set at liberty forthwith if he is not required in any other case. The fine amount if any paid by the appellant A 1 shall be returned to him. ____________________ JUSTICE G.SRI DEVI 22.04.2021 21 GSD J

A person shall be compensated for both the physical & mental injuries: Chhattisgarh High Court

A person is not only to be compensated for the physical injury but also for the loss, which he suffered, as a result of such injury, this remarkable stand was forwarded by Hon’ble Chhattisgarh High Court, in a single judge bench chaired by Hon’ble Justice Mr Shri Sanjay S. Agrawal, in the miscellaneous appeal case of Roshan Goyal v. Rakesh Kumar Malhotra & ors., [M.A(C) No.1378 of 2015]. On the fateful day, i.e. on 27.12.2013, Claimant Roshan Goyal was going by his motorcycle along with his sister-in-law Neeta Khandey from Bilaspur to village Pendari, en route, he was dashed from his back side by the offending vehicle, i.e. motorcycle ‘Hero Honda’ bearing registration No.CG 10 NC-4953 owing to rash and negligent driving by its driver namely Ajay Malhotra, NonApplicant No.2. As a result of the alleged accident, his right leg below the knee got fractured along with other injuries, which he received in other parts of his body. He was admitted into Gayatri Hospital, Bilaspur where he was operated for fracture of Tibia and medial malleollus and an implant was put inside the bone i.e. a rod was fixed for the treatment of fracture. On account of the aforesaid accident, the matter was reported to P.S Chakarbhata in connection with Crime No.10/14 and after the investigation, the charge sheet (Ex.A-2) was submitted before the Judicial Magistrate, Belha against the driver of the alleged offending vehicle under Sections 279, 337 and 338 IPC while specifying not only the number of his vehicle as CG 10 NC-4953, but by seizing the same from him vide seizure memo (Ex.A-3) dated 18.01.2014. This Appeal has been preferred by the Claimant under Section 173 of the Motor Vehicle Act, 1988 (for short ‘the Act of 1988’), questioning the legality and propriety of the award dated 26.09.2015 passed by the 9th Motor Accident Claims Tribunal, Bilaspur (for short ‘the Tribunal’) in Claim Case No.188/2014, whereby the Tribunal has dismissed the Claim Petition filed under Section 166 of the Act of 1988. After examining all the submissions, arguments and evidences forwarded by the councils, the Hon’ble SC observed that, “As far as the defense taken by the insurer that since the vehicle in question was being used in violation of the policy and therefore, no liability could be fastened upon it, is, however, liable to be rejected in absence of any cogent and reliable evidence led by the insurer as the Sujit Kumar Rai (NAW-2), who was examined by the insurer, has, however, failed to establish the same. In such circumstances, the Insurance Company cannot be held to be exonerated from its liability, as alleged. Accordingly, it is held that the vehicle in question was not being used in violation of the policy and the insurer of it is thus held liable to indemnify the insured.” The bench further added that, “the Appeal is allowed in part and the Non-Applicants are held liable jointly and severally to satisfy the aforesaid amount of compensation and it is directed that Non-Applicant No.3-I.C.I.C.I Lombard Insurance Company shall pay the aforesaid amount of compensation of Rs.28, 250/- to the Claimant with 7% interest per annum from the date of filing of the Claim Petition till its realization.”

1NAFRHIGH COURT OF CHHATTISGARH BILASPURM.A(C) No.13715Reserved on 15.12.2020Pronounced on 17.12.2020Roshan Goyal S o Katahur Goyal Aged About 40 Years R o Village Pendari Tahsil Takhatpur District Bilaspur Chhattisgarh .........Claimant AppellantVersus 1.Rakesh Kumar Malhotra S o Shyam Lal Malhotra Aged About 22 YearsR o Village Khajuri Nawagaon Kathakoni Tahsil Takhatpur District Bilaspur Chhattisgarh Registered Owner Of Motor Cycle No. C.G. 10 N C 4963 Chhattisgarh 2.Ajay Malhotra S o Shyam Lal Malhotra Aged About 20 Years R o Village Khajuri Nawagaon Kathakoni Tahsil Takhatpur District Bilaspur Chhattisgarh Driver Of Motor Cycle No. C.G. 10 N C 49633.Branch Manager I.C.I.C.I. Lombard Branch Office Vyapar Vihar Bilaspur Chhattisgarh .........Non Applicants RespondentsFor Appellant:Shri Basant Dewangan Advocate.For Respondents No.1 & 2:None though served.For Respondent No.3: Shri Amrito Das appears along with Shri Tessy Abraham Advocates.Single Bench:Hon ble Shri Sanjay S. Agrawal JC A V Award Judgment 1.This Appeal has been preferred by the Claimant under Section 173of the Motor Vehicle Act 1988questioning thelegality and propriety of the award dated 26.09.2015 passed by the 9thMotor Accident Claims Tribunal Bilaspurin ClaimCase No.188 2014 whereby the Tribunal has dismissed the Claim Petitionfiled under Section 166 of the Act of 1988. The parties to this Appeal shallbe referred hereinafter as per their description in the Court below. 2.Shri Basant Dewangan learned Counsel for the Applicant submits 2that the finding of the Tribunal holding that the Claimant has failed toestablish the specific number of the vehicle in question which caused theaccident is apparently misreading of the avements made in the claimPetition vis a vis the evidence both oral and documentary and is therefore perverse and liable to set aside. While inviting attention to thecharge sheetand the seizure memoit is contended thatthe vehicle in question i.e. motorcycle Hero Honda bearing registrationNo.CG 10 NC 4953 owned by Non Applicant No.1 Rakesh KumarMalhotra was involved however without taking note of these documentaryevidence and that by ignoring the evidence led by the parties in its propermanner the Tribunal has committed a serious illegality in dismissing theclaim.3.On the other hand Shri Das learned Counsel for Non ApplicantNo.3 has supported the award impugned as passed by the Tribunal. 4.I have heard learned Counsel for the parties and perused the entirerecord carefully.5.From perusal of the record it appears that on the fateful day i.e. on27.12.2013 Claimant Roshan Goyal was going by his motorcycle alongwith his sister in law Neeta Khandey from Bilaspur to village Pendari enroute he was dashed from his back side by the offending vehicle i.e.motorcycle Hero Honda bearing registration No.CG 10 NC 4953 owing torash and negligent driving by its driver namely Ajay Malhotra Non Applicant No.2. As a result of the alleged accident his right leg below theknee got fractured along with other injuries which he received in otherparts of his body. He was admitted into Gayatri Hospital Bilaspur wherehe was operated for fracture of Tibia and medial malleollus and an implant 3was put inside the bone i.e. a rod was fixed for the treatment of fracture. 6.On account of the aforesaid accident the matter was reported toP.S Chakarbhata in connection with Crime No.10 14 and after theinvestigation the charge sheetwas submitted before the JudicialMagistrate Belha against the driver of the alleged offending vehicle underSections 279 337 and 338 IPC while specifying not only the number of hisvehicle as CG 10 NC 4953 but by seizing the same from him vide seizurememodated 18.01.2014. It is true that the number of allegedvehicle was differently mentioned in the claim Petition as it was shown as CG 10 NC 4963 in the cause title of the memo of claim Petition while atparagraphs No.2 & 3 as CG 10 HC 4953 . However the documentaryevidence like charge sheetand seizure memowouldreveal the involvement of the vehicle having its registration No. CG 10 NC 4953 . That apart according to the statement of the driver of thealleged offending vehicle Ajay Malhotrait appears that when hewas going by the said vehicle the Applicant at the relevant time wasgoing to village Pendari accompanied by two others while driving hisvehicle in a rash and negligent manner and turned the same abruptlywithout showing the indicators of it and fell down due to loss of control overit. It means that the number of alleged vehicle was not disputed by thiswitness in his evidence nor any complaint has been lodged before thehigher authority as evidenced from paragraph 3 of his statement that itwas wrongly involved in the matter as such. It thus appears that due to thetypographical mistake the number of alleged offending vehicle has beenmentioned slightly different in the claim Petition. However in view of thedocumentary evidence like charge sheetand seizure memo 4(Ex.A 3) vis a vis the statement of the driver of the alleged offendingvehicle as observed herein above it cannot be said that the vehicle inquestion i.e. CG 10 NC 4953 was not involved in the alleged accidentoccurred on 27.12.2013. Consequently the finding of the Tribunal holdingthat the vehicle in question was not involved in the alleged accident isthus liable to be and is hereby set aside. 7.Since the accident was of the year 2013 and the statements of boththe parties have already been recorded therefore I deem it appropriate todetermine the amount of compensation payable to the Claimant RoshanGoyal and would consider further the fact as to whether it was being usedin violation of the policy as alleged by the insurer. 8.According to the Claimant he suffered permanent disability onaccount of the alleged accident which took place on 27.12.2013 but inabsence of any documentary evidence in this regard it cannot be held tobe so. It however appears from a bare perusal of the evidence of Dr. AjayJaiswalthe owner of the Gayatri Hospital where the Applicant wasadmitted on 27.12.2013 immediately after the occurrence of the allegedaccident that during his treatment he was operated for fracture of Tibiaand medial malleollus and an implant was put inside the bone. He opinedfurther that in such type of a case a person can lead his normal life aftersix months of the operation. It appears further from his evidence thatduring his treatment various medical bills i.e. Ex.A 9 to Ex.A 22 exceptEx.A 12 and Ex.A 13 were issued from his hospital. The Claimant istherefore entitled to a sum of Rs.16 723.67 rounded of to Rs.16 750 towards medical expenditure as evidenced by these bills. In addition tothis he is entitled to a further lump sum amount of Rs.10 000 towards 5mental and physical agony suffered by him owing to the alleged accident. 9.That apart a person is not only to be compensated for the physicalinjury but also for the loss which he suffered as a result of such injury inthe light of the observations made by the Supreme Court in the matter ofRaj Kumar Versus Ajay Kumar and Another reported in1 SCC343. As the applicant was in hospital for a period of 8 days and wasunable to work as a daily wager therefore the Applicant must havesuffered loss owing to it and would be entitled to be compensated in thisregard as well apart from suffering for mental and physical agony.According to the claimant he was a daily wager and used to earn Rs.300 per day monthly Rs.9 000 however in absence of its proof it cannot beheld to be so. His income therefore under such circumstances could beassessed as of an unskilled worker as provided under the MinimumWages Act 1948. Since the alleged accident occurred on 27.12.2013 itwould therefore be appropriate to consider his monthly income atRs.5 163 rounded off to Rs.5 200 prevailing at the relevant time as perthe Notification issued by the Prescribed Authority under the said MinimumWages Act 1948. The claimant would thus be entitled to a sum ofRs.1 387 rounded off Rs.1 500 owing to his hospitalization for 8 days.10.Consequently the Claimant is entitled to a total sum of Rs.28 250 with interest at the rate of 7% perannum from the date of filing of the claim Petition till its actual payment. 11.As far as the defence taken by the insurer that since the vehicle inquestion was being used in violation of the policy and therefore no liabilitycould be fastened upon it is however liable to be rejected in absence ofany cogent and reliable evidence led by the insurer as the Sujit Kumar Rai 6(NAW 2) who was examined by the insurer has however failed toestablish the same. In such circumstances the Insurance Companycannot be held to be exonerated from its liability as alleged. Accordingly it is held that the vehicle in question was not being used in violation of thepolicy and the insurer of it is thus held liable to indemnify the insured. 12.In view of the foregoing discussion the Appeal is allowed in partand the Non Applicants are held liable jointly and severally to satisfy theaforesaid amount of compensation and it is directed that Non ApplicantNo.3 I.C.I.C.I Lombard Insurance Company shall pay the aforesaidamount of compensation of Rs.28 250 to the Claimant with 7% interestper annum from the date of filing of the Claim Petition till its realization. Noorder as to costs. Sd JUDGEPriya

The proceedings under section 107 of Cr.P.C are preventive in nature and intended to maintain peace and tranquillity in the area: High Court of Jammu & Kashmir and Ladakh

If any person who commits an act that results into disturbing the peace and public tranquillity of an area, he can be bound down by directing him to execute bond for keeping the peace in the said area, provided such an act is against the public at large. The aforesaid has been established by the High Court of Jammu & Kashmir and Ladakh while adjudicating the case of Masood Ahmed and another v. Executive Magistrate Ist Class, Doda and others [APPCR No. 40/2015 c/w CRMC No. 396/2015 (O & M)] which was decided upon by a single judge bench comprising Justice Rajnesh Oswal on 12th November 2021. The facts of the case are as follows. The petitioners have impugned the complaint as well as proceedings initiated under sections 107 and 117 of Cr.P.C before the respondent No. 1 on the following grounds:- (i) That the respondent No. 1 has not conducted any enquiry in terms of section 117 of Cr.P.C which is mandatory as per procedure. (ii) That the Magistrate has not formed any opinion that there are sufficient grounds for proceeding under section 107 of Cr.P.C. (iii) That the only allegation against the petitioners is that the petitioners often threaten the respondent No. 6 and his family members telephonically and the respondent No. 1 has not relied upon any documentary evidence to demonstrate the same. The petitioner No. 1 appeared in person and has vehemently argued that no proper procedure has been followed by the respondent No. 1 for issuing the process against the petitioners. Mr. Suneel Malhotra, GA submitted that there is no illegality in the order impugned and the petitioners have been rightly summoned by the respondent No. 1. The court perused the facts and arguments presented. It was of the opinion that “A perusal of the order impugned reveals that nothing has been mentioned except the proceedings under section 107/117 of Cr.P.C have been filed against the petitioners. The Magistrate was required to set forth the substance of the information received in the order so as to enable the petitioners to know about the said information but he has not done so. Learned Magistrate has nowhere recorded his opinion that there exists sufficient ground to take action under the provision of 107 of the Code. Otherwise also, there is nothing on record to substantiate the allegations levelled in the complaint as all the witnesses examined by the Police clearly demonstrate that the petitioners have been residing at Jammu and they were threatening the respondent No. 6 on phone. Viewed thus, the present petition is allowed. The order impugned is set aside and the proceedings are also quashed.”

t HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU Reserved on: 08.11.2021 Pronounced on: 12.11.2021 APPCR No. 40 2015 c w CRMC No. 396 2015 Masood Ahmed and another Through : Mr. Masood Ahmed Advocate Petitioner No. 1) Executive Magistrate Ist Class Doda and RespondentThrough : Mr. Suneel Malhotra GA Coram: HON’BLE MR. JUSTICE RAJNESH OSWAL JUDGE The petitioners have the complaint as well as proceedings initiated under sections 107 and 117 of Cr.P.C before the respondent No. 1 on the following grounds: i) That the respondent No. 1 has not conducted any enquiry in terms of section 117 of Cr.P.C which is mandatory as per procedure. ii) That the Magistrate has not formed any opinion that there are sufficient grounds for proceeding under section 107 of Cr.P.C. That the only allegation against the petitioners is that the petitioners often threaten the respondent No. 6 and his family members telephonically and 2 APPCR No. 40 2015 CRMC No. 396 2015 respondent No. 1 has not relied upon any documentary evidence to demonstrate the same. The petitioner No. 1 appeared in person and has vehemently argued that no proper procedure has been followed by the respondent No. 1 for issuing the process against the petitioners. Mr. Suneel Malhotra GA submitted that there is no illegality in the order impugned and the petitioners have been rightly summoned by the respondent No. 1. Heard and perused the record. From the record it is evident that an application was filed by the respondent No. 6 before the Senior Superintendent of Police Doda who marked the same to the In charge Police Post Kastigarh Doda. In the said application it is stated that the petitioners often threaten the respondent No. 6 and his family members with regard to the some ancestral land and they also abuse him. Pursuant to the said application complaint under section 107 117 Cr.P.C was filed before the respondent No. 1 and the respondent No. 1 vide order dated 03.07.2015 summoned the petitioners. The proceedings under section 107 of Cr.P.C are preventive in nature and intended to maintain peace and tranquility in the area. If any person who commits an act that results into disturbing the peace and public tranquility of an area he can be bound down by directing him to execute bond for keeping the peace in the said area provided such an act is against the public at large. 3 APPCR No. 40 2015 CRMC No. 396 2015 The Hon‟ble Apex Court in case titled Madhu Limaye vs. S.D.M. Mongyr 1971AIR(SC)2486 while construing the provision delineated the details required to be reflected in a show cause notice by holding thus: “We have seen the provisions of Section 107. That section says that action is to be taken in the manner here in after provided and this clearly indicate that it is not open to a Magistrate in such a case to depart from the procedure to any substantial extent. This is very salutary because the liberty of the person is involved and the law is rightly solicitous that this liberty should only be curtailed` according to its own procedure and not according to the whim of the Magistrate concerned. It behoves us therefore to emphasise the safeguards built into the procedure because from there will arise the consideration of the reasonableness of the restrictions in the interest of public order or in the interest of the general public.” “Since the person to be proceeded against has to show cause it is but natural that he must know the grounds for apprehending a breach of the peace or disturbance of the public tranquility at his hands. Although the section speaks of the „substance of the information‟ it does not mean the order should not be full. It may not repeat the information bodily but it must give proper notice of what has moved the Magistrate to take the action. This order is the foundation of the jurisdiction and the word „substance‟ means the essence of the most important parts of the information.” A perusal of the order impugned reveals that nothing has been mentioned except the proceedings under section 107 117 of Cr.P.C have been filed against the petitioners. The Magistrate was required to set forth the substance of the information received in the order so as to enable the petitioners to know about the said information but he has not done so. Learned Magistrate has nowhere recorded his opinion that there exists sufficient ground to take action under the provision of 107 of the Code. 4 APPCR No. 40 2015 CRMC No. 396 2015 Otherwise also there is nothing on record to substantiate the allegations leveled in the complaint as all the witnesses examined by the Police clearly demonstrate that the petitioners have been residing at Jammu and they were threatening the respondent No. 6 on phone. Viewed thus the present petition is allowed. The order impugned is set aside and the proceedings are also quashed. JUDGE Whether the order is speaking: Whether the order is reportable:

Motor Vehicles Act not governed by Code of Civil Procedure or Indian Evidence Act: Himachal Pradesh High Court

While deciding an appeal against the order of recovery of damages by the Motor Accident Claims Tribunal, the court decided the evidence will be evaluated on principle of preponderance of probability and that under the said act the tribunal can evolve its own procedure. This Judgment was passed in the case of Sahil Kumar vs. HRTC and Another [FAO No. 349/2019] by a Single Bench Consisting of Hon’ble Justice Vivek Singh Thakur. The said appeal was against an order passed by the Motor Accident Claims Tribunal (MACT), where the claim petition of the appellant was dismissed. The claim was with respect to recovery of damages caused to his scooty, when it hit on a debris of a wall because of being hit by a bus of Respondent no.2 while reversing it.  The appellant claims that while respondent no.2 was parking the bus towards the petrol pump; the bus hit the wall and causing an impact on the scooty. The appellant’s house was adjacent to the bus stand and was separated by a brick wall. Before filing a complaint the parties had entered into a compromise deed and thus the same was reduced to writing which was signed by respondent no.2, appellant, and witnesses. Respondent no.1 on the other hand denies the incident and the compromise. While one of the witnesses admitted to signing the compromise deed and confirmation of signature of respondent no.2 and appellant the other witness and respondent no.2 failed to do the same. Respondent no. 2 however admitted to being present at the time of the incident and on duty. The High Court observed, As held in the judgments of Punjab and Haryana High Courts, the Motor Vehicles Act is not governed by any rules or procedure envisaged by CPC and Evidence Act, the tribunal is empowered to evolve its own procedure. The High Court held that the evidence under the present legislation should be evaluated on the principle of preponderance of probability. The High Court after relying on the various judgments of the Supreme court observed that when no objections are raised with regards to the admissibility of documents, it shall be deemed to have been duly proved and after documents are marked as exhibits there can be no objection with regards to their admissibility. The High court held that there is sufficient evidence for the occurrence of the event, however, there isn’t any to quantify the damages.

Hig h C o urt of H.P on 14 05 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO No. 3419 Judgment Reserved on 22 nd April 2021 Date of Decision 13 th May 2021________________________________________________________Sahil Kumar…AppellantVersusHRTC and another ….RespondentsCoramThe Hon’ble Mr. Justice Vivek Singh Thakur J. Whether approved for reporting 1 Yes______________________________________________________________For the Appellant: Mr. P.M. Negi Advocate throughVideo Conferencing.For the Respondents: Mr. Vikas Rajput Advocate forrespondent No.1 through VideoConferencing.Mr. Arun Raj Advocate forrespondent No.2 through VideoConferencing.__________________________________________________________________Vivek Singh Thakur J. In this appeal challenge has been laid to awardpassed by Motor Accident Claims Tribunalin MAC Petition No. 1017 titled as Sahil Kumar vs.Himachal Road Transport Corporationand another1 Whether Reporters of Local Papers may be allowed to see the judgment Yes Hig h C o urt of H.P on 14 05 HCHP 2whereby claim petition preferred by appellant has beendismissed.2 Appellant had preferred the claim petition forrecovery of damages caused to his scooty by debris of wall which collapsed with hit of bus being driven by respondent No.2on 30.3.2017 at Bus Stand Hamirpur when it dashed with wallwhile respondent No.2 was reversing it.3 It is the case of appellant that Bus Stand Hamirpur isadjacent to his house and is separated by brick wall over aretaining wall and on 30.3.2017 at about 8 AM his scooty wasparked in his courtyard adjacent to retaining wall whereuponbrick wall of Bus Stand was existing and at that time whenrespondent No. 2 was parking his bus towards petrol pump ofHRTC located at Bus Stand Hamirpur the bus had hit the walland with its impact wall collapsed and debris had fallen onscooty of appellant. 4 According to appellant incident was informed toPolice Post Hamirpur and Insurance Company. However respondent No.2 in the Police Post situated at Bus StandHamirpur had entered into a compromise and therefore reportwith police was not recorded formally rather a compromise deedwas reduced into writing as Ext.PW1 A which was signed byrespondent No.2 and appellant and also by witnesses. Hig h C o urt of H.P on 14 05 HCHP 35 Defence of respondents is denial simplicitor. Theoccurrence as well as causing of damage to scooty andcompromise in the matter by respondent No.2 vide writingExt.PW1 A have been denied.6 Appellant including himself has examined fourwitnesses whereas respondent No.2 has examined himself as adefence witness. 7 The High Court of Andhra Pradesh in NationalInsurance Co. Ltd. vs. Syeda Najmunnissa and others reported in 2011 ACJ 1222 referring judgment of Punjab andHaryana High Court in case United India Assurance CompanyLtd. vs. Kamla Rani reported in 1997 ACJ 1081hasreiterated that Motor Vehicles Act is not governed by Rules orprocedure envisaged by the Civil Procedure Code and EvidenceAct and Tribunal is entitled to evolve its own procedure to meetthe ends of justice based on principles of justice equity and goodconscience.8 The Punjab and Haryana High Court in anotherpronouncement in case Sona and others vs. HaryanaRoadways reported in 1996 ACJ 421 has observed that MotorVehicles Act is legislation which was enacted for the benefit ofclaimants and therefore the rule of strict compliance of Hig h C o urt of H.P on 14 05 HCHP 4provisions of Civil Procedure Code is not to be applied to theaccident cases. 9. It is settled legal position that strict principles of CivilProcedure Code and Evidence Act are not applicable to theenquiries to be made in the claim petition. It is also settled thatin claim case evidence is to be evaluated on the basis ofprinciple of preponderance of probability.10 Appellant in his examination in chief has reiteratedthe incident and has stated that he intended to lodge report inPolice Chowki but respondent No.2 had entered into thecompromise by stating that he would indemnify the loss causedto the scooty whereupon compromise deed Ext.PW1 A wasreduced into writing which apart from him was signed byrespondent No.2 Ashok Kumar and witnesses Surender Kumar Varun Kumar and Nilaksh Chopra. He has further stated that hegot his scooty repaired from agency. To substantiate his claim hehad produced the bill Ext.PW1 B on record to prove theexpenditure incurred by him for repairing his scooty from theAgency. He has further stated that on refusal of Ashok Kumar tomake the payment as agreed he was constrained to file claimpetition.11 PW2 Varun Kumar whose signatures are onagreement and compromise deed Ext.PW1 A which he has Hig h C o urt of H.P on 14 05 HCHP 5admitted has stated that he did not remember where thecompromise was reduced in writing and he has refused toidentify the signatures of respondent No.2 on compromise deed.In his cross examination he has stated that agreement wasalready prepared before his arrival and he was only asked to puthis signatures thereon. According to him he had put hissignatures in Police Chowki. He is friend of the appellant but hehas deposed in most natural manner and without making anyattempt to help the appellant out of the way he has narrated thefacts and circumstances in which he had put signatures on thecompromise.12 PW3 Nilaksh another witness to the agreement hasidentified his signatures in red encircle ‘C’ and has also identifiedthe signatures of appellant Sahil respondent No.2 Ashok Kumarand he has reiterated that respondent No.2 had admitted hisguilt and had agreed to indemnify the appellant. He has alsostated that agreement was reduced into writing in Lady PoliceChowki located on the Bus Stand but no Lady Constable hadsigned thereon. According to him he had arrived on spot afterhearing the sound of collapse of wall. 13 Respondent No.2 appearing as RW1 has refuted thecompromise arrived at between him and appellant and has alsonot admitted his signatures on Ext.PW1 A. However in Hig h C o urt of H.P on 14 05 HCHP 6examination in chief as well as in cross examination he hasadmitted that on 30.3.2017 he was on duty on Bus No. HP 67 1840 which was parked at Bus Stand Hamirpur and he waspresent at Bus Stand on duty at 8 AM. He has also admitted thatmobile number mentioned on agreement below his namebelonged to him. Though he has denied his signatures onagreement however it is evident on comparison with naked eyethat signatures put on compromise and signatures put byrespondent No.2 in his statement recorded in the Court whileappearing as RW1 are having identical strokes leading to clearinference that both signatures have been put by one and thesame person.14 It is also noticeable that at the time of production ofcompromise on record and exhibiting it as Ext.PW1 A noobjection with respect to its admissibility or mode of proof wasever taken. Denial of execution of a document is one thing whereas objection with respect to admissibility or mode of proofis another thing. Even where execution of a document has beendenied a party has a right to raise objection with respect toadmissibility as well as mode of proof at the time of itsproduction and exhibition. Undoubtedly even if a document isadmitted in evidence and its mode of proof has not beenquestioned then also it does not mean that contents thereof Hig h C o urt of H.P on 14 05 HCHP 7have been proved to be genuine. Admissibility of a document inevidence and correctness and or genuineness of contents thereofare two separate things. Even after admitting a document inevidence its genuineness as well as relevance can bedetermined either way on the basis of material on record.15 As held by the Supreme Court in P.C.Purushothama Reddiar vs. S. Perumal reported in AIR1972 SC 608 that when no objection is raised regarding theadmissibility of documents the documents shall be deemed tohave been duly proved in accordance with law and can be read inevidence. This principle has again been reiterated by theSupreme Court in P.C. Thomas vs. P.M. Ismail and others reported in AIR 2010 SC 905 observing that once a documenthas been admitted in evidence and marked as an exhibit theobjection that it should not have been admitted in evidence orthat mode adopted for proving the documents is irregular cannot be allowed to be raised at any stage subsequent tomarking of document as exhibit. This principle has also beenfollowed by Division Bench of this High Court in OrientalInsurance Company Ltd. vs. Gian Chand and others reported in III(2002) ACC 168(ms) Judge

High court sets aside Lower Court’s order and grants bail to the petitioner on cruelty and dowry: Karnataka High Court

The criminal petition filed under section 438 of Cr.P.C seeking enlargement on bail for the offence punishable under section 498A( Husband or relative of husband of a woman subjecting her to cruelty), 323 ( punishment for voluntarily causing hurt), 504 ( intentional insult with intent to provoke breach of peace), 506 (punishment for criminal intimidation) read with Section 34 of IPC ( acts done by several person in furtherance of common intention) and sections 3 ( penalty for giving or taking dowry )& 4 ( penalty for demanding dowry) of Dowry prohibition Act by the petitioner. And the petition is allowed by the High court of Karnataka through the learned bench led by the Honorable Mr. Justice H P Sandesh in the case Anandakumar vs state of Karnataka ( criminal petition no.310/2022) on 20th January 2022. Brief facts of the case are that the marriage of this petitioner was solemnized with the complainant on 23rd may 2021. After the marriage due to some problem, the petitioner subject her to cruelty and she was assaulted and Caused her life in threat. Apart from that she was also subjected to dowry also. And then the complainant logged a case the petitioner. Arguments presented by the learned counsel appearing on behalf of petitioner that in a short while of the marriage the said allegation is made and a false allegation is made against the petitioner and the offences are not punishable with death or imprisonment for life. An only allegation is that he assaulted with hands, caused life threat and abused. With regard to the allegation of dowry harassment, it requires a trial. Arguments presented by the learned high court government pleader appearing on behalf of Complainant that this petitioner being the husband of the complainant subjected her for cruelty and also dowry harassment. Hence, there is a prima facie case against this petitioner. After hearing both the counsels and looking into the contents of the complaint and considering the records presented before the honorable court by the counsels, the petition was allowed by court that the petitioner shall be released on bail in the event of his arrest in respect of crime on certain grounds such as: The petitioner shall surrender himself before the Investigating Officer within ten days from the date of receipt of a certified copy of this order and shall execute a personal bond for a sum of Rs.2,00,000/- with two sureties for the like-sum to the satisfaction of the concerned Investigating Officer;The petitioner shall not indulge in hampering the investigation or tampering the prosecution Witnesses ; The petitioner shall co-operate with the investigating Officer to complete the investigation and he shall appear before the Investigating Officer, as and when called for; The petitioner shall not leave the jurisdiction of the Investigating Officer without prior permission till the charge sheet is filed or for a period of three months, whichever is earlier; The petitioner shall mark his attendance once in a month i.e., on 30th of every month between 10.00 am and 5.00 pm., before the investigating Officer for a period of three months or till the charge sheet is filed, whichever is earlier. Click here to read the judgement

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF JANUARY 2022 THE HON BLE MR. JUSTICE H.P. SANDESH CRIMINAL PETITION NO.310 2022 BETWEEN: S O GAVISIDDAIAH AGED ABOUT 31 YEARS R O SHITTAHALLI VILLAGE KIRUGAVALU HOBLI MALAVALLI TALUK ADDRESS SHOWN IN FIR AS SHETTAHALLI VILLAGE MALAVALLI TALUK MANDYA DISTRICT. … PETITIONER BY SRI SOMEGOWDA A.N ADVOCATE) STATE OF KARNATAKA BY MANDYA WOMEN POLICE STATION MANDYA TOWN CIRCLE REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BUILDING Dr. B.R. AMBEDKAR VEEDHI BENGALURU 560001 BY SRI H.S.SHANKAR HCGP) … RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION 438 OF CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN THE EVENT OF HIS ARREST IN CR.NO.46 2021 OF MANDYA WOMEN P.S. MANDYA DISTRICT FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 498A 323 504 506 R W. SECTION 34 OF IPC AND SECTIONS 3 4 OF D.P.ACT. THIS CRIMINAL PETITION COMING ON FOR ORDERS ‘THROUGH VIDEO CONFERENCE’ THIS DAY THE COURT MADE THE FOLLOWING: O R D E R This petition is filed under Section 438 of Cr.P.C. praying to enlarge the petitioner on bail in the event of his arrest in respect of Crime No.46 2021 registered by Mandya Women Police Station Mandya District for the offences punishable under Sections 498A 323 504 506 read with Section 34 of IPC and Sections 3 & 4 of D.P. Act. 2. Heard learned counsel appearing petitioner and the learned High Court Government Pleader appearing for the respondent State. 3. The factual matrix of the case is that the marriage of this petitioner was solemnized with the complainant on 23.05.2021 and she was subjected to cruelty and also assaulted and caused life threat. Apart from that subjected her for dowry harassment. Based on the complaint a case has been registered. The learned counsel appearing for the petitioner submits that in a short while of the marriage the said allegation is made and a false allegation is made against the petitioner and the offences are not punishable with death or imprisonment for life. An only allegation is that he assaulted with hands caused life threat and abused. With regard to the allegation of dowry harassment it requires a trial. Per contra the learned High Court Government Pleader appearing for the State would submit that this petitioner being the husband of the complainant subjected her for cruelty and also dowry harassment. Hence there is a prima facie case against this petitioner. Having heard the learned counsel appearing for the petitioner and the learned High Court Government Pleader appearing for the State and looking into the contents of the complaint and taking into note of the marriage of the petitioner with the complainant and the nature of allegations made in the complaint it is a fit case to exercise the discretion under Section 438 of Cr.P.C. in favour of the petitioner. In view of the discussions made above I pass the The petition is allowed. Consequently the petitioner shall be released on bail in the event of his arrest in respect of Crime No.46 2021 registered by Mandya Women Police Station Mandya District for the offences punishable under Sections 498A 323 504 506 read with Section 34 of IPC and Sections 3 4 of D.P. Act subject to the following conditions: The petitioner shall surrender himself before the Investigating Officer within ten days from the date of receipt of a certified copy of this order and shall execute a personal bond for a sum of Rs.2 00 000 with two sureties for the like sum to the satisfaction of the concerned Investigating The petitioner shall not indulge in hampering the investigation or tampering the prosecution iii) The petitioner shall co operate with Investigating Officer investigation and he shall appear before the Investigating Officer as and when called for. iv) The petitioner shall not leave the jurisdiction of Investigating Officer without prior permission till the charge sheet is filed or for a period of three months whichever is earlier. v) The petitioner shall mark his attendance once in a month i.e. on 30th of every month between 10.00 am and 5.00 pm. before the Investigating Officer for a period of three months or till the charge sheet is filed whichever is earlier. Sd

The prosecution is under an obligation to lay down the foundational facts before presumption can be drawn against the accused U/S 29 and 30 of POCSO Act: Gauhati High Court

The prosecution has to prove the foundational facts of the offence charged against the accused, not based on proof beyond a reasonable doubt, but based on a preponderance of probability. if he is not able to prove the foundational facts of the offence based on a preponderance of probability, the presumption under Section 29 of the Act cannot be invoked against the accused. The judgment was passed by The High of Court Gauhati in the case of Manirul Islam @ Manirul Zaman Vs the State of Assam And Anr. [Crl.A./327/2019] by Division Bench consisting of Hon’ble Shri Justice Suman Shyam & Mir Alfaz Ali. The facts of the case are that the uncle of the victim girl had lodged an ejahar, informing that the accused had forcibly taken away his niece to the house and committed rape on her against her will. In the ejahar, it was mentioned that the delay in lodging the FIR was because of the settlement arrived at in the social meeting. Accordingly, Case was registered under Section 120(B)/34 of the IPC read with Section 4 of the POCSO Act. The Learned Special Judge had held that from the Birth Certificate of the victim girl adduced, it was proved that on the date of the occurrence, the victim was aged 15 years 1 month and 15 days. It was also observed that the evidence adduced by the prosecutrix was trustworthy and therefore, drawing presumption under Section 29 and 30 of the POCSO the learned Special Judge had found the accused guilty under Section 4 of the POCSO. The Learned Counsel for the appellant has argued that there was more than 46 days delay in lodging the ejahar and the victim was also examined nearly 60 days after the alleged occurrence. But there is no plausible explanation for the delay. Urging that delay in lodging of FIR, in this case, would have fatal consequences on the prosecution case. The learned counsel on the corollary submitted that the victim was a minor girl aged below 16 years on the date of the occurrence and as per the medical evidence, her hymen was also found to be torn. By referring to Section 29 and 30 he argued that in a case where the accused is prosecuted for an offence committed under section 3,5,7 and 9 of the POCSO Act, the court is empowered to draw the presumption of guilt of the accused. The court relying on the apex court judgment Noor Aga Vs State of Punjab, wherein, it was held that “if the prosecution is not able to prove the foundational facts of the offence based on a preponderance of probability, the presumption under Section 29 of the Act cannot be invoked against the accused.”

Page No.# 1 12 THE GAUHATI HIGH COURT HIGH COURT OF ASSAM NAGALAND MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.A. 327 2019 SRI TANKESWAR SARMA S O LATE BHADRESWAR SARMA R O SARUTHEKERABARI P.O. AND P.S. MANGALDAI DIST. DARRANG ASSAM THE STATE OF ASSAM AND ANR REP. BY THE P.P. ASSAM 2:SRI UMESH SARMA S O MANIK DEB SARMA R O SARUTHEKERABARI P.O. AND P.S. MANGALDAI DIST. DARRANG ASSAM Advocate for the Petitioner : MR. D HAZARIKA Advocate for the Respondent : MR. M PHUKAN ADDL. PP ASSAM HONOURABLE MR. JUSTICE SUMAN SHYAM HONOURABLE MR. JUSTICE MIR ALFAZ ALI JUDGMENT & ORDER Mir Alfaz Ali J Learned counsel Mr. Samiron Sarma appearing for the appellant and Mr. M. Phukan Additional Page No.# 2 12 Public Prosecutor Assam were heard. 2. This appeal is directed against the judgment and order dated 30.05.2019 rendered by the learned Sessions Judge Darrang Mangaldai in Sessions Case No. 45(DM) 2015. By the said judgment learned Sessions Judge convicted the appellant under Sections 302 307 IPC and Section 27(1) of the Arms Act and sentenced him to undergo rigorous imprisonment for life and fine of Rs.10 000 with default stipulation under Section 302 IPC imprisonment for 10years and to pay fine of Rs.5 000 with default stipulation under Section 307 IPC and rigorous imprisonment for 3years and to pay fine of Rs.2 000 with default stipulation under Section 27(1) of the Arms Act. 3) Prosecution case in a nutshell is that at about 8 a.m. on 14.10.2011 the accused Tankeswar Sarma shot his uncle Panchanan Sarma with a pistol in front of his house and the victim died instantaneously. When the son of the victim came forward the accused shot at him too and thereby caused grievous injury. Nephew of the deceased lodged an FIR on the basis of which Officer in charge of the Mangaldai Police Station registered Mangaldai P.S. Case No. 713 2011 under Sections 302 307 IPC read with Section 25(1)(A) of the Arms Act and upon completion of the investigation laid charge sheet against the appellant. 4) Basing on the charge sheet and the materials produced therewith learned Sessions Judge framed charges against the appellant under Sections 302 307 IPC and Section 27(1) of the Arms Act to which the appellant pleaded not guilty. Prosecution examined 14witnesses in order to bring home the charges against the appellant. Upon completion of the prosecution evidence the accused was examined under Section 313 CrPC wherein he had taken the plea of innocence and examined a witness in his defence 5) The informant Umesh Sarma who lodged the FIR has been examined as PW 1. He deposed in Court that when he was coming home he had noticed deceased Panchanan Sarma lying dead on the road in front of the house of the appellant Tankeswar Sarma. According to him he came to know from the members of the family of Panchanan Sarma that the deceased Panchanan Sarma was shot dead by the accused Tankeswar. He also stated to have seen PW 2 Satish Sarma at the place of occurrence and on being asked by him Satish Sarma told that his fatherwas killed by Tankeswar Sarma. During cross examination this witness stated that there was long standing land dispute between the accused and the deceased. He also stated that accused Tankeswar Sarma used to reside most of the time at Guwahati. Page No.# 3 12 6) PW 2 Satish Sarma is the son of the deceased Panchanan Sarma. He stated in his deposition that the accused had retired from the service of Air Force and they had land dispute with him for long time. On 14.10.2011 at about 7.30 A.M. accused Tankeswar Sarma shot his father with his pistol on the road in front of their house. He also stated that at the time of occurrence Tankeswar Sarma and his father were standing face to face at a distance of 10 ft. and the bullet hit the chest of his father. When his father fell down receiving the bullet injury he raised alarm whereupon Tankeswar Sarma shot at him and consequently he sustained injury on his abdomen. Hearing alarm raised by him his wife Uttara Devicame to the place of occurrence followed by other people. During cross examination he deposed that there was no fencing in between his house and that of the appellant and the house of the accused is situated on the western side of their house. He further stated in his cross examination that in the morning when he saw Tankeswar Sarma he had charged himfor cutting their crops and also stated that he would lodge a complaint before the village headman whereupon Tankeswar Sarma had shown him his pistol and threatened to kill him. He further stated that when Tankeswar Sarma came out to the road the deceased also came out to the road and he PW 2) tried to bring him back. He also stated that when his father was shot by the appellant he did not come forward to help his father. 7) PW 3 Reba Kanta Sarma is the elder brother of the accused. According to him having heard that his uncle Panchanan Sarma was shot dead he rushed to the house of Panchanan Sarma and had seen Panchanan Sarma lying dead in front the house of Tankeswar Sarma. This witness was however declared hostile by the prosecution. It was elicited during his cross examination by the defence that he did not see any person near the body of the deceased. According to him Police arrived at the place of occurrence after half an hour 8) PW 4 Bolo Ram Sarma deposed that he was told by the village headman that Panchanan Sarma died and he accompanied the village headman to the house of Panchanan. According to him Police seized four nos. of empty cartridges vide Exihibit 2 Seizure List and he put his signature in the Seizure List as witness. He also stated that at the time of obtaining his signature in the Exhibit 2 Police did not show him the seized articles PW 5 Bhupen Sarma and PW 6 Uttam Kumar Sarma were witnesses to the Inquest Report. Both of them have proved their signature in the inquest reportPW 7 Sarat Chandra Sarma was also a witness to the seizure of pistol and empty 11) PW 8 Madhab Sarma stated that about 3 4 years ago he had seen the deceased Panchanan Sarma lying on the road near the house of Tankeswar Sarma. He also stated to have seen bullet injury on the body of Panchanan Sarma. 12) PW 9 Deben Ch. Gohain was the armourer who examined the arms and ammunition seized in the instant case. According to him one 17.65 mm pistol and four nos. of 7.65 mm empty cartridges were sent to him for examination. He examined the pistol and the empty cartridges and found the same to be factory made firearms. He also deposed that the pistol was serviceable at the time of examination. 13) PW 10 Dr. Deep Kr. Deka deposed that injured Satish Sarma was examined in Gauhati Medical College Hospital at about 12.15 p.m. on 14.10.2011 and during examination it was found that there was an entry wound near umbilicus which looks like gun shoot entry wound. There was also an exit wound on the flank and a small fracture over the right iliac crest. According to Doctor the nature of injury was grievous. During cross examination he stated that he did not examine the injured clinically and he only furnished the the Medico Legal 14) PW 11 Dr. Jitendra Kumar Saharia who conducted the post mortem examination on the body of the deceased found the following injuries “A. 1): A through injury at the left chest at 7th inter costal space. Size ½ x ½ cm into chest deep A. 2) : An everted margin injury seen over the left back at inter costal space scapular back. Size: 1 x 1 cm into chest deep. B. 3) : An injury seen on actero lateral aspect of right thigh at its middle part. Size ½ cm x ½ cm 4) : An injury seen on posterior aspect of right gluteal region. Margin is everted. Size: 1cm x 1 cm into deep to the thigh muscle.” In the opinion of the Doctor cause of death was due to shock and hemorrhage as a result of firearm injuries. In the opinion of the Doctor gunshot injuries sustained by the Page No.# 5 12 deceased was sufficient to cause death of a person instantaneously. 15) PW 12 Uttara Devi is the wife of Satish Sarmaand daughter in law of the deceased. She deposed that the occurrence took place on the path abutting their courtyard. According to her three days before the occurrence accused had cut their paddy and used the same as cattle feed. She also stated that on the day of incident having seen the accused washing his face at the tube well her husbandtold him that a complaint had been lodged before the village people against him for cutting the paddy and asked him to be present in the village meeting whereupon the accused came out with his pistol and started shouting at her father in lawby calling him dog and challenged him to come out of the house. He also threatened to kill him by his pistol. According to her the deceased was already in the courtyard and hehad asked the accused as to what had happened and why was he making noise. The accused then suddenly shot at himfrom a close range and receiving the bullet injury her father in law died at the spot. She further stated that the accused fired several round of bullet aiming her father in law Panchanan Sarma. She further stated that when her husband Satish Sarmaraised alarm the accused also shot him and consequently he sustained injury. As she raised hue and cry the neighboring people came and arranged a vehicle to shift the injured to hospital. It was elicited during her cross examination that earlier she lodged an FIR against the accused for insulting her. 16) PW 13 and PW 14 were the Investigating Officers. Their testimonies were more or less formal in nature. According to the PW 13 he took charge of the investigation after the earlier Investigating Officer retired. Having taken charge of the investigation he had sent the arms and ammunition for forensic examination. He also collected the medical report of the injured as well as the post mortem report. PW 14 stated that before lodging the formal FIR a GD entry was made on the basis of verbal information given by one Bhupen Sarma and he proceeded to the place of occurrence on the basis of the said GD entry. He also stated to have seized four nos. of empty cartridges from the place of occurrence. PW 14 also stated that during visit to the place of occurrence he had found the house of the accused and that of the deceased in the same boundary 17) The accused examined one Tomizul Rahman as DW 1. He deposed that he heard of a quarrel between the accused and the deceased. According to him on the day of occurrence at about 7 to 7.30 A.M. he came to the house of the accused for purchasing four nos. of bamboos. He also stated to have noticed the accused proceeding to the Police Station. According to him when the accused was going to Police Station the victim Panchanan Sarma deceased) and Satish Sarmaarmed with spade and axe respectively accosted the accused and a scuffle ensued amongst them and in course of the scuffle accidentally a bullet came out of the pistol. He also stated that having heard the sound of pistol he had left the Page No.# 6 12 place out of fear. indicated above. 18) Taking note of the above evidence learned Sessions Judge convicted the appellant under Sections 307 302 IPC and Section 27of the Arms Act and awarded sentence as 19) Learned counsel for the appellant Mr. S. Sarma submitted that the deceased was the aggressor and when the appellant tried to ward off an attack on him made by the deceased and Satish Sarma a scuffle ensued between them and in course of the scuffle accidentally the bullet got fired and as such the appellant is entitled to the benefit of the general exception under Section 80 of the IPC. Mr. Sarma further submitted that the injuries having been inflicted in course of sudden fight and scuffle without any intention and premeditation the appellant could not have been convicted under Section 302 IPC at the best he could have been held liable for an offence of culpable homicide not amounting to murder under Section 304 IPC. 20) Per contra supporting the impugned judgment learned Additional Public Prosecutor Assam Mr. Phukan submitted that prosecution has brought on record overwhelming evidence to establish the charge against the accused and as such the impugned judgment calls for no interference. Mr. Phukan further submitted that multiple bullets were fired and as such the plea of accidental release of bullet is not tenable 21) We have considered the submission made by the learned counsel for both the sides and also meticulously gone through the evidence and materials brought on record. 22) The fact that deceased Panchanan Sarma died due to the injuries caused by firearm and PW 2 Satish Sarma sustained a bullet injury are not in dispute. However the contention of the learned counsel for the appellant Mr. Sarma is that the injuries were caused by accidental firing and as such the appellant is entitled to the benefit of general exception under Section 80 of the Indian Penal Code. In fact the appellant took the plea of accidental firing during his examination under Section 313 CrPC while responding to the Question No. 3 put to him. He stated as follows: Page No.# 7 12 “The truth is that in the morning on the day of occurrence Satish Sarma and Panchanan Sarma entered my house and intended to kill me with spade and dao. When I was going to the PS to give information of the matter they confronted me on the road and when they tried to grab my pistol the pistol got fired in the ensuing scuffle and unfortunately they 23) In order to substantiate the plea of accidental firing the accused has examined one Tomizur Rahman as defence witnessFrom the medical evidence more particularly the testimony of the PW 10 Dr. Deep Kumar Deka as well as the injury reportit is evident that Satish Sarmasustained bullet injury on his abdomen and these testimonies remained unimpeached. PW 11 Dr. Jitendra Kumar Saharia who conducted the post mortem examination has found four injuries on the body of the victim of which Injury Nos. 1 and 2 were entry and exit wound caused by bullet. So far as the Injury Nos. 3 and 4 are concerned it is not clear whether those injuries were caused by bullet or not inasmuch as the Doctor has not stated clearly that those injuries were caused by bullet. During cross examination also nothing could be elicited as to the cause of those two injuries. Be that as it may the oral testimony of PW 2 that he sustained a bullet injury at the abdomen and the post mortem reportreflecting bullet injuries on the chest of the deceased coupled with the testimony of the doctors PW 10 and PW 11 leaves no room for doubt that at least two bullets were fired which caused injury to the deceased and PW 2. The PW 14 deposed that he seized a pistol from the possession of the accused and recovered four empty cartridges from the place of occurrence. The PW 9 stated that he has examined the 7.6 mm pistol bearing registration number 127278 and four nos. of empty cartridges. According to this witness arms and ammunitions examined by him were factory made. The PW 12 also stated that accused fired multiple round of bullet. Thus the testimony of the PW 11 PW 12 and PW 14 also Page No.# 8 12 demonstrates that multiple bullets were fired by the accused. Though from the injury sustained by the deceased and the PW 2 it cannot be said for certain that all the injuries were caused by bullets but what has been conclusively proved by the medical evidence and the oral testimony of PW 2 PW 12 and PW 14 is that multiple bullets were fired and at least one bullet hit the PW 2 and another hit the deceased. The testimony of the PW 14 regarding seizure of four cartridges from the place of occurrence and the testimony of the PW 12 to the effect that multiple bullets were fired as well as the medical evidence adduced by the prosecution remained unimpeached. Therefore it is hardly believable that multiple bullets got fired accidentally in course of scuffle. Admittedly the appellant is a responsible retired Air Force personnel. Though the pistol held by him was licensed one he was supposed to keep it under lock. Be that as it may in view of the candid evidence adduced by the prosecution as indicated above the plea of accidental firing taken by the accused and the testimony of the DW 1 to that effect hardly inspire confidence for the simple reason that multiple shot could not be accidental and as such the plea of accidental firing also suffers from the vice of the inherent improbabilities. It is the settle position that the burden to prove any general exception is upon the accused which can be discharged by him either by adducing defence evidence or from the evidence and materials adduced by the prosecution. The standard of proof is also not higher than that of the preponderance of probability. However from the evidence and materials alluded hereinbefore we find that the appellant has not been able to establish the plea of general exception under Section 80 IPC even in the touchstone of probability and as such the plea of general exception in our considered opinion had fallen 25) Let us now consider the alternative submission made by the learned defence counsel. Mr. Sarma learned counsel for the appellant contended that the appellant did not have any intention to cause death and the bullet injuries were inflicted in course of quarrel and scuffle in the heat of passion and as such the appellant at the best may be liable for lesser punishment under Section 304 Part II IPC. In support of his submission Mr. Sarma has placed reliance on the following decision i) Manjeet Singh v. State of H.P. reported in5 SCC 697 and ii) Rajender Singh v. State of Haryana reported in15 SCC 507. Learned counsel for the appellant referring to the oral testimony of PW 1 submitted that it was the deceased and PW 2 who were the aggressor inasmuch as the occurrence took Page No.# 9 12 place in front of the house of the accused. The PW 1 stated in his evidence that while returning home he had seen the deceased Panchanan Sarma lying dead in front of the house of the accused Tankeswar Sarma. PW 2 deposed that Tankeswar Sarma shot Panchanan Sarma on the road just in front of their home. He also stated in cross examination that there was no fencing in between their house and that of the accused. It is also in the evidence of the Investigating Officerthat house of the deceased and that of the accused were in the same boundary. Evidently both the accused and deceased are relations belonging to the same family. Therefore from the testimony of PW 1 & PW 2 and that of the Investigating Officer PW 14) it is clearly discernible that residential house of both the parties were located in the same compound having a common frontage. Therefore the fact that the occurrence took place in front of the house of the appellant or the body of the deceased was found lying in front of the house of the appellant does not necessarily raise an inference that the deceased was the aggressor 27) The PW 2 deposed in unambiguous term that they had land dispute with the appellant During cross examination this witness also stated that on the day of occurrence in the morning when he had seen the appellant Tankeswar Sarma he charged him of cutting their crops and also told that he would lodge a complaint with the village headman whereupon the appellant had shown him the pistol and threatened to kill him. He further stated that when the appellant Tankeswar Sarma came out to the road his fatheralso came to the road but he tried to take his father back. The oral testimony of PW 12 also assumes significance herein inasmuch as she also stated in her evidence that when the appellant was washing his face at the tube well in the morning her husband told the appellant that he had lodged a complaint with the village people for cutting their paddy by the appellant and also asked the appellant to attend the village meeting. According to her upon saying so by the PW 2 the accused came out with his pistol and started shouting at the deceased by calling him dog and also challenged him to come out of the house. He also threatened to kill him by shooting with his pistol. She further stated that when her father in lawwho was already in the courtyard challenged the accused as to why he was making the noise the accused suddenly fired several rounds of bullet from a close range causing injury to the deceased. Thus the testimony of the PW 2 and PW 12 clearly demonstrates that incidents of firing was preceded by a hot exchange and quarrel between the accused and the deceased. 28) Admittedly both the parties belonged to the same family and reside in the same Page No.# 10 12 campus and their relation was also not cordial due to property dispute. What is evident from the testimony of the PW 2 and PW 12 is that when the appellant was washing his face in the morning the PW 2initiated the quarrel by challenging the appellant to lodge complaint before the villagers for cutting their paddy whereupon the appellant came out with the pistol and challenged the deceased to come out and also hurled abuses at him deceased) and the deceased also came out and challenged him by saying as to why was he shouting and creating noise. From the testimony of the PW 12 it is also discernible that at the beginning when the PW 2 challenged the appellant for the previous incidence of cutting paddy the appellant did not have the armed with him and in course of the exchange of words he came out with the pistol. From the above evidence it has been established that the accused who was a retired Air Force personnel having a licensed pistol shot the deceased in the heat of passion in course of sudden quarrel and as such it is difficult to say that the act of the appellant causing death of the deceased was pre meditated. When evidently the appellant inflicted the injury causing death of the deceased without any pre meditation and in the heat of passion during sudden quarrel the appellant could not have been held liable for offence of murder. However the facts and circumstances under which the appellant inflicted the injury causing death of the deceased he shall be liable for committing an offence of culpable homicide not amounting to murder under Section 304 IPC. 29) In Rajender Singh v. State of Haryanain a similar facts situation the Apex Court converted a conviction under Section 302 IPC to 304 IPC held as under “19. Consequently we are convinced that since the death of Suraj Mal and Shri Ram had occurred due to the firing resorted to as part of his self defence the same would amount to culpable homicide not amounting to murder which was committed without any premeditation in a sudden fight in the heat of passion upon a sudden quarrel and that the offender did not take undue advantage or acted in a cruel or unusual manner which would normally fall under Exception 4 of Section 300 IPC. Consequently at best conviction of the appellant can only be under Part II of Section 304 IPC for which he could have been inflicted with a punishment of ten years. For the very same reason the conviction imposed under Section 27 of the Arms Act cannot also be sustained. It is stated that the appellant is suffering the sentence in jail and has so far suffered eleven years. The conviction is modified into one under Section 304 Part II and the sentence already suffered by the appellant is held to be more than sufficient.” In Manjeet Singh v. State of Himachal Pradeshthe Apex Court had converted a conviction under Section 302 IPC to one under Section 304 IPC observed as Page No.# 11 12 “25. The question now requires determining is as to what is the nature of offence that the accused has committed. The evidence produced against the accused does not show that the accused had any motive to cause death of the deceased or have intended to cause such bodily injuries which were sufficient in the ordinary course of nature to cause the death of the deceased. Evidence on record also does not establish that the injuries caused on the body of the deceased must in all probability cause his death or likely to cause his death. On the spur of the moment during the heat of exchange of words accused caused injuries on the body of the deceased which caused his death. Therefore the ingredients of the murder as defined in Section 300 IPC have not been established against the accused. In our opinion the accused was guilty of culpable homicide not amounting to murder under Section 304 IPC and considering the fact that the accused had no intention to either cause the death of the deceased or cause such bodily injury as is likely to cause death of the deceased it would be sufficient to impose on accused a sentence of seven years rigorous imprisonment and to impose on him a fine of Rs.5 000 and in default of payment of fine a further imprisonment of six months.” 31) Thus having regard to the facts that the appellant inflicted the injury in the heat of passion in course of sudden quarrel and scuffle without any pre meditation we set aside the conviction and sentence of the appellant under Section 302 IPC instead convict him under Section 304 Part 1 IPC and sentence him to rigorous imprisonment for 7years. 32) We also modify and alter the conviction and sentence of the appellant under Section 307 IP to 308 IPC i.e. attempt to commit culpable homicide not amounting to murder reason being that a person can be convicted under Section 307 IPC only when all the ingredients of murder exist except the fact of death. To put it differently in order to convict a person for attempt to murder under Section 307 IPC it must be proved that he has done some act with such intention or knowledge that if by the act done death would have been caused he would have been guilty of murder. In the present case we have already noticed that in the fact situation of the case the accused could not have been held liable for offence of murder. Therefore necessarily conviction under Section 307 IPC also shall not be sustainable. Accordingly we direct the appellant to undergo rigorous imprisonment for 3years under Section 308 IPC. Sentence of fine and default sentence of punishment awarded by the learned trial Court remain unaltered. 33) With the modification and alteration in the conviction and sentence to the extent indicated above the appeal stands partly allowed. 34) Send down the record of the trial Court. Page No.# 12 12 JUDGE JUDGE

The Court is not inclined to grant pre-arrest bail to the petitioner after being arrested under Sections 447, 341, 323, 324, 325, 354B,379,504,506 and 34IPC: High court Of Patna

The petitioner was arrested under Section 447 of the Indian Penal Code, “Punishment for criminal trespass”, section 341, “Punishment for wrongful restraint”,  section 323, “Punishment for voluntarily causing hurt”, section 324, “ Voluntarily causing hurt by dangerous weapons or means”, section 325, “Punishment for voluntarily causing grievous hurt”, section 354B, “Whoever assaults or uses criminal force to any woman”, section 379, “Snatching with the intention to commit theft” section 504, “Intentional insult with intent to provoke breach of the peace”, Section 506, “Punishment for criminal intimidation” and section 34IPC, “Acts done by several persons in furtherance of common intention” This is in connection with Digha PS Case No. 152 of 2020 dated 10.03.2020 This Judgment was given in the high court of Judicature at Patna by honorable Mr. Justice Ahsanuddin Amanullah on the 12th of July 2021 in the case of Ravi Singh versus the state of Bihar criminal miscellaneous No. 33999 of 2020, Mr. Agrawal represented as the senior advocate for the petitioner and Mr. Raj Singh represented the state of Bihar as the additional Public Prosecutor, the proceedings of the court were held through a video conference. The following are the facts of the case, the petitioner was accused along with 40-50 others of attacking the informant as they were singing and partying near the house of the informant, the informant asked them to remove their motorcycles and the petitioner refused and initiated a fight and attacked the informant using sharp weapons causing injury on the head of the informant, further allegations against the group of people were that they attacked the informant on his shoulder and illegally entered his house and misbehaved with his sister-in-law and abused his father and snatched 26,000Rs from the informant. The counsel for the petitioner submitted that the parties are neighbors and due to some misunderstanding and altercation initiated a petty dispute and the allegations against the petitioner are false and blown out of proportion, it was further held that the injury caused was of simple in nature caused by blunt substances, previously on the 02.09.2020 in Anticipatory Bail Petition No. 3806 of 2020, the prayer for anticipatory bail was rejected and since petitioner is still young and has no criminal antecedent plea for bail was made in the high court.    The Additional Public Prosecutor submitted that the 40-50 persons must be held in custody as they were creating a public nuisance in full public view sending a wrong message to the society and fear is created in the neighborhood, the petitioner was trying to flex his mussels to intimidate the residents.

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 339920 Arising Out of PS Case No. 152 Year 2020 Thana DIGHA District Patna Ravi Singh an adult male aged about 25 years Son of Anil Singh Resident of Fair Field Colony Behind Puja Flower Mill Police Station Digha District Patnafor the State. 3. The petitioner apprehends arrest in connection with Digha PS Case No. 1520 dated 10.03.2020 instituted under Sections 447 341 323 324 325 354B 379 504 and 506 34 of the Indian Penal Code 4. The allegation against the petitioner is that he in a group of 40 50 persons was singing and partying near the house of the informant and when they returned after closing his office and Patna High Court CR. MISC. No.339920 dt.12 07 2021 asked them to remove their motorcycles they refused and indulged in a fight and then it is alleged that the petitioner attacked the informant with sharp weapon causing injury on his head. It was further alleged that the other persons attacked the informant on his left shoulder and after entering his house misbehaved with his sister in law abused his father and snatched Rs. 26 000 the informant was bringing after closing his office 5. Learned counsel for the petitioner submitted that the parties are neighbours and there may have been some misunderstanding and altercation on some petty dispute but the allegation is incorrect and blowne out of proportion. It was submitted that the injury on the person of the informant has been found to be simple caused by hard and rough object as has been noted in the order of the Sessions Judge Patna dated 02.09.2020 in Anticipatory Bail Petition No. 38020 by which prayer for anticipatory bail of the petitioner has been rejected. Learned counsel submitted that the petitioner is young and that he has no other criminal antecedent 6. Learned APP submitted that 40 50 persons creating nuisance on the road which is a public place and in full public view sends a wrong message to the society and the effect is not localized between two persons for an atmosphere of uncertainty Patna High Court CR. MISC. No.339920 dt.12 07 2021 and fear is created and further it shows that the petitioner was trying to flex his mussels in full public view which also intimidates other simple citizens and residents of the area 7. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties the Court is not inclined to grant pre arrest bail to the petitioner. 8. Accordingly the petition stands dismissed (Ahsanuddin Amanullah J

Welfare of children u/S 40 of the POSCO Act to be a priority for the Special Juvenile Police Unit: Bombay High Court

In light of matter pertaining under the POSCO Act, the Bombay High Court bench in the matter of Arjun Kishanrao Malge Vs The State [CRPIL/5/2021]; comprising a quorum of Dipanka Datta J. and G.S. Kulkarni J. held that the legislative intent behind S. 40 the POSCO Act is to prioritize the welfare of children, be it someone either a victim or even a witness. The petitioner who is a social worker, working with child victims of sexual abuse and their families, across Mumbai and who is also performing the role as a support person in child sexual abuse cases in cases before the Child Welfare Committee, is before the Court pro bono public, raising issues in regard to the rights of the children to participate in the trial of offences under the POCSO Act. The petitioner raises a concern in regard to the implementation and compliance of Section 40 of the POCSO Act read with Rule 4 of the Protection of Children from Sexual Offences Rule, 2012. The petitioner raises a concern of the oblivity and non-recognition of the provisions of Section 439(1-A) of the Code of Criminal Procedure as inserted by the Act 22 of 2018 with effect from 21 April 2019 in cases under the POCSO Act. The petitioner has contended that there are several such cases where the victims, victim’s parents, complainants, support persons are not being informed about applications being moved by the accused persons despite the fact that the POCSO Act and Rules clearly mandate the right of the victim and/or parents, complainants, support persons to participate in the proceedings The court after a conjoint reading of Section 40 of the POCSO Act read with Rule 4 of the POSCO Rules the legislative mandate is that of complete information to be made available, of all the proceedings and its progress in relation to the offences under the said Act, to the parent or the guardian of the child, with the sole object to safeguard the interest and wellbeing of the child at every stage of the judicial process, to give effect to the mandate of Articles 15 and 39 of the Constitution. On behalf of the petitioner, the court was shown several orders passed by the Courts trying such offences wherein the concerned Courts have completely overlooked the mandate of Section 40 of the POCSO Act read with Rule 4 of the POCSO Rules. The court referred to the decision in Eera Through Dr.Manjula Krippendorf Vs. State (NCT of Delhi) and Anr. {(2017)15 SCC 133} in which the Supreme Court observes that the purpose of bringing such legislation, is to secure the best interest of the child pertaining to the offences against the children. It is held that the interest of the child both as victim as well as witness need to be protected and the stress of the legislation is providing a child-friendly procedure and that the dignity of the child is of immense emphasis, in the scheme of the legislation.

on 15 04 2021 on 17 04 2.CRPILNo.52021corrected.docxIN THE HIGH COURT OF JUDICATURE AT BOMBAYCRIMINAL APPELLATE JURISDICTIONPUBLIC INTEREST LITIGATION NO.5 OF 2021Arjun Kishanrao Malge....Petitionerversus1. State of Maharashtra2. Director General of Police3. Maharashtra State Commission forProtection of Child Rights.... Respondents…..Mr.Somasekhar Sundaresan with Ms.Saziya Mukadam & Ms.KanchiTrivedi for the Petitioner.Mr.Deepak Thakre Government Pleader & Smt.P.P.Shinde APP for theState.Mr.Wesley Menezes with Mr.Waqar Nasir Pathan Mr.Rajdeep Lahri forRespondent No.3.…..CORAM : DIPANKAR DATTA CJ &G. S. KULKARNI J.RESERVED ON : MARCH 17 2021. PRONOUNCED ON : APRIL 08 2021JUDGEMENT:1.The petitioner who is a social worker working with childvictims of sexual abuse and their families across Mumbai and who isalso performing the role as a support person in child sexual abuse casesin cases before the Child Welfare Committee is before the Court probono publico raising issues in regard to the rights of the children toparticipate in the trial of offences under the Protection of Childrenfrom Sexual Offences Act of the Code of Criminal Procedureand 4(15).These sub rules interalia provide for an obligation interalia on theSpecial Juvenile Police Unitor the local police to keep the childand child’s parents or guardian to be informed about the developments including the arrest of the accused applications filed and other Courtproceedings and the nature of the information to be provided. Theobject of such provision being to ensure participation of the victim inthe administration of justice in POCSO cases. 4.The petitioner also refers to the Criminal Law(Amendment) Act 2018 whereby Section 439 of the Cr.P.C. which dealswith the “Special power of the High Courts or Court of Sessionregarding bail” being amended incorporating sub sectionwitheffect from 21 April 2019 to provide that the presence of the informantor any person authorised by him shall be obligatory at the time ofPrashant Rane Judgment is corrected as per speaking to the minutes of the order dt.9 4 20213 on 15 04 2021 on 17 04 2.CRPILNo.52021corrected.docxhearing of an application for bail of a person accused of havingcommitted an offence under sub sectionof section 376 or section376AB or section 376DA or section 376DB of the Indian Penal Code.These are offences under the Indian Penal Code in relation to thechildren. The petitioner contends that considering the mandate ofSection 40 of the POCSO Act read with Rule 4 of the POCSO Rules theamendment to the provisions of sub sectionof Section 439 of theCr.P.C. are required to be applied mutatis mutandis to the offencesunder the POCSO Act. Such application of these provisions wouldensure a fair representation to the victims of child sexual assault theirfamilies and the public in general. More particularly as Rule 4 of thePOCSO is not restricted to informing the victims complainants aboutthe bail applications moved by the accused but is also applicable toany all the applications moved by the accused before the trial Court.5.The petitioner has contended that although Rule 4 of thePOCSO Rules is ingrained in the Rule book since 2012 the same hasbeen neglected and ignored in practice. It is his contention that theamendment to Section 439 of the Cr.P.C. by incorporating sub section(1A) has also been overlooked by the police and the trial Courts asappropriate steps to inform the victims complainants of the bailapplications moved by the accused which are falling within the purviewPrashant Rane Judgment is corrected as per speaking to the minutes of the order dt.9 4 20214 on 15 04 2021 on 17 04 2.CRPILNo.52021corrected.docxof the POCSO Act the offences in relation to children as specified insub sectionof Section 439 of the Cr.P.C. are not taken. It iscontended that the said amendment to Section 439 cannot beinterpreted to be directory when its purport is mandatory. Insupporting the contention that these provisions are overlooked and ornot implemented the petitioner has placed on record orders which arepassed by the different Sessions Court which clearly show that neitherthe victims or the complainants at any point of time were informed ofthe proceedings nor any notice was served in compliance of Section 40read with Rule 4 of the POCSO Act and Rules or the mandate ofSection 439(1 A) of the Cr.P.C followed.6.The petitioner has contended that there are several suchcases where the victims victim’s parents complainants support personsare not being informed about applications being moved by the accusedpersons despite the fact that the POCSO Act and Rules clearly mandatethe right of the victim and or parents complainants support persons toparticipate in the proceedings and be afforded a fair representation inthe same. The petitioner would urge that such concern was addressedalso by the Delhi High Court when it issued “Practice directions” dated24 September 2019. Being intrigued with the non compliance of suchpractice directions a learned Single Judge of the Delhi High Court inPrashant Rane Judgment is corrected as per speaking to the minutes of the order dt.9 4 20215 on 15 04 2021 on 17 04 2.CRPILNo.52021corrected.docxJeena Jha Vs. Union of India no.50117)passed orders directing that a strict compliance of the PracticeDirections dated 24 September 2019 be ensured. The said order alsorequires District Judges to file a report in the High Court as to whetherthe ‘practice directions’ are being followed and if not the reasons forsuch omission. The High Court also observed that these practicedirections were to mutatis mutandis apply to the offences under thePOCSO Act. The petitioner has also referred to similar directions of theDelhi High Court in Criminal M.C.No.14720.7.On the above conspectus the primary grievance as raisedby the petitioner in these proceedings is in regard to the non compliance of the provisions of Section 40 of the POCSO Act read withRule 4 of the POCSO Rules and of the procedure under Section 439(1 A) of the Cr.P.C by the police and the Courts. It is contended that non observance of these provisions infringes the fundamental rights of suchchildren guaranteed under Articles 14 and 21 of the Constitution. Thepetitioner has accordingly prayed for the following reliefs:“i.Issue directions to all the criminal courts to exercisejurisdiction to secure efficient and effective participation ofchild victims through their legal representatives at allstages of the judicial process ii.Frame Guidelines issue directions to the RespondentNo.1 2 and 3 to ensure strict compliance of Section 40 ofthe POCSO Act read with Rule 4 of the POCSO Rules soPrashant Rane Judgment is corrected as per speaking to the minutes of the order dt.9 4 20216 on 15 04 2021 on 17 04 2.CRPILNo.52021corrected.docxthat the Child Victims of sexual abuse assault arenecessarily protected and their interests safeguarded iii.Declare that Section 40 of the POCSO Act read with Rule 4of the POCSO Rules mandates that the Child Victim Parents or Guardian as the case may be have to beinformed regarding any Application for Bail preferred by asuspected offender accused person iv.Declare Section 40 of the POCSO Act read with Rule 4 ofthe POCSO Rules necessarily require that the LegalRepresentative of the Child Victim Parents or Guardians asthe case may be is heard before releasing the suspectedoffender on Bail v.Frame Guidelines issue directions to the RespondentNo.1 2 and 3 to ensure strict compliance of Section 439of the Cr.P.C. and declare that the provisions practices tobe followed under Section 439of the Cr.P.C. are alsomade mutasis mutandis applicable to offences under thePOCSO Act with respect to the bail applications moved bythe Accused Offender in such cases vi.Direct Respondent No.5 to develop a mechanism to monitorcompliance of Section 40 of the POCSO Act read with Rule4 of the POCSO Rules.”8.A reply affidavit is filed on behalf of the State of Mr.ManojNaval Patil Superintendent of Police. Referring to the provisions ofSection 40 of the POCSO Act and Rule 4(13) and 4(15) of the POCSORules as also the provisions of Section 439 of the Cr.P.C. it is stated thatto sensitize all the Unit Commanders of the said provisions instructionshave been issued to all the Unit Commanders vide Circular dated 6October 2020. It is contended that in this view of the matter thePrashant Rane Judgment is corrected as per speaking to the minutes of the order dt.9 4 20217 on 15 04 2021 on 17 04 2.CRPILNo.52021corrected.docxpetition ought to be disposed of as adequate steps are being taken onbehalf of the State Government.9.A reply affidavit has been filed on behalf of respondentno.3 Maharashtra State Commission for Protection of Child Rights ofSmt.Rohini Madhukar Lade Assistant Administrative Officer to contendthat respondent no.3 would concur with the petitioner that theentitlement to a legal counsel of the choice of the family or the guardianof the child as conferred by Section 40 of the POCSO Act depicts thestatutory mandate that the child is entitled to be legally represented atall stages of the legal proceedings under the POCSO Act. It iscontended that the said provision is coherent and consistent with thewider scheme of the legislation. It is contended that Article 39A of theConstitution of India casts an obligation upon the State to provide freelegal aid thereby clearly bolstering the need for legal representation ofthe victim at all stages of the proceedings. It is also contended that theguidelines issued by the Government of India Ministry of Women andChild Development also interalia recognizes the rights namely of thechild to be informed right to be heard and to express views andconcerns right to effective assistance right to be protected fromhardship during the justice process right to compensation. In short thePrashant Rane Judgment is corrected as per speaking to the minutes of the order dt.9 4 20218 on 15 04 2021 on 17 04 2.CRPILNo.52021corrected.docxaffidavit of respondent no.3 supports the contentions as urged by thepetitioner.Discussion and conclusion10.We have heard Mr.Somasekhar Sundaresan learnedCounsel for the petitioner and Mr.Deepak Thakre learned GovernmentPleader alongwith Smt.Shinde learned APP for the State andMr.Wesley Menezes learned Counsel for the respondent no.3. 11.Before we embark upon the discussion it would beimperative for us to note the provisions of Section 40 of the POCSO Act the provisions of Rule 4(13) 4(14) and 4(15) of the POCSO Rules asalso the provisions of Section 439(1 A) of the Cr.P.C. Such provisionsread thus: POSCO Act“40.Right of child to take assistance of legal practitioner Subjectto the proviso to Section 301 of the Code of Criminal Procedure 1973(74) the family or the guardian of the child shall be entitled tothe assistance of a legal counsel of their choice for any offence underthis Act Provide that if the family or the guardian of the child areunable to afford a legal counsel the Legal Service Authority shallprovide a lawyer to them.”POSCO Rules 2020Prashant Rane Judgment is corrected as per speaking to the minutes of the order dt.9 4 20219 on 15 04 2021 on 17 04 2.CRPILNo.52021corrected.docx“4. Procedure regarding care and protection of child. Where any Special Juvenile Police Unitor the local police receives any information under sub sectionof section19 of the Act from any person including the child the SJPU or local police receiving the report of such information shall forthwith disclose to the person making the report the following details:his or her name and designationthe address and telephone numberthe name designation and contact details of the officer whosupervises the officer receiving the information.(13) It shall be the responsibility of the SJPU or the local police to keep the child and child s parent or guardian or other person in whom the child has trust and confidence and where a support person has been assigned such person informed about the developments including the arrest of the accused applications filed and other court proceedings.(14) SJPU or the local police shall also 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. It shall also complete the Preliminary Assessment Report in Form B within 24 hours of the registration of the First Information Report and submit it to the CWC.(15) The information to be provided by the SJPU local police or support person to the child and child s parents or guardian or other person in whom the child has trust and confidence includes but is notlimited to the following:the availability of public and private emergency and crisis servicesthe procedural steps involved in a criminal prosecutionthe availability of victim s compensation benefitsthe status of the investigation of the crime to the extent it isappropriate to inform the victim and to the extent that it will notinterfere with the investigationthe arrest of a suspected offenderthe filing of charges against a suspected offender Prashant Rane Judgment is corrected as per speaking to the minutes of the order dt.9 4 202110 on 15 04 2021 on 17 04 2.CRPILNo.52021corrected.docx(vii) the schedule of court proceedings that the child is either requiredto attend or is entitled to attendthe bail release or detention status of an offender or suspectedoffenderthe rendering of a verdict after trial and(x) the sentence imposed on an offender.”CODE OF CRIMINAL PROCEDURE“439. Special powers of High Court or Court of Session regarding bail(1) A High Court or Court of Session may direct—(a)that any person accused of an offence and in custody bereleased on bail and if the offence is of the nature specified inSub Sectionof section 437 may impose any conditionwhich it considers necessary for the purposes mentioned inthat Sub Section of section 376 or section 376AB or section376DA or section 376DB of the Indian Penal Code give notice of theapplication for bail to the Public Prosecutor within a period of fifteendays from the date of receipt of the notice of such application.(1A) The presence of the informant or any person authorised byhim shall be obligatory at the time of hearing of the application forbail to the person under sub sectionof section 376 or section376AB or section 376DA or section 376DB of the Indian Penal Code.(2) A High Court or Court of Session may direct that any person whohas been released on bail under this Chapter be arrested and commithim to custody.”Prashant Rane Judgment is corrected as per speaking to the minutes of the order dt.9 4 202111 on 15 04 2021 on 17 04 2.CRPILNo.52021corrected.docx12.The POCSO Act is a special legislation enacted by theParliament with an object to provide a statutory shield to protectchildren from the offences of sexual assault sexual harassment andpornography and provide for establishment of Special Courts for trial ofsuch offences. The scheme of this legislation is clear from the differentChapters and its contents. Chapter II deals with sexual offences againstchildren which are differently categorized and for punishment of suchoffences. Chapter III provides for using child for pornographicpurposes and punishment therefor. Chapter IV deals with abetment andattempt to commit an offence. Chapter V provides for the procedure forreporting of cases. Chapter VI contains the provisions in relation toprocedures for recording statement of the child. Chapter VII providesfor Special Courts to be designated for providing speedy trial foroffences falling under such legislation provisions on presumption as tocertain offences presumption of culpable mental state as alsoapplication of the Cr.P.C. to the proceedings before a Special Court.Chapter VIII provides for the procedure and powers of Special Courtsand recording of evidence. Chapter IX provides for miscellaneousprovisions as to guidelines for child to take assistance of experts etc.(Section 39) right to child to take assistance of legal practitioner(Section 40).Prashant Rane Judgment is corrected as per speaking to the minutes of the order dt.9 4 202112 on 15 04 2021 on 17 04 2.CRPILNo.52021corrected.docx13.On a perusal of the scheme of the said legislation it is clearthat a robust mechanism recognizing the need to protect children fromthe offences falling within the purview of this legislation and themethod and manner to deal judicially such offences is prescribed as apart of the administration of criminal justice.14.Section 40 of the POSCO Act falling under Chapter IXtitled “Miscellaneous Provisions” confers a right upon a child to takeassistance of a legal practitioner. It provides that the family or theguardian of the child shall be entitled to the assistance of a legalcounsel “of their choice” for any offence under this Act and as per theproviso if the family or the guardian of the child are unable to afford alegal counsel “the Legal Services Authority” shall provide a lawyer tothem. From a bare reading of Section 40 it is limpid that it mandatesentitlement interalia conferred on the family or the guardian of thechild of the assistance of legal Counsel of their choice in regard to anyoffences under the Act and if the family or the guardian of the child areunable to afford a legal counsel of their choice it is mandatory and anobligation of the ‘Legal Service Authority’ to provide a lawyer to themfrom its panel. Such mandate of Section 40 is made procedurallyeffective by framing of Rule 4(13) 4(14) and 4(15) of the POSCORules. Sub ruleprovides that it shall be the responsibility of thePrashant Rane Judgment is corrected as per speaking to the minutes of the order dt.9 4 202113 on 15 04 2021 on 17 04 2.CRPILNo.52021corrected.docxSJPU or the local police to keep the child and child’s parent or guardianetc. informed about the developments including the arrest of theaccused applications filed and other court proceedings. Sub ruleofRule 4 postulates information to be provided by the SJPU local police or support person interalia to the child and child’s parents or guardiansand which includes information as described under Clauseto[(by Act218) with effect from 21 April 2019] stipulating that “thepresence of the informant or any person authorised by him shall beobligatory at the time of hearing of the application for bail to theperson under sub sectionof section 376 or section 376AB or section376DA or section 376DB of the Indian Penal Code." It needs to be notedthat such provisions of the Indian Penal Code referring to sub section(1A) of Section 439 of the Cr.P.C. are in relation to the offences undersub sectionof Section 376 or Section 376AB or Section 376DA orSection 376DB of the IPC which relate to children. We thus findourselves in agreement with the contention of the petitioner that akin tothe offences which fall under the Indian Penal Code as set out in sub sectionof Section 439 of Cr.P.C. with respect to applications forbail under the POCSO Act the presence of the informant or any personauthorised by him shall be made obligatory at the time of hearing of theapplication for bail. This would certainly be in consonance with theobject of Section 40 of the POCSO Act read with Rule 4(13) and 4(15)of the POCSO Rules. To such extent we also find ourselves inagreement with the directions of the Delhi High Court in its orders asnoted above.Prashant Rane Judgment is corrected as per speaking to the minutes of the order dt.9 4 202116 on 15 04 2021 on 17 04 2.CRPILNo.52021corrected.docx18.It would be apposite to refer to the decision of the SupremeCourt in Eera Through Dr.Manjula Krippendorf Vs. Stateand 4(15) of the POCSO Rules recognize a statutoryentitlement to the assistance of and representation by legal counsel forthe family or the guardian of the child and entitlement to be presentand to participate in proceedings in accordance with the said provision.As a necessary corollary there is also an entitlement of such persons tobe made aware of the filing of applications and the hearings scheduledPrashant Rane Judgment is corrected as per speaking to the minutes of the order dt.9 4 202118 on 15 04 2021 on 17 04 2.CRPILNo.52021corrected.docxon such applications at the various stages of the proceedings. We areaccordingly inclined to dispose of the petition with the followingdirections:376 AB 376 DA or 376 DB ofthe Indian Penal Code the notice to the victim shall be issued underSection 439(1 A) read with Rule 4(13) and 4(15).(vii)This order shall be brought to the notice of all the SessionsJudges and Special Court Judges in the State of Maharashtra.Prashant Rane Judgment is corrected as per speaking to the minutes of the order dt.9 4 202120 on 15 04 2021 on 17 04 2.CRPILNo.52021corrected.docx21.A copy of this order be forwarded to the Director Generalof Police the Director of Prosecution State of Maharashtra and theSuperintendent of Police of each of the districts in the State ofMaharashtra so that all the concerned police personnel dealing withsuch offences are appraised of the directions for effectiveimplementation of the POCSO Act and the Rules as noted above. It bealso forwarded to the Member Secretary Maharashtra State LegalServices Authority who shall forward the same to the Secretary of eachDistrict Legal Services Authority within the State.22.Disposed of in the aforesaid terms. No costs.(G. S. KULKARNI J.) (CHIEF JUSTICE)Prashant Rane Judgment is corrected as per speaking to the minutes of the order dt.9 4 202121

The Object of Bail is Neither Punitive nor Preventative but to Secure the Appearance of the Accused Person at his Trial: High Court of Shimla

The object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused, bail is not to be withheld as a punishment. This honorable judgement was passed by High Court of Shimla in the case of Pankaj and Ranjeet v. State of Himachal Pradesh [Cr.MP(M) Nos. 462 and 463 of 2021] by The Hon’ble Mr. Justice Sandeep Sharma. The petition was filed by petitioner under Section 439 of Cr.PC, for grant of regular bail in case FIR No. 10 of 2021 dated 10.2.2021, under Sections 452, 342, 436, 307, 506, 201 read with Section 34 of IPC, registered at P.S. Kotkhai, District Shimla, H.P. . The Record/status filed by the respondent-State, reveals that on 10.2.2021, got her statement recorded under Section 154 Cr.PC, at PS Kothkai, H.P., stating therein that she had been working as part time sweeper at PNB, Kotkhai since 2013 and had been residing in room taken on rent in the building along with her son and daughter. She alleged that her husband, and they after having their meals had gone to sleep, but at 3:30am, she noticed fire on the door of her room and heard the noise of footsteps of some persons and as such, she cried and made all other family members wake up. Complainant disclosed to the police that her husband made them to evacuate from house from the ventilator of toilet. In the aforesaid incident, complainant and other family members suffered burn injuries. She claimed before the police that she has suspicion that persons made an attempt to kill her by setting her room on fire, and since then, they are behind the bars. Though investigation was almost that both the petitioners in connivance with each other, made an attempt to set the house of the petitioner on fire. The council referred the case of Dataram Singh vs. State of Uttar Pradesh & Anr., thereby that a person is believed to be innocent until found guilty. Further it was held that while considering prayer for grant of bail, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not in the case of Sanjay Chandra versus Central Bureau of Investigation (2012) and Prasanta Kumar Sarkar v. Ashis Chatterjee and Another (2010). The Hon’ble Apex Court opinioned that, ‘one is deemed to be innocent till the time, guilt of his/her is not proved in accordance with law. In the case at hand, guilt if any of the bail petitioners is yet to be established on record by the Investigating Agency by leading cogent and convincing evidence and as such, their freedom cannot be curtailed for an indefinite period during trial.’

Hig h C o urt of H.P on 22 03 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr.MP(M) Nos. 462 and 463 of 2021 Decided on: 22.3.2021 __________________________________________________________________ 1. Cr.MP(M) No.4620 Pankaj …..Petitioner Versus State of Himachal Pradesh ….Respondent __________________________________________________________________ 2. Cr.MP(M) No.4620 Ranjeet …..Petitioner Versus State of Himachal Pradesh ….Respondent Hon’ble Mr. Justice Sandeep Sharma Judge. Whether approved for reporting 1 Yes. For the Petitioner(s) : Mr. Vivek Chandel Advocate. For the Respondent(s). : Mr. Sudhir Bhatnagar and Mr. Arvind Sharma Additional Advocates General with Mr. Kunal Thakur and Ms. Svaneel Jaswal Deputy Advocates General. ________________________________________________________________ Sandeep Sharma Judgeis an exception. Unfortunately some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society. 3. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case. 4. While so introspecting among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely if an accused is not hiding from Hig h C o urt of H.P on 22 03 HCHP 7the investigating officer or is hiding due to some genuine and expressed fear of being victimised it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a first time offender or has been accused of other offences and if so the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure 1973. 5. To put it shortly a humane attitude is required to be adopted by a judge while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person howsoever poor that person might be the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons leading to social and other problems as noticed by this Court in In Re Inhuman Conditions in 1382 Prisons. 7. Needless to say object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise bail is not to be withheld as a punishment. Otherwise also normal rule is of bail and not jail. Court has to keep in mind nature of accusations nature of evidence in support thereof severity of the punishment which conviction will entail character of the accused circumstances which are peculiar to the accused involved in that crime. 8. The Hon’ble Apex Court in Sanjay Chandra versus Central Bureau of InvestigationSCC 218 The Hon’ble Apex Court has held as under: “ This Court in Sanjay Chandra v. CBI also involving an economic offence of formidable magnitude while dealing with the issue of grant of bail had observed that deprivation of liberty must be considered a punishment unless it is required to ensure that an accused person would stand his trial when called upon and that the courts owe more than verbal respect to the principle that punishment begins after conviction and that every man is deemed to be innocent until duly tried and found guilty. It was underlined that the object of bail is neither punitive or preventive. This Court sounded a caveat that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of a conduct whether an accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him to taste of imprisonment as a lesson. It was enunciated that since the jurisdiction to grant bail to an accused pending trial or in appeal against conviction is discretionary in nature it has to be exercised with care ad caution by balancing the valuable right of liberty of an individual and the interest of the society in general. It Hig h C o urt of H.P on 22 03 HCHP 9was elucidated that the seriousness of the charge is no doubt one of the relevant considerations while examining the application of bail but it was not only the test or the factor and the grant or denial of such privilege is regulated to a large extent by the facts and circumstances of each particular case. That detention in custody of under trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted.” 10. The Hon’ble Apex Court in Prasanta Kumar Sarkar v. Ashis Chatterjee and Another14 SCC 496 has laid down the following principles to be kept in mind while deciding petition for bail:whether there is any prima facie or reasonable ground to believe that the accused had committed the offence nature and gravity of the accusation severity of the punishment in the event of conviction danger of the accused absconding or fleeing if released on bail character behaviour means position and standing of the accused likelihood of the offence being repeated reasonable apprehension of the witnesses being influenced and danger of course of justice being thwarted by grant of bail. 11. In view of the aforesaid discussion as well as law laid down by the Hon’ble Apex Court petitioners have carved out a case for grant of bail accordingly the petitions are allowed and the petitioners are ordered to be enlarged on bail in aforesaid FIR subject to their furnishing personal bond in the sum of Rs. 1 00 000 each with one local surety in the like amount to the satisfaction of learned trial Court with following conditions: a. They shall make themselves available for the purpose of interrogation if so required and regularly attend the trial Court on each and every Hig h C o urt of H.P on 22 03 HCHP 10date of hearing and if prevented by any reason to do so seek exemption from appearance by filing appropriate application b. They shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever c. They shall not make any inducement threat or promises to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or the Police Officer and d. They shall not leave the territory of India without the prior permission of the Court. 12. It is clarified that if the petitioners misuse their liberty or violate any of the conditions imposed upon them the investigating agency shall be free to move this Court for cancellation of the bail. 13. Any observations made hereinabove shall not be construed to be a reflection on the merits of the cases and shall remain confined to the disposal of these applications alone. The bail petitions stand disposed of accordingly. Copy Dasti. 22nd March 2021 manjit Judge

Sale of shares reducing the extent of shareholding is inappropriate: Supreme Court of India

The instance where the sale of shares takes place with the purpose to reduce the extent of control of shareholding is inappropriate. The stage when the applications for modification are preferred by the financial institutions, on the basis of which the order is to be passed and none of the banks present what the consequences of said order would be, it results in the intervening in the matter pending before the court. This assertion was made by the Supreme Court presided by J. Uday Umesh Lalit, J. Indira Banerjee and J. K.M. Joseph in the case of M/S. DAIICHI SANKYO COMPANY LIMITED vs. OSCAR INVESTMENTS LIMITED & ORS. [SPECIAL LEAVE PETITION (CIVIL)NO.20417 OF 2017]. In the present case, while issuing notice in Special Leave Petition, this Court directed that status quo as on the day with regard to the shareholding of Fortis Healthcare Holding Private Limited in Fortis Healthcare Limited is maintained. By next order was clarified that the earlier order was intended to be in respect of ‘both the encumbered and unencumbered shares of Fortis Healthcare Limited held by Fortis Healthcare Holding Private Limited’. Soon thereafter, various banks/financial institutions filed applications seeking modification/clarification submitting inter alia that certain shares of FHL held by FHHPL were already pledged with said banks/financial institutions and that it be directed that the orders would not apply to such encumbered shares. The earlier orders were clarified that the status quo granted would not apply to shares of FHL held by FHHPL which had been encumbered before the interim orders were passed. It was submitted that it was not just a case of creating encumbrance or pledge but, there were instances of sale of shares and the purpose was definitely to reduce the extent of control of FHHPL. He further submitted that at the stage when the applications for modification/ clarification were preferred by the banks and financial institutions, on the basis of which the order was passed by this Court, none of the banks had told this Court what the consequences of said order would be; and that in a matter of a year and-half, the shareholding of FHHPL stood reduced to negligible level.

SLP(C)No.204117 etc M s. Daiichi Sankyo Company Limited vs. Oscar Investments Limited and others 1 IN THE CIVIL APPELLATE INHERENT JURISDICTION SPECIAL LEAVE PETITIONin Fortis Healthcare Limited ‘FHL’ for short) be maintained. By next order dated 31.08.2017 it SLP(C)No.204117 etc M s. Daiichi Sankyo Company Limited vs. Oscar Investments Limited and others 2 was clarified that the earlier order dated 11.08.2017 was intended to be in respect of ‘both the encumbered and unencumbered shares of Fortis Healthcare Limited held by Fortis Healthcare Holding Private Limited’. Soon thereafter various banks financial institutions filed applications seeking modification clarification submitting inter alia that certain shares of FHL held by FHHPL were already pledged with said banks financial institutions and that it be directed that the orders dated 11.08.2017 and 31.08.2017 would not apply to such encumbered shares. For example I.A. No. 897517was filed by Axis Bank Limited stating in para 2 of the application that 1 83 75 000 shares were pledged with it since 2014. Similarly I.A. No 902417was filed by Yes Bank Limited. By order dated 15.02.2018 the earlier orders dated 11.08.2017 and 31.08.2017 were clarified by this Court to mean that the status quo granted would not apply to shares of FHL held by FHHPL which had been encumbered before the interim orders dated 11.08.2017 and 31.08.2017 were passed SLP(C)No.204117 etc M s. Daiichi Sankyo Company Limited vs. Oscar Investments Limited and others 3 Later the order dated 15.11.2019 passed by this Court in Contempt Petition No.2120 of 2018 creditors and availability of the funds would only pare down the debt and increase the value of the shares. Contrary to the aforesaid solemn assurances and undertakings which were repeatedly reiterated to procure orders the shareholding went into a downward spiral as is apparent from the table in paragraph 23. There was a significant decline in the total number of shares held by FHHPL both encumbered and unencumbered which fell down from 27 21 59 955 and 5 29 31 574 in September 2016 to 5 51 484 and 6 01 607 in December 2018. The aforesaid fact with the impact on valuation was never brought to the notice of the Court and was concealed with the knowledge that these facts if brought to the notice would have substantial bearing on the orders that would be passed to protect the interest of the SLP(C)No.204117 etc M s. Daiichi Sankyo Company Limited vs. Oscar Investments Limited and others 4 As a matter of fact the concerned figures showing shareholding patterns including the division between encumbered and unencumbered shares in various quarters were set out in a tabular chart in paragraph 23 of the Order. Said paragraph 23 was as under: “23. FHL is a public company and being a listed company it has to disclose its shareholding patterns to the stock exchange. A chart showing share holding pattern of FHHPL in FHL will show the position of holdings at various stages shareholding of 32 50 91 529 27 21 59 955 5 29 31 574 32 50 91 529 25 22 63 248 7 28 28 281 4. March 7. December 8. March 32 50 91 529 25 19 23 248 7 31 68 281 27 02 41 529 23 18 01 440 3 84 40 089 22 22 11 701 18 38 96 484 3 83 15 217 17 80 26 597 17 53 94 820 26 31 777 17 80 26 597 17 53 94 820 26 31 777 34 20 451 6 89 084 27 31 367 32 82 851 5 51 484 27 31 367 SLP(C)No.204117 etc M s. Daiichi Sankyo Company Limited vs. Oscar Investments Limited and others 5 10. September 11. December 11 53 091 5 51 484 6 01 607 11 53 091 5 51 484 6 01 607 It is true that we have to decide whether there is any disobedience of the orders of this Court but while doing so we will make reference to the proceedings before the Delhi High Court and the above chart to show how both sets of respondents have violated the orders of the courts. As pointed above on 19.06.2017 learned counsel for OIL and RHC had made a statement before the Delhi High Court that the status of unencumbered assets as disclosed to the court would not be changed and the shareholding as disclosed in terms of order dated 06.03.2017 shall not be affected. When the petitioner felt that this order is not being complied with it filed contempt petition in the Delhi High Court. Within two days another order was passed by the Delhi High Court on the basis of the undertaking given to it.” The observations in paragraphs 34 to 38 of the Order indicate that the number of unencumbered shares held by FHHPL steadily declined and that ‘the contemnors knowingly and willingly lost control of Fortis Healthcare Limitednot only the total number of shares started dwindling but the number of unencumbered shares went down from 7 31 68 281 to 6 01 607 as stated in the chart. Mr. Dwivedi then referred to the affidavit dated 08.02.2017 filed on behalf of all the respondents in the High Court of Delhi which held out that the value of unencumbered shares was more than Rs.4 000 crores and that the value of the unencumbered security was sufficient in the event the award was to be enforced. The relevant paragraphs of said affidavit were as under: SLP(C)No.204117 etc M s. Daiichi Sankyo Company Limited vs. Oscar Investments Limited and others 9 “2. That vide order dated 23.1.2017 this Hon’ble Court had directed an affidavit to be filed by anyone of the Respondents on behalf of all the Respondents in respect of the unencumbered assets held by the Respondents in support of the assurance given to the Court as recorded in the letter dated Therefore in furtherance of the Order dated 23.1.2017 I am filing the present affidavit on behalf of Respondent No 19 and all other Respondents All the Respondents had submitted their respective affidavits disclosing their assets on 6.12.2016 to this Hon’ble Court. The aggregate book value of investments held by all the Respondentsas per the said Affidavits is Rs.10 217.10 Crores out of which investments to the tune of Rs.1 409.93 crores are encumbered leaving the residual investments to the tune of Rs.8 807.18 Crore as unencumbered. Further as on 31.12.2016 the book value of investments held only by RHC Holding Private Limited as on 31.12.2016 is Rs.6 510.54 Crores out of which investments to the tune of Rs.1 513.86 Crores are encumbered leaving the residual investments to the tune of Rs.4 996.68 Crores as Respondent No.19 has also undertaken an internal valuation of its unencumbered investments as on 31.12.2016 mentioned in para above and based on such internal valuations the estimatedfair value of its unencumbered investments as on 31.12.2016 is approximately Rs.3 453 Crores. Apart from the aforesaid investments Respondent No.19 has also extended loans and advancesand after netting off the loans raised on current assets the amount of loans and advances recoverable is Rs.252.59 Crores as on 31.12.2016 which is over and above the aforesaid investments SLP(C)No.204117 etc M s. Daiichi Sankyo Company Limited vs. Oscar Investments Limited and others 10 There is no intention of selling any of the unencumbered investments by way of shares held by Respondent No.19. A proposal which is under discussion may involve the sale of 29 00 000 equity shares of SRL Limited held by Respondent No.19 and 7.05 000 equity shares of SRL Limited held by Malav Holding Private Limitedto external investors in the near future. These shares of SRL Limited are encumbered and thus not included in the value of unencumbered assets mentioned at paras&above. Obviously this will have to be after obtaining the consents of the security holders. The proceeds of such sale will have to be utilized to pare down the debt the net assets of the Respondents will thus remain unchanged. The shares being sold which are below 5% of the share capital of SRL will be sold to an external investor. The further proposal under consideration is to merge SRL with another listed group company at a later point of time. Even if this does take place this will have no implications on the next assets of the Respondents There are proposals to issue further capital in the downstream companiesdoes not include value of 5 crore equity shares of Fortis Healthcare Limited held by the underlying subsidiary of the Respondents which have been kept aside from the aforesaid valuation for the sake of flexibility and debt repayments of various group entities.” SLP(C)No.204117 etc M s. Daiichi Sankyo Company Limited vs. Oscar Investments Limited and others 11 It was therefore submitted that it was not just a case of creating encumbrance or pledge but there were instances of sale of shares and the purpose was definitely to reduce the extent of control of FHHPL He further submitted that at the stage when the applications for modification clarification were preferred by the banks and financial institutions on the basis of which the order dated 25.02.2018 was passed by this Court none of the banks had told this Court what the consequences of said order would be and that in a matter of a year and half the shareholding of FHHPL stood reduced to negligible level 13. Mr. Arvind P. Datar learned Senior Advocate added that there would normally be a basic arrangement or loan agreement in terms of which various kinds of securities including charge over properties corporate and personal guarantees would be offered and that a pledge of shares would only be by way of an additional security. None of the banks financial institutions had indicated why the unencumbered shares were sought to be put under encumbrance or the shares were sold when other forms of securities were available. He further submitted that the arrangements under which the shares were pledged SLP(C)No.204117 etc M s. Daiichi Sankyo Company Limited vs. Oscar Investments Limited and others 12 must be disclosed so that the purpose for which the basic accommodation or loan was obtained would also be clear. For example according to him in November 2016 a loan agreement was entered into between India Bulls and RHC Holding Private Limited for an amount of Rs.350 crores purportedly for ‘construction development of residential projects’. He submitted that no such project had come up and the amount of Rs.350 crores through successive transactions was siphoned away. What kind of due diligence was undertaken by the banks financial institutions while extending the loan facility must therefore be brought on record 14. Both the learned Senior Counsel submitted that with various orders passed by the High Court and this Court the concerned individuals and corporate entities could not sell the shares held by FHHPL directly and therefore a device was employed and the arrangement was so structured that the shares were proceeded against by the banks and financial institutions. It was submitted that the banks financial institutions had intervened in the matters pending before this Court that they were definitely aware of the Award granted SLP(C)No.204117 etc M s. Daiichi Sankyo Company Limited vs. Oscar Investments Limited and others 13 in favour of M s. Daiichi Sankyo Company Limited and that the role of banks and financial institutions would therefore require closer and financial institutions : In the premises for the present we direct all the noticee banks to place on record the basic documents pertaining to loans advanced or financial accommodations extended in respect of which the shares of FHL were pledged with them to place on record the nature of securities offered in connection with such loan arrangements to place on record the details of the encumbered and unencumbered shares of FHL standing in the name of FHHPL held by them in September 2016 to place on record the details of encumbered and unencumbered shares of FHL standing in the name of FHHPL held by them on 11.08.2017 SLP(C)No.204117 etc M s. Daiichi Sankyo Company Limited vs. Oscar Investments Limited and others 14 to give details of shares of FHL standing in the name of FHHPL which were put by them under encumbrance to give details of shares of FHL standing in the name of FHHPL sold by banks financial institutions from after 11.08.2017 January 2017 to disclose whether such encumbrance created after 11.08.2017 was in pursuance of any fresh arrangement or agreement and if so the details of such to disclose whether under such agreement arrangement any other security was given by the pledgors and to give the value of the encumbered shares as they stood in September 2016 on 11.08.2017 and on SLP(C)No.204117 etc M s. Daiichi Sankyo Company Limited vs. Oscar Investments Limited and others 15 16. The appropriate responses shall be filed by all the noticee banks and financial institutions on or before 22.02.2021 17. List these matters for further consideration on 24.02.2021 Uday Umesh Lalit New Delhi February 18 2021

The State authorities shall further not pursue the impugned orders under Section 188 against the proprietor: High Court Of Sikkim

It was directed that the State Authorities shall not pursue the impugned orders. The Hon’ble High Court of Sikkim before the Hon’ble Mr. Justice Bhaskar Raj Pradhan in the matter of  Krishna Kumari Chettri vs. State of Sikkim[W.P. (Crl.) No.01 of 2020].  It appears a writ petition against the State-respondents was filed by the petitioner. An impugned order dated 23.05.2020 aggrieved the petitioner which was issued under the respondent’s signature. It was alleged that the petitioner who runs Body Vibes Gym, Rangpo Bazar, violated prohibitory orders and directives and was non-compliance with the Standard Operating Procedure for social distancing. The execution of powers under Section 51(b) of the Disaster Management Act, 2005 (the Act) read with Section 3 (b) of the Sikkim Public Health and Safety (Covid-19) Regulations, 2020 directed the sealing of the said premise, was directed under the impugned order.  On 17 September 2020, the court heard the petitioner, and the impugned order dated 23 May 2020 was stayed. Thereby, the said gym was opened and continued its activities. The Hon’ble High Court of Sikkim held “… Taking cognizance of the categorical statement of the learned Additional Advocate General this court directs that the State authorities shall not pursue the impugned orders and close the files relating to them as well as FIR No. 20 of 2020 lodged on 20.06.2020 under Section 188 IPC against the proprietor of Body Vibes Gym, Rangpo Bazar at the Rangpo police station. The writ petition stands disposed accordingly.” 

THE HIGH COURT OF SIKKIM : GANGTOK Criminal Extraordinary Jurisdiction) SINGLE BENCH: THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN JUDGE W.P.No.020 1. Krishna Kumari Chettri W o Bishnu Lall Chettri R o Rorathang Bazar East Sikkim. 2. Sanjay Chettri S o Bishnu Lall Chettri R o Rorathang Bazar East Sikkim. 1. State of Sikkim ….. Petitioners Represented by and through The Chief Secretary Government of Sikkim Gangtok East Sikkim. 2. District CollectorChairperson District Disaster Management Authority District Collectorate Office Gangtok East Sikkim. 3. Sub Divisional Magistrate Government of Sikkim Rangpo East Sikkim. 4. The Station House Officer Rangpo Police Station Rangpo East Sikkim. Application under Article 226 227 of the Constitution of Mr. Sabyasachi Chatterjee Advocate and Mr. Navin Kiran Pradhan Advocate Petitioners. 2 W.P.No. 020 Krishna Kumari Chettri & Anr. v. State of Sikkim & Ors. Dr.Doma T. Bhutia Additional Advocate General Mr. S.K. Chettri Government Advocate and Ms. Pema Bhutia Assistant Government Advocate for the State respondents. Date: 27.09.2021 O R D E RBhaskar Raj Pradhan J. The petitioners has preferred the present writ petition against the State respondents seeking various reliefs. They were aggrieved by the impugned order dated 23.05.2020 issued under the signature of the respondent no.2 alleging violation of prohibitory orders and directives and non compliance of the Standard Operating Procedure for social distancing in the Body Vibes Gym Rangpo Bazar run by the petitioners. The impugned order in purported exercise of the powers conferred under Section 51(b) of the Disaster Management Act 2005read with Section 3 of the Sikkim Public Health and Safety Regulations 2020 directed the sealing of the said premise. 2. On 17.06.2020 the respondent no.2 issued another impugned order under Section 51 of the Act directing the respondent no.3 to register a case against the Body Vibes Gym as per the provisions of Section 51(b) of the Act. 3 W.P.No. 020 Krishna Kumari Chettri & Anr. v. State of Sikkim & Ors. Pursuant thereto First Information Report No. 20 of 20 dated 20.06.2020 was registered at the Rangpo police station under Section 188 of the Indian Penal Code 1860 IPC). Both these orders as well as the FIR have been challenged in the present writ petition. 3. On 17.09.2020 I.A. No. 01 of 2020 preferred by the petitioners was heard by this court. Pursuant thereto the impugned order dated 23.05.2020 was stayed. On so doing Body Vibes Gym was de sealed and it started its activities. 4. At the outset the learned Additional Advocate General fairly submits that due to the change in the present COVID 19 situation and the lockdown conditions being lifted the running of the Body Vibes Gym is no longer an issue. She further submits that the State authorities are not pursuing the impugned orders and the FIR against the proprietor of the Body Vibes Gym of the Rangpo Bazar. In view of the assurance given by the learned Additional Advocate General Mr. Sabyasachi Chatterjee learned counsel for the petitioners submits that there is no need to pursue the writ petition further. Taking cognizance of the categorical statement of the learned Additional Advocate General this court directs that the State authorities shall not pursue the impugned orders 4 W.P.No. 020 Krishna Kumari Chettri & Anr. v. State of Sikkim & Ors. and close the files relating to them as well as FIR No. 20 of 2020 lodged on 20.06.2020 under Section 188 IPC against the proprietor of Body Vibes Gym Rangpo Bazar at the Rangpo police station. The writ petition stands disposed accordingly. Judge Approved for reporting : Yes : Yes Internet

Miscellaneous First Appeal filed for the enhancement of compensation Allowed: Karnataka High Court

Miscellaneous first appeal is filed by appellant- claimant for the enhancement in compensation from 1,69,000 to 2,04,000 so that he can recover the whole amount which was spent on medical, nourishment, food , amenities and happiness which was approved by High court of Karnataka through the learned bench led by the HON’BLE MR.JUSTICE P.N. DESAI in the case of SRI. SHREYAS vs THE ORIENTAL INSURANCE CO. LTD., ( MISCELLANEOUS FIRST APPEAL NO.6349 OF 2012)(Moter vehicle Act) on 22nd December 2021 Brief facts of the case are that the appeal arose out of judgment and award dated 05.09.2011 passed by the Tribunal , wherein the Tribunal has awarded a sum of Rs.1,69,000/- as a compensation for the injuries suffered by the claimant. On 01.01.2008 at about 7.00 a.m., the appellant was traveling along with his Friend in a car bearing registration No.KA-41-M-166 on B.M. Road, near Ramohalli Cross. At that time, the Driver of the lorry bearing registration No.KA-11-1155 came with high speed in a rash and negligent manner in Wrong direction towards car, due to which driver of the Car lost his control and dashed to the front wheel of the Lorry, as a result of which, the claimant sustained Injuries. The appellant was immediately shifted to Shreya Hospital and then to Wockard hospital and spent Huge amount. It was contended that he was studying in 2nd semester diploma at the time of accident and so he filed the claim petition claiming compensation. The petitioner got himself examined as PW1 And got examined Dr. S. Ramachandra as PW4. In connected claim petition, the claimant also got examined and totally fourteen documents were marked. Respondents have not led any evidence. After hearing both sides, the tribunal awarded the compensation of Rs.1,69,000/- with interest at 6% per annum, which is challenged in this case. The appellant’s counsel contended that though the petitioner has suffered injuries which are Grievous in nature, the Tribunal has awarded only a sum of Rs.25,000/- towards ‘pain and suffering’ which is on very lower side. It is contended that no compensation is awarded under the head ‘future medical expenses’. The appellant is having difficulty in pertaining his day to day activities. So, the compensation awarded under the head loss of amenities and happiness’ is also on the lower side. The Tribunal has not properly awarded any compensation for loss of income due to disability. Therefore, the amount awarded is on the lower side and needs to be enhanced. On the other hand, the learned counsel appearing for the Insurance Company contended that the award passed by the Tribunal is just and proper. The Tribunal has awarded the compensation after appreciating the oral and documentary material on record, which is just and proper and needs no Interference. Hence, sought to dismiss the appeal. Learned council for appellant have perused the appeal memorandum, judgment and award and the entire records of the case. The accident occurred due to rash and negligent driving of the offending vehicle and claimant sustained injuries is not disputed and proved by the claimant. As far as the award of compensation is considered. It is evident from Ex.P5 wound certificate that the claimant has sustained following injuries: such as head injury with diffuse axonal injury with small speck of contusion in the high frontal region with cerebra oedema and right side pneumothrorax .The doctor has opined that both injuries are grievous in nature. It is also evident that he was hospitalized for ten days and spent more than one lakh rupees for his treatment which can be seen in medical bill. Looking into the injuries sustained by claimant, a claimant should be awarded Rs 35000 for pain and suffering instead of Rs 25000. Regarding loss of amenities and happiness, the Tribunal has awarded only a sum of Rs.15,000/-, Which is on the lower side. He was a student studying in 2nd semester Diploma, at the time of the accident. Though the Tribunal has observed considering the Evidence of PW4 that he is finding difficulty in his day to Day activities, only a sum of Rs.15,000/- is awarded by the Tribunal under the head ‘loss of amenities and happiness’, which needs to be enhanced to Rs.30,000/- instead of Rs.15,000/-, awarded by the Tribunal. It is evident that he was in hospital for 10 Days and he required treatment, food and nourishment and also other incidental expenses like traveling etc., The Tribunal has not awarded any compensation towards food and nourishment charges. A sum of Rs.10,000/- is awarded under the separate head. The amount awarded Under the head medical expenses is as per the bills Produced and the same needs no interference. As far as the permanent disability is concerned, the Tribunal has rightly awarded a sum of Rs.25,000/-. Therefore, no interference is called for. In all, the appellant is entitled for an enhanced Compensation of Rs.2,04,000/- as against Rs.1,69,000/- awarded by the Tribunal. After hearing both the counsels and records and evidence produced by the learned council before the honourable court . The court allowed of enhancement of compensation Rs 2,04,000 against Rs 1,69,000 and directed the respondent party to give the differentiated amount to the claimant . Click here to read the judgement Judgement Reviewed by Sugam Anand Mishra

IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT GULBARGA ON THIS THE 06th DAY OF DECEMBER 2012 THE HON’BLE MR.JUSTICE RAVI MALIMATH MISCELLANEOUS FIRST APPEAL NO.30075 OF 2009 C W 30074 2009OF MV ACT AGAINST THE JUDGMENT AND AWARD DT:21.07.2008 PASSED IN MVC NO.51 2007 ON THE FILE OF THE II ADDL CIVIL JUDGE GULBARGA PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION OF RS.27 500 IN MFA 30074 2009 THE ORIENTAL INSURANCE CO LTD N.G. COMPLEX 1ST FLOOR OPP MINI VIDHAN SOUDHA GULBARGA REP BY REGIONAL OFFICE QNO.44 45 LEO SHOPPING COMPLEX RESIDENCY ROAD GULBARGA BY ITS DULY CONSTITUTUED ATTORNEY BY Sri: MANJUNATH LINGALI FOR Sri. VEERESH B PATIL ADVOCATES SRI NAGESH @ NAGINDRAPPA AGE: 19 YEARS S O REVANSIDDAPPA HALACHERI OCC AGRI LABOUR & STUDENT R O. VAJJARGAON TALUK CHINCHOLI 2. HANMANTH AGE: 26 YEARS S O. BASAVARAJ TELI OCC DRIVER R O. CHINCHOLITALUK CHITTAPUR DIST GULBARGA 3. MALLIKARJUN S O. SHARNAPPA BHALKI OCC BUSINESS R O. SULEPETH TALUK CHINCHOLI DIST GULBARGA BY SRI : SANJAY KULKARNI FOR ADV. R1 Sri. RAJU S KORAHALLI ADV. FOR R.3 AND R.3 THIS MFA FILED U S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DT:21.07.2008 PASSED IN MVC NO.50 2007 ON THE FILE OF THE II ADDL CIVIL JUDGE AT GULBARGA PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION & AWARDING RS.38 500 @ 8% P.A. FROM THE DATE OF PETITION TILL THESE APPEALS COMING ON FOR HEARING THIS DAY THE COURT DELIVERED THE FOLLOWING Aggrieved by the Judgment and award passed by the Tribunal the insurer has filed the present appeal questioning the quantum and the liability to satisfy the The Tribunal while considering the claim of the claimant awarded a compensation of Rs.38 500 with interest at the rate of 8% per annum. The amount awarded is a paltry sum. However the learned counsel for the appellant contends that it is a question of liability and hence the quantum awarded should be overlooked A limit of Rs.10 000 has been postulated in terms of Section 173(2) of the Motor Vehicle Act. No appeal would lie where the subject matter in dispute is less than Rs.10 000 . The Act was promulgated in the year 1988. We are presently in the year 2012. If the value of money is to be applied then it is just and proper that the Court should refrain from interfering purely on the question of quantum. In terms of the Act the minimum compensation to be granted would be Rs.50 000 even in cases of a dispute on liability. Hence without going into the question of liability in view of a paltry sum being awarded the appeals require to be rejected Sd JUDGE

If SEBI acts capriciously, then exercise of SEBI may be vitiated under Article 14: Bombay High Court

If SEBI fixes the manner of charging fees in an unreasonable or capricious manner; in such case, its legislative (or executive) exercise may be vitiated by arbitrariness eschewed by Article 14 or unreasonable restriction not being covered under Article 19(6) and thus infringing Article 19(1)(g), held, a division bench of MS Karnik J and SC Gupte J, while adjudicating the matter in Purnartha Investment Advisers Private Limited v. SEBI; [WRIT PETITION (L) NO.638 OF 2021]. The petition challenged constitutional validity and vires of Regulation 3(XII) of the Securities and Exchange Board of India (Investment Advisors) (Amendment) Regulations, 2020 (“Amendment Regulations”), by which Regulation 15A was inserted into the Securities and Exchange Board of India (Investment Advisors) Regulations, 2013 and Circular issued in pursuance thereof, providing for modes of charging fees to their clients by Investment Advisors. The challenge is on the footing of both want of legislative power in SEBI (by delegated authority) to make a provision such as regulation 15A or to issue a Circular such as Circular dated 23.09.2020 and breach of fundamental right of Investment Advisors to carry on a profession of their choice by enacting unreasonable restrictions. In 2013, SEBI issued the Securities and Exchange Board of India (Investment Advisors) Regulations, 2013 for regulating the business of Investment Advisors. On 15.01.2020, SEBI circulated a consultation paper for revision of these original regulations amongst various stakeholders and interested parties. On 23.01.2020, the present Petitioner submitted its response to the consultation paper. On 17.02.2020, after taking into account the response received from various stakeholders to the consultation paper, a proposal was formulated and placed for consideration of the Board. The Board approved the proposal and issued the impugned amendment Regulations on 03.07.2020. The Petitioner challenges the Amendment Regulations to the extent that they introduce Regulation 15A into the original SEBI Regulations of 2013. Regulation 15A provides for fees to be charged by Investment Advisors and is in the following terms: – “15A. Investment Advisor shall be entitled to charge fees for providing investment advice from a client in the manner as specified by the Board.”

on 29 06 2021 on 22 03 1.WPL. 638 21.docBhogaleIN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTIONWRIT PETITIONNO.638 OF 2021 Purnartha Investment Advisers Private Limited.. Petitionervs.Securities and Exchange Board of India & anr... Respondents Mr. Rahul Totala a w Mr. Ashwin Poojari and Mr. Neil Chettiar I b.Ashwin Poojari RT Legal for the Petitioner.Mr. J.J. Bhatt Senior Advocate a w Mr. Omprakash Jha and Ms.Shivani Kumbhojkar I b. The Law Point for Respondent No.1 SEBI.Mr. Anil C. Singh Additional Solicitor General a w Mr. AdityaThakkar and Mr. D.P. Singh for Respondent No.2 UOI. CORAM : S.C. GUPTE & M.S.KARNIK JJ. DATE : 18th JUNE 2021 and for Respondent No.2 Union of India.2.This Petition challenges constitutional validity and vires ofRegulation 3(XII) of the Securities and Exchange Board of India(Investment Advisors)Regulations 2020(“Amendment Regulations”) by which Regulation 15A was insertedinto the Securities and Exchange Board of IndiaRegulations 2013 and Circular issued in pursuancethereof being Circular Reference No.SEBI HO IMD DF1 CIR P 2020 182 dated 23.09.2020 providing for modes of charging fees totheir clients by Investment Advisors. The challenge is on thefooting of both want of legislative power in SEBIto make a provision such as regulation 15A or to issue aCircular such as Circular dated 23.09.2020 and breach offundamental right of Investment Advisors to carry on a professionof their choice by enacting unreasonable restrictions.3.In 2013 SEBI issued the Securities and Exchange Board ofIndiaRegulations 2013 for regulating thebusiness of Investment Advisors. On 15.01.2020 SEBI circulated aconsultation paper for revision of these original regulationsamongst various stakeholders and interested parties. On23.01.2020 the present Petitioner submitted its response to theconsultation paper. On 17.02.2020 after taking into account theresponse received from various stakeholders to the consultationpaper a proposal was formulated and placed for consideration ofthe Board. The Board approved the proposal and issued theimpugned amendment Regulations on 03.07.2020. The Petitionerchallenges the Amendment Regulations to the extent that theyintroduce Regulation 15A into the original SEBI Regulations of2013. Regulation 15A provides for fees to be charged byInvestment Advisors and is in the following terms : 2 Of 25 on 29 06 2021 on 22 03 1.WPL. 638 21.doc“15A. Investment Advisor shall be entitled to charge fees forproviding investment advice from a client in the manner asspecified by the Board.”4.In pursuance of this Regulation SEBI has issued a Circulardated 23.09.2020 titled as “Guidelines for Investment Advisors”inter alia providing for execution of Investment Advisor agreementswith their clients by Investment Advisors containing terms andconditions provided in a Schedule annexed as Annexure A to theCircular. The Circular also prescribes fees in pursuance ofRegulation 15A of the amended Regulations. The Circular providesfor charging of fees by Investment Advisors from their clients ineither of the two modes which are set out below : “Assets under Advicemodea. The maximum fees that may be charged under thismode shall not exceed 2.5 percent of AUA per annum per clientacross all services ofered by IA.b. IA shall be required to demonstrate AUA withsupporting documents like demat statements unit statementsetc. of the client.c. Any portion of AUA held by the client under any pre existing distribution arrangement with any entity shall bededucted from AUA for the purpose of charging fee by the IA.(B)Fixed fee modeThe maximum fees that may be charged under this modeshall not exceed INR 1 25 000 per annum per client across allservices ofered by IA.”3 Of 25 on 29 06 2021 on 22 03 1.WPL. 638 21.docThe Circular also prescribes general conditions applicable toboth modes in the following terms : “(B)General conditions under both modesa. In case “family of client’ is reckoned as a single client the fee as referred above shall be charged per “family ofclient”.b. IA shall charge fees from a client under any one modei.e.oron an annual basis. The change of mode shall beefected only after 12 months of on boarding last change ofmode.c. If agreed by the client IA may charge fees in advance.However such advance shall not exceed fees for 2 quarters.d. In the event of pre mature termination of the IAservices in terms of agreement the client shall be refundedthe fees for unexpired period. However IA may retain amaximum breakage fee of not greater than one quarter fee.”5.The Petitioner claims to be an Investment Advisor having ahuge pan country reputation for its practices with about 7800clients. It is the Petitioner’s case that SEBI has no authority underthe SEBI Act to make regulations concerning fees to be charged byInvestment Advisors such as the Petitioner. Secondly it issubmitted that making of the impugned Regulationand prescribing fees under the Circular of 23.09.2020tantamount to a breach of the Petitioner’s fundamental right topractice a profession or business of its choice. It is submitted thatrestrictions introduced by the Regulation and the Circular amountto unreasonable restrictions on the Petitioner’s business orprofession.4 Of 25 on 29 06 2021 on 22 03 1.WPL. 638 21.doc6.The Securities and Exchange Board of India Act 1992provides for establishment of a Board to protect the interestsof investors in securities and to promote the development of andto regulate the securities market and for matters connectedtherewith or incidental thereto. The Act in Chapter II thereof provides for establishment of the Securities and Exchange Board ofIndiaof Section 11 is in the following terms : “11.Functions of Board.(1) Subject to the provisions of this Act it shall be theduty of the Board to protect the interests of investors insecurities and to promote the development of and to regulatethe securities market by such measures as it thinks fit.”The provisions of sub sectionof Section 11 which we areconcerned with in the present case are as follows : “(2) Without prejudice to the generality of the foregoingprovisions the measures referred to therein may provide for regulating the business in stock exchanges and anyother securities marketsregistering and regulating the working of stockbrokers sub brokers share transfer agents bankers to anissue trustees of trust deeds registrars to an issue merchantbankers underwriters portfolio managers investment advisersand such other intermediaries who may be associated withsecurities markets in any manner ...5 Of 25 on 29 06 2021 on 22 03 1.WPL. 638 21.doc.....(k) levying fees or other charges for carrying out the purposesof this Section.”7.Section 12 of the SEBI Act provides for Registration of variousprofessionals such as stock brokers sub brokers share transferagents etc. including Investment Advisors. It provides for acompulsory certificate of registration to be obtained from the Boardin accordance with the Regulations made under the SEBI Act bythese professionals and intermediaries who may be associated withsecurities market.8.Section 19 of the SEBI Act provides for delegation by theBoard by general or special order in writing to any member officer of the Board such of its powers and functions under that Act(except the powers under Section 29) as may be deemednecessary.9.Section 30 of the SEBI Act provides for the power of theBoard to make regulations with a view to carry out the purposes ofthe Act. Section 30 so far as the same is relevant for our purposes is quoted below : “30. Power to make regulations.(1) The Board may by notification make regulationsconsistent with this Act and the rules made thereunder to carryout the purposes of this Act.6 Of 25 on 29 06 2021 on 22 03 1.WPL. 638 21.doc(2)In particular and without prejudice to the generalityof the foregoing power such regulations may provide for all orany of the following matters namely : ...(d) the conditions subject to which certificate ofregistration is to be issued the amount of fee to be paid forcertificate of registration and the manner of suspension orcancellation of certificate of registration under Section 12.(da) the terms determined by the Board for settlement ofproceedings under sub sectionand the procedure forconducting of settlement proceedings under sub sectionofsection 15JBany other matter which is required to be or may be specified by regulations or in respect of which provision is to bemade by regulations.”10.Section 31 of the SEBI Act requires every regulation madeunder that Act to be laid as soon as after it is made before eachHouse of Parliament while it is in session for a period of thirtydays. If both houses of Parliament agree that any regulation shouldnot be made or should be made in a modified form suchmodification or annulment has to follow. The regulation then hasefect only in such modified form or is of no efect as the case maybe.11.The Securities and Exchange Board of IndiaRegulations 2013 are made by the Board in pursuance ofits powers under sub sectionof Section 30 read with Clauseof Section 11 of the SEBI Act. Regulation 3provides for an application to be made by an Investment Advisorfor grant of certificate of registration under Section 12 of the SEBIAct. Regulation 6 prescribes the contents of such application andeligibility criteria for grant of certificate of registration. Upon theBoard being satisfied about the applicant’s compliance with therequirements specified in Regulation 6 a certificate of registrationis issued in a form provided under the First Schedule to theRegulations subject to such terms and conditions as the Board maydeem fit to the Applicant Investment Advisor. Regulation 15provides for the general responsibility of every Investment Advisor.Clauseof Regulation 15 provides that an “Investment Advisorshall abide by Code of Conduct as specified in Third Schedule”. TheThird Schedule to the Regulations titled as ‘Code of Conduct forInvestment Advisor’ in Clauseprovides for fair and reasonablecharges to be claimed by Investment Advisors from their clients.Clause 6 is in the following terms : “6. Fair and reasonable charges An investment advisor advising a client may charge fees subject to any ceiling as may be specified by the Board if any.The investment advisor shall ensure that fees charged to theclients is fair and reasonable.”12.As noted above Regulation 15A was introduced by theAmendment Regulation of 2020 enjoining Investment Advisors tocharge fees for providing investment advice to their clients in the8 Of 25 on 29 06 2021 on 22 03 1.WPL. 638 21.docmanner specified by the Board. The Circular issued by the Board inpursuance of this regulation provides for two modes of charging offees by Investment Advisors and general conditions to be appliedto both modes. Both modes have a ceiling on fees that may becharged.13.Having regard to this apparatus of law what we have todecide is whether the Board has the requisite authority under theSEBI Act in the first place to make regulations concerningcharging of fees by Investment Advisors from their clients. Thepower of SEBI to do so is said to be sourced from three diferentprovisions of the SEBI Act. Firstly Section 11 provides for powersand functions of the Board which include making of diferentmeasures with a view to protect the interest of investors insecurities and promote the development of and regulate thesecurities market. The provisions of sub sectionof Section 11are in general form they do not admit of any restrictions on thepowers of the Board. Sub sectionof Section 11 which openswith the words “without prejudice to the generality of the foregoingprovisions” then sets out various measures which the Board mayprovide for in accordance with its powers and functions underSection 11. These measures as we have noted above includeregulating the working of various functionaries connected withsecurities market including Investment Advisors. These may alsoinclude provisions for levying fees or other charges for carrying outthe purposes of Section 11.9 Of 25 on 29 06 2021 on 22 03 1.WPL. 638 21.doc14.As a matter of general principles of statutory interpretation statutes delegating power to make rules as observed by theSupreme Court in the case of Academy of NutritionImprovement Vs. Union of India1 follow a standard pattern. Asthe Supreme Court noted the relevant Section would first contain aprovision granting the power to make rules to the delegate ingeneral terms by using the words “to carry out the provisions ofthis Act” or “to carry out the purposes of this Act”. This is usuallyfollowed by another sub section enumerating matters areas inregard to which specific power is delegated by using the words “inparticular and without prejudice to the generality of the foregoingpower such rules may provide for all or any of the followingmatters”. Interpreting these provisions the Supreme Court has in anumber of decisions held that where power is conferred on adelegate to make subordinate legislation in general terms thesubsequent particularisation of matters topics has to be construedas merely illustrative and not limiting the scope of the generalpower.15.In particular reference to Section 11 of the SEBI Act theSupreme Court in the case of Sahara India Real EstateCorporation Limited and Others Vs. Securities andExchange Board of India and another2 has observed asfollows : 1(2011) 8 SCC 2742(2012) 10 SCC 60310 Of 25 on 29 06 2021 on 22 03 1.WPL. 638 21.doc“303.1. Sub sectionof Section 11 of the SEBI Act casts anobligation on SEBI to protect the interest of investors insecurities to promote the development of the securitiesmarket and to regulate the securities market “by suchmeasures as it thinks fit”. It is therefore apparent that themeasures to be adopted by SEBI in carrying out its obligationsare couched in open ended terms having no prearranged limits.In other words the extent of the nature and the manner ofmeasures which can be adopted by SEBI for giving efect to thefunctions assigned to SEBI have been left to the discretion andwisdom of SEBI. It is necessary to record here that theaforesaid power to adopt “such measures as it thinks fit” topromote investors’ interest to promote the development of thesecurities market and to regulate the securities market has notbeen curtailed or whittled down in any manner by any otherprovisions under the SEBI Act as no provision has been givenoverriding efect over sub sectionof Section 11 of the SEBIAct.303.2. Coupled with the clear vesting of the power with SEBIreferred to above sub sectionof Section 11 of the SEBI Actillustratively records the measures which can be adopted bySEBI. For the present controversy reference may be made toclausesandof sub sectionwhich ordain that SEBIwould be at liberty to call for information from or undertakeinspections of or conduct inquiries or audits into “stockexchanges” “mutual funds” and “other persons associatedwith the securities market” “intermediaries” and “self regulatory organisation in the securities market”. The power tocall for information was expressly extended to “banks” “anyother authority or board or corporation” in respect of anytransaction in securities which is under investigation or inquiry(at the hands of SEBI) by adding clauseto sub sectionof Section 11 of the SEBI Act extends to SEBIthe power to inspectof Section 11 referred to above) books registers11 Of 25 on 29 06 2021 on 22 03 1.WPL. 638 21.docor other documents or records “of any listed public company ora public company … which intends to get its securities listed onany recognised stock exchange.”The above observations have been noted with approval bythe Supreme Court in the case of Arun Kumar Agrawal Vs.Union of India and others3.16.Having regard to the general principles of statutoryinterpretation and observations of the Supreme Court in particularreference to Section 11 of the SEBI Act noted above it cannot begainsaid that measures to be adopted by SEBI in carrying out itsobligations of protection of interest of investors in securities andpromotion of development and regulation of securities market being couched in open ended terms have no prearranged limits.The nature and manner of measures which can be adopted bySEBI for giving efect to the functions assigned to it have been leftto the discretion and wisdom of SEBI such discretion not beingcurtailed or whittled down in any manner by any other provision ofthe SEBI Act.17.In any event the power to regulate the working ofInvestment Advisors which is a specific power or function of theBoard under Clauseof sub sectionof Section 11 even if onedisregards the generality of the provisions of sub sectionofSection 11 would surely encompass within itself the power tomake provisions concerning fees to be charged by Investment3(2014) 2 SCC 60912 Of 25 on 29 06 2021 on 22 03 1.WPL. 638 21.docAdvisors from their clients. In particular reference to levying of feesor charges for carrying out the purposes of Section 11 a specialprovision even finds place in Clauseof sub sectionof Section11. We are not basing our analysis however on this provision since it is possible to say that this provision relates to the power ofSEBI to fix fees or charges for it to carry out its functions underSection 11.18.In pursuance of these provisions and in keeping with theirmandate the Regulations of 2013 have been framed by SEBI forregulating the business of Investment Advisors. These regulations which were tabled before both houses of Parliament inter aliaprovide for various conditions for grant of certificate of registration.These conditions include the duty to abide by the provisions of theRegulations on the part of Investment Advisors including the dutyto abide by the Code of Conduct specified in the Regulations. TheCode of Conduct inter alia enjoins upon an Investment Advisoradvising a client to charge fair and reasonable fees subject to anyceiling as may be specified by the Board. Though SEBI had therequisite power to prescribe the manner for charging of fees byInvestment Advisors under the original Regulations it has framedAmendment Regulations inter alia inserting Regulation 15A in theoriginal Regulations which entitles it to specify the manner forcharging of fees by Investment Advisors. Even these AmendmentRegulations were placed before both houses of Parliament andhave become the law of the land. In pursuance of these13 Of 25 on 29 06 2021 on 22 03 1.WPL. 638 21.docRegulations SEBI has issued its Circular of 23.09.2020 inter aliaproviding for two permissible modes of fees to be charged byInvestment Advisors with general conditions applicable to bothmodes. There is ample authority with the board in the premises to prescribe the modes of fees and general conditions applicable tosuch modes.19.The judgment of Petroleum and Natural Gas RegulatoryBoard Vs. Indraprastha Gas Limited and others4 relied uponby learned counsel for the Petitioner is clearly distinguishable onfacts. What was called in question in that case was the tenability ofa judgment of Delhi High Court which had ruled that Petroleumand Natural Gas Regulatory Boardwas notempowered to fix or regulate retail prices at which gas was to besold by entities such as the Petitioner before the Court toconsumers or any component of network tarif or compressioncharge for entities having their own distribution networks. Suchpower was claimed by the Board under the provisions of Section 11of Petroleum and Natural Gas Regulatory Board Act 2006. Underthat Section the Board had the power to regulate by regulationsaccess to common carrier or contract carrier so as to ensure fairtrade and competition amongst entities and for that purposespecify pipeline access code transportation rates for commoncarrier or contract carrier andaccess to city or local naturalgas distribution network so as to ensure fair trade and competition4(2015) 9 SCC 20914 Of 25 on 29 06 2021 on 22 03 1.WPL. 638 21.docamongst entities as per pipeline access codeonly used the word “common carrier” or “contractcarrier” and this did not clothe the Board with the power tocommand any entity to put refect a price as may be determinedby the Board as a part of its bill to a consumer. The Court held thatthe Board accordingly did not have the power to fix tarif charges.The law laid down in this case has nothing to do with the facts ofour case. In our case the Board not only has the general power tomake measures so as to protect the interest of investors insecurities to promote the development of and regulate thesecurities market it has the particular power to regulate theworking of Investment Advisors. Any regulation of working ofInvestment Advisors would as we have noted above clearlyinclude making of provisions for the manner of charging of fees byInvestment Advisors as well as maximum fees that may be chargedby them for their services. The Board thus has the requisitedelegated authority for specifying appropriate measuresconcerning fees to be charged by Investment Advisors.15 Of 25 on 29 06 2021 on 22 03 1.WPL. 638 21.doc20.The case of Narinder S. Chadha and others Vs.Municipal Corporation of Greater Mumbai and others5 citedby learned counsel for the Petitioner is also on an altogetherdiferent point. That case concerned implementation by MunicipalCorporations of various cities of the Cigarettes and other TobaccoProductsAct 2003(“Cigarettes Act”). The conditions of licence issued by MumbaiMunicipal Corporation under Section 394 of the Mumbai MunicipalCorporation Act inter alia prohibited tobacco or tobacco relatedproducts in any form whether in the form of cigarette cigar bidi orotherwise with the aid of a pipe wrapper or any other instrument in the licensed premises. Whereas Section 6 of the Cigarettes Actpermitted sale of cigarettes and other tobacco products except topersons under 18 years of age and in an area within a radius of 100yards of any educational institution the condition of licenceprohibited the sale of cigarettes or other tobacco products inpremises licensed by the Municipal Corporation. The SupremeCourt was of the view that this licence condition would amount toadding another exception to sale of cigarettes or other tobaccoproducts which was in keeping with the provisions of the CigarettesAct. The Court in the premises did not agree with the High Courtwhen it held that all that the Municipal Corporation did in that casewas to follow the provisions of the Cigarettes Act and the Rulesmade thereunder. It was in this backdrop that the Supreme Court5(2014) 15 SCC 68916 Of 25 on 29 06 2021 on 22 03 1.WPL. 638 21.docset aside the judgment of this Court and deleted the particularcondition forming part of the licence issued by the MunicipalCorporation.21.The case of Cellular Operators Association of India andothers Vs. Telecom Regulatory Authority of India andothers6 dealt with Regulations issued by Telecom RegulatoryAuthority of Indiainter alia for ensuring the qualityand standard of service by licensees as may be prescribed by thelicensor or TRAI. The amending regulation which was challengedin that case made every originating service provider who providedcellular mobile telephone services liable to credit the callingconsumer with one rupee for each call drop which took place withinits network upto a maximum of three call drops per day. Thisamendment was made purportedly in exercise of powers conferredon the Board by Section 36 read with Section 11 of the TelecomRegulatory Authority of India Act 1997 and particularly Section11(1)(b)(i) andof that Act. The functions of the Board underClausesandof Section 11(1)(b) were to respectively ensurecompliance of terms and conditions of licence and to lay down thestandards of quality of service to be provided by the serviceproviders and conduct periodical survey of such service so as toprotect the interest of consumers of telecommunication services.The Court was of the view that the impugned Regulation couldhave no reference to these provisions it did not lay down any6(2016) 7 SCC 70317 Of 25 on 29 06 2021 on 22 03 1.WPL. 638 21.docstandard of quality of service to be provided by the serviceprovider and it was not made with a view to ensure compliancewith the terms and conditions of the licence or to lay down anystandard of quality of service that needed compliance. Theimpugned Regulation was thus held to be dehors the abovereferred to provisions of Section 11. It was also held that it not onlydid not carry out the purposes of the Act but was contrary to suchpurposes. In particular the Court observed that in attempting toprotect the interest of consumers of the telecom sector at the costof the interest of service providersthe balance that wassought to be achieved by the Act for orderly growth of the telecomsector had been violated. It was in these premises that the Courtheld the impugned Regulation as not carrying out the purposes ofthe Act and therefore ultra vires. This statement of law by theSupreme Court can have no bearing on the facts of our case wherethere is a specifically delegated power in the Board to regulate thebusiness of Investment Advisors and there is no case of theimpugned Regulation being either dehors or inconsistent with thepurpose of the Act which is to protect the interest of investors and develop and regulate the securities market. Providing forcharging of fair and reasonable fees to their investor clients byInvestment Advisors is but a measure as noted above forprotecting the interest of investors and healthy growth of thesecurities market.18 Of 25 on 29 06 2021 on 22 03 1.WPL. 638 21.doc22.Learned Counsel for the Petitioner argues that a stipulationas to fees being in the nature of a fiscal measure a delegatedauthority can make such stipulation only if its delegation in thatbehalf is specific there is no scope for an implied authority.Learned Counsel relies on the case of Ahmedabad UrbanDevelopment Authority Vs. Sharadkumar JayantikumarPasawalla and ors.7 in support of the proposition advanced.In that case the Ahmedabad Urban Development Authority established under the Gujarat Town Planning and UrbanDevelopment Act 1976had levied adevelopment fee under the regulations impugned in that case. TheGujarat High Court held that the Authority was not vested underthe Town Planning Act with the power to charge any betterment ordevelopment fee. The argument of the Development Authoritybefore the Supreme Court which was the appellant before theCourt was that if the state legislature was competent to imposesuch fees the Development Authority by virtue of delegatedlegislation could also impose betterment fee or development feeand simply because imposition of such fee was not specificallymentioned in the delegating provision it could not be held that theAuthority had no power to do so. The Supreme Court rejected thecontention observing that "in a fiscal matter it will not be proper tohold that even in the absence of express provision a delegatedauthority can impose tax or fee.... such power of imposition of taxand or fee by delegated authority must be very specific and there7(1992) 3 SCC 28519 Of 25 on 29 06 2021 on 22 03 1.WPL. 638 21.docis no scope of implied authority for imposition of such forimposition of such tax or fee". These observations and the lawstated therein have no bearing on the controversy that we areconsidering here. Specification of manner of charging fees byInvestment Advisors and fixation of a ceiling of such fees by SEBI in our case does not amount to imposition of tax or fee it is simplya measure of regulation of the business of Investment Advisors inthe interest of investors and for healthy growth of the securitiesmarket. And as we have noted above power to make suchregulation is specifically delegated to the Board by virtue of Section30 of the SEBI Act read with Section 11 of that Act. 23.Learned Counsel for the Petitioner does not press hisalternative prayer to declare Sections 30(1) and 30(2)(d) of theSEBI Act as ultra vires the Constitution of India being arbitrary unreasonable and violative of Articles 14 19(1)(g) and 300A of theConstitution if these Sections are interpreted to confer delegatepower to cap professional fees charged by Investment Advisors totheir clients. What is instead submitted is that the AmendmentRegulation to the extent it inserts Regulation 15A in the originalRegulations of 2013 is violative of Section 30(1) read with Section30(2)(d) of the SEBI Act. Section 30(1) of the SEBI Act empowersthe Board to make regulations "consistent with this Act and therules made thereunder” so as “to carry out the purposes of thisAct". As an illustrative measure whilst exercising this power theBoard is authorised under Section 30(2)(d) to provide inter alia for20 Of 25 on 29 06 2021 on 22 03 1.WPL. 638 21.docconditions subject to which a certificate of registration underSection 12 is to be issued and suspension or cancellation of suchcertificate. As we have noted above whilst discussing the contoursof Section 11 of the SEBI Act even Section 30(1) is an omnibusprovision conferring wide and sweeping powers on the Board tomake regulations the only restrictions being that such regulationshave to beconsistent with the SEBI Act and the rules and of Section 30 merely provides for illustrative measures whichthe Board may specify whilst making such regulations it does notin any way detract from the wide amplitude of powers conferred onthe Board. In other words SEBI does possess ample power tomake regulations in matters not covered by the illustrativemeasures provided under Section 30(2)so long as such regulations are consistent with the SEBIAct and the rules and carry out the purposes of that Act. As wehave seen above specifying measures for protection of investorsand development and regulation of securities market being theduty of the Board under Section 11 of the SEBI Act and withoutprejudice to the generality of such duty the Board having theexpress power to regulate the working of Investment Advisors(under Sub Sectionof Section 11) which as noted above encompasses measures to provide for the manner of charging offees as well as cap of fees the impugned regulationis clearly within the delegation made in favour of the Boardunder Section 30(1) of the SEBI Act. If charging of fees in21 Of 25 on 29 06 2021 on 22 03 1.WPL. 638 21.docaccordance with the specification of the Board is accordingly madea condition of continued registration under Section 12 of the SEBIAct such condition would be covered by Section 30(2)(d) of theSEBI Act.24.On the subject of violation of Article 19(1)(g) of theConstitution of India it is important to note that the impugnedRegulation as well as the Circular issued by SEBI in pursuancethereof does not in any way prohibit any party from carrying on thebusiness or profession of Investment Advisor. The Regulation andCircular merely put restrictions and reasonable restrictions at that on the general right of businessmen and professionals to carry onthe business or profession of Investment Advisor. Prescribing amode for charging of fees as also the ceiling of fees to be chargedby Investment Advisors amounts to a reasonable restriction atleast in principle in the matter of carrying on the business orprofession of Investment Advisors apart from being an importantmeasure for protection of investors and development andregulation of securities market. In so far as reasonableness of theparticular quantum of ceiling of fees determined by SEBI orconditions laid down for charging of such fees are concerned thereis no material placed on record by the Petitioner to suggest thatthe fees fixed or conditions stipulated are so unreasonable orcapricious as not to admit of Investment Advisors’ freedom topractice their profession or business.22 Of 25 on 29 06 2021 on 22 03 1.WPL. 638 21.doc25.The case of Institute of Chartered Accountants of IndiaVs. K. Bhagvatheeswaran and another8 cited by learnedCounsel for the Petitioner involved restrictions placed by the Unionof India on chartered accountants’ right to practice their profession.These restrictions included the ceiling limit of the number of taxaudit assignments in a financial year permissible to an individualpractitioner or firmas well as a cap on auditfees. A breach of these restrictions was made an instance ofprofessional misconduct. The Madras High Court which decidedthe case was of the view that professions of lawyers charteredaccountants etc. had their own historical conventions traditions customs and practices and placing of restrictions on the number ofcases audits was an unreasonable restriction under 19(6) of theConstitution which was also violative of Article 14. A client theCourt observed must be free to choose his lawyer charteredaccountant and conversely the number of cases audits which canbe accepted by a professional must be left to such professional. Asfor capping of fees and making of any charge above it being madea professional misconduct the Court was of the opinion that therestriction was arbitrary and violative of both Article 14 and Article19(1)(g) such restriction was not in keeping with the conventionsand traditions of the profession. The Court held that what would bethe fee was a matter to be decided by mutual consent of the clientand the professional and parties ought to be left free to decide thesame charging of higher or lower fee could not be regarded as8AIR 2005 Mad 28723 Of 25 on 29 06 2021 on 22 03 1.WPL. 638 21.docprofessional misconduct. In our view the Petitioner herein cannotseek much assistance from this decision. In the first place unlikein that case which did not have any regulatory statutoryframework for fixing of a ceiling of permissible tax audits or fees forsuch audits in our case the SEBI Act makes particular provisionsempowering the Board to regulate the working of InvestmentAdvisors. The profession or business of Investment Advisor is not atraditional profession having its own customs and conventions.Nothing at least has been pointed out to us by learned counsel forthe Petitioner in that behalf. If anything Investment Advice is aprofession business which has come about as an adjunct of thesecurities market the Investment Advisor works because investorsneed professional advice for participating in the afairs of thesecurities market. It is the statutory duty of SEBI to protect suchinvestors and develop and regulate that market inter alia byregulating the working of Investment Advisors. If for performingsuch duty SEBI fixes the manner of charging of fees by InvestmentAdvisors or the maximum permissible fees such fixation per secannot be faulted as being violative of Article 14 or 19(1)(g). It isanother matter if whilst fixing these matters SEBI acts in anunreasonable or capricious manner in such case its legislativeexercise may be vitiated by arbitrariness eschewed byArticle 14 or unreasonable restriction not being covered underArticle 19(6) and thus infringing Article 19(1)(g). That we areafraid has not been the case here.24 Of 25 on 29 06 2021 on 22 03 1.WPL. 638 21.doc26.There is accordingly no merit in the challenge to theimpugned Regulation as well as the impugned Circular prescribingmodes as well as ceiling of fees to be charged by InvestmentAdvisors. 27.In the premises the Petition is dismissed. No order as tocosts.(M.S.KARNIK J.) 25 Of 25

This Court has been entertaining the writ petitions for transfer only in extreme cases where the Airman or his immediate family members are suffering from life threatening disease(s) or are disabled.: Delhi High Court

This Court is of the view that posting of Airman falls within the exclusive purview of Air Force Records Office and Courts are normally reluctant to interfere with the same unless and until the same is contrary to law and/or the facts of the case are ‘so gross’ that they warrant interference by a Court in writ jurisdiction as upheld by the High Court of Delhi through the learned bench led by Justice Manmohan in the case of CPL Sandeep Krishnan UK v. Union of India & Ors. (W.P.(C) 12946/2021 & C.M.NO.40778/2021). The brief facts of the case are that the Present writ petition has been filed challenging the impugned orders dated 26th February 2021 and 28th. In the alternative, Petitioner seeks posting on medical grounds to any other place in the southern region having a moderate climate and requisite paraphernalia at the Military Hospital. In May 2021, Petitioner’s request for posting on medical grounds was declined. Petitioner also seeks directions to the Respondents to grant posting to the Petitioner on Medical Grounds at his hometown i.e., Thiruvananthapuram. Learned counsel for the Petitioner states that the Petitioner was enrolled in the Indian Air Force on 3rd April 2013 as an airman. She states that the Petitioner, while serving with the Air Warrior Drill Team, was severely injured on his left knee during one of the drill practice sessions and soon after he got injured on the right knee as well due to which the Petitioner was diagnosed with “Chondromalacia Patella” and was placed in medical category A4G4(p). She states that subsequently the Petitioner’s trade was changed by the Respondents to Adm. Asst. and he was posted to the Para Troopers Training School, Agra. She points out that the Petitioner was diagnosed with Bronchial Asthma w.e.f January 2020 and was advised to undergo treatment for the same. She states that since no pulmonologist is available at Military Hospital, Agra, the treatment given to the Petitioner by the medical specialist is merely symptomatic and has not led to any improvement in his health. January 2018. After the perusal of the facts and the arguments by the learned Counsel for petitioner, the Hon’ble Court held, “In the present case, this Court finds that the Petitioner is suffering from Bronchial Asthma, which is very common in North India. The alleged disease is not of such a nature that would warrant a transfer in writ jurisdiction. Since in the present case, neither the petitioner nor his immediate family members are suffering from any life threatening disease, the present writ petition along with pending application is dismissed.”

IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(C) 12946 2021 & C.M.NO.40778 2021 CPL SANDEEP KRISHNAN U K Petitioner Through Ms.Ria Gandhi Advocate. UNION OF INDIA & ORS. HON BLE MR. JUSTICE MANMOHAN HON BLE MR. JUSTICE NAVIN CHAWLA MANMOHAN J JUDGMENT Through Mr.Kavindra Gill GP for UOI. Respondents Date of Decision: 17th November 2021 The petition has been heard by way of video conferencing. Present writ petition has been filed challenging the impugned orders dated 26th February 2021 and 28th May 2021 whereby the Petitioner’s request for posting on medical grounds was declined. Petitioner also seeks directions to the Respondents to grant posting to the Petitioner on Medical Grounds at his hometown i.e. Thiruvananthapuram. In the alternative Petitioner seeks posting on medical grounds to any other place in the southern region having a moderate climate and requisite paraphernalia at the Military Hospital. Learned counsel for the Petitioner states that the Petitioner was enrolled in the Indian Air Force on 3rd April 2013 as an Airman. She states that the Petitioner while serving with the Air Warrior Drill Team was W.P.(C) No.12946 2021 Digitally SignedBy:KRISHNA BHOJSigning Date:19.11.202121:08:16Signature Not Verified severely injured on his left knee during one of the drill practice sessions and soon after he got injured on the right knee as well due to which the Petitioner was diagnosed with "Chondromalacia Patella" and was placed in medical category A4G4(p). She states that subsequently the Petitioner’s trade was changed by the Respondents to Adm. Asst. and he was posted to the Para Troopers Training School Agra w.e.f. 15th January 2018. She points out that in the year 2019 the Petitioner began experiencing shortness of breath and due to heavy cold climatic conditions as well as due to dust and other pollutant particles the Petitioner’s breathing issues have aggravated. She points out that the Petitioner was diagnosed with Bronchial Asthma w.e.f January 2020 and was advised to undergo treatment for the same. She states that since no pulmonologist is available at Military Hospital Agra the treatment given to the Petitioner by the medical specialist is merely symptomatic and has not led to any improvement in his health. She also states that the Petitioner applied for a posting on medical grounds to a unit in the southern region with moderate climate conditions vide application dated 15th December 2020 but the same was rejected by the Air Force Records Office citing HRP limitations. She further points out that the Petitioner preferred another application dated 24th March 2021 but to no avail. Having heard learned counsel for the Petitioner this Court is of the view that posting of Airman falls within the exclusive purview of Air Force Records Office and Courts are normally reluctant to interfere with the same unless and until the same is contrary to law and or the facts of the case are W.P.(C) No.12946 2021 Digitally SignedBy:KRISHNA BHOJSigning Date:19.11.202121:08:16Signature Not Verified ‘so gross’ that they warrant interference by a Court in writ jurisdiction. It is pertinent to mention that this Court has been entertaining the writ petitions for transfer only in extreme cases where the Airman or his immediate family members are suffering from life threatening disease(s) or are disabled. In the present case this Court finds that the Petitioner is suffering from Bronchial Asthma which is very common in North India. The alleged disease is not of such a nature that would warrant a transfer in writ jurisdiction. Since in the present case neither the petitioner nor his immediate family members are suffering from any life threatening disease the present writ petition along with pending application is dismissed. MANMOHAN J NAVIN CHAWLA J NOVEMBER 17 2021 W.P.(C) No.12946 2021 Digitally SignedBy:KRISHNA BHOJSigning Date:19.11.202121:08:16Signature Not Verified

Petitioner is allowed to travel to UAE and Thailand for business purpose subjected to some conditions stated by the Court : High Court of Delhi

Court is inclined to allow the present application and permit the petitioner to travel to UAE and Thailand, with a further direction that he shall return to India on or before April 06, 2022, subject to certain conditions and was held by High Court of Delhi through the learned bench led by HON’BLE MR. JUSTICE V. KAMESWAR RAO in the case of JAYANT NANDA vs. UNION OF INDIA, THROUGH: SECRETARY, MINISTRY OF FINANCE, GOI & ORS. on March 11, 2022. Brief facts of the case are that petitioner intends to travel to UAE from New Delhi on March 04, 2022; from UAE to Thailand on March 14, 2022 staying in Thailand till March 27/28, 2022 when he shall again fly to UAE and return back to New Delhi on April 06, 2022 as he is a Non-Resident since 1989 and his place of residence is Dubai from where he carries his business, which is spread over various countries and he is travelling to Thailand to restart the construction of a hotel / resort on the land owned by his company at a place called Koh Samui, Thailand, which construction was halted due to the COVID-19 pandemic. Learned counsel for Petitioner states that on earlier occasions also this Court has granted permission to the petitioner to travel to UAE and also to UK subject to conditions imposed which the petitioner has scrupulously followed and has always returned back to India. He stated that  the security / surety provided to the Registrar General of this Court, pursuant to earlier orders  continues to be with the Registry of this Court. Learned Senior Counsel appearing for the Income Tax Department states that the request of the petitioner to travel to UAE and Thailand does not deserve any consideration  as the petitioner is under investigation for commission of offences punishable under the Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015. The investigations conducted so far indicate that huge unaccounted income was parked outside India and the same was brought back to Indian companies in the name of either the petitioner or entities owned by the petitioner. There is no dispute that this Court vide order dated May 24, 2021 had permitted the petitioner to travel to UAE for two months subject to fulfilling some conditions which he fulfilled and order dated September 06, 2021 states that the petitioner was able to travel to UAE on August 28, 2021 and returned to India on September 05, 2021. Court is inclined to allow the present application and permit the petitioner to travel to UAE and Thailand, with a further direction that he shall return to India on or before April 06, 2022, subject to the following conditions: The Deputy Director (Investigation) shall duly inform the Immigration Bureau once the aforesaid conditions are met.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: March 11 2022 W.P.(C) 4081 2021 CM No. 10777 2022 JAYANT NANDA Petitioner Through: Mr. R.K. Handoo Mr. Yoginder Handoo and Mr. Ashwin Kataria UNION OF INDIA THROUGH: SECRETARY MINISTRY OF ..... Respondents FINANCE GOI & ORS. Through: Mr. Devesh Dubey Adv. for Mr. Anil Soni CGSC for R 1 UOI Ms.Vibhooti Malhotra Sr. SC with Mr. Shailendra Singh and Mr. Udit Sharma Advs. for R 2 HON BLE MR. JUSTICE V. KAMESWAR RAO V. KAMESWAR RAO J.CM No. 10777 2022This is an application filed by the petitioner with the following prayers: “In view of the submissions made hereinabove it is most respectfully prayed that this Hon ble Court may be pleased W.P.(C) 4081 2021 Page 1 a) Allow the present application and permit the Petitioner to travel to UAE and Thailand from March April 2022 and or b) Pass any other order(s) as this Hon ble Court deems fit and proper and in the interest of justice and equity.” The submission of Mr. R.K. Handoo learned counsel for the petitioner is that the petitioner intends to travel to UAE from New Delhi on March 04 2022 from UAE to Thailand on March 14 2022 staying in Thailand till March 27 28 2022 when he shall again fly to UAE and return back to New Delhi on April 06 2022. It is his submission that the petitioner intends to travel to UAE as he is a Non Resident since 1989 and his place of residence is Dubai from where he carries his business which is spread over various countries and his presence is required for taking various business decisions. He is travelling to Thailand to restart the construction of a hotel resort on the land owned by his company at a place called Koh Samui Thailand which construction was halted due to the COVID 19 pandemic. The submission of Mr. Handoo is that the statement of the petitioner has been recorded by the Income Tax Department. He has submitted all the documents as sought from him. Further no summons are standing as of today against the petitioner. He stated that on earlier occasions also this Court has granted permission to the petitioner to travel to UAE and also to UK subject to conditions imposed W.P.(C) 4081 2021 Page 2 which the petitioner has scrupulously followed and has always returned back to India. That apart his wife and daughter are residents of this country and as such he shall return back to India. He contested the submission advanced by the counsel for the respondent No.2 that the petitioner is not submitting the required documents to the Income Tax Authority by stating that no summons in that regard have been issued. He stated the security surety provided to the Registrar General of this Court pursuant to earlier order(s) continues to be with the Registry of this Court. He prays that as the matter is listed on April 08 2022 for hearing the petitioner shall return back to India on or before April 06 2022. On the other hand Ms.Vibhooti Malhotra learned Senior Standing Counsel appearing for the Income Tax Department would contest the application by stating that the request of the petitioner to travel to UAE and Thailand does not deserve any consideration inasmuch as the petitioner is under investigation for commission of offences punishable under the Black Moneyand Imposition of Tax Act 2015 4081 2021 Page 3 investments outside India in companies owned controlled by Dr. Jyostna Suriand family. She also stated that the petitioner may not have actual business outside India and that he is maintaining residence outside India only to maintain his non resident status in order to avoid tax implications and mandatory reporting of foreign financial assets to the Indian revenue authorities. That apart she highlighted the fact that the petitioner has not fully cooperated with the investigations being conducted by the respondent No.2. In this regard she has drawn my attention to the summons dated February 22 2021 issued upon the petitioner by the answering respondent under the provisions of the Income Tax Act 1961. That apart the petitioner is yet to furnish the complete particulars of the requisitions made in the said summons. Though she does concede during the submissions that no summons are standing against the petitioner as of today. She qualifies the submission by stating that the respondent Authority intends to issue summons to the petitioner for his appearance. It is only pursuant to the order dated May 04 2021 the statement of the petitioner could be recorded under special COVID 19 protocols on May 17 2021 at his residence. However despite repeated assurances the petitioner has not provided the information. Information regarding account of summons replies of references made to financial institutions in UAE UK and other foreign jurisdiction under exchange of information treaties are still awaited. W.P.(C) 4081 2021 Page 4 She submitted in view of the pending information under summons and reference under the exchange of information treaties the petitioner’s presence is likely to be required in investigation pending under the Black Money Act in the coming future and the investigation conducted against Dr. Jyotsna Suri has culminated in a criminal complaint filed by the answering respondent under the aforesaid Act and the same is registered as Ct. Case No.1492 2021 pending consideration before the Court of Additional Chief Metropolitan Magistrate Tis Hazari Courts New Delhi and at this critical juncture the petitioner should not be allowed to travel outside country. She seeks the dismissal of the application. Mr. Devesh Dubey Advocate appearing for Mr.Anil Soni state that respondent Nos.1 3 and 4 are only implementing agencies and have no submissions to put forth in this regard. In rejoinder submissions Mr. Handoo would submit that the stand which has been taken by the respondents is similar to the one which has been taken at earlier occasions as well when this Court had permitted the petitioner to travel to UAE and UK that too after the statement of the petitioner was recorded on May 17 2021 in terms of the order passed by this Court. He reiterated that thereafter no summons have been issued for the presence of the petitioner. Hence it is a fit case where the prayers as made in the application need to be granted. W.P.(C) 4081 2021 Page 5 Having considered the submissions made by the learned counsel for the parties it is noted from the record that the investigation is pending against the petitioner since 2020 and a complaint has been filed against the main accused. The summons were issued to the petitioner on February 22 2021. It is stated by Ms. Malhotra that the petitioner is yet to furnish complete particulars of the requisition as made for in the summons. She does concede that the statement of the petitioner was recorded on May 17 2021 pursuant to the orders of this Court. She also conceded that no summons are pending against the petitioner as of today. She also stated that the department intends to issue summons in future but no specific date has been given by her. There is no dispute that this Court vide order dated May 24 2021 had permitted the petitioner to travel to UAE for two months subject to fulfilling the following conditions: The petitioner shall furnish security by way of an unencumbered property of a value of ₹10 crores or above or a fixed deposit of the same value before the Registrar General of this Court. The petitioner shall furnish liquid security for a sum of ₹1 crore either in the form of a Bank Guarantee or in the form of a Fixed Deposit or in any other liquid form before the Registrar General of this Court. W.P.(C) 4081 2021 Page 6 The petitioner’s sister Dr. Jyotsna Suri shall also stand as a surety and shall execute a surety bond for the petitioner guaranteeing his return to the country within a period of two months from the date of his travel before the Registrar General of this Court. The petitioner shall also submit an undertaking before the Court that he shall return to this country within two months from the date of his departure. The petitioner shall furnish a full itinerary of his stay at the UAE including the places he would be staying in UAE overseas and a functional phone number for all such I note from the order dated September 06 2021 the petitioner was able to travel to UAE on August 28 2021 and returned to India on September 05 2021. Further vide order dated September 27 2021 the petitioner was permitted to travel to UAE and UK for three months subject to the following conditions: Since the petitioner has already complied with the direction nos.1 2 and 3 of the order dated 24.05.2021 he will file an affidavit before this Court undertaking to return to the country within three months from the date of his departure. The petitioner shall also undertake not to operate his bank accounts in UK during his visit. W.P.(C) 4081 2021 Page 7 The petitioner will also furnish the full itinerary of his stay at UAE and UK along with his phone numbers in both UAE and UK which numbers will be kept operational at all times. The affidavit incorporating the aforesaid be filed before this Court at least one week prior to the date of his departure from the country. The paragraph 8 of the order also reads as under: “8. Needless to state upon the petitioner returning to India after the aforesaid period of three months the surety furnished by the petitioner in terms of order dated 24.05.2021 would be duly returned to him or the surety as the case may be.” Learned counsel for the respondents have not stated that the petitioner has misused the permission granted by this Court to the petitioner to visit UAE and UK. If that be so this Court is inclined to allow the present application and permit the petitioner to travel to UAE and Thailand with a further direction that he shall return to India on or before April 06 2022 subject to the following The petitioner shall furnish a security by way of an unencumbered property of a value of ₹10 Crores or more or a fixed deposit of the same value before the Registrar General of this Court. If the property furnished as a security in terms of the order dated May 24 2021 has not W.P.(C) 4081 2021 Page 8 been released to the petitioner or to the person who furnished the same the said property shall be accepted as a security provided a fresh valuation report is called for to ensure the property is valued at ₹10 Crores or more. The petitioner shall also furnish a liquid security for a sum of ₹1 Crore either in the form of a Bank Guarantee or in the form of a Fixed Deposit or in any other liquid form before the Registrar General of this Court. If the liquid security for a sum of ₹1 Crore has been provided by the petitioner in terms of the order dated May 24 2021 has not been returned refunded the same shall be accepted provided the same is in order. The petitioner shall also submit before this Court an undertaking that he shall return to the country on or before April 06 2022. The petitioner’s sister Dr. Jyotsna Suri shall also stand as a surety and shall execute a surety bond for the petitioner guaranteeing his return to the country on or before April 06 2022 before the Registrar General of this The petitioner shall furnish a full itinerary of his stay at UAE and Thailand including the places where he would be staying in at UAE and Thailand along with a functional phone number for all such places including his personal W.P.(C) 4081 2021 Page 9 mobile number which he shall keep operational and functional at all times. Till the petitioner returns to the country on or before April 06 2022 the wife of the petitioner shall not leave the country. The Deputy Director shall duly inform the Immigration Bureau once the aforesaid conditions are met. Needless to say upon the petitioner returning to India in terms of the above order the surety furnished by the petitioner would be duly returned to him or the surety provider as the case may be. This order has been passed in the facts of this case. The application is disposed of. The parties counsels to appear before the Registrar General on March 14 2022 at 12:00 noon for further proceedings. MARCH 11 2022 aky V. KAMESWAR RAO J W.P.(C) 4081 2021 Page 10

Electricity is one of the Fundamental Rights for existence under Article 21 of the Constitution of India: High Court of Delhi

Electricity is one the Fundamental Rights for existence under Article 21 of the Constitution of India, subject to the complementation with other requirements. Therefore, the right to have electricity would not be construed as recognising any tenancy or possessory rights with regard to the subject property. These were stated by the High Court of Delhi, consisting Justice Sanjeev Sachdeva in the case of Ashish Gupta vs. Tata Power Delhi Distribution Limited [W.P.(C) 890/2022] on 14.01.2022. The facts of the case are that the petitioner is a tenant in the subject property in which there are certain disputes between the petitioner and landlord. The petitioner filed a suit for mandatory injunction seeking restoration of electricity connection. However, the said suit was rejected on the ground that there is a suit for possession filed by the landlord against the property and the relief of restoration of electricity could be agitated in the said proceedings. Petitioner seeks a direction to respondent/Tata Power Delhi Distribution Limited (TPDDL) to either restore the electricity supply or install a fresh connection in the property. The learned Counsel for the petitioner contended that it is a settled proposition of law that electricity is one the Fundamental Rights for existence under Article 21 of the Constitution of India, subject to the complementation with other requirements. Further, it was submitted that on vacating the premises or being evicted and surrender of the electricity meter, petitioner shall be entitled to refund of the security deposit subject to adjustment of any dues of the respondent. The learned Counsel for the respondent submitted that respondents have no objection in granting electricity connection in the name of the petitioner, provided the petitioner clears the pending electricity dues, if any, in respect of the above connection and further makes a fresh application for grant of a connection in his name and further subject to payment of additional security deposit over and above the regular security deposit.

IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(C) 890 2022 Judgment delivered on: 14.01.2022 ASHISH GUPTA ….. Petitioner TATA POWER DELHI DISTRIBUTION LIMITED ....Respondent Advocates who appeared in this case: For the Petitioner: Mr. Pankaj Kumar Advocate. For the Respondent: Mr. Manish Srivastava Mr. Akhil Hasija and Mr. Mayank Garg Advocates CORAM: HON’BLE MR. JUSTICE SANJEEV SACHDEVA SANJEEV SACHDEVA J.The hearing was conducted through video conferencing. Petitioner seeks a direction to respondent Tata Power Delhi Distribution Limitedto either restore the electricity supply to CA No.60019111651 or install a fresh connection in the third floor of property number 83 Tagore Park New Delhi 110009. Learned counsel for the petitioner submits that the petitioner is a tenant in the subject property though there are certain disputes W.P.(C) 890 2022 between the petitioner and landlord. Learned counsel submits that the petitioner had filed a suit for mandatory injunction seeking restoration of electricity connection. However the said suit was rejected on the ground that there is a suit for possession filed by the landlord against the property and the relief of restoration of electricity could be agitated in the said proceedings. Issue notice. Notice is accepted by learned counsel for Learned counsel appearing for the respondent TPDDL submits that respondents have no objection in granting electricity connection in the name of the petitioner provided the petitioner clears the pending electricity dues if any in respect of the above connection and further makes a fresh application for grant of a connection in his name and further subject to payment of additional security deposit over and above the regular security deposit. The civil suit filed by the petitioner seeking mandatory injunction for restoration of electricity having been dismissed on the ground of an alternative remedy will not debar him from filing a petition under Article 226 of the Constitution of India as it is a settled proposition of law that electricity is one the Fundamental Rights for existence and protected under Article 21 of the Constitution of India subject to the petitioner complying with other requirements. W.P.(C) 890 2022 following terms: In view of the above this petition is disposed of in the Petitioner shall make an application for grant of a fresh electricity connection in his own name. ii) Respondent shall process petitioner’s application for installation of a fresh electricity connection without insisting on a NOC from the owner. iii) Petitioner shall comply with all the codal and commercial requirements of respondent TPDDL. iv) Petitioner shall also deposit a sum of Rs. 10 000 with the respondent TPDDL in addition to the regular security deposit that the petitioner is required to make under the rules or regulations. time to time. Petitioner shall pay the consumption charges accordance with the bills raised by respondent TPDDL from vi) Petitioner shall not seek adjustment of the security deposit. However on the petitioner vacating the premises or being evicted and surrender of the electricity meter petitioner shall be entitled to refund of the security deposit subject to adjustment of any dues of the respondent. W.P.(C) 890 2022 vii) Respondent shall be entitled to disconnect the electricity supply in case petitioner fails to pay the electricity charges. viii) Application of the petitioner shall be processed and electricity connection shall be installed within two working days of the petitioner completing all the formalities. It is clarified that this order is without prejudice to the rights and contentions of the parties and shall not be construed as recognising any tenancy or possessory rights of the petitioner with regard to the subject property and would be without prejudice to the pending dispute with the landlord. No special equities shall flow in favour of the Petitioner because of this order. 10. The writ petition is disposed of in the above terms. 11. Copy of the Order be uploaded on the High Court website and be also forwarded to learned counsels through email. SANJEEV SACHDEVA J. JANUARY 14 2022 W.P.(C) 890 2022

To be Stricto Sensu there Shouldn’t be any Delay and Laches: High Court of Shimla

The petition cannot be ‘stricto sensu’ said to be within the limitation period provided under Section 21 of the Administrative Tribunals Act as it suffers from delay and laches. This honorable judgement was passed by High Court of Shimla in the case of Japan Singh Versus Chaudhary Sarwan Kumar Himachal Pradesh Krishi Visvavidyalaya, Palampur [CWPOA No.7832 of 2019] by Ms. Jyotsna Rewal Dua, Judge. The Petitioner in this petition seeks regularization as Beldar w.e.f. the date when he completed eight years of service along with all consequential benefits. He was appointed in University as daily paid Labourer in July, 1994. His services were regularized as Beldar w.e.f. 06.07.2008. The grievance of the petitioner is that he was required to be regularized as Beldar w.e.f. 06.07.2002 on completion of eight years of service. The respondent-University had not denied the factual position that the petitioner had completed eight years of regular service as daily paid Labourer and the fact that the services of the petitioner were regularized as Beldar on 06.07.2008. It is against one of these posts that the petitioner was regularized on 06.07.2008. Additionally, the posts of Beldar were not available for regularizing the daily wage employees. 2006 regularization policy of the State Government was circulated on 09.06.2006 in respect of regularization of those daily wagers, who had completed eight years of continuous service as on 31.03.2004 against vacant posts. The record shows that 2006 policy for regularization of daily wage workers, who had completed eight years of continuous service as on 31.03.2004, was adopted by the respondent-University vide notification dated 14.06.2007. The court was opinioned that, “it is evident that the petitioner was not eligible for regularization under the 2000 regularization policy. Petitioner completed eight years of daily wage services as on 31.12.2002. However, the fact remains that he did not fall within the purview of 2000 regularization policy in existence at that time the policy was adopted by the respondent-University vide notification dated 14.06.2007. 169 posts for regularizing the services of daily wage Beldars were created in the respondent-University on 19.06.2008. The petitioner along with other similarly situated daily wage Beldars, 163 in number, was accordingly regularized on 06.07.2008. Petitioner had not been able to demonstrate any discrimination allegedly meted out to him.”

Hig h C o urt of H.P on 03 04 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWPOA No.78319 Decided on: 1st April 2021 Japan Singh …..Petitioner Versus Chaudhary Sarwan Kumar Himachal Pradesh Krishi Visvavidyalaya Palampur …..Respondent Coram Ms. Jyotsna Rewal Dua Judge Whether approved for reporting 1 For the Petitioner: Mr. Y.P.S. Dhaulta and Mr. Bhim Raj Sharma Advocates. For the Respondent: Mr. L.N. Sharma Advocate. Jyotsna Rewal Dua JudgePetitioner seeks regularization as Beldar w.e.f. the date when he completed eight years of service alongwith all consequential benefits. 2. Petitioner was appointed with the respondent University as daily paid Labourer in July 1994. His services were regularized as Beldar w.e.f. 06.07.2008. The grievance of the petitioner is that he was required to be regularized as Beldar w.e.f. 06.07.2002 on completion of eight years of service. The petitioner superannuated on 1 Whether reporters of print and electronic media may be allowed to see the order Hig h C o urt of H.P on 03 04 HCHP 2 31.05.2015. Almost a year later i.e. on 01.05.2016 he filed the instant petition claiming regularization retrospectively w.e.f. 06.07.2002. 3. The respondent University has not denied the factual position that the petitioner had completed eight years of regular service as daily paid Labourer on 31.12.2002 and the fact that the services of the petitioner were regularized as Beldar on 06.07.2008. The stand of the respondent is that the petitioner’s services were regularized on the basis of State Policy dated 09.06.2006 as adopted by the respondent vide notification dated 14.06.2007 pursuant to which the respondent created 169 posts of Beldar on 19.06.2008. It is against one of these posts that the petitioner was regularized on 06.07.2008. Learned counsel for the respondent has further submitted that prior to 2006 State Policy the respondent University had adopted 2000 regularization policy of the State Government. However the petitioner had not completed eight years of service as Labourer by 31.03.2000 the cut off date in the policy. Therefore his services could not be regularized at that time. Additionally the posts of Beldar were not available for regularizing the daily wage Hig h C o urt of H.P on 03 04 HCHP 3 employees. No rejoinder disputing these facts and aspects has been filed by the petitioner. 4. Heard learned counsel for the parties and gone through the record appended with the petition. 5. 2006 regularization policy of the State Government was circulated on 09.06.2006 in respect of regularization of those daily wagers who had completed eight years of continuous service as on 31.03.2004 against vacant posts. The record shows that 2006 policy for regularization of daily wage workers who had completed eight years of continuous service as on 31.03.2004 was adopted by the respondent University vide notification dated 14.06.2007. The relevant portion of the notification is extracted hereunder: “The Board of Management CSK HPKV Palampurhas been pleased to approve the adoption of policy as such contained in letter No.PER(AP) C B(2) 1 2006 Vol.II dated 9th June 2006 from the Secretaryto the Govt. of HP regarding regularization of Daily Waged Contingent Paid Works in the Universityif any also stand disposed of. Jyotsna Rewal Dua Judge April 01 2021 Mukesh

Weak circumstantial evidence, not a ground for bail : SC

The Supreme Court, in a recent judgement, observed that merely because the case of the prosecution rests on weak circumstantial evidence, it is not a ground for the High Court to grant bail to the accused. This was held by a supreme court bench comprising of Justice Mr. Shah and Justice Sanjiv Khanna, in the case concerning Ishwarji Nagaji Mali v State of Gujarat & Another, decided on January 18,2022. The appeal arose from the appellant’s grievance due to the High Court order granting bail to the respondent, accused of criminal conspiracy and murder of the appellants’ daughter. The deceased was hit by a car while she was on a walk along with her husband (the respondent). Later upon investigation, it was discovered that the husband of the deceased and his friend had planned the murder by paying two lacs to swift driver. The evidence to this was the telephonic conversation between the two. Upon this, the respondent was arrested. However, upon filing a bail application, he was released by stating that there was no actual evidence and the case was based upon circumstantial evidence, which is regarded to be weak. The counsel on behalf of the respondent submitted that the decision pf the High Court in granting bail to the accused is not accurate since the High Court has not given any attention to material evidence considering the gravity of the offence. The investigation brought out more details such as financial difficulty faced by the respondent which gave him a cause for the crime, there was a charge-sheet filed and the High Court has not given any substantial evidence while granting bail to the respondent. The precedents set in the following cases were referred to -Gudikanti Narasimhulu & Ors. vs. Public Prosecutor, Prahlad Singh Bhati vs. NCT of Delhi & ORS, Ram Govind Upadhyay vs. Sudarshan Singh, Kalyan Chandra Sarkar vs. Rajesh Ranjan alias Pappu Yadav & Anr., Prasanta Kumar Sarkar vs. Ashis Chaterjee, Neeru Yadav vs. State of UP & Anr and Anil Kumar Yadav vs. State (NCT of Delhi). By stating the above mentioned, precedents the appellant showed how the bail granted was unsustainable both on law and facts. The bench after observing the law, precedents and facts of the preset case quashed the bail granted by the High Court. The Court stated that merely because the case of the prosecution lies on the basis of circumstantial evidence, the bail could not have been granted. The High Court had to look into the seriousness of the matter and not overlook any material fact or evidence. Therefore, the appeal was allowed and the respondent was ordered to surrender to the concerned authorities. Click here to view the judgement Reviewed by Namisha Choudhary.

IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 70 OF 2022 Ishwarji Nagaji Mali State of Gujarat and another JUDGMENT M.R. SHAH J Feeling aggrieved and dissatisfied with the impugned order dated 30.07.2021 passed by the High Court of Gujarat at Ahmedabad in Criminal Miscellaneous Application No. 93921 by which the High Court has directed to release respondent no.2 on bail in connection with FIR registered at C.R. No. I 111950082010520 with Bhildi Police Station for the offences punishable under Sections 302 120(B) 114 304A of the IPC and under Sections 177 184 & 134 of the Motor Vehicles Act the father of the deceased has preferred the The incident in question took place on the morning of 26.12.2020 at 7:00 a.m. when respondent no.2 herein along with his wife Daxaben deceased) left their home in Deesa to visit Hanumanji Temple at Gela village and on their way at around 07:00 a.m. while they were walking the deceased was hit by a speeding four wheelerfrom behind and which immediately fled away. That one Sevantibhai Ranchhodji Tank cousin of respondent no.2 lodged the FIR against unknown persons initially for the offences punishable under Sections 304A IPC and Sections 177 184 & 134 of the Motor Vehicles Act on the basis of the story narrated by respondent no.2 that his wife was accidentally hit by a speeding car when they were walking together 2.1 That during the course of the investigation and considering the statements of the witnesses recorded during the course of the investigation and making analysis of the call details between respondent no.2 and his friend Kirtikumar Kanaji it was revealed that respondent no.2 hatched a criminal conspiracy along with the other co accused to kill his wife by giving Rs. 2 lakhs to the driver of the Swift Car for hitting the deceased from her back and planned to treat the offence as an accident in collusion with each other. An application was made by the Investigating Officer to add the offences punishable under Sections 302 120(B) and 114 of the IPC. By order dated 6.2.2021 the learned Magistrate permitted the Investigating Officer to also add the aforesaid offences against the accused. Thereafter on conclusion of the detailed investigation and after recording the statements of as many as 40 persons witnesses and having obtained the call details between respondent no.2 and the co accused respondent no.2 and other co accused have been charged for the offences punishable under Sections 302 120(B) and 114 of the IPC 2.2 That respondent no.2 filed a regular bail application before the learned Sessions Court. By a detailed order dated 19.05.2021 the learned Additional Sessions Judge Deodar rejected the said bail application. That thereafter respondent no.2 filed a Criminal Miscellaneous Application No. 93921 before the High Court of Gujarat at Ahmedabad under Section 439 Cr.P.C. for regular bail. By the impugned judgment and order the learned Single Judge of the High Court has allowed the said application and has directed to release respondent no.2 on bail by observing in clausesandof paragraph 4 as under and without adverting to the material collected during the course of the investigation and without considering the seriousness of the offence and the criminal conspiracy hatched by respondent no.2 to kill his wife for monetary benefits. The observations made in clausesandof paragraph 4 read as under At the end of the submissions it appears that the prosecution case rests on circumstantial evidence and therefore it is not legal and proper to deny bail to the present applicant on such weak piece of evidence The applicant has deep root in the society no apprehension as to flee away or escape trial or tampering with the evidence witnesses is expressed.” Feeling aggrieved and dissatisfied with the impugned order passed by the learned Single Judge of the High Court directing to release respondent no.2 on bail the father of the deceased has preferred the Shri Pradhuman Gohil learned Advocate appearing on behalf of the appellant has vehemently submitted that in the facts and circumstances of the case the High Court has committed a grave error in releasing respondent no.2 on bail It is vehemently submitted that while releasing respondent no.2 on bail the High Court has not adverted to any of the material collected during the course of the investigation which are the part of the charge sheet and that the nature and gravity of the offence It is submitted that the High Court as such has not assigned any reasons except that it is a case of circumstantial evidence which can be said to be a weak piece of evidence It is submitted that the impugned order passed by the High Court releasing respondent no.2 on bail is contrary to the law laid down by this Court in the case of Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwanaand others reported in6 SCC 630 as well as the recent decision of this Court in the case of Bhoopendra Singh v. State of Rajasthan & another and decision of this Court in the case of Mahipal v. Rajesh Kumar reported in2 SCC 118 It is submitted that in the present case during the course of the investigation it has been revealed that respondent no.2 was in financial difficulty he got insurance accidental policy in the joint names of himself and his wife of Rs. 60 lakhs on 29.09.2020. It is submitted that thereafter he hatched the criminal conspiracy with the other co accused to kill her wife to get the monetary benefits and ultimately killed his wife on 26.12.2020 It is submitted that during the course of the investigation the Investigating Officer has collected ample material to complete the chain of events. It is submitted that the Investigating Officer has collected the call details between respondent no.2 and co accused Kirtikumar Kanaji and the co accused driver of the Swift Car and it has been found that all the three were in touch with each other and they talked between 4:22 a.m. to 6:25 a.m. on the date of the incident and thereafter the deceased was hit by the co accused Maheshbhai at 7:00 a.m. It is submitted that therefore the High Court ought not to have release respondent no.2 on Ms. Archana Pathak Dave learned counsel appearing on behalf of the State of Gujarat has supported the appellant. It is submitted that looking to the nature and gravity of the offence committed by respondent no.2 the High Court ought not to have released respondent no.2 on bail It is submitted that after a detailed investigation respondent no.2 and the other co accused have been charge sheeted for the offences under Sections 302 and 120(B) IPC for having hatched the criminal conspiracy and killed the wife of respondent no.2 for monetary benefits Ms. Neelam Singh learned Advocate appearing on behalf of respondent no.2 while opposing the present appeal has submitted that as investigation has been completed and charge sheet has been filed and the custodial interrogation of respondent no.2 is not required and therefore the High Court has not committed any error in releasing respondent no.2 on bail more particularly when the prosecution case rests on circumstantial evidence 6. We have heard the learned counsel for the respective parties at length. We have gone through the impugned judgment and order passed by the High Court releasing respondent no.2 on bail. Except making observations in clausesandof paragraph 4 reproduced hereinabove no further reasons have been assigned by the High Court while releasing respondent no.2 on bail. Even the High Court has not at all adverted to the material collected during the course of the investigation. The High Court has not at all considered the material evidence collected during the course of the investigation even prima facie and has directed to release respondent no.2 in such a serious offence of hatching conspiracy to kill his wife by simply observing that as it is a case of circumstantial evidence which is a weak piece of evidence it is not legal and proper to deny bail to respondent no.2. Merely because the prosecution case rests on circumstantial evidence cannot be a ground to release the accused on bail if during the course of the investigation the evidence material has been collected and prima facie the complete chain of events is established. As observed hereinabove while releasing respondent no.2 on bail the learned Single Judge of the High Court has not at all adverted to and or considered any of the material evidence collected during the course of the investigation which is a part of the charge sheet One another reason given by the High Court to release respondent no.2 on bail is that the accused has deep root in the society and no apprehension as to flee away or escape trial or tampering with the evidence witnesses is expressed. In a case of committing the offence under Section 302 read with 120B IPC and in a case of hatching conspiracy to kill his wife and looking to the seriousness of the offence the aforesaid can hardly be a ground to release the accused on bail At this stage few decisions of this Court on grant of bail are required to be referred to a) In Gudikanti Narasimhulu & Ors. vs. Public Prosecutor High Court of Andhra Pradesh 1 SCC 240 Krishna Iyer J. while elaborating on the content of Article 21 of the Constitution of India in the context of liberty of a person under trial has laid down the key factors that have to be considered while granting bail which are extracted as under “7. It is thus obvious that the nature of the charge is the vital factor and the nature of the evidence also is pertinent. The punishment to which the party may be liable if convicted or conviction is confirmed also bears upon the issue 8. Another relevant factor is as to whether the course of justice would be thwarted by him who seeks the benignant jurisdiction of the Court to be freed for the 9. Thus the legal principles and practice validate the Court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational in this context to enquire into the antecedents of a man who is applying for bail to find whether he has a bad record particularly a record which suggests that he is likely to commit serious offences while on bail. In regard to habituals it is part of criminological history that a thoughtless bail order has enabled the bailee to exploit the opportunity to inflict further about the criminal record of a defendant is therefore not an exercise in b) In Prahlad Singh Bhati vs. NCT of Delhi & ORS 4 SCC 280 this Court highlighted the aspects which are to be considered by a court while dealing with an application seeking bail. The same may be extracted as follows: “The jurisdiction to grant bail has to be exercised on the basis of well settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail the court has to keep in mind the nature of accusations the nature of evidence in support thereof the severity of the punishment which conviction will entail the character behavior means and standing of the accused 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 interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the Legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of c) This Court in Ram Govind Upadhyay vs. Sudarshan Singh In Kalyan Chandra Sarkar vs. Rajesh Ranjan alias Pappu Yadav Anr. 7 SCC 528 this Court held that although it is established that a court considering a bail application cannot undertake a detailed examination of evidence and an elaborate discussion on the merits of the case the court is required to indicate the prima facie reasons justifying the grant of bail. e) In Prasanta Kumar Sarkar vs. Ashis Chaterjee 14 SCC 496 this Court observed that where a High Court has granted bail mechanically the said order would suffer from the vice of non application of mind rendering it illegal. This Court held as under with regard to the circumstances under which an order granting bail may be set aside. In doing so the factors which ought to have guided the Court’s decision to grant bail have also been detailed as under: “It is trite that this Court does not normally interfere with an order passed by the High Court granting or rejecting bail to the accused. However it is equally incumbent upon the High Court to exercise its discretion judiciously cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that among other circumstances the factors to be borne in mind while considering an application for bail are i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence nature and gravity of the accusation iii) severity of the punishment in the event of conviction danger of the accused absconding or fleeing if released on bail character behaviour means position and standing of the accused danger of course of justice being thwarted by grant of bail.” In Neeru Yadav vs. State of UP & Anr. 15 SCC 422 after referring to a catena of judgments of this Court on the considerations to be placed at balance while deciding to grant bail it is observed in paragraphs 15 and 18 as under: “15. This being the position of law it is clear as cloudless sky that the High Court has totally ignored the criminal antecedents of the accused. What has weighed with the High Court is the doctrine of parity A history sheeter involved in the nature of crimes which we have reproduced hereinabove are not minor offences so that he is not to be retained in custody but the crimes are of heinous nature and such crimes by no stretch of imagination can be regarded as jejune. Such cases do create a thunder and lightening having the effect potentiality of torrential rain in an analytical mind. The law expects the judiciary to be alert while admitting these kind of accused persons to be at large and therefore the emphasis is on exercise of discretion judiciously and not in a whimsical manner. x x x 18. Before parting with the case we may repeat with profit that it is not an appeal for cancellation of bail as the cancellation is not sought because of supervening circumstances. The annulment of the order passed by the High Court is sought as many relevant factors have not been taken into the criminal consideration which antecedents of the accused and that makes the order a deviant one. Therefore the inevitable result is the lancination of the impugned order.” includes In Anil Kumar Yadav vs. State(2018) 12 SCC 129 it is observed and held by this Court that while granting bail the relevant considerations are nature of seriousness of the offence likelihood of the accused fleeing from justice the impact that his release may make on the prosecution witnesses its impact on the society andlikelihood of his tampering. 8.2 Emphasizing on giving brief reasons while granting bail it is observed by this Court in the case of Ramesh Bhavan Rathodand thereafter the co accused Mahesh hit the deceased Daxaben by the said car and committed murder from the back side so as to consider it as an accidental death. During all these times all the accused were in touch on phone calls. Therefore looking to the seriousness of the offence and looking to the nature and gravity of the offence committed by respondent no.2 the High Court ought not to have released respondent no.2 on bail While releasing respondent no.2 on bail the High Court has not at all considered the parameters to be considered while releasing the accused on bail and that too in a serious offence of murder and hatching conspiracy to kill his wife. The impugned order passed by the High Court releasing respondent no.2 cannot be sustained and the same deserves to be quashed and set aside In view of the above and for the reasons stated above the present appeal is allowed. The impugned judgment and order dated 30.07.2021 passed by the learned Single Judge of the High Court of Gujarat at Ahmedabad in Criminal Miscellaneous Application No. 9390 2021 releasing respondent no.2 herein on bail is hereby quashed and set aside. Since we have quashed and set aside the impugned order releasing respondent no.2 herein on bail respondent no.2 is directed to surrender before the concerned Court Jail authorities within a period of one week from today. However it is observed that the observations made in this judgment are for the purpose of deciding the question of bail only and the trial Court shall proceed with the trial of the case and decide the same in accordance with law and on the basis of the evidence led by NEW DELHI JANUARY 18 2022 SANJIV KHANNA]

Delay in claim, not a ground for rejection: SC

It was held by the Supreme Court that the insurance company could not have repudiated the claim merely on the ground that the consumer intimated them about the theft, after a long period of time. This was ruled out by the Supreme Court Bench comprising of  Justice Sanjiv Khanna and Justice Bela M. Trivedi in the matter concerning ‘Jaina Construction Company v The Oriental Insurance Company Ltd & Anr.’ in CIVIL APPEAL NO. 1069 OF 2022, decided on 11 February,2022. The present appeal arose from the grievance that the respondent had from the order passed by National Consumer Disputes Redressal Forum in Petition No. 1104 of 2016 where NCDRC set aside the orders of State Consumer Disputes Redressal Forum & Dispute Consumer Redressal Forum. The facts of the case are as such that the appellant had  a vehicle which was insured with the Insurance Company. The vehicle got stolen following which an FIR was lodged, the thieves were caught. However, there was no trace of the vehicle. Thus, the complainant lodged a claim for insurance with the insurance company. The company repudiated the claim stating breach of condition since there was a delay in lodging the claim. The claim was not settled within reasonable time & thus, the complainant filed the case in front of DCDRF, Gurgaon. The DCDRF allowed the claimant’s complaint & the SCDRF dismissed the appeal upholding DCDRF’s ruling. The respondent then appealed to NCDRF which set aside the orders passed by the inferior forums. This brought the present appeal to the apex court. The court, after hearing the counsels & observing the facts and law in the present case, ruled that it is a noteworthy fact that the complaint was lodged immediately. The company repudiated the claim not on ground of genuineness but delay. When the complaint was found to be genuine, the company could not have repudiated the claim merely on the ground that there was a delay in informing the Company with regard to the theft. The court rules out that the NCDRC should not have set aside the orders of the state and district forums. The order of the National formal was erroneous and was therefore, quashed.

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1069 OF 2022 .... APPELLANT JAINA CONSTRUCTION COMPANY THE ORIENTAL INSURANCE COMPANY LIMITED & ANR. JUDGMENT .... RESPONDENTS BELA M. TRIVEDI J. 1. The present appeal is directed against the impugned order dated 9th September 2016 passed by the National Consumer Disputes Redressal Commission New Delhi in Revision Petition No. 11016 whereby the NCDRC while allowing the said Revision Petition filed by Respondent No. 1 Insurance Company has set aside the order dated 16th December 2015 passed by the State Consumer Disputes Redressal Commission Haryana at Panchkula and the order dated 26th February 2015 passed by the District Consumer Disputes Redressal Forum Gurgaon. Heard Mr. Avinash Lakhanpal learned counsel appearing on behalf of the appellant. None has entered appearance on behalf of the respondents though 3. The precise question that falls for consideration before this Court is whether the Insurance Company could repudiate the claim in toto made by the owner of the vehicle which was duly insured with the insurance company in case of loss of the vehicle due to theft merely on the ground that there was a delay in informing the company regarding the theft of duly served. vehicle 4. The undisputed facts transpiring from the record are that the vehicle in question i.e. Tata Aiwa Truck bearing Registration No. RJ 02 098177 was purchased by the appellant on 31.10.2007. The said vehicle was duly insured with Respondent No. 1 Insurance Company. The said vehicle was robbed by some miscreants on 04.11.2007. Consequently an FIR was registered by the appellant complainant on 05.11.2007 for the offence under Section 395 IPC at Police Station Nagina District Mewat Haryana). The police arrested the accused and also filed the challan against them in the concerned Court however the vehicle in question could not be traced and therefore the police filed untraceable report on 23.08.2008. Thereafter the complainant lodged the claim with the Insurance Company with regard to the theft of the vehicle in question. The Insurance Company however failed to settle the claim within a reasonable time and therefore the appellant complainant filed a complaint being the Consumer Complaint No. 63 of 2010 before the District Consumer Disputes Redressal Forum Gurgaon. It may be noted that during the pendency of the complaint before the District Forum the respondent no.1 Insurance Company repudiated the claim of the complainant vide its letter dated 19.10.2010 stating inter alia that there was a breach of condition no. 1 of the policy which mandated immediate notice to the insurer of the accidental loss damage and that the complainant had intimated about the loss on 11.04.2008 i.e. after the lapse of more than five months and therefore the Insurance Company had disowned their liability on the claim of the complainant. 6. The District Forum allowed the said claim of the complainant by holding that the complainant was entitled to the insured amount on non standard basis i.e. Rs. 12 79 399 as 75% of the IDV i.e. Rs. 17 05 865 with interest @ 6% p.a. from the date of filing of the complaint till realization from the Insurance Company. The District Forum also awarded compensation of Rs.10 000 and litigation expenses of Rs.5 000 to the complainant. The aggrieved Insurance Company preferred an appeal being Appeal No. 612 of 2015 before the State Consumer Disputes Redressal Commission Panchkula. The complainant also preferred an appeal being Appeal No. 5315 seeking enhancement of compensation. The State Commission dismissed the appeal filed by the Insurance Company and partly allowed the appeal filed by the complainant by increasing rate of interest awarded by the District Forum from 6% to 9% vide the Judgment and Order dated 16.12.2015. The aggrieved Insurance Company preferred the Revision Petition before the NCDRC which came to be allowed as stated hereinabove. 7. Since the respondent no.1 Insurance Company has repudiated the claim of the complainant on the ground that the complainant had committed the breach of Condition No. 1 of the Insurance Contract it would be beneficial to reproduce the said condition which reads as under: “1. Notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage in the event of any claim and insured shall give all such information and assistance as the company shall require. Every letter claim writ summons and or process or copy thereof shall be forwarded to the company immediately on receipt by the insured. Notice shall also be given in writing to the company immediately the insured shall have knowledge of any impending prosecution inquest or fatal inquiry in respect of any occurrence which may give rise to a claim under this policy. In case of a major loss theft or criminal act which may be the subject of a claim under this policy the insured shall give immediate notice to the police and co operate with the company in securing the conviction of the 8. At the outset it may be noted that there being a conflict of decisions of the Bench of two Judges of this Court in case of Om Prakash vs. Reliance General Insurance & Another and in case of Oriental Insurance Company Limited vs. Parvesh Chander Chadha on the question as to whether the delay occurred in informing the Insurance Company about the occurrence of the theft of the vehicle though the FIR was registered immediately would disentitle the claimant of the insurance claim the matter was referred to a three Judge Bench. The three Judge Bench in case of Gurshinder Singh vs. Shriram General Insurance Company Ltd. & Another reported in 2020 SCC 612 in similar case as on hand interpreted the very condition no. 1 of the Insurance Contract and observed as under: “9. We are of the view that much would depend upon the words “cooperate” and “immediate” in Condition 1 of the standard form for commercial vehicles package policy. Before we analyse this case any further we need to observe the rules of interpretation applicable to a contract of insurance. Generally an insurance contract is governed by the rules of interpretation applicable to the general contracts. However due to the specialised nature of contract of insurance certain rules are tailored to suit insurance contracts. Under the English law the development of insurance jurisprudence is given credence to Lord Mansfield who developed the law from its infancy. Without going much into the development of the interpretation rules we may allude to Neuberger J. in Arnold v. Britton which is simplified as under: 1) Reliance placed in some cases on surrounding circumstances was not to importance of the language of the provision which is to be construed. to undervalue 2) The less clear the words used were the more ready the court could properly be to depart from their natural meaning but that did not justify departing from the natural meaning. 3) Commercial common sense was not to be invoked retrospectively so that the arrangement has worked out badly or even disastrously for one of the parties was not a reason for departing from the natural language. 4) A court should be very slow to reject the natural meaning of a provision as correct simply because it appeared to be a very imprudent term for one of the parties to have agreed. 5) When interpreting a contractual provision the court could only take into account facts or circumstances which existed at the time that the contract was made and which were known or reasonably available to both parties. 6) If an event subsequently occurred which was plainly not intended or contemplated by the parties if it was clear what the parties would have intended the court would give effect to that intention. the court this regard 10. A perusal of the aforesaid shows that this contract is to be interpreted according to the context involved in the contract. The contract we are interpreting is a commercial vehicle package policy. There is no gainsaying that in a contract the bargaining power is usually at equal footing. In this regard the joint intention of the parties is taken into consideration for interpretation of a contract. However in most standard form contracts that is not so. In in such circumstances would consider the application of the rule of contra proferentem when ambiguity exists and an interpretation of the contract is preferred which favours the party with lesser bargaining 11. It is argued on behalf of the respondents and rightly so that the insurance policy is a contract between the insurer and the insured and the parties would be strictly bound by the terms and conditions as provided in the contract between the parties. 12. In our view applying the aforesaid principles Condition 1 of the standard form for commercial vehicles package policy will have to be divided into two parts. The perusal of the first part of Condition the 1 would reveal that it provides that “a notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage”. It further provides that in the event of any claim and thereafter insured shall give all such information and assistance as the company shall require. It provides that every letter claim writ summons and or process or copy thereof shall be forwarded to the insurance company immediately on receipt by the insured. It further provides that a notice shall also be given in writing to the company immediately by the insured if he shall have knowledge of any impending prosecution inquest or fatal inquiry in respect of any occurrence which may give rise to a claim under this policy. 13. A perusal of the wordings used in this part would reveal that all the things which are required to be done under this part are related to an occurrence of an accident. On occurrence of an accidental loss the insured is required to immediately give a notice in writing to the company. This appears to be so that the company can assign a surveyor so as to assess the damages suffered by the insured vehicle. It letter claim writ further provides summons and or process or copy thereof shall be forwarded to the company immediately on receipt by the insured. As such the intention would be clear. The question of receipt of letter claim writ summons and or process or copy thereof by the insured would only arise in the event of the criminal proceedings being initiated with regard to the occurrence of the accident. It further provides that the insured shall also give a notice in writing to the company immediately if the insured shall have the knowledge of any impending prosecution inquest or fatal inquiry in respect of any occurrence which that any may give rise to a claim under this policy. It will again make the intention clear that the immediate action is contemplated in respect of an accident occurring to the vehicle. 14. We find that the second part of Condition 1 deals with the “theft or criminal act other than the accident”. It provides that in case of theft or criminal act which may be the subject of a claim under the policy the insured shall give immediate notice to the police and cooperate with the company in securing the conviction of the offender. The object behind giving immediate notice to the police appears to be that if the police is immediately informed about the theft or any criminal act the police machinery can be set in motion and steps for recovery of the vehicle could be expedited. In a case of theft the insurance company or a surveyor would have a limited role. It is the police who acting on the FIR of the insured will be required to take immediate steps for tracing and recovering the vehicle. Per contra the surveyor of the insurance company at the most could ascertain the factum regarding the theft of the vehicle. 15. It is further to be noted that in the event after the registration of an FIR the police successfully recovering the vehicle and returning the same to the insured there would be no occasion to lodge a claim for compensation on account of the policy. It is only when the police are not in a position to trace and recover the vehicle and the final report is lodged by the police after the vehicle is not traced the insured would be in a position to lodge his claim for 16. the “duty 17. That the term “cooperate” as used under the contract needs to be assessed in the facts and circumstances. While assessing cooperate” for the insured inter alia the court should have regard to those breaches by the insured which are prejudicial to the insurance company. Usually mere delay in informing the theft to the insurer when the same was already informed to the law enforcement authorities cannot amount to a breach of “duty to cooperate” of the insured. 18. … 19. .. 20. We therefore hold that when an insured has lodged the FIR immediately after the theft of a vehicle occurred and when the police after investigation have lodged a final report after the vehicle was not surveyors investigators appointed by the insurance company have found the claim of the theft to be genuine insurance company about the occurrence of the theft cannot be a ground to deny the claim of the then mere delay and when In the opinion of the Court the afore stated ratio of the judgment clinches the issue involved in the case on hand. In the instant case also the FIR was lodged immediately on the next day of the occurrence of theft of the vehicle by the complainant. The accused were also arrested and charge sheeted however the vehicle could not be traced out. Of course it is true that there was a delay of about five months on the part of the complainant in informing and lodging its claim before the Insurance Company nonetheless it is pertinent to note that the Insurance Company has not repudiated the claim on the ground that it was not genuine. It has repudiated only on the ground of delay. When the complainant had lodged the FIR immediately after the theft of the vehicle and when the police after the investigation had arrested the accused and also filed challan before the concerned Court and when the claim of the insured was not found to be not genuine the Insurance Company could not have repudiated the claim merely on the ground that there was a delay in intimating the Insurance Company about the occurrence of the theft. 10. In that view of the matter the Court is of the opinion that the NCDRC should not have set aside the orders of the District Forum and the State Commission by holding that the repudiation of the insurance claim by the insurance company was justified. The impugned order being erroneous and against the settled position of law deserves to be set aside and is set aside accordingly. 11. The appeal is allowed affirming the order of the State Commission. NEW DELHI 11.02.2022 .................................J. ..............................J.

Court cannot issue injunction for determinable contract which fall U/s.14(1)(c) of the SRA: High Court of New Delhi

The CA being a determinable contract, under the provisions of Section 14(1)(c) of the SRA, no injunction could have been issued for howsoever short a duration and the impugned order to the extent it directs that the termination notice to be kept in abeyance is against the settled law. This was held in NATIONAL HIGHWAYS AUTHORITY OF INDIA v. PANIPAT JALANDHAR NH-I TOLLWAY PVT.LTD[FAO(OS)(COMM)55/2021] in the High Court of New Delhi by division bench consisting of JUSTICE MANMOHAN and  JUSTICE ASHA MENON. Facts are that the respondent and the appellant had entered into a  Concession Agreement in which the appellant had issued a ‘Suspension Notice’ under Clause 36.1 of the CA suspending all rights of the respondent under the CA, which was followed by a Termination notice. The respondent had filed a petition U/S.9 of the Arbitration and Conciliation Act, 1996, where the court-ordered interim reliefs. The same has given rise to the present appeal by the appellant. The counsel for the appellant the NHAI has prayed that interim order be set aside. The action taken by the appellant was fully in accordance with the terms of the CA, to suspend all rights of the concessionaire which relate to the collection of fee and other revenues and authorize itself or some other person to collect these revenues during the suspension period, that termination was not dependent on time limits. It was submitted that Articles 36 and 37 provide for a “composite scheme”. The learned counsel for the respondent contended the Termination Notice was a colorable exercise of the power. It was further argued that none of the orders in the previous proceedings approved of such exercise of power of termination by the NHAI. If such termination was allowed, it would render the challenge of the respondent of the suspension, infructuous. Therefore, the interim order was just, fair, and equitable and called for no interference. The court in order to discuss the maintainability of such appeals that are under the purview of an appellate court referred to the judgment of Wander Ltd. and Anr. v. Antox India (P) Ltd., wherein the following observations were made, “14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate court will not interfere with the exercise of discretion of the court of the first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions…” The court also made reference to the judgment of the Apex court in, Indian Oil Corporation Ltd. v. Amritsar Gas Service and Others., wherein it was held that, “The finding in the award being that the Distributorship Agreement was revokable and the same being admittedly for rendering personal service, the relevant provisions of the Specific Relief Act were automatically attracted. Sub-section (1) of Section 14 of the Specific Relief Act specifies the contracts which cannot be specifically enforced, one of which is ‘a contract which is in its nature determinable. In the present case, it is not necessary to refer to the other clauses of sub-section (1) of Section 14, which also may be attracted in the present case since clause (c) clearly applies on the finding read with reasons given in the award itself that the contract by its nature is determinable. This being so granting the relief of restoration of the distributorship even on the finding that the breach was committed by the appellant-Corporation is contrary to the mandate in Section 14(1) of the Specific Relief Act and there is an error of law apparent on the face of the award which is stated to be made according to ‘the law governing such cases’ The grant of this relief in the award cannot, therefore, be sustained.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 26th March 2021 Pronounced on: 13th April 2021 FAO(OS)55 2021 & C.M.Nos.11596 11597 2021 NATIONAL HIGHWAYS AUTHORITY OF INDIA Through: Mr. Tushar Mehta SGI with Ms. Madhu Sweta and Ms. Shivangi Khanna Advocates PANIPAT JALANDHAR NH I TOLLWAY PVT. LTD Through: Dr. Abhishek Manu Singhvi and Mr. Harish Malhotra Senior Advocates with Mr. Dhirendra Negi Ms. Pragya Chauhan and Mr. Amit Bhandari Advocates HON BLE MR. JUSTICE MANMOHAN HON BLE MS. JUSTICE ASHA MENON JUDGMENT ASHA MENON J: The following observations by the learned Single Judge in the order dated 12th March 2021 passed in O.M.P.(I)98 2021 has brought the appellant National Highways Authority of India before us: “21. Mr. Mehta has laid much emphasis on the intent of the FAO(OS)55 2021 language used in Clause 37.1.2 which begins with the words “without prejudice to any other rights or remedies”. There is no doubt that the Respondent could take recourse to the aforesaid provision without prejudice to other rights and remedies and proceed to suspend the Petitioner and accord it an opportunity to cure the defects. However that does not mean that in case the Respondent has elected to exercise this remedy it could simultaneously also proceed to terminate under Clause 37.1.2 on the basis of same set of facts. Since the Respondent has elected to go down the path of suspending the rights of the Petitioner as available under the agreement the opportunity to cure the defects has to be necessarily given failing which the Clause itself would become redundant. 22. Be that as it may we are at the stage of admission. The Petitioner has made out a prima facie case in its favour and in case no stay is granted it will suffer an irreparable loss. The balance of convenience also lies in favour of the Petitioner and against the Respondent. The matter certainly requires consideration. Accordingly till the next date of hearing the termination notice dated 5th March 2021 is directed to be kept in abeyance. The arrangement between the parties would continue as per the orders passed in O.M.P.(COMM) No. 421 2020 noted above.” The crux of the submissions of Sh. Tushar Mehta learned Solicitor General of India appearing for the NHAI is that the provisions under Article 36 and Article 37 of the Concession Agreementdo not operate in separate and mutually exclusive spheres but form a “composite scheme” and both options are available to the NHAI in the event there is a concessionaire default. FAO(OS)55 2021 3. Per contra Dr. Abhishek Manu Singhvi and Sh.Harish Malhotra learned senior counsel appearing for the respondent Panipat Jalandhar NH I Tollway Pvt. Ltd.contended that the two Articles are mutually exclusive and if the NHAI exercised its choice of proceeding under Article 36 it could not jump to Article 37 to terminate the CA without allowing the entire procedure provided under Article 36 to play out. At this stage it may be appropriate to briefly refer to the facts of the present case. On 9th May 2008 the parties entered into the CA in respect of ‘Six Laning of Panipat Jalandhar Section of NH 1 From Km 96.00 to Km 387.10in the State of Haryana and Punjab to be executed on Built Operate Transferbasis on Design Build Finance Operate DBFO) pattern under NHDP Phase V’ hereinafter referred to as the “Project”). The CA was entered for a period of fifteen years from 11th May 2009 till 11th May 2024. The project was scheduled to be completed by 9th November 2011was the Escrow Agent for operation of the Escrow Account. The estimated cost of the project was Rs.2747.50 crores but the Capital Cost submitted by the respondent PJT amounted to Rs.4518.17 crores. Disputes arose between the parties even before the Provisional Completion Certificate was issued by the Independent Engineer on 30th September 2015. These disputes relating to the year 2013 are before an Arbitral Tribunal. FAO(OS)55 2021 5. According to the NHAI the respondent PJT failed to meet its O & M obligations as per the CA in particular relating to safety standards leading to accidents and the completion of balance work after issuance of the Provisional Completion Certificate. On 13th September 2019 the NHAI issued a ‘Cure Period Notice’ under Clause 37.1.1 highlighting the several consistent defaults by the respondent PJT and called upon it to cure the defaults within sixty days failing which it would exercise its rights to terminate the CA. On 28th January 2020 a ‘Notice of intention to issue termination notice’was issued under Clauses 37.1.2 and 37.1.3 of the CA with a copy to the Senior Lenders. The respondent PJT filed a petition being O.M.P.(I)(COMM) 40 2020 under Section 9 of the Arbitration and Conciliation Act 1996seeking a stay on the NIT which was disposed of on 10th February 2020 on submissions made on behalf of the NHAI that no decision to terminate had yet been In an appeal bearing No. FAO(OS)(COMM)34 2020 the Division Bench of this Court directed that in the event the NHAI decided to terminate the CA the same would be kept in abeyance for a period of seven working days to enable the respondent PJT herein to take legal recourse. The Senior Lenders represented by the SBI being the lead Bank had been sent a copy of the NIT dated 28th January 2020 and it sent a reply dated 11th February 2020requesting the NHAI to withhold the termination of the CA for the period of 180 days or such other period so as to compel enable the respondent PJT to cure the defaults within the period as contemplated under the proviso to Clauses FAO(OS)55 2021 37.1.3 of the CA and also exercise their right to substitute the respondent PJT Concessionaire if required within the said period in accordance with the Clause 3.3 of the Substitution Agreement. Again on 24th February 2020the Senior Lenders made a similar request also stating that in case the respondent PJT failed to cure the defects within the period of 180 days they would exercise the right to substitute the concessionaire as provided in the CA. The NHAI also intimated the Escrow Banker vide letter dated 25th September 2020 that as the respondent PJT had despite an opportunity of more than 180 days from the date of issuance of the NIT not complied with the provisions of the CA and since the Lenders Escrow Banker had failed to substitute the respondent PJT Concessionaire the NHAI was at liberty to invoke the Clause 37.1.2 i.e. termination for concessionaire’s default in terms of the orders dated 10th February 2020 passed in FAO(OS)(COMM)34 2020. Then on 4th December 2020 the NHAI issued a ‘Suspension Notice’ under Clause 36.1 of the CA suspending all rights of the respondent PJT under the CA. This was on the basis of concessionaire defaults spelt out in the said Notice. Once again the respondent PJT filed a petition under Section 9 of the Act being O.M.P.(I)(COMM) 421 2020 wherein various prayers were made particularly in respect of the fact that the right to collect toll had been given to another Agency namely M s. Eagle Infra India Limited and vide order dated 15th December 2020 the learned Single Judge directed that such collection would be deposited in an Escrow Account without withdrawals. In the same matter on 22nd December 2020 a further FAO(OS)55 2021 direction was issued by the learned Single Judge allowing the plea of the respondent PJT herein permitting its representative to remain present at all the three toll plazas. However the representative was restrained from interfering in any manner with the toll collection which was to remain the sole prerogative of M s. Eagle Infra India Limited. As per order dated 3rd March 2021 this O.M.P.(I)(COMM) No. 421 2020 is to come up for hearing on 13th April 2021. It may be mentioned here that the Senior Lenders vide email dated 16th February 2021wrote to the NHAI regarding the status of different projects and with respect to the current project stated that if the defects were not cured by the concessionaire within the cure period the CA may be terminated. The petition under Section 9 of the Act which has given rise to the present appeal was filed when the NHAI issued a Termination Notice dated 5th March 2021 seeking its stay. RIVAL CONTENTIONS By way of the present appeal the NHAI has prayed that the impugned interim order dated 12th March 2021 be set aside. The learned Solicitor General drew our attention to various Articles and Clauses of the CA and various communications between the parties to submit that the action taken by the NHAI was fully in accordance with the terms of the CA. He pointed out that the Article 36 relating to suspension of concessionaire’s right provided under Clause 36.1 that upon occurrence of a concessionaire default the NHAI would be entitled “without prejudice to its other rights and remedies under the Agreement including FAO(OS)55 2021 its rights of termination” to suspend all rights of the concessionaire which relate to collection of fee and other revenues and authorize itself or some other person to collect these revenues during the suspension period. It was his submission that termination was not dependent on the expiry of 180 days as under Article 37 there was no such requirement and different time limits of lesser duration have been prescribed for the removal of concessionaire defaults of different kinds. He however conceded that termination under Article 37 could be only after the expiry of the cure period which in the present case was 90 days. According to him the respondent PJT could not have cured the defects even by the 91st day and the issuance of the Termination Notice on 5th March 2021 was fully in consonance with the terms of the CA. He drew the Court’s attention to the Clause 36.3.2 in this context pointing out that if within a period not exceeding 90 days from the date of suspension the concessionaire had cured the default the NHAI had to revoke the suspension forthwith. 180 days was the outer limit and was not the limitation period after which alone the right to terminate could be exercised. It was his submission that in the event the suspension was not revoked after the 90th day and upto the 180th day then without any other Termination Notice the CA would come to an automatic end. In the written submissions filed on behalf of the NHAI it was submitted that the Articles 36 and 37 provide for a “composite scheme”. The power of suspension provided under Article 36 was in addition to the power of termination under Article 37. The suspension could be revoked if the FAO(OS)55 2021 concessionaire cured the defects within the stipulated period of 90 days. If the defaults were not cured within 90 days the NHAI could chose to wait for 180 days but that did not mean that it was precluded from acting before the expiry of the 180 days. The discretion vested with the NHAI to proceed immediately after 90 days were over without any action for curing the defects except where the Senior Lenders had sought time along with the concessionaire for either extending the period for curing or allowing 180 days to substitute the concessionaire. Thus the provisions of suspension and termination were not mutually exclusive. It was submitted that the only limitation upon the NHAI if the suspension route was taken was to wait for 90 days to allow the concessionaire to cure the defaults but after the 90th day since the Article 36 was without prejudice to its other rights and remedies including the right to termination nothing could prevent the NHAI from acting under Article 37 particularly since the Lenders’ Representative had in fact agreed with the termination through their communication dated 16th February 2021. It was also submitted that none of the orders passed in the other proceedings referred to hereinabove debarred the NHAI from terminating the CA in accordance with Article 37 on the ground that the default has not been cured. Thus it was submitted that the learned Single Judge erred in observing that because the NHAI had exercised its option under Article 36 to suspend the rights of the concessionaire it was incumbent on the NHAI to wait for 180 days before the CA stood 13. The learned Solicitor General also submitted that at best if on FAO(OS)55 2021 facts the NHAI had wrongly terminated the CA the respondent PJT would be entitled to seek damages. The very nature of the CA was of a terminable contract and therefore no injunction could have been issued. It was submitted that the maintenance of the highway was being consistently ignored by the respondent PJT and several letters from third party users and organizations had been received by the NHAI highlighting a high rate of accidents occurring on the highway constructed by and under the maintenance of the respondent PJT and despite various efforts by the NHAI the respondent PJT was not rectifying the defects leading to much loss of life and limb. These letters have also been flagged. In these circumstances the learned Solicitor General prayed that the impugned order be set aside. 14. Learned senior counsel for the respondent PJT Dr. Abhishek Manu Singhvi termed the entire exercise of the right to terminate under Article 37 of the CA as mala fide. It was his contention that out of 291 kms of the NH 1 the respondent PJT had constructed 289 kms which was an excellent stretch of road as certified and even as late as on 21st September 2020 the road had been declared a pot hole free road. The I.E. on 7th May 2019 had also certified that the road was well maintained. Thus factually the claim of the NHAI was wrong. It was submitted that after having performed so well the NHAI was wrongly depriving the respondent PJT of reaping benefits through toll collections as the CA was to come to an end only in 2024. The respondent PJT had invested Rs.5 689 crores and had taken loans worth Rs.3 646 crores from Public Sector Banks and was entitled to toll collection. It was FAO(OS)55 2021 submitted that on an earlier occasion the respondent PJT had to approach the Supreme Court as great loss was being caused to the respondent PJT by the NHAI by placing tolls at the wrong places leading to loss of revenue and the claim of over Rs.7000 crores was pending against the NHAI before the Arbitral Tribunal. In the light of the previous action the present Termination Notice was also a colourable exercise of the power vested with the NHAI. It was further argued that none of the orders in the previous proceedings approved of such exercise of power of termination by the NHAI. Rather if such termination was allowed it would render the challenge of the respondent PJT of the suspension infructuous. Therefore the impugned order was just fair and equitable and called for no interference. It was also submitted that since the order was an interim order the court should not interfere with it following the decision of the Supreme Court in Wander Ltd. and Anr. v. Antox IndiaLtd. 1990 Suppl. SCC 727. It was also argued relying on the judgments reported as Narendra Hirawat and Co. v. Sholay Media Entertainment Pvt. Ltd. and Anr. 2020 SCC OnLine Bom 391 and Jumbo World Holdings Ltd. and Anr. v. Embassy Property Developments Private Limited and Ors. 2020 SCC OnLine Mad 61 that the CA was not a contract that was determinable as termination on account of breach was excluded from the “nature” of determinable contacts and therefore the injunction issued by the learned Single Judge was appropriate. It was also submitted that the NHAI having once elected to exercise its rights under Article 36 was by the ‘Doctrine of Election’ FAO(OS)55 2021 estopped from exercising rights under Article 37. In these circumstances the termination could have been only as a result of the expiry of 180 days provided there was no curing of the defects. According to learned senior counsel the defects had in fact been cured and this question being one of fact had to be decided in arbitration. In these circumstances the impugned order called for no interference. 17. The learned Solicitor General has placed reliance on A.Venkatasubbiah Naidu v. S. Chellappan and Ors. 7 SCC 695 Anilbhai M. Patel and Ors. v. Suryapur Bank Agent D.B.H. Samiti and Ors. 4 SCC 83 Babu Lal and Ors. v. Vijay Solvex Ltd. and Ors. 16 SCC 680 State of West Bengal and Ors. v. Banibrata Ghosh and Ors. 3 SCC 250 Ratna Commercial Enterprises Ltd. & Anr. V. Vasutech Ltd. 2007 SCC OnLine Del 914 and Zila Parishad Budaun and Ors. v. Brahma Rishi Sharma 1969 SCC OnLine All 237 to contend that appeals against interim orders were maintainable. There is no doubt about the maintainability of such appeals. However learned senior counsel for the respondent PJT urged this Court not to interfere with the interim orders by placing reliance on Wander Ltd.Airgate Holdings Ltd. v. Sumit Mohan Singh Gandhi & Ors. judgment dated 8th February 2021 in FAO16 2021 and Mewa Mishri Enterprises Pvt. Ltd. v. AST Enterprises Inc. judgment dated 23rd February 2021 in FAO28 2021. 18. No doubt in Wander Ltd.it was held as under: “14. The appeals before the Division Bench were FAO(OS)55 2021 against the exercise of discretion by the Single Judge. In such appeals the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions ” But it is clear that the Appellate Court is not barred from considering the merits of the decision of the Single Judge Trial Court even if the order impugned is an interim order of injunction. The facts and the context will determine whether or not the Appellant Court will interfere or hold its hands. As will be clear a little later this Court is of the view that the present matter requires to be considered on merits by this Court. 19. Relying on several judgments including Indian Oil Corporation Ltd. v. Amritsar Gas Service and Others 1 SCC 533 Jindal Steel and Power Limited v. M s. SAP India Pvt. Ltd. 2015 SCC OnLine Del 10067 and Inter Ads Exhibition Pvt. Ltd. v. Busworld International Cooperatieve Vennootschap Met Beperkte Anasprakelijkheid judgment dated 1st May 2020 in FAO(OS)(COMM) 23 2020 the contention on behalf of the appellant was that when the contract was determinable no injunction against termination and enforcement of the contract could have been issued as has been done by the learned Single Judge. Much reliance has been placed by the respondent PJT on two cases namely Narendra Hirawat and Jumbo World Holdings the argument being that the CA was not in its nature “determinable” and therefore Section 14(1)(c) and Section 41 of the Specific Relief Act 1963(COMM) 55 2021 for short) have no application in the present case. While the facts in both the cases were vastly different from that prevailing in the instant case these two judgments even otherwise are not applicable to the instant case. A perusal of these judgments reveals that the learned Single Judges in both the cases have themselves distinguished these cases from Indian Oil Corporation Ltd. and Jindal Steel for instance the court observed as under: the contract distributorship agreement) gave right to either party to determine the agreement by giving 30 days notice and the only relief that was permissible in such a case was award of a compensation for the period of notice that is to say 30 days. It is in the context of this clause that the Supreme Court held that the respondent before itwas not entitled to restoration of its distributorship terminated by the appellantbut only entitled to compensation for loss of earning for the notice period of 30 days since such notice was not given by the defendant to the plaintiff. Likewise in Jindal Steel and Power Ltd.the relevant clause of the contract gave right to the respondent before the Courtto terminate the licence after giving 30 days notice to the petitionerthe relevant contractgave right to either party to the contract to terminate the agreement upon a 30 days prior written notice to the other party without assigning any reason for such termination. Once again it is in the context of such unilateral right of termination that the Court came to a conclusion that the contract was by its very nature FAO(OS)55 2021 determinable and no specific performance could be claimed. All these cases are clearly distinguishable and do not support the defendants case here.” 20. Likewise in Jumbo World Holdings Ltd. while the learned Single Judge has set out five categories of contracts that are determinable for the purposes of Section 14(1)(c) of the SRA but also observed as under: “In my view although the Indian Oil case referred to clause 27 thereof which provided for termination forthwith “for cause” the decision turned on clause 28 thereof which provided for “no fault” termination as discussed earlier.” In Indian Oil Corporation Ltd.the court was dealing with the question of validity of termination of Distributorship Agreement. The learned Arbitrator had concluded that the termination was not in accordance with the Clause 27 of the Distributorship Agreement but went on to hold that the Award would not fetter the rights of the defendant Corporation to terminate the distributorship of the plaintiff in accordance with the said Agreement if such an occasion arises. In this context the Supreme Court observed as below: “12. … This finding read along with the reasons given in the award clearly accepts that the distributorship could be terminated in accordance with the terms of the agreement dated April 1 1976 which contains the aforesaid clauses 27 and 28. Having said so in the award itself it is obvious that the arbitrator held the distributorship to be revokable in accordance with clauses 27 and 28 of the agreement. It is in this sense that the award describes the Distributorship Agreement as one for an indefinite period that is till FAO(OS)55 2021 terminated in accordance with clauses 27 and 28. The finding in the award being that the Distributorship Agreement was revokable and the same being admittedly for rendering personal service the relevant provisions of the Specific Relief Act were automatically attracted. Sub sectionof Section 14 of the Specific Relief Act specifies the contracts which cannot be specifically enforced one of which is ‘a contract which is in its nature determinable’. In the present case it is not necessary to refer to the other clauses of sub sectionof Section 14 which also may be attracted in the present case since clauseclearly applies on the finding read with reasons given in the award itself that the contract by its nature is determinable. This being so granting the relief of restoration of the distributorship even on the finding that the breach was committed by the appellant Corporation is contrary to the mandate in Section 14(1) of the Specific Relief Act and there is an error of law apparent on the face of the award which is stated to be made according to ‘the law governing such cases’. The grant of this relief in the award cannot therefore be sustained.” 22. A similar conclusion was drawn by the learned Single Judge of this court in Jindal Steeland by the Division Bench of this court in Inter Ads Exhibition are as under: “13. Whether the termination notice dated 15.03.2019 met the requirements of Article 12.4 or not and thus whether the termination was a valid termination or not would be questions that have to be examined and adjudicated upon by the learned Arbitrator to be appointed by the parties to resolve their disputes. It would also be for the learned Arbitrator to reconcile Article 7.1 with the recitals in the JVA II dated FAO(OS)55 2021 25.10.2011 as reproduced hereinabove limiting the agreement to four editions. Under Article 7 termination can be either mutually agreed to under Article 7.2 or at the option of either party on the occurrence of certain events as listed under Article 7.3 which contemplates a termination with penalty. Again the question whether the respondent had given 30 days’ time to the appellant to make good the default duly specified in reasonable detail in the communications exchanged between the parties is not for this court to inquire into. Suffice it is to state that in either event the agreement was terminable and therefore the conclusion arrived at by the learned Single Judge that specific performance of the contract could not be granted and nor could any injunction be issued restraining the respondent from giving effect to the notice dated 15.03.2019 as that would in effect amount to enforcement of the contract beyond the said date i.e. 15.03.2019 cannot be faulted. 14. The learned Single Judge has rightly relied on a decision of this court in MIC Electronics Ltd. and Ors. vs. Municipal Corporation of Delhi and Ors. 2011 II AD625 to hold that legality of the termination and the justification of the appellant of not paying the balance due to the respondent would have to be examined by the learned Arbitrator. Reliance was rightly placed on the following observations made in the captioned case: “12. Therefore licence stood terminated as correctly observed by the learned Single Judge in the impugned order and the legality or illegality of termination would be a matter to be determined in arbitration. Further the justification given by the Appellant for not paying the licence fee will be examined in the arbitral proceedings. The case of the Appellant that owing to the failure of the Respondent to perform obligations under the agreement and the latter s FAO(OS)55 2021 refusal to decrease the number of 20 of LED screens in terms of clause 6 of the agreement would also be considered by the Arbitral Tribunal. In this behalf we therefore find considerable merit in the submission made on behalf of the Respondent that if the cancellation of the contract by the Respondent constitutes a breach of contract on their part the Appellant would be entitled to damages. In other words the questions whether the termination is wrongful or not or whether the Respondent was not justified in terminating the agreement are yet to be decided. However from the facts of the case there is no manner of doubt that the contract was by its very nature terminable in terms of the contract between the parties themselves.” 23. To our mind therefore the decisions in Narendra Hirawatand Jumbo World Holdings Ltd.will not come to the aid and assistance of the respondent PJT. 24. The Articles and Clauses of the CA leave no manner of doubt that the CA is determinable. Just as in Indian Oil Corporation Ltd.both parties have been given a right to seek termination of the CA by issuing a notice under Article 37 and specifically Clause 37.1.2.and Clause 37.2.2 (COMM) 55 2021 25. If the NHAI issues the termination notice then they have to send a copy of the same to the Senior Lenders under Clause 37.1.3 so that they could either make a representation disclosing their intention to substitute the concessionaire or procure that the default specified in the notice would be cured within a period of 180 days so that after the defaults were cured the Authority could withdraw the notice of termination and restore all rights to the concessionaire. It is also necessary to note that there is also a termination provided under Article 36. When suspension is not revoked within 180 days then automatically there would be a “deemed termination by mutual agreement”. Thus if the NHAI suspends the right of the concessionaire and neither the concessionaire i.e. the respondent PJT removes the defects within 90 days nor the NHAI revokes the suspension within a period of 180 days then without anything being done by either side i.e. curing of the defaultswithin 90 days and revocation of suspension within 180 days the CA is automatically terminated. 27. The CA being a determinable contract under the provisions of Section 14(1)(c) of the SRA no injunction could have been issued for howsoever short a duration and the impugned order to the extent it directs that the termination notice dated 5th March 2021 be kept in abeyance is against the settled law and the principles enunciated in Wander Ltd. supra) will not come in the way of this Court interfering with the same. 28. Much stress has been laid on behalf of the respondent PJT on the ‘Doctrine of Election’ and on the argument that the NHAI having FAO(OS)55 2021 exercised its option under Article 36 to suspend the rights of the respondent concessionaire had to follow that route alone and could not then seek to exercise its option under Article 37 to terminate the CA on the basis of the concessionaire default. The ‘Doctrine of Election’ postulates that when two remedies are available for the same relief the aggrieved party has the option to elect either of them but not both. A party cannot be permitted to approbate and reprobate. The principle has been stated in White and Tudor s Leading Cases in Equity Vol. 18th Edn. at p. 444 as follows: “Election is the obligation imposed upon a party by courts of equity to choose between two inconsistent or alternative rights or claims in cases where there is clear intention of the person from whom he derives one that he should not enjoy both…. That he who accepts a benefit under a deed or will must adopt the whole contents of the 29. Similarly in P.R. Deshpande v. Maruti Balaram Haibatti 6 SCC 507 it was held as under: “8. The doctrine of election is based on the rule of estoppel — the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppel in paiswhich is a rule in equity. By that rule a person may be precluded by his actions or conduct or silence when it is his duty to speak from asserting a right which he otherwise would have had.” 30. These cases have been referred to by the Supreme Court in National Insurance Co. Ltd. v. Mastan & Anr. 2 SCC 641. FAO(OS)55 2021 Apart from the fact that the said case related to a situation where the cause of action arose under two different Statutes namely the Workmen’s Compensation Act 1923 and the Motor Vehicles Act 1988 and under Section 167 of the Motor Vehicles Act it was made clear that no claimant would be entitled to file a claim under both these Statutes and the claimant had to exercise a clear option of proceeding under either of the Acts before the Forum concerned the language of the contract between the parties namely the CA is unequivocal and clear that the right of suspension does not extinguish the right to terminate. Clause 36.1 may be usefully reproduced herein below: “36.1 Suspension upon Concessionaire Default Upon occurrence of a Concessionaire Default the Authority shall be entitled without prejudice to its other rights and remedies under this Agreement including its rights of Termination hereunder tosuspend all rights of the Concessionaire under this Agreement including the Concessionaire s right to collect Fee and other revenues pursuant hereto and exercise such rights itself or authorise any other person to exercise the same on its behalf during such suspension days from the date of issue of such notice provided that upon written the Lenders the Concessionaire and Representative the Authority shall extend the aforesaid period of 180 days by a further period not exceeding 90days.” 31. This Court is therefore of the view that the ‘Doctrine of Election’ FAO(OS)55 2021 is not attracted to the present case. 32. Nor is it possible for this Court to accept the interpretation placed on Article 36 and Article 37 by the learned senior counsel for the respondent PJT as being mutually exclusive and that the NHAI was bound to wait till the expiry of 180 days before taking any steps for termination. The language used in the two Articles shows that the exercise of power under both the Articles was available to all parties including the Senior Lenders. The period of 180 days provided under Clause 36.1 is an outer limit and must be read in conjunction with Clause 36.3 which provides for revocation of the suspension. It is clear from Clause 36.3.2 that if the concessionaire cures the concessionaire default within a period of “not exceeding 90 days” from the date of suspension the NHAI was mandatorily required to revoke the suspension forthwith. 33. 180 days become available only if the Senior Lenders seek that period as provided under Clause 36.4 and under Clause 37.1.3. If there is a joint request by the concessionaire and the Senior Lenders this period of 180 days could be extended up to a further period of 90 days under Clause 36.1. This is to enable the Senior Lenders to undertake two courses of action. One is to ensure that the defaults are cured within the said period. The second is to enable them to take steps for substituting the concessionaire. If no such request has been made on behalf of the Senior Lenders for time then clearly the 180 days provided under Clause 36.1 is only a maximum time period for the continuation of the suspension of the rights of the concessionaire respondent PJT to collect revenue etc.. It does not mean that the NHAI would not be able to terminate the CA despite the respondent PJT having not cured the FAO(OS)55 2021 defaults and in the absence of any request from the Senior Lenders for extended time to enable substitution. In the instant case the Lenders had sent the letter dated 16th February 2021 expressing concurrence with the termination of the CA in case defaults were not cured within the 90 days granted to the concessionaire by the NHAI. In other words the NHAI could exercise its right to terminate the CA from the 91st day onwards. 34. There is weight in the argument of the learned Solicitor General that the two Articles form a “composite scheme” leading to the termination of the contract. This is evident from the fact that even under Article 37 when a concessionaire default occurs and the NHAI issues NIT under Clause 37.1.2 it is required to send a copy to the Senior Lenders under Clause 37.1.3 granting 15 days’ time to the Senior Lenders’ representative to make a representation on behalf of the Senior Lenders stating their intention to substitute the concessionaire in accordance with the Substitution Agreement. On receipt of such representation on behalf of the Senior Lenders the NHAI in its discretion can either withhold Termination for a period not exceeding 180 days from the date of such representation or exercise its right of Suspension as the case may be for enabling the Lenders Representative to exercise the Senior Lenders right of substitution in accordance with the Substitution Agreement. 35. This makes it very clear that the right of suspension is in addition to the right to terminate and even after the Termination Notice is issued under Article 37 on request of the Senior Lenders the NHAI could go back to Article 36 to invoke suspension. It is thus clear that Articles 36 and 37 do not work in independent silos. FAO(OS)55 2021 36. Similarly Article 36 incorporates a Clause namely Clause 36.5 dealing with “Termination” which reads as under: “36.5.1 At any time during the period of Suspension under this Article 36 the Concessionaire may by notice require the Authority to revoke the Suspension and issue a Termination Notice. Subject to the rights of the Lenders Representative to undertake substitution in accordance with the provisions of this Agreement and within the period specified in Clause 36.4:the Authority shall within 15 fifteen) 4 days of receipt of such notice terminate this Agreement under and in accordance with Article 37. 36.5.2 Notwithstanding anything to the contrary contained in this Agreement in the event that Suspension is not revoked within 180days from the date of Suspension hereunder or within the extended period if any set forth in Clause 36.1 the Concession Agreement shall upon expiry of the aforesaid period be deemed to have been terminated by mutual agreement of the Parties and all the provisions of this Agreement shall apply mutatis mutandis to such Termination as if a Termination Notice hid been issued by the Authority upon occurrence of a Concessionaire Default.” It may be noticed from this Clause that during the suspension period the concessionaire respondent has also been given a right to seek termination of the agreement. To this end it must give a notice asking the NHAI to revoke the suspension and issue a termination notice in accordance with Article 37. This would indicate that the invocation of the right to suspend by the NHAI does not put an end to its rights or the rights of the concessionaire respondent PJT to seek the termination under Article 37 during the very period of suspension. But if the termination FAO(OS)55 2021 occurs under Clause 36.5.2 there is no need to issue a separate notice under Article 37 as upon expiry of 180 days or extended period on request of the Senior Lenders along with the concessionaire if suspension has not been revoked the CA is “deemed to have been terminated by mutual agreement of the parties” and all consequences would follow as if pursuant to Termination Notice issued by the NHAI upon occurrence of concessionaire default i.e. under Article 37. 38. Thus there is no ground to hold that the two Articles are mutually exclusive and exercise of one right forecloses the right under the other 39. The next question is whether even if the Articles are not mutually exclusive whether the termination would have had to wait for the expiry of 180 days. In this regard the only limitation that can be read in case of suspension of concessionaire rights under Article 36 is that no termination can be effected for 90 days as the concessionaire has the right to seek revocation if the default is cured within a period not exceeding 90 days. Vide the letter dated 16th February 2021 since the Senior Lenders had also concurred with the termination once the defects were not cured within 90 days therefore there was no requirement of waiting for 180 days before terminating the CA. Even otherwise situations may arise such as insolvency of the concessionaire or other inability on the part of the concessionaire to cure the defaults and there may be a situation when in public interest the CA may have to be terminated much before 180 days. 40. Learned senior counsel did submit that even if the power to FAO(OS)55 2021 terminate before the expiry of 180 days is acknowledged since none of the extreme situations of the company being rendered insolvent or being wound up or any such cause existed in the instant case the decision to terminate was mala fide and could not be justified. To this end he referred to the communications appreciating the good maintenance of the roads by the respondent PJT. 41. Per contra the learned Solicitor General directed our attention to communications from different departments authorities placed on the record as Annexure A 4 and Annexure A 10 highlighting the high rate of accidents and fatalities that were occurring on the highway under maintenance and operation of the respondent PJT. The inspection reports of the I.E. dated 2nd June 2020 11th June 2020 16th June 2020 etc. have been relied upon by the NHAI to show that the maintenance was not in order and that the respondent PJT had caused concessionaire defaults. Of course the respondent PJT has relied on the letter of the I.E. dated 21st September 2020 to claim that the highway was in a good condition. 42. While this Court would like to record that this is one of the rare cases where it has noticed that the NHAI seeks to take action for lapses in maintenance leading to accidents and public misfortune we need to note that the question of whether the maintenance was good or bad or indifferent is not a subject matter of a Section 9 petition and therefore the present appeal. As rightly pointed out by the learned Solicitor General if the termination was unwarranted the respondent PJT is entitled to seek damages and monetary compensation. FAO(OS)55 2021 43. This Court is therefore unable to agree with the observation of the learned Single Judge that the NHAI is estopped from exercising its rights of termination under Article 37 or that even under Article 36 it is required to mandatorily await the lapse of 180 days before termination can occur or that once suspension has been invoked the termination can only be on the efflux of 180 days. We are therefore unable to agree with this observation of the learned Single Judge that the Termination Notice could not have been issued by the NHAI on 5th March 2021 or that it had to wait till June 2021. 44. For the above reasons we allow the present appeal and set aside the impugned order dated 12th March 2021 and vacate the stay granted by the learned Single Judge. Since the Section 9 petition being O.M.P.(I) COMM.) 98 2021 filed by the respondent PJT seeks the same relief in the light of our discussion we hold that nothing survives in the said application which also stands dismissed vide this order. 45. All other pending applications stand disposed of. ASHA MENON J MANMOHAN J APRIL 13 2021 s FAO(OS)55 2021

The court can reduce the quantum of punishment of a convict, upon its discretion: Hight Court of Orissa.

Where the convict had undergone half of his sentence that was imposed on him, the court may upon its discretion reducing the quantum of sentence to the period already undergone by the convict, provided that such does not hamper in providing Justice. A single Judge bench comprising Hon’ble Justice D. Dash, in the matter of Dhuleshwar @ Dhula Mohapatra Vs. State of Orissa (CRA NO.11 OF 1999), dealt with an issue where the appellant filed an appeal, assailing the judgement of conviction and order of sentence passed by sessions judge, Khudra at Bhubaneswar. The appellant faced the trial for the offence punishable under section 498-A/302/201 read with section 34 of the Indian Penal Code (in short, ‘the IPC’) had been convicted for commission of offence under section 498-A of the IPC. The appellant was sentenced to rigorous imprisonment for a period of one month. In the present case the appellant had married Annapurna and in the year 1981 and it was said that during the said marriage, cash, gold ornament, brass and bell metal utensils and other household articles had been given as dowry. Further after 6 to 7 months, the prosecution compelled Annapurna to bring one tv from her parents and for the fulfilment of the same, the prosecution left Annapurna at her parents’ place. Annapurna returned to her matrimonial house knowing that in her absence all her ornaments were sold by the accused. Thereafter she was also tortured and was not provided proper food. Failing to tolerate such a situation, Annapurna returned to her parental house. It was also alleged that the accused later married another woman and begot Annapurna and their children. Annapurna initiated a proceeding claiming maintenance. Annapurna and her son were brought back to the matrimonial house which was objected to by the second wife, and then on 22.1.1993, the parents of Annapurna were informed that their daughter had died, after having tea. On suspicion of that, an FIR was lodged in the nearby police station and an investigation was initiated, upon which the accused with 5 other family members were placed for Trial for the commission of offence under section 498-A/302/201 read with section 34 IPC. The trial court held the accused guilty of commission of offence under section 498-Aof the IPC and, acquitted him of other charges. All other accused were also acquitted of other charges. Hence, the present Appeal is at the instance of the Appellant. The counsel for the Appellant stated that the court erred in accepting the guilt upon the accused, as he stated that the evidence to establish the factum of cruelty that had been meted out at Annapurna were highly discrepant and that aspect had been stated by all the witnesses in a general manner without citing any specific instance. Further, the counsel also pointed out that the accused had covered half the sentence already and there prays to the court to reduce the quantum of sentence to the period already undergone by the appellant. The Additional Government Advocate on the other hand submitted that the evidence of all the witnesses on the score was wholly consistent and was clear, cogent and acceptable and also stated the Trial Court had rightly answered the point that this accused-husband had tortured, harassed and subjected his wife Annapurna to cruelty.  After taking an overall view the court “reduced the rigorous imprisonment for a period of one year to the period already undergone as that in the facts and circumstances would meet the ends of justice”. Click Here For The Judgement  

IN THE HIGH COURT OF ORISSA AT CUTTACK CRA NO.11 OF 1999 From the judgment of conviction and order of sentence dated learned. Sessions Judge Khurda at 23.12.1998 passed by Bhubaneswar in S.T. Case No.898. Dhuleswar @ Dhula Mohapatra versus Appellant State of Orissa Appeared in this case by Video Conferencing Mode: For Appellant Mr.G.K.Mohanty G.P.Samal B.P.Pradhan S.R. Swain D.K.Nanda P.C.Mohanty and P.K.Panda For Respondent Mr. Soubhagya Ketan Nayak Additional Government Advocate MR. JUSTICE D.DASH D. Dash J HEARING & JUDGMENT :09.07.2021 1. The Appellant by filing this Appeal has assailed the judgment of conviction and order of sentence dated 23.12.1998 passed by the learned Sessions Judge Khurda at Bhubaneswar in S.T. Case No.898. The Appellant having faced the Trial for the offence punishable under section 498 A 302 201 read with section 34 of the Indian Penal Codehas been convicted for commission of offence under section 498 A of the IPC. Accordingly he has been sentenced to undergo R.I. for a period of one year. 2 The prosecution case in short is that the Appellant had married Annapurna in the year 1981 and it is said that during said marriage cash gold ornament brass and bell metal utensils and other household articles had been given as dowry. It is the further case of the prosecution that six to seven months after the marriage the accused demanded more dowry and compelled Annapurna to bring one TV from her parents and in order to fulfill that mission left Annapurna at her father’s place. After some time Annapurna returned to her matrimonial house when she found that all her gold ornaments etc. had been sold by the accused. It is also stated that Annapurna was tortured thereafter being not provided with food. She then returned to her father’s house being not able to tolerate the situation any more in the house of the accused. It is next alleged that this accused without bringing Annapurna back or making any attempt in that regard accepted another wife and kept her in his house and through her he begot two children. For that Annapurna had initiated a proceeding claiming maintenance. After that accused Dhuleswar brought Annapurna with her son back which was objected to by the second wife. On 22.1.1993 parents of Annapurna were informed that their daughter had died. So they rushed to the house of the accused. The explanation with regard to the death as offered by family members was that having taken tea Annapurna met her death. The dead body however by that time had been cremated. Being suspicious of said death of Annapurna information was lodged at Balipatna Police Stations. Police having received the information registered Balipatna P.S. Case No.93 and took up investigation. On completion of investigation this accused with five others which include the family member of the accused were placed for Trial by submission of charge sheet for commission of offence under section 498 A 302 201 read with section 34 3 In the Trial the prosecution has examined in total five witnesses. From the side of the defence one witness has also been examined. Besides the above the prosecution has proved the FIRseizure list Ext.2) and forwarding letterThe Trial Court on examination of the evidence of the prosecution witnesses and upon their evaluation at its level has held this accused guilty of commission of offence under section 498 Aof the IPC. He has been acquitted of other charges. All other accused person stood acquitted of the charges. Hence the present Appeal is at the instance of the 4. Mr.G.K.Mohanty learned counsel for the Appellant submits that the appreciation of evidence by the Trial Court in recording the finding of guilt as against this accused for commission of offence under section 498 A IPC is perverse. He submits that the Trial Court ought not to have accepted the omnibus nature of evidence in coming to a conclusion that the accused has subjected his wife Annapurna to cruelty. According to him the evidence to establish the factum of cruelty said to have been meted out at Annapurna are highly discrepant and that aspect being stated by all the witnesses in a general manner without citing any specific instance attributing the role of the accused therein the Trial Court erred in accepting the same to fasten the guilt upon the accused for commission of offence under section 498 A of IPC. He therefore urges for setting aside the finding of guilt of the accused as has been recorded by the Trial It is stated that at the time of Trial the accused was aged around 41 years and at present he is around 64 years of age and earning hand to mouth by cultivation. He further submits that the accused has remained in custody in the case from 29.03.1993 to 15.09.1993 which covers nearly 4 half of the sentence imposed. He therefore alternatively submits that in the event this Court does not feel inclined to interfere with the judgment of conviction it is a fit case to interfere with the order of sentence by reducing the quantum of sentence to the period already undergone by the Appellant. Mr. S.K.Nayak learned Additional Government Advocate submits all in favour of the finding recorded by the Trial Court that it is accused who had subjected his wifeto cruelty. According to him the evidence of all the witness on the score are wholly consistent and those being clear cogent and acceptable the Trial Court has rightly answered the point that this accused husband had tortured harassed and subjected his wife Annapurna to cruelty. In the backdrop of the submission as above this Court is now called upon to have relook at the evidence on record so as to judge the sustainability of the finding rendered by the Trial Court on the score. P.W.2 is the grandmother of the deceased. She has stated that since accused assaulted Annapurna she was compelled to come to their house and at that time she was carrying five months old child in her womb. It is also stated that during her stay in their house she gave birth to a son and for ten years she continued to stay there. She has further stated that the accused kept a mistress during this period. It is also the evidence of P.W.3 who is a co villager of P.W.1 that after marriage Annapurna gave birth to her daughter at her place of stay away from the house of the accused and thereafter the accused brought her back to his house where again the disturbances started. The brother of the deceased who is a Doctor by profession has come to the witness box as P.W.1. He has narrated in detail with regard to demand of dowry etc. as also the subjection of his sister Annapurna to cruelty by this accused. 5 Fact remains that shortly after the marriage Annapurna had to leave her matrimonial home and at that time she was pregnant. In that situation it is ordinarily not expected from a married woman to leave the company of her husband unless she was uncared for and ill treated is not offering is any explanation as to Annarpurna’s leaving her marital home and staying at her father’s place at that point of time and there continuing for a long time. The accused appears to have woken up from deep slumber having enjoyed his life with the mistress begetting the children through her only when Annapurna initiated a proceeding claiming maintenance against him as it was not so tolerated by her any more. There is no evidence eon record to show that any point of time the accused had provided maintenance in any form to Annapurna during her long stay away from her matrimonial home. The evidence on record being together with circumstances as afore discussed provide all the reasons and justifications to hold that the finding rendered by the Trial Court that Annapurna had been subjected to cruelty by this Accused who happens to be her husband is well in order. For the aforesaid this Court is led to affirm the finding of guilt of the accused for commission of offence punishable under section 498 A of the IPC. Coming to the alternative submission of the learned counsel for the Appellant it is seen that there has been lapse of about 28 years since the institution of the case and the accused by now is aged about 63 years. Record further reveals that he being arrested in the case on 29.3.1993 was finally released on bail by the order of this Court on 15.09.1993 which nearly covers half of the sentence imposed by the Trial Court. Taking an overall view of the matter this Court feels inclined to accept the 6 submission of the learned counsel for the Appellant as to the modification of the sentence as imposed by the Trial Court i.e. by reducing the rigorous imprisonment for a period of one year to the period already undergone as that in the facts and circumstances would meet the ends of justice. In the result the judgment of conviction recorded against the Appellant for commission of offence punishable under section 498 A IPC being maintained he is sentenced to the period already undergone. The CRA thus stands allowed in part to the extent as indicated above with the modification of the sentence as aforesaid. The bail bonds executed by the accused shall stand discharged. As the restrictions due to resurgence of COVID 19 situation are continuing learned counsel for the parties may utilize a printout of the order available in the High Court’s website at par with certified copy subject to attestation by the concerned advocate in the manner prescribed vide Court’s Notice No.4587 dated 25th March 2020 as modified by Court’s Notice No.4798 dated 15th April 2021. Judge

The document is Unreliable and the Document does not Bind the Person are Different Concepts: Supreme Court of India

The signatures in the translated copy do not tally with the Urdu copy is not sufficient reason to hold the surrender letter as unreliable as the translation can be incorrect but the correctness of the document in had not been disputed. This auspicious judgement was passed by Supreme Court of India in the case of Kiran Devi vs. The Bihar State Sunni Wakf Board & ors. [CIVIL APPEAL NO. 6149 OF 2015] by The Hon’ble Justice Sanjay Kishan Kaul. The present appeal was filed challenging an order passed by the High Court of Judicature at Patna whereby a writ petition was filed, holding that the Karta was not competent to surrender the tenancy rights in favour. The basis of such declaration by plaintiff was that, the great grandfather of the plaintiff, predeceased his brother who died issueless and his widow predeceased him. The brother handed over the possession of the hotel business to his nephew, the grandfather of the plaintiff. After his death, succeeded to tenancy as members of the Joint Hindu Family. On account of disputes over the management, the hotel was closed and it remain closed for several years. It was the plaintiff who wanted to resume the hotel business in the premises in question and thus communicated with the Wakf Board to continue the hereditary tenancy of the shop as Karta in his name. The cause of action was stated to arise when the plaintiff’s grandfather along with others broke the lock of the suit premises and removed the belongings available in the shop. The judgment of the Tribunal was set aside High Court and also a direction was issued to dispossess the appellant from the suit premises and to handover the vacant possession of the suit premises to the plaintiff. The court opinioned that, “the petition styled as one under Article 226 would not bar the High Court to exercise jurisdiction under the Act and/or under Article 227 of the Constitution. The jurisdiction of the High Court to examine the correctness, legality and propriety of determination of any dispute by the Tribunal is reserved with the High Court. The nomenclature of the proceedings as a petition under Article 226 or a petition under Article 227 is wholly inconsequential and immaterial.”

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6149 OF 2015 THE BIHAR STATE SUNNI WAKF BOARD JUDGMENT HEMANT GUPTA J The challenge in the present appeal is to an order passed by the High Court of Judicature at Patna dated 6.2.2013 whereby a writ petition filed by respondent No. 41 herein was allowed holding that the tenant in the premises in question was representing a Hereinafter referred to as the ‘plaintiff’ joint Hindu family and that the Karta was not competent to surrender the tenancy rights in favour of respondent No. 1 The Bihar State Sunni Wakf Board2 and consequently the induction of the appellant as a tenant by the Wakf Board was illegal Accordingly a direction was issued to dispossess the appellant from the suit premises and to handover the vacant possession to the plaintiff. The plaintiff had filed a suit for declaration before the competent civil court stating that he is a tenant in the suit premises and is entitled to continue in the suit premises as a tenant on payment of monthly rent. The basis of such declaration was that Ram Sharan Ram the great grandfather of the plaintiff predeceased his brother Ram Sewak Ram who died issueless and his widow predeceased him. Ram Sewak Ram was carrying out joint family business of hotel in the premises of the Wakf Board. Due to advanced age he handed over the possession of the hotel business to his nephew Devendra Prasad Sinha the grandfather of the plaintiff. The grandfather of the plaintiff succeeded to the tenancy as member of the joint Hindu family. After his death defendant Nos. 1 to 3 succeeded to tenancy as members of the Joint Hindu Family. The shop was being run by Surendra Kumar son of Devendra Prasad Sinha when the grandfather of the plaintiff fell ill. Surendra Kumar the father of the plaintiff started Hereinafter referred to as the ‘Wakf Board’ paying rent to the Wakf Board. However Surendra Kumar later joined service and the hotel was being run through the servants The plaintiff had started running the hotel since 1988. On account of disputes over the management the hotel was closed and it remain closed for several years. It is the plaintiff who wanted to resume the hotel business in the premises in question and thus communicated with the Wakf Board to continue the hereditary tenancy of the shop as Karta in his name. The cause of action was stated to arise on 21.3.1996 when the plaintiff’s grandfather along with others broke the lock of the suit premises and removed the belongings available in the shop. The father of the plaintiff went to the Police for lodging of the report but they refused to register the case. A complaint was subsequently filed in the court of Chief Judicial Magistrate Patna which is stated to be pending. Later the plaint was amended and the present appellant was impleaded as defendant No. 5 alleging that the lease in her favour by the Wakf Board is forged fabricated anti dated and collusive paper The Wakf Board in its written statement asserted that Md Salimuddin was the duly appointed Mutawalli of the Janki Bibi Wakf Estate No. 465B and the appellant is a tenant duly inducted by the Management Committee. It was also pleaded that the defendants had no knowledge that Ram Sewak Ram was carrying any business of hotel but that Devendra Prasad Sinha was a tenant in the suit premises who had surrendered his tenancy rights in favour of Md. Salimuddin through a written letter dated 31.5.1996 and thereafter handed over vacant possession of the premises Subsequently the appellant had been inducted as a tenant on a monthly rent of Rs.600 on 5.6.1996. This was also indicated in the written statement filed by the appellant herein. In a separate written statement filed on behalf of defendant Nos. 1 and 2 it was asserted that defendant No. 1 was making payment of rent to the landlord i.e. Mutawalli of the Wakf and that he had surrendered the shop premises on 31.5.1996 to the landlord Mutawalli of the Wakf as he was unable to continue the business due to old age. It was denied that the plaintiff and his father went to lodge FIR on account of opening of the locks by defendant No. 1. It was asserted that the plaintiff had no occasion of claiming the shop on 21.3.1996 as the said shop was never in his possession nor under his lock and key. The appellant and the Wakf Board filed applications before the Civil Court for transfer of the suit for adjudication by the Wakf Tribunal in terms of provisions of Section 85 and 85A of the Wakf Act 19953. The suit was thus transferred by the learned Munsif on 4.2.2009. Such order of transfer of the suit to the Tribunal was challenged by the plaintiff by way of a revision petition before the For short the ‘Act’ Patna High Court. Such revision was found to be frivolous and dismissed on 19.5.1999 with cost of Rs.3 000 The parties went to trial on the following issues before the Wakf “(i) Whether Devendra Prasad was running a joint family ii) Whether Devendra Prasad as Karta of joint family business has got authority to surrender the joint family iii) Whether Devendra Prasad surrendered joint family business or premises of joint family business iv) Whether the plaintiff is entitled to any other relief ” Devendra Prasad Sinha appeared as DW 5 whereas Dilip Kumarappeared as DW 14 before the Wakf Tribunal. The said witnesses supported their stand that the tenancy was surrendered on 31.5.1996. The learned Tribunal held that defendant No. 1 was running a hotel business and had later surrendered the shop to Mutawalli. The writing on paper to surrender the possession was admitted by the witness. It was also observed that there was no oral or documentary evidence that Devendra Prasad Sinha had surrendered the premises where he was running joint family business. The Tribunal noted that the plaintiff did not even suggest that Devendra Prasad was managing a joint family business and thus in the absence of such suggestion it was difficult or rather impossible to believe that Devendra Prasad was managing a joint family business. Consequently the suit was dismissed. The High Court in a writ petition against the said order held that the suit premises were let out to Ram Sewak Ram who carried out joint family hotel business in the said premises until his death in January 1960. Thereafter defendant No. 1 became the Karta and succeeded to joint family business including the suit premises. It was observed that he could not have surrendered the tenancy in favour of Mutawalli on 31.5.1996 without the consent of other members of the joint family. Consequently the judgment of the Tribunal was set aside and also a direction was issued to dispossess the appellant from the suit premises and to handover the vacant possession of the suit premises to the plaintiff Learned counsel for the appellant has raised the following That the Tribunal had no jurisdiction to entertain the suit filed by the plaintiff in view of the judgment of this Court in Ramesh Gobindramthrough LRs. v. Sugra Humayun Mirza Wakf4. After the aforesaid Judgment the Wakf Act was amended by Central Act No. 213. This Court recently in Punjab Wakf Board v. Sham Singh 8 SCC 726 Harike5 has considered the amendment in the Act wherein the proceedings instituted prior to the amendment were to continue as per the unamended provisions of the Act Therefore a suit for declaration of the plaintiff as a tenant was not maintainable before the Wakf Tribunal as there was no estoppel against the statute and that the consent would not confer jurisdiction on the Wakf Tribunal which it did not have in view of the judgments referred The order of the Wakf Tribunal could not be challenged by way of writ petition before the High Court under Article 226 of the Constitution of India as only a revision in terms of proviso to sub sectionof Section 83 of the Act could be preferred. Learned counsel for the appellant relies on judgment reported as Sadhana Lodh v Insurance Co. Ltd. & Anr.6 and of Patna High Court in Md. Wasiur Rahman & Anr v. The State of Bihar The High Court could not have reappreciated facts in a petition under Article 227 of the Constitution. The High Court has illegally set aside findings of fact recorded by the Wakf Tribunal. The reliance was placed on Chandavarkar Sita Ratna Rao v. Ashalata S. Guram8. It was also argued that 4 SCC 698 3 SCC 524 CWJC No. 146217 dt. 25.04.2018 4 SCC 447 in petition under Article 226 or 227 of the Constitution no interference is permitted in tenancy matter. Reference was made to Ganpat Ladha v. Sashikant Vishnu Shinde9 to support the said contention The surrender of possession of the tenanted premises by defendant No. 1 was not of a business of joint Hindu family but of the tenancy which was not been carried out for large number of years even as admitted by the plaintiff Even if it was assumed that defendant No. 1 was a Karta of the joint Hindu family he had the right to surrender the tenancy without the consent of the other coparceners as such surrender was for the benefit of the family inter alia for the reason that no business was carried out for the last many years. 10. On the other hand Mr. Sanyal learned counsel for the plaintiff ar gued that the nomenclature as to whether the jurisdiction of the High Court under Article 226 of the Constitution of India is invoked or the jurisdiction in terms of the proviso to sub sectionof Sec tion 83 of the Act is invoked is immaterial as the jurisdiction in ei ther case is that of the High Court. The nomenclature in exercise of the jurisdiction does not render the order passed by the High Court to be illegal or unwarranted or beyond jurisdiction. Refer 2 SCC 573 ence was made to Pepsi Foods Ltd. & Anr. v. Special Judicial Magistrate & Ors.10 It was further argued that Ram Sewak Ram was inducted as a ten ant and therefore the plaintiff has a right by birth in the tenancy which could not be surrendered by the then Karta defendant No. 1 without the consent of the other coparceners. Since the posses sion was delivered to the appellant as a consequence of illegal sur render of tenancy rights therefore the order of the High Court is just and proper. Mr. Sanyal referred to Full Bench judgment of the Allahabad High Court reported as Ram Awalamb & Ors. v. Jata Shankar Ors.11 to contend that the personal law of Hindus regarding the devolution of joint Hindu family property is applicable to tenanted property also. Reference was also made to a judgment of this Court reported as Commissioner of Income Tax Madhya Pradesh v. Sir Hukamchand Mannalal & Co.12 that members of Hindu Undivided Family can enter into contract with a stranger. 13. We have heard learned counsel for the parties and find that it is not open to the appellant at this stage to dispute the question that the suit filed before the learned Munsif could not have been transferred to the Wakf Tribunal. The plaintiff had invoked the jurisdiction of the Civil Court in the year 1996. It is the Wakf Board 10 5 SCC 749 11 AIR 1969 All. 526 12 2 SCC 352 and the appellant who then filed an application for transfer of the suit to the Wakf Tribunal. Though in terms of Ramesh Gobindram the Wakf Tribunal could not grant declaration as claimed by the plaintiff but such objection cannot be permitted to be raised either by the Wakf Board or by the appellant as the order was passed by the Civil Court at their instance and was also upheld by the High Court. Such order has thus attained finality inter parties. The parties cannot be permitted to approbate and reprobate in the same breath. The order that the Wakf Tribunal has the jurisdiction cannot be permitted to be disputed as the parties had accepted the order of the civil court and went to trial before the Tribunal. It is not a situation where plaintiff has invoked the jurisdiction of the Wakf Tribunal The argument raised by the learned counsel for the appellant that there was no estoppel against the statute as consent could not confer jurisdiction upon the Authority which did not originally have jurisdiction. Hence it was submitted that the decision of the Tribunal was without jurisdiction. It is to be noted that the plaintiff had filed proceedings before the Civil Court itself but the same was objected to by the appellant as well as by the Waqf Board Thus it is not conferment of jurisdiction by the plaintiff voluntarily but by virtue of a judicial order which has now attained finality between parties. The suit was accordingly decided by the Waqf Tribunal. We do not find that it is open to the appellant to raise the objection that the Waqf Tribunal had no jurisdiction to entertain the suit in the facts of the present case. Therefore we do not find any merit in the first argument raised by the learned counsel for To appreciate the second argument the relevant provisions of Section 83 and sub section of Section 83 of the Act are “83. Constitution of Tribunals etc. The State Government shall by notification in the Official Gazette constitute as many Tribunals as it may think fit for the determination of any dispute question or other matter relating to a waqf or waqf property eviction of a tenant or determination of rights and obligations of the lessor and the lessee of such property under this Act and define the local limits and jurisdiction of such Tribunals 9) No appeal shall lie against any decision or order whether interim or otherwise given or made by the Provided that a High Court may on its own motion or on the application of the Board or any person aggrieved call for and examine the records relating to any dispute question or other matter which has been determined by the Tribunal for the purpose of satisfying itself as to the correctness legality or propriety of such determination and may confirm reverse or modify such determination or pass such other order as it may think fit.” The judgments referred to by the appellant in Sadhana Lodh and of Patna High Court in Md. Wasiur Rahman are not applicable to the facts of the present appeal. Sadhana Lodh is a judgment wherein an award of the Motor Accident Claim Tribunal was challenged by way of a Writ Petition. This Court held that the Writ Petition was not maintainable when an alternative remedy is provided under a statute. Therefore the said judgment deals with availability of the writ jurisdiction in view of the remedy of appeal provided. In the present case the statute provides for a remedy under proviso of sub sectionof Section 83 of the Act against an order passed by the Wakf Tribunal. Such remedy is before the High Court alone. The judgment in Md. Wasiur Rahman arises out of the fact where the order of the Waqf Tribunal was challenged by way of a Writ Petition. An objection was raised before the writ court that there was an alternative statutory remedy available therefore the Writ Petition was not maintainable. The learned Single Judge held that a petition under Article 226 227 of the Constitution of India was not maintainable but liberty was given to the petitioners to invoke the jurisdiction in terms of proviso to sub section of Section 83 of the Act. The said judgment does not show that any argument was raised that a petition under Article 226 227 of the Constitution of India could be treated as a petition in terms of proviso to sub sectionof Section 83 of the Act. Therefore such judgment is also not relevant for the question arising for consideration in the present appeal. A perusal of the proviso to sub sectionof Section 83 of the Act shows that it confers power on the High Court to call for and ex amine the records relating to any dispute question or other mat ter which has been determined by the Tribunal for the purpose of satisfying itself as to the correctness legality or propriety of such determination. In fact the statutory provision is acceptance of the principle that the jurisdiction of the High Court under Article 226 or 227 of the Constitution of India cannot be curtailed in terms of L. Chandra Kumar v. Union of India & Ors.13. The rel evant extract reads thus: “90. We may first address the issue of exclusion of the power of judicial review of the High Courts. We have already held that in respect of the power of judicial review the jurisdiction of the High Courts under Articles 226 227 cannot wholly be excluded. …. On the other hand to hold that all such decisions will be subject to the jurisdiction of the High Courts under Articles 226 227 of the Constitution before a Division Bench of the High Court within whose territorial jurisdiction the Tribunal concerned falls will serve two purposes. While saving the power of judicial review of legislative action vested in the High Courts under Articles 226 227 of the Constitution it will ensure that frivolous claims are filtered out through the process of adjudication in the Tribunal. The High Court will also have the benefit of a reasoned decision on merits which will be of use to it in finally deciding the matter 91. …We have already emphasised the necessity for ensuring that the High Courts are able to exercise judicial superintendence over the decisions of the Tribunals under Article 227 of the Constitution. In R.K. Jain case4 SCC 119 : 1993 SCC1128 :25 ATC 464] after 13 3 SCC 261 taking note of these facts it was suggested that the possibility of an appeal from the Tribunal on questions of law to a Division Bench of a High Court within whose territorial jurisdiction the Tribunal falls be pursued. It appears that no follow up action has been taken pursuant to the suggestion. Such a measure would have improved matters considerably. Having regard to both the aforestated contentions we hold that all decisions of Tribunals whether created pursuant to Article 323 A or Article 323 B of the Constitution will be subject to the High Court s writ jurisdiction under Articles 226 227 of the Constitution before a Division Bench of the High Court within whose territorial jurisdiction the particular Tribunal falls.” A three Judge Bench in a judgment reported as Radhey Shyam Anr. v. Chhabi Nath & Ors.14 held that the observations in para 25 of the judgment in Surya Dev Rai v. Ram Chander Rai Ors.15 to be not good law. In Surya Dev Rai it was held that the order of Civil Court could be challenged in a petition under Article 226 and that the distinction between Articles 226 and 227 of the Constitution of India stood almost obliterated. This Court in Radhey Shyam held: “27. … we are of the view that judicial orders of civil courts are not amenable to a writ of certiorari under Article 226 We are also in agreement with the view 5 SCC 616] of the referring Bench that a writ of mandamus does not lie against a private person not discharging any public duty. Scope of Article 227 is different from Article 226 29. Accordingly we answer the question referred as 14 5 SCC 423 15 6 SCC 675 29.1. Judicial orders of the civil court are not amenable to writ jurisdiction under Article 226 of the Constitution 29.2. Jurisdiction under Article 227 is distinct from jurisdiction under Article 226 29.3. Contrary view in Surya Dev Rai6 SCC 675] is overruled.” Therefore when a petition is filed against an order of the Wakf Tri bunal before the High Court the High Court exercises the jurisdic tion under Article 227 of the Constitution of India. Therefore it is wholly immaterial that the petition was titled as a writ petition. It may be noticed that in certain High Courts petition under Article 227 is titled as writ petition in certain other High Courts as revi sion petition and in certain others as a miscellaneous petition However keeping in view the nature of the order passed more particularly in the light of proviso to sub sectionof Section 83 of the Act the High Court exercised jurisdiction only under the Act The jurisdiction of the High Court is restricted to only examine the correctness legality or propriety of the findings recorded by the Wakf Tribunal. The High Court in exercise of the jurisdiction con ferred under proviso to sub section of Section 83 of the Act does not act as the appellate court. 21. We find merit in the argument raised by Mr. Sanyal that the nomenclature of the title of the petition filed before the High Court is immaterial. In Municipal Corporation of the City of Ahmedabad v. Ben Hiraben Manilal16 this Court held that wrong reference to the power under which an action was taken by the Government would not per se vitiate the action if the same could be justified under some other power whereby the Government could lawfully do that act. The Court held as under “5. ….It is well settled that the exercise of a power if there is indeed a power will be referable to a jurisdiction when the validity of the exercise of that power is in issue which confers validity upon it and not to a jurisdiction under which it would be nugatory though the section was not referred and a different or a wrong section of different provisions was mentioned. See in this connection the observations in Pitamber Vajirshet v. Dhondu Navlapa12 Bom 486 489] . See in this connection also the observations of this Court in the case of L. Hazari Mal Kuthiala v. ITO Special Circle Ambala Cantt.1 SCR 892 : 41 ITR 12 16 : 1 SCJ 617] This point has again been reiterated by this Court in the case of Hukumchand Mills Ltd. v. State of M.P.6 SCR 857 :52 ITR 583 :1 SCJ 561] where it was observed that it was well settled that a wrong reference to the power under which action was taken by the Government would not per se vitiate that action if it could be justified under some other power under which Government could lawfully do that act. See also the observations of the Supreme Court in the case of Nani Gopal Biswas v. Municipality of Howrah2 SCC 422 invoke its jurisdiction under Article 226 the Court can certainly treat the petition as one under Article 227 or Section 482 of the Code. This Court held as under “26. Nomenclature under which petition is filed is not quite relevant and that does not debar the court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory If in a case like the present one the court finds that the appellants could not invoke its jurisdiction under Article 226 the court can certainly treat the petition as one under Article 227 or Section 482 of the Code. It may not however be lost sight of that provisions exist in the Code of revision and appeal but some time for immediate relief Section 482 of the Code or Article 227 may have to be resorted to for correcting some grave errors that might be committed by the subordinate courts. The present petition though filed in the High Court as one under Articles 226 and 227 could well be treated under Article 227 of the Constitution.” Therefore the petition styled as one under Article 226 would not bar the High Court to exercise jurisdiction under the Act and or un der Article 227 of the Constitution. The jurisdiction of the High Court to examine the correctness legality and propriety of deter mination of any dispute by the Tribunal is reserved with the High Court. The nomenclature of the proceedings as a petition under Article 226 or a petition under Article 227 is wholly inconsequen tial and immaterial. The judgment referred to by Mr. Sanyal in Sir Hukamchand Mannalal & Co. that a member of an HUF is competent to enter into a contract with stranger does not support the argument raised. It has been held that if a member of the HUF enters into contract with a stranger he does so in his individual capacity. It was held as under: “5. The Indian Contract Act imposes no disability upon members of a Hindu undivided family in the matter of entering into a contract inter se or with a stranger. A member of a Hindu undivided family has the same liberty of contract as any other individual: it is restricted only in the manner and to the extent provided by the Indian Contract Act. Partnership is under Section 4 of the Partnership Act the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all: if such a relation exists it will not be invalid merely because two or more of the persons who have so agreed are members of a Hindu undivided family. .” This Court has quoted with the approval of the judgment reported as P.K.P.S. Pichappa Chettiar & Ors. v. Chockalingam Pillai Ors.17 wherein it has been held that when a manager of a joint family enters into a partnership that would not ipso facto makes the other member of his family as partners. The Court held as un “In their Lordships opinion the law in respect of the matter now under consideration is correctly stated in Mayne s Hindu Lawat page 398 as follows “Where a managing member of a joint family enters into a partnership with a stranger the other members of the family do not ‘ipso facto become partners in the business so as to clothe them with all the rights and obligations of a partner as defined by the Indian Contract Act. In such a case the family as a unit does not become a partner but only such of its members as in fact enter into a contractual relation with the 17 AIR 1934 Privy Council 192 stranger: the partnership will be governed by the In this passage reference is made to the Indian Contract Act which would be applicable to the facts of this case. It is to be noted that the sections referring to partnership in the said Act have been repealed and are now embodied in the Indian Partnership Act 1932. Even assuming therefore that Virappa was the manager of his joint Hindu family in 1908 his entering into partnership with the Chetties in that year would not “ipso facto” make the other members of his family partners …” The next question is as to whether Shri Devendra Prasad Sinha was running the joint family business and or whether the act of surrender of possession was that of a joint Hindu family business or only of surrender of tenancy or that as a Karta surrender of tenancy was for the benefit of the joint Hindu family The plaintiff has pleaded that when father of the plaintiff joined service the shop was being run through the servants and that the plaintiff began to run the hotel since 1988. Thereafter the dis putes cropped up over the management and accounting of the in come and the hotel was closed for many years. The plaintiff has pleaded as under “4. That when the grandfather of the plaintiff fell ill the shop was being looked after and began to run by his eldest son Surendra Kumar and Surendra Kumar began to pay rent to Waqf Board under receipt granted to him in the name of Devendra Prasad Sinha which are all with Surendra Kumar later when Surendra Kumar joined the Service the shop is bring run through the servant but later on the Hotel began to run by the plaintiff since 1988 and thereafter dispute cropped up over the management and accounting of income and as such the Hotel became closed and remained closed for several years.” The High Court held that the existence of joint family is estab lished from the Ration Card issued on 2.4.1949 and from the pay ment of rent for the period 19471955 that the premises were let out to joint family. The High Court also rejected the surrender of tenancy on the ground that it was without the consent of other co parceners. It was held as under “37. …After death of Ram Sharan Ram Ram Sewak Ram became the Karta of the joint Hindu family of which defendant No. 1 his three sons Surendra Kumar father of the plaintiff Dilip Kumar Defendant No. 2 Suresh Kumar plaintiff and his three brothers were the members Existence of the joint family of which Ram Sewak Ram was the Karta is established from perusal of the Ration Card issued under the order of the Government by the Secretary to the Government Exhibit 9 A dated 2.12.1949. After death of Ram Sharan Ram Ram Sewak Ram having become Karta of the joint family managed the affairs of the joint family including the hotel business in the suit premises let out to the joint family by the Mutawalli of the Wakf Estate which owned the suit premises as is evident from perusal of 46 rent receiptsgranted by the Bihar State Sunni Wakf Board through Mutawalli Md. Suleman for the period 1947 1955 indicating payment of rent for the suit premises by the tenant Ram Sewak Ram 43. Rent receipts Water Board receipt and electricity bill receipt aforesaid obtained by Defendant No. 1 are subsequent to the death of the original tenant i.e. Karta of the joint family Ram Sewak Ram from whom Defendant No 1 succeeded to the tenancy along with the other coparceners of the joint family. On the basis of the subsequent receipts it cannot be said that the tenancy is created only in favour of Defendant No. 1 ignoring the other descendants successors of Ram Sewak Ram. Reference in this connection is also required to be made to the statement of Defendant No. 4 who examined himself as D.W. 2 paragraph 24 wherein he has categorically stated that in the Wakf Board there is no Kirayanama executed in favour of Devendra Babu Defendant No. 1 44. The case set out by the defendants regarding surrender letter dated 31.5.96 is also fit to be rejected as after the death of Ram Sewak Ram the Karta of the Hindu undivided family Defendant No. 1 became the Karta of the Hindu undivided family and as per the tenets of Hindu Law Defendant No. 1 was not entitled to surrender the tenanted premises without the consent of the other coparceners of the Hindu undivided family… 45. In view of my findings above there is no difficulty in concluding that the suit premises was let out to Ram Sewak Ram who carried joint family hotel business in the said premises until his death i.e. in January 1960 whereafter Defendant No. 1 became the Karta of the family and succeeded to the joint family business including the suit premises along with his sons and grandsons constituting the joint family as such without the consent of the other members of the joint family could not have surrendered the tenancy in favour of Mutawalli of the Wakf Estate through the so called surrender letter dated 31.5.1996.” Thus even if a male member had taken premises on rent he is tenant in his individual capacity and not as Karta of Hindu Undi vided Family in the absence of any evidence that Karta was doing the business for and on behalf of Joint Hindu Family. The High Court has presumed the existence of the joint family of which Ram Sewak Ram was said to be the Karta from perusal of the Ration Card issued on 2.12.1949. The Hindu Joint Hindu Family cannot be presumed to be in existence only on the basis of Ration Card un less there is evidence that the funds of joint Hindu Family were in vested in the business in the tenanted premises. The Allahabad High Court in Ram Awalamb held that notions of Hindu law or Mohamedan law or any other personal law cannot be imported into the rights created by the U.P. Zamindari Abolition and Land Reforms Act. The Court held as under “8. Hindu joint families have existed from times immemorial and they exist even now. However it is by no means necessary that every Hindu Joint family should be possessed of joint family property also. Where any property is ancestral or it is acquired by all the members of a joint Hindu family or after having been acquired by one member of the joint family only it is thrown in the common stock it is regarded to be joint family property or coparcenary property. Until partition takes place or only one member of the family is left without having any male issue the coparcenary property remains with the family and upon the death of any one member only his interest devolves on the surviving coparceners. The Karta or manager of the family alone has the right to transfer the property either for legal necessity or for the benefit of the estate 45. Our conclusions can therefore be briefly summarised 1) Where members of a joint Hindu family hold bhumidhari rights in any holding they hold the same as tenants in common and not as joint tenants. The notions of Hindu law cannot be invoked to determine that status 2) Where in certain class of tenancies such as permanent tenure holders the interest of a tenant was both heritable and transferable in a limited sense and such a tenancy could prior to the enforcement of the Act be described as joint family property or coparcenary property the position changed after Act 51 came into force. Thereafter the interest of each bhumidhar being heritable only according to the order of succession provided in the Act and transferable without any restriction other than mentioned in the Act itself must be deemed to be a separate unit 3) Each member of a joint Hindu family must be considered to be a separate unit for the exercise of the right of transfer and also for the purposes of devolution of bhumidhari interest of the deceased member 4) The right of transfer of each member of the joint Hindu family of his interest in bhumidhari land is controlled only by Sec. 152 of the Act and by no other restriction. The provisions of Hindu law relating to restriction on transfer of coparcenary land e.g. existence of legal necessity do not 31. We thus find that the High Court has committed a basic error of law and fact that the payment of rent or the Ration Card proves that the tenant was carrying business as a Joint Hindu Family Busi ness. There can be presumption of Hindu joint family property if the property has been acquired by the male member or if the same has been treated as joint Hindu family. But no such pre sumption is attached to a business activity carried out by an indi vidual in a tenanted premise A perusal of the facts on record would show that it was a contract of tenancy entered upon by great grandfather of the plaintiff Even if the great grandfather was maintaining the family out of the income generated from the hotel business that itself would not make the other family members as coparceners in the hotel business. It was the contract of tenancy which was inherited by the grandfather of the plaintiff who later surrendered it in favour of the Wakf Board. The tenancy was an individual right vested with the grandfather of the plaintiff who was competent to surren der it to the landlord. The High Court has clearly erred in law by holding that since the grandfather was a tenant the tenancy is a joint family asset. The contract of tenancy is an independent con tract than the joint Hindu family business. In fact the evidence produced by the plaintiff is payment of rent by either Ram Sewak Ram or by the grandfather of the plaintiff Such payment of rent is not indicative of the fact that the hotel business was by the joint Hindu family. This Court in a judgment reported as G. Narayana Raju by his Legal Representative v. G. Chamaraju & Ors.18 held that there is no presumption under Hindu Law that business standing in the name of any member of the joint family is a joint business even if that member is the manager of the joint family unless it could be shown that the business in the hands of the coparcener grew up with the assistance of the joint family property or joint family funds or that the earnings of the business were blended with the joint family estate. This Court held as under 18 AIR 1968 SC 1276 “3. … It is well established that there is no presumption under Hindu Law that business standing in the name of any member of the joint family is a joint business even if that member is the manager of the joint family. Unless it could be shown that the business in the hands of the coparcener grew up with the assistance of the joint family property or joint family funds or that the earnings of the business were blended with the joint family estate the business remains free and separate. 6. … It is a well established doctrine of Hindu Law that property which was originally self acquired may become joint property if it has been voluntarily thrown by the coparcener into joint stock with the intention of abandoning all separate claims upon it. The doctrine has been repeatedly recognised by the Judicial Committee 3 Ind App 259and Lal Bahadur v. Kanhaia Lal 1907) 34 Ind App 65 18 Ind App 9 PC). For instance in Naina Pillai v. Daivanai Ammal AIR 1936 Madras 177 where in a series of documents self acquired property was described and dealt with as ancestral joint family property was not sufficient but an intention of the coparcener must be shown to waive his claims with full knowledge of his right to it as his separate property. The important point to keep in mind is that the separate property of a Hindu coparcener ceases to be his separate property and acquires the characteristics of his joint family or ancestral property not by mere act of physical mixing with his joint family or ancestral property but by his own volition and intention by his waiving or surrendering his special right in it as separate property. A man s intention can be discovered only from his words or from his acts and conduct When his intention with regard to his separate property is not expressed in words we must seek for it in his acts and conduct. But it is the intention that we must seek in every case the acts and conduct being no more than evidence of the intention. …”This Court in a judgment reported as P.S. Sairam & Anr. v. P.S Rama Rao Pissey & Ors.19 following the above said judgment held that so far as immovable property is concerned there would be a presumption that the same belongs to joint family provided it is proved that the joint family had sufficient nucleus at the time of its acquisition but no such presumption can be applied to a business. It was held as under “7. Crucial question in the present appeal is as to whether business which was conducted by defendant No. 1 was his separate business or it belonged to joint family consisting of himself and his sons. It is well settled that so far as immovable property is concerned in case the same stands in the name of individual member there would be a presumption that the same belongs to joint family provided it is proved that the joint family had sufficient nucleus at the time of its acquisition but no such presumption can be applied to business …” Thus mere payment of rent by great grandfather or by the grand father of the plaintiff raises no presumption that it was a joint Hindu family business. The High Court has clearly erred in law to hold so without any legal or factual basis Even if Devendra Prasad Sinha is considered to be representing the joint Hindu family while carrying out hotel business in the ten anted premises the question as to the act Karta to surrender of tenancy was for the benefit of the joint Hindu family. The powers 19 11 SCC 320 of Karta of a Joint Hindu Family have been described in 22nd Edition of Hindu Law by Mullainter alia to the following effect “Alienation by manager of coparcenary property for legal necessity. The power of the manager of a joint Hindu family to alienate the joint family property is analogous to that of a manager for an infant heir as defined by the Judicial Committee 2) The manager of a joint Hindu family has the power to alienate for value joint family property so as to bind the interest of both adult and minor coparceners in the property provided that the alienation is made for legal necessity or for the benefit of the estate. A managercan alienate even the share of a minor coparcener to satisfy an antecedent debt of the minor’s fatherwhen there is no other reasonable course open to him Nag 214). It is not necessary to validate the alienation that the express consent of the adult members should have been obtained In Suraj Bunsi Koer v. Sheo Proshad 6 IA 88 p 101 the Judicial Committee stated that it was not clearly settled whether where an alienation is made by a manager for a legal necessity but without the express consent of the adult coparceners the alienation is binding on them However in later decisions of the same tribunal the view taken is that if legal necessity is established the express consent of the adult coparceners is not necessary (Sahu Ram v. Bhup Singh AIR 1917 PC 61). As to alienation by manager for joint family business Where any such transaction has been entered into for legal necessity by a manager it would be deemed to be on behalf of the family and would bind it. The position is not worsened by the fact that a junior member joins the transaction and the joining by him is abortive by reason of his minority (Radha Krishnadas v. Kaluram AIR 1967 SC The pleaded stand of the Plaintiff is that the hotel was closed for several years. Therefore the liability to pay monthly rent contin ued to accrue upon karta Devendra Prasad Sinha. The question is as to whether in these circumstances on account of cessation of activities of running of the hotel the act of the surrender of ten ancy is in fact for the benefit of the joint family. The learned High Court found that the letter of surrender was not reliable or ten able. The executor of the surrender letter has admitted such sur render letter in the written statement and while appearing as a witness as DW 5. The Mutawalli Md. Salimuddin has also accepted the surrender letter in the written statement and while appearing in the witness box as DW 10. Merely for the reason that signa tures in the translated copy do not tally with the Urdu copy is not sufficient to hold the surrender letter as unreliable as the transla tion can be incorrect but the correctness of the document in has not been disputed by the executor or by the acceptor. The said document could not have been said to be unreliable on the basis of the statement of the plaintiff who is not a party to such transac tion. It is one thing to say that the document is unreliable and an other to say that the document does not bind the plaintiff. We have no hesitation to hold that the document was validly proved and accepted by the Wakf Board. Therefore the act of surrender of tenancy was for the benefit of the Joint Hindu family 38. We thus hold that the order of the High Court is not sustainable for the reasons recorded above. Consequently the present appeal is allowed. The order of the High Court is set aside and that of the Wakf Tribunal is restored with no order as to costs. S. ABDUL NAZEER NEW DELHI APRIL 05 2021

Information secured under the RTI Act cannot be the basis for the conclusion: Supreme Court of India

The Appellant has approached the Supreme Court in these appeals by assailing the orders passed by the High Court of Orissa in [WP(C) No.22713/2014]. Where they concluded and produced an order concerning the right to informant act. Mr Sibo Sankar Mishra represented the appellants and Mr   Ashok   Panigrahi represented the respondent in the case. In the Supreme Court of India, this judgement was given by Honorable Mr Justice A.S. Bopanna, J. on the 27th of September 2021 in the case of State of Odisha & Ors. Versus Arati Mohapatra, [Civil Appeal Nos. 5963­5964 OF 2021] arising out of SLP (civil) [Nos.9302­9303/2019]. The following are the brief facts of the case, In the year 1996, there was a recruitment process of primary school teachers that was initiated in government schools in the state of Odisha. Whereby 379 candidates were selected for an appointment, the respondent has secured 114.80 marks in the test and was appointed as an Assistant Teacher in Singiri, with the PayScale of Rs.1080­ and the respondent joined the duty on the 30th of July 1997. However, the candidates who were rejected for the job approached the State Administrative Tribunal alleging foul play in the selection process. The SAT produced an order on the 24th of January 2001 directing the authorities to make a fresh list of candidates for the Job there was a delay in complying with the order and the Court directed to produce the fresh document within four months. The appellant team was so pursuant they formed a committee on the 8th of September 2006 to prepare a fresh list by re-electing the candidates. The Counsel for the appellant held that while re-electing the last of the candidate selected in the general category has secured 111.53 marks, whereas near the respondent’s name it was written secured 109.86 marks which is contrasting her original marks and she was terminated from the service in 2006. The others who were terminated due to marks difference or forgery of the documents approached the SAT, where the SAT disposed of the same by stating that since the applicants have filed forged certificates /documents and a vigilance case is pending. The SAT when they considered the fact that the marks shown in the re-selection list against the name of the respondent contrasting her original marks did not feel the need to interfere in the termination order. The respondent finally approached the High court in a writ petition. The High Court considered the fact that her original marks differed from the marks mentioned in the re-selection list, the division bench directed the appellants to treat the respondent concerning her original marks. Also, to communicate a reasoned order to the respondent in 3 months as to why she was terminated which was obtained by the respondent under the Right to Information Act The Counsel representing the respondent held that it is not disputed that the respondent was not one of the candidates who was accused of forgery of documents for obtaining the appointment. In justification of the termination of the respondent was that the marks were lesser than the last selected candidate in the general category. the counsel held that the information was reached to her from the official filed under the RIT act and therefore the respondent is entitled to be selected which even the High Court has directed. The counsel for the appellant contended the order because the High court placed reliance on the first list of candidates than the re-selection list. The counsel for the appellant held that marks obtained by the respondent in the viva voce were 14.40, matriculation of 44.42 marks and 51.04 marks in the competitive test which would add up to 109.86 and not 114.80 marks hence the order given by the High court is not justified. The Honourable Supreme Court held that “The High Court concluded asking the appellants to consider the original marks merely because it was secured under the Right to information act and held that the decision made by the High Court was not justified and had fallen into error, therefore, the order passed by the High Court cannot be sustained. The orders dated 20.03.2018 and  06.12.2018 passed by the High Court of Orissa in WP(C) No.22713/2014 and ReviewPetition No.230/2018 are set aside. Pending applications, if any, shall stand disposed of.” Click here to read the judgment

The Appellant­State of Odisha & others are before this High Court has set aside the orders passed by the Odisha Administrative Tribunal Cuttack Bench in O.A between the parties has the genesis in the selection process Through the resolution dated 12.03.1996 the procedure for recruitment was formulated and the selection process was selected for appointment was published on 31.01.1997. The and it had depicted that the respondent had secured 114.80 marks. The respondent was accordingly appointed as an Assistant Teacher in Singiri in the Pay Scale of Rs.1080­30­ EB­30­1800. The respondent no.1 had joined duty on When this was the position a group of aggrieved unsuccessful candidates approached the State Administrative Tribunal in O.A. No.2792(C) 1999 and selection process. The SAT having considered the same been completed one of the applicants Ms. Prem Lata Panda filed a Contempt Petition No.382(C) 2001 before the SAT alleging non­compliance of the order dated 24.01.2001. The select list be prepared within four months. The appellants herein in compliance thereto prepared a fresh selection list withdrawing the appointments and in that light sought for list the last of the candidate selected in the general category of the respondent was 109.86 due to which the appellants on 30.11.2006. The respondent claiming to be aggrieved by such termination filed an application before the SAT in O.A No.2699(C) 2006. Certain other candidates who were terminated from service either due to the criteria of the the termination. The SAT having taken note of the rival terminated from service because they filed forged vigilance case. In that view it was observed that if the decision in the vigilance case goes in their favour they would be at the respondent was not due to that reason but due to the Petition in M.P.No.729(C) 2006 before the SAT which was disposed of by the order dated 21.10.2014. Though the said originally shown as 114.80 marks did not see reason to Court in the abovestated writ petition. The High Court on 114.80 marks more particularly relying on the details of the minutes dated 31.01.1997 which was obtained by the for short ‘RTI Act’) wherein the name of the respondent appeared at Serial No.301 as she had been awarded 114.80 marks. The learned Division Bench of the High Court accordingly directed the appellants herein to treat the and communicate a reasoned order to the respondent within three months. The review filed against the said order was appearing for the appellants Mr. Ashok Panigrahi learned litigation between the parties including the challenge to the original selection list by a group of unsuccessful candidates preparation of re­selected list after considering the matter afresh is not in serious dispute. Though the genesis for the published was the allegation made by the unsuccessful candidates in O.A. No.2792(C) 1999 and analogous petitions list has been re­arranged based on the marks obtained is documents for obtaining appointment. In fact this aspect is No.729(C) 2006. In the said order the reason to justify the termination of respondent is taken note which is that the respondent had obtained 109.88 marks and was accordingly placed at the appropriate spot in the re­select list. The said Against the above backdrop it is noticed that the only of the information secured under RTI Act relied upon by the respondent wherein the minutes dated 31.01.1997 indicated the marks obtained by the respondent as 114.80 marks and the conclusion reached by the High Court since according to the RTI Act and such information would justify that the respondent having obtained 114.80 marks is entitled to be 12. The learned counsel for the appellants would on the on the list which was prepared on 31.01.1997 the details of orders passed therein subsequent thereto a re­selection list was prepared. In the said process the marks were correctly competitive test the total would add up to 109.86 and not In the light of the above the only question for In the re­select list the name of the respondent is shown at Serial No.474 having obtained 109.86 marks. The marks awarded by the three Selection Committee members in the Viva­voce is shown as 16 20.20 and 7 the total of which to be divided by 3 will work out to the average of 14.40 marks in 14. Hence all these aspects will reveal that though it had aside by the SAT accepting the allegations of the applicants therein that the list had not been appropriately prepared be sustained. The orders dated 20.03.2018 and 06.12.2018 Pending applications if any shall stand disposed of. Page 1

A person, who performs the duties of higher office, must get the salary of the same post: High Court of Himachal Pradesh

The post of Planning & Development Officer lying vacant w.e.f. 21.07.2014, was a higher post in the line of promotion from the post of Deputy Registrar substantively held by the petitioner. Therefore, following the dictum of Shiv Dayal Kataria’s case, supra, in the facts and attending circumstances of the case, the petitioner deserves to be granted the pay scale attached to the said post. This was held in Bishan Singh Chandel V. Himachal Pradesh University and another[CWPOA No.5378 of 2019] in the High Court of Himachal Pradesh by the single bench consisting of Justice Jyotsna Rewal Dua. Facts are that the petitioner was the senior-most Deputy Registrar. The petitioner had been ordered to give an additional charge to the post of Planning & Development Officer but he had not been given the pay scale (financial benefits) attached to the post. Thus the petitioner has preferred the writ petition. The counsel for the petitioner contended that in any case, the respondent had taken the work of Planning & Development Officer from the petitioner w.e.f. 12.11.2014 and superannuated while discharging the duties of the said post. Thus the financial benefits attached with the post are deserved and need to be granted. The Court made reference to the judgment of Co-ordinate Bench of Himachal  High court in Shiv Dayal Kataria Versus Himachal Pradesh University, wherein the following observation had been made,“ A person, who performs the duties of higher office, must get the salary of the same post. He cannot waive of his fundamental/legal right to get a higher salary, even if an endorsement was made in the office order that the petitioner will not get the monetary benefits. Petitioner is also entitled to get the salary of the post of Superintending Engineer on the well-recognized principle of “equal pay for equal work”

Hig h C o urt of H.P on 06 05 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWPOA No.53719 Reserved on: 29th April 2021 Decided on: 5th May 2021 Bishan Singh Chandel …..Petitioner Versus Himachal Pradesh University and another …..Respondents Coram Ms. Jyotsna Rewal Dua Judge Whether approved for reporting 1 Yes. For the Petitioner: Mr. Sanjeev Bhushan Senior Advocate with Mr. C.D. Negi Advocate. For the Respondents: Mr. Surender Verma Advocate. Jyotsna Rewal Dua Judge The petitioner claims his promotion to the post of Planning & Development Officer alongwith the pay scale attached to it from a retrospective date. This claim stands on two planks. Firstly that the respondent University in an arbitrary and discriminatory manner did not exercise the discretionary power to relax the applicable rules in favour of the petitioner for his promotion to the post of Planning & 1 Whether reporters of print and electronic media may be allowed to see the order Hig h C o urt of H.P on 06 05 HCHP 2 Development Officer while at the same time in exercise of this very power similarly situated employees were promoted by the respondent to the post of Deputy Registrar etc. and secondly notwithstanding above the respondents had given additional charge of the post of Planning & Development Officer to the petitioner w.e.f 12.11.2014. The petitioner superannuated on 31.03.2015 while discharging the duties of Planning & Development Officer therefore the pay scale attached to this post is required to be released in his favour. 2. Facts: 2(i). On 29.11.2011 the Executive Council of the respondent University had before it an Agenda No.17 regarding providing relaxation in the Recruitment & Promotion Ruleswhile effecting promotions to the vacant posts of Deputy Registrar and Special Secretary. The Executive Council resolved and authorized the Vice Chancellor of the respondent University to take appropriate decision on matters pertaining to relaxation of R&P Rules in favour of the incumbents keeping in view their seniority as well as justification for relaxation in their favour. Hig h C o urt of H.P on 06 05 HCHP 3 2(ii). The petitioner had joined the respondent University in the year 1974. He was promoted as Deputy Registrar on ad hoc basis vide office order dated 21.01.2014 by granting him relaxation of one and a half months’ service period as Assistant Registrar. His ad hoc promotion was regularized w.e.f. 10.03.2014 vide office order dated 21.10.2014. The petitioner was senior most serving Deputy Registrar at that time. 2(iii). In terms of the Himachal Pradesh University Ministerial and Administrative ServiceRules framed by the Executive Council of the respondent University as notified on 06.01.1973 further promotion from the post of Deputy Registrar could either be to the post of Additional Controller of Examinations or to the post of Planning & Development Officer. The post of Additional Controller of Examinations and Planning & Development Officer are to be filled up 100% by promotion from the feeder channel of Deputy Registrars. The relevant rules providing the required length of service as Deputy Registrar for promotion to these two avenues read as under: Hig h C o urt of H.P on 06 05 HCHP 4 “14.18: Additional Controller of Examinations: i) Minimum length of approved service. Three years as Deputy Registrar. OR Two years as Deputy Registrar and with at least two years as Assistant Registrar. Desirable: Experience of having worked in Examination Branches of the University. 14.19: Planning & Development Officer: i) Minimum length of approved service. Three years as Deputy Registrar. OR Two years as Deputy Registrar and with at least two years as Assistant Registrar.” 2(iv). One post of Planning & Development Officer became available in the respondent University on 31.07.2014. Petitioner was serving as senior most Deputy Registrar at the time. His case for promotion to this post was processed by granting him relaxation in the requisite length of service. Though the Vice Chancellor of the respondent University on 12.11.2014 did not exercise the power to grant relaxation in favour of the petitioner for facilitating his promotion to the post of Planning & Development Officer however noticing that work against the post of Planning & Development Officer was of urgent nature and somebody needed to be posted there ordered to give additional charge of the post to the petitioner without any financial benefits. 2(v). Aggrieved againstrespondent’s refusal to relax the condition of length of service required for Hig h C o urt of H.P on 06 05 HCHP 5 petitioner’s promotion to the post of Planning & Development Officer andalso aggrieved against non grant of the pay scaleattached to the post of Planning & Development Officer i.e. the work which the petitioner was discharging w.e.f. 12.11.2014 till his superannuation on 31.03.2015 the petitioner has preferred the instant petition for the following substantive reliefs: “I) That the respondents may kindly be directed to promote the applicant as Planning and Development Officer either w.e.f. 1st September 2014 or in the alternative w.e.f. 12.11.2014 from which date the applicant has been performing the work of Planning and Development Officer with all consequential benefits of pay arrears etc. II) That the respondents may kindly be directed to pay the arrears to the applicant with interest @ 9% per annum in the interest of law and justice.” 3. Contentions: Heard learned counsel for the parties and gone through the record. 3(i). Learned Senior Counsel for the petitioner submitted that in the circumstances similar to that of petitioner the respondent University had relaxed the length of service required under the R&P Rules for promotion to the post of Deputy Registrar. S Sh. Waryam Singh Bains and Nitya Nand Sharma were promoted as Assistant Registrars w.e.f. 01.02.2014 and 10.03.2014 respectively Hig h C o urt of H.P on 06 05 HCHP 6 vide office order dated 21.10.2014. Their names figured at Sr. Nos.3 and 4 in order of seniority. One Sh. Mohinder Kumar Gupta was promoted as Assistant Registrar vide same order of 21.10.2014 w.e.f. 27.01.2014. He was senior to Sh. Waryam Singh Bains and Nitya Nand Sharma and was accordingly reflected above them at Sr. No.2. Under the Rules an Assistant Registrar with two years of service as such is eligible for further promotion to the post of Deputy Registrar. Ignoring the claim of senior incumbent Sh. Mohinder Kumar Gupta the respondent University on 12.11.2014 promoted S Sh. Waryam Singh Bains and Nitya Nand Sharma as Deputy Registrars by granting them relaxation of one year and three months’ in the service required as Assistant Registrar. Learned Senior Counsel argued that the case of the petitioner was at much better footing as compared to S Sh. Waryam Singh Bains and Nitya Nand Sharma for grant of relaxation as petitioner was the senior most Deputy Registrar serving with the respondent University when the post of Planning & Development Officer became available. No one would have been superseded had he been promoted to the said post by way of relaxation of R&P Rules. Whereas S Sh. Waryam Hig h C o urt of H.P on 06 05 HCHP 7 Singh Bains and Nitya Nand Sharma were promoted to the post of Deputy Registrar in relaxation of length of service required under the R&P Rules superseding their senior Sh. Mohinder Kumar Gupta. Length of service required to be relaxed in case of the petitioner’s promotion was almost the same as relaxed in case of S Sh. Waryam Singh Bains and Nitya Nand Sharma. Therefore learned Senior Counsel contended that the respondent University has discriminated against the petitioner in refusing to relax the length of service required under the R&P Rules for his promotion to the post of Planning & Development Officer. Petitioner therefore is required to be promoted as Planning & Development Officer w.e.f. 01.09.2014. It is also contended by learned Senior Counsel for the petitioner that in any case the respondent had taken the work of Planning & Development Officer from the petitioner w.e.f. 12.11.2014. The petitioner superannuated on 31.03.2015 while discharging the duties of the said post. The action of the respondents in not giving the financial benefits attached with the post of Planning & Development Officer while extracting this work from him was absolutely illegal. Therefore learned Senior Counsel prayed that the Hig h C o urt of H.P on 06 05 HCHP 8 petitioner deserves to be granted the monetary benefits attached to the post of Planning & Development Officer w.e.f. 12.11.2014. 3(ii). Learned Standing Counsel for the respondent University produced the relevant record during hearing of the case. While admitting the main factual aspects of the matter learned counsel submitted that an amendment had been carried out in the Himachal Pradesh University Act 1970 w.e.f. 16.03.2015 whereby following Sub Sectionwas substituted for Section 28(1) of the Principal Act: “(a) for sub section(1) the following sub section shall be substituted namely: “(1) There shall be a Finance Committee and its constitution the term of office of its members other than ex officio members shall be as laid down in the Statutes. All financial matters and service matters relating to service conditions of the employees of the University including creation up gradation or filling of the posts framing of Recruitment and Promotion Rules revision of pay and allowances shall first be placed before the Finance Committee and thereafter such matters shall be placed before the Executive Council with its recommendations.” Learned counsel for the respondent University submitted that in accordance with the above amendment carried out in the Himachal Pradesh University Act 1970 the matters regarding service of employees of the respondent University are now required to be considered first by the Finance Committee and thereafter the matters are to be placed before the Executive Council with its Hig h C o urt of H.P on 06 05 HCHP 9 recommendations. After coming into force of the amendment on 16.03.2015 the respondent University has not relaxed the conditions prescribed in the applicable rules for promotion of its employees. It is for this reason that the case of ad hoc promotion of the petitioner to the post of Planning & Development Officer could not be favourably considered even during the month in which he was to retire i.e. March 2015. 4. Observations: 4(i). Claim of retrospective promotion: Petitioner in essence claims that respondent University be directed to exercise discretionary power of relaxation of the Recruitment & Promotion Rules in his favour for his retrospective promotion to the post of Planning & Development Officer. This claim is based upon analogy of relaxation power exercised by the respondent University while promoting some other incumbents. 4(i)(a). The Executive Council on 29.11.2011 had authorized the Vice Chancellor to decide all those cases which required relaxation in the R&P Rules keeping in view the seniority and justification for such relaxation. Hig h C o urt of H.P on 06 05 HCHP 10 4(i)(b). The record shows that the cases of the petitioner Sh. Waryam Singh Bains and Sh. Nitya Nand Sharma for granting them relaxation in the length of service required under the rules for their promotion to the next higher post were considered by the Vice Chancellor of the respondent University simultaneously on 12.11.2014. Following was observed while refusing to exercise the power of relaxation in favour of the petitioner and for exercising this power in favour of other two employees: “1. There is no justification to promote Sh. Bishan Singh Chandel Deputy Registrarto the post of Planning & Development Officer. However keeping in view the requirement of work he is given the additional charge of the said post without any financial benefits till further orders. 2. Sh. Waryam Singh Bains and Sh. Nitya Nand Sharma would be superannuating this month therefore there is justification to give them relaxation in the service period and they may be promoted to the post of Deputy Registrar during their service tenure by giving them relaxation.” Respondent did not find any justification to relax the length of service required under the Rules in favour of the petitioner for his promotion to the post of Planning & Development Officer. However only on the ground that S Sh. Waryam Singh Bains and Nitya Nand Sharma serving as Assistant Registrars were due for superannuation in the ongoing month they were promoted to the next higher post of Deputy Registrar in relaxation of Hig h C o urt of H.P on 06 05 HCHP 11 length of service required under the R&P Rules. While exercising power of relaxation in favour of these two incumbents for purposes of their promotion to the post of Deputy Registrar the respondent University also overlooked the claim of their senior Sh. Mohinder Kumar Gupta. During hearing of the case learned Standing Counsel for the respondent University informed that subsequent to the promotions of his juniors Sh. Mohinder Kumar Gupta approached the erstwhile learned H.P. Administrative Tribunal by way of Original Application No.4715 which was decided on 27.04.2015. On the directions issued by the learned Tribunal the respondent University on 29.04.2015 promoted said Sh. Mohinder Kumar Gupta to the post of Deputy Registrar. The reasoning advanced by the respondent University for granting relaxation in required length of service to S Sh. Waryam Singh Bains and Nitya Nand Sharma is at sharp variance to the one given while refusing to exercise relaxation power in favour of the petitioner despite the fact that attending circumstances in all the three cases were almost similar. It is an admitted position that the petitioner was the senior most Deputy Registrar. Hig h C o urt of H.P on 06 05 HCHP 12 He also needed relaxation in length of service of around a year and three months for promotion to the post of Planning & Development Officer. This period almost equals the period relaxed in favour of S Sh. Waryam Singh Bains and Nitya Nand Sharma. Considering the necessity of work to be discharged against the promotional post of Planning & Development Officer the respondent though gave additional charge of the said post to the petitioner but refused to relax length of service required under the R&P Rules for his promotion to this post. Whereas requisite length of service was relaxed in favour of S Sh. Waryam Singh Bains and Nitya Nand Sharma in view of their impending retirement within next few days and that too by ignoring the claim of their senior. These facts leave no manner of doubt that the discretionary power to relax the rules had been indiscriminately exercised by the respondent University. 4(i)(c). In Amrik Singh and others Versus Union of India and others 3 SCC 393 power to relax rules and regulations in certain cases conferred under Rule 3 of the All India ServicesRules 1960 was being considered. It was held “that Government must be satisfied not subjectively but Hig h C o urt of H.P on 06 05 HCHP 13 objectively that any rule or regulation affecting the conditions of service of a member of the All India Services causes undue hardship then the iniquitous consequence thereof may be relieved against by relaxation of the concerned Rule or Regulation. There must be undue hardship and further the relaxation must promote the dealing with the case “in a just and equitable manner”. These are perfectly sensible guide lines. What is more there is implicit in the Rule the compliance with natural justice so that nobody may be adversely affected even by administrative action without a hearing.” In Syed Khalid Rizvi and others Versus Union of India and others 1993 SuppSCC 575 while considering All India ServicesRules 1960 it was held that no employee has a right to promotion but he has only the right to be considered for promotion as per Rules. Conditions of recruitment and conditions of service are distinct and the latter is preceded by an appointment according to rules. The former cannot be relaxed. Relevant paras are as under: “31. No employee has a right to promotion but he has only the right to be considered for promotion according to rules. Chances of promotion are not conditions of service and are Hig h C o urt of H.P on 06 05 HCHP 14 defeasible … Accordingly we hold that seniority though normally an incidence of service Seniority Rules Recruitment Rules and Promotion Regulations form part of the conditions of recruitment to the Indian Police Service by promotion which should be strictly complied with before becoming eligible for consideration for promotion and are not relaxable. 33. Rule 3 of the Residuary Rules provides the power to relax rules and regulations in certain cases where the Central Government is satisfied that the operation of any rule made or deemed to have been made under the Act orany regulation made under any such rule regulating the conditions of service of persons appointed to an All India Service “causes undue hardship in any particular case” it may by order dispense with or relax the requirements of that rule or regulation as the case may be to such an extent and subject to such exceptions and conditions as it may consider necessary for dealing with the case in a “just and equitable manner”. Rule 3 empowers the Central Government to relief undue hardship caused due to unforeseen or unmerited circumstances. The Central Government must be satisfied that the operation of the rule or regulation brought about undue hardship to an officer. The condition precedent therefore is that there should be an appointment to the service in accordance with rules and by operation of the rule undue hardship has been caused that too in an individual case. The Central Government on its satisfaction of those conditions have been empowered to relieve such undue hardship by exercising the power to relax the condition. It is already held that conditions of recruitment and conditions of service are distinct and the latter is preceded by an appointment according to Rules. The former cannot be relaxed. The latter too must be in writing that too with the consultation of UPSC …..” Hon’ble Apex Court in Suraj Parkash Gupta and others Versus State of J&K and others 7 SCC 561 after taking note of various pronouncements on the subject observed that relevant Recruitment Rule for promotion cannot itself be treated as one producing hardship. Relevant para in this regard reads as under: Hig h C o urt of H.P on 06 05 HCHP 15 “32. On facts the reasons given in the Cabinet note for granting relaxation are hopelessly insufficient. In fact the letter of the Commission dated 25 11 1997 shows that the Commission was prepared to give its opinion in regard to regularisation of each promotee but the Government backed out when the Commission called for the records relevant for considering suitability for regular promotion. In our view there can be no hardship for a person seeking appointment or promotion to go by the procedure prescribed therefor. The relevant Recruitment Rule for promotion cannot itself be treated as one producing hardship. Narender Chadha case must be treated as an exception and not as a rule. In fact if such relaxation is permitted in favour of the promotees then the same yardstick may have to be applied for direct recruits. In fact the J&K Government has already started to do so and this has not been accepted by this Court in Narinder Mohan case and Dr. Surinder Singh Jamwal case referred to above. If it is to be held that direct recruitment can also be permitted without consulting the Service Commissionto the post of Planning & Development Officer. However keeping in view the requirement of work he is given the additional charge of the said post without any financial benefits till further orders.” Hig h C o urt of H.P on 06 05 HCHP 18 This was followed by an order dated 12.11.2014 whereunder petitioner was to look after the work of Planning & Development Officer in addition to his own duties without any financial benefits till further orders: “Shri Bishan Singh Chandel Deputy Registrar Estate Office will look after the work of Planning & Development Officer with immediate effect in addition to his own duties without any financial benefits till further orders.” It is an admitted fact that the petitioner worked as Planning & Development Officer w.e.f. 12.11.2014 till his superannuation on 31.03.2015. In support of petitioner’s claim of pay of this post reliance has been placed upon a decision rendered in CWP(T) No.70908. 4(ii)(b). In CWP(T) No.70908 titled Shiv Dayal Kataria Versus Himachal Pradesh University a Co ordinate Bench of this Court while taking note of the fact that the petitioner therein had worked as Superintending Engineer in the respondent University held him entitled for financial benefits attached to the post. Paras 8 and 9 of the judgment read as under: “8. Now the Court has to advert to the second limb of argument of Mr. Dilip Sharma. According to him his client was permitted to discharge the duties of Superintending Engineer. This order was passed by the Registrar of the respondent University on 03.03.1994 whereby the petitioner was invested with the powers of Superintending Engineer and was to function as overall Incharge of the three engineering wingsof the respondent University. He made representation seeking benefit of the services he had Hig h C o urt of H.P on 06 05 HCHP 19 rendered as Superintending Engineer on 09.09.1997. The Vice Chancellor on 11.09.1997 as per his endorsement stated as follows: “Allowed if it is on record that Sh. S.D. Kataria has performed the duties of S.E. for more than 3 years.” 9. It is not denied by the respondents in the reply that the petitioner has not worked as Superintending Engineer. The objection raised by the respondent University is that firstly it was made clear to the petitioner that he will not get any financial benefits as per office order dated 03.03.1994 and secondly the Vice Chancellor had no jurisdiction authority under the Himachal Pradesh University Ordinances to pass orders on 11.09.1997. According to the respondent University the competent authority in the case of category B is the Executive Council of the University and not the Vice Chancellor. It is true that to take a decision with regard to appointment suspension removal from office fixing of salary control or any other kind of matter as far as employees of categories ‘A’ and ‘B” are concerned the competent authority was the Executive Council. The petitioner was also informed on 03.03.1994 that he will not be entitled to any financial benefits. However fact of the matter is that petitioner has worked for more than three years as Superintending Engineer and an endorsement was also made by the Vice Chancellor on 11.09.1997 in favour of the petitioner. An employee cannot be deprived of his right to get higher salary if he discharges the duties of higher office. In this case the petitioner was permitted to work as Superintending Engineer. Superintending Engineer is a higher post and the post of Executive Engineer is in feeder category. A person who performs the duties of higher office must get the salary of the same post. He cannot waive of his fundamental legal right to get the higher salary even if an endorsement was made in the office order that the petitioner will not get the monetary benefits. Petitioner is also entitled to get the salary of the post of Superintending Engineer on the well recognized principle of “equal pay for equal work”. The Executive Council no doubt is the competent authority to take decisions with regard to ‘A’ and ‘B’ categories of employees governing their conditions of service but once the endorsement has been made by the Vice Chancellor the matter was required to be taken before the Executive Council. The respondent University in its own wisdom has not taken up the matter with the Executive Council. The petitioner was permitted to discharge the duties of the post of Superintending Engineer. The Court has also taken note of the fact that even though the post of Superintending Engineer was not available however the petitioner was still invested with the powers as were exercised by the Superintending Engineer of H.P.P.W.D. In view of this Hig h C o urt of H.P on 06 05 HCHP 20 the petitioner cannot be denied the salary of the post of Superintending Engineer for working more than three years as Superintending Engineer.” LPA No.1010 preferred by the respondent University against the above judgment was dismissed vide judgment dated 27.10.2015. Learned Standing Counsel for the respondent has not disputed the fact that the above judgment has since attained finality and stands implemented. The ratio of the above judgment applies to the facts of the instant case as well. Here also the petitioner had admittedly discharged the duties of the higher post of Planning & Development Officer w.e.f. 12.11.2014 till his superannuation on 31.03.2015. This was pursuant to an order passed by the respondent in terms of the decision taken by the Competent Authority. The post of Planning & Development Officer lying vacant w.e.f. 21.07.2014 was a higher post in line of promotion from the post of Deputy Registrar substantively held by the petitioner. Therefore following the dictum of Shiv Dayal Kataria’s case supra in the facts and attending circumstances of the case petitioner deserves to be granted the pay scale attached to the said post. No other point was urged by either of the parties. Hig h C o urt of H.P on 06 05 HCHP 21 In view of above discussion petitioner’s claim for retrospective promotion to the post of Planning & Development Officer w.e.f. 01.09.2014 is held to be not tenable. However respondent University is directed to release the pay and allowances alongwith consequential benefits to the petitioner for discharging the duties of Planning & Development Officer w.e.f. 12.11.2014 to 31.03.2015 within a period of six weeks from today. The writ petition is disposed of in the above terms. Pending miscellaneous application(s) if any also stand disposed of. Jyotsna Rewal Dua Judge May 05 2021 Mukesh

The employer has to take into consideration the Government orders/instructions/rules applicable to the employee at the time of taking a decision: Supreme Court of India

The employer must take into consideration all the Government orders/instructions/rules which are applicable to the employee at the time of making a decision. This remarkable judgement was passed by the Hon’ble Supreme court of India headed by Justice SANJAY KISHAN KAUL in the matter of THE STATE OF RAJASTHAN & ORS. V. LOVE KUSH MEENA [CIVIL APPEAL NO.3894 OF 2020] The moot point which arose for consideration was whether a benefit of doubt resulting in acquittal of the respondent in a case charged under Sections 302,323,341/34 of the Indian Penal Code [IPC] can create an opportunity for the respondent to join as a constable in the Rajasthan Police service. The respondent and three others were charged with the aforesaid provisions of the Indian Penal Code and tried before the Additional Sessions Judge (Fast Track), Laxman Garh, District Alwar, Rajasthan. The incident relates to 6.10.2008 at about 6 p.m. when, as per the complainant Babulal, one Jagdish and Dayaram came in a tractor for tilling a disputed field in jungle Patan. Tofli, mausi of Babulal forbade them to till the land and apparently stayed back in the field. The court stated that “It is relevant to note that during the trial injured persons, Babulal, Om Prakash and Raju alias Rajesh obtained the permission of the Court and filed a compromise in favour of accused persons under Sections 341,323 of IPC which was approved but naturally, there could not have been any compromise qua the offences under Section 302/34 IPC.” The court contested that “In the instant case the aspect of there being a time-lapse between the alleged offence and the recruitment process was emphasised to contend that the respondent herein was about 19 years of age when the incident occurred and had now carried his life further by being successful in a competitive examination some years down the line.”

REPORTABLE IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.3894 OF 2020 THE STATE OF RAJASTHAN & ORS. Appellant(s LOVE KUSH MEENA Respondent(s JUDGMENT SANJAY KISHAN KAUL J The moot point which arises for consideration is whether a benefit of doubt resulting in acquittal of the respondent in a case charged under Sections 302 323 341 34 of the Indian Penal Code can create an opportunity for the respondent to join as a constable in the Rajasthan The respondent and three others were charged with the aforesaid provisions of the Indian Penal Code and tried before the Additional Sessions Judge Laxman Garh District Alwar Rajasthan. The incident relates to 6.10.2008 at about 6 p.m. when as per the complainant Babulal one Jagdish and Dayaram came in a tractor for tilling a disputed field in jungle Patan. Tofli mausi of Babulal forbade them to till the land and apparently stayed back in the field. At that time the tractor driver Jagdish drove the tractor and ran over Tofli. The complainant Babulal along with one Raju Om Prakash and Dinesh rushed to her side but were beaten up and knife injuries were inflicted upon them by Dayaram Love Kush respondent) Bodan and Jagdish. Tofli was taken in a Buggi to the hospital where the doctor declared her brought dead On the basis of the said report PS Khedli registered Case No.2508 under Sections 302 341 323 34 of the IPC and commenced the investigation. Upon completion of the investigation the charge sheet against all the accused persons vide No.1 2009 was filed in the Court of Judicial Magistrate Kathumar from where it was committed to the Court of the Additional Sessions Judge Laxman Garh. The charges were framed and all the accused denied the charges It is relevant to note that during the trial injured persons Babulal Om Prakash and Raju alias Rajesh obtained permission of the Court and filed a compromise in favour of accused persons under Sections 341 323 of IPC which was approved but naturally there could not have been any compromise qua the offences under Section 302 34 IPC. In those charges the trial continued and it is quite obvious that in view of the compromise all the prosecution witnesses including those injured turned hostile. On the basis of the case of the prosecution the learned Judge opined in terms of the judgment dated 01.05.2009 that “the prosecution had failed to prove the case against the accused persons beyond reasonable doubt”. A notification for recruitment of constable was issued on 14.07.2013 under the provisions contained in part III of the Rajasthan Police Subordinate Service Regulations 1989 for 12178 posts of constables setting out the procedure for making the application. Paraof the advertisement provided for disqualification for appointment. The relevant clausereads as under “(ix) As per judgment of Hon’ble Supreme Court in Civil Appeal No.782 2004 State Government and others v. Mohd. Salim Dated 10.12.2009 Director General Police Rajasthan Circular No.1687 dt.29.4.1995 is held legal. In compliance with the said judgment only those candidates shall be qualified to appear in recruitment for Rajasthan police who have not been convicted for offence of moral turpitude violent activities and not honourably acquitted by Court.” The aforesaid would show that the disqualification would operate qua conviction and “not honourably acquitted by Court” for offences of moral turpitude and violent activities. The respondent herein participated in the same and it appears was successful in the recruitment process However a letter dated 04.08.2015 was issued to him on the basis of character antecedent verifications carried out by the Police Superintendent. District Alwar Dy. Inspector General Police Security Rajasthan Jaipur whereupon the aspect of the aforesaid case was looked into 8 SCC 471 It is pointed out that various nuances arising in this judgment has been considering even in the subsequent judgments. In Union Territory Chandigarh Administration Ors. v. Pradeep Kumar & Anr.2 a two Judge Bench of this Court dealt with the expression “honourable acquittal”. It was opined that acquittal in a criminal case was not conclusive for suitability of the candidate concerned and it could not always be inferred from an acquittal or discharge that the person was falsely involved or has no criminal antecedents. Thus unless it is an honourable acquittal the candidate cannot claim the benefit of the case. No doubt it was mentioned by relying on the earlier judgment of this Court in Inspector General of Police v. S Samuthiram3 that while it was difficult to define precisely what is meant by the expression “honourable acquittal” an accused who is acquitted after full consideration of the prosecution evidence and prosecution has miserably failed to prove the charges levelled against the accused it can possibly be said that the accused was honourably acquitted In this context it has been specifically noticed by this Court that entry into the police service required a candidate to be of good character integrity and clean antecedents. Finally it was opined that the acquittal in a criminal case does not automatically entitle a candidate 2(2018) 1 SCC 797 3(2013) 1 SCC 598 for appointment to the post as a person having criminal antecedents will not fit in this category. In a similar factual scenario to the extent of recruitment to the posts of Subedars Platoon Commandants and Inspectors of Police in pursuance to an advertisement and disqualification of one of the candidates being assailed resulted in a judgment of this Court in State of Madhya Pradesh &Ors. v. Abhijit Singh Pawar4 by a two Judge Bench. Suffice to say in the factual context a case registered in the year 2006 was pending on the date when affidavit was tendered and within four days the compromise was entered into between the original complainant and the respondent. An application for compounding was filed. The compounding was found to be permissible as it dealt with offences under Sections 294 325 34 323 506 Part II of the IPC and on discussion of the legal principle enunciated in the earlier judgments it was opined that the earlier judgment in the case of Commissioner of Police v Mehar Singh5 it was opined that there is no doubt about the proposition that even after the disclosure is made by a candidate the employer would be well within his rights to consider the antecedent and suitability of the candidate In this context it was held the employer is entitled to 4(2018) 18 SCC 733 5(2013) 7 SCC 685 take into account the job profile for which the selection is undertaken the severity of the charge levelled against the candidate and whether acquittal in question was an honourable acquittal or was merely on the ground of benefit of doubt as a result of composition. We may also add that one aspect which was noticed which is common with the present case is the absence of any suggestion that the decision was actuated by malafide or suffered on other accounts except the issue raised of the subsequent circular A reference was also made to Anil Bharadwaj v. High Court of Madhya Pradesh & Ors.6 where once again a two Judge Bench of this Court found that a criminal case against the candidate under Sections 498A 406 34 of the IPC was pending consideration on a complaint filed by the wife and thus the rejection of candidature could not be said to be unsustainable. While saying so the Court also opined that the plea that the deletion of the name would result in stigma against the candidate was not sustainable since the candidate already stood acquitted. On the other hand learned counsel for the respondent sought to distinguish some of the judgments on the factual matrix while also referring to certain other 62020 SCC Online SC 832 pronouncements. In this behalf she referred to the judgment in Inspector General of Police v. S. Samuthiram supra) expounding as to what is meant by “honourable acquittal” in para 24 to contend that it is difficult to define precisely what is meant by the expression “honourable acquittal”. Counsel also sought to make a reference to a judgment in Joginder Singh v. State2 SCC 377 8Civil Appeal No.10571 2018 of moral turpitude to deny appointment in judicial service simplicitor but much would depend on the facts of a case. In the instant case the aspect of there being a time lapse between the alleged offence and the recruitment process was emphasised to contend that the respondent herein was about 19 years of age when the incident occurred and had now carried his life further by being successful in a competitive examination some years down the line. A reference was also made in the counter affidavit to certain judgments of the Rajasthan High Court granting relief to the candidates based on acquittal obtained on benefit of doubt Lastly a reference was made of an order passed by this Court in SLP[C]No.15351 2020 dated 21.01.2020 wherein an SLP was dismissed against a direction for appointment of a candidate where the order was giving benefit of doubt to the candidates in a criminal case. We may however note that firstly that this is an order and not a judgment and secondly it has been clearly stated that the dismissal was “in the given facts and circumstances of the case” Examining the controversy in the present case in the conspectus of the aforesaid legal position what is important to note is the fact that the view of this Court has depended on the nature of offence charged and the result of the same. The mere fact of an acquittal would not suffice but rather it would depend on whether it is a clean acquittal based on total absence of evidence or in the criminal jurisprudence requiring the case to be proved beyond reasonable doubt that parameter having not been met benefit of doubt has been granted to the accused. No doubt in that facts of the present case the person who ran the tractor over the deceased lady was one of the other co accused but the role assigned to the others including the respondent herein was not of a mere bystander or being present at site. The attack with knives was alleged against all the other co accused including the respondent We may also notice this is a clear case where the endeavour was to settle the dispute albeit not with the job in mind. This is obvious from the recital in the judgment of the Trial Court that the compoundable offences were first compounded during trial but since the offence under Section 302 34 IPC could not be compounded the Trial Court continued and qua those offences the witnesses turned hostile. We are of the view that this can hardly fall under the category of a clean acquittal and the Judge was thus right in using the terminology of benefit of doubt in respect of such acquittal The judgment in Avtar Singh’s case on the relevant parameter extracted aforesaid clearly stipulates that where in respect of a heinous or serious nature of crime the acquittal is based on a benefit of reasonable doubt that cannot make the candidate eligible. We may also note the submission of learned counsel for the respondent that as per para 38.3 in Avtar Singh’s case the employer has to take into consideration the Government orders instructions rules applicable to the employee at the time of taking a decision. It is her say that the issue whether the circular dated 28.03.2017 would apply or not was res integra in view of the earlier order of the learned Judge dated 14.05.2018. She has further contended that in any case the circular had come into force and as per the judgment in Avtar Singh’s case (supra para 38.4 it is the date of decision which is material and as on the date of decision dated 23.05.2017 the said circular was applicable We may note here that the circular dated 28.03.2017 is undoubtedly very wide in its application. It seeks to give the benefit to candidates including those acquitted by the Court by giving benefit of doubt. However such circular has to be read in the context of the judicial pronouncements and when this Court has repeatedly opined that giving benefit of doubt would not entitle candidate for appointment despite the circular the impugned decision of the competent authority dated 23.05.2017 cannot be said to suffer from infirmity as being in violation of the circular when it is in conformity with the law laid down by this Court We are thus of the view that the impugned orders cannot be sustained and the appellants are well within their rights to have issued the order dated 23.05.2017. The consequence is that the appeal is allowed and the impugned judgment of the Division Bench dated 16.07.2019 and learned Single Judge dated 14.05.2018 are set aside leaving the parties to bear their own costs SANJAY KISHAN KAUL R. SUBHASH REDDY NEW DELHI MARCH 24 2021

Order to shut down the premises operating commercial  activities without permission and  in violation of environment norms passed – NATIONAL GREEN TRIBUNAL

Order to shut down the premises operating commercial  activities without permission and  in violation of environment norms passed – NATIONAL GREEN TRIBUNAL A complaint was filed against the factories and other premises where commercial activities are operated without permission and are in violation of various environmental norms. The tribunal takes cognizance in the matter and passes an order to regulate and seal down these premises the order was passed by a three-member bench of  HON’BLE MR. JUSTICE SUDHIR AGARWAL, HON’BLE DR. NAGIN NANDA, and HON’BLE DR. AFROZ AHMAD in the case of Rajeev Aggarwal versus North Delhi Municipal Corporation & Ors(Original Application No. 207/2021) An order was passed concerning the complaint and the authorities were appointed and directed to undertake the study of the situation and remedial measures required. DPCC will be the nodal agency for coordination and compliance and the committee may make recommendations for safety, sanitation, hygiene, and a pollution-free environment. The Committee may make a brief survey of the carrying capacity of the recipient environment to sustain the nature and extent of activities. The Committee may not limit its deliberation only to the area specified by the applicant but also cover other such places in the city. Following the order, reports were filed by the DPCC   The report findings show that the ten premises mentioned by the applicant in the original application were inspected by joint Committee and they found that in three places, impermissible activities were going on and those premises have been sealed and the remaining premises are either small shops or vacant places and doing permissible activities. Similar reports are being submitted by the  Deputy Commissioner of Police and it was found that the premises where unauthorized and impermissible activities were going on were sealed Out of the remaining 7 premises, 5 were vacant and two were found being used as shops with permissible activities. Certain recommendations were made by the joint committee which was that the buildings can be allowed to operate only in specific areas and no industrial setup should be allowed in a residential area and the existing shops can operate by obtaining special permissions. These recommendations were given by the committee. The reports also stated that the show-cause notice of Rs. 2 lakhs on each violator should be imposed as environmental compensation and no objections have been filed in this matter. The reports were accepted by the tribunal and it was considered that the concerned authorities shall ensure recovery of environmental compensation from the concerned violators in not later than three months The direction will not preclude the concerned Statutory Regulator from taking such other and further action as permissible in law after giving due opportunity to all concerned parties and the application is disposed of accordingly.

Item No. 03 BEFORE THE NATIONAL GREEN TRIBUNAL SPECIAL BENCH By Video Conferencing) Original Application No. 207 2021 With reports dated 15.12.2021 & 20.01.2022) Rajeev Aggarwal Applicant North Delhi Municipal Corporation & Ors. Date of hearing: 25.01.2022 Respondent(s) CORAM: HON’BLE MR. JUSTICE SUDHIR AGARWAL JUDICIAL MEMBER HON’BLE DR. NAGIN NANDA EXPERT MEMBER HON’BLE DR. AFROZ AHMAD EXPERT MEMBER Mr. Balendu Shekhar Advocate for DPCC The complaint of applicant is that factories and commercial activities in residential areas are going on in violation of environmental norms. Reference of such activitieshas been given in the application by applicant. Taking cognizance of the said complaint Tribunal passed order on 23.08.2021 and operative part of the order reads as under: “8. Accordingly we direct the Monitoring Committee appointed by the Hon’ble Supreme Court comprising:Chief Secretary of Delhi iii) Commissioner Municipal Commissioner of Police Delhi Corporation of Delhi andVice Chairman of the Delhi Development Authority through responsible officers subordinate to them preferably a joint Committee comprising of Commissioner North Delhi Municipal Corporation Special Commissioner of Police North Member Secretary DPCC and District Magistrate North to undertake study of the situation and remedial measures required. DPCC will be the nodal agency for coordination and compliance. The Committee may hold its first meeting within 15 days from today and take cognizance of the problem. The Committee will be at liberty to co opt any other officers of any other area in Delhi or any other Expert Institution. The Committee may interact with the stakeholders including the Resident Representatives. The Committee may make recommendations for safety sanitation hygiene and the pollution free environment. The Committee may make a brief survey of the carrying capacity of the recipient environment to sustain nature and extent of activities. The Committee may not limit its deliberation only to the area specified by the applicant but also cover other such places in the city. It may verify status of industrial operations in question as well as other industries in existence and current status of compliance of Hon ble Supreme Court order. Besides verifying operation of industries in non conforming areas sources of water and power supply drainage status and air quality status be ascertained. A factual and action taken report in the matter be furnished within two months by e mail at judicialngt@gov.in preferably in the form of searchable PDF OCR Support PDF and not in the form of Image PDF.” Pursuant thereto reports have been filed by DPCC and Deputy Commissioner of Police North District Delhi. Report of DPCC states that the ten premises mentioned by applicant in the original application were inspected by joint Committee and they found that in three places impermissible activities were going on and those premises have been sealed. In respect of remaining premises it is said that either they are vacant or small shops with permissible activities are running. Relevant paragraphs 4 and 5 of DPCC report read as under: “4. That to comply with the above orders the Principal Secretary Env. & Forests) cum Chairman DPCC has taken a meeting on 27.09.2021 with all stake holders. In the meeting various executing agencies like DM Dy. Commissioner North DMC and Joint CommissionerDelhi Police were present. Following decisions were taken. a. A team consisting of the officials of DPCC North DMC District Magistrateand Delhi Police shall carry out joint inspection of the said area on 01.10.2021. DPCC lab shall also conduct Noise monitoring during the inspection if required. b. The team besides verifying operation of industries in non conforming areas shall also ascertain the sources of water and power supply drainage status and status of air quality. The team shall undertake the study of situation and remedial measures required and take cognizance of the d. The team will interact with the stake holders including the Resident Welfare Associations NGOs in the area and Representatives. The team shall recommend regarding the safety sanitation hygiene and the pollution free environment and make a brief survey of the carrying capacity of the recipient environment to sustain nature and extent of activities. The North Delhi Municipal Corporation shall provide the details of the action taken so far against the illegal units found operating in the entire jurisdiction and expressly Nai Sadak areas. Copy of the minutes of the meeting dated 27.09.2021 is enclosed herewith as ANNEXURE 1. 5. That the Joint Committee inspected the sites as mentioned in the order passed by this Hon‘ble Tribunal on 01.10.2021 and 08.10.2021. Copy of the report of committee is enclosed herewith as ANNEXURE 2. The status of the inspection in brief is as under: Premises mentioned in the order dated 23.08.2021: Stitching activity observed: Premises sealed: Show cause notice was issued for imposition of EDC Premises being used for commercial activity: Premises found Vacant: The joint committee recommended the following: That the buildings used for manufacturing godown should be allowed only in the specified area with necessary approvals from the concerned departments such as MCD Fire Department Labour Department industry department Delhi Govt.) DPCC etc. II. No industrial setup should be allowed in residential area or non confirming area as per the Master Plan of Delhi (DMP). III. No electricity connection should be given by the NDPL BSES to such industrial activity or godowns or other activities which are violating DMP. IV. The shops existing in the said area should obtain relevant permission from the concerned department and MCD may proceed accordingly.” Annexure 2 of Committee’s report in para 3 to 9 states as under: Similar report has been filed by Deputy Commissioner of Police and he has given a chart of 10 premises in which premises at item 1 2 and 3 have been sealed as unauthorized and impermissible activities were going on thereat. Out of remaining 7 premises 5 were vacant and two were found being used as shops with permissible activities. Besides it is also stated that one more premises of M s Swami Saree was found to carry on with impermissible activities and the same has also been sealed. It has been stated in both the reports that show cause notices proposing Environmental Compensation of Rs. 2 lakhs on each violator have been issued by DPCC and further action is still in process. No objection has been filed by the applicant to the said reports pointing out any discrepancy in the said reports. Therefore we accept the said reports. No further order need be passed in this matter except that the concerned authorities shall ensure recovery of environmental compensation from the concerned violators expeditiously and in any case not later than three months i.e. by 30.04.2022 and recommendations of joint Committee shall be given effect by concerned authorities. This direction will not preclude concerned Statutory Regulator from taking such other and further action as permissible in law after giving due opportunity to all concerned parties. The application is disposed of accordingly. Sudhir Agarwal JM Dr. Nagin Nanda EM Dr. Afroz Ahmad EM January 25 2022 Original Application No. 207 2021

Court can quash cases of non compoundable offences under exceptional circumstances; High Court of Delhi

There are always exceptions to the normal rules and certain categories of cases, which deserve consideration especially when it is a case of a love affair between teenagers and due to fear of the society and pressure from the community one party alleges rape, cases, where the accused and the victim are well known to each other and allegation of rape, is leveled only because the accused refused to marry, and such cases can be quashed. This was held in the case of Ashish v State and Anr, [CRL.M.C. 389/2021 & Crl.M.A. 2060/2021] by Hon’ble Justice Suresh Kumar Kait in the High Court of Delhi. Petitioner is seeking quashing of FIR, under Sections 376/506 IPC, registered at police station Shakarpur, Delhi. Petitioner submitted that the misunderstanding between petitioner and prosecutrix has been resolved in terms of a Compromise Deed. He also submitted that the marriage between petitioner and prosecutrix  has been solemnized in Arya Samaj Mandir, Nakul Gali, Vishwas Nagar, Delhi on 25.09.2020 itself and they are happily living together as husband and wife. He next submits that the prosecutrix does not wish to pursue the proceedings arising out of FIR in question and her affidavit dated 06.02.2021 to this effect was placed on record. Petitioners placed reliance on the case of Sikandar Kumar Vs. State of U.T., Chandigarh,  CRM-M No.47266 of 2019, In normal circumstances, the Court would not entertain a matter when the non-compoundable offenses are heinous in nature and against the public. In the instant case, the offense, complained of is under Section 376 IPC, which is an offense of grave nature. In the eyes of law, the offense of rape is serious and non-compoundable and the Courts should not in ordinary circumstances interfere and quash the FIR that has been registered. But in cases where the accused and the victim are well known to each other and allegation of rape is leveled only because the accused refused to marry, as well as the age, educational maturity, and mental capacity, consequences of the same ought to be kept in mind when inclined to interfere.”  Court also placed reliance on the case of Parbat Bhai Aahir and Ors. vs. State of Gujrat & Ors. (AIR 2017 SC 4843) where it was held that he FIR should not be quashed in case of rape as it is a heinous offence, but when complainant/prosecutrix herself takes the initiative and states that she made the complaint due to some misunderstanding and now wants to give quietus to the misunderstanding which arose between her and the petitioner, the quashing should be allowed.

IN THE HIGH COURT OF DELHI AT NEW DELHI Decided on: 11.02.2021 CRL.M.C. 389 2021 & Crl.M.A. 2060 2021 ASHISH @ ASHISH KUMAR SAGAR Petitioner Through: AdvocateTHE STATE & ANR. Through: Mr. G.M.Farooqui Additional Public Respondents Prosecutor for State with SI Smriti Respondent No.2 complainant in HON BLE MR. JUSTICE SURESH KUMAR KAIT JUDGMENT Vide this petition petitioner is seeking quashing of FIR No. 330 2020 under Sections 376 506 IPC registered at police station Shakarpur Delhi. Notice issued. 3. Mr. G.M.Farooqui learned Additional Public Prosecutor for State accepts notice and submits that petitioner and respondent No.2 prosecutrix is present in the Court and she has been identified by SI Smriti Gupta Crl.M.C. 389 2021 Investigating Officer of this case. Learned counsel for petitioner submits the misunderstanding between petitioner and respondent No.2 prosecutrix has been resolved in terms of Compromise Deed dated 25.09.2020. He further submits that the marriage between petitioner and prosecutrix respondent No.2 has been solemnized in Arya Samaj Mandir Nakul Gali Vishwas Nagar Delhi on 25.09.2020 itself and they are happily living together as husband and wife. He next submits that respondent No.2 prosecutrix does not wish to pursue the proceedings arising out of FIR in question and her affidavit dated 06.02.2021 to this effect is placed on record. Learned Additional Public Prosecutor for State on instructions from Investigating Officer of this case submits that the factum of marriage between petitioner and respondent No.2 prosecutrix stands verified. Learned counsel for petitioner submits that to enable the parties to lead a happy married life this petition deserves to be allowed. In a somewhat similar circumstances a Bench of Punjab and Haryana High Court in CRM M No.472619 Pankaj @ Sikandar Kumar Vs. State of U.T. Chandigarh and another decided on 05.03.2020 while quashing the proceedings for the offences under Section 376 IPC has Crl.M.C. 389 2021 observed as under: “5. In normal circumstances the Court would not entertain a matter when the non compoundable offences are heinous in nature and against the public. In the instant case the offence complained of is under Section 376 IPC which is an offence of grave nature. In the eyes of law the offence of rape is serious and non compoundable and the Courts should not in ordinary circumstances interfere and quash the FIR that has been registered. However there are always exceptions to the normal rules and certain categories of cases which deserve consideration specially when it is a case of love affair between teenagers and due to fear of the society and pressure from the community one party alleges rape cases where the accused and the victim are well known to each other and allegation of rape is levelled only because the accused refused to marry as well as the age educational maturity and the mental capacity consequences of the same ought to be kept in mind when inclined to interfere.” Although as per the directions of the Hon’ble Supreme Court in Parbat Bhai Aahir and Ors. vs. State of Gujrat & Ors. the FIR should not be quashed in case of rape as it is a heinous offence but when complainant prosecutrix herself takes the initiative and states that she made the complaint due to some misunderstanding and now wants to give quietus to the misunderstanding which arose between her and the petitioner in my considered opinion in such cases there will be no purpose in continuing with the trial. Ultimately if such direction is issued the result will be of acquittal in favour of the accused but substantial public Crl.M.C. 389 2021 time shall be wasted. A similar view was taken by this court in the case of Danish Ali v. State and Anr. in Crl. M.C. 1727 2019. Taking into account the aforesaid facts and the fact that the petitioner and prosecutrix have already married on 25.09.2020 therefore this Court is inclined to quash the present FIR as no useful purpose would be served in prosecuting petitioner any further. 10. For the reasons afore recorded FIR No. 330 2020 under Sections 376 506 IPC registered at police station Shakarpur Delhi and all other proceedings arising therefrom are quashed. 11. The order be uploaded on the website of this Court forthwith. FEBRUARY 11 2021 SURESH KUMAR KAIT) JUDGE Crl.M.C. 389 2021

A penalty of cut in pension can be imposed on ground of negligence under Rule 9 of CCS (Pension) Rules, 1972: High Court of Delhi

Under Rule 9 of CCS (Pension) Rules, 1972, penalty of withholding the pension or retrial benefits, full or in part, can be imposed even on ground of negligence. Negligence has been defined in Cambridge Dictionary Online to mean ‘failure to give enough care or attention to someone or something that you are responsible for’. If there is no finding of grave misconduct during the period of one’s service there could be no question of ordering a cut in pension. If there were no grave misconduct or negligence and neither there was any finding of such nature by the enquiry officer, the penalty needs to be set aside and the same was upheld by High Court of Delhi through the learned bench led by Justice Yogesh Khanna in the case of KARAN SINGH ARYA vs. UNION OF INDIA & ANR. [W.P.(C) 4887/2020] on 17.02.2022. The facts of the case are that petitioner was appointed as a technical assistant in respondent company. The petit1ioner was promoted to the post of Scientist and a vigilance inquiry was initiated, followed by disciplinary proceedings under Rule 14 of the CCS Rules, 1965 against the petitioner on the alleged charge of doubtful integrity and lack of devotion to duty, unbecoming of an employee of the Bureau of Indian Standards. Further, the petitioner was retired prematurely under Rule 56(j)(i). The petitioner challenged the order of premature retirement by preferring a Writ Petition and the same is pending before this Court. It is the grievance of the petitioner out of four charges three charges were never proved and only one charge was proved partly per the enquiry report but a penalty was imposed upon the petitioner of withholding 10 % of his monthly pension for a period of one year. It is therefore, alleged this order was arbitrary. The petitioner’s counsel argued that there was no finding given by the enquiry officer that the petitioner was guilty of any grave misconduct or negligence and hence per settled law, the order of cut in the pension ought not to have been made. According to the facts and circumstances of the case, the Court dismissed the petition on grounds that the penalty was imposed on the petitioner after considering the findings of the inquiry report and being duly considered by a competent authority. The Court observed that “under Rule 9 of CCS (Pension) Rules, 1972, penalty of withholding the pension or retrial benefits, full or in part, can be imposed even on ground of negligence. Negligence has been defined in Cambridge Dictionary Online to mean ‘failure to give enough care or attention to someone or something that you are responsible for’. If there is no finding of grave misconduct during the period of one’s service there could be no question of ordering a cut in pension. If there were no grave misconduct or negligence and neither there was any finding of such nature by the enquiry officer, the penalty needs to be set aside.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 09th February 2022 Pronounced on: 17th February 2022 W.P.(C) 4887 2020 CM APPL.No.17646 2020 KARAN SINGH ARYA Petitioner Through: Mr.V.K.Raina and Mr.S.S.Sastry UNION OF INDIA & ANR. Advocates. Through: Mr.Neeraj Mr.Sahaj ..... Respondents Garg Mr.Vedansh Anand Mr.Rudra and Mr.Sanjay Pal Advocates for Respondent No.1. Mr. B.K. Sood and Mr. Harish Gaur Advocates for R 2 BIS. HON BLE MR. JUSTICE YOGESH KHANNA YOGESH KHANNA J. This petition is filed with the following prayers: “(i) issue a writ in the nature of mandamus and or any other writ of appropriate nature and for direction order thereby quashing setting aside impugned Memorandum order dated 30.01.2020 passed by Respondent whereby the Competent Authority has sought to impose penalty of withholding 10% of monthly pension of the petitioner for period of one year and” The brief facts of the case are: On 23.01.1989 the petitioner was appointed as a technical assistant in respondent no.2. In March 2000 the petitioner was promoted to the post of senior technical assistant and was designated as laboratory officer4887 2020 On 20.06.2011 the petit1ioner was promoted to the post of Scientist for a period of two years and was transferred to CBTO Coimbatore Tamil Nadu. On 27.08.2013 a vigilance inquiry was initiated followed by disciplinary proceedings under Rule 14 of the CCS Rules 1965 against the petitioner vide Memorandum No.Vig. 40 4 2013 2014 2288 dated 27.08.2013 on the alleged charge of doubtful integrity and lack of devotion to duty unbecoming of an employee of the Bureau of Indian Standards. On 30.06.2017 committees were constituted for conducting the review of employees of the department including of the petitioner under the Fundamental Rules viz Rule 56(j)(i) and Rule 48 of CCS Rules 1972 and the petitioner was retired prematurely under Rule 56(j)(i). In July 2018 the petitioner challenged the order of premature retirement by preferring a Writ PetitionNo.7611 of 2018 and the same is pending before this Court. On 30.05.2019 a copy of Inquiry Report dated 01.11.2017 was forwarded to petitioner and was received by the Petitioner on 04.06.2019 by the respondent No.2 wherein out of 4 charges only Article II as regards petitioner not having submitted surveillance report as per procedure was alleged proved being in violation to Rules 3(1)(ii) &of CCSRules 1964. On 30.10.2019 this Court directed the respondents to take final decision upon the petitioner s case within 4 weeks and in the W.P.(C) 4887 2020 absence of any major penalty release the retirement benefits to the petitioner making adjustments if any within six weeks thereafter. On 30.01.2020 The Hon’ble Minister Consumer Affairs Food & Public Distribution in the capacity of President of the Bureau of Indian Standards vide his decision imposed "a. penalty of withholding of 10% of monthly pension of the petitioner for a period of one year conveyed to the petitioner vide an impugned order memorandum through the DDG Bureau of Indian Standards hence this petition. It is the grievance of the petitioner out of four charges three charges were never proved and only one charge was proved partly per the enquiry report and vide a letter dated 30.01.2020 a penalty was imposed upon the petitioner of withholding 10 % of his monthly pension for a period of one year. It is alleged this order is arbitrary. The learned counsel for the petitioner referred to a memorandum dated 30.05.2019 Annexure P4 which also notes an enquiry under Rule 14 of CCS1965 was instituted against the petitioner herein to inquire into the charges framed against him vide memorandum No. Vig 40 4 2013 14 01 2288 dated 27.08.2013 and an enquiry report dated 01.11.2013 was received wherein it was held the charge under Article II was proved against him to an extent of not submitting market surveillance report as per the procedure thus violating the rules 3(1)(ii) and of the CCS Conduct) Rule 1964. The learned counsel for the petitioner referred to enquiry report dated 01.1.2017 which read as under: “Article II : The charge against Shri K.S Arya Scientist B Eastern Regional Office Kolkata while working as Scientist B BIS W.P.(C) 4887 2020 Coimbatore Branch Office Coimbatore had visited M s Sri Avathar Jewellers Erode a BIS licenseeas per IS 1417 :1.999 on the market 77.09.201 7 Shri K.S.Arya however neither submitted Surveillance report of M s. Sri Avathar Jewellels of his visit dated 22.09.2011 in the office nor the sample drawn during the visit was sent by him for independent testing. The Presenting Officer produced listed documents and two prosecution witnesses for the charge framed against the charged officer Shri K.S Arya. The Presenting Officer argued that the charged officer had visited the said licensee for market surveillance on 229.20T1 and this was vindicated by prosecution documents and prosecution witnesses. The charged officer even had also accepted that he visited the M s Sri Avathar Jewellers Erode sn 22 9 2011 for market surveillance. The argument of not sending the sample drawn during the visit by the charged officer for independent testing was become not relevant because the sample was returned to the M s Sri Avathar Jewellers Erode by the charged officer and they had also prosecution witnesses Shri Saravanan and Shri Avthar Venkatesh Manager and Owner of M s Sri Avathar Jewellers Erode respectively had confirmed during cross examination by the charged officer that they had received back the sample drawn during the visit on 22.9 2011 from the charged officer. Due to this the question of not sending the sample for independent testing did not arise. The reason for returning the sample to M s Sri Avathar Jewellers Erode drawn had not been questioned by the Presenting Officer and also it is out of context as far as charge in the Article II is concerned. Considering the above it is held that the charge in Article II against Shri. K.S.Arya is proved to the extent of not submitting the market surveillance report as per the procedure thus violating the rules 3(ii) &of CCS Conduct) Rules 1964.” It was argued there was no finding given by the enquiry officer that the petitioner is guilty of any grave misconduct or negligence and hence per settled law the order of cut in the pension ought not to have been made. He relied upon Union of India and Ors. vs. Dr.V.T.Prabhakaran 171DLT 556wherein the Court held as under: “17. In the decision reported as 1990SCC 314 D.V.Kapoor vs. UOI & Ors. with reference to Rule 9 of the CCSRules 1972 the Supreme Court held that it was apparent that the President had reserved to himself the right to withhold pension in whole or in part permanently or for a specified period but upon the condition that in the departmental inquiry or the judicial proceedings the pensioner is found guilty of grave misconduct or negligence during the period of a service. In para 9 of the decision it is observed: W.P.(C) 4887 2020 that a finding should be recorded either As seen the exercise of the power by the President is hedged with a condition precedent departmental inquiry or judicial proceedings that the pensioner committed grave misconduct or negligence in the discharge of his duty while in office subject of the charge. In the absence of such a finding the President is without authority of law to impose penalty of withholding pension as a measure of punishment.” Further in P.N.Bhatvs. Union of India and Ors. 194DLT 675 the Court held if there was no finding of grave misconduct during the period of his service there could be no question of ordering a cut in pension and hence the order of 25% cut in the pension was set aside. Thus it is argued no case was made out for violation of Rule 3(1)(ii) and of CCS Rules 1964 and as there was no grave misconduct or negligence and neither there was any finding of such nature by the enquiry officer the penalty needs to be set aside. Heard. Heard. The facts do show representation furnished by the petitioner dated 10.06.2019 was duly considered by the competent authority. In such representation the petitioner himself had admitted of the wrong committed by him and he rather submitted the following: “That the conclusion drawn by the Inquiry Authority the under visited the shop of M s Avathar Jewellers but has not sent the report to the office nor the sample drawn during the visit was sent for independent testing. It is submitted that undersigned had made it clear before the Inquiry Officer that the sample drawn " for market surveillance does not show marking details such as BIS Standard Logo Purity Logo(916) Identity mark of Jeweller Year of Marking name of Hall Marking Centre therefore the sample does not meet the requirement marking detail and was thus returned back to the licensee and on the next visit the sample was drawn for Market Surveillance and Report was accordingly submitted to the office as per Rules and sample was sent to independent testing on 30.11.2011. Therefore the conclusion arrived by the Inquiry Officer that the charge no.2 proved and undersigned has violated the Rules 3(1)andW.P.(C) 4887 2020 of CCS Rules 1964 same is not correct and without any merit and same is not sustainable under law.” The petitioner in fact in his so called representation against enquiry report rather admitted that on dated 22.09.2011 he had visited M s.Avathar Jewellers and despite the sample did not meet the requirement of marketing detail such as BIS standard logo purity logo 916) identity mark of the jewellers year of marking name of hallmarking centre he rather returned such sample to the Jeweller instead of seizing it for ulterior motive. Though such ulterior motive was never proved but nevertheless where an employee is to check such infirmities but he helps the offender by returning such impure or incorrect samples rather commits gross negligence under the law and it cannot be said his case is not of negligence though the order does not say so in specific words. 11. Admittedly the prime function of respondent no.2 is to employ officers to visit the market and to submit a market surveillance report along with samples drawn for independent testing. If such employees return such samples after seizing it would not only be violating the law but also would be acting under grave negligence considering the nature of duties they are expected to perform. The facts do show the negligence committed by the petitioner. 12. Even otherwise this Court is not supposed to substitute its decision over the decision of administrative authority. The Supreme Court has reiterated this principle of judicial review in State of M.P. v. M.V. Vyavsaya & Co. 1 SCC 156 as follows: “15. It has been repeatedly held by this Court that the power of the High Court under Article 226 of the Constitution is not akin to appellate power. It is a supervisory power. While exercising this power the court does not W.P.(C) 4887 2020 go into the merits of the decision taken by the authorities concerned but only ensures that the decision is arrived at in accordance with the procedure prescribed by law and in accordance with the principles of natural justice wherever applicable. Further where there are disputed questions of fact the High Court does not normally go into or adjudicate upon the disputed questions of fact….” 13. Under Rule 9 of CCS Rules 1972 penalty of withholding the pension or retiral benefits full or in part can be imposed even on ground of negligence. Negligence has been defined in Cambridge Dictionary Online to mean „failure to give enough care or attention to someone or something that you are responsible for‟. Misconduct has been defined in Cambridge Dictionary Online to mean „unacceptable or bad behavior by someone in a position of authority or responsibility‟. Admittedly charge no. 2 was proved against the petitioner to an extent the undersigned had not submitted Market Surveillance Report as per the procedure thus violating rules 3(1)& iii) of CCS Conduct Rules 1964. The memorandum dated 30.05.2019 and inquiry report dated 01.11.2017 is already annexed as Annexure: P 4 at Pg 31 to 44 of the paper book. 14. The petitioner in his representation against the inquiry report did not give any explanation about not submitting the market surveillance report of the visit carried out in the premises of M s Sri Avathar Jewellers Erode) dated 22.09.2011. It has rather been accepted by him during the inquiry report and in his representation he had visited M s Avathar Jewellerson 22.09.2011. 15. The representation furnished by the petitioner dated 10 06 2019 has been duly considered by the competent authority. The penalty on the petitioner has been imposed by the Hon’ble Minister of Consumer W.P.(C) 4887 2020 Affairs Food & PD in his capacity as the President of BIS after considering the findings of the inquiry report in which it has been “Considering the above it is held that the charge in Article II against Shri. K.S. Arya is proved to the extent of not submitting the market surveillance report as per the procedure thus violating the rules 3(ii) &of CCS Conduct) Rules 1964.” 16. Accordingly the penalty has been imposed as per the applicable provisions of CCS Conduct Rules 1972 and after following the due 17. The petition is accordingly dismissed. Pending application(s) if any also stands disposed of. No order as to costs. FEBRUARY 17 2022 YOGESH KHANNA J. W.P.(C) 4887 2020

In a case that has risen from Civil dispute, involvement of criminality generally is not found: Jharkhand High Court

The case arose out of a commercial transaction between the parties, the same had no bearing in the matter so long as the basic ingredients of the offence were satisfied in the case. Such an opinion was held by The Hon’ble High Court of Jharkhand before The Hon’ble Mrs. Justice Anubha Rawat Choudhary in the matter of Ravi Shankar Kumar Vs. The State of Jharkhand [Cr. Revision No. 1031 of 2012].  The facts of the case were associated with an application for criminal revision by the petitioner directly from jail. The said application was filed to challenge the legality and validity of the judgment passed by the learned 1st Additional Sessions Judge, West Singhbhum at Chaibasa dated 31.01.2012. According to the said impugned judgment, the learned Chief Judicial Magistrate had dismissed the criminal appeal. The petitioner was convicted under Sections 406 and 427 of the Indian Penal Code by the learned trial court. The Trial court had sentenced him to undergo Rigorous Imprisonment for two years under Section 406 and Rigorous Imprisonment for one year under Section 427 of the IPC. Amicus curiae for the petitioner submitted that the petitioner’s entire dispute case arose from a civil dispute between the parties. The petitioner was the Secretary of the NGO and was entrusted with stitching clothes for school children. As per the tender, the clothing was not found fit. He also submitted that nothing on record was found regarding the dishonest intention on the part of the petitioner by the courts below. The amicus curiae also stated that no evidence was found regarding the total length of cloth handed over to the petitioner. He submitted that no criminality was found in the instant case. He contended that the whole case was based upon the measurement taken at the back of the petitioner. The counsel for the opposition stated the impugned judgments were well reasoned and were based on proper evidence and no material irregularity was indicated.  Considering all the facts, The Hon’ble Court stated that “… This Court finds no illegality or material irregularity or perversity in the impugned judgments calling for interference under revisional jurisdiction. Accordingly, the judgment of conviction and the order of sentence passed by the learned trial court and confirmed by the learned appellate court is upheld and the present criminal revision is hereby dismissed.”

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 10312 Ravi Shankar Kumar son of Sri Sangeet Prasad Singh Resident of Village Oraina P.S. Muffasil District NawadaAt present residing at Retired Colony Chakradharpur District West Singhbhum… … The State of Jharkhand Versus CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY Through: Video Conferencing … … Opp. Party Petitioner 09 16.11.2021 1. Heard Mr. Yogesh Modi the learned amicus curiae appearing on behalf of the petitioner. 2. Heard Mr. Arup Kumar Dey the learned A.P.P. appearing on behalf of the Opposite Party State. The present criminal revision has been instituted on the basis of an application preferred by the petitioner directly from jail. There was delay of 19 days in preferring the criminal revision which was condoned vide order dated 04.01.2013. In the present criminal revision the legality and validity of the judgment dated 31.01.2012 passed by the learned 1st Additional Sessions Judge West Singhbhum at Chaibasa in Criminal Appeal No. 44 2011 is under challenge. The learned appellate court has confirmed the judgment of conviction and the order of sentence dated 07.04.2011 passed by the learned Chief Judicial Magistrate West Singhbhum at Chaibasa in G.R. Case No. 549 2009 arising out of Sadar P.S. Case No. 76 2009 and has dismissed the criminal appeal. The learned trial court had convicted the petitioner under Sections 406 and 427 of the Indian Penal Code and had sentenced him to undergo Rigorous Imprisonment for two years under Section 406 of the Indian Penal Code and Rigorous Imprisonment for one year under Section 427 of the Indian Penal Code. Both the sentences were directed to run concurrently and the period of custody was directed to be set Arguments on behalf of the petitioner Learned amicus curiae appearing on behalf of the petitioner submitted that the entire dispute in the present case arises out of civil dispute between the parties inasmuch as the case of the prosecution was that the petitioner being the Secretary of the NGO was entrusted with certain clothes for stitching skirts and shirts for school children. But upon measurement those skirts and shirts were not found fit as per the tender or specification given from the side of the prosecution. He submitted that the learned courts below have not recorded any finding regarding dishonest intention on the part of the petitioner rather the entire finding is in connection with entrustment and not discharging the work entrusted to the petitioner as per the specification. The learned amicus curiae submitted that in such circumstances the basic ingredients for offence under Section 405 of the Indian Penal Code which defines “criminal breach of trust” are missing and the entire dispute is in the realm of civil dispute. The learned amicus curiae further submitted that there were two categories one was for the students from Class V to VII and the other was for the students from Class VIII to X and while taking the measurement the petitioner was never informed and as per the records only one sample of skirt and shirt for each class was given under each of the category i.e. altogether four samples were given for measurement. He submitted that a number of skirts and shirts were stitched and measurement of one skirt and one shirt with regard to each category could not have led to the conclusion that the entire stock was not matching with the specifications of the tender. He further submitted that as per the evidence of P.W. 1 two persons namely Shekhar Pradhan and Badrinath Munda were entrusted for the purpose of measurement of finished dresses. But so far as the evidence of P.W. 6 Meghnath Gope is concerned who is said to have measured the clothes no such work of measurement was assigned. He submitted that the evidence of P.W. 6 is of no consequence as he was never directed to measure the stitched skirts and shirts. The learned amicus submitted that the aforesaid aspects of the matter have not been properly considered by the learned courts below and accordingly the impugned judgments are perverse and cannot be sustained in the eyes of law. The learned amicus curiae also submitted that there is no evidence on record to indicate as to what was the total length of cloth handed over to the petitioner and it is not the case of the prosecution that any portion of the length of cloth entrusted to the petitioner has been misappropriated by him. He also submitted that it is a simple case of entrustment of clothes for stitching and the final stitched items were not found satisfactory in terms of the parameters prescribed as per the contract between the parties and as such no criminality is involved in the present case. He also submitted that the entire prosecution case is based on the measurement taken at the back of the petitioner. Arguments on behalf of the Opposite Party State The learned A.P.P. appearing on behalf of Opposite Party State on the other hand opposed the prayer and submitted that the impugned judgments are well reasoned judgments based on the evidences on record and they are neither perverse nor illegal and no material irregularity has been indicated by the learned amicus curiae appearing on behalf of the petitioner calling for any interference in revisional Findings of this Court 10. The prosecution case is based on the typed report of Sanjay Kumar Thakur District Welfare Officer West Singhbhum at Chaibasa stating therein that an advertisement was published on 20.11.2008 in daily newspaper ‘Dainik Jagran’ inviting tender for stitching of half shirt full shirt half pant full pant and skirt for the students of Class I to X residing in the residential school hostel run under the welfare department for the Financial Year 2008 2009. In view of the tender the proposal of the NGO ‘Siddhant’ was accepted in terms of the conditions contained in the Office Letter No.1135 K dated 17.09.2009. The clothes worth of Rs.1 84 944 was made available to the NGO for stitching which was received by its Secretary namely Ravi Shankar and the NGO was directed to deliver the dresses to the B.D.O. Manoharpur and to obtain receipt from there and to submit the receipt in the office of the District Welfare Officer for needful. It was further stated that the dresses were stitched and 1150 pieces of shirts and skirts each were delivered to the B.D.O. Manoharpur by Binod the Office in charge of the NGO and bill of Rs.46 000 towards charge of stitching was produced before the District Welfare Officer West Singhbhum at Chaibasa. Thereafter the B.D.O. Manoharpur was directed to submit a report regarding the quality of the supplied materials. Subsequently the B.D.O. Manoharpur submitted its report that the stitched items were found below the required measurement and that the NGO saved the clothes during stitching and also damaged the clothes. 11. On the basis of the typed report the case was registered as Sadar P.S. Case No. 76 2009 under Sections 406 409 427 120(B) and 420 of the Indian Penal Code against the petitioner and one Binod Kumar. After completion of investigation charge sheet was submitted against the petitioner and investigation against Binod Kumar. On 19.03.2010 cognizance of the offence under Sections 406 409 427 420 and 120(B) of the Indian Penal Code was taken and thereafter charges were framed under the same sections to which the petitioner pleaded not guilty and claimed to be tried. In course of trial the prosecution examined altogether 11 witnesses to prove its case. P.W. 1 is Sanjay Kumar Thakur District Welfare Officer who is the Informant of the case P.W. 2 is Dilip Kumar Mukhiya Assistant posted at District Welfare Office Chaibasa P.W. 3 is Dinesh Jha Head Clerk posted at District Welfare Office Chaibasa P.W. 4 is Baidyanath Oraon Block Development Officer Manoharpur P.W. 5 is Uma Shankar Prasad In charge Block Welfare Office at Manoharpur Block P.W. 6 is Meghnath Gope who claimed himself as a tailor P.W.7 is Shekhar Pradhan who claimed himself as a tailor running his shop named ‘Puja Ladies Tailor P.W. 8 is Sikandar Prasad Yadav A.S.I. who brought the Material Exhibits finished clothes) before the trial court P.W. 9 is Badri Nath Singh Munda Choukidar Welfare Office at Manoharpur Block P.W. 10 is Shyam Sundar Mandal A.S.I. who Investigating Officer of the case and P.W. 11 is Dhaneshwar Pahan who is an employee of District Welfare Office. 13. After closure of prosecution evidence the statements of the petitioner were recorded under Section 313 of Cr.P.C. wherein he denied the incriminating evidences put to him and further denied to have caused any loss or damage to the Government and also denied any act of conspiracy in the matter. He stated in his defence that he had obtained information from different departments under the Right to Information Act 2005 on the basis of which he has filed complaints before the Hon’ble Lokayukt Jharkhand. On 30.11.2009 the D.C. Chaibasa had admitted the allegations and informed him that his predecessor had adopted irregularities in connection with the development funds. Out of 10 complaints 9 are still pending. He further stated that he had filed two writ petitions and P.I.L. before the Hon’ble Jharkhand High Court. Due these reasons local district administration became biased and instituted the present false case against him. The petitioner did not adduce any evidence in his defence. 14. The learned trial court considered the materials on record and recorded its findings that the petitioner received bundle of clothes entered in the Stock Register maintained at the office of the District Welfare Officer Chaibasa and he and his N.G.O. was entrusted to complete the work for supplying the finished school dresses for which a valid tender was advertised in ‘Dainik Jagran’ daily. The trial court recorded that the material exhibits brought on record by P.W. 8 and evidences of two tailors P.W. 6 and P.W. 7 clearly proved the fact that the school dresses supplied by the petitioner and his N.G.O. were short in size what was required in terms of the advertisement tender. Therefore a case of criminal breach of trust was established beyond all reasonable doubts. The learned trial court further recorded that a considerable loss and damages to the property of the Government has been caused by the conduct of the petitioner and his N.G.O. The learned trial court convicted the petitioner under Sections 406 and 427 of the Indian Penal Code and sentenced him as mentioned above. However the learned trial court acquitted the petitioner from the charges under Sections 409 120(B) and 420 of the Indian Penal Code. 15. The learned appellate court also considered the materials on record and recorded its findings at Para 6 which read as The base of the case is the measurement of clothes made by two tailors. The evidence of those of the tailors have been recorded as P.W. 6 and P.W. 7. They have categorically stated that the sample of two pieces of stitched shirt and skirt were brought before them which were not found as per their measurement and PW 3

The power granted under Section 482 Cr.PC power can be exercised only when no other remedy is available to the applicant and not where a specific remedy is provided by the statute.: Meghalaya High Court

Section 482 Cr.P.C deals with the exercise of the power of the Court to essentially prevent abuse of the process of the court, to give effect to an order under the Code and to secure the ends of justice as upheld by the High Court of Meghalaya through the learned bench led by Justice W. Diengdoh in the case of Nail Nolianson Khongwir Vs. State of Meghalaya & Anr. (Crl. Petn. No. 65 of 2021). The brief fats of the case are that an FIR was lodged by one Shri Santosh Kr. Rai informing the police that a motor vehicle accident occurred on 03.08.2019 at about 7:45 PM or so at the Golf Club, Shillong where his younger brother Master Sagar Kr. Rai aged about 12 years was knocked down by a motor bike, its driver being Shri Nail Nolianson Khongwir. As a result of the said accident, the victim suffered multiple injuries and fractures on his body and was admitted at Super Care Hospital in a critical stage. On receipt of the said FIR, Sadar PS Case No. 166(8) of 2019 u/s 279/337/338 IPC was duly registered. Accordingly, a criminal case was registered and the matter is now pending before the learned Judicial Magistrate First Class at Shillong. In the meantime, the Petitioner and the Respondent No. 2 herein have come to an understanding and compromise amongst themselves and has agreed to settle the matter amicably on the assurance of the Petitioner to settle all the expenses for the treatment of the injured. It may be mentioned that the injured was subsequently discharged from the hospital on 02.09.2019 and all the expenses amounting to ₹ 3,32,443/- was settled by the Petitioner herein. The Petitioner has then approached this Court with an application u/s 482 Cr.P.C with a prayer to quash the FIR and/or to quash the proceedings in the said GR Case No. 354(A)2019. After the perusal of the facts and hearing the learned counsels, the Hon’ble Court held, “Considering the facts and circumstances of the case, admittedly a motor vehicle accident had occurred involving the Petitioner and the said brother of Respondent No. 2 and as stated the expenses for the treatment of the injured has been borne by the Petitioner for which the parties have amicably reached a compromise in this regard, therefore to secure the ends of justice, which in the opinion of this Court has already been affected by the said compromise deed, there is no bar for this Court to exercise its inherent powers u/s 482 Cr.P.C to bring an end to the proceedings involving the parties herein. Accordingly, this petition is allowed and the proceedings of GR Case No. 354(A)2019 are hereby set aside and quashed. With the above, this petition is hereby disposed.”

Serial No. 21 Regular List HIGH COURT OF MEGHALAYA AT SHILLONG Crl. Petn. No. 621 Shri Nail Nolianson Khongwir Vs. State of Meghalaya & Anr. Date of Decision: 25.11.2021 Hon’ble Mr. Justice W. Diengdoh Judge For the Petitioner Appellant(s) For the Respondent(s) Mr. Philemon Nongbri Adv. Mr. H. Kharmih Addl. Sr. GA. for R 1. Mr. D.K. Warjri Adv. for R 2. i) Whether approved for reporting in Law journals etc.: ii) Whether approved for publication in press: An FIR dated 05.08.2019 was lodged before the Officer In Charge Sadar Traffic Branch Shillong by one Shri Santosh Kr. Rai informing the police that a motor vehicle accident occurred on 03.08.2019 at about 7:45 PM or so at the Golf Club Shillong where his younger brother Master Sagar Kr. Rai aged about 12 years was knocked down by a motor bike bearing registration No. ML05 R 3575 its driver being Shri Nail Nolianson Khongwir. As a result of the said accident the victim suffered multiple injuries and fractures on his body and was admitted at Super Care Hospital in a critical stage. On receipt of the said FIR Sadar PS Case No. 166(8) of 2019 u s 279 337 338 IPC was duly registered. In course of investigation a prima facie case u s 279 337 338 IPC was found well established against the accused person Shri Nail Nolianson Khongwir and the matter was forwarded to the competent court of jurisdiction for trial. Accordingly a criminal case being GR Case No. 354(A)2019 was registered and the matter is now pending before the learned Judicial Magistrate First Class at Shillong. The stage of the case is for framing of charge. In the meantime the Petitioner and the Respondent No. 2 herein have come to an understanding and compromise amongst themselves and has agreed to settle the matter amicably on the assurance of the Petitioner to settle all the expenses for the treatment of the injured. It may be mentioned that the injured was subsequently discharged from the hospital on 02.09.2019 and all the expenses amounting to ₹ 3 32 443 only was settled by the Petitioner herein. The copy of the compromise deed mentioned above is annexed with this petition as Annexure 5. The Petitioner has then approached this Court with an application u s 482 Cr.P.C with a prayer to quash the FIR dated 05.08.2019 and or to quash the proceedings in the said GR Case No. 354(A)2019. Heard Mr. Philemon Nongbri learned counsel for the Petitioner who has stated that on facts as stated above it is apparent that the proceedings of the said GR Case No. 354(A)2019 may be quashed solely on the ground that the parties have come to an understanding and have reached a compromise and therefore there is no justification for continuation of the same. The Complainant Respondent 2 is also no longer interested in pursuing the matter. It is also submitted that the dispute essentially involves two private parties and has no implication on the interest of society at large infact the compromise affected between the parties would create a spirit of peace and harmony which will have a positive impact on society. Therefore this is a fit case for exercise of the inherent power of this Court u s 482 Cr.P.C. In support of his argument the learned counsel for the Petitioner has cited the following cases: i) Narinder Singh & Ors v. State of Punjab and Anr:6 ii) Shri Derek Randall Jyrwa v. State of Meghalaya & Anr: Crl. iii) Shri Teilang Nongrum v. State of Meghalaya & Anr: Crl. SCC 466 Petn. No.219 Petn. No. 120 and 2021 SCC Online Megh 68. iv) Shri Basandorlang Thangkhiew v. State of Meghalaya & Anr: It is submitted that in the case of Narinder Singh(supra) the Hon’ble Supreme Court has laid down the principles and guidelines for quashing of an FIR on the basis of settlement between the parties. Paragraph 29.2 of the said judgment has been quoted by the learned counsel for the Petitioner in this regard. It is also submitted that this Court relying on the decision of the Narinder Singh case has passed suitable orders in the other cases cited above. The learned counsel has also specifically referred to the decision of this Court in the case of Basandorlang Thangkhiew(supra) and has submitted that under similar facts and circumstances the said decision was reached which would also cover the facts and circumstances of this instant Finally the learned counsel for the Petitioner has stated that this Court may be pleased to allow this petition and to quash the proceeding in the said GR Case No. 354(A)2019. 11. Mr. D.K. Warjri learned counsel for the Respondent No. 2 has submitted that it is a fact that the Petitioner and the Respondent No. 2 Complainant have compromise in the matter having breached a settlement as indicated therein and as such it would be futile to proceed with the said GR Case No. 354(A)2019. 12. Mr. H. Kharmih learned Addl. Sr. GA has submitted that since the parties involved has compromise in the matter the expenses incurred by the injured has been paid it is therefore futile for the said GR Case No. 354(A)2019 to continue. Having heard the parties and on perusal of the averments made in this petition as well as the annexures appended thereto the facts as stated is duly acknowledged. 14. Section 482 Cr.PC reads as follows: “482. Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.” 15. This section deals with the exercise of the power of the Court to essentially prevent abuse of the process of the court to give effect to an order under the Code and to secure the ends of justice. This power can be exercised only when no other remedy is available to the applicant and not where a specific remedy is provided by the statute. In the case involving the Petitioner the charges against him is one u s 279 337 338 IPC out of which Section 279 is non compoundable and as such the Trial Court would not be equipped to grant the prayer of the parties if so petitioned as one of the sections as mentioned above is non compoundable. 16. The remedy to the party parties would only be to approach the High Court u s 482 Cr.P.C as was done in this instant case. In the case of Narinder Singh(supra) cited by the Petitioner at paragraph 29.1 and 29.2 of the same the Hon’ble High Court has held as under: “29.1. Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt under Section 482 of the Code the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable where the parties have settled the matter between themselves. However this power is to be exercised sparingly and with caution. 29.2. When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed the guiding factor in such cases would be to secure: While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives.” i) ends of justice or ii) to prevent abuse of the process of any court. 18. Again considering the facts and circumstances of the case admittedly a motor vehicle accident had occurred involving the Petitioner and the said brother of Respondent No. 2 and as stated the expenses for the treatment of the injured has been borne by the Petitioner for which the parties have amicably reached a compromise in this regard therefore to secure the ends of justice which in the opinion of this Court has already been affected by the said compromise deed there is no bar for this Court to exercise its inherent powers u s 482 Cr.P.C to bring an end to the proceedings involving the parties herein. 19. Accordingly this petition is allowed and the proceedings of GR Case No. 354(A)2019 are hereby set aside and quashed. Bail bond executed by the Petitioner accused if any stands discharged. 20. The learned Magistrate First Class Shillong trying the said case is hereby directed to pass necessary orders in this connection. 21. With the above this petition is hereby disposed. No order as to cost. Judge “N. Swer Stenographer”

Sole Arbitrator Cannot Be Appointed Solely By One Party: High Court Of New Delhi

Petitioner has filed the present petition under the provisions of Section 11(6) of the Arbitration and Conciliation Act, 1996, and the same issue was held in the judgement passed by a single bench judge HON’BLE MR. JUSTICE SURESH KUMAR KAIT, in the matter  M/S ASHUTOSH BUILDERS CONTRACTORS AND ENGINEERS V. UNION OF INDIA & ORS. dealt with an issue mentioned above. Petitioner was a contractor who was engaged by the respondent on several occasions for carrying out various constructions and other activities of the respondent, were as the Petitioner seeks the appointment of a sole arbitrator for adjudication of all the disputes with respondents in terms of arbitration clause 70 of IAFW 2249. Respondent was an establishment fully controlled and supervised by the Ministry of Defence, which was stated under Union of India and also it was stated under ARB.P. 900/2021  Article 12 of the Constitution of India. In this case, Respondent No.1 was the Engineer in Chief (E-IN-C) of the Wing of Army were like the others Respondent Nos.2, 3 & 4 are subordinate offices to respondent No.1. Accordingly, Petitioner was awarded the acceptance letter of the contract agreement vide letter dated 28.06.2019 for the work “CA NO.CWE/WEST-02/2019- 20; SPL REPAIR OF ROMNEY HUTS T-156, T-165, T-166, T-167, T-168 AND T-169 OF CENTRAL STORAGE FACILITY AT CVD UNDER GE (WEST)DELHI CANTT.-10″ to the tune of Rs.31,19,233/-. Thereafter, respondent No.4 issued a work order dated 02.07.2019 to the petitioner wherein the date of commencement was mentioned as 12.07.2019 and the date of completion was mentioned as 11.01.2020. So Subsequently, again petitioner sent a letter on 05.12.2019 and stated that Hon’ble Supreme Court vide order dated 04.11.2019 has enforced the ban upon the construction activities carried in Delhi. He also stated that the ARB.P. 900/2021 work could only be started after the ban is uplifted and requests for extension of time. Later In response to the abovementioned letter, respondent no.4 vide letter dated 20.12.2019 stated that the Hon’ble Supreme Court has given relaxation in time for construction activities from 09.12.2019. Meanwhile, the petitioner sent a letter to respondent no.5 as well as TATA Steel (manufacturer) along with a letter of respondent no.4 to replace the material as rust can be seen on the CGI sheet. The learned counsel for the petitioner informed that the petitioner firm had previously sent notice for conciliation and thereafter sent a notice invoking arbitration vide notice dated 17.07.2021 under condition 70 of IAFW and requested for the appointment of a sole arbitrator to adjudicate the disputes between the parties. Respondents filed a reply to the present petition wherein it was already been stated that as per the Agreement the serving officer having requisite ARB.P. 900/2021 qualification has to be appointed as an arbitrator to adjudicate the disputes solely by the appointing authority. However, the Hon’ble Supreme Court referred, Perkins Eastman Architects DPC & Anr. vs. HSCC (India) Ltd. 2019 SCC Online SC 1517 which could help to give an accurate judgment for the present case. During this particular time, learned counsel appearing for the parties pressed that this Court may appoint Arbitrator to adjudicate the disputes pending amongst the parties. The court perused the facts and argument’s presented, it thought that- “The learned Arbitrator shall ensure compliance of Section 12 of Arbitration and Conciliation Act, 1996 before commencing the arbitration. The present petition is accordingly disposed of. The pending application also stands disposed of”.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 10.11.2021 ARB.P. 900 2021 M S ASHUTOSH BUILDERS CONTRACTORS AND ENGINEERS Petitioners Through: Ms.Seema Singh Adv. UNION OF INDIA & ORS. Through: Ms.Arti Bansal Adv. Respondents HON BLE MR. JUSTICE SURESH KUMAR KAIT JUDGMENTPetitioner has filed the present petition under the provisions of Section 11(6) of the Arbitration and Conciliation Act 1996 seeking appointment of sole arbitrator for adjudication of all the disputes with respondents in terms of arbitration clause 70 of IAFW 2249. Petitioner is a contractor and has been engaged by the respondent on several occasions for carrying out various constructions and other activities of respondent. Respondent is an establishment fully controlled and supervised by the Ministry of Defence Union of India and is a state under ARB.P. 900 2021 Article 12 of the Constitution of India. Respondent no.1 is Union of India through Engineer in Chief of the Wing of Army for carrying out works of infrastructure. Respondent nos.2 3 & 4 are subordinate offices to respondent no.1. Petitioner was awarded the acceptance letter of the contract agreement vide letter dated 28.06.2019 for the work "CA NO.CWE WEST 02 2019 20 SPL REPAIR OF ROMNEY HUTS T 156 T 165 T 166 T 167 T 168 AND T 169 OF CENTRAL STORAGE FACILITY AT CVD UNDER GE WEST)DELHI CANTT. 10" to the tune of Rs.31 19 233 . Thereafter respondent no.4 issued work order dated 02.07.2019 to the petitioner wherein date of commencement was mentioned as 12.07.2019 and date of completion was mentioned as 11.01.2020. Upon this petitioner firm issued a letter dated 26.07.2019 requesting to handover the complete vacant site and thereafter petitioner time and again sent letters dated 13.08.2019 09.09.2019 and 21.09.2019 requesting to handover Shed No. T 156 T 167 T 165. Subsequently again petitioner sent letter on 05.12.2019 and stated that Hon’ble Supreme Court vide order dated 04.11.2019 has enforced the ban upon the construction activities carried in Delhi. He also stated that the ARB.P. 900 2021 work could only be started after the ban is uplifted and requests for extension of time. In response to the abovementioned letter respondent no.4 vide letter dated 20.12.2019 stated that the Hon’ble Supreme Court has given relaxation in time for construction activities from 09.12.2019 and also alleged that no activity can be seen at the site and stated to levy compensation as time being essence of contract and granted two weeks time to cancel the contract at certain risk and cost. Thereafter petitioner again sent a letter dated 09.01.2020 respondent no.4 in response to its letter dated 20.12.2019 expressing delay attributable to the respondent while proceeding with the execution of the work at site delay in handing over site delay in taking decision at paint delay decision in installing the CG sheets etc. It is averred on behalf of the petitioner that despite of the due date of completion of work as per work Order No.1 which was expired on 11.01.2020 vacant site of the shed T 165 was not handed over. Thereafter petitioner again sent letter dated 22.01.2020 wherein stated that respondent no.4 has not granted extension of time to the petitioner and on the other side notice of levying compensation was sent but complete vacant site was not ARB.P. 900 2021 handed over to the petitioner even after lapse of due date of completion of contract work. Respondent no.4 the petitioner’s abovementioned letter sent letters dated 20.08.2020 and 21.08.2020 stating that CGI sheet of M s Bhushan has developed defect of rust from many places. Upon this petitioner sent a letter to respondent no.5 as well as TATA Steel along with letter of respondent no.4 to replace the steel material as rust can be seen on CGI sheet. 10. Petitioner being aggrieved with the high handed attitude of respondent no.4 issued legal notice on 24.10.2020 stating that site T 165 has not been handed over after lapse of 10 months from the due date of completion and also failure in providing the extension despite of numerous requests. 11. During the course of hearing learned counsel for the petitioner informed that the petitioner firm had previously sent notice for conciliation and thereafter sent a notice invoking arbitration vide notice dated 17.07.2021 under condition 70 of IAFW and requested for appointment of a sole arbitrator to adjudicate the disputes between the parties. 12. Respondents have filed reply to the present petition wherein it has been stated that as per the Agreement the serving officer having requisite ARB.P. 900 2021 qualification has to be appointed as an arbitrator to adjudicate the disputes solely by the appointing authority i.e. Chief Engineer Delhi Zone Delhi 13. Both sides have been heard and record of this case has been perused. However the Hon’ble Supreme Court in Perkins Eastman Architects DPC Anr. vs. HSCCLtd. 2019 SCC Online SC 1517 has categorically stated that no single party can be permitted to unilaterally appoint the Arbitrator as it would defeat the purpose of unbiased adjudication of dispute between the parties. The aforesaid decision in Perkins has been followed by a Coordinate Bench of this Court in Proddatur Cable TV Digi Services Vs. Citi Cable Network Limited: 267 DLT 51. Thus the Arbitrator either has to be appointed with the consensus of the parties or by this Court. 14. During the course of hearing learned counsel appearing for the parties pressed that this Court may appoint Arbitrator to adjudicate the disputes pending amongst the parties. 15. Accordingly Mr.P.B. Vijay Civil Engineer) 9810543411) is appointed sole Arbitrator to adjudicate the disputes between the parties. ARB.P. 900 2021 16. The arbitration shall be conducted under the Delhi International Arbitration Centre(Internal Management) Rules and Delhi International Arbitration CentreRules 2018. 17. The learned Arbitrator shall ensure compliance of Section 12 of Arbitration and Conciliation Act 1996 before commencing the arbitration. 18. The present petition is accordingly disposed of. 19. Pending application also stands disposed of 20. A copy of this order be sent to the learned Arbitrator for information. NOVEMBER 10 2021 JUDGE SURESH KUMAR KAIT) ARB.P. 900 2021

There is no reason to disbelieve the testimony of the minors: Delhi High Court

Testimony of a minor must not be considered invalid by default. The Court found it essential to observe the testimony of two minors in the matter of Mohd.Chand vs State (Govt. Of Nct Of Delhi) [Crl.A.No.621/2020 AND Crl.M.A. No. 17106/2020]. The decision was given by Hon’ble Ms Justice Anu Mehrotra.” The appellant was convicted under various sections of the POCSO Act, 2012 and the Indian Penal Code. The offences include aggravated sexual assault with a minor boy, along with criminal intimidation. The appellant was seeking suspension of the sentence during pendency of the appeal which was declined by the Court. The appellant and the co-convict had pleaded not guilty and demanded a trial. During the course of the trial, the victim informed the police about the incident and also identified the appellant. The child witness, a friend of the victim also gave his testimony under the sanctity of oath. It was also submitted on behalf of the appellant that there are major discrepancies in the version put forth by the child witnesses. The learned Trial Court observed that, “…there was nothing to indicate as to why the minor child victim A would falsely implicate the appellant and the co-convict in the matter and that evasive replies of ‘it is incorrect’ and ‘I do not know’ had been given by the appellant and the co-convict under Section 313 of the Cr.P.C., 1973, and the defence of the appellant had not been brought forth substantially to discredit and demolish the prosecution version.” The Court found it essential to advert to the observations laid down in Dinesh Chand Vs. State in 2019 and held, “It is essential to observe that there is no reason to disbelieve the testimony of the two minor children, i.e., the victim child A and the child witness N, in the circumstances of the case.” The judgement further stated that, “…it is only a rule of prudence that the Court finds it desirable to have the corroboration of the evidence of the child from the testimonies of the witnesses and it is not the law that if a witness is a child, his evidence shall be rejected even if it is found reliable.” Considering the circumstances, it was concluded that there was no infirmity whatsoever in the impugned judgment and the appellant merits no leniency and it is held that there is no infirmity neither in the impugned judgment dated 19.2.2020 nor the impugned order on sentence dated 20.2.2020.

IN THE HIGH COURT OF DELHI AT NEW DELHI Crl.A.No.621 2020 AND Crl.M.A. No. 17106 2020 Judgment reserved on : 22.01.2021 Date of decision : 4.2.2021 Mr.Sulaiman Mohd. Khan Advocate. ..... Appellant THE STATEOF DELHI ..... Respondent Through: Mr. Ashok Kr. Garg APP for State. CORAM: HON BLE MS. JUSTICE ANU MALHOTRA ANU MALHOTRA J. The appellant vide the present appeal assails the impugned judgment dated 19.2.2020 and the impugned order on sentence dated 20.2.2020 of the learned Trial Court of the Additional Sessions Judge Special Court) 04 POCSO in relation to FIR No. 113 2016 Police Station Aman Vihar whereby the appellant herein along with the co convict Mohd. Sajid @ Benam was convicted for the offence punishable under Section 6 of the POCSO Act 2012 and under Section 506 34 of the Indian Penal Code 1860 for having subjected the minor child ‘A’ aged 13 years to gang penetrative sexual assault in terms of Section 5 of the POCSO Act 2012 which amounts to aggravated penetrative sexual assault as also qua the offence of Crl.A. 621 2020 commission of criminal intimidation to the victim ‘A’ and were sentenced as under: For the offence U s 6 of the POCSO Act the offence U S 506 34 IPC Rigorous Imprisonment for ten years each a1ongwith a fine of Rs.5 000 each. In default of payment of fine the convicts were directed to undergo Simple Imprisonment for 30 days each. Simple Imprisonment for three years each alongwith a fine of Rs.3 000 each. In default of payment of fine the convicts were directed to undergo Simple Imprisonment for 30 days each . with both the sentences having been directed to run concurrently the fine in the instant case having observed to have not been paid with the benefit of Section 428 of the Cr.P.C. 1973 having also been given to the appellant and the co convict. Along with the appeal was Crl.M.A. No.17079 2020 filed on behalf of the appellant herein namely Chand for condonation of 206 days’ delay in institution of the appeal which was allowed vide order dated 9.12.2020. Vide order dated 9.12.2020 the Crl.M.(Bail) No. 8424 2020 filed on behalf of the appellant seeking suspension of sentence during the pendency of the appeal was declined. The report was called for from the Registry as to whether any appeal had been filed by the co convict Mohd. Sajid @ Benam qua which the report has been received dated 19.1.2021 from the Registry Crl.A. 621 2020 to the effect that there is no appeal filed by the co convict Mohd. Sajid Benam in relation to FIR No. 113 16 Police Station Aman Vihar. The Trial Court Record was requisitioned and has been received and perused. JCL(A1) was also found involved in the matter and the charge sheet qua him was filed before the JJB with the charge sheet having been filed under Section 377 506 34 of the Indian Penal Code 1860 and under Section 6 of the POCSO Act 2012 against the appellant herein as well as against the co convict Mohd. Sajid @ Benam before the POCSO Court. Charges were framed against the appellant herein and the co convict on 25.7.2019 qua the offence punishable under Section 5(g) read with Section of the POCSO Act 2012 and under Section 506 34 of the Indian Penal Code 1860 with an alternative charge qua the offence punishable under Section 377 34 of the Indian Penal Code 1860 to which the appellant and the co convict had pleaded not guilty 7. Written submissions were submitted on behalf of the appellant as well as oral submissions have also been made on behalf of either and claimed trial. Charges were framed against the appellant and the co convict on 25.7.2016 in relation to the allegations levelled in the charge sheet against the appellant herein and the co convict to the effect that on 25.1.2016 at about 3 a.m. in the cabin of a truck bearing Registration No. HR 55T 2966 parked behind the Haridas Vatika Aman Vihar Delhi within the jurisdiction of PS Aman Vihar both the appellant Crl.A. 621 2020 herein and the co convict along with their accomplice JCL(A1) in furtherance of their common intention had committed gang penetrative sexual assault on the child victim ‘A’ a minor boy aged 13 years and voluntarily had carnal intercourse with him against the order of nature apart from having criminally intimidated the said minor child ‘A’ with view to cause alarm in his mind in case he raised an alarm. 18 prosecution witnesses were examined by the State: 10. The minor child ‘A’ as per the Trial Court Record was examined on 7.12.2016 in camera proceedings with the appellant herein and the co convict having been seated in a manner that they could hear the testimony of the victim but could not have any ocular contact with him. The child when he was examined on 7.12.2016 was about 13 years of age and was administered oath by the learned Trial Court after having spoken to the child asking him a few preliminary questions to ascertain whether he was capable of giving rational answers and after ascertaining that the child was capable of understanding the sanctity of oath. The child Victim ‘A’ thereafter had testified on oath to the effect that on 24.1.2016 at about 10 p.m. he had gone to watch a jagran with his friend child N near Haridass Vatika and at about 3 a.m. three boys between the age group of 18 25 years came there and asked him to accompany them as they wanted to speak to him about something and he went with them from the back gate of the jagran pandal for a distance of about 25 30 paces and when he refused to proceed further with them they beat him forcibly and made him board the cabin of an oil tanker which was lying parked there and those boys also boarded the said cabin. The child A further Crl.A. 621 2020 testified that thereafter the two boys who appeared to him to be around 20 25 years of age committed penetrative sexual assault on him through his anus one by one and the third boy who appeared to the child victim A to be around 18 years of age kept a knife at his neck asked him not to raise an alarm failing which he would stab him. The child further testified that after sometime his friend child N came there along with one uncle from the jagran in search of him and found him and on seeing that uncle and the friend N those three boys ran away. 11. The child N is stated to have been carrying a mobile phone at that time and the uncle thus asked him to make a call at number 100 and thus the child N made a call to the police and thereafter after five minutes of the call the PCR van came to the spot. The local police also came to the spot and the child victim A was taken to the hospital where he was medically examined whereafter his father also reached the hospital and the victim child A was taken to the police station and his statement was recorded by the police. The victim child A identified his signatures on the statement at point ‘A’ on Ex PW 4 A. The child further stated that he went along with the police party in search of those boys in the area and he found one of those boys standing near Budh Bazar Road and he pointed out to that boy to the police to be one of those boys who had waylaid him and had committed penetrative sexual assault on him and then that boy was arrested by the police and his name was learnt to be as Chand i.e. the appellant herein. 12. The child A further testified to the documents i.e. the arrest memo personal search memo and disclosure statement of the Crl.A. 621 2020 appellant having been prepared by the Investigating Officer on which he stated that he had signed being Ex. PW 4 B to D and also testified to Ex.PW 4 E being the pointing out memo of the spot of the incident prepared at his behest by the Investigating Officer. He also stated he had shown him the place of the incident to the Investigating Officer who prepared the site plan and that the child victim A also pointed out towards the cabin of the oil tanker which was lying parked near the main gate of the police station which oil tanker was also seized vide the seizure memo vide Ex.PW 4 G bearing his signatures thereon. The child A further stated that the accused i.e. the appellant herein was brought to the police station and that he disclosed the names of the two other co accused boys as Benam and JCL(A1). Thereafter the police party had taken him to the house of the other two co accused but they were not present at their rented accommodation. The child also stated that his statement had also been recorded prior to his testimony by a Judge and was thus shown his statement under Section 164 Cr.P.C. taken out from a sealed cover on which the child identified his signatures at point A on Ex.PW 4 H. It was also stated by this Child witness A that on 15.4.2016 he had received a call from the police and he was asked to come to the police station and accompany the police party in searching the co accused persons and went near the Chaudhary Baldev Senior Secondary School where the co convict Benam was present and the child A pointed him out to the police and that Benam @ Sajidwas arrested and the documents in relation to his arrest were prepared. Crl.A. 621 2020 Inter alia the child victim A had stated that he had informed the police that the accused had shown him a knife and had held him by his hand. The child victim ‘A’ further stated that the police had called him at the police station again after some days and the police had shown him a video clip and he was asked to identify A1 ie. the JCL and he duly identified him in the said video clip. The child identified the tanker through the photographs placed on record. The identity of the tanker was not disputed on behalf of the defence. 14. During the course of the trial the child victim A also identified the appellant herein and the co convict Mohd. Sajid @ Benam in the Court correctly. Inter alia during the course of his cross examination on behalf of the appellant and the co convict it was stated by the child victim A that he can read and write English and that he also gave the registration number of the oil tanker as HR 55T 2966 and stated that there were other vehicles apart from the tanker at that time. He also stated that whilst he was being forcibly taken by the accused persons he had raised an alarm but they gave him beatings and he had to stop screaming. The child victim A denied that he knew the co convict Mohd. Sajid @ Benam and used to go to the Mosque to offer Namaz on Fridays. He stated that when his friend came along with an uncle no public person had gathered there at that time. He also stated that the accused persons had taken the knife along with them at the time of fleeing from the spot. The child also denied that the accused since convicted Benam used to study in his school. He inter alia stated that he never made any complaint of the similar nature to the police prior Crl.A. 621 2020 to this incident and stated that he did not know who had organized the jagran and for what occasion it was being done. He stated that the jagran was a family function of the organizer and people were coming and going and that the organizers were not even known to his friend N. He stated further that there was only one gate for entry and exit of the persons attending the jagran and from inside the pandal there was a separate entry from the back side for taking prasad food. He further stated that there was only one camera in that jagran. He stated that he had taken dinner at the jagran. He stated further that he had not given the facial description and clothing of the accused persons in his statement and but had given their age only. The child victim A stated that he did not know whether at the place in front of the jagran there was any SBI and ICICI ATM and stated that in front of the jagran venue is Vijay Dharam Kanta but denied that the tanker was standing in a gali in front of that Vijay Dharam Kanta and stated that the tanker was on the way between the venue of jagran and Vijay Dharam Kanta. He stated that he did not know the colour of the seat of the tanker on which he was laid. The child victim A further denied that he is a pickpocket or that any injury was caused while he had fallen down in a chase by people whose pocket was picked by him at that time or that people in the jagran had pulled him by his legs due to which his pant had gone off and some pointed object might have struck his anus. He denied that small pebbles and concrete pieces were lying scattered near the venue of the jagran. The child victim A further denied that he had falsely identified the accused persons to be the assailants and denied that the offence was committed with him in a truck which was Crl.A. 621 2020 very much close to the jagran venue or that no offence was committed upon him by the accused persons or that he had testified falsely at the instance of the police to save himself from the case of pick pocketing and had cooked up a false story of a sexual assault in order to divert the attention of the entire police present at the spot. The child victim A also denied that he being a pick pocketer was habitual in going to functions to pick pockets there. 16. The other child witness N examined as PW 5 the friend of the child victim A was also aged 13 years at the time of his examination on 7.12.2016 the same date when the child Victim A was examined as PW 4. PW 5 the child witness N was also administered oath by the learned Trial Court after ascertaining the capability of the said child to understand the sanctity of oath. This child stated that the child victim A is his friend and resides in his neighbourhood. He stated that on 24.1.2016 he and the child victim A had gone to attend the jagran of Khatu Shyam Ji being held at Baba Haridass Vatika and at about 3.00 a.m. when they were both inside the pandal three boys came there and they called the child victim A outside on the pretext of discussing something with him and the child victim A went out of the pandal from the back gate with the said three boys. This child witness stated that he too followed them but one other person hit him with a belt and asked him to go back so he went back. He stated further that there three four other friends of his in jagran and that he told them about the said three boys having taken away the child victim A and they all came out of the pandal from the back gate in order to search the child victim A but five six boys blocked their way and gave beatings to Crl.A. 621 2020 them. This child witness N stated that he came back to the pandal again and there he found one uncle and told him the entire facts and he took the child witness N on his scooty to make a search for the child victim A and then they met some other boys who told them that the child victim A the member of their team had been waylaid by three boys in a tanker which was found halted there bearing registration no. HR 55T 2966. The child witness N further stated that the said uncle knocked the door of the cabin of the tanker and one of the boys opened the glass and told them that they were truckwalas and were sleeping there and that when that uncle asked him to open the door they all ran away through the other gate. The child witness N i.e. PW 5 further stated that the child victim i.e. A was found inside the cabin with his pant half removed and on the asking of that uncle he i.e. N made a call to the police at number 100 and the police came there. The child N further stated that the child victim A was in a state of shock and was not able to tell the facts properly and he i.e. N told the facts to the police after asking them from the child victim and thereafter the police took the child victim A to the hospital for his medical examination and he i.e. N was also taken to the police station. 17. This child witness N on being cross examined by the counsel for the accused persons i.e. the appellant herein and the co convict Mohd. Sajid @ Benam stated that he did not raise alarm after being hit by a belt by the boy because his other associates were present there and stated that he did not inform about the said three boys having waylaid the child victim A initially to anyone in the pandal but had Crl.A. 621 2020 told it to other boys of his team. This child witness N however stated that the entire area of the pandal was covered by the camera but stated that he did not remember the name of that uncle. Inter alia the child witness N stated that at that time he had a Karbon mobile with him but did not remember its number at the time of his testimony nor did he remember the name of the police officer who had recorded his statement though he stated that he had come with the same police officer who had recorded his statement to the Court that dayhe came out of the pandal as he was feeling tired because had been sitting in the jagran from 10 p.m. onwards and there he saw a child aged about 12 13 years weeping and he asked him the reason of his weeping he told him that 2 3 boys had forcibly taken Crl.A. 621 2020 away his friend at the back side of the pandal and pleaded with him to help him in tracing his friend. PW 9 stated that he went along with that boy whose name he did not remember towards the backside of the pandal on foot and they had moved about 50 paces when he found an oil tanker lying there and also found 2 3 boys passing through the road in front of the tanker and thus he made an inquiry from them as to whether they had seen some boys forcibly taking another boy to which one of the boys told him that some children are there in the cabin of the tanker. PW 9 stated that he knocked at the door of the cabin of that tanker which led to the opening of the latch and he saw 2 3 boys jumping and running out of the other gate of the cabin and saw a child whose pant was lying half removed and he brought him down from the cabin and asked him as to how he had come there and it was informed by the child that 3 unknown boys had forcibly taken him to the tanker and at that time as the battery of mobile of PW 9 was dead he made a call to the police at number 100 from the mobile phone of that boy with whom he had been searching this boy child victim A) and then the police of the PCR as well as from the police station came and thereafter PW 9 left the spot and went back home and he was called by the police next day and an enquiry was made from him and his statement was recorded. 20. This witness PW 9 however on being cross examined by the learned Additional Public Prosecutor for the State denied that the child victim A had told him that the three boys who had forcibly taken him to the tanker had committed penetrative sexual assault upon him per annum on the point of a knife and denied that he had deliberately Crl.A. 621 2020 persons. concealed this material fact from the Court to save the accused 21. PW 10 examined by the State was Dr.Gurdeep CMO SGM Hospital Mangol Puri Delhi who stated that he had seen the MLC No. 1283 and 1330 in the name of the child male aged 13 years dated 25.01.2016 who had been brought to the casualty for the medical examination by Constable Bhargav at about 6:35 a.m. with the alleged history of sexual assault sodomy by 3 persons and that the patient was examined by Dr.Rajesh in casualty and on local examination an abrasion was found present over the anal region and that Dr.Rajesh had prepared the MLC and made observations on the MLC Ex.PW 10 B and the patient was referred to SR surgery for further opinion. It was stated by this witness Dr. Gurdeep that he could identify the handwriting and signatures of Dr.Rajesh. 22. The accused persons did not cross examine this witness Dr.Gurdeep. 23. As per the endorsement on Ex.PW 10 B the MLC of the child victim A it was mentioned to the effect: “ Alleged H o Sexual Assault sodomized by 03 persons today at about 4 a.m. as told by B B and self e e conscious oriented P 78 min vitals stable S E Non. L E Abrasion over Anal region Adv. inj. Voveron 1 im stat Surgery opinion Dr.Shashi Kant) Crl.A. 621 2020 S R Surgery” “25.1.16 9:30 Am Forensic opinion Possibility of Anal Penetration or Intercourse cannot be ruled out on the basis of Surgical Dr.Mahipal Singh 24. PW 13 Shamshad the driver of the oil tanker bearing registration No. HR 55T 2966 belonging to Arjun Bal stated that the appellant herein is the brother in law of his brother Naushad and he was working as a conductor helper with him i.e. Shamshad on that oil tanker and stated that he used to pay him Rs.5 000 as his salary and that on 24.1.2016 he had to get the fitness of the said tanker he had brought it near Haridass Vatika near Vijay Dharam Kanta Prem Nagar and had left the accused Chand on the said vehicle as he had to go to his in laws house with his wife at Dilshad Garden and on 25.1.2016 in the morning hours he received a call from the police station Aman Vihar informing him that he should reach the police station as his vehicle had been broken and he reached the police station and came to know that accused Chand i.e. the appellant herein was missing and had committed some wrong act in the tanker with a minor child with his other friends and he made search for accused Chand i.e the appellant herein with the police who was found at the house of his sister Farzana at Budh Vihar Road. Crl.A. 621 2020 25. This witness on cross examination on behalf of the accused stated that he could not produce any document before the police to show that he had been employed as driver on that tanker nor could he produce any document before the police which could show that he had employed the accused Chand i.e. the appellant herein as a helper on the said tanker and that he had been paying Rs.5000 per month to him as salary. This witness denied that it was he who committed the wrong act with the victim child or that in order to save himself he had falsely projected accused Chand i.e. the appellant herein as his helper on the said tanker. 26. This witness denied that he had not visited the police station 25.1.2016 as he was under fear that he could be recognized by the child victim as being the real assailant. 27. Apart from the above witnesses the other prosecution witnesses examined were: PW 1 Ct. Hawa Singh PW 2 ASI Nem Singh PW 3 Ct. Virender Singh PW 6 Yadunath Pandey PW 7 Mr.Shirish Aggarwal Learned MM PW 8 Arjun Bal the owner of the Oil Tanker Registration No. HR 55T 2966 PW 9 PW 11 R father of the victim child A PW 12 SI Devender PW 14 W Ct. Snehlata PW 15 Dr.Mahipal Singh PW 16 HC Munde Tuka Ram PW 17 SI Jitender Joshi and PW 18 ASI Mahender Singh Pushpender Crl.A. 621 2020 In his statement under Section 313 of the Cr.P.C. 1973 the appellant herein denied the incriminating evidence led against him and claimed innocence stating that he had been falsely implicated in the instant case and his signatures were obtained by the police on blank papers on printed proformas and denied that that he was a driver or the helper on the said tanker and stated that in order to save the real culprits he was planted as an accused in the case. 29. Through oral submissions and written submissions made on behalf of the appellant it was sought to be reiterated on behalf of the appellant that the victim child A and his friend N were pick pockets and had gone to the jagran for pick pocketing and were caught and had thus made a false story and implicated the appellant. It was also submitted on behalf of the appellant that there are major discrepancies in the version putforth by PW 5 i.e. the child witness N and PW 9 the independent witness who did not support the prosecution version in relation to the child PW 4 i.e. child victim A having informed of his having been sodomized by the accused persons. Inter alia on behalf of the appellant it was submitted that neither PW 4 i.e. the child victim A nor the Investigating Officer i.e. PW 17 nor any other witness explained as to how they learnt that the appellant could be found in Budh Bazar Road or that the appellant was the culprit and that PW 13 Shamshad the truck driver as to how he received information about the incident nor did PW 8 the owner of the oil tanker Arjun Bal inform as to how he received the information of the incident. Crl.A. 621 2020 31. On behalf of the State it was submitted that the prosecution version stood established in relation to all material particulars of the incident and the injuries caused to the minor child through sodomization were corroborated through the MLC of the minor PW 4 i.e. the child victim A. 32. The learned Trial Court vide the impugned judgment has concluded to the effect that the date of birth of the child victim A was 15.8.2002 as per records of the Saraswati Model School and thus concluded that the age of the victim A was 13 years at the time of the incident. The learned Trial Court also drew the presumption in terms of Section 29 and 30 of the POCSO Act 2012 which read to the “Section 29: Presumption as to certain offences where a person is prosecuted for committing or abetting or attempting to commit any offence under section 3 5 7 and section 9 of this Act the special court shall presume that such person has committed or abetted or attempted to commit the offence as the case may be unless the contrary is proved Section 30: Presumption of culpable mental State in any prosecution for any offence under this act which requires a culpable mental state on the part of the accused the special court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.” observing to the effect that the said presumption had not been repelled or dislodged in any manner by the appellant and the co convict and that the non recovery of the knife from Sajid was not a ground to grant any benefit to the appellant. It was also observed by the learned Trial Crl.A. 621 2020 Court that there was nothing to indicate as to why the minor child victim A would falsely implicate the appellant and the co convict in the matter and that evasive replies of ‘it is incorrect’ and ‘I do not know’ had been given by the appellant and the co convict under Section 313 of the Cr.P.C. 1973 and the defence of the appellant had not been brought forth substantially to discredit and demolish the prosecution version. It was further observed by the learned Trial Court vide observations in paragraph 45 of this verdict to the effect: “45. It has further been argued by the Id defence counsel that accused persons were not named in the FIR which falsifies the case of the prosecution. This contention of Id defence counsel is liable to be rejected as it is not the case of the prosecution that accused persons were known to the victim prior to the incident. The victim complainant had not mentioned the names of accused persons ·in his complaint which further strengthens the prosecution case and shows that victim was not acquainted with the accused persons and there was no previous enmity between the victim and accused persons. So there is no reason for victim to falsely implicate the accused persons and let go the actual assailants.” 33. As regards the minor discrepancies in the testimonies of prosecution witnesses it was observed by learned Trial Court that the testimonies of the prosecution witnesses can be accepted to the extent that their version was found to be dependable in terms of the verdict of the Hon’ble Supreme Court in State of U.P. Vs. Ramesh Prasad Mishra & Anr. AIR 1996 Supreme Court 2766 wherein it Crl.A. 621 2020 had been held by the Hon’ble Supreme Court that the evidence of a hostile witness cannot be rejected in entirety if the same has been given in favour of either the prosecution or the accused but is required to be subjected to a scrutiny and thereafter the portion of the evidence which is consistent either with a case of the prosecution or that of the defence may be relied upon. 34. The said observations of learned Trial Court are undoubtedly correct and the Trial Court has thus rightly concluded qua the veracity of depositions of PW 4 PW 5 PW 9 and PW 13. 35. It is essential to observe that there is no reason to disbelieve the testimony of the two minor children i.e. the victim child A and the child witness N in the circumstances of the case. It is essential to advert to the observations laid down in “Dinesh Chand Vs. State” a verdict dated 18.03.2019 in CRL.A.330 2018 vide paragraph 7 thereof to the effect: “7. It is essential to observe that it is only a rule of prudence that the Court always finds it desirable to have the corroboration of the evidence of a child from the testimonies of witnesses and it is not the law that if the witness is a child his evidence shall be rejected even if it is found reliable. As observed by this Court in “Afzal Vs. State 434 and as laid down by the Hon’ble Supreme Court in “Nivrutti Pandurang Kokate&Ors. Vs. State of Maharashtra” AIR 2008 SC 1460 wherein there were observations to the effect: “The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who Crl.A. 621 2020 notices his manners his apparent possession or lack of intelligence and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision trial court may however be disturbed by the higher court if from what is preserved in the records it is clear that his conclusion was erroneous. This is necessary because child witnesses are amenable to tutoring and often live in a world of make believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily shaped and moulded but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it there is no obstacle in the way of accepting the evidence of a child it is apparent that where the Court comes to the conclusion that there is an impress of truth in the statement of the minor there is no obstacle in the way of accepting the evidence of a child witness. There is nothing on the record in the instant case to indicate that the minor child examined as PW 3 had in any manner been tutored for even though he stated that he had stated what the ‘police uncle’ told him to state in the Court he categorically denied that he had identified the accused i.e. the appellant herein on the basis of what the ‘police uncle’ had told him.” to observe to the effect that it is only a rule of prudence that the Court finds it desirable to have the corroboration of the evidence of the child Crl.A. 621 2020 from the testimonies of the witnesses and it is not the law that if a witness is a child his evidence shall be rejected even if it is found reliable and thus it is essential to observe that the child victim A and child victim N have categorically supported the prosecution version in toto and the veracity of the PW5 the child witness N has brought forth clearly through his statement that in relation to the aspect of sodomization of PW 4 he had only stated on the basis of what the child victim A had informed him which itself makes it apparent that PW 5 is a truthful witness. Taking into account the totality of the circumstances of the case as brought forth through the Trial Court and conclusions drawn by the learned Trial Court and the presumptions under Sections 29 and 30 of the POCSO Act 2012 drawn by the learned Trial which had have not in any manner been repelled by the appellant the commission of aggravated gang penetrative sexual assault by the appellant in conjunction with the co accused person under Section 5(g) of the POCSO Act 2012 punishable thus under Section 6 of the POCSO Act 2012 stands established as also the offence of criminal intimidation to the minor child victim A at the point of a knife. Though the knife is stated to have been put on his neck by the boy aged around 18 years of age nevertheless the aspect of a common intent between the appellant and the co accused in this case is apparently made out and thus the appellant has been rightly convicted for the offence described under Section 5(g) of the POCSO Act 2012 punishable under Section 6 thereof as well as qua the Crl.A. 621 2020 1860. offence punishable under Section 506 34 of the Indian Penal Code In the circumstances there is no infirmity whatsoever in the impugned judgment and the appellant merits no leniency and it is held that there is no infirmity neither in the impugned judgment dated 19.2.2020 nor the impugned order on sentence dated 20.2.2020. The appeal is thus declined. However in as much as the appellant is aged about 24 years of age in terms of the verdict of Supreme Court in "Phul Singh Vs. State of Haryana" in Criminal Appeal No. 506 1979 decided on 10.09.1979 and directions laid down by us in "Sanjay vs. State" MANU DE 0430 2017 : 2017 III AD24 dated 20.02.2017 so that the "carceral period reforms the convict" as also reiterated by this Court in "Randhir @ Malang vs. State" in Crl.A. No. 456 2017 Chattu Lal vs. State" in Crl.A. No. 524 2017 "Afzal vs. StateModel Prison Manual from getting 2016 protection of associated with anti social groups agencies of moral hazards and with demoralised and deprived persons the appellant • adequate counselling being provided to the appellant to be sensitized to understand why he is in prison • conducting of Psychometric tests to measure the reformation taking place • and that the appellant may be allowed to keep contact with his family members as per the Jail rules and in accordance with the Model Prison Manual. Furthermore it is directed that a Bi annual report is submitted by the Superintendent Central Jail 03 Tihar New Delhi to this Court till the date of release of the measures being adopted for reformation and rehabilitation of the appellant. 42. Copy of this judgment be also sent to the Director General Prisons Delhi and to the Secretary Law Justice and Legislative Affairs GNCTD Delhi to ensure compliance of the above directions. 43. The CRL.A.621 2020 is disposed of accordingly. Crl.A. 621 2020 44. The Trial Court Record be returned. 45. Copy of this judgment be supplied to the appellant and be sent to the Superintendent Jail Delhi for compliance. FEBRUARY 04. 2021 SV ANU MALHOTRA J. Crl.A. 621 2020

Delay in receipt of signed arbitral award not grounds for defense in lapse of limitation period: Delhi High Court

An inordinate delay in the receipt of the signed copy of arbitral award by one of the parties cannot be held as a defense in the event of a lapse of limitation period for challenging the arbitral award. A bench constituting Manmohan J. and Menon J. delivered the judgment in Hindustan Petroleum Corporation Ltd v Delhi Transport Corporation [CM APPLs. 9555-58/2021] which dealt with the question of lapse of the limitation period and commercial unviability of the contract. The appellant and respondent companies had entered into an agreement for the supply of lubricants following the appellant’s tender bid acceptance on October 23, 2007. Due to an increase in the price of oils internationally, the appellant requested for higher purchase to which the respondent did not agree following which the appellant did not continue the order. The parties again entered into an agreement following a tender bid inquiry dated July 29, 2008. The respondent, on May 13 2010, informed the appellant through a legal notice about the damages incurred under the first tender; to which both consented to refer the dispute to arbitration. The award was passed in the favour of the respondent on 28th November 2019, who filed a petition for the execution of arbitral award on 14th August, 2020; following which the appellant challenged the arbitral award. The core issue around which the case pivots is limitation period as mentioned under S.34(3) of the Arbitration & Conciliation Act, 1996 which states that any challenge to an arbitral award shall be made within three months of the receipt of the award. In Union of India vs. Techno Trichy Engineers and Contractors [(2005) 4 SCC 239], the Supreme Court emphasized on the valid receipt of the award by the party and noted that Section 31(5) of the said Act requires a signed copy of the award to be delivered to each party. Adding further clarifications in the case of State of Himachal Pradesh vs. Himachal Techno Engineers [(2010) 12 SCC 210], the Court held that deliverance of the award in the office of a party on a non-working day, the date of such physical delivery is not the date of “receipt” of the award by that party. In the present case, the appellant made an inordinate delay in the receipt of the award itself which the Court highlighted as being contrary to the swift process of the arbitration itself. The Court observed that, “Further, even though the Appellant was informed by the learned Arbitrator that a signed copy of the award had been sent to Appellant’s office, the Appellant had sent an employee to the office of the learned Arbitrator on 6th June, 2020 i.e. much after the limitation for filing the Award had expired on 2nd March, 2020. This Court is of the view that the delay of more than two and a half months in asking for a signed copy of the award and thereafter sending an office boy to collect a copy of the signed award after four months is inexcusable as the essence of arbitration is expeditious disposal of the dispute.”

Suppl. 27 IN THE HIGH COURT OF DELHI AT NEW DELHI FAO(COMM) 44 2021 CM APPLs. 9555 58 2021 HINDUSTAN PETROLEUM CORPORATION LTD....Appellant Through: Mr.Parijat Sinha with Ms.Pallak Bhagat and Mr.Devesh Mishra DELHI TRANSPORT CORPORATION Through: Mr.Santosh Kumar Tripathi standing counsel for DTC. Date of Decision: 10th March 2021 HON BLE MR. JUSTICE MANMOHAN HON BLE MS. JUSTICE ASHA MENON JUDGMENT Present appeal has been heard by way of video conferencing. Present appeal has been filed challenging the order dated 16th February 2021 passed by the learned Single Judge wh ereby t he pet ition preferred by the Appellant against the arbitral award was dismissed by t h e Single Judge. Learned counsel for the Appellant submits that t he learn ed Sin gle Judge erred in holding that the petition challenging the award was barred by limitation. He states that the learned Single Ju dge did n ot appreciate that due to the nationwide COVID 19 lockdown and subsequent delay by FAO(COMM) 44 2021 the office of the Sole Arbitrator the signed copy of t h e Arbit ral Award was received only on 14th July 2020 by the Appellant and the Petition challenging the award was filed on 19th August 2020. Consequently according to him the petition filed by the appellant was within the limitation prescribed under Section 34(3) of the Arbitration and Conciliation Act 1996. He also submits that the Single Judge erred in holding that the claim of the Respondent was not barred by time. He st at es t hat t he Appellant communicated its inability to supply the lubricants vide let ter dated 19 th June 2008 and the limitation for filing the claim by the Respondent expired on 19th June 2011. He points ou t t hat t he Respondent filed it s claims before the learned Arbitrator on 27th March 2012 wh ich is clearly beyond the limitation period of three years. He emphasises that Respondent DTC had initially called upon the Appellant to refer the dispute to permanent machinery of arbitration to which the appellant vide letter dated 19th July 2010 had given its no objection. He however contends that subsequently the Respondent DTC unilaterally appointed a retired Judge of this Court as the Sole Arbitrator. The relevant facts of the present case are that the Respondent DTC had issued a limited inquiry dated 12th October 2007 inviting tenders from public sector oil marketing companies including the Appellant for supply of lubricants. The Appellant’s bid dated 23rd October 2007 was accept ed and purchase orders were placed upon the Appellant by t h e Respondent Subsequently on 19th June 2008 the Appellant sen t a let t er t o t he Respondent apprising it about rising oil prices in the international m arket FAO(COMM) 44 2021 and the Appellant requested that the prices of the lubricants be in creased by Rs. 20.50 per litre. The Respondent DTC did not agree to t h e requ est made by the Appellant vide letter dated 16th July 2008 and t herefore t he Appellant did not continue with the supply of the lubricants. In fact it is the case of the Appellant that that due to increase in oil prices internationally the purchase orders placed by the Respondent DTC upon the Appellant stood frustrated. On 29th July 2008 the Respondents issued a second tender in quiry and the Appellant’s bid was again selected for supplying t he sam e it ems under same terms and conditions as set ou t in t he first lim ited in quiry dated 12th October 2007. Needless to state the Appellant was re awarded the bid at a higher price. Vide legal notice dated 13th May 2010 the Respondent DTC informed the Appellant about the damages incurred by t he Respondent DTC due to non supply of items under the first tender and called upon t he Appellant to refer the dispute to permanent machinery of arbitration. Appellant vide letter dated 19th July 2010 stated that it had no objection to the arbitration reference. 10. The Respondent DTC appointed a retired Judge of this Court as t h e Sole Arbitrator with consent of the appellant who subsequently awarded a sum of Rs.1 09 22 527.42 along with interest @ 9% per annum in favour of Respondent DTC vide arbitral award dated 28th November 2019. The fact that the Sole Arbitrator had been appointed with consent of the appellant is admitted by the appellant in paragraph 2.12 of the present FAO(COMM) 44 2021 11. Subsequently the Respondent DTC filed a petition before this Court for execution of the arbitral award on 14th August 2020. 12. The appellant thereafter filed a petition dated 19th August 2020 under Section 34 of the Arbitration and Conciliation Act 1996 challenging the arbitral award. 13. The learned Single Judge of this Court by way of the impugned order dated 16th February 2021 dismissed the petition preferred by the Appellant challenging the arbitral award both on the grounds of limitation as well as merits and imposed costs of Rs. 25 000 on t he Appellant for being ‘economical with documents’. The relevant portion of the impugned order passed by the learned Single Judge is reproduced hereinbelow: “14. This Court is of the view that the present petition has been filed beyond the period of limitation as prescribed under Section 34(3) of the A&C Act. Admittedly the impugned award was received by HPCL‟s counsel on 28.11.2019 and thus HPCL was fully aware of the award against it. However it took no steps to challenge the same. Although it is asserted that HPCL had not received a signed award HPCL took no steps to collect the same. As noticed above HPCL claims that it had sent a letter dated 07.02.2020 to the learned Arbitrator regarding the same and the arbitrator had responded by informing HPCL that the signed award had been sent to HPCL‟s office. It is relevant to note that the said communication has not been placed on record. Further HPCL has also not placed on record copies of the Dak inward register to establish that it had not received any communication courier from the learned Arbitrator. 15. Even after being informed by the learned Arbitrator that a signed award has been dispatched to HPCL it took no steps to obtain a copy of the same or to challenge the impugned award. HPCL claims that it finally sent an office boy to the office of the learned Arbitrator on 06.06.2020 and received the signed award on 14.07.2020. It is material to note that HPCL has not filed any FAO(COMM) 44 2021 evidence of receiving the signed award on 14.07.2020 as claimed by it. 17. According to HPCL the three months period as stipulated under Section 34(3) of the A&C Act expired on 02.03.2020. The nationwide lockdown was declared on 23.03.2020 due to outbreak of Covid 19. According to HPCL the period of limitation stopped running from that date and therefore there is a delay of only twenty one days in filing the petition. 18. The said contention is plainly unpersuasive. The Supreme Court had by an order dated 23.03.2020 passed in Re Cognizance for Extension of Limitation: Suo Moto Writ petition Civil) No. 3 2020 extended the period of limitation in all matters till further orders. However by an order dated 06.05.2020 the Supreme Court clarified that in case the period of limitation had expired after 15.03.2020 the same would be suspended till fifteen days after the lockdown is lifted. The lockdown was lifted with effect from 01.06.2020 and therefore the period of limitation would expire on 15.06.2020. It is also doubtful whether the said orders would inure were to the benefit of HPCL since the same were only applicable to cases where the period of limitation was expiring after 15.03.2020. In the present case the time period for filing the petition had expired on 02.03.2020. 24. This Court finds no infirmity with the aforesaid view. It is trite law that merely because a contract has become financially unviable it would not absolve the contracting parties to perform the same. It is important to note that HPCL does not dispute that the prices quoted by it were to remain firm for the duration of the contract. 25. The Arbitral Tribunal also rejected the contention that the claims were barred by limitation. The Arbitral Tribunal noted that although HPCL had declined to supply lubes at the rates as agreed with effect from 15.07.2008 DTC had not accepted the same. DTC had by its letters dated 16.07.2008 and 28.07.2008 emphasized that the Contract between the parties had provided FAO(COMM) 44 2021 for a fixed rate and therefore any demand for increase in prices would be in contravention of the Contract. Since HPCL had declined to supply the lubricants at the agreed price DTC had procured the remaining quantity by inviting fresh tenders. It had thereafter issued a notice dated 13.05.2010 calling upon HPCL to settle the disputes and agree to refer the matter to the Permanent Machinery of Arbitration. 26. It is relevant to note that HPCL had by its letter dated 13.05.2010 expressed that it had no objection for “arbitration reference”. Thereafter the learned Arbitrator was appointed and DTC had filed its Statement of Claim before the learned Arbitrator in March 2012. The period of limitation would end with DTC suggesting that the disputes be referred to Permanent Machinery of Arbitration and evincing its intention to refer the disputes to arbitration. It would also end with HPCL agreeing to refer the disputes to arbitration. 27. It is not HPCL‟s case that the learned Arbitrator was appointed beyond the period of three years of it agreeing to refer the disputes to arbitration. It is also not HPCL‟s case that the Arbitral Tribunal was constituted beyond the period of 28. In view of the above this Court finds no reason to interfere with the impugned award.” It is settled law that to invoke the arbitration there should be a dispute and the dispute entails a positive element and assertion of denying not merely inaction to accede to a claim or a request.Inder Singh Rekhi Vs. Delhi Development Authority 2 SCC 338]. 15. From the facts stated hereinabove it is apparent t hat t he dispute between the parties did not arise on 19th June 2008 as contended by learned counsel for Appellant. In fact the cause of action arose wh en t he Appellant denied the claim raised by the Respondent DTC which cou ld FAO(COMM) 44 2021 have only happened after the damages had been calculated i.e. aft er t he purchase order under the second tender had been issued. Fu rther wit hin the period of three years i.e. on 19th July 2010 the Appellant h ad agreed to Respondent DTC’s suggestion to resolve the disputes between the parties by way of arbitration. It needs to be emphasised that though initially the Respondent DTC had called upon the Appellant to refer the dispute to permanent machinery of arbitration to which the Appellant had agreed vide letter dated 19th July 2010 yet subsequently a retired Judge of this Court was appointed as t h e Sole Arbitrator with the consent of the Appellant as has been admitted in paragraph 2.12 of the present appeal. Consequently invocation of the arbitration clause by the Respondent DTC was within the period of limitation. 17. This Court is in agreement with the finding of t h e learned Sin gle Judge that the Arbitral Tribunal was constituted within lim itation as t h e appointment of the Arbitrator was not beyond the period of three years of the reference being made by the parties to the arbitration. 18. Learned Single Judge has also correctly pointed out that admittedly the impugned award was received by the counsel of Appellant on 28th November 2019 itself and Appellant for the first time had sent a let t er t o the learned Arbitrator asking for a signed copy of the award on ly on 07 th February 2020. Further even though the Appellant was informed by t h e learned Arbitrator that a signed copy of the award had been sent to Appellant’s office the Appellant had sent an employee to the office of t h e learned Arbitrator on 06th June 2020 i.e. much after the limitation for filing the Award had expired on 02nd March 2020. Th is Court is of t h e FAO(COMM) 44 2021 view that the delay of more than two an d a h alf m onths in askin g for a signed copy of the award and thereafter sending an office boy to collect a copy of the signed award after four months is inexcusable as t h e essence of arbitration is expeditious disposal of the dispute. The appellant is also not entitled to the extended period of lim itation vide order of Su prem e Court dated 23rd March 2020 passed in Re Cognizance for Extension of Limitation: Suo Moto Writ PetitionNo. 3 2020 as t h e lim itation had expired prior to the onset of Covid 19 Pandemic. It is further settled law that there is clear dist in ction bet ween t he frustration of contract and the contract being commercially unviable. In the present case the contract was not frustrated but it definitely ceased t o be a commercially viable proposition for the Appellant after t he in crease of international oil prices. However commercial unviability of a cont ract is not a ground to evade performance of a contract. Consequently neither the impugned award nor the impugned order of the learned Single Ju dge calls for any interference. 20. Accordingly the present appeal along with pending applications is 21. The order be uploaded on the website forthwith. Copy of t h e order be also forwarded to the learned counsel through e mail. MANMOHAN J ASHA MENON J dismissed. MARCH 10 2021 FAO(COMM) 44 2021

Dying declaration made genuinely and naturally by the victim cannot be unreasonably disbelieved: Supreme Court

The dying declaration is the most relevant piece of evidence to which one may resort to. A dying declaration is a statement made by a prudent individual who is aware that death is inescapable due to the critical circumstances and situations which he/she had undergone and on that he considers being the cause or circumstances of his death. Thus, it is the most credible and trustworthy piece of evidence. In the case of Satpal v. State of Haryana [CRIMINAL APPEAL NO.261 OF 2021], the Supreme Court had upheld the importance of the dying declaration. The fact of the case initiates when the appeal was filed by the accused in Session Case No.20 of 2008, on the file of the learned Additional Sessions Judge, Yamuna Nagar at Jagadhri, who was aggrieved by the judgment and order dated 05th September 2016, issued by the High Court of Punjab and Haryana at Chandigarh, which confirmed his conviction and sentence for an offense under Section 302 of the Indian Penal Code (IPC). The dispute of law initiates when the deceased has stated that the appellant/ accused had poured kerosene oil on her and set her on fire. The appellant / accused, as well as three others, Kamlesh, Mitter Sain, and Anjali, the deceased’s mother-in-law, brother-in-law, and sister-in-law, were charged after an investigation. The other accused persons, however, were discharged by order dated 12.08.2008, and a charge was laid against the appellant herein for an offense punishable under Section 302 of the IPC, to which he pleaded not guilty and demanded a trial. The above allegations were denied by the appellant and he pleaded that it was falsely implicated in as much as the deceased, Pooja Rani, was under a misconception that he had illicit relations with Anjali (sister-in-law). On behalf of the appellant / accused, no witnesses were examined. The Judges, in this case, were Justice Ashok Bhushan and Justice R. Subhash Reddy. Thus, it was held in the case that “If we look at dying declaration, recorded by the Magistrate, it looks natural and no reason to disbelieve the same. In addition to the dying declaration, the statements of PW-5 and PW-6, who are mother and maternal uncle respectively of the deceased, corroborate the case of prosecution. It is clear from their statements that the deceased was tortured at the hands of the appellant and his family members. The Magistrate, in her deposition, has clearly stated that the relatives of deceased, Pooja Rani, were not there at the time of recording dying declaration of the deceased.” “it clearly establishes the guilt of the appellant, beyond reasonable doubt, as such, we find no merit in any of the contentions, advanced by the learned counsel for the appellant. Further, merely because the parents and other relatives of the deceased were present in the Hospital, when the statement of the deceased was recorded, it cannot be said that the said statement was a tutored one. It is quite natural that when such an incident happens, the parents and other relatives try to reach the hospital immediately. Merely because they were in the hospital, the same is no ground to disbelieve the dying declaration, recorded by the Magistrate, who was examined as PW-16.”

IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.261 OF 2021 Arising out of SLPNo.58018 Satpal ....Appellant(s State of Haryana vs JUDGMENT R.SUBHASH REDDY J This appeal has been filed by the accused in Session Case No.208 on the file of the learned Additional Sessions Judge Yamuna Nagar at Jagadhri aggrieved by the judgment and order dated 05th September 2016 passed by the High Court of Punjab and Haryana at Chandigarh whereby his conviction and order of sentence for offence under Section 302 of the Indian Penal Codewas confirmed On information received from J. P. Hospital Yamuna Nagar regarding admission of the deceased Pooja Rani on account of burn injuries a case was registered in FIR No. 112 on 20.03.2008 initially under Section 307 read with Section 34 of the Indian Penal Code and on death of Pooja Rani i.e. on 27.03.2008 Section 302 of the Indian Penal Code was added. On receipt of information Mr. Ishwar Singh A.S.I. of Police Station City Yamuna Nagar went to the J. P. Hospital along with other police officials and noticed that the deceased suffered 90 per cent injuries and at that stage she was declared fit to make statement. On the request of the police Ms. Kumud Gugnani Judicial Magistrate First Class Yamuna Nagar Jagadhri recorded the statement of deceased In the declaration recorded by the Judicial Magistrate First Class Yamuna Nagar Jagadhri the deceased has stated that the appellant accused has poured kerosene oil and set her ablaze. After investigation Charge Sheet was filed against the appellant accused and three others namely Kamlesh Mitter Sain and Anjali mother in law brother in law and sister in law respectively of the deceased However vide order dated 12.08.2008 the other accused persons were discharged and charge was framed against the appellant herein for offence punishable under Section 302 of the IPC to which he pleaded not guilty and claimed trial To prove the charge framed by the appellant herein the prosecution examined C. Narender Kumar as PW 1 C. Ram Kumar as PW 2 Jai Pal ASI as PW 3 EHC Prem Singh as PW 4 Varsha Rani as PW 5 Kashmiri Lal as PW 6 Pyara Singh Inspector as PW 7 Jai Kishan ASI as PW 8 Dr. Manisha Singh as PW 9 EHC Satwinder Singh as PW 10 Raj Kumar SI as PW 11 Lal Singh ASI as PW 12 Dr. Amit Goel as PW 13 Balraj Singh ASI as PW 14 Ishwar Singh ASI as PW 15 and Kumud Gugnani as When the statement of the appellant under Section 313 of the Code of Criminal Procedure was recorded the appellant denied the allegations levelled against him and pleaded that he was falsely implicated inasmuch as the deceased Pooja Rani was under a misconception that he had illicit relations with Anjali sister in law). On behalf of the appellant accused no witnesses were examined. The Trial Court by appreciating oral and documentary evidence on record by judgment and order dated 03.11.2009 convicted the appellant for offence punishable under Section 302 of the IPC and sentenced him to undergo rigorous imprisonment for life and to pay fine of Rs.10 000 with a default clause to undergo further rigorous imprisonment of two years Aggrieved by the conviction recorded and sentence imposed by the learned Additional Sessions Judge Yamuna Nagar Jagadhri the appellant herein preferred Criminal Appeal No. D 147 DB of 2010 before the High Court of Punjab and Haryana at Chandigarh. The High Court vide impugned judgment and order dated 05th September 2016 dismissed the appeal by confirming the conviction recorded and sentence imposed on the We have heard Mrs. Nanita Sharma learned counsel appearing for the appellant and Mr. Deepak Thukral learned Dy. A.G. appearing for the respondent State 10. Learned counsel for the appellant has contended that though the evidence on record led by the prosecution is not sufficient to prove the guilt of the accused the Trial Court has erroneously convicted the appellant for offence under Section 302 of the IPC and the same was confirmed by the High Court without considering various grounds raised on behalf of the appellant. It is further contended by the learned counsel that the conviction is mainly based on the dying declaration recorded by the Magistrate who was examined as PW 16. It is submitted that the dying declaration was tutored one and the same was made at the instance of family members of the deceased who were there with the deceased in hospital at the relevant time. It is submitted that in fact when the deceased made attempt to commit suicide the appellant has tried his best to extinguish the fire. Lastly he has submitted that the conviction recorded by the Trial Court as confirmed by the High Court is fit to be set aside by this Court. 11. On the other hand the learned Dy. A.G. appearing for the State has contended that the prosecution has proved the guilt of the accused for offence under Section 302 of the IPC beyond reasonable doubt. It is submitted that immediately on receipt of information Mr. Ishwar Singh ASI went to the hospital along with other police officials and found that the deceased has suffered 90 per cent injuries but she was in a fit condition to make statement. It is submitted that on request Ms. Kumud Gugnani the then Judicial Magistrate First Class Yamuna Nagar Jagadhri recorded the statement of deceased Pooja Rani under Exhibit ‘Ex PL’ wherein she stated that she was married to the appellant three years prior to the incident and that the appellant was under the influence of his brother’s wife and used to act on her instigation. In the statement recorded the deceased clearly stated that the appellant has poured kerosene oil on her and set her ablaze. It is submitted that merely because her family members have reached the hospital on coming to know of the burn injuries suffered by the deceased it cannot be said that the declaration made by the deceased before the Magistrate was a tutored one. It is submitted that at the time of recording of statement of deceased all the family members were sent out and the statement was recorded as deposed by the deceased. It is submitted that if the entire evidence is considered it clearly proves the case of the prosecution for offence under Section 302 of the IPC. It is submitted that the evidence on record is properly appreciated by the Trial Court as well as the High Court and in view of the concurrent findings recorded by both the Courts below no case is made out to interfere with the same 12. Having heard learned counsels on both sides we have perused the impugned judgment judgment of the Trial Court and other material evidence placed on 13. In this case it is to be noticed that at first instance on coming to know that the deceased Pooja Rani was admitted to hospital with the burn injuries as informed by the police the ASI went to the hospital along with other police officials. When it was noticed that the deceased has suffered 90 per cent injuries and was in a fit condition to make a declaration he sent a request to the concerned Magistrate upon which the Judicial Magistrate First Class Yamuna Nagar Jagadhri recorded the statement of the deceased Pooja Rani which was exhibited as Ex PL. In her dying declaration she has clearly stated that the appellant has poured Kerosene Oil on her and set her ablaze Though the family members of the appellant were also chargesheeted they were subsequently discharged vide Order dated 12.08.2008. On information given to the parents of the deceased they have come to hospital The deceased Pooja Rani was admitted in the hospital on 20.03.2008 and ultimately succumbed to injuries on 27.03.2008. It is also clear from the material evidence placed before this Court that though the family members of the deceased were in the hospital they were sent out when the dying declaration was recorded by the Magistrate who was also examined on behalf of the prosecution as PW 16 14. If we look at dying declaration recorded by the Magistrate it looks natural and no reason to disbelieve the same. In addition to the dying declaration the statements of PW 5 and PW 6 who are mother and maternal uncle respectively of the deceased corroborate the case of prosecution. It is clear from their statements that the deceased was tortured at the hands of the appellant and his family members. The Magistrate in her deposition has clearly stated that the relatives of deceased Pooja Rani were not there at the time of recording dying declaration of the 15. Further it is also relevant to notice here though the appellant has stated in his statement recorded under Section 313 of Cr.P.C. that many persons from the neighbourhood came to the house of the appellant at the time of incident no one was examined on his behalf. 16. If the dying declaration recorded by PW 16 is considered along with the depositions of PW 5 PW 6 and other witnesses who were examined on behalf of the prosecution it clearly establishes the guilt of the appellant beyond reasonable doubt as such we find no merit in any of the contentions advanced by the learned counsel for the appellant. Further merely because the parents and other relatives of the deceased were present in the Hospital when the statement of the deceased was recorded it cannot be said that the said statement was a tutored one. It is quite natural that when such an incident happens the parents and other relatives try to reach the hospital immediately. Merely because they were in the hospital the same is no ground to disbelieve the dying declaration recorded by the Magistrate who was examined as PW 16 17. For the above stated reasons and the reasons recorded by the High Court we are of the view that there is no error committed in the impugned judgment and order so as to interfere with the same in this Appeal. This Criminal Appeal is devoid of merits and the same is accordingly dismissed (ASHOK BHUSHAN (R. SUBHASH REDDY ..........................J NEW DELHI March 03 2021

The accused would certainly be entitled to the benefits of fair doubt if the testimony provided by the accused is of such a qualitative nature: Tripura High Court

If the evidence adduced by the accused is of such quality and such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of reasonable doubt. For that purpose, it would be a sound proposition that in such circumstances, the burden on the accused is rather heavy. The judgement was passed by the High Court of Tripura in the case of Mubarak Sarkar v. The State of Tripura [Crl. A(J). No. 03 of 2019] by Single Bench consisting of Hon’ble Justice Arindam Lodh. This appeal is filed against the judgment and order of conviction and sentence, passed by the learned Sessions court, whereby and whereunder, the appellant has been convicted and sentenced to suffer Rigorous Imprisonment for life along with a fine of Rs.10,000/ for the offence committed under Section-302 of IPC and further to suffer Rigorous Imprisonment for 5 years for the offence committed under Section-455 of IPC along with fine of Rs.5,000/ with default stipulations. Learned counsel for the appellant contended that there is no cogent evidence about the appellant’s involvement in the crime in question. The reliability of evidence let in by the prosecution has also been assailed in this appeal apart from other contentions concerning the surrounding facts, especially the evidence as elicited from the defence witnesses. According to counsel, apparent contradictions are being one is hit by another one. The learned counsel further heavily relied upon the defence witnesses where they have stated that the accused-appellant being a garbage cleaner working as DRW under Amarpur Nagar Panchayet, on the date and time of the incident was all along with other garbage cleaners and thus, had taken the plea of alibi. Learned counsel for the respondent has strongly relied upon the findings returned by the learned Sessions Judge in convicting the appellant. He submitted that the prosecution had been able to prove the case beyond a reasonable doubt. He further drew our attention to the two dying declarations, tried to persuade this Court that the bone of contention of the deceased is consistent in both the dying declarations that it was none but the appellant who set her ablaze. Relying upon the evidence of the prosecution witnesses, “the learned counsel quite candidly submitted that immediately after the incident the victim disclosed that it was the appellant who set her fire on her person pouring kerosene oil by lighting a matchstick.” While referring to this court judgment in the case of Suman Nama vs. the State of Tripura, wherein it was held that “When the presence of the accused at the scene of occurrence is established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counternarrative to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such quality and such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of reasonable doubt.”

HIGH COURT OF TRIPURA Crl. A(J). No. 019 Mubarak Sarkar S o: Late Munaf Miah Sarkar of Samatal Palli Amarpur P.S. Birganj District: Gomati Tripura. V E R S U S The State of Tripura represented by the Secretary Home Department Government of Tripura. ….. Respondent. HON’BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON’BLE MR. JUSTICE ARINDAM LODH Mr. Raju Datta Advocate. Mr. S. Debnath Addl. P.P. 17.03.2021 : : : For Appellant(s) For Respondent(s) Date of hearing Date of delivery of judgment and order : Whether fit for reporting : Arindam Lodh J] JUDGMENT & ORDER This appeal is directed against the judgment and order of conviction and sentence dated 04.12.2018 passed by the learned Addl. Sessions Judge Gomati Judicial District Udaipur in case No. S.T. 08(GT A) of 2016 whereby and whereunder the appellant has been convicted and sentenced to suffer Rigorous Imprisonmentfor life along with fine of Rs.10 000 for the offence committed under Section 302 of IPC and further to suffer RI for 5 years for the offence committed under Section 455 of IPC along with fine of Rs.5 000 with default Briefly stated one Habil Miah lodged a written complaint to the Officer in charge of Birganj Police Station inter alia stating that on 31.07.2015 at about 9.00 am when Hasina Begam was alone and watching TV suddenly Mubarak Sarkar the accused appellant herein came out below the cot and gagged her mouth with his hands and put kerosene oil on her person setting her ablaze. She was almost completely burnt. Hearing hue and cry her sister Dilwara Begam with her husband Khalil Miah had rushed to the spot. They took the victim to Amarpur Hospital wherefrom she was referred to Gomati Hospital and on 31.07.2015 at about 4.30 pm she was again referred to GBP Hospital. The victim was struggling with her life. The accused set Hasina Begam on fire with the intention to kill her. Pursuant to this complaint FIR No. 054 of 2015 was registered under Sections 455 326 307 of IPC. Being endorsed Sub inspector Bimalendu Saha started investigation. However on 04.08.2015 the victim succumbed to her injuries and the Investigating Officermade a prayer for adding Section 302 of IPC which was allowed. Two dying declarations were recorded by two doctors during the treatment of the victim firstly on 31.07.2015 at about 2.30 pm at District Hospital Gomati by the Medical Officer Dr. Umakanta Acharjeeand secondly on the same day at about 8.05 pm at AGMC & GBP Hospital by the Deputy Collector and Magistrate Agartala namely Takshiray Debbarma in presence of Dr. Goutam Debbarma who certified that the victim was mentally fit to give statements. After completion of investigation charge sheet was submitted against the accused appellant under Sections 455 302 of IPC. The case was committed to the Court of Learned Sessions Judge Udaipur Gomati District and the same was transferred to the Court of Learned Addl. Sessions Judge to conduct the trial. On receipt of the record charges were framed against the accused appellant under Sections 455 302 of IPC and the contents were read over to which he pleaded not guilty and claimed to be tried. To substantiate the charges prosecution had examined as many as 22 numbers of witnesses and at the closer of recording evidences by the prosecution side the accused appellant was examined under Section 313 of Cr. P.C. and when he was being noticed about all the incriminating evidences and mitigating circumstances as surfaced from the evidence and materials on record he denied all the allegations leveled against him as false. The accused appellant also adduced 9(nine) witnesses in support of his defence case. Arguments advanced by the learned counsel appearing for the parties were heard and the learned Addl. Sessions Judge after considering the prosecution and defence evidences returned a finding of guilt against the accused and convicted & sentenced him as afore stated. This judgment and conviction has been assailed by the convict appellant by way of presenting the instant appeal before us. We have heard Mr. Raju Datta learned counsel appearing for the accused appellant. Also heard Mr. S. Debnath learned Addl. P.P. appearing for the State respondent. Mr. Datta learned counsel appearing on behalf of the accused appellant would contend that there is no cogent evidence about appellant’s involvement in the crime in question. The reliability of evidence let in by the prosecution has also been assailed in this appeal apart from other contentions concerning the surrounding facts especially the evidences as elicited from the defence witnesses. Mr. Datta finds fault in the two dying declarations recorded by two doctors. According to him there are apparent contradictions being one is hit by another one. Mr. Datta learned counsel has heavily relied upon the defence witnesses where they have stated that the accused appellant being a garbage cleaner working as DRW under Amarpur Nagar Panchayet on the date and time of the incident was all along with other garbage cleaners and thus had taken the plea of alibi. On the other hand Mr. S. Debnath learned Addl. P.P. appearing for the State respondent has strongly relied upon the findings returned by the learned Addl. Sessions Judge in convicting the accused appellant. He submitted that the prosecution had been able to prove the case beyond reasonable doubt. Mr. Debnath learned Addl. P.P. drawing our attention to the two dying declarationstried to persuade this Court that the bone of contention of the deceased is consistent in both the dying declarations that it was none but the accused appellantwho set her ablaze. Relying upon the evidence of the prosecution witnesses the learned Addl. P.P. quite candidly submitted that immediately after the incident the victim disclosed that it was the accused appellant who set her fire on her person pouring kerosene oil by lighting a matchstick. Having heard the learned counsel appearing for the parties we have made a thorough survey of the evidence and materials on record as surfaced from the prosecution as well as the defence witnesses. We have also kept in mind the rival submissions of the learned counsel appearing on behalf of the accused appellant as well as the State respondent. At the outset we should mention that as per prayer made by the accused appellant this Court allowed the accused to bring the Attendance Register maintained by the Amarpur Municipal Council and this Attendance Register has been brought on record by DW Anjoy Ghosh and the said Attendance Register was marked as Exbt.A wherein signature of the accused appellant was identified and marked as Exbt. A 1. Now coming to the evidences led by the prosecution witnesses PW 1 Habil Miah deposed that the deceased Hasina Begam was his sister in law who died out of burn injuries. Mubarak Sarkar the accused appellant set her on fire. On the fateful day of the incident he went to the house of his father in law when he received information about the incident from the neighbours of Hasina Begam. On the following morning he went to Agartala GBP hospital where Hasina Begam told him that she had applied for a loan and Mubarak Sarkar stood as surety and for that purpose he charged Rs. 20 000 from her. Later on she asked Mubarak Sarkar to refund the said amount which he denied. On that issue a dispute arose between the deceased and the accused appellant. She further told that on the day of incident at about 12.00 hours she went inside her room started watching TV lying on the cot before that the accused appellant hide himself below the cot and suddenly he came out and started scuffling with her. He tied her to the cot by means of saree and thereafter he doused kerosene oil upon her and set her on fire by lighting a matchstick. PW 1 further stated that after his return from GBP hospital Agartala he lodged a written complaint. He confirmed the said complaint and his signature thereon respectively. He further deposed that Hasina Begam succumbed to her injuries on the third day of the incident. She had two children who were at school at the relevant point of time. During his cross examination the defence had shown his statements made in the written complaint where he stated that on getting the information he went to the house of his father in law and that he was informed by the local residents that Mubarak Sarkar had set Hasina Begam on fire was found absent. Likewise some statements which he made in his chief examination were not found in the FIR viz. that his visit to GBP hospital and the deceased Hasina Begam told him that she applied for a loan and Mubarak Sarkar demanded Rs. 20 000 for that purpose and that Mubarak Sarkar was asked to return the said amount and that while watching TV there was scuffling with the accused appellant when the deceased was tied with the cot and thereafter doused kerosene oil. PW 2 Dilwara Begum is the sister of Hasina Begum the deceased. She deposed that at about 1200 hours on that fateful day she went to the house of Hasina Begum to take bath. Suddenly she heard cries of her sister shouting “bachau bachau” being a neighbour of Hasina Begum had rushed to the spot and saw Hasina with burn injuries. She was taken to hospital by some persons in a vehicle. On the following day police came and seized the wearing apparels of the victim by preparing seizure list. She put her signature in the said seizure list marked as and the wearing apparels on being identified and marked as deposed that on the day of incident at about 12 12.30 pm he along with his wife were taking bath at water tank situated adjacent to the house of Hasina Bagum. They heard a cry about fire incident. They rushed to the spot and found Hasina Begum running engulfed with fire in her courtyard. He immediately poured water on her through the bucket which he was having for bathing purpose. Thereafter many other persons reached there. PW 13 further deposed that when he along with other persons were taking her to the vehicle for shifting her to the hospital at that time on his enquiry as to how the incident had happened Hasina told that Mubarak Sarkar had set her on fire. In his cross examination he stated that he was not interrogated by the I.O. However he denied all the suggestions put forth by the defence that his statements in chief examination were fabricated. PW 14 Md. Abdul Hossain being the driver of one Maruti Alto being No. 639 has deposed that on 31.07.2015 he returned to his home by his vehicle to take lunch at about 12 12.30 pm. At that time he heard hue and cry in the house of Harun Miah and went to the spot and found that few persons were pouring water over Hasina Begum who was lying with burn injuries. People was asking him to bring his vehicle to take Hasina to the hospital and accordingly he brought his vehicle immediately and took Hasina Begum to Amarpur Hospital but she was referred to Tepania District Hospital Udaipur and he himself took her to the Udaipur hospital wherefrom she was again referred to GBP Hospital Agartala and he himself took Hasina to GBP Hospital Agartala. PW 14 further deposed that while he was shifting Hasina to Amarpur hospital he picked up her husband Harun Miah from Kathalbagan. At that time in the vehicle one sister of Hasina was also present. En route to Amarpur hospital he heard Harun Miah asking to Hasina about the incident when she told that Maburak Sarkar had set her on fire. PW 15 Shri Takshiray Debbarma was posted as DCM Sadar at Agartala on 31.07.2015. He deposed that on that day being directed by Sub Divisional Magistrate Sadar he went to the AGMC & GBP Hospital Agartala and recorded the dying declaration of a lady who was suffered from burn injuries. PW 15 further deposed that one doctor of the hospital namely Dr. Goutam Debbarma stated to him that the victim was in a fit state of mind to make declaration. Thereafter he recorded her statement and read over to her. She put her thumb impression and he also put his signature at the foot of the recorded statement. PW 15 further stated that the name of the victim was Hasina Begum. He identified his signature on the said declaration In his cross examination PW 15 stated that after recording the dying declaration he had taken it with him. He did not inform the matter to the police. On the following day he submitted the recorded dying declaration in the SDM Office Sadar. After recording the dying declaration he did not inform the SDM Sadar about the fact of recording deposition. He further stated that at the time of recording dying declaration he had put questions to the victim and recorded her answers to those questions. He had put many questions to her but recorded the relevant answers only. The victim answered all questions asked to her. He denied the suggestion put forth by the defence that he put suggestive questions to the victim and recorded the answers as sought for by him. He further denied that at the time of recording dying declaration the victim Hasina Begum was not in a fit state of mind. In his re examination PW 15 deposed that he recorded the dying declaration of the deceased on his own handwriting. He identified the said dying declaration recorded by him which on identification by the witnesses was marked asas a whole. He deposed that he endorsed the case for investigation to SI Sri Bimalendu Saha. PW 18 Dr. Umakanta Acharjee deposed that on 31.07.2015 he was posted as Medical Officer at District Hospital of Gomati at Tepania Udaipur. On that day at about 2.30 pm he received all information from one staff nurse of that hospital for the purpose of recording dying declaration of one patient namely Hasina Begum. Accordingly he went to the Female Surgical Ward where the patient Hasina Begum was admitted. He found the patient with 90% burn injuries. For the purpose of ascertaining whether she was alert well oriented to time place and person he asked few questions to her as “1. Where are you at present She replied that she was in Hospital. 2. Whether it was day or night She replied it was day time. 3. What was the time She replied about 2.00 to 2.30 pm.” After being satisfied he recorded the statement of the victim where she disclosed that when she entered into the room the accused appellant caught hold of her pressing her mouth with cloth and set her on fire after pouring kerosene oil on her body. He further deposed that he obtained the left thumb impression of the patient at the foot of the printed form for recording dying declaration which was filled up by him. He identified his signature on the said dying declaration and the signature thereon(Exbt.3 2). He also identified the LTI of the victim which was marked asas a whole. PW 20 Smti. Padmini Jamatia who was a staff nurse of Gomati District Hospital Tepania was on duty on 31.07.2015. She deposed that on that day Dr. Umakanta Acharjee of that hospital recorded the statement of Hasina Begum in her presence. She further deposed that Hasina Begum stated that on the day of incident Mubarak Sarkar came to her house pressed her mouth with cloth and set her on fire after pouring kerosene oil on her. She further deposed that Hasina Begum stated that there was an issue regarding payment of Rs. 20 000 to her. PW 21 Dr. Jayanta Sankar Chakraborty was posted as Medical Officer in the department of Forensic Medicine and Toxicology. On 03.08.2015 when he conducted postmortem examination over the dead body of Hasina Begum. He deposed that about 97% of the body surface area affected by that burn. PW 22 is S.I. Bimalendu Saha who investigated the case. In the instant case the accused appellant had adduced defence witnesses. The accused appellant himself adduced as DW 1. He deposed that on 31.07.2015 he went to his office at Nagar Panchayet Amarpur which runs from 7 am to 2 pm. He along with many other persons namely Ramesh Das Titu Malik Nikhil Debnath Usha Ranjan Das Soboja Begum Monora Begum and Sukanta Das went to different parts of the Amarpur town to collect garbage. Finishing their job at around 2 pm they returned to the Office and put their respective signatures in the Attendance Register. Thereafter to receive a fresh cheque book he went to Tripura State Cooperative Bank Amarpur Branch and there he received the same putting his signature in the relevant register. At around 3.30 pm he returned to his home. When he was taking bath and getting ready to take his lunch he was informed by his wife that Hasina Bibi committed suicide. In his cross examination he stated that he had no information of suicide and also that Hasina Begum was hospitalized. He admitted that Hasina Begum was his adjacent neighbour. He further stated that he was falsely implicated in this case. DW 2 Ramesh Das who deposed that on 31.07.2021 he was all along with the accused appellant and other garbage cleaners who were working under Amarpur Nagar Panchayet. DW 3 Sri Nikhil Debnath also deposed in the same tune as that of DW 2. DWs.4 5 6 7 and 8 deposed in the same tune that the accused appellant was all along with them while they were discharging their duties within the geographical area of the Amarpur Nagar Panchayet as garbage cleaners and after completing their jobs they all put their signatures in the Attendance Register maintained by Nagar Panchayet. DW 9 Shri Tarun Ch. Saha appeared before the Court on behalf of the Executive Officer Amarpur Nagar Panchayet who was authorized to depose on behalf of Shri Suresh Jamatia. He deposed that the attendance register reflects that Ramesh Das Titu Mali Nikhil Debnath Monour Begam and Saboja Begum were present in the office on 31.07.2015 and on 01.08.2015 and have put their respective signatures in the register. He further deposed that “it is fact that the garbage cleaner of our establishment perform their cleaning works inside the office complex as well as in other parts of Nagar Panchayet area. But the particular place concerned does not find reflection in any paper.” He stated in his cross examination that he had no personal information with regard to the work done by different garbage cleaners on 31.07.2015. He further stated in his cross examination that Amarpur Nagar Panchayet consists of 11 wards and it is spread over a geographical area of about 7 to 8 km. Being directed by this Court Sri. Anjoy Gohsh appeared before the witness box along with the Attendance Register of Amarpur Nagar Panchayet as DW. During his evidence he produced the Attendance Register certified by the Executive Officer of Amarpur Nagar Panchayet dated 01.01.2015. He deposed that all the garbage cleaners put their signatures in front of him and the signatures were known to him. He identified the signatures of Mubarak Sarkar which was marked as the Attendance Register marked as In his cross examination he stated that the duty of Mubarak Sarkar was not confined to the office but in the field too and house of Mubarak Sarkar is about one and half km from the Nagar Panchayet office which requires 20 minute walk from the Amarpur Nagar Panchayet office. The said DW could not say at what location Mubarak Sarkar had performed his duties on 31.07.2015. He further stated that at about 4.30 4.45 pm he heard about the incident of the burning of Hasina Begum. DW Anjoy Ghosh further stated in his cross examination that “it is a fact that before or after putting signature if a person leaves the office and does something else beyond his allotted duty outside the complex of the office it is not possible for us to say that”. He further stated that he “he could not say whether Mubarak Sarkar committed the offence before or after putting his signature in the attendance register.” To appreciate the entire evidence brought on record at the very threshold we would like to peruse the two dying declarations as made by the victim. On close reading of the two dying declarations we find commonality in the material part of the declarations that Mubarak Sarkar had slept with her and set her ablaze by pouring kerosene oil kept in her room. In the first dying declaration recorded by Dr. Umakanta Acharjee at Tepania District Hospital Udaipur he declared that on the date of incident in the morning the accused appellant had kept himself concealed under the cot and at around 12 O’clock at noon he entered into the room and set her on fire by way of pouring kerosene oil by closing her mouth with cloth. In the second dying declaration recorded by Dr. Goutam Debbarma it transpires that the victim declared that in absence of her husband the accused appellant wanted to develop physical relationship with her and there was an altercation between them and thereafter suddenly he poured kerosene oil kept in her room in a drum and set her on fire and lit her using matchstick. We found that Dr. Umakanta Acharjee in his evidence clearly stated that he found the victim was mentally fit and oriented to make declaration. PWs 6 and 20 the two staff nurse also supported the statement of the victim as well as Dr. Umakanta Acharjee. They identified the left thumb impression of Hasina Begum and also the signature in the prescribed format as witness in the second dying declaration. Dr. Gautam Debbarma declared the victim is mentally fit to give statement. Thereafter the DCM Sri Takshiray Debbarma recorded the statement in his own handwriting and certified the same that he recorded the statement of the victim on 31.07.2015 at 8.05pm at the female ward No.1 had put questions to ascertain the mental alertness and orientation of the victim Hasina Begum. We find no infirmity in the material part of the dying declaration that it was none but Mubarak Sarkar who set ablazed the victim Hasina Begum by pouring kerosene oil and is admissible in evidence under Section 32(1) of the Evidence Act. The two dying declarations albeit spoke about two different facts and all the facts declared by the victim are found to be related to the cause of death and such statements cannot in any way be termed as contradictory. Apart from the said two dying declarations we found the statements of PW 2 the sister of the victim who rushed to the spot and poured water on her and when she made inquiry as to how the incident had happened the victim told that out of a dispute of returning Rs.20 000 Mubarak Sarkar set her on fire by pouring kerosene oil. PW 2 in her deposition mentioned the name of Amena Bibi who arrived at the spot immediately after the occurrence. The said Amena Bibi and Harun Miah supported the statement of PW 2 that on being inquired the victim told that Mubarak Sarkar set her on fire by pouring kerosene oil. Similarly PWs 3 4 5 6 and 13 corroborated the versions of the victim made before Amena Bibi and Harun Miah reported in8 SCC 779 the Apex Court re iterates the law relating to dying declarationthus: “20. A Dying declaration is relevant evidence as declared by Section 32 of the Indian Evidence Act 1872. A distinction exists however between English Law and Indian Law in regard to dying declaration. We may in this regard note the declaration of the law contained in Kishan Lal v. State of Rajasthan1(SCC p.316 para 18): “18. Now we proceed to examine the principle of evaluation of any dying declaration. There is a distinction between the evaluation of a dying declaration under the English law and that under the Indian law. Under the English law credence and the relevancy of a dying declaration is only when a person making such a statement is in a hopeless condition and expecting an imminent death. So under the English law for its admissibility the declarant should have been in actual danger of death at the time when they are made and that he should have had a full apprehension of this danger and the death should have ensued. Under the Indian law the dying declaration is relevant whether the person who makes it was or was not under expectation of death at the time of declaration. Dying declaration is admissible not only in the case of homicide but also in civil suits. Under the English law the admissibility rests on the principle that a sense of impending death produces in a man s mind the same feeling as that of a conscientious and virtuous man under oath. The general principle on which this species of evidence are admitted is that they are declarations made in extremity when the party is at the point of death and when every hope of this world is gone when every motive to falsehood is silenced and the mind is induced by the most powerful considerations to speak only the truth. If evidence in a case reveals that the declarant has reached this state while making a declaration then within the sphere of the Indian law while testing the credibility of such dying declaration weightage can be given. Of course depending on other relevant facts and circumstances of the case.” Emphasis supplied) 21. But when a declaration is made either oral or in writing by a person whose death is imminent the principle attributed to Mathew Arnold that “truth sits upon the lips of a dying man” and no man will go to meet his maker with falsehood in his mouth will come into play. The principles relating to dying declaration are no longer res integra and it would be apposite that we refer to the decision of this Court in Paniben v. State of Gujarat3 wherein the concepts are summed up as followsThere is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration.(Munna Raja v. State of M. P.). ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it without corroboration. State of U.P. v. Ram Sagar Yadav1 SCC 552: 1985 SCC Cri) 127: AIR 1985 SC 416] Ramawati Devi v. State of Bihar1 SCC 211: 1983 SCC169 : AIR 1983 SC 164] iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make v. Public Prosecutor3 SCC 618: 1976 SCC473: AIR 1976 SC 1994] ). K. Ramachandra Reddy iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. 4 SCC 264 : 1974 SCC426] ) v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. 645: AIR 1982 SC 1021] vi) A dying declaration which suffers from infirmity cannot form the basis of conviction.2 SCC 654: 1981 SCC581]) vii) Merely because a dying declaration does not contain the details as to the occurrence it is not to be rejected. 364: AIR 1981 SC 617]) viii) Equally merely because it is a brief statement it is not be discarded. On the contrary the shortness of the statement itself guarantees truth. Surajdeo Oza v. State of Bihar[1980 Supp SCC 769 : 1979 SCC519 : AIR 1979 SC 1505] ) ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration the medical opinion cannot prevail.342: AIR 1988 SC 912]) x) Where the prosecution version differs from the version as given in the dying declaration the said declaration cannot be acted upon.No. 315] decided on 03.05.2019 stated thus: “Latin word “alibi” means elsewhere and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is basic law that in a criminal case in which the accused is alleged to have inflicted physical injury to another person the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily.” Explaining further “When presence of the accused at the scene of occurrence is established satisfactorily by the prosecution through reliable evidence normally the court would be slow to believe any counternarrative to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place the accused would no doubt be entitled to the benefit of reasonable doubt. For that purpose in such it would be a sound proposition that circumstances the burden on the accused is rather heavy. It follows therefore that strict proof is required for establishing the plea of alibi.” According to us the evidence in regard to involvement of accused appellant in the crime is so galore and overwhelming that it turns the accused’s plea of alibi a total lie. The prosecution witnesses have been able to substantiate the charges framed against the accused appellant beyond reasonable doubt that he committed murder of the deceased Hasina Begum by pouring kerosene oil. The scientific examiner has confirmed that the drum along with the liquid seized by the I.O. were a drum containing kerosene oil. So this circumstance also supports the prosecution case. On overall assessment of the evidence and materials on record there is no scope to record a different finding than that of the finding as returned by the learned Addl. Sessions Judge Gomati Judicial District Udaipur in convicting and sentencing the accused appellant as set forth in his judgment and order dated 04.12.2018 in connection with the case No. S.T. 08(GT A) of 2016 (T 1). In the result the appeal preferred by the convict appellant stands dismissed. The judgment and order passed by the learned trial Court are affirmed. The appellant is to suffer the remaining period of Send down the LCRs. JUDGE CHIEF JUSTICE

Any record of statement taken in police custody not to be considered as custody: 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

It is settled law that the Court cannot interfere in the disciplinary/inquiry proceedings at the interim stage.: Delhi High Court

When the Court is of the view that the writ petition is premature, it cannot interfere in the proceedings as upheld by the High Court of Delhi through the learned bench led by Justice Manmohan in the case of Satya Prakash Singh v. Central Reserve Police Force (Crpf) & Ors. (W.P. (C) 12632/2021 & C.M.No.39748/2021) The brief facts of the case are that the Present writ petition has been filed challenging the enquiry report dated 22nd September, 2021 and for conducting a fresh and fair enquiry against the Petitioner as also to provide medical treatment to the petitioner till he becomes fit to join duty. Petitioner also challenges the recovery made vide Departmental Letter dated 6th October, 2021. Petitioner further seeks directions to the Respondents to give salaries for the months of December 2020, January 2021, February 2021, and June, 2021 along with arrears of HRA. Learned counsel for the Petitioner states that the Petitioner, who is a constable CT/GD in the CRPF was undergoing treatment for Spondylolisthesis and was given rest till 24th December, 2020. He, however, states that the Petitioner received a letter dated 12th December, 2020, whereby he was ordered to join 11th BN Jharkhand immediately which the Petitioner did not follow since the treatment was still continuing. He further states that the Petitioner was not allowed to go to Delhi to get further treatment and the Respondents also did not release the Petitioner’s salary. He also contends that the respondents illegally initiated a false inquiry and also made a false and adverse report dated 22nd. A perusal of the paper book reveals that the Department/CRPF has levelled many serious allegations against the Petitioner. It is alleged that the Petitioner presented his health card, issued by CRPF, in a damaged state as the health card was broken into many pieces. It is further alleged that the Petitioner misled the office while getting himself treated at BMCC and Safdarjung Hospital, New Delhi, by tampering with the dates and documents. October, 2021 in which an order of recovery of Rs.7,15,887/- was issued against the Petitioner and the salary of December 2020, January 2021, February 2021 and June 2021 along with HRA has been adjusted in the said recovery on the ground that the petitioner was under medical treatment and had proceeded on rest and is therefore not liable for payment of salary. After the perusal of the facts and arguments, the Hon’ble Court held, “From the aforesaid facts, it is apparent that the Petitioner is a habitual offender and the present writ petition is not of such a nature that warrants this Court’s interference at the interim stage. This Court is also of the view that, at this stage, only an enquiry report has been furnished to the petitioner and the disciplinary authority is yet to take a view with regard to enquiry report. Even with regard to deduction of salaries, the petitioner will have sufficient opportunity to raise its grievances. Consequently, this Court is of the view that the present writ petition is premature. Accordingly, the present writ petition along with pending applications is dismissed.”

IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.12632 2021 & C.M.No.39748 2021 SATYA PRAKASH SINGH Through: Mr.Shiv Gaur with Mr.Ajay Pratap .....Petitioner CENTRAL RESERVE POLICE FORCE& ORS. Through: Mr.Rajesh Gogna CGSC. Date of Decision: 11th November 2021 HON BLE MR. JUSTICE MANMOHAN HON BLE MR. JUSTICE AMIT BANSAL JUDGMENT MANMOHAN Jwas given to DIG Establishment) Directorate General of Police CRPF New Delhi for getting his transfer dated 12 07 2018. information was given by the personnel for the drawing house allowance of New Delhi. 11 Battalion Wrong 11 Battalion Wrong letter No. P8 01 2016 Adju 70 dated 22 01 2017. According to the office order number P.8.04 2019 11 Estt.2 dated 19 09 20 of this office the punishment was given to stop the annual increment for two years without cumulative effect. letter was The warning provided under this office’s letter no. 8.17 2019 11 Estt 2 dated 13 02 20. From the aforesaid facts it is apparent that the Petitioner is a habitual offender and the present writ petition is not of such a nature that warrants this Court’s interference at the interim stage. This Court is also of the view that at this stage only an enquiry report has been furnished to the petitioner and the disciplinary authority is yet to take a view with regard to enquiry report. Even with regard to deduction of salaries the petitioner will have sufficient opportunity to raise its grievances. It is settled law that the Court cannot interfere in the disciplinary inquiry proceedings at the interim stage. 2 SCC 179 Para 09]. Consequently this Court is of the view that the present writ petition is premature. Accordingly the present writ petition along with pending applications is dismissed. MANMOHAN J AMIT BANSAL J NOVEMBER 11 2021 Digitally SignedBy:KRISHNA BHOJSigning Date:12.11.202121:08:59Signature Not Verified

An appeal U/S.38 of Delhi Rent Control Act is not maintainable against an order of dismissal passed under Order IX Rule 13 CPC: High Court of Delhi

The application of the petitioner, though titled as one filed under Order IX Rule 13 of the Code, was one U/S 25B(9) of the Act and therefore, in terms of Section(s) 25A and 25B of the Act, any order passed thereon shall not be appealable under S.38 of the Act. The only remedy for the petitioner would be under S.25B(8) of the Act to this Court. This was held in BATA INDIA LIMITED V.  SMT. SARLA SHARMA (SINCE DECEASED) THROUGH LRS AND ORS [CM (M) 558/2020] in the High Court of Delhi by a single bench consisting of JUSTICE NAVIN CHAWLA. Facts are that an Eviction Petition was filed by the respondent under S.14(1)(e) of the Act which was decided ex parte. Petitioner had filed an application under Order IX Rule 13 of the Code praying for setting aside of the eviction order passed ex parte but was dismissed on the ground of failure to comply with the conditions of deposit in terms of the prior order. The petitioner filed an appeal under S.38 of the Act before the learned Rent Control Tribunal against the order of dismissal of the application, maintainability of the same is the issue for consideration before the court. The court made reference to Section 37 of the Act and also referred to  Rule 23 of the Delhi Rent Control Rules, 1959, which provides that in deciding any question relating to the procedure not specifically provided by the Act and the said Rules, the Controller and the Rent Control Tribunal shall, as far as possible, be guided by the provisions contained in the Code. The court discussed the issue as to whether an appeal was maintainable against an order of the learned Rent Controller refusing to order eviction in a petition under Section 14(1)(e) the same was highlighted by the Supreme Court in the case of Vinod Kumar Chowdhry v. Smt Narain Devi Taneja, the following observations were made, “In the way of the above interpretation of sub-section (8) of Section 25-B, the provisions of sub-section (10) thereof do not pose a hurdle. All that sub-section (10) states is that the procedure for the disposal of an application for eviction covered by sub-section (1) shall be the same as the procedure for disposal of other applications by Controllers, except as provided in Chapter III- A. Sub-section (8) as interpreted by us governs an application covered by sub-section (1) of Section 25-B and expressly takes away the right of appeal or second appeal while providing the remedy of revision instead. As we have held the provisions of sub-section (8) to be exhaustive of the remedies available to a person aggrieved by an order passed by the Controller in applications triable under Chapter III-A, such applications fall outside the category of those which can be disposed of like other applications under sub-section (10) read with the provisions contained in other chapters of the Act.” The court also made reference to the judgment passed by the Supreme Court in the case of Central Bank of India v. Shri Gokal Chand, and made the following observations, “..though the language of Section 38 of the Act may seem to suggest that an appeal lies against all or any order of the learned Rent Controller, however, no appeal would lie against any interlocutory order which are merely procedural and do not affect the rights and liabilities of the parties.” Considering the facts of the case and keeping in mind the provisions of law applicable. The Court held that the eviction Petition to which the procedure prescribed under S.25B of the Act applies, an appeal under S.38 of the Act is not maintainable against an order dismissing an application under Order IX Rule 13 of the Code/S.25B(9) of the Act. The only remedy available to the aggrieved tenant is to file a petition U/S.25B(8) of the Act before the High Court. Thus dismissing the petition.

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 26.02.2021 Date of decision: 22.04.2021 CM(M) 558 2020 & CM APPL. 28639 2020 BATA INDIA LIMITED Petitioner Through: Mr.Sanjeev Sindhwani Sr.Adv. with Mr.T.K.Ganjoo Adv. SMT. SARLA SHARMATHROUGH LRS AND ORS Respondents Through: Mr.Sandeep Sethi Sr. Adv. with Mr.Asif Adv. for R 3 R 4 & R 5. Mr.Praveen Suri Adv. for R 1 R 2 R 6 R 7 & R 8. HON BLE MR. JUSTICE NAVIN CHAWLA This petition has been filed by the petitioner challenging the judgment dated 15.10.2020 passed by the learned Rent Control Tribunal West District Tis Hazari Courts New Delhi in the Appeal being RCT No. 36 of 2016 titled Bata India Ltd. v. Smt. Sarla Sharma & Ors. holding that an appeal under Section 38 of the Delhi Rent Control Act 1958 challenging an order of dismissal of an application under Order IX Rule 13 of the Code of Civil Procedure 1908 in an eviction petition to which Section 25B of the Act is applicable is not CM558 2020 Page 1 The brief background of the facts before adverting to the question of law raised with respect to the maintainability of the appeal is as under: An Eviction Petition being E. No. 1908 titled Smt. Sarla Sharma v. M s Bata India was filed by the respondent under Section 14(1)(e) of the Act. On 23.12.2009 an order of eviction was passed ex parte in the abovementioned Eviction Petition against the petitioner and in favour of the respondent. The petitioner filed an application under Order IX Rule 13 of the Code praying for setting aside of the eviction order passed ex After deliberating over the abovementioned application of the petitioner the learned Additional Rent Controller vide order dated 03.06.2011 passed the following direction: “From the perusal of the documents filed on record it is not clear that who was in the employment of the respondent applicant at the relevant period of service nor the said fact has been disclosed in the entire application that who was the store Manager or the competent person to receive the summons during that relevant period except the certificate issued by one Mr. AK. Dutta without having any seal wherein it has been mentioned that Mr. B. Kapoor and Mr. Brij Bhushan both salesmen were employed at the branch of the applicant in the suit premises employment or any other document showing their transfer posting with the respondent at the suit service filing of details of date of However CM558 2020 Page 2 therefore considering the allegations raised on behalf of the respondent applicant is being given liberty to lead evidence on the point of service but subject to deposit of the occupation charges at a rate of Rs. 25 000 per month in view of the judgment of Hon ble Supreme Court in S.L.P.no. 63107 titled as Mohammand Ahmed & Anr. Vs. Atma Ram Chauhan & Ors. reported in 179DLT 532 from the month of July 2010 i.e. after expiry of statutory period as provided U s. 14of D.R.C. Act upto the month of June 2011 within one month and subject to deposit of the further occupation charges at the said rate from the month of July 2011 on or before the 15th of each English Calender month during the pendency of the present case as the premises is situated in Chandni Chowk area and is consisting of more than about 800 sq. ft. as stated during the course of arguments. It is made clear that the amount so deposited will not be allowed to be withdrawn during the pendency of the present application and in case respondent fails to succeed said amount will be payable to the petitioner without prejudice to his rights and contention and if the applicant will succeed he will be entitled to withdraw the said amount. Application is disposed off accordingly. It is further made clear that if applicant fails to comply the condition imposed the application will be deemed to have been dismissed.” Emphasis supplied) By a subsequent order dated 04.02.2012 the learned Additional Rent Controller was pleased to direct the release of the amount deposited by the petitioner to the respondent subject to a condition that in case the petitioner succeeds the amount shall be returned by the respondent. Thereafter by an order dated 03.01.2013 passed by the learned Additional Rent Controller the order dated 03.06.2011 was CM558 2020 Page 3 further modified directing the petitioner to deposit the user and occupation charges once in three months before the 15th of the next month in which the charges for the last month become due. The application under Order IX Rule 13 of the Code after recording of evidence was set down for final arguments. At this stage the respondent filed an application for issuance of warrants of possession alleging therein that as the petitioner had failed to comply with the condition of deposit in terms of the order dated 03.06.2011 the application filed by the petitioner automatically stood dismissed in terms of the said order itself. The said application filed by the respondent was allowed by the learned Additional Rent Controller vide order dated 29.11.2013. It is important to mention here itself that the merit of this order is not in question in the present petition as only the question of law of the maintainability of an appeal against such order arises for consideration in the present petition. The petitioner thereafter filed an application seeking recall of the order dated 29.11.2013. The said application was also dismissed by the learned Additional Rent Controller vide order dated 10.03.2014 passed in Ex. No. 34 of 2010. The merit of this order is also not in question before this Court in the present petition. Subsequently the petitioner filed an Appeal under Section 38 of the Act being RCT No. 36 of 2016 challenging the orders dated 29.11.2013 and 10.03.2014 before the learned Rent Control Tribunal. CM558 2020 Page 4 Vide order dated 16.04.2014 the learned Rent Control Tribunal was pleased to stay the operation of the eviction order dated 23.12.2009. maintainable. By the Impugned Order however the learned Rent Control Tribunal has dismissed the appeal holding the same to be not At the outset it is noted that the learned Rent Control Tribunal has dismissed the appeal filed by the petitioner only on the question of its maintainability and has expressly stated that it has not considered the merits of the submissions made by the parties on the factual dispute between them. In the present petition as well the learned counsels for the parties have addressed their arguments before this Court only on the issue of maintainability of the appeal and have not advanced any submissions on the merits of the factual disputes between the parties or on the merit of the orders passed by the learned Additional Rent Controller. This Court shall therefore confine its discussion only on the maintainability of the appeal before the learned Rent Control Tribunal without making any comment on the merit of the factual dispute between the parties. The question of law which arises for consideration before this Court is as follows: Whether an appeal under Section 38 of the Act maintainable against an order dismissing an application under Order IX Rule 13 of the Code in an Eviction Petition to which the procedure prescribed in Section 25B of the Act CM558 2020 Page 5 applies OR Whether the only remedy available to an aggrieved party is in the form of a petition under Sub section 8) of Section 25B of the Act before this Court To answer the above question of law the relevant provisions of the Code and the Act need consideration. Chapter IIIA of the Act contains provisions for the summary trial of the applications seeking eviction of the tenant on specified grounds. Section 25A of the Act gives primacy to the said procedure over anything inconsistent with the other provisions of the Act or any other law for the time being in force. Section 25B of the Act deals with the procedure for the disposal of the eviction petition filed inter alia on the ground specified in clauseof the proviso to Section 14(1) or under Section(s) 14A 14B 14C or 14D of the Act. Section(s) 25A and 25B of the Act are reproduced hereinunder: “25A. Provisions of this Chapter to have overriding effect. The provisions of this Chapter or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained elsewhere in this Act or in any other law for the time being in force. 25B. Special procedure for the disposal of applications for eviction on the ground of bona fide requirement. Every application by a landlord for the recovery of possession of any premises on the ground specified in clause of the proviso to sub section of section 14 or under section 14A or under section 14B or under section 14C or under section 14D shall be dealt CM558 2020 Page 6 with in accordance with the procedure specified in this section. 2) The Controller shall issue summons in relation to every application referred to in sub section in the form specified in the Third 3)The Controller shall in addition to and simultaneously with the issue of summons for service on the tenant also direct the summons to be served by registered post acknowledgement tenant or his agent due addressed empowered to accept the service at the place where the tenant or his agent actually and voluntarily resides or carries on business or personally works for gain and may if the circumstances of the case so require also direct the publication of the summons in a newspaper circulating in the locality in which the tenant is last known to have resided or carried on business or personally worked for gain. the Controller or b) When an acknowledgement purporting to be signed by the tenant or his agent is received the registered article containing the summons is received back with an endorsement purporting to have been made by a postal employee to the effect that the tenant or his agent had refused registered article the Controller may declare that there has been a valid service of summons. take delivery of 4) The tenant on whom the summons is duly served in the form specified in the Third Schedule shall not contest the prayer for eviction from the premises unless he files an affidavit stating the grounds on which he seeks to contest the application for eviction and obtains leave from the Controller as hereinafter provided and in default of his appearance in pursuance of the summons or his obtaining such statement made by the landlord in the application for eviction shall be deemed to be admitted by the leave CM558 2020 Page 7 tenant and the applicant shall be entitled to an order for eviction on the ground aforesaid. 5) The Controller shall give to the tenant leave to contest the application if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the premises on the ground specified in clause of the proviso to sub section of section 14 or under section 6) Where leave is granted to the tenant to the Controller shall commence the hearing of the application as early as practicable. the application 7) Notwithstanding anything contained in sub sectionof section 37 the Controller shall while holding an inquiry in a proceeding to which this Chapter applies follow the practice and procedure of a Court of Small Causes including the recording of evidence. 8) No appeal or second appeal shall lie against an order for the recovery of possession of any premises made by accordance with the procedure specified in this the Controller Provided that the High Court may for the purpose of satisfying itself that an order made by the Controller under this section is according to law call for the records of the case and pass such order in respect thereto as it thinks fit. 9) Where no application has been made to the High Court on revision the Controller may exercise the powers of review in accordance with the provisions of Order XLVII of the First Schedule to the Code of Civil Procedure 1908Save as otherwise provided in this Chapter the procedure for the disposal of an application for eviction on the ground specified in clause of the proviso to sub section of CM558 2020 Page 8 section 14 or under section 14A shall be the same as the procedure for the disposal of applications by Controllers.” Sub sectionof Section 25B of the Act provides for service of summons of the Eviction Petition on the tenant. Sub section of Section 25B of the Act sets in motion a chain of requirements on the tenant on being duly served with the summons of the petition. The said tenant has to within the time prescribed enter appearance and file an affidavit stating the grounds on which he seeks to contest the Eviction Petition and obtain leave of the Controller to defend the Eviction Petition on merit. Default of appearance of the tenant pursuant to the due delivery of the summons or his her failure to obtain leave to defend results in the statements made by the landlord in the Eviction Petition to be deemed to be admitted by the tenant and the Eviction Petition shall be allowed. Therefore due service of summons of the Eviction Petition gains primacy. 10. A question arose as to whether the Controller is competent to condone the delay in appearance of the tenant and or his filing the affidavit stating the grounds on which he seeks to contest the application for eviction. The Supreme Court in Prithipal Singh v. Satpal Singh Dead) through LRs. 2 SCC 15 after examining the scheme of Section 25B of the Act held that Section 25B of the Act is a complete Code by which the entire procedure to be adopted for eviction of a tenant on the ground of bona fide requirement filed by the landlord in respect of a premises shall be followed. Rule 23 of the Delhi Rent Control Rules 1959 which provides for the Controller and the Rent Control Tribunal to CM558 2020 Page 9 be guided by the provisions of the Code of Civil Procedure 1908 shall have no application. The Court held that therefore the Rent Controller shall not have the power to entertain an application seeking condonation of delay of the tenant in entering his appearance or filing the affidavit seeking leave to contest the petition. 11. The above decision was considered by this Court in its judgment in Sonal Mansingh v. Beena Om Prakash 2011 SCC OnLine Del 3818 and it was held that where the tenant disputes the due service of summons upon him the Rent Controller would have the jurisdiction to entertain an application seeking recall of the ex parte order of eviction on this ground. 12. This Court again in Director Directorate of Education & Anr. v. Mohd. Shamim & Ors. 2019 SCC OnLine Del 11490 considered the above referred judgment of the Supreme Court in Prithipal Singhand held that this Court if it finds sufficient ground for non filing of the application seeking leave to defend within the time prescribed in exercise of its power under Sub sectionof Section 25B of the Act is entitled to set aside an order of eviction passed under Section 14(1)(e) or 14A or 14B or 14C or 14D of the Act and can remand the matter to the Rent Controller to consider the leave to defend application on merit. 13. From the above judgments it would be apparent that though the learned Rent Controller has no power to condone the delay of the tenant in entering appearance or filing an application seeking leave to defend it can still go into the question as to whether the tenant was at all served with the summons of the eviction petition. CM558 2020 Page 10 14. As noted hereinabove in Prithipal Singh the Supreme Court on examining the provisions of the Act held that the learned Controller has no power to condone the delay of the tenant in putting his appearance and or filing an application seeking leave to defend within the time prescribed. However this Court in Sonal Mansingh has held that the tenant can move the Controller to show that he was not duly served with the summons of the Eviction Petition and therefore any order of eviction passed against him is liable to be withdrawn. 15. As a bifurcated application of Order IX Rule 13 of the Code to the proceedings under Section 25B could not have been intended by the Court with one part applying to the proceedings under Section 25B while the other not applying thereto it has to be held that the application as approved by Sonal Mansingh to be maintainable is one under Section 25B(9) of the Act seeking review of the order passed by the Rent Controller. 16. An application filed by the tenant contending that he was not duly served and therefore eviction order could not have been passed against him would be one of seeking review of the order by which the learned Controller would have recorded that the summons of the Eviction Petition was duly served on the tenant. Such application would therefore be one under Section 25B(9) of the Act. In fact the learned senior counsel for the petitioner has submitted that the application filed by the tenant in such circumstances is not one under Order IX Rule 13 of the Code. This submission also fortifies the conclusion that such an application is to be considered as one filed under CM558 2020 Page 11 Section 25B(9) of the Act and as seeking review of the order of eviction passed ex parte. 18. Now coming to the question as to whether an order passed under Section 25B(9) of the Act would be appealable under Section 38 of the Act certain other provisions of the Act also need notice. 19. Section 37 of the Act gives the procedure to be followed by the learned Controller in general and reads as under: “37. Procedure to be followed by Controller. 1) No order which prejudicially affects any person shall be made by the Controller under this Act without giving him a reasonable opportunity of showing cause against the order proposed to be made and until his objection if any and any evidence he may produce in support of the same have been considered by the Controller. 2) Subject to any rules that may be made under this Act the Controller shall while holding an inquiry in any proceeding before him follow as far as may be the practice and procedure of a Court of Small Causes including the recording of 3) In all proceedings before him the Controller shall consider the question of costs and award such costs to or against any party as the Controller considers reasonable.” 20. Section 37 of the Act therefore mandates compliance with the principles of natural justice and further states that the Controller shall as far as may be follow the practice and procedure of a Court of Small CM558 2020 Page 12 21. Rule 23 of the Delhi Rent Control Rules 1959 provides that in deciding any question relating to the procedure not specifically provided by the Act and the said Rules the Controller and the Rent Control Tribunal shall as far as possible be guided by the provisions contained in the Code. 22. Section 38 of the Act provides for an appeal from every order of the learned Controller made under the Act to the learned Rent Control Tribunal and reads as under: “38. Appeal to the Tribunal. An appeal shall lie from every order of the Controller made under this Act only on questions of law to the Rent Control Tribunal consisting of one person only to be appointed by the Central Government by notification in the Official Gazette: Provided that no appeal shall lie from an order of the Controller made under section 21. 2) An appeal under sub sectionshall be preferred within thirty days from the date of the order made by the Controller: Provided that the Tribunal may entertain the appeal after the expiry of the said period of thirty days if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. 3) The Tribunal shall have all the power vested in a court under the Code of Civil Procedure 1908 when hearing an 3) 4) Without prejudice to the provisions of the Tribunal may on an sub section application made to it or otherwise by order transfer any proceeding pending before any Controller or additional Controller to another CM558 2020 Page 13 Controller or additional Controller and Controller or additional Controller to whom the proceeding is so transferred may subject to any special directions in the order of transfer dispose of the proceeding. 5) A person shall not be qualified for appointment to the Tribunal unless he is or has been a district judge or has for at least ten years held a judicial office in India.” In Vinod Kumar Chowdhry v. Smt Narain Devi Taneja 2 SCC 120 the Supreme Court considered the issue as to whether an appeal was maintainable against an order of the learned Rent Controller refusing to order eviction in a petition under Section 14(1)(e) of the Act filed by the landlord. The Supreme Court while answering the question in the negative observed as under: “ 12. It is in the above background that the question as to whether an appeal to the Tribunal or a revision to the High Court was competent against the order passed in the instant case by the Controller has to be decided and that brings us directly to the meaning of sub section of Section 25 B. The proviso to that sub section gives power to the High Court to revise “an order made by the Controller under this section” which expression is no doubt capable of being construed as any order of whatsoever nature passed by the Controller while acting in accordance with the procedure laid down in Section 25 B. The proviso however has to be read as a legislative measure carved out of the sub section to which it is appended and the order mentioned therein has to be regarded as an order of the type which the sub section speaks of. i.e. “an order for the recovery of possession of any premises made by the Controller in accordance with the procedure specified in this section”. Thus the order covered CM558 2020 Page 14 by sub section (and therefore by the proviso also) would be a final order disposing of an application on a conclusion of the proceedings under sub sectionor sub sectionof Section 25 B. This line of reasoning does not present any 13. Learned counsel for the tenant however argued that for an order to be covered by sub sectionof Section 25 B it must be an order for the recovery of possession of any premises made by the Controller. According to him if an order does not direct recovery of possession by the landlord from the tenant it is not an order which sub section would embrace. This contention though not wholly implausible runs counter to the in Devi Singh v. Chaman LalRajdhani LR 566] which was in Bhagwati Pershad v. Om PerkashRajdhani LR 26] and Mahavir Singh v. Kamal NarainRajdhani LR 159] and does not find favour with us. Sub section no doubt in terms speaks only of an order “for the recovery of possession of any premises” and does not mention one which refuses the relief of eviction to the landlord: but then it appears to us that the expression “order for the recovery of possession of any premises” has to be construed in the context in which it appears as an order deciding an application for the recovery of the possession of any premises. Our reasons in this behalf are two fold. Firstly if an order in favour of the landlord alone was meant to be covered by sub sectionan order refusing such relief would be liable to be called in question by way of an appeal or second appeal under Section 38 so that there would be two procedures for the end product of the Controller s proceedings being called in question one when the same is in favour of the landlord and another when it goes against him which would obviously entail discrimination and make the sub section suffer from a constitutional invalidity. It is an accepted rule of interpretation that if a provision can be construed in a manner which upholds its legal or constitutional validity it CM558 2020 Page 15 should if possible be so construed rather than the other way round. We do feel that the language used is not happy but then it would not be doing violence to it if it is construed as just above stated. 14. Secondly the scheme of the Act and the object of the introduction of Section 14 A and Chapter III A into it by the Amending Act make us form the opinion that sub section of Section 25 B is exhaustive of the rights of appeal and revision in relation to the proceedings held under that chapter. Before the enforcement of the Amending Act all disputes between a landlord and his tenant were liable to be dealt with according to a uniform procedure before the Controller as also in appeal and second appeal. No distinction was made between one kind of dispute and another. When it was felt that the procedure prescribed in the Act defeated by reason of the delay involved the very purpose of an application made under clause of the proviso to sub sectionof Section 14 especially in the case of landlords who themselves held accommodation allotted by the government or a local authority which they were required to vacate Section 14 A and Chapter III A were introduced by the Amending Act so as to cut down the time factor drastically so much so that a tenant was required to obtain leave from the Controller for contesting an application for his eviction before he could put up his defence and the Controller was given the power to refuse leave and straightway pass an order of eviction if he found that the grounds disclosed by the tenant in support of his right to dispute the landlord s claim were not such as would disentitle the landlord from obtaining an order of eviction. Sub section 7) further simplified the procedure on contest being allowed even though sub section of Section 37 itself provided for a procedure far simpler than ordinarily obtains in proceedings before a civil court. Then there is sub sectionwhich provides for the abolition of the right of appeal and second appeal and replaces it by a power in the High Court to revise an order passed CM558 2020 Page 16 by the Controller. That provision as a part of the overall picture painted must necessarily be construed as laying down procedure exclusive of that provided in Sections 38 and 39 and we hold that the four cases relied upon by the High Court in rejecting the contention raised on behalf of the tenant were correctly decided. 15. In the way of the above interpretation of sub section of Section 25 B the provisions of sub sectionthereof do not pose a hurdle. All that sub section states is that the procedure for the disposal of an application for eviction covered by sub section shall be the same as the procedure for disposal of other applications by Controllers except as provided in Chapter III A. Sub sectionas interpreted by us governs an application covered by sub section of Section 25 B and expressly takes away the right of appeal or second appeal while providing the remedy of revision instead. As we have held the provisions of sub section to be exhaustive of the remedies available to a person aggrieved by an order passed by the Controller in applications triable under Chapter III A such applications fall outside the category of those which can be disposed of like other applications under sub section read with the provisions contained in other chapters of the Act. 16. As a result of the above discussion we hold that the remedy of the landlady against the order of the Controller in the present case was by way of revision of that order by the High Court as laid down in the proviso to sub section of Section 25 B even though it was an order not directing but refusing recovery of possession of the premises in dispute.” 24. The judgment in Vinod Kumar Chowdhry was thereafter followed by this Court in R.S. Bakshi & Anr v. H.K. Malhari & Anr 2001 SCC OnLine Del 1344 to hold that even against an order granting CM558 2020 Page 17 leave to defend to the tenant the remedy of the landlord was in form of a petition under Sub sectionof Section 25B of the Act before this Court and not in form of an appeal under Section 38 of the Act. The said view has been consistently followed by this Court in various subsequent judgments. In Miss Santosh Mehta v. Om Prakash & Ors. 3 SCC 610 the Supreme Court considered whether an appeal would lie against an order passed under Section 15(7) of the Act in an Eviction Petition to which the summary procedure under Section 25A of the Act otherwise applies. The Supreme Court while holding that such an appeal was maintainable observed as under: “ 9. An order striking out the defence is appealable under Section 38. So this order is appealable. The reliance on Section 25 B(8) to negative an appeal is inept because this is not an order under that special section but one under Section 15. Moreover Section 25 B(10) preserves the extent contra the procedure except indicated in Section 25 B. Negation of a right of appeal follows from Section 25 B(8) only if the order for recovery is made “in accordance with the procedure specified in this section”of the Act is merely CM558 2020 Page 18 consequential to an order passed under Section 15(2) of the Act even the order passed under Section 15(2) of the Act would be appealable under Section 38 of the Act. The Division Bench of this Court disapproved with the earlier decisions of the learned Single Judge of this Court in R.K. Parikh v. Smt. Uma Verma AIR 1979 Del 17 Ram Nath & Anr. v. O.P. Khadria AIR 1980 Del 237 and in Pran Nath Kapur v. Ram Shiksh Mehta 18 DLT 300 which had taken a contrary view. 27. A reading of the above quoted provisions of the Act as also the above referred judgments would clearly show that Section 25A of the Act gives primacy to the procedure contained in Section 25B of the Act for an Eviction Petition filed under Section 14(1)(e) or 14A 14B 14C or 14D of the Act and a remedy of an appeal under Section 38 of the Act would not be available to the parties to such Eviction Petition against any order passed in exercise of such procedure. However in such a petition if an order passed by the learned Rent Controller is not traceable to the special procedure prescribed in Section 25B of the Act a remedy of an appeal under Section 38 of the Act if otherwise available in Eviction Petitions or proceedings filed under other provisions of the Act shall be available to the parties. 28. Once it is held that the application seeking recall of the order passed by the Controller holding the tenant to be duly served with the summons of the Eviction Petition is one filed under Section 25B(9) of the Act the judgment of the Supreme Court in Vinod Kumar Chowdhry supra) which having considered the object and scheme of Chapter IIIA and given primacy to such procedure over any general procedure CM558 2020 Page 19 inconsistent with Chapter IIIA and further holding that Sub sectionof Section 25B of the Act is exhaustive of the rights of appeal and revision in relation to the proceedings held under that Chapter IIIA taking away the right of an appeal while providing the remedy of revision instead would squarely be applicable. The remedy of an appeal under Section 38 of the Act would therefore not be available to the tenant in such In the present case therefore it is held that the application of the petitioner though titled as one filed under Order IX Rule 13 of the Code was one under Sub sectionof Section 25B of the Act and therefore in terms of Section(s) 25A and 25B of the Act any order passed thereon shall not be appealable under Section 38 of the Act. The only remedy for the petitioner would be under Sub sectionof Section 25B of the Act to this Court. 30. At this stage I should also refer to the three judgments relied upon by the learned senior counsel for the petitioner in specific. In Central Bank of India v. Shri Gokal Chand AIR 1967 SC 799 the Supreme Court was considering whether an appeal under Section 38 of the Act was maintainable against an order refusing to appoint a Local Commissioner to visit the tenanted premises. The Supreme Court held that though the language of Section 38 of the Act may seem to suggest that an appeal lies against all or any order of the learned Rent Controller however no appeal would lie against any interlocutory order which are merely procedural and do not affect the rights and liabilities of the parties. Though the Supreme Court held that an order refusing to set aside CM558 2020 Page 20 an ex parte order is subject to appeal to the learned Rent Control Tribunal it is to be noted that the said judgment was passed prior to the amendment introducing Chapter IIIA of the Act on 01.12.1975. Therefore there was no occasion for the Supreme Court to consider the effect of Section 25B(8) of the Act on the maintainability of an appeal against an order passed in an eviction petition to which the procedure prescribed in Section 25B applies. In Inder Mohan Sachdeva v. Usha International Ltd. 189 DLT 5 this Court considered whether an appeal would lie against an order dismissing the eviction petition in default of appearance of the landlord. This Court relying upon the judgment of the Supreme Court in Central Bank of India held that as an order dismissing the petition affects the rights and liabilities of the parties an appeal under Section 38 of the Act would be maintainable. However it needs to be emphasised that in the said judgment this Court again did not consider the effect of Sub section of Section 25B of the Act and merely confined its consideration to whether an order dismissing the eviction petition for default can be termed as an interlocutory order. 33. The learned senior counsel for the petitioner submits that in Karma Wali v. Rajinder Singh 15 DLT 1 this Court has held an appeal to be maintainable against an order dismissing the application under Order IX Rule 13 of the Code in an Eviction Petition filed under Section 25B of the Act. In my view however this judgment also cannot be used as a precedent for the above proposition as it was pronounced on the peculiar facts of that case. In the said case the High Court noted that the CM558 2020 Page 21 question of lack of jurisdiction of the learned Rent Control Tribunal was never raised before the Tribunal itself. Further the tenant had earlier filed a revision petition which was opposed by the landlady stating that an appeal was maintainable against the order and on this plea the landlady had succeeded in having the revision petition dismissed. The Court therefore held that the landlady could not be allowed to approbate and reprobate. This Court did not consider the question as to whether an appeal indeed was maintainable against the order dismissing the application under Order IX Rule 13 of the Code in case of an eviction petition filed under Section 25B of the Act. 34. The question of law raised in the present petition also needs to be considered against the general principles applicable to Order IX Rule 13 and Order XLIII Rule 1(d) of the Code. 35. Order IX Rule 13 of the Code reads as under: “13. Setting aside decree ex parte against defendants. — In any case in which a decree is passed ex parte against a defendant he may apply to the Court by which the decree was passed for an order to set it aside and if he satisfies the Court that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing the Court shall make an order setting aside the decree as against him upon such terms as to costs payment into Court or otherwise as it thinks fit and shall appoint a day for proceeding with the suit Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also: CM558 2020 Page 22 Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff s claim. Explanation. — Where there has been an appeal against a decree passed ex parte under this rule and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal no application shall lie under this rule for setting aside the ex parte decree.” xxx “1. Appeal from orders. —An appeal shall lie from the following orders under the provisions of section 104 namely : d) an order under rule 13 of Order IX rejecting an applicationfor an order to set aside a decree passed ex parte” Emphasis supplied) 36. Order XLIII Rule 1of the Code provides for an appeal against an order rejecting the application under Order IX Rule 13 of the Code and reads as under: In Bhanu Kumar Jain v. Archana Kumar & Ors. 1 SCC 787 the Supreme Court held that against an ex parte decree the defendant has two options: to file an appeal under Section 96 of the Code challenging the decree and or to file an application under Order IX Rule 13 of the Code seeking setting aside of the decree. The defendant can take recourse to both the options simultaneously however if the appeal CM558 2020 Page 23 is dismissed the application under Order IX Rule 13 of the Code will not be maintainable. It was held that the converse however is not true. The Court observed as under: 37. We have however no doubt in our mind that when an application under Order 9 Rule 13 of the Code is dismissed the defendant can only avail a remedy available thereagainst viz. to prefer an appeal in terms of Order 43 Rule 1 of the Code. Once such an appeal is dismissed the appellant cannot raise the same contention in the first appeal. If it be held that such a contention can be raised both in the first appeal as also in the proceedings arising from an application under Order 9 Rule 13 it may lead to conflict of decisions which is not contemplated in law. 38. The dichotomy in our opinion can be resolved by holding that whereas the defendant would not be permitted to raise a contention as regards the correctness or otherwise of the order posting the suit for ex parte hearing by the trial court and or existence of a sufficient case for non appearance of the defendant before it it would be open to him to argue in the first appeal filed by him against Section 96(2) of the Code on the merits of the suit so as to enable him to contend that the materials brought on record by the plaintiffs were not sufficient for passing a decree in his favour or the suit was otherwise not maintainable. Lack of jurisdiction of the court can also be a possible plea in such an appeal. We however agree with Mr. Chaudhari that the “Explanation” appended to Order 9 Rule 13 of the Code shall receive a strict construction as was held by this court in Rani Choudhury 2 SCC 596] P. Kiran Kumar 5 SCC 161] and Shyam Sundar Sarma v. Pannalal Jaiswal and Ors. 1 SCC 436].” In Bhivchandra Shankar More v. Balu Gangaram More & Ors. 2019) 6 SCC 387 the Supreme Court explained the difference in the CM558 2020 Page 24 scope of an application under Order IX Rule 13 of the Code and an appeal under Section 96 of the Code against an ex parte decree as under: 10. A conjoint reading of Order 9 Rule 13 CPC and Section 96(2) CPC indicates that the defendant who suffered an ex parte decree has two remedies: either to file an application under Order 9 Rule 13 CPC to set aside the ex parte decree to satisfy the court that summons were not duly served or those served he was prevented by sufficient cause" from appearing in the court when the suit was called for hearing to file a regular appeal from the original decree to the first appellate court and challenge the ex parte decree on merits. 11. It is to be pointed out that the scope of Order 9 Rule 13 CPC and Section 96(2) CPC are entirely different. In an application filed under Order 9 Rule 13 CPC the Court has to see whether the summons were duly served or not or whether the defendant was prevented by any “sufficient cause” from appearing when the suit was called for hearing. If the Court is satisfied that the defendant was not duly served or that he was prevented for “sufficient cause” the court may set aside the ex parte decree and restore the suit to its original position. In terms of Section 96(2) CPC the appeal lies from an original decree passed ex parte. In the regular appeal filed under Section 96(2) CPC the appellate court has wide jurisdiction to go into the merits of the decree. The scope of enquiry under two provisions is entirely different. Merely because the defendant pursued the remedy under Order 9 Rule 13 CPC it does not prohibit the defendant from filing the appeal if his application under Order 9 Rule 13 CPC is dismissed.” In M s Gokul Dairy Farm Agra & Ors. v. Canara Bank & Ors. 1996 SCC OnLine All 414 the Allahabad High Court held that where an application under Order IX Rule 13 of the Code is dismissed for non CM558 2020 Page 25 fulfilment of the conditions stipulated in the order passed thereon the remedy of the defendant in the Suit is to file an appeal under Order XLIII Rule 1(d) of the Code. 40. However another important facet of Order XLIII Rule 1(d) of the Code is that an appeal against an order rejecting an application under Order IX Rule 13 of the Code is maintainable only where the main decree itself is open to an appeal. Where the decree itself is not open to an appeal an order rejecting an application under Order IX Rule 13 of the Code would equally not be appealable. In Nihal Singh & Anr. v. Khushhlal Singh 1916 SCC OnLine All 174 it was held that the words in Order XLIII Rule 1(d) of the Code are perfectly general they are “in case open to an appeal.” Therefore what has to be determined is whether in the case the decree is open to an appeal. 42. The Calcutta High Court in Mahendra Chandra Datta Ray v. Basir Uddin 1936 SCC OnLine Cal 99 held that the said phrase means that the case which if admitted to be restored would itself give rise to an appealable order or decree if it was heard and decided on merit. In the present case the eviction order itself is not appealable in terms of Sub sectionof Section 25B of the Act. Therefore even if the application is treated to be the one under Order IX Rule 13 of the Code an order dismissing the said application would not be appealable under Section 38 of the Act. To hold otherwise would be to defeat the object of introducing Chapter IIIA to the Act in much as an appeal which even CM558 2020 Page 26 otherwise is not maintainable under the Code would be considered as maintainable under Section 38 of the Act which itself has been held to be restricted in application.44. The submission of the learned senior counsel for the petitioner that the order passed by the Controller would be appealable under Section 38 of the Act as “every order of the Controller” is appealable cannot also be accepted. As noted hereinabove the order passed by the Controller would be one referable to Sub sectionof Section 25B of the Act and in terms of Section 25A and Sub sectionof 25B application of Section 38 of the Act would stand excluded. 45. The judgment in Miss Santosh Mehta and Madan Lal Bhatia would also not come to the aid of the petitioner hererin inasmuch as the orders therein were not passed under Section 25B of the Act but under Section 15 of the Act. In view of the above the question of law is answered by holding that in an Eviction Petition to which the procedure prescribed under Section 25B of the Act applies an appeal under Section 38 of the Act is not maintainable against an order dismissing an application under Order IX Rule 13 of the Code Section 25B(9) of the Act. The only remedy available to the aggrieved tenant is in form of a petition under Sub sectionof Section 25B of the Act before the High Court. I therefore find no infirmity in the Impugned Order. The petition is dismissed. CM558 2020 Page 27 48. There shall be no order as to costs. NAVIN CHAWLA J APRIL 22 2021 rv P G CM558 2020 Page 28

Disclosure of Personal Information is exempted under RTI Act

The Hon’ble High Court of Delhi in Dr. RS Gupta V. GNTCD [LPA 207/2020], held that absence of any larger public interest, disclosure of personal information is exempted under the Right to Information (RTI) Act, as the same will be unwarranted invasion of privacy under Section 8(1)(j) of the Act . The division bench of Hon’ble Justices Manmohan and Sanjeev Narula observed that, “The attendance record is part of service record which is a matter between the employee and the employer and ordinarily these aspects are governed by the service rules which fall under the expression “personal information”. The disclosure of this information ex-facie has no relationship to any public activity or public interest and pertinently, the appellant is not able to explain or show any nexus between the personal information sought and the public interest involved, for seeking its disclosure.” The Hon’ble Court noted that the information which was sought by the appellant with regards to other employees contained medical and personal information of the individuals which has no relationship with any public activity or public interest. The appellant in the present case had filed an RTI application with the Director of Education, Delhi seeking information pertaining to a School regarding his attendance record along with the rest of the staff members, the copy of attendance record of appellant was provided but the record of other staff member was declined pursuant to S. 8(1)(j) of the RTI Act. The Hon’ble court observed that it was not necessary for schools to send a copy of the attendance register of employees to the Department of Education and the department could not be compelled to furnish the information that is not available in the records not maintained by them. It was further observed that “Thus, in our view, in absence of even a remote connection with any larger public interest, disclosure of information would be exempted as the same would cause unwarranted invasion of the privacy of the individual under section 8(1) (j) of the RTI Act. Petitioner has thus failed to establish that the information sought for is for any public interest, much less ‘larger public interest’.” Click here to Read Judgement The division bench of Hon’ble Justices Manmohan and Sanjeev Narula observed that, “The attendance record is part of service record which is a matter between the employee and the employer and ordinarily these aspects are governed by the service rules which fall under the expression “personal information”. The disclosure of this information ex-facie has no relationship to any public activity or public interest and pertinently, the appellant is not able to explain or show any nexus between the personal information sought and the public interest involved, for seeking its disclosure.” The Hon’ble Court noted that the information which was sought by the appellant with regards to other employees contained medical and personal information of the individuals which has no relationship with any public activity or public interest.

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 17.08.2020 Pronounced on: 31.08.2020 LPA 207 2020 DR. R. S. GUPTA .....Appellant Through: Appellant in person. Through: Mr.Gautam Narayan ASC GNCTD) with Ms.Dacchita Shahi Advocate for respondent Nos.1 to 5. Mr.Parvinder Chauhan Mr.Nitin Jain Advocates for respondent No.9. GOVT. OF NCTD & ORS. .....Respondents HON BLE MR. JUSTICE MANMOHAN HON BLE MR. JUSTICE SANJEEV NARULA J U D G E M E N T SANJEEV NARULA J. 1. The present appeal under Clause X of the Letters Patent is directed against the final judgment and order dated 12th May 2020 passed by the learned Single Judge in W.P.(C) 8352 2018 whereby appellant’s writ petition impugning the order passed by respondent No.3 declining to furnish the requested information under the Delhi Right to Information Act 2001has been rejected. LPA 207 2020 2. Brief factual matrix leading to the filing of the present appeal is that the appellant filed an application under DRTI Act 2001 before respondent No.5 and respondent No.6 Mrs. Ranjana Daswal Additional Spl. Director seeking information pertaining to Geeta Senior Secondary School No.2 Sultanpuri Delhi. Appellant sought attendance record pertaining to himself for the period from April 2015 to March 2017 and also of the rest of the staff members serving in the same school. The copy of the attendance register pertaining to the appellant was provided to him however at the same time information concerning the other staff members was declined on the ground that information requested was exempted under Section 8(1)(j) of the Right to Information Act 2005. Aggrieved with the response received appellant filed an appeal under Section 7 of DRTI Act before Public Grievance Commissionthe designated appellate authority under the Act. 3. In the appeal proceeding the Deputy Director of Education Zone XII filed reply and furnished a copy thereof to the appellant wherein inter alia it was stated as under: “1. That for para 1 copy of attendance pertaining to the Appellantw.e.f April 2015 to March 2017 has already been provided to the Appellant on 5 05 2017 on depositing Rs. 120 cannot be provided as it is the third party information and comes under section 8 (J) of RTI ACT as there is no LPA 207 2020 large public interest was involved for which this information was being sought.” Vide order dated 4th September 2017 respondent No.6 was directed to confirm whether attendance record is submitted along with the monthly salary bills received from aided school for the release of salary through ECSDirectorate of Education is directed to clarify whether as per the Act and Rules or under any other order of the Directorate it is mandatory for the aided schools to submit copy of attendance register every month to the Education Department. Competent Authority shall further clarify what documents are required to be submitted by the aided schools authorities for release of salary to the staff members. The clarification should be submitted to the Appellate Authority Chairman before the next date of hearing. 4.2 A senior officer well conversant with the facts of the case must be deputed on the next date of hearing. The next date of hearing in this appeal case is scheduled for Monday 11th December 2017 at 11:00 A.M.” 5. On 9th February 2018 Deputy Director of Education Zone XII submitted a reply to the following effect: “OFFICE OF THE DY. DIRECTOR OF EDUCATION ZONE XII DISTT.NWQ BLOCK MANGOLPURI DELHI 110083. No.: Zone XII 74 Date: 09 02 2018 To The Appellate Authority Chairman Public Grievance Commission LPA 207 2020 Govt. of NCT of Delhi. Subject: Reply Appeal No. 247 2017 PGC DRTI Edn Dr. R. S. Gupta. Sir 247 2017 PGC DRTI Edn. as cited in the subject above. In this connection the school authorities has submitted their reply on 16 11 2017 Ref. No. Geeta. 2 2017 18 461(Copy As per order No. F. DE 15 ACT POLICY 2008 6718 6741 dated 05 09 2008under section 10of Delhi School Education Act 1973 specifies that "the Managing Committee of every aided school shall deposit every month its share towards pay and allowances medical facilities pension. Gratuity provident fund and other prescribed benefits with the Administrator shall disburse or cause to be disbursed with the last week of every month the salary and allowances to the employees of aided schools" and whereas this power of the Administrator has been delegated to the Director of Education and whereas an undertaking has been given by the Department before the Hon ble supreme Court in the matter of Environmental &Consumer Protection Foundation vs. Delhi Administration &Ors. Therefore it is hereby ordered to disburse the salary to the employees of Aided Schools under the Directorate of Education through Electronic Clearance System from the month of September 2008 onwards. Thus as per the order No. F. DE 15ACT POLICY 2008 6718 6741 dated 05 09 2008forwarding of the copy of attendance register of the staff school concerned need not be send alongwith the monthly salary bills to the Department. The following documents are being attached with the salary bills every month as per the information received from the school concerned. 1. Salary FormNyaya Khand 2 Indira Puram Ghaziabad U.P. 201014 Directorate of Education Old Secretariat Delhi 110054 Competent Authority Additional Director of EducationAppeal No. Application Filed on Response of Competent Authority No response received Appeal Filed on 20 07 2017 First hearing in PGC 04 09 2017 1. Brief facts of the Appeal Dr. RS. Gupta filed Form A during May 2017 under the Delhi RTI Act 2001 with the Competent Authority i.e. Additional Director of Education Directorate of Education seeking information on total 3 counts. LPA 207 2020 Dr. RS. Gupta did not receive a response from the office of Additional Director of Education Directorate of Education hence he filed an Appeal during July 2017 before the Appellate Authority PGC under Section 7 of Delhi Right to Information Act. 2001. 2. Proceedings in the Public Grievance Commission The Public Grievance Commission has so far convened two hearings on 4th September 2017 and 12th February 2018. At today s hearing on 12 02 2018 the attendance was as follows: Sh. Bharat Bhushan Gupta DDE Dte. of Relevant facts emerging during the hearing 3. 1 At the last hearing held on 04 09 2017 directions given by the PGC were as follows: Competent Authority i.e. Additional DirectorDirectorate of Education is directed to clarify whether as per the Act and Rules or under any other order of the Directorate it is mandatory for the aided schools to submit copy of attendance register every month to the Education Department. Competent Authority shall further clarify what documents are required to be submitted by the aided school authorities for release of salary to the staff members. The the Appellate Authority Chairman before the next date of hearing. A senior officer well conversant with the facts of the case must be deputed on the next date of hearing". should be 3.2 At today s hearing on 12 02 2018 Sh. Bharat Bhushan Gupta DDEDirectorate of Education submitted a reply dated 09.02.2018 before the next Appellate Authorityfurther informed that as per the order No.F.DE15 ACT POLICY 2008 6718 6741 dated 05 09 2008 issued by the Director copy of attendance register of the school staff concerned need not be sent alongwith the monthly salary bills to the Department. He has also mentioned the documents which are attached with the salary bills each month by the school. 4. Directions of the Appellate Authority PGC. 4.1 On perusal of the reply it is observed that the department has provided satisfactory reply to the clarification sought by the Appellate Authority PGC on the last date of hearing. With the above directions observations the present appeal case is ordered to be disposed of before the Appellate Authority MemberAPPELLATE AUTHORITY MEMBER7. The appellant was still unsatisfied and impugned the order by filing a writ petition before this court. The learned Single Judge dismissed the same noting that the appellant had received his personal information and that there was no infirmity in the order refusing to furnish information pertaining to other staff members of the school. The learned Single Judge also noted that in view of section 22 of the RTI Act Section 8(1)(j) and the principles stated in the said section would apply to the facts of this case. The relevant portion of the impugned order reads as under: “10. It is clear from a perusal of the RTI application filed by the petitioner that he was seeking the complete copies of the school staff attendance registers. This has been rightly refused as the information pertains to private information of other employees and would tantamount to invasion of the Right to Privacy. The petitioner has LPA 207 2020 received his personal information. Accordingly in my opinion there is no infirmity in the impugned order to warrant any interference by this court. 11. It is also quite clear that under section 22 of the RTI Act the provisions of the said Act would have effect notwithstanding anything inconsistent contained in any other law for the time being in force or any instrument having effect by virtue of law other than the Act. Section 22 of the RTI Act reads as follows: 22. Act to have overriding effect. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act 1923 and any other law for the time being in force or in any instrument having effect by virtue of any law other than this 12. Keeping in view the said provisions and section 8(1)(j) of the RTI Act the principles stated in the said section would apply to the facts of this case. Section 8(1)(j) of the RTI Act reads as follows: information which 8. Exemption from disclosure of information.—(1) Notwithstanding anything contained in this Act there shall be no obligation to give any citizen to personal the disclosure of which has no relationship to any public activity or interest or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority as the case may be is satisfied that the larger public interest justifies the disclosure of such information: LPA 207 2020 Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person." 13. Clearly giving personal information to the petitioner of other employees would be an invasion of the privacy of the individual. There is no larger public interest involved to warrant taking a different view. 14. Another plea raised by the petitioner was that some of the schools have in response to separate RTI applications confirmed that attendance record of the staff is sent to respondents No.5 and 6. Merely because some of the schools in response to the RTI Application sent by the petitioner have mentioned that they are sending the attendance sheet to the Govt. of NCT of Delhi cannot be a ground to give copies of the said attendance sheet to the petitioner. This plea of the petitioner is misplaced. 15. As far as the plea of the petitioner that the hearing was not given by the concerned functionary respondents No.2 and 3 in their counter affidavit which is sworn by the Deputy Secretary Public Grievance Commission Govt. of NCT of Delhi clearly states that the hearing was given by respondent No.3. Respondent No.3 has signed the order and dated it as 21.3.2018. I see no reason to disbelieve the said averment of respondentNo.2 and respondent No.3. This plea is rejected. 16. Even otherwise as noted above there is no merit in the contentions raised by the petitioner. 17. There is no merit in the petition. Petition is accordingly dismissed.” 8. The appellant who appeared in person before us assailed the order of the learned Single Judge by urging that the information sought by the appellant cannot be refused. He raised two fold submission. Firstly he LPA 207 2020 submits that the authority deciding the appeal was not empowered and authorized to do so. He argued that on 12th February 2018 as well as on 21st March 2018 there was no inherent power with respondent No.3 to act as the Appellate Authority. The specific authorization issued in this behalf being letter dated 20th March 2018 was received by the department only on 22nd March 2018. Till such time the authorization was received the officer could not discharge the role and function of Appellate Authority. Secondly he argues that respondent No.8 in the writ petition had submitted false information to PGC on 12th February 2018 without approval of the competent authority. He argues that the reply placed on record is absurd and did not in any manner justify the stand taken in the said communication so as to deny the information to the appellant. Lastly the appellant asserts that the information pertaining to himself has also not been supplied. 9. Mr. Gautam Narayan learned ASC on behalf of the respondent No.1 and Mr. Parvinder Chauhan learned Counsel on behalf of the school who appeared on advance notice submitted that the information sought by the appellant cannot be furnished as the same is specifically covered under Section 8(1)(j) of the RTI Act. Without prejudice Mr. Narayan submits that although personal information pertaining to the appellant has been furnished to him as recorded in the impugned order yet in order to put the controversy at rest he has no objection to provide the same once again if the court were to issue such a direction. Learned ASC further submitted that it was not mandatory for aided schools to submit the copy of the attendance register every month to the Education LPA 207 2020 Department for the release of the salary to the staff members. He explained that now disbursal is done through the ECS system and therefore furnishing of attendance register alongwith monthly bills is not a requirement. He further argued that such information is kept by the school and not forwarded to the Education Department. With respect to the competence of the appellate authority he clarified that respondent No.3 was authorized to hear the appeal under the RTI Act as an ‘appellate authority’. He also pointed out that vide notification dated 12th December 2017 respondent No.3 had been appointed as a Whole Time Member of the Public Grievance Commission and could therefore authoritatively and legally discharge the functions of the Appellate Authority. Therefore as on the date of the hearing as well as deciding the appeal he was fully competent and had the jurisdiction to pass the order. Later vide order dated 20th March 2018 he was appointed as the Head of the Department for the Commission as the post of the Chairman was vacant at that time. This appointment is being misconstrued by the appellant as the authorization to act as the appellate authority. 10. We have given due consideration to the submissions advanced by the parties and have carefully perused the record. Under section 7 of the DRTI Act any person aggrieved by an order of the competent authority or any person who has not received any order from the competent authority within thirty working days may appeal to the Public Grievances Commission. The organizational structure of the Commission comprises of the chairman and members. The appeal was LPA 207 2020 decided by the Commission through Respondent No.3 who was its member. Except for making a bald assertion the appellant is unable to demonstrate as to how respondent No.3 who was member of the Public Grievance Commission could not act as the Appellate Authority. The fact that respondent No.3 was declared as the Head of the Department for the Commission vide order dated 20th March 2018 does not mean that authority to discharge the functions of the Appellate Authority stood conferred only from the said date by virtue of such appointment. Therefore there is no merit in the contention of the appellant that the order dated 20th March 2018 has been passed by an authority not competent to decide the appeal. We also do not find any merit in the contention of the appellant that the stand of the DOE before the Appellate Authority is not supported by the Policy document dated 05.09.2008 relied upon by them. The Department of Education has categorically stated on record that from 2008 onwards salary to employees of aided schools is disbursed through the ECS and therefore it is not necessary to send a copy of the attendance register along with salary bills for such disbursal. We therefore fail to understand how Department of Education can be compelled to furnish the information that is not available in the records not maintained by them at least from September 2008 onwards. Further the appellant is seeking attendance record of the other staff members of the Geeta Senior Secondary School No.2 Sultanpuri Delhi. Since information requested relates to attendance record it would entail revealing medical and personal information of an individual. The attendance record is part of service record which is a matter between LPA 207 2020 the employee and the employer and ordinarily these aspects are governed by the service rules which fall under the expression “personal information”. The disclosure of this information ex facie has no relationship to any public activity or public interest and pertinently the appellant is not able to explain or show any nexus between the personal information sought and the public interest involved for seeking its disclosure. Thus in our view in absence of even a remote connection with any larger public interest disclosure of information would be exempted as the same would cause unwarranted invasion of the privacy of the individual under section 8(1) of the RTI Act. Petitioner has thus failed to establish that the information sought for is for any public interest much less ‘larger public interest’. Therefore we are not inclined to entertain this appeal. 11. Before parting we may add that Appellant has argued that several Aided schools have stated that they are enclosing their monthly record of staff attendance register with their salary bills and hence it is not the third party information. We are not inclined to accept this contention in view of the categorical stand taken by the DOE. If some schools are volunteering their information to DOE it does not mean that information qua the employees of the school in question does not pertain to a third party. Lastly as is borne out from documents placed on record and as observed by the Learned Single Judge we have no reason to accept Appellant’s contention that he is not in receipt of information relating to his personal record. Nevertheless since Mr. Narayan without prejudice has agreed to furnish the same we direct LPA 207 2020 accordingly. Let the information pertaining to appellant’s personal attendance record that was provided earlier be furnished to him once again within 3 weeks from today. The appeal is dismissed with the above directions. SANJEEV NARULA J MANMOHAN J AUGUST 31 2020 LPA 207 2020

Allegations against noticee for  unfair trade practices disposed of due to absence of trade log – THE SECURITY AND EXCHANGE BOARD OF INDIA

Allegations against noticee for  unfair trade practices disposed of due to absence of trade log – THE SECURITY AND EXCHANGE BOARD OF INDIA The SEBI conducted an investigation into the trading of K. Sera Sera Production Ltd. And observed violation of SEBI regulations, 2003 by certain employees and one such employee was Mr. Sunil Kumar Purohit (Noticee) and adjudication proceedings were initiated against the noticee for alleged violations of  Regulations 4(1), 4(2)(a), 4(2)(b) and 4(2)(g) of PFUTP Regulations and an adjudication officer was appointed SOMA MAJUMDER in [ADJUDICATION ORDER NO. Order/SM/DD/2021-22/15035] A show-cause notice was sent to noticee under  Rule 4 of the SEBI Rules, 1995 to show cause as to why an inquiry should not be held and the penalty is not imposed under Section 15HA of the SEBI Act for the alleged violations. The notice was served and the noticee authoritative representative responded to the alleged violations the adjudication proceedings were initiated and it was found out that Noticee purchased 13,04,870 shares and sold 13,04,605 shares constituting around 7.25% and 6.90% of total volume traded during the period under investigation respectively and the pattern of circular trading indicates that it was usually among a group of brokers and same numbers of shares were rotated circularly among brokers in the group daily so that the same number of shares go back to the original seller The Investigation reports alleges that this manipulative trading operation was planned very carefully to avoid any easy detection. The SCN alleged that few members and their clients including Noticee, accounted for a large percentage of the total traded volumes in the scrip and majority of the trades were synchronized in nature and the noticee traded very carefully and instead of regular trading the noticee chose a particular time and it helped noticee in creating an artificial environment in the market. The noticee in one of the replies contended that the noticee has not been provided with the original trade log and order log which contained all the details of alleged trades done by noticee in the scrip of  K. Sera Sera. The officer also considers that the trade log is not available on record and some efforts were made to obtain the trade log but it was informed that the data was not available in the system the officer also noted that the details cannot be obtained and since the details cannot be obtained the officer notes that Noticee has been alleged to have created artificial volume through circular and synchronized trades, from the material available on record and no connection can be established with the material available on record. Noticee in his further submissions stated that t in absence of the trade log and order log. The noticee was not able to file legal submission on the merits of the case and the officer also believes that in the absence of the documents it is impossible to comment on the accuracy of the data which forms the basis of the charge of synchronized and circular trades amounting to violations of PFTUP Regulations by Noticee. Therefore in the absence of relevant trade log and order log and considering the error in the data provided in the SCN and also placing reliance on aforesaid judgment. The officer decides that the allegation against Noticee that he has violated Regulations 4(1), 4(2) (a), (b), and (g) of PFUTP Regulations cannot be established and the adjudication proceedings against the noticee are disposed of. Click here to read the Order

BEFORE THE ADJUDICATING OFFICER SECURITIES AND EXCHANGE BOARD OF INDIA ADJUDICATION ORDER NO. Order SM DD 2021 22 15035] UNDER SECTION 15 I OF SECURITIES AND EXCHANGE BOARD OF INDIA ACT 1992 READ WITH RULE 5 OF SEBI RULES In respect of: Mr. Sunil Kumar Purohit PAN AHSPP9704F] In the matter of K. Sera Sera Production Limited FACTS OF THE CASE IN BRIEF 1. Securities and Exchange Board of Indiahad conducted investigation into the trading in the scrip of K. Sera Sera Production Ltd.(hereinafter referred to as “K. Sera Sera Scrip Company”) during the period from June 01 2004 to October 31 2004 Regulations 2003by certain entities including Mr. Sunil Kumar Purohitwas issued to Noticee under Rule 4 of the SEBIRules 1995 to show cause as to why an inquiry should not be held and penalty be not imposed under Section 15HA of the SEBI Act for the alleged violations of Regulations 4(1) 4(2)(a) 4(2)(b) and 4(2)(g) of PFUTP Regulations by 3. I note that subsequent to transfer of Mr. Biju S. to another department of SEBI Mr. D. Ravi Kumar was appointed as Adjudicating Officer to inquire into and adjudge under Section 15HA of SEBI Act 1992 the alleged violations of provisions of PFUTP Regulations by the aforesaid entities including Noticee. 4. The erstwhile AO vide Adjudication Order dated June 30 2010 concluded that Noticee had violated the provisions of PFUTP Regulations and imposed a penalty of Rs. 15 00 000 under Section 15HA of the SEBI Act on Noticee. 5. Thereafter an appeal Appeal No. 145 of 2015 was filed before Hon’ble Securities Appellate Tribunalby Noticee. Vide order dated March 07 2016 Hon’ble SAT set aside the aforesaid Adjudication Order dated June 30 2010 passed by the erstwhile AO and restored the matter to the file of Adjudicating Officer for passing fresh order on merits and in accordance with law. In its order Hon’ble SAT held that: “In the light of judgment of the Apex Court in the case of SEBI vs. Roofit Industries Ltd. reported in194 Comp. Cas. 186Counsel for the parties state that the orders impugned in the respective appeals be quashed and set aside and the matters be restored to the file of the adjudicating officer for passing fresh order on merits and in accordance with the Law. Accordingly orders impugned in the said respective appeals are quashed and set aside by restoring the matters to the file of the adjudicating officer so as to Adjudication Order in respect of Sunil Kumar Purohit in the matter of K.Sera Sera Production pass fresh order on merits and in accordance with the law. All contentions of both parties are kept open” 6. In accordance with the aforesaid order of Hon’ble SAT SEBI vide order dated March 04 2021 appointed undersigned as the Adjudicating Officer under Section 19 of SEBI Act read with Section 15I and Rule 3 of Adjudication Rules to inquire into and adjudge under the provisions of Section 15HA of SEBI Act the alleged violation of provisions of Regulations 4 4 2)(b) andof PFUTP Regulations by Noticee. SHOW CAUSE NOTICE REPLY AND HEARING 7. The relevant extracts of the SCN containing the observations and allegations are reproduced hereunder: “It is noted from the findings of the Investigation Report that a group of clients and a few members including you traded significantly in the scrip of KSERA during the period under investigation. On analysing the trading pattern among the major members on the gross purchases and sales namely S P J Stock Brokers Pvt. Ltd.( dealing in own account). M s. Vijay Bhagwandas & Company M s. Harikishan Hiralal Financial Services Ltd.( dealing in own account) Adolf Pinto( dealing on behalf of Mr. Kenneth Pinto and Ms. Gillian Pinto) and Galaxy Broking( dealing for Shri Kapil Bhuptani) it was observed that the said brokers and clients accounted for a large percentage of the total traded volumes in the scrip during the investigation period and majority of the trades were among the said group through synchronized orders. ii. The Investigation Report suggests that the abovementioned group of members and clients aggregately purchases 9329344 shares and sold 9259474 shares which constituted almost 51.73% of the gross volume on the exchange during the period under investigation. Majority of the Adjudication Order in respect of Sunil Kumar Purohit in the matter of K.Sera Sera Production brokers appearing in the list of top ten brokers on gross purchases basis also appear as top brokers in gross sales basis. The details of the concentration among various entities are stated below: Broker Name Client Total Buy Buy Total Sell Sell of of Adlof Pinto company Fincom Ltd Broking Ltd M Upadhyay SPJ Stock Adjudication Order in respect of Sunil Kumar Purohit in the matter of K.Sera Sera Production Brokers Pvt. Services Ltd Broker Name Client Total Buy Buy Total Sell Sell of of Grand Total iii. According to the Investigation Report Noticee dealing through stock broker Vijay Bhagwandas & Co had purchased 6 13 358 shares and sold 6 13 093 which accounted for 3.41% of the total market volume. Noticee dealing through another stock broker Sanchay Fincom Ltd. had purchased 6 91 512 shares and sold 6 91 512 shares constituting almost 3.84% of shares traded during the period under investigation. As a whole through both the stock brokers Noticee purchased 13 04 870 shares and sold 13 04 605 shares constituting around 7.25% and 6.90% of total volume traded during the period under investigation respectively. Within the group Noticee purchased 9 15 808 shares and sold 8 21 002 constituting 5.09% and 4.56% respectively of total volume traded during the period under investigation. It is noted from the Investigation Report that the pattern of circular trading indicates that it was usually among a group of brokers and same numbers of shares were rotated in a circular manner among brokers in the group on daily basis so that the same number of shares go back to the original seller at the end of the day and net position of each brokers remains nil. The Investigation reports alleges that this manipulative trading operation was planned very carefully to avoid any easy detection. Instead of engaging in circular trading on daily basis Noticee traded on a particular time and quantity basis which helped to create artificial volume in the market. Adjudication Order in respect of Sunil Kumar Purohit in the matter of K.Sera Sera Production v. . It is alleged that the above actions were for the purpose of manipulating the price of the scrip and distorting the market equilibrium and amounts to violation of Regulation 4(1) & 4(2(a) and of PFUTP Regulations ” 8. In accordance with the aforesaid order of Hon’ble SAT dated March 7 2016 and the consequent appointment of the undersigned as AO a copy of SCN dated May 14 2008 along with the annexures was forwarded to Noticee vide letter dated July 09 2021 and it was duly served on Noticee. 9. Noticee vide his letter dated July 20 2021 inter alia sought original trade log and order log in the scrip of K. Sera Sera for the investigation period and appointed Mr. Vikas Bengani Advocate as his authorized representative herein after referred to as “AR”) to represent in the matter and sought inspection of documents relied upon in the said matter. The request of Noticee for inspection of documents was acceded to and Noticee carried out the inspection of documents on September 06 2021. During the course of inspection of documents Noticee requested for trade log and order log data relating to the trades of Noticee in the scrip of K. Sera Sera and also provided a copy of order of Hon’ble SAT dated March 23 2010 in the matter of Mr. Adolf Pinto v s. Adjudicating Officer of SEBI v s. SEBI dated June 15 2010 Dhirajbhai V. Sanghvi HUF and Ors. v s. SEBI(SAT Appeal No. 414 of 2018) dated February 19 2020 Adolf Pinto vs. SEBI(SAT Appeal No. 110 of 2009) dated March 23 2010 f. The communication dated July 09 2021 has been issued after an inordinate delay of more than 5 years from the date of passing of the Order dated March 07 2016 by the Hon’ble Tribunal. In the said Order the Hon’ble Tribunal had not given any liberty to SEBI that Adjudication Order in respect of Sunil Kumar Purohit in the matter of K.Sera Sera Production SEBI may issue the Notice of hearing communication after a delay of 5 years. This highly prejudices the case of the Noticee as justice delayed is justice denied. Recently the Hon’ble Supreme Court of India and the Hon’ble Tribunal took a tough stand against inordinate delay and latches in quasi judicial proceedings. To support its contention Noticee has submitted the judgements of Hon’ble Supreme Court in the matter of Adjudicating Officer SEBI v s. Bhavesh Pabari( Civil Appeal no. 11311 of 2013) Hon’ble SAT order in the matter of Mr. Ashok Rupani Ors. V s. SEBI dated August 22 2019 Devendra Suresh Gupta v s. SEBIdated August 14 2020 Rajeev Bhanot & Ors. Vs. SEBI dated July 09 2021 Ashlesj Gunvanbhai Shah V s. SEBI dated January 31 2020 etc. g. Noticee has denied that he had never opened trading accounts with Vijay Bhagwandas & Company and Sanchay Fincom Ltd. In the year 2015 he came to know about passing of several orders against him accordingly he had lodged a Police complaint before Senior Inspector MRA Marg Police Station against the Brokers h. Noticee has quoted the Adjudication Order passed by SEBI in the Adjudication Order IVD ID6 KSera I VB AO DRK ASG EAD 3 318 16 2012 in the matter of M s. Vijay Bhagwandas & Co. dated May 17 2012 and Adjudicating Order dated June 30 2021 passed against him etc. i. Noticee requested to dispose of the SCN without passing any adverse Adjudication Order in respect of Sunil Kumar Purohit in the matter of K.Sera Sera Production CONSIDERATION OF ISSUES AND FINDINGS: 12. I have carefully perused the charges levelled against Noticee filed by Noticee and other documents evidence available on record. The issues that arise for consideration in the present case are: 1) Whether Noticee has violated Regulations 4(1) 4(2) (b) and of 2) Does the violation if any attract monetary penalty under Section 15HA of 3) If the answer to issue no. 2 is in affirmative then what should be the PFUTP Regulations the SEBI Act quantum of monetary penalty which are reproduced as under: PFUTP Regulations 13. Before moving forward it is pertinent to refer to the relevant provision of the PIT Regulations which was in force at the time of impugned transactions 4. Prohibition of manipulative fraudulent and unfair trade practicesWithout prejudice to the provisions of regulation 3 no person shall indulge in a fraudulent or an unfair trade practice in securities. 2) Dealing in securities shall be deemed to be a fraudulent or an unfair practice if it involves: a. Indulging in an act which creates false or misleading appearance of trading in the securities market b. Dealing in a security not intended to effect transfer of beneficial ownership but intended to operate only as a device to inflate depress or cause fluctuations in the price of such security for wrongful gain or avoidance of loss Adjudication Order in respect of Sunil Kumar Purohit in the matter of K.Sera Sera Production g. Entering into a transaction in securities without intention of performing it or without intention of change of ownership of such of PFUTP Regulations ISSUE NO.1 Whether Noticee has violated Regulation 4(1) 4(2)(b) and14. It has been alleged in SCN that few members and their clients including Noticee accounted for a large percentage of the total traded volumes in the scrip and majority of the trades were synchronized in nature. Further it was alleged in SCN that the pattern of circular trading was observed wherein a group of brokers and same number of shares were rotated in a circular manner among brokers in the group on daily basis so that the same number of shares go back to original seller at the end of the day and net position of each brokers remains nil. The manipulative trading operation was planned very carefully to avoid any easy detection. Instead of engaging in circular trading on daily basis Noticee traded on a particular time and quantity basis which helped to create artificial volume in the market. 15. Noticee in his reply has contended that he has not been provided the original trade log and order log which contain the details of the alleged trades by Noticee in the scrip of K. Sera Sera. 16. From the documents available on record I note that in his replies dated July 20 2021 and September 06 2021 Noticee had inter alia sought copies of trade log and order log. I note that the impugned SCN contained annexures viz. Investigation Report Board of directors of K. Sera Sera shareholding pattern as on June 30 2004 & September 30 2004 corporate announcements Price Volume data chart Annexures G H & I which depict circular trading on various dates. However there is no mention of trade log or order log w.r.t Noticee’s trades in the list of Annexures. Adjudication Order in respect of Sunil Kumar Purohit in the matter of K.Sera Sera Production 17. In this context Noticee has referred to the judgement of Hon’ble SAT dated March 23 2010 stating that Hon’ble SAT had already discarded the charts i.e. G H and I enclosed with the SCN in the appeal filed by Mr. Adolf Pinto and others entities. On perusal of the aforesaid order dated March 23 2010 of Hon’ble SAT I note that Hon’ble SAT had dismissed seven appeals i.e. Appeals no.110 to 112 148 217 226 of 2009 and 11 of 2010 in the matter. The aforesaid appeals filed by the entities are as under: Appeal No. 1109 1109 1109 1409 2109 2209 11of 2010 Name of entity Mr. Adolf Pinto Ms. Gillian Pinto Kenneth Pinto M s. Galaxy Broking Ltd. Mr. Kapil Bhuptani M s.Sanchay Fincom Ltd. M s. Vijay Bhagwandas &Co. 18. In this regard I note that original trade log and order log pertaining to Noticee’s transactions in the scrip of K. Sera Sera are not available on record. Therefore efforts were made to obtain the relevant trade log and order log from BSE. BSE vide its email dated October 26 2021 informed that the data prior to year 2006 was not available in their system. I note that while the impugned synchronized trades and circular trades took place in 2004 a copy of the trade and order logs for the relevant period could not be obtained from BSE. 19. While I note that few members and their clients including Noticee have been alleged to have created artificial volume through circular and synchronized trades from the material available on record I find that no details of any connection amongst the entities have been established on record. 20. In his submissions Noticee has further stated that in absence of the trade log and order log he is unable to file legal and cogent submission on merit of the Adjudication Order in respect of Sunil Kumar Purohit in the matter of K.Sera Sera Production case. I find that in absence of trade log and order log it is not possible to comment on the accuracy of the data which forms the basis of the charge of synchronized and circular trades amounting to violations of PFTUP Regulations by Noticee as alleged in the SCN. I also find that in absence of trade log and order log with respect to Noticee’s trades the accuracy of the data as specified in Annexures G H and I of the SCN which depict the circular trading pattern of Noticee cannot be established and therefore the aforesaid Annexures G H and I would not be reliable proof of the charge that the trades executed by Noticee were circular synchronised in nature. 21. In this context it is pertinent to note that Hon’ble SAT while disposing off the aforesaid appeals vide its order dated March 23 2010 held that “It appears to us that the basic data now placed before us is not the trade and order logs and the details given therein have been collected from different sources and collated in the form of charts. The error pointed out by the appellants could have crept in at the time of putting details in the form of charts. Another grievances of the appellants is that they had never been furnished with copies of the trade and order logs from which it could be established whether the trades executed by them were circular in nature.” 22. I note that the aforementioned appeals disposed of by the Hon’ble SAT vide its order dated March 23 2010 pertain to the same investigation carried out by SEBI in the scrip of K. Sera Sera as that in the instant proceeding. I note that the Hon’ble SAT in its aforesaid order dated March 23 2010 while remanding back the matter to the adjudicating officer held that there was an error in the Annexures G H and I of the SCN and the relevant trade log and order log in the matter should be provided to the appellants. 23. Considering the fact that impugned trade log and order log are not available on record I find it difficult to ascertain basic trading details of Noticee like no. of shares traded traded price date of trades order time counterparty order time counter party details etc.as well as the trading pattern of Noticee so as Adjudication Order in respect of Sunil Kumar Purohit in the matter of K.Sera Sera Production to come to a conclusion regarding the creation of artificial volume through circular synchronized trades in the scrip of K. Sera Sera by Noticee as alleged in the SCN. Further I note that in the order of Learned Adjudicating Officer bearing reference number MC ST 2021 22 12406 dated June 30 2021 wherein learned AO has disposed of the matter on the grounds that allegation could not be established due to absence of trade log trade data. 24. Therefore in absence of relevant trade log and order log and considering the error in the data provided in the SCN and also placing reliance on aforesaid judgement dated March 23 2010 of Hon’ble SAT as well the aforesaid Adjudication Order dated June 30 2021 I find that the allegation against Noticee that he has violated Regulations 4(1) 4(2)(b) andof PFUTP Regulations cannot be established. 25. As the alleged violations by the Noticee are not established Issues II and III do not merit consideration. 26. In view of the findings noted in the preceding paragraphs the adjudication initiated against Noticee vide SCN bearing Ref. No. A&E BS ASG 125626 2008 dated May 14 2008 are disposed of. 27. Copy of this Adjudication Order is being sent to Noticee and also to SEBI in terms of Rule 6 of the Adjudication Rules. Place: Mumbai SOMA MAJUMDER Date: February 18 2022 ADJUDICATING OFFICER Adjudication Order in respect of Sunil Kumar Purohit in the matter of K.Sera Sera Production

Decree or order obtained by playing fraud on the court, tribunal or authority is a nullity in the eye of the law: High Court of Delhi

Decree or order obtained by playing fraud on the court, tribunal or authority is a nullity and non est in the eye of the law. Such a judgment, decree or order by the first court or by the final court has to be treated as nullity by every court, superior or inferior. It can be challenged in any court, at any time, in appeal, revision, writ or even in collateral proceedings and the same was upheld by High Court of Delhi through the learned bench led by Justice Prathiba M. Singh in the case of NARESH KHER vs. S JAGJIT SINGH & ORS. [CM APPL.10276/2019] on 03.02.2022. The facts of the case are that the suit property was claimed to have been allotted by the DDA in favour of one Mrs. Narmada Devi (Respondent) who along with her son, Mr. Deepak Varshney entered into multiple agreements of sale deeds in respect of the same suit property. The said owner has collected huge sums of money from the persons with whom agreements were entered into. Mr. Jagjit Singh claimed that he had an agreement to sell and purchase in respect of the suit property. However, no documents in respect thereof were disclosed to the Police. Criminal complaints were filed against Mrs. Narmada Devi and her son. They were arrested and remained in custody for more than four years and was given bail thereafter. The petitioner’s counsel submitted that the entire decree was obtained by fraud inasmuch as at no point in time was the Court informed about any of the other agreements subsequently executed with the other parties and neither was the information about the suit filed by Mr. Jagjit Singh disclosed to the other parties. It was further submitted that Mr. Jagjit Singh has made a deliberate effort to conceal the proceedings filed by him seeking specific performance. The respondent’s counsel submitted that a third-party purchaser who may have purchased the suit property during the pendency of existing litigation does not have any locus to file objections. According to facts and circumstances of the cases, Court held that all parties to the case shall maintain the status quo in respect of title and possession of the suit property and shall not create any third-party interest in the suit property. The Court observed that, “decree or order obtained by playing fraud on the court, tribunal or authority is a nullity and non est in the eye of the law. Such a judgment, decree or order by the first court or by the final court has to be treated as nullity by every court, superior or inferior. It can be challenged in any court, at any time, in appeal, revision, writ or even in collateral proceedings”.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 3rd February 2022 EX.F.A. 5 2019 & CM APPL.10276 2019 NARESH KHER Appellant Through: Mr. Anunaya Mehta & Mr. Vinayak Thakur Advocates. S JAGJIT SINGH & ORS. Respondents Through: Mr. Rajat Aneja and Ms. Sagrika Wadhwa Advocates for R 1. Mr. Ujjwal Jha & Mr. Rohan Gupta Advocates for Mr. Mahesh Verma. JUSTICE PRATHIBA M. SINGH Prathiba M. Singh J.1. This hearing has been done through video conferencing. 2. The present execution first appeal challenges the impugned order dated 18th December 2018 passed by the Executing Court in Ex. No.2298 2016 titled S. Jagjit Singh v. Narbada Devi by which objections filed by the Appellant herein Mr. Naresh Kher have been rejected. 3. This appeal relates to property bearing Flat No.169 Category III Munirka Vihar JNU New DelhiThe suit property is claimed to have been allotted by the DDA in favour of one Mrs. Narmada Devi Respondent No.2 who along with her son Mr. Deepak Varshney have entered into multiple agreements to sell sale deeds in respect of the same suit property. The said owner has collected huge sums of money from the following persons with whom agreements were entered into: a) Agreement to sell dated 26th June 2009 and sale deed dated 10th May 2016 is claimed to have been executed in favour of Mr. Jagjit Singh Respondent No.1 Agreement to sell dated 16th April 2009 and Sale Deed dated 3rd March 2010 is stated to have been executed in favour of one Mr. Kanahiya Lal Kewal Parmani Respondent No.3 hereinafter “Mr. Kanahiya Lal Kewal Parmani”) wherein the sale consideration is mentioned as Rs.18.80 lakhs c) Sale deed dated 27th November 2009 executed in favour of Mr. Mahesh Verma and his wife who paid a consideration of Rs. 60 lakhs d) Agreement to sell with Mr. Naresh Kher executed on 1st 2nd July 2012. The consideration as per the said agreement was Rs.1.55 crores out of which Rs.1 05 50 000 is stated to have been paid to Mrs. Narmada Devi. This payment is also stated to include a loan in Allahabad Bank to the tune of EX.F.A. 5 2019 Rs.65.50 lakhs cleared by Mr. Naresh Kher on behalf of Mrs. Narmada Devi by way of RTGS. The remaining amount is stated to have been paid in the form of a cheque for Rs.4 lakhs with Rs.36 lakhs being paid in cash. Mr. Naresh Kher was handed over the documents to the suit property by Mrs. Narmada Devi and given possession of the suit property on 4th July 2012 by Mrs. Narmada Devi and her son. ii) There are various proceedings pending in respect of this suit CS(OS) 1608 2014 titled Naresh Kher v. Narmada Devi Ors. filed by Mr. Naresh Kher CS(OS) 3329 2014 titled Mahesh Verma & Anr. v. Naresh Kher & Ors. filed by Mr. Mahesh Verma. Both these suits are pending before the Original Side of this Court. In CS(OS) 1608 2014 vide order dated 26th May 2014 status quo was granted qua title and possession of the suit Apart from these two suits there are criminal complaints filed against Mrs. Narmada Devi and her son. Mrs. Narmada Devi was also arrested and is stated to have remained in custody for more than four years and was given bail thereafter. Notably in the said criminal proceedings a charge sheet was initially filed on 27th August 2012 and a supplementary charge sheet was filed on 28th May 2014. In the supplementary charge sheet it is clearly recorded that the Police had also conducted enquiries with Respondent No.1 Mr. Jagjit EX.F.A. 5 2019 Singh who claimed that he had an agreement to sell and purchase dated 26th June 2009 in respect of the suit property. However no documents in respect thereof were disclosed to the Police. Mr. Jagjit Singh also did not disclose that a suit had been filed by him being CS No.264 15 titled Sh. Jagjit Singh v. Smt. Narmada Devi & Anr. in which he had sought specific performance of the said agreement to sell. Thus Mr. Jagjit Singh prima facie appears to have kept the Police as also the other parties in the dark about the proceedings which he had filed. A perusal of the order dated 29th July 2015 shows that in the suit filed by Mr. Jagjit Singh being CS No.264 15 Mrs. Narmada Devi initially filed her written statement claiming that the agreement to sell was forged and fabricated. However she stopped appearing thereafter. Mr. Kanahiya Lal Kewal Parmani was also a party in the said suit. However both Mrs. Narmada Devi & Mr. Kanahiya Lal Kewal Parmani were proceeded ex parte and an ex parte decree was passed on 29th July 2015. The execution proceedings which are being presently considered arise out of the said decree. In the execution proceedings seeking to execute the decree dated 29th July 2015 in favour of Mr. Jagjit Singh a bailiff was appointed and on 6th June 2016 the bailiff visited the suit property for breaking open the locks. Mr. Naresh Kher’s son is stated to have reached the premises immediately informing the bailiff that the suit property could not be locked as Mr. Naresh Kher had a status quo order in his favour in effect protecting his possession to the suit property. Parallelly Mr. Naresh Kher also moved an application before the Executing Court to inform the Court of the suit filed by him and the fact that he had a status quo order dated 26th May 2014 passed by the EX.F.A. 5 2019 High Court in his favour. The said application was taken up by the Executing Court at 2:50 p.m. on 6th June 2016 and the order dated 18th May 2016 issuing warrants of possession and appointing the bailiff was recalled. However by then the lock had been already put on the suit property by the bailiff and the keys are admittedly now in the possession of Mr. Jagjit Singh. The said order dated 6th June 2016 reads as under: ““File taken up today on an application under Order XXI Rule 35 & 99 of the Code of Civil Procedure 1908 moved on behalf of the objector Present Sh. Anynaya Mehta counsel for the objector. Learned counsel for the objector has filed an application under Order XXI Rule 35 & 99 of the Code of Civil Procedure 1908 objecting to the issuance of warrant of possession in favour of the decree holder and directions given to the bailiff vide order dated 18.05.2016 to break open the locks of property bearing No.169 Munirka Vihar 2nd and 3rd Duplex. The present objections have been filed by the counsel for the applicant without any power of attorney vakalatnama) since the applicant is stated to be in US as on today. Learned counsel submits that since there was an emergency as a result of the warrants of possession being executed today by the bailiff he was constrained to file the present objection without the vakalatnama. However he has appended his own affidavit in support of the averments made in the filed a memo of petition and also Learned counsel contends that he is in possession of the suit property in his independent right as purchaser from the original owner Ms. Narmada Devi. He further submits that he has already filed a suit for specific EX.F.A. 5 2019 performance which was earlier filed before the Hon ble Delhi High Court but now stands transferred to Patiala House Courts against Ms. Narmada Devi who is also the judgment debtor in the present execution petition. Learned counsel has brought the attention of the court to the order dated 26.05.2014 passed by Hon ble High Court vide which the Hon ble High Court had directed the defendant No.1 to 5 to maintain status quo with respect to the title and possession of the property bearing Flat No.169 Second and Third Duplex Munirka Vihar New Delhi. Learned counsel has also drawn the attention of this court to the letter dated 23.01.2013 addressed by Sh. Praveen Tomar Patwari Tehsil Vasant Vihar to the SHO P.S. Vasant Vihar wherein it has been mentioned that the possession of the flat No.169 Munirka Vihar has been handed over to Naresh Kher who is the Consequently Learned counsel prays directions issued to the bailiff be stayed immediately as the bailiff has already initiated the process of handing over the possession to the decree holder. In view of the above warrants of possession which were directed to be issued vide order dated 18.05.2016 are recalled. Notice of this application be issued to the decree holder on filing of PF returnable on the date already fixed i.e. 02.07.2016. Naib Nazir is directed to issue Robkar in this regard. Copy of this order be given dasti to Learned counsel for the Objector.” Subsequently on 18th December 2018 the Executing Court dismissed the objections of Mr. Naresh Kher since the agreement to sell with Mr. Naresh Kher had been executed during the pendency of the suit proceedings filed by Mr. Jagjit Singh. The operative portion of the said EX.F.A. 5 2019 order reads as under: It can be culled up from above preposition of law that decree holder has to satisfy the Court that the property was purchased during the pendency of suit. In the present case the suit under execution was instituted on 27.07.2010 and it was categorically observed in para no. 4 of the judgment that defendant no. 1 Smt. Narbada Devi stopped appearing and was proceeded ex parte vide order dated 01.06.2011 and defendant no. 2 therein did not appear despite service through publication in newspaper “The Statesman” in newspaper dated 18.11.2014 and was proceeded ex parte vide order dated 24.11.2014. It appears from the above that Smt. Narbada Devi was aware of the pendency of the suit and litigation against her. The objector applicant took place in July 2012 i.e. during the pendency of facts and the suit. In circumstances the doctrine of lis pendens will apply to the transactions which were executed during the pendency of the suit as the objector applicant could not be said to be stranger as he is claiming right title and interest through the defendant JD herein against whom the suit titled as S. Jagjit Singh vs. Smt. Narbada Devi ors was pending. So in these premises application moved by the objector applicant is rejected. However in case the objector applicant succeed in the suit which has already been preferred and pending in the court of law with regard to subject property he can take appropriate proceedings and apply for restitution in accordance with law. the aforesaid reasons the application This order is under challenge in the present appeal. The counsels for the parties have made some submissions today. Mr. Mehta ld. counsel appearing on behalf of Mr. Naresh Kher submits that the EX.F.A. 5 2019 entire decree dated 29th July 2015 was obtained by fraud inasmuch as at no point in time was the Court informed about any of the other agreements subsequently executed with the other parties and neither was the information about the suit filed by Mr. Jagjit Singh disclosed to the other parties. 10. Mr. Jha ld. Counsel appearing for Mr. Mahesh Verma submits that in the supplementary charge sheet Mr. Jagjit Singh has made a deliberate effort to conceal the proceedings filed by him seeking specific performance being CS No.264 15. 11. Mr. Rajat Aneja ld. Counsel for Mr. Jagjit Singh however submits that a third party purchaser who may have purchased the suit property during the pendency of existing litigation would not have any locus to file objections. He relies upon the judgment of the Supreme Court in Usha Sinha v. Dina Ram & Ors. 7 SCC 144. 12. Having heard the ld. counsels for the parties and having perused the records this Court is of the prima facie opinion that permitting the execution of the decree dated 29th July 2015 in this manner when there are other proceedings pending in respect of the same suit property and that too in violation of the status quo order dated 25th May 2014 in favour of Mr. Naresh Kher would not be permissible. It is evident from a perusal of the record especially the supplementary chargesheet dated 28th May 2014 that Mr. Jagjit Singh has cleverly concealed the suit filed by him. In the supplementary charge sheet the following is recorded by the Police: “3) श्री जगजीत स िंह S o श्री बलवीर स िंह R o 524 DDA Flats Tagore Garden New Delhi के ाथ श्रीमती नममदा देवी W o Late Sh. कमल कुमार द्वारा EX.F.A. 5 2019 26.06.2009 को Flat No. 169 Munirka Vihar का Agreement to Sell & Purchase 20 लाख रूपए में सकया सज े करीब 7.5 लाख रूपए Cheque े और करीब 9.5 लाख रूपए Cash प्राप्त करना बतलाया गया है| श्री जगजीत स िंह के द्वारा कोई कागज़ात प्रस्तुत नहीिं सकए गए|” In view of these facts this Court notes that the question as to who would be the legally entitled owner in respect of this suit property would have to be adjudicated in the two suits which are pending before the Delhi High Court being CS(OS) 1608 2014 and CS(OS) 3329 2014. The fact that Mrs. Narmada Devi & Mr. Kanahiya Lal Kewal Parmani chose not to contest the suit filed by Mr. Jagjit Singh and Mr. Jagjit Singh also failed to disclose in the said suit that subsequent agreements have been entered into with regard to the same suit property makes the entire proceedings in the suit of Mr. Jagjit Singh quite suspect. It also points to the fact that while the decree was passed the Court was not aware of the various facts which had already transpired by the date of the decree i.e. 29th July 2015 such as the other agreements executed by the owner the amount of consideration received by her the other orders passed by the Original Side of this Court in the two suits etc. Even if Mr. Jagjit Singh himself had disclosed at any point in time either during the criminal proceedings in 2012 2014 which was clearly subsequent to the institution of the said suit i.e. subsequent to 27th July 2010 or disclosed the execution of subsequent agreements in any other manner the decree dated 29th July 2015 may not have been passed by the Trial Court. It clearly appears to the Court that the original owner has made multiple sales of the same suit property and has collected a huge amount of money of approximately Rs.2 crores in a fraudulent manner defrauding EX.F.A. 5 2019 multiple parties. The Executing Court cannot obviously turn a blind eye to such a maze of facts which has resulted in multiple persons being granted rights in respect of the same suit property. It is also well established that a decree obtained by fraud is a nullity and can be challenged even before the Executing Court. In A.V. Papayya Sastry & Ors. v. Government of A.P. & Ors. 2007 V AD21 the Supreme Court held as below: “21. Now it is well settled principle of law that if any judgment or order is obtained by fraud it cannot be said to be a judgment or order in law. Before three centuries Chief Justice Edward Coke “Fraud avoids all judicial acts ecclesiastical or 22. It is thus settled proposition of law that a judgment decree or order obtained by playing fraud on the court tribunal or authority is a nullity and non est in the eye of the law. Such a judgment decree or order by the first court or by the final court has to be treated as nullity by every court superior or inferior. It can be challenged in any court at any time in appeal revision writ or even in collateral proceedings. 26. Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the loss of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts whether in rem or in personam. The principle of finality of litigation" cannot be stretched to the extent of an absurdity that it can be utilised as an engine of oppression by dishonest and fraudulent EX.F.A. 5 2019 15. This position was reiterated by the Supreme Court most recently in Smriti Madan Kansagra v. Perry Kansagra or Execution Case 36271 of 2015 titled Jagjit Singh v. Narbada Devi & Ors. be also requisitioned from the Court of Ld. ADJ 03 South District Saket Courts New Delhi if not already on record iii) The electronic records of CS(OS) 1608 2014 titled Naresh Kher v. Narmada Devi & Ors. and CS(OS) 3329 2014 titled Mahesh Verma & Anr. v. Naresh Kher & Ors. be requisitioned from the Original Side of this Court if not already on record iv) Mr. Jagjit Singh having come in possession of the suit property by virtue of the order dated 18th May 2016 which was recalled by the EX.F.A. 5 2019 Executing Court on 6th June 2016 is directed to deposit the keys of the suit property with the worthy Registrar General of this Court within a period of one week All parties shall maintain the status quo in respect of title and possession of the suit property and shall not create any third party interest in the suit property vi) The Court of Mr. Umesh Kumar Ld. Chief Metropolitan Magistrate Patiala House Courts Delhi shall send a status report to this Court as to the status of the criminal case being Cr Case 8832 of 2012 concerning FIR No.203 2012 titled State v. Deepak Varshney filed at PS Vasant Vihar and vii) The Court of Mr. Chanderjit Singh Ld. Chief Metropolitan Magistrate Patiala House Courts Delhi shall send a status report to this Court as to the status of the criminal case being Cr Case 28021 of 2017 concerning FIR No.115 filed at PS Vasant Vihar. Both the said status reports shall be filed at least one week before the next date of hearing. 18. The legal issues which have been raised in this execution first appeal shall be considered once all the Court records mentioned above are available before this Court. On the next date of hearing Respondent No.2 Mrs. Narmada Devi and Respondent No.3 Mr. Kanahiya Lal Kewal Parmani as also all the other parties shall appear before this Court in person. 19. A copy of this order be communicated to Mrs. Narmada Devi and Mr. Kanahiya Lal Kewal Parmani the respective Metropolitan Magistrates Patiala House Courts Delhi as also through SHO PS Vasant Vihar who can serve the same upon the said two persons. EX.F.A. 5 2019 20. List on 7th April 2022. 21. This shall be treated as a part heard matter. FEBRUARY 3 2022 PRATHIBA M. SINGH EX.F.A. 5 2019

There will be no difference in male or female while considering the anticipatory bail: High Court of Shimla

The accused whether it is a male or female, they have to furnish all conditions and furnish personal bond for having anticipatory bail. This honorable judgement was passed in the case of Ganga Devi Versus State of Himachal Pradesh [Cr.MP(M) No.348 of 2021] by The Hon’ble Mr. Justice Ajay Mohan Goel, Judge. The petitioner filled the petition and approached the Court for the purpose of grant of anticipatory bail, under Sections 363, 366, 376, 120-B, 107 of the Indian Penal Code and Section 06 of the Protection of Children from Sexual Offences Act, registered at Police Station Gohar, District Mandi, H.P. The Learned counsel for the petitioner submits that petitioner had post grant of anticipatory bail duly joined the investigation. The Learned Additional Advocate General, as of now no recovery etc. is to be affected from her. The court opinioned that, “Taking into consideration these facts, this petition is allowed and order dated 23.02.2021, passed in FIR No. 06 of 2021, dated 18.01.2021, under Sections 363, 366, 376, 120-B, 107 of the Indian Penal Code and Section 06 of the Protection of Children from Sexual Offences Act, registered at Police Station Gohar, District Mandi, H.P., is made absolute The conditions for referring to bail was provided as Petitioner shall furnish personal bond in the sum of Rs.25,000/- with one surety in the like amount to the satisfaction of learned Trial Court, within a period of two weeks from today. She shall make herself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application; iii) She shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever. She shall not make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer; and She shall not leave the territory of India without prior permission of the Court.”

Hig h C o urt of H.P on 05 04 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.MP(M) No.3421 Decided on: 05.04.2021 Ganga Devi .…Petitioner. Versus State of Himachal Pradesh …Respondent. Coram The Hon’ble Mr. Justice Ajay Mohan Goel Judge. Whether approved for reporting 1 No For the petitioner : Mr. Subhash Chander Advocate. For the respondent : Mr. Dinesh Thakur Mr. Sanjeev Sood Additional Advocates General with Ms. Divya Sood Mr. Kamal Kant Chandel Deputy Advocates General. ASI Pyare Lal I O Police Station Gohar District Mandi H.P. present in person. Ajay Mohan Goel JudgePetitioner in this case has approached the Court for the purpose of grant of anticipatory bail in FIR No. 021 dated 18.01.2021 under Sections 363 366 376 120 B 107 of the Indian Penal Code and Section 06 of the Protection of Children from Sexual Offences Act registered at Police Station Gohar District Mandi H.P. 1 Whether reporters of the local papers may be allowed to see the judgment Hig h C o urt of H.P on 05 04 HCHP 2 2. Learned counsel for the petitioner submits that petitioner has post grant of anticipatory bail duly joined the investigation. 3. Learned Additional Advocate General on instructions submits that the petitioner has duly joined the investigation and as of now no recovery etc. is to be effected from her. 4. Taking into consideration these facts this petition is allowed and order dated 23.02.2021 passed in FIR No. 021 dated 18.01.2021 under Sections 363 366 376 120 B 107 of the Indian Penal Code and Section 06 of the Protection of Children from Sexual Offences Act registered at Police Station Gohar District Mandi H.P. is made absolute subject to the following conditions: i) Petitioner shall furnish personal bond in the sum of Rs.25 000 with one surety in the like amount to the satisfaction of learned Trial Court within a period of two weeks from today. ii) She shall make herself available for the purpose of interrogation if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so seek exemption from appearance by filing appropriate application iii) She shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever. Hig h C o urt of H.P on 05 04 HCHP 3 iv) She shall not make any inducement threat or promise to any person acquainted with the facts of the case so as to dissuade him her from disclosing such facts to the Court or the Police Officer and v) She shall not leave the territory of India without prior permission of the Court. 5. It is clarified that the findings which have been returned by this Court while deciding this petition are only for the purpose of adjudication of the present bail application and learned trial Court shall not be influenced by any of the findings so returned by this Court in the adjudication of this petition during the trial of the case. It is further clarified that in case the petitioner does not complies with the conditions which have been imposed upon her while granting the present bail the State shall be at liberty to approach this Court for the cancellation of the bail. The petition stands disposed of in the above terms. Copy dasti. Judge April 05 2021

The employer is required to take a decision while considering various aspects before arriving at a conclusion that the employee was unfit for the post: Chhattisgarh High Court

The employer is required to take a decision while considering various aspects before arriving at a conclusion that the employee was unfit for the post has been upheld by the High Court of Chhattisgarh through a single bench led by HON’BLE SHRI JUSTICE SANJAY S. AGARWAL in the case of Chandrika Prasad Patel v. Chhattisgarh State Power Holding Company Limited (Writ Petition Case No. 3757 of 2013). Brief facts of the case are that the petitioner and his brothers, namely, Omprakash Patel and Mani Prakash Patel jointly owned a land at village Pandripani, which was acquired by the respondents Electricity Company under the Rehabilitation Policy of the Government for laying pipeline for 2 x 250 MW Dr. Shyama Prasad Mukherjee Thermal Power Station, Korba. It is pleaded that as per the said Rehabilitation Policy, the family members of owners of the land, whose land was acquired for the public purpose, are entitled for employment in the Industry and in view of the acquisition of the petitioner’s land, an appointment order dated 31.07.2012 was issued appointing the petitioner on the post of Office Assistant Grade-III. The petitioner in accordance with appointment order also submitted the Attestation Form, Declaration Form, affidavit required for Character Verification, Medical Certificate and other necessary documents disclosing the facts regarding pendency of criminal case against him, wherein it was informed by the petitioner specifically that in the year 2000, he was convicted for the crime registered against him by the police station Balco for commission of offence and against the order of conviction, Criminal Appeal is pending before the Hon’ble High Court. But the respondent authorities cancelled the order of appointed on the grounds of misstatement. The court stated that all the material facts have been disclosed by the petitioner therefore, cannot be said that the petitioner in order to get an employment illegally has suppressed any materials to the concerned authorities. The court noted that the purpose of seeking the information is to ascertain the character and antecedents of the candidate so as to assess the suitability for his appointment in a particular post, but such assessment was not made by the respondent authorities before cancellation of petitioner’s appointment. The same has been held in the case of Daya Shankar Yadav vs. Union of India and others and Avtar Singh vs. Union of India and others. In view of this, the court directed to reinstate the petitioner as Office Assistant Grade-III forthwith along with the consequential benefits, if any, as provided under the rules. Judgement Reviewed by- Akshat Jaithlia

1AFRHIGH COURT OF CHHATTISGARH BILASPUR WPS No. 37513Reserved on 13.01.2022Pronounced on 31.01.2022Chandrika Prasad Patel S o Ganpat Lal Patel aged about 32 years resident of village Pandripani P.O. Godhi P.S. Pandripani Korba District KorbaPetitioner Versus 1.Chhattisgarh State Power Holding Company Limited through theDeputy General Manager 2 Raipur(Chhattisgarh)2.Chhattisgarh State Power General Company Limited through the ChiefEngineer Shed No.3 Danganiya Raipur3.The Chief EngineerHasdev Thermal Power Station Chhattisgarh State Power General Company Limited Korbacancelling the appointmentorder of the petitioner and therefore the petitioner has been constrained tofile the instant petition seeking quashment of the alleged order is validly passed 6.Admittedly the land held by the petitioner was acquired by the 4respondent authorities under the Rehabilitation Policy and according to thesaid policy issued by the State Government if the land of the owners wasacquired for the public purpose then in the said eventuality the familymembers of the said land owners would be entitled to get an employment inthe Industry. In view of acquisition of petitioner s land an appointment orderdated 31.07.2012was issued by the respondent authoritiesappointing him as Office Assistant Grade III initially for the period of two yearsin the pay scale and as per the terms and conditions stipulated therein.7.According to condition No.4 of the aforesaid appointment order(Annexure P 2) the petitioner was required to furnish the Attestation Form Declaration Form Affidavits etc. at the time of his joining which are requiredfor ascertaining his character verification with a further stipulation that if hischaracter certificate is not found to be fit for his appointment in the Company then in the said event his appointment would be cancelled forthwith evenwithout issuing a prior notice for it.8.In pursuance of the aforesaid condition the petitioner at the time of hisjoining i.e. 13.08.2012 has submitted the Declaration Form along withaffidavit disclosing the fact with regard to the alleged offence punishable underSections 323 326 read with Section 34 of IPC whereby he was convictedvide judgment dated 25.03.2003 passed by the Additional Sessions Judge Korbain Sessions Trial No. 3500 and also regarding thependency of appeal preferred there against before the High Court which wasregistered as Criminal Appeal No. 4603 “Omkishore Patel & ors. Vs.State of Chhattisgarh”. It thus appears that the petitioner has disclosed allthe necessary information as required at the time of his joining and upon itsdue consideration the respondent authorities vide its order dated 14.08.2012(Annexure P 4) has posted the petitioner as such in the Office ofSuperintending Engineer Korbahowever appears to be issued after six months of his posting calling upon him as towhy his appointment order should not be withdrawn and cancelled forthwith ashe was found to be convicted with regard to the offence punishable under theaforesaid offences. In reply to the said show cause notice it is stated by thepetitioner that he has disclosed all the necessary information as required atthe time of his joining and therefore the alleged notice be dropped. However his appointment order has been cancelled vide order impugned dated07.10.2013owing to his conviction in the alleged crime.10.What is therefore reflected from the aforesaid facts that although thepetitioner was found to be convicted with regard to the offence punishableunder Sections 323 326 read with Section 34 of IPC vide judgment dated25.03.2003 in Sessions Trial No. 3500 and the appeal is pendingagainst it but the petitioner has in fact not suppressed any material fact in thisregard and instead has disclosed all that truthfully before the respondentauthorities. It therefore cannot be said that the petitioner in order to get anemployment illegally has suppressed any materials to the concernedauthorities. Be that as it may the respondent authorities even without arrivingat a conclusion that the petitioner was not a fit person for his appointment onthe post of Office Assistant Grade III yet the order impugned has beenpassed cancelling his appointment. It is however to be observed here thatthe purpose of seeking the information is to ascertain the character andantecedents of the candidate so as to assess the suitability for hisappointment in a particular post but I do not find any such assessment wasmade by the respondent authorities before cancellation of petitioner sappointment.11.In the matter of Daya Shankar Yadav vs. Union of India and others 6reported in14 SCC 103 it was observed by the Supreme Court at para15andwhich are relevant for the purpose read as under : “15.When an employee or a prospective employeedeclares in a verification form answers to the queries relating tocharacter and antecedents the verification thereof can thereforelead to any of the following consequences:(a) If the declarant has answered the questions inthe affirmative and furnished the details of any criminalcasethe employer mayrefuse to offer him employmentif he is found to beunfit having regard to the nature and gravity of theoffence crime in which he was involved(b) On the other hand if the employer finds that thecriminal case disclosed by the declarant related to theoffences which were technical or of a nature that wouldnot affect the declarant s fitness for employment or wherethe declarant had been honourably acquitted andexonerated the employer may ignore the fact that thedeclarant had been prosecuted in a criminal case andproceed to appoint him or continue him in employment.”(c)xxxxxxxxxxxxxxxxxxxxxxxx(d)xxxxxxxxxxxxxxxxxxxxxxxx 12.Similar is the view taken by the Supreme Court in the matter of AvtarSingh vs. Union of India and others reported in AIR 2016 SC 3598 whereinit has been observed at para 22 which reads as under : “22. …..................................... In case the employer cometo the conclusion that suppression is immaterial and even if factswould have been disclosed would not have affected adverselyfitness of an incumbent for reasons to be recorded it has powerto condone the lapse. However while doing so employer has toact prudently on due consideration of nature of post and duties tobe rendered. For higher officials higher posts standard has to bevery high and even slightest false information or suppression mayby itself render a person unsuitable for the post. However samestandard cannot be applied to each and every post. In concludedcriminal cases it has to be seen what has been suppressed ismaterial fact and would have rendered an incumbent unfit forappointment. An employer would be justified in not appointing orif appointed to terminate services of such incumbent on dueconsideration of various aspects. Even if disclosure has beenmade truthfully the employer has the right to consider fitness andwhile doing so effect of conviction and background facts of case nature of offence etc. have to be considered. Even if acquittalhas been made employer may consider nature of offence 7whether acquittal is honourable or giving benefit of doubt ontechnical reasons and decline to appoint a person who is unfit ordubious character. In case employer comes to conclusion thatconviction or ground of acquittal in criminal case would not affectthe fitness for employment incumbent may be appointed orcontinued in service.” 13.In view of the principles laid down in the above mentioned decisions itis thus evident that the employer is required to take a decision whileconsidering various aspects before arriving at a conclusion that the employeewas unfit for the post. However no effort as such was ever made by therespondent authorities before passing a cancellation order of the petitioner. 14.It is to be noted here further that the appeal being Criminal AppealNo.4603 preferred by the petitioner and his brothers against theirconviction for an offence punishable under Sections 323 326 read withSection 34 of IPC has been decided on 10.01.2020 whereby the petitionerand his brothers have been acquitted from the alleged charges as they havefound to be exercised the right of private defence under Section 101 of IPCwith regard to the incident occurred near the field of the petitioner on22.06.2000. The petitioner is therefore not found to be a habitual offender orcould be held to be unfit for his appointment on the post of Office AssistantGrade III.15.In view of the aforesaid background the petition is allowed and therespondent authorities are directed to reinstate the petitioner as OfficeAssistant Grade III forthwith alongwith the consequential benefits if any asprovided under the rules.No order as to costs.Sd JudgeAnjani

Section 10 and 11 of the DTVSV Act is not to be independent of directions: Bombay High Court

When the circulars are issued exercising powers under sections 10 and 11 of DTVSV Act, directions are supposed to aid and smoothen bringing into operation provisions and execution of the actions based thereon. A division bench of SUNIL P. DESHMUKH & ABHAY AHUJA, JJ., while adjudicating the matter in Chandrakant Narayan Patkar v. Union of India; [WRIT PETITION (L) NO.5956 OF 2021], dealt with the issue of Income Tax. The petitioner’s case is that it is a registered charitable trust. It had filed return of income for financial year 2009-10 – assessment year 2010-11, belatedly disclosing income to be ‘Nil’. Subsequently, an intimation/computation sheet purporting to be under section 143(1) of the Income Tax Act, 1961 ( IT Act ) had been received at its end on 22nd December, 2012, determining income of Rs.69,36,357/- and total tax liability to the tune of Rs.19,84,908/- with interest thereon totalling to Rs.31,83,240/-. It has been referred to by the petitioner that while preparing the return of income, audit report in Form No.10B was also prepared but the same remained to be filed along with the return of income. According to petitioner, there have been no reasons coming forth as to why the exemption under section 11 of the Act was disallowed or the adjustments could not have been made in the intimation under section 143(1)(a) of the IT Act. Against aforesaid intimation, the petitioner preferred an appeal with the Commissioner of Income Tax (Appeals)-1, Mumbai ( CIT-A ) in November, 2018. The appeal was dismissed on 31st January, 2020 on the ground of filing of the return belatedly. The learned counsel for the petitioner stated that the scheme of the DTVSV Act covers the Petitioner’s case and the Petitioner had accordingly applied pursuant to the provisions of the DTVSV Act and the rules and submitted Form No.1, giving requisite details referring to that time limit to file appeal before ITAT had not expired and also referring to amount payable under the scheme was Rs. 17,55,984/- and out of which, an amount of Rs. 16,79,770/- had already been paid and as such, net amount payable under the scheme of the DTVSV Act is Rs. 76,240/-. He emphasises that the scheme of the DTVSV Act does not make any distinction in adjustments under the clauses or sub clauses of section 143 of the IT Act. There is no such reference in the enactment.

on 02 07 2021 on 22 03 19. WP(L) 5956 2021.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITIONNO.5956 OF 2021Chandrakant Narayan Patkar .PetitionerCharitable Trust Through its Trustee Vikas Patkar having office at 1st floor Patkar TrustBuilding Narayan Patkar Road Dombivali1(2) Piramal Chambers Lower Parel Mumbai 400 013.Mr. Dharan V. Gandhi Advocate for PetitionerMr. Sham Walve Advocate for Respondents CORAM : SUNIL P. DESHMUKH &ABHAY AHUJA JJ. DATE : 22 JUNE 2021 on 02 07 2021 on 22 03 19. WP(L) 5956 2021.odt JUDGMENT1.Rule. Rule is made returnable forthwith. Heard learnedCounsel appearing for the parties finally by consent.2.The petitioner trust aggrieved by the communication onthe website portal of the Income Tax Department rejecting declarationForm No.1 filed by the petitioner on 30 12 2020 under the Direct TaxVivad Se Vishwas Act 2020and the Direct Vivad Se Vishwas Rules is before us.3.The petitioner’s case is that it is a registered charitabletrust. It had filed return of income for financial year 2009 10 assessment year 2010 11 belatedly disclosing income to be ‘Nil’.Subsequently an intimation computation sheet purporting to be undersection 143(1) of the Income Tax Act 1961had beenreceived at its end on 22nd December 2012 determining income ofRs.69 36 357 and total tax liability to the tune of Rs.19 84 908 withinterest thereon totalling to Rs.31 83 240 . It has been referred to bythe petitioner that while preparing the return of income audit report inForm No.10B was also prepared but the same remained to be filed on 02 07 2021 on 22 03 19. WP(L) 5956 2021.odtalong with the return of income. According to petitioner there havebeen no reasons coming forth as to why the exemption under section11 of the Act was disallowed or the adjustments could not have beenmade in the intimation under section 143(1)(a) of the IT Act.4.Against aforesaid intimation the petitioner preferred anappeal with the Commissioner of Income Tax1 Mumbai( CIT A ) in November 2018.5.The appeal was dismissed on 31st January 2020 on theground of filing of the return belatedly.6.Mr. Dharan Gandhi learned counsel for the Petitionerstates that in the meanwhile the Direct Tax Vivad Se Vishwas Act 2020 had been enactedandenforced for resolution of disputed tax and for the matters connectedtherewith or incidental thereto.7.The learned counsel for Petitioner submits that against theCIT(A) decision dated 31.01.2020 time limit to file appeal is 60 daysunder Section 253(1)(a) of the Income Tax Act 19615956 2021.odtthe Respondent No. 2 CBDT clarifying in answers to questions no.1 20 33 & 29 particularly that where an order has been passed by theCIT(A) and time limit to file appeal to the Income Tax AppellateTribunalhas not expired the Petitioner Appellant is eligibleto opt for DTVSV Scheme. He submits that time limit to file an appealbefore ITAT had not expired on the specified date under DTVSV Act viz 31.01.2020. The Petitioner as such was eligible to file a declaration asreferred to under DTVSV Act and have resolution and settlement of thematter.8.He submits as the scheme of the DTVSV Act covers thePetitioner’s case and the Petitioner had accordingly applied pursuant tothe provisions of the DTVSV Act and the rules and submitted FormNo.1 giving requisite details referring to that time limit to file appealbefore ITAT had not expired and also referring to amount payableunder the scheme was Rs. 17 55 984 and out of which an amount ofRs. 16 79 770 had already been paid and as such net amountpayable under the scheme of the DTVSV Act is Rs. 76 240 .9.The Petitioner became aware on 29.01.2021 that itsdeclaration in Form No. 1 under the DTVSV Act and the rules has beenrejected with following remarks which are re produced hereinbelow : on 02 07 2021 on 22 03 19. WP(L) 5956 2021.odt“As per the CBDT circular no.21 2020 dated04 12 2020 clarification given vide questionno.71 it is seen that appeals filed againstintimation u s. 143(1) of the Act are eligibleunder Vivad Se Vishwas if adjustment has beenmade under sub clausestoof clause(a) of section 143(1) of the Act. In the case ofthe assessee the adjustment has been made byCPC under sub clauseof clauseofsection 143(1) read with explanationtosection 143(1). The application of the assesseetherefore is not eligible under the schemehence the application is rejected.” 10.Mr. Gandhi vehemently submits that rejection ofdeclaration for the reason adjustment has been made U s. 143(a)(ii) isabsolutely digressed from the intention and the purpose underlyingbringing in enactment DTVSV Act and its object. Learned counselparticularly emphasizes that scheme of the DTVSV Act does not makeany distinction in adjustments under the clauses or sub clauses ofsection 143 of the IT Act. There is no such reference in the enactment.However such a distinction is sought to be carved out under thecircular No. 220 dated 04.12.2020 issued with an answer givento a question which goes beyond the provisions of the DTVSV Act. Hesubmits that answer to question no.71 does not have any rationalemuch less any plausible basis. The answer to question No.71 under theclarification having regard to the provisions of the DTVSV Act as amatter of fact intercepts its underlying purpose and object andpurports to bring in classification in appeals which is not intended on 02 07 2021 on 22 03 19. WP(L) 5956 2021.odtunder the enactment. He submits that the Petitioner’s case squarelyfalls within the four corners of the DTVSV scheme and the Petitioner iseligible to have its benefit. The learned counsel refers to affidavit in reply of the revenue and submits that none of the facts are in disputenor the provisions of the enactments. As a matter of fact it can be saidthat there is tacit endorsement to the Petitioner’s case.11.Learned counsel for the Respondents takes us throughprovisions of section 143andof the IT Act and submitsthat while clausestorelate to obvious errors in thereturns and for correction of such errors the scheme may not benecessary to be resorted to.12.Learned Counsel for respondents contends that CBDTcircular no.21 2020 dated 04 12 2020 is binding on respondent no.3.He submits that it is not the case that petitioner’s appeal meets with thecriterion referred to in the answer to question no.71 as petitioner’sappeal against intimation under Section 143(1)(a)(i) oris notcontemplated under the scheme. Thus as per answer to questionno.71 in the circular the petitioner would not be eligible to avail ofbenefit as DTVSV scheme would not apply. He contends that thecircular is issued in exercise of powers pursuant to Sections 10 and 11 on 02 07 2021 on 22 03 19. WP(L) 5956 2021.odtof the DTVSV Act and thus it would not be said that the circular isultra vires the Act. The order rejecting form no.1 is legal and proper.He thus purports to oppose the petition. 13.We deem it appropriate to refer to that the DTVSVenactment has been brought in to provide for resolution of disputedtax and the matters connected therewith and incidental thereto.(i)In aforesaid enactment the term “appellant” has been definedunder section 2(1)(a) as under : “(a) “appellant” means a person in whose case an appeal or a writpetition or special leave petition has been filedeither by him or by the income tax authorityor by both before an appellate forum andsuch appeal or petition is pending as on thespecified datea person in whose case an order has beenpassed by the Assessing Officer or an order hasbeen passed by the Commissionerorthe Income Tax Appellate Tribunal in anappeal or by the High Court in a writ petition on or before the specified date and the timefor filing any appeal or special leave petitionagainst such order by that person has notexpired as on that datea person who has filed his objectionsbefore the Dispute Resolution Panel undersection 144C of the Income tax Act 1961 andthe Dispute Resolution Panel has not issued anydirection on or before the specified datea person in whose case the DisputeResolution Panel has issued direction under on 02 07 2021 on 22 03 19. WP(L) 5956 2021.odtsub sectionof section 144C of the Income tax Act and the Assessing Officer has notpassed any order under sub sectionof thatsection on or before the specified dateIt is also pertinent to refer to section 2(1)(j) defining the term“disputed tax” reading thus : “(j) “disputed tax” in relation to anassessment year or financial year as the casemay be means the income tax includingsurcharge and cesspayable bythe appellant under the provisions of theIncome tax Act 1961 as computedhereunder :in a case where any appeal writ petitionor special leave petition is pending before theappellate forum as on the specified date theamount of tax that is payable by the appellantif such appeal or writ petition or special leavepetition was to be decided against himin a case where an order in appeal or inwrit petition has been passed by the appellateforum on or before the specified date and thetime for filing appeal or special leave petitionagainst such order has not expired as on thatdate the amount of tax payable by theappellant after giving effect to the order sopassed5956 2021.odt(D)in a case where objection filed by theappellant is pending before the DisputedResolution Panel under section 144C of theIncome tax Act as on the specified date theamount of tax payable by the appellant if theDispute Resolution Panel was to confirm thevariation proposed in the draft orderof section 144C of the Income tax Act and the Assessing Officer has notpassed the order under sub sectionofthat section on or before the specified date the amount of tax payable by the appellantas per the assessment order to be passed bythe Assessing Officer under sub sectionSection 9 appears to be an exclusionary provision reading thus : “9. The provisions of this Act shall not applyin respect of tax arrearof section 143or section 144 or section 153A or section153C of the Income tax Act on the basis ofsearch initiated under section 132 or section132A of the Income tax Act if the amount ofdisputed tax exceeds five crorer rupees5956 2021.odt(iii)relating to any undisclosed incomefrom a source located outside India orundisclosed asset located outside India:(iv)relating to an assessment orreassessment made on the basis ofinformation received under an agreementreferred to in section 90 or section 90A of theIncome tax Act if it relates to any taxarrear (c) . .”14.There is no dispute on factual aspects and the reasons forrejection of Petitioner’s Form No. 1 are with reference to answer toquestion No.71. Question No.71 and answer thereto under CBDTcircular bearing no.21 2020 dated 04 12 2020 read thus :“Q.71 Vivad se Vishwas forms do not containa specific option to settle appeal filedagainst intimation u s. 143(1) of the Act.Accordingly please clarify how to settlesuch appeal which is pending as on 31stJan.2020of the Act is eligible under Vivadse Vishwas if adjustment has been madeunder sub clausestoof clauseofsection 143(1) of the Act.” 1 on 02 07 2021 on 22 03 19. WP(L) 5956 2021.odt15.For ready reference the provisions of Section 143(a)(i) toof the IT Act are quoted below: “ Section 143.Where a return hasbeen made under section 139 or inresponse to a notice under sub section(1) of section 142 such return shall beprocessed in the following manner namely:—(a) the total income or loss shall becomputed after making the followingadjustments namely:—any arithmetical error in the returnan incorrect claim if such incorrectclaim is apparent from any information inthe returndisallowance of loss claimed ifreturn of the previous year for which setoff of loss is claimed was furnishedbeyond the due date specified under sub sectionof section 139disallowance of expenditureindicated in the audit report but nottaken into account in computing the totalincome in the returndisallowance of deduction claimedunder sections 10AA 80 IA 80 IAB 80 IB 80 IC 80 ID or section 80 IE if thereturn is furnished beyond the due datespecified under sub sectionof section139 or(vi) addition of income appearing inForm 26AS or Form 16A or Form 16 1 on 02 07 2021 on 22 03 19. WP(L) 5956 2021.odtwhich has not been included incomputing the total income in thereturn:Provided that no such adjustments shall be made unless anintimation is given to the assessee of such adjustments eitherin writing or in electronic mode:Provided further that the response received from theassessee if any shall be considered before making anyadjustment and in a case where no response is receivedwithin thirty days of the issue of such intimation suchadjustments shall be made:][Provided also that noadjustment shall be made under sub clausein relation toa return furnished for the assessment year commencing on orafter the 1st day of April 2018 ](b) ….(c) ….(d) ….(e) ….Provided ….Provided further ….Explanation ….(a) ….(b) ….Plain reading of the aforesaid provisions of Section 143(1)to(vi) would clearly show that total income or loss is to be computed 1 on 02 07 2021 on 22 03 19. WP(L) 5956 2021.odtafter making the adjustments referred to thereunder. Theseadjustments in computing total income appear to be clericaladjustments hardly calling for judicial adjudication of real sort albeitthe proviso does require adherence to the principles of natural justice.The sub clauses refer toarithmetical error in the return anincorrect claim apparent from return disallowance of loss claimedbeyond the due date disallowance of expenditure or increase inincome not taken into account in the computation disallowance ofdeduction(s) claimed if return is furnished beyond the due date and(vi) addition of income appearing in Form 26AS or Form 16A or Form16 which has not been included in the computation.16.During the course of hearing learned Counsel forpetitioner has referred to and relied on a decision of this court in thecase of Macrotech Developers Ltd. Vs. Principal Commisioner ofIncome Tax reported in126 taxmann.com 1wherein it has been observed to the effect that clarifications answersgiven by CBDT in response to certain questions not aligning with thelegislative intent and doing violence to plain language of the statuteand cannot be accepted. He has further relied on the Supreme Courtjudgment in the case of Keshavji Ravji & Co. Etc. Etc. Vs. Commissionerof Income Tax reported in 1990CTR 0123 wherein it has been 1 on 02 07 2021 on 22 03 19. WP(L) 5956 2021.odtconsidered that the Tribunals and Courts are not supposed to interpretlaw in the light of circular. The Supreme Court in the case of UcoBank Vs. Commissioner of Income Tax reported in154 CTR0088 has observed that CBDT circulars may tone down the rigour ofthe law and ensure a fair enforcement of its provisions however thosecannot be adverse to the assessee. The power is for just proper andefficient management of the work and are meant to mitigate the rigourapplication of provisions.17.It may have to be referred to that circulars cannot beissued adverse to the interest of assessee nor those can be issuedcontradicting and nullifying the provisions of the enactment.18.It would be pertinent to refer to that underneath theanswer to question no.71 the circular No. 220 purports tosegregate and classify the appeals against the orders passed underSection 143(1)(a)(i) oras a separate category from the appealsfrom Clausestoof 143(1)(a) of the IT Act.19.The DTVSV enactment does not provide for classificationin appeals with reference to the orders passed by the authority underdifferent provisions. The preamble of the enactment refers to that it 1 on 02 07 2021 on 22 03 19. WP(L) 5956 2021.odtproposes to provide for resolution of disputed tax and the mattersconnected therewith and incidental thereto and defines the term‘appellant’ as aforesaid which embraces the Petitioner and covers thecase the case under clauseinter alia ‘disputed tax’ where an orderin appeal has been passed by the appellate forum and the time limit tofile further appeal writ petition for filing has not expired as referredto under clauseof section 2(1)(j). Further it would be pertinent torefer to that it is not the case of respondents that petitioner’s case fallsin the excluded categories referred to under the provisions of section 9viz clausestonor such a case has been made out in theaffidavit or during submissions. It is also not the case of therespondents that the rules refer to or create classification andcategories in the appeals based on the orders passed with reference tosub clauses under provisions of 143(1)(a) of the IT Act.20.All the adjustments referred to under sub clausestoof Section 143(1) are indication of forming one categoryand as such are grouped under sub clauseof Section 141(1).Classifying the adjustments intoof Clause(a) of Section143(1) to be eligible under the DTVSV Scheme and excluding theadjustments referred to inandunder the circular No. 220without substantiating the same with any rationale or plausible basis or 1 on 02 07 2021 on 22 03 19. WP(L) 5956 2021.odtmaterial therefor would be arbitrary unreasonable and discriminatory.The same would be in breach of Article 14 of Constitution of India andbe liable to be set aside as such. Such a classification sought to bemade would not be fitting into the requirements of intelligibledifferentia having nexus to the object to be achieved. Despite a queryfrom the Court as to the purpose of this classification there was noanswer forthcoming from the Revenue. There does not appear to beany object to be achieved by such an unreasonable and arbitraryclassification leading to discrimination among tax payers whose casesare falling in Clausesoron one hand and those whose cases fallunder Clausestoof Section 143(1)(a) of the IT Act. 21.It is queer on which basis circular purports to excludeappeals arising from the orders passed under section 143(1)(a)(i) or(ii). Neither there is reference to any basis for the same in the circularnor there is any provided in the affidavit in reply. Having regard to theprovisions of the enactments and the rules thereunder in the absenceof any material we are not in a position to appreciate that there isexclusion of appeals arising from orders passed under section 143(1)(a)(i) orof the IT Act. It is not the case that there is any particularobject sought to be achieved by such exclusion of the appeals arisingfrom the orders passed under section143(1)(a)(i) or5956 2021.odt22.In the scenario when the circulars are issued exercisingpowers under sections 10 and 11 of DTVSV Act directions aresupposed to aid and smoothen bringing into operation provisions andexecution of the actions based thereon. The directions circulars wouldnot be issued under such provisions digressing or deviating from theobject and purpose under the scheme of the enactment.23.The situation thus emerges that answer to question No. 71in the circular No. 220 tends overreach the purpose andintendment underlying the provisions of the Act and the Rules andpurports to exclude an otherwise eligible assessee on a ground andreason neither contained in nor reflected from the scheme. Thecircular is manifestly divorced from the object and purpose of DTVSVscheme.24.The answer to question no.71 purporting to excludeappeals against the orders under section 143(1)(a)(i) orisunsustainable and unacceptable. In the circumstances emergingexclusion from the answer to question No. 71 of the circular No. 21 of2020 dated 04.12.2020 is untenable and deserves to be set aside. We therefore set aside Answer to Question No. 71 of Circular No. 2 of 18 on 02 07 2021 on 22 03 19. WP(L) 5956 2021.odt2020 dated 04.12.2020. In view of the same the Petition is allowed interms of prayer clausesandwhich read thus : “(i)That this Hon’ble Court may bepleased to issue a Writ of Certiorari or aWrit in the nature of Certiorari or Writ ofMandamus or a Writ in the nature ofMandamus or any other appropriate Writ Order or direction calling for the records ofthe Petitioner’s case and after going into thelegality and propriety thereof to quash andset aside the action order of the RespondentNo. 3 in rejecting the Application of thePetitioner in Form No. 1 and 2 of the VSVAct and direct the Respondent No. 3 to issueForm No. 3 accepting the said application ofthe Petitioner under the said Act and Rulesthereunder(SUNIL P. DESHMUKH J.) 1

Request to rejoin service after voluntary retirement is not an absolute right : Delhi High Court

Right to withdraw a request is not absolute or unconditional. The Delhi High Court Bench consisting of J. Rajiv Sahai Endlaw and J. Asha Menon, decided upon the matter of Mandeep Singh v. Union of India [W.P. (C) 8937/2020], wherein an ex service prayed to be allowed back into the service after voluntary retirement. The Petitioner joined the Border Security Force (BSF) as an Assistant Commandant in 2010 and was promoted to the post of Deputy Commandant after completing the National Security Guard Commando Course in 2014. Later while the petitioner was posted in Delhi in 2017, he tendered his application for resignation addressed to the President of India in the best interest of his parents and family. The petitioner’s mother had been suffering from Parkinson’s since 2008, wife was posted in Amritsar as Judicial Magistrate and stayed along with her 2 year old child and hence, decided to resign requesting the BSF to accept the same on compassionate ground and asked to be relieved from service as soon as possible. The resignation was accepted and the petitioner relinquished the charge of Deputy Commandant on 30th April, 2018. On 23rd July 2018, the petitioner requested the respondents that he shall be allowed to rejoin service after voluntary retirement as all his domestic problems had be resolved. This request was rejected to which the present petition was filed. As per Rule 26(4)(iii) of the CCS (Pension) Rules, a person is allowed to resume duty as a result of permission to withdraw the resignation if the period of absence from the duty between the date on which the resignation became effective and the date on which the person is allowed to resume duty, is not more than 90 days. The petitioner did send his application within 90 days and argued before the court that hence, he should be allowed to resume service. Th respondents argued that the counsel for the petitioner is misconstruing Rule 26(4)(iii) of the CCS (Pension) Rules as it permits the withdrawal of resignation provided, the period between the date of absenting on the acceptance of resignation and the date of joining on acceptance of the withdrawal of resignation is not more than 90 days; whereas the petitioner was wrongly construing the period of 90 days as the period within which an application for withdrawal of resignation is to be filed. Further that the rule conferred no right and discretion to allow the petitioner to rejoin the service vested with the government.  

IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.8937 2020 Date of decision: 18th December 2020 MANDEEP SINGH Through: Mr. Ankur Chhibber Adv. Petitioner UNION OF INDIA & ORS. Through: Mr. Ruchir Mishra & Mr. Mukesh Respondents Versus Kumar Tiwari Advs. HON BLE MR. JUSTICE RAJIV SAHAI ENDLAW HON BLE MS. JUSTICE ASHA MENON VIA VIDEO CONFERENCING] JUSTICE RAJIV SAHAI ENDLAW The petitioner an Ex Deputy Commandant of the respondents Border Security Forcewho had joined the respondents BSF on 25th January 2010 as directly recruited Assistant Commandant pursuant to the offer dated 18th December 2009 of appointment by respondents BSF has filed this petition impugning the order dated 3rd April 2018 whereby the respondents BSF approved the resignation of the petitioner from the post of Deputy Commandant BSF with effect from 30th April 2018 impugning the orders dated 15th January 2019 and 14th August 2019 whereby the respondents BSF rejected the applications filed by the petitioner after the acceptance of his resignation on 3rd April 2018 for rejoining the respondents BSF as a Deputy Commandant seeking mandamus directing the respondents BSF to consider the case of the petitioner for reinstatement and accept the withdrawal of resignation tendered by the petitioner as the same was compliant of Rule 26(4)(iii) of the CCSW.P.(C) No.8937 2020 Rules 1972 Rules) seeking mandamus directing the respondents BSF to allow the petitioner to rejoin the service and continue his duty in the same capacity as prior to the resignation that is as Deputy Commandant in the respondents BSF. The petition came up first before us on 17th December 2020 when it was the contention of the counsel for the petitioner that since the question entailed in this petition is the same as is being considered by us in W.P.(C) No.3369 2020 titled Dinesh Yadav Vs. Union of India and in other connected petitions and which are listed next on 11th January 2021 notice of this petition be issued and this petition be also taken up on 11th January 2021. The counsel for the respondents BSF also appeared yesterday and also appears today on advance notice. However having gone through the file and having prima facie not found the petitioner to be in the facts of his case entitled to the reliefs as claimed even if the question of law may be the same we asked the counsel for the petitioner to make his arguments. On the request of the counsel for the petitioner the matter was adjourned to today. The case set up by the petitioner in the petition is that the petitioner after joining the respondents BSF on 25th January 2010 as an Assistant Commandant when posted at 182 Bn Samba Jammu underwent the YO‟s Leg 1Course from 31st October 2011 to 24th December 2011 and YO‟s Leg 2Course from 23rd W.P.(C) No.8937 2020 April 2012 to 16th June 2012 and after completion of his National Security GuardCommando Course on 26th April 2014 from 3rd August 2014 was deputed to the NSG and while on which deputation he was promoted as Deputy Commandant the petitioner on 3rd December 2017 while still on deputation with NSG was posted at Hqrs. NSG Mehram Palam New Delhi while the petitioner was posted at New Delhi “his mother was suffering from Parkinson disease since 2008 and was undergoing treatment at PGI Chandigarh and various other hospitals. On the other hand the wife of the Petitioner was posted at Amritsar as Judicial Magistrate staying alongwith her 2 year old child. Therefore in the best interest of his parents and family the Petitioner vide his application dated 03.12.2017 addressed to the President of India tendered his resignation from the post of Deputy Commandant BSF requesting that his resignation be accepted on compassionate ground and he may be relieved from service on or before 28.02.2018” the petitioner vide his letter dated 11th December 2017 also requested the respondents BSF for premature repatriation from NSG to the respondents BSF on the same ground as mentioned in the application dated 3rd December 2017 to the President of India with effect from 31st December 2017 the respondents BSF on 31st December 2017 repatriated the petitioner from NSG to BSF the respondents BSF vide order dated 3rd April 2018 informed the petitioner that the resignation tendered by the petitioner to the President of India had been accepted and in view of the same the name of the petitioner would be struck off from service with effect from 30th April 2018 accordingly the petitioner on 30th April 2018 relinquished the charge of Deputy Commandant 182 Bn “that after the petitioner resolved all his domestic problems which he was W.P.(C) No.8937 2020 facing during the time of his service he gave a second thought to his decision and vide his letter dated 23.07.2018 he requested the Respondents that he shall be allowed to rejoin the service after voluntary retirement as all his domestic problems have been sorted out based on which the Petitioner had tendered his resignation” as per Rule 26(4)(iii) of the CCS Pension) Rules a person is allowed to resume duty as a result of permission to withdraw the resignation if the period of absence from the duty between the date on which the resignation became effective and the date on which the person is allowed to resume duty is not more than 90 days the petitioner sent his application request dated 23rd July 2018 for rejoining within the period of 90 days in terms of the said Rule as he had been relieved from service with effect from 30th April 2018 and the respondents received the application for withdrawal of resignation on 28th July 2018 that is within 90 days the respondents BSF vide their letter dated 7th August 2018 informed the petitioner that his request for the withdrawal of resignation from the post of Deputy Commandant BSF was to be addressed to the President of India and not to the Director General BSF as had been done in the letter dated 23rd July 2018 and asked the petitioner to forward a fresh application the petitioner as per the letter dated 7th August 2018 of the respondents BSF rectified the mistake and vide his letter dated 17th August 2018 submitted a request to rejoin the service after voluntary retirement addressed to the President of India the respondents BSF vide e mail dated 31st August 2018 informed the petitioner that the application dated 17th August 2018 submitted by him was defective and to contact the respondents BSF vide subsequent e mail dated 3rd September 2018 the petitioner was informed that the letter dated 17th August 2018 sent by him W.P.(C) No.8937 2020 was not for withdrawal of resignation as had been submitted by the petitioner but for the withdrawal of voluntary retirement and which was not the case and asked the petitioner to submit a fresh application to the President of India for the withdrawal of resignation yet subsequently a letter dated 7th September 2018 also was sent by the respondents BSF in this regard the petitioner under the cover of his e mail dated 14th September 2018 enclosed an application to the President of India for the withdrawal of resignation the respondents BSF on the same date informed the petitioner that the e mail of the petitioner could not be placed before the President of India and asked the petitioner to send an application for the withdrawal of resignation to the President of India through „dak‟ the petitioner vide his e mail dated 15th September 2018 informed the respondents BSF that he was out of the country and will send the same through „dak‟ by Monday and the same was also being sent through „dak‟ from abroad on 10th November 2018 police verification was conducted qua the petitioner the respondents BSF vide letter dated 15th January 2019 informed the petitioner that his application dated 23rd July 2018 addressed to the President of India was examined by the headquarters as well as by the Ministry of Home Affairsin detail and because of the non fulfilment of conditions stipulated in Rule 26(4)(iii) of CCS Rules his application for the withdrawal of resignation had been rejected by the MHA the petitioner vide his letter dated 30th January 2019 addressed to the Joint Secretary MHA and the Director General BSF requested the respondents BSF to again consider his application on the basis of the performance of the petitioner when in service of the respondents BSF the respondents in response to the letter dated W.P.(C) No.8937 2020 30th January 2019 of the petitioner informed the petitioner vide letter dated 14th August 2019 that his request for withdrawal of resignation had been examined and owing to non fulfilment of conditions stipulated in Rule 26(4)(iii) of CCSRules his request for withdrawal of resignation could not be acceded to the respondents BSF vide letter dated 18th November 2019 asked the petitioner to give a fresh consent willingness to join the respondents BSF the petitioner vide his response dated 19th November 2019 forwarded his consent to the respondents BSF and nothing further was heard from the respondents BSF. Contending that the Policy with respect to withdrawal of resignation is in Department of Personnel & Training Office Memorandumdated 10th June 2019 and that the petitioner satisfies all the criteria conditions laid down therein this petition has been filed. Today the counsel for the petitioner has argued thatthough earlier the policy with respect to withdrawal of resignation was contained in the CCSRules but since coming into force of the new pension scheme from 1st January 2004 the CCSRules had no application and the DoPT vide its OM dated 10th June 2019 has promulgated the Policy for withdrawal of resignation of Government servants of Central Civil Services Posts appointed after 31st December 2003 covered under the National Pension Systemthough the Policy contained in the said OM is the same as earlier contained in Rule 26(4)(iii) of CCS Rules ii) as per the said policy the appointing authority may permit a person to withdraw his resignation if the four conditions as stated therein are satisfied iii) the request of the petitioner for the withdrawal of his resignation has W.P.(C) No.8937 2020 been rejected only referring to Rule 26(4)(iii) of the CCS Rules i.e. of being barred by 90 days the name of the petitioner was struck off from the rolls of respondents BSF on 30th April 2018 and the petitioner vide letter dated 23rd July 2018 applied to rejoin and which was well within 90 days thus the reason given for the rejection of the request is not correct and the petition is entitled to be allowed on this short ground alone the petitioner thus satisfies all the four conditions for being permitted to withdraw the resignation and his request has been illegally declined relying on Rule 26(4)(iii) of the CCSRules though not applicable to the petitioner appointed on 25th January 2010 pursuant to the offer of appointment by respondents BSF dated 18th December 2009 and reliance is placed on Balram Gupta v. Union of India 1987 Supp SCC 228 Union of India v. Wing Commander T. Parthasarathy1 SCC 158 order judgment dated 10th September 2014 of a Co ordinate Bench of this Court in W.P.(C) No.7671 2013 titled Ravi Tomar Vs. Union of India Nirmal Verma Vs. MCD 2005 SCC OnLine Del 381 and Deepak Vs. Union of India 2016 SCC OnLine Del 3817. Per contra the counsel for the respondents BSF appearing on advance notice has argued that no personnel has a right to withdraw the resignation and it is the decision of the Government of India whether to allow any personnel to withdraw his resignation or not both Rule 26(4) of the CCSRules and the Policy contained in OM dated 10th June 2019 entail a question of public interest and it is only when the Government of India thinks that the resignation submitted should be permitted to be withdrawn in public interest that the resignation can be permitted to be W.P.(C) No.8937 2020 withdrawn the counsel for the petitioner is misconstruing Rule 26(4)(iii) of the CCS Rules and the OM dated 10th June 2019 the same permit the withdrawal of resignation provided the period between the date of absenting on the acceptance of resignation and the date of joining on acceptance of the withdrawal of resignation is not more than 90 days the counsel for the petitioner is wrongly construing the period of 90 days as the period within which an application for withdrawal of resignation is to be filed the petitioner in the application dated 17th August 2018 written to the President of India did not withdraw the resignation but was making a request for being permitted to join after voluntary retirement and the said request of the petitioner has already been rejected. 10. The counsel for the petitioner inspite of his contentions aforesaid has been unable to change our prima facie view as expressed yesterday to the counsel for the petitioner. 11. Since it is the case of the petitioner that the petitioner is governed by the OM dated 10th June 2019 we chose to reproduce herein below the relevant part of the OM dated 10th June 2019 herein below: “2. The appointing authority may permit a person to withdraw his resignation in the public interest on the following conditions that the resignation was tendered by the Government Servant for some compelling reasons which did not involve any reflection on his integrity efficiency or conduct and the request for withdrawal of the resignation has been made as a result of a material change in the circumstances which originally compelled him to tender the resignation W.P.(C) No.8937 2020 that during the period intervening between the date on which the resignation became effective and the date from which the request for withdrawal was made the conduct of the person concerned was in no way improper c) that the period of absence from duty between the date on which the resignation became effective and the date on which the person is allowed to resume duty as a result of permission to withdraw the resignation is not more than ninety days that the post which was vacated by the Government servant on the acceptance of his resignation or any other comparable post is available. No withdrawal from NPS corpus shall be permissible within a period of 90 days from the date on which the resignation becomes effective i.e. the resignation is accepted by the competent authority and the Government servant is relieved of his duties. However the aforesaid condition shall not be applicable in case of death of the government servant after the resignation becomes effective. Above guidelines instructions will be applicable only for the Government servants appointed on Central Civil Service Posts after 31.12.2003 who are covered under the National Pension System and for whom CCS Rules 1972 is not applicable. Further there guidelines instructions will be applicable till the time the statutory rules regarding withdrawal of resignation for such Government servants are notified.” 12. We find that though Rule 19 of the Border Security Force Rules 1969 BSF Rules) deals with the resignation by an officer of the respondents BSF before the attainment of the age of retirement there is no provision in the BSF Rules and none has been cited regarding the withdrawal of resignation. However we accept the contention of the counsel for the petitioner not disputed by the counsel for the respondents BSF that with respect to recruits W.P.(C) No.8937 2020 till 31st December 2003 the matter of withdrawal of resignation is governed by Rule 26(4) of the CCS Rules and with respect to the recruits from 1st January 2004 the said matter is governed by the DoPT OM aforesaid. However since the service in Central Armed Police Forces CAPFs) including BSF is materially different from the civil services we strongly recommend to the respondents BSF and the CAPFs in general to consider enacting their own Rule with respect to withdrawal of resignation appropriate apposite to their own requirements. We may mention that neither in the CCSRules nor in the DOPT OM aforesaid is there any requirement of the personnel seeking withdrawal of resignation having the requisite medical fitness and which is of paramount importance in forces. All that can thus be said is that the CCS Pension Rules and the DoPT OM aforesaid are not suitable for application to personnel of CAPFs in the matter of the withdrawal of resignation. However since the counsel for the respondents BSF has not controverted that the same are applicable we proceed to adjudicate within the framework thereof. 13. The essential conditions to be satisfied for being permitted to withdraw resignation are that such withdrawal should be in public interest the resignation should have been tendered for some compelling reason and the request for withdrawal should have been made as a result of a material change in the circumstance which compelled the personnel to tender the resignation the conduct of the personnel in the intervening period should not be improper the period of absence from duty should not be of more than 90 days and the post is still available. W.P.(C) No.8937 2020 14. Though the counsel for the petitioner has sung praises of the petitioner and the yeoman service he rendered to the respondents BSF and to the country including by being selected for the NSG Commando Course and being deputed to NSG but it is not for the personnel of the force to blow his own trumpet and it is for the force with which the said personnel was employed and the Government of India to find the human resource in the personnel to be such as for whom the door needs to be again opened. Obviously in the present case neither did the respondents BSF feel that the resources spent on the training of the petitioner is reason enough to let the petitioner in after he had voluntarily left nor was the Government of India of the said opinion. The petition is also bereft of any pleadings of the public interest which will be served by letting the petitioner withdraw his resignation. Once the said condition is not satisfied the need for seeing whether the other conditions are satisfied by the petitioner or not would not arise. We may otherwise also add that the reigns of the country cannot be entrusted to a personnel who in the past has chosen his own interest over that of the public or the country. The conduct of the petitioner though still having substantial period of deputation with NSG left and which duties as NSG commando according to the counsel for the petitioner also are of paramount importance to the country of having paid scant regard to the same in the face of difficulties of his wife and small child and his mother do not indeed show the petitioner to have put the service before self. 15. The personnel tendering resignation also tend to forget that we are a country of scarcities including scarcities of employment opportunities. Here inviting application for a few hundred posts elicit W.P.(C) No.8937 2020 applications from lakhs. Though we are a country of scarcities we are rich in human resource. Holding competition amongst all the applicants demonstrates a difference of barely a shade between the one last selected and the next in line. Tendering of resignation from employment with the government by one creates vacancy for which hundreds if not lakhs await an opportunity. 16. We during the hearing yesterday as well as today in view of the conditions aforesaid of Rule 26(4) of the CCS Rules and or the DoPT OM enquired from the counsel for the petitioner whether not as disclosed by the first condition the provision of withdrawal of resignation is meant for those who owing to an extreme provocation take a decision to leave the secure employment i.e. employment for which lakhs of citizens strive. We further enquired from the counsel for the petitioner how the averments in the petition as quoted by us hereinabove while recording the pleadings in the petition satisfy the condition of “compelling reasons” for tendering the resignation. We also enquired how the compelling reason of the ailment of the mother of the petitioner and of the child of the petitioner being only two years old resolved themselves between the date the petitioner tendered his resignation i.e. 3rd December 2017 and the date that is 23rd July 2018 on which the petitioner first applied for withdrawal. 17. The counsel for the petitioner not controverting that there are no specific pleadings in this regard has today drawn our attention to the letter dated 23rd July 2020 where also the petitioner is found to have merely stated that he submitted his resignation “due to my domestic problems” and merely pleaded “my domestic problems has been sort out”. The counsel for W.P.(C) No.8937 2020 the petitioner then drew our attention to a letter dated 18th June 2020 sent by the petitioner to the Home Minister of India where the petitioner statedthat his mother had been suffering from Parkinson disease during the time he was with NSG the condition of his mother deteriorated that his wife was a Judicial Magistrate and his brother was living in Australia and there was nobody except him to lookafter the health of the mother that his two and a half years old son and the deteriorated condition of his mother forced him to take a decision to tender the resignation that after his resignation he put all his strength to look after his mother as well as his two and a half years old child and within two and a half months sorted out the problems relating to the treatment of his mother that his brother who lives in Australia took the mother with him and therefore the petitioner could join back the service. 18. What has been stated in the aforesaid letter is much after the rejections dated 15th January 2019 and 14th August 2019 of the applications for the withdrawal of resignation dated 23rd July 2018 and 30th January 2019 respectively. The possibility of the said letters having been written under legal advice after a decision to file the petition in the Court had been taken cannot be ruled out. Moreover again the pleas are vague. 19. Rather when we asked the counsel for the petitioner that if the brother of the petitioner had taken the mother to Australia what was the need for the petitioner to go to Australia it was first denied that the petitioner went to Australia. However on attention being drawn to the e mail dated 15th September 2018 of the petitioner stating that he could not send the letter of withdrawal of resignation to the President of India by „dak‟ owing to being W.P.(C) No.8937 2020 out of the country it is stated that the petitioner went to drop his mother to Australia. However as per the language of the letter aforesaid of 18th June 2020 it is the brother who took the mother. The two and a half years old child to lookafter whom and to be with whom the petitioner claims to have resigned in two and a half months would barely be that much older and still not independent. Similarly the nature of Parkinson disease is such qua which there would be no major change in barely two and a half months. It also defies logic that if the option of the brother of the petitioner in Australia taking the mother of the petitioner with him to Australia was available why was it not exercised or considered before the petitioner resigned. We are afraid the facts pleaded by the petitioner do not satisfy the requirement of „reasons compelling enough‟ tender resignation from a secure employment or a material change as required by the aforesaid DoPT OM. In our view tendering and acceptance of resignation from secure employment has an element of finality and irrevocability thereto. The provision for withdrawal of resignation has been made to take care of resignations submitted under a grave and sudden provocation which compels the government employee to forego the security of employment and which grave and sudden provocation was at that moment wrongly assessed of having a permanency and which did not turn out to be so. 21. On the contrary the entire conduct of the petitioner shows that the decision of the petitioner was a well thought out one. The petitioner submitted the letter of resignation on 3rd December 2017 when posted at Delhi which is envisaged as a preferred posting and not when posted in a hard area. The petitioner did not in the letter dated 3rd December 2017 seek W.P.(C) No.8937 2020 discharge immediately but on or before 28th February 2018. The petitioner after nearly 10 days on 11th December 2017 in anticipation of his resignation being accepted sought repatriation from NSG to respondents BSF. The petitioner was not discharged on 28th February 2018 as had been sought by him and waited patiently till the acceptance letter dated 3rd April 2018. A period of four months elapsed between the letter of resignation and discharge and the petitioner during the said time did not change his mind. It is thus not a case of the resignation being owed to any gravity or suddenness but of a well planned out resignation. 22. Not only so the petitioner though wrote a letter dated 23rd July 2018 delivered on 28th July 2018 that is barely a couple of days prior to the expiry of 90 days purportedly withdrawing the resignation but addressed it not to the President of India to whom the letter of resignation was addressed but to the Director General BSF. Not only so though the petitioner sought to withdraw his letter dated 3rd December 2017 but the letter dated 23rd July 2018 was on the subject of “joining after voluntarily retirement”. The petitioner who had written to the President of India knowing fully well that the resignation had to be addressed to the President of India and who being an ex Deputy Commandant BSF is expected to know the difference between resignation and voluntary retirement had in December 2017 tendered resignation and not sought voluntary retirement but labeled the letter dated 23rd July 2018 as “joining after voluntary retirement”. We have enquired from the counsel for the petitioner why should all this not be seen as having been done by design so as to not be asked to immediately rejoin service and to buy time. There is neither any explanation for the aforesaid in the petition W.P.(C) No.8937 2020 nor during the hearing. Moreover if the petitioner indeed expected any action on his letter dated 23rd July 2018 he would not have after submitting the same proceeded to go abroad as he as per his own documents did. Moreover the said dates also belie what was argued that the petitioner had gone to Australia to leave his mother. That means that till the letter dated 23rd July 2018 was written the mother was still in India. The petitioner in the letter dated 23rd July 2018 did not say that the date of his rejoining should be after he returned from abroad. 23. All the aforesaid facts do not make us believe the case set up by the petitioner even of the disease of his mother or of his small child and no documents in support whereof in any case have been submitted. 24. The petitioner appears to be using the employment of respondents BSF as a hop on and hop off service wherefrom he can hop off whenever he desires and hope back on whenever he wishes. 25. That brings us to the Rule Policy so far as the aspect of 90 days is concerned. Undoubtedly a literal interpretation thereof is that the period of absence from duty should not be more than 90 days. It is because such a short period is stipulated that we are of the opinion that the withdrawal of resignation is permitted when found to have been submitted in a huff and we therefore have used the expression „grave and sudden provocation‟. Else normally no material change in circumstances can be expected within a short time envisaged. It cannot also be forgotten that the short time envisaged also takes into its ambit the decision making time in the grant of permission to withdraw resignation. A personnel of the force who has served the force for any duration is bound to know that the decision making process also takes W.P.(C) No.8937 2020 time. Thus the withdrawal of resignation envisaged is nearly immediate so that even after the time taken in decision making the period of absence is not more than 90 days. 26. However at the same time the literal interpretation in its application has to permit some play. Thus in a case where withdrawal of resignation is made leaving enough and a reasonable amount of time for a decision to be taken thereon but nevertheless there is a delay in taking decision owing to the said delay the Rule cannot be permitted to be defeated. However the said play in consideration interpretation of the provision policy cannot extend to cases where it is found that the withdrawal of resignation is submitted leaving no time for the authorities concerned to take a decision thereon. 27. The period of 90 days of the petitioner here was expiring on 29th July 2018 after taking into consideration 31 days of May 2018 and 30 days of June 2018. The respondents BSF received the letter dated 23rd July 2018 of withdrawal of resignation of the petitioner only on 28th July 2018 i.e. on the penultimate day of the 90 days. The petitioner having been a member of the force for eight years before his resignation knew very well that in one day no decision could be taken. Not only so the petitioner as aforesaid left lacunas in the letter knowing fully well that in the normal course he will be called upon to rectify the same. As aforesaid the petitioner also proceeded to go abroad rather than waiting to be called back. The petitioner is thus found to have acted in a manner so as to have as much absence as he desired while taking advantage of the technicalities. Anybody bona fide wanting to rejoin would have remained in a state of readiness to rejoin immediately on the very next day of being communicated the acceptance of the withdrawal of W.P.(C) No.8937 2020 resignation. The petitioner on the contrary has been taking his own sweet time to take advantage of the Rule Policy and which cannot be permitted. 28. The counsel for the petitioner has also laid much emphasis on the letter dated 18th November 2019 of the Commandant S. Ganesh informing the petitioner that his case in pursuance to the application dated 23rd July 2018 was being processed for approval of the competent authority and MHA and asking the petitioner to give fresh consent willingness. On the basis thereof it was contended that the case of the petitioner is still actively being considered. 29. We have however enquired the sanctity of the said communication of Commandant S. Ganesh of the respondents BSF. The application of the petitioner dated 23rd July 2018 with reference whereto the letter is written had already been rejected vide letter dated 15th January 2019. We have enquired from the counsel for the respondents BSF whether any enquiries have been made from CommandantS. Ganesh of the basis of sending the communication. The counsel for the respondents BSF states that since he is appearing on advance notice he has no instructions. However we cannot act on the basis of a letter of a Commandant level officer after the President of India has already conveyed his decision. 30. Vide letters dated 15th January 2019 and 14th August 2019 the petitioner had already been informed of the withdrawal of his resignation having not been acceded to. CommandantS. Ganesh has no authority to thereafter seek fresh willingness of the petitioner. W.P.(C) No.8937 2020 31. That brings us to the judgments referred to by the counsel for the petitioner. Deepak supra was a case of a Constable who while still undergoing training pursuant to recruitment under an impulse of depression occasioned by domestic responsibilities and illness of his parents submitted his resignation but realized his mistake immediately on meeting his family and applied for the withdrawal of the same within about 15 days. It was in these facts that the petition was allowed. Nirmal Verma supra was the case of a Headmistress in a Municipal Corporation of Delhi school who submitted the resignation to contest the MCD election and withdrew the same on losing the election. The withdrawal of resignation in that case was sought to be rejected on the ground of the petitioner despite being a government servant having indulged in politics. The decision of the Court thus was on the said aspect and not qua Rule 26(4) of CCSRules supra which was mentioned only as entitling the withdrawal of resignation. In Ravi Tomar supra the order directing the acceptance of the application for withdrawal of resignation had been passed in the peculiar facts of the case where the respondents had chosen not to spell out the clear reasons for not exercising the discretion in favour of the petitioner while accepting similar applications of other officers. 32. The other two judgments of the Supreme Court that is Balram Gupta supra and Wing Commander T. Parthasarathy supra have been cited on the aspect of fickle mind but that is not the question here. Rather in Balram Gupta supra it was held that ordinarily permission to withdraw resignation should not be granted unless the person concerned is in a position to show that there has been a material change in circumstances in consideration of W.P.(C) No.8937 2020 which notice was originally given. The petitioner is not a person of fickle mind but a person who treats service to the country as a hop on hop off service. 33. The counsel for the petitioner has also contended that once the law permits the withdrawal of resignation the same should be allowed. In this respect the counsel for the respondents BSF is correct that Rule 26(4) of the CCS Rules as well as the Policy do not confer any right. The word used is „may‟. The discretion is still with the government and unless the discretion exercised is found to have been exercised in violation of the Rule Policy or in a mala fide manner no ground for interference is made out. 35. We also find that the Supreme Court recently in Union of India Vs. Subrata Das MANU SC 0109 2019 was concerned with requests for withdrawal of earlier requests for Premature Separation from Service of the personnel of Indian Air Force governed by the Human Resource Policy dated 5th August 2011. It was held entry into and departure from the service of Air Force is in terms of the Air Force Act 1950 and Rules framed thereunder and is not a matter which lies at the sweet will of the member of the Air Force the organizational efficiency of the armed forces of the Union is of paramount importance in interpreting the provisions of the Policy including the withdrawal of a request for premature separation it is necessary to emphasize that an officer who is granted premature separation takes away an existing vacancy which could have been provided to another officer of the Air Force permitting an absolute right to withdraw from the approved premature separation may it is apprehended lead to the use of W.P.(C) No.8937 2020 premature separation from service as a tool to escape transfers to sensitive appointments the right to withdraw a request for premature separation from an armed force is not absolute or unconditional and is not a matter of right a withdrawal can be permitted only by way of exception and on extreme compassionate grounds and administrative judgment of the authorities of the Air Force is not to be lightly interfered with. 36. The aforesaid judgment of recent origin reaffirms our view hereinabove. 37. There is no merit in the petition. 38. Dismissed. RAJIV SAHAI ENDLAW J. ASHA MENON J. DECEMBER 18 2020 W.P.(C) No.8937 2020

A worker who was removed from service illegally is entitled to 100% of the back wages: High Court of Orissa

In cases where a workman is suspended from service illegally, he is entitled to gain 100% of the back wages he was owed for the time period he was kept out of service by his employer. The issue of back wages was addressed in the judgement passed by a bench of the High Court of Orissa consisting of Justice S.K Panigrahi and Justice Sanju Panda in the case of Sun Pharmaceutical Industries Ltd. v State of Odisha and another [W.P.(C) No. 6156 of 2017] on 11th June 2021. Sun Pharmaceutical Industries Ltd., the petitioner terminated the services of former employee Niranjan Sahoo, who is opposite party no: 2 on 18th February 2014. Sahoo was the district manager at Ranbaxy Laboratories, Bhubaneshwar since 3rd May 2010 which is owned by the petitioners.  He was suspended from his job on account of poor attitude and team management skills which lead to members of the Orissa Union detaining the regional manager of the concerned unit to demand the revocation of Sahoo’s suspension. Instead it resulted in Niranjan Sahoo being terminated from services permanently. The matter was taken to Labour Court where the Presiding Officer held that the petitioners had not followed the principles of natural justice while conducting the domestic inquiry against opposite party no: 2 and as opposite party no: 2 was a workman under Section 2(s) of the ID Act 1947, the petitioner was liable for the offence of illegal termination of workman. The Presiding Officer also directed the petitioner to reinstate opposite party no: 2 as well as pay him 50% of the back-wages for his time out of service. The petitioners filed a writ petition in the High Court of Orissa against the Presiding Officer’s judgement on the grounds that opposite party no: 2 should not be considered as a workman. The High Court stated that designation or name of a post is irrelevant in ascertaining whether a person is a workman or not and therefore the opposite party 2 would be considered as a workman despite holding the post of district manager as he did not possess the authority to take disciplinary action against the other workers or to grant them leave. It was also added that considering that the termination was found to be illegal, opposite party no: 2 should be entitled to 100% of the back wages as opposed to the 50% granted by the Labour Court. The case of Bhuvesh Kumar Dwivedi v M/s Hindalco Industries Ltd. [11 SCC 85 of 2014] was cited, where the Supreme Court of India held that if a workman is kept out of work due to the mistake of the establishment, he is entitled to full back wages for the time he was kept out of service.

ORISSA HIGH COURT CUTTACK W.P.(C) No.61517 In the matter of an application under Articles 226 and 227 of Constitution of India) Sun Pharmaceutical Industries Ltd. … Petitioner Versus … Opposite Parties Shri Sourya Sundar Das Senior Advocate along with M s. S.K. Mohanty J. Mohanty S.K. Mohanty and S. Modi Shri Jagannath Patnaik Senior Advocate along with M s. P.K. Das 1 and S. Das Advocates For opposite party No.2) State of Odisha and another For Petitioner For Opp. Parties : P R E S E N T: THE HONOURABLE KUMARI JUSTICE S. PANDA THE HONOURABLE MR. JUSTICE S.K. PANIGRAHI Date of hearing: 22.02.2021Date of Judgment: 11.06.2021 S.K. Panigrahi J. The petitioner by way of this writ petition assails the award dated 31.12.2016 in I.D. case No. 32 of 2015 passed by the learned Presiding Officer Labour Court Bhubaneswar holding that the present petitioner was bound by the reference by Government and directing reinstatement of the Opposite Party No.2 with further direction to pay 50% back wages. The factual conspectus of the present petition hovers around the order of termination of the opposite party No.2 w.e.f. 18.02.2014 and the alleged dispute was set into motion based upon a reference vide letter No.4643 IR(ID) 16 2015 LESI dated 22.05.2015 by Government of Odisha in the Labour and E.S.I. Department which runs as follows: “Whether the termination of the services of Shri Niranjan Sahoo Ex District Manager Maxxim by the management of M s. Ranbaxy Laboratories Ltd. Maxxim Division Western EdgeI Unit No.201 204 2nd Floor Western Express Highway Borivali Mumbai having their Regional Office at OLISA House 2nd Floor 4 Govt. Place North) Kolkata 1 with effect from the 18th February 2014 is legal and or justified If not to what relief the workman is entitled ” The Opposite Party No.2 was employed with the erstwhile M s. Ranbaxy Laboratories Ltd. as District Manager and was posted at Bhubaneshwar Headquarters w.e.f. 03.05.2010 in Maxxim Strategic Business Unit. During the short period of his joining in duty his superiors identified issues of poor attitude performance and team management by the Opposite Party No.2 and based on the same the Regional Manager started conducting monthly reviews to guide and monitor him. On seeing no significant improvement in the performance of the Opposite Party No.2 and the issues continued as such it was recommended by the Strategic Business Unit to have his performance reviewed at Head Office Mumbai. Accordingly he was called to Head Office on 27.05.2012 and his performance was reviewed in the presence of HR and National Sales Manager. During the review process it was observed that he was defiant on most of the points even to the extent that he refused to sign the minutes of the meeting so held. Subsequent to the same there was no improvement seen in the working of the opposite party No.2 and when questioned he projected indifferent attitude. Based on the same the erstwhile Company decided to conduct a domestic enquiry against him through an independent Enquiry Officer and accordingly the services of Opposite Party No.2 were suspended vide letter dated 19.07.2013 pending enquiry. Thereafter the concerned Regional Manager of the Maxxim Business Unit while conducting a meeting of his District Managers at Cuttack was illegally detained by the members of the Orissa Union with a demand of revoking the suspension of the Opposite Party No.2 for which the Company filed an FIR at the local Police Station. The Enquiry Officer submitted his report having afforded the opportunity of hearing to the Opposite Party No.2. Based on the findings thereof the service of Opposite Party No.2 was terminated w.e.f. 18.02.2014 by erstwhile Ranbaxy Laboratories Ltd. Being aggrieved by the punitive culture of the management of the said Company the Odisha Sales Executives’ Association raised an industrial dispute before the DLO Cuttack for conciliation against the termination order and the same having failed was referred by Appropriate Government to Presiding Officer Labour Court Bhubaneswar. The Presiding Officer during pendency of the proceeding without any further reference impleaded the petitioner as a party and issued summons to the petitioner. Prior to the date of reference the said M s. Ranbaxy Laboratories Ltd. had been amalgamated with M s. Sun Pharmaceuticals Industries Ltd. and there was no existence of the said management as M s. Ranbaxy Laboratories Ltd. on the date of reference. Therefore it was contended that without the rectification of the reference by the appropriate Authority of State Government the present proceeding against M s. Sun Pharmaceuticals Industries Ltd. was not maintainable. The learned Presiding Officer has also held that i) the Petitioner management has not followed the principle of natural justice while conducting the domestic inquiry against the Opposite Party No.2. The Opposite Party No.2 is a workman under Section 2(s) of the ID Act 1947 Since the petitioner Management has merged with the organisation of the second party management so the petitioner management is liable for the illegal termination of the Opposite Party No.2 workman The workman is not entitled to get full back wages however he is entitled to reinstatement of service by the petitioner management with back wages of 50%. Aggrieved by the order of the learned Labour Court the petitioner has approached this Learned Counsel for the petitioner submits that the order is perverse to the materials available on record. The learned Presiding Officer Labour Court Bhubaneswar has failed to take note of the earlier judgments and orders passed by the Hon ble Apex Court and Hon ble High Court which formed part of records and further failed to take note of the judgments and citations submitted during hearing. The learned Labour Court has erred in assuming jurisdiction which is not vested with it as the Opposite Party No.2 was not a workman as per the provision of Section 2 of the I.D. Act 1947 and the territorial jurisdiction of Court was limited to Court at Delhi in view of the submission of jurisdiction to Delhi in the appointment letter. He has further submitted that the learned Presiding Officer Labour Court has committed error in appreciating the requirement of burden of proof which rested on the Opposite Party No.2 as he claimed himself as workman and which could not have been shifted to petitioner. Neither the Opposite Party No.2 nor the Territory Executives reporting to the Opposite Party No.2 were discharging job of the nature of any manual unskilled skilled technical operational clerical or supervisory work. As such the opposite party No.2 cannot be termed as a ‘workman’. Further the domestic enquiry then was conducted by a neutral person in a fair and transparent manner by giving sufficient opportunity of hearing. Hence the entire proceedings and the findings therein is valid in the eye of law but the learned Presiding Officer Labour Court has erroneously returned a finding that the same is illegal and in violation of natural justice and accordingly passed an order of reinstatement. He has further submitted that the Labour Court erred in the process while fixing burden of proof on the petitioner though it was Opposite Party No.1 who was to discharge the same and prove the irregularity and prejudice caused to him if any in the domestic enquiry. The learned Court further proceeded as if acting as an Appellate Authority over domestic enquiry and passed an order on erroneous appreciation of materials and evidence on record. Therefore the Labour Court has acted mechanically sans application of its judicial mind while entertaining the claim and passing the impugned order. The said impugned order is prejudicially affect the petitioner hence warrants interference of this Court. He contended that learned Labour Court Bhubaneswar has failed to appreciate the fact that the Opposite Party No.2 nor the Territory Executive reporting to the Opposite Party No.2 were not discharging the job of any manual nature unskilled skilled technical operational clerical or supervisory work as such Opposite Party No. 2 can’t be termed as “workman” as held by the apex Court in plethora of judgments. 10. Learned Counsel for the Opposite Party No.2 contended that most of the charges levelled against the workman is non specific and vague in nature. He further submitted that none of the allegations levelled against the petitioner was of serious nature the suspension of service was wholly unwarranted. The inquiry was conducted at the company’s office at Kolkata without conceding to any of the request of the workman and by violating the principles of natural justice. It is submitted that so many extraneous factors have been brought in during the course of inquiry with so many vague allegations just to throw the workman out of the Company. The management arbitrarily terminated his service with immediate effect since 18th Feb 2014 which is illegal hence he is entitled to get the back wages. 11. Heard the parties at length. The issue pertains to the reference of Sun Pharmaceuticals as a party to the suit when it was not present in the reference by the appropriate authority of State Government. It has been brought into notice that pursuant to a scheme of arrangement effective on 24.05.2015 M s Ranbaxy Laboratories Ltd. was merged with Sun Pharmaceuticals which was also cleared during the investigation. Further it was clarified that there is no existence of the M s Ranbaxy Laboratories Ltd. The learned Counsel for the petitioner has strenuously contended that without the rectification of the reference by the appropriate authority of State Government the said proceeding against Sun Pharmaceuticals was beyond the scope and purview of reference. However it may be out of place to mention that the employees of M s. Ranbaxy Laboratories Ltd. continued in their service under Sun Pharmaceuticals and the management of the erstwhile M s. Ranbaxy Laboratories Ltd. even after the takeover. This in turn indicates the obligation of the Sun Pharmaceuticals towards the management of the M s. Ranbaxy Laboratories Ltd. in so far as the issue of employee’s welfare after the said takeover. Further in the case of M s Ranbaxy Laboratories Ltd. vs M s Sun Pharmaceuticals Industries Ltd.1 the Court has extracted the relevant clauses of the Scheme of Arrangement wherein it has been clearly provided that the Sun Pharmaceuticals is bound by the legal proceeding pending against 1 CA Nos.64 and 73 of 2015 and CA No.963 964 of 2014 in and CP No.165 of 2014 pronounced on 9 March 2015. M s. Ranbaxy Laboratories Ltd. Therefore the reference by the appropriate authority of State Government against M s. Ranbaxy Laboratories Ltd. is binding on the Sun Pharmaceuticals. 12. Secondly the issue pertaining to jurisdiction of this Court to decide the reference. The learned Counsel for the petitioner has contended that in the appointment letter Ext.CatClause 18 it has been clearly mentioned that any dispute arising between the company and the petitioner with regard to interpretation of the letter or in the matter with regard to any claim or payment or damages etc. shall only be dealt with and adjudicated upon by the Courts functioning in Delhi. However as rightly pointed out by the learned Presiding Officer of the Labour Court it is a settled principle of law that the parties cannot exclude the jurisdiction of a Court by an agreement when a Court has got jurisdiction under an Act. The Government of Odisha in the Labour and E.S.I. Department in exercise of powers conferred upon it by Section 12(5) r w Section 10(1)(c) of the Industrial Disputes Act 1947 referred the following dispute for adjudication by the Labour Court Bhubaneshwar vide letter No.IR(ID) 16 2015 4643 LESI dated writing Section 10. Reference of disputes to Boards Courts or Tribunals. 1) Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended it may at any time by order in c) refer the dispute or any matter appearing to be connected with or relevant to the dispute if it relates to any matter specified in the Second Schedule to a Labour Court for adjudication. Section12. Duties of conciliation officers. 4) If no such settlement is arrived at the conciliation officer shall as soon as practicable after the close of the investigation send to the appropriate Government a full report setting forth the steps taken by him for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof together with a full statement of such facts and circumstances and the reasons on account of which in his opinion a settlement could not be arrived at. 5) If on a consideration of the report referred to in sub sectionthe appropriate Government is satisfied that there is a case for reference to a Board Labour Court Tribunal or National Tribunal it may make such reference. Where the appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefor. Therefore this Court has ample jurisdiction to decide the dispute raised by the Opposite Party No.2 in the present reference. 13. The issue pertaining to the question as to whether the petitioner falls under the provision of workman u s 2(s) of the Industrial Disputes Act 1947. The learned Counsel for the petitioner has contended that the Opposite Party No.2 was entitled to the benefits and allowances and his responsibility was in lines with that of a ‘Manager’ and as such cannot be termed as a workman. He also argued that Opposite Party No.2 was supervising the works of the Territory Executives working under him and he was performing his duty in managerial and administrative cadre. It is well settled principle of law that designation or name of the post is not material while dealing with the question of person being workman. The main duties the employee is performing is the criteria to determine whether he falls within the category of workman in the I.D.Act. In S.K. Maini vs Carona Sahu Co. Ltd2 the Supreme Court has held as under: “9. After giving our careful consideration to the facts and circumstances of the case and the submissions made by the learned counsel for the parties it appears to us that whether or not an employee is a workman under Section 2(s) of the Industrial Disputes Act is required to be determined with reference to his principal nature of duties and functions. Such question is required to be determined with reference to the facts and circumstances of the case and materials on record and it is not possible to lay down any strait jacket formula which can decide the dispute as to the real nature of duties and functions being performed by an employee in all cases. When an employee is employed to do the types of work enumerated in the definition of workman under Section 2(s) there is hardly any difficulty in treating him as a workman under the appropriate classification but in the complexity of industrial or commercial organisations quite a large number of employees are often required to do more than one kind of work. In such cases it becomes necessary to determine under which classification the employee will fall for the purpose of deciding whether he comes within the definition of workman or goes out of Additionally the Labour Court has rightly relied on the case of Hussan Mithu Mhasvadkar vs Bombay Iron & Steel Labour Board3 wherein the Supreme Court held that: “10. No doubt in deciding about the status of an employee his designation alone cannot be said to be decisive and what really should go into consideration is the nature of his duties and the powers conferred upon as well as the functions assigned to him. 21994 AIR 182. 11. Even if the whole Undertaking be an Industry those who are not workmen by definition may not be benefited by the said status. It is the predominant nature of the services that will be the true and proper test.” In the present case during witness hearing and cross examination it was admitted that the Opposite Party No.2 was engaged in tasks which do not fall under personnel in managerial cadre and further was abstained from certain powers reserved for personnel in managerial or administrative position. Firstly there are no documents before the Court to indicate that the territory executives were reporting to the petitioner and the latter was supervising their works. Moreover the target for sale was fixed for the Opposite Party No.2 by the management from time to time. Further the Opposite Party No.2 did not have any authority to sanction leave of the territory executives nor take any disciplinary action against them. In addition to that the Opposite Party No.2 had no role to play in formulating sales strategy but he had the duty to execute through his team. Therefore it can be established that the Opposite Party No.2 is a ‘workman’ as defined u s. 2(s) of the Industrial Disputes Act 1947. 12. The next issue pertains to the compliance to the principle of natural justice and the legality of the domestic enquiry. In the case of Laxmi Shankar Pandey vs Union of India AndOrs4 the Supreme Court held that: “6.….It is laid down that such enquiries must be conducted in accordance with the principles of natural justice and that a 4AIR 1991 SC 1070 reasonable opportunity to deny the guilt and to cross examine the witnesses produced and examined should be given and that the enquiry should be consistent with the rules of natural justice and in conformity with the statutory rules prescribing the mode of From the witness examination cross examinations and the adduced evidence it has been admitted that there were several flaws in the process of domestic enquiry followed by the M s. Ranbaxy Laboratories Ltd. M s. Ranbaxy Laboratories Ltd. has failed to produce the depositions of the witnesses recorded by the Enquiry Officer during the enquiry before the Court. It has been further admitted that the Enquiry Officer had not sent any notice to the Opposite Party No.2 for the domestic enquiry conducted against him. Therefore there is a clear violation of the principle of natural justice. It is a settled law that in case the violation of principle of natural justice leads to hampering the domestic enquiry where the delinquent is not provided with a reasonable opportunity to defend himself such a proceeding shall be held as null and void. In the present case M s. Ranbaxy Laboratories Ltd. has violated the principle of natural justice and the domestic enquiry is thereby held as null and void. 14. The next issue pertains to the legality of termination of Opposite Party No.2. From the issues discussed above it is clear that the Opposite Party No.2 is a ‘workman’ u s 2(s) of the Industrial Disputes Act 1947 and therefore has the right to challenge his termination. Further it has been proven that the 1st party managements have violated the principle of natural justice and the domestic enquiry has been thereby held as null and void. Hence the termination of Opposite Party No.2 by M s. Ranbaxy Laboratories Ltd. is illegal and not justified. Further considering that the management of M s. Ranbaxy Laboratories Ltd. is binding on the Sun Pharmaceuticals the latter shall be liable for the illegal termination of Opposite Party No.2. 15. The seventh issue framed by the learned Labour Court pertains to the benefits the Opposite Party No.2 is entitled to considering that the termination was illegal. The learned Labour Court has decided all the issues in favour of the workman. However while replying to Issue No.7 the Labour Court held that there is no evidence that after termination of the opposite party No.2 he tried for his engagement under any other Company. Additionally he has not contributed anything to the 1st party management after his termination and hence he is only entitled to 50% back wages. However it is a settled principle of law that in case a workman was terminated illegally he is entitled to the full back wages irrespective of whether he was engaged elsewhere during that particular time or not. In the case of Bhuvnesh Kumar Dwivedi vs M s. Hindalco Industries Ltd.5 the Supreme Court held that: “30. On the issue of back wages to be awarded in favour of the appellant it has been held by this Court in the case of Shiv Nandan Mahto v. State of Bihar Ors.6 that if a workman is kept out of service due to the fault or mistake of the establishment company he was working in then the workman is entitled to full back wages for the period he was illegally kept out of 5(2014) 11 SCC 85. 14 service. The relevant paragraph of the judgment reads as under: 5. …. In fact a perusal of the aforesaid short order passed by the Division Bench would clearly show that the High Court had not even acquainted itself with the fact that the Appellant was kept out of service due to a mistake. He was not kept out of service on account of suspension as wrongly recorded by the High Court. The conclusion is therefore obvious that the Appellant could not have been denied the benefit of back wages on the ground that he had not worked for the period when he was illegally kept out of service. In our opinion the Appellant was entitled to be paid full back wages for the period he was kept out of service.” Therefore the Opposite Party No.2 should be granted 100% full back wages in the interest of justice. In our considered opinion the act of suspension and subsequent termination of Opposite Party No.2 without due compliance of the principle of natural justice vitiates the proceedings dehors sufficient reasons smacks arbitrariness and malafide. Hence the order dated 31.12.2016 passed in I.D. Case No.315 by the learned Presiding Officer Labour Court Bhubaneswar is affirmed but the direction of 50% back wages granted to the opposite party No.2 is modified and made 100%. The Writ Petition is accordingly disposed of. No order as to cost. S. K. Panigrahi J.] 15 Sanju Panda J.] Sanju Panda J. I agree. Orissa High Court Cuttack The11thJune 2021 AKK LNB AKP

Presumptions based on Reasonable doubt not sufficient to establish Guilt: Delhi High Court

Presumptions solely based on reasonable doubts are not sufficient to establish guilt of the accused. Relevant material evidences must be provided for establishing guilt of a person and benefits of reasonable doubts must not be used to implicate for solving the case. This assertion was made on behalf of the Delhi High Court by J. Suresh Kumar Kait in the case of Arvind alias Bodyguard vs. State [CRL.A. 589/2018]. The genesis of the case come from the time when ASI Anand Kumar was assigned along with Ct. Dinesh reached just ahead of Metro line at Yamuna Bank Railway Line, Delhi, and met complainant Anil Kumar, and with him, they walked towards the said spot, and the ASI recorded statement of complainant who stated that he was working in a Security Office. When train reached ahead of Metro Line, it stopped. The complainant got down from the train and started walking when a boy mugged him and threatened him with a knife.  Later on, the appellant was pointed out by the secret informer and he was arrested in the case. During police custody remand of the appellant, the mobile phone of the complainant and the knife used in the commission of the offence could not be recovered. In the instant case, the honorable court held, “Admittedly, the stolen phone has not been recovered from the appellant, or at all. As such, other than the weak identification by the appellant, which itself was based on a fleeting and momentary glance, there is nothing on record to connect the appellant to the crime in question. 33. Further important to note that the complainant has nowhere disclosed about the kind of knife that was allegedly used by the offender. Moreover, no knife has been recovered. As such, the conviction u/s 397, IPC cannot be sustained since there is no proof that a ‘deadly weapon’ was used.” The court further asserted, “In view of recorded facts, it is established that the complainant, who had only got a fleeting glance of the offender during the incident, was informed and convinced by the police that the police had found the offender, and the complainant in his zeal to assist the police ‘solve’ the case, identified the appellant as the offender. The appellant herein was a vagabond and I have no hesitation to place on record that the appellant was easy to implicate for ‘solving’ the case. Thus, it cannot be said that the prosecution had established the appellant’s guilt beyond reasonable doubt”.

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 07th December 2020 Pronounced on: 14th January 2021 ARVIND alias BODY GUARD Through: Mr. Anuj Kapoor Adv. ..... Appellant Through: Mr. Izhar Ahmad APP for State ..... Respondent HON BLE MR. JUSTICE SURESH KUMAR KAIT JUDGMENT The hearing has been conducted through video conferencing. The present appeal has been filed by the appellant to set aside the judgment of conviction and order on sentence dated 19.03.2018 passed by learned ASJ East District Karkardooma Courts Delhi in SC No.2316 2016 pertaining to FIR No.624 2016 for the offences punishable under Section 392 IPC read with Section 397 IPC registered at Police Station Shakarpur Delhi and to acquit the appellant. The case of prosecution is that on 09.06.2016 at about 9.30 am during emergency duty ASI Anand Kumar was assigned DD No.9A who along with Ct. Dinesh reached just ahead of Metro line at Yamuna Bank Railway Line near Pole No. 1 28 Shakarpur Delhi and in the way he met complainant Anil Kumar and with him they walked towards the said spot and the ASI Anand Kumar recorded statement of complainant who stated that he was working in a Security Office at S 559 School Block Shakarpur and on 09.06.2016 he was coming from Hapur to Delhi by a train and at about 8.00 am when train reached ahead of Metro Line at Yamuna Bank Shakarpur it stopped as no signal was received. Since his office was near to the said place he got down from the train and started walking. In the meantime train also went away after receiving signal and till then he had walked a little distance. A boy came from behind and asked him as to where he hailed from and thereafter that boy took out a knife and asked him to take out whatever he was having with him. The said boy took a sum of Rs.7 000 from his ‘Pithoo Bag’and took out his mobile phone make Nokia Lumia 730 forcibly however that boy returned him two SIMs No. 9212412810 and 9410454970 after taking out from the said mobile. On the basis of the said statement of the complainant Anil Kumar the ASI got registered the FIR and during investigation the site plan of scene of occurrence was prepared. Thereafter on 25.08.2016 on an information of the secret informer ASI Anand Kumar along with Ct. Harender and informant reached at Laxmi Nagar Metro Station where the appellant was pointed out by the secret informer and he was arrested in the case. Thereafter a request was made for conducting his TIP to which the appellant refused before the concerned MM. During police custody remand of the appellant the mobile phone of the complainant and the knife used in the commission of the offence could not be recovered. On 27.08.2016 the complainant came to the Police Station to hand over the copy of his mobile bill where he identified the appellant at the Police Station. After completion of investigation the charge sheet was filed. Vide order dated 09.12.2016 the Trial Court framed charges against the appellant for the offences under Sections 392 397 IPC to which he pleaded not guilty and claimed trial. In order to substantiate its case the prosecution has examined as many as 7 witnesses in the case whose depositions inter alia would be The appellant was examined under Section 313 Cr.P.C wherein he denied all the allegations levelled against him as false and claimed himself to be innocent and having been falsely implicated in the case. He opted not to lead any evidence in his defence. PW4 ASI Vinod Kumar was the duty officer who proved copy of the FIR as Ex.PW4 A on the basis of the rukka Ex.PW2 A the certificate under Section 65B of the Evidence Act as Ex.PW4 B and proved DD No.9A dated 09.06.2015 as Ex.PW4 C. PW5 Sh. Shishir Malhotra the Nodal Officer of M s Aircel Ltd deposed that the mobile phone numbers 9212412810 and 9410454970 were not found operational during the period from 09.06.2016 to 05.09.2016 and from 29.08.2016 to 05.09.2016 respectively as per IMEI No. 357168066773544 and IMEI No. 353894070528921. PW6 Sh. Subhash Kumar Mishra Metropolitan Magistrate proved application for conducting TIP of the appellant as Ex.PW6 A besides the TIP proceedings as Ex.PW6 B whereby the appellant had refused to join the TIP. PW7 ASI Anand Kumar the IO has proved receiving of DD No.9A dated 09.06.2016 going to the spot of occurrence with Ct. Dinesh meeting complainant there recording the statement of the complainant preparing rukka Ex.PW7 A handing over the same to Ct. Dinesh for registration of the FIR preparing of site plan of the spot as Ex.PW2 B a secret information dated 25.08.2016 reaching gate No.2 Laxmi Nagar Metro Station and apprehending the appellant at the pointing out of secret informer arresting the appellant recording the disclosure statement Ex.PW7 B and arresting him vide memos Ex.PW3 A and Ex.PW3 B on 26.08.2016 moving the application for TIP before the concerned MM refusing to join the TIP by the appellant obtaining police custody remand of the appellant preparing pointing out memo of the place of occurrence by the appellant vide memo Ex.PW7 C the complainant identifying the appellant at the Police Station on 27.08.2016 and the complainant providing mobile bill which is Ex.PW7 D. In his cross examination on behalf of the appellant PW7 stated that DD No.9A was received by him at 9.30am and he admitted that in the said DD at the top the date is written as 09.06.2015. He further deposed that the complainant met them on the way at a distance of ½ km before the spot and he had contacted the complainant on his mobile phone. He admitted that no DD entry was recorded for the secret information and he left for the Laxmi Nagar Metro Station at 1.00 am where Ct. Harinder met him and the appellant arrived at the spot from where he was arrested around 1.25 am. It took five to ten minutes while interrogating the appellant and preparing the memos. He left the Laxmi Nagar Metro Station at about 1.40 am. He could not join any public person or any official of the Metro Station during the said proceedings. He further deposed that he returned to Police Station at 2.50 am where DD entry was recorded to that effect but he neither remember the DD number nor he placed the copy of the same on the judicial record. He admitted that the complainant had come to the Police Station with copy of the bill of mobile of his own in the morning time but he did not make any seizure memo of the same. 11. PW2 Sh. Anil Kumar the complainant deposed that on 09.06.2016 he was working in a office at Shakarpur School Block located at S 561. On that day he had boarded train from Hapur Railway Station and reached Delhi at around 8.00 am. The train had not reached the destination however stopped just ahead of Metro Bridge Yamuna Bank as there was no signal for the train. Sensing the situation he got down from the train because his office premises was near to that place. Thereafter when he was coming towards Yamuna Metro Bridge one person came from behind and pointed the knife on his person aiming his chest. The said person questioned him as to from where he hailed and directed him to hand over whatever articles he had. That person was the appellant who took out Rs.7 000 from his purse which he had kept in his bag. The appellant also removed his mobile phone make Nokia Lumia 730 from his left side pant pocket. The phone was operational on mobile phone Nos. 9212412810 and 9410454970. Appellant removed both the SIMs from the said mobile phone and handed over the same to him before the IO. He gave his ID and bill of mobile to the IO and the photocopy of the same are Mark PW2 A and PW2 B respectively. He admitted that none of his articles could be recovered by the police. In his cross examination PW2 replied that he had not provided ticket document of the train regarding his journey on 09.06.2016 from Hapur to Delhi to the police as it was MST Pass. Further admitted that he had not given the photocopy of the MST Pass to police. He stated to the police in his statement Ex.PW2 A that he had gone to his office and from there he dialed at number 100 from his mobile phone No. 9212412810 by inserting the SIM in another instrument which was lying in the office. However he was confronted with his statement Ex.PW2 A where it was not found so recorded but he volunteered that the same might not have been recorded in his statement by police. He further admitted that he had not stated in his statement to the police regarding age height and features of the offender who had committed the offence but police had informed him regarding arrest of the appellant in this case. Further admitted that he went to Police Station on 27.08.2016 on his own and was not called by the police on that day. The police had not prepared seizure memo of documents when he handed over the documents Mark PW2 A and PW2 B. During his further cross examination he deposed that he had stated to police in his statement that the appellant took out Rs.7 000 kept in his purse which was lying in his bag and that the appellant had pointed knife at his chest. However he was confronted with his previous statement Ex.PW2 A wherein factum of purse lying in Pithoo bag was not mentioned but he volunteered that the said facts were not recorded in his statement by the IO. 14. Learned APP while opposing the present appeal has submitted that the appellant has not only been identified by the complainant victim but his role has been defined clearly in his deposition. The incident is dated 09.06.2016 at about 8.00 am. The Court can take judicial cognizance of the fact that in the month of June it is not only hot but sufficient shining sun light at 8.00 am and the place of occurrence was not a regular way but was a lonely place. The appellant as per deposition of PW2 came from behind and pointed the knife on his person aiming at chest which means the appellant was face to face with the complainant and thereafter the appellant questioned about the native place of the complainant and directed him to hand over whatever articles the complainant was having with him. The said act of the appellant in the day light and that too he being face to face with the complainant talking to him asking him to hand over the articles at the point of the knife and thereafter taking out the purse from the bag of the complainant removing Rs.7 000 and mobile phone thereafter removing both the SIMs from mobile phone and handed over the same to the complainant and certainly the appellant was not either in a muffled face or hide his identity. All this must have taken a considerable time facilitating the complainant not only to see hisface but his face must have been imprinted in the mind of the complainant. All the said facts narrated by the complainant as PW2 in his deposition have remained unrebutted on the record in his cross examination on behalf of the appellant. 15. Learned APP further submitted that in the above said circumstances even if the appellant was arrested on 25.08.2016 it cannot be inferred that the complainant may not have remembered his face in his memory. In such a situation even there was no need of conducting a TIP of the appellant which would have been of the corroborative value only. On the other hand he denied the suggestion as wrong that on 25.08.2016 police had shown him the appellant. He further denied the suggestion that he had identified the appellant in the Court at the instance of the IO or that the appellant had not committed any offence with him or that he was not present on 09.06.2016 at the time and place as deposed by him. He positively asserted in the cross examination that he had gone to Police Station on 27.08.2016 of his own and he was not called by the police on that day. Merely the facts that he has not mentioned in his complaint to the police Ex.PW2 A that the knife was pointed out by the appellant at his chest or the purse lying in his bag are not so material improvements. The prosecution case cannot be thrown away on that account. Even in the complaint Ex.PW2 A he got recorded that the appellant took out a knife and asked him to hand over whatever he had. It is further submitted that the contention that handing over the two SIMs to the complainant after taking out the same from the robbed mobile was against the human course of conduct and as to why the appellant would return the same if at all he has robbed the mobile itself. In a given circumstance how a particular person shall act in which manner depends upon the nature and circumstances of each case and no prediction can be given in this regard. If the knife would not have been there in the hands of the appellant probably the complainant might have fought with him or at least protested against robbing him. But in the said circumstances he might have been so frightened that he could not dare to resist even against the conduct of the appellant. Similarly the appellant might not have been requiring the SIMs or he might have been taking extra precaution not to be arrested or chased due to the location of the mobile phone if the SIMs had remained inserted in the mobile. Thus the said arguments on behalf of the appellant do not come for his help. 17. Regarding the contention on behalf of the appellant that the complainant did not call the police from the spot where he was robbed and first he had gone to his office and thereafter he called the police and as such it is a delayed reporting to the police and possibility of manipulation and afterthought cannot be ruled out. This contention has been suitably uprooted by the deposition of the complainant PW2 in his examination in chief and cross examination. Also when he deposed that at about 8.30 am he reached his office and from there dialed at number 100 from mobile phone number 9212412810 by inserting the said SIM in another instrument which was lying in the office. Moreover in answer to question put in cross examination he again repeated that he had stated to the police in his statement EX.PW2 A that he had gone to his office and from there he dialed at number 100 by inserting the said SIM in the instrument lying in his office. Although PW2 was confronted with his previous statement Ex.PW2 A where it was not found so recorded but PW2 volunteered that the same might not have been recorded in his statement by the police. The time gap between the incident and reporting to the police is so short that the possibility of manipulating or concocting a false story cannot be inferred. 18. Next contention that the mobile phone allegedly robbed and the knife used in the incident were not recovered is again futile in view of the fact that the incident is dated 09.06.2016 and the appellant was arrested on 25.08.2016. Thus during this period he was having sufficient time to dispose of the said two articles. 19. Further argument that bill of the mobile phone not proved on the record may be a lapse on the part of the IO but certainly the complainant is not having any control over the way of investigation. He had done whatever he could do by producing the copy of retail invoice of the mobile phone which is computer generated to the IO and the same is mark PW2 A. It was for the IO to collect the evidence with regard to the said copy of retail invoice which the IO has not done. But for the said lapse on the part of the IO the deposition of PW2 cannot be thrown away and rejected. 20. Learned APP further submitted that admittedly the complainant PW2 and the appellant were unknown to each other and there was no previous any kind of dealing or enmity between them. The complainant was not having any axe to grind against the appellant nor he was having any motive to falsely implicate him. His deposition has been corroborated by DD No. 9A Ex.PW4 C which proves that the matter was promptly reported by the complainant to the PCR from the mobile phone number 9212412810 and it mentions the spot as under the Akshardham Bridge where there was a U turn and while going towards Delhi the complainant was looted at the point of knife of his Rs.7 000 and a mobile phone. His deposition is further corroborated by the deposition of the IO PW7 ASI Anand Kumar who on CRL.A.589 2018 receipt of said DD No. 9A Ex.PW4 C along with Ct. Dinesh proceeded for the said spot and in the way he met the complainant Anil Kumar and from there they reached the said spot. No other reason has been assigned or pointed out to this Court for false implication of the appellant on behalf of the complainant. Even in his statement under Section 313 Cr.P.C there is mere denial of all the incriminating evidence put to him which was against him on the record. He did not lead any defence evidence to rebut or to create a dent in the story of the prosecution. Thus the present appeal deserves to be 21. Heard learned counsel for the parties and perused the material on 22. On perusal of the evidence on record the facts discussed inter alia emerged that the rukkawhich is the first recorded information about the alleged offence does not contain any description about the appearance of the offender thief. PW2 Anil Kumaradmits in his cross examination that he had not informed the police about the age height and features of the offender. Even the fact that the knife was pointed at the chest is missing from the rukka however PW2 makes this improvement only during his examination in chief. The rukka records that the offender came from behind and the alleged incident is said to have happened in a jiffy. Thus there is no doubt that the complainant got only a fleeting opportunity to see the offender. Moreover the appellant is said to have been arrested pursuant to secret information received by the police. However both PW7 and PW3 admit that the purported secret information was never recorded in writing. PW3 even states that he is not aware if the IO conveyed the purported secret CRL.A.589 2018 information to senior police officials. Also PW7admits that there was no record made about the secret information received. 23. PW7 states that before affecting arrest PW3 Ct. Harender met him at the Metro Station at 1:10 am. PW3 Ct. Harender states that he had left the police station during the relevant night when arrest was made just prior to 12 midnight. He further admits that the IO never made any telephonic contact with him prior to meeting him. Thus if admittedly the PW7and PW3 were not present in the Police Station together then there is no explanation forthcoming as to how PW3 was conveyed the purported secret information about the appellant s presence at the Metro Station. It is not the IO s case that the secret information was received while PW3 was still at the Police Station. 24. PW3 Ct. Harender states that he was on duty from 12 midnight to 6 am on 25.08.2016 and it is during this time at about 1:30 am the appellant was arrested pursuant to receipt of secret information. Thus PW3 speaks of the night intervening 24 25th August 2016 whereas PW7 ASI Anand Kumarstates that he was on emergency duty on 25.08.2016 from 8 pm to 8 am when the arrest was made. Thus suggesting that the arrest was made on the night intervening 25 26th August 2016. The arrest memo records the date time of arrest as 25.08.2016 at 1:30 am supporting PW3 Harender s version but the purported disclosure statement of the appellant Ex. PW 7 B) indicates overwriting where date is written at the bottom of the page. The remand documentsalso bears overwriting on the date. CRL.A.589 2018 25. It is pertinent to mention here that PW7 states that the appellant was taken for medical examination however his MLC has not been made part of the record. 26. There are question marks about purported secret information that the alleged incident is of 09.06.2016 but the purported secret information leading to the appellant s arrest is received 2.5 months later. This by itself does not inspire confidence. Admittedly the alleged incident is said to have happened near the railway line. It is not the prosecution version that there was any eyewitness to the alleged incident. In such circumstances who the secret informer was how he got information about the appellant s involvement in the case about his whereabouts etc. are all unexplained and do not inspire confidence. Moreover there is no reason as to why the appellant would go to Metro Station in midnight when the metro services are not even functional or any person present over there. 27. Furthermore the secret informer is said to have accompanied the police to the Laxmi Nagar Metro Station where on the pointing out of the secret informer the appellant is said to have been arrested. It appears that there was no attempt made to conceal the identity of the secret informer from the appellant herein. As such non examination of such person whose identity the police itself did not attempt to conceal from the appellant raises strong doubts about the reliability of the purported secret information. In case of Peeraswami v. State of NCT of Delhi 2007DRJ 363 this Court held as under: Thus the initial DD which was recorded by SI Raj Kumar talks of three things. One that he received information through an informer but before recording the same he conveyed it to Inspector Ashok Tyagi and before CRL.A.589 2018 the information was recorded Inspector Ashok Tyagi conveyed it to senior officers and also sent it in writing to them. When Inspector Ashok Tyagi appeared as PW 14 in the court he deposed that when he was present in his office along with other staff on 5th January 2001 at around 11.30 am SI Raj Kumar received a secret information on telephone and he conveyed the telephonic message to him. The information was that Peeraswmi and his wife Chambai appellants used to deal in smack and charas at their residence. He conveyed this information to his senior officials. In cross examination he admitted that he had not sent the information to his senior officers in writing and he only conveyed this information orally. He had not recorded the secret information on a paper. DD Ex.PW5 A recorded at 11.30 am is not the information received by Sub Inspector Raj Kumar but is a detailed information recorded after deliberations giving who did what. Had SI Raj Kumar received information and recorded it directly in DD he could not have mentioned information to his senior officials and his senior officials had in turn informed it to further senior officials and even sent a copy. When the information had not been recorded by Sub Inspector Raj Kumar how it could have been sent to senior officials in writing. Section 42(1) of the Act casts a duty upon the police official to reduce the information in writing whenever commission of an in respect of narcotic drugs or narcotic substances comes to his knowledge. After he reduces down the information in writing he has a duty to send a copy of the information to his superior officers within 72 hours. In fact Section 42 of the Act prescribes detailed procedure as to how a police official has to proceed when he receives an information. This procedure is not a mere formality for the sake of it but it provides a safeguard against false implication of persons. Section 42(1) of the Act mandates a police officer to necessarily record the information in writing and Section 42(2) casts a duty informed about that he had CRL.A.589 2018 upon a police officer who takes down the information in writing to forthwith sent a copy of information to his immediate superior officials. In the present case it is admitted by PW 14 that no copy of the information was sent by him to his senior officers. PW2 who appeared from office of DCP has specifically stated that only a report under Section 57 of the Act regarding this case was received in the office of DCP from Special Staff. He proved this report as Ex.Pw2 A and stated that no other document in respect of this case was received. 7. The manner in which DD Ex.PW5 A has been recorded casts doubt on the receipt of information itself. This doubt is further fortified from the testimony of PW 14 who stated that SI Raj Kumar had received telephonic information and communicated the same to him whereas Sub Inspector Raj Kumar stated that the information was received through a secret informer. The other factors which throw doubt on the story of prosecution is that the secret informers are nourished by the police to receive informations about the crimes. They are never brought face to face before the accused persons because that puts their lives in danger neither their identity is disclosed to the courts and courts also do not insist upon their identity. But in the instant case it is testified by Sub Inspector Raj Kumar that despite the fact that secret informer had given specific address where the trade of smack and charas was being carried out the secret informer was made a part of the raiding party. He was taken to the spot and he also pointed out to the appellant Peeraswmi and at his pointing out the appellants were arrested. If the identity of the secret informer was not so secret and he could accompany police party up to the house and come face to face with the appellant there is no reason why he could not have been produced in the court for deposition. The entire story of secret informer in fact is falsified from the testimony of PW14 who stated that the information was received on telephone…..” CRL.A.589 2018 29. PW2has deposed that on 27.08.20l6 he went to the Police Station to handover the bill of the stolen mobile phone to the police. At that time the appellant was present in the Police Station and he identified him as the offender. It seems that this is not a coincidence but was part of the prosecution plan so that the appellant could be identified by the 30. From the above facts it is established that the complainant who had only got a fleeting glance of the offender during the incident was informed and convinced by the police that the police had found the offender and the complainant in his zeal to assist the police solve the case identified the appellant as the offender. It is pertinent to note that on 26.08.2016 the IO moved an application for conducting the TIP of the appellant however he refused it. In his statement u s 313 Cr.P.C. at Q. no. 14 the appellant has answered that he refused TIP as he had been shown to the witness at the Police Station. The same was also suggested to the PW2 during his cross examination. As such the magical appearance of PW2 on 27.08.2016 was meant only to overcome this refusal since the appellant had already been shown to the complainant. 32. Admittedly the stolen phone has not been recovered from the appellant or at all. As such other than the weak identification by the appellant which itself was based on a fleeting and momentary glance there is nothing on record to connect the appellant to the crime in question. 33. Further important to note that the complainant has nowhere disclosed about the kind of knife that was allegedly used by the offender. Moreover CRL.A.589 2018 no knife has been recovered. As such the conviction u s 397 IPC cannot be sustained since there is no proof that a ‘deadly weapon’ was used. In case of Ghanshyam @ Bablu v. State Crl. A. 757 2007 this Court observed as under: Insofar as their conviction under Section 397 IPC is concerned in the absence of any recovery of the the appellants deadly weapon at punishment for 7 years cannot be sustained. Reference can be made to the judgment delivered by this Court in the case of Rakesh Kumar Vs. The State of NCT of Delhi. Some observation made in that case are reproduced instance of 2. Mr. Sumeet Verma learned Amlcus Curiae representing the appellant has pressed only one submission in support of the appeal though the grounds of appeal challenged the conviction on several grounds. The ground now being pressed is that at best the case than can be said to have been made out against the appellant under Section 392 IPC but not under Section 397 IPC. The basis of this contention is that according to the prosecution case the appellant had used a deadly weapon i.e. a knife while committing robbery along with his accomplices but the prosecution has not been able to establish that the knife used by the appellant was in fact a deadly weapon within the meaning of the term appearing under Section 397 IPC. In support of his contention he has placed reliance on a decision of this Court in the case of Charan Singh v. The State 1988 Crl.L.J. NOC 28 wherein the Court considering a similar situation held that in the absence of recovery of knife which was allegedly used at the time of commission of the robbery dacoity it cannot be presumed that the knife so used was a deadly weapon. The Court observed as under in this regard: CRL.A.589 2018 "At the time of committing dacoity one of the offenders caused injury by knife on the hand of the victim but the said knife was not recovered. In order to bring home a charge under S.397 the prosecution must produce convincing evidence that the knife used by the accused was a deadly weapon. What would make knife deadly is its design or the method of its use such as is calculated to or is likely to produce death. It is therefore a question of fact to be proved by the prosecution that the knife used by the accused was a deadly weapon. In the absence of such an evidence and particularly the non recovery of the weapon would certainly bring the case out of the ambit of S.397. The accused could be convicted under S.392." 3. On the other hand Mr. Sunil K. Kapoor appearing for the State has submitted that the Trial Court returned a positive finding about the appellant having used a deadly weapon at the time of commission of the robbery and therefore a case under Section 397 is squarely made out. Mr. Kapoor has vehemently urged that in view of the statement of PW 3 learned Court was fully justified in recording conviction against the appellant under Section 397 IPC. 4. This Court having considered facts and circumstances of the case and the material brought on record and the submissions made on behalf of the parties is of the view that since in the present case prosecution has not been able dimensions of the knife and to recover and produce the same at the time of trial it will not be appropriate to raise a presumption that the knife so used by the appellant was in fact a deadly weapon within the meaning of the term. There are knives of hundreds of type available in different length and width. It is true that PW3 in his examination stated that it was a bucher s knife which was used by the appellant. But in to establish CRL.A.589 2018 the material brought on record the cross examination he could not give the exact description or the length of the said knife. He has only stated that the length of the knife was more than 6". The prosecution in this case has not tried to find out and record the length or the description of the knife whether it was a spring operated knifeor a large knife which can be considered to be a deadly weapon within the meaning of the term used under Section 397 IPC. The Court is therefore of the considered opinion that even though the sentence of the appellant for the offences under Section 392 IPC is based on conviction of the appellant for the offences under Section 397 IPC cannot be upheld and the appellant is entitled to benefit of doubt on that count. 5. In the result the appeal is partly allowed. While maintaining the conviction of the appellant for the offences under Section 392 IPC the conviction of the appellant under Section 397 IPC is hereby set aside. The appellant was awarded 7 years rigorous imprisonment for the offence under Section 397 out of which he has already undergone a sentence of almost 6 years and 8 months and therefore this Court is of the opinion that ends of justice will adequately be met if the sentence of the appellant is restricted to the period already undergone by him and that would be considered to be a sentence awarded to him under Section 392 IPC.” 35. As per prosecution itself the bill of the mobile phone has not been duly proved. Only photocopy of the same was produced as is clear from the examination in chief of PW2 and also the cross examination of PW7. Importantly the police did not even prepare any seizure memo for taking into its possession the bill of the mobile phone. This gives further credence to the plea that the complainant s appearance at the Police Station on CRL.A.589 2018 27.08.2016 was meant only to overcome the appellant s refusal of TIP since he had already been shown to the witness. In addition to above even the PCR call was not proved. PW4 proves the making of the DD no. 9A by him but the PCR form has not been produced or proved. In view of above recorded facts and appellant herein was a vagabond I have no hesitation to place on record that the appellant was easy to implicate for solving the case. The Trial Court has overlooked all the evidence discussed herein. Thus from the above discussion it cannot be said that the prosecution had established the appellant s guilt beyond reasonable doubt. The appellant ought to be given benefit thereof however Trial court failed to do so. 38. Accordingly I hereby set aside the judgment of conviction and order on sentence dated 19.03.2018 passed by the Trial Court. 39. Consequently the appellant is acquitted and discharged from all the charges. 40. The appeal is accordingly allowed and disposed of. 41. The Jail Superintendent concerned is hereby directed to release the appellant forthwith if not required in any other case. 42. Pending application if any stands disposed of. 43. The judgment be uploaded on the website of this Court forthwith. JANUARY 14 2021 rk SURESH KUMAR KAIT) JUDGE CRL.A.589 2018

Test for discontinuing with lookout circular opened against a party is that he neither deliberately evades arrest nor fails to appear before Court: High Court of Delhi

The test laid down by the Court for discontinuing with LOC opened against a party is that he neither deliberately evades arrest nor fails to appear before the Trial Court despite the non-bailable warrants nor has any coercive action been taken against him. These were stated by High Court of Delhi through the learned bench led by Justice Mukta Gupta in the case of Shri Sathish Babu Sana vs. Central Bureau of Investigation [W.P.(CRL) 249/2019] on 28.01.2022. The facts of the case are that a complainant was lodged by the CBI against four accused namely Moin Akhtar Qureshi, Aditya Sharma, Pradeep Koneru and A.P. Singh and other unknown persons/public servants. The petitioner was not named in the RC however, was summoned as witness number of times. The lookout circular (LOC) qua the two named accused in the FIR, i.e. Moin Akhtar Qureshi and Pradeep Koneru was quashed by the Court however, it subsisted qua the petitioner. The petitioner for the purpose of his business used to often travel overseas. Between October, 2017 to October, 2018 the petitioner joined the investigation with the respondent approximately 9-10 times however, when he was at the immigration at Hyderabad Airport on 25th September, 2019 he was stopped because a LOC had been opened against him. The petitioner’s counsel contended that a complainant in FIR was lodged by the CBI despite the fact that the petitioner was a victim. The LOC was opened in a most casual manner without following the principles of law laid down by this Court. It was further contended that even if the petitioner is required for investigation, the same does not permit the investigating agency to destroy the personal freedom of a citizen. The respondent’s counsel contended that the arguments of the learned counsel for the petitioner states that even though no charge-sheet has been filed however, the petitioner is required for the purpose of investigation. It was submitted that no prejudice has been caused to the petitioner due to the LOC, as the petitioner has travelled abroad after seeking necessary permission from the competent Court. It is further stated that the LOC of the two named accused Moin Akhtar Qureshi and Pradeep Koneru was quashed subject to stringent conditions. Considering the facts and circumstances, the petition was dismissed as the plaintiff neither deliberately evaded arrest nor failed to appear before the Trial Court despite the non-bailable warrants nor has any coercive action been taken against him and he has travelled abroad number of times with the permission of the Court, which concession he did not misuse. Hence, the respondent was directed to recall its request for opening the LOC against the petitioner. It was observed by the Court, “If the above-noted FIR would have to be conducted together in terms of Section 45 of the Prevention of Money Laundering Act, 2002, then petitioner would be bound to seek permission before travelling abroad”.

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 7th January 2022 Decided on: 28th January 2022 W.P.(CRL) 249 2019 SHRI SATHISH BABU SANA Petitioner Represented by: Mr.Siddharth Aggarwal Sr.Advocate with Ms.Stuti Gujral Mr.Sahil Ghai Ms.Rudrali Patil and Mr.Sheikh Bakhtiyar Advocates. CENTRAL BUREAU OF INVESTIGATION Respondent Represented by: Mr.Ripudaman Bhardwaj Spl.P.P. for CBI with Mr.Kushagra Kumar Advocate with Inspector Sushil HON BLE MS. JUSTICE MUKTA GUPTA W.P.(CRL) 249 2019 CRL.M.A.1700 2019By this petition petitioner seeks a writ of certiorari quashing the lookout circularissued by respondent against the petitioner in relation to RC No.224 2017 A 001. Learned counsel for the petitioner contends that the above noted RC was registered against four named accused namely Moin Akhtar Qureshi Aditya Sharma Pradeep Koneru and A.P. Singh and other unknown persons public servants. The petitioner was not named in the RC however was summoned as witness number of times which the petitioner joined. Petitioner was a witness in this case is evident from the fact that his statement was recorded under Section 164 Cr.P.C. Till date W.P.(CRL.) 249 2019 investigation of the respondent is not complete and the petitioner has not been sent as an accused for trial. It is submitted that the LOC qua the two named accused in the FIR i.e. Moin Akhtar Qureshi and Pradeep Koneru have been quashed by the learned Special Court and this Court respectively however it subsists qua the petitioner. It is contended that the petitioner has always cooperated in the investigation and in terms of the decision of the Division Bench of this Court reported as ILR 2010 VI Delhi 706 Sumer Singh Salkan vs. Assistant Director & Ors. and other decisions no ground for opening of the LOC or the continuation thereof is made out. According to the petitioner he is a businessman and has huge investment in India and for the purpose of his business he has to often travel overseas. Between October 2017 to October 2018 the petitioner joined the investigation with the respondent approximately 9 10 times however when he was at the immigration at Hyderabad Airport on 25th September 2019 he was stopped when he came to know that a LOC had been opened against him. It is contended that the petitioner being a victim is a complainant in another FIR lodged by the CBI being RC No.13(A) 2018 CBI AC III despite the fact that the petitioner is a victim and till date neither arrested nor charge sheeted and has joined the investigation the LOC was opened in a most casual manner without following the principles of law laid down by this Court. Even if the petitioner is required for investigation the same does not permit the investigating agency to destroy the personal freedom of a citizen as held by the Hon’ble Supreme Court in the decision reported as 2013SCC 740 Chandran Ratnaswami vs. K.C. Palanisamy. Learned Spl.P.P. for CBI refuting the arguments of the learned counsel for the petitioner states that even though no charge sheet has been W.P.(CRL.) 249 2019 filed however the petitioner is required for investigation. No prejudice has been caused to the petitioner due to the LOC as the petitioner has travelled abroad after seeking necessary permission from the competent Court. It is further stated that the LOC of the two named accused Moin Akhtar Qureshi and Pradeep Koneru was quashed subject to stringent conditions. As per the reply filed by the CBI the abovenoted FIR was registered on the basis of a complaint dated 31st August 2016 received from the Assistant Director Delhi Zonal Office Directorate of Enforcement duly forwarded by the Director of Enforcement alleging that Moin Akhtar Qureshi had been liaisoning and obtaining illegal money from various persons for getting their work done through public servants. Analysis of the records and BBM chat data for the year 2011 to 2013 revels that Moin Akhtar Qureshi had taken huge amount of money from different persons for obtaining undue favours from the public servants. The chats and messages have revealed that Aditya Sharma received the money on behalf of Moin Qureshi. During the course of investigation role of the petitioner also came up as an accomplice accused for which an arrest proposal was mooted by the investigating agency and LOC was also opened on 16th May 2018 as there was reasonable apprehension that he may abscond from India and may not return back. As per the investigation the petitioner made a payment of ₹1.50 crores to the prime accused Moin Qureshi through his employee Aditya Sharma in November 2012. The petitioner is one of the Directors of Vanpic Ports Pvt. Limited a subsidiary of Vanpic Projects Pvt. Ltd. for which an investigation was going on by the Anti Corruption Branch of CBI Hyderabad and the petitioner was also examined being one of the Directors and in this regard the petitioner made the statement before the Enforcement W.P.(CRL.) 249 2019 Directorate in connection with bail matter of one Sukesh Gupta. This Court in Sumer Singh Salkandealing with a reference on the issues regarding the category of cases in which the investigating agency can seek recourse to LOC under what circumstance the procedure to be followed before opening the LOC the remedy available to the person and the role of the concerned Court answered the issues as under: to be is required followed by The questions raised in the reference are as under: A. What are the categories of cases in which the investigating agency can seek recourse of Lookout Circular and under what circumstances B. What procedure investigating agency before opening a Look out circular C. What is the remedy available to the person against whom such Look out Circular has been opened D. What is the role of the concerned Court when such a case is brought before it and under what circumstances the subordinate courts can intervene The questions are answered as under: A. Recourse to LOC can be taken by investigating agency in cognizable offences under IPC or other penal laws where the accused was deliberately evading arrest or not appearing in the trial court despite NBWs and other coercive measures and there was likelihood of the accused leaving the country to evade trial arrest. B. The Investigating Officer shall make a written request for LOC to the officer as notified by the circular of Ministry of Home Affairs giving details & reasons for seeking LOC. The competent officer alone shall give directions for opening LOC by passing an order in this respect. C. investigation by appearing before I.O. or should surrender before the court concerned or should satisfy the court that LOC was wrongly issued against him. He may also approach the officer who ordered issuance of LOC & explain that LOC was wrongly issued against him. LOC can be withdrawn by the authority that issued and can also be rescinded by the trial court where case is pending or having jurisdiction over concerned police station on an application by the person concerned. D. LOC is a coercive measure to make a person surrender to the The person against whom LOC issued must W.P.(CRL.) 249 2019 investigating agency or Court of law. The subordinate courts jurisdiction in affirming or cancelling LOC is commensurate with the jurisdiction of cancellation of NBWs or affirming NBWs.” LOC was opened by the respondent against Moin Akhtar Qureshi who is admittedly the main accused in the above noted RC who had sought quashing of the LOC and vide order dated 8th August 2018 the learned Special Judge recalled the directions of issuing LOC against him applying the law laid down by this Court in Sumer Singh Salkan 2962 2018 vide order dated 2nd April 2019 directed the respondent to recall the lookout circular inter alia imposing conditions that the petitioner will seek permission of the learned Trial Court before travelling abroad and join the investigation besides provide other details as also imposed the condition to deposit ₹6 crores. The condition of deposit of ₹6 crores was W.P.(CRL.) 249 2019 modified to ₹2 crores vide order dated 21st October 2020 of this Court. As noted above Moin Akhtar Qureshi and Pradeep Koneru are the main accused against whom lookout circulars have been recalled whereas statement of the petitioner in the above noted FIR was recorded under Section 164 Cr.P.C. as a witness. Though in the reply affidavit the respondent claims that the petitioner is an accused however till date neither he has been arrested nor any charge sheet filed against the petitioner. The petitioner was arrested in the ECIR recorded by the Enforcement Directorate wherein while granting bail to the petitioner passport of the petitioner has already been deposited with the Court. Even if the petitioner is charge sheeted in the above noted FIR the trial in the complaint filed by the Enforcement Directorate and the charge sheet filed pursuant to the above noted FIR would have to be conducted together in terms of Section 45 of the Prevention of Money Laundering Act 2002 and the petitioner would be bound to seek permission before travelling abroad. 10. The petitioner thus satisfies the test laid down by this Court in Sumer Singh Salkanas he has neither deliberately evaded arrest nor failed to appear before the Trial Court despite the non bailable warrants nor has any coercive action been taken against him and he has travelled abroad number of times with the permission of the Court which concession he did not misuse and therefore there is no justification in continuing with the LOC opened against the petitioner. Hence the respondent is directed to recall its request for opening the LOC against the petitioner. It is further directed that that the petitioner will continue to join the investigation as and when directed by the Investigating Officer and any condition that is imposed by the learned Special Judge in the complaint lodged pursuant to the ECIR W.P.(CRL.) 249 2019 when the petitioner seeks permission to travel abroad will also be applicable in the abovenoted RC No.224 2017 A 001 till the charge sheet is filed and thereafter if the petitioner is charge sheeted and summoned as an accused. 11. Petition and application are accordingly disposed of. 12. Order be uploaded on the website of this court. JANUARY 28 2022 MUKTA GUPTA) W.P.(CRL.) 249 2019

Extra Judicial Confessions should be proved like any other facts and in accordance with the law. : Orissa High Court

When the prosecution heavily relies on a purported extrajudicial confession given by the defendant:  (i) An extrajudicial confession is insufficient proof on its own. The court must study it with extra attention and caution.  (ii) It should be given voluntarily and truthfully.  (iii) It should instil trust.  (iv) If an extrajudicial confession is supported by a chain of credible circumstances and is further corroborated by other prosecution evidence, it has additional credibility and evidentiary value.  (v) In order for an extrajudicial confession to be used as the foundation for a conviction, it must be free of material inconsistencies and inherent improbabilities. (Vi) The statements must be proven like other facts These few points were made by Justice Kumari.K.Panda and Justice S.K.Panigrahi of the Orissa High Court in matter of Dama Pradhani versus State of Orissa [ CRLA No.36 of 2011]  The order was passed regarding the facts the substratum of the case placed before us, stripped of superfluous information, remains that one Rama Dharua’s (informant) niece Ghulikhai @ Nidra Majhi has been staying with him for the past eight years after the death of her mother. The family ate dinner and went to bed on December 1, 2008. The family discovered their niece missing early in the morning, much to their dismay. They explored the hamlet and questioned their relatives, but they were unable to locate their niece. As a result, on December 2, 2008, the informant reported the incident to the police, and a FIR was filed. On the night of December 3, 2008, his son-in-law, Dullabha Majhi, who was staying with the informant owing to the harvesting season, told him that one Dama Pradhani (appellant) of his village had confessed to him that he had murdered the deceased and hid the body. As a result, the informant accused Dama Pradhani of murdering the dead and informed the authorities. The I.I.C., Patnagarh P.S. registered the P.S. Case No.239/2008 under Section 302 read with Section 201 of the I.P.C. based on the aforementioned written report of the informant. The Investigating Officer went to the village during the course of the investigation and arrested the appellant. The appellant allegedly admitted to strangling the deceased and concealing the body in Gadiajore Nala while in police custody. The body of the deceased was discovered floating upon arrival at the Gadiajore Nala and was quickly collected. An inquest was held. The deceased’s body, as well as a lungi found tied around her neck, were sent for post-mortem testing.The appellant was also sent to the hospital for a medical checkup, during which a sample of his sperm was taken. After that, the appellant was arrested and taken to court. The Investigating Officer also took possession of the deceased’s clothing, as well as other belongings and the lungi. A charge sheet was filed against the defendants when the inquiry was completed. The appellant’s counsel contends that there was no eye witness to the incident and that the prosecution’s case is exclusively based on circumstantial evidence. The prosecution has failed to present coherent and trustworthy evidence to show the circumstances beyond reasonable doubt, despite the fact that the extrajudicial confession led to the discovery of the deceased corpse. He claims that P.W.9, the witness before whom the accused allegedly gave the extrajudicial confession, is linked to the deceased. The location where the body was discovered is an open area that is open to the public. As a result, the evidence presented on the above score loses its weight. The learned Counsel for the State has argued that the Medical Officer’s report (Exhibits 5 and 6) demonstrates that the deceased died of homicide as a result of lung strangulation (M.O.IX). He also relied on the testimony of P.W.9, in front of whom the accused supposedly confessed. He further claims that the recovery of a dead corpse from the hiding site, as well as the M.O.IX obtained under Section 27 of the Evidence Act, thoroughly corroborates the prosecution’s case, leaving no doubt that the accused is the perpetrator of the crime. Court considered Ramreddy Rajesh Khanna Reddy v. State of Andhra Pradesh, where the Hon’ble Supreme Court held that , It is now well-settled that, in order to base a conviction on circumstantial evidence, the prosecution must establish all of the pieces of incriminating circumstances by reliable and clinching evidence, and the circumstances so proved must form such a chain of events as to permit no other conclusion than that the defendant is guilty. There is no alternative explanation for the situation. It is widely established that suspicion, no matter how grave, cannot substitute for proof, and that courts must exercise extreme discretion in convicting an accused only on the basis of circumstantial evidence. 

Dama Pradhani vs State Of Orissa on 12 April 2021 Orissa High Court Dama Pradhani vs State Of Orissa on 12 April 2021 HIGH COURT OF ORISSA: CUTTACK CRLA No.311 Balangir at Patnagarh in Sessions Case No.80 309 Dama Pradhani ... Appellant Versus State of Orissa ... Respondent For Appellant :M s. B.S. Das D. Marandi L.C. Behera and S. Sahoo Advocates For Respondent : Mr. Sk. Zafarulla Additional Standing Counsel PRESENT THE HONOURABLE KUMARI JUSTICE S. PANDA AND HON BLE SHRI JUSTICE S. K. PANIGRAHI Date of Hearing 16.03.2021 Date of judgment 12.04.2021 S. K. Panigrahi J 1. The present appeal has been directed against the judgment of conviction and order of sentence dated 08.07.2010 passed by the learned Adhoc Additional Sessions JudgeBalangir at Patnagarh in Sessions Case No.80 309 whereby the appellant has been convicted for commission of offences punishable under Sections 302 201 of the I.P.C. and sentenced to undergo imprisonment for life and to pay a fine of Rs.2 000 and in default further to undergo R.I for a period of six months under Section 302 of I.P.C. and to undergo R.I. for two years and to pay a fine of Rs.1 000 . Upon further default to undergo R.I. for three months under Section 201 of the 2. Shorn of unnecessary details the substratum of the matter presented before us remain that one Rama Dharua sniece Ghulikhai @ Nidra Majhi was staying with him after the death of her mother for the last eight years. On 01.12.2008 the family had dinner and retired to bed. Early in the morning to the utter dismay of the family they found that their niece was missing. They searched in the village and inquired with their relatives but failed to trace the whereabouts of their niece. Accordingly on 02.12.2008 the informant reported the same to the police and an FIR was registered. On the night of 3.12.2008 his son in law one Dullabha Majhi who was living with the informant due to the harvesting season confided him that one Dama Pradhaniof his Indian Kanoon Dama Pradhani vs State Of Orissa on 12 April 2021 village had confessed before him that he had committed the murder of the deceased and concealed the dead body. The informant therefore suspected Dama Pradhani to have murdered the deceased and passed on the information to the Police. Premised on the above written report of the informant the I.I.C. Patnagarh P.S. registered the P.S. Case No.239 2008 under Section 302 read with Section 201 of the I.P.C. During the course of investigation the Investigating Officer proceeded to the village and took the appellant into his custody. While in police custody the appellant allegedly confessed to have committed the crime by strangulating the deceased and having concealed the dead body in Gadiajore Nala. Upon arrival at the Gadiajore Nala the body of the deceased was found floating and the same was immediately recovered. Inquest was conducted. The body of the deceased along with a lungi that was found tied around her neck was sent for post mortem examination. The appellant was also sent for medical examination where a sample of his semen was seized. The appellant was then arrested and forwarded to the court. The Investigating Officer also effected seizure of items of clothing of the deceased along with other articles and the lungi. After completion of investigation charge sheet was submitted against the accused 3. The trial court thereafter framed three issues. Further to bring home the charges the prosecution examined as many as eighteen witnesses. Succinctly P.Ws.1 4 and 5 are the co villagers and witnesses to the disclosure statement of accused under Section 27 of the Evidence Act made to the Investigating Officer as well as witnesses to the inquest. P.Ws.2 3 and 6 are the co villagers present at the time of recovery of the dead body from the Gadiajore Nala. Thus P.W.1 to P.W.6 are co villagers and witnesses to either the disclosure statement of the accused or to the recovery of the deceased s body from the Gadiajore Nala. The said P.Ws.2 and 6 brought out the dead body from inside the water of the Nala on the instruction of the police. P.W.7 is the informant who is the uncle of the deceased. P.W.9 is the son in law of the informant and witness to extra judicial confession of the accused. P.W.8 is the Medical Officer who conducted the post mortem examination of the dead body. P.Ws.11 and 12 are two independent witnesses who were declared hostile. P.Ws.10 and 13 are the police officers and witnesses to the seizure of S.D. Entry No.308 and M.M.R. No.19 08 of Patnagarh P.S. P.W.14 is the scribe of the reportExtra judicial concession made by the accused before P.W.9.Recovery of dead body of deceased along with lungiby means of which the deceased was strangulated on the information furnished by the accused while in custody Evidence of P.W.1 that the seized lungi belongs to accused so also the evidence of the I.O. P.W.17 that accused disclosed the lungi belongs to him Motive. While doing so the trial court has proceeded to hold that these circumstances establish a complete chain of circumstances which prove beyond reasonable doubt that the appellant has committed the murder of the deceased 7. Upon perusal of the evidence produced before the trial court with regard to the first circumstance i.e. the extra judicial confession indicated hereinabove the evidence of P.W.9 has been relied upon. It is observed that P.W.9 states that he being the son in law of the informant happened to be present in the house of the informant for the purpose of harvesting paddy since more man power is required during such harvesting season. According to him the deceased was missing from the house since the morning of 02.12.2008. On 03.12.2008 at the evening time while he was sitting in the verandah he saw the appellant coming towards him. He chit chatted with the appellant about household affairs and then asked about the deceased. The appellant then disclosed to him that after committing her murder he had concealed the dead body. P.W.9 also states that the appellant confessed that he had love affair with the deceased. On the same night after dinner P.W.9 disclosed the above information before his mother. According to P.W.9 the brother of appellant is a sworn friend of his father in lawand he addressed him as uncle. During cross examination this witness has stated that since eight days prior to the incident he was at the Indian Kanoon Dama Pradhani vs State Of Orissa on 12 April 2021 house of his father in law and he knows the appellant since the date of his marriage as the appellant used to visit the house of his father in law. When the appellant had visited P.W.9 the witness was admittedly alone. In a similar light P.W.7 the informant who is the father in law of P.W.9 reveals that on 2.12.2008 he had lodged a missing report at Patnagarh P.S. regarding the missing of deceased. On the night of 03.12.2008 P.W.9 told him regarding the extra judicial confession made by the appellant before him. His evidence further reveals that on the morning of 04.12.2008 they searched for the dead body of the deceased and could not recover the same. P.W.7 further deposed that the appellant had love affairs with the deceased 8. Upon examining the position of law regarding extra judicial confessions it is relevant to take note of the judgment of the Hon ble Supreme Court in the case of Tejinder Singh v. State of Punjab1wherein the Court has held that extra judicial confessions constitute a weak form of evidence and based on such evidence no conviction can be sustained. In support of this proposition the Hon ble Supreme Court has relied upon its earlier judgement in the case of Pancho v. State of Haryana2 which is extracted hereunder 16. The extra judicial confession made by A 1 Pratham is the main plank of the prosecution case. It is true that an extra judicial confession can be used against its maker but as a matter of caution courts look for corroboration to the same from other evidence on record. In Gopal Sah v. State of Bihar this Court while dealing with an extra judicial confession held that an extra judicial confession is on the face of it a weak evidence and the courts are reluctant in the absence of a chain of cogent circumstances to rely on it for the purpose of recording a conviction. We must therefore first ascertain whether the12 SCC 503The extra judicial confession is weak evidence by itself. It has to be examined by the court with greater care and caution ii) It should be made voluntarily and should be truthful iii) It should inspire confidence iv) An extra judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other 2012) 6 SCC 403 v) For an extra judicial confession to be the basis of conviction it should not suffer from any material discrepancies and inherent improbabilities vi) Such statement essentially has to be proved like any other fact and in accordance with law 10. From the above evidence of P.Ws.9 and 7 it is noticed that the appellant was known to P.W.9 since the date of his marriage and on 3.12.2009 evening the accused had come to meet him. Another fact that needs to be borne in mind is that P.W.9 is related to deceased. So it does not seem plausible that the appellant would have made such an extra judicial confession before him and such doubts upon the reliability of the evidence of P.W.9 cannot be dispensed with. As a corollary the evidence of P.W.7 who is a hearsay witness would consequentially loose credence. This extra judicial confession does not inspire any confidence and therefore cannot be relied upon. Given the fact that there was no enmity between the appellant and neither P.W.9 nor the appellant had any inimical term with the family member of the informant. So in such circumstances the fact that the appellant made an extra judicial confession made before P.W.9 seems improbable and any corroboration thereof would have to be tested on the anvil of "complete chain of circumstances" which must be examined very cautiously 11. The next circumstance relied upon by the learned Trial Court is the recovery of the dead body of deceased and M.O. IXon the basis of the information furnished by the appellant while in custody 12. On perusal of record it is found that Ext.2 is the statement of appellant which was recorded by P.W.17 the I.O. in presence of P.Ws.4 and 5 i.e. co villagers while the appellant was in his custody In the said statement the appellant has narrated that he had an affair with the deceased and they had made a plan to elope from their respective houses on the fateful night. He also states that he committed the murder by strangulating the deceased by means of a lungi and carried the dead body Indian Kanoon Dama Pradhani vs State Of Orissa on 12 April 2021 to Gadiajore Nala and concealed it there. Ext.1 is the inquest report which was prepared by the I.O in presence of witnesses P.Ws.1 3 4 5 and 6. In the said report it has been mentioned that a green colour check lungi was tied around the neck of the deceased and there was injury ligature mark encircling the neck. Ext 9 is the seizure list in respect of seizure of the wearing apparels and other articles including the green black check lungi 13. In Jaffar Hussain Dastagir v. State of Maharashtra4 the Hon ble Supreme Court held that under Section 25 of the Evidence Act no confession made by an accused to a police2 SCC 872 officer can be admitted in evidence against him. An exception to this is however provided by Section 26 of the Evidence Act which makes a confessional statement made before a Magistrate admissible in evidence against an accused notwithstanding the fact that he was in the custody of the police when he made the incriminating statement. Section 27 of the Evidence Act is a proviso to Section 26 of the Evidence Act and makes admissible so much of the statement of the accused which leads to the discovery of a fact deposed to by him and connected with the crime irrespective of the question whether it is confessional or otherwise. The essential ingredient of the Section is that the information given by the accused must lead to the discovery of the fact which is the direct outcome of such information. Secondly only such portion of the information given as is distinctly connected with the said recovery is admissible against the accused. Thirdly the discovery of the fact must relate to the commission of some offence. Section 27 of the Evidence Act provides that no such information which leads to discovery of fact in consequence of information received from a person who is not only an accused of the offence but also while in the custody of the police officer can become a relevant fact which can be proved. It is trite in law that the confessional part of a crime incorporated in a statement even if recorded in the statement under Section 27 of the Evidence Act such confessional part has to be discarded due to being barred by the provision in Section 25 of the 14. Therefore even if it can be accepted that the statement of the appellant led to the discovery of the body of the deceased and hence might be admissible it is important to note that only that part of the statement which led to the discovery of the body of the deceased can be admitted. Every other information presented in the statement which are inculpatory and confessional including the confession of allegedly committing the offence the alleged usage of the lungi to commit said offence the existence of the love affair have to be completely barred and cannot be relied upon under any circumstances. That being the position of law from Exhibits 2 1 and 9 only the fact leading to discovery of dead body is to be read in evidence 15. It is further seen that doubt is casted upon the usage of the lungi as the means by which the deceased was strangulated upon examination of P.W.8 s testimony. P.W.8 is the doctor who conducted the post mortem examination of the dead body of the deceased on 05.12.2008 upon police requisition. He has deposed that the deceased was a young female whose both pinna were eaten by aquatic animals. The deceased s face was conjected with petechia haemorrhage. A lungi of length 5.7" and width 42" was made into a rope and found tied around the neck. The knot of the lungi was on the back side of the neck. A ligature mark of width 2 C.M. was found below the thyroid cartilage encircling the entire neck horizontally. There was ecchymosis around the mark and the subcutaneous tissue was also with ecchymosis. There was no fracture present on the body. The Indian Kanoon Dama Pradhani vs State Of Orissa on 12 April 2021 viscera were preserved. He has opined that the death was due to strangulation by lungi resulting in asphyxia and venus congestion. He has further opined that as the vagina allowed two fingers the same indicates that the deceased had regular sexual intercourse. He states that the time since death was within 72 to 96 hours prior from the time of post mortem examination. He also deposed that the ligature mark found in the neck was ante mortem in nature and the strangulation was a homicidal one. However this witness during the cross examination has presented an entirely different picture. During his cross examination P.W.8 has ruled out the death of deceased to be caused due to hanging. Rather he reiterated his opinion that the death of the deceased is due to strangulation. Also he has stated that the lungi which was allegedly found on the neck of dead body at the time of post mortem examination was sent back to the Police. What is taken note of by us is that he states in his cross examination that there was no identifying mark affixed to the lungi in question with regard to which he states that he had endorsed on a piece of paper after signing on the lungi. In his cross examination P.W.8 also states that it is possible that the ligature mark found on the neck could also be inflicted by some other cloth having a length similar to the lungi which was examined He further reveals that the type of injury in question can be caused by shaping any cloth into a rope all of which will leave a ligature mark 16. While it is not disputed that the body of the deceased was found with a green check lungi tied around the neck. There exists sufficient doubt as to whether it was this particular lungi that caused the death. Moreover it becomes even more important to examine whether the lungi can be linked to the appellant which has been examined threadbare 17. Coming to the next circumstance regarding identification of lungi tied around the neck of the dead bodyis concerned it is the evidence of P.W.1 wherein he says the lungi tied round the neck of the deceased belonged to the appellant. P.W.17 was the Investigating Officer in the case and states during his cross examination that at the time of interrogation the appellant had made a disclosure to having concealed the dead body after strangulating the deceased. Having received such a statement P.W.17 thereafter proceeded to the place as disclosed by the accused i.e. Gadiajore Nala. He noticed that there were no marks of violence at the place of occurrence the threshing floor Noticeably the place of occurrence has been said to be a public place which is accessible to all. The dead body was floating at the time of arrival of the Investigating Officer in the Gadiajore Nala. He further deposed that M.O.IX is a green lungi which was found shaped like a rope and tied around the neck of the deceased. He states that the appellant disclosed to him during interrogation that the green lungi belonged to him which has been exhibited as M.O. IX and it was being used by the appellant prior to the date of the incident. P.W.8 reveals in his testimony that when the dead body was recovered a green check lungi was found tied around the neck of the deceased. Apart from the prosecution s version that the accused has admitted that the lungi in question belonged to him a statement which as has been established above cannot be admitted as evidence and thus cannot be relied upon sufficient evidence has not been led whatsoever to establish or link the lungi with the 18. As regards the motive of the appellant behind the crime it is the case of the prosecution as disclosed by P.W.7 that the appellant and deceased had a love affair and when marriage of the appellant was arranged with another girl ire was caused between them due to which the appellant Indian Kanoon Dama Pradhani vs State Of Orissa on 12 April 2021 killed the deceased. P.W.1 deposed attesting to the same. However upon perusal of the defence witness in this case D.W.1 who is a co villager who states that the P.W.1 told him that there was a love affair between the deceased and the appellant which he had informed the police about However in his cross examination he states that there was no such marriage proposal being canvassed. It is also material to note that P.W.1 has stated in his cross examination that he was not aware about the relationship of the appellant with the deceased prior to the incident which is a material discrepancy which has not been gone into by the court below. P.W.4 Chandrama Majhi has also categorically stated in her cross examination that she was not aware about any love affair between the appellant and the deceased 19. The prosecution had relied on the report of chemical examiner marked as Ext 19 wherein it is noted that the seized undergarment of the deceased indicated presence of blood and semen which was deemed to be indicative of a physical relationship being present between the appellant and the deceased. The prosecution then attempted to spin a story wherein it was alleged that the deceased was unhappy with the talks of marriage of the appellant with another girl given their physical relationship which led to the scuffle and ultimately to her death. However the trial court has ignored that P.W.17 as the Investigating Officer of the present case also wrote a letter to the forensic laboratory dated 4.12.2008 suggesting therein that the appellant had sexual intercourse with the deceased on the way at the threshing floor of Buthi Dharua of the village and thereafter the appellant had tied the lungi on the neck of the deceased strangulating her causing death. Based on that suspicion the Investigating Officer had sent the underwear of the accused for forensic examination. However the forensic laboratory through their report dated 2.4.2009 have opined that an examination of the underwear of the accused shows the absence of semen stains on it and therefore the possibility of any intercourse was ruled out 20. In the instant case there are no eye witness to the occurrence and prosecution case solely rests on the circumstantial evidence.In the case of Sharad Birdhichand Sarda v. State of Maharashtra5 the Hon ble Supreme Court had laid down indicative parameters to keep in mind while dealing with cases where the prosecution version is based solely on the basis of circumstantial evidence. It has held that the following conditions must be fulfilled before a case against the accused can be said to be fully established. Namely the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned `must or `should and not `may be established the facts so established should be consistent only with the hypothesis of the guilt of the accused that is to say they should not be explainable on any other hypothesis except that the accused is guiltythe circumstances should be of a conclusive nature and tendencythey should exclude every possible hypothesis except the one to be proved andthere must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. The Hon ble Supreme Court has held these five golden principles as the "panscheel of the proof of a case based on circumstantial evidence. Although the court below has relied upon the aforesaid judgement however while AIR 1984 SC 1622 dealing with the evidence on record as discussed hereinabove has ignored and misapplied the aforesaid principles laid down by the Hon ble Supreme Court Indian Kanoon 21. The Hon ble Apex Court In the case of Chenga Reddy and Ors Dama Pradhani vs State Of Orissa on 12 April 2021 v. State of A.P.6 has dealt with a case where suspicion has been allowed to take the place of reason and has held in no uncertain terms that 21. In a case based on circumstantial evidence the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In the present case the courts below have overlooked these settled principles and allowed suspicion to take the place of proof besides relying upon some inadmissible evidence 22. In the oft quoted and relied upon landmark decision of Hanumant v. State of Madhya Pradesh7 the Hon ble Supreme Court while dealing with circumstantial evidence said that the rules especially applicable to such evidence must be borne in mind. It held that in such cases there is always the danger that conjecture or suspicion may take the place of legal proof. It warned of the dangers of such a practice by recalling10 SCC 193 1952 SCR 1091 the warning addressed by Baron Alderson to the jury in Reg v. Hodge8 where he submitted that : The mind was apt to take a pleasure in adapting circumstances to one another and even in straining them a little if need be to force them to from parts of one connected whole and the more ingenious the mind of the individual the more likely was it considering such matters to overreach and mislead itself to supply some little link that is wanting to take for granted some fact consistent with its previous theories and necessary to render them complete 23. In Hanumant Singh s casethe Hon ble Supreme Court has held that in cases where the evidence is of a circumstantial nature the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again the circumstances should be of a conclusive nature and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused 24. In the case of Padala Veera Reddy v. State of Andhra Pradesh9 the Hon ble Supreme Court has held that:2 Lew. 227 "10. Before adverting to the arguments advanced by the learned Counsel we shall at the threshold point out that in the present case here is no direct evidence to connect the accused with the offence in question and the prosecution rests its case solely on circumstantial evidence. this Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests Indian Kanoon Dama Pradhani vs State Of Orissa on 12 April 2021 1) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established 2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else andthe circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence 25. In the case of Ramreddy Rajesh Khanna Reddy v. State of Andhra Pradesh10 the Hon ble Supreme Court has held that 26. It is now well settled that with a view to base a conviction on circumstantial evidence the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion however grave may be cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence 26. P.W.9 was the son in law of the informant and also related to the deceased. He has also stated that he knew the appellantSupp 2 SCC 70610 SCC 172 well and for a long time P.W.9 s statement pertaining to the extra judicial confession made by the appellant does not inspire any confidence as it is highly unlikely that the appellant would make such a statement to a relative of the deceased. Furthermore if such information had a ring of truth to it or if the P.W.9 had assumed it to be true then he would have immediately confided in the informant or another member of the family upon receiving the same instead of waiting till post dinner. Furthermore in the absence of credible and cogent proof of a love relationship between the appellant and the deceased the intent and motive of the appellant to commit the murder of the deceased is not clear or proven beyond reasonable doubt. Doubt is also cast upon the means of causing death of the deceased when the cross examination of P.W.8 is referred to. The Doctor conducting the post mortem examination of the deceased has not definitively indicated that the death of the deceased was caused by the lungi that was recovered itself instead he has said that any cloth could have caused the death. The lungi in itself has also not been linked to the appellant. The trial court has also erred by not considering that despite the viscera being preserved according to the evidence of P.W.8 the same was not sent for chemical examination and no reason has been assigned for the same 27. With the above backdrop and discussion this Court comes to an irresistible conclusion that the prosecution has not been successful in bringing home the charges against the appellant beyond reasonable doubt and that the Court below has grossly failed to deal with the evidence in proper Indian Kanoon Dama Pradhani vs State Of Orissa on 12 April 2021 28. In view of the discussion made hereinabove especially in the absence of eye witnesses and the weak chain of circumstantial evidence the order of conviction and sentence impugned herein are liable to be set aside 29. Accordingly the Criminal Appeal filed by the appellant is allowed. The judgment of conviction and order of sentence dated 08.07.2010 passed by the learned Adhoc Additional Sessions Judge Fast Track Court) Balangir at Patnagarh in Sessions Case No.80 309 is hereby set aside The appellant be set at liberty forthwith if his detention is not required in connection with any other The LCR be returned forthwith to the court from which it was received S.K. Panigrahi J.) S. Panda J. I agree S. Panda J.) Orissa High Court Cuttack The 12th day of April 2021 AKK LNB Indian Kanoon

Sole Arbitrator Cannot Be Appointed Solely By One Party: High Court Of New Delhi

The petitioner had filed the present petition under the provisions of Section 15 of the Arbitration and Conciliation Act, 1996 seeking substitution of appointed sole Arbitrator, and the same issue was held in the judgement passed by a Single bench judge HON’BLE MR. JUSTICE SURESH KUMAR KAIT, in the matter GIRDHAR IMPEX LIMITED  V.  A AND A AUTOMOBILES PVT LTD. dealt with an issue mentioned above. In this case, the petitioner was the owner of the property bearing plot no. E-7, Sector 63, Noida, Phase-HI, District Gautam Buddha Nagar, U.P., admeasuring 1950 sq. mtrs, where the property was let out on rent to the respondent under a duly registered Lease Deed dated 15.11.2019. The petitioner being deprived of his right to physical possession of the O.M.P. (T) (COMM.) 95/2021 demised premises and also the arrears of rent, approached this Court under Section 9 of the Arbitration and Conciliation Act, 1996, later Court disposed of the said petition and granted interim relief in favour of petitioner vide order dated 27.01.2021. The later petitioner approached this Court under Section 11 of the Arbitration and Conciliation Act, 1996 for the appointment of Sole Arbitrator and vide order dated 24.03.2021, this Court appointed Mr Justice (Retd.) B.D. Ahmad sole Arbitrator. However, the learned Arbitrator has rescued himself from the case and terminated his mandate vide order dated 16.06.2021. During the hearing, learned counsel for parties agreed for O.M.P. (T) (COMM.) 95/2021 appointment of substituted sole Arbitrator by this Court to adjudicate the disputes between the parties. Accordingly, Mr Justice (Retd.) P.K. Bhasin (Mobile 9871300032) is appointed sole Arbitrator to adjudicate the dispute between the parties. The court perused the facts and argument’s presented, it thought that- “The learned Arbitrator shall ensure compliance of Section 12 of Arbitration and Conciliation Act, 1996 before commencing the arbitration. The petition is accordingly disposed of”.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 11.11.2021 O.M.P.(COMM.) 95 2021 GIRDHAR IMPEX LIMITED Petitioner Through Mr. Farrukh Khan and Mr. Pradeep Singh Jassal Advs. A AND A AUTOMOBILES PVT LTD Through Mr. Shashank Aggarwal Adv. Respondent HON BLE MR. JUSTICE SURESH KUMAR KAIT JUDGMENT For adjudication of disputes with respondent petitioner has filed the present petition under the provisions of Section 15 of the Arbitration and Conciliation Act 1996 seeking substitution of appointed sole Arbitrator. Petitioner is the owner of the property bearing plot no. E 7 Sector 63 Noida Phase HI District Gautam Buddha Nagar U.P. admeasuring 1950 sq.mtrs. which was let out on rent to the respondent under a duly registered Lease Deed dated 15.11.2019. The said Lease Deed has been terminated on account of the breaches committed by the respondent. Petitioner being deprived of his right to physical possession of the O.M.P.(COMM.) 95 2021 demised premises and also the arrears of rent approached this Court under Section 9 of the Arbitration and Conciliation Act 1996 in O.M.P. Comm.) No.1 of 2021 and this Court disposed off the said petition and granted interim relief in favour of petitioner vide order dated 27.01.2021. Thereafter petitioner approached this Court under Section 11 of the Arbitration and Conciliation Act 1996 for appointment of Sole Arbitrator and vide order dated 24.03.2021 this Court appointed Mr. Justice B.D. Ahmad sole Arbitrator. However later the learned Arbitrator has rescued himself from the case and terminated his mandate vide order dated 16.06.2021 and the reasons thereof are reproduced as below : “ The matter was fixed for consideration of the Claimant’s application under Section 17 of the Arbitration and Conciliation Act 1996. However the learned counsel for the Respondent in the meanwhile filed an application with regard to alteration of the fees which had been fixed with the consultation of the parties on the counsel Since I would not like to get involved in this controversy I deem it appropriate to withdraw from my office as a Sole Arbitrator. The parties are at liberty to appoint a substitute arbitrator in accordance with law. It is also pertinent to note that the Arbitral Tribunal has not received any payment towards fees or expenses from the parties.” During the course of hearing learned counsel for parties agreed for O.M.P.(COMM.) 95 2021 appointment of substituted sole Arbitrator by this Court to adjudicate the disputes between the parties. Accordingly Mr. JusticeP.K. Bhasinis appointed sole Arbitrator to adjudicate the dispute between the parties. The fee of the learned Arbitrator shall be governed by the Fourth Schedule of the Arbitration and Conciliation Act 1996. The learned Arbitrator shall ensure compliance of Section 12 of Arbitration and Conciliation Act 1996 before commencing the arbitration. The petition is accordingly disposed of. 10. A copy of this order be sent to the learned Arbitrator for information. SURESH KUMAR KAIT) JUDGE NOVEMBER 11 2021 O.M.P.(COMM.) 95 2021

Appointment could not be denied on the ground that other dependents of the deceased person who died in harness was already in employment.: Manipur High Court

It is settled that in all claims for appointment on compassionate grounds, there should not be any delay in appointment as upheld by the High Court of Manipur through the learned bench led by Justice M.V. Muralidaran in the case of Shri W. Jico Singh v. The State of Manipur (W.P.(C) No.611 of 2019) The facts of the case are that the father of the petitioner, Tikendrakumar died-inharness on 19.6.2005 and the petitioner is one of the dependents to his deceased father and also unmarried living with his brother and rest of the family members are settled and supported by his mother at another place. After the death of his father, the petitioner applied for appointment under the compassionate grounds on 29.8.2005 under die-in-harness scheme. The respondent authorities rejected the application of the petitioner on the ground that it was applied during the time when the scheme was banned on 15.6.2002 through the office letter dated 1.9.2005. Later the scheme was lifted and restored on 16.12.2006 stating that the families who died-in-harness during the period from 15.6.2002 upto the date of restoration will be covered under the scheme with immediate effect. According to the petitioner, since he was unaware of the office memorandum, the petitioner approached the respondent as soon as it came to his knowledge with a representation dated 10.7.2007 and again on 21.4.2017 to consider the application. However, the said application was rejected by the fourth respondent through an order dated 18.4.2012 stating that the petitioner cannot further claim under die-in-harness scheme. Further case of the petitioner is that since the authority handled the matter technically rather than on humanistic and compassionate grounds, he filed W.P.(C) No.319 of 2017 praying for consideration of appointment under compassionate ground on 3.5.2017 and by an order dated 11.6.2018, the said writ petition was disposed of by directing the State respondents to consider for appointment under die-in-harness scheme as per rules. Subsequently, the petitioner sent a legal notice on 20.6.2018 to abide by the order dated 11.6.2018 passed in the said writ petition. In response to the said legal notice, an order dated 6.9.2018 was issued by the third respondent rejecting the application of the petitioner. Challenging the same, the petitioner has filed the present writ petition. Respondent Nos.3 and 4 filed affidavit-in-opposition stating that since the petitioner himself affirmed that the mother of the petitioner i.e., wife of the deceased Government employee was serving as a regular Assistant Teacher under the Government of Manipur upto 30.6.2012, the petitioner cannot be considered for appointment under die-in-harness scheme. As such, the third respondent passed the impugned order dated 6.9.2018 rejecting the application of the petitioner and therefore, there is no illegality in passing the impugned order. The Hon’ble Court held, “In the case on hand, admittedly, the original application of the petitioner is dated 29.8.2005 and the said application was rejected two times by the respondent authorities, firstly on 1.9.2005 stating ban and secondly on 18.4.2012 stating that the petitioner cannot further claim under die-in-harness scheme. From the materials produced, it is seen that the respondent authorities alone delayed in considering the application of the petitioner for compassionate appointment. For the foregoing discussions, the writ petition is allowed and the impugned order dated 6.9.2018 issued by the third respondent is set aside. The respondent authorities are directed to consider and appoint the petitioner to a suitable post commensurate with his educational qualifications under the die-inharness scheme of the Government of Manipur as per the direction of this Court in W.P.(C) No.319 of 2017, dated 11.6.2018. The said exercise is directed to be completed within a period of four months from the date of receipt of a copy of this order. No costs.”

IN THE HIGH COURT OF MANIPUR AT IMPHAL W.P.(C) No.6119 Through Video Conference) Shri W. Jico Singh aged about 37 years S o W. Tikendrakumar of Chingamakha Irom Leikai Imphal West . Petitioner s Versus 1. The State of Manipur represented by Additional Chief Election) Commissioner Secretary Principal Secretary Govt. of Manipur Imphal 795001. 2. The Additional Secretary Government of Manipur at Babupara Imphal 795001. 3. The Chief Electoral Officer Manipur at Lamphelpat 795004. 4. The Joint Chief Electoral Officer Joint Election Officer Govt. of Manipur at Lamphelpat 795004. …. Respondent s HON’BLE MR. JUSTICE M.V. MURALIDARAN For the Petitioner s Ms. Reena Chongtham Advocate For the Respondent s Mr. Shyam Sharma GA Date of Hearing Judgment & Order W.P.(C) No.6119 JUDGMENT &ORDER This writ petition has been filed by the petitioner seeking to quash the impugned order dated 6.9.2018 passed by the third respondent whereby rejecting the claim of compassionate appointment. The case of the petitioner is that his father Tikendrakumar died in harness on 19.6.2005 and the petitioner is one of the dependents to his deceased father and also unmarried living with his brother and rest of the family members are settled and supported by his mother at another place. After the death of his father the petitioner applied for appointment under compassionate grounds on 29.8.2005 under die in harness scheme. The respondent authorities rejected the application of the petitioner on the ground that it was applied during the time when the scheme was banned on 15.6.2002 through the office letter dated 1.9.2005. Later the scheme was lifted and restored on 16.12.2006 stating that the families who died in harness during the period from 15.6.2002 upto the date of restoration will be covered under the scheme with immediate effect. Consequent to the restoration of the scheme the Department of Personnel and Administrative Reforms issued a memorandum dated 6.6.2007 that all those applications made under the scheme between 15.6.2002 to 16.12.2006 should submit fresh applications within two months from W.P.(C) No.6119 the date of the order. According to the petitioner since he was unaware of the office memorandum the petitioner approached the respondent as soon as it came to his knowledge with a representation dated 10.7.2007 and again on 21.4.2017 to consider the application. However the said application was rejected by the fourth respondent through an order dated 18.4.2012 stating that the petitioner cannot further claim under die in harness scheme. Further case of the petitioner is that since the authority handled the matter technically rather than on humanistic and compassionate grounds he filed W.P.(C) No.319 of 2017 praying for consideration of appointment under compassionate ground on 3.5.2017 and by an order dated 11.6.2018 the said writ petition was disposed of by directing the State respondents to consider for appointment under die in harness scheme as per rules. Subsequently the petitioner sent a legal notice on 20.6.2018 to abide by the order dated 11.6.2018 passed in the said writ petition. In response to the said legal notice an order dated 6.9.2018 was issued by the third respondent rejecting the application of the petitioner. Challenging the same the petitioner has filed the present writ petition. Respondent Nos.3 and 4 filed affidavit in opposition stating that since the petitioner himself affirmed that the mother of the petitioner i.e. wife of the deceased Government employee was serving as a regular Assistant Teacher W.P.(C) No.6119 under the Government of Manipur upto 30.6.2012 the petitioner cannot be considered for appointment under die in harness scheme. As such the third respondent passed the impugned order dated 6.9.2018 rejecting the application of the petitioner and therefore there is no illegality in passing the impugned Assailing the impugned order the learned counsel for the petitioner submitted that the constant and undeterred refusal on the part of the respondent authorities to consider the application filed by the petitioner under die in harness scheme is intentional and deliberate and that the claim of the petitioner should not be dealt with technically by the respondent authorities. The learned counsel further submitted that the grounds on which compassionate appointment sought by the petitioner was heard by this Court earlier in W.P.(C) No.3117 and considering the facts established as to the dire need of the compassion this Court directed the State to consider the application of the petitioner. However by the impugned order the third respondent rejected the application of the petitioner. The learned counsel next submitted that die in harness scheme is welfare policy of the Government to rule out appointments under considerate and compassionate grounds inclined towards the need and circumstances of the W.P.(C) No.6119 dependents. However the State respondents misunderstood such policy and furthermore interpreted it in the wrong way by limiting its scope to mere He would submit the object of the compassionate appointment is to relieve the family of the deceased employee from financial hardship and the employment of other dependents is no bar in providing the relief and therefore the plea raised by the respondents that wife of the deceased was employed at the time of the submission of the application is unsubstantial. In fact the impugned order dated 6.9.2018 has been issued disobeying this Court’s order dated 11.6.2018 passed in W.P.(C) No.319 of 2017 and therefore the impugned order is unsustainable in law and the petitioner has to be considered for giving compassionate appointment. Per contra the learned counsel for the respondent State submitted that the benefit of the die in harness scheme will apply only to those families of the deceased Government servant where none of the member is in Government service. However in the case on hand it is revealed that the mother of the petitioner was serving as regular Assistant Teacher under the Government of Manipur till 30.6.2012 and in fact the petitioner himself stated that his mother was serving as Assistant Teacher upto 30.6.2012. As such the case of the petitioner cannot be considered for appointment under die in harness scheme and therefore there is no wrong in passing the impugned order. W.P.(C) No.6119 This Court considered the submissions raised by the learned counsel appearing on either side and also perused the materials available on The petitioner’s father died on 19.6.2005 and after the death of his father the petitioner submitted an application on 29.8.2005 seeking appointment under die in harness scheme. Since die in harness scheme abolished at the relevant point of time by the order dated 1.9.2005 the application of the petitioner dated 29.8.2005 was rejected. Thereafter the Government restored the die in harness scheme by imposing certain conditions and one of the conditions stipulated is that the families of the Government servant who died in harness during the period from 15.6.2002 up to the restoration of die in harness scheme i.e. 16.12.2006 will also be covered under the scheme with an immediate effect. According to the petitioner he was unaware of the restoration of the scheme and after coming to know the restoration of the scheme he had submitted an application representation on 10.7.2007 seeking appointment to any Government job under die in harness scheme. According to the petitioner despite the receipt of the application representation dated 10.7.2007 the same has not been considered by the authority and in the meanwhile also the petitioner W.P.(C) No.6119 dated 21.4.2017. submitted several representations and the last representation of the petitioner is It appears that by the order dated 18.4.2012 the fourth respondent rejected the application of the petitioner dated 29.8.2005 stating that pursuant to the restoration of the die in harness scheme and the office memorandum dated 6.6.2007 the petitioner did not submit any fresh application and therefore the petitioner cannot claim benefits under die in harness scheme and finally disposes his application dated 29.8.2005 as rejected. The office memorandum dated 6.6.2007 stipulates that all applications submitted in between 15.6.2002 and 16.12.2006 shall be treated as invalid applications and applicants whose applications have been treated invalid as above should submit fresh applications to the concerned Department within two months from the date of issue of the official memorandum. According to the petitioner he came to the knowledge of the official memorandum dated 6.6.2007 only on 10.7.2007 and on 10.7.2007 the petitioner submitted a representation application seeking to appointment him on compassionate ground. The respondent State has not disputed the submission of the representation application dated 10.7.2007 by the petitioner. The order dated 18.4.2012 rejecting the original application of the petitioner dated 29.8.2005 also W.P.(C) No.6119 does not reflect the submission of the application by the petitioner on 10.7.2007 pursuant to the official memorandum dated 6.6.2007. Instead paragraph 7 of the said order says that the petitioner did not submit any fresh application. The said observation made by the fourth respondent in its order dated 18.4.2012 is absolutely incorrect for the simple reason that once the application dated 29.8.2005 was rejected by the fourth respondent vide order dated 1.9.2005 on the ground of ban how the said authority could after a long period of time that too in the year 2012 reject the original application of the petitioner dated 29.8.2005. In this regard there is no proper and convincing explanation forthcoming from the side of the respondent State. It also appears that since the respondent State has not considered the claim of the petitioner and that the authority handled the matter technically rather than on humanistic and on compassionate grounds on 21.4.2017 the petitioner submitted a representation to the fourth respondent requesting for appointment under the die in harness scheme on humanitarian ground and to cancel review the order dated 18.4.2012. Since the respondent State has not taken any action on the representation of the petitioner in considering to give compassionate appointment the petitioner filed W.P.(C) No.319 of 2017 before this Court. The said writ petition was contested by the respondent State by contending that the mother of the petitioner was serving as an Assistant Teacher W.P.(C) No.6119 in Ch. Iboyaima High Schoolmonths from today by informing the petitioner of the steps taken in that regard.” W.P.(C) No.6119 The respondent State has not preferred any appeal against the order dated 11.6.2018 and allowed the order to attain finality. Thus as per the order of this Court dated 11.6.2018 the State respondents are bound to consider the case of the petitioner for appointment under die in harness scheme as per rules and as per the directions of this Court dated 11.6.2018. However the third respondent rejected the claim of the petitioner mainly by stating that the very factum of the mother of the petitioner working in Government service renders that the petitioner cannot be considered for appointment under the die in harness scheme. When this Court dealt with the said issue and observed that there is no one in the family of the petitioner who are serving in the Government on the date of passing of the order and the State respondents allowed the said order to attain finality the third respondent has no authority to reject the claim of the petitioner on the said ground of the mother of the petitioner being working in Government service. Further the respondents are stopped from taking the said plea of mother being working in Government service in this writ petition. Appointment could not be denied on the ground that other dependents of the deceased person who died in harness was already in W.P.(C) No.6119 It is also the observation of the third respondent in its impugned order that the petitioner’s family was not under an immediate financial need warranting a compassionate appointment under die in harness scheme. The said observation of the third respondent is not supported by any material. On the other hand the petitioner has produced a certificate dated 23.3.2020 issued by the Councilor of Singjamei Constituency that the petitioner is indigent. In the said certificate the Councilor has clearly stated that the said certificate has been issued prior observing the state of the petitioner. Thus it is clear that the petitioner’s family is under an immediate financial need. Further the plea of the respondent State that if the scheme is extended to the petitioner it will go against the spirit of the die in harness scheme and will open a flood gate which will be unbearable to the Government. In the given facts and circumstances of the case it cannot be contended that it will go against the spirit of the scheme and will open a flood gate. This Court finds some force in the submission made by the learned counsel for the petitioner that the respondents misunderstood the scheme of the Government and interpreted it in the wrong way by limiting its scope to mere technicalities. That apart the ground on which the compassionate appointment sought by the petitioner was already heard by this Court in W.P.(C) No.319 of 2017 considering the facts established as to the dire need of the compassion. As W.P.(C) No.6119 stated supra when this Court had earlier dealt with the issue and directed to consider the claim of the petitioner the respondent authorities are duty bound to obey the order of this Court. It also appears that the State Government has also issued a official memorandum dated 1.4.2011 relaxing certain conditions as a special case as one time measure so as to enable to dispose for appointment under the die in harness scheme. One of the conditions is to relax the upper age limit and other eligibility criteria for four years period from 15.6.2002 to 16.12.2006. This relaxation will be applicable to the dependants of the Government servant who expired between 15.6.2002 to 16.12.2006. The said relaxation is also applicable to the case of the petitioner as the father of the petitioner died on 19.6.2005. It is settled that in all claims for appointment on compassionate grounds there should not be any delay in appointment. In the case on hand admittedly the original application of the petitioner is dated 29.8.2005 and the said application was rejected two times by the respondent authorities firstly on 1.9.2005 stating ban and secondly on 18.4.2012 stating that the petitioner cannot further claim under die in harness scheme. From the materials produced it is seen that the respondent authorities alone delayed in considering the application of the petitioner for compassionate appointment. W.P.(C) No.6119 Since the third respondent by disobeying the order of this Court dated 11.6.2018 passed in W.P.(C) No.319 of 2017 has issued the impugned order dated 6.9.2018 the same is liable to be set aside. Furthermore the impugned order has been issued deliberately and intentionally to discourage the faith of law and therefore the same is unsustainable in law. For the foregoing discussions the writ petition is allowed and the impugned order dated 6.9.2018 issued by the third respondent is set aside. The respondent authorities are directed to consider and appoint the petitioner to a suitable post commensurate with his educational qualifications under the die in harness scheme of the Government of Manipur as per the direction of this Court in W.P.(C) No.3117 dated 11.6.2018. The said exercise is directed to be completed within a period of four months from the date of receipt of a copy of this order. No costs. through their whatsapp e mail. Registry is directed to issue copy of this order to both the parties Larson W.P.(C) No.6119

Anticipatory bail can be granted in case of Sec-304 B IPC to the parents of the husband if they live separately from the deceased: Patna High Court

Where there is an apprehension of arrest under the allegation of dowry death under Sec-304 B of  IPC upon the parents of the husband can they be granted bail under sec-438 of CRPC? A single-judge bench comprising of Justice Ahsanuddin Amanullah adjudicating in the matter of Mira Devi vs. The State of Bihar (CRIMINAL MISCELLANEOUS No.34640 of 2021) dealt with an issue of whether to grant anticipatory bail u/s-438 of CrPC. The Petitioners were alleged of killing their daughter-in-law. It was submitted that the Petitioners had no role in any wrongdoing and even the death of the deceased was due to natural causes. During the investigation, it was found that the deceased was suffering from mental illness and the post-mortem report was collusive. The Petitioners complained that the doctor who conducted the post-mortem was relieved from performing post-mortem and was transferred. The Petitioners also submitted that they have got separate rations cards from 2008 and it clearly states that the son of the petitioner, i.e. the deceased husband was not living with the Petitioners. The counsel on behalf of the petitioner also submitted that petitioners have no role in the crime and they have been falsely implicated and if even there was some kind of foul-play, they cannot be held responsible in any way for whatever happened as they were living separately from the husband and the deceased. The inquest report as well as the post-mortem report states that there is only a strangulation mark on the neck and there were no antemortem injuries on the body of the deceased. The petitioners contended that if the person would have been forcibly strangulated or hanged, there would be some kind of resistance causing antemortem injuries on the body. No such mark was found on the body, hence it can be established that the petitioners should be exonerated from the liability.

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 346420 Arising Out of PS Case No. 176 Year 2020 Thana RAXAUL District East Champaran 1. Mira Devi @ Meera Devi Wife of Om Prakash Sah @ Om Prakash Prasad Resident of Village Kanana P.S. Raxaul District East Champaran 2. Om Prakash Sah @ Om Prakash Prasad Son of Shivnath Sah Resident of Village Kanana P.S. Raxaul District East Champaran Motihari The State of Bihar ... Petitioner s ... Opposite Party s For the Petitioner s Mr. Md. Anis Akhtar with Mr. Kundan Rathore Advocates Mr. Amitesh Kumar APP For the State CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 25 05 2021 The matter has been heard via video conferencing. 2. Heard Mr. Md. Anis Akhtar learned counsel along with Mr. Kundan Rathore learned counsel for the petitioners and Mr. Amitesh Kumar learned Additional Public Prosecutor hereinafter referred to as the ‘APP’) for the State 3. The petitioners apprehend arrest in connection with Raxaul PS Case No. 176 of 2020 dated 22.05.2020 instituted under Sections 304 B 34 of the Indian Penal Code 4. The allegation against the petitioners who are the mother in law and father in law respectively of the deceased is of killing her Patna High Court CR. MISC. No.346420 dt.25 05 2021 5. Learned counsel for the petitioners submitted that they have no role in any wrong doing and even the death was due to natural causes. It was submitted that during investigation the police have found that the deceased was suffering from mental illness and many other issues which would indicate that the petitioners have been falsely implicated in the case and that even the post mortem report was collusive. Learned counsel submitted that they have filed supplementary affidavit to show that the deceased was not in a fit mental condition for which she was treated at various places. It was further submitted that on the complaint made by the petitioners’ side the doctor who had conducted post mortem was relieved from performing post mortem and transferred somewhere else. Learned counsel submitted that in the year 2008 itself the petitioners had got a separate ration card which would be clear from the fact that in the ration card of the petitioners the name of the husband of the deceased who is the son of the petitioners is not present which indicates that he was not living with the petitioners. It was further submitted that the petitioners’ side has represented both to the Civil Surgeon as well as the District Magistrate against the conduct of the doctor who had conducted the post mortem and enquiry was conducted. It was submitted that the petitioners have Patna High Court CR. MISC. No.346420 dt.25 05 2021 been falsely implicated. Learned counsel submitted that the petitioners have no role and even if there was some foul play as they were separate from the deceased and her husband they cannot be held responsible in any way whatever happened 6. Learned counsel further submitted that from the inquest report as well as the post mortem report it would be clear that there is only strangulation mark found on the neck and no other ante mortem injury on the body of the deceased which clearly indicates that there was no complicity of any other person for the reason that if a person is forcibly strangulated hanged there would be some resistance at least and for that there would be ante mortem marks on the body disclosing that but both at the inquest time as well as during post mortem the doctor has not found any such mark on the body. It was submitted that coupled with the fact that the petitioners are the parents of the husband who was also there death having occurred clearly indicates that the petitioners have no role in the same and most importantly the husband of the deceased i.e. the son of the petitioner is in judicial custody being arrested on the same day 7. Learned APP from the case diary submitted that the allegation against the doctor prima facie appears to be incorrect as far as finding of death due to strangulation has been recorded for Patna High Court CR. MISC. No.346420 dt.25 05 2021 the reason that even in the inquest report which was prepared and signed by different persons not connected to the doctor there is clear finding that the death had occurred due to strangulation However he did not controvert the fact that the inquest report and the post mortem report does not disclose any other ante mortem injury on the body except for the ligature mark on the neck. 8. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties in the event of arrest or surrender before the Court below within six weeks from today the petitioners be released on bail upon furnishing bail bonds of Rs. 25 000 each with two sureties of the like amount each to the satisfaction of the learned SDJM Raxaul Motihariin Raxaul PS Case No. 176 of 2020 subject to the conditions laid down in Section 438(2) of the Code of Criminal Procedure 1973 and further that one of the bailors shall be a close relative of the petitioners andthat the petitioners shall co operate with the police prosecution and the Court. Failure to co operate shall lead to cancellation of their bail bonds 9. It shall also be open for the prosecution to bring any violation of the foregoing conditions of bail by the petitioners to the notice of the Court concerned which shall take immediate Patna High Court CR. MISC. No.346420 dt.25 05 2021 action on the same after giving opportunity of hearing to the 10. The application stands disposed off in the (Ahsanuddin Amanullah J

Complainant failed to establish the deficiency in service on the part of the Opposite Party: Karnataka State Consumer Disputes Redressal Commission

The appellant did not clarify how much he owes on his credit card for the other transactions and did not produce any documents before the District Commission to show that the Opposite Party deducted EMIs even after the transaction was cancelled. Thus, no deficiency on the part of OP could be established. This was observed in the matter of Anwar Ahmed Azmi v. M/s Onemi, AASAAN Retail Pvt. Ltd and M/s HDFC Bank, [A/1484/2019], before Hon’ble Judicial Member, Sri Ravi Shankar and Hon’ble Member, Smt. Sunita C. Bagewadi. The brief facts of the dispute are as follows; the complainant had a credit card from the opposing party/bank and received advertisements for the purchase of different goods together with his credit card statement promoting online shopping through HDFC Bank’s online shopping services. The appellant used his credit card to purchase a KENT water purifier after trusting the advertisement. However, the water purifier was not delivered after it was ordered. The OP contended that, the appellant was a credit card holder and all the relevant facilities were provided to him and that the bank cannot be made accountable for any kind of promise made by a merchant establishment. It was the appellant who asked for the payment to be in instalments and the OP merely complied to this request. When he informed the OP about not receiving the product the bank called OP 2 to provide for details regarding the delivery of the purchased product. On its failure, the bank reversed the EMIs and the amount was credited to the complainant’s account. The same was intimated to him via e-mail. The Commission observed, “we noticed that there is no dispute that the alleged transaction was failed due to non-delivery of the KENT water purifier. The complainant knowing fully that the outstanding EMIs were cancelled and amount already paid was credited to his account and the same was informed to the complainant through ‘e’ mail by Opposite Party on 15/11/2014. The District Commission has rightly appreciated the contention taken by the Opposite Party and found that there is no deficiency in service on the part of Opposite Party…. The appellant neither produced any documents before the district commission nor before us to show that the Opposite Party has deducted EMIs even after the cancellation of the said particular transaction. As such we found there is no any merit in the appeal and also no illegality in the order passed by the District Commission. The appellant/complainant has failed to establish the deficiency in service on the part of Opposite Party. As such the appeal is liable to be dismissed.”

KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION BASAVA BHAVAN BANGALORE First Appeal No. A 1484 2019 Date of Filing : 30 Oct 2019 Arisen out of Order Dated 24 07 2017 in Case No. CC 1289 2015 of District Bangalore 3rd 1. Anwar Ahmed Azmi Major S o Akhlaque Ahmed(Late) No.1 1st floor 7th cross K.K.Lane Behind Shantala Silks Cottonpet 1. M s Onemi AASAAN Retail Pvt. Ltd The Rain Tree Plac 2B New No.7 Mc Nicholas road Chetpet Chennai 600031 Regd. office at: Alsa Residency 165 Eldams road Alwartpet 2. M s HDFC Bank Rep. by its Manager Credit Cards Division No.8 Lattice Brigade road Thiruvanmayur Chennai 600018 Also at M s HDFC Bank Rep. by the Manager Credit Cards Division No.7 & 7 1 3rd floor Essel Chambers Lalbagh road Richmond circle Bangalore 560027 HON BLE MR. Ravishankar PRESIDING MEMBER HON BLE MRS. Smt.Sunita Channabasappa Bagewadi MEMBER Dated : 09 Nov 2021 Final Order Judgement THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION BANGALORE.No.1 1 Floor 7 Cross K.K.Lane Behind Shantala Silks By Shri H.S.Poornima Adv. Versus 1. M s Onemi Aasaan Retail Pvt. Ltd. The Rain Tree Place 2B. New No.7 MC Nicholas Road Chetpet Chennai 600 031 2 Regd Office at:Alsa Regency 165 Eldams Road Alwarpet Chennai 600 018 2. M s HDFC Bank Rep. by its Manager Credit Cards Division No.8 Lattice Brigade Road Thiruvanmayur Chennai 600 041 Also at : M s HDFC Bank Rep. by its Manager Credit Cards Division No.7 & 7 1 3 Floor Essel Chambers Lalbagh road Richmond Circle Bangalore 560 027 ORDERS ON ADMISSION BY SRI.RAVI SHANKAR JUDICIAL MEMBER The complainant before the District Commission in C.C.No.1289 2015 has preferred this appeal against the order passed by the Bangalore Urban District Consumer Disputes Redressal Commission which dismissed the complaint holding that there is no deficiency of service on the part of Opposite Party. The brief facts of the complaint are as under: The complainant had a credit card facility from Opposite Party Bank and he used to receive advertisement for purchase of various commodities along with his credit card statement promoting online shopping through HDFC Bank’s online shopping services. Believing the said advertisement the complainant purchased KENT water purifier through his credit card. The said order was placed in the name of his son Khasim and was to be delivered to Azamgarh Uttar 3 Pradesh. But after the placement of the said water purifier it was not delivered. In spite of that the Opposite Party bank has started deducting EMIs from 12.03.2014. The complainant made so many efforts and visited card division on 12.07.2014 13.07.2014 and again on 15.07.2014 but he received a reply from Opposite Party Bank apologized for the delay caused and assured to inform the product dispatch details immediately. Again the complainant registered a complaint as SR00034469 but after that the complainant had not received any details with respect to non delivery of the product. In spite of that the Opposite Parties have deducted Rs.15 450 as EMIs towards purchase of the said KENT R.O. Purifier. Hence alleged deficiency in service and prays for compensation and refund of the deducted amount. After service of notice the Opposite Parties appeared through their counsel and filed the version contenting that the complainant is a credit card holder and they have provided all facilities as per the terms and conditions and he is a credit card holder bearing No.5242160001614725. The complainant availed card agreeing to pay over dues of his card account promptly and also impliedly agreeing to abide by the terms and conditions of the Card Member Agreement. This card holder bank is not responsible for the promises made by any of the services assured by merchant establishment. In this complaint the complainant requested this Opposite Party to convert the price sum of purchased of his KENT water purifier of Rs.14 750 into installments for which this Opposite Party agreed and accordingly proceeded the request and allowed the complainant to make payment on EMI basis. The complainant informed that he had not received the purchased item and requested the Opposite Party bank to stop processing EMI payments towards the said purchase. Immediately the Opposite Party Bank called the Opposite Party No.1 to produce material proof and documents towards delivery of purchased item to the complainant. As the Opposite Party No.1 failed to furnish the material proof supported by documents the Opposite Party bank immediately reversed such EMIs sum paid by the complainant to the card account of the complainant which is reflected in statement of accounts dated:15.11.2014. They also informed about the reversal of the credit permanently to the card account through ‘e’ mail dated:23.10.2014. Further the respondent has taken a contention in the complaint that the complainant was due of Rs.20 049.49 which was reflected in statement of accounts therein. Pursuant to credit reversal of Rs.7 463.45 and complainant is liable to pay outstanding due. Instead of paying the said dues the complainant approached the District Commission without any basis and filed the false complaint in order to gain wrongfully. Hence submits no deficiency in service and prays for dismissal of the complaint. After trial the District Commission dismissed the complaint and noticed that there is no deficiency in service on the part of Opposite Party in recovering the outstanding due of the credit card issued to the complainant. Being aggrieved by the said order the complainant is in appeal on various grounds We have heard the arguments on admission On going through the memorandum of appeal certified copy of the order passed by the District Commission we noticed that there is no dispute that the alleged transaction was failed due to non delivery of the KENT water purifier. The complainant knowing fully that the outstanding EMIs were cancelled and amount already paid was credited to his account and the same was informed to the complainant through ‘e’ mail by Opposite Party on 15 11 2014. The District Commission has rightly appreciated the contention taken by the Opposite Party and found that there is no deficiency in service on the part of Opposite Party. 4 The learned counsel for appellant had not clarified before this Commission that how much he is due towards credit card with respect to the other transactions. The appellant neither produced any documents before the District commission nor before us to show that the Opposite Party has deducted EMIs even after the cancellation of the said particular transaction. As such we found there is no any merit in the appeal and also no illegality in the order passed by the District Commission. The appellant complainant has failed to establish the deficiency in service on the part of Opposite Party. As such the appeal is liable to be dismissed. Accordingly we proceed to pass the following: The appeal is dismissed at the state of admission. No costs The impugned order dated:24.07.2017 passed by III Additional Bangalore Urban District Consumer Disputes Redressal Commission in C.C.No.1289 2015 is hereby confirmed. Send a copy of this order to both parties as well as Concerned District Commission Sd Sd Member. Judicial Member HON BLE MR. Ravishankar HON BLE MRS. Smt.Sunita Channabasappa Bagewadi 5

When Accused a History-Sheeter it is important to scrutinize every aspect and not capriciously release on bail: Supreme Court

While hearing a criminal appeal on the decision of the High Court which granted bail to an Accused history-sheeter, the Supreme court held that in such cases, every aspect is to be scrutinized and the potential threat to witnesses and likelihood of repetition of offense is to be kept in mind. This Judgment was passed in the case of Sudha Singh vs. The State of Uttar Pradesh & Anr. [Cr.A.No.448/2021] by a Bench consisting of Hon’ble The Chief Justice, Hon’ble Justice A.S. Bopanna, and Hon’ble Justice V. Ramasubramanian. The criminal appeal was filed against the order of Allahabad High Court granting bail to the accused who was arrested charged for the offense under section 3(1) of the U.P. Gangster and Anti-social Activities (Prevention) Act, 1986. The appellant is the wife of a deceased victim who was allegedly murdered by the accused – respondent no. 2 in conspiracy with others. An FIR was registered and a charge sheet for the offenses under sections 120B and 302 of the IPC and sections 2 and 25 of the Arms Act, 1959 was filed against the accused. The allegation is that the accused is a contract killer and a sharpshooter. Further, the accused had been prosecuted in 15 other cases for serious offenses. It was the prosecution case that the accused along with other persons operated an organized crime gang that allegedly committed offenses punishable under Chapters 16, 17, and 22 of the IPC. It is also alleged that the gang instilled extreme fear and terror in the area where it operated and prevented persons from coming forward and lodging police complaints against their activities. It was also contended by the appellant that the grant of bail in a routine manner to such persons had an adverse effect on the law and order situation. the appellant contended that the courts must be extremely careful in releasing the history of those who have been charged with serious offenses like murder, rape, or other kinds of bodily harm several times. The Supreme court observed that the High Court had overlooked the potential threat to witness while forcing the trial court to grant protection. It went on to hold that in cases such as the present, it was significant to not just look at the present facts and incident and enlarge an accused on bail. The Supreme court relying on its previous judgments held that it was imperative for the High Courts to scrutinize every aspect and not capriciously record that the accused was entitled to be released on bail when the accused was a history-sheeter. Further, the supreme court referred to a judgment where it had held that while granting bail amongst other facts the likelihood of repetition of the offense, and the behavior, means, position, and standing of the accused and therefore set aside the order of High Court.

IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 448 OF 2021 SPECIAL LEAVE PETITIONNO. 3577 0F 2020 SUDHA SINGH … APPELLANT(S THE STATE OF UTTAR PRADESH & ANR. …RESPONDENT(S JUDGMENT This is a criminal appeal filed against the order of the Allahabad High Court granting bail to the accused who has been arrested with respect to the offence punishable under Section 3of the U.P. Gangster and Anti Social Activities Prevention) Act 1986 The appellant is the wife of a deceased victim namely Rajnarain Singh who has been allegedly murdered by the accused who is Respondent No. 2 herein in conspiracy with others. A First Information Report bearing Case Crime Number 200 of 2015 P.S. Sodhari Distt. Azamgarh was registered in that regard and a charge sheet for offences under Sections 120 B and 302 of the Indian Penal Code 1860 and Sections 3 and 25 of the Arms Act 1959 was filed against the accused. The accused is alleged to be a contract killer and a sharpshooter. In fact previously the accused has been prosecuted in fifteen cases for serious offences including murder attempt to murder and criminal According to the prosecution the accused along with other persons operate an organized crime gang in Azamgarh that allegedly commits offences punishable under Chapters 16 17 and 22 of the Indian Penal Code. The very purpose of the gang is to make physical and financial gains by committing innumerable crimes of serious nature It is also stated that this gang instills extreme fear and terror in the area where it operates thereby precluding persons from coming forward and lodging police complaints against its activities or for that matter deposing in cases By the order impugned in this criminal appeal the Allahabad High Court granted bail to the accused herein on very liberal terms such as the execution of a personal bond to the satisfaction of the jail Authorities and the furnishing of sureties within a month of his release. The High court has simply ignored the antecedents of the accused and the potential to repeat his acts by organising his criminal activities. It is stated by the appellant who is the wife of the deceased victim that the conduct of the accused during the trial of the case in Case No. 5116 has been one of non cooperation by not cross examining the witnesses first then praying for their recall and then threatening witnesses through his henchmen. In fact the conduct of the accused impelled the Sessions court to direct the police to provide security in the court during the trial and provide security to the witnesses. It is also contended by the appellant that the grant of bail in a routine manner to gangsters has had an adverse effect in the past upon the law and order situation. The appellant cites the example of a person who was prosecuted in connection with 64 criminal cases which included cases of murders offences of dacoity criminal intimidation extortion and offences under the UP Gangster Act etc. but who was released on bail. Ultimately when a police team went to apprehend him in a case allegedly 8 policemen were killed and many grievously injured Therefore the appellant contends that courts must be extremely careful in releasing of history sheeters who have been charged with serious offences like murder rape or several times. We find in this case that the high court has overlooked several aspects such as the potential threat to witnesses forcing the trial court to grant protection. It is needless to point out that in cases of this nature it is important that courts do not enlarge an accused on bail with a blinkered vision by just taking into account only the parties before them and the incident in question. It is necessary for courts to consider the impact that release of such persons on bail will have on the witnesses yet to be examined and the innocent members of the family of the victim who might be the next victims. This Court in Neeru Yadav vs. State of U.P.1 held that when a stand was taken that the accused was a history sheeter it was imperative for the High Courts to scrutinise every aspect and not capriciously record that the accused was entitled to be released on bail on the ground of parity. In Ash Mohammad vs. Shiv Raj Singh2 this Court observed that when citizens were scared to lead a peaceful life and heinous offences were obstructions in the establishment of a well ordered society the courts play an even more important role and the burden is heavy. It emphasized on the need to have a proper analysis of the criminal antecedents of the accused. In Prasanta Kumar Sarkar vs. Ashis Chatterjee and Another3 it was held that this Court ordinarily would not interfere with a High Court’s order granting or rejecting bail to an accused. Nonetheless it was equally imperative for the High Court to exercise its discretion judiciously cautiously and strictly in compliance with the ratio set by a 116 SCC 508 29 SCC 446 314 SCC 496 catena of decisions of this Court. The factors laid down in the judgment were i) Whether there was a prima facie or reasonable ground to believe that the accused had committed the ii) nature and gravity of accusations iii) severity of the punishment in the event of a iv) danger of the accused absconding or fleeing if granted bail v) character behaviour means position and standing of the accused vi) likelihood of repetition of the offence vii)reasonable apprehension of the witnesses being influenced and viii) danger of justice being thwarted by grant of bail There is no doubt that liberty is important even that of a person charged with crime but it is important for the courts to recognise the potential threat to the life and liberty of victims witnesses if such accused is released on bail. 13. We therefore allow the appeal and set aside the order of the Allahabad High Court granting bail to the April 23 2021

A Consortium can be disqualified only where winding up or insolvency proceedings are pending against a member of Consortium in terms of Para 13.2(j) of Preliminary Information Memorandum: High Court of Delhi

As per the Para 13.2(j) of Preliminary Information Memorandum (PIM), only where winding up or insolvency proceedings or other proceedings of similar nature are pending against a member of Consortium (i.e. IB) and/or Affiliate (only in case where a member of Consortium was taking benefit of financial strength of such Affiliate), would such Consortium be disqualified in terms of PIM. These were stated by High Court of Delhi, consisting Justice Hon’ble Chief Justice and Justice Jyoti Singh in the case of Dr. Subramanian Swamy vs. Union of India & Ors. [W.P.(C) 15240/2021] on 06.01.2022. The facts of the case are that the process of disinvestment of Air India and its subsidiaries commenced in June, 2017, with the in-principle approval of Cabinet Committee on Economic Affairs (CCEA). A policy decision to disinvest was taken after following the transparent procedure through multi-layered decision making. Advertisements inviting bids mentioned that the Government would cease to be responsible for loss after the date of disinvestment, as brought out in the documents annexed with the writ petition. In the light of excessive debt and other liabilities of Air India, arising out of huge accumulated losses, the bidding construct was revised in October, 2020 to allow the prospective bidders an opportunity to resize the balance sheet and increase chances of receiving bids and competition. The bids were invited on the basis of the revised construct for total consideration for equity and debt. Further, it was clearly advertised and made known that the sum of certain identified current and non-current liabilities (other than debt) would be retained in Air India and would be equal to the sum of certain identified current and non-current assets of Air India. The balance debt, over the debt quoted in Enterprise Value bid and excess liabilities, over and above the value of identified current and noncurrent assets, for the pre-disinvestment period, would be transferred to an identified Government Company. The Petitioner contended that the Air India Disinvestment process is arbitrary, unconstitutional, unfair, discriminatory and unreasonable and the same cannot be sustained in law. Process is also violative of Article 14 of the Constitution of India as well as against the interest of National integrity and security for the reason that there is an on-going investigation against Air Asia (India) Private Limited, wherein one of the shareholders was Air Asia Investment Limited, Malaysia and they exercise direct and indirect control over Respondent No.6. It was next submitted that the Consortium led by Mr. Ajay Singh, the Principal shareholder, Chairman and Managing Director of SpiceJet Limited had a pending litigation against him, filed by a decree holder under Order 39 Rules 1 and 2 CPC. Mr. Ajay Singh was one of the two bidders who was disqualified under Clause 13.2 of PIM. It was therefore, urged that since there were only two financial bids, out of which one bidder was the Consortium led by Mr. Ajay Singh, effectively the bidding process was a mere sham only to fulfil the technical requirement of there being more than one bidder. It is obvious that the whole process was collusive and tailored to facilitate Respondent No.6 acquire Air India. Therefore, the petitioner seeks a direction for quashing the Air India disinvestment process as also directing Central Bureau of Investigation (CBI)/Respondent No.5 to investigate into the role and functioning of the official Respondents, involved in the disinvestment process. The Learned Solicitor General of India appearing on behalf of Respondents submitted that the fundamental premise on which the Petition is predicated is that there is an on-going investigation against AirAsia (India) Private Limited, wherein one of the shareholders is AirAsia Investment Limited, Malaysia and they have a direct and indirect control over Respondent No.6. This according to the learned Solicitor General, was an incorrect assumption as factually neither AirAsia (India) Private Limited nor Air Asia Investment Limited, Malaysia had a direct or indirect control over Respondent No.6. AirAsia (India) Private Limited had no interest in Respondent No.6. As a matter of fact and record, Respondent No.6 was a wholly owned subsidiary of M/s Tata Sons Ltd. It was also submitted that even as per the Petitioner there was no charge sheet filed by any Government Agency against AirAsia (India) Pvt. Ltd. or Respondent No.6 or Tata Sons Ltd and thus no ground for disqualification is made out against Respondent No.6, as per the criteria set out in the PIM. It was submitted that the criteria for disqualification had been specifically prescribed in the PIM and was strictly applied in the bidding process.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 6th January 2022 W.P.(C) 15240 2021 & CM APPL. 47969 2021DR SUBRAMANIAN SWAMY Through: Dr. Subramanian Swamy Petitioner in Person with Ms. Ramni Taneja Mr. Satya Sabharwal and Mr. Vishesh Kanodia Advocates ..... Petitioner UNION OF INDIA & ORS. ..... Respondents Through: Mr. Tushar Mehta Solicitor General with Mr. Chetan Sharma Additional Solicitor General Mr. Amit Mahajan Central Government Standing Counsel Mr. Dhruv Pande Ms. Amita Gupta Katragadda Ms. Mr. Kaustubh Rai and Ms. Isha Chaudhary Advocates for Respondents No.1 to 4. Mr. Nikhil Goel Special Public Prosecutor for Respondent No.5. Mr. Harish Salve Senior Advocate with Ms. Anuradha Dutt Mr. Lynn Pereira Ms. Feresthe Sethna Mr. Haaris Fazili and Mr. Kunal Dutt Advocates for Respondent No.6. Preksha Malik HON BLE THE CHIEF JUSTICE HON BLE MS. JUSTICE JYOTI SINGH Per D. N. PATEL Chief Justice This Public Interest Litigation has been filed seeking the following reliefs: W.P.(C) 15240 2021 “a. Issue a writ order or direction in the nature of a writ of mandamus or any other appropriate writ order or direction directing the Respondents Nos. 1 to 4 to quash the present Air India Disinvestment process b. issue a writ of Certiorari or any other writ or direction of similar nature to set aside and revoke any action or decision or grant of any further approvals permissions permits etc. by the Respondent authorities with respect to the present Air India Disinvestment process c. Issue a writ order or direction in the nature of a writ of mandamus or any other appropriate writ order or direction directing the Respondent No. 5 to investigate into the role and functioning of the Respondents authorities and submit a detail the present Air India Disinvestment process exclusively to this Hon’ble Court d. Issue any other appropriate writ order or direction as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.” Arguments were heard on behalf of the respective parties on 04.01.2022. During the course of arguments learned Solicitor General of India appearing on behalf of Respondents No.1 to 4 sought liberty to place on record a short Note on the arguments canvassed by him. Liberty was granted to do the needful. Similarly Petitioner and Respondent No.6 were also permitted to file their respective short Notes. All the parties filed their respective Notes of arguments which have been taken on record and perused. The factual matrix is in a narrow compass. Process of disinvestment of Air India and its subsidiaries commenced in June 2017 with the in principle approval of Cabinet Committee on Economic Affairs15240 2021 multi layered decision making involving Inter Ministerial Group Core Group of Secretaries on Disinvestment and the empowered Air India Specific Alternative Mechanismat the apex Ministerial level with support for the entire process from reputed Transaction Adviser Legal Adviser and Asset Valuer. Advertisements inviting bids mentioned that the Government would cease to be responsible for loss after the date of disinvestment as brought out in the documents annexed as Annexure A 1and Annexure A 3 with the writ petition. In the light of excessive debt and other liabilities of Air India arising out of huge accumulated losses the bidding construct was revised in October 2020 to allow the prospective bidders an opportunity to resize the balance sheet and increase chances of receiving bids and competition. The bids were invited on the basis of the revised construct for total consideration for equity and debt with minimum cash consideration of 15% for equity “Enterprise Value”). Further it was clearly advertised and made known that the sum of certain identified current and non current liabilities would be retained in Air India and AIXL and would be equal to the sum of certain identified current and non current assets of Air India and AIXL. The balance debt over the debt quoted in Enterprise Value bid and excess liabilities over and above the value of identified current and non current assets for the pre disinvestment period would be transferred to an identified Government Company. First and foremost contention of Dr. Subramanian Swamy Petitioner in person was that the Air India Disinvestment process is arbitrary unconstitutional unfair discriminatory and unreasonable and the same cannot be sustained in law. Process is also violative of Article 14 of the W.P.(C) 15240 2021 Constitution of India as well as against the interest of National integrity and security primarily for the reason that there is an on going investigation against Air AsiaPrivate Limited wherein one of the shareholders is Air Asia Investment Limited Malaysia and they exercise direct and indirect control over Respondent No.6. It was next submitted that the Consortium led by Mr. Ajay Singh the Principal shareholder Chairman and Managing Director of SpiceJet Limited has pending litigation against him filed by a decree holder under Order 39 Rules 1 and 2 CPC seeking injunction to restrain SpiceJet from transferring alienating any of its assets to SpiceXpress and Logistics Pvt. Ltd. and seeking recovery of the amounts under a Foreign decree. The High Court of Madras vide its order dated 06.12.2021 in Co. Pet. No. 363 2015 has issued winding up orders against SpiceJet. Mr. Ajay Singh the lead member of the Consortium which was one of the two bidders is disqualified under Clause 13.2 of the Preliminary Information Memorandumwith respect to Air India disinvestment issued by Ministry of Civil Aviation on 27.01.2020. It was urged that since there were only two financial bids out of which one bidder was the Consortium led by Mr. Ajay Singh effectively the bidding process was a mere sham only to fulfil the technical requirement of there being more than one bidder. It is obvious that the whole process was collusive and tailor made to facilitate Respondent No.6 acquiring Air India. It was contended that the successful bidder ought to have been disqualified on account of the allegations made by the Petitioner in an earlier writ petition being W.P.(C) 5909 2013 claiming breach of the extant FDI Policy as per Press Note 12 read with DGCA Guidelines. Petitioner W.P.(C) 15240 2021 is pending. has prayed for a CBI investigation in the said petition to investigate the role and functioning of the concerned Respondents and the Court has directed CBI to file a Status Report which has since been filed and the writ petition The next contention of Dr. Subramanian Swamy was that Air India was a profitable enterprise until 2004 and should not have been privatized. Although Dr. Swamy repeatedly urged in the oral submissions that he is not against privatization but submitted that he is aggrieved by the methodology of valuation which according to him was arbitrary corrupt illegal and against public interest as allegedly evident from the statement in one of the news articles that Government was seeking Rs. 62 000 crores for debt and other liabilities of Air India whereas at an earlier press conference in October 2021 Department of Investment and Public Asset Management had stated that the net liability on the Government after Air India’s privatisation amounted to Rs. 28 000 crores approximately. On the aforesaid grounds Petitioner seeks a direction for quashing the Air India disinvestment process as also directing Central Bureau of Investigation Respondent No.5 to investigate into the role and functioning of the official Respondents involved in the disinvestment 10. Learned Solicitor General of India appearing on behalf of Respondents No.1 to 4 submitted that the apprehensions expressed and the allegations levelled by the Petitioner relating to the disinvestment process of Air India are absolutely baseless apart from the fact that there are several factual inaccuracies in the averments made by the Petitioner. It was submitted that the fundamental premise on which the Petition is predicated W.P.(C) 15240 2021 is that there is an on going investigation against AirAsia Private Limited wherein one of the shareholders is AirAsia Investment Limited Malaysia and they have direct and indirect control over Respondent No.6. This according to the learned Solicitor General is an incorrect assumption as factually neither AirAsiaPrivate Limited nor Air Asia Investment Limited Malaysia has a direct or indirect control over Respondent No.6. AirAsia Private Limited has no interest in Respondent No.6 M s Talace Private Limited the highest bidder. As a matter of fact and record Respondent No.6 is a wholly owned subsidiary of M s Tata Sons Ltd. It is pointed out that the Petitioner in paragraph 16 ground VI and ground VIII of the writ Petition has himself averred that Respondent No.6 is a wholly owned subsidiary of M s Tata Sons Pvt. Ltd. and thus despite being aware of the said position has chosen to level false allegations for reasons best known to the Petitioner. It was also submitted that even as per the Petitioner there is no charge sheet filed by any Government Agency against AirAsia India) Pvt. Ltd. or Respondent No.6 or Tata Sons Ltd and thus no ground for disqualification is made out against Respondent No.6 as per the criteria set out in the PIM. It was further submitted by learned Solicitor General that the second ground which is very vaguely pleaded in Ground X of the writ petition concerns some legal proceedings against SpiceJet Limited. It was pointed out that the disinvestment process saw keen competition with seven EOIs being received in December 2020 and two bidders submitted the financial bids in September 2021. One of the bidders who submitted the financial bid was a Consortium where the lead member was Sh. Ajay Singh in his individual capacity. SpiceJet Limited was neither a member of the W.P.(C) 15240 2021 Consortium nor an “Affiliate” on whose net worth any of the members of the Consortium had relied to meet the financial capability criteria prescribed under the PIM. It was submitted the criteria for disqualification had been specifically prescribed in the PIM and was strictly applied in the bidding process. The relevant criteria is set out in Para 13.2(j) of the PIM and the relevant clause as relied upon is as follows : “..If at any time it is discovered that an IBand or Affiliate only in case IB is taking benefit of financial strength of such Affiliate) is are subjected to winding up insolvency proceedings or other proceedings of a similar nature.” emphasis supplied) the said Clause it was urged only where winding up insolvency proceedings or other proceedings of a similar nature are pending against the member of the Consortium and or Affiliate only in a case where a member of the Consortium takes benefit of financial strength of such Affiliate) would such a Consortium be disqualified in terms of the PIM. Thus the proceedings against SpiceJet Limited are of no consequence and would not result in disqualification of the Consortium with Sh. Ajay Singh as the lead member. It was next submitted by learned Solicitor General that the decision to disinvest Air India Limited while retaining part of the pre disinvestment debt and liability with the Government is essentially a matter of policy and in the absence of any illegality or arbitrariness being pointed out in the decision making process a policy decision is not be amenable to judicial review. It was further submitted that the Government has been working towards closing of disinvestment at the earliest as the Government is paying W.P.(C) 15240 2021 Rs. 20 crores a day to run the Airline. It is expected that apart from providing job protection to the employees the new owner will infuse huge capital to refurbish the aircrafts and possibly purchase new aircrafts for the obsolete ones so that the Airline can be revived. Any further delay it was submitted in closure of the disinvestment shall cause loss to public exchequer create uncertainty amongst the employees and will be against the public interest and thus the petition be dismissed. 13. We have heard Mr. Harish Salve learned Senior Counsel appearing on behalf of Respondent No.6 who urged that a policy decision for disinvestment of Air India and its subsidiaries was taken in June 2017 with the in principle approval of Cabinet Committee on Economic Affairs. Thus in essence this petition is a challenge to a policy decision taken almost five years ago and is highly belated. It was submitted that the successful bidder in the present case is Respondent No.6 who is not facing any criminal proceedings in relation to the subject matter of W.P.(C) No.5909 2013 as sought to be alleged by the Petitioner. Respondent No.6 is admittedly a wholly owned subsidiary of M s Tata Sons Private Limited who is also not facing any criminal proceedings. Both the companies are Indian entities and hence no question of Foreign Direct Investment Policy violations could arise. It was pointed out that Mr. Venkataramanan Ramchandran referred to in the FIR dated 28.05.2018 is no longer a trustee of Tata Trusts nor does he hold any office in Respondent No.6 or its parent M s Tata Sons. It was submitted that Tata has increased its shareholding in AirAsiaLimited from 49% to over 83%. No interim relief was granted to the Petitioner in W.P.(C) No.5909 2013 and in fact the same was categorically declined vide order dated 11.02.2014 as also by a subsequent order dated 11.07.2019. W.P.(C) 15240 2021 14. Mr. Harish Salve submitted that AirAsia Limited was not a bidder in the present process of disinvestment of Air India. One of the bidders of the financial bid was a Consortium whose lead member was Mr. Ajay Singh in his individual capacity. SpiceJet Limited was neither a member of the Consortium nor an ‘Affiliate’ on whose net worth any of the members of the Consortium had relied on to meet the financial capability criteria prescribed under the PIM. It was also submitted that there is not even an iota of evidence or material in the writ petition which would even remotely suggest that Respondent No.6 colluded with Mr. Ajay Singh’s Consortium or was aware of the Consortium’s bidding strategy as alleged by the Petitioner. It was argued by Mr. Harish Salve that Petitioner has merely relied upon a news report published in one of the newspapers wherein it was stated that the Government has sought Parliament’s nod to infuse over Rs. 62 000 crores to its Company that holds Air India’s debts liabilities and some non core assets to contend that the methodology of valuation was illegal. It was submitted that the said article itself explains that the balance amount includes interest liabilities towards working capital etc. and that of the approximately Rs. 62 000 crores total debt Respondent No.6 will take over Rs. 15 300 crores and that the Government has already budgeted Rs. 8 351 crores since 2018 to fund the liabilities that will remain with the Government SPV set up to clean the Air India’s balance sheet. In any event none of these assertions establish any arbitrariness much less illegality or corruption. Parliamentary control over executive action is a primary form of control in a democracy. Where Parliamentary sanction is sought for infusion of such a large amount into an Airline it is obvious that the wisdom of the W.P.(C) 15240 2021 decision apart from its different dimensions would be discussed in the Parliament. The wisdom of the decision and the exact mathematics of how the Government plans to deal with the large mountain of losses piled up on account of Air India are matters for Parliamentary control and not for judicial review. It was further submitted that the Letter of Intent was issued to Respondent No.6 on 11.10.2021 and the SPA was signed on 25.10.2021. Tata Sons has given Parent Guarantee as part of the transaction. Petitioner has knowledge of Respondent No.6’s participation in the bidding process as far back as in December 2020 which is clearly evident from Annexure P 2 to the writ Petition. It is thus prayed that the Petition be dismissed as the same is totally devoid of merits. 17. Having heard Dr. Subramanian Swamy Mr. Tushar Mehta learned Solicitor General appearing for Respondents No.1 to 4 and Mr. Harish Salve learned Senior Advocate appearing for Respondent No.6 we see no reason to entertain this Public Interest Litigation for the following facts and reasons: By way of this Public Interest Litigation Petitioner seeks directions to quash the present Air India disinvestment process which has reached its final stage. The bidding process is complete in which Respondent No.6 has emerged as the highest bidder. Respondent No.6 M s Talace Private Limited is a wholly owned subsidiary of M s Tata Sons Private Limited. Cabinet Committee of Economic Affairs has approved the highest price bid of Respondent No.6 on 08.10.2021 for sale of 100% equity shareholding of Government of W.P.(C) 15240 2021 India in Air India along with equity shareholding of Air India Air India Express Limited and Air India Transport Services LimitedThere is on going investigation against AirAsia Ltd. where one of the shareholders is AirAsia Investment Ltd. Malaysia and they have direct and indirect control over Respondent No.6 and thus Respondent No.6 was from bidding. The successful bidder Respondent No.6 ought to have been disqualified even on account of the allegations made by the Petitioner in W.P.(C) 5909 2013 claiming breach of Foreign Direct Investment Policy. b) The bidding process was tailor made to facilitate Respondent No.6 in acquiring Air India by entertaining a bid on behalf of SpiceJet which was a planned and collusive strategy. There are various pending litigations against SpiceJet Ltd. as also a winding up order by the Madras High Court. c) The methodology of valuation was arbitrary corrupt illegal and against public interest and d) Air India which was a profitable enterprise until 2004 and should not have been privatized. III) So far as the first challenge is concerned it is an admitted case of the Petitioner that Respondent No.6 is a wholly owned subsidiary W.P.(C) 15240 2021 of M s Tata Sons Limited. Neither Tata Sons Private Limited nor Respondent No.6 are facing any criminal proceedings in relation to the subject matter of W.P.(C) 5909 2013 or in any other matter. Both Respondent No.6 as well as Tata Sons Limited are Indian entities and therefore no question arises of violation of Foreign Direct Investment Policy in any event. Moreover AirAsia Private Limited has no interest in M s Talace Private Limited who is the highest bidder. For ready reference the shareholding pattern of Respondent No.6 and AirAsiaPrivate Limited is set out below: Tata Sons Pvt. Ltd. Air Asia Investments Ltd. Talace Private Ltd. Air AsiaLtd. IV) No charge sheet has been filed in any criminal proceedings against AirAsiaPrivate Limited or M s Talace Private Limited or Tata Sons Limited as on date in the matter pertaining to AirAsia and accordingly no ground for disqualification of Respondent No.6 as per the criteria set out in the PIM is made out. Similarly no ground for disqualification of Respondent No.6 on the basis of the W.P.(C) 15240 2021 01020304050607080901st Qtr2nd Qtr3rd Qtr4th QtrEastWestNorth allegations made in writ petition being W.P.(C) 5909 2013 is made out. In fact in our view the said petition is wholly irrelevant and unconnected to the present controversy. V) So far as second ground on which this petition has been preferred that the bidding process was tailor made to facilitate Respondent No.6 acquiring Air India by entertaining a bid on behalf of SpiceJet is concerned the same is equally devoid of merit mainly for the reason that disinvestment process saw keen competition with seven Expression of Interests received in December 2020 and twobidders submitted the financial bid in September 2021. One of the bidders who submitted the financial bid was a Consortium in which the lead member was Mr. Ajay Singh but in his individual capacity. SpiceJet Limited was neither a member of the Consortium nor an “Affiliate” on whose net worth any of the members of the Consortium had relied on to meet the financial capability criteria prescribed under PIM. The criteria for disqualification as noted above has been specifically prescribed in the PIM. The relevant criteria as set out in para 13.2(j) of the PIM has been extracted in the earlier part of the judgement. As per the said criteria only where winding up or insolvency proceedings or other proceedings of similar nature are pending against a member of Consortium and or Affiliate would such Consortium be disqualified in terms of PIM. However in the present case as brought out by the Respondents SpiceJet Limited was not a member of the Consortium W.P.(C) 15240 2021 and thus any proceedings pending against SpiceJet Limited will be of no consequence and would not result in disqualification of the Consortium having Mr. Ajay Singh as the lead member. There is no material on record which would support the allegations of the Petitioner that Respondent No.6 colluded with Mr. Ajay Singh’s Consortium or was aware of the Consortium’s bidding strategy. VI) So far as methodology of valuation is concerned a reserve price was fixed after receipt of sealed financial bids for the transaction based on valuation using methodologies as per established process. The policy decision to disinvest was taken after following transparent procedure through multi layered decision making involving Inter Ministerial Group Core Group of Secretaries on Disinvestment and the empowered Air India Specific Alternative Mechanism at the apex Ministerial level with support for the entire process from reputed Transaction Adviser Legal Adviser and Asset Valuer. The advertisements inviting bids mentioned that the Government would cease to be responsible for loss after the date of disinvestment. In the light of the excessive debt and other liabilities of Air India arising out of huge accumulated losses the bidding construct was revised in October 2020 to allow the prospective bidders an opportunity to resize the balance sheet and increase chances of receiving bids and competition. The bids were invited on the basis of revised construct for total consideration for equity and debt with minimum cash consideration of 15% for equity “Enterprise Value”). It was made clear that the sum of certain identified current and non current liabilities to be W.P.(C) 15240 2021 retained in Air India and AIXL would be equal to the sum of certain identified current and non current assets of Air India and AIXL. The balance debt over the debt quoted in Enterprise Value bid and excess liabilities over and above the value of identified current and non current assets for the pre disinvestment period would be transferred to an identified Government Company. VII) The apprehension of the Petitioner is based upon a news report in one of the newspapers that the Government has sought Parliament’s nod to infuse over Rs. 62 000 crores to its Company that holds Air India’s debt liabilities and some non core assets whereas in October 2021 Department of Investment and Public Asset Management “DIPAM”) Secretary had stated that net liability on Government after Air India’s privatization amounted to Rs. 28 844 crores. Mr. Harish Salve learned Senior Counsel has clearly brought out the exact import of the said article which is annexed as “Annexure P 5” to the memo of the writ petition. The article is self explanatory and indicates the balance amounts due including interest liabilities towards working capital and aircraft loans lease rentals owing to the oil companies and to the Airports Authority of India and does not read in the manner sought to be read by the Petitioner. Thus there is no substance in these allegations. VIII) So far as the last argument is concerned i.e. Air India which was a profitable enterprise until 2004 should not have been privatized the same does not appeal to this Court and is not even germane to the issue in question. As brought out by the Respondents way back in June 2017 in principle approval was accorded by the Cabinet W.P.(C) 15240 2021 Committee on Economic Affairs for the process of disinvestment of Air India and its subsidiaries. This was a policy decision by the Central Government taken after due deliberations at various levels and is not open to interference in judicial review by this Court exercising jurisdiction under Article 226 of the Constitution of India more particularly in the absence of any illegality or arbitrariness being established by the Petitioner in the decision making process and as rightly contended by Respondent No.6 is a highly belated challenge. IX) We also find merit in the stand of the Respondents No. 1 to 4 that each day approximately Rs. 20 crores are being invested to run the Airline by the Government. The successful bidder needs to invest huge capital to infuse new life into the concerned Airline. We also find merit in the stand of Respondents No.1 to 4 that they have been working towards closing of the disinvestment process at the earliest and any further delay shall cause loss to the public exchequer besides creating uncertainty amongst the existing employees with regard to their future prospects and it needs no gainsaying that public interest shall be adversely affected. 18. The writ petition is wholly devoid of merit and is accordingly dismissed along with the pending application. CHIEF JUSTICE JANUARY 06 2022 kks JYOTI SINGH J W.P.(C) 15240 2021

All material details to be fully disclosed before the court: Bombay High Court

The disclosure of all facts which play an important role in securing justice in a case must be revealed before the court and not facts which are a half-truth with the intent of subverting the administration of justice. This was decreed by Hon’ble Justice Rohit B. Deo in the case of Shubham @ Bhaiyyalal vs. State of Maharashtra [CRIMINAL WRIT PETITION 393 OF 2021] on the 17th of July, 2021 before the Hon’ble High Court of Bombay at Nagpur. The brief facts of the case are, the applicant is arraigned as an accused for offences punishable under sections 302, 307, 326, 143, 145, 147, 148, 149, 504, 506, 120-B of Indian Penal Code read with section 135 of Maharashtra Police Act. The applicant and the co-accused allegedly brutally killed Mr. Nikhil Lokhande. A criminal application seeking bail was preferred before the additional sessions Judge. The learned Sessions Judge rejected the application, after minutely scrutinizing the material in the charge sheet. The order of rejection of bail dated 20.6.2020 notes the uncontroverted position that the applicant is a history-sheeter and is facing as many as six prosecutions involving serious offences. The rejection order further notes that there is overwhelming evidence to link the applicant with the brutal killing and that a weapon is also recovered at the instance of the applicant. In apprehension that the prosecution witness may be influenced, the bail application was rejected. However, two days after the rejected, an application for bail was applied before the current bench which was approved. However, the bail was later cancelled since the applicant had concealed material facts. The present petition has been filed to question such a cancellation. The counsel for the applicant submitted that the second bail application is filed since there is no prospects of early trial due to COVID-19 apart from merits of present case. He also argued that, strict rules of pleadings are not applicable to bail application and the degree of disclosure is not absolute. The counsel for the respondent submitted that, the applicant secured the bail by hoodwinking the system and merrily walked out of the prison a free man. Fortunately, due to the intervention of the complainant, the prosecution was obligated to move an application seeking cancellation of bail. It was also submitted that, the details of the first application, which was rejected, were not disclosed, much less, the fact that the rejection was on merits and hardly 48 hours had elapsed therefrom, nor was the rejection order placed on record. The learned judge heard the contentions of both the parties and observed that, the first rejection order rendered by the learned judge, was not produced on record. In the note appended, the statement made was a mendacious and mischievous half-truth. The prosecutor was silent, and the learned Judge failed to hear the alarm bells, which the conveniently and deceptively worded “disclosure” ought to have set ringing.

on 17 07 2021 on 18 07 1 wp393.2021IN THE HIGH COURT OF JUDICATURE AT BOMBAYNAGPUR BENCH NAGPURCRIMINAL WRIT PETITION 393 OF 2021Shubham @ Bhaiyyalal s o. Siddi Soni aged 22 yrs Occ. Student r o. House No. 34 Behind Amjadi Masjid Mahesh Nagar Shanti Nagar Nagpur ...... PETITIONER...V E R S U S...State of Maharashtra thr Police Station Officer Police Station Kalamna Nagpur …RESPONDENT Mr. R.R. Vyas counsel for petitioner.Mr. N.S. Rao APP for respondent State. CORA M: ROHIT B. DEO J. DATE : 17.07.2021ORAL JUDGMENT:Heard Mr. R.R. Vyas the learned counsel for thepetitioner and Mr. N.S. Rao the learned APP forrespondent State.2.The credibility of the justice dispensation system isthe collective responsibility of all the stakeholders the judges the bar the litigants and the common man.3.Unfortunately the erosion of the faith of thecommon man in the justice dispensation system more often on 17 07 2021 on 18 07 2 wp393.2021than not is attributable to stakeholders who may not be aliveto their pious duty and responsibility to ensure that the streamof justice flows unpolluted and unhindered.4.The disturbing ease with which the applicantsecured bail by gross suppression nay chicanery is reminiscentof the words spoken by Marcellus in Hamlet “Something isrotten in the State of Denmark”.5.Something is indeed wrong with the state of affairsin the justice dispensation system its credibility is in peril andthe enemy lurks within.6.The applicant is arraigned as an accused in Crime37 2020 registered at Police Station Kalamana Nagpur foroffences punishable under sections 302 307 326 143 145 147 148 149 504 506 120 B of Indian Penal Code read withsection 135 of Maharashtra Police Act. The applicant and theco accused allegedly brutally killed Mr. Nikhil Lokhande.7.The applicant preferred Criminal Application1088 2020 seeking bail which was assigned to Mr. S.S.Deshpande the learned Additional Sessions Judge 8 Nagpur. on 17 07 2021 on 18 07 3 wp393.20218.The learned Sessions Judge rejected theapplication after minutely scrutinizing the material in thechargesheet and hearing the learned counsel Mr. ChetanThakur who appeared on behalf of the applicant.9.The order of rejection of bail dated 20.6.2020notes the uncontroverted position that the applicant is ahistory sheeter and is facing as many as six prosecutionsinvolving serious offences. The rejection order further notesthat there is overwhelming evidence to link the applicant withthe brutal killing and that a weapon is also recovered at theinstance of the applicant.10.The rejection order notes that the adverseantecedents of the applicant justifies the apprehension of theprosecution that the prosecution witnesses may be influencedor pressurized.11.The learned Judge was further not impressed bythe submission canvased by Mr. Chetan Thakur that bail begranted in view of the Covid 19 outbreak. on 17 07 2021 on 18 07 4 wp393.202112.The rejection of bail by the learned Sessions JudgeMr. S.S. Deshpande did not deter the applicant. It appears thattwo days after the rejection of bail the assignment changed.The applicant sensed an opportunity and was quick to prefer anapplication for bail dated 22.6.2020 which was assigned toSmt. V.D. Ingle Additional Sessions Judge 7 Nagpur.13.The note appended below the application seekingbail reads thus:“This is 2nd bail application filed by theapplicant before Sessions Court at Nagpur onthe ground that there is no prospects of earlytrial due to COVID 19 apart from merits ofpresent case”.14.The details of the first application which wasrejected were not disclosed much less the fact that therejection was on merits and hardly 48 hours had elapsedtherefrom nor was the rejection order placed on record.15.I do not have even an iota of doubt in my mind that the note was a machiavellian lip service paid to the solemnduty of true and faithful disclosure of the rejection of the firstbail application on merits. Indeed the note is a manifestationof devious mind and the intent was to subvert the on 17 07 2021 on 18 07 5 wp393.2021administration of justice.16.The applicant succeeded in the nefarious design.The learned Judge Smt. V.D. Ingle was pleased to grant bail bya cryptic order. Perusal of the order dated 24.6.2020 renderedby the learned Smt. V.D. Ingle reveals that she may not haverealized that she was considering a successive applicationpreferred 48 hours after the rejection of the first application bythe learned Judge Mr. S.S. Deshpande.17.The learned prosecutor who appeared inMiscellaneous Criminal Application 1453 2020 which wasallowed by the learned Judge Smt. V.D. Ingle presumably didnot draw the attention of the learned Judge Smt. V.D. Ingle tothe note appended. While the prosecutor was not alive to herduty the learned Judge also did not either consider thedeceitful half truth or if she did consider the note the learnedcounsel Mr. Chetan Thakur who also appeared for the applicantin the earlier bail proceeding was not called upon to produceon record the first rejection order.18.The first rejection order rendered by the learned on 17 07 2021 on 18 07 6 wp393.2021Judge Mr. S.S. Deshpande was not produced on record. In thenote appended the statement made was a mendacious andmischievous half truth. The prosecutor was silent and thelearned Judge failed to hear the alarm bells which theconveniently and deceptively worded “disclosure” ought tohave set ringing.19.The applicant secured the bail by hoodwinking thesystem and merrily walked out of the prison a free man.Fortunately due to the intervention of the complainant theprosecution was obligated to move an application seekingcancellation of bail.20.The applicant opposed the application seekingcancellation of bail. However the applicant did not deny thatthe copy of the earlier rejection order was not placed onrecord.21.The learned Judge Smt. V.D. Ingle cancelled thebail vide order dated 29.8.2020 observing thus:“9)After perusing the present applicationand considering the argument of Ld. APP itappears that Ld. APP has no knowledge aboutrejection of earlier bail application of non applicant accused. She herself argued that APPbefore District Court 8 and before this court on 17 07 2021 on 18 07 7 wp393.2021was not the same and therefore the aforesaidfact could not be ascertained during thepandemic COVID 19. Though the Ld. APP andLd. Counsel for non applicant argued thematter simultaneously and it is the contentionof Ld. Counsel for non applicant that hepointed out the attention of the Court aboutrejection of his earlier bail application thenthe Ld. APP must have argued in that respectbut she did not argue on that point because sheherself has no knowledge about it. Hence thecontention of Ld. counsel fornon applicant accused in that respect cannotbe accepted which shows suppression ofmaterial fact. It also appeared that the Ld.Counsel for non applicant has also not filedcopy of rejection of bail order on record”.22.Unfazed and undeterred the applicant is beforeme questioning the order of cancellation of bail.23.The applicant did not surrender to custody despitethe direction issued by the learned Sessions Judge andabsconded. I therefore directed the applicant vide orderdated 14.6.2021 to surrender to custody within 24 hours. Theapplicant has accordingly surrendered.24.The learned counsel for the applicant Mr. R.R. Vyascanvased an ingenious argument. Mr. R.R. Vyas argued thatstrict rules of pleadings are not applicable to bail applicationand the degree of disclosure is not absolute. The argument is on 17 07 2021 on 18 07 8 wp393.2021noted only as a courtesy to Mr. R.R. Vyas. The duty is to makea true and faithful disclosure and not a half truth with theintent of subverting the administration of justice. Not only theapplicant the learned counsel who appeared in both the bailproceedings must share the blame for the attempt to take thejudicial process for a ride.25.This application is absolutely frivolous and is liableto be dismissed with exemplary costs.26.The application is dismissed with cost ofRs. 50 000 which shall be depositedwith the High Court Legal Aid Sub Committee Nagpur withinthe next 15 days and in default the costs shall be recovered bythe Collector Nagpur as arrears of land revenue.27.Before parting with the order I am impelled torecord that I did consider taking an extremely stern andserious view of the role played by the learned counsel whoappeared on behalf of the applicant in both the bailapplications. However since the learned counsel has filed onrecord an affidavit tendering unconditional apology and on 17 07 2021 on 18 07 9 wp393.2021assuring that henceforth he will disclose all material facts I amrefraining from initiating further action in the fond hope thatthe unsavoury incident would only be an aberration.28.The learned counsel would do well to be guided bythe following observations of the Hon’ble Supreme Court inR.Muthukrishnan Vs. The Registrar General of High Court atMadras AIR 2019 SC 849.“27. It is said by Alexander Cockburn that “theweapon of the advocate is the sword of a soldier notthe dagger of the assassin”. It is the ethical duty oflawyers not to expect any favour from a Judge. Hemust rely on the precedents read them carefully andavoid corruption and collusion of any kind not tomake false pleadings and avoid twisting of facts. In aprofession everything cannot be said to be fair even inthe struggle for survival. The ethical standard isuncompromisable. Honest dedication and hard workis the only source towards perfection. An advocate’sconduct is supposed to be exemplary. In case anadvocate causes disrepute of the Judges or hiscolleagues or involves himself in misconduct that isthe most sinister and damaging act which can be doneto the entire legal system. Such a person is definitelydeadwood and deserves to be chopped of”. JudgeBelkhede

When a Civil dispute is found between two private parties, it is proper to approach the appropriate forum in accordance with law: Calcutta High Court

A direction was issued to conclude the investigation and a report was submitted before the jurisdictional Court within a time-bound period. Such an opinion was held by The Hon’ble High Court of Calcutta before The Hon’ble Mr. Chief Justice Prakash Shrivastava and The Hon’ble Mr. Justice Rajarshi Bharadwaj in the matter of Dinesh Agarwal Vs. State of West Bengal & Ors [MAT 863 of 2021 With IA CAN 1 2021]. The Writ petitioner questioned the correctness of the order passed by the Single Judge on 14.07.2021. It was found by the Single Judge that the dispute raised by the appellant was of civil nature. According to the submissions by the appellant, the police failed to justify the civil dispute and wrongly handed over the possession of the premises and goods kept therein to the private respondent.  The counsel representing the respondents opposed the prayer and submitted that based upon factual controversy the appellant tries to set up the entire story and approached the required forum and establish it by way of evidence. It was reported that the official respondents had denied the plea of forcible dispossession by filing an affidavit in opposition and disclosing that 4 women including 2 senior citizens were locked in the premises in question and on receiving an intimation they were rescued. It appeared that each of the prayers was duly considered by the learned Single Judge and examining all the affidavits of the respondents, no conclusion was about to be drawn regarding the fact that the police personnel were guilty of latches and breaches as complained of by the petitioner. The Hon’ble Court considering all the facts stated that “The perusal of the order passed by the learned Single Judge reveals that the issues raised by the appellant have been duly considered and appropriate conclusions have been drawn. In this view of the matter, we do not find any informity or illegality in the order of the learned Single Judge. Hence, no case is made out to interfere in the order of the learned Single Judge. The appeal is found to be devoid of any merit which is accordingly dismissed.”

Pronounced on: 16.11.2021 IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION Appellate Side) MAT 8621 IA CAN 1 2021 Reserved on: 10.11.2021 Vs Dinesh Agarwal Present: State of West Bengal & Ors. ...Respondents Mr. Dinesh Agarwal ... Appellant in person. Mr. Suvadip Bhattacharjee Mr. Balaram Patra Advocates for the respondent nos. 7 and 8 Mr. Amitesh Banerjee Mr. Tarak Kanan Advocates for the State. Coram: THE HON’BLE JUSTICE PRAKASH SHRIVASTAVA CHIEF JUSTICE THE HON’BLE JUSTICE RAJARSHI BHARADWAJ Prakash Shrivastava CJ: By this appeal correctness of the order of the learned Single Judge dated 14.07.2021 passed in WPA No. 108520 has been MAT 8621 questioned by the writ petitioner. The learned Single Judge has found that the dispute raised by the appellant is of civil nature and a factual Submission of the appellant in person is that the police is not justified in saying that it is civil dispute and that the police has wrongly handed over the possession of the premises and goods kept therein to the private respondent. Opposing the prayer learned Counsel for the respondent has submitted that the entire story which the appellant has tried to set up is based upon the factual controversy for which he is required to approach the appropriate forum and establish it by way of evidence. He submits that the police authorities have rescued the persons who were forcibly locked inside the premises. Having heard the learned Counsel for the parties and perusal of the records it is noticed that the appellant had come to the writ court with the plea that the premises in question was mortgaged in which he had started his business and was forcibly dispossessed therefrom. Following was the prayer made in the writ petition. A writ in the nature of Mandamus by directing the respondents their agents servants mainly the Respondent No. 1 and 2 to conduct an enquiry and suspend the respondent no. 5 and start departmental proceedings against the concerned officer that is respondent nos. 3 4 and 6. A writ in the nature of Mandamus directing the Respondent Nos. 1 and 2 to handover and restore the possession of the mortgaged property to the mortgagee A writ in the nature of mandamus directing the respondent nos. 1 and 2 for make necessary arrangements to do a fruitful investigation and taken necessary action in connection to Bidhannagar Police Station case no. MAT 8621 107 dated 25 8 2020 under section 341 323 406 506 of the Indian Penal Code 1860. and make the rule absolute. Rule N.I.S.I. in terms of prayer(b) andabove e) Pass such other or orders as Your Lordship may deed fit and proper.” The official respondents had denied the plea of forcibly dispossession by filing an affidavit in opposition and disclosing that 4 women including 2 senior citizens were locked in the premises in question and on receiving an intimation they were rescued. In the light of the aforesaid learned Single Judge has duly considered each of the prayers made by the appellant and has reach to the conclusion that considering the affidavit of the official respondents conclusion cannot be drawn that the police personnel were guilty of latches and breaches as complained of by the petitioner. In respect of the issue of mortgaged property and restoration of possession it has been found that the dispute is of civil nature between the private parties. Hence liberty has been granted to approach the appropriate forum in accordance with law. In respect of the police case a direction has been issued to conclude the investigation and submit a report before the jurisdictional Court within a time bound period. The perusal of the order passed by the learned Single Judge reveals that the issues raised by the appellant have been duly considered and appropriate conclusions have been drawn. In this view of the matter we do not find any informity or illegality in the order of the learned Single Judge. Hence no case is made out to interfere in MAT 8621 the order of the learned Single Judge. The appeal is found to be devoid of any merit which is accordingly dismissed. PRAKASH SHRIVASTAVA) CHIEF JUSTICE JUDGE

Mumthas C V/S Tahsildar

In Principal-Agent relationship, a responsibility is imposed on the Principal on the acts of Agent. The responsibility is based on common law principle “respondeat superior” (“let the master answer”). Petitioners 1 and 2, who are Primary Departmental Teachers working in Ugrapuram and Manjeri in Malappuram District, have filed this writ petition seeking to quash Exts.P1 and P2 communications issued by the 2nd respondent- Manager, Pandikkad Branch of the Kerala State Financial Enterprises Limited, directing the employers of the petitioners to recover the entire loan dues of the 5 th respondent, who is a subscriber of a chitty, from the salary of the petitioners at the rate of `10,000/- per month.The petitioners state that they have no transactions with the 2nd respondent-Pandikkad Branch though they are subscribers of chitty conducted by the KSFE, Manjeri Branch. The petitioners were enrolled in the chitty by one Rahmathulla, who is the husband of the 6 th respondent.The 6th respondent is a Staff Nurse in Government service. The 6th respondent is also a subscriber of chitty of KSFE. The petitioners state that Rahmathulla, the husband of the 6th respondent, compelled the petitioners to stand as surety for the chitty prized by the 6th respondent. The petitioners gave their salary certificates as surety for the chitty of the 6th respondent.ISSUE BEFORE THE COURT:Whether the late persons are also held liable for any fraud between the principal agent relationship?RATIO OF THE COURT:The court held after hearing all the learned counsels that Rahmathulla, who is alleged to have manipulated the transactions, was an Agent of the 2nd respondent, is not seen disputed by the respondents. The specific case of the petitioners is that they were made to believe that they are being supplied as sureties to the 6th respondent, who is the wife of Rahmatullah, for the purpose of enabling them to avail money from the chitty which he required to conduct the marriage of his daughter. The said documents were manipulated by the deceased Rahmatullah and submitted in the office of the 2nd respondent, making them appear that the petitioners have stood as sureties to the 5th respondent.The 5th respondent in his counter affidavit has stated that he himself was cheated by deceased Rahmathulla. After obtaining signatures of the 5th respondent, the late Rahmathulla, without the knowledge of the 5th respondent, opened a chitty account in the name of the 5th respondent and obtained a cheque in favour of the 5th respondent and then handed over it to the 5 th respondent pretending that the cheque is being given to the 5 th respondent in discharge of the dues payable by Rahmathulla. It was only when revenue recovery proceedings were initiated by the 1st respondent for default in repayment of chitty amounts that the 5th respondent came to know that he has been made the victim of a fraud.It has also come out that complaints were made to the Vigilance and Anti Corruption Bureau, which has made discreet enquiries in the matter and recommended a thorough investigation in the subject. It is an admitted position that Police has registered a Crime in respect of the fraudulent transactions carried out by Rahmathulla. Who are all involved in the fraudulent transactions will come out only after the culmination of criminal proceedings. While the facts are so, it will be a travesty of justice if the 2nd respondent is permitted to proceed to recover amounts from the salary of the petitioners, who are victims of the fraud.In the counter affidavit filed by the 2nd respondent, the 2nd respondent has not denied the allegation that the deceased Rahmathulla was an Agent of the 2nd respondent. The only defence of the 2nd respondent is that as per their records, the petitioners have signed documents to stand as sureties of the 5th respondent. It is to be noted that making of the 5th respondent as a chitty subscriber by itself, is by fraud. The deceased Rahmathulla being an Agent of the 2nd respondent, the 2nd respondent cannot pretend to be oblivious of the manipulative transactions made by the Agent and feign ignorance of the fraud committed by the late Rahmathulla whether it is with or without the connivance of the officials of the 2nd respondent-Branch.The late Rahmathulla is admittedly an Agent of KSFE and was working for the 2nd respondent. If the said Rahmathulla has committed any manipulations or fraud during the course of his engagement as Agent of KSFE, the KSFE has vicarious liability.The court stated that in Principal-Agent relationship, a responsibility is imposed on the Principal on the acts of Agent. The responsibility is based on common law principle “respondeat superior” (“let the master answer”). Employers are vicariously liable for acts and omissions of their employees. The imposition of liability is based on three reasons. Firstly, the Principal selects the Agent; secondly, the Principal has delegated performance of certain acts to the Agent and when the Principal enjoys the benefits of the acts of his Agent, he should bear the risk also; and thirdly, the Principal has given the Agent general authority to act.The court observed that the allegation of the petitioners is that late Rahmathulla was an Agent of the 2nd respondent-KSFE. They have asserted the same in Exts.P2 to P4 complaints. The 6th respondent, who is the wife of late Rahmathulla, has stated in her affidavit as well as in Ext.R6(a) complaint filed before the Court of the Chief Judicial Magistrate, Manjeri that the Rahmathulla was an Agent of the KSFE. The 2nd respondent has not denied the fact that late Rahmathulla was an Agent of KSFE.The 2nd respondent has also not disputed the material allegations made by the petitioners as regards the conduct of Rahmathulla. Therefore, the 2nd respondent cannot be heard to contend that these are disputed questions of fact. The 2nd respondent is vicariously liable to the misconduct or fraudulent conduct of their Agent. In the circumstances of the case, it would be a travesty of justice if the 2nd respondent is permitted to recover the amount defrauded by their Agent from the salary of the petitioners.DECISION HELD BY COURT:At last the court held that the writ petition is allowed. Exts.P1 and P2 communications are set aside.The 2nd respondent will be at liberty to recover the amounts due to KSFE by any means known to law, other than by way of recovering the amounts from the salary of the petitioners.

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR.JUSTICE N.NAGARESH THURSDAY THE 11TH DAY OF FEBRUARY 2021 22ND MAGHA 1942 WP(C).No.32296 OF 2016(J MUMTHAS C AGED 52 YEARS PD TEACHER ALP SCHOOL VADAKKUMMURI W O.AHAMMEDKUTTY HABEEBA MANZIL UGRAPURAM P.O. ARECODEERNAD TALUK MALAPPURAM DISTRICT BINDU ELLARTHODI PD TEACHER GOVT. BOYS HIGHER SECONDARY SCHOOL MANJERI VADAKKETHODI HOUSE KOVILAKOMKUNDU SOUTH MAJERI P.O. ERNAD TALUK TAHSILDAR REVENUE RECOVERY KERALA STATE FINANCIAL ENTERPRISES LTD. PALAKKAD 678 001 PALAKKAD DISTRICT MANAGER KERALA STATE FINANCIAL ENTERPRISES LTD. PANDIKKAD BRANCH PANDIKKAD P.O 676 541 THE HEAD MASTER ALP SCHOOL VADAKUMMURI URANGATTIRIR PIN 673 639 W.P.(C) No.32296 2016 2 THE HEAD MASTER GOVT. BOYS HIGHER SECONDARY SCHOOL MANJERI MANJERI P.O. 676 121 SIJU THOMAS VEERALASSERI HOUSE THOTTUMUKKOM PO 673324 W O.RAHMATHULLA AMBAZHATHINGAL HOUSE IRIYATTU PARAMBU VADAKKUMMURI URANGATTIRI ARECODE 676 510 KERALA STATE FINANCIAL ENTERPRISES LTD. REPRESENTED BY ITS GENERAL MANAGER HEAD OFFICE THRISSUR 680 020 THE GENERAL MANAGER KERALA STATE FINANCIAL ENTERPRISES LTD. HEAD OFFICE THRISSUR 680 020. ADDITIONAL R7 AND R8 ARE IMPLEADED VIDE ORDER DATED 04 01 21 IN IA No.2 2020 R1 BY ADV. SRI.ABDUL SHUKOOR MUNDAMBRA R1 BY ADV. SRI.BABU VARGHESE SR R5 BY ADV. SRI.T.MADHU R6 BY ADV. SRI.P.K.MOHAMED JAMEED R1 BY ADV. SRI.M.RAGHUKUMAR BY SRI.ALEXANDER.C.V. SC KERALA STATE R2 BY SURYA BINOY SC KSFE LTD R2 BY ADV. SRI.BABU VARGHESESC R1 BY GOVERNMENT PLEADER SMT. DEEPA NARAYANAN THIS WRIT PETITION HAVING BEEN FINALLY HEARD ON 11 02 2021 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING W.P.(C) No.32296 2016 3 N. NAGARESH J W.P.(C) No.32296 of 2016 Dated this the 11th day of February 2021 JUDGMENT ~ ~ ~ ~ ~ ~ ~ Petitioners 1 and 2 who are Primary Departmental Teachers working in Ugrapuram and Manjeri in Malappuram District have filed this writ petition seeking to quash Exts.P1 and P2 communications issued by the 2nd respondent Manager Pandikkad Branch of the Kerala State Financial Enterprises Limited directing the employers of the petitioners to recover the entire loan dues of the 5th respondent who is a subscriber of a chitty from the salary of the petitioners at the rate of `10 000 per month The petitioners state that they have no transactions with the 2nd respondent Pandikkad Branch of the W.P.(C) No.32296 2016 4 KSFE though they are subscribers of chitty conducted by the KSFE Manjeri Branch. The petitioners were enrolled in the chitty by one Rahmathulla who is the husband of the 6th respondent. The 6th respondent is a Staff Nurse in Government service. The 6th respondent is also a subscriber of chitty of KSFE. The petitioners state that Rahmathulla the husband of the 6th respondent compelled the petitioners to stand as surety for the chitty prized by the 6th respondent The petitioners gave their salary certificates as surety for the chitty of the 6th respondent The petitioners contend that the said Rahmathulla misused the salary certificates of the petitioners and submitted documents to show that the petitioners have agreed to stand as guarantors to the chitty loan of the 5th respondent. The manipulations were made with the connivance of the then Branch Manager of the KSFE Pandikkad Branch. The petitioners swear that they have not gone to the Pandikkad Branch office of the KSFE and have not signed or executed any documents in the Branch Office W.P.(C) No.32296 2016 5 so as to create any guarantee or security in favour of the 5 th respondent. While using the salary certificates of the petitioners as guarantors to the 5th respondent no documents were forwarded to the employers of the petitioners for cross As a bolt from the blue the 2nd respondent Manager of the Pandikkad Branch of KSFE issued letters to employers of the petitioners seeking to recover `10 000 from their salary. When the petitioners made enquiries with the 6th respondent she gave evasive replies. The petitioners learnt that a fraud has been played on them by the 5th respondent 6th respondent Rahmathulla and the 2nd The petitioners submitted Exts.P3 and P4 complaints to the Manager KSFE pointing out the fraud played on them. The petitioners specifically stated that they gave their salary certificates for standing as surety of the 6 th respondent. They further stated that Rahmathulla and his wife the 6th respondent came to their residence stated that W.P.(C) No.32296 2016 6 marriage of Rahmathulla‘s daughter has been fixed on 15.02.2015 and salary certificates of the petitioners are required to renew and enhance the loan in the name of the 6th respondent. Though the petitioners were reluctant since it was for marriage of the young daughter of Rahmathulla the petitioners gave their salary certificates. It was misusing the salary certificates that the petitioners were made sureties of the 5th respondent The petitioners submitted complaints to the Vigilance and Anti Corruption Bureau also as evidenced by Ext.P5. On a discreet enquiry on that complaint the Dy.S.P. VACB found the allegations to be prima facie true. The Dy.S.P. VACB forwarded Ext.P6 letter to the Director Vigilance and Anti Corruption Bureau Thiruvananthapuram recommending to register a case and investigate. While investigation is pending in the matter the 2nd respondent took coercive steps against the petitioners for recovery of the amount due from the 5th respondent. The petitioners thereupon submitted Exts.P7 and P8 complaints to their W.P.(C) No.32296 2016 7 employers. As the response of the employers was not encouraging the petitioners have approached this Court The 5th respondent in respect of whose dues recovery is sought to be made from the salary of the petitioners filed a counter affidavit. The 5th respondent stated that he subscribed to chitty. Chitty instalments were being paid directly to Rahmatullah. The said Rahmatullah was in dire need of money in connection with the marriage of his daughter and took money from the 5th respondent. He agreed to repay the amount availing loan from KSFE Subsequently Rahmathulla handed over a KSFE cheque to the 5th respondent drawn in favour of the 5th respondent informing that he himself availed a chitty loan from KSFE Pandikkad Branch and he got the cheque issued in the name of the 5th respondent. When the 5th respondent asked as to how KSFE can issue a cheque in his favour in respect of chitty amount payable to Rahmathulla the said Rahmathulla informed that if the cheque is issued in the name of Rahmathulla his banker will appropriate the money towards W.P.(C) No.32296 2016 8 debt due. Rahmathulla also informed the 5th respondent that if a written request is made by the chitty holder cheque can be drawn by KSFE in favour of a third party The 5th respondent further stated in his affidavit that subsequently after the marriage of his daughter Rahmathulla committed suicide. Thereafter the 5th respondent came to know that the Rahmathulla subscribed a chitty in the name of the 5th respondent without his knowledge and obtained money from KSFE which was paid by Rahmathulla to the 5th respondent pretending that the money is in respect of Rahmathulla’s chitty and he is paying money to the 5th respondent in discharge of his debt. The 5th respondent was later issued with a revenue recovery notice by the KSFE authorities seeking recovery of money. The 5th respondent stated that he is also a victim to the fraud committed by Rahmathulla The 6th respondent who is the wife of the said Rahmathulla filed a counter affidavit. The 6th respondent stated that her husband Rahmathulla was an Agent of the 2nd W.P.(C) No.32296 2016 9 respondent KSFE for 15 years. Rahmathulla even misused the salary certificate of the 6th respondent in connivance with the officers of the 2nd respondent KSFE and made the 6th respondent as a surety for many chitty transactions without the knowledge of the 6th respondent. The husband of the 6th respondent committed suicide due to heavy debt he incurred while working as Agent of KSFE. The 6th respondent filed Ext.R6(a) and a criminal complaint against the employees of the KSFE alleging offences punishable under Sections 419 465 and 468 read with Section 34 of the Indian Penal Code The Chief Judicial Magistrate Manjeri forwarded the complaint to Manjeri police who registered Crime No.485 2017 against the officials of the KSFE as evidenced by Ext.R6(b) FIR 10. The 2nd respondent Manager of KSFE Pandikkad Branch filed a counter affidavit. The 2nd respondent contended that the writ petition is not maintainable. The disputes raised by the petitioners are questions of fact and cannot be agitated in a writ petition. The 2 nd respondent W.P.(C) No.32296 2016 10 stated that as per the records available the 5th respondent had availed loan from KSFE. The petitioners have provided employment certificate agreeing to stand as sureties to the 5th respondent. Exts.R2(b) and R2(c) employment certificates were signed by the petitioners and their employers. The petitioners have executed Ext.R2(f) chitty loan agreements agreeing to be sureties of the 5th respondent. The petitioners are now disputing their civil liability. There is no progress in the investigation conducted by the police in the criminal case 11. The counsel for the petitioners argued that the transactions under which the petitioners are made sureties to the 5th respondent are fraught with fraud. The petitioners have never consented to stand as sureties to the 5th respondent. Rahmathulla made the petitioners to impart with their salary certificates and made them sign documents making the petitioners to believe that their signatures are obtained to stand as surety to the 6th respondent. After a preliminary discreet enquiry the Dy.S.P. of Police Vigilance and Anti Corruption Bureau has recommended to register W.P.(C) No.32296 2016 11 criminal cases against the fraudsters. Rahmathulla was an Agent of the KSFE and therefore the KSFE cannot shirk off the consequences of the fraud committed by their Agent. It would be unjust if recovery proceedings are made and huge amounts are recovered from the salary of the petitioners 12. Learned Standing Counsel for the 2nd respondent on the other hand contended that the Police has so far not completed the investigation proceedings. Therefore it cannot be said that there was a fraud at all. The documents signed by the petitioners would show that they have stood as surety to the 5th respondent. Relying on the judgments of this Court in Chinnaswamy S. v. State of Kerala and 2009 KLJ 511] Kerala Small Industries Development Corporation Ltd. v. PrakasanKLT 893] and a judgment of this Court in W.P.(C) No.24586 2019 the learned counsel for the 2nd respondent argued that a dispute of this nature cannot be decided by this Court in exercise of the discretionary jurisdiction under Article 226 of the Constitution of India. Hence the writ petition is liable to W.P.(C) No.32296 2016 12 be dismissed. The petitioners will have to approach civil court to establish fraud I have heard the learned counsel for the petitioners learned Government Pleader representing the 1st respondent the learned Standing Counsel for respondents 2 to 4 and the learned counsel appearing for respondents 5 14. The fact that Rahmathulla who is alleged to have manipulated the transactions was an Agent of the 2nd respondent is not seen disputed by the respondents. The specific case of the petitioners is that they were made to believe that they are being supplied as sureties to the 6th respondent who is the wife of Rahmatullah for the purpose of enabling them to avail money from the chitty which he required to conduct the marriage of his daughter. The said documents were manipulated by the deceased Rahmatullah and submitted in the office of the 2nd respondent making them appear that the petitioners have stood as sureties to the 5th respondent W.P.(C) No.32296 2016 13 15. The 5th respondent in his counter affidavit has stated that he himself was cheated by deceased Rahmathulla. After obtaining signatures of the 5th respondent the late Rahmathulla without the knowledge of the 5th respondent opened a chitty account in the name of the 5th respondent and obtained a cheque in favour of the 5 th respondent and then handed over it to the 5 th respondent pretending that the cheque is being given to the 5th respondent in discharge of the dues payable by Rahmathulla. It was only when revenue recovery proceedings were initiated by the 1st respondent for default in repayment of chitty amounts that the 5th respondent came to know that he has been made the victim of a fraud 16. The 6th respondent who is none other than the wife of late Rahmathulla who is working as a Staff Nurse in a Government institution filed an affidavit stating that the salary certificates of the 6th respondent were also manipulated by her deceased husband and made use for defrauding the KSFE. The 6th respondent herself is facing W.P.(C) No.32296 2016 14 the heat as a result of the fraudulent transactions made by her late husband It has also come out that complaints were made to the Vigilance and Anti Corruption Bureau which has made discreet enquiries in the matter and recommended a thorough investigation in the subject. It is an admitted position that Police has registered a Crime in respect of the fraudulent transactions carried out by Rahmathulla. Who are all involved in the fraudulent transactions will come out only after the culmination of criminal proceedings. While the facts are so it will be a travesty of justice if the 2nd respondent is permitted to proceed to recover amounts from the salary of the petitioners who are victims of the fraud 18. The stand of the 2nd respondent is that as per their records the petitioners have stood as guarantors to the 5th respondent and executed agreements. The 2nd respondent is relying on employment certificates attached to Ext.R2(b) and Ext.R2(c). The petitioners would contend that signatures were obtained on Ext.R2(b) and R2(c) without making it W.P.(C) No.32296 2016 15 known that the petitioners are being made sureties of the 5th respondent. Exts.R2(b) and R2(c) documents would only show that the employers of the petitioners have certified the genuineness of the employment date of retirement and salary of the petitioners. According to the petitioners signatures in Ext.R2(f) agreement were obtained from them without disclosing the true facts In the light of the affidavits filed by respondents 5 and 6 it is evident that the 5th respondent has not bona fide made any application to join KSFE chitty and to make the petitioners surety of the 5th respondent. However manipulating the situation the late Rahmathulla has not only enrolled the 5th respondent in the chitty but received money on behalf of the 5th respondent making it appear that the petitioners have agreed to stand as Sureties to the 5th respondent. The 6th respondent who is the wife of the deceased Rahmathulla swears that Rahmathulla has similarly conducted manipulations and frauds in the 2nd respondent Branch of KSFE on a large scale. The 6 th W.P.(C) No.32296 2016 16 respondent would swear that her own salary certificates were taken by her late husband and misused and the 6 th respondent is facing the consequences. There is no reason to disbelieve the statements made by respondents 5 and 6 in their affidavits filed before this Court In the counter affidavit filed by the 2nd respondent the 2nd respondent has not denied the allegation that the deceased Rahmathulla was an Agent of the 2nd respondent The only defence of the 2nd respondent is that as per their records the petitioners have signed documents to stand as sureties of the 5th respondent. It is to be noted that making of the 5th respondent as a chitty subscriber by itself is by fraud The deceased Rahmathulla being an Agent of the 2nd respondent the 2nd respondent cannot pretend to be oblivious of the manipulative transactions made by the Agent and feign ignorance of the fraud committed by the late Rahmathulla whether it is with or without the connivance of the officials of the 2nd respondent Branch W.P.(C) No.32296 2016 17 21. The late Rahmathulla is admittedly an Agent of KSFE and was working for the 2nd respondent. If the said Rahmathulla has committed any manipulations or fraud during the course of his engagement as Agent of KSFE the KSFE has vicarious liability. In Principal Agent relationship a responsibility is imposed on the Principal on the acts of Agent. The responsibility is based on common law principle “respondeat superior” No.32296 2016 18 the late Rahmathulla has not manipulated the records as alleged by the petitioners. The only defence of the 2nd respondent is that as per the records maintained by them the petitioners are sureties and this being a disputed question of fact the Court should not exercise its jurisdiction under Article 226 of the Constitution 24. The allegation of the petitioners is that late Rahmathulla was an Agent of the 2nd respondent KSFE They have asserted the same in Exts.P2 to P4 complaints The 6th respondent who is the wife of late Rahmathulla has stated in her affidavit as well as in Ext.R6(a) complaint filed before the Court of the Chief Judicial Magistrate Manjeri that the Rahmathulla was an Agent of the KSFE. The 2nd respondent has not denied the fact that late Rahmathulla was an Agent of KSFE. The 2nd respondent has also not disputed the material allegations made by the petitioners as regards the conduct of Rahmathulla. Therefore the 2nd respondent cannot be heard to contend that these are disputed questions of fact. The 2nd respondent is vicariously W.P.(C) No.32296 2016 19 liable to the misconduct or fraudulent conduct of their Agent In the circumstances of the case it would be a travesty of justice if the 2nd respondent is permitted to recover the amount defrauded by their Agent from the salary of the In the circumstances the writ petition is allowed Exts.P1 and P2 communications are set aside. The 2nd respondent will be at liberty to recover the amounts due to KSFE by any means known to law other than by way of recovering the amounts from the salary of the petitioners N. NAGARESH JUDGE W.P.(C) No.32296 2016 20 EXHIBITS TRUE COPY OF THE DEMAND NOTICE ISSUED BY THE 2ND RESPONDENT TO THE 3RD TRUE COPY OF THE DEMAND NOTICE ISSUED BY THE 2ND RESPONDENT TO THE 4TH TRUE COPY OF THE COMPLAINT DATED 23 1 2016 SUBMITTED BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT TRUE COPY OF THE COMPLAINT SUBMITTED BY THE 2ND PETITIONER BEFORE THE 2ND TRUE COPY OF THE COMPLAINT SUBMITTED BY THE 2ND PETITIONER BEFORE THE DY SP VIGILANCE AND ANTI CORRUPTION BUREAU MALAPPURAM TRUE COPY OF THE LETTER DATED 23 7 2016 SEND BY THE DY.SP VACB MALAPPURAM TO THE DIRECTOR VACB TRUE COPY OF THE COMPLAINT DATED 28 1 2016 SUBMITTED BY THE 1ST PETITIONER BEFORE THE 3RD RESPONDENT TRUE COPY OF THE COMPLAINT DATED 4 2 2016 SUBMITTED BY THE 2ND PETITIONER BEFORE THE 4TH RESPONDENT RESPONDENTS EXHIBITS THE TRUE COPY OF THE PRIVATE COMPLAINT FILED BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT MANJERI W.P.(C) No.32296 2016 21 THE TRUE COPY OF THE FIR IN CRIME NO.485 2017 OF MANJERI POLICE TRUE COPY OF THE LOAN APPLICATION DATED 23.01.2015 FILED BY THE 5TH TRUE COPY OF THE APPLICATION FORM ALONG WITH EMPLOYMENT CERTIFICATE AND AGREEMENT FOR RECOVERY FROM SALARY EXECUTED BY THE 1ST PETITIONER AS WELL AS THE 3RD RESPONDENT DATED TRUE COPY OF THE APPLICATION FORM ALONG WITH EMPLOYMENT CERTIFICATE AND AGREEMENT FOR RECOVERY FROM SALARY EXECUTED BY THE 2ND PETITIONER AS WELL AS THE 4TH RESPONDENT DATED TRUE COPY OF THE COMMUNICATION DATED 07.02.2015 ISSUED BY THE OFFICE OF THE 2ND RESPONDENT TO THE 3RD RESPONDENT TO CONFIRM THE GENUINENESS OF THE GUARANTOR IN RESPECT OF THE 5TH RESPONDENT S NCL ACCOUNT TRUE COPY OF THE COMMUNICATION DATED 07.02.2015 ISSUED BY THE OFFICE OF THE 2ND RESPONDENT TO THE 4TH RESPONDENT TO CONFIRM THE GENUINENESS OF THE GUARANTOR IN RESPECT OF THE 5TH RESPONDENT S NCL ACCOUNT TRUE COPY OF THE CHITTY LOAN AGREEMENT EXECUTED BY THE PETITIONERS AS WELL AS THE 5TH RESPONDENT DATED TRUE COPY OF THE IDENTITY CARD SUBMITTED BY THE 5TH RESPONDENT TRUE COPY OF THE IDENTITY CARDS SUBMITTED BY THE 1ST PETITIONER TRUE COPY OF THE IDENTITY CARDS SUBMITTED BY THE 2ND PETITIONER

The Father shall not be considered to be a dependent till he has a source of income.: Allahabad High Court

Father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependent on the father. Such an opinion was given by the Hon’ble Allahabad High Court before Hon’ble Justice Subhash Chandra Sharma in the matter of Karan Singh vs  Mandaliya Prabandhak National Insurance Co. Ltd. And Ors [FIRST APPEAL FROM ORDER No. – 443 of 2006]. The fact of the matter was that the deceased Vivek Kumar Singh son of appellant was traveling by bus from Delhi, as it arrived at the limit of police station Gabhana, a truck coming from the opposite direction (Aligarh) driven rashly and negligently by its driver collided with the bus in which deceased Vivek Kumar Singh sustained injuries and died. Learned Tribunal on the basis of pleadings and after appreciating the evidence brought on record by the parties, both oral and documentary held that accident took place due to rash and negligent driving of the drivers of both the offending vehicles and determined the liability 50-50% and awarded a sum of Rs. 85,000/- along with 6% interest. Aggrieved by the said order, the plaintiff preferred the instant appeal. The Hon’ble High Court held that the Tribunal errored in calculating in presuming the notional income of the deceased Rs. 15000/- p.a. on the place of Rs.36000/- and the multiplier prescribed for the age group of 21-25 years is 18. Additionally, the Hon’ble High Court also held that “Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and a large number of younger non- earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third.” Finally, the Hon’ble High Court allowed the appeal of the claimant and granted an award of Rs. 483,600/- Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur The fact of the matter was that the deceased Vivek Kumar Singh son of appellant was traveling by bus from Delhi, as it arrived at the limit of police station Gabhana, a truck coming from the opposite direction (Aligarh) driven rashly and negligently by its driver collided with the bus in which deceased Vivek Kumar Singh sustained injuries and died. Learned Tribunal on the basis of pleadings and after appreciating the evidence brought on record by the parties, both oral and documentary held that accident took place due to rash and negligent driving of the drivers of both the offending vehicles and determined the liability 50-50% and awarded a sum of Rs. 85,000/- along with 6% interest. Aggrieved by the said order, the plaintiff preferred the instant appeal. The Hon’ble High Court held that the Tribunal errored in calculating in presuming the notional income of the deceased Rs. 15000/- p.a. on the place of Rs.36000/- and the multiplier prescribed for the age group of 21-25 years is 18. Additionally, the Hon’ble High Court also held that “Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and a large number of younger non- earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third.” Finally, the Hon’ble High Court allowed the appeal of the claimant and granted an award of Rs. 483,600/- Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur The Hon’ble High Court held that the Tribunal errored in calculating in presuming the notional income of the deceased Rs. 15000/- p.a. on the place of Rs.36000/- and the multiplier prescribed for the age group of 21-25 years is 18. Additionally, the Hon’ble High Court also held that “Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and a large number of younger non- earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third.” Finally, the Hon’ble High Court allowed the appeal of the claimant and granted an award of Rs. 483,600/- Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur Additionally, the Hon’ble High Court also held that “Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and a large number of younger non- earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third.” Finally, the Hon’ble High Court allowed the appeal of the claimant and granted an award of Rs. 483,600/-

Case : FIRST APPEAL FROM ORDER No. 4406 Appellant : Karan Singh Respondent : Mandaliya Prabandhak National Insurance Co. Ltd Counsel for Appellant : N.D. Shukla Counsel for Respondent : Jitendra Kumar Mangla Prasad Rai R.P. Ram S.M.Upadhyay Shyam Murari Upadhyay Smt Archana Singh Sudhir Dixit Hon ble Subhash Chandra Sharma J Heard Shri D.N. Shukla learned counsel for appellant as well as Ms. Manjima Singh Advocate holding brief of Ms Archana Singh learned counsel for Insurance Company and perused the record This appeal u s 173 of the Motor Vehicles Act has been filed by the claimant appellant challenging the judgment and award dated 08.11.2005 passed by the Additional District Judge M.A.C.T. Court No. 6 Aligarh by which a sum of Rs 85 000 along with 6% interest has been awarded as compensation on account of death of deceased Facts in brief are that an application under Section 166 Motor Vehicles Act was filed by the claimant appellant seeking compensation to the tune of Rs. 8 00 000 with 12 % interest alleging that on 15.09.2000 deceased Vivek Kumar Singh son of appellant was traveling by bus bearing no. UP14B2331 from Delhi as it arrived in the limit of police station Gabhana a truck bearing no. H.N.V.9465 coming from opposite directiondetermined the compensation to the tune of Rs. 80 000 and further awarded a sum of Rs. 5000 funeral expenses. In this manner a total sum of Rs. 85 000 was determined as compensation payable to the claimant appellant Learned counsel for appellant submits that the Tribunal has wrongly assessed the notional income of the deceased as Rs 15 000 p.a. and also applied the multiplier on the basis of the age of parents. No amount has been assessed for future prospect loss of estate love & affection. Very less amount has been assessed for funeral expenses. In this way award is very meagre. Learned counsel for respondent opposed the above 7. Considered the arguments advanced by learned counsel for the appellant as well as learned counsel for Insurance Company and perused the record The submission of learned counsel for appellant is that notional income of Rs. 15000 p.a. of deceased as presumed by the tribunal is very meagre. In this regard it is noteworthy that deceased was unskilled person whose income was not proved. In the case of Mohd. Unus Vs. Rais Najnien Begum and others2015(2)TAC526 this court enhanced the notional income of Rs.15000 to Rs.36000 p.a. Likewise in the case of State of Haryana and another Vs. Jasbir Kaur and others of the Table abovewhich starts with an operative multiplier of 18 reduced by one unit for every five years that is M 17 for 26 to 30 years M 16 for 31 to 35 years M 15 for 36 to 40 years M 14 for 41 to 45 years and M 13 for 46 to 50 years then reduced by two units for every five years that is M 11 for 51 to 55 years M 9 for 56 to 60 years M 7 for 61 to 65 years and M 5 for 66 to 70 years.” 11. The scheme of multiplier has been again affirmed by Hon ble the Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi and others 2017 Supreme(SC) 1050 In the view of the dictum of Hon ble the Apex Court in the case of Sarla Verma and Pranay Sethi the multiplier of 18 should be applied at the age of 21 25 because the age of deceased was between 21 25 years at the time of accident as per record. In this regard the multiplier applied by the learned tribunal seems to be incorrect 13. So far as the amount to be deducted towards personal expenses in the case of bachelor is concerned it has been held by Hon ble the Apex Court in the case of Pranay Sethi 3 SLR601 Court we are of the view that where the deceased was married the deduction towards personal and living expenses of the deceased should be one third 1 3rd) where the number of dependent family members is 2 to 3 one fourth where the number of dependent family members is 4 to 6 and one fifth where the number of dependent family members exceeds six. 31. Where the deceased was a bachelor and the claimants are the parents the deduction follows a different principle. In regard to bachelors normally 50% is deducted as personal and living expenses because it is assumed that a bachelor would tend to spend more on himself. Even otherwise there is also the possibility of his getting married in a short time in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further subject to evidence to the contrary the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary brothers and sisters will not be considered as dependants because they will either be independent and earning or married or be dependent on the father. 32. Thus even if the deceased is survived by parents and siblings only the mother would be considered to be a dependant and 50 would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However where the family of the bachelor is large and dependent on the income of the deceased as in a case where he has a widowed mother and large number of younger non earning sisters or brothers his personal and living expenses may be restricted to one third and contribution to the family will be taken as two third.” In view of the above deduction in the head of personal expenses of the deceased who was bachelor at the time of accident are to be made to the extent of 50 % on the place 1 3 of the amount of the income 15. Further submitted by learned counsel for the appellants that no compensation has been determined in the head of future prospects. Hon ble the Apex Court has held in the case of National Insurance Company Vs. Pranay Sethi that while determining the income an addition of 40 % of the established income should be awarded where the deceased being self employed or on the fixed salary was below the age of 40 years and an addition of 25 % where the deceased was between the age of 40 50 years and 10 % where the deceased was between the age of 50 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component Learned tribunal has not determined any amount of compensation in the head of future prospects as provided by Hon ble the Apex Court in the aforesaid case. In this regard it has committed the manifest error of law in not determining any amount in future prospects of the deceased. In view of the above the age of the deceased being between 21 25 years at the time of accident the additional amount of 40 % be added to the income as future prospect 18. As the submission of the learned counsel for the appellants in support of amount for conventional head is concerned Hon ble the Apex Court has held in the case of Pranay Sethithat reasonable figure for conventional head namely loss of estate consortium and funeral expenses should be Rs. 15000 40000 and 15000 respectively. The aforesaid amount should be enhanced @ 10 % in every three years In this way learned tribunal is not right on the point of making determination of amount for loss of estate and funeral expenses. Since deceased was unmarried therefore no amount in the head of loss of consortium can be given In view of the above facts and discussions the compensation to be paid to the claimant appellant has to be redetermined as under 3000 per 40 % ofabove to be added as Rs. 3000 + 1200 Rs. 4200 per 50 % ofdeducted as personal Rs. 2100 expenses of deceased Compensation after multiplier of 2100 x 12 x 18) Loss of Estate 4 53 600 Rs. 15 000 Rs. 15000 Total compensation awarded Rs. 4 83 600 21. The claimants appellants shall also be entitled to 7% simple interest as awarded by tribunal on the amount from the date of filing of application till the date of actual payment 22. Accordingly the appeal filed by the claimant appellant is Partly Allowed and award stands modified to the extent directed above and the claimant appellant shall be entitled for payment of Rs. 483 600 (four lacs eighty three thousand six hundred as determined above from the opposite parties no 1 & 2 in the same proportion as directed by the learned tribunal 23. No order as to costs Order Date : 24th November 2021 Subhash Chandra Sharma J

It Is Settled Law That Terms of The Insurance Policy Shall Governed the Contract Between the Parties: Karnataka State Consumer Disputes Redressal Commission

The contract’s conditions must be strictly followed and given natural meaning. Once a policy has been specifically excluded, it cannot be reinstated under any situation. However, the Complainant was found to have not followed the definition provided. This was observed in the matter of MD & CEO ING Vysya Life Insurance Co Ltd v. G.H Govindappa, [ A/641/2017], before Hon’ble Mr. Ravishankar (Presiding Member) and Hon’ble Mrs. Smt. Sunita Channabasappa Bagewadi (Member). The brief facts of the case are as follows, the Complainant bought two insurance policies from the Opposite Party, after which the insurance company sent the original policy bond and a booklet containing the terms and conditions. Soon after, the complainant contacted the OP but did not receive a satisfactory response. In 2014, the complainant asked for a refund, which the company did not repay, therefore, the complainant sent a legal notice to the company saying he did not want to continue with the policies he bought. The Company did not respond to him. It was contended by the OP that the complaint is unmaintainable and deserved to be dismissed. The OP brought it to the notice of the Commission that, the complainant had given his declaration that he understood the terms of the policy and paid the premium amounts. As per Regulation 6(2) of the IRDAI, the policy holder can cancel the policy mentioning the reasons within 15 days from the day the policy is received, this is called the “free look period”. However, the complainant never approached the company within the said period, bur approached the OP after one and half years. On April 21, 2014, the complainant issued a letter stating that he was unable to pay additional premiums due to crop failure in 2013-14 that caused his financial hardship. The Opposite Party dismissed the complainant’s request on June 12, 2014, in accordance with the policy terms and conditions. The District Commission had allowed the Complaint even though the complainant failed to pay the renewal premiums that were due in 2013, causing the policies to lapse. Furthermore, the opposing party sent frequent reminders via SMS/letters, but the complainant still failed to redo the policies. After referring the District Commission’s decision, and the relevant documents presented by both parties, the State Commission came to the following conclusion: “It is settled law that terms of the policy shall governed the contract between the parties. They have not abided by the definition given therein. Hence, the terms of the contract have to be strictly read and natural meaning be given to it. Once there is specific exclusion of the policy, the same cannot be permitted under any circumstances. Hence, in our opinion, the complainant violated the terms and conditions as per the policy bonds in both policies. Hence, the Opposite Party was fully justified in cancelled the both policies. Moreover, as per the terms and conditions of the policies, the complainant has opportunity to cancel the policy, but, the complainant has not cancelled the policies within free look period of 15 days and the complainant has not renewed the policies during 2013 even after the course of period and reminders made by the Opposite Party also. Hence, for the reasons stated above, the order passed by the District Commission cannot be sustained in same as hereby set aside.”

KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION BASAVA BHAVAN BANGALORE First Appeal No. A 641 2017 Date of Filing : 13 Mar 2017 Arisen out of Order Dated 10 02 2017 in Case No. CC 514 2015 of District Bangalore 2nd 1. MD & CEO ING Vysya Life Insurance Co Ltd ING Vysya House 5th Floor No.2 M.G.Road Bangalore 560 001. Presently known as Exide Life Insurance Co Ltd.3rd Floor JP Techno Park No.3 1 Millers Road Bengaluru 560 001 1. G.H. Govindappa S o late Hanumanthappa No.4 1772 C o Thikkiah Jonna Veeriah Colony KLD Main Road Ananthapur HON BLE MR. Ravishankar PRESIDING MEMBER HON BLE MRS. Smt.Sunita Channabasappa Bagewadi MEMBER Dated : 05 Oct 2021 Final Order Judgement BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION BANGALORE DATED THIS THE 5 DAY OF OCTOBER 2021 MR. RAVISHANKAR : JUDICIAL MEMBER MRS. SUNITA CHANNABASAPPA BAGEWADI : MEMBER APPEAL NO. 641 2017 MD & CEO 1 ING Vysya Life Insurance Company Ltd. ING Vysya House 5 Floor No.22 M.G. Road Bangalore 01 PRESENTLY KNOWN AS Excide Life Insurance Company Ltd. Known as ING Vysya Life Insurance Company Ltd Floor JP Techno Park No.3 1 Millers Road Bengaluru 560 001 By Sri V. Raman Sri G.H. Govindappa S o Late Hanumanthappa No.4 1772 C o Thikkiah K.L.D. Main Road ANANTHAPUR515 001 Jonna Veeriah Colony MRS. SUNITA CHANNABASAPPA BAGEWADI MEMBER 2 The appellant Opposite Party has preferred this appeal being aggrieved by the Order Additional District Consumer dt.10.02.2017 passed in CC.No.514 2015 on the file of 2 Disputes Redressal Commission Bangalore The facts leading to the appeal are as hereunder It is the case of the complainant that he had purchased two insurance policies on the assurance of Opposite Party company agent vide policy bearing No.025112951 for a sum of Rs.50 000 and another policy bearing No.02584060 for Rs.2 10 000 . The complainant has paid the said amount by way of cheque drawn ING Vysya Bank Ltd. Ramachandrapuram Branch Ananthapur Town. After making payment the Opposite Party insurance company sent original policy bond along with booklet of terms and conditions after purchasing the said terms and conditions let through complainant well wishers the complainant got shock and surprise. Subsequently the complainant contacted the agent of the Opposite Party and the Manager but they had not replied satisfaction of the complainant after thatof protection of policy holders interest. Regulation 2002 issued by the IRDAI the policy holder proposer is at liberty to review the terms and condition of the policy and has the option to cancel the policy by stating the reasons for his her objection within 15 days of receipt of policy bond i.e. “free look period”. In such a case the company shall refund the premium received for this policy after deducting the proportionate risk the premium for the period of risk cover and expenses incurred by the Opposite Party company on account of medical examination and on stamp duty charges the said facts were clearly intimated in the welcome letters which were issued to the complainant along with the policy schedule and terms and conditions. However the complainant had never approached the Opposite Party within free look period. Hence it is presumed that the complainant is duly satisfied with the policies terms and conditions which were issued to him and complainant is estoppels from challenging the terms and conditions beyond free look period. Further the complainant not paid renewal premium which were due on 2013 because of which policies stand lapsed and respectively. The Opposite Party 3 has sent repeated reminder by way of SMS letters but still complainant failed to reinstall the policy and all such effort of gone in vein The complainant approached the Opposite Party in the month of June 2014 i.e. after one and half years of issuance of policies with an allegation that Opposite Party mis sold the policy as single premium policies. In the complainant letter dt.21.04.2014 he could not able to pay further premium to the policy due to crop failure in the year 2013 2014 and he is financial crunch for this reason the Opposite Party receipt of such complaint duly ascertained the facts and after considering the material document on place rightly rejected the request for such cancellation of the policy vide letter dt.12.06.2014 again the complainant approached the Opposite Party with letter dt.24.06.2014 asking Opposite Party company to refund the premiums which was also duly regretted by the Opposite Party after speaking to them stating same is not permissible as per the policy terms and conditions After trial the District Commission allowed the complaint and directed the Opposite Party to refund Rs.2 95 000 to the complainant with interest at 8% p.a. from the date of payment till realization along with costs Notice was issued to legal heirs of respondent through paper publication in a English daily newspaper “Deccan “Chronicle” and Telugu newspaper “Andhra Prabha” Ananthapur Edition but none of them appeared before this Commission. Perused the appeal memo Order passed by the District Commission and materials on record it is an admitted fact that the complainant has obtained two policies from the Opposite Party company bearing No.025112951 by name ING Secured Income Insurance Regular for the period of 10 years on 21.08.2012 premium is Rs.48 501 p.a. and another policy is ING Star Life Insurance Policy bearing No.02584060 on 21.12.2012 for 12 years and the premium is Rs.2 52 205 p.a. It is also an admitted fact that after making payment of the first premium of both policies the Opposite Party issued a policy bond along with booklets of terms and conditions. In the present case the main allegation of the complainant is that after issuing the legal notice and after several requests for demanding to repay the amount of the two policies as the complainant has no interest to continue the abovesaid policies there is no response from the Opposite Party side. The Opposite Party in his objection in lower court contended that as per regulation 6of protection to policy holders the interest. Regulation 2002 issued by the IRDAI the policy holder proposer is at liberty to review the terms and conditions of the policy and has the option to cancel the policy by stating the reasons within 15 days of receipt of policy bond i.e. free look period. The complainant has not made such i.e. the complainant has not cancelled the policies means he has accepted the terms and conditions of the policy bond. In such case the company shall refund the premium received for the policy after deducting the property risk the premium for the period of risk cover and expenses incurred by the Opposite Party company on account of medical examination and on stamp duty charges. However the complainant had never approached the Opposite Party within free look period. Further the complainant has not paid renewal premium which were due on 2013 because of which such policies stands lapsed. Moreover the Opposite Party has sent repeated reminders by way of SMS letters but sill the complainant failed to reinstall the policies and after lapse of 1 ½ year. The complainant issued a letter on 21.04.2014 that he could not able to pay further premium to the policies due to crop failure in the year 2013 14 and his financial crunch for this reason. Hence after considering the material documents on place the Opposite Party rejected the request of the complainant on 12.06.2014 as per the policy terms and conditions 4 Perused the appeal memo and materials on record. We agree that as per the policy bond clause 4.4.2 of the Policy No.02512951 and clause 4.4.2 of policy No.02584060. In the present case in the first policy the complainant has not paid 3 full years of premium and in second policy the complainant is entitled for surrender value of the policy immediately on the date of surrender or at the end of three policy years whichever is later. It means the complainant is eligible for surrender value of policy No.2 only after the end of three policy years i.e. after 20.12.2015. It is settled law that terms of the policy shall governed the contract between the parties. They have not abide by the definition given therein. Hence the terms of the contract has to be strictly read and natural meaning be given to it. Once there is specific exclusion of the policy the same cannot be permitted under any circumstances. Hence in our opinion the complainant violated the terms and conditions as per the policy bonds in both policies. Hence the Opposite Party was fully justified in cancelled the both policies. Moreover as per the terms and conditions of the policies the complainant has opportunity to cancel the policy but the complainant has not cancelled the policies within free look period of 15 days and the complainant has not renewed the policies during 2013 even after the course of period and reminders made by the Opposite Party also. Hence for the reasons stated above the order passed by the District Commission cannot be sustained in same as hereby set aside. Hence the following The appeal is allowed. Consequently the complaint is dismissed The amount in deposit shall be refunded to the appellant Forward free copies to both parties Sd Sd MEMBER JUDICIAL MEMBER HON BLE MR. Ravishankar HON BLE MRS. Smt.Sunita Channabasappa Bagewadi 5

Criminal Petition seeking the petitioner to be enlarged on Bail for the offence of theft, rejected by the court: Karnataka High Court

The criminal petition is filed under section 438 ( special powers of high court Or court of session regarding bail) of Cr.P.C seeking for the enlargement on bail for the offence punishable under section 379 ( punishment for theft)of IPC. And the petition was rejected by the High court of karnataka in the case of Honnappa Durgappa Malagi @ Ravi and Ramesh vs state of Karnataka ( criminal petition no. 485) on 25th January 2022. Brief facts of the case are that the two petitioners along with juvenile offenders were indulged in committing the offence of theft of vehicles and when the juvenile offenders were apprehended, they revealed the name of these petitioners and hence case has been registered against them and in total 27 cases are booked against the petitioners as well as the juvenile offenders in different crimes in 2021 only. Arguments presented by the learned counsel appearing on behalf of the petitioner that only based on the juvenile offenders’ statement, these petitioners have been arraigned as accused and no recovery is made at the instance of the petitioners. The juvenile offenders gave the information about where they have kept the vehicles and the alleged recovery is made at the instance of the petitioners and these petitioners have not indulged in such offence and hence they may be enlarged on bail. Arguments presented by the learned high court government pleader appearing on behalf of the respondent state that these petitioners have committed 27 crimes in total and all the offences are punishable under Section 379 of IPC and recoveries are also made at the instance of the petitioners. In total three recoveries are made; at the first instance, one vehicle was recovered; at the second instance, three vehicles are recovered; at the third instance, three vehicles are recovered and at the fourth instance, three vehicles are recovered at the instance of these petitioners and there is a prima facie material against these petitioners indulging in committing the offence under section 379 of IPC and the investigation is not yet completed and their presence is required for further investigation. After hearing both the counsels and looking into the fact of the case that petitioner No.1 is a Police Constable and he indulged with accused No.2 and other juvenile offenders in committing such offences and list of cases which have been stated in the remand application is clear that total 27 cases are registered for the similar offence from the beginning of 2021 till date of arrest of these petitioners. When ten vehicles are recovered at the instance of this petitioner and when the matter is under investigation, it is not a fit case to exercise the powers under section 439 of Cr.P.C., that too in favour of a Police Constable, who has to protect the property of the people and he himself indulged in committing the offence of theft of motorcycle along with accused No.2 and juvenile offenders and hence it is not a case for exercising the discretion. According to aforesaid, court rejected the bail petition . Click here to read the judgement

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JANUARY 2022 THE HON BLE MR. JUSTICE H.P. SANDESH CRIMINAL PETITION NO.485 2022 BETWEEN: 1. HONNAPPA DURGAPPA MALAGI @ RAVI 2. RAMESH S O DURGAPPA MALAGI AGED ABOUT 26 YEARS R AT NO.256 9TH CROSS NARASIPURA LAYOUT VIDYARANYA PURA BENGALURU 560097. NATIVE OF HARIJANA KERI KAKOLU RANEBENNUR TALUK HAVERI DISTRICT 581115. S O TEJARAM AGED ABOUT 25 YEARS R AT NO.III FLOOR BEHIND RAMA MANDIRA 4TH MAIN CHICKPET BENGALURU 560053. NATIVE OF ATTUPADU VILLAGE SOJAR TALUK PALI DISTRICT RAJASTHAN 306401. ALSO AT MUTHON KA BASS ALPARA ALBARA PALI RAJASTHAN 306401. BY SRI NARAYANASWAMY K.N. ADVOCATE) ...PETITIONERS THE STATE OF KARNATAKA MAGADI ROAD POLICE STATION REP BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA HIGH COURT BUILDINGS BENGALURU 560001. …RESPONDENT BY SRI VINAYAKA V.S. HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF CR.P.C PRAYING TO ENLARGE THE PETITIONERS ON BAIL IN CR.NO.207 2021 OF MAGADI ROAD P.S. BANGALORE FOR THE OFFENCE PUNISHABLE UNDER SECTION 379 OF IPC ON THE FILE OF THE III ACMM BANGALORE. THIS CRIMINAL PETITION COMING ON FOR ORDERS THROUGH VIDEO CONFERENCE THIS DAY THE COURT MADE THE FOLLOWING: O R D E R This petition is filed under Section 439 of Cr.P.C. seeking regular bail of the petitioners in Crime No.207 2021 of Magadi Road Police Station Bengaluru for the offence punishable under Section 379 of IPC. 2. Heard the learned counsel for the petitioners and the learned High Court Government Pleader appearing for the respondent State. 3. The factual matrix of the case is that these two petitioners along with juvenile offenders were indulged in committing the offence of theft of vehicles and when the juvenile offenders were apprehended they revealed the name of these petitioners and hence case has been registered against them and in total 27 cases are booked against the petitioners as well as the juvenile offenders in different crimes in 2021 only. The learned counsel for the petitioners would submit that only based on the juvenile offenders’ statement these petitioners have been arraigned as accused and no recovery is made at the instance of the petitioners. The juvenile offenders gave the information about where they have kept the vehicles and the alleged recovery is made at the instance of the petitioners and these petitioners have not indulged in such offence and hence they may be enlarged on bail. Per contra the learned High Court Government Pleader appearing for the respondent State would submit that these petitioners have committed 27 crimes in total and all the offences are punishable under Section 379 of IPC and recoveries are also made at the instance of the petitioners. In total three recoveries are made at the first instance one vehicle was recovered at the second instance three vehicles are recovered at the third instance three vehicles are recovered and at the fourth instance three vehicles are recovered at the instance of these petitioners and there is a prima facie material against these petitioners indulging in committing the offence under Section 379 of IPC and the investigation is not yet completed and their presence is required for further investigation. Having heard the respective learned counsel petitioner No.1 is a Police Constable and he indulged with accused No.2 and other juvenile offenders in committing such offences and list of cases which have been stated in the remand application is clear that total 27 cases are registered for the similar offence from the beginning of 2021 till date of arrest of these petitioners. When ten vehicles are recovered at the instance of this petitioner and when the matter is under investigation it is not a fit case to exercise the powers under Section 439 of Cr.P.C. that too in favour of a Police Constable who has to protect the property of the people and he himself indulged in committing the offence of theft of motorcycle along with accused No.2 and juvenile offenders and hence it is not a case for exercising the discretion. In view of the discussions made above I pass the The petition is rejected. However liberty is given to the petitioners to approach the Court after filing of the charge sheet. Sd

A miner is only required to pay royalty on the quantity he removed even if the MoU is silent on the matter: High Court of Uttarakhand

The state cannot make a miner pay royalty on quantity of minerals that he did not remove from the mine, irrespective of whether it is explicitly mentioned in the memorandum of understanding or not. This was held in the judgement passed by a two member bench of the High Court of Uttarakhand consisting of Justice Raghvendra Singh Chauhan and Justice Alok Kumar Verma in the case of M/s Bhawani Stone Crusher v State of Uttarakhand & others [Special Appeal No. 225 of 2021] on 26th July 2021. The appellant, M/s Jai Bhawani Stone Crusher challenged the legality of an order passed by a single judge which directed the appellant to submit a representation before respondent No.1. in turn respondent No.1 was directed to decide the representation within ten weeks from the date of receipt of the representation. The counsel appearing for the appellant submitted that the appellant also prayed that writs be filed against the respondents as the appellant was being asked to pay royalty on the quantity of minerals which he had never even lifted or transported from the mines. The single judge expressed his opinion that since there was no stipulation in the memorandum of understanding that the appellant would be liable to pay royalty only on the actual quantity of the river bed material extracted; therefore the demand made by the respondents was reasonable. The two member bench of the High Court of Uttarakhand first clarified that as sufficient cause had been shown by the appellant for the delay in preferring the present Special Appeal, the delay has been condoned by the Court. The respondents argued that since the Memorandum of Understanding signed with the appellant did not explicitly mention that they were only authorised to charge royalty for the value of the minerals mined by the appellant, the respondents believed they were entitled to levy more royalty charges on the appellant. Rule 21 of the Uttarakhand Minor Minerals (Concession) Rules 2001 stipulated that royalty was payable in respect of any mineral removed by the miner and for this reason, the appellant submitted that he should not have to pay royalty for minerals he did not mine.

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

No Court can grant any extension of limitation against the provisions of the act: High Court of Chhattisgarh

Any extension cannot be granted by the court beyond the time period mentioned as a limitation in the enactment. This is to ensure that the cases do not get piled on and an justice is delivered efficiently. This was decreed by the Hon’ble Justice Shri Rajendra Chandra Singh Samant in the case of Prakash Corporates Vs. Dee Vee Projects Limited [W.P.(227) No.312 of 2021] on the 09th of July 2021 before the Hon’ble High Court of Chhattisgarh at Bilaspur. The brief facts of the case are, the respondent has filed a Civil Suit before the criminal court. The petitioner/defendant received the summons on 6th January, 2021. The time for filing written statement was extended for 120 days which got expired on 06.05.2021. The case was listed on 15.04.2021 and on that date the case was fixed for arguments on the application under Section 10 read with Section 151 of C.P.C. and application under Order 38 Rule 5 read with Section 151 of C.P.C., on 22.06.2021. No last opportunity was given by the Commercial Court to the petitioner for filing of written statement and on 06.05.2021, the Court was closed due to the imposition of lock-down in corona pandemic control measure. In the impugned order, the learned Commercial Court has held that according to the proviso under Order VIII Rule 1 of C.P.C. incorporated in Commercial Courts Act, after the expiry of 120 days from the date of service of summons, the right of defendants to file written statement stands forfeited and therefore, the opportunity of filing written statement by the petitioner was closed. This petition under Article 227 of Constitution of India has been brought being aggrieved by the order dated 22.06.2021 passed in Civil Suit by which the opportunity of the petitioner/defendants for filing written statement was closed. The counsel for the petitioner submitted that the trial court in its order was erroneous since, the Hon’ble Supreme Court has in Suo-moto Writ (Civil) No.-03 of 2020 has ordered that while computing the period of limitation prescribed in general law and special Acts, the period between 15.03.2020 to 14.03.2021 shall stand excluded. On 27.04.2021, the suspension of limitation under general or special laws was further extended and the matter was listed for 19.07.2021. Hence, on the basis of this order of the Supreme Court, the limitation that has been counted without taking into consideration of the period of lock-down.  The counsel for the respondent submitted that, the petitioner has still not filed any written statement. He also submitted that, the order in Sou-moto is only for the purpose of extension of period of limitation and not to condone the delay. The time provided for filing of reply is prescribed period and therefore, this has to be not a limitation, which is not covered under the order of Suo-moto Writ (Civil) No.03 of 2020. It is further submitted that the petitioner was granted sufficient time for filing of written statement and on the date fixed, the Courts was not closed. The grounds taken for non-submission of reply are baseless. The learned judge heard the contentions of both the parties. The court relied on the judgement in Sagufa Ahmed & Ors. Vs. Upper Assam Polywood Products Private Limited & Ors. (2021) 2 SCC 317, Wherein, the court held, “But we do not think that the appellants can take refuge under the above order in Cognizance for Extension of Limitation, In re. What was extended by the above order of this Court was only “the period of limitation” and not the period upto which delay can be condoned in exercise of discretion conferred by the statute. The above order passed by this Court was intended to benefit vigilant litigants who were prevented due to the pandemic and the lockdown, from initiating proceedings within the period of limitation prescribed by general or special law. It is needless to point out that the law of limitation finds its root in two latin maxims, one of which is vigilantibus et Non dormientibus Jura subveniunt which means that the law will assist only those who are vigilant about their rights and not those who sleep over them.”

1AFRHIGH COURT OF CHHATTISGARH BILASPUR W.P.(227) No. 3121Prakash Corporates T 16 Raheja Tower Fafadih Raipur 492001Chhattisgarh Through Its Partner Namely Shri Shailesh Kumar GoyalS o Shri Bhimsen Goyal Aged About 37 Years T 16 Raheja Tower Fafadih Raipur District Raipur ChhattisgarhPetitionerVersus Dee Vee Projects Limited Through Its Director 1st Floor VikasComplex Power House Road Korba 495678 Chhattisgarh RespondentFor Petitioner Mr. Manoj Paranjpe Advocate.For respondent caveator Mr. Amrito Das and Mr. Rishabh Garg Advocate.Hon ble Shri Justice Rajendra Chandra Singh SamantOrder on Board09 07 20211.This petition under Article 227 of Constitution of India has been broughtbeing aggrieved by the order dated 22.06.2021 passed in Civil SuitNo.01 B 2021 by the Criminal Court District Raipur C.G. by which theopportunity of the petitioner defendants for filing written statement wasclosed. 2.It is submitted by the learned counsel for the petitioner that therespondent has filed a Civil Suit in No.01 B 2021 before the CriminalCourt Raipur C.G.. The petitioner defendant received the summons on 26th January 2021. The time for filing written statement was extended for120 days which got expired on 06.05.2021. The case was listed on15.04.2021 and on that date the case was fixed for arguments on theapplication under Section 10 read with Section 151 of C.P.C. andapplication under Order 38 Rule 5 read with Section 151 of C.P.C. on22.06.2021. No last opportunity was given by the Commercial Court tothe petitioner for filing of written statement and on 06.05.2021 the Courtwas closed due to the imposition of lock down in corona pandemiccontrol measure. 3.In the impugned order the learned Commercial Court has held thataccording to the proviso under Order VIII Rule 1 of C.P.C. incorporatedin Commercial Courts Act after the expiry of 120 days from the date ofservice of summons the right of defendants to file written statementstands forfeited and therefore the opportunity of filing written statementby the petitioner was closed. It is submitted by the learned counsel forpetitioner that on 22.06.2021 the petitioner filed application seekingtime to file written statement on the medical ground as the learnedcounsel for the petitioner was in quarantine. The learned trial Court hasnot given any consideration on this prayer of the petitioner. The Hon bleSupreme Court has in Suo moto WritNo. 020 has orderedthat while computing the period of limitation prescribed in general lawand special Acts the period between 15.03.2020 to 14.03.2021 shallstand excluded. On 27.04.2021 the suspension of limitation undergeneral or special laws was further extended and the matter was listedfor 19.07.2021. Hence on the basis of this order of the Supreme Court the limitation that has been counted without taking into consideration ofthe period of lock down is erroneous. 4.Reliance has been placed on the judgment of Supreme Court in thecase of S.S. Group Pvt. Ltd. Vs. Aaditiya J. Garg and Anr. reported in 32020 SCC Online SC 1050 and the judgment of Supreme Court inKailash Vs. Nanhku & Ors. reported in4 SCC 480. It issubmitted that in the case of S.C.G. ContractsPrivate LimitedVs. K.S. Chamankar Infrastructure Private Limited & Ors. reported in(2019) 12 SCC 210. The Supreme Court granted liberty to the defendantand ordered that the written statement that was already produced to betaken on record. Therefore it is prayed that this petition may beadmitted and petitioner may be granted opportunity to file writtenstatement in the Civil Suit before the Commercial Court. 5.Shri Amrito Das learned counsel for the respondent has appeared oncaveat and he opposes the petition and the submissions made in thatrespect and submits that the present petition under Article 227Constitution of India is not maintainable. Section 13(1)(A) of CommercialCourts Act Specifically provides that “Any person aggrieved by thejudgment or order of a Commercial Court at the level of District Judgeexercising original civil jurisdiction or as the case may be CommercialDivision of a High Court may appeal to the Commercial AppellateDivision of that High Court.” Therefore the impugned order isappealable. Hence in such a case the appeal shall be maintainableagainst the impugned order under Order 43 of C.P.C. and the sameshall be heard by a Commercial Appellate Division Bench of the HighCourt. Therefore there is no provision for hearing of such cases by aSingle Judge. The amended provision of the C.P.C. filed under Section16 of the Act 2015 does not leave any scope of condonation of delay. Itis submitted that in the case of S.C.G. ContractsPrivate Limited(Supra) the Supreme Court is very clear on this point that theCommercial Court has no power to extend the time given beyond theperiod of 120 days. The opportunity that was given to the defendant inthat case was a singular incident and does not lay down any precedent. 4Further the defendant in that case had already filed the writtenstatement in the present case the petitioner has still not filed any writtenstatement. In the case of Sagufa Ahmed & Ors. Vs. Upper AssamPolywood Products Private Limited & Ors. reported in2 SCC317 the Supreme Court has considered and it has been observed thatthe order in Sou moto is only for the purpose of extension of period oflimitation and not to condone the delay. The time provided for filing ofreply is prescribed period and therefore this has to be not a limitation which is not covered under the order of Suo moto WritNo.03 of2020. 6.It is further submitted that the petitioner was granted sufficient time forfiling of written statement and on the date fixed the Courts was notclosed. The grounds taken for non submission of reply are baseless. Onthe last date on which the case was fixed for hearing i.e. 22.06.2021 again the written statement was not filed and the limitation for filingwritten statement had already expired on 06.05.2021. It is submitted thatif such delay in filing of written statement condoned then the object ofthe Act 2015 will be frustrated. Hence the impugned order has beenrightly passed. Therefore it prayed that this petition may be dismissedat motion stage. 7.In reply it is submitted by the learned counsel for the petitioner that theproviso of Section 13(1)(A) provides that an appeal shall lie from suchorders passed by a Commercial Division of a Commercial Court that arespecifically enumerated under Order 43 of C.P.C. as amended by thisAct and Section 37 of Arbitration and Conciliation Act. There is a clearorder of the Supreme Court in Sou moto case extending the period oflimitation. 8.Reliance has been placed on the judgment of the Supreme Court in thecase of New India Assurance Company Limited Vs. Hilli 5Multipurpose Cold Storage Private Limited reported in5 SCC757. It is again submitted that the order in Suo moto Writ Petitionregarding extension of limitation is applicable in this case. Therefore itis prayed that this petition may be allowed and relief be granted to thepetitioner.9.Heard learned counsel for the parties and perused the documentspresent on record.10.Considered on the point of the maintainability. Section 13(1)(A) ofCommercial Courts Act 2015Private Limitedis very clearthat the right to file written statement stands forfeited after the timeprescribed for filing of written statement and the time extendedaccording to the provisions contained in the enactment. Although thecase was under the provisions of the Consumer Protection Act and thetime for filing of written statement had expired after the completion ofprescribed period and the period that was extended according to theprovision in the Act the Supreme Court then held in paragraph 10: “(10) Several High Court judgments on the amended OrderVIII Rule 1 have now held that given the consequence ofnon filing of written statement the amended provisions of theCPC will have to be held to be mandatory. See Oku TechNo. 3390 of2015 as followed by several other judgments including ajudgment of the Delhi High Court in Maja Cosmetics V. OasisCommercialLtd.”13.The Supreme Court ordered that the written statement filed by theappellant be taken on record. The judgment of Supreme Court in NewIndia Insurance Company Ltd.had been referred to in thejudgment asked in S.S. Group Pvt. Ltd.it is held in paragraph 17: “But we do not think that the appellants can take refugeunder the above order in Cognizance for Extension ofLimitation In re. What was extended by the above order ofthis Court was only “the period of limitation” and not the 7period upto which delay can be condoned in exercise ofdiscretion conferred by the statute. The above order passedby this Court was intended to benefit vigilant litigants whowere prevented due to the pandemic and the lockdown from initiating proceedings within the period of limitationprescribed by general or special law. It is needless to pointout that the law of limitation finds its root in two latinmaxims one of which is vigilantibus et Non dormientibusJura subveniunt which means that the law will assist onlythose who are vigilant about their rights and not those whosleep over them.” Taking into consideration the view settled by theSupreme Court and the applicability of the order of Supreme Court inSuo moto WritNo.020 the glaring fact present in this caseis this that the petitioners have till date not filed any written statement the prescribed time for filing written statement and the time which canbe extended by the Court both have expired. The case was fixed forhearing on 22.06.2021 even on that date the petitioner was not readyand prepared to file the written statement therefore it appears to be acase in which the petitioner is making a prayer for extension oflimitation. No Court can grant any extension of limitation against theprovisions of the enactment under which the case is being consideredand heard. Further it is not a case of condonation of delay as thewritten statement is still not filed. Hence I am of this view that thelearned Commercial Court has not committed any error in rejecting theprayer made by the petitioner for granting time to file written statement.Accordingly no substance is found to be present in this petition hence this petition is dismissed at motion stage.15.Accordingly this petition is disposed off. Sd (Rajendra Chandra Singh Samant)Monika Judge

On purchase of shares from any other co-sharers make person co-sharer over the same property: High Court of Shimla

Objectors have purchased shares in the suit land from other co-sharers and, therefore, have themselves become co-shares over the suit land. This honorable judgement was passed by High Court of Shimla in the case of Sh. Parveen Kumar & ors. Versus Smt. Fikki & ors. [CMPMO No. 342 of 2014] by Ms. Justice Jyotsna Rewal Dua, Judge. The objections preferred by the judgment debtors to the execution petition filed by the decree holders had been partly allowed by the learned Executing Court vide order, which is impugned herein by the decree holders. In terms of this order, instead of actual possession, only symbolic possession of the suit land has been ordered to be delivered to the decree holders. A civil suit was instituted, the plaintiffs asserted themselves to be owners along with other co-sharers of the suit land comprised in Khata No. 39 min, Khatauni No. 83, Khasra No. 77, measuring 0-00-43 HM, situated in village Tutwan, Sub Tehsil Fatehpur, District Kangra, on the basis of jamabandi for the year 1989-90. The allegations in the plaint were that the defendants were neither the owners nor the tenants over the suit land. Yet they had forcibly taken over the possession of the suit land in an illegal and unlawful manner. Therefore, decree for vacant possession of the suit land was prayed for. decreed the suit of the plaintiffs against the defendants for vacant possession of suit land. The legal heirs of original plaintiff filed an execution petition under Order 21 Rule 11 of Code of Civil Procedure for executing the aforesaid decree. The prayer in the execution petition was for putting the plaintiffs/decree holders into actual possession of the suit land after demarcation of boundaries. After purchase of shares in the suit land, the judgment debtors had become joint owners in possession with the decree holders. The share of the judgment debtors/joint owners is not specified on a particular portion of land in question. Therefore, till the time the land is partitioned, every inch of it has to be construed as joint between the parties-joint owners.

Hig h C o urt of H.P on 22 04 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. CMPMO No. 3414Reserved on: 19.4.2021 Decided on: 22.04.2021Sh. Parveen Kumar & ors........Petitioners.VersusSmt. Fikki & ors. .....Respondents.CoramMs. Justice Jyotsna Rewal Dua Judge. Whether approved for reporting 1 For the petitioners: Mr. Anuj Gupta Advocate. For the respondents:Respondents No. 1 to 5 exparte. Name of respondent No. 6 deleted. Jyotsna Rewal Dua Judge The objections preferred by the judgment debtors tothe execution petition filed by the decree holders have beenpartly allowed by the learned Executing Court vide order dated29.8.2014 which is impugned herein by the decree holders. Interms of this order instead of actual possession only symbolicpossession of the suit land has been ordered to be delivered tothe decree holders. 2(i)A civil suit was instituted by S Shri Rania and ChuniLal both sons of Shri Litru on 29.12.1995. The plaintiffs asserted1 Whether the reporters of the local papers may be allowed to see theJudgment Hig h C o urt of H.P on 22 04 HCHP 2themselves to be owners alongwith other co sharers of the suitland comprised in Khata No. 39 min Khatauni No. 83 Khasra No.77 measuring 0 00 43 HM situated in village Tutwan Sub TehsilFatehpur District Kangra on the basis of jamabandi for the year1989 90. The allegations in the plaint were that the defendantswere neither the owners nor the tenants over the suit land. Yetthey had forcibly taken over the possession of the suit land inJanuary 1988 an illegal and unlawful manner. Therefore decreefor vacant possession of the suit land was prayed for. Learnedtrial Court on 2.11.1998 decreed the suit of the plaintiffs againstthe defendants for vacant possession of suit land. The operativepart of the judgment reads as under:“ .suit of the plaintiffs is hereby decreedagainst the defendants for vacant possession of theland comprised in Khata No. 39 min Khatauni No. 83 Khasra No. 77 measuring 0 00 53 HM situated invillage Tutwan Sub Tehsil Fatehpur Distt. Kangra H.P. asper jamabandi for the year 1989 90.”2(ii)On 11.8.2006 the legal heirs of original plaintiff No. 1and Shri Chuni Lal original plaintiff No. 2filedan execution petition under Order 21 Rule 11 of Code of CivilProcedure for executing the aforesaid decree dated 2.11.1998.The execution was preferred inter alia against the legal heirs ofDulo Chunku as well as against legal heirs of Dhannuinto actualpossession of the suit land after demarcation of boundaries. Hig h C o urt of H.P on 22 04 HCHP 32(iii)On 12.1.2007 objections on behalf of judgmentdebtors were preferred pleading therein that the decree hadbecome inexecutable for the reasons: a)The legal heirs of Duloto1(d)] had purchased 1 16th share in the suit land on 27.5.1999.b)Judgment debtor Bhola Ram son of Shri Dulo had alsopurchased a separate share in the suit land. c)After purchase of shares in the suit land thejudgment debtors had become joint owners in possession withthe decree holders. The share of the judgment debtors jointowners is not specified on a particular portion of land in question.Therefore till the time the land is partitioned every inch of it hasto be construed as joint between the parties joint owners.d)The decree holdersin suchcircumstances are not entitled for actual possession of the suitland.The reply to the objections was filed by the decreeholders present petitioners denying the purchase of suit land bythe judgment debtors. It was also submitted that even after thepurchase of a portion of the suit land by the judgment debtors the decree could still be executed. 2(iv)Issues were framed in the objection petition on28.12.2007. The parties led evidence in support of theirrespective contentions. After considering the pleadings and the Hig h C o urt of H.P on 22 04 HCHP 4evidence adduced by the parties the learned executing courtheld that the Dulo had purchased the suit land on 27.5.1999 tothe extent of 1 16th share and Bhola Ram had also purchasedseparate share in the suit land. Therefore the judgment debtorshad become co sharers of the suit land. On becoming co sharersof the suit land the judgment debtors cannot be ousted fromtheir possession of the suit land and for this reason actualpossession of the suit land was not ordered to be delivered to thedecree holders. Instead of warrant of actual possession warrantof symbolic possession was ordered to be issued in favour of thedecree holders.Aggrieved against this order passed by the learnedexecuting court on 29.8.2014 the decree holders have preferredinstant petition under Article 227 of the Constitution of India.3.Heard learned counsel for the petitioners and gonethrough the record.4.Learned counsel for the petitioners decree holderssubmitted that learned Executing Court erred in not deliveringactual possession of the suit land in favour of the decree holders.Learned counsel contended that there was no document onrecord to show that the judgment debtors had purchased anyportion of land in the suit land. He further submitted that in anycase even if it is to be presumed that the part of suit land wassold to the judgment debtors then also it was sold much after Hig h C o urt of H.P on 22 04 HCHP 5passing of the judgment and decree sought to be executed. Theintention of the judgment debtors was only to deprive the decreeholders from getting the possession of the suit land. In suchcircumstances the objections filed by the judgment debtors werenot legally maintainable and were liable to be rejected as theexecuting court could not have gone behind the decree.4.On going through the record impugned order cannotbe said to be suffering from any infirmity. Following aspectsbecome material in this regard: 4(i)The objections preferred on behalf of the judgmentdebtors were in respect to the inexecutability of the decree dated2.11.1998 vide which the plaintiffs were held to be the owners ofthe suit land alongwith other co sharers. It was held in thejudgment and decree that the defendants without any rights orauthority had forcibly taken the possession of the suit land fromthe plaintiffs. Accordingly the suit filed by the plaintiffs wasdecreed against the defendants for vacant possession of the suitland comprised Khata in No. 39 min Khatauni No. 83 Khasra No.77 measuring 0 00 43HM situated in village Tutwan Sub TehsilFatehpur District Kangra as per jamabandi for the year 1989 90.4(ii)Petitioners preferred execution petition inter aliaimpleading legal heirs of Dulo as judgment debtors. In responseto the execution petition filed in the year 2006 the judgmentdebtors by submitting that they had purchased shares in the suit Hig h C o urt of H.P on 22 04 HCHP 6land from other cosharers objected to the executability of thedecree. During evidence they placed on record jamabandi forthe year 1999 2000and jamabandi for the year 2004 2005wherein it was recorded that Duloto 1(d) had purchased 30 out of 480shares in the suit land and the judgment debtor Bhola Ram hadalso purchased 45 out of 480 shares in the suit land. Sale deedsthough have not been placed on record however the decreeholders have not denied the revenue documents placed onrecord by the judgment debtors. In fact no evidence in thisregard whatsoever has been led by the plaintiffs decree holdersto rebut the revenue record reflecting purchase of shares in thesuit land by the objectors judgment debtors. Thus from theperusal of the evidence adduced by the parties in the objectionpetition it is evident that subsequent to the passing of thedecree the objectors have purchased shares in the suit landfrom other cosharers and therefore have themselves becomeco shares over the suit land.4(iii)There is no dispute qua the settled legal position thatthe executing court cannot go behind the decree and has toexecute it as its stands. However in terms of Section 47 of Codeof Civil Procedure the executing court is required to look into thequestions relating to the execution discharge or satisfaction ofthe decree. Such questions are to be adjudicated by the Hig h C o urt of H.P on 22 04 HCHP 7executing court and not by a separate suit. Section 47 reads asunder:“47. Questions to be determined by the Court executingdecree.—(1) All questions arising between the parties to thesuit in which the decree was passed or their representatives and relating to the execution discharge or satisfaction of thedecree shall be determined by the Court executing thedecree and not by a separate suit.(3) Where a question arises as to whether any person is or isnot the representative of a party such question shall for thepurposes of this section be determined by the Court.[Explanation 1.—For the purposes of this section a plaintiffwhose suit has been dismissed and a defendant againstwhom a suit has been dismissed are parties to the suit.Explanation II—(a) For the purposes of this section apurchaser of property at a sale in execution of a decree shallbe deemed to be a party to the suit in which the decree ispassed and(b) all questions relating to the delivery of possession of suchproperty to such purchaser or his representative shall bedeemed to be questions relating to the execution dischargeor satisfaction of the decree within the meaning of thissection.]”4(iv)(2010) 14 SCC 384 title Arun Lal and othersversus Union of India and others was a case where decree forrecovery of possession by ejectment of defendants from abungalow was passed with a direction to remove barracksconstructed on part of compound. Union of India in terms of aresumption notice took over possession of land appurtenant tothe bungalow. The notice was not challenged. In executionproceedings respondents filed objections under Section 47 CPCthat decree was rendered inexecutable to the extent of land Hig h C o urt of H.P on 22 04 HCHP 8resumed under the resumption notice. The apex court upheldHigh Court’s verdict that possession of said land could not betaken away from Union of India for delivering to the decree holders since after resumption of property and takingpossession Union of India in exercise of its rights as paramounttitle holder was no longer holding the same as a tenant so as tobe answerable to petitioners as its landlords. Relevant para fromthe judgment is extracted hereinafter: “15. It is common ground that the land appurtenantto the bungalow had been utilised by the Union of India forconstruction of barracks. The entire extent of 2.792 acres ofof land including the one under the barracks could therefore be taken over pursuant to the resumption order which wasnever assailed and had thereby attained finality. Such beingthe position the High Court was right in holding thatpossession of the above extent of land could not be takenaway from the Union of India for delivery to the decree holders. That is because after the resumption of the propertyand the taking over of the possession by the Union of India inexercise of its rights as the paramount title holder it was nolonger holding the same as a tenant so as to be answerable tothe petitioners as its landlords. The Union of India was on thecontrary holding the resumed property in its own right and ina capacity that was different from the one in which it hadsuffered the decree for eviction. This was a significant changein the circumstances in which the decree was passedrendering it inexecutable.”Jagdish Dutt and another v. Dharam Pal andothers reported in AIR 1999 Supreme Court 1694 was a casewhere a decree for actual possession of immovable property waspassed. One of the coparceners assigned transferred his interestin the decree in favour of the judgment debtors. It was held that Hig h C o urt of H.P on 22 04 HCHP 9the decree in such situation would get extinguished to the extentof the interest so transferred and further that execution petitionwould lie only to the extent of remaining part of the decree. Itwas also observed that where the interest of coparceners isundefined indeterminate and cannot be specifically stated to bein respect of any one portion of the property then a decree foractual possession of immovable property cannot be given effectto before ascertaining the rights of the parties by an appropriatedecree in a partition suit. The relevant para of the judgmentreads as under:“7.When a decree is passed in favour of a joint familythe same has to be treated as a decree in favour of ail the membersof the joint family in which event it becomes a joint decree. Where ajoint decree for actual possession of immovable property is passedand one of the coparceners assigns or transfers his interest in thesubject matter of the decree in favour of the judgment debtor thedecree gets extinguished to the extent of the interest so assigned andexecution could lie only to the extent of remaining part of the decree.In case where the interest of the coparceners is undefined indeterminate and cannot be specifically stated to be in respect ofany one portion of the property a decree cannot be given effect tobefore ascertaining the rights of the parties by an appropriate decreein a partition suit. It is no doubt true that the purchaser of theundivided interest of a coparcener in an immovable property cannotclaim to be in joint possession of that property with all the othercoparceners. However in case where he is already in possession ofthe property unless the rights are appropriately ascertained hecannot be deprived of the possession thereof for a joint decree holdercan seek for execution of a decree in the whole and not in part of theproperty. A joint decree can be executed as a whole since it is notdivisible and it can be executed in part only where the share of thedecree holders are defined or those shares can be predicted or theshare is not in dispute. Otherwise the executing court cannot find outthe shares of the decree holders and dispute between joint decreeholders is foreign to the provisions of Section 47 CPC. Order XXI Rule15 CPC enables a joint decree holder to execute a decree in itsentirety but if whole of the decree cannot be executed this provisioncannot be of any avail. In that event also the decree holder will have Hig h C o urt of H.P on 22 04 HCHP 10to work out his rights in an appropriate suit for partition and obtainnecessary relief thereto. Various decisions cited by either side towhich we have referred to do not detract us from the principle statedby us as aforesaid. Therefore a detailed reference to them is notrequired.” The ratio of aforesaid judgments squarely applies tothe facts of the case. In the instant case the judgmentdebtors objectors have proved on record that they had becomeco sharers of the suit land subsequent to passing of the decreesought to be executed. The suit land is now jointly owned bythem alongwith various cosharers. In such situation theirpossession over the suit land cannot be treated as illegal and therefore they cannot be ousted from such possession. Thejudgment debtors objectors have purchased shares in the suitland from the other co sharers. Their possession of the suit landis now in a capacity different from the one in which they hadsuffered the decree for possession. In such circumstances learned trial court was justified in not issuing the warrant ofactual possession in favour of decree holders petitioners. For theforegoing reasons the petition lacks merit and is accordinglydismissed. Jyotsna Rewal Dua Judge 22nd April 2021

Though unauthorized illegal construction is becoming rampant it cannot be countenanced : Delhi High Court

A party that does not approach the Court with clean hands and files a petition with ulterior motives will not be permitted to invoke the extra ordinary Writ jurisdiction of the court. This was held in the judgment passed by a single judge bench comprising Hon’ble Mr Justice Sanjeev Sachdeva, in the matter of Pawan Kumar Saraswat V. North Delhi Municipal Corporation & Ors. [W.P.(C) 6676/ 2021 & CM APPLs. 21018/2021, 23797 – 798/2021], dealt with an issue where the petitioner filed a petition seeking a direction against the respondent-Corporation to take action against unauthorized illegal construction of commercial nature, deviation and encroachment of property. He petitioner also further seeks cancellation of sanction plan. As per the petitioner illegal unauthorized construction activity is being raised in the subject property contrary to the sanctioned building plan and there is a deviation and encroachment. Counsel appearing for the respondent, on advance notice, submitted that petitioner has made several concealments and misrepresentations. He submitted that petitioner has filed a suit for specific performance based on forged and fabricated document against respondent no. 3 and there was no interim order granted. He also submitted that petitioner had even entered into a Memo of Understanding with the subsequent purchasers to give up his alleged rights for a sum of Rs. 1 crore 98 lakhs out of which Rs. 1 crore 68 lakhs have been already received by the petitioner. It was also stated that the petition is motivated and petitioner has filed this petition with ulterior motive and for the purpose of extorting money. He further submits that despite the fact that petitioner is aware of the owners of the property he has purposely not impleaded them in these proceedings. Counsel for the petitioner submitted that petitioner in one of the documents annexed to the petition i.e. a complaint to the Police Commissioner has mentioned about the Suit and the details of the owners. After hearing both the parties The Hon’ble Delhi High Court dismissed the petition and held that the fact that petitioner has specifically mentioned about the names of the owners and the civil litigation in the Police Complaint but has completely kept silent about the same in the petition filed before this court, goes on to show that petitioner has purposely made misrepresentations and concealments in the petition. Click here to view judgement

IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on: 27th September 2021 W.P.(C) 10933 2021 PAWAN KUMAR SARASWAT Petitioner Respondents NORTH DELHI MUNICIPAL CORPORATION & ORS. Advocates who appeared in this case: For the Petitioner : Mr. Pran Nath Dhar alongiwth Mr. Shivesh P. Singh Advocate For the Respondents: Mr. Akhil Mittal Standing Counsel for R 1 & R 2 North DMC Mr. Imran Ahmad Advocate for R 3 Mr. Rishikesh Kumar ASC with Mr.Premsagar Pal for R 4 CORAM: HON’BLE MR JUSTICE SANJEEV SACHDEVA SANJEEV SACHDEVA J. The hearing was conducted through video conferencing. Petitioner seeks a direction against the respondent Corporation to take action against unauthorized illegal construction of commercial nature deviation and encroachment of property bearing municipal No. 2858 from Gali Ghasi Ram and property bearing municipal No. 2877 from Gali Jajam Puria Hauz Qazi Delhi and further seeks cancellation of sanction plan W.P.10933 2021 obtained by Mohd. Kasif son of Mohd. Akil etc. As per the petitioner illegal unauthorized construction activity is being raised in the subject property contrary to the sanctioned building plan and there is a deviation and encroachment. Learned counsel appearing for respondent no. 3 on advance notice has made misrepresentations. He submits that petitioner has filed a suit for specific performance based on forged and fabricated document against respondent no. 3 and there was no interim order granted. He submits that the subject property was sold to Mohd. Kasif and Mohd. Hashim. Learned counsel further submits that petitioner had even entered into a Memo of Understanding with the subsequent purchasers to give up his alleged rights for a sum of Rs. 1 crore 98 lakhs out of which Rs. 1 crore 68 lakhs have been already received by the petitioner. Learned counsel submits that without disclosing all this petitioner filed an application before the trial court seeking a restraint on raising construction but thereafter did not press the application before trial court in the said Suit and the application now stands adjourned to 01.11.2021. Learned counsel submits that clearly the petition is motivated and petitioner has filed this petition with ulterior motive and for the purpose of extorting money. He further submits that despite the fact that petitioner is aware of the owners of the property he has purposely not impleaded them W.P.10933 2021 in these proceedings. Learned counsel for respondent no. 3 has over e mail of the Court Master shared certain documents. The same are taken on record. Learned counsel appearing for respondent Corporation on advance notice submits that the property was inspected and has been booked and appropriate action in accordance with law is being taken. 10. No doubt the Corporation is entitled to take action in case any breach or violation is brought to its notice however what is relevant in the facts and circumstances of the present case is as to whether the petitioner who approaches this Court by making misrepresentations and concealments should be permitted to invoke the jurisdiction of this court under Article 226 of the Constitution of India. Perusal of the petition clearly shows that there is no disclosure made by the petitioner about the pending litigation. Petitioner has also not impleaded the owners i.e. Mohd Kasif and Mohd Hashim as respondents in this petition despite the fact that he has mentioned their names in the prayer paragraph. Learned counsel for the petitioner submits that petitioner in one of the documents annexed to the petition i.e. a complaint to the Police Commissioner has mentioned about the Suit and the details of the owners. The fact that petitioner has specifically mentioned about the names of the owners and the civil litigation in the Police Complaint but has W.P.10933 2021 completely kept silent about the same in the petition filed before this court goes on to show that petitioner has purposely made misrepresentations and concealments in the petition. When petitioner mentioned the details to the Commissioner of Police in a complaint made to him what precluded him from disclosing the same in the petition The answer to the above question is clearly obvious. The intention of the petition was to obtain orders from the Court which petitioner has not been able to obtain in the civil proceedings. Though unauthorized illegal construction which is becoming rampant cannot be countenanced however I am of the view that a party that does not approach the Court with clean hands and files a petition with ulterior motives should not be permitted to invoke the extra ordinary Writ jurisdiction of this court. I am of the view that the petition deserves to be dismissed. 16. Accordingly the petition is dismissed. It would however be open to the Municipal Corporation to take action in accordance with law. 17. Copy of the order be uploaded on the High Court website and be also forwarded to learned counsels through email by the Court Master. SANJEEV SACHDEVA J SEPTEMBER 27 2021 W.P.10933 2021

Mohan Lal & Anr. V/s. Grain Chamber Ltd., Muzaffarnagar & Ors.

A Company can always restart the business with the assets it possessed and prosecute the objects for which it was incorporated The Grain Chamber Ltd., Muzaffarnagar, was a Company registered under the Indian Companies Act, 1913 formed for the purpose of carrying on business of an exchange in grains, cotton, sugar, gur, pulses and other commodities. In the years 1949 and 1950 the Company was carrying on business principally in “futures” in gur. The transactions for sale and purchase of gur were in the units called ‘Bijaks’ of 100 maunds. On March 14, 1949, the Board of Directors of the Company passed a resolution, sanctioning transaction of business in “futures” in gur for Phagun Sudi 15, Samvat 2006 (March 4, 1950) settlement. On August 9, 1949, Seth Mohan Lal and Company purchased one share of the Company and qualified for membership. They commenced dealing with the Company in “futures” in gur. By December 1949 Seth Mohan Lal and Company (appellants) had entered into transactions with the Company for 1136 Bijaks of sale of gur for the Paush Sudi 15, 2006 delivery. The appellants claimed that they had entered into sale transactions in 2137 Bijaks in the benami names of five other members.In January 1950 there were large fluctuations in the prices of gur, and in order to stabilise the prices, the directors of the Company passed a resolution, declaring that the Company will not accept any settlement of transaction in excess of Rs. 17/8/- per maund. The sellers were required to deposit margin money between the prices prevailing on that date and the maximum rate fixed by the Company.The appellants deposited in respect of their transactions Rs. 5,26,996/14/- as margin money. They claimed also to have deposited amounts totaling Rs. 7 lakhs odd in respect of their benami transactions. Government of India issued a notification on February 15, 1950, amending the Sugar (Futures & Options) Prohibition order, 1949, and made it applicable to “future” and options in gur. By that Order entry into transactions in “futures” after the appointed day was prohibited. On the same day the Board of Directors of the Company resolved that the rates of gur which prevailed at the close of the market on February 14, 1950, viz., Rs. 17/6/- per maund be fixed for settlement of the contracts of Phagun delivery. Procedural history- On February 22, 1950, the appellants and their partner Mohan Lal filed a petition in the High Court of Judicature at Allahabad for an order winding up the Company. On February 23, 1951, another petition for the same.It was held that the Company was not unable to pay its debts and that it was not just and equitable to wind up the Company on the grounds set out in the petition and therefore the petition was dismissed. This was confirmed by the High Court of Allahabad in its appellate jurisdiction. ISSUE BEFORE THE COURT: Whether the decision by the High Court of Allahabad was correct in law? RATIO OF THE COURT The Court held that there is no evidence that the directors were aware of the disqualification which would be incurred by entering into contracts of sale or purchase or supply of goods with the Company without the express sanction of the directors. By the subsequent discovery that they had incurred disqualification, because they had entered into contracts with the Company for sale or purchase or supply of goods, the resolution passed by them is not rendered invalid. It is unnecessary to decide whether Section 86 of the Indian Companies Act 1913 also grants protection to acts done by directors who are subsequently discovered to be disqualified.The court further held that there was no repudiation of the contracts by the Company. The contracts, if they were to be settled by payment of differences, could be settled on the due date at the rates fixed: it was however open to the appellants to deliver goods under the contracts if they desired to do so.The outstanding contracts were not at all affected by the Government Order. Fresh contracts were prohibited, but settlement of the outstanding contracts by payment of differences was not prohibited, nor was delivery of gur in pursuance of the contract and acceptance thereof at the due date by the Company prohibited. The difficulty arising by the Government orders in transporting the goods needed to meet the contract was not an impossibility contemplated by s. 56 of the contract Act leading to frustration of the contracts.The Company was carrying on extensive business in “futures” in gur, but the Company was formed not with the object of carrying on business in “futures” in gur alone, but in several other commodities as well. The Company had immovable property and liquid assets of the total value of Rs. 2,54,000. There is no evidence that the Company was unable to pay its debts.The object for which the Company was incorporated has not substantially failed, and it cannot be said that the Company could not carry on its business except at a loss, nor that its assets were insufficient to meet its liabilities. There were no creditors to whom debts were payable by the Company.The business organisation of the Company cannot be said to have been destroyed, merely because the brokers who were acting as mediators in carrying out the business between the members had been discharged and their accounts settled. The services of the brokers could again be secured. The Company could always restart the business with the assets it possessed and prosecute the objects for which it was incorporated. The court cannot on that ground direct that the Company be wound up and therefore the Court agreed with the High Court to not wind up the Company.The court observed that in the present case the object for which the Company was incorporated has not substantially failed, and it cannot be said that the Company could not carry on its ’business except at a loss, nor that its assets were insufficient to meet its liabilities.It is true that because of this long drawn out litigation, the Company’s business has come to a stand-still. But the court observed that they cannot on that ground direct that the Company be wound up. Primarily, the circumstances existing as at the date of the petition must be taken into consideration for determining whether a case is made out for holding that it is just and equitable that the Company should be wound up, and we agree with the High Court that no such case is made out. DECISION HELD BY COURT: Therefore, the said appeal was dismissed by the court.

GRAIN CHAMBER LTD. MUZAFFARNAGAR & ORS MOHAN LAL & ANR Vs DATE OF JUDGMENT SHAH J.C SHAH J.C SIKRI S.M 1968 AIR 772 1968 SCR 252 CITATOR INFO RF 1976 SC 565 Prohibition Order 1949 Notification making order applicable to gur Company settling outstanding contracts in "futures" in gur at rate prevailing on the day previous to notification Validity Frustration Contract Act s. 56 Indian Companies Act 1913 ss. 18 86F 861 91B Regulation 94 Table A Directors doing transactions with company subsequent discovery of disqualification Applicability of Regulation Winding Substratum when can be said to have The respondent company registered under the Indian Companies Act 1913 was formed for the purpose of carrying on the business of an exchange in various commodities including gur and started its business in 1931. The Articles of Association of the Company provided that no person could remain a member of the company who was found not to be doing any transaction or business through the company. The Board of Directors of the company on March 14 1949 passed a resolution sanctioning transactions in ’futures’ in gut All the directors present at the meeting were those who carried on business in ’futures’ in gut with the company and did after March 14 1949 carry on that business. The company’s business was devised on the basis of the Companies Act 1913 as Originally enacted when there was no prohibition against a director entering into transactions with the company. Even after the Amendments to the Company’s Act by Act 22 of 1936 which imposed disqualification on directors entering into transactions with their companies the modus operandi of the business of the company continued to remain the same as it was The appellant company qualified for membership of the respondent company and entered into dealing with it in ’futures’ in gut and deposited large amounts with the respondent in respect of their transactions. On February 15 1950 the Government of India issued a notification amending the SugarProhibition Order and made it applicable to ’futures’ and Options in Gur. By that order no person could after the appointed day enter into ’future’ in gur or "pay or receive or agree to pay or receive any margin in connection with any such futures." The Board of Directors of the respondent on February 15 1950 resolved to settle outstanding transactions at the prevailing rate on the closing day of February 14. 1950 The appellants then filed a petition for winding up of the Company. The High Court dismissed the petition In appeal to this Court it was contended that: by virtue of the notification dated February 15 1950 all outstanding transactions in ’futures’ in gut became void ii) the resolution dated March 14 1949 which permitted the company to enter into transactions in ’futures’ in gut was invalid since the directors who took part in the meeting were disqualified under ss. 861(1)(h) and 91 B of the Indian Companies. Act 1913 as amended by Act 236 and the company had not incorporated in its Articles Regulation 94 of Table A which validated acts done by directors when disqualifications attaching to them were subsequently discovered the resolution dated February 15 1950 was not passed in the interests of the company and the resolution amounted to repudiation of the contracts by the company andby reason of the notification by the Government the substratum of the company was destroyed and no business could be carried on by the HELD: No Case was made out for winding up of the company i) The notification prohibiting transactions in ’futures’ in gut operates only prospectively. The prohibition imposed against payment or agreement to pay or receive margin is made in connection receipt or agreement and the expression ’such’ futures’ means transactions in futures to be entered into on or after the date if the notification.No express provision has been made to invalidate outstanding transactions in ’futures’ and there are clear indications in the terms of the notification which show a contrary intention. The resolution dated March 14 1949 cannot be challenged in view of Regulation 94 of Table A. By the operation of s. 18 of the Companies Act the Regulation must be deemed to be incorporated in the Articles of Association of the CompanY.The Regulation was not expressly excluded by the Articles it was not excluded by implication because it was not inconsistent with any other express provision in the Angeles. There is no evidence that the directors were aware of the disqualification which would be incurred by entering into transactions with the company without the express sanction of the directors and by the subsequent discovery of such a disqualification the resolution was not rendered invalid.In passing the resolution dated February 15 1950 the Board of Directors acted in the light of the situation prevailing then as prudent businessmen for the protection of the interests of the company and its members. Since after the notification. no reverse transaction to protect the company against loss if a member failed to pay margin was possible the company had to devise effective means to settle the outstanding transactions. The resolution did not put an end to outstanding contracts it merely fixed the rate at which transactions were to be settled on the due date the possibility of any fresh transactions in futures so long as the notification remained in force being completely ruled out. The contracts if they were to be settled by payment of differences could still be settled on the due date at the rates fixed and it was open to the appellants 10 deliver goods’ under the contract if they desired to do so. Imposition by the Central Government of a prohibition by its notification dated March 1 1950 restraining persons from offering and the Railway administration from accepting for transportation by rail any gur except with the permit of the Central Government does not lead to frustration of the contracts. In the present case the object for which the company was incorporated has not substantially failed and it cannot be said that the company could not carry on its business except at a loss nor that its assets’ were insufficient to meet its liabilities.Primarily the circumstances existing’ at’ the date of the petition must be taken into consideration for determining whether a case is made out for holding that it is lust and equitable that the company should be wound upsettlement. On August 9 1949 Seth Mohan Lal and Company purchased one share of the Company and qualified for membership.They commenced dealing with the Company in futures" in gur.By December 1949 Seth Mohan Lal and Company who will hereinafter be called ’the appellants’ had entered into transactions with the Company which aggregated to 1136 Bijaks of sale of gur for the Paush Sudi 15 2006 delivery. The appellants also claimed that they had entered into sale transactions in 2137 Bijaks in the benami names of five other members.In January 1950 there were large fluctuations in the prices of gur’ and in order to stabilise the prices the directors of the Company passed a resolution in a meeting held on January 7 1950 declaring that the Company will not accept any settlement of transaction in excess of Rs. 17 8 per maund. The sellers were required to deposit margin money between the prices prevailing on that date and the maximum rate fixed by the Company. The appellants deposited in respect of their transactions Rs. 5 26 996 ’14 as margin money. They claimed also to have deposited amounts totaling Rs. 7 lakhs odd in respect of their benami transactions In exercise of the powers conferred by s. 3 of the Essential SuppliesAct 24 of 1946 the Government of India issued a notification on February 15 1950 amending the sugarProhibition Order 1949 and made it applicable to "futures" and options in gur. By that Order entry into transactions in "futures after the appointed day was prohibited. On the same day the Board of Directors of the Company held a meeting and resolved that the rates of gur which prevailed at the close of the market on February 14 1950 viz. Rs. 17 6 per maund be fixed for settlement of the contracts of Phagun delivery.It was recited in the resolution that five persons including Lala Mohan Lal partner of the appellants were present at the meeting on special invitation.In cl. 2 of the resolution it was recited that as the Government had banned all forward contracts in gur it was resolved to take the prevailing market rate on the closing day of. February 14 1950 which was. Rs. 17 6 per maund for Phagun delivery and to have all Outstanding transactions of Phagun delivery settled at that Entries were posted in the books of account of the Company on the footing that a11 outstanding transactions in futures in gur were settled on February 15 1950. In the account of Mohan Lal & Company an amount of Rs 5 26 996 14 stood to the credit of the appellants. Against that amount Rs. 5 15 769 .5 were debited as "loss adjusted" and on February 15 1950 an amount of Rs. 11 227 9 stood to their credit. Similar entries were posted in the. accounts of other persons who had outstanding transactions in gur On February 22 1950 the appellants and their partner Mohan Lal filed a petition in the High Court of Judicature at Allahabad for an order winding up the Company. Diverse grounds were set up in the petition. The principal grounds were that the Company was unable to pay its debts that it was just and equitable to wind up the Company because the directors and the officers of the Company were guilty of fraudulent acts resulting in misappropriation of large ’funds and that the substratum of the Company had disappeared the business of the Company having been On February 23 1951 another petition was filed by the appellants and their partner Mohan Lal for an order winding up the Company.. It purported to raise certain grounds which it was submitted had not been raised in the first petition and which had arisen since the first petition was instituted. In the second petition it was averted that by virtue of the notification issued by the Government the forward contracts in gur had become void and the appellants were entitled to be repaid all the amounts deposited by them that the outstanding’ contracts. stood. rescinded and the Company having paid out large sums to its directors and other shareholders was not in a position to meet its liability to the appellants Brij Mohan Lal J. held that the Company was not unable to pay its debts and that it was not just and equitable to wind’ up the Company on the grounds set out in the petition Orders passed by Brij Mohan. Lal J.’ dismissing..the petitions were confirmed by the’ High’ Court ’of Allahabad in its appellate jurisdic tion. With certificates granted by the High Court these two appeals have been preferred by the appellant’s and their partner Mohan Lal The High Court held that by the notification dated February 15 1950 the outstanding transactions of "futures" in gur did not become void that in. fixing the rate of settlement by resolution dated February 15 1950 and settling the transactions with the other contracting parties at that rate the directors acted prudently and in the interests of the Company and of the shareholders and in making payments to the parties on the basis of a settlement at that rate the directors did not commit any fraudulent act or misapply the funds.of the Company that the case of the appellants that apart from the transactions entered into by them in their firm name they had entered into other transactions benami in the names of other firms and that the Company had mala fide settled those transactions with those other firms was not proved and that the Board of Directors was and remained properly constituted at all material times and no provision of the Companies Act was violated by the directors trading with the Company Counsel for the appellants contendedthat by virtue of the Notification issued by the Central Government on February 15 1950 all outstanding "futures" in gur became void that the resolution dated March 14 1949 was void because there was no quorum at the meeting of the Company c ) that their solution dated February 15 1950 by the Board of Directors was not passed in the interests of the Company but to serve private interests of the directors that in any event the substratum of the Company ceased to exist and the Company could not after the Government Notification carry on business in gur In support of his contention that by the order isued by the Central Government on February 15 1950 the outstanding transactions in futures in gut became void counsel for the appellants relied’ upon a press note issued by the Government of India relating to the amendments made in the SugarProhibition Order 1949. In the press note apparently it was stated that all transactions in futures" in sugar gur gur shakkar and rab made before the commencement of the order or remaining to be fulfilled’ shall be void and not enforceable by law. The interpretation of the order depends not upon how the draftsman of the press note understood the notification but upon the words used therein..The relevant clauses of the Order after the amendment read as follows " 2’Futures in sugar and gur mean any agreement relating to the purchase or sale of sugar or gur on a forward basis and providing for delivery at some future date and payment of margin on such date or dates as may be expressly or impliedly agreed upon by the parties 2(e) ’margin’ means the difference between the price specified in an agreement relating to the purchase of or sale of sugar and gur and the prevailing market price for the same quality and quantity of sugar or gut on a particular day 2(f) ’Option in sugar or gur’ means an agreement for the purchase or sale of a right to buy or a right to sell or a right to buy and sell any sugar or gut in future and includes a teji mandi and teji mandi in any sugar 3. On or after the appointed day no person shall save with the permission of the Central Government in this behalf or of an officer authorised by the Central Government in this behalf enter into any futures in sugar or gur or pay or receive or agree to pay or receive any margin in connection with any such futures enter into any option in sugar or gur 4. Any option in sugar or gur entered into before the appointed day and remaining to be performed. whether wholly or in part shall be void within the meaning of the Indian Contract Act 1872 and shall not be enforceable by law By cl. 3(a) all persons are prohibited save with the permission of the Central Government in that behalf from entering into "futures" in sugar or gut: the clause also prohibits receipt or payment of or agreement to pay or receive any margin in connection with any such futures. The clause in terms operates prospectively. Clause 3(b prohibits options in gut and sugar and el. 4 expressly invalidates options in sugar and gut entered into before the appointed day and remaining to be performed whether wholly or in part. The contrast between the provisions relating to futures" and "options" is striking. While imposing a prohibition on options the Central Government has also expressly provided that all outstanding options shall be void. No such provision is made in respect of outstanding futures". Counsel for the appellants however commended that when the Central Government imposed a prohibition against payment or receipt or agreement to pay or receive any margin in connection with the outstanding "futures " the futures" were also prohibited. But the prohibition imposed against payment or receipt or’ agreement to or receive margin is made in connection with such futures pay and the expression such futures means "futures of the like or similar kind previously mentioned i e transactions in "futures" to be entered into on or after February 15 1950. If it was intended by the Central Government to declare void outstanding transactions in futures" the Central Government would. specifically have imposed a prohibition against payment or receipt of or agreement to pay or receive margin in connection with all"futures". A transaction in "future" in gur may be settled by payment of margin or by actual delivery and the Order does not prohibit the settlement of the transaction by specific delivery of goods. If the plea for the appellants be accepted the Central Government may be attributed a somewhat singular intention of permitting outstanding futures in gur to be carried out by giving and taking actual delivery of goods contracted for but not by payment and receipt of margin.if it was intended to invalidate transactions in futures which were outstanding on February 15 1950 an express provision to that effect could have been made.No such provision has been made and there are clear indications in the terms of the notification which show a contrary intention. Prohibition against payment or receipt of margin money under transactions entered into after February 15 1950 is not redundant: it was enacted presumably with a view to maintain control over the transactions made with the sanction of the Central Government But said counsel for the appellants the resolution dated March 14 1949 which permitted the Company to enter into transactions in "futures" in gut was invalid because the directors who took part in the meeting were disqualified under ss. 861(1)and 9lB of the Indian Companies Act 1913 and the Company could not retain money paid in pursuance of unauthorised transactions It was resolved unanimously in the meeting of the Board of Directors convened on March 14 1949 that forward transactions in gut for Phagun Sudi 15 Samvat 2006 i.e. March 4 1950 "may be started according to the rules" laid down therein. It was said that the resolution which authorised transactions of futures" in gur in the manner in which the Company was carrying on its business entailed disqualification of the Directors and as the Directors were disqualified there was no quorum and no proper resolution and therefore all transactions entered into and any payment made pursuant to that resolution were invalid and the Company was bound to refund the amounts paid by the appellants from time to time The Company had 11 directors: out of these 9 directors were carrying on business with the Company. It appears that at the meeting dated March 14 1949 all the directors present were those who carried on business in "futures" in gur with the Company and did after March 14 1949 carry on that business. Under the Indian Companies Act 1913 as originally enacted there was no prohibition against a director entering into transactions with the Company and on that footing the scheme of the Company’s business was devised. Under the Articles...of Association no person could remain a member of the Company who was found not to’ be doing any transaction or business :through the Company continuously for six months and a person could be elected a director if he held 10 shares in his own name or in the name of the firm of which he was a proprietor or a partner. A director of the Company had therefore to hold ten shares and had to carry on business with the Company If he ceased to do business for a period of six months he ceased to be a member of the Company and on that account ceased also to be a director of the Company. The Articles of Association prescribed diverse contingencies in which a director was to vacate his office but carrying on business with the Company was not made a ground of disqualification The Company had started business in the year 1931. In 1936 several important amendments were made in the Indian Companies Act 1913. By s. 86F which was incorporated by Act 22 of 1936 it was provided "Except with the consent of the directors a director of the company or the firm of which. he is a partner or any partner of such firm or the private company of which he is a member or director shall not enter into any contracts for the sale purchase or supply of goods and ’materials with the company Section 861 enumerated the Conditions or situations in which the office of’ director was vacated. Insofar as the section is material it provides 1) The office of a director ’shall be vacated if he acts in contravention of section 86F Section 91B which was inserted by Act 114 as modified by Act 236 by the first sub section provided "No director shall as a director vote on any contract or arrangement in which he is either directly or ’indirectly concerned or interested nor shall his presence ’count for the purpose of forming a quorum at the time of any such vote and if he does so vote his vote shall not be counted After the amendment of the Indian Companies Act by Act 26 the Rules of the Company were not modified and the Company apparently carried on business in the same manner in which it was originally carrying on its business. It appears that the directors were oblivious of the requirements of s. 86F and of the provisions of s. 861 and s. 91B and the modus operandi of the business continued to remain the same as it was previously. On the terms of s 86F(1) all directors of the Company were prohibited unless the directors consented thereto from entering into contracts for the sale purchase or supply of goods and materials with the Company. On behalf of the Company it was urged that by the resolution dated March 14 1949 the directors resolved generally to sanction all transactions of the directors for the sale and purchase in commodities in which the Company carried on business and on that account notwithstanding the prohibition contained in s. 86F the directors did not vacate their office. Counsel for the appellants urged that the consent of the directors contemPlated by s. 86F is consent in respect of each specific contract to be entered into and no general consent can be given by the directors authorising a director or directors of the Company to sell purchase or supply goods and materials to the Company. Such a general resolution without considering the merits of each individual contract would it was urged amount to repealing the provisions of s. 86F. Strong reliance was placed upon the judgment of the Bombay High Court in Walchandnagar Industries Ltd. and others v. Ratanchand Khimchand Motishaw(1 It is not necessary for the purpose of this case to decide whether in any given set of circumstances a general consent may be given by the Board of Directors to a director or directors to enter into contracts for sale or purchase or supply of goods and materials with the Company so as to avoid the prohibition contained in s. 86F of the Indian Companies Act for in our view the resolution dated March 14 1949 cannot be challenged in view of Regulation 94 of Table A which for reasons to be presently mentioned must be deemed to be incorporated in the Articles of Association of the Company Regulation 94 of Table A in the First Schedule is not one of the obligatory regulations which is to be deemed by s. 17(2) of the Indian Companies Act 1913 to be incorporated in the Articles of Association. Section 18 provides "In the case of a company limited by shares and registered after the commencement of this Act if articles are not registered or if articles are registered insofar as the articles do not exclude or modify the regulations 1) I.I.R.Bom. 623 in Table A in the First Schedule those regulations shall so far as applicable be the regulations of the company in the same manner and to the same extent as if they were contained in duly registered articles The respondent Company is limited by shares and was registered after the commencement of the Indian Companies Act 1913: the Company has adopted special Articles of Association but there is no Article which excludes or modifies Regulation 94 of Table A and by the operation of s 18 of the Act that Regulation must be deemed to apply in the same manner and to the same extent as if it was contained in the registered articles of the Company. We are unable to hold that because the Company has not incorporated regulation 94 of Table A in its Articles of Association an intention to exclude the applicability of the regulation to the Company may be inferred. Regulation 94 of Table A is not expressly excluded by the Articles of the Company that is common ground. It is not excluded by implication for it is not inconsistent with any other express provision in the Memorandum of the Articles of Association. It therefore follows that Regulation 94 must be deemed to be incorporated in the Articles of Association of the Company. That "All acts done by any meeting of the directors or of a committee of directors or by any person acting as a director shall notwithstanding that it be afterwards discovered that there was some defect in the appointment of any such directors or persons acting as aforesaid. or that they or any of them were disqualified be as valid as if every such person had been duly appointed and was qualified to be a director There is no evidence that the directors were aware of the disqualification which would be incurred by entering into contracts of sale or purchase or supply of goods with the Company without the express sanction of the directors.By the subsequent discovery that they had incurred disqualification because they had entered into contracts with the Company for sale or purchase or supply of goods the resolution passed by them is not rendered invalid.It is in the view we have taken unnecessary to decide whether s. 86 of the Indian Companies Act 1913 also grants protection to acts done by directors who are subsequently discovered to be disqualified Section 91B imposes a prohibition against a director voting on any contract or arrangement in which he is either directly or indirectly concerned or interested. But the directors of the Company are not shown to have voted on any existing contract or arrangement. At the meeting dated March 14 1949 they resolved that the Company shall commence business in futures" in gur according to the rules set forth in the resolution. Thereby the directors were not voting on a contract or arrangement in which they were directly or indirectly concerned or interested It must then be considered whether the resolution of February 15 1950 was passed by the Board of Directors with a view dishonestly to make profit for themselves and for others who were purchasers and to cause loss to the appellants. In the light of the situation prevailing on February 15 1950 in our judgment the Board of Directors acted in passing the resolution as prudent businessmen for the protection of the interests of the Company and the members. Since the promulgation of the sugar and Gur Futures and Options) Prohibition Order 1950 if any member of the Company failed to pay the margin the Company could not enter into a reverse transaction. That was prohibited Whereas the outstanding transactions were valid a very important sanction which the Company could impose against the member who failed to pay the margin became ineffective It was therefore necessary in the interest of the Company to devise an effective scheme for settlement of those transactions. Again in view of the imposition of severe restrictions by the Government on transport of gut by rail or by mechanised transport it was well nigh impossible for the members to give or take delivery of gut. It was therefore resolved that all outstanding contracts shall be settled at the rate prevailing on the evening of February 14 1950. It may be recalled that on January 7 1950 the Board of Directors had resolved because the prices of gur were spiraling that all outstanding transactions in gut will be settled at the rate of Rs. 17 8 ’ per maund whatever may be the price ruling at the date of settlement. The appellants had sold 1 123 Bijaks of gut at an average rate of Rs. 12 13 9 per maund and those transactions in futures" were not invalidated by the notification issued by the Government. But since no. reverse transaction to protect the Company against loss if a member failed to pay margin was possible the only practical way out was to provide for settling the outstanding transactions. This the Board of Directors did by taking the rate which was prevailing in the evening of February 14 1950 as the rate of settlement of all the outstanding transactions. The resolution however did not put an end to the outstanding contracts as on February 15 1950: the resolution merely fixed the rate at which the transactions were to be settled on the due date the possibility of any fresh transactions in futures so long as the Order remained in force being completely ruled out. It may be noticed that the appellants’ representative was present at the meeting and he was apparently heard. Whether or not he agreed to the passing of the resolution iS immaterial. But we are unable to hold that the resolution was passed with a view to benefit the directors: it appears that the resolution was passed with a view to protect the interests of the Company and its members But it was urged that simultaneously large amounts were tended to be paid to the members who had purchase contracts outstanding and for that purpose it was resolved to borrow money from the Allahahad Bank and the Central Bank of India Ltd. This it was urged disclosed anxiety on the pan of the directors to appropriate to themselves the liquid funds and to deprive the appellants of the benefit of any fall in the prices after February 15 1950. It is true that in the books of account of the Company the transactions were shown to have been settled as on February 14 1950. But we agree with the High Court that the entries in the books of account of the Company were not in accordance with the resolution and no intimation was given to any of the members of the Company ’that the transactions were so closed. There is no clear evidence about the dates on which payments were made to the purchasers in respect of their out. standing transactions But that in our judgment is not material. It appears from the agreed statement flied before the Company Judge that if the seller made a deposit to cover the rise in prices the purchaser was entitled to withdraw from the Company the profit which he had made under his cross transaction. even before the date of settlement. It was clearly contemplated that when a seller deposited the difference between the price at which he had agreed to sell gut for future delivery the ruling rate being higher than the rate at which he had agreed to sell it was open to the purchaser to approach the Company and to call upon it to pay him the profit. Whether or not this right was strictly enforced is irrelevant. It appears from Ext. D 10 that as many as 133 persons having sale transactions had made deposits of diverse amounts with the Company aggregating to Rs. 36 38 932 2 9. The purchasers under the corresponding transactions were entitled to withdraw the profits. earned by them out of the deposits so made. By allowing the purchasers to withdraw the amounts which they were entitled to under the business rules of the Company after the contracts were frozen the directors of the Company acted according to the rules and not contrary The attitude of the appellants in respect of the outstanding contracts since February 15 1950 has also an important bearing. On February 23 1950 the management of the Company addressed a letter informing the appellants that in the interests and for the benefit of the trade the Board of Directors had passed a resolution on February 15 1950 to settle the outstanding transactions at the rate prevailing in the market on February 14 1950 That resolution it was stated was for the benefit of the appellants but if the appellants wanted to deliver the goods they should intimate the date and place on which they were prepared to give delivery of goods according to the outstanding contracts on Phagun Sudi 15 Sam vat 2006 in terms of the rules and bye laws of the Company. The appellants denied having received this letter.’ But we are unable to accept that denial. On March 1 1950 the appellants wrote a letter stating that because of the notification issued by the’ Central Government the performance of the contracts had become impossible and that the Company was liable to refund all the amounts deposited with interest thereon and that the illegal settlement dated February 15 1950 amounted to repudiation of the contracts by the Company and those contracts stood rescinded. The appellants apparently insisted that the transactions became impossible of performance in view of the prohibition contained in the notification published by the Central Government and contended that the resolution amounted to repudiation of the contracts by the Company. But by the resolution in our judgment there was no repudiation of the contracts by the Company. The contracts if they were to be settled by payment of differences could be settled on the due date at the rates fixed: it was however open to the appellants to deliver goods under the contracts if they desired to do so The plea that there was frustration of the contracts and on that account the Company was liable to refund all the amounts which it had received has no substance. As we have already held the outstanding contracts were not at all affected by the Government Order. Imposition by the Central Government of a prohibition by its notification dated March 1 1950 restraining persons from offering and the Railway Administration from accepting for transportation by rail any g.r except with the permit of the Central Government from any station outside the State of Uttar Pradesh which was situated within a radius of thirty miles from the border of Uttar Pradesh does not lead to frustration’ of the contracts. Fresh contracts were prohibited but settlement of the outstanding contracts by payment of differences was not prohibited nor was delivery of gut in pursuance of the contract and acceptance thereof at the due date by the Company prohibited. The difficulty arising by the Government orders in transporting the goods needed to meet the contract was not an impossibility contemplated by s. 56 of the Contract Act leading to frustration of the contracts Finally it was urged that by reason of the notification issued by the Central Government the substratum of the Company was destroyed and no business could be carried on by the Company thereafter. 11 was said that all the liquid assets of the Company were disposed of and there was no reasonable prospect of the Company commencing or carrying on The Company was carrying on extensive business in futures" in gut but the Company was formed not with the object of carrying on business in "futures’ in gut alone but in several other commodities as well. The Company had immovable property and liquid assets of the total value of Rs. 2 54 000. There is no’ evidence that the Company was unable to pay its debts. Under s. 162 of the Indian Companies Act the Court may make an order for winding up a Company if the Court is of the opinion that it is just and equitable that the Company be wound up. In making an order for winding up on the ground that it is just and equitable that a Company should be wound up the Court will consider the interests of the shareholders as well as of the creditors. Substratum of the Company is said to have disappeared when the object for which it was incorporated has substantially failed or when it is impossible to carry on the business of the Company except at a loss or the existing and possible assets are insufficient to meet the existing liabilities. In the present case the object for which the Company was incorporated has not substantially failed and it cannot be said that the Company could not carry on its ’business except at a loss nor that its assets were insufficient to meet its liabilities. On the view we have taken there were no creditors to whom debts were payable by the Company. The appellants had it is true filed suits against the Company in respect of certain gur transactions on the footing that they had entered into transactions in the names. of other persons. But those suits were dismissed. The business organisation of the Company cannot be said to have been destroyed merely because the brokers who were acting as mediators in carrying out the business between the members had been discharged and their accounts settled. The services of the brokers could again be secured. The Company could always restart the business with the assets it possessed and prosecute the objects for which it was incorporated. It is true that because of this long drawn out litigation the Company’s business has come to a stand still. But we cannot on that ground direct that the Company be wound up. Primarily the circumstances existing as at the date of the petition must be taken into consideration for determining whether a case is made out for holding that it is just and equitable that the Company should be wound up and we agree with the High Court that no such case is made out The appeals fail and are dismissed with costs. One hearing Y.P. Appeal dismissed

Amount recoverable from accused person cannot be seized from his parents: High Court of Jammu and Kashmir

When a person is accused of misappropriation of funds, the police may be authorised to recover the amount from him during the criminal investigation. However this amount can only be recovered from the accused himself and not his parents or relatives. This was held in the judgement passed by a bench consisting of Justice Ali Magrey of the High Court of Jammu and Kashmir in the case of Sheikh Mohammad Aslam & Anr. v Union Territory of Jammu and Kashmir [CRM(M) No. 161/2021  CrlM No. 537/2021] pronounced on the 14th of June 2021. The Jammu and Kashmir Police seized an amount of Rs. 9,00,000 from the possession of the petitioners during  a search of their house. The petitioners, Sheikh Mohammad Aslam and his wife were not named as accused in the First Information Report; however they are the parents of the accused who has allegedly misappropriated money by accepting advance payments made to him which were against the norm. The petitioners submitted before the court that the seized money was their life savings and that the job of the police was to investigate the alleged offence and not to seize money from people who played no role in the commission of the alleged offence. As a result of this, the petitioners pleaded before the court to direct the release of Rs. 9,00,000 seized from them and to quash an order passed on 14th May 2021 by the Special Anti-Corruption Judge, Srinagar which rejected the same prayer of the petitioners. The respondents argued that they were authorised to recover an amount of Rs 11,00,000 from the accused person, however conceded that the petitioners were not accused of any offences. The High Court noted that an amount recoverable from the accused son in a criminal investigation cannot be recovered from his elderly parents by seizing the amount from their house and that therefore the seizure was not justified.

HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR CRM(M) No. 161 2021 CrlM No. 537 2021 Reserved on: 01.06.2021 Pronounced on: 14.06.2021 Sheikh Mohammad Aslam & Anr. Through: Mr Shuaj Ul Haq Advocate. UT of JK th. Senior Superintendent of Police Crime Branch. Through: Mr Mohsin Qadri Senior Advocate with Ms Jasia Ali Advocate. Hon’ble Mr Justice Ali Mohammad Magrey Judge. In the instant petition the petitioners challenge to order of the learned Special Judge Anti Corruption Kashmir Srinagar dated 14th of May 2021 passed in the application titled Sheikh Mohammad Aslam & Anr vs UT of J&K through Superintendent of Police Crime Branch Srinagar Kashmir and seek its quashment with further direction to release the amount of Rs. 9.00 lakhs in favour of the petitioners. The petitioners seek release of the seized amount as also quashment of order impugned dated 14th of May 2021 on the grounds detailed out as under: That the order impugned dated 14 5 2021 is bad in law and has been passed by the Ld. court of Special Judge Srinagar in a most casual and mechanical manner. It is submitted that while passing the order impugned the Ld. court of Special Judge Srinagar has not correctly appreciated the facts and circumstances attendant to CRM(M) No. 161 2021 CrlM No. 537 2021 the case of the petitioners vis à vis the release of cash amount of Rs. 9.00 lakhs which was taken out from the possession of the petitioners and seized by the respondent during the search. It is submitted that in the order impugned dated 14 5 2021 the main ground for rejection of the prayer of the petitioners for seeking release of the cash amount has been based on the fact that the investigation of the case was at its initial stage and the release of the money at this stage would defeat very purport of the investigation. Besides it has also been stated by the Ld. court of Special Judge Srinagar that the release of the money at this stage would hamper the investigation of the case. The application has been held to be premature as such came to be rejected by the Ld. court of Special JudgeSrinagar. It is submitted that grounds taken by the Ld. court of Special Judge Srinagar for rejecting the application filed by the petitioners are unreasonable unjust and unfounded as the Ld. court of Special JudgeSrinagar has failed to return any finding with reference to the seizure of the money which was taken out from the possession of the petitioner No. 2. On one hand the Ld. Trial court has stated that petitioner No. 1 has not been arrayed as accused in the FIR while as on the other hand it has been stated that the name of the petitioner is also reflected in the case diary as an accused. Besides the trial court has also stated that the petitioners are none other than the parents of the ‘accused public servant’ who was accused in the misappropriated money related to the case. In this regard it is submitted that the son of the petitioners is not a public servant as is clearly reflected in the police report as well as objections filed by the respondent. However the Ld. Trial court has wrongly held that the son of the petitioner was a public servant. On this count alone the order impugned is bad in law as such deserves to be quashed at the very outset. That the Ld. Court below has also failed to appreciate the averments made in the report filed by the respondent. It is submitted that from the bare perusal of the report which had been filed by the respondent police before the court below it transpired that FIR No. 18 2021 pertains to execution of the CRM(M) No. 161 2021 CrlM No. 537 2021 works by JKPCC in the year 2015. The allegation against the son of the petitioner namely Sheikh Zubair Aslam has been that in the year 2017 he worked as Peace Worker and an amount of Rs. 1 12 57 000 had been paid to him and his father and uncle. The said amount was adjusted against the works found executed mostly on account of providing materials like Marbles Granite and Iron etc. Out of the amount of Rs. 1 12 57000 an amount of Rs. 11.00 lakhs is claimed to have been unrecovered amount and on the basis of this un adjusted amount favoritism and violation of rules and regulations has been alleged forming basis for roping the son of the petitioners in the FIR. It has been alleged that advance payment was made to the son of petitioners which was against the norms. In this regard it is submitted that the allegations as alleged even if taken to be true in its content and form does not fall within the ambit of commission of offence by the son of the petitioners. The recovery of the amount if due from any private individual is not the job of Police but the job of the Civil Administration entailing civil action. The job of the police machinery is to investigate the commission of the offence and to see as to whether alleged act falls within the ambit of the provisions of the Penal code or not. In the instant case the petitioners are not the accused and it has also nowhere been mentioned that the amount so recovered from the possession of the petitioners constituted any offence which is sine quo non for seizure of any property during investigation trial. Thus the order impugned deserves to be quashed on this count alone. That in the objections it had been stated that Rs. 11.00 lakhs is unrecovered from the accused person namely Sheikh Zubair Aslam and the police was on the job of recovering the said amount. Here the question is whether the investigation of an offence is a substitute for a civil suit civil action and the police has free hands to recover the money from personal saving of the old aged parents of the alleged accused. . Although this question was raised and pleaded before the court below but the Ld. Court below has returned any finding on this vital issue which vitiates the whole action of the respondent. CRM(M) No. 161 2021 CrlM No. 537 2021 That since the cash amount of money which has been taken away from petitioners has not been found under any such circumstances which would create suspicion of commission of any offence by the petitioners therefore there was no reason or justification for the respondent to withheld the money which exclusively belonged to petitioners and under the present circumstances where whole world is shattered with Covid 19 was is a means of survival for the petitioners who are in their old age. That the petitioners although are the father and mother of Sheikh Zubair Aslam but under law they cannot be held vicariously liable for the alleged criminal act of their son. The alleged criminal act of their son cannot be read against the petitioners who are peace loving citizens and tax payers and having completely separate business from their son. It is beaten position of law that no one can be punished for the offence of That the Prevention of Corruption Act has been enacted to deal with the public servants who receive gratification other than legal remuneration in respect of an official act and who by corrupt or illegal means or by abusing position obtain for himself or for any other person any pecuniary advantage or valuable thing or such public servant who is found to be in possession or has at any time during the period of his office in possession of property for which he cannot satisfactorily account of pecuniary resources or property disproportionate to his known sources of income yet there is no specific provision in the Act itself as to how or in what manner the said property can be dealt with by the Investigating Officer even if he comes to the conclusion that the assets in the possession of the public servant is directly linked with the commission of the offence. It is therefore the provisions of Section 102 of the Criminal Procedure Code if that confers power of seizing and or prohibiting operation of bank account the Investigating Officer can pass orders of seizing the bank account or issue prohibitory order to the banks not to allow the account holder to operate the account. Section 102 of the Code of Criminal Procedure is reproduced as under: CRM(M) No. 161 2021 CrlM No. 537 2021 “SEC. 102. Power of Police Officer to seize certain property. which are that it must be property and secondly in respect of the said property there must have suspicion of commission of any offence. It is submitted that under Section 102 of the Criminal Procedure Code a police officer during the course of investigation can seize the property or prohibit the operation of bank account if such assets have direct links with the commission of the offence for which the police officer is investigating into. That the Seizure and production in court of any property including those regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence or any other property will have a two fold effect. Production of the above property may be necessary as evidence of the commission of the crime. Seizure CRM(M) No. 161 2021 CrlM No. 537 2021 may also have to be necessary in order to preserve the property for the purpose of enabling the court to pass suitable orders under Sec. 452 of the Criminal Procedure Code at the conclusion of the trial. This order would include destruction of the property confiscation of the property or delivery of the property to any person claiming to be entitled to possession thereto. That since the order impugned has not only caused great injustice to the petitioners but is also a flagrant abuse of process of law as such the order impugned deserves to be quashed at the very outset. That all the grounds taken by the petitioners in the application for seeking release of the amount before the Ld. Court below are also adopted as grounds in this petition as well. It appears from the material on record that in First Information Report registered with the police station Crime Branch bearing FIR No. 18 2021 under sections 420 468 120 B of RPC read with section 5of P.C. Act the petitioners are admittedly not the accused therefore I need not to discuss the case of the prosecution because the issue involved in the instant petition is limited to seizure of the amount. It appears that during the course of investigation the Investigating Officer in exercise of powers vested under law has seized the amount and the petitioners being dissatisfied with such action on the part of the Investigating Officer have filed the application seeking release of amount before the court of Special Judge Anti Corruption Kashmir Srinagar which application stands rejected by the trial court on the ground that the investigation is still on and there is every apprehension i. That the release of the amount may defeat very purport of the investigation and the release of money at this stage would hamper the investigation of the case. The application has been held to be CRM(M) No. 161 2021 CrlM No. 537 2021 In the status report the Respondent Crime Branch has reiterated the stand taken before the trial court discussing the progress of investigation and the result of releasing the amount defeating the purpose of investigation and hampering the further progress but have admitted that the petitioners are not the accused in the case and are only relatives of the accused. 04. Heard learned counsel for the parties considered the matter and perused the material available on record. 05. The petitioners herein are admittedly not the accused in the FIR and are father and mother of the accused from whose possession the amount of Rs. 9.00 lakhs stand seized by the Investigation Officer and continuation of the seizure by the Investigation Officer is defended on the ground that its release will defeat the purpose of investigation and will hamper further progress of the investigation. 06. Admittedly 1800 notes of 500 denomination are seized and after seizure no further investigation is required for that purpose. The investigation to the extent of seizure of amount is admitted by the petitioners from them therefore it is not understood as to how its utilization will defeat the purpose of investigation and hamper the further progress. Rather it would deprive the petitioners from utilizing the money which is seized from their possession and in the event there is any requirement of disposal of any property of the accused. Same is available from the property of their son through that is not the question involved here. 07. The circumstances under which the Investigation Officer has the power to seize any property are detailed out in section 102 of the Code of Criminal Procedure and a plain reading of sub sectionof Section 102 indicates that the Police Officer has the power to seize any property which may be found CRM(M) No. 161 2021 CrlM No. 537 2021 under circumstances of any offence. The legislature having used the expression “any property” and “any offence” have made the applicability of the provisions wide enough to cover offences created under any Act. The availability of power of the circumstances available are detailed out in the judgments rendered by various High Courts and the Hon’ble Supreme Court of India therefore the law is no more res integra and has been interpreted in detail with the following observations: “10. In the case of Paresha G. Shah this Court observed as under “Like any other property a bank account is freezable. Freezing the account is an act in investigation. Like any other act it commands and behooves secrecy to preserve the evidence. It does not deprive any person of his liberty or his property. It is necessarily temporary i.e. till the adequate material is collected. It clothes the authority with the power to preserve a property suspected to have been used in the commission of the offence in any manner. The property therefore requires to be protected from dissemination depletion or destruction by any mode. Consequently under the guise of being given information about the said action no accused not even a third party can overreach the law under the umbrella of a sublime provision meant to protect the innocent and preserve his property. It is also not necessary at all that a person must be told that his bank account which is suspected of having been used in the commission of an offence by himself or even by another is being frozen to allow him to have it closed or to have its proceeds withdrawn or transferred upon such notice. In the aforesaid context I may quote with profit a decision of the Supreme Court in the case of State of Maharashtra v. Tapas D. Neogy MANU SC 0582 1999: of Section 102 of the Code. I may quote with profit the following observations made by the Supreme Court as contained in paras 5 to 12 of the judgment: “5. Coming now to the provisions of Section 102 of the Code of Criminal Procedure the said provisions are extracted herein below in extenso: “Sec. 102. Power of Police Officer to seize certain property. 1) Any police officer may seize any property which may be alleged or suspected to have been stolen or which may be found under circumstances which create suspicion of commission of any offence. Such police officer if CRM(M) No. 161 2021 CrlM No. 537 2021 subordinate to the officer in charge of a police station shall forthwith report the seizure to that officer. Every Police Officer acting under sub sec.shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be conveniently transported to the Court he may give custody thereof to any person on his executing a bond undertaking to produce the property before the Court as and when required and to give effect to the further orders of the Court as to the disposal of the 6. A plain reading of sub sectionof Section 102 indicates that the Police Officer has the power to seize any property which may be found under circumstances creating suspicion of the commission of any offence. The legislature having used the expression "any property" and "any offence" have made the applicability of the provisions wide enough to cover created under any Act. But preconditions for applicability of Section 102(1) are that it must be property and secondly in respect of the said property there must have suspicion of commission of any offence. In this view of the matter the two further questions that arise for consideration are whether the bank account of an accused or of his relation can be said to be property within the meaning of sub sectionof Section 102 of the Cr.P.C. and secondly whether circumstances exist creating suspicion of commission of any offence in relation to the same. Different High Courts in the country have taken divergent views in this regard. In the case of Ms. Swaran Sabharwal v. Commissioner of Police reported in MANU DE 0066 1990: 1988 Criminal Law Journal241 a Division Bench of Delhi High Court examined the question whether bank account can be held to be property within the meaning of Section 102 of the Cr.P.C. In the said case realized by sale of official secrets were deposited by the accused in his wife s account. The Court in that case came to hold that it is not quite sure whether monies deposited in a bank account can be seized by means of a prohibitory order under the provisions of Section 102 but even assuming that a bank account is a property within the meaning of Section 102 of the Code of Criminal Procedure the further consideration must be satisfied namely the property has been found under circumstances which create the suspicion of the commission of an offence. But in that case it is not the discovery of the property that has created suspicion of commission of an offence but on the other hand the discovery of the bank account is a sequel to the discovery of commission of offence inasmuch as the police suspected that some of the proceeds realized by the sale of the official secrets have been passed on to the bank account of the wife of the accused. Therefore the Court was of the opinion that the provisions of Section 102 cannot be invoked. In the case of M s. Purbanchal Road Service Gauhati v. The State reported in MANU GH 0058 1990: 1991 Criminal Law Journal 2798 a learned Single Judge of the Gauhati High Court examined the provisions of Section 102 of the Criminal Procedure Code and the validity of an order by a Police Officer prohibiting the bank from paying amount to the accused from his account. The learned Judge CRM(M) No. 161 2021 CrlM No. 537 2021 came to the conclusion that word seize used in Section 102 Cr.P.C. means actual taking possession in pursuance of a legal process and therefore in exercise of the said power a bank cannot be prohibited not to pay any amount out of the account of the accused to the accused nor can the accused be prohibited from taking away any property from the locker as such an order would not be a seizure within the meaning of Section 102 of the Criminal Procedure Code. The learned Single Judge agreed with the view taken by Allahabad High Court in the case of Textile Traders Syndicate Ltd. Bulandshahr v. The State of U.P. MANU UP 0099 1960: AIR 1960 Allahabad 405what was decided by the Court is once money passes on from the accused to some other person or to the bank money itself becomes unidentifiable and therefore there cannot be any question of seizure of the same by the Police Officer. 7. In the case of M s. Malnad Construction Co. Shimoga and Ors. v. State of Karnataka and Ors. MANU KA 0076 1993 : 1994 Criminal Law Journal(Vol. 100) 645 a learned Single Judge of Karnataka High Court examined the provisions of Section 102 of the Criminal Procedure Code and relying upon the Gauhati High Court s decision referred to supra came to hold that the seizure in Section 102 would mean taking actual physical possession of the property and such a prohibitory order to the banker of the accused not to operate the the Code and consequently the police has no power to issue such order. Thus the High Courts of Karnataka Allahabad Gauhati and Delhi have taken the view that the provisions of Section 102 of the Criminal Procedure Code cannot be invoked by the Police Officer in course of investigation to issue any prohibitory order to the banker or the accused from operating the bank account. is not contemplated under 8. In P.K. Parmar and ors. v. Union of India and anr. MANU DE 0423 1992: 1992 Criminal Law Journal 2499 Vol. 98) a learned Single Judge of Delhi High Court considered the power of police officer under Section 102 of the Criminal Procedure Code in connection with the fraudulent acquisition of properties and opening of fictitious bank accounts and withdrawal of huge amounts as subsidy from Government by producing bogus documents by the accused. The learned Judge took note of the earlier decision of Delhi High Court in Ms. Swaran Sabharwal v Commissioner of Police MANU DE 0066 1990: 1988 Criminal Law Journal 240 and analyzed the provisions of Section 102 of the Criminal Procedure Code and the facts of the case were as under. It was revealed that during investigation the prosecution came to know that without actually manufacturing phosphate and fertilizers the accused withdrew as much as Rs. 3.39 crores as subsidy from the Govt. of India by producing bogus documents. The Court ultimately came to the conclusion that the recovery of assets in the bank links prima facie with the commission of various offences with which they have been charged by the CRM(M) No. 161 2021 CrlM No. 537 2021 CBI and therefore the police officer could issue directions to various banks financial institutions freezing the accounts of the accused. The learned Judge in the aforesaid case has really considered the amount of money which the accused is alleged to have swindled by producing bogus documents which prompted him to hold that the power under Section 102 Cr.P.C. can be exercised. 9. In Bharath Overseas Bank v. Min MANU TN 0478 1988 : 1988 Madras Law Weekly 106 a learned Single Judge of the Madras High Court considered the same question and came to the conclusion that the expression property would include the money in the bank account of the accused and there cannot be any fetter on the powers of the police officer in issuing prohibitory orders from operating the bank account of the accused when the police officer reaches the conclusion that the amount in the bank is the outcome of commission of offence by the accused. The Court considered the fact as to how in modern days commission of white collar crimes and bank frauds are very much on the increase and banking facilities have been extended to the remotest rural areas and therefore the expression property may not be interpreted in a manner so as to exclude the money in a bank which in turn would have the effect of placing legal hurdles in the process of investigation into the crimes. According to the learned Judge such literal interpretation of the expression property could not have been the intent of the framers of the Criminal Procedure Code. In paragraph 11 of the said judgment the learned Judge referred to the object behind investing the police with powers of to extract the same in seizure. It will be appropriate “It would now be useful to refer to the object behind investing the police with powers of seizure. Seizure and production in court of any property including those regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence or any other property will have a two fold effect. Production of the above property may be necessary as evidence of the commission of the crime. Seizure may also have to be necessary in order to preserve the property for the purpose of enabling the Court to pass suitable orders under S. 452 of the Criminal Procedure Code at the conclusion of the trial. This order would include destruction of the property confiscation of the property or delivery of the property to any person claiming to be entitled to possession thereto. It cannot be contended that the concept of restitution of property to the victim of a crime is totally alien to the Criminal Procedure Code. No doubt the primary object of prosecution is punitive. However Criminal Procedure Code does contain several provisions which seek to reimburse or compensate victims of crime or bring about restoration of property or its restitution. As S. 452 Cr.P.C. itself indicates one of the modes of disposing of property at the conclusion of the trial is ordering their return to the person entitled to possession thereto. Even interim custody of property under Ss. 451 and 457 Cr.P.C. recognizes the rights of the person entitled to CRM(M) No. 161 2021 CrlM No. 537 2021 the possession of the properties. An innocent purchaser for value is sought to be re imbursed by S. 453 Cr.P.C. Restoration of immovable property under certain circumstances is dealt with under S. 456 Cr.P.C. Even monetary compensation to victims of crime or any bona fide purchaser of property is provided for under S. 357 Cr.P.C. Wherein when a Court while convicting the accused imposes fine the whole or any part of the fine if recovered may be ordered to paid as compensation to any person for any lose or injury caused by the offence or to any bona fide purchaser of any property after the property is restored to the possession of the person entitled thereto. This twofold object of investing the police with the powers of seizure have to be borne in mind while setting this legal issue.” 10. This Judgment of the learned Single Judge of the Madras High Court was followed in a later decision in the case of Bharat Overseas Bank Ltd. v. Mrs. Prema Ramalingam MANU TN 0835 1990: 1991 Madras Law Weekly353 wherein the learned Judge agreeing with Padmini Jesudurai J in Bharat Overseas Bank s case came to hold that money in bank account is property within the meaning of Section 102 of the Criminal Procedure Code which could be seized by prohibiting order. In the aforesaid case the learned Judge has also noticed the fact that the Judgment of Padmini Jesudurai J. in 1988 LW(Crl.)106 was upheld by the Division Bench subsequently. 11. In the case of Dr. Gurcharan Singh v. The State of Punjab MANU PH 0364 1978:1978(80) Punjab Law Reporter 514 a Division Bench of the Punjab & Haryana High Court differing with the view taken by the Allahabad High Court in MANU UP 0099 1960: AIR 1960 Allahabad 405 came to hold that the bank account would be property and as such would be capable of being seized under Section 102 of the Code of Criminal Procedure. 12. Having considered the divergent views taken by different High Courts with regard to the power of seizure under Section 102 of the Code of Criminal Procedure and whether the bank account can be held to be property within the meaning of said Section 102(1) we see no justification to give any narrow interpretation to the provisions of the Criminal Procedure Code. It is well known that corruption in public offices has become so rampant that it has become difficult to cope up with the same. Then again the time consumed by the Courts in concluding the trials is another factor which should be borne in mind in interpreting the provisions of Section 102 of the Criminal Procedure Code and the underlying object engrafted therein inasmuch as if there can be no order of seizure of the bank account of the accused then the entire money deposited in a bank which is ultimately held in the trial to be the outcome of the illegal gratification could be withdrawn by the accused and the Courts would be powerless to get the said money which has any direct link with the commission of the offence committed by the accused as a public officer. We are therefore persuaded to take the view that the bank account of the accused or any of his relation is property within the meaning of Section 102 of the Criminal CRM(M) No. 161 2021 CrlM No. 537 2021 Procedure Code and a police officer in course of investigation can seize or prohibit the operation of the said account if such assets have direct links with the commission of the offence for which the police officer is investigating into. The contrary view expressed by Karnataka Gauhati and Allahabad High Courts does not represent the correct law. It may also be seen that under the Prevention of Corruption Act 1988 in the matter of imposition of fine under sub sectionof Section 13 the legislatures have provided that the Courts in fixing the amount of fine shall take into consideration the amount or the value of the property which the accused person has obtained by committing the offence or where the conviction is for an offence referred to in clause of sub section(1) of Section 13 the pecuniary resources or property for which the accused person is unable to account satisfactorily. The interpretation given by us in respect of the power of seizure under Section 102 of the Criminal Procedure Code is in accordance with the intention of the legislature engrafted in Section 16 of the Prevention of Corruption Act referred to above. In the aforesaid premises we have no hesitation to come to the conclusion that the High Court of Bombay committed error in holding that the police officer could not have seized the bank account or could not have issued any direction to the bank officer prohibiting the account of the accused from being operated upon. Though we have laid down the law but so far as the present case is concerned the order impugned has already been given effect to and the accused has been operating upon his account and so we do not interfere with the same. At this stage it deserves to be noted that the Supreme Court considered a Division Bench decision of the Delhi High Court in the case of Swaran Sabharwal v. Commissioner of Police MANU DE 0066 1990: 1988 Cri.L.J. 241 the Court observed as under “6. We are not able to accept this argument. In the first place we are not quite sure whether monies deposited in a bank account can be "seized" by means of a prohibitory order as has been done in the present case under the provision of section 102. But assuming that a bank account is "property" within the meaning of the section it should be property "found under circumstances which create the CRM(M) No. 161 2021 CrlM No. 537 2021 suspicion of the commission of an offence" to justify under section 102. In other words it applies where a police officer comes across certain property in circumstances which create in his mind a suspicion that an offence has been committed. Thus in the cases cited by counsel action under section 102 was upheld where a public servant was found in possession of moneys in his bank account far in excess of his known source of income when a person was found in possession of a large quantity of small coins for sale in contravention of the defense of India Rules where a trader was found to have stored a large number of bags of rice in contravention of rules and orders and where a person was found standing on a public road with a bag containing several bundles of the currency notes. The position here is different. Here it is not the discovery of the property that has created the suspicion of an offence. There are no circumstances attended upon the bank account or its operation that have held the officer to that some offence has been committed somewhere. The discovery of the bank account hear is a sequel to the discovery of the commission of the offence. The police suspect that some of the proceeds realized by the sale of official secrets have been passed on to the petitioner by her husband. This we think is not sufficient to attract section 102 as it cannot be said that the bank account has been traced or discovered in circumstances which have made the police aware on the commission of an 7. We may further point out that no justification seems to exist for “seizing” the amounts in the bank account. All that the respondents seem to want to establish from the bank account is that some funds were transferred by the petitioner s husband to her. This can be proved at any time by comparison of the two account and since the entries in the accounts are always available no purpose seems to be served by restarting the operation of the bank account. Since as we point out below it is not the case of the moneys in the bank constitute case property" commission of the crimes with which Ram Swarup is charged the seizure of the monies by the issue of a prohibitory order cannot be upheld. the property i.e. 8. Again even if the provisions of section 102 are held applicable the respondents have not followed the requirements of the section. Reading that provision by adapting in to the case of seizure of a bank account the police officer should have done two things: he should have informed the concerned magistrate forthwith regarding the prohibitory order. He should have also given notice of the seizure to the petitioner and followed her to operate the bank account subject to her executing a bond undertaking to produce the amounts in court as and when required or to hold them subject to such orders as the court may make regarding the disposal of the same. This was not done. Even a copy of the prohibitory orders was not given to the petitioner. The police did not seek the directions of the Magistrate trying the offence. Not only that when the petitioner herself approached the Magistrate who was trying CRM(M) No. 161 2021 CrlM No. 537 2021 the petitioner s husband under the official Secrets Act her request to be allowed to operate the account was opposed by the police contending that the bank account was not "case property" and that the petitioner s remedies lay elsewhere than in the court of the Magistrate. The Magistrate accepted the plea of the police and dismissed the application of the petitioner and directed to seek remedy elsewhere before the appropriate authority. The petitioner having lost before the Magistrate had no other recourse except to file a writ petition praying for the setting aside of the prohibitory order.” 12. It may not be out of place to state that the Division Bench decision of the Delhi High Court referred to above has been the case of Paresha G. Shah and distinguished. The case of Paresha G. Shaharose from the proceedings under the Prevention of Money Laundering Act. 13. In B. Ranganathana learned Single Judge of the Madras High Court took the view that a case of disproportionate wealth could only be proved from the entries effected in the books of accounts so as to trace the past bank dealings of the accused and of his near relatives during the check period but not freezing the accounts unless the Investigating Officer is of the view that by permitting the accused or his relatives to continue to operate the accounts damage would be caused to the entries. 16. In B. Ranganathanthe court held as under “12. From the import of the Section 13 of the said Act barely dissected it is clear that Section 13(2) is the penal Section for the commission of an offence under Section 13(1)(e) which offers an opportunity for the public servant to satisfactorily account for either the pecuniary resources or property disproportionate to his known sources of income thereby meaning that in these types of cases of acquisition or being in possession of disproportionate wealth to the known sources of income the cases could only be registered on reasonable suspicion and could be proved subject to the opportunity for the accused to satisfactorily account for the same and therefore prima facie no case could be made out by the prosecution bluntly either on registering a case or even during the course of investigation since according to the warranting ingredients of the accused cannot be preliminarily held to have committed the offence as it could be in other cases arising out of the IPC or the other criminal acts or even from out of the Prevention of Corruption Act itself. Therefore the framers of law have been careful enough to impose a pre condition or a subjective clause to the effect that the commission of the offence by the accused could only be complete provided on a fair and reasonable opportunity being afforded to the public servant in spite of which if he fails to satisfactorily account for the pecuniary resources after the case has been put up by the prosecution but not on a case being registered on suspicion. Therefore on a case registered on reasonable suspicion of the accused being in possession of property disproportionate to his known sources of income the pecuniary resources of which he cannot satisfactorily the Section CRM(M) No. 161 2021 CrlM No. 537 2021 account for it is not correct to conclude that either the commission of offence is complete as it is in most of the other cases or could it be said that the Investigating Officer shall have all such freedom as he would have in other cases in the exercise of such powers pending 08. The basis made by the prosecution for seizure of the amount has reference to the recoverable amount from the accused son to the tune of Rs. 11.00 lakhs. The question is whether any recoverable amount from the accused son in a criminal investigation can be recovered from his old aged parents by seizing the amount on search from their bedroom. This question was put to the prosecution and from their stand they could not support the seizure of recoverable amount from the accused son from his parents on the strength of any provision of law. The respondent has also not justified the seizure with adherence to the procedure as the order of search made by the Special Judge Anti Corruption does not make any reference to the seizure of the amount from old aged parents therefore the seizure is without authority. The petitioners are father and mother of Sheikh Zubair Aslam who is not a public servant as submitted by the prosecution in the status report and on default the amount is being recovered from his parents by making search of their bedroom. The Hon’ble Supreme Court has framed the guidelines with regard to powers of the court in dealing with cases falling under section 451 of CrPC. With regard to valuable articles and currency notes the Hon’ble Supreme Court has held as under: “11. With regard to valuable articles such as golden or silver ornaments or articles studded with precious stones it is submitted that it is of no use to keep such articles in police custody for years till the trial is over. In our view this submission requires to be accepted. In such cases the should pass appropriate orders as contemplated under section 451 CrPC at the earliest. For this Purpose the material on record indicates that such articles belong to the complainant at whose CRM(M) No. 161 2021 CrlM No. 537 2021 house theft robbery or dacoity has taken place then seized articles be handed over to the complainant after: 1) preparing detailed proper panchnama of such articles 2) taking photographs of such articles and a bond that such articles would be produced if required at the time of trial and 3) after taking proper security. 13. For this purpose the court may follow the procedure of recording such evidence as it thinks necessary as provided under: Section 451 CrPC. The bond and security should be taken so as to prevent the evidence being lost altered or destroyed. The court should see that photographs of such articles are attested or countersigned by the complainant accused as well as by the person to whom the custody is handed over. Still however it would be the function of the court under section 451 CrPC to impose any other appropriate condition. In case where such articles are not handed over either too the complainant or to the person from whom such articles are seized or to its claimant then the court may direct that such articles be kept in bank lockers. Similarly if articles are required to be kept in police custody it would be open to the SHO after preparing proper panchnama to keep such articles in a bank locker. In any case articles should be produced before the Magistrate within a week of their seizure. If required the court may direct that such articles be handed back to the investigating officer for further investigation and identification. However in no set of circumstances the investigating officer should keep such articles in custody for a longer period for the purposes of investigation and identification. For currency notes similar procedure can be followed. However the Ld. Trial court while dealing with the application of the petitioners has wrongly appreciated the above law propounded by the Hon’ble Supreme Court in the above judgment. 8. In the case titled Wellworth Software Pvt. Ltd Vs CBI ACB Bengaluru decided on 4th of March 2001 the High court of Karnataka at Bengaluru has ordered the release of cash amount of Rs. 4798000 . Para 9 of the judgment of the High Court of Karnataka is reproduced as under: “Having regard to the documents produced by the petitioners explaining the source of the funds seized from their possession it has to be held that the petitioners are the rightful owners of the seized amount and are legally entitled for the interim custody of the seized cash. Even otherwise the CRM(M) No. 161 2021 CrlM No. 537 2021 interim release of the seized property does not preclude the respondent from investigating into the source of the said funds of the public servant. Petitioners are not accused of abetting the offence by the public servant. In the said circumstances there is no justification to retain the cash belonging to the petitioners. The Hon’ble Supreme Court in the case of Sunderbhai Ambalal Desai Vs State of Gujarat with C.M Mudaliar Vs State of Gujarat reported in 10 Supreme Court Cases 283 has laid down the guidelines for release of seized during investigation. In this regard the coordinate bench of this court in identical situation in Crl. RP. No. 636 2018 dated 30 8 2018 has allowed petition.” the properties 9. That Section 102 of the Criminal Procedure code deals with the power of police officer to seize certain property while as section 451 of the Cr.P.C deals with the power of the court to order for custody or disposal of the property pending trial. 09. The Court is conscious of the fact that the investigation is under process therefore as opined at the outset it is proper not to discuss the merit of investigation lest that may cause any prejudice to the investigating agency. Therefore the Court is only restricting its finding to the validity of the order impugned and the seizure of the amount. 10. On the strength of the pleadings as discussed above and the reference of law it is manifestly clear that no further purpose can be achieved by retaining the seized amount by the prosecution and to the understanding of the Court the purpose is solved after taking the details of the denominations of the seized amount and the claim made by the petitioners as owner of the allowed. In the fact circumstances of the case the Court has arrived to the conclusion that the case has merit therefore the petition deserves to be CRM(M) No. 161 2021 CrlM No. 537 2021 In the above background the petition is allowed and the order impugned passed by Special Judge Anti Corruption Kashmir Srinagar on 14th of May 2021 in the application titled Sheikh Mohammad Aslam & Anr vs UT of J&K through Superintendent of Police Crime Branch Srinagar Kashmir is set aside with direction to the Investigating Officer to release the seized amount of Rs. 9.00 lakhs in favour of the petitioners on their identification by the appearing counsel. The amount shall be released after taking proper security in the shape of undertaking from the petitioners to the satisfaction of Registrar Judicial of this Court to the extent of making available the amount in case the trial court directs for the same at the time of disposal of the case however the prosecution shall retain the details of the seized amount for purpose of finalizing the investigation and using the same before the Trial Court. 12. Disposed of alongwith connected CrlM(s). Ali Mohammad Magrey) Judge i. Whether order is speaking ii. Whether order is reportable Pronounced today on 14th of June 2021 in terms of Rule 138of Jammu and Kashmir High Court Rules 1999. Judge

Divorce recognized by custom in Hindu law can be upheld by the Court if it is not opposed to the public policy: High Court of Delhi

A Hindu marriage may now be dissolved either under section 13 of the Act or under any special enactment or in accordance with any custom applicable to the parties. This was held in the case of Prahlad Singh v. Seema, [MAT.APP. (F.C.) 45/2021 & CM APPLs], 10784-85/2021 by Hon’ble Justice Vipin Sanghi in the High Court of Delhi. The marriage of the appellant Mr. Prahlad Singh with the respondent, Ms. Seema was solemnized, as per Hindu rites and customs, and they have a daughter from this wedlock. The petitioner filed a complaint in the family court that he had been duped into the marriage by the respondent. He claimed that the respondent had concealed her previous marriage to one Mr. Praveen Kumar, with whom her relationship had deteriorated to such an extent that both of them had registered FIRs against the other. The appellant further claimed that the respondent, before getting married to him, had not obtained a divorce from the said Mr. Praveen Kumar, which implied that their marriage was void ab initio. The respondent submitted that she had never hidden her previous marriage from the respondent and that he knew of the same. She claimed that he had helped her obtain a customary divorce from Mr. Praveen Kumar; and that (ii) she had not committed any act of domestic violence against the family of the appellant and rather, it was her who had been subjected to the same. She even underwent a medical examination at the Lal Bahadur Shastri Hospital after one such violent incident, which she could prove by way of the MLC issued, and was eventually compelled to file a complaint against the appellant’s father under Section 354 IPC after he had tried to outrage her modesty. The counsel for the appellant, at the outset, submits that at the time of his marriage to the respondent, her marriage to Praveen Kumar was still subsisting, thereby rendering her marriage to the appellant a nullity. He further avers that the respondent had neither proved that she belongs to the Jaat community nor led any evidence to prove the custom of obtaining divorces without approaching the Court He, therefore, contends that the marriage of the respondent could be dissolved by the grant of decree of divorce under the Hindu Marriage Act, and, therefore, the respondent could not claim that her marriage with Mr. Pravin Kumar stood dissolved through the deed of dissolution

IN THE HIGH COURT OF DELHI AT NEW DELHI MAT.APP.45 2021 & CM APPLs. 10784 85 2021 SH. PRAHLAD SINGH Through: Mr. Paramjeet Singh Adv. Appellant Date of Decision: 19.03.2021 SMT. SEEMA @ VIDHYA Through: None. Respondent HON’BLE MR. JUSTICE VIPIN SANGHI HON BLE MS. JUSTICE REKHA PALLI REKHA PALLI JThe present appeal assails the judgment and order dated 20.05.2020 passed by the learned Additional Principal Judge Family Court Tis Hazari in HMA No. 261 2017 which had been preferred by the appellant seeking a decree of nullity declaring his marriage with the respondent as being null and The marriage of the appellant Mr. Prahlad Singh with the respondent Ms. Seema was solemnized as per Hindu rites and customs on 05.05.2009 in Delhi. They have a daughter from this wedlock. In 2017 the appellant petitioner instituted HMA No 261 2017 before the learned Family Court on the ground that he had been duped into the marriage MAT.APP.45 2021 by the respondent. He claimed that the respondent had concealed her previous marriage to one Mr. Praveen Kumar with whom her relationship had deteriorated to such an extent that both of them had registered FIRs against the other. The appellant further claimed that the respondent before getting married to him had not obtained a divorce from the said Mr. Praveen Kumar which implied that their marriage was void ab initio. Before the learned Family Court the respondent contended that she had never hidden her previous marriage from the respondent and that he knew of the same. She claimed that he had helped her obtain a customary divorce from Mr. Praveen Kumar and that she had not committed any act of domestic violence against the family of the appellant and rather it was her who had been subjected to the same. She even underwent a medical examination at the Lal Bahadur Shastri Hospital after one such violent incident which she could prove by way of the MLC issued and was eventually compelled to file a complaint against the appellant’s father under Section 354 IPC after he had tried to outrage her modesty. In the heels of this written statement the appellant filed a replication and then an application seeking a judgment on admissions under Order XII Rule 6 of the Civil Procedure Code. This application was dismissed by the learned Family Court and at the appellate stage by the learned Single Judge as also the learned Division Bench of this Court. However once pleadings were complete on 02 04.2019 the learned Family Court framed the following issues for the purpose of a final adjudication: MAT.APP.45 2021 1). Whether the respondent was having a spouse living at the time of his marriage with the petitioner as alleged in the petition 2). Whether this marriage between the petitioner and the respondent is liable to be declared null and void by a decree of nullity as prayed in the petition OPP 3). Whether the petitioner is entitled for the relief as prayed in the petition OPP 4). Relief Ultimately the impugned order came to be passed rejecting the appellant’s claim that as on the date of the marriage between the parties herein the marriage between the respondent and Mr. Pravin Kumar was still subsisting. The learned Family Court delved into the custom of dissolving marriages without moving a Court of law and instead approaching the concerned panchayat and held that the same was a recognised and widely prevalent custom amongst the Jaats of Jalandhar and other neighbouring districts. The learned Family Court observed that since both the appellant and the respondent belonged to the Jaat community in Uttar Pradesh which practiced the custom as well there was no question of penalising only the respondent for failing to approach the Court for a formal decree of divorce when the appellant himself had availed of the same custom for the purpose of dissolving his marriage with his previous wife. The relevant extracts of the impugned judgment which contain the reasoning adopted by the learned Family Court read as under: “27. I am of the opinion that in the facts of this case the judgements relied on behalf of the petitioner would not be MAT.APP.45 2021 attracted. In this case it is not in dispute that there is such a custom prevalent in the community to which the parties belong. The petitioner himself admittedly before his marriage to the respondent was married to one Ms. Mamta. The petitioner in his cross examination dated 04.02.2020 admitted that he had taken divorce from Ms. Mamta. The petitioner admitted that the said divorce between him and Ms. Mamta was not granted by any court and it was a Panchayati divorce. Thus there is sufficient material on record of this case to show that in the community to which the parties belong Panchayati divorce is a permissible mode of x x x 29. Further it is not in dispute that the parties had undertaken all marriage ceremonies in accordance with Hindu rites and customs. Before the disputes precipitated between them the parties lived together as husband and wife and were treated as such. They had a girl child from this wedlock. Parents of the petitioner were also treating the respondent as wife of the petitioner as would become clear from a copy of the document on the file whereby the respondent with the daughter was allowed to live on the II Floor of the premises belonging to the mother of the petitioner and a copy of the plaint of civil suit filed by the mother of the petitioner for eviction of the respondent from his premises. In these documents the respondent has been described as the wife of the petitioner. In such circumstances a strong presumption would arise that the respondent is the legally wedded wife of the petitioner and it was for the petitioner to plead and lead evidence to show the contrary. 35. It is the case of the petitioner that in this case he came to know about the subsistence of marriage between the respondent and Praveen Kumar only after filing the petition for divorce in the year 2013 and thus he withdrew that petition and filed the preent petition. Respondent has maintained that the petitioner and his family were aware of all facts and they were shown all relevant documents. She has also maintained that the petitioner and his father were actively involved in preparation of divorce papers of the respondent with Praveen Kumar and they had accompanied her at the time she went for notarization of that deed. She has also alleged that the Advocate who had prepared her own documents for divorce was the same person who had prepared the documents MAT.APP.45 2021 of divorce for the petitioner. The petitioner did not file the documents relating to his own divorce with Ms. Mamta by customary mode in this court even though it was specifically pointed out in the written statement filed by the respondent and questions were asked to the petitioner in his cross examination. The respondent had also filed an application seeking production of documents relating to divorce of the petitioner. Fact that both parties had taken divorce in similar manner and may be through the same Advocate would show that both parties were aware of all facts and believed that their marriages with their earlier spouses stood dissolved. Section 23(1)(a) of the Hindu Marriage Act stipulates that in any proceedings under this Act the court needs to be satisfied that the petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of relief. The petitioner has raised the plea of nullity of marriage only after matrimonial disputes developed between the parties and litigation started. Material on record to my mind shows that the petitioner had full knowledge of all relevant facts relating to marriage of the respondent with the respondent. In the event the petitioner desires to do so he would be required to file a petition for divorce in accordance with law. Fact that the petitioner had earlier filed a petition for divorce which he withdrew and then filed the present petition would not be sufficient to conclude that the petitioner was not aware about the alleged subsistence of marriage of respondent with Praveen Kumar.” Aggrieved by the aforesaid findings the present appeal has been filed. Assailing the impugned order learned counsel for the appellant at the outset submits that at the time of his marriage to the respondent her marriage to Praveen Kumar was still subsisting thereby rendering her marriage to the appellant a nullity. He further avers that the respondent had neither proved that she belongs to the Jaat community nor led any evidence to prove the custom of obtaining divorces without approaching the Court He therefore contends that the marriage of the respondent could be dissolved by the grant of decree of MAT.APP.45 2021 divorce under the Hindu Marriage Act and therefore the respondent could not claim that her marriage with Mr. Pravin Kumar stood dissolved through the deed of dissolution dated 06.01.2009. He thus contends that the respondent’s previous marriage is still subsisting and the marriage between the parties herein was void ab initio which was not appreciated by the learned Family Court. 8. We have heard learned counsel for the appellant and perused the record and are unable to find any infirmity in the decision of the learned Family Court. 9. While the appellant has contended that he did not know of the respondent’s earlier marriage this was denied by the respondent who claimed that rather it was the appellant who had been married earlier to one Ms. Mamta which position came to be established at the time of cross examination before the learned Family Court. The respondent contended that her former marriage with Mr. Praveen Kumar was like the earlier marriage of the appellant with Ms. Mamta dissolved through the customary marriage dissolution process practiced in the Jaat community to which they belonged. She even contended that the document of this customary divorce in her case was prepared by the same Advocate who had done it previously for the appellant and Ms. Mamta. It also remains a matter of record that the appellant had admitted before the learned Family Court that his family and he were closely involved in the mediation which the respondent had been ordered to have with her former husband at the Allahabad High Court Mediation Centre. 10. As it turns out this was a case where both the parties have admitted to having other marriages which predated their marriage to each other. They both stated to have dissolved their respective marriages through deeds of dissolution MAT.APP.45 2021 executed in the presence of the Panchayat rather than pursuing a formal decree of divorce through the Family Court. They claimed that this was customary for Jaats of Jalandhar and neighbouring districts. It appears that this type of customary divorce is not foreign to the Indian courts and has already been recognized and dealt with in numerous decisions of the Supreme Court and this Court it is also recognized and accepted under Section 29(2) of the Hindu Marriage Act which permits marriages to be dissolved in accordance with the custom governing the parties. This position was also considered by the learned Family Court which had explored the prevalent position of law by referring to the decisions of the Delhi High Court in Balwinder Singh Vs. Gurpal KaurAIR 1985 Delhi 14 and of the Supreme Court in Gurdit Singh Vs. Angrez KaurAIR 1968 SC 142 the relevant extracts from the impugned judgment in this regard read as under: “23. Dissolution of marriage by divorce was unknown to Hindu law. However in certain communities divorce was recognized by custom and the courts upheld such custom when it was not opposed to public policy. It was in this background that the social customs and usages which have on account of continuous and uniform observance over the years acquired force of law amongst certain communities have been expressly saved by Section 29(2) of the Hindu Marriage Act. A Hindu marriage may now be dissolved either under section 13 of the Act or under any special enactment or in accordance with any custom applicable to the parties.45 2021 community. This suggestion was denied by her. The respondent was not suggested as to which other community she belongs. The deed of dissolution of marriage dated 06.01.2009 records that the respondent belongs to Jaat community. I see no reason to disbelieve the respondent that she belongs to Jaat community. 25. Hon’ble Suprme Court in the case of Gurdit Singh vs. Angrez Kaur had recognized that among the Hindu Jaats of Jalandhar there is a custom by which the husband can dissolve his marriage with his wife without moving to a court of law. Subsequently in Balwinder Singh vs. Gurpal Kaur AIR 1985 Delhi 14 Hon’ble Delhi High Court held that such custom was prevalent not only among the Jaats of Jalandhar but among Jaats of various other neighboring districts. In this case the respondent has stated that she and the petitioner both belong to Jaat community residing at Uttar Pradesh.” 11. While the appellant has contended that the respondent is not entitled to obtain a divorce under such customary provisions he does not deny that the custom of obtaining divorce in Jaat community has been duly recognized by the Supreme Court viz. the Jaat community in Jalandhar and by this Court as regards the Jaats of Jalanadhar and various neighbouring districts. The appellant has also been unable to rebut the respondent’s plea that she like the appellant also belonged to the Jaat community which practiced this custom by adducing any material evidence before the learned Family Court or before us today. Moreover the fact that the respondent’s former husband Mr. Praveen Kumar has neither disputed their divorce nor claimed restitution of conjugal rights was taken into consideration as well by the learned Family Court. 12. Another factor that weighed with the learned Family Court was that though the marriage between the parties was solemnized in 2009 and they were blessed with a daughter the appellant had preferred the petition seeking a MAT.APP.45 2021 divorce only in 2015 after the passage of almost six years from the date of their marriage. We are inclined to agree with the learned Family Court that this delay in itself exposed the gaps in the appellant’s plea that he was neither aware of the respondent’s earlier marriage nor of her customary divorce from In these circumstances we find absolutely no infirmity in the impugned 14. The appeal along with the pending applications is dismissed with no her former husband. order as to costs. REKHA PALLI) VIPIN SANGHI) MARCH 19 2021 MAT.APP.45 2021

Court allows the revision petition in order to protect the accused from being falsely accused leading to miscarriage of justice: Karnataka High Court

The criminal revision petition is filed under section 397 ( speaks about calling for records to exercise powers of revision) with 401( High court’s power of revision) of CRPC by the Accused to set aside the judgement and order of conviction on 17/07/2019 by the principal civil judge and judicial magistrate first class and again the same judgement is confirmed by the Additional session judge , but it was allowed by High court of Karnataka through the learned bench led by the HON’BLE MR. JUSTICE V. SRISHANANDA in the case between chiranjeevi vs State of Karnataka (C.R.P. NO.1395/2021) on 20th December 2021 Brief facts of the case are that the sri Umesh, learned counsel representing Sri R.B.Deshpande, for the Revision Petitioners and Sri V.S. Vinayaka, learned High Court Government Pleader for respondent-State and perused the records. Accused presented before the honourable court challenging the judgement of the judicial magistrate first class and additional session judge to the conviction of the Accused. A Complaint was logged by the Complainant , contending that on 03.10.2011 at about 2.30 a.m., when the complainant while returning from his routine business that is milk vending and curd at various branches and by collecting the amount in the milk van bearing No.AP-03-Y-2307 near the land of one Narasimhappa on Venkatapura Gounipalli Road, accused Nos.1 to 3 came in Bajaj Discover motorcycle bearing No.AP-21-AH-5382 and intercepted the milk van and used the force and smeared the chilly powder into the eyes of the complainant and took away Rs.49,462/- from the custody of the complainant. The jurisdictional Police after registering the case, investigated the matter in detail and filed a charge sheet against the accused/Revision Petitioners for the offence punishable under Section 392 read with Section 34 IPC. The position of the accused persons were secured and arrested by the police and charge sheet was filed against them for the offences they have committed. Accused Nos.1 to 3 Pleaded not guilty and case against accused No.4 came to be bifurcated by filing split up charge sheet. Since the acused pleaded not guilty, the trial was held. In order to prove the case of the prosecution, Prosecution in all examined 12 witnesses including the Complainant, mahazer witnesses and investigating agency as prosecution witnesses from 1 to 12 and in all 17 documents were relied as Exs.P1 to 17. Prosecution also relied on the material objects namely knife, chilly powder, mobile telephone, Rs.7,000/- cash, china set mobile phone, mobile sim and cash of Rs.8,000/-, Rs.6,500/- and Rs.5,342/- cash bags as MOs.1 to 12. On conclusion of the prosecution evidence, accused statement as contemplated under Section 313Cr.P.C. was recorded, wherein the accused persons denied all the incriminatory circumstances. However, they did not offer their version to the incident by examining themselves or by placing written submission as is contemplated under section 313(5) Cr.PC. After hearing both the parties, the trail magistrate passed an order of conviction covicting an accused for the aforesaid offence and sentenced as refered to earlier. Being aggrieved by the order of trail magistrate , accused persons Preferred an appeal before the Sessions Cour. Learned Judge in the first appellate court after securing the records and hearing both the parties in detail and after re-appreciating the materials available on record, ultimately dismissed the appeal of the accused persons confirming the judgment and order of conviction and sentenced passed by the trial Magistrate by judgment Dated 8/10/2021. Being aggrieved by the order of session court, the accused Nos.1 to 3 have decided to go for revision petition with the following grounds: That conviction and sentence passed by he courts below are contrary to law, evidence On record and probabilities of the case; That courts below have not considered the facts and circumstances of the case in proper prospective; That judgments of courts below are illegal, arbitrary, capricious and opposed to Sound principles of law; That courts below have committed serious error in convicting the petitioners when The prosecution has failed to prove the guilt of the petitioners; etc. Reiterating the above grounds Sri Umesh learned counsel from the applent side contended that both the courts have not properly appreciated the materials available on record and falsely convicted the accused persons resulting in miscarriage of the justice and therefore, asked for allowing the revision petition. He also contended that since the accused persons are the first time offenders without any criminal antecedents, the trial Court and First appellate Court ought to have considered the grant of probation to the Revision. On the other hand, learned high court government pleader supported the impugned judgment contending that after registering the case police were able to apprehend accused Nos.1 to 3 and recovered whole cash which was stolen and the case bag which was in the custody of the complainant as on the date of incident and same has been marked before the trial Court and why would the police implant such huge cash only with an intention to get false conviction against the accused persons in the absence of any previous animosity and therefore, judgment of the trial Magistrate is based on sound and logical reasons and same has been properly reappreciated by the learned Judge in the first appellate Court in the light of the grounds raised in the appeal memorandum and thus, sought for dismissal of the revision petition. Insofar as alternate plea is concerned, if the accused persons shown any leniency, the same would send Wrong message to the Society at large and sentence ordered by the court must act as a deter to such perpetrators Of the crime and therefore, sought for dismissal of the revision petition in too. In view of the rival contentions and having regard to the scope of the Revisional jurisdiction, the following points would arise for consideration such as: “1.Whether the finding recorded by the trial magistrate that accused persons are guilty of the offence punishable under Section 392 read with Section 34 IPC and confirmed by first appellate court is suffering from patent factual defects, legal infirmity, perversity or error of Jurisdiction and thus, calls for interference? 2.Whether the sentence is excessive?” Regard to the scope of the Revisional jurisdiction, this Court reconsidered the materials available on record and is satisfied that none of grounds urged in the revision petition holds merit so as to interfere with the well reasoned order passed by the trial magistrate and confirmed by the First Appellate Court. The court relied on the precedent of Chandreshwar Sharma Vs State of Bihar Where the court released the accused released the accused on the ground that a bond of certain sum shall be deposited and to receive the same sentence when called upon to do so. In case of Gulzar vs state of MP same was held. After hearing both the council’s and records presented presented by their learned council before the honorable court, court allowed the criminal revision petition and directed the accused persons to execute a bond in a sum of Rs.50,000/- each with one surety for the likesum to the satisfaction of the trial Court, which shall be in force for a period of two years for their good behavior. Click here to read the judgement Judgement Reviewed by Sugam Anand Mishra  

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF DECEMBER 2021 THE HON BLE MR. JUSTICE V. SRISHANANDA CRIMINAL REVISION PETITION NO.1395 2021 1 . CHIRANJEEVI S O RAMAKRISHNA AGED ABOUT 29 YEARS OCC : LABOURER R O CHANNAKESHAVAPURAM YARAGUNTLU DHARMAVARAM ANANTHAPURA ANDRA PRADESH 515 671 2 . G. ISAK S O GURUVAYYA AGED ABOUT 33 YEARS OCC LABOURER R O RAVALACHURU DHARMAVARAM ANANTHAPURA ANDRA PRADESH 515671 3 . P RAJASHEKAR S O VENKATESH AGED ABOUT 34 YEARS OCC LABOURER R O RAJENDRANAGARA DHARMAVARM TOWN ANANTHAPURA ANDRA PRADESH 515671 BY SRI UMESH FOR SRI R B DESHPANDE ADVOCATES) THE STATE OF KARNATAKA BY PAVAGADA POLICE STAION PAVAGADA CIRCLE TUMKUR DISTRICT 561202 REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDINGS BENGALURU 560001) BY SRI V.S.VINAYAKA HCGP) THIS CRL.RP IS FILED U S.397 R W 401 CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DATED 17.07.2019 PASSED BY THE PRINCIPAL CIVIL JUDGE AND JMFC PAVAGADA IN C.C.NO.429 2011 CONFIRMED BY THE JUDGMENT AND ORDER DATED 08.10.2021 PASSED BY IV ADDITIONAL SESSIONS JUDGE TUMAKURU SITTING AT MADHUGIRI IN CRL.A.NO.5014 2019 AND ACQUIT THE PETITIONER OF THE CHARGES LEVELED AGAINST THEM. THIS CRIMINAL REVISION PETITION COMING ON FOR ADMISSION THIS DAY THE COURT MADE THE FOLLOWING: Though this matter is listed for admission today with the consent of both the parties the matter is taken up for final disposal. Heard Sri Umesh learned counsel representing Sri R.B.Deshpande for the Revision Petitioners and Sri V.S. Vinayaka learned High Court Government Pleader for respondent State and perused the records. in revision before this Court the order of conviction passed in CC No.429 2011 confirmed in Criminal Appeal No.5014 2019 whereby the order of conviction convicting the accused for the offence punishable under Section 392 read with Section 34 IPC and sentenced as under: "ಆ(cid:2)ೋ(cid:6) ಸಂ(cid:9)ೆ(cid:10) ೧ !"ಾಹ#(cid:27)ಾದ ಅಪ(cid:2)ಾಧ&ೆ’ 2 ವಷ#ಗಳ &ಾಲ &ಾ(cid:2)ಾ(cid:27)ಾಸ ಮತು ತ0ಾ ರೂ.5 000 ದಂಡªÀನು2 34ಸ0ಾ56ೆ. ಆ(cid:2)ೋ(cid:6)ತರು ದಂಡವ£ÀÄß 7ಾವ(cid:19)ಸಲು 3ಫಲ(cid:27)ಾದ(cid:31) ಆ(cid:2)ೋ(cid:6)ತರು. 9ಾಲು’ ದಂಡ ಪ> >@ಾ ಸಂ(cid:22)(cid:23)ೆ ಅ(cid:30)ಯ(cid:31) ಈ ಪ>ಕಣದ ಸಂಗ(cid:19) 3ದ(cid:10)Cಾನಗಳ£ÀÄß ಗಮನದ(cid:31)9ೊಂದ ವ(cid:10) @ಾ5ದು= ಅªÀgÀÄ ಪ(cid:12)Eಾರ ಹಣವನು2 ಪFೆಯಲು ಅಹ#(cid:2)ಾ5ರು(cid:23)ಾಪ(cid:12)Eಾರದ Hತ ರೂ.10 000 ಹಣವನು2 ಆ(cid:2)ೋ(cid:6)ತರ 7ಾವ(cid:19)Dದ ದಂಡದ ಹಣದ(cid:31) Gೕಡಲು ಆ6ೇ!ಸ0ಾ5ರುತ 6ೆ. 3. ಆ(cid:2)ೋ(cid:6) ಸಂ(cid:9)ೆ(cid:10): ೧ ಈ(cid:16)ಾಗ0ೇ 3JಾರKಾ4ೕ£À ಅಪ(cid:2)ಾ4ಗLಾ5 ಇದ= ಭಂO&ಾ9ೆಯ(cid:31) ದ= ಾ0ಾಅ4ಯನು2 ಕಲಂ 428 ದಂಡ ಪ> >@ಾ ಸಂ(cid:22)vÉ ಅ(cid:30)ಯ(cid:31) ವPಾವಟುR Cಾಡಲು ಆ6ೇ!ಸ0ಾ56ೆ." Brief facts of the case are as under: A complaint came to be lodged contending that on 03.10.2011 at about 2.30 a.m. when the complainant while returning from his routine business i.e. milk vending and curd at various branches and by collecting the amount in the milk van bearing No.AP 03 Y 2307 near the land of one Narasimhappa on Venkatapura Gounipalli Road accused Nos.1 to 3 came in Bajaj Discover motorcycle bearing No.AP 21 AH 5382 and intercepted the milk van and used the force and smeared the chilly powder into the eyes of the complainant and took away Rs.49 462 from the custody of the complainant. The jurisdictional Police after registering the case investigated the matter in detail and filed a charge sheet against the accused Revision Petitioners for the offence punishable under Section 392 read with Section 34 IPC. The presence of the accused persons were secured and charges were framed. Accused Nos.1 to 3 pleaded not guilty and case against accused No.4 came to be bifurcated by filing split up charge sheet. Since the accused pleaded not guilty the trial was held. In order to prove the case of the prosecution prosecution in all examined 12 witnesses including the complainant mahazer witnesses and investigating agency as PWs.1 to 12 and in all 17 documents were relied as Exs.P1 to 17. Prosecution also relied on the material objects namely knife chilly powder mobile telephone Rs.7 000 cash China Set mobile phone mobile sim and cash of Rs.8 000 Rs.6 500 and Rs.5 342 cash bags as MOs.1 to 12. On conclusion of the prosecution evidence accused statement as contemplated under Section 313 Cr.P.C. was recorded wherein the accused persons denied all the incriminatory circumstances. However they did not offer their version to the incident by examining themselves or by placing written submission as is contemplated under Section 313(5) Cr.PC. Thereafter the trial Magistrate heard the parties in detail and passed an order of conviction convicting the accused persons for the aforesaid offence and sentenced as referred to supra. Being aggrieved by the same accused persons preferred an appeal before the Sessions Court in Criminal Appeal No.5014 2019. Learned Judge in the First Appellate Court after securing the records and hearing the parties in detail and after re appreciating the materials available on record ultimately dismissed the appeal of the accused persons confirming the judgment and order of conviction and sentenced passed by the trial Magistrate by judgment dated 8.10.2021. 10. Being aggrieved by the same the accused Nos.1 to 3 have preferred this Revision Petition with the following grounds: 1. That conviction and sentence passed by the courts below are contrary to law evidence on record and probabilities of the case. 2. That courts below have not considered the facts and circumstances of the case in proper prospective. 3. That judgments of courts below are illegal arbitrary capricious and opposed to sound principles of law. 4. That courts below have committed serious error in convicting the petitioners when the prosecution has failed to prove the guilt of the petitioners. 5. That the courts below ought to have taken into consideration that the prosecution has miserably failed to prove the case beyond all reasonable doubt. 6. That courts below have committed serious error in relying on interested testimony of Pw s 1 4 to 6 9 to 12 when their evidence is not corroborated the contents complaint and their statement before police. 7. That courts below have committed serious error in relying on the evidence of Pw s 1 4 to 6 9 to 12 when their evidence is full of material omissions contradictions not cogent and reliable. 8. That courts below have acquitted the petitioners on the ground that evidence of PW1 complainant does not reveals about the test identification parade held as the prosecution projected which goes to root of the case. Under these circumstances benefit of doubt ought to have been extended to the petitioners by the courts below. 9. That courts below have committed serious error in relying on official witnesses wherein prosecution relied. PW2 panch Ex.P.2 spot mahazar has not supported the case of the prosecution as the same was prepared in the police station. The fact that PW4 PW5 are the panch witnesses official witnesses acted on say of PW8 Tahasildar which goes to root of the prosecution case. Further petitioners accused No.1 to 3 are implicated upon their voluntary statement. Thus all the facts and circumstances leads that recovery is not proved by the prosecution by cogent and reliable evidence and thus benefit of doubt ought to have been extended to the petitioners in the alleged case of the prosecution. 10. That courts below ought to have acquitted the Petitioners on the ground that there is no evidence to connect the petitioners with alleged incident. PW5 6 are interested witness as they are official witness Further P.W 3 and 11 have not supported the case of the 11. That the courts below ought to have acquitted the petitioners accused No.1 to 3 on the ground that prosecution has suppressed very genesis of the incident as courts below have acquitted the petitioners for the offences under Section 120(B) IPC which goes to root of the prosecution case. Thus benefit of doubt ought to have been extended to the petitioners in the alleged case of the prosecution. 12. That courts below have committed serious error in convicting the petitioners for the offence under Section 392 r w 34 IPC when prosecution has failed to adduce any cogent and reliable evidence in that regard. 13. That Courts below ought to have accepted the defence of the petitioners and acquitted them. 14. That entire approach of the case by the courts below is erroneous misconceived and the came has resulted in miscarriage of justice. 15. That courts below have committed serious error in not extending the benefit of provisions of Section 3 and 4 of the probation of offenders Act to the petitioners. The sentence imposed is too harsh and disproportionate." Reiterating the above grounds Sri Umesh learned counsel representing Sri.R.B.Deshpande contended that both the Courts have not properly appreciated the materials available on record and falsely convicted the accused persons resulting in miscarriage of the justice and therefore sought for allowing the Revision Petition. Alternatively he contended that since the accused persons time offenders without any criminal antecedents the trial Court and First Appellate Court ought to have considered the grant of probation to the Revision Petitioners and prayed for allowing the Revision Petition to that extent. 11. Per contra learned High Court Government Pleader supported the impugned judgment contending that after registering the case police were able to apprehend accused Nos.1 to 3 and recovered cash of Rs.7 000 Rs.8 000 Rs.6 500 and Rs.5 342 and the cash bag which was in the custody of the complainant as on the date of incident and same has been marked before the trial Court and why would the police implant such huge cash only with an intention to get false conviction against the accused persons in the absence of any previous animosity or enmity and therefore judgment of the trial Magistrate is based on sound and logical reasons and same has been properly reappreciated by the learned Judge in the First Appellate Court in the light of the grounds raised in the appeal memorandum and thus sought for dismissal of the Revision Petition. Insofar as alternate plea is concerned if the accused persons shown any leniency the same would send wrong message to the Society at large and sentence ordered by the Court must act as a deter such perpetrators of the crime and therefore sought for dismissal of the Revision Petition in toto. In view of the rival contentions and having regard to the scope of the Revisional jurisdiction the following points would arise for consideration: 1.Whether the finding recorded by the trial Magistrate that accused persons are guilty of the offence punishable under Section 392 read with Section 34 IPC and confirmed by First Appellate Court is suffering from patent factual defects legal infirmity perversity or error of jurisdiction and thus calls for interference 2. Whether the sentence is excessive " In the case on hand admittedly the incident has taken place in the early hours on 03.10.2011 when the complainant was returning from his routine business of milk vending and collection of cash. At that juncture the accused persons came on the motorcycle and intercepted the milk van and snatched away the cash bag from the custody of the complainant after throwing the chilly powder. The Police after registering the case investigated the matter and apprehended the accused persons and test identification parade was conducted by the Executive Magistrate i.e. Tahsildar. The Tahsildar is examined before the Court. Admittedly the complainant and the Tahsildar did not nurture any previous animosity or enmity against the accused persons so as to falsely implicate the Revision Petitioners in the case. Mere panch witness turning hostile to the case of the prosecution would not cause serious dent to the case of the prosecution in a matter of this nature. Further cash of Rs.7 000 Rs.8 000 Rs.6 500 and Rs.5 342 and cash bag were recovered by the police at the instance of voluntary statement given by the accused persons which was marked as MO.4 MO.8 MOs.10 to 12. While recording the accused statement accused persons did not offer any proper explanation either by examining themselves or by placing written submission as is contemplated under Section 313(5) of Cr.P.C. It is not the case of the accused either that they have been picked up from their house and on account of previous ill will between the complainant and accused they have been falsely implicated in the case. Under such circumstances in the absence of any contra evidence placed by the accused trial Magistrate came to the right conclusion that accused persons are responsible for the offence alleged against them and prosecution is successful in proving the charges leveled against the accused beyond all reasonable doubt by placing cogent and convincing reasons. 15. Learned Judge in the First Appellate Court in the light of the grounds urged in the appeal Memorandum reappreciated the materials available on record and rightly concluded that the judgment and order of conviction passed by the trial Magistrate is based on sound and logical reasons and dismissed the appeal. 16. Having regard to the scope of the Revisional jurisdiction this Court reconsidered the materials available on record and is satisfied that none of grounds urged in the Revision Petition holds merit so as to interfere with the well reasoned order passed by the trial Magistrate and confirmed by the First Appellate Court. Accordingly point No.1 is answered in the negative. Insofar as sentence is concerned admittedly the Revision Petitioners are the first time offenders as is confirmed by the learned High Court Government Pleader. Under such circumstances following the dictums of the Hon’ble Apex Court: i. In the case of Chandreshwar Sharma v. State of Bihar reported in 9 SCC 245 at paragraph No.3 it is held as under: “3. The appellant herein was convicted under Sections 379 and 411 I.P.C. and was sentenced to rigorous imprisonment for one year as 3.5 Kg. of non ferrous metal was recovered from his possession. On an appeal being filed the conviction under Section 379 was affirmed. The appellant carried the matter in revision but the revision also stood dismissed. All along the case of the appellant was that the recovery from the tiffin carrier kept on the cycle would not tantamount to recovery from the possession of the appellant and this contention has been negative and rightly so. When the matter was listed before this Court a limited notice was issued as to why the provisions of Section 360 of the Criminal Procedure Code should not be made applicable Pursuance to the said notice Mr. Singh the learned standing counsel for the State of Bihar has entered appearance. From the perusal of the judgment of the learned Magistrate as well as the Court of Appeal and that of the High Court it transpires that none of the forums below had considered the question of applicability of Section 360 of the Cr.P.C. Section 361 and Section 360 of the Code on being read together would indicate that in any case where the Court could have dealt with an accused under Section 360 of the Code and yet does not want to grant the benefit of the said provision then it shall record in its judgment the specific reasons for not having done so. This has apparently not been done inasmuch as the Court overlooked the provisions of Sections 360 and 361 of the CrPC. As such the mandatory duty cast on the Magistrate has not been performed. Looking to the facts and circumstances of the present case we see no reasons not to apply the provisions of Section 360 of the Cr.P.C. We accordingly while maintain the conviction of the appellant direct that he will be dealt with under section 360 and as such we direct that the appellant be released on probation of good conduct instead of sentencing him and he should enter into a bond with one surety to appear and receive the sentence when called upon during the period of one year for the purpose in question. The bond for a year shall be executed before the learned Chief Judicial Magistrate Ranchi within 3 weeks from today. The appeal is disposed of accordingly.” ii. In the case of Gulzar v. State of M.P reported in 2007) 1 SCC 619 it has been held as under: 12. Section 360 of the Code relates only to persons not under 21 years of age convicted for an offence punishable with fine only or with imprisonment for a term of seven years or less to any person under 21 years of age or any woman convicted of an offence not punishable with sentence of death or imprisonment for life. The scope of Section 4 of the P.O. Act is much wider. It applies to any person found guilty of having committed an offence not punishable with death or imprisonment for life. Section 360 of the Code does not provide for any role for Probation Officers in assisting the courts in relation to supervision and other matters while the PO Act does make such a provision. While Section 12 of the PO Act states that the person found guilty of an offence and dealt with under Section 3 or 4 of the PO Act shall not suffer disqualification if any attached to conviction of an offence under any law the Code does not contain parallel provision. Two statutes with such significant differences could not be intended to co exist at the same time in the same area. Such co existence would to anomalous results. The intention to retain the provisions of Section 360 of the Code and the provisions of the PO Act as applicable at the same time in a given area cannot be gathered from the provisions of Section 360 or any other provision of the Code. Therefore by virtue of Section 8(1) of the General Clauses Act where the provisions of the Act have been brought into force the provisions of Section 360 of the Code are wholly inapplicable". The trial Magistrate is bound to consider the grant of probation. In the facts and circumstances of the case and in the absence of any criminal antecedents to the Revision Petitioners this Court is of the considered opinion that accused persons are entitled for grant of probation by directing them to execute a bond in a sum of Rs.50 000 with one surety for the likesum to the satisfaction of the Trial Court for their good behavior which shall be in force for a period of 2 years and ordered to pay fine of Rs.50 000 each inclusive of the amount already imposed by the trial Magistrate ends of justice would be met. Accordingly point No.2 is answered and following order is 1. Criminal Revision Petition is allowed in part. 2. While maintaining the conviction of the accused persons for the offence punishable under Section 392 IPC the accused persons are directed to execute a bond in a sum of Rs.50 000 each with one surety for the likesum to the satisfaction of the trial Court which shall be in force for a period of two years for their good behavior and ordered to pay fine of Rs.50 000 each inclusive of the amount already imposed by the trial Magistrate and confirmed by the First Appellate Court for the offence punishable under Section 392 read with Section 34 IPC. 3. Time is granted for the accused persons to pay the fine amount and to execute bond till 31.01.2022. 4. If there is any violation of the bond conditions or non payment of fine the order of the trial Magistrate automatically stands restored. Office is directed to return the trial Court records with a copy of this order forthwith. Sd JUDGE

In the absence of any agreement between the parties, the sole arbitrator has the absolute authority to decide on whether to allow evidence in a particular case or not: Delhi High Court

In the absence of any agreement between the parties, the sole arbitrator has the absolute authority to decide on whether to allow evidence in a particular case or to proceed with the adjudication of the matter on the basis of documents and other materials as held by the High Court of Delhi through the learned bench led by Justice Amit Bansal in the case of Telecommunication Consultants India Limited v. B. R. Sukale Construction (CM(M) 958/2021) Brief facts of the case are that the present petitions filed under Article 227 of the Constitution of India impugn the order/direction dated 7th October, 2021 and email dated 12th October, 2021 of the sole arbitrator, issued in two separate arbitration proceedings between the same parties. Vide the impugned order/direction dated 7th October, 2021, the sole arbitrator has observed as “ It is decided that no further evidence by way of witnesses will be held for the time being. Proceedings of the case will begin straightaway by arguments by both claimant and respondents. This was considered appropriate for curtailing delay and all also dispute being of contractual/tender nature and all issues are communicated by parties in writing which have already been filed by both parties and taken on record.” The counsel for the petitioner submits that after the order was passed by the arbitrator in both the arbitrations, a communication was sent by the counsel for the petitioner to the arbitrator stating that the petitioner be allowed to lead evidence in the matter. The said request on behalf of the petitioner was rejected by the arbitrator vide the impugned email dated 12th October, 2021. The counsel states that the aforesaid directions passed by the arbitrator are not tenable as the matter requires evidence to be led for proper adjudication of the arbitrations. The counsel appearing on behalf of the respondent on advance notice submits that the arbitrator, who is not a legally trained person but a retired Chief Engineer of Bharat Sanchar Nigam Limited, has taken a considered decision that no evidence by way of witnesses shall be held for the time being and he shall straightaway proceed with arguments of both the claimant and the respondent in order to curtail delay; as per Sections 19 and 24 of the Arbitration Act, failing any agreement existing between the parties, the arbitrator is free to consider the proceedings in the manner it considers appropriate; (iii) it is in the sole discretion of the arbitrator to decide whether to take oral evidence in a case or straightaway decide the matter on the basis of documents and other materials. After hearing the arguments by the learned counsel for the respective parties, the Hon’ble Court held, “In the present cases, the sole arbitrator having decided that the matter can be adjudicated on the basis of the documents on record, has held that no evidence by way of witnesses/oral evidence is required for the time being. No fault can be found in the decision of the arbitrator in this regard. Since no exceptional circumstances or exceptional rarity have been demonstrated/made out in the petitions or during the hearing and given the stage at which the arbitration proceedings are, there is no occasion to warrant the exercise of jurisdiction by this Court under Article 227 of the Constitution of India. In view of the above, there is no merit in the present petitions.”

CM(M) 958 2021 and CM No.959 2021 AMIT BANSAL J.VIA VIDEO CONFERENCING] HON BLE MR. JUSTICE AMIT BANSAL B. R. SUKALE CONSTRUCTION Through Mr. Ankur Gupta Advocate. Respondent Agarwal and Mr. Akshat Goel Through Mr. Amit Meharia Mr. Abinash Petitioner CONSULTANTS INDIA LIMITED TELECOMMUNICATION CM(M) 959 2021 B. R. SUKALE CONSTRUCTION Through Mr. Ankur Gupta Advocate. Respondent Agarwal and Mr. Akshat Goel Through Mr. Amit Meharia Mr. Abinash Petitioner CONSULTANTS INDIA LIMITED TELECOMMUNICATION CM(M) 958 2021 Date of decision: 28th October 2021 IN THE HIGH COURT OF DELHI AT NEW DELHI Signed By:ARUNAKANWARSigning Date:30.10.202122:34:33Signature Not Verified CM(M) 958 2021 and CM No.959 2021 impugned email dated 12th October 2021. said request on behalf of the petitioner was rejected by the arbitrator vide the stating that the petitioner be allowed to lead evidence in the matter. The communication was sent by the counsel for the petitioner to the arbitrator 7th October 2021 was passed by the arbitrator in both the arbitrations a The counsel for the petitioner submits that after the order direction of have already been filed by both parties and taken on record.” and all issues are communicated by parties in writing which delay and all also dispute being of contractual tender nature respondents. This was considered appropriate for curtailing begin straightaway by arguments by both claimant and will be held for the time being. Proceedings of the case will It is decided that no further evidence by way of witnesses arbitrator has observed as under: Vide the impugned order direction dated 7th October 2021 the sole proceedings between the same parties. 12th October 2021 of the sole arbitrator issued in two separate arbitration meeting dated 7th October 2021) dated 7th October 2021 and email dated India impugn the order direction 959 2021 and CM No.38682 2021958 2021 and CM No.38680 2021and The applications are disposed of. Allowed subject to all just exceptions. CM No.38683 2021in CM(M) 959 2020. CM No.38681 2021in CM(M) 958 2021 and Signed By:ARUNAKANWARSigning Date:30.10.202122:34:33Signature Not Verified CM(M) 958 2021 and CM No.959 2021 claimant and the respondent in order to curtail delay as per Sections 19 the time being and he shall straightaway proceed with arguments of both the considered decision that no evidence by way of witnesses shall be held for retired Chief Engineer of Bharat Sanchar Nigam Limited has taken a submits that the arbitrator who is not a legally trained person but a The counsel appearing on behalf of the respondent on advance notice of evidence. the parties the arbitral tribunal has to hold oral hearings for the presentation proviso to Section 24 of the Arbitration Act unless otherwise agreed to by given the opportunity to the petitioner to lead evidence andas per the with regard to the dispensation of oral evidence the arbitrator ought to have ‘Arbitration Act’) since there has been no agreement between the parties Arbitration and Conciliation Act 1996 as per Sections 19 and 24of the and therefore the arbitrator should have allowed the parties to lead oral Arbitration Act that are required to be disposed of in an expeditious manner these are not fast track arbitrations as envisaged under Section 29B of the same would have to be proved by the petitioner by leading evidence have been denied. In view of the denial of the documents as aforesaid the by the respondent herein the documents filed on behalf of the petitioner of the petition being the ‘Affidavit of Admission Denial of Documents’ filed The counsel for the petitioner submits that as per Annexure P 12 requires evidence to be led for proper adjudication of the arbitrations. aforesaid directions passed by the arbitrator are not tenable as the matter The counsel appearing on behalf of the petitioner states that the Signed By:ARUNAKANWARSigning Date:30.10.202122:34:33Signature Not Verified CM(M) 958 2021 and CM No.959 2021 present his case. with equality and each party shall be given a full opportunity to “18. Equal treatment of parties.—The parties shall be treated Arbitration Act the same are set out below for ease of reference: 10. Since both parties have placed reliance on various provisions of the I have heard the rival contentions of the parties. April 2021]. PetitionNo. 6171 2021 preferred whereagainst was dismissed on 27th Kumar Bhalotia and Others. 2021 SCC OnLine 3708 there is limited scope of interference October 2021 and the remaining final arguments are scheduled from 19th cases the hearings in the cases have already been held on 20th and 22nd sole arbitrator has rightly observed that no oral evidence is required in these iv) taking into account the nature of the dispute between the parties the No.370 2014 preferred whereagainst was dismissed on 1st September 2014] Bharat Heavy Electrical Ltd. 2014 SCC OnLine Del 3407 reliance is placed on the judgment of this Court in Silor Associates SA Vs. matter on the basis of documents and other materials and in this regard decide whether to take oral evidence in a case or straightaway decide the considers appropriate it is in the sole discretion of the arbitrator to parties the arbitrator is free to consider the proceedings in the manner it and 24 of the Arbitration Act failing any agreement existing between the Signed By:ARUNAKANWARSigning Date:30.10.202122:34:33Signature Not Verified CM(M) 958 2021 and CM No.959 2021 adjournment without any sufficient cause. impose costs including exemplary costs on the party seeking adjournments unless sufficient cause is made out and may for oral argument on day to day basis and not grant any possible hold oral hearings for the presentation of evidence or Provided further that the arbitral tribunal shall as far as be held. party unless the parties have agreed that no oral hearing shall an appropriate stage of the proceedings on a request by a Provided that the arbitral tribunal shall hold oral hearings at materials: shall be conducted on the basis of documents and other of evidence or for oral argument or whether the proceedings shall decide whether to hold oral hearings for the presentation 1) Unless otherwise agreed by the parties the arbitral tribunal 24. Hearings and written proceedings.— materiality and weight of any evidence. includes the power to determine the admissibility relevance 4) The power of the arbitral tribunal under sub section proceedings in the manner it considers appropriate. arbitral tribunal may subject to this Part conduct the 3) Failing any agreement referred to in sub section the its proceedings. procedure to be followed by the arbitral tribunal in conducting 2) Subject to this Part the parties are free to agree on the 72). Procedure 1908or the Indian Evidence Act 1872 1) The arbitral tribunal shall not be bound by the Code of Civil 19. Determination of rules of procedure.— Signed By:ARUNAKANWARSigning Date:30.10.202122:34:33Signature Not Verified CM(M) 958 2021 and CM No.959 2021 to day basis. required it would hold hearings for presentation of evidence on a day In the event that the Arbitral Tribunal decides that oral evidence is oral evidence is required or not. conducted on the basis of documents and other materials or whether Tribunal has the power to decide whether proceedings shall be v) Unless it has been otherwise agreed to by the parties the Arbitral relevance materiality and the weight of any evidence. iv) The Arbitral Tribunal has the power to determine the admissibility may conduct the proceedings in the manner it considers appropriate. If there is no agreement between the parties the Arbitral Tribunal Arbitral Tribunal in conducting its proceedings. ii) Parties are free to agree on the procedure to be followed by the the Code of Civil Procedure 1908 or the Indian Evidence Act 1872. The Arbitral Tribunal is not bound by the procedure laid down under provisions of the Arbitration Act is summarised below: 11. The legal position that emerges from a reading of the aforesaid making its decision shall be communicated to the parties.” evidentiary document on which the arbitral tribunal may rely in be communicated to the other party and any expert report or or applications made to the arbitral tribunal by one party shall 3) All statements documents or other information supplied to purposes of inspection of documents goods or other property. hearing and of any meeting of the arbitral tribunal for the 2) The parties shall be given sufficient advance notice of any Signed By:ARUNAKANWARSigning Date:30.10.202122:34:33Signature Not Verified CM(M) 958 2021 and CM No.959 2021 Tribunal may determine. The aforesaid provision has the effect produce documents exhibits or other evidence as the Arbitral of jurisdiction power in the Tribunal to require the parties to 19. There is nothing in the Act to contra indicate the existence 25 & 26 of the Act or any of them. the rights of the parties under Sections 13 16 17 22 23 24 to be evolved by the Tribunal cannot be such that it curtails opportunity to present its casethe Arbitral Tribunal of its proceedings. Section 19(3) states that “failing any procedure to be followed by the Arbitral Tribunal in conduct present case the parties have not agreed on any specific the Arbitral Tribunal in conducting its proceedings. In the the parties are free to agree on the procedure to be followed by 18. Section 19(2) states that subject to the provisions of Part I CPC) or the Evidence Act 1872or the Evidence Act 1872(1 of Arbitral Tribunal shall not be bound by the Code of Civil “17. Section 19(1) of the Act inter alia provides that “The this Court in Silor Associates SA wherein it has been observed as 12. The scope of the aforesaid provisions have been duly considered by Signed By:ARUNAKANWARSigning Date:30.10.202122:34:33Signature Not Verified CM(M) 958 2021 and CM No.959 2021 of the arbitrator in this regard. evidence is required for the time being. No fault can be found in the decision the documents on record has held that no evidence by way of witnesses oral arbitrator having decided that the matter can be adjudicated on the basis of basis of documents and other materials. In the present cases the sole in a particular case or to proceed with the adjudication of the matter on the arbitrator has the absolute authority to decide on whether to allow evidence proceedings. In the absence of any agreement between the parties the sole parties with regard to the procedure for carrying out the arbitration 13. Admittedly in the present petitions there is no agreement between the consensually under Section 19(2).” the parties have themselves not evolved the procedure parties. It is for the Tribunal to devise its own procedure if the proceedings need not be evolved by consensus of the 20. The procedure that the Tribunal may adopt for conducting courts — which are governed by the CPC and the Evidence proceedings and cut the procedural wrangles witnessed in the matter of conduct of its proceedings so as to expedite the be vest the Arbitral Tribunal with autonomy and flexibility in fair manner. On the contrary the legislative intent appears to conduct of the arbitration proceedings in a transparent and power to regulate its procedure for effective and expeditious 19 of the Act is not to denude the Arbitral Tribunal of its CPC) and the Evidence Act. The scheme contained in Section which is bound by the rigour of the Code of Civil Procedure arbitration proceedings than that exercised by a civil court — matter of regulating its procedure for conduct of the of vesting the Tribunal with much greater autonomy in the Signed By:ARUNAKANWARSigning Date:30.10.202122:34:33Signature Not Verified CM(M) 958 2021 and CM No.959 2021 said documents at the stage of final hearing. that the arbitrator cannot consider the admissibility and the materiality of the if the said documents have been denied by the respondent it does not mean respondent has denied the documents filed on behalf of the petitioner even As regards the objection of the counsel for the petitioner that the specified under Section 29A of the Arbitration Act. completion of pleadings for making an arbitral award has been statutorily Furthermore it may be noted that a time limit of 12 months from the date of that the arbitration need not be decided in an expeditious manner. arbitration is not being conducted in the fast track procedure does not mean expeditious disposal of all arbitration proceedings. Merely because the of the Arbitration Act as amended from time to time is to ensure early and dispense with oral evidence for early disposal of the dispute. The mandate under Section 29B of the Arbitration Act there was no requirement to that since the present arbitrations are not fast track arbitrations as envisaged 15. There is no merit in the submission of the counsel for the petitioner hearing procedurally mandatory. Arbitration Act or as making the presentation of evidence through oral discretion of the arbitral tribunal as provided under Section 24(1) of the provisos to the main provision cannot be read as taking way the absolute decide whether to hold oral hearings for the presentation of evidence. The of the Arbitration Act which states that the arbitral tribunal shall inter alia provisos have be read in context of the main provision being Section 24(1) provisos to Section 24(1) of the Arbitration Act is totally misplaced. The 14. Furthermore the reliance of the counsel for the petitioner on the Signed By:ARUNAKANWARSigning Date:30.10.202122:34:33Signature Not Verified CM(M) 958 2021 and CM No.959 2021 there is bad faith which is shown ix) The power should be exercised in exceptional rarity or if 226 227 viii) It is prudent not to exercise jurisdiction under Article not encouraged vii) Excessive judicial interference in the arbitral process is necessarily interfere with the arbitral process vi) High Courts ought to discourage litigation which perverse i.e. that the perversity must stare in the face v) Interference is permissible only if the order is completely jurisdiction the writ court would not interfere order is so perverse that it is patently lacking in inherent iv) Though interference is permissible unless and until the exceptional circumstances iii) For interference under Article 226 227 there have to be is a Constitutional provision apply in respect of exercise of powers under Article 227 which ii) The non obstante clause in section 5 of the Act does not under Article 226 227 would be maintainable i) An arbitral tribunal is a tribunal against which a petition the Act. an arbitral tribunal including orders passed under Section 16 of interference under Article 226 227 in challenges to orders by following principles are well settled in respect of the scope of “25. A perusal of the above mentioned decisions shows that the Paragraph 25 of the said judgment is set out below: under Articles 226 and 227 of the Constitution of India has been prescribed. interference with regard to arbitration matters in exercise of jurisdiction of this Court in Surender Kumar Singhal wherein the scope for 17. The counsel for the respondent has rightly relied upon the judgment Signed By:ARUNAKANWARSigning Date:30.10.202122:34:33Signature Not Verified CM(M) 958 2021 and CM No.959 2021 OCTOBER 28 2021 AMIT BANSAL J. 20. The petitions and all pending applications are dismissed. In view of the above there is no merit in the present petitions. Constitution of India. warrant the exercise of jurisdiction by this Court under Article 227 of the stage at which the arbitration proceedings are there is no occasion to demonstrated made out in the petitions or during the hearing and given the 18. Since no exceptional circumstances or exceptional rarity have been be completely avoided. ” to diminish and hence interdicting the arbitral process should x) Efficiency of the arbitral process ought not to be allowed Signed By:ARUNAKANWARSigning Date:30.10.202122:34:33Signature Not Verified

Available civil remedy cannot be a ground to quash criminal proceedings. : Jharkhand High Court

A civil wrong is also a criminal offence, and the mere availability of a civil remedy for the complainant cannot be used to quash a criminal proceeding. The real test is whether or not the allegations in the complaint reveal a criminal offence of cheating, which was used by Justice Anubha Rawat Choudhary of the Jharkhand High Court in the matter of Shasank Gupta versus State of Jharkhand [ Cr. M. P. No. 1097 of 2008] This order was passed in the matter where the petition was filed for the instant criminal miscellaneous application, the petitioners seek to quash the entire criminal proceeding in connection with C.P. Case No. 1484/2007, including the order taking cognisance dated 13.2.2008 passed by learned Pawan Kumar, Judicial Magistrate, Dhanbad, whereby and whereunder cognisance was taken against the petitioners and summons were issued against them. According to the complaint petition, there were three accused: one Shiv Prasad Singh, son of late Gopi Nath Singh, and the current two petitioners. Cognisance has been granted to all three defendants. Learned senior counsel for the petitioners submits that the accused No.-1 died on June 26, 2011, and he had filed Criminal Miscellaneous Petition No. 753 of 2008, which was withdrawn due to his death by order dated August 1, 2012. The learned senior counsel has filed the complaint petition and has submitted that upon review of the entire complaint case, it appears that the case arises out of a civil dispute between the parties and it is alleged that there were certain monetary transactions pursuant to an agreement dated 13.11.2006 and, according to the complainant, he was placed in possession of the property along with witness No. The complainant’s complaint is that, despite the fact that the accused persons took a large sum of money, the sale deed was never carried out. He claims that after reviewing the complaint case, no criminal case can be established, and thus the entire criminal proceeding should be quashed and set aside in accordance with Section 482 of the Cr.P.C. The learned senior counsel relied heavily on the Hon’ble Supreme Court’s decision reported in (2015) 8 SCC 293. This Court also finds that the petitioners have not annexed a copy of any of the four witnesses who were examined before the learned court below prior to the learned court below taking cognisance by the impugned order. The complaint, examination of the complainant on solemn affirmation, examination of four witnesses in support of the complaint, and the documents produced before the learned court below were all considered by the learned court below. In the absence of the four witnesses’ depositions and other materials on the record of the learned court below, this Court is unable to examine their statements.

Shasank Gupta vs State Of Jharkhand on 15 March 2021 Jharkhand High Court Shasank Gupta vs State Of Jharkhand on 15 March 2021 1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. M. P. No. 10908 1. Shasank Gupta S o Sri Ashok Kr Gupta resident of Mithu Road Bank More PO PS & District Dhanbad 2. Jagjot Singh S o Inder Singh resident of B.M. Agarwala Colony Dhansar PO & PS Dhansar District Dhanbad ... ... ... Petitioners Versus 1. State of Jharkhand 2. Kaushar Alam son of Md. Hadees Resident of Ratanji Road Purana Bazar P.O. Dhanbad PS & District Dhanbad ... ... ... Opp. Parties CORAM: HON BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Petitioners : Mr. Anil Kumar Sinha Senior Advocate Mr. Pankaj Kumar Advocate For the State : Mr. Jitendra Pandey Advocate For the O.P. No. 2 : Mr. Sharabil Ahmed Advocate Through Video Conferencing 18 15.03.2021 1. Heard Mr. Anil Kumar Sinha learned senior counsel appearing on behalf of the petitioners 2. Heard Mr. Sharabil Ahmed learned counsel appearing on behalf of the opposite party No. 2 3. Heard Mr. Jitendra Pandey learned counsel appearing on behalf of opposite party State 4. This petition has been filed for the following reliefs: That in the instant criminal miscellaneous application the petitioners pray for quashing the entire criminal proceeding in connection with C.P. Case No. 1484 2007 including the order taking cognizance dated 13.2.2008 passed by learned Pawan Kumar Judicial Magistrate Dhanbad whereby and whereunder cognizance under section 420 406 120B of I.P.C. against the petitioners was taken and summons were issued against the petitioners 5. The complaint petition indicates that there were three accused namely one Shiv Prasad Singh Son of Late Gopi Nath Singh and the present two petitioners. Cognizance has been taken against all the three accused Indian Kanoon Arguments on behalf of the petitioners Shasank Gupta vs State Of Jharkhand on 15 March 2021 6. Learned senior counsel for the petitioners submits that so far as the accused No. 1 is concerned he has expired on 26.06.2011 and he had filed Criminal Miscellaneous Petition No. 7508 and on account of his death the same was withdrawn vide order dated 01.08.2012 7. The learned senior counsel has placed the complaint petition and has submitted that upon perusal of the entire complaint case it appears that the case arises out of civil dispute between the parties and it is alleged that there were certain transaction of money pursuant to agreement dated 13.11.2006 and as per the complainant himself he was put in possession of the property alongwith witness No. 1. The grievance of the complainant is that ultimately the sale deed was not executed in spite of the fact that huge amount was taken by the accused persons. He submits that no criminal case is made out upon perusal of the complaint case and therefore the entire criminal proceeding is fit to be quashed and set aside in exercise of the powers under section 482 of Cr.P.C. The learned senior counsel has heavily relied upon the judgment passed by the Hon ble Supreme Court reported in8 SCC 293 Arguments on behalf of the opposite party No. 2 8. Learned counsel appearing on behalf of opposite party No. 2 has referred to the impugned order taking cognizance. He submits that the order taking cognizance is an elaborate order dealing with every aspect of the matter and a well speaking order indicating the criminality of Shiv Prasad Singh as well as the petitioners involved in the present case 9. He also submits that altogether 4 witnesses were also examined from the side of the prosecution and a number of documents were placed and the learned court below upon recording of satisfaction took cognizance of offence 10. Learned counsel submits that merely because there is an element of civil dispute between the parties that by itself does not exclude criminal liability as the basic ingredients of offence under Sections 420 406 read with Section 120B of IPC are made out in the present case. He has referred to the judgment passed by the Hon ble Supreme Court reported in8 SCC 751 paragraph 8 and also the judgment reported in9 SCC 677 paragraphs 8 9 and 10 to submit that it has been held by the Hon ble Supreme Court that there could be situations where civil as well as criminal liability are involved 11. Learned counsel has referred to the impugned order taking cognizance to indicate that the learned court below has found the criminal intent of the petitioners right from inception. He also submits that not only the complaint petition and solemn affirmation of the complainant but also the deposition of the witnesses and the materials produced before the learned court below are required to be considered and deposition of the witnesses have not been filed by the petitioners and the learned counsel for the petitioners has only placed the complaint petition. He also submits that otherwise also upon perusal of the complaint petition there is enough allegations to proceed against the accused persons Indian Kanoon Rejoinder arguments of the petitioners Shasank Gupta vs State Of Jharkhand on 15 March 2021 12. In response learned senior counsel appearing on behalf of the petitioners has submitted that the fact remains that apart from money transaction the factory premises was handed over to the complainant and witness No. 1. This itself indicates that there was no criminal intent right from the beginning of the transaction and the judgments which have been cited by the learned counsel for the opposite party No. 2 only indicate exception to the general rule that when there is civil dispute it cannot be given a colour of a criminal case. He has referred to the judgment passed by the Hon ble Supreme Court reported in10 SCC 336 paragraph 7 as well as judgment reported in8 SCC 293 paragraphs 9 to 12 which arose out of petitions filed under Section 482 of Cr.P.C. for quashing of the F.I.R. and he submits that in these judgments it has been held that if at the initial stage there is no criminal intent subsequent change of intention will not give rise of a criminal case However during the course of argument it has not been disputed by the learned senior counsel for the petitioners that statement of the four witnesses who have deposed before the learned court below prior to taking cognizance have not been filed in this case for consideration by this Court Findings of this Court 13. This Court finds that the learned senior counsel for the petitioners has submitted that the accused No. 1 namely Shiv Prasad Singh had expired on 26.06.2011 and accordingly the separate criminal miscellaneous petition filed by him being Criminal Misc. Petition No. 753 2008 was withdrawn vide order dated 01.08.2012. This Court has called for the records of Criminal Misc Petition No. 753 2008 and only order sheet of the said case is available. There is nothing in the order sheet to indicate that the case was withdrawn on 01.08.2012 on account of death of Shiv Prasad Singh. This Court also finds that there is nothing on record either in the present case or in Cr.M.P. No. 753 2008 that Shiv Prasad Singh has expired and even the death certificate is not on record. From perusal of status report received from the learned court below it appears that there is no indication regarding death of Shiv Prasad Singh. The status report from the learned court below indicates that the process under Section 82 of Cr.P.C. was issued on 22.05.2017 and the process under Section 83 was issued on 19.06.2018 against both the present petitioners. It further appears that on 26.10.2018 accused person namely Shasank Gupta has taken bail on surrender and the petitioner namely Jagjot Singh is still absent and the next date which was fixed by the learned court below as per the status report dated 21.10.2020 was 20.01.2021 for appearance of the present petitioner namely Jagjot Singh 14. This Court finds that the present case was filed on 01.08.2008 and thereafter it was listed for the first time before the Bench only on 24.01.2011 wherein a prayer for adjournment was made and the case was directed to be listed on 07.02.2011. Thereafter on 07.02.2011 nobody appeared on behalf of the petitioners and the matter was adjourned to be listed after one week under the same heading. Thereafter again the matter was listed on 09.07.2015 and on that day also nobody appeared on behalf of the petitioners. However this Court was pleased to direct the petitioners to take steps for service of notice against Opposite Party No. 2 but no steps were taken and thereafter vide order dated 06.01.2016 by way of last chance time till 12.01.2016 was granted to comply with the order dated 09.07.2015 and it was indicated that failing which this application shall stand rejected without further reference to a Bench. Thereafter the opposite party No. 2 appeared Indian Kanoon Shasank Gupta vs State Of Jharkhand on 15 March 2021 through Advocate and when the matter was taken up on 04.07.2017 the case was dismissed for non prosecution. Subsequently the case was restored vide order dated 28.09.2019 passed in Cr.M.P. No. 2627 2018 15. As per the prosecution case the complainant as well as the accused persons are involved in coal business. The accused No. 1 was a major share holder of Mahakali Hard Coke. In the last week of October 2006 the accused persons with a fraudulent and malafide intention in conspiracy with each other approached the complainant and witness No. 1and stated that accused No. 1 along with his other two partners Mr. Manmohan Grover and Mr. Vijay Grover were intending to sell their Mahakali Hard Coke Plant and were looking for a prospective buyer. The accused Nos. 2 and 3 stated that they had decided to purchase the Mahakali Hard Coke Plant but since they do not have enough cash they were looking for some other viable partners who could invest money The accused deceitfully proposed the complainant and witness No. 1 to invest money and purchase the plant from accused No. 1 by becoming their partners. Accordingly the complainant and witness No. 1 arranged money upon fraudulent inducement by the accused persons. On 13.11.2006 an agreement for sale was executed between accused No. 1 and other two partners. i.e. Manmohan Grover and Vijay Grover on one side and the complainant witness No. It is alleged that the complainant and witness No. 1 became partners of accused Nos. 2 and 3 on their fraudulent misrepresentation and entered into an agreement dated 13.11.2006 with the accused No. 1 and other two personsis concerned the same does not apply to the facts and circumstances of this case. The said case arose out of a petition filed under Section 482 of the Code of Criminal Procedure for quashing the First Information Report when the case was registered under sections 420 120B of IPC and the same was dismissed by the High Court Indian Kanoon Shasank Gupta vs State Of Jharkhand on 15 March 2021 In the said case it has been recorded by the Hon ble Supreme Court that the only allegation in the complaint petition against the accused persons was that they assured the complainant that when they receive the insurance claim amounting to Rs. 4 20 000 they would pay a sum of Rs 2 60 000 to the complainant out of that but the same has never been paid. It was pointed out on behalf of the complainant that the accused fraudulently persuaded the complainant to agree so that the accused may take steps for moving the Consumer Forum in relation to claim of Rs. 4 20 000 The Hon ble Supreme Court held that it is well settled that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. If the intention to cheat has developed later on the same cannot amount to cheating and in the said case nowhere it was stated that at the very inception there was any intention on behalf of the accused persons to cheat which is condition precedent for an offence under Section 420 of the Indian Penal Code In this background the Hon ble Supreme Court was of the view that the allegation disclosed in the complaint did not disclose any criminal offence at all much less any offence either under Section 420 or 120 B of IPC and the said case was also found to be a case of purely civil dispute between the parties and accordingly the entire criminal proceedings including the F.I.R. was quashed In the present case as discussed above the allegations of fraudulent intention since beginning have been made and there are also allegations of criminal misappropriation. Consequently the cognizance has been taken under section 420 IPC as well as section 406 read with section 120 B of 20. Similarly the judgment passed by the Hon ble Supreme Court reported in8 SCC 293 Vesa Holdings P. Ltd. and Ors. Vs. State of Kerala and Ors.) also does not apply to the facts and circumstances of this case. In that case also the petition under Section 482 of Cr.P.C. seeking quashing of F.I.R. registered under sections 120 B 417 418 and 420 IPC was dismissed by the High Court which was subject matter of consideration by the Hon ble Supreme Court In the said case there was a letter containing the offer of the appellants of the case and the acceptance of the offer by the respondent in connection with settlement of certain dues of the bank In the said case no allegation whatsoever was made against the appellants in the correspondence between the parties and it was only mentioned that the consultation fee remained unpaid and the company was delaying the payment on the one pretext or the other .The Hon ble Supreme Court was of the considered view that the settled proposition of law is that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. It was also held that if the intention to cheat has developed later on the same cannot amount to cheating The Hon ble Supreme Court also held that it is true that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may be available to the complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose the criminal offence of cheating or not Indian Kanoon Shasank Gupta vs State Of Jharkhand on 15 March 2021 21. In the present case if the complaint is taken on its face value also there are sufficient materials to constitute a prima facie case under sections 420 406 120 B of IPC and there are allegations of fraudulent intent even at the time of entering into the agreement dated 13.11.2006. This Court is of the prima facie view at this stage that merely because the plant in question was handed over to the complainant and witness No.1 the same by itself cannot be conclusive of absence of criminal intent at the time of entering into agreement. Moreover there are further allegations of misappropriation of hard coke from the plant against the present two petitioners when they were given access to the plant in question 22. In view of the aforesaid facts and circumstances this court is of the considered view that the arguments of the learned senior counsel for the petitioners that no criminal case is made out against the petitioners on the face of the allegations in complaint petition is devoid of any merits 23. This Court further finds that the petitioners have not annexed the copy of the examination of any of the four witnesses who were examined before the learned court below prior to taking cognizance by the learned court below by the impugned order. The learned court below has considered the complaint examination of the complainant on solemn affirmation as well as examination of four witnesses in support of the complaint and also the documents produced before the learned court below. In absence of deposition of the four witnesses and other materials on record of learned court below this Court is not in a position to examine their statements. No endeavour has been made to file the aforesaid materials before this Court from the side of the petitioners and the entire arguments have been advanced only on the allegations made in the complaint petition. This Court finds that the learned court below has passed a detailed order taking cognizance taking into consideration all the materials which were brought on record before the learned court below including the examination of the four witnesses 24. In the judgement passed by the Hon ble Supreme Court reported in 1992 Suppl.SCC 335 State of Haryana and Ors. Vs. Bhajan Lal and Ors.) it has been held in Para 102 and 103 as follows 102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice though it may not be possible to lay down any precise clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised 1) Where the allegations made in the first information report or the complaint even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused Indian Kanoon Shasank Gupta vs State Of Jharkhand on 15 March 2021 2) Where the allegations in the first information report and other materials if any accompanying the FIR do not disclose a cognizable offence justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code 3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused 4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non cognizable offence no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the 5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused 6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Actto the institution and continuance of the proceedings and or where there is a specific provision in the Code or the concerned Act providing efficacious redress for the grievance of the aggrieved party 7) Where a criminal proceeding is manifestly attended with mala fide and or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal 103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice 25. In view of the aforesaid circumstances and considering the law laid down by the Hon ble Supreme Court in the case reported in 1992 Suppl.SCC 335this Court is not inclined to interfere with the order taking cognizance and quash the criminal proceedings against the petitioners. Accordingly the present petition is 26. However it is observed that dismissal of this petition will not prejudice the case of the petitioners before the learned court below in any manner whatsoever and it will be open to the Indian Kanoon petitioners to take all points as available under law Shasank Gupta vs State Of Jharkhand on 15 March 2021 27. Interim order if any stands vacated 28. Pending interlocutory applications if any is dismissed as not pressed 29. Let a copy of this order be communicated to the learned court below through e mail FAX Anubha Rawat Choudhary J.) Mukul Indian Kanoon

Petitioner was released on bail as he was arrested under Sections 406, 420 of the Indian Penal Code and 138 of the Negotiable Instruments Act, 1881: High court of Patna.

The petitioner was arrested under Sections 406 Indian penal code, “Punishment for criminal breach of trust”, section  420 IPC, “Cheating and dishonestly inducing delivery of property” and 138 of the Negotiable Instruments Act, 1881 “Dishonour of a cheque for insufficiency, etc., of funds in the account”. This is in connection with Brahampur PS Case No. 153 of 2020 dated 19.03.2020. This judgment was given in the high court of judicature at Patna by honorable Mr. Justice Ahsanuddin Amanullah on the 29th of July 2021 in the case of Raj Kishor versus the state of Bihar criminal miscellaneous No. 34543 of 2020, Dr. Anjani represented as the advocate for the petitioner and Mr. Sanjay Kumar represented the state of Bihar as the additional Public Prosecutor, the proceedings of the court were held through video conference. The following are the facts of the case The petitioner was accused of taking Rs. 1,80,000 in the form of a cheque for his mother’s treatment but the same bounced and the money was never returned. The counsel for the petitioner held that due to some personal difficulty faced by the petitioner because of heavy expenses which were incurred on the medical treatment for his mother and therefore he wasn’t able to return the money and was however now ready to repay. The same proposal was made by the petitioner and was accepted by the informant according to the order dated 13.04.2021, the petitioner had agreed to transfer the amount by 20th April 2021. Due to carious hindrances, the money could not be transferred in time and after indulgence, the total amount of Rs 1,80,000 has now been paid to the informant. The counsel for the informant does not hold any dispute regarding the same and submitted that the informant received the money and redressed her grievance and she shall not be pressing the case filed by her in the Court. The court held that “After hearing the facts of the case the Court is inclined to grant pre-arrest bail to the petitioner. Accordingly, in the event of arrest or surrender before the Court below within six weeks from today, the petitioner is released on bail upon furnishing bail bonds of Rs. 25,000/- (twenty-five thousand) with two sureties of the like amount each to the satisfaction of the learned Judicial Magistrate, Buxar in Brahampur PS Case No. 153 of 2020, subject to the conditions laid down in Section 438(2) of the Code of Criminal Procedure, 1973 “(i) that one of the bailors shall be a close relative of the petitioner and (ii) that the petitioner shall co-operate with the police/prosecution and the Court. “

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 345420 Arising Out of PS. Case No. 153 Year 2020 Thana BRAHMPUR District Buxar Raj Kishor Vidyarthi Male aged about 32 years Son of Late Sidheshwar Thakur Resident of Village Hundari PS Hilsa District Nalanda The State of Bihar ... Petitioner s ... Opposite Party s For the Petitioner s For the State For the Informant Dr. Anjani Prasad Singh Advocate Mr. Sanjay Kumar Sharma APP Mr. Rang Nath Choubey Advocate CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 29 07 2021 The matter has been heard via video conferencing 2. Heard Dr. Anjani Prasad Singh learned counsel for the petitioner Mr. Sanjay Kumar Sharma learned Additional Public Prosecutor for the State and Mr. Rang Nath Choubey learned counsel for the 3. The petitioner apprehends arrest in connection with Brahampur PS Case No. 153 of 2020 dated 19.03.2020 instituted under Sections 406 420 of the Indian Penal Code and 138 of the Negotiable Instruments Act 1881 4. The allegation against the petitioner is that he had taken Rs. 1 80 000 for treatment of his mother and had given a cheque but the same bounced and the money was never Patna High Court CR. MISC. No.345420 dt.29 07 2021 5. Learned counsel for the petitioner had earlier taken a categorical stand that due to personal difficulty faced by the petitioner on account of heavy expenses incurred on the treatment of his mother he could not earlier return the money and was ready to do the same 6. The aforesaid proposal on behalf of the petitioner was accepted by the informant and as per the order dated 13.04.2021 the petitioner had agreed to transfer the amount by 20th April 2021. However due to various factors the money could not be transferred in time and after further indulgence given the total amount of Rs. 1 80 000 as per the stand taken by learned counsel for the petitioner has now been paid to the informant 7. Learned counsel for the informant does not dispute the same. Learned counsel submitted that after having received her money her grievance has been redressed and she shall not be pressing the case filed by her in the Court below 8. Having regard to the aforesaid the Court is inclined to grant pre arrest bail to the petitioner 9. Accordingly in the event of arrest or surrender before the Court below within six weeks from today the petitioner be released on bail upon furnishing bail bonds of Rs. 25 000 twenty five thousand) with two sureties of the like amount each Patna High Court CR. MISC. No.345420 dt.29 07 2021 to the satisfaction of the learned Judicial Magistrate Buxar in Brahampur PS Case No. 1520 subject to the conditions laid down in Section 438(2) of the Code of Criminal Procedure 1973 and further that one of the bailors shall be a close relative of the petitioner andthat the petitioner shall co operate with the police prosecution and the Court. Failure to co operate shall lead to cancellation of his bail bonds 10. It shall also be open for the prosecution to bring any violation of the foregoing conditions of bail by the petitioner to the notice of the Court concerned which shall take immediate action on the same after giving opportunity of hearing to the 11. The petition stands disposed off in the (Ahsanuddin Amanullah J

High Court under Section 439 of Cr.P.C can cancel erroneously granted default bail : Supreme Court

Any default bail granted after the usual expiration of 180 days by a High Court under section Section 167 (2) Cr.P.C, by error can be cancelled by it later under section 439. This remarkable judgement was passed by the bench consisting of Justice Ashok Bhushan, Justice R. Subhash Reddy and Justice M.R Shah of the Supreme Court in the matter of Venkatesan Balasubramaniyan v The Intelligence Officer, D.R.I. Bangalore, [CRIMINAL APPEAL NO. 590 of 2015]. Around 45kgs of Methaqualone was found in a car, which is a psychotropic drug under the NDPS Act, 1985 for which the appellants were arrested under section 22, 28 and 29 of the said Act. The appellants alleged that before the Special Judge, Hyderabad when the case was taken, neither any charge sheet was filed before the Special Court Hyderabad nor any information was given to the Special Court that any charge sheet has been filed in Omerga Court, Maharashtra. Further, no complaint under Section 36A(d) of NDPS Act having been filed on the date which period, 180 days had lapsed, the learned Special Court had granted default bail on 12.07.2018 to all the appellants. Two offences were committed, one at Hyderabad being at the instance of D.R.I., Hyderabad namely and the other under the NDPS Act by the D.R.I., Bangalore, Zonal Unit. Thus, a combined complaint taking care of both the offences was filed before the Special Court, Omerga, Maharashtra. There is ample material in the complaint that the transportation of narcotic substance started from Omerga, Maharashtra and was being allegedly to be taken to Chennai and intercepted at Hyderabad. The appellants are to be charged only for the offence of possession and the transport. The appellants have no role to play with reference to the manufacture of contraband in the factory at Omerga. The counsel for the appellant submitted that instead of filing an application for cancellation of the bail before the Special Court under Section 439(2) Cr.P.C., the respondent approached before the High Court under Section 439(2) Cr.P.C. When the bail order was passed by the Special Court, D.R.I., Bangalore ought to have informed the Special Court seeking the cancellation of the bail by giving explanation as to why the fact of filing combined complaint was not informed to the Special Court.The appellants by way of their collective petitions prayed for default bail since the duration of 180 days has expired under section 167(2) of the Cr.P.C. Further, the additional sessions judge demanded for the custody of the accused from Maharashtra to Bangalore. The sessions court of Hyderabad passed on the custody Directorate of Revenue Intelligence(DRI), Bangalore. The apex court held, “The High Court in the impugned judgment noted that charge sheet having been filed on 06.07.2018, i.e., well within the stipulated period of 180 days, the accused could not have been granted the benefit under Section 167 Cr.P.C. Letter of the same date 12.07.2018 was received by Special Court, Hyderabad from Special Court, Omerga praying for custody of the appellants, which custody was also granted by the Special Court, Hyderabad on the next day, i.e., 13.07.2018. All these facts were brought before the High Court in application filed under Section 439(2) Cr.P.C. and the High Court has rightly cancelled the bail order dated 12.07.2018. We do not find any error in the order of the High Court cancelling the bail. We have noted above that regular bail application under Section 439 Cr.P.C. was filed before the Omerga Court by the appellants, which was withdrawn on 25.09.2018, we are of the view that it is open for the appellants to file regular bail application before Omerga Court under Section 439 Cr.P.C. afresh, which may be considered on merits without being influenced by any observations made by the order passed by the High Court in the impugned judgment or observations made by us. We further observe that bail application to be filed by the appellants under Section 439 Cr.P.C. be considered and decided expeditiously”.

IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.8020 arising out of SLPNo.1452 2019 ...APPELLANT(S) THE INTELLIGENCE OFFICER D.R.I. BANGALORE ...RESPONDENT(S CRIMINAL APPEAL NO.8020 arising out of SLPNo.1820 2019 ...APPELLANT(S THE INTELLIGENCE OFFICER D.R.I. BANGALORE ...RESPONDENT(S CRIMINAL APPEAL NO.8020 arising out of SLPNo.1443 2019 VIJAYA KUMAR L ...APPELLANT(S THE INTELLIGENCE OFFICER D.R.I. BANGALORE ...RESPONDENT(S JUDGMENT ASHOK BHUSHAN J Leave granted. These three appeals have been filed against the common judgment dated 30.11.2018 of the High Court of Judicature at Hyderabad in Criminal Petition No.10524 of 2018 filed by the respondent before the High Court. By the impugned judgment dated 30.11.2018 the petition filed by respondent Under Section 439(2) Cr.P.C. has been allowed cancelling the bail granted to the appellants by order dated 12.07.2018 by Metropolitan Sessions Judge Hyderabad. The facts and issues in these appeals being similar it shall be sufficient to refer to the pleadings in Criminal Appeal arising out SLP Hyderabad at toll plaza Kamkole Village Munnipalli Mandal Sangareddy District Telangana in which appellants driver and two men) were travelling. The appellants along with other two persons introduced themselves on being asked as to whether they have secreted anything illegal in the car the appellant’s replied in negative. The Officers searched the car and found false casing behind the rear seats on the side walls of the boot of the car with metal doors. The appellants’ opened the door and few transparent packets with off white coloured packets were found in the casing attached to the walls of the boot. The appellants’ told that packets were of Narcotic drug which were loaded in the car by a person named Suraj at Omerga Osmanabad District Maharashtra which were to be delivered at Chennai. The Officers in presence of Panchas and the appellants opened the packet and tested the materials in the packet. The appellants were taken to the office of D.R.I. Hyderabad. The total quantity of packetsweighed to be 45.874 Kgs. 2.2 On 12.01.2018 the appellants were arrested in exercise of power conferred under Section 42 of NDPS Act 1985Cr.P.C. On 12.07.2018 a letter was received from the Additional Sessions Judge Omerga Maharashtra asking to handover the custody of appellants to D.R.I. Bangalore as they were required to appear before the Additional Sessions Judge Omerga Maharashtra in Special Case No.17 of 2018. The Sessions Court Hyderabad granted the custody of three accused on 13.07.2018 to the D.R.I. Bangalore. D.R.I. Bangalore produced the appellants before Additional Sessions Judge Omerga Maharashtra on 14.07.2018 where they were remanded till 27.07.2018. 2.4 On 02.08.2018 D.R.I. Bangalore filed application before the Special Court Hyderabad to transfer the records in the Hyderabad case to Omerga Sessions Court. On 24.08.2018 the Special Sessions Judge Hyderabad transferred the records to the Omerga Court. When Special Court Omerga Maharashtra came to know that the appellants accused have already been granted bail on 12.07.2018 before which date charge sheet was already filed before the Omerga Court on 06.07.2018 which was taken on file on 11.07.2018 A show cause notice was issued to D.R.I. Bangalore to give explanation. The D.R.I. Bangalore filed an application for cancellation of bail under Section 439(2 Cr.P.C. in the High Court by filing Criminal Petition No. 105218. The High Court by the impugned order dated 30.11.2018 cancelled the bail granted under Section 167(2) Cr.P.C. dated 12.07.2018. Aggrieved against the order dated 30.11.2018 these appeals have been filed by the three accused appellants. This Court on 22.02.2019 noticed that only one of the appellants i.e. Villayutham Nagu has been released in pursuance of the bail order dated 12.07.2018 interim order was passed in the special leave petition filed by Villayutham Nagu alone and other two appellants being still under custody notices were issued in all the matters We have heard Shri M. Karpaga Vinayagam learned senior counsel for the appellants. Shri Vikramjit Banerjee learned Additional Solicitor General has appeared for the respondent. Learned senior counsel for the appellants submits that before the Special Judge Hyderabad when the case was taken on 12.07.2018 neither any charge sheet was filed before the Special Court Hyderabad nor any information was given to the Special Court that any charge sheet has been filed in Omerga Court Maharashtra. No complaint under Section 36A(d) of NDPS Act having been filed by 12.07.2018 by which period 180 days had lapsed the learned Special Court had granted default bail on 12.07.2018 to all the appellants. The accused were entitled for default bail under Section 167(2) Cr.P.C. Learned Senior counsel submits that instead of filing an application for cancellation of the bail before the Special Court under Section 439(2) Cr.P.C. the respondent approached before the High Court under Section 439(2) Cr.P.C. When the bail order was passed by the Special Court D.R.I. Bangalore ought to have informed the Special Court seeking the cancellation of the bail by giving explanation as to why the fact of filing combined complaint was not informed to the Special Court. It is submitted that recovery of contraband from accused by the D.R.I Hyderabad is entirely different from the Omerga case which is relating to the recovery of the contraband manufactured at the factory situated at Omerga. The appellants are to be charged only for the offence of possession and the transport. The appellants have no role to play with reference to the manufacture of contraband in the factory at Omerga. The seizure of the contraband was made by the D.R.I. Hyderabad on 11.01.2018 only during the time between 12 PM to 3:30 PM at Hyderabad whereas the recovery of contraband from the factory at Omerga was made by the D.R.I. Bangalore only on 11.01.2018 at 4.30 PM and on 12.01.2018. It is further submitted that when the Special Court was not informed either on 10.07.2018 or 12.07.2018 that any charge sheet has been filed on 06.07.2018 no error was committed by Special Court in granting the default bail under Section 167(2 Cr.P.C. Learned Additional Solicitor General refuting the submissions of the learned senior counsel for the appellants contends that the appellant’s Car was intercepted at Hyderabad on basis of specific and credible information that huge quantity of NDPS substance being illegally manufactured in premises of M s. Pragati Electrical Work Omerga which is being transported to Chennai. A total of 45.874 Kgs of NDPS substance from the appellants was seized on the basis of specific intelligence. In the voluntary statements of accused Nos. 5 6 and 7recorded under Section 67 of the Act 1985 in connection with the seizure of 45.874 Kgs. of substance they have stated that started from Omerga for Chennai. It is submitted that a combined charge sheet has been filed taking into consideration the entire sequence of events including the seizure of 45.874 Kgs. NDPS substance by D.R.I. Hyderabad in which present appellants are accused Nos. 5 6 and 7 It was due to non communication of information of combined complaint having been filed on 06.07.2018 the order was passed by the Special Court on 12.07.2018 granting default bail whereas on the same day a letter was received by Special Court Hyderabad where the Special Court Omerga has asked for the custody of the accused. All the appellants filed a bail petition on 18.07.2018 before the Omerga Court under Section 439 Cr.P.C. which bail application was subsequently withdrawn on 25.09.2018 On 31.10.2018 upon fulfilling the conditions by one of the accused Villayutham Nagu the learned Omerga Court was pleased to release the said accused on 31.10.2018 and rest of the two accused are still in Osmanabad Jail. The High Court rightly cancelled the bail which was earlier granted by the learned Special Judge and the combined complaint having been filed on 06.07.2018 which was also taken on file on 11.07.2018 the appellants were not entitled for grant of default bail under Section 167(2) Cr.P.C. We have considered the submissions of the learned counsel for the parties and have perused the records The appellants’ car by which they were travelling from Omerga to Hyderabad on 11.01.2018 was intercepted by the D.R.I. officials of Hyderabad Zonal Unit near the Kamkole near Hyderabad and from the possession of the appellants 45.874 Kgs of narcotic substance was recovered. Appellants’ in the statement recorded under Section 67 of NDPS Act have stated that they have started from Omerga to Chennai in the car in which the narcotic substance was being transported. The remand of the appellants was extended from time to time till 12.07.2018 by Special Court Hyderabad. On 11.01.2018 recovery of narcotic substance was also made at Omerga in the factory premises of M s Pragati Electrical Work MIDC Omerga Maharashtra on which D.R.I. has registered a case and a combined complaint dated 06.07.2018 was submitted by Intelligence Officer D.R.I. Bangalore before the Special Court Omerga. Complaint under Section 36A(1)(d) of NDPS Act for offences under Section 8(c) punishable under Section 21(c) 22(c) 23(c) 28 and 29 read with Section 38 of the NDPS Act has been filed dated 06.07.2018 by Intelligence Officer D.R.I. in Omerga Court. The appellants have been made accused Nos. 5 6 and 7 in the complaint The combined complaint has been brought on the record by the respondent alongwith additional documents in which with regard to accused Nos. 5 6 and 7 i.e. appellants in these appeals apart from other allegations and facts following has been stated in paragraphs 110 and 111: The complainant submits that accused No. 5 6 and 7 i.e. Shri Villautham Nagu Shri Venkatesan Balasubramaniyan and Shri Vijay Kumar Lwho were possessing carrying the “Ketamlne Hydrochloride” a psychotropic substance in commercial quantity in their car bearing No. KA 39 M 2117 from Omerga to Chennai and the same was seized on 11.01.2018. Hence they had committed an offence under Section 8(c) and 9A are liable to be punished under Section 21(c) Section 22(c) Section 23(c) read with Section 28 Section 29 and Section 38 of the NDPS Act 1985. 111. Ketamine Hydrochloride seized from accused No. 5 6 and 7 under Mahazar dated 11.01.2018 under Mahazar dated 11 12.01.2018 and under 11.02.2018 have been submitted to the Hon’ble Court vide various Memos in a sealed cover are liable for confiscation under the provisions of Section 60 61 62 and 63 of the NDPS Act This Hon ble Court may be pleased to pass appropriate order relating to the confiscation of the above said goods in terms of Section 63 of the NDPS Act. The High Court in the impugned judgment noted that charge sheet having been filed on 06.07.2018 i.e. well within the stipulated period of 180 days the accused could not have been granted the benefit under Section 167 Cr.P.C. In paragraph 8 following has been observed by the High Court: “8. .It can be culled out from the record that filing of the single charge sheet on 06.07.2018 before the Additional Sessions Court Omerga was not brought to the notice of the Metropolitan Sessions Court Hyderabad for whatever reason may be. Since the factual aspect remains that the charge sheet was filed on 06.07.2018 i.e. well within the stipulated period of 180 days the respondents accused are not entitled for the benefit under Section 167(2) Cr.P.C. Under these circumstances the respondents accused are entitled for bail in accordance with the provisions laid down under the NDPS Act read with Sections 437 and 439 Cr.P.C. and accordingly they are entitled to work out the remedies under the said provisions.” 10. It is true that the bail granted under Section 167(2) Cr.P.c. could have been cancelled under Section 439(2) Cr.P.C.. This Court in Pandit Dnyanu Khot Vs. State of Maharashtra and Ors. 17 SCC 745 while considering the case where bail granted under Section 167(2) Cr.P.C. was cancelled under Section 439(2) Cr.P.C. by learned Sessions Judge after noticing the facts upheld the order under Section 439 Cr.P.C. cancelling the bail. Paragraphs 7 8 and 9 of the judgment are as follows: “7. In the present case against the accused FIR for the offences punishable under Sections 302 307 147 148 149 324 and 323 IPC and Section 27 of the Arms Act was registered. The accused were arrested on 28 10 2000 and were produced before the Judicial Magistrate. They filed an application under Section 167(2) CrPC on 25 1 2001 for releasing them on bail on the ground that charge sheet was not submitted within the stipulated time and the court released them on bail on the same date by exercising jurisdiction under Section 167(2) CrPC. The State filed an application on 31 1 2001 under Section 437(5) and Section 439(2) CrPC before the Sessions Judge Kolhapur for cancellation of bail. Before the said application could be finally disposed of the accused preferred an application Ext. 8 submitting that an application under Sections 437(5 and 439(2) was not maintainable before the Sessions Court and the State ought to have approached the learned Magistrate for cancellation of the bail. That application was rejected by the learned Additional Sessions Judge by order dated 3 3 2001 Thereafter the learned Additional Sessions Judge by judgment and order dated 2 5 2001 allowed the said application and set aside the order passed by the Judicial Magistrate on the ground that the accused were released on the 89th day that is before expiry of 90 days 8. In our view it appears that the High Court has committed basic error in not referring to the provisions of Section 439(2) CrPC which specifically empower the High Court or the Court of Session to cancel such bail. Section 439(2) reads as “439. Special powers of High Court or Court of Session regarding 2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.” 9. The proviso to Section 167 itself clarifies that every person released on bail under Section 167(2) shall be deemed to be so released under Chapter XXXIII Therefore if a person is illegally or erroneously released on bail under Section 167(2) his bail can be cancelled by passing appropriate order under Section 439(2) CrPC. This Court in Puran v Rambilas 6 SCC 338] has also clarified that the concept of setting aside an unjustified illegal or perverse order is totally different from the concept of cancelling the bail on the ground that the accused has misconducted himself or because of some new facts requiring such cancellation.” 11. It is not even submitted before us that Omerga Court where common complaint has been filed against the accused had no jurisdiction to inquire and try the offence. It was due to some miscommunication that at the time when Court passed the order on 12.07.2018 the factum of filing of combined complaint dated 06.07.2018 was not brought into the notice of Special Court Hyderabad. Although letter of the same date 12.07.2018 was received by Special Court Hyderabad from Special Court Omerga praying for custody of the appellants which custody was also granted by the Special Court Hyderabad on the next day i.e. 13.07.2018. All these facts were brought before the High Court in application filed under Section 439(2) Cr.P.C. and the High Court has rightly cancelled the bail order dated 12.07.2018. We do not find any error in the order of the High Court cancelling the bail order dated 12.07.2018. 12. It is true that two offences one at Hyderabad being at the instance of D.R.I. Hyderabad namely D.R.I. 48 of 2018 was registered and another case Special NDPS No. 118 by the D.R.I. Bangalore Zonal Unit. A combined complaint taking care of both the offences was filed before the Special Court Omerga as noted above wherein offences committed by the accused were also inquired and dealt with. There is ample material in the complaint that the transportation of narcotic substance started from Omerga Maharashtra and was being allegedly to be taken to Chennai and intercepted at Hyderabad. The complaint which has been brought on the record gives the detailed facts including the journey and the interception of appellants at Hyderabad. The combined complaint having been filed on 06.07.2018 i.e. well within 180 days the High Court did not commit any error in cancelling the default bail granted to the appellants on 12.07.2018. We thus are of the view that there is no ground for interfering with the impugned judgment order of the High Court. We have noted above that regular bail application under Section 439 Cr.P.C. was filed before the Omerga Court by the appellants which was withdrawn on 25.09.2018 we are of the view that it is open for the appellants to file regular bail application before Omerga Court under Section 439 Cr.P.C. afresh which may be considered on merits without being influenced by any observations made by the order passed by the High Court in the impugned judgment or observations made by us. We further observe that bail application to be filed by the appellants under Section 439 Cr.P.C. be considered and decided expeditiously. The order dated 12.07.2018 having been set aside by the High Court which order having been confirmed by this Court the appellant Villayutham Nagu is to surrender before the Special Court Omerga. All the appeals are dismissed subject to liberty granted to the appellants as above. ( ASHOK BHUSHAN ......................J. ( R. SUBHASH REDDY ( M.R. SHAH New Delhi November 20 2020

Claims of Coercion must be substantiated with evidence causing such prejudice: Delhi High Court

The violation alleged would not be grounds for seeking interference of Courts unless it is clearly demonstrated that such violation caused prejudice to the person claiming such a ground. This was held by the two-judge bench comprising of Hon’ble Justice Rajiv Sahai Endlaw and Hon’ble Justice Amit Bansal in the case of Deepak Chaudhary vs. Union of India and Ors. [W.P.(C) 7885/2021] on the 06th of august, before the Hon’ble High Court of Delhi at New Delhi. The brief facts of the case are, the petitioner is an Ex-Constable in respondent Border Security Force. The petitioner, absented himself without leave twice, from 16th August, 2020 till 18th August, 2020 and again from 29th August, 2020 to 23rd October, 2020. The respondent BSF wrote letters to the petitioner, asking him to re-join his duties, but the said letters were not replied to by the petitioner and he resumed his duties only on 23rd October, 2020. The petitioner was heard by the Commandant, BSF, who remanded the petitioner for Record of Evidence. The petitioner, after competition of the Record of Evidence was tried by the Summary Security Force Court (SSFC) for two offences of „absenting himself without leave‟ under Section 19(a) of the BSF Act. The petitioner pleaded guilty to both offences and upon being given an opportunity by the respondent BSF of making a statement in his defence, he stated that “I had made a mistake and may be pardoned”. Additionally, the petitioner declined to call any witness in his defence upon being given an opportunity to do so. Vide order dated 22nd January, 2021, the petitioner was awarded the punishment of dismissal from service by the SSFC. The present petition has been filed impugning the dismissal order. The petitioner submitted that proper opportunity of presenting his case was not given to the petitioner in terms of aforesaid Rules and that the petitioner was made to plead guilty under coercion by the respondents. The respondents submitted that the petitioner had a dismal service record and he was habitually absenting himself without leave. He had absented himself without leave on earlier occasions also, but his case was dealt with leniently by the authorities to give him an opportunity to improve his conduct. The court heard the submissions of both the parties and relied on State Bank of Patiala Vs. S.K. Sharma (1996) 3 SCC 364, wherein it was held that, “an order cannot be set aside altogether for any and every violation of a facet of natural justice and the complaint must be examined on the touchstone of prejudice. It was further observed that all things taken together, whether or not the delinquent officer was afforded a fair hearing, is what has to be seen in cases involving objection to compliance of procedural provisions.”

IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(C) 7885 2021 Date of decision: 6th August 2021 DEEPAK CHAUDHARY Through: Mr. Abhay Kumar Bhargava Adv. Petitioner UNION OF INDIA & ORS. Respondents Through: Ms. Shruti Shivkumar Adv. on behalf of Mr. Ravi Prakash & Mr. Syed Hussain Adil Taqvi Advs. HON BLE MR. JUSTICE RAJIV SAHAI ENDLAW HON BLE MR. JUSTICE AMIT BANSAL VIA VIDEO CONFERENCING] AMIT BANSAL J. CM No.24512 2021Allowed subject to just exceptions and as per extant rules. The application is disposed of. W.P.(C) 7885 2021 The present petition has been filed by the petitioner an Ex Constable in respondent Border Security Force impugning the dismissal order dated 22nd January 2021 of the Commandant BSF dismissing the petitioner from service with effect from 22nd January 2021 pursuant to finding of the Summary Security Force Court of the petitioner being guilty of offences under Section 19(a) of the Border Security Force Act 1968No.7885 2021 23rd October 2020. The respondent BSF wrote letters to the petitioner asking him to re join his duties but the said letters were not replied to by the petitioner and he resumed his duties only on 23rd October 2020. The petitioner was heard by the Commandant BSF who remanded the petitioner for Record of Evidence. The petitioner after competition of the Record of Evidence was tried by the Summary Security Force Court SSFC) for two offences of „absenting himself without leave‟ under Section 19(a) of the BSF Act. The petitioner pleaded guilty to both offences and upon being given an opportunity by the respondent BSF of making a statement in his defence he stated that “I had made a mistake and may be pardoned”. Additionally the petitioner declined to call any witness in his defence upon being given an opportunity to do so. Vide order dated 22nd January 2021 the petitioner was awarded the punishment of dismissal from service by the SSFC. The said order was challenged by the petitioner in W.P.(C) No.5322 2021earlier petition filed by the petitioner being W.P.(C) vide order dated 17th May 2021 was dismissed as withdrawn with liberty to the petitioner to pursue his statutory remedy under Rule 28A of the Border Security Force Rules 1969No.7885 2021 The present petition has been filed inter alia impugning the dismissal order and seeking reinstatement. The counsel for the petitioner has contended before us violation of Rule 45 Rule 45B and Rule 71 read with Rule 78 of the BSF Rules. He submits that proper opportunity of presenting his case was not given to the petitioner in terms of aforesaid Rules and that the petitioner was made to plead guilty under coercion by the respondents. 8. We have gone through the record and in light thereof considered the submissions made by the counsel for the petitioner. The petitioner has annexed the medical records of his uncle in support of his contention that his uncle was gravely ill. However from the said records it appears that the uncle of the petitioner was hospitalised only from 25th August 2020 to 3rd September 2020 i.e. for a period of 10 days. The same does not justify the petitioner absenting himself without leave for 56 days from 29th August 2020 to 23rd October 2020. Even otherwise no particulars of the uncle of the petitioner who was ill as to how he was related to the petitioner have been given. The petitioner has failed to show any clear violation of the aforesaid Rules. Even if it is assumed that there was some violation of any procedure as mandated by the Rules the petitioner has failed to point out the prejudice caused to him on account of such alleged violation. In fact it is admitted on behalf of the petitioner that the petitioner had applied for leave but the same was not given by the respondent BSF and therefore the petitioner proceeded to absent himself without leave as his uncle was acutely ill. Moreover there is nothing on record to substantiate the contention that the petitioner was made to plead guilty under coercion. The violation as alleged W.P.(C) No.7885 2021 by the petitioner would not be grounds for seeking interference of Courts unless it is clearly demonstrated that such violation caused prejudice to the petitioner. Reference in this regard may be made to the dicta in State Bank of Patiala Vs. S.K. Sharma 3 SCC 364 where the Supreme Court has observed that an order cannot be set aside altogether for any and every violation of a facet of natural justice and the complaint must be examined on the touchstone of prejudice. It was further observed that all things taken together whether or not the delinquent officer was afforded a fair hearing is what has to be seen in cases involving objection to compliance of procedural provisions. 10. The petitioner has failed to provide any justification for proceeding without leave. The conduct of the petitioner of absenting himself without leave gravely affects the ethos and discipline of an armed force like BSF. As noted in the order dated 28th May 2021 the petitioner had absented himself without leave on earlier occasions also but was dealt with leniently and given an opportunity to improve his conduct. As personnel of a disciplined force like the BSF the petitioner cannot absent himself without leave and such conduct is taken seriously by the respondent BSF and accordingly the punishment of dismissal has been rightly imposed. Dismissed. AUGUST 06 2021 W.P.(C) No.7885 2021 AMIT BANSAL J RAJIV SAHAI ENDLAW J.

S.147 of the Motors Vehicles Act, 1988 covers death or bodily injury to even gratuitous passenger: Karnataka High Court

Section 147 of the MV Act, 1988 ensures that an Insurance Policy covering Third-party risk is not required to exclude gratuitous passengers in a vehicle irrespective of the vehicle’s type or class. This judgment was passed in the case of New India Assurance Co. Ltd. vs. Smt. Kamalamma [M.F.A.No.1139/2011] by a Single Bench consisting of Hon’ble Justice H.P. Sandesh. The appeal in the present case was filed by the appellant insurance company challenging the judgment passed by the Additional Civil Judge and Additional motor Accident Claims Tribunal (the Tribunal). The respondent filed a claim petition challenging the death of her son who was traveling in a tractor-trailer (the Tractor) which dashed against the KEB pole and skidded to a paddy field when driven in a rash and negligent manner. As a result of the same, the deceased suffered injuries and died in the hospital. The deceased was doing supervisory work and earning Rs4000 per month and maintaining the claimant. The second respondent- The insurer of the tractor, opposed the claim petition contending that the deceased was traveling as a passenger contrary to the terms and conditions of policy and permit. Thus, the Insurance Company would not be liable to pay any compensation. The tribunal after considering oral and documentary evidence allowed the claim petition by granting Rs.3,39,000/- with 6% interest per annum from the date of petition till deposit and the first respondent alone would be liable. The tribunal changed its order and directed the Insurer to pay the compensation amount modifying the quantum of compensation awarded by the Tribunal. The High Court of Karnataka considered that the crux of the issue at hand was whether the Tribunal had committed an error in fastening the liability of the Insurance company and whether the same required the interference of the Court. The High Court observed that the Insurance Company was proceeding as a gratuitous passenger. Further, the cross 0edxamination also did not reveal that he traveled as a passenger. The primary contention of the claimant was that the son was working as a supervisor. The high court observed that the appellant did not dispute the document which showed that the deceased was returning the tractor after unloading the bricks. Though during the cross-examination it was hinted that the deceased might not have been a supervisor, there was nothing to dispute the same. the court observed that the insurance company already collected the premium for 3td parties and the tribunal had rightly come to the conclusion that the policy is a comprehensive policy and not an act policy. The next contention of the appellants was that as per section 147 of the Motor Vehicles Act Insurance company is not liable to pay any compensation to the Supervisor and cannot be termed as loader, workman, or coolie. The court held that a “comprehensive/package policy” would cover the liability of the insurer for payment of compensation for the occupant in a car. Further, if the contract of insurance is given its face value, it would cover the risk of not only the third party but also of persons traveling in the car including the owner. As far as if the present insurance is a comprehensive policy or act policy, it is a comprehensive policy. The High Court held that section 147 of the Motors Vehicles Act, covers death or bodily injury to even gratuitous passengers. Thus the policy would cover injury to any person including the owner of goods or his authorized representative. In the present case, the deceased is the son of the owner and under the new Act, an Insurance Policy covering 3rd party risk is not required to exclude gratuitous passengers in a vehicle irrespective of the vehicle’s type or class.

REPORTABLE IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.3894 OF 2020 THE STATE OF RAJASTHAN & ORS. Appellant(s LOVE KUSH MEENA Respondent(s JUDGMENT SANJAY KISHAN KAUL J The moot point which arises for consideration is whether a benefit of doubt resulting in acquittal of the respondent in a case charged under Sections 302 323 341 34 of the Indian Penal Code can create an opportunity for the respondent to join as a constable in the Rajasthan The respondent and three others were charged with the aforesaid provisions of the Indian Penal Code and tried before the Additional Sessions Judge Laxman Garh District Alwar Rajasthan. The incident relates to 6.10.2008 at about 6 p.m. when as per the complainant Babulal one Jagdish and Dayaram came in a tractor for tilling a disputed field in jungle Patan. Tofli mausi of Babulal forbade them to till the land and apparently stayed back in the field. At that time the tractor driver Jagdish drove the tractor and ran over Tofli. The complainant Babulal along with one Raju Om Prakash and Dinesh rushed to her side but were beaten up and knife injuries were inflicted upon them by Dayaram Love Kush respondent) Bodan and Jagdish. Tofli was taken in a Buggi to the hospital where the doctor declared her brought dead On the basis of the said report PS Khedli registered Case No.2508 under Sections 302 341 323 34 of the IPC and commenced the investigation. Upon completion of the investigation the charge sheet against all the accused persons vide No.1 2009 was filed in the Court of Judicial Magistrate Kathumar from where it was committed to the Court of the Additional Sessions Judge Laxman Garh. The charges were framed and all the accused denied the charges It is relevant to note that during the trial injured persons Babulal Om Prakash and Raju alias Rajesh obtained permission of the Court and filed a compromise in favour of accused persons under Sections 341 323 of IPC which was approved but naturally there could not have been any compromise qua the offences under Section 302 34 IPC. In those charges the trial continued and it is quite obvious that in view of the compromise all the prosecution witnesses including those injured turned hostile. On the basis of the case of the prosecution the learned Judge opined in terms of the judgment dated 01.05.2009 that “the prosecution had failed to prove the case against the accused persons beyond reasonable doubt”. A notification for recruitment of constable was issued on 14.07.2013 under the provisions contained in part III of the Rajasthan Police Subordinate Service Regulations 1989 for 12178 posts of constables setting out the procedure for making the application. Paraof the advertisement provided for disqualification for appointment. The relevant clausereads as under “(ix) As per judgment of Hon’ble Supreme Court in Civil Appeal No.782 2004 State Government and others v. Mohd. Salim Dated 10.12.2009 Director General Police Rajasthan Circular No.1687 dt.29.4.1995 is held legal. In compliance with the said judgment only those candidates shall be qualified to appear in recruitment for Rajasthan police who have not been convicted for offence of moral turpitude violent activities and not honourably acquitted by Court.” The aforesaid would show that the disqualification would operate qua conviction and “not honourably acquitted by Court” for offences of moral turpitude and violent activities. The respondent herein participated in the same and it appears was successful in the recruitment process However a letter dated 04.08.2015 was issued to him on the basis of character antecedent verifications carried out by the Police Superintendent. District Alwar Dy. Inspector General Police Security Rajasthan Jaipur whereupon the aspect of the aforesaid case was looked into 8 SCC 471 It is pointed out that various nuances arising in this judgment has been considering even in the subsequent judgments. In Union Territory Chandigarh Administration Ors. v. Pradeep Kumar & Anr.2 a two Judge Bench of this Court dealt with the expression “honourable acquittal”. It was opined that acquittal in a criminal case was not conclusive for suitability of the candidate concerned and it could not always be inferred from an acquittal or discharge that the person was falsely involved or has no criminal antecedents. Thus unless it is an honourable acquittal the candidate cannot claim the benefit of the case. No doubt it was mentioned by relying on the earlier judgment of this Court in Inspector General of Police v. S Samuthiram3 that while it was difficult to define precisely what is meant by the expression “honourable acquittal” an accused who is acquitted after full consideration of the prosecution evidence and prosecution has miserably failed to prove the charges levelled against the accused it can possibly be said that the accused was honourably acquitted In this context it has been specifically noticed by this Court that entry into the police service required a candidate to be of good character integrity and clean antecedents. Finally it was opined that the acquittal in a criminal case does not automatically entitle a candidate 2(2018) 1 SCC 797 3(2013) 1 SCC 598 for appointment to the post as a person having criminal antecedents will not fit in this category. In a similar factual scenario to the extent of recruitment to the posts of Subedars Platoon Commandants and Inspectors of Police in pursuance to an advertisement and disqualification of one of the candidates being assailed resulted in a judgment of this Court in State of Madhya Pradesh &Ors. v. Abhijit Singh Pawar4 by a two Judge Bench. Suffice to say in the factual context a case registered in the year 2006 was pending on the date when affidavit was tendered and within four days the compromise was entered into between the original complainant and the respondent. An application for compounding was filed. The compounding was found to be permissible as it dealt with offences under Sections 294 325 34 323 506 Part II of the IPC and on discussion of the legal principle enunciated in the earlier judgments it was opined that the earlier judgment in the case of Commissioner of Police v Mehar Singh5 it was opined that there is no doubt about the proposition that even after the disclosure is made by a candidate the employer would be well within his rights to consider the antecedent and suitability of the candidate In this context it was held the employer is entitled to 4(2018) 18 SCC 733 5(2013) 7 SCC 685 take into account the job profile for which the selection is undertaken the severity of the charge levelled against the candidate and whether acquittal in question was an honourable acquittal or was merely on the ground of benefit of doubt as a result of composition. We may also add that one aspect which was noticed which is common with the present case is the absence of any suggestion that the decision was actuated by malafide or suffered on other accounts except the issue raised of the subsequent circular A reference was also made to Anil Bharadwaj v. High Court of Madhya Pradesh & Ors.6 where once again a two Judge Bench of this Court found that a criminal case against the candidate under Sections 498A 406 34 of the IPC was pending consideration on a complaint filed by the wife and thus the rejection of candidature could not be said to be unsustainable. While saying so the Court also opined that the plea that the deletion of the name would result in stigma against the candidate was not sustainable since the candidate already stood acquitted. On the other hand learned counsel for the respondent sought to distinguish some of the judgments on the factual matrix while also referring to certain other 62020 SCC Online SC 832 pronouncements. In this behalf she referred to the judgment in Inspector General of Police v. S. Samuthiram supra) expounding as to what is meant by “honourable acquittal” in para 24 to contend that it is difficult to define precisely what is meant by the expression “honourable acquittal”. Counsel also sought to make a reference to a judgment in Joginder Singh v. State2 SCC 377 8Civil Appeal No.10571 2018 of moral turpitude to deny appointment in judicial service simplicitor but much would depend on the facts of a case. In the instant case the aspect of there being a time lapse between the alleged offence and the recruitment process was emphasised to contend that the respondent herein was about 19 years of age when the incident occurred and had now carried his life further by being successful in a competitive examination some years down the line. A reference was also made in the counter affidavit to certain judgments of the Rajasthan High Court granting relief to the candidates based on acquittal obtained on benefit of doubt Lastly a reference was made of an order passed by this Court in SLP[C]No.15351 2020 dated 21.01.2020 wherein an SLP was dismissed against a direction for appointment of a candidate where the order was giving benefit of doubt to the candidates in a criminal case. We may however note that firstly that this is an order and not a judgment and secondly it has been clearly stated that the dismissal was “in the given facts and circumstances of the case” Examining the controversy in the present case in the conspectus of the aforesaid legal position what is important to note is the fact that the view of this Court has depended on the nature of offence charged and the result of the same. The mere fact of an acquittal would not suffice but rather it would depend on whether it is a clean acquittal based on total absence of evidence or in the criminal jurisprudence requiring the case to be proved beyond reasonable doubt that parameter having not been met benefit of doubt has been granted to the accused. No doubt in that facts of the present case the person who ran the tractor over the deceased lady was one of the other co accused but the role assigned to the others including the respondent herein was not of a mere bystander or being present at site. The attack with knives was alleged against all the other co accused including the respondent We may also notice this is a clear case where the endeavour was to settle the dispute albeit not with the job in mind. This is obvious from the recital in the judgment of the Trial Court that the compoundable offences were first compounded during trial but since the offence under Section 302 34 IPC could not be compounded the Trial Court continued and qua those offences the witnesses turned hostile. We are of the view that this can hardly fall under the category of a clean acquittal and the Judge was thus right in using the terminology of benefit of doubt in respect of such acquittal The judgment in Avtar Singh’s case on the relevant parameter extracted aforesaid clearly stipulates that where in respect of a heinous or serious nature of crime the acquittal is based on a benefit of reasonable doubt that cannot make the candidate eligible. We may also note the submission of learned counsel for the respondent that as per para 38.3 in Avtar Singh’s case the employer has to take into consideration the Government orders instructions rules applicable to the employee at the time of taking a decision. It is her say that the issue whether the circular dated 28.03.2017 would apply or not was res integra in view of the earlier order of the learned Judge dated 14.05.2018. She has further contended that in any case the circular had come into force and as per the judgment in Avtar Singh’s case (supra para 38.4 it is the date of decision which is material and as on the date of decision dated 23.05.2017 the said circular was applicable We may note here that the circular dated 28.03.2017 is undoubtedly very wide in its application. It seeks to give the benefit to candidates including those acquitted by the Court by giving benefit of doubt. However such circular has to be read in the context of the judicial pronouncements and when this Court has repeatedly opined that giving benefit of doubt would not entitle candidate for appointment despite the circular the impugned decision of the competent authority dated 23.05.2017 cannot be said to suffer from infirmity as being in violation of the circular when it is in conformity with the law laid down by this Court We are thus of the view that the impugned orders cannot be sustained and the appellants are well within their rights to have issued the order dated 23.05.2017. The consequence is that the appeal is allowed and the impugned judgment of the Division Bench dated 16.07.2019 and learned Single Judge dated 14.05.2018 are set aside leaving the parties to bear their own costs SANJAY KISHAN KAUL R. SUBHASH REDDY NEW DELHI MARCH 24 2021

Section 86(1)(f) vests a statutory jurisdiction: Supreme court of India

The appellant cannot raise an objection relying on Section 86(1)(f) of the 2003 Act and Section 86(1)(f) vests a statutory jurisdiction with the State Electricity Commission to adjudicate upon disputes between licensees and generating companies and to refer any dispute for arbitration. This judgement was passed by the Hon’ble supreme court of India by Justice Dr Dhananjaya Y Chandrachud in the matter of Chief General Manager (IPC) M P Power Trading Co Ltd & Anr Narmada Equipment’s Pvt Ltd [Civil Appeal No 1051 of 2021]. This appeal arose from a judgment where it appointed an Arbitrator in the dispute between the parties, in an application filed by the respondent under Section 11(6) of the Arbitration and Conciliation Act 1996. The genesis of the matter was from when the Madhya Pradesh Electricity Board3, entered into a Power Purchase Agreement (PPA) on 20 May 1999 with the respondent. Under the PPA, the respondent was to establish a mini hydro-electric project on a built and operate basis. However, the PPA was terminated on 27 September 2001 by the Board. The respondent initially filed a writ petition5 challenging the termination of the PPA. The High Court, by its order dated 4 November 2009, declined to entertain the petition in view of an arbitration agreement contained in Clause 12.36 of the PPA. Thereafter, the respondent filed a review petition which was dismissed by the High Court by an order dated 10 December 2009. The respondent issued a notice to the Board under Clause 12.1 of the PPA, seeking to resolve the dispute by mutual discussion. Since the respondent did not receive a reply to the notice dated 28 December 2009 from the Board, on 30 May 2011, the respondent issued another notice to the Board invoking arbitration under Clause 12.3 of the PPA. In the notice, the respondent stated that if the Board did not act upon the notice within 30 days of its receipt, it would approach the High Court under Section 11(6) of the 1996 Act.  Having received no reply from the Board, an application was filed under Section 11(6) of the 1996 Act by the respondent seeking the appointment of an arbitrator. The court held that “Section 86(1)(f) of the 2003 Act is a special provision which overrides the general provisions contained in Section 11 of the 1996 Act. Section 86(1)(f) vests a statutory jurisdiction with the State Electricity Commission to adjudicate upon disputes between licensees and generating companies and to refer any dispute for arbitration.”

Reportable IN THE CIVIL APPELLATE JURISDICTION Civil Appeal No 10521 Arising out of SLP(C) No 57517) Chief General ManagerM P Power Trading Co Ltd & Anr Appellant(s) Narmada Equipments Pvt Ltd JUDGMENT Dr Dhananjaya Y Chandrachud J Leave granted. This appeal arises from a judgment and order of a learned Single Judge of the High Court of Madhya Pradesh dated 30 November 2016 where it appointed an Arbitrator in the dispute between the parties in an application1 filed by the respondent under Section 11(6) of the Arbitration and Conciliation Act 19962. The genesis of the matter is from when the Madhya Pradesh Electricity Board3 entered into a Power Purchase Agreement4 on 20 May 1999 with the respondent. “AC No 15” “1996 Act” 2 Under the PPA the respondent was to establish a mini hydro electric project on a built and operate basis. However the PPA was terminated on 27 September 2001 by the Board. The respondent initially filed a writ petition5 challenging the termination of the PPA. The High Court by its order dated 4 November 2009 declined to entertain the petition in view of an arbitration agreement contained in Clause 12.36 of the PPA. Thereafter the respondent filed a review petition7which was dismissed by the High Court by an order dated 10 December 2009. As a consequence of the orders dated 4 November 2009 and 10 December 2009 on 28 December 2009 the respondent issued a notice to the Board under Clause 12.1 of the PPA seeking to resolve the dispute by mutual discussion. Since the respondent did not receive a reply to the notice dated 28 December 2009 from the Board on 30 May 2011 the respondent issued another notice to the Board invoking arbitration under Clause 12.3 of the PPA. In the notice the respondent stated that if the Board did not act upon the notice within 30 days of its receipt it would approach the High Court under Section 11(6) of the 1996 Act. Having received no reply from the Board an application8 was filed under Section 11(6) of the 1996 Act by the respondent seeking the appointment of an arbitrator. The High Court by its order dated 21 January 2014 recorded that the respondent “WP No 26402” “12.3 Arbitration: a) If dispute cannot be salted within Thirtyby section 12.1 andto Conciliation is not elected by the Parties pursuant to Section 12.2 of if a Parties so requests in accordance with Section 12.2 the Dispute shall in dally be settled by an Umpire to be appointed by two arbitrators one to be appointed by the Board and other by the Company Provisions of the Indian Arbitration and Conciliation Act 1996 9or any enactment that replaces the said Act) shall apply in such arbitrator. The arbitration proceedings shall be held at head Quarter of the Board i.e. at Jabalpur. b) The award rendered shall apportion the costs of the arbitration. c) The award rendered in any arbitration commended here under shall be final conclusive and binding upon the Parties and award may be entered in any Court having jurisdiction as darned under article 15.1.” “Review Petition No 7109” “AC No 711” 3 and the appellant had agreed to nominate their arbitrators and observed that the two arbitrators would proceed to appoint a third arbitrator in accordance with the procedure in Clause 12.3(a) of the PPA. The nominated Arbitrators fixed their first meeting on 7 May 2014 when both parties appeared and the Arbitrators’ fee was fixed. However the Arbitrators by a letter dated 7 July 2014 highlighted their inability to proceed with the arbitration proceedings on the ground that their fees had not been paid. Thereafter the respondent filed AC No 15 on 8 December 2014 seeking the appointment of an arbitrator under Section 11(6) of the 1996 Act. This application was opposed by the appellant on the ground that in view of the provisions of Section 86(1)(f) of the Electricity Act 20039 it was the State Electricity Commission which was vested with the exclusive jurisdiction to adjudicate upon disputes between licensees and generating companies. By the impugned judgment and order dated 30 November 2016 the Single Judge of the High Court allowed the application filed by the respondent under Section 11(6) of the 1996 Act. The Single Judge held that the remedies under Section 86(1)(f) of the 2003 Act and under Section 11(6) of the 1996 Act are independent of each other and it was open to the High Court to exercise its jurisdiction under Section 11(6). The appellant now comes before this Court in appeal. The submission of the appellant which has been urged before this Court by Mr Varun Chopra learned counsel is that the view which has been taken by the High Court is contrary to the law which has been laid down by a two Judge Bench of this Court in Gujarat Urja Vikas Nigam Limited v Essar Power Limited10. “2003 Act” 2008) 4 SCC 755 hereinafter referred to as “Gujarat Urja Vikas Nigam Limited” 8 Controverting the submissions Mr Sanjay K Agrawal learned counsel appearing on behalf of the respondent however urged that the decision in Gujarat Urja Vikas Nigam Limited would not apply to the facts of the present case since the PPA was executed on 20 May 1999 and the termination by the Board was on 27 September 2001 both of these events have taken place before the enforcement of the 2003 Act on 10 June 2003. It was further urged that the appellant did not raise its objection stemming from Section 86(1)(f) of the 2003 Act when the High Court appointed Arbitrators by the consent of both parties in its order dated21 January 2014 in AC No 711 and also before the Arbitrators so appointed and hence it cannot be raised at this stage. In the present case the notice for the initiation of arbitration under Clause 12.3 of the PPA was issued by the respondent on 30 May 2011. The commencement of the arbitral proceedings by the invocation of the arbitration agreement would therefore relate to 30 May 2011 when the notice invoking Clause 12.3 was issued. Hence the fact that the PPA and the notice of termination predate the 2003 Act would not constitute material circumstances. Section 2111 of the 1996 Act specifies that unless otherwise agreed by the parties the arbitral proceedings in respect of a particular dispute would commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent. Hence there can be no manner of doubt that 30 May 2011 would be the material date since it is on this date that the notice invoking Clause 12.3 was issued by the respondent to the appellant. “21. Commencement of arbitral proceedings.—Unless otherwise agreed by the parties the arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent.” The first issue which is raised in this appeal is governed by Gujarat Urja Vikas Nigam Limitedof the 2003 Act. The Gujarat High Court thereafter appointed an Arbitrator in an application under Section 11(6) of the 1996 Act which was impugned before this Court. Speaking for the two Judge bench Justice Markandey Katju settled the position of law in paragraphs 26 27 and 28 of the judgment which are extracted below for convenience of reference: “26. It may be noted that Section 86(1)(f) of the Act of 2003 is a special provision for adjudication of disputes between the licensee and the generating companies. Such disputes can be adjudicated upon either by the State Commission or the person or persons to whom it is referred for arbitration. In our opinion the word “and” in Section 86(1)(f) between the words “generating companies” and “to refer any dispute for arbitration” means “or”. It is well settled that sometimes “and” can mean “or” and sometimes “or” can mean “and” of the Electricity Act 2003 the word “and” between the words “generating companies” and the words “refer any dispute” means “or” otherwise it will lead to an anomalous situation because obviously the State Commission cannot both decide a dispute itself and also refer it to some arbitrator. Hence the word “and” in Section 86(1)(f) means “or”. 28. Section 86(1)(f) is a special provision and hence will override the general provision in Section 11 of the Arbitration and Conciliation Act 1996 for arbitration of licensee and generating disputes between 6 companies. It is well settled that the special law overrides the general law. Hence in our opinion Section 11 of the Arbitration and Conciliation Act 1996 has no adjudicate arbitrate disputes between licensees and generating companies and only Section 86(1)(f) shall apply in such a situation.” This position has subsequently also been approved by two three Judge benches of this Court in Hindustan Zinc Limited v Ajmer Vidyut Vitran Nigam Limited12 and NHAI v Sayedabad Tea Company Limited13. From the above judgment it is evident that this Court has held that Section 86(1)(f) of the 2003 Act is a special provision which overrides the general provisions contained in Section 11 of the 1996 Act. Section 86(1)(f) vests a statutory jurisdiction with the State Electricity Commission to adjudicate upon disputes between licensees and generating companies and to refer any dispute for arbitration. The “and” between “generating companies” and “to refer any dispute for arbitration” is to be read as an “or” since the State Electricity Commission cannot obviously resolve the dispute itself and also refer it to arbitration. Section 86(1)(f) is extracted “86.Functions of State Commission.— The State Commission shall discharge the following functions namely: adjudicate upon the disputes between the licensees and generating companies and to refer any dispute for arbitration ” 2019) 17 SCC 82 hereinafter referred to as “Hindustan Zinc Limited” 2020) 15 SCC 161 7 Section 174 of the 2003 Act provides overriding effect to the 2003 Act notwithstanding anything inconsistent contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than the 2003Act itself. Section 174 provides thus: “174. Act to have overriding effect. — Save as otherwise provided in Section 173 the provisions of this Act shall have effect notwithstanding anything therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.” We refer now to the second argument raised on behalf of the respondent that the appellant cannot raise an objection relying on Section 86(1)(f) of the 2003 Act in the second application filed by it under Section 11(6) of the 1996 Act when it had not raised the same objection in the first application under Section 11(6) of the 1996 Act or before the Arbitrators so appointed. It is pertinent to note that this argument was rejected by the Single Judge of the High Court in the impugned judgment and order dated 30 November 2016 in the following terms” “9. I will be failing in my duty if the basic objection raised by Shri Manoj Dubey about maintainability of this application is not dealt with. Merely because in earlier round of litigation the objection of maintainability was not taken it will not preclude the other side to raise such objection if it goes to the root of the matter. This is trite law that jurisdiction cannot be assumed by consent of the parties. If a statute does not provide jurisdiction to entertain an application petition the petition cannot be entertained for any reason whatsoever. Thus I am not inclined to hold that since for the reason that in the earlier round of litigation i.e. A.C. No.76 2011 parties reached to a consensus for appointment of Arbitrators this application is also maintainable. I deem it proper to examine whether because of operation of Section 174 of the Act of 2003 the present application under the Act of 1996 is not maintainable.” 8 A similar issue was raised before a three Judge bench of this Court in Hindustan Zinc Limited where an arbitrator was appointed by the State Electricity Commission under Section 86(1)(f) of the 2003 Act with the consent of the parties. Subsequently the arbitral award was challenged under Section 34 of the 1996 Act before a Commercial Court and the Commercial Court’s decision was challenged in an appeal under Section 37 of the 1996 Act where it was held that the State Electricity Commission had no jurisdiction to appoint the arbitrator since Section 86(1)(f) refers to disputes only between licensees and generating companies and not licensees and consumers. When the matter reached this Court the contention was that the objection to jurisdiction could not have been raised in a proceeding under Section 37 of the 1996 Act once the parties had consented to arbitration earlier. Speaking for the Court Justice Rohinton F Nariman held that if there is inherent lack of jurisdiction the plea can be taken at any stage and also in collateral proceedings. He highlighted the well established principle that a decree passed by a court without subject matter jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon. Such a defect of jurisdiction cannot be cured even by the consent of the parties. The above dictum would apply to the present case. In the above view of the matter the order of the High Court appointing an arbitrator under Section 11(6) of the 1996 Act is unsustainable. We accordingly allow the appeal and set aside the impugned judgment and order of the High Court dated 30 November 2016 in AC No 15. However this will not come in the way of the respondent in taking recourse to such remedies as are available in law. However we have expressed no opinion either on the merits or the 9 objections of the appellant which when urged would be considered by the appropriate forum. There shall be no order as to costs. Pending application if any stands disposed of. ….. …...…...…....... ........J. Dr Dhananjaya Y Chandrachud] M R Shah] Sanjiv Khanna] New Delhi March 23 2021 S

Since the petitioner’s case is already under consideration, no further direction needs to be issued: High Court of Uttarakhand.

The case of the petitioner was already under consideration for promotion., hence the court found it fit to not issue any direction. A divisional Bench comprising Hon’ble Justice Sri Raghvendra Singh Chauhan and Justice Alok Kumar Verma, in the matter of Dr. Alok Kumar Srivastava Vs. Uttarakhand Ayurved University and others (WRIT PETITION (S/B) No. 272 of 2021), dealt with an issue where the petitioner has challenged the legality of the advertisement, issued, by the Vice-Chancellor of the Uttarakhand Ayurved University, wherein 2 two posts for Professor, in the Department of Panchkarma, were advertised. In the present case, the petitioner had completed his Graduation (BAMS), in Indian Medicine in 2002, from the Government Ayurvedic College, Varanasi. In 2008, he joined as a Lecturer in the Ayurved and Unani Tibbia College, New Delhi. Subsequently, on 12.01.2011 he again joined the Rishikul Government Ayurvedic College, Haridwar. While the petitioner was teaching at the said College, in 2013 he completed his Ph.D. in Panchkarma. Thereafter, on 20.02.2015 he was promoted to the post of Associate Professor. He was duly nominated as a Professor on 26.12.2016. While he was discharging his academic duties, he also acted as the Deputy Registrar and Proctor of the University. According to the petitioner, the university asked the faculty members to submit their applications for promotion to the post of Professor, as provided under the Career Advancement Scheme under the Uttarakhand Ayurved University Rules and Regulations, 2015. The petitioner had also submitted his application. After a while, the Petitioner also submitted a representation to the University. He was also called for an interview but was later informed that such an interview was been canceled. Further, the petitioner submitted that the University had issued an advertisement for two posts of Professor in the Department of Panchkarma. Thereby upon feeling aggrieved the petitioner filed this writ petition. The counsel for the university submitted that there was an advertisement for 4 posts, 2 posts for promotion, and the other two for direct recruitment. The counsel also pointed that one promotion post was occupied and the other was vacant, for which they were to consider the petitioner. Therefore, according to the counsel, the University is justified in advertising the two posts for direct recruitment. According to him, the case of the petitioner was already under consideration for promotion. Therefore, according to the counsel, the present Writ Petition was highly misplaced. The court observed that- “Since the petitioner’s case is already under consideration against the one vacant promotional post, no further direction needs to be issued by this Court”. Thereby the Writ petition was disposed of. Click Here For The Judgement

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL THE HON’BLE THE CHIEF JUSTICE SRI RAGHVENDRA SINGH CHAUHAN AND THE HON’BLE SRI JUSTICE ALOK KUMAR VERMA WRIT PETITIONNo. 2721 05th AUGUST 2021 Between: Dr. Alok Kumar Srivastava. and Uttarakhand Ayurved University and others. …Respondents Counsel for the petitioner. Mr. P.K. Chauhan the learned counsel. Counsel for the respondent no. Mr. Suyash Pant the learned counsel. Counsel for the respondent nos. 2 and 3. Mr. K.N. Joshi learned Deputy the State of Advocate General Uttarakhand. The Court made the following : JUDGMENT :The petitioner has challenged the legality of the advertisement dated 09.07.2021 issued by the Vice Chancellor of the Uttarakhand Ayurved University wherein two posts for Professor in the Department of Panchkarma were advertised. Briefly the facts of the case are that the petitioner had completed his Graduation in the Indian Medicine in 2002 from the Government Ayurvedic College Varanasi. His name is registered as Doctor with Parishad Pradesh. Subsequently in 2004 he completed his MD from the Banaras Hindu University. Thereafter on 03.07.2005 he joined as a Lecturer in the Rishikul Government Ayurvedic College Haridwar. In 2008 he joined as a Lecturer in the and Unani Tibbia College New Delhi. Subsequently on 12.01.2011 he again joined the Rishikul Government Ayurvedic College Haridwar. While the petitioner was teaching at the said College in 2013 he completed his Ph.D in Panchkarma. Thereafter on 20.02.2015 he was promoted to the post of Associate Professor. He was duly nominated as a Professor on 26.12.2016. While he was discharging his academic duties he also acted as the Deputy Registrar and Proctor of the University. 3. According to the petitioner on 14.02.2020 the faculty members were asked by the University to submit their applications for promotion to the post of Professor as provided under the Career Advancement Scheme under the Uttarakhand Ayurved University Rules and Regulations 2015. Pursuant to the said request the petitioner claims that he had submitted his application for promotion. Although the petitioner has submitted his application for quite some time the University is sitting over the entire issue. Therefore on 09.12.2020 the petitioner had submitted a representation to the University. Even thereafter on 01.02.2021 he has submitted another representation to the University. Consequently he was called for interview on 24.02.2021 for the post of Professor the Department of Panchkarma. However on 23.02.2021 he received a letter from the University informing him that the interview has been cancelled. But no reasons were assigned for the same. Further according to the petitioner on 09.07.2021 suddenly the University has issued an advertisement for two posts of Professor in the Department of Panchkarma. Hence the present writ petition before this Court. 4. Mr. Suyash Pant the learned counsel for the University informs this Court that in fact there are four sanctioned posts of Professor in the Department of Panchkarma. Out of the said four posts two posts are for promotion and two for direct recruitment. Already one promotional post is occupied. However the second post for promotion is lying vacant. Against this very post the name of the petitioner is being considered. Two posts which were for direct recruitment have been advertised by the impugned advertisement. Therefore according to the learned counsel the University is justified in advertising the two posts for direct recruitment. By the impugned advertisement the civil and fundamental rights of the petitioner are not adversely affected. According to him the case of the petitioner is already under consideration for promotion. Therefore according to the learned counsel the present Writ Petition is highly misplaced Mr. P.K. Chauhan the learned counsel for the petitioner requests that the statement of the learned the University should be recorded as abovementioned. Since the petitioner’s case is already under consideration against the one vacant promotional post no further direction needs to be issued by this Court. Therefore the Writ Petition stands disposed of. RAGHVENDRA SINGH CHAUHAN C.J. ALOK KUMAR VERMA J. Dt: 05th AUGUST 2021

Family Court has the authority to appoint a guardian for the minor: Ernakulam High Court: Ernakulam High Court

There is a distinction between jurisdiction of district courts and family courts when it comes to appointment of a guardian for the minor’s property or the minor. Only the Family Court has the authority to appoint a guardian for the minor, the district courts have no authority to do so but they can appoint a guardian for minor’s property. This distinction has been highlighted by Justice A. Mohamed Mustaque and Justice Sophy Thomas in the case of K.S. NARAYANA ELAYATHU V. SANDHYA [MFA NO. 150 OF 2021]. Facts of the case are the mother and father of the minor were living separately as a result of a strained marital relationship while the minor was staying with mother. Sandhya filed an application under Guardian and Wards Act that declared her as the guardian of the person and property of the minor Nivedya which was challenged by the respondent husband as he contended that the district court has no jurisdiction to entertain the petition because this power has been taken by the Family court as per section 7 of family Courts Act. Here the District court stated that when it is the property that is also involved then in such cases the power to adjudicate upon the matter lies with the District Court and this was the order that had been challenged. The question of law settled in the present case was whether the district court has the authority to entertain a petition for appointment of a guardian for the property of the minor and the minor? Here the court drawing comparisons and elaborations upon Family Courts Act section 7(1) explanation (g) said that the authority of the district court in matters related to guardianship, custody the jurisdiction has been given to the Family Court but the High Court highlighted that property is not one of the subjects given under section 7 of Family Courts Act and hence the jurisdiction of settling disputes regarding property related matters of a minor cannot be taken away by the family courts and it shall vest with the district court. The matters regarding guardianship of the minors have been dealt under Family Courts Act section 7 explanation (g) hence their jurisdiction has been taken away by section 8 of the act. District court often overstep their jurisdiction in deciding the matters however we must keep it in mind the object for establishment of family court or any other tribunal. In order to deal with family related issues a distinction has to be made based on the nature of the family dispute, if the dispute is of such nature that it requires the better interest of the family, then the jurisdiction has to be given to the family court and if the family dispute is more of civil nature, then the matters can be adjudicated upon by the civil court and this distinction is not a blurry line but it has been highlighted in the section 7 of the Family Courts Act.  Interest of the well being of the family and long-term stability are subject matters of prime importance and these issues have to be handled in a diplomatic manner because of which we have family courts. Vesting such powers to district courts not only defeats the purpose of establishing the family courts but is also detrimental to the family and society a whole.

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE THE HONOURABLE MRS. JUSTICE SOPHY THOMAS WEDNESDAY THE 22ND DAY OF DECEMBER 2021 1ST POUSHA 1943 AGAINST THE ORDER JUDGMENT IN OPGW 1139 2017 OF VI ADDITIONAL MFA NO. 150 OF 2021 DISTRICT COURT ERNAKULAM K.S.NARAYANA ELAYATHU AGED 45 YEARS S O.LATE SANKARAN ELAYATH KESAMANGALATH ILLOM EROOR DESOM NADAMA VILLAGE THRIPUNITHURA 682 306 BY ADV PAUL K.VARGHESE AGED 38 YEARS D O.SURYANARAYANAN MULLAPPALLY ILLOM PARAPPUKARA VILLAGE MUKUNDAPURAM TALUK THRISSUR DISTRICT 680 BY ADV C.R.REGHUNATHAN THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ON 14.12.2021 THE COURT ON 22.12.2021 DELIVERED THE FOLLOWING: M.F.ANo.1521 A.MUHAMED MUSTAQUE & C.R SOPHY THOMAS JJ M.F.ANo.1521 Dated this the 22nd day of December 2021 JUDGMENT Sophy Thomas J This appeal has been preferred by the respondent in O.P No.1139 of 2017 challenging the proceedings of the Additional District Judge VI Ernakulam dated 22.11.2021 2. O.P No.1139 of 2017 was filed by Smt.Sandhya mother of minor girl Nivedya against the respondent who is the father of the minor and husband of the petitioner. Due to strained marital relationship the petitioner and respondent were living separately and the minor child was staying with her mother. Plaint schedule property was owned by the maternal grandmother of the minor child and it was settled in her favour as per settlement deed No.1766 2012 of SRO Tripunithura. The petitioner wife filed that O.P for declaring her as the guardian of the person and property of the minor Nivedya 3. The respondent husband challenged the jurisdiction of the Family Court in entertaining that petition. He contended that the M.F.ANo.1521 District Court is not having jurisdiction as the entire right of the District Court by virtue of the Guardian & Wards Act has been taken over by the Family Court as per Section 7explanationNo.11317 before the Additional District Court VI Ernakulam for appointing her as the guardian of the person M.F.ANo.1521 and property of the minor child. According to the appellant Section 7(1) explanationof the Family Courts Act 1984 takes away the jurisdiction of the District Court and so the O.P is not maintainable before that court. Moreover he has filed OP No.931 of 2019 before the Family Court Muvattupuzha for getting custody of the minor child and it is still pending. 8. Section 7 of the Family Courts Act 1984 lays down that a family Court shall have and exercise all jurisdiction exercisable by any District Court or any subordinate civil Court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation which inter alia includes according to clause a suit or proceeding in relation to the guardianship of the person or the custody of or access to any minor. Section 8 of the Family Courts Act specifically says that where a family Court has been established for any area no District Court or any subordinate civil Court referred to shall in relation to such area have or exercise any jurisdiction in respect of such suits or proceedings referred to in the Explanation which includes clause g). No.1521 custody of or access to any minor the jurisdiction of the District Court is taken away by the Family Courts Act as per Section 7(1 explanation of the Family Courts Act 1984. But when the question involved relates to appointment of guardian in respect of the property of minor the Family Court has no jurisdiction as that dispute is not coming under explanationto Section 7(1). 10. In Devi Lal Bhagat vs. Rekha Bhagat reported in 2008KLT SN 14the Jharkhand High Court held that on a bare reading of Section 7(1) explanationof the Family Courts Act 1984 and Section 9 of the Guardian & Wards Act 1890 it is manifestly clear that the suits and proceedings including the suit or proceeding where any question of guardianship of the person of any minor or his custody or access to him arises whether governed by any personal law or the provisions to the Guardians and Wards Act would be cognizable only by the Family Court if the mater arises within the area over which the jurisdiction is exercisable by the Family Court. The Family Court has no jurisdiction if the question involved relates to appointment of guardian in respect of the property of a minor whether under personal law or any other law for the time being in force. However in such suits or proceedings where question of appointment of a guardian for both purposes namely person and property of a minor M.F.ANo.1521 is involved the Family Court would have no jurisdiction as Clause g) of the Act does not include proceeding in relation to property of a minor . 11. A Single Bench of this Court had occasion to consider a similar issue in Anitha Abraham vs. Jacob Oommen reported in 2003KLT 417 in which this Court found that the Family Court has no jurisdiction to entertain an application to appoint a person as guardian of the property of the minor. The judgments in Susila Naik vs. Judge Family Court Rourkelaand in Kamal V.M Allaudin vs. Raja Shaikh explanationof the Family Courts Act and it is pending consideration of that court. But in O.PNo.1521 the property of the minor no doubt the jurisdictional District Court has to entertain that petition. 13. Section 7 of the Guardian & Wards Act 1980 empowers the jurisdictional District Court to appoint a guardian of the person or property or both of a minor or to declare a person to be such a guardian if the court is satisfied that it is for the welfare of the minor. Section 8 of the Guardian & Wards Act sets out the class of persons on whose application alone the court can exercise the power vested in it by Section 7. The court is exercising parens patriae jurisdiction to ensure the welfare and well being of the minor. 14. Now let us see whether the District Court can entertain a suit or proceeding in relation to the guardianship of the person or the custody of or access to any minor when the jurisdiction of the District Court is taken away by the Family Court as per Section 7(1) explanationof the Family Courts Act. The Family Courts are set up for the settlement of family disputes to exclusively provide within the jurisdiction of the Family Courts the matters relating to matrimonial relief including nullity of marriage judicial separation divorce restitution of conjugal rights or declaration as to the validity of marriage or as to the matrimonial status of any person the property of the spouses or of either of M.F.ANo.1521 them declaration as to the legitimacy of any person guardianship of a person or the custody of any minor maintenance etc. etc. as seen from the statement of objects and reasons in the bill presented for the enactment of the Family Courts Act. The nature of suits and proceedings coming within the jurisdictional competence of a Family Court is enumerated in Section 7 of the Family Courts Act. When parties to a marriage or an erstwhile marriage seek guardianship of the person or the custody of or access to their minor children it is exclusively a suit or proceeding coming under explanationto Section 7(1) of the Family Courts Act and then the jurisdiction of a District Court or Subordinate Civil Court is taken away as per Section 8 of the Family Courts Act which “8. Exclusion of jurisdiction and pending proceedings. Where a Family Court has been established for any area no district court or any subordinate Civil Court referred to in sub sectionof section 7 shall in relation to such area have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the Explanation to that sub section no magistrate shall in relation to such area have or exercise any jurisdiction or powers under Chapter IX of the Code of Criminal Procedure 1973No.1521 every suit or proceeding of the nature referred to in the Explanation to sub section of section 7 and every proceeding under Chapter IX of the Code of Criminal Procedure 1973which is pending immediately before the establishment of such Family Court before any District Court or subordinate Court referred to in that sub section or as the case may be before any Magistrate under the said Code and ii) which would have been required to be instituted or taken before or by such Family Court if before the date on which such suit or proceeding was instituted or taken this Act had come into force and such Family Court had been established shall stand transferred to such Family Court on the date on which it is established” 15. In the case in hand the mother of the minor child approached the District Court to appoint her as the guardian of the person and property of the minor daughter Nivedya. The relief for appointing her as the guardian of the person of the minor is exclusively coming under explanation to Section 7(1) of the Family Courts Act and so the jurisdiction of the District Court with respect to that relief is taken away by the jurisdictional Family Court. The respondent father has already filed a petition before the Family Court for getting custody of the minor daughter. If the District Court also is proceeding for appointment of guardian of the M.F.ANo.1521 person of the minor it may result in conflicting decisions. So as far as the dispute between parties to an erstwhile marriage regarding guardianship of the person or the custody of or access to their minor child the jurisdiction of the District Court is taken away by the Family Court. The fact that a court cannot appoint a guardian of the person is no bar for appointing a guardian of the property. Since the question regarding guardianship of the person of the minor between the parents of the minor is to be decided by a Family Court the District Court cannot decide on that issue especially when the proceedings initiated by the appellant for getting guardianship and custody of the minor child is pending consideration before a Family Court. In case of overlapping jurisdiction it may result in contradictory orders which may affect the welfare and well being of the child which is of paramount consideration. In suits or proceedings of the nature coming under explanation to Section 7(1) the Family Court alone will get jurisdiction and the jurisdiction of the District Court is ousted going by Section 8 of the Family Courts Act. 16. As far as the impugned proceedings of the District Court dated 22.11.2021 is concerned with respect to the jurisdiction to entertain the petition for appointing guardian for the property of the minor there is no illegality or impropriety which warrants our M.F.ANo.1521 interference. But with respect to the appointment of guardian of the person of the minor the District Court has no jurisdiction as it is a dispute squarely coming under explanationto Section 7(1 of the Family Courts Act. So to that extent the proceedings of the District Court is liable to be set aside. The District Court can proceed with the O.P for appointing guardian for the property of the minor and not for the person of the minor. This appeal is allowed in part to that extent. The District Court is directed to dispose the case as expeditiously as possible. The parties shall suffer their respective costs. A.MUHAMED MUSTAQUE

Pension will not be calculated on the basis of years of practice: High Court Of New Delhi

Do’s 10 years of practice is necessary for calculating the pension in addition to qualifying service of the applicant as Member Judicial of the Railway Claims Tribunal for pension and also the same was held in the judgement passed by a single bench judge comprising HON’BLE SRI JUSTICE  V. KAMESWAR RAO, in the matter, AJIT KUMAR PANDA V. UNION OF INDIA [W.P.(C) 1201/2021], dealt with an issue mentioned above. The petitioner was enrolled as an Advocate with the Bar Council of Delhi on April 24, 1990. He also cleared the exam for Advocates on Record and was duly enrolled as such on October 15, 1998. On April 20, 2015, the petitioner was appointed to the post of Member (Judicial) Kolkata Bench of Railway Claims Tribunal (‘RCT’, for short), Later on, June 10, 2019, he was transferred to the Gauhati Bench of the RCT where he worked till W.P.(C) 1201/2021 Page 3 of 16 he completed his five years’ tenure on April 21, 2020. He mentioned that in terms of Section 5 of the Railway Claims Tribunal Act, 1987, which stipulates qualifications for appointment as Chairman, Vice-Chairman and other Members; a person shall not be qualified for appointment as a Member unless he is qualified to be a Judge of a High Court, He stated that since the issue of gratuity is pending before the Supreme Court, he is not making a prayer concerning the said claim. The claim in this petition is primarily concerning the counting of 10 years of practice as an Advocate to calculate pension in addition to qualifying service of the petitioner as Member (Judicial) of the RCT, for pension. And also mentioned few supporting cases on his behalf that is – Union of India and Anr. v. Shankar Raju, LPA 286/2019, and also of Supreme Court in Government of NCT of Delhi and Ors. v. All India Young Lawyers Association (Registered) and Anr., (2009) 14 SCC 49. He also stated that, at the time of relinquishment of Charge, he requested the Hon’ble Chairman of the RCT, Principal Bench on April 20, 2020, praying for two reliefs; firstly his entitlement of gratuity under the provisions of the Payment of Gratuity Act, 1972 and calculation of pension after taking into account 10 years of practice at the Bar, because of the aforesaid judgments. Mr Jagjit Singh learned counsel for the respondents would submit that the petitioner was appointed as Member (Judicial) in RCT as per provisions of the Act of 1987 and as such, his appointment was governed by the Rules of 1989. Paragraph 3 of the appointment letter dated April 20, 2015, issued by the Ministry of Railways to the petitioner mentions that the service conditions including pension as Member (Judicial) in RCT shall be governed by the terms and conditions of his appointment, And also mentioned that Section 8 of the Rules of 1989 stipulates that every person appointed to the Tribunal as W.P.(C) 1201/2021 Page 7 of 16 Chairman, Vice-Chairman or member, shall be entitled to a pension. Insofar as the claim of the petitioner for counting of 10 years of practice as an Advocate for calculation of pension in RCT by relying upon the judgment of this Court in Shankar Raju (supra) and also of Supreme Court in All India Young Lawyers Association (supra) is concerned. Insofar as the Tribunal Rules of 2020 framed by the Central Government are concerned, there is no provision of pension for Members of any Tribunal in India. Later it was clear that the Supreme Court while upholding the grant of benefit for counting the period of practice put in at the Bar by an Advocate has directed that 10 years of practice be given to a direct recruitee, who joins the service and has worked minimum for 10 years in the service before retiring. The court perused the facts and argument’s presented, it thought that- “It is an admitted case of the petitioner that he was appointed before February 12, 2020. If that be so, the terms and conditions of appointment of the petitioner as Member (Judicial) RCT shall necessarily be governed under the Rules of 1989 which have been implemented in his favour. Because of my above discussion, the petitioner is not entitled to any relief. The petition is dismissed”. Click here for judgment

% IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: October 04 2021 W.P.(C) 1201 2021 AJIT KUMAR PANDE EX MEMBERRCT Petitioner In person UNION OF INDIA THROUGH: CHAIRMAN RAILWAY BOARD Through: Mr. Jagjit Singh Sr. Panel Respondent Counsel with Mr. Preet Singh Mr. Vipin Chaudhary & Ms. Rashmi Malhotra Advs. HON BLE MR. JUSTICE V. KAMESWAR RAO V. KAMESWAR RAO JThe present petition has been filed by the petitioner with the following prayers: “The Petitioner therefore prays that in the facts and circumstances of the present case this Hon ble Court may be pleased to: a) issue writ of mandamus certiorari or any other appropriate writ or Direction in the like nature to the Respondent Direct the Respondents to grant the benefit of the judgments passed by the Hon’ble Delhi High Court in a judgment LPA 286 2019 titled as Union of India Vs. Shankar Raju & Government of NCT Delhi W.P.(C) 1201 2021 Vs. All India Young Lawyers Association14 SCC 49” and take into account 10 years of practice for the purposes of calculating the pension in addition to qualifying service of the applicant as Member Judicial of the Railway Claims Tribunal for pension and issue writ of mandamus certiorari or any other b) appropriate writ or Direction in the like nature to the Respondent And further to direct the respondents to grant the pension so calculated after taking into petitioner demitted office i.e. 21.04.2020 and pass such other and further orders as this c) Hon ble Court may deem fit and proper in the facts and circumstances of the case.” It is the case of the petitioner and so contended by him the practice period the date that he was enrolled as an Advocate with the Bar Council of Delhi on April 24 1990. He also cleared the exam for Advocates on Record and was duly enrolled as such on October 15 1998. On April 20 2015 the petitioner was appointed to the post of Member Kolkata Bench of Railway Claims Tribunal ‘RCT’ for short). He joined the said post on April 22 2015. He continued to work in the Kolkata Bench of the RCT till January 18 2016. On January 19 2016 the petitioner was transferred to the Secunderabad Bench of the RCT where he worked till January 19 2018. Thereafter on June 10 2019 he was transferred to the Gauhati Bench of the RCT where he worked till W.P.(C) 1201 2021 he completed his five years’ tenure on April 21 2020. It is the submission of the petitioner that his appointment was governed by the Notification dated September 10 1989 of the Ministry of Railways by which the Railway Claims Tribunal Salaries and Allowances and Conditions of Services of Chairman Vice Chairman and Members) Rules 1989 were notified. He stated that in terms of Section 5 of the Railway Claims Tribunal Act 1987 which stipulates qualifications for appointment as Chairman Vice Chairman and other Members a person shall not be qualified for appointment as a Memberunless he is or has been or is qualified to be a Judge of a High Court. According to him in view of the said provision he was selected for the post of MemberRCT being found as qualified to be a Judge of a High Court and as per Article 217 of the Constitution of India the qualifications needed for appointment to the post of a Judge of a High Court is that one must have at least 10 years of practice as an Advocate. He stated that since the issue of gratuity is pending before the Supreme Court he is not making a prayer with regard to the said claim. W.P.(C) 1201 2021 According to him the claim in this petition is primarily with regard to counting of 10 years of practice as an Advocate for the purpose of calculating pension in addition to qualifying service of the petitioner as Member of the RCT for pension. In support of this claim the petitioner has relied upon the judgment of the Division Bench of this Court in Union of India and Anr. v. Shankar Raju LPA 286 2019 and also of Supreme Court in Government of NCT of Delhi and Ors. v. All India Young Lawyers Associationand Anr. 14 SCC 49. He stated the above judgments fundamentally relate to grant of benefit of 10 years of practice as an Advocate to the Officers of the Delhi Higher Judicial Serviceand the Members of the Central Administrative Tribunalwho were appointed from the Bar. In other words he is seeking a similar benefit as was given to the Officers of DHJS Member of CAT. He stated that respondent No.3 directed the calculation of the pension of the petitioner through the Gauhati Bench on March 24 2020 without taking into account the experience at the Bar which is contrary to the law. W.P.(C) 1201 2021 He also stated at the time of relinquishment of Charge he made a request to the Hon’ble Chairman of the RCT Principal Bench on April 20 2020 praying for two reliefs firstly his entitlement of gratuity under the provisions of the Payment of Gratuity Act 1972 and also for calculation of pension after taking into account 10 years of practice at the Bar in view of the aforesaid judgments. The respondent Nos.1 and 2 declined to accept the judgments of this Court and the Supreme Court and have denied the benefit through a letter dated August 04 2020 in communication to the Registrar RCT by stating as under: Dated: 04.08.2020 “The Registrar Railway Claims Tribunal 13 15 Mall Road Delhi 54. Sub: Request for Gratuity and Pension by Shri A.K. Pande Ex MemberRCT Guwahati. Please refer to your letter dated 10.07.2020 quoted above on the subject. It may be mentioned that there is no provision of gratuity in “Railway Claims Tribunal Salaries and Allowance and Conditions of Service of Chairman. Vice Chairman and Members) Rules 1989." Further the service conditions of Members of RCTare different from that of Central Administrative Tribunal 1201 2021 taking into account 10 years practice period of Advocate who are elevated to High Court Judges which was applicable for CAT Members) is not applicable to Members of RCT as per extant RCT Rule 1989. Accordingly Shri A. K. Pande may be informed that he is not entitled for payment of gratuity as per extant Rule 1989. RCT PB has informed in their letter dated 10.07.2020 that the pension of Shri A. K. Pande has been processed as per RCT Rule 1989.” The petitioner has taken me through the judgments of this Court in Shankar Rajuand also of Supreme Court in All India Young Lawyers Association in RCT as per provisions of the Act of 1987 and as such his appointment was governed by the Rules of 1989. Paragraph 3 of the appointment letter dated April 20 2015 issued by the Ministry of Railways to the petitioner mentions that the service conditions including pension as Memberin RCT shall be governed by the terms and conditions of his appointment. He also stated that Section 8 of the Rules of 1989 clearly stipulates that every person appointed to the Tribunal as W.P.(C) 1201 2021 Chairman Vice Chairman or Member shall be entitled to a pension provided that no such pension shall be payable to such a person: if he has put in less than two years of service orif he has been removed from an Office in the Tribunal under sub sectionof Section 8 of the Act of 1987. Mr. Jagjit Singh stated that the pension is calculated at the rate of Rs.40 836 per annum for each completed year of service and is subject to the condition that the aggregate amount of pension payable together with the amount of any pension including commuted portion of pensiondrawn or entitled to be drawn while holding office in the Tribunal shall not exceed Rs.13 50 000 per annum and the provisions of the Rules of 1989 are uniformly implemented with regard to the Vice Chairman Members of the Tribunal. Insofar as the claim of the petitioner for counting of 10 years of practice as an Advocate for calculation of pension in RCT by relying upon the judgment of this Court in Shankar Raju supra) and also of Supreme Court in All India Young Lawyers Association is concerned he stated the same have no applicability as they have been passed with regard to the Officers W.P.(C) 1201 2021 of DHJS and also Member who retired from CAT. That apart he stated that the appointment of the Member of the CAT was governed by the Administrative Tribunals Act 1985 and the same was last amended w.e.f. February 19 2007 by which the service conditions of Member of CAT was brought at par with the Judges of the High Courts whereas the petitioner on his appointment continued to be governed by the service conditions for Member of RCT which are at variance with the Service Conditions of Member of CAT. A Member of the RCT has not been equated with the Judges of the High Court. He stated he cannot even seek parity with the Officers of DHJS. Insofar as the Tribunal Rules of 2020 framed by the Central Government are concerned there is no provision of pension for Members of any Tribunal in India. But in any case the petitioner being governed by the provisions of the Act of 1987 and also the Rules of 1989 has rightly been granted the pension in terms thereof. Having heard the learned counsel for the parties the issue which arises for consideration is a very short one whether the W.P.(C) 1201 2021 petitioner is entitled to the counting of 10 years of practice at the Bar along with the qualifying period put in by him as Member Judicial) in RCT. Reliance was placed by the petitioner on the judgment of this Court in Shankar Raju and also of Supreme Court in All India Young Lawyers Associationwas concerning the Officers of the DHJS who were appointed to the service being Advocates practicing at the Bar. The Supreme Court while reducing the period from 15 years to 10 years has not interfered with respect to the grant of benefit of counting of the period of practice put in by an Advocate by stating as under: “5. In the Delhi Higher Judicial Service direct recruitment to 25% of posts is made from amongst the members of the Bar who have completed seven years practice at the Bar. The minimum age for entry is thirty five years and the maximum age is 45 years. The main contention of the writ petitioner before the High Court was to include the fifteen years practice at the Bar. If a candidate joins at the age of 35 years and retires at the age of 60 years if not elevated to the Bench of the High Court he would not be able to get full pension as for getting full pension one should have thirty three years of service whereas the total service rendered by a member who joins at the age of 35 years will be twenty five years of W.P.(C) 1201 2021 6. The High Court on the administrative side brought this fact to the notice of the Government by writing a letter in the year 1987. Though repeated reminders were sent to the Government no decision was taken by the Government till the end of 2005 and only on 2 2 2006 by a letter the Government has indicated that it was agreeable to give weightage of seven years of practice at the Bar while computing the pension and other retiral benefits for direct recruits. 7. Learned counsel appearing for the State contended that the reason why the Government has agreed to give weightage of seven years practice at the Bar is that because in the case of direct recruitments to the Delhi Higher Judicial Service a member should have seven years practice at the Bar and that is why the Government thought it fit to give weightage of seven 8. Learned counsel appearing for the first respondent Association submitted that the High Court was right in directing the Government to give weightage of fifteen years practice at the Bar while computing pension and other retiral benefits because otherwise most of the members of the Delhi Higher Judicial Service would not be able to get full or adequate reasonable pension at the time of retirement. It is also submitted that better conditions of service should be made available to the persons who are direct recruitees from the Bar otherwise the best talent would not be attracted for 9. Learned counsel appearing for Respondent 2 High Court of Delhi has also brought to our notice the fact that the request was made by the High Court in the year 1987 and despite repeated reminders Government has acceded to the request only in the year 2006 by its Letter dated 2 2 2006. It is also brought to our notice by the learned counsel appearing for Respondent 2 that in the States of Punjab Haryana W.P.(C) 1201 2021 and Gujarat weightage of ten years practice at the Bar is given in the case of direct recruits while computing pension and other retiral benefits. 10. We have considered the various contentions raised before us. Learned counsel appearing for the State vehemently contended that only the period of seven years practice at the Bar is to be added because the minimum qualification to enter into the Delhi Higher Judicial Service as a direct recruit is seven years practice at the Bar. That reason by itself does not appear to be justifiable as the total period of service for getting maximum or full pension is thirty three years as per the general rules of the Government of 11. Learned counsel for the State submitted that if fifteen years practice at the Bar is added then there is an apprehension that after joining the Delhi Higher Judicial Service and working for a shorter period members may quit the job because even after working for a shorter period they will get the proportionate pension if their past practice of 15 years at the Bar is 12. Having regard to the facts of the case and having heard learned counsel for the parties we deem it appropriate that 10 years practice at the Bar or such other number of years whichever is less could be added while computing pension and other retiral benefits in the case of a direct recruit to the Delhi Higher Judicial Service. We order accordingly. 13. Insofar as apprehension of learned counsel for the State is concerned we make it clear that weightage of ten years practice at the Bar will be given only if the direct recruit who joins the Delhi Higher Judicial Service actually works for minimum ten years in the Delhi Higher Judicial Service and then retire so as to enable them to get reasonable adequate pension at the time of retirement because as per the general rules to be eligible for minimum pension a person should have W.P.(C) 1201 2021 completed at ten years of service. The Government of NCT of Delhi is directed to suitably insert Rule 26(B) in the Delhi Higher Judicial Service Rules 1970.” From the above it is clear that the Supreme Court while upholding the grant of benefit for counting the period of practice put in at the Bar by an Advocate has directed that 10 years of practice be given to a direct recruitee who joins the service and has worked minimum for a period of 10 years in the service before retiring. I may state here that joining the service between the ages of 35 to 45 years a DHJS Officer puts in at least 15 years of service before demitting the office which is not the case here since the appointment of the petitioner was only for a period of five years and upon completion of five years he demitted the office. This plea that he being qualified to be a High Court Judge was appointed as Memberand as such 10 years of practice at the Bar need to be counted for the pension is unmerited for the reason that the pension as a Membershall still be governed by the Rules of 1989 which have been implemented in his favour and he is drawing pension. In any case the judgment of the Supreme Court was concerning Officers of the DHJS which is not the case here. W.P.(C) 1201 2021 The reliance placed by the petitioner on the judgment of Shankar Raju is also of no help to the petitioner. Mr. Jagjit Singh is right in contending that the Administrative Tribunals Act 1985 was amended to bring the conditions of service for Member in CAT at par with the Judges of the High Court. The issue before the Division Bench of this Court in Shankar Raju was whether the benefit of the amendment which was brought about on February 19 2007 should also be given to the Member who was appointed before that date from the Bar. The argument on behalf of the Union of India was that there are two classes of Member Judicial) in the CAT those appointed prior to February 19 2007 and those appointed thereafter and therefore they cannot be treated at par for grant of pension. This plea was negated by this Court in paragraphs 21 and 22 wherein the Court has held as under: “21. The Court is unable to agree with the submission. The question here is not about the eligibility to be appointed as Memberof the CAT. Here the question is about adding 10 years of practice at the bar to the qualifying service for the purposes of pension. It is nobody‟s case that Respondent did not fulfil the eligibility condition for being appointed as Member of the CAT and being given a W.P.(C) 1201 2021 17. further extension for another 5 years. Those appointed as Members from the bar prior to 19th February 2007 and those appointed thereafter form the same class. They are from the same source. The object of the amendment brought about with effect from 19th February 2007 is to treat such Members appointed from the bar no different from those appointed from the bar as Judges of the High Court. Even for the purposes of pension as is evident from the response of the DOPT there was to be no difference between Members appointed from the bar and those appointed from the bar as Judges of the High Court. What is sought to be done is to take the date 19th February 2007 as a marker for creating two classes of Members based on their dates of appointment. This creating of a „class within a class‟ is not based on any intelligible differentia. It defeats the objective of equating Members of CAT with Judges of the High Court for the purposes of their terms and conditions of service. 22. Once the legislature decided to equate the terms of service of Members of the CAT with that governing Judges of the High Court it is plain that among Members of CAT there can be no discrimination between those appointed prior to 19th February 2007 and those appointed thereafter only for the purposes of pension. They do not come from different sources but from the same source i.e. the bar. The law in relation to this is well settled.” Finally this Court in paras 29 and 30 has held as under: “29. In the present case there was no introduction of a new scheme of pension on 19th February 2007. On the contrary the conscious decision to equate the terms of services of the Chairman and Members of the CAT with those of High Court Judges was given effect to. By denying those appointed as Membersof the CAT prior to 19th February 2007 the benefit of adding the years of practice at the bar to the qualifying W.P.(C) 1201 2021 service for pension the Respondents are in fact seeking to divide one class of persons viz. Members Judicial) of CAT into two groups and subjecting them to different treatment. This has been held to be impermissible in a large number of decisions including D.S. Nakara v. Union of India 1 SCC 305 Krishna Kumar v. Union of India 4 SCC 207 Indian ExServices League v. Union of India 2 SCC 104 V. Kasturi v. Managing Director State Bank of India(1998) 8 SCC 30 and Union of India v. Dr. Vijayapurapu Subbayamma7 SCC 662. 30. Consequently this Court finds no error having been committed by the learned Single Judge in negating the plea of the Appellant that for the purposes of pension Members of the CAT appointed prior to 19th February 2007 and serving as such on that date would not be entitled to add 10 years of their practice in the bar to the qualifying service.” In view of the aforesaid conclusion of the High Court the petitioner cannot seek the benefit of the judgment in the case of Shankar RajuNo. 804 2020 rendered on November 27 2020 wherein the Supreme Court while considering the Tribunal Rules of 2020 which were notified on February 12 2020 held Chairpersons Vice Chairpersons and Members of the Tribunals appointed prior to February 12 2020 shall be governed by the parent Statutes W.P.(C) 1201 2021 and Rules as per which they were appointed. It is an admitted case of the petitioner that he was appointed prior to February 12 2020. If that be so the terms and conditions of appointment of the petitioner as MemberRCT shall necessarily be governed under the Rules of 1989 which have been implemented in his favour. In view of my above discussion the petitioner is not entitled to any relief. The petition is dismissed. No costs. OCTOBER 04 2021 ak V. KAMESWAR RAO J W.P.(C) 1201 2021

Writ petition challenging the order of penalty of removal of service dismissed on less merit- Jharkhand high court

Writ petition challenging the order of penalty of removal of service dismissed on less merit- Jharkhand high court An instant writ petition was filed by the petitioner challenging the order of penalty of removal of service of petitioner from the post of Circle Head, Punjab National Bank, Mumbai City and disqualification for future employment. The writ petition was heard and dismissed by a single judge bench of HON’BLE MR. JUSTICE Dr. S. N. PATHAK in the case of Sanjay Kumar Prasad versus Punjab national bank and Ors. (W. P. (S) No. 3326 of 2020) The crux of the case is that regular departmental proceedings were initiated against the petitioner who was on the post of Circle Head in Punjab National Bank and three charges were leveled against the petitioner under regulation 6 of Punjab National Bank Officer Employees (Discipline & Appeal) Regulations, 1977. The petitioner replied to these charges and the committee found some charges proved and some unproved further the petitioner was given another chance to reply to the charges and after this the committee passed a penalty and with the major penalty of removal from service, which shall not be a disqualification for future employment, in terms of Regulation 4(i) of the PNB Officer Employees (D &A) Regulations, 1977 further the petitioner applied in appellate court against this decision and the court rejected the appeal. the present writ petition is filed against this decision. The learned counsel appearing on behalf of the petitioners submits against the order of removal and on the territorial issue that the territorial jurisdiction depends upon attending facts and circumstances of a particular case and the petitioner has contested his appeal from Ranchi and proceedings of appeal is also part of departmental proceedings hence the cause of action lies in Ranchi and is under the jurisdiction of this court. the counsel submitted the case of Navinchandra N. Majithia Vs. The state of Maharashtra, reported in (2000) 7 SCC 640 and Shanti Devi Vs. Union of India & Ors. reported in (2020) 10 SCC 766 to buttress his submissions. the counsel further submits that the order of removal has no ground as The fraud took place on account of system failure as the Bank could not envisage such fraud and no system was developed to detect such fraud and the petitioner being the circle head was made a scapegoat in the case and Learned senior counsel further assails that the impugned orders deserve to be quashed and set aside on the ground of parity itself. The learned counsel appearing on behalf of the bank submits that No cause of action has arisen within the territorial jurisdiction of the State of Jharkhand and hence, this Court does not have jurisdiction to decide the writ petition and also submits that the Bank has taken preliminary objection of maintainability of this writ petition, as no cause of action or part of the cause of action has arisen within the territorial jurisdiction of the State of Jharkhand and relies on the judgment of Oil and Natural Gas Commission Vs. Utpal Kumar Basu & Ors. reported in (1994) 4 SCC 711 and demands to dismiss the writ petition for having no territorial jurisdiction and Learned counsel submits that there is no procedural irregularity pointed out by the petitioner in the facts and circumstances of the present case and it is a clear case of loss of confidence on account of the petitioner jeopardizing the Bank’s interest and hence, the writ petition deserves to be dismissed. The learned court decides that the original order was made at Mumbai, but communications were made with the petitioner at his parental residence at Ranchi. Therefore, the part of the cause of action has arisen in the State of Jharkhand, and as such the High Court of Jharkhand has jurisdiction and the petitioner did not observe due diligence and did not follow the guidelines of the bank and authorities and because of which the fraud was committed. This court finds that the petitioner has violated regulations 3(1) & 3 (3) read with Regulation 4(i) of the PNB Officer Employees’ (D&A) Regulations, 1977, and dismissed the writ petition for having no merit.

W. P.No. 3326 of 2020 IN THE HIGH COURT OF JHARKHAND AT RANCHI Sanjay Kumar Prasad Punjab National Bank Head Office at Plot No.4 Sector 10 Dwarka New Delhi 110075. Versus … Petitioner ..... 2. Managing Director cum Chief Executive Officer Punjab National Bank .…. … Respondents Head Office 1st Floor B. Wing Sector 10 Dwarka New Delhi 110075. Executive Director Human Resource Division Punjab National Bank Corporate Office at 1st Floor B. Wing Plot No.4 Sector 10 Dwarka New Delhi 110075. CORAM : HON’BLE MR. JUSTICE Dr. S. N. PATHAK For the Petitioner For the Respondents CAV ON : 24.11.2021 M s K. N. Choubey Senior Advocate Rajendra Krishna & Vishal Kumar Tiwary Advs. M s Manoj Tandon & P.A.S. Pati & Rohan Kashyap Advocates PRONOUNCED ON : 02.02.2022 Dr. S.N. Pathak J: Heard Mr. K.N. Choubey learned Senior Counsel assisted by Mr. Rajendra Krishna and Mr. Vishal Kumar Tiwary advocates for the petitioner and Mr. Manoj Tandon learned counsel assisted by Mr. P.A.S. Pati and Mr. Rohan Kashyap advocates appearing on behalf of respondent Bank. In the instant writ petition the petitioner has challenged the order of penalty of removal from service dated 27.1.2020 passed by the appellate authority rejecting the appeal of the petitioner is also under challenge. The petitioner further prayed for reinstatement in service with all consequential benefits. Factual Matrix 3. The facts as delineated in the writ petition are that while the petitioner was posted as Circle Head Punjab National Bank Mumbai City he was proceeded with regular departmental proceeding by framing a memo of charge dated 23.1.2019 under Regulation 6 of Punjab National Bank Officer Employees Regulations 1977. Altogether three charges were levelled against the petitioner under different headings. The petitioner submitted his reply denying the charges levelled against him. The Enquiry Officer 2 W.P.(S) No. 33220 submitted the enquiry report on 17th October 2019 holding some of charges proved and some of them not proved. The petitioner was given an opportunity to submit reply to the said enquiry report. Thereafter the petitioner replied thereto. The disciplinary authority passed the penalty order on 27.1.2020 with major penalty of removal from service which shall not be a disqualification for future employment in terms of Regulation 4(i) of the PNB Officer EmployeesRegulations 1977. Thereafter an appeal was preferred by the petitioner on 27.2.2020. The appeal of the petitioner was however rejected by the appellate authority on 25.6.2020. It is the specific case of the petitioner that he is the permanent resident of Ranchi having address given in the cause title that he received the impugned letters of removal by the disciplinary authority as well as the appellate authority at his permanent address in Ranchi in the State of Jharkhand and he is permanently residing in Ranchi and hence part of cause of action lies in the State of Jharkhand on account of receiving of the impugned orders and as such this Court had jurisdiction to entertain the writ petition. The respondent Punjab National Bank filed its counter affidavit raising preliminary objection on the ground that this Court lacks the territorial jurisdiction as no cause of action has arisen within the territorial jurisdiction of this Court. Mere receiving of impugned letters of removal by disciplinary authority as well as appellate authority would not be sufficient for the part the cause of action to arise in the State of Jharkhand. This petitioner was working as Deputy General Manager Priority Sector and Financial Inclusion Division Punjab National Bank Head Office Sector 10 Dwarka New Delhi. The entire disciplinary proceeding was commenced and concluded at New Delhi. The entire cause of action arose within the State of Delhi and not in the State of Jharkhand. Mere receiving letters in the State of Jharkhand will not give cause of action in the State of Jharkhand. On merits it has been stated that the power of judicial review in a disciplinary proceeding of the Court under Article 226 of the Constitution of India is limited. The petitioner was holding an important post of Branch Head Brady House at the time when entire irregularities took place. The petitioner failed to discharge his duty of a responsible officer which led to loss of crores of rupees of the public money at Bank. The Bank therefore has passed the penalty of removal from service which however will not be a disqualification for future employment. Arguments advanced by Petitioner. 6. Mr. K.N. Choubey learned Senior Counsel appearing for the petitioner before assailing the order of removal since preliminary objection has been raised by the respondent Bank addresses the Court on the point of jurisdiction: i) On the jurisdictional issue it has been submitted by Mr. Choubey learned senior counsel appearing for the petitioner that the territorial jurisdiction depends upon attending facts and circumstances of a particular case. After the petitioner was removed from service he had left with no option but to shift at his parental house at Ranchi. The petitioner has preferred his appeal from Ranchi and contested the same from Ranchi itself and it is well known that the proceeding of appeal is also a part of the departmental proceeding. Therefore the part of cause of action lies at Ranchi. ii) To buttress his arguments learned senior counsel places heavy reliance on the decision of the Hon ble Supreme Court of India in the case of Navinchandra N. Majithia Vs. State of Maharashtra reported in7 SCC 640. The petitioner has also relied upon the judgments in the cases of Shanti Devi Vs. Union of India & ors. reported in 10 SCC 766 State of Punjab Vs. Balbir Singh reported on AIR 1977 SC 629 Tavancore Rayon Ltd. Vs. Union of India reported in3 SCC 869 State of West Bengal Vs. Atul Krishna Shaw reported in AIR 1990 SC 2205 and Jawahar Lal Singh Vs. Naresh Singh reported in2 SCC 222. On merits it has been argued that in view of the procedural laches and discriminating approach of the Bank Authorities the order of removal has no legs to stand on the following grounds: The fraud took place on account of system failure as the Bank could not envisaged such fraud and no system was developed to detect such fraud. The petitioner was informed by AGM Brady House that there could be chances of issuance of unauthorized LOU in favour of Nirav Modi of Gitangajli Group. Therefore the petitioner being the Circle Head ordered the preliminary enquiry in the matter. The petitioner has been made scapegoat in the present case. ii) Learned senior counsel further assails that the impugned orders deserve to be quashed and set aside on the ground of parity itself. He submits that the 4 W.P.(S) No. 33220 petitioner was slapped with the penalty of removal from service whereas other similarly situated co delinquents were awarded the lesser penalty though the case of the petitioner stands at similar footing to that of the other Branch Heads excluding Rajesh Jindal. iii) Referring to Circulars dated 24.9.2010 and 15.3.2014 which relate to definition of second man and the responsibility of the second man at the branches learned senior counsel submits that before imposing penalty upon the petitioner the disciplinary authority ought to have ascertained whether the loss is due to omission or commission of the concerned employee and also the past history of the charged employee was to be considered. It is further contended that the petitioner joined in the year 1986 as Management Trainee and has unblemished career record. Arguments advanced by Respondent Bank 8. Mr. Manoj Tandon learned counsel assisted by Mr. P.A.S. Pati advocate appearing on behalf of the respondent Bank submits that the petitioner has not been able to make out a case for interference by this Court. He submits that cause of action arose at Mumbai i.e. the State of Maharastha or Delhi. No cause of action has arisen within the territorial jurisdiction of the State of Jharkhand and hence this Court does not have jurisdiction to decide the writ petition. Learned counsel further adds that mere receiving letters in the State of Jharkhand will not give the cause of action in this Court. The petitioner may be residing within the territorial jurisdiction of this Court but on this count alone the writ petition may not be entertained. Mr. Tandon refers the various paragraphs of the counter affidavit wherein the Bank has taken preliminary objection of maintainability of this writ petition as no cause of action or part of cause of action has arisen within the territorial jurisdiction of the State of Jharkhand. To fortify his submission Mr. Tandon refers a decision of the Hon ble Supreme Court of India in the case of Oil and Natrual Gas Commission Vs. Utpal Kumar Basu & Ors. reported in 4 SCC 711. He also places reliance of order dated 26.2.2019 passed in W.P.(S) No. 40717 by this Court whereby the writ petition was dismissed on the point of territorial jurisdiction. On merit Mr. Tandon refers to the memo of charge dated 23.1.2019 wherein altogether three charges under different headings were levelled against the petitioner. He submits that considering the reply submitted by the petitioner the enquiry officer submitted the enquiry report on 17.10.2019. Thereafter the petitioner was given 5 opportunity to submit his reply to the second show cause which he duly submitted. After considering the reply of the petitioner the penalty order was passed on 27.1.2020. The petitioner preferred appeal against the penalty order and after considering the appeal the appellate authority rejected the same on 25.6.2020. Learned counsel submits that there is no procedural irregularity pointed out by the petitioner in the facts and circumstances of the present case and it is a clear case of loss of confidence on account of the petitioner jeopardizing the Bank s interest and hence the writ petition deserves to be dismissed. Findings of the Court 9. Having heard learned counsel for the parties and after going through the records I find that though in the facts of this case the petitioner was imposed capital punishment of removal from service after a full fledged proceeding but before delving into the merits of the case it would be appropriate to examine the issue of territorial jurisdiction. The issue fell for consideration before the Hon ble Apex Court in the case of Om Prakash Srivastava v. Union of India reported in 2006) 6 SCC 207 wherein it was observed as under: “6. Clause of Article 226 of the Constitution is of great importance. It reads as follows: “226. The power conferred by clause to issue directions orders or writs to any Government authority or person may also be exercised by any High Court exercising territories within which the cause of action wholly or in part arises for the exercise of such power notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.” in relation 7. The question whether or not cause of action wholly or in part for filing a writ petition has arisen within the territorial limits of any High Court has to be decided in the light of the nature and character of the proceedings under Article 226 of the Constitution. In order to maintain a writ petition a writ petitioner has to establish that a legal right claimed by him has prima facie either been infringed or is threatened to be infringed by the respondent within the territorial limits of the Court’s jurisdiction and such infringement may take place by causing him actual injury or threat thereof. 8. Two clauses of Article 226 of the Constitution on plain reading give clear indication that the High Court can exercise power to issue direction order or writs for the enforcement of any of the fundamental rights conferred by Part III of the Constitution or for any other purpose if the cause of action 6 W.P.(S) No. 33220 wholly or in part had arisen within the territories in relation to which it exercises jurisdiction notwithstanding that the seat of the Government or authority or the residence of the person against whom the direction order or writ is issued is not within the said territories. 9. By “cause of action” it is meant every fact which if traversed it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. In other words a bundle of facts which it is necessary for the plaintiff to prove in order to succeed in the suit. In a generic and wide sense “cause of action” means every fact which it is necessary to establish to support a right to obtain a judgment. It is settled law that “cause of action” consists of a bundle of facts which give cause to enforce the legal inquiry for redress in a court of law. In other words it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to claim relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action would possibly accrue or would arise. 15. In Halsbury’s Laws of England it has been stated as follows: “ ‘Cause of action’ has been defined as meaning simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed and every fact which a defendant would have a right to traverse. ‘Cause of action’ has also been taken to mean that a particular act on the part of the defendant which gives the plaintiff his cause of complaint or the subject matter of grievance founding the action not merely the technical cause of action.” 10. Further the Hon ble Apex Court while dealing with on the issue of territorial jurisdiction in the case of Shanti Devi v. Union of India reported in 2020) 10 SCC 766 held as follows: “17. Mulla on the Code of Civil Procedure while commenting on Section 20 of the Civil Procedure Code defined cause of action in the following words: “12. Cause of action.—The expression “cause of action” has acquired a judicially settled meaning. In the restricted sense “cause of action” means circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense it means the necessary conditions for the maintenance of the suit including not only the infraction of the right but 7 coupled with Compendiously the expression means every fact by which it would be necessary for the plaintiff to prove if traversed in order to support his right to the judgment of the court.” 18. P. Ramanatha Aiyar in Advanced Law Lexicon 3rd Edn. Vol. 1 has defined the cause of action in the following words: “Cause of action” has been defined as meaning simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed and every fact which a defendant would have a right to traverse. “Cause of action” has also been taken to mean that particular act on the part of the defendant which gives the plaintiff his cause of complaint or the subject matter of the grievance founding the action not merely the technical cause of 19. Black’s Law Dictionary defines the cause of action in the following words: “A group of operative facts giving rise to one or more bases for suing a factual situation that entitles one person to obtain a remedy in court from another person …” 20. This Court had occasion to consider the cause of action in the context of Article 226 of the Constitution and has explained the expression “cause of action” in a large number of cases. We may refer to a three Judge Bench judgment of this Court in ONGC v. Utpal Kumar Basu where in paras 5 and 6 following has been laid down:“5. Clause of Article 226 begins with a non obstante clause — notwithstanding anything Article 32 — and provides that every High Court shall have power ‘throughout the territories in relation to which it exercises jurisdiction’ to issue to any person or authority including in appropriate cases any Government “within those territories” directions orders or writs for the enforcement of any of the rights conferred by Part III or for any other purpose. Under clause of Article 226 the High Court may exercise its power conferred by clauseif the cause of action wholly or in part had arisen it exercises territory over which jurisdiction notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories. On a plain reading of the aforesaid two clauses of Article 226 of the Constitution it becomes clear that a High Court can exercise the power to issue directions orders or 8 W.P.(S) No. 33220 writs for the enforcement of any of the fundamental rights conferred by Part III of the Constitution or for any other purpose if the cause of action wholly or in part had arisen within the territories in relation to which it exercises jurisdiction notwithstanding that the seat of the Government or authority or the residence of the person against whom the direction order or writ is issued is not within the said territories. In order to confer jurisdiction on the High Court of Calcutta NICCO must show that at least a part of the cause of action had arisen within the territorial jurisdiction of that Court. That is at best its case in the writ petition. 6. It is well settled that the expression “cause of action” means that bundle of facts which the petitioner must prove if traversed to entitle him to a judgment in his favour by the court. In Chand Kour v. Partab Singh Lord Watson said:‘… the cause of action has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff. It refers entirely to the grounds set forth in the plaint as the cause of action or in other words to the media upon which the plaintiff asks the court to arrive at a conclusion in his favour.’ Therefore in determining the objection of lack of territorial jurisdiction the court must take all the facts pleaded in support of the cause of action into consideration albeit without embarking upon an enquiry as to the correctness or otherwise of the said facts. In other words the question whether a High Court has territorial jurisdiction to entertain a writ petition must be answered on the basis of the averments made in the petition the truth or otherwise whereof being immaterial. To put it differently the question of territorial jurisdiction must be decided on the facts pleaded in the petition. Therefore the question whether in the instant case the Calcutta High Court had jurisdiction to entertain and decide the writ petition in question even on the facts alleged must depend upon whether the averments made in Paras 5 7 18 22 26 and 43 are sufficient in law to establish that a part of the cause of action had arisen within the jurisdiction of the Calcutta High emphasis in original) 21. This Court in Navinchandra N. Majithia v. State of Maharashtra had occasion to consider territorial jurisdiction the High Court under Article 226(2). Dealing with constitutional amendment made in Article 226(2) this Court laid down the following in para 37:9 “37. The object of the amendment by inserting clause 2) in the article was to supersede the decision of the Supreme Court in Election Commission v. Saka Venkata Raoand to restore the view held by the High Courts in the decisionscited above. Thus the power conferred on the High Courts under Article 226 could as well be exercised by any High Court exercising jurisdiction in relation to the territories within which ‘the cause of action wholly or in part arises’ and it is no matter that the seat of the authority concerned is outside the territorial limits of the jurisdiction of that High Court. The amendment is thus aimed at widening the width of the area for reaching the writs issued by different High Courts.” 11. From the aforesaid judicial pronouncements it can very conveniently be inferred that in the instant case though the original order was made at Mumbai but communications were made with the petitioner at his parental residence at Ranchi. Therefore the part of cause of action has arisen in the State of Jharkhand and as such the High Court of Jharkhand has jurisdiction. 12. Now on the point of merits upon perusal of the impugned order of removal from service of the petitioner question arises as to whether same warrants interference or not. The Court is not prejudiced by the fact that the memo of charge was issued on 23.1.2019 in relation to fraud committed by Mr. Nirav Modi and Mehul Choksiand other related accounts but it has to be looked into as to how the petitioner who was heading the Branch in the capacity of Deputy General Manager cum Circle Head Mumbai City was responsible for the aforesaid fraud. In the impugned order it has been clearly mentioned that removal from service would not be a disqualification for future employment in terms of Regulation 6 of Punjab National Bank Officer Employees Regulations 1977. Much has been argued by learned senior counsel appearing for the petitioner that it is a case of no evidence but from perusal of the enquiry report which is at page 330 331 of the writ petition it appears that sufficient evidence was brought on record and consequently eighteen charges were found proved which cannot be said to be without evidence. Nothing is reflected from the records that there is no evidence in the case at hand. This Court sitting under Article 226 of the Constitution of India cannot re appreciate the evidences for coming to a conclusion that the petitioner was not guilty of the charges. Admittedly the same is impermissible in 10 W.P.(S) No. 33220 the eyes of law. In plethora of judgments rendered by the Hon ble Apex Court as well as by this Court including in the case of State Bank of India Vs. Ram Lal Bhaskar & Anr. reported in 10 SCC 249 the Hon ble Apex Court in paragraphs 12 and 14 held as under: “12. This Court has held in State of A.P. v. S. Sree Rama Rao: AIR pp. 1726 27 para 7) “7. … The High Court is not constituted in a proceeding under Article 226 of the Constitution a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf and whether the rules of natural justice are not violated. Where there is some evidence which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence.” 13. Thus in a proceeding under Article 226 of the Constitution the High Court does not sit as an appellate authority over the findings of the disciplinary authority and so long as the findings of the disciplinary authority are supported by some evidence the High Court does not reappreciate the evidence and come to a different and independent finding on the evidence. This position of law has been reiterated in several decisions by this Court which we need not refer to and yet by the impugned judgment the High Court has reappreciated the evidence and arrived at the conclusion that the findings recorded by the enquiry officer are not substantiated by any material on record and the allegations levelled against Respondent 1 do not constitute any misconduct and that Respondent 1 was not guilty of any Further in the case of State of U.P. & Anr. Vs. Manmohan Nath Sinha & Anr. reported in 8 SCC 310 the Hon ble Apex Court held in para 15 as under: “15. The legal position is well settled that the power of judicial review is not directed against the decision but is confined to the decision making process. The court does not sit in judgment on merits of the decision. It is not open to the High Court to reappreciate and reappraise the evidence led before the inquiry officer and examine the findings recorded by the inquiry officer as a court of appeal and reach its own conclusions......” 11 In State Bank of Bikaner and Jaipur Vs. Nemi Chand Nalwaya reported in4 SCC 584 the Hon ble Supreme Court observed as follows: “the Courts will not interfere with findings of fact recorded in departmental enquiries except where such findings are based on no evidence or where they are clearly perverse..... The Courts will however interfere with the findings in disciplinary matters if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary capricious mala fide or based on extraneous In the instant case nothing has been brought on record that there is violation of principles of natural justice or statutory regulations. Though the learned senior counsel appearing for the petitioner has tried to impress upon this Court that PNB Officer Employees Regulations 1977 has been violated but the Court is not at all inspire confidence with the submission of the learned senior counsel as sufficient materials have been brought on record by the enquiry officer and the same has been agreed upon by the disciplinary authority as well as the appellate authority. Learned senior counsel has failed to establish that there was procedural laches on the part of the enquiry officer or the disciplinary as also the appellate authorities. Neither any fault has been pointed nor argued. While referring to the issue of parity it has been argued that the persons having similar charges were given different punishments but whether the charges as mentioned in the charge sheet were same and similar to that of other persons like Vimlesh Kumar Circle Head Virendra Singh predecessor and Dinesh Bhardwaj immediate successor have not been brought on record. Without placing the material with respect to other co delinquents who have been awarded the lesser penalty the parity cannot be claimed and in absence of the same that ground is also not available to the petitioner. The Bank is the competent authority to consider and decide the same. However in a case where crores of rupees of the Bank has been misappropriated the petitioner failed to discharge his duty to stop such fraud of huge magnitude. Further the Court cannot even interfere on the quantum of punishment sitting under Article 226 of the Constitution of India. The Hon ble Apex Court in the case of Delhi Police through Commissioner of Police & Ors. Vs. Sat Narayan Kaushik reported in 2016SCC 303 held as follows: 12 W.P.(S) No. 33220 “15.Coming to the first two submissions of the learned counsel for the appellant we are of the view that High Court in exercise of its writ jurisdiction has power to interfere with the quantum of punishment imposed by the appointing authority in an appropriate case provided the High Court has taken into consideration the totality of the facts and circumstances of the case such as nature of charges levelled against the employee its gravity seriousness whether proved and if so to what extent entire service record work done in the past remaining tenure of the delinquent left etc. In other words it is necessary for the High Court to take these factors into consideration before interfering in the quantum of the punishment. 17. In our view the finding on this issue appears to be just and proper and does not call for any interference in our appellate jurisdiction. We accordingly reject the first and second It is well settled principle of law that when the management has lost confidence on the employee the question of reinstatement or reducing the quantum of punishment does not arise. In the instant case the Bank has lost confidence on the Deputy General Manager the post of which the petitioner was holding and as such the interference is not warranted in the punishment of dismissal. In the case of Kanhaiyalal Agrawal Vs. Factory Manager Gwaliar Sugar Co. Ltd reported in AIR 2001 SC 3645 the Supreme Court laid down the test for loss of confidence to find out as to whether there was bona fide loss of confidence in the employee namely the workman is holding the position of trust and confidence by abusing such position he commits act which results in forfeiting the same andto continue him in service establishment would be embarrassing and inconvenient to the employer or would be detrimental to the discipline or security of the establishment. Loss of confidence cannot be subjective based upon the mind of the management. The loss of confidence can be based on objective facts which would lead to a definite inference of apprehension in the mind of the management regarding trustworthiness or reliability of the employee. Further in the case of Divisional Controller KSRTCVs. A.T. Mane reported in 3 SCC 254 the Supreme Court held the loss of confidence to be a primary factor to be taken into consideration. The Supreme Court further held that when a person is guilty of misappropriating employer s funds there is nothing wrong in the employer losing confidence in an employee. The relevant portion of the said judgment is reproduced hereunder: 13 12. Coming to the question of quantum of punishment one should bear in mind the fact that it is not the amount of money misappropriated that becomes a primary factor for awarding punishment on the contrary it is the loss of confidence which is the primary factor to be taken into consideration. In our opinion when a person is found guilty of misappropriating corporation s fund there is nothing wrong in the corporation losing confidence or faith in such a person and awarding a punishment of dismissal." Further the Hon ble Supreme Court on the point of loss of confidence in the case of State Bank of Bikaner & Jaipur Vs. Nemi Chand Nalwayaheld as follows: 8. When a court is considering whether the punishment of termination from service" imposed upon a bank employee is shockingly excessive or disproportionate to the gravity of the proved misconduct the loss of confidence in the employee will be an important and relevant factor. When an unknown person comes to the bank and claims to be the account holder of a long inoperative account and a bank employee who does not know such person instructs his colleague to transfer the account from "dormant" to "operative" category without any kind of verification and accepts the money withdrawal form from such person gets a token and collects the amount on behalf of such person for the purpose of handing it over to such person he in effect enables such unknown person to withdraw the amount contrary to the banking procedures and ultimately if it transpires that the person who claimed to be the account holder was an impostor the bank cannot be found fault with if it says that it has lost confidence in the employee concerned. A bank is justified in contending that not only the employees who are dishonest but those who are guilty of gross negligence are not fit to continue in its service." In Torrent Power Ltd. Vs. Chelabhai Nathanbai Luhar reported in 2018 SCC OnLine Guj 3580 the Gujarat High Court examined the relevant case law on termination for loss of confidence and summarized the legal principles which are reproduced hereunder: 10. The principle of law which emerges from the above cited judicial pronouncements can be summarized thus: 10.1. Once the employer has lost the confidence in the employee and the bona fide loss of confidence is affirmed the order of discharge must be considered to be immune from challenge for the reason that discharging the office of trust and confidence requires absolute integrity and in such a case of loss of confidence reinstatement cannot be directed.” 14 W.P.(S) No. 33220 The Hon ble Apex Court in the case of Karnataka SRTC v. M.G. Vittal Rao reported in1 SCC 442 held in para 25 as follows: “25. Once the employer has lost the confidence in the employee and the bona fide loss of confidence is affirmed the order of punishment must be considered to be immune from challenge for the reason that discharging the office of trust and confidence requires absolute integrity and in a case of loss of confidence reinstatement cannot be directed.” In the peculiar facts and circumstances of the case in which the charge sheet was issued to the petitioner in relation to fraud committed by Nirav Modi and Mehul Choksi and other related accounts since the petitioner did not observe due diligence and did not follow RBI FEMA DGFT Bank s guidelines and did not ensure proper monitoring and control of FEX business transactions of Branch Office MCB Brady House Mumbai and he did not discharge his duties diligently and honestly due to which a fraud of huge magnitude was perpetrated to the Bank and accordingly jeopardizing Bank s interest it can conveniently be inferred that in view of Regulation 3(1) & 3 read with Regulation 4(i) of the PNB Officer Employees Regulations 1977 no lesser punishment than the removal from service is warranted in the instant case. As a sequel to the aforesaid observations rules guidelines and legal propositions this Court is of the considered view that the writ petition has no merit and resultantly it fails and the same is hereby dismissed.

Court granted bail to the petitioner after 46 days of custody who was held in the possession of MDMA : High Court of Kerala

Petitioner was granted bail after 46 days of custody as the continued detention is not necessary for the purpose of investigation and no criminal antecedents are reported against the petitioner subjected to certain conditions upheld by High Court of Kerala through the learned bench led by HONOURABLE MR. JUSTICE GOPINATH P. in the case of SHIHABUDHEEN vs. STATE OF KERALA (BAIL APPL. NO. 1618 OF 2022) on 18th March, 2022. Facts of the case are that The petitioner is the accused in Crime No. 120 of  which was registered alleging commission of offence punishable under Section 22(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985. And the allegations against the petitioner is that while the petitioner was travelling along with the 1st accused, on the basis of some suspicion, the Sub Inspector of Police, Thondernadu Police Station, stopped the car and searched the 1st accused and found 0.62 grams of MDMA from him. Learned counsel for the petitioner submit that going by the materials on record, there is no recovery of contraband from the petitioner. It is submitted that the petitioner is absolutely innocent in the matter and that the only allegation against the petitioner is that a Rs.10/- note, which contains traces of MDMA, was recovered from the petitioner. It is further submitted that the petitioner has been in custody for 46 days as on today and that his continued detention is not necessary for the purpose of any investigation. Public prosecutor vehemently opposes grant of bail. The circumstances appearing in the case are pointed out from records. It is submitted that the MDMA along with a glass pipe and the Rs.10/- note mentioned above were recovered from the possession of the accused. It is further submitted that there are sufficient materials to show that the petitioner and the 1 st accused were involved in the use of MDMA. Regard to the facts and circumstances of the case, the court grant bail to the petitioner as no criminal antecedents are reported against the petitioner. And  continued detention of the petitioner does not appear to be necessary for the purpose of any investigation on certain conditions – The petitioner shall execute bond for a sum of Rs.50,000/- with two solvent sureties each for the like sum to the satisfaction of the jurisdictional court and Petitioner shall appear before the investigating officer whenever called upon to do so and shall not involve in any other crime while on bail.

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE GOPINATH P FRIDAY THE 18TH DAY OF MARCH 2022 27TH PHALGUNA 1943 BAIL APPL. NO. 1618 OF 2022 CRIME NO.120 2022 OF THONDERANADU POLICE STATION WAYANAD SHIHABUDHEEN AGED 30 YEARS SH HOUSE PAYYANNUR KANKOL PAYYANNUR KANNUR DISTRICT PIN 670307 ABRAHAM GEORGE JACOB STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM PIN 682031 SUB INSPECTOR OF POLICE THONDERNADU THONDERNADU POLICE STATION WAYANAD PIN BY PUBLIC PROSECUTOR SRI. T.R. RENJITHof the Narcotic Drugs and Psychotropic Substances Act 1985 3. The allegation against the petitioner is that while the petitioner was travelling along with the 1st accused on the basis of some suspicion the Sub Inspector of Police Thondernadu Police Station stopped the car and searched the 1st accused and found 0.62 grams of MDMA from him. 4. The learned counsel for the petitioner would submit that going by the materials on record there is no recovery of contraband from the petitioner. It is submitted that the petitioner is absolutely innocent in the matter and that the only allegation against the petitioner is that a Rs.10 note which contains traces of MDMA was recovered from the petitioner. It is further submitted that the petitioner has been in custody for 46 days as on today and that his continued detention is not necessary for the purpose of any BA No.1618 2022 5. The learned Public Prosecutor vehemently opposes grant of bail The circumstances appearing in the case are pointed out from records. It is submitted that the MDMA along with a glass pipe and the Rs.10 note mentioned above were recovered from the possession of the accused. It is further submitted that there are sufficient materials to show that the petitioner and the 1 st accused were involved in the use of MDMA 6. Having regard to the facts and circumstances of the case and considering the fact that the petitioner has been in custody for 46 days I am inclined to grant bail to the petitioner. I also take note of the fact that no criminal antecedents are reported against the petitioner. The continued detention of the petitioner does not appear to be necessary for the purpose of any investigation In the result the bail application is allowed and it is directed that the petitioner shall be released on bail subject to the following a) The petitioner shall execute bond for a sum of Rs.50 000 Rupees fifty thousand only) with two solvent sureties each for the like sum to the satisfaction of the jurisdictional BA No.1618 2022 b)Petitioner shall appear before the investigating officer in Crime No. 120 of 2022 of Thondernadu Police Station Wayanad District whenever called upon to do so c) The petitioner shall not attempt to interfere with the investigation or to influence any witness in Crime No. 1222 of Thondernadu Police Station Wayanad District d)The petitioner shall not involve in any other crime while on If any of the aforesaid conditions is violated the investigating officer in Crime No. 1222 of Thondernadu Police Station Wayanad District may file an application before the jurisdictional court for cancellation of bail

The Court relied on Prima Facie of the offense and dismissed the petition and hence held it as not maintainable under Court of Law: High Court Of Patna

The Petitioner was alleged of mixing the drinks with the alcohol beyond the prescribed limit. The Court denied the petition and held it as not maintainable under the court of law. The Hon’ble High Court of Patna before Justice Mr. Ahsanuddin Amanullah in the matter Aniket Singh v. The State of Bihar[Criminal Miscellaneous No. 37686 of 2020].  The facts of the case are that the petitioner was apprehended arrest in connection with Case, instituted under Section 30(a) of the Bihar Prohibition and Excise Act, 2016. It was alleged that the petitioner from Hotel Welcome owned by him only had 534 cans each containing 300 ML of fruit beer with 0.6-0.8% of alcohol content recovered from there. The Learned Counsel for the Petitioner had submitted that the case of mala fide and for this reasoning the chemical examination reports revealed that the percentage of alcohol by volume varied from 0.6-0.8% which was well under the limit by any drink as classified in the provisions. The learned Counsel added,”… the word “alcoholic beverage or potable liquor”, under Section 2(4) of the Act, has been considered and it has been held that the Act prohibits “intoxicant or liquor containing alcohol of any strength and purity as per the definition of ‘alcoholic’ under Section 2(3) of the Act” and simultaneously, it does not prohibit sale, etc. of non-alcoholic substances in conformity with the standard set by the BIS, in view of the definition and clarification contained under Sections 2(4) and 2(6) of the Act. Thus, it was submitted that both sections, if read together, would show that in the present case whatever has been recovered would not constitute an offence under the Act.”  The Additional Public Prosecutor contended that the drinks recovered from the petitioners come under the mentioned percentage of the Act. Also, the drinks were delivered by someone else to the hotel from which the recovery of the drinks has been affected. The Hon’ble High Court of Patna held,” Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, the Court finds that for the purposes of consideration of the present petition, a prima facie offense is required to be seen whether made out under the Act. In the present case, when as per notification dated 19.03.2018, issued by the Ministry of Home and Family Welfare (Food Safety and Standard Authority of India), the alcoholic beverage has been specified as containing more than 0.5 % ethanol and in the present case, the percentage of ethanol being 0.6 to 0.8, prima facie, an offense is made out under the Act. The Act further stipulates that the owner of the premises would also be liable for such recovery. The Court would pause here to indicate that though such presumption is rebuttable, but it has to be at the stage of trial where it has to be proved that the accused had no concern with the recovered article which can be done only upon adducing evidence and the stage would be clearly at the time of trial.” The court relies on the prima facie of an offence and the present petition eas under Section 438 of Code Of Criminal Procedure, 1973 would not be maintainable due to bar of Section 76(2) of the Act. The petition was hence dismissed as not maintainable.

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 376820 Arising Out of PS. Case No. 354 Year 2020 Thana SHERGHATI District Gaya Aniket Singh aged about 28 years Male the Owner of Hotel Welcome Son of Sanjay Singh Resident of Gola Bazar Sherghati PS Sherghati District The State of Bihar ... Petitioner s ... Opposite Party s For the Petitioner s For the State Mr. Shivendra Prasad Advocate Mr. Umesh Lal Verma APP CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 06 08 2021 The matter has been heard via video conferencing 2. Heard Mr. Shivendra Prasad learned counsel for the petitioner and Mr. Umesh Lal Verma learned Additional Public Prosecutorfor the State 3. The petitioner apprehends arrest in connection with Sherghati PS Case No. 3520 dated 28.07.2020 instituted under Section 30(a) of the Bihar Prohibition and Excise Act 2016of the Act has been considered and it has been held that the Act prohibits “intoxicant or liquor containing alcohol of any strength and purity as per the definition of ‘alcoholic’ under Section 2(3) of the Act” and simultaneously it does not prohibit sale etc. of non alcoholic substances in conformity with the standard set by the BIS in view of the definition and clarification contained under Sections 2(4) and 2(6) of the Act. Thus it was submitted that both sections if read together would show that in the present case whatever has been recovered would not constitute an offence under the Act. Learned counsel submitted that petitioner does not have any other criminal antecedent 6. On 16.07.2021 the Court had called upon learned APP to seek instructions on the aforesaid submissions of the Today a communication from the Senior Superintendent of Police Gaya has been brought on record in Patna High Court CR. MISC. No.376820 dt.06 08 2021 which it has been stated that as per notification dated 19.03.2018 issued by the Ministry of Health and Family Welfarealcoholic beverage has been specified to be a liquor or brew containing more than 0.5 ethanol and thus the recovery of the fruit beer in which ethyl alcohol content was 0.6% to 0.8% V V comes within the purview of the Act. It has further been stated that the recovery of the drink of Kingfisher Budweiser and Hrineken Company containing ethyl alcohol in the aforesaid percentage clearly would be covered under the Act 7. Learned counsel for the petitioner submitted that the fruit beer seized had been given to Lallan Yadav by M s Kumar Construction which was the distributor of fruit beer and Lallan Yadav had occupied the room of the petitioner’s hotel from which recovery has been effected and thus the petitioner cannot be held liable for such recovery 8. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties the Court finds that for the purposes of consideration of the present petition a prima facie offence is required to be seen whether made out under the Act. In the present case when as per notification dated 19.03.2018 issued by the Ministry of Home and Family Welfare Patna High Court CR. MISC. No.376820 dt.06 08 2021 Food Safety and Standard Authority of India) alcoholic beverage has been specified as containing more than 0.5 % ethanol and in the present case the percentage of ethanol being 0.6 to 0.8 prima facie an offence is made out under the Act. The Act further stipulates that the owner of the premises would also be liable for such recovery. The Court would pause here to indicate that though such presumption is rebuttable but it has to be at the stage of trial where it has to be proved that the accused had no concern with the recovered article which can be done only upon adducing evidence and the stage would be clearly at the time of trial 9. Thus the Court finds that prima facie an offence having been made out under the Act the present petition under Section 438 of the Code of Criminal Procedure 1973 would not be maintainable due to bar of Section 76(2) of the Act 10. In the aforesaid background the petition stands dismissed as not maintainable 11. Interim protection granted to the petitioner under order dated 16.07.2021 stands vacated (Ahsanuddin Amanullah J

Affair not discharging the promise of marriage cannot be held as misrepresentation: Supreme Court of India

Supreme Court acquitted the accused in the matter concerning whether failure to marry proves that the appellant never intended to marry and had fraudulently misrepresented to gain sexual favours held by Justice Navin Sinha in the case of Maheshwar Tigga Vs State of Jharkhand [Criminal Appeal no 635 of 2020 (Arising out of SLP (Crl.) No.393 of 2020)]. The accused belongs to the Scheduled caste while the respondent prosecutrix follows Christianity. The respondent had lodged a complaint against the accused a few days prior to the marriage of the accused with some other girl. The complaint was filed under the charge of assault and rape alleging that four years ago the appellant had outraged her modesty at knife-point. The delay in the filing of the complaint was justified by the appellants promise to marry the respondent and failure to come to a settlement. The respondent claimed to be of 14 years of age when the first incident of alleged rape had taken place. Considering the testimony, the Trial Court had convicted the appellant with a total of 8 years and 1-month imprisonment along with a fine. Further Jharkhand High Court rejected the appeal. Hence, the appellants approached the Supreme Court. The contention of the appellant was that they were in a love relationship and had engaged in consensual intercourse without any misrepresentation of facts. The letters written by both the appellant and the respondent were examined and by the language of the letters, it is clear that both were involved in an affair which they hoped to consummate into a marriage. Also, as alleged there is no evidence regarding the age of the respondent concerning the first incident of rape. According to the medical examiner, the respondent was aged approximately 25 years and as per the testimony of the respondent’s cousin who is 30 years of age the respondent is 6 years younger to him. No school records were also provided to prove that the respondent was underage at the alleged first incident. The contention of the respondent is that after the first incident of rape and assault the respondent parents approached the appellant who promised them to marry the respondent. Owing to such promise the respondent further had intercourse and lived with the appellant for 15 days. The respondent claimed that the appellant never had the intention of marrying her and used her for his desires. The Court observed that the accused was questioned in a very brief and casual manner. Placing reliance on Naval Kishore Singh v. State of Bihar [(2004) 7 SCC 502], it was held, “Under Section 313 Crpc the accused should have been given opportunity to explain any of the circumstances appearing in the evidence against him. At least, the various items of evidence, which had been produced by the prosecution, should have been put to the accused in the form of questions and he should have been given the opportunity to give his explanation. It is only after the entire evidence is unfurled the accused would be in a position to articulate his defence and to give an explanation to the circumstances appearing in the evidence against him. Such an opportunity being given to the accused is part of a fair trial and if it is done in a slipshod manner, it may result in imperfect appreciation of evidence.” Supreme Court referred to the recent case of Dhruvaram Murlidhar Sonar vs. The State of Maharashtra and Others [AIR 2019 SC 327] and in Pramod Suryabhan Pawar vs. State of Maharashtra and another [(2019) 9 SCC 608]  which dealt in similar circumstances where the relationship originated in a love affair, developed over a period of time accompanied by physical relations, consensual in nature, but the marriage could not fructify because the parties belonged to different castes and communities,  the Court had quashed the proceedings. Failure of the respondent to prove the age and by examining the letters exchanged between the parties it is evident that they were in love and wished to marry but the respondent was aware of them belonging to different religion and thus failure to marry cannot prove that the appellant never intended to marry and had fraudulently misrepresented only in order to establish physical relation with her. The Court held that consent given under a misconception of fact is no consent in the eyes of law. But the misconception of fact has to be in proximity of time to the occurrence and cannot be spread over a period of four years. Hence, the contention of rape and assault cannot be sustained as there are discrepancies between the facts alleged. Thus, the accused was acquitted. Click here to read the judgement

The prosecutrix PW9 lodged FIR No. 25 of 1999 on 13.04.1999 alleging that four years ago the appellant had promising to marry her and on that pretext continued to established physical relations with her. Five days prior to the lodging of the F.I.R the appellant had established physical The Additional Judicial Commissioner Ranchi on committed rape upon her at the point of a knife. He did not prosecutrix their photographs together and the statement of the Learned senior counsel Mrs. V. Mohana on behalf of the the prosecutrix as also those written by her to the appellant marked as Exhibits during trial more than sufficiently were consensual in nature occasioned by their love affair. No offence under Section 375 IPC is therefore made out. The very casual and perfunctory leading to denial of proper the Scheduled Tribe while the prosecutrix was a Christian Pradesh 5 SCC 628 Vijayan vs. State of Kerala 2008) 4 SCC 763 Kaini Rajan vs. State of Kerala 9 SCC 113 Deepak Gulati vs. State of Haryana 7 SCC 6. Ms. Pragya Baghel learned counsel for the State submitted that the prosecutrix stood by the allegations during trial. The the sister of the prosecutrix had also confirmed that the latter and had come home crying. The appellant had told the prosecutrix to keep quiet in his absence revealing that his intentions were not bonafide. The defence of a consensual relationship is irrelevant considering that the prosecutrix was of marriage only to establish physical relations with the prosecutrix. He never had any such intentions from the very misrepresentation which is no consent in the eyes of the law 7. We have considered the submissions on behalf of the her age by first stating she was sixteen years on the date of the school has been disclosed either by the prosecutrix or her basis of documentary evidence such as school register etc years younger to him. There is thus wide variation in the of age applying the rule of the thumb on basis of the age disclosed by her in deposition on 18.08.2001 as 20 years. In absence of positive evidence being led by the prosecution with possibility of her being above the age of eighteen years on the A bare perusal of the examination of the accused under Section 313 Cr.P.C. reveals it to be extremely casual and were hiding near Tomra canal and after finding the about the incident you told them that “if I have which the informant as well as your parents were present also in the said ceremony your parents had gifted the informant a Saree and a blouse and the It stands well settled that circumstances not put to an principles of natural justice as it provides him the opportunity not only to furnish his defence but also to explain the incriminating circumstances against him. A probable defence the requirement of proof beyond reasonable doubt. This Court time and again has emphasised the importance of putting all Naval Kishore Singh v. State of Bihar 7 SCC 502 it CrPC was done in the most unsatisfactory manner given opportunity to explain any of the circumstances appearing in the evidence against him. At least the the form of questions and he should have been given was given to the accused in the instant case. We deprecate the practice of putting the entire evidence explanation. The trial Judge should have kept in mind explain the adverse circumstances in the evidence and done in a slipshod manner it may result in imperfect 10. The appellant belonged to the Scheduled Tribe while the different religious beliefs in a traditional society. They both resided in the same village Basjadi and were known to each other. The nature and manner of allegations coupled with the trial make it apparent that their love for each other grew and or sporadic in nature but regular over the years. The prosecutrix had even gone and resided in the house of the entire genesis of the case is in serious doubt in view of the admission of the prosecutrix in cross examination that no 11. The parents of the prosecutrix P.Ws. 5 and 6 both acknowledged awareness of the relationship between appellant the matter to the police immediately. On the contrary P.W. 5 acknowledges that the appellant insisted on marrying in the Temple to which they were not agreeable and wanted the marriage to be solemnised in the Church. They further stated that the prosecutrix was sexually assaulted in her own 12. The prosecutrix acknowledged that an engagement marriage between them could not be solemnised because they belonged to different religions. She was therefore conscious of this obstacle all along even while she continued to establish physical relations with the appellant. If the appellant had married her she would not have lodged the case. She denied having written any letters to the appellant contrary to the was serious about the relationship desiring to culminate the same into marriage. But unfortunately for societal reasons the marriage could not materialise as they belonged to different 13. The question for our consideration is whether the prosecutrix consented to the physical relationship under any the appellant or was her consent based on a fraudulent misrepresentation of marriage which the appellant never misrepresentation from the very inception and the prosecutrix hold in the nature of evidence on record that the appellant we are not persuaded to accept the solitary statement of the prosecutrix that at the time of the first alleged offence her 14. Under Section 90 IPC a consent given under a misconception of fact has to be in proximity of time to the was a conscious and informed choice made by her after due In Uday the appellant and the prosecutrix resided relations continued between them on the understanding and “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 later date cannot be said to be given under a 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 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 a conclusion because each case has its own peculiar facts which may have a bearing on the burden is on the prosecution to prove each and 16. The appellant before the High Court relied upon Kaini case. The physical relationship between the parties was Thimmappa Gowda vs. State of Karnataka are considered persons are madly in love that they promise to each other several times that come what may they will get circumstances the promise loses all significance passion and find themselves in situations and circumstances where they in a weak moment succumb the prosecutrix willingly consented to having sexual in love not because he promised to marry her but because she also desired it. In these circumstances it would be very difficult to impute to the appellant knowledge that the prosecutrix had consented in promise. In any event it was not possible for the appellant to know what was in the mind of the prosecutrix when she consented because there were unsustainable and set aside the same. The appellant is acquitted. He is directed to be set at liberty forthwith unless

Sentence can be suspended by the Appellate court depending upon the facts and circumstances of each case: High court of Manipur

The sentence imposed under the  ND&PS Act can be suspended, subject to conditions as per Section 37 of the ND&PS Act, and taking away the right of suspension, remission, or commutation of such sentences would be unconstitutional. A single bench comprising of Justice M.V. MURALIDARAN adjudicating in the matter of Md. Sahabuddin vs. State of Manipur  (Criminal Appeal No.11 of 2019) dealt with an issue of whether to suspend the sentence passed in favour of the Petitioner or not. The Petitioner in the present case filed a case u/s 389(1) Cr.P.C. praying to suspend the operation of the judgment and order dated 01.10.2019 and the order of sentence dated 08.10.2019 passed by the learned Special Judge, ND&PS (FTC) to release the petitioner on bail during the pendency of the appeal. The petitioner was accused and convicted u/s-21(c) and sentenced to undergo 13 years rigorous imprisonment with a fine of Rs.1,30,000/- under Section 21(c) and to undergo 7 years rigorous imprisonment with a fine of Rs.70,000/- under Section 22(b) of the ND&PS Act to be paid within a period of four months from the date of sentence, failing which the petitioner shall serve simple imprisonment for a further period of two years. The petitioner states that he has a very good cause on merit and is likely to succeed in the appeal filed by him on the ground that the mandatory provisions as prescribed under Sections 41 and 42 of the ND&PS Act were not complied with by the arresting authority at the time of arrest and seizure of the alleged contraband. It was also submitted that there are a lot of infirmities in the judgment passed by the lower court. The petitioner asserts that Section 32-A of the ND&PS Act removes the jurisdiction of the Court to suspend the sentence imposed on a convict under the Act is unconstitutional, and that when a convicted person is sentenced to a fixed period of sentence and when the convict files an appeal under any statutory right, suspension of sentence can be considered by the appellate Court liberally unless there are exceptional circumstances. It was submitted by the Petitioner that u/s 41 and 42 are meant basically to protect an individual against the false implication by the arresting authority and if this protection is sought to be denied by the arresting authority, then this is one of the reasons which can lead this Court may come to a prima facie, but reasonable satisfaction that the petitioner might not have been involved in the crime alleged. Also, it was contended that the petitioner was on bail during trial and he had fully co-operated in the trial by putting his personal appearance in almost all the hearing dates fixed by the learned Special Judge and he never violated any terms and conditions of his release on bail during the whole proceedings of the trial. And Hence the detention of the petitioner during the pendency of the appeal is a severe punishment to all his family members and prays for suspension of the pending appeal. The Opposite Party submitted that the petitioner is not entitled to suspension of sentence, as it is barred by Section 32-A of the Act. It was submitted that the petitioner was convicted under Sections 21(c) and 22(b) of the Act and sentenced to undergo 13 years of rigorous imprisonment and also the petitioner is aged 41 years old, he is not entitled to suspension of sentence. Also, it was submitted that the High Court cannot override the bar provided under Section 32- A of the Act and that the petitioner is not entitled to the benefit of Section 389 Cr.P.C. and therefore, the benefit cannot be extended to him. There are no infirmities in the impugned judgment and the consequential sentence therefore should not be suspended. Further, it was submitted that the petitioner is not entitled to release on bail during the pendency of the appeal at this early stage in order to maintain the balance of rules of law vis-à-vis public confidence on the judiciary and personal liberty of the convict. The court after considering both sides relied upon the Dadu alias Tulsidas v. the State of Maharashtra and agreed upon the Supreme Court view that Section 32-A is unconstitutional to the extent it takes away the right of the Court to suspend the sentence of a person convicted under the Act. And hence the appellate Court can suspend sentence imposed under the Act, subject to the conditions set out in Section 37 of the Act. Also, It is settled that when a convicted person is sentenced to a fixed period of sentence and the appellate court finds that due to practical reasons the appeal cannot be disposed of expeditiously, it can pass appropriate orders for suspension of sentence.

IN THE HIGH COURT OF MANIPUR AT IMPHAL MC(Cril.Appeal) No.119 in Criminal Appeal No.219 Md. Sahabuddin@Md. Shahbuddin aged about 41 years S o Md. Nizamuddin resident of LilongTairelMakhong P.O. P.S. Lilong 79513 Thoubal District Manipur. . Applicant s Versus …. Respondent s State of Manipur HON’BLE MR. JUSTICE M.V. MURALIDARAN For the Applicant s Mr. R.S. Reisang Advocate For the Respondent s Mr. Y. Ashang Learned PP Date of Hearing Judgment & Order MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219 JUDGMENT &ORDER This petition has been filed by the petitioner under Section 389(1) Cr.P.C. praying to suspend the operation of the judgment and order dated 01.10.2019 and the order of sentence dated 08.10.2019 passed by the learned Special Judge ND&PS Manipur in Special Trial Case No.167 of 2018 and to release the petitioner on bail during the pendency of the appeal. The petitioner who has been arrayed as first accused in Special Trial Case No.167 of 2018 on the file of the learned Special Judge ND&PS Manipur was convicted under Section 21(c) 1985 and sentenced to undergo 13 years rigorous imprisonment with a fine of Rs.1 30 000 under Section 21(c) and to undergo 7 years rigorous imprisonment with a fine of Rs.70 000 under Section 22(b) of the ND&PS Act to be paid within a period of four months from the date of sentence failing which the petitioner shall serve simple imprisonment for a further period of two years. Challenging the conviction and sentence imposed on the petitioner the petitioner has filed the criminal appeal before this Court. MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219 Along with the appeal the petitioner has filed petition seeking to suspend the sentence stating that he has a very good case on merits and likely to succeed the appeal filed by him on the ground that the mandatory provisions as prescribed under Sections 41 and 42 of the ND&PS Act were not complied with by the arresting authority at the time of arrest and seizure of the alleged contraband. The learned counsel for the petitioner submitted that there are lot of infirmities in the impugned judgment and that the petitioner has got good case on merits in succeeding the appeal. He would submit that the petitioner has got family and he has to look after the family. The learned counsel further submitted that the petitioner was in custody during trial and in fact while imposing sentence he was brought from Manipur Central Jail Sajiwa. The learned counsel next submitted that the appeal would not be taken up for hearing in the near future and therefore the petitioner is entitled to suspension of sentence pending appeal and that the petitioner undertakes to abide by the conditions imposed by this MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219 The learned counsel further submitted that Section 32 A of the ND&PS Act so far as it ousts the jurisdiction of the Court to suspend the sentence imposed on a convict under the Act is unconstitutional and that when a convicted person is sentenced to a fixed period of sentence and when the convicted person is sentenced to a fixed period of sentence and when the convict files an appeal under any statutory right suspension of sentence can be considered by the appellate Court liberally unless there are exceptional It is also the submission of the learned counsel for the petitioner that recording of information in writing and the proviso for recording of grounds on his belief while carrying out arrest and search of vehicle are mandatory under Section 42 of the ND&PS Act and consequently failure to comply with those requirements would vitiate the trial as held by the Hon’ble Supreme Court. In the instant case the arresting authority has violated the mandatory provision provided under the Act. The learned counsel then submitted that the provisions under Sections 41 and 42 are meant basically to protect an individual against the false implication by the arresting authority and if this MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219 protection is sought to be denied by the arresting authority then this is one of the reasons which can lead this Court may come to a prima facie but reasonable satisfaction that the petitioner might not had been involved in the crime alleged. The learned counsel further submitted that the petitioner was in custody during trial and in fact while imposing sentence he was brought from the jail. The learned counsel for the petitioner then submitted that in similar circumstances this Court suspended the sentence and released the accused on bail. According to the learned counsel for the petitioner the petitioner was on bail during trial and he had fully co operated in the trial by putting his personal appearance in almost all the hearing dates fixed by the learned Special Judge and he never violated any terms and conditions of his releasing on bail during the whole proceedings of the trial. The learned counsel for the petitioner urged that the detention of the petitioner during pendency of the appeal is a severe punishment to all his family members and prays for suspension of MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219 sentence pending appeal. In support the learned counsel for the petitioner relied upon the following decisions: Kailash Chowdhury v. State of Assam 2001 GLT 184. Beikhokim alias VeikhokinKukini v. State of Manipur 1996(II) GLT 449 FB. iii) Roy V.D. v. State of Kerala 8 SCC 590. iv) Sukhdev Singh v. State of Haryana 2 SCC Per contra the learned Additional Public Prosecutor submitted that the petitioner is not entitled to suspension of sentence as it is barred by Section 32 A of the Act. He would submit that since the petitioner was convicted under Sections 21(c) and 22(b) of the Act and sentenced to undergo 13 years of rigorous imprisonment and also the petitioner is aged 41 years old he is not entitled to suspension of sentence. The learned Additional Public Prosecutor further submitted that the High Court cannot override the bar provided under Section 32 A of the Act and that the petitioner is not entitled to the benefit of Section 389 Cr.P.C. and therefore the benefit cannot be extended to MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219 The learned Additional Prosecutor then submitted that there are various situations such as chance discovery or discovery of contraband during the normal routine frisking etc. where compliance of the provisions of Sections 41 and 42 is not required and in this regard the law is well settled. He would submit that unless the matter is considered on merits one cannot jump to a conclusion that the petitioner has a good case to succeed the appeal merely on the ground that he had raised this issue in the grounds of appeal. The learned Additional Public Prosecutor next submitted that there is no illegality and infirmity in passing the impugned judgment and the consequential sentence and therefore the question of suspension of the said judgment and order and its sentence does not arise at this stage. Further the learned Additional Public Prosecutor submitted that the petitioner is not entitled to release on bail during the pendency of the appeal at this early stage in order to maintain the balance of rules of law vis à vis public confidence on judiciary and personal liberty of the convict. This Court considered the submissions made by the learned counsel appearing on either side and also perused the materials available on record. MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219 The petitioner was convicted under Section 21(c) and 22(b) of the ND&PS Act 1985 and sentenced to undergo rigorous imprisonment of 13 years and to pay a fine of Rs.1 30 000 under Section 21(c) and 7 years rigorous imprisonment and to pay fine of Rs.70 000 under Section 22(b) in default to undergo two years simple imprisonment. The judgment of the learned Special Judge is dated 01.10.2019 and sentence was imposed on 08.10.2019 and from 08.10.2019 onwards the petitioner was in jail. instant case the petitioner challenged judgment of the learned Special Judge on various grounds as could be seen from the grounds of appeal. The petitioner has raised a ground that the learned Special Judge failed to appreciate the law laid down by the Apex Court qua arrest and search by an officer not empowered or authorized. The petitioner has also raised a ground that the informant P.W.3 has stated that he did not give information in writing to his immediate superior regarding the search of the vehicle and the arrest of four persons under Section 42 of the Act which is mandatory and consequently the failure to comply with the requirement would vitiate the trial. The petitioner also challenged the impugned judgment on the ground that the trial Court erred in convicting the petitioner under MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219 Section 21(c) of the Act as the seized contraband are controlled substance and not narcotic drugs and as such the impugned judgment and sentence are liable to be set aside. In Kailash Chowdhury the Gauhati High Court held that search seizure arrest and investigation in violation of Sections 41 and 42 of the ND&PS Act is illegal and the trial on the basis of illegal search seizure and investigation held vitiated. In Beikhokim(supra) the Full Bench of Gauhati High Court held as under: “14. On the question whether recording of the information in writing as required u s 41(1) is mandatory or not reference may also be made to sub section of Section 42 which provides that where an officer takes down any information in writing under sub section or record grounds for his belief under the proviso thereto he shall forthwith send a copy thereof to his immediate superior official. The provision clearly brings out intention of the legislature to make the aforesaid provision under Section 42(1) regarding recording of the information if any in writing to be mandatory. In fact in the last sub paragraph of paragraph 15 of the judgment of Balbir Singh’s case Supreme Court clearly observed in unqualified and unambiguous the aforesaid MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219 requirement of Section 42(1) is mandatory. Supreme Court in that case observed as follows: “The object of NDPS Act is to make stringent provision for control and regulation of operations relating to those drugs and substances. At the same time to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers certain safeguards are provided which in the context have to be observed strictly. Therefore those provisions make it obligatory that such of those officers mentioned therein on receiving an information should reduce the same to writing and also record reasons for the relief while carrying out arrest or search as provided under the proviso to Section 42(1). To that extent they are mandatory. Consequently the failure to comply with those requirements thus affects the prosecution case and therefore vitiates the trial.” In Roy V.O.the Hon’ble Supreme Court held: “14. Sub section of Section 42 contains a procedural directive to the officer who take sdown any information in writing under sub sectionor records grounds for his belief under the proviso thereto to send forthwith a copy thereof to his immediate official superior.” MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219 In Sukhdev Singh the Hon’ble Supreme Court “25. There is patent illegality in the case of the prosecution and such illegality is incurable. This is a case of total non compliance thus the question of substantial compliance would not even arise for consideration of the Court in the present case. The twin purposes of the provisions of Section 42 which an broadly be stated are that: it is mandatory provision which ought to be construed and complied with strictly and compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably post recovery sic prior It appears that the main ground urged by the petitioner for setting aside the impugned judgment is that the mandatory provisions as prescribed under Section 41 and 42 of the ND&PS Act were not complied with by the arresting authority at the time of arrest and seizure of the alleged contraband. At this stage the said aspect of the matter cannot be gone into as the same would involve arguments coupled with the judicial pronouncements in this regard. MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219 Now the point that arises for consideration is whether the petitioner is entitled to suspension of sentence imposed on him by the learned Special Judge pending appeal. The learned counsel for the petitioner contended that the appeal would not be taken up for hearing in the near future and the petitioner has got family and he has to look after his family. Under Section 32 A of the ND&PS Act no sentence awarded under the Act shall be suspended or remitted or commuted. However the Hon’ble Supreme Court in Dadu alias Tulsidas v. State of Maharashtra 8 SCC 437 held that Section 32 A is unconstitutional to the extent it takes away the right of the Court to suspend the sentence of a person convicted under the Act. In the said decision the Hon’ble Supreme Court held that taking away of the right of the executive to suspend remit and commute sentences under the Act is valid. The said decision further clarifies that the appellate Court can suspend sentence imposed under the Act subject to the conditions set out in Section 37 of the Act. At this juncture it is apposite to refer Section 37 of the Act which reads thus: MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219 “37. Offences to be cognizable and non bailable : Notwithstanding anything contained in the Code of Criminal every offence punishable under this Act shall be Procedure 1973: cognizable no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity to oppose the application for such release and the Public Prosecutor oposes application the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. The limitations on granting of bail specified in clause of sub section are in addition to the limitations under the Code of Criminal Procedure 1973 or any other law for the time being in force on granting bail.” In Dadu alias Tulsidar(supra) the Hon’ble Apex Court MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219 “25. Judged from any angle the section insofar as it completely debars the appellate courts from the power to suspend the sentence awarded to a convict under the Act cannot stand the test of constitutionality. Thus Section 32 A insofar as it ousts the jurisdiction of the court to suspend the sentence awarded to a convict under the Act unconstitutional. We are therefore of the opinion that the Allahabad High Court in Ram Charan case9 LCD 160 All) has correctly law relating constitutional validity of the section and the judgment of the Gujarat High Court in Ishwar Singh M. Rajput case 2 Guj LR 1365 cannot be held to be good law.” It is settled that when a convicted person is sentenced to a fixed period of sentence and the appellate Court finds that due to practical reasons the appeal cannot be disposed of expeditiously it can pass appropriate orders for suspension of sentence. In Bhagwan Rama ShindeGosai and others v. State of Gujarat 4 SCC 421 the Hon’ble Supreme Court held: “3. When a convicted person is sentenced to a fixed period of sentence and when he files an appeal under any statutory right suspension of sentence can be considered by the appellate court liberally unless there are exceptional circumstances. Of course if there is any statutory restriction MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219 against suspension of sentence it is a different matter. Similarly when the sentence consideration for suspension of sentence could be of a different approach. But if for any reason the sentence of a limited duration cannot be suspended every endeavour should be made to dispose of the appeal on merits more so when a motion for expeditious hearing of the appeal is made in such cases. Otherwise the very valuable right of appeal would be an exercise in futility be efflux of time. When the appellate court finds that due to practical reasons such appeals cannot be disposed of expeditiously the appellate court must bestow special concern the matter of suspending the sentence so as to make the appeal right meaningful and effective. Of course appellate courts can impose similar conditions when bail is granted.” In Union of India v. Ram Samujh and another 9 SCC 429 the Hon’ble Supreme Court held that the jurisdiction of the Court to grant bail is circumscribed by the aforesaid Section of the Act. The bail can be granted and sentence suspended in a case where there are reasonable grounds for believing that the accused is not guilty of the offence for which he is convicted and he is not likely to commit any offence while on bail and during the period of suspension of sentence. MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219 In the instant case the appellant challenged the judgment of the learned Special Judge on various grounds as could be seen from the grounds of appeal and the petitioner has got arguable case. It is to be noted that there are two accused in this case and the learned Special Judge acquitted the second accused from the charges. Anyhow this Court is not concerned with the merits of the appeal and the concern is only with regard to the point whether the petitioner is entitled to suspension of sentence pending appeal. As stated supra the Hon’ble Supreme Court in the case of Bhagwan Rama ShindeGosai(supra) held that the prayer for suspension of sentence pending appeal should be considered liberally unless there is any statutory restriction. As per the decision of the Hon’ble Supreme Court in the case of Dadu alias Thulsidas(supra) Section 32 A of the ND&PS Act does not in any way affect the powers of the authorities to grant parole and a sentence awarded under the Act can be suspended by the appellate Court. Where an appeal is preferred against conviction under the ND&PS Act in the High Court the High Court has ample power and discretion to suspend the sentence. That discretion has to be exercised judiciously depending upon the facts and circumstances of MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219 each case. While considering the suspension of sentence each case has to be considered on the basis of the nature of the offence the manner in which the occurrence had taken place whether bail granted earlier had been misused. There was no straitjacket formula which could be applied in exercising discretion and the facts and circumstances of each case would govern the exercise of judicious discretion while considering an application filed by a convict under Section 389 Cr.P.C. In the instant case the appeal is of the year 2019 and due to practical reasons the appeal cannot be taken up in the near future and disposed of expeditiously. Therefore this Court finds that this is a fit case to suspend the sentence imposed on the petitioner pending appeal however subject to stringent conditions. As stated supra in the light of the decision of the Hon’ble Supreme Court the case of Bhagwan Rama ShindeGosai(supra) and the fact that the present appeal would take substantial time to come up for final hearing without expressing any opinion on the merits of the appeal this Court is inclined to suspend the sentence imposed on the appellant. MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219 Accordingly the sentence imposed on the petitioner in Special Trial Case No.1618 dated 08.10.2019 on the file of the learned Special Judge ND&PS Manipur alone is suspended subject to the compliance of the following conditions by the petitioner: The petitioner is directed to be released on bail on his furnishing a personal bond for Rs.1 lakh with two sureties in the like sum to the satisfaction of the learned Special Judge ND&PSManipur. The petitioner on his being enlarged on bail is directed to reportbefore the learned Special Judge ND&PS FTC) Manipur on all Tuesdays and Fridays at 10.00 A.M. till the disposal of the appeal pending before this 10.00 A.M. The petitioner shall also report before the Border Affairs Police Station on the first Monday of every month at The petitioner shall not indulge in any criminal activities during the period of suspension of sentence. MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219 The Border Affairs Police is directed to monitor the petitioner and if they find the petitioner involved in any criminal activities the Border Affairs Police is at liberty to bring it to the notice of this Court through the Public The petitioner shall not leave the jurisdiction of the In case of violation of any condition the prosecution may ask for cancellation of bail. It is made clear that this Court has not delved into the merits of the appeal. Registry is directed to issue copy of this order to both the parties through their whatsapp e mail. Larson MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219

The accused charged of abetting the offence of suicide should be found guilty : Jammu High Court

If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society, then the accused has the right to acquitted. This was held in the judgment passed by a single judge bench comprising of HON’BLE MRS. JUSTICE SINDHU SHARMA, in the matter State of J&K V. Ram Parkash & ors. [CRAA No. 10/2006], dealt with an issue where the petitioner filed a petition challenging the judgment of acquittal passed by the Sessions Judge, Rajouri in case titled State Vs. Ram Parkash & ors. under Sections 498-A/306 RPC. The prosecution case against the accused persons is that Mst. Anita Devi was married to accused-Raj Pal, in the year 1988, they have two children but since she suspected that her husband-A2 had illicit relation with Champa Devi-A4, wife of Ram Parkash (A1), therefore, she was slighted from time to time and was also subjected to ill-treatment and beating. She committed suicide by jumping in the well. After recovering of her dead body, police registered a case under Section 498-A RPC but after receipt of the post-mortem report, added the charge under Section 306 RPC so all the accused were charged under Sections 306 & 498-A RPC.  The Trial Court framed charges under Section 306 & 498-A RPC. Even though none of the ingredients to make out the charge of 498- A RPC have been mentioned. The question is whether there was any abetment or inducement to the deceased, which drove her to commit suicide, that too, after giving birth to two children and after eight years of married life. But the question is whether the suspicion about her husband’s extra-marital relation was the result of mental sickness and if so, does it mean, she had committed suicide because she was suffering from depression. The Court on the aforementioned allegations came to a definite conclusion that by no stretch the ingredients of abetment are attracted on the statement of the deceased. According to the appellant, the conviction of the appellant under section 306 IPC merely on the basis of the aforementioned allegation of harassment of the deceased is unsustainable in law. After hearing both sides, the Hon’ble High Court of Jammu and Kashmir dismissed the petition and held that it is a clear case that the deceased was suffering from depression getting fit periodically as she was suffering from a psychotic problem due to which she committed suicide as revealed in the medical evidence. There is no ground for interference in the judgment of acquittal passed by the Trial Court. Click here to view judgement

HIGH COURT OF JAMMU AND KASHMIR AT JAMMU State of J&K V s Ram Parkash & ors. Through: Mr. Arshad Majid Malik Dy.A.G CRAA No. 10 2006 Pronounced on : 12 .06.2020 …. Appellant(s) with Ms. Monika Thakur Assisting Through: Mr. Jagpaal Singh Advocate. Coram : HON’BLE MS. JUSTICE SINDHU SHARMA JUDGE This appeal is filed against the judgment of acquittal dated 04.08.2005 passed by the Sessions Judge Rajouri in case titled State Vs. Ram Parkash & ors. under Sections 498 A 306 RPC. The prosecution case against the accused persons is that Mst. Anita Devi was married to accused Raj Pal in the year 1988 they have two children but since she suspected that her husband A2 had illicit relation with Champa Devi A4 wife of Ram Parkash therefore she was slighted from time to time and was also subjected to ill treatment and beating. She committed suicide by jumping in the well on 08.04.1996. As her brother Surinder Kumar came to know from one Ved Parkash that she was missing since 08.04.1996 so he went to her in law’s house and searched for her but she could not be traced thereafter he got an application drafted and reported the matter to the Station House Officer Police Station Nowshera. However on 13.04.1996 her dead body was found from the village well. 2 CRAA No. 10 2006 After recovering of her dead body police registered a case under Section 498 A RPC but after receipt of the post mortem report added the charge under Section 306 RPC so all the accused were charged under Sections 306 & 498 A RPC. The Trial Court framed charges under Section 306 & 498 A RPC. Even though none of the ingredients to make out the charge of 498 A RPC have been mentioned. Appeal has been filed on the ground that as the offences have been proved as such the order of acquittal is against law because there is no appreciation of evidence by the trial Court. The question is whether there was any abetment or inducement to the deceased which drove her to commit suicide that too after giving birth to two children and after eight years of married life. The allegation is that her husband was having extra marital affairs with accused Champa Devi wife of the elder brother of Raj Pal. This is in the statement of Rano Devi mother of the deceased. The deceased according to the witnesses had disclosed this to her mother. This is also stated by PW Dev Raj father of the deceased but he does not say as to who told him about this. He also deposed that A1 & A4 used to trouble her. He also stated that a day before she went missing the deceased had come to collect her children who were with them and went back in the same evening. He also stated that Ram Parkash and his wife Champa Devi used to ask the deceased to ask her father to provide her a piece of land and also to construct house for them but he also admitted that his daughter has been living separately from A1 & A4 as her husband was in the Army. It is also in his statement that the deceased lived with her mother in law in a separate house while Ram Parkash and his family lived 3 CRAA No. 10 2006 separately as they have two houses. He also deposed that she came to stay with the parents in the month of January 1996 and stayed for a month whereafter her husband came and she went back with him. PW Suraj Parkash is a Mason by profession. His father found corpse of the deceased in the well whereafter he was asked to inform the village head Nambardar. He also stated about having constructed separate house of A1 Ram Parkash. PW Sunita Kumari stated that the deceased was her sister who was harassed by the accused Champa Devi and Ram Parkash but on cross examination stated that the accused Raj Pal used to stay separately. Assuming that the allegation that Raj Pal was having extra marital affairs with the elder brother’s wife it would be quite unusual that while the deceased confided with her mother and not with her sister PW Sunita Kumari also did not say a word about this though she spoke that both A1 and his wife had abused her sister. But the question is whether the suspicion about her husband’s extra marital relation was the result of mental sickness and if so does it mean she had committed suicide because she was suffering from depression. Prosecution witnesses state that for a mental problem the deceased used to be taken for treatment at Dhianpur Gadhi. PW Rano Devi and her husband Dev Raj both stated that the deceased was taken to Dhianpur Gadhi for treatment for not bearing a child. Whether it is correct or otherwise the fact has been admitted by PW Jeet Ram who is the village head an old man of 72 years at the time when he was examined as a witness. In cross examination he stated that he once asked Raj Pal about the state of mental health of the deceased he admitted that she had some problem for which they used to go to Dhianpur Gadhi i.e. a sacred place where the 4 CRAA No. 10 2006 villagers go for treatment on the basis of faith in such places. There is no reliable evidence against the allegations of her husband’s extra marital relation with her real elder brother’s wife as no one spoke about it prior to her death. Pw Subhash Chander has stated that the deceased used to be taken to Dhianpur because she used to get fits. This could not be the reasons for suicide. It appears that she was a weak minded woman having suicidal tendency. It is in the evidence that both Ram Parkash and his wife used to harass the deceased as stated by her mother PW Rano Devi. But in case of similar allegations in case titled Mahendra Singh Vs. State of M.P. 1995 SuppSCC 731 which was referred by Apex Court in Gangula Mohan Reddy Vs. State of Andhra Pradesh 1 SCC 750 in Para 11 it has been held as under: “11. Learned counsel for the appellant has placed reliance on a judgment of this Court in Mahendra Singh & Another v. State of M.P. In Mahendra Singh the allegations levelled are as under: 1....My mother in law and husband and sister in lawharassed me. They beat me and abused me. My husband Mahendra wants to marry a second time. He has illicit connections with my sister in law. Because of these reasons and being harassed I want to die by burning." The Court on the aforementioned allegations came to a definite conclusion that by no stretch the ingredients of abetment are attracted on the statement of the deceased. According to the appellant the conviction of the appellant under section 306 IPC merely on the basis of aforementioned allegation of harassment of the deceased is unsustainable in law.” 5 CRAA No. 10 2006 which is also reproduced below: Their lordships stated the law in Para 17 of the said judgment 17. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he committed suicide.” Again in Amalendu Pal Alias Jhantu Vs. State of West Bengal 1 SCC 707 their lordships were referring to Section 306 IPC observed in Para 10 as under : “10. The legal position as regards Sections 306 IPC which is long settled was recently reiterated by this Court in Randhir Singh v. State of Punjab as follows in paras 12 and 13:Whether the order is speaking : Yes. Whether the order is reportable : Yes.

Shiksha Karmi is not a Government post: Chhattisgarh High Court

Shiksha Karmis are not holders of the civil post, therefore they cannot be treated as government servants. Government post has been upheld by the High Court of Chhattisgarh through a single bench led by HON’BLE SHRI JUSTICE SANJAY S. AGARWAL in the case of Smt. Sweta Singh v. State  of Chhattisgarh (Writ Petition No. 6828 of 2021) Brief facts of the case are that the writ petition was filed by the petitioner when the order was passed by the respondent by which the petitioner’s appointment as Assistant Grade­III has been revoked stating that she is not eligible to be appointed on compassionate basis for the post as her husband and her husband’s brother both were in roll of the State Government which bars her from compassionate appointment. Petitioner further contended that her father-in-law Manmohan Singh Pawar while working as Block Education Officer, Surajpur died in harness on 16.12.2018 and thereafter the petitioner made an application on 7.1.2019 for grant of compassionate appointment and ultimately with a delay of 2½ years she was granted compassionate appointment on 2.6.2021, but thereafter she was subjected to show­cause notice on 26.10.2021 stating that her husband namely Basant Pratap Singh was already working as Shiksha Karmi Grade I w.e.f. 30.8.2013 and her husband’s brother namely Akhilendra Pratap Singh was also working as Shiksha Karmi Grade­II. On the other hand, respondents contended that the petitioner’s husband and the petitioner’s husband brother both were Shiksha Karmis on the death of her father in law, but subsequently, he husband was absorbed in the Government department on 1.11.2020 and her husband’s brother was absorbed on 1.7.2019 in Government department and they have been confirmed as Government servant. Therefore, the prohibition clause would apply and since two relatives are already in Government department and therefore petitioner would not be eligible on compassionate basis. The court relying on the judgements of this court (single Bench) in the matter of Harnarayan Yadav v. Chhattisgarh Public Service Commission, Chhattisgarh and Another, which has affirmed by the Division Bench of this Court Harnarayan Yadav v. Chhattisgarh Public Service Commission, Chhattisgarh and Another, held that Shiksha Karmis are not Government servant and they are not holders of the civil post, therefore they cannot be treated as a government servant. The Court ordered that as petitioner’s both relatives i.e. husband and husband’s brother were Shiksha Karmis on the date of sad demise of her father-in-law, therefore, they are not Government servant and as such, the impugned order for her removal should be set aside.

1AFRHIGH COURT OF CHHATTISGARH BILASPURWrit PetitionNo.68221Smt.Sweta Singh aged about 35 years wife of Shri BasantPratap Singh occupation Service ­­­­ Petitioner Versus 1.State of Chhattisgarh through the Secretary Department ofSchool Education New Mantralaya Mahanadi Bhawan NewRaipur2.The Secretary Department of General Administration NewMantralaya Mahanadi Bhawan Distt.Raipur3.The Director Directorate Public EducationNaya Raipur Distt.Raipur4.The Collector Distt.Bilaspur5.The Collector Distt.Surajpur6.The Joint Diretor School Division Bilaspur Distt.Bilaspur7.The District Education Officer District : Bilaspur8.The District Ecucation Officer District : Surajpur9.The Principal Government Higher Secondary School Lakhasar Block Takhatpur District : Bilaspur­­­­ RespondentsFor Petitioner :Mr.A.N.Bhakta and Mr.Vivek Bhakta AdvocatesFor Respondents State:Mr.Suyash Dhar Panel Lawyer Hon ble Shri Justice Sanjay K. AgrawalOrder on Board(Through Video Conferencing)28 1 20221.This writ petition is directed against the order dated23.11.2021passed by respondentNo.7 District Education Officer Bilaspur by which thepetitioner s appointment as Assistant Grade­III has beenrevoked by respondent No.7 holding that she was not 2eligible to be appointed on compassionate basis for thepost of Assistant Grade­III as her husband and herhusband s brother both were in roll of the State Governmentwhich bars her from compassionate appointment.2.It is the case of the petitioner that her father­in­lawManmohan Singh Pawar while working as Block EducationOfficer Surajpur died in harness on 16.12.2018 andthereafter the petitioner made an application on 7.1.2019for grant of compassionate appointment and ultimately witha delay of 2½ years she was granted compassionateappointment on 2.6.2021but thereafter shewas subjected to show­cause notice on 26.10.2021stating that her husband namely Basant Pratap Singhwas already working as Shiksha Karmi Grade­I w.e.f.30.8.2013 and her husband s brother namely AkhilendraPratap Singh was also working as Shiksha Karmi Grade­IIw.e.f. 16.7.2010 which she has suppressed and ultimately by the impugned order her appointment has been revoked. Itis further case of the petitioner that the petitioner shusband and the petitioner s husband s brother both wereShiksha Karmi on the date of sad demise of her father­in­law therefore they were not Government servant as on thatday and therefore revocation of her appointment is bad inlaw. 3.Return has been filed by the respondents State statinginter­alia that the petitioner s husband Basant PratapSingh and the petitioner s husband s brother Akhilendra 3Pratap Singh both were holding and working as Governmentservant on the demise of her father­in­law and therefore she was ineligible for appointment on the post of AssistantGrade­III on compassionate basis and she has suppressed thematerial fact and got appointment which has rightly beenrevoked by respondent No.7 which calls for no interferenceand the writ petition deserves to be dismissed. 4.Mr.A.N.Bhakta with Mr.Vivek Bhakta learned counsels forthe petitioner would submit that it is now been settled bythe judgment of this Courtin the matter ofHarnarayan Yadav v. Chhattisgarh Public Service Commission Raipur & Anr.1 which has been affirmed by the Division Benchof this Court in the matter of Harnarayan Yadav v.Chhattisgarh Public Service Commission Chhattisgarh andanother2 in which it has been held that Shiksha Karmis arenot Government servant and they are not holders of civilpost therefore they cannot be treated as Governmentservant. They would further submit that since thepetitioner s both relatives i.e. husband and husband sbrother were Shiksha Karmis on the date of sad demise ofher father­in­law therefore they were not Governmentservant and as such the impugned order is liable to beset­aside.5.On the other hand Mr.Suyash Dhar learned Panel Lawyerappearing for the respondents State would submit thatthough the petitioner s husband and the petitioner s1 ILR 2017 Chhattisgarh 18642 ILR 2019 Chhattisgarh 639 4husband s brother both were Shiksha Karmis on the date ofdeath of her father­in­law but subsequently her husbandBasant Pratap Singh was absorbed in Government Departmenton 01.11.2020 and her husband s brother Akhilendra PratapSingh was absorbed on 1.7.2019 in Government Department andthey have been confirmed as Government servant. Therefore prohibition clause would apply and since two relatives arealready in Government service therefore the petitionerwas not eligible to be appointed on compassionate basis andas such the writ petition deserves to be dismissed. 6.I have heard learned counsel appearing for the parties considered their rival submissions made herein­above andalso went through the records with utmost circumspection. 7.Admittedly the petitioner s father­in­law while working asBlock Education Officer Surajpur died in harness on16.12.2018 and the petitioner made an application on7.1.2019 for grant of compassionate appointment in terms ofrelevant and applicable policy dated 10.6.2013 read withpolicy dated 30.8.2016. According to that policy daughter­in­law is entitled for compassionate appointment afterdeath of her father­in­law and at that time thepetitioner s husband Basant Pratap Singh was working asShiksha Karmi Grade­I and her husband s brother AkhilendraPratap Singh was working as Shiksha Karmi Grade­II.8.Question for consideration as to whether Shiksha Karmi canbe considered as Government servant came­up forconsideration before this Court in the matter of Harnarayan 5Yadav(single Bench) in which this Court has heldthat Shiksha Kamriis not a Governmentservant and observed as under:­“15. Applying the principle of law laid down by theSupreme Court and the Madhya Pradesh High Court inthe aforesaid judgments if the facts of the presentcase are examined it is quite apparent that thepetitioner was appointed on the post of ShikshaKarmi Grade­IIIunder the Rules of 2007. The saidRules were promulgated under Section 70(1) read withSection 95 of the Act of 1993. That rules were notframed in exercise of powers conferred under provisoto Article 309 of the Constitution of India. It isalso apparent that the petitioner was appointed onthe post of Shiksha Karmi Grade­III by JanpadPanchayat Bhatapara his appointing as well asdisciplinary authority is the Chief ExecutiveOfficer Janpad Panchayat Bhatapara and as such full administrative and disciplinary control vest inJanpad Panchayat Bhatapara. Merely because he hasbeen placed under the disposal of school owned bythe State Government he cannot claim that he is agovernment servant. It is also not in dispute thatthe petitioner is not entitled for protection underArticle 311 of the Constitution of India. Viewedfrom any angle it cannot be held that thepetitioner was appointed under the Rules promulgatedunder Article 309 of the Constitution of India andas such the petitioner having been appointed byJanpad Panchayat Bhatapara pursuant to the Rulesframed under the Rules promulgated under Section70(1) of the Act of 1993 and admittedly not entitledfor protection under Article 311 of the Constitutionof India. It cannot be held that the petitioner isgovernment servant and is entitled for agerelaxation." 9.The aforesaid order was taken to the Division Bench of thisCourt and the Division Bench of this Court in the matter ofHarnarayan Yadavhas affirmed the order of singleJudge holding that Shiksha Karmi is not the holder of acivil post and therefore he is not a Government servant.It was observed as under:­“21. Keeping the totality of the various 6constitutional provisions and the correspondingenactments including the Act of 1993 and the 2007Rules relating to appointment of the PanchayatTeachers this Court has no hesitation in coming tothe same conclusion as the learned single Judge thatthe Appellant cannot be treated as a GovernmentServant as he is not holder of a civil post underthe State but an appointee of a Panchayat which isan independent entity and has its own enactments andrules governing such appointees. The concessiontherefore which had been provided for in theadvertisement of age relaxation of additional threeyears to a Government servant cannot be extended tothe Appellant as he is not holder of a civil postunder the State and cannot be treated to be aGovernment servant to derive the benefit of agerelaxation.”10.Judgments rendered by Single Bench of this Court inthe matter of Harnarayan Yadavwas affirmed by theDivision Bench and SLPNo.12313 2019 against the orderof Division Bench was dismissed by the Supreme Court on1.7.2019 as such it is established that Shiksha Karmi isnot holder of a civil post under the State and therefore he is not a Government servant. 11.Now coming to the facts of the case it is quite vividthat the petitioner s husband namely Basant Pratap Singhand her husband s brother namely Akhilendra Pratap Singhboth were Shiksha Karmis on the date of death of herfather­in­law Manmohan Singh Pawar and even the date onwhich the petitioner made an application for grant ofcompassionate appointment on 7.1.2019 till then they wereworking as Shiksha Karmis and subsequently they have beenabsorbed in Government Department on 1.7.2019 and 1.11.2020respectively but that will not make the petitionerineligible for the reasons that the petitioner was eligible 7to be appointed on the date of sad demise of her father­in­law on 16.12.2018 for which the petitioner had already madean application on 7.1.2019 as on that date and immediatelythereafter her both relatives were working as ShikshaKarmis and they were not in Government service as it iswell established by principle of law laid down by thisCourt in Harnarayan Yadavcould not have beeninterdicted on the ground that subsequently the32 SCC 729 8petitioner s husband and her husband s brother both havebecome Government servant and in Government service byvirtue of absorption in Government Department and policyapplicable bars compassionate appointment on that ground. 15.Accordingly the impugned order dated 23.11.2021(Annexure P­1) passed by respondent No.7 revoking thepetitioner s order of appointment is hereby quashed. She isdirected to be reinstated on the post of Assistant Grade­III along with all consequential service benefits. 16.The writ petition is allowed to the extent indicatedhereinabove. No order as to cost(s). Sd ­ Judge B 9HIGH COURT OF CHHATTISGARH BILASPURWrit PetitionNo.68221PetitionerSmt.Sweta Singh Versus Respondents State of Chhattisgarh and othersblfy os kkldh lsod ugha gSa vkSj bl vk kkj ij vuqdaik fu qfDr dks jí ugha fd k tk ldrk gSaA

Personal displeasure expressed by few theatre owners in their personal capacity cannot be grounds to impute anti-competitive behavior on the part of the answering association: Competition Commission of India

The Informant had alleged contravention of Section 3 of the Competition by the Tamil Nadu Theatre and Multiplex Owners Association (TNTMOA). His complaint was based on media reports, and vague allegations without solid reasons. Moreover, he was found to be a random party with no direct relation to the Theatre Industry, thus this decision by the CCI. This was held In Re: C. Prabhu Daniel And M/s Tamil Nadu Theatre and Multiplex Owners Association [ C. No. 07 of 2021] heard before Hon’ble Chairperson Mr. Ashok Kumar Gupta, Ms. Sangeeta Verma (Member) and Mr. Bhagwant Singh Bishnoi (Member). The Informant states that, the Tamil Movie, ‘Aelay’ was to be released on 12th February 2021 but three days before the release, no theatres were made available as theatre owners mandated that no movie should be screened on OTT platforms for 30 days. Thus, the movie was premiered on a television channel. The Informant claims that the OP Association is preventing producers from having an additional or alternative medium of film release by requiring written commitments from producers that they will not premiere the film for 30 days after its theatrical release. It is pertinent to note the OP’s response, in which it strongly denied the Informant’s accusations. It was asserted that the Informant had failed to present any material demonstrating an agreement between the theatre owners, including communication exchanged between the theatre owners from which any allegations could be inferred. The Informant has made ridiculous claims about the theatres and the reasons why they were unable to release movies. The informant cannot object OP’s internal policies, which are completely in accordance with the laws, including the Competition Act. It is ludicrous to think that during the pandemic, theatre owners deny access to release films on their screens because they are “desperate” to make ends meet. It was stated that OP could not be held liable for grievances against independent theatre owners. The Informant’s uncorroborated statements, media reports, and rumours in support of the claims are unenforceable, irrelevant, unreliable, and inadequate, in addition to being incapable of proof under the Indian Evidence Act. The Commission was of the opinion that, “the mode and medium of release of films, viz. through theatrical release or OTT or both or in any other manner whatsoever, is absolutely within the discretion and power of the film producers……. not only has the Informant failed to adduce any material to support its allegations but has not even filed a rejoinder to the categorical denials made in reply/response filed by the OP and TFPC. In these circumstances, the Commission is of the considered opinion that the Informant is not able to show or otherwise present any material wherefrom even prima facie finding of contravention can be recorded against the OP. 21. Resultantly, the Commission is of the opinion that no case of contravention of the provisions of the Act is made out, and the matter is ordered to be closed forthwith in terms of the provisions contained in Section 26(2) of the Act”.

In Re: C Prabhu Daniel 3 1st Main Road Seethammal Extension Chennai — 18 COMPETITION COMMISSION OF INDIA Case No. 021 Opposite Party M s Tamil Nadu Theatre and Multiplex Owners Door No. 9A 3 Radhakrishnan Street Chennai — 600017 CORAM Mr. Ashok Kumar Gupta Ms. Sangeeta Verma Mr. Bhagwant Singh Bishnoi Order under Section 26(2) of the Competition Act 2002 1. The present Information has been filed by Shri C Prabhu Danielunder Section 19(l)(a) of the Competition Act 2002against Tamil Nadu Theatre and Multiplex Owners Association (‘Opposite Case No. 021 the Act. Party OP’) alleging inter alia contravention of the provisions of Section 3 of 2. The Informant has filed this Information based on media reports and information available in the public domain. As per the Information the OP located in Chennai claims to be an association to help and safeguard the interests of the film exhibition industry in Tamil Nadu. It is stated by the Informant that the Tamil movie ‘Aelay’ was scheduled to have a worldwide theatrical release on 12.02.2021. However just three days before the theatrical release theatres were not made available for the film as exhibitors theatre owners had put forth a strict policy that no movie should premiere on over the topmedia platforms for a period of 30 days of its theatrical release. Being left with no option the movie had to skip theatrical premier and had to premier through the television channel ‘Star Vijay’ on 28.02.2021. 3. The Informant further states that as per the publicly available information Tamil Film Active Producers Association had called the exhibitors theatre owners for talks but the exhibitors theatre owners refused to engage in talks with TFAPA. On the other hand OP was unilaterally engaged in an arm twisting strategy of demanding a written undertaking that ‘for 30 days the movie producer would not premier the movie in OTT media platforms’ a pre condition to screen movies in theatres. 4. The Informant has also alleged that the window of a 30 day gap between theatrical release and the OTT platform release demanded by exhibitors is for small and medium budget Tamil movies. In case of big budget movies the exhibitors theatre owners want the producers to not release their movies for at least 50 days in OTT platforms. 5. The Informant has also alleged that the restriction imposed by OP strangulates the natural evolution of OTT platforms as an alternative or additional medium of Tamil movie distribution. Such restriction has constrained the potential of OTT Case No. 021 platforms to become an alternate or additional medium of movie exhibition and thereby compete with single screens and multiplexes. Besides restricting the provision of services the restriction imposed by OP has effectively limited the incentives of OTT to invest and engage in technical development of their platforms and offer an effective medium for movie distribution to producers. 6. The Informant further alleges that by imposing restrictions the OP forecloses limits the simultaneous distribution of new Tamil movies to OTT platforms and acts as an unfair risky trade off to producers. Thus the choice available to the producers as a consumer of exhibition services provided by OTT platforms is In support of the allegations the Informant has submitted a copy of letter translated version) dated 10.02.2021 of the Tamil Film Active Producers Association which states that to release Tamil movies theatre owners are compelling the concerned producer to issue a letter to the effect that they shall not release the movie on OTT platforms for 30 days. In addition the Informant has also submitted the transcript of an interview of Mr. Panneerselvam General Secretary of OP whereby he has expressed his grief over release of the film “Ponmagal Vandhal” on an OTT platform and stated that they OP) contacted the producer and informed not to release the film on an OTT platform. Since the producer did not pay heed 2D production company was asked to release all its films only on OTT platforms. 9. Further the Informant has also submitted the transcript of interview of Mr. Tiruppur Subramaniam President TNTMOA where in response to a question regarding producers’ willingness towards OTT release of movies he responded “We will get a written statement from them saying that they will release the films on OTT after 30 days from the release of films in theatres by accepting this rule only we will release the films on theatres. Even now Case No. 021 producers accepted this and giving letter regarding this so there is no chance of early release of a movie in OTT.” 10. In light of the aforesaid allegations and averments the Informant has prayed the Commission to direct the Director General to conduct investigation into the matter in terms of Section 26(1) of the Act and also: a) direct OP to be restrained and be ordered to cease and desist from placing restriction on producers. b) direct OP to be restrained from imposing any unfair and unjustified restrictions on release and exploitation of the forthcoming film. c) order such remedial and punitive measures against OP and its members so as to address reverse the harm to competition as well as create deterrence amongst interested parties to indulge in anti competitive behaviour of same or similar nature and d) pass such other and further order as the Commission may deem fit and proper in the circumstances of the case. 11. The Commission considered the Information in its ordinary meeting held on 04.05.2021 and vide its order of even date directed to forward a copy thereof to the OP with a direction to file its reply thereto by 10.06.2021 with an advance copy to the Informant. The Informant was thereafter allowed to file its response to such a reply of OP within one week of its receipt with an advance copy to OP. Further the Commission vide its order dated 25.08.202 decided to forward a copy of the Information to Tamil Film Active Producers Associationand Tamil Film Producers Councilto seek their response(s) if any by 25.09.2021 with advance copies to the Informant and OP. The reply thereto if any was allowed to be filed by the Informant and OP within one week of the receipt of response(s). Case No. 021 12. The OP and TFPC have submitted their reply and response respectively. However the Informant has not filed its rejoinder either to the reply of OP or to the response of TFPC. Further TFAPA has also not submitted any response. 13. OP in its reply denied all allegations levelled against it as being frivolous and blatantly false without any concrete back up evidence. On the allegation of an “agreement” among the members of OP to ban the Tamil film ‘Aelay’ the OP has submitted that this is a complete misrepresentation as no such agreement was even discussed nor was any Board resolution passed by the association. OP further stated that some theatre owners may have individually expressed their displeasure on releasing the film on OTT in a short span as it affects their revenue widely. The dissonance of a few theatre owners can never amount to a unanimous resolution of the association and the attempt of the Informant to project this as a unanimous resolution is misconceived and has been deliberately made to mislead the Commission. It was further submitted that the Informant appears to be a meddlesome interloper and blackmailer who files frivolous complaints for extraneous considerations and has made vague allegations without specifying any details regarding the theatres and the reasons as to why they were not able to release the movie in the theatre. OP also submitted that except citing hearsay statements media reports and rumours the Informant has not adduced any concrete proof in support of its allegations. OP further submits that it is an irony to claim that exhibitors deny access to release films on their screens that too in an unprecedented situation like the current pandemic where theatre owners are hungry for more films to screen so that they can make ends meet. 14. On the transcript of Mr. Panneerselvam General Secretary of OP which the Informant has annexed as secondary evidence it was submitted that the same is nothing but forged and tailored to give credence to the Informant’s allegations. Mr. Panneerselvam has not uttered anything regarding banning the movie and has only stated that the association will discuss the future scenario in the coming days so that theatres can survive. Case No. 021 herein. 15. TFPC in its response pointed out that it is not directly or indirectly related to the issues alleged in the matter or the reliefs prayed thereunder. TFPC is an association with the primary object of promoting the interests of Tamil film producers. It submitted that the decision of mode and medium of release of the film either by theatrical release or OTT or both or in any other manner whatsoever is absolutely within the discretion and power of the film producer and does not involve TFPC at any point of time. It further submitted that due to the release of the film on OTT the release of films in theatres have been affected immensely since March 2020. This in turn has increased the demand for release of films on OTT platforms. It also pointed out that in the event that a film is released in theatres and is also released on OTT within a short span of time the film may not augment the expected revenue in 16. The Commission has perused the Information and other material by way of replies responses as excerpted supra. 17. In the present matter based on certain media reports the Informant has alleged that OP Association is restricting producers to have an additional or alternative medium of film release by insisting on written undertakings from the producers that they would not premier the movie for 30 days after theatrical release. The gist of the allegations made by the Informant and the basis thereof has already been noted in the order and as such it is not necessary to recapitulate the same 18. In this regard it is apposite to note the reply of OP wherein it has emphatically denied the allegations made by the Informant. It pointed out that the Informant has failed to produce any material to show an agreement between the theatre owners and even correspondences exchanged between the theatre owners wherefrom any agreement as alleged can be inferred. The Informant has made Case No. 021 very vague allegations lacking in specificities regarding the theatres and the reasons as to why they were not able to release movies. The Informant is a random party without any stake in the theatre industry and can take no exception to internal policies of the OP which are perfectly in line with the laws of the land including the Competition Act. It is absurd to suggest that exhibitors deny access to release films on their screen during the pandemic when they are “hungry” to make ends meet. Personal displeasure expressed by few theatre owners in their personal capacity cannot be grounds to impute anti competitive behaviour on the part of the answering association. It was averred that OP cannot be sued for grievances against individual theatre owners. The hearsay statements media reports and rumours cited by the Informant in support of the allegations are inadmissible irrelevant unreliable and insufficient besides being incapable of proof under the Indian Evidence Act. 19. The Commission has also perused the response filed by TFPC wherein it has inter alia emphatically stated that the decision as regards the mode and medium of release of films viz. through theatrical release or OTT or both or in any other manner whatsoever is absolutely within the discretion and power of the film producers. The film producers distributors financiers etc. enter independent agreements which delineate their respective rights and obligations. 20. Having perused the Information and the reply and response filed thereto by the OP and TFPC the Commission is of the opinion that not only has the Informant failed to adduce any material to support its allegations but has not even filed a rejoinder to the categorical denials made in reply response filed by the OP and TFPC. In these circumstances the Commission is of the considered opinion that the Informant is not able to show or otherwise present any material wherefrom even a prima facie finding of contravention can be recorded against the OP. 21. Resultantly the Commission is of the opinion that no case of contravention of the provisions of the Act is made out and the matter is ordered to be closed forthwith in terms of the provisions contained in Section 26(2) of the Act. Case No. 021 New Delhi Date: 21 10 2021 22. The Secretary is directed to communicate to the parties accordingly. Sd Ashok Kumar Gupta Sd Sangeeta Verma Sd Bhagwant Singh Bishnoi Case No. 021

Writ petition not maintainable for a contract breach when an alternative civil redress is available: Calcutta High Court

In cases surrounding contractual breaches, a writ petition may only be filed in instances where there is an impediment to file an alternative civil redress. This was opined by the bench of Arindam Mukherjee J. who further stated that no writ lies or order can be issued under Article 226 of the Constitution of India to compel the authorities to remedy such breach of contract; in the matter of Maa Nandi Keshri Rice Mill v Union Of India W.P.A. [1998 OF 2020]. The petitioner is a rice mill. On or about 22th July, 2005, the petitioner no. 1 made an application for sanction of a Term Loan amounting to Rs.108 Lakhs and a Working Capital Loan amounting to Rs.40 lakhs to the United Bank of India, a nationalized bank at its Sainthia Branch (hereinafter referred to as the said bank). The said two facilities were given to the petitioner no. 1 on 5th September, 2005. To avail the credit facilities, the petitioner created an equitable mortgage of a land with building. The petitioners said that the Term Loan of Rs. 108 lakhs has been duly repaid by the petitioners to the satisfaction of the Bank. The Bank has also issued a certificate declaring closure of the Term Loan Account on 16th August, 2013 upon full payment having been made. In such circumstances, the petitioners say that the said bank could neither refuse to release the mortgaged properties nor can contend that the mortgaged properties will be released only upon repayment of the entire outstanding against the Cash Credit limit. The petitioners also say that by refusing to release the mortgaged properties, the bank has infringed the rights guaranteed under Article 300 A of the Constitution of India. Further, the bench observed that the contract between the respondent-bank and the petitioner clearly and unambiguously reveals that the petitioner after voluntarily accepting the conditions imposed by the respondent-bank have entered into the realm of concluded contract, pure and simple. The petitioner can only claim the right conferred upon it by the said contract and bound by the terms of the contract unless some statute steps in and confers some special statutory obligations on the part of the bank in the contractual field. The contract between the petitioner and the respondent-bank, so far as the issue of release of mortgage upon repayment of a portion of the aggregate loan, does not include any statutory terms and/or conditions. In the light of the ratio laid down in ABL International Ltd. v Export Credit Guarantee Corporation of India Ltd (2004) 3 SCC 553 if it was assumed without admitting that the valuation of the mortgaged properties done by the Bank in 2018 relied upon by the petitioner to be a disputed question of fact and that a Civil proceeding is the alternative remedy available to the petitioner to redress his grievances does not create an impediment in exercising the writ jurisdiction, even then the contract in question would be non-statutory in nature wherein remedy for a breach of contract pure and simple has been sought for.

WPA 1998 OF 2020 IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE THE HON’BLE JUSTICE ARINDAM MUKHERJEE. W.P.A. 1998 OF 2020 MAA NANDI KESHRI RICE MILL & ANR. THE UNION OF INDIA & ORS. For the petitioners For the Respondents no. 2 3 4 5 Heard on Judgement on Arindam Mukherjee J.: Mr. Pratip Kumar Chatterjee Mr. Soumya Majumder. .... Advocate Mrs. Lipika Ghosh Mr. Ashis Kumar Mukherjee Mr. Saurabh Prasad. .... Advocates 03.03.2021 09.03.2021 and 18.03.2021 06th May 2021. 1. The petitioner no. 1 is a Rice Mill. On or about 22th July 2005 the petitioner no. 1 made an application for sanction of a Term Loan amounting to Rs.108 Lakhs and a Working Capital Loan amounting to Rs.40 lakhs to the United Bank of India a nationalized bank at its Sainthia BranchThe petitioners say that the Term Loan of Rs. 108 lakhs has been duly repaid by the petitioners to the satisfaction of the Bank. The Bank has also issued a certificate declaring closure of the Term Loan Account on 16th August 2013 upon full payment having been made. The petitioner no. 2 on behalf of the petitioners requested the said Bank to release the two mortgaged properties on the ground that the Term Loan has already been repaid. The Bank has refused to release the mortgaged properties as will appear from a letter dated 15th September 2014 on the ground that the Cash Credit account has not been closed and unless the outstanding amount against the same is repaid the mortgaged properties cannot be released. Challenging the rejection of the petitioners’ prayer to release the mortgaged properties the petitioners have filed the instant writ petition inviting this Court to pass mandatory orders directing release of the mortgaged properties. WPA 1998 OF 2020 b) The petitioners say that the Term Loan has been repaid. The Working Capital Loan of Rs.40 Lakhs also referred to as Cash Credit limit is secured by the petitioner no. 2 as the personal guarantee given by the proprietor of petitioner no. 1 and one Gayatri Saha. That apart and in any event the Cash Credit Loan is also otherwise secured by the stock work in progress and raw materials of the Rice Mill. In such circumstances the petitioners say that the said bank could neither refuse to release the mortgaged properties nor can contend that the mortgaged properties will be released only upon repayment of the entire outstanding against the Cash Credit limit. The petitioners also say that by refusing to release the mortgaged properties the bank has infringed the rights guaranteed under Article 300 A of the Constitution of India. In such circumstances the petitioners say that mandatory order should be passed for release of the mortgaged properties failing which the petitioners will suffer irreparable loss and injury. 3. Submission of the Respondents : a) On behalf of the Bank it is submitted that the sanction granted on 5th September 2005 was a composite one. The petitioners had mortgaged the properties both for the Term Loan and the Cash Credit facility. The mortgage being a composite one cannot be released unless the outstanding amount in the Cash Credit Account is fully repaid even if the Term Loan has been fully repaid. WPA 1998 OF 2020 The said bank has also raised an issue as to the maintainability of the writ petition in view of the nature of the contract pursuant to which the equitable mortgage was credited. The respondent bank says that no relief in the facts and circumstances of the case can be granted by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India as the petitioners are seeking enforcement of the terms of a Contract simplicitor entered by the bank while carrying out commercial activities. 4. Petitioners’ Reply: i) In reply the petitioners say that the value of the mortgaged properties in 2005 was respectively Rs.20 lakhs and 30 lakhs. Even in 2005 the value of the mortgaged properties were more than the working capital loan or the Cash Credit limit facility of Rs.40 lakhs availed by the petitioner. The bank under normal circumstances would not have granted credit facilities to petitioner no. 1 unless the securities given by the petitioners were either above 148 lakhs being the total loan availed or at par with such amount. Now that Rs.108 lakhs have been paid the mortgaged properties should be released. The market value of the mortgaged properties as on 22nd October 2008 even according to the bank as per its own valuation is Rs.5 83 05 000.00. The realizable value is Rs.5 24 75 000.00 while the forced sale value is Rs.4 66 44 000.00 which is much in excess of the outstanding in the Cash Credit account. The petitioners in this regard has also referred to a valuation report obtained by the respondent bank from WPA 1998 OF 2020 its valuer on 27th October 2018The petitioners have tried to defend the writ petition by contending that the respondent bank in view of the pervasive control of such bank with the Reserve Bank of Indiaand the Ministry of Finance is an authority under Article 12 of the Constitution of India and as such is a ‘State’. The said bank entered into the contract while discharging public duty and as such cannot be allowed to act arbitrarily with an ulterior motive and mala fide intent. The writ petition is therefor maintainable. The petitioners have relied upon a judgement reported 2004) 3 SCC 553 INTERNATIONAL LTD. AND ANOTHER VERSUS EXPORT CREDIT GUARANTEE CORPORATION OF INDIA LTD AND OTHERS) on the issue of maintainability of the writ petition and scope of judicial review with regard to Government contract. 5. After hearing the parties and considering the materials on record I have decided to consider the maintainability point raised by the bank without calling for affidavits as the same does not require any factual clarification for which affidavits are required. The parties have agreed to such proposal and as such the hearing of the writ petition restricted only to the maintainability point was allowed and concluded. 6. Findings with reasons : WPA 1998 OF 2020 a) In the instant case the question raised by the bank is not whether the respondent bank is an authority under Article 12 of the Constitution of India and a writ lies against it but whether this Court will exercise its jurisdiction under Article 226 of the Constitution of India to entertain the writ petition by passing orders therein considering the nature of contract between the parties and the character of dispute raised for adjudication. b) The Hon’ble Supreme Court of India in the judgement reported in 1977) 3 SCC 457 has while discussing different types of cases relating to contracts with the State and the exercise of jurisdiction under Article 226 of the Constitution of India divided such cases into three categories as will appear from paragraph 12 thereof “ The Patna High Court had very rightly divided the types of cases in which breaches of alleged obligation by the State or its agents can be set up into three types. These were stated as follows: Where a petitioner makes a grievance of breach of promise on the part of the State in cases where on assurance or promise made by the State he has acted to his prejudice and predicament but the agreement is short of a contract within the meaning of Article 299 of the Constitution ii) Where the contract entered into between the person aggrieved and the State is in exercise of a statutory power WPA 1998 OF 2020 under certain Act or Rules framed thereunder and the petitioner alleges a breaches on the part of the State and iii) Where the contract entered into between the State and the person aggrieved is non statutory and purely contractual and the rights and liabilities of the parties are governed by the terms of the contract and the petitioner complains about breach of such contract by the State. c) Thereafter the Hon’ble Supreme Court approved the view taken by the Patna High Court : “13. It is rightly held that the cases such as Union of India v. M s Anglo Afgan Agencies and Century Spinning & Manufacturing Co. Ltd. v. Ulhasnagar Municipal Council and Robertson v. Minister of Pensions belong to the first category where it could be held that public bodies or the State are as much bound as private individuals are to carry out obligations incurred by them because parties seeking to bind the authorities have altered their position disadvantage or have acted to their detriment on the strength of the representations made by these authorities. The High Court thought that in such cases the obligation could sometimes be appropriately enforced on a Writ Petition even though the obligation was equitable only. We do not propose to express an opinion here on the question whether such an obligation could be enforced in proceedings under Article 226 WPA 1998 OF 2020 of the Constitution now. It is enough to observe that the cases before us do not belong to this category. 14. The Patna High Court also distinguished cases which belong to the second category such as K.N. Guruswamy v. The State of Mysore D.F.O. South Kheri v. Ram Sanehi Singh and M s Shri Krishna Gyanoday sugar Ltd. v. The State of Bihar where the breach complained of was of a statutory obligation. It correctly pointed out that the cases before us do not belong to this class either. 15. It then very rightly held that the cases now before us should be placed in the third category where questions of pure alleged breaches of contract are involved. It held upon the strength of Umakant Saran v. The State of Bihar and Lekhraj Satramdas v. Deputy Custodian cum Managing Officer and B.K. Sinha v. State of Bihar that no writ or order can issue under Article 226 of the Constitution in such cases “to compel the authorities to remedy a breach of contract pure and simple”.” d) In another judgement of the Hon’ble Supreme Court which according to me has a significant bearing in the matter is reported in 10 SCC 733 wherein the Hon’ble Supreme Court has held WPA 1998 OF 2020 “32. Merely because Reserve Bank of India lays the banking policy in the interest of the banking system or in the interest of monetary stability or sound economic growth having due regard to the interests of the depositors etc. as provided under Section 5(c)(a) of the Banking Regulation Act does not mean that the private companies carrying on the business or commercial activity of banking discharge any public function or public duty. These are all regulatory measures applicable to those carrying on commercial activity in banking and these companies are to act according to these provisions failing which certain consequences follow as indicated in the Act itself. As to the provision regarding acquisition of a banking company by the Government it may be pointed out that any private property can be acquired by the Government in public interest. It is now a judicially accepted norm that private interest has to give way to the public interest. If a private property is acquired in public interest it does not mean that the party whose property is acquired is performing or discharging any function or duty of public character though it would be so for the acquiring authority.” e) Although the bank in the instant case being United Bank of India a “corresponding new bank” constituted under the Banking Companies Act 1970 and the provisions of the said Act lays down a pervasive control of the Central Government and the Reserve Bank of India in its functioning I am inclined to borrow the language of the Hon’ble Supreme Court of India in Sagar Thomas though the same in respect of a private company carrying on banking business. The control of the Central Government and RBI over United Bank of India may bring it within the ambit of Article 12 of the Constitution of India but a contract entered into by such bank with its constituent while carrying on business or commercial activity of banking as in the instant case is a pure and simple contract without any statutory flavour. The RBI guidelines in the instant case operates in the interest of banking system or in the interest of monetary stability or sound economic growth having due regard to the interest of the depositors and does not incorporate any statutory flavour to the contract in hand. This brings such a contract like that in hand to the third category of cases specified in Radhakrishna Agarwal and no writ lies or order can be made under Article 226 of the Constitution compelling the respondent bank to remedy the breach of contract pure and simple. f) In a subsequent judgement of the Hon’ble Supreme Court reported in 10 SCC 236 Radhkrishna Agarwaland ABL Internationalcited by the petitioner) were considered. In Noble Resources Ltd. supra) the Hon’ble Supreme Court after considering various authorities has brought a distinction between non statutory contract and a statutory contract. A further distinction is also made between performance of statutory duty or dealing of a public matter by a State and its commercial activities. The Hon’ble Supreme Court then went on to hold that contractual matters are thus ordinarily beyond the realm of judicial review. The application of judicial review in such cases are however very limited. Judicial review according to the said judgement is permissible when mala fide or ulterior motive is attributed. The Court has to bear in mind while considering the scope of judicial review so far it relates to the exercise of contractual powers by Government bodies that the principle of judicial review is to prevent arbitrariness or favouritism. The Court has to see whether interference is needed for larger public interest or that power has WPA 1998 OF 2020 been exercised for any collateral proposition. The Supreme Court has also held in Noble Resourcesthat existence of disputed question of fact or availability of an alternative remedy by itself would not decline the High Court in exercising its jurisdiction under Article 226 of the Constitution of India. g) In another judgement reported in 9 SCC 433 State of Kerala and others vs. M.K. Jose the Hon’ble Supreme Court has considered several authorities including ABL International Ltd. Supra) and Noble Resources Ltd. to find out in which type of case judicial review relating to contracts entered by the Government are called for. h) In M.K. Jose while approving the views taken in ABL Internationalwherein legal principles as to maintainability of writ petition was considered the Hon’ble Supreme Court quoted with approval the following See SCC Page 443 paragraph 17: 17. In ABL Internatinal Ltd. v. Export Credit Guarantee Corpn. Of India Ltd. a two Judge Bench after referring to various judgments as well as the pronouncement in Gunwant Kaur and Century Spg. and Mfg. Co. Ltd. v. Ulhasnagar Municipal Council has held thus:“ 19. Therefor it is clear from the above enunciation of law that merely because one of the parties to the litigation raises a WPA 1998 OF 2020 dispute in regard to the facts of the case the court entertaining such petition under Article 226 of the Constitution is not always bound to relegate the parties to a suit. In the above case of Gunwant Kaur this Court even went to the extent of holding that in a writ petition if the facts require even oral evidence can be taken. This clearly shows that in an appropriate case the writ court has the jurisdiction to entertain a writ petition involving disputed questions of fact and there is no absolute bar for entertaining a writ petition even if the same arises out of a contractual obligation and or involves some disputed questions of fact. 27. From the above discussion of ours the following legal principles emerge as to the maintainability of a writ petition: In an appropriate case a writ petition as against a State or an instrumentality of a State arising out of a contractual obligation is maintainable. b) Merely because some disputed questions of fact arise for consideration same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule. c) A writ petition involving a consequential relief of monetary claim is also maintainable.” While laying down the principle the Court sounded a word of caution as under:WPA 1998 OF 2020 “28. However while entertaining an objection as to the maintainability of a writ petition under Article 226 of the Constitution of India the court should bear in mind the fact that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution. The High Court having regard to the facts of the case has a discretion to entertain or not to entertain a writ petition. The Court has imposed upon itself certain restrictions in the exercise of this power. And this plenary right of the High Court to issue a prerogative writ will not normally be exercised by the Court to the exclusion of other available remedies unless such action of the State or its instrumentality is arbitrary and unreasonable so as to violate the constitutional mandate of Article 14 or for other valid and legitimate reasons for which the Court thinks it necessary to exercise the said jurisdiction.” The Hon’ble Supreme Court in M.K. Jose has further held See SCC Page 444 paragraph 18: “18. It is appropriate to state here that in the said case the Court granted the relief as the facts were absolutely clear from the documentary evidence brought which pertain interpretation of certain clauses of contract of insurance. In that WPA 1998 OF 2020 context the Court opined: “51. ... The terms of the insurance contract which were agreed between the parties were after the terms of the contract between the exporter and the importer were executed which included the addendum therefore without hesitation we must proceed on the basis that the first respondent issued the insurance policy knowing very well that there was more than one mode of payment of consideration and it had insured failure of all the modes of payment of consideration. From the correspondence as well as from the terms of the policy it is noticed that existence of only two conditions has been made as a condition precedent for making first respondent Corporation liable to pay for the insured risk that is: there should be a default on the part of the Kazak Corporation to pay for the goods received and there should be a failure on the part of the Kazakhstan Government to fulfil their guarantee.” And it eventually held:“51. ... We have come to the conclusion that the amended Clause 6 of the agreement between the exporter and the importer on the face of it does not give room for a second or another construction than the one already accepted by us. We have also noted that reliance placed on sub clause of the proviso to the insurance contract by the Appellate Bench is also misplaced which is clear from the language of the said clause WPA 1998 OF 2020 itself. Therefore in our opinion it does not require any external aid much less any oral evidence to interpret the above clause. Merely because the first respondent wants to dispute this fact in our opinion it does not become a disputed fact. If such objection as to disputed questions or interpretations is raised in a writ petition in our opinion the courts can very well go into the same and decide that objection if facts permit the same as in this case.” j) The Hon’ble Supreme Court in M.K. Jose quoted with approval the following findings in Noble Resources Ltd.See SCC page 445 paragraph 19. 19. In this regard a reference to Noble Resources Ltd. vs. State of Orissa would be seemly. The two Judge Bench referred to ABL International Dwarkadas Marfatia & Sons v. Port of Bombay Mahabir Auto Stores v. Indian Oil Corpn. and Jamshed Hormusji Wadia v. Port of Mumbai and opined thus:“29. Although the scope of judicial review or the development of law in this field has been noticed hereinbefore particularly in the light of the decision of this Court in ABL International Ltd. each case however must be decided on its own facts. Public interest as noticed hereinbefore may be one of the factors to exercise the power of judicial review. In a case where a public law WPA 1998 OF 2020 element is involved judicial review may be permissible. See Binny Ltd. v. V. Sadasivan and G.B. Mahajan v. Jalgaon Municipal Council.)” Thereafter the Court in Noble Resources case proceeded to analyse the facts and came to hold that certain serious disputed questions of facts have arisen for determination and such disputes ordinarily could not have been entertained by the High Court in exercise of its power of judicial review and ultimately the appeal was dismissed.” k) Applying the ratio as laid down in the several Supreme Court judgements referred to hereinabove to the case in hand I find that the sanction letter dated 5th September 2005 issued by the respondent bank and accepted by the petitioners amounts to a non statutory contract. It also falls within the third category of cases referred to in M s Radhakrishna Agarwal therefor lays no assistance to the petitioner in the facts of the instant case. In that view of the matter following the ratio laid down in M s Radhakrishna Agarwal supra) no writ of order can be issued under Article 226 of the WPA 1998 OF 2020 Constitution of India in such cases to compel “the authority to remedy a breach of contract pure and simple” is an accepted proposition. The writ petition therefor is not maintainable. l) The contract between the respondent bank and the petitioner clearly and unambiguously reveals that the petitioner after voluntarily accepting the conditions imposed by the respondent bank have entered into the realm of concluded contract pure and simple. The petitioner can only claim the right conferred upon it by the said contract and bound by the terms of the contract unless some statute steps in and confers some special statutory obligations on the part of the bank in the contractual field. The contract between the petitioner and the respondent bank so far as the issue of release of mortgage upon repayment of a portion of the aggregate loan does not include any statutory terms and or conditions. The petitioner’s remedy if any lies for redemption of mortgage and not by filing writ petition seeking release of mortgage properties under the contract. m) I have also considered the subject ‘contract’ from another angle. In the light of the ratio laid down in ABL Internationalassuming without admitting that the valuation of the mortgaged properties done by the Bank in 2018 relied upon by the petitioner to be a disputed question of fact and that a Civil proceeding is the alternative remedy available to the petitioner to redress his grievances does not create an impediment in exercising the writ jurisdiction then also my answer will be the same as the contract in question is non statutory WPA 1998 OF 2020 in nature wherein remedy for a breach of contract pure and simple has been sought for. There is no public interest element involved in the matter no case to attract the provisions of Article 14 of the Constitution of India has also been made out. There is no mala fide or ulterior motive attributed to the bank which can compel interference under judicial review. The rejection to release the mortgaged properties does not involve any favouritism for which interference is required to prevent arbitrariness in the instant case. The bank has only said that unless the entire loan is repaid the mortgage cannot be released. This does not mean that the bank has acted mala fide or with an ulterior motive. It has only conveyed its view on an appreciation of the contract between itself and the petitioner. Merely because the respondent bank acts in compliance with the Reserve Bank of India as held in Sagar Thomas the respondent petitioner though may be a nationalized bank cannot be said to have failed in discharging any public function or public duty while carrying on business or commercial activity of Bank. Even if a writ petition is maintainable against the respondent bank then also the facts of the instant case does not permit interference in the matter by this Court in exercise of its jurisdiction under Article 226. 7. Conclusion. WPA 1998 OF 2020 The writ petition therefor fails and the same is dismissed on the ground of maintainability as discussed above however without any order as to costs. The petitioners will however be free to avail any other remedy that may be available to them in law on the selfsame cause as I have not gone into the merits of the matter save as required for adjudicating the maintainability point. Urgent photostat certified copy of this judgment and order if applied for be supplied to the parties on priority basis after compliance with all necessary formalities.

Fundamental Right To Reside Anywhere In/Move Throughout The Country Cannot Be Denied On Flimsy Grounds: Supreme Court on Rahmat Khan vs Deputy Commissioner of Police

In overturning an extremist order against a journalist the Supreme Court stated that a person’s fundamental freedom to reside anywhere in the country and move freely within the government could not be denied on insufficient grounds. Section 56 of the Maharashtra Police Act deals with removing persons about to commit an offence on the movements of the ground, or acts of any person are causing or calculated to cause alarm, danger or harm to person or property. In the matter of Rahmat Khan Rammu Bismillah Versus Deputy Commissioner of Police LL 2021 SC 404, the Court commented on the Fundamental Right to Reside Anywhere In/Move Throughout The Country. The bench, which included Justices Indira Banerjee and V. Ramasubramanian, stated that expulsion should only be used in extreme circumstances to maintain law and order in a community and avoid a breach of public quiet and peace. In this case, the Deputy Commissioner of Police, Zone-1, Amravati City, issued an order under Section 56(1)(a)(b) of the Maharashtra Police Act, 1951, prohibiting Rahmat Khan @ Rammu Bismillah from entering or returning to Amravati City or Amravati Rural District for one year from the date on which he leaves or is taken out of Amravati City and Amravati Rural District. Khan said before the Supreme Court that he lodged complaints with the government after learning of anomalies in the operation of Madrasas, including misappropriation of public funds provided to Madrasas in Amravati District. On the 13th of October, 2017, he urged that the Collector and the police investigate Madrasas’ theft of government funds in conjunction with government personnel. He also filed a public interest lawsuit in this matter with the High Court. Following that, he was subjected to externment proceedings, which culminated in the contested order. The Court noted that the Appellant’s extrenment order resulted from the journalist’s accusations against government officials, some Madarasas, and those associated with such Madarasas. The latter afterwards filed FIRs against the Appellant. The FIRs are vengeful and punitive, and they are intended to harm people. The Court observed, “The deplorable allegation of demand for ransom by threat, prima facie, appears to have been concocted to give the complaint a colour of intense gravity. Mr Patil argued that the Appellant had been extorting money under threat of exposing the illegal activities of certain officials and certain Madrasas or educational institutions. Even assuming that there was substance in the allegation, which appears to be doubtful, an order of externment was unwarranted. There was no reason for the complainants who lodged the FIRs to get terrorized by the alleged threats, allegedly meted out by the Appellant, for if those complainants had not indulged in unlawful acts, they had nothing to fear. Even otherwise, a threat to lodge a complaint cannot possibly be a ground for passing an order of 18 externment under Section 56 of the Maharashtra Police Act, 1951, more so, when the responses of government authorities to queries raised by the Appellant under the Right to Information Act clearly indicate that the complaints are not frivolous ones, without substance. A person cannot be denied his fundamental right to reside anywhere in the country or to move freely throughout the country, on flimsy grounds.”

IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 912 OF 2021 SPECIAL LEAVE PETITIONNo. 16721 Rahmat Khan @ Rammu Bismillah ...Appellant(s Deputy Commissioner of Police …Respondent(s JUDGMENT Indira Banerjee J This appeal is against a final judgment and order dated 29th January 2021 passed by the Nagpur Bench of the High Court of Judicature at Bombay dismissing the Criminal Writ Petition No. 4918 filed by the Appellant challenging an order of Externment dated 07.05.2018 passed by the Deputy Commissioner of Police Zone 1 Amravati City under Section 56(1)(a)(b) of the Maharashtra Police Act 1951 whereby the Appellant has been directed not to enter or return to Amravati City or Amravati Rural District for a period of one year from the date on which he leaves or is taken out of Amravati City and or Amravati Rural District Paragraphs 1 and 2 of the impugned Externment Order are extracted hereinbelow for convenience “Whereas as per the Order under section 10(2) of the Bombay Police Act Mumbai 251) the Govt. of Maharashtra by Order No.Maharashtra Ordinance No.9 94 dt.24th June 1994 has directed that Deputy Commission of PoliceAmravati will implement the power work and duties conferred upon him under section 56 of the said Act Whereas against Rahematakhan @ Rammu Bismillakhan age 48 years R o Chaman Chhaoni University Road Amravati the proof of following nature has been submitted before me 1. Since 2017 due to his act and movement fear has been created in the locality under Police Station Nagpurigate and Kotwali and to the property of people residing in the nearby surroundings and un safety has been created in their mind. In future also there is every possibility of creation of un safety a) The said person by accompanying with his companions is engaged in serious offence like threatening to kill by abusing and demanding ransom to the people residing in area specified above Offence registered against aforesaid person 384 452 294 506(B) 34 IPC 12 10 2017 Under Police 384 448 294 504 506(B) 34 23 10 2017 Under Police 13 10 2017 Under Police Iste. No. & Section 53 17 under section 110(e)Cr.P.C Date of In this way he is liable to be punished as per Chapter 17 of the I.P.C b)The aforesaid person accompanying with his companions is engaged in serious offence like threatening to kill by abusing and demanding ransom to the people residing in area specified above 2. He has committed activities of the nature as mentioned in paragraph No.1 sub para No.A and B so also has committed several activities of the nature mentioned in the show cause notice….” On or about 11th October 2013 the Government of Maharashtra introduced a scheme called “Dr. Zakir Hussain Madrasa Adhunikikaran Yojana” hereinafter referred to as ‘the Scheme’ for the upliftment of the Muslim community by providing quality education to Muslim children As per the Scheme the Madrasas registered with the office of Charity Commissioner or Waqf Board which had completed three years were to be given priority for allotment of funds for basic amenities remuneration of teachers scholarship of students etc Pursuant to a Government Resolution dated 20th March 2015 the State of Maharashtra announced the disbursement of grants totaling a sum of Rs.1 35 70 000 to 33 Madrasas of Amravati District for the Financial Year 2014 2015 The Appellant claims to be a religious minded journalist and social worker who has been fighting against corruption and misuse of public funds. The Appellant used to publish the newspaper “kalam Ki Takat” till 2009 According to the Appellant his daughter was studying in a Madrasa in Amravati District in Maharashtra. At that time the Appellant came to know of irregularities in the running of Madrasas including misappropriation of public money distributed to Madrasas in Amravati District by the State of Maharashtra The Appellant has alleged that complaints were received by the Government of Maharashtra of illegalities in distribution of grants under the Scheme during the Financial Years 2014 2015 and 2015 2016. The appellant had also made such complaints. In view of the complaints as aforesaid all Collectors were directed to initiate inquiry into the disbursement of grants to Madrasas during the Financial Years 2014 2015 and 2015 2016 On or about 9th August 2017 the Appellant made an application under the Right to Information Act 2005 seeking information from the District Planning Committee Amravati of the outcome of the inquiry and details of distribution of grants in Amravati District in the Financial Years 2014 2015 and 2015 2016 By a communication dated 18th September 2017 the Appellant was informed that a Government Order dated 24th May 2017 had been passed for enquiry but no Enquiry Report had been received by the office of the District Planning Committee. The Appellant was furnished with a list of grantees to whom grants had been disbursed during the years 2014 2015 and 2015 2016 with particulars of the amounts granted to the respective granters. The Appellant claims that he came to know that certain government officers including one C.R. Rathod the then Deputy Director of Education Amravati had disbursed grants under the Scheme in contravention of the Government Resolution dated 11th October 2013 On or about 14th September 2017 the Appellant filed a complaint with the Collector Amravati seeking appropriate action against the concerned officers including the said C.R. Rathod allegedly responsible for illegal distribution of grants. The Appellant also requested the Collector to stop the distribution of Government grants under the scheme in contravention of Rules to certain educational institutions and Madrasas including the institutions run by Joha Education and Charitable Welfare Trust and Madrasi Baba Education On 13th October 2017 the Appellant requested the Collector as also the police to investigate misappropriation of Government grants by Madrasas in collusion with Government officials. In retaliation affected persons filed complaints against the Appellant particulars whereof have been mentioned in paragraph 1 of the impugned Externment Order extracted above. The Appellant applied for and was granted bail by the Sessions Court on condition that the Appellant would attend to the Police Station concerned till the chargesheet was filed The Appellant appears to have filed applications under Section 482 of the Code of Criminal Procedure in the High Court for quashing the criminal cases referred to above which are pending adjudication On or about 30.01.2018 the Appellant filed a Public Interest Litigation in the Nagpur Bench praying for the following orders “(i) issue a writ order or direction in the nature of Mandamus commanding the State Minority Development Department to take action and stop distribution of grants to the respondent no. 11 to 29 and all concerned Madarssa’s into the matter of the selection of the Madarsa’s under the said scheme which are not registered with charity commissioner or Wakf Board and regarding the same inquiry has been already done in the year 2017 as of the Annexure F and report of it already been prepared and submitted by the residential collector Amravati to the respondent no.2 further be pleased to direct the respondent no.1 to 2 to submit the details of the action taken against all the concerned Madarsas before this Hon’ble Court in stipulated time ii) issue a writ order or directions to take action against the respondent no. 2 10 who are responsible for the selection of the Madarsas under the iii) issue a writ order or direction in the nature of Mandamus directing an independent impartial enquiry to be conducted regarding all the Madarsas running in the state of Maharashtra and are receiving grants under the scheme by any retired High Court Judge for submitting its report before this Court in a stipulated time iv) issue a writ order or direction in the nature of Mandamus commanding the Respondent no. 2 to 6 to furnish the record of the funds distributed under the schemes to the different Madarsas v) issue a writ order or direction in the nature of Mandamus commanding the respondents 1 to initiate the departmental and disciplinary proceeding against the Respondents no. 2 10 who are responsible for selection of the vi) issue a writ order or direction which this Hon’ble Court may deem fit and proper under the facts and circumstances of the case vii) award the cost of the petition to the petitioner.” Some time thereafter a Show Cause Notice dated 3rd April 2018 was issued to the Appellant from the office of the Assistant Police Commissioner Gadge Nagar Division Amravati informing him of the initiation of Externment proceeding against him under Section 56(1)(a b) of the Maharashtra Police Act 1951. According to the Appellant he received the show cause notice on 12th April 2018. By a letter dated 16th April 2018 the Appellant replied to the Show Cause Notice dated 3rd April 2018 inter alia contending “1. In the show cause notice the reference of three criminal offences pending against me are reflecting which includes Crime No. 344 17 352 17 registered with Police Station Nagpuri gate and Crime No. 501 17 registered with Police Station Kotwali. It appears that in the show cause notice the date of the said offences is deliberately not shown. 2. First offence i.e. Crime No. 344 17 registered against me is on the complaint filed by one Shamim Azahar Khan Jafar Ali Khan dt. 12 10 2017 in which it is alleged by him that I the undersigned had threatened him on 20 9 2017 at about 9.30 A.M. to 10 A.M. and demanded Rs.50 000 . On the basis of said complaint FIR was lodged against me for the offences punishable u s 294 34 384 452 506(B) of IPC. I have filed application u s 482 CrPC before the Hon’ble High Court Bench at Nagpur challenging the said FIR vide Criminal Application no. 921 2017. In which Hon’ble High Court was pleased to issue notices and same is pending as on today. I submit that the FIR in question is maliciously lodged as I have pursued the matter of misappropriation by the various schools including the office bearers of the Education Department while implementing the Scheme of Government vide G.R. dt. 11 10 2013 3. Second Offence i.e. Crime No. 352 17 registered against me is on the complaint filed by one Irfan Ahmed Mohd. Sheikh dt. 23 10 2017 in which it is alleged by him that I the undersigned along with three other had threatened him and demanded Rs.5 00 000 . On the basis of said complaint FIR was lodged against me for the offences punishable u s 448 384 294 504 506(B) and 34 of IPC. I have filed application u s 482 CrPC before the Hon’ble High Court Bench at Nagpur challenging the said FIR vide Criminal Applicationno. 922 2017. In which the Hon’ble High Court was pleased to issue notices and same is pending as on today. I submit that the FIR in question is maliciously lodged as I have pursued the matter of misappropriation by the various schools including the office bearers of the Education Department while implementing the Scheme of Government vide G.R. dt. 11 10 2013 4. Third Offence i.e. Crime No. 501 17 registered against me is on the complaint filed by one Chandansingh Ramsingh Rathod dt. 13 10 2017 in which it is alleged by him that I the undersigned had demanded Rs.25 000 from him for not lodging complaint against him with collector On the basis of said complaint FIR was lodged against me for the offences punishable u s. 384 of IPC. I have filed application u s 482 CrPC before the Hon’ble High Court Bench at Nagpur challenging the said FIR vide Criminal Application no. 924 2017. In which the Hon’ble High Court was pleased to issue notices and same is pending as on today. I submit that the FIR in question is maliciously lodged as I have pursued the matter of misappropriation by the various schools including the office bearers of the Education Department while implementing the Scheme of Government vide G.R. dt. 11 10 2013 5. That the impugned action is nothing but a pressurized tactics on me for not pursuing the matter of misappropriation before the concerned authorities as the impugned action is initiated against me only after I have approached the Hon’ble High Court by filing application for quashing of the three FIRs referred in the notice in question. As such the action is with ulterior motive and malafide 6. That all the three FIRs are output of personal allegations levelled against me and no allegations which satisfies a requirement of Section 56(1)(a)(b of the Bombay Police Act. Thus the three FIRs cannot be a ground of externing me from entire Amravati District.” On 25th April 2018 the Appellant received another notice dated 20th April 2018 from the Office of the Deputy Commissioner of Police Zone 1 Amravati City under Section 59 of the Maharashtra Police Act 1951. Thereafter externment proceedings were initiated against the Appellant which culminated in the impugned Externment order The impugned Externment Order refers to three Crime Cases being Crime Case Nos. 344 17 352 17 and 501 17 which were initiated pursuant to three First Information Reports(i) the first FIR dated 12.10.2017 lodged at the Nagpuri Gate Police Station by Shamim Azahar Khan Jafal Ali Khan Headmaster of Priyadarshani Urdu Primary and Pre Secondary School run by Madrasi Baba Education Welfare Society at Azad Colony Amravati the second FIR dated 23.10.2017 also lodged at the Nagpur Gate Police Station by Irfan Ahmed Mohammad Sheikh Headmaster of Al Haram International English School run by Joha Educational and Charitable Trust at Jamiya Nagar Lal Khadi Ring Road Amravati andthe third FIR dated 13th October 2017 lodged at the Kotwali Police Station in Amravati City by C. R Rathod the then Deputy Director of Education Amravati The Appellant had been filing applications under the Right to Information Act 2005 seeking information from concerned authorities in relation to illegalities in disbursement of funds to various Madrasas including Al Haram International English School run by Joha Education and Charitable Welfare Trust and Priyadarshini Urdu Primary and Pre Secondary School run by Madrasi Baba Education Welfare Society Pursuant to such applications the Office of the Education Officer had sought information from the concerned Headmasters vide communications dated 23.8.2017 and 25.9.2017 respectively It is the case of the Appellant that Crime Nos. 352 2017 and 344 2017 were initiated as a counterblast in retaliation to the steps taken by the Appellant to put an end to illegal misappropriation of public funds and to initiate action against those involved in illegal practices. The Criminal Case No.501 2017 filed by the said C.R. Rathod Deputy Director of Education Amravati is also retaliatory according to It is not in dispute that the three FIRs were filed soon after the Appellant started making complaints and raising queries under the Right to Information Act 2005. Reference may be made to a response dated 7.9.2018 of the Office of the District Collector in response to a query of the Appellant vide an application dated 16.8.2018. The response is extracted below for convenience “As per the terms and conditions of Government Resolution of 11th October 2013 on the order of District Collector on the complaint dated 14.9.2017 of Rahemat Khan Bismilla Khan in the year 2016 17 inquiry of total 36 Madarsas was done on 15.11.2017 and 26.11.2017 who have taken Government Grant. After this inquiry with the signature of Resident Dy District Collector and District Collector in office note in the proposal of 36 Madarsa there is certificate of registration with the office of Charity Commissioner. But there is no registration Certificate in the name of Madarsa in the office of Waqf Board or Charity Commissioner. In the year 2016 17 the Directors of total 36 Madarsa have been found guilty hence further proposal has been sent to the Govt for necessary action. After getting directives from the Govt further action would be taken.” After investigation of Crime No. 344 2017charge sheet was submitted in the Court of the Judicial Magistrate First Class Court No. 11 Amravati. Charges were framed and the case was registered as Reg. Crl. Case No. 421 The appellant has been acquitted by a judgment and order dated 26th February 2020 of the Judicial Magistrate The impugned Externment Order records that witnesses are not ready to adduce evidence publicly against the Appellant for fear of physical harm as also loss of their property. By a notice sent on 20 th April 2018 the Appellant was called for a hearing to submit his reply The Appellant submitted his reply which as per the impugned Externment Order “does not feel to be cogent” Allegedly on the basis of statement made by undisclosed persons whose identity it is claimed cannot be disclosed to protect them from the danger of retribution the Deputy Commissioner issued an order recording the finding extracted hereinbelow : “… I am sure that the said person named Rahematkhan alias Rammu Bismillakhan age 48 years R o Chaman Chhaoni University Road Amravati Alongwith his colleagues is engaed in illegal acts serious offence like threatening to kill by abusing and demanding tribute in the Police Commissionerate to the people residing in the localities under Nagpurigate and Kotwali. As he is having backing of Grundyism he alongwith his companions he threatens the residents of aforesaid locality and part The said offences are punishable under Chapter XVII of the I.P.C. Whereas as per my opinion as it is felt that the safety of property of witnesses will be endangered the witnesses are not ready adduce evidence publicly by coming forward against the said person. The Police Inspector by making utmost efforts took two witnesses in confidence and after assuring them that if they record their statement evidence then their names and identification will be kept secret. They will not call before any Court or open Forum to adduce evidence. On such assurance their evidence has been recorded in closed doors. Perused the said closed door statements and got sure about its factual condition. On perusing all the documents there is no effect of cases filed in Court against the said person….” The scope and ambit of Sections 56 to 59 of the Maharashtra Police Act 1954 was considered in Pandharinath Shridhar Rangnekar v. Dy. Commr. Of Police the State of Maharashtra reported in1 SCC 372 cited by Mr. Patil appearing for the State where this Court held “8. Section 56 of the Act provides to the extent material that whenever it shall appear in Greater Bombay to the Commissioner:that the movements of acts of any person are causing or are calculated to cause alarm danger or harm to person or property orthat there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission of an offence involving force or violence or an offence punishable under Chapter XII XVI or XVII of the Penal Code 1860 and when in the opinion of such officer witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property the said officer may by order in writing direct such person to remove himself outside the area within the local limits of his jurisdiction or such area and any district or districts or any part thereof contiguous thereto within such time as the said officer may prescribe and not to enter or return to the said area from which he was directed the remove himself. Under Section 58 an order of externment passed under Section 56 can in no case exceed a period of two years from the date on which it was made. The relevant part of Section 59(1) provides that before an order under Section 56 is passed against any person the officer shall inform that person in writing “of the general nature of the material allegations against him” and give him a reasonable opportunity of tendering an explanation regarding those allegations. The proposed externee is entitled to lead evidence unless the authority takes the view that the application for examination of witnesses is made for the purpose of vexation or delay Section 59 also confers on the person concerned a right to file a written statement and to appear through an advocate or attorney 9. These provisions show that the reasons which necessitate or justify the passing of an externment order arise out of extraordinary circumstances. An order of externment can be passed under clauseorof Section 56 and only if the authority concerned is satisfied that witnesses are unwilling to come forward to give evidence in public against the proposed externee by reason of apprehension on their part as regards the safety of their person or property. A full and complete disclosure of particulars such as is requisite in an open prosecution will frustrate the very purpose of an externment proceeding. If the show cause notice were to furnish to the proposed externee concrete data like specific dates of incidents or the names of persons involved in those incidents it would be easy enough to fix the identity of those who out of fear of injury to their person or property are unwilling to depose in public There is a brand of lawless element in society which is impossible to bring to book by established methods of judicial trial because in such trials there can be no conviction without legal evidence. And legal evidence is impossible to obtain because out of fear of reprisals witnesses are unwilling to depose in public. That explains why Section 59 of the Act imposes but a limited obligation on the authorities to inform the proposed externee “of the general nature of the material allegations against him”. That obligation fixes the limits of the co relative right of the proposed externee. He is entitled before an order of externment is passed under Section 56 to know the material allegations against him and the general nature of those allegations. He is not entitled to be informed of specific particulars relating to the material 10. It is true that the provisions of Section 56 make a serious inroad on personal liberty but such restraints have to be suffered in the larger interests of society. This Court in Gurbachan Singh v. State of Bombay[1952 SCR 737 : AIR 1952 SC 221 : 1952 SCJ 279] had upheld the validity of Section 27(1) of the City of Bombay Police Act 1902 which corresponds to Section 56 of the Act. Following that decision the challenge to the constitutionality of Section 56 was repelled in Bhagubhai v. Dulldbhabhai Bhandari v. District Magistrate Thana We will only add that care must be taken to ensure that the terms of Sections 56 and 59 are strictly complied with and that the slender safeguards which those provisions offer are made available to the 15. As regards the last point it is primarily for the externing authority to decide how best the externment order can be made effective so as to subserve its real purpose. How long within the statutory limit of two years fixed by Section 58 the order shall operate and to what territories within the statutory limitations of Section 56 it should extend are matters which must depend for their decision on the nature of the data which the authority is able to collect in the externment proceedings. There are cases and cases and therefore no general formulation can be made that the order of externment must always be restricted to the area to which the illegal activities of the externee extend. A larger area may conceivably have to be comprised within the externment order so as to isolate the externee from his moorings 16. An excessive order can undoubtedly be struck down because no greater restraint on personal liberty can be permitted than is reasonable in the circumstances of the case. The decision of the Bombay High Court in Balu Shivling Dombe v. Divisional Magistrate Pandharpur is an instance in point where an externment order was set aside on the ground that it was far wider than was justified by the exigencies of the case. The activities of the externee therein were confined to the city of Pandharpur and yet the externment order covered an area as extensive as districts of Sholapur Satara and Poona. These areas are far widely removed from the locality in which the externee had committed but two supposedly illegal acts. The exercise of the power was therefore arbitrary and excessive the order having been passed without reference to the purpose of the externment.” In Gazi Saduddin v. State of Maharashtra reported inthe externment notice referred to three criminal proceedings registered against the appellant. It was alleged in the notice that movements and activities of the appellant had caused alarm in the locality and created an atmosphere of terror. It contained details of three incidents having occurred within the period of a fortnight or a month prior to the date of notice wherein the appellant had threatened the people for seeking their cooperation in teaching a lesson to a particular religious community. It was mentioned that the appellant had established contacts with an organisation engaged in activities against communal harmony and national security and had participated in a programme of burning the effigies of leaders of that religious community thereby causing communal tension in the area The judgment of this Court in State of Maharashtra and Ors v. Salem Hasan Khan reported in2 SCC 316 pertained to a person found to be frequently engaged in illegal business of narcotics who was involved in several cases of riot and also criminal intimidation of the residents of the locality because of suspicion that they were supplying information to the police about his illegal activities Witnesses were therefore not willing to come forward and depose against him. Rejecting the argument that the allegations in the show cause notice were too vague in the absence of details to afford the externee reasonable opportunity to defend himself this Court held that a full a complete disclosure of particulars as was requisite in an open prosecution would frustrate the very purpose of an externment proceeding. This Court observed : “4….There is band of lawless elements in society which it is impossible to bring to book by established methods of judicial trial because in such trials there can be no conviction without legal evidence. And legal evidence is impossible to obtain because out of fear of reprisal witnesses are unwilling to depose in public. While dealing with the contention that the State Government was under a duty to give reasons in support of its order dismissing the appeal the point was rejected in the following terms:of Education C.R. Rathod District Planning Officer Ravindra Kale Extension Officer Sandip Bodhke. The Inquiry Report along with explanation of the officers has been sent to the Chamber Officer of the Minority Development Department Mantralaya Mumbai for further action C.R. Rathod lodged FIR No.501 2017 dated 13th October 2017 against the Appellant under Section 384 of the Indian Penal Code exactly within one month from the date of the Appellant’s complaint against him in respect of illegalities in relation to disbursal of funds to As observed above the Appellant was acquitted in Crime No.3417. FIR No.352 2017 dated 23.10.2017 which led to initiation of Crime No.352 2017 was apparently filled soon after the complainant of the said FIR Crime case being the Head Master Al Haram International School received a communication from the Office of the Education Officer Zila Parishad Amravati directing him to furnish information sought by the Appellant by filing an application under the Right to Information Act 2005 From the tenor of the complaint lodged by Irfan Ahmed Mohd Sheikh Headmaster of the Al Haram International English School with the Nagpuri Gate Police Station it is patently clear that there were disputes with regard to the manner of operation of the school Accordingly in the FIR it is stated: “This School is formed after obtaining requisite permission as per rule Their U Dise Number is is 27071502112. On 8th August 2017 the non applicant Rehemat Khan filed an application for getting certain information under Right to Information Act. On 4 10 2017 the non applicant No 1 came in the office of the applicant and demanded the information that was given to him. The applicant verbally told him and given in writing that this is a private school hence information cannot be given under Right to The applicant tried to convince the non applicant No 1 that in this school no any malfunction takes place hence there is no question arises to pay him anything. On that he got delirious with anger and said the applicant that TUM BHADKHAU HO MAI TUMHARA HISAB KARTA HOON. Saying this he aimed the pistol towards me and tried to come near to me. Hearing this noise the Staff Members School Bus Driver Shakil Ahmed Teacher of the school Hafiz Riyaz Huseni Watchman of the School Abdul Sayeed all entered in the office and seeing the situation they stopped the non applicant and attempted to control him.” The deplorable allegation of demand for ransom by threat prima facie appears to have been concocted to give the complaint a colour of intense gravity. Mr. Patil argued that the Appellant had been extorting money under threat of exposing the illegal activities of certain officials and certain Madrasas or educational institutions Even assuming that there was substance in the allegation which appears to be doubtful an order of externment was unwarranted There was no reason for the complainants who lodged the FIRs to get terrorized by the alleged threats allegedly meted out by the Appellant for if those complainants had not indulged in unlawful acts they had nothing to fear. Even otherwise threat to lodge a complaint cannot possibly be a ground for passing an order of externment under Section 56 of the Maharashtra Police Act 1951 more so when the responses of government authorities to queries raised by the Appellant under the Right to Information Act clearly indicate that the complaints are not frivolous ones without substance. A person cannot be denied his fundamental right to reside anywhere in the country or to move freely throughout the country on flimsy grounds Having regard to the special facts and circumstances of this case where on the basis of complaints lodged by the Appellants inquiry had been started by the concerned authorities against government officials and educational institutions including the complainants who lodged the FIRs against the Appellant the impugned externment order which followed cannot be sustained. The Appeal is accordingly allowed and the impugned externment order is set aside [INDIRA BANERJEE NEW DELHI AUGUST 25 2021 [V. RAMASUBRAMANIAN

“Good consideration” is not prohibited under Section 122 of the Transfer of Property Act: High Court of Tripura

It was only out of her love and affection and considering her old age and on a clear understanding of her moral duty, she transferred the suit land in favor of the plaintiff by way of gift deed. This ‘consideration’ should not in any way be termed as ‘valuable consideration’ but it should be considered as ‘good consideration’ and ‘good consideration’ is not prohibited under Section 122 of the Transfer of Property Act, for ‘good consideration’ is the antithesis of ‘valuable consideration’. this was held in Shri Mouna Brata Sarkar And ors v.  Shri Subrata Sarkar[RFA NO.18 OF 2018] in the High Court of Tripura by the single bench consisting of MR. JUSTICE ARINDAM LODH. The facts are that the respondent had instituted the suit for declaration of title and recovery of possession of the suit land from the appellants who are his brother and sister in law.  The Trial Court had passed an order that a gift deed had been duly executed and the plaintiff is entitled to the delivery of the suit property. Aggrieved with the judgment passed by the Civil Judge, the defendants have preferred the present first appeal. The counsel for the appellant contended that since the gift deed had been transacted out of that promise constituting the basis of consideration the said gift deed suffered from illegality and void ab initio. The suit land was purchased both by the plaintiff and the defendant in the name of their mother and lion share of the consideration‟ money was paid by the defendant but taking advantage of the old age of their mother, the plaintiff somehow had managed to obtain the gift deed. The counsel appearing for the respondent contended that the interpretation of counsel for the appellants in regard to the term of consideration was not a correct proposition of law and was liable to be rejected. The plaintiff had been able to prove the gift deed and thus no interference of the court was required. The Court made reference to the judgment of Currie V. Misa, wherein  the following observation had been made,“  A valuable consideration, in the sense of the law, may consist either in some right, interest, profit, or benefit accruing to the one party, or some forbearance, detriment, loss or responsibility, given, suffered or undertaken by the other.” The Court also made reference to judgment of Division Bench of Bombay High Court in Ramacharya Venkatramanacharya vs Shrinivasacharya, and observed that “They had also relied upon the meaning of valuable consideration‟ as defined in Currie(supra).”

HIGH COURT OF TRIPURA RFA NO.18 OF 2018 1. Shri Mouna Brata Sarkar Son of Late Chitta Ranjan Sarkar 2. Smt. Maya Deb(Sarkar) Wife of Sri Mouna Brata Sarkar Both residents of village: Madhyapara formerly known as Basar Mia‟s Colony) PS & PO: Belonia District: South Tripura Tripura. Defendant appellants Versus 1. Shri Subrata Sarkar Son of late Chitta Ranjan Sarkar Resident of village: Madhyapara formerly known as Basar Mia‟s Colony) P.S & P.O Belonia District: South Tripura Tripura. Plaintiff Respondent(s) For the Appellant(s) : Mr. D.K. Daschoudhury Advocate. For the Respondent(s) : Mr. S. Bhattacharjee Advocate. Date of hearing Date of delivery of Judgment & Order Whether fit for reporting : 20.04.2021. : 02.03.2021 YES. HON’BLE MR. JUSTICE ARINDAM LODH JUDGMENT & O R D E R Shri Mouna Brata Sarkar and his wife Smt. Maya Deb Sarkar) have presented this first appeal under Section 96 of the Code of Civil Procedure against the judgment dated 30.07.2018 and decree dated 08.08.2018 passed by the learned Civil Judge Belonia South Tripura in connection with T.S. 015. 2. The factual panorama involved in this case in a nutshell may be stated hereunder: The plaintiff respondent Shri Subrata Sarkarinstituted the suit for declaration of title and recovery of possession of the suit land from the defendant appellantsof the plaintiff. The plaintiff constructed huts and kitchen over the land under the schedule. The plaintiff also constructed single storey building consisting of two rooms. Defendant No.1 requested him to accommodate him with his spouse in that building. The defendant No.1 also purchased a plot of land from one Kanti Lal Dasgupta to make their own home. But they were in no mood to shift their place of residence. The mother of the plaintiff had transferred the land under the schedule by dint of a gift deed dated 09.07.2012. The mother was not satisfied with the activities and behaviour of the defendants and expressed that if the defendants are allowed to stay in the same house along with her then she would die of mental depression. The plaintiff requested the defendants to shift their place of residence but they denied. The plaintiff issued a notice upon them to vacate the rooms under their possession. But they neither vacated nor replied to the notice. The defendants never spent a coin for the benefit of their mother. The defendants have been occupying three rooms forcibly. Since they denied to vacate the building and the rooms therein the cause of action of filing the instant suit arose. It has further been pleaded that defendant No.2 being in service in the administrative department of the Government of Tripura had made a mischievous attempt to prevent the plaintiff from recording his name as „raiyat‟ in the record of right in a mutation proceeding. To substantiate his claim the plaintiff has adduced the following documents: 1) the original sale deed bearing No.1 635 for the year 1988 2) gift deed bearing number 1 842 for the year 2012 executed by his mother 3) certified copy of mutation proceeding 4) certified copy of the finally published khatian in the name of the mother of the plaintiff. On being summoned the defendants appeared and contested the suit by filing written statement stating that the suit is barred by limitation and the suit land was jointly purchased by the plaintiff and the defendant No.1 in the name of their mother and constructed the house thereon. The defendants have asserted that taking advantage of simplicity and innocence of an old woman the plaintiff managed to obtain the gift deed for his wrongful gain. The said gift deed was nothing but a mere paper transaction. 2.3 Based on the aforesaid pleadings the learned Trial Court framed the following issues: form and nature over the suit land “i) Whether the suit is maintainable in its present ii) Whether the plaintiff has right title and interest necessary upon the gift deed being made iii) Whether the delivery of suit property was of khas possession of the suit land iv) Whether the plaintiff is entitled to get recovery relief or reliefs ” v) Whether the plaintiff is entitled to get any other After framing of issues evidences were recorded by the respective parties. Having heard the learned counsels and on consideration of the documents the learned Trial Judge decreed the suit in favour of the plaintiff asking the defendants to deliver possession in favour of the plaintiff as he is entitled to get recovery of khas possession of the suit property from the defendants. It is further held by the learned Trial Court that the gift deed has been duly executed and the plaintiff is entitled to the delivery of the suit property by virtue of the gift deed. It is further held that the plaintiff has been able to establish his title over the suit land. 3. Feeling aggrieved and dissatisfied with the judgment and decree passed by the learned Civil Judge Senior Division the defendants have preferred the present first appeal. 4. I have heard Mr. D.K. Daschoudhry learned counsel appearing on behalf of the appellants as well as Mr. S. Bhattacharjee learned counsel appearing on behalf of the plaintiff respondent. 5. Mr. Daschoudhary learned counsel appearing for the appellants had attacked the judgment and decree passed by the learned Trial Court mainly on the ground that the learned Trial Judge had failed to appreciate the term „consideration‟. to Section 2(d) of the Contract Act Mr. Daschoudhury learned counsel argued that a gift had to be made without any „consideration‟. According to Mr. Daschoudhury learned counsel the term „consideration‟ has to be emanated from the recitals of deed itself. It does not always „consideration‟ means monetary According to learned counsel the gift deed itself proves that it was executed on consideration that since the plaintiff purchased the suit land on payment of consideration money from his own source of income and the promise being made by the mother to return the suit property she had gifted the same in favour of the plaintiff. Learned counsel would contend that since the gift deed had been transacted out of that promise constituting the basis of „consideration‟ the said gift deed suffered from illegality and void ab initio and for that reason it could not confer any title upon the plaintiff. As such since the suit of the plaintiff was based on title and title had not been proved he could not ask for declaration of title on the basis of such void gift deed and claim recovery of khas possession evicting the defendants from the suit property. 6. At the same time Mr. Daschoudhry learned counsel has submitted that the suit land was purchased both by the plaintiff and the defendant No.1 in the name of their mother and lion share of the „consideration‟ money was paid by defendant No.1. It was further argued that taking advantage of the old age of their mother the plaintiff somehow had managed to obtain the gift deed executed by their mother. 7. On the other hand Mr. S. Bhattacharjee learned counsel appearing for the plaintiff respondent would contend that the interpretation made by the learned counsel for the appellants in regard to the term of „consideration‟ was not correct proposition of law and was liable to be rejected. The plaintiff had been able to prove the gift deed. Mr. Bhattacharjee learned counsel for the plaintiff defended the judgment and decree as passed by the learned Civil Judge Senior Division. 8. In view of the submission of the learned counsel for the appellants I have looked for the definition of the term „consideration‟ as contemplated under Section 2(d) of the Contract Act 1872 which reads as under: ” 2.(d) When at the desire of the promisor the promisee or any other person has done or abstained from doing or does or abstains from doing or promises to do or to abstain from doing something such act or abstinence or promise is called a consideration for the 9. The term „promisor‟ and „promisee‟ are defined under Section 2(c) of the Contract Act 1872 as under: “2.(c) The person making the proposal is called the “promisor” and the person accepting the proposal is called the “promisee” In other words when the proposal is accepted the person making the proposal is called as „promisor‟ and the person accepting the proposal is „promisee‟. 10. From the aforesaid definition the learned counsel for the appellants tried to persuade this Court that at the desire of the plaintiff his mother Arati Bala Sarkar had agreed to purchase the suit land in her name though „consideration‟ money would be paid by the plaintiff. However simultaneously the mother promised to return the said purchased suit land in favour of the plaintiff subsequently or as and when the plaintiff would raise his demand to return the said purchased land in favour of him. Thus being a proposal maker the plaintiff became „promisor‟ and the mother Arati Bala Sarkar being executed his proposal became „promisee‟. Further the agreement to return the purchased land as and when it would be demanded by the plaintiff was nothing but a „consideration‟ and out of that „consideration‟ the mother Arati Bala Das executed the gift deed in favour of the plaintiff. 11. Now proceeding to decide the merits of submission as addressed by learned counsel for the appellants it would be relevant to keep in mind the settled proposition as defined under Section 122 of the Transfer of Property Act that it is the essence of a gift that it should be without „consideration‟ of the nature as envisaged in Section 2(d) of the Contract Act. It leads me to give a bird‟s eye view to the deed of gift 13. Section 5 of the Transfer of Property Act defines “transfer of property” to mean an act by which a living person conveys property in present or in future inter alia to one or more other living persons. Such transfer of property may be made by one of the several modes known to law e.g. by sale exchange or gift etc. “gift” as under: 14. Section 122 of the Transfer of Property Act defines the “ „Gift‟ is the transfer of certain existing movable or immovable property made voluntarily and without consideration by one person called the donor to another called the donee and accepted by or on behalf of the donee. It is therefore one of the essential requirements of gift that it should be made by the donor “without consideration”. The word “consideration” has not been defined in the Transfer of Property Act but we have no doubt that it has been used in that Act in the same sense as in the Indian Contract Act and excludes natural love and affection.” 15. Meaning and definition of the word „consideration‟ is available in Black‟s Law dictionary where it defines thus: “The inducement to a contract. The cause motive price or impelling influence which induces a contracting party to enter into a contract. The reason or material cause of a contract. Some right interest profit or benefit accruing to one party or some forbearance detriment loss or responsibility given suffered or undertaken by the other.” 16. Black‟s Law Dictionary also defines the words „good consideration‟ and „valuable consideration‟ as under: “Good Consideration” means „such as is founded on natural duty and affection or on a strong moral love and affection obligation. A consideration entertained by and for one within degree recognized by law. Motives of natural duty generosity and prudence come under this class. The term is sometimes used in the sense of a consideration valid in point of law and it then includes a valuable or sufficient as well as a meritorious consideration. However „generally good is used in antithesis to valuable consideration LR10 Ex 153 the Court was asked to define what valuable consideration is and defined thus: “ A valuable consideration in the sense of the law may consist either in some right interest profit or benefit accruing to the one party or some forbearance detriment loss or responsibility given suffered or undertaken by the other”. The definition has been approved and accepted by their Lordship of Judicial Committee of the Privy Council as the Appeal of Fleming Vs. Bank of New Zealand L.R.(1900) A.C. 557 at 586 from the Supreme Court of New Zealand. A Division Bench of Bombay High Court Ramacharya Venkatramanacharya vs Shrinivasacharya reported in 20 BOMLR 441 had relied upon the 18. Reverting to the questioned gift deed it is recited “That my younger son Sri Subrata Sarkar had brought that aforesaid land from Sri Indu Bhushan Sarkar & others in my name on the basis of a registered sale deed no:1 635 dated 14.03.1988 AD last by his own earned money by working as a typist in the Belonia court & office premises from 1982 AD and working as a clerk under the advocate Sri Sanjib Datta. Later when I prayed for mutation of the purchased land in my own name as it was under my possession by means of that out and out sale deed ......” 19. In continuity thereof there is a general description of the land and the number of sale deed. Thereafter she recited “You the vendee of the deed is my younger son I am at my old stage of life. You the vendee by crossing all sorts of hindrances from your young age had become self dependent and you are properly performing your duties by helping your brothers and sisters and had been taking care of me with much respect. I am very much happy and satisfied by your respect for your mother. You have purchased the aforesaid land in my name by your self earned money at your sole wish. Thinking that it is my sole duty to hand over this land to your favour during my lifetime and in future so that you should not have to face any problem with your children. I have decided to satisfy myself by giving that property to your as a token to love from me. On being written over I do divest myself from all sorts of title and possession from ever from the gifted land described in the schedule.....” 20. On plain reading of the above recitals as extracted here in above from the gift deed in my opinion it cannot be said that on the basis of some valuable consideration the donor Smt. Aarti Bala Sarkar had gifted the suit property in favour of the plaintiff. It was only out of her love and affection and considering his old age and on clear understanding of her moral duty she transferred the suit land favour of the plaintiff by way of gift deed. This „consideration‟ should not in any way be termed as „valuable consideration‟ but it should be considered as consideration‟ and „good consideration‟ is not prohibited under Section 122 of the Transfer of Property Act for „good consideration‟ is the antithesis of „valuable consideration‟. In furtherance thereof the recitals in the gift deed aptly proves that it was made by the donor Arati Bala Sarkar in favour of plaintiff donee and without 21. Further from a careful reading of the deed of gift I find no apparent material to consume that at the desire of the plaintiff his mother Arati Bala Sarkar promised to return the suit land in his favour as and when the plaintiff would raise demand for such transfer. Even no such question was put forth to the plaintiff in regard to this fact. In furtherance thereof there is no evidence that the plaintiff had ever demanded the return of the suit land from his mother Arati Bala Sarkar to fulfil her promise as argued by the learned counsel for the appellants. 22. Lastly though not seriously argued by the learned counsel for the appellants about the purchase of the suit land or the execution and the registration of the gift deed I have perused the evidence and materials on record afresh. Sale deed as well as the gift deed have properly been proved in accordance with the established procedure of law. The defendants have failed to plead that any fraud was committed in execution and registration of the gift deed. There is no evidence that Arati Bala Sarkar executed and registered the gift geed under any undue influence or coercion. The attesting witnesses have confirmed the execution of the gift deed. There is necessary endorsement and being satisfied with the proper execution of the deed the competent authority registered the deed of gift which has been accepted by the plaintiff being a donee. 23. In view of the above analysis the elements as crystallized in the definition of “valuable consideration” ex facie are found to be absent in the recitals of the gift deed in contra the elements of „good consideration‟ predominate the recitals of the deed executed by the mother of the plaintiff Arati Bala Sarkar and for the reasons discussed here in above on both points of law and facts I find no merit in the appeal and accordingly the appeal stands dismissed. The judgment and decree of the Trial Court is affirmed and upheld. However the parties are to bear their own cost. JUDGE

Court can set aside the trial court’s order U/S 9 Arbitration Act on the ground of perversity, when the appellant’s case is a case of admitted liability: High Court of Delhi

Section 9 of Act, 1996 should be exercised in exceptional cases when there is adequate material on record leading to a definite conclusion that the respondent is likely to render the entire arbitration proceedings infructuous or where there is an admitted liability. This was held in SAVITA JAIN SOLE PROPRIETOR OF M S NAVKAR SALES v.  M/S KRISHNA PACKAGING [FAO (COMM) 62/2021] in the High Court of Delhi by division bench consisting of JUSTICE MANMOHAN and MS. JUSTICE ASHA MENON Facts are that the appellant has filed an appeal challenging the order passed by the trial court whereby the petition filed by the appellant under Section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the „Act, 1996‟) was dismissed with costs. The counsel for the appellant submits that discretionary relief enshrined under Section 9 of the Act, 1996 should have been exercised as there was adequate material on record leading to a definite conclusion that the respondent had “admitted its liability”. He placed reliance on Rajendran and Others Vs. Shankar Sundaram and Others. The for the respondent stated that the appellant had failed to establish urgency in this matter and that there was no admitted liability. The appellant had failed to establish that the respondent was frittering away/disposing of his assets so as to defeat the very purpose of Arbitration. The court referred to the order of the Coordinate Bench of the Court in the case of Ajay Singh v. Kai Airways Private Limited, wherein the following observations were made,  “Though apparently, there seem to be two divergent strands of thought, in judicial thinking, this court is of the opinion that the matter is one of the weight to be given to the materials on record, a fact-dependent exercise, rather than of principle. That Section 9 grants wide powers to the courts in fashioning an appropriate interim order, is apparent from its text. Nevertheless, what the authorities stress is that the exercise of such power should be principled, premised on some known guidelines – therefore, the analogy of Orders 38 and 39. Equally, the court should not find itself unduly bound by the text of those provisions rather it is to follow the underlying principles.”

IN THE HIGH COURT OF DELHI AT NEW DELHI FAO62 2021 SAVITA JAIN SOLE PROPRIETOR OF M S NAVKAR SALES Appellant Through Mr. Namit Suri with Mr. Roshan Kumar Advocates. M S KRISHNA PACKAGING ..... Respondent Through Mr. Kaushal Gautam Mr. Gaurav Khetarpal Mr. Abhinav and Ms. Snehpreet Kaur Advocates Reserved on Date of Decision HON BLE MR. JUSTICE MANMOHAN HON BLE MS. JUSTICE ASHA MENON 26th March 2021 20th April 2021 JUDGMENT MANMOHAN J: CM APPL. 8706 2021 CM APPL. 8705 2021 Allowed subject to just exceptions. Accordingly the application stands disposed of. Keeping in view the averments in the application the delay in filing the present appeal is condoned. Accordingly the application stands allowed. FAO62 2021 FAO62 2021 & CM APPL. 8704 2021 Present appeal has been filed challenging the order dated 26th November 2020 passed in OMP (Comm.) No. 119 2020 whereby the petition filed by the appellant petitioner under Section 9 of the Arbitration and Conciliation Act 1996was dismissed with costs. ARGUMENTS ON BEHALF OF THE APPELLANT Learned counsel for the appellant petitioner stated that the respondent had itself in its ledger sent along with email dated 28th August 2020 the appellant petitioner tune of Rs.15 40 318 out of Rs.19 29 546 . He submitted that discretionary relief enshrined under Section 9 of the Act 1996 should have been exercised in the present case as there was adequate material on record leading to a definite conclusion that the respondent had “admitted its liability”. In support of his submission he relied upon the following judgments: A. Rajendran and Others Vs. Shankar Sundaram and Others 2 SCC 724 wherein it has been held as under: “12. The appellants in our opinion are not seriously prejudiced thereby. The court while exercising its jurisdiction under Order 38 Rule 5 of the Code of Civil Procedure is required to form a prima facie opinion at that stage. It need not go into the correctness or otherwise of all the contentions raised by the parties. A cheque had been issued in the name of the firm. The appellants are partners thereof. A pronote had been executed by a partner of the firm. Thus even under the Partnership Act prima facie the plaintiff could enforce his claim not only as against the firm but also as against its FAO62 2021 B. M s. Value Source Mercantile Ltd. Vs. M s. Span Mechnotronix Ltd. 2014DRJ 505 wherein it has been held as under: “14. The question which thus arises is that if the dispute as aforesaid had been brought before this Court by way of a suit whether this Court could have during the pendency of the suit granted the relief as has been granted in the impugned order. Order XXXIX Rule 10 of the CPC empowers the Court to direct deposit payment of admitted amounts. The appellant as aforesaid does not controvert that it continued to be the tenant of office unit B 1 and had not terminated the tenancy with respect thereto. There is thus an admission by the appellant of the liability for rent at least of office unit B 1. The appellant if had been a defendant in a suit could have thus been directed by an interim order in the suit to make such payment to the respondent. Order XV A added to the CPC as applicable to Delhi and which was added as held by us in judgment dated 15th May 2014 titled Raghubir Rai v. Prem Lata to empower the Court to direct payment during the pendency of the suit at a rate other than admitted rate also empowers the Civil Court to direct payment which is apparently wrongfully disputed. The denial by the appellant of the entire rent as agreed on the ground of having determined the tenancy of one of the two office units taken on rent is clearly vexatious as in law the appellant as a tenant could not determine tenancy of part of the premises taken on rent. It is not the case of the appellant that it was entitled to do so as part of terms of its tenancy. In that view of the matter the appellant could under Order XV A of the CPC have been directed to pay the rent of the entire premises notwithstanding having given notice of termination of tenancy of part thereof. We are therefore satisfied that the impugned order satisfies the test of being in exercise of the same power for making orders as the Court has for the purpose of a Civil Suit and is thus within the ambit of Section 9 of the Arbitration in FAO FAO62 2021 C. Numero Uno International Ltd. Vs. Prasar Bharti 150 DLT 688 wherein it has been held as under: “8. The issue can be viewed from yet another angle. The making of the interim award ensures to the party in whose favour the same is made the payment of an amount which is an admitted position payable to it. There is no reason why the payment of what is admittedly due should await the determination of other disputes which may take years before they are finally resolved. If at the conclusion of the arbitral proceedings the defendant were to succeed in his claim either wholly or partially and if after adjustment of the amounts found payable to the plaintiff any amount is eventually held payable to one or the other party the arbitrator can undoubtedly make such an adjustment and direct payment of the amount to one or the other party as the case may be. The final award would in any such case also take into consideration the payments if any made under the interim award. Suffice it to say that the making of the interim award in no way prevents the arbitrator from making adjustments of the amount in the final award and doing complete justice between the parties. By that logic even if we assume that the Prasar Bharti was to fail in substantiating its further claims which are disputed and the appellant were to succeed wholly in the counter claim that it has made all that it would result in is an award in favour of the appellant. There is therefore no inherent illegality or perversity in the making of the interim award by the arbitrator so as to call for interference by this Court under Section 34 of the Act.” D. Huawei Technologies Co. Ltd. Vs. Sterlite Technologies Limited MANU DE 0241 2016 wherein it has been held as under: “29. I agree that the discretion should be exercised in those exceptional cases when there is adequate material on record leading to a definite conclusion that the respondent is likely to render the entire arbitration proceedings infructuous or there is an admitted liability. FAO62 2021 30. In the present case admittedly the goods have been supplied by the petitioner to the respondent in terms of the supply contract and respondent has further supplied the same to MTNL. The said goods are being used and enjoyed by the MTNL. The respondent after supplying the goods to MTNL has collected substantial payment and has not paid to the petitioner for supply of the goods and the payment has been retained by the respondent. No doubt the claim(s) and counterclaim(s) of the parties would be adjudicated in arbitral proceedings. However there is no reason why the petitioner s claim be not secured by requiring the respondent to furnish appropriate security especially in the light of the contractual framework and particularly when the dues are admitted and the party has received the amount due from the Learned counsel for the appellant petitioner stated that the precarious financial condition of the respondent was apparent from the documents and financial statements filed by the respondent itself. He submitted that the learned trial court despite finding a prima facie case in favour of the appellant got swayed by irrelevant considerations and dismissed the petition and imposed costs upon the appellant. ARGUMENTS ON BEHALF OF THE RESPONDENT Per contra learned counsel for the respondent stated that the appellant had failed to establish urgency in this matter both in the application before learned District Judge and in the present appeal warranting this Court‟s He stated that there was no admitted liability as claimed by the appellant as the respondent had categorically stated that account will be settled only if: FAO62 2021 i) all his debit notes issued were adjusted ii) the freight charges incurred by the respondent were credited iii) rate difference of 23 mic polyester film and freight of 36 mic polyester film were credited to respondent‟s account and iv) defective goods supplied were acknowledged by appellant. He stated that the fact that defective goods had been supplied was acknowledged by appellant. He emphasised that all the aforesaid issues had been raised with the appellant in the respondent‟s letter dated 24th October 2019 but to no avail. Learned counsel for the respondent contended that the appellant had failed to establish that the respondent was frittering away disposing of his assets so as to defeat the very purpose of Arbitration and if an interim relief by way of securing alleged admitted amount was not granted the Arbitration proceedings would become infructuous. He stated that the change of address of respondent as claimed by the appellant as evidence of trying to evade paying outstanding liabilities was an address change from Mathura to Vrindavan a mere 12 kms apart. He further stated that the respondent‟s turnover and profit was growing progressively and in the unlikely event of an award being passed against it respondent was capable of paying the decretal amount. COURT‟S REASONING SECTION 9 GRANTS WIDE POWERS TO THE COURTS IN GRANTING AN APPROPRIATE INTERIM ORDER BASED ON THE RELEVANT FACTS OF THE CASE AT ALL STAGES OF THE ARBITRATION PROCEEDINGS NAMELY BEFORE DURING OR AFTER THE FAO62 2021 ARBITRATION PROCEEDINGS. COURT‟S JURISDICTION UNDER SECTION 9 IS TO SUPPORT THE ARBITRATION AND TO ENSURE THAT IF AN AWARD IS PASSED BY THE ARBITRATOR THE SAME IS EXECUTABLE AND IS NOT RENDERED INFRUCTUOUS. THOUGH EXERCISE OF SUCH POWERS IS PREMISED ON THE UNDERLYING PRINCIPLES OF ORDERS XXXVIII AND XXXIX OF THE C.P.C YET IT IS SETTLED LAW THAT THE COURT IS NOT UNDULY BOUND BY THE TEXT OF THESE PROVISIONS. Having heard learned counsel for the parties this Court is of the opinion that Section 9 grants wide powers to the Courts in granting an appropriate interim order based on the relevant facts of the case at all stages of the arbitration proceedings namely before during or after the arbitration proceedings. However this Court is in agreement with the submission of learned counsel for respondent that the discretion under Section 9 of Act 1996 should be exercised in exceptional cases when there is adequate material on record leading to a definite conclusion that the respondent is likely to render the entire arbitration proceedings infructuous or where there is an admitted liability. Needless to state though exercise of such powers is premised on the underlying principles of Orders XXXVIII and XXXIX of the C.P.C yet it is settled law that the Court is not unduly bound by the text of these provisions. A Coordinate Bench of this Court in Ajay Singh v. Kai Airways Private Limited 2017 SCC OnLine Del 8934 has held as under: “27. Though apparently there seem to be two divergent strands of thought in judicial thinking this court is of the opinion that the matter is one of the weight to be given to the materials on record a fact dependent exercise rather than of principle. That Section 9 grants wide powers to the courts in fashioning an appropriate interim order is apparent from its text. Nevertheless what the authorities stress is that the exercise of such power should be principled premised on FAO62 2021 some known guidelines therefore the analogy of Orders 38 and 39. Equally the court should not find itself unduly bound by the text of those provisions rather it is to follow the underlying principles. In this regard in Films Rover International Ltd. v. Cannon Film Sales Ltd.3 All ER 772 are the observations of Lord Hoffman “But I think it is important in this area to distinguish between fundamental principles and what are sometimes described as „guidelines‟ i.e. useful generalisations about the way to deal with the normal run of cases falling within a particular the grant of category. The principal dilemma about interlocutory injunctions whether prohibitory or mandatory is that there is by definition a risk that the court may make the „wrong‟ decision in the sense of granting an injunction to a party who fails to establish his right at the trialor alternatively in failing to grant an injunction to a party who succeedsat trial. A fundamental principle is therefore that the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been „wrong‟ in the sense I have described. The guidelines for the grant of both kinds of interlocutory injunctions are derived from this principle.” In any event this Court‟s jurisdiction under Section 9 is to support the arbitration and to ensure that if an Award is passed by the Arbitrator the same is executable and is not rendered infructuous.28 2021 Mewa Mishri Enterprises Private Limited Vs. AST Enterprises Inc. decided on 23rd February 2021.] THIS COURT SETS ASIDE THE TRIAL COURT‟S ORDER ON THE GROUND OF PERVERSITY AS THE APPELLANT‟S CASE IS A CASE OF ADMITTED LIABILITY AS REFLECTED IN RESPONDENT‟S OWN BALANCE SHEETS AND STATEMENT OF ACCOUNTS. IN FACT BALANCE SHEETS AND STATEMENT OF ACCOUNTS OF A COMPANY ARE IN LAW SUPPOSED TO REFLECT THE TRUE AND CORRECT FAO62 2021 STATE OF AFFAIRS. CONSEQUENTLY IF THE RESPONDENT HAD ANY TENABLE COUNTER CLAIM AS CONTENDED BY THE RESPONDENT IN ITS LETTER DATED 24TH OCTOBER 2019 AND AS BELIEVED BY THE TRIAL COURT IT WOULD NOT HAVE SHOWN THE ITS STATEMENT OF ACCOUNTS ENDING 31ST MARCH 2020 AS ITS SUNDRY CREDITOR TO WHOM RS. 15 40 318 WAS DUE AND PAYABLE WITHOUT ANY CAVEAT EXPLANATION. FURTHER THE FINANCIAL CONDITION OF THE RESPONDENT IS NOT HEALTHY. 10. Though this Court is of the view that the jurisdiction of an Appellate Court while hearing an appeal against application under Section 9 of the Act 1996 is limited as the appeal is against exercise of discretion by the learned Single Judge yet as the trial court in the present case has acted contrary to the settled principles of law as well as facts it sets aside the trial court‟s order on the ground of perversity as the appellant‟s case is a case of admitted liability as reflected in respondent‟s own balance sheets and statement of accounts without any caveat explanation and that too post its counter claim in its letter dated 24th October 2019. 11. The balance sheets and statement of accounts filed by the respondent prima facie prove that the respondent admits the appellant as his sundry creditor to the tune of Rs.15 40 318 without any demur or subject to any condition. Though the respondent during the course of arguments stated that it has to effect recoveries from the appellant in accordance with its letter dated 24th October 2019 yet the said contention is belied from the fact that the appellant is not shown as Sundry Debtor even in the subsequent balance sheet for the year ending 31st March 2020 filed before this Court. In fact even in the respondent‟s balance sheet for the subsequent Financial Year 2020 21 the appellant petitioner is shown as a Sundry Creditor to whom an FAO62 2021 admitted amount of Rs.15 40 318 is payable. 12. The balance sheets and statement of accounts of a company are in law supposed to reflect the true and correct state of affairs. Consequently if the respondent had any tenable counter claim as contended by the respondent in its letter dated 24th October 2019 and as believed by the Trial Court it would not have unequivocally shown the appellant petitioner in its statement of accounts ending 31st March 2020 as its Sundry Creditor to whom Rs.15 40 318 was due and payable. It is pertinent to mention that attention of this Court was not drawn by the respondents to any caveat or auditor‟s report or note on accounts with regard to the said admission in the balance sheets or statement of accounts during the course of hearing. Accordingly this Court is of the prima facie opinion that the counter claims raised by the respondent are an after thought and vexatious. 13. Further the financial condition of the respondent is not healthy as is apparent from the fact that the respondent bank‟s unsecured loans stood at Rs.94 27 094 and Sundry creditors were to the tune of Rs.1 82 83 278 . The net profit turnover of the respondent for the Assessment Year 2019 20 was Rs.4 45 812 which is much less than the admitted amount and almost one fifth of the total outstanding amount claimed by the appellant. 14. Consequently this Court is of the view that the appellant ought to be protected insofar as the admitted amount of Rs.15 40 318 is concerned. 15. Accordingly the impugned order dated 26th November 2020 passed by the Trial Court is set aside and the respondent is directed to furnish a bank guarantee of Rs.15 40 318 to the FAO62 2021 satisfaction of the Trial Court within four weeks. The bank guarantee shall be kept alive till an award is rendered by the Arbitrator and shall abide by further orders to be passed by the learned Arbitrator while rendering the final award. This Court clarifies that the conclusions arrived at by this Court are prima facie in nature for determination of this proceeding and shall not bind the Arbitrator who shall decide the matter on its own merits without being influenced by any observation made by this Court. Consequently present appeal and application stand disposed of. MANMOHAN J ASHA MENON J APRIL 20 2021 FAO62 2021

Soni Devrajbhai Babubhai Vs. State Of Gujarat And Ors.

 The enactment of Dowry Prohibition Act, 1961 in its original form was found inadequate which led to several other legislative measures in the continuing battle to combat this evil. [Case Brief] Soni Devrajbhai Babubhai Vs. State Of Gujarat And Ors. Case name: Soni Devrajbhai Babubhai Vs. State Of Gujarat And Ors. Case number: 1991 SCR (3) 812 Court: Supreme Court Of India Bench: Verma, (J) Jagdish Saran (J) Decided on: 28/08/1991 Relevant Act/Sections: Constitution of India, 1950: Article 20(1), Indian Penal Code, 1860: Section 304-B, Section 498-A, Indian Evidence Act, 1872: Section 113-B, Dowry Prohibition Act, 1961, Code of Civil Procedure, 1973   Appellant’s daughter Chhaya was married to Respondent No. 2 Satish on 05/12/1984 and they started living together in their marital home at Bagasara. On 13/8/1986, Chhaya died at Bagasara. The petitioner and his wife got some vague information about their daughter Chhaya and went to Bagasara, the same day but were unable to meet or see their daughter who had died. The petitioner suspected that their daughter’s death was unnatural resulting from torture by her husband and his relatives.The petitioner filed a criminal complaint against Respondent Nos. 2 to 5, who are the husband, his parents and sister. The criminal complaint was transferred to the Court of Judicial Magistrate First Class at Dhari and was registered for an offence under section 498-A read with section 34 I.P.C. The petitioner filed an application for committing the case to the Court of Session for trial for an offence punishable under section 304-B I.P.C. which was inserted in the Indian Penal Code by Act No. 43 of 1986 w.e.f. 19/11/1986. On 29/11/1988, the Learned Magistrate dismissed the petitioner’s application holding that this amendment being prospective was inapplicable to a death which occurred on 13.8.1986, prior to the amendment.Aggrieved by this order, the petitioner moved an application in the High Court of Gujarat for a direction to commit this case of dowry death to the Court of Session since an offence punishable under section 304-B is triable by the Court of Session. The application was dismissed and hence this special leave petition was filed. Appellant’s daughter Chhaya was married to Respondent No. 2 Satish on 05/12/1984 and they started living together in their marital home at Bagasara. On 13/8/1986, Chhaya died at Bagasara. The petitioner and his wife got some vague information about their daughter Chhaya and went to Bagasara, the same day but were unable to meet or see their daughter who had died. The petitioner suspected that their daughter’s death was unnatural resulting from torture by her husband and his relatives.The petitioner filed a criminal complaint against Respondent Nos. 2 to 5, who are the husband, his parents and sister. The criminal complaint was transferred to the Court of Judicial Magistrate First Class at Dhari and was registered for an offence under section 498-A read with section 34 I.P.C. The petitioner filed an application for committing the case to the Court of Session for trial for an offence punishable under section 304-B I.P.C. which was inserted in the Indian Penal Code by Act No. 43 of 1986 w.e.f. 19/11/1986. On 29/11/1988, the Learned Magistrate dismissed the petitioner’s application holding that this amendment being prospective was inapplicable to a death which occurred on 13.8.1986, prior to the amendment.Aggrieved by this order, the petitioner moved an application in the High Court of Gujarat for a direction to commit this case of dowry death to the Court of Session since an offence punishable under section 304-B is triable by the Court of Session. The application was dismissed and hence this special leave petition was filed. ISSUE BEFORE THE COURT: The question was regarding the applicability of section 304-B of the Indian Penal Code to the case where the death alleged to be a dowry death occurred prior to insertion of section 304-B in the Indian Penal Code. RATIO OF THE COURTIt was contended by the appellant that section 304-B inserted in the Indian Penal Code does not create a new offence and contains merely a rule of evidence and respondents should be convicted under it.But the court opined that the enactment of Dowry Prohibition Act, 1961 in its original form was found inadequate which led to several other legislative measures in the continuing battle to combat this evil. Through the Criminal Law (Second Amendment) Act, 1983, the Indian Penal Code, the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872 were amended and section 498-A was inserted in the penal code.Thereafter, the Dowry Prohibition (Amendment) Act, 1986 (No. 43 of 1986) was enacted further to amend the Dowry Prohibition Act, 1961 and to make certain necessary changes in the Indian Penal Code, the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872. Section 8 of the Dowry Prohibition Act, 1961 was amended to make every Offence under this act non-bailable while continuing it to be non-compoundable. Section 304-B which is dowry death was added to the Indian Penal Code and accordingly the Code of Civil Procedure, 1973 and the Indian Evidence Act, 1872 were amended. Section 113-B was added to the IEA, 1872 which is a presumption as to dowry death. It was clear from the historical background that offence of dowry death under section 304-B was a new offence.Clause (1) of Article 20 provide protection against conviction for any offence except for violation of the law in force at the time of the commission of the act charged as an offence.The court held that, acceptance of the contention of appellant would deny the respondent with the protection afforded by clause (1) of Article 20. The contention of the counsel for the appellant that section 304-B inserted in the Indian Penal Code does not create a new offence and contains merely a rule of evidence is untenable.The rule of evidence to prove the offence of dowry death is contained in section 113-B of the Indian Evidence Act providing for presumption as to dowry death which was a simultaneous amendment made in the Indian Evidence Act for proving the offence of dowry death. The fact that the Indian Evidence Act was so amended simultaneously with the insertion of section 304-B in the Indian Penal Code by the same Amendment Act is another pointer in this direction and the contention is therefore rejected. It was contended by the appellant that section 304-B inserted in the Indian Penal Code does not create a new offence and contains merely a rule of evidence and respondents should be convicted under it.But the court opined that the enactment of Dowry Prohibition Act, 1961 in its original form was found inadequate which led to several other legislative measures in the continuing battle to combat this evil. Through the Criminal Law (Second Amendment) Act, 1983, the Indian Penal Code, the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872 were amended and section 498-A was inserted in the penal code.Thereafter, the Dowry Prohibition (Amendment) Act, 1986 (No. 43 of 1986) was enacted further to amend the Dowry Prohibition Act, 1961 and to make certain necessary changes in the Indian Penal Code, the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872. Section 8 of the Dowry Prohibition Act, 1961 was amended to make every Offence under this act non-bailable while continuing it to be non-compoundable. Section 304-B which is dowry death was added to the Indian Penal Code and accordingly the Code of Civil Procedure, 1973 and the Indian Evidence Act, 1872 were amended. Section 113-B was added to the IEA, 1872 which is a presumption as to dowry death. It was clear from the historical background that offence of dowry death under section 304-B was a new offence.Clause (1) of Article 20 provide protection against conviction for any offence except for violation of the law in force at the time of the commission of the act charged as an offence.The court held that, acceptance of the contention of appellant would deny the respondent with the protection afforded by clause (1) of Article 20. The contention of the counsel for the appellant that section 304-B inserted in the Indian Penal Code does not create a new offence and contains merely a rule of evidence is untenable.The rule of evidence to prove the offence of dowry death is contained in section 113-B of the Indian Evidence Act providing for presumption as to dowry death which was a simultaneous amendment made in the Indian Evidence Act for proving the offence of dowry death. The fact that the Indian Evidence Act was so amended simultaneously with the insertion of section 304-B in the Indian Penal Code by the same Amendment Act is another pointer in this direction and the contention is therefore rejected. DECISION HELD BY COURT: The appeal by the appellant was dismissed by the court with the above observations.

SONI DEVRAJBHAI BABUBHAI Vs STATE OF GUJARAT AND ORS DATE OF JUDGMENT28 08 1991 VERMA JAGDISH SARAN812 1991 SCC 298 JT 1991542 1991 SCALE Scope and object of Dowry death Death occuring prior to insertion of Section 304 B Section 304 B held prospective and consequently inapplicable It contains a substantive provision creating a new offence and does not merely effect a procedural change for trial of pre existing Indian Evidence Act 1872: Section 113 B. Presumption as to dowry death Section 113 B contains rule of evidence to prove the offence of dowry death Dowry Prohibition Act 1961: Purpose of Constitution of India 1950: Article 20(1) Protection against conviction for a new offence created subsequent to the commission of offence Appellant’s daughter was married to respondent No. 2 on 15.12.1984. She died on 13.8.1986. The appellant filed a criminal comp . laint against the respondents viz. daugh ter’s husband and his relatives for an offence under section 498 A triable by a Magistrate of First Class ’read with section 34 of the Indian Penal Code 1860 alleging that his daughter’s death was unnatural resulting from torture by her husband and his relatives. By Act No. 486 the Indian Penal Code was amended and Section 304 B offence of dowry death was inserted in the Code w.e.f. 19.11.1986. Since the newly inserted offence of dowry death was triable. by a Court of Session the appellant flied an application before the Magistrate for committing the case to the Caurt of Session for trial of offence under section 304 B. ’The Magistrate dismissed his application by holding that the amendment being prospective was inapplicable’to the case because the death had occurred prior to the amendment Thereafter the appellant filed an application in the High Court for a direction to Commit the case of dowry death to the Court of Session. The High Court also dismissed his application by holding that since the offence was committed prior to the date of insertion of section 304 B the section was not applicable to the case. In appeal to this Court on the question whether section 304 B of the Indian Penal Code was applicable to a case of dowry death where the death has occurred prior to the insertion of Section 304 B it was contended on behalf of the appellant that section 304 B of the Indian Penal Code does not create a new offence and contains merely a rule of evidence Dismissing the appeal this Court HELD: 1. The offence of dowry death punishable under section 304 B of the Indian Penal Code is a new offence inserted in the code with effect from .19.11.1986 when Act No. 486 came into force The said offence is punisha ble with a minimum sentence of seven years which may extend to life imprisonment and is triable by Court of Session. The corresponding amendments made by Act No. 486 in the Code of Criminal Procedure and the Indian Evidence Act relate to the trial and proof of the offence. Section 498 A inserted in the Indian Penal Code by the Criminal Law Second Amendment) Act 1983 is an offence triable by a Magistrate of the First Class and is punishable with impris onment for a term which may extend to three years in addi tion to fine. The offence of dowry death punishable under section 304 B provides for a more stringent offence than section 498 A. Section 304 is a substantive provision creat ing a new offence and not merely a provision effecting a change in procedure for trial of a pre existing substanative offence. The rule of evidence to prove the offence of dowry death is contained in section 113 B of the Indian Evidence Act providing for presumption as to dowry death which was a simultaneous amendment made in the Indian Evidence Act for proving ’the offence of dowery death. The fact that the Indian Evidence Act was so amended simul taneously with the insertion of section 304 B in the Indian Penal code by the same Amendment Act is another pointer in this direction There fore it cannot be held that section 304 B. does not create a new offence and contains merely a rule of evidence 818D F 819C D 2. The respondents are being tried in the Court of Magis trate of .the First Class for the offence punishable under section 498 A which was in the statute book on the date of death of Appellant’s daughter Their trial and punishment for the offence of dowry death provided in section 304 B of the Indian Penal Code ’with the minimum sentence of seven years’ imprisonment for an act done by them prior to creation of the new offence of dowry death would clearly deny to them the protection afforded by clauseof Article 20 of the Constitution. Accord ingly the view taken by the High Court that the respondents cannot be tried and punished for the offence provided in section 304 B of the Indian Penal Code which is a new offence created subsequent to the commission of the offence attributed to the respondents does not suffer from any infirmity. in the High Court of Gujarat .for a direction to commit this case of dowry death to ’the Court of Session since an ’offence punish able under section 304 B is triable by the Court of Session.’ By the impugned order dated January 10 1989 the High Court has dismissed that application. Hence this special leave petition Leave is granted The point arising for our decision is the applicability of section 304 B of the Indian Penal Code to the present case where the death alleged to be a dowry death occurred prior to insertion of section 304 B in the Indian Penal Code. This is the only ground on which the. appellant claims trial of the case in the Court of Session. The reason.given by the High Court to support its view is that the offence was committed prior to the date of insertion of section 304 B in the Indian Penal Code on account of which the section can have no application to the present case. None of the courts below. has examined the applicability .of any other pre existing more stringent provision even if section 304 B does not apply. As such affirmation of the view that section 304 B does not apply will not preclude the appellant from contending that any other more stringent provision is attracted on the accusa tion made. If that point is raised the courts below will have to decide the same on merits on the basis of accusation made. It is in this background that the point raised by the appellant regarding applicability of section 304 B is decid ed by us.. Section 304 B and the cognate provisions are meant for eradication of the social evil of dowry which has been the bane of Indian society ’and continues unabated in spite of emanicipation of women and the women’s liberation movement This all prevading malady in our society has only a few lucky exception in spite of equal treatment and opportunity to boys and girls for education and career. Society contin ues to perpetuate the difference between them for the pur pose of marriage and it is this distinction which makes the dowry system thrive. Even though for eradication of this social evil effective steps can be taken by the society itself and the social sanctions of the community can be more deterrent yet legal sanctions in the form of its .prohibi tion and punishment are some steps in that direction. The Dowry Prohibition Act 1961 was enacted for this purpsoe The Report of the Joint Committee of Parliament quoted the observations of Jawaharlal Nehru to indicate the role of legislation in dealing with the social evil as under " Legislation .cannot by itself normally solve deep rooted social problems One has to ap proach them in other ways too but legislation is necessary and essential so that it may give that push and have that educative factor as well as the legal sanctions behind it which help public opinion to be given a certain shape 816 The enactment of Dowry Prohibition Act 1961 in its original form was found inadequate. Experience shows that the demand of dowry and the mode of its recovery takes different forms to achieve the same result and various indirect and sophisticated methods are being used to ’avoid leaving any evidence of the offence. Similarly the conse quences of non fulfilment of the demand of dowry meted out to the unfortunate bride takes different forms to avoid any apparent causal connection between the demand of dowry and its prejudicial effect on the bride. This experience has led to several other legislative measures in the continuing battle to combat this evil The Criminal LawAct 1983was an act further to amend the Indian Penal Code the Code of Criminal Procedure 1973 and the Indian Evidence Act 1872. Section 498 A was inserted in the Indian Penal Code and corresponding amendments were made in the Code of Criminal Procedure which included section 198A .therein and also inserted section 113A in the Indian Evidence Act 1872. Thereafter the Dowry Prohibition Act 1986was enacted further to amend the Dowry Prohibition .Act 1961 and to make certain .necessary changes in the Indian Penal Code the Code of Criminal Procedure 1973 and the Indian Evidence Act 1872 Two of the salient features of the Dowry Prohibition Amendment) Act 1986stated in the State ment of Objects and Reasons of the Bill are as under "(e) Offences under the Act are proposed to be made non bailable "(g) A new offence of "dowry death is proposed to be included in the Indian Penal Code and the necessary consequential amend ments in the Code of Criminal Procedure 1973 and in the Indian Evidence Act 1872 have also been proposed Accordingly by section 7 of the Amendment Act section 8 of the Dowry’ Prohibition’ Act 1961 was amended to make every Offence under this Act non bailable while continuing it to be non compoundable. By sections 10 11 and 12 amendments were made in the Indian Penal Code Code of Criminal Proce dure 1973 and the Indian’ Evidence Act 1872 as part of the same scheme as follows "10. In the Indian Penal Code after section 304 A the following section shall be inserted namely ’304 B. Dowry death.Where the death of a woman is caused by any burns or bodily injury or occurs otherwise then under normal circumstances within seven years of her marriage and it is shown that .soon before her death she was subjected to cruelty or harass ment by her husband or any relative of her husband for Or in connection with any demand for dowry such death shall be called "dowry death" and such husband or relative shall be deemed to have caused her death Explanation For the purposes of this sub section ’dowry". shall have the same meaning as in section 2 of the Dowry Prohibi tion Act 196 1Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for "11. In the Code of Criminal Proce dure 1973 in the First Schedule after the entries relating to section 304 A the follow ing entries shall be inserted namely Section Offence Punishment COgnizable Bailable or By what or non non bail Court cognizable able tribale 1 2 3 4 5 6 304 B ’ Dowry Imprison Ditto Non Court of death ment of not bailable ’ Session lesS’ than seven years but which may extend to imprisonment for life "12. In the Indian Evidence Act 1872 after section 818 113 A the following section shall be insert ed namely: "11.3 B. Presumption as to dowry death. When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her ’death. such woman has been subjected by such .person to cruelty Or harassment for or in connecting with any demand for dowry the Court shall presume that such person had caused the dowry death Explanation. For the purpose of this section’ "dowry death" shall have the same meaning as in section 304 B of the Indian Penal Codeis an offence triable by a Magistrate of the First Class and is punishable with imprisonment for a term which may extend to three years in addition to fine. It is for the offence punishable under section 498 A which was in the statute book on the date of death of Chhaya that the respondents are being tried in the Court of Magistrate of the First Class. The offence punisha ble under section 304 B known as. dowry death was a new offence created with effect .from 19.11.1986 by insertion of the provision in the Indian Penal Code providing for a more stringent offence’ than section 498 A. Section 304 B is a substantive provision creating a new offence and not merely a provision effecting a change in procedure for trial of a pre existing substantive offence. Acceptance of the appel lant’s contention would amount to holding that the respond ents can be tried and punished for the offence of dowry death provided in section 304 B of the Indian Penal Code with the minimum sentence of seven years’ imprisonment for an act done by them prior to creation of the new offence of dowry death. In our opinion this would clearly deny to them the protection afforded by clauseof Article 20 of the Constitution which reads as under "20.. Protection in respect of con viction for offences. No person shall be convicted of any offence except for violation of the law in force at the time of the commis sion of the act charged as an offence ’nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. ’ ’ " In our opinion . the protection given by Article 20(1) is a complete answer to the appellant’s contention The contention ’of learned counsel ’for the appellant that section 304 B inserted in the Indian Penal Code does not create a new offence and’ contains merely a rule of evidence is untenable. The rule of evidence to prove the offence of dowry death is contained in section 113 B of the Indian Evidence Act providing for presumption as to dowry death which was a simultaneous’ amendment made in the Indian Evidence Act for proving the offence of dowry death. The fact that the Indian Evidence Act was so amended simultane ously with the insertion of section 304 B in the Indian Penal’ Code by the same Amendment Act is’ another pointer in this direction. This contention is therefore rejected In follows that the view taken by the High Court that the respondents cannot be tried and punished for the offence provided in section 304 B of the Indian Penal Code which is a new offence created subsequent ’to the commission of the offence attributed to the respondents does not suffer from any infirmity. However as earlier indicated in case the accusation against the respondents discloses commission of any other more stringent pre existing offence by the re spondents than section 498 A of the Indian Penal Code the appellant would be entitled to raise that question and the Court will then consider and decide it on that basis. No such argument having been advanced before us or any of the courts below so far the same does not arise for considera tion in the present proceeding. With these observations the appeal is dismissed T.N.A. Appeal dis

The driver of the vehicle should hold a valid driving licence as on the date of the accident: High Court of Delhi.

Insurance companies generally have this clause in their Insurance policies, as per which the driver of the vehicle should hold a valid driving license as on the date of the accident. A single Judge bench comprising of Hon’ble Justice Sanjeev Sachdeva in the matter of Baksh Ram Vs. SMT. Heena And Ors. (MAC.APP. 201/2021), dealt with an issue where the appellant filed an against the impugned judgement dated 18.09.2020 passed by the Motor Accident Claims Tribunal granting recovery right to the insurance company i.e. respondent No.7 against the appellant as well as the driver of the offending vehicle. In the present case, the counsel of the appellant submitted to the court that the driver of the vehicle had a driver’s license which had validity up to 10.11.2014, and the accident had taken place on 5.12.2014. the counsel also submitted that the driver of the vehicle had expired. Further, the counsel in reference to section 14 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act) stated that the said section states that the driving license continues to be effective for a period of 30 days from the date of its expiry. The counsel thereby stated that the tribunal wrongly held that the driver was not holding a driver’s license at the time of the accident and stated that the driver violated the terms and conditions of the insurance policy. The court observed that- “the accident had taken place on 05.12.2014, which was within 30 days of the expiry of the driving license on 10.11.2014. Accordingly, the driving license was effective on the date on which the accident took place”. Thereby the contentions of the contentions of the insurance company as noticed by the impugned order that there was a violation of the terms and conditions of the insurance policy was held not sustainable. Referring to the judgement of the Supreme Court in National Insurance Company Vs. Swaran Singh & Ors. (2004) 3 SCC 297, in which the apex court held that as per section 14 of the act, the driver’s license remains valid for a period of 30 days from the day of its expiry, the court held that- “the finding returned by the tribunal that the driver was not holding a valid driving license at the time of the accident is not sustainable and is set aside. Consequently, the right of recovery granted to the insurance company from the owner and driver of the vehicle is also set aside”. Thereby the appeal was allowed and directed the insurance company to deposit the awarded amount within a period of two weeks from the date of judgement passed.  The court also directed the tribunal to disburse the same to the claimants as per the scheme of disbursal, upon deposit of the amount.

IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on: 12th July 2021 MAC.APP. 201 2021 BAKSHA RAM Appellant SMT. HEENA AND ORS. Advocates who appeared in this case: For the Appellant: Mr. Pallav Gupta Mr. Ravin Rao and Mr. Akshit Sawal Respondents For the Respondents : Mr. A.K.Soni and Mr. Pavan Kumar Vashishth Advocates for R 7. CORAM: HON’BLE MR JUSTICE SANJEEV SACHDEVA SANJEEV SACHDEVA J. The hearing was conducted through video conferencing. Appellant impugns judgment dated 18.09.2020 passed by the Motor Accident Claims Tribunal to the limited extent that it grants recovery right to the insurance company i.e. respondent No.7 against the appellant as well as the driver of the offending vehicle. Learned counsel for the appellant submits that the driver has MAC.APP. 201 2021 already expired. Learned counsel for the appellant submits that the driving license of the driver was valid upto 10.11.2014 and the subject accident took place on 05.12.2014. He submits that in terms of second proviso to Section 14 of the Motor Vehicles Act 1988 the driving license continues to be effective for a period of 30 days from the date of its expiry and as such the Tribunal has erred in holding that the driver was not holding a valid driving license at the time of the accident and there is a violation of the terms and conditions of the insurance policy. Learned counsel relies on the decision of a coordinate bench of this Court dated 09.01.2019 in MAC.APP.866 2017 titled New India Assurance Company Ltd vs. Santoshi Devi &Ors. Section 14 of the Act reads as under: “14. Currency of licences to drive motor vehicles.— 1) A learner’s licence issued under this Act shall subject to the other provisions of this Act be effective for a period of six months from the date of issue of the 2) A driving licence issued or renewed under this Act shall — MAC.APP. 201 2021 in the case of a licence to drive a transport vehicle a) be effective for a period of three years: Provided that in the case of licence to drive a transport vehicle carrying goods of dangerous or hazardous nature be effective for a period of one year and renewal thereof shall be subject to the condition that the driver undergoes one day refresher course of the prescribed syllabus and Provided that in the case of licence to drive a transport vehicle carrying goods of dangerous or hazardous nature be effective for a period of one year and renewal thereof shall be subject to the condition that the driver undergoes one day refresher course of the prescribed syllabus and b) in the case of any other licence — i) if the person obtaining the licence either originally or on renewal thereof has not attained the age of fifty years on the date of issue or as the case may be renewal thereof — fifty years on the date of issue or as the case may be renewal thereof — A) be effective for a period of twenty years from the date of such issue or renewal or B) until the date on which such person attains the age of fifty years fifty years whichever is earlier if the person referred to in sub clause ii) has attained the age of fifty years on the date of issue or as the case may be renewal thereof be effective on payment of such fee as may be prescribed for a period of five years from the date of such issue or renewal: MAC.APP. 201 2021 shall this sub section its expiry under continue to be effective for a period of thirty days from such expiry.” In terms of proviso to Section 14 every driving licence notwithstanding its expiry continues to be effective for a period of 30 days from such expiry. Further Section 15 of the Act prescribes that on an application being made the licensing authority shall renew the driving license with effect from the date of its expiry however if an application is made more than 30 days after date of the expiry the driving licence shall be renewed with effect from the date of its renewal. from its expiry. 10. Section 15 in fact reaffirms the proviso to Section 14 that the driving licence continues to remain effective for a period of 30 days In the present case the accident had taken place on 05.12.2014 which was within 30 days of the expiry of the driving licence on 10.11.2014. Accordingly the driving licence was effective on the date on which the accident took place. 12. Since the driving licence continued to be effective on the date of the accident the contention of the insurance company as noticed by MAC.APP. 201 2021 accident. the impugned order that there was a violation of the terms and conditions of the insurance policy is not sustainable. 13. The condition of the subject insurance policy is that the driver of the vehicle should hold a valid driving licence as on the date of the 14. As noticed hereinabove since the driving licence continues to remain effective for a period of 30 days from the date of its expiry in terms of Section 14 of the Act it cannot be held that the driver was not holding a valid driving licence as on the date of the accident. 15. Reference may also be had to the judgment of the Supreme Court in National Insurance Company Vs. Swaran Singh & Ors. 2004) 3 SCC 297 wherein the Supreme Court has specifically held that the proviso appended to Section 14 in unequivocal term states that the licence remains valid for a period of 30 days from the day of its expiry. In view of the above the finding returned by the tribunal that the driver was not holding a valid driving licence at the time of accident is not sustainable and is set aside. Consequently the right of recovery granted to the insurance company from the owner and driver of the vehicle is also set aside. 17. The appeal is accordingly allowed in the above terms. MAC.APP. 201 2021 18. For the purposes of record it may be noticed that there is no challenge to the quantum of compensation awarded to the claimants. In view of the above insurance company is directed to deposit the awarded amount with the tribunal within a period of two weeks from today. On deposit of the amount the Tribunal shall disburse the same to the claimants as per the scheme of CM APPLN. 19273 202119. Since the appeal of the appellant has been allowed the appellant is exempted from depositing the statutory amount. 20. Copy of the order be uploaded on the High Court website and be also forwarded to learned counsels through email by the Court JULY 12 2021 SANJEEV SACHDEVA J MAC.APP. 201 2021

An indirect relief cannot be chosen when a direct relief is available: High Court of Telangana

Parties cannot resort to methods which are elaborate and involve higher authorities when readily available reliefs are directly available. There cannot be a shortcut method in the justice delivery system and everyone must go through the appropriate channels and must use the reliefs available. This was decreed by Hon’ble Justice Sri Justice T. Amarnath Goud in the case of Manchala Paramesh Vs. State of Telangana Rep. By its Principal Secretary, Panchayat Raj Department and Ors. [W.P.No.16382 of 2021] on the 22nd of July, 2021 before the Hon’ble High Court of Telangana at Hyderabad. The brief facts of the case are, the petitioner purchased an extent of 222 sq. yards from Chandra Sekhar Reddy and Pannala Buchi Reddy vide document No.4168/2020 dated 14.5.2020. In the month of April 2021, when he inspected his plot, he came to know that the respondent Nos.4 to 7 are trying to make constructions near his plot and trying to occupy it. Thereupon, the petitioner approached the third respondent and submitted a written complaint dated 23.4.2021 and requested to stop the illegal and unauthorized construction being made by the unofficial respondents. He also made representations before the second respondent in that regard, but no action has been taken. In spite of repeated requests, the third respondent neither conducted any spot inspection nor gave any response. The construction activity in the said plots is going on rapidly and if the same is not stopped, the petitioner would be put to irreparable loss and injury and it would even difficult for the third respondent to demolish the entire structure. Hence the present Writ Petition under article 226 is filed. The counsel for the petitioner submitted that, there was inaction on the part of the respondent No.3 in taking action against respondent Nos.4 to 7 who are trying to encroach the plots of the petitioner bearing Nos.51/A and 51/B in Sy.No.149/2/1/2/A admeasuring 222 sq. yards and this was illegal and arbitrary. The counsel for the respondent submitted that, the gram panchayat has more responsible works to attend rather than settling civil disputes between the petitioner and the unofficial respondents and in many matters offices of the gram panchayats are being burdened with such complaints to resolve their private issues, without approaching civil Court. The learned judge heard the submissions of both the parties and opined that the present case was a matter of private litigation. The court also observed that the petitioner has not placed on record and has not pointed out under what provision of the statute he filed a complaint before the respondent authorities and their obligation to consider the representations. Since there is no statutory obligation on the part of the respondent authorities to deal with the representation of the petitioner, the legal right of the petitioner for the inaction of the respondents is not infringed.

IN THE HIGH COURT FOR THE STATE OF TELANGANA HYDERABAD W.P.No.163821 Manchala Paramesh State of Telangana Rep. By its Principal Secretary Panchayat Raj Department Secretariat Hyderabad and Others. JUDGMENT PRONOUNCED ON: 22.7.2021 THE HON BLE SRI JUSTICE T.AMARNATH GOUD 1. Whether Reporters of Local newspapers may be allowed to see the Judgments Yes 2. Whether the copies of judgment may be Marked to Law Reporters Journals Yes 3. Whether His Lordship wishes to see the fair copy of the Judgment No T.AMARNATH GOUD J THE HON’BLE SRI JUSTICE T. AMRNATH GOUD WRIT PETITION No.16382 OF 2021 Manchala Paramesh State of Telangana Rep. By its Principal Secretary Panchayat Raj Department Secretariat Hyderabad and Others. Counsel for Petitioner Sri Kiran Palakurthi Counsel for the respondents Government Pleader for Panchayat Raj & Rural Development HEAD NOTE: Cases referred THE HON’BLE SRI JUSTICE T.AMARNATH GOUD WRIT PETITION No.16382 OF 2021 This Writ Petition under Article 226 of the Constitution of India is directed assailing the inaction on the part of the respondent No.3 in taking action against respondent Nos.4 to 7 who are trying to encroach the plots of the petitioner bearing Nos.51 A and 51 B Sy.No.149 2 1 2 A admeasuring 222 sq. yards situated at Cheeryal village and gram panchayat Keesara Mandal Medchal Malkajgiri District as illegal and arbitrary. The case of the petitioner in brief was that the petitioner purchased an extent of 222 sq. yards from Chandra Sekhar Reddy and Pannala Buchi Reddy vide document No.4168 2020 dated 14.5.2020. In the month of April 2021 when he inspected his plot he came to know that the respondent Nos.4 to 7 are trying to make constructions near his plot and trying to occupy it. Thereupon the petitioner approached the third respondent and submitted a written complaint dated 23.4.2021 and requested to stop the illegal and unauthorized construction being made by the unofficial respondents. He also made representations before the second respondent in that regard but no action has been taken. In spite of repeated requests the third respondent neither conducted any spot inspection nor gave any response. The construction activity in the said plots is going on rapidly and if the same is not stopped the petitioner would be put to irreparable loss and injury and it would even difficult for the third respondent to demolish the entire structure. Hence the present Writ Petition. Heard Sri Kiran Palakurthi learned counsel for the petitioner and learned Government Pleader for Pancahyat Raj and Rural The learned Government Pleader argued that the gram panchayat has more responsible works to attend rather than settling civil disputes between the petitioner and the unofficial respondents and in many matters offices of the gram panchayats are being burdened with such complaints to resolve their private issues without approaching civil Admittedly this is a private litigation between the petitioner and the unofficial respondents. It is the case of the petitioner that the unofficial respondents are raising structures on the land upon which the petitioner is having right and interest. Sections 113 and 114 of the Panchayat Raj Act are not applicable to the facts of the case. The petitioner has not placed on record and has not pointed out under what provision of the statute he filed a complaint before the respondent authorities and their obligation to consider the representations. Since there is no statutory obligation on the part of the respondent authorities to deal with the representation of the petitioner the legal right of the petitioner for the inaction of the respondents is not infringed. That basing upon the complaint of the petitioner if the official respondents act against the unofficial respondents it amounts to invoking the jurisdiction of the competent civil court having jurisdiction. It is not for the official respondents or even to this Court to decide right title and interest of the parties over the property. It is the trial court which would appreciate the evidence and decide the matter. Once the issue of right upon the property is decided the consequential relief of construction of houses upon the property of the petitioner can also be decided. Pending suit before the trial Court the petitioner can always seek an interim relief of injunction if so advised. Bypassing trial Court it is not open to the petitioner to involve the gram panchayat and approaching the High Court under Article 226 of the Constitution of India. There cannot be a shortcut method in justice delivery system. Avoiding a direct relief from civil court the petitioner cannot choose relief in an indirect way under Article 226 of the Constitution of India. The petitioner cannot agitate the cause of action for which the petitioner has an efficacious remedy before the competent civil court before a writ court under Article 226 of the Constitution of India or even before the gram panchayat because the rights of the petitioner or the unofficial respondents upon the subject property can be decided by the civil court only. Therefore the efficacious remedy available to the petitioner is to approach the competent civil court if he feels that his property rights are infringed but he cannot involve the gram panchayat official respondents as an arm twisting to get a relief against the unofficial respondents by way of filing a Writ Petition under Article 226 of the Constitution of India. For all the above reasons the Writ Petition is liable to be and is accordingly dismissed. No order as to costs. Miscellaneous petitions if any pending in this Writ Petition shall T. AMARNATH GOUD J. stand closed. Date: 22.7.2021 L.R. copy be marked B o Kvsn

Non-disclosure of minute details of sexual offence does not absolve the accused of the offence: Bombay High Court

When a victim of a sexual offence does not give out every minute detail regarding the offence, that does not imply that the offence never occurred and this certainly does not mean that the accused is not guilty of the offence under section 376 of the IPC. This was decreed by Hon’ble Justice Revati Mohite Dere in the case of Farukh Abdul Raheman Shaikh Vs. The State of Maharashtra [CRIMINAL APPEAL NO. 725 OF 2019] on the 18th of June 2021 before the Hon’ble High Court at Bombay. The brief facts of the case are, on 8th January 2016, the prosecutrix who is intellectually challenged and aged 21, did not return home. her family went in search of her and that at about 10:00 p.m., they saw the prosecutrix returning home. When the prosecutrix was questioned as to why she was late, she informed that one person (appellant) had taken her to a fair on his bike and from there, in the bushes in Ghosh compound, where she was undressed. She disclosed that the said person had inserted his finger in her private part. The prosecutrix pointed out to the appellant who was answering the nature’s call, close-by. When the appellant tried to flee from the spot on being pointed out, he was apprehended by the people and assaulted. The police were called and thereafter PW 1 (mother of the prosecutrix) lodged an FIR with the Dindoshi Police Station, Mumbai, which was registered vide C.R. No. 19/2016 for the offences under section 363, section 366 and section 376. On April 25th 2019, the learned additional sessions judge issued an order convicting and sentencing the appellant under the above-mentioned sections. Aggrieved by this, the present appeal has been filed by the appellant challenging his conviction under section 376. The counsel for the appellant submits that the appellant does not press the appellant’s conviction recorded under Sections 363 and 366 of the Indian Penal Code. According to the learned counsel for the appellant, since the prosecutrix had not given the details of the sexual assault in her evidence, the offence would not be one under Section 376 of the Indian Penal Code but would be a lesser offence. The defence of the appellant was that of denial and false implication. The counsel for the respondent vehemently opposes the submissions advanced by the learned counsel for the appellant. She submits that the evidence of the prosecutrix is duly corroborated by the medical case papers and the evidence by the doctor would clearly show that the prosecutrix was sexually assaulted and as such the offence would be one under Section 376. The learned judge heard the submissions by both the parties. To analyze as to whether the offence would be one under Section 376 or would be a lesser offence, the learned judge observed, that the prosecutrix was intellectually disabled. It was also observed that the prosecutrix has identified the appellant during trial as the same person who committed sexual assault on her. It was also observed from the evidence on record that the appellant had inserted his finger in the prosecutrix’s private part, which act is squarely covered under the definition of the offence `rape’, as defined under Section 375 of the Indian Penal Code. The said evidence gives credence to the prosecutrix’s case that she was sexually assaulted by the appellant. It hardly matters in the facts, and having regard to the evidence, that there was no penovaginal intercourse. Fingering of the vagina also constitutes an offence under the law.  The learned court dismissed the petition with the above-mentioned observations and decreed, “What cannot be lost sight of, is that the appellant was apprehended immediately on the very day, soon after the incident; the fact that the FIR was also lodged on the very same day and the prosecutrix was taken for medical examination on 9th January 2016 within 24 hours and was examined by the doctor. What also cannot be lost sight of, is the fact that the prosecutrix was intellectually challenged. In the facts, having regard to what is stated aforesaid i.e., the evidence on record, merely because the prosecutrix has not given minute details of sexual assault on her, would not absolve the appellant of the offence under Section 376.”

on 16 07 2021 on 17 07 30 Apeal 725 2019.docIN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 725 OF 2019 Farukh Abdul Raheman Shaikh Age 31 yrs Occ. Nil R o. Room No.1 Patel Chawl Indira Nagar Rani Sati Marg MaladMumbai 400 097...AppellantVersus1. The State of Maharashtra 2. XXXXXXXX ...RespondentsMr. Aniket Vagal for the Appellant Mr. S. V. Gavand A.P.P a w Mr. P. H. Gaikwad Patil A.P.P for theRespondent No.1State Ms. Devyani Kulkarni appointed Advocate for the Respondent No. 2 CORAM : REVATI MOHITE DERE J.FRIDAY 18 th JUNE 2021 JUDGMENT :1By this appeal the appellant has impugned the judgment andorder dated 25th April 2019 passed by the learned Additional Sessions SQ Pathan 1 12 on 16 07 2021 on 17 07 30 Apeal 725 2019.docJudge Borivali Division Dindoshi Goregaon Mumbai in Special CaseNo.116 convicting and sentencing him as under: for the offence punishable under Section 363 of the Indian PenalCode to suffer rigorous imprisonment for 5 years and to pay a fineof Rs.3 000 in default of payment of fine to suffer simpleimprisonment for 6 months for the offence punishable under Section 366 of the Indian PenalCode to suffer rigorous imprisonment for 7 years and to pay a fineof Rs.3 000 in default of payment of fine to suffer simpleimprisonment for 6 months for the offence punishable under Section 376 of the Indian PenalCode to suffer rigorous imprisonment for 10 years and to pay a fineof Rs.3 000 in default of payment of fine to suffer simpleimprisonment for 6 months. All the aforesaid sentences were directed to run concurrently. In addition to the aforesaid sentences and fine PW 2wasawarded compensation of Rs. 30 000 under Section 357 of the CriminalProcedure Code r w Victim Compensation Schemeand as such the matter was referred to the District LegalServices Authority Mumbai for compliance. SQ Pathan 2 12 on 16 07 2021 on 17 07 30 Apeal 725 2019.doc2 The prosecution case in brief is as under : According to PW 1 complainant mother of the prosecutrix(PW 2) the incident took place on 8th January 2016. PW 1 has alleged thatas her daughteraged 21 years and intellectually challenged did not return home she and her family went in search of her and that atabout 10:00 p.m they saw the prosecutrix returning home. When theprosecutrix was questioned as to why she was late she informed that onepersonhad taken her to a fair on his bike and from there in thebushes in Ghosh compound where she was undressed. She disclosed thatthe said person had inserted his finger in her private part. The prosecutrixpointed out to the appellant who was answering the nature s call close by.When the appellant tried to flee from the spot on being pointed out he wasapprehended by the people and assaulted. The police were called andthereafter PW 1lodged an FIR with theDindoshi Police Station Mumbai which was registered vide C.R. No.19 2016 for the offences stated aforesaid. During the course of investigation the statement of theprosecutrix was recorded under Section 164 of the Criminal ProcedureCode and the prosecutrix was sent for medical examination. Aftercompletion of investigation charge sheet was filed as against the appellant SQ Pathan 3 12 on 16 07 2021 on 17 07 30 Apeal 725 2019.docin the Court of the learned Metropolitan Magistrate 67th Court Borivali Mumbai. The case was committed to the Court of Sessions since theoffence under Section 376 was exclusively triable by the Court of Sessions. The learned Sessions Judge framed charge as against theappellant to which he pleaded not guilty and claimed to be tried. Theprosecution in support of its case examined 13 witnesses i.e. PW 1 complainant and mother of the prosecutrix who lodged the FIRPW 2 prosecutrix PW 3 PSI Deepak Golatkar who received awireless call about the incident and visited the spot and took the accused tothe police station PW 4 Mrs. Meena neighbour of PW 2 PW 5 Mr.Subhash neighbour of PW 2 who called the police by dialing “100” andgave information of the incident to the police PW 6 Mrs. Kalpana whoaccompanied the complainant and the prosecutrix to the police station PW 7 Ms. PallaviPW 8 Dr. Poornima Medical Officer whoexamined the prosecutrix and prepared the medical reportPW 9 PSI Mr. Yogesh Patilwho recorded the statement of PW 1and registered the FIR and arrested the accused under arrest panchanama(Exhibit 26) PW 10 Mr. Nobendu Roy who sold his motorcycle to theappellant which was used in the commission of the offence PW 11 APISachin Suryawanshi the Investigating Officer who visited the spot and SQ Pathan 4 12 on 16 07 2021 on 17 07 30 Apeal 725 2019.docprepared the spot panchanama collected samples of soil took themotorcycle of the appellant in custody seized the clothes of the victim andthe appellant recorded statements of witnesses sent the prosecutrix and theappellant for medical examination sent the samples to the ChemicalAnalyser and after investigation submitted charge sheet PW 12 Mohd.Hussain Choudhary panch to the seizure panchanama of the appellant sclothesand PW 13 Mrs. Sanchita More panch to the seizurepanchanama of the clothes of the prosecutrixin para 1. The defence of the appellant was that of denial and falseimplication. After recording of the 313 statement of the appellant and afterhearing the parties learned Sessions Judge convicted the appellant as statedaforesaid. 3 Mr. Aniket Vagal learned counsel for the appellant does notpress the appellant’s conviction recorded under Sections 363 and 366 of theIndian Penal Code. He submits that as far as the offence under Section 376is concerned the act of the appellant would not fall within the purview ofSection 375 and that at the highest taking into consideration the evidenceon record the act of the appellant would be one under Section 354 of theIndian Penal Code. SQ Pathan 5 12 on 16 07 2021 on 17 07 30 Apeal 725 2019.doc4 Ms. Devyani Kulkarni appearing for the respondent No. 2vehemently opposes the submissions advanced by the learned counsel forthe appellant. She submits that the evidence of the prosecutrix is dulycorroborated by the medical case papers and that the evidence of PW 8 Dr.Poornima would clearly show that the prosecutrix was sexually assaultedand as such the offence would be one under Section 376. 5Mr. Gavand learned A.P.P reiterated the submissions advancedby the learned counsel for the respondent No.2. 6Perused the evidence and the relevant documents with theassistance of the learned counsel for the parties. As stated aforesaid theappellant is not challenging his conviction under Sections 363 and 366 ofthe Indian Penal Code and hence it is not necessary to delve into theevidence pertaining to the same. 7As far as the submission of the learned counsel for theappellant as to whether the offence would be one under Section 376 orwould be a lesser offence the relevant witnesses which will have to beconsidered are PW 1 complainant PW 2 the prosecutrix PW 8 Dr.Poornima and PW 6 Kalpana Gholap as well as the CA and DNA reports. SQ Pathan 6 12 on 16 07 2021 on 17 07 30 Apeal 725 2019.doc8 The fact that PW 2 prosecutrix aged 21 years wasintellectually challenged is not in dispute. PW 1 complainant and motherof the prosecutrix has stated that on the date of the incident i.e. 8th January2016 when she returned home she did not find her daughtershe disclosed that one boy had taken her on bike to Ghoshcompound and had sexually assaulted her. When asked to show the boy she pointed out at the boypursuant to which people held himand called the police by dialing 100. She has further stated that the policearrived on the spot and took all of themto thepolice station. A perusal of the cross examination reveals that instead ofgiving any suggestions to the said witness putting up the appellant sdefence the witness was put questions resulting in the witness reiteratingher evidence that has come in her examination in chief and infact more. SQ Pathan 7 12 on 16 07 2021 on 17 07 30 Apeal 725 2019.docPara 8 of PW 1 s cross is reproduced hereunder :“8. My daughter is mentally ill doctor told us that jar ti10 varshachi zali tar ticha mendupaach varshachaasel. I can understand whatever she talk. I can understandher language. When my daughter meet me on the road Isaw her position. Her hair was scattered. There was bloodstains on her clothes to back side. I gave her slap wherewere you. She told me not to slap her. She told me thatmala ek mulga gadi varti gheun jangala madhe gela animaze kapade kadhale to mazya angavar aala ani chatidabali ani tyane tyache ling aat madhe ghatle me nakonako bolat hoti.” Cross examination of a witness is to elicit truth or discredit thewitness. Infact having regard to the cross examination of PW 1 there isnothing in the said cross examination to disbelieve her testimony. 9 PW 2 prosecutrix intellectually challenged and the same is notseriously disputed. She has stated that she had been to Kalimata Mandirand that one person told her “yete ka Mela baghayla” to which she replied“mi nahi yenar Mummy marnar”. She has further stated that the appellantheld her hand and took her to the Mela and thereafter in the bushes disrobed himself as well as the prosecutrix and slept on her. She has statedthat when she returned home she was holding her underwear in her hand. SQ Pathan 8 12 on 16 07 2021 on 17 07 30 Apeal 725 2019.docThe prosecutrix has identified the appellant during trial as the same personwho committed sexual assault on her. There is hardly any cross examination of this witness. Thesuggestion that she was falsely deposing has been denied by theprosecutrix. There is also no cross to the evidence of the prosecutrix thather statement was recorded by the Magistrate under Section 164 of theCriminal Procedure Code. The disclosure made by the prosecutrix withrespect to sexual assault on her is duly corroborated by PW 6 Kalpana. 10 According to the learned counsel for the appellant since theprosecutrix had not given the details of the sexual assault in her evidence the offence would not be one under Section 376 of the Indian Penal Codebut would be a lesser offence. 11A perusal of the evidence of PW 8 Dr. Poornima reveals thatthe prosecutrix had given history of sexual assault by the appellant on 8thJanuary 2016 between 7:00 p.m to 11:00 p.m. The history given by theprosecutrix to the doctor and as revealed in the case papersisas under : SQ Pathan 9 12 on 16 07 2021 on 17 07 30 Apeal 725 2019.doc“Sexual assault by unknown person named FarukhAbdul Rehman Shaikh aged 27 yrs on 8 1 16 at between 7pm 11 pm. Victim has changed clothes but not taken bathsince incidence. Victim gives H o penovaginal sexualintercourse. No h o physical assault. Being mentallychallenged victim is unable to narrate the above incidenceproperly.” The case papers further reveal that there were injuries presentto the hymen and the position of tears was 4 8 O’Clock.12 It appears from the evidence on record that the appellant hadinserted his finger in the prosecutrix s private part which act is squarelycovered under the definition of the offence `rape as defined under Section375 of the Indian Penal Code. The medical papers of the prosecutrix revealthat there was injury to the hymen and the position of tear was 4 8 O Clock.The fact that the appellant had inserted his finger is also duly corroboratedby the DNA report (Exhibit 40). The result of the analysis shows that oneof the mixed DNA profile obtained from Exhibit 1 nail clippings of righthand of appellant matched with control DNA profile obtained from Exhibit2 nail clippings of left hand and Exhibit 4 urethral swab of appellant.Another DNA profile from the mixed DNA profile obtained from Exhibit 1nail clippings of right hand of appellant matched with control DNA profile SQ Pathan 10 12 on 16 07 2021 on 17 07 30 Apeal 725 2019.docobtained from Exhibit 7 nail clippings of right hand and Exhibit 8 nailclippings of left hand of the prosecutrix in F.S.L. ML. Case No. DNA 484 16. Similarly the soil found on the clothes of appellant andprosecutrix matched the earth collected from the spot where the sexualassault took place. The same is evident from the Forensic ScienceLaboratory report (Exhibit 41). The said evidence gives credence to theprosecutrix s case that she was sexually assaulted by the appellant. It hardlymatters in the facts and having regard to the evidence that there was nopenovaginal intercourse. Fingering of the vagina also constitutes an offenceunder the law. 13 What cannot be lost sight of is that the appellant wasapprehended immediately on the very day soon after the incident the factthat the FIR was also lodged on the very same day and the prosecutrix wastaken for medical examination on 9th January 2016 within 24 hours and wasexamined by the doctor. What also cannot be lost sight of is the fact thatthe prosecutrix was intellectually challenged. In the facts having regard towhat is stated aforesaid i.e. the evidence on record merely because theprosecutrix has not given minute details of sexual assault on her would notabsolve the appellant of the offence under Section 376. SQ Pathan 11 12 on 16 07 2021 on 17 07 30 Apeal 725 2019.doc14Considering the material on record the conviction of theappellant under Section 376 of the Indian Penal Code cannot be said to beunwarranted. Accordingly the judgment and order of conviction andsentence is upheld. The Appeal is dismissed. REVATI MOHITE DERE J. SQ Pathan 12 12

Suit for permanent injunction based on claim under Section 53-A of Transfer of Property is Maintainable- High Court of Punjab and Haryana.

Suit for permanent injunction based on claim under Section 53-A of Transfer of Property is Maintainable- High Court of Punjab and Haryana. Section 53 (A) states that where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty and the transferee has. The landmark judgement passed by the single bench of HON’BLE JUSTICE RAJBIR SEHRAWAT in RAJENDER SINGH V NANAK SINGH (RSA No. 988 of 2011 (O&M)) dealt with the issue mentioned above. In this case the respondent had filed a suit for declaration of his title and for injunction, claiming that the defendant be restrained from interfering in possession of the plaintiff .Who had become owner of the property; by virtue of Section 53-A of the Transfer of Property Act, 1882 but due to some wrong records of revenue, the person from whom the land was brought he sold it to the present petitioner Rajender Singh. Both the parties filed suit in lower court, the judgement was given in the favor of the present petitioner aggrieved by this the respondent filed another suit in lower appellate court, the judgement was on his favor as he had purchased the land rightfully, aggrieved by this order the petitioner moved to the High court by the way of this petition. The learned counsel for the appellant has submitted that the lower Appellate Court has not recorded a finding that the plaintiff Nanak Singh had fulfilled the ingredients of Section 53-A of the Act. Therefore, it is his submission that the benefit of Section 53-A of the Act, cannot be extended to plaintiff Nanak Singh, even if the defendant is held to be not bona fide purchaser, although, the defendant has proved on record that he was a bona fide purchaser. He has proved revenue record, which show no entry regarding the agreement in question by referring the supreme court judgement in Suraj Lamp Vs. State of Haryana (2011(4) RCR (Civil) 669). The learned counsel for the state contended The counsel for the respondent/plaintiff further submits that Section 53-A of the Act can very well be invoked by a person for protecting his possession, merely because the agreement in his favor is not reflected in the revenue record and the defendant claims to have verified from the revenue record; that does not exclude the notice to the defendant/purchaser. The Hon’ble court analyzed the facts of the present case and the arguments of both the parties and opined that “the Section of 53-A provides two eventualities, i.e. the vendee should either have performed his part of agreement, or in alternative, he should be willing to perform his part of agreement claim the benefit of Proviso to Section 53-A of the Act, the defendant was required to prove that he had no notice of the transaction in favor of the plaintiff. The defendant-Rajender Singh cannot be held to be a bona fide purchaser. Hence finding no perversity, the judgment and decree passed by the lower Appellate Court are upheld. In view of the above, finding no merits, both the appeals are dismissed.”

on 14 12 RSA 988 2011 & RSA 4886 20111IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARHRSA No. 9811thr. his LRs. and Ors. .....RespondentsRSA No. 48811(ii) andin the present appeal filed a suit fordeclaration of his title and for injunction claiming that the defendant berestrained from interfering in possession of the plaintiff. It was pleaded thatthe suit property which is land measuring 04 marlas was owned byManphool Singh defendant No.1 in the suit who was the real brother ofNanak Singh. Manphool Singh and Nanak Singh were otherwise co sharersin the land. However Manphool Singh entered into an agreement dated08.07.1981 with Nanak Singh. As per the agreement the said ManphoolSingh agreed to sell the land to Nanak Singh. Consideration for the saidtransaction was fixed to be Rs.2000 . The entire consideration was paid bythe plaintiff Nanak Singh. It was further recorded in the agreement that thepossession of the suit land has been given to the plaintiff. However no datefor execution of the sale deed was fixed by the parties to the agreement. Itwas further pleaded that the plaintiff had become owner of the property byvirtue of Section 53 A of the Transfer of Property Act 1882. However taking advantage of continuing wrong entries in the revenue record thedefendant Manphool Singh intended to alienate the suit property in favourof somebody else. It was further claimed that plaintiff made numerousrequests to the defendant not to alienate the suit property. However thedefendant was adamant. Therefore the suit was filed. Notice in the suit was issued. However the service upon theManphool Singh was yet to be effected because he had shifted toRajasthan. On 20.11.2007. The counsel for the plaintiff got a recordedstatement that defendant No.1 Manphool Singh had died. Still further itwas stated by the counsel that Manphool Singh had already sold the on 14 12 RSA 988 2011 & RSA 4886 20113property to the present appellant i.e. Rajender Singh. Accordingly theplaintiff amended the plaint to implead the subsequent purchaser i.e. theappellant in the present appeal as defendant No.2 in the suit. The same wasallowed. After being impleaded as defendant the presentappellant defendant No.2 in the original suit filed written statementcontesting the claim of the plaintiff. It was claimed that the plaintiff had nocause of action and that the contesting defendant was the bona fidepurchaser for consideration and without notice. Ownership of the plaintiffover the suit property was denied by him.Replication was filed and the averments in the plaint werereasserted re affirmed by the plaintiff. The possession of the plaintiff overthe suit property was asserted by the plaintiff in replication as well. Theaverments raised by the defendant were denied. The sale deed dated23.07.2004 registered on 03.08.2004 in favour of newly added defendantwas also questioned as being fraudulent and as not conferring any titleupon the defendant. After considering the pleadings of the parties the Trial Courtframed the issues as follows:1.Whether the plaintiff is owner in possession of the suitproperty on the basis of agreement dated 8.7.1981. If sowhat effect OPP.2.Whether the plaintiff entitled to protection under Section53 A of Transfer of Property Act OPP.3.Whether the plaintiff is entitled to relief of permanentinjunction as prayed for OPP.4.Whether the plaintiff has no cause of action to file the on 14 12 RSA 988 2011 & RSA 4886 20114present suit OPD.5.Whether the plaintiffis not properly valued forpurpose of court fee and jurisdiction OPD.6.Whether the defendant Rajender Singh is bonafidepurchase for value and consideration without notice. Ifso what effect OPD.7.Whether the plaintiff is not maintainable in the presentcase for 8.Relief.However in the meantime the defendant in the suit filed byNanak Singh i.e. Rajender Singh had also filed his own suit for partition claiming that the above said Manphool Singh has executed a sale deed inhis favour on 23.07.2004 which was got registered on 03.08.2004. It wasfurther submitted by him that mutation No.1108 in this regard was alsoentered in the revenue record. Hence he claimed possession over the suitproperty by way of partition. In this suit Nanak Singh filed writtenstatement pleading that Rajender Singh was not the owner in possession ofthe land. It was further claimed that on the date when the sale deed wasexecuted in his favour even his vendor Manphool Singh was not competentto transfer the title to Rajender Singh. The sale deed was pleaded to bewrong null and void. The pleadings regarding the agreement in favour ofNanak Singh were reiterated by him in written statement in the second suitalso. Defendants No.3 and 4 in the second suit also supported the claim ofNanak Singh.On the basis of these pleadings the Trial Court framed thatissues in this suit as follows: on 14 12 RSA 988 2011 & RSA 4886 201151.Whether the plaintiff and defendants are co sharers in thesuit land OPP.2.If issue No.1 is proved whether the plaintiffs are entitledfor partition of suit property OPP.3.Whether the sale deed executed on 23.7.04 and registeredon 3.8.04 was hit by the provisions of lispendens and thepresent suit is not maintainable.4.Whether the plaintiffs has no locus standi to file thepresent suit OPD.5.Whether the plaintiff is estopped from filing the presentsuit by his own act and conduct OPD.6.Whether the present suit is bad for deficient in the courtfee OPD.7.Relief. After framing of the issues both the suits were consolidated forthe purpose of evidence treating the suit filed by Nanak Singh as theprimary suit. Accordingly the common evidence was led in both the suits. The parties led their evidence.After hearing the parties and appreciating the evidence theTrial Court held the agreement in favour of Nanak Singh to be validlyexecuted and held the same to be proved by the plaintiff Nanak Singh. Thiswas held to be proved on the basis of testimony of PW 4 Rawat Singh andPW 5 Phool Singh the testimony of the plaintiff Nanak Singh and thetestimony of Subhash Chand Gupta the deed writer of the agreement. On the other hand the sale deed dated 23.07.2004 in favour ofdefendant Rajender Singh who was the plaintiff in the second suit was also on 14 12 RSA 988 2011 & RSA 4886 20116held to be proved on the basis of testimony of PW 2 Satya Narain the deedwriter PW 3 Banwari Lal the attesting witness and PW 4 Rajender Singhhimself.Faced with this situation the Trial Court was confronted withthe proposition of Section 53 A of the Act. While dealing with thecontentions of the respective parties the Trial Court held that the case ofthe defendant Rajender Singh in the suit of Nanak Singh stand proved. Itwas held that he has succeeded in proving that the defendant RajenderSingh had no notice of the agreement in favour of the plaintiff at the timewhen he purchased the suit land. The Trial Court held the defendant Rajender Singh to be bona fide purchaser on the ground that there was noreflection of the agreement in favour of Nanak Singh in the revenue record.It was further recorded that Rajender Singh was not a witness to theagreement claimed by the Nanak Singh. He is not relative of Nanak Singhand Manphool Singh. Therefore it was held that it can hardly be said that Rajender Singh had any notice of the agreement of 1981. Hence it washeld that the defendant Rajender Singh is entitled to the benefit of Provisoto Section 53 A of the Transfer of Property Act. Still further the TrialCourt held that the plaintiff Nanak Singh had failed to show that he wasready and willing to perform his part of contract because he had not filed asuit for specific performance against Manphool Singh. However the TrialCourt also recorded that even if it is presumed that plaintiff Nanak Singhwas ready and willing to get the sale deed executed still the agreement hasnot been registered despite being accompanied with the possession.Therefore this agreement does not stand in the way of the defendant Rajender Singh in his claim of the benefit of Proviso to Section 53 A of the on 14 12 RSA 988 2011 & RSA 4886 20117Act. Resultanly vide a common judgment the suit filed by the plaintiffNanak Singh was dismissed and the cross suit filed by the defendant Rajender Singh was decreed accordingly granting him a preliminary decreeof partition for possession of his share in the suit property. Aggrievedagainst the judgment and both the decrees Nank Singh had filed theappeals before the lower Appellate Court. However Rajender Singh thedefendant in the suit of Nanak Singh had not preferred any appeal or cross objections before the lower Appellate Court.The lower Appellate Court however reversed the judgmentand decrees passed by the Trial Court and allowed the appeals filed byNanak Singh. Resultantly the preliminary decree of partition passed infavour of Rajender Singh was set aside. The decree of dismissal of suit ofNanak Singh was reversed and the suit was decreed qua granting him thepermanent injunction. While reversing the judgment and decree passed bythe Trial Court the lower Appellate Court recorded that the agreement infavour of Nanak Singh has already been held to be proved by the TrialCourt and it has also been proved by the witnesses that Manphool Singh hadgiven possession to the plaintiff Nanak Singh and thereafter he has beenresiding continuously in the disputed plot. Therefore the question ofprotection of Section 53 A of the Act is required to be considered. Whileconsidering this aspect the lower Appellate Court first of all held that theagreement in question claimed by the Nanak Singh did not require anyregistration because it was entered into between the parties before theamendment of Registration Act w.e.f. 24.09.2001. The lower AppellateCourt further held that the defendant Rajender Singh himself has admittedthe possession of the appellant Nanak Singh over the suit property by on 14 12 RSA 988 2011 & RSA 4886 20118admitting that Nanak Singh had made a boring in the disputed property andthat other co sharer had also given possession of their shares to appellantNank Singh who have raised the boundary wall of the plot in question.Therefore it was held by the lower Appellate Court that Rajender Singhshall be deemed to have the knowledge of the appellant s interest in the suitproperty. Hence Rajender Singh was required to inquire from theappellant as to the nature of his possession. Since he has failed to makesuch inquiry from the appellant himself therefore the defendant RajenderSingh cannot be held to be bona fide purchaser. Hence it was held by thelower Appellate Court that the defendant Rajender Singh is not entitled tothe benefit of Proviso to Section 53 A of the Act. Accordingly vide acommon judgment the lower Appellate Court allowed both the appeals filed by Nanak Singh. As a result the suit of Nanak Singh was decreed quapermanent injunction and the suit filed by the Rajender Singh for partitionwas ordered to be dismissed as mentioned above. Against the judgmentand the decrees passed by the lower Appellate Court Rajender Singh defendant No.2 in the suit filed by Nanak Singh has filed the present boththe appeals.While arguing the case learned counsel for the appellant hassubmitted that the lower Appellate Court has not recorded a finding that theplaintiff Nanak Singh had fulfilled the ingredients of Section 53 A of theAct. Therefore it is his submission that the benefit of Section 53 A of theAct cannot be extended to plaintiff Nanak Singh even if the defendant isheld to be not bona fide purchaser although he has submitted that thedefendant has proved on record that he was a bona fide purchaser. He hasproved revenue record which show no entry regarding the agreement in on 14 12 RSA 988 2011 & RSA 4886 20119question. Still further it is his submission that the possession of plaintiffNanak singh is also not exclusive because the suit land is recorded as ajoint holding of the plaintiff Nanak Singh and Manphool Singh along withother persons before the purchase by Rajender Singh and with RajenderSingh after the execution of the sale deed in favour of Rajender Singh asper the mutation entered into revenue record. Learned counsel for theappellant has further submitted that the lower Appellate Court has falteredin law in granting a decree for injunction in favour of the plaintiff NanakSingh because the plea of Section 53 A of the Act can be raised only as adefence and the suit for injunction is also not maintainable in a claim basedon strength of Section 53 A of the Act. It was further claimed by theappellant that despite having questioned the sale deed in favour of thedefendant the plaintiff has not formally challenged the sale deed in hisfavour by amending the suit. Therefore the sale deed in favour of theappellant defendant has remained intact. In the end the counsel for theappellant again stresses the argument that the ingredients of Section 53 A ofthe Act have not been substantiated by the plaintiff Nanak Singh and hence he cannot claim the benefit of Section 53 A of the Act. To support hisarguments learned counsel for the appellant relies upon the judgment ofHon ble Supreme Court rendered in 2011(4) RCR669 titled as SurajLamp and Industries Pvt. Ltd. Vs. State of Haryana and Another tocontend that mere agreement to sell does not convey a title and therefore suit for declaration of title on the basis of agreement referred to in Section53 A of the Act is not maintainable. The counsel further relies upon thejudgment of the Hon ble Supreme Court rendered in 2008RCRPLR 56 titled as JarnailSingh Vs. Daljit Singh and Ors. to contend that if the ingredients of Section53 A of the Act are not satisfied then even the possession of the personclaiming agreement is not to be protected by the Court. In the end thecounsel has relied upon the judgment of the Hon ble Supreme Courtrendered in 2016RCR592 titled as Guman Singh and Ors. Vs.Manga Singhby LRs. and Ors. to support his argument that the plea ofSection 53 A of the Act can be taken only as a defence and not as apositive basis for filing a suit as plaintiff. It can be used only as shield andnot as a sword.On the other hand learned counsel for the respondent plaintiffhas submitted that the plaintiff has proved on record the agreement inquestion. It is his further submission that even the Court below has held theagreement to be proved on record of the case. No appeal had been filed bythe present appellant against that finding. Still further it is submitted by thecounsel for the respondent that he has proved all the ingredients as requiredunder Section 53 A of the Act. The counsel submits that as per the terms ofagreement the entire amount of the consideration stood paid. Possessionhad already been taken by the plaintiff. Therefore according to the learnedcounsel for the respondent plaintiff the part of the agreement required to beperformed on the part of the plaintiff already stood performed. Nothingelse was required to be done by him for the maturity of the agreement into a 1 on 14 12 RSA 988 2011 & RSA 4886 201111full fledged sale. So far as the execution of the sale deed is concerned it issubmitted by the counsel that since the vendor Manphool Singh had shiftedto Rajasthan and was not readily available therefore he had no opportunityto get the sale deed executed. The counsel for the respondent plaintifffurther submits that Section 53 A of the Act can very well be invoked by aperson for protecting his possession. For that purpose counsel has reliedupon the judgment reported in AIR 1994 Bombay 254 titled as Dharmajialias Baban Bajirao Shinde vs. Jagannath Shankar Jadhav incedeceased by his heirs Bhanudas Jagannath Jadhav etc.. Still further it issubmitted by the learned counsel that the defendant has abjectly failed toprove that he had no notice regarding the existence of agreement in favourof the plaintiff Nanak Singh. Therefore he is not entitled to seek theprotection of Proviso to Section 53 A of the Act. Counsel further submitsthat merely because the agreement in his favour is not reflected in therevenue record and the defendant claims to have verified from the revenuerecord that does not exclude the notice to the defendant purchaser since hewas residing in the house adjacent to the house of the plaintiff NanakSingh. Learned counsel for the respondent relies upon the judgement ofthis Court rendered in 2005RCR677 titled as Bal Singh andOrs. Vs. Ravinder Singh and Ors. Regarding the validity of the sale deed infavour of the defendant the counsel submits that since the vendor ofdefendant Rajender Singh could not have transferred the title therefore anysale deed claimed by the defendant is null and void as claimed in thereplication filed by the plaintiff. Having heard learned counsel for the parties and perusing therecord with their able assistance this Court is of the considered opinion that 1 on 14 12 RSA 988 2011 & RSA 4886 201112the counsel for the appellant has failed to substantiate his argument withreference to the record. So far as the agreement in favour of the plaintiffNanak Singh is concerned the same has already been held to be proved bythe Trial Court. That finding has become final also. Therefore there is nodispute regarding the validity of the agreement in favour of Nanak Singh inthe present appeal. However the submission of the counsel for theappellant that the ingredients of the Section 53 A of the Act has not beenfulfilled in the case is also not sustainable. It has come on record and hasbeen proved by the plaintiff that the possession of the suit land had beendelivered to the plaintiff at the time of agreement in question. This fact isrecorded in the agreement also. Hence the deposition of the witnessesexamined by the plaintiff regarding possession gets related to the recital inthe agreement in favour of the plaintiff. This shows that the possession infact had been delivered to the plaintiff at the time of execution of theagreement itself. Still further the defendant Rajender Singh has alsoadmitted in cross examination that he had the knowledge that other co sharers had given possession of their respective shares to the plaintiff NanakSingh. He has even admitted in the cross examination the site plan of theproperty as was pleaded and proved by the plaintiff. The site plain alsoshows the boundaries to the suit property. Although defendant has assertedthat boundary was raised by plaintiff after the purchase of the suit land bythe defendant however he has not led any cogent evidence on this aspects.Otherwise also since the plaintiff was co sharer in the suit property with hisseller Manphool Singh so after the purchase he shall be deemed to be inpossession of share of Manphool Singh as well. Hence the ingredient ofSection 53 A of the Transfer of Property Act regarding execution of the 1 on 14 12 RSA 988 2011 & RSA 4886 201113agreement and taking of the possession stand proved by the plaintiff. Sofar as the remaining ingredients regarding doing something in furtherance ofthe agreement and readiness and willingness on the part of the plaintiff toperform his part of the agreement are concerned the same also stand dulyproved by him. It has come on record that after the possession was takenover by him he has altered the status of the land by raising construction andinstalling the boring and other equipment over the suit land. This he hasdone only in furtherance of the authority granted to him under theagreement in question. So far as the other ingredients namely the readinessand willingness of the plaintiff to get the sale deed executed in his favour isconcerned the Section of 53 A provides two eventualities i.e. the vendeeshould either have performed his part of agreement or in alternative heshould be willing to perform his part of agreement. As has come on recordin the present case the part of the contract which was required to beperformed by the plaintiff qua this agreement already stood performed byhim since he had already paid the entire amount of consideration and hehad taken possession of the suit land as a part of the performance of theagreement. Only thing which was required to be done in that situation was to be done by the vendor Manphool Singh only by executing the sale deed.However the same could not be done by him since Manphool Singh wasnot available having shifted to Rajasthan. For this missing element by anymeans it cannot be said that the plaintiff has not performed his part ofagreement as enjoined upon him under the agreement in question. The judgments cited by the learned counsel for the appellantare not helpful to the case of the appellant. The same are distinguishable onthe facts of the present case. So far as the judgment of Suraj Lamp and 1 on 14 12 RSA 988 2011 & RSA 4886 201114Industries Pvt. Ltd.is concerned the same is an authority on thepoint that the agreement referred to in Section 53 A of the Act cannot beused for claiming a title. However in the present case though the plaintiffhad sought a declaration of title also however the same has not beengranted by the Courts below to him. The plaintiff has been granted only aninjunction in his favour qua his possession. Therefore this judgment is notapplicable in the present case. So far as the judgement rendered in A.Lewisand Anr.(Supra) is concerned the same is also distinguishable in thepresent case. As mentioned above the plaintiff had already performed hispart of the contract. Therefore there is no silence or slumbering on his part.The only thing required to be done was the execution of the sale deed byvendor. For that also admittedly no date was specified. Hence it cannotbe said that the plaintiff was not justified in waiting for the vendor toexecute the sale deed as and when he returns from Rajasthan. Otherwisealso getting the sale deed executed immediately or within any specified timeperiod is not a requirement under Section 53 A of the Act. So the failure ofthe purchaser to get the sale deed executed within some reasonable time though may be undesirable yet it can not operate as a statutory bar againstthe statutory right of the purchaser guaranteed by Section 53 A of the Act.Needless to say that the desirability of an act and the legal requirement ofsuch act are two different things. The mere desirability can not be raised tothe level of legal necessity particularly when it is not prescribed by therelevant statutory provision. The reliance by the learned counsel for theappellant upon the judgment in case of Jarnail Singhis also notrelevant for the purpose of present case. As stated above the ingredients ofSection 53 A of the Act has been fully established by the plaintiff in the 1 on 14 12 RSA 988 2011 & RSA 4886 201115case. He has not been granted any declaration of his title. However so faras the injunction part is concerned he has claimed in the suit and he hassatisfied the ingredients of the Section 53 A of the Act therefore thisjudgment does not stand in his way as such to deprive him the statutoryprotection. The last judgment sought to be relied upon by the counsel forthe appellant is the judgment rendered by the Hon ble Supreme Court inGuman Singh and Ors.to contend that the plea of Section 53 Aofthe Act can be taken only as a defence and it cannot be made a basis forfiling a suit by coming as plaintiff. However this judgment is also notapplicable in the present case. A perusal of this judgment shows that theHon ble Supreme Court made this observations in that case regarding suitfor title ownership. Therefore it was held that since ownership was notproved therefore for the purpose of ownership the agreement claimed bythe person in that case qua Section 53 A of the Act could not have beenused for claiming title. So far as the suit qua protection of possession isconcerned the Hon ble Supreme Court has not laid down the law asclaimed by the counsel for the appellant. The Hon ble Supreme Court hasonly observed that in that particular case since the transaction claimed bythe person for availing the benefit of Section 53 A of the Act wascompulsory required to be registered and the same was not registered therefore the same could not be taken into evidence for any purpose whatsoever for his benefit. Therefore the suit for injunction was also heldto be not maintainable on his part. However in the present case as noticeabove the lower Appellate Court has rightly held that the agreement inquestion did not require any registration. Therefore the plaintiff could not 1 on 14 12 RSA 988 2011 & RSA 4886 201116be non suited even for the purpose of injunction claimed by him. Hence the Court below has rightly granted the injunction in favour of the plaintiff.Otherwise also Section 53 A of the Transfer of Property Actcreates a benefit in favour of a person who has a prior agreement in hisfavour along with the possession of land mentioned in the agreement. ThisSection creates a bar against the original owner or a person claiming titleunder him for claiming any right title or interest qua the land mentioned inthe agreement during the subsistence of such agreement. Therefore if hispossession is threatened then it is only the suit for injunction which can befiled by a person claiming benefit of Section 53 A of the Act. Needless tosay that if such a person is sued against then he will be entitled to take thesame as defence also. Hence so far as the possession is concerned once aperson claiming benefit of Section 53 A of the Act shows and proves theingredients of Section 53 A of the Act along with the requirement ofregistration of the same if any then he can very well use the agreement asa basis for filing a suit as plaintiff also. His remedy is not limited to takethe defence in case a suit is filed against him.So far as the plea of bona fide purchaser raised by the appellantis concerned the same also deserves to be rejected. He has claimed that heis a bona fide purchaser. A specific issue was framed regarding his status asa bona fide purchase. The onus of the proof of the same was upon thedefendant Rajender Singh. To claim the benefit of Proviso to Section 53 Aof the Act the defendant was required to prove that he had no notice of thetransaction in favour of the plaintiff. However beside making a claim thathe inspected the revenue record the defendant has not laid any factualfoundation or led any evidence on this point. So far as the entries in the 1 on 14 12 RSA 988 2011 & RSA 4886 201117revenue record are concerned the same are irrelevant in the present case.Although the land continues to be recorded in the revenue record however it is admitted between the parties that this land has become part of theresidential area. In the revenue record also it is recorded as gair mumkingait This by no means can betreated as an agricultural land. The presumption of the land beingagricultural land in this case is also excluded by the very fact that thepartition which was sought by Rajender Singh has been sought through theCivil Court and not through the Revenue Authorities. In view of this thejudgment rendered by this Court in 2005RCR677 titled as BalSingh and Ors. Vs. Ravinder Singh and Ors. is fully applicable. The lower Appellate Court is right in holding that once thedefendant Rajender Singh admitted that other co shares had also givenpossession to the plaintiff then it was bounden duty upon him to enquirefrom the plaintiff also before the proceeding further to purchase the land inquestion since the plaintiff admittedly is a co sharer in the suit land evenwith his seller Manphool Singh. However there is nothing on record eitherpleaded deposed or otherwise proved on record to show that any inquirywas ever made from the plaintiff by the defendant Rajender Singh beforepurchasing the suit land from Manphool Singh. Otherwise also the factsproved on record show that the defendant was residing in the adjacenthouse. The site plan as produced by the plaintiff has also been admitted bythe defendant. Still further it has been categorically admitted by thedefendant that he is not aware as to whether the plaintiff had takenpossession of the suit at the time of agreement which he claims in his 1 on 14 12 RSA 988 2011 & RSA 4886 201118favour or not. This is a kind of evasiveness on the part of the defendantregarding status of possession. This also shows that he had the knowledgeof the fact that the plaintiff had taken possession of the suit land at the timeof agreement mentioned in the plaint. Hence it was incumbent upon thedefendant Rajender Singh to inquire from the plaintiff before purchasing thesaid land. Otherwise also since the plaintiff was already a co sharer withManphool Singh so he shall be deemed to be in possession of every inch ofland with other co sharer. Hence since no reasonable inquiries has beenmade by the defendant Rajender Singh before purchasing the suit land therefore he cannot be held to be a bona fide purchaser. Another aspect which need to be noted is that the plaintiff Nanak Singh has categoricallydeposed that the defendant had the knowledge of existence of agreement infavour of Nanak Singh. Despite that even Nank Singh has not been cross examined on this point specifically. This also shows that the defendant Rajender Singh had the knowledge of the existence of the agreement infavour of Nanak Singh.No other argument was raised.Hence finding no perversity the judgment and decree passed bythe lower Appellate Court are upheld.In view of the above finding no merits both the appeals aredismissed.5th December 2017 [RAJBIR SEHRAWAT]Manju JUDGEWhether speaking reasoned :Yes NoWhether reportable :Yes No

NPA accounts cannot claim relief under recent RBI circulars and policy guidelines : Delhi High Court

Benefit of RBI circulars and policy guidelines are to be given to genuine borrowers and not those who have been defaulting since before the pandemic. The High Court Bench consisting of J. Prathiba M Singh, decided upon the matter of Amit Khaneja & Ors. v. IL & FS Financial Services Ltd. [W.P. (C) 3580/2020], and explained upon who could avail benefits during the pandemic under the RBI policy and rules. The Petitioners had availed various credit facilities from IL&FS between 2006 and 2018 after which, owing to defaults from their end, their account was classified as a Non-Performing Asset and out of the two properties mortgaged by the petitioners, one was taken over and an application under Section 14 of the SARFAESI Act was moved to take over the other property. The petitioners approached the DRT seeking for quashing of these proceedings which failed and thereafter the a writ petition was filed according to which the petitioners were to deposit a total of Rs. 10 crores within 2 weeks and the rest of the dues were to be cleared within 12 months. These directions were not complied to and the petitioners filed an application for modification of the deposit amount to Rs. 5 crores which was rejected. The two properties were taken over after which various One Time Settlement proposals were given by the petitioners which did not fructify. Hence, the IL&FS revoked the proposals through a letter which was challenged in the present writ petition. The counsel for the petitioner argued that based on the RBI circulars on ‘COVID-19 Regulatory Package’ as well as the RBI Policy Guidelines titled “Statement on Developmental and Regulatory Policies”, breathing time is to be given to borrowers and the revocation of the OTS proposals run contrary to the same.

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 23rd November 2020 Date of decision: 18th December 2020 W.P.(C) 3580 2020 & CM APPL. 12727 29 2020 21106 07 2020 AMIT KHANEJA AND ORS. Petitioners IL & FS FINANCIAL SERVICES LTD. Through: Ms. Meenakshi Arora Advocate with Mr. Vivek Jain Mr. Nirvikar Singh Mr. Manish Shekari & Mr. Zulfiquar Memon Advocates M:9990252039). Respondent Through: Mr. Rajeeve Mehra Senior Advocate with Mr. Atul Sharma Mr. Abu John Mathew Mr. Madhusudan Mr. Baiju Mathew Advocates for R 1 with Ms. Evneet Uppal AR of Respondent No.1 in person.Mr. Sudhir K. Makkar Senior Advocate with Ms. Saumya Gupta Advocate for R 2.JUSTICE PRATHIBA M. SINGH Prathiba M. Singh J. This judgment has been pronounced through video conferencing. 2. The present writ petition has been filed challenging the impugned letter dated 26th May 2020 sent by Respondent No.1 IL&FS Financial Services Ltd.by which it has revoked the in principle agreement for one time settlement with the Petitioners in relation to repayment of debt. The reliefs prayed for are set out below: “a) Issue a Writ of mandamus and or any other appropriate writ direction or order setting aside Respondent’s letter dated 26.05.2020 and grant W.P.(C) 3580 2020 all consequential reliefs b) Pass any appropriate writ direction or order directing the Respondent to extend the time by 3 terms of Respondent’s in principle agreement for one time settlement dated 03.03.2020 17.03.2020. for repayment under c) Issue a Writ of mandamus and or any other writ direction or order directing the Respondent to not take any coercive adverse steps against the subject properties of the Petitioners. d) Issue a Writ of mandamus and or any other appropriate writ order direction thereby directing the Respondent to not take any coercive adverse steps against the subject properties of e) pass any other order(s) as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.” Brief Background A perusal of the facts in the present case shows that the Petitioners had availed of various credit facilities from IL&FS between the period 2006 to 2018. Thereafter due to the defaults of the Petitioners in repayment a loan recall notice was issued way back in June 2018 and their account was classified as a Non Performing Asseton 1st July 2018. Out of the two properties which were mortgaged with IL&FS by the Petitioner physical possession of the Anand Lok property was taken over in 2018 itself and a Section 14 SARFAESI Act application was filed by IL&FS qua the Chattarpur property as well. A receiver was appointed qua the Chattarpur property by the ld. CMM. Thereafter the Petitioners approached the DRT in a Section 17 application being S.A. 281 2018 for seeking quashing of all proceedings W.P.(C) 3580 2020 initiated by IL&FS under the SARFAESI Act. The appointment of receiver by the ld. CMM in respect of the Chattarpur property was also challenged. In view of the fact that the DRT did not grant an interim order in the said application a writ petition was filed by the Petitioners being W.P.(C) 12091 2018 wherein the following directions were issued on 3rd November “10. At this stage Mr Chandhiok learned Senior Counsel states that the petitioners undertake to deposit a sum of ₹10 crores within a period of two weeks from today. He also submits that the petitioners would repay the entire dues within a period of 12 months from today. 11. The petitioners are bound down to the undertaking given on their behalf that they shall deposit a sum of ₹10 crores within a period of two weeks from today. In view of this undertaking this Court considers it apposite to direct that the Receiver shall not take over the possession of the property till the DRT considers the petitioners’ request for interim relief in accordance with As per the above directions a sum of Rs. 10 crores was to be deposited by the Petitioners within two weeks and the entire dues were to be cleared within 12 months. The Court recorded these statements on behalf of the Petitioners as undertakings. Admittedly these directions were not complied with and the undertakings given to the Court were not honoured. An application was also filed by the Petitioners for modification of the deposit amount to Rs.5 crores instead of Rs.10 crores which was rejected vide order dated 19th November 2018. Thereafter the DRT also dismissed S.A. 281 2018 on 19th July 2019 W.P.(C) 3580 2020 and finally possession was obtained of both properties by IL&FS. It was at this stage that settlement proposals were exchanged between the parties. Various proposals were given by the Petitioners for a One Time Settlement but the final proposal of Rs.100 crores was given on 10th January 2020 in respect of the outstanding loan of Rs.93 crores. On 3rd March 2020 the IL&FS agreed in principle for the payment of 100 crores at one go either by the Petitioners or by any third party on their behalf. However the same was subject to various conditions. The principal condition was that the entire amount was to be paid on or before 27th March 2020. The OTS did not fructify as the amounts could not be paid by the Petitioners in the period prescribed by IL&FS despite requests for extension. This finally led to IL&FS’s revocation of the said settlement proposal vide letter dated 26th May 2020. It is this revocation letter which is under challenge in the present writ petition. 10. The primary ground on which the writ petition is based are the RBI ‘COVID 19 Regulatory DOR.No.BP.BC.47 21.04.048 2019 20 27th March 2020 DOR.No.BP.BC.63 21.04.048 2019 20 dated 17th April 2020 and DOR.No.BP.BC.71 21.04.048 2019 20 dated 23rd May 2020 as well as the RBI Policy Guidelines titled “Statement on Developmental and Regulatory Policies”. Reliance on these circulars is made by the Petitioners on the ground that these Circulars are meant to give breathing time to borrowers and the revocation of the OTS proposal would run contrary to these circulars and guidelines. W.P.(C) 3580 2020 Submissions on behalf of the parties 11. Ms. Meenakshi Arora ld. Sr. counsel for the Petitioners submits that even in 2018 when the Petitioner’s account was classified as a NPA the Petitioners had made payments of approximately Rs.3.52 crores to IL&FS which itself shows their bonafide intentions. She further submits that though SARFAESI proceedings were started by IL&FS on 5th July 2018 and a prime property of the Petitioner in Anand Lok was also taken possession of no attempt has been made to dispose it off since 2018 and it is only now that the property is being put on sale on a deflated value. It is submitted that during this period real estate prices have increased by 22 25% which is a fact of which judicial notice can be taken. 12. Ms. Arora further submits that the Petitioner gave its OTS offer on 6th November 2019 and it was only five months later i.e. on 3rd March 2020 that the confirmation of their in principle agreement to OTS was received from IL&FS. The final settlement proposal with some corrections was finally issued to the Petitioner on 18th March 2020 with the direction that payments have to be made by 27th March 2020. This was however contrary to their understanding inasmuch as as per the proposal sent by the Petitioner 90 days’ time was sought from the date of acceptance of the OTS proposal till the date of payment. In fact it was offered that from the date of acceptance till the date of payment interest@9% per annum would also be payable to IL&FS. Thereafter in March 2020 the lockdown due to the Covid 19 pandemic took place and the entire OTS itself could not be 13. Ld. Sr. counsel seeks relief under the various RBI circulars which have provided relief to borrowers on loans and interest during the Covid 19 W.P.(C) 3580 2020 pandemic by extending the moratorium period till 31st August 2020. According to her the RBI circular dated 27th March 2020 gave benefit to borrowers on the principal amount interest as well as bullet repayment. In her submission bullet repayment would also include the OTS amount. Reliance is also placed upon the amendment in Section 10(a) of the Insolvency and Bankruptcy Code 2016by which the benefit of one year was given for insolvency proceedings to not be initiated during the lockdown period. The fact that the OTS amount was to be paid by 27th March 2020 and revocation was made on 26th May 2020 shows that the entire chain of events took place during the operation of first circular itself. 14. Reliance is also placed on the judgment in J. Rajiv Subramaniyan and Ors. v. Pandiyas and Ors. 5 SCC 651] to argue that the intention of the SARFAESI Act 2002 is to ensure that the secured asset earns maximum yield when being auctioned. According to Ms. Arora the outstanding principal amount was of Rs.93.5 crore whereas the OTS amount is Rs.100 crores. Recently IL&FS has sought to sell their entire loan portfolio at the outstanding principal amount. Ld. Sr. counsel submits that under such circumstances when the Petitioners are willing to honour the OTS amount which is over and above the outstanding principal amount the Petitioners’ request for further time deserves to be considered before auctioning of the two properties. 15. On a query from the Court as to the maintainability of the present writ petition ld. Sr. counsel submits that since the Petitioners are entitled to relief in view of the RBI circulars and the same has not been granted by the IL&FS accordingly the writ petition is maintainable. 16. On the other hand Mr. Rajeeve Mehra ld. Sr. counsel on behalf of W.P.(C) 3580 2020 the IL&FS challenges the maintainability of the present writ petition. He submits that the disputes between Petitioners and IL&FS are in the realm of contractual law. Moreover IL&FS has already invoked its statutory rights under the SARFAESI Act and it is also entitled to proceed in accordance with law by issuing auction notices and taking them to their logical conclusion in view of the defaults of the Petitioners. The Petitioners’ only remedy if any would be in terms of the SARFAESI Act and not by way of writ petition invoking the extraordinary jurisdiction of this Court. 17. Reliance is placed on UBI v. Satyavati Tondon[(SLP(C) No.10145 of 2010)] and the recent judgment of the Supreme Court in K. Virupaksha vs The State Of KarnatakaNo.57019) wherein it has been categorically held that once SARFESI proceedings have been commenced only the Debt Recovery Tribunalwould have powers to intervene and no intervention is permissible in writ jurisdiction. 18. On merits Mr. Mehra submits that IL&FS’s response on 3rd March 2020 was a counter offer to the Petitioner containing various conditions the principal one being that the entire sum of Rs.100 crores would have to be paid by 27th March 2020. The said counter offer made it very clear that it only contained an in principle agreement and no definite settlement was being entered into till the terms were agreed. Since the Petitioner did not respond to the said counter offer nor could it fulfil the conditions therein the offer was finally revoked by IL&FS in May 2020. 19. He further submits that the reason why the Anand Lok property could not be sold even though possession was taken in 2018 was due to various applications which were filed by M s Milky Investment and Trading under the SARFESI Act before the DRT. He submits that the order sheets thereto W.P.(C) 3580 2020 would show that IL&FS had not delayed the matter in any manner. 20. Mr. Mehra ld. Sr. counsel vehemently urges that neither of the RBI circulars protect any defaulters under the garb of the pandemic if they did not honour the loans which had become payable by or before the pandemic broke out. In the present case the declaration of the Petitioner’s account as NPA took place in 2018 and there is no existing loan. In fact the judgment of the DRT dated 19th July 2019 has upheld the liability of the amount to be recovered from the Petitioners under SARFAESI proceedings. It is submitted that the present case being one in which adjudication has taken place the RBI circulars which provided for a moratorium and interim relief for borrowers would not apply in the case of the Petitioners. Moreover since IL&FS has not invoked the IBC the amendment to Section 10(a) would be of no assistance to the Petitioner in any manner. 21. He further submits that the proposal of assignment of the loan offer cannot be a reason for the Petitioners to get any additional time to make the payments. Assignment just means that there is new party that may step in at a later stage. However the loan would still be recoverable. Reliance is placed upon the judgment of the ld. Division Bench in Haryana Steel and Alloys Ltd. v. IFCI Ltd. and Anr. 3580 2020 upon the RBI circulars is that these are beneficial measures taken by the government and the RBI in favour of borrowers who may be in difficult circumstances owing to the COVID 19 pandemic and the Petitioners ought to be entitled to the said benefits as well. 24. On instructions she submits that the Petitioners may be given time till 31st March 2021 to honour the OTS proposal for Rs.100 crores failing which IL&FS may be permitted to take steps in accordance with law. Analysis and Findings 25. The question that arises is whether the said RBI circulars and the RBI policy guidelines for COVID 19 would apply to the Petitioners and whether the Petitioner can in law pray that the revocation of the OTS proposal be quashed and IL&FS be directed to abide by the OTS proposal. 26. The facts that emerge in this case show that the Petitioners have been in default since 2018. Various legal proceedings have already commenced between the parties and in fact the reprieve given by the ld. Division Bench to the Petitioners vide order dated 3rd November 2018 was also not availed of by the Petitioners. Thus the Petitioners are not only in default of the loan but have also failed to adhere to undertakings given before the ld. Division Bench of this Court. The DRT has also vide its final order dismissed the challenge by the Petitioners to the SARFAESI proceedings initiated by the Respondent. The findings of the DRT in its final judgment order dated 19th July 2019 are as under: Record reveals that the applicants have admitted that the borrower availed the finance but failed to complete and construction projects envisaged to be completed with in some cases even start W.P.(C) 3580 2020 the finance availed attributing economic slowdown as the reason for that. Thus end use of the facility was not done in the terms of the agreement. In such a situation the respondent was justified in recalling the advance even in the so called moratorium period as the construction of projects were not started remained incomplete. In view of the above classification to NPA category by the respondent is justified even before the instalments fell due and were defaulted as claimed by the applicant on the happening of ‘event of The plea of the applicants that the recall notice was issued before the account being declared NPA has no footing as the respondent bank was within its rights to recall the advance any time. All the actions taken under the SARFAESI Act have admittedly been initiated after the NPA date i.e. 30.06.2018 and the applicants have failed to bring on record any violation of the rules in this regard.” 27. Thus the declaration of the Petitioner’s loan account as an NPA was upheld by the DRT. 28. The basic premise on which relief is being sought by the Petitioners is that one M s Puran Associates has sanctioned a loan of Rs.100 crores to the Petitioners and that the Petitioners ought to be given time to raise the money from the said NBFC and pay the same to IL&FS. It is for this purpose that apart from relying on the RBI circulars three months’ time was sought when the writ petition was filed to enable the Petitioners to raise the amounts to be paid to the Respondent. 29. This petition was first listed before this Court on 17th June 2020 on W.P.(C) 3580 2020 which date considering that there was in fact a letter by M s Puran Associates that it was willing to extend a loan of Rs.100 crores this Court had impleaded M s Puran Associates as Respondent No.2. Thereafter affidavits were sought from them. The stand taken by the said NBFC was that the letter dated 4th November 2019 confirming the sanction of a corporate loan to the Petitioners was subject to due diligence and verification of their various properties. Time was then sought by Respondent No.2 to complete the diligence and verification. 30. This Court had granted time on a few occasions owing to the lockdown to enable the NBFC to complete the diligence and verification. However finally since the valuation etc. was not concluded by the NBFC the final hearing commenced on 25th September 2020. Even thereafter till the conclusion of arguments there has been no development in terms of confirming payment of Rs.100 crores by the NBFC to the Petitioners. 31. On the last date Ms. Meenakshi Arora ld. Sr. counsel sought time till 31st March 2021 to honour the proposal of 100 crores to be paid to IL&FS in response to which ld. counsels for IL&FS stated that the OTS proposal stands revoked. It is in this background that the Court has to consider whether the Petitioners are entitled to any reliefs. A perusal of the RBI circulars and policy guidelines shows that these are meant for mitigating the burden of debt which may have been brought about due to the COVID 19 pandemic. This Court does not consider the present case as one wherein any disruption took place due to the COVID 19 pandemic. Even prior to the OTS proposal being given by the Petitioners the Petitioners were already in default. The response by IL&FS in March 2020 may not have given sufficient time to W.P.(C) 3580 2020 the Petitioners to make the payment in terms of the OTS. However the revocation of the OTS did not take place in March 2020 but in May 2020. Even thereafter since June 2020 to November 2020 the Petitioner had sufficient time to raise the money and pay IL&FS. However no payment has been forthcoming from the Petitioner. Despite the lapse of more than six months no concrete step was taken by the Petitioners to honour the OTS. 33. The circulars of the RBI and the guidelines thereunder relate to reliefs to be granted for payments of interest and declaration of accounts as NPAs etc. during the COVID 19 pandemic. These circulars and policy guidelines cannot lend any support to the Petitioners’ case where the defaults are prior to the outbreak of the pandemic itself. The legality of the revocation of the OTS in May 2020 cannot be tested on the benchmark of the recent RBI circulars and the policy guidelines inasmuch as these settlements are independent of the said circulars and guidelines. Moreover the RBI circular itself make it clear that the same is for “continuity of viable businesses” and not for accounts which are already declared as NPA as is in the present 34. The one time settlement proposal by IL&FS was in respect of a party which had already defaulted against whom legal proceedings had been initiated and properties which were mortgaged had already been taken possession of by IL&FS. Thus much water had flown in respect of the loan transactions after defaults by the Petitioner. This is not a case where some mitigating factors need to be considered or that the pandemic had caused any financial stress on the Petitioners. 35. Despite the Petitioners having sought three months’ time in the writ petition for finalizing the OTS proposal and raising of Rs.100 crores even W.P.(C) 3580 2020 the grants of six months’ time has proved to be insufficient. The present case does not relate to postponement of payment of instalments of loans or where any accounts would be classified as NPAs for defaults made during the COVID 19 pandemic. 36. While there is no doubt that the pandemic did cause disruption to normal business operations and genuine borrowers ought to be given the benefit of the RBI circulars and policy guidelines the Petitioners do not fall in that category. The defaults by the Petitioners date back to 2018. The defaults continued over a period of two years prior to the outbreak of the pandemic itself. Such cases cannot be those which would be entitled to benefits under the policies of the RBI which are meant to give some relief during the pandemic. 37. Moreover in the present case despite repeated opportunities having been given by the Division Bench at the stage when the DRT proceedings were going on and even after the filing of the present writ petition the same have been of no avail. No further relief can be granted. 38. Under these circumstances the writ petition is dismissed. The Respondent is permitted to proceed against the Petitioners in accordance with law. No further orders as to costs. All pending applications are disposed of. PRATHIBA M. SINGH DECEMBER 18 2020 W.P.(C) 3580 2020

Settlement done between parties by exercising the power conferred under 15JB of SEBI ACT,1992 – the securities and exchange board of India

Settlement done between parties by exercising the power conferred under 15JB of SEBI ACT,1992 – the securities and exchange board of India Applications were filed for separate settlement in terms of the SEBI (Settlement Proceedings) Regulations, 2018 for the settlement without admitting or denying the findings of fact and conclusions of law, through a settlement order, the pending enforcement proceedings initiated against the applicants for the alleged violation of Section 12A(a), (b) & (c) of the SEBI Act, 1992 read with Regulation 3(a), (b), (c),(d), 4(1) and 4(2)(q) of the SEBI (Prohibition of Fraudulent and Unfair Trade Practices Relating to Securities Market) Regulations, 2003. In the notice to show cause Mr.Akash Singhania, the fund manager of Deutsche Mutual Fund (hereinafter referred to as ‘DMF’), is alleged to have known investment and impending orders of DMF and based on the same, is alleged to have had opened four trading accounts for front running, through his parents and it is alleged that they have access to those trading accounts and were trading ahead of the orders of DMF and thus acted in concert to front-run the trades of DMF and earned a profit of ₹1,42,21,775/- According to the receipt of the applications, the authorized representatives of the applicants had a meeting with the Internal Committee of SEBI, and terms of the settlement were discussed and the High Powered Advisory Committee considered the settlement terms proposed by the applicants and recommended the case for settlement upon payment of ₹2,35,72,592and settlement amount along with a disgorgement of ₹1,42,21,775 wrongful gains with interest thereupon at the rate of 12% per annum amounting to ₹1,21,00,588. The exercise of the powers conferred under Section 15JB of the Securities and Exchange Board of India Act, 1992 and in terms of Regulations 23 read with Regulation 28 of the Settlement Regulations and conditions were mentioned for applicants by the authority. Click here to read the order

BEFORE THE SECURITIES AND EXCHANGE BOARD OF INDIA SO EFD 2 SD 394 DEC 2021 SETTLEMENT ORDER in Settlement Applications bearing Nos. 1. 6478 2021 Mr. Akash Singhania2. 6547 2021 Mr. Ashok Kumar Singhania3. 6548 2021 Ms. Premlata Singhaniain the matter of Deutsche Mutual Fund 1. Mr. Akash Singhania Mr. Ashok Kumar Singhania and Ms. Premlata Singhania filed separate settlement applications in terms of the SEBI Regulations 2018proposing to settle without admitting or denying the findings of fact and conclusions of law through a settlement order the pending enforcement proceedings initiated against the applicants for the alleged violation of Section 12A(a) &of the SEBI Act 1992 read with Regulation 3(a) b) (d) 4(1) and 4(2)(q) of the SEBI Regulations 2003 hereinafter referred to as “PFUTP Regulations”) vide Show Cause Notice bearing no. SEBI HO IVD ID17 P OW 2021 10538 1 dated May 20 2021. 2. In terms of the Notice to Show Cause served upon the applicants Mr. Akash Singhania the fund manager of Deutsche Mutual Fundis alleged to have had knowledge of investment and impending orders of DMF and on the basis of the same is alleged to have had opened four trading accounts for the purpose of front running through Settlement Order in respect of Mr. Akash Singhania and 2 others in the matter of Deutsche Mutual Fund. his parents Mr. Ashok Kumar Singhania and Ms. Premlata Singhania. It is alleged that Mr. Ashok Kumar Singhania and Ms. Premlata Singhania had access to the aforesaid trading accounts and were trading ahead of the orders of DMF and thus acted in concert to front run the trades of DMF and earned a profit of ₹1 42 21 775 in its meeting held on November 09 2021 considered the settlement terms proposed by the applicants and recommended the case for settlement upon payment of ₹2 35 72 592 as settlement amount along with disgorgement of ₹1 42 21 775 as wrongful gains with interest thereupon at the rate of 12% per annum amounting to ₹1 21 00 588 on joint and several liability basis. The aforesaid amounts were remitted by the applicants on December 13 2021. The credit of the above payments to SEBI is 5. In view of the above in exercise of the powers conferred under Section 15JB of the Securities and Exchange Board of India Act 1992 and in terms of Regulations 23 read with Regulation 28 of the Settlement Regulations it Settlement Order in respect of Mr. Akash Singhania and 2 others in the matter of Deutsche Mutual Fund. is hereby ordered that the pending enforcement proceedings for the alleged default as mentioned in paragraph 1 above are settled qua the applicants as per the following terms: i. SEBI shall not initiate enforcement action against the applicants for the said default this order disposes of the enforcement proceedings initiated by SEBI for the default as mentioned earlier in respect of the applicants and iii. passing of this Order is without prejudice to the right of SEBI under regulation 28 of the Settlement Regulations to take enforcement actions including continuing proceedings against the applicants if SEBI finds that: a. any representation made by the applicants in the present settlement proceedings is subsequently found to be untrue b. the applicants have breached any of the clauses conditions of undertakings waivers filed during the present settlement proceedings and c. there was a discrepancy while arriving at the settlement terms. 6. This settlement order is passed on this 22nd day of December 2021 and shall come into force with immediate effect. 7. In terms of Regulation 25 of the Settlement Regulations a copy of this order shall be sent to the applicants and also be published on the website of SEBI. sd S.K. MOHANTY ANANTA BARUA WHOLE TIME MEMBER WHOLE TIME MEMBER sd Settlement Order in respect of Mr. Akash Singhania and 2 others in the matter of Deutsche Mutual Fund.

This Court finds no ground to interfere with the impugned order at the interim stage. Accordingly, the present application is dismissed: Delhi High Court

The court found no reasonable grounds for the impugned order in the interim relief period to be interfered with and therefore the Coram of Hon’ble Mr. Justice Manmohan and Hon’ble Mr. Justice Navin Chawla [FAO (COMM) 138/2021] rejected the present application. The present is an appeal petition filed to challenge the order dated 30th March 2021 passed by the learned District Judge, Commercial Court-5, Central District, Tis Hazari Courts, Delhi in CS Comm. No. 1724/2020, which prohibits the appellant from trading and selling certain namkeen products under the mark of “Gulab”. The counsel from the appellant side has stated that the getup, color combination, style or pattern of writing alphabet as well as the picture of rose printed on the products of the appellant is completely different from that of the respondent, furthermore, the sales being done by the plaintiff are not related with that of Namkeen and is of other items. The Honorable Delhi High Court in their judgment finds the two marks in question and are prima facie of the view that both the marks are not identical. The present court however went into the judgment of the trial court whose reasoning is of prime importance for the present decision. The trial court has noted that “After considering the facts and circumstances of the present case, I am of the view that goodwill and reputation of the firm M/s. Shivnath Rai Sumerchand has so closely associated with the trademark ‘Gulab’ that ordinary purchaser just identify the products of the plaintiff by simply asking about the trademark and nothing else. The products of the plaintiff are recognized and purchased only by name of trademark ‘Gulab’ and after seeing the picture of rose flower on the packaging” Furthermore “It is also revealed from the documents of the parties that M/s. Shivnath Rai Sumerchand firm now owned by the plaintiff no. 1 has started selling namkeen items since year 2000 with the trademark ‘Gulab’ whereas predecessor of defendant company namely M/s. Pankaj Industries started selling namkeen items with same trademark ‘Gulab’ since year 2008 and thus plaintiff no. 1 is entitled to seek injunction against defendant on the basis of passing off also despite existence of big dissimilarity in packaging” The Delhi High Court in the present decision focused upon the Supreme Court’s decision in the case of Wander Ltd and Anr. v. Antox India P. Ltd., 1990 (Supp) SCC 727, which has held that in the appeals before the Division Bench against the exercise of discretion by the Trial Court, the appellate court will not interfere with the exercise of such discretion of the court of the first instance and substitute its discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principle of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Therefore because of the above reason, the present Delhi High Court found no grounds for the interference of the impugned order at the interim stage. Thus the application was dismissed.

IN THE HIGH COURT OF DELHI AT NEW DELHI FAO138 2021 M S GULAB OIL AND FOODPVT. LTD. Through Mr. Amit Sibal Sr. Adv. with Appellant Mr. YJ Jasani Mr. Pratik Jasani Mr. Nikhil Goel and Mr. Aniruddha Deshmukh SMT. MADHU GUPTA ..... Respondent Through Mr. Sanjeev Singh Advocate. Date of Decision: 16th September 2021 HON BLE MR. JUSTICE MANMOHAN HON BLE MR. JUSTICE NAVIN CHAWLA MANMOHAN J.The hearing has been done by way of video conferencing. CM APPL. 31712 2021 Exemption allowed subject to all just exceptions. Accordingly application stands disposed of. FAO138 2021 FAO138 2021 Admit. Issue notice. Mr. Sanjeev Singh Advocate accepts notice on behalf of respondent. He prays for and is permitted to file a reply affidavit within eight weeks. Rejoinder affidavit if any be filed before the next date of hearing. List before the Joint Registrar for completion of pleadings on December 2021. Upon completion of pleadings the Joint Registrar is directed to list the matter in the final hearing list according to its seniority. CM APPL. 31852 2021 Present appeal has been filed by the appellant challenging the March 2021 passed by the learned District Judge order dated 30 Commercial Court 5 Central District Tis Hazari Courts Delhi in CS Comm. No. 1724 2020 to the limited extent that it prohibits the Appellant Defendant No.1 from trading and selling Namkeen products under the mark ‘Gulab’ and certain findings regarding the predecessor of the Appellant Defendant No.1. Learned senior counsel for the Appellant states that the getup colour combination style or pattern of writing alphabet as well as the picture of rose printed upon the packaging of the goods of the Appellant Defendant No.1 and the Respondent plaintiff No.1 are totally different. He further states that the documents for sale filed on record by the plaintiff are related to sale of other items and not of Namkeen. He submits that the Respondent stopped selling Namkeen FAO138 2021 in 2014. Though the Plaintiffs claimed sales of Namkeen by Plaintiff No. 2 however by the impugned order Plaintiff No. 2 has been found to be having no locus standi to maintain the suit and has now been deleted from the array of the parties. He submits that therefore the respondent plaintiff no. 1 cannot maintain the suit and is not entitled to any injunction. 3. We have perused the two marks in question and are prima facie of the view that they are similar if not identical. In any event the products of the plaintiff are sold across the counter to consumers who ask for ‘Gulab’ products. The Trial Court in the impugned order has held as under: “…it is hereby held that ordinary intelligent person will certainly be confused even at first impression look of the namkeen products of the defendant and he will think at first glance that the same belongs to the plaintiffs and accordingly defendant is liable to be injuncted for misuse of trade name Gulab registered in favour of the plaintiffs since year 1944. …After considering the facts and circumstances of the present case I am of the view that goodwill and reputation of the firm M s. Shivnath Rai Sumerchand has so closely associated with the trademark ‘Gulab’ that ordinary purchaser just identify the products of the plaintiff by simply asking about the trademark and nothing else. The products of the plaintiff are recognized and purchased only by name of trademark ‘Gulab’ and after seeing the picture of rose flower on the packaging. It is also revealed from the documents of the parties that M s. Shivnath Rai Sumerchand firm now owned by the plaintiff no. 1 has started selling namkeen items since year 2000 with the trademark Gulab whereas predecessor of FAO138 2021 defendant company namely M s. Pankaj Industries started selling namkeen items with same trademark Gulab since year 2008 and thus plaintiff no. 1 is entitled to seek injunction against defendant on the basis of passing off also despite existence of big dissimilarity in packaging. Firm M s. Shivnath Rai Sumerchand got registered trademark ‘Gulab’ for its sweets item mainly Gajak and Rewari in the year 1944 under class 30 though it started selling namkeen items much later and on the basis of registered trademark also due to allied and cognate good it is entitled to the interim protection...” 4. Moreover the predecessor of the plaintiff has been found by the Trial Court to be the prior user and registered owner of the mark with regard to ‘Gajjak’ and ‘Rewari’. Since ‘namkeen’ is an allied and cognate product this Court is of the view that Section 29 of the Trade Marks Act 1999 would also be prima facie attracted to the present case. As far as alleged non user of the mark by the plaintiff no. 1 is concerned the learned Trial Court has held that the plaintiff no. 1 by permitting the plaintiff no. 2to use the mark does not cease to be owner thereof. The Supreme Court in Wander Ltd and Anr. v. Antox India P. Ltd. 1990 SCC 727 has held that in the appeals before the Division Bench against the exercise of discretion by the Trial Court the appellate court will not interfere with the exercise of such discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily or capriciously or perversely or where the court FAO138 2021 had ignored the settled principle of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. In view of the aforesaid parameters this Court finds no ground to interfere with the impugned order at the interim stage. Accordingly the present application is dismissed. The order be uploaded on the website forthwith. Copy of the order be also forwarded to the learned counsel through e mail. MANMOHAN J NAVIN CHAWLA J SEPTEMBER 16 2021 FAO138 2021

Section 311 CRPC – the recall of witness power to be invoked to meet the ends of justice for strong and valid reasons with cautions and circumspection: High Court of Allahabad

Petitioner seeks a direction to the respondent to recall of witness power to be invoked to meet the ends of justice for strong and valid reasons with cautions and circumspection, and the same issue was held in the judgement passed by a division bench judges Hon’ble Dr Yogendra Kumar Srivastava, J in the matter Manish vs. State of U.P. and others – [ APPLICATION U/S 482 No. – 23428 of 2021] dealt with an issue mentioned above. In this case, the learned counsel for the petitioner submits that’s the Heard Sri Sanjay Mishra, learned counsel for the applicant and Ms Sushma Soni, learned Additional Government Advocate appearing for the State-respondents. The present application under section 482 Cr.P.C. has been filed seeking to quash the order dated 21.09.2021 passed by the Additional Sessions Judge/FTC Court No.2, Mainpuri in S.T. No. 393 of 2013 (State vs. Manish and another) arising out of Case Crime No. 407 of 2012, under Sections 452, 302, 364, 201, 34 IPC, P.S. Karhal, District Mainpuri, whereby the application under Section 311 Cr.P.C. moved by the applicant has been rejected.  While considering the application filed by the accused-applicant under Section 311 Cr.P.C. the learned trial court has taken notice of the fact that the case was at the stage of final arguments and the witness (PW-1) who was sought to be summoned in terms of the said application had already appeared and had been cross-examined at length by the counsel of the accused-applicant. The trial court on the basis of the aforestated facts has taken a view that in case the accused applicant wished to impeach the testimony of the PW-1 it would be open for him to do so during the course of final arguments and the application under Section 311 Cr.P.C. at this advanced stage of proceedings was only with a view to causing a delay in disposal of the case. The application under section 311 Cr.P.C. seeking recall of the 2 witnesses was accordingly rejected. In U.T. of Dadra and Nagar Haveli v Fatehsinh Mohansinh Chauhan2, while considering the power of the court to summon material witnesses under Section 311 Cr.P.C., it was opined that the said power can be exercised only with the object of finding out the truth or obtaining proper proof of facts which may lead to a just and correct decision. The court perused the facts and arguments presented, it was the opinion that – “ The power conferred has been held to be discretionary and is to enable the court to determine the truth after discovering all relevant facts and obtaining proper proof thereof to arrive at a just decision in the case. The power conferred under Section 311 is to be invoked by the court to meet the ends of justice, for strong and valid reasons and it is to be exercised with great caution and circumspection. The determinative factor in this regard would be whether the summoning or recall of the witness is in fact, essential to the just decision of the case keeping in view that fair trial – which entails the interests of the accused, the victim and of the society – is the main object of the criminal procedure and the court is to ensure that such fairness is not hampered or threatened in any manner. The aforementioned legal position has been discussed in detail in a recent decision of this court in Ajmer vs. the State of U.P.9. Learned counsel for the applicant has not disputed the fact that the trial is at the stage of final arguments. It is also not disputed that the PW-1 had duly appeared as a witness and was cross-examined by the counsel for the accused-applicant at length. Counsel for the applicant has not been able to dispute the aforestated legal position with regard to the exercise of the power of the court under Section 311 Cr.P.C. and has not been able to point out any material error or illegality in the exercise of the aforesaid discretion by the court below so as to warrant interference. 9 2021 (115) ACC 409 7 . Having regard to the aforesaid, this court is not inclined to exercise its inherent jurisdiction under Section 482 Cr.P.C. to interfere in the matter.

Court No. 85 Case : APPLICATION U S 482 No. 234221 Applicant : Manish Opposite Party : State Of U.P..And Another Counsel for Applicant : Sanjay Mishra Counsel for Opposite Party : G.A Hon ble Dr. Yogendra Kumar Srivastava J Heard Sri Sanjay Mishra learned counsel for the applicant and Ms. Sushma Soni learned Additional Government Advocate appearing for the State respondents The present application under section 482 Cr.P.C. has been filed seeking to quash the order dated 21.09.2021 passed by the Additional Sessions Judge FTC Court No.2 Mainpuri in S.T. No. 3913 State vs. Manish and another) arising out of Case Crime No. 4012 under Sections 452 302 364 201 34 IPC P.S. Karhal District Mainpuri whereby the application under Section 311 Cr.P.C. moved by the applicant has been rejected. 3. While considering the application filed by the accused applicant under Section 311 Cr.P.C. the learned trial court has taken notice of the fact that the case was at the stage of final arguments and the witness PW 1) who was sought to be summoned in terms of the said application had already appeared and had been cross examined at length by the counsel of the accused applicant. The trial court on the basis of the aforestated facts has taken a view that in case the accused applicant wished to impeach the testimony of the PW 1 it would be open for him to do so during the course of final arguments and the application under Section 311 Cr.P.C. at this advanced stage of proceedings was only with a view to cause delay in disposal of the case. The application under section 311 Cr.P.C. seeking recall of the witness was accordingly rejected. Learned Additional Government Advocate has submitted that the power to summon witnesses under Section 311 Cr.P.C. is purely discretionary and in the present case the trial being at the stage of final arguments the application filed by the applicant informant could not be said to be bona fide and the court below having exercised its discretionary jurisdiction in the matter no interference was called for The nature and scope of the power of the court to summon examine recall and re examine any witness in the context of Section 311 Cr.P.C. was subject matter of consideration in Mohanlal Shamji Soni v Union of India and another1 and it was held that the power in this regard is in the widest terms exercisable at any stage so long as the court is in seisin of the proceeding as may be considered essential for a just decision of the In U.T. of Dadra and Nagar Haveli v Fatehsinh Mohansinh Chauhan2 while considering the power of the court to summon material witnesses under Section 311 Cr.P.C. it was opined that the said power can be exercised only with the object of finding out the truth or obtaining proper proof of facts which may lead to a just and correct decision. The nature scope and object of Section 311 Cr.P.C. came to be extensively discussed in Zahira Habibullah Sheikhand another v State of Gujarat and others3 and a view was taken that the underlying object of the provision is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. A similar view was reiterated in P. Sanjeeva Rao v State of A.P.4 after referring to the earlier decisions in Hoffman Andreas v Inspector of Customs5 Mohanlal Shamji Soni v Union of India4 and Maria Margarida Sequeria Fernandes v Erasmo Jack de Considering the scope and object of Section 311 Cr.P.C. in Natasha Singh v CBI7 it was held that the power conferred is to be invoked by the court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with great caution and circumspection. The nature and scope of the powers to be exercised by the court under Section 311 Cr.P.C. was elaborately considered in the case of Rajaram Prasad Yadav v State of Bihar and another8 and after considering the earlier precedents the principles to be followed by the courts with regard to exercise of powers under the said section have been explained and enumerated. It has been stated thus: “14. A conspicuous reading of Section 311 CrPC would show that widest of the powers have been invested with the courts when it comes to the question of summoning a witness or to recall or re examine any witness already examined. A reading of the provision shows that the expression “any” has been used as a prefix to “court” “inquiry” “trial” “other proceeding” “person as a witness” “person in attendance though not summoned as a witness” and “person already examined”. By using the said expression “any” as a prefix to the various expressions mentioned above it is ultimately stated that all that was required to be satisfied by the court was only in relation to such evidence that appears to the court to be essential for the just decision of the case. Section 138 of the Evidence Act prescribed the order of examination of a witness in the court. The order of re examination is also prescribed calling for such a witness so desired for such re examination. Therefore a reading of Section 311 CrPC and Section 138 Evidence Act insofar as it comes to the question of a criminal trial the order of re examination at the desire of any person under Section 138 will have to necessarily be in consonance with the prescription contained in Section 311 CrPC. It is therefore imperative that the invocation of Section 311 CrPC and its application in a particular case can be ordered by the court only by bearing in mind the object and purport of the said provision namely for achieving a just decision of the case as noted by us earlier. The power vested under the said provision is made available to any court at any stage in any inquiry or trial or other proceeding initiated under the Code for the purpose of summoning any person as a witness or for examining any person in attendance even though not summoned as witness or to recall or re examine any person already examined. Insofar as recalling and re examination of any person already examined the court must necessarily consider and ensure that such recall and re examination of any person appears in the view of the court to be essential for the just decision of the case. Therefore the paramount requirement is just decision and for that purpose the essentiality of a person to be recalled and re examined has to be ascertained. To put it differently while such a widest power is invested with the court it is needless to state that exercise of such power should be made judicially and also with extreme care and caution x x x 17. From a conspectus consideration of the above decisions while dealing with an application under Section 311 CrPC read along with Section 138 of the Evidence Act we feel the following principles will have to be borne in mind by the courts 17.1. Whether the court is right in thinking that the new evidence is needed by it Whether the evidence sought to be led in under Section 311 is noted by the court for a just decision of a 17.2. The exercise of the widest discretionary power under Section 311 CrPC should ensure that the judgment should not be rendered on inchoate inconclusive speculative presentation of facts as thereby the ends of justice would be defeated 17.3. If evidence of any witness appears to the court to be essential to the just decision of the case it is the power of the court to summon and examine or recall and re examine any such 17.4. The exercise of power under Section 311 CrPC should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts which will lead to a just and correct decision of the case 17.5. The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case unless the facts and circumstances of the case make it apparent that the exercise of power by the court would result in causing serious prejudice to the accused resulting in miscarriage of justice 17.6. The wide discretionary power should be exercised judiciously and not arbitrarily 17.7. The court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case 17.8. The object of Section 311 CrPC simultaneously imposes a duty on the court to determine the truth and to render a just 17.9. The court arrives at the conclusion that additional evidence is necessary not because it would be impossible to pronounce the judgment without it but because there would be a failure of justice without such evidence being considered 17.10. Exigency of the situation fair play and good sense should be the safeguard while exercising the discretion. The court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence the court should be magnanimous in permitting such mistakes to be rectified 17.11. The court should be conscious of the position that after all the trial is basically for the prisoners and the court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused The court should bear in mind that improper or capricious exercise of such a discretionary power may lead to undesirable 17.12. The additional evidence must not be received as a disguise or to change the nature of the case against any of the 17.13. The power must be exercised keeping in mind that the evidence that is likely to be tendered would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party 17.14. The power under Section 311 CrPC must therefore be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care caution and circumspection. The court should bear in mind that fair trial entails the interest of the accused the victim and the society and therefore the grant of fair and proper opportunities to the persons concerned must be ensured being a constitutional goal as well as a human right.” The power to summon material witnesses under Section 311 Cr.P.C. which falls under Chapter XXIV containing the general provisions as to inquiries and trials has been held to confer a very wide power on the courts for summoning witnesses and accordingly the discretion conferred is to be exercised judiciously as wider the power the greater is the necessity for application of judicial mind The power conferred has been held to be discretionary and is to enable the court to determine the truth after discovering all relevant facts and obtaining proper proof thereof to arrive at a just decision in the case. The power conferred under Section 311 is to be invoked by the court to meet the ends of justice for strong and valid reasons and it is to be exercised with great caution and circumspection. The determinative factor in this regard would be whether the summoning or recalling of the witness is in fact essential to the just decision of the case keeping in view that fair trial which entails the interests of the accused the victim and of the society is the main object of the criminal procedure and the court is to ensure that such fairness is not hampered or threatened in any manner The aforementioned legal position has been discussed in detail in a recent decision of this court in Ajmer vs. State of U.P.9 Learned counsel for the applicant has not disputed the fact that the trial is at the stage of final arguments. It is also not disputed that the PW 1 had duly appeared as witness and was cross examined by the counsel for the accused applicant at length. 15. Counsel for the applicant has not been able to dispute the aforestated legal position with regard to the exercise of power of the court under Section 311 Cr.P.C. and has not been able to point out any material error or illegality in the exercise of the aforesaid discretion by the court below so as to warrant interference 9 2021ACC 409 16. Having regard to the aforesaid this court is not inclined to exercise its inherent jurisdiction under Section 482 Cr.P.C. to interfere in the matter The application stands accordingly dismissed Order Date : 22.11.2021 Dr. Y. K. Srivastava J